Skip to main content

Full text of "The American and English railroad cases; a collection of all the railroad cases in the courts of last resort in America and England [1879?-1895] .."

See other formats 


Google 


This  is  a  digital  copy  of  a  book  that  was  preserved  for  generations  on  library  shelves  before  it  was  carefully  scanned  by  Google  as  part  of  a  project 

to  make  the  world's  books  discoverable  online. 

It  has  survived  long  enough  for  the  copyright  to  expire  and  the  book  to  enter  the  public  domain.  A  public  domain  book  is  one  that  was  never  subject 

to  copyright  or  whose  legal  copyright  term  has  expired.  Whether  a  book  is  in  the  public  domain  may  vary  country  to  country.  Public  domain  books 

are  our  gateways  to  the  past,  representing  a  wealth  of  history,  culture  and  knowledge  that's  often  difficult  to  discover. 

Marks,  notations  and  other  maiginalia  present  in  the  original  volume  will  appear  in  this  file  -  a  reminder  of  this  book's  long  journey  from  the 

publisher  to  a  library  and  finally  to  you. 

Usage  guidelines 

Google  is  proud  to  partner  with  libraries  to  digitize  public  domain  materials  and  make  them  widely  accessible.  Public  domain  books  belong  to  the 
public  and  we  are  merely  their  custodians.  Nevertheless,  this  work  is  expensive,  so  in  order  to  keep  providing  tliis  resource,  we  liave  taken  steps  to 
prevent  abuse  by  commercial  parties,  including  placing  technical  restrictions  on  automated  querying. 
We  also  ask  that  you: 

+  Make  non-commercial  use  of  the  files  We  designed  Google  Book  Search  for  use  by  individuals,  and  we  request  that  you  use  these  files  for 
personal,  non-commercial  purposes. 

+  Refrain  fivm  automated  querying  Do  not  send  automated  queries  of  any  sort  to  Google's  system:  If  you  are  conducting  research  on  machine 
translation,  optical  character  recognition  or  other  areas  where  access  to  a  large  amount  of  text  is  helpful,  please  contact  us.  We  encourage  the 
use  of  public  domain  materials  for  these  purposes  and  may  be  able  to  help. 

+  Maintain  attributionTht  GoogXt  "watermark"  you  see  on  each  file  is  essential  for  in  forming  people  about  this  project  and  helping  them  find 
additional  materials  through  Google  Book  Search.  Please  do  not  remove  it. 

+  Keep  it  legal  Whatever  your  use,  remember  that  you  are  responsible  for  ensuring  that  what  you  are  doing  is  legal.  Do  not  assume  that  just 
because  we  believe  a  book  is  in  the  public  domain  for  users  in  the  United  States,  that  the  work  is  also  in  the  public  domain  for  users  in  other 
countries.  Whether  a  book  is  still  in  copyright  varies  from  country  to  country,  and  we  can't  offer  guidance  on  whether  any  specific  use  of 
any  specific  book  is  allowed.  Please  do  not  assume  that  a  book's  appearance  in  Google  Book  Search  means  it  can  be  used  in  any  manner 
anywhere  in  the  world.  Copyright  infringement  liabili^  can  be  quite  severe. 

About  Google  Book  Search 

Google's  mission  is  to  organize  the  world's  information  and  to  make  it  universally  accessible  and  useful.   Google  Book  Search  helps  readers 
discover  the  world's  books  while  helping  authors  and  publishers  reach  new  audiences.  You  can  search  through  the  full  text  of  this  book  on  the  web 

at|http: //books  .google  .com/I 


,i„cdb,C,oogle 


lib,  Google 


lib,  Google 


lib,  Google 


lib,  Google 


idb,Go(5glc 


lib,  Google 


idb,Go(5glc 


lib,  Google 


AMEEICAN 

AND 

ENGLISH 

Railroad  Cases 


A  COUXCnON  OP  AU.  THK 

Rajlsoao  Oases  in  the  Oodrts  of  Last  REsosr  ik  Ahbrica 
AND  England. 


Edited  by  JOHN  HOUSTON  MERRILL, 


VOL.    XXXL 


NOBTHPOHT,  LONG  ISLAND,   N.  T. 

EDWARD   THOMPSON,  Ppblishbs. 


Digitized  by  Google 


By  EDWARD  THOMPSON. 


Digitized  by  Google 


TABLE 

OF  THE  CASES   UEPORTED. 


BiiUUviu  e.  Kouus : ; 

Baltimore  A  O.  R.  Co.,  Kent  e : 

B&unoa  c.  State. i 

Barteme jor  ei  at.  v.  HoblfB  etal.... 

Baumefster,  Admit., o.  Qrand  Rap- 
ids, etc..  R.  Co ; 

Beidelmaii,  Dow  tt  al.  v. 

Benson,  Mempbfs  &  C.  R.  Co  p.. . 

Berry  .Texas  &  NewOricans  R.Co,e. 

BetlH.  AtcbisoD,  i-tc.  R.  Co.  e 

Boston  &  A.  R.  Co  ,  Marshall  e. . . 

Boston  &  Albany  It.  Co.  r.  Boston 
&  Lowell  'R.Co.ttal ( 

BosioD  &  Lowell  It.  V.o.  el  al.,  Bos- 
ton &  Altinny  R.  Co.  v I 

Bo-iton  A  Lowell  li.  Co.  et  at.  Ver- 
moiit  State  Orange  t i 

Boslon,  etc.,  R.  Co. .  Clark  d i 

BroivD.  Adtnx,,  Lake  Shore  &  M. 
8.  R  Co.  IF 

Eia'lington.  Cedar  Rapids,  etc.,  B. 
Co..  Reed  e 

Biirliiiglon,  etc.,  R.  Co.,  Griffith, 

Burlin^on,  etc.,  R.  Co.,  Moore  e..  I 

Campbell.  Coatcs  « ■ 

Carpenters. Waahington&a.R.Co.  : 
Carper,  Adnir.,  Ciuciiimiti,  Hamil- 
ton, etc. ,  R.  Co.  r      

Central  Iowa  R.  Co.,  Everett  o I 

Central  lown  R.  Co.,  Ral)en  c 


r   tJniCBgo,  etc.,  R.  Co..  Peterson  u. .  2 

r   Cliicago,  etc.,  R,  Co.,  Timins*....  B 

\  Chicago,  etc.,  B.  Co.,  Toner  e 8 

I  Chicago,  etc.,  R.  Co.  p.  Hoyt 8 

I  Chicago,  etc..  R.  Co.  i.  People  «x 

r«.^eip 4 

\  Chicago.  Milwaukee  *  St.  Paul  R. 

1       Co.,  Lindsley  t 

I   Chicago,  R.L  &  P.  R.  Co..  Hillise.  1 

■  ChicajTo.  Rock  Island,  etc,,  R.  Co.. 

I  ,    Haugi,  Admr.  t^ 1 

I   Chrystal  e,  Troy,  etc. .  R,  Co   4 

CincinnBti,  el:*.,  It.  Co.  f.  Jones...  4 

•  ClnciJionll,  Hamilton,  etc..  R.  Co. 

p.  Carper.  Ailmr. 

I    Cincinnati,   Indianapolis,   etc..    R. 

Co.  V.  Long,  Admr. 1. 

•  CiW  of  Adrian  *(o(.,  Lenawee  Co. 

I       fevines  Bank  b 4 

City  of  Dcs  Moines.  Loughran  e. . .  8 

City  of  Detroit,  Defer  0  3 

(iity  of  Detroit,  Osborne  b 2 

I  City  of  Le  Mars.  Alline  v 'i 

Clarke.  BoBton.  etc.,  R.  Co 6 

■  I  Cleveland,  etc.,  R.  Co.,  Gregory  o.  4 

I I  Coates  o.  (Campbell 4 

t.Coltnau.   Admr.   Louisville,   etc., 

l|    R.Co.  p a 

Columbus   &   Western    R.   Co.   t. 

I       Kennedy I 

I    Coops  B.  Lake  Shore,  etc.,  R,  Co, .   3 
ilcottrell,  Norfolk  &  W.  R,  Co.  r...  2 


j.vCoo^^lc 


TABLE  OP  CASKS   REPORTED. 


County  of  Todd  e.  St.  Paul,  etc.. 

K.  Co ■ 

Culler  7>.  North  Iioadon  R.  Co 

ItanncuttB  e.  Cheanpenke  &  Ohio  R, 
Ddaware  &  Hudson  C'tmal  Co.  et 

al.,  ThftlchLT  » 

Delaware,  etc.,  R.  Co.,  Bhennan  c. 
Delaware,  etc.,  R.  Co.  «.  Central 

Siock-yard,  etc.,  Co 

Denver,  elc,  U.  Co.  v.  Harris 

iJeuvur,  ete,,  R.  Co.  e.  Ucndereon. 
Detroit,  Qrand  Haven,  etc.,  R.  Co., 

Tuttle  B 

District  of  f  Columbia,  Anglo- Am eri- 

Diviiie,  State  p 

Dow  «t  al.  t.  Bcidclinaii 

Diinhani,  MIsHouri  Pac.  R.  Co.  «t 

oi.r... ■. 

Dunlap,  Peuiwylvanift  Co.  * 

EiiHt  T<-iiu.,  euv.  R.  Co.  e.  King. .. 
Eust  Teun.,  do  ,  R.  Co.  b.  Maloy.. 
Einmorl,Norfolk&WcstemR.Co.«. 
Euli-iiiks,  Little  Rock  &  Fort  Smith 

R  Co.  e 

Evi-reii  0.  Central  Iowa  H.  Co 

Farjro  B.  SteveiiB. 

Fnrvcr,  Wabaab,  St.  LouisA  Padflc 

R  Co,  e 

Flint,  eic,  R.  Co..  Hewitt  e 

Forbwi,  LeaTcnworth,  etc.,  R.  Co.  o. 
Fort  Wayne,  etc  ,  R  Co.  v.  Wood- 

Frankiip,  Adrar.,  c.  Winona  &  St 

PeliT  R.  Co 

Gntriieyf.  New  York,  etc.,  H.  Co. 
GHibi'S.  Charlotte,  etc..  R.  (to.  e. .. 
Gowcr,  Louisville  &  Nashville  R.  «. 
Grand  Itapids,  etc,  R.  Co.,  Bau- 

nieixtcr.  Aduix..  « 

Gnind  Street  &  Newtown  R.  Co.. 

Staal  B 

Qreeo  Bay,  etc.,  R.Co..  Hullehan  v. 
Gregory,  Admr.,  o.  Cleveland,  etc., 

R.  Co 

GritBih,  Admr., o.  Burlington, etc., 

R,  Co 

Grimes  v.  Minneapolis,  L.  &  H.  B. 
Grimmell  b.  Chicago,  etc.,  R.  Co. . 

Giilline  e.  City  of  Lowell 

Hnniiibal  ■&   St.    Joseph  R.  Co., 

Tablers 

Harris,  Denver,  etc.,  R.  Co.  e 

Hnrwell  «t  al.  v.  Columbus,  etc., 

R.  Co.ftal 

Haugh.  Admr.,  e.  Cbicago,  Rock 

Islaud,  eic,  R.  Co 

Hawke.  Pennsylvania  R.  Co 

Hawk.  Wabash,  etc.,  R.  Co.  b.  . . . 
Hawkins.  Illinois Cfnt.  R.  Co.  b... 
Hoildlewou,  Alabama  0.  B.  R.Co.  e. 


Henderson,  Denver,  etc.,  R.  Co.  o.  5 
I   HendeiBon  «.  Louisville  &  Nash- 
i      villeR 

'   Hewitts.  Flint,  etc.  R.  Co 2 

Hillia  ».  Chicago,  R,  I.  &  P.  R.  Co.  1 

'   Hoyt,  Chicago,  etc..  R.  Co.  e 8 

i    Hughes,   Iniemational,     etc.,     R. 

Co  B e 

I    Huhn  B.  HiBHOoii  Pac.  R.  Co S 

I    Hullebane  Green  Bay. etc,  R.Co.  3 

I   Illinois  Cent.  R.  Co..  Sedgwick  b.  .  2 

Illiuoia Cent.  R.  C:r,.  b.  Hawkins.,.  5 

Illinois  Cent.  R.   Co.  b.  Trousdne, 

■    aai. 

'   Illinois,   etc.,   tt.   &    Coal    Co.   b. 

i       Slookey A 

I   /wra  Piiciac  Railway  Commiadon.  G 
International,  etc.,  RaUnwd  Co.  «. 

I       Hughes 6 

!  Jebbo.  Chicago,  etc.,  R.  Co S 

i   Jonea.  Cincinnati,  etc.,  R.  Co  e,,..  A 
I   Sennedy,  Columbus  &  Weaiem  R. 

\  Co.! 

Kent  T.  Bsllimore  <!b  O.  R  Co 1 

I    Kevser  t.  Cbicago,  etc.,  R.  Co 3 

)   King.£aatTenn.,etc.,  R.  Co.B...  f> 

I   Kobe  B.  Norihem  Pac.  R.  Co 6 

Koehler,  Alebison,  etc.,  R.  Co.  e. .   8 

;  Kouus.  Baldwin  B -.  .,.8 

I    Knieger  e.  LouiKville,  etc.,  R.  Co.  3 
!  Lake  Shore  &  SI.   S.   B.  Co.  b. 

Brown,  Admx 

I   Lake  Shore,  etc.-  R.  Co,.  Coops  c.  9 
Ijike  Shore,  eie ,  R.  Co,  e,  PIncliin.  4 
Leavenworth,  etc.  R.fin,  B,  Forbes,  6 
i   Lenawee  Co.  Savings  Bank  r.  City 

of  Adrian  finl 4 

I   Llndsley  r,  Chicago,  Milwaukee  & 

I     St.  Paul  R.  Co I 

;  Little  liock  &  Fort  Smith  R.  Co.  e. 

I      Eubanks 1 

Liverpool,  L  &  O  In*.  Co.  ».     ...  4 
!   I,.ong,  Admr,,  Cincinnati,  Indiao- 

ap<rfis.  etc,  R.  Co-  r. 1 

I 'Louisville  &   Nashville    R.    Co., 

Riiwitzky  »  1 

'  Louisville  &  Nasbvillc  R.  Co.  e. 

Oower I 

■  Louisville  &  NaahviUe  R.,  Hender- 


185 


Louisville, 


B,    Co.,    Allen 


Louisville,  etc,,  II,  Co.,  Knieger  v.  '■ 
Louisville,    etc,    H.    Co.,    Bitt's 

Louisville,  etc,  B,  Co.  e.  Colman,  ■ 

268  Loiilsvilic.'eic,,  R.  Co.B.'PhilVii)^.'  '■ 

80f!  Maine  Cent.  B.  Co.,  Wormi-ll  e. . .   1 

.■Wl  Mnlov.  East  Tenn.,  ete.,  R   Co,  e..  1 

116  Marviuill  r  Boston  &  A.  B  Co 


iiz^dbvCoOglc 


McGee  r.  Missouri  Padflc  R.  Co.. . 
Mi-mpbis&C.  R.  Co.  o.  fieuaoQ...  1 
Mcrcbants'   Despatch   TraiiBp.  Co. 

p.  Merriam 

MFrriam,     Mercbants'     Despatch 

Transp.  Co.  v 

Michigaa  Cent.  R.  Co..  Bacon  e. ..  8 
Hinneapolis,  L.  &U.  B., Grimes f>.  1: 
Missouri  Pac.  R.  Co.  «t  at.  v.  Duo- 
Missouri  Pac.  R.  Co.,  Hulino 2 

Missouri  Pnciflc  B  Co..  McGee  n. . 
MUsouri  Pac.  R.  Co.  e.  Morrow. ..  6 
Mi.s.<iouTi  Pac.  R.  Co.  e.  Texas  & 

Pacific  R.  Co 

Slobile.  etc.,  11  Co.  v.  Stroud 4 

3Ionday,  St.  Louis,  etc.,  R.  Co.  v..  4 
Moore  v.  Burllagton,  etc.,  R.  Co..  G 
Morrow,  Missouri  Pac.  R.  Co.  e. ,.  0 
New  York  Cent.,    etc.,    H.    Co., 

Avery  r S 

New  York,  etc.,  R.  Co.,  Gaffney  c.  3 
Norfolk  &  Wcslcra  R  r.  Emniert  1 
Norfolk  <&  W.  R.  Co.  n.  Collrell, ..  2 

Nortb  London  R.  Co.,  Cutler  c 1 

Northern  Pac.  H.  Co.,  Kolie  o i 

Korthern  Pac.  R  Co.,  Palmer  e...  E 
Piicihc  Railway  Commission,  Inre  t 
Palmer  f.  CliiCHgo,  etc.,  H.  Co. . ..  S 
Palmer  b.  Norlhcm  Pac.  R.  Co. .  -  f 
Pation  V  Western,  etc.,  R,  Co  ...  S 

PennsylvaDia  Co.  D.  DuDtap   S 

PennsylTaoia    Co.    «.    Whiicomb, 

Penusylrania  R.  Co. ,  Hawk  c i 

People  ta  rel.  Seip,  Chicago,  etc., 

R.  Co.  t. 4 

Peterson  t.  Chicago,  etc..  R.  Co. . .  S 
Phillips,  Lake  Shore,  et«.,  B.  Co. «.  A 
Pill8liuiT,Chicago  &  Alton  R.Co.  e. 
Plncbin,  Lake  Shore,  etc.,  R.  Co.  n.  4 
Portland  d.  Union  Mut.  Life  Ins. 

Co 4 

Raben  t.  Central  Iowa  R.  Co 

Rawitzky  d.  Loulavllle  &  Nashville 

R.  Co 1 

Reed  t.  BurliDgton.  Cedar  Rapids, 

etc.,  R,  Co 1 

Riti  9   Admx.  e.    Louisville,' etc.. 

R.Co 2 

Roddy,  Tennessee,  eU;.,  R,  Co.  o..  8 
San  Franciwo  «   Liverpool,  L.  A 

G  Ins.  Co 4 

Sedgwick  e.  Illinois  Cent  R.  Co. .  & 
Sherman  r.  Delaware,  etc.,  H.  Co.. 
Simnvi,  Ai1nir.,r.  SouttiCarolInaB.  1! 

Smith  A  Wabash,  etc.,  R.  Co B 

South    Carolina  R.  Co..    8imms, 

Admr.,« l! 


Southern  Ean.  R.  Co.,  Warren  e. .  ] 
Slaal  e.  Grand  Street  &  Newtown 

aco ! 

St.  Louis,  etc.,  R.  Co.,  Siober  c. ..  21 
St.  Louis,  etc.,  R.  Co  e.  Monday..  4: 
St.  Louis,  etc.,  R.  Co.  e.  Williams.  K 
Bt.  Paul,  etc.,  R.  Co.,  County  of 

Todde 41 

State,  Bannon  t> 5J 

Stateo  Divine 5' 

Stevens,  Farjto  v 41 

Stoher  c.  St.  Louis,  etc.,  R.  Co 2; 

Slookey.  Illinois,  etc.,  B.  &  Coal 

Co.r 4' 

Strand  V.  Chicago  &  ^eat  Michigan 

B.  Co ! 

Stroud,  Mobile,  etc  ,  R.  Co.  v 4' 

Tabler  e.  Hanuibal  &  St.  Joocph  R,  II 
Tennessee,  etc.,  R  Co.  n.  Roddy..  8 
Tentts  &  New  Orleans  R.  o.  Berry  U 
Texas  &  Pacific  R.  Co.,  Missouri 

Pac.  B.  Co.  B ' 

Thatcher  t    Delaware  &  Hudson 

Canal  Co.  etal 6: 

Timins  c.  C'hicago,  etc.,  B.  Co  ...  5 

Toner  «.  Chicago,  etc.,  H.  Co 8 

Trou8tinec(a/.,Illinoi8Cent.RCo.p.    1 

Troy,  etc..  R.  Co.,  Chrystal  e 4 

Tuttle  e    Detroit,  Grand    Haven, 

etc.,  B.  Co 2 

Union   Mut.  Life  Ins.  Co.,   Port- 

latidc 4 

Vermont  Stale  Grange  v.  Boston  & 

Lowell  R.  Co.  ^/fl?. 6 

Wfthash,(:tc,,  R,  Co..  Central  Trast 

Co.  at  New  York  o Ii 

Wabash,  etc.,  R,  Co.,  Smith  b B 

Walmsh,  etc.,  R.  Co.  c.  Hawk, .. .  3 
Wabash,  St.  Louis  &  Pacilic  R.  Co. 

c.  Farver i; 

Warren  r.  Southern  Enu.  R  Co. . . 
Washington&G.R.Co.,CarpenteriJ  II 
We]ls,ChesnpeBke,0,  &  8.  R.  Co.  b.  1, 
West  Michigan  R.  Co.,  Siiond  b...  i 
Western,  etc.,  R.  Co.,  Pallon  p.  . .  3i 
WhitcomI),  Admr.,    Pennsylvania 

Co.  * ]: 

Williams,  St.  Louis,  el^.,  R.  Co.  b.  51 
Wilson,  Admr.,  e.  Winona,  etc., 

R.Co 3 

Wiodbam.  City  of  ArkadelphiaB..  8- 
Winona  &  St.  Peter  R.  Co.,  Frank- 
lin, Admr,.  0 21 

Winona,     etc.,    R.    Co.,    Wilson, 

Admr,  e 2; 

Woodward,  Port  Wayne,  etc.,  R. 

Co.B S^ 

Wormellc.  Maine  Cent.  B.  Co., ..  21 


^d  by  Google 


lib,  Google 


MiBBOTiBi  Pactpio  R.  Co.,  Appt. 
(Adoanee  Cam,  Miuouri.     June  6,  1S8T.) 

Where  plaintiff  was  directed  by  the  agent  of  defeodant,  whose  dntj  it  was 
to  direct  paMeagers  what  traine  they  should  enter,  to  take  passage  on  & 
freight  train,  he  oecame,  upon  bis  entrance,  a  pusenger,  notwithstanding, 
under  the  rules  ol  the  companj,  which  were  unknown  to  the  plaintiff,  pas- 
sengers were  not  permitted  to  ride  upon  that  train.  Evidence  that  it  waa 
the  custom  and  usage  for  defendant's  freight  trains  to  carry  passengers  was 
admissible. 

Where  the  plaintiff  had  been  received  by  the  defendant  as  a  passenger  on 
its  freight  train,  the  same  degree  of  care  was  due  to  him  that  defendant 
owed  to  passengers  on  its  regular  trains,  except  that,  in  taking  the  freight 
train,  the  plaintiff  accepted  and  travelled  on  it,  acquiescing  in  the  usual  in- 
cidents and  conduct  of  a  freight  train  managed  by  prudent  and  competent 

Where  the  defendant  stopped  its  train  at  an  unusual  and  unsafe  place,  be- 
fore reaching  which  the  station  was  announced,  on  a  dark  night  when  paa- 
aengera  in  the  caboose  could  not  see  the  danger,  and  the  conductor,  on  leaT' 
ing  the  caboose  with  the  light,  might  hare  seen  it,  his  failure  to  warn  the 
pusengers  of  the  dangerous  character  of  the  surroundings  was  gross  negli- 
gence. The  slowicB;  up  of  the  train  as  it  approached  the  station,  the  sound- 
ing of  the  whistle,  the  announcement  of  the  station,  stopping  the  train,  the 
act  of  the  conductor  and  brakeman  in  leaving  the  caboose  with  the  light, 
and  the  detachment  of  the  engine  to  take  water,  must  be  construed  as  a  di- 
rection to  the  passengers  to  alii^ht  then  and  there,  and  there  was  no  negli- 
gence in  the  act  of  the  plaintiff  in  acting  on  such  direction. 

The  admission  of  evidence  was  proper  to  prove  the  usual  stopping-place 
of  freight  trains  at  the  station  where  an  injury  occurred,  charged  to  have 
been  occasioned  by  the  stopping  of  the  train  at  an  unusual  and  dangerous 
place. 

Appeal  from  a.  jadgment  of  the  Monroe  circnit  court  against 
tbe  defendant  upon  a  demnrrer  to  tlie  evidence  in  an  action  for 
injnrj  resulting  from  negligence.     Affirmed. 

Tlie  facts  are  stated  in  tlie  opinion. 

Tho8.  J,  Portia  with  Messrs.  Adams  c6  Bowles  for  appellant 

J.  H.  Rod^  and  A.  H.  WaUer  for  respondent. 

NoETON,  Cli.  J. — This  is  an  actioD  to  recover  damagea  for  in- 
jarics  enstained  by  plaintiff,  a  passenger  on   one  of  defendant's 
SI  A.  &  E.  R.  CsH.— 1 


^d  by  Google 


3  m'oEE  v.  MISSOURI   PACIFIC   E.  CO. 

freight  trains,  in  conecqnenee  of  defendant's  negligence,  and  the 
case  is  before  ns  on  defendant's  appeal  from  a  judgment  obtained 
by  plaintiff  on  the  trial,  and  we  are  asked  to  reverso  the  jndgment 
because  of  alleged  error  in  tlie  circuit  conrt  in  refusing  to  give  an 
instruction  for  defendant  in  the  natnre  of  a  demniTer  to  the  evi- 
dence, and  in  giving  iinptoper  iiistru'^tionB  for  plaintiff. 

The  evidence  on  the  part  ofjilaintiff  tends  to  establish  the  fol- 
lowinji^  facts,  viz.  :•  that  plaintiff  puix^hased  from  defendant's  ticket 
agent  at  Paris,  Missouri,  a  ronnd-trip  ticket  for  himself  and  wife 
nijim.  frona  Paris  to  Moberly  and  return ;  that,  having  gone 

to  Moberlj  and  wisiiing  to  return  to  Paris,  he  was  directed  by 
defendant's  ticket  agent  at  Moberly,  with  tiie  acquiescence  of  the 
conductor,  to  take  passage  on  a  freight  train  slanding  on  defend- 
ant's track  some  distance  from  the  depot;  that,  the  caboose  having 
been  pointed  out,  plaintiff  and  his  wife,  a  Miss  Carrer,  and  one 
Mason  entered  the  caboose  attached  to  said  train;  that  the  con- 
ductor of  said  train  took  ap  the  tickets  from  plaintiff  for  himself 
and  wife,  and  collected  from  him  one  fare  in  cash  for  Miss  CaiTer ; 
tliat  it  was  dark  when  the  train  left  Moberly,  and  very  dark  when 
the  train  arrived  at  Paris,  about  9.30  o'clock  at  night;  so  much  so, 
according  to  the  evidence  of  one  of  the  witiiesses,  that  you  could 
not  see  yonr  band  before  yon;  that  the  train,  on  approaching 
Paris,  was  slowed  np  and  the  whistle  sounded ;  that  the  conductor 
and  hind  brakeman  came  down  from  the  lookout  on  the  caboose, 
and  the  brakeman,  in  the  hearing  of  all  the  passengers,  announced 
Paris,  and  with  the  conductor  went  out  of  the  caboose,  taking  the 
light  wi[h  them,  the  train  in  the  meantime  coining  to  a  stop,  and 
the  condnctor  and  brakeman  proceeding  down  tiie  track  to  the 
depot,  where  the  conductor  registered  his  train ;  during  which  time 
sod  after  the  stop  the  engine  was  detached  from  the  train  for  the 
purpose  of  taking  water  at  the  tank.  The  evidence  tended  further 
to  snow  that  the  train,  instead  of  boifig  stopped  at  what  was  known 
as  Fox  Crossing,  the  usual  stopping<piace  for  north-bound  freight 
trains,  and  which  was  known  to  plaintiff  to  be  a  safe  place  for 
aligliting  from  trains,  was  stopped  some  distance  before  reaching 
eaid  crossing,  with  the  caboose  standing  on  the  east  end  of  a  high 
trestle,  put  in  a  deep  ravine,  where  heavy  timbers  had  been  dropped 
in  against  piling,  making  a  sqnare  wall  30  or  40  feet  long,  and  9 
feet  high,  tlie  bank  being  steep.  From  the  rail  to  the  edge  of  the  em- 
bankment was  about  5  feet,  and  the  steps  of  tiie  cahoiise  extended 
about  2  feet  from  the  rail,  so  that  a  person  in  stepping  down 
from  the  caboose  would  step  within  a  foot  of  tlie  edge  of  the  em- 
bankment. The  evidence  tends  further  to  showtliat  after  the 
train  stopped,  and  after  the  action  of  the  condnctor  and  brakeman 
in  leaving  the  caboose  and  going  down  to  the  de|iot,  and  the  de- 
tacliment  of  tbe  engine  from  ihe  train,  tliat  plaintiff  and  the  other 
passengers  alighted  from  the  caboose,  and  that  plaintiff  having 


^d  by  Google 


PASSRNGER3   ON   TEEIGHT  TRAIN — NEGLIGENCE.  3 

sliglited,  in  assisting  one  of  the  lady  passengers  to  alight,  fell  over 
tlie  embankiiieut,  receiving  the  injury  for  which  he  sues,  consists 
ing  of  a  broken  leg.  Tiie  evidence,  while  it  also  tended  to  eliow 
that  plaintiff  had  long  been  a  resident  of  Paris,  was  acquainted 
and  Knew  of  the  embankment  by  having  passed  over  and  seen  it 
previous  to  the  ^cideiit,  did  not  tend  to  show  tliac  he  knew  the 
caboose  liad  stopped  there  wiien  he  got  off.  Tiie  evidence  aho 
tended  to  show  that  the  freight  train  on  whicli  plaintiff  took  pnssage 
was  an  extra,  which,  under  the  rules  of  the  company,  was  not  per- 
mitted to  carry  passengers,  but  did  not  tend  to  show  plaintiff  had 
knowledge  thereof. 

Tiie  above  facts  which  the  evidence  tended  to  establish  make 
ont  a  case  which  it  was  proper  to  snbniit  to  the  jury. 

Notwitlistanding,  under  the  rules  of  the  company  (which  were 
unknown  to  plaintiff),  pasaengei-s  were  not  permitted  to  ride  on 
the  train  in  qnestion,  yet  plaintiff  when  directed  by  the  puusan  q. 
Agents  of  defendant, — whose  duty  it  was  to  dii-ect  pas-  ""ohts. 
Eengers  what  trains  they  should  entei' — to  take  passage  on  this  train, 
became  a  passenger,  Jilai-shall  v.  St.  Louis,  K.  C.  tfe  N,  R.  Co.,  78 
Mo.  616 ;  Logan  v.  Hannibal  &  St.  J.  R.  Co.,  TT  Mo.  668 ;  Hicks 
V.  Hannibal  &  St.  J.  R.  Co.,  68  Mo.  838;  2  Wood,  R.  R  p.  1413, 
S  355. 

At  pages  1044  and  1045  of  the  anthor  last  cited  it  is  said :  "  A 
person  who,  without  knowing  that  it  is  against  the  rales  of  the  com- 
pany for  passengers  to  ride  on  a  freight  train,  if  he  pays  his  fare 
and  is  received  as  a  passenger  by  the  conductor,  may  be  entitled  to 
the  rights  of  a  passenger;  and  such  also  may  be  the  cjise  where 
notwithstanding  the  rnles,  it  is  shown  that  passengers  have  been 
Iiabitually  carried  upon  such  trains;  but  where  a  person,  knowing 
the  rules,  gets  npou  a  freight  train,  even  with  the  assent  of  the 
•conductor,  and  pays  no  fare,  he  cannot  he  regarded  as  a  passen- 
ger," In  the  ease  before  us  there  was  abundant  evidence  showing 
that  passengers  were  habitually  carried  upon  defendant's  freight 
trains. 

Plaintiff  having  been  received  by  d_efendant  as  a  passenger  on 
its  freight  train,  the  same  degree  of  care  was  due  to  liim  that  de- 
fendant owed  to  passengers  on  its  regular  trains,  except  that  plain- 
tiff, in  taking  the  freight  train,  accepted  and  travelled  on  it  acqui- 
escing in  the  usual  incidents  and  conduct  of  a  freiglit  train  managed 
by  prudent  and  competent  men.  Indianapolis  &  St.  L.  E.  Co.  v. 
Horst.  93  U.  S.  291. 

In  Thompson  on  Carriers  of  Passengers,  p.  234,  §  20,  it  is  said : 
The  company  is  held  to  as  strict  an  accountability  for  the  negli- 
gence of  its  employees  in  the  management  of  a  train  co„urTii  «- 
with  a  caboose  attaclied,  in  which  passengtrs  are  seated,  "i^i^n^"- 
AS  the  law  imposes  in  the  transportation  of  passengers  on   trains 


^d  by  Google 


4  h'gee  v.  hissuubi  pacific  B.  CO. 

especially  provided  for  that  pnrpose.  It  cannot,  however,  be  ex- 
pected tliat  a  company  will  provide  its  freight  trains  with  all  the 
conveniences  and  safeguards  against  danger  which  may  properly 
be  demanded  in  the  construction  and  operation  of  cars  aeeigned 
solely  for  the  transportation  of  pasBerigere;  and  the  ordinary  rule 
tliat  the  company  must  provide  safe  and  convenient  means  of  get- 
ting on  and  off  trains  obvionsly  has  but  slight  application  to  the 
case  of  a  passenger  on  a  freight  train." 

Tlie  defendiu'it  did  not  atop  its  train  at  the  nsoal  stopping-place, 
where  it  was  safe  for  passengers  to  aliglit,  but,  on  the  contrary,  at 
an  unusual  place,  where  it  was  unsafe  and  dangerous;  before 
reaching  which,  the  station  "Paris"  was  announced,  thereby  in- 
viting plaintiff, — nothing  to  the  contrary  appearing, — to  get  off 
when  and  where  it  stopped.  These  facts,  in  .connection  with  tho 
further  facts  that  the  night  was  very  dark,  and  that  passengers 
in  the  caboose  could  not  for  that  reason  see  the  danger,  and  that 
the  coiidnctor,  on  leaving  the  caboose  with  the  light,  could  or 
might  have  seen  it,  made  his  failure  to  warn  and  inform  the  pas- 
sengers of  tiie  dangerous  character  of  tiie  surroundings  gross  negli- 
gence. But  it  is  argued  tbat  plaintiff  was  also  negligent  in  leaving 
tiie  caboose  under  the  eircumstaitces,  and  tliat  the  demurrer  to  the 
evidence  ought  to  have  been  sustained  for  that  reason.  We  are  of 
a  different  opinion.  The  slowing  up  of  the  train,  as  it  approached 
NnuQEiicKOF  Paris,  the  soniiding  of  tlie  whistle,  tlie  announcement 
FUBEXDu.  ^y  (.[jg  ijrakeman  of  the  station,  stopping  the  train,  the 
act  of  the  conductor  and  brakeman  leaving  the  caboose  with  the 
light,  the'detacliraent  of  the  engine  to  lake  water,  can  be  construed 
in  no  other  light  than  as  a  direction  to  tlie  passengei'S  to  alight 
then  and  there,  and  plaintiff,  in  the  absence  of  anytliing  appearing 
to  the  contrary,  had  a  right  to  conclude  that  it  would  be 
safe  for  him  to  alight  at  that  place,  Leslie  v.  Wabash,  St, 
L.  <fe  P.  R.  Co.,  88  Mo.  51 ;  Terre  Haute  &  I.  R  Co.  v.  Buck, 
96  Ind.  347;  Beach,  Cont.  Ncg.  pp.  173,  71,  §  23,  where  it  is 
said:  "When  the  defendant,  bv  his  own  negligent  or  wrongf nl 
acts  or  omissions,  throws  plaintift  ofi  his  guard,  or  when  plaintiff 
acts,  in  a  given  instance,  upon  a  reasonable  supposition  of  safety  in- 
duced by  the  defendant,  when  there  is,  in  reality,  danger  to  wliicb 
plaintiff  is  exposing  himself,  in  a  way  and  to  an  extent  which  but 
for  the  defendant's  inducement  miglit  be  impnted  to  the  plaintiff 
as  negligence  sufficient  to  prevent  a  recovery,  such  conduct  on  the 
part  of  plaintiff,  so  induced,  will  not  constitute  contributory  negli- 
gence in  law,  and  the  defendant  will  not  be  heard  to  say  that  the 
plaintiff's  conduct,  under  snch  circumstances,  is  negligent,  for  the 
purpose  of  a  defense  to  the  action.  .  ,  ,  If  plaintiff  exercises  ordi- 
nary care  and  prndence,  ander  the  circumstances,  in  relying  upon 
defendant's  inducement,  or  in  obeying  defendant's  orders  and 
directions,  he  may  have  his  action." 


^d  by  Google 


PASSENGERS   ON  FREIGHT  TRAIN — NEGLIGENCE.  5 

It  is  next  insisted  that  tlie  second  instruction  given  for  plaintiff 
is  erroneuns,  Uecanse  it  is  too  general  in  telling  tlie  jnry  tliat  if 
plaintiff  exercised  "  doe  eai-e,"  etc.,  and  did  not  specifically  set  ont 
all  tlie  ci re n instances  tending  to  show  contribntoi';]'  negligence.    - 
The  instrnctiun  is  as  follows: 

"  3.  If  tlie  jury  find  from  the  evidence  that  plaintiff  was  a  paa- 
sengoi-  on  defendiint's  said  train,  and  that  it  was  dark  when  said 
train  arrived  at  Paris;  and  that  defendant's  agents  and  servants 
stopped  said  train  so  tliat  the  caboose  stood  upon  a  high  einbaiik- 
meiit,  the  side  of  which  was  perpendicular;  and  that  said  place 
was  a  dangerous  place  for  passengers  to  alight  from  said  triiiii ; 
and  that  said  place  was  not  the  usual  and  ordinary  Btopping-place 
for  freight  trains  at  said  station  ;  and  that  the  brakenian  of  said 
train  announced  the  station,  and  that  plaintiff  believing  that  said 
train  was  at  its  nsual  stopping-place,  and  that  no  other  opportunity 
wonld  be  offered  him  to  alight  from  said  train  at  said  stutiun  ;  and 
further  find  that  defendant^  said  agents  and  servants  neglected  to 
warn  plaintiff  of  th^  dangerous  character  of  the  place,  or  that  he 
mnst  not  attempt  to  alight  at  said  place;  and  that  they  carried 
away  their  lantenia  and  failed  to  furnish  plaintiff  any  light  by 
which  to  alight  from  said  train, — they  will  find  defendant  gnilty 
■of  negligence  toward  plaintiff ;  and  if  the  jury  so  find  the  defend- 
ant guilty  of  negligence  toward  plaintiff,  and  that  as  the  direct 
and  immediate  consequence  of  such  negligence  on  defendant's  part, 
plaintiff,  while  exercising  dne  care  on liis  part,  alighted  from  suid 
train  and  fell  down  the  embankment  at  said  dangerous  place  and 
sustained  the  injuries  complained  of  in  plaintiff's  petition,  tliey  will 
find  a  verdict  for  plaintiff." 

We  have  already  shown  that  it  was  not  n^Iigent  in  plaintiff  in 
alighting  from  the  tmin  at  the  time  he  did ;  and  inasmucli  as  there 
is  nothing  in  the  case  befoi-e  ns  to  show  that  plaintiff,  in  leaving 
the  caboose,  was  not  exercising  due  care,  the  error  complained  of, 
if  it  may  be  so  called,  was  immaterial ;  especially  so  in  view  of  the 
'evidence  which  would  have  justified  the  court  in  adding  after  the 
■words  "  due  care,"  "  and  there  is  no  evidence  tending  to  show  that 
plaintiff  was  not  exercising  due  cai-e." 

It  is  also  insisted  that  the  court  erred  in  admitting  evidence  to 
ehow  that  it  was  the  custom  and  usage  for  defendant's  freight 
trains  to  carry  passengers.  The  fact  of  such  custom  was  testified 
ixi  by  a  number  of  witnesses,  and  that  it  was  notorious;  and  the 
jeception  of  tlie  evidence  was  warranted  by  the  following  authori- 
iies:  Wood,  Mast.  &  Serv.  p.  791,  §  4Q1;  Lawson,  Customs,  pp. 
41, 42.  ..." 

Nor  was  error  committed  in  the  reception  of  evidence  to  prove 
the  nsual  stopping-place  of  freight  trains  at  the  station  in  Paris, 
Tibby  V.  Missouri  Pac.  R.  Co.,  &2  Mo.  299  ;  84  N.  T.  241 ;  49 
Uich.  372. 


^d  by  Google 


6  M'GEE  V.  MISSOUBI  PACIFIC  E.  CO. 

Tlie  caoBQ  having  been  fairly  tried,  tlie  judgment  is  affirmei], 
with  the  coDcarrence  of  the  other  jndgee. 

QUBtTtOHS  TO  THE  BDITOB. 

Febbdast  11,  1888. 

Dkab  Sik:  Tour  letter  of  January  25th,  received.  I  tbank  jou  sincerely 
for  your  kind  offer.  .   .   .   The  R.  Co.  biu  a  positive  rule  prohibiting 

paaseD^rs  from  riding  on  its  freight  trains,  and  discharges  any  employee 
who  allows  it.  A  man  with  lull  knowledge  of  this  rule  applied  to  the  con- 
ductor of  a  freight,  and  was  by  him,  be  being  his  cousin,  permitted  to  ride 
on  it,  A.  collision  occurred  and  lie  was  seriously  hurt,  and  is  now  suing  for 
(10.000. 

Eaton  B.  The  D.,  L.  &  W.  R.  Co.,  (S7  N.  T.  383;  and  Waterbury  o.  N.  T. 
C.  &  H.  R.  Co.,  17  Fed.  Rep.  671,  are  cases  bearing  on  the  point  I  am  Mt- 
iefied  he  was  an  intruder  and  not  entitled  to  recover ;  but  it  is  a  case  of  much 
interest  with  the  profegaion  as  it  iovolveB  the  liability  of  railroads  for  a  char- 
acter of  injuries  that  is  becoming  very  common  in  the  Gouth  where  commer- 
cial travelers  (drummera)  to  reach  atatiooa  insist  and  petsiat  in  violating 
the  rule. 

Tbanking  you  again  for  your  kind  offer,  I  am,  with  high  regard, 

Yours  truly,  

In  the  following  note  will  be  found  a  collection  of  cases  which  bear  moro 
or  leaa  directly  upon  the  point  mentioned  in  the  above  letter,  and  it  is  hoped 
they  will  prove  not  without  general  interest  and  value  (Ed.). 

Pationgerg  on  Freight  Tralni. — Railroad  companies  may,  if  they  choose, 
carry  paadengera  on  their  freight  trains,  and  freight  on  their  passenger  traiqs, 
but  are  not  obliged  to  do  so.  Chicago,  etc.,  R.  Co.  e.  Randolph,  S3  III.  010; 
Houston,  etc.,  R.  Co.  e.  Moore,  49  Texas,  81. 

Hegjilationi  at  to  TiehtU. — Reasonable  regulatiouB,  requiring  tickets  of  a 
particular  description  to  be  procured  before  taking  passage  on  freight  traina 
will  be  upheld.  Chicago,  etc.,  K.  Co.  c,  Flagg,  48  III.  864;  llliDolB.  etc.,  R. 
Co.  D.  Johrson,  67  111.  813;  St.  Louis,  etc.,  R.  Co.  «.  Myrtle,  Gl  lod.  066; 
FHulkner  e.  Ohio,  etc.,  R.  Co.,  6B  Ind.  869;  Lake  Shore,  etc.,  R.  Co.  v. 
Greenwood.  79  Pa.  St.  378. 

Aeeommodatu>nt.~~&  paasenger  who  takea  a  freight  train  takes  it  with  tho 
increased  risks  and  diminution  of  comfort  incident  thereto.  Chicago,  etc., 
R.  Co.  o.  Hszziird,  36  111.  373;  Chicago,  etc.,  R  Co.  o.  Fay,  16  lU.  068: 
Ohio,  etc.,  R.  Co.  n.  Dickerson,  08  Ind.  317. 

Freight  trains  cannot  be  expected  to  be  provided  with  all  the  cooven- 
iencea  of  passenger  trains,  such  as  air-brakes,  bell  cord,  and  a  brakeman 
upon  every  car.  Hazard  e.  Chicago,  etc.,  R.  Co.,  28  111.  373,  and  1  BisB. 
(C.  C.)  S08-  Indianapolis,  etc.,  It.  Co.  e.  Beaver,  41  Ind.  im-,  Indiana pol is, 
etc..  R.  Co. «..  Horst,  93  W.  8.  2B1,  297;  Mincli  v.  Concord  R.  Co.,  29  N.  H. 
9,  43. 

In  Chicago,  etc.,  R.  Co.  c.  Hazard,  26  HI.  373,  the  plaintiff  was  standing 
upon  the  rear  platform  of  the  caboose  with  the  intention  of  getting  off  while 
the  train  was  moving  slowly,  when  the  speed  of  the  train  was  increased,  the 
caboose  jerked  violently,  and  plaintiff  thrown  over  the  end  of  the  cahooae 
and  injured  on  account  of  a  lack  of  chain  or  bar  in  the  centre  of  the  rear 
platform.  Meld,  that  the  jerking  of  the  train  and  lack  of  a  chain-guard  upon 
the  rear  of  the  caboose  were  not  negligence. 

Degree  of  Care  required  of  Pataengere. — The  dangers  naturally  incident  t* 
travel  by  rail  are  greater  on  freight  than  on  passenger  trains,  and  call  for  a 
correspondingly  higher  degree  of  care  on  the  pArt  of  passengers.  Harris  v. 
Hannibal,  etc.,  R.  Co.,  87  Am.  &  Bng.  B.  R.  Cas.  21fl. 


^d  by  Google 


PASSENGEE8  ON   FBEIGHT  TRAIN^NEGLIGENCE.  7 

Btgneof  Oare  required  oft'h»  Company. — But  the  reaponsibtlity  of  ft  rail- 
row)  company  for  the  safetj  of  its  paeseng^ra  does  not  depend  on  the  Und 
of  cars  in  which  the;  are  carried,  or  on  the  fact  of  payment  of  fara  by  the 
MMCDger.  Ohio,  etc.,  R.  v.  Mahliog,  80  111.  S;  Phik.,  etc.,  R.  «.  Derby,  U 
How.  (U.  8.)  468;  Waterbury  e.  N.  Y.,  etc.,  R.,  17  Fed.  Rep.  671. 

Free  Stdert  on  Vreight  TVairu. — A  person  riding  on  a  freight  traina  on  which 

rsengere  are  allowed  to  be  carried,  ib  to  be  regarded  as  apaaaenger,  although 
may  hare  boarded  the  tralD  without  the  knowledge  or  permiaaion  of  the 
conductor  and  paid  no  fore,  if  the  conductor,  after  becoming  aware  of  bis 
presence,  permits  him  to  remain.  Sherman  o.  The  Hannibal,  etc,  R,,  73 
Mo.  62. 

Where  the  company  accept*  the  fare  of  a  person  and  allowa  him  to  ride 
upon  a  freight  train  he  is  a  pasaenger,  and  ia  entitled  to  the  same  degree  of 
care  and  protection  as  if  carried  on  a  passenger  train.  IndianapoHa  &  St. 
Louis  R.  o.  Horst,  98  W.  B.  391 ;  Minch  e.  C.  R.,  29  N.  H.  9;  I.  R.  o.  Beaver, 
41  Md.493;  C.&Q.  R.e.  Pay,  16  III.  668;  Bdgerton  tt.  N.  T.  &  H.  R.  R.,  89 
N.  T.  337;  International,  etc.,  R.  Co.  c.  Irvine.  28  Am.  &  Eng.  R.  R.  Cas. 
618;  Dunn  e.  Grand  Trunk  R.,  58  He.  187;  Seoond  e.  St.  Paul  H.  &  M.  R. 
Co..  18  Fed.  Rep.  221. 

Though  a  train  is  not  operated  for  the  purpose  of  carrying  paasengera,  yet 
if  those  in  control  thereof  aaaunie  to  carry  a  passeoger,  and  he  gets  on  th« 
train  by  their  inTitatioo  and  direction,  they  are  bound  to  operate  the  train 
in  such  a  manner  aa  due  care  and  attention  would  suggest  for  the  safety  of 
the  pasBenger.  L.  B.  &  H.  S.  R.  f.  Brown  (11!.),  14  N.  E.  Rep.  197;  aee  also 
Int.  &  O.  H".  R.  c.  Cock.  (Teic.)  B  S.  W.  Rep.  835. 

PaueJigen  upon  Freight  Train*  by  PerTiiiiiion  of  (A»  Ctmductar  hvt  Gontrary 
to  lAe  RuUm. — When  the  rules  of  the  company  forbid  the  carrying  of  passen- 
gers on  freight  trains,  bat  the  conductor  relaxes  the  rules  and  permits  pas- 
sengers to  be  carried,  the  better  opinion  seems  to  be  that  the  company  will  be 
TQsponsible  for  want  of  care  in  their  transportation.  Dunn  e.  Orana  Trunk 
B.,  88  Me.  187;  Creed  n.  Pa.  R.  Co.,  86  Pa.  St.  IBB;  Lackawanna,  etc..  R. 
Co.  e.  Chenewith,  42  Pa.  Bt.  882;  Lucas  v.  Milwaukee,  etc.,  R.  Co.,  88  Wis. 
41;  Wilton  a.  Middlesex  R.  Co.,  107  Mass.  108,  12.'!  Mass.  180;  Jacobus  e, 
St.  Paul,  etc.,  R.  Co.,  20  Minn.  125;  see  also,  Jenkins  e.  Chicago,  etc.,  R. 
Co.,  41  Wis.  112. 

In  Dunn  e.  Grand  Trunk  R..  58  Me.  187,  the  plaintifl  entered  the  aaloon- 
car  attached  to  the  defendant's  freight  train,  and  when  the  train  atarted, 
without  being  requested  or  directed  to  leave,  remained  there  as  a  passenger, 
contrary  to  the  rules  of  the  company,  but  with  the  knowledge  of  the  con- 
ductor who  received  from  him  tbe  usual  fare.  The  saloon-car  was  thrown  off 
the  track  by  a  broken  rail  and  plaintiff  injured.  Beld^  that  the  company  was 
liable.  Appleton,  C  J.,  said ;  "  The  regulations  of  the  defendant  corpora- 
tion are  binding  on  its  servants.  Passengers  are  not  presumed  to  know  them. 
Their  knowledge  must  be  affirmatively  proved.  If  the  servants  of  the  cor-  ' 
poration,  who  are  bound  to  know  its  regulations,  neglect  or  violate  them, 
the  principal  should  bear  the  loss  or  injury  arising  from  such  neglect  or  vio- 
lation rather  than  strangers.  .  .  .  Tbe  plaintiff  was  not  entitled  by  law  to 
be  carried  on  the  freight  train  contrary  to  the  regulations  of  the  defendant 
company.  They  might  have  refused  to  carry  him,  and  have  used  force  to 
remove  him  from  tbe  train.  Not  doing  this,  nor  even  requesting  him  to 
leave,  but  suffering  him  to  remain,  and  receiving  from  him  the  ordinary  fare, 
they  must  be  held  justly  responsible  for  negligence  or  want  of  care  in  his 
transportation. 

Where  the  conductor  permits  a  passenger  to  ride  in  a  caboose  attached  to 
the  train,  although  contrary  to  tbe  rules  of  the  company,  and  an  accident 
occurs  through  tbe  company's  negligence,  whereby  the  passenger  is  injured, 
be  may  recover  dam^ea.    Creed  v.  Pa.  R.  C^o..  86  Pa.  St.  139. 


^d  by  Google 


8  M'GEB  v.  MISSOUKI   PACIPIO   B.  CO. 

If  K  passenger  bj  a  freight  tralTi  has  ample  time  to  get  on  the  caboose,  be 
IK  not  justified  in  getting  into  a  freight  car.  Plager  v.  BurliDgton,  etc.,  R., 
13  Am.  &  Eng.  R.  R.  Cas.  112. 

1q  Waterbury  «.  N.  T.  C.  &  H.  R.  R.  (C.  C),  17  Fed.  Rep.  671,  it  w«« 
held  that  nhere  a  drover  riding  on  an  eugiue,  who  has  sued  for  injuries  aus- 
tained  though  the  Degligence  of  the  defendant  company,  claims  that  he  was 
riding  on  the  engiae  by  the  consent  of  the  engineer  to  look  after  hia  cattle, 
as  was  customary,  and  the  defendant  claims  that  it  was  contrary  to  orders  for 
anybody  to  ride  on  an  engine,  it  is  a  question  of  fact  for  the  jury  whether 
the  defendant  bad,  notwithstanding  its  rules,  by  its  conduct  held  oitt  its 
employees  to  the  plaintiff  as  authorized  under  the  circumstance  to  consent 
to  his  being  carried  on  the  train  with  his  cattle. 

Wallace,  J.,  said:  "If  it  should  appear  that  its  employees  have  been  ac- 
cuacomed  to  allot*  drovers  to  accompany  their  cattle  on  the  cattle  trains  so 
generally  and  constantly  that  the  ofBcers  of  the  company  must  have  known 
it,  the  consent  of  th(i  company  may  be  predicated  upon  acquiescence  and 

"The  evidence  shows,"  said  Walker,  J.,  in  Ohio,  etc.,  R.  v.  Mahling,  80 
III.  9,  "that  the  road  had  been  carrying  paBsetigers  on  their  construction 
trains,  and  thej  must  be  held  to  the  same  degree  of  diligence  with  that 
character  of  train,  as  with  their  regular  passenger  coaches,  for  the  safety  of 
the  persons  and  lives  of  their  passengers,'' 

Contrary  Doctrine. — It  has  been  held,  however,  that  as  railroad  companies 
have  the  right  to  make  a  complete  separation  between  their  freight  and  pas- 
senger business,  where  this  is  done  the  conductor  of  a  freight  train  has  no 
power  whatever  as  to  the  transportation  of  passengers,  and  notice  of  this 
limited  authority  will  be  implied  from  the  nature  and  apparent  division  of 
the  business. 

Eaton  o.  Delaware,  etc.,  R.,  S7  N.  Y.  883,  where  Dunn  c  Grand  Trunk 
R.,  66  He.  187,  is  questioned  and  distinguished.  In  the  New  York  case, 
just  cited,  the  plaintiff  was  invited  by  the  conductor  of  a  coat  train  toride 
upon  the  train  with  the  promise  to  get  him  employment  as  a  brakeman. 
There  was  a  "caboose"  at  the  rear  of  the  train,  for  the  carriage  of  train  im- 
plements and  the  accommodation  of  defendant'a  employees,  in  which  the 
plaintiff  rode,  but  paid  no  fare.  Through  the  negligence  of  defendant's 
employees,  a  collision  occurred  and  plaintiff  was  injured.  By  the  regula- 
tions of  the  company,  of  which  plaintiff  had  no  actual  notice,  passengers 
were  forbidden  to  ride  on  coal  trains,  ffdd,  that  the  conductor  had  acted  in 
violation  of  express  instructions  and  that  the  plaintiff  was  not  lawfully  on 
the  train  and  could  not  recover.  Dwlght,  C,  said:  "No  act  of  a  conductor 
of  a  freight  train  will  bind  the  company  as  to  carrying  passengers,  unless 
the  principal  in  some  way  assents  to  it.  In  the  present  case,  it  was  dis- 
tinctly proved  that  the  company  forbade  the  act,  and  there  was  no  evidence 
of  any  form  of  assent  to  its  exercise,  except  that  which  may  be  inferred  from 
the  use  of  the  caboose." 

Where  the  ruies  forbid  the  carrying  of  paasengerfi  on  freight  trains,  and 
the  conductor  has  no  authority  to  relax  them,  a  passenger  who  knows  of  the 
regulations  in  this  particular  and  takes  passage  and  is  injured,  cannot  re- 
cover.    Houston,  etc.,  R.  Co.  e.  Hoore,  49  Tex.  81. 

Bale  vifiere  lome  Freight  Traint  carry  Patiengert. — Where  a  railroad  com- 
pany permits  passengers  to  be  carried  on  eomeof  its  freight  trains,  if  a  per- 
son takes  passage  on  one,  in  good  faith,  supposing  it  to  be  a  freight  train  on 
which  pa^engers  are  carried  and  not  being  informed  to  the  contrary  before 
receiving  personal  Injuries  caused  by  miemansgement  of  the  train,  and  espe- 
cially if  directed  by  the  conductor  of  the  train  to  go  aboard,  although  un- 
authoriEed  by  the  company  to  do  so,  such  person  will  have  the  rights  of  a 


^d  by  Google 


PASSENGERS   ON  PKEIGHT  TRAIN — NEQLIGKNCE. 


^V, 


IifOD,  J.,  said:  "Bj  m&lciDg  a  portion  of  itB  freight  trains  lawful  passen- 
ger tnins,  the  defendant  h&s,  so  far  as  the  public  is  concerned,  apparrenUy 
given  tile  conductors  of  all  ita  freight  traioB  suthorit;  to  carry  paBsengers; 
And  it  any  auch  conductor  has  ordcis  not  to  carrj  paaseogers  ou  bis  train, 
the;  are  or  may  be  in  the  nature  of  secret  instructions,  limiting  or  restrict- 
ing his  apparent  auCboritj,  and  third  persons  are  not  bound  bj  such  inatruc- 
tions  until  informed  thereof." 

Mittiuippi  Code. — Under  the  Hississippi  Code,  a  railroad  companj  is  not 
liable  for  injuries  to  a  passenger  upou  a  freight  train,  not  beingjutended  for 
both  passengers  and  freight,  unless  caused  b;  the  gross  negligence  or  careless- 
ness of  its  servants.  Perkins  c.  Chicago,  etc.,  K.  Co.,  60  Miss.  726;  s.  c,  31 
Am.  &  Eng.  R  R.  Cas.  343.  Bee  further  Burlington,  etc.,  R.  Co.  e.  Rose, 
1  Am.  £f  Eng.  R.  R.  Cas.  217,  and  note;  Perkins  v.  Chicago,  etc.,  R.  Co.,  31 
Am.  &  Eag.  R.  R  Cas.  243,  and  note. 

Jhitjf  to  Provide  Piatformg,  etc. — It  is  the  duty  of  railroads  to  provide  plat- 
forms and  other  accommodations,  proper  means  of  ingress  and  egress  from 
trains,  etc.,  and  to  furnish  lights.  Muses  v.  L.,  N.  O.  &  Tez.  R.  (La.)  3  So. 
Bep.  587.     Buenemann  n.  St.  P.,  M,,  etc.,  R.,  33  Minn.  390. 

A  railroad  company  is  liable  for  injuries  caused  by  want  of  lights  in  sta- 
tion.    Fordyce  n,  Merrill  (Ark.),  5  8.  W.  Rep.  329. 

When  plaintiff  fell  immediately  after  leaving  ticket  oSce  to  take  train,  it 
«annot  be  affirmed  as  matter  of  law  that  absence  of  a  light  was  not  the 
proximate  cause.    Aia.  O.  B.  R.  «.  Arnold  (Ala.),  2  S.  Rep.  337. 

The  (question  of  whether  a  station  platform  was  improperly  constructed  is 
for  the  jury  in  an  action  against  the  railroad  company  by  one  injured  there. 
Stafford  «.  H.  &  St.  J.,  32  Mo.  Ap.  338. 

As  to  injuries  to  passengers  caused  by  defective  station  appointments.  See 
31  Am.  &  Edb.  R.  R.  Cas.  381,  note;  37  Am.  &  Eng.  R.  R.  Cas.  181;  80 
Am.  &  Eng.  R.  R.  Cas.  171. 

Where  passenger  went  to  rear  platform  and  conductor,  fuling  to  see  him, 
■omitted  to  call  name  of  station  and  ordered  train,  which  had  not  stopped, 
to  mnve  on,  whereby  passenger  was  compelled  to  alight  500  or  SOO  yards  be- 
yond bis  station,  and  in  consequence  received  injuries  from  which  he  died, 
Add.  that  company  was  liable  in  more  than  nominal  damages.  L.,  K.  O.  & 
T.  R.  E.  Mask  (Miss.).  2  S.  Rep.  860. 

Where  a  railroad  train  overshoots  a  station,  and  is  stopped  at  a  dangerous 
place  in  a  dark  night,  it  is  not  necessarily  negligent  for  a  passenger  to  alight. 
T.  H.  &  L  R.  n.  Buck,  96  Ind.  340. 

It  is  a  question  of  fact  ordinarily  from  the  circumstances  whether  a  passen- 
ger on  a  train  was  justified  in  supposing  that  he  was  alighting  in  the  night- 
time at  a  proper  place.     Tez.  &  Pac.  R.  e.  Garcia,  62  Tez.  29S. 

A  railway  brakeman  announced  a  station  and  shortly  after  the  train  stopped, 
bat  short  of  the  station  and  in  the  dark.  The  plaintiff,  suppoeing  he  had 
reached  bis  destination,  got  off  as  soon  as  be  could,  but  after  the  train  had 
«lowly  started  again,  fell  and  was  injured.  Held,  that  company  was  liable. 
U.  &  L.  R.  V.  Stringfellow,  44  Ark.  322. 

Where  a  train  is  so  stopped  that  a  lady  can  alight  on  the  platform  only  by 
going  forward  through  the  smoking-car,  she  is  not  negligent  in  getting  nfi 
from  the  rear  end  of  the  car  cu  which  she  is.  Cartwright  c.  C.  &  Q.  T.  R., 
JSa  Mich.  606;  i.  c,  60  Am.  Rep.  274. 

In  an  action  for  injuries  caused  by  want  of  proper  platform,  the  court 
charged:  "If  in  ezercise  of  ordinary  care  the  plaintifi  might  have  safely 
gained  platform,  as  by  passing  through  the  car  forward,  and  she  elected  to 
take  risk  of  alighting  where  ehe  did,  instead  of  taking  the  safe  course,  she 
was  guilty   of  negligence."     The   evidence  showing  that  she   could   have 


^dbvGoo^lc 


10  WAEEEN"  V.  80CTHEBN   KAN.  E,  OO. 

atepped  from  train  to  pUtfonn  b;  paaaiag  through  car  in  front,  held,  thftt 
the  jury  was  bound  to  find  for  defendant.  Eckerd  e.  C.  &  N.  W.  R.,  37 
Am.  &  Eng.  It.  R.  Cbs.  IIS,  note. 

Action  by  passengCT  against  rsiiroad  company  to  recoTcr  for  injuries  re- 
ceived by  jumping  from  a  freight  train,  which  also  carried  pasaeogers,  while  it 
waapasaiti^  a  statton.  ^d,  that  it  wb«  not  negligence  on  part  oF  company  to 
run  the  train  past  the  atation  in  accordance  with  its  regular  custom,  and  in 
order  to  allow  another  train  to  pa<(S  in  the  opposite  direction.  Hemmingwa; 
«.  C.  H.  &  St.  P.  R.  (Wis.),  38  Am.  &  Eng.  R.  K  Caa.  210. 

In  an  action  for  damagea  received  by  plaintiff  while  alighting  from  a  pas- 
senger train,  held,  although  the  length  of  tlie  stop  was-sufficient  to  enablff 
him  to  leave  the  train  in  asfety  under  ordinary  circumstances,  and  he  was 
young,  presumably  active,  unencumbered  with  baggage,  and  the  failure  of 
the  company  adequately  to  light  its  atation  and, platform  was  not  shown  to 
have  contribuied  directly  to  the  injury,  yet  the  injury  having  been  found  by 
the  jury  to  have  been  caused  by  the  railroad's  negligi-nce  iu  this  respect,  the 
verdict  should  not  be  set  aside,  it  appearing  that  the  instructiona  giveo  were 
correct.     St.  L.,  I.  M.  &  S.  R.  e  ■White  (Ark.),  4  8.  W.  Rep.  SB. 

A  complaint  alleging  that  pl&intiS,  while  the  train  was  moving  slowly, 
iraa  injured  in  stepping  on  a  station  platform  which  "  had  been  suffered  to 
get  out  oF  repur  and  wholly  unsuitable  for  the  reception  of  pasaengers,"  and 
which  settled  down  in  the  centre,  forming  an  incline,  which  caused  plaintiS 
to  slip  and  fall  under  the  train,  plaintiff  having  no  knowledge  of  the  defect, 
does  not  sufficiently  ahow  the  injur;  to  be  the  result  of  the  negligence  of  the 
defendant  railroad  company.     Pa.  Co.  e.  Marion,  104  Ind.  239. 

Ab  to  alighting  from  train  at  a  dangerous  place  by  direction  of  railway 
servants.  Bee  Brooks  e.  Boonton,  etc.,  H-t  16  Am.  &  Eug.  R.  R.  Caa.  84S; 
26  Am.  &  £ng.  R.  R.  Caa.  227. 


Wabekn,  by  hia  Next  Friend,  etc 

V. 

SouTHEKN  Kan.  R.  Co. 

(Adaanu  Gate,  Kaniat.     SmmAer  6,  1887.) 

'^bere  the  pluntiff,  a  young  man  19  years  and  4  months  old,  purchases  s 
ticket  from  a  railway  company  to  ride  upon  a  freight  train  five  or  six  miles, 
and  no  one  instructs  him  when  or  where  or  how  to  get  upon  the  train,  or 
what  car  to  get  upon  or  into  \  and  afterwards  the  train  arrives  at  the  atation, 
and  stops  with  the  caboose  near  enough,  and  for  a  sufficient  length  of  time, 
for  the  plaintiff  to  walk  to  the  caboose  and  get  upon  it,  but  he  does  not  do 
so ;  and  afterwards  the  (»iDductor  gives  a  signal  for  the  train  to  start  and 
leave  the  station,  and  the  plaintiff  uoderatacds  it,  and  the  train  then  ap- 
proaches the  station,  moving  slowly,  and  the  engine  passes  the  place  where 
the  plaintiff  is  standing  on  the  station  platform,  and  the  first  car,  whicb  is 
■  slock  car,  with  no  conveniences  for  getting  upon  it  except  an  iron  ladder 
on  its  side,  comes  immediately  in  front  of  the  plaintiff,  and  the  plaiulifil 
without  waiting  for  the  caboose  car  to  arrive,  atlempts  to  jump  upon  the 
stock  car  while  it  i»  in  motion,  and  falls  between  the  stock  car  and  ilie 


^d  by  Google 


PAflSENGEBS— tMEGLIGENCE — FREIGHT  TRAINS.  11 

itatlon  platform,  and  is  injured :  h^ld,  that  the  railna;  compaDj  is  not 
guilty  or  an;  aach  negligence  causing  tbe  injury  aa  will  entitle  the  plaintiff 
to  recorer  damagea  therefor  from  the  company. 

Ebbob  from  district  conrt,  Johnson  county ;  J.  P.  HniDHAN, 

John  T,  Little  and  Samuel  T.  SeaUm  for  plaintiff  in  error. 
George  M.  Peck,  A.  A.  Murd  and  F.  Ji.  Ogg  for  defendant  in 
error. 

Valentinb,  J. — This  was  an  action  bronglit  in  the  district  conrt 
of  Johnson  county  by  Frank  Warren,  by  his  next  friend,  W.  H. 
Washlmni,  a^inet  the  Southern  Kansas  E,  Co.,  for  personal  in- 
jaries  allegedto  have  been  caused  hy  the  negligence  of  tlie  rail- 
road company.  The  case  was  tried  hy  the  conrt  and  jnry,  and 
after  tlie  plaintiff  had  introduced  all  his  evidence,  and  rested,  the 
defendant  demurred  to  the  evidence,  upon  the  ground  that  it  did 
not  prove  any  cause  of  action ;  and  the  court  sustained  tlie  de- 
muiTer,  disciiarged  the  jury,  and  rendered  judgment  in  favor  of 
tbe  defendant,  and  ai^ainst  the  plaintiff,  for  coats ;  and  the  plaintiff, 
as  plaintiff  in  error,  brings  the  case  to  this  court  for  review. 

The  alleged  injuries  were  received  on  July  13,  1885,  at  about 
9  o^ctock  in  the  morning,  at  the  railway  company's  station  in  the 
town  of  Edgerton,  in  Jolinson  county,  Kansas.  At  the  time  of  re- 
ceiving the  injuries,  the  plaintiff  was  19  years  and  1  months  old. 
He  had  lived  in  tiie  town  of  Edgerton  for  about  one  year,  and  seems 
to  have  been  well  acquainted  there,  and  with  the  railway  company's 
mode  of  business  and  signals.  The  injuries  seem  to  have  occurred 
in  the  following  manner:  The  plaintiff  desired  to  go  from 
Edgerton  to  WeTlsviile,  a  town  on  the  company's  railway,  about 
five  or  six  miles  southwest  of  Edgerton,  He  knew  that  a  freight 
train  would  soon  be  due,  and  that  no  passenger  train  would  be  due 
nntil  abont  12  o'clock.  He  went  to  tlie  company's  ticket  agent  at 
Edgerton,  "William  Walton,  und  inqnired  of  him  if  tbe  freight 
train  was  on  time,  and  the  ticket  agent  answered,  subBtantially, 
that  it  was;  and  the  plaintiff  then  said  to  tbe  ticket  agent:  "Do- 
they  carry  passengei'S  on  that  train  yet?"  and  tbe  ticket  agent 
answered:  *'They  do;"  and  then  the  plaintiff  said  to  tbe  ticket 
agent:  "Well,  then,  Billy,  give  me  a  ticket  to  Wellsville;"  and 
the  ticket  agent  then  stamped  a  ticket  for  Wellsville,  and  Jianded 
it  to  the  plaintiff,  and  the  plaintiff  paid  bim  therefor  16  cents. 
This  was  about  all  that  was  said  or  done  at  the  time.  No  one  at 
Sny  time  told  the  plaintiff  when  or  bow  or  where  to  get  on  tbe 
train,  or  what  car  to  get  on.  Soon  afterwards  tbe  train  came  in 
from  the  northeast,  and  stopped  with  the  engine  standing  at  the 
water-tank,  southwest  of  the  station  platform,  and  about  100  feet 
therefrom.     The  Caboose  was  about  300  or  400  feet  northeast  from 


^d  by  Google 


12  W4RBEN  V.  SODTHEKN   KAN.  R.  CO. 

Uie  platform.  The  train  remained  aeveral  minutes  while  talcing 
in  wuter,  and  then  backed  up  abont  300  or  400  feet  to  the  east 
end  of  tlie  yai-d  for  some  ewitchiric;  to  be  done,  wliere  it  remain^ 
about  20  or  30  miiiutee.  Tlie  plaintiff  after  purchasing  hie  ticket, 
and  during  all  the  time  that  the  engine  was  taking  in  water,  ana 
the  train  backing,  and  the  switching  being  done,  and  until  the 
train  started  to  leave,  stood  on  the  eoutliwesC  corner  of  tlic  station 
platform  talking  with  a  friend.  Prior  to  this  time,  the  company's 
fi-eight  trains  eometimea  stopped  at  Edgerton  witli  the  caboose  at 
the  platform,  and  sometimes  they  did  not.  This  was  all  well 
known  to  the  plaintiff.  When  the  switching  was  all  done,  the 
conductor  gave  a  signal  for  the  train  to  start.  The  plaintiff  under- 
stood this  signal.  The  train  then  moved  slowly  in  the  direction 
of  the  platfonn,  and  the  plaintiff  went  to  the  edge  t]iereof,  and 
when  the  firet  car,  the  one  immediately  behind  and  attached  to  the 
engine,  came  opposite  to  the  place  where  lie  stood,  he  attempted  to 
jump  npon  it,  out  fell  to  the  ground  between  the  car  and  the  ^at- 
form,  and  received  the  injuries  of  which  he  now  complains.  The 
car  was  an  ordinary  stock  ear.  The  principal  injury  received  by 
the  plaintiff  was  the  cnishingof  his  left  foot  in  sucha  manner  as  to 
require  the  amputation  thereof  just  above  the  ankle  joint. 

Do  these  facts  show  a  canse  of  action  against  the  railway  com- 
pany ?  In  order  that  the  plaintiff  shall  recover  hi  this  action  it  is 
necessary  for  him  to  show  that  tiie  defendant,  through  its  servants 
or  agents,  was  guilty  of  culpable  negligence;  that  this  negligence 
caused  the  injuries  complained  of,  and  that  the  plaintiff  himself 
was  free  from  all  cnipable  contributory  negligence.  Has  he  shown 
this?  It  is  difficult  to  see  how  the  railway  company,  by  any 
negligence  on  its  part,  caused  the  injuries.  "We  suppose  it  will 
hardly  be  claimed  that  the  company  was  gnilty  of  negligence  la 
stopping  its  train  at  the  water-tank  to  take  in  water,  and  in  per- 
mitting the  train  to  remain  there  for  a  few  minutes;  and  here  we 
might  say  that  there  was  evidence  introduced  on  the  trial  tending 
to  show  that,  while  the  train  was  standing  at  that  place,  two  other 
passengers  for  this  train  walked  back  to  tbe.caboose  and  got  upon 
)t  in  safety.  We  suppose  it  will  hardly  be  claimed  that  the  com- 
pany was  guilty  of  negligence  in  moving  the  train  back  to  the  east 
side  of  the  yard,  and  allowing  it  to  remain  there  for  sonic  20  or  30 
minntes,  and  in  doing  some  switching  in  the  meantime;  nor  will 
it  be  claimed  that  the  company  was  guilty  of  negligence  in  again 
moving  the  train  forward  towards  the  station ;  nor  can  it  be 
claim^  that  in  this  last  removal  of  the  train  the  company  was 
guilty  of  negligence  in  not  stopping  tlie  train  with  the  cabooep 
mimediately  in  front  of  the  station,  for  before  the  caboose  had 
reached  that  point  the  plaintiff  had  attempted  to  jump  upon  the 
first  car  arriving  there,  and  had  received  the  injuries  of  which  he 
now  complains.     From  anything  that  can  positively  be  known,  the 


^d  by  Google 


PASSENGEKS — NEGLIGENCE — FKEIGHT  TBA1N8.  13 

train  might  liave  stopped  with  the  caboose  immediately  in  front 
of  the  station,  if  the  plaintiff  had  only  remained  where  he  Btood  on 
theplatform  ready  to  get  upon  the  caboose  as  soon  as  it  arrived. 

We  take  it,  however,  that  the  principal  negligence  complained 
of  is  the  condactor's  givini;  a  signal  for  the  train  to  start  and  "to 
leave  town."  The  plaintiff  hiinself  testified  that  the  condnctor 
gave  snch  a  signal,  and  that  he  (the  plaintiff)  understood  wliat  it 
meant.  The  giving  of  this  signal,  however,  did  not  cause  tlie 
injnries.  The  injuries  did  not  immediately  flow  from  tlie  giving 
of  the  eignal,  nor  were  they  the  natnral  or  probable  conse- 
quences thereof.  The  giving  of  the  signal  did  not  necessaHly 
caage  the  plaintiff  to  attempt  to  jump  upon  a  stock  car  while  it 
was  in  motion,  nnd  which  had  no  steps  or  other  conveniences  to 
enable  persons  to  get  upon  it,  except  an  iron  ladder  upon  its  side. 
Such  a  signal  would  not  pi-eve;it  the  plaintiff  from  waiting  wliure 
he  stood  on  the  platform  until  the  cabooee  got  to  the  point  wliera 
be  was  standing,  nor  would  it  prevent  him  from  attempting  to  get 
upon  the  caboose  instead  of  upon  the  stock  car;  or,  if  that  was 
dangerous,  it  would  not  prevent  him  from  remaining  at  the  station 
until  the  next  train  arrived,  some  tliree  hours  later.  He  knew, 
wlien  he  bought  his  ticket,  that  freight  trains  did  not  always  or 
generally  stop  with  the  caboose  immediately  in  front  of  the  station, 
and  undoubtedly  he  knew  that  it  was  not  proper  for  him  to  at- 
tempt to  get  upon  a  stock  car  wiiile  in  motion,  or  to  ride  upon  or 
in  any  car  of  a  freight  train  except  the  ciibooee. 

The  entire  negligence  complained  of,  however,  is  the  foregoing 
signal,  coupled  with  the  failure  of  the  railway  company,  through 
its  agents  and  servants,  to  instruct  the  plaintiff  when  and  where 
and  how  to  get  upon  the  train,  and  upon  what  or  into  which  car 
to  got.  We  do  not  think  that  the  railway  company  is  required  to 
give  any  sach  instructions,  and  especially  not  to  a  yonng  miin  in 
Lis  twentieth  year,  strong  and  healthy  and  ordinarily  intelligent, 
and  one  who  knew  as  much  as  the  plaintiff  did  concerning  tlie  rail- 
road business  at  that  particular  place.  Under  the  circumstances, 
we  do  not  think  it  devolved  npon  "Billy"  Walton,  the  ticket 
agent,  or  upon  any  other  one  of  the  company's  agents  or  servants, 
to  instruct  the  plaintiff  how  to  take  care  of  himself.  He  well 
knew  that  it  was  not  the  custom  for  passengers  intending  to  rido 
upon  a  railroad  train,  even  upon  a  freight  train,  to  attempt  to  jump 
upon  a  stock  car  while  in  motion,  or  in  any  case  to  ride  upon  or 
iu  a  stock  car.  If  the  railway  company  did  not  furnish  sunicient 
facilities  to  the  plaintiff  for  him  to  get  upon  the  caboose,  and  even 
if  it  would  not  nave  done  so  if  he  had  waited  for  tiie  caboose  to 
arrive  at  the  platform  where  he  was  standing,  then  his  remedy  was 
to  let  that  train  pass  without  attempting  to  get  upon  it,  and  to  sue 
the  company  for  damages. 
■  It  is  probably  unnecessary  to  say  anything  with  regard  to  the 


^d  by  Google 


14  DOW  et  al.  V.  BBIDELMAN. 

plaintiffs  contribntory  DegligeDce.  Generally  it  is  not  per  se 
negligence  for  a  person  to  get  on  or  off  a  railroad  train  in  the 
■ordinary  manner,  and,  as  people  eometiines  do,  wliile  the  train  \s 
only  slightly  in  motion.  Bailroad  Co.  v.  McCandlese,  33  Kaii. 
373,  371,and  eases  there  cited.  But  to  attempt  to  get  npoii  a  train 
in  the  extraordinary  manner  in  which  the  plaintifE  attempted 
to  get  npon  the  train  in  this  ease  would  seem  to  be  per  se  cnlp- 
able  negligence.  Harvey  v.  Kailroad  Co.,  116  Mass.  269;  Kail- 
road  Co.  V.  Le  Gierse,  51  Tex.  189.  See  Plager  v.  Burlington, 
etc..  R.  R.,  12  Am.  &  Eng.  R.  R.  Caa.  113. 

The  judgment  of  the  district  court  will  be  affirmed. 

(All  the  justices  concurring.) 


Dow  et  al. 


Bbidelmaw. 

(^Advanee  Cote,  Arianiai.     OOobar  SB,  1887.) 

Act  of  the  general  BBBembl;  of  Arkanaas,  approved  April  4,  1887,  to  reeu- 
late  the  rates  of  chargeB  for  the  carriage  of  puseDKere  by  railroads,  proTides 
that,  fur  ao  overcharKe  beyond  the  maximum  fixed  bj  the  act,  the  company 
or  peraoD  operatbe  iheroadHhall  forfeit  and  pa;  not  !esa  than  fifty  nor  more 
than  three  buodred  dollars,  and  costs  of  suit,  includiog  a  reasonable  attor- 
ney'sfee,  etc,  Beld,  that  the  attorney's  fee  ie  a  part  of  the  penalty  for  the  vio- 
lation of  the  provisiooB  of  this  act,  and  stands  upon  the  same  footing  as  the 
money  judgment  to  be  recovered;  and  including  it  as  part  of  the  penalty 
does  not  make  the  act  object) oaablo  as  being  partial  or  unequal  le^sUtioo. 

Appeal 'from  circuit  court,  Pulaski  county;  J.  W.  Mablik,  J. 
U.  M.  (fe  O.  B.  Rom  for  appellanta. 
W.  S.  McCain  for  appellee. 

Smith,  J. — The  act  of  April  4,  18S7,  to  regulate  the  rates  of 
cSiarges  for  the  carriage  of  passengers  by  railroads  provides  that  for 
an  overcharge  beyond  tlie  maximum  fixed  by  the  act,  the  company 
or  person  operating  the  road  shall   forfeit  and  p:iy  not  lees  than 

fifty  nor  more  than  three  hundred  dollars  and  costs  of 
SSacSIaamof  81't,  including  a  reasonable  attorney's  fee,  to  be  taxed 

by  the  court  where  the  cause  is  heard  on  original  action 
or  by  appeal,  to  be  recovered  by  the  party  aggrieved  in  any  court 
of  competent  jurisdiction.  The  attorney's  fee  is  a  part  of  the  pen- 
alty denounced  for  the  wilful  violation  of  the  provisions  of  the 


^d  by  Google 


INJUBT  TO  PA8SENGEB  ON   TKAIN.  16 

act,  and  stands  npon  the  same  footing  as  the  money  judgment  to 
be  recovered.  We  hiive  sustained  the  constitntionahty  of  legisJa- 
tioD  awarding  double  damages  against  a  railroad  company  for  fail- 
ure to  give  tlie  prescribed  notice  of  the  killing  or  injury  of  Hve- 
Btock  by  its  trains.  -Railroad  Co.  v.  Payne,  33  Ark.  816.  So  in 
Other  States  railroad  corporations  have  been  required  by  statute 
to  fence  their  tracks,  and,  in  case  of  failure  so  to  do,  have  been 
made  liable  for  the  damages,  and  in  some  instances  in  double  the 
amount  of  damages,  caused  thereby,  and  done  by  their  cars  and 
engines  to  cattle  or  othor  animals  on  their  roads.  And  snub  laws 
have  been  held  to  fall  within  the  police  power  of  the  State.  Here 
the  damages  are  given  by  way  of  punishment  to  the  company  for 
its  negligence  in  failing  to  build  the  fence.  Thorpe  v.  Railroad 
Co.,  27  Vt.  140;  Railway  Co.  v.  Humes,  115  U.  8.  fil2, 
Johnson  v.  Railroad  Co.,  29  Minn.  425.  An  attor- 
ney's  fee  may  be  included  as  a  part  of  the  penalty  "«  r*"  or 
imposed  for  non-compliance  with  the  duty  imposed,  '""''"' 
without  rendering  the  Statute  obnoxious  to  tlie  objection  of 
beine:  partial  and  unequal  lesislution.  Railway  Co.  v.  Duggan, 
109  111.  537 ;  Railway  Co.  v.  Tanz,  16  Kan.  583  ;  Railway  Co.  v. 
Abney,  30  Xan.  41.  We  have  examined  the  cases  of  Railroad  Co. 
V.  Morris,  65  Ala.  199,  and  Railroad  Co.  v.  Moss,  60  Miss.  646, 
bat  find  .the  principles  therein  decided  to  have  no  application  to  a 
case  like  this. 

An  attorney's  fee  of  $50  ia  allowed  to  the  appellee,  Beidelman, 
to  be  taxed  id  tbe  costs. 


Shbbmas,  Respt. 

V. 

DsLAVABB,  Lackawanna  and  Western  B.  Co.,  Appt. 
{Advanet  Otue,  NmTorh.     OOobarA,  1887.) 

Ia  an  action  to  recover  damages  sustained  by  a  passenger  on  defendant's 
traio  by  falling  over  a  board  placed  across  the  aisle  b;  tlie  brakeman  to 
light  the  lamps,  it  is  not  proper,  on  crogs-exBmination  of  the  brakeman,  for 
the  plaintiff  to  ask  him  to  state  a  conversation  he  had  with  plaintiff  Bubse- 
qaeot  to  the  accident,  in  which  the  brakeman  stated  that  he  bad  forgotten 
to  remove  the  board  and  that  it  was  his  fault;  and  upon  the  brakeman  de- 
nying having  so  stated,  plaintiff  cannot  testify  to  such  coaversntion. 

The  evidence  being  in  its  nature  inadmissible,  plaintiff  could  not  obtain 
the  benefit  of  it  by  crou-ezamining  the  brakeman  in  regard  to  it,  and  upon 
bia  denying  it,  seek  to  prove  it  under  the  guise  of  contradicting  the  brake- 
man,  wbere  there  wa«  nothing  in  the  alleged  coavetsation  which  impeached 
or  contradicted  him. 


^d  by  Google 


16     8HEEMAN  V.  DELAWARE,   LACKAWANNA,  ETC.,  R.  CO. 

The  qaestioD  being  admitted  under  defendant'*  objection,  and  the  wit- 
neu  denying  that  he  ever  said  it,  the  plaintifi  waa  bound  by  his  answer,  apd 
bad  no  right  to  cootradict  him  by  other  evidence.  It  wa*  uDDeceasary  to 
again  repeat  the  objection  when  the  court  asked  tbe  plftintifl  to  repeat  the 


Where  a  verdict  for  plaintifi  has  been  rendered,  and  there  Is  evidence  in 
the  ca^e  which  is  incompetent,  and  which  this  court  cannot  saj  may  not 
hare  iufluenced,  and  probably  did  influence,  the  jury,  it  baa  no  alternative, 
but  must  reverse  the  judgment  and  grant  a  new  triaL 

Appeal  b;  defendant  fi'om  order  and  judgment  of  the  general 
term  of  tlie  court  of  common  pleae  of  tlie  city  and  county  of  New 
York,  affirming  a  judgment  entered  in  favor  of  the  plaintiff  npon 
veriliet.     Reversed. 

Tlie  facts  and  case  are  stated  in  the  opinion. 

Hamilton  OdeU  for  appellant. 

L.  S.  TreadioeU  for  rfiBpondent. 

Peckhau,  J. — The  plaintifE  brought  this  action  to  recover 
damages  alleged  to  have  been  sustained  bj  him  through  the  negli- 
txan.  geiice  of  defendant's  servants.     He  was  a  passenger  oa 

01)^  of  the  defendant's  trains  and  was  going,  in  September,  1882, 
from  Hoboken  to  Marray  Hill  Station.  He  took  the  train  "at  5.20 
ftnd  was  approaching  his  destination  about  6.40. 

The  plaintiff  says  he  heard  a  whistle  which  he  supposed  was 
meant  for  his  station,  and  got  np  from  the  seat  in  whicn  he  was 
sitting,  and  walked  to  the  other  end  of  the  car  to  get  some  of  bis 
baggage,  having  done  which  he  was  returning  to  his  former  seat 
when,  in  passing  niong  the  aisle,  he  tripped  and  fell  over  a  board 
stretcliing  across  it  from  under  one  seat  to  the  one  immediately 
opposite,  wliicli  board  had  been  placed  there  by  a  brakeman,  in 
order  to  reach  and  light  one  of  the  lamps  in  the  car.  The  plaintiff 
says  that  he  was  badly  hurt;  and  he  claims  to  recover  his  damages 
from  the  company,  based  npon  the  alleged  negligence  of  the  brake- 
man  in  leaving  the  board  there  while  he  went  to  the  end  of  the  oar 
to  attend  to  some  duty  consequent  upon  tlie  approach  of  tlie  train 
to  the  station. 

It  was  getting  rather  dark  in  the  car  at  the  time  of  the  accident, 
and  the  board  was  raised  from  the  floor  abont  fifteen  inches ;  and 
the  pUintiS,  while  proceeding  ae  he  says  with  ordinary  care,  failed 
to  see  thS  board  which  was  so  securely  fastened  in  its  place  as  not 
to  yield,  and  it  tlins  caused  tbe  accident.  There  was  a  dispute  as 
to  tlie  time  wlien  the  board  was  placed  there  by  tlie  brakeman — 
tlie  plaintiff  alleging  that  it  was  between  the  time  he  passed  down 
the  aisle  for  his  baggage  and  his  return  to  bis  seat,  while  the  brake- 
man  alleged  that  he  was  standing  or  just  preparing  to  stand  on  the 
hoiiril  when  the  plaintiff  came  np  and  aeked  him  to  let  him  pass, 
which  he  did,  and  in  doing  so  cautioned  him  to  be  careful  about, 
or  to  look  out  for,  the  boaid. 


^d  by  Google 


INJURY   TO   PASSENGEK   ON    TEAIN.  17 

After  tlie  brakeman  had  given  this  teBtimonj  on  his  direct  ex- 
amination tlie  plaintiff's  counsel  asked  liim  what  conversation  be 
had  with  the  plalntiS  on  tbut  day,  white  on  the  train  to  Mnrraj 
Hill  Station.  This  was  objected  to  by  defendsint's 
connsel,  as  incompetent  and  immaterial,  wblcb  being  ■D»Kt 
overruled  he  excepted ;  and  tlie  witness  answered 
that  he  had  none,  not  a  word.  He  was  again  asked  if  he  did  not 
state  to  tbe  plaintiff  that  he  bad  forgotten  to  more  or  slide  back  to 
its  place  the  board  on  wliicb  be  iiad  stood,  and  that  it  was  bis  fault, 
that  be  was  careless.  This  was  also  objected  to,  tbe  objection 
overrnled,  and  tbe  defendant's  counsel  excepted.  Tbe  witness  then 
answered,  and  denied  that  he  had  stated  any  sncb  thing. 

Tbe  plaintiff  was  snbseqnently  recalled  and  asked  bv  his  counsel 
if  he  bad  any  conversation  with  tbe  brakeynan,  in  relation  to  tbe 
accident  on  tbe  day  it  occnrred,  and  be  answered  that  be  had ;  and 
tinder  objection  and  exception  by  defendant's  connsel  be  stated 
that  the  brakeman  asked  liim  if  be  was  mncb  bnrt,  and  be  an- 
swered that  be  was  badly  hurt  and  suffering  great  pain.  The 
conrt  then  asked  bim  to  repeat  tbe  conversation,  wliich  ne  did,  and 
added  (what  be  had  not  stated  in  answer  to  iiis  counsel)  tliat  tbe 
brakeman  said:  "It  is  my  fault, the  board  being  left  there." 

It  is  perfectly  evident  that  tbe  conversation  abont  which  the 
brakeman  was  interrogated  on  his  cross-examination  was  a  conver- 
sation after  tbe  accident  had  happened,  and  was  aimed  at  drawing 
out  a  statement  from  the  witness  as  to  liow  tbe  accident  had  oc- 
cnrred or  what  cansed  it,  and  whose  fault  it  was.  That  evidence 
was  plainly  inadmissible  against  the  defendant.  It  was  no  part  of 
the  res  gestCB,  but  was  calling  simply  for  a  narrative  of  the  cause 
of  a  past  occurrence.  Tbe  authorities  are  onmerous,  and  it  is  not 
necessary  to  cite  tbem. 

Tbe  evidence  being  in  its  nature  inadmissible,  the  plaintiff  could 
not  obtain  tbe  benefit  of  it  by  cross-examining  tbe  brakeman  in  re- 
gard to  it  and,  npon  bis  denying  it,  seek  to  prove  it  by  anotlier 
witness  nnder  tbe  guise  of  contradicting  the  brake-  n.^^ .  ^.— .. 
man.  Tbe  objection  to  the  question  was  well  taken  "'""■ 
when  tbe  plaintiff  asked  it  on  cross-examination;  but  tbe  question 
being  admitted  under  defendant's  objection  and  the  witness  deny- 
ing that  he  ever  said  it,  tbe  plaintiff  was  bound  by  bis  answer  and 
bad  no  right  to  contradict  liim  by  other  evidence.  There  was 
nothing  in  tbe  evidence  of  tbe  alleged  conversation  sworn  to  by 
tbe  plaintiff,  which  legitimately  tended  to  impeach  or  contradict 
tlie  evidence  given  by  tbe  brakeman  on  his  direct  examination 
wbicb  was  proper  as  detailing  a  part  of  tbe  occurrence. 

It  was  urged,  however,  that  the  addition  made  by  the  plaintiff  in 

his  answer  to  the  court,  by  stating  that  tbe  brakeman  said  it  was 

his  fanlt,  did  not  come  in  under  defendant's  objection.  nTid  that 

no  motion  to  strike  it  out  being  made  there  is  no  valid  exception. 

81  A.  &  E  R.  Cu.— a 


^d  by  Google 


18  MAESHALL  V.  BOSTON    AND  A.  R.  CO. 

Thia  ia  not  tenable.  The  evideoee  of  tbe  conversation,  what- 
ever  it  was,  was  dnly  objected  to,  and  the  court  simply  required 
the  witness  to  repeat  it.  It  was  quite  uniieceeeary  to  aguin  repeat 
the  objection.  The  conrt  bad  ah-eady  ruled  that  the  coiiversatioD 
WU8  proper,  and  when  the  witness  in  agHin  answering  made  an  ad- 
ditional statement  it  came  in  under  tlie  objection  and  exception 
already  taken.  It  is  also  said  that  the  evidence  in  the  case  is  so 
plain  as  to  the  happening  and  the  cause  of  the  accident  that  tlie 
testimony  under  consideration  could  not  have  possibly  harmed  the 
defendant. 

■  Thia  we  cannot'  clearly  see.  Tbe  canse  may  liave  been  fnlly 
proved  and  yet  the  responsibility  of  defendant  therefor  not  neces- 
sarily follow.  This  evidence  was  an  adiuission  of  tbe  brakeman 
that  it  was  bis  fault  that  the  board  was  left  there ;  and  we  cannot 
day  that  the  jury  did  not  take  snch  statement  as  an  admission  of  its 
negligence  by  the  company. 

A  verdict  for  the  pluintiff  having  been  rendered,  and  there  being 
in  the  case  evidence  which  was  incompetent,  and  which  we  cannot 
say  may  not  have  influenced,  and  which  probably  did  influence,  the 
jury,  we  have  no  alternative,  but  must  reverse  tlie  judgment  and 
grant  a  new  trial ;  with  costs  to  abide  the  event. 

AH  concnr. 


BoffTOH  AND  A.  R.  Go. 

(Advanix  Oate,  MauaA^mttt.     Odcber  20,  1887.) 

In  suit  agtuDst  a  railroad  for  Msault,  false  imprison  meot,  and  malicious 
proaecution,  it  appeared  that  pUiDtiS,  nho  waa  a  public  lecturer,  held  a 
1000-mile  coupoa  mileage  book,  and  tore  out  some  of  the  coupons  for  his 
own  use,  and  gave  the  book  to  his  assistaut  for  hie  use  in  travelling  to  a  place 
where  pUintifi  was  to  join  him  later,  The  reffulations  on  the  cover  of  the 
book  were  that  the  coupons  should  be  void  if  detached  b;  auy  one  but  the 
conductor,  and  there  was  also  a  rule  of  tbe  company  that  coupons  detached 
b;  the  passenger  would  be  refused,  and  fare  collected,  unless  the  Imok  was 
produced  ;  but  thia  regulation  was  unknown  to  plaintiff.  Plaintiff  presented 
the  detached  coupons,  and  explained  the  absence  of  the  book,  but  the  con- 
ductor refused  to  receive  them  ;  and,  with  the  asai8t«ace  of  a  police  officer, 
arreated  plaintiff,  and  entered  a  complaint  agunst  him  for  fraudutcDtl; 
evading  his  fare,  upoa  which  he  was  a  few  days  afterward  discharged. 
Mild,  that  evidence  that  plaintiff  had  frequi'ntly  aeen  conductors  accept  sim- 
ilar coupons  uuder  similar  circumstances  was  inadmisaible,  except  to 
prove  a  custom  ;  and  that  a  request  for  a  ruling  that  the  evasion  for  which  a 


lib,  Google 


PAS8ENGEE8 — EJECTION   FROM  TRAIN.  19 

pasaenger  tniglit  be  lawfully  ejected  or  removed  from  &  car  muBt  be  &  fnud- 
ulent  one,  with  an  iDtention  to  defraud  the  company,  was  rightly  refused) 
the  court  declining  to  construe  the  words  "ejected  or  remOTed"  as  meaning 
"removed  by  wreat,"  or  "arrested." 

£xcEFTioNa  from  euperior  conrt,  Woi-ceater  county;  Aldrich,  J. 

Toi't  for  an  iieeaalt,  for  aesault  and  false  impriBoumeiit,  and  for 
malicTOus  prosecution,  in  different  counTs.  Ac  the  trial  in  tlid  Bn- 
perior  court  ic  appeared  tliat  tlie  plaintiff  was  a  public  lecturer, 
and,  liaving  delivered  a  lectnre  at  Pouglikeepsie,  New  York,  on 
April  4,  1885,  lie  sent  his  assistant  l)j  iiiglit  train  to  Palmer,  Mas- 
fiiiclilisetts,  intending  himself  to  go  to  Palmer  on  April  6tli. 
Tlie  ])l,iiiitiff  was  the  owner  of  a  1,000-niile  coupon  mileage  ticket, 
good  to  bearer  over  defendant's  railroad,  which  book  was  in  the 
usual  form  and  contained  on  the  fii'st  page  the  printed  words,  "to 
be  tised  upon  the  conditions  named  in  the  contract  attaclied  to  and 
made  a  part  thereof,"  and  on  the  back  page  was  printed  the  follow- 
ing: "Contract.  The  conditions  upon  whicli  this  mileage  coupon 
ticket  is  sold  by  the  Boston  &  Albany  Railroad  Company,  and 
pnrcliased  and  used  by  the  bearer  of  this  ticket,  ai'e  as  follows :  (1) 
That  condoctoi-s  shall  detach,  in  consecutive  order,  coupons  repre- 
senting the  distance  travelled,  except  when  presented  for  any  dis- 
tance less  than  three  miles;  then  three  coupons  shall  be  detaclicd. 
{2)  That  all  mileage  coupons  will  be  void  if  detached  by  any  per- 
son but  the  conductor."  Tiie  plaintiff  tore  out  seven  pages,  con- 
taining 140  coupons,  from  this  book,  and  gave  the  balance  of  the 
book  to  liis  assistant  for  his  use  in  going  to  Palmer.  Upon  April 
fitli,  plaintiS  took  a  train  on  defendant's  road,  intending  to  go  to 
Palmer,  and,  when  the  condnctor  asked  him  for  his  ticket,  he  of- 
fered him  these  coupons,  which  he  had  torn  from  his  mileage  book, 
which  in  amount  were  more  than  snfficicnt  to  pay  his  fare  to 
Palmer,  at  coupon  rates.  The  conductor  asked  the  plaintiff  if  he 
liad  the  book  from  which  these  coupons  had  been  detached,  and 
the  plaintiff  explained  to  liim  the  cii'c  urn  stances  of  his  sending  the 
book  to  Palmer  by  his  assistant,  and  told  him  that  he  could  see  the 
book  when  the  train  arrived  at  Palmer,  as  his  assistant  would  be  at  the 
depot  with  it.  The  condnctor  declined  to  accept  these  coupons  for 
plaintiff's  fare,  and  demanded  the  amount  of  the  casii  fare  to 
Springfield,  whicli  was  as  far  as  that  conductor  would  go  on  that 
train,  as  he  tlien  informed  plaintiS.  The  plaintiff  stated  his  belief 
that  the  coupons  were  good,  and  gave  to  the  conductor  his  card, 
showing  his  name,  business,  and  residence.  The  conductor  told 
the  plaintiff  that  he  h.id  no  doubt  that  plaintiff  owned  the  book, 
bat  stated  that  -coupons  were  not  good  without  the  book,  and  de- 
clined to  accept  them.  At  several  other  times  and  places,  before 
the  arrival  of  the  train  at  Pittsfield,  conversations  similar  to  the 
above  took  place  between  the  plaintiff  and  the  conductor,  the  plain- 
tiff offenrig  these  coupons  for  his  fare,  and  the  conductor  decliniug 


^d  by  Google 


30  MABSHALL  V.  BOSTUN   AHD  A.  B.  CO. 

to  accept  them.  There  wns  also  evidence  to  show  that,  npOQ  the 
arrival  of  the  train  at  Pittsfield,  the  eohdnctor  called  a  policeman 
of  the  town  into  the  car,  and  after  again  demandintr  payment  of 
fare,  and  after  the  plaintifE  had  again  tendered  thecoiipons,  and  re- ' 
fused  to  paj  fare,  the  condnctor,  who  was  a  railroad  police  officer, 
arrested  plaintiff,  and  placed  him  in  charge  of  the  police  officer, 
who  took  plaintiff  to  the  police  station  and  afterward  to  the  dis- 
trict conrt,  where  he  made  a  complaint  againet  the  plaintiff  for 
"  fi-audnJently  evading  the  payment  of  fare  by  refnBing  to  pay  the 
fare  lawfully  establlslied  by  tlie  Boston  &  Albany  Bailroad  Cor- 
poration." The  plaintiff  was  released  on  hail,  and,  at  a  later  day^ 
was  tried  on  the  complaint,  and  diBcharged, 

It  appeared  from  evidence  of  the  defendant  that  the  following, 
among  other  rules  for  the  government  of  conductors,  had  been  es- 
tablished by  the  defendant  corporation,  and  was  in  force  at  the 
time :  "  Coupons  detached  by  passengere  will  be  refneed,  and  fare 
collected,  unless  passengei-s  can  show  tlie  book  from  which  coupons 
were  detached,  which  must  agree  in  number  and  form."  Tliis  rule 
was  not  known  to  the  plaintiff.  The  plaintiff,  for  the  purpose  of 
showing  his  intent  :ind  belief  that  the  said  conpons  werea  proper  ten- 
der of  his  fiire,  offered  to  prove  that  he  had  frequently  seen  the 
conductors  on  the  defendant's  railroad  accept,  without  objection, 
in  payment  of  fai-e,  similar  coupons,  which  liad  been  detaciied  by 
passengei'B  or  othei-a  than  aucli  conductors;  but  the  court  excluded 
the  evidence  in  this  form  and  for  the  specific  purpose  for  which  it 
was  offered,  hot  stated,  if  the  plaintiff  proposed  to  prove  a  custom 
of  tiie  defendant  to  accept  coupons  so  tendered,  the  evidence  would 
be  admissible.  The  plaintiff  asked  the  court  to  rule  that  "the 
evasion  or  attempt  to  evade  the  payment  of  fare,  for  which  a  pas- 
senger may  be  lawfully  ejected  or  removed  from  a  railroad  car, 
must  be  a  fraudulent  evasion,  with  an  intention  to  defraud  the 
railroad  company;"  but  the  court  declined  so  to  rnle,  but  did  nile 
that  the  coupons  offered  by  the  plaintiff  to  the  condnctor  were  not 
a  legal  tender  of  his  fare,  and,  npOTi  the  plaintiff's  I'efusal  to  make 
any  other  payment,  the  condnctor,  who  was  a  railroad  police  officer, 
might  arrest  him.  The  jnry  returned  a  verdict  for  the  defendant 
and  the  plaintiff  alleged  exceptions. 

A.  Jforoross,  H,  C.  Eartwdl,  and  C.  F.  Baker  for  plaintiff. 

Holmes,  J. — 1.  The  ruling  requested  by  the  plaintiff  was  that 
"  the  evasion,  or  attempt  to  evade,  the  payment  of  fare,  for  which  a 
passenger  may  be  lawfully  ejected  or  removed  from  a  railroad  car, 
must  be  a  fraudulent  evasion,  with  an  intent  to  defraud  the  rail- 
road company."  There  is  no  question,  and  the  plaintiff  does 
not  dispute,  that  this  ruling,  if  taken  literally,  was  rightfully 
refused.  Beckwith  v.  Bailroad  Co.,  143  Mass.  68.  We  are 
asked  to  constrne  the  words  "ejected  or  removed,"  in  connec- 


oy  Google 


INJURIES   TO   PASSKNOERS — DAMAGES.  21 

tion  with  the  facts,  and  with  instrnctions  given  and  not  excepted 
to  as  meaning  "  removed  by  arrest,"  or  in  otlier  words  "  arrested," 
We  think,  however,  that  the  sngeestion  does  too  great  violence  to 
the  langnage  need,  and  that  we  shotild  not  be  warranted  in  assum- 
ing that  the  judge  to  whom  tlie  reqneet  was  addressed  nnderstood 
it  as  tlie  phiintiff  wcr.ld  have  us  understand  it. 

2.  The  plaintiS,  for  the  purpose  of  showiitg.his  intent  and  belief 
tliat  the  said  coupons  were  a  proper  tender  of  hie  fare,  offered  to 
prove  that  he  liad  frequently  seen  the  conductors  on  the  defendiiiit 
railroad  company  accept,  witliont  objection,  in  payment  of  fiue, 
similar  coupons,  which  had  been  detuched  from  siun'Iar  mileugt> 
books  by  passengers  or  otiiei-s  than  such  conductors;  Imt  the  court 
excluded  tlie  evidence  in  thiBform  and  for  the  Bpecilic  purpose  for 
which  it  was  offered,  bnt  staled,  if  the  plaintiff  proposed  to  prove 
a  custom  of  the  defendant  to  accept  coupons  so  tendered,  the  evi- 
tienco  wonld  be  admissible;  and  the  plaintiff  excepted.  It  would 
eeem  that  the  plaintiff  conld  not  have  been  injured  by  the  exclu- 
sion of  the  evidence  as  stated;  for,  upon  the  rulings  of  the  court 
under  whicli  this  case  was  tried  witliout  objection  by  the  plaintiff, 
his  belief  or  intent  was  only  mateiial  to  the  count  for  malicious 

Erosecation,  and  the  verdict  for  the  defendant  on  tliat  count  was 
ased  on  the  finding  that  it  acted  nnder  the  advice  of  connsel. 
But  the  evidence  was  properly  excluded.  If  the  plaintiff's  actual 
belief  was  material,  and  was  really  controverted,  he  could  not,  as 
-of  right,  strengthen  his  direct  testimony  as  to  what  his  belief  was 
by  swearing  to  other  facta  which  would  make  it  likely  that  he  be- 
lieved as  he  said.  Delano  v.  Snutli  Clmrities,  138  Mass.  63.  This 
seems  to  have  been  the  purpose  for  which  the  evidence  was  offered. 
If  it  had  been  offered  to  show  that  the  defendant  company  had  jus- 
tified tlie  plaintiff's  conduct  by  its  own,  tlie  court  was  ready  to  ad- 
mit it  enbiect  to  proper  limitations.  The  other  exception  is  waived. 
Exceptious  overruled. 


Staai.,  Bespt., 

V. 

Oeahd  Stbest  and  Newtown  B.  Co.,  Appt. 

(^Athanc*  Oat,  S«»  Tori.     Oettiier  11,  1887.) 

la  an  action  to  recover  damages  for  personal  injuries  suBlained  by  plaintiff 
iTom  the  defendant's  n^Iigence,  where  Iom  o(  time  is  claimed  as  an  item  of 
damages,  if  plaintiff  faiU  to  prove  value  of  the  time  loat  or  facU  on  nhich  an 
estimate  of  such  valne  can  be  founded,  onl7  nominal  damages  for  that  item 
can  be  given. 


^d  by  Google 


23  BTAAL  V.  GRANb  STREET   AND   NEWTOWN   B.  CO. 

Before  dunwes  for  future  pecuniar;  lou  from,  iDabilitjtoearDnliTetihood 
can  be  Awarded  in  such  acdon,  there  Bhould  be  proof  of  the  plaintifTs  cir- 
oumstances,  coaditioo  in  life,  his  wage  earning  power,  skill  and  capacity. 

Appeal  from  a  jndgment  of  the  eapreme  court  at  general  term 
in  tlie  Becond  deparCmetit,  affirming  a  judgment  entered  on  a  ver> 
diet  at  tlie  Kings  circuit  for  $2650  in  favor  of  plaintiff  In  im  actioa 
for  diimagea  for  personal  injuries.     ^Reversed. 

Reported  below,  36  Hun,  208. 

Tlie  case  appears  from  the  opinion. 

Alhert  0.  McDonald,  for  appellant. 

A.  Simia,  Jr.,  for  respondent 

Eabl,  J. — The  plaintiff  broaght  thiB  action  to  recover  damages 
for  injuries  which  he  claimed  to  have  snstained  while  alighting 
from  one  of  the  defendant's  care  in  which  he  was  a  passenger ;  ana 
he  recovered  a  jndgraent  which  has  been  affirmed  at  the  general 
term. 

This  appeal  brings  to  onr  attention  only  exceptions  to  the  charge 
of  the  trial  judge  relating  to  the  damages  wtiicli  the  jury  migTit 
award.  That  portion  of  the  charge  and  the  exceptions  thereto  are 
as  follows :  that  the  "Plaintiff  is  entitled  to  recover,  as 
c^MiB  oriBx  (Jainiiges  in  this  action,  compensation  :  first,  for  the  pain 
and  snffenng  that  he  has  encountered  ;  second,  as  this 
injnry  is  to  some  extent  at  Icaat  pennanent,  lie  is  entitled  to 
compensation  for  the  results  which  will  flow  in  the  futnre  from 
this  injury ;  that  is,  for  any  suffering  and  inconvenience  he  will 
have  in  life  resulting  from  this  injury,  and  for  pecnniary  loss  on 
account  of  the  injury  caused  by  the  diminution  in  his  ability  to 
earn  a  livelihood.  There  is  no  hard  rule  to  be  laid  down  to  yon  in 
this  case.  Ton  must  say,  onder  all  the  circumstances,  considering 
what  pain  he  has  suffered,  what  his  loss  has  been,  in  bis  circnm- 
stances  in  life  the  chances  of  what  money  be  would  make,  and  his 
age  (considering  the  injnry  and  the  results  of  that  injuryj  what 
would  lie  a  fair  compensation.  All  that  is  left  to  the  good  sense 
of  the  jury." 

The  coansel  for  defendant  then  excepted  "  To  that  part  of  Toor 
Honor's  charge  in  which  you  say  that  the  jury  may  allow  him  his 
jwenniary  losses  resulting  from  his  disability  owing  to  this  ac- 
cident;" and  he  requested  the  judge  to  charge  that  "The  jury 
should  take  into  consideration  the  great  age  of  the  plaintiff  as 
affectinw  future  continuance  of  life." 

The  judge  replied  :  "  I  charge  that ;  and  I  will  say  further  that 
in  this  case  there  is  no  proof  of  loss  shown  by  what  his  income  was 
up  to  that  time.  What  the  court,  therefore,  told  yon  as  to  pecun- 
iary losses  was  in  connection  with  the  fnture."  To  that  defendant's 
coansel  excepted,  and  requested  the  judge  to  charge  that  the  jury 


^dbvGooglc 


INJURIES  TO   FABBENGERS — DAUAQES.  23 

conld  not  "  make  f  artber  allowance  to  tlie  plaintiff  for  ezpenseB  of 
treatineat  or  care  for  the  past  or  fntnre." 

In  reference  to  the  request  the  jndge  said  :  "  I  chai^  that  for 
tiie  past.  For  fitCure  expeiiBes  the  jury  have  a  right  to  consider 
the  expenses  of  tliis  injury,  if  they  find  this  renders  the  plaintiff  to 
any  extent  helpless — and  also  to  consider  to  what  espenditnree,  to 
make  hiin  comfortable,  he  will  hare  to  go  ;"  and  to  that  defendant's 
connsel  excepted. 

-  Tliis  is  the  entire  charge  relating  to  the  damages ;  and  that  it 
may  be  appreciated  it  mnst  be  stated  that  immediately  after  the 
injury,  the  plaintiff  was  taken  to  a  charity  hospital,  where  be 
remained  about  three  months ;  that  he  then  went  to  another  charity 
hospital,  where  he  remained  several  months ;  and  that  he  then  went 
to  the  county  almshouse,  where  he  remained  until  tlie  time  of  tlie 
trial,  not  having  at  any  time  been  subjected  to  any  personal  expensea. 
.  There  was  proof  that  the  plaintiff  was  a  fresco  painter,  and  that  for 
some  time  before  his  injuries  he  liad  been  employed  by  a  peraoB 
who  was  engaged  in  the  business  of  painting. 

No  special  damages  and  no  pecuniary  losses,  past  or  future  were 
aileged  in  the  complaint.  There  was  no  proof  whatever  aa  to  the 
plaintifFs  circumstances  in  life,  except  that  before  the  injury  his 
general  health  was  very  good.  There  was  no  proof  touching  bis 
age,  liabits,  capacity,  ability  to  work,  skill  in  liis  trade,  his  wagesor 
bia  earnings,  or  the  compensation  he  was  able  to  earn,  or  his  chances 
of  getting  work.  There  was  not  even  any  proof  that  he  had  earned 
or  that  he  was  able  to  earn  a  livelihood. 

The  judge,  recognizing  the  rule  laid  down  in  Leeds  v.  Metro- 
politan Gas  Light  Co.,  90  N.  Y.  26,  finally  charged  that  the  proof 
did  not  authorize  tlie  jury  to  awai-d  any  d;iniages  for  inability  to 
work  and  earn  wages  prior  to  the  trial.  But  he  cliarged  that  they 
conld  allow  such  damages  for  the  future,  that  is  that  they  could 
take  into  account,  as  a  distinct  item  of  damages,  the  plaintiff's 
pecnniary  loss  "  on  account  of  the  injury  caused  by  the  diminution 
in  bis  ability  to  earn  a  livelihood,"  and  "  the  chances  of  what  money 
be  wonld  make"  but  for  t!ie  injury. 

This  charge  was  clearly  in  conflict  with  tlie  rule  laid  down  in  the 
case  cited.  Tn  that  case  we  held  that  where  loss  of  time  is  claimed 
as  an  item  of  damages,  in  such  a  case  as  this,  if  plaintiff  fails  to 
prove  the  value  of  the  time  lost  or  facts  on  whicn  an 
estimate  of  audi  value  can  be  founded,  only  nominal  Sf'i^f""" 
damages  for  that  item  can  be  given.  There  it  was 
proved  that  the  plaintiff  was  engaged  in_ business  at  the  time  of  the 
injnry,  and  that  he  had  not  been  able  to  attend  to  his  business 
since  ;  but  it  was  not  shown  what  his  business  was,  or  the  value  of 
his  time,  or  any  facts  as  to  his  occupation  from  which  the  value 
conld  be  estimated.  The  court  charged  that  the  plaintiff  if  entitled 
to  a  verdict  was  "entitled  to  recover  compensation  for  the  time 


^d  by  Google 


24  CHICAGO  AND  ALTON   K.  CO.  V.  PILLSBDEY. 

lost  in  coneequence  of  confinement  to  the  honse  or  in  consequence 
uf  Iiis  disability  to  labor  from  tlie  iujnry  enscained." 

The  charge  was  lield  to  be  erraneous,  as  the  jury  vas  left  to  gness 
at  or  speculate  upon  the  vulue  of  the  lost  time  without  any  basis 
in  that  respect  for  their  judgment  to  rest  npon.  It  is  trne  that  the 
charge  there  related  to  past  loss.  Bnt  if  a  jury  cannot,  without 
any  adequate  basis,  guese  or  speculate  in  such  an  action  as  to  the 
pecuniary  loss  suffered  by  the  plaintiff  before  the  trial,  we  can 
pei-ceive  no  reason  for  not  applying  the  same  rnle  to  future  pecuniary 
loss.  Before  damages  for  future  pecnniavy  loss  can  be  awarded 
there  should  be  some  proof,  such  as  a  party  can  alwavs  give,  of  his 
circumstances  and  condition  in  life,  liis  earning  power,  skill  and 
capacity.  So  much  is  left  to  the  arbitrary  judgment  of  jurors  in 
this  class  of  cases  that  the  rule  which  requires  such  proof  of  pecun- 
iary loss  should  not  be  relaxed. 

The  judgment  should,  therefore,  be  reversed  and  a  new  trial 
granted;  costs  to  abide  event. 

All  concur,  except  finger,  Ch.  J.,  and  Danforth,  J.,  dissenting. 

See  Galveaton,  etc.,  K  Co.  v.  Dunlary,  11  Am.  &  Sng.  R.  R.  Cas.  678,  and 


Ohioaoo  ahd  Alton  R,  Co.,  Appt] 

V. 

P1LL8BUKT. 

{Aditatuie  OoM,  lUinoU.    Mvtmber  11,  1867.) 

The  degree  of  care  required  of  &  common  carrier  to  aecure  the  safety  of 
passengers  on  its  truns  ts  a  questioD  of  law.  With  regard  to  macbinerj  aod 
COTS  furnished  for  the  cturiage  of  passengers,  the  fltnesi  of  the  roadbed,  the 
competency  and  faithfulness  of  the  servsota  employed,  and  the  use  of  the 
best  kaown  mechaoical  appnances  to  eoeure  safet;,  the  passenger  must  rely 
Bolelj  on  the  carrier,  and  can  do  nothing  to  ensure  his  personal  safety;  and 
for  that  reasou  the  carrier  in  this  respect  is  held  to  the  higheat  reasonable  and 
practicable  skill  and  diligence.  With  regard  to  dangers  and  hazards  arisins 
otherwise  than  on  the  train,  and  not  incident  of  such  travel,  the  degree  of 
care  to  be  observed  to  discover  and  prevent  all  danger  aud  consequent  in- 
juries to  passengers  must  depend  in  a  large  measure  on  the  attendant  circum- 
stances. Id  man;  cases  the  observation  of  ordinary  care  and  diligence  to 
dis(H>Ter  and  prevent  injury  to  passengers,  such  as  any  prudent  person  would 
exercise  for  his  own  personal  safety,  will  exonerate  from  liability.  In  other 
cases  and  under  other  circumstances  it  will  be  the  duty  of  the  carrier  to 
exercise  the  utmost  care,  skill,  and  diligence  to  protect  the  passengers  from 
danger  and  injury,  so  far  as  the  same,  by  the  exercise  of  such  carCj  skill, 
and  diligence  can  be  reaaonably  and  practiaablj  foreseen  to  prevent  injury. 


^d  by  Google 


PASSENGERS — STOPPING   TRAIN  IN   MIDST   OF  A  MOB.      25 

Id  do  caae  roust  the  carrier  expose  the  paaaeager  to  extTk-haxardou*  danger, 
that  mishl  readily  be  ditcovered  or  anticipated  b;  the  use  of  reasonable, 
practicable  care  and  diiigence. 

A  railroad  compan;r  is  liable  for  an  injury  received  faj  a  paacenger  upon  its 
tegular  passenger  train  that  was  voluntarily  stopped  at  certain  ore  docks, 
not  at  a  regular  atation,  in  the  midst  of  an  excited  mob  of  striking  workmen, 
'where  the  train  took  into  the  smoking-car,  without  warning  the  pUia till, 
who  was  in  that  car,  a  number  of  non-union  men  against  wliom  the  animos- 
ity of  the  crowd  was  excited,  resulting  at  the  next  railroad  crossing,  about 
one  and  three-eights  miles  distant,  in  the  capture  of  the  train, — the  mob 
breakinff  into  the  car  where  plaintiff  was  riding,  beating  the  non-union 
men,  firing  pistols  in  and  around  the  car,  and  wounding  the  plaintiff  griev- 
ously. It  appesrine  that,  prior  to  this  time,  the  box  car  containing  oon- 
unioQ  laborera  had  been  assailed  at  a  still  greater  distaoce  from  the  depot,  it 
might  reasonably  have  been  inferred  that  the  danger  to  passenger  cars  on 
the  same  account  was  imminent.  Under  the  circumstances,  the  law  would 
charge  the  defendant  with  negligence  in  stopping  a  train  full  of  passengers 
in  the  midst  of  a  howling,  revengeful,  lawless  mob,  to  take  on  persons 
"whom  the  mob  were  seeking  an  opportunity  to  maltreat.  To  do  so  was  a 
needless  and  unwarrantable  exposure  of  the  lives  and  persons  of  passengers 
to  imminent  peril.  As  all  events,  the  offensive  persons  should  have  been 
placed  in  a  car  to  themselves,  where  they  could  have  been  protected, 
«r  could  have  protected  themselves,  without  danger  to  regular  pas- 
sengers who  bad  not  previously  been  advised  as  to  the  danger  to 
be  encountered.  That  the  officers  of  the  road  were  not  informed  that  the 
rioters  proposed  an  attack  on  the  passen^r  train  at  the  crossing  does  not 
relieve  the  defendant  from  responsibility.  Such  knowledge  would  have 
randered  their  action  criminal. 

An  instruction  was  not  erroneous,  aa  applied  to  such  a  caae,  that  it  was  the 
^nty  of  defendant,  as  acomnton  carrier  of  passengers,  "to  exercise  the  utmost 
care,  skill,  and  vigilance  to  carry  plaintiff  safely,  and  to  protect  him  against 
any  and  all  danger,  from  whatever  source  arising,  so  far  as  the  same  could, 
by  the  exercise  of  such  a  degree  of  care  and  vigilaace,  have  been  reasonably 
foreseen  and  prevented." 

Where  it  was  assigned  for  error  that  the  court  permitted  counsel,  in  bis 
'Cloaing  argument,  to  make  a  statement  of  facta  not  in  evidence,  to  the  prej- 
udice of  the  defendant,  and  to  address  the  jurors  by  name,  and  to  propound 
questions  to  them,  and  to  receive  answers  to  such  questions,  against  the  ob- 
jection of  defendant, — it  was  said  that  the  manner  of  conducting  the  oral 
argument  before  the  jur^  is  so  much  -within  the  discretion  of  the  trial  court 
,  that  this  court  will  hesitate  to  interfere  unless  it  should  appear  manifest 
injustice  has  been  done. 

Appeal  from  a  jadgment  of  the  appellate  coart,  second  dis- 
trict, affirming  a  judgment  of  the  Will  circuit  oonrt  against  the 
defendant  in  a  eiiit  b;  a  pasaeoger  for  iujnriea  received  on  defend- 
ant's train  from  a  mob. 

Affirmed. 

This  action  was  bronght  by  tlie  appellee  to  recover  from  the  ap- 
pellant damages  for  injnriee  received  b;  him  while  a  paseeiiser 
upon  one  of  its  trains.  Tlie  verdict  was  for  $12,500,  on  winch 
judgment  was  rendered  ;  and  this  was  afHrnied  in  appellate  court. 

On  June  1, 1882,  the  appellee  took  passage  upon  the  Dwight 
aocommodation — %  rs^nlar  passenger  train— ^t  the  depot  in  Clii- 


^d  by  Google 


36  CHICAGO   AND   ALTON   R.  CO.  V.  PILL8B0ET. 

cago,  to  be  carried  to  Dwiglit,  toward  his  home  in  Fontiac  When 
the  train  readied  ceitain  ore  docks  belotiging  to  the  Joliet  Steel 
Go.' it  was  stopped  in  the  midst  of  a  moo  of  strikine  workmen^ 
tlieretofore  employed  by  tlie  Gteel  conipan;,  who  had  "gone  out 
OQ  a  strike,"  and  took  on  board  quite  a  number  of  non-nnioii  men, 
or  "  scuba,"  as  they  were  termed  by  tlie  strikers,  and  at  the  next 
railroad  crossing,  about  one  and  tliree-eiglithe  miles  distant,  the 
train  waa  captui-ed  by  h  portion  of  tlie  strikei-s,  who  had  congre- 
gated there  for  tite  purpose,  and  broke  into  t!ie  car  wherein  die 
appellee  was  riding,  and  commenced  beating  the  non-union  men, 
and  tiring  pistols  in  and  around  tlie  car.  Tlie  appellee  received  a 
bullet,  thus  tii-ed,  in  his  left  groin,  wounding  him  grievously  and 
dangerously,  and  from  the  effects  of  which  he  Las  since  suffered 
contiimal  pain. 

C  Beekwitk,  George  S.  House,  and  A.  S.  Trade  for  appellant. 

C  C  Stravm  and  Gamsey  <&  Snox,  with  £.  F.  Bull  uid 
Mwnm.  <&  Munn,  for  appellee. 

Scott,  J, — Under  the  facts  as  they  mnst  have  been  found  from 
the  evidence  by  the  trial  and  appellee  courts  it  is  a  question  of 
law  what  duty  defendant  owed  to  plaintiff  and  other  passeneers  on 
the  train  at  tlie  time  the  .injury  was  inflicted  upon  plaintiff,  and 
whether  any  liability  rested  upon  defendant. 

Upon  these  question  the  trial  court  instructed  the  jury  it  was 
the  duty  of  defendant,  as  a  common  cirrier  of  passengers,  "to 
iHvnujcnoia  exercisc  the  utmost  care,  skill,  and  vigilance  to  carry 
oFiHicouBT.  plaintiff  safely,  and  to  protect  him  against  any  and  all 
danger,  from  whatever  source  arising,  so  far  as  the  same  could,  by 
the  exercise  of  such  a  degree  of  care  and  vigilance,  have  been 
reasoiiiibly  foreseen  and  prevented,"  It  is  said  this  instruction 
does  not  announce  the  law  witii  entire  accuracy  ;  that  it  required 
a  higher  degree  of  care  to  be  observed  by  defendant  for  the  safe 
carrying  of  a  passenger  tlian  tlie  law  imposes,  and  in  that  respect 
was  misleading.  It  is  freely  conceded  there  is  a  marked  distinc- 
tion between  tlia  liability  of  a  common  carrier  as  to  freights  and 
passeiigors.  As  to  freigiits,  the  carrier  is  an  insurer,  and  is  obli- 
gated to  carry  and  deliver  safely  at  whatever  hazard,  and  from  that 
obligation  it  can  only  be  relieved  by  "the  act  of  God"  or  the 
public  enemy.  But  tlie  carrier  is  not  an  insurer  of  the  absolute 
safety  of  the  passenger  to  be  carried.  Its  liability  in  that  respect 
is  limited  by  care  and  diligence.  What  degree  of  care.the  com- 
mon  carrier  must  observe  for  the  safety  of  a  passenger 
c^intga  or  on  its  train,  to  exonerate  it  from  liability  for  injury,  is 
a  question  of  law.  The  rule  of  law  is  quite  well  un- 
derstood that,  as  to  the  selection  of  suitable  machinery  and  cars, 
the  fitness  of  the  road — lioth  as  to  matmer  of  eonstrnction  and 
materials  used, — and  in   the  use  of  all  appliances  adopted  for  the 


^d  by  Google 


PASSENGERS — STOPPING  TEAIN  IN  MIDST  OP  A  MOB.      2T 

gOTerninent  or  moving  of  traina,  and  as  to  the  selection  and  re- 
tention of  competent  and  faitlifnl  servants,  tlie  earner  of  paseen- 
gere  is  obligated  to  use  tlie  Iiiglieet  reasonable  and  practicable  Bkitl, 
care,  and  dilii^nce.  TJiis  principle  of  law  is  not  called  in  qiiCRtion, 
bnt  tlie  arganient  is  made  that,  in  gnarding  tbe  paesengers  from 
dangers  and  perils  not  incident  to  ordinary  railway  travel,  tlie- 
carrier  is  only  to  be  lield  to  tlie  nse  of  ordinai-y  and  reasonable 
care  and  diligence.  The  distinction  taken  is  not  without  support 
both  in  reason  and  anthoHCy.  So  far  as  the  machinery  ana  car» 
fnniislied  for  the  carri^e  of  passen^rs,  the  fitness  of  the  road- 
bed, and  the  competency  and  faithfnhiess  of  the  servants  em- 
ployed, and  in  the  nse  of  the  best  known  mechanical  appliances  to 
ensure  safety,  are  concerned,  tlie  passenger  innst  rely  solely  on  the- 
carrier  and  can  do  nothing  to  ensnre  liis  personal  safety.  It  is  for 
that  reason  the  carrier  in  this  respect  is  obligated  to  tlie  highest 
reasonable  and  practical  skill  and  diligence.  The  safety  of  paesen- 
gen  reqniree  the  strict  and  rigid  observanceof  tliig  rule  against  all 
carriers  by  rail  or  otherwise.  Bat  as  to  dangers  and  perils  not 
incident  to  ordinary  perils  by  any  mode  of  travel,  the  rnle  of 
liability  imposed  upon  the  carrier  of  passengers  by  law  is  less 
stringent.  Tlie  carrier,  however,  most  omit  no  care  to  discover 
and  prevent  danger  to  a  passenger  or  passengers  tiiat  ia  ^reasonable- 
and  practicable.  The  public  exigency  and  security  demand  thia^ 
mncn  of  the  carrier  at  all  times  and  under  all  circnm-  j)„„  „  ps^ 
stances.  It  is  the  duty  of  carriers  by  rail  to  preserve  «*"™**"«b. 
order  in  their  carriages,  and  to  protect  passengers  from  all  dangers, 
from  whatever  soni'ce  ai-ising,  on  their  trains, — whether  from  the- 
dangerous  and  violent  condnct  of  other  passengers  or  otherwise. 
To  this  end  all  oondnctors  in  this  State,  while  on  dnty  on  their 
respective  ti-ains,  are  invested  bystatute  with  police  power.  With 
regard  to  danger  and  hazard  to  ti-avel  arising  otlierwise  than  on 
tlie  train,  and  not  incidents  of  such  travel,  the  degree  of  care  to  be 
observed  to  discover  and  prevent  all  danger  to,  and  conseqnent 
injnries  to,  passengers,  mnst  depend  in  a  large  measura  on  the 
attendant  cirenmstances.  No  doubt,  in  many  eases,  if  the  carrier 
observes  orditrary  care  and  diligence  to  discover  and  prevent  in- 
jnry  to  passengers,  such  as  any  prndent  person  would  do  for  his 
own  personal  safety,  it  will  be  exonerated  from  liability.  In 
other  cases  and  under  other  circnm  stances  it  will  no  doubt  be  the 
dnty  of  the  carrier  to  exeraise  the  utmost  care,  skill,  and  diligence 
to  protect  the  p^sengers  from  danger  and  itijnry.  so  fur  as  the 
same,  by  tlie  exercise  of  Buch  care  and  skill  and  diligence,  conid 
have  been  reasonably  and  practicably  foreseen  and  anticipated  in 
time-to  prevent  ininry.  In  no  case  mnst  the  carrier  expose  the 
pasaenger  to  extra-liazardoQS  dangers  that  might  readily  be  ilifl- 
covered  or  anticipated  by  all  reasonable  practicable  care  and  dili- 
gence.    It  ia  upon  this  latter  principle,  if  at  al),  that  defendant 


iiz^dbvCoOglc 


128  CHICAGO   AND   ALTON  B.  00.  V.  PILL&BUET. 

can  be  held  liable  for  the  personal  iiijnries  received  by  plaintiff. 
So  far  as  any  qneeCion  of  fact  is  involved,  it  will  be  presiitned  it 
was  found  against  defendant  by  the  trial  court.  There  ia  some 
evidence  that  would  warrant  the  jnry  in  finding  defendant's 
servants  were  fully  advised  it  was  a  dangerous  service  to  take  off 
and  put  on  the  non-union  workmen  at  the  dock  gate. 

It  must  have  been  found  they  knew  a  desperate  and  wicked 

mob,  consisting  of  great  numbers,  was  organized  there 
n^MTOFiiaS!  to  prevent  at  ali  hazards,  whatever  the  consequences 

might  be,  the  taking  on  of  these  men  ;  and  that  it 
<!Ould  only  be  done  by  the  aid  of  a  powerful  and  efficient  poHce 
force.  Prior  to  the  time  the  plaintiff  was  injured,  tlie  box  ears 
.containing  tliese  laborers  had  been  assailed,  and  it  might  reason- 
ably have  been  inferred  that  danger  to  passenger  cars  on  the  same 
account  was  imminent;  and  common  prudence  should  have  in- 
duced the  taking  of  extraordinary  precauttou.iry  measures.  It 
could  Iiave  been  readily  ascertained,  upon  the  slightest  inquiry,  the 
fury  of  the  mob  had-  in  no  degree  abated.  Heasonably  it  migiit 
Lave  been  inferred  it  would  be  dangerous  to  continue  to  tjike  on 
and  put  6S  the  laborers  in  the  midst  of  that  lawless  assembly  of 
rioters.  Even  ordinary  care  would  have  discerned  the  danger. 
Under  the  cirenmstances,  the  law  would  charge  defendant  with 
negligence  in  stopping  a  train  filled  with  passengers  in  the  midst 
of  a  howling,  revengeful,  lawless  mob,  to  take  on  persons  whom 
tlie  mob  were  seeking  an  opportunity  to  maltreat.  The  defendant 
was  under  no  legal  obligation  to  stop  its  train  at  the  point  in  qnes- 
tion,  as  it  was  not  a  station 'designated  for  that  purpose.  To  do 
fio  was  a  needless  and  unwarrantable  exposnre  of  tlie  lives  and  per- 
sons of  passengers  to  imminent  peril.  This  train,  filled  ae  it  waa 
with  men,  women,  and  children, — as  it  may  be  presumed  it  was, — 
stopped  at  a  point,  not  a  station,  in  the  midst  of  a  fierce  mob,  and 
the  objects  of  its  vengeance  taken  into  the  same  car  with  passea- 

£rs.  Tiiis  was  unwise  and  hazardous  in  the  extreme,  to  say  the 
ist  of  it.  At  all  events  the  offensive  persons  should  have  been 
placed  in  a  ear  to  themselves,  where  they  could  have  been  pro- 
tected, or  conid  liave  protected  themselves,  witliout  danger  to 
regular  passengers  who  had  not  previously  been  advised  as  to  the 
danger  to  be  encountered.  Some  of  the  passengers,  it  seems, 
were  advised  by  the  conductor  it  would  be  dangerous  to  remain 
in  the  smoking-car,  where  the  laborei-s  were  to  be  received,  but 
plaintiff  was  not  so  advised. 

It  is  said  none  of  the  officers  had  anv  knowledge  the  rioters 
intended  to,  or  had  any  purpose  to,  attack  defendant's  passenger 
train  at  BrightOQ  Park,  or  elsewhere,  or  at  that  or  at  any  otlier 
train.  That  is  no  doubt  true.  Had  tlie  officers  of  the  road  been 
informed  the  rioters  purposed  an  attack  on  the  passenger  train  of 
defendant  at  Brighton  Park,  or  elsewhere,  it  would  liave  been 


^d  by  Google 


PA88ENGEEE8 — STOPPING  TRAIN   IN   MIDST  OF  A  MOB.      3» 

criminal  negligence  to  have  exposed  the  passengers  to  etich  peril 
withont  each  sufficient  police  protection  as  would  Lave  afforded 
protection ;  and  which  would  have  been  inexcusable  for  any  rea- 
son or  upon  any  ground.  No  snch  negligence  can  be  imputed  to 
defendant  under  the  facts  of  this  case.  BnC  defendant  onglit  rea- 
sonably to  have  anticipated  the  mob  miglit  attack  its  train  tu  reach 
the  object  of  their  vengeance,  so  Eoon  as  it  had  passed  from  the 
protection  of  the  police  ;  and  precautionary  measures  should  have 
been  taken.  Snch  a  thing  was  likely  to  occur  at  any  near  distance 
from  the  central  point  of  the  disturbance.  A  like  attack  had  been 
made  prior  to  that  time,  two  miles  distant,  upon  the  lal>orei-s  tliat 
had  been  carried  in  the  box  car.  On  this  occuHJon  tiie  mob  seems 
to  have  been  more  violent  than  usual,  and  the  utmost  care  and 
vigilance  should  have  been  taken  to  prevent  the  injury  to  passen- 
gers. The  vei'dict  is  a  sufficient  warrant  for  the  coucluaiou  reason- 
able precautions  were  nut  observed. 

Some  criticism  is  made  on  the  instruction  given,  in  the  use  of 
the  word  "  such "  and  in  the  use  of  the  woi'ds  "  care,  f„„  umiijc- 
skili,  and  diligence  ;"-bnt  the  distinction  taken  in  this  "'"•■™i"™'- 
respect  is  too  subtle  to  be  warranted  by  any  fair  i-eudtng  of  the  in- 
struction. After  a  most  careful  consideration  it  is  thought  the 
first  instrnction  given  for  tlie  plaintiff,  of  which  coin|)Taint  is 
made,  states  the  law  applicable  to  the  facts  of  this  case  with  enffi- 
cient  accuracy,  and  there  is  no  just  ground  for  complaint  on  that 
score. 

It  might  be  that  in  another  case,  where  the  facts  are  materially 
different,  the  instruction  would  not  be  applicable,  and  might  be 
held  to  impose  a  degree  of  care  and  skill  not  enjoined  by  tlie  law. 

Wiiat  is  said  of  tlie  first  instruction  is  suflicieiit  to  dispose  of 
the  objections  to  the  other  instrucuons,  and  they  need  OTHraOTTnoo- 
not  be  further  discussed.  It  may  be  conceded  the  fifth  "'*'■ 
instruction  of  the'series  given  for  plaintiff  is  in  some  respects 
slightly  inaccurate,  but  not  seriously  so.  The  injury  suffered  by 
plaintiff  is  bo  serions  in  its  consequences  the  judgment  in  his  favor 
ought  not  to  ba  reversed  for  any  mere  subtle  objection  to  an 
instruction  not  warranted  by  the  substantial  justice  of  the  case. 

Objections  are  also  taken  to  the  refusal  of  the  court  to  give  a 
numijer  of  instructions  asked  by  defendant,  and  to  the  modifica- 
tion of  others  by  the  court.  It  is  seen  the  instructions  for  defend- 
ant are  quite  numerous,  and  state  the  law  very  favorably  to  the  de^ 
fence  sought  to  be  made.  It  may  be  conceded,  as  is  done,  that 
some  of  the  instructions  refused  migbt  have  been  witli  propriety 
given  had  not  others  been  given  containing  substantially  the  same 
proposition.  The  court  was  under  no  duty  to  repeat  the  same 
thing,  although  expressed  in  different  language  and  differently 
formulated.  It  would  have  aided  in  no  pi-oper  way  the  defence 
defendant  was  endeavoring  to  make. 


^d  by  Google 


30  CHICAGO   AND   ALTON   B.  CO.  V.  PILL8BUKT. 

It  18  assigned  for  error  that  the  conrt  permitted  counsel,  in  liU 
•cloeing  argiittient,  to  tnake  staternctits  of  facte  iiot  in  evidence,  to 
tlie  prejudice  of  defendant,  and  to  address  the  juuors  by  name,  and 
to  propound  questions  to  themaiid  receive  answers  to  sucli  ques- 
tions, against  die  objection  of  defendant. 

It  may  be  counsel  indulged  in  intemperate  language,  not  jnsti- 
£ed  by  anytliing  in  tliecase;  but  the  manner  of  conducting  tlie 
*ral  argument  before  the  jury  is  so  much  within  the  diseretion  of 
the  trial  conrt  tliat  this  court  will  hesitate  to  interfere  DiilesB  it 
filiould  appear  manifest  injustice  has  been  done. 

It  is  the  duty  of  the  trial  court  to  require  counsel  to  keep  always 
within  the  iwunds  of  propriety,  and  to  he  mindful  of  the  rights  of 
others  who  are  not  permitted  in  that  presence  to  make  reply. 

The  judgment  of  the  appellate  court  will  be  aflirmed. 

Magbudbb,  J.,  diesentijig:  I  do  not  concur  in  this  decision,  see- 
ing no  reason  for  retreating  from  tiie  views  expressed  in  the  opin- 
■  aon  adopted  by  a  majority  of  the  court  on  the  original  hearing,  but 
whicii  lias  subsequently  been  rejected  upon  the  rehearing.  The 
.opinion  eo  rejected,  with  the  exception  of  a  few  unimportant 
changes,  is  as  follows : 

The  question  presented  by  this  record  is  whether  a  railroad 
company  can  be  held  liable  for  injuries  inflicted  upon  a  passenger 
by  a  mob  which  boards  tlte  train  at  a  legal  stopping  place,  and 
overpowering  the  olBcers  in  control,  makes  an  attack  upon  certain 
of  tlie  passengers,  who  have  incurred  its  ill  will.  ...  In  order  to 
justify  a  recovery  it  must  be  shown  that  appellant  was  guilty  of 
negligence,  and  that  such  negligence  was  the  proximate  cause  of 
.the  injury  to  appellee. 

The  instructions  proceed  upon  the  theory  that  the  taking  of  the 
■non-nnion  men  upon  the  tram  on  the  evening  of  June  1, 1S82, 
was  an  act  of  negligence.  The  jury  were  told,  in  substance,  that 
if  the  cii'cn instil nces  were  such  as  to  lead  a  prudent  man  to  believe 
that  the  presence  of  the  non-union  mbn  upon  the  train  would  pro- 
voke an  attack  !>y  the  strikers,  and  the  iippeJIant  knew  of  such  cir- 
cumstimces,  then  tlie  admission  of  the  non-union  men  into  the  cars 
was  a  violation  of  appellant's  duty  to  its  passengers,  and  the  appel- 
lee was  entitled  to  a  recovery, 

"  Tlie  law  requires  common  carriers  of  passengers  to  take  and 
carry  every  one  who  desires  to  go,  provided  they  have  room,  and 
there  be  no  objection  on  account  of  the  condition,  habits,  chanio- 
ter,  deportment,  or  purposes  of  tiie  passengers."  Galena  &  C.  U. 
K.  Co.  V.  Yarwood.  15  III.  468. 

"The  company  has  no  power  to  adopt  mice  and  regulations 
prohibiting  decently-behaved  persons,  who  will  pay  their  fare  and 
conform  to  all  reasonable  regulations  for  the  safety  and  comfort  of 
passengers,  from  travelling  on  the  road."  Chicago,  B.  &  Q.  B, 
Co.  V.  Bryan,  .90  III.  126. 


^d  by  Google 


PASSBNQEBS — STOPPING  TKAIN  IN   MIDST   OF  A  MOB.      31 

It  ia  the  duty  of  a  railroad  company  "  to  receive  and  carry  all 
persons  as  passengers,  wishing  to  become  such,  provided  tliey  in 
good  faith  offer  to  pay  tlio  iiso:il  f;ire."  Eorer,  II,  It.  p.  961 ;  Ang. 
Car.  §§  52i,  525;  Story,  Bailra.  591.  ' 

It  is  true  that  tlie  rule  here  hud  down  ie  subject  to  certain  qual- 
ifications. There  are  those  whom  the  common  carrier  ia  not  Ijound 
to  carry.  "He  is  not  obliged  to  carry  one  whose  ostensible  pur- 
pose is  to  injure  the  carrier's  business,  one  fleeing  from  justice, 
one  going  npon  a  train  to  assault  a  passenger,  commit  larceny  or 
robbery,  or  for  interfering  witii  the  praper  regulations  of  the  com- 
pany, or  for  gambling  or  committing  any  crime  ;  nor  is  he  bound 
to  carry  a  person  who,  on  account  of  iiis  drunken  condition,  would 
be  obnoxious  to  passengers,  or  one  afEected  with  a  contagious  dis- 
■ease."     Thomp.  Car.  of  Pass.  p.  29. 

Persons  may  be  rejected  "  who  are  known  and  notoriously  bad, 
or  even  justly  suspicious  cltai-acters,  or  persons  offensively  gross 
and  immoral  in  their  conduct,  iiabita,  or  behavior,  ...  or  such  as 
refuse  to  pay  their  fare  or  to  conform  to  the  reasonable  rules  and 
reenlalione  of  the  company."     Rorer,  It.  K.  p.  958, 

The  above  extracts,  based  as  tiiey  are  upon  numerous  adjudi- 
cated cases,  indicate  the  nature  and  ciiaracter  of  the  objections 
which  common  carriers  are  jnstified  in  mnking  to  persons  who  de- 
mand to  be  carried  as  passengei-s.  No  such  objection  existed  in 
the  ease  of  the  thirteen  "  non-union"  laborers  i-eceived  on  its  train 
by  appellant. 

It  is  said  that  these  laborers  had  incurred  the  wrath  of  an  angry 
mob,  and  that  their  presence  on  that  train  invited  the  vengeance 
■of  that  mob.  They  had,  however,  done  nothing  to  deserve  the 
hostile  treatment  exhibited  toward  them.  They  had  agreed  to 
work  for  the  steel  company  upon  being  paid  certain  wages,  and 
were  endeavoring  to  perform  their  agreement.  What  they  were 
doing  was  clearly  permissible  under  the  law.  Wliere  the  employer 
and  employee  make  a  contract  with  each  other,  and  arrange  the 
terms,  satisfactoiy  to  themselves,  npon  which  the  one  shall  receive 
and  the  other  shall  render  eervice,  they  are  acting  strictly  within 
the  limits  of  their  constitntional  rights.  In  this  country  any  man 
has  a  right  to  work  for  whom  he  pleases  upon  any  conditions  that 
he  chooses  to  submit  to,  provided  the  occupation  engaged  in  is  law- 
ful in  its  character.  Any  individual  or  any  organization  which 
assumes  to  interfere  with  the  exercise  of  such  right  infringes  upon 
the  personal  liberty  and  freedom  of  action  which  it  is  the  object 
of  our  institutions  to  seenre  to  every  law  abiding  citizen. 

Id  .the  light  of  these  principles  the  non-union  workmen  were 
committing  no  offense.  They  were  earning  their  liviiiir  in  an  hon- 
est way,  by  legitimate  labor,  in  a  lawful  occupation.  To  hold  that, 
because  they  were  so  doing,  a  common  carrier  was  authorized  to 


^d  by  Google 


32  CHICAGO  AND   ALTON   E.   CO.  V.  PILLBBIIBT. 

refuse  to  give  tliem  pasEaee  over  its  road  wodM  be  to  maiDtaiD  » 

inoTistroua  doctrine,  indeed. 

It  18  true  that  tlie  "Ore  Shoveiers'  Union,"  a  labor  organization, 
ontBJde  of  and  unknown  to  tlie  law,  cliOBe  to  take  offence  at  their  con- 
duct and  to  piirsue  them  witli  unnatural  violence,  Bnt  we  are  not 
prepared  to  bold  that  a  common  carrier  will  be  justified  in  refiieing 
to  receive  a  pereon,  aa  a  passenger  in  its  eonvevanee,  simply  because 
that  person's  exercise  of  his  lawful  rights  has  become  offensive  to 
bis  tinreasoningiieiglibora,  and  provoltes  from  sucli  neigiibors  nn- 
reusonable  demonstrations  of  hostility  against  his  pei-son.  Suppose 
that  the  appellee,  who  is  a  judge  of  one  of  the  appellate  courts  of 
this  State,  liad,  by  his  declaration  of  the  law  upon  some  public 
question,  stirred  np  such  a  feeling  of  hostility  toward  himself 
among  a  certain  class  of  persons  along  the  line  of  the  railroad 
over  which  he  was  obliged  to  travel  from  his  home  to  the  place 
where  liis  court  held  its  seBsions,  that  he  was  in  danger  of  mob 
violence,  and  that,  upon  his  application  to  be  received  as  &  passen- 
ger, the  railroad  company  haa  declined  to  admit  him  npon  its 
train,  on  the  gionnd  that  Iris  presence  there  might  provoke  an  at- 
tack at  some  point  of  the  road,  and  so  cause  injury  to  the  passen- 
gers. Would  the  company  be  justified  in  tluis  preventing  him 
from  going  to  the  performance  of  his  official  duties?  We  see  no 
difference  between  the  case  supposed  and  the  case  presented  by  the 
record.  The  law  is  no  respecter  of  persons.  Its  glory  is  that  it 
extends  its  protecting  hand  as  well  to  the  lowly  workman  as  to 
the  learned  judge. 

Each  one  of  these  thirteen  "non-union"  laborers,  soiled  with 
ore  dnat  from  the  docks,  yet  willing  to  comply  witii  the  reasonable- 
regulation  wliich  required  him  to  take  his  seat  in  tlie  smoking-car 
rather  than  in  either  of  the  passenger  coaches,  was  as  much  entitled 
as  was  appellee  to  demand  of  a  carrier,  holding  its  franchises  at 
the  hands  of  the  State  for  the  benefit  of  the  whole  public,  a  safe- 
passage,  at  the  cioee  of  his  day's  labor,  to  his  home  and  his  family. 

Hence,  it  was  no  less  the  dnty  of  the  railroad  company  to  take 
the  thirteen  laborers  on  the  train  than  to  take  the  appellee  thereon. 
Apj>eliant  was  not  obliged  to  neglect  its  dnty  to  the  one  because 
the  peiformance  of  tliat  dnty  might,  in  some  remote  and  uncertain 
degree,  result  in  harm  to  the  other.  It  is  not  contended,  nor  is 
there  a  particle  of  evidence  to  show,  that  the  appellant  had  any 
notice  that  this  attack  would  be  made  on  its  train,  either  at  the 
place  where  it  was  made  or  at  any  other  point  on  its  road.  Labor- 
el's  had  lieen  bronght  up  from  Joliet  to  Chicago  in  the  morning,  and 
retnrned  to  Joliet  in  the  evening,  prior  to  June  1,  1882;  but  the 
"strikers"  had  made  no  attack,  before  this  particular  day,  upon 
any  paAsenger  train.  They  laid  tiieir  plans  with  rare  cunning  and 
secrecy  .  .  .  Instructions  must  be  based  upon  the  evidence.  If 
it  is  left  to  the  jury  to  determine  whether  or  not  a  prudent  man 


^d  by  Google 


PASSEMOERS — STOPPING  TRAIN   IN   MIDST   OP  A  MOB.      33 

would  di'aw  certain  concliisione  from  certain  circnmstances,  it  must 
at  least  appear  tiiat  there  was  some  reasonable  and  natural  relation 
between  the  circiimBtancea  existing  and  the  conclusions  to  be  drawn 
from  them.  No  prudeiit  man,  even  in  the  exercise  of  that  high 
degree  of  care  which  the  law  imposes  upon  the  carrier  of  passen- 
gers, could  be  expected  to  foresee  or  anticipate  that  the  animosity 
of  niiion  toward  non-union  laborers  would  lead  to  Bucli  a  wanton 
and  liendish  attack  as  is  shown  by  this  record  to  have  been  made 
in  a  civilized  city,  and  under  a  government  of  law,  upon  a  train 
full  of  peaceable  and  orderly  passengers. 

The  third  instrnction  given  for  the  appellee  told  the  jury  that 
the  appellant  could  not  jtistify  the  admission  of  the  non-union 
laborers  into  the  train  "on  the  ground  that  the  defendant  had 
issued  to  the  foreman  of  siiid  laborers  a  ticket  on  which  they  were 
carried  on  said  train."  We  think  that  this  instrnction  was  calcn- 
lat«d,  under  the  circumstances  of  this  case,  to  make  a  wrong  im> 
pression  upon  the  minds  of  the  jnry.  It  seems  to  intimate  that 
the  obligations  of  appellant  to  the  laborers  would  bo  less  binding, 
in  a  case  where  their  common  employer  paid  for  the  passage  of  all 
of  them,  and  purchased  one  ticket  for  them  all,  than  such  obliga- 
tions would  be  in  a  case  where  each  laborer  paid  his  own  fare  and 
bought  his  own  ticket.  We  know  of  no  authority  and  can  see  no 
reiison  for  any  such  distinction.  Whatever  rights  and  privileges 
would  inure  to  the  benefit  of  the  laborers  by  reason  of  their  fare 
being  paid  would  so  inure  whether  such  fare  was  paid  by  them- 
selves  or  by  the  steel  company  wliich  employed  them. 

It  is  further  claimed  that  there  was  no  regular  passenger  station 
at  the  ore  docks,  and  that,  for  this  reason,  appellant  whs  not  obliged 
to  stop  thera  and  take  on  the  thirteen  workmen.  Even  if  it  was 
not  obliged  to  stop,  it  will  not  be  denied  that  it  had  the  right  to 
stop.  And  it  is  a  matter  of  serious  doubt  wiiether  the  industries 
of  a  great  commercial  centre,  or  the  earners  and  other  agencies 
which  minister  to  and  aid  in  their  operation,  are  hound  to  suspend 
the  exei-cise  of  their  legal  rights,  or  cease  tlie  tranEaction  of  their 
lawful  businesfl,  siinuly  because  there  exists  some  disturbance  In 
the  community  whicii  the  officers  of  the  law,  either  through  un- 
willingness or  inefficiency,  fail,  for  the  time  being,  to  successfully 
quell. 

But,  independently  of  this  consideration,  the  undisputed  proof 
shows  that  the  gateway  of  the  dock-yards  was  just  south  of  the 
river,  while  right  across  the  bridge,  on  the  north  side  of  the  river, 
was  the  regular  Bridgeport  station  ;  that,  some  weeks  before  June 
1,  1882,  the  steel  company  had  made  an  arrangement  with  appel- 
lant by  which  the  latter  agreed  to  let  oS  and  take  on  the  laborers 
at  the  docks,  rather  than  at  the  station,  because  the  men  would  be 
in  danger  of  being  injured  by  the  mob  if  compelled  to  walk  from 
the  one  place  to  the  other  across  the  bridge ;  that  the  taking  on  of 
81  A.  *  E.  R  Cm.— 8 


^d  by  Google 


'M  ciii(;ago  and  altom"  r.  oo.  v.  pillsbubt. 

tile  thirteen  workmen  on  June  1,  1882,  was  merely  one  act  in  the 
performance  of  a  previoiie  contract  between  the  appellant  and  the 
steel  company,  bv  the  terma  of  which  appellant  was  to  bring  men 
from  Johet,  and  return  them  to  Juliet,  on  each  and  every  day 
wlien  their  services  were  needed  at  the  docks.  The  eighty-fiftli 
section  of  the  Railroad  Act  provides  tli:iC  railioad  compiinies  shall 
receive  and  deliver  passengers  "at  tiieir  regular  or  appointed  time 
and  place."  The  eighty-eighth  section  provides  that  trains  shall 
stop  a  certain  length  of  time  "at  each  station  advertised  ...  as 
a  place  for  receiving  and  discharging  passengers."  Hind,  Rev. 
Stat.  1886,  pp.  944,  945.  These  sections  are  merely  declaratory 
of  a  genera]  rule  of  the  common  law  that,  where  a  common  carrier 
advertises  that  it  will  stop  at  certain  reguhir  and  appointed  stations, 
such  advertisement  constitiites  a  special  contract  between  it  and 
tile  public  that  it  will  so  stop.  Ang.  Car.  §  527  a.  Hence  obliga- 
tion to  stop  at  a  regular  passenger  station  rests  npon  the  basis  of 
contract.  In  the  case  at  oar  the  duty  of  the  appellant  to  stop  at 
the  docks  did  not  grow  ont  of  a  contract  to  be  implied  from  its 
appointment  and  advertisement  of  the  docks  as  a  regular  station, 
bnt  it  did  grow  out  of  an  equally  binding  contract,  actually  entered 
into  before  that  time,  as  above  stated,  between  appellant  and  the 
steel  company. 

It  is  to  be  observed  also  that  this  contract  was  made  for  the  ben- 
efit as  well  of  tlie  "  non-union"  laborers  as  of  the  steel  company. 
When  appellant  brought  the  men  from  Joliet  on  the  morning  of 
June  1,  it  lauded  them  at  the  docks  with  the  distinct  understand- 
ing that  the  train  was  to  stop  for  them  in  the  evening  and  take 
them  home.  To  have  refused  to  receive  them  on  board  in  the 
evening  would  have  been  to  leave  them  to  the  tender  mercies  of 
the  moo  during  the  night.  Tiiis  would  have  been  not  only  a  vio- 
lation of  the  contract,  but  an  unmitigated  cruelty. 

The  instrnctions  given  to  the  jury  on  behalf  of  the  appellee,  bv 
the  trial  court,  kept  entirely  out  of  view  the  obligations  wliicli 
were  imposed  upon  appellant  by  i-eaeon  of  the  previous  arrange- 
ments for  the  carriage  of  the  worlvinen,  so  made  lietween  it  and 
the  steel  company.  Tliey  also  ignored  and  kept  out  of  view  the 
obligations  wliich  appellant  was  under  to  take  the  laborers  away 
from  the  docks  at  the  close  of  the  day,  by  reason  of  having  carried 
them  to  the  docks  at  the  beginning  of  the  day.  These  instructions 
simply  presented  to  the  jury  the  naked  question  whether  it  was 
right  or  not  for  appellant  to  stop  at  the  docks  and  take  on  the 
laborers  on  that  particular  evening,  without  reference  to  the  bind- 
ing force  of  the  existing  contract  on  the  subject,  and  without  ref- 
erence to  the  binding  force  of  appellant's  previous  conduct  toward 
the  laborers  themselves-     They  were  therefore  erroneous.    . 

It  is,  however,  contended  that  if  appellant  was  bound  to  take  the 
**  non-union  "  men  on  board,  it  should  have  provided  a  sofiicient 


d.vCoogIc 


PASSENOEBS — STOPPING  TRAIN  IN   MIDST  OF  A  MOB.      35 

force  to  protect  tliem  a^inet  the  dangers  which  were  likely  to  arise 
aiider  the  cii'cumsCaiices.  It  is  true  tliat  the  one  liundrdiJ  and  fifth 
section  of  tlie  milroad  law  of  tliis  State  provides  tliat  conductors 
of  raih'oad  trains  "sliali  be  invested  with  police  powei-s  wiiile  on 
duty  on  tlieir  respective  trains."  Hurd,  Rev.  Stat.  1835,  p.  948. 
But  the  object  of  this  pivavision  was  merely  to  clothe  sucli  conduct- 
ore  with  the  authority  to  keep  order  among  their  passengei's. 
This  abundantly  appears  from  the  language  of  the  hundred  and 
sixth  and  hundred  and  seventh  sections,  wltich  authorize  conduct- 
ors to  remove  disorderly  passengers,  and  to  call  on  tJie  other  em- 
ployees of  the  train  and  the  otiier  passengers  to  aid  tijem  in  such 
removal,  and  wliicii  also  authorize  a  conductor  to  aiTest  any  pcrsDn 
committing  a  crime  on  tlie  train.  It  was  never  the  intention  of 
the  sbitute  to  require  riiihoad  companies  to  carry  a  force  large 
«tiougli  to  repel  tlie  attack  of  an  outside  mob. 

In  this  case  tlie  testimony  tends  to  show  that  the  strikers  who 
made  tlie  attack  consisted  of  between  100  and  200  men.  The 
officers  in  control  of  the  train  were  unable  to  do  anything  against 
finch  a  force,  and  were  overpowered. 

The  duty  of  protecting  tlie  citizens  of  the  State  against  so  large 
a  body  of  rioters  as  is  here  referred  to  rests  upon  the  civil  author- 
ities, and  not  npon  the  railroad  corporations.  To  impose  such  a 
duty  npon  the  latter  would  be  to  clothe  thera  with  apart  of  the 
functions  of  the  government  itself. 

In  Pittsburgh,  Ft.  W.  &  0.  R.  Co.  v.  Hinde,  53  Pa.  512,  the 
Supreme  Court  of  Pennsylvaniii  says;  "The  case  is  that  of  a  mob 
rnsliing  with  such  violence  and  in  such  numbers  upon  the  cars  as 
to  overwhelm  the  conductor  as  well  as  the  passengers.  It  ia  not 
the  duty  of  railroad  companies  to  furnish  their  trains  with  a  police 
force  adequate  to  such  emergencies.  They  are  bound  to  furnish 
men  enough  for  the  ordinary  demands  of  transportation,  but  they 
are  not  hound  to  anticipate  or  provide  for  such  an  unusual  occur- 
rence as  that  under  consideration." 

The  doctrine  here  announced  in  the  Pennsylvania  case  was  ap- 
proved and  endorsed  by  the  Supreme  Court  of  Massachusetts, 
speaking  tiuough  Mr.  Justice  Gray,  in  Simmons  v.  New  Bedford, 
V.  &  N.  S.  Co.  97  Maes.  361. 

Rorer,  in  his  work  on  Railroads,  at  page  1105,  says:  "A  rail- 
road company  is  not  liable,  in  an  action  at  the  suit  of  a  passenger, 
for  injuries  i-eeeived  by  mob  violence  in  thecourseof  his  transporta- 
tion on  its  care,  if  without  the  power  of  the  company  to  prevent 
the  same.  The  duties  of  railroad  companies,  as  carriers,  do  not  in- 
clude the  obligation  of  providing  and  carying  a  police  force  or 
guard  sufficient  to  suppress  mobs  who  intrude  into  tlie  cai-e." 

To  the  same  effect  is  Shearman  &  Redfield  on  Negligence,  §  278  b. 

Tested   by  the  principles  here  laid  down,  the  first  instruction 


^d  by  Google 


36  OINOINSATI,  HAMILTON,  ETC.,  R.  00.  V.  CABPEB. 

^ven  for  appellee  was  erroneous.  It  directed  tlie  attention  of  the 
jury  to  the  negligence  of  the  defendant, "  as  alleged  in  tlie  decl&ra- 
tion."  One  count  of  the  declamtion  alleges  that  appellant  was 
guilty  of  negligence  because  it  "  failed  and  neglected  to  provide  a 
enfficient  force  ...  to  protect  the  said  train  fi-om  attack  by  said 
striking  workmen." 

Sheldon,  Oh.  J. :  I  concur  in  the  dieeenting  opinion  of  Mr.  Jus- 
tice Magruder. 

See  36  £d^.  A  Am.  R.  B.  Cas.  241  and  note,  where  the  deddm  on  the 
original  hearing  In  this  case,  which  is  now  renraed,  la  reported. 


Omamsi.Ti,  Kahiltoit  add  Indiaitapolib  B.  Oo.,  Appt, 

V. 

Oakpeb,  Admr. 
{Adeatue  Ctue,  Indiana.     October  11,  18B7.) 

One  who  puTchasea  a  ticket  over  a  railroad,  and  by  raiitake  takes  pas- 
sage on  the  wrong  train,  IB  a  passenger  while  on  the  train;  and  a  bi^h  degree 
of  practicable  care  is  to  be  exercised  to  protect  him  from  injury.  Where  the 
directions  of  a.  conductor  are  within  the  scope  of  his  authority,  and  obedience 
to  them  will  not  expose  a  passeDger  to  a  known  or  to  apparent  danger  which 
a  prudent  man  would  not  incur,  obedience  b;  the  paesenger  is  not  contribu- 
tory negligence,  although  it  may  result  in  bringing  injury  upon  him;  but  he 
cannnt  rely  on  the  judgment  of  the  conductor  where  it  would  expose  him  to 
a  risk  that  a  reasonably  prudent  man  would  not  a!«ume. 

A.  conductor,  as  the  representative  of  a  nulroad  company,  has  neither 
actual  nor  oatensible  authority  to  instruct  one  who,  holding  a  ticket  upon 
the  railroad,  has  by  mistake  entered  the  wrong  train,  and  who,  in  accordance 
with  his  advice,  leaves  the  train,  as  to  what  path  or  road  he  should  walk  to 
reach  a  distant  station,  to  secure  a  place  upon  the  proper  train  on  the  same 
road,  proceeding  in  &  contrary  direction;  and  the  railroad  company  is  not 
responsible  for  the  accidental  killiog,  by  a  passing  train,  of  such  person  while 
upon  its  track  in  pursuance  of  such  instructioo. 

Appeal  by  defendant  from  a  judgment  of  the  Fayette  circuit 
court  ill  favor  of  plaintiff  in  an  action  for  death  of  decedent  from 
negligence.     Reversed. 

The  facts  are  stated  in  the  opinion. 

S.  D.  MarskaU  for  appellant. 

Claypool  <&  Son  and  thmcaaiy  Smith  ds  WUson  for  appellee. 

Elliott,  J. — The  complaint  of  the  appellee  alleges  that  his  intes- 
FxfTTB.  tate  bought  a  ticket  at  Connoreville,  entitling  bim  to  a 

the  appellant's  trains  to   Cincinnati,  Ohio ;  that  his 


^d  by  Google 


conductob's  dikkction"8  to  passenger,  37 

intestate  was  a  stranger  in  Connoi-STiiie,  nnacqiiaiitted  vith  the 
points  of  the  compass  at  that  city;  that,  on  the  day  he  pnrcliased 
bin  ticket,  he  went  to  the  appellant's  depot,  intending  to  lake  pas- 
«ago  on  ite  east-hound  train,  which,  according  to  ecliedule  time, 
passed  Connoraville  at  8.47  p.h.  ;  tliat  tiie  east  and  west  bonnd 
trains  usually  passed  at  tliat  liour  at  Connorsville ;  that  the  niglit 
on  which  the  appellee's  intestate  intended  to  take  passage  was  dark ; 
that,  at  a  short  distance  to  the  west  of  appellant's  station,  tlte  track 
passed  over  a  highway  and  canal  npon  an  elevated  trestlework 
several  hundred  feet  in  length  ;  tliat  at  a  short  distance  west  of  the 
trestlework  there  was  a  switch  known  as  Salter's  switch  ;  that,  on 
the  night  on  which  the  intestate  intended  to  take  passage  for  the 
east,  the  train  from  the  west  was  beliind  time,  and  was  ordered  to 
wait  at  Salter's  switch  for  the  train  from  the  east ;  that  tJie  latter 
train  was  ordered  to  move  forward  and  pass  at  that  point ;  tiiat 
the  conductor  of  that  train  had  notice  of  tliese  orders ;  tliat,  on  the 
the  arrival  of  the  train  fi-om  the  east,  tJie  intestate,  supposing  it  to 
be  the  easUl>ound  train,  entered  it,  and  immediately  tiiereafter  it 
departed;  that,  shortly  after  tJie  departnre  of  the  train,  tlie  con- 
ductor informed  him  that  he  was  on  the  wrong  train,  and  stopped 
the  train  a  short  distance  west  of  tlie  trestlework  which  spanned 
the  canal  and  highway;  that  he  "carelessly  and  negligently 
directed  the  deceased  to  get  off  and  at  once  to  walk  back  over  the 
railroad  track  to  Connorsville,  informing  him  that  if  he,  tiie 
deceased,  did  so,  he  would  reach  the  station  in  time  to  take  pas- 
sage on  the  east-bound  train ;  that  at  the  time  the  conductor  give 
these  directions,  he  knew  of  the  existence  of  the  trestlework  and 
that  the  east-bonnd  train  would,  in  a  very  few  minutes,  pass  over 
that  part  of  the  track  lying  between  the  place  where  the  deceased 
was  directed  to  leave  the  train  and  the  station  at  Connorsville ; 
that  tliere  was  no  highway  or  foot  passage  between  tJiose  points 
by  which  the  deceased  could  return  to  the  station,  except  by  pass- 
ing along  the  railroad  track ;  that  the  deceased  was  ignoi-ant  of  the 
existence  of  the  trestlework,  and  of  the  fact  that  the  east-bound 
train  would  soon  pass  over  the  trestlework ;  that  the  deceased 
undertook  to  obey  the  directions  of  tlie  conductor,  and,  witliout 
fault  or  negligence  on  his  part,  was  struck  and  killed  while  walking 
along  tlie  track  built  upon  the  trestlework,  on  his  way  to  the  sta* 
tion  at  Connorsville. 

Wiiere  a  person  lias  bought  a  ticket  over  a  railroad, 
and,  by  mistake,  takes  passage  on  the  wrong  train,  he  is  r 
a  passenger  so  far  as  to  entitle  him  to  protection  against 
the  negligence  of  the  company.  Columbus,  0.  &  I.  C.  R.  Co.  v. 
Powell,  40  Ind.  37;  International  R.  Co.  v.  Gilbert,  22  Am.  & 
Eng.  B.  R.  Caa.  405  ;  Railway  Accident  Law,  215  ;  2  Wood.  E.  L. 
1047.     The  deceased  was  therefore  entitled  to  be  treated  as  a  pas- 


^dbyGoOglc 


88  CINCINNATI,  HAMILTON,  ETC.,  R.  CO.  V.  CARPEE. 

Benj^er  while  on  the  train,  and  a  high  degree  of  practicable  care  to 
protect  him  from  iiijurj  was  dne  to  him  from  the  carrier. 

Wliere  the  directioiie  of  the  conductor  are  within  the  scope  of 
Diucnon  or  ''i^  authority,  and  obedience  to  them  will  not  expose  a 
ooiiDDoioi.  passenger  to  known  or  to  apparent  danger  which  a 
prndent  man  would  not  incur,  obedience  by  the  passenger  is  not 
coiitribnlory  negligence,  altliongb  it  may  result  in  bringing  injury 
lipon  him.  In  Poo]  v.  Chicago  M.  &  St.  P.  11.  Co.,  53  Wis.  657; 
B.  c,  56  Wis,  227,  the  doctrine  was  stated  somewhat  more  broadly, 
and  it  waa  eaid,  in  Epeaking  of  the  paesenger :  "  He  relied — and 
we  think  iie  had  a  right  Co  rely — on  the  judgment  of  the  person  in 
charge  of  the  car,  preeuming  that  by  following  his  directions  in 
the  matter  lie  wonld  not  expose  himself  to  any  unnecessary  or 
nnnsnal  peril." 

It  WAS  lield  in  Hanson  v.  Mansfield  R.  &  TrnnBp.  Co.,  38  La. 
Ann.  Ill ;  s.  c.  58  Am.  Kep.  162,  that  one  who  rides  on  tiie  loco- 
motive under  tiie  direction  of  the  "  engitieer-conductoi-"  is  not 
guilty  of  contributory  negligence,  and  the  court  said :  "  It  has 
also  been  fi-equentty  held  that  taking  an  unnsnal  place  on  a  train, 
which  ordinarily  might  be  considered  conlribntory  negligence, 
cannot  be  so  regarded  when  the  place  is  occupied  by  tlie  direction 
or  permission  of  the  condnctor."  We  cannot  concur  in  this 
extreme  view  of  the  law.  Our  conclusion  is  that  a  passenger  may 
safely  rely  on  the  judgment  of  those  placed  in  charge  of  the  train, 
wliere  it  is  not  plainly  open  to  his  observation  that  reliance  will 
expose  him  to  danger  tliat  a.  pnident  man  woald  not  incur,  bnt 
that  he  cannot  rely  on  their  judgment  where  it  wonld  expose  hira 
to  a  risk  that  a  reasonably  prudent  man  wonld  not  assume.  An 
American  author  says  :  "If  the  danger  is  obvious,  and  such  as  a 
reasonable  man  wonld  not  have  incurred,  the  passenger  nmst  not 
assinne  the  risk."  3  Wood.  R.  L.  1121.  It  was  said  by  this  court 
in  Louisville  &  N.  R.  Co.  v.  Kelly,  92  Ind.  371 ;  s.  c,  47  Am.  Rep. 
149,  that  "our  own  cases  hold  that  passengers  are  warranted  in 
oheying  the  directions  of  the  agents  .ind  servants  of  the  carrier, 
unh-ss  siicli  obedience  leads  to  known  danger  which  a  prudent  man 
wonld  not  encounter."  This  doctrine  is  supported  by  our  own  cases 
and  by  the  great  weight  of  authority.  Jeffersonville  R.  Co.  1). 
Swift,  26  Ind.  459;  Pennsvlvania  Co.  v.  Hoaglarid,  78  Ind.  203; 
Litke  EHe  &  W.  U.  Go.  v.  I'ix,  88  Ind.  381 ;  s.  c;  45  Am.  Rep.  464 ; 
Turre  Haute  &  I.  R.  Co.  v.  Bnck,  96  Ind.  346 ;  Filer  v.  New  York 
Cunt.  R.  Co..  49  N.  Y.  47;  Filer  v.  New  York  Ceiit.  R.  Co.,  69 
N.  Y.  351 ;  St.  Louis.  I.  M.  &  S.  R.  Co.  v.  Cantrell,  87  Ark.  519; 
s.  c,  40  Am.  Rep.  105 ;  Fowler  v.  Baltimore  &  O.  R.  Co..  18  W. 
Vii.  579 ;  Hickey  v.  Boston  &  L.  R.  Co.,  14  Allen,  429  ;  Pennsyl- 
vania R.  Co.  V.  Aspeil,  23  I'a.  147 ;  s.  c,  82  Am.  Dec.  323 ;  Phila- 
delpbia  &  R.  R.  Co.  v.  Boyer,  97  Pa.  91 ;  Indianapolis  &  St.  L.  R. 


^d  by  Google 


OONDUOTOll'd   DIEECTI0N8   TO   P-\S3ENOER.  31) 

Co.  V.  Horet,  93  U.  S.  291 ;  St.  Louis  Co.  v.  Piereon,  4  S.  W. 
Rep.  755 ;  Beach,  Contrib.  Neg.  72 ;  3  Wood,  R,  L.  1121 ;  Hntcli. 
Carr.  §  535. 

Under  the  rale  we  hare  stated,  the  deceased  cannot  be  coneid- 
ered  sniltj  of  contribntoiy  negligence  upon  the  case  made  by  the 
ooniplamt,  for  it  is  avetred  that  lie  was  ignorant  of  the  danger  to 
wliich  the  directions  of  the  conductor  esposed  him,  and  was  free 
froiQ  fault  and  negligence.  As  he  was  free  from  fault  and 
ignorant  of  danger,  and  as  the  danger  was  not  open  to  bis  obsei-va- 
tion,  he  cannot  be  regarded  as  having  done  what  a  reasonably 
prudent  man  would  not  have  done  in  reljing  upon  the  directions 
of  tlie  appellant's  conductor,  if  the  directions  we.re  given  hy  the 
conductor  while  acting  within  the  line  of  his  duty. 

We  come  now  to  a  question  of  much  more  difliculty,  and  that  is, 
Were  the  directions  of  the  conductor  given  while  coimtrcTOB-a 
acting  within  the  scope  of  his  authority?  It  is  an  ■'tiiHowii. 
elementary  rule  that  a  principal  is  not  bound  by  tiie  acts  of  his 
agent  unlesa  tliey  are  performed  within  the  scope  of  the  authority 
actually  or  ostensibly  eonferi'ed  upon  him.  This  rnle  applies,  of 
coarse,  to  railroad  corporations  as  well  as.  to  natural  persons. 
Bailway  Accident  Law,  99. 

The  conductor  of  a  passenger  train  is  undoubtedly  clothed  with 
extensive  authority.  In  discnssing  this  subject  Chief  Justice  Eyan 
Baid:  "Indeed,  as  that  fictitious  entity,  the  corporation,  can  only 
act  through  natural  pei'sons,  its  officera  and  servants,  and  as  it,  of 
Deceasity,  commits  its  trains  absolutely  to  the  clmrge  of  officers  of 
its  own  appointment,  and  paasengere  of  necessity  commit  to  them 
tlieir  safety  and  comfort  in  transitu,  under  circumstances  of 
such  peril  and  subordination,  we  are  disposed  to  hold  that  the 
^hole  power  of  the  corporation,  pro  hac  vice,  is  vested  in  these 
officers,  and  that,  as  to  the  passengct-s  on  board,  they  are  to  he 
considered  as  the  corporation  itself,"  Bass  v.  Chicago  &  N.  W. 
R.  Co.,  20  Wis.  450.  Speaking  for  the  court,  Campbell,  J.,  said 
of  the  condnctor  and  the  company:  "He  represents  them  in  the 
whole  management  of  his  train."  It  was  also  said,  "  He  occupies 
the  same  position  as  the  master  of  a  ship."  ■  Great  Western  E.  Co. 
V.  Miller,  19  Midi.  305. 

In  Chicago,  Milwaukee  <fe  St.  Paul  R.  Co.  v.  Ross,  112  U.  S. 
377,  the  court  declared  tJiat  the  conductor  represents  the  corporar 
lion, -and  said:  "If  such  a  conductor  does  not  represent  the  com- 
]>iiny,  then  the  train  is  operated  without  any  representative  of  its 
owner."    ^ 

Discussing  the  general  subject,  the  Snpreme  Ooart  of  Pennsyl- 
vania said  :  *'  And  wherever  tliere  are  no  prescript  rnles,  the  usage 
or  common  law  of  railroads  makes  the  conductor  the  responsiole 
agent  in  the  conduct  of  the  train.     It  is  of  the  last  importance  to 


^d  by  Google 


40  CINCINNATI,  HAMILTON,  ETC.,  R.  CO.  V.  CABPEE. 

all  interests,  both  public  and  private,  tliat  tlie  law  slionld  define 
with  precision  to  wiiom  the  custody  and  reeponBibility  of  a  train 
uf  cars  attaches.  We  hold  that,  from  the  beginning  to  the  end  of 
the  trip,  wliatever  the  motive  power  employed,  tlie  cotidnctor,  and 
nolK)dy  else,  is  the  responsible  piirty  in  poBsession  of  tlie  train." 
Hiiuch  V.  Lioyd,  31  Pa.  358.  Tiiere  are  many  jiutliorities  which 
assert  doctrines  Bnbst:iiitial!y  the  same  as  those  declared  in  the 
cases  from  wliich  we  have  quoted.  Cohimbus,  C.  &  I.  K.  Co.  v. 
Powell.  40  Ind.  37;  Terre  Haute  &  I.  R  Co.  v.  McMmray.  98 
Ind.  358 ;  1  Wood,  R.  L.  449,  and  cases  cited ;  Tlionip.  Carr.  369. 
But  broad  as  the  unthon'ty  of  the  cotidiictoi-  is,  it  ie  by  no  means 
unlimited ;  on  the  coiitniry,  it  is  limited  to  tiie  management  and 
control  of  the  train  conniiitted  to  his  care. 

He  lias  authority  to  control  the  train  in  its  movements,  and  it  is 
his  duty  to  take  measni'es  to  preserve  passena:er9  from  injury  while 
fie t ting  on  the  train,  while  tlieyareon  it,  and  while  tliey  are  aliglit- 
ing.  In  the  dischai^e  of  this  duty  he  must,  as  the  representative 
of  the  company,  exei-eise  a  high  degree  of  caio  and  diligence ;  but, 
wltenthe  relation  of  cari'ierand  passenger  terminates,  the  authority 
of  the  conductor  as  tlie  representative  of  the  carrier  ia  at  nn  end. 

His  authority  ceased  when  tlie  passenger  has  safely  alighted  from 
the  train.  The  company  does  not  vest  him  with  either  appai'ent 
or  actual  authority  beyond  such  as  is  necessary  for  the  proper  care 
of  the  person  and  property  placed  in  hischarge  and  control.  When 
the  person  who  entered  as  a  passenger  has  finally  left  the  train,  the 
conductor  no  longer  stands  to  him  as  the  representative  of  the 


His  representative  character  does  not  extend  to  acts  done  after 
the  relation  of  passenger  and  carrier  has  been  severed.  It  is  his 
duty  to  afford  the  passengers  whom  he  directs  to  leave  his  train  a 
safe  alighting-place ;  but  lie  is  not  bound,  as  the  representative  of 
the  company,  to  look  after  tlie  passenger  after  he  has  left  the  train. 

It  may  be  that  where  a  passenger  leaves  a  train,  and,  in  making 
his  way  from  the  station,  is  injured  by  the  negligence  of  other  serv- 
ants, the  company  is  liable.  Iiijioff  v.  Ciiicago  &  M.  H.  Co.,  22 
Wis.  682;  Gaynor  v.  Old  Colony  &  N.  R.,  IpO  Mass.  208;  In- 
diana Cent.  R.  Co.  V.  Hiidelson,  13  Ind.  326. 

But  even  in  such  a  case  it  is  doubtful  wliether  the  liability  is 
that  of  a  carrier  to  a  passenger.  If,  however,  it  were  conceded 
that  the  liability  is  of  that  character,  still  the  concession  would  not 
avail  the  appellee  ;  for  the  question  here  is,  not  what  other  agents 
of  the  company  did ;  the  question  is,  Wliat  was  done  by  tlie  con- 
ductor, and  was  it  within  the  scope  of  his  authority  i  If  tiie  con- 
ductor liad  autiiority  to  give  the  deceased  directions  as  to  the  courso 
he  should  pursue  after  he  left  the  train,  then,  upon  the  facts  al- 
leged la  the  complaint,  the  appellant  may  perhaps  be  liable;  but, 


^d  by  Google 


conductor's   directions  to  PAS8ENGEB.  41 

if  ttie  condnctoi'  liad  no  antliority  to  give  sncli  directions,  tlicn 
there  can  be  no  liability  on  tbe  part  of  tlie  appellant.  It  ie  not  for 
the  negligence  of  any  otber  of  tlie  appellant's  Bcrvants  tliat  a  re- 
covery is  souglit ;  for  tbe  negligence  oi  tbe  condnctor  is  stated  as 
the  Bole  canse  of  action  ;  ano,  for  tbat  negligence,  the  appellant  is 
not  liable  nnless  be  was,  at  tbe  lime,  acting  as  its  iigeiit  and  witliin 
tbe  line  of  bis  duty.  Our  judgment  upon  this  point  is  tbat,  wbere 
a  passenger  enters  a  wrong  train  tbrongli  a  mistake  of  bis  own,  tbe 
antbority  of  the  conductor,  as  the  representative  of  tbe  carrier, 
terniinaces  when  a  safe  aligbting-place  is  provided  and  tbe  passen- 
ger has  left  the  train  in  safety;  and  tbat  it  does  not  extend  so  far 
as  to  anthorize  tbe  conductor  to  dii-ect  the  passenger  what  course  he 
shall  pnrsne  after  leaving  tbe  train.  If  tlie  conductor  had  directed 
the  deceased  to  walk  ten  or  twenty  miles  it  would  hardly  be  con- 
tended that  the  corporation  was  responsible  for  such  a  direction ; 
and  we  cannot  perceive  tbat  tbe  principle  is  different  whether  tbe 
distunee  be  long  or  short.  A  passenger  has  no  right  to  assume 
that  the  carrier  bas  invested  tbe  conductor  with  authority  to  direct 
biin  to  travel  back  to  a  station  wbere  he  entered  a  train  by  mistake, 
for  the  conductor  ie  neither  actually  nor  ostensibly  clothed  with 
any  sneh  antbority.     If  the  conductor  bad  directed  ibe  deceased  to 

£0  to  a  hotel,  or  bad  directed  birn  to  walk  back  upon  a  wngon  roiid, 
e  certainly  would  not  have  been  actii-g  in  the  line  of  his  duty,  and 
we  cannot  discern  any  difference  between  such  cases  and  tbe  one 
under  examination  ;  for  the  direction  to  ga  bnck  upon  tbe  track 
cannot  change  the  legal  features  of  tbe  case.  If  the  condnetor  bad 
refused  to  carry  the  deceased  to  a  regular  station,  or  bad  compelled 
liira  to  leave  the  train,  an  essentially  different  question  would  have 
faced  us ;  but  here  the  passenger  left  the  train  without  compulsion, 
and  nndeitook  to  rectify  his  mistake  by  making  bis  way  back  to 
the  station,  so  that  the  case  turns  upon  tbe  question  whether  the 
instrncCions  given  by  tbe  conductor,  as  to  tbe  course  the  deceased 
fihoold  pursue  after  leaving  tbe  train,  were  within  the  line  of  his 
dnty.  It  is  not  the  tlieory  of  the  complaint  that  the  conductor  pnt 
the  deceased  off  tbe  train  at  an  improper  place;  tbe  case  is  not, 
therefore,  controlled  by  the  authorities  upon  that  general  subject. 
Nor  is  tbe  theory  of  the  complaint  tbat  the  conductor  was  guilty 
of  negligence  in  directing  tbe  deceased  to  alight  at  an  unsafe  place ; 
BO  that  clie  case  is  entirely  unlike  tbat  of  a  conductor  directing  a 
passenger  to  step  from  one  train  to  another,  or  to  alight  upon  a 
aefective  or  unsafe^  platform.  The  classes  of  cases  mentioned  and 
their  kindred  are  therefore  excluded  from  our  consideration  and 
decision. 

Conusel  for  the  appellee  dispose  of  the  question  whether  the  di- 
rection to  the  inteetato  to  walk  back  to  the  station  was  within  tbe 
line  of  tbe  conductor's  duty,  by  asserting  that  it  is  not  an  open 


^dbvGoO^lc 


45  CINCINNATI,  HAMILTON,  ETC.,  E.  OO.  V.  OAHPEK. 

qnesdnn  in  Indiana,  and  refer  ns  to  the  eases  of  Carter  v.  Louis- 
ville, N.  A.  &  0.  E.  Co.,  98  Ind.  553;  Evansville  &  T.  H.  B. 
Co.  V.  McKee,  99  Ind.  519 ;  Terre  Haute  &  I.  R.  Co.  v.  Graiiam,. 

46  Ind.  239;  Terre  H;iiire  &  I.  R.  Co.  «.  Fitzgerald,  47  Ind. 
19  ■  Indianapolis,  P.  &  C.  R.  Co.  v.  Antliony,  43  Ind.  103 ;  Jeffer-^ 
sonville  R.  Co.  v.  Rojjers,  38  Ind.  118 ;  Pennsjlvania  Co.  v.  Hoa^- 
land,  78  Ind.  203 ;  Coiinnbne,  C  &  I.  C.  R.  Co.  v.  Powell,  4» 
Ind.  37 ;  Great  Western  R.  Co.  v.  Miller,  19  Micb.  SOB ;  Bass  «. 
Cliicajro  &  N.  W.  R.  Co.  36  Wis.  450. 

Bnt  tliese  cases  do  not  meet  tlie  question  which  controls  here,  for 
they  do  more  tlian  assert  tliat,  for  a  vrong  of  an  agent,  whether 
willfnl  or  negligent,  committed  witliin  the  line  of  liis  duty,  the 
corporation  is  reponsit)1e,  and  tliat,  in  managing  the  train,  the  con- 
ductor is  the  agent  of  tiie  railroad  company. 

If  it  were  granted  that  the  act  of  dii-ecting  a  passenger  what 
course  to  pursue  after  leaving  a  train  is  within  tlie  line  of  the  con- 
ductor's duty,  then  the  path  of  the  appellee  would  he  a  smooth 
one,  traversing  solid  ground;  bnt  the  path  is  nigged  and  uncer- 
tain, hecauae  tlie  assninption  which  is  taken  for  granted — that  is, 
that  the  act  of  the  conductor  was  within  tiie  line  of  iiia  employ- 
ment— is  the  proposition  which  tnust  be  proved,  to  make  progress 
to  a  recovery  possible.  If  it  can  be  asenmed  that  a  railroad  com- 
pany actually  or  ostensibly  invests  its  conductor  with  authority  to 
direct  passengers  who,  by  mistake,  enter  the  wrong  train,  what 
route  tlicy  shall  take  back  to  a  station  where  they  can  rectify  their 
mistake,  then  these  anthoritiea  might  justly  be  i-ogarded  as  of  con- 
trolling fei-ce ;  but,  until  the  assumption  which  lies  at  the  founda- 
tion of  appellee's  theory  is  established,  these  authorities  are  irrel^ 
vant  and  inapplicable.  One  great  reason  why  a  passenger  is  justi- 
fied in  obeying  the  direction  of  a  conductor  is  because  tlie  conduct- 
or is  entitled  to  exact  obedience.  His  directions  are  in  the  nature 
of  commands  or  requirements, — lie  may,  indeed,  put  them  in  that 
form.  It  is  therefore  most  reasonable  that  a  passenger  should  have- 
a  rifiht  to  rely  on  them  when  they  are  of  that  nafnre. 

The  dii-ections  given  hy  the  conductor  ^n  this  case  are  not  of  that 
nature;  for  it  is  perfectly  obvious  that  he  could  not  have  required 
or  commanded  the  deceased  to  take  any  particular  route 
iKUKs  or  con-  back  to  the  station.  It  is  not  to  be  assumed  that  con- 
BDCTOB  DUTY.  j|^j,jjjj.g  j^j^^g  aiitlioHty  to  bind  the  company  by  general 
directions,  which  are  more  in  the  nature  of  advice  and  informa- 
tion than  of  requirements  or  commands,  as  to  what  a  passenger 
shall  do  after  he  leaves  the  train.  There  is  an  essential  difference 
Imtween  a  direction  in  tiie  nature  of  a  requirement,  and  a  direction 
in  the  nature  of  advice  or  information,  as  is  strikingly  illustrated 
bv  the  case  of  Vermont  v.  Chicago,  etc.,  R.,  28  Am.  &  Eng.  R. 
li.  Cas.  210;  JeSersonville  R.  Co.  v.  Swift^  26  Ind.  459.     It  is 


^d  by  Google 


s; 


CONDUCTORS    DIEECTIONS  TO  FASSEItGEB.  4d- 

elear  to  oDr  minds  t}iat,  apon  principle,  a  railroad  compatij  is  not 
reeponBible  for  direotionB,  in  tlie  nature  of  information  or  advice, 
~ven  to  a  paesenger  who,  throngii  bis  own  mistake,  has  entered 
le  wront;  train,  as  to  what  course  he  shall  pureae  after  leaving  the 
train.  This  iB  bo  becanse  the  company  does  not,  either  actually  or 
ostensibly,  confer  npon  the  conductor  authority  to  give  directions 
of  tliat  character  to  passengers  who  liave  entered  its  trains  by  mis- 
take not  cansed  by  any  negligence  on  its  part. 

Appellant's  counsel  dispose  of  the  question  by  saying:  "It  is 
not  an  opinion  given  or  an  act  done  within  the  scope  of  hts  author- 
ity or  employment,  but  a  friendly  act  on  the  part  of  t!ie  conductor 
toward  tlie  person  who  bad  taken  the  wrong  train  without  any  fanlt 
or  negligence  on  the  part  of  the  conductor."  The  only  authorities 
eited  are  the  cases  of  Lonisrilie,  N.  A.  &  C.  R.  Co.  v.  Bolaud,  53 
Ind.  398 ;  Cincinnati  &  M.  R.  Co.  v.  Eaton,  Id,  307  ;  Evansvillo 
A  C.  R.  Co.  V.  Dexter,  24  Ind.  411.  But,  a»  counsel  for  the  ap- 
peilee  justly  say,  "not  one  of  these  cases  bears eren  remotely  upon 
the  point  to  which  it  is  cited," 

Authorities  upon  the  general  question  are  very  abundant,  but 
npon  the  precise  phrase  of  tlie  question  here  presented  it  is  far 
otherwise.  Tlie  case  of  International,  etc.,  Co.  v.  Gilbert,  22  Am. 
&  Eng.  R.  K,  Cas.  405,  in  some  of  its  features,  resembles  tlie  pres- 
ent case  ;  but  in  tJiat  case  the  direction  given  by  tiie  conductor  was- 
clearly  witiiin  the  line  of  his  duty,  because  it  was  made  to  the  pas- 
eenger  while  on  the  train,  and  was  a.  direction  to  Jier  to  remain  on 
it.  Tlie  difference  between  the  two  cases  is  obvious,  for  here  the 
direction  was  as  to  what  the  passenger  should  do  after  he  had  left- 
tlie  train.  In  Chance  v.  St.  Louis,  I.  M.,etc.,  R.  Co.,  10  Mo.  App. 
351,  it  was  held  that  a  brakeman  charged  with  the  duty  of  direct- 
ing pasGengei-s  where  to  leave  the  cars  had  anthority  to  bind  the 
company  by  directing  the  passenger  to  take  a  prescribed  way  from 
the  train;  and  in  support  of  this  doctrine  the  cases  of  McDonald 
«.  Chicago  &  N.  W.  R.  Co.  26  Iowa,  145,  and  Allender  v.  C,  R, 
I.&P.  R.  Co.,  43  Iowa,  276,  were  cited.  That  case,  however,. 
stands  upon  tlie  rule  tliat  carriers  are  bound  to  provide  safe  alight- 
iDg  places,  and  are  bound  by  the  directions  of  their  employee  rep- 
resenting such  places. 

That  case  is  therefore  far  from  holding  that  directions  as  to  the 
course  to  be  taken  after  the  passenger  has  safely  alighted  are  within 
tlie  lineof  a  conductor's  duty.  There  is  some  resemblance  between 
this  case  and  that  of  Hnibert  v.  N.  T.  Cent.  R.  Co.,  40  N.  Y.  145 ; 
bat  the  court,  in  its  opinion,  attached  no  importance  to  the  direc- 
tions of  the  conductor,  and  held  the  company  liable  on  the  ground 
of  a  negligent  breach  of  duty  in  failing  to  make  safe  the  place 
where  passengers  entered  and  left  its  trains.  We  do  not  deem  it 
to  comment  upon  the  cases  which  hold  the  acts  of  an 


^d  by  Google 


44  CINCINNATI,  HAMILTON,  ETC.,  E.  CO.  «.  CAKPER. 

agent  not  to  be  witliiii  the  discharge  of  his  dnty,  but  content  onr- 
eelvea  with  referring  to  a  few  of  them,  and  to  tlie  text-books  where 
others  may  be  fonud.  Gilliam  v.  South  &  North  Ala.  R.  Co.,  70 
Ala.  268;  Nanii  v.  Georgia  R.  Co.,  71  Ga.  710;  a.  c,  51  Am. 
Kep.  284;  Sevier  v.  Vicksburg  &  M.  R.  Co.,  61  Mies.  8;  s.  c.,  48 
Am.  Rep.  74 ;  2  Wood,  R.  L.  1213. 

Tlie  complaint  cannot  be  upheld  unless  it  be  adjudged  that  the 
conductor  was  not  only  in  the  Bervice  of  the  company,  but  that  his 
instructions  or  directions  were  given  while  he  was  acting  for  tlie 
company  witliin  the  line  of  his  duty.  If  he  was  not  actingfor  t!ie 
company  and  within  the  line  of  Ins  duty,  the  company  would  not 
be  liable  even  though  he  was  in  its  service  and  had  committed  a 
willful  tort;  but  it  is  not  the  theory  of  the  complaint  that  he  com- 
mitted such  a  tort,  for  tiiere  is  no  averment  that  the  deceased  was 
compelled  or  required  to  leave  the  train.  We  cannot  presume  tliat 
a  wrong  was  done  by  the  conductor  ;  on  the  contrary,  facta  must 
be  alleged  which  warrant  the  conclusion  of  tortious  conduct,  for 
the  presumption  is  with  the  defendant,  and  not  the  plaintiff. 
Chicago,  St.  Lonis  &  Pacific  R.  Co.  v.  Bills,  104  Ind.  13; 
Beauchainp  v.  International  &  Great  Northern  R.  Co.,  66 
Tex..  239 ;  s.  c,  9  Am.  &  Eng.  R.  R.  Cas.  307.  We  mnst  con- 
clude that  the  deceased  willingly  left  the  train,  for  it  is  not 
otlierwise  ayerred  ;  and  so,  too,  we  mnst  conclude  that  there  was 
no  fault  on  the  part  of  the  conductor,  except  that  of  negligently 
instructing  the  deceased  where  and  liow  to  go  in  order  to  take  the 
CBSt-boand  train.  The  utmost  that  can  he  claimed  for  the  com- 
plainant with  trace  or  tinge  of  justice  is  that  it  shows  that  the  con- 
tactor negligently  gave  instrnctions  to  the  deceased  as  to  what  he 
should  do  and  wliere  he  should  go  after  alighting  frem  the  train. 
Thedecetised  left  the  train,  we  must  assume,  of  his  own  free  will, 
influenced,  it  may  be,  by  the  instructions  of  the  conductor,  but  not  . 
constrained  by  tliem.  Thus  he  severed  the  relation  of  passenger 
And  conductor,  and  thus  he  passed  fiom  the  conductor's  eiipervis- 
ion  and  control.  We  cannot  think  that  the  latter's  authority  went 
with  the  deceased  from  the  train,  controlling  and  protecting  him 
on  his  way  to  the  station.  If  tlie  conductor  had  instructed  the  de- 
ceased to  take  a  carriage  and  pass  over  a  turnpike  the  company 
would  not,  it  seems  to  us,  hare  been  liable,  even  though  the  con- 
■4lnotor  may  have  known  that  there  was  a  broken  bridge  or  a  pitfall 
■on  the  road,  which  the  deceased  conld  not  avoid.  Neither  would 
there  have  been  liabihty  if  the  conductor  had  assumed  to  direct  the 
deceased  to  take  a  footpath  wliich  he  knew  no  man  conld  tniverso 
in  safety.  The  principle  which  rules  the  real  ease  against  tlie  ap- 
pellee is  the  same  as  that  which  governs  the  supposed  cases,  and 
that  principle  is  that  the  conductor,  as  the  representative  of  the 
company,  had  neither  actual  nor  ostensible  authority  to  iuBtruct 


^d  by  Google 


PA8SEX0EBS — JUUPIKa  FKOM  MOVING  TKAINS.  45 

ooe  wlio  had  voluntarily  left  his  train  what  path  or  road  he  should 
walk,  to  reach  a  distant  etation. 
Jadgtuent  reversed. 

Sm  InterastioDal  R.  Co. «.  Gilbert,  22  Am.  &  Eng.  B.  R.  Cas.  40S ;  3  Wood. 
B.  L.  1318;  Vinoont  t>.  Chicago,  etc.  R,  38  Am.  &  Eng.  R.  R  Cas.  210. 


Raseh 

V. 

CsNTBAL  Iowa  B.  Oo. 
iAdvaiM  Com,  Imea.     October  34,  1887.) 

In  an  action  to  recover  damacea  for  injuries  received  in  alighting  from  de- 
fendant's train,  pUiatifi  alleged  that  she  received  her  injury  in  jumping  from 
the  train  ifbile  in  motion,  but  that  sbe  was  guilty  of  do  negligence  con- 
tributory thereto.  Seld,  that  under  the  Iiitter  averment,  plaintiff  was  en- 
titled to  prove  that  she  jumped  from  the  train  with  the  consent  of  the  person 
in  charge  thereof,  which  fact  would  relieve  her  of  any  liability  under  Acta 
16tfa  Gen.  Asscm.  Iowa,  c.  148,  §  2,  providing  that  if  any  person,  not  an 
employee  or  officer  of  the  law,  ia  discharge  of  Bia  duty,  shall  get  upon  or  off, 
any  locomotive  or  car  while  in  motion,  without  the  conaent  of  the  person  in 
charge,  he  shall  be  guilty  of  a  misdemeanor. 

As  a  natter  of  law,  independent  of  the  statute,  it  ia  not  always,  and  un~ 
der  all  circumstances,  an  act  ot  negligence  for  a  passenger  to  jump  from  a 
moving  train.  But  it  is  a  question  of  fact  for  the  jury  to  determine  from  all 
tbe  circumsUDces. 

In  an  action  to  recover  damages  for  injuries  received  in  jumping  from  de- 
fendant's train  while  in  motion,  there  was  no  evidence  to  show  that  plaintiff 
was  an  employee  or  an  officer  in  the  performance  of  his  duty,  and  no  direct 
evidence  to  show  that  the  conductor  in  charge  had  consented  thereto.  There 
was  a  verdict  for  plaintiS,  and  defendant  moved  for  a  new  trial,  on  the 
ground  that  the  evidence  did  not  sustain  the  verdict.  Beld,  that  to  entitle 
the  plaintiff  to  recover,  one  of  these  facts  must  be  proved  (Acts  IQlh  Oen. 
Assera.  Iowa,  c.  148,  §  2);  and  the  question  of  whether  or  not  consent  can 
be  inferred  from  the  acts  of  the  conductor,  at  the  time,  is  one  of  fact  for 
the  jury  to  determine,  and  not  for  the  court;  and  that  the  motion  should 
have  been  suatained. 

In  an  action  to  recover  damagea  for  injuries  received  in  alightinc  from  de- 
fendant's railway  train,  the  court  instructed  the  jury  that  if  they  enould  find 
that  the  employees  in  charge  of  the  train  negl i ceo tly  failed  to  assist  the  plain- 
tiff to  alight  therefrom,  and  started  the  train  before  plaintiff,  in  the  exercise 
of  diligence  to  do  so,  had  reached  the  platform  of  the  depot,  and,  without 
any  fault  on  her  part,  was  thrown  down  and  injured  as  alleged,  their  verdict 
■hould  be  for  plamtiS.     Meld,  that  a  railway  company  is  not  bound  to  render 


^d  by  Google 


46  RABEN   V.  CENTRAL   IOWA   R.  00. 

ita  paaaeagerE  persona)  ssHistsoce  in  alighting  from  its  trains  when  the;  ■rein 
proper  poaition,  and  suitable  and  safe  means  aie  provided  tberefor,  and  that 
the  court  erred  iu  so  instructing  the  jurj. 

At  the  time  of  the  trial  of  an  action  for  damages  received  in  alighting  from 
'defendant's  railway  train,  the  plaintiff  had  Dot  full;  recovered  from  the 
-effects  of  the  injury,  and  still  suffered  from  it.  The  physicians  attending 
her  were  unable  to  determine  whether  she  would  recover  or  .whether  the  in- 
jury would  be  permanent.  The  court  gave  the  following  Instruction:  "It 
;ou  And  from  the  testimony  that  her  injuries  are  permanent,  consider  such 
iDConvenience  of  getting  about,  and  pain,  if  any,  as  you  find  are  reasonably 
certain  to  result  therefrom  in  the  future."  Edd,  that  as  thare  was  someevi- 
dence  tending  to  show  that  plaintiff  would  in  the  future  suffer  pain  and 
iQConveDieDCe  from  the  injury,  the  instruction  vaa  Dot  erroneous. 

Appeal  from  cireoit  conrt,  Keoknk  county. 

This  is  an  action  for  tlie  recovery  of  damages  for  a  pei-sonal  in- 
jury  sustained  by  plaintiff,  as  is  alleged,  while  aligliting  from  a 
passenger  train  on  defendant's  railway.  Tlie  cause  was  tried  to  a 
jnry,  and  there  was  a  verdict  for  plamtifi  for  $3000.  Defendant 
died  a  motion  in  arrest  of  judgment ;  alsoa  motion  for  a  new  trial. 
Tlie  circuit  court  overruled  both  of  these  motions,  and  entered 
judgment  on  the  verdict.     Defendant  appealed. 

Blair  d;  Daily  and  George  D.  Wooden  for  appellant. 

Sampson  <&  Srown  for  appellee. 

Rbed,  J. — 1.  The  material  allegations  of  plaintifiTs  petition  are 
tliat  defendant  was  engaged  in  operating  a  line  of  railroad  on  which 
it  ran  passenger  trains,  and  carried  pa£sengei-a  for  hire.  That 
Ficn.  plaintiff  entei'ed   one   of  its   trains  aa   a  passenger  at 

Brighton,  having  purchased  a  ticket  at  that  station  today,  another 
station  on  defendant's  line,  and  being  accompanied  by  her  two 
young  children.  Tliat  the  conductor  took  up  her  ticket  and  knew 
she  was  a  passenger  for  Clay.  That  when  the  train  arrived  at  Clay 
she  immediately  started  to  leave  it,  but  that  the  conductor,  in  vio- 
lation of  defendant's  duty  to  her  to  permit  the  train  to  remain 
standing  at  the  platform  a  sufficient  length  of  time  to  enable  her 
to  alight  from  it  with  safety,  caused  it  to  be  started  forward  before 
ehe  had  time  to  alight  fi-om  it.  That  her  children  were  taken  from 
the  train  about  the  time  it  was  etaited  forward,  and  that  she,  be- 
lieving that  the  speed  of  the  train  was  not  such  but  that  she  could 
with  Siifety  jump  from  the  second  step,  and  desiring  not  to  be  c;ir- 
ried  away  from  lier  children,  did  jump  to  the  platform,  but  by  the 
motion  of  the  train  she  was  thrown  down  upon  the  platform,  and 
seriously  and  permaneiLtly  injured.  It  iaalso  alleged  that  the  con- 
ductor did  not  assist  her  to  aliglit  fram  the  train,  or  inform  her 
that  it  would  be  dangerous  for  her  to  attempt  to  alight  while  it  was 
in  motion.  Also  that  she  was  not  herself  guilty  of  any  negligence 
twliich  contributed  in.any  manner  to  the  injury. 


^d  by  Google 


PASSENGEBS — JUMPING  FKOM  MOVING  TRAINS.  47 

The  grannd  of  tlie  motion  in  arrest  of  judgment  iB  tliat  apon  the 
facts  stated  in  tlie  petition  plaintiff  is  not  entitled  to  recover 
Tlie  positionB  urged  by  conneel  for  appellant  are:  (1)  Tliut  inde- 
pendently of  any  atatuiorv  piovisioria  in  tlie  enhject  tlie  net  of 
alighting  from  a  moving  train  ie  negligent,  and  tlie  paseenger  wlio 
stteinpts  to  do  the  act,  and  is  injured  in  conseqiieiiue  thereof,  can 
liave  no  remedy  for  the  injury  aguiiiet  the  coiiipuJiy  ;  and  (2)  as  the 
act  is  forbidden,  and  is  pimishuble  aa  a  crime  by  expi'ess  statute, 
the  party  sustaining  an  injury  while  committing  it  cannot  recover 
damages  for  the  injurv. 

With  reference  to  tlie  first  position  ve  deem  it  snfGcicnt  to  sa^ 
that  it  cannot  be  said,  as  matter  of  law,  independently  of  the  statute, 
that  it  would  be  under  all  circumstances  an  act  of  coiaanman 
negligeuce  for  a  passenger  to  attempt  to  alight  from  a  '«»"omc«. 
moving  train.  But  the  question  is  ordinarily  one  of  fact,  to  be 
determined  by  the  jury  from  all  the  circumstances  of  tlie  transac- 
tion. It  is  trne,  a  case  might  arise  in  which  i£  would  be  the  duty 
of  the  court  to  determine  the  question  as  matter  of  law.  This 
would  be  trne  if  thei-e  were  no  disputed  facts;  and  but  one  con- 
clnsion  could  fairly  he  drawn  from  the  facts  established.  But  if 
the  facts  are  in  dispute,  or  if  diffei-ent  concUieione  might  fairly  be 
reached  by  different  minds  from  the  facts  established,  the  question 
is  for  the  jury.  Whitsett  v.  Railway  Co.,  67  Iowa,  150,  By  the 
allegations  of  the  petition  all  negligence  on  the  part  of  the  plaintiff 
was  denied,  and  under  them  she  was  entitled  to  prove,  if  she  could, 
that  the  injury  to  her  was  not  reasonably  to  be  apprehended  from 
the  act.  On  tlie  question  whether  tlie  act  of  aliglitiiig  from  a 
moving  train  is  negligence  per  ae,  see  Nichols  v.  Railway  Co.,  68 
Iowa,  732 ;  Lindsey  v.  Railway  Co.,  64  Iowa,  140  ;  Vimont  v.  Etail- 
way  Co.,  32  K  W.  Rep.  100. 

The  statute  lelied  on  in  support  of  the  second  position  urged  is 
section  2,  c.  148,  Laws  of  the  Sixteenth  General  Assembly,  which 
is  as  follows:  "  If  any  person  not  employed  thereon,  or  not  an 
ofBoer  of  tlie  law  in  the  discharge  of  liis  duty,  without  the  consent 
of  the  person  having  the  same  in  charge,  shall  get  upon  or  off  any 
locomotive  engine  or  car  of  any  railroad  company  while  said  en- 
gine or  car  is  in  motion  ...  he  shall  be  guilty  of  a  misdemeanor, 
and  be  punished  by  fine  not  exceeding  $100,  or  be  imprisoned 
not  exceeding  thirty  days."  It  is  insisted  that  tlie  facts  alleged  in 
the  petitioD  show  that  plaintiff's  act  in  jumping  from  the  train  was 
in  violation  of  this  statute.  It  is  to  be  observed,  however,  that  the 
statute  does  not  forbid  the  doing  of  the  act  under  all  circumstances. 
If  plaintiff  had  tlie  consent  of  the  conductor  to  alight  from  the 
train  while  it  was  in  motion,  she  did  not  incur  the  penalty  imposed 
by  it  by  doing  the  act.  If  she  cannot  recover  because  of  the 
statute,  it  is  because  she  acted  in  vioktion  of  its  provisions.     Her 


^d  by  Google 


48  EABEN  V.  CENTRAL   IOWA   R.  CO. 

act  was  negligent,  because  unlawful.  But  she  averred  in  Iter  peti- 
tion tliat  she  was  not  f^uilty  of  any  negligence  contributing  to  her 
injury.  We  tltink  elie  was  entitled  to  prove  that  elie  did  the  act 
with  the  consent  of  the  condnctor.  No  other  averment  was  neces- 
eary  to  entitle  lier  to  prove  that  fact.  The  petition  is  therefore 
BuR)ci):iit,  and  the  motion  in  arrest  of  judgment  was  property 
overruled. 

2.  There  was  evidence  given  on  tlie  trial  which  tended  to  prove 
that  the  circnmstancee  of  the  accident  were  snbetan- 
m«Sotot™"  tially  aa  charged  in  the  petition.  There  was  no  direct 
evidence,  however,  that  tlie  condnctor,  who  was  in 
elmrge  of  the  train,  consented  tliat  plaintiff  niiglit  alight  while  it 
was  ni  motion.  Neither  was  it  shown  tltat  he  knew  when  he 
Btarted  the  train  that  plaintiff  had  not  yet  alighted  from  it.  Now, 
was  the  question  whether  his  consent  might  be  inferred  from  his 
conduct  at  the  time,  enbmitted  to  the  jnry !  But  the  case  appears 
to  have  been  tried  by  the  plaintiff  upon  the  theory  that  the  ques- 
tion whether  elie  acted  npon  such  consent  in  jumping  from  the 
train  was  not  material. 

One  of  the  grounds  of  the  motion  for  a  new  trial  is  that  the 
verdict  is  not  eiistained  by  tiie  evidence.  The  case  then  presents 
the  question  whetlier  a  person  who  has  sustained  an  injury,  wliile 
aligliting  from  a  moving  i-ailway  train  can  maintain  an  action 
therefor  without  proof  that  he  was  an  employee  npon  the  train,  a 
public  officer  in  tlie  performance  of  his  duty,  or  tliat  he  did  tlie 
act  with  the  consent  of  the  person  in  charge  of  the  train,  or  some- 
officer  of  the  railway  company.  And  we  deem  it  proper  to  say  in 
this  connection,  that  while  the  qutstion  was  probably  involved  in 
some  of  the  cases  cited  above,  in  which  we  had  occasion  to  con- 
sider whether  the  act,  as  matter  of  law,  was  negligent,  in  none  of 
them  was  the  point  made  that  it  amounted  to  a  violation  of  the 
statute  quoted.  Nor  Wiis  our  attention  directed  to  that  statute  in 
our  consideration  of  the  cases.  So  that  none  of  the  cases  can  be 
regarded  as  determining  the  question.  The  object  of  the  legisla- 
ture in  enacting  the  statute  undoubtedly  was  to  pi-event  the  inju- 
ries which  were  likely  to  result  from  the  doing  of  the  foibidden 
acts,  and  the  language  made  use  of  leaves  no  room  for  construction. 
All  pei-sons,  except  those  belonging  to  the  three  excepted  classes, 
are  forbidden,  under  the  penalty  prescribed,  to  do  the  acts.  Un- 
less plaintiff  belonged  to  one  of  the  excepted  classes,  then  her  act 
was  unlawful  and  criminal.  And  it  makes  no  difference  that  she 
was  impelled  to  do  the  act  by  the  fear  of  l)eing  carried  away  from 
her  children,  or  that  she  hnd  renson  to  believe  that  she  could  do  it 
with  safety.  Excuses  equally  good,  perhaps,  could  be  given  in 
most  of  the  cases  where  passengers  are  tempted  to  take  risks  of  do- 
ing similar  acts.     If  her  act  was  unlawful  and  criminal,  clearly  she 


^d  by  Google 


PASSENGERS— JUMPIKO  FBOM  MOVING  TRAINS.  W 

cannot  recover,  for  lier  iiijnry  was  the  direct  consequence  of  the 
act,  and  the  law  will  not  afford  a  party  a  remedy  for  an  JninrvBUB- 
tnined  by  him  as  tlie  conseqnence  of  his  own  act,  when  it  liaa  for- 
bidden him  in  advance  to  do  that  act.  The  bui'den  was  on  plain- 
tiff to  prove  that  the  circnnistanc^s  of  tlic  occnrrence  were  such 
tliat  she  was  entitled  to  recover  for  the  injnry  ehe  enstuined,  and 
the  qiieBtioii  of  Iier  r^ht  to  recover  depends  npon  whether  her 
own  act  was  bwfnl.  It  follows  necessarily  that  slie  is  not  entitled 
to  recover  withont  proof  that  she  was  acting  lawfully  at  the  time. 
Bnt  it  is  insisted  tJint  the  consent  of  tlie  conductor  should  be  in- 
ferred from  his  condnct  at  the  time.  It  is  true,  doubtleBS,  that 
consent  may  be  shown  by  actions  as  well  as  by  express  words.  It 
may  be  inferred  from  the  conduct  of  the  party.  But  in  such  cases 
the  inference  is  one  of  fact,  and  it  was  for  the  jury,  and  not  the 
conrt,  to  determine  whether  the  consent  of  the  conductor  was  to 
be  fairly  inferred  fi-om  liis  conduct.  We  think  that  the  motion 
for  a  new  trial  slioutd  have  been  sustained  on  this  ground. 

3.  The  court  gave  the  followins;  instrnction  :  "  If  yon  find  from 
tlie  weight  of  the  testimony  that  defendant's  employees  in  charge  of 
tlie  train  in  question  stopped  it  at  tlie  proper  place  at  the  depot  to 
which  plaintiff  was  destined,  to  ennble  her  to  alight,  i„rBocnoi» 
and  negligently  failed  to  assist  her  to  do  eo,  or  to  look  °'™'  cmm. 
and  know  that  she  had  left  the  train  in  safety,  and  negh'gently 
started  the  train  before  she,  in  the  exercise  of  diligence  to  do  so, 
had  reached  the  platform  of  tlie  depot,  and  without  any  fault 
on  lier  part  she  was  thrown  down  and  injured,  substantially  as 
alleged,  joni- verdict  shonld  be  for  plaintiff.  .  .  ." 

Tlie  doctrine  of  this  instruction  is  that  it  was  the  duty  of  de- 
fendant's employees  to  assist  plaintiff  to  alight  from  the  train,  and 
if  they  negligently  failed  to  perform  that  duty,  and  started  the 
train  without  looking  and  seeing  that  she  had  left  it, 
defendant  is  liable  for  the  injury.  Tliis  doctiine  can- 
not be  BUGtaiucd.  It  is  undoubtedly  the  duty  of  a  rail- 
way company  to  provide  suitable  and  safe  means  for  entering  and 
alighting  from  its  trains.  But  having  done  this,  and  having 
stopped  its  train  in  proper  position  to  enable  passengers  to  avail 
themselves  of  those  means  in  entering  or  alighting,  it  is  not  bound 
to  render  them  personal  assistance.  The  contract  of  the  caiTier  is 
that  he  will  carry  the  passenger  safely  and  in  a  proper  carriage, 
and  .ifford  him  convenient  and  safe  means  for  entering  and  alignt^ 
ing  from  the  vehicle  in  which  he  carries  him,  but  he  does  not  con- 
tract  to  render  iiim  pei-sonal  service  or  attention  beyond  that.  The 
train  in  question  was  stopped  at  the  platform  of  the  depot,  and 
there  is  no  complaint  that  that  was  iiot  a  convenient  and  safe  place 
for  alighting  from  the  train.  While  defendant  was  bound  toseep 
its  train  standing  at  tlie  platform  a  reasonable  time  to  enable  plain- 
81  A.  &  B.  R  Ctu.— 4 


^dbvGooglc 


00  BABEH   V.  CENTRAL   IOWA   B.  OO. 

tiff  to  alifflit  in  safety,  it  was  not  bound  to  aseiet  her  in  aligbting. 
It  was  held  by  this  conrt  in  Alleiidei*  v.  Railway  Co.,  37  lown,  268, 
and  in  tlie  same  case,  43  Iowa,  276,  that  whether  the  carrier  was 
bound  to  assist  the  passenger  in  entering  or  alighting  from  tlie  car 
at  a  point  where  no  platform  or  other  convenience  for  enterinjr  it 
was  provided,  and  the  holding  was  based  on  that  state  of  facta. 
Our  nolding  in  tlie  present  case  is  not  in  conflict  with  the  holding 
ill  that 

4.  The  circait  conrt  told  the  jary  in  an  instmction  that  if  they 
found  for  plaintiff,  they  shonld  consider  the  pliysical  pain  whicn 
fnMAxmt  a-  she  had  already  sustained  in  consequence  of  tlie  injury. 
""^  Also  that  "  if  tliey  foand  that  her  injnries  were  perma- 

■«Dt  tbey  should  consider  snch  inconvenience  of  getting  about  and 
painas  they  slioald  find  reasonably  certain  to  result  thcrefiwm  in  the 
fntare,  and  award  her  such  sum  as  damages  as  will  reasonably  and 
fairly  compensate  lier  therefor."  Exception  is  taken  to  the  lan- 
gn^^  of  the  qnotation.  There  was  evidence  which  tended  to 
prove  that  plaintiff  had  not  recovered  from  the  injuiy  at  the  time 
of  the  trial,  and  that  she  still  suffered  pain  from  it,  and  that  her 
nse  of  one  of  her  limbs  was  greatly  itnpaii'ed  by  it.  Bnt  the  physi- 
cians who  had  attended  lier  were  not  able  to  detennine  whether 
she  would  recover,  or  whetiier  the  iiijnry  would  prove  to  be  perma- 
■ent.  Tiie  point  urged  by  counsel  is  that  the  evidence  did  not  war- 
rant  the  conrt  in  submitting  to  the  jury  the  question  whether  the  in- 
jary  was  permanent.  Bnt  we  think  the  instruction,  fairly' consid- 
ered, does  not  submit  that  question  as  an  element  in  the  case. 
There  was  evidence  tending  to  prove  that  plaintiff  would  in  the 
future  suffer  pain  and  inconvenience  from  the  injury.  If  so,  she 
was  entitled  to  be  compensated  therefor,  if  defendant  is  liable  for 
the  uijury,  whether  it  is  permanent  or  not.  And  those  are  the 
matters  which  the  jury  were  dii-ected  to  consider,  in  awarding  the 
damages.  The  iDStmotion  affords  defendant  no  just  ground  of  ex- 
ception. 

For  the  errors  pointed  out  the  judgment  must  be  reversed. 

Alighting  from  Moving  Tralui — A  passenger  who  jumps  off  or  on  a  mOT- 
ing  tr&in  is  prima  fade  negligent.  Bbannon  ti.  Boston  &  A.  R.  Co.,  3  Atl. 
Rep.  678;  Knig))t  c.  Pontcliartrain  R.  Co.,  33  La.  Ann.  463;  JefEersonville 
R  Co.  «.  Hendricks,  36  Ind.  32B. 

It  is  not  neceMoril;  negligence  to  take  a  choice  of  risks  or  to  do,  iritbout 
freedom  of  choice,  an  act  involving  danger;  but  it  is  negligence  to  risk  life 
or  limb  merely  to  escape  inconvenience  or  mental  vexation. 

It  is  negligence  for  a  passenger  to  leap  from  a  moving  train  for  the  mere 
purpose  of  getting  off  at  a  station  where  the  train  should  stop,  but  does  not 
do  so,  even  though  he  takes  that  course  in  order  to  save  others  distress  on 
account  of  hisabsence.     Lake  Shore  £  M.  8.  R.  Co.  v.  Bangs,  47  Mich.  470. 

So  in  Lax  o.  Darlington,  5  Ex.  D.  8S,  Bramwell,  L.  J.,  said;  *  "A  person 
tnvelUng  on  a  tailwaj  ia  token  to  some  place  where  he  ought  not  to  have 


^dbvGooglc 


PASSENGERS — JUMPINCi  FROM  MOVING  TRAINS.  61 

heea  taken — bejond  a  platform,  for  iDBtaoce.  He  jumps  out,  riBkiog  tha 
•daoger,  and  hurts  himself.  In  my  opinion  in  BUch  a  ciua  as  that  he  ought 
to  have  no  remeAj  against  the  company  for  the  hurt;  if  he  chooses  to  jump 
«ut  and  hurt  himself  he  must  take  the  hurt.  What  he  must  do  is  to  sit  in 
the  carriage  and  be  carried  on  beyond  where  he  vranta  to  go,  and  then  bring 
bis  action  against  the  company  for  not  aflurdiug  him  proper  accommodalinii 
to  get  out.  I  have  no  doubt  of  the  good  sense  of  that;  I  have  not  a  mis- 
fpymg  of  it,  and  I  cannot  agree  to  a  great  deal  of  what  was  said  in  the  cnso 
«f  Clayarda  o.  Dethick  (12  Q.  B.  489;  84  E.  C.  L.)-  It  was  then  asked, 
'was  the  cabman  bound  to  stay  in  all  day)'  Boundl  Bound  to  whuni? 
A  person  being  bound  supposes  his  being  bouad  to  somebody.  It  is  an 
inaccurate  eiprcssion.  One  does  not  care  about  words  except  when  thi-y 
mislead.  The  expression  '  bound  '  was  used  there.  Why,  of  course,  he  wns 
not  bound ;  because  there  was  nobody  to  saj  to  bim  'you  shall.'  But  if  lui 
-chooses  to  go  out  with  an  obvious  danger  before  bim  be  must  take  the  cuu- 
sequences.  Suppose  a  man  is  shut  up  in  the  top  room  of  a  house  unlawfully ; 
is  he  bound  to  stay  there?  He  is  not  bound  to  do  anything  of  the  kind;  lie 
may  jump  out  it  he  likes  to  run  the  risk  of  breaking  his  neck  or  his 
limbs;  he  may  let  himself  down  by  a  rope  or  a  ladder,  out  if  he  runs  the 
risk  of  getting  out  and  breaks  his  neck  the  person  who  shuts  him  up  is  not 
-guilty  of  manslaughter;  and  if  he  breaks  his  leg  he  ought  not  to  have  any 
-right  of  action  against  chat  person,  although  he  wasnot  bound  to  stay  there." 
In  Gavett  v.  M.  &!,.  R.  Co.,  16  Gray  (Mass.),  501,  it  was  held  that  a 
passenger  in  a  railway  car  who,  knowing  that  the  train  la  in  motion,  goe« 
•aut  of  the  car  and  steps  upon  the  platform  of  the  station  while  the  train  is 
■•till  in  motion,  is  bo  wanting  in  ordinary  care  as  not  to  be  entitled  to  main- 
tain an  action  against  the  railroad  corporation  for  an  injury  therefrom.  See 
«l80  Hickey  v.  K.  Co.,  14  Alien  (Mass.)  429;  Nichols  n.  Railroad  Co.,  lOS 
Hass.  468;  Burrows  s.  Railroad  Co.,  68  N.  Y.  956.  So  in  Secor  v.  Railroad 
'Co.,  10  Fed.  Rep.  15,  a  passenger  on  a  train  that  had  approached  a  station 
.and  was  still  moving  slowly,  stood  on  the  loner  step  of  a  car,  in  the  act  of 
■eteppin^  to  the  platform  of  the  station,  when  the  car  was  moved  forward 
with  a  jerk,  and  lie  was  thrown  upon  the  platform  and  injured,  ffeld,  that 
lie  was  guilty  of  contributory  negligence  in  attempting  to  alight  from  the 
4rain  while  it  was  in  motioA. 

Alighting  from  Slowly  Moving  Train  where  Company  Is  Negligent.— 
But  where  the  passenger,  by  the  negligence  of  the  company,  has  to  choose 
between  leaving  the  cars  while  moving  slowly  or  being  carried  beyond  his 
-destination,  and  chooses  to  jump  and  is  injured,  the  company  will  be  liable, 
unless  the  jury  find  that  under  the  circumstances  the  attempt  to  alight  was 
megligence.  Filer  c.  N.  Y.  C.  R.  Co..  48  N.  Y.  47;  Lloyd  d.  Hannibal,  etc.. 
R.  Co.,  58  Mo.  509;  Illinois  Central  R.  Co.  «.  Able,  6fl  111.  131. 

In  Lindsey  v.  The  Chicago,  R.  I.  A  P,  R.  Co..  64  la.  407,  Bcevcrp.  J.,  ob- 
serves: "There  are  cases  when  a  passenger  is  justified  in  taking  risks, 
where,  by  negligence  of  the  company,  he  is  in  danger  of  being  carried 
beyond  his  destination,  and  we  are  not  prepared  to  say  a  passenger  would 
-not  be  juitiSed  in  making  the  attempt  to  step  from  the  train,  if  it  was  mov- 
ing slowly;  that  is,  it  would  be  a  question  for  the  jurv." 

In  Shsnnon  n.  Bnston  &  A.  R.  Co.  (He.)  2  All.  Rep.  STB,  the  ])laintiL 
while  waitinjT  for  her  train  was  invited-  by  the  station  agent  to  sit  in  an 
-empty  car  on  the  side  track,  while  the  waiting  room  was  twiog  cleaned,  he 
assuring  her  that  the  car  would  remain  there.  Without  signal  or  notice  of 
.any  kind  the  train  to  which  the  car  was  attached  began  to  be  moved  out  by 
'  an  engine,  with  neither  conductor  nor  brakeman  on  aboard.  Startled  by 
-the  sudden  and  unexpected  movement,  plaintiff  hurriedly  passed  to  the  rear 
•of  the  car  and  jumped  out  while  the  train  was  abreast  of  the  platform  and 


^d  by  Google 


d2  &UEN  «.  OENTB&Ii  IOWA  B.  00. 

moTiog  bIowI;,  and  wm  injared  thereby.  Tbe  pluntlff  had  &  verdict. 
Held  that  she  waa  a  paaaenger  in  the  care  of  the  compaaj  and  eotitled  U> 

SrotectioQ  as  audi,  and  the  companj  waa  leBpoDsible  for  her  injuriea, 
etert,  C.  J.,  said:  "The  defendant's  negligence  is  undoubted.  Th» 
plaintiS  was  greatly  frightened  in  tier  dilemma  caused  b;  their  faulL  Thtt 
car  began  to  more  with  neither  conductor  nor  brakeman  on  the  train  to  ex- 
plain the  movement.  It  could  not  be  conjectured  by  the  occupants  whers 
the  train  waa  going,  and  the  case  does  not  inform  us  where  it  went,  Thv 
plsintifi'a  alarm  waa  naturally  increased  by  the  proipect  that  her  com- 
panions might  get  out  and  ahe  be  left.  Her  bundles  bad  been  thrown  onL 
Bhe  saw  the  others  land  safely  upon  the  platform,  and  it  waa  their  judg- 
ment that  she  could  safely  jump.  They  urged  her  to  do  bo.  She  couU 
ha»e  alighted  safely  probably  had  she  observed  how  it  should  be  done. 
The  mistake  was  more  in  the  manner  of  jumping  than  in  the  act  itself. 
While  we  cannot  know  the  exact  rate  of  speed  attained  by  the  train,  tba- 
cars  were  yet  abreast  of  the  platform,  and  were  apparently  moving  slowly. 
Under  alt  of  these  stipulations  the  sttempt   was  made.     The  decision  to 

iump  or  not  had  to  be  made  almost  in  a  twinkling.  A  person's  judgTuent 
D  such  circumstances  should  not  be  too  nicely  criticised  by  those  whOM- 
careleMnesB  produced  the  predicament." 

Whethar  Alighting  Amounts  to  Negllgancs    It  for  tho  Jury Whether 

the  passen^r  was  guilty  of  negligence  in  attempting  to  alight  from  a  mov- 
ing train,  is  a  question  of  fact  for  the  jury  under  the  circumstances  of  the 
case.  Duvis  e,  Chicago,  etc.,  R.  Co.,  18  Wis.  175:  Chicago,  elc,  R.  Co.  e. 
Randolph,'  S3  III.  SIOj  Atchison,  etc.,  li.  Co.  t).  McCnndless.  S3  Kan.  8S6; 
0.,H.  &S.  A.R.  Cn.  e.  Smith,  59  Tex.  406;  Dofb  e.  M..  K.  &  T.  R.  Co.,  6» 
Mo.  27;  Strand  e.  Chicago  &  N.  W.  H.  Co.,  28  Am.  &  Erg.  R.  R.  Cas.  213, 

Where  a  passenger  lias  partly  descended  the  Etcps  of  a  car  when  the  train 
starts,  it  cnnnot  be  said,  as  a  matter  of  law,  that  lie:  is  guilty  of  negligence- 
if  he  proceeds  to  alight,  but  it  is  a  question  for  the  jury  under  all  tbe  facts. 
Nichols  D.  The  Dubuque  &  Dakota  R.  Co..  08  In.  733. 

Alighting  bj  Direction  of  the  Conductor.— Where  the  psssenget  alights 
from  a  «lowly-moving  train  at  the  instance  or  direction  of  the  conductor,  on 
whose  opinion  or  judgment  in  the  matter  he  has  the  right  to  rely,  and  when 
the  risk  or  danger  is  not  apparent,  he  is  not  clinrgeable  with  negligence. 
Bt.  Louis,  I.  M.  &  8.  R.  Co.,  37  Ark.  SIB;  a.  c,  8  Am.  &  Eng.  It.  It.  Cos. 
198. 

It  is  not  negligence  per  »a  for  the  passenger  to  leave  the  train  while  in  mo- 
tion; if  he  19  told  by  the  conductor  to  get  off,  or  given  by  him  to  understand 
that  he  can  do  so  in  safety,  and  tlie  surroundirg  circumstances  are  such  aa 
to  give  him  reason  to  believe  lie  may,  lie  is  juetilied  in  milking  the  attempt. 
Buclier  b.  N.  Y.  C.  &  H.  H.  R.  Co.,  98  N,  Y.  138;  s.  c,  21  Am.  &  Eng.  It, 
R.  Cas.  361. 

In  Georgia  R.  Co.  s.  McCurdy,  45  On.  268,  the  train  did  not  stop  at  the 
atalion  to  let  tho  plaintiff  oS,  but  only  slackened  its  speed,  and  the  plaintiff 
got  off  under  the  direction  of  tbe  conductor  and  was  injured.  &ld,  that- 
the  company  was  liable. 

In  Chicago  &  A.  R.  Co.  r.  Randolph.  S3  III.  510,  it  was  held,  that  if  th& 
conductor  only  gave  it  as  his  opiniou  that  the  passenger  cuuld  leap  from  th» 
train  in  safety,  and  the  passenger  acted  on  the  suggestion,  still  it  was  his  duty 
to  exercise  his  judgment  whether  or  not  it  was  safe;  and  if  the  conductor  only 

Save  it  as  a  matter  of  opinion,  yet  if  the  danger  was  so  apparent  that  a  pru- 
ent  man,  similarly  situated,  would  not   have  attempted  to  leap  from  tha- 
troin,  then  the  passenger  was  guilty  of  negligence,  and  could  not  recover.  ' 
See  also  Jeffersonvitle  R.  Co.  e.  Swift,  2a  Ind.  4SB. 
In  Ijndsey,  «.  The  Chica^  R.  I.  A  P,  It.  Co.,  04  la.  407,  tbe  plaintiff  wi* 


^d  by  Google 


FABBENOEKS — JUMPIMa  FBOH  MOTIHG  TKAIHS.  6S 

aileep  when  hU  dettiaatiDii  wis  reachad  ud  f^«d  to  get  off  when  tb« 
•tKtion  wu  called.  After  thf  train  hid  lUrted  m  bnkamin  told  him  if  be 
wanted  to  get  ofi  at  that  station  be  bad  better  do  so  quicklj.  The  trva 
maa  moving  at  tlie  speed  of  teven  miles  an  hour,  and  plaiutifi  paued  out 
of  the  car  to  the  platform  and  stepped  down  od  the  second  or  third  step, 
lookiDg  out  for  the  depot,  a*  be  testiSed.  While  lo  atanding,  the  train  gave 
«  snddeD  jerk  and  he  was  thrown  to  tlie  grouad  and  injured.  Held,  that  hia 
poiitioD  was  a  dangerous  one,  voluDtarilj  taken,  and  that  he  waa  guilty  of 
contributor;  ne^tligence  and  conid  not  lecoTer. 

In  Vimont  o. Chicago  tr.N'.W.R.  Co.  (la.)  »■  c-.  38  Am.  &Eng.R.  R,  Cm. 
'filO;  after  the  train  had  left  the  station,  and  had  acquired  considerable  speed, 
tbe  conductor  said  to  the  passenger  "jump  oS  quick,  if  you  are  going 
to."  Bdd,  this  did  not  constitute  a  requiremsiit  to  leave  the  train  so  as  to  ren- 
der the  railroad  liahle  to  the  passenger  for  tlie  injuries  received  in  doing  so. 

In  Lnmbeth  t>.  North  Carolina  R.  Co.,  SB  N.  C.  4S4,  the  court  held  that 
"if  the  intestate,  without  any  direction  from  the  conductor,  voluntarily  in- 
curred danger  bj  jumping  ofi  the  train  while  in  motion,  tho  plaintiff  was 
not  entitled  to  recover;  but  if  the  motion  of  the  train  was  so  slow  that  the 
daoger  of  jumping  ofi  would  not  be  apparent  to  a  reasonable  person,  f.nd 
tbe  mtestatc  acted  under  tho  instractions  of  the  conductor,  then  the  result- 
ing injury  wsa  not  csuKd  by  rontributnry  negligence  or  want  of  care.'' 

Alighting  Against  the  Conductor's  Advicft.— Where  a  paasenger  attempts 
to  alight  from  a  moving  train  againtt  the  advice  of  the  conductor,  and  is  in- 
jured, he  cannot  recover.  Penna.  R.  Co.  o.  Aspetl,  S3  Pa.  St.  147;  Jewell 
«.  Chicago,  St.  P.  &  M.  R.  Co.,  Si  Wis.  610. 

In  Penna.  R.  Co.  e.  Aspell,  23  Fn.  St.  147,  Black,  C,  J.  said ;  "  The  plain- 
tiff below  was  a  passenger  in  the  defendant's  cars  from  FhLladelphia  to  Hor- 
fan's  Corner.  The  train  sliould  have  stopped  at  the  latter  place;  but  soma 
efect  in  tbe  bell-rope  prevented  the  conductor  from  making  tbe  proper  slg- 
Dal  to  the  engineer,  who  therefore  went  past,  though  at  n  speed  somewhat 
slackened  on  accriunt  of  the  switches  which  were  tnere  to  be  crossed.  The 
pliuntiff  seeing  himself  about  to  be  carried  on,  jumped  from  the  platform  of 
the  car,  and  was  Berjbusl;  hurt  in  the  foot.  He  brought  this  action,  and  the 
jury,  with  the  approbation  of  the  court,  gave  him  |1500  in  damages.  Persons 
to  whom  the  management  of  a  railroad  is  entrusted  are  bound  to  exercise  the 
atricteat  vigilance.  They  must  carry  the  passengers  to  their  respective  places 
of  destination,  and  set  them  down  safely  if  human  care  and  foresight  cnn  do 
it.  They  are  responsible  for  every  injury  caused  by  defects  in  the  road,  the 
cars,  or  the  engines,  or  by  any  species  of  negligence,  however  slight,  which 
they  or  their  agents  may  be  guilty  of.  ,  .  ,  If  a  passenger  is  negligently  car- 
ried beyond  the  station  where  he  intended  to  fetap,  and  where  he  had  a  right 
to  be  let  oS,  he  can  recover  compensation  for  tho  inconvenience,  the  toes  of 
time,  and  the  labor  of  travelling  back,  because  these  are  the  direct  conse- 
quences of  the  wrong  done  to  him.  But  if  he  is  foolhardy  enough  to  jump 
off  without  waiting  for  the  train  to  stop  he  does  it  at  his  own  risk,  because 
this  is  gross  imprudence,  for  which  he  can  blame  nobody  but  himself.  If 
there  be  any  man  who  does  not  know  tlmt  such  leaps  are  extremely  danger- 
ous, especially  when  taken  in  tho  dark,  his  friends  should  see  that  he  does 
not  travel  by  railroad.  It  is  true  that  a  person  is  not  chargeable  with  neg- 
lect of  his  own  safety  when  he  exposes  himself  to  one  danger  by  trying  to 
avoid  another.  In  such  a  cose,  the  author  oF  the  original  peril  is  answerable 
for  all  that  follows.  .  .  .  But  did  the  plaintiff  in  the  present  cose  suffer  the 
injury  he  complains  of  by  attempting  to  avoid  another  with  which  he  was 
threatened?  Certainly  not;  he  was  in  no  possible  danger  of  anything  worse 
than  being  carried  on  tn  a  place  where  he  did  not  chooBe  to  go.  That  might 
have  been  inconvenient,  but  to  save  himself  from  a  mere  inconvenience  bjr 


^d  by  Google 


64         STEANB  V.  CHICAOO  AND   WEST  UICHIGAN  B.  CO. 

•n  act  which  put  his  life  in  jeopftrdy,  waa  inezcuBable  rashness.  Urn* 
far  I  have  cbnsidered  the  case  without  reference  to  certalD  facts  dit- 
closed  in  the  evidence  which  teed  to  diminish  the  culpability  of  tiie  defend- 
ants' agents,  while  they  aggravate  (it  anythiue  can  aggravate)  the  follj  of 
the  plaintiS.  When  he  was  about  to  jump,  tne  conductor  and  tlie  brake- 
man  entreated  him  not  to  do  it,  warned  him  of  the  danger,  and  assured  him 
that  the  train  should  be  stopped  and  backed  to  the  station.  If  he  had 
heeded  this  he  would  have  been  safe);  let  down  at  the  place  he  desired  t4> 
atop  at,  in  less  than  a  minute  and  a  half.  Instead  of  this  he  took  a  leap- 
which  promised  him  nothing  but  death,  for  it  was  made  in  the  darkaeas 
of  night,  against  a  wood-pile  close  to  the  track  naA  from  a  car  going' 
probably  at  the  full  rate  of  ten  miles  an  hour." 

In  Jewell  v.  Chicago.  St.  P.  &  H.  B.  Co.,  S4  Wis.  SIO,  the  plaintiff  passed 
out  of  the  railway  car  and  got  upon  tlie  platform  thereof,  and  attempted  to 
Btep  or  jump  from  the  car  while  it  was  in  motion,  contrary  to  the  warning- 
of  the  brekeman  and  bystanders.  Hdd,  that  she  could  not  recover  for  in- 
juries suffered  in  consequence  thereof,  even  though  she  had  reached  her 
place  of  destination  and  the  train,  which  had  previously  stopped  to  per- 
mit passengers  to  alight,  hsd  not  so  stopped  for  a  reaeonable  length  of 
time.  See  aluo,  Qavett  c.  Hanchoster,  etc.,  R.  Co..  16  Gray  (Mass.),  501;  Jef- 
ferson ville  R.  Co.  e.  Hendricks,  36  Ind.  22S;  JeSersonviLIe  H.  Co.  e.  Bwift, 
W  Ind.  469. 

It  is  not  carelessness  in  a  conductor  to  notify  passengers  of  their  approach 
to  the  station  at  which  they  mean  to  get  off,  so  that  they  may  prepare  t» 
leave  with  as  little  delay  as  possible  when  the  train  stopa.  Peuna.  R.  Co. 
«.  Aspell,  S3  Pa.  St.  147, 

When  Ralation  of  Passenger  Ealsts.~~The  actual  purchase  of  a  ticket  or 
the  entering  of  a  car  is  not  always  necessary  to  constitute  the  relation  of 
carrier  and  passenger.  Allender  e.  C,  R.  1.  &  P.  R.  Co.,  37  la.  364 ;  Oordoit 
•.  Grand  Bt,  R.  Co.,  40  Barb.  (N,  Y.)  646. 

Entering  the  depot  and  waiting  tor  the  means  of  conveyance  with  th» 
ionafida  intention  of  becoming  a  passenger  will  be  sufficient.  Gordon  e. 
Grand  St.  R.  Co.,  40  Barb.  (N.  T.)  646;  Buffett  ».  T.  &  B.  R,  40  N.  T.  168. 

A  gratuitous  passenger  is  entitled  to  the  same  degree  of  care  as  one  who 

eys  his  fare.  P.  &  R.  R.  o.  Derby,  14  How.  (U.  S.)  468;  Abell  o.  W. 
R.  6S  Hd.  4S8 ;  s.  c,  21  Am.  &  Eng,  R.  R  Cas.  603 ;  Prince  «.  I.  A;  O.  N. 
R,  64  Tex.  144;  s.  c,  U  Am.  &  Eng.  R.  R.  Cas.  163;  Wilton  e.  Hiddle- 
sez  a  Co.,  107  Mass.  106,  125  Hast.  130;  Todd  «.  Old  Oolooj  R  Co.,  ft 
Allen  (Uasa.),  18,  7  Allen  907. 


Strasd 

V. 

Ohioaoo  ahd  West  Michioak  R.  Co.,  Appt 

{Advante  Cote,  MiehigiM.     October  S7,  1887.) 

Id  an  action  to  recover  damages  sustained  by  the  plaintiff  while  getting 
off  defendant's  train,  by  the  sudden  starting  up  of  the  train,  where  it  ap- 
peared that  he  had  been  drinking  whiskey,  hdd,  that  it  was  the  duty  of 


^d  by  Google 


nrroxiOATion  as  contbibutobt  neoliosnob.        OS 

the  court,  npoo  tfae  reqaeat  of  the  defendant,  to  instmct  the  jurj  thAt,  If  tha 
Jury  ahoald  find  that  plaintiff  was  at  all  under  the  infliieace  of  Uquor,  and 
that  that  fact  contributed  to  produce  the  injur;,  be  could  not  recover. 

If  none  of  the  defendant's  employees  kne^  that  the  plaintiff  had  beat 
diinkiug,  they  were  bound  only  to  use  toward  him  the  care  and  pcudenoo 
that  a  sober  man  would  require  for  hie  safety. 

If  the  liquor  that  pliiintin  bad  taken  interfered  at  all  with  his  diligence  in 
■tartinB  to  leave  the  train,  or  lessened  his  caution  or  prudence  in  getting  of^ 
and  this  effect,  however  dight,  contributed  to  the  iojurj,  he  was  not  enti- 
tled to  demand  damages. 

A  man  cannot  voluntarily  place  bioiself  in  a  condition  whereby  he  loM> 
Buch  control  of  his  brain  or  muscles  as  a  man  of  ordinary  prudence  and  can- 
tion,  in  the  full  possession  of  his  faculties,  would  exercise,  and  by  auch  loM 
of  control  contribute  to  an  injury  to  himself,  and  then  require  of  one  igno* 
rant  of  his  condition  recompense  therefor. 

An  instruction  by  the  court  that  a  fair  preponderance  of  evidence  mean! 
■uch  evidence  aa,  when  weighed  with  that  which  ia  offered  to  oppose  it,  hai 
more  convincing  power  in  tne  minds  of  the  jury,  and  outweighs  that  which 
is  offered  to  oppose  it,  and  does  not  neceaaarily  mean  that  a  greater  number 
(rf  witneaaea  ahall  be  produced  on  one  side  or  the  other,  is  not  erroneouo. 

Ebeob  to  review  a  jndgment  of  the  Kent  circait  conrt  agaiiut 
the  defendant  for  an  injury  cansed  by  the  negligence  of  defendant. 
Reversed. 

The  facts  are  stated  in  the  opiniob. 

l^ith,  NirM,  Hoytf  A  Erwm  for  defendant,  appellant 

Bimey  Hoyt  for  plaintiff,  appellee. 

HossK,  J. — ^There  is  no  material  difference  in  the  eridenee  be- 
fore ns  now  and  that  presented  when  the  case  was  first  here.  Beo 
38  Am.  &  Eng.  K.  B.  Gae.  213. 

Tliere  was  therefore  snfficient  testimony  on  the  qaestion  of  nw- 
ligence,  both  as  regards  the  plaintiff  and  defendant,  to  eabmit  tfie 
case  to  the  jnry. 

No  errors  are  assigned  in  relation  to  the  admission  or  rejection 
of  testimony.  The  whole  argnment  is  aimed  at  the  charge  of  the 
conrt. 

There  are  thirty-one  assignments  of  error.  Several  of  them  are 
disposed  of  already,  as  tiiey  are  directed  against  the  submission  of 
the  case  to  the  jury.  Many  of  the  reqnests  refused  were  ^iven 
in  substance,  or  modified  in  accordance  with  well^ettled  principtea, 
and  we  shall  not  here  discues  them, 

Tho  evidence  shows  that  the  plaintiff,  who  resided  at  Diamond 
Lake,  in  Newaygo  connty,  on  the  morning  of  tlie  12th  f*oi«. 

day  of  December,  1884,  about  seven  o'clock,  took  passage  npoo 
the  cars  of  the  defendant  at  that  place,  and  i-ode  to  White  Clond, 
abont  five  miles.  He  stayed  at  White  Cloud  nntil  about  11  a.  «., 
when  he  took  the  train  for  his  liome.  While  at  White  Cloud,  by 
hie  own  testimony,  he  drank  whiskey  three  timee.     There  was  evi- 


^d  by  Google 


66  STBA.HD  V.  CHICAGO  AND   WEST   MICHIGAN  B.  00. 

dence  tending  to  bIiow  that  he  drank  fire  times.  Thera  was  no 
evidence  showing  thsit  he  was  go  intoxicated  or  bo  affected  b;  liq- 
uor as  to  be  iiottceab}e  bj  any  of  the  defendiint's  employeea  upon 
tlie  train.  One  of  the  paBscngers  teEtified  that  he  innghed  and 
talked  a  good  deal,  looked  red  in  the  face,  felt  pi'etty  well,  and 
acted  "fanny  and  happy,"  as  the  witness  did  sometiines  wlien  he 
was  "on  a  little  toot.  Another  witness  tlioiight  Sti-and  was  under 
the  inflnence  of  Iiqnor,  and  teetitied  that  he  stnggci'ed  passing  b^ 
tween  the  aisles  when  the  car  was  in  motion. 

The  defendant's  counsel  requested  the  court  to  instruct  the  jury 
Bs  follows : 

"  It  is  admitted  that  the  plaintiff  had  tliree  drinke  of  whiskey 
innvucnon.  that  inoming  ;  and,  if  the  jury  find  tliat  lie  wns  at  all 
under  the  influence  of  liquor, — mid  tliat  tlie  fact  contributed  to 
prodnce  the  injui'y,  he  cannot  recover." 

"If  the  jnry  find  tliat  Strand  did  not  use  renBonnble  diligence 
in  getting  off,  but,  from  any  cimee, — as,  from  being  under  the  in- 
flnence  of  liquor,— delayed  getting  off,  and  this  contributed  to  the 
injury  of  the  plaintiff,  he  c:innot  recjsver." 

■'  If  the  plaintiff  was  under  the  inflnence  of  liquor  to  any  extent, 
so  that  that  hindei'ed  or  delayed  him  in  getting  off,  or  influenced 
his  jadgtnent  in  getting  off,  and  that  his  being  under  the  influence 
of  liquor  contrihnted  to  his  injury,  he  cannot  recover." 

These  i-eqnegts  wei-e  refused,  but  the  court  in  this  respect  in* 
stmcted  the  jary  as  follows : 

"The  evidence  in  the  case  shows  that  the  plaintiff  Imd  beeo 
drinking,  had  drank  some  whiskey;  thera  is  some  dispute  about 
the  amount.  Xliis  evidence  is  introduced  in  the  case,  and  is  enti- 
tled to  be  considered  for  its  bennng  upon  tlie  question  whether  the 
plaintiff  used  I'easonabte  diligence  in  endeavoiing  to  get  off,  and 
I'e.iBonable  caution  in  attempting  to  alight.  But,  unless  you  find 
that  the  liquor  which  he  hud  taken  affected  liim  in  one  of  these  r& 
spects,  the  fact  of  his  drinking  becomes  entirely  nnimpoi'tant  in 
tlie  case.  In  other  words,  it  is  admissible,  as  a  ciicnnietance,  for 
what  you  think  it  worth  as  bearing  upon  the  main  questions  in  the 
case,  to  which  I  have  dii-ected  your  attention." 

At  the  close  of  the  charge  the  following  colloquy  took  place  : 

By  a  juror:  May  I  aak  a  question}  If  the  company  allow* 
dranken  man  to  ride,  are  thoy  not  bound  to  take  care  of  him  until 
he  gets  off  ? 

Tlio  court :  Tiiere  is  no  evidence  in  this  case  that  would  jubU^ 
an  instruction  upon  that  inquiry. 

By  a  juror :  The  defense  undertook  to  show  that  he  was  under 
the  mSnence  of  liquor) 

The  court:  Tes. 

By  a  juror:  And  if  the  company  allowed  him  to  get  aboard, 


^d  by  Google 


INTOXICATION   AS    OONTBIBUTORT  NEGLIOENOE.  67 

knowiDf;  tliat  hg  was  under  tLe  inflnence  of  liquor,  whether  they 
vonld  not  be  boand  to  tike  care  of  hiin  ag  a  pereon,  and  use  extra 
cantion  in  letting  him  oft  eafely  i 

The  court:  What  I  mean  to  Bay  upon  that  point  is  that  there  is 
no  evidence  in  the  case  which  wonid  jnetify  the  court  in  submit- 
ting tlie  qneation  to  the  jnry,  or  whether  or  not  tlie  ngentB  of  the 
oompany  liad  their  attention  directed  to  his  being  in  a  helplees 
condition,  or  in  a  condition  requiring  especial  attention. 

Plaintiffs  counsel :  Will  yon  allow  ine  one  suggestion  on  that 
matter  t 

Tlie  conrt :    Tea. 

Plaintiff's  counsel:  I  would  suggest  that  the  rale  of  law  as  to 
allowing  tiie  plaintiff  a  reiisonable  time  to  get  off  is  that,  tnking all 
the  facts  as  they  were, — tlie  circnmBtances,  liie  age,  size,  and  condi- 
tion,  the  bundles  tlint  he  liad, — under  tJiese  circuinstuicGs  as  they 
were,  lie  sliould  be  allowed  a  reasonable  time  to  get  off. 

The  court :  I  supposed  the  jury  would  assume  that  ns  a  matter 
of  course,  in  determming  what  would  be  a  rcasounble  time  for  a 
party  to  alight.  If  1  did  not  say  so,  I  certiiinly  intended  to, — that 
the  jury  are  to  talce  into  account  the  fact  that  passengers  often  are 
incambered  with  patikages,  and  that  they  must  of  necessity  have  a 
reasonable  opportunity  to  arise  from  tlieir  seats,  take  their  lug- 
gage, whaterer  it  may  be,  and  depart  fram  the  train  in  a  reason- 
able manner.  That  I  supposed  the  jary  would  assume  without 
special  instructions  on  that  point. 

Defendant's  counsel :  In  view  of  the  question  which  the  juror 
asked,  I  would  like  to  make  a  snggeetion  to  your  Honor,  and  ask 
your  Honor  to  charge  the  jury  iu  this  respect;  and  I  ask  your 
Honor  to  charge  the  jury  that  the  company  would  not  be  respon- 
eible  to  a  passenger,  and  wonld  not  be  under  obligations  to  extend 
any  more  than  the  usual  privileges  to  him  in  getting  off,  on  account 
of  his  being  intoxicated  or  uiider  the  infinence  of  liquor,  nnlesa 
tliey  knew  of  his  condition  ;  and  that  iu  this  case  theieiis  no  evi- 
dence that  the  condnctor  or  brakeinan  had  any  knowledge  of  his 
being  in  a  condition  so  tiiat  he  could  not  get  off  as  ordinary  pas- 
sengers do. 

The  conrt :  I  think  gentlemen,  that,  inasmuch  as  this  question 
has  been  suggested,  it  is  fnir  to  both  parties  that  it  be  stated  that 
that  is  by  no  means  the  theory  of  the  pliiintiff  here.  Tlie  plaintiff 
has  not  contended,  nor  does  the  plaintiff  plant  his  case  upon  any 
theory  that  this  man  was  in  a  helpless  condition.  In  this  ciise  there 
is  no  such  question.  There  is  no  evidence,  either,  that  any  such 
oondition  of  the  plaintiff  was  called  to  the  attention  of  the  agents 
of  the  company.  On  the  contmiy,  the  contention  on  the  part  of 
the  plaintiff  is  tli&t  the  man  was  not  in  a  state  of  intoxication  at 
the  time,  iu  any  way  so  that  it  affected  his  locomotion  or  his  ability 
to  alight  from  the  train. 


^d  by  Google 


08         STRAND  V.  OHIOAGO  AND  WEST  HICBIGAN  B.  00. 

The  first  and  third  of  these  reqaesta  embodied  the  law  as  applied 
to  the  fact  stated  therein,  and  sbonld  have  been  given,  or  their 
equivalent,  in  snch  plain  langDngo  astoadinitof  no  misconception 
by  the  jury. 

The  second  would  have  been  correct  if  the  words  *'  from  any 
oanae"  had  not  been  iiiaei'ted. 

The  colloquy  above  giveu,  and  the  chaive  of  the  conrt  in  rebticn 
^.  to  the  drinking  of  the  ptaintif^did  not  cover  or  embraoe 
oovnuoioKT  the  propoaitiona  iasisted  npon  by  defendant's  coansol, 
and  to  which  they  were  entitled.  The  jnry  were  told, 
only,  that  tliey  mi^lit  coneider  the  fact  or  claim  of  the  plaintiff 
drinking  as  a  "circumstance  bearing  npon  the  qnestion  of  reaeoo- 
able  dilTizence  and  caution."  They  should  liave  been  tJenriy  in- 
Btructed  tiiat,  if  the  drinking  of  the  plaintifi  eontribated  at  all  to 
the  injary,  he  could  not  recover. 

As  it  was  conceded  in  the  case  that  none  of  the  defendant's  em* 
ployeeeknow  that  Strand  had  been  drinking,  they  were  bound 
only  to  QBO  toward  him  the  care  and  prudence  that  a  sober  man 
wonld  require  for  his  safety.  If  the  liquor  that  Strand  had  admit- 
tedly taken  intei'fered  at  all  with  his  diligence  in  starting  in  time 
to  leave  the  train,  or  lessened  his  caution  and  prudence  in  getting 
off, — and  this  effect,  however  slight,  contributed  to  the  injury, — he 
was  not  entitled  to  demand  damages. 

A  man  cannot  voluntaiijy  place  himself  in  a  condition  whereby 
he  loses  Buch  control  of  liis  brain  or  muscleE  as  a  man  of  ordinary 
pmdence  and  caution  in  the  full  possession  of  his  faculties  would 
exercise,  and  by  such  loss  of  control  contribnte  to  an  injury  to  liim- 
eelf,  and  then  require  of  one  ignorant  of  his  condition  recompense 
therefor. 

The  court,  as  to  the  bnrden  of  proof,  said:  "  The  harden  of 
proof  rests  npon  the  pl^ntiff  to  make  out  the  facts 
n-wbich  I  have  stated  to  you  are  essential  to  establish 
his  case,  by  a  fair  preponderance  of  evidence.  By 
this  is  meant  such  evidence  as,  when  weighed  with  that  which  ift 
offered  to  oppose  it,  has  more  convincing  power  in  the  minds  of 
the  jnry.  It  is  not  a  technical  term  at  all,  but  means  simply  that 
evidence  which  outweighs  that  which  is  offered  to  oppose  it.  It, 
does  not  necessarily  mean  that  a  greater  number  of  wttnesses  shall 
be  produced  on  the  one  side  or  the  other,  but  that,  upon  the  whole 
evidence,  the  jnry  believe  the  greater  probability  of  the  truth  to  be 
npon  the  side  of  the  party  having  the  affirmative  of  the  issue." 

It  is  claimed  tiiat  tliiBinstruction  allowed  the  jury  to  decide  npon 
the  probabilities  of  tlie  existence  of  a  certain  fact  or  facts,  without 
being  satisfied  of  snch  existence. 

We  do  not  think  so.  Tlio  jury  were  plainly  told  in  other  parts 
of  the  charge  that  they  must  find  two  fRCts:  (1)  that  the  defendant 
was  negligent ;  and  (3)  that  the  plaintiff  was  not  negligent 


^d  by  Google 


nrroxiOATiON  as  oonTRTBtnoBT  nxgliqehcie.       69 

In  determinin^tlieee  questions,  upon  which  it  was  assnined  that 
there  was  conflicting  eviuence,  the  question  of  the  burden  of  proof 
voee.  And,  in  stating  the  detiuition  of  the  word  "  preponderance," 
this  instruction  complained  of  was  given.  It  was,  in  fact,  a  defini- 
tion of  tile  term  "  preponderance  of  evidence,"  and,  bb  a  definition^ 

In  tlie  case  of  Dnnlwr  v.  McGill,  1  Mich.  (L.  ed.)  631,  7  West. 
Sep.  877,  wlien  the  action  waa  in  trover  for  tlie  alleged  convereion 
of  a  flock  of  sheep,  the  trial  jndge  inatrncted  the  jury :  "  If  yon 
find  that  tliese  were  Dunbar's  sheep, — that  there  is  a  greater  prob- 
abilitj  tliat  they  were  Dniibar'a  sheep  than  thut  they  were  not," — • 
and  otiier  thinga  occurred  aa  claimed  by  plaintiff,  lie  could  recover. 
We  held  this  cliarge  erroneous  because  it  permitted  or  anthonzed 
tlie  jnry  to  find  that  the  sheep  were  Dunbar'a,  withoQt  their  being^ 
oonvinced  of  that  fact. 

The  charge  here  is  not  open  to  thia  objection.  If  the  evidence- 
of  the  plaintiff  is  more  probable  than  that  of  the  defendant,  it  cer- 
tainly ontweighs  it ;  and,  if  it  ontweiglis  it,  the  propoiiderance  i» 
vith  the  plaintiff.  That  is  all  the  iiiatniction  complained  of 
amonnted  to.  This  does  not  of  conrse  relieve  tlie  jury  from  the- 
dnty  of  finding  that  the  plainnff'e  evidence  is  tine,  in  order  to  ren- 
der a  verdict  in  his  favor.  But  in  this  case,  if  the  evidence  of  the- 
plaintiff  was  to  be  believed,  he  was  entitled  to  recover.  On  the- 
other  Land,  if  the  defendant's  testiriiouy  was  tilken  as  tine,  h» 
conid  not  recover.  One  veraion  or  the  otlior  was  the  trne  one. 
The  jnry, in  determining  between  tliem,  had  the  right  to  weigh  the- 
probabilities  of  the  different  alories.  to  asceitairi  which  was  correct. 

This  is  what  they  did,  and  were  properly  instructed  to  do. 
Thera  w&s  nothing  in  thia  instrnction  that  authorized  the  jnry  to- 
gnees  either  that  the  defendant  was  negligent  or  the  plaintifi  with- 
out fault.  They  were  told  to  find  tliese  facts,  and  were  simply 
authorized,  in  getting  at  the  trnth,  to  weigh  the  probability  of  the- 
different  versions,  .ind  if  they  found  one  more  probable  than  the 
other  it  preponderated  over  it. 

The  cliiirge  of  the  court  cannot  be  complained  of  in  any  respect 
except  as  to  the  influence  of  liquor,  if  any  such  influence  waafoiind 
upon  the  action  of  the  plaintiff. 

For  the  error  in  this  respect,  the  jndgment  of  the  court  below 
must  be  reversed,  with  costs  of  tliis  court,  and  a  new  trial  granted.. 

Sherwood  and  Champlin,  Jj,,  concurred. 

Intoxtcsted  Pattangen  aniltlod  to  Ddq  Care. — The  fact  that  a  man  Is  in- 
toxicaied  does  not  free  the  company  from  its  duty  to  reader  to  him,  as  a. 
passenger,  duo  care.  It  ia  the  duty  of  a  carrier  of  passengers  to  olnprve  ili» 
•Brae  Fare  to  a  dninkeo  as  to  a  sober  man.  Millitnan  n,  N.  Y.  C.  &  H. 
B.  R.,  60  M.  T.  643;  tee  also,  Giles  e.  Great  Western  R.  C".,  ;iO'  l*;ii)er 
Canada,'  Q.  B.'860,  869. 


^d  by  Google 


60         STRAND  V.  OHIOAOO  AND  WEST  HIOHIOAH  R.  00. 

Id  Bobinsoii  e.  Pioche,  0  C«l.  460,  Heydenfeldt,  J.,  obierTM;  "  A  dninkoB 
man  !■  u  much  entitled  to  a  eaie  street  m  a  sober  one,  and  much  more  in  need 
of  it."  And  in  Oilea  •.  Qreat  Weatern  R  Co.,  80  Upper  Canada  86B,  Wil- 
aoD,  J.,  diacnaaing  the  liability  of  the  compan;  for  the  injury  of  a  passenger 
who  was,  aa  the  condactor  said,  "  prettf  drunk"  when  he  KOt  on  the  train, 
obeerred  that  the  defendant*  would  not  be  liable  for  his  injurj  "  unless  the 
ooodactor  knew  the  deceased  was  intoxicated  and  unable  to  take  care  of  hiin- 
aelf,  in  which  case  the  conductor  would  certalolj,  having  taken  him  aa  ft 
passenger,  be  bound  to  give  him  that  degree  of  attention  as  to  his  safety 
while  under  his  care  which  a  man  in  the  state  of  the  deceased  ia  fairly  en- 
titled to  beyond  that  of  an  ordinary  passenger." 

Iiitoiloatlon  aa  Contributory  Negligenee. — If  the  intoxication  of  the  party 
injured  has  contributed  to  the  injury,  he  cannot  recover.  Eean  e.  B.  &  0. 
B.,  6lHd.  IM;  s.c,  19  Am.  &  Eng.  R.R.Cas.  831;  Hilliman  v.  N.  T.  C.  A 
H.  R.R.,eSN.  T.  648;  C,  R.I.  &  P. R  e.  Bell,  70111.  102;  I.  C.  R  e. Hutch- 
inson, 47  111.408;  HagiiireE.  Middlesex,  R  Co.  115  Mass.  £80. 

When  Evidence  of  Intoxioation  Admissible. — The  intoxication  of  the 
party  injured  ia  admissible  in  evidence  to  prove  contributory  ueBligence. 
H.  &  T.  C.  R.  e.  Waller,  GO  Tex.  831;  s.  c,  8  Am.  &  Eng.  R  R.  Cu.  481; 
8.  W.  R  V.  Haukereon,  61  Ga.  114 ;  Herring  e.  W.  &  R.  R.  10  Ired.  (N.  C.) 
408 ;  Cleveland^  etc.,  B.  Co.  c.  Sutherland,  10  Ohio  St.  151 ;  Alger  e.  Lowell, 
8  Allen  (Mass.),  403 ;  Cramer  e.  Burlington,  43  Iowa,  810 ;  Thorp  e.  Brook- 
field,  86  Conn.  831 ;  Detchett  «.  Spuyten  Duyvil,  etc.,  R  Co.,  S  Hnn  (N.  Y.), 

In  Wynne.  Allard,  6  W.  &  8.  (Pa.)  624,  the  court  siud:  "  The  evidence  of 
intoxication  ought  to  have  been  received ;  not  because  the  legal  consequencea 
«f  a  drunken  man's  acts  are  different  from  those  of  a  sober  man's  acts,  but 
,  because  where  the  evidence  of  negligence  ia  nearly  balanced,  the  fact  of 
drunkenness  might'turn  the  scale,  inasmuch  as  a  man  partially  bereft  of  bis 
faculties  would  be  less  observant  than  if  be  were  sober,  and  less  regardful  of 
the  safety  of  others." 

Hearsay  Evidence  ofDrunkanneMnatAdmlsslble.—In  Lake  Erie  &  Western 
B.  Co,  e.  Zofflnger,  10  Am.  &  Eng.  R  R.  Cas.  871,  the  plaintifl  had  been 
struck  by  amoving  train  at  a  street  crossing,  the  defence  wasthat  plaintiff  was 
intoxicated,  and  therailroadcompany  offered  to  prove  cliat  juat  before  the  ac- 
cident, the  plaintiff,  iu  a  saloon,  called  for  a  drink  of  liquor,  and  the  barkeeper 
told  him  he  had  enough ;  the  court  rejected  the  offer.  Beid,  that  the  evidence 
was  properly  refueed,  aa  the  fact  of  plaintiff's  intoxication  could  not  be 
proved  by  the  declaration  of  a  third  person. 

Railroad  Company  not  bound  to  carry  Intoxloated  Passengers.— Common 
carriers  of  passengers  are  not  bound  to  carry  drunken  persons;  they  have  the 
right  to  repress  and  prohibit  all  disorderly  conduct  in  their  vehiclea,  and  to 
expel  or  exclude  therefrom  any  peiaon  whose  conduct  or  condition  is  such  as 
to  render  acts  of  impropriety,  rudeness,  indecency  or  disturbance  either  in- 
evitable or  probable.  Vinton  v.  Hiddlcaex  R  Co.  11  Allen  (Haas.),  804; 
Atchison,  etc.,  R.  Co.  v.  Weber,  31  Am.  &  Eng.  R.R.  Caa.41B;  see  also  notes 
to  10  Am.  &  Eng.  R  R  Gas.  831,  and  21  Am.  &  Eug.  R  R  Cas.  418. 


^d  by  Google 


FASSSNGIilB   nv    ENGINE— NEOLIQEN OS. 


Lake  Shokb  add  M.  S.  B.  Ca 

V. 

Bbowh,  Adm'x. 
(Advanet  Oate,  lUirwrit.     Ni>t«inler  II,  1887.)'' 

la  anftctionagainat  anilroadcomp&Dy,  for  damages  for  tha  death  of  plalD- 
tiffa  iateatate,  it  appeared  that  the  deceased  was  eotitled  to  tmaaportatioD 
'  on  defendant's  road ;  Chat  by  invitation  and  direction  of  defendant's  servant 
ha  got  upon  the  foot-hoard  of  the  engine,  from  which  he  was  thrown  and 
kilted.  3eld,  that  if  the  place  be  was  directed  to  take  waa  one  of  mora  than 
ordinary  peril,  defendant's  gervaQta  were  required  to  exercise  a  degree  of  care 
correspooding  to  the  danger  to  wliich  they  had  exposed  him. 

In  an  action  against  a  railroad  company,  for  damages  lor  t be  death  of  plain- 
tifTs  intestate,  tbere  was  evidence  showing  that  deceased,  a  shipper  of  stocic, 
waa  entitled  to  transporlatioa  from  the  switch-yard  to  the  stock-yards;  that 
the  only  means  furnished  were  the  top  of  a  stock-car  or  theengine;  that,  by 
direction  of  the  engineer,  he  got  upon  the  foot-board  of  the  engine.  The 
defendant  asked  for  the  instruction  that  common  prndence  dictated  that  he 
should  put  himself  in  the  safest  place  possible,  and  if  the  engine  was  not  a» 
safe  as  the  car,  ha  was  guilty  of  negligence.  Seld,  that  the  instruction  was 
properly  refused,  ae  it  ignored  thequestion  whether  the  deccssed  was  directed 
to  take  the  place  he  did  by  defendant's  servanta,  and  also  their  negligence  in 
the  management  of  tlie  engine. 

Though  a  train  is  not  operated  for  the  purpose  of  carrying  passengers,  yet 
if  those  in  control  thereof  assume  to  carry  a  passenger,  and  he  gets  on  the 
train  by  their  invitation  and  direction,  they  are  bound  to  operate  the  train 
in  auch  a  manner  as  due  care  and  attention  would  suggest  for  tho  safety  of 
the  passenger. 

In  an  action  against  a  railroad  company,  for  damages  fur  the  death  of  plain- 
tiff's intestate,  where  it  appeared  thnC  the  der.eaaed  was  entitled  to  Irnnsporla- 
tion,  and  had  got  on  the  enginu  by  direction  of  the  engineer,  the  deffodant 
asked  the  instruction  that,  if  tlie  jury  found  the  rules  of  tho  company  for- 
bade an  engineer  to  allow  a  person,  not  an  employee,  to  ride  on  the  engine, 
then  the  deceased  was  not  ri^^htfiiUy  on  the  engine.  I&ld,  that  the  private 
rules  and  regulations  of  a  railway  company  prescribing  the  duty  and  power 
of  ita  employees,  cannot  afFect  a  person  having  no  nntice  of  them,  nor  is  ho 
bound  to  stop  and  inquire  the  extent  of  the  servant's  authority. 

In  an  action  against  a  railway  company  for  damages,  the  dcclnration  alleged 
that  the  deceased,  ashipper  of  slock,  bad  the  right  to  be  carried  with  his  stock 
to  the  stock-yard,  and  that  he  was  rightfully,  and  by  the  direction  of  defend- 
ant's servant,  upon  the  engine  in  transit  to  his  destination.  The  defendant 
*  objected  to  the  admission  of  evidence  showing  the  custom  of  defendant  in 
allowing  shippers  of  live-stock  to  ride  upon  its  engines  and  cars  from  tho 
switchyard  to  the  stock-yard.  Jleld,  that  the  allegations  in  the  declaration 
were  broad  enough  to  admit  of  any  legitimate  proof  tendins  to  show  the 
right  of  deceased  to  be  on  the  engine,  and  the  evidence 'objected  to  was 
competent,  as  tending  to  show  the  authority  of  defendant's  servant  to  carry 
dec<«aed,  and  ttiat  he  was  a  paasenger  for  reward. 


^dbvGoo^^lc 


63  LAKE  8HOKE  AND  H.  8.  K.  00.  V.  BKOWV. 

Where  the  Bervants  o(  a  railway  company,  witli  apparent  autliority,  di- 
rected a  passenger  to  take  passage  on  its  engine,  it  cannot  escape  liabilitj 
for  an  injury  to  him,  resulting  from  the  negligence  of  ita  own  Mrvanta,  by 
ehowiag  that  he  might  have  procured  passage  oy  aome  other  line  of  travel. 

In  an  action  against  a  railway  company,  for  damages  foi  death  of  plain- 
tiff's intestate,  the  court  inatructed  the  jury  that  if  they  found  the  deceased 
vaa  rightfully  oa  the  engine  by  iDvitaticAi  and  direction  of  defendant's  ser- 
vant, that  he  used  ordinary  care  for  his  personal  safety,  and  was  injured  by 
the  carelessness  of  defendant's  servants,  the  plaintiff  co  u  Id  "recover ;  but  if 
they  did  not  believe  a  man  of  ordinary  care  and  prudence  would  ride  upon 
.an  engine  as  deceased  is  shown  to  have  done,  ptaintiff  could  not  recover. 
S«ld,  that  these  instructions  are  not  erroneous,  as  unfair  statements  of  the 
issues,  and  do  not  tend  to  mislead  the  juryinto  understanding  that  the  plain- 
'tis  might  reoover,  although  deceased  was  negligent  in  getting  on  the  engioo 
and  remaining  there. 

In  an  action  for  damages  for  death  of  plaintiff's  intestate,  caused  by  n^ 
ligence  of  the  servant  of  a  railway,  the  defendant  asked  the  court  to  instruot 
the  jury,  as  a  matter  of  law,  that  the  deceased,  having  undertaken  to  ride 
on  defendant's  engine,  though  by  invitation  and  direction  of  defendant's 
servant,  was  not  a  passenger,  and  could  claim  none  of  the  rights  of  a  pas- 
aenger.  BeJd,  that  whether  or  not  deceased  was  a  passenger  is  a  question  of 
fact  for  the  jury,  and  the  instruction  was  properly  refused. 

In  an  action  against  a  railway  company,  for  damages  for  the  death  of 
'  plaintifTs  intestate,  the  defendant  asked  the  court  to  instruct  the  jury,  as  a 
matter  of  law,  that  it  was  not  under  obligation  to  furnish  the  deceased,  a 
shipper  of  stock,  with  transportation  from  the  switch-yard  to  the  stock- 
yards. Held,  that,  aa  there  was  evidence  tending  to  ahow  that  the  deceased 
was  entitled  to  such  transportation,  the  queation  mas  one  for  the  jury. 

When  a  fact  has  been  testified  to  by  two  witnesses,  and  not  controverted, 
it  is  not  reversible  error  to  refoM  to  permit  the  party  to  accumulate  evidence 
on  that  particular  point. 

CSAIB,  J.,  diaseating. 

Appeal  from  iipjiellnte  cotirt,  iirst  district. 

Ch/ruB  D.  Roys  and  Pliny  B.  SmiiJi  for  appellant, 

Oeo.  M.  Stevens  and  Geo.  A.  Bv.  Puy  for  appellee. 

Shope.  J. — Tliis  waB  an  action  by  appellee,  as  administratrix  of 
NelBon  Brown,  deceased,  to  recover  damiiges  for  cansing  tlie'  death 
of  said  decease(i.  Tlie  trial  in  tlie  anperior  court  of  Cook  connty 
resulted  in  a  verdict  for  plaintiS,  and  jiidgment  tliereon.  Upon 
appeal  to  tlio  appellate  court  of  tlio  firet  district,  the  judgment  of 
t)ic  su])erior  court  waB  afUnned,  and  tlie  case  is  brought  hei'e  by 
the  fui'tbcr  appeal  of  tlio  railroad  company. 

If  the  case  was  properly  submitted  to  the  jniy,  they,  by  the  ver- 
dict rendered,  necessarily  found  every  fact  material  to  a  recovery 
in  favor  of  the  plaintiflt.  "We  must  accept  the  general  judgment 
of  siBnnance  OB  settling  all  questions  of  fact  favorably  to  the 
plaintiff  below,  and  that  the  evidence  is  sufHeient  to  snetain  the 
Qiiuing  of  the  jury  under  the  issues,  as  made  by  the  pleadings  in 
the  case.  We  nuist  assnine,  tlierefore,  that  plaintiff's  intestate  ^vas 
rightfully  a  passenger  ou  defendant's  train,  in  charge  of  his  stock, 


^d  by  Google 


PASSENQEB  OH   ENGINE — NEOUOENCK,  63 

and  bad  a  rig)it  to  be  safelj  carried  to  the  Union  stock-yards,  and 
was,  as  between  himself  and  defendant,  rightfully  and  by  invita- 
tion and  direction  of  defendant,  by  its  Bervants  in  charge  of  his 
stock  and  of  defendant's  engine,  on  the  foot-board  of  tlie  engine, 
aa  alleged  in  the  declaration,  and  was,  at  the  time  of  his  injury,  in 
the  exercise  of  due  and  ordinary  care  for  his  safety,  and  that  his 
injury  and  death  were  caused  by  and  resnlted  from  the  groes  neg- 
lige.ice  of  defendant's  servants  in  the  running,  management,  and 
operation  of  the  engine  npon  which  he  was  so  by  invitation  nght- 
fully  riding,  as  charged  in  the  declaration.  Our  consideration 
will,  therefora,  be  confined  to  questions  of  law  which  arise  upon 
tbe  admission  and  exclusion  of  evidence,  and  to  instrnctions  given, 
refused,  or  modified  at  the  trinl. 

The  principal  question,  and  the  one  of  greatest  difiicnlty,  is  in 
reference  to  the  alleged  negligence  of  the  deceased  in  Pmmm  ^ 
-getting  npon  tlie  foot-board  of  the  switch-engine,  and  =™'™- 
attempting  in  that  position  to  ride  from  Forty-third  street  to  the 
Btock-yarda.  Many  of  the  instractiotiB  asked  by  appellant  proceed 
□  pon  the  theory  that  tlie  deceased  w;ib  guilty  of  such  negligence 
in  80  being  upon  tlie  foot-board  of  the  engine  as  to  prevent  a  re- 
■covery  by  tiis  personal  representative.  It  cannot  be  said,  however, 
that  tlie  deceased, -in  getting  on  the  foot-board  of  the  engine,  and 
remaining  there,  was  in  violation  of  any  duty  imposed  upon  him 
by  law ;  nor  is  it  conceded  that  in  so  doing  lie  acted  with  less  cir- 
-comspection  and  care  for  his  personal  safety  than  would  have  been 
observed  by  prudent  and  ordinarily  careful  men  nnder  like  cir- 
-camstances.  Indeed,  this  is  the  ahai'ply-  controverted  question  in 
the  case,  and  the  question  of  negligence  was,  tlierefore,  a  question 
-oi  fact  to  be  determined  by  the  ]nrY>  upon  consideration  of  all  the 
facts  and  circamatances  proved.  Railroad  Co.  v.  O'Connor,  119 
III.  586. 

The  test  of  plaintifTs  right  of  recovery  in  tliia  case  was  the  ex> 
-ercise  by  the  deceased  of  ordinary  cai-e,  that  is,  such  care  as  a  pru- 
dent and  ordinarily  cautious  man  would  exereise  for  his  personal 
safety,  and  the  failure  of  appellant  to  exercise  such  care,  and  that 
by  reason  thereof  the  injury  and  death  oeenrred.  It  cannot  be 
said  as  a  matter  of  law  that  a  pi'udent  and  ordinarily  cautious  man 
would  not,  under  any  circumEtancee,  ride  a  short  distance  upon  an 
-engine.  Ex^Krience  has  shown  there  is  some  danger  in  the  safest 
mode  of  raiiway  travel,  and  it  cannot  be  said  that  one  must  not 
take  a  particular  mode  of  camagfe  because  it  is  dangerous.  The 
•qaeetion  can  only  be  determined  as  before  stated  by  a  consideration 
of  all  the  attending  ci  ream  stances. 

In  this  case  it  is  alleged  in  the  declaration,  and  the  jury  have 
fonnd,  that  the  deceased  had  the  right  to  be  carried  over  Picn. 
'the    defendant's  road   to   the   stock^yarde;  then,   evidence   tend- 


ed by  GoOglc 


64  LAEB  BHOBB  AlfD  H.  S.  B.  CO.  V.  BROWN. 

ing  to  show  t}iat  when  Fortj-third  street  was  reached,  the  caboose, 
in  which  lie  had  been  riding  wae  taken  away,  and  his  car  of  stock 
left  Btatiding  on  appellant's  tnick;  that  it  was.  tlio  iiabit  or  cns- 
tom  of  appellant  to  carry  the  attendants  of  stock  fiom  that  point 
to  the  Gtock-yai'ds,  three  foiiiths  of  a  mile,  on  the  stock  car  or 
Bwitch-engine,  which  picked  up  the  stock  cars  dropped  by  appel- 
lant's train  at  Forty-third  street,  and  took  them  to  tlie  stock-vards; 
that  deceased  had  been  engaged  in  sliipping  stock  over  appellant's 
road  for  several  years;  that  no  other  mode  of  transportation  was 
provided  by  appellant  from  Forty-third  street  to  the  stock-yarda  ; 
that  the  }'ard-niaster  of  appellant  directed  the  engineer  of  the 
switch-engine  to  go  and  get  the  "drover"  and  his  car  of  stock, 
which  he  did,  at  the  same  time  directing  the  deceased  to  get  on 
the  engine ;  that  in  pnrsnnnce  of  snch  direction  the  deceased  got 
on  the  foot-board  of  the  engine.  It  appears  also,  that,  after  getting 
under  headway,  tho  speed  of  the  engine  was  checked,  and  tiie 
conpling  pin  pulled,  when  the  etigine  was  thrown  or  "jerked" 
forwartTfor  the  purpose  of  making  a  rnnning  switch.  By  the 
endden  and  violent  motion  thus  given  .to  the  engine  the  deceased 
was  thrown  froiti  the  foot-l>oard  npon  the  track  and  was  rnn  over 
by  the  car  of  stock  from  which  the  engine  had  just  been  detached 
and  so  injnred  that  death  ensued. 

In  determining  wliether  the  deceased's  being  npon  the  foot- 
board was  negligence,  it  became  competent  for  the  jnry  to  consider 
not  only  the  acts  of  the  deceased,  bnt  also  the  acta  of  the  servants 
of  tlie  company,  not  atone  in  respect  to  their  management  of  the 
trains,  but  as  connected  with  the  acts  complained  of  as  negligence 
on -the  part  of  the  deceiised.  There  may  be  fanlt  on  the  part  of 
the  carrier  in  putting  the  passenger  in  a  place  of  unnecessary  haz* 
ard,  or  in  giving  him  assurance  of  safety  and  the  like,  which  might 
render  the  apparent  want  of  care  of  a  papsenger  the  negligence  of 
the  carrier.  It  is  said  in  Pierce,  R.  K.  329,""tliat  "  the  direction, 
invitation,  or  aBsuranee  of  safety  given  by  a  servant  of  the  com- 
pany may  so  qualify  a  plaintiff's  net  as  tu  relieve  it  of  tlic  quality 
of  negli<j;ence  which  it  would  otherwise  h:ive.  This  has  been 
more  generally  held  in  the  case  of  passengei's  wlio  are  in  ciiarge  of 
tho  company,  and  have  a  right  to  assume  that  its  servants  know 
what  is  safe  ....  But  notwithstanding  snch  direction,  in- 
vitation, or  assni-ance,  the  plaintifi  will  not  be  excnscd  in  following 
it,  if  tlio  act  involves  a  rccklef-s  exposure  of  himself,  or  is  one 
which  a  man  of  ordinary  prndenco  would  not  do."  Deering,  in 
his  Law  of  Negligence,  §  24,  says:  "One  who  obeys  the  instruc- 
tions or  directions  of  anotiier  upon  whose  assurance  lie  has  a  right 
to  rely,  cannot  bo  charged  with  contribotory  negligence  at  the  in- 
stance of  such  other,  in  an  action  against  him  for  injuries  received 
in  attempting  to  follow  ont  tlie  instructions;"  citing  in  support  of 


^d  by  Google 


PASSENGER  ON  ENOIKB— HEOUOEHOE.  65 

the  text,  Bai]ro.td  Go.  v.  McCloBkev,  23  Va.  St.  536;  Railroad  Co. 
V.  Ueiidei-son,  51  Pa.  St.  315;  R;u!i-oad  Co.  v.  CHutiell,  37  Ark. 
519;  Riilroad  Co.  v.  Kelly,  92  Iiid.  371;  Pool  v.  Railway  Co.,  63 
"Wis.  657;  Cliance  V.  Railway  Co.,  10  Mo.  App.  367. 

In  Wiiton  v.  Railroad  Co.,  reported  in  107  Ma68.  108,  the 
plaintiff,  a  girl  nine  years  old,  vas  walking  with  other  girls  along 
defendant's  tmck,  and  one  of  defendant's  engines  came  slowly  along 
the  track,  and  tlie  driver  beckoned  to  the  girls  toget  on,  which  tliev 
did.  By  a  jerk  of  the  oar  the  plaintiff  Tost  her  balance,  and  fell 
and  was  injured.  It  was  admitted  in  that  case,  that  plaintiff  waa 
not  a  paeectiger  for  hire.  The  court  Ba3'B:  "In  accepting  the 
invitation,  and  getting  npon  the  oar,  we  think  she  [plaintiff]  was 
not  a  trespasser,  there  being  no  evidence  of  collasion  between  her 
and  the  driver  to  defrand  the  corporation.  A  master  is  bound  by 
the  acts  of  Iiis  servants  in  the  conrse  of  hie  employment.  ...  It, 
in  violation  of  liis  instrnctions,  he  permits  persons  to  ride  without 
pay,  he  is  gniUv  of  a  breach  of  duty  ae  a  servant.  Such  act  is  not 
one  outside  of  his  dnty,  hnt  is  an  act  within  the  general  scope  of 
his  agency,  for  which  he  ie  responsilile  to  his  master.  In  the  case 
at  bar  the  invitation  to  the  plaintiff  to  ride  was  an  act  within  the 
general  scope  of  the  driver's  employment,  and  if  she  accepted  it 
iiinocently,  slie  was  not  a  tresi^aser.  It  is  immaterial  that  the 
driver  was  acting  contrary  to  his  instrnctions," 

If  the  deceased,  at  the  time  of  the  accident,  was  in  a  place  of 

Cenl,  that  fact  was  known  to  appellant's  servants.  If  he  was  there 
y  their  invitation  or  direction,  the  law  wonld  require  of  them  the 
exercise  of  a  degree  of  care  corresponding  to  the  danger  to  which 
tliey  had  thns  exposed  him.  The  care  ordinarily  i-eqnired  of  a 
carrier  of  passengers  is  to  be  measured  by  the  known  peril  to  the 
party  it  nndertakes  to  carry.  The  proof  shows  that  the  making  of 
a  rnnning  switch  is  nsually  attended  with  danger,  and  would  be 
especially  so  to  persons  standing  upon  the  foot-board  of  the  engine. 
This  was  known  to  appellant's  servants,  bnt  is  not  shown  to  have 
been  known  by  deceased ;  nor  is  it  shown  that  he  knew  or  was  told 
8  rnnning  switch  was  to  be  made.  It  became  the  dnty,  then,  of 
the  servants  of  appellant  to  advise  deceased  of  the  facts  before 
attempting  the  rnnning  switch,  so  that  be  might  have  taken  estra 
precaution,  or  have  gotten  off  the  engine  before  the  switch  was 
attempted. 

In  tins  connection  the  eighth  instmction  asked  by  appellant  is  as 
follows:  "The  jury  are  instructed  that,  if  they  believe  from  the 
evidence  that  the  said  Nelson  Brown  got  npon  the  car  in 
question  for  the  purpose  of  riding  to  the  stock-yards, 
and  the  engine  was  drawing  a  car  loaded  with  stock,  and  that 
neither  said  engine  nor  car  was  run  or  operated  for  the  purpose  of 
SI  A.  A  B.  R.  Cm.— 5 


^d  by  Google 


66  LAEX  .BHOKE  AKD   M.  S.  B.  OO.  V.  BBOWK. 

eanying  paBBonf^n,  then  the  defendant  was  not  bound  to  ran  or 
operate  eaid  engine  and  car  in  any  otlier  than  the  nsTial  and  ordinary 
manoflr  for  the  conveyance  of  stock,  and  tlio  said  Nelson  Brown 
aBBnmed  the  ordinary  perils  attending  the  operation  of  the  same  in 
the  nenal  manner.  And  if  the  jnry  believe  from  the  evidence  tliat 
the  same  was  operated  in  the  asnal  and  ordinary  manner,  and  thtft 
the  injniy  was  the  resnlt  of  the  nsnal  and  ordinary  peril  attending 
suck  operation  tlien  the  plaintiff  cannot  recover."  Wliichinstmtv 
lioD  the  ooort  modified  oy  inserting  at  the  star,  the  words,  "  and 
not  throBgh  the  careleesness  and  negligence  of  the  servants  of  the 
defendant."  T)ie  modification  is  claimed  to  have  been  error.  We 
do  not  Uiink  it  was  erroneons.  As  originally  drawn  the  instraction 
left  oot  of  -consideration  tlie  qnestion  of  defendant's  negligence. 
There  was  evicienoe  that  attendants  of  stock  were  carried  to  the 
stock-yards  on  snch  trains,  and  that  the  deceased  was  upon  this 
•ngine  by  direction  of  those  in  charge  of  it.  The  court  might 
very  properly,  in  view  of  this  evidence,  nave  refused  this  instrnction 
altt^tber.  If  the  train  was  not  operated  for  the  purpose  of 
earrying  passengers,  yet  if  those  in  charge  thereof  assumed  to  carry 
tiie  deceased  thereon,  and  he  was  upon  tlie  same  by  tlieir  invitation 
and  direction,  it  cannot  be  said  as  a  matter  of  law  they  were  not 
bonnd'tooperate  thesamein  any  other  than  the"nEnal  and  ordinary 
manner  for  the  conveyance  of  stook."  Under  such  circnmBtancea 
they  were  bound  to  operate  the  train  in  such  manner  ae  due  care 
and  caution  would  an^eet  for  the  safety  of  the  passenger.  Even 
if  deceased  was  wrongmlly  upon  the  engine,  and  was  permitted  to 
remain  there,  that  would  not  justify  gross  negligence.in  operating 
the  en^ne  and  car,  or  the  want  of  the  exercise  of  ordinary  care  to 
prevent  injury  to  him. 

It  is  also  nrged  that  the  court  erred  in  refusing  to  admit  evidenoe 
'tending  to  show  that  the  engineer  or  yard-master  of  appellant  had 
no  authority  to  allow  persons,  other  than  employees,  to  ride  on 

engines  or  freiglit  ears  of  which  they  were  in  chai^. 
OF  TOB   c«t-  And  the  second,  third,  fonrth,  nnd  sixth  of  rippcllant's 

instructions  related  to  this  question,  and  were  rcfnscd 
by  the  conrt,  which  is  also  assigned  for  error.  Tlie  rnles  of  the 
company  were  admitted  in  evidence.  The  private  rules  and  rega- 
lations  of  a  railway  company,  prescribing  the  dnty  and  power  of 
its  servants  and  employees,  cannot  affect  pei-sons  having  no  notice 
of  thom.  It  is  said  in  Pierce,  R.  R.,  page  277 :  "  The  com  pany  is 
liable  for  the  acts  of  its  servants  in  the  course  of  their  eniploynieni, 
both  in  tlio  rightful  use  and  abuse  of  the  power  conferred  on  them ; 
and  where  they  keep  within  the  conree  of  their  employment  it  is 
responsible  for  their  negligence  or  wionrrfnl  act,  altliongh  they  are 
acting  against  its  instructions,  or  even  wilfully."  See,  to  the  same 
effect,  Wilton  v.  Raili'oad  Co.,  supra;  Same  v.  Same,  125  Uass. 


^d  by  Google 


PASasNOEB  ON  BNOUfS—HBOLIOEKCB.  07 

130 ;  HifKinB  «.  Tampike  &  K.  Co.,  46  N.  Y.  23 ;  Sheao.  Railroad 
Co.,  63  NT  T.  185  ;  Cohen  v.  Railroad  Co.,  69  N.  Y.  170 ;  Railroad 
•Co.  e.  Rodgera,  38  lud.  116. 

Tliose  dealing  with  the  company  can  only  jadge  of  tlie  power 
^ven  to  ite  agetite  and  its  servants  from  appearances,  and  the  poai- 
tioQs  and  acts  of  sncli  eoiploTeca.  Uiidei'  tlie  circnnietauces  in  this 
«a8e,  the  deceased  might  well  have  eupposed  that  tliose  in  charge 
of  tlie  switch-engine  and  hie  car  of  stock  had  authority  from  the 
company  to  act  for  it  in  the  hnsiness  in  which  they  were  engaged. 
There  was  evidence  tending  to  show,  as  found  by  the  jnry  .maap- 
pellate  court,  as  has  been  seen,  that  the  deceased  had  a  right  to  be 
transported  over  appellant's  road  to  the' stock-yards.  On  ariiral  at 
Forty-third  street  this  was  but  partially  performed,  and  the  engineer 
and  switchman  were  carrying  ont  and  completing  this  contract  of 
carriage, and  were  itpuarently  in  the  discharge  of  tliat  duty.  Seeing 
the  cauoose  car  in  winch  he  had  reached  Forty-third  street  detacheo, 
and  the  switch-engine  attached  to  his  car  of  hoes,  and  it  being  the 
Hjostom  of  appellant  to  tuke  the  shippet«  of  stock  npon  such  car  or 
«ngine,  he  had  the  right  to  suppose,  if  he  knew  nothing  to  the 
-contrary,  that  those  in  charge  of  the  engine  and  of  his 
4tock  wore  authorized  to  act  for  appellant.  He  was  SMo^mniL^ 
not  bound  as  a  matter  of  law  to  stop  and  inqnii'e  as  to 
the  extent  of  their  authority  to  act.  Raili-oad  Co.  V.  Diilby,  19  III. 
■353.  It  is  also  nr)*ed  that  the  trial  court  erred  in  admitting  evidence 
•ot  the  custom  of  appellant  in  allowing  shippers  of  live-stock  to  ride 
upon  its  engines  and  cars  containing  stock  from  Forty-thii'd  street 
to  the  Union  stock-yards.  It  is  averred  in  the  declaration  that 
•deceased  had  a  right  to  be  carried,  with  his  stock,  over  appellant's 
road  to  the  Union  stock-yards,  and  that  he  was  rightfully,  and  by 
■direction  of  appellant,  by  its  servants,  npon  the  foot-bo.ird  of  the 
«ngine,  in  transit  to  his  destination  nt  the  time  of  hie  injury.  It  is 
■shown  that  uenally  a  shipper's  pass  is  given,  but  it',  as  part  of  the 
■contmct  of  shipment  of  stock,  an  attendant  ie  to  be  carried,  his 
right  to  passage  would  be  as  perfect  if  no  pass  was  given  as  if  that 
formality  had  been  observed.  Tlie  averment  of  the  declamtion  is 
bro.id  enough  to  admit  any  legitimate  proof  tending  to  show  the 
right  of  the  deceased  to  be  upon  the  engine  at  the  time  of  the 
alleged  injury.  If  it  was  the  usual  cuetom  or  habit  of  the  carrier 
to  transport  the  eiiippere  of  live-stock  in  this  way,  and  the  deceased 
knew  of  such  custom,  we  ai-e  not  prepared  to  gay  tliat  evidence 
tending  to  show  the  habit  of  the  company  in  this  regai-d  would  not 
be  competent  as  tending  tu  show  the  authority  of  the  servants  of 
appellant  in  charge  to  thus  carry  the  deceaeed,  as  well  as  tending 
to  eliow  that  the  deceased,  at  the  time  of  the  accident,  was  a  pas- 
.«enger  for  reward.    We  think  the  evidence  was  competent. 

Appellant  ofiered  to  prove  there  wae  a  line  of  public  street  cars 


^d  by  Google 


68  '        I^KE  SHORE  AND  H.  B.  B.  CO.  V.  BBOWN. 

from  its  tracks  at  Forty-tliii-d  Btreet  to  the  Union  stock-j-ardsr 
which,  upon  objection,  tlie  court  refnsed  to  allow.  In  view  of  the 
^^  166116  tliisevidence  was  wholly  imninterial.     If  the  d& 

KODBor  nuT-  censed  lind  engnged  pnssage  on  nppcll nut's  road  to  the 
stock-yai'de,  mid  had  a  riglit  to  bo  carried  tlierc  as  aU 
leged,  he  was  nndei*  no  obligation  at  his  own  expense  to  pnt-sne  ft 
differentroute.  If  tlie  compnr.y  furnished  a  dungei-ous  mode,  and 
if  its  servants  in  clinvge,  with  appnrent  authority,  directed  the  de- 
ceased to  take  passage  on  its  engine,  it  cannot  escape  liability  for 
an  injnry  to  liim  through  the  negligence  or  ciircIessneES  of  its  ser- 
vants, by  showing  that  lie  might  have  procnred  a  passage  by  some 
other  line  of  travel.  It  cannot  be  said  that  a  party  who  engages- 
passnge  on  a  freight  train,  and  is  injured  while  in  the  exercise  of 
ordinary  care,  throngh  the  negligence  of  the  servants  opei-ating- 
the  same,  is  chargeable  with  such  contributory  negligence  as  will 
defeat  hie  right  of  i-ecovery,  inci-ely  because  a  passenger  twin  or 
fiti'cet-uir  line  might  li:ivo  afiorded  liim  a  safer  mode  of  travel. 
AssHuiing  the  deceased  had  a  riglit  to  bo  safely  can-ied  by  appel- 
lant to  the  stock-Viirds,  lie  liad  a  right  to  snpposc  that  lie  wonld 
not  be  assigned  to  n  place  of  extra  liazard  or  peril,  and  that,  to- 
whatever  place  assigned,  i^eiisonahle  care  would  be  exercised  to 
protect  hiin  from  injnry,  Snooner  v.  Railroad  Co.,  54  N.  Y.  230. 
It  is  manifest,  when  deceased  got  upon  the  engine  by  direction  of 
the  servants  of  appellant,  he  did  not  know  that  a  running  switch 
was  to  be  made,' and  also  that  the  injnry  occurred  in  consequents 
of  the  attempt  to  make  gnch  switch.  As  we  have  seen,  if  he  was 
in  a  hazardous  position,  and  the  danger  to  him  was  iucreased  by 
the  manner  of  the  operation  of  the  engine,  he  should  have  been  in- 
formed in  time  to  have  enabled  him  to  seek  a  place  of  grew  ter  safety 
or  to  have  left  tho  eni^ine.  What  is  here  said  will  dispose  of  the 
alleged  error  in  refnsing  defendant's  seventeenth  inetruction,  which 
was  to  tho  effect  that  if  there  was  a  street-car  line  that  deceased 
might  have  taken  to  reach  his  destination,  and  he  knew  of  it,  and 
that  he  attempted  to  ride  on  the  foot-board  of  the  engine,  and  was 
injured,  that  plaintiff  could  not  recover.  This  instruction  is  ob- 
jectionable, in  ignoring  entirely  the  question  of  defendant's  negli- 
gence, and  in  assuming  that  the  facts  therein  stated  constitute,  as 
a  matter  of  law,  snch  negligence  as  would  preclude  a  recovery . 

It  is  also  nrg^d  that  the  court  erred  io  not  allowing  appellant  to- 
provo  by  Mr,  Amsden  that  the  position  on  the  foot  board  of  tho 
engine  was  dangei-uus. ,  The  witnesses  Payne  and  Smith  had  both 
testitied  to  that  fact,  and  it  was  nowhere  controverted  in  the  case. 
The  refn&il,  therefore,  to  permit  ap]iellaut  to  accumulate  evidence 
on  this  point  would  not  be  revei'siblu  error. 

It  is  also  nrged  that  the  court  erred  in  giving  the  plaintiff's 
second  and  third  instractione.   Three  objections  are  nrgea  to  these 


^d  by  Google 


PA3s£NQEB  ON  EK02NB — NBOUGENOE.  69 

iiietrnctionB  :  (1)  That  they  anthorize  a  recovery  if  the  deceased 

was  in    tlie   exerciss  of   ordiiiui'y   care  wliile  on   the      

«ngitie,  excluding,  it  is  said,  a  boiisiderjtion  of  liis  neg-  ™™^- 

ligenceiii  placing  biinself  in  tiiat  poEition  ;  (2)  that  the  instrac- 
tions  assniae  tlmt  tlie  defendant's  servuntB  were  guilty  of  negli- 
gence in  the  rnniiinv  and  handling  of  the  engine ;  and  (3)  that 
tliey  base  the  plaintiff's  riglit  Co  recover  npoti  tiie  negligence  of 
defendant's  servants  in  running  and  iiandliiig  the  engine,  "witli- 
ont  confining  it  to  the  specific  negligence  named  in  the  declura- 
tion."  None  of  tlie  ohjections  are  tenable.  The  instructions  arc  sis 
follows:  *'(2)  The  conrt  instructs  the  jnry  tinitif  they  believefi'om 
the  evidence  tiint  Nelson  Brown,  the  deceased,  was  rightfnlly  on  tlie 
-defendant's  engine,  as  isallegod  in  the  deelanition  in  thiscanse,  and 
that  while  he  was  on  said  engine,  he  was  using  ordinary  031*6  on  his 
part  for  his  personal  safety,  and  was,  by  and  through  the  carelessness 
and  negligence  of  the  defendant's  servants  in  rnnning  and  handling 
-said  engine,  thrown  from  said  engine  and  injured,  from  which  said 
injuries  the  said  Nelson  Brown  died,  then  tlie  jury  should  find  for  the 
plaintiff,  and  give  her  snch  damages  as  tiiey  deem  n  fair  and  just 
^omgiensation  witli  i-eference  to  the  pecuniary  injuries  i-csnlting  from 
such  deatli  to  the  wife  and  next  of  kin  of  the  said  deccasut),  not 
exceeding  five  thouKind  dollare.  (3)  Tlie  court  inetnicte  the  jury 
tliat  if  they  believe  from  the  evidence  that  Nelson  Brown, deceased, 
vas  the  liusband  of  the  piaintiff  In  this  suit,  and  that  the  said  Nel- 
son Brown  was  rigJitfiiUy  upon  tiie  defendant's  engine  by  the  in- 
vitation and  direction  of  the  conductor  and  manager  of  the  same, 
and  ho  was  using  ordinary  care  for  his  safety,  and  was  by  and 
through  the  carelessness  and  negligence  of  the  defendant's  ser- 
TantB  in  running  and  handling  the  said  engine,  thrown  from  the 
«aid  onsriiie  to  the  ground,  and  run  over  by  a  car  and  injured,  from 
'wliieli  mjnries  the  Siiid  Nelson  Brown  afterwards  died,  then  the 
jury  will  find  for  the  plaintiff,  and  assess  her  damages  at  such  sum 
AS  they  believe  from  all  the  evidence  she  has  sustained,  not  exceed- 
ing five  thousand  dollai-s." 

The  jury  were  required  to  find  that  the  deceased  was  rightfully 
■on  the  defendant's  engine  as  alleged  in  the  declai-ation.  In  resjiect 
to  the  second  objection,  tlie  instructions  under  consideration 
wen,t  to  the  jury  witii  many  for  the  appellant,  among  which 
{tlie  sixteenth)  was  the  following:  "The  jury  are  instructed 
that  if  tliey  believe  from  the  evidence  that  a  man  of  ordinary  cai-e 
and  prudence  would  not  ride  nnon  a  locomotive  engine  in  the  po- 
sition and  manner  that  said  Nelson  Brown  was  shown  to  have  been 
riding  at  the  time  of  the  accident,  and  you  further  believe  from 
the  evidence  that  his  injury  was  caused  by  his  not  exercising  ordi- 
nary CiU"e  and  prudence,  ilien  the  plaintiff  cannot  recover.  We 
do  not  think  the  jnry  could  have  anderstood  plaintiff's  instructions 


^d  by  Google 


70  LAKE  SHORE  AHD   M.  8.  B   00.  V.  BROWTC. 

as  holding  that  she  migiit  recover,  altUoDsh  her  intestate  was 
gnilt;  of  nt^ligeiice  in  getting  npon  the  foot-board  of  the  engine, 
or  reinauiiitg  there  up  to  tlie  time  of  the  accident,  and  eGpecinlly 
Eo,  wheQ  coiiBidei-ed  in  cotniection  witli  the  one  above  quoted,  and 
given  for  defendant.  The  qnestion  of  the  negligence  of  defen- 
dant is,  by  pliiintifiTs  instnicttons,  fuii-ly  submitted  to  the  jnrj  aa  a 
qneBtion  of  fsict  to  be  deteruiined  from  the  evidence.  Tliere  is  no 
.  force  in  tlie  tliii-d  objection,  TJie  negligence  charged  was  in  r&- 
epect  of  the  mnnnei-  of  rnnning  and  operating  tlie  engine  in  mak- 
ing the  nuining  switcli.  The  jnry  conid  not  liave  tinderetood 
tlicse  inGtrnctions,  in  the  light  of  the  evidence,  ae  referring  to- 
any  other  acta  of  negligence  tlian  those  cltarged  iu  the  declara- 
tion. 

The  refusal  of  the  ninth  inetrnction  asked  by  appellant  is  also- 
assigned  for  error.  It  was  as  follows;  "The  jnry  are  instrncted 
tiiat  the  defendant  was  under  no  obligation  to  furnish  the  eaid 
Nelson  Brown  transportation  from  its  track  to  the  stock-jardp^ 
and,  in  getting  upon  the  engine  need  for  tlie  ti-ansportation  of  tli« 
car-lojid  of  stock,  for  the  purpose  of  riding  to  the  stock-ynrde,  iie 
assumed  the  ordinary  risks  and  perils  of  that  mode  of  travel ;  and 
if  the  jury  believe  from  the  evidence  that  his  injury  was  the  result 
of  the  Qsnal  and  ordinary  peril  attending  such  mode  of  trave), 
then  the  plaintiff  cannot  recover."  There  \vaB,  at  least,  evidence 
tending  to  shovr  that  appelhmt  was  to  carry  tho  deceased  to  eneb 
yai'ds,  and  the  instruction  was  fiuilty  in  assuming  the  contrary  a» 
a  matter  of  law.     The  instrnction  was  moditied  by  submitting  the 

auestion  of  the  obligation  of  appellant  to  fnrnisli  transportation  of 
le  deceased  to  the  stock-yards  to  the  jnry,  to  be  found  by  them 
opon  the  evidence,  and  also  submitting  to  the  jmy  the  qnestion  of 
the  negligence  of  appelhmt  in  causing  the  injury  to  the  deceased. 
In  this  there  was  no  error. 

The  fifteenth  instruction,  as  asked,  was  as  follows :  "  The  jniy 
are  instructed  that  if  the  said  Nelson  Brawn  intended  to  ride  npon 
the  engine  or  ear,  common  prudence  dictated  tiiat  he  should  pot 
bimsc^lf  in  the  safest  place  possible,  and  if  the  jury  believe  from  the 
evidence  that  it  was  obvious  to  a  person  of  ordinary  prudence  that 
tho  place  where  said  Brown  stationed  himself  to  riiie  was  mucb 
more  dangerous  than  the  position  on  the  top  of  the  car,  then  lie  wa» 
guilty  of  negligence,  and  tiie  plaintiff  cannot  recover."  This  instrnc- 
tion was  moditied  and  given,  and  it  is  not  claimed  that  the  modifi- 
cation is  erroneous;  but  it  is  said  that  the  instrnction  should  been 
given  as  asked,  and  that  its  modiflcation  was  therefore  error.  "What 
would  have  been  "the  safest  place  possible,"  is  a  matter  about 
which  men  equally  prudent  might  widely  differ.  Therefore  what 
common  prudence  dictates  in  a  particular  case  is  ordinarily  a  ques- 
tion of  fact.    In  addition  to  thi^  the  instruction,  as  asked,  wholl;f 


^d  by  Google 


PA88BNOEB  ON   mtQlTSE — NEOLIOENOE.  71 

igaoreB  the  question  wLetlier  the  deceased  did  not  take  the  poeitioa 
he  did  by  dii'ectioTi  of  appellant's  servanta  in  charge  of  tlie  train, 
and  of  tiieir  negligence  in  operating  tiie  same.  The  moditication 
properly  left  tlie  question  of  Brown's  negli^nce  and  that  of  the 
appellant  to  the  jury,  to  he  determined  by  them  from  the  evidence. 
What  has  already  been  said  will  diBpose  of  the  inoditicatioa  made 
to  appellant's  nineteenth  and  twentietli  instrnctions. 

Tlie  first,  second,  third,  tifch,  sixth,  seventh,  fonrteenth,  serea- 
teentli,  and  eighteenth  instructions  asked  by  appoUaut  were  re- 
fused, and  the  propriety  of  this  ruling  is  also  questioned.  Aa 
alrendy  said  some  of  them  proceed  npon  tbo  theory  that  the  acts 
of  Brown,  in  being  npon  the  foot-board  of  the  engine,  was  sach 
contributory  negligence  as  would,  as  a  matter  of  law,  prevent  a  re- 
covery. What  liaa  been  said  wilt  dispense  with  the  necessity  of 
their  separate  consideration.  The  £i-8C  instruction,  however,  is  aa 
follows:  "Tlie  jury  are  instructed  tliat  the  evidence  in  tlie  case 
will  not  sastain  a  verdict  for  tlie  plaintiff,  and  their  verdict  should 
therefore  be  for  the  defendant."  Siicli  an  insCrnction  will  not  be 
given  where  there  is  evidence  tending  to  prove  the  material  facta 
necessary  to  maintain  tiie  issnes  for  plaintiff,  from  which  the  jury 
may  find  tlie  facts  essential  to  a  recovery.  There  being,  as  we 
have  seen,  evidence  in  tiiis  caae  tending  to  prove  the  issnes  on  the 
partof  the  plaintiff,  the  court  projjerly  refnsed  the  instrnction. 

The  second  refused  instruction,  which  was  to  the  effect  that,  if 
tlie  jury  believed  from  the  evidence  that  the  rntes  of  the  company 
forbade  the  engineer  in  its  service  to  allow  any  person  not  in  iu 
employment  to  ride  npon  its  engine,  etc.,  Chen  the  deceased  was 
Dot  rightfully  npon  the  engine,  and  the  plaintiff  could  not  recover, 
ftiid  4IS0  the  third,  fourth,  and  sixth  of  appellant's  series  refused 
have  been  heretofore  considered.  Each  of  these  instructions  ignored 
the  knowledge  of  die  deceased  of  the  rnles  of  the  company,  and  of 
the  apparent  authority-  of  the  engineer  to  act  in  respect  of  the 
matter  therein  mentioned;  and  preclude  a  recovery,  althongh  the 
injury  may  have  been  the  i-esult  of  the  gross  negligence  of  the 
company,  and  the  deceased  may,  under  the  circumstances  shown  by 
the  evidence,  have  been  in  the  exercise  of  ordinary  caie. 

Ap{>e]1ant'8  fifth  instruction  is  as  follows:  "  It  is  alleged  and 

firoved  that  the  deceased  undertook  to  ride  on  defendant's  engine 
rom  the  m.iin  line  of  defendant's  road  to  the  Union  Stock-yards. 
The  court  instructs  you,  as  a  matter  of  law,  that  in  this  position  he 
was  not  a  passenger  in  defendant's  train,  and  conld  not  claim  any 
of  the  rigtits  of  a  passenger,  and  it  will  make  no  difference  that 
the  engineer's  helper  invited  or  permitted  him  to  ride  on  the  en- 
eine ;  if  he  did  permit  or  invite  him  to  do  so,  he  knew  it  was  not 
uie  place  fnrnished  by  the  defendant's  company  for  paesengers  to 
ride,  and  in  taking  that  position  lie  assumed  all  the  risks  and  perils 


^d  by  Google 


7^  LAKE  BHOKB  AND   H.  B.  B.  CO.  V.  BBOWIT. 

incident  to  that  method  of  traTel."  It  cannot  be  said,  as  a  matter 
of  law,  that  the  deceased  was  not  a  pasEenf^r  on  tlio  defendant^! 
train.  Wlietlier  he  was  a  passenger  depended  upon  the  facts 
proved.  If  tlie  company  eave  the  deceased  a  pnss  to  the  stock- 
yards, or  eneugcd  to  take  liim  there  over  ita  roaa,  and  its  servants, 
elothed  with  apparent  anthority  to  act  for  the  company  in  tliat 
regard,  dii'ected  iiiin  to  take  passnge  on  the  engine,  nnd  nndertook 
to  carry  him  on  the  same,  these  facts  were  pi-o"pei-  to  he  considered 
by  the  jury  in  determining  whether  the  dece;ised  was  a  ))asGenger 
or  not,  "SV"hile  the  company  may  not,  npon  tlieir  freight  trains  or 
locomotives,  ordinarily  take  passengci's,  or  hold  thum  ont  to  the 
pubhc  for  tiiat  purpose,  yet,  if  the  company,  throngli  its  anthorized 
^ents,  accept  a  passenger  for  reward  npon  snch  trains  or  cii^^iiies, 
there  is  neither  reason  nor  authority  fur  holding  that  they  are  not 
bonnd  to  oxeiciso  rensonablo  care  and  diligence  for  the  safety  of 
sncli  passengers.     Tlie  instruction  was  properly  refused. 

The  seventh  instruction  was  properly  I'cfused  liecaiiee  it  made 
the  plaintiff's  right  of  recovery  depend  npon  the  antliority  of  the 
switchman  or  engineer  to  direct  the  deceased  to  take  passage  upon 
theengine,  without  reference  to  his  !)ppareiit  auihority,  and  whether 
the  decensed  knew  of  snch  want  of  antliority  or  not. 

Appellant's  fourteenth  iitstrnction  is  sntjstnntially  identical  with 
the  fifteenth,  as  asked,  which  has  been  heretofore  considered,  and 
for  the  same  reason  there  assigned  was  properly  ref  nsod.  Wlicther 
the  position  occupied  by  him  njion  tlie  foot-boai-d  of  the  engine 
was  not  absolutely  tlie  safest  place  he  could  occnpy  u]ion  that  train 
matters  not,  if  he  was  not,  under  the  circumstances  shown,  guilty 
of  negligence  in  accepting  it.  It  does  not  necessarily  follow  that 
a  passenger  guilty  of  some  negligence,  slight  in  its  character,  c&n- 
not  recover  for  the  pereonal  injury  resnlting  from  the  gross  neg- 
ligence of  tiie  carrier.  ERltroad  Co.  v.  Johnson,  116  111.  206; 
Iron  &  Steel  Co.  v.  Martin,  511  III.  338;  lifdiing-stock  Co.  w.Wilder, 
116  III.  100.  This  instruction  also  entirely  ignores  tlie  alleged  car» 
lessness  or  negligence  of  appellant's  servants  in  operating  the 
engine.  The  same  objection  obtains  to  appellant's  eighteenth  r^ 
fused  iustrnction. 

Taking  into  consideration  the  peculiar  facts  of  this  case,  to  which 
the  law  lias  been  applied  by  the  trial  court  with  substantial  accu- 
racy, we  find  no  snch  error  in  the  record  as  will  authorize  a  re- 
versal, and  the  judgment  of  the  appellate  court  will  therefore  be 
affirmed. 

Cbaio,  J.,  dissents. 

PaiMUger  Riding  in  Dangarout  Placo.— It  is  contributory  Degllgence  la  a 
passenger  to  occupy  voluntarily  a  position  of  danger  on  the  train,  where  the 
position  has  contributed  to  his  injur;  and  waa,  in  itself,  so  dangerous  that  a 
man  of  ordinary  prudence  would  not  have  taken  it.     H.  A  T.  C.  R.  «.  Clem- 


i,z.dbvG00gle 


FABSENOER  OK   EN02ICB — NBOLIQENOE.  78 

nioiw,5STez.  88:  a.  c.,6  Am.  A  Ens.  R.R  Cu.  896;  Higgioi  v.  H.  *  St  J. 
R.86  Ho.  418;  Keatuckf  Cent.  R.  Co.  •.  Thomu,  79  E;.  ISO. 

But,  if  the  defeadkDt  hM  by  iu  own  net  tbrown  the  pUintiS  off  hia  gatd 
aod  givcD  him  good  reuon  to  believe  thftt  vigilaiice  wu  not  needed,  the 
Uck  of  inch  vigilftnce  on  the  part  of  plaintiff  ii  no  bar  to  hU  claim  for  dam- 
agea.  Fowler  t>.  Baltimore,  etc.,R.  Co.,  18  W.  Va„  579;  a.  c,  8  Am.  AEog. 
R.  R  Cas.  480;  Penaa.  R.  Co.  e.  Ogier,  25  Pa.  Bt.  00;  Broat  v.  Hndaoo  R. 
Co..  85  N.  y.  B. 

Tbua.  in  Fowler  «.  Baltimore,  ate.,  R.  Co.,  8  Am.  ft  Eng.  R  R  Cat.  480, 
plaintiff  waa  on  a  atock  train  in  charge  of  cattle.  Jiut  before  the  ezpreti 
train  going  west  came  up  he  left  the  ^^wote  to  look  after  the  stock,  in  pur- 
euancn  of  an  aaauraDce  from  the  conductor  that  the  stock  needed  attention 
«nd  hia  train  was  entitled  to  the  main  track.  A  few  minutes  afterward, 
while  attending  to  the  stock,  the  express  trvin  swept  by  the  siding  without 
giving  an;  signal  and  plaintiff  was  injured.  Beld,  that  he  had  not  been  guilty 
of  contributory  negligence  and  could  recover.  Johnson,  J.,  said:  The 
plaintiff  "  was  thrown  completely  oS  hia  guard  by  the  act  of  the  defeodant 
«adaupp09cd  there  was  no  danger,  and  he  was  justified  in  apprehending  none; 
«nd  apprehending  no  danger  under  these  circumstuucus  he  was  not,  guilty  of 
negligence,  if  he  did  nut  look  for  a  train.  There  was  no  necessity  to  look. 
The  conductor  told  him  there  was  no  danger ;  in  effect,  that  while  be  went  to 
look  nrter  the  cnttle  it  was  nnt  possDilc  Tor  a  train  to  pass." 

OeoupylDK  Parlloui  Position  by  Direction  or  Consent  of  Conductor. — 
Where  a  passenger  rides  in  a  known  plnce  of  diinger  by  tlio  direction  or  in- 
vitation of  the  conductor,  but  in  violation  of  the  company's  rules,  in  cose  of 
the  passenger's  injury  the  question  arises,  ha«  he  been  guilty  of  contributory 
negligence  such  as  will  relieve  the  company  of  responsibility,  or  is  the  assent 
«t  the  conductor  sufficient  to  charge  the  company  with  the  consequences  of 
bis  act. 

Oeneral  Rule, — ^The  courts  generally  hold  that  where  the  passeoRer  aa- 
mmcs  a  position  of  danger  by  the  invitation  of  the  conductor,  and  is  injured 
while  in  that  position,  he  is  not  held  to  be  guilty  of  contributory  negligence. 
Burns  o,  BellefontalneR  Co.,  00  Ho.  139;  Clark  e.  Eighth  Ave.  Co..  86  N.T. 
183;  Kentucky  R  Co.  e.  Thomas,  ]  Am.  &  Eng.  R  R  Cas.  79;  O'Donnel  s. 
Allegheny,  etc..  R.  Co.,  Q9  Pa.  St.  230;  Jacobus  e.  St.  Paul,  etc.,  R.  Co.  20 
Minn.  123;  L.  R  AFt.  8.  R  o.  Miles,  40  Ark.  298;  Kentucky  Cent.  R.  Co.*. 
Thomas,  79  Ky.  ]6l>.  185;  Lawson  e.  Chicago,  etc.,  R.  Co.,  24  N.  W.  Rep. 
418;  Dunn  tr.  Grand  Trunk  R  Co.,  58  He.  I8T. 

In  Kentucky  Cent.  R  Co.  e.  Thomas,  79  Ky.  160,  the  court  *ay:  "If  the 
nature  of  the  accident  be  such  that  the  danger  of  injury  was  not  enhanced 
in  consequence  of  the  position  occupied  b;  the  passenger,  or  if  the  accident 
vas  of  such  a  nature  as  was  likely  to  occur  in  one  portion  of  the  train  as 
•DOther.  or  if  he  occupied  the  place  with  the  knowledge  or  consent  of  the 
conductor,  liis  riffht  of  recovery  will  not  be  affected  by  the  fact  that  he  was 
ftt  an  improper  place." 

Passengers  are  warranted  in  obeying  the  directions  of  the  agents  and  serv- 
aatsoftliecarriers,  unless  such  obedience  leads  to  known  danger,  which  a  pru- 
dent man  would  not  encounter.     Penna.  R.  Co.  e.  Houghland,  78  Ind,  206; 
Louisville,  etc.,   R.   Co.  e.  Kclley,  18  Am.   &  Eng.  R.   R.   Cos.    1;    Pool  v.    - 
Chicago,  etc..  R  Co.,  56  Wis.  237. 

In  Nashville,  etc.,  R  Go.  e.  Erwin,  S  Am.  &  Eng.  R  R  Cos.  485,  E.  and 
ft  friend  arrived  at  the  station  just  after  the  train  depiirted.  An  employee 
of  the  company  who  had  charge  of  the  trains,  trainmen  and  rolling-stock, 
invited  them  lo  fj^et  on  an  engine  which  was  at  the  stntioD.  aad  would  tiike 
them  to  the  train  which  would  atop  at  a  bridge  a  short  distance  from  tho 
Bt&tioo.    The  engine  overtook  the  train  and  ran  into  it,  oud  E.  to  avoid  the 


^d  by  Google 


74  I.AEB  SHORE  AND   M.  B.  R.  OU.  V.  BROWlf, 

<Ung«r  jumped  from  the  engias  and  wu  injured,  ^id,  thkt  tbe  oompttay 
WU  liable  for  the  injuries  fae  received. 

A  vomnn,  who  had  purchued  a  railroad  ticket,  «u  seated  U  a  stujoa 
with  two  platforms,  one  oa  eltber  side  of  tlie  traclc;  she  was  told  bj  the 
■tation  agent  to  ccosa  the  track,  as  the  train  she  was  to  take  was  approacb- 
iog.  While  in  the  act  of  crossiag  she  was  killed  b;  the  approachiog  train. 
Held,  thiiC  if  at  the  time  the  Station  sgent  told  her  tocroas,  she  had  lime  to  do 
BO  in  safetj  and  unneccsaarilj  delated,  the  company  was  not  libble,  but  that  if 
she  bad  not  sufficient  time  the  compaoy  was  liable.  Baltimore,  etc.,  B.  Co. 
e.  State  of  Marjlaad.  21  Am.  &  Eng.  R.  It.  Cos.  803. 

Contrary  View.— But,  on  the  other  side,  it  has  been  held  tbat  a  conductor 
cannot  in  violation  of  a  known  rule  of  llie  company,  intended  for  tbe  aafetj 
of  passengers,  license  a  passenger  to  occupy  a  place  of  danger,  so  aa  to  maka 
the  Gom|Hia;  responsible  in  case  of  injury.  Penna.  R.  Co.  e.  Langdon,  M 
Pa.  St.  91 ;  s.  c.  1  Am.  &  Eng.  B.  B.  Cas.  87 ;  Bobertson  e.  Erie  R.  Co.,  S2 
Barb.  (N.  Y.)  91;  Railroad  Co.  t>.  Jones,  9S  TJ.  8.  4S9;  Hickey  «.  Boston, 
etc.,  R.  Co.,  U  Allen  (Mass.),  439;  Downey  e.  Hcndiic,  46  Mich.  498.  GOl. 

In  Railroad  Co.  «.  Jones,  B3  U.  S.  489,  the  plaintiff  was  one  of  a  party  of 
men  employed  by  the  company  in  repairing  its  roadway.  They  were  usually 
conveyed  to  tuid  from  their  work  in  a  box-car  assigned  to  tiieir  use.  One 
evening,  when  returning  from  work,  being  told  bj  the  director  of  the  labor- 
ers to  jump  on  anywhere,  he  rode  on  the  pilot  of  the  engine,  where  previously 
he  hnd  been  forbidden  to  ride,  and  was  injured  through  the  negligence  of  the 
CompiLoy.  Held,  that  a^  he  had  not  used  ordinary  care  be  could  not  recovec, 
Mr.  Justice  Swaype  said:  "The  plaintiff  had  been  warned  against  riding  on 
the  pilot  and  forbidden  to  do  so.  It  was  next  to  tbe  cow-cat<!her,  and 
obviously  a  place  of  peril,  especially  in  case  of  collision.  There  was  roo^ 
for  him  in  the  box-car.  He  should  have  taken  his  place  there.  He  could 
bave  gone  in  the  hoE-car  in  as  little  if  not  less  time  than  it  took  to  climb' 
to  tlie  pilot.  The  knowledge,  assent,  or  direction  of  the  company's  igenta 
aa  to  wliat  he  did  is  immaterial.  If  told  to  get  on  anywhere,  that  the  tiaia 
was  late,  and  that  he  must  hurry,  this  was  no  justification  for  taking  sncb  a 
risk.  As  well  might  he  have  obeyed  a  su^estion  to  ride  on  tbe  cow-oabdi^ 
or  put  himself  on  tbe  track  before  the  advancing  wheels  of  the  locomotiva. 
Tbe  company,  although  bound  to  a  high  degree  of  care,  did  not  tDmue  bia 
■afety.  Ho  was  not  an  infant,  nor  non  eompo*.  The  liability  of  tbe  compaaj 
was  conditioned  upon  the  exercise  of  reasonable  and  proper  care  and  caution 
on  his  part.  Without  the  latter,  the  former  could  not  arise.  Ho  and  another 
who  rode  beside  him  were  the  only  persons  hurt  upon  the  train.  All  tboee 
in  the  box-car,  where  he  should  have  been,  were  uninjured.  He  would  have 
escaped  also  if  he  had  been  there.  His  injury  was  due  to  hia  own  reckleM- 
ness  and  folly. 

In  Rucker  e.  Mo.  Pacific  R..  61  Texas.  499;  s.  c,  ai  Am.A  Eng.  R  R  Caa. 
24S,  a  colored  man  coming  to  the  station  of  the  railroad  company  to  take 
passoce  upon  a  train,  seated  himself  upon  the  pilot  of  the  engine,  and  wbeo 
askea  by  the  conductor  what  be  was  doing  there,  replied  that  he  had  not 
enough  money  to  pay  his  fare,  but  had  given  fifty  cents  to  tbe  fireman  tor 
permission  to  ride  there.  After  the  train  started  be  was  thrown  off  and  in- 
jurdd  by  the  engine  running  over  a  hand-car.  The  man  was  of  ordinarj  in- 
telligence. By  the  rules  of  the  company  employees  were  prohibited  from 
allowing  poHsen^cra  to  ride  in  such  a  place.  In  a  suit  for  damagea  against 
tbe  company,  lidd,  that  plaintiff  had  been  guilty  of  such  contributory  negli- 
gence OS  precluded  all  right  of  recovery.  See  also  Doggett  v.  Illinois  Cent. 
R  Co.,  84  Iowa,  384,  where  a  passenger,  who  voluntarily  got  upon  tbe 
tender  of  the  engine  to  ride  when  there  was  a  "  caboose"  car  attached  to 
the  tridn  for  passengers,  was  beld  guilty  of  contributory  negligence. 


^d  by  Google 


PAS8BNGEK  ON   ENOIKE^ — HBGLiaENOB.  75 

Rule  in  P«nn>ylvanim,— -Ta  Pennk.  R.  Go.  v.  Luigdon,  93  Pft.  St.  21, 1  Am. 
AEng.  R.  R.  Cm.  87,  ft  distiDcCion  ia  Doted  in  actioua  agaiaat  railira;  com- 

Sauiea  for  death  oF  or  iojuriei  to  pauen^n,  where  a  Tiolation  bj  the 
eceaaed  or  plaiotiS  ol  the  companj's  rules  is  Mt  upas  a  derenc«,  betneea  » 
rulo  for  the  conveiiieuce  of  the  company  and  one  for  the  aafet;  of  the  poa- 
•enger.  In  the  former  caae,  the  company  would  be  liable,  unleu  the  viola- 
tion was  the  cause  of  the  accident  producinff  the  injury.  In  the  latter,  h  is- 
sufficient  to  relieve  the  company  that  the  injury  was  received  ia  consequenca 
of  the  violation  of  the  rule,  and  in  spite  of  tlis  fact  that'the  negligenc*  of 
tho  compnny's  servant  was  the  cause  of  the  accident. 

Effectof  Conductor's  Direction  to  Puss n^ers  In  Alabama. — The  folio wing- 
rutes  were  laid  down  in  S.  &N.  Ala.  R.  Co.  o.  Scliaufler,  75  Ala.  1S6;  b.  c,  21 
Am  AiEng.  R.R.Cai.40S:  First.  Tlie  advice  or  direction  of  the  conductor 
cannot  be  held  to  excuce  an  act  of  negligence  on  the  part  of  the  pasaeneer, 
which  would  be  so  opposed  to  commun  prudence  as  to  make  it  an  obvious- 
act  of  recklcsanesa  or  folty.  Second.  Where  the  act  ad  vised  to  be  done  is  one- 
where  the  danger  would  not  be  apparent  to  a  person  of  reasonable  prudence, 
and  the  passenger  acts  under  the  influence  of  such  advice,  given  by  the  con- 
ductor in  the  line  of  his  ordinary  dutiea,  it  is  for  the  jury  to  (ay  bow  far 
the  plaintiff's  negligence  may  be  ezcased. 

Engineer  no  Authority  to  permit  Riding  on  Engine. — The  engine-driver  of 
a  railway  company  liaa  no  authority  to  give  permission  to  any  one  to  ride 
npon  his  engine  against  the  rule«  of  the  company.  C.  &  A.  R.  Co.  s.  Michie, 
•8  III.  427;  Chicago,  etc.,  R.  Co.  e,  Oasey.  9  Brodw.  (III.)  083,  039;  Robert- 
■on  0.  N.  T.  A  Brie  R  Co.,  29  Brtrb.  (N.  Y.)  91. 

A  railroad  station  agent  has  no  implied  authority  to  direct  a  passenger 
where  to  ride.     L.  R.  A  Ft.  3.  R.  n.  Hiles,  40  Ark.  398. 

Other  Instances  of  Contributory  Negligence, — Riding  on  railroad  train 
with  arm  out  o(  the  window.  Pittsburgh,  etc.  R.  Co.  o.  McClurg,  S6  Pa.  8t 
M4;  Holbrook  o.  Utica,  etc.,  R.  Co.,  13  N.  Y,  236;  Pittsburgh,  etc.,  B. 
Go.  e.  Andrews,  89  Md.  839.  Compare  Spencer  s.  Milwaukee,  etc.,  R.  Co., 
17  Wis.  487;  Chicago,  etc.,  R.  Co.  v.  Pondrom,  SI  III.  888. 

Rushing  back  into  a  burning  train  to  recover  a  valiae.  Hay  •,  Oreat 
Western  R  Co.,  87  Upper  Canada  Q.  B.  458. 

Climbing  upon  a  crowded  car  platform  of  a  rapidly  moving  train.  Phillip* 
•.  Renaaelaer,  etc.,  R.  Co.,  49  N.  Y.  177. 

Crawling  through  or  under  a  freight  train  which  has  steam  up  and  i» 
blocking  up  the  way.  Chicago,  etc.,  R.  Co.  e.  Coss,  78  111.  894,  Where, 
however,  the  person  passes  under  the  freight  train  by  the  direction  of  the 
eoiiductor,  it  is  for  the  jury  to  say  whether  his  negligence  was  slight  and 
tint  of  the  agents  of  the  company  gross.  Chicago,  etc.,  B.  Co.  t.  BylteL  ft 
Am.  Jb  Eag.  R.  R  Caa.  SO*. 


^d  by  Google 


76      UldSOUBl  PACIFIC   U.  GO.  V.  TEXAS  AND   PACIFIC  B.  CO. 


ICcBOUBi  pAoino  B.  Co. 


Texab  asb  Pacifio  R.  Oo. 
(Adianee  Oatt,  Lovitiana.    Jiau  SI,  1887.) 

Upon  application  to  the  court,  receiTen  will  be  generaltj^  adrised,  and,  in 
parcicuUr  casea,  particular  advice  and  instruction  wili  be  given.  The  advice 
mar  be  decisive  if  there  are  parties  in  interest;  but  if  the  matter  is  a  part* 
Buch  advice  Is  binding  only  on  tlie  receivers,  for  tlie  judge  maj  change  his 
mind  on  hearing-  full  argument. 

Under  section  4  of  the  interstate  commerce  law,  relating  to  the  charges 
for  tlic  long  and  short  haul,  it  seems  that  where  the  circumstances  and  con- 
ditions are  dissimitnr  there  is  no  prohibition;  where  the  circumstances  and 
conditions  are  similar  the  prohibition  attaches;  and  that  where  it  is  difficult 
to  point  out  cloarl;  the  circumstance  or  condition  which  produces  dissimilar- 
ity the  doubt  should  go  in  favor  ot  the  objcet  of  the  law,  and  the  circum- 
Stances  and  conditions  should  be  takoo  as  substantially  similar.  Where  the 
'tircumatauces  and  conditions  are  similar,  or  substantially  similar,  and  tbe 
result  to  tbe  carrier  is  injurious,  relief  can  be  had  only  through  the  com- 
misaion. 

In  the  matter  of  the  petition  of  receivers  for  advice  in  relation 
to  theconatractionof  the  fourth  section  of  the  interetate-comineree 
act. 

W.  W.  Howe  for  receiverB. 

Pabdee,  J. — The  petition  of  the  receivers  of  May  33d,  the  evi- 
dence and  report  of  the  special  master,  and  the  ai^a- 
wbm  cou«i  inentg  Iiave  been  cnrefnlly  considored.  The  natnre  of 
awaOTaa.  tlie  mattere  presented  preclndea  anything  bejond  ex 
partooonaideratiori.  The  receivera  of  tlie  Texas  &  Pa- 
cific R.,  o[>erutin<;  its  lines  of  railwny  nnder  the  ceneral  direction 
<»f  tlie  conrt,  uin  liave  general  advice  and  instractions,  and,  in  par- 
ticnliir  cases,  particnhir  advice  and  iiistrnctions  on  application  to 
the  conrt.  The  v;iliio  of  such  advice  depends :  If  there  are  patties 
in  interest,  and  tliey  have  their  day  in  conrt,  the  advice  nniy  l>e 
<]ecisive.  Bnt  if  the  matter  is  ex  parte  the  valae  of  the  advice 
depends  hirijoly  upon  the  information  and  ability  of  the  jnd,2e,nnd 
is  probably  binding  only  on  the  receivei-s,  for  the  jadge  may  cliange 
Lis  mind  on  hearing  full  argnnient. 


^d  by  Google 


INTEESTATE  COMMBBCB — LONG  AND   SHOKT  HAUL.        77 

ITiider  section  4  of  tlie  interetale-commerce  law,  relating  to  tlie 
charges  for  tho  long  and  slioi't  liuiil,  it  seeniB  tliiit  where  g^  4  i^m 
the  circnmEtances  and  conditions  are  dissimilar  there  is  "^^i„  ™ 
no  prohibition;  wliere  the  circnnistances  and  condi-  2^""'"^;^? 
tions  are  similar  the  proliibition  nttacliee;  and  that  """^ 
wliere  it  is  difficnlt  to  point  but  clearly  tlio  circnnistance  or  con- 
dition whicJi  prodncea  dissimilarity  tlie  donbt  shonid  go  in  favor 
of  the  object  of  tlic  law,  and  the  circnriiEtances  and  conditions 
should  be  taken  as  snbstantially  similar.  Where  the  circn instances 
and  conditions  are  similar,  or  substantially  similar,  and  the  resnit 
to  the  carrier  is  injnrious,  relief  can  be  had  only  throngh  the  com- 
mission. 

The  balk  of  the  petition  presented,  of  tlie  evidence,  and  of  the 
master's  report,  is  an  argnment  against  tlie  interstate-commerce 
act,  and  a  vivid  showing  of  the  disastrons  effects  of  nn  enforcement 
of  the  act  with  the  popnlar  constrnction  given  to  the  Ions;  and 
eliort  liani  clanee,  so  far  as  the  lines  of  the  Texas  &  Pacific  R.  are 
concerned ;  and  if  any  speeilic  qucBtion  ie  pjesented  for  the  answer 
of  tlie  court  it  is  wlietlier  conj petition  between  carriers  is  a  circum- 
stance or  condition  of  the  cairiiige  in  the  sense  in  which  those 
words  are  nsed  in  the  fonrth  section  of  said  law. 

The  effect  of  the  enforcement  of  the  law  npon  the  particular 
property  in  the  hands  of  tiie  reccivere  need  not  be  considered,  when 
the  whole  qnestion  is  one  of  liow  to  comply  with  the  law.  That 
competition,  the  life  of  trade,  cuts  an  important  figure  in  the  con- 
ditions and  ciicnmatnnoes  attendant  upon  tran&portatioii  of  prop- 
erty and  pas3engei-9,  ciinnot  well  be  overlooked  nor  denied.  Nor 
can  it  well  be  denied  that,  as  between  the  short  and  long  haul, com- 
petition may  exist  to  that  extent  that  what  would  otherwise  be 
fiinjilar  circ-nmstancca  and  conditions  will  he  dissimilar  circumstances 
and  conditions.  Whether  in  any  p:irticn1ar  case  tiiero  is  that 
competition  on  the  long  lianl  that  will  justify  a  lower  charge  for 
the  long  haul  than  us  charged  for  the  short  hanl,  nnder  otherwise 
similar  circnmstancee  and  conditions,  must  he  determined  on  tho 
facts  of  the  particular  case  ;  keeping  in  mind  that,  where  the  mat- 
ter is  not  clear,  the  o^tject  and  tho  policy  of  the  law  should  prevail. 

As  to  competition  and  its  effects,  and  generally  as  to  the  ques- 
tions nnder  the  said  interstate  commei'co  act,  tho  reeeivei-s  are  re- 
ferred to  the  late  decision  of  tho  commiesioti  upon  the  petition  of 
the  LoiiisviUe  &  Nashville  and  other  niilroads,  rendered  June  16tl> 
instant.  This  decision  is  elaborate  and  well  considered,  and  an- 
swers all  the  poitits  made  by  receiveis*  petition  herein  as  specifi- 
cally as  their  general  natni'o  will  permit. 

The  lights  furnielied  by  the  commission,  with  a  disposition  to 
enforce  uie  law  (giving  the  same  an  enlightened  and  liberal  con- 
•traction,  to  the  end  that  the  mischiefs  at  which  the  law  ie  aimed 


^d  by  Google 


78  HBBOHAlns'  DESPATCH  TRA.N&PO STATION  00.  V.  JC£BEIAH. 

msy  be  preventecl  witliont  annecesBarr  iojary  to  uij  apecieB  of  ' 
property),  onglit  to  be  snffioient  to  guide  auy  railroad  tramc  mai)ft> 
ger,  and  to  enable  him  to  protect  biineelf  and  bia^iupaii;  amimt 
an;  eerioas  complaint  of  nnJDst  diBcrimination  or  Dnlawfar  coo- 
dnct 

Ma   CemnMrsB — Lorif    and   Short '  Haul.     Baa  -«>  pam 

and  note,  S9  Am.  A  Bug.  B.  R  Cat.,  U-^A-tO. 


Mwohmitb'  Dxvatch  TaufSFOBrAizoii  Oik 


(XteMt  Omb,  Jadtoao.     JToy  10,  1B8T.) 

Tha  Mandant  is  a  oonunon  oairier  Bomawbat  in  the  nature  of  an  axpnia 
company.  It  recelred  from  the  plaintiffs,  at  Boston,  a  box  of  books  con- 
aigned  to  themselTes  at  Louisville.  In  the  bill  of  lading  it  agreed  to  for- 
ward the  books  to  the  Louisville  depot  oolj.  After  the  arrival  of  the  books 
in  Louisville  the;  reznalned  at  the  depot  for  two  weeks,  when  tbej  were  de- 
livered to  a  person  who  bad  no  authority  to  receive  them.  lo  an  action 
against  the  carrier  upon  the  bill  of  lading  for  the  value  of  the  goods,  keJd, 
that,  although  the  extraordinary  liability  of  the  defendant  as  an  insurer 
ceased  upon  the  arrival  of  the  box  at  the  depot,  it  became  respioiuible  from 
that  time  forward,  under  its  contract  of  carrii^  as  a  warehouseiaaii,  and 
was  liable  for  want  of  proper  oare  in  the  delivery  of  the  box. 

Appeal  by  the  defendant  from  a  judgment  of  the  Marion  aa- 

Eirior  conrt  in  favor  of  the  plaintiffs,  in  aa  action  on  a  bill  of  lad- 
jf  for  non-delivery  of  goods.     Affirmed. 
Tlip  facts  are  stated  in  tlie  opinion. 

Addison  C.  Harris  arid  Wiuiam,  H.  CeJlema  for  appellant 
Ralph  EiU  and  J,  W.  NichoU  for  appellee. 

ZoLLABS,  J. — On  the  23d  day  of  March,  1880,  appellant  received 
from  O.  &  C.  Merriam,  a  lirtn  doing  bnsineBs  in  MaBsacliusettE,  a 
case  of  .books  to  be  carried  from  Boston  to  Louisville,  Ky.  The 
gum.  case  waa  safely  transported,  and  arrived  at  Lonieville 

on  the  29th  day  of  that  month.     In  tiie  hill  of  lading  executed  by 

appellant  are  these  proviaionB:  "Received  of ihe  following 

package to  be  forwarded to  Louisville  depot  only. .  .  . 

All  articles  of  freight,  on  arrival  at  place  of  destination,  are  at  the 
risk  and  expense  of  the  owner."  Also  the  following :  '■  In  no  eaae 
will  damages  be  allowed  for  wrong  delivery  or  loss  caused  by  de- 


^d  by  Google 


CAKBIBB — WABEHOCSSUAIf — WRONGFDL  DELITEET.       "W 

'fective  marking  witli  initials  or  wliere  the  marks  or  directions  are 
made  on  p»per  or  cai-ds."  Tlie  consignees  are  ^ven  in  the  bill  as 
^.  i&  0.  Merriam,  Louisville,  Ky. 

It  is  allc^d  ill  tlie  coiiiptalut  that,  by  the  terms  of  the  agree- 
.tnent,  of  which  the  hill  of  lading  filed  with  and  a  part  of  the  com- 
plaint is  the  written  evidence,  appellant  agreed  alid  undertook  to 
«an7  the  books  from  Boston  to  Loaisville  and  there  deliver  them 
to  appellees  or  their  duly  aotborized  agent  upon  a  surrender  of  tlie 
iiill  of  lading;  that  appellant  did  not  bo  deliver  the  books,  but,  in 
(riolation  of  the  contract  and  tbo  bill  of  lading,  wrongfully  ooii- 
■verted  tliem  to  its  own  iise. 

Upon  some  points  in  tlie  ease  there  ie  a  conflict  in  tlie  evidence, 
ftnit  there  is  evidence  tending  to  establish  the  following  as  the  facts 
jn  tlie  caoe : 

After  tlie  arrival  of  the  books  at  Lonisville,  they  were  placed  in 
the  freight  depot  of  the  Loaiaville,  Cincinnati,  &  Lexington  £. 
CSo.,  and  remained  there  nn til  the  6th  day  of  the  following  April. 
'The  bill  of  lading,  with  a  draft  on  one  Judson  W.  Turner  for  the 
valne  of  the  books  attached,  was  forwarded  by  tlie  appellees  to  a 
bank  in  Indianapolis,  where  Turner  lived.  By  paying  the  draft, 
Tnmer  woald  have  been  entitled  to  the  bill  of  lading  and  the 
books. 

Witliont  payment  of  tlio  draft,  he  was  not  entitled  to  either  the 
bill  of  lading  or  the  books.  He  never  paid  the  draft,  nor  did  he 
in  any  other  way  [ay  to  appellees  the  amonnt  of  the  draft  or  the 
value  uf  the  books.  Subsequent  to  the  anival  of  the  books  at 
Loaisville,  he  sent  his  brother  to  that  city  with  a  letter,  in  the 
4liape  of  an  order  for  the  books — signed  by  iiimself  as  agent — "  on 
the  Louisville,  Cincinnati  &  Lexington  R.  Co.  Upon  that  letter  . 
the  ruilroad  company  delivered  the  books  to  the  brother,  and  lie 
-disposed  of  them  as  directed  by  Tnrner.  Somewhat,  perhaps,  of 
-  the  nature  of  an  express  company,  appellant  is  clearly  a  common 
-carrier,  and  as  sucli,  snbject  to  the  rules  of  law  fipplicable  to  such 
-carriers.  Whether  or  not,  in  the  absence  of  stipulation  in  the  bill 
of  lading,  sncli  transportation  compatiiea  are  bound  to  deliver 
goods  to  the  consignee  in  tli^  manner  express  companies  are,  is  a 
qnestion  we  need  not  decide. 

Whatever  might  otherwise  be  the  rule,  the  stipulations  in  the 
bill  of  lading,  in  this  case,  th»t  the  goods  should  be  forwarded  to 
the  Louisville  depot  only,  would  bo  aufKcient  to  relieve 
appellant  from  the  duty  of  seeking  and  making  a  per-  ^Sm^-no»  " 
.flonal  delivery  of  the  goods  to  the  consignees  at  their  5SJ^"""* 
residence  or  place  of  business,  if  they  had  any  snch,  at 
Jjonisville.  In  other  words,  under  the  stipulation  of  the  bill,  ap- 
pellant wag  not  bound*  to  carry  the  goods  beyond  the  Louieyille 
■de|iot.     Fairly  interpreted,  the  bill  of  lading  fixed  no  farther  lim 


^d  by  Google 


80  MBECHAHTS'  DESPATCH  TEANSPOHTATION  CO.  V.  HEKKIAH. 

itatioii  npon  the  duty  and  liability  of  tlio  ap]>ellatit  as  a.  common 
carrier  of  tlie  goods.  It  did  not  aittliorize  it  to  unload  tlic  goods 
apon  tlie  platform  at  Louisville  and  pay  no  further  attention  to 
til  em. 

It  is  the  duty  of  snch  common  carriers  to  provide  a  place  where 
soods  carried  by  tliem  may  be  safely  kept  after  they  shall  have 
been  unloaded  from  the  care.  This  duty  results  from  the  natnre 
and  necessities  of  the  business;  and  nltlion^li  the  bill 
SSanr^  a  *>f  lading  may  be  silent  upon  tlio  snbject,  there  is  an 
wij»aoD»  implied  niidertakinz  U(K)II  the  part  of  the  carrier,  iii 
a  case  like  this,  winch  becomes  a  part  of  the  contract, 
that  if  the  consignee  shall  not  be  present  to  receive  the  goods  from 
the  cars,  or  on  the  platform,  it  will  store  them  in  a  safe  place,  and 
exercise  at  least  reasonable  care  to  preserve  them  from  loss,  and  to 
deliver  them  to  the  proper  consignee.  When  the  goods  are  thns 
unloaded  and  stored,  the  extraordinary  liability  of  the  commoD 
carrier  ;is  an  insurer  ceases,  and  ft  becomes  responsible,  from  that 
time  forward,  as  a  wai-ehouscman.  That  liability,  as  wo  have  in 
effect  said,  results  frem  and  i-eeta  npon  the  contract  of  carriage. 
There  is  but  one  couti-act,  and  when  the  contract  is  reduced  to 
writing,  it  is  evidenced  by  the  bill  of  lading.  If,  tlierefore,  after 
the  goods  are  unloaded  and  stored,  they  are  destrayed,  or  delivered 
to  a  wrang  person,  through  the  negligence  of  the  carrier,  it  lia& 
violated  its  contract,  and  may  be  compelled  to  respond  in  damages 
in  a  suit  upon  the  contract.  In  sucli  a  case  the  action  is  based 
npon  the  contract;  and  if,  through  the  negligence  of  the  carrier 
after  the  goods  have  been  thus  stored,  they  are  delivered,  not  to 
the  proper  consignee,  but  to  a  wrong  pei-son,  the  earlier  will  ha 
liable  to  the  owner  as  for  a  conversion  of  the  goods- 

As  fully  snpjwrting  the  foregoing  pi'opositions,  we  oite  the  fol- 
lowing: BaMHcmer  t).  Toledo  &  W.  R.  Co.,  25  Iitd,434;  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  V.  Nash,  43  Ind.  423  j  McEwen  v.  Jeffer- 
sonville,  M.  &  I.  R.  Co..  33  Ind.  368  ;  Jeffersonviiio,  M.  &  I.  R. 
Co.  1).  Irvin,  48  Ind.  180;  Adams  Exp.  Co.  u.  Hockett,  30  Ind. 
251 ;  Adams  Exp.  Co.  v.  Duinell,  31  Ind.  20;  American  Exp.  Co. 
V.  Stack,  29  Ind.  27;  Baltimore  A  O.  R.  Co.  v.  McWhinnev,  3ft 
Ind.  436 ;  Green  &  Barren  River  Nav.  Co.  v.  Marshall,  48  Ind.  596  ; 
Cincinnati,  C.  &  A.  L.  R.  Co.  v.  McCooI,  26  Ind.  140 ;  American 
Exp.  Co.  «.  Fletcher,  25  Ind.  492;  McCnlloch  «.  McDonald,  91 
Ind.  240 ;  Indianapolis  &  C.  R.  Co.  v.  Remmj,  13  Ind.  518 ;  Bart- 
lett  V.  Pittsburgh,  C.  &  St.  L.  R.  Co.,  94  Ind.  281 ;  s.  c,  IS  Am.  <fe 
Eng.  R.  R.  Cas.  549 ;  Hall  v.  Pennsylvania  Co.,  90  Ind.  459 ;  s.  o., 
16  Am.  &  Eng.  R.  R.  Gas.  166 ;  Lake  Shore  &  M.  S.  R.  Co.  v. 
Bennett,  89  Ind.  457 ;  s.  c.,  6  Am.  &  Eng.  R.  R.  Cas.  391,  Hatch. 
Car.  ^  136,  351,  354,  388. 
It  18  not  shown  by  the  evidence  in  the  ease  before  as,  except  in- 


^d  by  Google 


OAKEIEE — WAREHOUSEMAN — WRONGFUL   DELIVEET.      81 

ferentiaHj,  that  the  freight  depot  of  the  LoniBville,  Cincinnati,  & 
Lexington  R,  Co  was  also  the  freight  depot  of  appellant.  Nor  is 
it  shown  very  definitely  that  appellant  placed  the  books  in  that 
depot.  They  were  placed  there  oy  some  one,  and,  bv  the  persouB 
in  charge,  delivered  to  Turner's  brother.  If  in  fact  tuat  depot  was 
also  the  depot  of  appellant,  and  it  placed  the  books  therein,  it  was 
bound  to  exercise  the-  care  of  a  warehonseman  in  the  delivery  of 
them.  If  in  fact  appellant  had  no  freight  depot,  bat  adopted  that 
of  the  railroad  company  for  the  storage  of  the  books,  it  was  still 
bonnd  to  see  to  it  that  in  the  delivery  of  the  books  such  care  was 
exercised  as  is  required  of  a  warehouseman.  Nor  would  it  help 
appellant's  case  if  it  shonld  be  said  that  it  neither  had  a  freight 
depot  nor  stored  the  books,  but  left  them  on  the  platform  at  the 
depot.  We  are  not  enabled  to  say,  upon  the  evidence  before  us, 
that  proper  care  was  exercised  in  the  delivery  of  the  books.  Tur- 
ner's brother  was  a  stranger  to  those  in  chai^  of  tlie  depot  where 
the  books  were  stored.  Judson  W.  Turner  did  not  have  the  bill 
of  ladine,  and  there  was  evidence  tending  to  shojv  that  neither  be 
nor  his  brother  had  either  a  duplicate  or  a  copy  of  it.  Nothing 
was  presented  to  those  in  charge  of  the  depot,  except  an  order  or 
letter  siened  by  Judson  "W,  Turner  aa  "agent."  It  was  not  even 
stated  therein  that  he  was  agent  for  appellees.  In  fact  he  was  not 
snch  agent,  and  had  no  authority,  and  could  have  no  authority,  to 
receive  the  books  without  having  paid  the  draft  attached  to  the  bill 
in  tlie  possession  of  the  bank.  The  books  were  thus  delivered  to 
Turners  brother  upon  the  letter  alone,  and  without  further  inquiry 
as  to  his  authority  to  receive  tliem.  The  evidence  does  not  justi^ 
the  delivery  of  the  books  to  him,  find  hence  that  delivery  did  not 
relieve  appellant  from  this  obligation  to  deliver  them  to  appeflees. 

See  agam  the  cases  above  cited. 

The  judgment  of  the  court  below,  awarding  damages  to  appel- 
lees,  is  affirmed,  with  costs. 

Whan  Carrior't  Liability  h  WarvhouMinan  Comm«i>cef.— See Oashveilei 
«.  Wabsah,  etc.,  R.  Co.,  26  Am.  &  Eng.  Corp.  Cas.  403;  Butler  o.  E.  Tenn., 
etc,  R.  Co.,  9  lb.  MQ;  HiBaouii  Pac.  R.  Co.  v.  DouglasB,  16  lb.  68  ;  Peteraon 
».  Case,  18  lb.  078;  Eennedj  BroB.  e.  Mobile,  et«.,  R.  Co.,  21  lb.  14S; 
Texas,  etc,  R.  Go.  t>.  Cftppea,  and  note,  16  lb.  118-123;  South  and  N.  Ala. 
R  Co.  e.  Wood,  16  lb.  267,  and  note,  272. 

Dagrea  of  Care  Required  oF  Witrahouaamen.— Bee  Arthur  e.  Chicago,  etc., 
R.  Co.,  16  Am.  &Eng.  B.R.  Cos.  383;  Leland  v.  Chicago,  etc,  R.Co.,  91  lb. 
108;  Hoeger  b.  Chicago,  etc,  R.  Co.,  81  lb.  808;  Gashwellwre.  Wabaah,  etc., 
R.  Co.,  2S  lb.  408. 

81A.AE.  B.Cu.-e 


^d  by  Google 


i  DMiAWAKB,  Xrro.,  B.  00.  V.  OENTRAI.  WLOOK-YASJD,  KTO.  OO. 


DSLAWABB,  TjAOKAMUSmA  ASD  WeSTEBK  B.  OO. 
V. 

Obhtbil  Stook-tabd  and  Tkasstt  Go. 

(AdMMt  Oaty  Iftv  Jtnv-     Btflmbir  9,  IBBT.) 

All  grants  of  privilegM  by  the  BUte  ue  nude  Bubj«ot  to  the  right  of  tbfl 
Bt>t«  to  pieicribe  the  condilionB  upon  which  the  privileges  shkU  be  enjojed. 

The  State  potMStea  this  power,  whether  it  is  expressly  reaerred  or  not. 

The  complainanta  seek  sn  injnnction  to  compel  the  defendants  to  r^ 
od*«,  at  their  stock-yards,  from  the  oomplainanta,  live  freight  carried  over 
thmr  road,  and  oonngned  for  delirerj  at  the  defendants'  yards.  Injunction 
refased— .?lir<  because  the  question  whether  the  defenduits  are  subject  to 
an;  dutj  to  the  complainants  to  receive  such  freight  is,  as  a  matter  of  law, 
unsettled ;  and  mcotm,  because  the  injunction  asked  for  is  mandator;  in  its 
rtaraoter,  and  such  writs  are  never,  according  to  the  general  rule,  granted 
until  final  hearing. 

Oh  applicadon  for  injanetion,  heard  od  bill  and  affidavits,  order 
to  show  cause  and  answer  and  ^davits. 
Flavd  MoOee  and  Josmh  D.  Bedle  for  oomplunaDts. 
Zson  Aibett  for  defendants. 

Yak  Flbbt,  T.  C. — ^Tlie  complainants  ask  for  a  preliminary  in- 
janetion to  compel  the  defendants  to  perform  a  duty  which  the 
complainants  claitn  the  defendants  are  bonnd  by  law  to  render  to 
tlioin.  By  an  act  paaaed  in  1873  (P.  L.  1873,  p.  920),  the  defend- 
Tt/at.  ants  were  created  a  corporation,  and  given  power  to 

locate,  eonetrnct,  and  maintain  all  neceeeary  yards  and  other  strnc- 
tnree,  with  aqneducts  and  railway  tracks,  for  the  reception,  safe- 
keeping, feedme,  watering,  and  slaughtering  of  livestock  of  every 
description,  and  for  the  accoininodation  and  transaction  of  tlie 
bneiiiess  of  a  general  stock-yard  and  market  establishment  of  live- 
stock ;  also  to  purchase  land  and  bnild  wliarves,  docks,  and  slips 
thereon,  and  to  procure  and  rnn  such  vessels  as  should  be  ncscussary 
for  tlie  transaction  of  their  business^ in  transporting  live.£tock  and 
dressed  animals  from  place  to  place  in  and  aboutthe  liarbor  of  New 
York  and  the  Hudson  river.  They  were  also  given  authority  to 
lay  railroad  tracks  connecting  their  yards  with  the  several  railroads 
running  throngh  the  county  of  lIn<?6on.  By  an  act  passed  in  1875 
(P.  L.  1875,  p.  215),  large  police  powei-s  were  conferred  upon  the 
defeudants.  They  were  authorized  to  establisli  rules  and  regula- 
tions prohibiting,  among  otlier  things,  every  species  of  gambling, 


^d  by  Google 


CAEEIBE— DUTY  OF  8TO0K-YAKD8.  88 

breach  of  the  peace,  and  other  violation  of  th«  kwB  of  the  State ; 
-and  to  appoint  couBtables,  who,  b;  the  act,  are  given  power  to  ar- 
reat,  withont  proceee,  ail  persons  who  shall  be  fonnd  on  the  defend- 
«nta'  grounds  violating  any  of  the  lawa  of  the  State,  or  the  ralee 
-aod  regulations  eetabJishea  by  the  defendants.  The  defendants 
have  eetabliehed  yards,  for  the  parpoeee  mentioned  in  their  charter, 
■at  the  foot  of  Sixth  street,  in  Jersey  City,  having  a  front  on  the 
Hndson  river,  where  wharves  have  been  bnilt  for  the  reception  of 
live-stock  carried  to  their  yards  by  water,  and  railroad  tracks  have 
-also  been  laid  connecting  their  varde  with  the  roads  of  the  Penn- 
erlvania  Railroad  Company  ana  the  Erie  Railway  Company.  For 
tne  past  live  years  the  defendants  have  carried  on,  at  their  yards,  a 
^nerat  stock-yard  and  market-bnsiness,  receiving  all  the  live-stock 
■ofEared  to  them.  A  large  nnmber  of  dealers  have  places  of  bnsinesa 
in  the  yards,  and  on  three  days  in  each  week  sales  are  made  at  the 
yards,  when  a  large  nnmber  of  dealers  in  live-stock  and  meats  as- 
semble there  to  buy  and  sell 

The  complainants  have  control  of  a  cootinnons  line  of  railway 
from  Chicago  to  Hoboken,  over  wliich  they  carry  daily  a  large 
■qnantity  of  live-stock.  The  eastern  terminus  of  their  road  is  at 
Hoboken,  distant  over  a  mile  from  the  yards  of  the  defendants. 
They  have  no  connection  by  rail  with  the  defendants'  yards.  Prior 
to  the  fifteenth  of  Jnly  last  the  complainants  procured  the  live-  ' 
■stock  carried  over  their  i-oad,  and  consigned  for  delivery  at  the  de- 
fendants' yard  to  be  carried,  from  the  eastern  terminns  of  their 
road,  to  the  yards  of  the  defendants,  over  the  track  of  the  Erie 
Bailway  Company.  On  the  date  last  named  the  Erie  Company 
increased  tlieir  charge  for  this  service  from  three  dollars  to  five 
■dollars  a  car,  and  the  complainants,  not  being  wiUing  to  pay  the 
increased  rate,  made  an  arrangement,  for  the  same  service,  with 
the  Kew  York,  Susqnehanna  &  Western  Railroad  Company,  who 
were  then  using  the  track  of  the  Pennsylvania  Railroad  Company 
mnning  to  the  defendants'  yards.  The  Pennsylvania  Railroad 
Company  snbseqently  refused  to  allow  their  track  to  be  used  for 
this  parpose,  ana  the  complainants  then  arranged  to  have  the  stock, 
consigned  to  them  for  delivery  at  tlie  defendants'  yards,  carried 
there  by  floats,  and  delivered  at  the  defendants'  wharf,  Tiie  de- 
fendants therenpon  gave  the  complainants  notice  that  they  would 
not  permit  the  complainants'  floats  to  land  at  their  wharf,  and  also 
that  they  would  not  receive  from  the  complainants  any  Uve-stock 
transported  over  their  road.  Immediately  after  this  notice  was 
given,*  the  complainants  filed  the  bill  in  this  case.  They  ask  that 
the  defendants  may  be  enjoined  from  refusing  to  raceive  live-stock 
from  them. 

The  special  ground  upon  which  the  interference  of  tliis  court  is 
-asked  is  that  the  defendants  are  engaged,  under  legislative  author- 


ed byGoOgIc 


84  DELAWARE,  ETC.,  H.  CO.  V.  OEMTBAL'STOCK-TAKD,  ETC.  C0_ 

itj,  is  the  condnet  of  a  bneiness  which  is  pnblic  in  its  nature,, 
powra  OF  snd  in  which  the  public  tiave  an  important  interest,. 
SIS"i^^^  and  tliat  tliay  therefore  stand  charged  with  cer- 
"^  tain  dntiee,  which  thej  are  bound  to  render  to  every 

citizen  who  may  demand  their  performance,  and  to  render  to  each 
the  same  measure  of  service,  and  on  eqnal  terms,  in  respect  to- 
compensation.  Thedntvof  the,  defendants  to  receive  and  care  for 
live-stoclc,  and  give  its  owner  the  benefit  of  the  market  which  has 
been  established  at  their  yards,  is  likened,  by  the  complainants,  to 
the  duty  of  a  common  carrier  who,  being  a  pnblic  agent,  and  en- 
gaged in  a  bnsiness  whicli  is  pnblic  in  its  nature,  is  under  a  legal 
duty  to  serve  all  wlio  may  require  hie  servicee.  That  the  defend- 
ants are  subject  to  legislative  control  both  in  respect  to  the  com- 
pensation  tiiey  shall  receive,  and  the  manner  jn  which  they  shall 
conduct  their  business,  is  a  proposition  which  I  regard  as  entirely 
free  from  dispute.  They  hold  certain  important  privileges  under 
legislative  grant.  Such  grants  are  always  made  subject  to  the 
right  of  the  State  to  prescribe  the  conditions  upon  which  the  privi- 
leges shall  be  enjoyed.  The  State  poEsesses  this  power  whether  it 
is  expressly  reserved  or  not.  It  is  a  condition  which  the  law  an- 
nexes to  ever^  public  grant  of  this  nature.  To  this  extent,  I  re- 
gard it  aa  entirely  clear  that  the  defendants'  bnsiness  is  a  pnblic 
business.  I  am  also  of  opinion  that  the  defendants  stand,  in  re- 
spect to  their  legal  duties,  in  a  position  very  simitar  to  that  which 
a  common  carrier  occupies, — bound  to  serve  all  who  have  a  right 
to  demand  their  service,  to  the  best  of  their  abilitiy,  and  on  eqnal 
terms  as  to  compensation.  But,  conceding  this  to  be  so,  a  very 
important  question  still  remains  for  consideration.  Suppose  the 
defendants  are  under  a  legal  duty  to  receive  all  the  stock  offered 
to  them  for  safe  keeping,  or  for  slaughter,  or  for  sale,  to  whom  do- 
thej  owe  this  doty?  To  the  common  carrier  of  the  stock,  or  to 
its  owner?  And,  if  to  a  common  earner,. what  common  carrier? 
One  whose  line  or  route  extends  to  their  yards,  or  to  all  regardlesa 
of  where  their  lines  or  routes  terminate?  These  are  important 
legal  questions,  which,  so  far  as  I  am  aware,  are  nntonched  by  jndi- 
cial  decision  in  this  country  or  elsewhere,  A  common  carrier  by 
rail  is  under  no  legal  duty  to  carry  freight  beyond  the  termini  of 
his  route.  He  may  enter  into  a  contract  to  do  so,  but  if  he  does 
his  obligation  will  Be  purely  voluntary,  and  not  the  result  of  legal 
compulsion.  From  this  it  would  seem  to  be  obvious,  that  if  tlie 
defendants  owe  the  complainants  the  dnty  which  the  complainants 
claim  they  do,  such  dnty  does  not  arise  out  of  a  corresponding 
dnty  which  toe  complainants  owe  to  others,  but  mnst  stand  on 
some  other  consideration  of  i-eason  or  justice,  which,  as  yet,  has 
not  been  judicially  declared. 

The  defendants'  business  is  of  recent  ori^n.    Their  duties  to 


^d  by  Google 


OABEIBB — DUTY   OF  STOOK-TARDS.  86 

■common  carrierB,  if  any  exist,  are  wholly  undefined,  and  conse- 
-qnently  unknown.  Tho  power  of  defining  tliem  be- 
longs to  the  common-law  eourta,  and  nntilthey  have  tLttaoM  nn 
been  defined  hj  that  tribunal  of  this  State,  which,  in  iwcnai. 
respect  to  each  matterB,  exercises  an  exclnsive  jnrisdic- 
tion,  this  court  cannot  know  that  any  exist,  nor  what  they  are, 
Dor  whether  an  evasion  or  denial  of  them  constitntes  an  injury 
SB  this  court  may,  in  the  rightful  exercise  of  its  power,  redress  by 
injunction.  In  the  language  of  Chief  Jnstice  Beaeley,  no  rule  of 
■equity  is  better  settled  than  the  doctrine  tliat  a  complainant  is  not 
in  a  position  to  ask  for  a  preliminary  injunction  when  the  riglit 
-on  which  he  founds  his  claim  is,  as  a  matter  of  law,  unsettled. 
Coach  Co.  ».  Horse  R.  Co.,  29  N.  J.  Eq.  299.  This  role  is  juris- 
dictional. It  stands  as  a  limitation  upon  the  power  of  the  court, 
and  is  therefore  a  law  unto  the  court,  which  the  court  most  respect 
.and  obey. 

There  is  another  important  rule,  regulating  the  exercise  of  the 
power  of  the  court,  wliieh  makes  it  the  duty  of  the  court  to  deny 
to  the  complainants  the  writ  they  ask.  Although  they  a^ 
for  a  writ  negative  in  form,  it  is  piaiu  that  what  they  sun. 

want,  and  what  must  be  given  to  them  if  their  prayer  is  granted, 
is  a  mandatory  injunction.  They  ask  that  the  defendants  may  be 
■enjoined  from  reiusing  to  receive  live-stock  from  them.  Stated 
plainly,  and  without  any  circumlocution,  that  means,  in  view  of 
the  facts  of  this  case,  that  the  defendants  shall  be  compelled  to 
act, — to  receive, — and  not  simply  to  refrain  from  acting.  So  that 
it  is  manifest  that,  even  if  the  mandate  of  the  court  should  be  ex- 
pressed in  the  very  words  of  the  complainants'  prayer,  it  would, 
jn  its  snbstance  and  practical  effect,  t)e  just  as  mandatory,  as  it 
would  if,  in  plain  and  direct  terms,  it  commanded  the  defendants 
to  receive.  Injunctions  of  this  kind  will  not,  as  a  general  rnle, 
be  granted  until  final  hearing,  and  they  will  not  be  granted  then 
nnless  necessary  to  the  complete  execution  of  the  decree  of  the 
-court.  There  are  a  few  exceptions  to  this  rule.  Obstructions  to 
easements,  and  rights  of  like  nature,  may  be  removed  by  manda- 
■tory  injunction  granted  before  final  hearing ;  but  even  in  cases  of 
this  class  the  power  is  exercised  with  great  caution,  and  only  in 
-cases  of  extreme  necessity.  Tliie  subject  was  exhaustively  consid- 
ered by  Chancellor  Zabriskie  in  Locomotive  Works  v.  Railway  Co., 
20  N.  J.  £q.  ST9,  and  tho  rules  laid  down  by  hini  in  that  case 
have,  I  believe,  always  since  been  considered  the  established  prin- 
-ciples  of  this  court.  The  defendants  in  that  case  had  refused  to 
carry  merchandise  over  their  road  for  the  complainants  for  the 
legal  rates  of  freight,  and  the  complainants  then  filed  a  bill  ask- 
ing for  a  mandatory  injunction  to  compel  the  defendants  to  per- 
form their  legal  dnty.    The  writ,  after  argument,  was  refused 


^d  by  Google 


86  LINDSLET  V.  CHICAGO,  MILWAUKEE,  ETC.,  R.  CO. 

distinctlj  on  the  groand  that  it  was  not  -within  the  power  of  tlie 
coart  to  grant  it  Befoie  tinal  hearing.  The  chancellor,  at  the  close 
of  his  opinion,  cautionel;  remarkB  that  he  does  not  intend  to  in- 
timate any  opinion  npon  the  queetioti  whether,  even  on  the  final 
hearing,  this  conrt  bad  power  to  give  the  complainants  relief  of 
the  kind  they  asked ;  that  is,  to  compel  a  common  carrier  to  re- 
ceive and  carry  freight.  In  ordinary  cases,  there  can  be  no  donbt 
that  the  only  remedy  to  which  the  injured  person  can  resort, 
where  another  person,  who  is  under  a  legal  dnty  to  liim,  refuses 
to  perform  snch  duty,  or  performs  it  in  a  negligent  or  improper 
manner,  and  loss  ensues,  is  an  action  at  law.  The  case  just  cited, 
it  will  be  observed,  would  be  a  direct  authority  against  the  right 
of  the  complainants  to  the  writ  they  ask,  even  if  the  legal  right 
npon  which  they  fonnd  their  claim,  was,  as  a  matter  of  law,  en- 
tirelv  free  from  doubt  or  dispute. 
Toe  application  of  the  complainauts  must  be  denied,  with  costs^ 


ChIOAOO,   MILWAUKEE'  AND    8t.    FaDL   B.    Co. 

{Adtmce  Com,  MinnMota.    May  9, 1887.) 


The  general  rule  of  the  abeolute  liability  of  a  common  carriBT  for  th» 
safe  transpoTtatioD  and  deliver;  of  prop«rtj  committed  to  it  for  carnage  is 
applicable,  although  the  property  conaiBts  of  live-stock,  but  subject  to  th* 
exceptioD  that  it  is  not  an  insurer  a^ost  injuries  reaulting  from  the  inher- 
ent nature  or  prop«DsitieB  of  the  aomials,  and  without  fault  of  the  carrier. 

In  an  action  for  the  death  of  live-stock  in  the  couibc  of  transportation, 
and  wholly  under  the  care  of  the  carrier,  the  burden  of  proof  is  upon  the- 
defendant  to  show  that  the  cause  of  the  death  was  within  the  exception 
qualifying  its  general  liability. 

Evidence  of  ciroumstances  under  which  the  atock  in  this  case  died  held 
sufficient  to  justify  the  jury  in  flndiog  the  defendant  to  have  been  negligent. 

It  appearing  that  a  car-load  of  stock  in  transit  wassuffering  greatly,  prob- 
ably from  heat,  it  was  not  objectionable  toaak  an  expert  witness  what  course 
the  carrier  might  properly  pursue  for  their  relief. 

A  charge  thnt  a  fact  in  issue  must  be  proved  to  the  satisfaction  of  the  jury 
bj  a  preponderance  of  the  evidence,  lield,  in  connection  with  other  instruo- 
tions,  to  mean  only  that  the  burden  of  proof  most  be  sustained  by  evidence- 
which  the  jury  deem  to  be  preponderant. 

Appeal  from  district  court,  Jackson  county. 
Action  to  recover  the  value  of  certain  hogs  which  died  while  in 
transit  over  defendant's  railroad. 


^d  by  Google 


CAKEIEB — LIVE  STOCK.  87 

From  tbe  evidence  it  appears  t)iat  on  Hay  22,  1885,  the  defend- 
ant received  from  plaintin,  at  the  Hinnesota  Transfer,  Minnesota, 
a  car-load  of  hogs  for  transportation  to  Chic^.  The  car  was 
shipped  the  same  evening.  The  next  day.  May  23d,  was  very 
warm,  and  that  evening,  the  hogs  being  discovered  to  be  in  a  bad 
condition,  the  car  containing  them  was  set  ont  from. the  train  at 
Portaee,  Wisconsin,  and  the  Iiogs  unloaded.  Twenty-four  of  them 
were  fonnd  dead.  Flaintifi  alleged  tliat  their  death  was  dae  to  the 
negligence  of  the  defendant,  and  on  the  trial  lie  was  allowed  to  tes- 
tify, over  defendant's  objections,  that  in  his  opinion,  as  an  expert, 
the  proper  thing  for  thecondn<;tof  of  the  train  to  have  done,  under 
the  circamstances,  wonid  have  been  to  have  set  ont  the  car  from 
the  train,  and  have  the  hogs  cared  for ;  thera  having  been  evidence 
to  show  that  the  conductor  had  noticed  tliat  they  were  in  a  bad 
condition  and  snffering  several  honrs  before  the  arrival  of  his  train 
at  Portage. 

The  following  requests  of  the  defendant  for  instmctions  to  the 
jnry  were  refused  by  the  court,  Pbbkins,  J.: 

"  (2)  The  jnry  are  instructed  that  the  fact  that  the  hogs  died  in 
transit  raises  no  presumption  of  negligence  on  the  part  of  the  de- 
fendant, or  any  of  its  employees,  and  tliat  the  burden  of  proof  is  on 
the  plaintiff  to  sliow,  by  the  preponderance  of  the  evidence,  that 
there  was  negligence  on  the  part  of  the  defendant,  or  of  its  em- 
ployes, wliich  directly  caused  the  death  of  the  hoge." 

"  (5)  The  jnry  are  instrncted  that  if,  on  the  whole  evidence,  in 
your  opinion,  it  is  left  in  doubt  what  the  caose  of  the  damage  was, 
tben  your  verdict  mnst  bo  for  the  defendant. 

"(6)  The  jni-y  are  instrncted  that  if  the  evidence,  in  your  opin- 
ion, leaves  it  in  doubt  as  to  whether  there  was  any  negligence  on 
the  part  of  the  defendant,  or  its  employees,  which  directly  caused 
or  contributed  to  tlie  death  of  the  hogs,  then  your  verdict  must  be 
for  the  defendant." 

On  plaintiff's  request,  tlie  court  charged  the  jnry  as  follows : 
"  (2)  In  the  transporting  of  the  hogs  in  question  the  defendant 
was  a  common  carrier,  and,  as  such,  was  bound  to  use  all  care  and 
precaution  for  their  safety  while  in  transit,  so  far  as  human  vijriU 
Buce  and  foresight  and  care  would  go.  It  was  an  insurer  of  the 
property,  except  in  respect  to  such  injuries  as  may  or  might  una- 
voidably result  from  tlie  essential  nature  of  the  property  itself,  the 
nature  and  propensity  of  the  hogs,  and  their  capacity  to  inflict 
injury  upon  each  other. 

"  (3)  In  this  case,  unless  yon  find  that  these  hog^  died  from  some 
inherent  want  of  vitality,  or  by  reason  of  their  inflicting  injuries 
npoa  each  other,  or  by  inevitable  accident,  the  defendant  conipnny 
is  liable ;  and,  if  it  would  escape  liability,  the  burden  of  proof  is 
npon  it  to  show  that  the  hogs  die<l  from  some  other  cauec  tli:iii  its 


^d  by  Google 


88  LINDBLET  tJ.  CHICAGO,  MILWAUKEE,  ETC.,  K.  CO. 

iii-gligence.  In  the  absence  of  snch  proof,  the  law  preenmes  negli- 
^uoce,  and  that  aach  negligence  caosed  the  death  of  these  bogs. 
In  other  worda,  the  defendant,  in  order  to  escape  liability  in  this 
action,  moet  prove  to  your  aatisfaction,  by  a  prepondei-ance  of  the 
evidence,  that  the  death  of  the  hogs  was  the  result  of  some  other 
canse  than  its  negligence,  or  the  negligence  of  its  employees  or 
train-men." 

Upon  the  verdict,  jndgmeat  was  entered  for  plaintiff.  Defend- 
ant appeals  from  an  order  denying  a  new  triah 

W.  H,  Norria  and  H.  H.  rie&  for  appellant. 

T.  J.  Kfwa  iat  respondent.         • 

DioKmsoM,  J.^ — 1.  "We  will  first  consider  whether  there  was 
error  in  the  refusal  of  tbe  conrt  to  instmct  ttie  jnry  as  requested 
by  the  defendant,  as  to  the  burden  of  proof,  and  in  flie  instruction 
BimDw  or  given  upon  that  subject.  In  brief,  the  qnestion  is 
™*"-  whether,  the  hogs  having  died  in  transit,  the  bni-den 

was  upon  tlie  plaintiff  to,  show  that  the  death  was  caused  by  tbe 
defendant's  negligence,  and  not  from  disease,  or  from  what  might 
•  be  termed  natural  causes,  or  was  it  upon  the  defendant  to  show 
that  it  was  withont  negligence,  so  tliat  it  mnst  boiMferi'ed  that  the 
death  was  from  natural  causes,  for  wliicli  tlie  carrier  was  not  re- 
sponsible. In  this  state,  and  generally  in  the  United  States,  it  has 
been  held  that  a  carrier  engaged  in  the  tranapoitation  of  live-stock 
assumes,  with  respect  to  such  prapertj,  the  common-law  relation  of 
a  common  carrier,  with  the  incident  duties  and  obligations,  sub- 
ject, however,  to'the  modification  or  exception  that  lie  is  nut  an  in- 
fiurer,  as  respects  injuries  resulting  without  his  fault,  but  from  the 
inherent  nature  or  propensities  of^the  animals  tbemeetves.  Moul- 
ton  V.  St.  Paul,  M.  &  M.  R.  Co.,  31  Minn,  85 ;  e.  a,  12  Am.  4 
Eng.  R.  R.  Gas.  13. 

In  general,  although  the  rule  that  the  carrier  is  absolutely  re- 
sponsiole  as  an  insurer  of  the  property  is  subject  to  some  excep- 
bona,  as  in  cases  where  the  injury  or  foes  is  to  be  referred  to  toe 
act  OT  God  or  the  violence  of  public  enemies,  yet  the  burden  of 
proof,  as  respects  the  cause  of  loss  or  injury,  is,  even  in  such  cases, 
apOD  the  carrier,  who,  to  exonerate  himself  from  liability,  must 
show  that  the  cause  of  the  lose  was  of  the  exceptional  kind  which 
the  law  recognizes  as  excusing  him.  Shriver  v.  Sioux  City  &  St'. 
P.  R.  Co.,  24  Minn.  606 ;  Tarbox  v.  Eastern  Steamboat  Co.,  50 
Mo.  339;  Aiden  «.  Pearson,  3  Gray,  342;  Murphy  «.  Statoii,  3 
Mnnf.  239;  Forward  v.  Pittanl,  1  Term  R.  27,  33;  Aug.  Carr. 
203,  472.  From  considerations  of  public  policv  (Riley  v.  Home, 
5  Bing.  217,  220;  2  Starkie  Ev.  287,  7th  Ainer.  Ed.},  the  mere 
fiict  of  loss  being  shown  tbe  law  presumes  negligence  or  miecon- 
duct  on  tbe  part  of  tiie  carrier,  and  the  burden  of  proof  is  not  upon 


^dbyGoO^^lc 


CaEBIEE — LIVE  STOCK.  89 

the  owner,  althongli  the  lose  appears  to  have  been  of  anch  a  nature 
that  it  might  have  been  caue^  b;  the  act  of  G-od,  if  it  might  as 
well  have  resntted  from  the  negligence  of  the  cavrier. 

Thus  in  the  case  of  goods  shown  to  have  been  bnrned  while 
being  transported  on  a  railway,  the  owner  may  nnqnestionably  re- 
cover if  nothing  more  be  shown,  although,  for  anght  that  appears, 
the  fire  may  have  been  caased  by  lightning,  and  not  from  any  hu< 
nan  agency.  In  principle,  this  case  is  notdifferent.  To  pat  the  bur- 
den of  proof  npon  the  plaintiff  would  be  inconsistent  with  the  legal 
presumption  of  n^ligence  or  misconduct  which  is  everywhere  rec- 
ognized, and  whi(£  IB  in  general  of  a  conclusive  character,  exclnd- 
ing  even  proof  of  actnal  carefulness,  except  as  the  cause  of  tlje  loss 
may  be  shown  to  have  been  within  the  legally-d^ned  exceptions 
to  the  rule  of  absolute  liability.  By  force  of  this  presumption,  the 
carrier  is  charged  with  responsibility,  unless  in  some  way  it  be 
shown  that  the  animals  died  from  some  cause  not  involving  fault 
on  the  part  of  the  cairier.  This  is  not  sliown  by  the  mere  fact 
of  the  deatli  of  the  aniiiials;  for,  as  in  the  case  of  loss  by  fire,  this 
may  as  well  have  resulted  from  the  misponduct  of  the  carrier  as 
from  the  act  of  God.  The  conrt  was  right  in  mling  that  the  bnr- 
-den  of  proof  was  upon  the  defendant. 

We  discover  no  eri-or  in  the  form  or  terms  in  which  the  instruc- 
tions were  pi'esented.  In  saying  to  tlie  jury  that  the  defendant 
lanst  prove  to  their  satisfaction,  by  a  preponderance  of  the  evi- 
dence, that  the  death  of  the  hogs  reeulted  from  some  other  canse 
than  its  own  negligence,  the  conrt  obviously  meant  no  more  than 
that  the  defendant  should  establish  that  fact  by  what  the  jury 
shoald  deem  to  be  the  weight  of  the  evidence.  This  is  apparent 
from  the  langnage  employed,  especially  in  connection  with  the  in- 
struction given  upon  the  defendant's  fourth  request 

The  fifth  and  sixth  requests  of  the  defendant  were  properly  re- 
fused. They  were  opposed  to  the  correct  theory  upon  which  the 
■case  seems  to  have  been  committed  to  the  jury  (as  is  apparent 
from  the  instructions  given  upon  the  defendant  s  fourth  and  the 
plaintiff's  third  reqneats),  that  the  burden  was  upon  the  carrier  to 
show,  by  the  preponderance  of  the  evidence,  that  the  death  resulted 
from  some  innerent  property  in  the  animals,  without  the  contnbn- 
tory  fault  of  the  carrier. 

The  instruction  given  upon  the  plaintiff's  second  request  was 
not  unfavorable  to  tiie  defendant,  in  view  of  the  principle  correctly 
embodied  in  it,  that  the  carrier  is  an  insurer,  except  as  respects  in- 
jaries  resulting  from  the  nature  of  this  kind  of  property. 

2.  The  verdict  was  jostified  by  the  evidence.  W  itiiont  regard 
to  the  legal  presumption  arising  from  the  destruction  vesdtct  ivati- 
of  the  property,  the  evidence  presenta  a  case  from  ™raS.  ''" 
which  the  jnry  might  find   negligence  on  the  part  of  the  car- 


^d  by  Google 


90  LIND3LET  V.  CHICAGO,  MILWAUKEE,  ETC.,  E.  00. 

rier.  This  car-load  of  Iioge  wae  wholly  in  the  cnre  of  the  de^ 
fendant,  it  not  being  cnetomary  to  allow  the  shipper  to  accompany 
a  single  oar-load  of  stock  to  care  for  it.  There  is  no  claim  that  the 
ear  was  OTerloaded,  and  the  evidence  is  that  it  was  not.  Apparently 
the  bogs  were  in  good  condition  when  they  left  La  CrDsse,  on  the 
morning  of  May  23d.  At  Portage,  at  about  6  o'clock  that  after- 
noon, M  of  them,  or  more  than  one  third  of  the  whole  car-load, 
were  found  dead.  At  that  place  (Portage)  the  hogs  then  alive  were 
removed  from  the  car,  and  no  more  deatlis  occurred.  This  raor- 
tality  was  extraordinary ;  witnesses  for  the  defendant,  of  expei'ience 
in  sncli  businees,  never  having  known  more  than-  three  or  fonr 
deaths  to  occur  in  a  single  car-load.  The  animals  were  not  in  need 
of  food.  The  day  was  very  hot,  and,  as  the  defendant's  evidence 
showed,  the  animale  wei'e  showered  with  water  (which  seems  to 
have  been  proper  treatment)  at  three  places  in  the  course  of  tlie 
day,  the  last  time  at  about  3  o'clock  in  the  afternoon.  Notwith- 
standing this,  the  conductor  of  the  train  observed  that  the  hogs 
were  panting  as  tbongh  too  warm.  At  midday,  at  a  point  78  mifei 
from  Portage,  he  showered  them  because  be  smelted  them  in  walk* 
ing  over  the  train.  He  observed  two  dead  hogs  at  a  point  43  miles 
from  Portage,  and,  at  a  point  25  miles  from  Portage,  that  seven  or 
eight  were  dead,  and  the  remainder  in  bad  condition.  Other  sta- 
tions were  passed  befoi-e  coming  to  Portgage,  where,  as  the  evi- 
dence  tended  to  show,  the  stock  might  have  been  leftand  unship- 
ped. From  this  and  other  evidence  tending  to  the  same  concUision, 
the  jury  might  well  conclude  that  there  was  neghgence  in  not  set- 
ting the  car  off  from-  the  train,  and  unloading  tne  stock,  as  was 
done  at  Portgage,  before  the  final  destination  was  reached. 

9.  Error  is  assigned  as  to  the  overiuling  of  an  objection  to  a 
gnestion  pot  to  the  plaintiff  in  rebuttal,  as  to  what  would  have 
been  the  praper  thing  for  the  conductor  to  have  done  in 
n^lMHoMf"'  caring  for  the  hogs  under  the  circumstaneeB  testified  to 
by  the  conductor  (defendant's  witnees).  The  plaintiff 
was  qualified  to  testify  if  snch  evidence  was  admiesible.  It  cannot 
be  assumed  that  alt  the  jurors  had  had  such  experience  as  would 
have  enabled  them  to  judge,  as  welt  as  the  witnees,  as  to  what 
course  should  have  been  pni-sned.  The  witness  might  have  an- 
swei-ed  tliat  they  elioutd  have  been  showered  of  tener  or  longer,  or 
he  might  have  indicated  some  other  course  as  proper,  concerning 
which  the  jury  may  have  been  uninformed.  In  fact,  the  answer 
suggested  a  course  which  probably  would  have  been  in  accordance 
with  the  ordinary  judgment  of  men;  that  is,  setting  the  ear  off  at 
a  station,  and  unloading  the  animals.  The  question  was  unobjection- 
able, and,  if  this  answer  was  deemed  to  state  wliat  was  within  the 
Erovince  and  general  information  of  the  jnry,  there  should  hare 
een  a  motion  to  strike  it  out. 
Order  refusing  a  new  trial  affirmed. 


^d  by  Google 


CABKIER — LIVE  STOCK.  91 

Liability  of  Carrlar  for  Nagllgsnca  <n  tho  Carriage  of  Liv«-ttock. — See 
note.  30  Am.  &  Bag.  B.  R.  Cub.  23. 

What  are  Injuriei  RetuKIng  from  inherent  Nature  or  Propeniltlei  of  Anl- 
maii]  for  which  Carrier  It  not  Liable. — The  following  ue  instances  in  which 
tlie  currier  has  been  excused  for  an  injury  or  loss  resulting  from  the  intrinsic 
qualities  and  propenaitieBoftheliTe-stock  transported:  Where  a  horae's  shoes 
were  not  removed,  or  a  halter  was  attached  to  his  jaw  in  such  a  manner  as  to- 
cause  restiveness.  Evans  «.  Fitchburg,  etc.,  R.  Co.,  Ill  Heaa.  42.  Where  an 
animal  dies  or  ia  injured  b;  heat  or  cold,'  or  want  of  food  while  in  course  of 
transportatioD,  without  anjr  negligence  on  the  part  of  the  carrier.  Haslin  v. 
Baltimore,  etc.,  R.  Ck>.,  U  W.  Va.  180;  Kirbj  v.  Gt.  Western,  etc.,  R.  Co., 
18  L.  T.,  N.  S.  658.  Where  one  of  a  pair  of  hones  kicks  and  kills  or  injurea 
the  other  in  the  car,  if  the  car  was  suitable,  and  proper  care  was  taken  to 

Crent  such  injuries.  Evans  v.  Fitcbburg,  etc,  R.  Co.,  Ill  Mass.  113. 
ere  a  mute  being  transported  in  a  railroad  car,  kicks  through  the  slats  at 
the  side  of  the  car  and  is  killed,  without  fault  of  the  carrier,  it  being  the 
nature  of  the  mule  to  kick.  Indianapolis,  etc.,  R.  Co.  d.  Jur;.,  8  111.  App.  100. 
Where  an  unrulj  jackasa  is  thrown  or  falls  oS  a  ferry  boat,  through  hisown  rest- 
lessness or  Ticiousaees,  the  ferry-man  being  guilty  of  no  negligence.  Hall  v, 
Renfro,  3  Mete.  (Ky.)  51.  Where  the  animal  takes  foght,  after  the  journey 
is  ended,  at  a  light  displayed  by  a  servant  of  the  company,  and  dashes  upon 
the  track  and  is  killed.  Roberta  v.  Qrent  Western,  etc.,  R.  Co.,  4  Ad.  &  El. 
IT.  B.  506.  Where  a  bullock  escapee  by  his  own  exertions  from  the  truck  in 
which  he  ia  being  transported,  without  negligence  by  the  carrier,  the  truck 
itself  being  sufficient,  and  is  lost,  Blower  e.  Qt.  Western,  etc.,  R.  Co.,  L.  R. 
7  C.  P.  665;  41.  L.  J.  C.  P.  268;  27  L.  T.  N.  8.  888;  20  W.  R.  776;  where  an 
animal  while  being  carried  perishes,  partly  through  its  own  nnmly  conduct 
ftnd  partly  from  the  effects  of  a  storm,  the  carrier  being  chargeable  with  no- 
negligence.  Nugent  e.  Smith,  L.  R  1  C.  P.  Div.  433.  Where  horses  being- 
transported  by  water,  in  consequence  of  a  storm,  break  down  the  partitiona 
between  them,  and  by  kicking  each  other  some  of  them  are  killed.  Gabaj 
*,  LlovtI.  8  B.  &  C.  798;  Lawrence  e.  Aberdein.  5  B.  &  Aid.  107. 

Where  the  Injury  It  Caused  by  Combined  Negllganea  of  the  Carrier  and 
the  Nature  and  Propensities  of  the  Live- stock. ^ Where  the  negligence  of 
the  carrier  is  the  primary  cause  of  the  injury,  althongh  but  for  the  nature 
and  propensities  of  the  live  stock  carried  no  loss  would  have  resulted,  the 
carrier  is  responsible.  Powell  v.  Pennsylvania  R.  Co.,  82  Pa.  St.  414 ;  Ritz 
e,  Pennsylvania  R  Co.,  3  Phila.  82;  East  Tenn.,  etc.,  R.  Co.  e.  Whittle,  27 
Ga.  686;  Ohio,  etc..  R  Co.  u.  Dunbar,  20  111.  838;  St.  Louis,  etc.,  R  Co.  v. 
Doorman,  72  III.  504;  Indianapolis,  etc.,  R  Co.  v.  Strain,  81  111.  504;  Welch 
e.  Pittaburg.  etc.,  R  Co.,  10  Ohio  St.  65 ;  Great  Western,  etc.,  R.  Co.  o,  Haw- 
kins. 18  Mich.  427;  S.  C.  17  Mich.  57;  Clarke  b.  Rochester,  etc.,  R.  Co.,  14 
N.T.  670;  Congers.  Hudson  River,  etc.,  R.  Co.,  8  Duer.  (N.  Y.)  875;  Har- 
ris D.  Northern,  etc,  R.  Co.,  20  N.  Y.  383;  Smith  v.  New  Haven,  etc.,  R. 
Co.,  12  Allen  (Mass.).  B81;  Evans  e.  Pitchburg,  R.  Co.,  Ill  Mass.  143;  Pratt 
«.  Ogdensburg,  etc.,  K.  Co.,  103  Mass.  So7;  Rhodes  c.  Louisville,  etc..  R.  Co., 
9  Bush  (Ky.),  888;  Peters  t.  NeV  Orleans,  etc.,  R.  Co.,  16  La.  Ann.  222. 

The  following  are  eiaraplea  of  cases  holding  the  carrier  liable  under  such 
circumstances :  Where  the  contract  of  transportation  contained  a  clause  pro- 
viding that  the  carrier  should  be  free  from  liability  for  any  accident  occa- 
sioned by  the  animals'  restiveness,  and  an  accident  occurred  through  such 
restivenesB,  but  the  latter  resulted  from  the  negligence  of  the  railroad  com- 
pany, Moore  e.  Great  Northern,  etc.,  R.  Co.,  L.  R.  10  Irish,  06;  Gill  o.  Man- 
chester, etc.,  R  Co..  43  L.  J.  Q.  B.  80;  L.  R.  8  Q.  B.  186.  See  also  Kendall 
e.  London,  etc.,  R.  Co.,  L.  R.  7  E«.  873.  Where  hogs  in  course  of  transpor- 
tation become  heated  from  being  overcrowded  and  the  carrier  when  informed 


^db;  Google 


yy  COLDMBUS  AND   WESTER^   R.  CO.  V.  KENNEDY. 

of  the  fact  nefflected  to  apply  water  to  them,  alleging  that  his  pump  was  out 
of  repair.  IlbDoia,  etc.,  R.  Co.  e.  Ad&ms,  43  HI.  174.  See  also  Toledo,  eb:., 
B.  Co.  V.  Thompson,  71  111.  4S4.  Where,  owing  to  the  wreck  of  a  pauenger 
train,  a  car-load  of  hogs  was  delayed  twelve  hours  without  being  unloaded 
or  receiving  attention,  and  injury  resulted  from  ''piling  up"  of  the  animals, 
or  Uieir  itruggling  to  get  near  to  or  away  from  the  car  doors,  which  propen- 
sity is  only  exhibited  when  the  train  is  standing,  Kinnick  e.  Chicago,  etc., 
R.  Co.,  97  Am.  &  Eng.  R.  R.  Cas.  6S.  Where,  becaose  of  an  unreaaonable 
or  n^iigent  delay,  animals  perish  of  cold.  Uoulton  e,  St.  Paul,  etc.,  R.  Co., 
SI  Hion.  86;  S.  C.  12  Am.  &  Eng.  R.  R.  Cas.  18.  Where,  by  leaving  a  car 
window  open,  or  like  negligence,  m  consequence  of  which  the  animals  escape, 
oven  though  the  contract  expressly  stipulates  ag^st  liability  for  escapea. 
IndianapoGs,  etc,  B.  Go.  e.  Allen.,  81  Ind.  8M. 


OOLDUBUB  AND  WbSTBBH  B.  CO. 

f- 

Kennedt. 

(AdvMM  Com,  Georgia.     MareA  20,  1887.)- 

Section  8088  of  the  Qeorgia  Code  raises  the  presumption  of  the  nilnmd 
company's  negli^nce  in  cases  of  injury  to  persons  and  property.  An  action 
was  Drought  against  a  railroad  company  for  damages  to  stock  carried  hy  it. 
The  defendant's  evidence  merely  consisted  of  a  showing  from  the  appear- 
ance of  the  car  in  which  the  stock  bad  been  carried  that  the  train  had  not 
been  derailed.  No  employee  in  charge  of  the  train  wsa  produced  to  account 
(or  the  injury.     J3eM  ; 

That  the  section  of  the  Code  is  applicable  to  stock  shipments  under 
epecial  contracts  limiting  liability, 

That  the  statutory  presumption  of  the  company's  negligence  under  the 
oode  was  strengthened  by  the  preeumption  o(  fact  arinng  from  the  failure 
of  the  company  to  produce  material  witnesses,  and  that  a  refusal  to  set  aside 
a  verdict  against  the  company  was  a  proper  exercise  of  the  trial  court's  dis- 
cretion. 

Evidence  of  the  shipper's  understanding  of  a  contract  of  shipment  of 
stock  with  the  first  of  two  connecting  carriers,  and  that  the  contract  thus 
understood  had  not  been  performed  by  such  carrier,  is  immaterial  in  an  ac- 
tion for  injuries  to  the  stock  received  on  the  line  of  the  second  carrier,  with 
'Whom  the  shipper's  agent  bad  made  another  contract;  and  error  in  its  ad- 
iniaaioo  is  harmless. 

Bvideace  that  the  agent  of  the  defendant  company,  on  receipt  of  the 
injured  stock,  urged  plaintiff  to  take  and  do  the  best  he  could  with  them, 
aaying  that  the  company  would  make  it  all  right,  is  relevant  in  an  action 
against  the  company  for  damages,  as  part  of  the  rei  gettat,  whether  such 
{womise  be  binding  on  defendant  or  not. 

Appeal  from  Bnperior  conrt,  MuBCogee  county;  Willis,  Judge. 

Peahody,  Bramwn  <&  BatUe  for  plaintiff  in  error. 

tf,  M.  Smithy  J.  M.  Ruggdl,  and  C.  J.  Thornton  contra. 


^d  by  Google 


OAEEIEB — INJURY  TO  8TOOK.  99 

Hail,  J. — ^Eennedy  institated  his  suit  against  the  railway  com- 
panv  npoQ  ite  liability  as  carrier,  for  damages  done  to  certain 
Btock  wnich  lie  had  snipped  over  its  road.  The  special  defense 
set  up  to  this  action  was  that  Keuned;  shipped  this  v*cn. 

stock  from  Harrodsbnrg,  Kj.,  nnder  what  is  nsnally  known  ae  a 
contract  for  the  shipment  of  stock,  which  relieved  the  comptiny 
from  certain  liability  in  regard  tu  the  stock,  on  consideration  of 
the  rednced  rates  accorded  to  the  shipper,  and  of  his  free  passage 
over  the  road  to  enable  him  to  attend  to  the  stock  in  certain  re- 
spects. The  owner  accompanied  this  stock  from  Harrodsbnrs' to- 
Ohattanooga,  where  he  was  taken  sick,  and  had  to  lie  over.  The 
stock  were  taken  ont  of  the  car  at  Chattanooga,  fed  and  watered, 
and,  as  he  contends  (thongh  that  is  denied  by  the  company),  trans- 
ferred at  Chattanooga  by  the  railroad  anthorities  there,  to  another 
and  different  car  from  that  m  which  they  were  bronght  from 
Harrodsbnrg  to  Chattanooga.  No  one  accompanied  the  stock  from 
Chattanooga  to  Atlanta.  Upon  reaching  the  latter  point  two  of 
Hie  horses  were  found  to  be  dead.  The  balance  oi  them  were 
taken  otit  and  carried  to  a  livery-atable  in  this  place,  and  there  fed 
and  watered.  The  proprietor  of  that  stable  songht,  as  it  seems, 
to  forward  them  upon  the  original  receipt  taken  ;  bnt  to  this  the 
Atlanta  &  West  Point  B.,  which  connected  with  the  defendant  at 
Opelika,  dissented,  and  reqnested  him  to  ship  the  liorsea  in  his  own 
name,  givinc^  him  a  contract  similar  in  most  respects  to  that  which 
was  first  taken ;  at  least,  the  variations  were  very  slight.  Tiie 
plaintiff  followed  hia  stock.  Not  finding  them  in  Atlanta,  he 
went  BTonnd  by  Macon,  and,  when  he  reached  Colnmbns,  he  fonnd 
that  the  stock  had  just  aiTived  at  this  point.  Several  of  the  horses^ 
were  serionsly  damaged  in  transportation ;  in  fact,  the  whole  lot 
of  stock  was  in  bad  condition,  being  brnised  and  thrown  down, 
etc.  He  at  first  rafneed  to  accept  them  at  the  hands  of  this  com- 
pany ;  bnt,  as  he  says,  he  was  assured  by  the  agent  of  the  companr 
that  t^e  company  desired  him  to  take  them  and  do  the  best  witn 
them  that  he  conld,  and  that  they  wonld  aid  him  in  getting  com- 
pensation for  the  damage.  It  appeared  from  uncontradicted  evi- 
dence that  the  stock  shipped  from  Atlanta  were  in  good  condition 
when  put  aboard  of  the  car  on  the  Atlanta  &  West  Point  R. 

The  jnry  fonnd  a  verdict  for  the  plaintiff  for  the  amount  of  in- 
jury done  to  the  stock.  The  defendant  made  its  motion  for  a  new 
trial  upon  the  general  ground,  and  also  on  the  following  special 
gronnds:  (1)  That  there  was  error  in  permitting  the  plaintiff  to 
testify  that  his  understanding  was  that  the  stock  shonld  come 
through  in  the  same  car  in  which  it  was  loaded  at  Harrodsburg,  Ky.;. 
(2)  becanse  the  conrt  erred  in  admitting  the  testimony  of  a  livery- 
stable  keeper  at  Chattanooga,  who  tola  the  plaintiff  that  tlie  rail- 
road men  at  that  .point  had  ciianged  the  stock  to  another  car ;  (3)  ia 


^d  by  Google 


94  COLUMBD3  AKD   WESTERN  R.  00.  V.  KENNEDY. 

Admitting  the  testiinoDy  of  what  waa  aaid  by  the  agent  o£  trana- 
portation  of  tlie  defendant  company  at  Colnmbos,  wTien  the  plain- 
tiff applied  for  his  etock.  The  testimony  was  in  these  words ; 
■"  Wlien  I  found  tlie  stock  so  badly  brnised  and  injured,  I  told 
'Williams,  the  railroad  affsnt,  I  did  not  want  to  take  them.  He 
told  me  to  take  them  ana  do  the  best  I  coald  with  them,  and  the 
xaili'oad  company  wonld  make  it  all  right." 

1,  Whether  the  understanding  of  this  party,  as  to  tlie  car  in 
-rhioh  this  stook  w(ia  to  be  shlpp^  through  was  admissible  or  not, 
•uwtmtmtmm  ^^  ^^^  satistled,  under  the  oincumBtanoes  of  this  case, 
j«>acu.  (jjgj  jt  ^gj  totally  immaterial,  and  coald  and  oaghtto 
have  had  no  inflaenoe  upon  this  finding.  The  same  thing  is  true 
as  to  the  sayings  of  this  livery-stable  keeper  at  Chattanooga,  as  to 
the  change  of  this  stock  from  one  car  to  another.  The  aUxk  was 
in  good  condition  when  it  readied  Atlanta,  and  when  tiiis  new 
contract  of  sliipment  was  taken. 

3.  The  abjection  to  the  plaintiff's  testimony  as  to  what  the  de- 
«Ttiniici'-B»  Kndaiit*s  agent  of  transportation  said  to  the  plaintiff  at 
TfSSirr!  '^  OolnmboB,  we  do  not  tuink  was  well  founded.  That 
*°'^-  is  certainly  a  part  of  the  res  ffeatcB  appertaining  to  the 

trausporliatioQ  of  that  stock.  We  do  not  go  eo  lar,  however,  as  to 
eay  that  the  company  was  bound  by  the  representations  of  this 
.agent,  that  it  wonld  make  this  damage  good,  upon  compliance  by 
toe  plaintiff  with  the  condition  he  mentioned. 

3.  This  leaves  ns  to  the  consideration  only  of  the  propriety  of 
the  finding  of  the  jury,  which  comes  up  nnder  the  general  ground 
of  the  motion  for  new  trial,  that  the  vei'dict  waa  oou- 
trn'SS^aZw  trary  to  law  and  evidence.  By  section  3033  of  the 
Code,  in  cases  of  injnry  to  person  or  property,  the  pre- 
sumption in  all  cases  is  against  the  company,  that  the  injury  was 
the  result  of  their  negligence;  and  to  relieve  themselves  of  this 
jrresninption  it  is  incumbent  npon  them  to  show  tliat  they  were  in 
the  exercise  of  all  ordinary  care  and  diligence.  This  ttiey  mnst 
do.  In  this  instance  it  was  not  done.  And  this  presumption  is 
applicable  ns  well  to  an  action  founded  upon  their  genffl-al  lia- 
bility, as  to  one  founded  on  such  a  contract  as  that  under  wliich 
thuy  contended  these  Iiorsos  were  shipped.  They  showed,  from 
tlie  appearance  of  the  car  only,  that  tne  train  on  which  these 
Jiorees  had  been  brought  to  Columbus  liad  not  been  derailed.  They 
sliowed  how  this  injury  might  have  happened,  but  not  how  it 
actually  Imppened.  It  is  to  be  borne  in  mmd  that  not  one  of  the 
employees  in  charge  of  this  train  was  introduced  as  a  witness  on 
the  trial,  to  account  for  this  injnry.  Certain  presumptions  of  fact 
arise  from  the  failure  to  introduce  these  parties,  as  has  been  re- 
peatedly determined  by  this  court,  and  once  very  lately. 

We  therefore  think  that  there  was  a  case  made  out  which  would 


i,z.dbvGoOgle 


BAOOAQE — PASSENaKBS — ^PRA.CTIOE.  B6 

anthorize,  though  it  did  not  abeolntelj  demand,  this  verdict  And 
Te  cannot  eaj  that  there  was  any  abiiBe  of  diecretion  in  OTerroling 
this  motion  tor  new  trial,  the  presnmption  of  negligeooe  arising 
from  the  iaJQ^  not  being  overcome  b;  the  evidence  in  the  case. 
Jadgment  amnned.    ' 

Sea  previonB  caae  and  note^ 


-    LotmriLLB  AND  Nabhtills  S. 

{Adrntnee  Oat,  United  BtaUt  Bttprtm*  Oowt.     Oddbtr  81,  1887.) 

A  nilroad  company  ii  not  responBlbla  for  the  low  of  a  bas  oonUning 
manej  and  jeweli?,  carried  in  the  hjuid  of  a  paueogei  and  by  Mm  acddeot- 


aner  and  je 
ly  dropped 
a  lo«a,  it  re 


Under  the  praotioe  is  Lonluana,  the  circuit  court  o(  the  United  States, 
after  ordering  a  petition  to  be  dismissed  u  showing  no  cause  of  actioo,  but 
with  leave  to  file  an  amended  petition,  may,  at  the  nearin^  on  the  amended 

Ctition,  amend  the  order  allowing  it  to  be  filed,  by  pronding  that  it  shall 
treated  aa  a  mere  amendment  to  the  origiDal  petition,  and  thus  preclude 
the  piunliS  from  contesting  a  mateiial  fact,  within  his  own  knowledge 
averred  in  that  petition. 

This  was  an  action  against  a  railroad  company.  Jndgment  for 
defendant.  Plaintifi  ened  oat  this  writ  of  error.  The  case  is 
stated  in  the  opinion  of  the  court. 

0.  B.  Sanaum  for  plaintiff  in  error. 

l^ama«  L.  Bayne  {Georga  Denegre  was  with  him  on  the  brief) 
for  defendant  in  error. 

Ghat,  J.^-TIiib  was  an  action  against  a  railroad  corporation  by 
a  pasBencer  to  recover  for  the  lose  of  a  handbag  and  its  contents. 

The  plaintiff,  a  married  woman  suing  by  authority  of  her  hus- 
band, alleged  in  the  original  petition  that  on  October  25, 1883,  the 
defendant,  being  a  common  carrier  of  goods  and  persons  for  hire, 
received  her  into  one  of  its  care  as  a  passenger  from  lier  summer 
residence  at  Puss  Ohristian,  in  the  State  of  Misgisgippi,  ricn. 

to  her  winter  i-eaidence  in  New  Orleans,  having  in  W  hand,  and 
in  her  immediate  custody,  possession,  and  control,  a  leatliern  bag 


^d  by  Google 


96  HKNDEESON  V.  LOUISVILLE  AND  NASHVILLE  B. 

of  a  kind  asaallj  carried  b;  women  of  her  conditioii  and  station  io 
Bociety,  containing. $5800  m  bank  bills,  and  jewelry  worth  $4075; 
that  while  the  plaintiff,  holding  the  b^  in  her  hand,  was  attempt- 
ing to  close  an  open  window  next  her  Beat,  through  which  a  cold  . 
wind  wae  blowing  dpon  her,  tlie  bag  and  ita  contents,  by  eome 
canse  unknown  to  her,  accidentally  fell  from  her  hand  through  the 
open  window  npon  the  railroad ;  tLat  she  immediately  told  the  con- 
ductor of  the  train  that  the  bag  contained  property  of  hers  of  great 
valae,  and  requested  him  to  stop  the  train,  and  to  allow  her  to- 
leave  the  car  and  retake  the  bag  and  ita  contents ;  but  be  refused 
to  do  so,  although  nothing  hindered  or  prevented  him,  and,  against 
her  protestations,  caused  the  train  to  proceed  at  great  speed  for 
three  miles  to  Bay  St.  Louis,  where  he  stopped  the  train,  and  she- 
despatched  a  trusty  pei-son  to  the  place  where  the  bag  had  fallen  ; 
bat  before  he  arrived  there  the  bag  with  its  contents  was  stolen 
and  carried  away  by  some  person  or  persons  to  the  plaintiff  un- 
known, "  and  was  wholly  lost  to  the  plaintiff  by  the  gross  negli- 
gence of  the  defendant  as  aforesaid." 

The  farther  averments  of  the  petition,  undertaking  to  define 
speciiically  the  nature  and  effect  of  the  obligation  assumed  by  the 
defendant  to  the  plaintiff,  are  mere  conclusions  of  law,  not  admit- 
ted by  the  exception,  in  the  nature  of  a  demurrer,  which  was  filed 
br  the  defendant,  in  accoi-dance  with  the  practice  in  Lonisiana,  npo" 
the  ground  that  tlie  petition  set  forth  no  canse  of  action.  The 
circuit  court  sustainea  the  exception,  and  ordered  the  petition  to 
be  dismissed.     20  Fed.  Bep.  430. 

On  the  day  the  judgment  was  i-endered,  and  before'it  was  signed,, 
it  was  amended,  on  the  plaintiff's  motion,  by  adding  the  words 
"  unless  the  plaintiff  amend  her  petition  so  as  to  state  a  cause  of 
action  within  five  days." 

Within  that  time  the  plaintiff  filed, an  amended  petition,  alleg- 
ing that  the  defendant  received  the  plaintiff  aa  a  passenger,  and 
the  bag  and  its  contents  as  part  of  her  luggage,  to  be  safely  kept 
and  carried  by  the  defendant  as  a  common  carrier  to  New  Orleans, 
and  there  delivered  to  the  plaintiff;  that  the  defendant  did  not  so 
carry  and  deliver ;  and  that  the  things  were  lost  by  the  negligence 
and  improper  conduct  of  the  defendant,  and  not  by  any  want  of 
cure  on  the  part  of  the  plaintiff. 

The  defendant  excepted  to  the  amended  petition,  because  the 
plaintiff  had  no  right  to  file  one  after  the  original  petition  had 
been  dismissed  as  aforesaid,  and  because  the  amended  petition  was 
inconsistent  with  the  original  petition,  especially  in  tJiat  tlie  original 
petition  alleged  that  the  bag  and  its  contents  were  held  and  Kept 
by  the  plaintiff  in  her  immediate  possession,  control  and  custody, 
whereas  the  amended  petition  alleged  that  the  defendant  received 
them  as  her  luggage. 


^d  by  Google 


BAQQAOE — PAS8ENGEES — PRACTICE.  97 

After  argument  on  this  exception,  the  order  allowing  the  plain- 
tiS  to  tile  an  amended  petition  waB  modified  b;  the  eoart  bo  as  to 

Eroride  tiiat  tlie  amended  petition  slionld  be  deemed  and  ehould 
are  eSect  only  as  an  addition  to  tbe  original  petition  ;  aud  the 
exception  to  the  amended  petition  was  Bustained  and  the  action 
dismissed.     Tbe  plaintiff  sued  out  this  writ  of  error. 

The  more  statement  of  the  case  is  GulHcient  to  demonstrate  the 
correctness  of  tbe  judgment  beiow. 

The  facts  alleged  iti  the  original  petition  constitnte  no  breach  or 
neglect  of  duty  on  the  part  of  the  defendant  towards  the  plaintiff. 
She  did  not  entmst  her  bag  to  the  exclusive  custody  and  care  of 
tbe  defendant's  servants,  bnt  kept  it  in  her  own  imme-  mo  nmn  v> 
diate  possession,  without  informing  the  defendant  of  <>»"*"■ 
the  value  of  its  contents,  until  after  it  had  dropped  from  her  hand 
throagh  the  open  window.     Even  if  no  negligence  is  to  be  im- 

Euted  to  her  in  attempting  to  shut  tbe  window  with  the  bag  in 
er  band,  jet  her  dropping  tbe  bag  was  not  the  act  of  tbe  defend- 
ant  or  its  servants,  nor  anytliini;;  that  they  were  bound  to  foresee 
or  to  guard  against ;  and  after  it  had  happened,  she  had  no  legal 
right,  for  the  parpoee  of  relieving  her  from  the  consequences  of 
an  accident  for  which  they  were  not  responsible,  to  require  them  to 
stop  the  train,  short  of  a  nsnal  station,  to  tbe  delay  and  inconveni- 
ence of  other  passengers,  and  the  possible  risk  of  collision  with 
other  trains. 

This  action  being  on  the  common-law  side  of  the  circnit  comt, 
tbe  pleadings  and  practice  were  governed  by  the  law  of  the  State. 
Rev.  Stat.  §914.  By  article  419  of  tlie  Code  of  Practice  of  Louisi- 
ana, "  after  issue  joined,  the  plaintiff  may,  with  the  leave  of  the 
court,  amend  his  original  petition;  provided  the  amendment  does 
not  alter  the  snhstancQ  of  Lis  demand  by  making  it  different  from 
the  one  originally  brought."  An  amendment  wholly  inconsistent 
with  the  allegations  of  tlie  original  petition  cannot  be  allowed. 
Barrow  v.  Bank  of  Louisiana,  2  La.  Ann.  453.  It  is  by  no  means 
clear  that  a  petition,  which  has  been  diBmiseed  as  showing  no  cause 
of  action,  can  be  afterwards  amended  in  matter  of  substance.  Hart 
V.  Bowie,  34  La.  Ann.  323.  But  if  the  order  allowing  an  amended 
petition  to  be  filed  could  be  lawfntly  made  in  this  case,  Powx«^^m> 
so  long  as  final  judgment  had  not  been  entered,  it  was  >an. 
equally  within  the  power  of  tbe  conrt  to  modify  that  order  so  as 
to  treat  the  amendment  as  a  mere  addition  to  the  original  petition, 
and  thus  to  preclude  the  plaintiff  from  oontestiag  a  material  fact 
within  her  own  knowledge,  which  she  had  once  solemnly  averred. 
Judgment  affirmed. 

What  It  Baggage.  —It  mnit  be  left  to  the  Jutj  to  determine  in  each  par- 
ticular caae,  from  the  habit*,  laok,  and  coaoltion  of  th«  part;,  tbe  extent 
81  A.  A  E.  It  Ctw.— T 


^d  by  Google 


98  HENDEB80N  ».  HASHVILLE  AND  LOUISVILLE  K. 

and  reuonable  ezpenMS  of  the  journey,  together  with  all  the  circumBCancea 
relevant  to  the  inquirj,  wh&t  articles  of  property,  aa  to  quantity  and  value, 
contained  in  a  pacseDger's  trunk  or  valise,  can  be  deemed  baggage  subject 
to  the  power  of  the  court  to  correct  any  abuse;  and  it  is  improper  for  thA 
judge  to  deai^iate  by  name  what  articles  may  be  included  in  determining 
the  Daegtge  of  a  traveller.  Brock  p.  HcQale,  14  Fla.  533;  b.  c,  U  Am.  Rep. 
SS6.  See  also  Bomar  v.  Maxwell,  9  Humph.  (Teon.)  633;  s.  c,  61  Am.  Dec. 
682;  Ouimit  v.  Kenabaw,  83  Ter.  604;  Kansas  City,  etc,  R.  Co.  v.  Hottuod, 
88  Am.  ft  Bng.  R.  R.  Cas.  481. 

The  court  said,  in  Johnson  e.  Btoae,  11  Humph.  (Tenu.)  8S1:  "It  ia  not 
practicable  to  atata  with  precise  accuracy  what  shall  be  included  by  the 
term  baggage.  It  certainly  includes  articles  of  necessity  and  personal  con- 
Tenience  usually  carried  by  passenKers  for  their  personal  un.  And  what 
these  may  be  will  Tery  much  depend  upon  the  habita,  tastsa,  and  resonrcea 
of  the  pasaeoger." 

"The  contract,'' aud  Field,  J.,  ia  Hannibal  R,  Co.  «.  Swift,  13  WalL 
(U.  8.^  3SS,  "to  carry  the  person  only  implies  an  undertaking  to  transport 
eucb  limited  quantity  of  articles  as  are  ordinarily  taken  by  travellera  for  per- 
■onal  uae  and  conTenlence,  such  quantity  depending  of  course  upon  the 
station  of  the  party,  the  object  and  length  of  his  journey,  and  many  otbw 
conaiderationB.''  This  language  was  quoted  in  R.  EL  Co.  e,  FraloflF,  10  Otto 
(U.  8.),  M,  where  an  action  was  brought  to  recover  damages  for  the  break- 
ing'into  and  stealing  from  a  trunk,  a  quantity  of  lace  valued  at  (75,000  on  a 
Tulroad  passage  from  Albany  to  Niagara  Palis.  It  was  shown  that  the  plain- 
tiff had  brought  to  the  Uolted  States  a  laige  quantity  of  wearing  apparel,  in- 
eluding  costly  dresses  and  valuable  laces  which  she  had  been  accustomed 
to  wear  when  on  visits,  to  the  theatres,  dinners,  balls,  etc.,  in  six  trunka,  of 
which  that  referred  to  was  one.    Judgment  was  obtained  for  (10,000. 

Baggage  of  course  includes  wearing  apparel,  and  this  is  not  limited  to  such 
apparel  only  aa  the  traveller  must  necessarily  use  on  his  journey.  Regard  being 
had  to  the  condition  and  life  of  the  parties,  recovery  may  be  had,  if  at  al^ 
for  the  loss  of  all  such  wearing  apparel  aa  the  people  had  provided  for  their 
personal  use,  and  aa  would  be  necesiary  and  reaaonaUe  for  tbem  to  use  aftar 
their  arrival  and  settlement  in  the  country.  So  cloth,  not  yet  made  into  gar- 
ments, which  may  have  been  procured  for  manufacture  into  wearing  apparel 
and  which  is  intended  to  be  used  in  such  wsj,  to  a  reasonable  amount,  may  be 
profierly  included  as  part  and  parcel  of  the  party's  wearing  apparel  So  alao 
ba^^age  consists  of  such  jewelry  and  such  peruonal  ornaments  as  are  approini- 
ate  to  the  wardrobe,  rank,  and  social  powtion,  and  no  further.  As  to  bedding 
and  bed- furnishings,  not  intended  for  use  on  the  journey,  curtains,  table-cloths 
and  covers,  books,  pictures,  and  albums,  they  come  under  the  head  of  house- 
hold goods,  and  not  personal  bagga^,  and  cannot  be  recovered  for,  and 
must  be  excluded  from  the  consideration  of  the  jury  unless  it  is  found  that 
the  agent  of  the  railroad,  when  he  sold  the  tickets,  was  informed  or  under- 
stood that  the  baggage  which  was  to  be  carried  with  the  passengers  included 
articles  of  this  character;  if  he  so  understood  and  consented  to  accept  the 
property  as  baggage  under  check,  if  the  road  is  liable  at  all,  it  is  liable  the 
same  as  for  wearing  apparel,  otherwise  not.  So,  too,  painters'  utensils,  draw- 
ings, and  tailors'  utensils  cannot  be  included  aa  baggage;  and  no  recovery 
can  be  bad  for  the  lossof  this  property  unless  it  appears  that  the  road  through 
its  agent  knew  or  understood  that  such  articles  were  in  the  box  or  trunk, 
and  accepted  them  as  baggage.  Hauretzv.  NewTork,  etc.,  R.  Co.,  21  Am.  & 
Eng.  R.  R.  Cas.  286;  Chic^,  etc.,  R.  Co.e.  Conklin,  82Ean.SS;  Lake  Shore, 
etc.,  R.  Co.  e.  Foster,  104  Ind.  398. 

Watches  and  jewelry,  when  intended  to  be  worn  on  the  person,  have  been 
held  bafspkge  in  the  following  cases:  UcQill  e.  Rowland,  3  Pa.  St.  4S1 ;  Tor- 


^d  by  Google 


OABRIEES — GOODS   DEPOSITEE — BAQGAQK.  99 

Eyo.  WilliamB,  3  D»ly  (N.  T.),  168;  McConnick  n.  Hudson  River  H.  Co.,  4 
D.  Smith  (N.  T.),  181;  N.  Y.,  etc.,  R.  Co.  n.  Pralofl,  10  Otto  (tJ.  8.),  !J4; 
Jones  c.  Voorhees,  10  Ohio,  140;  American  Contract  Co.  v.  Crou,  8  Buah 
(Ky.),  472;  b.  c,  3  Am.  Hep,  471;  Coward  v.  Bast  Tenn.  B.  Co.,  16  Lea 
(Tenn  ),  ass ;  HcDougall  v.  Allan,  12  Low.  Can.  821.  Compare  Hich.  Cent.  S. 
-Co.  s.  Carrow,  ?S  111.  MS.  And  it  has  been  decided  that  uoleu  ao  Intended  to 
be  worn  on  the  person,  bullion,  plate,  watches,  and  jewelry  are  not  baggage. 
Honey,  except  sroallsuins  necessary  fortravelling  ezpenras,  Ib  not  ba^sge. 
Merrill  e.  GrinneU,  80  N.T.  594;  Grant  o. Newton,  1  B.  D.  Smith  (N.Y,),  95; 
Whitmore  r.  Steamer  Caroline,  SO  Mo.  513;  Jordan  e.  Fall  River  R.  Co..  5 
■Cush.  (Mass.)  09;  Dunlap  r.  International  Steamboat  Co.,  98  Hasa.  871; 
Dibble  o.  Brown,  13  Qa.  217;  Davis  t.  Michigan,  etc.,  R.  Co.,  22  III.  278; 
Orange  Co.  Bank  o.  Brown,  9  Wend.  (N.  Y.)  85;  s.  c,  M  Am.  Dec.  129; 
Hiclcox  «.  HaugaCuck  R.  Co.,  81  Conn.  981;  Hutching*  v.  Western,  etc.,  R. 
Co.,  25  a«.  «t ;  Phelpa  e.  London,  etc.,  R.  Co.,  19  C.  B.  (N.  S.)  331 ;  Butcher 
«.  Londoa,  etc.,  R.  Co.,  16  C.  B.  13;  Ulinois,  etc,  R.  Co.  v.  CopeUnd,  24  III. 
862;  Cincinnati,  etc.,  R.  Co.  «.  Harcus,  88  III.  219;  Weed  e.  Saratoga,  etc., 
R.  Co.,  10  Wend.  (N.  Y.)  084;  Bomar  e.  Maxwell,  9  Humph.  (Tenn.)  620; 
a.  c,  01  Am.  Dec.  683;  Doyle  n.  Eiser,  6  Ind.  343;  First  National  Bank  c. 
Harietta,  etc.,  R.  Co.,  20  Ohio  St.  959;  a.  c,  S  Am.  Bep.  SOO.  But  money 
-CATfied  for  the  purpose  of  purchasing  clothes  at  place  of  destination  la  not 
baggage.     Hickox  e.  Naugatuck,  et«.,  R.  Co.,  81  Conn.  981. 

Ana  it  has  been  held  In  some  instanoee  that  even  such  small  sums  to  meet 
the  current  travelling  expenses  are  not  baggage.  Davis  «.  Mich.,  et«.,  R. 
Co.,  33  III.  978 ;  Or«nt  e.  Newton,  I  B.  D.  Smith  (N.  Y.),  00.  See  1  Am.  ft 
Kig.  Bnoyo.  of  Law,  1012. 


iLLmoiB  Cent.  B.  Oo; 

V. 

TBonsTtm  et  al. 
{AdMiM  Oms,  IBuMppL    m»y  S4, 1887.) 

"in  an  action  against  a  railroad  company  for  loss  of  baggage  delivered  to  it 
for  shipment,  the  court  gave  an  instruction  to  the  effect  that,  if  the  gooda 
■were  delivered  to  the  agent  of  defendant  to  be  carried  over  its  road  to  a 
twrtain  point,  whenever  plaintiff's  Bslesman  ordered  them  to  be  shipped,  and 
they  were  burned  before  shipment,  then  it  was  incumbent  on  defendant  to 
show  that  they  were  burned  without  any  fault  on  its  part.  Held,  that  the 
instruction  was  erroneous,  whether  on  the  theory  of  a  imilment  for  hire  or  a 
gratuitous  Iwiiment. 

In  such  action  the  plaintifls'  evidence  was  that  the  iMggage  was  delivered 
to  the  baggage -master  of  defendant,  with  instructions  to  ship  to  a  specified 
place  the  nest  day,  unless  directed  to  the  contrary;  that  no  contrary  direction 
iraa  given;  and  that  defendant  did  not  ship  as  ordered.  The  defendant's 
evidence  was  that,  by  a  regnlation  of  the  company  known  to  plaintiffs,  no 
baggage  could  be  receir^  except  for  immediate  shipment,  and  that  the 
iMgga^- master  took  charge  of  plaintifEs'  baggage  as  a  mate  accommodation, 


^d  by  Google 


100  ILLINOIS  CENT.  E.  00,  V.  TK0U8TINE  et  al. 

without  any  iDstructioDs  u  to  shipment.   3AA,  th&t,  U  liable  at  all,  defendant 
is  only  liable  aa  a  carrier. 

Bridence  of  the  atatementa  made  by  defendant's  bsggu;e-msflter  to  plain- 
tifis'  salesmaD,  as  to  how  the  fire  occurred  which  destroyed  the  baggage,  A«fe{ 
admissible  as  part  of  the  r»  getttB. 

Appeal  from  circnit  conrt,  Lincoln  county. 

This  action  wae  bronglit  by  appellees  to  recover  the  valae  of 
certain  trnnks  and  their  content8,  wliich  had  been  burned.  The 
d>tc1aration  contained  several  counts,  some  chaining  appellant  aB  a 
common  carrier,  and  others  as  a  warehoaBcman.  Bowen,  a  drninmer 
or  traveling  salesman  for  appellees,  before  he  started  from  Jackson 
to  the  place  where  lie  lived  on  the  Iliinois  Central  railroad,  on 
Friday  evening  took  three  large  sample  trunks  from  the  hotel 
where  he  was  stopping,  and  delivered  them  at  the  depot  to  the 
baggage-master  or  the  railroad  company,  wiih  directions,  as  Bowen 
testified,  for  the  agent  to  ship  thera  to  him  (Bowen)  at  Hazlehurst 
on  the  road  the  next  evening,  unless  he  gave  orders  to  the  contrary. 
No  order  in  regard  to  the  shipment  was  sent,  and  the  trnnks  were 
not  shipped,  and  on  Sunday  night  following  they  were  burned  in 
the  baggage-room  of  the  railroad  company.  Bowen  received  no- 
check  and  paid  no  storage  for  the  trunks.  He  admitted  that  he- 
was  acquainted  with  the  ba^age  regulations  of  tlie  company. 
When  he  was  testifying  as  to  wliat  account  the  baggage-master 
gave  of  the  fire  when  the  trunks  were  called  for,  appellant  objected 
to  the  testimony.  The  objection  was  overruled,  and  exception  wa»- 
taken.  Walmsiey,  the  baggage-master  of  the  railroad  company, 
testified  that  the  trunks  were  not  received  or  kept  by  him  as  agent 
of  the  company,  but  merely  as  an  act  of  personal  kindness  to 
Bowen;  denied  that  anything  was  said  about  the  trunks  being 
shipped,  but  said  that  Bowen  requested  him  to  keep  them  until  he 
called  for  them,. or  gave  directions  what  should  be  done  with  them; 
that  it  was  a  regulation  of  the  company  tliat  baggage  should  not  be 
received  except  for  immediate  transportation.  On  this  testimony, 
verdict  and  judgment  wae  rendered  for  the  appellees,  from  which 
the  i-ailroad  company  appealed. 

W.  P.t&J.  B.  Harris  and  R.  E.  Thompson,  for  IllinoU  C3ent.. 
B.  Co.,  appellant. 

A.  G.  McN'avr  for  A.  &  J.  Troustine  &  Co.,  appellees. 

Abhold,  J. — Too  much  importance  has  been  attached  to  the 
counts  in  the  declaration  charging  appellant  as  warehonsemao. 
The  second  instmction  for  appellees,  to  the  effect  that,  if  the  goods 
were  delivered  to  the  agent  ot  appellant  to  be  carried  over  its  road 
to  Hazlehurat  whenever  Bowen  should  order  them  to  be  shipped,, 
and  they  were  burned  before  shipment,  then  it  was  incumbent  on 
appellant  to  show  that  they  were  burned,  without  any  faalt  on  it* 


^d  by  Google 


0AEBrsR3 — GOODS  DEPOSITED — BAGGAGE,  101 

part  or  that  of  its  agentB,  should  not  have  been  given.  Under  tlio 
"facts  asBDiued  hy  tliis  inetrnction,  a  higher  degree  of  proof  and  care 
was  imposed  on  appelhtat  than  is  required  by  law.  Whether, 
under  these  facts,  appellant  would  have  been  a  gratiiitone  bailee,  or 
-a  bailee  for  hire,  it  was  not  liable  for  any,  even  the  slightest,  fanlt 
or  want  of  care.  If  a  gratuitous  bailee,  it  was  liable  bailu-b  ut- 
only  for  gross  negligence,  and^  if  a  bailee  for  hire,  only  "!■■"■ 
for  reasonable  and  ordinary  care.  On  the  facts  of  record,  our  view 
-of  the  law  is  that  appellant  is  liable,  if  liable  at  all,  as  ean-ier,  and 
not  otherwise;  and  that,  upon  the  testimony  of  Bowen,  after  tJie 
lose  was  proved,  the  burden  of  proof  was  upon  appellant  to  show 
non-liability  as  carrier.  According  to  the  testimoTiy  of  Bowen,  ho 
delivered  the  baggage  to  the  agent  of  appellant,  to  be  shipped  on 
"its  road  to  him  (Bowen)  at  a  specified  place,  on  the  evening  of  the 
next  day  after  the  delivery,  unless  he  gave  directions  to  the  contrary. 
No  directions  not  to  aJiip  were  given,  and  after  the  time  elapsed 
when  they  were  to  have  been  given,  and  after  the  baggage  should 
have  been  shipped,  it  was  burned  in  the  baggage-room  of  appellant. 
■It  was  the  duty  of  appellant  to  ship,  on  not  receiving  directions  to 
the  contrary.  From  titat  time  it  held  the  bagj^ge  for  immediate 
shipment,  and  its  liability  as  carrier  attached.  2  Redf.  Eys.  46-49; 
Hutch.  Carr.  §  63 ;  Barron  v.  Eldredge,  100  Mass.  455. 

On  the  other  hand,  if  it  be  true,  as  Walmsley  testified,  that  it 
was  a  regulation  of  the  railroad  company  that  baggage  shonid  be 
Teceived  only  for  immediate  carriage,  and  if  the  baggage  regula- 
tions of  the  company  were  known  to  Bowen,  ae  he  admitted  they 
■were,  and  if  Walmsley  took  charge  of  the  trnnks  as  a  co«p*m'H 
Tnatter  of  accommodation  to  Bowen,  and  without  any  """""o™. 
-direction  as  to  their  being  shipped,  appellant  cannot  be  held 
responsible  for  the  loss,  either  as  carrier  or  otherwise.  The  objec- 
>tIoa  to  the  testimony  of  Bowen,  in  regard  to  what  Walmsley  told 
bim,  as  to  how  the  loss  occurred,  was  not  well  taken.  Walmsley 
was  the  proper  person  of  whom  to  make  inquiry  respecting  the  lost 
Ijaggi^e,  and  what  he  said  was  part  of  the  evidence  of  the  loss, 
■a.na  admisaible  as  res  gestm.  Tliomp.  Carr.  539 ;  Curtis  v.  Avon 
K.  Co.,  49  Barb.  148 ;  MorBe  v.  CounecticDt  Eiver  K.  Co.,  6  Gray, 
450. 

The  judgmeDt  is  reversed,  and  canse  remanded. 

Carrier't  Liability  for  Qoodi  Dapoilted.— The  depont  of  ^oods  in  a 
warehouse  as  accessory  to  the  carnage  and.  for  the  purpose  of  being  carried, 
impous  OD  a  carrier  the  liabilit;  of  a  carrier  and  not  that  of  a  warehoiiseman. 
Moffat  0.  Great  West.  R.,  IB  L.  T.  N.  8.  680;  Blossom  o.  Griffln,  8  Kern.  {N. 
T.)  B6B;  Ladue  o.  Griffith,  25  N.  T.  2ft4;  Wade  o.  Wheeler,  47  N.  Y.  668; 
Rogers  e.  Wheeler,  53  N.  Y.  368;  Whitbeck  e.  Holland,  45  N.  Y.  18;  BheU 
toB  p.  Merch.  Desp.  Trans.  Co.,  86  N.  Y.  Sup.  Ct.  687;  a.  c,  69  N.  Y.  268; 
'Clarke  e.  Needles,  36  Pa.  St.  838;  Fitchburg,  etc.,  B.  Co.  «.  Hanaa,  6  Qray 


i,z.dbvG00gle 


102  ILLINOIS   CENT.  R.   CO.  V.  TE0U8TINE  et  ol. 

(HaM.).  6SS;  Hickox  e.  Naugatuck,  etc.,  R.  Co.,  81  Conn.  281;  Micbigan^ 
etc.,  R.  Co.  e.  Shurtz,  7  Hich.  515. 

If  the  goods  are  loBt  by  fire  wl^Ue  awaiting  ttaipment,  the  oanieT  is  1iabl& 
to  the  same  extent  as  if  tbe  goods  were  in  tranut,  unless  bis  liability  bu  been 
modified,  limited,  or  restricted  witb  the  consent  of  the  shipper  or  owner  of 
the  goods.  Merriam  e.  Hartford  &  New  Haven  B.  Co.,  20  Conn.  854;  Trow- 
bridge p.  Chapin,  83  Conn.  595;  8  Redfield  on  Railways,  63,  f  174;  Ford  e. 
Hitchell,  21  Ind.  54;  Gleason  v.  Transportation  Co.,  63  Wis.  85;  O'BannOD 
e.  Southern  Express  Co.,  61  Ala.  4S1;  Oroevenor  e.  N.  Y.  Central  R.  Co.,  89 
N.  Y.  84;  Illinois  Central  R.  Co.  e.  Bmyser,  88  III.  SH;  Burrell  v.  North,  ft 
Car.  &  Eir.  Q80-,  Scbouler  on  Bailments,  881,  C.  4. 

Where  goods  are  deltrered  toacommoncarrierforshipmenl,  and  Teceived 
by  him  to  be  forwarded  in  tbe  UBual  course  of  business,  tbe  liability  of  » 
common  carrier  immediately  attaches;  and,  if  tbey  are  lost  by  an  accidental 
Are  while  in  the  carrier's  warehouse  awaiting  transportatioo,  he  ii  liabl» 
unless  his  common-law  liability  has  been  limited  by  an  agreement  with  the- 
sbipper.  Pittsburffh,  etc.,  R.  Co. «.  Barrett,  3  Am.  &  Sag.  R.  R.  Gas.  256; 
Little  Rock,  etc.,  B.  Co. «,  Hunter,  18  Am.  &  Eng.  R.  R.  Cas.  527. 

Where  goods  are  consigned  with  instructions  to  await  further  orders  from, 
tbe  consignor  before  carnage,  the  carrier  incurs,  at  tbe  utmost,  the  liability 
of  a  warebouBeman,  or  where  the  circumstances  show  a  retention  of  control  of 
the  Koods  by  the  consignor,  or  that  something  remains  undone  by  him  to- 
complete  the  delivery,  tbe  carriers'  liability  is  not  that  of  a  common  carrier. 
Barron  o.  Eldredge,  100  Mass.  455;  Watts  d.  Boston,  etc.,  R.  Co.,  106  Hasa. 
467;  Nichols  D.  Smith.  115  Haas.  882;  White  c.  Winnlssimmet  Co.,  ?  Cusb. 
(Uasa.)  165;  Clark  c.  Burns,  118  Mass.  275;  Judson  e.  Western,  etc.,  R.  Co;, 
4  Allen  (Mass.)  530;  Moses  e.  Boston,  etc!,  R.  Co„  82  N.  H.  71;  Reed  «. 
Phila.,  etc.,  R.  Co.,  3  HouBt.  (Del.)  176;  Orange  Co.  Banke.  Brown,  9  Wend. 
(N.  T.)  85;  Tower  b.  Utica,  etc.,  R.  Co.,  7  Hill  (N.  Y.)  47;  Blancbard  «. 
Isaacs,  3  Barb.  (S.  Y.)  3BB;  Cohen  t.  Frost,  3  Duer.  (N.  Y.)  336;  Rogers  o. 
Wheeler,  63  N.  Y.  363;  O'Neill  v.  New  York  Cent.,  etc..  R.  Co.,  60  N.  Y. 
138;  Gilbert  o.  New  York  Cent.,  etc.,  R.  Co.,  4  Hun.  fN.  Y.)  378;  McDonald 
e.  Western,  etc.,  R.  Co.,  84  N,  Y-  497;  Cohen  e.  Hume,  1  McCord  (S.  Car.> 
480;  Michigan,  etc.,  R.  Co.  f>.  Shurtz,  7  Mich.  515;  Gleason  c.  Ooodricb 
Trans.  Co.,  82  Wis.  85;  Lawrence  e.  W.  &  St.  P.  R.  Co.,  15  Minn.  390;  St, 
I»U)B,  etc.,  R.  Co.  V.  Montgomery,  89  III.  33B;  Pittsbnrgb,  etc.,  R.  Co.  e. 
Barrett,  8  Am.  &  Bng.  R.  R,  Caa.  256;  Hart  v.  Chicago,  etc.,  R.  Co.,  27  Am. 
&  Eng.  R  R.  Caa.  59.  Compart  Towers  v.  Utica,  etc..  R.  Co.,  7  Hill  (H. 
Y.)  47;  Ford  *.  Mitchell,  31  Ind.  54;  Trowbridge  «.  Chapin,  28  Conn.  696; 
Michaels  v.  New  York,  etc.,  R.  Co.,  80  N.  Y.  664;  Gatterno  d.  Adams,  12  C. 
B.  N.  8.  560;  Boy»  c.  Pink,  8  Car.  &  P.  861;  Symes  e.  Chaplin,  5  A.  &  E. 
684;  Miles  e.  Cattle,  6  Bing.  743;  East  India  Co.  e.  PuUen,  1  Stn.  690; 
BriDd  e.  Dale,  8  Car.  &  P.  907. 


^dbvGooglc 


0ABBIEB6 — CDNNEOTINO  UNES — BAQGAGE. 


■Obhteal  Tbubt  Co.  ov  New  Tobk  et  al.  v.  ■Wabash,  St.  L.  ahd  P. 

R.  Co.  et  al. 

In  re  Intervening  Petition  of  Hotlb. 

{Advatut  Com,  MUtovri.     Junt  33,  1887.) 

The  inittftl  currier  of  pertooal  baggage  over  connectiDg  tinea  of  railroad  is 
mot  liable  for  an  injury  to  the  baggage  at  a  point  beyond  the  terndnui  of  its 
own  line,  uoleaa  it  has  assumed  such  liabilit;  bj  express  u^reement,  or  anleae 
there  i(  some  arrangement  in  the  nature  of  a  partnership  between  it  and  the 
couneetiag  carriers;  and  a  finding  that  no  such  express  agreement  is  shown 
will  be  sustained,  where  it  appears  that  a  through  ticket  was  purchased  in 
the  nraal  way,  and  that,  although  the  purchaser  of  the  ticket  did  not  read 
th«  stipulationa  printed  on  it,  a  Btipniation  limiting  the  liability  of  the  ini- 
tial company  aelfiDg  it  to  losses  occurring  on  ite  own  line  was  printed  on  th9 
ticket. 

In  Eqnity.     ConBolt^ated  canee. 

I>!/er,  Lee  dblUlis  for  intervenor. 

Geo.  S.  Orover  and  H.  S.  Priest  for  defendant. 

Thayeb,  J.  Tiiifl  18  a  claim  for  eompensation  for  injnriee  to 
certain  bagj^a^  while  in  tranBit  from  St.  Louis  to  Boston,  via  the 
Wabasli,  Grand  Trunk,  West  Sliore,'  and  Boston  &  Fitehbwrg 
Kaiiroads.  The  injury  was  sustained  in  Canada  on  the  line  of  the 
Grand  Trunk  R.  Following  the  ruling  made  in  the  case  of 
Myrick  V.  Michigan  Cent.  R.,  107  U.  S.  102,  1  Snp.  Ct.  Eep. 
425,  tlie  master  held  that,  in  case  of  tlie  transportation  of  persbna 
and  baggage  from  one  point  to  anotiier,  over  connecting  lines  of 
railroad,  the  initial  carrier  (in   this  case  the  Wabash 

_,     ,.  '        .  ,    V     1_1        f  ■       ■  ..        .1  NMLIiiLBFOa 

Kailroad)  le  not  liable  tor  an  mjnry  to  the  paBsenger  or  airmaa  -am- 
liis  baggage  Buatained  beyond  its  own  line,  nnleee  a 
special  agreement  is  shown,  by  clear  and  satisfactory  evidence, 
whereby  the  initial  carrier  is  made  responsible  for  what  occars  on 
the  lines  of  connecting  carriers,  and  beyond  its  own  terminus.  The 
master  hold  that  the  proof  in  this  case  did  not  establish  sttch  spe- 
cial agreement  by  clear  and  satisfactory  proof,  and  accordingly  die- 
iiiisB«l  the  claim. 

The  rule  of  law  which  was  applied  to  the  case  ie  nndonbtedly 
correct.  A  common  carrier  is  not  liable  for  losses  enstained  be- 
yond the  terminns  of  its  own  line,  nnless  it  has  assumed  snch  lia- 
bility  by  express  contract,  or  nnless  soiAe  arrangement  in  the  nat- 
ure of  a  partnership  exists  between  it  and  connecting  carriers, 
which   was   not   shown  in   this  case.     Myrick  v.  Michigan  Cent. 


^d  by  Google 


104     CEHTHAL  TRUST   CO.  OF  W.  T.  V.  WABASH,  ETC.,  B.  CO. 

E.,  107  TJ.  S.  102,  E.  Co.  c.  Mannfactnring  Co.,  16  Wall. 
318;  Insurance  Co.  v.  R.  Co.,  104  U.  S.  157;  Elmore  w.Nan 
gatack  R.,  23  Conn.  457;  Ellawortli  v.  Tartt,  26  Ala.  733" 
Knight  V.  Portland,  S.  &  P.  R.  R.,  56  Me.  234;  Militor  v.  New 
York  &  N.  H.  E.,  53  N.  y.  364;  Penneylvania  R.  Co.  v. 
Scliwarzenberger,  45  Pa.  St.  208;  BurrougliB  v.  Norwicli  &  W.  E. 
Co.,  100  Mass.  26. 

The  only  matter  to  be  reviewed,  tlierefore,  ia  whetlier  the  maa* 
ter  correctly  foand  from  t!ie  evidence  that  the  claimant  failed  to 
show  an  express  contract  for  safe  carriage  freni  St.  LoniB  to  Bos- 
ton. There  is  little  ground  to  question  the  master's  finding  on 
that  issue.  The  evidence  shows  that  intervener  inquired  of  the 
carrier's  agent  at  St.  Xouis  the  price  of  through  tickets,  and 
whether  passengers  went  through  by  tliat  route  without  change  of 
?«™.  cars.     Receiving  an  affirmative  answer  as  to  the  last 

question,  and  information  that  the  throngli  fare  was  $24.50,  lie 
bought  two  tickets.  The  tickets  are  what  are  known  as  "coupon 
tickets,"  indicating,  the  I'oute  to  be  travelled  over,  and  were  at- 
tached to  a  contract  containing  numerons  provisions;  the  first  be- 
ing that  the  Wabash  Company  in  selling  the  tickets  only  acted  as 
agent  of  the  connecting  lines,  and  would  not  be  responsiWe  beyond 
ite  own  line.  Claimant  testifies  that  he  did  not  examine  the  tick- 
ets, but  it  nowhere  appears  that  the  carrier's  agent  resorted  to  any 
artifice  to  prevent  him  from  so  doing.  What  occurred  in  the  case 
of  the  purchase  of  these  tickets  is  probably  the  satne  that  occnrs 
in  nearly  every  instance  of  the  purchase  of  tickets  for  a  long  rail- 
road journey,  involving  a  passage  over  several  connecting  i-ailroads. 
■naovaRrtax  *Now,  conceding  that  the  acceptance  of  a  through  fare 
-BnDwoi.  \yj  tijg  initial  carrier  is  some  evidence  of  an  undertak- 
ing on  its  part  to  become  responsible  beyond  the  terminus  of  its 
own  line,  though  by  no  means  conclusive  evidence  on  that  point, 
and  conceding,  further,  that  the  written  and  printed  contract  at- 
tached to  the  coupon  tickets  is  not  to  be  taken  as  the  sole  evidence 
of  the  agreement,  inasmnch  as  claimant  did  not  read  the  contract 
or  have  Lis  attention  expressly  called  to  the  same,  still  the  evidence 
is  insufficient  to  prove  such  special  agreement  as  the  claimant  reliea 
npon  to  extend  tlie  initial  carrier's  common-law  liability,  and  make 
it  responsible  for  losses  beyond  the  terminns  of  its  own  line. 

Althongh  the  written  and  printed  stipulations  on  the  face  of 
the  tickets  are  not  to  be  regarded  as  the  sole  evidence  of 
the  contract,  yet  such  stipulations  may  be  considered,  in  connec- 
tion with  what  transpired  when  the  tickets  were  purehased,  for  the 
purpose,  at  least,  of  determining  what  were  the  carrier's  intentions 
at  the  time,  and  what  liability  it  intended  to  assume.  Referring 
to  the  contract  attached  to  the  tickets  solely  for  that  purpose,  and 
reading  the  same  in  the  light  of  all  that  was  said  and  done  on  that 


^d  by  Google 


CAERIERS — BAGGAGE — SPECIAL  CONTRACT.  105 

occasion,  and  it  is  manifeat  that  the  carrier  did  not  intend  to 
assnme  anj  liabilitv  beyond  its  own  line,  and  never  gave  its  assent 
to  an  agreement  for  safe  carriage  over  the  entire  route.  There 
was  no  meeting  of  minds  on  that  pi-oposition,  and  for  that  reason 
uo  express  agreement  to  that  effect.  In  the  absence  of  sucli  an 
undertaking,  assented  to  by  both  parties  (the  carrier  and  the  pas- 
aengerj,  the  former  is  only  subject  to  its  common-law  obligation  to 
safely  carry  over  its  own  line,  and  safely  deliver  to  the  connecting 
carrier. 

The  master's  report  is  accordingly  confirmed. 

LlabilKy  of  Carrier  Beyond  Its  own  Ltna. — Bee  St.  LoaU  Ins.  Co,  e.  Bt. 
Louis,  etc.,  R.  Co.,  3  Am.  &  Eng.  R.  R.  Cas.  260;  St.  Louis,  etc.,  R  Co.  v. 
Lamed,  6  Am.  &  Eog.  R.  R.  Caa.  486;  Hadd.  v.  V.  B.  &  C.  Ex.  Co.,  6  Am. 
&  Eug.  R.  R.  C&B.  448;  Detroit,  etc.,  R.  Co.  c.  McEenzie,  9  Am.  &  Eng. 
R.  R.  Cm.  IS;  Michigaa  Cent.  R.  Co.  e.  Hyrick,  9  Am.  &  Eng.  R.  R.  Cas. 
25;  Lindleye.  Richmond,  etg.,  R.  Co.,  9  Am.  &  Eng.  K.  R.  Caa.  8t;  Cum- 
mina  t.  Dayton,  etc..  R.  Co.,  9  Am.  &  Eng.  R.  R.  Caa.  86;  Eolght  e.  Pror. 
ideoce,  etc.,  R.Co.,  »  Am.  ft  Eng.  R.  R.  Caa.  SO;  Baltimore  ft  Ohio  R  Co. 
e.  Campbell,  3  Am.  ft  Eng.  R  R  Caa.  240;  Harding  e.  Intematiooal  Nav- 
Co., «  Am.  ft  Sog.  R  R  Caa.  S88;  Tezaa  ft  Pac.  R  Co.  e.  Fort,  9  Am.  ft 
Eng.  R  R.  Cas.  893;  Texas  ft  Pac.  R.  Co.  e.  Ferguson,  9  Am.  ft  Eng.  R.  R. 
Cas.  895;  Louisville  etc.,  R  Co.  v.  Meyer,  27  Am.  ft  Eng.  R  R  Ou.  44; 
IfTabaah,  etc.,  R.  Co.,  o.  Jaggerman,  28  Am.  ft  Eng.  R.  B.  Caa.  680;  Hewitt 
e.  Chicago,  etc.,  R.  Co.  18  Am.  ft  Eng.  R.  R  Cas.  508;  Berg.  v.  Atchison, 
etc,  R  Co.,  10  Am.  A  Eng.  R  R.  Cos.  18;  Harria  «.  Grand  Tmuk  R.  Co., 
36  Am.  ft  Eng.  R  R.  Cas.  328;  Weinburg  «.  Railroad,  18  Am.  ft  Eng.  R  R. 
Cas.  697;  Peretra  d.  Cent.  Pac.  R.  Co.  IB  Am.  ft  Eag.  R  B.  Cas.  505;  East 
Tennessee,  etc.,  R.  Co.  v.  Bromley,  0  Am.  ft  Eng.  R.  R.  Cas.  850 ;  Qatveston, 
H.  ft.  H.  R.  Co.  e.  Allison,  18  Am.  ft  Eng.  R.  R.  Caa.  28;  Deming  o.  Nor- 
folk ft  W.  R  Co.,  16  Am.  ft  Eng.  R.  H.  Cas.  282;  Lotaperch  v.  Cent.  B.  ft 
Bank's  Ck>.,  18  Am.  ft  Eng.  Cas.  400. 


NOBTH    LOHDON  B.    CJo. 

<L.  S.  1»  Q.  B.  JWe.  04.) 

The  pUntifl  wu  a  season-ticket  bolder  on  the  defendants'  line  from  B.  to 
TT.  under  a  special  contract,  by  which  he  undertook  to  abide  by  all  the  rules, 
rq^lations,  and  by-lawa  of  the  defendants.  One  of  sucb  regulations  waa 
that  tbe  defendanta  wonld  not  be  responsible  for  any  paasenger's  luggage 
unlesa  fully  and  properly  addreaaed  with  the  name  and  destination  of  the 
owner.  The  plautiS  baving  with  him  at  B.  a  bag  which  waa  not  so  ad- 
dnssed  nw  it  labelled  for  E.  by  one  of  the  defendiut's  servants;  he  left  tbe 


^d  by  Google 


106  OITTI.EE  V.  HOETH  LONDON  K.  CO. 

tndn  ftt  0.,  an  intermediate  station,  and  proceeded  to  E.  by  a  snbsequeDt 
train;  oa  liis  arriTal  at  E.  his  bag  waa musing.  There  wu  no  eTidence  that 
tlie  t>ag  ever  reached  E,  £M^  that  the  reffnlation  of  the  defeBdanto 
iraa  not  a  juBt  and  I'easonable  condition  within  e.  7  of  the  Railway  and 
Canal  Traffic  Act,  1854  (17  and  18  Vic  c  81),  and  could  not  be  enforced 
against  the  plaintiff: 

Queere,  wnether  the  liability  of  the  defendanta  in  reapect  of  the  portion  of 
the  journey  from  O.  to  E.  was  that  of  common  carriera  or  merely  of  gratni> 
tool  baileea. 

Motion  for  judgment.  At  the  trial  before  the  recorder  of 
London,  in  the  mayor's  court,  the  following  facts  were  proved. 
The  plaintiff,  who  was  a  se a Bon- ticket  holder  on  the  defendants' 
line  of  railway  between  Broad  Street  and  Kew,  came  to  the  former 
station  with  a  bag,  which  was  labeled  in  his  presence  for  Kew  by 
one  of  the  defendants'  servants,  and  was  then  handed  to  a  porter 
and  pnt  on  a  barrow  preparatory  to  being  placed  in  the  train  for 
conveyance  in  the  ordinary  way.  The  plaintiff  went  by  the  train 
as  far  as  Camden  Town,  an  intermediate  station  on  the  defendants* 
line,  where  he  got  ont,  saying  nothing  about  his  bag.  He  pro- 
ceeded to  Kew  by  a  later  train.  On  asking  for  his  bag  at  Kew, 
it  was  fonnd  to  be  missing,  and  plaintiff  was  told  that  nothing  had 
been  put  oat  from  the  train, 

"When  the  plaintiff  originally  applied  to  the  defendants  for  a 
season  ticket,  he  signed  a  special  contract  by  which  he  agreed  to 
abide  by  all  the  rules,  regulations,  and  by-laws  of  defendants, 
one  of  which  was  as  follows:  "  In  order  to  prevent  delay  and  in- 
convenience on  the  redelivery  of  luggage  at  the  end  of  a  journey, 
paesengei'S  are  requested  to  place  on  each  article  their  name  and 
address,  and  notice  is  hereby  given  that  the  company  will  not  be 
reBnonsible  for  any  passenger's  luggage  unless  fully  and  properly 
addressed  with  the  name  and  destination  of  the  owner."  The 
name  and  destination  of  the  plaintiff  were  not  npon  his  bag.  The 
learned  jndge  nonsuited  the  plaintiff,  giving  him  leave  to  move 
to  set  aside  the  nonsuit,  and  it  was  agreed  that  judgment  sLoald 
be  entered  for  the  plaintiff  if  the  nonsuit  was  wrong. 

Guiry  for  the  plaintiff. 

Candy,  Q.  C,  for  the  defendants. 

Hawkins,  J. — I  am  of  opinion  that  the  learned  jndge  should 
have  left  the  question  of  negligence  to  the  jury.  The  first 
question  that  we  have  to  determine  is  whether  the  defendants' 
regnlatioB   was   valid,   and  as    such   capable   of    being    enforced 

against  the  plaintiff;  for  if  it  is  valid  it  i^ords  a  per- 
SSjrarl^       fectly  good  defence  to  the  action.     It  seems  to  me  that 

its  effect  is  to  protect  the  defendants  from  obligations 
of  any  sort  or  kind  in  respect  of  passengeis  luggage  nnless  it  bean 


^d  by  Google 


CAEBIEBS — BAGGAGE — SPECIAL   CONTRACT.  lOT 

the  owner's  name  and  destination ;  it  does  not  except  even  the 
miscondnct  or  felony  of  their  own  Berrants.  I  have  do  doubt  that 
it  IB  unreasonable,  and  that  it  cannot  be  enforced  against  the  plain. 
tiff  by  reason  of  b.  7  of  the  Railway  and  Canal  Traffic  Act,  1854. 

Tlien  comes  the  farther  question  ;  assuminff  this  to  be  an  un- 
reasonable etipnlatioii,  are  tlte  defendants  liable  on  the  facta  of 
the  case?  If  it  is  necessary  for  xxb  to  determine  the  qnestion,  I 
do  not  tliink  that  the  defendants  were  responeible  as  common 
carriers  for  the  loss  of  the  bag  under  the  ciroumBtances  of  the 
case.  They  wonld  no  doubt  have  been  so  responsible  if  the 
plaintiff  had  travelled  the  entire  distance  direct  from  Broad 
Street  to  Kew,  and  the  bag  had  been  lost  doring  the  jonrney ; 
bat  the  plaintiff  here  did  that  which  his  Bcason-ticket  contract 
did  not  entitle  him  to  do  ;  be  got  out  at  Camden  Town,  althongli 
one  of  the  conditions  of  hie  contract  was  that  he  should  only  use 
bis  season  ticket  between  the  termini  for  which  it  was  issued, 
and  that  if  he  got  out  at  any  other  station  lie  should  pay  his  fare. 
The  defendants  were  indulgent,  and  did  not  enforce  their  rights 
in  this  respect,  but  I  hardly  think  they  were  liable  as  insurers  of 
tbe  bag  for  the  latter  portion  of  the  journey  ;  they  were  however 
liable  at  least  as  gratnitous  bailees.  Is  there,  then,  any  evidence 
to  justify  a  finding  that  the  defendants  were  gailty  of  negligence 
or  of  a  want  of  care  as  gratuitous  bailees!  I  tliink  tliere  was. 
Zt  is  true  that  on  the  arrival  of  the  train  at  Eew  there  was  no  one 
there  to  receive  the  bag,  bnt  there  was  no  evidence  what-  Bnumn. 
ever  to  show  that  the  bag  was  ever  landed  there  at  all.  I  think, 
therefore,  that  there  was  evidence  which  ought  to  have  been  left  to 
the  jury,  and  that  jadgment  should  be  entered  for  the  plaintiff. 

A.  L.  Smith,  J. — I  am  of  the  same  opinion.  The  defendants 
set  np  two  defences  ;  tirst,  tliey  say  tliat  the  bag  was  carried  by 
them  under  a  special  contract;  and  further  they  contend  that 
after  Camden  Town  it  was  not  cairled  by  them  as  common  . 
carriers,  but  at  most  as  gratuitous  bailees,  and  that  there  was  no^ 
evidence  of  any  negligence  on  their  part.  Now  on  the  first 
point,  the  condition  is  not  confined  to  misdelivery  or  delay,  or 
even  to  certain  cases  of  negligence  j  had  it  been  so  I  should  not 
have  said  that  it  was  not  jast  or  reasonable.  It  relieves  the 
defendants  of  all  liability  whatever,  even  for  the  fraud,  felony,  and 
■wilful  misconduct  of  their  own  sersantB,  and  I  can  imagine 
nothing  more  unreasonable  than  sncha  condition.  As  to  the 
second  point,  I  do  not  decide  that  the  defendants  were  not  com- 
mon carriers  of  this  bag.  The  case  seems  to  me  very  like  that 
of  a  passenger  who  sees  his  luggage  placed  in  the  van,  and  who,. 
through  some  accident,  is  unable  to  get  into  the  train,  which  goes 
off  with  his  luggage.     It  is  immaterial  to  decide  which  of  tliepe- 


^d  by  Google 


108  HILLIB  V.  CHICAGO,  E.  I.  AND  P.  B.  00. 

views  is  correct,  but  npon  the  special  circumstances  of  this  case  I 
am  willing  to  hold  that  the  defendants  onlj  carried  the  baf^  qb 
gratuitous  bailees  after  passinf^  Camden  Town.  Even  on  that 
asanrnption  I  think  that  a  prima  facie  case  of  negligence  was 
made  out  which  onglit  to  have  been  left  to  the  jnry,  and  that  the 
Donsuit  was  wrong. 
Judgment  for  ue  plaintiff. 


V. 

Chioaqo,  K.  I.  ahb  p.  R  CO. 

(_Adeatut  Cote,  Imea.     ^utmOT,  1887.) 

A.  pusenger  on  a  railway  train  entered  a  car,  baviDg  in  a  pocket  of  his 
overcoat  a  sum  of  moDej,  and  gave  the  overcoat  to  the  porter  without  meo- 
tioning  the  moDejr,  and  the  porter  hung  the  coat  in  the  passenger's  berth. 
.^Id,  that  the  money  wu  in  his  own  custody  and  at  bis  risk ;  and  tbe  fact 
that  soon  afterwards  an  accident  overturned  the  car,  and  on  the  paasenger 
makine  his  way  out.  he  told  the  porter  and  brakemau  of  tbe  railway  com- 
pany that  tbe  money  was  in  the  car,  put  no  liability  for  tbe  money  on  the 
■company  a«  gratuitous  bailee  or  Otherwise,  and  it  was  not  in  such  case  re- 
aponsible  for  the  loss  of  the  money. 

The  company  had,  in  such  case,  a  right  to  notice,  in  the  outset,  of  this 
money,  and  to  be  paid  accordingly  if  responsibility  was  to  arise  in  case  of 
accident;  aod  the  occurrence  of  the  accident  did  not  change  the  rule  as  to 
the  degree  of  care  required,  even  on  the  theory  of  a  gratuitous  bailmant. 

GroBB  negligence  Is  not  to  be  presumed.     Hence  it  was  not  error  to  refuse 
to  charge  the  jury  that  if  they  found  that,  by  reason  of  tbe  accident,  the 
money  passed  into  tbe  possession  and  control  of  the  defendant,  as  detailed 
by  the  evidence,  then  the  burden  of  proof  was  upon  the  defendant  to  show    . 
that  the  failure  to  return  the  money  was  not  by  reaaon  of  its  gross  negli- 

Knce.    If  pluntiS  relied  on  tbe  theory  of  a  gral .      .i 
ve  both  averred  and  proved  grou  negligence. 

Appeal  from  circnit  conrt,  Polk  county. 

Action  to  recover  for  money  alleged  to  have  been  loBt  by  plain- 
tiff through  the  negligence  of  defendant.  Verdict  and  judgment 
were  rendered  for  defendant,  and  plaintiff  appeals. 

Gol^,  Me  Vey  <&  Clark  for  appellant 

Wright,  Oumimns  <&  Wright  for  appellee. 

Adaus,  C.  J. — Plaintiff,  with  his  sister,  was  a  passenger  on  tbe 
night  ti-ain  of  defendant,  March  1,  1881,  from  Des  Moines  to  Keo- 
kiiK,  Iowa.  They  were  in  tlie  sleeping  car,  wliich  was  owned  and 
operated  by  defendant,  and  were  tbe  only  passengers  in  the  car. 


^d  by  Google 


8LEEPING-0AB — BAGGAGE — BAILMENT.  109 

The  plaintiff  testified  that,  when  he  entered  the  car,  he  had  in  his 
overcoat  pocket  $500  in  bills  in  an  envelope.     He  ex-  fAcn. 

pected  to  give  this  money  to  a  brother  to  invest  in  cotton  for  him. 
The  plaintifE  bad  ample  money  elBewliere  abont  his  person  for  all 
travellmg  expenses.  Soon  after  entering  the  car,  he  took  off  his 
overcoat  and  gave  it  to  the  porter,  leaving  the  $500  in  the  pocket, 
as  he  says,  and  the  porter  hung  it  in  plaintiff's  berth.  Soon  after, 
and  when  about  three  miles  from  Prairie  City,  by  some  accident 
the  sleeping  car  and  another  car  were  derailed,  and  the  sleeping  car 
was  thrown  upon  its  side.  It  took  fire,  bnt  the  fire  was  soon  ez- 
tingaished. 

The  plaintiff  testified  that,  after  he  made  his  way  out  of  the  car, 
he  told  the  brakeman  and  the  porter  that  bis  overcoat  with  $600 
in  it  was  in  the  sleeping  car,  and  that  he  tried  to  go  into  the  sleep- 
ing car,  bnt  that  the  porter  wonid  not  permit  him  to  do  so.  Both 
the  porter  and  brakeman  deny  tliat  they  prevented  him  from  go- 
ing into  the  sleeping  car.  When  the  overcoat  was  delivered  to 
him,  DO  money  was  found  in  the  pocket.  There  is  no  evidence 
that  the  plaintiff  intimated  to  any  of  the  defendant's  employees 
that  be  was  carrying  the  money  in  qnestion  nntil  after  the  accident. 
or  that  the  plaintiff^paid  for  the  risk  of  its  carriage,  or  that  any  of 
the  defendant's  employees  had  any  antbority  to  assume  any  respon- 
sibility whatever  with  reference  to  this  money,  either  before  or  af- 
ter the  accident,  or  that  any  of  them  took  the  money,  or  any  of  it. 
The  verdict  of  the  jury  was  for  the  defendant,  and  on  this  appeal 
is  decisive  against  the  plaintiff  aa  to  the  facts  upon  which  tiiere 
wag  conflict  in  the  evidence.  We  consider  the  law  well  settled 
that  the  defendant,  as  a  common  carrier  of  paseengei's,  is  not  liable 
for  this  monev.  The  plaintiff  carried  it  at  his  own  risk,  so  far  as- 
the  acta  of  third  persons,  or  even  ordinary  negligence  on  the  part 
of  the  defendant,  or  of  its  employees,  was  concerned.  National 
Bank  v.  Railroad  Co.,  20  Ohio  St.  269  ;  Weeks  v.  Railroad  Co.,. 
72  N.  Y.  50;  Ailing  v.  Railroad  Co.,  126  Mass.  131;  Michigan 
Cent.  R.  Co.  v.  Carrow,  73  111.  348. 

Up  to  the  time  of  the  accident,  plaintiff  had  the  money  in  his 
own  custody.  Nothing  had  ocenrred  to  change  the  nature  of  tlie 
risk  or  liability.  The  occurrence  of  the  accident,  and  the  alleged 
notice  given  by  plaintiff  to  the  porter  and  brakeman  of 
defendant  that  this  money  was  in  the  car,  put  no  liabil-  ^cSrao^BT  ^ 
ity  on  defendant  that  did  not  esist  before  the  accident ; 
for  there  is  no  evidence  whatever  that  they  had  authority  to  assume 
any  liability  for  this  money.  The  occurrence  of  the  accident  did 
not  extend  the  contract,  because  in  that  event  defendant  would 
have  been  responsible  for  this  money  immediately  on  the  occur- 
rence of  the  accident 

The  plaintiff's  position  is  that,  after  the  accident,  the  defendant 


^d  by  Google 


110  HILLIS  V.  CHICAGO,   B.  I,  AND  P.  H.  00. 

.  t)ecame  a  eratnitoQB  bailee  of  this  money ;  and  while,  in  case  of 

fratnitoas bailment,  it  is  admitted  tliat  the  bailee  is  ordinarily  lia- 
le  for  only  gross  negligence,  yet  it  is  claimed  that  tlie  defendant 
became  such  bailee  by  reason  of  this  accident,  and  hence  by  reason 
of  hie  own  wrong,  and  that,  therefore,  the  defendant  sbonld  be 
held  to  a  liiglier  degree  of  diligence.  The  error  in  all  this  is  that 
defendant  was  entitled  to  be  notified  of  this  money  in  the  ontset, 
and  to  be  paid  accordingly  if  responsibility  was  to  anse  in  case  of 
an  accident.  It  Bhonld  liave  a  right  to  protect  itself 
SSSo^nf™*  against  accidents  in  its  own  way,  and  not  be  snbjected 
to  a  hazard  of  which  it  had  no  knowledge  and  no  reason 
to  anticipate.  At  least,  we  are  jnstified  in  saying  that  the  simple 
•occarrence  of  the  accident  is  not  enough  to  change  the  mte  as  to 
the  degree  of  care  required  if  defendant  is  to  be  considered  a  gra- 
taitouB  bailee  of  this  money. 

In  Lloyd  v.  West  Branch  Bank,  16  Fa.  St  173,  a  package  of 
notes  had  been  left  with  defendant's  casliier  as  a  special  deposit, 
without  permission  of  the  directors  of  defendant  and  withont  com- 

Cnsation.  It  was  held  that  the  law  would  not  imply  a  contract 
tween  the  depositor  and  the  defendant  for  the  safe-keeping  of 
-such  deposit  in  the  absence  of  gross  negligence  or  bad  faith  on  the 
part  of  defendant.  8nch  deposit  was  outside  the  regular  business 
■of  the  defendant. 

The  case  of  Leach  v.  Hale,  31  Iowa,  69,  is  cited  and  relied  upon 
ly  the  plaintifE,  but  it  does  not  seem  to  us  to  be  in  point  The 
transaction  in  that  case  was  within  the  business  of  the  bank.  The 
•case  at  bar  seems  to  fall  more  nearly  within  the  ruling  in  First 
:Nat  Bank  v.  Ocean  Bank,  60  N.  Y.  284. 

The  plaintifE  asked  an  instruction  which  was  intended  to  bear. 
^DpoD  the  question  of  gross  negligence.  The  rnle  of  the  instmo- 
tion  is  that,  in  considering  the  care  and  diligence  required  in  the 
transportation  of  property,  regard  should  be  had  for  the  valne  of 
the  pivsperty,  the  facility  and  temptation  which  there  might  be  for 
stealing  it,  and  the  danger,  in  general,  of  it«  being  lost  The  conrt 
refused  this  Instrnction,  and  the  plaintiff  assigns  the  refusal  as  error. 
It  might  be  conceded  that  the  rule  of  the  instrnction  is  correct ; 
but  we  think  it  was  embraced,  in  eutistance,  in  the  fourth  and  thir- 
teenth instructiotis  given  by  the  conrt. 

The  plaintiff  asked  an  instruction  in  these  words  :  "If  the  jury 
find  that  the  money  of  the  plaintiff  passed  into  the  possession  and 
control  of  the  defendant  by  reason  of  the  accident  as  detailed  in 
,g^^  the  evidence,  then  the  burden  of  proof  will  be  upon  the 

ivw  """"^  defendant  to  sliow  by  a  preponderance  of  the  testimony 
that  tlie  failure  to  return  the  same  was  not  by  reason 
of  its  gross  negligence."     The  court  refused  to  give  this  instrnc- 
Jiion,  and  the  refosal  is  assigned  as  error.     In  oar  opinion,  the 


^d  by  Google 


PASSENGEES^LiSSIFIOATION — EXPULSION.  Ill 

coart  did  not  err.    The  law  would  not,  we  think,  preenme  gross 
negligence ;  and,  if  the  plaintifE  lulled  upon  it  as  a  ground  of  lia- 
bility on  the  part  of  tlie  defendant,  npon  the  theory  that  thei-e  was  ■ 
a  gratnitoue  bailment,  the  plaintiff  should,  we  think,  both  aver  and 
prove  the  gross  negligence. 

A  laixe  nnmber  of  qneetiotiB  have  been  presented,  which  we  do 
not  thins  it  necessary  to  specifically  consider. 

The  court  submitted  the  case  to  tlie  jury  npon  the  tlicory  that 
the  jnrr  might  find  that  there  was  a  gratuitous  bailment,  and 
might  nnd  the  defendant  liable  if  it  was  guilty  of  gross  negligence. 
This  theory,  we  think,  was  quite  as  favorable  to  the  plaintiff  as  tlie 
law  justified,  if  not  more  so.  Upon  this  theory  the  case  appears  to 
bare  been  fairly  submitted,  and  the  jury  found  against  the  plain- 
tiff ;  and  we  thmk  that  that  disposed  of  the  plaintiff's  claim.  Af- 
firmed. 

Liability  of  SiMpIng  Car  Company  for  Bagman,— Pullman  Palace  Car  Co. 
«.  Gardner,  10  Am.  A  Edr.  R.  R.  Cae.  3M;  Woodmll  B.  4:  P.  C.  Co.v. 
KeU,  •Am.dtEng.  RR.CM.  3M. 


OhSBApbaeb,  O.  asd  8.  B.  OOk 


(AdMHM  Ofta,  Ttntmm.    April  Ttrm,  1867.) 

Plaintiff  a  mulatto  woman,  puicbased  a  ticket  on  defendant's  railroad  for 
K  ten-mile  journej.  She  passed  through  the  front  car,  and  attempted  to 
enter  the  rear  car,  which,  by  a  regulation  of  the  compaoy,  was  let  apart  for 
irhito  ladies  and  gentlemen.  Bbe  was  stopped  on  the  platform,  aud  told  to 
lide  in  the  front  car,  which  she  refused  to  do,  and  refuted  to  give  up  her 
ticket  unless  atowed  to  ride  in  the  rear  car.  She  was  ejected  from  the  trsin. 
It  appeared  on  the  trial  that  persons  of  both  sexes  were  allowed  to  ride  on 
the  front  car  without  regard  to  color  or  race,  and  the  two  cars  were  alike  in 
ayeij  respect  as  to  comfort,  convenience,  safetj,  and  equipment.  There  was 
conflicting  evidence  as  to  smoking  going  on  at  the  time  in  the  front  car. 
Meld  that  as  [tlaintiffB  purpose  evidently  was  to  harass  the  defendant  with  a 
view  to  brining  this  action,  and  her  persistence  was  not  in  ffood  faith,  with 
&  view  to  obtain  a  comfortable  seat  for  the  short  ride,  the  Judgment  in  hev 
favor  in  the  court  below  should  be  reversed. 

Kbbob  to  circuit  oourt,  Shelby  county. 
Solmes  OwrwUns  for  plaintiff  in  error. 
Green  <6  Adama  and  T.  ^.  CaatelU  for  defendant  in  error. 


^d  by  Google 


113  MEMPHIS  AND   C.  E.  CO.  V.  BENSOIT. 

TuBHET,  C.  J. — On  May  4,  1884,  defendant  in  error,  a  mnlatto, 
pnrchased  of  plaintiff  in  error  a  ticket  over  its  road  from  Wood- 
stock to  MempliiB,  a  distance  of  ten  miles.  She  passed  tlirongh 
fum.  the  front  car  to  the  platform,  where  elie  was  stopped 

by  the  conductor,  and  told  to  take  a  seat  in  the  front  car.  She  re- 
fnsed  to  give  np  her  ticket  unless  allowed  a  seat  in  the  rear  car. 
The  conductor  told  her  he  would  have  to  pat  her  off.  The  train 
was  stopped  at  about  400  yards,  when  she  was  politely  assisted  from 
the  car  by  a  colored  porter.  She  left  the  train  of  her  own  accord 
because  not  allowed  to  pass  within  the  rear  car.  Persons  of  either 
sex  were  allowed  in  the  front  car,  withont  regard  to  color  or  race. 
She  says  she  saw  one  person  smoking  in  that  car,  and  that  it  was 
filled  with  tobacco  smoke ;  while  another  passenger  says  there  was 
no  smoking,  nor  was  there  any  tobacco  smoke.  There  were  only 
six  passengers  in  the  front  car,  one  of  them  a  woman.  The  rear 
car  was  set  apart  for  wliite  ladies  and  gentlemen.  The  two  coaches 
were  alike  in  every  respect,  as  to  comfort,  convenience,  and  safety, 
— were  famished  and  equipped  alike,  with  like  accommodations. 

We  know  of  no  rule  tliat  requires  railroad  companies  to  yield  to 
the  disposition  of  passengers  to  arbitrarily  detei'mine  as  to  the 
coach  in  whicli  tliev  shall  take  passage.  The  conduct 
of  the  plaintiff  below  was  upon  an  idea  without  the 
sliglitest  reason.  Having  offered,  as  the  statute  pro- 
vides, "  accommodations  equal  in  all  respects  in  comfort  and  con- 
venience to  the  firss^lass  cars  on  the  train,  and  subject  to  the  rules 
governing  other  first-class  cars,"  the  company  had  done  all  that 
could  rightfnlly  be  demanded.  We  think  it  is  evident  the  purpose 
of  the  defendant  in  error  was  to  harass  with  a  view  to  this  suit,  and 
that  her  persistence  was  not  in  good  faith  to  obtain  a  comfortable 
seat  for  the  short  ride. 

Judgment  reversed,  and  judgment  here  for  plaintiff  in  error, 

Bm  CTOSS-referenceB  to  next  oue> 


Memfbis  xsd  0.  R.  Co. 


(Adwmet  Oam,  Tmnaaee.     1867.) 


A.  got  on  a  pusenger  train  at  a  cit;  etation,  and  went  into  the  tadiei'  car, 
where  he  wM  unable  to  find  a  seat.  He  remained  in  thi*  oar  standing,  and 
lefuaed  to  anrrender  hie  ticket  until  be  wu  given  a  seat.  The  condnctor  told 
him  that  there  would  soon  be  seat*  vacant,  or  that  he  could  And  a  Mat  in  tbft 


^dbvGooglc 


TICKETS— BEFUSAI,  TO  DKLIVER— EXPULSION.  113 

geDtlemen's  car,  but  be  refused  to  go  into  ttiHt  car,  on  the  ground  that  tlie 
amokJDg  then  would  make  him  tick.  When  his  ticket  waa  aguu  demanded 
of  bim,  he  refused  to  give  it  up,  and  waa  ejected  from  the  train,  for  which 
he  aued  the  railroad  companj  for  damages.  £«U,  that  he  wm  not  entitled 
to  recoTer. 

In  action  by  a  paasenger  to  recoTer  damaeea  for  being  ejected  from  a  rail- 
road train  for  refnaal  to  give  ap  hia  ticket  when  demanded,  the  best  evidence 
of  bit  right  to  be  on  the  train  la  the  ticket  itaelf,  and  untjl  the  non-produc- 
tion of  the  ticket  it  explained  parol  eridence  of  what  anch  ticket  entitled  him 
to  cannot  be  admitted. 

Appeal  from  the  circnit  court,  Shelby  conatr. 
Po8tcn  <&  Poaton  and  L.  W.  Sumea  for  plaintiff  in  ernw. 
Wright  <6  Poliiea  for  defeudant  in  error. 

LuvTOK,  J.-— This  was  a  stiit  for  damagee  for  an  allwed  nnlaw- 
fnl  ejection  of  tlie  defendant  in  error  from  the  train  oi  the  plain- 
tiff in  error.  There  was  a  judgment  of  $500  in  favor  of  the  de- 
fendant in  error  rendered  by  the  circnit  judge,  who  tried  the  case 
without  a  jnry.  The  railway  company  have  appealed,  and  a  nam- 
ber  of  reasons  are  assigned  for  rererral.  The  defendant  in  error 
went  npon  the  passenger  train  at  Memphis,  Tennessee,  and  went 
into  the  car  set  apart  for  ladies,  and  gentlemen  traveling  with 
ladies.  This  car  at  tlie  time  was  overcrowded,  and  he  was  anable 
to  obtain  a  seat,  and  this  condition  of  things  he  saw  ntnt. 

before  the  train  left  Memphis;  yet  he  made  no  demand  at 
Memphis,  the  terminal  station,  bnt,  preferring  to  take  his  chances 
to  get  a  seat,  he  remained  on  the  car,  standing  until  after  the  train 
had  started  upon  its  trip.  After  the  train  had  gotten  well  ont  of 
Memphis,  the  nsnal  demand  was  made  npon  him  for  his  ticket. 
This  oe  declined  to  surrender,  taking  the  poaitiori  that  he  wonld 
not  surrender  his  ticket  until  he  had  been  furnished  with  a  seat. 
The  condnctor  called  his  attention  to  the  fact  that  there  was  not  a 
vacant  seat  in  the  car  in  which  lie  was,  and  offered  to  get  him  a 
seat  in  the  next  forward  car,  and  further  saying  that  it  would  be 
bnt  a  short  time  before  seats  would  be  vacateci  by  passengers  for 
local  stations,  and  that  he  wonld  then  give  him  a  seat  in  the  ladies' 
car.  Tliis  he  declined,  and  demanded  a  seat  in  the  ladies'  car  be- 
fore sniTendering  his  ticket.  The  demand  of  the  condnctor  for 
his  ticket  was  renewed  in  a  short  time,  with  the  statement  that  he 
must  either  get  off  the  train  or  surrender  his  ticket.  This  demand 
was  again  refused,  and  he  further  declared  that  he  would  not  leave 
the  train.  Upon  the  train  stopping  at  the  next  regular  station,  he 
still  refusing  to  leave  the  train,  he  was  ejected.  He  neither  snr-  ■ 
rendered  his  ticket  to  the  conductor,  or  snowed  that  he  had  snch 
ticket ;  nor  did  he  state  the  point  to  whicli  he  was  destined.  He 
bases  his  refusal  to  go  into  the  forward  car  upon  tlie  ground  that 
SI  A.  &  B.  &  Caa.— S 


^d  by  Google 


114  MEMPHIS  AND  0.  E.  00.  1).  BENSON. 

it  was  a  emoking-car,  and  that  the  foul  air  of  snoli  a  car  was  likely 
to  make  him  ill. 

Tliere  can  be  no  doubt  that  the  contract  of  a  carrier  of  passen- 
gers by  railway  is  one  not  only  to  furnish  the  passenger  with  trans- 
portation, but  with  the  comfort  of  a  seat.  The  contract  is  no  more 
KaoMiTT  TO  performed  by  furnishing  him  with  a  seat,  without  trans- 
'''■•"■""■  portRtion,  than  it  is  when  he  is  offered  transportation 
without  a  seat.  It  is  equally  well  settled  that  the  passenger  need 
not  surrender  his  ticket  until  ho  is  furnished  with  a  seat,  for  the 
ticket  is  the  evidence  of  the  contract  which  entitles  him  to  one. 
But  it  cannot  be  that  one  may  ridofrec  because  not  furnished  with 
a  seat.  If  the  passenger  chooees  to  accept  transportation  without 
a  seat,  he  must  on  demand  par  his  fare.  If  unwilling  to  ride 
without  transportation  is  furniened  him  in  a  seat,  he  must  eet  off 
at  first  opportunity,  and  by  so  doinf^  may  bring  his  action  for 
breach  of  contract,  and  recovei'  as  damages  sucli  sum  aa  will  com- 
pensate him  for  such  breach,  inoluding  such  damages  as  are  the 
natural  and  immediate  results  of  such  breach.  Borer,  R.  B. 
968,  969;  Davis  v.  R  Co.,  63  Mo.  317;  S.  Co.  u.  Leigh,  45 
Ark.  368.  It  results  that  for  tlie  indignity  and  vexation  conse- 
quent upon  tho  ejection  in  this  case  there  can  he  no  recovery. 
This  result  is  made  the  more  certain  by  the  facts  of  tliis  case ;  it 
spearing  that,  at  the  time  this  passenger  entered  the  oar  at  the 
terminal  station,  he  saw  that  this  oar,  assigned  to  ladies,  and  gec- 
tlemen  with  ladies,  was  overcrowded,  and  he  knew  that  be  must 
either  ride  standing,  or  take  a  seat  in  the  car  called  the  smoking- 
car.  He  gave  tho  railway  company  no  opportunity  to  furnish  ad- 
ditional seats  while  at  its  station. 

We  have,  at  this  term,  in  tlie  case  of  Chesapeake,  O.  &  8.  B.  Co. 
V.  Wells,  ante,  111,  held  that  a  railway  company  may  make 
reasonable  regulations  concerning  the  car  in  wliich  a  passenger 
might  be  required  to  ride,  provided  that  equal  accommodationa 
were  furnished  to  all  holding  first-clasB  tickets,  and  that  a  regnla- 
tion  assigning  a  particular  car  to  perepns  of  color,  that  car  being  in 
all  respects  eqQal  in  comfort  to  any  other  in  the  train,  was  reason- 
able. This  rule  has  been  sustained  in  the  courts  of  many  states. 
West  Clieater  R.  Co.  v.  Miles,  55  Pa.  St.  209 ;  Chicago  &  N.  W. 
B.  Co.  V.  Williams,  55  111.  185,  So  we  think  a  regulation  setting 
apart  a  car  for  ladies,  or  gentlemen  accompanied  by  ladies,  a  rea- 
sonable regulation.  A  passenger  may  not  dictate  where  he  will 
sit,  or  in  which  car  he  will  ride.  If  he  is  furnished  accommoda- 
tions equal  in  all  respects  to  those  furnished  other  passengers  on 
the  same  train,  he  cannot  complain  ;  and  this  was  the  substance  of 
onr  decision  in  the  Wells  Case.  The  doctrine  is  equally  applicable 
here.  This  passenger,  when  he  took  passage  at  Memphis,  did  it 
with  knowledge  that  the  ladies'  car  was  ciowded,  and  that  he 


^d  by  Google 


TICKETS — REFUSAL  TO  DELIVEK — EXPULSION.  115 

would  either  have  to  ride  standing  in  tbat  car,  or  go  into  the  car 
assigned  ezclosively  to  gentlemen,  and  in  which  smoking  was  per- 
mitted. The  requirement  that  he  slionid  go  teniporaiily  into  the 
smoking  car,  under  the  circnmstancee,  was  not  unreasonable.  Ho 
ought  not  to  Lave  started  when  he  did,  unless  wilting  to  sabinit  to 
what  he  realized  was  an  inevitable  neceseity,  without  giving  the 
■earner  notice  of  his  demand. 

Bnt  upon  another  gronnd  this  judgment  cannot  be  sustained, 
•even  for  damages  for  breach  of  conti'act.  The  defendant  in  error 
in  his  disposition  states  that  he  had  a  ticket  purchased  at  Austin, 
TTexas,  which  entitled  him  to  paeeage  to  Atlanta,  Georgia,  and  that 
one  of  the  coupons  npon  tliis  ticket  entitled  him  to  passage  over 
the  road  of  plamtiff  in  error  from  Memphis  to  Chattanooga.  This 
ticket  lie  does  not  produce,  nor  does  he  account  for  liis  „^^^ 
failure  to  produce  it  by  proof  of  its  loss,  or  that  he  had  n'SS^lmS 
eohsequently  used  it.  Objection  was  taken  to  this  evi- 
dence, and  the  objection  overrnled,  upon  promise  of  counsel,  at  a 
eobaequent  stage  of  the  trial,  to  account  for  its  nou- prod  notion  bo 
as  to  let  in  secondary  evidence  of  the  fact  of  the  contract  therein 
-contained.  This  was  not  done.  It  is  elementary  law  that  the  con- 
tents of  a  written  or  printed  contract  cannot  be  proven,  without 
the-failnre  to  produce  the  paper  itself  is  acconnted  for.  This  ob- 
jection 18  fatal  to  the  whole  case  of  defendant  in  error,  for  there  is 
DO  l^al  evidence  that  he  had  a  ticket.  This  being  so,  he  was 
Tiglitfully  ejected. 

The  conductor  who  ejected  this  passenger,  while  using  no  un- 
necessary  force,  did  use  nnnecessarily  abnsive  language,  sncb  aa 
was  calculated  to  unnecessarily  insult  and  degrade  the  person 
«jected.  In  exercising  a  legal  right  of  ejection,  railway  compa- 
nice  must  not  do  so  in  an  abusive  way,  Tiiey  are  the  servants  of 
the  public :  and,  while  their  right  to  enforce  reasonable  regulations 
will  be  enforced,  yet  the  regulations  must  not  only  be  reasonable  in 
themselves,  bnt  tlie  manner  and  method  of  enforcing  such  regula- 
tions  must  be  reasonable,  and  free  from  unnecessary  force,  as  welt 
as  free  from  unnecessary  indignity.  The  reasonable  demands  of 
the  defendant  in  error  afford  some  excuse  for  the  temper  shown  by 
the  conductor.  In  view,  however,  of  the  absence  of  any  proof  of 
a  legal  character  that  the  ejected  passenger  had  any  ticket,  and  his 
refusal  to  pay  fare,  and  that,  therefore,  the  relation  of  passenger 
and  carrier  did  not  exist,  we  are  constrained  to  revei'se  the  judg- 
ment of  the  circuit  judge,  and  enter  judgment  here  for  plaintifiE  m 
error,  the  carrier  in  eaai  case  not  being  held  responsible  for  the 
-ejection. 

FoLEBs,  X,  incompetent,  and  did  not  sit. 

-ClauWeation  of  Puungun. — See  Brltton  e.  Atlanta,  etc..  B.  Oo.,  18  An. 


^d  by  Google 


116  ALABAMA  O.  S.  B.  00.  V.  B£DDL£STON. 

4  Eng.  R.  B.  Cm.  891 ;  Brown  e.  M.  4  C.  E.  Co.,  1  Am.  &  Eog.  R  R.  Cat 
947;  Qr»y  e.  Cincinnati,  etc.,  B.  Co.,  6  Am.  &  Eng.  R.  B.  Cbb.  688. 

Expuliionfor  Rafucal  to  Dellvor  TIckat  or  Pay  Fara.— See  O'BrieD  e.  N.  T. 
C.  A:  H.  R.  R.  Co.,  1  Am.  &  Eog.  B.  R.  Cas.  269 ;  Oarrett  r.  Louisville  &  N.  R. 
Co.,  8  Am.  &  Eng.  B.  B.  Caa.  416;  Hall  «.  Hemphia,  etc.,  B.  Co.,  B  Am.  & 
Eog.  B.B.  Cas.  689;  Petrie  i.  Penna.B.  Co..  1  Am.  &  Eng.  B.  B.  Caa.  2SS; 
Laae  n.  East  Tean..  etc.,  B.  Co.,  2  Am.  &,  Eng.  R.  R.  Cas.  S78;  Bland  «.  So. 
Pac.  R.  Co.,  8  Am.  &  Eng.  B.  B.  Caa.,  380;  Ind.  ft  Bt  L.  R  Co.  e.  Kennedy, 

5  Am.  ft  Eng.  R  R  Caa.  467. 


AiABAKA  a  S.  B.  Oa 


{Adwmee  Oatt,  Aiabama.     Jvig  SI,  1B87.) 

Pl^ntifl  purcbaaed  a  ticket  to  B.  from  the  station  agent  of  defendant,  and 
b7  faia  direction  entered  a  departing  train  which  did  not  stop  at  B.,  and 
waa  compelled  to  get  oS  at  a  station  three  milea  from  8.  &ld,  that 
pliuntifl  was  entitled  to  the  actual  damages  sustained  from  the  mistake  of 
the  ucnt. 

Plaintiff  sned  for  damages  for  his  wrongful  and  fordble  ejection  from  k 
^in  OD  which  he  bad  entered  by  misdirection  of  a  station  agent  of  the  de- 
fendant. &M,  that  plaiotifi  could  recoTer  damages  for  the  misdirection^ 
although  the  proof  did  not  austain  the  allegation  offorcible  ejection. 

Appeal  from  circuit  conrt,  Greene  conuty;  S.  H,  SmoTT, 
Jndge. 

Action  for  damagee  by  passenger  agalnet  railroad  companv. 

This  action  was  bronglit  by  J.  L.  Heddleston  against  tne  ap- 
pellant, as  a  common  carrier,  owning  and  operating  a  railroad  which 
ran  between  Epes  Station,  in  Snmter  county,  and  Stewart's  Station, 
in  Hale  county,  and  was  commenced  on  the  first  of  September, 
1885.  The  complaint  contained  only  one  count,  and  claimed 
$3000  as  damages,  on  the  following  allegations ; 

"On  the  ninth  of  April,  1885,  plaintiS  applied  at  Epee  Station 
for  transportation  by  defendant  to  S^ewart's  Station,  and  purchased 
of  said  defendant's  ticket  agent  a  ticket  to  said  latter  station,  pay- 
ing the  i-egular  fare  therefor.  A  few  minutes  thereafter  the 
north-bound  passenger  train  came  along,  and  said  ticket  agent  told 
plaintifi  that  was  his  train ;  and  plaintiS  therenpon  got  aboard  of 
said  train  to  go  to  Stewart's  Station,'  After  said  train  had  left  the 
station,  and  had  gone  several  miles,  the  conductor  in  charge  of  said 
train,  who  was  defendant's  agent,  and  whose  duty  it  was  to  collect 


^d  by  Google 


PASSENGERS — CARRIAGE   PAST  DESTINATION.  117 

the  tickets  and  fares  from  pa Bsengers,  passed  throngh  said  train, 
which  was  stitl  in  motion,  and  called  on  plaintiff  for  his  ticket  or 
fare,  and  plaintiff  thereupon  tendered  to  Iiim  his  said  tictket;  bnt 
eaid  conductor  refneed  to  take  said  ticket,  Baying  that  he  wonld 
pnt  plaintiff  off  at  Akron,  which  W88  thi-ee  miles  before  reaching 
Stewart's  Station,  plaintiff's  destination  as  aforesaid.  When  said 
train  reached  Akron,  said  conductor,  with  a  grossly  careless  diei'e- 
gard  of  plaintiff's  safety  and  welfare,  again  told  plaintiff,  in  an 
angry  and  insnlting  manner,  to  get  off  said  train,  or  he  wonld  use 
£01*06  and  pnt  him  off;  and  plairitiff,  fearing  bodily  liarm,  got  off 
eaid  train  at  Akron,  under  protest,  in  a  boisterous  crowd  of  drunken 
men  and  lewd  women,  at  about  twelve  o'clock  at  night,  during  in- 
clement weather.  Plaintiff  was  unable  to  procure  accommodations 
that  niglit  at  Akron,  and  was  forced  to  walk  to  Stewart's  Station, 
a  distance  of  three  miles,  over  a  creek  and  high  trestle,  the  night 
being  dark,  and  the  weather  tempestuous;  and  was  made  sick,  and 
incapacitated  from  attending  to  his  professional  duties  as  a  physi- 
cian for  two  days,  and  was  otherwiBe  greatly  damaged  and  injured 
in  his  feelings,  body,  mind,  and  health,  by  reason  of  said  wrongful 
ejection  from  said  train.     Wherefore  iie  bringsthis  action." 

Tiie  defendant  pleaded  not  guilty,  and  a  special  plea  which 
ATerred,  in  substance,  that  no  insulting  language  or  force  was  nsed 
or  threatened  to  indnce  plaintiff  to  leave  tlie  train  ;  that  the  con- 
ductor promptly  informed  him,  on  seeing  his  ticket,  that  the  train 
<»>iild  not  stop  at  Stewart's  Station,  being  forbidden  by  the  orders 
of  the  company,  and  offered  to  carry  him  either  to  Eutaw  or 
Akron,  allowing  him  to  retain  his  ticket,  so  that  he  might  reach 
his  destination- by  the  next  train  ;  and  that  plaintiff  elected  to  go 
on  to  Akron,  when,  as  he  knew,  he  might  have  had  good  accom- 
modations  at  Eutaw,  Issue  was  joined  on  both  of  these  pleas,  and 
the  trial  I'esulted  in  a  verdict  and  judgment  for  plaintiff  for  $200. 

On  the  trial,  as  appears  from  the  bill  of  exceptions,  it  was  not 
denied  that  the  plaintiff  got  on  tlie  train  by  the  direction,  throngh 
mistake,  of  the  ticket  agent  at  Epes  Station;  nor  was  it  denied 
that  the  conductor  of  the  train  had  positive  instrnctions  not  to 
«top  at  Stewart's  Station  ;  the  only  matter  of  contest  as  to  which 
there  was  any  conflict  in  the  evidence  relating  to  what  passed 
between  the  plaintiff  and  the  conductor,  and  the  circumstances 
under  which  the  plaintiff  left  the  train.  "  Tiie  evidence  tended  to 
flliow  that,  when  the  conductor  came  around  to  collect  the  fare, 
plaintiff  lianded  him  his  ticket,  but  the  conductor  refused  to  take 
it,  and  said  that  he  was  not  allowed  to  stop  at  Stewart's;  that  his 
orders  were  positive,  but  that  plaintiff  could  stop  at  Boligee,  or 
£utaw,  or  Akron  ;  but  he  did  not  offer  to  carry  plaintiff  back  to 
£pee  Station.  The  evidence  for  the  defendant  tended  to  show 
that  the  conductor  told  plaintiff  be  could  get  good  accommoda- 


^d  by  Google 


118  ALABAMA   Q.  S.  R.  CO.  V.  UEDDLE8T0N. 

tions  at  Eataw,  a  good  night's  rest,  and  bi-eakfaet  in  the  inoniiiijK, 
and  get  to  Stewart's  on  tire  same  ticket,  wliich  he  allowed  plaintiff 
to  retain  without  punching  it,  and  which  plaintiff  produced  on 
the  trial;  that  plaintiff  insisted  on  his  rights,  saying  that  he  had 
bought  hie  ticket,  and  had  been  told  b;  the  agent  to  get  on  this 
train.  There  was  evidence  on  the  part  of  the  plaintiff  that  the 
conductor's  manner  was  rongh,  and  that  he  threateijed,  in  a  ntde 
and  inanlting  manner,  to  have  plaintiff  pnt  off  unlesB  he  got  off  j 
but  thei'e  wag  evidence  for  the  defendant  that  the  conductor  was 
neitlier  rnde  nor  insulting, — no  threatening  in  his  manner;  that 
be  told  plaintiff  calmly  and  politely  that  he  must  get  off,  as  his 
orders  were  positive;  but  he  did  not  take  hold  of  him,  nor  offer  to 
do  so.  As  the  train  approaclied  Akron,  the  evidence  tended  to 
show  that  plaintiff  asked  the  conductor  if  he  intended  to  carry  out 
his  threat  of  putting  him  off  at  Akron,  and  the  conductor  said  he 
did.  PluintiS  then  said  he  had  had  time  to  reflect,  and  did  not 
care  to  have  a  personal  difficnlty,  and  that  he  wouldget  off  the 
tmin,  bat  under  protest.  The  conductor  replied,  'Very  well;' 
and  plaintiff  tfien  got  off  the  train," 

The  defendant  requested  the  following  charges,  in  writing: 
"(1)  If  the  jury  believe  all  the  witnesses  to  be  equally  unim- 
peached  and  credible,  the  plaintiff  is  not  entitled  to  a  verdict;  (2) 
if  the  jury  believe  all  the  witnesses  equally  unimpeached  and 
credible,  the  plaintiff  is  not  entitled  to  recover  any  exemplary  or 
vindictive  damages;  (3)  if  all  the  evidence  is  believed,  the  plaintiff 
■is  not  entitled  to  a  verdict,  but  the  jury  should  hnd  for  the  de- 
fendant." The  court  refused  each  of  these  charges,  and  the  de- 
fendant excepted  to  their  refusal. 

The  defendant  asked,  also,  a  written  charge  in  these  words: 
"(5)  If  the  plaintiff  bonght  the  ticket  produced  on  the  trial  at 
Epes  Station  in  April,  1885,  and  offered  it  to  the  condnctor  on 
the  train  that  night;  and  if  the  conductor  then  and  there  in- 
formed him  that,  under  the  existing  rules  of  the  company  the 
tntin  did  not  stop  at  Stewart's,  and  was  not  allowed  to  stop  there 
unless  specially  ordered  by  the  superintendent;  and  if  such  were 
the  rules  of  the  company  then  in  force;  and  if  plaintiff,  by  con- 
sent of  the  conductor,  was  allowed  to  keep  his  ticket  without  can- 
cellation, and  did  keep  it,  and  still  keeps  it ;  and  if  he  volnntarily 
left  the  train  at  Akron,  and  never  was  ejected  from  the  train, — 
then  on  this  state  of  facts  the  jury  should  find  for  the  defendant." 
The  court  gave  this  clinrge  as  asked,  -but  immediately  added: 
"This  charge  is  applicable  to  vindictive  and  exemplary  damages, 
but  not  to  tiie  actual  damages,  if  the  ticket  agent  sold  plaintiff  the 
ticket,  and  misdirected  him  as  to  the  train,  and  plaintiff  sustained 
actual  damage  from  such  misdirection."  To  this  additional  or 
explanatory  chai^  the  defendant  duly  excepted. 


^d  by  Google 


PASSEIfGEKS — CARRLAQE   PAST  DESTINATION.  119 

The  refneal  of  the  several  charges  aeked,  and  the  ezplanatot;  or 
qnalifyiiie  eliarge  given,  are  assigned  as  error. 
Ims.  S.  Bmlluic  and  S.  F.  Mice  for  appellant. 
Troy^  Tompkina  t£  London  contra. 

Stoks,  C  J. — Plaintiff  Heddleston  porchaeed  from  defendant's 
ticket  agent  at  Eppes  Station  a  ticket  from  that  place  to  Stewart's 
Station  on  the  same  road.  A  train  approaching,  going  in  the  di- 
I'ection  of  Stewart's  Station,  the  ticket  agent  informed  mm. 

plaintiff  that  was  his  train,  and  lie  got  aboard.  He  did  not  die- 
cover  he  was  on  a  train  wliich  did  not  Etop  at  Stewart's  until  it 
it  was  nnder  headway,  and  tlie  mistake  could  not  be  entirely  rem- 
u<lied.  Tiie  testimony  up  to  this  point  is  without  conflict.  Con- 
ceding  that  no  injury,  insnlt,  or  even  discourtesy  was  Ticnr  tamvm 
offei-ed  to  plaintiff,  tlie  mistake  of  the  ticket  agent  E,'§5?'<w"^ 
gave  him  a  right  to  sue  the  defendant,  and  recover  the  "°''- 
actiial  damages  he  had  sustained  from  such  mistake.  Kailroad  Co. 
V.  Huffman,  76  Ala.  492,  which  collects  the  authorities. 

Cliargea  1  and  3  asked  by  defendant  were  rightly  refused  on  the 
principles  stated  above.  For  the  sanie  reason  the  explanatory 
charge  given,  after  giving  chai;ge  5  asked  by  defendant,  was  free 
from  error.  Charge  2  aeked  by  defendant  was  misleading,  and 
properly  refused.    Dorgan  v.  State,  72  Ala.  173. 

It  is  contended  for  appellant  that  the  present  suit  must  fail  be- 
canse  there  was  a  variance  between  the  allegations  and  proof ;  that 
the  complaint  is  for  a  wrongful  and  forcible  ejection  from  the  train, 
white  the  proof  failed  to  establish  this  charge,  and  only  showed 
the  ticket  agent's  misdirection  as  to  the  proper  train  he  slionld  go 
on.  A  f nil  answer  to  this  is  that  the  complaint  sets  forth  and 
counts  on  hoth  causes  of  action.  When  such  is  the  case  it  does 
not  pi'event  .ill  recovery.     The  plaintiff  succeeds  to  the  extent  the 

firoof  sustains  his  allegations,  and  only  fails  to  the  extent  his  proof 
ails.  Suing  for  two  torts,  and  proving  only  one,  affects  only  the 
extent  of  the  recovery.  If  it  be  thonght  the  damages  assessed 
were  disproportionate  to  the  injury,  this  is  a  question  which  conld 
have  been  raised  in  the  court' oelow  on  a  motion  for  a  new  trial, 
bat,  under  onr  system,  cannot  be  raised  in  this  court.     Affirmed. 

Carriad  Part  Daitlnatlon. — See  hogui  n.  Hannibal,  etc.,  R.  Oo.,  IS  Am. 
A  EuK.  R.  R.  Caa.  141;  Trotlinger  c.  Eut  Tenn.,  etc.,  R.  Co.,  18  Am.  & 
Eng.  R.  R.  Cai.  49;  Terre  Haute,  etc.,  R  Co.  o.  Buck.  18  Am.  &  Eng.  R.  R. 
Caa.  a34;  Bt,  Louis,  etc.,  R.  Co.  d;  Manhall,  IB  Am.  &  Eog.  R  R.  Cm.  24B; 
Cincinnati,  etc.,  R  Co.  v.  Eaton,  18  Am.  As  Eng.  R.  R  Crs.  254;  McClelland 
e.  Louisville,  etc.,  R.  Co.,  18  Am.  &  BnR.  R.  R.  Cm.  260;  Lewis  o.  Flint. 
etc.,  R.  Go^  18  Am.  &  Eug.  R  R.  Cfts.  268 ;  L.  8.  &  H.  8.  R.  Co.  c  Pierce, 
8  Am.  &  Eng.  R.  R.  Gas.  S40;  Brown  e.  Chicago,  etc.,  R.  Co..  8  Am.  St 
Bag.  R  R.  Caa.  444;  Chic^o,  etc.,  R.  Co.  t>.  Scurr,  8  Am.  &  Eag.  R.  R. 


^d  by  Google 


130  CAEPENTEE  V.  WASHINGTON  AND  G.  K.  CO. 

Ctu.  S41;  Trigg  e.  St.  Louis,  etc.,  B.  Co.,  S  Am.  &  Bug.  R.  R.  Caa.  S4ff; 
Cleveland,  etc.,  R.  Co.  «.  Newell,  8  Am.  ft  Eag.  R.  R.  Cu.  S74;  Beanditunp 
v.  Int.,  etc,  B.  Co.,  0  Am.  &  Bug.  R.  R  Caa.  807. 


Wabhinotoii  asd  G.  R.  Co. 

(aiiNinat  CbM,  Dittriet  of  Oohimbia.     May  2,  1S87.) 

Where  a  passenger  riding  on  a  street  car,  on  a  transfer  ticket  giren  him  I7 
the  agent  of  the  companj'at  the  place  where  the  tines  intersect  each  other, 
is  ejected  from  the  car  on  the  ground  that  liis  ticket  only  entitled  bim  to  rida 
on  the  other  line,  in  an  action  to  recoTer  damageg  for  the  ejection,  an  inetruo- 
tinn  that,  if  the  agent  of  the  company  had  made  a  mistake  in  giving  him  tha 
wrong  ticket,  he  was  entitled  to  damages,  and  if  the  agent  had  wantonly, 
wilfully,  and  maliciously  given  him  the  wrong  ticket,  and  had  malicionslj 
ejected  him,  he  was  entitled  to  vindictive  damages,  but  that,  if  the  jur^ 
believed  plaintifi  did  uot  get  ofi  of  the  line  of  cars  as  related  b;  him,  bat 
came  from  another  line,  and  received  the  transfer  ticket  without  objection, 
and  undertook  to  ride  on  the  line  that  it  did  not  call  for,  he  was  not  entitled 
to  recover,  will  not  be  held  erroneoua,  after  a  verdict  for  defendant,  wheR 
there  ia  evidence  to  support  auch  verdict. 

In  error  to  the  BHpremo  court  of  tlie  District  of  Colambla. 

C.  C.  Cole  for  plaintiff  in  error. 

W.  D.  Davidge  and  MiocA  ToUem,  ior  defendant  in  error. 

Mn-LBB,  J. — Tliie  is  a  writ  of  error  to  the  Bnpreme  conrt  of  tha 
Bietrict  of  Columbia.  The  defendant  in  error,  the  Wnshington  & 
Gi^orftetown  R.  Co.,  is  a  street-railroad  company  doing  bnsinesa  in 
the  city  of  Wasliington,  its  road  having  two  bi-anches,  crossing  each 
Finn.  other  at  right  angles  at  the  intersection  of  Pennsylvania 

avenue  and  Seventh  street.  Fassengers  who  had  paid  their  fare  ou 
eitlier  branch  of  the  road,  upon  arriving  at  this  crossing,  were 
entitled  to  receive  a  transfer  ticket,  which  permitted  them,  without 
further  paymeot,  to  take  the  other  branch  in  the  continuation  of 
their  journey.  ' 

The  plaintifiE  in  error,  James  N.  Carpenter,  who  wafi  also  tli« 
plaintiff  below,  who  testified  to  taking  hie  passage  on  the  Seventh 
street  branch  of  this  road,  got  off  at  this  crossing,  received  a  ticket 
from  the  agent,  who  was  stationed  at  tliat  point  for  the  pnrpose  of 
delivering  transfer  tickets  to  passengers  who  wished  to  clianee 
cars,  and  took  liia  seat  in  a  oar  on  the  Pennsylvania  aveune  braoSi 


^d  by  Google 


PASSEKGEE — MISTAKE  OF      COMPANY — EXPULSION.     X21 

going  east  toward  tbe  capitol.  When  the  conductor  of  the  car 
came  aroaud  to  collect  tickets,  it  was  found  that  Carpenter  had  a 
transfer  ticket  which  was  intended  for  use  on  the  Seventh  street 
branch,  and  not  on  Pennsylvania  avenue.  The  conductor  refused 
to  accept  tliis  ticket,  and  demanded  of  Carpenter  tJie  usual  fare 
charged  for  riding  on  that  road.  After  some  alteication,  Carpenter 
peremptorily  refnsing  to  pay  the  fare  demanded,  or  get  off  when 
requested  so  to  do,  the  car  was  stopped,  and  the  conductor  and 
driver  put  him  oS  forcibly.  He  then  brought  suit  against  the 
company.  Upon  a  trial  before  a  jury,  a  verdict  was  rendered  for 
the  defendant,  and  tbe  judgment  on  this  verdict,  on  appeal  to  the 
snpreme  court  of  the  district  in  bank,  was  affirmed. 

The  entire  testimony  is  embodied  in  a  bill  of  exceptions,  and  no 
qnestion  arises  on  the  admission  or  rejection  of  evidence,  nor  ie 
tliere  much  contradiction  in  it,  except  that  tliere  may  be  some  little 
difference  between  tbe  statement  of  the  plaintiff  as  to  the  degree 
of  force  used  to  put  him  off  the  car  and  that  of  tbe  conductor  and 
driver  on  the  same  subject.  There  were,  however,  some  excep- 
tions taken  to  the  charge  of  the  court,  as  well  as  to  the  refusal  to 
give  instructions  prayed  for  by  plaintiff.  We  think,  however,  that 
the  charge  given  by  the  court  suaaponle,  when  taken  in  connec- 
tion with  the  vei-dict  of  the  jury,  contains  all  that  need  be  consid- 
ered. That  charge  is  embodied  in  tbe  fiftii  bill  of  exceptions,  and 
is  as  follows  :  "  And  thereupon  the  court  instructed  tbe  jury  that 
if  they  believed  from  the  evidence  that  the  agents  of  the  defendant 
had  made  a  mistake  in  giving  to  the  plaintiff  a  transfer  ticket,  and 
instead  of  giving  him  a  Fennsylvania^venne  transfer  had  given 
him  a  Seventh-street  transfer,  that  the  plaintiff  was  entitled  to  re- 
cover I  and  that  in  aaseseing  the  damages  the  plaintiff  was  entitled 
to  have  reasonable  damages  compensatory  for  the  treatment  which 
he  had  received,  and  that  the  defendant  company  was  bound  to  see 
to  it  that  the  plaintiff  was  provided  with  a  proper  transfer,  and  that 
if  the  mistake  had  been  made  the  responsioility  therefor  rested 
npon  the  company,  and  not  npon  the  plaintiff.  And  the  conrt 
further  instructed  the  jury  that  if,  upon  the  other  hand,  they 
believed  that  the  conduct  of  the  agents  of  the  company  was  wan- 
ton and  malicious,  and  that  tliey  had  purposely  given  him  tlie 
wrong  transfer,  and  that  they  had  maliciously  and  wantonly 
ejected  him  from  the  car  because  of  personal  dislike  or  animosity, 
that  then  tha  plaintiff  was  entitled  to  recover,  and  in  assessing 
damages,  in  that  view  of  the  case,  the  plaintiff  was  entitled  to 
recover  not  only  compensatory,  but  vindictive,  damages,  and  to 
this  latter  branch  of  the  instruction  the  defendant,  by  its 
counsel,  tlien  and  there  objected,  and  tbe  objection  was  overruled, 
and  an  exception  was  duly  noted.  The  conrt  thereupon  furtJier 
instructed  the  jury  that  if  the  jury  were  satisfied  from  the  evi- 


^dbvGooglc 


132     OABPENTEE  V.  WASHINGTON   AND   QEOBGETOWN   R.  CO.. 

dence  that  tlie  plaintifiE  did  not  get  ofi  from  tlie  Seveiitli-stieet  oar 
as  related  by  linn,  but  that  lie  came  from  tlie  west-bound  arenae- 
car,  with  the  passengers  from  that  car,  and  presented  himself,  with 
those  passengers,  to  tiie  transfer  agent  of  the  defendant,  and  that 
the  plaintiff  received  the  Seventh-street  transfer  witbont  objection 
or  remark,  and  undertook  to  ride  npon  it  on  a  PennBylvania- 
avenne  car,  that  the  defendant  was  entitled  to  a  verdict." 

This  whole  charge,  it  seems  to  ns,  was  eminently  favorable  to- 
the  plaintiff.  The  fii^t  point  made  in  it  was  that,  if  the  jury 
beUeved  fi-om  the  evidence  that  the  agent  of  the  defendant  had 
made  a  mistake  in  giving  to  the  plaintiff  a  Seventh -street  instead 
of  a  Feunsylvania-a venue  transfer  ticket,  that  then  the  plaintiff 
was  entitled  to  recover.  It  is  obvious  from  the  verdict  of  the 
jury,  which  was  against  the  plaintiff,  that  they  did  not  believe  that 
the  agents  of  the  defendant  company  at  the  crossing  were  respon- 
sible for  the  mistake  that  bad  been  made  there ;  because  in  the 
flame  connection  the  court  instructed  the  jnry  that  if  they  were 
satistied  from  the  evidence  that  the  plaintiff  did  not  get  off  from 
the  Seventh-street  car  as  related  by  him,  but  that  he  came  from 
the  weet-boHnd  avenue  car,  with  the  passengers  from  that  car,  and 
presented  himself,  with  those  passengers,  to  the  transfer  agent  of 
the  defendant,  and  that  the  plaintiff  received  the  Seventh-street 
transfer  without  objection  or  remark,  and  undertook  to  ride  upon 
it  on  a  Pennsylvania-avenne  car,  that  the  defendant  was  entitled 
to  a  verdict. 

Taking  these  two  charges  together,  in  connection  with  the  testi- 
mony, it  is  evident  that  the  jury  founded  their  verdict  upon  the' 
hypothesis  contained  in  the  latter,  namely,  that  either  he  did  not 
get  off  from  the  Seventh  street  car,  bnt  came  from  the  west-bound' 
avenue  car,  or  that  he  came  with  tlie  passengers  fi-om  that  car,  and 
presented  himself  with  them  to  the  agent  of  the  defendant  in  a 
way  to  lead  him  to  believe  tliat  he  came  fr^m  the  avenue  car,  and 
FucLus  desired  to  proceed  on  the   Seventh-street   car,   wliich 

wira^ii«nrM  was  confirmed  by  liis  taking,  without  objection  or  re- 
mark, the  Seventh-street  cai'  transfer  ticket.  The 
testimony  also  sliowed  that  Carpenter  had  traveled  a  great  deal  on 
the  cars  of  the  defendant  corporation,  was  familiar  with  the  manner 
of  transferring  passengers,  and  must  have  known  the  character  of 
the  ticket  whicli  was  handed  to  him  if  he  had  paid  any  Bttention< 
to  it  whatever. 

The  remaining  portion  of  the  charge  was  also  favorable  to  the 
plaintiff;  that  is,  tliat  if  the  jury  believed  that  the  conduct  of  the 
agents  of  the  company  was  wanton  and  malicious,  and  that  they 
had  pnrposely  given  him  the  wrong  transfer,  and  that  they  had 
wantonly  and  maliciously  ejected  him  from  the  car,  then  the  plain- 
tiff was  entitled  to  recover,  and  in  assessing  damages  he  was  en- 
titled not  only  to  compensatory,  but  to  vindictive  d 


^d  by  Google 


TICKETS — FREE  PASS — EXPULSION.  123^ 

Taking  the  teetimony,  which  ie  all  eet  forth  iq  the  record,  and 
ia  but  little  oontroverted,  together  with  the  charge  of  the  judee, 
we  think  it  perfectlj  clear  that  the  jury  found  a  verdict  for  tii» 
defendant  on  the  gronnd  that  the  plaintiff  himself  was  main);  in 
fault  in  regard  to  the  mistake  in  ihe  transfer  ticket,  and  that  no 
onneceesary  force  or  violence  was  aSed  in  ejecting  liim  fi-om  th» 
car.  Thie  renders  a  furtlier  consideration  of  the  case  unnecessary^ 
and  the  jndgment  of  the  Bupreme  court  of  the  District  of  Colnm< 
hi  a  is  amnned. 

Trantfer  Tlohett. — Bee  City  &  Bubarban  R.  Co.  «.  Brants,  18  Am.  ft  Edk. 
R.  R.  Cae.  324;  Carpenter  t.  Wuhingloii,  etc.,  R  Co.,  16  Am.  &  Eag.  B. 
RCu.  870;  Bradahftw  •■South  Boetona.  Co.,  It  Am.  ftBng.  B,B.Cu.  886, 


UnrsBAPOLiB,  L.  Aim  H.  B.  Oo. 

(Adtana  Gate,  Minwiota.    June  3,  1887.) 

O.  and  wife  conveyed  to  defend&nt  certain  land  for  the  purposes  «f  it» 
nilvaj,  and  in  conaideration  of  the  convejance  defendant  agreed  to  "  carry  " 
Bald  Q.  and  wife,  and  any  of  their  children,  "  free  of  charge  "  in  the  passen- 

Ecara  run  upon  its  road.  PliuntiS  is  one  of  the  children  mentioned.  Meld, 
t  the  effect  of  defendant's  sKreement  it  to  entitle  the  plaintiff  to  be  car- 
ried free  of  charge.  The  fact  that  his  father  purchased  and  paid  for  this 
right  of  free  carnage  is  not  important.  The  platntiff's  right  ia  as  complete 
•8  if  be  had  purchased  and  paid  for  it  himself,  and  its  infringement,  whether 
tortious  or  otherwise,  ia  a  wrung  to  him  for  which  he  has  hia  action.  As  a 
reasonable  regulation  of  its  business  for  the  purpose  of  preventing  imposition, 
the  defendant  might  very  properly  hare  prorided  plaintiff  with  a  pass,  and 
required  him  to  exhibit  it  to  conductors.  But  the  plaintiff  was  under  no  ob- 
ligation to  apply  for  one;  and,  if  none  were  furnished  him,  he  had  the  right 
to  be  carried  without  one.  II  defendant,  as  appears  in  this  case,  made  it  a 
role  to  iaane  no  passes,  then  it  was  ita  duty  to  inform  the  conductors  of  plaln- 
tUTs  rights,  and  instruct  them  to  allow  them. 

Appeal  from  district  conrt.  Hennepin  county. 
WiUon  <&  Lamreavx  and   ff.  8.  Grimet  for  Grimes,  appellant. 
Gross,  HicJa  db  Garleton  for  Minneapolis,  L.  &  M.  K.  Co.,  re- 
spondent. 

Bebbt,  J, — J.  T.  Grimes  and  wife  conveyed  to  defendant  cer- 
tain land  for  the  pnrposee  of  its  railway,  and,  in  consideration  of 
the  conveyance,  defendant  agreed  "  to  carry  "  said  Grimes'and  wife. 


^dbyGoOglc 


134  OBIMES   V.  MINNEAPOLIS,  L.  AND  U.  B.  00. 

and  any  of  their  childi-en,  "  free  of  charge",  in  the  pasEenger  care 
run  upon  its  road.  Plaintiff  is  one  of  the  children  mentioned. 
riCTt.  The  plain  effect  of  defendant's  agreement  ib  to  entitle 

plaintiff  to  be  "carried  free  of  charge."  The  fact  that  hia  father 
liad  purchased  and  paid  for  this  right  of  free  carriage  ie  of  no  im- 
portance. The  plaintiff's  right  is  ae  complete  as  if  he  had  pnrciiased 
aud  paid  for  it  himself ;  and,  as  a  logical  consequence,  its  infringe- 
ment, whether  tortioos  or  otherwise,  is  a  wrong  to  him  for  wliicli 
he  haa  his  action. 

The  contract  was  not  that  plaintiff  should  be  furnished  with  a 
pass  upon  application,  but  that  he  should  be  "carried  free  of 
■charge."  As  a  reasonable  regulation  of  its  business  for  the  purpose 
of  preventing  imposition,  the  defendant  might  very  properly  have 
provided  plaintiff  witli  a  pass,  and  required  him  to  exhibit  it  to 
conductors.  But  plaintiff  was  under  no  obligation  to  apply  for 
one;  and,  if  none  was  fnrnislied  him,  he  had  the  right 
nn  PUB,  us-  to  bc  Carried  without  one.  If  the  defendant,  as  ap- 
pears in  this  case,  made  it  a  rule  to  issue  no  passes, 
then  it  was  its  duty  to  inform  the  conductors  of  plaintiffs  rights, 
and  instruct  them  to  allow  them.  On  the  contrary,  the  facts  Siow 
that  defendants  not  only  declined  to  issue  any  passes,  but  that  it 
instructed  its  conductors  to  pass  no  one,  and  to  collect  fare  from 
tlie  plaintiff.  The  plaintiff,  being  on  the  defendant's- car  in  the 
lawful  exercise  of  his  right  of  free  carriage,  was  ejected  because  ho 
refused  to  pay  fare.  Tiie  ejection  was  wrongful ;  aud,  as  it  was 
forcible,  it  was  not  only  in  violation  of  his  contract  right  of  free 
carriage,  but  was  tortious,  so  as  to  render  the  defendant  liable  to 
damages.  The  evidence  shows  that  the  conductor  by  whom  the 
ejection  was  accomplished,  was  peraonally  acquainted  with  plaintiff, 
was  informed  of  the  ground  upon  which  he  claimed  to  ride  free, 
and  was  acting  under  express  mstructions  not  to  permit  him  to  do 
80.  Hence,  even  if  we  had  any  doubt  of  the  liability  of  the  com- 
pany upon  the  broad  grounds  before  indicated  (as  we  liave  not), 
the  case  would  not  fail  within  the  adjudications  which  excuse  a 
condnctor  for  ejecting  a  passenger  of  whose  right  of  passage  he  is 
ignorant,  or  of  which  he  has  no  reasonably  adequate  means  of  in- 
formation. 

Oi-der  appealed  from  reversed,  and  new  trial  awarded. 

FrM  PasMt— Bnilale.  etc,  B.  Go. «.  O'Hara,  9  Am.  &  Eng.  R  R  Ou.  817. 


^d  by  Google 


T10KXI&— 6iaNATn££  BY  PASSENOEK— EXPULSION.    126 


Baltihobb  xm>  O.  B.  Oo. 

(AthanM  Otue,  Ohio.     June  28,  18S7). 

ATailnwdoompanjsold  and  delivered  a  thousand- mile  ticket  tot  purchas- 
er, who  pud  in  money  the  uanal  rate  to  the  class  of  travellerfl  to  which  ha 
belonged,  and  who  seenred  it  ia  ieaorance  of  the  foUowing  directiona  printed 
thereon.  "  Conductors  will  not  noaor  this  ticket  unless  properl;  stamped 
and  signed  by  the  purchaser,  and  will  strictly  enforce  the  above  conditions." 
Instructions  of  the  company  to  its  ticket  agents,  aod  the  uniform  cuatom 
regulating  the  sale  of  such  tickets,  required  that  the  purchaser  sign  certain 
conditions  printed  thereon  before  delivery  to  them.  The  ticket  in  question 
was  deliTei«d  to  the  purchaser,  and  several  times  honored  b;  the  company'^ 
condnctoia,  without  requiring  him  to  sign  the  conditions.  Seld,  the  0001- 
pany  thereby  waived  such  requirement,  and  its  conductor  was  not  justifled  in 
ejecting  the  purchaser  from  his  car  by  reason  of  bis  refusal  to  sign  the  ticket, 
and  to  pay  the  usual  fare  in  money  for  his  proposed  passage, 

Ebrdb  to  circuit  court,  £noz  connty. 

Eent,  the  plaintiff  in  error,  purcliased  of  the  ticket  agent  of  the 
Baltimore  &  Ohio  R.  Co.  what  is  called  a  "  Commercial  Traveler's 
Mileage  Ticket."  This  ticket  expressly  showed  ilpon  its  face  that 
D.T.Kent  had  the  right  to  travel  1000  miles  on  the  Baltimore  & 
Ohio  B.,  upon  the  conditions  named  in  the  contract  attached 
attd  made  a  part  thereof.  The  contract  which  was  referred  to  con- 
tained six  different  conditions  which  the  pnrcliaser  was  required  to 
agree  to  to  entitle  him  to  ride  upon  the  ticket.  At  the  end  of  these 
conditions  was  a  place  left  for  his  signature,  and  immediately  nnder 
the  place  for  the  signature  was  this  direction  ;  "  Conductors  will 
not  honor  this  ticket  unless  properly  stamped  and  signed  by 
the  purchaser,  and  will  strictly  enforce  the  above  conditions. '  Kent 
purchased  this  ticket  without  signing  it,  and  afterward  presented 
it  to  Conductor  Blair,  who  refused  to  honor  it  unless  Kent  would 
sign  the  contract  to  which  reference  has  been  made.  This  he  re- 
fused to  do  and  was  ejected  from  the  train.  He  again  presented 
the  ticket  upon  a  subsequent  occasion,  and  again  refused  to  sign  it, 
and  was  again  ejected  from  the  train,  the  conductor  taking  up  and 
retaining  nis  ticket.  For  being  put  off  the  train  upon  these  two 
occasions  this  suit  was  brought. 

There  were  no  objections  ou  the  part  of  the  plaintiff  to  any  part 


^d  by  Google 


.  136  KBHT  V.  BALTIMORE  AND  O.  B.  OO. 

of  the  contract  wliicit  he  was  i-equiced  to  BJgn,  except  that  con- 
tained in  tlie  sixth  claiiae,  which  i-eada  as  follows :  "(6)  That  in 
consideration  of  tlie  reduced  rate  at  wliich  this  ticket  is  sold,  and 
the  privilege  of  asing  it  on  all  regular  paseenger  and  such  freight 
trains  as  are  advertised  to  carry  passengers,  the  purcliaser  assuinefl 
all  risk  of  accidents,  and  expresslj  agrees  that  the  company  shall 
not  be  liable  nnder  any  circnmBtanceE,whether  of  negligence  or  fraud 
■on  the  part  of  its  agents  or  otherwise,  for  any  personal  injury,  or 
for  any  loss  of  or  injury  to  his  or  her  property  or  baggage,  while 
using  the  ticket,  and  agrees  that  he  or  she  will  not  consider  the 
'Company  as  common  carriers,  or  liable  to  him  or  her  assuch."  The 
plaintiffs  evidence  tended  to  show  tliat  he  had  never  seen  one  of 
those  tickets,  and  had  no  knowledge  of  the  conditions ;  that  the 
agent  did  not  ask  him  to  sign  the  contract,  nor  did  he  call  his  at- 
tention  to  it,  nor  did  he  learn  that  the  ticket  contained  such  con- 
•dttions  until  some  time  afterward.  When  he  called  for  the  ticket 
the  agent  informed  him  that  the  price  was  |S5,  but,  upon  learning 
that  plaintiff  was  travelling  for  Collier's  publisliing  house,  the 
Agent  told  him  that  he  was  entitled  to  the  ticket  at  shippers*  ratee, 
:$20.  Nothing  further  was  said  of  the  conditiona  or  considerattoo 
Kipon  which  the  ticket  was  sold. 

The  plaintiff  used  the  ticket  on  several  occasions,  witbont  any 
•objection  being  made  to  it  because  of  the  conditions  not  being 
«igned.  The  conductor  to  whom  it  was  first  presented  honored  t)ie 
ticket,  entered  the  date  when  pi-esented,  and  detaehed  the  leaf  con- 
taining the  instructions,  and  forwarded  it,  tt^ther  with  the  coupons 
■detached,  to  the  proper  officer  at  Baltimore.  After  the  ticket  had 
thus  been  formally  honored,  and  after  it  had  been  used  on  several 
■occasions,  the  plaintiff  presented  it  in  payment  of  his  fare  over  the 
£traitsville  division  from  Newark  to  Junction  City.  The  con- 
•ductor  refused  to  accept  the  ticket,  for  the  reason  that  plaintiff  had 
not  signed  the  conditions.  The  plaintiff  then  told  the  conductor 
that  he  had  purchased  the  ticket  without  any  knowledge  of  the 
4!oaditions,  and  without  being  required  to  sign  them  ;  that  it  had 
been  honored  on  several  occasions ;  and  that  Tie  was  not  willing  to 
Agree,  especially  to  the  sixth  condition,  releasing  the  company  from 
all  liability  from  fraud  or  negligence  of  its  agents;  and  insisted  tliat 
the  conductor  should  accept  the  ticket  for  payment  of  his  fare. 
This  the  conductor  still  refused  to  do,  and  threatened  to  eject  the 
plaintiff  nnlees  he  woald  sign  the  conditions  or  pay  liis  fare  in 
money.  The  plaintiff  refused  to  do  either,  and  was  ejected  from 
the  train  as  before  stated.  The  instructions  to  the  ticket  agents, 
■and  the  theretofore  invariable  custom,  required  that  the  purchasers 
of  such  tickets  sign  the  conditions  before  the  delivery  to  them  of 
the  tickets. 

The  suit  was  tried  in  the  court  of  common  pleas,  and  a  verdict 


^d  by  Google 


TICKETS — SIGNATUKE  BY   PASSENGER — EXPULSION.      137 

retnrned  in  favor  of  Kent,  tlie  plaintiff.  A  bill  of  exceptions  was 
taken,  setting  ont  all  of  the  testimony,  and  sevenil  epecitc  charges 
which  were  asked  by  the  defendant,  and  also  the  charge  of  the 
conrt  to  the  jury.  Tlie  cliarges  as  requested  by  the  defendant 
were  not  given.  The  judgment  of  the  court  of  common  pleas  was 
reversed  by  the  circnit  court,  for  the  reason  that  it  was  found  tliat 
the  common  pleas  erred  in  refusing  to  instruct  the  jury  as  prayed 
for  in  the  first  and  second  cliargea  requested  by  pluintifi  in  error. 
Tlie  single  question  pi-esented  is  whether  the  circuit  cpurt  erred  in 
reversing  thejndgmcnt  of  the  common  pleas  court  npon  the  grounds 
fltated  in  this  record. 

The  reqnesta  so  refused  are  as  follows :  "  (1)  The  plaintiff  sues 
upon  a  written  and  printed  contract,  Iteing  the  ticket  in  evidence 
and  called  a  '  One-Thousand  Mile  Ticket,'  which  was  issued  by  de- 
fendant aud  delivered  to  the  plaintiff,  by  the  terms  of  which  the 
defendant  agreed  to  allow  the  plaintiff  to  ride  upon  its  cars  1000 
miles  on  the  roads  named  in  the  ticket,  upon  certain  conditions, 
one  of  which  was  that  be  sign  tbe  contract  liimBelf  at  the  point  de- 
signated in  the  ticket.  This  was  not  a  completed  contract  until  it 
was  BO  signed  by  tbe  plaintiff,  and  be  had  no  right  to  ride  on  de- 
fendant's train  until  he  did  so  sign  it ;  and  if  He  failed  so  to  do, 
and  when  requested  by  tbe  conductor  so  to  do,  and  bis 
refusal  to  pay  fare,  and  he  was  afterward  ejected  from  tbe 
train  by  the  eondnetor  for  the  reasons  aforesaid,  without  using 
more  force  than  was  necessary  to  so  eject  bim,  he  cannot  recover 
in  this  case.  (2)  T)ie  ticket  snows  upon  its  face  that  it  was  the 
duty  of  the  conductor  not  to  lionor  the  ticket  until  signed  by  the 
plaintiff;  and  tbe  fact  that  one  or  more  condnctors  of  defendant 
failed  io  their  duty  in  this  regard  will  not  amount  to  a  waiver  of 
the  terms  upon  which  the  plaintiff  was  entitled  to  ride  or  a  change 
of  the  contract,  unless  the  plaintiff  shows  that  the  condnctors  who 
allowed  plaintiff  to  ride  upon  defendant's  train  without  so  signing 
said  conditions  had  anthority  to  waive  tbe  conditions  contained  in 
the  ticket." 

Ontchjield  &  Orakam  for  plaintiff  in  error. 

J.  H.  CoUina  for  defendant  in  error. 

OwKN,  0.  J. — ^The  instructions  requested  and  refused  ignored  the 
proof  which  tended  to  show  that  Sent  received  the  ticket  from  the 
company's  t^nt  without  actual  knowledge  of  tbe  conditions  and 
directions  thereon  written.  They  also  presupposed  that,  by  receiv- 
ing tbe  ticket,  Kent  acquiesced  in  all  terms  and  conditions,  in  spite 
of  the  fact  (wbicti  the  evidence  tended  to  prove)  that  he  may  have 
been  wholly  ignorant  of  them. 

It  is  weft  settled  that  the  purchaser  of  a  railroad  ticket  does 
not,  by  its  mere  acceptance,  acquiesce  in,  and  bind  himself  to. 


^d  by  Google 


138  KENT  V.  BALTIHOBE  AND   O.  B.  00. 

all  the  terms  and  conditions  printed  thereon,  in  the  abeeiice  of 
actual  knowledge  of  them.  R  Co.  v.  Campbell.  36 
^S^*"  Ohio  St.  647 ;  Davidson  «.  Graham,  3  Ohio  St.  135; 
jsaotB  on.  j^jigg  w.Toolieefl,  10  Ohio,  145 ;  Baweon  v.  Peiinevlvania 
R.  Co.,  48  N.Y.  212 ;  2  Whart.  Ev.  §  1243 ;  Brown  v.  Eastern  B.  Co., 
11  Ciieh.  97 ;  Malone  v.  Boston  R.  Co.,  12  Gray,  388 ;  Canaden  & 
A.  R.  Co.  V.  Baldaaf,  16  Pa.  St.  67 ;  Wade,  Notice,  §§  643,  652, 
554,  655  ;  Lawson,  Carr.  §§  106, 107 ;  BlosBom  v.  Dodd,  43  N.  T. 
264 ;  Qiiimby  v.  Tanderbilt,  17  N.  Y.  306. 

There  ia  nothing  in  the  circnmstance  tliat  the  ticket,  in  the  case 
at  bar,  was  sold  at  a  rate  reduced  from  the  regnlnr  fare,  to  take  it 
OQt  of  the  mle.  The  rate  was  the  usnal  and  established  one  allowed 
to  a  numerous  class  of  patrons,  comprising  commercial  travellers 
whose  principals  were  shippers  over  the  company's  road.  The  con- 
tract between  Kent  and  tlie  company  was  made  when  he  bought 
his  ticket,  received  it,  and  paid  for  it.  Rawson  u.  Pennsylvania  B. 
Co.,  supra.  Neither  party  conld,  after  that,  change  its  terms,  or 
impose  new  conditions  upon  its  enforcement,  withont  the  consent 
of  the  other.  According  to  the  company's  instructions  to  agents, 
and  by  the  nniform  custom  regulating  the  sale  of  such  tickets,  they 
were  required  to  be  signed  before  their  delivery  to  the  purchasers. 
The  company  saw  fit,  in  the  case  at  bar,  to  dispense  with  this  re- 
quirement. It  received  the  plaintiff's  money;  delivered  him  the 
ticket,  in  bis  ignorance  of  request  that  he  sign  it ;  honored  it  for 
several  trips  without  first  requiring  him  to  sign  its  conditions.  It 
thereby  waived  this  requirement,  and  its  conductor  was 
di^k'i^'  not  Jnstified,  while  it  still  remained  the  plaintiff's  money, 
in  ejecting  him  from  its  cars^  by  reason  of  hie  failure 
to  sign  the  ticket,  which  had  already  gone  into  full  effect  between 
the  parties,  and  his  failure  to  pay  the  usual  fare  in  money  for  a 
passage  which  was  already  paid  for. 

The  conclusion  we  have  reached  relieves  ns  from  a  consideration 
of  the  question  arising  upon  the  claim  of  counsel  that  the  sixth 
condition  of  this  ticket  was  against  public  policy  and  would  have 
been  void  if  signed. 

The  trial  court  was  right  in  ref  osing  the  instructions  requested. 
The  judgment  of  the  circnit  court  is  reversed,  and  that  of  the 
conrt  of  common  pleas  is  affirmed. 

SlcnlngbyPurehuar  of  Ticket— See  Qrogoiv*.  B.&  H.  R.Co.,  1  Am.  ± 
Bug.  R.  R.  Oa<.  aTl. 


^d  by  Google 


TICKETS— TIME  LIMITATIOM — COHTRAOT. 


LODIBTHJ-E  AHD   NaSHVILLB  R.  CVk 

(^Adtmiot  Cote,  Louitiana.    Jtmvary  9,  1888.) 

A  railway  compBnj  sold  &  return  ticket  to  Toronto  good  l<a  tbirtr  daji, 
wherein  tbe  purchaser  agreed  to  the  condition  inter  aUe*,  that  on  hia  depart- 
ure from  Toronto,  he  would  call  at  the  company's  office  there,  and  for  the  pur- 
pose of  identlQcation,  sign  the  ticket  in  the  presence  of  the  agent,  agreeing  to 
return  to  New  Orleans  within  fifteen  dajs  from  the  date  of  such  dgning. 
The  purchaser  proceeded  to  Toronto  and  on  Jul;  14,  signed  the  condition, 
and  then  spent  some  time  at  Buffalo,  his  real  destination.  The  limit  of  the 
ticket,  tbe  end  of  tbe  thirty  days,  was  Angost  8tb.  On  August  8,  the  pur- 
chaser was  ejected  from  tbe  train  while  returning  to  New  Orleans,  near  Cin- 
cinnati,  the  conductor  refnsing  to  take  tbe  ticket,  alleging  that  the  fifteen 
days  having  expired,  it  was  worthless.  Tbe  purchaser  alleged,  that  until 
the  conductor  refused  to  take  the  ticket,  he  was  unaware  of  the  condition. 
Id  a  suit  to  recover  damages  for  sncb  expulsion,  it  was  luHd,  that  the  paasen- 
ger  could  not  recover,  and  was  bound  by  the  contract. 

Appeal  from  tlie  civil  district  conrt,  Parish  of  OrleuiB. 
Leonard,  Maria  db  Brtten  for  plaiotifi. 
Baytie,  Det^gre  dk  Bayne  for  defendant. 

PooHB,  J. — PlaintiflE  claimg  damages  in  the  amonnt  of  ten  thoa- 
eand  dollars  on  tbe  gronnd  that  he  was  illegally  and  wrongfnilj 
ejected  from  one  of  the  company's  trains,  on  wbicli  he  was  a  pas- 
senger. 

The  defence  is  sabstantially  that  tbe  ticket  which  plaintiff  ten- 
dered to  tbe  condactor  for  bis  fare  bad  expired  br  limitation  under 
the  very  terms  stipulated  therein,  as  accepted  by  plaintiff  nnder 
hia  fiignatnre;  and  that  when  called  on  to  pay  his  fare  as  an  ordi- 
nary  passenger,  pininciff  had  refused  compliance,  preferring  to 
leave  tbe  train  at  a  way-statiou. 

Defendant  appeals  from  a  judgment  of  $5000,  in  favor  of 
plaintiff. 

The  facts,  as  we  gather  them  from  the  preponderence  of  the 
evidence,  are  as  follows : 

In  the  summer  of  1886,  the  defendant  company  offered  for  sole 
tickets  to  go  from  New  Orleans  to  Toronto,  Canada,  and  return,  at 
the  reduced  rate  of  $42  for  the  ronnd  trip ;  good  from  the  1st  of 
Jane,  to  the  Slst  of  October  of  that  year;  and  at  tbe  same  time 
ofiered  tickets  for  the  same  trip  good  for  thirty  daj-s  from  the  date 
SI  A.  &  E.  R.  Cas.-9 


^dbyGoOglc 


130      EAWITZKT   V.  LOtriSVILLB  AND   NASHVILLE   R.  CO. 

of  the  pnrcliase,  at  the  still  further  reduced  rate  of  $26.25.  Ob 
the  8th  of  July,  plaintiff  bought  a  ticket  of  the  latter  deBcription^ 
and  left  for  hie  journey  on  the  same  day.  Written  leiigtliways  on 
the  face  of  the  ticket,  in  red  ink,  were  the  words:  "Limited  to 
AngQSt  8,  1886;"  and  the  ticket  also  contained  the  signature  of 
the  company's  ageut  and  that  of  pluintifi,  as  well  as  mention  of  the 
date  of  aale.  Among  numerous  other  conditions  of  the  contract 
printed  on  the  ticket  was  the  stipulation  which  bound  the  pur- 
chaser, on  his  depai-tnre,  returning,  to  identify  himself  as  such  by 
writing  his  name  on  the  back  of  the  contract  in  the  presence  of  the 
ticket  agent  at  the  point  to  which  the  ticket  was  sold,  and  by 
which  the  purchaser  agreed  "  that  this  ticket  and  conpone  shall  to 
good,  returning,  fifteen  days  onh'  after  such  date." 

It  is  then  shown  that  plaintiS  was  thus  identified  at  the  ticket 
offloe  in  Toronto  on  the  litii  of  July,  and  that  he  was  eiected 
from  the  company's  train  at  a  point  between  Cincinnati  and  Lonia- 
ville  on  the  Sd  of  August  of  that  year,  nnder  the  following  cir- 
cnmstances : 

A  short  time  after  leaving  Cincinnati,  on  his  way  to  Kew 
Orleans,  when  plaintiff  was  called  on  for  his  fare  by  the  conductor 
in  i^arge  of  the  throngh  train  from  Cincinnati  to  LonisTitle,  Ky., 
plaintiiE  tendered  the  ticket  hereinabove  described,  and  on  which 
De  bad  travelled  from  Toronto  to  Buffalo  (New  York),  and  thence 
to  Cincinnati ;  whereupon  he  was  informed  by  the  conductor  that 
the  ticket  could  no  longer  avail  him,  for  the  reason  that  under  its 
own  terms  it  had  expir^  by  limitation,  as  more  than  fifteen  days 
had  run  from  the  date  of  identification  at  Toronto,  July  14tli,  to 
the  day  on  which  the  ticket  had  been  tendered  by  plaintiff  in  pay- 
ment of  his  fare.  After  considerable  discussion,  during  which 
plaintiff  insisted  that  his  ticket  was  yet  good,  as  it  was  limited  to 
Aagnst  8th,  and  during  which  he  was  advised  by  the  conductor  to 
pay  his  fare,  about  $3.50,  to  Louisville,  where  lie  might  make 
suitable  arrangements  at  the  general  ofiice  of  the  company,  at 
which  place  only  he  could  find  an  officer  empowered  to  revive  the 
extinct  contract,  offering  at  the  same  time  to  give  him  a  printed 
receipt  of  the  amount  paid,  which  he  might  perhaps  recover  at 
that  office,  and  on  the  persistent  refusal  of  plaintiS  to  pay  such 
fare,  he  was  ejected  at  a  way-etation  at  ahont  an  honr's  run  west 
of  Cincinnati.  At  that  point  he  telegraphed  the  facts  to  a  friend 
in  this  city,  who  made  necessary  arrangements  to  secure  a  ticket  to 
carry  him  from  Louisville  to  New  Oileans,  informing  him  by  tel- 
egram that  he  would  find  such  ticket  at  the  company's  general 
office  in  Louisville. 

Plaintiff  then  bought  a  ticket  to  the  latter  point,  where  he  foand 
his  ticket  for  New  Orleans,  at  which  place  he  arrived  in  due  time, 
having  been  detained  twenty-four  hoars  by  the  unpleasant  incident. 


^d  by  Google 


TICKETS — TIME  LIMITATION — CONTRACT.  131 

Tliere  U  no  proof  or  even  an  intimation  that  violence  or  hareli 
oieans  were  nsed  in  ejecting  plaintiff  from  the  train.  Hence,  the 
pivotal  qneBtion  in  the  case,  ia  to  ascertain  whether  the  company, 
throngh  its  agent,  had  the  legal  nght  to  conclude  tliat  by  the  acts 
of  plaintiff,  its  contract  with  him  had  expired  on  the  3d  of  Au- 

fDSt,  thereby  jnetifying  tJie  defendant  in  refiiBiiig  to  carry  him 
arther  on  tlie  ticket  which  lie  had  bought  from  it  on  the  8th  of 
July  previous. 

That  question  suggests  the  discussion  of  two  propoBitione  : 

let.  Whether  the  stipulation  contained  in  the  contract  by  which 
a.  ticket  sold  for  thirty  days  may  expire  before  tliat  time,  by  the 
act  of  the  purchaser,  if  lie  happens  to  have  himself  identified  at 
the  point  of  termintiB  of  hie  journey,  more  than  fifteen  days  before 
the  expiration  of  the  thirty  dayB,  or  before  the  time  at  which  he 
Beeka  to  use  the  ticket,  is  in  law  a  reasonable  condition. 

Sd.  Whether  that  clauee  was  in  law  and  in  fact  a  part  of  plain- 
lifi's  contract  with  the  defendant  company. 

I.  We  do  not  understand  that  plaintifTs  couneel,  either  in  their 
pleadings  or  in  their  argument,  contest  or  dispute  the  legal  and 
'ttioding  force  and  effect  of  the  clanse  as  part  of  a  carrier's  con- 
tract ;  and  at  this  stage  of  railroad  jurisprudence,  such  a  contention 
wonld  be  of  little  or  no  avail. 

All  the  writers  on  railroad  law,  and  numerous  decisions  of  the 
.courts  of  the  country,  concede  the  right  of  common  carriers  to  in- 
clude such  restrictions  on  their  contracts  for  the  transportation  of 
passengers.  Thompson  on  Carriers,  70  et  «c^.,  375;  Hutchinson 
on  CarrierB,  §§375,  581;  Woods  on  Eailway  Law,  1407,  U38, 
1439;  Frederick  v.  Marquette,  etc.,  37  Mich.  342;  Ciiurohiil  «. 
Chicago  R.,  67  111.  890;  Vorlon  «.  Milwaukee  R.  64  Wis.  234; 
Pennington  v,  Philadelphia,  Wilmington  &  Baltimore  R.  Oo., 
18  Am.  &  Eiiff.  R.  R.  Cas.  310  ;  Howard  v.  Chicago,  St.  Louis  & 
New  Orleans  R.,  18  Am.  &  Eng.  R.  R.  Cas.  313. 

It  appears  from  the  record  in  this  case  that  the  object  in  requir- 
ing the  identification  of  the  purchaser,  and  of  the  limit  of  use  of 
tickets  after  fifteen  days  from  the  date  of  Buch  identification,  is  to 
■check,  as  much  as  possible,  any  speculation  or  trading  in  tickets 
whicli  are  sold  at  greatly  rednced  rates.  And  although  the  com- 
pliance with  such  a  condition  entails  considerable  annoyance  npon 
the  purchaser,  it  does  not  appear  that  the  condition  ib  reprobated 
by  law,  or  is  liable  to  the  objection  that  it  is  unreasonable. 

A  regulation  of  similar  import  was  recently  submitted  to  judi- 
cial test  in  this  State,  and  on  the  occasion  it  was  held  by  the  conrt, 
that: 

"  The  rules  of  a  city  railroad  company  acting  under  a  contract 
with  the  city  which  requires  the  company  to  cany  passengers  over 
two  sectioQB  of  ite  line  for  one  fare,  wnicn  require  such  passenger 


^d  by  Google 


133      RAWITZKT  V.  LOUISVILLfe  AND   NASHVILLE   E.'  CO. 

to  keep  and  show,  undetached  by  biin,  a  coupon  ticket,  as  a  voucher 
of  hie  riglit  to  continue  in  the  car  beyond  a  given  point,  are  reason- 
able in  law." 

In  that  case,  the  company  was  justified  for  having  ejected  a 
passenger  who  had  tendered  the  requisite  voncJier,  but  already  de- 
tached, and  who  refused  to  tender  an  undetached  voncher  or  to 
pay  jegnlar  fare.  A  partial  compliance witli  the  rules  of  the  com- 
pany was  held  insufficient  to  entitle  the  pitsaenger  to  continue  his 
ride  on  the  second  section  of  the  company's  line.  DeLncas  «, 
Railroad  Co.,  38  La,  Ann.  930,  and  authorities  cited  therein. 

We  therefore  hold  that  the  etipnlution  contained  in  a  ticket  by 
which  the  use  of  the  same  is  restricted  to  fifteen  days  after  the 
identification  of  the  original  purchaser  at  the  tenninns  of  his  jour- 
ney, as  evidenced  by  the  ticket  in  this  case,  is  binding  on  such 
pnrcliaser.  As  a  part  of  tiie  contract  it  must  be  enforced,  and  a 
refusal  of  compliance  by  the  purchaser  exposes  him  to  be  ejected 
from  the  company's  train  of  cars. 

"A  party  who  refuses  to  comply  with  the  mode  of  paying  his 
fare  as  agreed  upon  between  himself  and  the  carrier,  is  under  the 
same  condition  of  one  who  refuses  absolntely  to  pay  any  fare  at 
all ;  and  lience,  the  only  alternative  is  to  carry  him  for  nothing,  or 
to  eject  him  if  he  refuse  to  leave  when  requested  so  to  do.*' 
DeLucas'  case,  38  La.  Ann.  933. 

But  plaintiffs  contcution  is  that  the  clause  was  not  a  part  of  his 
agreement  with  the  company,  and  this  leads  ns  to  the  considera- 
tion of  the  second  point  of  discussion. 

IL  According  to  the  views  taken  of  their  case  by  the  plaintiff's- 
couiisel,  that  contention  is  the  crucial  test  of  the  controversy, 
for,  as  we  have  already  said,  they  do  not  put  directly  at  issue  the 
right  of  a  common  carrier  to  incorporate  such  a  condition  in  a  con- 
tract for  transportation. 

Plaintiff's  point  is  that  the  clause  in  question  was  intended  as  a 
part  of  the  contract  under  the  company^  original  plan  or  scheme, 
which  consisted  in  selling  tickets  to  Toronto  and  return  at  the  rate 
of  142  for  the  ronnd  tnp,  and  good  from  the  date  of  purchase, 
which  would  be  June  Ist  to  the  Slat  of  October  following,  and 
that,  although  for  convenience  sake,  the  piinted  form  of  tickets 
under  said  original  scheme  was  used  to  evidence  his  contract  with 
tlie  company,  tlie  clanse  in  question  was  not  a  part  of  his  obli^ 
tion,  under  liis  contract,  which  came  under  a  special  and  a  differ- 
ent sciieme  by  means  of  which  all  tickets  sold  were  good  for  thirty 
days  independently  of  the  date  of  identification  at  the  terminal 
point  of  the  journey.  But  the  argument  is  not  sustained  by  the 
record.  Under  a  proper  construction  of  his  own  pleadings,  plain- 
tiff is  estopped  from  urging  that  contention.  For  there,  neio 
terms  admits  that  the  clause  in  question  was  a  part  of  hia  contract. 


^d  by  Google 


TICKETS— TIME   LIMITATION — CONTRACT.  133 

Hie  petition  contaiiiB  tlie  following  anambignonB  averment : 
*'Yoar  petitioner  further  represents  tuat  after  hie  arrival  at  the 
said  Toronto,  Ontario,  he  being  deeirons  of  returning  to  the  said 
■city  of  New  Orleans,  petitioner  repaired  to  the  ticket  office  of  the 
Orand  Trnnk  K.,  afi  in  his  Bald  ticket  directed,  and  as  nnder  hia 
contract  with  the  said  Lonisville  &  Nashville  R.  Co.  he  was  bound 
to  do,  and  then  and  there  identified  himself  ae  the  original  pnr< 
■chaeer  of  the  said  ticket  issned  to  him  as  above  set  forth,  eigned  in 
hia  name  in  his  proper  handwriting,  and  which  signature  was  wit- 
neesed  by  the  said  ticket  agent  at  eaid  Toronto,  who  also  signed 
Iiie  name  below  that  of  petitioner — all  of  which  more  fully  appeara 
from  said  ticket  annexed  to  as  part  hereof." 

Now,  from  an  inspection  of  the  ticket  it  appears  that,  as  above 
stated,  tJie  requirement  of  identification  is  a  part  of  the  clause 
-which  limits  the  validity  of  the  ticket  to  fifteen  days  after  the  date 
■of  identification,  and  that  it  appears  nowhere  else  in  the  contract. 
By  what  rule  of  law  or  pleading  can  plaintiff  claim  the  right  to 
recognize  a  portion  of  a  clause  in  a  wriiten  contract  bearing  iiis 
flignatnre  without  restriction  or  qualification,  and  to  repudiate  the 
other  portions  of  the  same  clause,  and  contained  in  tiie  same  sen- 
tence!    Parties  litigant  must  be  bound  by  their  pleadings. 

An  effort  was  made  to  show  by  parol  testimony  that  the  con- 
tract as  printed  had  been  modified  by  the  company's  agent  who 
■flold  the  ticket,  so  as  to  strip  it  of  the  objection  on  the  part  of  the 
pnrcliaser  to  use  the  ticket  within  fifteen  days  after  identification, 
-and  evidence  was  admitted  for  that  purpose  over  defendant's  ob- 
jections. The  evidence  should  have  been  rejected  nnder  the 
-  effect  of  plaintiff's  own  pleadings  as  hereinabove  stated.  Bat, 
even  if  admissible,  the  testimony  on  that  point  is  not  sufficient  to 
■soBtain  the  contention. 

The  true  construction  of  the  ticket  boiight  by  plaintiff  on  July 
8th,  1886,  as  applicable  to  this  issue  is  that  the  ticket  was  good  for 
the  fare  to  Toronto  and  return  until  the  8th  of  August  following, 
on  condition  that  he  should  be  identified  as  the  original  purchaser 
at  Toronto,  and  that  having  been  identified  on  the  14tli  of  July, 
lie  should  have  completed  his  return  trip  on  or  befoie  the  29th  of 
July,  or  to  be  entitled  to  use  the  ticket  ae  late  ae  the  8th  of  Aa- 
enst,  he  should  have  been  identified  only  fifteen  days  before  that 
'Oate. 

We  are  satisfied  that  plaintiff  was  in  good  faith,  and  that  his 
misfortune  can  be  attributable  only  to  liie  failore  to  properly 
understand  all  the  conditions  stipulated  in  the  contract.  He  ad- 
mits that  he  iiad  never  read  these  conditions  before  he  was  ejected 
from  the  train  ou  the  3d  of  August. 

The  whole  trouble,  as  we  gather  from  his  testimony,  was  that 
^  Toronto  was  not  the  objective  point  of  bis  journey,  and  that  his 


^d  by  Google 


134      WABA3H,  ST.  LOUIS  AND   PACIFIC   E.  CO.  V.  FABVEK. 

BoIe  pnrpoee  in  visiting  that  city  was  to  be  identified  by  tlie  agent 
of  tbe  company  at  tliat  place  in  compliance  with  the  stipulatioo  to 
that  effect  in  tlie  contract. 

His  trip  was  intended  to  vieit  friends  and  relatives  at  Bnffalt^ 
N.  Y.,  where  he  sojourned  from  the  15th  of  July  to  the  2d  of 
Augnst. 

He  mnst,  therefore,  be  lield  in  law  as  responsible  for  all  the 
troubles  which  befell  him  on  the  occasion  wliich  is  the  subject- 
matter  of  this  litigation. 

It  iB  doubtless  a  hard  case  On  him,  and  he  must  have  snfiered 
great  annoyance  and  humiliation  at  being  ejected  from  a  train  on 
which  he  helieved  lie  was  entitled  to  all  tlie  privileges  of  a  passen- 
ger. But  under  the  evidence  in  the  case,  and  in  keeping  with 
well-settled  jurisprudence,  we  have  no  authority  to  infiict  damages 
on  the  corporation,  as  it  violated  no  pai't  of  its  contract. 

It  is  therefore  ordered,  adjudged,  and  decreed  that  the  judgment 
appealed  from  be  annulled,  avoided,  and  reversed,  and  that  there 
be  judgment  in  favor  of  defendant  rejecting  plaintiff's  demantl 
and  dismissing  his  action  at  his  costs  in  botlt  courts. 

Llmit«d  Tima  Tlckati.— PeDnington  e.  PMla.,  etc.,  R  Co.,  18  Am.  Hi 
Eog.  R.  R.  Caa.  810;  Luody  o.  Central  Pao.  R.  Co.,  18  Am.  &  Eog,  R.  R. 


Wabash,  St.  Locis  abb  Faoifio  B.  Ca 


(Adttmet  OoM,  Tndvaui.     May  28,  1887.) 

Where  work  which  does  not  neceBBarily  create  a  nuieuice,  hut  ia  In  itself 
harralcBS  and  lawful  when  cttreful);  cooducted,  is  let  bj  an  employer,  who 
merel;  prescribes  the  end  to  another,  nho  undertakes  to  sccomplisb  the  end 
prescribed,  by  tneans  which  he  is  to  employ  at  his  discretion,  the  latter  is,  in 
respect  to  the  means  employed,  the  master;  and  if,  during  tbe  progress  of  the 
work  a  third  person  sustains  injury  by  the  negligent  use  of  the  means  em- 
ployed and  controlled  by  the  contractor,  the  employer  is  not  answerable. 

Tlie  defendant  railroad  company  employed  a  man  to  furnish  and  superintend 
a  portable  steam-engine  to  pump  out  of  the  way  some  running  water,  which 
interfered  with  the  digging  of  a  well  by  tbe  company.  The  man  thus  em- 
ployed had  the  sole  management  of  the  ensine,  and  neither  the  railway  com- 


with  was  aa  Independent  contractor,  and  the'railroad  company 
spoDsible  for  injury  resulting  from  hie  negligent  conduct. 


pany  nor  any  of  its  employees  had  the  right  to  interfere  in  any  way  in  tbe 
manner  or  time  of  running  the  engine.  Held,  that  the  person  «0  contracted 
--■•--  '    '  J     -  --    .  ,  ..  .^   ...   ._^    ^  ^^  ijjjj  j^ 

bvGoogIc 


MASTER  AND  SERVANT— INDEPENDENT  CONTRACTOR.      135 

Appeal  by  defendant  from  a  judemeDt  of  the  DeKalb  eircnit 
court  in  favor  of  plaintifE  in  an  action  for  pereooal  injorj.  Be- 
versed. 

T)ie  facts  are  stated  in  the  opinion. 

Charles  B.  Stuart  and  WiU,  V.  Stuart  for  appellant. 

CharUa  E.  Emanud  for  appellee. 

MrrcBELL,  J. — This  action  was  bronght  by  Farver  against  the 
railway  company  to  recover  damages  for  personal  injnriee  alleged 
to  have  been  sustained  by  liim  while  lawfully  purening  F*eT». 

his  way  along  a  public  highway  in  a  carriage,  wbicii  was  over- 
turned in  coneeqnence  of  his  hoi-se  having  taken  fright  at  a  porta- 
ble steam-engine  alleged  to  have  been  negligently  placed  in  or 
near  the  highway  by  the  company. 

The  confused  stale  of  the  record  makes  it  difficult  to  determine 
whether  the  case  was  tried  upon  one  or  both  the  complaints  which 
are  copied  into  the  transcript.  Although  the  one  filed  last  is 
Btyled  an  amended  complaint,  the  subsequent  proceedings  indicate 
that  both  wei-e  treated  as  in  tlie  record.  The  case  seems  to  have 
been  tried  upon  that  theory.  Counsel  are  at  variance,  however,  as 
to  this  matter'  but  the  view  we  take  of  the  case  makes  it  quite 
immaterial  whether  it  be  one  way  or  the  other.  The  evidence 
tends  to  show,  witbont  conflict  or  substantial  dispute,  that  in  Sep. 
tember,  1882,  the  railway  company  was  engaged  in  constructing  a 
well  or  reservoir  from  which  to  supply  a  water  station  on  the  line 
of  its  road,  near  Auburn,  Indiana.  Iluiiiiing  water  interfered  with 
the  work,  and  it  became  necessary  to  cause  the  acciimnlating 
water  to  be  pnmped  out  of  the  way,  so  as  to  prevent  it  from  run- 
ning into  the  well  or  reservoir  which  was  in  process  of  eonatruc- 
tion.  The  construction  of  the  welt  and  laying  pipes  thence  to  the 
water  station  bad  been  committed  to  the  cliarge  of  a  Mr.  Kress,  an 
employee  of  the  railway,  who,  with  a  foroe  of  men  under  iiis  con- 
trol, was  engaged  in  providing  means  to  supply  the  station  with 
water.  Williams,  who  resideain  or  near  Auburn,  was  the  owner 
of  a  email,  portable  steam-engine  wiiich  he  was  accustomed  to  em- 
ploy in  sawing  wood,  threshing  grain,  pumping  water,  and  the 
like,  as  opportunity  offered.  He  contracted  with  Kress,  for  a  stip- 
ulated eavnper  diem,  to  furnish  and  operate  his  engine  in  pump- 
ing at  such  times  as  might  be  necessary  in  order  to  keep  the  water 
from  interfering  with  the  work-  which  tiie  latter  was  constrncting. 
Williams  agreed  to  furnish  his  engine,  and  personally  superintend 
the  running  of  it,  and  to  provide  and  pay  for  such  assistance  as  he 
needed  in  keeping  the  water  from  obstructing  the  progress  of  the 
work.  If  it  became  necessary  that  lie  should  run  the  engine  at 
night  he  was  to  receive  extra  compensation.  In  pursuance  of  this 
ag^ement  the  latter  placed  his  engine  in  a  vacant  lot,  some  6  feet 


^dbyGoOglc 


136      WABASH,  ST.  LOUIS  AND   PACIFIC   R.  CO.  V.  FARVER. 

or  more  outside  the  line  of  a  pablic  highway,  which  intersected 
the  railway  company's  line  at  or  near  tlie  point  where  the  reser- 
voir was  being  coDBtructed.  So  far  as  appears,  lie  selected  the  lo- 
cation of  the  engine,  and  controlled  ita  operation,  aa  the  work  he 
engaged  to  do  required.  When  the  accumulated  water  was 
pumped  down  to  a  certain  level,  or  when  pei-Bong  were  paGsing  on 
the  higjiway,  tiie  engine  was  stopped ;  and  wiien  the  water  rose  to 
a  certain  height,  the  pumping  was  resumed.  While  Williams 
was  thus  engaged  in  carrying  oat  his  agreement,  the  plaiiitiffa 
horee,  in  passing  along  the  adjacent  highway,  took  fright  at  the 
engine  and  became  unmanageable.  The  plaintiff  was  thrown  from 
his  carriage  and  injured.  The  question  is  whether,  under  the  cir- 
cumstances, t  lie  railway  company  is  liable  for  the  negligence  of 
Williams,  assuming  that  he  was  negligent  in  operating  liis  engine 
BO  near  the  public  Lighway. 

Tlie  rule  which  controls  in  cases  of  this  class  has  become  well 
established,  and  has  more  than  once  been  recomiized  and  applied 

by  tliifi  court.  Evan  v.  Curran,  64  Ind.  3+5 ;  Sessengnt 
S^™S^  V.  Posey,  67  Ind.  408 ;  Logansport  v.  Dick,  70  Ind.  79. 

Under  this  rule,  wliere  work  which  does  not  necessa- 
rily create  a  nnisance,  but  la  in  itself  liannless  and  lawful  when 
carefuliy  conducted,  is  let  by  an  employer,  who  merely  pi-escribes 
the  end  to  anotlier,  who  nndertakes  to  accoinplisli  the  end  pre- 
Bcribed  by  means  which  he  is  to  employ  at  his  discretion,  the  lat- 
ter is,  in  respect  to  tiie  means  employed,  the  master.  If,  during 
the  progress  of  the  work,  a  tliird  person  sustains  injury  by  the 
negligent  use  of  the  means  employed  and  controlled  by  the  con- 
tractor, the  employer  is  not  answerable.  Tlie  inquiry  in  such  a 
case  is,  Did  the  relation  of  master  and  servant  subsist  between  the 
person  for  whom  the  work  was  done  and  the  person  whose  negli- 
gence occasioned  the  injnry  ?  If,  in  rendering  the  service,  the  per- 
son whose  negligence  caused  the  injury  was  in  the  coiii-se  of  ac- 
complishing a  given  end  for  his  employer,  by  means  and  methods 
over  which  the  latter  had  no  control,  but  which  was  subject  to  the 
exclusive  control  of  the  person  employed,  tlien  such  pei'son  is  ex- 
ercising an  independent  employment  and  the  employer  is  not 
liable. 

If,  on  the  other  hand,  the  end  to  be  accomplished  was  unlawful, 
or  if,  in  and  of  itself,  it  necessarily  resulted  in  the  creation  of  a 
nuisance,  or  in  making  a  place  dangerous  which  the  employer  was 
nnder  a  pecnliar  obligation  to  keep  secure,  then,  regardless  of  the 
relation  which  existed  between  the  employer  and  tlie  person  whose 
negligent  conduct  caused  the  injurv,  the  eniployer  is  liable  for  a 
breach  of  dnty.  Cuff  v.  Newark  &  N.  T.  It.  Co.,  35  N.  J.  L.  17; 
e.  c,  9  Am.  L.  Reg.  N.  S.  541 ;  Smith  v.  Simmons,  103  Pa.  32; 
HairisoD  v.  Collins,  86  Pa.  153 ;  School  District  of  Eiie  v.  Fness, 


^dbvGooglc 


MASTER  AND  SERVANT — INDEPENDENT  CONTRACTOR.      137 

98  Pa.  600 ;  Hunt  v.  Pennsylvania  K.  Co.,  51  Pa.  475 ;  Cnllilian 
«.  Bnrlington,  etc.,  Co.,  13  Iowa  562 ;  Eaton  v.  European  &  N.  A. 
R.  Co.,  59  Me.  520  ;  De  Forrest  v.  Wriglit,  2  Midi.  368 ;  Moore 
w.Sanborne,  2  Midi.  520;  Corbin  «.Ainei'ican  Mills,  27  Conn.  274; 
Bailey  v.  Troy  &  B.  R.  Co.,  57  Vt.  252  ;  Wood,  Mast.  &  Seiv.  § 
313.  etpasdm;  Cooley,  Torts,  p.  648. 

The  application  of  tlie  foregouig  prineiplea  to  the  facts  in  hand 
leads  to  .the  condneion  that  the  appellant  was  not  liable.  The 
work  contracted  to  be  done  was  not  in  itseff  unlawful,  ^  ^^ 
nor  was  it  necessarily  a  nnisance  to  operate  a  portable  uwrm.  a™ 
steam-engine,  in  a  careful  manner,  in  close  proximity 
to  a  public  highway.  Injury  could  only  result  from  its  negligent 
nse.  It  would  not  do  to  say  that  the  operation  of  a  portable  en- 
gine near  a  public  highway  necessarily  resulted  in  creating  a  nni- 
sance, when  it  is  according  to  daily  experience,  during  certain  sea- 
sons of  the  year,  to  see  ateani  threshing-machines  in  operation  on 
every  hand,  and  often  necessarily  close  to  public  liighwajs.  Road 
engines  propelled  by  steam,  and  portable  enpnnes  operated  by 
steam,  have  become  familiar  in  every  agricnllnral  community. 
To  declare  that  their  use  near,  or  their  passage  over,  a  pnblic  higli- 
■way,  constitnted  a  nuisance,  would  be  practically  to  prohibit  their 
use  in  the  manner  in  which  they  are  customarily  employed  and 
moved  from  place  to  place.  It  must  be  supposed  tliat  horses  of 
■ordinary  gentleness  have  become  so  familiar  with  these  objects  as 
to  be  safe  when  nrider  careful  guidance.  Piollet  v.  Simmers,  106 
Pa.  95;  Gilbert  v.  Flint  &  P.  M.  R.  Co.,  51  Mich.  488;  s.  c,  15 
Am.  &  Eng.  R,  R.  Oas.  491 ;  Macombcr  v.  Nichols,  34  Mich.  212. 

Now,  as  to  the  relation  between  the  railway  company  and  Will- 
iams, keeping  in  view  the  rule  that  where  an  employee  is  exer- 
-cising  an  independent  employment,  and  is  not  nnder  ^^  ^^ 
the  control  and  direction  of  the  employer,  the  latter  vao  aount 
is  not  responsible  for  the  n^ligence  or  misdoings  of  raKnm^  cow- 
the  former.  King  v.  New  York  C.  &.  H.  R.'R.  Co., 
■66  N,  Y.  181.  It  is  nowhere  denied  but  that  Williams  was  em- 
ployed to  furnish  and  suirerintend  the  running  of  his  engine,  to 
the  end  that  the  water  might  be  pumped  out  of  the  way  so  as  to 
admit  of  the  prosecution  of  the  work  in  which  tiie  railway  com- 
pany was  engaged.  In  respect  to  the  engine  and  the  manner  of 
operating  it,  ne  was  the  sole  master,  and  had  the  right  to  employ 
■whomsoever  he  pleased  to  assist  him.  Neither  the  railway  com- 
pany nor  any  of  its  employees  had  the  right  to  run  tlie  engine  or 
interfere  in  the  manner  of  its  running,  or  to  direct  its  owner  how 
and  when  it  should  be  run.  The  only  right  the  company  had  in 
respect  to  the  matter  was  to  require  Williams  to  accomplish  the 
ena  of  keeping  the  water  out  of  the  way  of  its  workmen.  In  re- 
spect to  his  engine  and  its  control,  and  his  liability  for  its  negli- 


^d'byGoOglc 


138       CINCINNATI,  INDIANAPOLIS,  ETC.,  E.  CO.  V.  LONG. 

gent  nae,  t)ie  latter  was  as  much  an  independent  contractor,  when 
pumping  water  for  the  railway  company,  as  when  sawing  wood 
and  threshing  wheat  for  persons  in  the  neigiihorhood.  His  relation 
to  the  railway  company  wliile  executing  liis  contract  for  it  was 
precisely  the  same  as  to  others  while  executing  work  for  them 
with  his  engine,  under  contracts.  It  would  be  a  startling  proposi- 
tion to  affirm  that  every  person  who  employs  the  owner  of  an 
engine  and  machinery  to  saw  wood  or  tliresh  his  crop  would  be 
liable  to  any  pei-son  who  might  be  hurt  through  the  negligence  o£ 
the  operator  or  his  assistants,  although  the  employer  liad  no  con- 
trol over  the  raaeliinery,  and  no  iiiitiiediate  direction  over  those 
engaged  in  its  operation.  Tlie  conclusion  thus  reached  npon  the 
facts  renders  it  unnecessary  t)iat  we  should  examine  in  detail  all 
the  various  questions  discussed  in  the  briefs.  Tlie  evidence  does 
not  sustain  the  finding.  The  court  erred  in  overruling  the  motion 
for  a  new  trial.     Judgment  revei"sed,  with  coats. 

Llabiltty  of  Company  for  Tortt  of  Indapandsnt  Contractor. — Bee  Coolon 
V.  Eastern  R.  Co.,  IB  lb.  100;  New  OrleaDS,  etc,  R.  Co.  e.  Reese,  18  lb.  110; 
BdmundaoQ  v.  Pittsburgh,  etc.,  R.  Co.,  S8  lb.  428;  Maosfield  v.  New  York, 
etc,  R.  Co.,  33  Am.  &  Eng.  R.  R.  Caa.  144.  For  a  full  diacossion  of  the 
subject,  IM  note  to  16  Am.  &  Eog.  R.  R  Cas.  100-llS. 


OraonraATi,  Ihdiajiapolm,  St.  Lodis  amd  Ohioaoo  R  Ca 

V. 

Long,  Adror. 

(Adtaiie*  Cote,  Indiana.     Oet«b«r  SI,  1887.) 

'  PlaintifTs  intestate,  an  eiperieoced  Bwitchmaa  and  brakeman,  wai  run 
over  and  killed  bj  a  backing  train  while  he  was  about  to  awitcfa  aaother 
train  on  a  parallel  track.  In  compliance  with  an  ordinance  of  the  citj  of  In- 
dianapolis, the  backing  train  had  a  watchman  stationed  on  the  rear  car,  who 
eaw  the  deceased  but  did  not  give  him  warning,  as  the  train  was  running 
bIowIj,  with  the  bell  ringing,  and  deceased  was  in  a  position  to  see  it  for 
a  distance  of  143  feet.  The  watchman  testified  that  when  within  eight  or 
ten  feet  from  the  backing  train  the  deceased  looked  directly  at  it.  In  an 
action  bj  the  administrator  for  damages,  h«ld: 

1.  That  the  ordinance  was  not  violated  because  the  watchman  did  not  give 
special  warning  to  the  deceased. 

a.  That  there  was  no  negligence  on  the  part  of  the  defendant. 

8.  That  the  deceased  was  guilty  of  contributory  negligence  and  could  not 
recover. 

Baker,  Bbrd  <&  Hendricks  for  appellant. 

JS.  N.  Spaan  and  Albert  Wiskara  tor  appellee. 


^d  by  Google 


MASTEE  AND   8EEVANT — BACKITTG  TRAIN — KEGLIGBNOE.    139> 

KtTCBELL,  J, — Long,  as  the  adminietrator  of  the  estate  of 
Charles  Hampton,  deceased,  sued  the  appellant  railway  company 
to  recover  damages  for  wrongfully  and  negligently  causing  the 
death  of  the  decedent.  The  paragraph  of  the  complaint  to  which 
tbe  evidence  seems  to  have  been  addressed,  charges  ttiat  ricn. 

the  negligence  consisted  in  the  employees  of  the  railway  company 
backing  a  locomotive  engine  and  certain  cars,  under  their  control 
and  management,  over  and  npon  Hampton,  without  giving  him 
warning  of  their  approach,  and  in  violation  of  sections  1  and  2  of 
an  ordinance  of  the  city  of  Indianapolis';  the  accident  having  oc- 
cnrred  iu  that  city.  These  sections  provided,  in  substance,  thiit  it 
shoald  be  the  duty  of  every  engineer,  conductor,  or  other  pei-son 
engaged  in  running  a  locomotive  engine,  to  ring  the  bell  at- 
taclied  thereto  whenever  the  same  should  be  moving  through  the 
city,  and  that  it  s)ioald  be  nnlawfnl  to  run  any  locomotive  or  train 
of  cars  backward,  in  or  through  the  city,  without  stationing  a 
watchman  or  other  person  on  the  rear  end  of  the  train,  in  order  to 
avoid  accidents.  The  jury  returned  a  general  verdict  for  the 
plaintiff,^ assessing  his  damages  at  $4000.  They  also  retui-ned  an- 
Bwers  to  52  special  intern^atories.  There  was  a  judgment  upon 
the  verdict.  Yarious  incidental  questions  are  pi'esented,  but,  upon 
careful  consideration,  it  seems  to  us  the  merits  of  the  whole  con- 
troversy are  all  involved  in  a  single  inquiry,  and  that  is.  Can  the 
Terdict  and  judgment  be  maintained  upon  the  undisputed  facts,  as 
they  are  disclosed  by  the  record ) 

We  shall  regard  the  special  findings  of  the  jury,  together  with 
tbe  admitted  facts,  and  such  as  are  supported  by  reasonable  and 
uncontradicted  evidence,  as  embracing  the  established  facte  in  the 
oase.     Briefly  stated,  the  facts  thus  established  are  as  follows: 

On  the  fifteenth  day  of  November,  1883,  and  for  some  time 
prior  thereto,  the  plaintiff's  intestate,  an  esperienced  switchman 
and  brakeman,  familiar  with  the  locality  and  the  movements  of 
trains  at  the  place  where  he  was  injured,  was  in  the  service  of  the- 
Indianapolis  &  St.  Louis  R.  Co.,  attending  a  switching  engine, 
which  was  used  in  transferring  cars  from  one  point  to  the  other  in 
the  city  of  Indianapolis,  on  and  over  the  tracks  of  tbe  Union  K. 
Co,  At  the  point  where  tbe  injury  occurred,  and  for  some  dis- 
tance either  way,  the  Union  R.  Co.  had  two  tracks  lying  parallel 
with  each  other,  running  substantially  east  and  west.  There  was- 
an  intervening  space  of  seven  feet  and  ten  inches  between  the 
north  rail  of  the  south  track,  and  tbe  sonth  rail  of  the  nortli  track. 
In  this  space  there  was  a  switch  standard,  the  centre  of  which  wi^- 
three  feet  and  eight  inches  from  the  north  rail  of  the  south  track, 
and  four  feet  and  two  inclies  from  the  south  rail  of  the  north 
track.  This  standard  was  designed  for  use  in  moving  a  switch  for 
the  pnrpose  of  switching  cars  on  and  off  the  north  track.     The 


^d  by  Google 


140       CIMCIKNATI,  INDIANAPOLIS,  ETC.,  E.  00,  V.  LONG. 

tracks  were  nf  standard  gEiuge,  and  box  care  passing  over  them  ex- 
tended over  tlie  rails  from  one  foot  eiglit  indies  to  two  feet  two 
inches.  The  appellant's  track,  as  also  tlioee  of  otlier  railways,  con- 
nect with  the  Union  tracks,  wliicli  are  used  under  certain  regula- 
tions by  the  several  railway  companies  centring  in  the  city,  for 
switching  cars,  and  other  local  purposes.  At  the  time  of  the  acci- 
lient,  the  Union  tracks  were  being  need  by  tlic  appellant  and  the 
Indianapolis  &  St.  Louis  B. ;  a  train  belonging  to  the  latter  com- 
pany having  backed  from  the  east,  over  the  sonth  track,  passing 
over  a  switch  to  the  north  track,  where  it  was  standing  or  slowly 
moving. 

In  tiie  line  of  his  duty,  the  plaintiffs  intestate  had  occasion  to 
go  to  the  switch  standard  above  described,  in  order  to  adjust  the 
track  for  the  movement;  of  the  train,  with  the  operation  of  wliich 
Le  was  connected.  While  he  was  occupied  about  the  matter  of 
attending  to  the  switch,  tiie  appellant's  servants,  with  a  train  con- 
■sisting  of  an  engine  and  three  box  care  attached  thereto,  were  back- 
ing westwardly,  in  the  direction  of  the  switch  standard,  along  tlie 
south  track.  They  were  proceeding  at  a  rate  of  speed  less  than 
four  miles  an  hour,  with  the  bell  ringing  continuously,  and  a  full 
complement  of  men  at  their  proper  places,  one  of  the  brakemen 
occupying  a  place  as  lookout  on  the  rear  car  of  the  backing  train. 
The  train  thus  backing  was  in  fnll  view  of  the  switclt  standard,  at 
or  near  which  the  deceflsod  was  struck,  for  a  distance  of  142  feet, 
and  the  jury  find  that  the  deceased  could  have  seen  the  approacli- 
ing  train  if  he  liad  looked  in  that  direction.  The  uncontradicted 
testimony  of  tite  brakeman,  who  was  on  the  rear  end  of  the  back- 
ing train,  was  to  the  efiect  that,  when  the  train  came  in  sight  of 
the  standard,  he  saw  and  recognized  the  deceased  walking  west- 
wardly  toward  the  standai-d,  and  that  he  was  at  that  time  a  cai^ 
length  or  more  distant  therefrom.  Whether  he  was  walking  on 
the  track,  or  in  the  space  between,  does  not  very  clearly  appear. 
When  within  eight  or  ten  feet  of  the  standard,  the  deceased  looked 
-directly  at  the  backing  train,  and  the  watchman  on  the  rear  car, 
believing  that  the  deceased  saw  the  train,  gave  him  no  special 
warning  of  its  approach.  It  does  not  clearly  appear  whether  the 
deceased  had  thrown,  or  was  just  about  to  throw  or  turn,  the 
switch  as  the  train  neared  the  standai-d,  but,  while  at  or  abont  the 
standard,  he  was  etmek  by  the  projecting  side  of  the  rear  car,  and 
thrown  upon  the  track,  and  crushed  by  the  wlieels,  so  that  death 
-ensned  shortly  thereafter. 

Keeping  in  view  the  well-settled  rule,  applicable  in  all  cases  of 
this  character,  that  the  plaintiff  assnmes  the  burden  of  proving 
that  the  injnry  complained  of  resulted  from  the  negligence  of  the 
defendant,  without  any  concurring  fault  on  the  part  of  the  person 
injured  which  contributed  to  produce  the  injurious  consequences, 


^d  by  Google 


MASTER  AND  SERVANT — BACKING   TRAIN — NEGLIGENCE.    141 

we  proceed  to  ooneider  tlie  qaestions  presented  by  the  foregoing 
facts. 

In  behalf  of  the  appellee,  it  is  ingenuonsly  argaed  that  the  case 
was  made  out  within  the  recognized  rules,  becaase,  it  , 


is  said,  the  appellant's  employees  were  acting  negli-  •>""*"■ 

fently,  and  in  violation  of  the  spirit  of  the  ordinance  of  the  city  of 
iidiaaapolis  heretofore  referred  to,  in  tliat  the  watcliman  who,  ac- 
cording to  the  requirement  of  the  ordinance,  was  stationed  on  the 
rear  end  of  the  train,  in  order  to  avoid  accidents,  neglected  hia 
duty  by  failing  to  warn  the  deceased  of  the  approaching  train. 
The  appellee  contends,  notwitlistanding  the  deceased  might  have 
seen  tlie  train  at  any  time  after  it  arrived  within  a  distance  of  143 
feet  from  the  place  where  he  was  injured,  that  he  was  occupied 
with  duties  which  necessarily  absorbed  his  entire  attention,  and 
that  hence,  in  the  absence  of  special  warning  from  the  watchmaa 
on  tlie  rear  car,  he  was  guilty  of  no  contributory  negligence  in 
failing  to  look,  and  in  not  avoiding  contact  with  the  moving 
train. 

It  is  a  well-settled  and  reasonable  proposition  that  an  employer 
who  places  an  employee  in  a  perilons  position,  and  exacts  of  him 
duties  which  necessai-ily  require  his  attention  and  ab- 
sorb his  mind,  most  exercise  vigilance  in  protecting  the  j 
employee  from  perils  not  directly  arising  from  the  work  J 
in  nand.  Wood,  Most.  &  Serv.  %  368.  Although  an 
employes  assumes  all  the  hazards  reasonably  incident  to  the  serv- 
ice in  which  he  engages,  he  lias  a  right  to  rely  on  the  fact,  when 
placed  in  a  situation  of  danger,  where  engrossing  duties  are  re- 
quired of  him,  that  the  employer  will  not,  without  proper  warur 
mg,  subject  him  to  other  perils  unknown  to  the  employee,  and 
from  which  the  work  exacted  necessarily  distracts  his  attention. 
Coombs  V.  Coi-d^  Co.,  102  Mass.  572;  Engine-works  v.  Randall, 
100  Ind.  293;  Haley  v.  Case,  142  Mass.  316;  Lee  v.  Woolsey, 
110  Pa.  St.  — . 

It  may  well  be,  therefore,  where  a  person  is  rightfully  on  a 
i-ailroad  track,  in  the  discharge  of  duties  which  absorb  his  atten- 
tion, that  it  would  be  regarded  as  negligence  for  those  having  the 
management  of  trains,  and  who  are  or  shonld  be  aware  ^^  _ 
of  the  presence  of  a  pereon  so  sitnate,  to  permit  engines  ■■■««■  oeco' 
or  cars  to  be  run  upon  him  while  so  engaged,  without  i"t  mxnor 
giving  Bn£Bcient  warning  to  enable  the  person  thns  en- 
gaged to  escape  the  danger.  Under  snch  circumstances,  those  who 
nave  the  control  and  management  of  trains  have  no  right  to  as- 
sume that  persons  who  are  required  to  be  attentively  engaged  upon 
the  track,  or  under  or  about  cars  upon  tracks,  will  look  out  for 
moving  tr^ns,  or  apprehend  danger,  in  the  absence  of  such  custom- 
ary signals  or  other  warning  as  the  cireumstances  i-eqnire,  and  as 


^d  by  Google 


142      CINCINNATI,  ISDIA:^AP0L19,  etc.,  B.  CO.  V.  LONG. 

tlioy  are  led  to  rely  upon,  Tims,  in  Qoodfellow  v.  Railroad  C*)., 
106  Mass.  461,  tlie  plaintiff  and  otliei-s  were  employees  of  a  con- 
tractor who  was  engaged  in  constrncting  a  wall  to  support  the 
railroad.  Wliile  holding  a  rope  attached  to  a  derrick  in  actual 
-use,  a  locomotive  engine,  witliout  any  bell  rung  or  signal  given, 
ran  upon  tlie  plaintiff,  who  knew  of  and  relied  upon  the  custom 
of  the  company  to  ring  the  bell  or  sound  the  whistle  whenever  an 
•engine  approaclied  men  working  upon  the  track.  It  was  held  that 
the  railroad  company  was  guilty  of  negligence,  and  that  the  fact 
should  have  been  submittea  to  the  jury  for  their  determination  as 
to  whether  or  not  the  plaiutifE  was  guiltv  of  contributory  negli- 
gence. So  also,  in  Ci-owley  v.  Railway  do.,  66  Iowa,  658  ;  s.  c, 
16  Am.  &  Eng.  R.  R.  Cae.  56,  an  employee  of  the  company  was 
■engaged  in  clearing  a  high  bank  of  snow  and  ice  from  ttie  track. 
He  was  struck  by  a  train  run  at  an  inordinate  rate  of  speed,  and 
without  signals,  and  in  violation  of  an  ordinance,  and  it  was  held 
that  the  employee  had  a  right  to  suppose  that  his  employer  would 
•exercise  care  to  avoid  injnrmg  him  oy  sending  care  along  the  track 
at  an  unlawful  rate  of  speed.  See,  also,  Qaick  v.  Holt,  99  Mass. 
164 ;  Ominger  v.  Railroad  Co.,  4  Hun,  159  ;  Mark  v.  Railway  Co., 
82  Minn.  208. 

Where  those  having  the  control  and  management  of  trains  become 
^aware  of  the  presence  of  a  person  on  the  track,  and  have  reason  to 
^^  believe,  from  his  appearance  or  from  the  manner  in 

^JucI^^^^I  ■■  which  lie  18  Occupied,  that  he  is  either  nnconscions  of, 
or  unable  to  avoid,  the  danger  of  contact  with  the  cars, 
it  becomes  their  duty  to  use  every  reasonable  effort  to  stop  the 
■train  and  arouse  the  attention  of  the  person  on  the  track.  Unless 
those  controlling  the  train  have  reasonable  assurance  that  a  person 
■who  is  seen  at  work  on  a  ti-ack  is  aware  of  the  approach  of  the 
train,  and  that  he  is  in  a  condition  to  apprehend  and  avoid  the 
danger,  they  are  guilty  of  negligence  if  they  fail  to  give  warning 
.and  stop  the  train.  Railroad  Co.  v.  Pitzer,  109  Ind.  179;  s.  c,  25 
Am.  &  Eng.  R.  R.  Cas.  313. 

Propositions  kindred  to  those  above  stated  are  abundantly  sup- 
ported  by  the  autliorities,  but  the  facts  under  consider- 
DTniTToif  A*To  ation  do  not  bring  this  case  within  any  of  the  principles 
"""""^  referred  to.  The  deceased  was  not  pmced  in  a  perilous 
position  by  the  appellant,  nor  by  any  one  towards  whom  it  sus- 
tained any  relation  of  privity;  nor  did  the  nature  of  the  work  in 
which  he  was  engaged  necessarily  require  him  to  be  absorbed  in 
bis  dnties  upon  the  track  over  which  the  appellant's  train  was  pass- 
ing, nor  do  the  facts  disclosed  make  it  appear  that  he  was  actually 
so  engrossed.  The  most  tliat  can  be  said  is  that,  while  engaged  in 
the  ordinary  dnties  incident  to  the  position  of  a  switchman,  the 
deceased  was  upon  common  ground,  where  the  trains  and  servants 


^dbyGoOglc 


KASTER  AKD  SEETANT — BACKING  TRAIN — NEGLIGENCE.    143 

of  all  railroads  using  the  Union  tracks  had  a  right  to  be  in  their 
order.  His  situation,  ae  regards  the  appellant,  was  in  no  material 
respect  different  from  that  of  a  traveller  at  or  upon  a  highway 
crossing. 

The  appellant  owed  the  duty  of  operating  its  train  in  careful 
compliance  with  the  city  ordinancBj  and  with  a  dne  regard  for  the 
safety  of  all  those  who  were  in  the  exercise  of  corre- 
spanding  rights  or  daties  upon  the  tracks  and  grounds  DOTT-Riomro 
of  the  Onion  Company,  or  of  thoee  who  might  be  Dtc>um>  u« 
fonnd  on  the  company's  tracks  and  gronnds.  ft*  em-  ™*"' 
ployees  had  the  right  to  assume  that  the  servants  of  other  com- 
panies who  were  in  the  discharge  of  duties  upon  the  tracks  and 
grounds  of  the  Union  Company  would  observe  a  d^ree  of  care 
commensarate  with  the  known  perils  of  the  situation,  and  tlie  du- 
ties required  of  them.  When  the  appellant  had  properly  manned 
its  train,  and  stationed  a  watchman  on  the  rear  car,  its  employees 
were  justified  in  assuming,  while  backing  at  a  rate  of  speed  less 
than  four  miles  an  hour,  ringing  the  bell  continuously,  that  all 
persons  who  had  arrived  at  years  of  discretion,  and  who  were  in  a 
eitnation  to  see  the  train,  and  who  were  not  so  engaged  as  to  ren- 
der them  oblivious  to  its  approach,  wonid  avoid  contact  with  the 
cars.  When  the  watchman  on  the  rear  car  observed  the  deceased 
walking  towards  the  switch  standard,  presumably  upon  the  open 
space  between  the  north  and  south  tracl^,  he  had  a  right  to  assume 
that  the  latter  had  observed  that  which  he  could  have  seen  and 
beard  if  he  had  been  giving  ordinary  attention  to  the  situation,  and 
that  he  would  not  thrust  himself  into  a  position  where  he  would 
be  certainly  injured. 

Persons  in  the  control  of  railroad  trains  have  a  right  to  presume 
that  men  of  experience  will  act  reasonably  in  all  given  contingen- 
oits.  They  are  not  bound  to  anticipate  and  provide  against  extra- 
ordinary, unusual,  and  improbable  conditions  which  involve  inat- 
tention on  the  part  of  others,  and  their  duty  to  persons  who  are 
thns  situate  only  begins  when  they  have  good  reason  to  suppose 
that  such  persons  are  unconsciously  in  peril,  or  disabled  from  avoid- 
ing it.  It  is  a  presumption  that  a  person  of  mature  age,  and  in 
the  possession  of  his  faculties,  will  exercise  care  for  his  own  safety, 
and  that  he  will  not  go  to  or  remain  in  a  perilous  position  when  a 
Blight  effort  would  carry  him  to  a  place  of  safety.  Accordingly,  a 
watchman  on  lookout  on  a  train,  moving  slowly,  with  bell  ringing, 
may  presume,  when  he  observes  a  man  walking  soberly  on  or  near 
the  track,  that  such  person  has  observed  the  train,  if  by  the  exer- 
cise of  care  he  could  have  observed  it.  He  may  therefore  reason- 
ably presume,  unless  something  indicates  the  contrary,  that  the 
person  on  the  track  will  step  aside,  so  as  to  avoid  any  injury. 
Railroad  Co.  v.  McClaren,  62  Ind.  568 ;  Railroad  Co,  v.  Miller,  26 


^d  by  Google 


144     OINCINNATI,  INDIANAPOLIS,  ETC.,  B.  CO.  V.  LONG. 

Midi.  279;  Railroad  Co.  v.  Manly,  68  111.  300;  Beach,  Cont 
Neg.  394;  Railroad  Co. «.  Graham,  95  Ind.  286;  s.  c,  13  Am.  & 
Eiig.  R.  R.  Chb.  77;  Telfer  v.  Railroad  Co.,  30  N.J.  Law,  188. 
Adding  to  tlie  foregoing  consideration b  the  reasonable  and  uncon- 
tradicted testimony  of  the  watchman  who  teettfied  that  the  de- 
ceased, when  about  10  feet  from  the  switch  standai-d  at  which  he 
was  struck,  looked  directly  at  the  appronching  train,  and  there  is 
absolutely  no  ground  upon  which  it  can  be  said  the  watchman  wae 
blamewoi-thy.  True,  tlie  ordinance  reqniied  that  a  watchman 
should  be  stationed  on  the  rear  end  of  each  backing  train,  but  this 
did  not  reqnire  that  tlie  watchman  so  stationed  siioiild  stop  the 
train  or  sound  a  trumpet,  whenever  he  saw  some  person  of  maturtt 
^e  who  might  possibly,  by  inattention,  come  in  its  way.  Espe- 
cially is  this  so,  when  the  watcliman  knew  that  the  pei'son  ahead 
could  see  the  approaching  train,  and  when  he  had  every  reason  to 
believe  that  encli  person  actually  did  see  the  train,  and  was  in  a 
situation  to  avoid  danger  by  the  exercise  of  bis  own  volition.  Pre- 
caution beyond  the  requirements  was  a  dnty  only  ia  case  there  was 
reasonable  ground  for  apprehension. 

Sometimes  railroad  companies  are  required  to  station  flag-iuea 
at  dangerous  crossings.  Tlic  duties  of  a  flag-man  are  in  some  re- 
spects analogous  Co  those  of  a  watchman,  under  the  or- 
^^^^riM-  ainance  in  Question.  In  Fakalinsky  v.  Railway  Co., 
■ui  AT  osoM-  gg  j^  Y_  ^24,  speaking  of  the  duties  of  a  flag-man  the 
court  said  :  "  The  duty  of  a  flag-man  is  to  notify  travel- 
lers of  the  approach  of  trains ;  and  when  the  traveller  knows  of  the 
approach  of  a  train,  and  sees  it  approaching,  as  to  him  the  flag-man 
owes  no  duty."  Assuming  that  the  nnimpeached  testimony  of  the 
watchman  was  trne,  and  a  diligent  examination  of  the  record  fails 
to  discover  any  evidence  or  circumstance  which  authorizes  us  to  dis- 
regard it,  and  there  is  nothing  in  the  case  which  justifies  an  impu- 
tation of  negligence  against  the  company,  or  shows  that  it  failed 
to  observe  the  ordinanco  of  the  city,  not  only  litei-aliy,  but  accord- 
ing to  its  spirit  and  purpose,  Randall  v.  Railroad  Co.,  109  U. 
S.  478  ;  s.  c,  15  Am.  &  Eiig.  B.  R.  Gas.  343. 

We  do  not  assent  to  the  view  that  an  experienced  switchman, 
acquainted  with  the  perils  attending  the  performance  of  his  dnty, 
at  a  particular  locality,  is,  because  of  the  nature  of  his 
SfSS^r^  employment,  exempt  from  the  obligation  of  exercising 
umlacu&  "  the  same  degree  of  vigilance  for  his  own  safety,  in  re- 
spect to  tlie  trains  of  other  railroad  companies,  as 
would  be  required  of  a  traveller  or  other  person  rightfully  at  the 
same  place.  The  rule  has  become  so  familiar  that  a  reference  to 
the  authorities  is  unnecessary,  that  a  person  who  goes,  or  is  about 
to  go,  upon  a  railroad  track,  even  at  a  place  where  he  has  a  right 
to  be,  must  use  the  means  reasonably  available  to  him  in  order  to 


^d  by  Google 


MASTER  AND  SERVANT — BACKING   TRAIN — MEGLIGBNOB.    liS 

avoid  injnry  from  moving  trains.  Persons  who  snffer  injnrj  whilu 
disregarding  this  rule  are  witiiout  remedy,  and  those  wlio  had  the 
opportnnity  of  knowing  the  peril,  mnst  be  assiimed  to  Itave  Iiad 
the  knowledge  which  tlieir  opportunities  afforded  them.  Pcnuii. 
Co.  V.  Henderson,  43  Pa.  St.  449  ;  Pattei-soo,  'Ry.  Accident  Law, 
50. 

It  wonld  be  manifestly  unreasonable  to  apply  one  rnle  to  travel- 
lers and  others,  lawfully  on  the  tracks  of  the  Union  R.  Co.,  and  a 
different  rule  to  the  employees  of  the  several  companies, 
vrheri  both  were  anbetantially  surrounded  by  tlie  same  Smi'mSi  "5r 
circnmstances.  Of  coui-se,  in  case  an  employee  or  any  SJ^'^.S..." 
other  person  is  actnully  absorbed  in  duties  upon  the 
tracks,  which  necessarily  divert  his  attention,  and  prevent  liim 
from  observing  what  he  might  have  seen  under  other  circum- 
stances, and  the  fact  is  known  to  thecompany  charged  with  the  de- 
fault, a  different  question  is  presented.  "  If  a  very  high  degree  of 
care  is  required  of  strangers  coming  upon  the  railroad  track,  to 
avoid  injury,  as  much  or  more  should  be  demanded  of  one  who  is 
familiar  with  the  place,  and  who  cannot  but  know  it  is  pregnant 
with  danger.  Neither  can  go  recklessly  upon  the  track,  taking  no 
proper  precaution  to  avoid  .accidents."  Railway  Co,  v.  Sweeney, 
52  111.  325 ;  Railroad  Co.  v.  Butler,  103  Ind  31;  s.  c,  23  Am.  '& 
Eng.  R:  R.  Gas.  262;  Sciiofield  v.  Railroad  Co.,  114  U.  S.  615; 
B.  c.  19  Am.  &  Eng.  R.  R.  Cas.  353  ;  Holland  v.  Railroad  Co.,  5 
McCi'ary,  549.  How  can  it  be  said,  in  tUe  absence  of  any  special 
circumstances,  that  an  experienced  switchman,  who  was  proceeding, 
BO  far  as  appears,  with  his  usual  and  cuetomarv  duties,  between 
two  tracks,  where  the  observance  of  care  would  nave  enabled  him 
to  perform  those  duties  in  safety,  was  absorbed  in  his  duty  to  a 
greater  extent  thao  would  be  a  person  driving  his  team  across  a 
railroad  track? 

It  was  not  shown  that  there  was  anything  peculiar  about  the 
switch,  or  that  it  was  different  from  those  in  common  use,  or  that 
there  was  any  emergency  calculated  to  divert  the  attention,  or 
create  confusion  in  the  mind,  of  the  deceased,  nor  did 
it  appear  that  he  was  thrown  off  his  guard  by  any  act  • 
or  omission  of  the  appellant.  It  does  not  appear  that 
the  switcli  standard  cuuld  iiave  been  safely  approached  upon  the 
space  between  the  tracks,  nor  that  it  could  not  have  been  efficiently 
operated  standing  within  the  space  clear  of  all  danger  from  con- 
tact wiili  the  cars  on  the  adjacent  track.  To  hold  Chat  the  deceased 
was  without  fault,  would  require  ns  to  assume  that  he  was  com- 
pelled, in  the  discharge  of  his  duty,  to  go  upon  the  track,  or  to 
occupy  a  position  where  a  moving  train  would  come  in  contact 
with  Ijis  Ifudy,  and  that  be  might  do  this  without  taking  precau- 
tions, readily  available  to  him  for  bis  own  safety.  We  have  been 
SI  A.  &  E.  R  Cas.— 10 


^d  by  Google 


146      CINCINNATI,  INDIANAPOLIS,  ETC.,  R.  CO.  V.  LONG. 

aoable  to  discover  any  evidence  from  wliicli  it  appears  that  a  per- 
son operating  the  switdi  in  question,  exercising  ordinary  care, 
wonid  neceeearily  be  exposed  to  dan£;er  of  contact  with  the  cars, 
nor  can  we  assent  to  the  proposition  tiiat  a  switchman  may,  under 
eiich  circnstances,  expose  himself  witliont  looking,  and  yet  be  free 
from  fanlt.  It  is  for  those  who  enter  into  employments  of  a  dan- 
gerous eharaeter,  or  wlio  work  at  dangerous  places,  to  exercise  all 
that  eare  and  caution  which  the  nature  of  the  employment,  or  the 
situation  in  which  they  are  employed,  demands.  Tnttle  v.  Rail- 
way, 122  0.  S.  189;  Bieanahan  v.  B.  Co.,  8  Am.  &  Eng.  R.  R. Cas. 
147,  49  Mich.  410,  797. 

Our  conclusion  is,  tiiat  the  facte  do  not  make  a  case  of  negligence 
against  the  railroad  company.  Besides,  the  legitimate  inference 
that  the  deceased  could  only  have  suffered  injury  from  want  of  at- 
tention  to  the  danger  of  the  situation  is  not  rebutted  or  explained 
in  the  evidence.  As  is  said  by  a  learned  author,  one  thus  employed 
"must  not  wait  to  be  told,  but  must  act  afiirmatiTely.  He  must 
not  go  blindly  and  heedlessly  aljout  liis  work  when  there  ia  danger,'* 
Beach,  Cont.  Neg.  §  138.  While  it  cannot  be  said  that  the  special 
findings  are  so  clearly  inconsistent  with  the  general  verdict  as  to 
justify  a  judgment  notwithstanding  the  general  verdict,  we  are  of 
opinion  that  tlie  court  erred  in  not  sustaining  the  appellant's  motion 
for  a  new  tnal  on  the  ground  that  the  evidence  does  not  sustain 
the  verdict.  These  conclusions  render  it  unnecessary  that  we 
should  consider  and  decide  some  incidental  queations  which  arise 
on  the  record.     Judgment  reversed,  with  costs. 

Elliott,  J.— I  concur  in  the  conclusion  that  there  was  no  neg- 
ligence on  the  part  of  the  appellant,  bat  dissent  from  the  oon- 
clnsioii  that  the  appellee's  intestate  was  guilty  of  contributory 
negligence. 

PersoDB  in  charge  of  train  leeing  adult  od  track  are  entitled  to  preBume 
that  be  will  leave  before  he  is  ruD  over.  See  Terre  Haute  &  L  R.  Co.  e. 
Orahara,  13  Am.  &  Eng,  R.  R.  Gag.  77;  note  to  3  Am.  &  Eng.  R.  R.  Cae. 
124-128 ;  H.  &  T.  C.  tt.  Co.  o.  SjmpkiiiB,  4  Am.  &  Eng.  B.  B.  Cas.  11,  and 
note. 


^d  by  Google 


UASTEB  AND   BGBVANT — INOUMFETEKOT . 


Texas  asd  Nxw  Oklbaits  B.  Oo. 

V. 

(Adponee  Out,  Teaat.    Jltnuory  18,  1887.) 

Where  an  engineer,  before  he  entered  the  employ  of  a  railroftd  cotDpao;  in 
that  capacitj,  had  been  a  flreman  on  other  roaaa,  and  had  been  a  fireman  in 
defendabt's  employ  a  year  before  he  vas  made  eofrineer,  and  had  always  had 
a  good  reputation  as  to  his  knowledge  of  the  work,  and  the  peTformance  of 
his  dnty,  the  railroad  company  cannot  he  held  guilty  of  negligence  in  select- 
ing and  emnlojiog  him,  and  is  not  liable  for  the  death  of  a  bra' 
by  the  careleasneBB  of  said  e: 


ing  and  employing  him,  and  is  not  liable  for  the  death  of  a  brakeman  caused 

^y  the  careleasneBB  of  said  engineer. 

Under  Texas  HeT.  St.,  Art.  2904.  any  one  of  the  parties  entitled  to  damages 
'    may  bring  an  action   for  tlie  benefit  of  all,  and  in  an  action  by  a  wife  to  re< 
ooTer  damaceB  for  the  death    of   her  husband  it  ia  not  error  to  render  judg- 
ment for  the  benefit  of  the  wife  and  her  minor  child  where  the  petition 
alleges  that  the  husband  left  a  child  and  claims  damages  on  its  part  also. 

Appeal  from  district  court,  Orange  connty.  W.  H.  Fokd,  judge, 
B.  P.  Sill  for  appellant. 
John  T.  Stark  for  appellee. 

Gaines,  J. — Tiiia  suit  was  broaglit  by  appellee  to  recover  of  ap- 
pellant, Dnder  the  provisions  of  title  52  of  tiie  Hevieed  Statutes, 
damages  for  an  injury  resulting  in  tiie  death  of  her  husband.  It 
is  alleged,  in  substance,  thnt  tlie  injury  was  caused  by  vum. 

the  carelessness  of  an  engineer,  one  Sunburg;  that  he  was  negli- 
gent and  incompetent;  and  tiiat  appellant's  ollicers  and  agents  did 
not  exercise  due  care  in  selecting  and  employing  him  as  engineer. 

According  to  the  provisions  of  the  title  cited,  the  widow  and 
other  beneficiaries  can  only  recover  when  the  injury  is  "of  such  a 
cliaractcr  as  would,  if  deatli  h;id  not  ensned,  have  entitled  the 
party  injured  to  maintain  an  action  for  such  injury."  Rev.  St.  art, 
2900.  The  evidence  shows  that  at  tlie  time  the  accident  occurred, 
which  resulted  iii  the  death  of  the  husband,  he  was  employed  as  a 
brakeman  by  the  railroad  company,  and  was  engaged  in  the  per- 
formance of  his  duties  as  such.  It  follows  that  tlie  appellee  can- 
Dot  be  permitted  to  recover  on  account  of  the  negligence  of  the 
engineer,  the  fellow-servant  of  the  deceased,  unlees  a  want  of  due 
care  on  the  part  of  the  company  in  employing  him  be  shown  by 
tlie  evidence. 

There  was  some  evidence  addaced  on  the  trial  tending  to  show 


^d  by  Google 


148  TEXAS  AND   NEW  ORLEANS  B.  00.  V.  BEBBT. 

that  the  engineer  was  either  reckless  or  nnskiMful  on  this  particn- 
lar  occasion,  and  that  hte  conduct  caused  tlie  accident.  This,  how- 
ever, is  very  meagre  and  eomewliat  unsatisfactory.  It  was  also 
fonnd  that,  on  the  same  day  or  the  day  before,  the  outside  case  of 
tlie  steam-cliest  of  an  engine  he  wns  rnnning  was  blojrn  out; 
bnt  the  evidence  does  not  disclose  whose  faalt  this  was.  On  be- 
half of  defendant  D,  C,  Smitli  testified  that  he  was  the  meeter 
mechanic  of  tiie  defendant  company,  and  iiad  been  for  some  time 
before  the  accident  occurred ;  tliat  it  was  his  business  to  employ 
the  engineers;  tliat  the  nsaal  way  for  an  employee  to  fit  himself 
for  the  buGineas  of  running  an  engine  was  to  serve  as  fireman 
about  two  years,  by  wiiicli  time  they  gained  sufficient  experience 
to  take  chiirge  of  an  engine  by  observing  the  engineer  in  the 
performance  of  his  duties,  and  taking  liis  place  when  temporarily 
absent;  that  Sunbtirg  was  employed  by  him  as  fireman  in  Octo- 
ber or  November,  1880,  and  that  be  understood  tliat  he  had  been 
an  old  fireman,  and  that  he  took  hold  of  his  work  as  if  he  nnder- 
stood  it;  tliat  he  promoted  him  to  tlic  position  of  engineer  about 
December  1,  1881 ;  thnt  be  bad  rnn  a  switch  engine  in  Honeton^ 
and  he  found  no  fadlt  with  him  tliere;  that,  wlien  any  accident 
occurred  through  the  caretessness  of  an  employee,  it  was  the  dnty 
of  the  foreman  at  the  place  to  telegraph  it  to  him,  but  that  Sun- 
burg  was  never  so  reported  ;  that  he  remembered  that  lie  had  been 
at  the  Orange  yard  but  a  short  time  when  the  accident  liappened^ 
and  that  he  recalled  him  to  Houston  a  sJiort  time  after,  on  acconnt 
of  his  having  got  into  a  quarrel  with  one  of  bis  coemployees,  Tiie 
accident  occurred  December  19,  1881.  Tiiis  is  tlie  substance  of 
the  whole  testimony  upon  tlie  subject  of  the  cai-e  exei'CJsed  in  the 
Belection  of  Sunburg  as  engineer.  From  this  it  appears  that  when 
he  was  sent  to  take  charge  of  the  switch  engine  at  Orange  tbe  mas- 
ter mechanic,  whose  dnty  it  was  to  select  these  em- 
S^uoOT^  ""S  ployees,  had  reason  to  think  that  he  had  served  as  fire- 
onStt™"  "'  """'  'he  usual  period  to  fit  him  for  the  position  of  en- 
gineer; that  he  bad  served  for  some  time  as  engineer, 
and  that  no  fault  had  been  found  with  him.  We  tliink  that  the 
evidence  upon  the  question  of  tbe  negligence  of  the  company  in 
employing  Sunburg  as  engineer  does  not  warrant  the  verdict  of 
tlie  jury,  and  that  the  court  below  erred  in  not  setting  aside  the  ver- 
dict iuid  granting  a  new  trial. 

Tlie  assignment  to  the  effect  that  the  judgment  is  erroneous  be- 
cause it  is  rendered  for  the  benefit  of  appellee  and  her 
iSS^  "?  n'i'ior  child,  Benlah  C.  Berry,  is  not  well  taken.  Tiie 
Joimo™™!  statute  expressly  provides  that  any  one  of  the  parties 
entitled  to  damages  in  such  case  may  bring  the  action 
for  the  benefit  of  all.  Rev,  St.  art,  290i.  Appellee  instituted 
the  anit  as  the  sole  plaintifE,  without  saying  in  so  many  words  that 


^dbyGoOglc 


MASTER  AND   aERVANT — COUPLING  OARS.  149 

alie  sued  for  tlie  benefit  both  of  herself  and  her  minor  child  ;  bnt 
in  the  bod;  of  Iter  petition  she  alleges  that  her  deceased  hnsbnnd 
left  an  only  child,  named  Beiilah  C.  Berry,  who  wae  the  child  also 
of  appellee,  alleges  damages  to  both  from  the  death  of  the  hus- 
band and  father,  and  pravs  for  jud^gment  for  their  damages,  and 
in  the  supplemental  petition  also  prays  tliat  the  jury  apportion  the 
damages  betwecti  them.  We  tlniik  this  substantially  good,  and 
timt,  if  there  be  any  defect,  it  is  ench  as  onght  to  have  l>een  taken 
advantage  of  by  special  exception,  specifically  pointing  it  out. 

Evidence  of  the  declaration  of  the  deceased,  made  after  he  vras 
removed  from  the  place  of  the  accident  to  his  house,  was  admitted 
as  a  part  of  the  rex  gesUs  over  the  obiection  of  defendant,  and  an 
exception  taken,  which  appears  in  the  statement  of  facts.  Tlie 
ruling  of  the  court  not  having  been  aseigued  as  error  we  do  not 
deem  it  proper  to  consider  the  qnestion, 

Because  tlie  verdict  of  the  jnry  is  not  supported  by  the  evidence, 
the  judgment  is  reversed  and -the  cause  remanded. 

Employment  and  Retention  by  Company  of  Incompetent  or  Inexperienced 
Servantt.  See  Alexander  v.  Louisville  &  N.  R.  Co.,  25  Am.  <&  Bng.  R.  S. 
Cos.  45S;  U.  5.  Rolliag-Btock  Co.  d.  Wilder,  25  lb.  114;  Dallas  e.  Oulf,  etc., 
R  Co..  21  lb.  575;  Wabwh  R.  Co.  v.  McDaniels,  11  lb.  1B8;  Teins,  etc.,  R 
■Co.  o.  Whitmore,  11  lb.  195;  Atchison,  etc.,  B.  Co.  c.  Moore,  11  lb.  248; 
Bansiere.  Hinoesota,  etc.,  K  Co.,  II  lb.  647;  Hbdd  e.  Delaware  &  H.  C, 
Co.,  13  lb.  199;  East  Tenn.  etc.,  R.  Co.  i.  Gurley,  17  lb.  669;  Mares  •. 
Northern  Pac.  R.  Co.,  17  lb.  620;  Chicago,  etc.,  R.  Co.  u.  Hujfman,  17  lb. 
625;  Hiliao.  Chicago,  etc.,  R,  Co.,  17  lb.  638;  Corgon  e.  Maine  Cent.  R.  Co., 
17  lb.  634;  Kersey  v.  Kansas  City,  etc.,  R.  Co.,  17  lb.  638;  Murphy  o.  8t. 
Louis,  etc.,  R.  Co..  2  lb.  88;  Smith  *.  Potter,  2  lb.  140;  Mich.  Cent.  K.  Co. 
•.Gilbert,  2  lb.  630;  Ross  c  Chicago,  etc.,  R.  Co.,  2  lb.  640;  Little  Rock, 
«tc.,  R.  Co.  e.  Duffey,  4  lb.  637;  Ohio,  etc.,  R.  Co.  v.  Collarn,  S  lb.  664; 
Harvey  e.  N.Y.  Cent.  R.  Co.,  8  lb.  616;  Houston,  etc.,  R.  Co.  t>.  Myers,  8 
lb.  114;  Beema  «.  Cliic^o,  etc,  R.  Co.,  10  lb.  668. 


FKKiraTi.yAiiu.  Co. 


"Whttoomb,  Adm'r. 

(Advance  Gate,  Indiana,    Junt  14,  1887.) 

The  defenduit  company  nve  the  following  notice  to  its  employees: 
'•'Coupling  cars  by  band  is  i^DgerouB  and  unoeceaeary.  This  work  c«n  be 
•a  effectually  done  by  the  use  of  a  coupling-stick,  wbicb  will  be  supplied  to 
employees  by  ;raTdmasterB  at  .  .  .  From  this  date  the  company  will  not 
aasume  any  liability  or  pay  any  espenaes  incurred  by  employee!  on  account 


^d  by  Google 


IPO  PENNSTtVAHIA  CO.   V.  WHITCOMB. 

of  iDJnriea  received  in  coupling  cars."  In  an  action  for  damages  by  the  ad- 
ministrator of  an  employee  who  was  killed  while  coupling  can  by  band, 
Sdd,  that  the  receipt  of  this  notice,  and  the  emplojee's  cuutinuiince  in  the 
service  of  the  company  made  its  terms  part  oF  the  contract  of  employment, 
and  a  breach  of  duty  by  the  employee  to  undertake  to  couple  cars  by  hand; 
and  the  only  obligation  resting  on  the  railroad  company  was  that  of  provid- 
ing cars  that  might  safely  be  coupled  by  the  use  of  a  coupling-stick. 

Appeal  b;  defendant  from  a  judgment  of  the  Shelby  circnit 
court  in  favor  of  plaJntiflE  in  an  actiou  for  personal  injury.  Re- 
versed. 

Tlie  facte  bts  stated  in  the  opinion. 

S.  Siansifer  for  appellant, 

Thomas  B.  AdamSy  Louie  T.  JUichmer  and  <?.  M.  Wright  for 
appellee. 

Elliott,  J. — Millard  Spnrlin  was  in  the  service  of  the  appellant 
as  a  brakeman,  and  wae  Itilled  while  engaged  in  the  line  of  his 
dntv,  in  coupling  cars.  The  complaint  of  the  appellee,  who  sues 
as  tne  administrator  of  Spurlin,  alleges,  among  other  things,  that 
Ficra.  "the  defendant  carelessly,  negligently,  and  contrary  to 

its  duty,  had  in  its  use  and  control  on  said  railway  at  Lewis  Creek 
Station,  Shelby  connty,  Indiana,  two  freight  cars  which  were  un- 
safe and  unsuitable  in  their  construction  in  the  planner  following, 
to  wit :  that  through  the  heavy  beam  across  one  of  said  cars  there 
projected  a  large  iron  rod  for  the  distance  of,  to  wit,  four  inches 
beyond  said  beam,  and  about,  to  wit,  two  feet  from  the  drawbar  on 
said  beam ;  and  that  on  the  other  of  said  cars  there  projected  a 
large  cast-iron  stirrup  or  posteocket,  for  the  distance  of,  to  wit, 
six  inches,  from  the  heavy  beam  across  the  end  of  said  car,  the 
stirrup  or  socket  being  bolted  to  said  beam  about,  to  wit,  two  feet 
from  tlie  drawbar  thereon ;  aud  that  said  cars  were  so  unsafely  and 
insecurely  constructed  that,  when  they  were  being  coupled  to- 
gether the  said  iron  bolt  and  said  iron  stirrup  or  socket  were 
almost  opposite  each  other,  and  with  no  more  of  space  between 
them  than,  to  wit,  three  inches.  And  the  plaintiff  says  that,  iu  or- 
der to  couple  said  cars  together,  it  was  necessary  for  the  brakeman 
performing  said  duty  to  go  between  said  car,  in  which  was  said 
iron  bolt,  and  the  other  car,  and  insert  the  link  and  bolt  at  their 
proper  places  iu  the  drawbars ;  he  necessarily  standing  at  the  time 
at  such  distance  from  the  deadwoods  aforesaid  as  to  be  between 
said  bolt  and  said  stirrup  or  socket  on  the  other  car.  And  the 
plaintiff  says  that  on  the  day  and  at  said  station,  while  the  freight 
train  on  wnich  the  said  decedent  was  employed  was  engaged  in 
switching  and  moving  and  shifting  freight  cars,  the  said  decedent, 
in  the  performance  of  his  duty,  went  between  the  two  cars  above 
described,  to  couple  them  together,  one  of  said  care  standing  still. 


^dbyGooglc 


MASTEE  AND  9ERVANT — COUPLING   CARS.  161 

while  the  other  was  beiog  pnabed  along  the  track  b;  the  engine 
toward  the  firBt-named  car,  the  decedent  neceeearilj  standing,  at 
the  time,  at  Buch  a  dist-ance  from  the  deadwoods  aforesaid  as  to  be 
between  said  bolt  and  the  said  Btirrnp  or  socket  on  the  other  car ; 
that  while  so  standing  there,  en^ged  in  coupling  said  cars  to- 

f  ether,  the  said  cars  were  pashed  together  bj  said  engine,  and  the 
ecedent  was  canght  between  said  bolt  and  Raid  stirrup  or  socket, 
and  his  body  was  so  crashed,  pressed,  and  inj'^ired  thereby  that  be 
died  in  said  county,  in  fifteen  minnteB  thereafter,  as  the  result  of 
eaid  injnries  occasioned  as  aforesaid  j  and  that  if  said  cars  had  been 
safely,  suitably,  and  properly  constructed,  said  injuries  and  death 
would  not  have  occurred.  The  plaintiff  also  says  that  said  ininries 
were  received  without  any  fanit  or  negligence  on  the  part  of  said 
decedent." 

The  appellant  answered  in  several  paragraphs,  bnt  we  regard 
the  controlling  qiieetion  the>sanne  upon  all  of  these  paragraphs,  for 
the  snfSciency  of  all  of  them  depends  upon  what  is  alleged  to  be  a 
contract  entered  into  between  appellant  and  the  appellee's  intestate. 

Tiiat  contract  is  averred  to  be  evidenced  by  a  circular  issued  by 
the  appellant  and  assented  to  by  the  intestate.  Omitting  imma- 
terial and  formal  parts,  the  circular  and  the  alleged  agreement  of 
the  decedent  read  as  follows: 

"Coupling  cars  by  hand  is  dangerous  and  unnecessary.  This 
work  can  be  as  effectually  done  by  the  use  of  a  coupling-stick, 
which  will  be  supplied  to  employees  by  yardmasters  at  Louisville, 
Jefferson vi He,  Columbus,  MHdisoii,  and  Indianapolis.  From  this 
date  the  company  will  not  assume  any  liability  or  pay  any  expenses 
incurred  by  employees  on  account  of  injuries  received  in  coupling 
cars.  E.  AV.  McKekna,  Superintendent." 

"  I  hereby  acknowledge  the  receipt  of  a  copy  of  the  above 
circniar,  M.  Spoklin." 

It  is  averred  in  the  answer  that  during  all  the  time  that  Spuriin 
was  in  the  appellant's  service  a  full  supply  of  coupling-sticks  was 
kept  with  the  vardmasters  at  Lonisville,  Jeffersonville,  Oolumbus, 
'Madison,  and  Indianapolis;  "and  that  the  said  Millard  Spurlin, 
although  he  might  and  could  readily  have  supplied  himself  with  one 
of  the  said  conpling-sticks,  at  any  one  of  said  places,  or  from  the 
caboose  of  said  train,  where  there  was  a  supply  and  of  which  he  had 
knowledge,  failed  to  do  so,  and  attempted  to  and  made  said  coup- 
ling, whereby  he  was  injured,  as  complained  of,  by  hand.  It  is 
denied  that  decedent  was  in  any  manner  obligated,  or  that  it  was 
his  duty  to  make  said  coupling  other  than  by  tlie  use  of  a  conpline- 
stick,  and  it  is  aven-ed  that  had  he  nsed  one  of  said  conpling-stie& 
it  would  not  have  been  necessai'y  for  him  to  go  or  stand  between 
said  bolt  and  said  stirmp  or  socket." 


^d  by  Google 


152  PENNSYLVANIA   OO.  V.  WHITCOMB. 

It  ia  andonbtedlj  the  duty  of  the  employer  to  provide  the  em- 
ployee with  a  SHfe  working  place,  and  with  safe  machinery  and 
ebplotx*-*,  appliances.  The  employer  ia  not  bound  to  exercise 
!S?  un'ir^  tl'6  highest  degree  of  skill  and  care  in  discharging 
"■■"""^  this  duty,  bnt  iie  is  required  to  exercise  ordinary  care 

and  skill.  Knieger  v.  Louisville,  etc.,  Co.,  9  West.  Rep.  247; 
Bradbury  v.  Goodwin,  108  Ind.  286;  PittsburEcli,  C.  &  St.  L.  R 
Co.  V.  Adams,  105  Ind.  151 ;  s.  c.,  23  Am.  &  Eng.  R.  R.  Cap.  408 ; 
rtaltimore,  O.  &  C.  It.  Co.  v.  Rowan,  104  Ind.  88;  s.  c,  23  Am. 
&  Eug.  R.  E.  Cas.  390 ;  Indiana  Car  Co.  v.  Parker,  100  Ind.  181, 
and  cases  cited. 

This  duty  is  one  which  the  law  enjoins  upoa  the  master,  and  it 
is  one  wliicli  cannot  be  so  delegat«d  as  to  relieve  liim  front  I'eepon- 
sibility.  The  agent  to  whom  it  is  entrusted,  whatever  his  rank 
may  be,  acta  as  the  master  in  discharging  it.     He  is  in  the  maBtev'B 

glace.  Krueger  v.  Louisville,  etc.  Co.,  and  Indiana  Car  Co.  v. 
arker,  supra,  and  cases  cited;  Northern  Pacific  R.  Co.  v.  Her- 
bert, 116  U.  S.  642;  s.  c,  24  Am.  &  Eng.  R.  R.  Cas.  407 ;  s.  c, 
33  Alb.  L.  J.  288.  In  the  ease  last  cited  the  authorities  are  re- 
viewed, and  the  court  said :  "  This  duty  he  cannot  delegate  to  a 
servant  so  as  to  exempt  himself  from  liability  for  injuries  caused 
to  anotlier  aervant  by  its  omission.  Indeed,  no  duty  requii'ed  of 
him  for  the  safety  and  protection  of  his  servants  tan  be  trana-  ' 
ferred  so  as  to  exonerate  liim  from  such  liability." 

These  principles  so  confidently  relied  upon  by  tlie  appellee,  by  no 
means  solve  the  questions  presented  by  these  answers, 
nuus  uaii  o»  DuticB  Test  upou  the  emploj-ee  as  well  aa  upon  tlie  em- 
ployer. Obligations  are  imposed  upon  the  one  by  law 
as  well  as  upon  the  other.  One  of  these  obligations  imposed  upon 
those  who  enter  another's  employment  is  that  lie  shall  assume  tlie 
risks  and  dangers  incident  to  that  employment,  which  are  known 
to  bim,  or  which  by  the  exercise  of  reasonable  care  he  might  have 
kuowu.  No  one  is  bound  to  remain  in  a  service  which  lie  is  in- 
formed is  dangerous;  and  if  an  employee  does  voluntarily  con- 
tinue in  the  master's  service  after  notice  of  its  dangers,  he  asenmes 
all  risks  arising  from  the  known  dangers.  Umback  v.  Lake  Shore 
&  M.  S.  R.  Co.  83  Ind.  191 ;  s.  c,  8  Am.  &  Eng.  R.  R.  Cas.  898 ; 
Louisville  &  Nashville  R.  Co.  v.  Orr,  84  Ind.  50 ;  s.  c,  8  Am.  & 
Eng.  R.  R.  Cas.  94;  Bradbury  v.  Goodwin,  supra;  Lake  Shoie  & 
M.  8.  R.  Co.  V.  Stnpak,  28  Am.  &  Eng.  R.  R.  Cas.  323  ;  Indiana, 
B.  &  W.  R.  Co.  V.  Dailey,  8  West.  Rep.  516 ;  Halt  v.  Nay,  4  New 
Eng.  Rep.  173.  The  risKs  which  the  employee  assumes  are,'how- 
ever,  sacli  as  are  incident  to  his  service,  and  such  as  arise  in  cases 
where  ordinarily  safe  machinery  and  appliances  are  provided.  If 
machinery  of  an  unusual  and  more dangerous.character  is  provided, 
and  the  employee  has  no  notice  of  the  danger,  then  he  does  not  as- 


^d  by  Google 


MASTER  AND  SERVAITr — COUPLING  CAES.  153 

8urae  tlie  risk  attendant  upon  its  nse.  Baltimore,  O.  &  C.  R.  Co.  v. 
Sowaii,  supra.  If  tlie  deceased  continnee  in  the  master's  service 
after  tlie  danger  of  coupling  care  was  made  known  to  liim  as  inci- 
dental to  liis  service,  lie  volnutat'ily  assnmed  tlie  risk,  and  it  is  very 
doabtfal  wlietiier  tlie  couiplaint  is  good.  TIjis  we  say  because  it 
does  uot  aver  that  the  ciire  were- not  ordinary  ones,  and  the  danger 
from  conpling  them  anniiusual  one.  BnCas  no  assault  is  made  upon 
the  complaint,  we  do  not  pass  upon  its  snfficiencj.  It  is  necessary, 
however,  to  speak  of  the  character  of  tiie  complaint ;  for  tlie  ques- 
tion is  whetiier  tlie  answer  is  good  to  the  complaint  us  drawn,  and 
not  whetiier  it  wonid  be  good  in  any  case.  It  is  difficnlt,  wc  iiiaj 
further  add,  to  perceive  how  this  action  can  be  maintained  without 
showing  that  the  danger  was  not  incident  to  the  service,  or  the  cars 
of  an  nnueual  kind ;  bat  on  this  phase  of  the  subject  we  express 
no  direct  opinion. 

The  circular  warns  the  employees  that  the  conpling  of  all  cars 
by  hand  is  dangerous.  Its  warning  is  not  confined  to  _,^ 
cars  of  a  particular  class,  but  it  extends  to  all  kinds  obet  umsDc- 
and  all  classes.  Kor  is  it'  simply  a  warning  notice. 
It  18  much  more.  It  is  a  warning  and  a  direction.  It  instructs 
all  employees  to  couple  all  cars  with  a  coupling-stick,  and  for- 
bids the  coupling  by  hand.  This  is  its  legal  meaning  and  effect. 
By  clear  and  necessary  implication  it  forbids  the  coupling  of 
«ars  by  hand,  and  commands  that  it  be  always  done  by  the  in. 
vtruments  provided  for  that  purpose.  We  very  much  doubt 
whetiier  an  employee  who  remains  in  service  after  such  a  warning, 
and  who  disobeys  the  instructions  received  from  his  employer,  can 
recover  without,  at  least,  affirmatively  showing  that  obedience 
woald  Lave  caused  greater  danger  than  disobedience,  or  that  obedi- 
ence was  not  practicable  under  the  circumstances  of  the  particular 
case,  Buzzelt  v.  Laconia  Mfg.  Co.,  48  Me.  113 ;  Frazier  v.  Penn- 
sylvania R.  Co..  38  Pa.  104;  Mad  River,  etc.,  R.  Co.  v.  Barber,  6 
Ohio  St.  541 ;  Senior  v.  Ward,  1  El.  &  El.  385. 

It  is  ditUcnlt  to  conceive  any  principle  upon  which  an  employer 
can  be  held  liable  to  an  employee  who  disobeys  iiiBtmctions  with< 
ont  cause  or  excuse.  Analogous  cases  seem  to  declare  against  the 
right  of  recovery ;  for,  to  mention  one  of  many,  even  a  passenger 
wlio  violated  without  excuse  tiie  rules  of  a  carrier  cannot  maintain 
an  action.  We  ai-e  strongly  inclined  to  the  opinion  tliat  where 
tliei^  is  a  disobedience  of  instructions  there  can  be  no  recovery  by 
the  employee  unless  he  sliows  that  obedience  would  have  aug- 
mented the  danger,  or  that  it  would  have  been  impracticable.  But 
we  need  not  decide  this  question,  for  the  answers  carry  us  beyond 
it.  While  it  is  not  necessary  to  decide  the  questions  we  have  just 
adverted  to,  it  is  nevertheless  proper  to  speak  of  them,  since  wiiat 
we  have  said  is  logically  connected  with  what  follows  upon  the  ral- 
iDg  question  in  the  case. 


^d  by  Google 


154  PENNSYLVANIA   CO.  V,  WHITOOMB. 

We  regard  the  circular  and  tlie  acts  performed  tinder  it  ae  con- 
stituting it  a  contract.  By  formally  acKnowled^ing  tbe  receipt  of 
^^  the  eirenlar,  and  continuing  in  the  service  of  the  eora- 

^"0™™"*  pany,  the  decedent  made  ita  terms  part  of  the  contnet 
commtrTB  with  liis  employer.  It  was  in  the  nature  of  a  state- 
ment to  iiiin  of  the  terms  npon  which  the  company 
wonld  continue  Iiiin  in  its  service.  It  asBcrts — if  not  in  expreu 
terms,  by  clear  implication — that  care  must  not  be  coupled  by  hand; 
that  tiiey  mnet  be  conpled  by  the  use  of  tlie  apphances  provided; 
and  that  if  they  are  coupled  by  hand  the  company  will  not  be 
liable  for  injuries  received  by  its  employees.  These  are  the  terms 
of  the  contnict  of  hiring.  There  are  many  cases  in  the  books 
holding  that  the  rules  adopted  by  the  emploj'er  and  made  known 
to  the  employee  enter  into  and  fonn  part  of  the  contract.  Payne 
V.  Western  &  A.  R.  Co.,  13  Lea  (Tenn.),  507;  s.  c,  49  Am.  Rep. 
666 ;  8.  c,  18  Am.  &  Eng.  R  II.  Cas.  1 19 ;  Carew  ti.  Rntlierford, 
106  Mass.  1 ;  Hey  wood  v.  Tillson,  75  Me.  225 ;  s.  c,  46  Am.  Kep. 
373 ;  Collins  v.  New  England  Iron  Ca,  115  Mass.  23 ;  Bradley  v. 
Salmon  Falls  Mfg.  Co.,  30  N.  H.  487.  It  is,  indeed,  not  simply 
the  right  of  the  employer  to  adopt  proper  rnles,  but  it  is  his  dntr 
to  do  so.  Abel  v.  Delaware  &  H.  Canal  Co.,  28  Am.  &  Eng.  K, 
R.  Cas.  497  ;  Vose  v.  Lancashire  R.,  2  Hnrlst.  &  K".  728 ;  Hiiynee 
V.  East  Tenn.  R.,  3  Cold.  222.  Even  in  the  case  of  a  passenger 
the  rule  is  that  the  rcgnlations  of  the  carrier  enter — to  some  extent, 
at  least, — into  the  contract  of  the  parties.  Cliicago,  St.  L.  &  P.  E. 
Co.  V.  Biile,  104  Ind.  13 ;  Western  Union  Tel.  Co.  v.  Harding.  103 
Irid.  505,  511 ;  Ohio  &  M.  R.  Co.  ij.  Applewhite,  52  Ind.  540; 
Pittsbnrgh,  C.  &  St.  L.  R.  Co.  v.  Niizum,  50  lud.  141;  s.  c,  19 
Am.  Rep.  703. 

It  is  obvious  that  a  business  reqniring  the  employment  of  many 
pei'sons  could  not  be  properly  conducted  without  a  svstem  of  rules, 
and  it  is  equally  clear  that  the  rules  would  be  of  little  force  unless 
tJiey  formed  a  part  of  the  contract  between  the  employer  and  em- 
ployee. If  they  did  not  constitute  an  element  of  the  contract, 
they  would  protect  neither  the  master  nor  the  servant,  and,  unless 
the  master  may  prescribe  rules  and  exact  obedience  to  tlieni,  he 
cannot  control  his  own  business.  It  seems  quite  clear,  on  princi- 
ple, that  the  employer  may  adopt  reasonable  rules,  and  that,  when 
brought  to  the  knowledge  of  the  employee,  they  constitute  an 
element  of  tlie  contract. 

The  decided  cases  recognize  this  general  rule,  although  there 
seems  to  be  some  difference  in  the  course  pursued  in  giving  it 
practical  effect.  Ford  v.  Fitchburg  R.  Co.,  110  Mass.  240 ;  Sprong 
v.  Boston  &  A.  R.  Co.,  58  N.  Y.  56 ;  Memphis,  etc.,  R.  Co.  v. 
Thomas,  51  MJsa.  637 ;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Frawiey, 
28  Am.  &  Eng.  R  E.  Cas.  808. 


^dbyGoOglc 


KA8TEE  AND  8EBVAKT — OOUPLIH'G   0AE8.  155 

Where  a  person  enters  the  service  of  another,  knowing  the  rules 
preBcribed  by  his  employer,  lie  impliedly  ntidertakes 
to  obey  these  rnlea,  and  this  undertaking  enters  into  SStbdU?"" 
his  contract.  An  undertaking  implied  by  hw  is  as 
iDQch  a  part  of  the  contract  as  its  ezpi'efis  stipulations.  Long 
V.  Straus,  107  Iiid.  104.  It  needs  but  little  argument  to  prove 
that  one  who  enters  a  service  governed  by  rnles  which  are  known 
to  him  contracts  to  perform  service  under  those  rules.  It  is  evi- 
dent thiit  this  must  be  so,. or  else  the  cases  which  hold  that  it 
is  a  breach  of  dnty  on  the  part  of  the  lonster  not  to  make  rules, 
as  well  as  those  wliioh  hold  that  it  is  a  breach  of  dnty  for  the  em- 
ployee to  violate  them,  are  not  well  decided ;  and  that  they  are 
not  correctly  decided  cannot  be  granted,  so  that  the  conclusion 
mtist  be  that  the  mlos  form  an  element  of  the  contract  of  service. 
If  regulations  are  not  part  of  the  contract,  then  they  create  no 
duty  ou  the  part  of  the  master  and  impose  no  obligation  on  the 
employee.  If  there  is  no  duty,  there  is  no  liability ;  and  yet,  as 
we  have  seen,  the  cases  all  agree  that  there  is  a  liability  where 
there  is  a  breach  of  known  rules. 

It  cannot  be  possible  that  a  servant  may  discharge  his  duties  as 
ho  sees  fit,  regardless  of  the  rules  prescribed  by  tlie  master.  To 
affirm  that  he  can,  would  be  to  strip  tlie  master  of  all  authority 
over  his  own  business,  and  leave  liim  powerless  to  instruct  or 
command. 

If  tlie  master  has  authority,  and  gives  it  expression  in  rnles  dnly 
made  known  to  his  employees,  they,  by  accepting  service,  agree, 
as  part  of  their  conti-act,  that  they  will  ol>ey  tiiose  rules.  If  this- 
be  not  so,  then  there  can  be  no  systematic  government  of  the 
master's  business,  nor  any  definite  rule  for  determining  the  rights 
and  duties  of  the  parties  where  the  relation  of  master  and  servant 
exists. 

There  is  some  conflict  in  the  anthorities  upon  the  question 
whether  a  contract  exonerating  the  employer  from  liuhilitr  for 
negligence  is  valid,  Roesrier  v.  Hermann,  8  Fed.  Rep.  7S2; 
Western  R.  Co.  v.  Bishop,  50  Ga.  465.  But  we  do  not  entur  tliis 
field  of  conflict.  It  is  not  necessary  for  ns  to  do  so,  because  we  need 
go  no  further  than  determine  that  a  master  may  lawfully  eontiaet 
tliat  Ilia  employees  shall  use  certain  designated  appliances  in  per- 
forming the  duties  of  their  services. 

Our  decision  is  that  the  contract  before  na  is  a  valid  one,  so  far 
as  it  afFects  the  case  made  by  the  complaint;  for  we 
regard  it  as  undertaking  that  the  employees  shall  nse  a  SSffora.  * 
designated  appliance.  It  is  not,  so  far  as  concerns  the 
qnestion  now  before  ns,  a  contract  tiiat  the  employer  shall,  in  auy 
event.  I>e  liable;  but  it  is  an  agreement  that  the  employer  will  not 
be  liable  unless  the  appliances  provided  by  bim  are  used  as  ho 
directs. 


^d  by  Google 


ISo  PENNSYLVANIA   CO.  V.  WHITCOMB, 

The  contract  applies  to  the  coupling  of  all  cars,  and  the  em- 
ployee agrees  to  use  tlie  coupliiig-stick  in  all  cases.  Tlie  employer 
Lad  the  right,  therefore,  to  asenine  that  the  employee  would  not 
ondertake  to  couple  cars,  no  matter  what  their  kind  or  class,  with- 
ont  making  use  of  the  coiipling-etick.  If  a  coupling  conld  hare 
been  safely  made  witli  a  coupliiig-atick,  then  there  is  no  liability, 
whatever  may  have  been  the  kind  of  cars  the  employee  was  re- 
qaired  to  connect.  The  employer  was  not  bound  to  do  more  than 
provide  such  cars  as  might  have  been  safely  connected  by  the  nse 
of  the  appliance  whicli  the  employee  was  din!Ct«d  to  ase.  There 
can  be  no  liahility,  at  least,  nntil  it  is  made  to  appear  that,  had  the 
coapling-etick  been  need,  still  the  duty  of  couphng  couM  not  have 
been  safely  performed,  or  that,  under  the  circumstances,  it  was 
not  practicable  to  use  the  appliance  selected  by  the  employer. 

Tlie  presumption  is  that  the  master  has  performed  his  duty. 
Hard  v.  Vermont  &  C.  R.  Co.,  32  Yt.  473;  Wood,  Mast.  &  Serv. 
ncpLOTD  >ioi  '^'^8;  3  Wood,  K.  R  1468.  This  presumption  the  em- 
K^™™  ployee  must  overcome,  for  it  stands,  until  overthrown, 
cotrpLiD  BT  as  a  prima  fade  case.  Nave  «.  Flack,  90  Iiid.  205. 
Jt  must  therefore  be  held  that  the  appellant  discharged 
its  duty,  unless  the  contrary  has  been  affirmatively  shown;  and 
this  leads  to  the  conclusion  that  the  preenmptiot)  is,  in  the  alteence 
of  countervailing  facts,  that  the  appellant  did  provide  snch  cara 
as  might  have  been  safely  coupled  by  the  use  of  tiie  coupling-stick. 
It  was  incumbent  on  the  appellee  to  overthrow  this  presumption, 
for,  until  overthrown,  it  stands  in  his  way  to  a  recovery,  where 
the  contract  requires  that  the  employee  sliall  use  appliances  desig- 
natod  by  the  master,  and  he  fails  to  do  so,  the  master  cannot  be 
deemed  in  fault  unless  something  more  is  made  to  appear.  Nor 
can  the  master  be  deemed  in  fault  for  providing  cars  tliat  cannot 
be  safely  coupled  by  hand,  when  he  has  required  his  employees  not 
to  couple  by  hand  in  any  case,  but  to  use  the  coupling-stick  in  every 
case.  Where,  as  here,  the  agreement  is  Chat  the  employee  will 
conple  cars  in  the  designated  manner,  the  master  is  bound  to  use 
reasonable  care  to  provide  cars  that  may  be  safely  coupled  in  that 
manner,  bnt  is  not  bonnd  to  furnish  car*  that  cannot  be  safely 
coupled  in  the  manner  forbidden  by  the  contract  of  service. 

The  ntmoet  that  can  be  conceded  to  the  complaint  in  this  case — 
if,  indeed,  so  much  can  be  conceded — is  that  it  shows  an  actionable 
breach  of  dnty  in  failing  to  provide  cars  that  could  be  coupled  by 
hand  without  injury  to  the  brakemen.  The  complaint,  conceding 
its  euSiciency.  is  sufficient  only  because  it  shows  a  negligent  breach 
of  dnty  in  failing  to  furnish  cars  that  might  be  safdy  coupled  by 
hand. 

The  theory  of  the  complaint  is  that  it  was  proper  to  couple  by 
hand ;  the  appellant  did  not  provide  snch  cars  as  conld  be  safely 


^d  by  Google 


MASTER  AND   SERVANT — COUPLINO  CABS,  157 

coupled  in  that  manner;  therefore  it  is  liable.  The  complaint 
makes  a  prima  facie  case,  if  it  makes  one  at  all,  only  upon  the 
hypothesis  that  it  wag  the  appellant's  duty  to  provide  cars  that 
might  with  safety  be  conpled  by  hand,  and  if  tliis  tiypothesiB  is 
destroyed  llie  prima  facie  case  fails.  The  answer  does  destroy 
this  prima  fade  case,  because  it  eIiowb  that  it  was  a  breach  of 
duty  by  the  employee  to  uTidertake  to  couple  the  care  by  hand, 
and  because  it  shows  that  the  ol)ligation  resting  on  the  appellant 
was  that  of  providing  care  which  might  safely  oe  coupled  by  the 
□Be  of  the  coupling-stick.  T)ie  duty  of  the  master,  under  the 
contract  of  service,  was  to  provide  cai-e  Chat  might  be  coupled  with- 
out danger  by  the  use  of  a  coupiing-stick,  and  not  to  provide  cars 
that  might  be  safely  coupled  by  liand.  If  tliie  was  tite  appellant's 
duty,  then  it  is  manifest  that,  to  constitute  a  cause  of  action,  there 
must  be  facts  showing  a  breach  of  this  duty. 

We  regard  the  answer  as  presenting,  at  least,  a  prima  facie  de- 
fence, and  this  is  snfficient  to  drive  the  appellee  to  a  reply. 

Judgment  reversed. 

violation  by  Employeo  of  Rul«  Forbidding  Coupling  by  Hand. — See  Pay 
V.  UiDDenpolis,  etc.,  R.  Co.,  11  Am.  &  Eog.  R.  R  Cae.  198.  Bee,  generdlj, 
next  caae  and  note. 


DABBAOirrra 


Chesapeasb  and  Ohio  B.  Co. 
{Adwine«  Cast,  Virginia.     May  6,  1887.) 

Where  a  rule  of  a  railroad  compao;  forbade  employees  entering  between 
cKn,  when  in  motion,  to  uncouple  them,  "and  all  such  imprudeocea ; "  and 
auotber  rule  required  that  when  poesibte  a  stick  eliould  be  used  in  coupliag 
cax^,  it  ie  contributor;  negligence  for  a  brekemsD,  li&ving  knowledge  of 
Bucli  rules,  to  stiind  before  a  ststionsr;  car  while  another  is  moving  toward 
him,  Kud,  observiag  that  the  approaching  car  was  provided  nith  a  "  three- 
link  coupling,"  to  attempt  to  make  the  cuupling  bj  hand. 

In  view  of  the  frequency  with  which  the  "three-link  coupling"  is  used 
ou  freight  trains,  a  brakeman,  whose  duty  it  is  to  couple  cars,  must  be  pre- 
sumed to  have  assumed  the  increased  risk  attendant  upon  the  use  of  this 
coupling  as  one  of  the  ordinary  perils  of  his  employment. 

This  was  an  action  of  trespass  on  the  case  in  the  circuit  court  of 
Hanover  county.  The  action  was  brought  to  lecover  damages  for 
injaries  sustained  by  the  plaintiff  while  engaged  in  coupling  cars 


^dbvGoo^lc 


158         DARRAOUTTS  V.  CHESAPEAKE  AND   OHIO   R.  CO. 

of  the  defendant  company.  Tlie  declaration  alleges  that  tlie 
plaintiff,  when  the  accident  occurred,  was  in  tlie  employ  of  the 
company  as  a  hrakeman,  and  tliat  tlie  injuries  complained  of  were 
caused  by  the  defective  lixturee  for  coupling  on  a  certain  car,  wliicli 
Le  was  in  tlie  act  of  coupling  to  another.  Tliere  was  a  demurrer 
to  the  declaration,  wliieli  the  circuit  court  sustained,  witli  leave, 
however,  to  tlie  plaintiff  to  amend.  Tlie  declaration  was  accord- 
ingly amended  hy  adding  an  averment  tliat  the  plaintiff  was 
"  withont  knowledge  of  tiie  defective  condition  of  said  draw-heads, 
bumpers,  and  fixtures  for  coupling,  acquired  in  time  to  avoid  tiie 
said  injury  hereinafter  complained  of  and  sustained,"  etc.  The 
defendant  thereupon  pleaded  tlie  general  issue,  upon  which  plea 
issue  was  joined ;  and  the  jury,  Iiaving  heard  .tlie  evidence,  re- 
turned a  verdict  for  the  plaintiff  for  $4500  damages.  The  court, 
liowcver,  upon  the  motiou  of  the  defendant,  set  aside  the  verdict, 
and  grantea  a  new  tna] ;  and  at  a  sabsequent  term,  neither  party 
requiring  a  jury,  judgment  was  given  for  the  defendant,  wlier& 
upon  the  planitiff  obtained  a  writ  of  error. 

Sands,  Leake  cfe  Carter  for  plaintiff  in  error. 

William  J.  Robertt<m  and  H.  T.  Wi(^cham  for  defendant  in 
error. 

Lewis,  P. — The  case  presents  no  new  question,  and  may  be 
briefly  disposed  of.  The  tirst  assignment  of  error  is  that  the  cir- 
cuit court  erred  in  sustaining  the  demurrer  to  the  declai-ation.  A 
sufficient  answer,  liowever,  to  this  objection  is  that  by 
racLiBiTioM-  amending  the  declaration,  and  going  to  trial  on  the 
merits,  the  right  to  object  to  the  ruling  of  the  court  on 
the  demurrer  was  waived.  This  is  a  well-settled  rule,  in  support 
of  which  counsel  for  the  defendant  in  error  refer  to  the  pertinent 
huiguiige  of  Kelson,  0.  J.,  in  Jones  v.  Tbompson,  6  Hill,  621, 
who  said  :  "  By  amending  and  pleading  the  general  issue,  the  de- 
fendant admitted  the  correctnese  of  the  judgment  on  the  demurrer. 
Had  he  intended  to  rely  upon  any  error  in  that  judgment,  lie 
should  not  have  amended,  but  left  the  issue  upon  the  record,  and 
taken  his  appeal  at  once.  Who  ever  heard  of  an  issue  at  law 
upon  the  record  in  this  court  after  the  party  demurring  has  availed 
himself  of  the  privilege  by  joining  an  issue  of  fact?" 

Upon  a  similar  point  in  Clearwater  v,  Meredith,  1  "Wall.  25,  the 
supreme  court  of  the  United  States  said  :  "  When  the  plaintiff  re- 
plied de  novo  after  a  demurrer  was  sustained  to  his  original  replica- 
tion, he  waived  any  right  he  may  have  had  to  question  the  correct- 
ness  of  the  decision  of  the  court  on  the  demurrer.  In  like  maimer 
he  abandoned  his  second  replication  when  he  availed  himself  of 
the  leave  of  the  court,  and  filed  a  third  and  last  one."  And  the 
.  same  rule  prevails  in  equity.     Marshall  v.  Yicksbnrg,  15  Wall.  146. 


^d  by  Google 


MA8TEB  AND   SERVANT — COUPLING   CARS.  15& 

The  qucBtioii,  then,  is  whether  tlie  plaintiff  is  entitled  to  i-eeover 
upon  the  evidence  befoi'e  the  jurj',  which  ie  certified  with  the 
record,  and  npon  which  the  case  was  decided  in  the  circuit  court. 
And  in  ttiis  connection  two  queetioiis  have  heen  raised:  (1) 
Whetlierthe company  was  negligent ;  and  (2)  whether  tlie  plaintiff 
was  gnilty  of  bdcIi  contribatory  negligence  as  to  defeat  his  right 
of  recovery. 

The  evidence  shows  that  the  car,  the  coupling  fixtures  of  which 
were  defective,  left  Hinton,  West  Virginia,  in  good  condition  coin- 
injC  east  on  the  twenty-sixth  of  December,  1881.     It  was  rum. 

a  flat  car  loaded  with  lumber,  and  was  one  of  a  number  of  freight 
cars  composing  the  same  train.  Wlien  it  arrived  at  8taiinton,  its 
draw-head  was  found  tohavebeen  pulled  out  or  broken,  wiiicb  neces- 
sitated the  nso  of  what  is  called  "  the  three-link  coupling  "  in  order 
to  carry  it  to  its  destination  without  delay.  The  evidence  also 
shows  that  such  accidents  are  of  frequent  occuj-rence,  and  that 
npon  Bucb  occasions,  to  avoid  delay  in  the  transmission  of  freight, 
the  three-link  coupling  is  nsuaily  I'esorted  to.  It  is  made  by  at- 
taching two  chains  of  three  links  each  to  hooks  some  distance  apart, 
on  the  bottom  sIU  of  tiie  damaged  car,  and  then  inserting  the  end 
links  of  the  chains,  placed  one  upon  the  other  in  the  sound  draw- 
head  of  the  car  to  wliich  the  coupling  is  to  be  made.  There  they 
are  fastened  with  a  pin,  as  in  ordinary  coupling.  This  mode  of 
coupling  is  as  safe  as  the  ordinary  one-link  coupling  for  carrying 
cars  forward,  but  is  more  dangerous  to  make  if  made  while  the 
cars  are  in  motion.  A  rule,  however,  of  the  company  expressly 
forbids  employees  entering  between  cars  when  in  motion  to  un- 
couple them,  and  the  same  rule,  in  view  of  the  evidence  befot-e  us, 
□ndoubtedly  applies  to  the  coupling  of  cars  where  the  three-link 
cnnphng  is  made.  Its  language  is  as  follows ;  "  Ej)tering  between 
cars  wlien  in  motion  to  uncouple  them,  and  ail  sncli  imprudences, 
are  dangerous,  and  in  violation  of  the  rules  of  this  company."  A 
printed  copy  of  the  rntes,  of  which  this  was  one,  was  furnished  to 
the  plaintiff,  and  receipted  for  by  liiiii  njore  than  a  month  before 
the  accident  occurred. 

Tiie  evidence  does  not  show  that  the  plaintiff  knew,  or  with  the 
exercise  of  reasonable  diligence  might  have  known,  of  the  condi- 
tion of  the  defective  car  before  it  reached  Hanover  junction,  where 
the  accident  occurred.  Several  of  the  defendant's  witnesses  testify 
tliat  they  are  of  the  impression  they  previously  called  his  attention 
to  it,  but  he  himself  testifies  positi vely  to  the  contrary.  The  acci- 
dent occurred  in  this  way:  The  train  upon  wliich  the  plaintiff  was 
employed  was  divided  into  threesections,  just  before  reacliing  Han- 
over junction  on  a  down  grade.  The  first  section  remained  at- 
tached to  the  engine,  and  was  carried  down  to  the  junction.  The 
second  or  middle  section  followed  a  short  distance  behind,  and 


^dbvGoogle 


100         DAKRACDTT3  V.  CHESAPEAKE  AHD  OHIO   E.  CO. 

when  it  readied  the  innction,  was  switched  off  on  a  side  tnek.,  and 
was  there  stopped.  Tlie  third  or  rear  section  was  then  broaght 
down,  moving  slowly.  As  it  approaclied  tlie  tii'St  section,  standing 
on  the  main  track,  the  plaintiff  went  to  tlie  rear  end  of  the  first 
eection  to  make  tliecoapling  between  the  two  sections.  There  he 
took  position,  standing  with  one  foot  between  the  rails,  the  other 
OQtsiae,  with  his  ngiit  hand  resting  on  the  rear  sill  of  the  rear  car. 
He  stood  in  this  position  for  seveial  minntes,  until  the  arrival  of 
the  third  section,  at  tiie  head  of  which  was  the  damaged  car  with 
the  two  chains  hangiiiir  from  the  hooks  of  its  front  sill  to  which 
they  were  attached.  Tlie  track  at  this  point  ie  straight  for  a  mile 
or  more  ;  thns  giving  the  plaintiff  ample  opportnnity  to  liave  ob- 
served tlie  defective  condition  of  the  approaching  cur.  He  testi- 
fies that  he  did  not  in  fact  observe  its  condition  until  the  car  was 
within  four  fjet  of  where  he  stood, — too  late,  lie  says,  for  him  to 
have  left  the  track  with  safety.  Bnt  upon  this  point  the  evidence 
in  conflicting. 

A  rule  of  the  company  provides  that  "  in  conpling  cars  a  stick 
shonld  always  be  nsed,  when  possible,  which  materially  leEsens 
the  danger  of  conpling.  NevcrtlieleEs,  the  plaintiff  nndertook  to 
make  rhe  coupling,  not  only  without  the  nia  of  a  stick,  bat  with 
his  left  hand  only  ;  and,  in  the  attempt  to  do  so,  liis  hand  was  caught 
and  cmshed  between  the  couplings  of  the  cai-s. 

Tiie  witness  Miehie,  who  was  the  conductor  of  the  train,  testi- 
fies that,  as  the  plaintiff  was  going  up  the  track  to  make  the  conp- 
ling, he  wai'ned  him,  when  within  five  or  six  steps  of  him,  to  "  be 
particular,"  saying  at  the  sqme  time  that  the  coupling  was  a  dan- 
gerous one  to  make.  He  also  testifies  that  he  has  been  in  the  em- 
ploy of  the  company  for  a  number  of  yeai-s,  as  a  freight  conductor, 
and  has  never  seen  or  known  of  a  bnikeman  making,  or  atteuipitng 
to  make,  a  three-link  coupling  when  the  curs  were  in  motion.  The 
witness  Cosby  testttiee  that,  while  the  rear  section  of  the  train  was 
slowly  approaching  the  liret  section,  which  was  stationary  on  the 
main  track,  and  had  nearly  reached  it,  he  called  the  plaintifTs  at- 
tention to  the  coupling  of  tlie  flat  car,  and  cautioned  him  not  to  go 
between  the  cars.  The  witness  was  a  brakeman  on  the  rear  sec- 
tion, and  WHS  standing,  when  iie  spoke  to  tlie  plaintiff,  on  the  top 
of  one  of  the  moving  cars.  He  says  he  spoke  loud  enough  for  the 
plaintiff  to  have  beard  him,  though  he  made  no  reply.  The  plain- 
tiff, however,  testifies  that  he  did  not  hear  the  warning  either  of 
Miehie  or  Cosl)y.  And  Dr.  Andereon,  who  happened  to  be  stand- 
ing near  by,  and  who  went  to  the  piaintiEPs  assistance  when  the  ac- 
cident occurred,  testifies  that  they  were  nuheard  by  him.  But 
several  wirnesses,  who  were  in  no  better  poeitinu  for  hearing,  swear 
positively  that  they  distinctly  heard  the  remarks  of  both  Miehie 
and  Cosby. 


^d  by  Google 


SIA8TEB  AND  SERVANT — OOUPUHQ   OARS.  161 

At  all  eventB,  the  evidence  sfaowB  that  the  dangerouB  condition 
of  the  conpling  was  obvious,  and  that  the  plaintiB,  in  violation  of 
the  rules  of  the  company,  voluntarily  put  Limeelf  in  a 
positioit  of  danger,  in  couBequence  of  which  he  was  in-  S^™m™» 
jnred.  Under  tliese  circnmstances,  in  the  eye  of  the  ™™.  """" 
law,  he  was  tlie  author  of  his  own  misfortune ;  tliat  h 
to  Bay,  )iis  negligence,  or,  what  is  the  same  thing,  his  failure  to 
use  reasonable  and  proper  care  and  caution,  was  tlie  proximate 
cause  of  tlie  injury  complained  of.  The  action  is  therefore  not 
maintainable;  for,  as  was  forcibly  said  by  Judge  Cooley,  in  Michi- 
gan Oent.  R.  Co.  v.  Sinitheon,  i5  Midi.  212;  e.c,  1  Am.  &  Eug.  R. 
R.  Cas.  101 ;  "  Tlie  best  notice  is  that  which  a  man  must  of  neces- 
sity see,  and  which  cannot  confnse  or  mislead  liim.  He  needs  no 
printed  placard  to  announce  a  precipice  when  lie  stands  before  it." 
And  bv  Mr.  Justice  Millec,  in  CnnTiingham  v.  Chicago,  M.  &  St. 
P.  R  'Co.,  5  McCrary,  465,  17  Fed.  Rep.  882  ;  s.  c,  12  Am.  & 
Eng.  R.  R.  Cas.  217:  '■  A  man  has  no  i-iglit  to  tlirust  himself  for- 
ward iuto  a  dangerous  position,  and  say  :  '  If  I  am  hurt  I  shall  so 
to  the  hospital  and  be  taken  care  of,  and  recover  damages.'  He 
has  got  to  take  care  of  himself,"  etc. 

The  law  undoubtedly  imposes  upon  a  railroad  company  the  duty 
to  observe  due  care  in  selecting  competent  servants, and  in  supply- 
ing and  maintaining  suitable  and  safe  machinery  and  a  safe  track, 
Baltimore  &  O.  R,  Cp.  v.  McKinzie  (not  yet  reported).  It  ia  not, 
however,  tlie  insurer  of  the  safety  of  its  emyloyees.  Its  duty  is 
discharged  by  the  exercise  of  ordinary  care;  and  by  ordinary  care  is 
meant  "such  watchfulness,  caution,  and  foresight  as,  under  all 
the  circumstances  of  the  particular  service,  a  corporation,  controlled 
by  careful,  prudent  officers,  ought  to  exercise."  Wabash  R.  Co. 
V.  McDaiiiels,  107  U.  S.  454;  s.  c,  11  Am.  &  Eng.  R.  R  Cas.  158. 
Hence  it  is  not  required  to  change  its  machinery  in  order  to  apply 
every  new  invention,  or  supposed  improvement,  in  appliance  ;  and 
it  may  even  have  in  use  a  machiiie  or  appliance  for  its  operation 
shown  to  be  less  safe  than  another  in  use,  without  being  liable  to  its 
employees  for  the  non-adoption  of  the  improvement,  provided  that 
the  employee  be  not  deceived  as  to  the  degree  of  danger  that  he 
incurs.  \Vljart.  Neg.  §  213 ;  2  Thomp.  Neg.  1019,  §  24,  (2); 
Hough  V.  Rjulway  Co.,  100  U.  S.  213;  Loveiov  v.  Boston,  etc.,  R 
Co.,  125  Mass.  79;  s.  c,  1  Am.  &  Eng.  R.  E.  fcaa.  613;  Michigan 
Cent.  R  Co.  v.  Smithson,  supra. 

There  are  also  certain  corehitivo  duties  on  the  part  of  the  em- 
ployee to  the  company.  Of  these,  one  is  the  duty  of  the  employee 
to  be  reasonably  observant  of  tlie  machinery  he  operates,  and  to 
report  any  defects  he  may  discover  therein  to  the  company.  An- 
otaer  is  to  use  ordinary  care  to  avoid  injuries  to  himself;  for  the 
company  is  under  no  greater  obligation  to  care  for  his  safety  than 
he  himself  is.  He  must  always  obey  the  rales  of  the  company  pre- 
SI  A.  A  E.  R  Cu.— 11 


^d  by  Google 


162         DAKBACUITS   V.  CnE8APEAKE  AND   OHIO   B.  CO. 

Bcribed  for  his  safety,  and  which  are  brought  to  hie  knowledge. 
And  lie  ranat  inform  himeelf,  as  far  as  he  reasonably  can,  respect- 
ing the  dangers  as  well  as  tlie  duties  incident  to  the  service  apon 
which  he  enters. 

It  has  therefore  been  held  in  nnmerons  cases,  and  the  principle 
is  elementary,  that  where  the  employee's  wilfnl  disobedience  of  the 
company's  rules  is  the  proximate  oiiuse  of  the  injury  complained 
of,  no  recovery  can  be  had  of  the  company.  And,  in  general,  any 
negligence  of  the  employee  amonnting  to  the  want  of  oi-dinary 
care,  which  is  the  proximate  cause  of  the  injury,  will  defeat  his 
riglit  of  action  against  the  company.  Clark's  AtJm'i-  v.  Richmond 
&  D.  R.  Co.,  78  Va.  709;  s.  c.,  18  Am.  &  Eng-R.  R.  Cas.  78; 
Slieeler's  AdmV  v.  Clicsapeake  &  O.  R.  Co.  (not  yet  reported); 
Memphis  &  C.  R.  Co.  v.  Thomas,  51  Mies.  637;  Slianny  v.  An- 
droscoggin Mills,  66  Me.  420;  Muldowney  v.  Illinois  Cent.  R.  Co., 
39  Iowa,  615;  Lockwood  v.  Chicago,  etc.,  R,  Co.,  65  Wis.  60;  s.  c, 
6  Am.  &  Eng.  R.  R.  Cas.  151;  Toledo,  etc.,  R.  Co.  v.  Asbury,  84 
111.  429;  HutUawavu.  Michigan  Cent.  R.  Co.,  51  Mich.  253;  s.  c, 
12  Am.  A  Eng.  R'.  R  Gas.  249;  Railroad  Co.  v.  Jones,  95  U.  S. 
4  !9,  and  cases  cited. 

This  is  decisive  of  the  case  before  ns.  It  is  proper,  however, 
to  say  that  the  evidence  does  not  establish  negligence  on  the  part 
of  the  company.  If  the  rules  of  the  company  are  observed  the 
risks  and  perils  of  the  service  are  not  increased  by  the  use  of  the 
three-link  coupling;  and  if  they  were,  in  view  of  the  frequency 
with  which  such  couplings  in  emergencies  are  made,  the  danger  in. 
cident  to  their  use  may  well  be  considered  as  one  of  the  ordinary 
perils,  the  risks  of  which  by  his  contract  of  service,  the  plaintiff 
assumed.  He  certainly  had  ample  means  of  knowing  that  such 
couplings  were  often  made  by  the  company,  and  he  is  therefore 
aSected  with  notice  of  the  fact.  It  was  his  duty  to  have  known  it 
if  he  did  not;  and  the  rule  is  well  settled  tliat  where  an  employee 
has  notice  of  extra  hazard  in  the  line  of  his  employment,  and  con- 
tinaes  in  the  service,  without  any  promise  on  the  part  of  tlie  master 
to  do  any  act  to  render  the  same  less  hazardous,  it  will  be  at  his 
own  peril ;  for  the  law  presnmes  that  he  intended  to  assume  them  ; 
otherwise  he  would  have  quit  the  service.  Clark's  Adm'r  v.  Rich- 
mond <fe  D.  E.  Co.,  78  Va.,  709  ;  8.  C.  18  Am.  &  Eng.  R.  R.  Cas. 
78;  Stafford  v.  Chicago,  etc.,  R.  Co.,  114  IlL  244;  Hough  «.  R 
Co.,  lOO  U.  S.  213. 

For  these  reasons  we  are  of  opinion  tliat  the  circuit  court  did 
not  err  in  setting  aside  the  verdict  of  the  jury,  and  granting  a  new 
trial,  nor  afterward  in  givin?  final  judgment  for  the  defeudant. 
The  judgment  is  therefore  anirmed. 


^d  by  Google 


MASTER   AND   SERVANT — COUPLING   CABS.  163 

Injuries  in  Coupling  Can.  Duty  of  the  Company  at  to  Cars  and  Appara- 
■tut, — Ruanonable  cam  and  prudence  must  be  exercised  by  a  railroud  compaii  j 
in  furniahmg  cara  to  its  employees  with  safe  and  suitable  ciiupling  apparatus. 
Probst  I,  Delamater,  100  N.  T.  28B,  272;  Toledo,  etc.,  R.  Co.  e.  Aaburj, 
84  111.  438;  Himgh  *.  T.  P.  R.  Co.,  100  U.  S.  218;  Botsford  o.  Michigan, 
etc.,  R.  Co.,  33  Mich.  356;  L.  &  N.  R.  v.  Orr,  84  Ind.  50;  8.  C.  8  Am. 
&  Eng,  R.  R.,  Cas.  04;  Mulhin  «.  Phila,  etc.,  R.  Co.,  78  Pa.  St.  25. 

Id  Umbackc.  Lake  Shore,  etc.,  R.  Co.,  83  Ind.  91,  the  court  say:  "The 
obligations  of  the  master  to  provide  suitable  and  safe  machioery  and  appli- 
ances does  not,  however,  impose  upoo  him  the  duty  of  using  extraordinary 
care  and  diligence,  but  does  require  him  to  be  ordinarily  careful^  and  dili- 
gent." See  also  Lako  Shore,  etc-  Co.  r.  McCormick,  74  lod.  440;  Fuller  o. 
Jewett,  80  N.  Y.  46. 

The  bumpers  should  be  of  equal  height  as  nearly  as  possible.  Muldowney 
e.  Illinois  Cent.  R.  Co.,  86  Iowa  463.  But  the  mere  fact  that  the  cars  are  of 
unequal  height  and  more  difficult  to  couple,  does  not  constitute  such  ntgli- 
gence  as  will  render  the  company  liable  to  its  servants,  who  knowingly  incur 
the  risk.  SL  Louis,  etc.,  R.  Co.  v.  Hiegins,  44  Ark.  398;  S.  C.  21  Am.  & 
Eng.  R.  R.  Cas.  639;  Eline  v.  Kansas  City,  etc.,  R.  Co.,  60  Iowa  S56;  Ft. 
Wayne,  etc.,  R.  Co,  r,  Qitdersleeve,  83  Mich,  133. 

In  Hulett  r.  St,  Louis,  etc,  K  Co.,  67  Mo.  839,  the  plaintiff,  while  coup- 
ling cara  of  unequal  height,  was  injured  through  neglecting  to  use  the  crooked 
link  usually  employed.     Slid,  that  he  was  guilty  o(  contributory  negligence 

Defective  Coupling  Apparatus — Where  the  drawbar  is  too  short,  and 
causes  on  accident  the  company  ia  responsible. 

5.  Fredericks,  71  111,  394 ;  Le  Clair  e.  Friat  Divi- 
9;  Crutchfield  t.  Richmond,  etc.,  R.  Co.,  78  N. 
Car,  300.  As  to  drawbar  on  locomotive  being  too  short,  see  Whitman  e. 
Wisconsin  &  M.  R.  Co,  (Wis.),  13  Am.  &  Eng,  R.  R.  Cas,  314;  Lawless  v. 
Conn.  River  R,  Co.,  136  Mass.  1 ;  S.  0.  18  Am.  &  Eng.  R.  R.  Cas,  96, 

Tlie  railway  is  not  liable,  merely  because  the  car  coaplings  work  slowly. 
Williams  e.  Central  R.  Co.,  43  Iowa  396, 

In  Houston,  etc.,  R.  Co.  v.  Maddox  (Texas)  21  Am.  &  Eng.  R.  R.  Cas.  62S, 
it  was  held  that  the  following  charge  to  tiie  jury  was  correct:  "The  law  im- 
poses on  the  defendant  the  duty  of  furnishing  to  its  employees  machinery 
and  appliances  of  all  kinds,  including  links  and  pins,  reasonahly  suitable 
and  proper  to  enable  such  employees  to  perform  the  dulies  required  of  them, 
and  also  to  use  reasonable  diligence  to  keep  such  machinery  and  appliances 
in  such  reasonable  proper  condition  after  they  are  furnished;  and  if  plaintiff 
WBB  injured  by  a  reason  of  a  failure  of  defendant  in  this  respect,  he  would  be 
entitled  to  recover,  nniess  you  believe  from  the  evidence  that  it  waa  a  part 
of  plaintiff's  duty  as   brakeman  to  examine  the  link  before  undertaking  to 

Where  an  unexperienced  minor  was  employed  by  a  railroad  company  to 
-couple  cars,  and  was  set  to  couple  two  passenger  cars,  one  with  an  ordinary 
drawbar  and  one  with  a  Miller  drawbar^no  especial  instructions  being 
given  him — and  while  so  doing,  the  minor  waa  killed.  Held,  that  the  com- 
pany was  not  guilty  of  culpable  negligence  per  le.  but  that  the  question  of 
negligence  was  for  the  jury.  Penna.  Co,  e.  Long  (Ind.V  15  Am.  Sc  Eng,  R. 
R.  Cas.  846.      See  alao  T.  W.  &  W.  R.  Co.  v.  Aabury,  84  111.  439, 

In  Russell  e.  Minneapolis,  etc.,  R,  Co.,  S3  Hlnn.  380,  the  plaintiff,  who 
had  been  for  some  time  a  brakeman  in  the  employ  of  defendants,  was  injured 
wbile  endeavoring  to  couple  a  baggage  car  equipped  with  a  "  Miller  "  coupler 
to  the  tender  of  an  engine  equipped  with  tlie  ordinary  coupler.  The  latter 
not  being  provided  wi£  wooden  buffers  to  prevent  the  car  and  tender  from 


^d  by  Google 


164        DABRACanS  V.  CHESAPEAKE  AND   OHIO   B.  CO. 

colliding,  a  collision  took  plftce.  Hsld,  that  it  wai  a  qneition  for  the  jury 
vhether  or  not  plaintiff  bad  notice  ot  the  danger  involved  in  making  the 
coupling.  The  court  Baid:  "  Now,  in  this  case, plaintiff  undoubted);  knew 
the  character  of  these  two  couplers.  He  knew  that  one  was  a  Miller  and  the 
other  &  common  one.  He  alao  knew  that  the  former  had  a  certain  amount  of 
lateral  motion ;  also  that  there  was  no  goose-neck  or  wooden  buffers  on  the 
tender.  But  conceding  this,  and  assuming  that  he  must  be  held  to  the 
ordinarj  skill  and  experience  of  brakemen,  it  does  not  appear,  certainly  not 
OODclusivelj,  that  he,  b;  the  exercise  of  ordinary  observation,  ought  to- 
hHve  understood  the  risks  to  which  he  was  exposed  b;  using  such  couplers. 
He  was  not  bound  to  be  an  experienced  machinist  or  car-builder.  It  doea 
not  appear  that  he  knew,  or  b;  the  exercise  of  ordinary  observation,  ought 
to  have  known,  that  the  lateral  motion  of  the  Miller  coupler  was  sufficient 
to  permit  it  to  slip  past  the  end  of  the  drawhead  on  the  tender.  It  does 
not  appear  that  the  use  of  these  two  kinds  of  couplers  together  in  this  wa; 
was  UHual  or  common,  so  that  brakemen  geoerallj  would  or  should  under- 
stand fully  the  dangers  incident  to  such  a  practice.  .  .  .  The  matter  was 
properly  for  ihe  jury."  Bee  also,  QottUeb  e.  N,  T.,  etc.,  B.  Co.,  H  Am.  & 
Eag.  R.  R.  Caa.  421. 

Open  and  Solid  Drawheads.— In  Nashvilt*,  etc.,  R.  Co.  e. Wheeler,  4  Am. 
&  Sug.  R.  R.  Chs.  SS3,  the  plaintiff  was  a  brakeman  in  the  employ  of  defen- 
dants and  was  injured  while  coupling  cars.  The  company  had  two  kinds  of 
"drawheadfl"  in  use  for  coupling  freight  cars;  one  known  as  the  "open" 
drawhead,  the  other  as  Ihe  "  solid  "  drawhead.  The  former  was  the  older; 
the  latter  was  the  improved  and  safer  device  for  connecting  the  chis.  The 
two  cars  being  coupled  had  the  "open"  drawhead,  and  the  proof  tended  to 
show  that  plaintiff  knew  that  both  kinds  were  in  use  and  continued  in  hia 
employment  without  objection.  Held,  that  he  assumed  the  risks  and  dangers 
'  incident  to  the  service  and  could  not  recover.  Held,  further,  that  inetruc^Dg 
the  jury  that  plaintiff  could  not  recover  if  he  knew  thst  both  styles  of 
"dranheads"  were  in  use  and    continued  to  act  as  brakeman  without  ob- 

8ee  a'lflo.  note  to  2  Am.  &  Eng.  R.  R.  Cas.  163. 

Injuries  in  Coupiing  Cars  Marked  "  DefBCtiva."— Where  it  is  the  custom 
of  the  railroad  company  to  put  on  a  sldc;-track  snd  mark  "out  of  order"  de- 
fective cars,  upon  proof  of  the  custom  the  company  will  not  be  responsible 
for  an  injury  done  to  a  brakeman  while  coupling  cars  by  reason  of  a  de- 
fective drawhead,  unless  the  eiistence  oF  the  custom  was  concealed  from 
him  by  the  coropaoy.  And  when  it  is,  by  the  custom  of  a  rRilroad  company, 
part  of  a  brakemsn's  duty  to  couple  defective  or  broken  cars,  so  that  they 
may  be  taken  to  the  shops  for  repair,  he  will  be  held  to  have  assumed  the 
risks  incident  to  that  particular  employment,  and  cannot  recover  in  case  of 
an  injury  sustained  therein.  Watson  c.  Houston,  etc.,  R.  Co.  (Texas)  11 
Am.  &  Eng.  R.  R.  Cas.  218.  See,  also,  Chicsgo,  etc.,  R.  Co.  b.  Ward,  61 
111.  130.  Placing  a  car  on  the  side-track  or  chalking  it  "  out  of  order "'  is 
sufficient  notice  to  employees  that  the  car  is  defective  and  not  for  general 
use.  Watson  t.  Houston,  etc.,  K  Co.  (Texas),  11  Am.  &  Eng.  R.  R.  Cas. 
313. 

A  railroad  company  is  not  bound  at  its  peril  to  make  use  only  of  the  best 
implements,  the  best  machinery  and  the  best  methods.  Michigan,  etc.,  R. 
Co.  V.  Bmithaon,  45  Mich.  313;  s.  c,  1  Am.  &  Eng.  R.  R.  Cas.  101. 

It  is  not  bound  to  discard  cars  of  an  old  style  because  coupling  them  with 
earn  of  a  new  pattern  is  attended  with  increased  danger.  Ft,  Wayne,  etc., 
R.  Co.  e.  Gilderaleeve,  88  Hich.  188;  Indianapolis,  etc.,  R.  Co.  e.  Flanegan, 
77  III.  865;  Toledo,  etc.,  R.  Co.  e.  Black,  88  111.  113. 

In  Michigan  Cent.  R.  Co.  e,  Smithson,  1  Am.  &  Eng.  R.  R.  Gas.  101,  the 


^d  by  Google 


MASTER  AND   SERVANT — CnUPI.INO   CARS.  165 

railroad  company  recelTed  and  traDsporled  cars  over  ita  road,  the  coupling 
Apparatus  of  whicb  differed  conaiderabi;  from  that  on  its  owa  cars.  Tho 
difference  made  the  coupling  more  dangerous.  Ttebrakemeu  were  frequently 
called  upon  to  make  up  trains  with  them.  Held,  aot  to  be  legal  Deglifcence 
to  receive  and  tmasport  such  cars  nor  to  fail  to  notif  j  the  brakemea  of  the 
difference,  this  being  apparent  toanfooe  attempting  to  perfurn  the  coupling. 

In  Whitroao  e.  Wisconsin  &  M.  R.  Co.  (Wis.).  18  Am.  &  Eng.  R.  R.  Ca». 
214,  ItfoD,  J.,  says:  "A  railroad  company  is  not  required  to  have  all  itt 
cars  or  locomotives  constructed  after  the  same  pattern.  It  may  lawfully 
construct  them  after  different  models,  and  may  use  different  appliances  in 
operating  its  railroad.  The  law  only  requires  that  eucb  cars,  locomotiveB 
and  appliances  shall  be  rensonably  safe  for  the  uses  to  which  they  are  put. 
Hence  it  was  not  per  te  negligence  on  the  part  of  the  defendants  to  use  upon 
their  railroads  an  engine  the  draw-bar  of  which  was  too  short  to  permit  one 
of  its  cars  to  be  safely  coupled  to,  or  detached  from  such  engine." 

Coupling;  Cart  with  Projecting  Loads.— In  Day  t>.  Toledo,  etc.,  R.  Co., 
43  Mith.  533;  s.  c,  2  Am.  &  Kng.  R.  R.  Cas.  126,  an  experienced  brakemaa 
was  ordered  by  the  conductor  to  attach  a  car  loaded  with  lumber,  which 
projected  forward  and  compelled  him  to  stoop  in  making  the  coupling.  la 
doing  BO  he  delayed  a  little  and  his  fingers  were  caught  in  the  coupling  link 
aud  Durt.  ^Id,  that  the  company  waa  not  liable.  Campbell,  J.,  said: 
"  The  injury  was  from  one  of  the  risks  incident  to  the  occupation  of  plaintiff, 
and  he  knew  better  than  the  conductor  or  any  one  else  the  precise  difficulty 
to  be  guarded  against.  The  conductor  was  not  shown  in  any  way  to  hare 
been  in  fault,  and  it  would  be  absurd  to  hold  a  corporation  for  imputed 
negligence,  when  do  person  except  the  plaintiff  could  have  been  aciually 
guilty  of  it." 

Where  a  yard  switchman  whose  duty  it  waa  to  couple  cars,  but  who  was 
«  new  man  in  the  yard  and  inezperienced,  while  attempting  to  couple  a  flat 
«ar  loaded  with  projecting  timbers  and  a  boi  car,  properly  went  in  between  ' 
them  and  stepped  into  a  ditch  made  by  the  company,  of  which  he  had  no 
Icnowledge,  and  slipped,  and  in  recoverinz  himself  raised  his  head  and  was 
■truck  by  the  projecting  timbers  and  killed.  Held,  that  such  evidence  tended 
to  show  n^ligence  on  the  part  of  the  railroad  company,  and  did  not  neces- 
sarily  show  negligence  on  the  part  of  the  plaintiff's  intestate.  Brown  e, 
Atchison,  etc.,  K.  Co.,  15  Am.  &  Bng.  R.  R.  Cas.  271. 

In  Atchison,  etc,  R.  Co.  e.  Plunkett  {Kansas),  2  Am.  &  Eng.  R.  R.  Gas. 
137,  188,  Valentine,  J.,  said :  "  If  this  had  been  the  first  time  that  cars  had 
baen  received  in  the  yard  loaded  in  the  manner  that  these  cars  were  loaded; 
or  if  the  deceased  had  been  a  new  man  in  the  yard,  or  inexperienced ;  or  if 
it  had  been  in  the  night-time  that  the  coupling  was  to  be  done,  as  was  the 
case  in  Hamilton  e.  Des  Uoines  Valley  R.  Co.,  86  Iowa,  82,  it  might  then, 
and  probably  would  have  been  negligence  for  the  defendant  to  order  the 
deceased  to  make  the  coupling  without  first  ezpltuning  to  him  the  condition 
of  the  loads,  and  all  the  dangers  connected  with  the  act  of  making  such  a 
coupling.  And  even  then,  after  making  such  explanations,  it  might  still 
have  been  negligence  if  the  deceased  had  been  inexperienced,  and  if  the  de- 
fendant knew  it."  In  this  case  the  court  held  that  it  is  not  negligence  for 
the  railroad  compiny  to  order  and  permit  a  skilful  and  prudent  person,  who 
taas  been  in  its  employ  doin?  that  work  for  about  five  months,  to  attempt  to 
couple  cars  loaded  with  protecting  timbers,  where  the  attempt  is  to  be  made 
in  broad  daylight,  although  it  may  bo  raining  at  the  time.  Bee.  also.  Northern 
CenL  R.  Co.  t:.  Hussan,  101  Pa.  Bt.  1 ;  s.  c,  12  Am.  &  Eng.  R.  R.  Cas.  Ul ; 
Chicago,  etc.,  R.  Co.  e.  Munroe,  8S  111,  35;  Louisville,  etc.,  R.  Co,  «.  Oower 
(Tenn.),  4  B.  W.  Rep.  820;  Louisville,  etc.,  R.  Co.  t.  Brice  (Ey.),  38  Am. 
A  Bng.  R.  B.  Cas.  S42;  Central  R.  Co.  e.  Harrison,  78  Oa.  711. 


^dbyGooglc 


166        DARRACDTTS   V.  CHB8APEAKE  ASD   OHIO   R.  00. 

Rulei  Againrt  Coupling  by  Hftnd.— Id  WoImj  t.  Lake  Bhore  R.  Co.,  89 
Ohio  St.  i'iT,  vbe  acrvmit  woa  injured  while  coupliog  b;  hand,  contrary  to 
the  rules  of  tbe  compsD;  that  a  stick  should  atwajs  be  uaed.  There  was 
evideDCt)  that  the  rule  was  impracticable  and  not  observed.  Btld,  th^t  it 
waa  uot  for  the  cmplojeeH  to  judge<  of  tbe  reasoaableneBB  of  the  rules  and 
that  the  compaoj  was  not  liable. 

But  the  plaiotiff  is  Dot  preTCDted  from  recoTeriog  where  the  injury  would 
have  been  received  even  if  the  stick  had  been  used  as  the  rules  required. 
Reed  n.  Burlington,  etc.,  R.  Co.  (Iowa),  88  N.  W.  Rep.  461. 

And  where  the  employee  has  had  no  notice  of  such  rule,  and  the  usual 
meihod  of  coupling  cars  was  by  band,  he  is  not  bound  thereby.  Notice  of 
such  rule  to  tbe  yard-master  is  not,  per  w,  notice  to  the  brakemaa.  Fay  v. 
Minn.  &  St.  L.  R.  Co..  11  Am.  &  Eng.  H.  Gas.  188. 

What  Amounts  to  Contributory  Negligence.— The  company  was  held  Dot 
liable  in  the  Inllowiug  iuaranceB:  Whern  the  brakemaa  used  the  end  of  a^ 
switch-chain  to  couple  cars  instead  of  a  coupling-link.  Houston,  etc.,  R. 
Co.  o.  Myera,  S5  Tex.  110;  s.  c,  8  Am.  &  Eny.  R.  R.  Gas.  114.  Where  the 
brakcman  remained  between  the  cars,  which  did  not  couple  readily,  aud  in- 
stead of  stepping  out  endeavored  to  couple  the  cars  while  in  motion.  Held, 
that  the  company  was  not  liable.  Williams  e.  Gentral  R.  Co.  of  Iowa,  4» 
Iowa,  896.  See,  also,  Burlington,  etc.,  R.  Co.  e.  Coates  (Iowa),  10  Am.  A 
Sng.  R.  R.  Cas.  265;  Furgerson  e.  Central  R.  Go.  of  Iowa,  5  Am.  &  Eng.  R. 
R.  Cas.  614.  But  where  coupling  cars  while  in  motion  is  said  to  be  the 
usual  and  almost  the  only  method  of  doing  it.  Bee  Plank  e.  N.  T.,  etc.,  R. 
Co.,  60  N.  Y.  807.  Where  the  brakemaa  stood  on  the  inside  of  the  draw- 
bar while  cou]>ling  cars  standing  on  a  eharp  curve,  and  the  outside  was 
tree  from  danger,  and  the  drawheads,  falling  to  meet,  passed  each 
other  and  crushed  him  to  death,  held,  ihut  plaintiff  was  not  entitled  to- 
recover.  Tuttle  c.  Detroit,  etc.,  R.  Co.,  122  U.  8.  189.  See,  also.  Mo. 
Pac.  R.  Co.  f.  Ljde  (Tex.).  11  Am.  &  Eng.  R.  R.  Cas.  188;  Chicago,  etc..  R. 
Co.  r.  Wsrner,  108  111.  638;  a.  c,  18  Am.  &  Eng.  R.  R.  Css.  100;  Norfolk 
&  W.  R.  Co.  B.  Emmert  (Va.),  3  S,  E.  Rep.  146. 

The  written  contract  with  the  company,  signed  by  the  brakeman,  advising 
him  that  uncoupling  moving  cars  is  dangerous  and  forbidden,  is  admissible 
in  evidence,  not  only  to  show  notice  of  the  danger,  but  also  notice  of  the 
rule  to  the  brakeman.  Sedgwick  e.  Illinois  Cent.  R,  Co.  (Iowa),  84  N.  W. 
Rep.  7B0. 

What  does  not  Amount  to  Contributory  Negligence  on  Part  of  Em- 
ployee.— Going  between  ihe  cars  to  uncouple  ihem,  while  moving  at  an  un- 
uaiiitl  rate  of  s|)et-d,  after  having  signalled  the  engineer  to  slacken  speed,  is 
not  necessarily  contributory  negligence.  Beems  e.  Chicago,  etc.,  R.  Co.,  69 
Iowa.  LW;  s.  c,  10  Am.  &  Erg.  R.  R.  Cas.  658. 

It  is  not  contributory  negligence  in  a  brakeman  to  run  in  between  two 
cars  without  stopping  to  see  whether  or  not  the  drawheads  are  properly  ad- 
jiisied.  King  *.  OliTo,  etc.,  R,  Co.,  14  Fed.  Rep.  277;  a.  c,  8  Am.  &  Eng. 
R.  R.  Cas.  119.  He  has  a  right  !□  assume  that  the  cars  are  in  a  safe  condi- 
tiiin,  and  is  not  obliged  to  stop  and  see  whether  the  bumpers  or  other  appli- 
ances are  safe.  Roberts  e.  Smith,  8  H.  A  N.  213:  Ft.  Wayne,  etc.,  R.  Co. 
11.  Gildersleeve,  83  Mich.  133;  Totten  e.  Penna.  R  Co.,  11  Fed.  Rep.  664. 

In  Snow  V.  Housatonic  R.  Co.  8  Allen  (Mass.),  441;  the  employee,  while 
uncoupling  a  lender  and  a  car,  stepped  with  the  train  while  it  was  slowly' 
moving,  and  his  foot  catching  in  a  hole  in  the  plank  roadbed,  he  was  run 
over.  Held,  that  he  was  acting  in  the  discharge  of  his  duty,  and  if  he  used 
due  skill  and  caution  was  not  negligent. 

Where  a  brakeman,  while  endeavoring  to  couple  cars,  stepped  into  a  hole 
in  the  night  time  and  was  injured.     The  track  was  in  a  defective  condition,. 


^d  by  Google 


MASTER   AKO   SEBVANT — OOCPLIHG   CABS.  167 

and  the  speed  of  the  cars  wu  increased  bj  the  wind.  Seld,  that  he  wis  not 
negligent.  Burd  n.  Chicago,  etc.,  R.  Co.  (Iowa),  8  Am.  &  Sng.  R.  R.  Ca*. 
138.  Bee,  also,  Gardner  v.  Mich.  Cent.  R.  Co.  (Mich.),  24  Am,  &  Gng.  R.  R. 
Cas.  433;  Priogle  «.  Chicago,  etc.,  R.  Co  (Iowa),  18  Am.  Ss  Eog.  R.  R.  Caa. 
91 ;  Lawless  v.  Codq.  River  R.  Co.,  186  Haas.  I ;  s.  c,  18  Am.  &  Eng.  R.  R. 
Caa.  96. 

It  is  not  contributor;  negligence,  per  le,  in  coupling  cars  to  stand  facing 
the  drawbar,  but  it  is  a  question  tor  the  jury.  Belair  v.  Chicago,  etc.,  R. 
Co..  43  Iowa.  403. 

Fellow  Servants. — The  engineer  and  the  car-coupler  have  been  held  to  be 
fellow  servants,  and  the  railroad  company  is  not  habte  for  an  injury  to  one 
caused  by  the  negligence  of  the  other.  Fowler  r.  Chicago  *  N.  W.  R  Co., 
17  Am.  &  Eng.  R,  R.  Cas.  S36;  Henry  v.  Staten  Island  R.  Co.,  2  Am.  & 
Eng.  R.  R.  Cas.  SO;  Smith  e.  Potter,  3  Am.  &  Eng.  R  R.  Cas.  140;  Nash- 
ville, etc.,  R.  Co.  0.  Wheeler,  4-  Am.  &  Eng.  R.  R  Cas.  688;  Randall*. 
Baltimore  &  Ohio  R.  Co.,  IS  Am.  &  Eng.  R.  R.  Cas.  34S;  Nashville,  etc., 
H.  Co.  V.  Wheeler,  15  Am.  &  Eng.  R.  R.  Cas.  SIS;  Harvey  e.  N.  T.  Cent.  & 
H.  H.  R.  Co.,  8  Am.  &  Eng.  R.  R.  Cas.  518.  See,  also,  Webb  e.  Richmond, 
etc.,  R.  Co.  (N.  Car.)  3  8.  E.  Rep.  440. 

It  has  been  held  that  a  car  inspector  is  a  fellow  servant  of  a  brakeman, 
and  the  latter  cannot  recover  against  the  company  for  an  injury  caused  by 
the  car  inspector's  neglect  of  duty.  Smith  v.  Potter  (Mich.),  3  Am.  &  Eng. 
B.  R.  Ca".  UO. 

Bvt  a  difiereot  doctrine  was  laid  down  in  King  e.  Ohio,  etc..  R.  Co.  (C.  C. 
of  Ind,),  8  Am.  A  Eng.  R.  R.  Cas.  119,  whereit  wosheld  by  Qresham,  J.,  that 
a  car  inspector  is  not  the  fellow  servant  in  common  employment  of  a  brake- 
man  io  any  such  sense  as  to  relieve  the  railroad  company  from  liability  for 
injury  to  the  latter  caused  by  the  defective  condition  of  the  coupling  appara- 
tus of  a  car  which  the  car  inspector  had  failed  to  note.  The  courtesy: 
"  The  master's  immunity  is  limited  to  cases  where  the  servants  are  engaged 
in  the  same  common  employment;  that  is  to  say,  in  tbe  same  department  of 
duty.  Such  immunity  does  not  extend  to  cases  where  the  servants  are  en- 
gaged in  departmeutH  essenttaily  foreisn  to  each  other.  A  servant  cannot 
be  neld  to  have  contemplated,  in  the  adjustment  of  his  w^es,  those  dangera 
which  arise  from  the  carelessness  of  fellow  servants,  without  any  reference 
whatever  to  the  nature  of  their  employment  or  duties.  .  .  .  The  master  is 
bound  to  protect  the  servant,  not  against  all  risks,  but  against  risks  which 
could  be  avoided  by  the  exercise  of  reasonable  care  on  the  part  of  the  master. 
The  brakeman's  employment  exposes  him  to  constant  peril  under  the  most 
favorable  conditions.  He  is  expected  and  required  to  act  with  despatch  in 
coupling  and  uncoupling  cars,  and  when  he  is  negligently  required  by  the 
proper  officer  or  agents  to  handle  cars  out  of  repair,  unfit  for  use  and  danger- 
ous, and  in  doing  so  is  injured,  perhaps  for  life,  without  fault  on  his  part, 
he  should  in  justice  have  a  remedy  against  bis  employer." 

This  doctrine  was  also  followed  in  Fay  s.  Minneapolis,  etc.,  R.  Co.,  8 
Minn.  331 ;  a.  c,  11  Am.  &  Eng.  R.  R.  Cas.  193,  where  the  company  was 
held  liable  for  an  injury  to  a  brakeman  in  consequence  of  the  defective  con- 
dition of  the  coupling  attachment  of  a  car  which  he  was  attempting  to 
couple.  The  car  did  not  belong  to  the  company,  but  was  a  foreign  one  in 
its  possessioQ  and  use,  and  the  plaintiff  had  no  knowledge  of  its  defective 
condition. 

What  Injurtfli  are  RItkt  Aitumed  by  Employee  While  Coupling  Cart.— 
See,  generally,  Kelly  e.  Wisconsin  Cent.  R.  Co..  31  Am.  &  Eng.  K.  R.  Cas. 
633;  Gardner  r.  Mich.  Cent.  R.  Co.,  M  Am.  A  Eng.  R.  R.  Cas.  485;  Atchi- 
son, etc.,  R  Co.  p.  Wagner,  83  Kan.  660;  Rodman  e.  Mich.  Cent.  R.  Co., 
17  Am.  &  Eog.  R.  R.  Cas.  S31 ;  Indianapolis,  etc.,  R.  Co.  o.  Planigan,  77 


^d  by  Google 


168         LOUISVILLE  AND   NASHVILLE  B.  CO.  V.  GOWER. 

m.  866;  Norfolk,  etc.,  H.  Co.  t>.  Cotterell  (V*.),  8  a  K.  Rep.  188;  Lalor  e. 
Chicago,  etc.,  R.  Co.,  S3  lit.  40;  Mo.  Pac.  R.  Co.  «.  Callbreath,  6  Tei. 
Law  Bey.  564;  Gibson  tr.  PaciBc,  etc..  R.  Co.,  46  Ho.  168.  See,  also,  Article 
on  Injuriei  bj  Coupling  Cars,  in  4  Am.  &  Bog.  Law  Eoo;. 


LOUISVTLLB  ASD  NaSHTILLS  B.   Co. 


(Adaanet  Oatt,  Tmnvma.     FArtutry  28,  1887.) 

In  an  action  by  a  brakemsn  to  recover  damages  for  iDjuries  received  while 
coupling  cars,  the  trial  court  admitted  in  evideoce  teatimou;  to  show  that 
plainiiff  had  a  wife  and  children.  Defendant  objected  on  the  grouad  that 
the  plaintiff  must  recover,  if  at  all,  for  damage  sustained  b;  him  individu- 
all;,  aed  Dot  that  sustained  b;  bis  family.  This  objection  was  overruled  by 
the  trial  court  with  tbe  remark  that  he  "  did  not  take  that  view  of  it."  Edd, 
that  the  admissiou  of  the  teatimooy  was  erroneous,  and  the  remark  of  the 
court  rendered  it  prejudicial. 

It  is  not  negligence  per  »e  for  a  railroad  company  to  receive  a  car  loaded 
with  lumber  wbicli  projects  over  the  end  of  the  car,  end  the  coupliug  of  such 
cars  is  not  necessarily  the  extra-hasardous  duty  for  the  performance  of  which 
tbe  servant  is  not  presumed  to  contract  in  assuming  the  ordinary  risks  of  the 
service  in  which  he  voluntarily  engages. 

Explaining  to  a  jury  the  "care  of  a  man  at  ordinary  prudence"  as  "just 
such  care  as  one  of  you,  similarly  employed,  would  have  exercised  under  the 
circumstance,"  is  erroneous. 

Appeal  from  circuit  conrt,  Davidson  connty. 
Smith  (&  AUison  for  Louisville  &  N.  K.  Co. 
Dodd,  GvfUd  tSs  2£c  Whirier  for  Gower. 

Snodobabb,  J. — Gower  was  a  brakenian  on  a  freight  train  of 
tbe  LouiBville  &  Naehvilie  E.  Co.,  and  while  in  the  discharge  of 
rAcn.  one  of  hie  duties  as  snch,  that  of  coupling  cat's,  was  ee- 

verelj  injnrcd,  and  brought  this  action  to  recover  damages  for 
the  injnrj  sustained,  in  the  circuit  court  of  Davidson  county.  The 
injury  occurred  at  Petersburg,  Ky.,  on  t!ie  night  of  April  6, 1880. 
About  two  miles  from  this  point  a  car  loaded  witii  lumber  had 
been  taken  into  the  train,  and  at  Petersburg  two  flat  cars  were 
taken  out  of  the  train  and  left.  Tliese  were  put  on  the  side  track, 
and  this  necessitated  the  coupling  of  the  lumber  car  with  the  box 
car.  In  making  this  conpling  the  accident  to  Gower  occurred.  It 
was  his  duty  to  make  the  coupling,  and  he  did  it  without  special 
order.     He  stood  at  the  south  end  of  the  box  car,  signalled  the  en- 


^d  by  Google 


MASTER  AND  SERVANT — COUPLING   CARS.  lOtf 

gineer  to  back  the  lamber  car  to  it,  whicli  was  carefolly  done. 
When  witliin  a  few  feet  of  the  box  car,  the  plaintiS  obeerved  that 
the  plank  projected  over  the  north  end  of  tlie  lumber  car,  the  end 
to  be  COD  pled,  and  that  it  was  neceeearj^  for  him  to  etoop  to  avoid 
it  in  entering  between  tlie  cars  to  make  tlie  coupling.  He  did 
enter  in  tliin  way,  and  made  the  conpling,  while  doing  whicli,  hav- 
ing some  difficulty  in  getting  the  coupling-pin  into  tlie  drawliead, 
he  raised  his  head,  and  was  caught  between  the  box  car  and  the 
projecting  Inmber,  and  badly  injured.  These  are  the  facts  of  the 
case  as  detailed  by  plaintiff  as  a  witness  on  the  trial  before  the  jury. 
He  obtained  a  verdict  and  judgment  for  $d500,  and  the  railroad 
company  appealed.  The  conmiission  of  referees  heard  the  case, 
and  reported  in  favor  of  reversal  upon  several  grounds,  omitting 
others  supposed  by  counsel  of  plaintiff  in  error  to  be  objectionable, 
and  both  parties  except  to  the  report,  and  open  the  whole  case  for 
consideration  by  this  court. 

The  first  error  necessary  to  be  noticed  is  in  the  admission  of  evi- 
dence. The  bill  of  exceptions  shows  that  Dr.  Hampton  was  the 
first  witness  introduced  for  plaintiff.  He  was  asked  if 
plaintiff  liad  a  family,  and  answered  that  he  liad  a  wife  rLiormrt 
and  children.  The  defendant  "objected  to  the  admis-  ii-r  nuiiini' 
sion  of  any  proof  going  to  show  that  phiintiff  had  a 
family,"  stating  ground  of  objection  to  be  that  plaintiff  recovers, 
if  at  all,  for  the  damages  he  has  individiuilly  sustained,  and  not 
that  sustained  by  his  family,  and  that  such  evidence  was  irrelevant. 
The  court  replied :  "  I  do  not  take  that  view  of  it,  and  I  will  allow  the 
plaintiff  to  prove  that  he  has  a  wife  and  childi'en.  Bnt,  if  counsel 
for  defendant  desire  to  a^ue  the  question  hereafter,  I  will  hear 
them ;  and,  if  I  eonclode  I  am  in  error,  I  can  then  exclude  it  from 
the  jury."  To  which  action  of  the  court  defendant's  counsel  ex- 
cepted. They  did  not  again  call  it  to  the  attention  of  the  court. 
The  commission  of  refei-ees  report  this  to  be  error,  and  counsel  of 
Gower  except.  It  is  not  seriously  insisted,  and  indeed  cannot  be, 
that  the  eviaence  was  relevant,  but  they  interpose  two  objections 
to  a  reversal  in  consequence  of  it :  First,  that  it  is  not  material, 
and  could  have  had  no  prejudicial  effect;  and,  second,  that  the 
same  evidence  was  admitted  without  objection  w^^cn  given  by 
anotlier  witness. 

In  answer  to  the  first  objection  it  is  clear  that  it  was  material 
when  received  under  the  opinion  of  the  court.  The  coaneel  for 
the  railroad  company  had  pnt  their  objection  upon  the  ground 
that  the  recovery  was  for  the  damaffes  Eustained  by  plaintiff  indi- 
vidnally,  and  not  that  sustained  by  hie  family.  The  court,  by  his 
reply,  that  "  he  did  not  take  that  view  of  it,"  and  by  hia  action  iid- 
mitting  it,  with  such  statement,  to  the  jury,  necessarily  impressed 
them  with  the  belief  that  the  recovery  would  be  affected  by  tJiat 


^d  by  Google 


170         LOUISVILLB   AND   NASHVILLE  R.  CO.  V.  GOWEE. 

evidence.  It  was  equivalent  to  a  charge  tliat  the  lose  to  the  fam- 
ily could  be  considered  by  tliein.  It  is  well  settled  that  do  one 
erse  can  recover  in  life  than  tlie  one  injured  in  cases  of  this  char- 
acter, and  he  only  for  the  damages  winch  lie,  and  not  others,  has 
snstuined.  Under  vection  3130  of  the  Code,  providing  that  the 
right  of  action  which  a  person  who  dies  from  injuries  received 
from  another,  or  whose  death  is  canaed  by  the  wrongful  act, 
omission,  or  killing  by  another,  would  have  had  against  the  wrong- 
doer in  case  death  had  not  ensued,  shall  not  abate  or  be  cxtio- 
gaished  by  his  death,  bnt  shall  pass  to  his  widow,  and,  in  case  there 
IB  no  widow,  to  his  children,  or  to  his  personal  representative,  for 
the  benefic  of  his  widow  or  next  of  km,  free  from  the  claims  of 
creditors,  it  was  at  one  time  held  by  this  court  that  the  recovery 
might  be,  in  snch  action,  for  the  damages  to  the  deceased,  and  the 
damages  resulting  from  his  death  to  the  parties  for  whose  benefit 
the  right  of  action  survives.  Railroad  Co.  v.  Prince,  2  Heisk.  680, 
and  otlier  cases.  Yet  this  doctrine,  not  in  accord  with  the  eariicet 
construction  of  the  statute  on  this  point  (Railroad  Co.  v.  Burke,  6 
Cold.  46),  was  i-ejected,  and  in  the  last  reported  cases  (prior  to  the 
act  of  1S83,  c.  186)  it  was  nniformly  held  by  this  court  that  the 
first  construction  was  the  correct  one,  and  that  the  damages  recov- 
erable were  such  only  as  the  injured  party  had  himself  sustained. 
Itailroad  Co.  v.  Smith,  9  Lea,  470;  Kailroad  Co.  i).  Pounds,  11 
Lea,  129.  But  whatever  Suctuation  in  judicial  opinion  prevailed 
as  to  the  recovery  which  might  be  had  by  the  widow  or  the  chil- 
dren or  the  personal  representative  in  an  action  brought,  after 
death,  by  either  of  these  representatives  for  the  damages  resulting 
from  the  death,  it  was  never  held  that  the  injured  party  while 
living  conld,  for  an  injury  to  himself,  recover  any  more  or 
other  damages  than  those  resulting  to  him  from  the  injury  com- 
plained of.  The  indicated  view  of  the  circuit  judge  in  tlie  admis- 
sion of  this  evidence  was  erroneous,  and  it  made  the  error,  for  the 
reasons  stated,  a  very  material  and  prejudicial  one. 

As  to  the  second  answer  to  tlio  objection,  that  another  witness 
was  permitted  to  give  same  testimony  without  exception,  it  is 
sufficient  to  say  that  defendant  having  excepted  to  it  when  the 
fii-st  witness  was  examined,  and  having  had  his  exception  over- 
ruled, it  was  neither  necessary  nor  proper  for  him  to  repeat  the 
exception.  One  ruling  on  one  question  is  enough,  and  a  repetition 
of  similar  exceptions  is  not  to  be  required,  if,  indeed,  to  be  tol- 
erated. 

Tlie  next  most  material  error  in  the  case,  and  first  of  two  only 
itacDVTM  ci«  necessary  to  be  noticed,  though  there  are  other  errors  in 
iwa  LOiB  wot  the  charge,  is  the  instruction  to  the  jury  on  the  ques- 
™"  """■  tion  of  negligence.  The  circuit  judge  charged  the 
jury  that  "  if  the  lumber  car  was  so  loaded   that   the  ends   of 


^d  by  Google 


MASTER  AND  SERVANT — COUPLING  0AE8.  171 

the  lumber  projected  some  eighteen  inches  over  the  rear  end  of 
the  ear,  and  that  caased  the  act  of  coupling  this. car  to  another  to  be- 
attended  with  more  tliaii  ordinary  danger,  tiiiB  was  negligence  in 
the  agents  o£  tlie -company  who  bo  loaded  it ;  and  if  the  conductor 
accepted  it  so  loaded,  and  attaclied  it  to  his  train,  this  was  an  act 
of  negligence;  and  if  an  injury  grew  directly  ont  of  tli is  negli- 
gence to  the  plaintiff,  and  plaiiitin  did  not  materially  contribute 
to  it,  he  is  entitled  to  be  compenBated  in  damages."  And  again  : 
"  It  is  admitted  that  the  lumber  projected  some  eighteen  inches 
over  the  rear  end  of  the  lumber  car,  and  that  this  rendered  the 
act  of  coupling  this  car  to  another  car  extra-hazardous.  I  charge 
you  that  it  was  an  act  of  negligence  on  the  part  of  the  conductor 
to  have  accepted  a  car  so  lo;iaed ;  and  if  an  injury  grew  out  of  this 
act  of  negligence  to  plaintiff  he  is  entitled  to  recover,  unless  he 
himself  was  guilty  of  such  negligence  that  bnt  therefor  the  injury 
wonld  not  have  liappened  ;  having  in  mind  that,  if  he  was  ac- 
quainttid  with  the  extra  hazard  in  making  the  coupling,  he  was 
required  to  exercise  a  degree  of  care  proportioned  to  the  danger  of 
the  risk  reqnired  to  be  assumed."  Or,  in  other  words,  the  court 
told  the  jury  that  tlie  reception  of  a  car  so  loaded  that  the  lumber 
projected  eighteen  inches  over  the  end  of  it  was  negligences^  ae, 
and  that  this  was  an  extraordinary  hazard,  to  whicli  the  railroad 
company  must  not  subject  its  employees. 

This  IS  not  the  law.  Day  v.  Railway  Co.,  2  Am.  &  Eng.  B.  R. 
Cas.  136;  Railway  Co.  v.  Husson,  12  Am.  &  Eng.  R.  R.  Gas.  24. 
Nor  is  the  conplmg  of  such  cars  necessarily  the  extrahazardous 
dnty  for  the  performance  of  which  the  servant  is  not  presumed  to 
contract  in  assuming  the  ordinary  hazards  and  risks  of  the  service 
in  which  he  voluntarily  engages.  It  may  be  extra-hazardous  in  the 
sense  that  it  is  not  a  coupling  ordinarily  or  frequently  reqnired, 
bat  it  is  one  incident  to  the  duties  of  tlie  place,  and  not  more  haz- 
ardous, as  a  matter  of  law,  than  he  stipulates  to  perform  on  the 
occasions,  however  i-are  or  frequent,  when  such  conplings  become 
necessary  in  the  variety  of  shipments  made  to  meet  the  demands 
mnd  necessities  of  trade  and  transportation.  Lumber  of  nil  kinds, 
iron,  steel,  and  linished  structures  must  often  necessarily  be  tran^ 
ported  on  caiB  of  shorter  length  than  the  material  transported.  It 
may  not  be  practicable  or  proper  to  solidify  the  train  by  loading 
npon  connected  cars,  and  it  must  of  necessity  i-esult  that  this  load- 
ing will  project,  and  still  tlie  cars  require  to  be  coupled.  To  hold 
that  euch  a  service  is  not  to  be  anticipated  by  a  railroad  employee 
ae  an  occasional,  incidental,  though  extremely  hazardous  duty  to 
be  performed,  woald  be  to  do  so  in  manifest  disregiird  of  the  de- 
mands of  the  age  upon  transportation  lines,  and  their  common 
and  well- understood  service  in  conformity  to  such  requii-ements. 
The  manner  in  which  this  car  was  loaded  was  a  fact  proper  for 


^d  by  Google 


172        LOUISVILLE  AKB  KASHVILLB  B.  00.  V.  OOWEB. 

averment  in  pleading,  and  to  be  taken  into  consideration  in  con- 
nection with  all  the  other  facts  of  the  coupling,  and  affecting  it, 
to  determine  whether  the  company  was  gailtj  of  such  negligence 
as  made  it  liable,  bnt  the  loading  was  not  of  itself  negligence,  nor 
the  acceptance  of  the  car  bo  loaded  by  others. 

The  cliarge  was  otherwise  incorrect  and  misleading,  particularly 
in  defining  the  care  necessary  to  hare  been  exercised  by  plaintiff, 

Gower,  in  order  to  entitle  him  to  a  recovery.  The  court. 
cuDuT  ciu  after  telling  the  jury  that  "  it  was  the  duty  of  plaintifi 

to  exercise  Bocb  a  degree  of  care  in  making  tire  con]>- 
ling  as  a  man  of  ordin'ary  prndence  would  have  done,"  adds :  "  Just 
such  care  as  one  of  yon,  similarly  employed,  wonld  have  exercised 
under  such  circumstances.  If  lie  exercised  that  degree  of  care, 
and  was  nevertheless  injured,  he  is  entitled  to  your  verdict."  The 
cliarge,  as  to  exercise  of  snch  care  as  a  man  of  ordinary  prndence 
would  have  done,  was  correct,  bnt  it  was  thonght  not  full  enough 
by  the  judge,  who  illustrated  what  he  meant  by  reference  to  the 
care  which  each  one  of  the  jurymen  would  have  exercised.  Eis 
charge,  so  limited,  was  erroneous.  It  does  not  appear  that  all  or 
or  any  of  the  members  of  the  jury  were  men  of  ordinary  prndence, 
and  yet  the  judge  tells  them  that  what  he  means  by  the  exercise 
of  such  care  as  a  man  of  ordinary  prudence  would  have  exercised 
is  that  it  was  the  exercise  of  such  care  as  one  of  tliem  would  have 
exercised  if  similarly  situated.  Under  this  instrnction,  if  any 
member  of  the  jnty  thonght  he  would  have  dope  what  Gower  did 
in  tiie  coupling  he  would  of  course  have  determined  that  Gower 
acted  with  the  care  required,  and  was  entitled-  to  recover.  This 
illustration  used  to  define  wiiat  he  meant  by  "the  care  of  a  man 
of  ordinary  prudence,"  and  thereby  becoming  its  definition,  was 
erroneous.  The  care  that  he  was  reqnired  to  exercise  waB  that  of 
a  man  of  ordinary  prndence  in  that  dangerous  situation,  and  not 
"just  such  care  as  one  of  the  jury,  similai'ly  situated,"  would  have 
done,  be  that  much  or  little,  as  each  member  might  be  very  prudent 
or  very  imprudent. 

The  judgment  must  be  reversed,  with  costs,  and  the  case  re- 
manded for  a  new  trial. 

Injuries  Recalvttd  from  Coupling  Cart  with  Projaeting  Loadi.— See  next 
case  and  note. 

Qenerally  a>  to  Coupling  Can. — Bee  Darracuttt  e.  Cbeupeake,  etc,  R. 
Co.,  and  note,  tupra. 


^d  by  Google 


MASTEB  AND  SEBVAKT — OOUPLIHG  OAES. 


Haugh,  Admr., 

V. 

Chioaoo,  Book  Island  and  Paodto  R.  Oo. 

{Adtanee  (Jam,  loaa.     Oetabtr  21,  1887.) 

According  to  its  ciutom  a  railroad  sent  a  car  to  a  lomber  firm  to  be  loaded. 
The  car  was  improperly  loaded,  the  lumber  projectiog  too  far  forirard.  After 
the  car  waa  loaded,  the  comjunj  desiring  to  put  it  in  a  train,  plaintiff's  in- 
testatA,  a  yardmau  in  derendant's  employ,  was  ordered  to  couple  it  to  the 
trail).  The  order  naa  unqualified,  and  given  at  the  last  minute,  as  tbe  car 
was  to  be  put  immediately  into  the  train.  It  was  night,  and  tbe  projecting 
lumber  was  seen  by  deoeaaed  only  aa  he  approached  it  by  the  light  of  hia 
laatem.  In  endeavoring  to  make  the  coupling  he  was  caught  between  the 
projecting  lumber  and  the  locomotive  tender  and  killed.  In  an  action  by 
nil  admioiatrator  to  recover  damagea.     Bdd  : 

1.  That  the  deceased  had  a  light  to  presume  that  the  car  waa  properly 
loaded,  and  be  was  not  guilty  of  contributory  negligence  in  not  clasely  ex- 
mmining  it. 

2.  That  it  made  no  diCerence  whether  the  car  was  in  fact  loaded  by  men 
ia  the  employ  ot  the  defendant  or  not ;  the  loading  waa  the  act  of  the  defend- 
ant, and  it  was  ita  duty  to  see  that  it  waa  properly  done. 

Appeal  from  district  conrt,  Scott  connty. 

Action  for  a  perBonal  injury  to  the  plaintiffs  intestate,  Dennis 
Hangli,  while  engaged  as  the  emploveeof  the  defendant  in  conpjing 
cars.  Tliere  waa  a  trial  to  ajnry,  and  verdict  and  judgment  were 
rendered  for  the  plaintiff.     The  defendant  appeals. 

Cook  <fe  Dodge  for  appellant. 

Oatmon.  c6  McGuirk  for  appellee. 

Adaus,  C.  J. — On  the  thirtieth  of  Augnst,  1884,  tbe  plaintifiPs 
intestate,  Dennis  Haugh,  was  killed  while  attempting  to  conplo  to 
the  defendant's  train  a  car  loaded  witli  lumber,     T!ie  vmn. 

accident  occurred  by  reason  of  tlie  fact  that  the  lumber  was  so 
loaded  as  to'  project  too  far  forward.  Haugh  approaciied  the 
loaded  car  riding  upon  the  foot-board  fixed  across  the  rear  end  of 
the  tender  and  was  caught  between  the  projecting  iiiinber  and  tlie 
tender.  He  was  himself  controlling  the  movement  of  the  engine, 
through  signals  to  the  engineer,  and  no  fault  is  chai'geable  to  the 
latter.  The  plaintiff  contends  that  the  company  was  responsible 
for  the  improper  way  in  which  the  lumber  was  loaded ;  and  the 
company  contends  that  the  deceased  was  negligent  in  not  discover- 
ing that  the  lumber  was  improperly  loaded,  and  in  attempting  to 


^d  by  Google 


174         HAOGH   V.    CHICAGO,   HOCK   ISLAND,  ETC.,  B.  CO. 

make  the  coapling  in  the  position  in  whieb  he  was.  The  loaded 
«ar  Gtood  upon  a  side  track  in  tlie  city  of  Davenport.  It  bad  been 
loaded  by  the  owTiere  of  the  lumber,  teator  &  Son,  a  fiim  of  lum- 
ber iiici'chaiitg.  They  had  given  the  company  tbe  naual  notice  that 
the  car  was  ready.  On  the  night  of  tlie  accident  the  deceaBcd  and 
one  Stapleton,  both  engaged  aa  yardmen,  were  directed  to  bring 
the  car  from  the  side  track,  and  the  accident  occarred  in  tlie  at- 
tempted execntioD  of  this  order. 

Several  questions  are  diecusaed,  bat  if  a  certain  inetrnotion  given 

by  the  court  ie  correct,  it  appeara  to  ns  that  there  is  no 
ooNrAKT  u-  error  in  the  other  matters  complained  of.  That  inetruc- 
LOiDOBiorctB.  tion  IB  in  these  words:     "  No  question  is  made  nnder 

the  evidence  but  that  the  car  in  question  was  loaded 
by  Keator  &  Son  at  their  own  yard,  said  car  being  sent  there  for 
that  purpose  in  accordance  with  a  common  custom,  whidi  cuetom 
also  required  the  defendant  to  send  fur  the  car  and  put  it  into  the 
train  when  it  was  loaded.  Frgm  the  standpoint  of  the  law  it 
makes  no  difference  nnder  tlie  circumstances  whether  it  was  in  fact 
loaded  by  men  in  the  employ  or  pay  of  the  defendant  or  not;  it 
was  essentially  the  act  of  the  defendant,  and  stands  iu  pi-ecisely  the 
«ame  situation  as  if  actually  loaded  by  men  in  the  pay  of  the  defend- 
ant." The  giving  of  this  inetniction  is  assigned  as  error.  The 
instruction  proceeds  upon  the  theory  that  the  company  owed  the 
-deceased  the  duty  of  seeing  that  tlie  car  was  properly  loaded,  bo 
far  as  the  safety  of  the  deceased  was  concerned,  and  that  it  most 
be  deemed  to  have  adopted  the  acts  of  Keiitor  &  Son  in  the  load- 
ing of  the  car.  The  company  denies  that  it  owed  the  deceased 
6uch  duty,  and  denies  that  it  was  responsibie  for  the  manner  in 
which  the  car  was  loaded.  It  admits  that  no  car  loaded  as  this  was 
should  be  taken  into  the  train,  but  its  position  is  that  it  can  act  only 
through  employees,  and  that  the  deceased  was  the'  sole  employee 
charged  witli  the  duty  of  discovering  whetlier  the  car  was  properly 
loaded  or  not.  • 

A  targe  amount  of  evidence  was  introdnced  tending  to  show 
that  the  deceased  was  by  virtue  of  his  employment  and  mode  of 
<]otng  business  charged  with  some  duty  in  respect  to  the  ex»niin&- 

tion  of  tlie  car  and  the  manner  in  which  it  was  loaded. 
Hiom  TO  ii-  It  was  also  sliown  that  the  company  did  not  have  an 
11.9  pito™ii.T  inspection  made  of  the  care,  loaded  under  siniijjir  cii- 

cumstances,  until  tlie  yardmen  were  sent  to  bring  them 
from  the  tide  track.  But,  in  our  opinion,  the  instrnction  given  is 
not  inconsistent  with  sneh  evidence.  Every  employe  must  keep 
iiis  eyes  open,  and  exercise  reasonable  care  to  guard  against  danger 
to  himself.  Some  examination  of  all  tliat  he  has  to  do  with  may 
without  question  be  required  of  him,  if  it  is  practicable  for  him  to 
make  it,  aud  this  is  eo  notwithstanding  tbe  company  may  have  owed 


^d  by  Google 


MASTER   AND  SERVANT — CODPLING   CABS.  175 

liim  the  daty  of  making  a  prior  essimi nation.  We  do  not  there- 
fore attach  much  importance  to  the  evidence  as  to  tlie  duty  of  the 
deceased  to  examine  the  car,  and  the  way  it  was  loaded,  before  at- 
tempting to  couple  to  it.  Tiie  company  mifiht  have  set  up  this 
claim  without  evidence,  bpcanse  tliiB  dnty  would  be  impoBcd  by  law 
from  the  very  nature  of  his  employment.  He  was  bound  to  exer- 
cise reasonable  care..  But  wiiat  would  be  reasonable  care  would  be 
greater  or  leae  according  to  circnmstances.  He,  of  coiirse,  saw  the 
car  and  saw  tiie  lumber,  but  he  did  not  go  quite  to  the  car  before 
mounting  the  foot-board  of  tlie  tender,  and  lie  saw  tlie  car  only  as 
he  approached  it,  and  by  the  light  of  his  lantern  which  he  held  in 
his  band.  If  he  bad  appreciated  his  danger,  ho  conld  by  a  signal 
have  stopped  the  engine,  which  was  moving  very  slowly.  It  may 
be  that  a  man  of  ordinary  prudence  would  have  been  moi-e  watch- 
fnl,  but  this  was  a  question  for  the  jury.  In  determining  it  they 
might,  we  think,  properly  consider  that  he  had  a  tight  to  assume 
that  the  company,  through  some  one,  had  examined  the  car  and  the 
way  It  was  loaded. 

We  arrive  at  this  conclnsion  partly  from  the  character  of  the  or- 
der itself.  It  was  an  unqualified  order  to  bring  out  the  ear.  It 
carried  upon  its  face  the  implication  that  the  company  considered 
the  car  ready  to  be-  brought  out.  Its  unqualified  character  is  not 
-oonsistent  with  the  idea  tliat  the  deceaseo  was  charged  with  the 
primary  and  sole  duty  of  determining  whether  it  was  ready  to  be 
broagiit  oat.  Besides,  it  was  giren  at  the  last  minute.  The  car 
was  to  be  put  immediately  into  tiie  train  for  transportation.  Wo 
-do  not  understand  it  to  be  claimed  that  Che  car  could  not  have  been 
reloaded  and  pot  into  that  train.  The  commonoBt  business  prin- 
ciples would  suggest  that  the  car  should  liave  been  examined  iu 
time  to  en.-kble  it  to  go  in  Che  train,  and  with  the  dispntch  which  the 
shippers  desired.  We  think  that  the  deceased,  in  the  absence  of 
any  express  information  to  the  contrary,  had  a  riglit  to  take  this 
view  01  the  situation,  and  that  the  care  and  diligence  which  conld 
be  required  of  him  should  be  measured  by  such  fnot.  While  he 
was  bound  to  look  at  the  ear  and  himber,  he  was  not  bound  to  make 
the  strict  examination  that  he  wonld  have  been- if  he  had  been  told 
that  ho  was  to  make  the  pnmary  and  sole  examination,  tinder 
this  view  it  appears  to  us  that  the  instruction  set  out  is  correct, 
and  that  there  is  no  error  in  the  other  rulings  complained  of. 

Affirmed, 

Injuryto  Employees  CauMd  by  Coupling  Cart  with  Projecting  Loads.— See 
AtchiaoD,  etc..  It.  Co.  e.  Plunkett,  3  Am.  &  Eng.  R.  R.  Cas.  127;  Day  v. 
Toledo,  etc,  R.  Co.,  %  lb.  136;  NortherD  Cent.  R.  Co.  v.  Hussan,  13  lb.  341; 
Louisville,  etc.,  R.Co.  e.  Brice,  2S  lb.  C43;  Brown  «.  AtchiBOn,  etc.,  R.Co.,  IS 
lb.  371. 

Generally,  u  to  coupling  can,  see  Dnrr&cutta  e.  Chesapeslce  R.  Co.,  and 
-note,  lupra. 


^d  by  Google 


176     LITTLE  BOCK  AKD  FOET  SMITH  H.  00.  V.  E0BANK8. 


LriTLB  Book  and  Fobt  Shtth  B.  Oo. 

V. 

'EuBASKB,  Admz. 
(Adtianet  Cat,  Arhanxu.     MarA  12,  1887.) 

A  contract  by  which  a  penoD,  when  he  enteretheemploy  of  a  railroad  com- 

GDj,  "agrees  with  said  railwaj,  in  consideration  of  such  employment,  that 
will  take  upoD  himself  all  risks  incident  to  his  position  on  the  road,  and 
will  in  no  ca^e  hold  the  company  liable  (or  any  injury  or  damage  he  may 
Bustt^n,  in  his  person  or  otherwise,  by  accidents  or  coUiaions  on  the  trains  or 
road,  or  which  may  result  from  defective  machinery,  or  carelessness  or  mis- 
conduct of  himself  or  any  other  employee  and  servant  of  the  compa'ny,"  b 
not  binding  on  him  so  as  to  relieve  the  company  from  liability  for  an  acci- 
dent caused  by  its  failure  to  repair  its  road. 

In  an  action  against  a  railroad  to  recover  damages  for  its  negligence  result- 
ing in  the  death  of  plaintiff's  intestate,  it  was  alleged  in  the  complaint  that 
the  defendant  had  constructed  on  its  mad  a  switch  and  a  frog  which  was  so 
worn  and  defective  as  to  render  it  unsafe  for  use,  and  that  by  reason  thereof, 
plaintiff's  intestate,  while  in  the  performance  of  his  duty  as  brakeman,  was 
thrown  from  the  car,  run  over,  and  killed.  PlHintifTs  evidence  only  went  to 
show  that  the  switch  rail  was  a  little  lower  than  the  other  rail,  but  did 
show  that  this  could  be  remedied.  It  was  sho^n  by  the  defendant  that  it 
was  necessary  to  have  the  snitch  rail  lower  than  the  main  rail.  Sdd.  that 
there  was  no  evidence  to  show  that  the  appliance  was  defective,  and  the  ac- 
cident muBt  be  ascribed  to  the  ordinary  risks  incident  to  deceased's  employ- 
Where  a  defective  track  is  alleged  to  have  been  the  cause  of  an  accident  It 
isennophto  prove  such  a  state  of  facts  as  to  the  condition  of  the  track 
shortly  before  or  after,  as  will  induce  a  reasonable  presumption  that  the  con- 
dition in  unchanged ;  but  evidence  of  the  condition  three  years  before  trial, 
and  twenty-one  months  after  the  accident,  is  inadmissible. 

Con trihiitory  negligence  must  be  affirmatively  proved,  as  it  will  be  pre- 
sumed that  the  injured  party  was  in  the  eierciae  of  due  care  until  the  con- 
trary is  made  to  appear.  And  it  is  not  sufScient  to  establish  contributory 
nciiii((ence  on  the  part  of  the  injured  brnkcman  that  he  exchanged  places 
with  one  of  hisfellow-brakemen  without  orders  from  the  conductor,  although 
it  is  probable  he  would  not  have  been  injured  had  he  remained  in  the  posi- 
tion to  which  be  had  been  assigned;  it  not  appearing  that  the  place  he  as- 
sumed was  more  dangerous  than  the  one  be  vacated. 

Appkal  from  circuit  court,  Franklin  eoantj. 

X  M.  Moore  for  appellant. 

T.  B.  Mao-tin  and  £S.  II.  Maihes  for  appellee. 

Smith,  J. — Appellee,  ae  administratrix  of  J.  0.  Eubanks,  Boed 


^d  by  Google 


MASTJ5B  AND  SEBVAHT — DEFECTIVE  TRACK.  177 

appellant  in  the  Franklin  fiircnit  conrt,  alleging  tbat  she  was  mother 
of  deceased,  and  administratrix,  etc. ;  that  on  the  aev-  facts 

enth  oi  October,  1884,  Iier  intestate  was'  employed  ander  a  con- 
tract aB  brakeman  on  appellant's  railway,  and  that  on  or  before 
that  time  appellant's  railway,  at  tkb  town  of  Ozark,  was  in  a  de- 
fective condition,  in  this:  "The  defendant  had  cotistructed  on  its 
said  road,  and  as  a  part  of  it,  on  the  track  thereof,  at  said  place, 
a  switch  and  a  frog,  which  was  so  worn,  ill-constructed,  and  de- 
fective as  to  render  it  nnsafe  and  unfit  for  use."  The  complain- 
ant allies  knowied^  by  defendant  of  these  defects,  and  that  by 
reason  thereof,  and  the  unsafe  condition  of  the  road  at  that  point, 
and  appellant's  negligence,  her  intestate,  while  in  the  performance 
of  his  duty  as  brakeman  under  his  contragt,  was  thrown  from  the 
ear,  run  over,  and  killed.  The  answer  denies  that  the  switch  or 
frog  was  defective,  ill  constructed,  or  unfit  for  use,  or  that  plain- 
tifPs  intestate  was  thrown  from  the  car  and  killed  by  reason  of  any 
each  defects ;  denies  that  deceased  was  free  from  negligence ;  and 
alleges  that  his  death  was  caused  by  negiigence  on  his  part.  The 
answer  also  sets  npand  relies  upon  the  following  contract  executed 
by  deceased  liefore  his  employment  by  defendant  as  a  release  of 
liability.  "  Clinton  EubanKs,  having  been  employed,  at  his  re- 
quest, by  the  Little  Rock  &  Fort  Smith  ft.  in  the  capacity  of 
brakeman,  hereby  agrees  with  said  railway,  in  consideration  of 
Buch  employment,  that  he  will  take  upon  himself  all  risks  incident 
to  his  position  on  the  road,  and  will  m  no  case  hold  the  company 
liable  for  any  iniary  or  damage  he  may  sustain,  in  his  person  or 
otherwise,  by  accidents  oi  collisions  on  the  trains  or  road,  or  which 
may  result  from  defective  machinery,  or  carelessness  or  miscon- 
duct of  himself  or  any  other  employee  and  servant  of  the  com- 
pany." The  issues  were  submitted  to  a  jury,  which  returned  a 
verdict  for  the  plaintiff  for  $9360,  upon  which  judgment  was  en- 
tered. A  motion  for  a  new  trial  was  subsequently  overruled,  and 
a  billof  exceptions  was  sigued  saving  the  points  hereinafter  noticed. 

1,  The  execution  of  the  contract  copied  above  was  admitted  by 
the  plaintiff.  But  the  court  refased  this  prayer  of  the 
defendant:  "'If  you  find  that,  before  entering  the  serv-  EJISmn  '"" 
ice  of  defendant,  deceased  executed  the  release,  a  copy  otAid!*™'" 
of  which  is  set  out  in  defendant's  answer,  yon  are  in- 
atmcted,  that  by  reason  of  said  release,  plaintiff  will  be  precluded 
from  recovering  anything  in  this  suit,  and  you  will  find  for  de- 
fendant." 

A  common  carrier  or  a  telegraph  company  cannot,  by  precon- 
tract with  its  customers,  relieve  itself  from  liability  for  its  own 
neg1i)fent  acts.  This,  however,  may  be  on  the  grounds  of  its  pub- 
lic employment.  Bailroad  Co.  v.  Lockwood,  17  Wall.  357:  Penn- 
eylvania  R.  Co.  v.  Butler,  57  Pa.  St.  335 ;  Little  Rock,  M.  K.  & 
81  A.  ,&  E.  R.  Oaa.— ISl 


^d  by  Google 


178      LtTTLE   IKICK   AND   FOUT   SMITH   B.  CO.  V.  EUBAXKS. 

T.  Co.  V.  Talbot,  39  Ark.  523;  6.  c,  18  Am.  &  Eng.  R  R.  Cas.  598 ; 
St.  Louis,  I.  M.  &  S.  R.  v.  Leaser,  46  Ark.  236;  1  WLart.  Cont. 
§  438.  The  validity  of  the  contract  before  lis  is  not  affected  by 
ench  COD  side  ration  B.  The  relation  eitisting  between  the  parties  to 
it  is  essentially  a  private  relatioii,^that,  namely,  of  master  and 
servant.  And  the  qaestioD  is  whether  a  servant  employed  in  the 
operation  of  daneerons  machinery  can  waive  in  advance  the  duties 
and  liabilities  wnich  the  master  owes  him,  and  which  do  not  de- 
pend on  contract,  but  spring  ont  of  the  relation  iteelf.  Of 
coarse,  if  he  can  waive  them  so  as  to  bind  himself,  a  waiver  vill 
also  bar  his  personal  representative ;  for  the  personal  representa- 
tive only  succeeds  to  the  right  of  action  which  the  deceased  woald 
have  had  bnt  for  his  death. 

In  1S80,  the  English  parliament  passed  the  "  employers'  liability 
act,"  the  object  of  which  was  to  make  employers  liable  for  injuries 
to  workmen  caused  hy  the  negligence  of  those  having  the  super- 
vision and  control  of  them.  In  Griffiths  v.  Earl  of  Dudley,  9  Q. 
B.  Div.  357,  it  was  held  that  a  workman  might  contract  himself 
and  his  representatives  out  of  the  benefits  oi  this  act.  An  oppo- 
site conclusion  has  been  reached  by  the  supreme  courts  of  Otiio 
and  Kansas.  They  hold  that  it  is  not  competent  for  a  railroad 
company  to  stipulate  with  its  employees,  at  the  time  of  hiring 
them,  and  as  part  of  the  contract,  that  it  shall  not  be  liable  for 
injuries  caused  by  the  carelessness  of  other  employees.  Lake 
Shore  &  M.  S.  R.  Co.  v.  Spangler,  28  Am.  &  Eng.  B.  R.  Cas. 
319  (Sop.  Ct.  Ohio,  1886) ;  Kansas  Pac.  R.  Co.  v.  Peavey,  29  Kan. 
169,  11  Am.  &  Eng.  R.  R.  Cas.  260,  44  Amer.  Rep.  630.  In  the 
notes  to  the  last-mentioned  case,  as  reported  in  the  two  series  of 
reports  last  cited,  the  substance  of  Griffiths  v.  Earl  of  Dudley  is  set 
oat.  This,  however,  is  not  precisely  the  same  question  we  have 
to  deal  with  ;  for  the  negligence  of  a  fellow-servant  is  not  in  fact 
and  in  morals  the  negligence  of  the  master,  although  by  virtue  of 
a  statute  it  may  be  imputed  to  the  master.  It  is  impossible  for  the 
master  always  to  be  present  and  control  the  actions  of  his  serv- 
ants. Hence  a  stipulation  not  to  be  answerable  for  their  negli- 
gence beyond  the  selection  of  competent  servants  in  the  first  in- 
stance, and  the  discharge  of  .such  as  prove  to  be  reckless  or  incom- 
petent, might  be  upheld  as'reafionaole,  notwithstanding  a  statute 
might  abolish  the  old  rule  of  non-liability  for  the  acts  and  omissions 
of  a  co-servant.  But  the  supreme  court  of  Georgia  have,  in  several 
cases,  sustained  contracts  like  the  one  before  ns  as  legal  and  binding 
upon  the  employee,  so  far  as  it  does  not  waive  any  criminal  neglect 
of  the  employer.  The  effect  of  these  decisions  is  that  the  servant 
of  the  railroad  company,  for  instance,  not  only  takes  upon  himself 
the  incidental  risks  of  the  service,  but  he  may  by  previous  contract 
release  the  company  from  its  duty  to  furnish  him  a  safe  track,  safe 


^d  by  Google 


MA9TKR  AND  SERVANT — DEFECTIVE  TRACK.  179 

cars,  macliiner;,  and  materialB,  and  suitable  tools  to  work  with. 
Western  &  A.  E.  Co.  v.  Bishop,  50  Ga.  465;  Western  &  A.  E. 
Co.  V.  Stron:^,  52  Ga.  461 ;  Galloway  v.  Western  &.  A.  R.  Co.,  57 
Ga.  512.  On  the  other  band,  in  Koesner  v.  Hermann,  10  Bliss. 
486,  8  Fed.  Rep.  782,  a  contract  by  a  master  against  hie  own  negli- 
sence  was  declared  to  be  void  as  against  public  policy ;  Gresham, 
J.,  saying:  "If  there  was  no  negligence,  the  defendant  needed  no 
contract  to  exempt  from  liability ;  if  be  was  negligent,  the  contract 
set  ont  in  his  answer  will  be  of  no  avail."  Compare  Memphis  & 
C  E.  Co.  V.  Jones,  2  Head,  517,  where  it  was  decided  that  such  a 
contract  would  not  protect  the  master  against  gross  negligence. 

It  is  an  elementary  principle  in  the  law  of  contracts  that  '■  modua 
^t  conventio  vincunt  l^em-,  — the  form  of  agreement  and  the  con- 
vention of  parties  override  the  law.  But  the  maxim  is  not  of  nni- 
versal  application.  Parties  are  permitted,  by  contract,  to  make  a 
law  for  themselves  only  in  cases  where  their  agreements  do  not 
violate  the  express  provisions  of  the  law,  nor  injurionsly  afect  the 
interests  of  the  public.  Broom,  Leg,  Max.  *543 ;  Kneettle  v.  New- 
comb,  22  N.  Y.  249.  Our  constitution  and  laws  provide  that  all 
railroads  operated  in  this  State  shall  be  responsible  for  all  damages 
to  persona  and  property  done  by  the  running  of  trains.  Const. 
1874,  art.  17,  §  12;  Mansf.  Dig.  §  5337.  This  means  that  they 
shall  be  reeponaible  only  in  cases  where  they  have  been  gnilty  of 
some  negligence ;  and  it  may  be  queationable  whether  it  is  in 
their  power  to  dennde  themselves  of  such  responsibility  by  a 
stipalation  in  advance.  But  we  prefer  to  rest  our  decision  upon 
the  broader  groand  of  considerations  of  public  policy.  The  law 
requires  the  master  to  furnish  his  servant  with  a  reasonably  safe 
place  to  work  in,  and  with  sound  and  suitable  tools  and  appliances 
to  do  his  work.  If  he  can  supply  an  unsafe  machine  or  defective 
instrnments,  and  then  excnse  himself  against  the  consequencea  of 
his  own  negligence  by  the  terms  of  his  contract  with  his  servant, 
he  is  enabled  to  evade  a  most  salutary  rule.  In  the  English  case 
above  cited  it  is  said  this  is  not  against  public  policy,  because  it 
^oes  not  affect  all  society,  bnt  only  the  interest  of  the  employed. 
Bat  surely  the  State  has  an  interest  in  the  lives  and  limbs  of  all  its 
citizens.  Laborers  for  hire  coiietitute  a  numerous  and  meritorious 
class  in  every  community,  and  it  is  for  the  welfare  of  society  that 
their  employers  shall  not  be  permitted,  under  the  guise  of  enforc- 
ing contract  rights,  to  abdicate  their  duties  to  Ihsm.  The  conse- 
quence would  M  that  every  railroad  company,  and  every  owner  of 
a  factory,  mill,  or  mine,  would  make  it  a  condition  precedent  to 
the  employment  of  labor  that  the  laborer  should  release  all  right 
of  action  mr  injuries  enstained  in  the  conrae  of  the  service,  whether 
bv  the  employer's  negligence  or  otherwise.  The  natural  tendency 
of  this  wonld  be  to  relax  the  employer's  carefulness  in  those  matters 


^d  by  Google 


180      LITTLE   BOOK  AND  FOBT  SMITH   H.  00,  V.  EDBANKS. 

of  which  he  has  the  ordering  and  control,  sach  as  tbe  sapplyine  of 
machinerjand  materials,  audtbaemcreaae  the  perils  of  occupatioDS 
which  are  hazardoae  erea  when  well  managed ;  and  the  final  out- 
come would  be  to  fill  the  country  with  disabled  men  and  paupers, 
whose  snpport  would  become  a  charge  upon  the  counties  or  upon 
public  charity. 

2.  The  next  qnestion  is  whether  the  testimony  is  sufficient  to 
8np}K)rt  the  verdict.  The  freight  train  upon  which  deceased  whs 
a  l^raketnan  was  bound  for  Fort  Smith,  bnt  had  stopped  at  Ozark 
Station,  about  11  p.  k.,  and  the  trainmen  were  engaged  in  switcli- 
ETtDBi  '"f'  °^  '^^^  from  tbe  main  track  to  a  aide  track.     The 

wTOuoKtcBuoT  pliiiiitiff's  intestiite  was  assisting  in  this  operation,  being 
MPFOKT  TM-  on  top  of  one  of  tbe  cai-s,  with  a  lantern  in  hie  hand. 
The  evidence  does  not  show  clearly  what  it  was  that 
cansed  him  to  fait  between  the  cars;  but  it  is  prultable  that  he  was 
tlirown  off  by  the  jolting  of  the  car,  and  that  tliie  jolting  was  pi'o- 
duced  by  the  car  having  left  the  track.  The  theory  of  the  plain- 
tiff's case  was  that  there  was  a  defect  in  the  switcli,  or  in  the  frog, 
or  in  both,  which  cansed  the  c:ir  to  run  off  at  that  particular  place. 

The  snijstance  of  the  testimony  on  this  point  was  as  follows: 

J.  V.  Bouriand,  for  plaintiff,  testified :  "  It  w.ia  about  11  o'clock 
at  night  when  I  rushed  to  the  railroad.  They  were  taking  deceased 
from  under  tbe  wheels.  It  was  about  twelve  to  fifteen  feet  from 
tbe  frog  toward  the  depot.  He  was  lying  across  the  track. 
Could  see  where  the  border  or  flange  of  the  wheel  cut  the  rail  and 
frog.  Tiiink  the  car  got  off  at  the  frog,  and  it  jumped  across  the 
ties.  Heard  train  liatTgot  off  tiiere  before.  Know  of  iis  many  as 
two  or  three  getting  off  there.  Conductor  and  two  or  three  others 
were  there.  Don't  know  how  many  cars  were  attached  to  engine. 
Think  both  trucks  of  second  car  from  rear  of  train  were  off.  The 
wheels  on  one  side  of  tlje  car  were  off.  Don't  know  whether  the 
track  is  in  good  or  bad  repair.  About  fifteen  or  twenty  feet  Eontii 
of  the  frog  is  where  tbe  man  was  killed,  I  know  of  no  cars  being 
off  thei-e  !>efore.  Judge  fi-om  indentations  on  the  ties;  don't 
know  how  long  they  had  been  there.  Judge  from  the  scar  on  the 
frog  that  the  car-wlieels  ran  on  top  of  it  and  the  track  about  two 
feet.  Don't  know  how  long  the  scar  had  been  there  or  if  it  had 
been  made  by  this  car.  Am  satisfied  the  scar  I  saw  on  the  frog 
was  made  by  this  car  running  off.  Did  not  examine  on  the  out- 
side of  the  tfea  or  switch  rail  to  see  if  there  were  any  indentations 
on  the  ties.  Was  there  next  morning.  Saw  scars  on  the  old  lies 
where  the  accident  occurred.  Two  or  three  davs  afterward  these 
old  ties  were  gone,  and  new  ouee  in.  Lire  at  Ozark.  Was  never 
emploj-ed  on  a  railroad." 

Henry  Woolium  :  "  Don't  remember  exact  time  of  the  accident. 
Was  in  Argenta  at  the  time ;  running  as  fireman  on  an  extra.    Was 


^d  by  Google 


MASTER   AND   SERVANT — DEFECTIVE  TRACK.  181 

at  Ozark  six  or  eight  days  before,  going  into  defendfttit'e  employ. 
Don't  know  as  to  condition  of  ewitch  at  time  of  accident,  bnt  after- 
ward it  was  bad.  Sliortly  after  the  accident,  was  ^ard-maeter  of 
this  yard,  and  was  notified  by  engineer  that  tliis  switch  was  in 
bad  condition  ;  notified  section  foreman,  whose  dnty  it  was  to  fix 
it;  also  told  McLuad,  road- master.  Tlio  train  dispatclier  ^ve 
notice  to  me  two  or  tliree  times  to  run  slow  over  that  switch.  Tliis 
was  the  train  disputcher  under  Mr.  Ilartman,  tliree  yeai-e  ago,  while 
I  was  running  an  engine.  [Evidence  of  above  notification  of  condi- 
tion of  track,  switch,  etc.,  objected  to.  Objection  overruled,  and  ex- 
ception saved.]  -The  defect  in  the  switch  was  that  the  switch-rail 
was  one  and  one  half  inches  lower  than  the  main  track.  An  engine 
got  o£E  the  track  there  one  night,  and  I  ti-ied  two  or  three  tinics  to 
get  over,  and  could  not  do  so.  Tlie  foreman  came  down  and  fixed 
it.  The  wheel  wonld  drop  between  the  switch  and  main  rail. 
Tliis  was  two  months  after  tlie  accident  occurred,  and  while  I  was 
yard-master.  It  wonld  tlirow  the  train  to  north  side  of  the  track; 
could  throw  it  south.  Kyle,  the  section  boss,  fixed  it.  Did  not 
notice  ties  cut  by  wheels.  Switch  rails  are  between  main  rails  of 
track.  It  was  a  split  switch.  Engine  was  hard  to  get  over ;  cars 
wonld  go  over  l)eeause  so  mnch  lighter.  It  is  the  duty  of  road-master 
and  section  foreman  to  look  after  track.  I  knew  there  was  a  defect 
there,  but  not  what  it  was.  Was  notified  switch  was  defective 
after  accident  occurred.  Oonld  not  see  any  defects.  I  went  and 
looked.  Every  time  engine  wonld  go  off  to  the  north  side.  Have 
been  in  railroad  business  about  nine  years.  Tliis  frog  and  switch  are 
the  kind  usnully'used.  I'made  no  report  of  defects  to  officei's  of 
roud.  Looked  at  track  inside  of  fifteen  days  after  accident.  Had 
coal  cars  off  here  while  engineer.  Cause  of  engine  jumping  was 
that  switch  rail  was  lower  than  main  raih" 

None  of  the  remaining  witnesses  for  the  plaintiff  professed  to 
have  any  knowledge  of  the  condition  of  the  track;  but  two  of 
them  stated  that  they  had  seen  a  car  off  tlie  track  about  the  same 
place  recently  before  the  accident  occurred. 

For  the  defendant  the  following  witnesses  testified : 
Jj.  Treadway :  "Was  conductor  of  the  train,  and  handling  the 
switch, — switching  cars.  Gave  signal  to  back;  heard  jumping, 
and  signalled  to  stop.  Went  down  to  where  car  was;  saw  it  was 
Enbaiiks  nnder  the  car,  and  said  :  '  My  God  I  how  did  lie  get  over 
liere ) '  Saw  signal  from  man  on  top  of  second  car  from  rear  end 
to  'come  back;'  did  not  see  him  afterward.  He  was  killed  eight 
or  ten  feet  east  of  frog,  and  one  linndred  and  eiglit  or  ten  feet  east 
of  switch;  body  was  nnder  last  pair  of  trucks  of  second  car  at 
the  rear  of  train.  Had  been  handling  switch  thirty-five  or  forty 
noinntea ;  it  was  all  right,  and  a  good  one.  I  examined  car  and 
track  after  the  accident;  both  were  ail  right.     I  pulled  the  oar 


^d  by  Google 


183      LITTLE   ROOK   AND   FOBT  SMITH   R.  CO.  V.  EUBAHKS. 

over  the  ties  up  to  the  fiog  to  get  it  back  on.  The  track  at  this 
point  has  been  good  erer  since  I've  been  on  the  road, — eighteen 
months.  Tiie  car  rolled  about  six  feet  after  it  jninped  ;  only  one 
pairof  tracks  o£E.  Ht)  was  my  rear  brakeman,  and  his  poEition  was 
rear  brakeinati  on  trdn  or  caboose.  He  ought  to  have  8ta}'ed  in 
rear  of  t)ie  ti'ain,  and  caught  care  as  thev  came  back.  He  was  in 
the  liead  brakeman's  place,  and  I  gave  iiim  no  orders  to  change. 
Brakemen  were  all  under  my  omers.  I  did  not  know  of  the 
change  until  after  his  death.  We  passed  over  this  track  ten  or 
fifteen  times  that  night  before  the  accident.  Car  ran  o£C  because 
of  Boinethiiip  on  tlie  track  to  throw  it,  not  on  account  of  defective 
frog.  The  signs  on  the  ties  were  made  by  us  in  trying  to  get  the 
car  back  on  the  track.  It  is  the  duty  of  the  yard-inaeter  and  Eec- 
tion  boss  to  took  after  the  track.  McLoud  and  Kyle  filled  those 
positions;  both  competent  men.  There  was  no  defect  in  the 
switch,  fi"Og,  or  track  in  any  respect.  Am  not  in  defendant's  era- 
ploy  now.  Had  three  brakemen.  It  was  necessary  for  some  one 
to  be  on  top  of  car  with  engine.     I  would  be  willing  to  swear 

foint-bhink  that  it  was  the  body  of  the  man  that  threw  the  car  o9, 
t  is  tiie  brakeinan's  duty  to  do  work  anywhere  on  the  train  when 
necessary.  After  a  br<tkeman  has  been  assigned  to  a  position  lie 
has  no  rigiit  to  change  places  without  orders  from  the  conductor, 
I  gave  no  such  orders  in  this  case,  nor  knew  of  it  nntil  I  found  de- 
ceased dead." 

McLoud :  "  Am  road-master,  and  have  charge  of  track.  Was  at 
place  of  accident  tlie  next  morning  after  it  occurred.  Examined 
track,  switch,  and  frog,  and  found  everything  all  right.  Nothing 
has  lieen  done  to  change  switch,  frog,  or  anything  else  since  the 
accident.  New  switch  ties  were  pnt  in  a  day  or  two  before  injury, 
and  were  all  right.  Tniins  ran  over  the  track  the  day  and  night 
before  the  injury.  Nothing  was  the  matter  with  the  track.  It  is 
necessary  for  the  point  of  the  switch  rail  to  be  a  little  lower  than 
m:iin  riiii,  so  as  to  slip  under  in  order  to  make  a  switch.  If  a  car 
passes  the  frog,  and  gets  off,  it  would  require  something  to  throw 
it  off.  Both  switch,  frog,  and  track  were  in  good  condition  at  tliB 
time,  and  are  now.  If  switch  is  being  made,  and  frog  is  defect- 
ive, and  the  car  leaves  the  track,  it  would  go  ofE  on  north  side. 
Tiiere  is  a  little  open  place  between  the  mils  at  frog ;  and,  if  the 
wheels  strike  the  point  of  frog,  it  would  go  threugh  this  and  off 
the  nortli  side,  Mr.  Kyle  is  section  foreman,  and  a  competent 
man." 

Kyle:  "Was  section  foreman,  and  duty  to  keep  track  in  good 
order.  Carac  down  morning  after  accident,  ganged  the  track  and 
found  it  all  right;  switch,  frog,  and  track  were  in  good  condition, 
I  pnt  in  ties  day  before  accident;  surfaced,  leveled,  and  ganged 
the  track.     All  regular  trains  passed  over  day  before  the  acci- 


^dbyGoOglc 


MASTER  AND   SERVANT — DEFECTIVE  TRACK.  183 

dent.  No  report  was  ever  made  to  me  that  track  was  defective. 
About  two  months  before  accident  a  king-bolt  broke  on  a  lumber 
car,  and  threw  it  off  near  the  water-tank.  The  frog  is  east  of 
switch  eigiity  feet.  I  pnt  in  new  ties  October  8.  The  accident 
occurred  next  night.  Put  new  ties  from  point  of  switch  up  to, 
and  Ave  under,  the  frog.  I  liare  done  no  work  there  since.  Have 
been  raiht>ading  twenty.one  years." 

John  Edwards:  "Was  a  hand  under  Mr.  ^vl^  There  was 
nothing  wrong  with  tiie  switch,  frog,  or  track.  Titey  are  the  same 
to-daj  as  then,  no  work  having  been  done  there  since." 

The  evidence  of  Bock  Smith  and  Oliarles  Oole  was,  in  sabstance, 
same  as  Edwai-ds. 

Aside  from  tlie  t^timony  of  Woollam,  there  is  nothing  here 
tiiat  tends  to  prove  tiie  existence  of  the  defect  complained  of ;  and 
Woollnm's  testimony,  when  analyzed,  will  be  found  to  be  vagoe, 
inconclusive,  and  contradictory,  based  largely  on  hearsay,  ana  re- 
lating ciiiedy  to  times  long  antecedent  or  aubeequcnt  to  the  acci- 
dent. He  says  expressly  that  he  was  not  acquainted  with  the 
condition  of  the  switcli  at  the  time  of  the  accident.  His  state- 
ment as  to  its  condition  three  yeai-s  before  the  trial,  and  some 
twenty-one  montlts  before  Eiibatiks  was  killed,  should  have  been 
excluded.  Proof  of  what  occurred  two  months  afterward  was  also 
irrelevant  to  any  issue  tliat  was  before  the  jury,  being  too  remote 
to  afiord  any  fair  inference.  The  evidence  in  such  cases  should  be 
confined  to  the  time,  place,  and  circumstances  of  the  injury  and 
negligence  then  and  there.  Parker  v.  Portland  Pub,  Co.,  69  M<J. 
174 ;  Grand  Rapids  &  I.  R.  Co.  v.  Huntley,  38  Mich.  537.  Where 
a  defective  traclc  is  alleged  to  be  the  cause  of  the  casnalty,  it  is 
often  impracticable  to  adduce  evidence  of  the  condition  of  the 
track  at  the  precieo  moment  tlie  casualty  occurred.  It  is  enough  to 
prove  such  a  state  of  facts,  shortly  before  or  after,  as  will  induce 
a  reasonable  presumption  that  the  condition  is  unchanged.  Wool- 
Inra  had  not  examined  the  track  before  the  accident ;  nor  can  his 
examination  afterward  be  brought  nearer  than  15  days.  Assuming 
that  there  was  no  change  of  condition  within  tJiat  time,  the  only 
defect  lie  was  able  to  discover  was  that  the  switch  rail  was  a  little 
lower  than  the  main  rail.  He  doe*  not  seem  to  be  very  positive 
that  this  was  a  defect  which  could  be  remedied  ;  and  the  evidence 
for  the  defendant  shows  that  it  is  necessary  for  the  point  of  the 
switch  rail  to  be  lower  than  the  main  rail,  so  as  to  slip  under  in 
order  to  make  a  switch.  The  tividenee,  then,  is  lacking  on  a  mate- 
rial point  which  it  was  essential  for  the  plaintiS  to  establish — that 
the  appliance  was  defective.  It  may  be  said  this  was  a  qnestion  for 
the  jury.  But  the  jnry  could  not  infer  it  without  proof.  The 
daties  of  a  railroad  company  to  its  servants  in  these  matters  are 
not  measured  by  the  same  rnle  that  is  applied  in  the  case  of  pjis. 


^d  by  Google 


18*     LITTLE  ROCK   AND   FORT  SMITH   E.  CO.  V.  EnBANKS. 

sengers.  Kailways  do  not  warrant  to  their  BervnntB  the  safe  con- 
dition of  their  line  and  machinery;  and  they  guamiity  only  that 
due  care  shall  be  nsed  in  constructing  and  keeping;  in  repair  and 
in  operation  the  line,  appliances,  and  maciiinery.  Patterson,  Kail- 
way  Accident  Law,  §284,  and  cases  cited  ;  Little  Rock  &  Ft.  S.  R, 
Co.  V.  Duffey.  35  Ark.  602 ;  s.  c.,  i  Am.  &  Eiig.  R.  R.  Cas.  637 ; 
St.  Lonis,  I.  M.  &  S.  R.  v.  Harper,  44  Ark.  529 ;  s.  c.  21  Am.  & 
Eng.  R.  R.  Cas.,  605  n.;  St.  Louis,  I.  M.  &  S.  R.  v.  Morgart,  45 
Ark.  318  ;  Probst  v.  Delamater,  100  N.  Y.  266.  So  far  as  appears, 
tlie  deceased  lost  his  life  by  a  casualty,  which,  in  the  absence  of 
evidence  showing  that  the  defendant  was  in  fnnlt,  must  be  ascribed 
to  the  ordinary  risks  incident  to  his  employment.  Little  Rock  & 
Ft.  S.  R.  Co.  11.  Townsend,  41  Ark.  382;  s.  c,  21  Am.  &  Eng. 
R.  R.  Cas.  619. 

3.  The  testimony  fails  to  establish  the  defense  of  contribntory 

negligence.  Enl)anks  merely  exchanged  places  with 
^S^f^rom-  one  of  his  fellow-brakeinen  without  ordere  from  the 
iiuBDTOKimo-  conductor.     Although  it  is  probable  he  would  not  have 

been  injured  if  he  had  remained  in  the  position  to  which 
he  had  been  assigned,  yet  it  is  not  shown  that  the  place  he  assnmed 
was  more  dangerous  than  the  one  he  vacated.  In  this  connection  we 
notice  the  court  charged  that  tlie  plaintiff  must  prove  that  her  in- 
testate was  free  from  fault  or  negligence.  This  was  an  error  in 
favor  of  tlie  defendant;  and  we  call  attention  to  it  for  the  purpose 
of  another  trial.  Contributory  negligence  is  a  defense  to  be 
affirmatively  proved.  It  will  be  presumed  the  injured  party  waa 
in  the  exercise  of  due  care  until  tlie  contrary  is  made  to  appear. 

4.  In  other  respects  the  jury  was  properly  charged,  except  that 
the  court  should  have  granted  this  prayer  of  the  defendant:  "If 
you  find  the  defects  relied  on  in  this  action  were  such  as  are  com- 
mon to  railroads,  and  such  as  could  not  have  been  avoided  by  rea- 
sonable care  and  attention  on  the  part  of  defendant,  you  will  find 
for  defendant."  A  direction  of  this  sort  was  necessat-y  to  guard 
the  jury  against  being  misled  by  the  testimony  in  relation  to  the 
difference  in  height  between  the  main  and  switch  rails. 

Reversed,  anaa  new  trial  ordered. 

Contraotwlth  EmplovMiExamptlnj  Company  from  UUbllKy for  Aeeldsnt. — 
See  Darrigan  v.  New  Torlc  &  N.  E.  R.  Co.,  38  Am.  &  Eog.  R.  R.  Cu.  488; 
Cook  e.  Weatern  &  A.  B.  Co.,  38  Am.  &  Eog.  R.  R.  Gas.  817 ;  Lata  Bhore 
A  M.  a  a  Go.  e.  Spaogler,  28  lb.  810. 


^d  by  Google 


HASTEB  AND   SEEVANT — OAK  COUPLING. 


EAmrtBAL  Aim  St.  Josbph  R,  Co. 
(Advaitee  Ctm,  Miutmri.     Noeanber  14,  1887.) 

A  wrecking  train,  upon  which  plaintiff,  a  bridge  carpenter  in  defendants' 
employ,  waa  riding,  was  wreclied,  and  plaintiff  injured.  It  was  alleged  that 
the  accident  ivas  caused  bj  the  use  of  a  rope  to  couple  the  derrick  car, 
which  had  no  drawhead;  that  a  chain  which  had  formerly  been  used 
made  a  better  coupling.  These  allegations  were  denied  by  the  defendant. 
The  wrecking  train  nas  under  the  general  charge  of  a  coaductor,  but  the 
wreck  master  had  control  oF  the  workmen,  and,  it  was  claimed,  ordered  the 
derrick  car  to  be  coupled  with  a  rope  instead  of  a  chain,  and  an  employee 
other  than  the  plaintiS  executed  the  order.     Utld : 

1.  That  an  instruction  that  if  the  rope  coupling  was  more  dangerous  thaD 
the  chain  coupling,  defendant  would  be  liable,  if  the  accident  was  caused 
by  such  coupling,  was  erroneous;  that  the  use  of  a  rope  as  a  coupling,  when 
a  chain  was  better,  did  not  Decessarily  imply  negligence,  if  the  rope  was  a 
reason  ably  safe  coupling. 

S.  That  it  was  for  the  jury  to  determine  whether,  the  car  being  without 
■  drawhead,  the  defendant  used  all  reasonable  and  ordinary  care  in  the  use 
of  a  substitute;  and  it  was  error  for  the  court  to  instruct  the  jury  that,  as  a 
matter  of  law,  there  was  want  oF  such  care  in  the  use  of  a  rope. 

8.  That  whether  the  plaintiff,  iDeDtering  the  employment  of  defendant, 
contracted  with  reference  to  the  risk  arising  from  the  use  of  a  rope  as  a 
coupling,  was  a  matter  of  fact  for  the  jury;  and  it  was  error  for  the  court  to 
instruct,  as  a  matter  of  law,  that  the  use  of  a  rope  created  an  extraordinary 
hazard  which  the  plaintiff  had  not  assumed. 

4.  That  the  wreck-master  was  the  ^ent  of  the  defendant,  and  that  the 
performance  of  the  order  as  given  did  not  deprive  pluntiS  of  his  remedy 
tor  injury  caused  by  the  agent. 

Appsal  from  circuit  court,  Livingston  coiintj;  Jaubs  11. 
Datib,  Judfi^e. 

^rong  c6  Mostnam,  and  Oeo.   W.  Easley  for  appellant 
8.  P.  Huston  for  respondent. 

Black,  J. — The  plaintiff,  a  bridge  carpenter  in  the  employ  of 
the  defendant,  bronght  this  snit  to  recover  daraagea  for  injnriee 
received  under  the  following  circunistaiices :     A  pae-  rum. 

flenger  train  was  wrecked  at  Bevier  Station  at  2  o'clock  on  the 
morning  of  the  first  of  March,  1881.  The  defendant  canscd  a 
wrecking  and  relief  train  to  be  made  up  at  Brookfield,  a  stiition 
west  of  Bevier.  This  train,  composed  of  an  eiigine,  flat  cars,  a 
derrick  car,  caboose,  and  a  passenger  coach,  all  conpled  together 


^d  by  Google 


188  TABLEB  V.  HANNIBAL   AND   ST.  JOSEPH   E.  CO. 

in  tlie  order  named,  started  foi-  tlie  scene  of  tlie  wreck  at  i  o'clock 
of  the  same  morniiic,  with  physicians,  tlie  plahitifi,  and  other 
persons  on  board.  As  the  train  passed  orer  Brush  creek,  the 
boom  of  the  derrick,  and  perliaps  the  iiiaat,  canght  in  tlie  bridge 
timbers,  and  palled  the  bridge  down.  The  caboose  in  which  the 
plaintiff  was  riding  went  down  with  the  bridge.     Several  paasen- 

{^ers  were  killed,  and  the  plaintiff  received  the  injnries  of  which 
le  complains.  The  too!  car  lodged  on  the  eaet  pier  of  the  bridge, 
and  the  derrick  car  crossed  and  fell  over  the  dump  150  feet  Be- 
yond. The  ai-ch  bars  of  the  rear  trnck  of  the  derrick  ear  were 
broken.  This  car  had  been  repaired  on  the  day  before  the  disas- 
ter by  the  plaintiff  and  other  carpenters.  The  drawlieud  in  the 
forward  end,  which  had  been  out  for  10  or  more  days,  had  not  yet 
been  put  in  pluce;  so  that,  on  this  occasion,  the  car  was  attached 
to  the  next  forward  car  by  means  of  a  switcli  rope.  In  other 
respects  the  car  appeara  to  have  been  in  good  repair;  and  it  18 
admitted  that  the  bridge  was  in  good  condition. 

The  evidence  for  the  plaintiff  tends  to  show  that  a  chain  had 
been  before  used  to  make  tlie  conpling;  that  one  was  used  on  this 
occasion  when  the  ti-ain  was  made  up,  but  that  the  rope  was  8ob- 
Btitnted  therefor  by  the  order  of  Mr.  Cartter,  the  master  carpenter 
and  wreck-master ;  that  a  rope  is  nntit  for  such  use ;  and  that  the 
derrick  car,  being'  without  a  drawhead,  should  have  been  placed  in 
the  rear  of  the  train,  and  the  boom  tnnied  to  the  rear.  The  boom 
projected  forward,  and  was  hold  in  place  by  gralMshains.  For  the 
defendant  theevidence  is  that  a  chain  had  never  been  used  to  make 
the  conpling,  and  that  a  rope  is  bettei'  and  safer  than  a  chain  for 
such  nse.  One  witness  for  the  plaintiff  says  he  saw  a  hook  in  a 
bridge  tie  after  the  train  had  been  wrecked,  and  from  this,  and  the 
circumstance  that  the  rope  conpling  lenghtened  out  so  that  it  had 
to  be  and  was  taken  np  at  a  station  before  reaching  the  bridge,  the 
conclusion  was  sought  to  be  drawn  that  the  loose  end  of  the  rope 
fell  from  the  car,  and  the  hook  thereon  eanglit  in  a  bridge  tie,  and 
caused  the  wreck.  But  the  defendant  produced  evidence  to  the 
effect  that  the  hook  found  in  the  tie  came  from  a  rope  need  in  re- 
moving the  debris  from  the  creek,  and  not  from  the  rope  used  as  a 
coupling. 

The  wi-eck-master  knewthe  derrick  car  waswithoutadrawhead, 
and  so  did  the  plaintiff;  but  the  evidence  is  that  plaintiff  did  not 
know  that  a  rope  had  been  used  to  make  the  conpling.  On  the 
evidence  the  theory  of  the  defendant  seems  to  be  that  the  arch  bars 
of  the  truck  to  the  derrick  car  broke  and  threw  that  car  into  tlie 
bridge  timbere,  and  that  the  truck  was  withont  any  known  or  vi- 
sible defect. 

The  second  instruction  for  the  plaintiff  declares  that,  in  entering 
the  service  of  the  defendant,  the  plaintiff  "  only  assumed  the  ordi- 


^d  by  Google 


MASTER  AND  SEKVANl^CAR  COUPLING.  187 

nary  riska  and  dangers  of  such  employment,  and  did  not  assnme 
or  contract  with  reference  to  any  risks  or  dangere  arising  or  reBnlting 
from  oroccasioned  by  the  use  of  a  switch  rope,  in  place  of  a  cliain, 
ID  coupHiig  its  derriek  car  in  tiie  wrecking  train  ;  and  if  the  jury 
believe  from  the  evidence  that  the  itse  of  sach  switch  rope  rendered 
such  coDphng  more  nnsafe  or  dangeroaa  than  if  a  chain  had  beeo 
nsed  for  such  coupling,  and  that  the  plaintiff  did  not  know  of  the 
use  by  defendant  of  such  switch  rope  at  the  time  lie  took  passage 
on  eaid  train,  and  that  the  injuries  to  plaintiff  were  caused  or 
broi^ht  about  by  such  nnsafe  coupling,  they  will  find  for  plaintiff: 
provided,  they  further  find  that  snch  switch  rope  was  snostituted 
by  order  of  A.  J.  Cartter,  and  tljat  he  had  charge  of  the  bridge 
and  wrecking  department  of  tlie  defendant,  with  power  to  hii© 
and  discharge  the  men  in  his  department,  and  to  direct  with  what 
material  snch  conpling  should  be  made." 

1.  By  this  instruction  the  liability  of  the  defendant  is  made  to 
flow  from  the  fact  that  the  use  of  a  rope  is  more  dangerous  than  a 
cbain.     It  is  not  the  duty  of  the  defendant  to  furnish 
absolntely  safeappliaiices.    It  is  sufficient  that  tlie  mas-  wor    pm    « 
ter  furnish  appliances  that  are  reasonably  safe,  and  ai-e 

fit  for  the  designed  nse.  In  otlier  words  the  duty  of  the  master  is 
to  use  all  reasonable  care  in  procuring  the  implernenta  to  be  used, 
and  in  keeping  tiiem  in  good  order  ana  repair.  Porter  v.  Railroad, 
71  Mo.  67;  s.  c.  2  Am.  &  Eng.  R.  R.  Gas.  44;  Siela  v.  Railroad, 
82  Mo.  435.  Rere  it  appe^ii-s  to  he  conceded  by  the  plaintiff  that 
a  chain  wonlil  have  been  a  suitable  and  proper  coupling.  A  chain 
is  then  taken  a^  a  standard,  and  the  liability  of  defendant  is  made 
to  depend  upon  the  fact  tliat  the  use  of  a  rope  rendered  the  coup- 
ling more  unsafe  than  the  use  of  a  chain.  It  is  plain  that  such  a 
method_of  arriving  at  the  questions  of  defendant's  liability  is  in 
conflict  with  the  rule  of  the  defendant's  duty  before  stated.  The 
question  to  be  determined  is  not  whether  the  one  appliance  is  safer 
tlian  the  other,  but  whether  the  rope  was  a  reasonably  safe  coupling. 
Negligence  does  not  necessarily  arise  from  the  proof  of  the  superior 
merits  of  the  chain.  There  may  have  been  no  negligence  in  the 
tiae  of  either,  though  one  may  have  been  better  than  the  other. 

2.  Again,  the  qnestion  of  tho  defendant's  negligence,  or,  what  is 
the  same  thing,  want  of  caro  in  furnishing  an  appliance  suitable 
for  the  intended  use,  is  not  submitted  to  the  jury  for 

its  determination,  but  is  decided  by  tiie  court  as  a  queS'  ?f^™c»  ni 
tion  of  law  upon  the  relative  merits  of  the  two  methods  SSbjcbt.  """^ 
of  making  the  coupling. '  We  agree  that  it  is  the  prov- 
ince of  the  jury  to  find  tho  facts,  and  of  the  court  to  declare  the 
law  OQ  the  facte  as  found.  In  some  cases  the  question  of  negli- 
gence may  be  determined  by  the  court  on  the  facts  found  or  ad- 
mitted ;  in  others  the  question   must  he  submitted   to  the  jury. 


^d  by  Google 


188  TABLER  V.  HANNIBAL  AND   ST.   JOSEPH   B.  CO. 

:iiid  tliiB,  too,  thoogh  the  detailed  facts  are  not  disputed.  Thus, 
for  one  voluntarily,  and  not  to  avoid  any  threatened  danger,  to 
jump  from  a  train  of  cars  while  in  rapid  motion  is  negligence ;  but 
for  one  to  step  from  a  car  to  a  station  while  the  car  is  caoving  maj 
or  may  not  be  negligence,  and  tlie  question  is  then  one  for  the  jury. 
Leslie  v.  E.  Co.,  88  Mo.  50;  s.  c,  26  Am.  &  Eng.  R  E.  Cas.  229, 
and  cases  cited.  Where,  from  the  facts  found  or  agreed  upon,  tlie 
question  of  negligence  is  one  about  which  reasonable  minds  may 
differ,  it  should  be  left  to  the  jury  to  make  the  deduction  from  all 
the  circumstances  to  determine  the  ultimate  fact.  Norton  v.  Itt- 
ner,  56  Mo.  351.  The  car  being  without  a  drawhend,  it  became 
the  duty  of  the  defendant  to  use  all  reasonahle  or  ordinary  care  in 
furnishing  a  substitute ;  but  it  cannot  be  said,  as  a  matter  of  law, 
that  in  tlie  use  of  the  rope  there  was  a  want  of  Bucli  care.  The 
eixtii  instruction  given  at  tJie  request  of  the  defendant  goes  far  to 
relieve  the  plaintiff's  eecwnd  of  some  of  the  objectionable  features, 
for  it  declares  that,  before  the  plaintiff  can  recover  on  these  issues, 
he  must  show  that  the  derrick  car  wag  negligently  and  carelessly 
attached  to  the  car  ahead  of  it  by  means  of  a  rope  with  a  large  hook 
attached  to  it.  Still  we  are  of  the  opinion  that  the  jury  was  left 
to  understand  that  it  was,  as  as  a  matter  of  law,  negligence  in  the 
defendant  to  use  a  rope,  if  a  chain  would  have  been  safer. 

3.  The  plaintiff's  second  instruction,  it  will  be  seen,  asserts  tlie 
abstract  proposition  that  he  did  noi  make  his  contract  of  employ- 
ment with  reference  to  any  dangers  arising  from  the 

5™°  oV"ior!  iiBe  of  a  switch  rope  for  a  coupling;  and  in  this  there 
5J5^'2g^  ""■  was  also  error.  It  is  a  well-settled  principle  of  law 
that  the  servant,  in  entering  the  employment  of  another, 
assumes  all  the  risks  ordinarily  incident  to  the  business  in  which  he 
engages.  With  a  few  exceptions,  not  necessary  to  be  mentioned 
here,  it  may  be  conceded  that  these  are  the  only  risks  which  he 
does  assume.  But  the  error  of  this  instrnction  is  that  it  aBsnmes 
that  the  use  of  a  switch  rope  created  an  extraordinary  huzard. 
There  is  nothing  in  the  case  to  justify  this  assumption.  Whether 
the  risk  was  or  was  not  one  incident  to  the  basinese  was  a  qnestion 
of  fact  for  the  jury  to  pass  upon. 

4.  The  wrecking  train  was  under  the  general  eupervisioD  and 
control  of  a  conductor ;  but  that  does  not  make  Cartter,  the  master 

mechanic  and  wreck-master,  a  fellow-servant  with  the 
■oT^"«^o^  plaintiff.  Cartter  had  full  control  of  the  men  in  his 
mrjurr^  WITH  department,  with  powers  incident  to  the  position  he 

occupied,  and  it  is  said  he  had  the  power  to  direct 
with  what  material  the  coupling  should  be  made.  In  the  orders 
given  within  the  scope  of  hie  authority,  he  represented  tlie  com* 
pany.  This  is  so  as  to  the  order  to  substitute  a  rope  for  a  chain, 
if  such  be  a  fact,  and  as  to  the  orders  given  when  the  train  stopped 


^d  by  Google 


MASTEK  AND   SERVANT — OAE  COUPIISG.  lotf 

and  the  slack  in  the  rope  was  taken  np.  The  fact  that  Bome  em- 
plojee  othecthat  tbe  plaintifE  executea  the  orders,  does  not  miike 
tbem  any  less  tbe  acts  of  the  principal.  The  performance  of  sncb- 
an  order  as  it  was  given  does  not  deprive  plaintiff  of  a  remedy  for 
an  injury  cansed  by  the  agent.  That  Cartter  was  tbe  agent  of  the 
defendant,  in  respect  of  tbe  giving  of  tliese  directions,  follows  from 
what  was  said  in  Moore  v.  R.  Co.,  85  Mo,  588;  e.  c,  21  Am.  & 
Eng.  K.  E.  Cas.  509,  22  Il>.  594:  and  Hoke  v.  Raihoad,  88  Mo. 
360 ;  8.  c,  25  Am.  &  Eng.  R.  R.  Cae.  463. 

5.  Tliere  is  no  evidence  in  the  case,  as  it  is  before  us,  that  the 
derrick  car  was  decayed  in  its  timbers  when  used  on  the  occasion 
in  question,  and  for  tiiis  reason  instructions  based  npon  that  theory 
Bboald  have  been  refused. 

Many  other  questions  are  insisted  npon  by  the  defendant  for  a 
reversal;  bnt  they  are  complicated  with  a  mass  of  instructions 
given  at  its  request,  and  of  which  it  cannot  complain.  Some  of 
Biese  instructions  go  so  far  as  to  point  out  what  tbe  plaintiff  must 
Bhowto  recover  on  iesues  wiiicb  were  abandoned  by  tiie  plaintiff, 
for  they  are  not  brongbt  forward  as  grounds  of  recovery  in  bis  in- 
structions. As  we  are  satisfied  this  case  must  assume  a  more  de- 
fined shape  on  a  new  trial,  the  instrnctions  will  not  be  further  pur- 
sued. 

Tlie  judgment  is  reversed,  and  the  cause  remanded  for  new  trial. 

(All  concur.) 

Obligation  oPCompany  to  Furnljh  Cart  with  proper  Apparatut  for  Coup- 
llnn-— iiee,  Kenemlly,  St.  Louis,  etc.,  R.Co.  o.  Higgins,  21  \m.  &  Eiig,  R.  B, 
Cas.  629;  Kelt;  v.  WisconBin  Cent.  B.  Co.,  31  III.  (J33;  Mich,  Cedt.  R.  U>.  n. 
Smitbson,  1  lb.  110;  PeonsjlvaDia  Co.  o.  Long,  IS  lb.  345;  Lake  Erie  &  W. 
R  Co.  0.  Everett,  11  lb.  221;  Skellingert.  Chicago,  etc.,  R.  Co.,  13  lb.  206; 
Whitman  e.WisconEin  &M.  R.  Co.,  12  lb.  214;  Liiwlesa  e.  Connecticut  River 
R.Co.,  18  lb.  06;  Nashville,  etc.,  R.  Co.  «.  Wheeler,  4  lb.  633;  Houslnr.etc, 
R.  Co.  e.  Maddoi,  21  lb.  62S;  Misaouri  Pac.R.  Co.  o.Ljdt-,  11  lb.  188;  Gott- 
lieb e.  New  York,  etc.,  R.  Co.,  24  lb.  421 ;  Pay  v.  Minneapolis  &  8i.  L.  R. 
Co.,  11  fb.  103.  Bee,  also,  note  to  Dsrracutts  n.  Chesapeake,  etc.,  R.  Co. 
tupra,  157. 

Servants  Coupling  Cart  with  End  of  Switchchain  Instead  of  Coupling 
Link  it  Guilty  of  Contributory  Negligenoe> — Houston,  etc.,  R.  Co.  o.  Hjera, 
a  Am.  &  Bag.  B.  R.  Caa.  114. 


^dbvGooglc 


lUO      itEEU  V.  BHSLUtOION,  C£DAB  KA1>II^,  SIX.,  K.  00. 


BimLmQTON,  Cedab  Kapids  and  Nobthebn  B.  Ca 

[Adtanet  Gate,  Lnea.    June  24,  1887.) 

The  plaintiff,  a  brakemao  in  defendnnt's  employ,  was  injured  while  conp- 
liog  cars,  owing  to  a  defective  coupling  apparatus.  The  Hwitchman  under 
wbose  direction  the  train  was  made  up  had  discovered  the  defect  in  said  car- 
and  communicated  the  Tact  to  the  general  office  bj  telephone,  and  received 
the  reply  :  "  It  she  will  hold  together.  Bend  her  off."  There  wbh  evidence 
to  ahow  that  both  before  and  after  the  accident  other  persoDs  had  succeeded 
in  coupling  the  car.  The  defendant  hod  a  rule  that  a  sticic  must  be  used  in 
coupling  cars,  which  plaintiff  did  not  comply  with.     Beld; 

1.  That  the  fact  that  the  car  had  been  safely  coupled  before  and  after  the 
Accident  did  not  necessarily  show  that  it  was  not  broken,  as  the  jury  may 
have  found  that  it  was  done  with  a  knowledge  of' the  defect. 

2,  Tiiat  it  was  to  be  presumed  that  the  direction  from  the  main  office  over 
the  telephone  cime  from  one  having  authority  to  give  it,  in  the  absence  of 
evidence  to  the  contrary. 

8.  Tliat  when  the  fact  that  the  car  waa  out  of  repair  was  clearly  proved, 
and  was  shown  to  have  been  known  by  many  persona,  including  the  switch- 
man whose  duty  it  was  to  make  up  the  trains,  it  was  unnecessary  to  instruct 
the  jury  that  notice  must  be  brought  home  to  the  defendant  of  the  defective 
condition  of  the  car,  before  there  can  be  any  liability  for  usin^  it, 

4.  That  the  fact  that  plaintiff  disobeyed  the  rule  as  to  using  a  stick  in 
coupling  did  not  prevent  him  from  recovering,  when  it  appeared  that  the 
injury  would  have  been  received  even  if  the  stick  had  been  used. 

Appeal  from  circuit  court,  Tama  county. 

Tim  plaintiff  wag  a  bfttkonian  on  the  defendant's  road.  He  bronglit 
tliis  action  to  recover  damages  for  a  personal  injury  wliicli  lie  sus- 
tained in  coupling  care  at  Cohiinbus  Jiniction.  There  was  a  trial 
by  i'"'?!  t»"<^  a  verdict  and  judgment  for  the  plaintiff.  Defend- 
ant n]n)ealB. 

S.  K.  Tracy  for  appellant. 

Stivers  cfe  Loiitham  and  J.  W.  WiUett  for  appellee. 

RoTHEOCK,  J. — 1.  The  plaintiff  was  hind  brnkeinan  npon  a 
freight  train  running  between  Cedar  Rapids  and  Burlington.  On 
tlie  trip  upon  whicli  the  injury  was  received,  tlie  train  left  Cedar 
Ilapids,  going  sonth,  at  about  3  o'clock  in  the  morning.  The  train 
was  made  up  at  Cedar  Ititpids  immediHtely  before  it  Btnrted 
Facts.  ou  the  foad.     There  was  a  Star  Union  Line  car  placed 

at   the   head  of  the   train,   and  coupled   to  the   locomotive   ten- 
der.    The  plaintiff  came  iuto  the  train-yard  after  the  train  was 


iizcdbvGoOgIc 


MASTER  AND  SEBVANT — COUPLING  CABS.  191 

made  np.  When  it  reached  Columbus  Junction  tlie  engine  was 
cut  off,  and  went  upon  6  side  track  for  some  purpose,  and  then 
came  back,  and  the  plaintiff  went  between  the  tender  and  the  Star 
Union  car  to  cotiple  them,  when  he  received  the  injury  of  whicii 
he  complains.  He  claims  that  the  Star  Union  car  was  broken 
and  defective  on  aceount  of  the  abseiiue  of  wiiat  is  called  a  "  fol- 
low plate"  under  the  car,  and  by  which  the  drawbar  is  prevented 
from  sliding  back ;  and  that,  by  reason  of  said  defect,  the  drawbar 
was  driven  back,  and  shoved  under  the  car  so  far  that  there  was 
not  sufficient  space  left  l>etweeQ  the  car  and  the  tender  of  tlie  lo- 
comotive to  safely  make  the  coupling;  and  that  in' consequence 
thereof,  he  was  caught  between  them,  and  permanently  injured  \n 
his  hips. 

The  defendant  claimed  that  there  was  no  such  defect  in  the  car, 
and  tliat  the  plaintiff,  at  the  time  he  was  injui'ed,  waa  knowingly 
violating  an  express  printed  rule  of  the  company  in  not  using  a 
stick  to  make  the  coupling,  and  that  this  violation  of  the  rule  in- 
creased his  danger,  and  that,  by  such  disobedience,  he  contributed 
by  his  own  negligence  in  causing  the  accident. 

The  fact  that  the  car  was  out  of  repair,  so  that  the  drawbar 
would  slide  back  under  the  car,  ouglit  not  to  he  a  matter  of  serious 
dispute.  To  say  the  least,  tlie  jury  were  fnlly  warranted  in  find- 
ing, from  the  evidence,  that  such  was  its  condition.  It  is  true  that 
other  persons,  before  and  after  the  accident,  succeeded  in  coupling 
the  car,  but  the  jury  may  liave  fairly  found  that  it  was  done  with 
a.  knowledge  of  the  defect.  Of  course,  the  question  whether  it 
eould  be  safely  coupled  to  another  car  depended  altogether  upon 
the  force  with  which  the  other  car  waa  bunted  against  it. 

It  appears  from  the  evidence  of  one  Montgomery,  who  was  a 
Bwitchman  in  the  yards  at  Cedar  Rapids,  and  who  had  charge  of 
the  switch  crew  in  making  up  trains,  and  under  whose 
supervision  the  train  in  question  was  made  up,  that  he  fhohudtuori- 
discovered  that  there  was  no  follow  plate  on  tlte  back 
part  of  the  drawbar,  and  that  the  drawbar  would  shove  back  until 
Its  rim  would  strike  the  deadwood.  He  further  testified  that, 
npon  making  the  discovery,  he  went  to  a  switch  shanty  in  tlie 
yards,  in  which  there  was  a  telephone  used  for  the  purpose  of  com- 
tnutiieating  with  the  general  office  and  shops,  and  ho  called  the 
general  ofhce,  and  stated  to  some  one  who  answered  his  call  that 
the  car  was  in  bad  order,  and  the  person  answering  his  call  in- 
quii-ed,  "In  what  way?"  and  the  witness  told  him  that  tlie  back 
plate  was  gone,  and  received  the  reply  that  "  if  she  will  hold  to- 
gether, send  her  off."  It  is  claimed  that  the  testimony  as  to  the 
communication  by  telephone  should  have  been  excluded,  because 
it  was  with  some  unknown  person,  and  ought  not  to  bind  the  de- 
fendant.    It  appears  that  the  telephone  was  placed  in  the  yards 


^d  by  Google 


192      KEED  V.  BURLINGTON,  OEDAB  RAPIDS,  ETC.,  B    CO. 

for  tlie  very  pnrpose  of  commuTiicating  with  Uie  office.  It  was  the 
ineanB  of  comiiiniiication  provided  by  tlie  defendant;  and  in  the 
absence  of  any  showing  tliat  some  officious  intrnder  ]iad  takeo 
Tip  qiiiirters  in  tlie  office,  and  assumed  to  traneact  the  basineseof 
tbe  company,  it  ougtit  to  be  pi'esiimed  that  the  commanication 
was  made  witli  one  Jiaving  antliority  to  give  directions  as  to  the 
matter  inquired  abont;  and  if  Montgomery,  wlio  bad  charge  of 
making  up  tbe  tfiiins,  did  not  have  tbe  autlioritj  to  set  oat  tlie 
car  without  orders  front  the  office,  it  was  iiis  business  to  ascertain 
to  a  certainty  tliat  tbe  ordera  lie  received  came  from  a  pro[)er 
source. 

2.  It  is  insisted  that  the  fourth  instrnction  given  by  the  conrt  to 
the  jury  ie  erroneous,  because  the  same  does  not  direct  the  jury 

that  notice  must  be  brought  to  the  defendant  of  the 
NoTicB  TO  torn-  defective  condition  of  tlie  car  before  tliere  can  be  any 
ncTiTBCAs.      liability  for  using  it.     We  do  not  deem  it  necessary  to 

set  out  this  instruction.  It  is  enough  to  say  that  as 
tbe  evidence  was  abundant  to  snstain  the  finding  tliat  the  car  was 
out  of  repair  as  claimed,  and  no  verdict  could  have  been  found  for 
the  plaintiff  without  finding  that  fact,  the  knowledge  of  the  de- 
fendant as  to  its  condition  was  not  a  debatable  question  in  tbe  case. 
Montgomery,  the  very  person  of  all  others  wliose  busineBS  it  Wii; 
to  see  tiiat  tlie  train  was  properly  and  safely  made  np,  knew  ihwr 
the  car  was  in  bad  order,  and  notice  to  him  was  notice  to  the  de- 
fendant. Several  otiier  witnesses  teetiiied  to  the  same  fact,  Indeeii. 
we  do  not  tliink  it  would  have  been  error  if  the  court  Jiad  stated 
to  the  jury  tliat,  if  tbey  believed  the  witnesses  who  testified  that  tlie 
car  was  in  bud  order,  they  should  find  that  the  defendant  had  no- 
tice of  that  fact.  The  jury  sliould  be  required  to  determine  tiie 
facts  about  which  there  is  dispute,  and  these  only, 

3.  It  appears  from  tbe  evidence  that,  when  tlie  plaintiff  went 
Iw'ween  the  car  and  the  tender  to  make  the  coupling,  he  bad  no 
knowledge  of  the  defect  of  wJiich  he  now  complains.     He  was  not 

present  when  the  engine  was  attached  to  the  car  at 
iB^^  n^°S  Cedar  Rapids.     He  gave  the  signal  to  the  en^neer  to 

back  up,  and  stepped  in  to  make  the  coupling.  He 
raised  the  link  with  bis  iiand,  and  tbe  engine  came  against  tbe 
dniwbar  of  the  box  car,  and  shoved  it  tinder  the  car  until  the  pin 
caught  the  deadwood.  The  engine  and  ear  came  so  close  together 
that  he  was  caught  and  held  fast  until  tbe  engine  started  ahead. 

The  defendant  introduced  in  evidence  a  rule  prescribed  by  tlie 
company  for  tlie  guidance  of  brakemen  in  making  couplings.  U 
is  in  tliese  words :  "  Brakemen  ahonld  not  go  between  cars  to  make 
couplings  unless  the  drawbars  and  draft  timbers  are  in  good  con- 
dition. The  hand  should  never  be  nsed  to  gnide  the  link  in  mak- 
ing conplings.  Sticks  siiould  be  used  for  that  ptirpoae.  Tbey  will 
be  found  at  headquarters." 


^d  by  Google 


HASTZR  AND  SfiBVANT — OOTTPLOTG  CABS.  193 

It  is  claimed  that  tlie  plaintiff  in  oeine  hie  hand  to  g^iide  the 
]ink,  instead  of  a  etick,  was  guilty  of  a  pTaiD  violation  of  the  mle, 
which  contributed  to  prodnce  the  injury  of  which  he  complains. 
If  this  proposition  is  correct,  that  is,  if  the  violation  of  the  rale 
contributed,  approximately,  to  the  iniury,  the  plaintifE  cannot  re- 
cover ;  but,  if  the  violation  of  Lhe  rule  in  no  manner  entered  into 
or  became  a  part  of  the  canse  of  the  injury,  there  is  neither  reason 
Qor  authority  for  holding  tlut  the  pkintiS  was  cliargeable  with 
contributory  negligence.  Tlie  court  below  was  of  this  opinion,  and 
charged  the  jury  tliat  "  there  Wiis  no  testimony  having  a  tendency 
to  show  that  such  violation  of  siicli  rule  proximately  tended  to  pro- 
dnce  the  injuries  to  plaintiff,  and  snch  violation  of  such  rule  would 
not  constitute  a  bar  to  plaintiffs  recovery." 

Our  examination  of  the  evidence  in  the  case  leads  us  to  the  con- 
clnsion  that  this  instruction  is  correct.  The  head  brakeman,  who 
was  with  the  traiii  at  the  time  of  the  accident,  was  a  witness  for 
the  defendant,  and  testified  as  foTlows,  with  reference  to  the  nseof 
a  stick  in  making  a  coupling :  "  In  making  a  coupling  without  the 
use  of  a  stick,  brakemen  set  the  pin  so  it  will  fall  itself ;  and  if  it 
don't  fail,  when  tbe  draw-bars  come  together,  they  put  the  pin  down 
witii  the  hand.  In  using  a  stick  they  raise  the  link  with  it,  and, 
after  they  get  the  link  entered,  they  put  tiie  pin  down  with  the 
liand.  I  mean  to  say  that  the  usual  way  of  making  a  coupling  with 
a  stick  is  to  raise  the  link  with  the  stick,  and  enter  it,  and  then  take 
the  other  hand  and  put  the  pin  down.  A  brakeman  must  go  jnst 
ae  far  between  the  cars  to  make  the  coupling  when  he  uses  a  stick 
as  when  he  uses  liis  hands  alone.  In  coupling  he  would  have  to  go 
80  far  whether  he  used  a  stick  or  not," 

There  is  no  evidence  in  the  case  in  any  manner  conflicting  with 
this.  It  is  perfectly  manifest  that,  if  the  plaintiff  had  raised  the 
link  with  a  stick,  lie  would  have  been  exposed  to  the  same  danger 
as  he  was  by  raising  it  with  hie  hand.  The  stick  would  have  been 
no  protection  against  the  drawbar  shoving  back,  and  tlie  cars  clos- 
ing npon  him.'  The  danger  was  pi-ocisely  the  same  in  one  case  as 
the  otiier.  We  infer  from  this  testimony  that  tbe  rule  prescribing 
the  Qse  of  a  stick  is  to  protect  the  hands  from  the  danger  of  being 
caught  between  the  ends  of  the  drawbars.  Our  conclusion  is  that 
the  court  did  not  err  in  rulings  upon  the  evidence,  nor  in  the  in- 
structions given,  nor  in  the  refusal  to  give  instructions  requested 
by  the  defendant,  and  we  think  the  judgment  must  be  affirmed. 

Sbbveks,  J.,  dissents  from  tlie  iirst  I'oint  in  this  opinion. 

Injury  to  SarvantViolatlngRuto  Forbidding  Coupling  by  Hand, 
■jlvania,  etc,  R.  Go.  o  Whitcomb,  and  note,  ante, 

81  A.  A  B.  R.  Ou.— 18 


^dbvGooglc 


.BOamttK  AKO  WBa'i'BRN  &.  OU.  V.  BMMKBT. 


KOBFOLX  ABD  WesteBS   B.  OOk 


(JdeoiM^  Ow,  Firvinin.    Am  80, 1887.) 

It  ia  oontribntorj  negligence  for  aa  empIofM  of  «  railroid  eompuf  who, 
■hortly  kfter  he  had  uncoapled  •  or,  and  bad  «d  opportunity  for  obeerTiD^ 
an;  defects  in  the  coupling  appKratus,  aod  repordng  the  same  as  wu  hii 
dutj,  to  attempt  to  oouplo  the  same  car  to  another  without  obBerving  the 
disparitj  in  the  height  of  the  drawheads  and  using  a  crooked  instead  of  a 
straight  link,  and  the  companj  will  not  be  liable  for  anj  injury  he  tmmItm 
thereby. 

Appsai.  from  eironit  conrt,  Waabingtou  eoant^. 

Fatjutlerot,  J.— This  is  a  writ  of  error  to  a  jadgment  of  the 
eirouit  court  of  Washington  county,  rendered  in  an  action  of  tras- 
pass  on  the  case,  in  said  court  pending,  February  22, 1887,  in  which 
David  S.  Emmert  ia  plaintiff,  and  the  Norfolk  &  Weatern  R.  Co. 
ia  defendant. 

The  facta  diBoloaed  in  the  record  are  ae  follows:  The  plaintiff, 
Emmert,  in  the  fall  of  the  year  1881,  was  Bwitchman  and  oar-coap- 
ler  in  the  employ  of  the  Norfolk  &  Weeterii  R.  Co.,  at  tiieir  yai-d 
at  Bristol.  As  Buch,  it  was  his  duty  to  ehift  the  cars  and  trains 
rAon.  npon  said  yard,  and  make  np  trains  to  leave  the  station. 

The  shifting  was  done  by<  a  yard  engine  and  an  engineer,  under  the 
direction  aud  control  of  the  switchman  and  conpler  while  engaged 
in  the  operation  of  shifting.  On  tlie  occasion  of  the  alleged  injury 
complained  of,  in  November,  1881,  two  freight  trains  came  into 
the  vard  from  the  east,  very  close  together.  Tlie  first  train  stopped 
on  the  main  track,  and  the  locomotive. which  liad  brought  it  in 
was  detached  from  it,  and  the  yard  engine  was- coupled  to  the  rear 
end  of  the  train  by  the  said  switcltmnu  and  coupler,  and  drew  it 
backward  to  a  switch,  and  pusiied  it  upon  a  side  track.  The  ca- 
boose, which  was  the  rear  car  of  the  train,  was  nnehackled  or  nu- 
conpJed  from  the  car  immediately  iu  front  of  it,  and  tlie  yard 
engine  stood  there  holding  the  caboose  until  the  second  train  came 
in.  The  second  train  stopped  upon  the  track,  aud  the  plaintiff 
brought  the  yard  engine,  with  the  caboose  attached,  oat  upon  the 
main  track,  and  coupled  the  two  cabooses  together,  and  tnen  un- 
coupled the  caboose  of  the  second  train  from  the  cars  in  front  of 
it,  aud  caused  the  yard  engine  to  draw  the  two  cabooses  bade  for 


^d  by  Google 


MASTER  AND   SEKVANT — COUPLING  CARS.  196 

the  purpose  of  patting  tltein  npon  a  track  called  the  ooal-pen 
tracK,  where  the  cabooses  were  usnallT  placed,  and  upon  which  ■ 
caboose  was  tlien  standing.  After  changing  the  ewiteh'leadiiig 
into  the  coal-pen  track,  plaintiff  went  forward,  in  advance  of  the 
moving  cabooses,  for  the  pnrpose  of  coupling  them  to  the  stand- 
log  caboose ;  it  being  the  custom  to  bo  couple  the  cabooses  for  tlie 

?nrpQBe  of  bringing  tliem  out,  wiicn  needed,  to  be  attached  to  trains. 
'lie  plaintiff  took  his  position  by  the  bumper  or  draw-head  of  the 
standing  caboose,  having  given  to  the  engineer  of  tlie  yard  engine 
the  proper  signals,  which  were  strictly  obeyed,  and,  when  he  at- 
tempted to  make  the  coupling,  the  drawheads  or  bnmpei3  passed 
each  other,  the  di'awliead  of  the  moving  caboose  passiug  nnder 
that  of  the  standing  caboose,  and  the  plaintiff  was  caught  between 
the  cabooses.  He  estricated  himselt,  and,  with  assistance,  lie  got 
open  the  engine,  where  he  remained  one  or  two  houi-e,  and  then 
went  to  liis  home,  close  by,  where  he  was  confined  to  his  house 
some  three  or  font*  weeks,  and  then  went'back  into  tlie  employ  of 
the  plaintiff  in  eiTor, — first  in  tiie  depot,  then  on  the  transfer 
platform,  and  afterward  as  a  watchman  at  the  Main-street  cross- 
ing; and  while  so  last  employed,  as  watchman,  he  alleges  that  he 
caught  cold  in  his  injnrcd  hipe,  and  was  laid  up  twelve  montlis. 
It  does  not  a|ije:ir  that  the  plaintiff  ever  claimed  that  he  was 
injured  on  account  of  any  defect  in  the  care,  or  by  the  fault  or 
iiegleot  of  the  railroad  company,  or  its  agents  or  servants,  nutil 
about  a  year  after  the  accident,  when  he  brought  this  anit. 

At  the  sixth  trial  of  the  case  instructions  were  asked  for  and  re- 
fused, and  instructions  were  given  by  the  court  of  its  own,  to 
which  exceptions  were  taken,  and  the  juiy  rendered  a  verdict  ia 
favor  of  the  pbiiitiff  for  the  sum  of  $950.  A  motion  was  made 
to  set  the  verdict  aside,  and  grant  a  new  trial,  upon  the  ground 
that  the  verdict  was  contrary  to  the  law  and  the  evidence;  which 
motion  the  court  ovetTuled,  and  entered  judgment  upon  the  ver- 
dict for  the  plaintiff.  The  declaration,  as  amended,  was  demurred 
to,  and  the  court  overruled  the  demnrrcr;  which  action  of  tlie 
court,  as  well  as  the  refusing  and  giving  instructions  as  aforesaid, 
were  excepted  to,  and  are  assigned  as  error  by  the  plaintiff  in  error. 
Bnt  in  the  view  which  we  take  of  the  ease,  as  presented  in  the  bill 
of  exceptions,  it  will  not  be  necessary  to  consider  any  of  tlio  errors 
assigned,  except  tlie  alleged  en-or  of  the  eonrt's  refusal  to  set  tlie 
verdict  aside,  and  to  grant  a  new  trial.  The  evidence  of  the  plain- 
tiff in  the  conrt  beiow,  who  is  the  defendant  in  error  here,  as  set 
fortli  in  the  bill  of  exceptions,  reveals  a  plain  case  of  coijtributory 
negligence ;  and  shows,  clearly,  that  but  for  the  concurring  fault, 
recklessness,  and  want.of  ordinary  care  by  the  defendant  in  errov 
the  accident  would  not  have  occurred,  and  that  his  injury  was 
caused  by  his  own  gross  negligence,  for  which  the  law  will  not 


^dbvGooglc 


198  SORFOLK   AND   WE8TEEN   E.  CO.  V.  EMMEBT. 

allow  him  a  preminm,  b;  holding  his  employer  to  a  liability  in 
damages. 

The  testimony  of  the  defendnnt  in  error,  ont  of  hia  own  month, 
is  that  his  duticB  as  car  coupler  mid  switchman  wei'e  to  move  cars 
and  trains,  and  make  up  trains,  on  the  yard,  to  shift  cai-s  to  dif- 
ferent points,  and  pnt  tliem  in  their  proper  place  in  trains;  that 
he  was  furnielied  with  a  list;  thiit  the  company  had  oar  inspect- 
ors and  overlianlera  on  the  yard,  whose  duty  it  was  to  look  aronnd 
the  Gal's,  and  see  if  anything  was  wronji;  tiliout  them,  us  soon  as 
tlie  train  came  in ;  that  the  overhanlers  and  inspectoi'S  would  be 
ready  when  the  train  came  in,  and  wonld  commence  at  one  end 
and  go  along,  the  train,  tap  the  wheels,  tighten  tlio  bolts,  etc.; 
that  they  were  always  there  waiting  when  tiie  trains  came;  that 
it  was  the  duty  of  the  inspectors  to  inspect  all  the  cars  and  ca- 
booses; that  it  was  his  duty  not  to  shift  the  cars  until  the  inspect- 
ors and  overhaulei-s  had  gone  over  them,  and  informed  him  that 
tliey  were  all  right :  that  it  was  his  duty  to  have  known  whether- 
the  caboose  which  he  alleges  to  have  been  out  of  repair  had  been 
inspected  or  not,  before  he  shifted  it;  that  he  conid  not  say 
whetiier  it  had  been  inspected  or  not;  that  the  inspectors  were 
there  at  work  upon  that  train  tliat  day ;  that  he  shifted  the  ca- 
boose in  question  just  a  little  while  after  the  train  came  in;  tliat 
he  uncoupled  the  bnmpers  of  the  caboose  from  the  train,  and  it 
was  coupled  with  a  straight  link  ;  that  he  did  not  look  at  it,  but 
stepped  in  and  pulled  out  the  pin,  and  iaid  it  on  the  sill  of  the  ear- 
in  fi-ont,  and  stepped  out  and  waved  the  engineer  (of  the  shift- 
ing engine)  back;  that  the  engineer  was  an  experienced  engineer; 
and  that  when  ho  motioned  or  signaled  to  him  to  come  back,  or 
go  forward,  or  stop,  he  did  exactly  as  he  motioned ;  that  he  was 
taking  the  cabooses  in  on  the  coal-pen  track  w lien  be  was  hurt; 
that  there  was  one  caboose,  an  old  A.  M.  &  O.  caboose,  standing 
on  the  coal-pen  track;  that  he  was  walking  in  front  of  the  two 
moving  cabooses,  ratiier  on  one  side  where  the  engineer  could  see 
him;  that  when  he  got  within  a  car-length  of  the  stationary  ca- 
boose  he  gave  the  engineer  the  sign  of  one  car  length,  by  holding 
np  one  finger,  and  stepping  in  between  the  cabooses,  and  set  tlie 
pin  in  the  bumper  of  the  caboose  that  was  standing  stil),  and 
turned  around  to  take  hold  of  the  link  of  the  car  or  caboose 
tliat  was  coming  np  ;  that  as  he  went  to  pnt  the  link  in  the  otlier 
bumper,  he  discovered  that  the  bumpers  were  going  to  slip  past 
each  other  ;  that  lie  saw  it  was  loose  and  would  slip  by ;  that  ho 
had  to  jerk  his  hand  ont  of  the  way  to  keep  it  from  being  mashed  ; 
and  the  bumper  of  the  moving  caboose  passed  under  the  bumper 
of  the  stationary  caboose,  and  caught  him  between  the  two- 
cabooses  ;  that  he  had  uncoupled  this  caboose  from  the  last  train 
that  bad  come  in ;  that  it  had  tlie  same  link  in  it  when  he  uncoupled 


^d  by  Google 


JtASTEE  AHD  SEKVANT — COUPLING   CABH.  197 

it  from  the  traio  that  he  attempted  to  conple  it  to  the  stationary 
-caboose  with  ;  that  he  left  tlie  link  iu  that  bumper  of  that  oiboose 
when  he  niiconpled  it  from  tiie  train  ;  that  he  hud  been  in  tlie  em- 

Eloy  of  tlie  company  six  or  eight  months,  and  that  dii'ectly  after 
e  weut  into  the  employ  of  the  company  be  diecovered  that  cars 
and  bumpers  were  of  different  heiehts  ;  tliat  to  enable  him  to  do 
his  wort:  as  switcher  and  coupler,  tlic  company  furnished  yard  en- 
gine, engineer,  fireman,  6witcn-barp,  links,  and  pins;  that  tliey  fui^ 
Dished  overhanlei's  to  inspect  curs;  that  the  company  furnished 
straight  links  and  crooked  links  to  couple  cai-s ;  that  wiien  eara 
were  of  eqnal  height,  and  same  pattern,  eti-aight  links  were  used, 
■and  when  cars  were  of  unequal  lieights  they  used  crooked  links; 
that  the  engineer  obeyed  liia  signals ;  that  crooked  links  are  neces- 
sary, l>ecaQse  cars  came  thereof  different  heights,  and  standard  cars 
are  higher  than  A.  M.  &  O.  cai-a,  and  it  is  necessary  to  use  crooked 
links ;  that  commojt  sense  taught  him  that,  and  he  told  by  looking 
whether  one  was  higher.  "  I  was  em  ployed  for  tJiat  business.  It 
was  my  business  to  know  when  to  use  crocked  links,  and  wlien 
not."  Tliat  tlie  crooked  links  were  there;  tliat  if  he  needed 
a  crooked  link  it  was  his  duty  to  get  it  and  use  it,  but  that  he  did 
not  use  a  crooked  link,  because  he  did  not  need  it ;  that  he  could 
hare  coupled  it  witji  a  straight  link  if  it  hadn't  been  out  of  repair; 
that  when  he  uncoupled  the  caboose  from  the  train  he  did  not  look 
to  see  whether  the  bumpers  came  down;  it  did  not  fall  down; 
that  he  saw,  wlien  he  went  to  make  the  coupling,  that  tlie  bumper 
was  not  in  its  right  place,  and  tried  to  raise  it ;  that  it  was  loose  in 
ihe  collar;  that  all  bnmpers  are  loose  in  the  collar,  but  tliiswas 
about  two  inches  looser  tlian  usual ;  that  the  wood  had  worn  away, 
and  this  gare  it  play. 

The  declaration  charges  upon  plaintiff  in  error  knowledge  of  the 
want  of  repair ;  but  there  is  no  proof  of  notice   to,  or  knowledge 

by,  plaintiff  in  error,  of  the  condition  of  the  bumper       

on  the  caboose ;  and  it  was  the  special  duty  of  the  de-  ^fSi'or  coiu 
fendant  in  error  to  have  noticed  the  condition  of  the  JSibm.""** 
hamper  when  he  uncoupled  it  from  the  train,  and  to 
have  reported  it,  if,  in  fact,  it  was  out  order,  and  not  to  attempt  to 
tiouple  cabooses  of  different  heights  with  a  straight  link.  It  was  his 
daty  to  observe  the  cars  and  their  couplings,  so  as  to  determine, 
before  attempting  to  couple  them,  what  kind  of  a  link  should  bo 
□Bed.  The  evidence  clearly  sliows  that  the  coupling  should  have 
been  made  with  a  crooked  link;  and  the  failure  to  obsei've  the 
■disparity  in  the  heights  of  the  di'awheads,  or  the  miscalculation 
of  the  defendant  iu  error  as  to  the  necessity  for  the  use  of  a 
crooked  link  to  effect  the  conpiing  with  in  safety,  and  his  failure 
to  use  a  crooked  link  for  the  operation,  was  negligence  on  the  part 
of  tlie  defendant  in  error,  but  for  which  the  accident  would  not 
have  occurred. 


^dbyGoOglc 


198  KOltFOLK   AND    WE8TEEN    E.  CO.  V.  EMMEBT. 

The  law  does  not  offer  a  bonus  to  employees  for  recklessness  or 
careleesoesa  in  the  discharge  of  their  duties,  b;  imposing  li'abih'tj'' 
upon  employers  for  injuries  which  are  the  result  of  their  own  concur- 
ring and  eo-operatiug  fault  or  negligejice.  This  case  is  controlled  by 
the  recent  and  ofc-repeiited  decisions  of  this  court.  Clark's  Admr. 
V.  Richmond  &  D.  E.  Co..  78  Va.  709 ;  s.  c,  18  Am.  &  Eng.  U.  K. 
Cas.  78 ;  Norfolk  &  W.  E.  Co.  z.  Ferguson.  79  Y».  2il ;  RuddV 
Admr.  V.  Eichinond  &  D.  R.  Co.,  80  Va.  546  ;  s.  c,  23  Am.  & 
Eng.  E.  E.  Cas.  253 ;  Darraeutts  v.  Chesapeake  &  O.  E,  Co.,  30 
Am.  &  Eng.  R.  R.  Cas.  157. 

The  trialjudge  who  heard  and  considered  tlie  evidence  given  by 
the  witnesses,  ayion  six  trials  of  this  case,  filed  his  opinion  as  part 
of  the  i-ecord.  And  curiously  enongh,  he  refused  to  set  aside  the 
verdict  and  grant  a  new  trial,  although  he  said :  "  The  plaintiff  in 
this  case  (defendant  in  error),  if  guilty  of  negligence,  was  not  in- 
tentionally BO.  It  was  Bnch  negligence  as  very  often  happens  to 
men  too  lethai^ic  or  incautious,  and,  owing  to  their  peculiar  mental 
habit,  must  be  regarded  as  more  their  misfortune  than  their  willful 
fault.  The  plaintiS  could  not  be  supposed,  in  this  case,  to  have 
wilfully  courced  the  injury,  but  he  thoughtlessly  ran  npon  it;  and 
this,  in  strict  law,  was  a  violation  of  his  contract  with  his  em- 
ployer, and  of  his -duty.  In  view  of  this  evidence,  the  jury  may 
have  tlionglit  that  both  plaintiff  and  defendant  were  negligent,  and 
that,  as  applied  to  this  case,  tin;  defense  of  contributory  negligence 
was  a  hard  defense,  and,  as  there  was  mutual  fault,  the  plaintiff 
eltonld  not  be  compelled  to  bear  all  the  loss." 

We  are  of  opinion  that  the  circuit  court  erred  in  refusing  to  set 
aside  the  verdict  of  the  jury  and  to  grant  a  new  trial ;  and  that  the 
judgment  complained  of  must  be  reversed  and  annulled,  and 
the  cause  be  remanded  to  the  circuit  court  of  Washington  county, 
with  directions  to  set  the  verdict  aside,  and  award  a  new  tiiaL 
Revel's  'li. 

Employaa  Knowing  of  Defeci  in  Car,  Rendering  Coupling  Dangerous,  l» 
Oulity  of  Contributory  Negligence  if  he  Proceed!  without  Exantfnalion. — 
Chicago,  etc.,  R.  Co.  e.  Warner,  18  Am.  &  £Dg.  K.  B.  Caa.  100.  See  aUo 
note  ante,  p.  16S.  ' 


^dbvGooglc 


JLAHJiUt  AUD  amtVAJril — UOUPLINU  UAUS. 


Snuts,  Admr. 

V. 

South  Cakolima  E.  Co. 
{Adeanee  Cau,  South  Carolina.     April  20,  1887.) 

tt  Is  not,  jMr  te,  negligeace  for  a  railroad  compaD;  to  tike  from  a  connect- 
ing  road  »  car  oot  provided  with  suitable  appliances  for  coupling,  f  1471 
Ueo.  St.  SoQtb  Car.,  requiring  cojnpitDies  in  that  State  "to  deliver  with 
due  diligence  all  csrs  wholly  or  parti;  loaded  nith  freight  oonsigaed  to 
points  oD  connecting  roads."  Nor  is  it,  prr  le,  negligeace  when  the  car  is 
constructed  on  the  old  plan,  so  that  tbs  coupling  must  be  made  from  above, 
for  the  company  to  put  it  on  its  trains  without  notice  of  the  peculiarity  to  ill 
brftkeman. 

It  ia  the  province  of  the  trial  court  to  determine,  in  the  flcgt  inatance, 
whether  a  prima  fade  case  of  negligence  has  been  made  out,  before  sub- 
mitting the  question  to  the  jury;  aud  until  a  prima  facte  case  is  made  out 
there  can  be  no  question  Of  contributory  negligence  on  the  part  of  the 
plaintiff. 

Appeal  from  circuit  coart,  Barnwell  count;. 

O.  W.  Croft,  James  E.  Davie,  and  O.  G.  Jordan  for  Sitctnt, 
appellant. 

Brawley  <&  BamweU  and  Bobert  Aldrich  for  the  ndlwaj 
company,  respondent. 

MoGoWAN,  J. — Jennings  A.  Owens,  a  brakeman  id  tbe  service 
of  the  defendant  eonipanv,  ^ras  killed,  while  in  the  line  of  his 
daty,  conplitig  care  at  Lingley,  on  Junnary  29,  1884  j  and  this  ac- 
tion is  brongfit  by  bis  administrator,  W,  Gilniore  Simms,  against 
tlie  company   for  $10,000   damages,     Tiie   complaint  s-io™. 

alleges  tiiat  the  defendant  corporation,  unmindful  of  its  duties, 
negligently  placed  in  tlie  train  of  cars  to  which  deceased  was 
assigned  to  work  freight  care  that  were  not  of  a  safe  and  approved 
make,  nor  provided  with  safe  and  approved  bnmpere  and  coup- 
lings; and  also  tliat  they  placed  in  charge  of  the  engine  pulling 
the  train  an  engineer  who  was  careless,  incompetent,  and  nnfit  to 
perform  the  dotiea  of  an  engineer,  etc.  But  there  was  no  proof 
whatever  of  the  latter  allegation  ;  and  the  only  question  was  as  to 
the  first,  in  regard  to  freight  ears  "not  being  provided  with  safe 
and  approved  bumpers  and  couplings."  The  cause  was  heard  by 
Judge  Cothran,  and  a  jury. 

It  appeared  that  when   the  deceased   met  bis  death  he  was  in 


^d  by  Google 


200  SOCMB  V.  aODTH  OABOUNA  B.  OO. 

the  act  of  oonpUng  to  a  c;ib  car,  in  tlie  rear  of  a  train,  a  Geoi^ 
railroad  box  car,  which,  as  it  happened,  had  "a  bumper"  of  & 
different  pattern  from  tliose  in  use  on  tlie  Soath  Carolina  R., 
and  to  which  tlie  deceased  was  accustomed,  the  difiereuce  being 
that  the  bumper  on  tlie  South  Carolina  cars  is  so  made  as  to  allow 
eaffieient  space  between  the  cars  for  the  coupler,  in  the  act  of 
conpiing,  to  stand  on  the  ground,  while  those  of  the  Georgia  rail- 
roaa  do  not  have  space  enough  between  the  cars  to  allow  the 
coupler  with  safety  to  stand  on  the  ground,  bat  be  must  get  un 
the  bumper-rail  or  platform,  and  cuuple  from  above.  Tliejudgu 
says :  "  In  this  case  the  proof  is  that  there  was  a  car,  with  tlm 
engineer  backing  his  train,  for  the  purpose  of  attaching  a  car,  at 
about  the  speed  of  a  man  walking.  Tlici-e  was  a.  person  on  top  of 
the  backing  train,  at  the  time,  giving  the  usual  signals  to  the  en 
gineer.  Tlie  deceased  stood  leaning  with  his  arm  upon  the  end  of 
the  car  that  was  to  be  attached,  waiting  the  coining  of  the  approach- 
ing train,  and  ready  to  effect  a  couplino.  On  tlie  end  of  t!ie  car 
upon  which  he  leaned,  as  well  as  npon  the  end  of  the  approaching 
car,  was  an  apron, — some  otlter. names  for  it,  '  bumper,'  '  rim,' — 
(called  in  some  of  the  books  'double  dead-woods').  When  these 
two  cars  were  properly  coupled,  it  was  afterward  ascertained,  by 
actual  measurement,  that  the  outer  apace  between  the  apron,  or 
dead-woods,  or  bumper  rims,  was  nine  and  a  half  inches,  which,  as 
segments  of  a  circle,  come  together,  or  nearly  together,  at  the 
point  of  coupling  in  the  center.  It  is  an  apparent  fact  that  one  of 
ordinary  height,  and  weighing  175  pounds,  such  as  the  deceased  is 
said  to  liare  been,  could  not  have  stood  within  the  space  between 
the  aprons  or  dead-woods,  and  have  received  the  impact  of  the 
approaching  car  without  fatal  losults  to  life.  Acooraing  to  the 
testimony  of  Komley,  the  plaintiff's  witness  and  an  expert,  it 
could  only  be  done  by  mounting  upon  the  apron  or  dead-wood  of 
the  car  to  be  coupled.  Was  it  the  duty  of  the  deceased  to  have 
done  so?  His  business  waste  couple  cars.  For  tlus  he  must  be 
assumed  to  have  had  fitness.  The  testimony  shows  that  he  had 
experience.  It  is  contended,  however,  by  the  plaintiff  that  it  was 
negligence  in  the  defendiint  to  use  on  their  road  cars  of  the  pattern 
of  the  one  that  was  to  be  attached,  because  it  wasof  an  old, unsafe. 
and  abandoned  character.  A  railroad  ia  not  bound  to  discard  civs 
of  an  old  pattern  because  the  coupling  of  them  to  cars  of  a  new 
pattern  is  attended  with  more  danger  than  the  coupling  of  new 
cars  with  each  other,  and,  a  fm-tiori,  the  railroad  would  not  bo 
anthorized  in  refusing  to  receive  and  attach  to  their  trains  and 
transport  such  cars  of  an  old  pattern  when  delivered  to  it,  by  other 
connecting  roads,  which  under  tlie  railroad  law  of  the  State  they 
are  bound  to  take  and  transport,"  etc. 

Upon  the  close  of  the  plaintiffs  evideDce  the  defendant  moved 


^d  by  Google 


MASTEK  AND   SEEVANT — COUPLING   CABS.  201 

for  a  nousuit  Dpoii  tlie  ground  that  the  plaintiff  had  not  offered 
safficient  proof  to  entitle  him  to  go  to  the  jury,  which  the  jndge 
granted,  aad  the  plaiotifi  appeals  to  thiB  court  upon  the  ^ 
following  grounds;  "(1)  Because  hie  honor  ruled  » 
tliat  there  wae  no  evidence  tending  to  show  iiegligeiiee 
on  the  part  of  the  defendant,  wh^eas  it  appears  from  the  testi- 
mony of  Edward  Komley  that  cars  constiucted,  as  the  proof 
showed  the  old  Georgia  cars  to  have,  been,  tended  to  show  negli- 
gence on  the  part  of  the  defendant,  and  his  honor  erred  in  not  bo 
deciding.  (2)  Because  tlie  evidence  of  Edward  R'omley  tended  to 
show  that  no  railroad  operated  with  prudence  now  used  cars  sucli 
as  the  car  which  did  the  killing  was  proved  Co  be.  Such  evidence 
tended  to  show  neglij^noe.  and  this  was  a  fact  belonging  exclu- 
fiivelj  to  the  jury.  (3)  Because  it  appears  from  tlie  evidence  of 
Edward  Romley  that  cars  constrncted  ae  the  oid  Georgia  car  waa 
shown  to  have  been,  were  dangerous,  unfit,  and  unsafe  to  be  used 
on  a  railroad,  and  that  the  mannfacture  of  the  same  has  been  dis- 
continned.  These  facts  not  only  tended  to  prove  ne<;!igence;  but, 
if  true,  were  positive  and  conclusive  proof  of  negligence  on  the 
part  of  the  defendant,  and  therefore  alionid  have  been  submitted 
to  the  jury.  (4)  Because  it  appears  from  the  testimony  of  A.  0. 
Small  that  cai-s  made  as  the  old  Georgia  oar  wae  proved  to  be, 
were  dangerous,  and  ttie  manufacture  of  such  cais  had  long  since 
been  discontinued.  Such  facts  tended  to  show  negligence  on  the 
part  of  the  defendant,  and  it  was  error  in  not  submitting  the  case 
lo  the  jury.  (5)  Because  it  appeared  from  the  testimony  of  S.  S. 
Lee  that  the  spring  in  the  rear  of  the  drawbar  was  broken,  and  it 
further  appeai'ed  that  such  break  might  have  been  discovered  by 
the  exercise  of  ordinary  care  oD  the  part  of  the  defendant;  that 
sach  evidence  tended  to  Bhow  negligence  on  the  part  of  the  de- 
fendant, which  was  a  question  excTusively  for  the  jury,  and  it  waa 
error  in  not  submitting  the  ciise  to  the  jury,  (6)  Because  from 
the  evidence  of  S.  S.  Lee  and  W.  A.  O.  McGowan  it  appears  that 
the  old  Georgia  car  was  not  a  safe  and  proper  car  to  be  coupled, 
and  that  the  defendant  might  have  known  this  by  exercising 
ordinary  care.  (7)  Becauee,  in  reaching  tlie  conclusion  to  grant 
the  nonsuit,  his  honor  held,  as  a  matter  of  fact,  that  the  cat's  at 
the  end  where  the  coupling  waB  made  were  only  nine  inches  apart, 
and  that  it  wae  apparent  to  any  one  tliat  it  was  dangerous  to 
attempt  to  make  the  coupling,  and  hence  lie  granted  tlie  non-suit. 
It  ie  snbnaitted,  to  make  eacli  a  deduction,  the  presiding  judge 
neeessanly  passed  upon  a  question  of  fact  which,  in  his  judgment, 
showed  contributory  negligence  on  the  part  of  the  plaintiffs  intes- 
tate, and  in  this  he  erred,  for  the  fact  wiiether  tlie  deceased  con- 
tributed by  hie  negligence  to  the  injury  was  a  question  of  fact 
which  in  all  cases  must  be  submitted  to  the  jury.     (8)  Because, 


^d  by  Google 


309  SIMMS  V.  SOUTH   CAROLINA    R.  CO. 

from  the  teBtiniony,  it  appeared  that  the  old  Georgia  car  whiclr 
did  the  killiug  was  nnlike  the  South  Carolttia  R.  care,  upon 
which  plaiiitiErB  intestate  was  accuBtomed  to  work;  that  it  was 
different  in  its  conetriiction,  far  more  daiigeroas  to  couple,  and 
there  waa  no  testimony  showing  tliat  the  deceased  was  warned  of 
tho  extra  hazard  in  coupling  sucli  cara ;  that  eucIi  teetimony  tended 
to  show  negligence  on  the  pitrt  of  the  defendant  for  usmg  such 
extra-'nazaraons  cars,  without  giving  notice  to  its  employees  of  the 
extniordinary  risks  they  run  in  coupling  the  same.  It  is  snl*- 
initted  that  siicli  evidence  tended  to  show  negligence  on  the  part 
of  the  defendant,  and  his  honor  erred  in  not  submitting  the  case 
to  the  jury,  (9)  Because,  from  the  whole  testimony,  it  is  mani- 
fest that  there  was  evidence  which  tended  to  prove,  and,  if  uncon- 
tradicted, did  prove,  negligence  on  the  part  of  the  defendant; 
and  it  was  therefore  error  in  his  honor  deciding  that  there  was  nO' 
evidence  sufficient  to  go  to  the  jury." 

An  appeal  from  an  order  of  nonsuit  for  the  want  of  sufficient 
evidence  is  always  embarrassing  to  this  court.  In  actions  purely 
legfil  we  are  liEnited  to  the  correction  of  errore  of  law,  and  are  ex- 
cluded from  reviewing  the  evidence;  yet  an  appeal  from  an  oi-der 
dismiBsing  a  complaint  upon  the  ground  that  the  plain- 
oof?  tiff  had  not  proved  enongli  to  entitle  liim  to  go  to  the  ' 
"""■  jury  makes  it  necessary,  in  one  sense,  to  consider  the 
testimony.  In  order  to  prevent  confusion  in  dealing 
with  facts  in  a  law  case,  this  court  has  more  than  once  endeavored, 
ns  far  as  it  could,  to  define  the  exact  limits  of  the  judge's  province, 
as  well  as  that  of  tlie  jury.  "We  held,  in  the  case  of  Hooper  v. 
Railroad  Co.,  21  s,  c,  549 :  "  It  is  true,  as  this  conrt  has  often 
rnled,  that  a  nonsuit  for  want  of  evidence  should  not  be  gran|ed 
where  there  is  any  evidence  to  go  to  the  jury,  wiiose  exclusive 
province  is  to  decide  upon  tlie  weight  of  conflicting  testimony. 
But  we  do  not  underetand  that  the  meaning  of  this  rnle  is  that 
every  question  involving  a  fact  mnst  go  to  llie  jury  whether  there 
is  or"  is  not  proof  to  support  it.  If  tliere  is  no  conflicting  evidence, 
and  all  is  on  one  side,  it  may  be  thedutyof  a  judge  todirectano» 
suit,  as  it  would  l)e  a  nugatory  thing  to  send  such  an  unsupported 
case  to  the  jury,  [Authorities.]  A  iiigh  authority  expresses  tlie 
principle  in  this  form:  'The  judge  has  to  say  whether  any  facta 
liave  been  established  by  evidence  from  which  negligence  raav  be 
reasonably  inferred.  Tiie  juiore  have  to  aay  whether,  from  these 
facts  wiien  submitted  to  them,  negligence  ought  to  be  inferred. 
The  relevancy  of  evidence,  and  whether  any  exist  which  tends  to 
prove,  or  is  capable  of  proving,  negligence,  is  for  the  court.* 
Pierce,  R.  312.'* 

It  is  certainly  tme  that  neither  the  circuit  judge  nor  this  conrt 
can  in  a  law  case  weigh  conflicting  testimony.     Bnt  at  the  same 


^d  by  Google 


MASTER  AND  BEBVANT — COUPLING   CAE8.  20;l 

time  it  is  tlie 'province  of  tlic  circuit  judge,  in  the  first  iit&taiice,  to 
determine  whether  ^  prima  facie  case  has  been  made  ont ;  that  ix 
tOBaj,  whether,  regarding  the  evidence  as  trne,  the  case  asit  stan<!^  . 
ie  such  as  to  authorize  the  jury  properly  to  find  for  the  plaintiff. 
If  so,  the  case  should  go  to  tlie  jury.  It  will  be  observed,  however, 
that  tlie  conrt  is  still  obliged,  in  one  sense,  to  consider  the  effect  of 
the  evidence, — not  as  to  its  credibility,  but  as  to  its  pertinence  to 
the  issues  made.  Now,  according  to  this  nile,  can  we  say  that  the 
judge  committed  error  of  law  in  the  particul:irB  indicated  'i 

Ezoeption  5  charges  that  one  witness  trst^tied  tliaC  the  spring  lit 
the  rear  of  the  drawbar  of  the  car  to  be  coupled  was  broken,  and 
that  the  defendant  corporation,  with  ordinary  care,  might  havi^ 
known  it.  We  liave  not,  however,  been  able  to  find  any  evidenct; 
eoDDectiiig  the  alleged  defect  with  the  injury,  for  the  infliction  of 
which  thei-e  was  ample  cause  in  the  want  of  Euftident  space  be- 
tween the  ears  for  a  man,  while  standing  on  the  gronnd,  to  make 
Uie  coupling  safely.  • 

Exceptions  1.  2,  3,  4,  6,  and  7  complain  that,  inasmuch  as  tlie 
bumper  of  the  Georgia  car  to  be  coupled  was  of  a  dif- 
ferent pattern  from  those  on  the  South  Carolina  Rail-  conpiht  nor 
road,  and  conld  not  be  safely  coupled  in  the  same  man-  SKJt-B^''cIft 
ner  in  which  cars  were  coupled  on  that  i'oad,Biich  a  car  rLuncc 
was  not  "a  suitable  appliance,"  and  its  use  alone  af- 
forded evidence  of  negligence  on  the  part  of  the  company.  In  the 
interest  of  commerce  our  law  requii-es  rnilroad  companies  "to  de- 
liver with  due  diligence  all  cars  wholly  or  partly  loaaed  with  freight 
consigned  to  points  on  connecting  roads,"  etc.-  See  section  1471» 
Gen.  St,  We  Ciinnot,  tliei-efore,  say  tliat  the  judge  erred  in  hold- 
ing that  "the  raihoad  wonld  not  be  authorized  in  refusing  to  w- 
eeive  and  attach  to  ijieir  train  and  transport  such  cars  of  an  old 
pattern,  when  delivered  to  it  by  other  connecting  roads,  which 
under  the  railroad  law  of  the  state  they  are  bonnd  to  take  and  trans- 
port." 

But  it  was  further  urged  that,  if  the  defendant  company  were 
bound  to  attach  and  carry  the  Georgia  car,  it  was  never- 
theless their  duty  to  give  the  coupler  notice  of  the  ex-  ^«BKVMTi"" 
tra  hazard  in  making  the  coupling,  and  the  mere  omis- 
rion  to  do  8o was  some  evidence  of  "the  want  of  due  care;"  and 
at  least  the  question  should  have  been  left  to  the  jury.  It  is  find 
of  the  duties  of  a  railroad  company  "  to  notify  servants  of  pecnliur 
hazards  whicit  avc  not  known  or  obvions  to  them,  but  it  ie  also  a 
role  that  employees  ai-e  presumed  to  take  the  natural  risksof  their 
employment,  and  not  arising  from  its  negligence."  Couch  "O.  R:iii- 
road  Co.,  22  s.  c,  565.  The  intestate  of  plaintiff  wasacar  coupler. 
and,  as  there  was  no  proof  that  his  engagement  was  limited  X'* 
ooQpliugcarsof  theSouthOarolina  K.  pattern,  itmust  bcconsiderci) 


^d  by  Google 


*20i  8IHH8  V.  SOUTH  CAROLINA   R.  CO. 

as  incloding  all  can  wbich  might  be  rightly  carried  on  his  road, 
and  therefoie  this  coupling  wae  within  liis  engagement.  Besides, 
.  if  the  danger  was  "  peculiar,"  can  it  be  said  that  it  was  "  not  known 
or  obvious)"  TIib  defendant  company  did  not  construct  the  oar 
with  the  peculiar  bumper,  but  had  it  temporarily  in  their  posses- 
aion  under  the  reqnii'cments  of  the  law.  What  other  employee  of 
the  ideal  thing  called  the  company  was  likely  to  know  as  much 
about  the  peculiar  construction  of  the  stranger  bumper  as  he  wliosu 
duty  it  was  to  couple  it  to  the  train)  Assuming  that  he  was  com. 
petent  for  his  business,  and  was  aware  of  its  dangerous  character, 
it  seems  strange  that  he  did  not  see  at  a  glance  that,  if  be  attempted 
to  couple  standing  between  the  cars,  he  would  be  crualied  to  death. 
Somethtiig  must  be  left  to  tlie  sense  and  the  solution  of  persons 
having  intelligence.  We  cannot  say  that  the  judge  cotninitted  er- 
ror of  law  in  holding  that,  under  the  ci  1*0 u instances  of  the  case,  the 
absence  of  notice  of  peculiar  danger  in  making  the  coupling  was 
not  a  breach  of  the  duty  of  the  company  to  exercise  proper  care  in 
making  such  pj'ovisiori  for  its  employees  as  to  enable  them  to  pros- 
ecute their  work  "  witli  a  reasonable  degree  of  safety  to  life  and 
aecurity  against  injury."  It  seems  to  us  that  until  a  prima  facie 
case  of  negligence  is  made  out  against  the  defendant,  there  can  be 
no  such  question  as  that  of  contributory  negligence  on  the  part  of 
the  plaintiff  or  his  intestate. 

Tiie  judgment  of  this  court  is  that  the  judgment  of  the  circnit 
«0Qrt  be  amrmed. 

Simpson,  C,  J.,  and  MoIver,  J.,  concur. 

Liability  to  Car-Coupler  for  Defect*  In  Cars  of  Connecting  Company. — 
The  correctaesB  of  tbe  conclusion  of  the  court  in  the  principal  case  is  not 
free  from  doubt.  The  obligation  of  a  railroad  company  to  pro?ide  safe  and 
suitable  cars  and  appliances  is  not  the  primarj  question.  Whatever  may  bo 
its  duty  in  that  regard,  so  far  as  its  own  cars  and  appliaucea  are  conceraed, 
the  questions  here  involved  are:  first.  Does  the  ordinary  rule  of  liability  of 
a.  railroad  company  to  its  servants  as  to  its  own  cars,  apply  to  those  which  it 
receivea  from  a  connecting  ruilroad  F  Second.  What  application  has  a  stat- 
ute impoeing  in  general  terms  the  duty  to  transport  with  due  diligence,  etc., 
the  cars  of  a  connecting  road? 

Where  the  Railroad  Company  has  been  Held  Llabls.—In  Michigan  Cent. 
R  Co.  V.  Smithson  (Mich.,  1881),  1  Am.  &  Eng.  B.  R.  Caa.  101,  it  was  held 
that  where  the  coupling  apparatus  on  a  car  received  from  another  company 
for  transportation  is  diflcrent  from  that  employed  on  the  company's  own  cars, 
and  of  more  dangerous  construction,  this  is  a  risk  nhicli  the  servants  em- 
ployed to  couple  cars  must  be  taken  to  run.  There  is  no  obligation  to  notify 
them  of  the  increased  danger,  it  being  apparent  to  any  one  who  should  at- 
tempt to  perform  the  coupling.  The  court  observes:  "But  we  have  had  fi>r 
our  inspection  on  the  argument  a  model  of  the  donble  dead-woods  which 
caused  the  injury,  and  it  acems  impossible  to  give  the  coupler  any  better  or 
more  effectual  notification  of  its  presence,  and  of  the  difference  from  thoae 
belonging  to  the  defendant,  than  their  very  form  necessarily  gives  of  itself. 


^d  by  Google 


MASTKB   AND   SKEVANT — COUPLING   CaKS.  205 

The  differeDGS  is  very  marked  and  Btriking,  and  it  is  quite  impossible  to 
couple  the  double  dead-woods,  or  to  approach  tliem  for  the  purpose,  with 
iwy  degree  of  attention,  without  observing  it.  This  is  so  whether  the 
coupling  is  done  in  the  da;  time  or  in  the  night  time.  For,  in  tlie  night, 
every  switchman  has  his  lantern  with  him,  or  should  have  on  all  occasions. 
If,  therefore,  the  switchman  were  to  declare  that  he  attempted  to  couple  the 
double  dead~wocdB  without  noticing  how  the;  differed  from  the  cars  of  de- 
feudaut,  the  conclusion  would  be  inevitable  that  he  had  gone  heedlessl;  into 
the  peifoTmance  of  a  duty  requiring  more  care,  and  th»t  he  had  not  allowed 
his  eyes  to  inform  him  what  was  before  him." 

In  Baldwin  o.  Chicago,  etc.,  R.  Co.,  60  Iowa,  680,  it  was  held,  that  it 
does  not  constitute  negligence  for  a  railroad  company,  in  the  ordinary  course 
of  busioesB,  to  receive  aod  transport  cars  of  other  roads  in  general  U£e, 
-which  may  not  be  constructed  with  the  most  approved  appliances,  and  that 
the  transportation  and  use  of  such  cars  by  the  company  is  one  of  the  risks 
i*hich  BD  employee  assumes  in  undertaking  the  employment. 

In  Ballon  v.  Chicago,  elc,  R.  Co.,  54  Wis,  257;  a.  c,  5  Am.  &  Eng.  R.  R. 
Caa.  4B0,  it  was  held,  that  one  railroad-  receiving  a  loaded  car  from  anotlier, 
uid  running  it  upon  its  own  road,  is  not  bound  to  repeat  the  testa  which  are 
proper  to  be  used  io  the  original  conaCruction  of  such  car,  but  may  assume 
that  all  parts  of  the  car  which  appear  to  be  in  good  condition  are  so  io  fact. 
The  court  observes :  "la  such  o  case,  it  would  seem,  upon  principle,  that  the 
company  so  receiving  a  loaded  car  from  another  company  is  entitled  to  the 
benefit  of  the  pmsumption  that  such  car  had  been  properly  constructed  of 
suitable  material,  and  had  passed  the  inspection  of  some  one  of  ordinal^ 
skill  in  such  matters,  and  that  it  was  reasonably  fit  for  the  use  to  which  it 
was  devoted  when  so  received." 

A  railroad  company  is  not  bound  to  discard  cars  of  an  old  style  because 
the  coupling  of  them  with  cars  of  a  new  pattern  is  attended  with  increased 
danger.  Ft.  Wayne,  etc.,  R.  Co.  ^.  Gllderaleeve,  83  Hich.  188:  Indianap- 
olis, etc.,  R.  Co.  e.  Flanigan,  77  III.  865;  Toledo,  etc.,  R.Co.  ti.  Aslibuij,  84 
111.  439;  Toledo,  etc.,  R.  Co.  v.  Black,  68  111.  112;  hut  if  the  coupling  of  a 
particular  car  should  be  too  short  the  company  is  hable,  Toledo,  etc.,  R.  Co. 
V.  Fredericks,  71  111.  304;  Crutchfield  e.  Richmond,  etc.,  R.  Co.,  78  N.  C. 
aOO;  or  defective,  Le  Claire  v.  First  Division,  etc.  R,  Co.,  20  Minn.  8;  or  a 
portion  of  the  car  adjacent  to  the  coupling  out  of  order,  Wcdgewood  e.  Chi- 
cago, etc.,  R.  Co..  41  Wis.  478;  s.  c.  44  Wis.  44. 

Of  these  autboriiies,  that  directly  in  point  is  Sfichigan  Cent.  R.  Co.  e. 
Smithson,  1  Am.  &  Eng.  R.  R.  Ca^.  101.  This  case  is  plainly  distinguisha' 
ble  from  the  principal  case,  at  least  in  the  fact  that  in  the  former  it  appeared 
on  the  trial  that  brakemen  were  frequently  called  upon  to  make  up  trains 
composed  of  such  cars,  while  in  the  latter  this  apparently  important  fact  ia 
assumed  rather  than  established  by  the  evidence. 

Where  the  Railroad  Company  has  been  Held  Not  Liable.— In  Fa;  v.  Min- 
neapolis, etc.,  R.  Co.,  80  3Iinn.  231;  a.  c,  11  Am.  &  Eng.  R.  R.  Cas.  193, 
the  defendant  received  into  his  service  from  another  railroad  company  a 
freight  car  which  proved  to  be  out  of  rejjair,  and  which  it  had  neglected  to 
inspect  and  repair  within  a  reasonable  time  thereafter.  The  defendant,  a 
brakeman,  in  attempting  to  couple  the  t»T  in  question  with  another  car,  was 
severely  injured  in  consequence  of  its  defective  and  imperfect  condition, 
which  was  not  known  to  him.  but  was  discoverable  upon  proper  inspection. 
Held,  that  as  respects  such  defects,  the  company  was  answerable  for  the 
same  degree  of  care  and  diligence  in  the  management  and  use  of  a  foreign 
car  received  into  iU  service,  as  in  the  case  of  its  own  cars  in  like  circum- 

In  Gottlieb  e.  New  Tork,  etc.,  R.  Co.  (N.  Y.  188S),  34  Am.  ft  Eng.  R.  R. 


^d  by  Google 


300  SIMMS  V.  SOUTH   CAROLINA   B.  CO. 

Caa.  431,  it  wu  held  ander  limilu  facta  to  ttaoM  in  tlie  priucipal  caae,  that 
the  company  was  liable.  The  court  obaerres:  "  We  think  all  the  aathoiities 
bold  that  the  compauj  drawing  the  cara  of  another  company  over  its  road 
owes,  in  reference  to  such  can,  some  duty  to  its  employees.  It  is  not  bouod 
to  take  such  uara  if  they  are  known  to  be  defective  and  unaafti.  Even  if  it 
is  bound  to  make  testa  to  discover  secret  defects,  and  is  not  responsible  fur 
■Dch  defects,  it  is  bonnd  to  iospect  foreign  cars  just  bb  it  woulo  inspect  its 
own  cars.  It  owes  the  duty  of  inspection  as  master,  and  ia,  at  leaat,  respon- 
■ible  for  the  conaequences  of  such  defects  as  would  be  disclosed  or  discov- 
ered by  ordinary  inspection.  .  .  .  The  employees  can  no  more  be  said  lo 
assume  the  risks  of  such  defects  in  foreign  cars  than  in  cars  belonging  to  the 
company.  As  to  such  defects,  the  duty  of  the  company  ia  the  same  as  to  all 
cars  drawn  over  its  road," 

See  also.  St.  Loui^  etc.,  R.  Co.  v.  Vatariun,  06  Ind.  511. 

In  O'Neil  «.  Railroad  Co.,  B  Fed.  Rep.  887,  it  was  held;  "That  the  de- 
fendant was  bound  that  no  car,  whether  its  own  or  a  foreign  car,  should  be 
otherwise  than  reasonably  and  adequately  safe  for  its  employees  to  handle 
and  to  manage  in  the  ordinary  conduct  of  their  business;  that  when  a  railroad 
-company  hauls  over  its  own  road  cars  not  belonging  to  it,  if  an  accident  occur 
from  their  being  not  reasonably  safe  or  adequate  under  any  circumstances 
for  the  business  for  which  they  are  employed,  and  the  accident  occurs  with- 
<out  the  negligence  of  the  employee,  the  company  must  respond  thereto,  and 
that  the  question  in  such  case  is,  "  Was  the  car  reasonably  and  adequately 
.aafe  for  the  emplnjee  in  handling  the  same  ?" 

Effect  of  Statutes  and  Contracts  upon  Company's  Liability, — In  Smith  r. 
Potter.  46  Hich.  358;  i.  c,  3  Am.  &  Eng.  R.  R.  Caa.  UO,  a  brakeman  in 
coupling  freight  cars  had  his  arm  crushed  by  a  looaaned  dead-wood  on  a  ciir 
which  had  come  from  anotlier  road.  Itwaathe  business  of  inspectors  em- 
ployed on  both  roads  to  see  that  cars  transferred  were  in  proper  condttinn. 
And  there  was  no  claim  or  showing  that  they  were  not  competent.  It  «:.% 
held  that  although  the  brakeman  could  not  recover  upon  other  grounds,  Iht; 
statutes  of  Michigan  made  it  the  duty  of  every  railroad  to  receive  and  for- 
ward cars  of  other  roads,  impartially  and  diligently.  But  that  this  did  not 
require  the  transfer  of  cars  unfit  for  passage.  It  did  require  that  no  unneces- 
sary delajs  or  hindrances  should  oe  interposed,  and  that  all  precautions 
against  the  use  of  improper  cars  should  be  Mopted  with  reference  to  reaaon- 
able  despatch. 

In  Chicago,  etc.,  R.Co.  «.  Avery,  109  III.  814;  s.  c,  17  Am.  &  Eng.R.  R. 
Gas.  649,  it  was  held  that  a  railroad  company  cannot  divest  itself  of  this  duty 
to  its  serVauta  for  their  aafety  and  protection  by  a  contract  with  auch  other 
companies,  whose  cara  are  used,  that  the  latter  ahall  keep  them  in  repair. 
The  general  rule  is  that  the  employer  is  bound  to  use  due  diligence  in  pro- 
viding and  maintaining  safe  machinery  and  instrumentalitiee  to  be  handled 
-And  used  by  his  employees  without  regard  to  the  ownarship  of  the  same. 


^d  by  Google 


lUSTJJlB  A«D  SEttVAN'F — COUPLINQ  CABS. 


Illinois  Ckntb&l  B.  Co. 
{Advmet  Cait,  lomt.  •  October  36,  1887.) 

Flainti^  a  bnkenua  in  defendant's  emplo;,  waa  injured  while  endeavot- 
ing  to  UDCouple  can  in  motioa.  In  an  action  for  damages  the  petition  al- 
leged that  tbe  coupling  between  the  eng^ine  and  car  was  defective,  and  that, 
wBile  the  plaintiff  wa«  endenTOriDe  to  uncouple  tfaem  the  engine  was  negli- 
gently moTed,  and  he  was  "  pushed,  carried,  and  crowded  "  along  the  track 
to  a  cattle-guard,  into  which  oe  fell  and  was  run  over.  The  evidence  showed 
that  he  Toluntaril;  remained  between  the  engine  and  car,  cndeaTorinff  to  un- 
•coaple  them,  and  walked  to  the  guard.  A  written  contract,  signed  by  the 
brakeman,  advising  him  that  the  uncoupling  of  moving  cars  is  dangerous  and 
ia  forbidden,  was  excluded  at  the  trial.     IMd  : 

1.  That  the  contract  was  admisaibte  in  evidence,  not  onl;  tor  the  purpose 
of  showing  notice  of  the  danger,  but  also  to  shon  the  existence  of  the  rule, 
and  notice  ot  it  to  tbe  brakeman ;  and  the  offer  of  plaintiff  to  consent  to  its 
admission  for  the  purpose  of  showing  notice  to  the  orakeman  of  the  danger, 
does  not  cure  its  erroneous  ezcluaion. 

i.  That  the  substance  of  the  averment  in  the  petition  was  that  the  fall  was 
Cftnsed  bj  the  moving  of  the  engine,  and  the  variance  was  immaterial. 

Appeal  from  circnit  coart,  Bkckhawk  county. 

The  plaintiff,  as  aeBigiiee  of  H.  H.  Oakcs,  broneht  this  action  to 
recover  damages  for  a  pej'soiial  injury  suetuined  by  said  Oakes 
while  in  defendant's  employ  as  a  brakeiuan  on  one  of  its  traius. 
There  wsa  a  verdict  and  judgment  for  plaintiff.  Defendant  ap- 
pealed. 

W.  J.  Knight  and  J.  L.  Husted  for  appellant. 

O.  C.  Miller  and  S.  G.  Ileminway  for  appellee. 

Keed,  J. — Oakes  received  the  injnry  complained  of  while  at- 
tempting to  nnconple  a  car  from  the  tender  of  the  engine.  The 
.allegations  of  negligence  contained  in  the  petition  arc;  that  the  pin 
used  to  conple  the  car  to  the  engine  was  too  large,  and  vum. 

fitted  too  tightly  in  the  link  to  enable  Oakes  to  readily  pall  it  oat, 
and  was  therefore  defective,  and  nnenited  to  the  purpose  for  which 
it  was  nsed.  That  he  without  any  knowledge  as  to  the  condition 
and  size  of  tlie  pin,  and  without  any  fault  or  negligence  on  his 
part,  attempted  to  nnconple  the  car  from  the  engine,  and,  while 
so  engaged  between  the  engine  and  car,  the  engineer  negligently 
began  to  back  the  engine,  without  waiting  for  the  usual  and  ens- 


^d  by  Google 


208  SBDGWrcK  V.  ILLINOIS   OENTHaL   E.  CO. 

ternary  signal  to  be  given  by  Oabes  to  indicate  that  lie  was  ready 
therefor,  and  withont  giviiif;  any  signal  or  notice  to  him  of  his  in- 
tention to  move  thii  engine,  and  tliat  thereby  lie  was  pushed, 
carried,  and  crowded  along  tlie  track  to  a  cattie-giiard,  into  which 
he  fell,  and  was  rnn  over,  and  snffcred  the  injuries  complained 
of,  Tlie  proof  was  that  Oakea  went  between  the  engine  and  car 
while  they  were  stauding  sdll  to  make  tiie  uncoupling.  When 
he  attempted  to  remove  the  pin  he  discovered  that  it  was  so  large, 
and  fitted  so  tightly  into  the  link  that  it  could  not  readily  bo  i^e- 
nioved.  While  he  was  working  with  it,  and  attempting  to  remove 
it,  the  engineer,  witiiout  giving  any  signal  or  notice  of  hiR  inten- 
tion to  move  the  engine,  and  without  having  received  any  sigual 
from  Oakes  to  move  it,  began  to  back  it  and  the- car  toward  the 
switch  by  which  they  intended  to  run  the  car  onto  the  side  track. 
Oakes  walked  along  between  the  engine  and  car  as  they  moved, 
continuing  his  effoits  to  remove  the  pin.  Tlie  cattle-guard  is 
about  15  feet  from  the  point  where  he  went  between  the  car  and 
engine,  and  when  he  reached  it  he  fell  into  it,  and  was  run  over  by 
the  tender,  and  seriously  and  permanently  injured.  He  knew  of 
the  existence  of  the  catrle-guard,  and  had  passed  over  it  on  foot  a 
number  of  times  within  a  few  minutes  before  the  accident.  Bat  he 
testified  tliat  his  attention  was  so  absorbed  in  his  efforts  to  remove 
the  pin,  that  he  forgot  tlie  fact  that  he  was  approaching  it.  It  was 
a  common  practice  on  defendant's  road  to  uncouple  eel's  wjiiie  they 
were  in  motion.  But  the  movements  of  the  train,  wiien  uncoup- 
lingB  are  being  made,  are  under  tlie  direction  of  tiie  brakenien  who 
a i-e  charged  with  tiie  duty  of  making  them.  Tlie  engine  and  car 
wei-e  moving  at  the  time  at  about  tlie  speed  at  which  a  man  oi-di- 
narily  walks,  and  there  was  nothing  to  prevent  Oakes  from  stepping 
ont  from  between  them  at  any  time  before  he  reached  the  guard, 

1.  The  first  point  urged  is  that  the  proof  does  not  sustain  the- 
allegations  of  the  petition  in  this:  that,  while  the  averment  is  that 
Oakes  was'  pushed,  carried,  and  crowded  along  the  ti-ack  to  the 
TiRiurcK  n  cattle-guard  by  the  moving  engine  and  car,  the  proof 
™"™"-  is  that  he  voluntarily  i-emained   between   them,   and 

walked  to  the  guard.  It  is  true,  perha])E,  that  the  words  of  tb& 
petition,  taken  literally,  imply  the  application  of  force  hy  the  moT- 
nig  bodies  whicli  had  the  effect  to  carry  liim  to  the  cattle-guard. 
But  it  was  not  essential  that  the  allegation  should  be  established  in 
that  literal  sense.  Tlie  evidence  sufficiently  corresponds  with  the 
allegation  if  it  tends  to  establish  its  substance.  The  immediate 
cause  of  the  injury  was  the  falling  of  Oakes  into  the  guard;  and 
the  substance  of  the  averment  is  that  that  was  caused  by  the  mov- 
ing of  the  engine  and  car.  The  averment  that  he  was  pushed, 
carried,  and  crowded  along  the  track  relates  simply  to  the  manner 
in  which  his  fall  into  the  guard  occurred,  but  the  uhiniate  inquiry  i» 


^dbvGoO^^lc 


MASTER  AND   SKBVANI^-OOUPLING   0AB8.  208 

wlietlier  that  fall  was  caased  by  the  moving  of  the  engine  and  car. 
IF  the  evideuce  tended  to  prove  that  fact,  as  ve  think  it  did,  there 
waano  matei'ial  variance. 

3.  Defendant  pleaded  in  its  answer  that  the  act  of  Oakes,  in  at- 
tempting to  make  the  uncoupling  while  the  engine  and  car  were  in 
motion,  was  in  violation  of  one  of  the  rules  adopted  by 
it  for  the  government  of  its  emplovees  in  the  operation  EicLuaoN  ov 
of  its  trains.  On  the  trial  it  offereci  in  evidence  a  puper  SS*  ^S^^ 
which  purports  to  be  a  notice  to  its  employees,  advising  nw. 
tliem  of  many  circumstances  which  are  liable  to  occur 
in  the  operation  of  the  trains,  :ind  which  tend  to  render  the  employ- 
ment especially  hazardons  and  directing  them  as  to  the  manner  of 
performing  their  duties  in  the  operation  of  the  trains.  One  state- 
ment in  tlie  paper  is  as  follows :  "  It  is  daiigerons  to  uncouple,  or  to 
attempt  to  place  links  or  pins  in  draw-bai-g,  while  cars  are  in  motion, 
and  this  is  strictly  forbidden."  Attached  to  the  paper  was  the  follow- 
ing  contract,  which  was  signed  by  Oakes  when  he  entered  defend- 
ant's employment :  "  1,  the  undersigned,  being  employed  as  brake- 
man  by  the  Illinois  Central  R.  Co.,herehy  acknowledge  that  I  have 
been  made  acquainted  with  the  contents  of  the  foregoing  statement 
signed  by  Kdwai'd  T.  Jef[rey,8nperintendent  of  said  company,  and 
understand  the  same,  and,  in  consideration  of  my  employment  by 
said  company,  I  hereby  agree  to  assume  all  the  risks  of  the  service 
of  said  company,  as  set  forth  in  said  statement,  and  to  obey  the 
requirements  thereof,  and  all  rules  now  made,  or  that  may  be  made 
by  said  company  for  the  government  of  its  employees,  and  that  I 
will  save  said  company  harmless  from  all  liability  for  injnry  that 
may  come  to  me  because  of  any  such  risks,  or  because  I  liave  not 
obeyed  the  directions  of  said  statement,  or  any  of  the  rales  now  or 
hereafter  made  for  the  government  of  its  employees  as  aforesaid." 

The  circuit  court  excluded  the  paper  on  plaintiffs  objection  on 
the  ground  that  it  was  incompetent  and  immaterial,  and  was  in  con- 
flict with  the  provisions  of  the  statute  (Code,  §  1307),  and  in  con- 
travention of  public  policy.  It  may  be  that,  regarding  the  Instrn- 
iiient  simply  as  a  contract  between  the  parties,  some  of  the  pro- 
visiona  conld  not  be  upheld  ;  bnt  we  do  not  have  occasion  to  go 
into  that  question;  for,  aside  from  its  character  as  an  agreement, 
tliere  are  grounds  npon  which  we  think  it  very  clear  that  defendant 
was  entitled  to  have  it  admitted  in  evidence.  It  is  the  agreement 
npon  which  Oakes  entered  its  service,  and  it  contains  apecilic  direo- 
tions  as  to  the  manner  in  which  he  was  expected  to  perform  the 
duties  of  his  employment.  It  advised  him  tiiat  it  was  regarded 
its  a  dangerous  act  to  attempt  to  uncouple  when  the  cars  are  in 
motion,  and  that  he  was  expressly  forbidden  to  attempt  to  do  that. 
The  article  signed  by  him  is  an  admission  by  him  that  he  knew  of 
that  prohibition,  as  well  as  an  agreement  that  be  would  assume  all 
81A.&E.  R.Cas.-14 


^d  by  Google 


210  BZDQWICK   V.    ILLINOIS   CENTKAL   K.  00. 

the  ri^  of  the  forbidden  act,  aud  bold  the  company  harmless  for 
an^  injury  he  might  sngtain  while  doing  it.  The  company  clearlj 
has  the  right  to  make  bucIi  reasonable  rules  as  to  the  manner  in 
which  tlie  operation  of  its  trains  should  be  conducted  as  are  neces- 
sary, eitlier  for  its  own  protection,  or  the  safety  of  its  employees. 
If  the  injury  sustained  by  Oakes  was  in  consequence  of  iiis  vio- 
lation of  the  rule,  untess  there  existed  some  necessity  which  im- 
posed npon  him  a  higher  duty  than  chat  created  by  the  rule,  there 
IS  no  prmciple  of  law  that  would  permit  a  recovery  therefor.  The 
fact  that  he  contracted  to  hold  it  hannless  is  quite  immaterial. 
The  defendant  l»ad  the  right  to  introduce  the  paper  in  evidence, 
then,  because  it  showed,  not  only  the  existence  of  the  rule,  and 
that  it  constituted  one  of  the  conditions  of  the  employment  bat 
that  its  existence  was  known  to  Oakes. 

After  the  conrt  had  sustained  plaintiff's  objection  to  the  intro- 
duction of  the  paper,  his  counsel  offered  to  consent  that  it  might 
be  introduced  for  the  purpose  of  showing  notice  to  Oakes  of  the  dan- 
ger, and  it  is  contended  tliat,  as  defendant  by  availing  itself  of  that' 
privilege  conld  have  secured  its  admission,  it  cannot  now  be  heard 
to  complain  of  its  exclnsion.  There  aie  two  answers  to  this  posi- 
tion :  (1)  The  offer  was  made  after  the  court  had  excluded  the  evi- 
dence, and  there  was  no  subsequent  modification  of  the  ruling; 
(2)  defendant  was  entitled  to  introduce  tlie  paper  for  the  purpose 
of  showing  the  mle  forbidding  the  uncoupling  of  cars  while  in 
motion,  as  well  as  to  show  notice  of  the  danger  of  that  act.  So 
that  the  offer  did  not  extend  to  all  the  matters  which  it  was  en- 
titled to  establish  by  the  exclnded  evidence.  As  the  case  mnst  be 
reversed  on  this  ground,  we  do  not  consider  the  question  ae  to  tlie 
sufficiency  of  the  evidence  to  sustain  the  verdict.     Reversed. 

Coupling  or  Uncoupling  Cara  In  Motion  Contributory  Negl I ganc*.— Bur- 
lington, etc.,  R.  Co.  V.  Coatea,  16  Am.  &  Eng.  R.  R,  Cna.  -.ies;  Furgeson  e. 
Central  Iowa  R.  Co..  5  lb,  014. 

Violation  of  Rulet  for  Quidance  of  Employest  In  Coupling  Cars. —Bee  Reed 
V.  BurlJDgtOD,  etc.,  R.  Co.,  ante ;  Fay  v.  Minneapolis,  etc.,  U.  Co.,  11  Am. 
&  Eng.  R.  R  Gas.  198;  Penoa jLvaaia  R.  Co.  e.Wfaitcomb,  an(«,  and  aot«,  140. 


j.vCoogIc 


UASXUB  AND  S£BVAlfI— CODPLLNO  OAUS. 


Fkahxlif,  Admr. 

V. 

WiHOHA  AND  St.  Pbtbs  R.  Co. 
iAdoanee  Ga*e,  MnTuwla.    Sbemier  8,  1887.) 

It  fa  the  duty  of  a  r&ilirij  company  to  cover  culverts  on  the  line  of  its 
rood  in  its  jarda,  &ad  nithin  a  reasonable  distance  of  switches,  wherever  it 
woold  nmturally  be  anticipated  that  brakemeu  in  the  proper  discharge  of 
tlieir  duties  would  be  apt  to  go  in  making  CoupliogB. 

Whether  under  the  facta  of  this  case  it  was  the  duty  of  the  railway  com- 
pany, in  the  exercise  of  due  care,  to  cover  a  certain  culvert,  held  to  be  a 
'question  of  fact  for  the  jury. 

if  the  negligence  of  a  master  combines  with  negligence  of  a  fellow-servant, 
and  tbe  two  contribute  to  the  injury  of  another  servant,  the  master  b  liable. 

Appeal  from  district  court,  Dodge  connty  ;  Buckham,  Judge. 
Gardm  K  Cole  for  Winona  &  Bt.  F.  R.  Co.,  apueliaiic. 

Mitchell,  J. — The  negligence  charged  against  the  defendant 
waa  leaving  open  and  uncovered  the  spaces  between  the  ties  over 
a  culvert,  into  which  deceased,  a  bi-akeman  on  defend-  go,.™,™  ,^ 
ant's  road,  fell  while  making  a  coupling,  and  received  ■"^"'■ 
injuries  of  which  he  died.  The  en-ot-s  assigned  and  urged  upon 
the  argument  may  all  be  snmmed  up  in  one,  viz.,  that  tiie  evidence 
does  not  sustain  tlie  verdict ;  for  tlie  rensons  (1)  tliat  no  negligence 
on  part  of  defendant  was  proven  ;  (2)  tiiat  it  appears  tlint  the  neg- 
ligence of  the  deceased  contributed  to  the  injury  complained  of; 
but,  if  not  (3)  that  it  was  caused  by  the  negligence  of  liis  fellow- 
servants  wlio  were  engaged  with  him  in  operating  the  train. 

The  whole  case,  in  our  opinion,  turns  upon  tbe  first  of  these  three 
propositions,  whicli  is  the  only  one  aI>out  which  we  have  had  any 
doubt.     It  appeai-s  from  the  evidence  that  from  tlie  sta-  Fum. 

tioii  of  St.  Charles,  eastward  on  defendant's  road,  there  is  a  steep 
dp  grade  over  which  it  is  often  difficnlt  or  impossible  to  draw 
heavy  freight  trains  without  dividing  them,  or  what  is  called 
.■"doubling  up."  From  the  top  of  tliis  grade  there  la,  going  east, 
a  sharp  down  grade  of  about  6U  feet  to  tlie  mile  for  a  considerable 
distance.  To  get  freight  trains  going  east  from  St.  Charles  over 
this  up  grade  by  this  "doubling-up"  process,  a  spur  siding  was  put 
in,  the  easterly  end  of  wliich  connected  with  tlie  main  track  a  short 
distance  east  of  the  top  of  the  hill.    This  point  of  junction  was,  of 


^dbvGooglc 


213  FBANKLIN   V.   WINONA   AND   ST.  PETEE  R.  CO. 

coarse,  on  the  down  grade  of  tlie  main  track  ali-eady  lefeired  to. 
The  manner  in  wiiicli  tiiis  "doubling  up"  lind  been  nniformljr 
done  was  to  divide  tlie  train  at  St.  Cliiims  and  take  the  front  part 
up  over  tlie  bill  and  back  it  onto  the  spur  siding,  leave  it  there,  aod 
retnrn  with  tlie  engine  to  St.  Charles,  and  bring  np  the  rear  part 
of  the  train  over  the  bill  until  witliiii  a  short  distance  of  the  euBt 
end  of  the  spur,  and  leave  it  standing  there  in  charge  of  the  rear 
brakemnn,  while  the  engine  would  cnt  loose,  run  ahead  and  back 
in  on  the  spur,  and  bnug  out  the  front  part  of  the  train  upon  the 
main  track,  when  the  rear  part  would  be  let  down  to  it,  and  the 
conpling  made  bj  the  head  brakeman,  who  leaves  his  station  and 
descends  to  the  gronnd  for  that  purpose.  The  evidence  also  ehows- 
that  when  in  these  operations  tiie  front  part  of  the  train  is  pulled 
out  from  the  spur  onto  the  main  track,  it  "nsnaily"  runs  down, 
before  coming  to  a  stop,  so  that  the  hind  end  of  it  would  be  from 
two  to  six  car-lengths  (a  car-length  is  about  32  feet)  from  the  cast 
end  of  the  spur,  and  is  liable  sometitnesto  go  still  further,  depend- 
ing on  the  condition  of  the  rails  and  brakes,  as  tlie  brakes  ma^-  not 
hold  the  care  wel!,and  they  may  get  a  "big  start"  on  this  down 
grade.  There  is  no  direct  evidence  tending  to  show  whether  or 
not  it  is  necessary  or  good  management  to  let  the  front  part  of  the 
train  down  so  far  from  the  switch  before  bringing  it  to  a  stop. 
The  evidence  also  tends  to  show  that  when  the  rear  part  is  let  down 
upon  the  front  part,  it  usually  shoves  the  latter  forward  "one  or 
more  car-lengtlis."  It  also  appeare  that  it  is  not  infreqnent  for  the 
brakeman  to, fail  to  make  the  coupling  on  the  liret  attempt,  in 
which  case  it  is  necessary  for  the  engineer  to  "slack  abend,  and 
for  the  rear  brakeman  again  to  let  down  the  rear  part  of  the  train, 
when  the  head  brakeman  would  again  attempt  to  make  the  coup- 
ling. The  evidence  shows  that  this  mode  of  making  a  conpling  le 
linzardous,  and  that  it  would  be  much  safer  to  make  it  by  backing 
the  front  part  of  the  train  to  the  rear  part ;  but  that  with  heavy 
trains  it  was  often  difEcnlt  and  even  impossible  to  back  up  so  steep 
a  grade,  and  tliat  the  couplings  iiad  always  been  made  at  this  place- 
in  tlie  way  first  described,  and  that  the  company  had  never  issued 
any  rules  n\Kin  the  subject. 

About  305  feet  east  of  the  east  end  of  the  spur  track  was  th& 
uncovered  or  open  cnivert  .already  referred  to.  Two  of  the  freight 
conductoi-s  of  defendant  testified  that  there  is  no  occasion  or  ne- 
cessity for  getting  down  as  far  as  tiie  cnlvert  in  conpling  the  train 
after  doubling  the  hilh     This  is  not  contradicted  hy  any  direct  or 

fiositive  evidence,  but  the  witnesses  gave  no  reason  for  tlieir  opin- 
on,  except  the  fact  that  tliey  had  doubled  the  hill  a  gi'eat  many 
times,  and  never  got  down  as  fur  as  the  culvert,  except  on  one  oc- 
casion, when  both  brakemen  got  off  tiie  ti-ain  without  the  knowl- 
edge of  the  conductor,  and  it  "got  away  from  them." 


i,z.dbvGoOgle 


MASTER  AND   SERVANT — COUPLING   CARS.  213 

On  the  occaeioii  wlien  tbe  deceased  wob  killed,  lie  was  employed 
as  Iiend  brakemati  upon  a  freiglit  train  which  wus  being  doubled 
over  iliia  liill  in  tlie  manner  already  described.  The  rear  part  had 
been  left  standing  on  the  main  track  with  its  front  end  within  €0 
feet  of  the  west  end  of  tlie  epiii-,  and  then  the  front  part  brought 
oat  from  the  spnr  onto  the  main  ti'ack,  and  Btop})ed  wi^h  the  rear 
end  about  tn-o  car-leugths  below  the  switch,  when  tlie  rear  part  of 
the  train  was  let  down  slowly  to  it,  the  deceased  being  on  the  ground 
for  the  purpose  of  making  tlie  coupling.  Tlje  front  part  of  the 
train  was  held  merely  by  the  steam  in  the  engine,  and  there  is  no 
direct  evidence  as  to  wiiethei- this  wasor  wa8iiotpro))er  railroading. 
When  the  two  partsof  the  train  cauie  together  the  deceased  attc'in  pted 
to  make  the  coupling,  but  failed.  The  shock  brought  the  hind  end 
of  the  front  part  of  the ti-ain  within  about  two  or  fliree  car-lengtlm 
of  the  culvert.  The  deceased  (hen  signaled  the  engineer  to  slack 
ahead,  which  was  done  ;  and  when  the  rear  part  was  again  let  down, 
he  stepped  up  and  made  the  coupling,  ana  while  dohig  so  took  a 
step  or  two  forward,  and  fell  into  the  open  culvert,  was  ran  over 
by  the  cars,  and  received  the  injuries  of  which  he  died. 

The  qncstion  is  whether  reasonable  care  and  prudence  required 
the  defendant  ^o  cover  this  culvert.  In  determining 
theqnestion  we  must assnrneas trneevery  factfavornble  J^SdInt"  wS 
to  the  plaintiff  whicli  the  jury  might  fairly  have  found  tjoKrlx'a'rSi 
from  the  evidence ;  and  if  from  these  facts  different  SSbt""*  '™' 
minds  might  reasonably  draw  different  conclusions  as 
to  defendant's  negligence,  that  question  would  be  one  for  the  jury, 
and  tilts  conrt  would  not  say  that  their  verdict  was  not  sustained 
by  the  evidence. 

The  general  rule  governing  the  duty  of  the  defendant  in  the 

E remises  cannot  perhaps  be  lietter  stated  than  by  adopting  the 
irtgnage  of  one  of  the  witnesses,  viz.:  " To  cover  bridges  and 
culverts  on  the  line  of  their  road  within  the  yards  and  within  a 
reasonable  distance  of  switches,  wherever  braketnen  would  l)e  apt 
to  go  in  switching  and  coupling  cars."  This  is  custom  as  well  as 
duty,  for  the  reason  that  an  uncovered  culvert  would  be  a  sure 
death-trap  to  bi'akenieii  while  engaged  in  such  work.  By  reason 
of  some,  unforeseen  accident  or  extiaordinary  occurrence  a  coup- 
ling might  in  some  instances  have  to  be  made  any  place  on  the  lino 
of  the  road  far  distant  from  any  yard  or  switch.  But  the  company 
is  not  1>ound  to  anticipate  any  such  unusual  occurrence.  Neither 
is  it  bound  tc  take  steps  to  guard  its  employees  against  the  conse- 

?uence8of  their  own  negligence.   But  whenever  in  the  proper  per- 
urmance  of  their  duties  it  would  naturally  and  reasonably  be  an- 
ticipated that  they  would  be  apt  to  have  to  make  theso  couplings, 
it  ia  the  duty  of  tlie  company  to  cover  their  culverts  and  bridges. 
The  defendant  contends  that  this  mode  of  making  couplings  by 


^d  by  Google 


214  FBANKI-IN  «.   WINONA   AND  ST.  PETER   R.  CO. 

letting  the  rear  part  of  ati-ain  down  npon  tlie  front  part  is  danger- 
oae,  itnpropei',  and  negligent,  and  that  tliey  eliotild  have  been  made 
bj  backing  the  front  part  up  to  tlie  rear  i)ortion,  and  that  the  coin- 
puny  were  not  bound  to  anticipate  that  tlie  trainmen  would  adopt 
BO  dangerous  and  negligent  a  practice.  It  is  tru^  that  the  evidence 
does  show  that  this  mode  of  making  a  coupling  is  attended  with 
great  danger,  and  tliat  this  particniar  train  not  being  a  very  iieavy 
one,  could  have  beeti  coupled  in  the  method  suggested.  Butinas- 
niuch  as  in  case  of  many  trains  this  could  not  be  done,  the  defend- 
ant, by  placing  this  spur  at  this  pl:ice-for  the  purpose  stated,  must 
be  deemed  to  have  not  only  authorized,  but  impliedly  ordered, 
couplings  to  be  made  in  the  way  universally  practiced,  and  there- 
fore hound  to  adopt  proper  safeguards  for  its  employees  witli  ref- 
erence to  such  practice.  If  we  were  to  indulge  in  surmises  outsidfr 
the  evidence,  we  might  conjecture  that  it  might  be  bad  railroading 
on  the  part  of  train-men  to  permit  the  front  part  of  a  train,  when 
brought  out  from  the  spur,  to  run  six  or  more  car-lengtlis  fi-om  the- 
Bwitoli  before  bringing  it  to  a  stop,  or  to  leave  it  without  brakes, 
to  be  held  merely  by  the  steam  iti  the  engine,  so  that  the  concus- 
sion with  the  rear  portion  of  the  train  would  shove  it  several  car- 
lengths  further  forward.  But  the  evidence  is  that  this  usually  oc-' 
curred,  and  there  is  at  least  no  direct  or  positive  evidence  that  this- 
was  the  result  of  bad  management. 

Taking  into  consideration  these  facts,  and  keeping  also  in  mind 
tlie  total  distance  from  the  switch  to  the  culvert,  that  this  was  a 
steep  down  grade,  and  that  in  handling  freight  trains,  which  are, 
as  compared  with  passenger  trains,  lieavy  and  somewhat  unwieldj, 
being  controlled  by  hand  brakes,  trnin-nien  cannot  be  expected  to- 
ealciilate  d  istances  very  accurately  in  moving  them ;  and  the  farther 
fact  that  frequently  a  brakeman  would  fail  to  make  the  coupling 
on  tho^firet  attempt,  when  a  second  one  would  have  to  be  made  still 
further  down, — we  think  that  the  evidence  in  this  case  presented 
sucii  a  variety  of  somewhat  pcctiliar  circumstances  that  the  jury 
might  fairly  iind  that  it  should  have  been  reasonably  anticipated 
that  couplings  would  l>e  liable  to  be  made  as  far  down  as  tliis  cul- 
vert, ana  therefore  that  the  railway  company,  in  the  exercise  of 
ordinary  care  to  protect  its  brakemen  from  danger,  should  have 
covered  it.  This  view  of  the  evidence  is  strengthened  by  the  dem- 
onstrated f.ict  that  in  this  case  the  coupling  was  made  at  or  near 
the  culvert  without  the  intervention  of  any  unusual  or  extraordi- 
nary cause.  We  are  therefore  of  opinion  tiiat  the  question  of  de- 
fendant's negligence  was  a  question  for  tlie  jury,  and  that  wo  can- 
not say  that  tlieir  verdict  is  not  supported  by  the  evidence. 

The  defendant,  however,  contends  that  the  evidence  conclusively 
shows  that  deceased's  own  negligence  contributed  to  the  injuiy. 
Aside  from  the  mode  of  making  the '  coupling  (which  we  have  al- 


^d  by  Google 


MABTEK  AND   SERVANT — COUPLING   0AH8.  215 

ready  disposed  of),  tliis  contention  is  based  solely  apon  tlie  Ity- 
potliesis  that  deceased  either  knew,  or  in  the  exercise  of  ordinary 
care  ouE^lit  to  have  known,  of  the  existence  and  location  of  tlie  cnl- 
Tert.  There  is  ample  evidence  to  show  that  he  did  not  in  face 
know  of  it,  and  wlicthen  lie  unght  to  have  known  of  it  was,  under 
tlie  evidence,  a  qaestion  for  ihe  jnry.  He  had  been  on  tlie  road 
only  al>ont  a  month.  Unless  something  special  had  occnrred  lo 
i-ali  his  attention  to  it,  lie  would  not  necessarily  have  occasion  or 
■>|iporturiity  to  observe  tlie  cnlvert  while  merely  passing  over  the 
road  on  liis  train.  Tlie  evideiice  shows  that  sometimes  a  conductor 
wonld  not  have  occasion  for  a  month  at  a  lime  to  double  np  his 
train  over  this  grade.  There  is  no  evidence  tliat  tlie  train  on  which 
4leceased  was,  was  ever  doiifilcd  up  tliere,  except  what  is  implied 
in  the  somewhat  vagne  and  indefinite  tcstunotiy  of  the  conductor 
Aldrich.  And  even  if  it  had,  deceased's  attention  might  not  have 
iieen  called  to  the  cnlvert,  unless  he  had  occasion  to  go  down  to  it 
in  making  a  conpling.  The  fact  that  he  did  not  observe  it,  or  look 
ont  for  it,  on  the  occasion  on  which  he  was  killed,  when  his  atten- 
tion was  necessarily  intently  occupied  in  making  the  coupling,  waft 
certainly  no  conclusive  evidence  of  negligence. 

The  further  contention  is  made  t!ia:  even  if  deceased  was  not 
chargeable  with  negligence,  yet  it  conclusively  appears  that  the 
conductor  and  engineer  of  tlie  train  well  knew  of  the 
location  of  the  culvert,  and  therefore  their  attempt  to  Sc'ilaS^'"' 
have  the  conpling  made  at  that  place  was  gross  negli-  ^Snt"" 
gence,  and  this  being  the  negligence  of  the  fellow-serv- 
ants of  deceased,  defendant  is  not  liable.  A  snfiicicnt  answer  to 
this  is  that,  conceding  tiiat  the  negligence  of  the  other  train-men 
ill  this  respect  contributed  to  the  injury,  yet  if -the  defendant  was 
negligent  in  not  covering  this  culvert  (of  which  fact  the  verdict 
is  conclusive),  and  fhis  negligence  proximately  contributed  to  the 
injury,  the  defendant  is  lialile.  It  is  well  settled  that  if  the  negli- 
gence of  the  master  combines  with  the  negligence  of  a  fellow-serv- 
ant, and  the  two  contribute  to  the  injury  of  anotlicr  servant,  him- 
self free  from  negligence,  the  master  is  liable.  Cayzer  v.  Taylor, 
10  Gi-ay,  274 ;  Booth  v.  Railroad  Co.,  73  N.  Y.  38 ;  Paulmier  v. 
R-iilroad  Co.,  34  N.  J.  Law  151 ;  Crutchfield  v.  Railroad  Co.,  76 
N.  Car.  320. 

Order  affirmed. 

Injury  to  Brakaman  Coupling  Car*  Causad  by  open  Dttch,  Hole.  etc. — 
See  Houston,  etc.,  It.  Co.  t>.  Pinto,  15  Am.  &  Eng.  R.  R.  Cos.  366  ;  Oard- 
ner  e.  Hich.  Cent.  R.  Co.,  24  It>.  485;  and  note;  Little  Rock,  etc,  R.  Co.  «. 
Townsead,  31  lb.  619. 


^d  by  Google 


216      IUnU£  V.  DJiTKUlT,  UUAJKD  11A,V£N,  lilU.,  JL  00. , 


Dktboit,  Qkaits  Havbn  akd  MiLWAnsBB  R.  Co. 
(laa  o:  a  isq.) 

There  is  no  rale  of  law  to  restrict  rtiilroad  companies  as  to  the  curres  it 
ehftU  use  in  its  freight  stations  and  its  yards,  where  the  safetj  of  passengen 
and  of  the  public  ate  not  involved. 

The  engineerieg  question  as  to  the  curves  proper  to  be  made  in  the  track 
of  a  railroad  withio  the  freiglit  stations  or  the  jardB  of  the  rsilroid  comptoj 
is  not  a  question  to  be  left  to  a  jury  to  determine. 

Brakemen  and  other  persons  employed  by  a  railroad  company  witbia  the 
(Kight  stations  and  the  yards  of  the  company,  when  they  accept  the  era- 
ployment  assume  the  risks  arising  from  the  nature  of  the  curves  existiag  in 
the  track,  end  the  conBtrucLion  of  the  cars  used  by  the  company;  a.nd  thej 
are  bound  to  exercise  the  care  and  caution  which  the  perils  of  the  liusiaesa 
demand. 

When  a  servant  in  the  execution  of  his  master's  business,  receives  an 
injury  which  befalls  him  from  one  of  the  risks  iocideot  to  the  businen,  be 
cannot  hold  the  master  responsible,  but  must  bear  the  consequences  t^mself. 

Ebbob  to  the  circuit  court  of  tlie  United  States  for  tlie  enfitero 
district  of  Michigan. 

Tliis  was  an  action  for  negligence  resulting  in  the  death  of 
plaintiff's  husband  and  intestate,  Oreon  Tattle,  a  brakeman  in  the 
defendant's  employment.  The  declaration  contained  three  coiintB, 
the  firet  of  which  charged  that  on  or  about  tiie  30th  of  October, 
1882,  the  said  Tuttle  was  in  the  employ  of  the  defendant  in  the 
city  of  Detroit,  at  the  "  Detroit,  Grand  Hiiven  &  Milwaukee 
yards,"  and  in  tiie  course  of  his  ordinary  emploj'inent  was  ordered 
to  couple  Eome  cai-s  standihg  on  a  certain  track  known  as  "boot- 
jack siding"  that  said  siding  is  a  double-curve  track  containing  !i 
very  sharp  curve;  that  in  compliance  with  the  order  iie  proceeaed 
to  couple  certain  cars  on  said  siding,  which  were  near  a  certain 
boat-shp,  and  while  he  was  endeavoring  to  couple  said  cars  tlit 
"  drawlieads  "  of  the  cars  failed  to  meet  and  passed  each  other, 
allowing  the  said  cai-s  to  come  bo  close  together  that  he  was  cnisln'-i 
to  death ;  tliat  there  were  no  bninpei-s  nor  other  device  on  eitin" 
of  the  said  cars  to  prevent  tliera  from  going  togetlier,  in  case  s:ii" 
drawlieads  failed  to  meet  and  passed  eacli  otlier ;  and  that  the 
only  device  on  said  cai-s  for  tlie  purpose  of  keeping  them  apai't 
and  to  receive  the  concnssion  in  coupling  was  the  drawhends 
aforesaid.  The  charge  of  negligence  was,  that  the  defendant,  dis- 
regarding its  duty,  neglected,  in  the  construction  of  its  said  cmi'-. 


^d  by  Google 


MASTER   ANU   SEEVANT — COUPLING  OAKd.  217 

to  provide  any  meaijs  to  prevent  injuring  its  said  employee  in  case 
tlie  drawheads  of  ite  cars  bo  constructed  should  fail  to  meet  or 
pass  eacli  otEier  under  circnmstarices  set  forth;  and  that  the  said 
<lefendant,  in  the  construction  of  said  "  boot-jack  siding,"  so  called, 
negligently  and  nnskilfnliy  constnicted  the  same  witli  bo  sharp  a 
curve  that  the  drawlieads  of  the  said  cars  failed  to  meet  «nd 
passed  e:icli  otlier,  tliereby  causing  the  death  of  tlie  said  Orsou 
Tuttle  while  in  the  act  of  coupling  said  cars  as  aforesaid,  without 
fault  or  negligence  on  his  pai't. 

Tlie  third  count  was  substantially  the  same  as  t!ie  first;  the 
second  count,  whicli  charged  a  defective  construction  of  the  ear, 
in  not  supplying  it  with  bumpers,  or  otJicr  means  of  preventing 
the  drawhcads  from  passing  each  -other,  was  abandoned  at  the 
trial.  As  stated  in  the  brief  of  the  plaintiff's  connsel,  "the  first 
and  third  counts  allege  that  boot- jack  siding  was  negligently  and 
iniekilfitlly  constructed  by  the  defendant  with  so  sliarp  a  curve 
that  the  di-awheads  of  the  cars  in  nse  by  it  would  pass  each  other 
and  cause  the  cars  to  crush  any  one  who  attempted  to  make  a 
coupling  thereon;"  and  this  alleged  faulty  construction  of  the 
track  was  the  principal  matter  of  contest  on  the  trial ;  the  plaintiflE 
contending  that  the  defendant  was  bound,  in  duty  to  its  workmen 
and  employees,  to  construct  a  track  that  wonld  not  expose  them  to 
the  danger  which  existed  in  this  case;  wliilsl  the  defendant  con- 
tended and  offered  evidence  to  prove,  that  the  track  was  constructed 
according  to  the  reqnirements  of  the  situation,  a  sliarp  curve  being 
necessary  at  that  place  in  order  to  place  the  cai-s,  when  loading, 
alongside  of  the  dock  or  slip ;  that  aneli  curves  are  not  iincoinmoQ 
in  station  yaixJa ;  that  in  such  conditions  the  drawheads  of  cars 
quite  often  pass  each  other  when  the  cars  come  together ;  that  this 
must  be  presumed  to  have  been  well  known  to  Tuttle,  the  deceased, 
who  was  an  experienced  yard  cnan  ;  that  he  accepted  the  employ- 
ment with  ft  full  knowledge  of  its  risks,  and  must  be  held  to  have 
assnmed  them  ;  and  that  it  was  negligence  on  his  part  to  place  him- 
self in  such  a  situation  as  to  incur  the  danger  and  suffer  the  injury 
complained  of,"  It  appeared  by  the  evidence  that,  when  trying  to 
make  the  coupling,  the  deceased  stood  on  the  inside  of  the  curve 
where  the  cornere  of  the  cars  come  in  contact  when  the  drawhcads 
pass  each  otiier,  and  will  crush  a  person  caught  between  thein  ; 
whereas,  on  the  outside  of  tiie  curve  they  are  widely  separated,  and 
there  is  no  danger.  The  defendants  contended  that  the  position 
thus  taken  by  Tuttle  was  contribntory  negligence  on  his  part.  On 
the  other  hand,  the  plaintiff  offered  evidence  tending  to  show  that 
it  was  usual  for  t!ic  brakeman  in  coupling  cars  on  a  cnrve  to  stand 
on  the  inside  so  as  to  see  the  engineer  and  exchange  signals  with 
him  for  stopping  backing,  or  going  forward.  The  defendants  con- 
tended, and  offered  eviiJence  tending  to  sltow,  that  this  was  not 


^d  by  Google 


218      lUTTLE  V.  DETKOIT,  GRAND  HAVEN,  ETC.,  K.  CO. 

iieceBSaiy,  as  tbero  were  uIwajB  the  yardmaster  or  others  standing' 
by  and  co-opemtiilg,  by  whom,  the  GignaU  could  he  given. 

Tiii3  Btiitemeiit  of  the  pleadings  and  of  tiie  leadinij  issues  rxiswl 
on  tlie  triul  is  snfiieient  foi-  pi-upei'ly  Dnderstauding  the  qaeetion 
of  ]aw  presented  to  the  court.  Upon  the  evidence  adduced,  tli.- 
jndge  directed  the  jury  to  iind  a  verdict  for  the  defendant,  holding 
that  Tiittle  wantonly  aggiimed  the  risk  of  remaining  inside  tbe  draw- 
bar when  he  should  have  gone  on  the  other  side,  and  that  the  de- 
fendant: onght  not  to  he  held  in  this  action. 

0.  M.  Springer  for  plaintiff  in  error.  F.  A.  Baker  with  liim 
on  tiie  brief. 

E.   W.  Meddnitgh  for  defendant  in  eri-or. 

Bbadlbt,  J. — We  have  carefully  read  the  evidence  preeeuted 
by  the  bill  of  exceptions,  and,  altliougli  it  appears  that  the  carve 
was  a  very  sliarp  one  at  the  place  wliere  the  accident  liappened, 
yet  we  do  not  think  that  public  policy  requires  the  couris  to  iay 

down  any  rule  of  law  to  I'estrict  a  railixiad  company  as 
Liv  u  m  to  the  curves  it  shall  i^  in  its  freight  depotsand  yards, 
KuD      sBiJx  where  the  safety  of  passengere  and  the  public  is  not 

involved  ;  imicb  less  that  it  should  be  left  to  tiie  vary- 
ing and  uncertain  opinions  of  jnries  to  determine  sucli  an  engineer- 
ing question.  (For  analogous  cases  as  to  the  right,  of  a  mannfact- 
urer  to  choose  the  kind  of  machinery  he  will  use  in  his  businesG, 
see  Richards  v.  Rough,  53  Mich.  212;  Hayden  «.  Smitbvilie 
Man,  Co.,  29  Conn.  548,  558.)  The  intei-est  of  railroad  companies 
themselves  is  so  strongly  in  favor  of  easy  curves  as  a.  means  of 
facilitating  tJie  movement  of  their  oars,  that  it  may  well  be  left 
to  the  discretion  of  their  ofiicers  and  engineers  in  what  manner  br 
construct  them  for  the  proper  transaction  of  their  businees  in 
yards,  etc.  It  must  be  a  very  extraordinary  case,  indeed,  in 
which  tlieii^  discretion  in  this  matter  sliould  be  interfered  with 
in  determining  their  obligations  to  their  employees.  The  bmkc- 
men  and  others  employed  to  work  in  such  situations  must  decide 
for  thocnselves  whctiier  Uiey  will  encounter  the  hazards  incidental 
thereto;  and  if  they  decide  to  do  so,  they  must  be  content  to 
assume  the  risks.  For  the  views  of  this  court  in  a  cognate  matter, 
sec  Rgitidall  v.  Baltimore  &  Ohio  K.,  109  U.  S.  478,  4S2;  s.  c^ 
15  Am.  &  Eng.  R.  K.  Cas.  243,  where  it  was  said  :  "  A  railroad 
yard,  where  trains  are  made  up,  necessarily  lias  a  great  number  of 
trucks  and  switches  close  to  one  another,  and  any  one  who  enters 
the  service  of  a  railroad  corporation  connected  with  the  moving 
of  trains  assumes  tlie  risks  of  that  condition  of  things."     It  is  for 

those  who  enter  into  such  employments  to  exercise  all 
I^bS^hmw  that  care  and  caution  which  the  perils  of  the  basiuess 

in  each  case  demand.  The  perils  in  the  present  ciiPe, 
arising  from   the  sharpness  of  the  curve  were  seen  and  known. 


^d  by  Google 


MASTER  AND  SERVANT — COUPUHQ   CABS.  219' 

They  were  not  like  tiie  defects  of  niiBufe  niacliincry  which  tlie 
employer  lias  neglected  to  i-epair,  and  which  his  employees  liave 
reaeoii  to  suppose  is  in  proper  working  condition.  Everything 
was  open  and  visible,  and  the  deceased  hud  only  to  nae  his  senses 
and  his  faculties  to  avoid  the  daneei-s  to  which  he  wub  exposed. 
One  of  these  dangers  was  that  of  the  diiiwbai-s  slipping  ana  pass- 
ing each  other  when  the  cirs  were  brought  together.  It  was  his 
dnty  to  look  ont  for  this  and  avoid  it.  The  danger  existed  only 
on  the  inside  of  the  curve.  This  mnst  Inive  been  known  to  him. 
It  will  Iw  presnnied  that,  as  an  experienced  brakeman,  be  did 
know  it ;  for  it  is  one  of  those  things  which  happen,  in  the  course 
of  his  employment,  tinder  such  conditions  as  existed  here. 

Without  attempting,  therefore,  to  give  a  summary  of  the  evi- 
dence, we  have  no  hesitation  in  saying  that  the  jndge  was  right  in 
holding  that  the  deceased,  by  voluntarily  assuming  the  risk  of 
remaining  on  the  inside  of  the  drawbar,  brouglit  the 
injury  upon  himself,  and  the  judge  was  right,  there-  tub  hibb  ot me 
fore,  in  directing  a  verdict  for  the  defendant.  We  are  """"™^- 
led  to  this  conclusion,  not  only  on  the  ground  that  the  deceased, 
by  his  own  negligence,  contributed  to  tlie  accident,  Init  on  the 
broader  ground,  already  alluded  to,  that  a  person  who  enters  into 
the  service  of  another  in  a  particular  employment  assumes  the 
risks  incident  to  such  employment.  Judge  Cooley  unnounces  tlio 
rule  in  the  following  terms:  "The  rule  is  now  well  settled," 
says  he,  "  that,  in  general,  when  a  servant,  in  the  execution  of  his 
master's  business,  receives  an  injury  which  befalls  him  from  one 
of  the  risks  incident  to  the  bueiiiess,  be  cannot  hold  the  muster 
responsible,  but  innst  bear  the  conseqnenees  himself.  The  i-eason 
most  generally  assigned  for  this  rule  is,  that  the  servant,  when  he 
engages  in  the  employment,  does  so  in  view  of  all  the  incidentnl 
hazards,  and  that  he  and  his  employer,  when  making  their  negotia- 
tions, fixing  the  terms  and  agreeing  upon  tlie  compensation  th:it 
shall  be  paid  to  him,  must  have  contemplated  these  as  having  iin 
important  bearing  up  tlieir  stipulations.  As  the  servant  tlien 
knows  that  he  will  be  exposed  to  the  incidental  risk,  'he  mnst  he 
Bopposed  to  have  contracted  that,  as  between  himself  and  the 
master,  he  would  run  this  risk.'  "  The  antiior  proceeds  to  show 
tliat  tliis  is  also  a  rule  of  public  policy,  inasmuch  as  an  opposite 
doctrine  would  not  only  subject  employers  to  unreasonabio  and 
often  ruinous  responsibilities,  thereby  embarrassing  all  branches  of 
business,  but  it  would  be  an  encouragement  to  the  servant  to  omit 
tliat  diligence  and  Cimtton  which  he  is  in  duty  bound  to  exercise 
oa  behalf  of  his  master,  to  protect  him  agiiinst  the  misconduct 
and  negligence  of  others  in  the  same  service;  and  in  exercising 
such  diligence  and  caution  he  would  have  a  better  eeeurity  jigiiinst. 
injury  to  himself  than  any  I'ccourse  to  the  nci^Jtcr  for  (!iiiii;il"-* 
conid  afford. 


^d  by  Google 


320       TtTTTLE  V.  DETEOIT,  GBAND   HAVEW,  ETC.,  B.  CO. 

This  aocarate  Bummary  of  the  law  snpersedea  the  necesutj  of 
qaoting  cases,  which  are  referred  to  by  ttie  author  and  bj  ererj 
recent  writer  on  the  same  subject.  Its  application  to  this  csBe  ia 
^jnite  clear.  The  defendant,  ae  we  have  seen,  liad  a  right  to  con- 
stract  its  side  track  with  snch  curves  as  its  engineers  deemed  ex- 
pedient and  proper;  and  as  to  the  drawheads,  and  the  absence  of 
nmnpers,  the  plaintiff  herself  abandoned  all  claim  founded  upon 
iiny  supposed  migconstruction  of  the  cars  in  relation  tli^rcto. 
Tlien,  it  was  clearly  shown  to  be  a  not  uncommon  accidenl. 
especially  on  sharp  curves,  for  the  drawlieads  of  care  to  slip  bv 
and  pass  each  other.  Tuttle,  the  deceased,  entered  into  tbe  em- 
ployment of  tlie  defendant  as  a  brakeman  in  the  yard  in  qaeGiioD, 
with  a  fnll  knowledge  (actual  or  presnmed)  of  all  these  things— 
tlie  form  of  the  side  tracks,  the  construction  of  the  eijrs,  and  tbe 
hazards  incident  to  tiic  service.  Of  one  of  these  liazards  be  va£ 
unfortunately  the  victim.  The  only  conclusion  to  he  readied 
from  these  undoubted  facts  is,  that  he  assumed  the  risks  of  tbe 
business,  and  his  representative  has  no  recourse  for  damages  against 
tlic  company. 

This  view  of  the  subject  renders  it  unnecessary  to  examine  the 
various  particular  instructions  which  the  plaintiff's  counsel  re- 
<juested  the  court  to  give  to  the  jnry.  The  only  one  that  need  be 
noticed  is  the  followinij,  namely: 

"  If  the  jury  find  that  Tnttle  had  no  notice  or  knowledge  of  tlie 
fact  that  the  drawheads  would  pass  on  a  portion  of  this  siding,  aud 
that  tlie  fact  itself  would  not  l)e  noticed  or  discovered  by  a  carefal 
and  prudent  man  while  engaged  in  coupling  cars  on  said  sidiD^, 
then  it  cannot  be  said  that  he  was  guilty  of  contributory  negli- 
gence, nnlcss  it  had  already  come  to  his  knowledge  tliat  the  draw- 
heads  would  pass," 

On  this  point  the  judge  stated,  in  his  charge,  that  "  he  (tbe  de 
ceased)  knew,  as  he  was  an  experienced  man,  that  drawbars  do 
slip  sometimes,  even  upon  a  straight  track,  as  it  has  been  testified 
to,  and  the  sharper  tiie  cnrve  the  greater  was  the  danger  of  their 
slipping."  In  making  this  statement  the  judge  was  fully  iKirne 
out  by  the  testimony,  and  there  was  no  evidence  to  contradict  it. 

We  find  no  error  in  the  jndtrment,  and  it  is  therefoi-e  affirmed, 

Mr.  Justice  Milleb,  with  wlioin  was  Mr.  Justice  Hablah,  dis- 
senting. 

I  dissent  from  this  judgment,  and  especially  the  proportion  tint 
the  railroad  company  owed  no  duty  to  its  employees  in  regard  to 
the  sharpness  of  the  curves  of  the  track  in  the  yards  iu  which  tbe; 
are  employed. 

Mr.  Justice  Hablan  unites  in  this  dissent. 

Servant  Coupling  Cart  from  Iniide  Instead  of  Outslda  of  Cam  b 
Quilty  of  Contributory  Negligent.— See  Missouri  Pac.  R,  Co.  «.  Ljde,  U 

Am,  *Enj,'.  R.  R.  Cus.  18H. 


^dbyGooglc 


JCASTSB  AHD  ISEKVAMI — UNBLUCILED  GUABD-BAIL.     231 


M1B8ODH1  Paoifio  B.  Oo. 

(Advane^  Gate,  MiMimri.     Jmu  6, 1887.) 

Plaiatiff'B  huibftnd,  a  yard-master,  owin^  to  the  fact  that  a  guard-rail  is 
4efendaDt'a  yards  was  unblocked,  caueht  his  foot,  was  run  down  by  a  traio, 
and  killed.  In  an  action  by  bis  wife  for  the  death  of  her  husband  the  court 
iBstmcted  the  jury  that  the  ordinary  care  demaoded  of  the  railroad  cnmpan  j 
is  tiiat  deeree  of  care  which  ordinarily  prudent  men,  in  operating  railroads, 
ironld  and  do  generally  exerciee,  under  similar  circumstances,  toward  the 
protectioQ  of  their  employees,  and  the  jury  must  determine  whether,  at  th» 
time,  bavins  knowledge  of  the  absence  of  the  block  to  the  said  guard-rail, 
thedeCMsed  was  acting  as  a  prudent  mau  would  under  similar  circumstances, 
and  the  knowledge  of  the  deceased  of  the  unsafe  condition  of  the  guard-rail, 
if  it  was  unsafe,  would  not  defeat  a  recovery,  if  it  was  not  so  dangerous  aa 
to  threaten  immediate  injury,  or  if  he  might  have  reasonably  supposed  that 
he  could  safely  work  about  it  by  the  use  of  care  and  caution,  and  that  he  did 
uw  all  the  care  incident  to  the  situation  in  which  he  was  placed.  Beld,  that, 
the  instructioD  waa  properly  ^ven. 

Appeai,  from  ctrcnit  court,  Jackson  conntj. 
Oates  t&  Wallace  for  respondent. 
T.  J.  PoHU  for  appellant. 

B1.ACE,  J. — Tlie  plaintiff's  Imsband,  Charles  Hnlin,  was,  and  for 
three  or  four  inontha  had  been,  defendant's  yard-master  at  Inde- 
pendence, Missouri.  It  appeareafreiglittrain  was  about  ?iciB. 
dae  at  that  place,  and  it  became  the  duty  of  Ilnhn,  an  engineer, 
fireman,  and  switchnian  to  set  out  a  car  for  that  train.  Hnlm  di- 
rected the  switchman  to  go  forward  and  fliig  the  train.  TliC  en- 
fi^ine  then,  with  a  string  of  seven  care,  pulled  out  on  the  main  track, 
arid  stopped  for  Hulin  to  throw  the  switch,  which  he  did,  and  then 
signalea  the  fireman  to  back  the  train.  As  the  car  which  lie  in- 
tended to  take  out  passed  him,  he  stepped  in  between  it  and  the 
one  next  to  it  toward  the  engine,  intending  to  pnll  the  pin.  His 
foot  canght  between  the  gnard-rail  and  tcaek-rail,  and  lie  received 
the  injnries  from  which  he  died.  No  one  saw  him  at  tlie  moment 
of  the  accident,  bnt  bis  shoe  was  found  between  the  rails  with  the 
heel  toward  the  east,  the  direction  in  which  the  care  were  moving, 
ehuwiiig  tliat  ho  was  stepping  backward  when  his  foot  canght.  It 
was  aeceesary  to  leave  the  link  in  the  car  to  be  cat  out,  and  this 

-DigilizedbyGoOgle 


2S2  Huns  V.  MISSOURI  pacific  r.  cc. 

faced  liim  in  a  diroction  opposite  to  that  id  which  the  train  was 
mo  vi  II?  when  in  the  actof  pnllin^thcpin.  The  negligence  alleged 
JB  a  failure  to  block  the  gnnrd-rail. 

The  eviduiice  upon  this  question  offered  l>y  tlie  plaintiff  eIiows 
that  some  I'oads  at  their  yards  place  a  wooden  blocK  between  the 
guard  and  track  rai),  so  aB  to  nil  the  space  np  to  the  ball  of  tlie 
rails,  leaving  room  for  the  flange  of  the  car-wheels.  At  least  three 
i-oads  block  the  rails,  and  tliei-o  is  evidence  that  this  defendant  does 
the  same  at  its  ya.vAi  in  Kansas  City,  thoagh  none  of  the  rails  were 
blocked  at  its  yards  at  Independence.  One  of  the  wltneeses  who 
had  been  in  the  railroad  bnsinese  for  seven  years  says  it  is  custom- 
ary for  the  roads  in  this  State  to  block  these  rails,  bnt  from  the  evi- 
dence of  other  witnesses  it  appeai-a  that  many  do  not.  Some  of  the 
witnesses  say,  in  emphatic  terms,  that  it  is  dangerous  to  work  in 
yards  where  the  guara-rails  are  not  blocked,  and  all  who  profess  to 
know  anything  ahout  it  agree  that  blocking  adds  to  the  safety  of 
thoso  employees  engaged  in  switching.  One  witness  on  the  cioss- 
-examination  stated  that  spikes,  ntics,  and  stones  were  liable  to  get 
in  the  open  space,  and  then  there  wonld  be  more  danger  of  the  ears 
being  thrown  off  than  there  would  be  if  not  blocked ;  and  that, 
upon  the  whole,  it  was  a  disputed  question  among  i-ailroad  men 
which  was  best,  blocking  or  no  blocking.  Anotiier  witness  says 
he  had  never  found  one  man  but  said  blocking  was  proper  and  safer 
for  the  employees. 

Tlie  defendant  offered  no  witnesses,  and  the  court  of  its  own 
motion  gave  the  following  instruction  ;  "Before  the  plaintiff  can 
recover  in  this  action,  it  must  appear  that  the  accident  resulting  in 
the  deatii  of  Charles  Hiihn  was  occasioned  by  tiie  want  of  ordinary 
care  on  the  part  of  tlie  defendant  railroad  company  in  protecting 
its  employees,  in  that  it  failed  to  block  the  track  and  guard-rail  at 
the  point  complained  of,  and  that,  by  reason  thereof,  the  said  Hnhn 
was  Killed  in  the  manner  cliargcd  in  the  petition;  and,  fnrtJier,  it 
must  appear  that  the  injuiy  was  not  occasioned  by  tlie  carelessness 
and  negligciiee  of  8;iid  Hniin  whicii  directly  contributed  to  said  in- 
jury. The  ordinary  care  demanded  of  the  railway  coinpanyis  that 
degree  of  care  wiiicli  ordinarily  prudent  men,  in  operating  railroads, 
wonld  aiiddogeiierally  exercise  under  similar  circumetances  toward 
the  protection  of  tlieir  employees  ;  and  as  to  whether  or  not  Charles 
Hnhn  was  guilty  of  contributory  negligence  resulting  in  his  death, 
it  is  your  duty  to  consider  what  knowledge  he  had  of  the  absence 
of  a  block  to  the  said  guard-rail,  and,  if  he  had  knowledge  thereof, 
whether,  at  the  time,  he  was  acting  as  a  prudent  man  would  under 
similar  cireumstances."  Other  instructions  were  giren  and  refused, 
but  they  need  not  be  set  out  in  full, 

1.  The  first  question  presented  by  the  instruction  given  and  re- 
fused is  whether  the  plaintiff  mast  fail  in  her  suit  because  her  has- 


^d  by  Google 


MASTEK  AND   8EBVAHT—DN BLOCKED   GUAUD-RAIL.      223 

banil  bad  fnll  knowledge  of  the  conditioD  of  the  gaard-rails 
ill  the  yards,  and  with  tliat  knowledge,  continned  in 
the  eervice  of  the  defendant,  and  was  injured.  Coun-  un  e«w  of 
£el  for  respondent  intimate  that  there  is  no  proof  that  'or  Duu^ff 
deceased  knew  that  these  guai-d-rails  were  not  blocked,  ™™"^' 
bnt  such  an  intimation  cannot  receive  a  moment's  consideration  ; 
for  he  had  been  in  the  employ  of  the  defendant  at  these  yards  for 
three  or  foar  months,  was  a  sober,  observant,  and  intelligent  man  ; 
and  that  he  knew  of  the  exact  condition  of  the  guard-rails  cannot 
be  doubted. 

It  is  often  said  that  the  servant  waives  his  riglit  to  recover  for 
injuries  received  from  defective  machinery  and  uppliancee,  whci-o, 
with  knowledge  of  the  defect,  he  continues  to  use  sucli  defective 
machinery  or  appliances;  but  ^he  rule,  as  thus  broadly  stated,  is 
not  correct  in  its  application  to  :<  large  class  of  cases.  Thus  in  the 
case  of  Snow  v.  Bailroad  Co.,  8  Allen,  441,  three  lengtiie  of  plank 
had  been  laid  down  between  the  ails  across  a  highway.  One  of 
these  planks  had  become  defective  and  there  was  a  hole  in  it  lai^o 
enoagli  to  admit  a  man's  foot.  The  hole  had  exisited  for  two 
montlis,  and  the  brakeman  knew  of  it,  and  had  niiidp  complaint  to 
the  track  i-epaircr,  but  there  does  not  seem  to  Ihim'  Ijeen  any  prom- 
ise to  repair.  His  foot  was  caught  in  the  hole  wliile  he  was  en- 
gaged in  uncoupling  cars,  and  he  could  not  get  it  out  before  the 
wheels  of  the  tender  ran  over  his  leg.  Upon  the  point  in  ques- 
tion here  the  court  made  these  observations :  "  Nor  do  we  think 
it  was  any  the  less  a  question  of  fact  to  be  decided  by  tlie  jury, 
hectmsc  the  plaintiff  had  previous  knowledge  of  the  defect  in  the 
road  which  caused  the  accident.  ...  It  may  be  suggested  that  the 
plaintiff  ouglit  not  to  recover  because  lie  continned  in  the  per- 
formance of  liis  duties  after  he  was  aware  of  the  existence  of  the 
defect  in  the  road.  There  may  be  cases  wliere  a  servant  would  be 
wanting  in  due  care  by  incurring  the  risk  of  injnry  in  the  use  of 
defective  or  imperfect  machinery  or  apparatus  after  he  knew  it 
might  cause  him  bodily  harm,  but  we  do  not  tJiink  tliis  case  is  one 
of  that  class.  His  continuance  in  the  employment  did  not  neces- 
sarily and  inevitably  expose  him  to  danger."  In  Patterson  v.  Rail- 
road Co.,  76  Pa.  St.  389,  an  employee  was  injured  by  improper 
constrnction  of  a  freg.  The  conductor  in  that  case  knew  it  was 
liazardouB  to  run  cars  over  it,  and  had  notified  the  foreman  of  tlie 
road  of  the  danger,  and  the  latter  had  promised  to  repair  tlie  same. 
The  promise  to  repair,  under  the  decisions  of  this  court,  justified 
the  conductor  in  continuing  in  the  service.  But  tiie  case  was  not 
made  to  stand  on  that  ground,  and  the  court,  after  referring  ap- 
proriDgly  to  tlie  case  before  cited,  says:  "In  this  discussion,  liow- 
-erer,  we  are  not  to  foreet  that  the  servant  ie  required  to  exercise 
■ordinary  prudencG.     Lt  the  instrumentality  with  which  he  is  re. 


^d  by  Google 


224  HUHN  V.  HISSOUBI  PACIFIC  R.  00. 

qnii-ed  to  perform  liis  service  ia  so  obviously  and  itniDediatel;- 
uaiigeroiis  tliiit  a  man  nf  coiiiinon  priidetioe  would  I'efiiec  to  uBe  it, 
tlie  iiiiieter  cannot  be  lield  liable  for  the  i-estiltii>g  damage.  In  snch 
case  tlio  law  adjudges  the  servant  guilty  of  concurrtiiit  negligence, 
and  will  refuse  liim  timt  aid  to  whicli  lie  otherwise  would  be  en- 
titled. But  wJiere  the  servant,  in  obedience  to  t!ie  requirement  of 
tlie  master,  incm-s  tlie  risk  of  machinery,  which,  tJiough  danger-  - 
ons,  is  not  so  much  so  as  to  threaten  immediate  injury,  or  where 
ic  ia  reasonably  probable  it  may  be  safely  used  by  extraordinary 
caution  or  akiil,  tJie  rule  is  different." 

It  has  been  several  times  held  by  this  court  that,  where  the  in- 
Btrumentulity  with  which  tlie  servant  is  I'equii'ed  to  perform  serv- 
ice ia  so  glurinjrly  defcclive  that  a  man  of  common  prudence 
would  not  use  it,  the  master  could  not  be  held  responsible  for 
damages  resulting  from  it,  Bnt  if  the  servant  incurs  the  risk  of 
machinery  wlncii.  though  dangerous,  is  not  so  mnch  so  as  to  threaten 
•immediate  injury,  or  where  it  is  reasonable  to  suppose  that  it  may 
be  safely  used  with  great  care  or  skill,  a  different  rule  applies.  lu 
such  cases  mere  knowledge  of  the  defect  will  not  defeat  a  recovery. 
Negligence  on  the  part  of  the  servant  in  such  cases  does  not  neces- 
sarily arise  from  liis  knowledge  of  the  defect,  but  it  is  a  question  of 
fact  to  be  determined  from  such  knowledge  and  the  other  circnm- 
Btances  in  evidence.  Stoddard  v.  RiulruadCo.,  65  Mo.  514;  Devlin 
V.  Railroad  Co.,  87  Mo.  545 ;  s.  c,  28  Am.  &  Eng.  E.  R.  Gas.  524. 
See,  also,  Railroad  v.  Ogden,  3  Colo.  500;  Lasure  v.  Graniteville 
ManuPg  Co.,  18  S.  Car.  276  ;  Perigo  i;.  Railroad  Co.,  55  Iowa,  326; 
Hawley  v.  Raih-oad  Co.,  82  N.  T.370  ;  s.  c,  2  Am.  &  Eug.  R.  R. 
Cas.  248. 

The  instruction  given  at  the  instance  of  the  plaintiS  asserted  the 
proposition  that  Huhn's  knowledge  of  the  unsafe  condition  of  the- 
guard-rail,  if  it  was  unsafe,  would  not  defeat  a  recovery,  if  it  wa* 
not  so  dangerous  as  to  tlireuten  immediate  injury,  or  if  he  might 
have  reasonuitl y  supposed  that  he  could  safely  work  about  it  by  the  ■ 
use  of  care  and  caution,  and  that  he  did  use  all  the'  care  incident 
to  tlie  situation  in  which  he  was  placed.  This  instruction,  and  the- 
une  before  quoted,  submitted  the  question  properly  to  the  jury, 
and  there  was  no  error  in  i-efusing  to  give  an  instruction  whiclt 
placed  a  complete  defense  on  knowledge  of  Jhe  condition  of  the 
guard-rail,  and  his  continuance  in  the  service  of  the  company  after 
such  knowledge,  and  after  knowledge  of  danger  attending  the 
use  of  it. 

2.  But  it  is  contended  by  the  appellant  that  tlie  demurrer  to  the 

evidence  should  have  been  sustained  because  the  evi- 

OF DEFEiiDAin'a  deucc  shows  no  negligence  on  the  part  of  the  defend- 

KuuaufCB.      ^^^     There  is  no  obligation  on  the  part  of  the  master  to 

furnish  absolately  safe  appliances ;  nor  is  a  raih'oad  bound  to  adopt- 


ed by  GoOglc 


MASTER  AND  8EBVAHT — UHnBLOCEED  GUARD-RAIL.      225 

every  new  invention,  though  an  actual  ImproTement  it  ma;  be. 
The  company  is  not  reqnired  to  discard  its  machinery  and  imple- 
ments becanse  better  has  come  into  use  ;  but  it  ia  the  duty  of  tlie 
company  to  nse  reasonable  care  and  precantion  in  procuring  and 
keeping  its  appliances  in  good  condition  and  order,  and  it  cannot 
remain  wholly  silent  as  to  the  improvements  of  the  day. 

Id  Smith  v.  Railroad  Co.,  69  Mo.  32,  the  complaint  relied  upon 
was  that  the  gnard-rail  was  constructed  of  the  T  rail  when  a  differ- 
ent one  would  have  been  as  serviceable  and  less  dangerons,  and 
the  proof  was  that  the  Y  rail  would  have  been  as  serviceable,  and, 
00  account  of  its  form,  less  dangerous  to  the  employees.  The  V 
tail  was  shown  to  be  used  as  a  guard-rail  on  one  bridge,  but  the  T 
was  in  general  use.  Some  of  the  witnesses,  though  engaged  in 
railroading  for  years,  had  never  seen  the  V  rail  in  use.  it  was 
held  that,  though  the  Y  rail  would  have  been  safer,  that  fact  would 
not  establish  negligence  on  the  part  of  the  defendant,  and  it  was 
alfio'said  there  was  no  evidence  of  any  negligence  on  the  part  of  the 
defendant.  That  case  ought  not  to  control  the  disposition  of  this 
one;  for  here  negligence  is  clearly  allwed  in  the  petition,  and  the 
proof  as  to  the  use  of  blocked  guard-rails  in  this  case  is  essentially 
different  from  the  evidence  of  the  use  of  the  Y  rail  in  that  case. 

The  case  of  Chicago,  R.  I.  &  P.  R.  Co.  v.  Londergan  (III),  28 
Am.  &  Eng.  K.  B.  Gas.  491,  is  cited  and  much  relied  upon  by  the 
appellant.  Some  observations  made  in  the  opinion,  when  detached 
from  the  question  decided,  might  lead  to  the  conclusioa  that  the 
demurrer  in  this  case  should  Have  been  sustained,  but  we  think  a 
fair  consideration  of  the  whole  opinion  will  lead  to  no  such  condn- 
sion.  The  plaintiff  wag  a  brakeman  on  the  defendant's  road,  and 
it  became  his  duty  to  aesiat  in  switching  cars  at  certain  way-stations. 
The  charge  was  that  the  defendant  negligently  failed  to  block  tho 
joints  of  a  turn-out  from  the  main  line  to  a  branch  railroad.  The 
evidence  showed  that  some  roads  blocked  the  frogs  and  tom-onts, 
and  that  others  did  not;  that  if  the?  were  blocked  it  would  be 
bard  to  get  the  foot  below  the  ball  oi  the  rail.  One  witness  stated 
that  the  blocking  was  to  keep  men  from  catching  their  feet  be- 
tween the  rails;  that  the  necessity  for  something  for  a  foot-gnard 
was  known  and  recognized, — not  half  of  the  roaids  used  the  blocks. 
The  case  seems  to  have  turned  on  the  propriety  of  two  instrnctiona 
as  to  one  of  which  it  is  said :  "  The  jury  must  have  understood 
from  the  instruction  that  the  railroad  company  was  absolutely  re- 
quired to  use  blocks  in  its  switches  and  turn-outs ;"  and  as  to  the 
other  it  is  said  it  was  not  the  province  of  the  court  to  tell  the  jury 
that  the  omission  to  block  the  joints  of  the  turn-out  was  a  wrong- 
ful act.  The  judgment  was  reversed,  and  the  cause  remanded,  and 
it  cannot  be  affirmed  of  that  case  that  the  court  held  there  was  no 
evidence  of  negligence  on  the  part  of  the  defendant. 

It  is  true  that  the  qnestioii  of  negligence  cannot  be  resolved 
«  A.  4  E.  B.  Cm.— 16 

DiglizsdbyGoOglC 


836  UUHN  V.  .MISSOURI   PACIFIC    R.    CO. 

alone  npoii  the  fact  as  to  how  many  roads  do  or  do  not  block  the 
guard  rdile  ;  nor  eaii  it  be  said  the  ooinpany  was  guilty  of  negligence 
eiiiipiy  because  the  blocks  made  it  safer  for  Uie  einplojeea.  Tbeeeare 
facte,  liower-er,  tu  receivu  <i  proper  coiieideratiou  from  the  jury.  It 
may  be  that  tlie  use  of  blocKB  would  be  impnideut  on  the  main 
line,  and  qnite  esaencial  in  the  car-yarde,  where  the  employees  are 
oonstantly  engaged  in  coupling  and  uncoupling  cars;  for,  as  the 
dadger  increases,  the  care  sliouTd  increase.  The  gaai-d-rail  in  this 
case  waB  on  the  side  track  leading  to  the  main  track.  The  defend- 
ant was  not  called  npoii  to  discard  the  existing  rails.  The  defend- 
ant seems  to  have  recognized  the  propriety  of  nsing  the  blocks  in 
Bome  of  its  oar  yards.  There  is  certainly  evidence  that  it  does  nee 
,  them  in  one.  They  are  nsed  by  some  other  roads ;  and  there  can 
be  no  doabt  but  the  evidence  here,  in  no  way  contradicted,  shows 
that,  they  add  much  to  the  safety  of  the  employees.  Where  the 
facts  are  either  disputed,  or  diffei'ent  inferences  may  be  fairly 
drawn  from  the  nnaisputed  facta,  the  question  of  negligence  sliould 
be  submitted  to  the  jniT.  Manerman  v.  Siemerts,  71  Mo.  101 ; 
I^agel  V.  Missouri  Pac.  R.  Co.,  75  Mo.  654 ;  s.  c,  10  Am.  &  Eng. 
K.  Jl.  Cas.,  702.  We  think  this  ease  comes  within  the  rule,  and 
the  question  was  property  submitted  to  tlio  jury. 

3.  The  objection  made  here  to  some  of  the  evidence  received  in 
the  oanse  does  not  appear  to  have  been  made  on  tJie  trial  of  the 
oaose,  and  no  anch  question  is  therefore  before  us  for  consideration. 

The  judgment  is  affirmed. 

(All  concur.) 

Injury  CauMd  by  Unblocked  Raili— Duty  of  th«  Company. — See,  general I7, 
RuBh  V.  HisBouri  Pac.  R.  Co.,  and  note,  aS  km.  Sc  Eng.  R  R.  Oaa.  484-4B1 ; 
Chicago,  etc.,  It.  Co'.  v.  Londergan,  28  lb.  491;  Lake  Shore,  etc.,  R.  Co.  e. 
UcCornuok,  S  lb.  474;  Hajrea  v.  Chioago,  «tc.,  R.  Co.,  8  lb.  6S7;  Ford  •. 
OantnU  Iow«  a  Co.,  17  lb.  S99. 


iiz^dbvCoOglc 


MASTER  AND.  SEBVAUT— P£F1£0TIVE  BLOpK. 


BoRUNQToy,  Obdab  Bafids  and  Nobthbbk  R.  Co. 

{Adaaitee  Cate,  Iowa.     October  16,  1887.) 

Owiiis  to  a  block  ia  the  space  betweea  the  maiD  and  the  inurd-ndl  on  the 
track  of  defeodant's  road  ixiag  worn,  and  a  portion  split  on,  caused  bj  the 
operation  of  the  road,  plaintiff 's  intestate,  a  brakeman,  caught  hii  foot  in 
said  space  and  was  run  over  and  killed.  In  action  for  bie  death,  the  court 
aabmitied  to  the  jury  the  question  whether  or  not  the  block  was  so  placed 
as  to  be  dangerous  to  brakcmen  coupling  or  uncoupling  cars  in  the  exercisa 
of  ordinary  care.  Stld,  that,  as  there  was  no  evidence  tending  to  thow  that 
the  block  in  such  space  was  improperly  placed,  or  so  placed  as  to  be  dange^- 
oua  to  employees,  the  submission  was  erroneous. 

Appeal  from  district  coui-t,  Wasliiiigton  connty. 

Th(j  plaintiff  is  the  adminietratorof  Cameron  PI  a  in  mer,  who  was 
brakeman  in  tlie  emploj'  of  the  defendant,  and  who,  as  the  plaintiff 
claims,  was  killed  by  reason  of  negligence  of  the  defendant.  Trial 
by  jury,  verdict  for  plaintiff,  and  jiidj^ment,  Tlie  defendant 
appeals. 

S.  K.  Tracy  and  Boat  ik  Jackson  for  appellant. 

No  appearance  for  iippelice. 

Sektebs,  J. — The  negligence  stated  in  the  petition  is — Tiret, 
that  the  defendant  negligently  failed  to" block  the  space  between  the 
main  and  guainl  rails  of  its  trauk,  and  allowed  ''said  space  opon 
its  road  in  and  about  What  Cheer,  Iowa,  to  remain  open  witliont 
blocks;"  and,  second,  that  it  permitted  the  blocks  in  said  space 
"  to  become  worthless, worn  out,  and  to  become  in  such  a  condition 
AS  to  allow  the  feet  of  its  employees  to  be  liable  to  be  cangbt  in  sucli 
.space  while  attending  to  then*  dnties  npon  its  (defendant's)  yard  '* 
in  coupling  and  anconpling  cars.  The  eonrt  instrncted  the  jury 
as  follows:  "If  yon  find  that  a  block  had  been  placed  by  defend- 
ant between  said  i-sils ;  and  fnrther  find  it  established  by  a  prepon- 
derance o_f  the  evidence  that  snch  block  was  so  placed,  or  bo  worn, 
or  out  of  repair,  as  Co  be  dangerous  to  brakemen  coupling  or  uii- 
conpling  cars,  in  the  exercise  of  ordinary  care ;  and  yon  further  so 
find  that  defendant  either  knew  of  the  condition  of  snch  block,  or 
that  soch  condition,  if  established,  had  existed  for  snch  a  length  of 
time,  and  was  of  snch  character,  as  that  defendant  ought,  in  the 
exercise  of  ordinary  care,  to  have  known  it,  and  to,have  repaired 
OT  remedi'-rl  the  defect,  if  any, — then  and  in  snch  case,  the  negli- 


^d  by  Google 


aS8  OBIFFITH  V.   BUELINGTOS,   ETC.   E.  CO. 

gence  of  the  defendant  charged  in  the  petitioa  an  amendment 
Uiereto  would  be  Bnfficientl;  eetablished,  within  the  meaning  of  the- 
law.  But  if  70a  fail  to  bo  find  that  the  block  was  in  snch  dan- 
gerons  condition,  or  that  defendant  had  BQcb  knowledge,  or  that 
Buch  time  had  elapsed,  then  tlie  negligence  of  defendant  wonld  not 
be  establiahed,  and  yonr  verdict  should  be  for  defendant." 

1.  It  will  be  observed  that  the  court  submitted  to  the  jut^  the 
question  whether  the  block  was  "  bo  placed  *'  as  to  be  dangerous  to 
the  employees,  and,  if  the  jury  so  found,then  the  negligence  charged 
in  tlie  petitiou  should  be  regarded  as  eBtablished.  We  have 
examined  the  evidence  with  care,  and  fail  to  find  any  which  tends 
to  show  that  the  block  was  improperly  placed  or  which  tends  to- 
sbow  that  it  was  so  placed  as  to  be  dangeroos  to  employees.  The- 
evidence  does  tend  to  show  that  the  block  was  worn,  and  a. 
portion  of  it  split  off,  but  this  must  have  occurred,  as  the  evidence 
clearly  shows,  by  the  operation  of  the  road.  As  there  was  no  evi- 
dence tending  to  show  tliat  the  block  was  improperly  placed,  or  so 
placed  as  to  be  dangerous  to  the  emp]oyee8,the  coart  erred  in  enbrnit^ 
ting  such  question  to  the  jury.  King  v.  Nelson,  36  Iowa,  509;  Lefif. 
ingwell  V.  Gilchrist,  40  Iowa  416 ;  Mofiet  v.  Armstrong,  Id.  484  ; 
Grimes  v.  College,  42  Iowa  589  ;  Templin  v.  Rothweiler,  56  Iowa. 
359. 

2.  "We  think  the  verdict  is  against  the  foregoing  instruction,  for 
the  reason  that  there  is  no  evidence  tending  to  show  the  defendant 
had  notice  or  knowledge  that  the  block  was  "  so  worn  or  out  of 
repair  as  sobe  dangerous  to  brakemen  coupJitjgoruncoDplingcars." 
There  is  not  a  single  witness  testifies  that  he  observed  the  condi- 
tion of  the  block  until  after  the  accident.  Thei-e  is  therefore  no 
evidence  tending  to  show  bow  long  it  existed,  or  that  the  defend- 
ant, or  any  of  its  officers  or  employees,  had  knowledge  that  the 
block  was  in  any  respect  defective.  If  the  qnestion  as  to  negligent^ 
ly  placing  the  block  had  not  been  submittaj  to  thejnry  in  the  in- 


struction under  consideration,  and,  the  jury  had  followed  tlie 
instrnction  as  to  notice  and  knowledge  of  tlie  defect,  thejr  verdict 
should  have  been  for  the  defendant.  It  therefore  follows  that  there 
was  no'evidence  authorizing  a  recovery,  and  the  court  should  hav& 
BO  directed  the  jury,  as  the  defendant  asked  it  to  do.    Beveraed. 

SaeHnhn  c.  IQawuri  Pao.  R.  Co.,  and  note,  ante. 


^d  by  Google 


MASVEB  AMD,  8  KEV A  HT— DEFECTIVE  TBAOK. 


St.  Lotiib,  Iboh  Mouhtais  and  Sodtheeit  R.  Oo. 
(Advana  Cat,  MUnyuH.     May  IB,  1887.) 

The  plaintiS'B  father,  a  flremaa  in  defendant'B  employ,  waa  killed  by  the 
engine  de  was  od  being  thronu  from  the  track.  The  accident  was  caused  by 
sn  embankment  giving  way,  caused  by  a  recent  rain.  It  appeared  that  the 
firemaa  and  cngiaeer  were  warned  af^ainBt  danger  from  water  in  the  neigh- 
borhood of  the  place  where  the  accident  occurred.  A  long  train,  however, 
had  safely  ptisaed  over  the  track  shortly  before  their  train.     Beld: 

1.  That  the  giving  way  of  the  track  was  prima  faeie  evidence  of  ne^igence 
ia  ita  construction,  and  that,  the  evidence  as  to  whether  the  rain  was  an 
extraordinary  one  being  conflicting,  the  cose  was  properly  sent  to  the  jury. 

S.  That  the  fact  that  deceased  was  warned  agaieat  danger,  was  only  evi- 
dence of  contributory  negligence  for  the  consideration  of  the  jury. 

8.  That  evidence  of  the  condition  of  the  track  at  the  place  of  the  accident 
more  than  three  years  after  it  happened,  ia  inadmissible. 

4.  That  the  jury  are'  not  cojtlned  in  settling  their  verdict,  to  nominal 
damages,  although  plaintiff's  evidence  does  not  show  what  the  earnings  of 
the  father  were  at  the  time  of  his  death.  The  loaa  of  a  parent's  oare  in  tha 
education,  maintenance,  and  pecuniary  support  of  the  child  have,  in  addition 
to  their  moral  value,  an  appreciable  pecuniary  value,  which  the  jury  may 
consider. 

5.  That  as  there  was  neither  allegation  nor  proof  of  malicious,  wanton,  nor 
gross  negligence,  or  of  any  aggravating  circumstances,  the  jury  were  not  at 
liberty  to  award  vindictive  or  exemplary  damages;  and  an  instruction  inviting 
them  to  consider  any  aggravating  circumstunces  in  the  evidence  wu 
erroneous. 

Appeal  from  tlie  jadgnient  of  the  St.  Louis  court  of  appeals 
againBt  defendant  in  an  action  for  negligently  cansing  the  death  of 
plaintiff's  father.     Kevei'sed. 

Sennett  Pike  for  appellant, 

A..  B.  Taylor  and  P.  I^ahy  for  respondent. 

Kat,  J. — Bertha  Stoher,  an  infant,  brings  this  suit  by  her  next 
friend,  in  the  circuit  court  of  the  city  of  St.  Louis,  to  recover 
damages  for  the  death  of  her  father,  Nicholas  Stoher,  ttcm. 

who  was  killed  by  the  derailment  of  a  passenger  trahi.on  the  rail- 
road of  defendant,  near  Bismarck,  Mo,,  whilst  be  was  acting  as 
fireman  upon  the  engine  then  drawing  said  pagsenger  tvain.  Upon 
a  trial  of  the  canae,  plaintifi  had  judgment  for  damages  in  tlie  som 
of  (5000,  from  which  the  defendant  appealed  to  the  St.  Louis 


^d  by  Google 


350  'STOIIEB  V.   ST.  LOPI8,   KTO.,   R.   00. 

Conrt  of  Appeals,  where  the  jadgment  waa  affirmed,  pro  formOy 
aud  from  wliidi  tlie  case  was  appealed  to  this  coiir.c. 

None  of  the  witneaeee  testifying  in  tlie  canee  aeem  to  have  been 
preBent  when  the  care  were  oTerturned  and  the  father  of  the  infant 
pl&intifi  killed.  Tlie  railroad  track  at  this  place  waa  "  an  embank- 
ment abont  a  foot  high,  composed  mostly  of  rock  and  gravel,  and 
bnilt  on  the  solid  rock."  At  a  distance  from  tlie  place  of  the  acci- 
dent, varionely  estimated  by  the  witnesses,  at  from  600  or  700  to 
1000  feet,  there  was  a  onl^rcrt  passing  through  the  railroad  bed,, 
designed  and  intended  to  catry  off  the  water  that  fell  and  accumn- 
]ated  dnring  rains  in  the  basin  situated  on  the  eastern  side  of  the 
railroad.  This  cnlvert  was  a  double-box  cnlveit,  each  opening  4 
feet  by  4,  and  together  with  the  railroad  had  been  constructed  and 
in  use  for  a  number  of  years.  During  the  night  of  May  9,  1880, 
there  had  been  a  rain  storm,  and  the  water  had  accnmnlated  in  this 
basin,  and  so  washed  the  railroad  tiack  and  weakened  the  embank- 
ment that  the  same  gave  way  under  the  engine  passing  along  ther& 
at  abont  3.30  o'clock  at  night,  wliich  said  engine  was  thrown  front 
the  track,  and  the  said  Nicholas  Stoher,  fireman  as  aforesaid,  was 
then  and  there  killed. 

The  petition,  so  far  as  material,  sets  forth  the  gronnde  of  re- 
covery, in  sTibst&nce,  "  that  said  deceased  was  not  gnilty  of  anv" 
negligence  that  directly  contributed  co  cause  said  injuries  and  hw 
death,  bnt  that  the  same  wns  wliolly  caused  by  the  negligence  of 
defendant  and  its  agents  in  failiiig  to  keep  its  track  in  repair,  ani}^ 
^  in  a  suitable  condition  for  the  passage  of  its  engines  and  trains  of, 
cars  along  and  over  its  said  track;  tliat,  at  the  place  where  said' 
engine  was  ihi-own  from  the  track,  said  track  was  out  of  repair^' 
atid  was  in  a  defective  and  dangerous  condition,  and  unsafe  for  th» 
passage  of  engines  and  cars  over  the  same;  that  said  track  at  said' 
point  was  bo  defectively  and  negligently  constructed  that  it 
obstructed  the  natural  flow  and  drain  of  water,  and  did  not  allow 
said  water  an  outlet ;  that  by  reason  of  said  obstruction  and  wank 
of  outlet,  from  rain  or  other  causes,  the  water  would  dam  np  and' 
cover  said  track,  thus  rendering  the  same'  defective  and  unsuitable 
for  tite  passage  of  engines  and  cai-s  on  said  track ;  that  at  the  time 
suid  engine  was  thrown  from  said  track  the  water,  by  reason  of  the 
said  defective  strnctnre,  and  condition  of  said  track,  had  accnmn- 
lated against  and  upon  said  track,  and  washed  the  soil  from  said 
track,  so  that  when  said  engine  went  upon  that  portion  of  said 
track  it  gave  way,  and  said  engine  was  thrown  from  the  track,  and ' 
killed  said  Nicliolas  Stoher,  as  afoi-esaid,  without  fault  upon  hie- 
part  ;  and  the  plaintiff,  who  ia  a  minor  of  about  the  age  of  eleven 
months,  was  the  only  child  of  said  Nicholas  Stoher  at  the  time  of 
his  death ;  that  no  action  for  damages  was  ever  begun  by  the  widow 
of  said  Nicholas  Stoher ;  that,  by  cTiestatnte  in  such  cases  provided. 


^d  by  Google 


MA8TEB  AHD  8BRVAMT— DEFECTIVE  TRACK.  231 

Sjcanee  of  action  has  accmed  to  the  plaintiff;  that,  by  reason  of  the 
dcAth  of  her  father,  the  plaintiff  was  and  is  damaged  in  the  sum  of 
$tK)0O,  for  which  she  demande  judgment." 

The  answer  of  the  defendant  denied  the  allegation  of  the  peti- 
tioQ,  except  as  therein  afterward  admitted,  and  then  set  np:  that 
on  and  long  prior  to  said  May  9,  said  Stoher  had  been  a  fireman  in 
it6.  employ,  accnstomed  for  several  years  to  rnn  on  and  over  said 
portion  of  its  railroad ;  "  tliat  said  track,  prior  to  and  np  to  the 
date  of  the  accident  was  well  and  skilfully  bnilt  and  constnicted, 
and  was  in  a  state  of  good  repair,  as  was  Well  known  to  said  Stoher; 
that  a  few  minutes  prior  to  the  accident  a  sudden,  violent,  extra- 
ordinary, and  unprecedented  rain  storm  prevailed  at  and  near  the 
place  of  the  accident,  in  and  during  whictt  an  amonnt  of  rain  fell 
to  an  extent  previously  unknown  in  that  part  of  the  conutry,  by 
reason  of  which,  and  of  wood  and  stones  thrown  against  it,  the  said 
track,  at  the  place  or  point  where  said  Stoher  was  killed,  was  moved 
and  save  way,  and  not  on  account  of  any  defect  or  want  of  strength 
to  withstand  all  ordinary  or  usual  rain  storms  or  freshets  occurring 
at  said  place ;  that  said  track  was  amply  sulEcicnt  to  withstand  the 
flow  or  fall  of  water  caused  by  oi-dinary  and  usual  rain  storms  that 
eonld  be  reasouitbly  expected  to  occur  at  said  point,  and  had  with- 
Btood  all  rain  falls  occurring  therewith  for  more  than  twenty  years 

Siot  to  the  happening  of  said  accident ;  that  said  Stoher  and  one 
harles  McPhei'son,  who  was  engineer  of  the  locomotive  npon 
wihioh  said  Stoher  was  fireman,  knew  of  the  storm  that  prevailed, 
and  was  prevailing  at  the  time  of  the  accident  by  which  said  Stoher 
was  killed,  and  that  it  was  the  dntyof  the  said  Stoher  and  the  said 
HcPlierson  to  take  all  needful  precautions  against  the  effects  of 
the  same;  that  there  was  no  time  after  the  falling  of  the  rain 
(foresaid,  and  before  the  happening  of  the  accident,  for  defendant's 
section  men  or  track  repairers  to  go  over  and  ascertain  the  condi- 
tion of  tlie  said  track,  as  Stoher  and  McPherson  well  knew,  and 
that  whatever  negligence  there  was  in  running  the  engine  and  cars 
at  said  time  and  place  was  their  negligence;  and  that  the  injury 
tod  death  of  said  Stohe^  was  the  direct  result  of  his  own  negligence 
and  that  of  bis  coemployeo." 

The  evidence  seems  to  be  somewhat  conflicting  as  to  the  extent 
and  character  of  the  rain  storm  during  that  night,  and  whether  the 
same  was  exti-aordinary,  or  merely  severe  and  uuusnal,  but  such  as 
had  previously  occurred  in  that  region. 

So,  we  think,  was  the  evidence  as  to  the  amount  of  the  drainage 
basin  and  territory  for  whicli  the  culvert  in  question  was  provided 
as  the  outlet,  and  also  the  evidence  in  respect  to  the 
condition  of  said  cnlvert,  and  its  sufficiency  at  that  omno  ^±t  o* 
time  to  carry  off  the  waters  naturally  collecting  at  that  ai  utai^aaca. 
point  during  very  severe  and  heavy  rains.  Whether 
proper  care  lias  been  used  in  the  construction  of  the  railroad  is  in 

Digitized  by  Google 


2^2  STOHEB  V.    ST.    LOUIS,    ETC..    K.   CO. 

general  a  qaestion  of  fact ;  and  tlie  sudden  giving  way  of  a  part  of 
the  Btrncture  is,  if  unexplained,  some  evidence  ofnegligence  in  its 
construction.     Slieann.  &  Eedf.     Ncg.  §  448. 

A  railroad  company  is  bound  to  use  rciisonable  care  in  construct- 
ing and  maintaining  its  track  and  roadbed  in  sncli  condition  as  to 
make  the  same  reasonably  secure  for  the  uee  of  passengers  and  em- 
ployees, and  is  bound  to  use  like  care  in  providing  sufficient  culverts 
for  the  escape  of  water  collected  and  accumulated  by  its  embank- 
raentB  and  excavations.     Shearm,  &  Kedf.    Neg.  3d  ed.  §  444. 

As  to  the  alleged  negligenca  of  said  engineer  and  fireman,  set 
np  in  the  answer,  it  is  perhaps  sufficient  to  say  that  no 
ooimuBUTOBT  <>"e,  whether  passenger  or  employee  on  that  train,  testi- 
™i^S^A»  fied  as  a  witness  in  the  cause ;  and  that  there  is  no 
""""^  proof  in  the  record  as  to  what  their  conduct  or  that  of 

either  of  them  was  as  to  the  running  and  management 
of  the  sAid  train  at  the  time.  The  witness  Ilowland,  it  is  true, 
testified  that,  on  the  night  of  the  storm  and  accident,  he  licard  at 
Bismarck  a  conversation  going  on  between  the  railroad  men  stand- 
ing around  the  register  in  the  office,  McPherson  among  the  i-cst; 
that  McPhersoTi  said,  "Boys,  you  want  to  look  out  for  water  be- 
tween  hei-e  and  Iron,  and  especially  down  there  by  Dent's,  for  it 
is  very  high."  Dent's  is  about  a  mile  and  a  half  south  of  Bismarck, 
CD  the  main  line.  Thatashewas  passingoutof  the  office  he  heard 
some  one  of  the  railroad  men  say  to  McPherson,  according  to  his 
best  i-ecollection,  "  Charlie,  you  want  to  look  out  for  high  water 
down  there  on  that  straight  piece  of  track,"  referring,  as  hie  recol- 
lection is,  to  the  water  between  Bismarck  and  Irondale. 

Martin  O'Moro,  the  freight-train  conductor,  testified  that  he  saw 
McPherson  at  Bismarck,  and  they  were  talking  about  the  storm; 
that  McPherson  told  him  to  look  out  for  water  on  the  track,  be- 
tween Bismarck  and  Iron  MouYitain  (d  miles  south) ;  that  McPher- 
son said  the  storm  was  very  severe,  and  that  the  water  was  over 
the  track,  going  down  the  hill,  and  that  the  water  might  wash  out 
the  track.  But  this  witness  also  testified  that  he  got  into  Bismai'ck, 
he  thinks,  about  3  o'clock;  that  his  train  was  the  last  one  that 
passed  over  the  track  at  the  point  of  the  accident,  before  McPher- 
son's  train,  No.  3,  attempted  to  pass  over  it;  that  his  train,  lis 
thinks,  had  fourteen  loaded  cars ;  that  the  track  at  the  place  of  the 
accident,  when  he  went  over  it,  seemed  to  be  all  right,  in  good 
condition ;  at  the  most,  this  evidence  could  only  justify  an  inquiry 
by  the  jury  as  to  the  negligence,  if  any,  on  the  part  of  said  engineer 
and  firemen  in  proceeding  on  tiieir  journey  with  their  said  train. 
If  these  views  and  estimates  of  the  evidence  in  the  foregoing  par- 
ticulara  be  correct,  the  action  of  the  trial  court  in  refusing  to  give 
the  instruction  in  the  nature  of  a  demuiier  to  the  evidence  was 
right  aud  proper. 


^dbyGooglc 


MASTEK  AND   SERVANT — DEFKCTIVE  TRACK.  333 

Among  other  errors  assigned  by  defendant,  is  tlie  action  of  tlie 
court  in  I'eceiving  evidence  as  to  the  condition  of  the 
culvert  in  qiieetion,  and  the  track  at  that  place,  long  ErnminuTo 
flahsequent  to  the  time  of  thie  occurreTice  when  eaia  t"cii  "uamJ 
Stoher  was  killed.  Thei-e  Are  several  instances  of  this  SmT  "  *°°'" 
aort  occurring  in  tlie  evidence  given  by  the  witnesses 
Denton  and  Poston,  and  objected  to  and  exceptions  taken  by  de- 
fendant at  the  time.  This  trial  was  begun  on  the  26th  day  of 
October,  1883,  and  the  witness  Denton,  upon  being  asked  if  any 
ovei-flow  of  water  had  taken  place  at  said  place  since  the  accident, 
answered  "Yes,  last  spring," — that  is  in  the  spring  of  1883.  He 
was  tlien  permitted  to  describe  tliis  ovei'dow,  and  the  condition  of 
the  tpack  tiiereafter.  He  fnrther  testified  that,  after  this  subse- 
qncnt  overflow  in  1883,  ho  examined  the  condition  of  the  culverts, 
and  that  he  fonnd  that  logs  lay  in  the  month  of  said  culverts. 

Dr.  Poston,  after  testifying  that  he  frequently  noticed  the  enl- 
vert,  in  passing,  further  testitied  that  he  pussed  there  a  few  days 
before  the  ti'ial  and  noticed  obstmctioim  of  logs,  brnsh,  and  leaves 
in  the  mouth  of  the  culvert.  Again,  he  was  asked  if  he  bad  exam- 
ined tlie  culvert  recently  with  reference  to  its  bed,  and,  in  course 
of  his  answer  to  that  and  succeeding  questions,  testified  that  the 
calvert  seemed  to  be  considerably  stopped  up  with  brush  and  leaves 
and  about  half  full  of  dead  water ;  that  the  top  of  the  culvert  docs 
not  extend  more  than  six  or  eight  inches  above  the  level  of  the 
accamulated  mud  near  the  mouth,  and  that  considerable  mod  and 
brush  accumulated  there.  In  answer  t:i  the  question  bow  long  it 
had  been  tiiat  way,  he  said  he  couldn't  say,  and  didn't  remember; 
that  lie  saw  it  only  three  or  four  days  before  the  time  he  was  giving 
Lis  testimony,  in  October,  1883 ;  and  that  it  was  in  very  much  the 
same  condition. 

The  witness  Wood  also  testified  that  lie  had  seen  the  indications 
and  traces  that  the  water  had  been  above  the  month  of  the  culvert, 
bat  not  before  the  accident.  Neither  of  tliese  witnesses  testify,  .is 
we  understand  the  recoi'd,  as  to  the  condition  of  the  culvert  and  ttack, 
til  these  respects,  at  and  about  the  time  of  the  accident.  Their 
fitatementfi  as  to  conditions  so  long  afterward  should  not  have  been 
received.  Too  much  time  had  elapsed  since  the  accident  had  hap- 
pened. In  many  cases  it  is  said  that  the  evidence  should  bo  cori- 
tiiied  to  the  time,  place,  and  circumstances  of  the  injury,  and  the 
negligence  existing  then  and  there.  Parker  v.  Portland  Pub.  Co., 
69  Me.  174;  Gnina  Rapids  &  I.  R.  Co.  v.  Hnntly,  38  Mich.  537. 

We  are  not  inclined  to  adhere  to  tins  rule  in  all  its  stvictnese. 
In  this  class  of  cases  it  is  often  wholly  impracticable  to  produce  the 
evidence  of  tho  conditions  of  tilings  at  the  precise  time  of  the  oc- 
currence. It  wilt,  we  think,  ordinarily  be  sufiicieiit  to  show  the 
state  of  facts  tending  to  show  negligence  in  the  construction 
and  maintenance  of  the  railroad,  at  the  time,  or  recently  before  or 


^d  by  Google 


3S4  BTOHER  V.    ST,    LOUIS,    ETC.,    B.    OO. 

after,  and  within  sncli  reasonable  time  as  will,  from  the  natore  wd 
circuniBtaiices  of  the  case,  induce  or  justify  a  reasonable  preenmp- 
tioQ  or  inference  that  the  coDdition  la  the  aame  and  unchanged. 
This  rale  is,  we  think,  violated  in  the  admlBBion  of  the  above  and 
other  evidence  of  like  import,  which  showed  the  condition  of 
the  ciilveit  at  a  period  too  remote  to  permit  the  fair  and  jnat  infer- 
ence that  it  was  in  the  same  condition,  as  to  each  obetractioni, 
at  the  time  of  the  accident,  a  jear  and  even  two  and  three  yean 
previoiiB.  1  Greenl.  £t.  491,  and  note;  2  Starkie,  £t.  381;  Sheann. 
&  Redf.  Neg.  §  448. 

Other  errors  are  assigned  as  to  the  action  of  the  conrt  upon  in- 
stnictione,  and  several  of  these  are,  wethink,erroneoDB.  Thetbird 
one  i^ven  for  plaintiff  is  as  follows: 

"  3.  The  court  instrncts  the  jury  that,  althon^  they  may  beliera 
from  the  evidence  that  the  negligence  of  the  engineer, 
totorognowM.  McPherson,  may  have  contfibnted  to  cause  the  accident 
om™  cwMT  by  which  Nicholas  Stoher  lost  his  life,  yet,  if  they  further 
S^raS™*"  believe  from  the  evidence  that  the  negligence  of  the 
defendant,  in  failing  to  provide  suitable  roadbed  and 
cnlvert,  also  directly  contribnted  to  cause  said  accident  and  the- 
death  of  Nicholas  Stolier,  then  the  negligence  of  said  McPhenoo 
IB  no  defense  to  this  action." 

This  instruction,  even  if  otherwise  correct,  is  subject  to  criti- 
cism,  we  think,  tli;it  it.  does  not  clearly  leave  to  the  jury  the  qnes- 
tion  whether  or  not  defendant  had  tailed  to  provide  a  suitable 
roadbed  or  cnlvert,  but  seems  to  assume  that  it  had  not,  and  to 
submit  to  the  jury  whether  its  negligence  in  that  respect,  whieh  i* 
asenmed  also,  directly  contributea  to  cauBesaid  accident,  etc. 

The  fifth  instruction  given  by  the  conrt,  of  its  own  motion,  ii« 
follows: 

"5.  If  the  juiT  in  this  case  find  for  plaintiff,  then  in  asaeSBiDg 
«nrnav  or  the  damageB,  you  may  award  any  sum,  not  ezceedini; 
""""■  $6000,  that   yon  deem  fair  and  just,  having  referenee 

to  the  necessai-y  injnry  resulting  to  the  plaintiff.  Bertha  Stoher,by 
reason  of  the  death  of  her  father,  Nicholas  Stoher,  and  also  having 
reference  to  any  mitigating  or  aggravating  circumstances  you  may 
find  in  the  case." 

Ab  to  this  ittgtrnctioii,  wo  cannot  agree  to  the  claim  made  in  de- 
fendant's behalf  that  the  vei-dict  should  be  limited  to  nominal 
damiiges,  even  if  the  evidence  fails  to  show  what  the  earnings  of 
deceased  were  at  the  tiineof  his  death.  The  lose  of  a  parent's  care, 
in  the  education,  maintenance,  and  pecuniary  support  of  childreTi, 
has,  in  addition  to  its  moial  value,  an  appreciable  pecuniary  vaiire 
Tilley  v.  Hudson  R  R.  Co.,  29  N.  T.  252  ;  37  N.  Y.  287.  In. 
SQch  cases  juries  are  not  confined  to  any  exact  mathematical  calcnlo- 
tiiiM,  but  are  vested  with  considerable  discretion,  which  thfe  couns 
will    not  interfere  with  unless  it  has  been   abused.     Sheartn.  it 


^d  by  Google 


MASTER  AND  SERVANT — RISK  OFBMPLOYMKNT.        28!>- 

Bcdf.  3(i  ed.  §  613.  But  whilst  the  mle  thne  annonnced  may  b& 
proper  in  certain  cases,  it  is,  ve  think,  in  some  respects,  inappli- 
cable to  a  case  of  this  sort. 

There  is,  in  this  case,  neither  alleKatioD  nor  proof  of  an;  malice, 
wickedness, irantonnesB,  or  gross  negngerice  as  to  the  tort  complained 
of;  and  there  is  a  total  absence  of  evidence  as  to  any  "  aggravating 
circumstances  "  in  the  case.  TJie  case  is  not  one  autliorizing  vindic- 
tire  or  exemplary  damages;  and  whei'e,  as  in  this  case,  there  was- 
no  evidenceof  wilfnl  misconddct,  or  entire  Vantof  care,  indicating 
indifferences  to  consequences,  the  Jury,  in  determining  the  compen- 
sation in  damages,  cannot  properly  consider  aggiavating  circnin- 
Btances  whieli  do  not  exist,  G-raham  v.  Pacific  R.  Co.,  66  Mo.  536f 
Perkins  v.  Missouri,  K.  &  T.  R.  Co.,  55  Mo.  201.  Does  v.  Mis- 
souri,  K.  &  T. R.  Co.,  59  Mo.  27;  Dmfee  v.  Morgan,  69  Mo.  469. 

For  the  above  reasons  the  judgment  of  the  circnit  court,  as  well 
as  that  of  the  conrt  of  appeiiis,  will  be  revei'sed,  aAd  canse  remand- 
ed; and  it  is  accordingly  so  oi'dered. 

All  concur — Noeton,  Ch.  J. — in  the  resnlt. 

Evidanoe  u  to  Condltfon  of  Track  before  and  aftar  Aceldant. — Bee  Little* 
Boek,  etc.,  R.  C'l.  V.  EilliHnks.  nnte. 

Obligation  of  Company  to  Servants  at  to  Roadbed  and  Traak, — See  Cen- 
tral R.  Gi.  «,  MircliKll,  1  Am.  &  Bng.  K,  It.  Ciis.  145;  Pliila.,  etc.,  R.  Co.  v: 
Schertle,  3  lb.  Ifi8;  Qatea  o.  Southern  Minn.  R.  Co.,  3  lb.  237;  Lockwood  e. 
Clficago  &  K  W.  R.  Co.,  6  lb.  ISl ;  Batterson  e.  Chicago,  etc.,  R.  Co.,  6  lb: 
128;  Hoaatoo,  etc.,  U.  Co.  e.  Fowler,  8  lb.  504;  Durklav.  Bhup,  8  lb.  G90V 
SfaBerv.- Locke,  19  lb.  800. 


KoevoLE  AND  "Western  R.  Co. 


(Adoanda  Oaae,  Virginia.    Jaw  80,  1687.) 

ThoVSrginiastatiit«(Actg,  lBBB-84,  p.  701),  concerning  the  wrrice  of  pnV 
cen  on  corporatiooB  arter  designMing  the  proper  officer  to  be  eerred,  if  thtt- 
case  is  agHiDst  a  cit;,  town,  or  bank  of  circulation,  proTides:  "and  if  the  case 
be  against  some  other  corporation,  whether  incorporated  b;  the  laws  of  thi» 
Btate,  or  any  other  State  or  country,  transacting  business  in  this  State,  on 
any  agent  thereof,  or  on  any  person  declared  by  the  laws  of  this  Slate  to  b* 
sh  agent  of  such  corporatioo."  &ld,  that  the  vice- president  and  general 
superintendent  of  a  railroad  company  are  agents  of  the  corporation  with iik 
the  meaning  and  legislative  intent  of  the  statute. 

The  plaintiff,  a  brakeman  in  defendant's  employ,  was  injured  while  engaged 
in  coupling  cars,  having  his  hand  caught  between  the  dead  blocks.  He  had 
rignalled  to  have  the  cars,  which  were  coming  towards  him,  stopped,  but  the 
signal  was  not  obeyed;  and  although  lie  thought  the  cars  were  still  moving 


^d  by  Google 


936  NOEFOLK  AHD   WESTEBN   K.    CO.   V.    OOTTKELL. 

too  fast,  be  stepped  ia  betireen  them,  snd  received  the  in  jury  complained  of. 
The  court  instructed  tbe  jury  that  if  thej  should  believe  from  the  e*idenc« 
that  the  plaintiff  made  the  signal  to  stop  in  a  proper  time  for  the  train  to  be 
stopped,  or  reduced  to  a  safe  speed  at  the  moment  of  coupling,  and  if  thej 
should  further  believe  that,  on  account  of  the  vant  of  care  ou  the  part  of 
tbe  person  hsving  the  management  and  control  of  the  train,  the  defendant's 
cars  were  run  together  in  such  a  violent  and  rapid  manner  as  to  confuse  and 
frighten  the  plaintilf,  etc.,  htld: 

1.  That  the  instruction  nas  not  errooeous  in  that  it  proceeds  upon  the 
Assumption  thst  the  defendant  in  error  did  not  perceive  that  his  Hignsis  had 
Dot  bean  obeyed,  ^ust  before  going  in  between  the  cars,  and  that  it  concludes 
with  the  asaumptiou  thst  tbe  cars  were  run  back  in  such  a  rapid  and  violent 
manner  as  to  confuse  and  frighten  the  plaintiff. 

3.  That  the  plaintiff  in  accepting  the  employment,  assumed  the  risks  In- 
cident to  it,  and  that  his  injury  resulted  from  such  risks,  or  bis  own  negli- 
gence, BJid  that  the  company  was  not  responsible. 

Afpb:a.l  from  hustings  court,  Kounoke  city. 

Griffin  {&  Watta  for  plaintiff  in  error, 

John  E.  Penn  and  O.  W.  Eansbrou^h  for  defendant  in  error. 

IiAOT,  J. — TiiiB  is  a  writ  of  error  to  a  judgment  of  tbe  hustings 
court  of  Roanoke  city,  at  tlie  June  term,  1886. 

The  case  ia  as  follows :  Jolin  H.  Cottrell,  the  defendant  in  error, 
was  a  brakeman  on  the  road  of  tlie  plaintiff  in  error  in  November, 
Ficn.  1885,  wiien,  oti  the  nineteenth  of  the  said  month,  hie 

Land  was  mashed  off  bj  being  caught  between  two  cars.  Tlie  cir- 
cumRtancea  attending  tiiis  accident  were  that,  it  being  necessary  to 
«onpIe  together  some  cars  standing  on  the  main  track  of  the  road, 
and  get  them  arranged  and  then  moved  out  of  the  way  of  the 
regular  trains  on  the  road,  one  train  being  shoitly  due,  an  en- 
gineer named  Jones  was  called,  with  hie  shifting  engine,  already 
steamed  np  and  ready  for  work,  from  a  side  tmck,  and  set  about  this 
business.  The  conductor  of  the  shifting  engine  was  present  with 
his  lantern,  it  being  still  in  the  night-time,  and  also  tlie  fireman  ; 
and  the  defendant  in  eri-or,  Cottrell,  was  on  hand  to  do  the  coup- 
ling. There  were  five  stock  care  among  these  etanding  care  men- 
tioned above,  there  being  some  merchandise  cai-s,  which  divided  the 
Atock  cars;  three  standing  west  of  ali  the  otiiere,  and  two  east  of 
the  merchandise  cars,  next  to  a  gondola  car,  which  was  at  the  east 
«nd.  The  object  in  view  wae  to  put  these  stock  cars  together. 
The  merchandise  cars  were  firet  removed  to  a  siding,  when,  the 
«ngine  returning  with  the  gondola  and  two  stock  cai«,  the  con- 
ductor ordered  Oottreil  to  couple  the  two  etock  cars  to  the  three 
stock  cars,  as  the  engine  closed  tliem  up,  coming  west,  and  he 
^the  said  conductor  assumed  the  duty  of  uncoupling  the  two  from 
the  gondola  when  the  coupling  iiad  been  made  wliich  fastened 
tlie  stock  Gal's  together.  The  engine  came  on  with  tlie  moving 
cars,  the  coupling  was  made  by  Cottrell,  and  the  gondola  anconpled, 
or,  as  the  phrase  is,  tlie  cars  were  cut  loose   by  the  condnctor. 


^dbyGoOglc 


MASTER  AND  BEEVANT — MBK   OF   EMPLOYMENT.         237 

"When  Cottrell,  coming  close  to  the  conductor,  was  asked,  "  How^ 
are  yon  fixed," — a  pbrase  which  is  said  to  mean,  "  Did  you  make 
the  coupling  or  not," — Cottiell  replied,  "  I  am  rained,"  and  held 
up  his  maslied  hand,  which  was  afterwards  cat  oS  by  the  snrgeons, 
it  being  destroyed  by  the  injury  it  had  received.  Oottrel]  saed 
the  company  and  recovered  a  judgment  for  $6,000,  from  wliicb 
the  plaintifi  in  error  applied  for  aud  obtained  a  writ  of  error  t» 
this  court. 

The  first  error  assigned  here  is  the  refosal  of  the  court  below 
to  dismiss  the  action  on  account  of  the  InsufHciency  in  the  return 
of  the  sergeant  upon  the  original  process  in  the  case.  The  retam 
is  that  it  was  executed  by  delivering  a  copy  to  Charles  Q,  Eddie, 
Tice-president,  at  liie  office  in  the  city  of  Boauoke,  he  being  a  resi- 
dent of  said  city, — the  president  being  a  non-resident,  and  absent^ 
etc.,  also  by  delivering  a  copy  to  Joseph  H.  Sands,  general  siiper- 
iotendent  of  the  Norfolk  &  Western  R.  Co.,  in  the  city  of  Koa-  - 
noke,  Virginia, — said  Sands  being  a  resident  of  said  city, — January 
16,  1886. 

Our  statute  (Acts  1883-84,  p.  701)  provides  for  service  on  tho 
president  or  other  chief  officer ;  in  his  absence,  on  certain  named 
officers,  and  if  there  are  none  such,  or  they  are  absent,  then  *'  on 
any  agent  tliereof,  or  on  any  person  declared  by  the  a«m™  ow 
laws  of  this  State  to  be  an  ngent  of  such  corporation  ;"  ES^SiSm"" 
vliich  act  is  as  follows  i  "  It  sliall  be  sufficient  to  serve  *»''™- 
any  process  against  or  notice  to  a  corporation  on  its  mayor,  rector, 
president,  or  other  chief  officer,  or  in  his  absence  from  the  county 
or  corporation  in  which  he  resides,  or  in  which  is  'the  principal 
office  of  the  corpoi'ation  against  or  to  which  the  process  or  notico 
is,  if  it  be  a  city  or  town,  on  the  president  of  the  council  or  board 
of  trustees,  or,  in  liis  absence,  on  the  recorder  or  any  aldermen  or 
trusteo ;  and,  if  it  be  not  a  city  or  town,  on  the  caEbier  or  treasurer, 
and,  if  there  bo  none  such,  or  he  be  absent,  on  a  member  of  the 
board  of  directora,  ti-ustees,  or  visitors.  If  the  case  be  agiiinst  a 
bank  of  circulation,  and  be  in  a  county  or  corporation  wlieiein  the 
bank  has  a  branch,  service  on  tlie  president  or  cimliier  of  such  branch 
bank  shall  be  sufficient;  and  if  the  case  be  against  some  otJicr  cor- 
poration, whether  incorporated  by  the  laws  of  this  State,  or  any 
otiier  State  or  country,  transacting  business  in  this  State,  or  any 
agent  thereof,  or  any  person  declared  by  the  laws  of  this  State  to 
be  an  agent  of  such  corporation  ;  and,  if  there  be  no  such  agent  in 
the  county  or  coi'poi'atton,  publication  of  a  copy  of  the  process  or 
notice,  as  an  order  is  pnblisiied  under  the  eleventh  section  of  tliift 
chapter,  shall  together  be  Bofficient.  Service  on  any  person  under 
this  section  ehallbe  in  the  county  or  corpoi-ation  in  wliicli  he  re- 
sides, or  in  which  the  principal  office  of  the  company  is  located ; 
snd  the  return  shall  show  tins,  and  state  on  whom  and  when  the 
•errice  was,  otherwise  the  service  shall  not  be  valid." 


^d  by  Google 


■ti36  NOKFOLK   A.Nn    WESTERN   R.    00.   V.    OOITOELL. 

The  defendant  in  this  caee  was  a  I'ailroad  companj  ;-  not  a  town 
tMor  a  bank.  The  preeideritwaB  a  uon-resident,  and  absent.  The 
I  vice-president  was  not  tlie  president,  nor  was  lie  an;  otlier  .person 
.who  was  chief  officer  of  this  company.  The  chief  officer  jii  tl(is 
'Case  is  the  president.  £nt  tlie  return  does  not  stop  with  evidence 
of  sei-vice  of  a  copy  on  tills  officer.  It  proceeds,  "  to  Jos.  H.  Sanids, 
•  general  superintendent,"  etc.  H9  is  not  the  chief  officer  of  the 
company  ;  bnt  does  he  not  come  within  the  general  terms  of  the 
«tatute  which  provides  for  service  "on  any  agent  of  tlio  corponi- 
'  tion,"  and  do  not  these  words  inclnde  tlie  vice-pi'esideiit  as  well  t  J  f 
such  be  not  tlie  chief  officer,  they  ai-e  agents  of  the  company,  lint 
:it  is  earnestly  argued  that  it  must  appear  that  tliese  officers,  in  the 
order  named  in  Uie  statntc,  are  either  not  in  existence, — tliat  is, 
tliat  there  are  none  such, — or  tliat  they  are  abeenr,  before  any  one 
named  in  the  etatate  euiieequently  can  be  made  available.  For 
«xample,  if  the  president  or  other  chief  officer  is  not  absent,  then 
tliere  is  no  authority  in  the  law  to  serve  on  the  cashier;  and,  if 
the  casiiier  be  not  absent,  then  there  is  no  authority  to  serve  ah 
the  treasurer;  and  that  wlthont  the  absence  of  all  these,  there  can 
be  no  valid  service  on  the  members  of  the  board  of  directors:  and 
unless  these  are  all  absent,  or  not  existing,  tlie  service  on  an  agent 
is  not  autltorized. 

■Wliatevei"  may  be  the  force  of  this  reasoning  ns  to  a  city,  or 
town,  or  biink  of  circulation,  tiio  law  provides  after  naming  these, 
as  we  have  seen,  "and  if  the  case  be  against  some  other  corporation, 
whether  incorporated  by  the  laws  of  this  State,  or  any  other  State 
or  'country,  'transacting  business  in  this  State,  on  any  agent 
thereof ; "  and  further,  us  if  to  exclude  the  argument  that  such  and 
snch  an  officer  was  not  what  the  company  called  an  agent,  it  pro- 
vides, "or  any  pei'son  declared  by  tli^  laws  of  this  Slate  to  \>e  an 
agent  of  such  corporation." 

While  this  statute  appears  to'he  cumbrous  in  style,  and  sorue- 
wliat  involved,  it  shonld  not  be  so  construed  as  to  render  its  pro- 
visions  inoperative,  but  so  as  to  render  the  legislative  intent  enect- 
Qal.  It  is  obvious  from  the  terms  of  the  statute  that  the  intent 
of  the  legislatnre  was  to  provide  a  method  by  which  it  wonld  bo 
no  longer  difficult  to  pi-ojJGily  execnte  the  process  of  the  courts 
upon  the  corporations  in  the  State;  and  so  we  find  the  most  gen- 
oral  terms  employed — "  any  aeent."  The  term  "  agent"  is  one  of 
'  very  wide  application,  and  includes  a  great  many  classes  of  persons 
to  whieli  distinotive  appellations  are  given — as  factors,  brokers,  at- 
torneys, cashiers  of  banks,  clerks,  consignees,  etc. ;  indeed  any  que 
.  who  ondertakes  to  transact  some  business,  or  to  manage  some  afEair, 
for  another,  by  aathority  and  on  account  of  the  latter^and  to  i\^n' 
-der  an  acoonnt  of  it,  is  denominated  an  agent.  .  And  it  waa:tihe 
plain  legisktire  intent- to  wiooth  away  the.verjr  «b«traoti<Wj^)|ipl> 


^d  by  Google 


MASTER  AND  3EKVANT — BIBK   OF  EHPLOTHEMT.        XSQ 

'«re-aonglit  to  be  interpoHed  here,  between  this  eMniwny.  aadite- 
vponBibiiity  songbt  to  be  imposed  Dpoo  it  hy  this  Buit. 

We  have  been  tbns  explicit  in  the  examination  and  constrRCttva 
'Of  [U» statute  beoaafio  it  must  be  recoffoized  as  of  importanceithat 
'diis'statate  shall  be  sDderetood  by  all;  and  we  think  it  is  plain 
tfiat  tiie  writ  may  be  served  on  "  any  agent "  of  a  corporation  <io. 
ing  boNness  in  this  State,  and  encb  service  is  valid  whoever  may 
be  tlie  officers  of  such  company,  and  whatever  may  be  their  eev* 
eral  employments :  provided,  rs  the  law  provides,  "  service  on  any 
person  ander  this  section  shall  be  in  the  county  or  corporation  in 
'Whicli  he  resides  or  in  which  the  principal  office  of  the  company  is 
located;  and  the  retnni  eiiall  show  tins,  and  state  on  whom  and 
when  the  service  was,  otherwise  the  Service  shall  not  be  valid." 
And  we  think  the  hustings  conrt  of  Roanoku  city  did  not  err  in 
overruling  the  motion  to  diemies  the  action  on  this  gronnd. 

The  nezt  assignment  of  error  is  the  action  of  tlie  conrt  in  over- 
raling  the  demun'er  of  the  defendant  to  tlie  declaration.  Upon 
this  assignment  no  reliance  was  placed  in  the  arsument  by  coon- 
'Sel  in  tbis  coart,  and  we  peroeive  no  error  in  that  action  of  the 
conrt. 

The  next  assignment  of  error  is  the  refasai  of  the  court  to  give 
-certain  instrnctions,  ten  in  namber,  which  the  conrt  changed  in 
some  respects,  gave  No.  4  and  No.  6  in  his  own  handwriting,  and 
instrnctea  the  jury  in  nine  instrnctions.  No  objection  ooBitsmuMP 
is  nrged  in  the  ai^nmont  here  to  any  of  these  instrnc-  '»»■■''"">«■ 
tions  except  the  eighth.  Tbie  is  claimed  to  be  fatally  bad ;  that  it 
slionld  liave  been  divided  ;  and  that  it  proceeds  upon  the  aeeump- 
tion  that  the  defendant  in  error  did  not  perceive  that  bis  signals 
bad  not  been  obeyed,  jnst  before  going  in  between  the  cars,  and 
that  it  concludes  with  the  assninption  tliat  the  cars  were  rnn  back 
in  Bach  a  violent  and  rapid  manner  ae  to  confnse  and  fiighten  the 
defendant  in  error.  The  instmction  is  not  obnoxions  to  either  of 
these  objections.  There  is  no  assumption  of  fact  to  be  found  in 
either  branch  of  the  insti-nction ;  bnt  the  law  is  stated,  and  cor- 
rectly stated,  npon  a  state  of  things  in  each  case  made  to  depend 
upon  the  finding  the  jurr  should'  make  from  the  evidence.  The 
court  Bays :  "Bnt  if  the  jury  shall  believe  from  the  evidence  that 
the  plaintiff  made  the  signal  to  stop  in  proper  time  for  the  train  .to 
be  stopped,  or  reduced  to  a  safe  speed  at  the  momentof  coupling," 
etc ;  and,  in  the  last  olanse, "  and  if  tbey  farther  believe  tnat,  on 
account  of  the  WRnt  of  care  on  the  part  of  the  person  having  t^e 
niaaagemsnt  and  control  of  the  train,  the  defendant's  cars,  ware 
'  ran  together  in  snch  a  violent  and  rapid  manner  as  to  confnsaMid 
'frighben  the  plaintiff,"  etc.  There  is  no^iaaenmption  of  anytbipg 
"W exirting ^as  a  proved  faot  TheexiBtsnce  of  every  fact.isjicep- 
-eriy  tefti  tO' depend  npoo  'tiie  finding  of  the  jary  from  tlie-«vi- 
■4eiice.    iWe  think' tliereiia:  no  error. in-tliis^iDstruotioOt.andiiliie 


^dbvGooglc 


240         NOKFOLK   AND   WESTERN   E.    CO.   V.    COTTBBLL. 

rame  mnst  be  said  of  them  all.  Thej  correctly  exponnd  the  law 
as  applicable  to  thia  case,  and  there  ie  no  error  in  this  action  of  the 
court. 

The  next  assignment  of  error  is  for  the  refusal  of  the  court  to 
Bet  aside  tlie  verdict  of  the  jar^  iii  the  ease,  and  to  grant  a  new 
trial  to  the  defendant.  Tlie  evidence  in  the  case,  shows  that  the 
plaintiff  was  an  employee  of  the  defendant  company; 
bmom  a  ■>■  that  he  was  employed  as  a  brakcman,  and  for  trie 
un>B  TXMDicT  work  of  coQplinz  cars  abont  which  he  was  eneaced; 
— vicn.  tliat,  wnilo  lie  was  a  minor,  he  was  a  fnli-grown  man^ 

and  was  in  the  habit  of  finding  employment  for  him' 
self;  that  he  had  been  in  tlie  employ  of  the  company  less  than 
three  days ;  and  that  he  had  promised  to  bring  his  father's  consent, 
or  saying  what  was  equivalent  to  that, — his  father  being  cognizant 
of  liis  emplcjymeut,  and  seeing  him  daily.  The  risk  incident  to 
coupling  cai-B  was  assumed  when  the  service  was  nndertaken. 
Kothirig  is  better  settled  than  that  the  employee  takes  upon  him- 
self all  the  natnral  risks  and  perils  incident  to  the  service ;  and 
this  grows  out  of  the  contract  which  the  law  implies  from  the  en- 
gagement of  the  parties. 

When  a  servant  enters  upon  an  employment,  be  accepts  the  serv- 
ice subject  to  the  rieke  incident  to  it.  An  employee  who  con- 
ti'acts  for  the  perfoi'mance  of  hazardons  duties  assumes  sncli  risks 
as  incident  to  their  discharge  from  causes  open  and  obvious, 
the  dangerous  character  of  whicli  causes  he  had  opportunity  to 
ascertain.  If  a  man  chooses  to  accept  employment,  or  continao  in 
it,  with  the  knowledge  of  the  danger,  he  must  abide  the  conse- 
quences so  far  as  any  claim  against  liis  employer  is  concerned.  It 
is  the  duty  of  tiie  company  to  exeiciee  all  reasonable  care,  to  pro- 
vide and  maintain  safe,  sound,  and  suitable  machinery,  roadway, 
structures,  and  instrumentalities;  and  it  mnst  not  expose  its  em- 
ployees to  risks  beyond  those  which  are  incident  to  the  employ- 
ment, and  were  in  contemplation  at  the  time  of  the  contract  of 
service;  and  the  employee  has  the  right  to  presume  these  duties 
liavo  been  performed. 

As  has  been  stated,  the  accident  in  this  case  occurred  when  the 
defendant  in  error  was  engaged  in  conpling  ears.  After  the  con^ 
diietor  threw  the  switch  wnich  connected  tLe  main  track  between 
the  two  sections  of  the  train  or  parcels  of  cars,  he  signalled  the  en- 

Sineer  to  go  ahead.  He  told  the  defendant  in  error  to  hurry  up, 
lat  the  expected  train  from  the  west  was  nearly  due,  and  he 
wanted  to  get  these  cars  off  of  the  main  line.  The  defendant  in 
error  says  "  the  engineer  came  ahead  according  to  the  signal  until 
about  a  car  length  or  more  from  me,  and  I  saw  he  was  coming  too 
fast  for  me  to  make  the  coupling,  and  I  gave  him  a  signal  to 
steady  up.  When  he  came  nearer,  about  twelve  feet  from  me,  I 
ehnt  Mm  oS  entirely;"  that  the  engineer  did  not  steady  up,  and 


^d  by  Google 


KASTEB  AND   8EBVANT — EISK   OF  EMPLOTMEKT.        241 

did  not  stop  ;  that  tli«  engineer  was  not  in  Bight,  bnt  the  condactor 
was  in  sight  of  botli,  and  it  was  liis  duty  to  pass  the  signal ;  that 
be  does  not  know  whether  the  condnctor  passed  the  signal  on  or 
not,  bnt  that  neither  of  these  signals  were  obej'ed ;  that  when  tlie 
moving  train  which  was  coining  at  this  speed,  too  great  to  make 
the  coupling,  was  near  the  standing  cars,  he  stepped  in  between 
the  cars,  and,  as  the  train  came  up,  he  eanght  hold  of  the  link  of 
the  moving  train  with  his  left  hand,  and  placed  it  in  the  draw- 
head  of  the  standing  car,  and  the  train  came  together  so  violently 
timt  liis  hand  was  caught  between  the  dead-blocks,  and  was 
masiied ;  that  he  sprang  ont  then,  and  saw  the  condactor  come 
from  between  the  two  stock  cars  and  the  gondola,  where  he  had 
been  to  cut  tliem  loose ;  that  the  train  never  ceased  to  move,  all 
though  it  may  have  ceased  a  little  after  it  stnick  the  three  cars 
tliat  were  standing;  the  only  stopping  was  caused  by  the  concus- 
sion with  the  three  standing  cars;  that  he  was  six  feet  high,  and 
tliat  standing  by  the  cars  that  night  the  dead-blocks  came  about  to 
his  waist,  and  that  these  cars  were  standard  care,  and  that  lie  knew 
their  shape  and  construction,  Jiaving  been  engaged  in  work  upon 
their  nianufaetnre,  and  that  they  were  made  in  the  shops  at  Koan- 
oke  city. 

It  was  proved  in  the  case  that  the  dead-blocks  were  bnmpere 
placed  on  these  cars,  and  all  others,  expressly  to  receive  the  con- 
cussion and  the  shock  when  moving  cars  came  in  contact  with  sta- 
tionary cai-8,  and  that  the  draw-heads  into  which  the  conpling  was 
fastened  were  so  constructed  as  to  yield  to  pressure,  and  give  on  a 
spring  when  the  cars  came  together  so  as  to  leave  the  shock  of  the 
oollision,  whatever  it  might  be,  to  the  dead-blocks,  whicli  were  so 
constracted  as  to  receive  this  inevitable  shock  without  injury ;  that 
while  it  was  possible  to  so  make  a  conpling  withont  bringing  the 
dead-blocks  into  collision,  yet  that  it  was,  in  fact,  in  practice,  sub- 
fitantially  impracticable;  that  it  could  only  bo  done  by  stopping 
the  moving  cars  after  tlie  impingement  of  the  draw-heads  within 
an  incli  or  two;  and  it  is  proved  that  if  the  hand  of  this  defendant 
in  error  Jiad  not  been  placed  between  these  dead-blocks  it  would 
not  have  been  hurt,  while,  if  placed  between  them,  it  was  obliged 
to  be  hurt,  whether  the  cars  were  moving  very  slowly,  or  too  fast. 
The  dead-blocks  are  constracted  on  the  framo  of  the  car  above  the 
draw-heads,  which  are  below,  and  attached  to  thfe  trucks. 

The  ri^ht  of  the  plaintiff  to  recover  in  this  case  is  dependent  on 
the  qaesCion  whetlier  the  defendant  was  gailty  of  negligence.  If 
tlie  injury  was  occasioned  solely  by  the  negligence  oi  the  defend- 
ant there  can  be  no  doabt  of  the  plaintiff's  right  to  recover  dam- 
ages for  the  injury;  but  if  there  was  negligence  on  the  part  of  the 
plaintiff,  which  contributed  to  the  injury,  the  law  will  not  nnder- 
take  to  apportion  the  fault.  Tliere  can  be  no  recovery  for  an  in- 
.  JDry  caused  by  the  mntaal  fanlt  of  both  parties.  The  mere  n^- 
81  A.  &  E.  R  Caa.— 16 


^d  by  Google 


24S  NOBFOLK   AND   WESTKRN   E.    00.   «.    OOTTREU., 

]i{i;etice  of  tlie  plsintiff,  liowever,  would  iiot  disentitle  iiim  to  re- 
cover, uiilaas  it  wera  fiuoli  tliat  but  foi-  tliat  negligence  tlie  miBfor- 
tuiie  would  not  have  iiappeued;  uor  if  Uie  defendant  iiiigbt,  hy 
tiie  exercise  of  care  ou  Lis  part,  liave  Hvoidad  the  ooiiseqneucee  of 
tlie  plaintifE's  negligence.  Dnn  v.  Seaboard  &  B.  Co.,  78  Ya.  661 ; 
e.  c,  6  Am.  &  Ei>g.  R-  B.  Cas.  363,  and  case  cited ;  Clark  v,  Kicli- 
mond  &  D.  R.,  78  Va.  661 ;  s.  c,  18  Am.  &  Eiig.  E.  E.  Cas.  78, 
and  oited  oasee ;  Darracatts  v.  Chesapeake  &  O.  B.,  31  Am.  &  Eiig. 
B.  B.  Cae.  167,  and  caaee  there  cited. 

[f  the  cars  were  moving  at  too  great  a  rate  of  speed,  and  the 
plaintiff  oonld  see  it  and  knew  it,  ob  lie  said  he  .did,  it  vae  n^li- 
gence  in  hitn  to  go  between  the  cars  to  make  the  coiipliug ;  and,  if 
mey  were  not  moving  at  too  great  a  rate  of  speed,  tuen  the  com- 
pany was  guilty  of  no  negligence,  and  the  plaintiff  cannot  recover 
duinagee  for  the  injary.  But  it  iB  a  concession  that  the  cars  were 
uot  moving  at  too  great  u  rate  of  speed ;  and  it  is  proved  tliat  they 
came  to  a  stand-still  when  they  came  together,  and  tlie  conductor 
stepped  in  and  uncoupled  them  withont  difficulty.  Bat  it  is  in- 
sisted that  the  plaintiff  signaled  tlie  cars  to  stop,  and  they  failed  to 
do  this,  and  that  this  was  negligence.  He,  the  plaintiff,  says  that 
when  the  train  was  within  10  or  12  feet  of  him,  lie  saw  it  was  com- 
ing too  fast,  and  he  signaled  to  atop  it;  that  it  did  not  stop,  and 
when  near  to  bim,  he  stepped  in  to  make  tiie  coupling,  and  was 
hurt.  If  be  saw  tliat  none  of  hie  signals  bad  been  obeyed,  it  was 
bis  duty  to  stay  out,  and  it  was  negligence  for  him  to  go  in  be- 
tween the  care. 

Bnt  it  is  clear  in  this  case  that  the  defendant  company  was 
goilty  of  no  negligence  whatever.  The  cars  were  of  standnrd  make, 
without  defect ;  the  speed  was  snilable  and  proper  ;  the  servants 
employed  were  trustworthy;  and  the  accident  which  resulted  in 
the  injury  was  the  immediate  result  of  the  plaintiff's  own  act,  in 
patting  his  hand  awkwaixlly  between  the  dead-blocks.  These  blocks 
we,  as  their  name  indicates,  dangerous.  They  are  to  be  avoided 
in  all  couplings,  and  are  upon  all  cars.  They  are  not  in  a  line 
with,  nor  in  close  proximity  to,  the  draw-heads,  but  they  are  on 
eusix  side  and  above  the  draw-heads ;  and,  wiiile  they  are  dangerous 
in  themselves,  they  are  necessary  to  preserve  the  life  of  tlie  urake- 
man  by  protecting  his  body  from  the  cars,  and  they  are  a  necessary 
precaution  against  danger.  Tliey  are  open,  obvious,  and  notorious, 
«nd  all  br^emen  understand,  doubtless,  tliat  they  must  keep  their 
luinds  from  between  them,  for,  if  they  were  to  touch  ever  so 
gently,  the  touch  would  crush  all  that  came  between.  The  plain- 
tiff diatinctly  admits  that  be  knew  the  situation  of  these  dead> 
Uoi^ ;  that  their  situation,  nee,  and  the  danger  snrronnding  them 
were  known  to  him  is  clearly  proved.  He  iwd  been  engaged  as  a 
mechanic  is  their  manufacture  in  the  shops  cloee  by.  The  risk  in- 
oarred  by  hiai  was  the  same — no  greater  tliaD  that  incurred  by  nH 
who  undertake  to  couple  these  cars.     The  riek  was  ordinarily  inci- 


i,z.dt,vGoOgle 


HASTVK  A«P  ^KTANr— RISIC  OF  SHpLUTW^T.       S43 

dent  to  Ilia  employment,  and  be  was  injured  becaoee  he  failed  to 
take  ordinai-y  care  in  the  premiKeB. 

As  was  said  by  Q-reen,  J.,  Northern  Cent.  R.  Oo.  v.  Hnsson,  13 
Am.  &  £n^.  B.  K.  Cae.  241 :  "  It  is  not  claimed  that  there  was  any 
defect  in  the  road-l>e(l,  or  tlie  CQis,  or  in  the  conplinc;  apparatus. 
T)ie  ininry  was  not  the  result  of  any  defect  in  any  of  the  appli- 
ances famished  by  the  defendant.  On  the  contrary,  it  was  the  re- 
snlt  of  the  niiiiinej'  in  wbicii  the  coupling  was  performed."  This 
-conpling,  under  similiir  circumstances,  is  done  every  day  with  per- 
fect safety,  when  properly  done,  while,  as  we  have  already  said, 
diere  are  no  circnmatances  nnder  which  the  coupling  could  be 
performed,  and  the  hand  thrust  between  the  dead-blocks,  witLi 
safety.  "  It  is  manifestly  apparent  from  the  entire  body  of  the 
t^timony,  as  from  the  pluincins  alone,  that  the  risk  under  consid- 
eration wiiH  one  of  the  ordinary  rieks  of  the  bnsinees  in  which  the 
defendant  in  error  was  engaged,  and  hence  there  is  no  liability 
resulting  from  it."  See,  also,  Patterson  v.  Pittsburgh  &  C.  K.  Co., 
76  Pa.  Sc.  393;  Pittsburgh  &  C.  E.  Co.  v.  Sentmeyer,  93  Pa.  St. 
376 ;  s.  c,  5  Am.  &.  Eng.  R.  R.  Cas.  568 ;  Baker  v.  Aileghenv  Val. 
R.  Co.,  95  Py.  St.  21 1 ;  8.  c,  Aui.  &  Eng.  R.  R.  Cae.  141 ;  bay  v. 
Toledo,  C.  S.  &  D.  R.  Co.,  42  Midi.  323 ;  b.  c,  2  Am.  &  Eng.  R.  R. 
€aB.  126 ;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Plunkelt,  2  Am.  &  Eng. 
R.  R.  Cas.  128 ;  Columl.ns  &  X.  R.  v.  Webb  (opinion  of  Sutliff, 
O.  J.),  12  Ohio  St.  475 ;  Sweeney  v.  Berlin  &  J.  E.  Co.,  101  N. 
Y.  620,  524;  Pattersou  R.  Accident  Law,  345,  and  cases  cited; 
Whart.  Nejr.  391;  Tbomp.  Neg.  1019;  Mui-sh  v.  South  Carolina 
R.  Co.,  56  Gd.  274-277. 

In  this  case,  the  company,  the  ptaintifE  in  error,  appears  to  be 
«ntirely  withont  fault  in  the  matter,  and  there  was  no  inst  ground 
upon  which  tlie  finding  of  the  jury  could  be  sustained.  We  are 
therefore  of  opinion  tliut  the  hustings  court  of  Roanoke  city  erred 
in  its  action  tn  refusing  to  set  aside  the  verdict  of  the  jury,  and  for 
that  action  the  jndgment  in  this  case  will  be  reversed  and  annnlled, 
and  the  case  remanded  to  the  said  hustings  court  of  Roanoke  .city 
for  a  new  trial  to  be  had  therein. 

Coupling  Cart.— Bee  note  to  Darracutta  t.  Chevapeoke  &  Ohio  R.  Co.,  mi*, 
p.  187. 

Risks  of  Emp<oymsnt.-^See  next  cue  and  note. 

Sarvlcs  irf  Proceu  upon  Railroad  Companlsfc — Bee,  generally,  State  e. 
Pennnlvania  R.  Co.,  1  Am.  &  Eog.  R.  R.  Cas.  626;  Houston,  etc.,  R.  Co. 
«.  ^ord,  2  lb.  414;  Stout  o.  Sious  City,  etc.,  R.  Co.,  2  lb.  646;  Houston, 
etc.,  R.  Co.  V.  W»lie,  5  lb,  541;  Railway  Co.  e.  Jewett,  8  lb.  708;  HoTwton, 
«tc.,  R.  Co.  c.  Btirke,  9  lb.  62;  QalvestOQ,  etc.,  R.  Co.  r.  DoQahoe,  9  lb.  387; 
EroUBlti  t>.  Uiuouri  Pac.  R.  Co.,  18  lb.  60S;  GhaOee  v.  RutUnd  R.  Co.,  IB 
lb.  406;  MaparUit.  Louii,  etc.,  R.  Co.,  16  lb.  UT;  ^Luqg  Ohuqg  c.  No.  P«C. 
B.  Co.,  V  lb.  U8;  Chioago,  ate,  R.  Co.  v.  Walker,  IB  lb.  CfiS;  Beltzell  t. 
■CbioKo,  etc,  R.  Co.,  10  lb.  619;  Ho.  Pac.  R.  Co.  v.  Collier,  18  lb.  SBl; 
BRft  Tenn.,  etc..  R.  Co.  t>.  Bojljw,  IS  It>.  480;  Bt.  Pafil,  etc.,  R.  Co.  •.  Mia- 
nesotk  R.  Co.,  36  lb.  aso. 


^d  by  Google 


WILSOir  ti.    WINONA  AND  BT.  P£IBS  B.   OO. 


"WiLBOB,  Admz. 


"WisosA  ANB  St.  Pbteb  E.  Co. 
(Adeanet  Oaie,  iRnaetota.     July  30,  1667.) 

Where  tbe  forerosn  or  jEird-muter,  who  had  ch&rge  of  the  switching  of 
eanj  and  the  making  ap  of  traini,  in  the  yard  of  a  railroad  company,  waft 
familiar  with  the  Bituatloa  of  the  tracks  in  the  yard,  and  knew  that  a  certain 
"frog"  was  not  properly  blocked  or  filled,  and  waa  uniafe  and  dangerous  to 
persons  engaged  in  (witching  cari,  held,  that  he  took  upon  himself  the  risk 
of  its  condition  as  incident  to  his  employment. 

And  where  a  section  foreman  to  whom  such  yard-master  applied  to  improTtt- 
the  track  at  that  point,  so  as  to  lessen  the  risk,  notified  htm  that  he  could 
not  do  it  without  ordorB  from  his  superior,  but  upon  a  subsequent  application 
promised  conditionally  "  that  he  would  do  it  if  he  got  time  some  Saturday 
afternoon,"  /leid,  insufficient  to  bind  the  company,  and  relieve  him  from  th» 
risk,  and  that  there  was  no  reasonable  connection  between  such  indefinitfr 
nnd  contingent  promise  and  his  continuance  in  tbe  business. 

Appeal  from  district  court,  Blue  Earth  county. 
Daniel  Buck,  O.  K.  Davis,  and  Pfau  <£  Freeman  for  Wilson^ 
respondent. 

WHeon  t&  Bowers  for  "Winona  and  St.  P.  K.  Co.,  appellant 

Vandeebueoh,  J. — Tlie  plaintiff,  widow  of  James  Wilson,  de- 
ceased, and  adminiBti'atnxof  liie  estate,  brings  this  action  to  recover 
damages  for  injuries  resulting  in  Iiis  death,  and  alieged  to  have  been 
cansed  by  the  negligence  of  tlie  defendant.  In  the  yard  of  tlie  com- 
FicTs.  pany  nt  Hankato,  it  ia  alleged  that  a  certain  frog  con- 

necting the  main  track  witli  a  Ewitch  track  was  left  in  an  nnsafe  and 
Tinpvotected  condition,  and  that  the  road-bed  was  improperly  con- 
structed at  tliat  point,  in  that  an  open  space  was  left  nnder  the  rail, 
BO  that  the  deceased,  while  engaged  in  the  buEinees  of  tlie  company, 
accidentally  caught  his  foot  in  or  nnder  the  frog,  and  was  rim  over 
and  killed  by  the  cara.  This  yard  is  connected  with  the  main  line 
of  tlie  company  by  a  spar  track  about  three  miles  long,  and  it 
appears  that  the  deceased  was  conductor  on  this  short  line,  and  had 
the  management  of  the  business  at  the  yard,  including  the  switch- 
ing and  making  up  of  trains.  He  had  been  go  engaged  for  aboat 
three  years,  and  was  familiar  with  the  character  and  situation  of 
the  tracks  in  the  yard,  including  the  frog  and  track  in  qnestion. 

The  evidence  shows  that  the  track  at  this  point  was  constructed 
in  the  same  manner,  and  left  in  the  same  condition,  as  at  otlier 
*'  &-ogs  "  in  the  yard.    It  was  pat  in  and  conetmcted  in  September^ 


^d  by  Google 


HA8TBB  AND   aEBYANT— BI3E   OF  EMPLOTHBNT.         245 

1880,  and  the  accident  occurred  on  the  tweDty-second  of  June, 
1881 ;  and  it  appeara  that  tlie  deceased  knew  the  riska  and  dangers 
connected  with  tlie  ase  of  the  ti-ack  ut  this  point  to  pei'sons  engaged 
in  switcliing  while  coupling  and  nncoapling  cars.  The  deceased, 
at  the  time  lie  was  injured,  was  attempting  to  ancoiiple  cars  while 
in  motion.  He  was  at  the  same  time  giving  directions  or  signals 
to  the  engineer,  who  with  the  brakenian,  then  stationed  on  the 
cars  Bonght  to  be  separated,  was  snL>jcct  to  his  control,  and  while 
he  was  BO  occupied  and  walking  between  the  rails  the  accident 
occurred.  It  appeare,  we  think,  that  tlie  cars  could  have  been 
fiafely  iineoupled  by  causing  the  brakeniau  to  bring  the  rear  curs 
to  a  stop,  and  thus  save  the  risk. 

1.  Conceding  that  the  qnestions  of  the  negligence  of  the  com- 
.pany  in  constructing  tiie  truck,  and  of  the  contributory 
negligence  of  the  deceased  in  attempting  to  uncouple  JSk^^bcSSi 
cars  while  in  motion,  and  occupied  in  giving  directions  Siot*"""" 
to  his  subordinates,  were  for  the  jury,  still  we  think 

there  is  no  doubt  that  it  mnst  be  held  that  ho  took  upon  himself 
the  risks  incident  to  the  situation  of  the  track,  upon  tlie  andisputed 
facts  of  the  case,  unless  it  is  made  Co  appear  tliat  he  was  relieved 
therefrom  by  the  acts  or  promises  of  liie  company,  Andei-son  v. 
Morrison,  22  Minn.  276;  Iliiahes  v.  Railroad,  27  Minn.  139; 
Omver  v.  Christian,  31  N.  W.  Rep.  457 ;  Siierman  v.  Railroad,  34 
Minn.  261 ;  Sullivan  v.  India  Maimf  g  Co.,  113  Mass.  399. 

2.  It  is,  however,  claimed  that,  before  tlie  accident,  ho  notified 
the  section  foreman,  wlio  had  charge  of  tlie  rcpaij-s  of  tlie  track, 
cpon  that  part  of  the  road,  of  the  defect  in  the  track  or  road-bed 
At  this  particular  place,  and  tliat  the  latter  promised  to  remedy  it, 
And  that,  in  continuing  in  defendant's  employ  there-  p^^ 
after,  he  must  be  deemed  to  have  relied  upon  tlie  foubutdu! 
promise,  and  to  be  relieved  of  any  responsibility  arising 

from  such  risks.  Tlie  determination  of  this  question  must  rest 
entirely  upon  the  constrnction  to  be  given  to  the  evidence  of  the 
witness  Madden,  the  section  foreman  referred  to,  who  was  the  only 
witness  who  testified  on  the  subject.  It  appeai-s  f roio  his  evidence 
that  he  was  sabordinate  to  the  road-master,  and  subject  to  tlie 
orders  of  the  latter,  and  that  his  regular  and  ordinary  work  was  to 
see  that  the  track  was  kept  in  repair  or  "  good  shape,  and  safe  for 
trains  to  pass  over,"  He  had  nothing  to  do  with  new  work  or 
changes  in  the  construction  of  work  aheady  completed,  except  as 
oixiered  by  his  superior.  Ttie  frog  and  aide  track  were  constructed 
by  him  under  the  orders  of  the  road-master,  leaving  a  space  of 
from  one  to  two  inches  under  the  rail  for  the  water  to  escape.  No 
changes  were  made  in  it  until  the  accident  iiappened.  The  work 
was  done  in  the  usual  way,  and  he  i-eceived  no  instructions  to 
modify  it.  The  evidence  shows  that,  if  the  earth  had  washed  out, 
it  womd  have  been  liis  duty  to  have  restored  it  to  its  uornaal  coa- 


^d  by  Google 


946        wtLftojf  «.  wincWa  aiTI)  6ft.  PKrtta  il  ffo. 

dition  by  repairs.  It  it  not  shown,  howovtir,  tliat  it  was  vitliin  ttt6- 
■copC  of  his  duty  to  fill  or  "plag"  the  spscti  in  question,  as  fbe 
deceased  desired,  without  orders,  nor  was  his  promise  in  itself 
infiiciBnt  to  bind  the  company.  Madden  was  not  subject  to  the 
orders  of  the  deceased.  The  first  time  the  latter  spoke  to  hiiB 
about  it  was  more  than  a  month  before  the  accident,  when  MaddenV 
reply  was:  "I  told  him  I  had  no  orders."  "He  spoke  to  me  to 
ping  it.  I  told  hltn  I  had  no  orders  to  fill  it,  and  I  conid  not  do- 
it without  orders."  And  abont  two  weeks  before  the  injury,  he 
says  deceased  again  addressed  him  on  the  subject.  "  He  said  that 
was  wliere  he  done  all  bis  switching.  It  was  not  very  nice.  It 
was  not  very  safe,  and  he  would  like  to  have  the  rads  filled  in 
between."  "I  told  him  that  if  I  got  time  I  wonld  fix  it  some- 
Saturday  in  the  afternoon.  This  is  the  answer  I  mode  him." 
There  is  no  other  evidence  on  the  subject.  We  think  it  preseijted 
no  question  for  tlie  jntr.  The  deceased  had  had  long  experience- 
in  the  railroad  service  in  varions  capacities.  He  was  clearly  aWare 
of  the  dangerous  nature  of  this  froe,  to  those  engaged  in  switching. 
Tiie  promise  was  made  by  a  subordinate  subject  to  the  orders  of  a 
superior,  as  he  was  distinctly  informed,  and  indefinite  and  eoDtin> 
^nt  in  its  character.     He  was  not  warranted  in  relying  npoti  jL 

Earticniarly  as  he  had  control  of  the  movements  of  the  cars,  ana 
y  tlie  aid  of  the  brakeman  could  have  accomplished  the  desired 
result  without  risk.  Marquette  R.  v.  Spear,  41  Mich.  ITS.  Wb 
fail  to  see  any  reasonable  connection  lietween  the  promise  of  Mad- 
den and  Wilson's  continuance  iu  the  business.  Sweeney  V.  Berlin 
Co.,  101  N.  T.  525. 

As  there  is  no  conflict  in  the  evidence  upon  any  material  point 
in  the  case,  and  its  interpretation  is  not  donbtfnl,  a  dismissal  in  the- 
natnre  of  a  nonsuit  was  proper.  The  order  granting  a  new  trial  is- 
reversed. 

Bbrbt,  J.,  owing  to  sickness,  took  no  part  in  this  decision. 
See  Ouraciitta  «.  Chesapeake  &  Ohio  R.  Co.,  ante,  p.  1S7. 

Matter  and  Servant— Ritkt  of  employment. — Rulway  employees  MBumfr 
the  ordinary  rUk,  hazard,  and  danger  incident  to  the  place  and  the  duties 
which,  for  the  ccasideration  agreed  upon,  they  have  undertaken  to  discfaame. 
Hutcbinson  e.  R.  Co..  S  Bxch.  S4S;  Penna.  Co.  e.  Lynch,  BO  III  8S4-,  St. 
Louis,  etc.,  R.  Co.  e.  Britz,  72  IIL  W%;  Oihaon  e.  N.  T.,  etc.,  R  Co.,  63  N.  Y. 
MS;  DeForeBt  e.  Jewett.  88  N.  Y.  264;  s.  c.  8  Am.  &  Eng.  R.  R.  Caa.  49S; 
Louiiville,  etc.,  R.  Co.  «.  Frawle;,  28  Am.  &  Eng.  R.  R  Caa.  808-,  Atlaa 
Xngine  Works  «.  Randall,  100  Ind.  i6B. 

la  C.  &  X.  R  V.  Webb,  13  Ohio  St.  475,  Butcliff,  C.  J.,  sajs:  "Whether 
the  employee  seek  employment  in  a  machine-shop,  or  on  board  a  iteamboat, 
npon  a  railroad  trun,  or  to  pilot  rafts  over  dangerous  rapidi,  to  labor  in  a 
powder-mill,  or  to  serve  upon  a  whale  ahip,  or  if  pon  a  voyage  of  discovery  in 
the  Arctic  region*;  in  each  and  all  of  the  several  employments  and  poaitiona 
chosen,  the  employee,  by  entering  the  service  voluntarily,  tHkes  upon  him- 
aelf  the  hazard  and  dangers  properly  incident  to  the  service  in  which  he  eii- 


^d  by  Google 


HibSTER  AH»  8EBVABT— BI8K  OF  EMPLOTMKHT.        247 

1  no  sensa,  from  tbe  reUtios  the;  siutain  ta 

Mfetj  of  the  emplojee." 

But  whm  the  emploTee  \a  aent  into  dugeroua  plscM  or  put  to  daageroui 
taaka,  of  tbs  riiki  of  which  he  is  igoonuit,  due  c&re  oatheputof  thenuater 
nquirM  that  he  Bh»ll  give  the  emplojea  notice  KDd  put  him  oa  hi*  ffuard. 
SiToboda  «.  Ward,  HO  Uioh.  420;  Hichigan  Cent.  R  e.  Bmithaon,  1  Am.  * 
Sag.  K.  R.  Caa.  101. 

It  the  defect  or  danger  U  inch  aa  la  not  open  to  obeeiration  or  ordinary 
tnapection,  or  in  caae  the  employee,  oa  account  of  immaturity,  or  for  anf 
otMr  reaaon,  ia  knowa  to  be  not  of  aufficienb  c«pacity  or  experience  to  ap- 
preciate the  danger,  or  to  know  bow  to  perform  the  required  aeirice  «nd  f«t 
UToid  the  obriouB  hazard,  the  employer  may  be  held  Uable  for  a  reaulting 
injury.  LouiBville,  etc.,  B,  Co.  e.  Prawley,  38  Am.  &  Eng.  R.  R.  Caa.  808; 
Pittaburgh.  etc.,  R.  Co.  e.  Adanu,  105  Ind.  191;  Sullivan  «.  India  Hannf'g 
Co.,  118  Haaa.  396.  Where  a  aervant,  known  to  be  inexperienced,  ia  aat  to 
work  by  the  railroad  company,  without  being  cautioned,  with  mwihinKT 
known  by  the  company  to  be  unuaualty  dangeroua,  and  by  which  be  is  in- 
jured, the  company  is  liable  for  the  injury  suatained.  Louiarille,  eto.,  R. 
Co.  V.  FVawley,  38  Am.  &  Eng.  R.  R.  Caa.  808. 

Where  the  Berrant  continuea  to  use  a  detective  appUaQoe,  after  dlscorav 
ing  the  danger  of  so  doing,  he  asaumes  the  riak  and  the  maater  ia  not  liabla. 
Had  River,  etc.,  R.  Co.,  v.  Barker,  S  Ohio  St.  S41;  Laning  e.  N.  Y..  etA,, 
R.  Co.,  S9  N,  T.  031;  Davii  v.  Detroit,  etc.,  R.  Co.,  30  Mich.  20S;  Hooper 
a.  Columbia,  etc.,  R.  Co..  31  3.  C,  541 ;  a.  c,  38  Am.  &  Sng.  R.  R.  Caa.  488; 
Chicago,  etc..  R.  Co.  t>.  Hunroe.  85  III.  95. 

Rlaka  Aaaumed  by  Train  Handa. — Train  banda  have  been  held  to  Mnune 
the  riak  of  injury  from  the  following  cauaea:  From  handling  heavy  freight. 
WalBh  «.  8L  Paul,  etc.,  R.  Co.,  3  Atn.  &  Sag.  R.  R.  Caa.  144.  Id  thia  caae, 
the  court  any  that  a  aervaat  engaged  in  handliog  heavy  freight  "muat  lake 
notice  of  the  ordinary  operatioo  of  familiar  laws  of  gravitation,  and  therefore 
muat,  so  far  aa  the  obaerration  of  theae  lawa  is  concerned,  aee  to  it  that  ha 
tofpjgea  in  moving  it  with  help  tufficient  in  number  to  move  it  with  aafo^. 
Tailing  to  do  so  the  riak  ia  bis  own,  and  not  that  of  bia  employer." 

From  falling  into  open  ditches  ruaning  acroaa  ttie  tracks  iMtweot  the  ti6a, 
of  which  they  have  knowledge.    DeForest  •.  Jewett,  8  Am.  &  Eng.  R.  B.  Caa.  • 
49S;  Gibson  e.  The  Erie  R.  Co.,  68  N.  T.  449. 

Prom  the  defective  condition  of  appliancea  in  use  of  whit^  they  bare 
knowledge.  Jackaoa  «.  Kaaaas  City,  etc.,  R..  15  An.  &  Bng.  R.  R  Oh. 
178;  Eaat  Tenneaiae,  etc..  It.  Co.  e.  Smith,  15  lb.  334;  Ballou  e.  ChioMO, 
«tc.,  R  Co.,  6  Am.  &  Eng.  R  R  Caa.  480,  and  note;  O'Rorke  «.  Union  Pa- 
ciBo  R.  Co.,  8  Am.  &  Sng.  R.  R.  Caa.  19,  and  note. 

From  the  roughneea  or  iuequalitiea  of  the  track  of  which  tlwy  have  knowl- 
•dM.     P.  A  R.  R.  Co.  V.  Sctaertle,  97  Pa.  St.  450. 

From  failure  to  erect  fences  along  the  road,  of  wbich  they  have  kvovl- 
edge,  whereby  the  train  is  thrown  o&  the  track  by  trespaaaing  cattle.  Swency 
«.  Cent.  PaciQc  B,  Co.,  57  Col.  16;  a.  c,  8  Am.  &  Bag.  R  R  Caa.  161. 

Prom  the  way  and  manner  in  which  the  aide  tracka  are  uaed  with  the 
knowledge  of  and  without  complaint  from  the  train-man.  Hewitt  •.  Flint 
aodP.  ll.  R  Co.  (Hich.),  84  N.  W.  Rep.  SG9, 

From  coupled  engines  ' '  bucking  "  anow  from  the  track.  Horae  v.  Hinaa- 
^olia,  etc.,  R  Co.,  11  Am.  &  Eng.  R  R  Cas.  168. 

Prom  the  accumulation  of  ice  and  anow  near  the  track.  Fiqn^no  «. 
Ohicago,  etc.,  R  Co.,  13  Am.  &  Eng.  R.  R.  Cas.  310. 

From  catching  their  feet  in  a  frog  at  a  switch.  Lake  Shore,  etc,  R  Oo. 
«.  UcCormick,  74  Ind.  440,  ' 

Prom  sleeping  in  the  round-houae  between  the  at^la  with  the  coaaent  of 


^d  by  Google 


243  WILSON  V.    WINONA   AND  ST,    PETER   K.    CO. 

the  compaoj.  Price  e.  Hanoibal  A  St.  J.  R.  Co.,  77  Ho.  508;  a.  c,  10  Am. 
&  Bag.  It.  R.  Gas.  166. 

Prom  the  eiUtence  of  gnowbankB  in  close  prozimitj  to  the  track.  Dowell 
«.  BurliDgtOD,  etc.,  R.  Co.,  62  Iowa,  630. 

No  rule  of  diligence  requires  railrond  compsnies  to  place  signals  at  snow- 
baaka.     Brown  o.  Chicago,  etc,  R.  Co.  (Iowa),  28  N.  W.  Rep.  487. 

Train  hands  also  talce  the  risk  of  being  knocked  oS  the  top  of  a  freight 
car  by  a  bridge  while  engaged  in  their  occupation  as  brskemen.  Wells  e. 
B.  «.,  etc.,  R.,  56  la.  530;  b.  c,  2  Am.  &  Eng.  R.  R.  Cas.  243;  P.  &  C.  R. 
«.  Sentmajer,  82  Pa.  St.  276;  s.  c.  5  Am.  &  Eng.  R.  R.  Cae.  508;  Clark  o. 
R.  &  D.  R.,  78  Va.  709;  s.  c,  18  Am.  &  Eur.  R.  R.  Cas.  78;  Owen  t.  N.  Y. 
.  Cent.  R.,  1  Lans.  (N.  Y.),  108.  Compare,  B.  &  O.,  etc.,  R.  e.  Rowan,  104 
Ind.  88;  s.  c,  23  Am.  Eog.  R.  R.  Cas.  390. 

They  also  take  the  risk  of  injury  from  the  negligence  of  their  fellow-serr- 
anta.  Randall  d.  B.  &  0.  R.,  109  U.  S.  478;  s.  c,  15  Am.  &  Eng.  R.  R. 
Cas.  243;  Day  c.  T.,  C.  3.  &  D.  R.,  42  Mich.  533;  a.  c,  2  Am.  A  Erg.  B.  R. 
Cbb.  136;  Robinson  e.  H.  &  T.  C.  R.,  48  Tex.  540;  Hunt  v.  C.  *  N.  W.  R., 
26  Iowa,  383;  see  note  to  28  .\m.  &  Eng.  R.  R.  Ca»,  p.  649. 


lei 


upon  him  from  the  tender  of  a  passing     ^ 

up  above  the  top.     Schultz  e.  Chicago,  etc.,  R.  Co.  (Wis.J,  28  Am.  &  Eng. 

R.  R.  Cas.  404. 

Htpair-Toan. — A  repair-man  on  a  hand-car  takes  the  risk  of  being  run  into 
by  an  extra  train  coming  in-  an  opposite  direction  and  without  warning, 
where  be  knows  it  to  be  the  practice  of  the  company  to  run  such  trains  with- 
out  previous  notice.  Penna.  R.  Co.  c.  Wachter,  60  Hd.  395;  s.  c,,  IS  Am. 
A  Bag.  R.  R.  Cas.  187. 

Station  Hand*. — Station  hands  take  the  risk  of  injury  from  throwing  mall- 
bags  into  moving  trains.  Coolbroth  v.  Maine  Cent.  R.  Co.,  21  Am.  &  Eng. 
R  K  Cas.  599. 

Laboren. — Laborers  on  the  railroad,  who  are  repairing  the  track,  take  all 
the  risk  incident  to  the  dilapidated  condition  in  which  the  track  then  is, 
Rochester,  etc.,  R.  Co.  n.  Brick,  98  N.  Y.  211 ;  s.  c,  31  Am.  &  Eng,  R.  R.  Caa. 
60S.  In  this  cose.  Miller,  J.,  said:  "It  may  be  assumed,  we  think,  that  the 
-  deceased,  in  performing  the  services  in  which  he  was  engaged  and  in  travel- 
ling on  the  construction  train,  understood  that  he  was  not  working  upon  a 
road  that  was  finished  and  in  good  repair,  but  upon  one  which,  having  been 
long  neglected  and  but  little  travelled,  and  latterly  only  by  construction 
trains,  subjected  him  to  greater  risks  and  perils  than  would  be  incurred 
under  ordinary  circumstancea.  In  entering  the  defendant's  service  he  as- 
sumed the  hazards  incident  to  the  fame." 

Compara  Madden  o.  H-  &  St.  L.  R.  Co.,  82  Minn.  803;  s.  c,  18  Am.  * 
Eng.  R.  R.  Cas.  03,  where  the  court  said  that  as  defendant  required  plaintiff 
to  use  the  old  track  in  the  work  of  repairing  it,  it  should  have  had  it  reason- 
ably safe  for  that  purpose.  Laborers  also  take  the  risk  of  the  negligent 
movement  of  trains  along  the  road.  Pa.  R.  n.  Wachter,  15  Am.  &  Eng.  R.  It. 
Cas.  187;  P.,  C.  &  St.  L.  R.  e.  Leech,  31  Am.  &,  Eng.  R.  B.  Cas.  541,  note. 

Riskt  not  Aiiumedi — A  section -hand  upon  a  railroad  does  not  take  the  risk 
of  injury  from  using  defective  tools,  which  he  objects  to  using,  but  which 
be  is  ordered  to  use  by  his  superior  officer.  East  Tennessee,  etc.,  R.  Co.  t>. 
Duffield,  13  Lea  (Tenn.),  63;  s.  c,  18  Am.  &  Eng.  R.  R.  Cas.  35;  Qreenleaf 
e.  Dubuque,  etc.,  R.  Co.,  83  Iowa,  52. 

Where  the  servant  has  complained  of  the  defects  in  machinery  or  other 
appliances,  and  is  promised  by  the  proper  officers  of  the  company  that  they 
shall  be  remedied,  and  ia  requested  to  continue  his  work,  his  Bubsequent  usu 
of  thera  for  a  reasonable  time  docs  not  necessarily  make  him  guilty  of  con- 
tributory negligence.    It  is  a  question  for  the  jury.     Conway  «.  Vulcan  kuu 


^d  by  Google 


MASTER  AND   SERVANT— EISK   OF  EMPLOYMENT.         249 

Works,  63  Mo.  SS;  Little  Rock,  etc.,  R.  Co.  o.  DuS;.  4  Am.  &  Bng.  R.  R. 
Cm.  687;  Greene  e.  HiDoeapolis  &  St.  L.  R.  Co.,  15  Am.  &  Bog.  B.  R.  Cas. 
211;  Texas,  etc,  R.  Co.  v.  Kauo,  16  Am.  &  Eug.  R.  O.  Cas.  218,  and  note. 


Flint  ahd  Pebb  Mabqitettb  "R.  Go. 
(Adtxmee  Ca$e,  Michigan.     October  ^^vm.) 

TbeplaintifEwasan  engineer  wbo  bad  been  iDtheemplo;  of  defendaot  for 
roau;  jeara.  In  passing  over  a  portion  of  the  road  which  had  been  bis  route 
for  the  previous  eight  ;earn,  and,  nhile  near  a  flag  station,  bis  engine  collided 
with  a  flat  car,  which  had  bj  some  means  left  the  side  track  at  the  station, 
«nd  ran  down  onto  the  main  line,- and  plaintiff  was  severely  injured.  After 
the  accident  occurred  he  remained  in  the  empio;  of  the  companj  for  over 
two  jeara,  working  only  part  of  the  time  but  drawing  full  pa;.  In  an  action 
against  the  company  to  recover  damages,  it  was  alleged  that  the  defendant 
was  negligeat,  tUcause  the  defendant  left  the  flat  car,  being  without  brakes, 
upon  the  side  track  \  because  there  were  no  stop  blocks  upon  this  side  track 
to  prevent  cars  left  thereon  from  running  out  onto  the  main  track;  because 
Ihere  waa  no  agent  in  charee  of  the  station  to  see  that  the  road  was  kept 
clear  and  free  from  obstructions;  and  because  it  allowed  the  cor  to  get  upon 
the  main  track.  The  plaintiff's  theory  of  tbe  collision  was  that  the  car  had 
been  jostled  by  a  freight  train  which  had  side  tracked  a  short  time  before, 
or  that  it  had  been  started  by  the  wind.  The  contention  of  the  company 
was  that  mischievous  or  malicious  persons  had  moved  it.    Meld: 

1.  That  the  plaintiff  must  be  assumed  to  have  assumed  the  risks  and  dan- 
gers incident  to  the  company's  business,  and  among  these  risks  are  those 
originating  from  tbe  negligent  acts  and  omissions  of  their  fellow  servants  in 
the  employment  of  the  company. 

3.  That  in  Michigan  a  railroad  company  ia  under  no  legal  obligation  to 
maintain  a  staCiou  agent  at  a  flag  station  where  there  is  an  unblocked  siding 
for  the  protection  of  its  employees.  All  that  is  required  of  it  is  that  it  con- 
struct and  equip  its  side  tracks  and  cars,  and  station  its  agents,  in  the  man- 
ner usual  with  well-managed  railroads  and  as  good  railroading  requires. 

8.  That  a  rule  of  the  company's  time-card  in  force  at  the  time,  but  relating 
exclusively  to  the  duty  of  station  agents,  was  inadmissible  on  behalf  of 
plaintiff. 

4.  That  there  being  nothing  to  show  that  the  side  track  was  not  in  proper 
condition,  or  that  the  company  bad  not  observed  ordinary  care  in  placing 
the  car  upon  the  siding,  that  it  was  entitled  to  an  instruction  that  the  omis- 
sion to  provide  the  flat  car  with  brakes,  or  the  side  track  with  stop-blocks, 
was  not  actionable  negligence. 

5.  That  the  defendant  was  entitled  to  an  instruction  that,  "even  though 
the  jury  believe  that  if  the  side  track  at  the  station  had  been  provided  with 
■top-blocks,  the  flat  car  would  not  have  run  out  onto  the  main  track  so  as  to 
obstruct  it,  this  would  not  entitle  the  plaintiff  to  recover." 

6.  That  the  defendant  was  not  entitled  to  the  following  instruction,  "  If 
the  jury  shall  be  in  doubtwhetber  tbe  car  was  caused  to  b«  upon  the  main 


^d  by  Google 


900       HEWITT  V.  TLIWr  AVD  PEKB  MAEQrETTB  B.  00. 


7.  That  the  defendut  wu  entitled  to  the  fbllovhig  initrnetion ;  "Uth» 
jur^  believe  that  motion  wm  imparted  to  the  flat  car  b^  the  freight  train, 
which  IB  shown  to  have  backed  onto  the  side  tracic  that  night,  being  hauled 
out,  and  that  luch  motion  wai  the  cause  of  the  flat  car  being  moved  out  onto- 
the  main  track,  auch  fact  might  establish  negligence  on  the  part  of  the  men 
in  charge  of  the  freight  train ;  but  for  such  negligence  the  pluntiS  cannot 
lecover  against  this  defendant,"  the  negligence  if  any  being  that  of  fellow 
serrants  of  the  plaintifi. 

8.  That  the  defendant  was  entitled  to  the  following  instruction :  "  If  the 
plaintiff  knew,  or  had  eucb  means  of  knowledge  that  it  can  reasonablj  be  said 
that  he  ought  to  have  known,  of  the  hazards  of  tbe  work  upon  which  he  wsa- 
engaged,  as  tbe  business  wasconducted,  and  yetcontinnedin  the  emplojmeDt 
without  complaint,  and  was  injuied  while  so  engaged,  he  cannot  maintain 
an  action  against  the  defendant  therefor,  althougli  there  was  a  safer  wa;  of 
eonduoting  the  business,  nhich,  if  adopWd,  might  have  preveated  the 
tniury^" 

9.  That  the  mere  fact  that  plaintiff  continued  to  accept  pay  at  the  usual: 
Tate,  did  not  of  itaelf,  apart  from  an  agreement  between  the  company  and 
bimaelf  to  that  efiect,  amount  to  an  accord  and  satisfaction,  so  as  to  estop- 
bim  from  suing  tbe  company  for  damages  for  the  injuries  sustained. 

10.  That  the  following  question  asked  tbe  plaintiff  was  too  indeSnite  to- 
be  material,  or  to  admit  of  any  satisfactory  answer ;  "  Recalling  your  atten- 
tion to  the  aide  track  there,  and  supposing  it  to  have  tbe  descent  which  ia- 
represented  by  the  plat  put  in  evidence,  in  case  an  easy-running  flat  car 
was  given  motion  toward  the  south,  and  at  a  point  where  it  was  on  a  de- 
•cenoiog  grade,  how  far,  in  your  opinion,  would  that  cw  run,  if  left  to  ruf 
without  any  obstruction,  to  the  northt" 

11.  That  tbe  fact  that  plaintiff  is  a  man  of  family,  with  whom  be  livai^  it- 
immaterial  and  testimony  to  that  effect  is  not  admisaible. 

The  defendant  company  requested  an  instruction  to  the  effect  tbat  it  had 
a  right  to  leave  a  defective  car  upon  the  side  track  in  the  usual  and  regular 
oourse  of  business,  as  known  to  and  understood  by  its  employees.  The 
oourt  refused  the  request,  and,  in  doing  so,  said ;  **  Is  there  any  tMtimon^  in 
this  case  tbat  shows  that  [the  plaintiff^knew  the  can  upon  the  grade  might 
pass  out  upon  the  main  track  by  the  wind?  etc."  It  waa  part  01  tbe  contea- 
tion  on  the  part  of  the  plaintiff  that  the  force  of  the  wind  had  started  the 
car.  Mdd,  tbat  the  refusal  of  the  reijuest  waa  proper,  hut  that  tbe  refeienc» 
te  the  action  of  the  wind  waa  damaging  error. 

Ebbob  to  oironit  conrt,  Saginaw  coantj ;  CHAiniOKT  H.  Gao% 
Jadge. 

Caee  by  John  A.  Hewitt,  appellee,  against  tbe  Flint  A  Pei« 
Marquette  "R.  Co.,  appellant  to  recover  150,000  damaoeB  for  pei^ 
eonal  iiijnries  sustained  by  liini,  wbile  an  engineer  in  its  employ^ 
by  reason  of  its  alleged  negligence. 

IT.  X,  Weber  (  Wifm^r  dh  Draper  of  cotinBel)  for  appellant. 

Camp  db  Brooks  {Benton  Hanchett  of  connsel)  for  appellM. 

Sherwood,  J. — Tlie  plaintiff  in  tbie  case  resides  at  East  Sa^- 
naw.  He  is  an  engineer,  about  53  years  of  age,  and  for  many 
years  bas  been  in  tlie  employment  of  the  defendant.  On  tbe 
evening  of  April  10, 1883,  lie  was  in  cbai^  of  an  engine  rnnning 


^d  by  Google 


ItASTBB  AND  BBBVAirr — ttlBK  OF  SaiPLOYMEnT.        S6l 

k  panenger  trun  from  Ws;ne  JnnctiOn  to  East  SaginaW  on  tli6 
defendant's  road,  and  this  had  been  his  route  dnring  the  picvioiis 
eighl  jearb.     In  paming  County  Line  Btation  on  tliat  rum.    • 

evening  his  engine  Collided  with  a  flat  car  which  had,  Within  abont 
lialf  an  hnnr  prBrionSj  hj  some  means  left  the  side  track  at  the 
Btation,  and  ran  down  onto  the  main  tine,  and  there  stood,  partly 
bS  the  track,  wlien  the  pl&intifi'a  engine  struck  it.  Sj  tiie  colli- 
^oti  tho  locomotive  Was  throwti  off  the  track,  and  the  plaintiff  was 
permanently  injured.  The  colh'eion  occurred  between  9  and  10 
o'clock  in  the  evening.  After  tlie  accident  ocenrred,  the  plaintiff 
rsidained  in  the  employment  of  the  company,  working  part  of  the 
time  after  be  recDver^  from  the  shock  received  in  the  collision. 
He  regalarly  called  for  and  received  his  montlily  pay  of  |100  until 
October  1, 1886-,  The  sums  paid  from  the  time  lie  was  hnrt  nntil 
he  bronght  tiiis  snit  amounted  to  about  $3,000.  On  the  twenty- 
eeT«ntb  day  of  May,  1886,  this  snit  was  brought  to  recover  for  h!& 
injuries,  basing  his  claim  upon  the  ground  that  the  car  with  which 
liifl  engine  collided  was  on  the  main  track  at  the  time,  through  the 
negligence  of  tlie  defendant  or  its  sei-vante.  The  declaration  set* 
out  the  negligence  claimed  fnlly,  and  states  the  damaged  at  f  50,- 
000,  The  aefei.dant  pleaded  the  general  iesne,  with  notice  that,  if 
plaintiff  liad  any  sneh  claim,  lie  settled  and  compromised  it  with 
defendant  for  the  enni  of  J2,966.67  in  full  eatiefaction  thereof. 
The  cause  was  tried  at  the  last  January  term  of  the  Saginaw  circnit, 
and  resalted  in  a  verdict  and  judgment  for  the  plaintiff  for  the 
mm  of  (33,000.  The  defendant  brings  enor.  Seventy  except 
tionB  alia- relied  upon  to  reverse  the  judgment. 

In  the  <»Hrt  below,  before  tne  jmy,  tiie  plaintiff  submitted  that 
the  defendant  was  liable  for  its  claimed  negli^nce  in  the  premieee 
for  the  following  reasons:  "First.  Becanee  tlie  defendant  left  thift 
fl*t  car,  being  withont  brakes  standitig  upon  this  side  track.  Sec- 
end,  fieeauee  there  were  no  stop-blocks  upon  this  side  track  te 
pi-event  ears  left  thereon  from  running  out  onto  the  main  track. 
Tliii-d,  Became  there  was  no  agent  in  charge  of  the  station  to  eee 
Uiat  the  road  was  kept  dear  and  free  from  obstructions.  Fourth. 
It  was  negligence  upott  the  part  of  the  defendant  to  allow  the  car 
to  get  ont-npon  the  main  track." 

The  defendant's  contention  upon  the  trial  was  that  the  company 
was  guilty  of  no  negligence  in  the  preinisea;  tbnt  its  road,  main 
line,  and  siding  were  properly  constructed,  and  in  good  condition, 
«nd  had  long  been  need ;  that  its  side  track  was  a  safe  and  propef 
place  for  receiving  and  keeping  care  when  not  disturbed  by  tree- 
paBsers;  that  the  engine  and  cars  used  by  the  defendant,  and  the 
flat  ear  with  which  the  collision  occurred,  were  all  sound  and  in 
gwxi  repair :  that  the  duty  which  the  plaiptiff  owed  to  the  defend- 
ant was  only  that  of  master  toward  servant  in  his  capacity  of 
engineer,  and  which  bad  always  been  well  discharged  by  tlie  cora- 


^d  by  Google 


262        HEWITT  V.  PUNT  AND   PEKE  MABQUETTE  E.   CO, 

f>any,  and  tliat  tlie  defendant  approached  tlie  etation  nnder  too 
lijrii  a  rate  of  apeed. 

In  addition  to  tlie  genei-al  verdict,  tlie  jury  mcide  special  findings 
to  tlie  following  qiiestionB:  "(1)  Do  you  find  from  the  evidence 
in  this  case  that  the  flat  car  with  which  plaijitifE  collided  passed 
from  the  eide  track  onto  the  main  track  by  reason  of  motion  im- 
purted  to  it  by  the  special  freight  train  which  backed  onto  the  side 
track  the  night  of  the  accident?  Answei-,  Tes.  (2)  Do  you  find 
from  the  evidence  in  this  case  that  the  flat  car  mentioned  in  tho 
pi'eceding  question  passed  from  the  side  track  to  the  main  line 
track  by  reason  of  motion  imparted  to  it  by  the  wind?  A.  Yes. 
(3)  Do  yoQ  find  from  the  evidence  in  this  case  that  said  flat  car 
was  intentionally  put  upon  the  main  track  by  some  pei-son  or  per- 
sons nnknown, for  the  purpose  of  causing  a  collision?  A.  Ko.  (4) 
If  you  say  no  to  the  foregoing  three  qnestions,  state  what  you  find 
fi'otii  tho  evidence  in  this  cnse  it  was  that  set  the  flat  car  in  mo- 
tion, and  caused  it  to  nin  onto  the  main  track!  No  answer.  (5) 
Do  you  find  from  the  evidence  in  this  case  that  tlie  plaintiff  was 
duly  observing  defendant's  rule  requiring  him  to  observe  care  in 
approaching  stations  [being  rale  84  read  in  evidence]  at  the  time 
lie  collided  with  the  flat  car  J     A.  Tes." 

Tlie  record  contains  all  the  evidence  in  the  ease,  and  conneel  for 
the  defendants  r&\y  upon  all  the  exceptions  taken.  In  the  view  I 
take  of  the  case  as  presented  by  the  learned  counsel  upon  both  sides, 
it  will  be  unnecessary  to  consider  all  of  them.  It  is  unnecessary  now 
to  decide  whether  or  not  the  case  is  a  proper  one  for  the  jury  upon 
its  facts,  if  that  question  alone  were  to  arise,  as  some  wera  improp- 
erly brought  into  this  case,  and  I  think  we  may  very  properly  omit 
the  discussion  of  the  exceptiouB  which  relate  to  the  subject  of 
damages. 

Tlie  principles  of  law  involved  in  the  consideration  ot  the  ques- 
tions raised  are  mainly  those  relating  to  tlie  duty  of  the  company 

^  toward  the  plaintifli  in  tlie  capacity  in  which  he  was 

THmunoiu-  engaged.  Tiiese  have  been  so  frequently  under  con- 
sideration by  this  court  that  a  simple  statement  of  them 
is  all  that  will  be  attempted  on  tliis  occasion.  They  requii-ed  the 
company  to  use  due  care  to  provide  materials^  machmery,  and 
other  means  by  which  the  plaintiff  was  to  perform  the  work  for 
which  he  was  employed,  safe  for  his  nse,  aud  to  keep  them  in  re- 
pair and  in  oi'der,  so  as  not  unnecessarily  to  expose  him  to  danger. 
And  when  the  company  had  done  this,  the  plaintiff  assumed  the 
risks  and  dangers  incident  to  the  company's  business.  Davis  v, 
Railroad  Co.,  20  Midi.  105 ;  Enilway  Co.  v.  Bayfield,  37  Mich. 
205;  Railroad  Co.  v.  Dolan,  32  Mich.  513;  Swobodati.  Ward,  40 
Mich.  420;  Hathaway  v.  Railroad  Co.,  51  Mich.  253,  s.  c,  12  Am. 
&  Eng.  R.  R.  Cas.  249 ;  Hulzega  v.  Lumber  Co..  51  Mich.  272, 16 
K.  W.  Rep.  643;  Minin-  C.  v.  Kirr-.  42  Midi.  34;  Railroad  Co. 


^d  by  Google 


MASTER  AND   SEBVAHT — KISK   OF  EMPLOYMENT,        253 

V.  Smitbaon,  45  Midi.  212 ;  b.  c,  1  Am.  &  Eng.  R  K.  Cas.  101  i 
Raih-oad  Co.  v.  Austin,  40  Midi.  247;  Railroad  Co.  v.  Gilbert,  46 
Midi.  176 ;  s.  c,  2  Am.  &  Eng.  R.  E.  Gas.  230 ;  Smith  v.  Potter, 
46  Midi.  258,8.  c,  2  Am.  &  Eng.  R.  R.  Caa.  140;  Railroad  Co.u 
tiildei-sleeve,  33  Mich.  134;  Railroad  Co.  v.  Taft,  28  Midi.  289; 
JiimeB  V.  Mining  Co.,  So  Midi.  345 ;  Hoar  v.  Merritt,  29  N.  W. 
Rep.  16. 

Included  in  the  risks  aseamed  by  tlie  plaintiff  in  this  case  were 
tliose  originating  from  the  negligent  acts  and  omieaions  of  bis  fel- 
low aervants  in  the  employment  of  the  company.  Railroad  Co.  V. 
Taft,  28  Mich.  298;  Smith  v.  Potter,  46  Mich.  258, 
B.  c,  2  Am.  &  Eng.R.  R.  Cas.  140;  Railroad  Co.  v.  ^u«^S^ 
Leahey,  10  Midi.  199  ;  Greenwald  v.  Railway  Co.,  49  ;S^"  "»: 
Midi.  197,  8.  c,  7  Am.  &  Enp.  R.  R.  Cas.  133;  Rail, 
road  Co.  v.  Gildereleeve,  33  Midi.  133;  Davis  v.  Railroad  Co.,  20 
Midi.  105 ;  Mining  Oo.  v.  Kitte,  42  Midi.  34. 

While  it  was  the  dnty  of  the  company  to  nee  reasonable  care  in 
the  proper  constmction  of  itB  road  and  side  ti-ack,  Btiil,  if  the  side 
tracK  was  not  so  constructed,  and  injury  in  conBcquenco  occnri'ed 
to  the  plaintiff,  when  he  Imd  the  same  or  equal  means  kmowlxdum  or 
of  knowledge  with  the  defendant  of  such  defect,  and  ^^  axSr- 
did  not  protest  against  the  negligence  now  complained  "'■ 
of,  he  ought  not  to  recover.  Riiih'oad  Co.  v.  Gildereleeve,  33  Mich. 
133;  Davis  v.  Riilioad  Co.,  20  Mich.  105;  Railroad  Co.  v.  Dolim, 
32  Midi.  510;  Thomp.  Neg.  1008,  and  casea  cited;  Railroad  Co. 
V.  Barber,  5  Ohio  St.  541. 

County  Line  station  was  at  a  highway  crossing  on  the  county 
line,  and  contained  but  a  few  buildings.  It  was  a  flag  station  only, 
and  the  train  npon  which  the  plaintiff  was  injured  did  not  regu- 
larly stop  at  this  station.  The  side  track  at  this  place  was  about 
2100  feet  in  length.  The  tracks  ran  mainly  north  and  AoDmoBit 
south.  There  are  no  depot  buildings,  or  other  accom-  •'"'^ 
modations  for  paBseugers,  except  a  pliiCform  which  stands  on  the 
east  side  of  the  main  track,  and  the  highway  crossed  the  same  a 
few  feet  north  of  the  siding.  The  side  track  commenced  a  few 
feet  south  of  the  highway  on  the  west  side  of  tlio  main  line,  and  ex- 
tended south  tiie  distance  befoj'c  stated.  This  siding  was  used 
principally  for  the  purpose  of  holding  trains  while  others  pasBcd, 
and  cars  to  be  loaded  with  wood.  The  company  had  a  side  track 
at  County  Line  station  as  early  as  1872.  The  track  and  grading, 
however,  were  changed  in  1882,  and  the  testimony  of  General 
Roadmaster  George  M.  Brown  is  to  the  effect  that  the  rebuilding 
of  the  track  on  the  siding  was  done  under  his  Bupervision,  and  that 
the  track  was  laid  a  foot  and  a  half  below  the  main  track,  mid  that 
the  side  track  in  April,  1883,  and  prior  thereto,  was  in  such  condi- 
tion as  to  make  the  use  of  atep-blocks  unnecessary,  bnt  that  Bince 
that  time  and  prior  to  April,  1886,  the  aide  track  haa  been  raised. 


^d  by  Google 


364        HEWITT  «.    FLINT   ASO   PSBE  HAttaOETTU   B.   00. 

Wid  the  {^1-ftde  macle  noarly  parallel  witli  the  mais  tmok,  WfJ  io 
JLpi-il,  188<3,  it  wRe  from  two  to  sigUt  ioebes  higher  than  it  w«b  ijf 
April,  1863. 

It  ie  not  elaimed  thai,  tbe  ears  or  enginea  fDraisbed  to  the  plains 
tiff  for  aee  were  brokea  or  defective  or  dangerous ;  nor  that  tiu^ 
track  of  the  company  was  broken  or  out  of  repair;  but  it  ie  claims 
«d  that  theside  track  was  dangerous  for  tlie  storage  of  cars  witliont 
brakes  upou  tiiem,  or  stop^locks  to  liold  them  in  place,  aud  keep 
tiiein  from  riinaing  out  ou  tlw  main  track.  It  is  fnrtlier  undiaputed 
that  the  ear  which  left  the  aide  track  was  furnifihcd  with  no  brakes, 
and  the  elding  with  no  stop-blot^,  at  the  time  of  tJie  accident ;  but 
thccar  had  stood  upon  the  siding  about  four  weeks  previous  to  the 
accident,  and  on  one  or  two  occasions  was  moved  backward  and 
forward  by  young  men  and  boys.  It  was  also  claimed  by  the 
plaintiff  that  the  carconld  be  moved  by  tbe  wind,  wliich  was  blow- 
ing the  evening  he  was  injured,  and  also  miglit  have  been  moved 
by  some  force  imparted  to  ir>  by  a  freight  ti-ain  which  ran  in  np- 
-ou  the  siding  about  35  minutes  before  the  collision,  and  there  re- 
mained until  a  train  going  soutii  had  passed,  and  then  drew  ont. 
}fo  one,  however,  siiw  the  freight  train  toucli  or  come  in  contact 
with  the  flat  car  wJiile  the  former  was  npon  the  siding. 

The  I'ccoi'd  discloses  nothing  but  mere  conjecture  how,  and  by 
what  power,  and  in  what  manner,  the  car  was  ran  upon  the  main 
track  and  pluced  in  the  position  it  was  found  when  ttie  plaintifT? 
engine  struck  it.  The  defendant,  however,  without  pretending  to 
any  knowledge  as  to  how  the  car  was  moved  out  on  the  main  line, 
advanced  a  theory  j-eally  quite  as  plausible  upon  the  subject  as  any 
■Uf^ested  by  the  plaintiff,  which  was  that  some  person  or  peimins, 
through  malicious  motives,  took  tliat  occasion  and  such  means  to 
obstruct  tlie  track  on  the  defendant's  main  line,  in  such  manner  as  to 
cause  the  collision  that  occurred,  and  actually  gave  some  testimony 
which  tended  in  that  direction. 

Railroading  has  come  to  be  one  of  the  great  interests  in  this 
eonntry.  It  is  a  business  in  which  many  tliinga  ai-e 
unmuuwT"'  settled  in  conducting  it,  aud  all  are  easilv  nuderetood. 
They  enter  into  good  railroading,  and  make  certain  tlie 
standard  of  duty.  As  an  instanoe,  it  ie  now  well  underetood  how 
tracks  should  be  made,  and  of  what  matei'iul,  and  upon  what  grade, 
to  be  reasonably  safe  ;  and  in  case  the  grade  ie  changed,  wiiat  ap- 
pliances should  be  nsed  to  secure  safety  ;  and  if  these  things  are  all 
-observed  and  done  as  good  railroading  requires,  the  company's  dut^ 
in  tlieee  I'cspects  is  fully  discharged. 

In  this  ease,  it  is  not  contended  but  tlmt  ^e  defendaot  'jfrooBred 

theserviues  of  competent  and  skilful  servants,  eu^oeetip, 

»4iS«S»3E  and  meobanios  in  the  gradiug  and  coostrneticw  of  4(p 

Sb^ow*         tracks  at  that  station,  and  its  teatimouyia  to  the  «fiecf 

^^"^  iiiat  tUertDacke  were  properlyin^de  aufl  qottatnwtod-    It 


^dbyGooglc 


ICASTEB  AND  8EKVANT — SISE  0¥  KUFLOrVKNT,       9Hi 

is  trne,  lbs  contrary  ia  claimed  by  tite  plaintiff,  bnt  the  recon)  eontuM 
no  proof  tosnpport  the  cUim.  It  is  also  claimed  by  tbe  plaintiff  that 
it  was  negligence  not  to  fnrni^li  the  side  ti-ack  with  stop-blocks ; 
that  the  company  omitted  its  dnty  in  that  regard  j  and  that  the 
plaintiff  was  ignorant  of  ancli  omission,  and  therefore  knew  not  of 
tlie  danger,  and  that  it  was  not  his  duty  to  know.  This  may  be  so. 
There  is  nothing  contained  in  the  record  more  than  presumption 
to  the  contrary,  and  it  must  prevail  nntil  overthrown.  Tlie  plain- 
tiff's duty  in  Uie  premises  depended  upon  circumstances.  Railroad 
Co.  V.  Sweet,  45  111.  197 ;  Porter  v.  Railroad  Co.,  60  Mo.  160 ; 
O'Donriell  v.  Railroad  Co.,  59  Pa.  St.  239;  Harrison  v.  Railroad 
Oo.,  31  N.  J.  L\w  293;  Gojieim  u.  Railroad  Co.  3  Cent.  Law  J. 
582;  Mehaa  v.  K^iiroad  Co.,  73  N.  Y.  685. 

Tbe  plaintiff  in  this  case  liad  been  railroading  about  30  years  at 
the  time  he  was  hnrt.  During  that  period  Tie  had  served  as 
fireman,  brakeman,  ba^ageman,  engineer  on  a  freight . 
train,andin  theaame  capacityonapassenger  train.  His  ^^^J^TVin 
■service  for  defendant  commenced  in  1871.  He  was  SiSm^ 
then  an  engineer  of  a  freight  train,  and  in  a  year  tliere- 
«fter  was  transferred  to  an  engine  on  a  passenger  train,  and  ran 
from  Lake  to  Saginaw  for  several  years,  and  was  then  assigned  to 
-dnty  on  the  linel>etween  Wayne  cJnnction  and  £:i8t  Saginaw,  and 
made  this  rnn  every  day  for  the  peiiod  of  abont  eight  years  im- 
mediately previous  to  tlie  time  he  was  hurt,  and  was  then  making 
his  trip  north  from  Wayne  Junction.  He  was  familiar  with  the 
«tation  and  grounds  and  the  siding ;  had  passed  it  twice  a  day  dbring 
tiie  last  eight  of  the  sixteen  years  he  was  in  the  defendant's  em- 
ployment. It  was  a  station  at  which  it  was  his  dnty  to  stop  when 
signalled  for  that  pnrpose,  and  he  was  accustomed  to  stop  his  train 
tliere  more  or  less  every  week.  It  would  seem  that  he  must  have 
been  somewhat  acquainted  with  the  situation  of  the  grounds  and 
the  ordinary  dangei-s,  if  any,  surrounding  them. 

The  platform  ear  which  caused  the  accident  had  stood  npon  the 
track  for  a  month,  and  during  tlie  entire  existence  of  the  eidii^ 
DO  cars  were  shown  ever  to  have  left  it  before  withont  being 
moved  by  the  defendant's  servants-  Those  connected 
with  the  freight  train  which  backed  in  upon  the  ^IS^o'^S^ 
«iding  just  before  the  accident,  say  it  did  not  touch  the  J^cu'  *"' 
■car,  and  tliia  testimony  is  substantially  undisputed. 
The  wind  which  it  is  claimed  moved  the  oar  out  is  shown  to  have 
produced  a  pressure  against  the  end  of  the  car  not  exceeding  39 
pounds,  which  wonld  hardly  be  expected  to  move  a  car  weigning 
■even  tons  on  a  grade  mob  as  this  aiding  was  shown  to  have  Deen. 
Tbisaide  tnu^  had  been  in  cooataDt  we  tor  at  leaet  16  years,  holds 
all  kinds  of  cars,  and  no  case  of  a  car  of  any  kind  gomg  out  by 
force  of  tbs  wind  has  wm  bees  koomi  •!  that  station.  It  also  ap- 
pears, by  tbi  te^monf  loi  •omfietent  and  skilful  engineers  and 


^d  by  Google 


256        HEWITT  V.   PLIKT   AND   PBKB  MARQUETTE   E.    CO, 

mecbanioB  and  railroad  men,  that  upon  this  siding  tliere  was  no  oc- 
casion for  using  stop-blocks,  tliat  tlieir  use  was  accompanied  with 
inconvenience  and  danger,  and  that  good  railroad  mana^ment  dis- 
pensed with  them  when  not  actoallj  necesaarj,  and  tUat  no  neces- 
sity existed  for  tlieir  use  upon  this  siding.  There  is  no  pretence 
but  that  all  tlie  employees  of  tlie  defendant  were  competent, 
skilled,  and  experienced  men. 

These  are  some  of  the  facts  which  the  testimony  in  the  case 
tended  to  establish.  When  the  testimony  was  closed,  counsel  for 
^^^^  the  defendant  snbmitted  21  reqnests  to  charge;  19 
oiTiN  UD  u-  of  which,  it  is  alleged,  the  court  refused  to  give,  and  to 
'""^  each  of  these  refusals  exceptions  were  taken. 

Tlie  first  request  asked  that  the  court  direct  the  verdict  for  de- 
fendant. This  was  properly  overruled,  under  the  view  the  cir- 
cuit: judge  took  of  the  law,  and  there  is  no  occasion  to  say  more  of 
this  rnling. 

Tlie  second  is  in  substance  the  same  as  the  first,  except  the 
pleadings  are  not  inoFuded  in  the  proposition, and  needs  uofnrtlier 
consideration. 

Tlie  third  relates  to  the  testimony  on  the  subiect  of  accord  and 
satisfaction,  and  was  ruled' correctly.  I  do  not  tliink  the  testimony 
tends  to  show  that  snch  a  disposition  of  the  plaintiff's  claim  was 
ever  agreed  upon  or  understood  by  the  parties  in  wliat  they  did 
and  said. 

Tlie  fourth  and  fifth  reqaests  relate  to  tlie  same  subject,  and  I 
find  no  errors  in  what  tlie  conrt  said  about  those. 

Tiic  defendant's  seventh  reqncst  was  given  in  substance  by  the 
court. 

The  defendant's  ninth  request,  as  modified  by  the  conrt  and  civ- 
en,  is  as  follows:  "It'was  not  the  legal  duty  of  the  defendant 
towaivls  this  plaintiff  to  provide  its  side  tracks  at  the  County  Line 
station  with  stop-blocks,  and  its  omission  to  do  so  was  not  actionable 
negligence."  The  modification  is:  "Now,  it  is  true,  gentlemen 
of  the  jury,  that  tiie  law  does  not  require  a  railway  corpoi-ation  to 
adopt  any  particular  plan  or  device.  They  were  obliged,  if  yon 
find  that  this  track  was  in  sucli  condition  that  the  fiat  car  was  liable 
to  get  out  upon  the  main  track  in  the  use  of  the  ti-ack,  to  exercise 
ordin.iry  care — such  care  as  a  prudent  man  in  the  management  of 
his  business  would  exercise — to  prevent  it.  It  is  left  to  them  to 
say  what  they  should  do,  but  the  law  requires  them  todosomething 
in  that  regard.  It  may  not  require  them  to  use  a  stop-block,  if 
they  could  accomplish  the  same  object  by  some  other  means, — by 
the  employment  of  a  watchman,  or  by  blocking  the  car,  or  in  some 
other  way  tiiat  would  be  sufficient, — but  they  are  obliged  to  nee 
some  means  to  prevent  it." 

The  defendant's  counsel  claina  that  they  were  entitled  to  have 
tliQ  n'qucRt  ^iven  without  the  modification.     In  this  they  were 


^d  by  Google 


MASTER  AHD  SEEVAlTI^KlSK   OP  ^EMPEOYMEirr.        257 

correct.  There  is  no  testimony  in  tlie  ease  tending  to  show  that 
the  track  was  not  in  proper  condition,  or  in  such  condition  that,  in 
the  use  made  of  it  by  the  defendant,  exeiciaing  ordinary  care,  a 
flat  car  standing  upon  the  siding  was  in  danger  of  coming  out 
upon  the  main  line.  There  is  no  testimony  tending  to  show  that 
ordinary  care  was  not  observed  by  the  defendant  in  placing  the 
car  wliere  it  did  upon  its  siding,  and  which  it  had  been  accastomed 
to  do,  witli  an  experience  of  safety,  for  more  tlian  sixteen  years. 
And  the  claim  that  the  car  was  liable  to  get  ont  on  the  main  line 
by  reason  of  any  pecniiar  construction  or  condition  of  the  track 
was  improperly  left  to  the  jnry,  for  them  to  infer  negligence  on 
tlie  part  of  the  defendant  under  the  facts  as  they  appear  in  this 
record.  Negligence,  when  relied  upon,  must  be  proven.  It  may 
be  inferred  from  facts  proved,  but  never  from  mere  conjecture. 

Tiie  defendant's  tenth  request  was  refused.  It  should  have 
been  given.  It  is  as  follows:  "Even  though  the  jury  believe  that, 
if  the  side-track  at  tlie  County  Line  station  had  been  provided  with 
stop-blocks,  the  flat  car  would  not  have  run  out  on  to  the  main  track 
so  as  to  obstruct  it,  this  would  not  entitle  the  plaintiff  to  recover." 
It  is  not  a  question  here  whether  the  defendants  made  the  best  track 
for  its  siding,  or  used  the  best  means  and  appliances  in  conducting 
its  business.  Kaib-oad  Co.  v.  Gitdersleeve,  33  Mich.  133 ;  Rallroaa 
Co.  V.  Bisliop,  50  Ga.  465;  McCiintock  v.  Curd,  32  Mo.  411. 
The  test  of  liability  is  not  whether  the  company  in  this  case  omit- 
ted to  do  something  it  could  have  done,  and  which  would  have 
prevented  the  injury,  but  whether  it  did  anything,  or  omitted  to  , 
do  anytliing,  which  under  the  circumstances,  in  the  exercise  of  or- 
dinary care  and  prudence,  it  ought  to  have  done,  and  from  which 
the  injury  to  ttie  phiintifE  proceeded.  Leonard  v.  Collins,  70 
N.  T.  90;  Railroad  Co.  v.  Love,  10  Ind.  554;  Thomp.  Neg.  982, 
983,  and  cases  cited.  I  think  the  court  erred  in  excluding  the 
tenth  request  from  his  charge.  It  was  quite  proper  to  be  given 
iu  tiie  case  sought  to  be  made  under  the  testimony. 

Tiie  eleventh  request  was  made  as  follows;  "The  defendant  is 
tinder  no  legal  obligation  to  maintain  station  agents  at  flag  stations 
for  the  protaction  of  its  employees."  The  court  gave  this  request, 
and  then  said :  "This  is  true  as  an  abstract  proposition.  Bnt  if 
they  do  not  have  a  station  agent  at  a  flag  station  to  look  after  the 
switches  and  lights,  and  the  i-nnning  of  cars  upon  the  side  track, 
provided  the  side  track  is  dangerous  in  its  character,  they  must 
adopt  some  other  means."  The  request  was  right,  but  the  statement 
of  the  cireuit  judge  in  connection  with  it  is  erroneous.  Substan- 
tially, the  jury  was  informed  that  tlie  request  had  nothing  to  do 
with  the  case ;  that  because  of  the  correctness  of  the  defendant's 
legal  proposition  contained  iu  the  request  the  company  sliould 
have  done  something;  and  again  submitted  to  them  the  safety  of 
the  defendant's  track  to  pass  upon.  This,  as  we  have  before  said, 
81  A.  ft  E.  R  Cat.— 17 


^d  by  Google 


368       HBWUT  V.  f^INT  AKO  PKRE  UAAQDEirrE  S.  CO. 

flhonl  J  not  have  been  done.  All  tlmt  tbe  law  required  was  that 
tlio  defeiidant  shoald  conetrnct  and  "  equip  its  side  tracks  and  cars, 
and  station  its  agents,  in  tlie  munuer  nsnJ  with  well-managed  rail- 
roads, and  as  good  railroading  reqnired."  Kailroad  Co.  v.  Gilder- 
sleeve,  38  iiich.  133;  McG-innis  v.  bridge  Co.,  49  Alicli.  466; 
Richards  v.  Oougli,  53  Mich.  212 ;  Sjogren  v.  Ball,  53  Midi.  274,; 
Batterson  v.  Railway  Co.,  53  Midi.  125;  Railway  Co.  v.  Londer- 
gan,  28  Am.  &  £ng  R.  R.  Cas.  491.  Tbe  defendant  in  this  case, 
when  it  took  the  plaintiff  into  its  employment,  did  not  warrant  the 
safety  of  its  track,  nor  the  sufficiency  of  its  machinery  and  appH- 
ancsB,  nor  the  competency  of  its  other  serTants.  It  did  not  ioBiire 
the  plaintiff  againet  the  insuffioiency  of  the  one,  or  the  incompe- 
tency of  the  other,  and  it  owes  no  duty  to  the  plaintiff  beyond  that 
of  reasonable  or  ordinary  care.     See  anthoritiee  before  cited. 

The  defendant's  twelfth  request '  i-elutes  to  the  fact  of  whether 
or. not  the  defendant  had  a  station  agent  at  County  Line  station 
when  the  accident  occurred,  and  was  propei'ly  omitted. 

The  giving  of  the  defendant's  thirteenth  rcqnest  with  the  com- 
ment' uiereon  was  error,  for  the  reasons  given  in  considering  the 
elevaiith  request.  The  reqnest  is  as  follows:  "The  defendant  did 
not  owe  Uiis  plaintiff  the  legal  duty  to  provide  its  flat  care  which 
it  left  standing  npon  tliat  side  track  with  brakes ;  and,  even  if  you 
shoold  iind  from  the  evidenoe  that  tlie  flat  car  had  no  brakes  at  the 
ttme-of -the  injury,  this  does  not  establisii  the  negligence  alleged 
in  tfaat.regard  against  the  defendant,  nor  entitle  the  plaintiff  to  re- 
oover."  It  states  a  dear  proposition  of  law  based  upon  the  facts 
in  thefaiQ,  and  should  have  been  given  withont  qualification. 

The  defendant's  fourteenth  request '  relates  to  its  right  to  have 
broken  can  i^pon  its  side  track  in  -course  of  its  regnlai*  businera, 
and  !it8  liability  in  case  of  accident  to  a  servant  from  that  cause 
who  -had  notice.  Tiiere  was  no  error  in  the  refusal  to  give  it. 
There  ie,  however,  in  the  remark  of  the  court  in  relation  to  it,  dam- 

ng  error.  In  these  the  court  says :  "  Is  there  any  testimony  in 
that  shows  that  Mr.  Hewitt  knew  of  the  grade  of  this 

'  (19)  The  uncontradicted  evidenoe  in  this  oaie  shows  that  the  defendant 
had  a  station  ag«nt  at  the  Connt^  Line  station  at  the  time  ot  the  accident. 

'  Now,  as  an  abstract  proposition,  that  ma;  be  true,  We  cannot  saj  that 
thej  should  have  brakes,  if  they  provide  other  means  in  the  use  of  its  track 
to  prevent  cars  from  pssBing  onto  tbe  main  track;  piovided,  of  conrse,  that 
you  find  the  side  track  waB  bo  constructed  as  to  render  its  use  daneerons. 
The  claim  in  this  case  is  that  no  means  at  all  were  provided;  and  the  evi. 
dence  with  regard  to  the  use  of  stop-blocks  and  brakes,  and  the  duties  of  a 
station  agent,  indicates  that  such  means  were  employed  at  some  places  to 
accomplish  the  object  of  rendering  the  main  track  safe. 

'  In  law,  the  defendant  had  a  right  to  leave  cars  upon  its  side  tracks,  even 
-though  they  were  defective  or  partially  broken,  and  in  accordance  with  its 
usual  and  regular  course  of  businesa;  and  if  accident  happened  by  reason 
tiiereof  to  employee,  knowing,  or  having  opportunity  to  know,  the  regnLar 
coune  of  busiaeas,  such  employee  cannot  recover  by  reason  thereof. 


i 


^d  by  Google 


KASTSIB  AND  SBBVASTT — BISK  OF  BHFLOTHSlIff.        9fi9 

track,  or  tliAt  he  knew  the  oare  npon  it  might  paas  out  upon  the 
iDain  track  by  tlie  wind,  or  by  meddleeonieiiess  gf  boys,  or  by 
traiiu  baoking  in }"  This  coatainB  a  Baggestion  that  this  car  might 
■or  wae  taken  oot  by  the  wind,  or  cither  aEsmnes  the  fact  it  miglit 
have  been  done,  which  was  not  conceded  in  the  case.  A  eogges- 
tion  or  oonjectDTQ  of  this  kind  is  often  most  miBchievoos  in  tlie 
trittl  of  caiiBOB  of  this  ohaiacter  before  a  jury,  and  ought  not  to  be 
made.  Jurors  are  very  apt  in  seizing  npon  Buch  suggestions  and 
conjectures,  and  acting  niider  tlie  feeling  of  sympathy,  not  unfi-u- 
^nently  gener^ited  npon  the  trial,  for  the  plaintiff  in  this  class  ui 
cases,  and  making  them  controlling  elements  in  their  verdict. 

The  following  is  the  defendant's  fifteenth  request,  which  wae  lu- 
fosed  by  the  court,  together  with  his  reasons  for  such  rafusal :  '*  If 
the  jary  l>elieve  that  motion  was  imparted  to  the  flat  car  by  tlie 
freiglit  train,  which  isaliowu  to  have  backed  onto  the  side  tnok 
thai  night,  being  hauled  out,  and  that  such  motion  was  the  eaow 
<rf  the  flat  car  moving  ont  onto  the  main  track,  such  facts  miglit 
establish  nHgligenco  on  the  part  of  the  men  in  charge  of  the  freight 
tnin  ;  but  tor  snch  negligence  the  plaintiff  cannot  recover  gainst 
this  defendant."  Buasons:  "Tliat  request  I  do  not  think  the  evi- 
dence w:irrants  the  court  in  charging  the  jury  as  correct  in  this 
case.  The  only  party  tliat  was  on  tlie  freiglit  train  that  has  testi- 
fled  in  this  cose  was  a  brakeman.  You  will  remember  his  testi- 
mony. If  I  remember  it  right,  he  claitnB  tiiat  he  saw  the  flat  car 
after  his  train  iiad  backed  in  on  the  switch  at  the  end  of  the  train, 
a  half  a  length  of  a  car  from  it,  and  not  at  any  otiier  point.  Now, 
if  it  were  truo  thut  that  train  cangiit  on  tliie  car  in  going  out,  and 
that  tite  parties  knew  it,  and  failed  to  block  it  or  protect  it  in  any 
way,  tliat  would  be  negligence  on  their  part, — negligence  on  the 
part  of  tliose  who  were  operating  the  train, — ana  would  be  the 
negligence  of  a  fellow-employee  of  the  plaintiff,  and  the  company 
would  not  l>e  responsible  for  that.  If  it  followed  ont  on  acconnt 
of  die  chai-acter  and  conBtmction  of  t)ie  side  track,  and  was  un- 
known to  them,  and  they  did  not  know  in  the  darkness  that  it  was 
following  them,  why,  of  course,  they  could  not  be  held  responsible 
for  negligence  in  not  knowing  it." 

I  think  the  request  states  a  very  plain  proposition  of  law.  It 
was  entirely  proper  that  it  Bhonid  have  been  given.  It  was  part  of 
the  plaintiff's  chiiin,  or  rather  his  tlmory,  that  tiie  fi-eight  ciir  got 
ont  in  that  way,  and  tiie  jury  found,  in  answer  to  one  of  the  Bjiecial 
requests,  that  the  c;n-  came  out  by  i-eason  of  motion  imparted  to  it 
by  the  freight  train  which  backed  in  on  the  side  track  tlie  night  of 
the  accident.  Ileidly,  the  court  had  assumed,  in  what  he  said  re- 
lating to  the  fourteenth  request,  tiiat  the  car  might  have  come  out 
from  snch  cause;  and  askod  tho  question,  did  the  plaintiff  know 
that  facti  and  further  submitted  the  oneBtion  of  the  cars  coming 
out  by  reason  of  the  freight  train  backing  in,  as  follows:  "Now, 


iiz^dbvCoO^lc 


260        HEWITT  V.   FLINT  AVJ>  PEKE  MABQUETTE  B.   CO. 

the  firet  qiiestioD  of  fact  for  jon  to  consider  is  the  conetraction  of 
this  side  track.  How  was  it  coiiBtructed,  and  wlien  ^as  it  con- 
strncted}  Was  it  constructed  in  snch  a  manner,  and  with  such  a 
grade,  tliat  a  car  standing  upon  that  track  waa  liable  to  go  upon 
flie  main  track  by  force  of  the  wind  that  might  occnr  there,  or  by 
tlie  carelessness  of  boys,  or  in  the  opei'ation  of  a  train  backing  into 
the  switch?"  Tlie  defendant's  request  should  have  been  given 
without  quahfication. 

Tlie  court  declined  to  gire  tlie  defendant's  sixteenth  request^ 
which  is  as  follows :  "  A  railroad  company  is  not  bound  to  cliange 
its  manner  of  using  its  side  ti-acks,  nor  to  adopt  the  most  approved 
ways  or  appliances  in  business.  And  if  one  of  its  servants,  know- 
ing^  or  liaving  ample  means  of  knowing  from  long-continued  em- 
ployment, the  way  and  manner  in  wliich  the  side  ti'acks  are  used, 
continues  in  the  employment  without  complaint,  and  if  from  such 
way  and  manner  is  subjected  to  risks  of  accident,  he  is  presumed 
to  assume  snch  risks,  and,  if  injured  thereby,  cannot  i-ecover.'*" 
Tliia  request  should  have  been  given.  It  states  tlie  rule  correctly. 
Ladd  V.  Raihoad  Co.,  119  Mass.  412;  Gibson  v.  Railroad  Co.,  63 
N.  Y.  449;  Lovejoy  v.  Railroad  Co.,  125  Mass.  79:  s.  c,  1  Am. 
&  Eng.  R.  R.  Gas.  613 ;  De  Forest  v.  Jewett,  88  N.  Y.  264 ;  b.  c, 
8  Am.  &  Eng.  R.  R.  Cas.  495;  Smith  v.  Railway  Co.,  33  Amer. 
Hop.  484 ;  Sullivan  v.  Man ufactu ring  Co.,  113  Mass.  398 ;  Flem- 
ing^v.  Raih-oad  Co.,  6  N.  W.  Rep.  448. 

The  seventeenth  request  is:  "It  appears  from  the  uncontra- 
dicted testimony  in  tliis  case,  introduced  by  the  plaintiff,  that  for 
a  long  time  prior  to  April  10, 1883,  it  was  the  custom  of  defendant 
to  use  many  of  its  side  tracks,  iiiclnding  this  one  !it  County  Lino 
station,  without  stop-blocks,  and  to  leave  cars  staiiding  thereon 
when  not  in  use.  If  such  custom  was  dangerous,  and  liable  to 
result  in  snch  cars  coming  out  upon  the  main  track,  and  to  cause 
collisions,  such  danger  and  liability  were  as  well  known  to  plaintiff 
as  to  any  officer  of  defendant;  and  the  plaintiff,  having  continued 
in  tl)c  employment  of  the  defendant  without  complaint,  is  pre- 
sumed to  have  voluntarily  assumed  the  risks  of  accident  from  such 
cause." 

In  place  of  the  last  two  reqnests,  the  court  said  to  the  jury  :  "  I 
might  say  here,  gentlemen  of  tlie  jury,  that  tlie  plaintiff^  must  bo 
held  as  knowing  all  tiiat  has  been  testified  to  in  this  case;  that  he 
knew  with  regard  to  t!ie  operations  of  the  defendant,  with  regard 
to  this  track,  and  the  man.ngcment  of  the  station,  and  also  what  he 
would  learn  or  observe  as  an  experienced  engineer  in  running  over 
the  road,  and  such  observation  as  he  could  have  made  of  this  side 
track  in  operating  an  engine  on  the  main  track,  or  in  going  in  upoi> 
the  side  track  himself,  if  he  did  go  in." 

The  charge  given  leaves  out  what  the  plaintiff  was  presumed  to 
Imow,  and  what  it  was  his  duty  to  know,  and  was  erroneous  for 


^d  by  Google 


MA8TBB  AND   SBBVANT— RISK   OF   EMPLOTMERT.        201 

tbat  reason.  The  cliai-ge  requested  in  both  the  laBt-nnmbered  re- 
qneEts  ought  to  have  been  given.  They  were  both  fully  supported 
by  the  decisioTis  of  this  court.  Eaili-oad  v.  Lealiey,  10  Micli.  193; 
Diivia  V.  Railroad  Co.,  20  Midi.  105  ;  Hathawiiy  v.  Kuilroad  Co., 
51  Midi.  253,  fl.  c,  12  Am.  &  Eng.  B.  B.  Cas.  249;  Austin  v. 
Riilroad  Co..  40  Mich.  247 ;  Pigudgno  v.  Railroad  Co.,  52  Mich. 
40;  8.  c,  12  Am.  &  Eng.  R.  R.  Cas.  210;  Richards  v.  Rongli,  53 
Midi.  212;  McGimiis  «.  Bridge  Co.,  49  Midi.  466;  Lyou  v.  Rail- 
i-oad  Co.,  31  Mich.  429;  and  other  Michigau  cases  hereitihefore 
died. 

The  courts  should  have  given  the  defendant's  eigliteentli  re- 
quest.' It  \vi\s  refused.  It  stated  only  an  elementary  rule  upon 
tlie  subject  to  which  it  relates,  and  Tvas  warrauted  by  testimony  in 
tho  case. 

I  think  no  error  was  committed  in  refnsing  the  twentieth  re-. 
quest;*  and  the  subject  of  the  twenty  fii-st,'  as  I  have  hei-eiu before 
said,  it  is  unnecessary  to  consider. 

This  disposes  of  tiXCC])tions  to  the  refusals  to  charge. 

Inasmuch  as  a  new  trial  must  be  had  in  the  case,  it  is  unoeces- 
fiary  to  determine  whether  or  not  the  court's  charge  upon  his  own 
motion  was  correct  in  those  parts  excepted  to  in  tiie  defendant's 
forty-sixth,  forty -seventh,  forty-eight,  and  forty-ninth  assignments 
of  error,  for,  if  erroneous,  the  errors  will  not  be  likely  to  recnr  on 
a  new  trial.     I  find  no  error  nndur  the  forty-ninth*  or  fiftieth*  as- 

'(18)  If  the  plumtiS  knew  or  had  such  meaDB  of  knowledge  that  it  can 
reasODabljr  be  said  that  be  ou^ht  to  have  known  of  the  hazards  of  the  work 
upon  which  he  was  engaged,  as  ihe  busineea  was  conducted,  and  yet  con- 
tinued in  the  employment  without  complaint,  and  was  injured  while  st  en- 
gaged, he  cannon  maintain  au  ai,tion  agninst  the  defendant  therefor,  although 
there  was  a  safer  way  oi  conducting  the  busiuesB,  which,  if  adopted,  might 
have  prevented  the  injury. 

'(20)  If  the  jury  ^liall  be  in  doubt  whether  the  car  waa  caused  to  be  upon 
the  main  track  by  the  malicious  act  of  a  person  or  persons,  or  how  otherwise, 
the  plaintiff  cannot  recover. 

*(21)  The  plaintiS  being  in  charge  of  the  train,  being  of  large  ezpenenca 
on  this  and  other  railroads,  being  ^rqiliar  with  the  uituation  at  County  Line 
station,  having  been  running  by  it  nlmoat  daily  for  several  years,  and  being 
instructed  by  the  rules  of  the  company  to  use  care  and  caution,  and  in  cases 
of  doubt  to  take  the  safe  side,  was  alone  responsible  for  the  rate  of  speed  of 
bis  train  at  the  time  of  the  collision,  and  if  the  jury  And  that  had  he  ap- 

Sroached  the  station  at  a  less  rate  of  speed,  and  been  as  watchful  as  was  his 
uty.  the  injury  could  have  been  avoided,  he  cannot  recover. 
*(49)  The  circuit  judge  erred  in  charging  the  jury  as  to  the  observance  of 
the  rules  by  the  plaintitf,  and  his  reference  to  rule  81,  and  his  statement  of 
what  the  evidence  showed  as  to  switch  lights,  and  that  the  testimony  showed 
the  switch-lights  were  in  place  as  the  plalntiEE  with  his  train  whs  approach* 
ing,  and  indicated  do  danger,  as  stated  in  the  bill  of  exceptions,  as  follows: 
"Tliese  rules  that  were  read  to  you,  the  plaintifF,  in  the  management  of  his 
train,  was  bound  to  observe.  In  reading  rule  number  84,  tho  evidence  in 
tuis  case  is  that,  as  he  reached  the  station,  it  is  undisputed  the  lights  upon 
the  main  track  (the  switch -lights)  were  in  place,  and  indicated  nu  danger." 
'(SO)  The  circuit  judge  erred  in  cli&rging  the  jury  as  to  the  duty  of  ths 


^d  by  Google 


9R         HXWITl-  e.    FLIHT  AHD   YSBS  KAKf^TKITV  B.    0D. 

■gastSBta  at  error.  The  cliai^  referred  to  In  the  fifty-first  tsi 
in  \he  fifty-second  anignmants  have  been  aufficiently  coneidered!. 
I  may  gay,  however,  it  was  the  duty  of  the  engineer  to  know  the 
dodes  of  a  etatioQ  agent  along  Uio  line  of  the  road  he  was  rnnning 
upon,  BO  far  as  they  related  to  tlie  proper  discbarge  of  the  en- 
gineer's duty,  and  any  tnatruction  to  the  contrary  would  l>e 
erroDeooBt 

Tlie  sixty-second  assignment  of  error  contains  onesnbiect  i-egnir- 
ing  further  notice.  Tlie  circuit  judge  charged,  in  speaking  of  the 
etreleseiiees  of  the  fellow-aervauts  wlio  bacKed  a  freight  train  in 
upon  the  side  ti-ack  just  before  the  collision  occurred,  that  if  the 
flat  car  "  followed  out  on  account  of  the  character  and  constrnctioD 
of  tbe  aide  track,  and  was  unknown  to  them,  and  they  did  not 
know  in  the  darkness  that  it  was  following  tliem,  why,  of  conrsGr 
tliey  conld  not  bo  held  responsible  for  negligence  in  not  knowing 
it."  If  by  this  it  was  intended  to  convey,  as  I  suppose  it  was,  tlie 
idea  that  tbe  servants  on  the  freight  train  were  not  negligent  in 
not  making  tbe  train  secure  if  they  did  not  know  it  was  following 
tiiem,  tlien  tbe  instruction  was  error.  Negligence  in  a  servant 
may  condet,  and  often  does,  in  failing  to  know  as  well  as  in  failing 
to  do.  And  such  is  always  tbe  case  where  it  is  the  duty  of  the 
servant  to  inform  himself,  and  to  know,  and,  under  tne  facta 
stated,  audi  would  Iiave  been  tbe  daty  of  the  servants  npon  tho 
freigbt  train. 

I  Bee  no  occasion  to  aay  anything  further  in  relation  to  the 
(di&rge  as  given  upon  the  court's  own  motion,  or  aa  to  the  request* 
to  charge. 

I  do  not  tliink  it  was  proper  to  allow  the  jury  to  take  to  their 
jary-room  sncli  of  the  defendant's  requests  as  were  marked  by 
tlie  court  "Given."  The  jury  must  receive  tbe  law  and  tbe  tes- 
timony in  open  court ;  and  I  know  of  no  practice  wliich  will 
allow  tliese,  or  iiny  part  thereof,  or  any  papei'S  used  in  the  case,  to 
be  taken  to  the  jury-iooin,  against  tbe  consent  of  the  parties^or 
either  of  them,  except  it  may  be  items  of  an  account. 

defendaDt  to  provide  a  nfe  road  for  tfae  pluotiff,  and  to  provide  afraiort 
danger  in  the  operation  of  its  aide  tracks,  aad  to  the  inBtruotion  tbat  it  was 
tbe  duty  of  the  defendant  to  provide  its  side  tractt  in  such  manner  as  an 
ordinarily  prudent  person  would  provide  it  for  the  safety  of  his  employees, 
as  stated  in  the  bill  of  exeeptiona,  BS  followH:  "  In  this  esse  it  waa  the  duty 
ol  the  defendant  to  provide  its  road  in  a  reaaonably  aafe  conditioo  for  thv 
plaintifi's  use  in  working  for  the  defendant  aa  an  engineer,  in  running  pass- 
enger trains  over  the  road  by  dsy  and  night,  at  tbe  rate  of  speed  which  the 
SlaiotiS  by  bia  employment  was  required  to  run.  It  waa  also  the  duty  of  tbe 
e  fend  ant  to  provide  agninit  such  dangers  to  the  safety  of  tbe  use  of  Its 
Bain  road,  in  tbe  operation  of  its  aide  tracks  connected  tberewith,  as  a  rea- 
sonable man,  acting  with  ordinary  prudence  in  that  buaineae  would  provide 
against" 


^d  by  Google 


ABU-  SKBTASnv-BieK  OF  mCPLOTWBVT.       36S 

I  <it>  not  considffl*  the  ungnment  that  the  verdict  ie  exoomvo, 
'M\tera  ia  no  aoeasioii  to  pasB-upon  that  queatioa' on  this  reoord. 

Twanty-aix  oxceptioDB  are  relied  upon  to  the  rulings  of  the  ooiut 
br  taking*  tiie  teatitnony. 

The  eighth  aeBigntuent  relates  to  the  introdaction,  br  plaiotifi, 
of  rule  25  of  defendant's  time-card  in  force  when  the  plaintiff  rs- 
oeiwed'hiainjarj,  and  which  relates  exclusively  to  the  duty  of  st^ 
tion  agenta.  The  objection  was  well  taken,  and  the  testimony 
eiToaeonsIy-  admitted.  The  proof  was,  so  far  as  the  testitnonr 
tended  to  show  anytiiing  upon  the  subject,  that  there  was  no  soon 
agent  at  Comity  Line  station. 

The  following  question  was  propounded  to  the  plaintiff  when  he 
was  being  examined  as  a  witness  tor  himself  by  Ins  connsel ;  *'Be- 
callingyour  attention  to  the  aide  track  there,  and  supposing  it  to 
luTddie  deaoant  which  is  represented  by  the  plat  put  in  evidence, 
iacnse  an  eavy-cnnningflat  car  was  given  motion  toward  the  south 
end,  at  appoint  whera  it  was  on  a  descending  grade,  how  far,  in 
your  opinion,  would,  that  car  run,  if  left  to  run  without  any  obetrac- 
tien,  towarde  the  north!"  The  objection  was  incompetency  and 
innnateriaiity,  and  it  should  have  been  snstained.  The  question  is 
too  indefinite  to  be  material  or  to  admit  of  any  satisfactory  answer. 

There  ia  but  one  other  exception  needing  attention.  I  find  no 
error  in  tlie  remainiiig  assignments  relating  to  taking  the  testimony. 
When  the  plaintifE  was  upon  tlie  stand,  hie  connsel  asked  him  the 
following  qneitionS';  "Have  you  a  family?"  "Do  you  reude 
witii  your  ramiiy  at  home}"  The  objection  to  these  qnestiona  was 
ioHnirteriality.  The  wftneae  answered,  "  Yes,  sir,"  to  each  ques- 
tion. Jt:i8  claimed  by  plaintiff's  counsel  these  questions  were  not 
aabed  for  the  purpose  oi  exciting,  nor  did  they  tend  to  excite  sym- 
pathy, bat  were  asked  for  the  purpose  of  showing  what  manner  of 
man  the  plaintiff  was,  in  order  to  give  him  credit  and  cbaractor 
before  l^e  jury  as  a  witness,  and  aliow  that  he  was  a  "settled,  stable 
oitDen ;"  tliat  he  was  a  man  of  character,  and  known  in  the  com- 
monity.  The  testimony  was  immaterial,  but  not  sufficient  to  pm- 
dnce  any  prejudicial  erL-or,  and  the  judgment  eoold  not  be  rerened 
Iberefor. 

The  other  aisigDmento  of  error  are  not  passed  apou,  but  for 
tdiose  discussed  the  joc^ment  must  be  reversed,  and  a  new  tdcl 
granted. 

Oahpbjell,  C.  J.,  and  Cbamplih,  J.  concurred. 

HossB,  J. — In  this  case,  while  I  agree  in  the  reversal  of  the 
judgment  for  errors  pointed  out  in  the  opinion  of  Mr,  Justice 
Shxbwood,  which  errors  it  is  not  necessary  for  me  here  to  particular- 


opinion, 
not  concur. 


ize,  I  cannot  assent  to  all  tlie  propositions  laid  down  by  him  in  saoh 
opinion.    I  shall  state  briefly  acme  of  the  points  in  which  I  can- 
by  GoOglc 


264        HEWITT  V.    FLINT  AND  PERE  MABQUETTE   B.    CO. 

In  relation  to  the  duiigerotts  cliaracter  of  the  side  track,  in  mj 
opinion,  it  was  competent  for  tlie  jqi-y  to  determine  whether  or 
not,  under  all  the  circumstances,  etop-blocks  were  neeessiii')'  tognard 
against  just  bucIi  accidents  as  this,  and,  if  snch  blocke  were  necee- 
6ary,  it  was  the  dnty  of  the  defendant  to  nse  them,  or  some  other 
equivalent  means  to  prevent  the  ninning  of  the  cars  hj  tlie  wind 
or  tlieir  own  motion  when  once  started,  ont  upon  the  main  track. 
Neither  the  circuit  court  or  any  other  court,  under  the  evidence, 
was  autlion'zed  to  find  as  a  matter  of  law  that  the  plaintiff  was 
bonnd  to  know  of  tlie  defects  in  the  construction  of  thisside  ti-ack. 
Tlie  jury  found,  in  Gnbstanee,  in  answer  to  special  questions,  that 
the  accident  was  occasioned  by  two  joint  causes,  to-ivit:  The  mo- 
tion imparted  to  tlie  car  by  tJie  special  freight  train  which  b:icked 
upon  the  side  track  the  night  of  the  accident,  and  tlie  force  of  the 
wind  then  prevailing.  In  my  opinion  there  was  sufficient  evidence 
to  warrant  a  jury  coming  to  this  conclusion.  Whether  or  not  tho 
fellow-employees  of  the  plaintifE  who  were  mnning  the  special 
freight  train,  were  negligent  in  not  knowing  that  they  liad  im- 
parted such  motion  to  their  car,  was  a  question  of  fact  for  the 
iury.  We  cannot  say,  as  a  matter  of  law,  that  they  were  bound  to 
;now  it,  and  consequently,  guilty  of  negligence. 

The  ninth  i-eqnest  of  the  defendant  was  properly  modified  by 
the  trial  coijrt.  The  tenth  was  correctly  refused.  Tlie  eleventh 
was  modified  as  it  should  have  been.  It  certainly  cannot  be  tho 
law  that,  because  the  company  is  not  obliged  to  maiutain  station 
agents  at  fiag  stations,  they  can  leave  the  Side  tracks  connected  by 
switches  with  the  main  track,  and  of  a  defective  construction,  sub- 
ject to  all  manner  of  interference  and  accidents,  without  any  one 
to  look  after  or  care  for  such  switches,  and  with  no  precaution 
whatever  against  accidents  which  are  liable  to  take  place  and  des- 
troy human  life. 

No  harm  to  the  defendant  could  have  resulted  from  the  allow- 
ance iu  evidence  of  the  fact  that  plaintiff  had  a  family,  and  resided 
with  them.  Though  immaterial  and  irrelevant  to  the  issue,  the 
fact  would  have  been  known  hv  the  juiy,  without  doubt,  had  not 
the  questions  been  allowed.  I  know  of  no  rule  that  would  have 
prevented  the  plaintiff  attending  tho  court  during  the  trial  Eur- 
rownded  by  his  family  had  he  chosen  to  do  so.  And  I  know  of  no 
means  that  could  have  been  taken  in  such  case  to  have  prevented 
the  jury  from  ascertaining  that  he  had  hisfamily  with  him  iu 
court.  Snch  questions  as  these  complained  of  are  ordinarily 
asked,  and  are  not  oi'dinarily  supposed  to  have  such  a  controlling 
influence  over  a  jury  as  to  vitiate  their  vei-dict. 


^d  by  Google 


UABTER  AND   SERVANT — BISK  OF  £KFLOYM£NT.        266 


Nbw  Yoek  and  New  EiraLAifD  R.  Co. 

{Advanee  Com,  Rhode    Island.     F^yntary,  1887.) 

The  piftiatiff,  a  brakemnn  in  defendant's  employ,  jumped  upon  a  moTing 
trun,  and,  while  climbing  up  tbe  ladder  on  tlic  side  of  the  car,  was  struck  bj 
»  pile  of  lamber  near  the  track.  The  plaiutiS  knew  that  the  lumber  was 
piled  there.  It  was  unloaded  and  piled  there  b;  tbe  direction  of  the  statioo 
asent.  In  an  action  against  tbe  company  for  damagee,  held:  I.  That 
pTaiDtiff  had  assumed  the -risk  incident  to  Iiia  employment,  and  cannot  re- 
cover for  the  voluntary  asaumplion  of  a  known  risk.  S.  That  the  atation 
agent  was  plaintiS'B  fellow  servant,  and  plaintiff  cannot  recover  for  hia 
negligence. 

IfVank  S.  Arnold  and  JI.  Eugene  Bolles  for  defendant. 
Charles  E.  Gorman  and  E.  L.  O'Reilly  for  plaintiff. 

SriNKes.  J. — The  plaintiff  was  employed  as  brakenian  on  a  freight 
train  hy  tlie  defendant  in  November,  1883,  While  in  that  em- 
ployment Ills  train  stopped  at  Caryville,  on  the'  defendant's 
road,  to  take  a  box  car  from  a  side  tnick,  near  whicli  were  a 
storehonse  and  two  piles  of  luml>er.  He  coupled  a  box  ear  to  the 
engine,  whicii  then  took  tliat  and  two  flikt  cara  down  vum. 

the  track  to  the  other  box  car.  On  the  return  of  the  train  tlias 
made  up,  and  while  it  waa  going,  as  the  plaintiff  Bays,  "a  pi'etty 
good  gait,"  he  claimed  that  he  jnmped  npon  the  last  car  to  climb 
a  Eide  ladder  to  get  to  his  post,  and  in  doing  so  Etrnck  against 
one  of  the  piles  of  Inmlwr,  by  which  he  waa  knocked  off,  receiving 
serions  injnries.  The  plaintiff  knew  about  the  lumber  piles,  for 
one  had  been  thora  a  long  time,  and  the  other  two  days,  according 
to  the  plaintiff,  or  two  montiis  accoi'ding  to  other  witnesses.  The 
plaintiff  s.'kid  he  "knew  it  was  there,  but  didn't  know  it  was  so 
close."  He  claims  that  tbe  negligence  of  the  defendant  consisted 
in  allowing  the  lumber  pile  to  he  placed  and  to  remain  so  near  the 
track  that  there  was  not  room  enough  between  tbe  car  and  the 
pile  for  him  to  ascend  the  car  in  safety;  thus  adding  a  new  and 
extraordinary  risk  to  his  employment. 

The  defendant  introduced  testimony  to  show  that  the  box  car  had 
no  side  ladder,  and  that  the  plaintiff  was  riding  back  to  the  switch  on 
the  truck  of  one  of  the  flat  cars,  and  thus  was  not  in  the  line  of 
bis  duty.  Upon  this  petition,  however,  we  must  assume  that  tbe 
jury  found  tbe  facts  to  be  in  accordance  with  the  plaintiff's  claim  ; 
and  upon  eneh  a  state  of  facts  we  think  a  new  trial  should  he  grant- 


ed by  GoOglc 


366  ffAFFKBT  9.    W.    T.    ATTD   If.    B.    B.    Oft 

ed.  The  plaintifE  bad  been  a  brakeinsn  for  seToral  yesTB,  on  thu 
and  otiier  roads,  and  was  familiar  with  the  premises  and  snrronnd- 
ings  where  this  accident  occurred.  Standing  near  tlie  stone  honaei 
where  the  train  came  np,  he  jomped  upon  the  car  from  the  side  of 
the  ti-ack  wliera  the  lumber  was,  in  dajlight,when  it  could  be  plain- 
ly seen.  He  not  only  knew  the  lumber  was  tliere  but  knew  aboat 
how  far  it  waa  from  the  place  where  he  stepped  on  the  moving 
train.  There  was  a  difference  in  the  testimony  about  the  distance 
of  the  pile  from  the  track,  the  defendant  claiming,  that  it  was 
placed  at  the  nsual  and  proper  distance,  and  that  the  plaintiff  waa 
dirown  oS  the  car  by  some  part  of  his  clothing  catclling  on  tiie 
boards,  tlte  plaintiff  denying  this. 

Whenaperson  enters  upon  a  dangerons  employment,  henotoid] 
aasnines  the  risk  ordinarily  incident  thereto,  bnt  also  the 
■nmraiBa  risk  he  may  incur  from  manifest  perils.  Theformerue 
^^  niPtoT-  jIiq  riaks  which  enter  into  his  contract  of  employment  y 
the  latter  are  tliose  which  he  voluntarily  accepts  when 
he  knows  of  their  existence.  If,  therefore,  the  lumber  was  at  its 
proper  and  usual  distance  from  the  track,  there  was  no  negHgeace 
on  the  part  of  the  defendant ;  there  waa  room  for  the  plaintiff  be- 
tween the  car  and  the  lumber,  and  his  injury  must  have  been  an 
accident  liable  to  happen  to  those  whose  business  reqnii-es  them  to 
dimbthe  sides  of  cars.  But  if  the  lumber  was  placed  iInprope^^f 
near  tlie  track,  no  one  could  know  better  than  the  plalntin  the  cer- 
tainty of  injui'y  if  he  should  be  on  the  side  of  the  car  when  did 
pile  was  reached.  It  had  been  unloaded  from  his  own  train,  and 
the  nextpile  had  been  hit  by  cars,  when  he  had  assisted  to  hold  it 
down.  His  reinai-k  "I  knew  it  was  there,  but  didn't  know  it  was 
so  close,"  may  mean  that  ho  did  not  know  it  was  so  close  to  dm 
place  where  he  got  on  the  car,  or  that  he  did  not  know  it 
was  BO  close  to  the  track.  Bat  in  either  case  he  had  seen  it 
with  wi  experienced  eye,  and  took  his  chance.  In  one  e>BS 
be  mnst  have  supposed  lie  had  time  to  get  to  the  top  of  the  car, 
and  in  the  other  that  he  had  room  to  pass  on  its  side.  He  mis- 
judged. There  wrb  no  hidden  defect  and  do  sudden  call  to  act  in 
an  emergency  outaide  of  his  ordinary  duty.  We  do  not  see  upon 
what  ground  the  plaintiffs  claim  that  the  location  of  the  lumber 
was  "  misleading"  and  confusing  can  be  maintained.  If  it  waa  in 
dangerous  proximity  to  the  track  he  could  not  have  supposed  it 
was  located  "  so  as  not  to  add  to  the  usual  risks  of  his  employment," 
for  he  knew  where  it  actually  waa.  That  a  plaintiff  cannot  recoTer 
for  the  voluntary  assumption  of  known  risks,  ia  a  proposition  es- 
tablished as  well  by  principle  as  by  authorities  nnmeronB  and 
decisive.  Sea  Kelly  v.  Silver  Spring  Bleaching  Co.,  12  R.  1. 113 ; 
MoGrath  v.  New  York  &  N.  E.  R,  Co.,  Wfi.  I.  357  ;  s.  c^8  Am. 
&  Eug.  K.  E.  Caa.  5 ;  Moulton  v.  Gage,  138  Mass.  390 ;  Willianu 


^d  by  Google 


MASTER  AND  SBBVA  ITT— BUSK   OF   KJePl-OYMEHT.        SOT 

«.  Chnrchill,  137  Mass.  343 ;  Lovejof  v.  BoeCon  &  L.  K..  125 
Mass.  79;  s.  c,  1  Am.  *S:  Eng.  R.  K.  Gas.  613. 

Indeed,  the  plaintiff  does  not  controvert  this  proposition,  but 
claims  simply  tfiat  the  piling  of  the  lumber  near  the  track  made  an 
nnnsual  risk,  which  was  misieadins^  and  confusing  and  so  presented 
B  com  plication  of  cii-cam  stances  wliich  warranted  the  verdict  of  the 

J'ary  in  determining  the  qneation  of  the  plaintiff's  negligence.  We 
lo  not  see  an;  such  complication.  The  plaintiff,  Icnowing  tli& 
lumber  pile  was  nsar  the  track,  jumped  upon  a  moving  train  sup- 
posing he  could  escape  it,  and  failed.  As  much  as  this  could  be 
•aid  in  almost  ever;  case  of  pare  accident.  We  do  not  see  that 
tJie  company  did  anything  to  mislead  or  confuse  him,  or  that  he 
conld  have  been  misled  or  confused ;  except,  possibly,  that  hd  may 
bave  thought  that  the  train  was  not  going  as  fast  as  it  really  was- 
going,  and  that  he  had  time  to  climb  its  side  before  reaching  th& 
wle.  H»  was  not  ordered  to  get  upon  the  train,  and  his  place  as 
bead  brakeman  was  on  the  car  next  to  the  engine,  and  not  on  the 
rear  car.  His  getting  upon  the  car,  therefore,  under  the  circnn>- 
stances,  was  an  net  of  his  own  choosing.  In  this  and  in  other 
yespects  before  suggested  the  case  diffci-s  from  the  recent  case  of 
Ferren  «.  Old  Colony  R.  Co.,  3  New  Eng.  Rep.  330. 

Another  gronnd  npon  which  the  petition  is  founded  is  that  the 
negligence  complained  oT,  in  piling  the  lumber  too  near 
the  track,wasnn  actof  thepluintiff'sfellowservant.  The  e 
station  agent  had  charge  and  direction  of  the  premises  i 
and  the  unlotiding  of  freiglit.  The  lumber  was  piled 
beside  the  track  under  his  direction  and  authority.  But  he  was  not  a 
vice-principal.  Be  had  no  anthority  over  the  plaintiff.  He  could 
■either  hire  nor  discharge  him  ;  nor  was  the  plaintiff,  so  far  as  ap- 
pears, subject  to  his  orders.  Both  were  engaged  in  a  common 
employment,  serving  a  coramoa  principal,  and  both  were  under 
tame  tfaegeneral  control.  Their  duties  and  anthority  were  different, 
but  tliey  were  still  fellow  servants.  As  this  very  qiieetion  has  been 
decided  npon  ^onnds  satisfactory  to  us,  it  wonld  be  profitless  to 
discuss  it  further,  or  to  mnltiply  authorities  in  its  support.  See 
Brown  v,  Minneapolis  &  St.  L.  B.  Co.,  31  Minn.  553,  15  Am.  A 
Eiig.  R.   R.  Cas.  883 ;  Hodckins  v.  Eastern  R.,  119  Mass.  41&. 

We  think  the  verdict  should  be  set  aside  and  a  new  trial  granted. 

Petition  granted. 

Praj0otian  at  tid*  of  Track — Inlory  to  Strvant  by. — See  Davis  «.  0.  Jt 
a.  R.  Co.,  28  Am.  A  Eng.  R.  R.  Caa.  440 ;  Ryan  «.  Canada  Boutbern  B.  Co., 
SO  lb.  844,  mid  ooce. 

Station  Agant  and  EnglnMr  arc  Fellow  Sarvants. — BrowD  e.  UiDDcapoIis, 
etc.,  U.Cn.,  16  lb.  883. 

RfaJuof  Employnwnt.— See  Wilaone.  Winona,  etc.,  R.  Co,  and  note,  ttipra. 


^d  by  Google 


PKNNSYLVANI&  R.  00. 


PBNHSTLVAHU.  K.  Co. 
(AdMUt  OoM,  Pmmtylvania.     Oetcbtr  8,  1867.)  ' 

The  plaintiff,  a  brakemsn  in  defendant's  employ,  was  injured  bj  tb«  col- 
liding of  two  sectioas  of  a  long  traia,  which  broke  as  it  was  about  to  descend 
a  heavj  grade.     Tbo  train  was  drawn  b;  two  engines  and  was  known  aa  a 

"double-header."  In  an  action  against  the  company  plaintiQ  alleged  that 
it  was  guilty  of  negligence  because  it  used  the  double-header;  because  two 
of  the  brakes  were  defective  on  section  of  the  train  where  plaintiff  was, 
which  prevented  him  from  stopping  it;  and  becauaa  the  couplings  were  not 
of  sufficient  strength  to  hold  the  train  together  on  heavy  grades.    Hdd: 

1.  That  a  master  may  conduct  his  business  in  his  own  way,  and  that  plain- 
tiff in  taking  service  with  a  company  which  resorted  to  the  use  of  the  double- 
header  ran  the  riak  of  his  employnient. 

2.  That  as  it  was  shown  that  the  company  had  notice  that  the  two  brakei 
were  defective,or  that  it  the  brakes  had  acted  they  would  have  stopped  the 
cars,  there  was  nothing  to  submit  to  the  jury  in  the  matter  of  the  brakes. 

3.  That  the  principle  that  the  master  may  conduct  bis  business  in  his  own 
way  applies  to  couplings  just  as  to  double- heading  the  truns. 

EaaoK  to  common  pleas,  Mifflin  county. 

Trespass,  by  William  Hawk,  against  the  Pennsylvania  R.  Co., 
for  diiiiiapes  for  pei-aoiial  injnries.     Tiie  facts  were  as  follows; 

Plaintiff  was  employed  as  a  btakemnn  on  the  Stmbnry  &  Lewis- 
town  division  of  tlie  Pennsylvania  fi.  On  tlie  19th  day  of  Oc- 
Rw™-  tober,  1882,  pliiiiitiff  was  called  on  to  make  one  of  an 

extra  crew  to  go  fi-om  Lewistown  to  Selinsgrove  to  get  a  train  of 
ears  that,  some  time  previously,  had  been  made  »p  at  Siinbnry  and 
rnn  on  the  side  track  at  Selinsgrove.  The  train  consisted  of  some 
85  ciira,  which,  owing  to  the  very  heavy  grades,  required  two 
engines  to  haul  it.  It  was  known  as  a  "double-header"  train. 
The  locomotive  engineer  in  charge  on  the  front  engine  was  Ed- 
ward "Walters.  Between  6  and  7  o'clock  in  the  evening  of  this 
day,  as  they  were  approaching  Lewistown,  when  on  the  top  of 
what  is  known  as  the  "ForeytheHill,"  the  train  broke  and  sepa- 
rated into  four  or  more  parts,  on  one  section  of  which  plainiiff 
■was.  As  soon  as  he  discovered  that  the  train  was  broken,  he  sig- 
naled with  his  lantern  that  the  train  had  parted,  and  this  was 
answered  by  the  engineer.  The  plaintiff  then  tried  to  stop  his 
section  by  applying  tlie  brakes,  going  over  tlie  six  or  more  cars 
two  or  thiee  times  and  tightening  the  brakes,  bnt  owing  to  several 
defective  brakes,  he  was  nnable  to  do  so.  After  using  all  the 
means  in  his  power  to  stop  tho  care  in  vain,  he  then  went  forwai'd, 


^d  by  Google 


MASTER  AND   SERVAKT — RISK   OF  EMPLOYMENT.         269 

and  kept  eignalling  to  the  enginneer  to  go  on  &nd  keep  out  of  the 
yraj,  in  accordance  witli  tlie  rules  of  the  defendnDt  company. 
Kear  tlie  bottom  of  this  grade  is  a  high  trestle,  on  which  he  col- 
lided with  another  section  of  the  bioken  ti-ain.  The  two  sectious 
then  kept  on  and  collided  witJi  tiie  engines  and  front  section, 
vhich  had  been  negligently  stopped  by  the  engineer  in  cliarge,  io 
violation  of  rule  No.  100  of  the  defendant  company,  which  reads 
as  follows:  "  If  a  train  slionld  part  while  in  motion  train-men  are 
Teqnired  to  nse  gi-ent  care  to  prevent  detached  parts  from  coming 
into  collision.  £ngi[ie-men  mnst  give  tiie  signal  as  per  rule  No. 
39,  and  keep  the  front  part  of  the  tmin  in  motion  nntil  the  de- 
tached portion  is  stopped." 

By  this  collision  the  plaintiff  was  so  injured  as  to  require  the 
immediate  amputation  of  his  leg.  Tliis  action  is  for  the  recovery 
of  damages  for  this  injury.  Tlie  plaintifE  alleges  that  defend- 
ant was  negligent  in  not  supplying  proper  links,  pins,  and  coup- 
lings of  the  strength  required  in  hauling  trains  over  the  heavy 
grades  on  this  road,  and  in  having  defective  brakes  npon  tiie  cars 
on  this  train,  whereby  the  plaintiff  was  unable  to  control  the  sec- 
tion on  which  he  was  left  when  the  train  broke,  and  because  of 
tlie  negligent,  careless,  and  reckless  locomotive  engineer  in  charge 
of  this  train. 

On  tiial,  plaintiff  offered  to  prove  that  the  grades  upon  the  Sun- 
bnry  &  Lewistown  division  are  heavier  and  greater  than  at  any 
point  on  the  main  line  of  the  Pennsylvania  Kailroad  between  Lewis- 
town  and  Altoona,  for  the  purpose  of  showing  that  it  required 
greater  strength  of  couplings,  links,  and  pins  to  the  cars  than  is 
ordinarily  required  on  tlie  main  line  of  defendant,  to-be  followed 
with  proof  that  defendant  used  no  other  or  different  couplings  on 
this  division  than  on  its  main  line;  that  it  is  the  cnstoin  of  the 
defendant  company  to  use  what  is  known  as  a  "pusher"  when 
heavy  trains  are  being  hauled  on  liesivy  grades,  for  tiie  purpose  of 
relieving  the  links,  pins,  and  conplings.  The  object  of  tliis  offer 
was  to  show  negligence  in  the  company  in  not  forriiahing  sufEeient 
appliances  and  instrumentalities  for  the  proper  and  safe  running  of 
its  ti-ains  on  this  division  under  the  circumstances.  This  tiie  court 
rejected,  and  is  one  of  the  errors  complained  of. 

Plaintiff  also  offered  to  prove  the  reputation  of  Ed.  Waltei-s  as 
a  reckless,  careless,  and  negligent  engineer, — this  to  establish  his 
character  as  an  unfit  person  to  he  employed,  and  that  his  general 
repatation  is  snch  that  tlie  defendant  could  liave  known  his  char- 
acter by  due  inquiry,  and  tliat  it  was  negligence  not  to  have  done 
so  before  employing  him.  This  offer  the  coart  also  rejected,  and 
ia  an  error  complained  of. 

The  oonrt  entered  a  compulsory  oonsnit,  which  they  snbse- 
qnently  refused  to  take  off,  Bocher,  P.  J.,  filing  the  following 
opinion ; 


^dbvGoo^lc 


S70  BAWX  V.    PEHtrSTLVATflA    Jt.    CO. 

"  la  tbifi  ewe  the  plaintiff,  an  employee  of  the  defeodaiit  ccoPB- 
ratiy,  v^B  injarad  l^  the  parting  of  a  train  on  the  Lewistown  A 
Snobarv  division  of  the  defendant's  road,  on  the  Idth  -of  October, 
A.  D.  IS82.  The  accident  liappened  on  a  considerable  ^rade, 
descending  from  north  of  Levietovn  past  the  poor-^ua«e  to  ibe 
long  trestle  work  near  the  Lewietown  station.  It  occnrred  between 
i  and  7  o'clock  in  the  evening.  Plaintiff  alleges  that  although  a 
brakeman  on  the  train  the  company  are  liable. 

"1.  Became  the  Q^n  was  donble-headed,  i.e.,  had  two  engines 
flt'.the:liead  of  the  train,  instead  of  one  at  each  end  thereof,  one  piiil- 
ing  and  one  pneliing ;  that  by  pntting  both  at  the  liead, 
H!22Sf??"Sr  and  thns  throwing  the  whore  strain  on  the  oonplings, 
uKoruruii-  j.jjg  defendant  was  gnilty  of  negligence.  It  is  a  com- 
plete answer  to  this  to  say  that  it  has  been  repeatedly 
lield  that  the  master  may  conduct  his  bneiness  in  hie  own  way  j  that 
the  plaintiff  took  service  with  a  company  which  resorted  to  this 
vietuod  of  doable- heading.  He  shonld  have  declined  entering 
apon,  or  abandoned  the  servioe  after  eotering  nuon,  the  aanae,  when 
lie  discovered  the  company's  method  of  propelling  trains  in  this 
way  by  means  of  donble-heading.  All  evidence  as  to  die  methods 
of  the  defendant  company  in  using  two  engines  in  drawing  the 
same  train  on  otlier  roads  of  the  Bame  company  were,  for  the  raa- 
«ons  given,  if  none  other,  properly  i-ejected.  Nayloi-  v.  R.  Co,,  5 
Am.  &  £ng.  K  B.  Cas.  460,  461,  462 ;  Ladd  v.  K.  Co.,  119  Mass. 
412 ;  Clark  v.  R.  Co.,  28  Minn.  69.  2  Am.  &  Eng.  R.  R.  Cas.  240 ; 
[Fleming  v.  R.  Co.,  6  N.  "W.  Rep.  448 ;  Gibson  v.  R.  Co.,  63  N. 
T.  449 ;  Dillon  v.  R.  Co.,  3  Dill.  330 ;  R.  Co.  v.  Welch,  63  111. 
188 ;  Devitt  v.  R.  Co..  50  Mo.  302  ;  Kelly's  Admsr.  v.  R.  Co.,  63 
Wis.  74,  reported  in  5  Am.  &  Eng.  R.  R.  Cas.  469;  Fi-azier  v. 
Pennsylvania  R.  Co.,  38  Pa.  St  104. 

"2.  Plaintiff  allegee  negligence  on  part  of  defendant,  becanse, 
out  of  many  brakes  he  discovered  two  not  in  woikiog  condition, — 
tlie  one  with  what  lie  supposes  was  a  cTiain  too  Icng, 
,  and  the  other  witli  a  dog  or  ratchet  which  failed  to  act. 
aiSaf"'  The  plaintiff  offered  no  evidence  to  show  that  it  was 
known  to  the  company  that  these  two  brakes  were  ont 
of  order,  nor  when  they  became  so.  For  auglit  that  appearsj  their 
condition  may  have  been  the  resnlC  of  the  trip  then  making,  and 
besides,  the  company  could  not  be  charged  with  negligence,  as  be- 
tween it  and  its  employees,  upon  the  proof  that  two  brakes  out  of 
thirty  would  not  act.  No  such  doctrine  has  been  annonnced  by 
any  case  witliin  onr  knowledge,  and  it  Bhonld  not  be,  as  it  wonld 
hold  companies  to  a  rnle  of  respoTisibilitv  which  would  be  unrea- 
sonable and  impossible  of  complt.ince.  Who  could  say  tliat  when 
the  brakes  of  live  ears  which  did  net  failed  to  arreet  tlie  section  on 
the  down  grade,  tliat  the  two  which  did  not  act  would,  if  added, 
have  done  soi     This  wonld  be  the  merest  gaess  ae  to  their  effect. 


^d  by  Google 


HASTSB  Ajn>  BXBVAirr — SIBK  Of  XHPLOTMENT.        371 

It  could  Dot  with  certainty  'be  raid  -tliKt  these  two son-aoti&g  brafaes 
vevB  the  proximate  eanse  of  the  accident,  or  even  oontribated 
ibereto.  Tlie  proximate  canee  was  the  bneaking  of  tlie  Goapliug^, 
and  wbetber  the  non-aotiiig  InnJcee  would  have  prevented  tlie  cal- 
lision  if  they  liadaeted  >caiinot  poeeibly  be  known.  There  is  bat 
little  antliority  on  tlie  duty  of  railway  companiee  to  have  effective 
brakes.  Tlie  cases  generally  arisiiie  ont  of  isolated  cars  in  tlie  de- 
feotine  brakes  are  iu  Itailroad  v.  Kirk,  90  Pa.  St.  15,  where  a  Inni- 
ber  car  was  left  standing  on  a  siding  leading  into  plaintifTs  ware- 
honse,  and  was  left  standing  there  beyond  the  time  required  for 
Tto  Temoval  by  the  rnies  of  tlie  company.  It  had  a  defective 
br^e,  and  was  not  blocked,  so  that  when  a  nninber  of  oars  from  * 
freight  train  were  Htarted  from  main  track  onto  the  aiding  ther 
stmtik  this  lumber  car  and  (forced  it  into  the  warehouse,  by  demol- 
iahing  woreliouse  doors,  and  killed  plaintiff's  son,  wlio  was  inside 
the  warehouse.  Tliere  was  evidence  that  the  nearest  [front]  oar 
running  into  the  siding  had  a  defective  brake.  The  question  of  neg- 
ligence (I  take  it  as  to  the  effective  blocking  of  the  car  on  the  sid- 
ing, and  its  being  left  there  against  the  rules  of  tlie  company)  went 
to  tlie  jury,  as  also  the  qnestion  as  to  the;  brake  on  the  front  car  of 
the  section  colliding.  But  it  will  be  observed  that  leaving  a  sin- 
gle car  on  a  siding,  with  a  defective  brake  and  unblocked,  and  per- 
mitting a  section  of  a  train  to  ran  on  the  aiding  with  a  bad  brake 
on  the  front  car, — and,  as  I  understand  it,  there  was  negligence  in 
reference  to  the  Bwltch  itself, — is  a  very  different  question  than 
the  one  in  hand,  where,  in  a  train  of  some  thirty  to  thirty-five 
can,  two  brakes,  when  applied,  were  ineffective,  witliout  proof 
that  the  company  knew,  and  without  evidence  to  show,  that  the 
nmning  of  the  train  had  not  damaged  the  brakea  in  the  very  tr^ 
then  making.  Thus  there  was  nothing  to  submit  to  the  jury  in 
the  matter  of  the  brakes. 

"  Then,  as  to  the  couplings  giving  way,  the  principle  that  tba 
master  may  condact  his  ousmeas  to  suit  his  own  views  applies  to 
■couplings  just  as  to  donble-hcading  the  trains.  Ooup-  nnunmim* 
lings  give  way  from  causes  impossible  of  detection  in  «wf™"- 
advauoe  of  tlie  occurrence,  such  as  flaws,  bad  welds,  etc.  The  offer 
to  ahow  that  on  the  main  line  the  company  used  different  coup- 
lings was  rightly  rejected,  because,  if  admitted,  then  if  a  similar 
accident  happened  on  the  main  line  it  wonld  be  competent  for 
plaintiff  to  siiow  the  different  couplings  used  on  the  Sunbnry  & 
Lewistown  road,  and  thus  each  could  be  need  to  condemn  tlie  other. 
There  was  no  evidence  whatever  to  show  that  the  broken  coupling 
was  defective,  unless,  indeed,  it  is  to  be  inferred  and  assumed  that 
it  was  BO  from  the  mere  fact  that  it  broke,  Tliis,  of  itself,  wonld 
not  constitnte  negligence,  and  make  the  defendant  liable  to  «n  em- 
ployee who  followed  his  business  from  fifteen  to  seventeen  months, 
and  was  familiar  with  the  conplirg  used  on  the  partioalar  train. 


d.vCoogIc 


S72  WOBUELL    V.     MAINE    CENTRAL    B.     CO. 

*'  As  to  the  offer  to  eliow  Engineer  "Walters,  reckless  by  reputa- 
tion, in  the  absence  of  any  proof  of  improper  or  rccklesB  conduct 
in  the  p:u-ticiilLir  case  and  accident;,  it  is  sutficient  to  refer  to  what 
tlie  court  hti8  euid  wlien  I'ejecting  the  geveral  oSere  of  plaintiff. 

"We  decline,  tlierefore,  to  take  off  the  nonenit." 

Wliei-eupoii  ijliiiuliff  took  this  writ. 

Porter  t&  MoKee  for  plaintiff  in  error, 

Oeo.  W.  Elder  and  Eufus  C.  Elder  for  defendant  in  error. 

Pee  Cubiah.  After  a  careful  examination  of  this  case,  we 
have  failed  to  discover  any  evidence  tending  to  show  such  negli- 
gence on  part  of  tlie  defendant  or  its  employees  as  wonld  render 
it  liable  for  the  plaintiff's  injnries.  We  mnst  therefore  concur 
with  the  court  below  in  its  rulings.     The  judgment  is  affirmed. 

Ritkt  of  Employmant— Bee  WiUon  v.  Winona,  etc,  B,  Co.  and  note,  titpra. 


Maike  Cbntbal  R.  Ca 

{Adoanee  Com,  Maint.     June  4,  1887.) 

The  plaintiff,  a  macliinist  in  defendaot's  car  shops,  bj  the  direction  of  the 
master  mechanic  of  the  road  undertook  to  couple  tome  cars,  and  waa  injured. 
He  brought  an  action  agaioBt  defendant,  oasing  a  recoverj  upon  two 
grounds — that  the  implements  and  means  furnished  were  not  proper  and 
suitable  for  the  work  which  the  plaintiS  was  directed  to  do;  and  that  the 
master  mechanic,  representing  the  corporation  as  a  vice  principal,  placed 
bim  in  h  position  of  peculiar  peril  without  notitving  him  of  the  danger. 
Seld: 

1.  That  where  an  employee  at  the  time  of  receiving  an  injuiy  is  in  the  per- 
formance of  duties  outside  of  his  regular  employment,  he  will  nevertheleaa 
be  held  to  have  assumed  the  risks  incident  to  those  duties,  and  cannot  lO- 
coverif  the  tojury  is  the  result  of  a  want  of  due  care  on  his  part. 

2.  That  a  servant  is  under  the  same  obligation  to  provide  for  his  own 
safety  from  dangers  of  which  he  has  notice,  or  might  discover  bj  the  use  of 
ordinary  care,  as  a  master  is  to  provide  it  for  him. 

3.  That  the  question  of  due  care  is  ordinarily  for  the  jury,  but  it  Is  for  tb« 
court  to  determine  whether  the  proof  is  sufficient  to  authorize  the  jurj  to 
find  due  care. 

Oh  motion  for  a  new  trial  and  ezceptioQB  by  the  defendant. 
Sustained. 
The  fncts  are  clearly  stated  in  the  opinion. 
Sdker,  Sa&er  tSs  Cornish  for  defendant. 
Waiton  <&  Walton,  for  plaintiff. 
F.  A.  WtUdron  also  for  plaintiff. 


^d  by  Google 


1L48TEB  AND   SERVANT — EXCEPITONAL  DANGEBS.        37S 

F08TBB,  J. — The  plaintiff  was  at  work  as  a  locomotive  macliin- 
ist  in  the  car  shops  of  the  defendant  corporation  at  Waterville. 
Oa  the  day  the  injury  vas  received  lie  was  directed  by  the  fore- 
man of  the  car  shops  to  go  out  witSi  an  engineer  and  rum. 
move  an  engine  from  the  paint  shop  near  by,  to  the  repair  shop 
where  the  plaintiff  worked.  Tbe  engine  witb  which  tlie  moving 
was  to  be  done  was  then  standing  on  the  turn-table  in  the  machine 
shop.  In  order  to  move  the  engine  from  the  paint  shop  to  the 
repair  shop  it  became  necessary,  first,  to  remove  certain  cars  which 
were  on  the  track  in  the  yard.  Tbo  pinintiff  went  ont,  and  while 
waiting  for  the  switches  to  be  tamed,  Pliilbrick,  the  master  me- 
chiinic  of  the  road,  came  out  and  asked  him  if  lie  knew  how  to 
shackle  the  passenger  car  that  stood  upon  the  paint-shop  tracks, 
and  the  plaintiff  replied  that  he  did  not  know  bow  to  shackle  any 
care.  Tliereupon  the  master  mechanic  took  him  to  the  car  and  ex- 
plained the  peculiar  danger  that  might  arise  from  the  shackling  of 
a  passenger  car,  nospecial  instruction  being  given  in  relation  to 
Bhackling  fiat  cars,  but  told  him  he  must  not  get  in  line  of  the 
drawbars,  and  finally  toid  him  that  he  guessed  he  could  get  along 
by  beinw  careful.  1  lie  fiat  cara  stood  next  to  the  engine  and  had  to 
be  coupled  first.  In  attempting  to  couple  the  tender  to  the  first 
fiat  car  he  nude  several  effoi'ts,  but  failed,  as  he  claimed,  because 
the  shackles  were  too  short.  Finally,  when  the  engine  and  the 
tender  backed  the  third  time,  standing  as  he  stood  before  between 
the  tender  and  the  fiat  car,  with  the  tender  on  his  right  and  the 
flat  car  on  bis  left,  while  adjusting  the  shackle  witn  his  right 
hand,  he  allowed  the  wrist  of  his  left  hand  to  rest  over  the  edee 
of  the  deadwood  of  the  fiat  car  directly  over  its  drawbar  and  di- 
rectly in  front  of  the  buffer  upon  the  tender,  which  is  a  projecting 
arm  out  of  which  the  shackle  extends,  and,  failing  to  connect  the 
shackle  with  the  drawbar  of  the  car,  tbe  buffer  came,  back  against 
and  crushed  his  left  hand,  necessitating  Its  ampntation. 

The  plaintiff  bases  a  recovery  against  the  defendant  corporation 
upon  two  grounds — that  the  implements  and  means  fnrnished 
were  Bot  proper  and  suitable  for  the  work  which  tbe  plaintiff  was 
directed  to  do;  and  that  Fbilbrick,  representing  the  corporation  as 
a  vice-principal,  placed  him  in  a  position  of  peculiar  peril  without 
notifying  him  of  the  danger. 

Tlie  latter  position  is  tlie  one  most  strenuously  urged  and  relied 
on  by  the  plamtiff,  who  i-ecovered  a  verdict  agamst  the  defendant; 
and  the  cose  is  now  before  this  court  on  motion  to  set  aside  the 
verdict,  and  also  on  exceptions. 

With  the  view  which  the  court  has  taken  of  the  case,  it  does 
not  become  necessary  to  determine  in  what  capacity  Fbilbrick  was 
acting,  whether  as  vice-principal  or  as  a  fellow  servant  with  the 
plaintiff,  inasmuch  as  it  is  the  opinion  of  the  court  that  the  verdict 
cannot  be  npheld  upon  other  grounds. 
81  A.  &  E.  R.  Cm.— 18 


^d  by  Google 


874  WOItMELL   V.    MAINE    OENTBAL   B.    OO. 

Tbe  action  set  forth  is  founded  npon  the  charge  of  negligence. 
^^^  It  is  tlie  gist  of  the  action.     To  entitle  the  pliiintiff  to 

taviKTu  Bia-  recover  he  innet  prove  such  negligence,  the  omiseion  of 
eome  dnty,  or  the  commission  of  such  negligent  acts, 
on  the  part  of  the  defendaot  as  occasioned  the  injurjf  to  the 
plaintiff. 

If  the  injnry  was  occasioned  through  his  own  neglect  and  want 
of  orniiiarj  caie,  or  was  the  aesult  of  accident  solely,  the  defendant 
being  without  fanlt,  the  action  .is  not  maintainahle.  "The  negli- 
gence is  the  gist  of  the  action,  but  tho  absence  of  negligence  con- 
tributing to  tlie  injurj*,  on  the  part  of  the  plaintiff,  is  eqnnlly  im- 
portant." Brown  «.  European  &  N.  A.  K,  Co.,  58  Me.  387; 
Osborne  v.  Kirox  &  Lincoln  B ,  68  Me.  51. 

There  is  no  presumption  of  negligence  on  the  part  of  the  de- 
fendant fi'om  the  fact  alone  that  an  accident  has  happened,  or  that 
the  plaintiff  has  recoired  an  injury  while  in  the  employment  of  the 
defendant.  In  the  long  line  of  decisions,  both  in  this  country  and 
England,  from  Priestly  v.  Fowler,  3  MecB.  &  W.  Exch.  1,  to  the 
present  time,  it  has  been  held  that  the  mere  fact  of  the  relation- 
ship of  master  and  servant,  without  a  neglect  of  duty,  does  not 
impose  upon  the  master  a  guaranty  of  the  servant's  safety,  bnt  that 
the  servant  of  sufficient  age  and  intelligence  to  understand  the 
nature  of  the  risks  to  which  he  ie  exposed,  engaging  for  compen- 
sation in  the  employment  of  the  master,  takes  upon  liimself  the 
natural,  ordinary,  and  apparent  risks  and  perils  incident  to  such 
employment.  Coolbroth  v.  Maine  Cent.  R.  Co.,  77  Me.  167 ;  s.  c, 
21  Am.  &  Eng.  R.  E.  Gas.  599 ;  Kason  v.  West,  78  Me.  257. 

The  relationship  of  master  and  servant  may,  and  most  freqnently 
does,  exist  by  simple  mutual  agreement  that  the  servant  is  to  labor 
in  the  service  of  the  master.  In  such  case  the  law  holds  that  the 
terms  of  the  contract  arc  not  fully  expressed,  and  that  there  exist 
by  implication  reciprocal  rights  and  obligntions  oit  the  part  of 
each,  which  it  will  protect  and  enforce  equally  as  if  expressed  by 
the  parties.  Among  other  things  it  implies  tliat  each  is  to  exercise 
ordinary  and  reasonable  care.  It  implies  that  the  master  is  to  use 
ordinary  care  in  providing  and  maintaining  suitable  means  and  in- 
strumentalities with  which  to  conduct  the  business  in  which  the 
servant  is  engaged,  so  that  the  servant,  being  himself  in  tlie  exer- 
cise of  dne  care,  may  be  enabled  to  perform  his  duty  without  ex- 
posure to  dangers  not  falling  witiiin  the  obvious  scope  of  his  em- 
ployment. The  implied  dnty  of  the  master  in  this  respect  is 
measured  by  the  standard  of  ordinary  care.  Hull  v.  Hall,  78  Me. 
117.     The  law  holds  him  to  no  hiErher  obligation  than  this. 

Nor  is  the  employer  bound  to  furnish  the  safest  mnchinery,  in- 
strumentalities, or  appliances  with  wiiich  to  cany  on  his  business, 
nor  to  provide  the  best  methods  for  their  operation,  in  order  to 
save  himself  from  responsibility  resulting  from  their  use.     If  they 


^d  by  Google 


MASTEE  AND  SERVANT — EXCEPTIONAL  DANOEE8.         275 

are  of  an  ordinary  character  and  each  ae  can,  witli  reasonable  care, 
be  UBed  witlionC  danger,  except  such  ae  may  lie  reasonably  incident 
to  tlie  bneiriess,  it  is  all  that  tbe  itiw  requires.  Pittsbnrgh  &  C. 
E.  Co.  V.  Seiitmeyer,  92  Pa.  St.  276 ;  s.  c,  5  Am.  &  Eng.  R.  R.  CaB. 
508 

Tims  it  1)38  been  held  that,  where  an  injury  happens  to  a  serv- 
ant ^rhile  Dsiiig  an  insti'iiinerit,  an  engine,  or  a  machine  in  the 
eoiH'se  of  hie  employment,  of  the  nature  of  which  he  is  as  much 
aware  ae  his  master,  and  in  the  use  of  which  he  .receives  an  injury, 
lie  cannot,  at  all  events  if  the  evidence  is  consistent  with  his  own 
neglicfeilce  in  the  nee  of  it  as  the  cause  of  the  injury,  recover 
against  liis  master,  there  being  no  evidence  that  the  injury  arose 
tarough  the  personal  negligence  of  the  master;  and  that  it  was  no 
evidence  of  such  personal  negligence  of  the  master  tbat  he  had  in 
use  in  his  business  an  engine  or  machine  less  safe  than  some  other 
in  general  use.     Dynen  v.  Leach,  2C  L.  J.  Exch.N.  S.  221. 

And  in  accoi'dance  with  the  same  principle  it  was  held  in  In- 
dianapolis,  U.  &  "W;.  R.  Co.  v.  Flanigati,  77  111.  365,  that  a  railroad 
company  was  not  liable  for  an  injury  received  by  an  emploj'ee, 
while  coupling  cars  having  double  buffers,  simply  because  a  higher 
degree  of  care  is  required  in  using  them  than  m  those  diSerenily 
constructed. 

So  in  Fort  Wayne,  etc.,  R.  v.  Gildersleeve,  33  Mich.  133,  it  was 
decided  that  a  railroad  company,  which  used  in  one  of  its  trains  an 
old  mail  car  which  was  tower  than  others,  was  not  liable  to  its 
servant,  who  knowingly  incurred  the  risk,  for  an  injury  resulting 
from  the  coupling  of  such  old  car  with  another,  though  the  danger 
was  greater  than  witli  cars  of  equal  height. 

Every  employer  has  the  right  to  judge  for  himself  in  what  man- 
ner he  will  carry  on  his  business,  as  between  liimself  and  those 
whom  ha  employs;  and  the  servant  having  knowledge  of  the  cir- 
cumstances must  judge  for  himself  whether  he  will  enter  his  serv- 
ice, or,  having  entered,  whether  he  will  remain.  Hayden  v. 
Smithvillo  Mfg.  Co.,  29  Conn.  548;  Buzzell  v.  laeonia  Mfg.  Co., 
48  Me.. 121 ;  Shanny  v.  Androscoggin  Mills,  66  Me.  427 ;  Coombs 
V.  New  Bedford  Cordage  Co.,  102  Mass.  585;  Ladd  v.  New  Bed- 
ford R.  Co.,  119  Mass.  413. 

Moreover,  the  law  implies  that  where  there  are  special  risks  in 
an  employment  of  which  the  servant  is  not  cognizant,  or  wiiich  are 
not  patent  in  the  work,  it  is  the  duty  of  the  master  to 
notify  him  of  such  risks;  ami,  on  failure  of  snch  notice,  ^5^"  " 
if  the  servant,  being  in  the  exercise  of  due  care  himself, 
receives  injury  by  exposure  to  such  risks,  he  is  entitled  to  recover' 
from  the  master  whenever  the  master  knew  or  ought  to  have 
known  of  sucli  nsks.  It  is  unquestionably  the  duty  of  the  master 
to  communicate  a  danger  of  which  he  has  knowledge  and  the  ser- 
vant has  not.     But  there  are  corresponding  duties  on   the  part  of 


^d  by  Google 


376  WORMELL  V.    MAINE  OENTRAX  B.    OO. 

the  servant ;  and  it  is  lield  tliat  the  master  is  not  liable  to  a  servant 
who  is  capable  of  contracting  for  himself,  and  knows  the  danger 
attending  the  bnstnesB  in  the  manner  in  whicli  it  is  condncted,  for^ 
an  injurj  reanlting  therefronn.  Lovejoy  v  Boeton  &  L.  R.  Corp., 
125  Mass.  82;  Ladd  V.  New  Bedford  II.  Co.,  supra;  Priestley  v. 
Fowler,  3  Mees.  &  W.  Excli.  1.  It  is  liia  duty  to  nse  ordinary 
care  to  avoid  injuries  to  liimself.  Ue  is  nnder  as  great  obligation 
to  provide  for  his  own  safety,  from  such  dangera  as  are  known  t» 
him  or  discoverable  by  the  exercise  of  ordinary  care  on  his  part,  aa 
the  master  is  to  provide  it  for  liim.  He  may,  by  the  want  of 
ordinary  care,  so  contribute  to  an  injury  sustained  by  himself  as  to 
destroy  any  right  of  action  that  might,  under  other  circa mstanoea, 
be  available  to  him. 

Tiiese  rnies  are  elementary  and  fundamental,  and  are  every- 
where recognized.  They  grow  out  of  the  necessities  of  the  relation 
of  master  and  servant,  and  are  fonnded  and  sustained  by  public 
policy.  Tliongli  dressed  iti  language  differing  somewhat  in  style 
of  expression,  it  will  be  found  tliat  the  decisions  generally  are  in 
accord  with  the  principles  herein  expressed.  One  writer  has  thns 
summed  np  the  doctrine  in  the  following  language:  "As  we  have 
seen  it  to  be  the  duty  of  the  master  to  point  out  such  dangers  aa 
are  not  patent,  so  it  is  the  duty  of  t.he  employee  to  go  abont  Lib 
work  with  his  eyes  open.  He  cannot  wait  to  be  told,  but  must  act 
affirmatively.  He  must  take  ordinary  care  to  learn  the  dangers 
which  are  likely  to  beset  him  in  the  service.  He  mnst  not  go 
blindly  to  his  work  when  there  is  danger.  He  must  inform  liim- 
self.  This  is  the  law  every  wliere."  Beacli,  Contrib.  Neg,  §  138 ; 
Ruesell  v.  Tillotson,  140  Mass.  201. 

In  speaking  of  tlie  respective  duties  and  obligations  between 
master  and  servant,  in  reference  to  dangere  which  are  concealed 
and  rhose  which  are  obvious,  the  court,  in  Cummings  v.  Collins, 
61  Mo.  423,  says:  "The  defendants  are  not  liable  for  any  injury 
,  resniting  from  causes  open  to  Che  observation  of  the  plaintiff,  and 
which  it  required  no  speciid  skill  or  training  to  foresee  were  likely 
to  occasion  him  harm,  although  he  was  at  the  time  engaged  in  the 
performance  of  a  service  which  he  had  not  contracted  to  render." 

TTnon  a  carefnl  examination  of  the  evidence  in  the  case  under 
consideration,  we  are  satisfied  tiiat  the  verdict  cannot  stand.  There 
is  not  sufficient  evidence  upon  whicli  a  jury  could  prop- 
^SI""^  erly  fonnd  a  verdict  that  the  plaintiff  himseif  was  in 
'  the  exercise  of  due  care  at  the  time  he  i-eceived  his  in- 
jary.  This  is  an  affirmative  proposition  which,  in  this 
State  and  many  of  the  others,  it  is  incumbent  on  the  plaintiff  to 
make  out  by  proof  before  he  could  be  entitled  to  recover.  Diek^ 
V.  Maine  Telegraph  Co.,  43  Me.  493;  Lesan  «.  Maine  Cent.  H. 
Co.,  77  Me.  87;  s.  c,  23  Am.  &  Eng.  R.  R.  Cae.  245;  State  t>. 


^d  by  Google 


MASTEB  AND  SERVANT — EXCEPXrONAL  DANGERS.         277 

Maine  C«iit.  E.  Co.,  Id.  541 ;  Crafts  v.  Boston,  109  Maee.  521; 
Tavlorw.  Carew  Mfg.  Co.,  140  Mass.  151. 

Kor  will  tliie  proposition  be  Biistaiiied  where  the  evidence  in 
reference  to  it  is  too  slight  to  be  considered  and  acted  on  by  a  jnry. 
It  must  be  evidence  li.iving  eonie  legal  weight.  Sucb  are  the 
general  doctrincB  of  the  decisions.  A  mere  sciiitilla  of  evidence 
18  not  sufficient,  Connor  v.  Giles,  76  Me.  134;  Riley  v.  Connec- 
ticnt  R.  R.  Co.,  135  Mass.  292;  s.  c,  16  Am.  &  Eng.  R.  R.  Cas. 
181;  Corcoran  v.  Boston  &  A.  JR.  Co.,  133  Mass.  509;  Nason  v. 
"West,  78  Me.  256,  and  cases  there  cited;  Oornman  v.  Eastern 
Conrities  R.  Co.  4  Hurl.  &  N.  Exeh.  784. 

It  is  not  denied,  as  contended  for  by  the  learned  counsel  for  the 
plaintiff,  that  the  qaestion  of  due  care  is  ordinarily  one  of  fact  for 
the  jnry.  Ent  tiie  question  oftentimes  becomes  one  of  law  whether 
there  are  such  facts  or  circnmstances  upon  which  the  jury  can 
properly  base  their  determination  in  favor  of  such  care.  If  not, 
It  is  within  the  province  of  tlie  conrt,  in  the  due  administration  of 
justice  according  to  well-settled  legal  principles,  to  revise  their 
iiiidine. 

Ana  in  this  case  the  evidence  uncontradicted  from  the  plaintiff 
faiiiiself  as  to  the  manner  of  the  accident,  is  conclnsive  against  the 
verdict  upon  this  point.  Not  only  do  the  facts  as  de- 
tailed by  him,  and  about  wiiich  there  appeare  to  be  no  ^S'pS 
controversy,  fail  to  show  the  exercise  ot  due  care,  but  ™,duiicj 
rather  that  degree  of  carelessness  and  neglect  on  bis 
part  which  mjst  he  held  to  have  very  largely  if  not  wholly  contrib- 
uted to  the  injury  complained  of,  lie  was  a  man  fifty-live  years 
of  age,  and  had  been  fur  many  years  familiar  with  engines  of  ail 
constrnctions ;  had  been  a  locomotive  machinist  for  twelve  years, 
repairing  them  constantly,  and  six  years  in  the  employ  of  the 
-defendant  corporation.  For  five  years  prior  to  the  accident, 
«ngineB  with  bnfiers  had  been  in  common  use  upon  the  road ;  and 
he  had  worked  upon  every  pattern  of  engine  that  came  into  the 
shops  where  he  was  employed.  He  testifies  that  the  engine  with 
which  he  was  injared  came  that  morning  from  the  repair  shop 
where  he  was  working,  and  that  it  might  nave  been  there  four  or 
£ve  weeks,  and  he  might  have  worked  on  it.  He  had  received  a 
general  warning  from  Fliilbrick  to  be  careful,  and  was  specially 
warned  of  the  dancer  in  reference  to  ehackling  passenger  cai-s.  It 
also  appears  from  his  testimony  that  he  stood  there  watching  the 
clearing  of  the  tracks  for  fifteen  to  thirty  minutes.  He  huiJ  full 
leisure  to  examine  and  infonn  himself  of  all  the  common  dangers 
incident'  to  shackling.  It  appears  that  be  attempted  three  titTies 
to  do  the  shackling,  and  the  third  time  he  received  the  injury. 
The  first  time  he  stood  with  the  engine  backing  down  npon  his 
right,  himself  facing  the  engine  and  shackling  apparatus  on  its 
rear,  of  whicli  the  bnffer  was  the  most  prominent  part.     The 


^d  by  Google 


378  ■WORMELL  V.    MAINE   CENTRAL  B.    CO. 

shackle  itself  wliicli  he  took  liold  of  projected  from  the  buffer,  and 
lie  cunld  not  see  one  withoat  seeing  the  other.  Everytliing  was 
in  plain  sight.  It  was  in  broad  dayught.  At  tlie  first  attempt  he 
failed  to  connect  the  shackle  witii  the  drawbar,  conseqaentlj  the 
tender  bronebt  up  against  the  deadwood  of  the  car  on  his  left. 
As  the  shackle  did  not  connect,  the  contact  between  the  tender 
and  the  flat  car  could  only  have  been  caused  hy  the  buffer  striking 
against  the  deadwood  of  the  car  pi'ecieely  in  the  spot  wliere  he 
afterwards  placed  bis  left  hand  and  received  his  iiiiury.  He  then 
tried  a  new  shackle,  repeating  the  same  process.  The  second  time 
tlie  siiackle  failed  to  connect,  and  the  engine  and  car  came  together 
again  in  precisely  the  same  manner  as  at  first,  the  buffer  again 
striking  the  car  at  the  very  point  where  afterwards  he  placed  his 
hand.  After  these  two  attempts  immediately  nnder  his  eye,  he 
tried  a  third  siiackle,  and  the  engine  a  third  time  backed  down 
towards  him,  again  giving  iiim  full  opportunity  for  obfiervation — 
he  facijig  the  buffer  as  before,  and  necesparily  looking  right  into 
the  shackling  appai-ntns  of  which  the  bnSer  was  a  part,  and  this 
time  bnng  his  left  wrist  over  the  front  edge  of  the  centre  of  the 
deadwood,  directly  in  front  of  the  approaching  buffer,  in  precisely 
the  same  place  where  the  buffer  hud  inet  strnck  tiie  deadwood 
twice  before.  It  waa,  as  the  evidence  sliows,  the  only  place  upon 
the  car  where  he  could  not  have  placed  his  hand  with  perfect 
'safety.  Placing  it  where  he  did,  tlie  injury  was  inevitable.  It 
required  no  special  skill  or  training  to  know  that  snch  an  act  would 
necessarily  result  in  injnry.  This  was  not  an  extraordinary  or  con- 
cealed danger  which  required  to  be  specially  pointed  out  to  a  per- 
6on  of  mature  years  and  ordinary  intelligence.  He  had  been 
employed,  as  be  himself  testifies,  for  twelve  years  solely  in  work 
about  and  npon  all  manner  of  engines  and  cars,  including  engines 
with  buffers  precisely  as  this  one  was  equipped.  No  man  needs  a 
printed  placard  to  announce  a  yawning  abyss  when  he  stands 
before  it  in  broad  daylight.  Teaton  v.  Boston  <fe  L.  R.  Corp., 
135  Mass.  418  ;  a.  c,  16  Am.  &  Eng.  Corp.  Caa.  253 ;  Coolhrotli  v. 
Maine  Cent.  R.  Co.,  77  Me.  168;  Pbiladelpiiia,  W.  &  B.  K.  Co. 
V.  Kecnan,  103  Pa.  124;  Osborne  v.  Knox  &  L.  R.,  68  Me.  51. 

And  it  was  held  in  Wlieeler  v.  Wason  Mfg.  Co.,  135  Mass.  298, 
that,  where  the  servant  is  as  well  acquainted  as  the  master  with 
the  dangerous  nature  of  the  machinery  or  instrument  used,  ov  of 
the  service  in  which  he  is  engaged,  lie  cannot  recover.  Beach,. 
Contrib.  Neg.  §  140. 

Verv  similar  were  the  facts  in  the  case  of  Hathaway  v.  Micliigan 
Cent.  R.  Co.,  51  Mich.  253;  47  Am.  Eep.  569;  s.  c,  12  Am.  & 
E[ig.  R.  R,  Cas.  249,  to  these  in  the  case  before  us.  There  the 
plaintiff,  an  inexperienced  brakeman,  was  called  upon  hy  the  con- 
ductor in  tlie  night-time  to  couple  two  cars  of  the  Erie  road  which 
were  made  specially  dangerous  oy  having  double  dead  woods,  which 


^d  by  Google 


ItASTEE  AND  8EBVAMT— ESCEPTIONAL  DAWflEBS.       379 

the  plaintiff  iiad  never  seen  before.  Id  that  eaee,  as  in  tlie  present, 
one  of  tlie  real  grounds  get  up  by  the  plaintiff  was  that  he  had  not 
been  snfSciencly  instructed  in  what  was  required  of  hira  hy  the 
company  to  enable  him  to  discover  and  appreciate  the  dan^r,  and 
that  some  notice  tliereof  siiould  have  been  given  him  by  the  com- 
pany other  than  the  general  one  ^hich  he  received.  The  court 
says:  "The  plaintiff  liad  the  full  opportunity  of  examining  the 
one  by  which  he  stood  some  moments  before  the  cai-s  came  to> 
^ether;  its  size,  shape,  and  location  of  the  drawbar  were  before 
Eiin.  He  had  only  to  look  at  to  be  informed  of  any  perils  sur- 
rounding it.  The  moving  car  at  a  distance  of  twenty  feet,  with  its 
deadwoud  and  drawbar  in  plain  view  slowly  approached  the  one 
where  the  plaintiff  was  standing.  It  does  not  appear-  that  there 
•was  any  hnrry  about  the  business.  How  could  the  plaintiff  have 
l>een  better  warned  ?  He  could  see  the  deadwoods  and  drawbar 
thereon  as  well  as  if  he  had  made  the  coupling  of  them  a  thousand 
times  befiire.  He  could  not  fail  to  see  if  he  looked  at  all."  Se^ 
jtlso,  Taylor  v.  Carew  Mfg.  Co.,  140  Mass.  151. 

If  the  plaintiff,  as  is  cucitended,  was,  at  the  time  of  this  nofoi^ 
tonate  occurrence,  iu   the  performance  of  duties  outside  of  his 
regular  employment,  he  will  nevertheless  be  held  to 
liave  assumed  the  risks  incident  to  those  duties.     This  Punmn    ab- 
principle  is  settled  by  numerous  decisions.     Wondley  i^muoL^iM 
V-  Ifetropolitan  District  E.  Co.,  2  Exch.  Div.   3S9;  naxoiHur. 
Union  P.  R.  Co.  v.  Fort,   17  Wall.  553;  Rumniul  v. 
Dilworth,  111  Pa.  St.  343;  Bnzzel  v.  Laconia  Mfg.  Co.,  48  Me. 
121;  Hayden  v.  Smithville  Mfg.  Co.,  29  Conn.  548;  Wright  v. 
New  York  Cent.  R.  Co.,  25  N.  Y.  570  ;  Leary  ti.  Boston  &  A.  R. 
Co.,  139  Mass.  587 ;  s.  c,  23  Am.  &  Eng.  R.  R.  Cas.  383. 

In  tlie  last  case  cited  where  the  question  is  fully  discussed,  the 
conrt  says  :  "  Where  one  has  assumed  an  employment,  if  an  addi- 
tional  or  more  dangerous  duty  is  added  to  his  original  labor,  he 
may  accept  or  refuse  it.  If  he  has  an  existing  contract  for  the 
original  service,  he  may  refnse  the  additional  and  more  dangerous 
service;  and,  if  for  that  reason  he  is  discharged,  he  may  avail  him- 
self of  his  remedy  on  his  contract.  If  he  has  no  snch  contract^ 
and  knowingly,  although  ifnwillingly,  accepts  the  additional  and 
more  dangerous  employment,  he  accepts  its  incidental  risks;  and, 
while  he  may  require  the  employer  to  perform  his  duty,  he  cannot 
recover  for  an  mjury  which  occurs  only  from  his  own  inex- 
perience." 

From  the  disposition  of  the  case  already  made,  it  becomes  tin- 
necessary  to  consider  the  defendant's  exceptions.  The  law  per- 
taining to  the  case,  in  order  to  cover  it  fully  at  the  time  of  the 
trial,  was  necessariiy  somewhat  complicated ;  and  it  is  very  ques- 
tionable whether  the  numerous  abstract  propositions  appearing  in 
^e  charge,  and  followiiie:  each  other  in  quick  succession,  could  be 


iizcdbvGoOgle 


280  WOEMELL  V.    MAINE  CENTRAL   E.   CO. 

readily  compreliended  by  a  jury  unaccuetomed  to  grapple  with 
abstniBe  and  intricate  legal  propositions.  While  the  charge  may 
have  been  correct  in  the  abstract,  we  are  of  the  opinion  that  aeveral 
of  the  defendant's  requested  instrnctions  were  proper  to  a  full 
understanding  of -tiie  piinciplcs  involved,  and  their  application  to 
the  questions  at  issne,  and  Bhould  have  been  given. 

As  the  case  is  disposed  of,  however,  on  other  grounds  nothing 
further  need  be  said  in  relation  to  the  exceptions. 

Motion  sustained.     New  trial  granted. 

Peters,  Oh.  J.,  Damfobth,  Virgin,  LiBBBT,and  Haskell,  JJ., 
concurred. 

Perlloui  Duti«i  Outiide  Scope  of  Servant's  Employment. — The  doctrine 

useried  in  ilie  principnl  caee,  tlitit  h  servant  performing  perilous  duties  out- 
side tlie  scope  of  liia  employment,  will  nevertheless  be  held  to  have  aaaumed 
the  riEks  incident  to  tbose  duties,  has  been  both  affirmed   and   apparently 

In  Michigan  Central  R.  Co.  o.  Smithson,  1  Am.  &  Eng,  R.  R.  Cas.  101, 
under  BimiltLr  facts  it  is  pointed  out  that  while  it  is  negli)reDce  for  an  em- 
ployer to  send  hia  servant  into  dangerous  places,  or  put  liim  to  dangerous 
tasks,  of  tbe  risks  of  which  the  servant  is  ignorant,  ualess  noiice  is  given  to 
put  the  servant  on  hia  g'uard,  yet  no  employer  la  bound  at  liis  peril  to 
make  use  of  the  best  macliinerj,  implements,  and  methods.  Where  brake- 
men  were  frequently  called  upon  to  couple  cars  provided  with  an  unusually 
dangerous  coupling  appaiatua,  it  was  held  not  to  be  negligence  to  receive 
such  cars,  or  to  fail  to  notify  the  brakeman  injured  of  the  difference,  as  this 
was  apparent  to  any  one  attempting  to  perform  the  coupling. 

In  Lalor  e:  Chicago,  etc.,  R.  Co.,  52  111.  401,  the  plaintiffs  intestate,  a 
laborer  employed  in  loading  and  unloading  freight  cars,  was  ordered  to 
couple  cars  by  tbe  defendant's  Buperiniendent,  who  knew  htm  to  be  inex- 
perienced, "unskilled  aud  unacquainted  with  the  manner  of  doing  such 
work,  when  he  ordered  the  deceased  to  perform  it."  And  the  company  waa 
held  Hable  for  its  misconduct  in  exposing  the  deceased  to  this  peril,  and, 
when  BO  expose^,  in  so  carelessly  mismanaging  the  engine  aa  to  causd  his 
death. 

In  Jones  o.  Lake  Bfaore,  etc.,  R  Co.,  49  Hich.  S73,  tbe  plaintifi  was  a 
brakeman  on  a  passenger  train  under  a  written  contract  which  bound  him  to 
no  such  duty,  and  was  ordered  to  couple  cara,  to  which  he  at  first  objected, 
but  assented  to  doing  it  rather  than  lose  his  place.  In  so  doing  he  was  in- 
jured by  reason  of  his  inexperience.  It  was  held  that  he  might  recover  for 
the  defendant's  negligence  in  thus  imposing  work  upon  him  which  he  had 
not  contracted  to  perform. 

See,  also,  O'Connor  e.  Adams,  120  Mass.  427;  Combs  v.  New  Bedford 
Cordage  Co.,  103  Mass.  073;  Sullivan  v.  India  Manuf.  Co.,  118  Mass.  896; 
Chicago,  etc.,  R.  Co.  v.  Bayfield,  87  Hich.  SOS;  Qowling  v.  Allen,  74  Mo. 
13;  Atlas  Engine  Works  e.Randsll,  100  Ind.  SeS;  Indiana  Car  Co.  e.  Parker, 
100  Ind.  181 ;  Hill  e.  Gust,  B5  Ind.  45 ;  Mann  t>.  Oriental  Print  Worki.,  1 1  R 
I.,  153;  s.  c,  14  Am.  L.  Reg.  (N.  B.)  788,  and  note;  Railroad  Co.  e.  Foot, 
17  Wall.  SS4;  Pittsburgh,  etc.,  R.  Co.  d.  Adams  (Ind.),  28  Am.  &  Eng.  R. 
B.  Cas.  408. 

la  Pittsburgb,  etc.,  R.  Co.  e.  Adams,  23  Am.  &  Eng.  R.  R  Cas.  408,  the 
court  observes ; 

"  If  the  master  orders  him  to  work  temporarily  in  another  department  of 
the  general  business,  when  tbe  work  is  of  such  a  different  nature  and  charac- 
ter that  it  cannot  be  said  to  be  within  tbe  scope  of  bis  employment,  and 


^d  by  Google 


MASTER  AND  SEBVANT — EXCEPTIONAL   DANGERS,        261 

where  be  U  asBOciated  with  a  different  clsn  of  emplo^rees,  be  will  not,  by 
obeying  sucb  ordera,  neceaaaril;  ihereb;  ssBume  the  nakt  incident  to  the 
work,  and  the  risk  of  oegligeDce  on  the  p&rt  of  such  employees.  He  will 
not  necesMiily  be  guilty  of  negligence  ia  obeying  Bucb  orders  of  the  msBter, 
even  though  they  ma;  carry  him  into  more  hazardouH  and  dttngeroue  work. 
Whether  or  not  the  servant  may  be  negligent  in  obeying  aucn  orders  will 
depend  upon  the  facts  and  circumstBDCes  of  esoh  particular  case.  The  facts 
and  circumstances  may  be  such  as  to  show  that  in  obeying  such  orders  the 
servaat  voluntarily  assumed  the  increased  risks;  or  they  may  be  aucli  as  to 
show  that  he  obeyed  the  orders  for  a  temporary  change;  uoder  threata  of 
discharge,  or  und<-r  such  circumstances  as  that  he  might  well  hare  expected 
a  diflcharge  if  he  disobeyed." 

Compare  Leary  v.  Boaton,  etc.,  R.  Co.,  189  Mass.  S80;  a.  c,  28  Am.  & 
Eng.  R.  R.  Cas.  888;  and  other  cases  also  cited  by  the  court  in  the  principal 
case. 

Bee,  generally.  Union  Pacific R.  Co.  e.  Fray,  39  Am.  &  Bug.  R  B.  Oas.  806; 
Bchultz  e.  Chicago,  etc,  R.  Co.,  and  uoU,  88  lb.  408. 


Adkins,  Admx., 


Atlaiita  and  Gbaklotte  Am  Lnm  K  Oo. 
{Adtanea  Ciua,  South  Carolina.     June  30,  1887.) 

The  air-brakes  of  a  passenger  train  on  the  defendant  road  being  out  of 
iffder,  deceased,  whose  regular  employment  was  braking  on  a  freight  train, 
was  put  upon  the  train  to  use  the  hand-brakes.  It  was  night  when  the  run 
"was  made,  and  the  car  platforms  were  covered  with  ice.  While  the  train 
was  descending  a  jfrade  the  deceased  was  thrown  off  and  killed.  In  an 
action  by  his  administratrix  against  the  company,  M^,  that  there  was  no 
«vidence  of  negligence  that  would  warrant  the  submission  of  the  case  to  the 
Jury. 

Gen.  St.  S.  C.  or  $  1G39,  provides  that  a  railroad  company,  when  an  acci- 
dent occurs  on  its  line  whereby  any  one  is  injured,  shall  give  immediate  no- 
tice to  the  nearest  phyaiciao,  and  report  to  the  State  commissioner,  etc., 
nndar  penalty  of  fine.  Assuming,  but  not  deciding  that  the  negli^nce  of 
the  company  in  not  complying  wiih  the  statute  could  be  availed  of  in  a  suit 
for  damages  by  the  personal  representatives  of  a  brakeman  who  was  thrown 
from  one  of  its  trains,  and  left  to  freeze  to  death.  Edd^  that  the  fact  that 
the  brakeman  was  known  to  have  been  on  the  train  at  a  certain  point,  and 
was  first  missed  at  a  point  many  miles  distant,  was  not  sufficient  to  a&ectthe 
company  with  knowledge  of  the  fact  that  the  brakeman  bad  been  either 
killed  or  injured  by  an  accident  between  those  points,  especially  when  there 
was  no  evidence  whatever  that  any  accident  had  there  occurred  to  the 
train,  and,  on  the  contrary,  the  evidence  showed  that  the  train  ran  as  usual 
between  the  points,  with  notliing  exceptional  or  peculiar  to  attract  the  at- 
tentioQ  of  those  charged  with  its  management;  ana  hence  there  was  oo  fail' 
nre  on  the  part  of  the  defendant  company  to  comply  with  the  provisions  of 
the  statute. 

Appeal  from  circuit  court,  York  county. 

Digitized  bvGoOgIC 


382  ADKINS  V.  ATLANTA,   ETC.,   AIB  LIITE  K.   00. 

BivmUton  ds  Bailey  for  Adkins,  appellant. 
Duncan  tjh  Sanders  for  the  couipaiij,  respoadeut, 

McIyeb,  J, — Tliis  waa  an  action  brought  bj  the  plaintiff,  ai  ad- 
min idtratrix  of  Oliver  Adkine,  deceased,  to  recover  damages  for 
the  injury  snsCaitiGd  by  her  as  the  wife  of  the  deccaGed,  and  by 
hiB  father,  by  reason  of  his  deatli,  caused,  as  alleged,  by  tiie  negli- 
gence of  the  defendant  company.  The  testimony  shows  that  the 
Ftcn.  plaintiff's  intestate  was  in  the  employ  of  the  defendant 

as  brakeman  on  a  freight  train,  and  tliat  on  tlie  evening  of  the 
nintli  of  Jiumary,  1884,  he,  with  two  others,  were  detailed  to  take 
out  a  special  passenger  train  from  Charlotte  to  Atlanta  niider  the 
direction  of  a  conductor  by  tlie  name  of  Holt,  This  train,  it  seems, 
was  some  five  lionrs  beliind  its  schedule  time  in  renching  Cliarlotte, 
Uid  though  supplied  with  air-brakes,  the  same  were  not  in  work- 
ing order,  and  hence  it  became  necessary  to  nse  the  hand-bi-akes, 
to  whicli  duty  the  deceiised  and  one  Jarrott,  with  whom  he  had 
been  working  as  fellow-hrakeman  on  the  freight  train,  were  assigned 
The  niglit  was  excessively  cold,  with  continued  falls  of  snow, 
by  which  tiie  platforms  of  tiie  cam  were  covered  with  ice,  and  made 
very  slippery.  The  train  proceeded  witliont  accident  or  trouble, 
except  that  some  ineffectual  attempts  were  made  to  use  the  air- 
brakes, which,  however,  were  finally  abandoned  at  Seneca,  from 
which  point,  reliance  was  placed  solely  on  the  hand-brakes.  The 
deceased  was  last  seen  very  soon  after  leaving  Westminster,  bat 
it  did  not  appear  that  he  was  missed  until  the  train  reached  Tacoa, 
where  some  search  and  inquiry  was  made  for  him  in  the  baggage- 
ear,  where  he  ought  to  have  been,  by  his  fellow-brakeman;  Jarrott, 
who,  however,  thinking  that  he  had  gone  forward  to  ride  on  the- 
engine,  as  the  train  liands  sometimes  did,  made  no  further  search,, 
and  said  nothing  about  his  disappearance.  But  when  the  train. 
reached  G-ainesville,  and  it  had  been  ascertained  that  the  deceased 
was  not  on  the  train,  the  conductor  telegraphed  to  Tacoa  to  inquire 
about  him,  and  also  to  headquarters  in  Atlanta  reporting  his  dis- 
appearance. Not  being  able  to  learn  anything  of  him,  they  renewed 
their  inquiries  along  tlje  road  as  they  returned  that  evening  from 
Achmta,  but  still  were  unable  to  liear  anything  of  him,  !Nothing- 
was  heard  of  the  deceased  until  a  few  days  afterward, — the  circuit 
judge  saying  it  was  on  the  twelfth  of  January,  while  counsel  for 
appellant  contends  it  was  on  the  fifteenth, — when  his  dead  body 
was  found  lying  in  a  ditch  near  the  railroad  track  at  a  point  near 
the  lOi-mile  post.  It  seems  that  at  or  near  tliis  point  there  is  a 
steep  grade  and  a  reverse  curve  in  the  railroad  track,  in  passing 
which  tiie  deceased  was  thrown  or  fell  from  the  train.  The  body,  ■■ 
when  found,  was  frozen  stiff,  as  well  as  the  clothes  in  whicli  the 
deceased  was  dressed,  hut  his  Iiat  was  found  at  some  little  distance 
from  the  point  where  the  body  was  found  at  an  embankment,  and 


^d  by  Google 


MASTEE  AHD  SEBVAin>-EXCEPTIOKAL  DANflBBS.       283" 

hiB  clothes  and  slioee  were  covered  with  "shining  mica  sand,"  sim< 
ilar  to  that  found  in  the  embanktnent.  The  body  presented  no 
external  marks  of  iiijnry,  except  a  brnise  or  cut  over  ilie  riwhteye, 
and  there  was  no  eviJence  that  any  of  Iiis  bones  were  broken, 
thongit  it  does  not  appear  that  any  examination  except  of  tlie  most 
caenal  character  was  made.  The  hands  were  cintched  as  if  grasp- 
ing something,  "and  were  mnddy  with  shining  dirt."  The  body 
was  found  by  the  section  master  of  the  railroad  in  charge  of  that 
part  of  the  line,  and  his  hands,  and  after  being  dressed  in  a  new 
Bnit  of  ciotliGS  bought  from  a  neigiiboring  store,  and  paid  for  by 
the  railway  company,  was  sent  to  Charlotte,  and  thereafter,  being- 
provided  with  a  suitable  coffin,  forwarded  to  Citester  for  inter- 
ment. At  the  close  of  liie  plaintiffs  testimony  tlie  defendant 
moved  for  a  non-snit,  which  was  granted  upon  the  ground  that  the 
plaintiff  had  failed  to  adduce  any  evidence  tending  to  establish  tlie 
charge  of  negligence.  From  this  judgment. the  plaintiff  appeals 
npon  the  several  grounds  aet  out  in  the  record  which  need  not  be 
repeated  liere,  as  the  sole  question  for  us  to  consider  is  whether  tlie 
circuit  judge  erred  in  huldjjig  that  there  was  no  evidence  tending 
to  establish  the  cliarge  of  negligence. 

The- negligence  imputed  to  the  defendant  by  the  appellant  ia  of 
two  kinds:  first,  in  causing  the  disaster  by  negligent  conduct  of 
their  iigcnts;  second,  negligence  in  not  ascertaining  more  promptly 
the  condition  of  the  deceased  after  the  disaster  occuired,  and  con> 
tributing  to  his  relief. 

We  have  examined  the  testimony  carefully,  and  are  unable  to- 
discover  the  sligljtest  evidence  of  any  negligence  on  the  part  of  the 
railway  company,  or  any  of  its  employees,  which  eonld  by  any  po8- 
eibility  have  contributed  toward  causing  the  disaster 
complained  of.  There  is  no  testimony  tending  to  show  ob  MTOFDt 
that  there  was  any  want  of  skill  or  care  on  the  part  of  JEJ^-  ^ 
the  conductor,  the  engineer,  or  any  of  the  other  em-  ^o'""^'- 
ployees  in  the  managetnerit  of  the  train,  unless  it  be  on 
the  part  of  the  deceased  himself,  who,  when  rebnked  by  thecohdnct- 
or  for  not  putting  on  tiie  brake  with  which  lie  was  charged,  jnat  be- 
fore reaching  Westminster,  whore!)y  the  train  ran  past  tliat  station 
before  stopping,  and  accused  of  being  asleep,  made  no  denial  or 
reply.  But  even  this  occurred  befoi-o  the  accident  happened,  and' 
could  not  have  had  any  agency  in  cansing  it.  The  fact  that  the- 
air-brakes  were  not  in  working  order,  and  the  ineffectnal  attempts 
to  use  them,  cannot  possibly  Ije  regarded  as  negligence  contribu- 
ting to  the  injury;  for  the  very  fact  that  the  air-biiikes  were  out 
of  order  was  the  only  reason  why  the  decea.'<ed  and  his  fellow-br.ike- 
man,  Jarrott,  were  put  upon  the  train,  and  the  undisputed  testi- 
mony from  the  plaintiffs  own  witness  was  tliat  the  attempts  to  nse 
the  air-brakes  ceased  at  Seneca  before  the  train  reached  the  point 
where  the.  accident  occuired.      The  fact  that  the  deceased  was 


^d  by  Google 


384  ADKINS  V.   ATLANTA,  ETC.,  AIE  LINE  B.   00. 

transferred  from  liis  post  as  brakeman  on  a  f  reigbt  train  to  a  similar 
position  on  a  passenger  train  cannot  help  tlie  plaintiff;  for  all  tlie 
witnesses  examined  as  to  tliis  point  concur  in  saying  that  tlie  former 
position  was  more  dangerous  tlian  the  latter ;  and  the  facts  which 
they  state — that  tlie  brake  on  a  freiji^lit  train  is  operated  from  the 
top  of  the  cars,  where  there  is  no  railing  or  other  protection  to  the 
brakeman  to  keep  liira  from  falling,  or  being  tlirown  off  by  the 
motion  of  the  train,  while  tiia  brake  on  a  passeneer  train  is  oper- 
ated from  the  platform  of  the  car,  where  there  is  a  railing,  which 
serves  as  snch  protection— conclnsively  show  that  the  witnesses 
were  right  in  saying  that  the  post  to  wliicli  tlie  deceased  was  trans- 
ferred was  not  only  not  more,  bnt  actually  less,  dangerous  tiian  the 
position  for  which  he  was  regularly  employed.  But,  in  addition  ' 
to  this,  the  plaintiff's  own  testimony  not  only  shows  that  the  de- 
ceased vohintarily  assumed  the  duty  of  brakeman  on  this  train,  but 
that  he  was  anxious  to  do  so  ;  for  tliere  was  not  only  tlie  testimony 
of  both  Jarrott  and  Price  that  the  deceased  seemed  to  be  anxious 
to  go  as  brakeman  on  the  train,  which  is  objected  to  in  the  arpu- 
ment  as  merely  the  opinions  of  these  witnesses,  but  there  was  also 
this  distinct  statemerit  by  the  witness  Price,  in  speaking  of  tlie 
deceased  :  "  I  heard  him  say  he  was  glad  to  get  to  go  out,  as  he 
badn't  been  making  very  much  that  week,  and  we  were  all  glad 
to  make  a  run  of  that  kind ;"  giving  as  a  reason  that  they  were  paid 
by  the  run. 

Tlie  fact  that  the  platforms  of  the  cats  were  slippery  on  account 
of  the  ice  found  upon  them  cannot  be  imputed  as  negligence  to 
the  company  which  would  make  it  liable  for  the  disaster  which 
occurred  ;  for  that  was  a  defect  or  peril  wiiich  was  perfectly  obvi- 
ous to  the  senses,  the  hazards  from  which  the  deceased  voluntarily 
assumed.  As  was  said  in  Hooper  v.  Greenville  &  C.  B.  Co.,  21 
S.  C.  547,  adopting  the  language  of  Pierce  in  bis  work  on  Rail- 
roads; "A  servant  who,  before  the  injury,  had  knowledge  of  the 
defect  in  tlie  road  or  machinery,  or  who,  having  a  reasonable  op- 
portunity to  inform  himself,  ought  to  have  known  such  defects,  is 
presumed,  by  remaining  in  the  corapanv's  service,  to  have  assumed 
the  risks  of  snch  voluntary  exposure  of  liimself,  and  cannot  recover 
for  an  injury  resulting  therefrom.  ,  .  .  This  rule  applies  with  spe- 
cial force  where  the  defect  or  danger  is  obvious  to  the  senses." 
Now,  certainly,  the  slippery  condition  of  the  platform  was  per- 
fectly obvions  to  the  senses,  and  the  deceased  must  necessarily  be 
regarded  as  having  voluntarily  assumed  tbe  risk  incident  thereto. 

Again,  it  is  nrsed  that  the  faiUire  of  the  engineer  to  give  the 
signal  to  put  on  tlie  brakes  at  Chaugee  hill  was  such  negligence  as 
would  make  tlie  company  liable.  In  the  first  place,  thei'e  is  no 
evidence  that  the  engineer  failed  to  give  the  signal.  The  most 
that  can  be  said  is  that  the  witnesses  examined  as  to  this  point 
could  not  say  whetlier  the  signal  was  given  or  not.     In  addition  to 


^d  by  Google 


HA8TEB  AND   SERVANT — EXCEPTIONAL   DANGERS.       28& 

this,  it  ie  difficult  to  conceive  what  agency  the  failure  to  give  the 
signal  could  possibly  have  in  producing  the  kind  of  accident  whicK 
actnally  occurred.  On  the  contrary,  it  would  seem  that  the  failure 
to  "  blow  on  brakes"  would  have  iiiduced  the  deceased  to  have  re- 
mained in  the  baggage  car,  where  he  would  have  been  safe  from 
the  disaster  which  actually  did  liappen  ;  for,  if  he  had  remained 
in  the  baggage  car,  he  could  not  possibly  have  been  thrown  or  have 
fallen  from  tiie  platform  outside,  as  it  is  assumed — and  very  prop- 
erly aeaumed— he  must  have  done.  So  tliat,  even  if  there  were 
any  evidence  (althongh  we  have  not  been  able  to  discover  anyV 
tliat  the  engineer  neglected  to  give  the  signal  for  "down  brakes," 
this  would  not  make  the  company  liable  for  the  disaster  which  act- 
ually  did  occur,  as  there  could  be  no  possible  connection  between 
the  negligence  proved  and  the  injury  suBtaii)ed  ;  for,  as  was  held  in 
Glenn  v.  Greenville  &  C.  It.  Co.,  21  S.  C.  466,  to  recover  damages 
for  an  injury  done  to  a  party  by  another,  the  plaintiff  must  not 
only  produce  evidence  of  negligence  by  snch  other,  but  also  that 
the  injury  comphiined  of  was  the  result  of  such  negligence.  Now^ 
if  it  had  appeared  that,  by  reason  of  the  failure  of  the  engineer 
to  give  the  proper  signal  to  pnt  down  the  brakes,  the  train  had 
run  down  the  eteejr  grade,  and  around  the  curves,  at  ench  an  nn- 
dufl  rate  of  speed  as  to  throw  the  train  fi-om  the  track,  whereby 
the  deceased  was  injured  or  kiNed,  then  that  wonid  have  been  a 
case  in  which  the  injury  actnally  sustained  could  have  been  re- 
ferred to  the  negligence  proved.  But  in  this  case,  even  assuming, 
for  the  sake  of  the  argument,  that  the  engineer  failed  to  give  the 

E roper  signal,  we  are  unable  to  perceive  any  possible  connection 
etween  such  negligence  and  the  disaster  which  actnally  occurred. 
In  addition  to  all  this,  the  testimony  shows  that  the  deceased  was 
distinctly  instructed  by  liia  more  experienced  feliow-brakeman, 
Jarrott,  when  to  put  on  the  brakes  on  Changee  hill,  and  that  cer- 
tainly was  more  effective  than  a  signal  by  the  blowing  of  a  whistle. 
Aa  we  have  said,  we  are  unable  to  discover  any  evidence  whatever 
tending  to  show  any  negligence  which  could  have  possibly  had  any 
agency  in  causing  the  disaster  complained  of. 

Our  next  inquiry  is  whether  there  was  any  evidence  of  negli- 
gence on  the  part  of  the  company  or  its  agents  in  making  proper 
efforts  to  find  tlie  deceased  after  the  disaster  occurred,  and  in  min- 
istering to  his  relief.  On  this  branch  of  the  case  the 
oonnseTfor  appellant  relies  upon  the  provisions  of  sec-  USwaTnoTKi 
tion  1525  of  General  Statutes,  which  reads  as  follows:  SJitiihj™?' 
"Every  railroad  corporation  shall  cause  immediate  no- 
tice of  any  accident  which  may  occur  on  its  road,  attended  with 
injury  to  any  person,  to  be  given  to  a  physician  most  accessible 
to  the  place  of  accident,  and  shall  also  give  notice  witliin  twenty- 
four  hours  to  the  railroad  commissioners  of  any  anch  accident,  or  of 
any  accident  falling  within  a  description  of  accidents  of  which  said 


^d  by  Google 


286  ADKINS  V.   ATLANTA,   ETC.,    AIR  LINE  B.   CO. 

'Commissioners  may  by  ^neral  regnlation  require  notice  to  be  given. 
For  eacli  omission  to  give  siicli  notice  the  corporation  shall  foi-feit 
-a  sum  not  exceeding  one  hundred  dollars."  It  will  he  observed 
that  a  specific  penalty  for  a  failnre  to  comply  with  the  provisions 
■of  this  section  is  prescribed,  but  by  wliom  to  be  i-ecovered, — 
wlietlier  by  the  State,  tiie  railroad  commissionei's,  or  by  the  party 
injured, — is  not  stated,  and  ther-efore  it  might  be  a  qnestion 
wlietlier  this  section  hue  any  application  to  a  case  like  the  present, 
where  the  action  is  for  dumagea.  But  waiving  this,  inaEuuich  as 
the  question  was  not  made  in  this  case,  and  assuming  for  the  pur- 
pose of  this  inquiry  only,  without  deciding  either  one  way  or  Ciie 
■other,  tliat  a  failure  to  comply  witli  the  provisions  of  this  section 
would  constitute  such  negligence  on  tlie  part  of  a  railraad  corpora- 
tion as  would  entitle  the  party  injured,  or,  in  case  he  was  billed, 
his  administrator,  to  recover  damages  for  the  injury  tliereby  re- 
Btrained,  let  us  inquire  wlietlier  there  was  any  evidence  in  this 
■case  of  a  failure  on  the  part  of  the  defendant  company  to  comply 
with  the  provisions  of  this  section  of  the  General  Statutes. 

Counsel  for  appellant  argues  that  "this  provision  involves  imme- 
diate search  for  the  injured  pei-son,  and  the  burden  of  proof  is 
thrown  upon  the  company  to  show  extraordinary  diligence  in 
using  every  resource  at  its  command  to  snccor  the  injnred  person." 
Eut,  to  say  nothing  of  the  fact  that  we  are  unable  to  discover  any- 
thing in  the  act  throwing  the  bnrden  of  proof  upon  the  railroad 
corporation,  the  provision  necessarily  involves  the  idea  thnt  the 
corporation  knew,  or  at  least  ought  to  have  known,  that  there  has  been 
an  accident  attended  with  injury  to  some  pei-son  ;  for  certainly  one 
cannot  be  regarded  as  in  fault  for  not  giving  notice  of  a  fact 
which  he  neither  knew,  nor  ought  to  have  known.  Now,  in  this 
■case  thei-e  is  no  evidence  that  the  company  knew  that  there  had 
been  any  accident  attended  with  any  injury  to  a  person  nnti]  ihe 
■dead  body  was  discovered,  when  ever^'thine  seemed  to  have  been 
■done  by  the  employees  of  the  comi»any  wliich  the  ordinary  feel- 
ings of  humanity  would  dictate.  But  it  is  urged  tliat  the  com- 
pany was  negligent  in  not  instiiuting  prompt  and  proper  search  for 
the  body  of  deceased  as  soon  as  it  was  discovered  that  he  was  miss- 
ing from  the  train.  It  will  be  remembered,  however,  that  there 
was  no  evidence  tending  to  induce  a  belief  that  any  accident  had 
-occurred.  The  train  had  not  run  over  an  animal  or  other  obstiuc- 
tion.  It  had  not  been  thrown  off  the  track.  In  fact,  nothing 
whatever  had  occurred  to  excite  a  suspicion  that  any  one  had  been 
injured.  According  to  ti>e  testimony,  t!ie  train  had  gone  down 
the  gi'ade,  and  around  the  curves  at  CliaiiEfee  hill  in  the  usual  way, 
with  nothing  to  attract  the  attention  of  tliose  who  were  in  charge 
of  it  as  indicating  that  there  was  anything  unusual, — not  even  any 
evidence  of  any  unusual  jolting  or  swaying  of  the  cars  in  going 
.ai-cund  those  curves, — Jtothiiig  whatever  bat  the  simple  fact  that 


^d  by  Google 


MASTER  AND   SEEVAMT — EXCEPTIONAL   DANGEEB,        287 

it  was  eventnally  discovered  that  tlie  deceased  was  not  on  tlie  train. 
But  at  what  precise  point  on  tlie  road  this  discovery  was  made  does 
not  distinctly  appear ;  for,  altlioiigli  he  was  missing  from  liis  proper 
place  when  the  train  readied  Tacoa,  it  is  very  manifest  tlnit  no  one 
snspected  then  that  he  had  been  thrown  or  fallen  off  at  Cbangee 
hil),  for  the  condnctor  at  first  supposed  that  he  had  been  left  at 
Westminster;  bnt,  when  inforinea  by  Jarrott  that  he  had  seen 
him  after  leaving  that  point,  they  evidently  then  concluded  that  lie 
had  gone  forward  to  ride  on  the  engine.  But  when  the  train 
reached  Gainesville,  and  the  deceased  could  not  be  found  on  any 
part  of  the  train,  theconductor  at  once  commenced  making  inqni- 
ries  by  telegraph  to  Tacoa,  and  perhaps  other  points,  notifying  the 
headquarters  in  Atlanta  of  his  disappearance.  These  inqniries 
were  repeated  along  the  road  upon  the  retnrn  trip,  and  nuthing 
was  heard  of  him.  So  that  the  inquiry  is  narrowed  down  to  this ; 
Ought  the  company  to  have  known  that  the  deceased  had  fallen  or 
been  thrown  from  the  train,  whereby  he  was  injured  or  killed, 
simply  because  he  was  known  to  bean  the  train  at  Westminster, 
and  was  not  on  the  train  when  it  reached  Gainesville,  or  whatever 
other  subsequent  point  on  the  road  it  was  discovered  that  he  was 
missing  from  the  train,  in  the  absence  of  any  evidence  whatever 
tliat  anything  had  occurred  to  the  train  in  the  interval  between 
those  points  calculated  to  induce  a  belief  that  a  person  had  been 
thrown  from  the  train)  The  fact  that  an  employee  of  a  railroad 
company  is  known  to  be  on  the  train  at  a  certain  point,  and  is  miss- 
ing from  the  train  at  a  subsequent  point,  many  miles  distant,  is  cer- 
tainly not  sufficient  to  affect  the  company  with  knowledge  of  the 
fact  that  such  person  was  either  killed  or  injured  by  an  accident 
on  the  road  between  those  two  points,  especially  wlien  tiiere  is  no  evi- 
dence wliatever  that  any  accident  had  occurred  to  the  train  in  the 
interval  between  such  points,  and,  on  the  contrary,  the  evidence 
shows  that  the  train  ran  as  usual  between  those  points,  with  noth- 
ing exceptional  or  peculiar  to  attract  the  attention  of  those  charged 
with  tlie  management  of  the  train.  The  absence  of  a  person  under 
such  circumstances  might,  and  most  naturally  would,  be  accounted 
for  in  some  other  way  than  by  supposing  that  he  had  been  injured. 
But,  in  addition  to  this,  the  testimony,  in  our  judgment,  adduced 
by  the  plaintiff  herself,  so  far  from  tending  to  snow  that  there  was 
any  undue  delay  in  prosecuting  the  search  for  the  body  of  the  de. 
ceased,  shows  the  contrary.  The  deceased  went  out  on  the  ti-ain 
which  left  Charlotte  about  9  o'clock  in  the  evening  of  the  ninth  of 
January,  and  the  evidence  shows  that  the  disaster  which  cost  iiim 
his  life  occurred  in  the  early  hours  of  the  morning  of  the  tenth, — 
between  12  o'clock  and  daylight.  In  addition  to  the  inquiries 
made  by  the  condnctor  by  telegraph  that  night,  or  rather  morning, 
inqniries  were  made  along  the  road  on  the  retnrn  trip  of  the  tram 
on  the  evening  of  the  tenth,  and  the  testimony  of  the  plaintiff's 


^d  by  Google 


288  ADKINS  V.   ATLANTA,   ETC.,    AIR  LINE  B.    CO, 

witneBB  Mason  tends  to  sliow  that  the  body  was  fonnd  some  time 
during  that  day ;  for  after  saying  that  Ite  Iiad  sold  a  suit  of  ctotlies 
to  one  Williams,  an  agent  of  tlie  railway  company,  as  a  bnrial  BDit 
for  Oliver  Adkins,  wliicli  was  paid  for  by  tlie  company,  he  says: 
"  Tlie  said  snit  was  sold  on  the  tenth  January,  1884, 1  think,  and 
charged,  by  order  of  L.  S.  Williams,  to  Richmond  and  Danville 
R.  Co.  on  the  twelfth  Jannary,  1884-."  Again,  he  eays:  "I  saw 
the  dead  body  at  104-niile  post  on  morning  tenth  Jannary,  1881, 1 
think;"  and  then  goes  on  to  speak  of  seeing  Williams  and  the 
otiier  employees  dressing  the  body  in  the  new  snit  of  ciotlies.  The 
only  testimony  tending  to  show  that  tlie  dead  body  was  not  fonnd 
nntil  the  15th,  (if  indeed  it  be  siicli.)  as  contended  for  by  counsel 
for  appellant,  is  that  of  Kennedy,  the  brother-in-law  of  deceased, 
who  says:  "I  think  the  dead  body  of  Adkins  was  retnrned  to 
Charlotte  on  January  15,  1884."  Tiiis,  besides  being  indefinite,  is 
entirely  inconsistent  with  the  testimony  of  Mason,  the  merchant 
who  sold  the  clothes,  and  who  was  asked  to  speak  from  his  books, 
and  who  said  distinctly  that  the  clothes  were  charged  to  the  com- 
pany on  the  12ch,  though  they  may  have  been  actnalty  purchased 
on  the  10th,  So  that  we  think  it  clear  that  the  circuit  jndgo  was 
fully  justified  in  assuming  that  the  body  was  found  at  least  as  early 
as  the  12i:h ;  for  it  is  hardly  possible  that  a  suit  of  clothes  in  which 
to  ai-ray  tiie  dead  body  for  burial  would  have  been  bought  before 
the  body  was  found. 

The  case  of  Northern  Cent.  R.  Co.  v.  State,  29  Md.  420,  to 
which  oar  attention  was  especially  invited  by  counsel  for  appellant, 
differs  from  the  one  under  consideration  in  this  material  i-espect : 
There  the  fact  was  clearly  shown  that  the  company  had  full  knowl- 
edge that  the  deceased  had  received  serious  injuries  by  its  train, 
which  proved  to  be  mortal,  notwithstanding  which  he  was  locked 
lip  in  a  building  at  the  station,  and  left  all  night  without  any  atteii- 
tion  whatever,  either  medical  or  otherwise. 

So  that,  even  if  it  was  possible  to  assume — which  it  would  be 
difficult  to  do  upon  the  very  slender  testimony  presented  in  this 
case — that  the  deceased  was  not  killed  by  tlie  fall  from  the  train, 
but  only  injured,  and  that  he  crawled  from  the  spot  where  he  fell 
to  tlie  point  where  liis  body  was  found,  and  was  there  frozen  to 
death,  and  that  with  timely  aid,  which  it  was  the  duty  of  the  rail- 
way company  to  render,  liis  life  might  have  been  saved,  etill,  in 
the  absence  of  any  evidence  that  the  company  knew,  or  ought  to 
have  known,  that  he  had  been  injured,  it  would  be  impossible  to 
hold  the  company  liable  for  not  rendering  aid  not  known  to  be 
needed. 

The  judgment  of  this  court  is  that  the  judgment  of  the  circuit 
court  be  affirmed. 

Simpson,  0.  J.,  and  McGowan,  J.,  concur. 
See  Wonnell  t.  Maine  Central,  etc.,  R.  Co.,  and  note,  mpra,  p.  378. 


^dbvGooglc 


MAKTW.H.  AND    SEKVANI — FELIiOW-SEBVAHT. 


Birr's  Admx. 


IiOnisTiLi.B  AND  Nabhtillb  B.  Co. 

^Adtancd  Com,  Emtwiby.    Juna  9,  1SS7.) 

After  a  train  on  the  defeudant  ro&d  h&d  arrived  in  the  yards  at  Naflhrllle, 
and  while,  according  to  ihe  evidence,  it  nas  doubtful  whether  it  woa  under 
tbe  control  of  the  cuoductor  or  Che  jard-maater,  the  conductor  ordered  the 
deceased,  the  Tureman  of  the  car- repairers,  to  go  under  a  car  aod  repair  & 
brake,  and  while  he  was  so  engaged,  and  this  was  known  to  the  conductor, 
the  train  started  and  the  car-repairer  was  run  over  and  killed.  In  an  action 
by  his  administratrix  to  recover  damages  of  the  company  for  causing  his 
death,  hdd — 

1.  That  if  the  conductor  was  in  charge  of  Uie  train,  the  company  is  lia- 
ble ander  the  rale  of  reipondaat  tuperiot. 

2.  That,  as  it  was  doubtful  who  had  charge  of  the  train,  and  if  it  wss  the 
yard  master  the  c<1mpanj  was  not  liable,  he  being  a  fellow-servant  of  da- 
ceawd,  it  waserror  for  the' court  to  order  a  verdict  for  defendant  on  the 
ground  that  the  train  was  in  charge  of  the  yard-master. 

Appkal  from  circuit  conrt,  Warren  county. 
Edward  W.  Bines,  Bodes  &  Settle,  and  Wright  ds  MoEl^w/ 
for  appellant. 

Wm.  Lindsay  and  Mitohdl  ds  DuBose  for  appellee. 

Holt,  J, — Benjamin  F.  Ritt,  wlule  in  the  employ  of  the  appel- 
lee, tlie  LoDisville  &  Nashville  It.  Co.,  as  foreman  of  the  car- 
repuirerE  in  its  yard  at  Bowling  Green,  Kentucky,  lost  his  life  on 
the  night  of  May  27,  1881,  under  tlieee  circumstances:  rtaa. 

The  road  sonth  of  said  plaee  to  Nashville,  TeiinesEee,  is  one  di- 
vision, and  tliat  running  north  of  it,  to  Louisville,  Kentucky,  is 
another;  making  Eowling  Green  what  is  known  as  a  terminal 
point,  and  at  which  the  engine,  caboose,  and  entire  crew  of  all 
throagh  freight  trains  are  changed.  Wiien  sncli  a  train  reaches 
there,  those  m  charge  of  it  are  relieved,  and  the  yard-maeter  takes 
charge  of  it.  It  is  his  duty  to  superintend  the  making  np  of 
tmins,  and  the  movements  of  Che  cars  and  engines  in  the  yard. 

It  is  tlie  dnty  of  tiie  foreman  of  the  car-repairers,  togetiier  with 
his  assistants,  to  examine  the  incoming  and  outgoing  cars,  and 
make  all  needful  repairs.  In  the  case  or  a  through  tram,  the  new 
conductor  and  fresh  crew,  who  are  to  take  charge  of  it,  and  con- 
dact  it  to  its  destination,  are  required  to  be  at  the  yard  a  certain 
length  of  time  before  the  time  hxed  for  its  departure,  and  it  is  the 
duty  of  the  conductor,  before  leaving,  to  inspect  the  train.  If  the 
Bl  A.  &  E.  K.  Cas.— le 


^d  by  Google 


290      RITT'S  ADMX.  v.  LOUISVILLE  AND  NASHVILLE  B.  CO. 

foreman  of  tlie  car-repairers  learns  in  any  way  tiiat  a  car  is  in  bad 
condition,  he  must  repair  it;  and,  in  case  tliis  will  require  more 
time  than  tlie  stoppage  of  tlie  train  permits,  he  reporte  to  the  yard- 
master,  and  the  car  is  taken  from  tlie  train,  and  sent  to  the  repair- 
shop.  The  yard-master  and  the  foi-eman  of  the  car-repairei'S  are 
ill  the  main  sovereij^ii  in  their  particular  sphere  of  lalwr,  but  the 
one  may  call  apon  the  other  to  do  certain  tilings.  So,  too,  it  being 
the  duty  of  the  conductor  to  see,  before  his  train  starts  forward, 
that  it  IS  in  proper  condition,  it  appears  to  necessarily  follow  that 
he  may  direct  any  necessary  repair  that  may  be  needed,  and  to  this 
end  may  call  upon  the  foreman  to  have  it  done.  An  employee  in 
'  one  department  of  the  service  may,  in  some  states  of  case,  or  an- 
der  certain  circiimstances,  command  the  servicea  of  an  einplojee  in 
another  department.  Louisville  &  N.  R.  Co.  v.  C  >llins,  2Dnv,  115. 
If  a  conduct  or,' just  as  he  is  ready  to  start  npon  a  jonrney,  diecoverB 
a  defective  brake,  he  should  surely  have  tlie  power  to  order  its  re- 
pair. 

Upon  the  night  of  the  accident  a  through  freight  train  arrived 
from  Nashville.  It  was  switclied  upon  a  side  track,  in  order  that 
other  trains  might  pass  npon  the  main  track  during  the  25  min- 
utes' stop  there.  The  crew,  including  the  condnctor  that  had 
brought  it  in,  left  it,  tlie  new  one  ana  new  condnctor,  who  were 
to  talce  it  on,  being  there  ready  to  enter  upon  tlie  performance  of 
the  duty.  When  the  train  first  arrived,  the  deceased,  as  foreman, 
with  one  of  his  assistantE,  had  gone  along  the  train  and  inspected 
it.  Before  the  accident  occurred,  all  necessary  changes,  if  any,  in 
tlie  composition  of  the  train  had  been  made, — in  the  language  of 
the  witnesses,  was  "made  up."  The  new  condnctor  had  passed 
along  it.  and  inspected  it,  and  nothing  remained  to  be  done  bv 
him  before  starting  save  to  receive  Itis  orders  at  the  telegmpu 
office  and  receipt  for  them.  At  this  juncture  he  was  informed  by 
the  conductor  who  had  brought  the  train  in  that  the  brake  upon 
the  rear  was.  not  in  good  condition.  The  yard-master  appears  to 
have  been  present  at  this  time;  but,  instead  of  referring  tne  mat- 
ter to  him,  the  new  conductor  souglit  the  deceased,  and  informed 
him  of  the  tronble,  and  told  him,  in  Bnbstanee,  to  attend  to  it. 
He  testifies  that  he  "  requested  "  him  to  see  to  it.  A  fair  con- 
strnction  of  what  was  said  makes  it  amount  to  a  direction  to  attend 
to  it ;  and,  if  the  condnctor  was  then  in  charge  of  the  train,  the 
doctrine  of  respondeat  superior  applies.  If  it  and  its  movements 
were  then  subject  to  his  order,  he  via%pro  hae  "oice  the  superior  of 
the  deceased,  and  the  representative  or  alter  ego  of  the  company. 
They  went  together  to  the  ear.  The  deceased  remarked,  in  sub- 
stance, that  he  could  fix  the  br.ike  if  the  train  did  not  starL  The 
reply  of  the  conductor  was:  '"I  have  not  got  any  orders  yet;  I 
am  not  ready  to  go,"  and  tiiereupon  the  deceased  went  under  the 
car.     In  a  few  minutes  the  signal  sounded  for  backing  the  train. 


^d  by  Google 


MASTER  AND    SERVANT — FELL0W-9EEVANT.  29i 

and  it  at  once  did  so,  and  Eitt  wae  ran  over  and  killed.  Hie  ad- 
ministnitrix  now  eeeks  to  i-ecover  damages  upon  the  ground  that 
bis  death  was  the  I'eeiilt  of  tho  toilful  neglect  of  the  appellee. 

After  the  testimony  in  her  behalf  had  been  uSm'ed  in  the  lower 
court,  it  peremptorily  instrncted  ilie  jury  to  find  for  the  company  ; 
and  of  tills  she  now  eoinplains.  Tliis  notion  of  the  court  was  based 
upon  the  "round  that  the  conductor  liad  no  control  of  the  train  in 
in  the  yard ;  and  its  movements,  save  when  it  started  upon  its  joni- 
ney.  were  entirely  subject  to  tlie  orders  of  the  ya rd -in aster ;  tliat  the 
conductor  had  nothing  to  do  with  tliein  save  to  give  the  order  to 
move  out  after  lie  received  his  orders  ;  that  the  entire  testimony 
showed  this  to  be  the  case ;  and  that  there  was  a  total  abstnce 
of  any  evidence  even  lending  to  show  otherwise. 

As  this  record  stands,  those  immediately  in  charge  of  the  engine 
at  the  time  of  the  accident  are  not  chargeable  with  neglect,  because 
they  had  no  notice  tliat  any  one  was  under  the  train 
It  also  appears  that  neitlier  the  conductor  nor  the  de-  ^2o,  "^ 
ceased  knew  that  the  engine  had  been  attached  to  the  Sotfobjo™' 
train.  A  cnrve  in  the  track  prevented  them  from  see- 
ing it,  and  they  had  not  been  informed  of  it.  It  was  the  custom, 
when  a  ear-repairer  went  under  a  car,  for  the  foreman  or  one  ot 
his  assistants,  to  notify  those  in  charge  of  the  engine  of  it,  so  that 
it  would  not  move  until  he  came  from  under  it.  It  is  nrged  that 
the  deceased  was  not  a  subordinate ;  that  he  was  the  foreman  of  the 
car-repuirers;  and  that  it  was  his  duty,  upon  the  occasion  when  he 
was  killed,  to  have  given  this  notice,  and  thus  have  pi-eventcd  the 
accident.  This,  however,  is  not  so  if  the  conductor  was  at  the  time 
in  charge  of  the  train,  and  for  the  occasion  his  superior.  If  so,  he 
liad  a  right  to  rely  npon  his  seeing  that  the  train  did  not  move, 
and  that  he  was  protected  in  the  hazardous  duty  which  he  had 
been  directed  to  perform.  When  he  went  under  the  car,' none  of 
bis  assistants  wei'e  at  hand;  the  conductor  was  present;  and,  while 
what  the  latter  said  related  to  the  car  startingon  its  journey,  yet  it 
is  fair  to  presume  that  tiie  deceased  risked  himself  under  the  car 
owing  to  tlie  presence  of  the  conductor  and  what  he  said  to  him. 
If,  ill  point  of  fact,  the  conductor  was  then  in  charge  of  the  train, 
if  he  then  was,  for  the  occasion,  the  superior  of  the  deceased,  then, 
when  he  directed  him  to  go  under  the  ti'ain  to  make  the  repair, 
thus  exposing  him  to  danger,  it  was  his  duty  to  see  that  he  was 
protected.  If  a  su^ierior  orders  a  subordinate  into  a  place  of  peril, 
it  is  his  duty  to  protect  him,  and,  in  the  performance  or  omission 
of  this  duty,  the  superior  represents  tlie  principal.  The  attitude 
which  tho  conductor  then  occupied  was  a  question  of  fact  to  be  de- 
termined  from  all  the  testimony  and  circumstances  in  evidence. 

It  is  not  proper  for  us  to  review  the  testimony,  or  give  an  opiu< 
ion  of  the  weight  to  which  it  may  be  entitled.  It  is  sufficient  to 
say  that  it  was  tlie  duty  of  the  conductor  to  iuspect  the  train  and 


^d  by  Google 


293      PETERSON  V.  CHICAGO  AND  NOBTHWESTEKN  B.  CO. 

have  any  necesaary  repair  made;  He  eeitainly  liad  charge  of  it 
for  tlie  purpose  of  piittitie  it  in  order  for  the  journey ;  it  wa» 
"made  up;"  and  some  or  the  witiieseee,  say  in  substiitice,  that 
wlieu  this  lias  beea  done,  and  the  conductor  liae  inspected  it,  and 
taken  the  numbers  of  the  ail's,  and  tiie  train  is  ready  to  go,  that  it 
is  Itnown  as  "  his  train,"  and  is  nnder  his  control,  subject  to  change 
or  stoppage  while  in  tiie  yard  by  the  yard-master.  Tliei-e  appears 
to  be  a  time  upon  ench  an  occasion  when  it  may  be  questionable 
who  has  control  of  a  train.  There  is  certainly  good  reason  for  the 
Viird-master  having  control  of  the  movements  of  the  cars  in  a  yard 
where  there  may  be  various  trains  moving,  and  at  the  same  time; 
but  a  state  of  case  may  arise  when  it  is  difficult  to  tell  whether  a 
train  yet  remains  under  his  control,  or  has  passed  under  that  of  the 
conductor,  or  is  at  least  in  his  charge,  subject,  perhaps,  to  inter- 
ference by  the  yard-master.  Whetlier  this  had  occurred  in  this 
instance  wag  a  question  of  fact,  to  be  gathei'ed  from  all  the  evi- 
dence and  circii instances  shown  by  it;  and  without  further  com- 
ment, as  the  case  must  be  retried,  it  seems  to  ns  that  snch  a  stale  of 
case  was  presented  that  the  question  should  have  been  allowed  to  go- 
to the  jury.  Tliere  was  not  an  entire  absence  of  testimony  tending 
to  sliow  that,  when  the  deceased  met  his  fate,  the  conductor  was 
not  in  charge  of  the  train  ;  and  any  doubt  upon  thequestion  should 
be  resolved  in  favor  of  the  right  of  the  jury  to  pass  upon  it. 

tTndgnient  reversed  and  cause  remanded  for  a  new  trial  consist* 
ent  witli  this  opinion. 

Injury  to  Car  Repainr. — See  next  cue  and  note. 


ChIOAQO    AMD   NOHTHWESTEBK   R.   Co. 

(Advauet  Caie,  Michigan.     OOober  S,  1887.) 

The  defendant  railroad  company  issued  an  order  directing  all  car-inapect- 
ore  and  repair-men,  berore  going  between  or  noder  an;  cars,  to  place  the 
red  signal  flag  on  the  end  uf  the  car  or  cars  in  the  direction  from  which  a 
train  or  engine  could  approach,  and  all  train-men  were  ordered  not  to  back 
against  or  couple  onto  any  car  while  such  signal  was  displayed.  The  plaia- 
tifC,  a  car-repairer,  was  injured  vrhile  worlcing  under  a  car,  owing  to  the 
negligence  of  a  foreman  in  failing  to  remove  the  signal  flag  from  the  end  of 
the  train  where  plainlifF  was  working  to  the  end  of  a  second  train  which  had 
been  placed  near  the  first  one,  and  the  negligence  of  the  engineer  of  a  switch 
engine  in  uncoupling  certain  cars,  which  were  in  motion,  from  his  engine 
BO  that  they  struck  the  second  train  which  in  turn  struck  and  set  in  motion 
the  train  under  which  plaintiff,  was  working,  whereby  he  waa  injured.  In 
an  action  against  the  railroad  company  for  damages,  htld,  that  toe  general 


MASTER   AND   SERVANT — FELLOW-SKIIVAST,  993 

order  of  defendant,  if  enforced  and  respected,  was  sufficient  protection  to 
emplo;«ea;  that  U  tbe  injuriea  were  the  reault  of  tbe  neeligeDca  of  plaio- 
tifTa  fellow  serranti,  aod  there  being  no  evideace  that  they  were  iiicomp»- 
tent,  plaintiff  could  not  recover. 

Erbor  to  circuit  conrt,  Marquette  oonnty. 
Hayden  i&  Xoung  for  plalulifE. 

Horse,  J. — Tlie  plaintiff  ie  a  native  of  Sweden,  and  on  tbe  6tb 
day  of  June,  1884,  the  date  iie  was  injured,  about  27  jeare  of  age. 
He  wiiB  employed  by  tlie  defendant  as  a  car-repairer,  and  worked 
in  sncli  employment  for  it  from  Jive  to  six  weeks  before  he  was 
hart.     He  was  liired  by  one  Matthews,  who  was  the  fac™. 

boss  carpenter  of  the  defendant.  Mattiiews  directed  him  to  report 
to  Jolm  Carlson,  wlio  was  foreman  of  a  gang  of  car-repairers.  He 
vas  told  tliat  Curlson  would  show  biin  what  to  do.  lie  had  never 
worked  at  car-repairing  or  any  other  labor  about  railroads  before. 
He  had  been  in  this  country  lees  than  two  years,  and  understood 
but  little  of  the  English  language.  lJ))on  his  i-eporting  to  Carlson, 
lie  was  given  a  tool-box,  and  set  to  work  repairing  cars;  putting 
in  bolts,  plates,  and  the  like  items  of  repair.  He  testified  tiiat  the 
■only  instructions  or  warning  given  him  was  that  he  slionld  never 
go  under  the  ears  "  when  the  red  flag  was  not  on." 

The  accident  wliich  occasioned  the  injury  for  which  the  plaintiff 
seeks  to  recover  damages,  in  this  suit,  occurred  in  the  lower  yard 
of  the  defendant  at  Escanaba,  where  are  located  tbe  ore-<Jocks 
from  which  tbe  iron  ore  mined  near  there  is  loaded  into  vessels. 
There  were  in  this  yard  10  li-acka,  all  of  which  were  used  more  or 
less  as  repair  tracks.  The  method  of  doing  business  in  the  yai-d 
■WHS  substantially  as  follows ;  After  the  loaded  cars  bad  been  run 
■down  from  the  docks,  they  were  switched  onto  side  tracks,  and 
were  tlien  inspected  by  the  repairers.  The  ears  that  were  too 
much  damaged  to  be  repaired  upon  tlie  tracks  wera  marked  "  B. 
■O."  (meaning  bad  orden,  and  were  removed  to  tbe  shops  before 
the  train  started  out.  Tlie  others  needing  repair  were  attended 
to  while  standing  on  the  repair  tracks.  Those  same  tracks  were 
.also  used  for  making  up  trams.  The  repair-men  were  furnished 
with  red  flags,  one  of  wliich  was  to  be  placed  at  the  head  of  the 
train  looking  towards  tlie  switch,  and  tbe  train-men  were  instructed 
in  no  case  to  rnn  cars  or  engines  against  snch  cars,  as  tlie  signal  of 
tbe  red  flag  so  placed  indicated  that  such  cars  were  undergoing 
repair  upon  the  track.  There  were  two  repair  yards;  one  culled 
tbe  upper,  and  the  other  tbe  lower,  yard.  Tbe  foreman  of  both 
^arda  was  Thomas  Leith.  In  his  absence  John  Carlson  was  boss 
of  the  lower  yard. 

On  the  day  of  the  injury  from  30  to  35  cars  were  run  in  from 
tbe  ore-docks  upon  one  of  these  tracks,  known  as  track  No.  4. 
Tbey  were  backed  iu  from  the  nortli,  and  bad  at  their  south  and 


^d  by  Google 


204      PETERSON  V.  CHICAGO  AND  NOBTHWESTEEN  B.  CO. 

rear  end  a  caboose.  FeterBoii  had  been  at  work  all  day,  commenc- 
ing at  7  oVlock  in  tlie  inoriiius.  The  car-repairere,  including 
plaintiff,  abont  3  o'clock  ill  the  afternoon  liad  jnst  completed  re- 
pairing cars  on  a  train  standing  upon  another  track,  when  Carleon 
said, "  Come  on,  boys,"  and  led  the  men  to  the  care  on  track  No.  i. 
He  said,  "  Boys,  hurry  up  now ;  we  liave  to  leave  in  half  an  hour ;" 
and  put  a  red  flag  on  the  front  car  of  those  then  on  the  track. 
The  men  went  to  work  at  once,  and  as  fast  as  they  conld.  Peter- 
son {iniBlied  his  work  on  one  car,  and  passed  by  darlson,  who  was 
lixing  a  bnike-beam  on  one  of  the  cars,  and  went  to  work  on  an- 
other car.  He  was  sitting  on  the  gronnd  nnder  the  car,  fastening 
the  nots  upon  some  bolts.  While  tlie  men  were  thns  engagea 
upon  these  cars  another  train,  consisting  of  30  or  35  cars,  was 
bucked  down  upon  this  same  track,  withm  from  one  to  six  car- 
lengths  of  the  train  being  repaired.  Carlson  knew  of  this,  hnt  did 
not  move  or  change  the  Sag.  He  swears  that  Leith,  the  other 
foreman,  and  one  Oscar  Strom  had  gone  ahead,  and  lie  supposed 
tliat  tliey  liad  moved  the  flag  to  tlie  front  end  of  the  last  train,  or 
would  do  so;  therefore  he  kept  on  at  work,  and  paid  no  attention 
to  the  matter.     Tlie  flag  was  not  changed. 

While  these  two  sections  were  standing  on  this  track,  Oscar 
Strom,  a  car-repairer,  and  one  of  the  gang  under  Carlson  and  Leith. 
passed  along  the  seetiun  last  placed  n])on  the  track,  and  inspected 
the  care.  He  marked  one"B.  O."  (bad  order).  This  car  was 
about  the  sixth  one  from  the  front  end  of  the  section.  Syl- 
vester Geiger,  a  brakeman,  going  ont  that  day,  came  through 
the  yard,  and,  seeing  this  B.  O.  car.  pnlled  the  pin  connecting  it 
with  the  rear  cai-s.  He  spoke  to  Murray,' the  yard-master  about 
it,  and  Murray  ordered  tlie  switch-engine  to  take  this  car  out. 
One  Farnum,  who  was  not  a  witness  upon  the  trial,  was  running 
the  switch-engine.  He  attached  the  engine  to  the  first  section, 
and  ran  the  detached  care  out  upon  another  track,  and  the  E.  O.  car 
was  "  kicked  "  upon  it.  He  then  ran  the  remaining  five  cars  hack 
upon  track  No.  4.  As  soon  as  he  did  this,  he  detached  the  engine 
from  them.  Geiger  was  on  top  of  the  cars,  and  eupposed  tlie 
engine  was  still  attached  to  them.  When  he  got  near  tlie  rest  of 
the  section,  to  which  he  intended  to  c<iup!e  these  cai-s,  he  gave  a 
signal  for  the  engine  to  slow  up.  Discovering  that  the  engine 
was  not  attached,  when  within  about  two  car-lengths  of  the  section, 
lie  jumped  off  and  ran  ahead  to  make  the  coupling.  He  testifies 
"  they  "  [the  cars]  "  just  about  got  up  with  me, — they  don't  run 
very  fa6t,^kept  jiiat  about  up  with  me;  then  somebody  halloed  at 
me  to  get  out,  and  I  was  kind  of  scared,  so  I  got  out,  and  lost  the 
coupling,  and  they  struck,  and  run  the  otliere  down  against  the  30 
cars  these  car-repaii-ers  were  working  under."  Witliont  any  warn- 
ing to  plaintiff,  the  car  which  he  was  under  Intiged  back  over 
him,  dragging  hito  on  hie  back  across  his  tool-cheet,  injuring  bis 


^d  by  Google 


KASTER  AMD  .  SEETANT— FELLOW-SEBVAHT.  396 

slioalder  and  epine,  from  wliich  injury  he  claimB  a  probable  per- 
manent disability.  Tbe  teetinionj  shows  that  it  was  not  the  dntj 
of  the  plaintiS  to  move  this  Sag,  and  he  had  been  forbidden  to 
touuh  it.  The  men  having  properly  the  charge  of  it  were  Leith 
and  Carlson.  No  one  else  was  authorized  to  touch  it  except  by 
their  order. 

In  tlie  plaintiff's  declaration  the  causes  of  Deslifirence  upon  the 
part  of  the  defendant  were  alleged  aa  follows:  (l)  That  defendant 
should  have  provided  a  watchman  to  want  plaintiff  of  the  moT^ 
iiient  of  the  care,  and  notify  otlter  employees  of  liis  whereabouts: 
(2)  that  a  proper  signal  flag  ehonld  have  been  need  to  give  notice  of 
hid  preseuce  under  the  carsj  (3)  tliiit,  tlie  cars  under  wliich  he  was 
working  should  have  been  ''  locked  "  or  placed  against  a  bumper 
or  Btationury  post ;  (4)  that  defendant  neglected  to  provide  each 
watchman,  nag,  or  "bumper;"  (5)  that  defendant  neglected  all 
reasonahie  means  to  prevent  tlie  movement  of  the  cars  while  plain- 
tiff was  at  work  under  them ;  (6)  defendant  negligently  reqnired 
the  care  to  be  repaired  on  an  open  track,  upon  wliich  engines  or 
cars  might  be  run  while  plaintifE  wae  at  work  ;  (7)  and  negligently 
exposed  plaintiff  to  the  risk  from  the  movement  of  the  cars ;  (8) 
that  while  plaintiff  was  under  the  cars,  and  in  tlie  absence  of  such 
precautions,  without  any  warning  to  him,  defendant  wrongfully 
caused  a  nniuberof  cai-stobe  pushed  in  upon  the  track  when  plain- 
tiff WOE  at  work,  by  locomotive  power,  at  a  high  rate  of  speed,  un- 
attaclied  to  the  locomotive,  and  msufficiently  provided  with  brake- 
men.  Tiie  proof  showed  that  no  watchmen  or  "  bumpers  "  were 
provided,  and  no  signal  used  except  tlie  red  flag,  which  would 
undoubtedly  have  answered  the  purposes  of  a  eufficient  signal  had 
it  been  removed  to  the  front  end  of  the  section  last  run  upon  the 
track. 

Upon  the  conclusion  of  the  testimony,  the  circuit  indee  directed 
a  verdict  for  the  defendant,  holding,  first  that  the  injury  was 
caused  by  the  neglect  of  Carlson  or  Leith  to  remove  the  nag  from 
the  rear  section,  and  place  it  at  the  head  of  the  front  section  of  the 
ears  npon  the  track ;  and,  secondly  from  the  neglect  of  the  switch- 
man Farnum  to  perform  his  duty ;  that  he  liad  no  business  or 
right  to  uncouple  the  cars  from  the  engine  as  he  did.  He  then 
ruled  that  inasmuch  as  there  was  no  evidence  offered  or  claim 
made  that  eitlier  Carlson,  Leith,  or  Farnura  were  incompetent,  the 
plaintiff  could  not  recover,  because  all  these  parties  were,  in  law, 
ftiUow-em ployees  with  the  plaintiff. 

It  is  claimed  by  the  counsel  for  the  plaintiff  that  it  was  negli- 
gence on  the  part  of  the  defendant  to  run  the  last  section  of  cars 
upon  the  track  while  the  others  were  being  repaired,  and  had  the 
signal  flag  at  the  front  of  them ;  that  the  evidence  shows  it. was 
their  custom  to  do  so,  the  only  instructions  being  to  leave  space 
between-  the  cars  being  repaii-e<l ;  and  ilmr  the  plaintiff  had  a  right 


izcdbvGoO^^lc 


296      PETEKSON  V.  CHICAGO  AND  NORTHWESTEllN  R.  CO. 

to  go  to  tlie  jary  upon  this  qQestion.  His  coonsel  assert  tlm't  tlje 
primary  cause  of  tlie  iujiiry  was  the  existence  of  the  nile  or  custom 
to  permit  eiicroaclimenta  upon  the  track,  or  a  wantof  sufficiently 
dennite  rules  to  govern  the  use  of  the  signal  flag,  or  both  combined. 
Tlie  testimony  shows  that, the  following  rnle  w;tB  in  force,  and 
bad  been  for  some  time  before  tiie  accident,  Tliere  was  a  dispute 
in  the  testimony  as  to  whether  or  not  notices  of  tJiis  rule  were 
posted  np  while  plaintiff  was  in  tlie  employ  of  defendant.  Bnt 
there  is  no  qneetion  from  the  recoi-d  bat  the  inBtrucrions  of  the 
defendant  were  tliat  the  red  flag  sli^uld  be  placed  at  the  front  end 
of  the  cars  on  tlie  repairing  track,  and  tJiat  m  no  event  should  any 
train  be  run  against  care  having  such  flag  npon  tliem.  The  follow- 
ing is  a  copy  of  said  notice : 

"CmoAoo  &  NoBTHw£8TKRN  RAiiiWAr  CoMPANT,  Office  of  the  Qkh- 


"  Oetural  Notict, 

"CoicAoo,  October  27,  1681. 
"Hereafter  it  iimade  the  duty  of  Bllcar-iQ«pectoreaDd  repair-men,  before 
they  go  under  or  betneen  aoy  cars  to  Inspect  or  repair  tbe  tame,  to  have  first 
displayed  a  red  BJgiial  od  the  end  of  car  or  cara  in  tbe  direction  from  nbicb 
a  traia  or  engine  could  approach.  All  traio-men  must  carefully  observe  this 
notice,  and  under  no  circumBtancea  must  tbey  back  against  or  couple  onto 
any  car  wbile  such  signal  is  displayed.  Car  repair-men  and  car-inspectora 
must  provide  themselves  with  such  signal,  whicn  cud  be  obtained  from  their 
foreman,  and  have  them  on  baud  at  idl  times  for  use." 

I  think  it  must  be  considei'cd  that  this  rule,  if  enforced,  waB 
adequately  enfflcient  for  the  protection  of  plaintiff,  and  tiie  men 
working  at  the  same  employment.  A  similar  method  of  pixitectioD 
IB  adopted  by  otiior  roads,  and  has  in  one  case  l)eeD 
^Sn^ToTrto-  judicially  del«ruiioed  to  be  " a  very  efficient  rule,  and, 
m™»^o»  Dt-  jf  carefully  and  faithfully  observed,  would  give  reason- 
able protection  to  repiiir-nien."  Abel  v.  Preeideiil,  etc, 
103  N.  Y.,  at  page  586;  s.  c,  28  Am.  &  Eng.  R,  K.  Cas.  497. 
With  this  rule  ni  esietence,  and  witli  InBtrnctions  to  all  employees 
to  observe  it,  it  was  not,  in  my  opinion,  negligence  on  the  pari  of 
the  defendant  in  not  having  a  watchman  or  "bnmpers;"  nor  was 
it  negligent  to  run  other  cars  upon  the  same  track  where  cai-s  were 
being  repaired,  when  space  was  left  between  them,  and  the  red  fag 
waB  respected  according  to  the  rule.  While  the  negligence  of 
Famum.  in  detacHing  the  engine  from  the  cars  used  in  '"Kicking" 
the  B.  O,  cars  upon  the  main  track,  had  something  to  do  with 
oansing  the  accident,  the  real  neglbot  whicb  was  the  main  canse  of 
the  injury  was  the  failure  of  the  foremen,  or  one  of  them,  to 
remove  the  flag,  and  place  it  at  the  head  of  the  front  section  of  the 
cars  npon  the  rear  track.  If  this  had  been  done,  none  of  the  cars 
would  have  been  moved  while  plaintiS  or  any  of  the  men  were  at 


^d  by  Google 


MASTER   AND   SKKVANT — PILLOW-SERVANT.  297 

work  i-epaii'ing  tbe  care,  if  the  rales  of  the  defendant  had  been 
obeyed. 

As  stated  by  the  circuit  jn^e,  'tliere  could  be  no  claim  from  the 
record  that  aitlier  Fmnuiii,  £eitl],  or  Carlson  were  incompetent 
men  in  sncii  sense  as  to  charge  Jefendmit  with  the 
results  of  tlieir  negligence.  If  tlie  question  were  an  SmmS  ™? 
■open  one  in  this  State,  I  should  not  be  inclined  to  bold  wmnSIti™ 
that  either  of  theae  pcreons  was  a  fei  low-em  pi  ojee  of 
tlie  plaintiff.  Bnt  tlie  law  in  tliie  respect  is  wl'11  settled  in  this 
State,  and  tbe  circuit  judge  followed  the  decisions  of  this  court, 
■citing  tbem  in  liis  charge  to  the  jurj'.  See  Raili'oitd  Co.  u  Duian, 
33  Mich.  510  ;  Smith  v.  Railway  Co.,  46  Mich.  2S8;  s.  c,  2  Am. 
&  Eng.  li.  R.  Gas.  146;  Railroad  Co.  v.  Austin,  40  Micb.  247; 
Mining  Co.  V.  Kitte,  42  Mich.  34;  Oreenwald  v.  Railway  Co.,  49 
Mich.  197;  e.  c,  7  Am.  &  Eng.  R.  R.  Cas.  133;  Gardner  v.  Rail- 
road Co..  58  Midi.  584;  b.  c,  24  Am.  &  Eng.  R.  R.  Cas.  435; 
Hoar  V.  MeiTitt,  29  N.  W.  Rep.  15. 

Under  tlie  plaintiff's  evidence,  and  the  other  undispnted  facts  in 
the  record,  and  tlie  law  applicable  to  the  same,  tbe  judgment  of 
the  court  below  must  be  affirmed. 

{The  other  jnstices  concurred.) 

Company  Bound  to  Protect  Car-R«pairer>  from  Peouliar  Danger.— In 
Luebke  V.  (Jbicago  R.  Co.,  09  WIh.  127;  e.  c,  18  Am,  &  Eng.  R.  R.  Cae.  188, 
it  was  beld  that  to  go  iiaier  a  car,  standiDg  alone  oa  a  side  track,  for  tlio 
purpose  of  repairing  it,  ia  not  a  dangerous  service,  tbe  rieke  ot  whicb  tbe 
'employee  takes  upon  bimBelf ;  and,  in  the  absence  of  an;  testimony  showing 
that  a  watcbmaa  was  placed  to  protect  such  car,  while  the  railroad  compaoy 
admits,  by  its  answer,  that  according  to  the  customs  and  regulations  of  the 
compaay  such  work  should  not  be  done  except  while  the  car  is  being  pro- 
tected by  WHtchinen,  or  other  suitable  means,  the  case  should  not  be  taken 
from  the  jury.  To  provide  against  injury  in  such  an  employment  ii  clearly 
the  duty  of  the  company.  See,  also,  Texas,  etc.,  R.  Co.  v.  Harrington,  63 
Tex.  G9T;  s.  c,  21  Am.  it  Sng.  R.  R.  Cas.  671;  Lake  Shore,  etc.,  R.  Co.  v. 
Lavalley,  86  Ohio  6t.  221;  s.  c.  5  Am.  &  Eng.  B.  R.  Cas.  649;  Hannibal, 
etc.,  R.  Co.  e.  Fox,  81  Eans.  S87;  e.  c,  16  Am.  &  Eng.  R  R  Cas.  S25, 
and  authorities  there  cited. 

Car-Repairers  and  other  Employees  as  Tel  low -Servants. — When  a  car- 
repairer  was  employed  to  assist  in  bacdhng  and  moving  cars  in  the  yard, 
including,  also,  the  removal  of  broken  or  damaged  cars  to  the  proper  place 
for  repairs,  under  the  direction  of  a  foreman,  who  was  subject  to  the  orders 
of  a  yard-master  and  division  superintendent,  hdd,  that,  as  respects  risks 
Arising  from  the  acts  and  omissions  of  such  foreman  in  tbe  course  of  such 
employment,  be  was  to  be  deemed  the  fellow -servant  of  tbe  caT'Tepairer. 
The  court  observes:  "As  respects  the  discharge  or  such  duties  by  the  parties 
so  employed,  and  any  risks  incident  thereto,  including  the  acts  and  omissions 
of  the  fbreman,  the  latter  must  be  regarded  as  the  coaervant  of  plaintiS. 
Brown  e.  Railroad  Co.,  27  Minn.  162;  McCosker  e.  Railroad  Co.,  84  N.  Y. 
S3;  B.  c,  6  Am.  &  Eng.  R.  R.  Cas.  664;  Lawler  e.  Railroad  Co.,  62  Me.  466; 
"Weger  e.  Railroad  Co.,  55  Pa.  St.  460."  Fraker  v.  St.  Paul,  etc.,  R.  Co.,  82 
Minn.  64;  S.  C,  16  Am.  &  Eng.  R.  R.  Cas.  266. 

Id  Hannibal,  etc.,  R.  Co.  t>  Fox,  31  Eans.  687;  s.  c,  15  Am.  &  Eng.  R.  R. 
Cas.  83S,  when  the  facts  closely  resembled  those  id  the  principal  cases,  the 


^dbvGooglc 


398         PATTON   V.    WESTEBN   SOBTH   CABOUNA    K.    CO, 

court  observes :  "  It  i*  immaterikl,  therefore,  whether  Lo veil  be  called  super- 
inteodeot,  midcllem»D,  bosH- repairer,  or  foreman.  The  duty  devolved  upoD 
him  to  direct  liiBHubordinateeto  work  in  a  pecutiarl; daagerouB  place,  where 
b;  tlie  exercise  of  reaeoaable  care  tliej  could  not  protect  themselvea  from 
approaching'  traioa  or  cars;  and  nnder  such  circumstancea  Ihe  duty  devolved 
upoD  him,  aa  the  representative  of  the  company,  to  protect  his  subordiaaCe* 
while  at  work  from  the  BwitchiD^  of  cars  and  the  making  up  of  traiog  on  the 
same  track.  He  failed  to  perform'  his  dut;.  For  bis  negligence  in  thu 
respect  the  cpmpan;  is  liable.  The  latter  cannot  in  this  matter  interpose 
between  it  and  Fox,  who  has  been  injared  without  fault  on  hia  part,  the 
personal  responsibility  of  Lovell,  who,  exercising  the  company's  authority, 
has  violated  the  duty  he  owed,  as  well  to  Foi  as  the  compsny.  Hough  v. 
Railway  Co.,  lOU  U.  S.  218,  and  cases  there  cited;  Rulway  Co.  v.  Lavalley, 
86  Ohio  St.  3ai;H.  c,  S  Am.  &  Eng.  R.  R.  Cas.  G49."  Bee,  also,  Texas,  etc., 
R.  Co.  e.  UuriDgton,  62  Tex.  097;  s.  c,  31  Am.  &  Eug.  R.  R.  Cas.  &71. 


Western  Noeth  Caeoliwa  R  Co. 
(AdvanM  Com,  North  Oarolina.    April  11,  1B8T.) 

A  section  master  in  defendant's  employ  ordered  the  plaintiff,  a  new  section 
hand,  to  jump  from  a  swiftly-moving  train,  whereby  he  was  severely  io- 
jured.  In  an  action  against  the  company  to  recover  for  the  injury,  the  com- 
plainant alleged  that  the  section  master  was  agent  and  ecryant,  and  had  full 
power  andauthority  of  defendant  to  taireand  discharge  hands  and  servants, 
and  who  was  the  superior  of  the  plaintiff,  and  whose  orders  the  plaintifF  wa» 
bound  to  obey.  Evidence  was  introduced  to  prove  this  allegalion,  and  the 
jury  found  by  their  verdict  that  it  was  true.  Held,  that  the  section  master 
was  not  the  fellow  servant  of  the  plaintiS.  and  the  company  was  liable. 

Under  Code  Civil  Proc.  N.  C.  ^J  891-398,  relative  to  the  issues  to  be  sub- 
mitted to  the  jury,  it  is  not  necessary  to  submit  an  issue  to  the  jury  npon 
every  material  fact  controverted  by  the  pleadings,  but  the  principal  issues- 
raised  by  the  constitutive  allegations  of  fact  ought  always  to  be  submitted,, 
and  in  an  action  to  recover  for  personal  injuries  the  court  ought  to  submit  to 
the  jury  the  question  whether  the  plaintiff  was  injured  by  the  default  and 
negligence  of  the  defendant,  and  whether,  if  bo,  the  plaintiff,  by  his  own  de- 
fault and  negligence,  contributed  to  the  iujuries  he  sustained,  without  con- 
fusing the  jury  by  submitting  evidential  facts  averred  and  denied  by  th* 
pleadings. 

Appeal  from  snperior  coui-t,  McDowell  ooDBtj. 
Batckelor  <&  Devereux  for  plaiiitiS. 
D.  Sckenck  for  defendant. 

HERBruoN,  J. — Tlie  plaintifE  bronght  this  action  to  recoTer  dant- 
nfjes  for  injnries  sustained  by  liiin  as  alleged  in  tlie  material  parts  of 
Ills  complaint,  whereof  tlie  following  is  a  copy : 


^dbyGooglc 


MASTEE   AHD   8  E  EVA  NT— FELLOW-SEE  VAHT.  29* 

"(2)  And  the  said  plaintiff,  at  and  before  the  injnrieB  and 
wrongs  liereitiafter  inentioned,wae  employed  by  the  said  fic«. 

defendant  as  a  section   hand  on  the  section   from to  Old 

Fort,  on  the  line  of  said  railway,  at  and  for  a  certain  hire 
and  award  agreed  upon  by  the  parties  in  tliat  behalf;  that  the 
Baid  plaintiff  was  then  and  there  hired  and  employed  by  one  Grant,, 
who  was  then  and  there  the  Hgent  and  servant  of  tlie  said  defend- 
ant in  tliat  bcliaif ;  the  said  G-r>int  then  and  there  being  the  section 
boss  or  foreman  for  Siiid  section,  with  full  power  and  authority 
of  the  said  defendant  to  hire  and  discharge  hands  and  servants  in 
that  behalf  on  said  section,  and  who  was  then  and  there  the  supe- 
rior of  the  said  phiintiff  in  tliat  behalf,  whose  orders  and  coinmandg, 
in  the  Hue  of  said  service,  as  the  agent,  foreman,  and  boas  of  the 
said  defendant,  the  said  plaintiff  was  lawfully  bound  to  obej'. 

"(3)  Tiiaf- on  or  about   the day  of  March  or  February, 

A.  D.  1883,  the  said  Qrant,  as  such  section  Iwst^,  foreman,  and 
agent  of  said  defendant,  and  superior  of  said  plaintiff,  ordered  and 
commanded  said  plaintiff  to  go  on  board  a  train  at  the  village  of 
Old  Fort,  on  the  line  of  said  defendant's  railway,  aa  aforesaid,  theu 
and  there  the  train  of  the  said  defendant,  being  then  and  there 
managed,  controlled,  rnn,  and  conducted  by  the  agents  and  servants 
of  the  said  defendant ;  and  the  said  plaintiff,  theu  and  there  obey- 
ing the  order  and  command  of  the  said  Qrant,  as  aforesaid,  in  llie 
line  of  his  duty  under  his  contract  of  service,  did  get  on  said  train 
with  the  said  Grant,  as  aforesaid,  and  became  a  passenger  11161*0011 
in  his  said  line  of  duty,  for  the  purpose  of  assisting  in  removing 
a  wreck  of  a  freight  train  on  said  ralh'oud. 

"  (4)  That  said  train,  as  aforesaid,  was  then  and  there  in  motion ;. 
and  that,  as  said  train  neared  and  approached  the  wreck  as  afoi'e- 
said,  the  said  Grant,  as  the  servant,  agent,  and  section  boss  of  the 
said  defendant,  and  then  and  there  being  the  superior  of  the  said 
plaintiff,  with  full  power  and  autiioriiy  of  the  said  defendant  in 
that  behalf,  as  afoi-esaid,  and  the  said  plaintiffbeingthen  and  there 
lawfully  bonnd  to  obey  the  orders  of  the  said  Grant,  agent  and  serv- 
ant of  the  said  defendant  as  aforesaid,  and  the  said  train  being 
tlien  and  there  in  motion,  and  running  at  a  swift  rate  of  speed,  the 
said  defendant  tiien  and  there,  by  its  said  agent,  sei'vant,  and 
section  boss,  the  said  Grant,  not  I'egarding  his  duty  in  that  behalf, 
and  not  exercising  due  care,  carelessly,  negligently,  and  unskit 
fnlly  ordered  and  commanded'the  said  plaintiff  to  jump  from  tli& 
said  train,  then  and  there  being  in  motion,  as  aforesaid,  for  the 
purpose  of  assigtiiig  otlier  servants  and  section  hands  of  the  said 
defendant  in  the  line  of  their  duty  in  that  regard,  the  said  act  of 
jumping  from  said  train  being  then  and  there  extra  hazardous  smd 
dangerous;  and  the  said  defendant,  by  its  agents  and  servants,  and 
by  its  agent  and  servant,  the  said  Grant,  well  knowing  the  same, 
dnd  the  said  plaintiff  being  unacquainted  with  the  railway  service- 


^d  by  Google 


300         PATTON   V.    WE3TEKN    WOKTH   CABOLINA   R.   CO. 

ill  genera],  and  a  novice  in  railroad  work,  and  being  ignorant  of 
tlie  danger  and  hazard  to  wliicli  lie  was  exposed  by  said  command 
und  ordei-8  of  tlie  said  defendant,  as  aforesaid,  and  witlioiit  any 
fanlt  or  negligence  on  Lis  part  whatsoever,  did  then  and  there, . 
obeyitig  said  earnmande  and  orders  of  the  defendant,  jump  from 
said  train,  being  tlien  and  tliere  in  motion  ;  and — 

"(fi)  In  so  jumping  from  tlie  said  train,  the  said  plaintiff,  by  care- 
lessness, negligence,  and  default  of  the  agents  and  servants  of  the 
«aid  defendant,  and  for  want  of  dne  care  and  attention  by  the  siiid 
Grant,  agent  and  servant  as  aforesaid,  and  tlie  said  defendant,  the 
said  plaintiff  was  violently  thrown  down  on  the  embankment  of  the 
«aid  railway  of  the  said  defendant,  whereby  the  said  plaintiff  was 
greatly  cut,  brnised,  and  wounded,  and  had  the  leg  and  ankle  of  hira, 
the  said  plaintiff,  badly  fiactnred  and  dislocat^,  eo  that  lie,  the 
said  plaintiff,  became  and  was  sick,  lame,  and  unable  to  walk." 

The  defendant  denies  the  material  allegations  of  the  complaint, 
and  avere  as  matter  of  defence  "  (2)  tlrat,  if  plaintiff  was  in  jnred,  it 
was  through  the  negligent  act  of  a  fellow-servant  in  the  employ  of 
defendant's  company,  for  which  defendant  is  not  responaiide;  (3) 
that  the  plaintiff  contributed  by  his  own  negligence  to  his  injury, 
by  jumping  off  a  train  wiiile  in  swift  motion,  and  by  obeying  com- 
mands which  were  manifestly  dangerous,  according  to  his  own 
allegation,  and  by  other  negligent  and  careless  acts  \  (4)  that  the 
«otnp]aint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action." 

At  the  trial,  the  court  submitted  to  the  jury  the  following  is- 
snes.  to  which  they  responded  as  indicated  at  the  end  of  each :  "  (1) 
Was  Grant  the  snperior  of  the  plaintiff,  as  stated  in  the  complaint, 
"whose  commands  the  plaintiff  was  bound  to  obey,  as  alleged  in 
the  complaint?  Yes.  (2)  Did  the  said  Grant  command  or  order 
the  said  plaintiff  to  jump  fi-om  the  car  of  the  defendant  while  it 
was  running  at  a  swift  rate  of  speed  ?  Yes.  (3)  Was  the  plain- 
tiff injured  thereby?  Yes.  (4)  Did  the  plaintiff  know  that  it 
was  dangerous  to  jnmp  from  the  car  while  it  was  running  at  a 
swift  rate  of  speed  i  Yes,  (5)  Could  the  plaintiff,  by  exercising 
the  care  of  a  man  of  ordinary  prudence,  have  known  it  was  dan- 
gerous to  juiiu)  from  the  car  while  it  was  running  at  such  a  rate 
-of  speed)  Yes.  What  damages  has  the  plaintiff  sustained,  if 
any)     Damages,  seven  hundred  and  fifty  dollare." 

Upon  these  findings,  the  plaintiff 'moved  for  judgment,  but  the 
oourt  gave  judgment  for  the  defendant. 

It  appears  from  the  case  stated  on  appeal  that  there  was  evidence 
that  the  plaintiff  was  employed  as  a  section  hand  by  one  Grant, 
who  was  master  of  a  section  on  the  railroad  of  the  defendant,  be- 
tween Marion  and  Old  Fort;  that  he  (Grant)  bad  control  of  the 
section  hands  and  discharged  hands,  and  had  a  right  to  I'equire 
obedience  to  Iiis  oi-ders.     The  proof  showed  that  plaintiff  was  not 


^d  by  Google 


MASTEB   AND    SERVANT— FELLOW-SEEV  A  NT.  301 

acqnainted  with  railroad  work  or  trains ;  had  been  in  the  employ 
of  die  company  only  tliree  weeks  prior  to  the  wrong  complained 
of;  that  tlio  dnty  of  the  pldntifi  ae  a  section  hand  was  to  work 
repairing  the  road,  to  man  the  dump  car  used  by  the  section  hands ; 
that  Grant  had  four  liands  on  his  section ;  and  that  it  required 
four  hands  to  handle  the  dump  car  used  by  the  section  hands. 
Plaintiff  testilied  that  lie  was  a  novice  at  the  business;  did  not 
know  the  danger  involved  in  jumping  from  the  car  while  movina; 
the  day  he  was  ordered  by  G-rant  to  jnmp;  that  Grant  told  God- 
frey, another  section  liand,  to  jump  tireC,  but  Godfrey  did  not 
jnmp.  The  plaintiffs  ankle  was  dislocated  and  exhibited.  Tiie 
physician  testified  that  the  injury  was  permanent. 

The  plaintiff  stated  that,  when  witness  was  fixing  to  jump  off, 
Grant  told  him  to  be  careful,  there  was  danger  oi_g^tting linrt, 
but  witUCTS  did  not  know  it  until  he  jumped  off,  Tlie  train  was 
running  fast.  Counsel  suggested,  "very  fast."  Witness  said, 
"Pretty  fast."  Witness  hciird  Grant  tell  Godfrey  to  jump  off, 
and  he  did  not  do  it.  After  witness  was  hurt,  he  supposed  it  wa» 
because  Godfrey  thought  tiiere  was  danger  in  it ;  did  not  ask  God- 
frey wJiy  he  did  not  jump;  that,  when  plaintiff  was  fixing  to 
jump,  Gi-ant  told  him  to  be  carefnl ;  that  he  (plaintiff)  was  careful 
aa  he  could  be.  He  said  Terrell,  the  engineer,  was  the  firet  to 
come  to  him  after  he  was  linrt;  that  Terrell  then  said;  "Don't 
know  what  Grant  was  thinknig  about  to  tell  liim  to  get  off  while 
the  train  was  in  motion."  Terrell  said  that  Grant  said  he  would 
tell  one  of  the  hands  to  get  off,  and  help  fix  the  dump  car.  Wit- 
ness knew  the  car  was  going  to  atop  on  the  top  of  the  gi'ade. 

It  was  in  evidence  tliat  Terrell,  the  engineer,  was  that  day  run- 
ning an  extra  freight ;  that  Grant  had  received  orders  to  take  his 
men,  and  help  put  on  some  old  trucks;  that  Grant  took  two  of 
his  section  hands,  and  put  them  on  tiie  train  at  Old  Fort,  to  be 
carried  to  the  dump  or  section  car ;  that  tlie  dump  car  was  on  the 
side  of  the  railroad  track,  about  half  way  up  the  grade  east  of  the 
Catawba-river  bridge ;  that,  before  leaving  Old  Foi't,  Grant  asked 
the  engineer  of  the  freight  train  to  stop  at  the  dump  at  Hemp- 
hill's crossing,  that  the  section  hands  might  get  off  and  put  the 
dump  Ciir  on  the  track,  so  as  to  accompany  the  freight  train  to  the 
track;  that  the  engineer  refused,  alleging  that  he  was  too  heavily 
loaded  to  stop  on  that  grade,  us  he  could  not  start  again,  and  was 
obliged  to  keep  up  mountain.  There  was  evidence  on  the  part  of 
the  defendant,  by  Grant,  tliat  was  contradictory  of  the  plaintiff's 
teetimony ;  that  Grant  told  the  plaintiff  and  Godfrey,  at  Old  Fort, 
that,  when  the  freight  cars  stopped  at  the  top  of  the  grade,  they 
would  jump  off,  ana  go  back  to  the  dnmp  car,  and  lielp  put  it  on, 
and  bring  it  to  tlie  freight  train.  There  was  evidence  tending  to 
sliow  that  the  up-grade  was  about  half  a  mile  long,  and  that  the 
dump  car  was  about  a  quarter  of  a  mile  from  the  top  of  the  grade. 


^d  by  Google 


ii02  PATTON   V.    WJiSTERN   NOKTH   OAEOLINA  B.    CO. 

There  was  evidence  tending  to  bIiow,  when  nearly  opposite  the 
dump  ear,  Grant  left  the  engine  where  he  had  been  riding  froin 
■Old  Fort,  and  came  down  on  the  coal-flats  wliere  the  plainiiff  and 
trodfrey  were  silting;  chat  Grant  commanded  Godfi-ey  to  jump 
off,  and  lielp  put  the  dump  on  the  tra(;k;  tliat  Godfrey  did  not 
jnmp;  Godfrey  testifies  tliat  Grant  then  turned  to  plaintiff,  and 
told  hitn  to  jnuip,  when  he  saw  the  train  moving  as  slow  as  it 
Would  move  before  it  got  to  the  top  of  the  grade ;  tijat  he  noticed 
iiQ  slacking  up  of  the  train  or  slower  rate  of  speed  than  it  was 
then  running  at,  till  it  reached  the  top  of  the  grade ;  that  plaintiff 
started  to  jump  off,  and  Giant  went  forward  to  the  engineer ;  that 

filaintiff  got  down  on  \\\i  liands  and  kneee,  as  near  tlie  ground  as 
le  could,  and  jumped  and  was  injured. 
Grant  was  introdnced  for  the  defendant,  and  denied  that  he 
liad  given  tlie  order  as  testified  to  by  plaintiff;  admitted  that  he 
had  cotd  plaintiff  to  be  careful,  but  said  it  bad  reference  to  getting 
off  the  train  when  it  stopped  at  the  top  of  the  hill.  Witness 
Grant  had  been  many  yeai-a  in  the  employ  of  the  raihxjad  com* 
pany,  wps  advanced  from  common  section  hand  to  master  of  con- 
struction train.  The  defendant  introduced  the  engineer,  who  tes- 
tified tiiat  he  was  running  as  fast  as  be  could  up  grade,  was  heav- 
ily loaded,  and  could  not  etop  until  at  the  top  of  the  grade.  Said 
it  required  skill  to  jump  off  a  train  in  motion  ;  that  he  bad  dressed 
plaintiff's  leg.imrnediately  after  the  accident,  and  then  conversed 
.with  him.  Could  not  remember  the  words  of  plaintiff,  but  did 
remember  tlie  subBtanco  of  wliat  plaintiff  said.  Tlie  plaintiff  ob- 
■  jected.  Objection  overruled,  and  plaintiff  excepted.  The  witness 
said  substance  of  conversation  was  that  plaintiff  blamed  himself 
forjninping  off  the  car. 

Tliere  seems  to  be  no  well-settled  rule  that  classifies  the  agents 
■and  servants  of  a  common  employer,  whether  natuiul  or  artificial, 
first  into  such  as  liave  authority  to  represent,  act  for 
iim"''"™'"?-  and  in  the  place  of,  the  employer  in  respect  to  the  per- 
SSw°BMv«'S'  so"8,  business  matters,  and  thinj^  wherewith  they  are 
charged;  and,  secondly,  such  as  have  no  such  authority, 
but  are  merely  fellow-servants.  But  without  regard  to  such  rule, 
there  is  no  reason  why  such  authority  may  not  be  specially  con- 
ferred upon  any  such  agent  or  servant.  In  this  case  the  burden  of 
proving  the  authority,  its  extent  and  compass,  by  competent  evi- 
dence would  rest  upon  the  party  alleging  it,  unless  the  nature  of 
the  agency  or  employment  implied  its  existence  and  extent.  Thus 
an  emploj'er  might  confer  upon  a  particular  laborer  cliarged  to  do 
a  particular  sort  of  service,  but  who  simply,  by  the  nature  of  his 
employment,  would  have  no  authority  to  represent  or  bind  his 

Erincinal  in  any  respect,  power  to  employ  other  like  laborei*  with 
iraself  to  do  the  service  to  be  done,  to  direct  and  command  them 
when,  where,  and  how  to  work,  to  control  and  superintend  them, 


^d  by  Google 


MASTER   AITD    SERVANT — FELLOW- SERVANT.  ^  303 

and  to  discharge  them  from  employment  in  bis  discretion,  although 
lie  should  labor  with  and  as  one  of  them.  And  there  can  be  no 
question  that  the  employer  would  be  answerable  for  the  misfeas- 
ance or  non-feasance  of  such  agent  in  the  course  of  his  einploy- 
ment,  and  in  the  exercise  of  Uie  power  tbns  conferred  upon  him. 
This  is  80  because  the  agent  in  sudi  case  would  be  expresBly  au- 
thorised to  represent,  act  for  and  in  the  place  of,  hie  employer  in 
the  business  designated,  and  widiin  the  compass  of  power  con- 
ferred. And  so,  in  the  case  before  ns.  akhough  the  section  master 
or  foreman  miglit  not  iiave  had  authority,  arising  fi'Diri  the  nature 
of  his  employment,  to  bind  the  defendant  for  his  acts  towards  and 
Ilia  commands  to  his  fellow-servants,  yet,  if  the  defendant  conferred 
npon  him  power  and  authority  to  employ  laborers, — fellow  labor- 
ers with  himself, — to  work  on  the  section  of  the  railroad  wlierewith 
he  was  ciiai'ged,  and  autiiority  to  superintend  them,  to  give  them 
orders  and  commands  in  the  line  of  the  work  to  be  done,' which 
they  were  bound  to  obey,  and  to  disoharge  them  from  such  em- 
ployment, in  iiis  discretion,  as  alleged  in  tlie  complaint,  and  as  the 
evidence  introduced  on  the  trial  tended  to  prove,  the  defendant 
would  be  liable  for  his  misfeasances  and  non-feasances  in  the 
course  of  the  exercise  of  his  autiiority  tlins  conferred  by  it.  This 
is  so  upon  tlio  plainest  principles  of  law  applicable  to  and  govern- 
ing the  relations  of  principal  and  agent  towards  each  other  and 
third  persons. 

This  case  is  not  like  the  ordinary  one  of  injury  done  by  one 
fellow-servant,  acting  as  foreman  or  leader  of  several  or  many 
laborei-s,  to  one  of  his  fellow-servants.  Tlie  complaint  expressly 
alleges  that  the  section  master  named  was  agent  and  servant,  and 
had  "  full  power  and  authority  of  the  said  defendant  to  hire  and 
discharge  hands  and  servants  in  that  behalf  on  said  section,  and 
who  was  then  and  there  the  snperior  of  the  said  plaintiff  in  tliat 
behalf,  whose  orders  and  commands,  in  the  line  of  said  service,  as 
the  agent,  foreman,  and  boss  of  the  said  defendant,  the  said  plaintiff 
was  lawfully  bound  to  obey ;"  and  tliese  and  otJier  sjmilar  allegations 
to  the  same  effect.  Evidence  was  introduced  on  the  trial  to  prove 
this  material  allegation,  and  the  jury  found  by  their  verdict  that 
it  was  true.  So  it  appeared  that  the  section  master  in  this  case 
was  not  simply  a  fellow-servant  of  the  plaintiff,  but  as  wi;ll  the 
agent  of  tlie  defendant,  charged  with  authority  to  employ,  control, 
and  command  the  plaintiff  as  to  the  labor  he  should  do  on  the 
railroad  of  the  defendant  while  he  was  so  in  its  service,  and  to  dis- 
charge him  from  such  service, — jnet  as  its  president  or  other  lead- 
ing executive  ofiSeer  might  have  done ;  and  the  defendant  must 
therefore  be  held  liable  for  his  misfeitsanee  in  tbe  course  of  his 
agency,  just  as  if  the  same  had  been  done  by  its  chief  executive 
officer.  Dobbin  v.  Railroad  Co.,  81  K.  C.  446 ;  Cowles  v.  Rail- 
road  Co.,  84  N.  0.  309  ;  s.  c,  2  Am.  &  Eng.  R.  R.  Cas.  90. 


^dbyGoOglc 


304         PATTON   V.    WBSTEEN   NORTH   CAROLINA    R,    CO, 

We  think  tliat  the  principal  and  real  iBsnes  raised,  by  the  plead- 
ings were  not  Eiibmitted  to  tlie  jury.  Except  that  ae  to  damages, 
those  BiibmiLted  involved  the  aseertHinment  of  only  important  inci- 
dental and  evidential  facts  bearing  upon  the  lEsneB 
uoo!?^"  rn  raised.  Tlie  qnestion  of  fact  as  to  tlie  agency  of  the 
SUCK IiD^ii-  section  master,  the  commands  he  gave  the  appellant, 
mujoTOBrmo-  j|jg  iujQry  gnstaiiied  by  tlie  latter,  the  knowledge  of 
the  appellant  that  it  was  dangerous  to  jump  from  the 
car  while  it  was  swiftly  moving,  and  that  he  might  by  ordinary 
care  have  known  this  fact,  were  qnestions  arising  in  and  embraced 
by  the  issues  proper;  and  the  jury  might — ongiit  ordinarily  to — 
have  determined  them  under  proper  instructions  from  the  court  in 
passing  upon  the  principal  issues  raised  by  the  pleadings.  The 
statute  (Code,  §§  391-398)  does  not  contemplate  or  require  that  an 
issue  shall  be  submitted  to  the  jury  as  to  every  important  material 
fact  controverted  by  the  pleaiiings,  nor  is  it  neceesaiT,  expedient^ 
or  proper  to  do  so.  The  principal  issues  tiiei-e  raised  by  the  con- 
etituiiive  allegations  of  fact  should  always  be  submitted,  and  iesnes 
as  to  important  essential  facts  controverted  by  tlie  pieadings  may 
in  some  cases  be  properly  submitted ;  but  a  great  number  of  tliem 
confuse  the  minds  of  the  jury,  while  they  frequently  afford,  one 
Bide  or  the  other,  opportunity  to  magnify  and  give  undue  weight 
to  a  particular  fact,  and  sometimes  obscure  the  main  issues.  Tliis 
slionld  be  guarded  against.  It  seems  to  us  that  the  principal 
issues  presented  by  the  pleadings,  in  addition  to  that  as  to  damages^ 
were :  (1)  Was  the  plaintiff  injured  and  endangered  by  the  default 
and  negligence  of  the  defendant?  (2)  If  so,  did  the  plaintifi,  by 
his  own  default  and  negligence,  contribute  to  the  injury  he  so  soe- 
tained?  These  might  have  brought  out  the  whole  merits  of  the 
matter  in  litigation.  The  complaint  alleges  important  evidential 
facts  denied  by  the  answer,  and  tbns  issues  are  raised.  Surely^ 
sucli  issnes  are  not  to  be  submitted  to  a  jury.  Only  the  issnes 
raised  by  constitncive  facts  alleged  on  one  side,  and  denied  by  the 
other,  in  the  pleadings,  shonld  be  so  submitted.  Mt-Eiwee  v. 
Blackwell,  82  N.  C.  345;  Miller  v.  Miller,  89  N.  C.  209  ;  O^er- 
cash  V.  Kitchie,  Id.  384;  Waddell  v.  Swann,91  N.  C.  108. 

The  court  denied  the  appellant's  motion  for  judgment  upon  the 
verdict  of  the  jnry  upon  the  issnes  submitted  to  them,  and  gave 
judgment  for  the  appellee.  Although  it  does  not  appear  so  af- 
Hrinatively,  it  does  by  implication,  that  it  decided,  open  the  find- 
ings upon  the  fourtli  and  fifth  issues,  that  there  was  contributory 
negligence  on  tiie  part  of  tlie  appellant,  based  its  judgment  upon 
this  principal  ground,  and  probably  upon  tlie  further  ground  that 
the  injury  was  occasioned  by  the  act  of  a  fellow-servant.  We  have 
already  seen  that  the  latter  ground  was  unfounded. 

It  ap])ears  that  the  section-iniister  was  actively  prosecuting  the 
work  of  the  defendant  ho  had  charge  of,  and  he,  and  by  bis  coin- 


ed byGoO^lc 


MA8TEB  AND   SERVANT— FELLoW-SER V ANT.  306 

maiid  the  plaintiff  and  another  fellow-servant  in  tliat  conversatioD, 
got  upon  a  pasBiiig  freight  ti-aiii  of  cars  to  go  EOine  distance  to  a 

f)lace  wliei-e  proper  work  was  to  be  done.  The  train  was  heavily 
aden,  and  gi>iMg  swiftly — liow  swiftly  does  not  appear — up  an 
ascending  gi-ude  lialf  a  mile  in  length.  Wliile  it  was  thus  moving 
and  passing  by  the  place  where  tlie  work  referred  to  was  to  be 
done,  the  section-tuaster  commanded  the  appellant  to  jump  from 
the  train,  which  command  he  aC  once  obeyed,  and  in  doing  go  sna- 
tallied  the  injury,  becunse  of  which  he  complains  in  this  action. 
It  seems  tliat  the  eommand  was  given,  and  promptly  obeyed,  with- 
out hesitation:  It  was  i-ash,  negligent,  unreasonable,  and  nn- 
warraiited ;  but  the  danger  to  be  enconntered  in  obeying  it  was 
not  so  manifest  and  so  great  ns,  onder  the  circumstances,  to  render 
a  prompt  obedience  to  it  contributory  negligence  on  the  part  of 
the  appellant.  An  ordinary  laborer  on  railroads,  one  of  ordinary 
experience,  might  make  such  a  leap  without  injury.  He  miglit 
not  nni'eaBonably  believe  that  he  could,  taking  proper  care,  and 
especially  so  when  commanded  to  do  so  by  a  railroad  employee  of 
long  experience,  wiio  had  the  right  to  command  him  in  tlie  coarse 
of  his  duty.  While  to  jump  from  a  rapidly-raoviug  train  of  cars 
is  very  hazardous,  and  ordhiarily  to  do  so  is  negligence,  it  is  not 
contributory  negligence,  where  the  plaintiff,  a  laborer  on  the  rail- 
road, is  snddenly  commanded  by  his  employer  or  his  agent  to  do 
so  in  the  course  of  iiis  employment,  and  the  command  is  at  once 
obeyed  from  a  sense  of  duty,  and  without  waiting  to  think  of  and 
consider  the  hazard.  Such  a  case  is  exceptional.  The  agent  of  the 
employer  suddenly  commands  the  laborer  to  do  an  extra-hazardous 
act  in  the  course  of  his  duty, — one  that  may,  though  not  probably, 
be  safely  done  by  observing  doe  care, — one  that  must  be  done  at 
once,  if  done  at  all.  Tlie  laborer  obeys  the  command  promptly, 
moved  only  by  a  faithful  sense  of  duty,  and  ae  a  consequence  suf- 
fer serious  injury.  In  that  case  tl>e  injured  party  does  not,  in 
legal  con  temptation,  contribute  to  his  own  injury.  Tlie  facts  and 
circumstances  were  such  as  that  he  might  suddenly,  not  unreason- 
ably, believe  that  the  command  was  a  proper  one  that  he  ought  to 
obey.  Althongh  the  act  was  hazardons,  it  was  not  essentially  dan- 
gerous. It  was  done  suddenly,  and  in  obedience  to  the  command 
of  one  who  had  the  right  to  direct  the  laborer  in  the  course  of  his 
duty.  The  latter  had  but  a  moment  to  think  of  duty,  a  moment 
to  think  of  danger.  Tlie  law  attributes  the  injury  in  such  case  to 
the  negligence  of  theemployer.  His  agent  gave  the  unwarranted, 
negligent  command.  The  injured  party  simply  obeyed,  and  was 
not  negligent,  because,  under  the  cii-cum stances,  he  might  obey. 
It  wonld  be  unreasonable  and  unjust  to  allow  the  employer  to  have 
immnuity  from  civil  liability  for  his  own  negligence,  or  that  of 
his  agent,  thns  resulting  in  injury  to  a  faitliful  servant.  W© 
81  A.  &  E.  R.  Cae.-]M 


^d  by  Google 


306       WABA3JI,  ST.  LOUIS  AND  PACIFIC  E.  CO.  V.  HAWK, 

therefore  think  tlie  court  erred  in  deciding  that  the  appellant 
could  not  recover  becanse  of  his  contributory  negHgence. 

The  appelluiit  might  iiigiet  npon  a  new  trial,  out  he  aska  onljr 
that  jndzTneiit  be  entered  here  npon  the  verdict  of  the  jury  in  liis 
favor.  We  think  lie  ia  so  entitled.  Tlie  judgment  of  the  superior 
conrt  miiBt  tliei'efore  be  revei-aed,  and  judgment  entered  here  upon 
the  Terdict,  for  the  appellant.     It  is  so  ordered, 

FoTflman  u  F0llow-S«rvant  of  SubordlnatM. — See  next  caae  and  note. 


Vababh,  St.  Louis  akd  Pachtio  R  Oa 


Hawk. 

(AdnaiM  Ca$»,  IlOnoit.    Jwu  17, 1887.) 

The  foreman  of  a  wrecking  crew  is  not  a  fellow-aemnt  with  a  workman 
hi  hUcrew,  and  for  an  accident  bappening  to  the  latter,  through  the  negli- 
g)3Dce  of  the  former,  the  compsn;  la  liable. 

Ebbob  to  Livingston  circuit  court  to  review  a  judgment  in 
favor  of  plaintiff  in  a  suit  for  injury  through  negligence.  Affirmed. 
The  facts  are>stated  in  the  opinion. 
(?.  B.  Burnett  for  plaintiff  in  error. 
W.  T.  Ament  and  A.  E.  Harding  for  defendant  in  error. 

Feb  Cdbiam. — This  was  an  action  to  recover  for  an  injnry  r^ 
ceived  by  the  plaintiff  while  assisting  in  the  removal  of  a  wreck 
Furn.  from  the  defendant's  railroad  track.     The  accident  oc- 

curred near  Forrest,  in  Livingston  county,  on  the  14th  day  of 
April,  18S2.  At  the  time  of  the  accident  tlie  railroad  company 
had  a  wrecking  crew  at  Fori-est,  consisting  of  four  oriive  men,  in- 
eluding  the  plaintiff.  The  crew  was  under  the  control  of  one 
Button,  who  was  foreman.  Wlien  a  wreck  occurred  it  was  the 
duty  of  Button  and  his  men  to  remove  the  wreck  and  clear  the 
track  as  speedily  as  possible,  so  that  the  running  of  trains  might 
not  be  delayed.  The  railroad  company  had  furnished  Button  with 
an  engine  arid  wrecking  car  supplied  with  ropes,  chains,. and  block 
and  tackle.  At  the  time  of  the  accident  a  freight  train  hnd  been 
tlirown  from  the  track  about  one  mile  from  Strawn.  Button  and 
his  men  went  out  to  the  wreck  with  the  engine,  wrecking-car,  and 
other  appliances  for  the  purpose  of  removing  the  wreck  from  the 
track.  Chapman,  defendant's  i-oad-mastcr,  with  a  number  of 
section  men,  were  working  at  the  south  end  of  tiie  wreck,  while 
Bntton  and  his  men  worked  at  the  north  end.  When  the  two 
same  together  they  f  onnd  the  ffoor  of  a  car  lying  across  the  track, 


^d  by  Google 


MASTER  iCND    SERVANT— FELLOW-SERVANT.  307 

and  the  men  were  ordered  to  lift  it  over  off  the  track  by  hand. 
When  the  floor  of  the  car  had  been  lifted  as  high  as  tlie  men  could 
raise  it,  a  prop  was  put  tinder  it  and  tlie  men  ordered  to  rest  it  on 
tiie  prop,  whieii  they  did.  The  men  were  then  ordered  to  stand 
back  from  the  floor  of  tlie  car,  and  they  all  did  so;  but,  before 
appellee  could  ^&t  away,  the  prop  slipped,  the  car  floor  fell  and 
canglit  plaintiff's  leg,  which  was  fractured  at  the  ankle.  All  of 
the  men  engiiged  on  the  work,  inclndiitg  Chapman  and  Lis  crew, 
were  under  the  control  of  Button. 

In  tlie  atncnded  declaration  it  was  averred  that  the  defendant 
did  not  use,  or  order  to^be  used,  the  necessary  machinery  ami 
appliances  for  the  safe  lifting,  holding,  staying,  and  removing  of 
«aid  car,  bat  carelessly,  willfully,  and  Tiegliwently  neglected,  failed, 
and  refused  to  use  the  same,  but  instead  thereof,  carelessly  and 
negligently  ordered  and  directed  the  use  of  a  prop  for  the  pur- 
pose of  holding  the  siiid  car  at  the  point  where  lifted,  which  was 
then  and  tliere  used  by  snch  order  and  direction ;  and  that, 
in  conseqnence  of  said  neglect  and  failure  of  the  defendant  to  so 
use  the  said  machinery  and  appliances,  and  in  carelessly  and  negli- 
l^ently  ordering  and  directing  plaintiff  aud  aaid  otlier  servants  to 
lift  and  remove  said  car  by  their  individual  strength,  and  in  tlie 
-careless  use  of  the  prop,  as  aforesaid, — theplaintifE  then  and  there 
exercising  all  due  care  and  caution  on  hie  part, — the  said  car  with- 
ont  any  wamiiig  whatever  to  plaintiff,  fell  back  upon  thegronnd, 
and  upon  the  leg  and  foot  of  plaintiff,  and  broke  and  crushed  the 
foot  and  ankle  of  plaintiff,  etc. ;  that  said  agent  giving  the  order 
to  place  the  prop  under  tiie  car  then  and  there  had  the  power  and 
authority  to  give  the  eaid  orders  and  directions  for  the  performance 
of  the  work,  and  was  then  and  there  exercising  sucli  power  and 
authority,  and  then  and  there  bad  full  control  and  superiDteudence 
of  said  work  and  the  details  thereof. 

In  the  circuit  court  plaintiff  recovered  a  judgment  against  the 
railroad  company,  which  was  affirmed  in  the  appellateconrt.  The 
<Jefendant  brings  the  record  here,  and  assigns  as  error  the  giving 
and  refusing  instructions  in  the  circuit  court. 

The  facts  in  this  case  upon  which  the  questions  of  law  are  raised 
are  quite  similar  to  the  facts  in  Cliicago  &  A.  R.  Co.  v.  May,  108 
111.  293 ;  6.  c,  15  Am.  &  Eng.  R.  E.  Cas.  320 ;  andthe 
law  as  declared  in  that  case  settles  the  real  questions  ^^^"g^^. ' 
of  law  presented  by  this  record.  If  the  plaimiff  had  *j^>«i™"-*"- 
occnpied  to  Button  the  position  of  a  fellow-servant  in 
the  same  line  of  employment,  he  might  not  be  entitled  to  recover 
for  the  injury  received.  But  Button  had  the  entire  charge  and 
control  of  the  wrecking  crew.  They  were  employed  by  him,  they 
were  under  his  command,  and  bound  to  obey  his  orders.  Wliere 
£ucb  was  the  relation  of  the  parties  in  the  May  Case,  it  is  said  : 
"When  a  railway  company  confers  authority  upon  one  of  its  em- 


^d  by  Google 


308       WABASH,  ST.  LOUIS  AMD  PACIFIC  E.  00.  V.  HAWK. 

ployees  to  take  charg^e  and  control  of  a  gang  of  men  in  carrj  ing 
on  some  particular  branch  of  its  bnaineeB,  such  employee  in  gov- 
erning and  directing  tlio  movements  of  the  men  nnder  his  charge 
witli  respect  to  that  branch  of  the  business,  is  the  dii-eet  repi-eeent- 
ative  of  the  company  itself,  and  all  commands  given  by  him  with- 
in the  scope  of  his  authority  are  in  law  the  commands  of  the  com- 
pany, and  the  fact  that  he  may  have  an  immediate  enperior  stand- 
ing between  him  and  the  company  makes  no  difference  in  this 
reepect,  .  .  .  When  he  gives  an  order  within  the  scope  of  liis 
antliority,  if  not  manifestly  unreasonable,  those  under  his  charge 
are  bound  to  obey  at  the  peril  of  losing  their  situatione ;  and  snch 
commands  are,  in  contemplation  of  Taw,  the  commands  of  the 
company,  and  hence  it  is  held  responsible  for  the  consequences." 
The  jury  found  that  the  plaiiitiff,  while  in  the  exercise  of  due  and 
proper  care,  was  injnred  through  the  negligence  of  the  direct  rep- 
resentative of  the  defendant.  That  finding,  having  been  affirmed 
in  the  appellate  conrt,  is  conclusive  here.  The  niling  of  the  court 
on  the  instructions  conformed  substantially  to  the  law  as  declared 
in  the  May  Case,  and  we  perceive  no  ground  upon  whicli  the  judg- 
ment can  properly  be  reversed.  Some  of  t!ie  instructions  may  not 
be  technically  accurate,  but  on  tlie  main  questions  involved  tliey 
conformed  to  the  law  as  heretofore  declared  by  this  court ;  and  the 
errors  committed,  if  any,  were  not  of  such  a  magnitude  as  to  au- 
thorize a  reversal  of  the  judgment. 

Tlie  judgment  of  the  appellate  court  will  be  affirmed. 

Sheliwn,  Ch.  J.,  dissents. 

Foreman  ;  Vice  Principal  or  Fellow-servant  of  Subordinatcf. — See,  ftener- 
all?.  McCsaker  j>.  Long  kland  H.  Co..  5  Am.  &  Eng.  K.  R.  Cm.  6U\  Fraker 
ti.  St.  Paul,  etc.,  R.  Co.,  15  lb.  850;  Chicago,  etc.,  H.  Co.  e.  May,  and  note, 
IB  lb.  830;  Willis  s.  Oregoo  R.  &  N.  Co..  17  lb.  539;  Peschel  e.  Chicago, 
etc.,  E.  Co.,  17  lb.  543;  Chicago,  etc.,  R.  Co.  e.  Miranda,  17  lb.  664:  Gil- 
more  u.  No.  Pac.  R.  Co.,  15  lb.  804;  Hannibal,  etc.,  R.  Co,  c.  Foi,  15  lb. 
S25;  Smith  c.  Sioux  Citj,  etc.,  H.  Co.,  17  Ih.  661;  Ooneior  e.  Mioueapolis, 
etc.,  R.  Co.,  38  lb.  BBl  n.;  McDermott  e.  H.  &  St.  Jo.  R.  Co.,  28  lb.  538; 
Couch  0.  Charlotte,  etc.,  R.  Co.,  38  lb.  831;  Kirk  r.  Atlanta  &  C.  A.  L.  R. 
Co.,  25  lb.  507:  Rochester,  etc.,  R.  Co.  o.  Brick.  21  lb.  BOB;  McKiDne  ». 
Cdliforius  So.   U.  Co.,  31  lb.  589;  Capper  «.  Louisville,  etc.,  R.  Co.,  Bl  lb. 


^d  by  Google 


MASTER    AND-  SEBVANT — FBLLOW-SEKVAUI. 


CmoAoo  AHD  Alton  B.  Co. 


(AdeoTiee  Oau,  lUinou.    Hay  22,  1887.) 

An  eugineer  and  a  car-inspector  are  not  fellow -seTrants,  and  a  rulroad 
compauj  is  liable  for  an  injury  to  the  latt«r  caused  bj  the  negligence  of  the 
former. 

Appeal  from  the  judgment  of  the  appellate  conrt,  tliird  dis- 
trict, affirming  the  jnaj^iiient  of  the  cirenit  conrt  a^inst  defend* 
ant  in  an  action  for  injury  tlirongh  negligence.     Affirmed. 

The  facts  are  stated  in  the  opinion. 

WilUama  <&  Capen  and  Fifer  tfi  Phillips  for  appellant. 

3f.    W.  Packard  and  James  S.  Ewing  for  appellee. 

SooTT,  Ch,  J, — TIlie  soit  was  bronj^Jit  by  Ralph  M.  Hovt,  in  the 
circuit  conrt  of  McLean  county,  against  tlie  Cliicago  &  AXtaa  K. 
Co.     It  was  broaght  to  recover  for  personal  injuries  VActa. 

sustained  by  plaintiff,  alleged  to  have  been  caused  by  the  negli* 
gent  conduct  of  defendant's  servants  in  charge  of  a  freight 
train.  The  judsraent  rendered  in  ^  the  circuit  court  in  favor  of 
plaintiff  was  affiimed  in  the  appellate  court,  and  as  the  case  comes 
before  this  court  only  questions  of  law  can  be  considered.  It 
seems  plaintiff  was  employed  in  the  yards  of  the  company  at  the 
station  where  the  acciaent  occurred,  and  had  been  for  many  years 
prior  to  the  time  he  was  injured.  His  duty  was  to  inspect  freight 
cars  on  their  ari-ival  at  the  yaixls.  The  evidence  tends  to  show, — 
And  that  fact  will  be  regarded  as  proved, — the  superintendent  of 
that  department  directed  him  to  go  upon  tlie  cars  immediately  np- 
-  on  their  arrival,  and  begin  the  work  of  inspection.  That  custom 
plaintiff  bad  observed  for  many  years.  On  the  morning  of  the 
□appening  of  the  accident,  a  freight  train  came  into  the  yards,  and 
immediately  upon  its  coming  to  a  full  stop  plaintiff  went  upon  the 
ear  next  the  engine,  and  commenced  his  usual  work  of  inspecting 
the  cars,  and  was  about  to  step  from  the  second  car  to  the  third 
car,  when  the  engineer,  without  warning,  suddenly  started  his  en- 
fine  with  such  unusual  force,  that  the  train  parted,  and  plaintiff 
falling  on  the  track,  received  severe  and  permanent  injaries. 
Plaintiff  testified  the  "jerk  was  so  violent  it  almost  raised  the  car 
from  the  track."  On  tiiis  branch  of  the  case  no  qnestion  is  made, 
nor  can  any  be  made  in  this  court,  against  the  finding  of  the  jury 
that  plaintiff  was  observing  due  care  for  his  persouu  safety,  aud 


^dbyGoOglc 


310  OHIOAOO    AND    ALTON    E.    CO.    ■».   HOTT. 

that  it  was  the  wrongfal  condnct  of  the  eogineer  that  cansed  the 
accident. 

The  defence  insisted  npon,  both  at  the  trial  and  in  this  court, 
is  that  plaintiff  and  tlieeiigine  driver,  whose  negligence  is  alleged  to 
have  caused  the  injarj,  were  fellow- servants  of  a  common  master 

and  engaged  in  the  same  line  of  eniployrnent,  and 
J12"15SreoTo2  therefore  tiiere  could  be  in  law  no  recovery  on  the 
iiB-ti-rr'^*"  principle  that  one  servant  of  a  common  master  engaged 

m  tile  same  service,  cannot  recover  for  the  negligence 
of  his  fellow-servant.  The  point  raised  waa  most  definitely  made 
at  the  trial  by  an  instruction  stating  the  law  applicable  to  fellow- 
servants,  and  which,  it  is  insisted,  had  it  been  given,  andhad  thejnry 
been  controlled  by  it,  wonld  have  secured  a  verdict  for  defendant. 
That  instruction  the  court  modified,  and,  as  modified,  counsel  for 
defendant  refueed  to  have  it  road  to  the  jury.  So  the  case  may  be 
considered  as  though  the  court  refused  to  give  the  instruction. 
Assuming,  then,  that  the  instrnction  as  asked  states  the  law  in  I'e- 
lacion  to  fellow  servants  accurately,  tlie  question  arises,  Was  the 
defendant  prejudiced  by  the  refusal  of  the  court  to  give  it?  That 
involves  the  inquiry  whether  it  is  applicable  to  the  facts:  or,  what 
is  the  same  thing.  Does  the  qneetion  whether  plaintiff  and  the 
enfi^ne-driver  were  fellow-servants  fairly  arise  in  the  case?  A 
brief  reference  to  the  evidence  will  be  necessary  to  a  solution  of 
the  question.  There  is  evidence  tending  to  show,  and  the  facts 
it  tends  to  establisli  will  be  regarded  as  proved,  that  when  a  train 
got  to  a  certain  place,  as  this  one  did  that  morning,  "  it  is  the  nstial 
thing  for  the  engine  to  goto  the  ronnd-house;  that  is  the  usual 
practice."  The  switch  engine  would  then  come  and  set  the  cars 
in  the  proper  place.  Of  course,  the  engine-driver  wonld  be  bonnd 
to  obey  the  yard-master,  and  if  he  received  a  signal  to  move  to  an- 
other locality  no  doubt  he  would  be  bound  to  observe  it.  But 
the  evidence  ie  full  to  the  point  when  the  engine-driver  came  to  a 
certain  place  and  stopped  the  train  it  *'  was  his  duty  to  go  to  the 
cngine-hoose."     One  reason  that  is  stated  why  plaintiff  was  re- 

3uired  to  go  upon  trains  so  soon  as  they  should  be  stopped,  to 
o  the  work  of  inspecting  them,  was  that,  after  the  train  eliould  be 
broken  np  by  the  switch  engine  and  set  apart  it  wonld  be  difficult 
to  find  those  that  had  not  been  inspected,  or  to  ascertain  when  the 
work  would  bo  completed.  Regai'ditig  these  facts,  which  the  evi- 
dence tends  to  establish  as  having  been  found  in  favor  of  plaintiff, 
it  seems  clear  the  duties  of  the  engine-driver  in  connection  with 
the  train  ceased  at  or  before  the  time  it  was  plaintiff's*  duty  to 
go  upon  it  to  begin  his  work  of  inspection.  On  that  liypothesis, 
now  is  it  possible  the  engine-driver  and  plaintiff  could  be  fellow- 
servants  engaged  in  a  common  service?  Inspecting  cars  after  they 
are  delivered  in  the  yards  can  have  no  relation  or  connection  with 
the  running  of  trains  to  distant  points.     It  is  not  the  same  service 


id  by  Google 


MASTER   AND    SEBVANT — FELLOW-SEEVANT,  311 

at  all.  A  car-inspector,  onder  such  circnmstances  is  no  more  a 
fellow-servant  with  ao  engine-driver  than  any  workman  in  the 
shopB  who  may  have  assisted  in  the  first  instance  in  making  the 
car.  It  was  said  by  this  coni-t  in  North  Chicago  Rolling  Mifi  Co. 
V.  Johnson,  114  III.  57,  that  the  servants  of  the  same  master  to  be 
coemplojees  so  as  to  exempt  the  master  from  liability  on  account 
of  injaries  sustained  by  one  resulting  from  the  negligence  of  the 
otlier,  aliall  be  directly  co-operating  with  eoch  other  in  a  particular 
bnsiness,  i.e.,  the  same  line  of  employment;  or  that  their  usual 
daties  shall  bring  them  into  habitual  association  so  that  they  may 
exercise  a  mntual  influence  upon  each  other,  promotive  of  proper 
cancion.  Adhering,  as  is  done  to  the  correctness  of  the  rule  stated, 
it  is  clear  the  case  in  hand  does  not  come  within  its  operation, 

PlaiTitiff  and  the  engine-driver  were  not  engaged  in  the  same 
business  at  all.  It  was  distinct  and  wholly  diSerent,  and  had  each 
continued  in  his  particular  bnsiness  for  any  indefinite  period  it  is 
hardly  probable  they  would  have  been  brought  into  any  relation 
where  one  might  have  exercised  an  influence  over  the  other,  pro- 
motive of  proper  cantion.  In  the  very  natnie  of  the  business 
each  was  engaged  in,  it  was  impracticable  for  one  to  have  had 
any  influence  over  ttie  otlier,  promotive  of  proper  cantion,  or 
otiierwise.  They  were  strangers  to  each  other  and  might  have 
remained  so  for  an  indefinite  time,  so  far  as  anything  in  their 
business  relations  would  have  brought  tliem  together.  It  is  true 
they  might  bave  beeii  fellow-servants  in  the  strictest  sense,  and 
yet  tliey  might  not  have  been  associated  an  hour  before  the 
liappening  ot  the  injury.  What  is  meant  is,  if  the  parties 
continue  to  be  eng:i<red  in  a  common  service,  they  will  be  habit- 
ually associated  so  that  tliey  may  exercise  an  innuence  over  each 
other  promotive  of  common  safety.  Tliat  never  conld  have 
occurred  in  this  case  for  tlie  obvious  reason  that  tlie  duties  of  the 
engine-driver  ceased  at  or  before  plaintiff's  would  begin,  so  that  it 
would  be  impossible  for  one  to  exercise  any  influence  whatever 
over  the  otlier.  The  doctrine  of  the  refused  instructions  could 
have  no  application  to  the  facts  of  the  case,  and  had  the  court 
given  it  the  effect  would  iiavc  iieen  to  direct  the  attention  of  the 
jury  to  an  issue  not  really  involved.  Tliere  was  no  error  in  refus- 
ing to  give  the  instruction,  and  whether  the  modification  made  by 
the  court  was  correct  or  not  need  not  now  be  considered.  So  far 
as  the  law  applicable  to  feliow-servants  had  or  conld  have  any  ap- 
plication tc  the  facts  of  the  case,  it  was  Btated  witii  sufficient  full- 
ness by  the  court  in  the  instructions  given.  In  the  view  taken, 
defeudant  was  not  prejudiced  by  the  refusal  of  the  court  to  ia- 
strnct  as  it  was  asked  to  do. 

The  judgment  of  the  appellate  court  will  be  affirmed. 

Car-Inspector  u  Fellow-servant  With  Train-men.— See  Smith  v.  Potter, 


^d  by  Google 


312  ATCHISON,  TOPEKA,  ETC.,  R.  00.  V.  KOEHLEE. 

a  Am.  &  Bug.  R.  R.  Cu.,  140  ;  King  n.  Ohio,  etc.,  R.  Co.,  6  lb.  119;  Nash- 
TiUe,  etc.,  R.  Co.  e.  Foater,  11  lb.  180;  Mackia  o.  BoBton,  etc,  B.  (X,  15  It 
IW ;  Littl«  UUmi  B,  Co.  v.  Fiu  Patrick,  17  lb.  678. 


Atohisoit,  Topbka  and  Santa  S^  B.  Co. 


EoBHLEB,  Adtnx.,  etc 
(Adtwittf  Oate,  Kanta*.    yinmiAer  S,  1887.) 

K.  was  in  the  Krvice  of  a  railroad  compaa;.  engaged  od  the  track  and  in 
the  jard  of  the  company.  He  assisted  in  loading  &  car  of  iron  rails  trbich 
were  to  be  taken  to  oiher  portions  of  the  compniij's  road.  The  rails  to  be 
loaded  were  in  a  pile  10  feet  high  and  10  feet  from  the  track.  The  manner 
of  loading  wu  to  place  rails  as  bkids;  one  end  on  the  top  of  the  rail  pile, 
and  the  other  on  the  middle  of  the  track  l>elow.  Two  emplojees  of  the  corn- 
pan;  who  were  on  top  of  the  pile  placed  the  rails  on  the  skids,  and  allowed 
them  to  slide  down,  until  10  of  tbem  were  so  lowered.  Thej  would  Ifaea 
wait  until  eight  men  who  ware  on  the  ground  would  lift  the  rails,  and  shove 
them  into  a  car  which  was  standing  on  the  track  near  by,  and  also  until 
these  men  had  stepped  aside  out  of  danger,  when  those  on  top  would  lower 
a  like  number  of  rails,  which  would  in  turn  be  placed  in  the  car  b;  the  eight 
men  on  the  ground.  K.  was  one  of  the  men  ecgsgcd  in  placing  the  rails  in 
the  car,  and  after  lifting  the  last  rail  of  a  certain  lot,  but  l^fore  he  had 
stepped  aside,  and  without  waiting  the  usual  time  to  do  so,  the  employees 
OD  top  lowered  another  rail  which  »truck  him  with  great  force,  qruBhing  his 
leg,  and  from  the  eSects  of  which  he  died.  There  was  nothing  to  prevent 
those  on  top  from  seeing  that  K.  had  not  reached  a  place  of  safety.  Seld, 
that  he  had  a  right  to  expect  that  the  rail  would  not  be  thrown  down  until 
he  was  safely  out  of  the  way,  or  at  least  until  he  bad  sufficient  time  to  get 
away  after  warning  had  been  given ;  and  that  the  employees  on  top  of  the 
rail-pile  were  guilty  of  culpable  negligence  in  lowering  the  rail  as  they  did. 

The  character  of  the  employment  and  service  of  K.  st  the  time  of  the  in- 
jury places  him  within  the  provisions  of  the  act  which  makes  railroad  com- 
panies liable  to  their  employees  for  damages  resultiug  from  the  negligent 
ads  of  other  employees  (chapter  98,  Laws  1874;)  which  act  is  held  to  be 
valid. 

Ebbob  from  district  coart,  Barton  connty;  G.  W.  Noiooks, 
Judge. 

Geo.  B.  Peck,  A.  A.  Hurd,  and  M.  W.  Sutton  for  plaintjfi  in 
error. 

Diffenbac&er  db  Banta  and  S.  J.  Bay  for  defendant  in  error. 

Johnston,  J. — Susanna  Koehler  bi-ouglit  this  action  against  the 
railroad  company,  as  tlie  pei-sonal  repi'eBentative  of  Karl  Koeliler, 
deceased,  to  recover  datnaj^es  enstaiiied  bj  reason  of  hie  death, 
rum.  wliich  occiiri-ed  while  he  was  in  the  service  of  tlie  com- 

pany, and  wliicli  is  alleged  to  have  been  caused  by  the  neglitfence 


^d  by  Google 


MASTER  AND   8EEVANT— FELL0W-8EEVANT  318 

■of  its  employees.  On  March  3,  1883,  he  was  engaged,  with  a 
DuiDber  oi  others,  in  loading  rails  on  one  of  the  care  of  the  com- 
pany at  Ellinwood,  Kansas,  and  while  bo  engaged  a  rail  was 
thrown  asainst  him  by  the  other  employees  of  the  company,  which 
«ruehed  his  leg,  and  he  died  from  the  effect  of  the  injury  two 
days  thereafter.  His  representative,  wlio  sues  for  the  benefit  of 
herself  and  seven  minor  children,  obtained  a  verdict  and  judg- 
ment for  $1500,  at  a  trial  had  at  the  June  term,  1885,  of  the  dis- 
trict coart  of  Barton  county.  The  railroad  company  brings  the 
case  liere,  and  raises  tliree  points  against  the  judgment:  First, 
that  its  demurrer  to  the  evidence  of  tlie  plaintiS  below  should 
have  been  sustained;  second,  that,  if  negligence  was  shown  iii  the 
case,  it  was  that  of  a  fellow-servant,  for  which  the  company  cannot 
be  held  liable;  and,  third,  that  the  act  of  1874,  under  which  the 
liability  is  sought  to  be  established,  ie  unconstitutional  and  void. 

The  first  point  made  involves  the  question  wliether  the  testi- 
mony of  the  plaintiff  below  witli  respect  to  negligence  was  suffi- 
cient to  sund  the  case  to  the  jury,  and  to  support  the  verdict  ren- 
dered. It  appears  that  the  iron  rails  which  were  being  loaded 
were  in  a  pile  at  the  side  of  the  track,  which  was  10  or  12  feet 
high,  and  about  10  feet  away  from  tlie  track.  To  lower  tile  rails 
from  the  pile,  two  skids  were  used ;  placing  one  end  on  the  top  of 
the  rail  pile,  and  the  other  on  the  middle  of  the  railroad  track. 
Two  men  on  top  of  the  pile  would  bring  forward  six  or  eight 
rails  to  the  edge  of  the  pile  and  to  the  end  of  the  skids,  and  then 
lift  them  on  the  skids  one  at  a  time,  and  allow  them  to  slide  down 
to  the  gronnd,  and  to  the  middle  of  the  railroad  track.  A  stock 
■car  was  standing  on  the  track  a  few  feet  from  the  end  of  the  rails 
thus  thrown  down,  and  eight  men  who  were  on  the  ground  would 
lift  these  rails  one  at  a  time,  and  put  them  into  the  car,  whiie  two 
men  who  were  inside  of  the  car  placed  them  in  position.  Another 
man,  designated  by  some  as  ''  boss,"  and  otiiere  as  a  "  foreman,"  sat 
at  one  side,  and  kept  a  tally  of  the  rails  as  they  were  loaded. 
When  the  rails  thrown  down  were  placed  in  the  car,  these  eight 
men  would  step  aside  until  the  men  on  top  would  slide  down  six 
or  eight  more  rails  when  tlie  men  would  return  to  load  them  into 
tlie  car.  Koehler  was  at  work  at  the  end  nearest  the  car.  He 
vith  others  on  the  ground  had  just  placed  the  last  rail  of  a  certain 
lot  in  the  car,  and  had  not  yet  passed  aside,  when  the  men  on  top 
threw  down  a  rail,  whicli  struck  Koehler,  and  resulted  in  his 
ileath.  A  very  brief  time  elapsed  between  the  loading  of  the  last 
rail,  and  the  starting  of  the  other  from  the  top.  Several  of  the 
men  were  in  the  way  when  it  started,  but  all  escaped  exce|)t 
Koehler.  He  had  started  to  get  out  of  the  way,  and  when 
apprised  that  tlie  rail  was  coming  he  made  a  strong  effort  to  avoid 
the  danger,  but  failed. 

The  daty  of  the  men  on  top  of  the  pile  was  clear.    They  onght 


^d  by  Google 


314  ATCHISON,  TOPEKA,  ETC.,  E.  CO.  V.  KOEHLEB. 

to  liave  given  the  men  below  a  reasonable  time  to  step  aside  and 
oat  of  danger.  Not  only  that,  bnt  tliej  elionld  not  have  lowered 
a  rail  until  the  men  on  the  gronnd  had  reached  a  place  of  safety. 
There  was  no  obstruction  in  the  way,  and  hence  those  on  top 
could  see  when  the  men  below  had  completed  their  task,  and  had 
stepped  aside.  It  was  not  necessary  that  the  rails  shoald  be  low< 
ered  with  exact  regularity  as  to  time ;  nor  need  they  lower  any 
nncil  tlie  way  was  clear.  It  seems  that  sometimes  the  men  on  top 
would,  before  starting  the  first  rail,  ebont "  Look  ontPand  the 
boss,  or  some  one  below,  would  respond  "Ready!"  and  then  the 
rail  would  be  lowered ;  but  tliis  was  not  always  done.  Just  as  the 
rail  was  dropped  which  did  the  injury  some  one  said  "Look  ont!" 
but  all  agi'oeii  tliat  the  rail  descended  with  such  velocity  tiiat  there 
was  not  sutHcient  time  after  it  started  for  Koehler  to  get  out  of  its 
way.  It  is  insisted  on  behalf  of  the  company  that  if  Koehler  had 
looKed  up  he  might  have  seen  tliat  tJie  rail  was  about^  to  be  tlirown 
down  and  have  gotten  ont  of  the  way;  and  also  thiit  if  he  had 
moved  more  quickly,  nnd  in  another  direction,  he  mi^ht  have  es- 
caped. Thcra  is  plenty  of  testimony  offered  ,on  belialf  of  the 
plaintiff  below  to  show  that  Koehler  had  no  fair  warning  or  op- 
portunity to  avert  the  injury. 

J,  H.  Parkersoii,  a  witness  for  plaintiff  below,  testified  as  fol- 
lows; "  Question.  Yon  may  state  to  the  jury  whether  or  not  Mr. 
Koehler  did  not  get  ont  of  the  way,  if  you  know.  Answer.  He 
could  not.  Q.  You  say  he  could  not;  why  could  he  not?  A. 
"Well,  I  think  that  it  came  too  fast  for  bim.  .  .  .  Q.  Well,  Iiad 
those  on  the  rail  pile  been  in  the  habit  or  not  of  waiting  for  the 
parties  who  were  loading  the  iron  below  to  get  ont  of  tiie  waj-  be- 
fore throwing  down  other  iron  )  A.  Yes,  sir.  Q.  Well,  did  they 
or  not  wait  long  enough  for  these  parties  to  get  out  of  the  way  when 
they  threw  this  piece  of  iron  down  which  stnick  Mr.  Koehler  t 
Had  he  time  to  get  out  of  the  way  after  loading  the  last  bar  of 
iron  before  it  struck  him?  A.  I  hardly  think  he  did.  Q.  Well, 
now,  how  long  was-it  between  the  loading  of  the  last  rail  and  the 
coming  down  of  the  other  rail?  A.  \  ao  not  know  how  long  it 
was,  Q,  Well,  give  it  as  near  as  you  can — whether  or  not  it  was 
almost  instantaneous.  A.  It  seemed  like  a  very  short  time;  I 
know  we  had  not  lifted  the  rail  out  of  the  way  aud  in  the  car." 
On  cross-examination  he  was  asked:  "Question.  How  many  men 
were  there  handling  that  rail — that  put  it  in  %  Answer.  I  do  not 
know  whetiier  there  were  eight  or  ten.  Q.  Well,  they  all  got 
out  of  the  way,  didn't  they  ?  A.  Yes,  sir ;  they  all  got  out  of  the 
way.  They  were  not  out  of  the  way,  though,  when  the  rail 
started.  Q.  They  all  got  out  of  the  way  except  this  one  man 
that  got  hurt?  A.  Yes,  sir.  Q.  Well,  this  man  had  just  as  mnch 
time  to  get  out  of  the  way  as  any  other  ?     A.  No,  he  didn't  have." 


^d  by  Google 


MA8TBB  AND  SEBTANT — FELLOW-SERVANT.  315- 

On  a  re-examination  lie  testified  as  follows ;  *'  Queation.  Then  you 
Bay  that  from  where  you  aaw  tliem,  that  it  was  iinpoeeiWe  for  him 
to  get  oat  of  the  way  of  the  iron  that  was  thrown  down  from  tiie 
pitB?  Answer.  Tea,  sir;  it  was.  When  the  iron  started  it  wa» 
impossible  for  him  to  get  out  of  the  way.  Q.  Well,  now,  you 
epoke  of  anotiier  man  being  by  bis  side  ?  A.  Tes,  sir ;  Hr.  Saner.. 
Q.  Well,  how  was  it  with  him )  A.  Well,  I  believe  that  if  it  had 
not  ciinght  Koehler  it  would  have  caught  him.  Q.  If  it  had  not 
cangiit  Koehler  it  wonld  Ijave  canght  liiin  }  A.  Yes,  sir  ;  he  was- 
ahead  of  Koehler,  and  it  seemed  as  though  Koehler  bad  jumped 
against  hini,  and  probably  helped  him  along  a  little.  Q.  By 
Koehler  jumping  against  him  pushed  htm  out  of  the  way,  and  saved 
him  i    A.  Tes,  sir." 

Kobert  Hutton,  the  foreman  in  charge  of  the  men,  testified 
among  other  things,  as  follows:  "  Question.  Well,  you  may  stale 
whether  or  not  in  your  judgment,  he  had  time  to  get  away  after 
loading  the  other  rail  J  Answer.  He  had,  if  he  knew  tbe  rail  was- 
coming.  Q.  But  not  knowing  it}  A.  But  not  knowing  it,  after 
the  rail  started,  he  didn't  have  time.  Q.  Well,  after  the  loading- 
of  tbe  other  rail  into  the  car,  how  soon  was  the  other  rail  thrown 
down?  A.  Oh,  it  was  not  but  a  few  moments.  ,  ,  .  Q.  Well, 
was  not  the  rail  thrown  quicker  tiian  naual  after  the  loading  of  the- 
iron?  A.  Yes,  sir;  I  thmk  it  was."  Further  along  the  same  wit- 
ness was  asked:  "  Question.  If  those  men,  then,  had  looked  toward 
that  pile  of  iron  before  they  started  to  go  through,  there  was  noth- 
ing to  prevent  them  from  seeing  that  the  men  on  top  was  starting 
iron  down,  was  there?  A.  Well,  notliing  to  prevent  them  seeing 
they  were  ready  to;  hut  then  the  men  on  the  ground  were  not 
supposed  to  look  up  to  a  pile  of  iron  12  feet  high.  Those  men 
who  were  on  top  were  to  look  down,  and  see  if  the  men  wero 
ready,"  At  another  time  this  witness  was  asked:  "Yon  say  that 
it  was  tlie  business  of  the  men  on  the  pile  to  see  tliat  everything 
was  clear  below  before  throwing  the  iron?  Answer.  Yes,  sir;  it 
was,  most  assuredly.  Q.  Then,  at  that  time  it  was  not  clear?  A. 
The  ground  below  was  not  clear  just  at  that  time  quite.  Q.  I 
mean  the  men  were  not  out  of  the  way  ?  A.  Mr.  Koehler  and  Mr. 
Saner  was  not  out  of  the  way." 

Joseph  Sehennoly,  another  witness,  was  working  by  the  side  of 
Koehler  when  the  rail  fell,  and  stated  tiiat  tlie  uenal  time  was  not 

fiven  for  the  men  to  get  out  of  the  way  before  the  rail  was  sent 
own.  He  stated  that  one  of  the  men  on  lop  let  go  of  the  rail, 
while  the  other  held  on  a  moment,  and  shonted  "Look  out!"  but 
he  quickly  let  it  go.  The  witness  stated  that  he  was  in  the  way,, 
but  when  it  started  he  saved  himfielf  by  a  quick  jump. 

BimoD  Epps  testified  that  he  was  working  m  company  witb 
Koehler  at  the  time  of  the  injury,  and  that  Koehler  had  no  time 


^d  by  Google 


316  ATOHISON,  TOPEKA,  ETC.,  B.  CO.  V.  KOEHLEK. 

between  the  loading  of  the  last  rail  and  the  loweriag  of  the  other 
to  get  out  of  the  way. 

There  is  some  testimooy  teudine  to  show  that  Xoehler  would 
have  had  a  better  chance  to  escape  if  he  had  moved  more  quickly, 
and  in  another  direution.  But  it  is  also  shown  that  he  was  pro- 
ceeding in  the  usual  way  to  a  place  of  safety  ;  and  it 
PLUHTim  oo-  inrther  appears  that  the  rail  was  precipitated  upon  him 
BO  suddenly  that  little  time  was  given  for  rejection  as 
to  the  safer  course.  It  did  not  devolve  on  him  to  watch  the 
movements  of  the  men  on  the  top  of  the  pile,  nor  to  anticipate 
that  they  would  depart  from  the  usual  course  of  waiting  until  the 
way  was  clear.  He  had  a  right  to  expect  that  no  rail  would  be 
thrown  down  until  he  was  out  of  the  way,  or  at  least  until  he  had 
sufficient  time  to  get  away  after  a  warning  had  been  given.  Com- 
mon prudence  and  the  most  ordinary  care  would  dictate  that  such 
a  course  should  be  pursued.  We  cannot  sav,  from  the  testimony, 
that  the  injury  wa£  the  result  of  Xoehler's  /ault,  and  the  evidence 
against  which  the  demurrer  was  directed  abundantly  shows  negli- 

fsnce  on  the  part  of  th(»e  who  threw  the  rail  against  him.  On  a 
emurrer  to  the  evidence,  ail  that  is  required  to  send  the  case  to 
the  jury  is  that  the  testimony  fairly  tends  to  establish  the  essential 
facts  of  the  case ;  and  we  are  of  opinion  that  more  than  this  was 
«hown. 

The  next  contention  of  the  plaintiff  in  error  is  that  the  employ- 
ment of  Koehler  was  not  connected  with  the  operation  of  the  rail- 
road so  as  to  make  the  company  liable  for  tne  injuries  inflicted 
upon  him  througli  the  negligence  of  a  coemployee. 
'  Koehler  was  a  track  or  section  hand,  who  worked  on 
i  the  track  and  in  the  yard.  The  first  part  of  the  day  on 
which  he  was  injured  he  was  engaged  with  a  crew  in 
repairing  the  railroad  track,  and  in  the  afternoon  he  as- 
sisted in  loading  the  rails  for  use  on  other  parts  of  the  coiiipany's 
road.  He  was  therefore  an  employee  and  engaged  in  the  business 
of  the  company  when  injured.  The  service  was  actually  per- 
formed on  the  company's  road,  was  necessary  to  its  use  and 
operation,  and  the  result  in  the  case  sufficiently  shows  the  hazard- 
ous character  of  the  service.  The  case  of  Eailway  Co.  v.  Harris, 
33  Kan.  416 ;  a.  c,  21  Am.  &  Eng.  E.  K.  Cas.  684,  rules  the  pres- 
ent action.  There  a  section-man,  who,  with  others,  was  engaged  in 
unloading  rails  from  a  car,  to  be  used  in  the  reoair  of  the  track, 
was  injured  through  hia  co-employees  carelessly  tnrowing  a  rail  on 
his  foot ;  and  on  a  like  objection  he  was  held  to  be  within  the  pro- 
tection of  the  statute.  The  character  of  the  employment  is  sub- 
atantially  the  same  in  both  cases,  and  the  reasoning  there  applies 
here,  and  need  not  be  repeated.  See,  also,  Trust  Co.  i;.  Thompson, 
25  Ran.  5. 

The  third  and  linal  point  contended  for  by  the.  plaintiff  in  error 


^d  by  Google 


MASTER  AND  SERVANT — FELLOW-SEEVANT.  317 

is  that  chapter  93,  Sess.  Laws  1874,  which  makes  a  railroad  com- 
pany liable  for  injury  sostained  by  one  servant  on  ac- 
connt  of  the  D^hgeDce  of  a  co-employee,  is  class  legis-  ^tv  o-  law 
l&tion,  which  is  forbidden  by  both  the  State  and  federal  kt  luble  fob 
constitution,  and  is  void.  This  question  lias  been  uev-  Fiiiov?""™' 
eral  times  considered  in  this  court,  and  decided  ad- 
versely to  the  contention  of  plaintiff  in  error.  It  is  settled,  so  far 
as  may  be,  by  tbis  court,  that  the  statute  is  valid.  Kailway  Co.  v. 
Haley,  25  Gao.  35 :  s.  c,  5  Am.  &  Eng.  R.  R.  Gas.  594 ;  Railway 
Co.  V.  Mackey,  33  Kan.  298 ;  a.  c,  22  Ara.  &  Eng.  R.  R.  Gas.  306. 
See,  also,  Railway  Go.  v.  Humes,  115  V.  S.  512 ;  b.  e.,  Am.  &  Eng. 
R.  R.  Gas.  557. 

It  is  expressly  stated  that  the  other  assignments  of  error  are 
not  insisted  on,  and  therefore  we  will  not  consider  tliem ;  and,  as 
the  points  made  against  the  judgment  cannot  be  sustained,  there 
must  be  an  affirmance. 

All  the  justices  concurring. 

Liability  of  Railroads  for  Injuries  of  Fellow-Mrvants  Under  Statutes,— luo^ 
following  are  eiatuples  of  such  siaiuces:  Id  r<wa  it  ia  provided  that  "every 
corporstion  operating  a  railway  aball  be  liable  for  all  damages  Bu^tained  by 
any  person,  including  employees  of  such  corporation,  in  coosequence  of  the 
neglect  of  agents,  or  by  any  miamanageoieat  of  the  engineers  or  other  em- 
ployees of  the  corporation.  And  in  consequence  of  tbe  wilful  wrongs, 
whether  of  connnisHon  or  omiBsion,  of  Buch  agent*,  engineers,  or  other  em- 
ployees, whence  such  wrongs  are  in  any  manner  connecied  with  the  use  and 
Operation  of  any  railroad  on  or  about  which  they  shall  be  employed,  and  no 
contract  which  restricts  such  liability  aball  be  legal  and  binding."  Iowa 
Code.  pars.  13-TB,  1307.  In  Kaiuai  (Comp.  Laws  1879  Ch.  84,  par.  2B)  it  is 
provided  that  "  Every  railroad  company  organized  or  doing  business  in  this 
State  sball  be  liable  for  all  damages  done  to  any  employee  of  such  company 
in  consequenhe  of  any  negligence  of  its  agents,  or  by  any  mismanagement  of 
,   its  engineers  or  other  employees,  to  any  person  sustaining  such  damage." 

In  Wisconsin,  every  railroad  corporation  is  made  liable  for  all  damages 
anatftined  by  any  agent  or  aervant  thereof  by  reason  of  the  negligence  of  any 
other  agent  or  servant  thereof,  without  contrihutory  negligence  on  his  part, 
nor  sustained  within  that  State."  The  Revised  Statutes  of  Wisconsin,  sectiona- 
18-16. 

Such  Statutes  Constitutional. — An  effort  has  several  limes  been  made  to 
declare  such  statutes  unconstitutional  upon  the  ground  that  they  are  in  con- 
flict with  that  provision  of  the  14th  amendment  of  the  United  Blates  Consti- 
tution which  guarantees  equal  protection  of  the  laws.  Upon  this  point  the 
court  observes  in  Bucklew  v.  Cent.  Iowa  ft.  Co.,  31  N.  W.  Rep.  107, "The 
argument  briefly  stated,  is  that,  under  the  statute,  railroad  corporations  are 
Bubjected  to  penalties  and  liabilities  which  other  corporations  and  persons 
0[>ff*Sed  '1  like  business  are  not  subjected  to.  That  the  business  of  operat- 
ing a  railway  is  peculiarly  hazardous  to  persons  engaged  in  the  operation  of 
the  road  must  be  admitted.  The  counsel  have  not  called  our  attention  to 
any  buuness  which  is  equally  hazardous,  and  as  the  statute  is  applicable  to 
all  corporations  and  persons  engaged  in  operating  railroads,  it  seems  to  us 
that  it  does  not  discnminate  in  favor  of  or  against  any  one.  We  think  this 
a  pure  question  of  legislative  discretion  whether  the  same  penalties  and  lia- 
bilities should  be  applied  to  carriers  by  canal  or  stage  coach,  or  to  persons  or 


^d  by  Google 


318  ATCHISON,  TOPEKA,  ETC.,  E.  CO.  V.  KOEHLEE. 

■corporatiODB  using  steam  iu  manufactories,  as  ia  prescribed  bj  statute  in  rela- 
tioD  to  railroad  companies.  The  provisions  of  section  80  of  Article  8  of  the 
-Constitutioa  of  this  State,  and  the  14th  amendment  of  the  Constitution  of 
the  Uuited  States,  are  quite  similar,  if  not  in  spirit  identical,  in  so  far  as  ei- 
ther caa  be  said  to  prohibit  the  legislature  from  conferring  eiclusive  privi- 
leges on  au;  persoDS,  or  imposing  penalties  upon  sn;  corporation  vhich  are 
not  shared  bj  others  under  like  circumstances  \  and  it  was  held  in  HcAunich 
t).  Mississippi  H.  R.  Co.,  20  Iowa  330,  that  the  statute  under  consideration 
did  not  conflict  with  the  Constituduu  of  this  State,  and  for  like  reasons  we 
did  not  tbinlc  it  conflicts  with  the  ConstlCutlnn  of  the  United  States." 

See,  also,  Ney  o.  Dubuque,  etc.,  R.  Co.  30  Iowa  S47;  Horeo  v.  Burlington, 
■etc..  R.  Co.,20fowaaS2i  Hunt  d.  Chicago,  etc.,  R.  Co.,  26  Iowa 363;  Henick 
«.  Minneapolis,  etc.,  K.  Co.,  31  Minn.  II ;  s.  c,  11  Am.  &  Eng.  R.  R.  Caa.  2S6. 
A  similar  construction  has  been  put  upon  the  Kimsat  statute  which  was 
adopted  from  that  of  loma.  Missouri  PaciQc  R.  Co.  e.  Haley,  2S  Kan.  SS; 
s.c.,8  Am.  &Eng.  H.  R.Cas.SB4;  Missouri  Pacific  R.  Co.e.Mackey,  33  Kan. 
-2S8i  s.  c,  22  Am.  &  Eng.  R.  R.  Cas.  30Q. 

In  England,  the  Employers'  Liability  Act,  IBBO,  L.  R.  IS  and  16  Qen.  Sts. 
358  (43  and  44  Vict.  c.  42)  governs  this  subject  Similar  statutes,  but  for  the 
most  part  not  so  broad  in  their  scope,  have  been  passed  in  a  number  of  the 
States.  Bee  California  Codes,  6970-71,  pars.  1970-71;  Dakota  Code.  1877, 
page  SeS.  §  1  art.  3,  following  that  of  California;  Georgia  Code  1873,  page 
.S21,  8036;  loaa  Code  18B0,  vol.  I.  page  342.  par.  1307;  SaritiuR.  L.  1879, 
page  784,  c.  84,  par.  4914  (enacted  1874) ;  STuiiigippi  Code  1880,  30B,  par. 
1054;  MotUatuiR-S.  1879.471,  par.  318;  .SAwi) /»fatid  Pnblic  Statutes  1883, 
r.S3,  c.  204,  par.  16 ;  Rev.  Stat.  1878.  page  S80,  sect.  1816;  Wyoming  Comp. 
Laws  1876,  page  S12.  c,  97,  Par.  11;  Misnouri  R.  8.  1879.  page  849.  o.  29, 
par.  2121.  In  ichroedern.  Chicago,  etc.,  R.  Co.,  41  Iowa  344,  it  was  held  that 
the  statute  only  applies  to  those  employees  actually  engaged  in  operating  a 
road,  and  not  to  those  whose  employment  is  disconnected  therewith.  This 
is  a  question  which  is  generally  for  the  jury.  The  statute  does  not  embraca 
-those  only  who  are  engaged  in  running  care  or  trains  with  engines  fastened 
theretn.nr  those  only  injured  by  such  trains.  Union  Trust  Company  e.  Thom- 
son, is  Eans.  1;  e.'c.,  3  Am,  &  Eng.  R.  R.  Cas.  S89.  But  in  Schroeder  v. 
-Chicago,  etc.,  R.  Co.,  47  Iowa  87S,  a  person  employed  by  a  railroad  cnmpany 
at  the  work  of  taking  down  and  removing  a  bridge,  whT>  was  eompelled  by 
orders  of  his  superior  to  go  upon  the  company's  trains,  and  while  so  doinff 
was  injured,  was  engaged  in  operating  the  road  within  the  statute,  and  * 
was  entitled  to  damages. 

In  Pynee.  Chicago,  etc.,  R.  Co.,  11  Cent.  L.J.  65,  it  waaheld  that  a  detec- 
tive in  the  employ  of  a  railroiid  company  directed  to  walk  along  the  track 
to  a  certain  point  in  the  dischai^  of  his  duties,  and  overcome  by  sunstroke 
or  some  other  cause  and  killed  by  a  passing  train,  was  within  the  provisions 
of  the  statute. 

What  Employee*  come  within  the  Provision  of  such  Statu-tet. — A  work- 
man in  the  compuiiy'ij  sliops  is  nut  within  [he  statute.  Putttr  v.  Chicago, 
■etc.,  R.  Co.,  47  Iowa,  899.  A  person  engaged  in  working  on  a  bridge,  and 
.  obliged  to  ride  on  the  company's  train  is  wiihio  the  statute.  Bchroederv. 
Cliicftgo,  etc.,  R.  Co.,  41  Iowa,  344.  A  section  hand  is  within  the  statute. 
Fandsden  e.  Chicago,  etc,.  R.  Co.  36  Iowa,  372.  And  a  hand  engaged  on  a 
gravel  or  dirt  train,  HcEnight  n.  I.  &  M,  It.  Const.  Co..  43  Iowa,  406;  Debbe 
o.  Chicago,  etc.,  R.  Co.,  36  Iowa,  53  See  Locke  u.  Sioui  City  R.  Co.,  46  lows, 
109.  A  person  employed  to  supply  men  with  water  on  a  construction  train 
and  to  collect  their  tools,  etc.,  is  an  employee  within  the  meaning  of  the  act, 
Missouri  Pacific  R  Co.  c.  Haley,  25  Ran.  39 ;  s.  c,  5  Am.  &  Eng.  R.  R.  Caa. 
-S94.  An  employee  of  a  railway  company  whose  duties  consist  in  wiping  ofl 
the  engines  and  in  opening  «ad  shutting  the  doors  of  the  round-house  is  not 


^d  by  Google 


'  MASTER  AND   SERVANT — FELLOW- SERVANT.  319 

■uch  an  e'roployee  "connected  witli  theuBeandopention  ofthe  railway"  as  can 
recover  for  the  negligence  oF  a  fellow-servant  in  shuUiDg  sucb  donrii. '  Ha- 
loae  V.  Burlington,  etc..  R.  Co.,  fll  Iowa.  !!2a;  .s.  c,  II  Am.  &  En;;.  R.'R.  Caa. 
laSi  e.  c,  17  Am.  &  ICng.  R.  R.  Caa.  S44.  A  material  man  and  train  diis- 
paCcher  for  a  railroad  havitig  auChoritj  to  empio;  and  discharge  men,  and 
direct  the  movetnent  of  trains,  is  not  such  a  fellow  employee  of  an  ordinnry 
track  laborer.    HcKune  v.  California,  etc.,  R.  Co.,  17  Am.  &  Eng.  R,  R.  Cas.  569. 

See,  also,  Lombard  v.  Chicago,  etc.,  R,  Co..47  Iowa,  494;  Atchison,  etc.,  R. 
Co.  c.  Farrow,  8  Col.  498;  b.  c,  11  Am.  &  Eng.  R.R  Caa.  33B. 

Under  English  Employer'i  Liability  Act.— 9ee  caseg  cited  in  note  to  Kansas, 
etc.,  R.  Co.  t>.  Peavy.  11  Am.  &  Eng.  R.  R.  Gas.  2T2.  See,  also,  Gibbs  «.  Great 
Western  R  Co,  L.  R.  11  Q.  B.Div.SS;  b.  c,  11  Am.  &  Eng.  R.  R.  Caa.  285; 
Gibbs  V.  Great  Weatera  R.  Co.,  L.  R.  12  Q.  B.  Div.  208 ;  a.  c,  15  Am.  &  Bag. 
R.R.  Caa.  336. 

PennsyUanla  Stfttute. — In  Pmiityhania  an  Act  of  Assembly  provides: 
"that  when  any  person  shall  sustain  personal  injury  or  loss  of  life  while 
lawfully  engaged  or  employed  on  or  about  the  roads,  works,  depots,  or  prem- 
ises, of  a  railroad  company,  or  in  or  about  any  train  or  car  thereon,  of  which 
company  such  person  is  not  an  employee,  the  right  of  action  and  recovery 
ia  all  Buch  cases  against  the  company  shall  be  such  only  as  could  exist  if 
Buch  person  were  an  employee."  Act  April  4,  19S8.  P.  L.  58.  In  Mulherrin 
v.  Delaware,  etc.,  R.  Co.,  81  Pa.  St.  866,  it  was  held  that  where  two  railroadi 
ran  parallel  with  each  other  at  a  distance  of  seven  feet  apart,  and  a  brake- 
man  having,  in  pursuance  of  hia  duty,  adjusted  a  switch,  while  returning  to 
bis  train  upon  the  track  of  the  other  company  was  run  over  and  killed,  the 
statute  applied  and  the  comp&ay  doing  the  killing  was  not  liable.  In  Cum- 
mtDgs  V.  Pennsylvania  R.  Co.,  93  Pa.  St.  82,  s.  c,  4  Am.  &  Eng.  R.  R.  Caa. 
524,  a  lad  employed  by  a  coal  dealer  and  engaged  in  unloading  cars  upon  a 
siding  constructed  by  the  dealer  upon  his  own  land,  and  injured  by  the  neg- 
ligence of  the  railroad  employees  in  leaving  open  a  switch,  could  not  ri-cover 
from  the  railroad  company.  See,  also,  Ricurd  n.  Pennsylvania  R.  Co.,  8Q  Pa. 
8t.  IBB;  Gerard  o.  Pennsylvania  R  Co.,  6  Weekly  Notes  Cases,  351;  Penn- 
Bylvania  R.  Co.e.  Price,  96  Pa.  tit.  25S;  a.c.l  Am.  &  Eng.  R.R.  Cas.  234;  118 
TJ.  S.  318;  B.c.,18  Am.  AEncr.  R.R.  Cas.  373. 

Contraett  with  the  Company  Relieving  them  from  Liability.— In  some  of 
these  statutes  it  is  provided  that  no  contract,  rule,  or  regulaciun  between  the 
cimpany  and  the  employee,  shall  impair  or  diminish  such  liability.  Rev. 
Stat,  of  WmoMiR,  1878,  p.  530,  sect.  1816;  Iowa  Code  H  1278-1807. 

In  England  it  has  been  held  that  the  employer  might  hy  express  contract 
preclude  himself  or  his  widow  from  cluming  such  benefit.  Grifleth  e.  Earl 
of  Dudley,  L.  R.  10  Q.  B.  Div.  857  (quoted  in  note  to  Eanaas  Paciac,  etc.,  R. 
Co.  V.  Peavy.  11  Am.  &  Eng.  R.  R.  Cas.  378). 

In  the  United  State*  the  contrary  doctrine  is  maintained.  Eaoeas  Pacific, 
etc.,  H.  Co.  *■  Peavy.  38  Kans.lflB;  a.  c.  11  Am.  A  Eng.  R.  H.Cas.  269. 

Contributory  Negligence  of  Employee  a  Bar  to  his  Claim.— Tlint  the  con- 
tributory negligence  of  the  employee  slmlt  serve  as  a  har  to  his  claim  to  re- 
cover under  such  statutes  is  settled  by  the  provisions  of  some  statutes  and 
by  the  construction  put  upon  others.  Rev.  Stat.  Witeim»in  1878.  p.  530.  acct 
1816;  Georgia  Code  of  1873,  sect.  8086,  p.  528.  See,  also,  Gumz  c.  Chirago, 
etC.,R.  Co.,  63  Wis.  672;  s.  c.  5  Am.  &  Eng,  R.  R.  Caa.  583:  Missouri  Pacific 
R.Co.  D.  Msckey,  83  Kans.  208;  b.  c,  23  Am.  &  Enp.  R,  R.  Cas.  306. 

Survival  of  Right  of  Action  to  Personal  Representation i.— It  is  held  that 
the  right  of  action  survives.  Philo  «.  Illinois  Central  R.  (;o..  88  Iowa  47; 
Gumz  p.  Chicago,  etc.,  R.Co.  53  Wis. 673;  s.  c,  5  Am.  &  Eng.  R.  R. Caa.  58S. 
McLeod  B.  Ginther,  80  Ky.  899;  s.  c,  15  Am.  &  Eng.  R.  R.  Cas.  391. 

Mitcallaneoui. — Under  auch  statute  in  Iowa  an  action  may  be  maintained 
against  a  company  in  the  handa  of  a  receiver,  and  property  in  tbe  receiver's 


^d  by  Google 


820  TONES  V.   CniCAGO,   MIIWADKEE,  ETC.,  R.    CO. 

hkods  is  liftble  for  the  payment  of  such  cUim  for  damAges.  Sloan  v.  Ceatnt 
Iowa,  etc.,  R.  Go.  63  Iowa,  733;  «.c.,  11  Am.  ft  Bag.  R  R.  Cas.  US. 

As  to  the  eSect  upon  the  question  of  liability  of  a  conflict  io  the  lav  of 
two  States  (Texas  and  Eaasas),  where  an  action  ia  brought  in  Enngaa  ^ainit 
a  railroad  campac;  For  an  injury  received  in  Texas,  aee  Atchison,  etc.,  H.  Co. 
«.  Moore.  39  Kans.  632;  s.  c,  11  Am.  &  Eng.  R.  R.  Cas.  343. 

In  Herrick  e.  Minneapolis,  etc.,  R.  Co.,  81  Minn.  11 ;  s.  c,  11  Am.  &  Eng. 
R.  R.  Cns.  356,  it  was  held  that  a  cause  of  action  which  occurred  in  the  State 
of  Iowa,  under  a  statute  of  that  State,  which  makes  ever j  corporation  operat- 
ing a  railroad  in  that  State  liable  for  all  damages  sustained  by  its  employees 
in  coDsequence  of  the  negligence  of  other  employees  of  such  corporation, 
when  such  wrongs  are  in  any  manner  connected  with  the  use  or  operation  of 
any  railway  on  or  about  which  they  shall  be  employed,  may  be  mainlained 
and  enforced  in  Minnesota. 

As  to  the  bar  of  the  statute  of  limitations  in  such  actions.  Atchison,  etc,  R. 
Oo.  e.  King,  15  Am.  &  Eng.  R.  R.  C<u.  330.  In  Solomon  R.  Co.  «.  Jones,  It 
Am.  ft  Eng.  R.  R.  Cas. 201,  the  Court  observes:  "No  distinction  is  made  as 
to  the  employment  or  duties  of  those  for  whose  knowledge  or  means  of 
knowledge  the  company  ia  responsible.  Doubtless  the  Act  of  1874,  Com^. 
Laws,  1876,  p.  784,  sect.  30,  has  changed  the  rule  of  liability  for  the  negli- 
gence of  employees  and  has  made  the  company  liable  to  one  employee  for 
injuries  caused  by  the  negligence  of  a  coemployee.  But  negligence  implies 
omission  at  duty.  Where  there  ia  no  duty  to  set  there  is  no  negligence  in 
failing  to  act.  And  the  same  is  true  where  there  is  no  power  or  authority  to 
act.  Or  where  knowledge  or  notice  is  brought  home  to  an  agent  who  hss 
no  duty  for  authority  in  the  premises,  the  corporation  cannot  be  charged 
with  Buch  knowledge  or  notice  or  held  liable  for  negligence  in  failing  to- 
ut thsngn." 


Chioaqo,  Milwaukee  and  St,  Paul  B.  Co. 

{Adixme»  Com,  WUamHn.     June  34,  1887.) 

A  atation  agent  having  general  superrision  over  the  tracks  and  IwitcbM  at 
bis  station,  and  a  brakcman  in  the  employ  of  the  same  company  are  fellow- 
servants.  and  the  company  is  not  liable  for  an  injury  to  the  latter  cwued  b' 
the  negligence  of  the  former. 

Appeal  from  Milwankee  county  conrt. 

Motion  for  a  rehearing. 

Dey  (6  Fnend  and  W.  C.  WiUiama  {Gerrii  T.  TKom  of  ooan- 
eel)  for  respondent.  Toner. 

John  W.  Gary  {H.  H.  F%M  of  coatiBel)  for  appellant,  Ohioago,, 
M.  &  St.  P.  R.  Co. 

CoLB,  C.  J. — By  the  special  verdict  the  station  agent  was  fonnd 
to  have  been  negligent.     Tiie  evidence  in  snpport  of  ench  findinirf. 


^d  by  Google 


HABTBR  AND  SEBVANT— FELLOW- SERVANT.  331 

if  a.ny,  is  very  slight.  Aseamins  it  to  liare  been  snfficient,  etill  a 
majority  of  tlie  coart  are  clearly  of  the  opinion  that,  under  the 
role  long  ago  established,  ench  negligence  must  be  regarded  aa  tliat 
of  a  co-employee.  Tiie  facte  bring  the  case  Bqiiarely  within  tiie 
rnle  sanctioned  in  Cooper  v.  Milwaukee  &  P.  dn  C.  R,  Co.,  23 
Wis.  668.  In  that  case  the  freigiit  train  was  rnnning  west  from 
Milton  to  Edgerton.  The  place  of  the  injury  was  some  30  or  40 
rods  west  of  the  bridge  across  Hock  river.  The  negligence 
chained  and  proved  consisted  in  the  fact  that  workmen  engaged 
in  repairing  the  track  at  that  point  had  taken  np  three  rails  at 
once,  without  giving  BsfBcient  notice  to  those  in  charge  of  the  ap- 
proaching train.  Tlie  negligence  was  conceded,  bnt  the  plaintlS 
Vas  non.6nited  on  the  ground  tSiat  snch  trackmen  were  co-employees 
with  the  injured  brakeman  on  the  train ;  and  the  jndgment  was 
affirmed  in  an  opinion  by  Dixon,  0.  J.  That  case  was  expressly 
simctioned  by  Eyan,  C.  J,,  in  Anderson  v.  Chicago,  M.  &  St.  P. 
R.  Co.,  3Y  Wis.  322 ;  Orton,  J.,  iit  Rowland  v.  Milwaukee,  L.  S.  <fe 
W.  R.  Co.,  54  Wis.  230;  s.  c,  5  Am.  &  Eng.  R.  R.  Cas.  578; 
Taylor,  J.,  in  Heine  v.  Chicago  &  N.  W.  R.  Co^58  Wis.  6S9,  and 
Peschel  v.  Cliicago,  M.  &  St.  P.  R.  Ga.,  63  Wis.  349 ;  s.  c,  17 
Am.  &  Eng.  R.  R.  Cas.  545.  To  the  same  e£Eeet,  Walker  v.  Bos- 
ton  &  M.  R.  Co.,  128  Mass.  8  ;  Henry  v.  Lake  Shore  &  M.  S.  B. 
Co.,  49  Mich.  495 ;  s.  c,  8  Am.  &  Eng.  R.  R.  Cas.  110 ;  Collins  v. 
St.  Paul  &  S.  C.  R.  Co.,  30  Minn.  31 :  s.  c,  8  Am.  &  Eng.  R.  R. 
Cas.  149 ;  Randall  v.  Baltimore  &  O.  R.  Co.,  109  IT.  S.  478 ;  8.  c, 
15  Am.  &  Eng.  R.  R.  Cas.  243.  To  constitute  fellow-servants, 
within  the  meaning  of  these  cases,  it  is  not  necessary  that  the 
negligent  workman  causing  the  injury  and  the  one  injnred  should 
both  be  eng.nged  in  the  very  same  particular  work.  It  is  sufficient 
if  they  are  employed  by  the  same  master,  under  the  same  control, 
and  performing  dnties  :uid  services  for  toe  same  general  purpose. 
Id.;  Lehigh  Vkl.  Coal  Co.  v.  Jones,  86- Pa.  St.  432 ;  Kew  Yoi^,  L. 
E.  &  W.  R.  Co.  V.  Bell,  28  Am.  &  Eng.  B.  R.  Cas.  338. 

Here,  the  station  agent  was  competent.  He  was  expressly 
charged  by  the  rules  of  the  company  with  tlie  dot?  of  being  out 
at  the  station,  and  knowing  that  everything  was  right,  when  trains 
were  passing,  and  to  keep  the  main  track  clear  and  unobstructed 
for  the  passage  of  tmiris,  or  to  give  timely  notice  of  such  obstruc- 
tion to  those  in  charge  of  approaching  trains.  Similar  duties  were 
imposed  upon  the  trackmen  in  Cooper  v.  Railway  Co.,  «u^a,  which 
they  neglected,  but  they  were  held  to  have  been  co-employees  with 
the  injnred  brakeman.  The  duty  of  keeping  the  track  clear  and 
anobstructed  for  the  passage  of  trains,  or  to  give  timely  notice  to 
those  in  cliai^  of  approacliing  trains,  is  no  different  in  principle 
when  applied  to  the  station  agent  and  the  portion  of  the  tniok  at  ■ 
or  near  tlie  depot  in  question,  than  when  applied  to  the  trackmen 
and  the  portion  of  the  track  30  or  40  rode  west  of  Rock  river,  in 
SI  A.  A  E.  a  Cos.— 21 


^d  by  Google 


333  HULLEHAN  V.  QKEEW  BAY,   WINONA  AND  8T,  PADL  E.  OO. 

tlie  Cooper  case.  If  the  negligence  of  tliose  charged  with  such 
duty  in  chat  case  was  tliat  ol  a  co-employee,  with  Uie*  brakemau, 
then  the  neeligenoe  of  the  agent  charged  with  snch  duty  was  that 
of  a  co-empToTee  with  the  brakenian  in  this  case.  It  ma;  be  that 
in  some  of  the  multitude  of  cases  involving  negligence — mixed 
qneetions  of  law  and  fact — eoine  things  may  have  been  said  by 
some  members  of  tlie  court  inconsistent  with  the  principle  thus 
aanctiooed  in  the  Cooper  case,  but  that  principle  has  been  too 
often  and  too  emphatically  pronounced,  and  too  long  maintained 
by  this  court,  not  only  in  the  ca^es  cited,  but  many  others  which 
might  be  cited,  to  be  regarded  ae  even  shaken,  mach  lees  overruled. 
The  facts  clearly  distinguish  this  case  from  that  class  where  the 
defective  condition  of  the  track  has  remained  so  long  that  the 
officers  of  the  company  are  presumed  to  have  had  notice  of  it,  u 
in  Hullehan  v.  Gi-een  Bay,  W.  &  St.  P.  R.,  infra  (decided  at 
this  term),  and  cases  of  that  character. 

The  motion  for  a  rehearing  is  denied,  with  $25.  coets. 

Lton  and  Cabsodat,  JJ.— We  concur  in  the  above  opinion. 

Station  Afant  and  Brakaman  art  Fallow-Mrvantt. — See  Goffaey  •.  Hew 
Toik  ft  N.  £.  B.  Co.,  and  noto,  anU,  p.  SftS. 


Gbbxk  Bat,  Wikona  asd  St.  Paul  B.  Oo. 
{Advanae  Com,  Wiietmnn.  '  Manh  Sd,  1887.) 

A  section  boM  whose  dutj  it  ii  to  keep  the  track  clear  of  obatmctioiu, 
and  in  a  suitable  conditioD  for  the  use  of  employees  who  uae  such  tracks,  is 
not  a  fellow-aervant  of  a  brakeman,  and  the  compan;^  '^  liable  for  an  iajurj 
to  tile  latter  caused  bj  the  nesligence  of  the  former  ia  allowing  sticks  ana 
blocks  of  wood  to  remain  on  tne  track. 

The  plaintiff,  a  bnkeman,  while  about  to  couple  some  cars,  stambled  on  a 
stick  of  wood  Ijing  on  the  track,  had  his  hand  caught  between  the  bumper*, 
and  was  injured.  He  knew  that  there  was  wood  scattered  along  the  track 
in  some  places,  but  hid  never  noticed  snj  at  the  place  where  he  was  injured. 
Bild,  that  whether  the  plaintiff  had  such  knowledge  of  the  neglect  of  the 
company,  in  respect  to  these  matters,  that  he  must  be  presumed  to  have  as- 
Bumed  tne  risk  of  such  neglect  was  a  question  of  fact  (or  the  jury.  Bdd, 
aiio,  that  the  burden  of  proving  that  plaintiff  had  knowledge  of  the  ob- 
struction before  the  accident  was  on  the  defendant. 

In  an  action  for  personal  injuries  it  is  proper  for  the  court  to  instruct  the 
jury  that  plaintiff's  expenses  for  medical  treatment  is  a  proper  element  of 
danutge,  and  a  general  exception  taken  to  such  instruction  as  a  whole  will 
not  be  sust^ned  where  it  is  merely  claimed  on  appeal  that  there  waa  no  evi- 
dence that  he  expended  anything  for  such  treatment. 


^d  by  Google 


MA8TEB  AND   SEEVAITr — PBLL0W-8BRVANT.  323 

AppKAi.  from  cii-ciiit  conit,  Trempealeau  countj. 
S.  C.  Higbee  ior  respondent. 
Geo.  G.  Greene  for  appellant. 

Tatlob,  J. — Tiie  respondent  was  a.  brakeman  on  the  appellant's 
road,  and  received  an  injniy  while  in  its  employ.  At  tlie  time  of 
receiving  tlie  injurj-,  lie  was  in  the  act  of  conpling  cai-s  fact*. 

of  said  compuny  on  eaid  ruad  in  tlie  nsual  course  of  his  empjov- 
ment.  This  action  was  brought  to  recover  damages  of  said  com- 
pany for  the  iiijnry  bo  received.  The  grounds  iipou  which  the 
plaintiff  seeks  to  charge  his  injury  to  the  negligence  of  the  com- 
pany are  set  fortli  in  tlie  complaint  SQbstantially  as  follows :  Thut 
it  was  the  pJaintifTs  dnty,  as  such  brakeman,  to  go  between  tlie 
freight  and  other  cars  for  tlie  purpose  of  coupling  and  uncoupling 
the  same,  using  the  appliances  therefor  provided  by  the  company, 
and  that  it  was  the  dnty  of  the  company  to  provide  safe  and  snit- 
able  appliances  therefor,  and  to  keep  its  track  in  repair  and  free  - 
from  obstrnction,  as  well  along  the  side  of  the  track  as  within  it, 
80  as  not  unneccBsarily  to  expose  its  employees  to  danger  of  per- 
sonal injury;  tlint,  notwithstanding  the  duty  of  the  defendant  in 
the  premises,  "  the  defendant,  on  the  18th  of  Noveralrei',  1882, 
and  for  a  long  time  prior  tliereto,  carelessly  and  negligently  suf- 
fered and  allowed  loose  blocks  of  fire-wood  to  be  scattered  about 
near  its  said  track,  and  along  and  close  to  the  margins  thereof,  near 
Plover  station,  on  the  west  side  of  said  road,  where  the  plaintiff 
and  other  brakeinen  were  obliged,  in  performing  their  duties,  to 
run  along  the  side  of  said  track  and  conple  and  niicouple  cars, 
thereby  rendering  it  nnnocessarily  dangerous  to  said  plaintiff  and 
other  brakeinen  in  the  performance  of  tiieir  duties.  The  com- 
plaint then  states  the  manner  in  which  the  plaintiff  was  injnred  as 
follows :  "That  on  or  about  tlie  18th  day  of  November,  1882,  and 
at  or  near  tlie  said  place  or  stution  called  Plover,  while  the  said 
plaintiff  was  in  the  employ  of  said  defendant,  as  aforesaid,  it  became 
the  duty  of  said  plaintiff,  as  brakeman,  and  necessary,  that  he  should 
go  quickly  between  a  box  car  and  a  fiat  car  to  make  a  conpling,  so 
called, — that  is,  to  conple  the  box  car,  which  was  being  pushed 
toward  the  fiat  car,  which  was  standing,  to  the  fiat  car;  that  said 

{ilainCiff  attempted  to  do  so,  as  he  was  in  duty  bound  to  do,  when 
lis  toe  or  foot  stnick  against  one  of  the  said  pieces  or  blocks  of 
wood  or  fire-wood,  without  any  negligence  or  carelessness  on  Ins 
part,  but  wholly  thronglt  the  shiftlessncss  and  carelessness  of  the 
said  defendant,  as  hereinbefore  set  forth,  and  said  plaintiff  was 
tiirown  witli  great  force,  head  first,  in  between  said  cai'S,  and,  to 
save  himself  from  being  cut  in  two,  he  caught  hold  of  the  drawbar 
of  the  flat  car  at  the  fi;une  time  as  the  drawbar  of  the  box  or 
moving  car  came  in  collision  with  it,  smashing  two  fingers  of  the 
left  hand  of  said  plaintiff,  and  permanently  and  for  life  maiming 


^d  by  Google 


S24  HtTLLBKAK  V.  OEEEN  BAY,  WINONA  AND  8T.  PAUL  E.  CO. 

and  crippling  a  tliird  finger,  bo  tliat  two  fingero  Lad  to  be  cut  off 
entirely,  and  the  ttiird  left  comparatively  nseless;  that  said  acci' 
dent  was  caneed  wliolly  by  the  ehiftleBsness  and  carelcESDese  of  said 
defendant  in  allowing  its  said  track,  and  the  margins  thereof,  to  be 
incnmbered  and  obstrncted  by  the  said  loose  blocks  of  wood,  uid 
withont  any  fault  whatever  on  the  part  of  said  plaiiitifE." 

Tlio  defendant  company  demurred  to  this  complaint  on  the 
ground  that  it  did  not  state  facts  enfticient  to  constitute  a  cause  o^ 
action.  Tbe  circuit  coart  oveiniied  the  demurrer.  From  the 
order  overruling  such  demurrer  the  defendant  appealed  to  this 
court,  and  upon  such  nppeal  this  court  affirmed  tlie  said  order,  hold- 
ing that  the  complnint  did  state  facts  sufficient  to  constitute  a  cause 
of  action.  See  68  Wis.  319-323.  The  cause  was  remitted  to  the 
circnit  court,  and  tlie  defendant  answered  tlie  complaint  by  admit- 
ting that  it  was  a  corponition  and  operated  a  railroad,  as  aileged  in 
aaid  complaint ;  admitted  the  employment  of  the  plaintiff  ae  al- 
leged in  tlie  comphiint,  and  that  by  such  employment  it  was  liis- 
duty  to  cotiple  and  uncouple  cars  on  said  railroad  as  occasion  should 
require.  As  to  alt  the  other  allegations  of  the  complaint  the  an- 
awer  was  a  general  denial. 

On  the  trial  in  tiie  ciiciit  court  the  jniy  were  directed  to  find  a 
epccial  verdict,  and  tliey  found  a  special  vei-diet  as  follows:  "fl) 
Were  tlie  injuries  coinphiined  of  by  the  plaintiff  caused  by  tlie 
negligence  of  the  defendant?  Answer.  Tes.  (2)  If  you  answer 
tbe  fii'sc  question  in  the  affirniative,  state  in  what  such  negligence 
consists.  A.  In  allowing  sticks  or  blocks  of  wood  to  remain  along 
the  track.  (3)  At  the  time  of  plaintiff's  injury,  how  long  had 
sticks  or  blocks  of  wood,  substantially  as  they  remained  at  the  time 
of  the  injury,  existed  along  the  track  where  plaintiff  was  injured  t 
A.  Scveml  days.  (4)  Did  the  existence  of  such  blocks  or  sticks- 
of  wood  make  it  dangerous  for  brakemen  to  couple  cars  at  the 
place  of  the  injury?  A.  Tes.  (5)  Were  tlie  sticks  or  blocks  of 
wood  along  llie  track  at  the  place  of  injury  allowed  to  fall  there 
by  the  employees  on  the  train  in  loading  the  tender!  A.  Yes. 
(6)  Of  the  defendant's  employees,  whose  duty  was  it  to  remove 
such  blocks- and  sticks?  A.  Section  foreman,  (71  Did  not  the 
blocks  or  sticks  exist  along  the  track,  snbstantially  the  same,  at  the 
time  of  the  injury  as  at  tbe  time  when  plaintiff  commenced  work 
as  biakemaTi?  A.  Yea;  about  the  same.  (8)  Did  plaintiff  know 
of  such  blocks  and  sticks  existing  along  the  track  at  the  time  of  the 
injury  in  question  ?  A.  No.  (9)  At  what  enni  do  you  assess  the 
plaintiff's  damages  I     A.  $1300>' 

After  the  rendition  of  the  special  verdict,  and  at  the  same  ternit 
the  defendant  moved  tbe  court  for  a  judgment  in  its  favor  on  anch 
specUl  verdict.  This  motion  was  deniea  by  the  court,  and  the  de* 
fendant  excepted,  aud  tlierenpon  moved  the  court,  on  the  judge's 
minates,  for  a  new  trial,  and  to  set  aside  the  verdict,  on  the 


^d  by  Google 


MASTER  AND  8ERVAWT— FELLOW-SflBVANT.  336 

'  pounds  stated  in  tbe  printed  case.  Tliia  motion  was  also  denied, 
and  the  defendant  excepted.  On  tlie  pIiiintiS'B  motion,  judgment 
was  I'endeied  in  liis  favor  on  said  vei'dict,  and  from  said  judgment 
tbe  defendant  again  appeals  to  tlie  court. 

We  tliiiik  tlie  decision  upon  tlie  denmrrer  in  tliis  case  most  be 
lield  iis  conclusive  upon  tbe  nppelliLiit  tbat  it  was  negligence  on  ita 
part  to  permit  its  traclce  to  bo  encumbered  witb  sticks 
and  blocks  of  wood,  in  tlie  mariner  alleged  in  tbe  com-  ^JISJ^S^S 
plaint,  at  all  places  wbere  tbe  plaintiff  was  called  upon  SrS^d.*™*" 
to  perform  liis  dnties  in  coupling  of  uncoupling  the 
■care  of  tbe  defendant.  Tbe  allegation  in  tlie  compiaint  is  "  tbat  it 
was  tlie  duty  of  tlie  compnn;  to  provide  safe  and  suitable  appliances 
for  coupling  and  nnconpiing  its  care,  and  to  keep  ite  track  m  reiKiir, 
and  free  from  obstructions, , as  well  along  tlie  side  of  tlie  track  as 
witbin  it,  80  as  not  unnecessarily  to  expose  its  employees  to  danger  of 

fiersonal  injnry,"  and  it  tben  alleges  fucta  sbo^'ing  tbat  such  duty 
lad  not  been  discbarged  by  tbe  conip-iny,  Tbis  court  bavnigbeld 
tbat  the  complaint  stated  facts  const! tutinga  cause  of  action,  it  would 
«eem  tlint  if,  npon  tbe  trial,  tbe  facte  are  proved  wbicb  are  alleged 
in  tbe  complaint  as  establisbing  tbe  neglect  of  sncb  duty,  imposed 
by  law  upon  the  defendant  to  be  discbarged  toward  tbe  plaintiff, 
its  employee,  tbe  defendant  cannot  be  beard  to  say  in  tbis  case  that 
no  such  duty  rested  upon  it.  Tbat  question  was  settled  against, 
hira  on  tbe  former  api>eal.  The  only  questions  to  be  determined 
upon  t]ie  trial  of  tbe  case  are  :  (1)  Has  the  plaintiff  established  by 
proofs  tbe  facts  set  up  in  tbe  complaint  as  constituting  the  negli- 
gence  charged  against  the  company  'i  (2)  Wiietber  sncb  negligent 
acts,  if  proved,  were  the  cause  of  the  injury  to  the  plaintiff.  ^3) 
Whether  tbe  plaintiff  bad  eucli  knowledge  of  tbe  neglect  of  tlie 
<omi>any,  in  respect  to  these  mattere,  tbat  be  must  be  presumed  to 
have  assumed  tbe  risk  of  such  neglect.  In  this  view  of  the  case  it 
was  incumbent  on  the  plaintiff  to  show  affirmatively  tbat,  at  tbe 
time  the  accident  happened,  tbe  track,  nt  the  place  ■ 
wbere  lie  was  called  upon  to  conple  tbe  cai-s,  was  in  an  Ji^Smrr'To 
nnsafe  condition  by  reason  of  sticks  and  blocks  of  wood  mit"""^ 
lying  along-side  of  and  near  tbe  track;  tbat  such  sticks 
and  blocks  of  wood  caused  bis  injury;  and  tliat  sncli  obstiTiction 
of  tbe  track  was  either  known  to  tbe  company,  or  bad  existed  for 
aach  length  of  time  before  tbe  accident  as  to  constitute  notice  to 
tbe  company  that  the  track  was  in  an  unsafe  condition  at  that 
place.  These  facts  are  all  found  by  tbe  jury  in  favor  of  tbe  plain- 
tiff, and  we  think  upon  evidence  which  is  sufficient  to  support 
sucb  findings.  Tbat  the  first  two  propositions  are  amply  sustained 
by  tlie  evidence  there  can  be  no  serious  question.  As  to  tbe  third, 
tbe  evidence  is  not  so  satisfactory.  Still  there  was  undoubtedly 
anfficient  evidence  to  send  that  question   to  tbe  jury  ;  and,  thej* 


^d  by  Google 


826  HTJIJ-KHAN  V.  GREEN  BAT,  WINONA  AHD  ST.  PAUL  S.  OO. 

having  found  Bnbetantially  in  favor  of  the  plaintiff  oa  that  point,  - 
tinder  proper  instructions  b;  the  coort,  the  findiog  cannot  be  diB> 
r^rded  b;  this  conrt. 

The  learned  connsel  for  the  appellant  insists  that  the  question 
vhether  negligence  in  keeping  the  roadway  in  a  safe  and  enitablo 
condition  is  negligence  which,  as  between  the  plaintiff 
Rt^"™™!™?  and  tbe  company,  must  be  cliargeable  npon  tlie  com- 
SmiJr.  f  pany,  or  upon  a  co-einployee  of  the  plaintiffs,  is  an  open 
question  in  this  cnse,  and  he  iias  Bnlimitted  a  very  able 
argument  npon  the  iiearing  to  satigfy  the  conrt  that  the  neglect  of 
the  company's  servant  who  ia  cliarged  with  tlie  duty  of  Keeping 
the  track  clear  of  obstructions,  and  in  a  safe  and  anitable  condi- 
tion for  use  by  those  employees  whose  duty  it  is  to  use  the  aame,  ia 
the  neglect  of  a  co-emplojee,  for  which  the  company  is  not  charge- 
able. While,  aa  said  above,  we  think  the  question  is  not  an  open 
question  in  the  case  at  bar,  we  are  of  t!ie  opinion  that  nnder  the 
proofs  in  this  case,  and  the  decieione  of  this  court,  the  negligence 
m  permitting  the  roadway  to  be  obstructed  with  sticks  and  block» 
of  wood  was  the  negligence  of  the  company,  and  not  merely  the 
negligence  of  a  co-employee  of  the  plaintiff,  within  the  rules  of 
law,  which  bold  that  one  co-employee  cannot  reco\ei-  of  the  master 
damages  for  injuries  caused  by  the  negligence  of  a  co-employe. 
Whatever  may  he  the  rales  of  otiier  courts  upon  tiiis  point,  we 
think  the  following  cases  in  this  court  settle  the  rule  against  the 
contention  of  tiie  learned  connsel :  Smith  v.  Railway  Co.,  42  Wis. 
520;  Brabl)itsv.RailwayCo.,38  Wis.289;  Wedgwoodv.  Railway 
Co.,  41  Wis.  478;  Schnltz  v.  Railway  Co.,  48  Wis.  375;  Porsey 
V.  Phillips,  etc.,  Co.,  43  Wis.  583 ;  Bessex  w.  Railw.iy  Co.,  45  Wis. 
479.  And  my  individual  opinion  is  that  the  rule  as  stated  in  the 
oases  above  cited  is  sustained  by  the  great  weight  of  authority  in 
this  country, 

Tlie  learned  counsel  for  the  appellant  insists  that  the  evidence 
discloses  that  the  plaintiff  had  full  knowledge  of  the  alleged  ob- 
Etruction  of  the  defendant's  tmek  which  caused  his  injury,  before 
tho  accident  happened  ;  and,  if  he  remained  in  the  employ  of  the 
company  after  eiicli  knowledge  on  his  part,  he  nssumed  all  the- 
risks  growing  out  of  such  obstruction.  This  alleged  state  of  facta 
is  matter  of  defeiice,  and  need  not  be  negatived  by  the  plaintiff  in 
making  out  his  case.  The  burden  of  tliis  defence  is,  under  the 
rules  estnhlishcd  in  the  courts  of  this  State,  upon  the  defendant. 
See  Randall  v.  Northwestern  Tel.  Co.,  54  Wis.  147;  Hoth  ». 
Peters,  55  Wis,  405  :  Kellv  v.  Railway  Co.,  60  Wis.  480  ;  Hoj^h 
V.  R-dhvay  Co.,  100  U.S.  2*25;  McNamara  ti.  Clintonville,62  Wis. 
207.  See,  also,  Railway  Co.  v.  Horsr,  93  U.  S.  291 ;  Railroad  Co. 
V.  Gladmon,  16  Wall.  401.  This  question  was  also  submitted  to- 
the  jury,  and  they  found  in  favor  of  the  plaintiff. 


^d  by  Google 


MASTEB  AND   SBBVAHT — FELLOW-SEEVANT,  327 

It  16  Dwd  that  this  finding  is  wholly  nnsapported  hj  the  evi- 
dence. We  think  otherwise.  The  evidence  shows  that  the  pkin- 
tiff,  when  be  received  his  injuries,  had  only  been  in  the 
defendant's  employ  as  a  bmkeman  about  two  weeks ;  SJowlSoS  □* 
that  he  knew  there  was  wood  scattered  along  tlie  track  SSE"'  ** 
near  the  wood-piles  on  the  road,  bnt  tliat  he  had  not 
noticed  that  wood  was  scattered  alone  the  track  at  the  place  where 
he  was  injured.  His  testimony  is  tlie  only  testimony  given  on 
the  trial  on  tlie  question.  His  evidence  shows  that  he  had  a  gen- 
eral knowledge  of  the  neglect  of  the  company  in  keeping  its 
tracks  clear  aoont  its  wood-yai-ds.  There  is,  nowever,  no  evidence 
showing  his  knowledge  of  the  condition  of  the  track  at  the  place 
where  tlie  injury  occurred.  This  evidence  is  not  conclusive  upon 
the  plaintiff  that  he  assumed  all  risk  which  arose  from  such  neg- 
lect of  the  company.  Even  had  he  known  of  the  existence  of  the 
wood  lying  along  tlie  side  of  the  ti-ack  at  the  place  where  he  was 
injured,  it  would  not  be  conclusive  against  him.  He  might  have 
had  a  general  knowledge  of  the  defects  of  the  road,  bat  may  not 
have  had  such  knowledge  of  the  dangerous  character  of  sncn  ob- 
stroctions  as  to  absolutely  charge  liim  with  the  assumption  of  all 
risks  arising  from  such  obstructions.  Notwithstanding  liis  knowl- 
edge of  the  fact  of  the  obstructions,  still  it  was  a  question  for  the 
jnry  whether  he  was  guilty  of  negligence  in  remaining  in  tlie  em- 
tAoj  of  the  defendant  after  such  knowledge.  For  this  reason,  and 
becanse  there  was  no  evidence  that  be  had  knowledge  of  the  par- 
ticular obstrnction  which  cansed  the  injury,  we  cannot  say  that  the 
verdict  of  the  jury  upon  this  qnestion  is  against  the  evidence. 
See  Spearbracker  v.  Larrabee,  64  Wis.  578  ;  Wheeler  u.  Westport, 
80  Wis.  393  ;  Cnthbert  v.  Appleton,  24  Wis.  387 ;  Ruflscll  v.  Rail- 
way  Co.,  32  Minn.  230 ;  s.  c.,  20  Aiji  &  Eng.  R.  B.  Cas.  191 ; 
Cook  V.  Railroad  Co.,  24  N.  W.  Rep.  311. 

The  appellant  excepts  to  a  few  isolated  sentences  in  the  chai^ 
of  the  court.  As  we  understand  it,  one  exception  to  the  charge 
is  that  the  judge  seemed  to  assnme  that  there  was  a  stick  of  wood 
near  the  track  where  the  accident  happened,  and  tliat  the  plaintiff 
stumbled  over  the  same.  Upon  this  qnestion  there  is  no  conflict 
of  evidence.  The  plaintiff  states  positively  that  there  was  a  stick 
of  wood  lying  on  the  end  of  tite  ties,  and  that  he  fell  over  it,  and, 
to  sav?  himself,  he  threw  up  his  hand,  and  so  received  the  iiijnry. 
We  think  the  learned  judge  might  well  assume  tliat  this  fact  was 
proved  in  the  case,  in  the  absence  of  anv  request  that  the  fact 
should  be  submitted  to  the  jury  as  a  fact  disputed  by  the  defend- 
ant. Anotlier  objection  to  the  instructions  is  that  they  ignore  the 
queBtion  whether  the  ne^^ligcnce  was  not  that  of  a  co-employee. 
This  objection  has  been  disposed  of  above  in  this  opinion. 

It  is  fnrtber  objected  that  the  judge  erred  in  stating  to  the  jury 


^d  by  Google 


328  HULLEHAN  V.  GREEN  BAT,   WINONA  AND  ST.  PApL  R.  CO. 

that,  in  estitnating  tbe  plaintiff's  damages,  "  he  would  he  entitled  to 
such  a  sum  as  he  reaaonahiy  expended  for  the  purpose  of 
mhIk^™'  m'  being  cured  of  hie  injury,  and  sneh  enni  ns  he  lost  for 
«™^io».  '"■  hieearnings  by  reason  of  the  time  wliicii  was  neceRsarily 
lost  by  Ins  injury.  He  is  n  so  entitled  to  bhcIi  snni  as 
will  fairly  compensate  him  for  the  disfignrement  of  liis  pei'son,  and 
the  impaired  use  of  his  hand."  It  is  nrged  tlmt  in  this  statement 
the  court  improperly  inqlnded  "what  he  had  reasonably  expended 
for  the  purpose  of  being  cured  of  his  injuries."  Tiiere  can  be  no 
doubt  bnt  that  tliis  is  a  proper  item  of  damages  in  cases  of  tiiis 
kind.  Bnt  it  is  nrged  thiit  the  plaintiff  fail,  d  to  show  by  Iiie  evi- 
dence that  he  had  expended  any  particular  sum  for  (hat  puqiose, 
and  therefore  the  inry  onght  not  to  take  that  into  consideration. 
Ho  did  show  that  lie liad  the  care  of  two  doctors, — one  immedi- 
ately after  his  injury,  and  another  a  day  or  two  after,  who  ampu- 
tated his  fingers.  There  are  two  eason^  wliy  tlje  defendant  ought 
not  now  to  avail  himself  of  tj^is  objection  :  First,  beeanse  the  rnJe  ns 
stated  was  the  correct  rule,  and,ifnotapplicabie  to  tiie  facts  of  the 
case  because  of  tlie  absence  of  any  ■  videtiee  siiowing  the  amount  of 
his  expenses  in  being  cured,  the  defendant  slionld  have  ciilled  the  at- 
tention of  the  court  to  that  fact ;  and  a  second,  and  perhaps  Ijclter, 
reason  why  the  defendant  should  not  no. v  avail  himself  of  the  objec- 
tion is  that  the  exception  was  not  to  the  particular  fact  which  is  now 
alleged  to  be  error,  but.  to  the  statement  as  a  whole.  The  excep- 
tion was  not,  therefore,  snfHciently  specific,  as  it  is  admitted  that 
most  of  the  matter  excepted  to  was  properly  given  to  the  jury. 
Had  the  specific  exception  been  taken  at  tlie  trial  which  is  noT 
taken,  it  is  highly  probable  tiiat  the  error,  if  an;-,  would  have  been 
corrected  on  the  spot. 

On  the  whole  record,  the  case  seems  to  have  been  fairly  tried, 
and  the  damages  awarded  are  moderate,  considering  the  extent  of 
the  plaintiff's  injuries. 

The  judgment  of  the  circuit  court  is  affirmed.   ■ 

Ssction  Boti  and  Train-man  aa  Fellow -tervantt. — See  Calvo  9.  Charlotto, 
etc,  R.  Co.,  38  Am.  ft  Eng.  R.  R.  Can.  827;  St.  Louis,  etc.,  R.  Co.e.  Weaver, 
»8Ib.  341.  .  , 

Section  Foreman  not  Fellow- servant  with  Switchman. — Hall  «.  Uiasonrt 
Pac.  B.  Co.,  8  Am.  &  Bag.  B.  B.  Gas.  lOS. 


^d  by  Google 


FEIXO  W-S  KBVANT — FIREMA  N — MASTER- MEOHAKIO. 


LoDiBTiLLK,  New  Albany  and  Chioack)  E.  Ool 

(_Advmee  Ca*e,  Indiana.     May  IT,  1867.) 

A  division  master-in eclianic  ia  not  &  fellow-serrBot  with  a  locomotlTe  fire- 
flian ;  and  a  railroad  company  is  liable  for  the  death  of  the-  latter  caused  bj 
the  parting  of  the  locomotive  and  the  tender,  owing  to  their  difference  in 
height,  after  tbe  master- mecbanlc  had  been  notiBed  of  the  defect. 

Appeai-  by  tlie  plaintiff  from  a  jndgnierit  of  tlie  La  Porte  cirenit 
court  in  favor  of  defendant  in  an  action  for  death  from  negligence. 
Revej-sed. 

Tlie  facts  are  stated  in  the  opinion, 


)pin: 
R  I 


David  J.  Wile  and  Frank  K  Osbom  for  appellant. 

Ex-LiOTT,  Cli.  J. — TIic  appellant's  intestate  was  in  the  service  of 
the  appellee  as  n  fireman  on  one  of  its  locomotives,  and  was  killed 
wliile  disciiarging  the  duties  imposed  npon  hitn  by  his  einplojinent. 

Tliure  was  evidence  showing  that,  bv  order  of  the  division 
master- mechanic  of  the  appellee.  James  McAnliffe,  a  Picia. 

tender  belonging  to  engine  Ko.  9  was  attuciied  to  engine  No.  5  ; 
that  the  deck  of  the  tender  was  3  to  4  inches  higher  tlian  the  deck 
of  the  engine  to  which  it  waa  iittaciied ;  tiiat  this  difference  in 
height  made  tbe  ase  of  the  engine  and  tender  dangerous ;  and  that 
the  engineer  in  charge  of  the  locomotive  notified  tlie  master- 
mechanic  of  that  fact.  The  engineer  testified  tiiat  the  difference 
in  height  caused  an  inch  of  tost  motion,  and  Elijah  T.  Belian, 
master-mechanic  of  the  Michigan  Central  Railroad,  who  had  for 
twenty-two  yeara  been  acquainted  with  tbe  construction,  use,  and 
repairs  of  locomotives  and  attachments,  testitied  that  "the  greatest 
amount  of  lost  motion  permissible  is  half  .in  inch."  Other  witnesses 
testify  that  the  lost  motion  caused  by  the  attachment  of  the  tender 
of  engine  No.  9  to  engine  No.  5  cansed  a  much  greater  degree  of  lost 
motion,  and  rendered  the  use  of  the  engine  and  tender  dangerous 
because  of  tbe  liability  of  the  tender  to  become  detached  from  the 
engine,  Tiie  appellant's  intestate  was  killed  by  the  parting  of  the 
engine  and  tender,  while  engaged  in  slioveling  coal  into  the  fire- 
box of  engine  No.  5.  "  The  engine,"  as  the  engineer  says,  "  in  an 
instant,  without  any  warning,  broke  away  from  the  tender  and  the 
rest  of  the  train,  and  ran  about  200  feet,  and  the  tender  and  Eoma 
of  the  cars  ran  over  tbe  decedent. 


^dbvGoO^lc 


830  KBUEOBE  V.  LOUISVILLB^  HBW  ALBANY,  ETC.,  R.  CO. 

It  is  the  duty  of  the  master  to  nee  ordinary  csre  and  diligence 
KumfsDCTT  ^  provide  eafe  working-places  and  safe  machinerj  and 
■'Tum^^n^  appliances  for  those  in  his  service.  A  neglect  of  this 
**"■  duty  is  an  actionable  wrong.     Bradbury  v.  Goodwin,. 

108  Iiid.  256;  Pittsburgh,  C.  &  St.  L.  K.  Co.  v.  Adams,  105  Ind. 
151 ;  B.  c,  23  Am.  &  Eiig.  R.  E.  Caa.  408 ;  Baltimore,  O.  &  C. 
R  Co.  V.  Rowan,  104  Ind.  88 ;  s.  c.,  23  Am.  &  Eng.  E.  R.  Cas. 
390 ;  Indiana  Car  Co.  v.  Parker,  100  Ind.  181,  187,  and  authorities 
cited. 

This  duty  rests  on  the  master,  and  he  cannot  absolve  himself 
from  liability  by  delegiiting  it  to  an  agent.  "Where  the  dnty  is 
one  owing  by  the  master,  and  he  entrnsts  its  perfoimance  to  an 
agent,  the  agent's  negligence  is  tbnt  of  the  master."  Indiana  Car 
Co.  V.  Parker,  swpra. 

The  negligence  of  a  fellow-servant,  or  coemployee  acting  as  snch, 
will  not  authorize  a  racovery  in  any  case,  althongh  the 
S**™""™  fellow-servant  or  coemployee  may  he  a  superior  officer^ 
■jS^d^'dd^  8"  agent,  or  a  foreman ;  mit  if  tbe  snperior  agent  is 
li^JiiJ^'*'™"  charged  with  the  performance  of  the  master's  duty, 
then,  in  so  far  as  that  duty  is  concerned,  his  acts  and 
his  negligence  are  the  acta  and  the  negligence  of  the  master,  and 
not  simply  those  of  a  coemployee  or  feTlow-servant.  Capper  v. 
Lonisviile,  E.  &  St.  L.  R.  Co.  103  Ind.  305 ;  s.  c,  21  Am.  &  Eng. 
R.  R.  Cas.  525;  Atlas  Engine  Works  v.  Randall,  100  Ind.  293; 
Indiana  Car  Co.  v.  Parker,  avpra;  Ohio  &  M.  R,  Co.  «,  Collarn, 
73  Ind.  261-273;  B.  o.,  5  Am.  &,  Eng.  R.  R.  CaB.  554;  Mitehell  v. 
Robinson.  80  Ind.  281 ;  e.  c,  41  Am.  Rep.  312;  Hougli  v.  Texas 
&  P.  R.  Co.  100  U.  S.  219;  Mullan  v.  PLiladelpliia  &'S.  M.  S.  S. 
Co.,  78  Pa.  25 ;  s.  c,  21  Am.  Rep.  2  ;  Gunter  v.  Graniteville  Mfg. 
Co.,  18  S.  C.  262 ;  s.  c,  44  Am.  Rep.  573 ;  Crispin  v.  Babbitt,  81 
N.  Y.  516 ;  6.  c,  97  Am.  Rep.  523 ;  Flike  v.  Boston  &  A.  R.  Co.,  53 
N.  T.  649 ;  Corcoran  v.  Holbrook,  59  N.  Y.  517;  MoCosker  v. 
Long  Island  R.  Co.,  84  N.  Y.  77;  s.  c,  5  Am.  &  Eng;.  R.  R.  Cas. 
664;  Brothers  V.  Carter,  52  Mo.  372;  Tierney  v.  Minneapolis  & 
St.  L.  R.  Co.,  33  Minn.  311 ;  s.  c.,  21  Am.  &  Eng.  R.  R.  Cas.  545  ; 
B.  c,  53  Am.  Rep.  35 ;  Towns  v.  Vicksburg,  S.  &  P.  R.  Co.,  37 
La.  Ann.  630 ;  s.  c,  55  Am.  Rep.  508. 

The  supreme  court  of  Massaciin  setts  was  one  of  the  first  of  the 
American  conrts  to  declare  the  rule  that  a  mafter  is  not  liable  to  a 
servant  for  any  injury  caused  by  the  negligence  of  a  fellow-servant, 
and  by  no  other  court  lins  the  rule  been  more  rigidly  enforced; 
yet  that  court  very  fully  approves  tlie  i-ule  asserted  by  the  antlior- 
Jties  to  which  we  have  inferred.  In  Ford  v,  Fitchburg  R,  Co. 
110  Mass.  240 ;  e.  c,  14  Am.  Rep.  598,  it  was  said  :  "  The  agents 
who  are  charged  with  the  duty  of  supplying  safe  machinery  are 
not,  in  the  true  sense  of  the  rnle  relied  on,  to  be  regarded  as  fellow- 
servants  of  those  engaged  in  operating  it.     They  are  charged  with 


^dbvGoO^lc 


FBLLOW-SBEVANT— TBAIN-DIBPATOHBE.  331 

the  master'B  duty  to  Im  servant.  They  are  employed  in  distinct 
and  independent  departments  of  aervice,  and  thei'e  is  do  di£Bcnlty 
in  diBtingnieliing  tliein,  even  when  the  aame  person  by  turns  ren- 
der service  in  each,  as  the  convenience  of  the  master  may  rcqnire." 

Theinstrnctione  given  in  tliia  caseaBsert  in  most  positive  terms  a 
doctrine  directly  contrary  to  that  declared  by  tlie  cases  to  which 
we  liave  referred,  for  those  instfnctions  assert  tliat  the  company  ia 
not  liable  for  the  negligence  of  any  of  its  officers,  except  its  hoard 
of  directors,  and  assert  also  that,  no  matter  what  the  I'ank,  position^ 
or  duties  of  otlier  odicei's  or  agents  of  the  company,  it  would  not 
be  liable  for  their  negligence. 

We  are  without  a  brief  from  the  appellee,  and  do  not  know  what 
position  its  counsel  assumed  in  the  court  below;  but  we  are  clear 
that,  in  tlie  respect  indicated,  the  canse  was  snbmitted  to  the  jury 
npon  an  ononeons  theory,  and  for  that  reason  we  reverse  the  judg- 
ment, confining  our  decision  to  the  one  point,  declaring  that  to  be 
the  point  in  judgment. 

Judgment  revei-sed. 

AMtar-machanlc  and  Englnaar  Held  Fellow  larvanti. — Bee  note  to  Lonia- 
vflle  &  N.  R.  Co.  e  Brice,  3ij  Am.  &  Eng.  R.  R.  Cas.  SSI. 

Criterion  of  Fellow  Servloe. — See  note  bv  Oeo.  W.  Eaaiej,  35  Am.  &  Eng. 
B.  &  Caa.  618. 


Wabash,  St.  Louis  and  Pacifio  B.  Oa 
{Advanet  Oata,  Minovri.    Martk  31, 1887.) 

An  em^lujee  of  a  railroad  train  subordinate  .to  a  Imud  diapatcher  and  anb- 
ject  to  Ilia  orders,  was  injured  in  an  accident  caused  by  toe  negligence  of 
such  train  dispatcher.  The  employee  acted  in  an  emergency  upon  the  verbal 
order  of  the  train  dispatcher,  although  &  rule  of  the  road  required  that  the 
specific  order  should  be  in  writing.    Held: 

1.  That  the  train  dispatcher,  in  ordering  the  movements  of  traies,  is  to  be 
■  legarded  as  the  representative  of  the  company;  and  when  he  gives  orders 
verbally  to  meet  an  emergency,  IL  la  the  company  speaking. 

3.  That  it  wai  not  negligence  upon  the  part  of  the  employee  to  act  upon 
the  verbal  order  of  the  train  dispatcher. 

It  is  the  duty  of  the  court  to  construe  the  rules  and  regulationa  adopted 
by  ft  railroad  company  far  the  direction  and  management  of  its  trains,  and  it 
if  error  Co  leave  their  construction  to  the  jury;  but  where  the  rules  admit  of 
but  one  construction  as  to  the  fact  that  the  train  dispatcher  had  control  of 
the  movement  of  trains  and  engines,  it  was  error  without  injury  to  the  de- 
fendanL 


^d  by  Google 


332      BSriTH  V.   WABASU,  ST.  LOUIS  AND  PACIFIC  E.  00. 

Appeal  from  circnit  conrt,  Liviiig8t{>ti  coont;. 
X.  ff.  Waters  for  plaintiff  and  respondent. 
W.  H.  Blodg^  for  appellant. 

NoBToN,  C.  J. — This  IB  an  actiou  to  recover  damages  for  the 
killing  of  plaintiff's  liusband,  alles^cd  to  liave  been  occasioned  bj 
tlie  negligence  of  defendant,  in  wliicli  she  i-ecovei-ed  jndgment  for 
rAon.  $5000,  from  wliicli  the  defeiidant  lias  appealed,  and, 

among  othere,  aBSJErns  as  error  the  action  of  the  court  in  refusing 
to  instmct  that,  nnder  the  pleadings  and  evidence,  plaintiff  was 
uot  entitled  to  recover.  A  proper  disposition  of  this  qticstioti 
necessitates  a  review  of  the  evidence,  which  shows  that  freight 
train  No.  84  an-ived  from  the  west  on  the  morning  of  the  lifteciitl) 
December.  1881,  at  Stanberry,  a  station  on  (he  line  of  defendant's 
road,  and  the  end  of  a  division  of  said  rond  extending  from  Stan- 
berry  to  Omaha;  that  npon  its  arrival  it  ^as  discovei'ed  that  the 
caboose  belonging  to  it  had  become  detached,  and  was  left^ standing 
on  the  track  fonr  or  five  miles  west  of  Stanberrv;  tiiat  at  the  time 
«f  the  arrival  of  train  84  another  freight  train,  No.  85,  with  engine 
No.  112  attached  to  it,  was  standing  on  the  track  ah'eady  made 
lip,  and  readyto  start,  going  west.  The  oondnctor  of  this  train/ 
James  F.  McCarty,  testified  that  his  engine  was  No.  112;  that 
Mike  Uahn  was  his  engineer,  and  deceased  hia  fireman  ;  that  his 
train  was  to  go  out ;  that  he  was  standing  by  the  train  dispatcher's 
window  when  train  84  came  in,  and  Lnke  Ferriter,  train  dispatcher, 
said  to  me:  ''  Jim,  you  will  have  to  take  your  engine  and  go  after 
that  caboose,  I  guess,  as  it  will  save  time;"  that  he  asked  Ferriter 
about  ordera,  and  Ferriter  said  he  couldn't  give  him  ordei's,  as 
there  was  no  operator  at  Conception  ;  that  there  was  nothing  com- 
ing east  behiiia  84,  and  that  he  wonld  be  perfectly  safe  in  going. 
Witness  then  said  :  "I  told  him  I  would  go  down  and  see  Mike> 
that,  if  Mike  would  go,  I  would  go  after  the  caboose.  I  went 
down  there,  and  saw  Mike,  and  we  concluded  to  go  after  the  ca- 
boose, and  WG  started  off  after  it  promptly,  without  going  back  to 
the  dispatclier's  office;"  that  they  found  the  caboose  between  thi-ee 
or  fonr  miles  west  of  Stanberry,  coupled  on  to  it  and  started  back, 
and  had  gone  perh.aps  a  mile  when  they  collided  with  the  switch 
enorine. 

Mr,  Bondurvant,  who  at  ttie  time  of  the  accident  was  yard- 
tnaster  at  Stanberry,  testified  as  follows:  That  train  85  was  made 
up,  and  on  the  tr.ick  I'endy  to  go  west,  when  train  84  whistled  for 
Stanberry;  that,  when  84  arrived,  he  discovered  there  was  no  ca- 
boose o[i  tlie  train;  that,  as  the  yard  was  blocked,  lie  told  the 
engineer  of  train  84  to  go  to  the  ronnd-honse,  and  that  he  wonld 
go  after  the  caboose,  tlie  engineer  having  said  he  did  not  think  it 
was  a  gi'eat  way  back;  that  lie  went  np  to  see  the  train  dispatcher, 
Ur.  Ferritei-,  and  the  latter  asked  him  if  No.  85  had  gone,  and  Le 


^d  by  Google 


FELLOW-SERVANT — TRAIN-DISPATCHEB.  S33 

answered  *'No;"  that  tlie;  conld  not  go  till  Bams  an-ired;  be  had 
cliarge  of  the  train  that  came  in  without  the  caboose.  He  tlieo 
said  to  him :  "  Feiriter,  Iiadn't  we  better  go  np  and  get  the  caboose, 
as  it  was  lost  np  the  road  two  or  tliree  miles  V  that  Ferriter  asked 
bim  if  112  )iad  gone,  and  he  iLiiewered  "Ko;"  that  he  did  ask  him 
if  they  had  gone  aftet  tlie  caboose,  and  he  understood  him  to  have 
reference  to  112  with  train  85 ;  tliat  Feniter  tlien  told  hini  lie  bad 
better  go  and  ^et  the  cabouse  with  the  switch-engine.  He  then 
asked  Ferriter  if  he  would  need  ordei-s,  and  he  said,  "  No,"  it  was- 
not  necessary  to  hiive  any ;  that  he  would  protect  him  while  he 
was  gone,  and  wonld  let  notliing  out  till  he  got  back.  He  then 
went  down,  got  on  the  switch-engine,  and  started  with  three  men 
on  the  engine  besides  himself.  They  met  112  about  five  miles 
west  of  Stanberry,  backing  up  with  tiie  caboose.  The  two  engines 
collided,  and  plaintiffs  husband  was  killed.  That  he  did  not  notice 
what  engine  was  standing  in  tho  yard  wiien  he  left. 

It  was  argued  that  the  rnles  and  regulations  for  the  movement 
of  trains  and  engines  in  force  at  the  time  of  the  accident,  and 

trinted  on  time-table  49,  were  known  and  understood  by  the  con- 
uctor  and  engineer  in  charge  of  engine  112,  by  the  yard-master 
in  charge  of  the  switch-engine,  and  by  tlie  train  dispatcher.  Plain- 
tiff also  put  in  evidence  the  following  rnles,  printed  on  said  time- 
table 49 : 

"Bule  62.  The  siiperintendcnt  and  appointed  train  dispatchers 
are  the  only  pdrsons  authorized  to  move  trains  by  telegraph. 

"  Rule  63.  No  wood,  constnietion,  or  extra  train  or  engine  mnst 
be  ran  npon  tlie  road  witJiont  written  oi-ders  or  instrtictions  from 
pereons  authorized  to  move  trains. 

"Rule  64.  All  telegrnpliic  orders  for  the  movement  of  trains 
will  be  addressed  to  conductors  and  engineere.  Tlie  operator  i^e- 
ceiving  such  nn  order  will  read  it  aloud  to  the  conductor  and  en- 

fineer,  and  receive  their  understanding  in  writing;  will  repeat  it 
ack  to  tlie  dispatcher  precisely  as  sent.  If  carrectly  repeated,  tlie- 
dispatcher  will  return  tlie  signal  'O.  K.'  which  must  be  acknowl- 
edged by  the  operator  by  a  like  signal,  followed  by  liis  initial  and 
ofiSce  call.  Tho  operator  will  indorse  the  dispatcher's  O.  K.  on  the 
order,  and  deliver  it  to  the  conductor  and  engineer  to  whom  it  is 
addressed.  In  no  case  will  an  operator  i-epeat  an  order  until  he 
has  first  obtained  in  writing  the  nndei'Standing  and  signature  of 
both  conductor  and  engineer. 

."  Rale  65.  Should  the  line  from  any  cause  fail  to  work  before 
the  party  has  received  the  O.  K.,  he  will  not  deliversuch  order." 

Defendant,  on  hie  behalf,  put  in  evidence  the  following  rules 
printed  on  time-table  49,  and  not  offered  by  plaintiff: 

"  Rnle  13.  Always  take  tho  safe  side  in  cases  of  the  least  nn- 
eertainty. 

"Bale  14.  Traioa  are  to  be  run  under  tbe  dii-ection  of  the  cou- 


^dbvGoo^lc 


334       SUITH  V.  WABASH,  ST.  LOUIS  AHD  PAOIFIO  B.  00. 

dnctor,  except  when  his  directions  conflict  with  rules,  or  involve 
any  risk  or  Imzard,  in  either  of  wliicli  cases  all  participators  will 
be  held  ulilie  acconntuble." 

"Culo  66.  The  greutest  care  and  watchfulness  must  becxercised 
in  sending  and  receiving  orders  in  regard  to  .running  trains.  Oper- 
ators will  not  trust  the  delivering  of  train  orders  to  other  parties, 
bnt  will  deliver  them  in  peison." 

"  Biile  68.  All  ordci's  and  messages  relating  to  the  movement  of 
trains  must  be  written  in  full,  and  no  abbreviation  nsed  except  the 
telegraph  signals  '  9 '  (repeat  back)  and  '  13 '  (I  anderetand  that  1 
am  to -)■" 

The  defendant  also  introduced  as  witnesses  on  its  behalf  J.  W. 
Blancliard,  formerly  superintendent  of  the  Council  Bluffs  and 
Omaha  division  of  defendant's  road  ;  W.  J.  Durbin,  train-master, 
and  for  many  years  a  train  dispatcher  for  defendant;  Mr.  Be^T;B,  a 
conductor,  and  Mr.  McConnell,  a  locomotive  engineer,  botn  of 
whom  were  in  defendiint'e  employ  at  the  time  of  and  before  the 
accident.  The  evidence  of  these  witnesses  tended  to  show  that, 
under  the  rules  as  they  were  nndeistood  and  acted  on  by  the  em- 
ployees on  that  division,  an  engine  sent  out  on  the  line  beyond  the 
Ewitcli  limits  of  a  station  after  a  caboose  would  be  an  extra  en- 
^ne,  and  only  authorized  to  go  on  a  written  older;  that  the  run- 
ning of  irregular  or  extra  tianisorengines  was  done  only  on  written 
orders  issned  by  tlie  train  dispatcher;  that  time-table  49  was  pre- 
pared by  Thomas  McKinock,  general  superintendent  of  defendant's 
road,  and  issued  to  the  division  su  pern  i  ten  dents,  and  distributed  by 
them  to  the  employees  on  their  respective  divisions ;  that  the  en- 
gines in  question,  in  tlieir  movement  after  said  caboose,  were  "ex- 
tra engines,"  and  that  under  the  rules  it  i-equired  that  oixlers  for  the 
movement  of  said  engines  should  be  in  writing;  tliiit  the  observance 
of  said  rule  would  tend  to  ui-eventcollifiions,  and  its  non-observance 
would  be  likely  to  result  in  collision ;  that  it  was  the  duty  of  the 
employees  in  charge  of  the  engines  in  question  to  refuse  to  go  out 
npon  the  road  without  oi'ders  in  wnting,  and  that  the  train  dis- 
patcher had  no  autliority  to  direct  thcin  to  go  except  by  order  in 
writing,  and,  signing  the  name  or  initials  of  the  division  superin- 
tendent thereto ;  thnt,  upon  receiving  the  order  in  writing  (if  one 
had  been  given  in  this  case),  it  would  have  been  the  duty  of  tlie 
persons  in  charge  of  engine  112  to  have  gone  to  the  regietry  book 
at  Staiiherry,  and  registered  his  engine  out,  and  when  lie  returned 
to  register  it  in  ;  that  the  train  dispatcher  issues  his  orders  in  three 
copies  on  manifold  paper,  one  of  which  is  delivered  to  the  conduc- 
tor, one  to  the  engineer,  and  one  he  retains,  and  the  order  is 
recorded  in  a  book ;  tlmt  liad  the  train  dispatcher  given  a  written 
order  to  the  engineer  and  conductor  of  engine  112,  when  the 
Y;ird-mii9ter  asked  for  orders  to  go  with  tlie  switch  engine,  the 
.'train  dispatcher  would  not  have  given  him  all  order  until  the  order 


^dbvGoo^lc 


PELLOW-SEKVANT — TRAIN-DISPATCHER.  336 

to  the  eoeiiieer  and  condoctor  of  engine  112  had  been  eancelled  ; 
bnt  that,  Lad  he  made  a  mlBtakeand  done  bo,  the  yard-master,  when 
he  came  to  register  ont  the  Bwitch-engice,  wonld  have  discovered 
that  engine  112  was  ont  on  the  road,  &iid  conld  not  have  gone 
until  that  engine  was  registered  in  ;  that  the  accident  in  question 
resnlted  from  the  non-obserraiice  of  the  rules;  and  that  had  the 
rules,  as  they  were  understood  and  acted  apoa  by  all  the  employees 
on  that  division,  been  observed,  the  accident  conld  not  have  oc- 
curred. 

On  cross-examination,  Mr,  Blanchard,  division  superintendent, 
testified  that  Ferriter,  the  train  dispatcher,  had  power  under  the 
rnles  tocontrol  the  movement  of  trains  and  engines;  and  tliat, 
while  he  (Blanchard)  liad  the  name  authority  to  move  trains  that 
the  dispatcher  had,  he  never  assumed  that  authority,  bnt  loaded  it 
onto  the  train  dispatcher,  and  tliat  the  latter  exei-cised  the  entire 
anthoiity;  that  the  engineer  of  engine  112,  attached  to  freight  train 
84,  conld  and  shonld  have  gone  back,  without  any  orders,  for  the 
caboose,  if  it  conld  have  gotten  out  of  the  yards,  even  if  the  caboose 
had  been  left  as  far  back  as  20  miles.  On  cross-exam  inatfon,  Kr. 
Durbin  testified  that  when  tlie  yard-master  fonnd  that  the  caboose 
had  been  left  back  on  the  road,  and  that  engine  112  conld  not  get 
ont  to  go  after  it,  it  was  his  dnty  to  inform  the  train  dispatcher  of 
the  fact,  and  to  ask  for  orders  to  go  after  it  witli  the  Switch-engine, 
and  that  it  was  the  dnty  of  the  train  dispatcher  to  give  the  orders ; 
that  the  train  dispatcher  should  Iiave  kept  the  switch-engine  from 
going  if  he  knew  the  first  engine  had  gone;  and  Blanchard  testi- 
Bed  that  the  train  dispatcher,  withont  much  effort,  could  have  ascer- 
tained whether  the  engine  had  gone.  The  train-master  further 
testified,  among  other  things,  that  the  first  fault  was  the  train  dis- 
patcher's in  giving  a  verbu  order,  and  the  other  fault  was  of  the 
engineer  in  obeying  it. 

It  is  insisted  by  counsel  that  the  facts  in  evidence,  -^hich  are 
substantially  as  above  set  forth,  show  that  the  death  of  plaintifTs 
hnsband  was  occasioned  by  the  negligence  of  his  fellow- 
servants,  and  that,  therefore,  the  court  erred  in  over-  S*TOTiSSwi 
rnling  the  demurrer  to  the  evidence.     If  the  train  dis-  SSSd.'™" 

fatcher,  yard-master,  engineer,  and  fireman  of  engine 
12,  were  fellow-servanta,  then  error  was  committed  by  the  conrt 
in  tlie  above  respect ;  but  if  the  train  dispatcher  was  not  a  fellow- 
servant,  bnt  the  representative  of  the  company  in  regard  to  the 
movement  of  trains  on  the  division  referred  to  in  the  evidence,  and 
bis  negligence  was  the  proximate  cause  of  tlie  injury,  the  demurrer 
was  properly  overruled.  It  clearly  appears  from  the  evidence  that 
the  train  dispatcher  at  Stan  berry  had  tlie  sole  and  exclusive  control 
in  directing  the  movement  of  ti-ains  on  the  division  of  defendant's 
road  extending  from  Stanberry  to  Omaha,  and  that  the  conductors 
and  engineers  were  subject  to  them  when  issued. 


^d  by  Google 


336        SMITH  V.  WABASn,  8T.  LOUIS  AND  PACIFIC  R.  CO. 

The  anthorities  bearing  npon  the  qneation  as  to  whetlier  or  not  a 
train  dispatclier,  invested  witli  euch  control,  is  afellow-eervant  with 
the  condactor  and  engineer  and  others  engaged  in  actually  oper^ 
ting  and  moving  ti-.tins,  are  conflicting  and  irreconcilable.  The 
rule  laid  down  in  Massachnaetts,  and  cobbb  cited  from  other  States, 
■where  it  is  held  that  all  who  are  engaged  in  a  common  eniploj- 
tnent,  working  to  nccomplish  a  commoD  resnlt,  witliont  regard  to 
rank,  are  to  be  regarded  as  fcllow-servunts,  anpportB  defendant's 
contention.  While  tliis  court  has  held  tJiat,  where  one  seivatit  is 
iiijared  by  the  negligence  of  a  fellow-aervant,  no  action  therefor 
can  be  maintained  against  the  master,  only  in  exceptional  cases 
(each  as,  when  the  servant  employed  was  incompetent,  which  waft 
either  known  or  might  with  oi-dinary  care  have  been  known  by  the 
tnastei'),  we  have  never  gone  so  far  as  to  adopt  a  rule  by  wliich  to 
determine  who  are  fellow-servants  so  broad  as  that  adopted  in 
HoEsachnsetts,  nor  are  we  disposed  to  do  so  now.  The  tendency 
of  recent  decisions  is  to  narrow  and  not  broaden  the  rnle,  notably 
BO  in  the  case  of  Bailroad  Co.  v.  Koss,  112  U.  8.  377,  s.  c.,  17  Am. 
&  Eng,  B.  R.  Cas.  501 ;  where  it  is  said  :  "  There  is  a  clear  dis- 
tinotion  to  be  made,  in  relation  to  tlieir  common  principal,  between 
tlie  servants  of  a  corporation  exercising  no  supervision  over  others 
engaged  with  them  in  the  same  employment,  and  agents  of  a  cor- 
poration  clothed  with  the  control  and  management  of  a  distinct  de- 
partment, in  which  their  duty  is  entirely  tliat  of  dii'cction  and 
enperintendenco.  In  Slieehan  v.  Railway  Co.,  91  !N.  Y.  332,  s,  e., 
12  Am.  &  Eng.  R.  R.  Cna.  235 ;  and  Railroad  Co.  v.  McCollen, 
84  III.  109,  the  superintendent  and  aEsistant  enperintendent,  acting 
as  train  dispatcliei-s,  were  held  to  be  vice-principals.  In  the  case 
last  cited  it  is  said  that,  as  between  the  conductor  and  company, 
tlie  assistant  superintendent,  to  whose  orders  tlie  trains  are  all  sub- 
ject, is  the  representative  of  the  corporation,  and  that  the  nile  &p~ 
plies  as  well  to  all  orders  issued  by  his  assistants  as  in  jiis  name." 

TliaC  a  train  dispiitcJier  is  to  be  regarded  as  the  representative  of 
the  company  is,  in  effect,  li eld  in  the  following  cases:  Booth  v. 
Railway  Co.,  73  W.  Y.  38  ;  Railway  Co.  v.  Henderson,  37  Ohio 
St.  552;  8.  c,  5  Am.  &  Eng.  R  R.  Caa.  529;  "Washbrn-n  v.  Rail- 
read  Co.,  3  Head,  638 ;  Darrigan  v.  Railroad  Co.,  24  Amer.  Law 
Reg.  453  ;  s.  c,  23  Am.  &  Eng.  R.  R.  Cas.  438.  In  the  case  last 
cited  it  is  said  :  "  It  is  immaterial  that  these  men  are  hired  and 
paid  by  a  common  employer,  and  that  theiremploynient  is  designed 
to  accomplish  one  common  resnlt.  That  argument,  if  pressed  to 
its  logical  conclusion,  would  obliterate  all  distinctions  among  tlioso 
engaged  in  railroad  business,  from  the  president  down  to  tlie 
bnmoleet  servant,  and  would  practically  exempt  the  company  from 
all  duty  and  all  liability  to  those  in  its  service."  It  ia  farther  said 
that  "  cases  are  constantly  arising,  especially  in  the  operatioD  of 
railroads,  which  no  general  rnle  can  provide  for,  in  which  the 


iiz^dbvCooglc 


PELLOW-SBBVAirr— TRAIN-DIBPATOHEE.  337 

DiiiBtcr  iiinst:  be  regarded  as  eonetantlj  present,  in  wliich  some  one 
tnnst  be  invested  with  a  discretion,  and  a  right  to  speak  and  com- 
mand in  liis  name  and  by  liis  autliority.  Such  a  right  carries  with 
it  tlie  cori'espondiiig  dtiCy  of  obedience  j  some  one  mnst  bear  and 
obey.  It  must  also  devise  some  suitable  and  safe  metliod  by  wliioh 
■to  run  special  and  irregular  trains,  and  regular  trains  wlien  off  their 
regular  time.  Emeigencies  will  arite  wliich  no  system  of  rules 
can  anticipate  and  provide  for,  in  whicli  the  company  must  act 

f>romptly  and  cfliGiently.  In  this  case  the  scheme  devised  was  to 
lave  these  trains  contmlled  by  one  who  knew  the  position  and 
movement  of  eveiy  train  on  the  j-oad  liable  to  be  affected  by  them, 
— a  train  dispatcher  acting  in  the  name  and  by  the  authority  of 
tile  superintendent.  Is  there  not  a  wide  difference  between  the 
duty  of  such  an  agent,  and  tiie  duty  of  a  locomotive  eneineert  The 
dnty  of  tiie  former  peitains  to  management  and  direction ;  that  o{ 
tlio  latter  to  obedience." 

What  is  hero  said  applies  to  the  facts  of  the  case  before  nB,vhich 
shows  that,  wiien  freight  ti-ain  8i  arrived  at  Stanberry  from  the 
west,  freiglit  train  85  stood  upon  the  track  ready  to  go  out  west,  the 
dii-ection  from  whicli  84  had  just  come,  bat  could  not  go  oot  be- 
cause 84  had  left  its  caboose  back  some  four  or  five  miles  on  the 
track  between  Stanberiy  and  Conception,  a  station  on  tlie  road. 
The  evidence  is  undisputed  that  the  engineer  of  tlie  engine  which 
pnlled  84  into  the  yard  had  the  ri^ht,  and  it  was  bis  duty,  to  take 
hie  engine,  and,  without  orders  eitlier  verbal  or  written,  to  go  back 
if  for  the  distance  of  20  miles,  and  bring  in  the  caboose  ;  bu^  owing 
to  the  crowded  condition  of  the  yard,  he  could  not  get  his  engine 
out,  and  he  was  ordered  by  the  yard-master  to  take  it  to  the  roand- 
house.  In  this  condition  of  things,  the  train  dispatclier  directed 
McCarty,  conductor,  to  take  engine  No.  112,  whicli  was  hitched  to 
freight  train  85,  and  bring  in  the  caboose;  saying  he  could  not 
give  liim  written  orders  because  there  was  no  operator  at  Concep- 
tion, but  that  lie  would  be  perfectly  safe  in  going,  as  thei-e  was  no 
train  coming  cast;  whereupon  he  was  informed  by  McCarty  that 
he  would  see  Iiis  engineer,  and  if  he  consented  they  wonld  eo.  He 
did  go,  and  from  tlie  very  fact  of  liis  not  returning  to  the  train 
dispatcher  that  officer  could  have  drawn  no  otlier  inference  than 
that  lie  had  gotie,  and  this  inference  could  have  been  reduced  to  a 
certainty  liad  he  looked  to  ascertain  the  fact  as  to-  whether  or  not 
lie  had  gone  ;  but  instead  of  this,  with  fnll  knowledge  of  the  fact 
that  McCat'ty  left  telling  him  that  he  would  go  ii  his  engineer 
wonld,  with  an  assurance  from  his  dispatcher  that  it  would  be  per- 
fectly safe  for  him  to  go,  be  directed  the  yard-master  to  take  hia 
switch-engine,  and  bring  in  t)ie  caboose,  promising  to  protect  him 
while  he  was  gone,  without  informing  him  that  he  had  previously 
directed  McCarty  to  go  with  engine  112,  and  witbont  taking  any 
«tepe  to  ascertain  wlietlier  he  hud  gone,  which  fact  Ije  coula  have 
81  A.  &  E.  R.  Caa.— 22 


^dbvGoo^lc 


338  SMITH  V.   WABASH,  ST.  LODIS  AND  PACIFIC  B.  CO. 

•Ecertained  by  takiMf;  a  few  steps  and  simply  looking;  and  it  was 
this  neeligctice  that  cost  the  iiremnn  on  engine  113  liis  life. 

Bnt  It  is  earnestly  insisted  that,  iiiasmucTi  as  rule  63  forbade  aa 

extra  engine   from  goin^  out  without  written  oi-dera, 

m^uacHT    o  McCarty  was  negligent  in  not   refaeing  to  go  withoot 

"""'"  '  If  the  train  dispatcher  was  the  representative 

raerf       "  .-  .     . 


of  the  company  in  oraering  tlie  movement  of  trains, 
as  we  bold  he  was,  then,  under  tho  emergency  and  condition  of 
ijiings  existing  when  he  determined  tliat  Tie  eonld  not  give  writ- 
ten orders,  it  was  the  determination  of  the  company ;  and  wlien 
he  gave  the  orders  verbally,  as  he  did,  to  meet  the  emergency,  it 
was  the  company  speaking.  If  the  engineer  who  pulled  train  S4 
into  Stanberry  had  informed  tlie  train  dispatcher  tliat  his  caboose 
had  been  left  behind,  and  that  he  could  not  get  out  of  the  yard 
with  his  engine  to  go  nfter  it,  and  had  procnred  the  nse  of  engine 
112,  attached  to  train  S5,  for  the  purpose  of  going,  and  had  gone 
after  it,  and  had  the  train  dispatcher  afterward  instructed  the 
yard-master  to  take  his  engine  and  go,  and  the  accident  occnrred 
aa  it  did,  conld  there  be  any  qaeetioD  as  to  the  liability  of  the 
con^ny  t     We  think  not, 

Vpon  the  point  nnder  diacnssion,  the  case  of  Moore  v.  Wabash, 
St.  t.  &  P.  K.  Co.,  85  Mo.  588;  s.  c.,  21  Am.  &  Eng.  R.  R. 
Cas.  609;  23  lb.  594,  has  a  direct  bearing.  In  that  case  it  appear- 
ed that  tho  company  had  established  a  rule  requiring  all  car  re- 
pairers, wlien  engaged  in  repairing  cars,  to  set  oat  red  flags  on 
each  side  of  the  place  where  tliey  were  at  work  as  signals  of 
warning  to  approaching  trains.  Kotwtthstanding  this  rule,  the 
foreman  of  ear  repaii-s  directed  the  plaintiff,  withont  any  flags 
being  set  oot  as  required  by  said  I'ule,  to  repair  the  draw-head  of 
of  a  car,  promising  to  protect  him  while  bo  engaged,  end  an  engine 
ran  against  the  car,  severely  injuring  him.  The  company  was 
held  liable,  on  the  ground  that  the  foreman  was  the  alter  ego  of 
the  company,  and  his  promise  of  protection  was  binding,  although 
the  rule  provided  to  secure  the  safety  of  the  men  had  not  been 
observed,  bat  dispensed  with. 

It  is  next  objected  that  the  court  en-ed  in  the  second  and  third 

instructions  given  for  plaintiff,  in  that  the  jiiirwere 
DuTT  OF  oouaT  told  that  if  they  found  from  the  evidence  thiiflerriter 
SSim™''SSS  was  train  dispatcher,  and,  under  the  rules  and  regnla- 
LiiTi  iojo»i.  tions  of  defendant,  he  Iiad  control  of  the  movement  of 

trains  and  extra  eu^^incs;  and,  if,  under  said  rnk-s  and 
regnlations,  he  had  control  of  the  two  engines  in  question  so  far 
as  running  them  on  tho  road  was  concerned;  and  if,  under  said 
rules  and  rM;alation8,  and  by  reason  of  them,  said  employees  were 
subject  to  the  orders  of  said  train  dispatcher  in  relation  to  running 
of  said  engines, — then  s.-)id  train  dispatclier  was  not  a  fellow-serv- 
ant of  the  engineer.     The   specilic  objection   made   to  these  in- 


^d  by  Google 


FELLOW-SEBVANT — TRAIN-DISPATCHEE.  339 

strnctioHB  ia  that  it  was  tlie  duty  of  tlie  conrt  to  construe  tlie 
mles  and  regulations  read  in  evidence,  and  that  it  was  error  to 
leave  the  construction  of  thcin  to  tiio  jnry:  Tliis  position  is 
Tell  taken,  and  error  was  coniiititted  in  the  respect  above  noted  ; 
bnt  the  eri'or  was  one  in  favor  of  defendant  and  against  the  plain- 
tiff, inasrnnch  as  the  rules  admitted  of  bnt  one  conBtrnction  as 
to  the  fact  that  tlie  train  dispatcher  had  control  of  the  move- 
ment of  trains  and  eriginos,  and  control  of  the  engines  in  ques- 
tion, as  to  running  them  on  the  road,  and  stibjecting  the  ecnploy- 
ees  to  his  orders  and  instructions;  and,  had  the  court  consiriud 
the  rules,  it  could  only  have  told  the  jury  that  under  them  thtj 
train  dispatcher  had  snch  control,  and  that  the  employees  wero 
Buhject  to  his  ordei's. 

It  is  also  insisted  that  the  court  erred  in  the  instrnction  given  in' 
relation  to  damages,  in  this:  that  the  jnry  were  told  that  they 
might  take  into  coneidei'ation  the  mitigating  and  ag- 
gravating cirenmstances,  without  pointing  ont  to  thetn  ixnncmoir  u 
what  ci  ran  instances  were  aggravating  and  what  miti-  MimiiniloSD 
gating.  While  it  is  held,  in  the  case  of  Bains  v.  Riiil-  ^u^w^n. 
road  Co.,  71  Mo.  169 ;  s.  c,  5  Am.  &  Eng.  R.  R.  Gas. 
610,  that  the  conrt  in  its  instruction  should  point  out  such  circum- 
stances, it  is  also  stiid  in  the  case  of  Nngel  v.  Kuilroad  Co.,  76  Mo. 
653;  s.  c,  10  Am.  &  Eng.  R.  R.  Caa.  702,  that  where  there  are 
no  mitigating  circumstances  the  dofend;nit  cannot  complain  of 
such  an  instruction  because  of  its  generality.  In  this  case  we  do 
not  perceive  a  single  mitigating  circumstance,  but,  on  the  contrary, 
the  grossest  negligence  of  the  train  dispatcher  in  sending  ont  the 
second  engine  nndcr  the  circnmstances  disclosed  by  the  evidence. 

It  is  atsQ  insisted  chat,  nnder  the  facts  fonnd,  plaintiff  was  only 
entitled  to  nominal  damages.  The  evidence  is  that  deceased  was 
the  head  of  a  family,  3d  years  of  age,  able  to  perform  the  duties 
of  fireman,  and  was  6o  engaged  when  killed,  and  was  always  at 
work.  These  facta  formed  a  basis  on  which  the  jnry  were  author- 
ized to  find  more  than  nominal  damages. 

As  to  the  claim  made  that  the  verdict  for  |5000  was  excessive, 
it  may  be  said  tliat  it  is  snflieiently  answered  by  the  action  of  plain- 
tiff in  entering  a  remittitur  in  this  court  for  the  snin  of  $1500. 

It  is  alleged  in  the  petition  that  the  train  dispatcher  gave  an 
order  which,  under  the  rules  and  i-egulations  of  the  company,  the 
men  were  bound  to  obey,  and  it  is  contended  that  this  allegation 
was  not  proved,  inasmuch  as  the  order  given  was  a  verbal  and  not 
a  written  order.  The  company,  through  its  train  dispatcher,  de- 
termined that  under  the  existing  circumstances  a  written  order 
conld  not  be  given,  and,  having  thus  determined,  gave  a  verbal 
order,  whicli,  emanating  from  the  company  through  its  represent^ 
tive,  the  train  dispatcher,  was  obligatory. 

Inasmnch  as  the  entry  of  a  remittitur  in  this  court  by  plaintiff 


^d  by  Google 


340  TENNESSEE  COAL  AND  IBON  E.  OO.  V.  EODDT. 

of  tlie  suRi  of  $1500  JB  to  that  extent  an  admission  that  tbe  point 
BMDTTmw.  made  by  defendant  that  the  judgment  for  $5000  is 
exceBsive,  is  well  taken,  on  tlie  authority  of  the  case  of  Miller  v. 
Hardin,  64  Mo.  544,  the  judgment  of  the  circuit  court  is  in  all 
respects  affirmed,  except  as  to  said  sum  of  $1500,  which  is  remit- 
ted and  to  be  deducted  from  the  Baid  sum  of  $5000;  and  plaintiff 
and  appellee  is  i-eqnii-ed  to  paj  all  costs  of  this  appeal,  which  ara 
adjudged  hj  tliis  conrt  against  her. 

All  concur,  except  Shebwood,  J.,  who  dissents. 

Train  Ditpateh«ratF0llow:Mrvant  with  TralnMan. — See DarHgan ». Neir 
York,  etc.,  R  Co.,  S8  Am.  &  £o|?.  B.  R  Cas.  488;  RobertaoD  e.  Terra  Haute, 
etc.,  R  Co.,  8  Am.  A  Eds.  R.  R  Cos.  175;  Chicago,  etc,  R  Co.  e.  Dojle^ 
81b.  171;  Bleuingo.  St.  Louia,  etc,  R  Co.,  IS  lb.  208. 


TBNSEsaBE!  Coal  and  Ibon  B.  Oo. 


(Advanet  0am,  TennaiM.     1867.) 

Tbe  eBtitnation  of  the  extent  of  tbe  injury,  and  the  asseBameDt  of  the  dam- 
Bgea  ia  actions  for  peraoeal  turts,  are  wuhin  the  strict  proTince  of  the  jury, 
and  the  trial  court  ought  not  to  interfere  nnd  gr«nt  a  new  trial  unless  there 
baa  been  a  manifeBt  ahuae  of  this  trust,  such  aa  to  iadicate  paaaion,  prejudice, 
partialitj,  or  unaccountable  caprice  or  corruption;  and  the  mere  fact  that 
the  trial  court  expressed  its  disapprovai  of  a  verdict  as  being  eicesaive,  jet 
refused  to  set  it  aside,  is  no  rcosoa  whj  the  supreme  court  ought  to  grant  a 
sen  trial. 

A  verdict  of  |8000  against  a  railroad  company  for  negli|;ently  causing  the 
death  of  a  young  and  healthj  engineer,  whose  expectation  of  life  was  31 
years,  is  not  excessive  to  a  point  indicatiog  either  partiality,  passion,  preju- 
dice, caprice,  or  corruptioa. 

Appeal  from  circuit  court,  Franklin  oonnty ;  Hon.  J.  J.  "Wil- 
liams, jndge^ 

Colyar,  Marks  <&  Childress  for  the  railroad. 

J.  H.  Holman  and  Gregory  c6  Emhrey  for  Eoddy, 

LoRTON,  J. — The  intestate  of  the  defendant  in  error,  James  K. 
Le^  was  a  locomotive  engineer  in  the  service  of  the  pInintiS  in 
error,  and  while  tinis  in  their  service  was  killed  by  and  tlirongh 
the  negligence  of  his  employer.  Suit  was  instituted  by  his  ad- 
ministrator  to  recover  damages.    There  have  been  thi-ee  rum, 

trials  of  the  cause.     Tliere  was-a  verdict  for  $6,400  as  a  resnlt  of  the 
first  trial.    The  record  shows  that  the  circait  judge,  deeming  tb& 


^d  by  Google 


HASTES  AND  SBBVANT — DEATH — £2:0£SSIV£  DAUAOES.    341 

verdict  exceB&ive,  rnled,  upon  tlie  motion  for  a  new  triiil,  tlint  a 
new  trial  elionld  be  granted  unless  the  plaintiff  below  wonld  remit 
43100  of  hie  verdict.  Tliis  the  plaintiff  declined  to  do  mid  a  new 
trial  wag  granted.  Tiic  Becoild  triid  resnlted  in  a  Imr.g  jnry.  Tlio 
third  and  last  trial,  and  the  one  now  under  consideration,  resnlted 
in  a  vcrxlict  for  $8,000.  From  the  jnilgment  on  this  verdict  the 
plaintiff  in  error  has  appealed.  The  cuinmiBsiuii  of  referees,  hav- 
ing hciU'd  the  case,  reconiinend  a  revei-eal,  in  an  able  and  carefully- 
pi-epai-ed  report,  wherein  they  place  tlieir  recommendation  ex- 
pressly npon  the  ground  that  the  judgment  entry,  overruling  the 
motion  for  a  new  trial,  shows  that  the  circuit  judge  was  of  opin- 
ion that  tiie  verdict  was  excessive  under  the  facts  of  the  case,  yet 
had  refused  to  grant  a  new  trial.  Tlie  entry  refusing  a  new  trial 
was  as  follows:  "  The  motion  for  a  new  trial  liaving  been  heard, 
the  court  declines  to  set  aside  the  verdict,  hut  does  not  approve 
the  same.  The  conrt,  at  a  former  term,  set  aside  a  verdict  for  a 
smaller  amount  because  it  was  excessive  for  tlie  facts  of  the  case, 
and  tlie  court  now  is  of  opinion  that,  if  any  recovery  at  all  was 
proper,  the  verdict  is  excessivcj  but  to  terminate  the  litigation  hi 
tliis  case,  the  verdict  is  sustained,  tliat  the  supreme  court  may  puss 
on  these  facts,  this  court  havhig  tried  the  case  for  the  third  time." 
Taking  into  consideration  all  the  parts  of  this  entry,  and  partic- 
ularly the  recital  that  he  Iiad  once  before  granted  a  new  trial,  not 
because  it  was  against  the  weiglit  of  the  proof  or  contrary  to  law, 
but  expressly  upon  the  eround  that  he  thought  the  „ 
verdict  excessive,  we  are  of  oi)niion  tliat  tlie  disap-  codbt  ^  to 
proval  of  the  verdict  expressed  by  the  judge  is  based,  rarasion  of" 
not  upon  any  dissatisfaction  willi  a  verdict  for  the  '"*'™^^"- 
plaintiff  below,  but  a  disapproval  of  the  amount  of  the  damages. 
He  thought  it  excessive  npon  the  facts,  but  evidently  did  not  think 
it  so  excessive  as  to  indicate  passion  or  prejudice,  and  make  it  iiis 
duty  to  set  it  aside.  On  the  conti'ary,  he  expressed  a  desire  that 
the  parties  should  submit  the  case,  upon  the  verdict,  to  the  supreme 
court.  If  he  was  not  satisfied  tliat  under  the  facts  and  law,  the 
plaintiff  should  have  a  verdict,  it  was  his  plain  duty  to  set  it  aside 
and  grant  a  new  trial.  The  doctrine  is  well  settled  in  this  State 
that  if  the  circuit  judge  is  of  opinion  that  a  veidict  is  against  the 
weight  of  the  evidence,  or  is  contrary  to  the  law  as  charged  by 
himself,  he  eIiouM  grant  a  new  trial.  The  rule  of  this  court,  that 
it  will  not  dtetiirb  the  verdict  of  a  jury  upon  facts  fairly  submitted 
to  them  upon  a  correct  charge,  unless  there  is  a  great  preponder- 
ance of  evidence  against  the  verdict,  is  based  very  largely  upon 
the  fact  that  a  different  rule  governs  the  circuit  judge  in  consider- 
ing motions  for  new  trials.  The  court  attaches  great  weight  to 
the  fact  that  the  circuit  judge,  having  seen  and  heard  the  witnesses 
testify,  and  having  submitted  the  case  to  a.  jury  known  to  him^lf, 
has  stamped  the  verdict  with  his  approval  by  i-efnsing  to  grant  a 


^d  by  Google 


343  TKMNE33KE   COAL   AND   IRON   B.    00.   V.    EODDT. 

new  trial.  Miicli  of  the  importance  and  weight  attached  to  jniy 
trials  proceeds  from  tlie  pi-eenmption  that  an  intelligent  and 
learned  circuit  judge,  .iccuBtomed  to  weighing  evidence,  lias  scra- 
tinized  the  proof,  looked  into  the  faces  of  the  witnessee,  and  eo- 
doreed  the  action  of  the  jnry.  The  integrity  and  vaJne  of  jury 
trial  will  largely  disappear^  if  circnit  jtidges  shall  endeavor  to  avoid 
the  duty  imposed  npon  tliem  by  law  in  this  regai-d.  If  he  is  dis- 
satisfied with  the  verdict,  he  ought  to  set  it  aside ;  and  this  conrt 
has  held  that,  where  this  dissatisfaction  appears  in  the  record,  tln'ft 
conrt  will  do  what  he  ought  to  have  done, — grant  a  new  triaL 
England  v.  Burt,  4  Humpli.  399;  Jones  v.  Jennings,  10  Humpli. 
428 ;  Nailing  v.  Nailing,  2  Sneed,  631 ;  Vaulx  v.  Herman,  8  I^ 
687. 

It  is  insisted  that  this  mie  applies  to  this  case.  This  would  b& 
BO  if  the  dissatisfaction  of  the  circnit  Judge  clearly  appeared  to  be- 
due  to  any  finding  for  the  plaintiff  below.  Bnt  we  have  construed 
and  do  constrne  the  entry  refusing  a  new  trial  in  this  case,  not  aa 
indicating  the  disapproval  of  any  verdict  for  the  plaintiff.     We 

construe  the  entry  as  simply  indicating  the  belief  of  the- 
FiCTTHirTBUL  clrcuit  judge  that  the  damages  were  excessive,  yet  not 
luaxonucEB-  SO  excessive  as  to  require  him  to  set  aside  the  verdict, 
roBHiwTuu.  It   is  insisted,  however,  that  the  disapproval   of  the 

amount  of  the  verdict  is  in  itself  enough  to  liave  made 
it  the  duty  of  the  circuit  judge  to  have  granted  a  new  trial,  and 
that,  nnder  the  doctrine  of  chc  cases  of  England  v.  Burt,  4  Hnmph. 
899,  and  Yanix  v.  Herman,  8  Lea,  687,  the  dissatisfaction  of  the 
trial  judge,  with  the  verdict  appearing,  this  conrt  ouglit  to  grant  a 
Dew  trial.  This  brhigs  ns  to  a  consideration  of  the  question  as  to- 
whether  the  fact  that  the  trial  judge  deems  ths  damages  assessed 
by  a  jury  in  a  civil  action  for  a  pei'sonal  tort  to  be  excessive,  i» 
ground  for  a  new  trial.  In  actions  ex  contractu,  even  if  sounding 
lu  damages,  the  proof  affords  some  definite  and  fixed  rule  and 
standard  by  which  tlie  judgment  of  the  jury  may  be  tested.  An 
excessive  verdict,  in  all  sncTi  cases,  is  ground  for  new  trial.  So,  as- 
hefore  stated,  in  any  class  of  cases,  if  the  verdict  is  contraiy  to  th& 
law,  or  to  tlio  weight  of  the  evidence,  it  is  ground  for  new  trial  in 
nisi  prius  trials.  But,  in  action  for  personal  torts,  sounding  in 
damages,  we  understand  the  rule  concerning  new  trials  for  mere 
excessive  ,  damages  to  be  very  different.  At  one  time  it  was 
doubted  whether,  in  cases  of  mere  personal  torts,  the  court  had 
the  power  to  interfere  on  the  ground  of  excessive  damages,  or  th& 
contrary.  '!  Bnt  the  practice  has  long  been  settled  conceding  to- 
the  court  the  right  to  control  verdicts  in  relation  to  damages,  as 
well  as  every  other  incident  in  all  cases  without  exception;  with 
this  difference,  however,  that  on  qnestions  of  contract,  or  when  ai» 
ascertained  test  of  tlie  correct  amount  is  furnished,  tlie  conK  inter- 
poses the  correction  with  less  reluctance  than  in  cases  of  mere  in- 


^d  by  Google 


VASTER  AND   SEBVANT — DEATH — EXOESSIVB  DAHAGES.    343 

jnry,  when  tlie  damage  is  at  large,  and  the  finding  on  tbat  point 
niDSt  be  arbitrary."     1  Grab.  &  W.  New  Trials,  aide  p.  410. 

Tlie  distinction  between  tlie  rules  governing  new  trials  in  the 
two  classes  of  cases  lias  long  been  recognized  at  the  common  law. 
•Jastice  Bdi^kb  npon  the  question  said  :  "  In  actions  founded  upon 
torts,  the  jnry  are  the  sole  judges  of  the  damages ;  and  therefore, 
in  BDch  cases,  the  court  \Yill  not  grant  a  new  trial  on  account  of  the 
damages  being  triSing  or  excessive.  Bnt  in  actions  founded  npon 
contract,  and  where  debt  would  lie,  the  court  will  inquire  into  the 
ci  renin  stances  of  the  cases,  and  relieve  if  they  see  reason." 

In  the  case  of  Duberly  v.  Gunning,  4  Term  E.  661,  there  was  a 
verdict  for  the'  plaintiff  of  ;jr50OO  damages,  the  action  being  one 
by  tlie  husband  for  the  seduction  of  his  wife.  Upon  a  Bun-AuiBou. 
motion  for  a  new  trial,  upon  the  ground  of  the  exces-  "^ 
sivcncEs  of  the  damages,  Lord  I^nyon,  C.  J.,  said:  "Under  all 
the  circumstances,  I  tliink  the  diimages  were  mnch  larger  than 
ought  to  have  been  given.  But  here  I  doubt  wliat  conclusion  I 
onglit  to  draw  from  all  the  premises,  and  my  difficulty  arises  from 
my  being  unable  to  fix  any  standard  by  which  I  can  ascertain  the 
excess,  wliich,  according  to  my  view  of  the  case,  I  think  the  jury 
have  ran  into.  When  tfiere  is  no  such  standard,  how  are  the  errors 
of  the  jury  to  be  rectilied  i  What  measure  can  we  point  oat  to 
them  by  wliich  we  ought  to  be  guidedt  I  should  have  been  satis- 
fied, even  if  nominal  dnniuges  only  had  been  given ;  bat,  as  the 
jury  Iiave  formed  a  different  judgment  npon  the  evidence,  I  know 
not  why  my  judgincnt  should  be  preferred  to  theirs  npon  such  a 
subject."     The  rule  was  discharged. 

In  the  case  of  Ohnmbers  v.  Caulfield,  6  East,  344,  it  being  an 
action  for  seduction  in  which  there  was  a  verdict  for  £2000,  npon 
a  motion  for  a  new  trial  Lord  Ellenborough  delivered  the  opinion 
of  the  court,  and  said:  "As  to  the  second  ground  upon  which  the 
new  trial  was  moved  for,  that  of  excessive  damages,  if  it  appeared 
to  us,  from  the  amount  of  the  damages  given,  as  compared  with 
the  facts  of  the  case  laid  before  the  jury,  tliat  tlie  jnry  must  have 
acted  under  the  influence  either  of  undue  motives,  or  some  sross 
error  or  misconception  on  the  subject,  we  should  have  thongnt  it 
our  duty  to  submit  the  question  to  tlie  consideration  of  another 
jury;  but  this  does  not,  upon  a  review  of  tlie  whole  evidence, 
appear  in  the  pi-esent  instance  to  have  been  the  case." 

In  Graham  &  Waterman's  very  exhaustive  works  upon  New 
Trials  (volume  1,  side  p.  452),  the  editors,  after  discussing  a  great 
array  of  cases  beariiig  upon  the  subject  now  under  consideration, 
sum  np  the  authorities  as  follows :  "  It  is  clear  the  reason  for  hold- 
ing parties  so  tenaciously  to  tlic  damages  found  by  the  jnry  in 
pei-sonal  torts  is  that,  in  cases  of  this  class,  there  is  no  scale  by 
which  the  damages  are  to  be  gi'aduated  with  certainty.  They 
admit  of  no  other  test  than  tho  intelligence  of  a  jury,  governed  by 


^d  by  Google 


314         TENNKSSEE  COAL  AND   IKON   R.    00.   V.    KODDY. 

a  sense  of  jnstice.  It  is,  indeed,  one  of  tlie  principal  caneea  Id 
wliicli  tlie  trial  bv  jmy  has  oiiginated.  From  the  pi-olific fountaia 
of  litigiitioii,  numerone  csiees  mnst  dnily  epring  tip,  calling  for  ad- 
judic:ition  for  alleged  injuries,  accoinpniiied  with  fiicts  and  cii'cuiii- 
etatices  affording  no  definite  Btiuidni-d  by  which  tliese  alleged 
wrongs  can  he  measured,  and  wliicli,  from  the  necessity  of  the 
case,  mnst  be  judged  of  and  appreciated  by  the  view  that  may  be 
taken  of  tliein  by  impartiiil  men.  To  the  jmy,  therefore,  as  a  fa- 
vorite and  almost  sacred  tiibniial,  is  committed,  by  nnanimons  con- 
sen  t,tlio  exclusive  task  of  examining  those  facts  andcircnmstiinccs, 
and  valning  tlte  injury,  and  awiirding  comjiensntion  in  tlie  slinpo 
of  damages.  The  law  thatconfois  on  them  iliis  power,  and  cxnciB 
of  them  the  performance  of  the  solemn  trust,  favors  the  presump- 
tion that  they  are  actnated  by  pnre  motives.  It  therefore  makes 
every  allowance  for  different  dispositions,  capacities,  views,  and 
even  frailties  in  the  examination  of  heterogeneous  matters  of  fnct, 
where  no  criterion  can  be  snppUed;  and  it  is  not  nntil  tlic  result 
of  the  deliberations  of  the  jury  appears  in  a  form  calenlaled  to 
shock  the  nnderstanding,  and  impress  no  dnbions  conviction  of 
their  preindice  and  passion,  that  courts  have  found  tliemselvee 
compelled  to  interpose." 

The  decisions  of  this  conrt  have  been  in  harmony  with  the  com- 
mon-law rule,  as  we  have  ascertained  it  to  be  in  the  auihoritieB 
cited. 

In  the  case  of  Boyei«  v.  Pratt,  1  Humph.  98,  Judge  Tnrley  said 
that,  in  actions  for  pure  personal  torts,  new  trials  are  sometimes 
granted  because  of  the  enormity  of  the  damiiges.  "It  is  never 
done  unless,  in  the  language  of  Judges  Thompson  and  Spencer,  in 
the  cjise  of  McCunncll  v.  Hampton,  12  Johns.  286,  'the  damagCB 
are  flagrantly  outrageons  and  extmvagant,  evincing  intemperance, 
passion,  partiality,  or  corruption  snch  as  all  mankind  would  pro- 
nounce unreason  able.'" 

In  thecasQof  Goodal  «.  Thnrman,  1  Head,  217,  this  conrl,  in 
answering  an  argnment  for  a  ticw  trial,  based  upon  the  alleged  ex- 
cessiveness  of  the  damages  i-ecovered  in  an  action  for  seduction, 
said  :  "  After  all,  we  do  not  feel  authorized  to  grant  a  new  trial 
in  this  case,  upon  ihe  single  ground  of  excessive  damages,  although 
we  consider  tlip  amonnt  entirely  disproportionate  to  the  case  made 
in  the  proof.  Tiie  law  on  this  subject  is  cori-ectly  laid  down  in  3 
Gi-eenl.  Ev.  §  255;  'In  trials  at  common  law,  the  jury  are  the 
proper  judges  of  damages ;  and,  where  there  is  no  certain  measure 
of  damages,  the  court  ordinarily  will  not  disturb  their  verdicL 
unless  on  grounds  of  prejudice,  passion,  or  corruption  in  the  jnry. 
To  this  rule  we  have  conformed  our  practice,  and  it  is  the  only 
safe  one  on  tlie  subject."  In  view  of  tiie  rule  at  common  law,  ana 
as  discovered  in  the  decisions  of  our  predeeessoi-s  on  this  bench,  we 
liold  that,  in  actions  for  damages  for  pei-sonal  torts,  it  is  vithui 


^dbyGooglc 


mast;:r  and  bekvant — death— excessive  damages.  346 

the  strict  provinee  of  tfie  jnry  to  estimate  tlie extent  of  the  injnrjr, 
and  assess  the  duina^s;  and  unless  there  is  a  iiiaiiifest  abuse  of 
this  trast,  such  aa  to  iiidicuto  pasEion,  prejudice,  partiality,  or  un- 
aCGoniitable  caprice,  or  corruption,  that  the  trial  judge  ought  not 
to  interfere.  It  follows,  a  fortiori,  lliat  when  the  trial  judge  has 
simply  expressed  his  disappi-oval  of  the  verdict  as  being  excoB&ive, 
yet  has  refused  to  set.it  aside,  this  court  will  not  alone,  upon  the 
ground  of  such  disapproval  or  dissatisfaction  with  the  nmount  of 
die  verdict,  grant  a  new  trial.  The  rules  laid  down  in  tiie  decis- 
ions of  this  court,  concerniiig  the  itranting  of  a  new  trial,  when  the 
circuit  judge  lina  expressed  dissatisfactiori  with  the  verdict,  do  not 
apply  in  actions  for  personal  torts,  where  the  disapproval  of  tlie 
judge  is  limited  to  the  cxcessiveuess  of  the  verdict.  The  intima- 
tion to  the  contrary  in  Riiilroad  v.  Fostei',  10  Lea  366,  by  special 
Judge  Cooke,  was  unneceseary  to  the  decision 'of  that  case,  and  was 
therefore  dictum. 

P;lssing  from  the  duty  of  the  cirenit  judge,  in  view  of  his  ex- 
pressed doitbts  OB  to  the  excessiveness  of  tliis  judgment,  to  the 
application  made  now  to  us  to  grant  a  new  triiil  for 
excessiveness  of  damages  upon  tlie  facts  of  this  case:  SSisSvt™* 
Tlie  intestate  of  the  plaintiu  in  error  is  shown  by  the 
proof  to  have  been  a  young  and  healthy  man,  with  an  expectancy 
■of  life  of  thirty-one  yeai-s.  He  left  a  wife  and  ciiild.  Ho  was  i-e- 
ceiving  wages  of  four  dolljns  per  day.  He  was  sober,  prudent,  and 
judustrions.  The  circumstances  of  his  death  were  very  distressing, 
antl  his  suffering  was  intense.  There  is  evidence  justifying  the 
jury  in  believing  that  Lis  engine  was  thrown  from  the  track  by 
reason  of  a  defect  in  the  road  at  a  sharp  and  dangerous  cnrve  ou 
the  mountain  side,  near  Cowan,  Teun.  Of  this  defect  the  com- 
pany had  notice,  the  proof  siiowing  tliat  the  company's  track- 
walker had,  sevoi-al  times  sliortly  befoi-e  the  accident,  notified  the 
section  boss  that  the  track,  at  this  very  point  where  the  engine 
{upon  which  the  deceased  was  at  tlie  time  lie  met  his  death)  was 
tin-own  from  the  track,  was  out  of  alignment,  and  had  lost  eleva- 
tion, nnd  that  the  derailment  of  a  train  at  that  point  was  to  be 
apprehended.  Tliis  warning  was  neglected.  Thei'e  was  likewise 
proof  justifying  the  jury  in  finding  that  the  engine  furnished 
deceased  that  day,  as  a  substitute  for  the  one  usually  driven  by 
him,  was  out  of  train  ;  and  that  the  driving  wheels  did  not,  as  a 
consequence,  follow  each  other;  and  that  this  defect  made  the 
«ngiiiQ  very  lial)ie  to  leave  the  track.  Tliat  the  deceased  knew  of 
this  habit  of  this  engine  to  jump  the  truck,  wo  do  not  think  fairly 
inferable  from  the  proof,  fliat  he  objected  to  taking  this  engine 
is  shown,  and  that  he  finally  yielded,  and  took  it,  when  the  master 
machinist  offered  to  go  in  liis  place,  is  proven.  Bnt  we  think  his 
objections  to  this  engine  were  wholly  based  on  grounds  not  affect- 
ing its  road-worthiuesB.     Besides,  the  master  mechanic,  whose  duty 


^dbvGooglc 


843         TENNESSEE  COAL  AND   IRON   R.   GO.   V.    RODDY. 

it  was  to  fnrnish  liitn  witli  an  engine,  assared  liim  that  the  engine 
was  ill  tboi-ougli  repiiir. 

Under  all  the  facta  of  the  case,  we  cannot  say  that  the  verdict  is 
excessive  to  a  point  indicating  either  partiality,  pasaion,  prejudice, 
capi'ice,  or  con-uption. 

So  error  in  charge  is  complained  of.  The  report  of  the  referees 
will  be  set  aside,  and  tlie  judgment  of  the  circuit  court  affirmed. 

Oamagai  for  ln|ur(«a  Cauting  Death.— <9fatutory  Prtmtiont.~T\w  right 
to  recover  dumages  for  injuries  causing  death  is  purelj  statatory.  In  the 
foliowiog  Stutes  tlie  amount  to  be  recovered  canaot  exceed  the  sums  men- 
tioned: Colomdo,  $8000  to  $oOOO;  Connecticut,  (800  to  $5000;  Illinois, 
15000;  Indiana,  $10,000;  Kaosaa,  $10,000;  Maine,  $600  to  $5000;  Hbh»- 
chusetts,  $500  to  $5000;  Minuesuta,  $5000;  Hlaaouri,  $5000;  Nebraika, 
$5000;  Oliio,  $10,000;  Oregon,  $5000;  Virginia,  $10,000;  West  Virginia, 
$10,000;  Wisconsin,  $5000.  In  tlie  following  States  tbe  amount  to  be 
recovered  is  such  sum  as  the  jury  ma?  deem  just:  Alabama,  ArkanMu, 
Calirornia,  Michigan,  Mississippi,  Nevada,  New  Jersey,  New  York,  North 
Carolina,  Vermont. 

For  a  complete  summary  of  the  statutory  provisions  on  this  subject  in  the 
various  States,  see  Patterson's  Railway  Accident  law,  404. 

In  general,  where  no  otber  measure  of  damages  is  prescribed  by  the  statute, 
it  vrilT  be  the  pecuoinry  losa  to  the  person  for  nboge  benefit  the  action  ia 
brought.  BkkeT.  Midland  R.  Co.,  IS  Ad.  and  Ell.  (N.  8.)  S3;  Penna.  R.  «. 
Butler,  57  Pa.  Bt.  835;  N.  P.  R.  e.  BobinsoD,  44  Pa.  Bt.  ITS;  Needbaro,  e. 
G.  T.  R.,  88  Vt.  284;  Rockford,  etc.,  R.  Co.  n.  Delany,  83  111.  108. 

Pecuniary  Lott. — This  term  includes  a  reasonable  expectation  of  pecuDiary 
beneBt  from  the  continuance  of  the  life  of  the  person  killed.  Franlclin  e,  8. 
E.  R.,  8  H.  A  N.  au;  Dalton  «.  S.  E.  R.,  4  C.  B.  (N.  B.)  296;  Braraall «. 
Lees,  SOL.  T.  Ill;  L.  ft.  &  F.  B.  R.  c.  Barker,  80  Ark.  401;  a.  c,  19  Am. 
&Eng.  R.  R.  Cas.  IBS;  Rain  c.  St.  Louis,  etc.,  R.  Co.,  71  Mo.  104;  0  Am. 
AEng.  R.  R.  Cob.  610;  Baltimore,  etc.,R.  Co.  e.  State  of  Maryland,  21  Am. 
&  Eng.  R.  R.  Cas.  202. 

The  jury  cannot,  however,  take  into  consideration  "  the  opportunities  of  . 
acquiring  we&lth  or  fortune  by  change  of  circumstances  in  life."     Mansfield 
Coal  and  Coke  Co.  v.  HcEnery,  8  Weekly  Notes  of  Cases  (Pa.)  SS. 

The  loss  of  the  companionship  of  a  husband  is  not  a  pecuniary  loss.  Board 
of  Commiasionere,  etc.,  c.  Lcgg,  93  Ind,  628.  But  in  Penna.  R,  Co.  v.  Good- 
man, 62  Pa.  St.  820,  the  court  charged  (he  jury  that  the  damages  sustained 
by  the  husband  for  the  loss  of  his  wife  "should  be  a  just  compensation  for 
the  value  of  the  com  pan  ion  ah  ip  and  services  lost  to  him  by  reason  of  this 
unfortunate  coUiaion."  Held,  not  to  be  error.  See,  also,  Lett  r,  St.  Law- 
rence, etc.,  R.  Co.  ai  Am.  &  Eng.  R.  R.  Cas.  165. 

Id  an  action  for  damages  for  the  death  of  a  cliild  incapable  of  eamiDK  any- 
thing, or  rendering  service  of  any  value,  the  value  of^  its  probable  future 
services  to  the  parent  during  its  minority,  is  a  matter  of  conjecture,  and  may 
be  determined  by  the  jury  without  the  testimony  of  witnesses.  Little  Rock, 
etc.,  R.  Co.  c.  Barker,  89  Ark.  491;  s.  c.  19  Am,  &  Eng.  R.  R  Cas.  195. 
See,  also,  McQovern  it.  N,  Y.,  etc,  R.  Co.,  67  N.  Y,  417;  Ihl  e.  Forty-second 
St.  R.  Co.,  47  N.  T.  317;  Nagel  t>.  Missouri  Pac.  R.  Co.,  10  Am.  &  Eng.  B. 
R.  Ca«.  702. 

It  ia  error  to  charge  the  jury  that  they  may  give  such  damages  as  they  may 
deem  a  fair  and  just  compensation  for  the  pecuniary  loss  resulting  from  the 
)>erson's  death,  without  making  reference  to  any  proof  of  the  amount  of 
damages  sustained.     North  Chicago  Rolling  Hills  Co.  «.  Morrissey,  18  Am. 


^d  by  Google 


MA8TBB  AND   SERVANT— COLOB  BLINDNESS.  347 

&  EDg.  R.  R.  Cu.  47;  C,  B.  A  Q.  R.  e.  gjkes,  M  HI.  162;  b.  c,  2  Am.  & 
Bog.  R.  R.  Cu.  264;  BurliDgtoD,  etc.,  R.  e.  Coates,  16  Am.  &  Sua.  R.  R. 
Cas.  865. 

Or^for  Mtntal  S»fftrvng». — Damages  are  Dot  to  be  KiTeu  as  ^wlaUum  tor 
grief  or  mental  guSeriog  on  the  part  of  the  relativea  of  the  deceased.  BUkfr 
•.  The  Midland  R.  Co.,  18  Q.  B.  OS;  Bait.  &  Ohio  R  v.  State  of  Maryland, 
21  Am.  &  Eog.  R.  R.  Cas.  202;  P.  R.  «.  Zebe.  8S  Pa.  St.  318;  I.  C.  R.  o. 
Weldon,  62  III.  290;  N.  &  C.  R.  v.  Scerens,  9  Heialc.  (Tenii.)  12.  Compart 
B.  &  O.  R.  B.  Noell,  82  Gratt  (Vs.)  894. 

In  Penno.  II.  Co.  d.  Butler,  GT  Pa.  St.  885,  Sharswood.  C.  J.  sajs:  "AfUr 
an  attentive  eiaraination  and  review  of  all  thn  cases  nhich  have  heretofore 
been  decided,  we  are  of  opinion  that  the  proper  measure  of  damages  is  tlie 
pecuniar;  loss  suffered  bj  the  parties  entitled  to  the  sam  to  be  recovered — ia 
this  instance  the  childreo  of  the  deceased — without  an;  tolativm  for  distress 
of  mind,  and  that  this  loss  is  what  the  deceased  would  have  probably  earned 
bj  his  intellectual  or  bodit;  labor  in  his  busineas  or  profession  during  th» 
reuduo  of  his  lifetime,  and  which  would  have  gone  to  the  benefit  of  hia  chiU 
dren,  taking  into  consideration  his  age,  ability,  and  dispoeition  to  labor,  and 
hts  habits  of  living  and  expenditure." 

fansral  Expentet. — Funeral  expenses  are  recoverable  ss  damages.  P.  R. 
e.  Zebe,  88  Pa.  St.  818;  Murphy  «.  N.  Y..  etc.,  R.,  88  N.  T.  446;  s.  c,  8  Am. 
&  Eng.  R.  K  Cos.  490;  Atchison,  etc.,  R.  Co.  r.  Weber,  21  Am.  &  Eng.  R. 
a  Cas.  418. 

A  diffirent  rule  prevails  in  England.  Dalton  e.  Southeastern  R.,  4  C.  B, 
(S.  S.)  306. 

Life  tables  are  admissible  in  evidence  to  show  the  probable  duration  of  lbs 
life  of  a.  person  of  decedent's  age.  Banter  t).  N.  Y.,  etc.,  R.,  66  N.  7.  50; 
Hacon  R.  Co.  v.  Johnson,  88  6u.  409;  Walters  o.  Chicago,  etc..  R.  Co.,  41 
Iowa  71 ;  Burlington,  etc.,  R.  Co.  n.  Coates,  IS  Am.  £  Eng.  R.  R.  Cas.  165. 

Somionl  OiiowjjM. ^Nominal  damages  may  Ire  recovered  of  ihe  railroad 
company  if  it  appears  that  the  pcrsoo's  death  was  caused  by  the  wrongful 
act  or  omission  of  the  company,  although  no  actual  pecutiiary  damages  may 
have  been  shown  or  suffered.  Atchison,  etc.,  R.  Co.  o.  Weber,  21  Am.  A* 
Eng.  R..R.  Cas.  418;  C.  &  A.  R.  e.  Shannon,  43  111.  338;  Chicago  d.  8c hollen, 
?6  III.  408.  See,  also,  note  to  Lehigh  Iron  Co.  e.  Rupp,  T  Am.  &  Eng.  R.  R 
Cm.  so. 

Buit  in  one  BtnU  wider  Statute  of  another  Slate. — See  Limekiller  v.  Hanni- 
bal A  St.  J.  R  Co.,  19  Am.  &  Eng.  R.  R.  Cas.  184. 

Sxeemive  Bnmager.^See  note  to  Louisville,  etc,  R.  Co.  v.  ThompsOD,  80 
Am.  ±  Eng.  R  R  Caa.  041. 


KoUMB. 

{Advanee  Com,  Alabama.    July  12,  1887.) 

As  a  general  rule,  when  a  statute  prescribes  the  fees  winch  an  officer  shall 
receive  for  lervices  rendered,  and  does  not  speciitllj  provide  when,  how,  or 
by  whom  they  shall  bo  paid,  the  person  nl  whoso  request  the  services  are 
rendered  is  liable  for  the  fees,  and  tho  officer  is  entitled  to  payment  as  the 
■ervices  are  rendered. 


^dbvGooglc 


348  BALDWIN   V.    KOn.VS. 

Under  the  pTOTuiona  of  the  act  approved  Fcbniarj  28,  1887,  entitled  "An 
act  for  the  protection  of  tbe  travelliDg  |mblic  agaioBt  occideatH  caused  by 
color-blindness  and  defective  vision"  (Sess.  Acts  1886-87,  pp.  87,  89),  wbicb 
re<)uires  certuin  railroad  emplojeeB  ernplojed  in  specified  capacities  to  sub- 
mit to  examination  bj  a  medical  examiner  appointed  by  the  governor,  and 
obtain  a  certificate  as  to  their  freedom  from  color-blindness  or  other  defect 
of  TisioD,  whlcli  examination  sball  be  made  at  tbe  expense  of  tbe  railroad 
company  in  whose  employment  the  applicant  ia,  the  medical  examiner  can- 
not lawfully  refuse  to  make  bo  examination  because  tho  railroad  company 
refuses  to  pay  the  prescribed  fee,  nor  require  pay  from  the  applicant  himself. 

On  refusal  of  tbe  medical  examiner  in  such  esse  to  make  examination  and 
grant  a  certificate,  if  the  applicant  «hou!d  be  found  qualified,  raaiidamiu  lies 
to  compel  liim. 

The  medical  examiner  and  the  applicant  both  claiming  and  asserting  rights 
under  the  said  statute,  aeitber  is  in  a  position  to  question  or  impeach  its 
constitutionality. 

Appeal  from  circuit  conrt,  Monlgoitiery  county, 
Apjilicatioii   for  mandamus  to  medical  exuminer  refusing  to 
tn.ike  exmnination  and  issue  certificntu  ae  to  color-bUudnesB. 
Trot/,  Tonvpkina  dk  Loudon  for  iippellant, 
Jones  dt  Juil&ner  aild  Waits  <&  Son,  contra. 

Clopton,  J. — By  "  An  act  for  tlie  protection  of  the  travelling 
pTiblic  against  accidents  caused  by  color-blindness  and  defective 
vision,"  approved  February  28,  1887,  all  pei'sons  affected  with 
Fic™.  color-blindness  and  loss  of  visual  power,  one  or  botli,  to 

tiie  extent  defined  in  the  requirements  of  tiie  act,  are  disqnalified 
from  serving  on  railroad  lines  within  tliia  State  in  the  capacity  of 
locomotive  engineer,  fii-einan,  tiiiin  conductor,  station  agent,  ewitch- 
tnan,  d:ig-maii,  gate-teiidet,  signal-man,  or  in  any  other  position 
which  requires  the  use  or  discrimination  of  form  or  color  signals: 
and  for  any  pei-eon  to  serve  in  any  of  tiie  capacities  mentioned 
witiiont  having  firet  obtained  a  certiticate  of  fitness  for  his  position, 
in  accordance  with  the  provisions  of  the  act,  is  made  a  misde- 
meanor. Examinations  and  re-^xamiuations  are  required,  under 
tho  act,  on  and  after  Jnnel,  1887,  from  and  after  which  day  it  is 
declared  the  act  shall  be  in  force:  "Provided,  that  those  persons 
already  in  emplovinent  in  said  capacities  on  the  first  day  of  Jnne, 
1887,  shall  l)e  allowed  until  the  first  day  of  August,  1887,  in  which 
to  procure  the  necessary  certificates."  For  the  purpose  of  mak- 
ing tlie  examinations,  it  is  made  the  duty  of  the  governor  to  appoint 
as  examiners  a  snitable  number  of  properly-qualified  medical  men, 
and  to  so  distribute  them  tlirongh  the  State  as  to  best  subserve  the 
tsonvenience  of  ail  parties  concerned.  Section  5  provides ;  "  That 
any  one  of  tlie  examiners  is  her-cby  authorized  to  make  the  ex- 
amination and  issue  the  certificates  required  by  tliis  act,  and  for 
each  and  every  such  examinatiun  he  sliall  be  entitled  to  a  fee  of 
three  dollara."     Acta  Ala.  1886-87,  p.  87. 

Tlie   appellee,  being  a  train  conductor   lit   tlie  employ  of   the 


^d  by  Google 


MA8TEE  AHD  SERVANT — OOIOB  BLINDNESS.  349 

Louisville  &  Nasliville  K.  Co.,  applied  to  appellant,  one  of  the  ex- 
aniinere  appointed  by  the  governor,  for  exatniiiation,  and,  if  found 
gnalified,  for  the  necessary  certificate.  Wliile  nppcllunt  offered  to 
make  the  examiniition,  he  stated  that  he  would  not  issue  a  certifi- 
cate tu  appellee,  tliongh  qnalitied,  nnless  he  wonld  pay  the  fee  for 
tlie  examination,  assigning  as  the  reason  that  he  had  previonsly  ex- 
amined sovei'al  employees  and  the  company  iiad  refnsed  to  pay  th& 
fees,  decliirlns;  that,  they  intended  to  contest  their  liability  and  tlie 
oonstitntionality  of  the  statute.  The  appellee  declined  to  pay  the 
fee,  and  institnted  this  proceeding  for  a  mandamua  to  compel  the 
examiner  to  examine  him  ;  and,  if  found  fit  for  liis  position,  to  give 
Liin  tlie  requisite  certificate. 

A  public  officer  is,  beyond  controvei-sy,  entitled  to  compensatioii 
for  his  services;  and  the  general  rnle  is  that  if  a  statute  prescribe* 
the  fees  which  tlie  officer  shall  i-eceivc,  and  omits  to  epeciiiily  pro- 
Tide  when,  how,  ov  by  whom  tliey  shall  be  paid,  the 
person  at  whose  request  the  service  is  rendered  is  liable,  -ciimoi  oior 
and  the  officer  is  entitled  to  p;iyment  ns  the  services  wh»t  a  pro- 
are  performed.  People  v.  Harlow,  29  III.  43;  Eipley  "™°""* 
V.  GifEord,  11  Iowa,  367.  If  there  was  no  provision  of  tlie  statnte 
relating  to  the  payment  of  the  fee  allowed  the  examiner  other  than 
the  fiftli  section,  there  conld  be  no  serious  controversy  as  to  the 
liability  pf  the  applicant  for  examination,  .ind  tliat  the  exnminerft 
would  i>e  jnsti'fica  in  refusing  to  make  the  examination,  and  to 
issue  tiie  cei'tificate,  on  his  declaration  that  he  wo'uld  not  pay  the 
fee.  But  the  third  section  expressly  and  in  unarubiguons  terms 
declares  that  the  examination  and  re-exnuiinstions  required  shall 
be  "at  the  expense  of  the  railroad  companies ;"  and  in  the  Fame- 
section  it  is  made  a  misdeineuiior  for  any  railroad  company,  ottieer^ 
or  agent  of  the  same,  to  employ  in  any  of  the  capacities  specified  & 
person  who  does  not  possess  a  certificate  of  fitness,  issued  in  ac- 
cordance with  the  requirenienis  of  the  act.  Comparing  and  con- 
struing the  two  sections,  the  fifth  fixes  the  amount  of  the  fee,  and 
the  third  provides  by  whom  it  shall  he  paid.  When  the  services 
and  fees  are  both  regulated  by  statute,  an  officer  cannot  exact  any 
fee  not  allowed  ;  and  if  the  statute  further  provides  by  whom,  or 
the  manner  in  which,  the  fees  shall  be  paid,  he  cannot  exact  a  fee 
other  tlian  as  so  provided,  though  he  may  have  performed  the  serv- 
ices at  the  request  of  another  party.  Brophy  v.  Marble,  11& 
Mass.  548. 

The  statute  requires  examinations  of  all  persons,  and  the  posses- 
Bion  of  the  necessary  certificates,  before  serving  in  any  of  tiie  ca- 
pacities specified,  whether  or  not  they  were  in  the  em-  KHPLOTccion 
ployment  of  a  raih-oad  company  on  June  1,  1887  ;  and  5SS"  SJ 
it  is  insisted  that  it  could  not  have  been  intended  that  ™"*"- 
tlie  examination  of  those  not  employed,  and  who  may  never  be  em- 
ployed, should  be  at  the  expense  of  the  railroad  companies.    It 


^dbyGooglc 


360  BALDWIN  V.    EOUKS. 

will  be  conceded  tliat  the  terms,  though  comprehenBive,  sre  !□< 
definite  and  uiicei'taiii  in  this  respect;  and  it  may  be  that,  in  order 
to  avoid  8iieh  resultant  hardship  and  injustice,  the  provieo  to  the 
third  section,  extending  to  employees  the  time  for  obtaining  the  cer* 
tificaCe,should  be  construed  as  designed  to  limit  and  qualify  tiie  geo- 
eral  provision  ;  so  that  npplicants  for  examination,  not  employees, 
would  be  persoiinliy  liable  for  the  fee  of  the  examiner,  there  l>eing 
in  such  case  no  provision  tliat  it  sliall  be  otlterwise  paid.  But  snch 
is  not  this  case.  The  petition  states,  and  the  facts  are  admitted  by 
the  answer,  that  the  petitioner  lias  been  in  the  employment  of  tlie 
Lonisville  &  Nashville  H.  Co.  as  conductor  for  six  yeare  past,  and 
that  he  informed  the  examiner  tliat  he  was  and  is  so  employed, 
and  made  tiie  application  as  snch  employee.  These  averments  de- 
fine the  status  of  petitioner,  and  show  tiiat  he  falls  within  the  class 
of  persons  entitled  to  the  extended  time  in  which  to  procure  the 
eertiticatcs.  And  counsel  for  both  parties  concur  in  the  construc- 
tion tliat  as  to  employees  the  exiintinutions  are  made  at  tlie  expense 
of  the  employing  railroad  company, 

Coansel  for  appellant  insist  that  it  is,  nnder  the  statute,  the  duty 
of  the  company  to  have  its  employees  examined ;  and  that  the  ex- 
flminer  should  not  be  required  to  make  the  examination  and  issue 
^^^  the  certificate,  especially  when  the  company  refuses  to 

-rai  JaisL*.  pay,  and  denies  its  liability,  without  payment  of  the 
tee  OQ  making  the  examination  and  delivery  of  the  cer- 
tificate. The  argument  is  that  the  legislature,  in  framing  a  law 
for  the  protection  of  human  life,  conid  not  have  intended  to  pro- 
vide for  the  appointment  of  at^nts  to  carry  it  into  operation,  and 
iaipoee  upon  tbem  the  risk  andexpense  of  protracted  litigation  to 
obtain  their  compensation.  Consequeoces  may  and  should  be  con- 
sidered when  eonstmiug  terms  of  doubtful  import;  but,  notwith- 
Btanding  such  may  be  the  consequences,  the  legislature  made  the 
statute ;  and,  if  ita  lex  scr{j)ta  est,  it  is  our  duty  to  declare  it  as 
written.  If  the  construction  contended  for  be  correct,  the  conse- 
qnences  to  the  employees  would  be  far  more  reaching  and  eerioas, 
making  an  employee's  right  to  putBue  a  lawful  occupation,  when 
lie  has  done  all  required  of  him,  dependent  upon  performance  by 
a  third  person,  for  whom  be  is  in  no  wise  responsible,  and  over 
whom  he  has  no  control.  The  case  is  not  analogous  where  tlte 
fees  for  a  license  to  pursue  an  avocation  are  payable  by  the  party 
himself.  He  is  personally  responsible,  and  has  control  of  himself. 
An  employee  must  be  examined  and  obtain  the  requisite  certificate, 
or  abandon  his  occupation,  or  subject  himself  to  punishment.  It 
could  not  have  been  designed,  by  a  statute  which  requires  an  em- 
ployee to  be  examined  by  an  examiner  appointed  by  the  State  to 
obtain  his  certificate  of  fitness,  and  exempts  him  from  liability  for 
the  fee  by  imposing  the  expense  upon  his  employer,  to  deny  him 
the  right  to  examination  and  the  certificate  merely  because  the 


^d  by  Google 


MABTEB  AND  8EEVANT — COLOR   BLINDNESB.  361 

employer  may  refuse  to  pay.  The  legislature  Bbould  and  must 
have  contemplated  that  the  railroad  companies  had  a  legal  right  to 
CODteBt  their  liability,  and  by  providing  in  general  term  that  the 
examinations  shall  be  at  their  expense,  withobt  special  provisions 
as  to  the  mode  or  time  of  payment,  left  the  exammer  to  resort  to 
the  ordinary  remedies  for  the  enforcement  of  dispated  liabilities. 
Whatever  may  be  the  consequences  to  the  examiner,  they  are  the 
natural  results  of  the  anomalone  legislation  of  prohibiting  a  citizen 
to  engage  in  a  lawful  employment  withont  first  obtaining  a  license 
,or  certificate,  and  reqninng  the  fee  to  be  paid  by  a  third  person 
over  whom  he  has  no  power.  It  will  not  do  to  say  that  the  em- 
ployee may  avoid  the  difficulty  by  paying  the  fee.  It  is  a  suffi- 
cient answer  that  the  law  does  not  require  him  to  pay  it.  The 
examiners  accepted  the  appointment  witn  a  knowledge  of  the  pro- 
TtsioDS  of  the  statute,  and  they  take  it  oum  onere.  Their  accept- 
ance is  voluntary.  The  examination  of  the  employee  and  procar& 
ment  of  the  necessary  certificate  are  compulsory.  Pollard  v. 
Brewer,  69  Ala.  130. 

The  offer  to  examine,  accompanied  with  the  avowal  bj  the  ex- 
aminer that  he  would  not  grant  a  certificate  of  fitness,  though 
found  qualified,  without  payment  of  the  fee,  was  substantially  and 
practically  a  refusal  to  perform  the  duty  which  he  owed  _^^ 
the  petitioner  under  the  statote,  by  affixing  to  its  per-  r'Som"  bS 
formance  an  nnanthorized  condition,  ^seeasion  of  JSSS?oi  " 
the  certificate  is  the  statutory  authority  to  serve  in  the 
specified  capacities ;  the  shield  which  protects.  The  examination 
is  the  means  to  a  substantial  end,  and,  if  the  apphcant  is  fonnd 
qualified,  would  be  meaningless  and  fruitless  without  the  certifi- 
cate. The  law  regards  the  substance.  The  appellant  was  not  au- 
thorized to  make  uie  payment  of  the  fee  a  condition  of  the  delivery 
of  the  certificate,  and  hence  has  declined  to  examine  the  petitioner 
in  the  sense  the  statute  contemplates  and  provides.  The  petitioner 
has  a  clear  legal  right  to  be  examined,  and,  if  found  qualified,  to  a 
certificate  of  fitness  for  his  position.  The  corresponding  duty  is 
devolved  on  the  examiner  to  make  the  examination,  and  grant  the 
certificate,  if  found  competent;  and  mandamus  is  the  only  ade- 
qnate  legal  remedy  to  compel  its  performance.  The  petitioner  ia 
entitled  to  a  mandatory  order  reqairing  the  examination,  without 
reference  to  the  pavment  of  the  fee.  Mobile  Mnt.  Ins.  CJo.  v., 
Cleveland,  76  Ala.  321. 

Neither  |»rty  is  in  a  position  to  assail  the  constitutionality  of 
the  statute,  both  claiming  and  asserting  rights  under  it  as  a  valid 
enactment.  We  have  therefore  not  considered  the  constitutionality 
of  any  of  its  provisions,  and  do  not  wish  to  be  understood  as  inti- 
mating any  opinion.  We  have  assumed  its  validity,  aa  between 
the  parties  to  this  proceeding,  solely  for  the  purposes  of  this  de- 
cision.   Affirmed. 


^d  by  Google 


EAST  TENNESSEE,    ETC.,    E.    00,   V.    MALOT. 


East  TsmiESBEE,  Yebqibu.  ahd  Obobou.  B.  Co. 


(Advaiue   Oate,  Qeorgia.    FArvary,  26,  1887.) 

Tbe  declarations  of  a  conductor,  stating  what  the  eogineer  told  him  to  foe 
the  cause  of  au  accideot,  is  mere  hearsa;,  and  not  admiaaible  againat  the 
com  pun  J. 

Tlie  principle  of  dying  declarationB  does  not  apply  to  civil  cases,  and  in 
an  action  againsC  a  railroad  company  to  recover  damages  for  the  death  of  x 
person,  it  is  error  to  admit  in  evidence,  a  statement  mode  by  tbe  injured 
person  shortly  before  his  death,  but  some  time  after  the  accident;  such 
atatement  not  being  a  part  of  tbe  rw  geitm,  but  mere  hearaay. 

Tlie  fact  the  mother  of  the  person  killed  was  living  apart  from  her  bna- 
band  and  was  aapported  by  the  deceased,  her  minor  son,  v^ill  not  preclude 
her  from  bringing  an  action  against  the  railroad  company  to  recover  for  her 
Bon's  death,  wliure  the  action  is  not  only  in  the  name  of  tbe  mother,  but  ia 
Uie  name  of  the  father  for  her  use. 

Railroad  companies  are  not  liable  to  employees  aa  they  are  to  passeDgera, 
and  in  an  action  by  an  employee  against  v.  railroad  company,  or  by  one  who 
aues  for  the  death  of  an  employee,  it  must  be  shown  that  such  employee,  at 
the  time  the  injury  was  received,  waa  free  from  Fault,  or  that  the  defendant 
company  was  in  fault,  before  any  presumption  of  negligence  will  ariM 
against  the  company. 

An  employee  of  a  railroad  company  who  is  killed  or  injured  must  be  free 
from  fault  in  order  to  recover ;  and  the  rule  which  allows  a  partial  recovery 
against  a  railroad  company,  notwithstanding  the  contributory  negligence  of 
the  plaintiff  or  person  injured,  does  not  apply  to  the  case  of  an  injury  sus- 
tained by  an  employee. 

£rkou  to  euperior  court.  Dodge  connty. 
Rr^eris  t&  Smith,  for  plaintiff  in  error. 
Ddacey  &  Bishop  (bj  brief)  for  defcndanL 

Blahdfobd,  J. — Tliis  was  an  action  brought  by  the  plaintiff 
^^  acainst  tlie  defendant  for  damiigea  wliich  site  alleged 

"*™°'  slie  snstaincd  by  reason  of  tbe  defendant  company  liav- 
ing,  by  tbe  careleeeneBS  of  its  eervaiite  and  agents,  killed  a  minor 
son  of  here.  A  verdict  was  reiidei'ed  for  the  plaintiff,  dud  a  mo- 
tion made  for  a  now  trial ;  and  tipoD  ita  denial,  exceptioD  was 
taken  and  error  assigned  as  follows: 

(1)  "Because  tbe  oonrt  erred  in  admitting  the  testimony  of  F. 
8.  King,  to  the  effect  that  William  Bnrke,  the  C!<»i< 
'  ductor  of  tlie  train,  who  was  on  the  engine  at  tbe  time 
of  the  accident,  told  witness  in  reply  to  tlie  qnestion  of 
how  it  happened,  that  Mr.  Norris,  the  engineer,  told  him  he  ii*d 


i,z.dbvGoOgle 


MASTKB  AND   SERVANT — DKATH.  353 

piiHed  back  the  revei-ee  lever  of  the  eDgine,  and,  it  flew  back,  giv- 
ing the  train  a  jerk  which  jerked  voang  Maloy  off  from  the  back 
of  the  tender  of  the  engine,  and  tne  ears  ran  over  him." 

1.  We  think  this  was  error.  It  was  a  statement  made  shortly 
after  the  accident,  by  the  conductor  to  the  witness,  of  what  he 
beard  t!ie  engineer  state.  This  is  mere  hearsay  testimony,  and  for 
that  reason  was  inadmissible. 

(2)  "Because  the  conrt  en-ed  in  admitting  tlie  testimony  of  Dr. 
Herman  that,  prior  to  his  death,  yonng  Maloy  said  that  the  train 
had  stopped  to  take  on  water  at  the  tank  below  East-  -^^^ 
man,  and  the  engine  suddenly  backed   the   train,  and  q^d^mS 
jerked  liim  off  between  the  cars,  when  he  was  run  over." 

2.  We  think  this  evidence  was  inadmissible.  The  statement 
was  not  made  at  or  near  the  time  of  the  accident,  so  as  to  be  ad- 
missible as  a  part  of  tiie  res  geatm,  bnt  from  aught  that  appears  ia 
the  record  it  may  have  been  made  long  afterward,  and  it  is  of  it. 
self  mere  hearsay.  It  cannot  be  admitted  on  the  principle  of 
dying  declarations,  althongh  the  party  died  shortly  afterward;  no 
such  declarations  being  admisGible  in  a  civil  case,  hnt  in  criminal 
cases  only. 

In  the  fonrth  ground  of  the  motion  for  new  trial  complaint  is 
made  that  the  testimony  of  Dr.  C.  T.  Latimer  and  F.  S.  King  was 
admitted  by  the  court  to  the  same  effect;  and  we  think  it  was  inad- 
missible for  the  reasons  already  stated. 

(3)  Error  is  further  complained  of  because  the  court  charged  the 

Jury  that  if  Mrs.  Maloy  was  living  separate  from   her  husband, 
olin  Maloy,  and  was  using  the  wages  of  her  son  Thomas  Alexan- 
der Maloy  for  tlie  support  of  herself  and  her  otlier 
minor  children,  she  was  entitled  to  recover,  subject  to  ixtm^'aat 
the  modifications  given  hereafter.  SiS.''""^™' 

3.  We  see  no  ei-ror  in  this  charge  of  the  court.     The 

action  is  not  only  in  the  name  of  the  mother  of  the  deceased,  who 
was  a  minor,  but  in  the  name  of  the  father,  for  her  use,  and  she 
could  well  maintain  the  action  under  these  circumstances. 

(4)  The  next  assignment  of  error  is  that  the  court  erred  in 
charging  tlie  jury  that  "the  liability  of  a  railroad  company  to  an 
emplovee  was  the  same  as  to  a  paEsenecr  for  ininries 

innicted  by  the  negligence  of  coempioyees ;  charging-  biutt  fot  rm 
in  the  same  connection,  that  "railroad  companies  are  no'm°  So 
common  carriers,  and  liable  as  ench.  As  such  compa-  '"*■""* 
nies  necessarily  liave  many  employees  who  cannot  possibly  control 
those  who  shoald  exercise  care  and  diligence  in  running  trains, 
such  companies  shall  be  liable  to  such  employees,  as  to  the  passen- 
gers, for  injuries  arising  from  the  want  of  such  care  and  dili- 
gence." 

4.  We  think  that  every  proposition  contained  in  this  charge 
was  error.    Kailrbad  companies  are  not  liable  to  employees  as  tbey 

81  A.  A  £.  R.  Cu.— 28 


^d  by  Google 


3fl4  EAST  TENNESSEE,   ETC.,    R.    CO.   V.    MAl.OY. 

ftre  to  passeiigerg ;  bnt  in  an  action  hy  au  employee  against  a  rail' 
road  company,  or  hy  oiie  wlio  Buee  for  tlie  deatli  of  an  employee, 
it  iDiieC  be  abown  tliat  such  employee,  at  the  time  tlie  iujnry  was 
received,  was  free  from  fault,  or  tLat  the  defendant  compaiiy  was 
.in  fault,  before  any  presumption  wonld  arise  against  the  company 
of  negligence.  Where  it  is  shown  that  the  company  itself  is  at 
fanlt,  then  the  presumption  is  that  the  employee  was  not  at  fault ; 
ot,  where  it  is  saown  tliat  the  employee  was  free  from  fault,  then 
the  presumption  would  arise  that  the  company  was  at  fault,  and 
tlie  onus  would  be  upon  it  to  remove  that  presumption  by  showing 
proper  diligeece.  But  a  different  rule  applies  in  regard  to  passen- 
vers.  Where  au  injury  is  sustained  by  a  passenger  by  reason  of 
the  running  of  the  ea»  of  a  railroad  company,  the  presumption  is 
that  the  railroad  company  was  at  fault,  and  it  is  iucumbent  npoii 
such  company  to  remove  the  presntnption  by  showing  that  it  used 
all  reasonable  and  ordinary  care  and  diligence  to  prevent  Uie  in- 
jury. 

:.  (B)  "  Because  the  court  erred  in  charging  the  jury :  ^  A  railroad 
company  shall  be  liable  for  any  damage  done  to  persons,  stock,  or 
•   ■  other  property  by  the  running  of  the  locomotive  or  ears 

mIrilXi'iS  or  other  maehioery  of  such  companies,  or  for  damage 
comw.""  done  by  any  person  in  the  employment  and  service  of 
such  companies,  unless  it  shall  appear  from  the  evi. 
dence  that  their  agents  have  exercised  all  necessary  and  reasonable, 
care  and  diligence  ;  the  presumption  in  all  cases  being  against  the 
company  with  the  following  modifications :  That,  where  the  party 
injnred  was  in  a  position  to  control  the  movements  of  the  train, 
ancb  as  an  engineer  or  a  conductor,  injured  in  the  running  of  the 
train,  that  the  presumption  of  negligence  did  not  arise  against  tlie 
company  ;  but  this  modification  did  not  apply  to  one  who  was  en- 
gaged to  sweep  out  the  train,  or  like  employees,  such  as  fireman.' " 

5.  We  think  this  eliarge  also  error  for  the  reason  stated  above. 
(6)  "  Becaase  the  court  erred  in  charging  tlie  jnry  that  *  if  the 

iTTOBT  '^'■"oad  was  at  fanlt,  and  the  party  injured  blameless, 
■■oLiaiRoi  there  conld  be  a  recovery  for  the  full  amount  proven; 
"™™'*'  but,  if  both  parties  are  at  fault,  tlie  recovery  should 
be  diminished  by  the  jury  according  to  or  in  proportion  to  the 
negligence  of  the  party  injured  in  the  premises.  No  pei-son  shall 
recover  damages  from  a  railroad  company  for  injury  to  himself 
or  his  property  when  t!ie  same  is  done  by  liip  consent,  or  is  caneed 
by  his  own  negligence.  If  the  party  injured  and  the  agent  of  the 
company  are  botli  at  faul  t,  the  person  may  recover,  but  the  damages 
shall  be  diminished  by  tjie  jury  in  proportion  to  the  amount  of 
default  attributable  to  him.' " 

6.  This  charge  was  also  error,  and  the  doctrine  of  contributory 
negligence  does  not  apply  in  the  case  of  an  injury  sustained  by  an 
employee.  He  must  be  free  from  fault ;  and  if  the  injury  is  sustained 


^dbvGooglc 


Master  ahd  servant — death.  355 

by  him  in  conBeqnence  of  aay  fault  or  negligence  on  Lie  part,  licr 
cannot  recover,  and  in  tliis  case,  the  employee  being  dead,  and  tlie 
fioit  being  by  the  parent  to  recover  damages  for  the  killing  of  a 
minor  son,  sne  cannot  recover  nnless  if  he  were  in  life  be  conld 
recover.  She  stands  in  no  better  condition  than  tlie  deceased 
wonld  liave  stood  in  bad  lie  not  been  killed  and  was  present  before 
the  conrt. 

.  Tlie  judgment  is  reversed  because  the  court  refused  a  new  trial. 
Judgment  reversed. 

Daclaratloni  of  tha  Sarvantt  of  tha  Railread  Campany. — DeclaratioDB  of 
the  railway  Krvunts  when  made  Don  tern  poraneousl;  witb  tha  occiurence  of  the 
injur;  ar;  admiuible  in  evidence  as  part  of  the  rei  gtitiB.  Penna.  R.  c.  Rudel, 
100  II).  603;  s.  c,  6  Am.  ft  Eng.  R.  R.  Cae.,'80;  Hanover  R.  Co.  n.  Corle, 
B5  Pi.  St.  886;  Verry  r.  Burlington,  etc.,  R,  47  Iowa,  540;  Casey  v.  N.  Y., 
etc.,  R.,  78  N.  1.618. 

Declaratiou  made  after  the  bappeDing  of  the  injury  are  not  admisdble 
against  the  railroad.  P.  C,  etc.,  R,  Co.  «.  Wright,  S  Am.  Si  Bng.  B.  B. 
Caa.  628;  Hoore  a.  C.  St.  L.,  etc.,  R.  Co.,  9  Am.  &  Bog.  R.  R.  Cm.  401;  Die- 
trich «.  B.  d;  H.  B.  R.,  68  Md.  847;  s.  c,  11  Am.  &  Eng.  R.  R.  Cas.  115; 
Patteraon  a.  W.  St.  L.  &  F.  R..  54  Mich.  01;  b.  c;  18  Am.  &.  Bng.  R.  B. 
Cm.  180;  Hawk«s  e.  B.  &  O.  R.  Co..  IS  W.  Va.  628;  Chicago,  etc.,  R.  Co. 
a.  Fillmore,  S7  111.  365;  Packet  Co.  a.  Olougb,  20  WaU.  (U.  B.)  638. 

The  dectaratioDB  of  the  engineer  made  upon  the  spot,  at  the  time  of  the 
accident,  and  in  view  of  the  eSecta  of  hia  conduct,  are  evidence  againet  the 
company  as  part  of  the  ret  gala.  Hanover  R.  Co.  a.  Coyle,  56  Fa.  St.  806. 
But  the  admiBsiona  made  by  the  railway  eerraotB  the  next  morning  after  a 
paaaenger'a  baggage  ia  lost,  are  inadmiBBibte.  Uorae  e.  Conn.  River  R.  Co., 
4  Qray  (Haas,),  430.  8o,<  also,  the  subeequent  declarations  of  a  brakeman  as 
to  the  cause  of  an  accident  are  inadmissible.  Michigan,  etc.,  R.  Co.  a.  Car- 
row,  78  111.  848.  Id  Waldele  e.  R.  Co.,  05  N.  Y.  274,  a  witness  was  per- 
mitted to  testify  to  declarationB  made  by  the  deceaaed,  a  deaf  mute,  hj 
means  of  signs,  thirty  minutes  after  the  accident,  to  the  effect  that  there  was 
a  long  train  coming,  etc.     Held,  to  be  error. 

A  brakeman's  admission  that  he  caused  a  railway  accident  is  tuadmisaible 
a«  retgetta  if  his  statement  was  not  made  in  the  execution  of  his  duty  or 
while  the  act  to  which  it  referred  was  in  progress;  nor  can  it  bind  the  rail- 
road company  as  the  admission  of  an  agent  if  it  does  not  appear  that  the  act 
done  waa  in  the  line  of  his  duty.  Fatterson  c.  Wabash,  etc.,  R.,  18  Am.  & 
Eng.  R.  R.  Cas.  180. 

A  switchman  is  incompetent  to  testify  as  to  tbe  declarations  made  to  him 
b;  the  engineer,  immediately  aft«r  an  accident,  as  to  the  manner  of  killing 
and  the  identity  of  the  person  killed.  B.  &  0.  R.  a.  State  of  Hd.,  10  Am. 
&  Eng.  R.  B.  Cas.  88. 

In  Adams  a.  H.  &  St.  J.  R.,  7  Am.  &  Eng.  R.  R.  Cas.  414,  a  witness  was 
allowed  to  testify  that  after  the  deceased  was  struck  and  the  train  was 
stopped,  two  of  the  trainmen,  whom  be  took  to  be  the  fireman  and  engineer, 
came  up,  and  one  of  them  aaid  to  the  other;  "  If  you  had  stopped  the  train 
when  I  told  you,  you  would  not  have  killed  him;"  And  that  the  other  re- 
plied: "It  cannot  be  helped  now;  it  is  too  late."  ^d,  the  admiaaion  of 
this  evidence  waa  error. 

Henry.  J.,  said :  ' '  The  declarations  of  an  agent  are  admissible  as  evidenoe 
against  hia  pnocipal,  only  when  made  while  transacting  the  business  of  the 
principal,  and  as  a  part  of  the  transaction  which  is  the  subject  of  inquiry  in 
the  suit  in  which  they  are  offered.     They  are  then  admitted  as  '  verbal  acts,' 


^d  by  Google 


356  EAST  TENNESSEE,    ETC.,    R.    00.   v.    MALOT. 

ftnd  part  of  the  rtt  geda.  What  be  maj  hare  laid  before  tbe  tnnaactioD  is 
entered  into,  or  after  its  completion,  as  explanatory,  is  no  more  admissible 
than  if  made  bj  a  Btrauger.  Ladd  v.  Coatiae,  8S  Ko.  BIS;  HcDermott  e. 
H.  &  Bt.  J.  R.,  TS  Ho.  016.  'Aoything  in  the  nature  of  narrative  is  by 
be  c&refuily  excluded.'  Bacon  v.  Inhabitanta  of  Charlton,  7  Cush.  586;  and 
in  Lund  e.  Inhabitants  of  Tjngsborough,  S  Cush.  43,  the  some  court  said: 
'There  must  be  a  a  main  or  principsl  fact,  or  transaction,  and  only  such 
declarations  are  sdmisuble  as  grow  out  of  the  principal  transaction,  illus- 
trate its  character,  are  contemporary  with  it,  and  derive  some  decree  of 
credit  from  it.' " 

As  to  the  time  vhen  tbe  declarations  of  Berrants  of  the  railway  cease  to  be 
part  of  the  tm  goto,  see  Andetson  e,  Rome,  etc.,  R.  Co.,  54  N.  T.  834; 
Bellefontaine  R.  Co.  v.  Hunter,  33  Ind.  835 ;  Sims  e.  Hscon,  etc.,  R.,  28  Ga. 
93;  Tanner  v.  L.  &  N.  R.  Co.,  60  Ala.  821 ;  Dietrich  e.  B.  &  H.  6.  R.  Co., 
11  Am.  &  Eng.  R.  R.  Chs.  115. 

Daetaratlons  of  tha'Party  Injured. — The  declarations  of  the  party  iojored 
as  to  the  cause  of  the  injury,  made  at  the  time  of  the  accident,  are  part  of 
tbe  ret  ge^a  and  admissible.  Brownell  «.  F.  R.,  47  Ho.  240;  Perigo  e.  Chi* 
caco,  etc.,  R.  Co.  S5  Iowa,  326-,  Bass  v.  C.  &  N.  W.  R.,  42  Wis.  SG4. 

In  Brownell  v.  Pacific  R.,  4?  Ho.  240,  the  accident  happened  in  conse- 

Sience  of  a  switch  being  left  open  on  defendant's  track.  Immediately  aftw 
e  accident,  when  Brownell  was  restored  to  consciousness,  and  just  before 
be  died,  he  said;  "If  it  had  not  been  for  that  man  who  left  tbe  switch 
open,"     Held,  the  declaration  was  admissible  as  part  of  the  rei  getta. 

Declarations  of  a  party  injured  as  to  tbe  facts  of  an  accident  killing  him, 
which  consist  merely  of  a  narrative  of  a  past  transaction,  ara  not  admissible- 
in  evidence  as  part  of  the  nt  guta.  Waldele  e.  N,  T.,  etc.,  B.,  95  N.  Y, 
276;  8.  c,  19  Am.  &  Eng.  R.  R.  Css.  400  and  note. 

Statements  made  by  the  driver  of  a  vehicle,  injured  at  a  railroad  crossing, 
about  half  an  hour  after  the  accident,  are  not  part  of  the  re*  geKUa.  P.  C.  Sb 
St.  L.  R.  Co.  n.  WrJRht,  6  Am.  &  Eng.  R.  R.  Cas.  638. 

Exclamations  of  Pain. — Exclamations  of  pain  made  by  the  injured  person 
are  admissible  in  evidence  as  part  of  the  rM  g^a^  even  if  made  after  the 
accident.  Houston,  etc.,  R.  o.  ghafer,  54  Tex.  641;  s.  C,  6  Am.  &  Eng.  R. 
R.  Cas.  421 ;  Perkins  e.  C.  R.,  44  N.  H.  223;  Hatteson  e.  N.  Y.  Cent.  R.  35- 
N.  Y.  487. 

In  Houston,  etc.,  R.  e.  Shafer,  6  Am.  &  Eng.  R.  R.  Cas.  431,  a  witness  for 
the  plaintiff  testified,  "that  the  plaintiff  used  often  to  say  after  the  accident, 
'I  must  lie  down,  my  rupture  hurts  me.'"  The  court  said;  "This  evidence 
wsa  admissible  as  original  evidence  tending  to  show  the  bodily  condition  of 
the  plaintiff  at  the  time  that  he  made  use  of  the  expressions  of  pain  and  suf- 
fering.    Whether  they  were  real  or  feigned  was  for  the  jury  to  determine." 

Expreaaions  of  pain  and  suffering  mode  by  a  person  to  the  physicians 
when  they  were  examining  her  after  tbe  accident  for  the  purpose  of  learning 
her  physical  condition,  are  admissible  in  evidence.  Hatteson  e.  N.  Y.  C.  R., 
86  N.  Y.  487.  See,  however,  Q.  R.  &  I.  B.  e.  Huntley,  38  Mich.  687,  where 
it  is  held  that  exclamations  of  pain  are  properly  excluded  from  evidence  in 
an  action  for  personal  injury,  where  they  were  made  at  a  medical  examina- 
tion conducted  after  the  controversy  arose,  for  the  purpose  of  obtaining  tes- 
timony and  not  for  treatment.  Bee,  aUo,  Uurphy  e.  N.  Y.,  etc.,  R.  Co.,  eft 
Barb.  (N.  Y.)  136. 

DjfinE  Declarations. — Dying  declarations,  as  to  the  cause  of  death,  are  in- 
admissible in  an  action  against  a  railroad  company  to  recover  damages  for  the 
death  of  a  person.  They  an  admissible  in  criminal  cases  only.  ]>aily  «. 
N.  Y.  etc.,  R,  SSOonn.  866;  Harsballc.  C.  &  G.  B.  R.,  48  m.  476;  Fried- 


^d  by  Google 


MASTER  AND  SEBVANT — LOEL. 


HiCBIQAN  CkNTBAL  B.   Oo. 

{Advanet  due,  Miehigm.    Jtme  9,  1887.) 

Plaintiff  was  a  bridge  carpeDter  in  defendant's  employ.  While  on  one  of 
defendant's  l^iains,  he  took  by  mistake  a  coat  which  did  not  belong  to  him, 
leaving  his  own.  For  this  offence  he  was  discharged  and  hie  name  pat  upon 
the  list  of  discharged  employees,  which  it  was  customary  to  make  out  and 
send  to  each  agent  of  the  company  authorized  to  employ  men,  the  cause 
for  his  discharge  being  stated  in  such  communication  to  be  for  stealing. 
Plaintiff  therefore  brought  an  action  of  libel  against  the  railroad  company. 
At  the  trial  plaintiff  was  nonauited  on  the  ground  that  the  communication 
was  privileged.  Stld,  that  it  was  error  to  take  the  case  from  the  jury.  Chat 
although  the  communication  was  prima  facui  privileged,  yet  the  evidence  in 
the  case  should  have  been  submitted  to  the  jury  to  determine  whether  defend- 
ant, through  its  agents,  acted  in  good  faith  under  all  the  circumstances  of  the 
-case,  there  being  some  evidence  tending  to  show  that  the  agents  of  the  de- 
fendant were  acting  through  spite  or  reaeDtment. 

Ebbob  to  the  Berrien  circuit  court  to  review  a  jadgmeiit  agtuDst 
tlie  plaintiff  in  an  action  of  libel.     Heversed. 
The  facta  are  stated  in  the  opinion, 
Clapp  <6  Bridgman  for  plaintiffs,  appellant. 
EmDards  <&  SCeu>art  and  Otto  Kirchner  for  defendant,  appellee. 

Champlin,  J. — The  Michigan  Central  R.  Co.  is,  and  for  a  longf 
time  has  been,  engaged  in  operating  a  railroad  extending  from 
Detroit  to  Chicago.  It  employs  agents  at  different  points  on  its 
line  who  bare  the  care  of  divisiona  of  its  road,  and  who  are  aa- 
tborized  to  hire  men  to  work  for  defendant.  It  has  adopted  and 
carried  into  effect  a  plan  by  which  every  employee  who  Ficta. 

is  discharged  from  its  service  is  reported  to  every  agent  author- 
ized to  employ  men  upon  the  line  of  its  road,  regularly  once  a 
month.  A  list  is  made  out  by  the  assistant  superintendent  in 
charge  of  a  division,  in  which  is  entered  the  names  of  the  persons 
discharged  the  previous  month,  their  occupation,  and  cause  ;  and 
this  list  is  sent  to  each  of  the  agents  of  the  company  authorized  to 
employ  men,  and  by  them  these  lists  are  kept  on  file  for  their 
future  reference  and  guidance  in  employing  men.  If  a  person 
who  has  been  discharged  from  the  service  of  the  company  applies 
for  employment,  the  agent  examines  the  Hat ;  and  if  it  there  ap- 
pears that  he  was  discharged  for  some  offence,  he  refuses  to  em- 
ploy him.  The  railroad  company  claims  that  the  plan  adopted  is 
essential  to  the  efficiency  of  the. force  employed  by  it,  and  to  the 


^d  by  Google 


358  BACON  V.    MICHIGAN   CENTRAL   H.    CO, 

protection  of  the  compaoy  and  the  public  against  engaging  in  its 
service  incompetent  or  dishoneet  mrvaats. 

The  plaintiff  is  a  carpenter,  and  has  been  employed  by  the  de- 
fendant for  three  or  four  ^ears  in  the  bridge  department.  He  re- 
sided at  Niles,  a  station  on  the  line  of  defendanfa  road.  He  had 
been  at  work  at  Michigan  CiW,  nnder  a  foreman  by  the  name  of 
Palmer,  and  about  the  14th  of  March,  1882,  and  on  the  evening  of 
that  day  he  entered  the  fast  train  of  defendant  to  ride  to  INileB. 
He  eat  in  the  smoking  car,  which  was  poorly  lighted,  and  he  threw 
hie  overcoat  in  a  seat  near  by.  When  he  reaiSied  Niles,  on  leav- 
ing the  train  in  a  horry,  by  mistake  be  picked  ap  a  coat  wbich 
was  not  his,  and  left  his  own,  and  carried  it  with  nis  tools  to  the 
corapany'e  shop  and  threw  it  aeroaa  a  bench.  The  owner  of  the 
coat,  who  was  at  the  time  in  the  dining  car,  on  returning,  dis- 
covered his  loss  and  reported  it  to  the  condnctor.  The  coat  which 
belonged  to  the  plaintifE  was  fonnd  where  plaiotifF  and  other  em- 
ployees had  been  sitting.  It  waa  an  old  coat,  much  worn,  and 
bad  on  it  a  leather  batton  attached  to  a  string,  Tlie  conductor 
telegraphed  the  chief  train-dispatcher  at  Jackson  that  there  had 
been  a  coat  taken  on  his  train  at  Niles  by  one  of  Mr.  Palmer's 
men,  and  another  left  in  its  place.  The  matter  was  placed  in  the- 
hands  of  a  special  agent  or  detective  of  the  company,  who  sent 
word  to  Mr.  Humphrey,  another  employee  of  the  company,  at 
Niles.  The  next  morning  after  he  received  word  from  the  special 
agent,  he  went  into  the  yard  where  Mr.  Bacon  was  at  work,  and 
asked  him  if  hia  coat  bad  a  leather  button  on  it,  and  he  said  it  had. 
He  then  told  him  he  had  such  a  coat  in  the  baggage  room,  and 
that  he,  Bacon,  had  made  a  mistake  and  got  another  coat.  Bacon 
then  went  over  to  the  bench  where  he  had  left  the  coat  he  had  taken 
from  the  car,  and  handed  it  to  Humphrey,  saying  that  it  was  not 
his,  and  advised  Humphrey  to  send  it  back.  The  coats  were  quite 
dissimilar,  the  plaintitTs  being  a  mnch-wom  chinchilla,  and  thft 
other  a  beaver-cloth  coat,  some  worn,  but  in  good  condition.  The 
special  agent  made  bis  report  to  the  assistant  superintendent,  stat- 
ing that  the  coat  had  been  taken  from  the  tram,  and  that  there 
was  a  big  mistake,  after  seeing  both  coats,  so  much  so  that  he  conid 
not  believe  the  man  honest  wno  had  taken  it ;  and  told  him  "  that 
we  had  enough  to  do  to  watch  professional  thieves  without  watching 
our  own  men,"  He  both  wrote  and  had  a  personal  interview  witu 
the  assistant  superintendent.    He  did  not,  before  he  made  hie  re- 

ort,  go  to  Niles  to  make  examination  in  reference  to  the  case. 

'bis  report  was  based  upon  the  inspection  of  the  two  coats,  and 
what  he  had  learned  from  Mr,  Humphrey  and  the  conductor,  H& 
testified  that  he  believed  what  he  stated  in  bis  report  to  Mr.  Brown, 
the  assistant  superintendent.  A  day  or  two  later  plaintiff  was  die- 
charged,  for  wnich  no  cause  was  assigned  at  the  time.  Mr.  George 
DoUivar  was  the  defendant's  agent  at  Niles,  as  division  road-mas- 


K 


lib,  Google 


HABTEB  AND  SBRVAKT — LIBEL.  859 

ter,  aod  whose  dntv  it  was  to  employ  men.  He  received  one  o{ 
theee  diecturged  liate  in  April,  1882,  for  the  moath  of  Hardi. 
Plaintiff  came  to  him  and  reqneeted  to  see  the  list.  He  showed  it 
to  him.    It  contained,  among  other  namee,  the  following: 

March.  1883. 

Name.  Occupation.  Why  discba^ed. 

Bacon,  John.  Oarpenter.  Stealing. 

Therenpon  the  plaintifE  bronght  this  action  of  libel  against  de- 
fendant. 

The  conrt  charged  the  jury  that  the  commnnication  was  privi- 
leged,  and  the  plaintiff  could  not  recover  without  proving  affirma- 
tivety,  not  only  the  falsehood  of  its  contents,  bnt  alBo  that  it  was 
pabliehed  with  express  malice  ;  and  npon  the  latter  point  he  in- 
Btracted  the  jnry  ttiat  there  was  no  evidence  to  go  to  them,  and  he 
directed  a  verdict  for  the  defendant 

This  charge  of  the  court  raises  the  only  questions  for  our  con- 
sideration,  which  are :   (1)  Was  the  communication  ^onnoH  nm- 
privileged!  and  (2)  Did  the  court  err  in  taking  the  case  """^ 
from  the  jury  on  the  ground  of  an  entire  want  of  evidence  of  ex- 
press  malice  ?  - 

It  is  not  claimed  that  the  commnnication  belongs  to  that  class 
which  are  absolutely  privileged  ;  bnt  connael  for  defendant  con< 
tends  that  it  was  a  publication  which  related  to  a  matter  in  which 
the  defendant  was  interested,  and  concerning  which  the  corpora* 
tion  and  its  officers  to  whom  it  was  sent  must  needs  be  advised  in 
order  to  prosecnte  defendant's  business  successfDlly,  and  therefore 
it  was  prijna  fame  privileged ;  and  to  entitle  plaintiff  to  recover 
he  must  show  that  tne  publication  was  both  false  and  malicions. 

The  great  underlying  principles  upon  which  the  doctrine  of 
privileged  communications  stands  is  public  policy.  This  is  more 
especially  the  case  with  absolnte  privilege,  where  the  in-  Docnun  or 
tereets  and  necessities  of  society  require  that  the  time  "'■■"?" 
and  occasion  of  the  publication  or  utterance,  even  *""■ 
though  it  be  both  false  and  malicious,  shall  protect  the  defamer 
from  all  liability  to  prosecution  for  the  sake  of  the  public  good. 
It  reerto  npon  tne  same  necessity  that  requires  the  individual  to 
surrender  his  personal  riffhts,  and  to  suffer  loss  for  the  benefit  of 
the  common  welfare.  Happily  for  the  citizen,  this  class  of  privi- 
lege is  restricted  to  narrow  and  well-defined  limits.  Qualified 
privilege  exists  in  a  much  larger  number  of  cases.  It  extends  to 
all  communications  made  hmm  fide  upon  any  subject-matter  in 
which  the  party  communicating  nas  an  interest,  or  in  reference  to 
which  he  has  a  duty  to  a  person  having  a  corresponding  interest  or 
duty.  And  the  pnvilege  embraces  cases  where  the  duty  is  not  a 
legal  one,  but  where  it  is  of  a  moral  or  social  character  or  imper- 
fect obligation.  Tornpeon  v.  Dashwood,  L.  K.  11  Q.  B.  Div,  45 ; 
Davies  v.  Snead,  L.  R.  5  Q.  B.  611 ;  "WaUen  v.  Loch,  45  L.  T. 


^d  by  Google 


360  PAOON  V.   MICHIOAN   CENTRAL  B.    00. 

243;  Somerville  v.  Hawtins,  10  C.  B.  583;  s.  c,  20  L.  J.  C.  P. 
131 ;  Toogood  v.  Spjring,  1  C.  M.  &  K.  181 ;  Counriea  Bank  v. 
Henty,  L.  K.  7  App.  741 ;  Delany  v.  Jones,  4  Eep.  193 ;  I^agh- 
ton  V.  The  Bishop,  L.  ^1.  4  P.  C.  495,  504 ;  Harnson  v.  Busb,  5 
El.  &  Bl.  344 ;  B.  c,  25  L.  J.  Q.  B.  25 ;  Wbiteley  v.  Adams,  16 
C.  B.  N.  S.  392 ;  b.  c,  33  L.  J.  C.  P.  89  ;  Shipley  v.  Todhnnter, 
7  C.  &  P.  680;  Harris  v.  Thompson,  13  0.  B.  333;  Wilson  w. 
Robinson,  7  Q.  B.  68 ;  14  L.  J.  Q.  B.  196  ;  Taylor  v.  Hawkins, 

16  Q.  B.  308  ;  20  L.  J.  Q.  B.  313  ;  Manby  v.  Witt,  18  C.  B.  544 ; 
25  L.  J.  C.  P.  294;  Lewis  v.  Chapman,  16  N.  Y.  372;  Henwood 
V.  Harrison,  41  L.  J.  C.  P.  206;  Edwards  v.  Chandler,  14  Mich. 
471;  Washburn  v.  Cook,  3  Denio,  110;  Knowles  v.  Peck,  42 
Conn.  386;  Easley  v.  Moss,  9  Ala.  266;  Van  Wyck  v.  Aspinwall, 

17  N.  T.  190  ;  Cockayne  v.  Hoddiisson,  5  C.  «&  P.  543 ;  McDon- 

fall  V.  Claridge,  1  Camp.  267;  Weatherston  v.  Hawkins,  1  T.  R. 
10.  _ 

The  communication  in  qnestion  here  is  clearly  within  the  pnnci- 
Tmooninniici  pie  of  tlie  cases  above  cited.  It  wiis  made  by  a  pereou 
uasDom.  interested  in  behalf  of  d^endant  company,  and  having 
in  charge  its  affaire  to  a  certain  extent,  to  another  peimin  alike  inter- 
ested in  behalf  of  the  company,  regarding  matters  pertaining  to  his 
datiea  as  an  agent  of  the  company  authorized  to  employ  men. 
Care  was  taken  to  restrict  the  communication  to  the  proper  persons, 
and  also  to  prevent  nndne  publicity.  It  is  not  only  proper,  but  it 
is  of  the  utmost  importance  to  the  company,  and  to  the  pub- 
lic having  business  transactions  with  it,  tiiat  the  servants  employed 
by  it  shall  be  men  of  good  character,  temperate,  :<nd  efficient, 
dorporatione  may  be  liable  for  the  negligence  of  their  employees. 
Not  only  so,  bnt  they  may  be  held  i-esponsible  for  not  engaging 
suitable  servants,  as  well  as  for  continuing  in  tlieir  employment 
unsnitable  servants,  whereby  third  persons  snSer  loss  or  injury 
through  the  want  of  care,  skill,  temperate  habits,  or  honesty  of 
such  servants.  The  plan  adopted  and  pursued  \>v  the  defendant  was 
intended  to  protect  the  company  iigainBt  employment  of  pereons 
whom  it  had  found  to  be  unworthy  or  inetficient,  and'  is  ae  fully 
privileged  as  a  communication  from  one  stockholder  to  another 
respecting  the  employment  of  a  auperiiifendent,  or  from  one 
partner  to  another  respecting  the  employment  of  a  book-keep- 
er, or  from  a  person  interested  in  a  lawsuit  to  another  interested, 
i-especting  the  solicitor  employed.  But  it  is  said  that  it  was  no 
necessary  to  state  the  cause  of  the  discharge  ;  that  the  communica- 
tion wa^  from  a  superior  to  a  subordinate,  and  it  would  have  been 
sufficient  to  state  the  fact  of  the  discharge  without  stigmatizing  the 
plaintifE  as  a  thief.  This  objection  goes  only  to  the  character  of 
the  language  used,  and  not  to  the  occasion.  The  occasion  deter- 
mines tlie  question  of  privilege.  The  language  is  only  proper  to 
be  considered  in  connection  witli  the  question  of  malice.     In  llio 


^d  by  Google 


t\li 


MASTER  AND   SERVANT — UBKL.  361 

discharge  list  pnt  in  evideuce  there  appear  the  nameB  of  thirty  per- 
BOQB  who  were  discharged  In  March,  1883.  Of  these,  bIx  were  dis- 
charged for  dmiikenneBe  and  intemperance,  who  had  been  employed 
as  clerks,  brdkemeo,  switchmen,  and  laborers  ;  others  for  incom- 
petency  and  careleaenesa.  It  1b  in  proof  that  defendant  had  about 
^000  men  in  its  service ;  and  anyone  can  see  that  some  system  is 
necessary  to  prevent  being  imposed  upon  by  persons  unfit  to  be 
engaged  in  snch  important  business  as  operating  a  railroad,  where 
lives  and  property  depend  upon  the  trust  worthiness  of  those  filling 
every  grade  of  employment  down  to  and  including  the  common 
laborer.  The  ruling  of  the  court  as  to  the  privileged  character  of 
the  commnnication  was  correct. 

The  meaning  In  law  of  a  privileged  communication  is  that  it  is 
made  on  such  an  occasion  as  rebuts  the  prima  fads  inference  of 
malicearieing  from  the  publication  of  matter  prejudicial 
to  the  character  of  tiie  plaintiff,  and  throws  upon  him  bctmmiow  ow 
the  o»u«  of  proving  miiiice  in  fact,  but  not  of  proving  jijby to  ™ui- 
it  by  extrinsic  evidence  only.  He  has  still  a  i-iglit  to  re-  orutnoM. 
-"uire  that  the  alleged  libel  itself  shall  be  submitted  to 

le  jury,  that  they  may  judge  whether  there  is  any  evidence  of 
malice  on  the  face  of  it.  Wnghtii.  Woodgate,2C.  M.  &R.'573; 
1  Gale,  329. 

It  was  held  in  Somerville  v.  Hawkins,  10  C.  B.  583,  that,  a 
communication  being  shown  to  be  privileged,  it  lies  npon  the 

{>lainti£E  to  prove  malice  in  fact;  and,  in  order  to  entitle  him  to 
lave  the  question  of  malice  left  to  the  jury,  he  need  not  show  cir- 
onmstancee  necessarily  leading  to  the  conclusion  that  malice  ex- 
isted, or  such  as  are  inconsistent  with  its  nonexistence,  but  they 
must  he  such  as  raise  a  probability  of  malice,  and  be  more  consis- 
tent witli  its  existence  than  its  nonexistence;  and  in  Cooke  v. 
Wildes,  6  £1.  &  El.  329,  it  was  held  that,  if  the  occasion  creates 
eoch  privilege,  but  there  is  evidence  of  express  malice,  either  from 
extrinsic  circnm stances,  or  from  the  language  of  the  libel  itself, 
the  question  of  express  malice  should  be  left  to  the  jury.  In  ac- 
tions for  defamation,  malice  is  an  essentia!  element  in  the  plain titl's 
case.  But  in  these  cases  the  word  "malice"  is  uuderetood  as  hav- 
ing two  significations,— one,  its  ordiuai'y  meaning  of  ill  will  against 
a  person ;  and  tJie  other,  its  legal  signification,  which  is  "a  wrong- 
ful act  done  intentionally,  without  jnst  cause  or  excuse.  Tlieso 
distinctions  have  been  denominated  malice  in  fact  and  malice  in 
law.  The  first  implies  a  desire  and  an  intention  to  injure  ;  the 
latter  is  not  necessarily  inconsistent  with  an  honest  purpose  ;  lint  if 
false  and  defamatory  statements  are  made  concerning  another  with- 
out sufficient  cause  or  excuse,  thoy  are  legally  malicious ;  and  in 
all  ordinary  cases  malice  is  implied  from  the  defamatory  nature 
of  tlie  Btateraencs  and  their  falsity.  The  effect,  therefore,  of  show- 
ing that  the  communication  was  made  upon  a  privileged  occasion 


iiz^dbvCoOglc 


362  AACON  V.    HICHIOAIT   CENTRAL   S.   00. 

iB  prima  ^aeie  to  rebut  the  quality  or  elemontof  malice,  and  casts 
upon  the  plaintiff  the  necessity  o£  showin?  malice  in  fact :  that  is, 
taat  the  defendant  was  actuated  by  ill  wilfin  what  he  did  and  said 
with  a  design  to  canselessly  or  wantonly  injure  the  plaintiS ;  and 
this  malice  in  fact,  resting,  as  it  must,  upon  the  libelons  matter  it* 
self,  and  the  surrounding  circumstances  tending  to  prove  fact  and 
motive,  is  a  question  to  he  determined  by  the  jury.  The  qnestion 
whether  the  occasion  is  anch  as  to  rebut  the  inference  of  malice  if 
the  communication  be  bonajlde  is  one  of  law  for  the  court ;  but 
whether  bona  fides  esists  is  one  of  fact  for  the  jury.  1  Am.  Lead. 
Cas.  5th  ed.  193 ;  Smith  v.  Tonmans,  3  Hill  (S.  Car.),  85 ;  Hart 
V.  Reed,  1  B.  Mon.  166, 169  ;  Gray  v.  Pentland,  4  Serg.  t&  K.  420, 
423 ;  Flitcraf  t  v.  Jenks,  3  Whart.  153. 

Tlie  jury  may  find  the  existence  of  actual  malice  from  the  lan- 
guage of  the  communication  itself  aa  well  as  from  the  extrinsic 
evidence.  Hastings  u.  Lnst,  22  Wend.  410,  431 ;  Coward  v.  Well- 
ington, 7  0.  &  P.  531,  536 ;  Wright  v.  Woodgate,  2  C.  M.  &  R. 
373,  578;  Jackson  u  Hopperton,  16  C.  B.  N.  8.  829. 

I  agree  with  Earle,  CIi  J.,  in  the  case  last  cited  :  "  The  plaintiff 
does  not  sustain  the  burden  of  proof  wliich  is  cast  upon  him  by 
merely  giving  evidence  which  ts  equally  consistent  with  either 
view  of  the  matter  in  issue.  When  the  presumption  of  malice  is 
neutraiized  by  the  circumstances  attending  the  utterance  of  the 
slander  or  the  publication  of  the  libel,  the  plaintiff  must  give 
further  evidence  of  actual  or  express  malice  in  order  to  maintain 
his  action."  Was  there  evidence  liere  which  would  warrant  the 
jnry  in  inferring  that  defendant  acted  from  malicious  motives 
when  charging  that  plaintiff  was  discharged  from  its  employment 
for  "  stealing }"  The  case  is  obscnred  somewhat  from  the  fact 
that  the  defendant  is  a  corporation,  and  its  motives  must  be  Bought 
for  in  the  acta  and  utterances  of  its  agents,  authorized  or  ratihed 
by  the  corporation.  The  communication  itself  charges  a  crime. 
If  made  wantonly ;  if  made  withont  any  reasonable  evidence  of 
its  truth,  or  sbch  evidence  or  circumstances  as  would  lead  an  or- 
dinarily prudent  person  to  believe  its  truth ;  if  the  means  of  in- 
vestigation were  at  hand  and  none  were  made ;  or,  if  investigation 
was  made,  the  extent  of  the  investigation  and  what  transpired, — 
in  short,  all  the  facta  and  circumstances  which  preceded  and  led  up 
to  the  charge  of  stealing  were  proper,  together  with  the  cliarge 
itself,  to  be  submitted  to  the  jury  ;  and,  from  the  whole  evidencei 
it  was  their  province  to  determine,  whether  the  charge  was  made 
through  personal  ill  will  or  a  wanton  disregard  of  tlie  character 
and  rights  of  plaintiff.  To  my  mind  there  was  evidence,  intrinsic 
and  extrinsic,  from  which  the  jury  would  have  been  justified  in 
finding  that  the  defendant  was  actuated  by  malice  in  fact,  or  express 
in:ilioe.  The  intrinsic  evidence  is  fonnd  in  the  charge  itself,  tak- 
ing for  granted  wliat  was  proved, — that  the  exchange  of  coats  was 


^d  by  Google 


MASTER  AND  SBEVANT — LIBEL.  3C3 

a  mistake  caused  by  careleaBneas  or  negligence,  witLont  any  crimi- 
nal intent.  It  was  for  tlie  jury  to  say  that  tlie  circumBtanceawuro 
Bucli  ander  wkich  the  coat  was  taken,  the  information  received  by 
tlie  special  agent,  the  report  made  to  the  aesietant  enperintendent, 
as  to  repel  and  rebut  tlie  honajldee  of  the  defendant's  agents  in 
stating  that  plaintifE  was  discharged  for  stealing.  And  while  I 
tliink  there  was  evidence  tending  to  show  that  the  agents  of  tlie 
defendant  were  acting  through  spite  or  resentment  toward  plain- 
tiff because  lie  had  not  exercised  greater  care  when  taking  the 
wrong  coat  when  leaving  the  car,  yet  I  fully  agree  in  the  remarks 
of  Baron  Parke,  in  Toogood  v.  Spyring,  1  C.  M.  &  K.  193,  that  if 
such  commnni cations  are  fairly  warranted  by  .-Liiy  reasonable  occ:i- 
sion  or  exigency,  and  honestly  made-,  such  communications  are  pro- 
tected  for  the  common  convenience  and  welfare  of  society ;  and 
the  law  has  not  restricted  the  right  to  make  them  within  any  nar- 
row limits.  If  the  agents  of  the  defendant  honestly  believed  that 
the  plaintifE  took  the  coat  in  question,  under  the  circumstances  de- 
tailed to  them,  with  the  intention  of  appropriating  it  to  his  own 
use,  the  defendant  is  protected  in  having  listed  plamtifE  as  having 
been  discharged  for  stealing.  I  think  the  evidence  in  tlie  caso 
shoald  have  been  submitted  to  the  jury  to  determine  whether  de- 
fendant, tlirough  its  agents,  acted  in  good  faith  under  all  the  cir- 
cumstances of  the  case.  Kiinck  v.  Colhv.  46  N.  Y.  427  ;  Brow  v. 
Hathaway,  13  Allen,  239;  Gassett  v.  G-ilhert,  6  Gray,  94  ;  Fowles 
i>.  Bowen,  30  N.  T.  25  ;  Kelly  v.  Partington,  4  Barn.  &  Ad.  700  ; 
24  Eng.  C.  L.  1^. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 

Shkkwood,  J.,  concnrred. 

Campbell,  Cli.  J.;  I  am  not  satisfied  the  libel  was  privileged^ 
and  therefore  concnr  in  reversal. 

MoBSE,  J.:  J  concur  in  the  roversal. 


LlabllKy  of  Corporation!  for  Libal. — The  principal  case  contains  a  verj 

(all  citatiou  of  cases  upon  what  is  and  what  is  not  a  privileRfid  communica- 
tioD.  In  additioa  to  the  authorities  mentioned  a  late  decision  oarefull;  re- 
viewing the  cases  is  Brings  v.  Qarrett,  111  Pa.  St.  404.  A  questioD  of  cor- 
poration law  whii.h  might  have  arisen  incidentally  was  not  brought  up  in  the 
principal  ca«e, — Iiow  far  are  corporations  reaponaible  fur  libel  or  slander  t 
The  establiBhed  doctrine  is  that  a  corfmration  will  be  held  liable  wbvn 
a  libel  is  published  by  its  authority,  SeTeral  cases  have  involved  facta 
more  or  less  similar  to  those  of  the  principal  case.  In  Philadelphia, 
et«.,  B.  Co.,  «.  Quigley,  21  How.  (XT.  S.)  202,  it  was  held  that  the  report 
of  the  directors  respecting  the  conduct  of  the  officers  Und  agents  ,of  a 
corporation  is  a  privilegea  communication,  but  that  this  privilege  doe*s  not 
extend  to  the  preservation  of  the  report,  and  evidence  in  a  book'  for 
distribution  among  the  stockholders  of  the  community.  The  court  observes: 
"The  resnlt  of  the  cases  is,  that  for  acts  dons  by  the  agents  of  n 
corporation,  e\t)\et  \ne(mtractu  or  ex  lUlkto,  in  the  course  of  its  business,  and  of 
their  employment,  the  corporation  is  respnnsible,  bh  an  inilividnal  is  rpspon- 
eible  under  similar  circumstances."     In  Tench  c.  Great  Western   B.  Co.,  82 


^d  by  Google 


364  PALMEB  V.   CniOAGO,   ST.    LOUIS,    ETC.,    B.    00. 

Up.  Can.  Q.  B.  452,  the  libel  wm  the  publicfttion  bj  the  genertl  manager  of 
a  etrntement  that  pluntifl,  k  conductor,  had  been  dismi^ied  for  disboneatlf 
eeadiDg  away  uncsncelted  tickets.  Stld,  that  the  publication  would  have 
been  privileged  if  distributed  only  to  employees,  or  if  put  up  only  in  tho 
company's  private  offices;  but  that  placing  it  in  offices  and  Btation«  open  to 
the  public  WM  not  within  the  privilege.  Bee,  also,  Whitfield  e.  Soutbeasiern 
R  Co.,  El.,  Bl.  &  El.  116.  See,  generally,  as  affinnins  the  liability  of  a  corpo- 
ration in  such  actions.  Bacon  n.  Michigan  Central  R.  Co.  (Hich.  1684),  20 
Am.  &  Eng.  R.  R.  Css.  633;  Miyard  j>.  Firemen's  Fund  Ins.  Co.,  84  Cal.  48; 
fl.  c,  47  Cal.  aOT;  Flour  Machine  Co.  e.  Souder,  08  Os.  64;  Johnson  e.  St. 
Louis  Dispatch  Co.,  3  Ho.  App,  36S;  Boogher  v.  Life  Assoc.,  7S  Ho.  SIS; 
Hewitt  «.  Pioneer  Press  Co.,  28  Minn.  178;  Aldrich  o.  Press  Printing  Co.,  9 
Minn.  188;  Evening  Journal  Assoc.  «.  McDermott,  44  N.  J.  Law,  430;  Sam- 
uels e.  Evening  Hall  Assoc.,  9  Hud  (N.  Y.),  888;  e.  c,  on  appeal,  73  N.  Y.  604; 
VanAemam  v.  McCune,  82  Hun  (N.  Y.),  818 ;  Payne  e.  Western,  etc.,  R.  Co., 
18Le«(Tenn.),  S07;  s.  c,  18  Am.  &Eng.R.  R.  Css.  119;  YtauBs.  Merchants', 
«tc.,  Ins.  Co.,  27  La.  Ann.  869;  Detroit  Daily  Post  Co.  e.  UcAithur,  16 
Hich.  447. 

Punitive  Damogas  in  Such  Cases.— Bee  Samuels  «.  Evening  Hail  Assoc., 
75  N.  Y.  604;  Cleghorn  n.  Hew  York  Central,  etc.,  K  Co..  56  N.  Y.  44;  a. 
«.,  47  N.  Y.  382;  Merrill  e.  Tarifi.  etc.,  Co.,  10  Conn.  884;  Hwnard  e.  Fire- 
meu's  Fund  Ins.  Co.,  84  Cal.  64;  Evening  Journal  Assoc,  v.  UcDermott,  44 
N.  J.  Law,  430. 

Liability  of  Corporations  for  8 lander. —The  authorities  are  not  in  accord  aa 
to  how  far  such  liability  eiisU.  Bee  Horawetz  on  Corp.  (2d  Ed.),  $  727; 
Townshend  on  Slander  and  Libel,  §  26G ;  Odgers  on  Libel  and  Blander  (Am. 
Dd.),  §  868. 


Ohioaoo,  St.  home  .and  PrrrBBiTBOH  R.  Oo. 
(Advanet  due,  Indiana.     Novmnbtr  15,  1887.) 

In  ruling  upon  a  demurrer  to  the  evidence  the  question  for  the  court  ia, 
Does  the  evidence,  considering  only  that  which  is  favorable  to  the  appellant, 
and  yieldiugtofaim  the  full  benefit  of  all  the  reaaonable  Inferences  (or  which 
it  supplies  a  foundation,  entitle  him  to  a  recovery  on  the  cause  of  action 
stated  in  the  comptaintt 

Plaintiff  while  walking  upon  the  track  of  defendant's  rulroad,  a  short 
distance  behind  the  deceased,  hisson,  whose  hearing  was  somewhat  defective, 
saw  an  approaching  train.  At  the  risk  ot  his  safety  he  ran  toward  hia  son, 
endeavoring  to  signal  him  to  leave  the  track.  His  signals  wete  not  observed, 
however,  and  the  train  ran  over  the  son  and  killed  him.  On  the  trial  of  an 
actioD  against  the  company  for  damages  the  father  testified  that  he  did  not 
know  whether  the  engineer  saw  his  signals  or  not;  and  the  engineer,  speak- 
ing as  the  plaintiff's  witness,  testified  positively  that  he  did  not  see  them. 
Betd.- 

1.  That  one  travelling  upon  the  track  of  a  railway,  not  at  the  crossing  of 
a  highway,  and  where  the  railway  company  has  not  licensed  the  public  to 
•make  use  of  its  track  in  a  city  town  or  village,  is  a  trespasser.     It  is  not 


^d  by  Google 


TBESFAIJSEB  ON   TRA.CE — NEOLIOENOE.  365 

enough  ttut  persoos  do  occuionall;  uee  the  track,  to  constitute  a  licenae. 
It  must  app«u'  either  expressly  or  by  clear  implication  that  the  owner  of  ttaa 
track  antborized  them  to  use  it. 

9.  That  where  one  is  a  treapaaaer  no  action  will  lie  against  a  corporatioo 
for  causing  bis  death  unless  the  act  of  its  employees  was  wilful. 

8.  That  the  court  properly  sustained  a  demurrer  to  the  evidence,  as  the 
Jury  would  not  have  been  authorized  to  infer  under  such  testimony  that  tbe 
engineer  saw  the  signals  giTen. 

i.  That  whether  the  train  was  run  at  a  furious  rate  of  speed  or  not  is  im- 
material, unless  there  was  something  making  the  rate  of  speed  evidence  of 
an  intentional  or  willful  act.  The  negligence  of  the  decedent  is  an  impass- 
able barrier  to  a  recovery  of  that  ground. 

5.  That  as  the  theory  of  the  complaint  is  that  the  deceased  was  wrong- 
fally  on  the  track,  and  was  killed  by  an  act  implying  a  willingness  to  inflict 
injury,  the  rejection  of  evidence  tending  to  show  a  permisdve  use  of  the 
track  presents  no  question,  as  it  is  immaterial  to  the  issue  tendered. 

Appeal  from  circuit  court,  Lake  coaatj. 
Wood  <&  Wood  for  appellant. 
iP.  O.  Moea  for  appellee. 

Elliott,  J. — There  is  evidence  showing  theee  facts ;  James  W, 
Palmer,  17  years  of  age,  was  run  over  ana  killed  by  one  of  the  ap- 
pellee's trains  while  walking  along  its  track  not  far  from  »ioi»^ 
a  highway  crossing  in  the  village  of  Leroy.  His  hearing  was  bo 
defective  that  he  could  not  hear  the  rumble  of  an  approaching  train 
if  very  far  off,  but  he  could  hear  the  whistle  of  the  locomotive. 

The  father  of  the  young  man  said  in  the  course  of  his  testimony : 
"  Hooked  npon  top  of  the  grade  and  saw  this  train  coming.  James 
was  walking  right  to  the  track.  I  just  ran  across  the  track  be- 
tween the  main  track  and  the  switch,  and  I  took  oS.  my  hat  and 
signaled  to  him  to  stop.  He  never  saw  the  train.  I  don't  know 
that  the  engineer  saw  rae.  I  ran  to  within  sixty-aix  feet  of  him, 
and  it  wae  to  about  twenty-four  rods  of  where  they  killed  the  boy. 
When  James  went  on  the  track  he  looked  west  and  he  looked  east 
the  same  ascommon.  He  expected  the  western  freight  ti'ain,  likely, 
going  west,  instead  of  this  eastern  extra  passenger.  The  train  was 
dboat  eighty  rods  from  me  when  I  made  the  signals.  I  saw  tho 
boy  was  not  looking  back.  I  took  o£E  my  hat  and  swung  it  for  a 
signal.  I  knew  what  the  signals  are,  as  well  as  they  did,  on  a  rail- 
road track.  I  have  been  on  it  long  enongh.  I  ran  on  swinging 
my  hat  till  they  knocked  me  down,  I  was  tolerably  close  to  the 
boy  myself.  I  ran  ahead  waving  my  liat.  I  aimed  to  run  ahead 
of  the  boy  so  he  would  see  me  and  get  off  the  track.  I  ran  right 
across  tlie  main  track  between  the  switch.  I  ran  toward  the  dot 
between  the  tracks.  I  ran  within  sixty-six  feet  of  the  boy,  and  it 
was  twenty-four  rods  to  where  he  was  strnck  from  where  he  stepped 
on  the  track.  The  engineer  was  on  tlie  south  side  when  the  train 
passed  the  switch.  Bight  where  I  put  up  the  switch  light  the  en- 
gineer yelled  oat.    That  was  within  six  or  eight  or  ten  rods  of  the 


^dbvGooglc 


366  PALMER  V.    CHIOAOO,    ST.    LOUIS,    ETO.,   B.   00. 

liouee.  6;  'yelled  oat,'  I  mean  lie  whistled.  Tliere  was  no 
slackening  of  speed  that  I  conld  see.  When  they  whistled  they 
were  within  aboat  thirty  rods  of  the  boy.  Tlie  train  was  running 
through  the  village  at  pretty  close  to  forty  miles  an  honr.  It 
knocked  ine  from  tiie  track.  The  village  has  about  eeventy-fiye 
inhabitants.  Tliere  are  two  stores  on  the  south  side  of  the  track, 
and  a  liay  barn  on  the  north  side.  It,  the  train,  threw  me  on  the 
ground.  It  was,  I  think,  the  wind  of  the  train  that  did  it."  The 
mother  of  the  desceaeed  testified  that  she  was  standing  in  a  "  shanty 
used  as  a  cook  room  ;"  that  she  saw  her  linsband  running  and  w.iv- 
ing  his  hat,  and  that  he  hallooed  so  load  that  she  beard  him  above 
the  noise  of  the  train.  The  engineer  of  the  train  teGtified  tliat  be 
eaw  tlie  deceased  on  the  track  ;  that  lie  whistled  several  times  to 
warn  him ;  that  he  expected  that  he  would  leave  the  track,  and  that 
he  did  not  know  that  the  deceased  was  deaf.  The  engineer  also 
testified  :  "  I  was  at  the  window  looking  out,  and  had  oeen  most 
if  not  the  entire  time  after  leaving  Crown  Point.  I  saw  two  per- 
sons 00  the  track ;  one  was  some  distance  behind  the  other,  and 
both  were  going  ia  the  same  direction  the  train  was  going.  The 
hindmost  one,  or  tlie  one  nearest  the  train,  got  oS  the  track  aft^r 
I  sounded  the  whistle.  I  could  not  tell  wnether  either  of  them 
was  running  or  not ;  if  he  was  I  did  not  discover  the  fact.  I  did 
not  see  either  of  them  wave  a  bat.  The  trial  court  sustained  the 
appellee's  demurrer  to  the  evidence. 

It  is  important  at  the  outset  to  state  the  principlee  whicli  tho 

court  must  obey  in  considering  a  demurrer  to  evidence, 
S'^ISm:^  fid  tliese  are :  First.  The  court  is  bound  to  accept 
romim^mr.  ^^  ti'io  all  the  factswhich  the  evidence  tends  to  prove, 

and,  as  against  tbo  party  demurring,  to  draw  from  the 
•evideuce  all  such  I'easonable  inferences  as  a  jury  might  draw. 
Willcuts  V.  Northwestern,  etc.,  Co.,  81  Ind.  300,  and  cases  cited  ; 
Hagenbuck  v.  McCIaskey,  Id.  577;  Radcliff  v.  Radford,  96  Ind. 
482;  McLean  v.  EqaitMe,  etc.,  Co.,  100  Ind.  127;  North  British, 
etc.,  Co.  V.  Cnitchneld,  108  Ind.  518.  Second.  If  thei-o  is  a  con- 
flict in  the  evidence,  then  only  snch  evidence  as  is  favorable  to  the 
party  against  whom  the  demurrer  is  directed  can  be  considered, 
and  that  which  is  favorable  to  thedemumngpartyis  deemed  to  be 
witlidrawn.  Fritz  v.  Clark,  80  Ind.  591;  Euddell  «.  Tyner,  87 
Ind.  629 ;  Adams  v.  State,  Id.  673 ;  McLean  v.  Insurance  Co.,  100 
Ind.  127 ;  Lake  Shore,  etc.,  Co.  v.  Foster,  104  Ind.  293. 

The  question,  therefore,  as  the  record  presents  it  to  us,  ia  this : 
Does  the  evidence,  considering  only  that  which  is  favorable  to  the 
appellant,  and  yielding  to  him  the  full  benefit  of  all  the  reaeonable 
inferences  for  which  it  supplies  a  foundation,  entitle  hiiu  to  a  re- 
covery on  'the  cause  of  action  stated  in  the  complaint^  We  have 
restricted  oar  statement  of  the  question  to  saying  that  the  evidence 


^d  by  Google 


TRESPABSEB   ON  TKACK — NEGUaZNOE.  367 

most  bo  such  aa  will  support  the  cause  of  action  declared  on,  lie- 
cause,  even  on  a  demurrer  to  tlie  evidence,  it  is  only  on 
that  cause  of  action  tliat  there  can  be  a  recovery.  Under  DamiXKB  wu 
the  firmly-settled  rule  the  deceased  must  be  regarded  as  wksn  icnoii 
having  been  a  trespasser  on  the  track  of  the  railroad  ^dSSm'^ 
company  at  the  time  of  his  death.  Louisville,  etc.,  Co. 
*.  Ader,  110  Ind.  376;  Railroad  Co.  v.  Mann,  107  Ind.  89  ;  Louis- 
ville, etc.,  Co.  V.  Bryan,  107  Ind,  61;  Louisville,  etc.,  Co.  v.  Schmidt, 
106  Ind.  73;  Chicago,  etc.,  Co.  v.  Hedges,  ;05  Ind.  398;  Terre 
Haute,  etc,  Co,  v.  Q-raham,  95  Ind.  236 ;  Indianapolis,  etc,  Co.  ». 
HcLaren,  62  Ind.  566.  As  he  was  a  trespasser,  no  action  will  lie 
Against  the  corporation  for  cansiughis  death,  unless  the  act  of  its 
etDpIojees  was  wilful.  A  trespasser  cannot  maintain  an  action 
where  the  tort  of  the  defendant  is  nothing  more  than  the  omission 
to  exercise  care  Terre  Haute,  etc., Co,  «,  Graham,  supra;  Penn- 
sylvania Co.  V.  Sinclair,  supra;  Beach,  Keg.  205,  208,  209. 

If,  theti,  this  action  can  be  maintained  it  must  he  on  the  ground 
that  the  wrongful  acts  of  the  employees  of  the  appellee  were  wil- 
ful.    We  regard  the  decision  in  Terre  Haute,  etc.,  Co, 
v.  Gtraham,  95  Ind.  2S6,  as  correctly  declaring  the  general  PI^^weui 
rule  upon  this  subject,  and  we  cannot  depart  from  it.  ~  ~ 


Louisville,  etc,  Co,  v.  Ader,  supra ;   Kailroad  Co.  v. 

Mann,fliM?/'a/  Louisville,  etc,  Co.  «,  Bryan,  *?ip«»y  B ,--„ 

We  have  no  doubt  that  the  case  of  Terre  Haotej  etc.,  Co.  v. 


Graham  is  right  in  asserting  that  an  engineer  of  a  moving  train 


has  a  right  to  presume  until  the  last  moment,  that  a  person  walk- 
ing on  the  track  will  leave  it  in  time  to  avert  danger.  Nor  do  we 
^oubt  that  these  general  rules  were  correctly  applied  in  that  case. 
Pennsylvania,  etc,  Oo.  v.  Sinclair,  62  Ind.  301 ;  Indianapolis,  etc, 
Co.  V.  McLaren,  supra:  Donaldson  v.  Milwaukee,  etc,  Co.,  21 
Minn.  293;  Gaynor  v.  Old  Colony,  etc,  Co.,  100  Mass,  208;  Mor- 
rissey  v.  Eastern,  etc,  Co,,  126  Mass.  377;  Mason  v.  Railway  Co,,  27 
Kan.  83,  41  Amer.  Rep,  405;  Rothe  w.  Milwaukee,  etc,  Co.,  31 
Wis.  256;  Harty  v.  Central,  etc.,  Co.,  42  N.  T.  468;  Lake  Shore, 
etc,  Co.  V.  Miller,  25  Mich.  279.  But,  while  we  fully  affirm  the 
doctrine  of  the  case  referred  to,  we  cannot  regard  it  as  decisive  of 
this  case,  ddou  the  theory  on  which  the  appellant's  argument  pro- 
ceeds. It  18  oi:r  judgment  that  there  maybe  a  wilful  act  in  a  legal 
sense  without  a  formal  and  direct  intention  to  kill  or  wound  any 
particular  person.  There  may,  in  other  words,  be  a  constructive  or 
an  implied  intent  without  an  express  one.  To  nse  an  illustration 
supplied  by  one  of  the  members  of  the  court  in  consulation  :  sup- 
pose that  a  warning  signal  is  given  an  engineer,  clearly  conveying 
to  bis  mind  that  there  is  danger  ahead,  that  he  sees  tiie  signal  of 
warning,  and,  regardless  of  the  warning  thus  given,  he  keeps  his  ' 
engine  in  motion,  and  mns  upon  a  biidge  weakened  by  flood  or 
fire,  woald  there  not  be  wilfulness  in  a  le^  sense,  although  there 


^d  by  Google 


368  PALMEB  V.    CHICAGO,    ST.    LOUIS,   ETC.,   E.   CO. 

was  nothing  moi-e  than  a  wilful  disregard  of  danger  {  Or,  to  take 
another  illuEtratioii,BQppoBe  an  engineer  sees  two  men  on  the  track, 
and  sees  one  of  tliem  making  signalB  to  the  otlier  to  leave  it,  wonld 
it  not  be  wilfnlnees  to  run  upon  the  man  to  whom  the  signals  wer& 
made  without  any  effort  to  cheek  the  train  1  Of  course,  without 
SQch  signals,  or  something  of  a  warning  nature,  to  attract  the  atten- 
tion of  the  engineer,  he  would  have  a  right  to  presume  that  the  man 
wonld  leave  the  track,  bat  to  keep  on  in  disregard  of  signals  of  warn- 
ing seen  hy  him  is  a  very  difEerent  thing  from  proceeding  where  there 
is  notliing  to  arouse  attention,  and  create  a  b^ief  that  there  is  reason 
why  tiie  train  should  be  brought  to  a  halt.  Once  again,  to  illus- 
trate, suppose  a  man  is  on  the  track,  in  reality  fastened  there,  but,  in 
appearance,  at  full  liberty  to  leave  it  at  will,  this  appearance  would 
justify  tlie  engineer  in  presuming  that  he  would  step  from  it  in 
time  to  escape  danger,  and  there  wonld  not  be  wilfulness  in  run- 
ning upon  him  ;  but  if  the  fact  be  added  to  this  snpposed  case  that 
a  thifd  person  was  seen  by  the  engineer  endeavoring  to  warn  the 
man  off  the  track,  orsignaling  for  the  train  to  stop,  would  it  not,  in 
legal  contemplation,  be  a  wilful  act  to  keep  the  train  in  motion 
without  any  effort  at  all  to  bring  it  to  a  stop !  It  seems  to  us  that 
these  examples  show  that  there  may  be  cases  where  there  would  be 
wilfnlnesB,  although  there  was  no  direct  or  positive  intention  or 
design  to  inflict  iiijnry. 

The  authorities  from  the  earliest  years  of  the  common  law 
recognized  the  rule  that  there  may  be  a  wilful  wrong  without  a 
direct  design  to  do  harm.  This  principle  haa  been  applied  to 
furious  driving,  to  collisions  between  vessels,  to  the  taking  of  un- 
ruly animals  into  crowds,  to  carelessly  laying  out  poison  for  rats, 
to  the  want  of  caution  toward  drunken  persons,  and  to  the  careless 
carting  of  logs,  and  the  like,  upon  highways.  1  Hale,  P.  C.  (Amer. 
Ed.)  476,  and  authorities  note  4 ;  1  Bl.  Comm.  182.  Dr.  Wharton 
gives  full  recognition  to  this  principle,  and  shows  its  application  to 
railroads.  Whart.  Horn.  §§  80,  87,  94, 155.  Mr.  Bishop  very  ful- 
ly and  ably  discusses  the  question,  and  cites  many  authorities.  In 
the  course  of  his  discussion  he  says ;  "  There  is  little  distinction, 
except  in  degree,  between  a  positive  will  to  do  wrong,  and  an 
indinerence  whether  wrong  is  done  or  not.  Therefore,  carelessneee 
is  criminal,  and,  within  limits,  supplies  the  place  of  the  direct 
intent."  1  Crim.  Law,  c  20.  In  another  place  this  author  saye : 
"  If  a  man  neglects  to  learn  what  will  be  the  probable  consequences 
of  his  act,  and  so  proceeds  rashly,  the  doctrine  of  carelesenesB 
already  discussed  applies,  and  he  is  not  excused."  Id.  §  324. 
These  authorities  declare  and  illustrate  a  fundamental  principle  of 
the  criminal  law  long  established  and  long  maintained  without  dis- 
sent, and  we  cannot  affirm  that  where  the  question  is  one  of  mere 
civil  liability  a  more  lenient  rule  prevaib  in  favor  of  the  wrong- 


ed by  Google 


TRESPASSEtl  ON  TBACK — NEGLIGENCE.  869 

doer.  Kor  do  the  decided  cases  jaatiiy  the  conclnBion  that  a  more 
favorable  rule  prevails  iD  civil  eases. 

Jadffe  Cooley  thus  states  the  general  rale  :  "  Where  the  eon- 
dact  or  the  defeodaDt  is  wanton  and  wilful,  or  where  it  indicates 
that  iDdiSerence  to  the  rights  of  others  whicli  may  be  justljr 
characterized  as  recklessness,  the  doctrine  of  contributory  negli- 
gence has  no  place  whatever,  and  the  defendant  is  responsible  for 
the  .injury  he  inflicts,  irrespective  of  the  fault  which  placed  the 

filaintiS  in  the  way  of  such  injnry.  The  fact  that  one  has  carelesB- 
y  put  himself  in  a  place  of  danger  is  never  an  excuse  for  another 
purposely  or  recklessly  injuring  him.  Even  the  criminal  is  not 
out  of  tiie  protection  of  the  law."    Cooley,  Torts,  674. 

Mr.  Beach  aays  :  "  It  is  a.  general  rule  that  where  the  defendant's 
negligence  is  wilf  d1,  contributory  negligence  is  not  a  defence,  and 
aecoraingly  it  is  held  that  a  mere  technical  trespass  is  not  such  an 
ofFence  as  will  deprive  the  trespasser  of  his  right  to  recover  dama- 
ges for  an  itijnry  which  he  siiSere  throngh  tue  wilful  negligence 
of  another."  Beach.  Neg.  53,  At  anotlfer  place  this  author  snows 
that  the  term  "  wilful  negligence"  is  an  inapt  one,  and  takes  sub- 
stantially the  same  view  as  that  adopted  in  Terre  Haute,  etc.,  Co. 
V.  Q-raham,  saying  that  "  wilful  negligence  means  a  failure  to 
perform  a  manifest  duty,  in  reckless  disregard  of  consequences  as 
affecting  the  life  or  property  of  another."     Id.  67. 

The  general  principle  asserted  by  the  text  writers  to  whom  we 
have  referred  is  thus  given  expression  in  a  work  on  railways: 
"The  company  has  no  right  to  inflict  wanton  injury  on  persons 
who  are  unlawfully  on  its  location,  and  where  life  and  limb  are 
concerned  the  injury  may  well  be  treated  as  wanton,  subjecting 
the  company  to  damages,  when,  although  able  to  do  so,  they  neglect 
to  arrest  the  engine  which  they  have  good  reason  to  believe  will, 
without  an  effort  to  stop  it,  result  in  injnry  to  the  wrongdoer. 
A  wrong-  doer  is  not  necessarily  an  ontlaw  as  to  his  property,  still 
less  aa  to  bis  person."  Pierce,  R.  E.  330.  It  is  probably  true  that 
the  word  wanton  does  not  correctly  express  the  meaning  of  the  cases, 
but  taken  in  connection  with  the  context  there  can  be  no  doubt  as 
to  the  author's  meaning,  and  that  his  statement  of  the  rule  is  well 
supported  by  the  authorities. 

In  Donahoe  v.  Wabash,  etc.,  Co.,  83  Mo.  563,  the  principle  as- 
serted by  the  authors  to  whom  we  have  referred  was  enforced  in  a 
case  not  unlike  the  present.  In  that  case  a  child  wandered  upon 
the  track  and  was  killed.  It  was  said  bv  the  mother  in  the  course 
of  her  testimony  that,  "  I  made  for  my  cnild  as  hard  as  I  could  run, 
with  bauds  up  and  screaming.  I  ran  as  fast  as  I  conld."  The 
company  was  neld  liable,  because  there  was  a  recklessness  that  oon- 
stitated  something  more  than  mere  negligence.  Our  own  cases 
recognize  the  doctrine  that  a  reckless  disregard  of  conaeqoences 
may  be  so  great  as  to  imply  a  willingness  to  inflict  an  injnry.  In 
81  A..  &E.  K.  Gu.-d4 


^d  by  Google 


370  PALMEB  V.   CHICAGO,    ST.    LOOIS,   ETC.,   E.   00. 

PeDnsyWaDia  Co.  v.  Sinclair,  62  Ind.  301,  it  was  sud :  "  "Where 
an  iDteation  to  commHan  iniuryexiBta,  whether  the  iDteDtion  be 
actaal  or  constrnctive  only,  the  wrongful  act  ceases  to  be  a  merely 
negligent  injury,  and  becomes  one  of  violence  or  aggreeeion. 
This  IB  a  recognition  of  the  doctrine  of  the  ancient  authoFities  to 
wliieh  we  have  referred,  for  tliey  aesert  the  distinction  between  an 
actual  and  an  implied  or  «0Dstructive  intention.  "  To  constitute  a 
wilful  injury,"  said  the  court,  in  LoniBville,  etc.,  Co,  v.  Bryan, 
107  Ind.  61,  "  the  act  which  produced  it  most  have  been  intention- 
al, or  mast  have  been  done  under  snch  circumstances  as  evinced  a 
reckless  disregard  for  the  safety  of  others,  and  a  willingness  to 
inflict  the  injury  complained  of.  In  the  Belt,  etc.,  Co.  v.  Mann, 
107  Ind.  89,  it  was  said :  "  It  is  beyond  question  tliat  to  entitle 
one  to  recover  for  an  injury  to  which  his  own  negligence  may 
have  contributed,  the  injurious  act  or  omission  must  bave  been 
purposely  and  intentionally  committed  with  a  design  to  produce 
injury,  or  it  must  have  been  committed  under  such  circnmstances 
as  that  its  natural  and  reasonable  consequences  would  be  to  pro- 
duce injury  to  others.  There  must  have  been  either  an  actual  or 
oonstmctive  intent  to  commit  the  injury."  Similar  language  is 
used  in,  Looisviilcetc.  Co.  u  Ader,  llOlnd.  376.  These  last  cases 
distinctly  recognize  the  rule  that  direct  and  positive  intent  is  not 
always  requisite  to  constitute  a  wilful  act.  If  it  were  not  so,  what 
is  said  about  a  reckless  disregard  of  probable  consequences,  and  a 
constructive  intention,  would  be  meaningless.  In  Cincinnati,  etc., 
Co.  V.  Eaton,  63  Ind.  307,  Wordeii,  J.,  speaking  for  the  eonrt,  said : 
"  As  amatter  of  evidence,  proof  that  the  misconduct  of  the  defend- 
ant was  such  as  to  evince  an  utter  disregard  of  consequences,  so  as 
to  imply  a  willingness  to  inflict  the  injury  complained  of,  may  tend 
to  establish  wilfulness  on  the  part  of  the  defendant"  The  general 
subject  was  thoroughly  discussed  in  Carter  v.  Lonisville,  etc..  Co., 
98  Ind.  653,  and  it  was  said  that  "  a  trespasser  was  not  an  outlaw," 
and  that  reckless  aggression  is  not  an  act  of  mere  negligence,  hut  is 
an  "act  evincing  a  wanton  indifference  to  consequencee,  and  will- 
ingness to  inflict  an  injury."  In  Indianapolis,  etc.,  Co.  v.  Mc- 
Brown,  46  Ind.  229,  horses  were  pursued  by  a  train,  driven  into  a 
deep  cut,  and  forced  to  leap  a  trestle,  work ;  and  the  court  said  : 
"Tne  pursuing  them  into  the  cut,  and  forcing  them  to  attempt  a 
dangerous  leap  manifested  a  reckless  disregard  of  human  life,  ami 
the  safety  of  the  property  of  the  citizen.  The  allegations  of  the 
complaint  make  out  a  plain  and  clear  case  of  wilful  negligence. 
The  injury  was  intentionally  and  wilfully  committed."  It  is  prob- 
ably true  that  the  language  quoted  is  subject  to  verbal  criticism 
in  this,  that  the  term  wilful  negligence  is  not  an  appropriate  one, 
but  this  misuse  of  words  does  not  materially  affect  the  decision. 
We  think  it  clear  from  these  cases  that  it  may  be  safely  affirmed 
that  it  has  never  been  denied  by  this  court  that  there  may  be  a 


^d  by  Google 


TRESPAS8EE  ON  TRACK — NEGLIGENCE.  371 

■wrong  80  great  as  to  entitle  a  trespasser  to  recover,  althoqgh  there 
may  be  no  direct  or  actual  intent  to  inflict  an  injury.  The  decision 
in  Terre  Haute,  etc.,  Co.  v.  Graham  does  not  decide  that  a  direct 
or  positive  intention  ie  neceesary  to  constitute  wilfalueBS,  and 
nothing  we  here  decide  conflicts  with  that  decision. 

We  agree  with  appellant's  counsel  that  if  two  men  are  seen  on  a 
track  in  front  of  the  train,  and  one  of  them  risks  his  safety  in  the 
efEort  to  signal  the  foremost  man  to  leave  the  track,  that  the  engineer 
who  sees  the  signal  is  guilty  of  a  wilful  wrong  if  he  does  not 
use  ordinary  care  to  stop  the  train.  Pushing  on  in  utter  disregard 
of  such  warning  signals  is  eometbing  more  than  negligence;  it  is 
wilfulness.  It  passes  beyond  a  mere  omission  of  duty,  and  becomes 
a  positive  wrong.  The  fact  that  signals  indicating  peril  are  given, 
and  are  seen  by  the  engineer,  plainly  distiuguishes  the  case  from 
the  class  of  ca.tes  represented  by  Terre  Haute,  ete.,  Co.  v.  Graham. 
Proceeding  in  defiance  of  such  signals  creates  the  constructive  in- 
tention ot  which  our  cases  speak,  and  makes  the  conduct  of  the 
wrong-doer  wilful..  Such  an  act  is  not  simply  negligeuce ;  it  is  a 
wrong  implying  a  willingness  to  inflict  an  injury. 

-Wliile  we  agiee  with  appellimt's  counsel  upon  the  legal  propo- 
sition as  we  nave  stated  it,  we  cannot  agree  in  their 
inference  of  fact,  for  we  cannot  assent  to  the  conclusion  £S  'nn^Km 
that  a  jury  might  have  inferred  that  the  engineer  saw  Si'si^IISS?™ 
the  signals  given  by  the  father  of  the  deceased.  In  the 
face  of  liis  positive  statement  that  he  did  not  see  them  this  would 
be  a  forced  and  violent  inference,  and  ancii  inferences  are  forbid- 
den. Lake  Sliore,  etc.,  Co.  v.  Foster,  gupra.  There  is  no  conflict 
of  evidence,  for  the  father  testihes  that  he  does  not  know  whether 
the  engineer  saw  his  signals  or  not,  and  the  engineer,  speaking  as 
the  appellant's  witness,  positively  testifies  that  he  did  not  see  them. 
We  do  not  believe  that  the  appellant  has  a  right  to  ask  tlie  court 
to  discredit  his  own  witness  in  a  case  like  this  where  there  is  really 
no  contradiction.  If  the  appellant  had  not  introduced  the  testi- 
mony of  the  engineer  it  miglit,  perhaps,  have  been  inferred  that 
the  engineer  did  ace  the  signals,  but  the  testimony  was  adduced 
by  tlie  appellant,  and  must  prevail,  because  it  is  not  contradicted. 
Wliere  there  is  no  contradictory  evidence,  and  ttie  testimony  is  not 
plainly  improbable,  it  cannot  be  disregai-ded.  We  think  the  fact 
that  the  engineer  so  positively  testifies  tiiat  he  did  not  see  the  sig- 
nals is  fatal  to  the  appellant's  position  upon  tliis  branch  of  the  case. 

It  matters  not  that  the  appellee's  employees  were  negligent  in 
running  the  train ;  the  negligence  of  the  deceased  is  an 
impassable  barrier  to  a  recovery  on  that  ground.  Whether  ^™Ki°a^la^ 
the  train  was  run  at  a  furious  rate  of  speed  or  not  is  ™™»>cb" 
immaterial,  unless  there  was  something  making  the  rate  S!?krJSSS5S 
of  speed  evidence  of  an  intentional  or  wilful  act.  This 
is  beyond  controversy,  and  it  cannot  be  necessary  at  this  day  to 


^d  by  Google 


373  PALMER  V.   CHICAGO,    8T.    LOUIS,    ETC.,    E.    00. 

cite  authoritieB.  The  Illinois  rule  ie  not,  and  never  has  been  rec- 
Offnized  in  this  State,  From  first  to  last  our  cases  have  opposed 
the  doctrine  of  comparatiTe  negligence.  Where  a  recovery  is 
sought  for  an  injury  caused  by  negligence,  the  plaintiff  must 
establish  a  case  of  unmixed  negligeuue,  or  he  will  fail.  Decisions 
applicable  to  injuries  received  on  a  highway  crossing  do  not  apply 
to  such  a  case  as  this,  for  both  the  traveller  aud  the  railroad  com- 
pany have  a  right  to  use  the  crossing,  bnt  the  traveller  has  no  right 
to  use  the  track  of  the  company  at  a  place  where  there  is  no  high- 
way or  crossing.  The  duty  which  the  company  owes  to  a  traveller 
on  a  crossing  or  a  highway  is  essentially  different  from  the  duty  it 
owes  to  one  trespassing  on  its  track.     In  the  one  case  there  is  a 

ritive  duty;    in  the  otlier  a  mere  native  dnty  not  to  wilfully 
him  liarm.     Louisville,  etc.,  Co.  v.  Phillip,  13  N.  E.  Eep.  132; 
Gaynor  v.  Rarilway  Co.,  »Kpra. 

If  the  place  where  ^tlie  appellant's  intestate  was  walking  at  the 
PiHoii  u-  time  he  was  struck  was  generally  used  by  the  public 
SSS"  MOT™  with  the  permission  of  the  appelleej  then  he  cannot  be 
lKST*"™wn-  regarded  as  a  trespasser.  Louisville,  etc.,  Co,  v.  Phil- 
nrm  ucdh.  jjpg^  gufTa.  Wliere  a  railroad  company  licenses  the 
public  to  make  use  of  its  track,  in  a  city,  town,  orvijlage,  it  cannot 
treat  one  who  avails  himself  of  the  license  as  a  trespasser.  But  it 
is  not  enongh  that  persons  do  occasionally  use  the  track,  for,  to 
constitute  a  license,  it  must  appear,  either  expressly  or  by  clear 
implication,  that  the  owner  of  tlie  track  authorized  them  to  use  it. 
We  think  the  evidence  in  this  case  does  not  establish  a  license.  If^ 
however,  we  were  wrong  in  this,  still  the  appellant  cannot  success- 
fully complain  of  the  action  of  the  trial  court  in  sustaining  the 
demurrer.  This  is  so,  because  the  theory  of  the  complaint  is  that 
the  deceased  was  on  the  track  of  the  company  some  distance  from 
a  public  crossing,  and  there  is  no  averment  that  the  public  was 
licensed  to  use  flie  place  where  he  was  killed.  The  complaint  is 
founded  solely  on  the  theory  that  the  act  of  the  appellee  was  a  will- 
ful wrong,  and  not  on  the  ground  that  the  deceased  was  on  a  part 
of  the  track  which  the  company  had  licensed  the  public  to  travel 
over.  If  the  complaint  had  shown  that  the  deceased  was  where  he 
might  be  without  becoming  a  trespasser,  a  very  different  case 
would  be  presented.  The  theory  of  the  complaint,  however,  ia 
clearly  that  the  deceased  was  wrongfully  on  the  track,  and  was 
killed  by  an  act  implying  a  willingness  to  inflict  the  injury.  On 
this  theory  the  appellant  must  recover,  or  not  recover  at  all.  Mes- 
call  V.  Tnlly,  91  lud.  96,  and  cases  cited ;  Green  v.  Groves,  10& 
Ind.  519,  and  cases  cited;  Bank  v.  Boot,  107  Ind.  234. 

Where  evidence  is  incorporated,  as  it  must  be,  in  the  demurrer, 
the  only  question  presented,  as  we  are  inclined  to  think,  is  the 
sufficiency  of  the  evidence  to  sustain  a  right  of  action,  and  that  ex- 
ceptioDS  to  the  rulings  in  rejecting  or  receiving  evidence  are  not 


^dbvGooglc 


TRESl-ASSEE  ON  TEACK— NEQtlGENCB.  373 

presented,  but  that  to  present  such  exceptione  there  must  be  a 
proper  bill  of  exceptions.  If,  however,  tlie  question  on  these  rul- 
ings can  be  regarded  as  properly  before  ns,  the  appellant  cannot 
have  a  reversal,  becanse  the  rejected  evidence,  so  far  as  it  was 
material,  bears  entirely  npon  the  question  of  a  permissive  nse  of 
the  track,  and  was  not,  as  appeara  from  what  we  have  already  eaid, 
relevant  to  the  issue  tendered  by  the  complaint. 
Judgment  affirmed. 

Injury  to  Pem 
AmounU  to  License. — See  McLaren  s.  IcdiaDapolis 
Eog.  R.  R.  Cm.  217;  Yarnall  e.  St.  Louis,  etc..  R.  Co.,  10  lb.  726;  Davis  v. 
Chicago,  etc.,  R.  Co.,  and  note,  IS  lb.  434-43S;  Eogan  n.  Chicago,  etc.,  B. 
Co.,  and  note,  15  lb.  430-446;  Central  B.  Co.,  e.  BiinsoD,  and  note,  10  lb.  43- 
78;  Baltimore,  etc.,  H.  Co.,  v.  Btate,  IB  lb.  83;  Hoppe  ».  Chicago,  etc.,  R. 
Co.,  and  note.  19  lb.  74-83;  Baltimore  A  0.  R.  Co.  e.  Btate,  19  lb.  88-00. 

Qeneral  Rule— Duty  of  Railroad  Company  to  Treipattert. — A  railn a j  com- 
pany ha.1  exclusive  right  tu  nccii{n.  uat;  and  eujoj  its  railnaj  tracks,  trestle- 
work  and  bridges,  and  such  exclusive  right  is  absolutely  neceBsary  to  enable 
it  properly  to  perform  its  duties;  and  an;  person  walking  upon  a  track  or 
bridge  without  the  company's  consent  is  a  trespasser,  and  iu  case  of  injury  to 
Bucli  person  from  company's  cars,  he  is  without  remedy  unless  it  is  shown  by 
affirmative  evidence  that  the  injuries  resulted  from  negligence  so  gross  as  to 
amount  to  wantoness.  Mason  v.  Miaaouri,  etc.,  R.  Co.,  6  Am.  &  ^ng.  R.  R. 
Cas.  1.  See,  generally,  Padncah,  etc.,  R.  Co.  v.  Letcer.  13  Am.  AEng.  B, 
R.  Cas.  «1;  Carters,  Columbia,  etc.,  R.  Co.,  10  Am.  ASng.  R.  R,  Cas.  414; 
Nashville,  etc.,  R.  Co.  ^.  Smith.  15  Am.  &  Eng.  R.  R.  Cas. 460;  Cent.  R.  Co. 
«.  BriosOD,  10  Am.  &  Eng.  R.  R.  Cas.  42;  Wnght  f.  Railroad  Co.,  28  Am. 
&  Eng.  R.  B.  Cas.  682;  Louisville,  etc.,  R.  Co.  e.  Yniestra,  89  Am.  &  Eng, 
R.  R.  Co.  207. 

Where  a  boy  while  walking  on  the  track  caught  his  foot  in  a  switch  and 
was  injured,  it  was  held,  that  if  the  servants  of  the  company  after  becoming 
aware  of  the  boy's  danger,  could  by  exercise  of  reasonable  care,  have  pre- 
vented the  injury,  the  company  was  liable.  Burtrett  e.  Burlington,  etc.,  R. 
Co.,  IB  Am.  &  Eng.  R.  R.  Cas.  25. 

Company  is  liable  even  to  trespassers  OD  track  for  injuries  which  could 
have  been  avoided  by  exercise  of  ordinary  care,  but  contributorv  negligence 
goes  in  mitigatiou  of  damages.  East  Tenn.,  etc.,  R.  Co.  o.  Pain,  IB  Am. 
■&  Eug.  R.  R.  Cas.  102. 

A  railroad  is  not  liable  for  the  killing  of  a  farmer  who  got  upon  the  track 
to  drive  oS  his  stock  and.  failed  to  get  out  of  the  way  of  an  approaching 
train  in  time.  Schittenhelm  c.  Louisville,  etc.,  R.  Co.,  19  Am.  &  Eng.  R. 
R  Cas.  111. 

A  railroad  company  is  under  no  obligation  to  locate  its  tracks  and  adjust 
the  running  of  its  trains  with  reference  to  the  safety  of  persons  unlawfully 
-on  its  right  of  way ;  nor  t«  fence  its  tracks  against  trespassers.  Nolan  v.  New 
York,  etc.,  R.  Co.,  25  Am.  &  Eng.  R.  R.  Cas.  U2. 

Persons  in  charge  of  a  railroad  train  are  not  bound  to  keep  a  lookout  for 
trespassers  on  the  track.  They  are  not  bound  to  auticipate  such  intrusion, 
and  are  not  liable  for  an  injury  occurring  without  their  knowledge  in  con- 
sequence. The  liability  of  the  company  in  such  case  is  only  measured  by  the 
conduct  of  its  employees  after  they  become  aware  of  the  trespasser,  and  con- 
tributory negligence  will  on  his  part,  even  in  the  event  of  misconduct  by  its 
emplojees  after  discovering  his  position,  defeat  recovery.  Pcrflons  in  charge 
of  a  train  seeing  an  adult  upon  the  track  are  entitled  to  presume  that  he  will 


^d  by  Google 


374  PALMEE  ».   ClliCAGO,    ST.   LOiaS,    ETC.,    E.   00. 

leare  the  same  before  he  is  run  over.  Tetre  Hkute,  etc.,  R.  Co.  t.  Gnilmm, 
12  Am.  *  Bng,  R.  R.  Gas.  77.  See,  generally,  LoiUBville,  etc.,  R.  Co.  e.  WsU 
kins,  12  A.m.  &  Eii^.  K.  R.  Cos.  89;  McAlliater  o.  Burlington,  etc.,  R.  Co., 
IS  Am.  &  Eng.  R.  R.  Cas.  108;  Scheffler  e.  Minaeapolif,  etc.,  R.  Co.,  IS  Am. 
&  Sag.  R.  R.  Cas.  178;  Rine  r.  Chicago,  etc.,  R.  Co.,  35  Am.  &  Eng.  R.  R. 
Cas.  545;   Chicago,   etc.,   It.  Cn.  x.  Hedges,  25  Am.  &  Eng.  R.  R.  Caa.  550. 

Duty  to  Trespaueri— At  to  Slgnali. — If  persoDB  travelTicg  on  a  railroad 
track  are  seen  in  time  to  avoid  danger  by  rinpng  a  bell,  sounding  a  whistle. 
Blowing  down,  or  stopping  the  train,  it  is  the  duty  of  the  officers  of  the  train 
to  resort  to  such  muaas  to  prevent  injury  to  the  life  or  limbs  even  of  tres- 
passers on  the  road;  and  where  plaintifl  wan  killed  on  a  trestle  bridge  at  a 
ravine  about  a  mile  from  the  station  by  &  train  running  at  the  customary  f>peed 
and  without  sounding  a  wbistle  at  a  portion  of  the  road,  not  approacliing  a 
crossing  or  place  of  public  passage,  defendant,  being  without  fault,  is  not 
liable,  no  duty  being  imposed  on  an  engineer  to  sound  a  whistle  in  the  law- 
ful use  of  the  railroad,  except  in  approaching  erodings  or  other  places  of 
Sublic  passage,  or  in  coming  to  stations  or  into  towns  or  cities.  Teunen- 
roook  B,  Southern  Pac.,  etc.,  R.  Co.,  8  Am.  &  Bng,  R.  R.  Cas.  6;  Shackle- 
ford  V.  Louisville,  etc,  R  Co.,  S8  Am.  &  Esg.  R.  R,  Cas.  59,  and  note. 

While  crossing  a  railroad  track  a  peieon  was  killed  bj  a  train  which  left 
the  station  on  schedule  time  and  attained  a  speed  of  twenty  miles  an  hour; 
deceased  was  working  in  a  steam  mill  near  the  track;  and  was  first  seen  by 
the  engineer  when  about  100  feet  from  the  engine  and  making  no  effort  to 
get  out  of  the  way;  engineer  put  on  brakes  and  shut  oB  steam  but  gave  no 
signal  by  bell  or  whistle.  Mdd,  that  the  contributory  negligence  of  the  de- 
ceased relieved  the  company  of  responsibility.  Parker  v.  Wilmingtion,  etc, 
R.  Co.,  8  Am.  &  Eng.  R.  R,  Cas.  430. 

The  going  of  the  plaintiff  from  railroad  track,  knowing  that  a  train  would 
presently  approach,  and  stepping  from  the  track  on  licnring  the  whistle, 
and  crossing  to  the  next  track,  where  she  was  struck  by  a  car  slipped  off 
from  the  train,  and  in  the  act  of  making  what  is  called  a  flying  switch, 
WAS  without  right,  and  such  negligence,  that,  but  for  it  the  misfortune  to 
her  could  not  have  happened,  having  been  warned  by  the  brakeman  on  the 
detached  car  shouting  to  her  just  before  it  struck  her.  Colorado  Cent.  R. 
Co.  B.  Holmes,  8  Am.  &  Eng.  R.  R.  Cas.  410. 

It  being  proved  that  the  crussing  was  not  dangerous,  and  that  it  was  not 
usual  to  give  signals  by  ringing  the  bell  or  sounding  the  whistle  at  that  place 
and  there  not  appearing  any  reason  why  such  signals  should  be  given  unless 
some  one  should  be  seen  on  or  approaching  tlie  track ;  the  train  being  Id 
sight  for  200  yards,  and  the  deceased  having  been  able  to  have  seen  it,  if 
she  had  looked  in  time  to  have  crossed  in  safety  or  to  have  waited  to  let  it 
pass,  heid,  that  a:  the  time  and  place  where  the  accident  occurred,  there  was 
no  obligation  on  the  railroad's  part  to  give  a  signal  of  the  approach  of  the 
train  by  souuding  the  whistle  or  ringing  the  Dell  and  negligence  could 
not  be  imputed  to  it.  Northern  Cent.  R  Co.  e.  State,  6  Am.  &  Eng.  R.  R. 
Cas.  66.  Bee,  generally,  Baltimore  &  O.  R.  b.  Depew,  12  Am.  &  Eng.  R. 
E.  Cas.  64;  Dinwiddie  ».  Louisville,  etc.,  R.  Co.,  16  Am.  &  Eng.  R.  R.  Caa. 
483:  Louisville,  etc.  R.  Co.  e,  Howard,  19  Am.  &  Eng.  R.  R.  Cas.  D8. 

Drunkennes*— Providential  Helpiesiness.~A  reasonable  lookout  varyinR 
according  to  the  danger  and  all  the  surrounding  circumstances  is  a  duty  al- 
ways devolving  on  those  in  charge  of  a  railroad  train  in  motion,  and  railway 
companies  are  bound  to  exercise  their  business  with  due  CAro  to  avoid  injury 
to  others,  and  when  they  fail  to  do  so  they  are  liable  in  damages  for  injuries 
resulting  to  a  trespasser  who  has  not  been  guiltv  of  contributory  negligence. 
(.1.  &  Q.  N.  R.  Co.  B,  Jnrdan,  10  Am.  &  Erig.  B.  R.  Cas.  301.)  When  one, 
who  enters  on  a  railway  track  when  no  train  is  in  sight,  becoming  insensible 
from  providential  cause,  is  lua  over  and  injured  while  lying  in  open  view,  it 


^dbyGoOglc 


TRESPASSER  ON  TRACK — NBGUGENCE.  375 

ifl  held  that  he  maj  recover  on  account  of  the  negligence  on  the  part  of  the 
railwsy'a  agents  in  not  discoTeriog  a  helpleaa  man,  that  being  the  cause  of 
the  injurjr,  but  if  helpless  from  drunkeoDeu,  is  guiltj  of  contnbutor; negli- 

Since,  The  H,  &  T.  0.  R.  Co.  v.  SimpkonB.  6  Am.  &  Eng.  R.  B.  Cas.  11; 
eeks  «.  Bo.  Pac.  R.  Co.,  8  Am  &  Eng.  K.  R.  Cas.  814. 

A  platDtiff  was  on  a  railroad  track  oa  which  was  a  wetl-worn  path  and 
was  drunk  and  staggered,  aod  whco  within  about  four  miles  from  home,  and 
about  dark,  he  fell  and  la;  upon  the  track,  and  a  construction  train  on  which 
the  tender  was  in  front  of  the  engine,  and  there  was  no  light  which  could  be 
seen  in  front,  about  eight  o'clock,  ran  over  and  killed  him.  It  was  held  that 
though  the  defendaat  was  negligent  in  noi;  having  a  light  on  the  lookout, 
yet  deceased's  own  negligence,  in  being  voluctanly  on  the  track  and  from 
intoxication  unable  to  get  out  of  tbe  way,  was  the  proximate  cause  of  his 
death.     Little,  etc.,  R.  Co.  e.  Panhhurst,  5  Am.  &  Eng.  R.  R.  Ca«.  636. 

A  Tvilroad  company's  employees,  who  are  ignorant  of  the  deafness  and 
dumbness  of  a  person  run  over  by  a  train  and  killed,  have  a  right  to  believo 
that  he  would  ao  what  a  man  possessed  of  his  ordinary  faculties  would  have 
done — stepped'ofl  the  track  in  time  to  avoid  danger  when  he  heard  the  ap- 

E roach  of  the  train — and  they  were  not  in  fault  for  failing  to  Stop  the  train, 
low  the  whistle,  or  ring  the  beli;  but  it  seems  the  knowledge  of  such  phys- 
ical inSrmities  would  compel  a  stricter  measure  of  duty.  Louisville,  etc.,  R. 
Co.  D.  Cooper,  e  Am.  &  Eng.  R.  R.  Cas.  S ;  International,  etc.,  R.  Co.  o.  Smith, 
19  Am.  &  Bag.  R.  R.  Cas.  31. 

Where  a  train  having  blown  its  whistle  and  reversed,  tbe  engine  neverthe- 
less ran  over  a  boy  aleeping  on  the  track  and  a  trespasser,  the  company  was 
not  liable,  though  a  wrong-doer  or  trespasser  is  not  an  outlaw  to  be  run  over, 
injured,  or  killed  with  impunity  without  the  exercise  of  ordinary  care  and 
caution  ^t  the  railroad  company  or  ite  employees,  it  being  equally  true  that 
such  companies  are  protected  against  speculative  suits  and  damages  for  in- 
juries caused  by  the  equally  proximate  and  incurring  negligence  of  tres- 
rsers  and  wrong-doers.  Rudd  v.  Richmond,  etc.,  R.  Co.,  38  Am,  &  Eng., 
R.  Cas.  253.  See  East  Tennessee,  etc.,  R.  Co.  t>.  Humphreys,  10  Am.  & 
Eng.  R.R.  Ca*.  472;  State  o.  Phila.,  W.  &  B,  R.  Co.,  1.^  Am.  &  Eng.  R.  R, 
Cas.  481:  McClelland  p.  Louisville,  etc.,  R.  Co.,  18  Am.  &  Eng.  R.  R.  Cas. 
260;  Louiavillf,  etc.,  R.  Co.  t.  Oreen,  19  Am.  &  Eng.  R.  R.  Cas.  95. 

Infancy.— Where  an  infant  of  tender  years  was  run  over  and  injured  by  a 
gravel  train  midway  between  two  streets  of  the  city,  the  road  being  unfenced 
and  the  view  unobstructed,  and  a  pathway  leading  across  the  track,  and  the 
train  approaching  a  crossing,  it  was  held  that  if  the  servants  of  tlie  railroad 
saw,  or  oy  the  exercise  of  ordinary  care  under  the  circumstances  could  have 
seeu,  the  child  in  time  to  avoid  injuring  ber,  and  failed  to  do  so,  tbe  de- 
fendant is  liable,  and  whether  such  care  was  used  about  the  time  of  the  in- 
jury is  for  the  jury.  Frick  n.  St.  Louis,  etc.,  R.  Co.,  B  Am.  &  Eog.  R.  R. 
Cas.  S80.  See,  generally,  Hayes  e.  Michigan  Cent,  R.  Co.,  15  Am.  *  Eng. 
R.R.Cas.a94;  HcQeary  v.  Eastern  R.  Co.,  407;  Kejser  o.  Chicago,  etc., 
M.  Co.,  10  Am.  &  Eng.  R.  R.  Cas.  91 ;  Durkea  n.  Cent.  Pac.  R.  Co.,  25  Am. 
&  Eog.  R.  R.  Cas.  350,  and  note;  Indianapolis,  etc.,  R.  Co.  e.  Piker,  ZS 
Am.  &  Eng.  R.  R.  Cas.  313;  Batishell  e.  Humphrey,  29  Am.  &,  Eng.  R.  R. 
Cas.  411. 

Trains  Running  at  Night,— Servants  of  a  railroad  company  operating 
its  traips  in  the  country  at  night  have  a  right  to  assume  that  the  track  is 
clear  and  are  under  no  obligation  to  provide  for  the  safety  of  persons  who 
may  be  on  it,  and  even  if  they  know  that  the  track  is  used  as  a  footpath, 
this  will  not  exonerate  any  one  ao  using  it  from  the  duty  of  taking  proper 
care  to  avoid  injuries.  Arnold  e.  St.  Louis,  etc.,  R.  Co.,  10  Am.  &  Eng.  R. 
R  Cas.  726.  See,  generally.  Bacon  e.  Bnlt.  &  Pot.  R.  Co.,  15  Am.  &  Eng. 
R.  R.  Cas.  400. 


^d  by  Google 


376   BAUMEISTEB  V.   OSAND  EAPtDS,  AND   INDIANA  E.    OO. 

LlosnMfc — There  is  a  cle&r  diatinctioii  bettrsen  the  care  which  a  railro&d 
company  ia  bound  to  ezercue  toward  mere  trespassers  and  toward  those 
who  are  on  its  right  of  way  by  the  license  of  the  company,  and  in  case  of  a 
long  And  constant  use  of  such  way  the  company  aad  its  servaQts  are  chained 
witn  notice  of  it,  and  cannot  neglect  precautions  to  prevent  danger  to  per- 
sons travelting  thereon.  Wilful  injury  is  not  the  only  ground  of  liability 
iu,Buch  case.  Davis  v.  Chicago,  etc.,  R.  Co.,  15  Am.  &  Eng.  R.  R.  Cas.  434. 
See,  also,  Hogan  v.  Chicago,  etc.,  R.  Co.,  15  Am.  &  Eng.  R.  R.  Cas.  439. 

A  person  walking  on  a  rulroad  track  la  a  trespasser,  and  mere  acquiescence 
of  railroad  company  in  such  use  by  public  does  not  impose  upon  it  any  duiy 
of  protection  as  to  such  trespasser.  Bait.  &  O.  R.  Co.  t.  State,  19  Am.  & 
Bag.  R.  R.  Cas.  88;  Oreshen  v.  Chicago,  etc.,  R.  Co.,  19  Am.  &  Eng.  R.  IE. 
Cas.  842. 

Expulsion  of  Treipasiersi — In  an  action  brought  ag^nst  a  railroad  com 
pany  to  recover  damages  for  personal  injuria  the  jury  found  that  the  plain- 
tiff got  upon  one  of  the  defendant's  trains  while  drunk,  and  not  as  a  paa- 
senger,  and'  was  violently  ejected  therefrom  by  the  conductor  while  the  train 
was  in  motion,  whereby  he  was  injured.  Mdd,  that  there  was  evidence  to 
support  a  verdict  for  the  plaintiff,  and  that  the  same  would  not  be  disturbed. 
Louisville,  etc.,  R.  Co.  t>.  Dunkin,  15  Am.  &  Eng.  R.  R.  Cas.  423.  Bee, 
generally,  Penna.  Co.  o.  Toomey,  1  Am.  &  Eng.  R.  R.  Cas.  461 ;  Cauley  d. 
P.,  C.  &  St.  L.  R.  Co.,  3  Am.  &  Eng.  R.  R.  Cas.  4;  s.  c,  4  Am.  &  Eng.  R. 
R.  Cas.  637;  Marion  v.  Chicago,  etc.,  R.  Co.,  8  Am.  &  Eng.  R.  R.  Cas.  177; 
JobneoD  e.  Chic^o,  etc.,  R.  Co.,  8  Am.  &  Eng.  R.  R.  Cas.  306;  Carter  c. 
Louisville,  etc.,  R.  Co.,  8  Am.  &  Eng.  R.  R.  Cas.  847;  Finney  t>.  Northern 
Pac.  R.  Co.,  13  Am.  &  Eng.  R.  K  Cas.  17. 


Baumbibteb,  Admz., 


Obabd  Rapidb  AST)  Indiana  R.  Co. 

(Advanee  Gate,  Miehigan.     Oetcier^,  1887.) 

PlainHS's  intestate,  a  man  in  the  full  possession  of  bis  senses,  but  subject  to 
spells  of  absent  miodedness,  while  walking  on  the  track  of  the  defendant 
railroad  company  without  permission,  though  he  had  been  accustomed  to  do 
so,  as  had  some  others,  was  struck  and  killed  by  one  of  defendant's  engines. 
The  evidence  went  to  show  that  the  engineer,  when  the  train  was  between  n 
half  and  three  quarters  of  a  mile  o£  sounded  the  whistle,  and  when 
within  40  rods  of  deceased  again  whistled  sharp  and  full,  that  deceas-cl 
paid  no  attention  to  it;  and  when  within  three  or  four  hundred  feet  of  liini 
the  engineer  sounded  the  danger  whistle,  and  continued  sounding  it  until 
the  engine  struck  deceased,  and  also  applied  the  brakes  and  made  every 
possible  effort  to  stop  the  train ;  and  that  from  the  time  the  whistle  was 
sounded  deceased  had  ample  time  to  get  ofF  the  track.    Held: 

1.  That  the  trial  court  properly  directed  a  verdict  tor  defendant. 

2.  That  the  deceased,  in  walking  upon  the  track  without  permission,  was 
goitty  of  such  contributory  negligence  as  would  defeat  a  recovery  against 
the  company  for  his  death,  unless  it  was  proven  that  the  en^neer  of  the  train 


^dbvGoogle 


TEE3PA88EB  ON  TKACK — CONTKIBUTOEY    NEGLIGENCE.     377 

«aw  and  underetood  the  danger,  and  reoklessl;  ran  the  train  upon  him  with- 
out doing  what  he  could  to  avoid  the  injury. 

Ekbob  to  an  peri  or  court,  Grand  Rapids. 

Fred,  A.  Mayna/rd  and  Lincoln  B.  Ziinngston  for  plaintiff. 

T.  J.  O'Brien  and  J.  H.  Campbell  for  defendant. 

MoRBB,  J. — This  canse  was  before  this  court  in  the  October 
term,  1886,  and  will  be  found  reported  in  28  Am.  &  Eng.  R.  R. 
CaB.  476.  The  cause  as  tlien  presented,  rested  upon  _^^^ 
the  statement  of  facts  made  by  the  connsel  for  the 
plaintiff  in  liie  opening  to  tlie  jury.  We  then  held  that  Each 
statement  if  proven,  entitled  the  plaintiff  to  a  recovery.  The 
canse  has  since  been  tried  in  the  snperior  court  for  the  city  of 
Grand  Hapids,  and  the  jnry,  under  the  instructions  of  said  court, 
rendered  a  verdict  in  favor  of  the  defendant.  The  plaintiff  brings 
error.  The  undispnted  facts,  as  developed  upon  the  trial,  are  as 
follows : 

Peter  Brandel,  the  deceased,  was  a  native  of  Holland,  and  39 
yeare  of  age  at  the  time  of  his  death.  He  was  a  man  of  family, 
and  lived  about  a  mile  sonth  of  the  car-shops,  where  he  was  em- 
ployed, said  car-shops  being  located  at  or  near  the  f«cts. 
southern  boundary  of  the  city  of  Grand  Rapids.  He  was  a  sober, 
industrious  man,  and  a  good  workman.  His  nearest  and  easiest 
route  to  his  home  was  along  the  track  of  the  defendant,  it  being 
considerably  out  of  the  way  to  follow  any  of  the  roads  leading  out 
of  the  city  in  his  direction.  He  had  been  in  the  habit  of  using 
the  railroad  track  in  going  to  and  from  his  work  for  a  long  time. 
Some  other  people  living  near  him  also  nsed  the  track  for  a  like 

Enrpoee.  It  does  not  appear  that  any  permission  was  ever  given 
im  or  any  one  else  to  so  use  the  railroad  track,  nor  that  they  were 
expressly  forbidden  by  any  one  to  do  so,  Tiie  train  which  struck 
and  killed  him  was  admitted  to  be  behind  time.  It  nsnally  passed 
the  cai-sliops  before  he  left  his  work.  On  the  afternoon  of  De- 
cember 7,  1881,  while  Brandel  was  going  home  as  usiial  npon  the 
track,  he  was  run  over  and  instantly  kiiled.  The  engineer  saw 
him  upon  the  track  about  the  time  the  train  should  have  whistk-d 
for  a  crossing,  and  gave  the  nsual  whistle.  When  he  came  within 
40  rode  of  deceased,  he  again  whistled  sharp  and  full.  Brandt!] 
paid  no  attention  to  it,  ana,  when  the  train  was  within  about  300 
or  400  feet  of  him,  the  engineer  sonnded  the  danger  whistle  until 
the  engine  struck  the  deceased.  This  whistle  was  so  sharp  and 
strong  that  it  called  the  attention  of  several  people  to  it,  and  onu 
Abel  Staal,  the  only  person  who  witnessed  the  accident  beside  the 
train-hands,  testifies  that  "  they  whistled  so  hard  t)iat  I  thought  it 
was  funny  the  man  didn't  get  off  tiie  track.  . .  .  The  whistles  wL't-e 
blowing  so  loud  I  felt  like  hollering  to  the  man  to  get  off  tiie 


^d  by  Google 


378  BADMEiaTEE  V.    GKAND   RAPIDS  AND   INDIANA   R.    00. 

track.  I  put  my  fingers  in  m;  eai-s  eo  as  not  to  Lear  the  sharp 
sound,"  Bi-andeT  was  a  man  in  the  fall  poBseseion  of  hie  senses, 
but  had  spells  of  being  absent-minded.  He  was  walking  with  a 
book  nnder  his  arm,  and  a  dinner  pail  in  his  hand,  and  seemed  to 
pay  no  attention  to  anything  until  just  as  the  train  strnck  him, 
then  lie  tnrned  his  head. 

He  was  luoet  certainly,  nnder  all  the  anthorities,  gnilty  of  coii- 
tribatory  negligence  in  tliiis  walking  in  such  a  dangerons  place 
witliont  taking  any  care  or  precantion  whatever  for  his  safety. 
DicumiomL-  "^''B  evidence  is  conclnsive  that  if  he  had  exercised 
tLBu^HT  ™-"  any  cantioii  at  all,  or  been  at  all  on  the  alert  for  dan- 
uoMqa.  ggj,^  jjg  ninst  have  heard  the  whistle  in  time  to  have 

saved  himself  by  stepping  off  the  track.  We  held,  when  the  case 
was  here  before,  taking  the  statement  of  the  plaintiff's  connsel  in 
his  opening  to  tlie  jury  to  be  true,  as  we  were  obliged  to  do,  that 
he  was  on  the  track  by  permission  ;  that  he  was  unconsclons  of  the 
approach  of  the  train,  which  fact  was  known  to  the  engineer ;  that 
knowing  he  was  "thas  unconscious,  and  having  plenty  of  time  to 
stop  before  reaching  him,  the  engineer  negligently  and  recklessly 
ran  the  train  at  full  epeed  upon  him  ;  that  when  the  engineer  saw 
that  the  whistles  had  no  effect  npon  liira,  and  knew  that  he  did 
not  hear  them,  it  was  liis  duty  to  "slow  down  his  train,  and,  if 
necessary  to  preserve  life  or  hmb,  come  to  a  full  stop."  The  case 
was  decided  expressly  upon  the  ground  that  the  engineer,  knowing 
that  the  whistles  and  bells  were  not  sufficient  to  warn  Brandel  of 
his  danger,  and  being  able  to  stop  his  train  before  reaching  him, 
ran  reeklessly  and  heedlessly  upon  him.  In  such  case  the  contrib- 
utory negligence  of  the  deceased  would  not  avail  against  the  crim- 
inal conduct  of  tiie  engineer. 

But  it  appears  now,  from  the  evidence  of  the  engineer  and 
others,  that  tie  was  not  aware  that  Brandel  was  uncouscious  of  the 
whistles,  or  would  not  heed  them  until  lie  was  within  three  or  four 
hundred  feet  of  the  deceased.  Then  he  immediately  applied  the 
brakes  with  fnll  force,  and  made  every  possible  effort  to  stop  the 
train,  at  the  same  time  continuing  the  danger  signals.  If  the  en- 
gineer and  the  other  witnesses  are  to  believed,  the  engiueer  was 
neither  reckless  or  inhuman,  but  did  all  that  an  ordinarily  prudent 
man  would  have  done  under  like  circunistances.  It  appears  from 
the  testimony,  and  it  is  not  unlikely  or  improbable,  that  quite  a 
per  cent  of  the  people  who  are  daily  walking  along  railroad  tracks, 
and  upon  them,  do  not  get  out  of  the  way  or  off  the  track  when  the 
whistle  is  first  sounded,  and  many  do  not  step  off  the  track  until 
the  train  is  pretty  close  to  them.  The  engineer  says  he  supposed 
the  man  must  sncely  have  heard  the  whistle,  and  would  get  off,  as 
he  had  abundance  of  time  in  which  to  do  so.  "  It  is  not  an  unusnat 
thing  for  them  to  get  off  whenever  they  get  ready,  without  look- 
ing around."     It  is  not  to  be  presumed  .tliat  this  engineer  ran 


^d  by  Google 


PEatSOH  UNDER  CABS— CONTBIBUTOBT  MEGLIGENOE    it'i9' 

recklessly  and  inhomaDty  npon  the  deceased,  knowing  tliut  be  mast 
kill  Lim,  and  knowinc^  th&t  iioae  of  hie  signals  bad  been  lieard. 
Tlie  presDmption,nnaerthe  circuinstanceB,  Datiirally  would  be  tbat 
the  wbistles  were  beard  and  would  be  heeded. 

Was  there  any  teetiinony  upon  the  part  of  the  plaintiff  tending 
in  anyway  to  rebnt  this  presumption  in  favor  of  tne  engineer  and 
the  testimony  for  the  defence !  Mr.  Staal,  the  only  witness  for  the 
plaintiff  who  saw  the  transaction,  says  that  the  train  whistled  a 
nig  half  mile  or  three-quarters  of  a  mile  from  Brandel.  "Conld 
not  tell  how  many  whistles  they  blowed ;  they  kept  blowing,  not 
exactly  tbe  sharp  whistles,  but  they  kept  on  blowing.  Question. 
The  whistling  was  .continuous  up  nntil  the  time  be  struck  tbe 
man!  Answer.  Tliey  might  have  stopped  for  a  moment,  but 
they  kept  on  whistling."  He  Bwears  that  he  noticed  no  slacking  of 
the  train  until  the  man  was  struck,  bnt  that  the  train  stopped  and 
backed  up  after  that.  He  testifies  that  Brandel  liad  plenty  of  tim» 
to  get  off  after  the  danger  whistles  were  sounded.  I  do  not  think 
the  fact  that  Staal  did  not  notice  any  slacking  of  the  train  until 
Brandel  was  struck  sufficient  to  authorize  any  candid  jury  to  find 
that  no  effort  was  made  to  stop  the  ti-ain  as  soon  as  the  engineer 
was  reasonably  informed  that  Brandel  took  no  heed,  and  was  nn- 
conscious  of  the  whistling,  and  was  in  danger.  The  evidence  is 
overwhelming  that  ench  an  effort  was  made,  and  the  fact  of  the 
train  stopping  when  it  did,  corroborates  the  case  made  by  the  wit- 
nesses for  tbe  defence.  The  deceased  being  negligent  the  plaintiff 
could  not',  recover,  unless  it  was  established  that  the  engineer  s;uv 
and  understood  the  danger  to  him,  and  recklessly  ran  tbe  train 
npon  him  without  doing  what  he  conld  to  stop  and  avoid  tbe  in- 
jary.  The  evidence  is  to  the  contrary.  Tbe  judgment  must 
therefore  be  affirmed. 

(The  other  justices  concurred.) 

Duty  of  Company  to  Tr«»paM«r(  on  Track. — See  Palmer  c.  Chicago,  etc.,. 
R.  Co.,  and  note,  mpra,  p.  864. 


Lase  Shokb  akd  Mtohioan  Sodthben  R.  Co. 
(AdMinee  Cote,  MuAigan.     June  %%,  1887.) 

Plaintiff's  intestate  was  an  employee  of  a  car  building  compao;.  Con- 
trarj  to  the  direction  of  bis  etnployer,  he  crawled  under  some  new  cars 
which  had  left  the  company's  yards  as  completed,  and  stood  upon  tbe  de- 
fendant's railway  track  read;  for  transportation.  This  he  did  after  the  con- 
ductor of  one  of  defendant's  tiaina  exanuned  the  cars  to  see  if  any  person 


^dbvGooglc 


380  COOPS  V.  LAKE  8H0BE  AND  HIOHIGAN  BOUTHEEN   B.   00. 

was  tmder  or  about  tfaem.  The  train  was  then  coupled  to  th«  uew  cars  and 
started  up  aud  deceased  was  killed.  In  an  action  for  cauung  his  death, 
3eld,  that  the  defendant  was  not  liable,  the  deceased  being  guiltj  of  con- 
tributor; negligence,  sod  it  was  error  to  submit  to  the  jury,  in  the  absence 
of  evideace,  the  question  whether  or  not  there  was  a  custom  for  the  em- 
ployees of  the  car  company  to  go  under  the  cars  for  repairing  them,  after 
thej  had  been  turned  over  to  the  railroad  company  as  completed. 

Ebbob  to  the  BDperior  court  of  Detroit  to  review  a  judgment 
for  $5287  in  favor  of  plaintiff  in  an  action  broaght  to  recover  dam- 
ages for  personal  injuries  resulting  in  death.     Reversed. 

Tlie  bill  of  exceptions  v/ae  settled  after  judgment  by  tlie  presid- 
ing judge  of  the  Wayne  circuit  court,  under  tue  provisions  of  the 
act  abolishing  the  superior  court  of  Detroit. 
The  facts  are  fully  stated  in  the  opinion. 
William  H.  Wells  for  defendant,  appellant 
W.  L.  Carpenter  for  plaintiff,  appellee, 

Sherwood,  J, — The  plaintiff,  as  administrator  of  the  estate  of 
TJhlenberg,  Recovered  a  judgment  in  the  superior  court  of  Detroit 
for  $5287,  as  damages  for  killing  his  intestate.  TJhlenbei^  at  the 
statA.  time  of  his  death,  and  for  some  lime  previous  thereto 

was  employed  by  the  Peninsular  Car  Compauy  at  Detroit  to  make 
brakes  at  one  of  ita  shops. 

When  he  was  killed  he  Iiad  crawled  between  the  wheels  of  a 
truck  under  the  hind  car,  going  in  at  the  side  of  the  car ;  the  wheels 
passed  over  and  crushed  him.  The  company  was  engaged  in  the 
manufacture  of  freight  cars,  and  had  its  grounds  and  snops  contigu- 
ons  to  the  tracks  of  the  defendant,  but  defendant  had  no  interest 
in  the  car  company's  woi'ks.  The  defendant  had  several  tracks  en- 
tering the  car  company's  grounds  and  connecting  with  its  main 
track,  whieli  were  used  in  carrying  material  to  the  car  company's 
shops  in  different  parte  of  its  yards,  and  for  removing  newcare  out 
when  completed.  The  erecting-ehop  of  the  car  company  was  very 
large,  and  in  this  the  cars  were  completed.  This  ouilding  con- 
tained eight  parallel  tracks,  on  which  the  cars  were  set  up,  all  of 
which  converged  to  the  switch  on  the  outside  connecting  with  the 
defendant's  main  track.  The  company's  grounds  extended  about 
four  car  lengths  from  the  car-ei-ecting  building,  where  there  was  a 
boundary  fence,  and  the  switch  was  some  distance  beyond  that, 
and  the  ti-ack  curved  to  the  west  from  the  building  to  the  switch. 
The  finished  cars  were  delivered  to  the  defendant  for  shipment  out- 
side the  erecting-eliop  into  tlie  yard.  The  defendant  was  accus- 
tomed to  enter  daily  into  the  grounds  and  yard  of  the  car  company 
with  its  trains,  either  taking  material  to  the  car  company,  or  for 
the  purpose  of  taking  out  new  care  which  were  designated  as  ready 


ogo. 
Ontl 


!i  the  28th  day  of  May,  1886.  the  defendant's  switching  crew 
were  engaged  in  taking  out  the  new  care  ready  to  go.     Seven  new 


=dbvCoO'^lc 


PBRSOH'  UNDER  CARS — CONTRIBUTORY   NEGLIGENCE.     381 

cars  were  ready  for  Bbipmeiit.  Tlie  defendant's  engineer  firet 
bitclied  on  to  qnite  a  number  of  cars  in  the  company's  yard,  which 
had  been  emptied  of  material  taken  to  the  car  company's  ehope, 
and  stood  on  the  material  track.  After  tlieae  had  been  attaclied 
to  the  engine  it  moved  out  and  backed  up  to  the  place  where  the 
seven  new  cars  stood,  and  made  connection  with  those.  The  new 
cars  had  stood  npon  the  track,  coupled  together,  all  day  previous 
to  starting. 

After  tliese  cars  were  coupled  on  and  moved  forward  a  few  feet, 
the  engineer  stopped  his  train  and  waited  a  few  minutes  for  one 
of  the  defendant's  regular  trains  to  pass  before  entering  the  main 
line.  The  curve  npon  which  the  trahi  then  stood  was  such  as  to 
prevent  the  engineer's  seeing  the  back  end  of  his  train.  The  evi- 
dence tended  to  show  that  it  was  customary  for  the  car  company  to 
examine  and  look  after  the  new  ear^  np  to  the  time  they  left  its 
yard,  and,  if  anything  had  been  omitted  or  a  defect  was  discovered, 
to  remedy  it  outside  of  the  shops,  and,  if  it  could  be  done,  do  the 
work  on  it  as  the  car  stood  upon  tlie  track  ;  and  with  this  custom  the 
defendant's  servants,  as  well  ae'  those  in  the  service  of  the  car 
company,  were  familiar.  It  was  while  this  train  stood  thns  wait- 
ing that  Uhlenberg,  in  obedience  to  the  direction  of  one  of  the  men 
in  the  employ  of  the  car  company,  went  to  the  hind  car  and  at- 
tempted to  put  a  nut  lock  thereon,  by  getting  in  between  tlie 
wheels  of  tiie  hind  truck  from  the  side.  He  did  not  know  that  the 
new  cars  were  coupled  to  the  defendant's  train,  and  could  not  see- 
'  the  engine  from  the  rear  car  that  he  went  under.  The  testimony 
tends  to  show  the  train  stood  there  about  fifteen  minutes  after  the 
new  cars  were  coupled  on.  The  main  question  was  whether  the  de- 
fendant was  guilty  of  negligence ;  and  this  can  only  be  known 
when  it  is  ascertained  what  was  necessary  for  the  defendant  to  do 
before  starting  its  train,  after  having  coupled  on  the  new  cat's,  if 
anvthing,  and,  if  so,  was  it  done. 

It  appears  the  conductor  of  the  switching  train  was  very  com- 
petent, and  had  held  tlie  position  for  along  time,— had  been  in  the 
employ  of  the  company  fourteen  years.  He  testified  that  he  was 
accustomed  to  do  the  car  company's  business  in  their  yard,  and 
s:iid  :  "  There  is  a  straight  track  along  the  east  side  of  the  car 
company's  yard,  on  which  I  put  my  loaded  cars.  They  are  un- 
loaded at  different  places.  Then  I  go  in  and  take  the  empties  oat. 
The  empties  stand  on  different  tracks.  I  get  them  back  and  then 
pull  ont,  and  then  come  where  the  new  cars  stand  on  the  eight 
tracks.  "When  I  get  my  empties  all  coupled  up  I  come  to  the  new 
cars,  conple  them,  and  pull  them  all  outside  the  yard.  ...  In  all 
eaaea  I  see  Mr.  Weiss,  assistant  superintendent  of  the  car  works, 
atid  ask  him  what  new  cars  are  to  go  out.  The  day  before  the  acci- 
dent happened  I  saw  Mr.  Weiss  and  asked  him  what  was  to  go, 
and  be  told  me  there  were  seven  nnion  steel  ears,  and  showed 


^d  by  Google 


383  COOPS  V.  LAKE  SHOIIE  AMD   HICHIOAN   SOUTHERN   B.  00. 

them  to  me.  I  coupled  t]iem  np  and  palled  them  onteide  the  eate, 
OD  the  Lake  Shore  track  outside  the  yard,  between  4  and  5  o'clock 
p.  M,  Usually  did  that  work  at  that  time  every  night.  Tliose  care 
were  intended  for  the  freight  traJH  that  left  thure  iit  6.30  o'clodi. 
The^  did  not  go  that  night.  I  heard  the  next  morning  the  reason 
was  that  they  were  not  hilled.  Tlie  next  morning  I  came  along  to 
do  some  wo^  in  the  car  company's  yard.  Those  cars  were  in  mv 
way,  and  we  shoyed  them  in  on  No  2  track.  It  was  not  the  track 
I  had  taken  tbem  from.  I  Iiad  made  them  up  from  different 
track,  three  or  four.  There  were  seven  in  all.  .  .  At  that  time 
they  were  coupled  together.  I  coupled  them  the  night  before. 
ThiB  wae  about  half  past  nine  in  the  morning.  ...  I  saw  Weiss 
when  I  first  came  in  the  yard,  about  half  past  two  o'clock ;  asked 
him  what  new  cars  wei'e  going  that  night.  He  told  me  those  seven 
8t«el  cars  were  ready,  and  there  was  one  other,  No.  100,  on  the 
track  east  oi  the  erecting.«hop.  .  .  .  After  I  got  these  cats  all  to< 
gether  and  had  coupled  on  this  new  car,  I  told  ray  ewitchrnan  to 
go  ahead  and  back  in  on  the  seven.  I  tlien  walked  over  to  the 
back  end  of  the  seven  cars.  I  then  looked  tliem  over  as  I  went 
along,  to  see  if  those  cars  were  all  coupled.  I  walked  up  and  along 
the  east  side  of  theni.  I  passed  along  by  the  side  of  the  care. 
There  was  nobody  working  upon  these  seven  care  when  I  passed 
along  by  them.  I  observed  that  particularly  when  I  walked  up, 
to  see  if  there  were  any  men  working  around  them.  I  did  not  see 
anybody  working  on  them  or  anywhere  near  these  cars,  at  all.  I 
then  coupled,  and  (rave  the  signal  to  my  switchman  to  poll  the  cars 
out  of  the  yard.  tTust  as  I  gave  that  signal,  the  signal  of  the  train 
at  the  Bay  City  crossing  was  given  coming  towards  the  city.  That 
train  was  on  the  main  track.  I  had  to  use  that  ti'ack  in  order  to 
pull  those  care  out  of  the  yard.  Then  my  switchman  gave  the  en- 
gineer a  signal  to  stop.  When  we  stopped,  the  train  had  moved  a 
carlength  or  two.     The  switch  at  that  time  was  placed  for  ns  to 

fmll  out  on  the  main  track.  I  was  at  a  point  just  outside  the  gate 
ooking  toward  the  engiiiu.  My  ears  moved  right  ont  immediately 
after  the  train  passed.  I  gave  the  signal  to  start  at  that  time. 
The  engineer  rang  his  bell  and  started  the  train ;  and  when  the 
car  moved  about  a  carlengtli  or  more  we  heard  a  halloo,  a  noise  from 
the  hind  end  of  the  hind  can,  and  I  gave  a  signal  to  stop,  as  quick 
as  possible,  and  we  did  it.  The  signal  is  given  by  hand  from  con- 
ductor to  engineer.  There  is  no  signal  given  anymore  than  the 
engineer  always  rings  his  bell  before  starting  the  engine,  whether 
he  is  coupled  on  to  the  care  or  not.  Tliat  is  a  precaution  they  take 
at  all  times.  The  whistle  is  not  used  up  there.  There  is  no  occa- 
sion to  use  it.  I  never  move  any  cars  out  of  there  without  an  or- 
der from  Weiss.  He  did  not  tell  me  there  was  anything  more  to 
be  done  to  those  cars.  I  got  my  orders  for  those  cars  tlie  day  be- 
fore. .  .  .  From  the  time  this  train  stopped  after  having  started 


^d  by  Google 


PEKSOK   UNDER  CABS— CONTKIBUTOKY   NEGLIGENCE.     383 

the  tiret  time  nntil  it  started  ^aiii  I  did  not  go  back  to  the  rear 
of  these  new  cars.  . .  .After  Ulilenberg  was  killed  I  weot  back  to 
the  rear  end  of  the  train  (a  see  what  was  tlie  matter.  I  found 
Uhleiiberg  under  the  car.  He  was  between  the  wheels  of  the 
track  of  the  last  car  when  I  first  saw  him.  I  did  not  know  what 
lie  was  doing  there,  until  I  was  told  after  the  accident  happened. 
...  I  frequentlj  find,  when  I  come  to  those  curs,  tlmt  tliere  are 
men  working  atonnd  them,  and  I  make  observation  ordinarily  to 
}iscertain  whether  any  body  is  working  aronnd  them.  Even  after  I 
pnll  the  cars  ont  on  the  track  north  of  the  yard  I  have  seen  men 
working  at  them  there.  .  .  .  After  I  am  told  that  cars  are  ready 
to  go,  1  make  an  observation  to  see  whether  any  one  is  working  ou 
them,  and  eoaple  them  up  and  get  ready  to  pull  them  out.  After 
that  I  don't  make  any  observations,  but  start  the  train.  We  do 
not  usually  hitch  on,  and  then  wait  awhile  and  then  start,  nnless 
something  occurs  so  that  we  have  to  do  it," 

The  foregoing  is  substaiitiiilly  the  testimony  of  the  coadnctor  of 
the  train  wliich  killed  Mr.  Uhlenherg,  and  the  other  testimony  in 
the  case  is  mostly  corroborative  of  his. 

In  enbmitting  the  case  to  the  jury  tlie  court  said : 

"The  plnintm  proceeds  hero  upon  the  claim  that,  while  prob- 
ably McDonald,  who  was  in  charge  of  the  company's  train,  had 
not  actual  knowledge  that  the  deceased  was  at  work,  yet  that  the 
custom  of  doing  business  between  the  Peninsular  Car  Company  and 
the  railroad  company  had  been  sucli  chat  he  had  reason  to  believe 
that  some  one  migiit  be  there  :  that  it  was  altogether  probable,  or 
lit  least  possible,  that  some  one  might  be  there,  and  that  therefore 
it  was  his  datj,  before  starting,  toiook  out  and  ascertain  the  fact. 
Now  that  is  the  claim,  and  it  is  upon  that  basis  alone  that  this  case 
can  go  to  you.  There  is  no  other  ground  upon  whicli  you  can 
consider  this  case.  So  that  the  very  first  thing  you  are  to  aacei'tain, 
logically  and  properly,  is  whether  the  course  of  business  between 
the  Peninsular  Car  Company  and  the  railroad  company  was  such 
that  the  employee  of  the  raih'oad  company,  Mr.  McDonald,  woold 
have  good  reason  to  suppose  that  it  was  probable  or  possible  tliat 
some  one  would  be  underneath  the  car  there  making  some  repairs. 
Is  that  so  or  is  it  not  so  ? 

This  cUuse  of  the  charge  presents  the  main  question  in  the  case. 

The  learned  judge  of  the  superior  court  hesitated  somewhat 
about  submitting  the  qnestion  of  the  duty  of  the  de- 
fendant, growing  out  of  the  circumstances,  to  the  jury,  5?f"?B5°a™. 
but  finally  did  pei'mit  them  to  take  the  case  and  ascei--  ?o''?H™jnttYr'" 
tain  whether  or  not  there  was  a  custom  known  to  tiie 
defendant,  and  arising  out  of  the  manner  in  which  the  parties  car- 
ried on  their  transactions  with  each  other,  under  which  the  car 
company's  men  were  permitted  to  go  under  the  care  to  make  re- 
paii-B  after  they  had  been  completed  and   turned  over  to  the  de- 


^d  by  Google 


884  COOPS  V.  LAKE  SIIOEE  AND   MICIlIUAJf  SOITTUERN   B.    CO. 

fendant  to  be  taken  to  tlie  place  of  their  destination,  and  after  the 
defendant  had  conpled  the  new  cars  to  its  train  for  that  purpose. 
In  tills  I  thi[ik  the  court  erred.  I  have  discovered  no  testimony- 
tending  to  prove  sncli  a  custom  ;  and  this  being  the  only  waj  in 
which  it  was  sought  to  establieh  the  dntj  of  tlie  defendant,  npun 
which  reliance  was  placed  for  a  verdict  in  favor  of  the  plaintiff,  I 
am  clearly  of  tiie  opinion  that  the  jury  should  have  been  instructed 
by  the  court,  as  requested  by  the  counsel  for  the  company,  to  re- 
turn a  verdict  for  tlie  defendant. 

The  evidence  is  un controverted  that  the  plaintiff  took  control 
of  the  new  cars  on  the  evening  of  the  29th,  and  in  consequence 
of  a  little  delay  in  procuiing  the  wajhiil  they  were  not  carried  away 
that  night,  lii  the  morning  of  the  next  day  they  were  mn  back 
on  the  car  company's  track  in  its  yard,  for  a  short  time,  and  were 
there  again  coupled  to  the  defendant's  train  and  moved  out  until 
they  came  to  the  iii»in  line,  and  then  liad  to  wait  about  fifteen 
minntes  for  the  Bay  City  train,  which  was  approaching,  to  pass  ; 
and  during  this  brief  stop.  TJhlenberg,  unobserved  by  anyone  (ex- 
cept a  person  who  happened  to  be  in  the  erecting-shopat  the  time), 
came  to  the  hind  car,  and,  witiiout  looking  to  see  if  the  engine  was 
attached  to  the  train,  lay  down  and  crawled  upon  the  track  between 
the  truck  wheels  under  the  cars,  and  while  lying  partially  across 
the  track  tlie  train  started,  and  he  was  nm  over  and  killed.  Be- 
fore the  conductor  started  the  new  cars  from  the  yard  he  went 
along  beside  tiie  train  and  examined  them  and  found  no  person  un- 
der or  about  them,  The  car  company  had  also' given  directions  to 
all  of  its  men  to  avoid  the  trains.  The  order  or  direction  given  by 
the  assistant  superintendent  to  do  the  work  attempted  by  Uhlenberg 
when  he  was  killed  was  not  given  to  him,  but  to  one  Ziskee, — wlio 
was  skilled  in  the  business  and  knew  better  than  to  go  under  the 
cars  without  first  ascertaining  for  himself  whether  there  was  an  en- 

gine  attached  to  the  train  in  which  he  found  them, — and  was  given 
le  day  before  the  injury  occurred,  while  the  cars  were  vet  un- 
moved and  no  danger  existed.  UhlenBerg  had  nevM'  done  the  work 
undertaken  by  him,  before,  and  in  going  under  the  car  he  chose 
the  most  dangerous  place  he  could  have  found,  and  where  no  one 
was  ever  seen  or  known  to  have  gone  before.  I  think  under  all 
these  circumstances  it  would  not  be  difficult  to  find  that  the  plain- 
tiff's intestate  was  gnilty  of  such  negligence  in  the 
iiiwflTiTB aoiu  premises  as  to  preclude  a  recovery.  The  defendant 
uoract  was  under  no  greater  obligation  to  TJhlenberg  on  ac- 

count of  his  inexperience.  Its  obligation  of  care  in 
this  case,  if  any,  was  measured  by  its  duty  towards  skilled  pei-sons; 
and  it  is  very  clear,  if  he  had  been  skilled  in  the  business  ander- 
takeu,  be  wonld  not  have  attempted  to  go  nuder  the  car  in  the 
manner  he  did,  nor  at  the  time  tie  did. 
The  defendant  owed  to  Uhlenberg  precisely  the  care  it  owed  to 


^d  by  Google 


TRESPASSER  OK  TKACK — OONTEIBCTOKY   NEGLIGENCE.   386 

nil  experienced  man,  and  no  more.     Tlie  proper  eignal  had  been 

fiveti,  after  the  new  care  were  attached  to  the  tram,  of  the  oon- 
nctor's  intended  movements ;  and  it  was  the  dnty  of  all  persona 
abont  the  premiees  to  take  lieed  to  that  warning,  at  their  peril.  In 
no  view  iliat  I  have  been  nble  to  take  of  the  circumstances  of  this 
case  huve  I  discovered  how  this  defendant  conld  be  made  liable  for 
the  death  of  the  plaintifTs  intestate,  and  the  conrt  should  hare  di- 
rected the  verdict  for  the  defendant  as  reqnested. 

The  jndgment  mnst  be  reversed,  and  a  new  trial  granted. 

Campbell,  Ch.  J.,  and  Champlin,  J.,  concurred. 

Morse,  J.:  I  concur  in  the  result. 

Duty  of  Railroad  to  Tratpaucrt.— See  Palmer  «.  Ohioago,  eto.,  B.  Oo.  and 
note,  tupra,  p.  8S4. 


East  Tbnnxsskb,  YutaraiA  .utd  Gxoboia  R  Oo. 


{Adnmet  OoMe,  Alabama.     FArvary  3,  1867.) 

Pl^DtiS,  wfaiie  Btanding  on  a  side-track  between  two  can,  talking  to  a 
penon  in  one  of  the  care,  was  injured  by  being  caught  between  the  two  can 
cauMd  by  one  of  them  being  set  in  motion  by  &  backing  engine  and  can. 
In  on  action  to  recover  damages  for  the  injury,  Eeld: 

1.  That  Code  Ala.,  §  2641,  providing  for  the  recovery  of  punitive  dam- 
ages in  case  the  death  of  a  penon  is  caused  by  the  wrongful  act  of  another, 
tus  no  application. 

9.  That  the  rule  of  law  in  Alabama  requiring  traios  moving  backward  to 
have  a  watchman  on  the  lookout  to  guard  agninst  danger  does  not  apply, 
but  the  caae  is  governed  by  Code  Ala.,  gj  1699,  17DD,  which  requires  a  raiU 
road  company  when  putting  a  train  in  motion  to  blow  its  whistle  or  ring  its 
bell,  and  to  continue  to  do  so,  and  that  the  burden  of  proof  is  on  the  de- 
fendant to  show  tbat  it  fulfilled  the  said  requirements. 

8.  That  plaintiff's  action  in  going  to  the  place  of  danger  between  the  two 
cars  was  such  contributory  negligence  as  to  defeat  her  recovery. 

Appeal  from  eircnit  conrt,  Colbert  county. 

Action  against  railroad  for  damages  for  personal  injury. 

The  injury  for  which  the  appellee.  Elizabeth  King,  brought  this 
Bait,  was  received  by  her  June  2S,  1984,  while  standing  upon  a 
eide-track  of  the  Memphis  &  Charleston  H.,  of  whicli  the  appellant 
was  lessee,  at  Leighton,  an  incorporated  town  and  station  upon 
said  road  in  Colbert  county,  Alabama.  This  side-track  ran  from 
east  to  west,  and  was  enough  dowTi-grade  for  the  cars  to  move 
westward,  nnlesB  held  in  place  by  brakes.  At  the  time  of  the 
accident  there  was  upon  the  track,  at  its  eastern  end,  an  engine 
and  two  cars.  West  of  the  engine  and  cars  was  a  public  road 
81  A.  &  E.  R.  Caa.— 35 


^d  by  Google 


386      EAST  TENNESSKE.   VIRGINIA,    KTC,    E.   OO.  V.    KI.^!Q. 

eroesing.  A  few  feet  west  of  tlie  pulilic  crosBing,  which  had  1>ecu 
kept  open,  were  two  flat  cars,  and  a  short  distance  west  of  these 
two  cara  was  a  section  of  box  and  flat  cars,  the  most  westward];  of 
which  was  a  flat  car,  which  Btrnck  the  plaintiff.  West  of  this,  a 
distance  of  about  4  feet,  stood  the  cook-car  of  a  construction  train, 
connected  with  otiier  cars  to  its  west.  In  this  space  of  fonr  feet, 
between  the  cook-car  and  the  care  to  its  east,  the  plaintiff  was 
standing,  talking  to  a  woman  on  the  platform  of  the  cook-ear,  at 
the  time  she  received  the  injury,  trainediately  south  of  this  spot 
was  the  cotton  platform,  from  two  to  five  feet  high,  and  north  of 
it  was  the  main  track,  and  there  was  no  public  crossing  or  high- 
way at  this  spot.  The  accident  occurred  in  this  way:  Tlie  engine 
and  care  east  of  the  public  crossing  backed  westwardly,  at  the  rate 
of  about  &  mile  an  hour,  across  the  public  crossing,  to  make  a 
coupling  with  and  pull  forward  the  two  fiat  cars  standing  west  of 
the  crossing,  and  in  making  this  coupling  the  two  flat  cars  were 
impelled  against  the  section  of  box  and  fint  cars  west  of  them, 
which  set  tnese  cars  in  motion,  and  plaintiff  was  caught  between 
the  most  westwardly  of  these  cars  and  the  cook-car  of  tlie  con- 
struction train. 

Tlie  testimony  ou  the  part  of  the  plaintiff  tended  to  show  that 
no  signal  of  the  moving  of  the  engine  was  given  before  tlie  acci- 
dent, either  by  ringing  the  bell,  or  blowing  the  whistle,  or  other- 
wise, and  that  there  was  no  brakeman  or  watchman  on  the  section 
of  loose  ears  which  struck  the  plaintiff.  On  the  part  of  the  de- 
fendant, the  testimony  tended  to  show  that  the  whistle  was  blown 
three  times  as  the  engine  commenced  to  back,  and  the  bell  was 
rung  while  backing,  and  on  one  of  the  cars  attached  to  the  engine 
was  a  brakeman  at  bis  post,  and  a  flag-inan  and  switchman  were 
stationed  by  the  two  flat  cars  with  which  the  coupling  was  to  be 
made,  and  that  plaintiff  was  not  seen,  and  could  not  be  seen, 
where  she  was  standing,  by  the  employees  of  the  defendant  who 
were  conducting  and  lookinc;  after  the  coupling  of  said  cars. 
There  was  testimony  that  plaintiff  was  warned  of  her  dansrcr  by 
persons  standing  near  her  at  the  time  of  the  accident,  and  there 
was  testimony  to  tiie  contrary. 

The  defendant  pleaded,  in  short,  by  consent,  "  not  guilty,"  and 
contributory  negligence  on  the  part  of  the  plaintiff.  The  defend- 
ant specially  and  separately  excepted  to  each  of  the  following 
portions  of  t!ie  general  charge  of  the  court,  marked,  respectively, 
'"A,"  "B,"  and  "C:"  A.  "  But  plaintiff  Bays  that  the  defendant 
is  guilty  of  negligence  in  not  having  some  one  at  the  rear  of  the 
car  to  give  warning  to  persona  on  the  track,  and  in  not  having  the 
brakes  on  the  cars.  This  is  a  question  for  yon  to  decide.'"  B. 
"If  you  believe,  from  the  evidence,  that  defendant  was  guilty  of 
negligence  in  failing  to  place  a  lookout  on  the  train  oi  cars,  or 
have  the  brakes  applied,  and  tliat  such  injury  resulted  from  such 


^d  by  Google 


TRESPA8SEE  ON  TRACK— CONTBIBUTOEY   NEOLIGENOB.    387 

failure,  plaintiff  woald  be  entitled  to  recover,  uiilesa  plaintifi,  by 
lier  own  negligence,  contributed  to  her  own  injary,"  C.  "  If  you 
'&ad  for  the  plaintiff,  yon  will  aeeees  her  damages  at  such  sum  as  yoo 
may  think  elie  is  entitled  to  recover,  under  the  proof,  and  not  ex- 
ceeding the  sum  of  $499." 

The  court,  on  the  request,  in  writing,  of  plaintifE,  gave  the  follow- 
ing chains,  to  each  of  which  the  defendant  separately  excepted : 
"  (l)  In  tiie  employment  of  steam  as  a  motive  power,  railroad  coin- 
panies  are  held  to  the  exercise  of  extraordinary  diligence — that  de- 
gree of  dili^nce  which  very  careful  and  prudent  men  exercise  in  the 
conduct  of  their  own  private  affairs;  and  this  requires  tliat  they 
fihall  employ  very  carefnl  and  prudent  men,  and  that  the  persons 
«mployed  by  them  shall  exercise  such  care  and  diligence  as  very 
-careful  and  prudent  men  exercise  in  the  conduct  of  their  own  pri- 
vate interest^  and  important  enterprises.  (2)  The  purpose  of  the 
statute  under  which  this-suit  is  brought  is  compensatory  and  puni- 
tive, not  only  to  give  compensation  to  the  injured  person,  but  its 
pnrpose  is  to  inflict  pnniebment  on  tlie  corporation  or  person  who 
inflicts  the  injury,  to  stimulate  to  greater  diligence ;  and,  if  the 
jury  find  for  the  plaintiff  they  will  assesB  such  damages  as  they 
deem  just  under  tlie  circumstances,  not  to  exceed  the  amount 
olaimed.  (3J  If  the  jury  tieiieve,  from  the  evidence,  that  the  injury 
was  caused  ny  the  negligence  of  the  railroad  company,  to  whicii 
the  plaintiff  did  not  contribute  proximately,  then  the  plaintiff  is 
entitled  to  recover.  (4)  If  the  manner  of  the  witnesses  (naming 
two  of  defendant's  witnesses,  Goodloe  and  Rutland)  were  such  ae 
to  Batiefy  the  jury  that  they  testified  falsely,  then  the  jury  may 
discard  tiieir  testimony." 

The  defendant  requested,  in  writing,  the  following  chaises, 
which  were  refused  by  the  court,  and  to  the  refusal  of  each  of 
which  the  defendant  separately  excepted:  "(1)  If  the  jury  be- 
lieve tiie  evidence,  they  will  find  for  the  defendant.  (2)  Tiie  act 
of  1872,  which  is  now  section  2641  of  the  Code,  has  nothing  to  do 
witli  this  case;  and  there  can  be  no  recovery  of  damages,  in  tliis 
case,  punitive  in  their  nature,  or  as  a  aolaiium  to  plaintiff's  in- 
juries. (3)  Tliis  is  a  suit  for  personal  injuries,  not  for  injuries 
whicii  have  resnlted  in  death,  and  there  are  no  damages  which  can 
be  awarded  in  this  ease  by  way  of  pnnishraent,  (4)  There  can  be 
no  recovery  in  this  case  of  damages  for  plaintiff's  mental  agony  at 
the  time  of  the  irijnry,  or  at  any  time  since.  (5)  There  can  he  no 
recovery  in  this  case  for  punitive  or  exemplary  damages.  (6)  Gross 
negligence  is  negligence  amounting  to  reckleasncss, — that  is,  to  a 
degree  wliere  a  generally  malicious  or  malignant  purpose,  careless  of 
consequences,  might  perhaps  be  presumed,  althongh  no  hostile  pur- 
pose was  entertained  against  an  individual ;  and  if  the  jury  believe 
the  evidence  in  this  case,  unless  tiiey  find  the  defendant  was  gnilty 
of  gross  negligence,  they  are  bound  to  render  a  verdict  in  favor  of 
the  defendant.  ...  (it)  The  fuilnre  of  the  railroad  company  to 


^d  by  Google 


388      EAST  TENNESSEE,    VIRGINIA,   ETC.,    E.   CO.   V.    KINO. 

have  any  one  stationed  at  the  point  where  the  plaintiff  was  iw 
jnred,  as  a  Joobont  or  watchman,  was  not  negligence ^ct-  ae  in  tliia 
case.  (10)  It  was  not  the  duty  of  the  railroad  company  to  have 
a  flag-man  or  wat^htnan,  or  other  agent  or  lookout,  at  the  point 
where  the  plaintiff  was  injured;  ana  the  failure  of  the  railroad 
company  to  have  any  such  pcreoii  at  such  point  wafi  not^?er  se 
negligence,  ,  .  ,  Although  tlie  jnry  should  find,  from  the  evi- 
dence,  that  the  defendant  had  none  of  it£  Eervaiits  or  employees 
near  the  plaintiff  ae  she  Btood  between  the  care  on  its  track,  that 
did  not  constitute  negligence  on  the  part  of  t!ie  defendant.  It  is 
not  required  of  railroad  companies  that  they  must  uke  upon 
themselves  the  care  or  protection  of  persons  whenever  they  choose 
to  enter  upon  and  occupy  their  tract ;  or  that  they  must,  from 
fear  of  doing  hurt  to  such  persons,  refrain  from  using  their  own 
premises  in  any  lawful  manner  beneficial  to  themselves.  There- 
fore, anlesB  the  jury  believe,  from  the  evidence,  that  the  injury  to 
plaintiff  was  the  result  of  the  positive  misconduct  or  careleeeness 
of  the  defendant,  its  agents  or  servants,  they  are  bonnd  to  render 
a  verdict  for  the  defendant," 

Humes,  Gordon  <&  Shefy  for  appellant, 

J.  B.  Moore  and  James  Jackson  for  appellee. 

Stone,  0,  J. — The  act  "to  prevent  homicides,"  approved  Feb- 
ruary 5,  1873  (Sess.  Acts  1872-73,  p.  83),  is  now  section  2641  of 
the  Code  of  1876.  It  provides  for  civil  redress,  when 
ooDmaTUTu-  death  ensnes  from  the  "wrongful  act  or  omission  of 
another."  Such  redress  was  uTiknown  to  tlie  common 
law.  To  come  within  its  provisions,  there  must  be  a  homicide, 
the  result  of  the  wrongful  act  or  ■omission  of  another.  If  death 
does  not  follow,  the  statute  lends  no  aid  to  the  case.  It  must  then 
be  governed  by  the  principles  of  the  common  law  and  our  general 
statutes  on  the  subject,  which  determine  when  and  to  what  extent 
civil  redress  can  be  recovered  for  personal  iiijuiies  less  than  fatal, 
which  were  caused  by  the  negligent  conduct  of  another.  The 
meaanre  of  recovery,  whether  simply  compensatory,  or  punitive, 
— sometimes  called  exemplary, — depends  on  the  degree  of  negli- 
gence, whether  simple  or  gross.  McAipiiie  v.  Alabama  G.  S.  R. 
Co.  {in  MSS.).  Section  2641  of  the  Code  has  nothing  to  do  with 
this  case. 

In  Savannah  &  M.  R.  Co.  v.  Shearer,  58  Ala.  672,  and  in  Soutli 
&  N.  A.  R.  Co.  V.  Sullivan,  59  Ala.  272,  we  declared  that,  in  cei^ 
ctsEooTBuiD  t^i'i  conditions,  trains  moving  backward  should  main- 
i™"*™'"™  t^n  »  watchman  or  lookout,  to  guard  against  dauMr. 
com.  ^jjg  injury  complained  of  in  this  case  does  not  fall 

within  that  rule.  In  addition,  the  switchman  was  in  a  position  to- 
warn  all  persons  of  proximate  danger  to  be  apprehended  from  the 
backing  train  ;  and  thus  the  rule,  if  applicable  to  this  case,  would 


^d  by  Google 


TEESPASSEE  ON  TRACK — CONTEIBUTOKY    NEGLIGENCE.    389 

eeem  to  liave  been  complied  with.  Tlie  rule  does  not  extend  to 
SDcli  conBeqiiential  injuries  as  are  complained  of  in  this  case.  The 
present  ease  is  governed  by  sections  1699  and  1700  of  the  Code 
of  1876. 

Having  shown  that  section  2641  of  the  Code  has  nothing  to  do 
with  this  case,  it  follows  that  several  rulings  of  the  circnit  coarC 
were  erroneona.  Among  them,  we  mav  specify  charge  2  given  at 
the  instance  of  plaintiS,  and  all  other  niliiige  which  treat  that  sec- 
tion of  the  Code  as  bearing  on  the  questions  raised.  The  lirst 
paragraph  of  charge  2  asked  by  defendant  also  asserts  a  cori'ect 
legal  proposition.     We  will  consider  its  second  clause  further  on. 

Having  shown  that,  under  the  facts  of  this  case,  there  was  no 
special  duty  resting  on  the  management  to  have  a  watchman 
stationed  near  the  opening  where  plaintiff  received  her  injury,  tlie 
oonrt  should  not  have  given  the  portions  of  the  general  charge 
excepted  to  as  A  and  B,  and  should  have  given  charges  9  and  10 
asked  by  defendant.  Cliarge  10  asked  by  defendant  asserts  a 
correct  legal  proposition,  although  one  of  its  clauses  is  objectiona- 
ble as  being  argumentative, — the  clause  commencing,  "  or  that 
they  mnst,  from  fear,''  etc.     That  clause  shonld  be  eliminated. 

The  questions  raised  by  the  testimony  are  the  following :  Did 
the  defendant,  when  putting  its  train  in  motion,  blow  bi^wdio  wh»- 
ita  whistle  or  ring  its  bell,  and  continue  to  do  bo  i  The  'StS^S^i^^ 
burden  was  on  the  railroad  of  satisfying  the  jury  it  did  ""kmo ™4di, 
this.  If  the  jury  are  reasonably  convinced  by  the  testimony  that 
this  was  done,  then  the  plaintiff  cannot  recover.  If  the  jury  are 
not  satisfied  this  was  done,  then  their  next  inquiry  is,  did  this 
failure  cause  plaintiff's  injury?  Wonld  she  probably  have  escaped 
injury  if  the  signal  of  motion  had  been  given  1  In  connection 
with  this  is  also  the  inquiry,  did  she  contribute  proximately  to  the 
injury  she  suffered  J     If  she  did,  this  also  defeats  her  action. 

The  first  charge  asked  for  defendant  was  that,  if  the  jury  be- 
lieved the  evidence,  they  must  find  for  defendant. 
This  charge  was  praper  only  in  the  event  the  testimony  ™iijo»ice  or 
most  favorable  to  plaintiff  convicted  her  of  proi^imate 
contributory  negligence.  There  is  conflict  in  the  testimony  which 
cannot  be  reconciled ;  but  none  of  the  witnesses  ^^ry  in  their  state- 
ments of  the  ci renins t an ces  under  which  plaintiff  entered  the  little 
opening  between  the  cars,  and  stood  upon  the  track,  nor  the  pur- 
pose for  wiiiuh  she  did  so.  All  agree  m  stating  she  went  of  her 
own  accord  on  her  own  business  or  pleasure,  and  there  is  no  testi- 
mony from  which  it  can  be  inferred  that  any  of  the  employees  of 
the  railroad  knew  sh6  was  there,  or  eonld  have  known  it  withont 
walking  a  considerable  distance  along  the  track.  Viewed  in  the 
most  favorable  light  for  her,  the  plaintiff,  according  to  the  testi- 
mony, was  guilty  of  negligence  in  being  where  she  was.  and  that 
negligence  contributed  proicimately  to  the  injury  she  complains  of. 


iiz^dbvCoOglc 


890         LOUISVILLE  AND   NASHTILLE   K.    CO.   V.   COLMAH. 

This  prineiple  is  fully  anstained  by  the  following  authorities :  Van 
Soliaiek  v.  Hndsoii  Eiver  R.  Co.,  43  N.  T.  527;  PzoHa  v.  Mich- 
igan Cent.  R.  Co.,  54  Mich.  273  ;  s.  c,  19  Am.  &  Eug.  R.  R.  Ca«. 
331;  TiiUy  v.  Fitchbnrg  R.  Co.,  134  Maes.  499;  b.  c.  14  Am.  & 
Eng.  R.  R.  Caa.  683  ;  Dun  v.  Seaboard  &  R.  R.  Co.,  78  Va.  645  f 
6.  c,  16  Am.  &  Eiig.  R.  R.  Cas.  363;  Memphis  &  C.  R.  Co.  v. 
Copeland,  61  Ala.  376 ;  Railroad  Co.  v.  Letcher,  69  Ala.  106  ;  s.  c, 
12  Am.  &  Erg.  R.  R.  Cas.  115 ;  Thomuaon  v.  Duncan,  76  Ala. 
334;  Montgomery  &  E.  R.  Co.  v.  Tiiompson,  77  Ala.  458. 
Charges  1  and  2  ought  to  have  been  given. 

Whai  we  have  6aid  above  will  probably  be  decieive  of  this  case. 
We  need  not,  therefore,  consider  the  question  of  damages.  The 
doctrine  is  fully  discussed  in  the  following  cases,  from  which  we 
have  no  wish  to  depart.  Barbonr  Co.  v.  Horn,  48  Ala.  566; 
South  &  ¥.  R.  Co.  V.  McLendon,  63  Ala.  266 ;  Lienkauf  v.  Morris, 
66  Ala.  406 ;  Wilkinson  v.  Searcy,  76  Ala.  176  ;  Sooth  &  N.  R. 
Co.  V.  Hufiman,  Id.  492. 

There  is  no  testimony  in  thie  case  to  authorize  vindictive- 
damages.  '  Reversed  and  remanded. 

Duty  of  Railroad  to  Tntpausra. — See  Palmer  r.  Chicago,  etc,  R.  Co., 
and  note,  tupra,  p.  864. 


Louisville  unt  Nabhtillb  R.  Co. 


(Adeance  Com,  Eentueky.     JaiMory  17,  1688.) 

Plaintiff's  inteBtate,  while  walkiog  npon  the  maio  track  of  the  defendant 
Tulroad,  beiog  aware  of  a  train  approaching  him  from  behind,  left  the  nudn 
track  where  a  aide  track  branches  off,  the  switch  at  the  time  being  closed, 
and  walked  along  the  side  track.  As  the  train  passed  the  switch,  it 
switched  off  a  car  on  to  the  side  track.  The  engineer,  seeing  that  the  tres- 
passer was  in  danger  of  being  run  down  by  the  moving  car,  sounded  his 
whistle  and  shouted  to  him,  but  the  decedent  either  did  not  hear  or  mia- 
constnied  the  signals.  The  conductor  of  the  train  was  upon  the  detached 
car,  and  seeing  that  decedent  piid  no  attention  to  the  engineer's  warningB, 
ran  to  the  forward  end  of  the  car  and  shouted  to  him.  Seeing  that  dece- 
dent did  not  hear  him  he  ran  to  the  brake  but  before  he  could  stop  the  car 
the  decedent  was  run  over  and  killed.  Held,  that  there  was  sufficient  evi- 
dence of  defendant's  negligence  to  take  the  case  to  the  jury. 

Appbal  from  cirenit  court,  Warren  county. 

Action  by  P.  A.  Cook,  administrator  of  James  Colman,  de- 
ceased, against  tJie  Louisville  &  Nashville  R.  Co.,  to  recover  dam- 
ages for  the  negligent  killing  of  plaintiffs  intestate.     There  waa 


^d  by  Google 


TE£8FA83Efi  ON  TKAO£ — NEGLIOIINOK.  3D1 

A  trial  by  jury,  verdict  and  jndgnaeDt  were  for  plaiatiS,  and  de- 
fendant appeak. 

Wm.  LiTidaay,  H.  W.  Bruce  and  Mitchell  <fe  Jhi  Soae  for  ap- 
'  pellanr. 

Wright  db  McElroy  and  P.  F.  Edwards  for  appellee. 

Bennett,  J. — The  appellee,  P.  A.  Cook,  as  the  administrator  uf 
Jamee  Colmaii,  deceased,  iiled  iiia  petition  in  tlie  Warren  circuit 
court  against  the  appellant,  to  recover  damages  for  the  killing  of 
his  inCestiite.  The  appellee  alleged,  in  Bubstance,  that  the  a)>- 
pellanc's  employees  and  servants,  in  charge  of  one  of  Wicn. 

its  trains  of  cars,  bj  tlieir  wilful  and  gross  negligence,  rati  one  of 
its  freight  cara  against  his  intestate,  whereby  he  was  injured,  fruin 
which  injury  he  died  in  a  few  lioiira  afterward.     The  appulhiiit 

Ent  in  issue  the  allegations  of  negligence.  The  appellant  also  at- 
iged,  in  substance,  that  the  appellee's  intestate,  at  the  time  he  i-e- 
ceived  the  injury,  was  a  trespasser  upon  its  railroad  track;  and 
that  the  iuiary  received  was  caused  by  his  own  negligence,  and  not 
by  the  negligence  of  the  appellant.  The  appellee  by  his  reply  put 
in  issue  these  affirmative  allegations.  Thei-e  were  three  jnry  trials 
of  the  case.  The  fii?t  resulted  in  a  liung  jnrj ;  the  second  resulted 
in  a  verdict  for  the  appellee  of  $4500,  which  verdict,  at  the  in- 
stance of  the  appellant,  was  set  aside  by  the  trial  court,  and  a  uew 
trial  awarded;  tlie  third  resulted  in  a  verdict  for  the  appellee  of 
$3000.  The  trial  court  liaving  overruled  the  appellant's  motion 
for  a  new  tinal,  the  case  is  here  by  an  appeal. 

The  moat  importaitt  question  to  be  determined  relates  Vo  the  re- 
fusal of  the  lower  court  to  instruct  the  jury,  peremptorily,  to  find 
for  the  appellant.  This  necessitates  a  review  of  the  evidence;  for 
if  the  evidence  made  out  no  case  against  the  appellant,  then  its 
motion  should  have  prevailed.  On  the  otiier  hand,  if  the  evidence 
did  make  out  a  case  against  tiie  appellant,  its  motion  was  properly 
overraled.  We  mean  by  the  exproesion  "  making  out  a  case  thai 
competent  evidence  went  to  the  jury  which  tended  to  show  that 
the  appellee's  intestate  was  injured  and  killed  by  the  wilful  and 
gross,  or  ordinary,  negligence  of  the  appellant. 

The  facts  arc  that  the  appellee's  intestate  was  walking  on  the 
appellant's  railroad  track  ;  that,  while  thus  walking  on  the  track, 
he  came  to  where  the  appellant's  side  track,  wliich  was  used  for 
switching  its  cars,  intersected  the  main,  track  ;  that  the  appellant's 
freight  train  was  juat  behind  the  appellee's  intestate,  moving  in  the 
same  direction;  that  the  engineer  sounded  the  steam-whistle  the 
usual  distance  from  this  switch,  which  indicated  that  the  train 
would  stop  at  the  station,  which  was  hard  by;  that  appellee's  in- 
testate then  quit  the  main  track,  and  continued  to  walk  between 
the  side  and  main  tracks,  the  space  between  the  two  tracks  being 
about  eight  feet.     It  is  evident  that  he  was  induced  to  quit  the 


^dbvGoO^lc 


392        LOUISVILLE  AND   NASHVILLE  E.   CO.   V.    COLMAN. 

maiD  track  and  walk  between  the  two  tradiB  br  the  eoanding  of 
(he  whistle,  which  indicated  that  the  train  wonld  stop  at  the  sta- 
tion, and,  bj  so  doinv,  he  wonld  be  out  of  its  way.  l^his  concln- 
sion  is  forfeited  by  the  fact  that  the  side  track  at  the  intersection, 
at  the  time  the  intestate  reached  it,  was  not  closed  with  the  main 
track,  BO  as  to  allow  the  train  to  paes  upon  it.  The  appellant, 
while  the  train  was  moving,  and  before  it  reached  the  switch,  dis- 
connected a  flat  car  from  the  train,  and  tlieu  the  engine  continncd 
to  move  on  the  main  track  until  it  passed  the  place  where  the  side 
track  intersected  the  main  track.  The  switch  was  then  closed  liv 
ths  brakeinan,  and  the  disconnected  fiat  car  moved  upon  it  by  ils 
own  momentum.  The  engine,  after  ft  passed  the  switch  intersec- 
tion with  the  main  track,  passed  the  intestate  while  he  was  walk- 
ing between  the  two  tracks,  Tlie  engineer  discovered  th^  intes- 
tate's position  just  before  he  passed  him  and  kept  this  eye  upon 
him  until  after  be  had  passed  him.  After  passing  the  intestate, 
the  engineer  saw  bim  start  diagoiiallj  across  the  side  track,  as  if 
to  get  on  the  outside  of  it;  bnt  instead,  he  continued  his  walk 
on  the  end  of  the  ties  just  outside  of  the  rail.  It  then  occnn-ed 
to  the  engineer  that  the  intestate  was  in  danger  from  the  flat  car 
that  was  moving  on  the  said  track,  a  short  distance  behind  him. 
The  engineer,  for  ibe  purpose  of  calling  the  attention  of  the  intes- 
tate to  his  danger,  blew  his  stock  or  alarm  whistle,  but  the  whistle 
was  blown  after  the  engine  had  passed  the  intestate  on  the  main 
track.  The  blowing  of  the  whistle  did  arrest  the  attention  of  the 
intestate.  The  engineer  then  called  to  him  in  a  lond  voice  to  get 
off  the  track,  bat  it  is  evident  that  the  intestate  did  not  hear  the 
call,  for  the  engineer  was  then  blowing  ofE  steam  from  the  boiler, 
and  the  intestate  continued  to  walk  on  the  end  of  the  ties.  It  is 
also  evident  that  the  intestate  was  misled  by  the  blowing  of  the 
stock  or  alarm  whistle,  for  this  is  intended  to  alarm  stock  or  persons 
on  the  track  ahead  of  the  train,  and   the  intestate's  attenbon  was 

Erobably  directed  that  way,  instead  of  the  danger  that  threatened 
im.  It  is  also  evident  that  the  intestate  believed  that  the  whole 
train  was  moving  on  the  main  track;  and  that  he  changed  his 
walk  from  between  the  two  tracks  to  the  outside  of  the  side  track, 
in  order  to  be  more  secure  from  danger.  Tbe  conductor  was  on 
the  flat  car;  he  was  at  the  rear  end  of  the  car,  and  standing  by  the 
brake;  he  heard  the  sound  of  tbe  alarm  whistle,  by  which  his  at- 
tention  was  called  to  the  fact  that  tlie  intestate  was  walking  on  the 
end  of  the  ties;  and  that  neither  the  sound  of  tbe  whistle  nor  the 
ehout  of  the  engineer  caused  tbe  intestate  to  change  hie  course, 
and  that  he  would  be  struck  by  the  flat  car,  if  he  continued  on  bis 
conrse.  But  instead  of  putting  on  his  brake  and  stopping  the  car, 
the  conductor  rushed  to  tbe  front  end  of  the  car  and  called  in  a 
loud  voice  to  tbe  intestate  to  get  off  tlie  track  ;  bnt  the  intestate, 
doubtless,  not  hearing  the  call,  for  there  was  considerable  noise 


^dbyGooglc 


TKESPASSEB  ON   TRACK — NEGUGENCK.  398 

oaneed  b^  blowing  the  Bteam  ont  of  the  boiler,  be  eontinaed  to 
walk  OQ  the  eud  of  the  ties.  The  conductor,  seeing  this,  started 
back  to  the  brake  for  the  ptirpose  of  putting  it  on,  in  order  to 
Btop  the  car ;  but  before  he  could  accouipliEL  this  the  intestate 
was  strack  by  the  our,  and  he  died  from  the  ininries  received  iu 
about  thirty  ^oars  afterward.  The  proof  is  clear  that  had  the 
conductor,  npon  hearing  the  alarm  whistle,  and  hearing  the  shout 
of  the  engineer,  and  seeing  that  the  ititeetate  did  not  quit  the 
track,  but  continued  his  course  upon  it,  put  on  the  brake,  the  car 
would  have  been  stopped  in  time  to  save  the  life  of  the  intestate. 
This  he  failed  to  do.  Did  this  failure  amount  to  ordinary  neg- 
lect i 

It  seems  to  us  that  a  conductor  of  ordinary  experience  and  ob- 
servation could  have  readily  taken  in  the  situation  ;  First,  that  the 
intestate  had  reasonable  ground  to  believe,  from  the  fact  that  the 
switch  at  the  intersection  was  not  connected  with  the 
main  track,  that  the  train  would  continue  on  the  main  o^Z^ o?hSi? 
track,  and  tiiat  he  left  the  main  track  in  order  to  be 
out  of  danger  ;  second,  tiiat  his  back  being  toward  the  ti-din  and 
seeing  the  engine  pass  him  on  the  main  track,  he  believed  that  it 
was  drawing  the  whole  train,  and  he  was  therefore  out  of  its  wiiy-; 
third,  the  blowing  of  the  stock  or  alarm  whistle,  after  the  engine 
had  passed  him  on  the  main  track,  would  cause  him  to  look  ahead  of 
him,  instead  of  behind  him,  for  danger ;  fourtli,  seeing  that  neither 
the  sounding  of  tlie  whistle,  nor  the  shout  of  t)ie  engineer,  caused 
the  intestate  to  change  his  course,  the  condnctor  should,  as  a  rea- 
sonable man,  have  inferred  that  the  intestate  misconstrued  the 
sounding  of  the  whistle,  and  did  not  hear  the  shout  of  the  engi- 
neer, or  that  if  he  did  hear  the  shout  he  misunderstood  it.  It 
seems  to  us,  therefore,  that  the  conductor,  as  a  man  of  ordinary 
prudence  and  experience,  should  not  have  trusted  to  tlie  experi- 
ment of  repeating  the  shouting,  because  both  the  sounding  of  the 
whistle  and  the  previous  shouting  had  failed  to  accomplish  the 
desired  end,  but  should  have  resorted  to  the  sure  and  safe  means 
which  was  at  hand  of  preventing  the  injury,  by  putting  on  the 
brake  and  stopping  the  cars.  For  it  is  well  settled  by  this  court 
that,  although  the  intestate,  by  being  on  the  appellant's  track,  at 
that  particular  place,  was  a  trespasser,  and  that  the  appellant  w:ib 
under  no  legal  obligation  to  look  out  for  liim,  nor  to  anticipate  his 

Ereeence  upon  its  track,  because  it  had  the  right  to  presume  ttuit 
e  would  not  commit  a  tresspass  upon  its  property,  yet,  when  the 
appellant  discovered  that  the  intestate  had  placed  himself  in  peril, 
it  was  its  duty  "to  use  all  reasonable  means  at  its  command  to 
save  his  life."  See  Railroad  Co.  v.  Howard's  Admr.,  6  Ky.  Law 
Itep.  163.  This  doctrine  rests  upon  the  broad  aud  high  ground 
that  the  life  of  the  intestate,  although  he  was  a  trespasser  and 
negligent,  should  not  be  at  the  mercy  of  the  appellee  after  his 


^d  by  Google 


394       ALABAMA   GEEAT  SOUTHERN   E.    OO,   V.   CHAPMAN. 

danger  was  discovered ;  bat  it  bIiohM  use  all  reaeoiiahle  means  at 
its  command  to  save  his  life ;  SQcli  ie  the  regard  of  liiiinan  law — 
the  dictate  of  a  noble  bnmanity — for  the  life  of  a  bnman  being. 

Tiie  instructions  given  at  the  instance  of  the  appellee  and  ap- 
pellant fully  set  fortii  the  law  as  above  laid  down ;  they  fnlly  and 
fairly  present  the  qnestion  of  ordinary  neglect,  on  the  part  of  tlie 
appellant  and  appellee,  to  the  jury.  The  evidence  in  the  case  pnts 
the  question  of  wilfnl  neglect  out  of  the  case.  Therefore,  the 
only  qaestion  to  be  determined  by  the  jnry  was  whether  or  not 
the  appellant  used  all  the  means  at  its  command,  after  it  discov- 
ered the  intestate's  peril,  to  save  his  life.  As  above  stated,  the 
jary  was  fnlly  and  properly  instructed  in  reference  to  that  matter. 
We  therefore  think  that  the  lower  court  did  right  in  refusing  tlie 
appellant's  other  instructions.  We  also  think  that  there,  was  euf- 
ficient  evidence  before  tlie  jury  to  justify  them  in  coming  to  the 
conclusion  that  the  appellant,  under  the  circumstances  of  this  case, 
was  gnilty  of  negligence  in  not  putting  on  the  brake  and  stopping 
the  car,  after  the  peril  of  the  intestate  was  discovered  by  the  con- 
ductor.    We  also  think  that  the  objection  to  the  competency  of 

Cathnan's  answer  to  the  thirteenth  question  in  his  deposition 

was  properly  overruled.  We  also  think  that  the  interrogatories 
propounded  to  the  jury  was  sufficient  to  cover  all  the  questions 
raised  by  the  pleadings  and  evidence,  and  that  the  lower  court 
properly  rejected  the  refused  ones.  The  judgment  of  the  lower 
court  is  affirmed. 

Duty  of  Railroad  to  TraipaiMrt. — See  Palmer  v.  Chicagt^  otc,  R  Oo^ 
and  note,  mipra,  p.  864. 


L  Gbeat  Southern  B.  Co. 


Chapma]j. 

(Advance  Cau,  Alabama.    July  21,  1887.) 

Plaintiff  wliile  walking  along  the  track  of  defendant's  road  obBeired  an 
approaching  train  and  got  down  on  the  end  of  an  enibankinent  just  l>eFore  the 
train  came  along.  Ae  the  train  got  where  sbe  was,  a  cow  came  up  on  the  other 
side  of  the  embankment,  was  thrown  from  the  track  b;  the  engine,  bounced 
down  and  hit  the  plaintiff,  injuring  her.  The  engineer  endeavored  to  stop 
tbe  train  on  seeing  the  cow  but  was  unable  to  do  so.  The  plaintiff  was  not 
seen  b;  the  engineer  owing  to  the  embankment.     Held: 

1.  That  if  the  animal  was  thrown  from  the  track  by  tbe  negligence  of 
those  in  charge  of  the  train  the  injnr;  could  not  be  regarded  as  a  purely 
accidental  occurrence  for  whicli  no  action  iles,  but  must  be  deemed  to  bave 
been  proximately  caused  by  the  negligence. 

2.  That  where,  as  in  Alabama,  the  Btatuto  requires  the  engineer  of  a  train 


^dbvGoo^lc 


TKESPABBEB  ON  TRACK — PBOXIMATE  CAUSE.     395 

to  endeavor,  on  petiMmtig  an  obstruction  on  the  track^  to  stop  the  train  hj 
the  use  of  &11  meana  ia  his  power  known  to  akilfol  engineers,  an  instruction 
which,  in  effect,  authorizes  a  finding  that  he  is  guilt;  of  negligence  in  not 
making  an  attempt  to  stop  the '  train  on  seeing  a  cow,  not  on  the  track,  but  • 
near  it,  or  if,  on  seeing  the  cow,  it  was  so  near  the  train  that  the  use  of  all 
the  means  in  his  power  would  not  have  availed  to  stop  it  before  striking  the- 
cow,  is  erroneous;  as  is  an  instruction  which,  while  requiring  the  use  of  ali 
means  known  to  skilful  engineers,  omits  the  statutor;  element  that  the 
means  which  he  should  use  must  be  within  his  power. 

3.  That  to  walk  on  a  railroad  right  of  waj  is  not  negligence  per  u  espe- 
datly  in  a  town  or  citj  where  passing  and  repassing  are  frequent ;  the  question 
of  due  care  and  contributory  negligence  on  the  part  of  the  plaintiff  is  one  ot 
fact. 

4.  That  a  verdict  and  judgment  for  the  plaintiff  should  be  rerarsed. 

Apfeai.  from  circuit  oonrt,  Snmter  county. 

Action  agaioBt  railroad  compaDy  for  oaniageB  for  pereonal 
injury. 

Tliia  action  was  bronglit  by  Eiiza  Ciiapman  againat  the  Alabama 
Qreat  Soutliern  R.  Co.,  on  July  3,  1884.  It  appears  from  the 
record  that  the  facta  alleged  in  the  complaint,  and  proved,  and  the 
defence  thereto,  are  snbstaiitially,  that  on  AtignBt  15,  1883,  plain- 
tiff started  to  the  depot  at  Livingston,  Alabama,  from  her  home^ 
and  instead  of  going  along  tlie  street,  which  was  parallel  with  iIjc 
railroad  track,  slie  went  along  the  raili-oad  track  a  part  of  the  wuy^ 
then  got  in  a  path  that  runs  along  an  embankment  by  tlie  side  of 
the  track,  and  walked  on  towards  the  depot.  She  got  down  on  the 
end  of  the  embankment,  which  is  14  feet  high,  jnst  before  the 
train  came  along.  The  engineer  did  not  see  her,  as  she  was  hid 
from  hie  view  by  the  embankment,  on  the  end  of  tiie  embank- 
ment, near  a  trestle.  As  the  train  got  where  she  was,  a  cow  came 
up  on  the  other  side  of  the  embankment  from  her,  was  strnck 
by  the  engine,  knocked  from  the  track,  hit  the  ground  or  em- 
bankment, bounced  down,  and  hit  the  plaintiff,  injuring  her,  for 
which  this  action  is  brought.  The  testimony  also  tends  to  show 
that  the  engineer  did  all  he  could  to  keep  off  the  cow,  but  that  he 
bad  a  heavy  train,  was  on  a  steep  grade,  and  could  not  stop  hia 
engine.  This  happened  within  the  corporate  limits  of  said  town. 
The  pleadings  are  voluminous,  but  it  is  not  necessary  to  set  them 
out  here.  The  evidence  also  tended  to  show  the  facte  set  forth  in 
the  following  charges: 

The  plaintiff  requested  the  court  to  give  the  following  among 
other  (tliargee,  which  the  court  did,  ana  to  which  actions  of  the 
court  defendant  duly  excepted : 

"(2)  If  the  jury  believe  from'  the  evidence  that  the  engineer 
failed  to  use  ail  mean?  known  to  skilfnl  engineers  to  stop  the  train, 
and  thereby  prevent  the  injury,  or  if  they  believe  from  the  evi- 
dence that  the  engineer  failed  to  ring  the  bell  or  blow  the  whistle 
of  the  train  on  entering  the  corporate  limits  of  the  town  of  Living»- 


^d  by  Google 


396     ALABA.1U  OBE&T  SOUTHERN   £.    00.    V.  CHAPMAN. 

toil,  and  to  contiune  to  blow  said  whistle  or  ring  the  bell  at  inter- 
vals till  lie  passed  throngh  said  town,  then  this  was  such  negligence 
as  would  make  the  defendant  responsible  for  sach  injuries  as  it  is 
shown  by  the  evidence  the  plaintiff  suffered,  if  said  injnries  were 
the  result  of  each  negUgenoe,  and  the  plaintiff  would  be  entitled 
to  a  verdict,  unless  it  appears  that  she  was  guilty  of  negligence  on 
her  part ;  and  the  fact  that  she  was  on  the  side  of  the  railroad 
track,  if  it  is  a  fact,  would  not  be  such  negligence  as  wonld  prevent 
a  recovery  if  the  jury  find  from  the  evidence  that  she  exercised 
reasonable  diligence  in  trying  to  get  beyond  the  reach  of  danger." 

"  (5)  The  jury,  in  eousiderine  the  question  of  conti-ibutory  negli- 
gence, must  not  confound  condition  with  causes.  The  mere  fact 
tliat  a  pei-son  is  in  an  improper  position,  when,  if  he  had  not  been 
there,  no  damage  would  have  been  done  to  him,  does  not  preclude 
him  from  recovering.  Such  circumstance  is  only  a  condition  to 
the  happening  of  the  danger,  not  -a  cause  of  it;  and  if-  the  jury 
believe  from  the  evidence  that  the  position  of  the  plaintiff,  at  the 
time  slie  was  struck,  was  merely  a  condition  to  the  injury,  and  not 
a  ciiuse  of  it,  and  that  it  had  not  the  natural  tendency,  such  as 
«xists  between  cause  and  effect,  to  place  her  in  the  direot  way  of 
the  danger  which  resulted  in'  the  damage  to  her,  then  the  defence 
of  contributory  negligence  cannot  prevail." 

The  defendant  asked  the  court  to  charge  the  jury,  among  other 
tilings,  tliat  if  they  believed  the  evidence,  they  must  find  for  the 
defendant,  which  the  court  refused  to  do,  and  to  which  the  de- 
fendant excepted.  The  verdict  of  the  Jury  was  for  the  plaintiff, 
from  the  judgment  on  which  the  defendant  appeals,  assigning  the 
above  iictioiis  of  the  eonrt,  and  otlieis,  as  error. 

A.  6.  Smith  for  appellant. 

John  J.  Altman  and  John  H.  LitUe,  contra. 

Clopton,  J. — The  case  presented  by  the  record  does  not  call 
for  the  application  of  the  principles  which  control  when  a  trea- 
QnEgnoir  rss  passer  ou  tile  track  or  right  of  way  of  a  railroad  com- 
™'™^  J^"y  '^  injured  by  personal  contact  witli  the  locomotive 

or  train.  Without  having  Ireen  first  discovered,  the  pinintiff  was 
injured,  while  walking  along  a  path  on  the  right  of  way  of  defend- 
ant, by  being  struck  by  a  cow,  which  was  thrown  from  the  track 
of  the  railroad  by  the  engine.  On  tJie  undisputed  facts,  the  de- 
fendant was  not  guilty  of  want  of  care  or  negligence  in  respect  to 
any  duty  which  the  company  owed  plaintiff  individually.  No 
question  of  wanton  or  reckless  or  intentional  negligence  is  involved ; 
and  instructiouB  ae  to  the  degree  and  character  of  negligence 
requisite  to  liability,  when  a  tres])asser,  who  is  guilty  of  contribn- 
tory  negligence,  is  injured,  are  inapplicable,  tend  .to  mislead  the 
jury  by  multiplying  and  confusing. the  issues,  and  shonld  be  re- 
fused when  asked  by  either  party. 


iiz^dbvCoOglc 


TBEKPASSER  ON  TRACK — PROXIMATE  CAUSE.  397 

It  ie  ineiBted  tliatthe  act  of  defendant  was  only  tlie  remote  caniie 
of  tbe  injnry.  Wlien  the  cow  was  thrown  by  the  engine,  it  struck 
the  gronndf  bounced,  and  fell  againet  plaintiff.  The 
bounce  and  full  of  tin:  cow  was  tiie  immediate  canse,  iS"p»^??t 
but  it  was  merely  incidental,  and.  was  not  an  inde-  S^biti™."' 
pendent  agency,  whidi  liad  no  connection  with  the  act 
of  the  defendant.  The  dii-ect  cause  was  put  in  operation  by  tlie 
force  of  the  engine,  which  continued  until  ilie  injury ;  and  injarieft 
directly  produced  bv  inatrn mentalities,  tlins  put  in  operation  and 
continued,  are  proximate  consequences  of  the  primary  act,  though 
they  may  not  have  been  coiuempiated  or  foreseen.  The  relation 
of  cause  and  effect  between  the  primary  canse  and  the  injuiy  ia 
eetablished  by  the  connection  ana  succession  of  the  intervening 
circumstances.  If  the  cow  was  thrown  from  tlie  track  by  the 
negligence  of  defendant,  the  injury  cannot  be  regarded  as  a  purely 
accidental  occurrence  for.  which  no  action  lies.  East  Tennessee, 
V.  &  G.  R.  Co.  V.  Lockhart,  79  Ala.  815 ;  Alabama  G.  8.  K.  Co. 
V.  Arnold.  2  Soiitii.  Rep.  337. 

There  being  no  negligence  towards  the  plaintiff  personally,  her 
nght  to  a  recovery  depends  upon  the  issue  of  negligence  in  strik- 
ing and  throwing  the  cow  from  t!ie  track.  The  otily 
negligence  averred  and  claimed  oonsiBts  in  the  alleged  ^SmSi  "m 
failnre  of  the  engineer  to  comply  with  the  statutory  ^'J£t"  "^" 
i-equirements  in  regard  to  blowing  the  whistle  and 
ringing  the  bell,  iind  using  ail  means  in  his  power  known  to  skil- 
fal  engineers  in  order  to  stop  the  train.  The  statute  imputes- 
uegligeoce  when  there  is  a  failure  to  comply  with  the  statutory 
requirements,  and  imposes  on  the  company  liability  for  all  damages 
to  persons  or  property  resulting  from  such  failure.  The  coart 
evidently  intended  to  so  instruct  the  jury  ;  but  a  fatal  defect  in  the 
chaises  relating  to  this  aspect  of  the  cafe  consists  in  an  eiToneous 
statement  of  the  statutory  rule,  as  to  when  it  becomes  the  duty  of 
the  engineer  to  use  all  means  in  his  power  known  to  skilful  engi- 
neers in  order  to  stop  the  train.  The  charges  assert  that  a  failnre 
to  attempt  to  stop  the  train,  without  reference  to  the  statutory  cir- 
j^umstances  on  wiiich  the  duty  arises,  is  negligence.  The  statute 
does  not  require  the  engineer  to  endeavor  to  stop  the  train  except 
on  perceiving  some  obstruction  on  the  track  of  the  road.  If  the 
evidence  of  the  engineer  be  believed,  when  he  first  discovered  the 
cow  she  was  about  100  yards  in  front  of  the  train,  down  the  em- 
bankment. On  sounding  the  cattle  alarm,  she  started  up  the 
embankment  toward  the  track.  The  train  was  an  excursion  train, 
loaded  with  people,  and  on  a  heavy  down  grade ;  and  he  was 
unable  to  stop  it  by  the  use  of  ail  the  means  in  his  power.  An 
animal  near  the  road  is  not  an  obstruction  on  the  track,  in  the 
meaning  of  the  statute;  and  if  the  cow  suddenly  and  unexpectedly 
started  toward  the  track  when  the  train  was  so  near  that  the  use 


^d  by  Google 


:lt»S       ALABAMA  GREAT  SOUTHKBN   E.   CO.   V.    CHAPMAN. 

of  all  tLe  tDeaiis  iu  the  power  of  the  engioeer  would  not  Iiava 
availed  to  Btop  the  train  in  time  to  prevent  a  colIiBion,  there  was 
no  violation  of  lite  siatntory  dnty  in  not  making  a  vain  and  useless 
attempt.  East  Tennessee,  V.  &  G.  R.  Co.  v.  l}:iyliss,77  Ala.  429. 
The  Quai^es  of  the  court  opei-ated  to  withdraw  tliis  evidence  from 
ithe  consideration  of  the  jury,  and  to  virtually  instruct  them  that 
notwithstanding  they  might  believe  it,  and  the  inferenoee  which 
mieht  be  drawn  therefrom,  the  engineer  was  guilty  of  negligence 
if  Ee  failed  to  use  all  means  within  his  power  known  to  skilful 
engineers  in  order  to  stop  the  train. 

In  reference  to  this  snbject  tlic  conrt  further  charged  the  jury, 
at  the  instance  of  plaintiff,  that "  the  engineer  is  required  to  use  all 
.means  known  to  skilful  engineei's,  even  greater  diligence  than  the 
j^uirements  laid  down  in  the  statute."  The  negligence  com- 
plained of  is  statutory.  The  legislature  prescribed  tne  require- 
mecits,  a  failure  to  comply  with  which  should  constitute  negligence. 
While  it  is  true,  as  a  general  ni!e,  that  railroad  companies, 
managing  and  operating  trains  by  steam-power,  will  be  held  to  the 
same  degree  of  care  and  diligence  which  careful  and  prudent  men 
use  in  the  management  of  interests  and  enterprises  of  similar  im- 
portance, magnitude,  and  danger,  when  the  statute  makes  that 
negligence  which  is  not  at  common  law,  and  prescribes  its  constit- 
uents, the  courts  cannot  add  tliereto.  The  statute  requires  the 
engineer  to  use  all  moans  within  ins  power  known  to  skilful  engi- 
neers ;  but  the  charge  of  the  court  requires  him  to  use  all  means 
known  to  skilful  engineers,  though  thev  may  not  be  in  his  power 
nor  at  his  command.  A  different  rule  would  apply  if  it  were 
alleged  that  the  injury  was  caused  by  the  negligence  of  the  com- 
pany in  failing  to  provide  suitable  and  proper  appliances  for  the 
purpose. 

As  to  tlie  special  defence  of  contributory  negligence,  it  may  be 
remarked  that  the  question  is  not  whether  plaintiff's  negligence 
caused,  but  did  it  proximately  contribute  to,  lier  injury.  While 
she  may  effectually  contribute  by  putting  herself  iu 
piiinnif'BcoK.  peril,  mere  exposure  to  danger  will  not,  of  itself,  disen- 
uancB.  title  her  to  recover.     She  was  a  trespasser  on  the  right 

of  way  of  the  defendant  when  she  received  the  injury, 
but  this  is  no  defence,  unless  her  negligence  contributed  to  pi-oducu 
it.  To  go  on  the  track  of  a  railroad,  especially  in  a  town  or  city, 
where  passing  and  repassing  are  frequent,  does  not,  of  itself,  con- 
stitute contributory  negligence,  but  may  be  a  condition  i-emotely 
contributing  to  a  subsequent  injury,  and  may  be  the  initiatiTs  of 
contribntoiT  negligence.  Having  voluntarily  assumed  the  risk, 
the  plaintiff  assumed  the  duty  of  observing  due  precautions  against 
danger, — the  duty  of  lookout  and  reasonable  care  and  diligence  to 
avoid  injury.  Whether  the  plaintiff  was  guilty  of  contributory 
negligence  that  diseutitles  her  to  recover,  though  the  defendant 


^d  by  Google 


INJURY   TO   CHILD   tiN  TRACK.  399 

may  hare  been  negligent,  depends  on  the  eoliitioD  of  the  qaeetions 
whether  or  not,  wliile  walking  on  the  track  of  the  railroad,  she 
duly  used  her  senses  of  hearing  and  sight  to  discover  an  approacli- 
ing  train  in  time  to  avoid  danger;  and,  if  so,  whether  or  not,  on 
■discoTering  it8  approach,  she  made  proper  exertions  to  pkce  herself 
beyond  peril ;  not  whether  she  miirely  stepped  oS  the  track  so  that 
the  train  coald  pase  witliouc  striking  her,  but  at  sufficient  distance 
to  aSord  reasonable  safety  from  injury  arising  from  a  casualty 
happening  to  the  train  while  passing.  Nothmg  short  of  this 
would,  in  BHch  case,  be  the  exercise  of  due  care  to  avoid  injury. 
The  defence  of  contributory  negligence  will  fail  or  prevail  as  these 
qnestions  may  be  answered  by  the  jury  in  the  affirmative  or  ne^ 
tive.  Fi-azer  v.  South  &  N.  A.  E.  Co.,  28  Am.-&  Eng.  R.R. 
Caa.  565.  . 

Charge  No.  5,  requested  by  plaintiff,  is  defective  in  ignoring  the 
duty  01  plaintiff  to  exercise  ordinary  care  to  avoid  the  injnry  by 
efforts  oommensurate  with  the  peril  to  which  she  had  voluntarily 
exposed  herself,  and  moreover  is  argumentative.  Reversed  aud 
remanded. 

Duty  of  Railroad  to  TrMpuiera. — See  Palmer  e.  Chicago,  etc,  R  Co.,  and 
mote,  tupra,  p.  364. 


Chioaoo  AMD  Grand  Trdhe  R.  Co. 

iAdmnee  Oaia.  Mkhigan.     June  2S,  1887.) 

Id  8d  action  against  the  defendant  railroad  company  to  recover  damages 
-for  negllgeotly  running  over  tbe  plBintiff,  a  child,  upon  the  track,  tbe  evi- 
dence showed  that  the  engineer  discovered  plaintiS  when  a  half  mile  away, 
but  Huppoied  the  object  seen  was  a  pig  on  the  track.  He  did  not  slacken 
speed  until  it  was  too  late  to  stop  tbe  train,  after  discovering  the  object 
to  be  a  child.  In  the  trial  the  court  was  requested  to  charge  Uie  jury  that 
an  object  lying  between  the  ties,  not  more  than  two  or  three  inches  above,  is 
not  ordinarily  an  object  indicating  danger,  or  calling  for  increased  vigilance 
.  .  .  nor  would  the  engineer  be  required  to  slow  down  the  speed  of  his  en- 
gine until  he  discovered  that  it  would  probably  endanger  the  train  or  paasen- 
■gers,  or  would,  if  a  human  being,  be  itself  in  danger.  &ld,  that  the  charge 
was  properly  refused. 

The  declaration  stated  the  circumstances  of  the  injury,  and  that  plaintiff's 
arms  and  limba  were  broken,  and  then  alleged  that  plaintifF  "  remained  from 
-  that  time  in  a  sick,  sore,  wounded,  bruised,  and  injured  condition,  so  that 
'be  ia  maimed  and  injured  for  life."  Held,  that  this  sufficiently  set  out  that 
plaintifi  sought  damaces  for  sickness  and  disorder,  and  their  attendant  ex- 
penses, and  that  -ovidence  was  properly  admitted  of  the  fact  that  plaintiff 


^dbyGoOglc 


400        KET9EIE  V.    CHICAGO  AND  GEASD  TEHNK   B.    CO. 

WM,  kfter  the  accident,  subject  to  coDvuIsioDs,  fits,  etc.,  and  was  iojured  as 
to  hie  mind. 

After  the  accident,  plaintifF  was  taken  on  the  train  that  injured  htm  and 
carried  to  the  neit  station.  There  the  engineer  raade  a  repurc  nC  the  acci- 
dent to  his  superior  officer  and  staled  the  circumstances  of  its  occurrence, 
which  report  was  required  bv  the  rules  of  the  defendant  company.  Held, 
that  the  statements  then  made  by  the  engineei  are  competent  evidence  as 
to  the  circumstances  of  the  accident. 

The  mother  of  the  child,  who  had  personally  cared  for  it,  was  permitted 
to  iihow  the  appearances  of  sickness,  the  fact  that  he  was  ill,  and  the  symp- 
toms of  the  diBordera  which  appeared  after  the  accident.     JB^,  no  error. 

After  proving  that  before  the  accident  plaintiff  was  a  bright  child,  an  in- 
telligent witness,  not  an  expert,  who  knew  him  well  after  thr  accident,  was- 
allowed  to  answer  the  question  :  "Is  he,  in  jour  opinion,  an  ordinary  bright 
child?"  Also  the  question :  "Prom  what  you  have  aeen  of  him,  and  talked 
with  him,  what  is  your  opinion  as  to  whether  he  is  a  bright  boy  or  foolisbt" 
^^d,  no  error. 

Plaintiff  was  injured  in  July,  1880,  and  in  June,  1885,  a  doctor  was  called 
to  see  him.  On  the  trial  be  was  asked :  "  When  you  got  there  what  condi- 
tion did  yon  find  the  child  iut"  Defendant  objected  that  the  visit  was  too 
remote  from  the  accident  to  be  material.  Htld,  that  aa  there  was  testimony 
that  the  injuries  received  continued  to  time  of  trial,  and  aome  evidence  tb&t 
they  were  permanent,  the  question  was  not  immaterial  upon  this  ground. 

The  child  was  but  two  and  a  half  yeara  old;  hence,  evidence  that  the  rail- 
road was  not  fenced  at  the  place  of  the  accident  was  properly  admitted,  and 
a  charge  that  "the  defendant  is  not  required  to  fence  its  road  at  common 
law,  and  under  our  statute  it  is  only  compelled  to  do  so  to  prevent  cattle 
or  other  animals  from  getting  on  the  road."  ■  &ld,  property  refused.  Tbe^ 
road  is  required  to  be  fenced  for  the  protection  of  children  aa  well  as  to 
protect  cattle  and  other  animals. 

Statements  as  to  how  an  accident  occurred,  made  by  an  engineer  of  a 
train  that  had  just  thrown  plaintiff  from  the'railroad  track,  and  after  nin- 
uing  a  short  distance  bad  backed  to  the  scene  of  the  accident,  and  made  im- 
mediatly  after  the  train  stopped  at  the  place  of  the  accident,  are  a  part 
of  the  rei  geitm,  and  properly  admitted  to  show  bow  the  accident  occurred. 

Eerob  to  St.  Clair  ciroifit  court  to  reviev  a  judgment  in  favor 
of  plniiuiS  in  an  action  brought  to  recover  damages  for  personal 
injuries  resulting  from  negligence.     Affirmed.     . 

T))e  iiietory  and  facts  appear  in  the  opinion.  See,  also,  former 
decision  in  the  case,  56  Midi.  559. 

Ge^"  tfe  WUliaTti^  for  appellant. 

Jame9  Z.  Ooe  for  appellee. 

Shsbwood,  J. — Tiiis  action  is  bronglit  to  recover  for  perBonal 
injuries  received  hy  the  plaintiS,  when  about  two  years  and  six 
ttan.  months  old,  from  a  passing  train  going  east  over  ita- 

road  in  the  township  of  Kimball,  in  the  county  of  St.  Clair.  The 
case  was-before  us  at  the  April  Term,  1885  {see  56  Mich.  659),  and 
a  new  trial  was  granted,  which  has  been  had,  and  the  plaintiff  al- 
lowed to  recover  a  jndgment  for  $7000.  The  defendant  brings 
error,  and  thirty  assignments  are  presented  for  our  consideration. 
They  are,  however,  cussified  and  presented  by  connsel  for  defend- 


ed by  GoOglc 


INJUKT  TO   CHILD   ON  TliAOK.  401 

ant,  in  tbeir  briefs,  under  nine  propositions,  which  will  be  dis- 
cussed in  their  order. 

The  negligence  of  the  defendant  relied  upon  and  alleged  in  the 
declaration  is :  (1)  in  running  its  pasGenger  train  over  its  road  at  a 
high  rate  of  speed  without  keeping  a  proper  lookout;  (2)  negli- 
gcnce  of  defendant  in  not  fencing  its  line  of  road  for  uiore  than 
six  months  prior  to  the  injury ;  (3)  in  omitting  to  give  the  atatn- 
tory  signals  at  the  highway  crossing.  Tlie  esaential  facts  will  bo 
found  stated  in  the  opinion  given  in  the  former  case  in  56  Mich, 
Tlic  testimony  on  several  points  is,  however,  somewhat  different 
from  that  contained  in  the  other  recoi-d. 

The  first  proposition  presented  by  defendant's  counsel  relates  to 
the  statements  made  by  Conger,  tlie  engineer,  siiortly  after  the 
injury  occuiTcd  to  the  child.  Tliose  are  referred  to  in  the  first, 
fourtli,  eleventli,  and  twelfth  assignments  of  error. 

Byron  Buckeridge,  a  witness  for  plaintiff,  testified  that  he  waa 
very  near  the  child  when  the  engine  struck  him  and  threw  liim 
one  side  of  the  track  into  a  pile  of  logs;  that  he  was  there  as  bood 
as  any  one;  that  the  train  did  not  go  far  until  they  stopped  and 
backed  up  and  took  the  child  on  the  train ;  that  Clinton  Conger, 
the  engineer,  and  John  Mcintosh  were  the  only  persons  he  saw 
there  before  the  child  was. put  on  the  train.  T!ie  witness  was  then 
allowed  to  testify,  against  tne  objection  of  defendant  that  the  tes- 
timony was  incompetent,  and  that  any  statement  the  witness  could 
or  might  liave  made  at  that  time  could  not  bind  the  company ;  that 
Conger  stated  why  the  train  did  not  stop,  accoi'ding  to  his  recol- 
lection, tliiit  he  saw  the  child  a  half  mile  ahead  and  thought  it  was 
a  pig.  When  the  train  arrived  at  Port  Huron,  witness  In&lee  tes- 
tified that  he  heard  of  the  child  being  injured  on  the  arrival  of 
the  train ;  tlint  he  was  employed  in  the  meclianical  department  of 
the  road  at  Port  Huron ;  that  the  engineer  and  fireman  are  con- 
nected with  that  department,  and  they  had  to  make  out  a  written 
report  of  any  accident  occurring  on  the  trip  made  by  them,  and 
that  such  report,  at  the  time  this  accident  occurred,  came  to  him 
first;  that  it  was  his  duty  to  attach  the  report  to  the  trip  sheet, 
containing  other  reports,  and  send  them  to  the  heads  of  the  de- 
partment at  Battle  Creek. 

The  witness  was  then  asked  by  counsel  for  the  plaintiff :  "  What 
did  he  {the  engineer)  stale  to  you  in  reference  to  how  be  came  to 
run  upon  the  child  on  ihe  arrival  of  the  train  that  dayl"  And 
the  witness  was  allowed  to  state,  under  a  similar  objection  to  that 
made  to  the  testimony  of  Buckeridge,  "  that  in  coming  down  the 
hill  after  leaving  Thornton  he  saw  some  object  between  the  rails, 
and  supposed  it  to  be  a  pig,  and  did  not  know  what  it  was  until 
he  got  verj  close  to  it,  and  it  raised  up  and  faced  his  engine,  and 
he  did  not  have  time  to  stop.  He  applied  the  brakes  and  reversed 
81  A.  &  E.  R  Cm.— 2Q 


^d  by  Google 


4(e        KETSER  V.    CHICAGO   AND  GRAND  TRUHK   R.   CO. 

the  engine,  but  conld  not  stop.    He  said  lie  was  about  half  «  mile 
away  when  he  tiret  saw  it,  and  tliouglit  it  was  a  pig. 

■ITie  remaining  two  queetions  upon  this  subject  were  propounded 
to  witnees  Conger  white  he  was  giving  his  testimony  for  the  de- 
fendant upon  his  crosB-exaininatioii.  1.  "Did  you  not  tell  Byron 
Backeridge  and  others,  at  the  time  3'oii  got  ofi  the  train  and  picked 
up  the  child,  or  they  were  picking  him  up,  that  yon  thought  it 
wasapig;  you  saw  ithalfamile  oSV  2.  "Have  yon  not  been 
around  to  see  Byron  Buckeridge  and  talk  with  him  several  timef^ 
about  it  before  this  week  ?"  The  questions  were  objected  to  as 
immaterial.  To  the  first  question  tiie  witness  answered  in  the 
negative,  but  admitted  that  he  might  have  told  witness  Inalee  so 
on  his  arrival  at  Port  Huron.  To  the  second  he  answered  that  he 
]iad  talked  with  Buckeridge  twice  on  one  branch  of  the  eubject. 

The  questions  upon  the  cross-examination  were  proper,  as  tend- 
ing to  sliow  that  the  witness  had  a  different  understanding  when 
the  accident  occurred,  and  the  version  of  the  afiair  was  different 
from  what  he  gave  on  his  direct  examination. 

I  think  these  statements  of  the  engineer,  made  at  the 
m™f?"uT  place  wliere  the  accident  occuri-ed  and  at  the  time  he 
Si>^imSl£  backed  up  the  train  and  took  the  boy  on,  as  to  the 
ci  1*0 nm stances  and  the  reason  he  gave  for  the  manage- 
ment of  the  engine  and  train  in  approaching  tlie  boy,  and  how  lie 
came  to  run  upon  him,  were  so  connected  with  the  acts  complained 
of  as  to  become  a  part  of  the  res  geatcB,  and  the  testimony  was 
properly  received.  There  is  more  question  in  regard  to  iiis  state- 
mente  made  to  Inslee  at  Fort  Huron.  It  is  true  it  was  a  part  of 
the  engineer's  duty  to  give  to  Inslee  a  tnitlifnl  report  of  the  acci- 
dent and  all  the  circumstances  under  which  it  occurred,  and  from 
the  time  the  boy  was  huit  until  the  train  arrived  at  Poi't  Huron 
the  engineer  and  conductor  had  the  child  with  them  on  ihe  cars, 
and  the  company's  liability  for  proper  care  and  safety  of  the  boy 
continued  to  some  extent  nntll  the  tj'ain  arrived  at  that  place. 
which  was  but  eight  miles  from  where  the  accident  occurred.  I 
do  not  nnderstand  that  declai-ations  by  persocis  whose  duty  it  is  to 
make  them,  in  order  to  constitute  a  part  of  the  res  gesite,  are  ro- 
qnired  to  be  precisely  ooncnrrentin  point  of  time  with  the  princi- 
pal  transaction.  If  tliey  spring  from  it  and  tend  to  explain  it,  ai^e 
.voluntary  and  spontaneous,  and  are  made  at  a  time  so  near  as  to 
preclude  the  idea  of  design  to  misi'c present,  they  may  be  regarded 
as  so  nearly  contemporaneous  as  to  be  admissible.  Scaggs  v.  State, 
8  Sm.  &  M.  722 ;  Ins.  Co.  v.  Mosley,  8  Wall.  397 ;  Commonwealth, 
V.  M'Pike,  3  Cush.  181;  Harriman  v.  Stowe,  57  Mo.  93;  Ci-ook- 
bam  V.  State,  5  W.  Va.  510 ;  Booth  v.  State.  26  Tex.  202 ;  Reg. 
V.  Abraham,  2  Car.  &  K.  550;  Hanover  R.  Co.  v.  Coyle,  55 
Pa.  402;  Brownell  v.  Pacific  li.  Co.  47  Mo.  239;  People  v. 
Venion,  35  Cai.  49;  Handy  v.  Jolinson,  5  Md.  450;  Carter  v. 


^d  by  Google 


INJURr  TO  CHILD   OK   TRACK.  40S 

Buchannon,  3  (Ja.  513 ;  Mitcbiim  v.  State,  8  Ga.  653 ;  Coortnev 
1).  Baker,  34  N.  Y.  Super.  Ct.  529;  O'Connor  v.  Chicago,  M.  & 
St.  P.  K.  Co.  27  Minn.  166;  Ai'inii  v.  Chicago,  B.  &.  Q.  E. 
Co.,  28  Am.  &  Eiig.  K.  E.  Cas.  467;  State  ■w.  Horan,  20  N.  W. 
Eep.  905  ;  Lund  v.  TyngBhoioiigh,  9  Cnsh,  36.  I  think  thia  view 
will  be  found,  upon  an  examination  of  the  later  anthoritiee,  to  be 
sustained,  and  such  I  believe  to  be  the  tendency  of  our  own  decis- 
ions so  far  as  any  Iiave  been  made.  Sisfioii  V.  Cleveland  &  T,  E. 
Co.,  14  Mich.  595 ;  Ilabley  v.  Kettleberger,  37  Mich.  262 ;  Cleve- 
land V.  Newsoin,  45  Mich.  63.  See,  also,  Greeui.  Ev.  p.  144,  § 
108,  and  cases  cited. 

Our  attention  is  called  to  what  is  said  by  Mr.  Justice  Champlin 
in  Patterson  v.  Wabash,  St.  L.  &  P.  E.  Co.,  54  Mich.  91,  8.  c,  18 
Am.  &  Enjr.  E.  E.  Cas.  130,  but  it  will  appear  by  an  examination 
of  the  opinion  it  \vaB  held  that  the  statement  of  the  brakeman  was 
no  part  of  the  res  gestee^  "  for  the  reason  that  such  admission  was 
not  made  w}nle  in  the  execution  of  his  duty,  or  while  the  act  to 
which  it  referred  was  being  performed^ and  lie  was  not  so  connec- 
ted with  the  corporation  defendant  as  to  make  bie  admissions  the 
admissions  of  the  defendant."  Not  bo  in  thie  case.  At  the  time 
and  place  this  accident  occurred,  the  engineer  had  complete  con- 
trol of  his  engine  and  management  of  the  same.  He  directed  all 
of  its  movements,  and  the  fireman  and  brakeman,  and  even  the 
conductor,  in  case  of  danger  to  property  or  life  from  obatrnctions 
appearing  upon  the  track,  were  subject  to  his  orders  in  his  efforts 
to  avoid  them.  He  was  not  only  in  the  execution  of  his  duties 
while  passing  over  tlie  road  when  the  plaintiff  was  injured,  but 
during  the  entire  trip  and  until  he  had  made  his  report  of  the  same 
to  Inslee,  and  of  the  circnmstances  of  the  accident  which  had  oc- 
curred. It  required  less  than  sixteen  minutes  to  run  from  the 
place  of  the  acciilciiC  to  Port  Huron,  and  lees  than  fifty  minutes  to 
make  the  run  and  his  report  to  loslee.  He  was  in  the  proper  dis- 
charge of  his  duty  all  this  time,  having  the  injnred  boy  on  the 
train  until  ho  arrived  at  Port  Huron  ;  and  what  lie  did  and  said 
in  the  discharge  of  that  duty,  if  no  more  than  was  required,  I  think 
should  be  regai-ded  as  proper  evidence  against  the  company  so  far 
as  it  had  any  materiality  to  the  case.  It  was  the  statements 
thus  made  to  Iifslee  concerning  the  accident,  and  defendant's 
agency  in  causing  the  injury,  upon  which  the  plaintifi  had  most 
to  rely. 

How  far  the  statements  of  the  agent  are  binding  upon  and  com- 
petent to  be  given  against  the  company,  and  to  what  extent  they 
are  part  of  the  res  gestcs,  depends  upon  the  ciicumstances  of  each 
particular  case;  ana  I  think  the  testimony  of  Inslee,  giving  the 
statements  of  the  engineer  he  did  at  Port  Huron,  was  properly  re- 
ceived. 


^d  by  Google 


404       KEY8EE  V.    CHICAGO   AND   QEANO  TEUBK   R.    CO. 

The  defeDdant's  second  propOBition  is  that  the  company  was  not 
requiied  to  fence  its  right  of  way  to  protect  tliis  ciiild 
DuTT  10  r«iicm  from  coiiiing  upon  its  track,  and  was  giiiity  of  no  neg- 
notcHiLDuii.  lect  in  this  respect.     Tlie  second,  fourteenth,  twenty- 
first,  and   tliirty-sixth  assiginnetite   of  error  relate  to 
this  subject. 

Objection  was  made  to  plaintiffs  testimony  showing  that  the 
defendant's  road  was  not  fenced,  as  iniinuterial,  and  to  the  request 
to  cliarge  that  "  the  defendant  is  not  required  to  fence  its  road  at 
common  law;  and,  under  onr  stutnte,  it  is  only  compelled  to  do  bo 
to  prevent  cattle  or  other  animals  from  getting  on  its  i-oad.  De- 
fendant also  requested  tlie  court  to  charge  tliat "  if  the  jury  believe 
that  a  fence  constructed  of  boards  and  posts  fonr  and  a  half  feet 
high,  witli  the  nsual  openings  in  such  fences,  would  not  have  pre* 
vented  the  plaintifE  from  getting  on  to  the  defendant's  track,  then 
no  fault  can  be  attached  to  the  defendant  by  reason  of  its  neglect 
to  build  tiie  fence,  and  no  damage  should  be  assessed  against  it  in 
consequence  of  such  neglect."  No  error  was  committed  in  refus- 
ing to  give  the  tirst  of  these  requests,  and  the  substance  of  the 
second  was  given.  The  following  charge  upon  this  subject,  given 
by  the  court,  was  also  excepted  to : 

"And  if  yon  are  satisfied,  from  the  evidence,  that  by  reason  of 
or  on  nccount  of  its  failure  to  so  erect  and  maintain  such  fence  at 
the  point  where  you  may  conclude  it  is  i-easonable  to  infer  that 
the  ctiild  went  upon  tlie  ti-ack;  and  if  you  are  convinced,  from 
the  evidence,  that  the  plaintiff  got  upon  the  track,  at  the  time  he 
was  hurt,  on  account  of  the  fence  not  being  there ;  in  other  words 
that  be  would  not  have  done  so  if  such  fence  had  existed  to  im- 
pede his  progress;  and  furthermore,  if  you  believe  that  he  got 
upon  that  track  without  fault  on  the  part  of  those  who  should  be 
beld  accountable  for  his  care  and  custody,  in  consequence  of  the 
neglect  of  the  railroad  company,  as  above  stated,  to  erect  and  main- 
tain the  requisite  fence,  you  would  be  warranted  in  finding  that^ 
there  was  such  negligence  on  the  part  of  the  defendant,  in  thift 
partienlar,  as  would  afford  the  plaintiff  a  remedy  for  the  injuries 
received  by  him." 

I  think  this  a  correct  statement  of  the  law  as  heretofore  held  by 
this  court.  See  this  case  in  56  Mich.  559 ;  Marcott  v.  Marqnette, 
H.  &  O.  R.  Co.  47  Mich.  9 ;  a.  c.  4  Am.  &  Eng.  R.  R.  Gas.  548 ; 
B.  c,  49  Mich.  99  ;  b.  c,  8  Am.  &  Eng.  E.  K  Gas.  306. 

Tlie  statute  requires  the  defendant  to  fence  its  road  with  a  fence 
"  sufficient  to  prevent  cattle  or  other  animals  from  getting  on  such 
railroad."  This  clause  quoted  is  only  deecriptive  of  the  sufficiency 
of  the  stnicture  to  furnish  the  required  protection.  The  duty  of 
the  company  in  this  respect  is  a  positive  one.  The  public,  as  well 
as  the  company,  are  entitled  to  tlie  benefit  and  protection  it  aifords 
against  the  perils  and  dangers  incident  to  tlie  use  made  of  the 


i,z.dbv  Google 


INJUBT  TO   CHILD  ON   TRACK.  406 

ToaJ,  and  it  would  be  etrange  reasoning,  indeed,  that  would  give  to 
the  citizens  living  along  the  line  of  tlieee  roads  tliie  barrier  against 
danger  of  injury  to  "his  cattle  and  other  animals,"  and  deny  it  to 
his  infant  cliildre^i  who  are  not  jet  old  enough  to  enable  tliem  to 
comprehend  such  perils  and  dangers. 

The  Legislatnre  never  intended  any  such  limitation  apon  the 
protection  to  be  furnislied  by  the  fencing  required  by  the  statnte, 
and  no  decision  of  any  court  giving  the  statute  such  a  construction 
can  receive  my  approval.  I  fenow  it  is  said  it  is  the  duty  of  the 
parent  or  guardian  of  such  children  to  restrain  them  from  going 
into  snch  dangers ;  but  the  experience  of  any  man  acquainted  with 
the  large  familes  of  the  poor  in  this  country  is  that  at  best  this 
duty  can  be  only  imperfectly  performed  by  the  parents;  and  that 
it  is  not  uiifi'cquently  the  case  that  these  little  ones  are  seeti  wan- 
dering from  the  immediate  care  of  the  mother,  whose  domestic 
affairs  absolutely  preclude  her  at  times  from  being  with  her  child- 
ren— and  the  present  woald  seem  to  be  one  of  tliose  cases, — and  if 
accidental  injury  overtakes  them,  it  is  a  misfortune,  but  not  negli- 
gence on  her  part.  Kegligence  assumes  ability  to  do  otherwise 
■and  better.     Sue  is  at  least  entitled  to  the  aid  the  law  gives  her. 

The  testimony  received,  showing  the  defendant  had  omitted  to 
fence  its  road,  was  properly  admitted. 

The  defendant's  third  proposition  relates  to  cattle-guards,  and 
the  fact  that  there  was  none  at  the  Keyser  crossing.  I  tind  nothing 
in  the  testimony  relating  to  them  on  the  part  ofthe  plaintiff,  and 
it  does  not  appear  that  anything  was  claimed  for  them  on  either 
side.  The  requests  upon  that  subject  were  therefore'  unnec^sary, 
and  no  error  was  committed  in  refusing  to  give  them, 

I  do  not  think  the  Keyser  road  was  in  any  sense  a  public  high- 
way, but  an  old  lumbering  road  used  for  private  purposes,  and, 
being  nnfenced,  was  frequently  used  by  the  neighboi-s;  and  the 
defendant's  "requests  relating  thereto  were  not  supported  by  the 
testimony  upon  that  subject,  and  were  properly  refused  by  the 
■court.    The  defendant's  fourth  proposition  was  therefore  untenable. 

The  fifth  proposition  relates  to  the  child's  suffering  etibib™  uto 
and   ailments,  and   includes  t!ie  fifth,  sixth,  seventli,  ^"a"''^^'''^^ 
eighth,  and  ninth  assignments  of  error.     The  fifth  as-  '"^ 
aignment  is  upon  the  following  question  put  to  Mina  Keyser: 

Q.  Wliat  trouble  did  he  have  about  his  kidneys  and  wuter  J 

A,  He  could  not  make  water,  and  then  he  swells  and  bloats  up ; 
I  did  not  know  if  he  is  ruptured  or  not;  the  doctoi'S  can't  tell. 
"When  iie  was  swollen  up,  he  was  in  pain.  He  had  fits  also.  Ho 
Lad  them  after  he  was  hurt ;  I  don't  know  how  many  times, — alt 
the  time;  every  three  months, — two  or  three  months, — and  the 
longest  six  months.  He  did  not,  at  any  time  before  his  injnry, 
have  aiiy  fits  nor  any  other  difliculty;  nor  about  his  kidneys  or 
making  water.     He  had  the  last  attack  of  fits,  I  guess,  last  October. 


^d  by  Google 


409       KETSEB  V.    CHICAGO   AND   GRAND  TRUITK   E.    00. 

The  gruDnd  of  the  objection  to  this  qaestion  was  "  that  the  rnat- 
tera  wei-e  not  covered  by  the  declaration."  Mra.  Keyaer  was  the 
mother  of  the  plaintiff,  and  knew  of  his  ailments.  The  teetimpnj 
waa  admissible.  Johnson  v.  McKee,  27  Mich.  473.  It  was  com- 
petent  for  her  to  make  the  answer  she  did.  They  were  facta- 
within  her  knowledge. 

The  sixth  assignment  is  the  objection  taken  to  the  following 
qnestioi'i  propounded  to  witness  Mary  Sclionlty,  relating  to  the 
boj'a  mind  after  receiving  tlie  injnry  : 

"From  what  yon  have  seen  of  him  at  tlioee  times  and  other 
times,  in  your  opinion,  do  you  believe  lie  is  a  boy  that  is  bright 
and  sonnd  in  hie  mind?"  The  answer  given  Wiis,"'W"ell,  I  can't 
exactly  tell.  Sometimes  he  appears  to  be  bright,  and  at  other 
timeB  he  don't  seem  to  be  as  bright  as  otlier  cliilcfren  of  his  age." 

Tbegronndof  objection  to  the  question  relied  upon  was  "incom- 
petency and  immateriality,"  and  witness  "does  not  show  such 
fenovvledge  as  wonid  entitle  her  to  give  her  opinion,"  There  ia 
force  in  this  obieetion,  and  the  exception  wcnld  iiave  to  be  sqb- 
tained  but  for  the  fact  that  the  answer  is  coniined  to  the  appear- 
ance of  the  child,  and  is  bannless.  The  witness  bad  shown  no- 
knowledge  of  tiie  child  before  the  injury  and  but  little  familiarity 
with  him  after  he  was  taken  to  Port  Huron.  Tiie  answer,  how- 
ever, relieves  the  question  of  any  niischieveouB  tendency. 

The  seventh  assignment  relates  to  an  obieetion  on  the  ground 
of  inadmissibility,  under  the  declaration,  to  the  following  question 
propounded  to  Amanda  Baker.  '  You  recollect  seeing  Iiim  at  any 
time  in  a  lit)  Witness  answered:  "Tes, sir;  in  the  mornings 
when  my  folks  was  to  work  1  saw  s'omebody  pass  tlirough  the  yard. 
I  opened  tlie  door  and  saw  Mrs.  Keyser  had  the  little 
— -  l)oy  on  her  arm,  and  was  crying  and  felling  me  she 
tbongbt  ber  boy  was  dead,  and  I  followed  her  home;, 
and  the  boy  was  cold,  and  I  heated  water  and  put  bis  feet  in  warm 
water,  and  I  put  mustard  on  his  feet.  I  seen  he  had  fits.  And 
Mr.  Keyser  called  the  doctor.  I  did  not  count  how  many  &ie  he 
had.  When  Dr.  Northrup  came,  I  went  home.  He  had  more 
than  one  fit  while  I  was  there." 

I  do  not  think  the  question  objectionable  upon  the  ground 
stated.  The  proof  tended  to  show  that  the  child  was  well  and 
healthy  before  the  injury,  and  that  very  soon  tlie!'o;ifter  he  fre- 
quently had  spasms  wliicli  the  witness  described  as  tits,  and  which, 
according  to  the  medical  testimony,  might  be  i-easonably  attributed 
to  t!ie  iniary  caused  by  the  defendant's  engine.  In  using  the  term 
"  fits  "  the  witness  did  no  more  than  describe  certain  physical  man- 
ifestations  she  observed,  indicating  great  sufiering,  and  with  which 
she  was  familiar,  and  in  )ier  answer  gave  the  child's  appearance. 
Willie  the  testimony  showed  that  the  ailment  ri'fened  to  was  not 
the  necessary  consequence  of  the  injury,  it  did  show  that  it  wa& 


^d  by  Google 


IRJURT  TO  CHILD  OH  TRACK.  407 

regarded  aa  tbe  natural  consequence,  and  this  wae  eufGcient  to  bring 
t))e  proof  within  tliat  portion  of  the  declaratioa  alleging  the  injury 
and  its  character  and  extent,  and  whicli  is  as  follows : 

"Tlie  defendant  carelessly  and  negligently  mn  its  engine  and 
train  upon  the  plaintiff  wich  great  force  and  violence,  and  threw 
him  from  Uie  track  aforesaid  upoD  the  ground,  by  means  whereof 
the  legs  of  the  plaintifE  were  broken,  ana  his  arms  were  also  broken 
and  didoeated,  and  his  body  and  head  were  greatly  brniaed, 
broken,  and  injured ;  and  he  wus  otherwise  greatly  hnrt  and 
wounded ;  and  thereby  was  obliged  to  and  remained  from  tliat 
time  liitberto.  in  a  sick,  sore,  wounded,  bruised,  and  injured  condi- 
tion, so  th.tt  he  is  maimed  and  injured  for  life ;  during  all  which 
time  the  plaintiff  suffered  and  continues  to  suffer  great  pain,  and 
was  hindered  and  prevented  from  transacting  and  attending  to  any 
business  and  affaire,  and  will  so  remain  dunng  his  life,  and  lost  and 
waa  thereby  deprived  of  divers  great  gains  and  profits  which  he 
might  and  otherwise  would  have  made  and  acquired,  and  was  put 
to  great  expense  and  did  lay  oat  divers  large  sums  of  money, 
amounting  to  $1000,  in  and  about,  to  be  cured  of  said  injuries  so 
received  as  aforesaid,  and  other  wrongs  then  and  there  received 
from  the  said  defendant,  to  the  damage  of  plaintiff  $20,000." 

It  was  said  by  Cliief  justice  Campbell,  in  Joluisonv.  McKee,  27 
Mich,  472,  under  a  declaration  containing  sulMtantially  the  Bame 
averments  as  tlie  one  in  the  present  case:  "When  the  defendant 
was  informed  that  damages  were  sought  for  sickness  and  disorder, 
and  their  attendant  expenses,  as  well  as  for  wounds  and  bruises,  he 
was  bound  to  expect  evidence  of  "any  Eickness  the  origin  or  aSK'^ 
vation  of  which  could  be  traced  to  the  act  complained  of."  This 
doctrine  applies  with  eqnal  propriety  to  the  case  before  us. 

Tlie  eij<hch  assignment  relates  to  the  following  qaestioni  found 
in  the  testimony  of  Amanda  Baker  :  "  Is  he  (meaning  the  cliild), 
in  your  opinion,  an  ordinary  bright  child?"  Incompetency  and 
immateriality  were  tlie  grounds  of  the  objection.  It  was  claimed 
that  the  injury  to  the  hoy  had  the  effect  to  impair  his  mental  fac- 
ulties. It  was  claimed  befoi-e  thelnjnry  he  was  strong  and  healthy, 
and  a  smart,  intelligent  little  child  ;  and  evidence  was  given  tend- 
ing to  show  that  snob  was  the  fact,  and  that  there  was  a  marked 
difference  in  his  physical  anfl  mental  condition  after  tlieinjary; 
rhat  before  he  was  hurt  he  was  at  least  an  ordinarily  bright  child. 
T!ie  witness  was  well  acquainted  with  him  after  his  injury,  and  it 
is  not  claimed  the  witness  was  not  sufficiently  intelligent  to  speak 
upon  tlie  Biibieet.  I  iiave  no  doubt  but  the  question  was  botli 
eoinpetent  and  material,  and  her  answer  shows  she  gave  her  testi- 
mony with  caution.  The  response  was:  "He  is  not  as  bright  as 
the  rest." 

The  ninth  assignment  is  raised  upon  the  following  question  put 
to  Henry  Baker :  "  From  what  you  liave  seen  of  him  and  talked 


^dbvGoO^lc 


408       EETSEB  V.    omOAOO  AND   GBAND  TBDITE   B.    00. 

with  bim,  what  is  jonr  opinion  as  to  whether  he  is  a  briglit  boy  or 
foolish  V  "  He  is  foolisli ;  that  is  what  he  looks  to  me."  This  was 
competent  for  the  same  reason  as  was  the  question  to  Amanda 
Baker. 

It  is  insisted  that,  nnder  the  defendant's  sixth  proposition,  the 

inquiry    of    plain  tifTs   conn  gel   in    reference    to    tlie 
^^J^Jb,^  child's  condition  was  extended  beyond  ail  reasonable 
'  limits,  and  he  relies  upon  the  tenth  assignment  upon 

this  subject.  The  question  put  to  Dr.  Northrup  is 
made  the  enbject  of  the  assignment,  and  which  is  as  follows: 
"  When  you  got  there,  what  condition  did  yon  find  the  cliild  in  ?" 
A,  "I  found  him  in  convulsions."  The  child  was  injured  in  July, 
1880,  and  tlie  doctor  was  called  to  treat  him  in  June,  1885.  Tiie 
objection  was  that  the  doctor's  visit  was  too  remote  from  the  acci- 
dent to  be  material.  The  testimony  tended  to  show  tijat  the  malady 
brouglit  upon  the  boy  by  the  injury  continued  to  the  time  of  the 
trial,  and  there  waa  some  testimony  to  the  effect  that  it  was  per- 
manent. Under  these  circuni stances  the  testimony  was  not  objec- 
tionable upon  the  ground  stated.  The  other  testimony  deemed 
objectionable  by  counsel,  and  referred  to  in  this  proposition,  was 
not  objected  to,  and  therefore  cannot  be  considered. 

The  seventh  proposition  relates  to  the  care  required  of  the  de- 
fendant, and  the  speed  of  the  train.  The  claim  of  counsel  for  de- 
fendant under  this  head  will  be  found  in  the  twenty-second,  twenty* 
third,  twenty-fourth,  and  twenty-fifth  assignments.  See  foot-note.* 

*33.  In  the  refusal  of  the  court  to  give  defendant's  ninth  request  for  in- 
struction to  the  jur;,  aa  followB,  to  wit: 

*'  If  the  jury  find  that  the  defendant  company  was  organized  in  April, 
1380,  and  only  had  posseasion  of  its  road  for  a  few  moDtha;  and  that  at  the 
point  where  plaintia  was  injured,  and  for  over  one  half  a  mile  east  and  west 
thereof,  there  were  no  clearingB,  boueea,  or  people ',  and  if  the  defendant  bad 
no  reason  to  believe  that  children  would  come  upon  its  track  or  «ere  in  the 
vicinity  of  ita  track  at  that  point,  then  the  defendant  cannot  be  held  to  any 
extraordinary  degree  of  care  to  avoid  the  plaintiff,  whose  preRence  upon  its 
track  there  was  no  reason  to  expect;  and  if  the  defendant  exerci!<ed  orainary 
care  in  the  management  of  of  its  train,  and  need  every  possible  effort  to  pre- 
vent the  accident  after  the  plaintiff  was  discovered,  then  defendant  is 
not  liable  unless  the  jury  believe  that  the  existence  of  a  fence  would  have 
prevented  the  plaintiS  from  coming  upon  its  track." 

23.  In  the  refusal  of  the  court  to  give  defendant's  tenth  request  for  in- 
atruction  to  the  jury,  as  follows,  to  wit: 

"  There  has  been  no  competent  evidence  given  on  the  trial  of  this  case 
tending  to  show  that  the  defendant  ran  its  train  at  too  high  a  rate  of  speed, 
or  that  it  failed  to  keep  a  proper  lookout,  aa  set  forth  in  the  first  count  of 
the  plaintiff's  declaration." 

S4.  In  the  refusal  of  the  court  to  give  defendant's  eleventh  request  for  in- 
struction to  the  jury,  as  follows,  to  wit: 

"  An  object  lying  between  the  ties,  and  not  appearing  more  than  two  or 
three  inches  above  the  ties,  and  not  as  high  aa  the  top  of  the  rails,  is  not  or- 
dinarily an  object  indicating  danger,  nor  would  it  of  itself  be  of  a  character 


^d  by  Google 


INJURY   TO   CHILD   ON   TRACK.  409 

In  the  niatli  request  in  the  twenty-second  assignment  the  court 
is  asked  to  inatruct  the  Jnry  to  find  tue  existence  of  a  fact  of  which 
there  is  no  testimony  in  the  case,  viz.,  that  "the  defendant's  company 
was  oi^nized  in  April,  1880,  and  only  had  possession  of  its  road 

-calllDg  Cor  increased  vigilaDce  on  the  pftrt  of  the  train-men,  as  it  was  an 
apparent  obstruction,  but  one  that  would  in  all  reasonable  probability  be 
passed  over,  and  if  it  did  not  appear  to  be  an  object  of  danger,  then  it  would 
not  require  the  engineer  to  slow  donn  the  speed  of  bis  engine ;  nor  would  he 
be  required  to  slow  down  aucb  speed  until  be  discovered  that  it  would  prob- 
ably endanger  the  train  or  passengers,  or  would,  if  a  human  being,  be  itself 
in  danger." 

25.  In  the  refusal  of  tbe  court  to  give  defendant's  twelfth  request  for  in- 
struction to  the  jur;,  as  follows,  to  wit: 

"II  the  jury  believe  that  the  child  was  lying  between  the  ties,  so  that  the 
engineer  could  not  see  it  was  a  living  object,  or  large  enough  to  require  him 
to  atop  his  train  until  he  came  so  near  that  be  could  not  atop  when  it  rose 
up,  and  if  he  then  did  all  in  his  power  to  avert  danger,  and  bad  previously, 
at  Eimball's  croBsiog,  blown  the  whistle  and  rung  the  bell,  as  the  law  le- 
4]uireH,  then  there  is  no  ground  of  recovery,  because  there  was  negligence  on 
the  part  of  his  parents,  contributing  to  the  injury;  and  the  neglect  to  con- 
struct a  fence  cannot  overcome  such  contributory  negligence,  and  the  de- 
fendant is  entitled  to  recover." 

On  the  subject  of  the  parent's  negligence,  the  court  charged  as  follows: 

"  In  respect  to  the  question  as  to  whether  or  not  the  mother  of  the  plain- 
tiff, in  whose  charge  he  was  prior  to  the  time  of  the  accident,  was  guilty  of 
negligence  in  permitting  him  to  escape  from  the  house  and  stray  upon  the 
'defendant's  track,  is  a  matter  to  be  determined  by  you  from  the  evidence 
that  has  been  submitted  to  you  on  this  subject.  If  the  moLher  of  the  plaintiff 
failed  to  exercise  that  usual  and  ordinary  care  and  pnidence  which  a  parent 
under  like  circumstances  is  accustomed  to  use,  and  if  the  plaintifi,  in  conse- 

auence  of  such  caretessneBa  on  her  part,  wandered  upoa  the  track  and  lay 
own  between  the  rails,  and  was  not  observed  by  the  engineer  in  charge  of 
the  train  in  time  to  prevent  injuring  him,  provided  the  engineer  kept  a  vigi- 
lant lookout  and  was  not  guilty  of  negligence,  the  defendant  would  not  be 
liable.  Whether  it  would  be  necligence  upon  the  part  of  a  parent  to  leave 
the  plaintiff  in  a  house  without  the  guardianship  of  any  person  who,  in  your 
judgment,  had  arrived  at  the  age  nf  discretion  suitable  to  exercise  such  care 
fnr  him,  th£  door  of  which  house  he  could  open,  and  from  which  there  was 
a  road  that  he  might  follow,  leading  to  the  defendant's  track,  are  questions 
for  your  consideration.  If  the  mother  left  her  children  without  any  one  of 
suitable  age  to  attend  to  them,  and  went  off  into  the  woods  in  search  of 
berries,  and  was  gone  for  a  considerable  period  of  time  engaged  in  such  pur- 
suit, or  if  she  left  them  so  unattended,  and  went  out  into  the  garden  to  work 
among  her  vegetables,  and  was  away  from  them  for  any  unwarranted  period 
without  int^uiring  as  to  their  whereabouts, — from  such  facts  you  would  bo 
warranted  in  inferring  that  she  did  not  exercise  such  care  in  this  regard  as 
persons  of  ordinary  prudence  are  wont  to  use  under  like  circumstances;  but 
if  she  went  out,  as  claimed  by  her,  for  the  purpose  of  obtaining  a  few  veg- 
etables for  dinner,  and  with  the  expectation  of  being  gone  but  a  short  time, 
antj  was  only  absent  a  little  while,  and  you  believe  that  the  child  slipped  out 
of  the  house  without  her  fault,  and  was  followed  presently  by  her,  and  thnt 
she  used  the  same  care  and  caution  that  mothers,  under  like  circumstances, 
are  accustomed  to  use  in  Taking  care  of  and  looking  after  their  children, 
then  you  would  be  justiDcd  in  concluding  that  there  was  no  negligence  on 
her  part  contributing  to  the  injury." 


^d  by  Google 


410      KEYSER  V,    CHICAQO   AND   GRAND   TRUNK   R.    CO. 

a  few  months," — and  was  properly  refused.  Bat  for  this  fault  the 
request  should  have  been  given. 

Tlie  I'eqiicst  in  the  twenty-third  assignment  aeks  the  oonrt  to 
pass  upon  facts  which  were  only  proper  for  tlie  jury  under  a  proper 
charge  as  to  the  law. 

It  is  the  duty  of  the  defendant  to  keep  its  track  aheolately  clear 
from  all  obatnictLons,  and  the  sides  of  its  road  fenced 
?m  mwoiira^  38  required  by  statute.  When  it  has  done  this,  ordinnry 
jKTmlSic^  care  on  the  part  of  the  engineer  in  discovering  appar- 
ent obstiiictioiifi  upon  the  track  is  all  tliat  the  Jaw- 
should  require;  hut  when  the  road  is  iinfenced,  and  no  barriers- 
exist  against  animals,  or  ti>  prevent  children  wlio  have  no  knowl- 
edge of  danger  from  going  on  the  track,  and  an  object  is  discov- 
ered upon  the  road  a  iialf  mile  ahead,  then  appearing  no  more 
than  two  or  three  inches  above  tho  track,  which  does  not  belong- 
there,  and  ite  character  is  unknown  to  tiie  engineer,  I  think  ordi- 
nary care  and  prudence  for  safety  to  human  life  requires  that  lie 
should  reduce  the  speed  of  his  train  to  such  an  extent  tiiat  he  can 
stop,  if  necessary,  before  reaching  it,  and  not  take  the  chances  of 
probability  tJiat  the  object  discovered  is  not  a  human  being  be- 
cause not  expected  upon  the  track  at  that  point.  Persons  not  con- 
nected with  the  road  are  not  expected  to  use  tlio  track  in  any  case 
or  at  any  place  except  at  crossings ;  and  when  any  one  does,  and  he 
is  discovered  by  the  engineer  of  an  appi-oaching  engine,  increased 
vigilance  is  required  upon  his  part  in  discovering  whether  or  not 
the  trespasser  is  sensible  of  the  perils  likely  to  overtake  him,  and 
act  with  that  care  and  prudence  which  may  become  necessary  to 
protect  the  intruder  fi-om  injury.  It  is  true  this  care  may  be  in- 
convenient, and  cause  some  delays  to  both  defendant  and  its  pas- 
sengers, hut  such  considerations  sink  into  insignificance,  and  cannot 
be  placed  in  the  scale  ag:iirist  the  importance  and  value  of  human 
life  to  the  person,  (he  family,  and  the  country. 

We  cannot  depart  from  our  view  taken  upon  this  subject  when 
this  case  was  here  before.  The  defendant's  eleventh  request  in  the 
twenty-fourth  assignment  does  not  include  the  necessary  degree 
of  caution  required  on  the  part  of  the  defendant  under  the  circum- 
stances of  this  oaae,  and  was  tlierefore  properly  refused  ;  and  the 
twelftli  reqnest  in  the  twenty-fifth  assignment  has  the  same  infirm- 
ity, and  for  the  same, reason  was  properly  rejected. 

The  quesrion  of  netrligence  of  the  parents  is  the  object  of  de- 
fendant seighth  proposition,  and  is  contained  in  the  thirteenth  and 
fourteenth  requests  in  the  twenty-sixth  and  twenty -seventh  assign- 
ments. These  requests  iisk  the  court  substantially  to  P«88  upon 
the  negligence  of  the  parents  in  caring  for  the  child.  Tliis  was  a 
qnestion,  if  it  could  ho  considered  at  all,  within  the  province  of 
tlie  jury,  so  long  as  the  parties  disagreed  upon  that  subject;  and  I 


^d  by  Google 


TEE8PASSER — CHILD  OH   TRACK.  411 

think  the  charge  is  full  and  unexceptionable  upon  tbat  point,  so 
far  as  the  rights  of  defendant  were  concerned. 

The  ninth  proposition  relates  to  the  duty  of  the  engineer  to  slow- 
down his  train  on  making  discoverj  of  an  object  of  danger  appear- 
ing upon  the  track,  and  it  is  included  in  the  thirty-fonrtli  and 
thirty-fifth  assignments  of  error.  The  instractious  given  in  these 
exceptions  were  proper);  guarded  and  not  erroneoas.  What  has 
l>eon  said  sufficiently  disposes  of  ttiis  subject.  Neither  do  I  find 
any  error  in  the  thirty-eighth  and  thirty-ninth  assignments.  These 
clauses  of  the  charge  excepted  to  are  quite  as  favorable  to  the  de- 
fendant as  its  counsel  had  a  right  to  expect.  The  first  was  in  enb- 
etance  asked  for  by  counsel  for  defendant  in  their  eighth  reqnesL 

The  rerdict  in  tnia  case  is  large,  and,  whatever  we  may  tliink  of 
its  correctness,  as  no  error  of  law  appears  upon  the  record,  we  are' 
powerless  to  relieve  against  it,  and  the  judgment  must  be  affirmed.. 

Mosss,  J. — I  agree  in  the  opityon  that  tliis  case  should  be 
affirmed,  but  I  also  think  that  tne  negligence  of  the  parents  can- 
not affect  the  recovery  in  behalf  of  tne  child.  See  Battiehill  v. 
Humphrey,  7  West.  Rep.  806. 

Chahplin,  J. — I  concur  in  the  result. 

Campbell,  Ch,  J. — I  think  the  hearsay  testimony  was  improper, 
bat,  as  the  case  will  be  affirmed,  I  do  not  think  it  necesBary  to  die- 
eass  it  at  length. 

Chlldran  Trttpaulng  on  Railroad  Traok> — See  Chrystal  v.  Troy,  eto.,  R- 
Co.,  and  note,  next  case. 


Tboy  and  Boston  R,  Oo. 
(lOB  JPnc  Fori,  164.) 


right,  when  running  in  the  daytime,  so  that  his  train  is  perfectly  visibli^  and 
its  approach  must  he  heard  and  known,  at  lenst  in  the  first  instance,  tn  as- 
sume that  the  object  will  lenve  the  track  in  time  to  escape  injury,  and  with- 
out the  imputation  of  negligence  may  run  on  until  he  discovers  that  it  is 
heedless  of  the  danger.  He  is  not  bound  to  expect  helpless  infants  on  the 
track,  without  sufficient  knowledge  or  ability  to  escape  when  named  of 

II  seems  the  railroad  corporation  is  not  responsible  for  an  error  of  judg- 
ment on  the  part  of  the  engineer  as  to  the  speed  of  bis  train  or  his  ability  to 
atop  it  in  ',ime.  All  the  engineer  is  bound  to  do  after  diacOTery  of  the  peril 
ia  to  use  reasonable  diligence  and  care  to  avert  it. 


^d  by  Google 


412  CHRYSTAL  V.   TKOT   AND   B(»8T0N   E.   CO. 

Plaintiff,  an  infant  about  Beveoteen  moatha  old,  escaped  from  hia  mother's 
houae,  near  a  railroad  crossing,  went  upon  the  track  and  was  struck  b;  a 
irain  and  injured.  In  an  action  to  recover  damages  for  the  injury,  the  only 
m^gligence  complained  of  was  that  the  engineer  ought  sooner  to  have  dis- 
ciivered  the  plaintiff  on  the  track  and  stopped  the  train  before  it  reached 
liiin.  From  the  testimony  ot  jllaintiff's  mother  it  appeared  that  the  child 
reached  the  track  but  a  very  brief  time  before  the  accident.  The  engineer 
testified  that  imroediateiy  upon  seeing  the  plaintiff  he  gave  the  signal  for 
applying  the  brakes  and  reversed  bis  engine,  and  it  appeared  everything  was 
then  done  that  could  be  done  to  arrest  the  speed  of  the  train,  hut  before  it 
was  entirely  stopped  two  of  the  small  wheels  passed  over  plaintiff's  lee. 
Seld,  that  the  evidence  failed  to  show  any  negligence  on  the  part  of  defend- 
ant;  and  that  a  submission  of  the  question  to  the  jury  was  error. 

Appeal  from  judgment  of  tiie  general  term  of  the  anpreme 
court  in  tlie  third  judicial  department,  entered  upon  an  order 
made  November  24,  1885,  wliicli  affirmed  a  judgment  in  favor  of 
plaintifi  entered  upon  a  verdict. 

The  nature  of  the  actiou  and  the  material  facts  are  stated  in  tlie 
opinion. 

£  Z.  Furaman  for  appellant.    ' 

a.  A.  Pai-menter  for  respondent. 

Eari.,  J. — This  action  waa  commenced  to  recover  for  injuries 
caused  to  the  plaintiff  by  the  defendant  carelessly  running  an  en- 
Fit™.  gine  over  him  upon  its  road.     It  denies  that  it  was 

jcnilty  of  any  negligence  or  fault  causing  the  injury,  and  alleges 
that  there  was  negligence  on  the  part  of  the  plaintiff's  mother,  a 
widow,  wliich  exposed  him  to  the  injury  which  he  sustained. 

The  accident  happened  on  the  4th  day  of  September,  1877,  and 
the  action  was  commenced  on  the  2d  dav  of  February,  1880,  and 
was  brought  to  trial  on  the  2lBt  day  of  ilay,  1884.  At  the  time 
of  the  accident  the  plaintiff  wag  a  nursing  infant,  seventeen  months 
old,  and  in  consequence  of  his  injuries  one  of  his  fingers  was  am- 
putated, and  also  one  of  his  legs,  above  the  ankle.  The  verdict  of 
the  jury  was  for  |8000. 

The  pi-esence  of  the  plaintiff,  unattended  upon  the  railroad, 
would,  under  the  circnmstances.  if  unexplained,  liave  been  con- 
clusive proof  of  carelessness  and  inattention  on  the  part  of  the 
motiier,  and  hence  it  became  important  fur  him  to  show  that  he 
sti-ayed  upon  the  railroad  track  without  any  culpable  neglect  on  her 
part. 

At  the  place  of  the  accident  the  railroad  runs  in  a  northerly  and 
Boutheriy  direction  and  was  crossed  at  right  angles  by  Carey  Avenue, 
in  a  sparee!>'  populated  portion  of  the  village  of  Hoosick  Falls. 
The  plaintiff  resided  with  his  mother,  on  the  north  side  of  that 
avenue,  about  eighty  feet  easterly  of  the  railroad,  in  a  house  which 
stood  about  twelve  feet  northerly  from  tiie  line  of  the  avenue. 
He  had  been'able  to  walk  for  only  about  two  months,  was  fat  and 
chubby,  and  just  before  the  jiL-cident  had  been  playing  in  the  yai'd 


^d  by  Google 


TEESPASSEB — CHILD   ON  TBACK.  413 

in  front  of  the  house.  His  mother,  as  a  witness,  for  the  purpose 
of  excnlpating  herself  from  the  churgc  of  negligence,  gave  the  fol- 
lowing statement  of  what  then  took  place.  Slie  took  him  up  and 
lield  him  in  Iier  lap,  sitting  on  tlie  front-door  steps  of  tlie  house. 
Finding  that  he  was  sleepy,  she  went  into  the  house,  and  sitting  in 
a  rockiiic; chair,  nursed  him.  Seeing  that  he  was  inclined  to  sleeps 
she  laid  him  down  upon  the  floor  and  saw  that  he  was  still,  and 
she  then  put  a  chair  across  the  open  door-way  while  siie  went  into 
another  room  to  'tix  iiia  cradle.  She  was  gone  eight  or  ten  min- 
utes, and  when  slie  came  back  he  was  gone.  The  chair  across  the 
door-way  was  niidistni-bed,  so  that  he  must  have  crawled  over  tlie 
chair,  or  through  it  in  some  way,  and  passed  down  the  steps  to  the 
front  gate  which  was  fastened  ;  under  the  gate  there  was  a  space 
of  about  six  inches  through  which  he  must  have  crawled,  and  then 
lie  must  have  passed  into  the  street,  eighty  feet  to  tlie  railroad^ 
where  he  was  hit  by  the  engine  and  injured,  AH  this  transpired 
during  the  eight  or  ten  minutes  alie  was  in  the  adjoining  room. 
When  she  came  out  of  tiiat  room  and  commenced  looking  for  him 
she  saw  him  on  tite  railroad  and  saw  tlie  train  coming.  He  had 
never  gone  to  that  place  before,  and  was  never  known  before  to 
crawl  under  the  gate. 

The  counsel  for  the  defendant  contends  that  this  story  that  this 
child,  just  able  to  walk,  after  being  put  to  sleep  sound  as  comes 
to  a  tired,  well-fed  infant,  woke  np,  got  tiirough  or 
over  the  chair,  down  the  steps,  under  the  gate  and  to  tkdih  or 
down  to  tlie  railroad  track  all  within  eight  or  ten  min- 
,  utes,  18  so  incredible,  unnatural,  and  contrary  to  human  experience, 
that  the  jury  could  not  rely  on  it  as  sufficient  to  show  each  care  of 
the  child  on  the  part  of  his  mother  as  the  law  exacts.  While  this 
evidence  is  liable  to  much  of  the  criticism  in  which  the  defendant's 
coDDsel  indulges,  we  cannot  say  that  the  story,  in  its  essential  feat- 
ures, is  so  impossible  or  improbable  that,  as  matter  of  law,  tlie 
jury  could  not  believe  in  it  and  rely  upon  it.  We  have  no  power 
to  weigh  the  evidence.  The  general  term,  however,  having  power 
to  set  aside  verdicts  which  are  contrary  to  the  evidence  should  not 
allow  one  to  stand  which  is  based  simply  upon  evidence  which 
may  possibly  be  true. 

But  we  are  of  opinion  that  the  evidence  failed  to  show  any  neg- 
ligence on  the  part  of  the  defendant.  Tliere  is  no  charge  that  its 
road-bed  or  engine,  or  any  of  the  appliances  upon  its  Nmuownm  or 
train  were  out  of  repair,  defective  or  insufficient.  Nor  ■'"™™*"- 
is  there  any  claim  tliat  there  was  any  omission  to  give  the  proper 
signals  for  this  crossing,  or  that  the  train  was  run  at  an  impi-oper 
rate  of  speed.  The  sole  negligence  cliarged,  as  we  understand  it,, 
is  that  the  engineer  ought  sooner  to  have  discovered  the  plaintiff 
upon  the  track,  and  stopped  the  train  befom  it  reached  bim. 


^dbv.Google 


414  OIIRTSrAL  V.   TBOr   ArfD   BOSTOH   E.   CO. 

This  is  the  iirst  case  that  has  come  before  this  conrt,  and,  eo  fsr 
ms  we  )inow,  before  any  coart  in  tliis  State,  wbereia  mnet  be  de- 
fined the  responsibilities  of  a  steam  railroad  compan7,  not  other- 
wise in  fault,  to  one  lawfully  upon  its  track,  for  not  seeing  him 
itad  stopping  its  train  in  time  to  avoid  injuring  him. 

It  was  in  evidence,  bv  a  witness  produced  by  the  plaintiff,  that 
trmmKuat  plaintlEE  could  be  seen  upon  the  track  at  a  point  abont 
raanuB.  gQQ  fgg^  from  where  lie  was  injured.  From  the  evi- 
dence of  the  defendant's  engineer,  it  appears  that  when  he  was 
about  forty  rods  from  the  avenue  he  saw  a  little  girl  upon  the 
crossing  abont  eight  or  nine  years  old,  and  that  she  ran  from  the 
track,  and  that  then,  for  the  first  time,  he  saw  the  plaintiff.  He 
immediately  gave  the  signal  for  the  brakes  to  be  applied  and  re- 
versed his  engine,  and  the  evidence  shows  that  everything  wat  then 
done  that  could  be  done  to  arrest  the  speed  of  the  train,  and  that 
only  two  of  the  small  wheels  of  the  engine  passed  over  the  plain- 
tiff's leg  before  it  w;is  entirely  stopped.  Tnere  was  evidence  on 
the  part  of  the  plaintiff  tending  to  siiowtbat  there  was  no  little 
girl  upon  the  crossing  jnst  pi-evious  to  the  accident,  as  testified  to 
by  the  engineer,  and  it  may  be  assumed  that  he,  testifying  a  long 
time  after  the  accident,  was  mistaken.  But  his  evidence  was  not 
necessarily  in  conflict  with  that  of  the  other  witnesses  npon  whose 
memory  time  may  also  have  done  its  work.  The  little  girl  may 
have  come  upon  the  track  and  passed  off  undiscovered  by  the  other 
witnesses,  and  the  plaintiff  may  have  come  upon  the  track  soon 
after  and  may  have  been  seen  by  the  engineer  immediately  after  he 
came  npon  the  track  and  after  the  girl  had  passed  off.  Tite  facts 
testified  to  by  the  plaintiff's  mother  showed  that  he  must  jnsfc  have 
readied  the  track  and  could  have  been  there  but  a  very  biief  time 
before  the  accident.  It  cannot  be  inferred  tiiat  the  engineer  ought 
to  have  seen  or  conld  have  seen  him  any  sooner  than  iie  did.  It  is 
not  probable,  and  tliere  is  no  evidence  to  show  that  he  was  upon 
the  track  at  the  time  the  train  left  the  depot,  about  fifteen  hundred 
feet  from  the  avenue;  nor  is  there  any  evidence  from  which  it 
conld  l)e  found  that  he  was  upon  the  track  and,  therefore,  visible 
to  the  engineer  at  any  time  before  the  train  came  within  forty 
rods  of  him. 

Witnesses  testifying,  after  the  great  lapse  of  time,  might  be  mis- 
taken as  to  the  speed  of  the  train,  the  distance  at  which 
SS^B^vEH-  the  child  was  first  discovered  npon  the  track,  and  the 
irei oB'raicl.'  place  where  the  engine  was  reversed.  But  there  can  be 
no  doubt,  upon  this  evidence,  that  after  the  engineer 
discovered  that  the  child  was  in  peril  he  did  all  he  could  to  arrest 
the  motion  of  the  train.  Tiiat  he  wilfully  or  recklessly  ran  upon 
liim  after  he  discovered  that  he  was  in  peril  is  inconceivable,  and 
certainly  cannot  be  assumed.     Ad  engineer  is  not  bonod  to  stop 


^d  by  Google 


TRESPASSER — CHILD   ON  TRACK.  415 

liis  train  the  moment  he  Bees  some  living  object  upon  the  traek. 
He  has  tlie  right,  in  broad  davlight,  when  his  train  is  perfectly 
visible  and  ita  approach  must  be  heard  and  known,  at  least  in  tlie 
first  instance,  to  assnme  that  tlie  object,  whatever  it  is,  will  leave 
the  track  in  time  to  escape  iDJiirj. '  He  is  not  bonnd  to  expect 
helplese  infanta  upon  the  track  withont  snfficient  knowledge  or 
ability  to  escape  when  warned  of  danger.  He  could  not  know 
when  be  first  saw  the  plaintiff  that  he  was  too  young  to  be  con- 
scions  of  tlie  danger  to  which  be  was  exposed,  and  withont  the 
imputation  of  negligence  he  conld  rnn  on  nntil  he  discovered  that 
he  was  heedless  of  the  danger.  Heasonable  care  in  the  manage- 
ment of  trains  which  must  make  their  time  between  station^  and 
have  the  right  of  way,  does  not  require  moi-e. 

The  defendant  is  not  responsible  for  any  error  of  jndgmeat,  if 
there  was  any,  on  the  part  of  die  engineer  as  to  the  speed  of  his 
train,  the  distance,  age  and  peril  of  the  child,  and  his  ability  to 
Btop  the  train  in  time  to  protect  him.  All  the  engineer  was  boand 
to  do  after  the  discovery  of  the  peril  was  to  nse  reasonable  dili- 
gence and  care  to  avert  it,  and  there  was  no  evidence  which  aathor- 
ized  the  jury  to  iind  that  he  did  not  do  this. 

We  are,  therefore,  of  opinion  that  tlie  judgrneut  should  be  re- 
Tersed  and  a  new  trial  granted,  costs  to  abide  event. 

All  concnr,  except  Andbewb  and  Dai^forth,  JJ.,  dissenting. 

Feckhah,  J.,  concurs  on  the  ground  that  the  evidence  exculpat- 
ing plaintiff's  mother  from  n^ligence  is  so  wliolly  incredible  in  its 
Tiature  as  not  to  be  snfficient  in  law  to  be  submitted  to  the  jury. 

Judgment  reversed. 

Childran  Trsipasiing  on  Railroad  Track — Degree  of  Cmra  Required  of 
.  RaJIraad  Companyi— ^A  higher  degree  al  care  and  greuWr  precaution  must 
lii^  oxercised  b;  a  railroad  companj  toward  an  infant  than  toward  an  adult, 
Sriiilli  o.  O'Conoor,  48  Pa.  St.  318;  Peana.  R.  Co,  u.  Lewis,  79  Pa.  St.  88; 
Isabel  e.  Hannibal,  etc.,  R.  Co.,  60  Mo.  475;  Byrne  ».  N.  Y.  Central,  etc., 
K.  Co.,  83  N.  Y.,  830;  Rockford,  etc.,  R.  Co.  v.  Delanej,  83  111.  198;  Mo- 
bile, etc.,  R,  Co.  t>.  CreoBhaw,  65  Ala.  566;  Walters  e.  Chicago,  etc.,  R.  Co., 
41  Iowa,  71. 

Duty  of  Engineer  upon  Ditcovering  Child  on  Track, — When  a  child  is 
.seen  upun  the  track  a  sufficient  length  oF  time  to  enable  the  ecgineer  to  stop 
the  train,  he  ia  bound  to  do  bo.  Harlan  v.  R.  Co.,  04  Mo.  480,. SS  Ho.  %2- 
Maher  r.  R.  Co.,  94  Mo.  287;  Keyser  e.  Chicago  &  Q.  T.  R.  Co.  (Mich.),  IB 
Am.  &  &Qg.  R.  R.  Cas.  91 ;  Texas,  etc.,  R.  Co.  d  O'Doanell,  58  Tes.  37. 

In  Isabel «.  H.  &  St.  J.  R.  Co.,  60  Mo.  475,  an  infant  lying  on  the  track 
was  miatakea  for  a  hog  or  do^,  and  no  attempt  was  made  to  stop  the  train. 
Sbld,  that  the  company  was  liable. 

In  Eeyser  v.  Chicago  &  Q.  T.  R.  Co.  (Mich.  188G),  19  Am.  &  Eng.  R.  R.  Caa. 
'91,  a  child  two  and  a  halt  years  of  age  strayed  upon  arailroad  track,  and,  lying 
'down  thereon,  was  mistaken  for  a  log  of  wood  by  the  engineer  and  fireman 
when  the  trun  was  1000  yards  distant,  but  was  seen  to  be  a  child  when  400 
yards  distant.  Held,  that  it  was  the  duty  of  the  engineer  to  slacken  the  speed 
of  his  train  to  such  a  rate  that  he  could  have  stopped  the  train  before  reacb- 


iizcdbvGoOgle 


416  CHRYSTAL  V.   TROY    AKD   BOSTON    R.   CO. 

iug  the  object  of  danger,  and  as  the  injurj  to  the  child  could  hftve  been 
avoided  by  proper  care,  the  compaajr  was  itable. 

In  P.  &  R,  R.  Co.  D.  SpearcD,  47  Pa.  8C.  304,  Agnew,  J.,  sajB:  "If  an  adult 
sliuuld  place  himself  upon  the  railroad  where  he  baa  no  right  to  be,  but  where- 
the  company  ia  entitled  to  a  clear  track,  and  the  benefit  of  the  preHumption 
tliHt  it  will  Dot  be  obstructed,  and  should  be  run  down,  the  compaoj  would 
1)e  liable  only  for  wilful  injury,  or  ita  counterpart,  gross  negligence.  But  if 
n  child  of  tender  years  should  di>  eo.  and  Buner  injury,  the  cumpan;  would 
be  liable  for  the  want  of  ordinary  care.  The  priacipLe  may  be  illuatrated 
thus:  If  the  engineer  saw  the  adult  in  time  to  stop  bis  train,  but  the  train 
lieing  in  full  view,  and  nothing  to  indicate  to  him  a  want  of  consciousneBs  of 
its  approach,  he  would  not  be  bound  to  stop  hia  train.  .  .  But  if,  instead  of 
the  adult,  it  were  a  little  child  upon  the  track,  it  would  be  the  duty  of  the 
engineer  to  Stop  his  train  upon  seeing  it.  The  change  of  circumstances  from 
the  possession  of  capacity  in  the  trespasser  to  avoid  the  danger,  to  a  want  of 
it,  would  create  a  corresponding  change  of  duly  in  the  engineer." 

So,  in  Lake  Shore,  etc.,  R.  Co.  v.  Uiller,  SG  Mich.  279,  the  court  say: 
"  If,  however,  he  (the  engiaeer]  sees  a  child  of  tender  years  upon  the  track, 
or  any  person  known  to  him  to  be,  or  from  his  appearance  giving  him  good 
reason  to  l>elieve  that  he  is,  insane  or  badly  intoxicated,  or  olberwise  insen- 
sible of  danger  or  unable  tu  avoid  it,  he  has  no  right  to  presume  that  he  will  ' 
get  out  of  the  way,  but  should  act  upon  the  belief  that  he  might  not,  or 
would  not,  and  he  should  therefore  take  means  to  stop  his  train  in  time." 

In  Frick  V.  St.  Louis,  etc.,  R.  Co.,  75  Ho.  B90;  e.  c,  8  Am.  &  £ng.  R.  R. 
Gas.  380,  the  plaintifF,  an  infant  a  little  more  than  two  veara  of  age,  was  TUOr 
over  and  injured  by  acravel  train  of  the  defendant  in  the  city  of  St,  Louia. 
The  evidence  was  conflicting  as  to  the  length  of  time  she  was  on  the  track 
before  the  injury,  but  the  track  was  level,  the  view  between  the  streets  wa» 
unobstructed;  the  road  was  unfenccd;  there  were  dwellings  on  either  side;, 
there  was  a  pathway  leading  across  the  track,  and  the  train  was  approaching 
a  crossing.  Held,  that  if  the  servants  of  the  defendant  saw,  or  by  tne  eiereise 
of  ordinary  care,  under  the  circumstances  stated,  could  have  seen  the  plain- 
tiff in  time  to  have  avoided  injuring  her,  and  failed  to  do  so,  the  defendant 
is  liable,  and  whether  the  servants  of  defendant  were,  about  the  time  of  the 
injury,  using  such  care  was  a  question  of  fact  for  the  jury. 

See,  also,  Schweir  e.  N.  Y.,  etc.,  R.  Co.,  80  N.  T.  558,  where  it  was  held 
I   that  it  was  for  the  jury  to  say  whether  an  engineer  has  been  guilty  of  negli- 
gence in  not  stopping  or  attempting  to  Stop  his  engine  upon  seeing  a  child 
on  the  track. 

In  Weeks  «.  8.  Pac.  R.  Co.,  66  Cal.  bii;  b.  c.  8  Am.  &  Eng.  R.  R.  Cs*. 
814,  the  plaintiff,  an  infant  between  six  and  seven  years  of  age  resided  with, 
his  parents  near  tlie  railroad  of  the  defendant  and  but  a  short  distance  from 
where  a  public  highway  crossed  the  railroad  track.  Shortly  before  the  acci- 
dent the  plaintiff,  while  following  another  boy  about  nine  years  old  who- 
hod  been  sent  on  an  errand  across  the  track,  became  dizzy  upon  reaching 
the  track  and  fell  down  on  it  about  fifteen  feet  from  where  it  was  crossed  ■ 
by  the  highway.  He  remained  there  in  that  condition  or  asleep  until,  shortly 
afterward,  a  construction  train  of  the  defendant  came  along  on  nn  up-grade, 
at  the  rate  of  about  eight  miles  an  hour  and  crushed  one  of  his  feet  and 
otherwise  seriously  injured  him.  The  plaintifF  waa  not  permitted  by  his 
parents  to  play  on  the  track  and  had  been  punished  by  his  mother  for  doing 
BO.  The  conductor,  was  on  the  engine  at  the  time  of  the  accident,  and  jaw 
the  plaintiff  at  a  distance  of  400  or  500  feet  ahead,  but  supposed  he  was  a 
bunch  of  leaves  or  weeds  or  other  insigniScant  object,  until  within  ISO  feet 
of  the  plaintiS,  he  discovered  he  was  a  child  and  called  out  to  the  engineer, 
*'  Harder."    The  latter  up  to  that  time  bad  made  no  demonstration  that  any> 


^d  by  Google 


,  TEESPASSEIS — OHILB  ON  TRACK.  417 

tiling  was  on  the  track,  nod  tlio  whistle  was  ncitlier  blown  nor  the  bell  rung, 
ftltliuuf(li  the  plaialifF  la;  wjiliing  ii  Tew  led  uf  where  tlic  public  liigliwiij 
crossed  tlie  track.  Held,  tlmt  tliu  eviJcncu  justified  the  fiuding  oF  nc-glU 
gence  on  the  part  of  tlie  employees  of  the  dcfeiidant,  unci  thnt  the  case  did 
not  show  such  contriLiUtory  iic;;ligCQCC  on  the  part  of  plaintiff  or  hia  pareots 
03  to  jireclude  a  recover;  by  him. 

Ill  a  recent  cose  in  Peiinsylvanin,  it  has  been  held  that  railroad  companies 
owe  no  gro.iter  measure  ot  duly  to  persons  of  tender  yenrs  wnlking  upon 
their  trai-k^  tlinii  to  ndulis.  Mnorc  D.  Punna.  B.  Co.,  C9  Pn.  Bt.  :!D1;  s.  c, 
i  Am.  &  Eng.  R,  H.  Cas.  5B».  Sec,  also,  P.  &  R.  R.  Co.  e.  Hiimmell,  4t  Pa. 
8t.  87.i;  Bulgers.  Alhany  R.  Co.,  «  N.  Y.  4oO;  Johnson  c.  B.  A  M.  R.  Co., 
12.)  Mass.  7S;  Walters  c.  Chica){n,  etc.,  It  Co.,  41  Iowa,  71. 

In  Hiioro  e.  Penna.  R.  Co..  OH  Pa.  St.  301 ;  s.  c,  4  Am.  &  Eng.  R.  R.  Cas. 
S69,  in  an  action  to  recover  diimagcs  for  the  death  of  tlicir  child,  the  parents 
proved  that  the  deceased  was  killed  by  a  fast  express  train  while  walking 
upon  the  track  of  the  defendant  comp.tny's  road.  The  child  was  nearly  tea 
years  of  ago  and  was  bright  and  intelligent.  The  court  below  granted  a 
nonsuit.  Bidit,»ot,  to  be  error.  Qrcen,  J.,  said  :  "  The  circumstance  that  tbe 
tcspasser  in  this  instance  was  a  boy,  ten  years  of  age,  cannot  alluct  the  appli- 
cation o!  the  rule.  The  defendant  owed  him  no  greater  duty  than  if  he  had 
been  an  adult.  They  arc  not  subject  to  an  obli<;ation  to  take  precautions 
against  any  cl.iss  of  persons  who  may  walk  on  and  along  their  trnckf," 

Where  a  person  crosses  a  railroad  trnck  by  a  common  and  well-known  foot- 
path, used  by  the  public  for  many  years,  without  let  or  hindrance  on  the 
fart  of  the  employees  of  the  company,  bo  cannot  bo  regarded  as  a  trespasser. 
:  &  R.  R.  Co.  o.  Troutman,  11  Weekly  Notes  of  Cases  (Pa.),  4B5;  s.  c,  » 
Am.  4  Eng.  R,  R.  Cas.  117. 

Liceiue  to  uw  Riilroad  Trade. — Where  tho  railroad  company  bos  allowed 
tho  neghboring  population  to  use  its  tracks  as  a  nay  across  their  lot,  tbo  pre- 
sumption of  a  clear  track  does  not  arise  as  in  otbor  parts  of  its  rood.  Kay 
e.  Ponna.  R,  Co,  65  Pa.  Bt,  869. 

Daly  to  Provide  a  Lookout. — A  railroad  company  must  provide  for  a  care- 
ful lookout  in  the  direction  that  tho  train  is  moving,  in  places  where  people, 
and  especially  where  children,  are  liable  to  be  upon  tho  track.  It  they  do 
not,  and  a  person  has  been  injured,  then  the  company  may,  in  the  absence  of 
contributory  negligence,  be  held  liable.  Townlcv  e.  Chicago,  etc.,  R.  Co.,  4 
Am.  &  Eng.  R.  R.  Cai.  G63;  Biiller  n.  R.  Co.,  as'Wis.  437;  Ewen  r.  R.  Co., 
88  Wis.  013:  Cheney  o.  R.  Co.,  10  Hun  (N.  Y.),  415;  Frick  o.  B.  Co.,  S  Mo. 
App.  433;  Needliam  o.  8in  Francisco,  etc.,  It.  Co.,  87  Gal.  400. 

In  Johnson  «.  Chicago,  etc..  It.  Co.,  49  Wis.  5S9;  s.  c,  I  Am.  &  Bug.  R.  It. 
Oas.  153,  a  boy  about  6  years  old  was  killed  upon  the  railroad  track  at  a 
public  crossing.  The  highway  was  one  much  travelled  by  little  children 
who  crossed  the  track  at  that  place  daily  on  their  way  to  school.     The  court 


'  below  non  suited  the  plaintiff.  Hdd,  that  the  questions  of  ne^ligci 
defendant's  part,  and  conlribulory  negligence  oi  tho  child  or  its  parents, 
should  have  been  submitted  to  tho  jury  upon  the  evidence.  Cole,  J.,  ob- 
served: "  Had  tho  engineer  been  vigilant  and  careful,  and  looked  out  of  the 
window  of  tho  locomotive  as  he  approached  the  crossing,  it  is  barely  possible 
he  might  have  seen  the  boy  in  time  to  have  saved  his  life  by  stopping  bis 
engine." 

%'cnname  Btatatt. — The  Tennessee  Statutes  to  prevent  accidents  on  rail- 
roads provide  that  every  r^lroad  company  shall  keep  the  engineer,  fireman, 
or  some  other  person  upon  tho  locomotive,  always  upon  tho  lookout  ahead, 
■nd  when  a:iy  person,  animal,  or  other  obstruction  appears  upon  the  road, 
Uie  alarm  whistle  shall  be  sounded,  the  brakes  put  down,  and  every  possible 
81  A.  ifc  £.  R.  Cos.— 27 


i,z.dbvG00gle 


418  CHRY8TAL  V.   TKOT   AND   BOSTON  It,   00. 

me&nB  emplojed  to  stop  the  train  aod  prevent  an  accident."  See  note  to 
East  TeoQ.,  etc.,  R.  Co.  e.  Humphreys,  IG  Am.  &  Eng.  R.  R.  Cbb.  472. 

The  contributorj  De^ligeace  of  a  person  iajured  od  a  railroad  by  going 
apoa  the  track,  ot  fiillmg  asleep  there,  where  the  statutory  precautioiu  were 
not  complied  vith,  may  Ite  considered  in  mitigation  of  damages:  East 
Tenn.,  etc.,  R.  Co.  p.  Hmplireya,  12  Lea  (Tenn.).  200;  a.  c,  15  Am.  &  Eog, 
R.  R.  Cas.  472.  See,  also,  Ljmith  d.  NashTilk,  etc.,  R.  Co.,  6  HeiBk.  (Tenn.) 
174. 

Infant  oaaaot  Beeooer  unUm  the  Railroad  viat  Negligent. — But  where  negli- 
gence is  not  imputable  to  the  company  there  can  be  no  recovery  for  an  injury 
to  an  infant.  Meyers  b.  Midland  Pdc.  R.  Co.,  3  Neb.  819;  Phila.,  elc,  R. 
Co.  e,  Hummell.  45  Pa.  Bl.  375;  McMnhon  o.  N.  C.  R.  Co.,  SB  Md.  438; 
Wendell  e,  N.  Y.  Central,  etc.,  R  Co.,  91  N.  Y.  420;  Moore  b.  P.  R.  Co.,  4 
Am.  &  Eng.  R  R.  Cas.  660. 

Where  the  child  upon  the  track  cannot  be  seen  by  the  railway  servants  in 
time  to  atop  the  train,  the  company  ia  not  liable,  Bulger  b.  Albany  R.  Co., 
42  N.  Y.  439;  Meyer  d.  Midland,  etc.,  R.  Co.,  -i  Neb.  320;  Morrissey  b.  East- 
ern R.  Co..  126  Mass.  377;  Phila..  etc.,  R.  Co.  «.  Spearen,  47  Pa.  St.  800; 
Chicago,  etc..  R,  b.  Becker,  76  III.  25. 

Where  the  child  was  seen  by  the  engineer  of  the  train  when  460  feet 
away,  and  every  effort  was  made  to  stop  the  train  within  that  distance,  but 
without  success,  HM,,  that  there  was  no  evidence  of  negligence  to  submit  to 
the  jury.     Exparte,  Stell,  4  Hughes  (C.  C),  157. 

The  company  is  not  liable  where  its  servants,  after  discovering  the  peril- 
ous position  of  the  child,  could  not  by  the  exercise  of  ordinary  diligence  and 
care  prevent  the  injury.  Louisville,  etc.,  R.  Co.  c.  Greene  (Ky.),  10  Am.  Sc 
Eng.  R.  R.  Cas.  95. 

Where  there  is  every  reason  to  believe  that  the  child  will  be  off  the  track 
before  the  train  reaches  it,  and  its  escape  is  frustrated  by  catching  its  foot  in 
a  crevice  in  the  track,  and  everything  is  done  to  avoid  the  injury,  the  railroad 
company  will  not  be  responsible  therefore.  Penna.  R.  Co.  e.  Morgan,  62 
Pa.  at.  134. 

Where  a  child  about  five  years  of  age,  in  attemptiug  to  run  across  a  rail- 
road between  a  coal  train  and  an  engine  and  tender  which  was  following 
close  behind  it,  was  struck  by  the  engine  and  injured.  Held,  that  the  com- 
pany was  not  liable  without  proof  of  want  of  ordinary  care  iu  the  engineer, 
at  the  time  and  place  of  the  injury.    P.  &  R.  R.  Co.  e.  Spearen,  4T  Pa.  St.  300. 

In  Chicago,  etc.,  R.  Co.  e.  Smith  (Mich,),  4  Am.  A  Eng,  R.  R.  Cas.  535,  an 
eight- year-old  boy  trespassing  upon  the  premises  of  a  railroad  cnmpany  got 
on  the  step  of  an  engine  and  was  ordered  off  by  the  fireman,  and  fell  as  he 
jumped  off.     The  locomotive  was  started  at  that  moment  and  the  tender 

Eassed  over  his  arm.  He  w^is  a  bo;  of  more  than  average  intelligence  and 
ad  been  warned  against  going  on  the  premises  or  riding  on  tlie  engine. 
Hdd,  that  the  injury  resulted  from  so  accidental  fall  of  the  boy  and  without 
any  carelessness  or  negligence  of  the  eompany's  servants,  and  the  jury  should 
have  been  instructed  that  under  the  evidence  the  plaintiff  was  nut  entitled 
to  recover. 

II.  Dkorke  of  Cabk  RBqoiRED  OF  CnitDRBN.— Lcss  care  and  attention 
for  their  own  protection  are  required  of  children  than  of  adults.  The  de- 
gree of  care  required  in  the  case  of  children  depends  upon  their  age,  mental 
condition,  and  the  circumstances  of  the  case.  W.  &  G.  R.  b.  Gladmon,  15 
Wall.  (U.  S.)  401;  Pa.  R.  Co.  b.  Eelley,  81  Pa.  St.  872;  Ranch  o.  Llojd,  31 
Pa.  St.  858;  Smith  o.  O'Connor,  48  Pa.  St,  218;  Philn.,  etc.,  II.  Co.  6. Layer, 
112  Pa.  St.  414;  Morgan  e.  B.  C.  R.,  30  N.  Y,  445;  Barry  o.  N.  Y.,  etc..  It, 
m  N.  Y.  389;  13  Am.  &  Eng.  R.  R.  Cas.  615;  C.  &  A.  R.  e.  Gregory,  68  UL 
226;  Elkina  «.  B.  &  A.  R„  115  Mass.  190. 


^d  by  Google 


TEE8PA88BR — CHILD   ON  TBACK.  4l9 

In  R  Co.  o.  Gladmon,  IS  Wnll  (U.  8.),  401,  Mr.  Justice  Hunt  said: 
"The  rule  of  law  in  regard  to  the  negligence  of  an  adult,  and  iho  rule 
in  regard  to  that  of  au  iiifunt  of  teuder  jcars  is  quite  dJQcrent.  By 
the  adult  there  must  be  given  thnt  cnre  and  atletitiuu  for  hia  own  pro- 
tection tliat  i«  ordinai'il;  exercised  by  jiersona  of  intelligence  and  discretion, 
if  ho  fails  to  give  it.  Ills  injury  is  the  result  of  his  own  folly  and  cannot  be 
visited  upon  another.  Of  an  intaut  of  tender  ycara  less  discretion  is  required, 
and  the  degree  depends  upon  liis  ago  and  knowledge.  Of  a  child  of  threo 
years  of  age  less  cnution  would  be  required  than  of  one  of  seven;  and  of  a 
child  of  seven  less  than  of  one  of  twelve  or  fifteen.  The  caution  required  is 
according  to  the  maiarity  and  capacity  of  the  child,  and  this  is  to  be  deter- 
mined in  each  case  by  the  circumstances  of  that  case." 

In  Roach  n.  Lloyd,  31  Pa.  St.  338,  a  boy  about  six  or  aevco  years  of  age 
attempted  to  pass  under  a  train  of  railroad  cars,  negligently  left  standing  on 
the  crossing  of  a  public  street,  and  was  injured  by  the  starting  of  the  cars. 
Held,  that  the  child  was  not  to  be  judged  by  the  snmo  rule  as  an  adult,  and 
■could  not  bo  regarded  as  guilty  of  negligence,  and  that  the  owners  of  the 
-cars  were  liable.  Woodn-ard,  J.,  said:  "If  be  (Ibe  child)  had  gone  out  of 
his  track  to  place  himself  under  the  cars,  it  might  be  accounted  rashness 
«vcn  in  a  child;  but  pursuing  his  highway,  ho  may  well  have  supposed 
that  the  men  who  placed  the  curs  there  expected  him  to  pass  under  them. 
Considering  his  ago.  and  all  tho  circumstances  of  the  cose,  we  see  nothing 
that  would  justify  the  imputation  of  negligeuco  or  imprudence.  He  acted 
like  a  child,  and  lie  is  not  be  judged  as  a  man.''  See,  also.  Pa.  R,  Co.  «. 
Kellcy,  :!l  Pa.  St.  373;  and  Phila.,  etc.,  R.  Co.  t.  Layer,  113  Pa.  St.  414. 

Infants  of  Tender  Years  Cannot  Be  Contributorily  Negligent.— It  is  gen- 
erally held  lliat  au  infant  of  lender  years,  nor  of  sufficient  capacity  to  under- 
Btand  the  danger  and  guard  against  ii,  cannot  be  guilty  of  cnniributory  uegli- 
gence.  Pittsburgh,  etc,  R.  Co.  f.  Caldwell,  74  Pa.  St.  431;  Penoa.  R.  Co- 
e.  James,  81*  P.i.  St.  104:  Phila.,  etc.,  R.  Co.  c.  Layer,  113  Pa.  St.  414; 
Cleveland,  etc.,  R.  Co.  e.  Mauson,  30  Ohio  St.  431;  Norfolk,  etc.,  R.  Co.  d. 
Ormsby.  37 Gr*tt.  (Vft.)455:  Evansich  tt.Q.,  C.  &  S.  F.  R,  Co.,  57  Texas  133; 
B.  c,  6  Am.  &  Eng.  R.  R.  Cas.  183. 

A  child  two  years  old  cannot  be  guilty  of  contributory  negligence.  Where 
A  child  two  years  old  is  playing,  iiauttended,  on  the  street,  it  is  competent 
to  show  that  the  child  escaped  from  the  parents'  inclosurc  without  their 
fault.     FarrisB.  Cass  Avenue,  etc.,  R  Co.,  8  Mo.  App.  589. 

An  infant  under  sis  years  of  ago  cannot  bo  guilty  of  contributory  negli- 
gence.    Bay  Sliorc  li.  Co.  o.  Harris,  07  Ala.  0, 

A  child  two  years  and  ten  months  old  cannot  be  capable  of  contributor; 
negligence,  so  as  to  relievo  the  company  from  liability  for  its  own  negligence. 
Norfolk,  etc.,  R.  Co.  B.  Ormshy,  27  Gratt.  (Va.)  45S. 

Where  the  injury  to  a  child  incapable  of  knowing  and  avoiding  danger  is 
caused  by  the  actual  negligence  of  the  company  the  incapacity  of  the  child 
shields  it  from  responsibility  for  its  acts.  Kay  p.  Penna.  U.  Co,  05  Pa.  St, 
369. 

An  infant,  however,  is  chargeable  with  some  degree  of  care  and  prudence 
in  approaching  a  known  danger,  nnd  is  responsible  for  tho  consequences  of 
somedegrecof  negligence;  and  in  an  action  for  injuries  to  him  occasioned 
by  tho  negligence  of  another,  absence  of  this  degree  of  negligence  on  his 
part  must  be  made  to  appear  to  authorize  recovery.  Wendell  o.  N.  Y.  C, 
«tc.,  R.  Co..  91  N.  Y.  420;  s.  c.  14  Am.  &  Eng.  R.  R,  Cas.  G63. 

Degree  oFCftre  a  Question  for  tho  Jury. — What  degree  of  care  ought  to  have 
been  exercised  by  the  injured  child  is  a  question  for  the  jury  under  the  facts 
of  tho  case.  Nsgel  o.  M.  P.  R.  Co.,  73  Mo.  658;  a.  c,  10  Am.  &  Eng,  R.  R, 
Caa.  703;  P.  &  R.  R.  e.  Long,  75  Pa.  St.  337;  Pa.  R.  Co.  e.  Kelly,  31  Pa.  St. 


^d  by  Google 


4S0  OHBTBTAL  V.   TROT   AND   BOSTON    B.    CO. 

879;  P.  &R.  R.  o.  8pe»ren,  47  Pa.  St.  800;  Keynolda  e.  N.Y.  Cent.,  elc,  R 
Co.,  69  N.  y.  248;  Jolinson  e.  C.  &  N.  W.  R.,  49  Wis.  529;  b.  c,  1  Am.  * 
Eaz.  R.  K.  Cos.  155;  H.  &  M.  R.  Co.  e.  Crenslmw,  65  Ak.  SSS;'  b.  c,  8  Am. 
&  Eng.  R.  R.  Cus.  840;  Ilynea  b.  Bun  Francisco,  etc.,  R.  On.  (Cat.),  20  Am, 
ftEiiq;.  R.  R.  Ca?.  480;  O'Cnnnor  s.  Boatou,  elc,  R.  Co.,  135  Mass.  353;  s. 
c.  15  Am.  4  Eng.  R.  R.  Cas.  302;  Evnnsicli  o.  G.,  C.  &  8.  P.  R.  Co.,  67 
Texfts,  133;  s.  C.  0  Am.  &  Eng.  R.  R.  Cas.  183. 

Capacity  of  Child  Fourtean  Taart  Old. — An  infant  of  the  age  of  fourteen 
years  U  {irusumed,  until  proof  is  given  to  the  contrnr;,  to  liavc  sufficient 
capacitj  to  be  sensible  of  danger  and  to  liavc  tlic  power  to  avoid  it.  This  is 
the  rule  laid  down  b;  the  supremo  court  of  Pennsylvanin.  Nsglo  o.  Alle- 
gheny Vallcj  R.  Co.,  8B  Pa.  St.  35.  In  this  cose,  Paitson,  J.,  said:  "Tho 
law  flies  no  avbitrary  period  when  the  immunity  of  childhood  conBes  and  tlio 
responsibilities  of  life  begin.  For  some  purposes  majority  is  the  rule.  It  is 
not  so  here.  It  wonid  be  irrational  to  hold  that  a  man  was  rcaponsible  for 
bis  negligence  at  twenty-one  years  of  age,  and  not  responsible  a  day  or  a, 
week  prior  thereto.  At  what  age,  then,  must  an  infant's  responsibility  fnr 
negligence  be  presumed  to  commence?  This  question  cannot  bo  answered 
by  referring  it  to  the  Jury.  That  would  furnish  us  with  no  rule  whatever. 
It  would  give  us  a  mere  shifting  atandard,  affected  by  the  sympntliies  or  pre- 
judices of  the  jury  in  each  particular  case.  One  jury  would  fix  the  period 
of  respoualbility  at  14,  another  at  90  or  31.  This  is  not  a  question  of  fact  for 
the  jury.  It  is  a  question  of  law  for  tbc  court.  Nor  is  its  solution  difflctilt. 
The  rights,  duties,  and  responsibilities  of  infants  are  clearly  defined  by  tho 
text-writera,  as  well  as  by  numerous  decisions.  .  .  .  We  have  seen  that  the 
law  presumes  that  at  fourteen  years  of  ago  an  infant  has  sufficient  discretion 
and  understanding  lo  select  a  guardian  and  contract  a  marriage;  is  capable 
of  harboring  malice  and  of  taking  human  life  under  clrcumalanceB  that  con- 
stitute the  offence  murder.  It  therefore  requires  no  strain  to  bold  that  at 
fourteen  an  infant  is  presumed  to  have  sufficient  capacity  and  understanding 
to  be  sensible  of  danger,  and  to  have  the  power  to  avoid  it.  And  this  pro- 
sumption  ought  to  stand  until  it  is  overthrown  by  clear  proof  of  the  absence 
of  such  discretion  and  intelligence  as  is  usual  with  infants  of  fourteen  years 
of  age."  Bee,  also,  Dietrich  c.  B.  &  H.  B.  R.  Co.,  58  Md.  847;  a.  c,  11  Am. 
AEng.  R.  R.  Cas.  115. 

A  boy  sixteen  years  of  age  is  not  an  infant  of  such  tender  years  as  to  re- 
lieve him  from  the  effect  of  contributory  negligence.  Cotgan  c.  West  Phila. 
Pass.  R.  Co.,  4  Weekly  Notes  of  Cas.  (Pa.)  400.  Compare  Hnjcroft  e.  L.  S., 
etc..  R.  Co.,  64  N.  Y.  088  where  it  waa  held  that  the  degree  of  care  to  bo 
exercised  by  a  girl  nearly  seventeen  years  of  age  was  not  as  high  as  that  re- 
quired of  nn  older  person,  and  that  it  was  for  the  jury  to  determine  whether 
she  wa"  gnilty  of  contributorv  negligence. 

Mil  Whether  Negligence  of  Parent  Is  Imputable  to  tha  Child.— Upon  the 
queslion  whether  tho  contributory  negligence  of  the  parents  in  permitting  a 
child  of  tender  years  to  go  nt  Inrgc  is  imputable  to  the  child  and  will  bar 
his  recovery  for  personal  injuries,  there  is  a  conflict  of  authority.  That  such 
contributorj  negligence  of  the  pnrenta  is  fatal  to  the  child's  recovery  is  the 
rulu  in  Cnlifomia,  Illiaoit,  Indiana,  ifaine,  Maryland,  MatiaehtiieiU,  ifin- 
naota,  ^ebrniha,  and  Neie  Fork.  Schicrhold  d!  North  Beach  R.  Co.,  40 
Cal.  447;  Chlciigo,  etc.,  R.  Co.  e.  Gregory,  58  111.  920;'  Chicago,  etc..  R.  Co. 
e.  Becker,  70  III.  25.  84  111.  483;  Evanaville,  etc.,  R.  Co.  e.  Wolf,  60  Ind. 
89;  Jeffersonvilic  R.  Co.  o.  Bowen,  40  Ind.  545;  s.  c,  49  Ind.  IM;  Lafayette, 
etc.,  R.  Co,  o,  Huffman,  H8  Ind.  287;  Brown  u.  European,  etc.,  R.  Co.,  B8 
He,  884  :  McMahon  t>,  N.  C.  R,  Co.,  89  Hd.  4S9;  Lovett  e.  Salem,  etc.,  R. 
Co..  9  Allen  (Mass.),  557;  Mulligan  o.  Curtis,  100  Mass,  612;  Fitzgerald  o. 
St. Paul,  etc.,  R.  Co.,  S9Hinn.83a;B.  c,  8  Am.£  Eng.  R.R.  Caa.  810;Grethen 


^d  by  Google 


TBESPASSBR-  GUILD   ON   TRACE.  421 

a.  Chicago,  etc..  R,  Co.  (C.  C),  19  Am.  4  Eng,  R.  R.  Gas.  343;  Hojer  v. 
Midland  R.  Co.,  3  Nub.  319;  Harlfiuld  c.  Roper,  21  Wend.  (N.  T.)  615; 
Margam  o.  Brooklyo.  etc.,  II.  Co.,  38  N.  T.  456;  Leiimnn  o.  Brooklyn,  28 
Barb.  (N.  y,)  234. 

In  Pennnflvanin  it  has  been  held  that  it  is  contributory  negligence  per  M, 
in  parents  to  suSer  their  chililrea  to  trcspasa  on  the  cars  or  truck  of  u  rail- 
road company.  The  fact  ihnt  the  trespass  was  committed  without  tho 
knonledgc  or  consent  of  the  parentis  immaterial.  Caule;  a.  Pittsburgh,  etc., 
R.  Co.,  66  Pa.  St.  398;  s.  C,  2  Am.  &  Eog.  R.  R.  Cas.  4.  In  this  cnsc.  while 
somo  boya  were  playing  on  a  sand-laden  car  standing  on  a  switch  uithin  iho 
city  limits,  the  train  was  moved  and  the  conductor  ordered  the  boya  off. 
The  youngest,  a  boy  oT  seven  years,  in  jumping  off,  fell  under  the  wheels 
«Dd  was  injured.  AC  the  trial  of  the  suit,  the  plaintiS  offered  to  prove  ilie 
above  (acts  and  others  showing  negligence  b;  defendiint'a  servants.  Held, 
that  the  offers  were  properly  refused,  and  a  verdict  properly  directed  for 
defendant.  Bee,  also,  99  Pa.  St.  49;  a.  c,  4  Am.  &  Erg.  R.  R.  Cas.  5S8, 
vrhere  tlie  rcargumctit  of  the  same  case  is  reported.  Compare  Kay  v.  Penna. 
H  Co.,  65  Pa.  St.  369;  P.  &  R.  R.  Co.  o.  Long,  75  Pa.  St.  257. 

Where  the  child  was  only  in  his  seventh  yesr,  and  wasengi^cd,  at  the  time 
the  accident  happened  which  caused  his  death,  in  furnishing  water  to  the 
conductors  and  drivers  upon  defendant's  cars,  with  the  knowledge  and  con- 
«nt  of  the  plaintiff,  his  mother,  held,  that  it  was  contributory  negligence, 
per  te,  on  the  part  of  the  plaintiff  to  suffer  her  child  to  engage  in  so  danger- 
ous an  employment,  nod  tlint  a  non-suit  was  properly  entered.  Bmitn  v. 
HestooTille,  etc.,  R.  Co.,  92  Pa.  Bt.  450;  a.  c,  2  Am.  &  Eng.  R.  R.  Cas.  13. 

It  ia  held,  however,  that  such  contributory  negligence  on  the  part  of  the 
parent  ia  not  imputable  to  tho  child,  and  is  not  a  bar  to  the  child'a  recovery 
for  injuries  sustained  through  the  negligence  of  the  company.  This  is  the 
mle  iu  Pennsyivania,  Miasnuri,  Connecticut,  Virginia,  Ohio,  and  Alabama. 
Kay  fl.  Pa,  R.,  65  Pa.  St.  2B9;  Smithu.  O'Connor,  48  Pa,  Bt.  218;  Phila,  R. 
Co.  11.  Long,  75  Pa.  St.  257:  Frick  «.  Bt.  Louis,  etc.,  R.  Co.,  75  Mo.  643;  C. 
H.  &H.  R.  Co.r.  Moore,  S9Tex.64;ii,c.,10Am.  &Eng.  RltCaa.  745;Dnley 
n.  N.  &  W.  R,  36  Conn.  591 ;  Birge  b.  Ganiiner,  19  Conn.  607;  Norfolk, 
«tc..  R.  Co.  B.  Ormsby,  37  Gratt.  (Va.)  455;  Belletontaino  It  Co.  u.  Snyder, 
18  Ohio  St.  399;  Cleveland,  etc.,  R.  Co.  «.  Hanson,  80  Ohio,  451;  Qovern- 
ment  St.  R.  Co.  e.  Hanlon,  53  Ala.  70;  St.  L.,  etc.,  R.  Co.  v.  Freeman,  86 
Ark.  41 ;  s.  c,  4  Am,  &  Eng.  R.  R.  Cas.  008. 

Id  Kayo.  Penna.  R.  Co.,  65  Pa.  St.  269,  the  plaintiff,  a  child  nineteen 
months  old,  was  run  over  by  a  car  of  the  defenaant's  upon  a  siding  on  an 
open  lot.  The  lot  was  teased  by  defendant  and  the  public  were  permitted 
to  pass  to  and  fro  upon  it,  and  along  the  track  where  tho  accident  happened 
a  well-worn  foot-path  was  plainly  visible.  The  plaintiff  lived  with  her 
parents  in  a  small  shanty  on  thid  lot,  occupied  without  objection  by  the 
company,  and  being  near  the  scene  of  the  accident.  The  injury' was  caused 
by  detaching  a  lumber  car,  propelled  in  advance  of  the  engine,  and  sending 
around  a  curve  in  the  aiding  on  a  slight  down  grade,  unattended  by  a  bnike- 
man.  Stld,  that  tho  company  had  been  guilty  of  negligence,  and  that  iho 
negligence,  if  any,  of  the  parent,  did  not  attach  to  the  child.  Agnow,  J. 
said,:  "The  doctrine  which  imputea  tho  negligence  of  the  parent  to  1ho 
child  in  such  a  case  as  this,  is  repulsive  to  our  natural  inatincla,  and  repug- 
nant to  the  condition  of  that  class  of  persons  who  have  to  maintain  life  by 
daily  toil.  It  is  not  the  case  where  the  positive  act  of  &  parent  or  guardian 
has  placed  a  child  in  a  position  of  danger,  necessarily  requiring  Ihe  care  of 
tho  adult  to  be  constantly  exercised,  as  where  a  parent  takes  a  cliild  into  the 
cars,  aad  by  his  neglect  suffers  it  to  bo  injured  by  straying  off  upon  the 
platform.    But  here  a  mother  toiling  for  daily  bread,  and  having  done  tho 


^d  by  Google 


422  CHRYSTAL  V.    TROT   AND   BOSTON    R,    CO, 

best  slie  i^ould,  in  the  midit  of  her  neceaaary  employment,  losea  sight  of  her 
child  for  an  ioEtnDt,  and  it  Btra;B  upoD  the  track.  With  no  menna  to  pro- 
vide a  servant  for  her  child,  why  should  the  Dcce^sities  of  her  position  in 
life  atCocli  to  the  ehild,  and  cover  it  with  blame  ?  When  injured  by  positive 
neglif^ncc,  why  should  it  Im  without  redress  ?  A  negligent  wrong  is  done; 
it  is  incapable  of  contributing  to  it;  then  why  should  the  wrong  not  be 
compensated  !"    See,  also,  P.  &  R.  R.  o.  Long,  75  Pu.  St.  S57, 

Where  a  child  two  jears  and  twenty  days  old  strays  away  from  hia  home 
without  the  knowledge  or  conseat  of  his  parents,  and  goes  upon  a  railroad 
track,  which  is  about  100  teeC  from  hia  home,  and  within  three  minutes  after 
leaving  home  is  budlj  liurt  by  being  run  over  by  a  car  of  the  defendant  com- 
pany. Meld,  that  it  cannot  be  said  as  a  matter  of  law,  that  the  failure  of  the 
parents  to  keep  the  cliild  away  from  the  railroad  track  was  per  «e  culpable 
negligence,  contributing  to  the  injury.  Smith  d.  Atchiaon,  etc.,  R.  Co.,  25 
""  1.  738 ;  8.  c,  4  Am.  &  Eng.  R.  R,  Cns.  534. 
tglleence  of  P are nts^Qu action  for  Jury.— '* 
ed  duo  care  in  looking  after  the  child,  is  oi 
for  the  jury.  McOeary  o.  Eastern  R.  Co.,  135  Mnss.  3G3;  s.  c.,  IS  Am.  & 
Eng.  R.  R.  Cas.  407;  Lynch  e.  Smith,  104  Hnss.  53;  Ilil  n.  Forty-second  St., 
etc.,  R.  Co.,  47  N.  Y.  807;  Cosgrove  v.  Ogden,  49  N.  Y.  855;  Prcndergast 
e,  N.  Y.  C.etc.  R.  Co.,  58  N.  Y.  652;  Penna.  R.  Co.  o.  Uwia,  79  Pa.  St.  88; 
P.,  A.  &  M.  R.  Co.  e.  Pearson,  72  Pa.  St.  109;  Dahl  c.  Milwaukee  City  K. 
Co.  (Wis.).  16  Am,  &  Eng.  R.  R.  Cas.  131. 

Though  an  infant  of  tender  jctra  may  recover  for  an  injury,  partly  caused 
by  his  own  imprudent  act,  the  father  cannot.  Enowingly  to  permit  a  child 
less  than  four  years  old  to  run  at  large,  without  a  protector,  in  the  public 
streets  of  a  large  city,  constantly  traversed  by  cars  and  other  vehicles,  is  neg- 
ligence on  the  part  of  the  father,  Gtaasey  e.  H,,  M.  £  F.  P.  R.  Co.,  S7  n. 
Bt.  173. 

It  is  negligence  and  would  prevent  a  recovery  for  parents  to  suffer  no  in- 
fant less  than  two  years  and  two  months  old  to  wander  upon  a  railroad  track 
when  trains  are  constantly  passing.    P.  &  K.  R.  o.  Long,  73  Pa.  St.  257. 

Where  Parent  Conducts  Child  lo  Place  of  Danger.— In  Grelhen  e.  Chi- 
cago, etc.,  R.  Co.  (U.  S.  C,C.  Hinn),  a  woman  and  her  child  started  to  walk 
up  the  rnilroad  track  in  a  city,  which  track  was  commonly  used  by  the  pub- 
lic as  afoot  path  without  objection  on  the  part  of  the  company.  Just  at 
the  point  where  a  street  crossed  the  track  at  right  angles,  the  woman  and 
child  were  run  over  by  a  train  mnking  a  flying  switch  without  signal.  Held, 
that  as  the  woman  and  ehild  hnd  reached  the  dangerous  poaiiion  in  whicb 
they  were  struck  by  walking  on  the  track,  they  had  been  guilty  of  such  con- 
tributory negligence  as  to  preclude  recovery  from  tlio  company  for  causing 
thoir  death.  See,  also,  Stillson  b.  H.  &  St,  J.  R.  Co.,  G7  Mo.  C71.  Bee, 
however.  No,  Pa.  R.  Co.  b.  Mnhonoy,  57  Pa.  St  187;  Pittsburgh,  etc.,  R. 
Co.  V.  Ciihiwcll.  74  Pn.  St.  421. 

Negligence  of  Poor  Parents.— It  has  been  held  Ihnt  poor  parents  of  infanta 
are  not  guilty  of  contributory  negligence  in  failing  to  prevent  them  from 
KTrnying  npon  the  railroad  track.  P.  &  R.  R.  o.  Long,  ?S  Pn.  St.  iHT; 
Pi-imnCo.o.  James  ai^Pa.  St.  194;P.,A.&.M.R.  Co,  D.  Pearson,  73  Pa.  St. 
109;  Kny  e.  Ptniin,  R,  Co.,  O.'i  Pa.  St.  389;  Wnhcrs  e.  C,  R.  I.,  etc..  R,,  41 
Iowa  71;  Isnbel  d.  H.  &  St.  J.  R.,  00  Mo.  473;  Hoppe  v.  Chicago,  M.  4"8t. 
P.  R.  Co.,  01  Wia.  337;  s.  c,  10  Am.  &  Eng.  R.  R.  Cns.  74. 

When  tho  parents  of  nn  infant  arc  unable  to  give  him  their  personal  care 
and  intrust  him  to  the  supervision  of  a  suitable  person,  the  negligence  of  the 
lottcr  cannot  bo  imputed  to  the  parent,  and  will  not  defeat  a  recovery  for 
negligence  resulting  io  tho  death  of  the  infant,  Walters d.  C,  R.  I.,  etc..  R. 
Co.,  41  Iowa  71.     Sec,  however,  Hogan's  Petition,  7  Cent.  L.  J.  811-818. 


^d  by  Google 


TRESPASSBB — CHIIJ)    OK   TEACK.  423 

Pattenon  on  Railwsj  Accident  Law,  p.  77  <&  2  Eedfleld  B.  Cas.  SOI,  where 
this  doctrine  ia  criliciaed. 

Fnlluro  to  Fenca  Tracks  u  AfTsctIng  Trsspauers. — A  railroad  company 
il  not  required  to  fence  its  tracks  against  trespaaserB,  Fences  are  required  to 
protect  animals,  not  rational,  intelligent  beings.  Nolan  e.  N.  Y,,  etc.,  R. 
Oo.  CoDR.),  25  Am.  &  Eng.  H.  R.  Cos.  S42. 

A  railroad  compan;  cannot  bo  held  liable,  under  a  statnte  subjecting  it  to 
a  certain  liability  for  failing  to  fence  its  road,  for  an  injury  to  an  infant  child 
caused  by  the  absence  of  such  fence  alone.  Walkenbauer  c.  Chicago,  etc., 
R.  Co.,  17  Fed.  Rep.  136;  s.  c,  15  Am.  &  Eng.  K.  R.  Cas.  400.  See,  also, 
Morriasey  r.  Providence,  etc.,  R.  Co,  (R.  I.),  8  Atl.  Rep.  10;  Smith  e.  Tupp, 
13  R.  r.  152. 

In  Fitzgerald  n.  St.  Paul,  etc.  R.  Co.,  29  Minn.  336;  s.  c,  8  Am.  &  Eng, 
R.  R.  Caa.  810,  statutes  requiring  railroad  companies  to  fence  their  roadi 
and  making  liable  for  atl  damages  sustained  for  failure  so  to  do,  held,  in- 
applicable to  the  case  of  an  infant  straying  on  an  unfenced  railroad  track. 

Contrary  Doctrine.— See,  however,  Isabel  r.  H.  &  St.  J.  R.  Co.,  flO  Mo 
475;  Hayes D.  Michigan  Central  R.  Co.,  Ill  U.  8.238;  s.  c.  IS  Am.  &£ng. 
R.  R  Caa.  8«4;  Keyser  c.  Chicago,  etc.,  R.  C'i.,'50  Mich.  G59;  a.  c,  10  Am. 
&  Eng.  R.  R.  Cas.  01;  where  the  contrary  doctrine  is  maintained. 

Wliera  there  is  no  statute  requiring  a  railroad  company  to  fence  Ita  track 
for  the  protection  of  personal  injuries,  a  charge  that  if  the  construction  of  a 
fence  would  have  prevented  the  accident  and  saved  the  child,  it  was  negli- 
.  gent  in  the  defendant  not  to  have  had  a  fence  there,  ia  all  that  can  be  asked 
on  that  point  in  an  action  against  the  company.  Marcott  c.  H.,  H.  &.  O.  H. 
Co.,  40  Mich.  00;  a.  c,  8  Am-  &  Bng.  R.  R.  Cas.  806. 

Whero  a  child  between  eight  and  nine  years  of  age  playing  in  a  public 
park,  strayed  i^pon  the  railway  and  was  injured,  hSd,  that  it  was  a  qoea- 
tion  of  fact  for  the  jury  whether  the  absence  of  a  fence,  required  by  a  muni- 
cipal ordinance,  was  the  cause  of  the  injury.  Hayes  b.  Michigan  Osntral  R. 
Co.,  Ill  U.  S.  228;  s.  c,  IS  Am.  &  Eng.  R.  R.  Cas.  804. 

Ewldsnes. — Where  Uie  question  is  whether  a  child  injured  while  walking 
upon  a  railroad  track  ia  guilty  of  a  want  of  ordinary  care,  evidence  is  ao- 
Btistible  to  show  that  many  peraons — men,  women,  and  children — had,  for 
years  before  the  accident  in  question,  been  in  the  habit  of  passing,  daily  and 
hourly,  up  and  down,  in  the  same  pathway  on  which  the  injured  penon  was 
passing,  as  such  evidence  would  tend  to  show  a  license,  or  to  repel  the  in- 
i6rencc  of  a  want  of  ordinary  care,  and  also  to  ahow  a  lack  of  auch  care  on 
defendant's  part  as  the  facts  required.  Townley  e.  Chicago,  etc.,  R.  Co.,  08 
Wis.  626;  a.  c,  4  Am.  &.  Eng.  R.  R.  Cas.  562. 

In  an  action  against  a  ruilrnitd  company  for  the  negligent  killing  of  a 
child  upon  the  track,  it  is  competent  for  the  engineer,  when  asked  why  he 
did  not  see  the  children  upon  the  track,  to  testify  that  they  could  not  be  on 
the  track  without  his  seeing  them,  unless  they  got  on  from  the  ditch  on  the 
left-hand  side  of  the  engine.  Marcott  e.  H.,  H.  &  O.  R.  Co.,  8  Am.  &  Eng. 
R.  R.  Cas.  808. 

in  an  action  against  a  railroad  companyfor  personal  injuries  occasioned  to 
the  plaintifi,  a  boy  nine  years  old,  by  being  struck  by  a  train  of  cars  run  by 
defendant  along  a  highway,  evidence  that,  prior  to  the  accident,  plaintiff 
had  been  seen  on  the  tracks,  and  had  been  warned  not  to  go  there,  is  ad- 
missible upon  the  question  whether  he  was  using  due  care.  Fitzpatrick  «. 
Fitchburg  R  Co.,  128  IHase.  13;  a.  c„  1  Am.  &  Eng.  R.  R.  Oaa.  154. 

In  an  action  for  negligently  running  over  a  child  on  ita  track,  evidence  ia 
admissible  upon  the  subject  of  defendant's  negligence  that  the  defendant 
failed  to  fence  its  tracks  as  required  by  statute.     Keyaer  e.  Chicago,  etc.,  R.  . 
Oo.  (Hicb),  10  Am.  ft  Eng.  R.  R.  Cas.  01. 


^d  by  Google 


424    ST.  LOCIS,  lEON  MOUNTAlrf,  ETC.,  R.  00.  V.  MONDAY. 

Statements  by  Employeos  b«fora  or  After  Aooldent— Admiuibility  In  Evt- 
denc«  u  Part  of  Res  Oetta. — Pcnna.  Co.  t>.  Riidcll,  'I  Am.  &  Eiig.  K.  R.  Cai. 
30;  Pittsburgh,  etc.,  R.  Co,  o.  Wriglit,  5  lb.  638;  Hooru  p.  Clilcafro,  etc..  B. 
Co.,»Ib.40l!  Curl  e.  ChiMffo,  etcR.  Co.,  11  lb.85;  Diciridi  u.  Baltimore, 
etc.,  R.Co.,  11  lb.  115;  MiLeod  e.Gintlier,  lli  lb.  291;  Patterson  i.  Wa> 
bosh,  etc.,  R.  Co.,  18  lb.  130;  AInbamn.  etc.,  R.  Co.  e.  Havk,  18  lb.  104; 
Baltimore,  etc.,  R.  Co.  e.  Slate,  19  lb.  8S;  Diirkce  e.  Cent.  Piic.  R.  Co.,  S6 
lb.  800;  Viuksburgli,  etc.,  R.  Co.  s.  O'Brien,  27  lb.  232.,  ante,  and  note 


.  Loura,  Ibon  Modntain  and  Sodthebn  "R.  Ca 


MONDAT. 

(Adwma  Oat,  Arkanta*.    June  IB,  1887.) 

A  railvay  company  heving  a  legal  rigbt  to  a  clear  track,  except  at  cron- 
logs,  owes  no  duty  lo  a  trespiisser  walking  on  the  track  from  one  station  to 
another  until  his  presenco  is  ditcovered,  aad  even  then  those  in  char^  of  an 
approaching  train  maj  assume  that  lie  will  get  ofi  the  track  to  avoid  a  collis- 
ion, unless  the;  can  see  from  bis  condition,  or  tlio  circumstances  surround- 
ing liim,  that  he  cannot  get  out  of  danger. 

The  IJabilit;  of  a  railroad  companj  to  n  trespasser  on  its  track  must  bs 
measured  bj  the  conduct  of  its  emplojces  after  the;  become  aware  of  his 
presence  there,  and  not  b;  their  oegligcnco  in  failing  to  discover  him  ;  fcHT 
as  to  such  negligence  the  contributor;  negligence  of  tbe  trespasser  will  d^ 
feat  a  recovery. 

Appeal  from  circnit  conrt,  Pnlaeki  county. 
Dodge  i£  Johnton  for  njipclliint. 
W.  Jj.  Terry  and  Blackwood  <&  Williams  for  appellee. 

Smith,  J. — Monday  brought  this  action  of  tort  for  personal  in  jo- 
Fiom.  ries  Bnstained  hy  liim  wfiilc  walking  on  titc  defendnnt's 

track.  Tlie  answer  denied  iics;1is;eiicc,  and  averred  contributory 
negtigcnee  in  ttie  plaintiff.  Tlie  evidence  tended  to  prove  tliat  tliB 
plaintifE  was  into^iicated,  and  liad  set  ont  at  night  to  w:i1k  along 
tlie  railroad  track  from  one  elation  to  another;  tliat,  after  day- 
light,  he  saw  a  train  coining  toward  him,  wliilc  lie  was  yet  dis- 
tant three  or  fonr  Imndred  yards ;  tlint  he  did  not  leave  the  track, 
bnt  walked  on  abont  100  yards  to  a  point  where  a  neighborhood 
road  intersected  tbe  truck,  intending  to  get  off  there ;  that,  the 


^dbyGoOglc 


TKB3PA8SBB  ON  TEACK — NEGLIGE KOE.  425 

approaching  train  being  now  witliin  100  jarie.  Lis  foot  liecame 
caught  and  fastened  between  the  rail  and  tlie  plank  crossing;  tliat 
be  waved  his  hat  and  slionted,  hut  the  train  came  right  on, — the 
train-men  not  observing  him;  tiiut^in  order  to  save  himself,  he 
threw  liis  body  outside  of  the  track,  and,  in  doing  so,  pulled  his 
foot  out  of  liis  shoe,  and,  just  as  his  foot  got  on  top  of  the  iron 
rail,  the  en£;ino  wJieel  i-an  over  it,  and  cnt  oS  a  part  of  it.  Tljo 
train  passed  on,  nobody  on  it  being  aware  tiint  the  plaintiff  was 
there.  Indeed,  the  engineer,  conductor,  and  br»keman  swore  most 
positively  that  tliey  were  in  the  ciib,  aiid  on  the  lookout  wJign  the 
train  passed  the  crossing,  and  tliat  it  was  impossible  for  the  iiiiurj 
to  have  occnrred  in  the  manner  tlie  plaintiff  stated  without  tlieir 
knowledge.  But  the  plaintiff  had  a  verdict  and  judgment  for 
$1,500.  ^  "^ 

From  the  dnecttons  that  were  given,  and  the  prayers  that  were 
refused,  it  is  manifest  the  court  tried  tlte  case  upon  the  theory  that 
therailmadcompanyowedthephiintiff tiiedutyof  main-  ddtt  or  bait, 
tainiiig  a  sharp  lookout,  and  that  it  was  for  the  jury  to  JSmM*  "™' 
say  whether  it  was  guilty  of  negligence  in  not  discover-  "*^ 
ing  the  plaintiff's  situation  and  stopping  the  train.  In  oi'dcr  to  test 
the  correctness  of  this  charge  it  muse  he  first  determined  what 
was  the  right  of  the  plaintiff  to  he  upon  the  track ;  for  rights  and 
duties  are  correlative  terms.-  "A  duty  owing  to  everybody  can 
never  become  the  foundation  of  an  action  untn  some  individDal  ia 
placed  in  position  which  gives  him  particular  occasion  to  insist 
DDon  its  performance.  Ittlien  becomes  a  duty  to  him  personally. 
The  geueral  duty  of  a  railway  company  to  run  its  trains  with  care 
becomes  a  particular  duty  to  no  one  until  he  is  in  position  to  com- 
plain of  the  neglect.  The  tramp  who  steals  a  ride  cannot  insist 
that  it  is  a  duty  to  him  ;  neither  can  he  when  ho  makes  a  highway 
of  the  railway  track,  and  is  injured  by  the  train."  Cooiey,  Torts, 
660.  A  person  who  goes  upon  a  railroad  track  without  license  or 
invitation  of  the  company  is  a  naked  trespasser.  In  Railroad  v. 
Norton,  24  Fa.  St.  469,  it  is  said  :  '■  Until  the  legislature  shall  au- 
thorize  the  construction  of  railroads  for  something  else  than  travel 
and  transportation,  we  shall  hold  any  use  of  them  for  any  other 
pnrpose  to  be  unlawful.  .  .  ,  When  a  passenger  in  a  railway  train 
ts  injured  without  fault  on  his  part,  the  law  presumes  negligence 
in  tlie  carrier,  for  he  undertook  to  carry  safely,  and  we  hold  com- 
panies to  the  strictest  measure  of  accountability ;  but  that  they  may 
be  enabled  to  carry  safely  the  law  insists  upon  a  clear  track.  If, 
therefore,  a  man  plants  himself  upon  tho  rail,  he  nuist  not  expect 
the  law  to  do  more  for  him  than  to  punish  wanton  injnry.  If  he 
be  injured  from  the  ordinary  pni'suit  of  the  company's  legalized 
business,  let  him  blame  his  own  rashness  and  folly."  And  in 
Philadelphia  &  R.  R.  Co.  v.  Hummell,  44  Fa.  St.  37S,  Justice  Streug 


^dbyGooglc 


426     ST.  L0IJ18,  IROM  MOUNTAIN,  ETC.,  E.  CO.  V.  MONDAY. 

remarks  :  "It  is  time  it  elionld  be  itudei'stood  iti  tliis  Gtate  iliat 
tlie  list!  of  a  i-nili'ond  track,  ciittirirr,  or  eiiihaiikineiit  is  cxclusiFc  of 
the  public  everywhere  exceut  wliera  n  \v:\y  crossea  it.  But  if  tlie 
Dse  of  a  riiili-oad  is  exchisively  for  its  owners,  or  tliose  acting  nitder 
them,  if  otiiers  Imve  no  rislit  to  be  upon  it,  if  they  are  wrung, 
doers  whenever  they  intriiue,  the  parties  hiwfnlly  using  it  am 
under  no  obligations  to  take  prccantious  against  possible  injuries 
to  iiitruders  upon  it.  Ordinary  care  they  must  bo  held  to;  but 
they  have  u  right  to  presume,  and  act  on  the  picsuinption,  that 
tlioso  in  the  vicinity  will  not  violate  tlie  laws,  will  not  ti-eepass- 
'upon  t*lie  riglit  of  a  clear  tnick.  Precaution  is  a  duty  only  so  far 
as  there  is  r[!:i£on  for  appi-ehension.  No  one  can  complain  of  want 
of  care  in  auotiier,  where  care  is  only  rendered  necessary  by  his 
own  wrongful  act.  It  is  trno  tliat  what  amounts  to  ordinary  rare, 
under  the  cireumstniiceB  of  the  case,  is  genei-aljy  to  be  determined 
by  the  jury  ;  yet  a  jnry  cannot  liold  parties  to  a  liiglier  staiidnrd 
of  care  than  the  \a\v  requires,  and  they  cannot  find  anything  neg- 
ligence which  is  less  tliini  a  failure  to  dtschai^e  a  legal  duty.  If  tlifi 
law  declares,  as  it  does,  that  there  is  no  duty  resting  upon  any  pei'soo 
to  anticipate  wrongful  acts  in  oihei'S,  and  to  take  prccantioii  nzaiiiftt 
Bach  acts,  then  the  jnry  cannot  say  that  a  failure  to  take  Eucli  pn- 
eantions  is  a  fnilnre  in  duty  mid  negligence.  And  in  Mnllierria 
V.  Delaware,  L.  <fe  W.  R.  Co.,  SI  Pa.  St. 376, it  is  declared:  "Ex- 
eept  at  crossings,  where  the  public  have  a  right  of  way,  a  man  who- 
steps  his  foot  upon  a  railway  track  does  so  at  his  peril.  The  com- 
pany have  not  only  a  right  of  way,  but  snch  right  is  exclusive  at 
all  times  and  for  all  purposes."  Compare,  also,  Canlev  v.  Pitts- 
burgh, C.  &  St.  L.  R.  Co.,  95  Pii.  St.  398 ;  3  Ara.  &  Enjr.  R.  R. 
Gas.  4 ;  Finhivson  v.  Ciiieago,  B.  &  Q.  K.  Co.,  1  Dill .  .579,  per 
Mr.  Justice  liiller ;  Illinois  Cent.  R.  Co.  v.  Godfrey,  71  III. 
SOO. 

The  plaintiff  l>eing  wrongfully  on  the  track,  no  duty  arose  in  liis 
favoriintil  his  presence  was  discovered  ;  for  the  company  had  the 
right  to  nin  its  trains  without  reference  to  the  possibility  that  nn- 
aothorized  persons  niisrht  straggle  upon  its  track.  It  \rai  not 
bound  to  anticipate  siicii  intrusion  ;  Jind,  nfter  lie  had  been  seen 
npon  the  track  by  the  men  in  charge  of  the  train,  they  might  act 
upon  the  presumption  that  he  M'oiild  step  aside  in  time  to  avoid  a 
collision,  unless  it  was  also  obvious  that,  owin^  to  his  condition,  or 
cireuinstances  over  which  he  had  no  control,  he  could  not  cxtric.ite 
himself  from  tho  danger  which  menaced  him.  The  sole  duty 
which  the  corjwratron  owed  hiin  was  not  wantonly,  or  with  reck> 
leee  carelessness,  to  nm  over  him  after  his  sitDatiou  was  ]>ei-ceived. 
Its  liability  must  tliciefore  be  measured  by  the  conduct  of  its  em- 
ployees after  they  became  aware  of  his  presence  npon  the  tracks 
and  not  by  their  "negligence  in  failing  to  discover  uiin;  ior,aa  to 


^d  by  Google 


TEE3PABSEE  ON  TRACK— NEGLIGENCE.  427 

sticli  negligence,  the  contributory  iieglitrence  of  tlie  plaintiff  would 
defeat  a  lecoveiv.  Teii-e  H;inte  &  I.  lH.  Co.  it.  Gjiiljam,  95  Ind. 
286;  s.  c.,  12  Am.  &  Eng.  R.  R.  Gas.  77;  Jolmson  «.  Boston 
&M.  R.,  125  Mass.  75;  Morrissev  v'.  Eiisteni  R.,  126  Mass. 
377 ;  Wiislit  v.  Boston  &  M.  R.,  129  Mass.  440 ;  a  c,  2  Ai.i.  & 
Eng.  R.  R.  Gis.  121;  Wiijlit  ».  Boston  &  A.  R.,  142  Mass. 
296 ;  s.  c.  2S  Am.  &  Eng.  Ur  R.  Gis.  652  ;  Nicholson  v.  Erie  R. 
Co ,  41  N.  Y.  525 ;  Chicaiio  &  N.  W.  R.  v.  Sinitli,  46  Midi.  604; 
B.  c,  4  Am.  &  Eng.  R.  R.  Ciis.  535  ;  Illinois  Cent.  R.  Co.  v.  Hall,  12 
III.  222 ;  B:ihiiiioic  &  O.  R.  Co.  v.  Sehwindling,  101  Eu.  St.  258 ; 
8  Ain.  &  Eng.  R.  R.  Gas.  544;  Tciinonbrock  v.  SoiUliciii  Pae.  C, 
R.  Co..  59  Cal.  269  ;  Van  Scliaiek  v.  Ilndson  River  K.  Co.,  43 N. 
y.  527;  Ridiinond&D.  R.  Co.«.  Anderson,  31  Grat,  812;  Liing 
V.  Holiday  Cieek  R.  Co.,  42  Iowa,  677  ;  Morris  v.  Gliicago,  B.  & 
Q.  R.  Co.,  45  Iowa,  29 ;  Masscr  v.  Chicago,  R.  I.  &  P.  R';  Co.,  6& 
Iowa,  602;  Illinois  Cent.  R.  Co.  v.  Godfrey,  71  III.  500;  Illinois 
Cent.  R.  Co.  v.  Hetlierington,  83  III.  510;  McCl.nren  v.  Indianap- 
oliB&V.R.  Co.,  83  Ind.  319;  s.  c,  8  Am.  &  Eng.  R.  R.  Cas. 
217 ;  Baltimore  &  O.  K.  Co.  v.  State,  62  Md.  479 ;  s.  c,  19  Am.  & 
Eng.  R.  R.  Gas.  83.  These  principles  iiase  often  been  annonnccd 
and  applied  by  this  cotiit.  St.  Louis,  I,  M,  &  S,  R.  Co,  tf.Free- 
man,  36  Aik.  41 ;  Little  Rock  &  Ft.  S.  R.  Co.  v.  Panklmist,  Id. 
871;  St.  LoniB,  I.  M.  &  S.  R.  Co.  v.  Ledbettor,  45  Ark.  246;  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  Wilkei-son,  46  Ark.  513;  Little  Rock, 
M.  R.  &  T.  R.  Co.«.  Haynes,  47  Ai-k.  497;  St.  Louis,  L  M.  &  S. 
R.  Co.  V.  Fairbain,  48  Ark.  491. 

Counsel  for  the  plaintiff  have  been  misled  by  tlie  analogy  of  our 
cattle  cases.  Onrstatnte  makes  railroad  companies  i-esponsible  for 
all  damages  negligently  done  to  persons  and  property  by  the  ope- 
ration of  their  trains;  and  tlie  killing  or  wonnding  of  live-stock 
on  the  track  \sprimafacie  proof  of  negligence.  With 
ns,  around  all  nelds  in  which  crops  are  cnltivated  in-  ^^^Ztm* 
closures  are  i-eqnired  ;  and  horses,  cows,  hogs,  sheep, 
etc.,  are  allowed  to  nm  at  large.  Now,  as  railroads  are  not  re- 
'quircd  to  be  fenced,  it  inevitably  happens  that  these  dnmb  creat- 
ures frequently  stray  upon  a  railroad  track;  and  the  owner  of 
Uieni  is  not  guilty  of  contributory  negligence  in  suffuring  them  to 
go  at  large,  for  snch  is  tiie  universal  custom,  and  was  liefore  any 
Riiiroads  were  btiilt.  Hence  tlieir  occasional  presence  upon  tlio 
truck  is  to  bo  reasonably  anticipated;  and  hence  the  law  iinposeB 
upon  the  persons  in  charge  of  a  train  the  duty  of  keeping  a  vigi- 
lant; outlook  for  them.  But  no  such  duty  arises  in  the  case  of 
Imman  beings,  who  are  possessed  of  leason  and  iiitelligonoo.  They 
are  pi-esumcd  to  know  tiiat  a  railroad  track  is  a  dangerous  place  to 
walk  on  ;  and,  as  they  are  capable  of  taking  care  of  themselves, 
they  take  the  risk  of  the  consequences  upou  themselves  if  they 
(Jo  walk  upon  it. 


^dbvGooglc 


428  LAKE    BHOBE,    ETC.,     E.    00.    V.    PIHOBIH. 

Tlie  injury  in  tliis  case  happened  at  a  crossing.  This,  however, 
is  incjely  nn  nccidental  cJrciiinBtaiice,  not  iiffectiiig  tlie  inerils;  for 
tlie  pluintiff  was  hurt  by  uenson  of  his  walking  laterally  or  length- 
wisu  of  the  ti'ack,  and  not  in  an  attempt  to  croGS  the  railroad  at 
this  point.  Ab  explained  by  one  of  the  plaintifi's  own  witnesses, 
the  cruvicc  butwcen  the  iron  rail  and  tlie  prank  crossing  was  only 
about  three  incites  in  widtli,  and  it  wonld  have  been  iinposelble 
for  the  plaintiff  to  get  his  foot  into  this  in  the  act  of  cro(«ing  the 
track.  Tho  oiily  danger  was  to  persons  walking  up  or  down  the 
I'oad-bed. 

The  circuit  court  tried  the  case  npon  an  unsound  theory,  and  its 
judgment  must  be  I'everscd,  and  cause  remanded  for  further  piv- 
«eedings. 

Liability  of  Railroad  Company  for  N«gifKanc«  In  Failing  to  Dlieovvr  Tm- 
paiisr  on  Track — Liability  Measured  by  Conduct  after  Preienca  Diicov- 
•red.— ScluffliT 0.  Minacapolis,  etc.,  R.  Go.  19  Am.  &  Eng.  R.  IL  Cos.  178  ; 
BOtr.  25,  lb.  BSo. 

General  Liability  to  TraipasMrfc — See  Palmer  p.  Chicago,  etc.,  B.  Co., 
aod  note,  tupra,  p.  S64.  * 


Iil£B  ShOSS  iJTD  MiOHIQAN  SOOTHEBS  B.  0(k 


(Adtatut  Oate,  Indiana.     Octeber  S3,  1887.) 

Where  the  facts  of  a  case  are  undisputed,  and  lead  to  but  one  inference,  the 
4]nestion  of  whether  there  <*»■  or  was  not  negligence  is  a  question  of  law, 
which  it  IB  tho  duty  of  tlie  court  to  dptcrmioe. 

One  who  nttcmpts  to  cross  between  the  csrs  of  a  train  which  he  knows,  or 
might  know  by  using  his  natural  facilities,  is  likely  to  movo  at  sny  moment, 
is  gnilty  of  negligence,  and  cannot  recorer  for  injuries  received  in  such  at- 

The  directions  of  a  brnkeman  to  a  person  to  pass  through  a  train  standing 
on  a  hijthwuy  will  not  justify  him  in  atlcmptlog  to  pass  between  the  can, 
where  tbe  danger  is  obTioue. 

Appeal  bv  defendant  from  a  judgment  of  tho  De,  Kalb  citcnit 
coart  in  favor  of  plaintiff  in  an  action  for  personal  injury  hj 
negligence.     Reversed. 


^d  by  Google 


PASSING    BETWEEN    OAKS — INJURY.  429 

Tlio  facts  are  stated  in  tlto  opinion. 

James  /.  Beat,  O.  G.  Qetsan-Danner,  and  AaMey  Pond  for 
BppelljHit. 

Janus  E.  Rose  and  A.  H.   Chapin  for  appellee. 

Elliott,  J. — Tlie  facts  fonnd  bv  tlie  jury  in  answer  to  inter- 
ro^toi-ies  are  siibstanihilly  tliese :  Tlic  ap|ieilee  was  injured  wliile 
attempting  to  piiBS  between  two  coal  enre  forniiiig  part  wo™, 

of  a  tniin  stand  inj;  ncroae  n  eti-eet  in  the  town  of  Bittler.  He  knew 
tliat  tlio  train  was  a  tlivongli  freiglit  bonnd  west,  imd,  onapproacli- 
ing  the  ti'ain,  lie  stopped  to  the  sontli  of  it  five  or  Ei>:  fuot  and 
Btood  tlici-e  from  Ave  to  eight  minutes  before  lie  utteiapCed  to  pass 
between  tlie  eare. 

He  did  not  know  tlint  an  engine  Avas  attnclted  to  the  train,  bnt 
be  did  not  go  toward  the  head  of  the  train  to  see  Avhcther  tliei-e 
was  an  engine  attadied.  When  the  a  p  pell  go  got  np  between  the 
cars,  lie  stood  on  the  diawbai-a,  and,  at  the  time  he  was  injured, 
"  liad  his  hands  bracing  himself  between  the  cars."  At  the  tiino 
ho  attempted  to  pass  between  the  enm  he  Iind  an  open  pocket-knife 
and  a  cane  in  his  Iiaitds,  and  was  whittling  a  stick.  Tlie  knife  and 
stick  wore  laid  on  the  end  of  one  of  the  care  when  he  got  npon 
then).  In  iiis  effort  to  pass  between  the  care,  lie  raised  liis  foot, 
and  pnt  or  got  it  on  the  crd  of  the  drawbars  on  whicli  he  liad  been 
stanaing.  After  he  got  np  between  the  care  he  picked  np  liis 
knife,  ehnt  it  np,  and  pnt  it  in  his  pocket.  Tiio  cars  were  moving 
fast  enoiigli  for  him  "  to  have  noticed  tlint  tlie  tniin  wns  in  motion, 
had  ho  been  giving  attention  to  the  movement."  No  notice  wna 
given  by  liini  of  his  intention  to  pass  throngh  the  tr.iin  to  any  of 
tlie  ti-ain-incn,  and  none  of  them  knew  that  lie  was  going  to  make 
tho  attempt. . 

A  man  conld,  hy  looking,  have  seen  the  engine  of  the  train. 
The  apjiellee  knew,  before  he  attempted  to  cross,  that  the  train  liad 
broken  in  two.  He  wonld  not  have  made  tlie  attempt  "except  for 
what  a  man  he  took  to  be  a  binkeinan  told  him." 

There  are  cases  wliero  the  conrt  must,  as  a  mutter  of  law,  declare 
that  an  act  coiiEtitntes  negligence.     "Wliere  the  fads  are  w-deii    mou- 
nndispnted  and  lead  to  bnt  one  inference  the  question  S,ot''SoS''to 
whether  there  was  or  w.is  not  negligence  is  a  question  ^™"- 
of  law.     Pittsbnigh,  C.  &  St..  L.  R!  Co.  «.  Spencer,  98  Ind.  186. 
This  is  snch  a  case.     It  mnst  be  altirtncd  as   matter  of  law,  on 
the  facts  cxliibited  in  the  aiiswere  of  liic  jury,  that  the  appellee  was 
guilty  of  negligence  in  attempting  to  pass  between  tlie  p^jp,,,,„ 
cars,  and  in  the  manner  in  whieti  he  took  to  carry  out  Liossr  a  at- 
the  attempt.     He  knew  the  train  was  not  to  remaiti  in  rS"^?Twii» 
the  town,  bat  was  there  on  its  trip  westward ;  and  he 
know  that  it  had  broken  in  two ;  so  that  even  if  he  was  not  ncgli>  - 


^d  by  Google 


430  LAKE    81I0KE,  ETC.,     B.     CO.    D.  PINOHIH. 

geiit  in  making  the  attempt  to  cross,  lie  was  negligent  in  the  man- 
ner in  wlitcli  lie  condnctcd  himself  in  making  liis  wuy  lietween  tlie 
care.  If  it  wei-e  conceded  that  lie  was  witliout  fault  in  endeavor- 
ing to  pass  tlirongli  tlie  train,  still  it  must  be  held  that  he  was  negli- 
gent in  not  exercising  a  liiglier  degree  of  care  in  effecting  what  no 
reasonable  man  conld  avoid  knowing  was  a  dangerons  paesagc  be- 
tween the  cjn's.  He  was  bnrdencd  with  things  that  interfered 
with  his  safely  clambering  through  the  train  ;  Tie  made  no  haste, 
but  laid  the  things  ho  had  in  liis  hands  on  the  end  of  one  of  the 
cars,  and,  before  leaving  his  dangerons  position,  picked  them  op 
and  pnt  one  of  them  in  his  jwcket.  This  was  not  sneh  care  as  was 
required,  even  if  he  had  been  crossing  with  the  permission  of  the 
railroad  company  and  without  fault.  It  by  no  means  follows  be- 
cause a  man  may  do  an  act,  tliat  he  m.ay  do  it  carelessly.  But  we 
need  not  place  onr  decision  upon  the  ground  that  the  manner  in 
which  tliQ  appellee  attempted  to  cross  between  the  cni-s  made  him 
guilty  of  eontribntory  neglij:euce ;  for  he  was  guilty  of  negligence 
in  making  the  attempt.  There  was,  therefore,  negligence  in  en- 
tering upon  tiie  act,  as  well  as  in  the  manner  of  performing  it.  A 
pei'son  who  lias  knowledge  that  a  train  of  cai-s  is  stopping  tempo- 
I'ariiy  at  a  way  station,  on  its  way  to  its  destination,  has  no  right  to 
iiBSumo  the  risk  of  passing  between  the  cars.  It  is  a  danger  so  im- 
mediate and  so  great  that  ho  must  not  incur  it,  O'Mara  u,  Dela- 
ware &  H.  C.  Co.,  18  Hun,  192 ;  Memphis  &  C.  R.  Co.  v.  Cope- 
land,  61  Ala.  376  ;  Stillson  v.  Hannibal  &  St.  Jo.  R.  Co.,  67  Mo. 
«71;  Lewis  v.  Baltimore  &  O.  R.  Co..  38  Md.  588;  Holden  v. 
Great  Western,  etc.,  Co.,  30  U.  C.  C.  P.  89.  It  will  not  avail  the 
plaintiff  that  he  was  not  fully  aware  of  his  danger;  for  a  plaintiff 
18  bound  to  know  the  extent  of  (he  danger  in  oases  like  this,  where 
the  circumstances  are  known  to  him,  or  the  hazard  is  ap|)arent  to 
a  rensonabiy  pnidont  man.  Pennsylvania  R.  Co.  v.  Henderson, 
43  Pa.  4i9  ;  Sonthern  R.  Co.  v.  Kendiick,  40  Miss.  374. 

A  man  must  use  liis  senses,  and  is  not  excused,  where  lie  fails  to 
discover  the  dansrer,  if  he  has  made  no  attempt  to  em])loy  the  fac- 
nllios  nature  has'giveu  him.  2  Wood  R.  li.  1319,  note  2  ;  Toledo 
&  W.  R.  Co.  V  Goddard,  25  Ind.  200. 

One  who  atterupts  to  cross  between  the  care  of  a  train  which  he 
knows,  or  might  know  by  using  his  natural  faculties,  is  likely  to 
move  at  any  moment,  is  guilty  of  negligence. 

But  here  the  case  is  stronger,  because  the  fact  is  that  the  appel- 
lee might  have  kiiown  by  observiition  or  "by  feeling"  that  the 
ti'ain  was  actually  in  motion  when  he  attempted  '"  to  get  down." 

The  fact  that  n  phiintiff  has  knowledge  of  a  danger  that  he  will 
encounter  if  he  pursues  liis  way  does  not  always  necessarily  pre- 
clude a  reeoverv,  bnt  it  is  in  every  case  an  important  factor.  To- 
ledo, W.  &  W."R.  Co  V.  Brannagan,  75  Ind.  490 ;  s.  c,  5  Am.  A 


^d  by  Google 


PA88ING    BETWEEN    CAH8 — INJtJBT.  431 

Eiig.  R  R.  Cas.  630,  and  rases  cited  ;  riuiitington  v.  Breen,  77  Iiid. 
29 ;  Mnrpliv  -o.  Indianapolis,  83  Tiid.  76 ;  Wflsori  v.  Trafalgar,  etc. 
Co.,  Id.  326";  Henry  County  Tiunp.  Co.  v.  Jackson,  86  Ind.  Ill ; 
Nave  V.  Fiaclc,  90  Ind.  205 ;  Albion  v.  IlatHck,  Id.  545 ;  Porter 
County  V.  Doml>ke,  94  Ind.  72;  Sotilh  Bend  v.  Hnrdy,  98 
Ind.  577 ;  Indianapolis  v.  Cook,  99  Iiid.  10 ;  Aurora  v.  Bitner,  100 
Ind.  396;  Eeacli,  Contrib.  Neg.  40-25S.  Bnt  the  fact  tliaC  the 
danger  is  known,  or  might  be  known  by  the  exercise  of  the  natnral 
faculties,  will  prechido  a  recovery,  where  it  is  immediate  and  of 
sncii  a  chai'acter  as  to  impose  npon  one  ^vllo  nndcrtakes  to  pass  the 
danger,  a  haziird  that  a  prudent  inaii  would  not  incur.  A  man 
lias  no  right  to  cast  himself  tipon  a  known  danger,  where  tlie  act 
subjects  liim  to  great  peril.  If  there  is  a  risk  apparent  or  known 
that  will  probably  rcsnlt  in  injnry,  he  mnst  not  encounter  it.  To- 
ledo, W.  &  W.  K.  Co.  1).  Brannagan,  supra.  It  is  to  be  deter- 
mined from  the  facts  of  the  case  whether  tlie  known  danger  is 
likely  to  subject  the  plaintiff  to  injury,  and,  if  it  is,  then  he  must 
be  held  guilty  of  negligence  in  encountering  it.  While,  therefore, 
it  cannot  bo  held  that  one  who  dues  not  go  out  of  his  way  to  avoid 
a  known  danger  is  not  always  gnilty  of  contributory  negligence ; 
yet  it  must  be  held  that  he  is  guilty  of  negligence  where  lie  at- 
tempts to  pass  the  danger,  where  there  is  sncii  a  probability  of  in- 
jury as  would  deter  a  reasonable  man  from  assaming  the  rJsk  of 
passing  it. 

If  the  risk  is  great,  or  is  snch  as  a  pradent  person  would  not  as- 
same,  then  the  person  who  does  assume  it  is  guilty  of  such  con- 
tribn  tory  negl  igence  as  will  jireclude  a  recovery,  Gosport  v.  Evans,  1 8 
Am.  &Lng.  Corp.  Cas.  275.  In  thiscasc,  the  risk  of  passing  between 
a  train  of  cars  likely  toget  nnder  way  at  any  moment  was  snch  as  no 
one  could  assume  without  being  guilty  of  negligence.  This  is  one  of 
the  cases  where  it  must  be  declared,  as  a  matter  of  law,  that  the 
risk  is  so  great  that  no  one  who  has  a  knowledge  of  the  danger  haa 
a  right  to  assume  it. 

The  direction  of  a  brakeman  to  a  [>ei"son  to  pass  through  a  train 
standing  on  a  highway  will  not  justify  him  in  attempting  to  pass 
between  the  ears,  where  the  danger  is  obvious.  Even 
the  case  of  passengers'  obedienco  to  the  directions  of  bra™™  SS 
the  conductor  will  not  avail  the  passenger,  if  the  danger 
-of  obedience  is  plainly  apparent.  In  that  class  of  cases,  as  is  well 
known,  the  passenger  has  mncli  greater  claims  to  protection  than  a 
traveller  along  a  highway  ;  and  yet  the  overwhelming  weight  of 
authority  is  tiiat  the  passenger  cannot  rely  upon  the  conductor's 
directions,  where  they  would  lead  him  into  danger  plainly  open  to 
observation.  In  the  case  of  Cjiicinnati,  H.  &  1.  R.  Co.  v.  Carper, 
ante,  p.  36,  the  anthorities  on  this  subject  are  collected,  and  it  is 
nnnecessary  for  ns  to  again  consider  them. 


^dbyGoOglc 


432    LOUISVILLE,    NEW   ALBANY,   ETC.,    E.    CO.   V.    PHILLlPa. 

One  important  fact  found  in  favor  of  a  defendant  may  some- 
times ciidcle  itim  to  n  jii(]<riiieiit  on  the  answers  of  the  jury  to 
flpeciiil  interrogatories.  It  is  apparent,  tlierefore,  tliat  a  defendant 
may  obtain  a  judgment  with  less  ditiiculty  tiiair  a  plaintiff,  who  has 
tlie  bnrden  of  proof.  Rice  v.  Evansville,  108  liid.  7 ;  s.  c,  58  Am. 
Hep.  22.  In  the  pi'eseut  case  these  answers  find,  in  favor  of  the 
defend;int,  tlio  important  fiicts  tliat  the  plaintiff  attempted  to  p.tBS 
through  tlie  cars  of  a  ti'aiii  wliich  lie  knew  iniglit  move  in  an  in- 
stant after  he  got  npon  them,  and  that,  in  th«  attempt,  lio  did  not 
Hse  due  care.     Tlie  question  was  presented,  in  a  case  very  like  the 

f)roEcnt  in  principle,  ii]>oii  answer  to  interrogiitorics;  and  it  waa 
icid  that  the  defendant  w-is  entitled  to  a  judgment  on  tlie  answers. 
Thompson  i'.  Cincinnati,  L.  &  C.  E.  Co.,  54Iiid.  197. 

Jmlgment  reversed,  and  eanso  remanded,  with  instnictions  to 
enter  judgment  for  tlie  appellant  on  tlieanswci-s  to  inten-ogatories. 
MrrcHELL,  J.,  did  not  take  part  in  the  decision  of  this  cause. 

Whcro  Faott  aro  Unditputed,  Quettion  of  NoKllKencs  U  for  Court. — 
Ohio,  etc.,  II.  Co.  «.  Ccilhirn,  5  Am.  &  Eiig.  R.  It.  Cns.  054;  Colorado Ctat. 
R.  Co.  0.  Holmes,  8  lb.  410;  Husrin  d.  Cliicngo,  etc.,  R.  Co.,  18  lb.  43B;  Dun 
V.  Scabo&rd.  etc.,  It.  Co.,  IS  lb.  363;  Bohnnn.  Milwaukee,  etc.,  R.  Co.,  191b. 
272;  Lcliij;li  V.  R.  Co.  v.  Geiner,  88  lb.  397;  Note,  25  lb.  834. 

Osnaral  Liability  to  Treipassera.  See  Poimei  e.  Chicago,  etc.,  B.  Co., 
ftnd  acta,  mpra,  p.  864. 


LoDiBTiLLB,  New  Albany  asd  Chicago  B.  Ca 


Phillips. 

{Advanee  Gate,  Indiana.     October  12,  18S7,) 

While  paaaing  along  &  street  where  defendant's  track  was  laid,  and  wher» 
tbc  public  had  a  riglit  to  travel,  plaiatiR  caugliC  hia  foot  between  a  rail  and 
a  plank  inside  tlie  track,  and  being  unable  to  extricate  it,  and  wliile  thus 
fnntencd  was  run  over  by  one  of  dcTcndant's  trains.  The  track  where  plain- 
tiS  waa  injured  was  ncgtigcntlj  constructed  and  llio  train  negligcntl;  run. 
Still,  that  tiiQ  plaintiff  naa  not  a  trespasser  who  had  no  riglit  to  euct  can 
from  the  dcfcadant^  and  tlio  defendant  was  liable  for  tbo  injury. 

Appeal  from  circnit  conrt,  Lawi-cnce  county. 
Action  for  personal  iiijnrips. 

Oenrfff  W.  Friedley  and  Wm.  II.  Martin  for  appolUnt 
£ast  <&  East  and  Geo.  W.  Choper  for  appellee. 


^d  by  Google 


TRACK    IN    STKEETC— IMJDBY— NEGLIQENOB.  433 

Elliott,  J. — The  appellee  alleges  in  tlie  first  paragraph  of  his 
conipluiiic  that  the  track  of  the  appellant  is  laid  upou  Railroad 
street  in  the  city  of  Bloomiiigton,  for  the  distance  of  f*ci». 

.  one-half  of  a  inilu;  that  it  crosBes  several  streets,  among  others 
Fourtii  and  Fifth  streets ;  that  in  constructing  the  track  a  space  of 
tliree  or  four  inches  was  left  hetween  the  guard-rail  and  the  rails 
of  the  track  J  that  od  the  twenty-seventh  day  of  December,  1881, 
the  appellee,  without  any  fault  or  negligence  on  hie  part,  was 
oroeeiiig  the  track,  and  cauglit  his  foot  in  the  space  hetween  the 
guurd-rail  and  the  rails  of  the  track;  that  the  appellant  negli- 
gently and  carelessly  ran  one  of  its  trains  upon  the  appellee  while 
Ills  foot  was  fastened  between  the  rails,  and  greatly  injured  him. 
The  second  paragi'aph  of  the  complaint  contains  snbBtantially  the 
same  allegations  as  to  the  appellant's  negligence  in  running  a  train 
upon  the  appellee  while  his  foot  was  fustened  between  ttie  rails, 
as  to  his  own  care,  and  as  to  the  occupancy  of  Railroad  street  by 
the  appellant's  track ;  bat  it  also  alleges  that  for  the  use  of  persona 
travelliiig  upon  the  street  the  appellant  had  constructed  and  main- 
tained a  walk  or  platform,  and  that  it  was  guilty  of  negligence  ia 
constructing  and  maintaining  the  walk,  thereby  endangering  the 
life  and  limbs  of  those  who  travelled  over  it.  Tiiere  was  no  de- 
murrer addi-eseed  to  the  complaint,  nor  is  there  any  attack  upou  it 
that  wc  can  praperly. notice,  although  counsel  have  assigned  as 
error  rulings  upon  demurrers  to  eacli  paragrapli  of  the  complaint. 
We  do  not,  therefore,  pass  upon  the  sufficiency  of  the  complaint, 
but  condne  our  decision  to  such  questions  as  are  properly  presented. 

Th^  material  facts  which  are  established  by  the  evidence  are 
these :  In  1853  the  track  of  the  appellant  was  constructed  upon 
and  along  Raiii-oad  street,  in  the  city  of  Bloomington,  and  has 
since  been  maintained  and  used.  Between  the  ti'acks  of  tlie  com- 
pany and  on  each  side  the  ground  is  covered  by  planks.  On  the 
twenty-seventh  day  of  December,  1882,  the  appellee,  a  lad  about 
eight  years  of  age,  was  sent  on  an  errand,  and  passed  down  Fifth 
street  until  he  reached  Railroad  street,  and  there  entered  npon  the 
track  laid  in  the  street.  From  this  point  he  walked  toward 
Fourtli  street,  and  when  opposite  appellant's  depot,  and  within  20 
feet  of  Fourth  street,  his  foot  was  caught  between  the  rail  of  the 
track  and  the  plunk  on  the  inside  of  the  track.  His  foot  was  so 
firmly  fastened  that  he  could  not  extricate  it,  and  while  he  was 
thug  fastened  a  train  of  cars  was  run  upon  him,  and  he  was  very 
severely  maimed  and  injured.  The  employees  of  the  appellant 
were  guilty  of  negligence  in  the  management  of  the  tram,  hut 
there  was  no  intentional  or  wilful  wrong  on  their  part.  The  track 
was  negligently  constructed  and  maintained,  and  was  in  such  a 
condition,  through  tiie  fault  of  tlie  company,  as  to  endanger  the 
lives  and  limbs  of  those  walking  along  the  track  laid  in  the  street. 

It  is  important  to  keup  in  mind  the  fact  that  the  injury  to  the 
81  A.  &  E.  R.  CaB,--28 


^d  by  Google 


434    LODIHVILI.E,   NEW  ALBANY,    ETC.,    R.    CO.   V.    PHILLIPS. 

appellee  did  not  occur  at  a  street  crossing,  but  at  a  point  on  the 
ti-ack  laid  along  a  street  20  feet' north  of  tiie  croasing.  If  tlie  in- 
jury had  been  caused  solely  by  the  negligence  of  tlie  appellant  in 
constructing  or  maintaining  the  ci'OEsiiig,  tliere  would  be  no  donbt 
as  to  the  appellee's  riglit  of  recovGry;  for  it  is  the  duty  of  a  rail- 
road eoinpaity  to  raaiiUain  street  or  highway  crossings,  clianged  by 
it  for  its  own  purpose  atid  convenience,  in  a  reasonably  safe  condi- 
tion for  passage.  Delzel!  v.  RailioHd  Co.,  32  Ind.  45;  RiiiJroad 
Co.  V.  Stout,  53  Ind.  143;  Railway  Co.  v.  Smith,  91  Ind.  119;  a. 
o.,  13  Am.  &  Erig.  R.  R.  Cas.  6U8 ;  Riiilroad  Co.  v.  McLeiidon, 
0)3  Ala.  266;  Kelly  v.  Railway  Co.,  28  Minn.  98;  Oliver  ti.  Rail- 
road Co.,  9  Eng.  R.  350 ;   2  Woods,  R.  Law,  1382. 

lint  tlie  appellee  was  not  injured  at  a  crossing,  so  that  the  mle 
we  have  stated  cannot  directly  apply,  although  the  principle  which 
it  asserts  may  exert  an  important  influence  in  tlie'decision  of  the 
case;  for,  if  tlie  place  where  the  injury  was  inflicted  was  still  a 
street,  tlieprinciple  the  rale  cni)>odies  does  exert  a  potent  influ- 
ence. 2  Woods,  Ry.  Law,  958.  If  the  nlace  where  the  accident 
occurred  was  exclusively  the  track  of  tlie  railroad  company,  in 
which  the  public  had  no  rights,  then  there  can  he  no 
^aSjSai^^  recovery  on  the  sole  ground  that  the  employees  of  tlie 
appellant  were  negligent  in  the  management  of  the 
train  which  ran  upon  the  appellee;  for  it  does  not  appear,  either 
by  positive  evidence  or  by  inference,  that  they  knew  that  the  lad 
was  fastened  to  the  track.  Had  they  known  of  liis  unfortunate 
situation,  it  would  have  been  their  duty,  even  had  he  been  on  a 
track  in  which  the  company's  right  was  exclusive,  to  have  used 
reasonable  effort  to  bring  the  train  to  a  stop.  If  the  employees 
see  a  man  bound  to  the  rails  in  time  to  check  the  train,  they  must 
use  reasonable  measui-es  to  check  it,  and  not  siifler  it  to  run  upon 
the  helpless  man  ;  bat  if  they  do  not  see  him  in  time  to  check  the 
train  the  company  cannot  be  held  liable,  nor  could  it,  even  in  such 
a  case,  be  held,  unless  the  emnloyecs  knew  of  the  helpless  condi- 
tion of  the  person  on  tiie  tnick.  Railroad  Co.  v.  Pitzer,  109  Ind. 
179;  B.  c.  25  Am.  &  Eng.  R.  R.  Cas.  313;  Railroad  Co.  v.  Huff- 
mann,  28  Ind.  287;  Railroad  Co. «.  Miller,  2b  Mich.  274.  On  the 
hypothesis  that  the  place  where  the  appellee  i-eceived  his  injury 
was  exclusively  the  roadway  of  tiie  company,  something  must  be 
superadded  to  the  negligence  of  those  in  chargeof  the  train  in  or- 
der to  justify  a  recovery.  On  that  liypothesis  much  more  must  be 
shown. 

If  the  place  where  the  lad  canglit  his  foot  between  the  rail  and 
Uie  plank  was  the  roadway  of  the  company  to  the  exclusion  of  the 
rights  of  the  public,  then  tliere  can  be  no  recovery,  oven  though 
the  way  was  so  unsafe  that  no  citizen  could  walk  along  it  without 
injury  coming  upon  him.  If  the  way  was  the  exclusive  roadway 
of  the  company,  oo  which  the  pablic  liad  no  right  of  paeeage,  then 


^d  by  Google 


TRACK  IN   STREET — IITJURT — NEGLIGEKOB.  436 

the  company  would  not  be  liable  to  one  who  wnlked  along  it,  nn- 
lesa  tiie  injury  inflicted  upon  liiin  was  tlie  result  of  wilful  or  in- 
tentioMiil  misconduct.  Bnc  if  it  was  a  sti-eet  wliicli  tlie  public  Imd 
a  right  to  use,  then,  altliough  it  may  Iiave  been  ^occu pied  by  liie 
track  of  tlie  company,  the  person  who  walks  upon  it  is  not  a  tres- 
passer. It  is  true  that  circutnstaiicea  may  ni;ike  liim  pnilty  of 
contributory  negligence  that  will  defeat  a  recovery,  bnt  the  mere 
fact  that  lie  walks  upon   tlie  higiiway  doen  not  make  him  a  tres- 

Easser,  althougli  the  railroad  company  lias  its  track  laid  in  the 
igliway.  A  trespasser  has  no  right  to  exact  care  from  a  railroad 
company,  but  one  who  is  not  a  trespasser  has  a  riglit  to  exact  a 
reasonable  degree  of  care  if  he  is  not  himself  iu  fault.  It  is  not 
necessarily  inferable  that  because  both  the  railroad  company  and 
the  public  have  rights  in  a  street  or  iiigiiway  that  one  who  enters 
on  the  track  in  the  street  is  a  trespaeeer ;  nor,  indeed,  can  it  be  in- 
ferred from  that  fact  alone  that  he  is  gnilty  of  negligence.  If  the 
way  retained  its  character  as  a  public  one,  it  was  not  a  wrong  on 
the  part  of  tlie  citizen  to  carefully  pass  over  it,  even  thongli  it  be 
conceded  that,  so  far  as  respects  the  running  of  trains,  the  rights 
of  the  company  arc  pai-amount.  Althoueh  tlie  rights  of  the  com- 
pany are  paramount,  still  a  right  of  action  may  exist  in  favor  of 
one  who  is  injured  by  the  negligence  of  the  company's  servants. 
It  may  be  tme  ,and  probably  ie  true,  that  the  railroad  company  has 
the  superior  right.  Riiiiroad  Co.  v.  Butler,  103  Ind.  31 ;  s.  c,  23 
Am.  &  Eiig.  R.  li.  Cas.  262.  It  cannot,  however,  be  inferi-ed 
from  this  that  the  citizen  has  no  right  to  use  tlie  track  for  passage. 
He  does  have  that  right,  but  it  is,  perhaps,  Bubordinate  to  tlie 
right  of  the  company.  The  cases  relied  npon  by  appellant's  coun- 
seT  certainly  do  not  sustain  the  doctrine  that  the  paramount  right 
of  tlie  company  absolves  it  from  duty  to  those  who  walk  along  the 
way  upon  which  its  tracks  are  laid. 

The  first  case  cited  is  Barker  v.  Railroad  Co.,  4  Daly,  274.  AH 
that  is  decided  in  that  case  is  tliat  acartman  is  hound  to  get  off  the 
track  when  he  sees  a  train  approaching,  and  that  the  AnrHonmEB 
ordinary  rules  of  the  road  do  not  apply.  Bnt  it  is  m""""™- 
tacitly  conceded,  if,  indeed,  not  directly  affirmed,  that  where  a 
track  is  laid  in  a  street  the  public  may  still  use  it,  subject  only  to 
the  right  of  the  railroad  company  to  move  its  trains  over  the  track. 
The  pccond  of  the  cases  cited,  and  the  one  chiefly  relied  on.  is 
that  of  Zimmerman  v.  Kiiilroad,  71  Mp.  478;  s.  c,  2  Am.  &  Eng. 
K.  R.  Cas.  191.  In  that  case  it  was  conceded  that  as  to  crossings 
the  rights  of  the  citizen  are  paramount  bnt  that  where  the  track 
is  laid  along  a  street  it  is  otherwise.  We  agree  to  the  doctrine 
that  the  rights  of  the  railroad  are  paramount  so  far  as  the  mrming 
of  trains  is  concerned,  bnt  we  think  that  it  is  also  so  as  to  cross- 
ings, for  citizens  must  concede  the  superior  right  of  passage  to  the 
trains   of   the  company  wherever  the  trains  are  rightfully  run. 


^d  by  Google 


436    LOniSTILLE,    NEW  AI.BANY,    £T0.,   B.    00.   V.  PHILLIPS. 

Bat  the  court  did  not  hold  the  injured  person  to  be  a  wreiig.doer 
becaiiee  lie  andertook  to  walk  on  the  track,  bnt  he  was  held  guilty 
of  contrihutory  negligence  in  careleealy  going  on  the  track  in  front 
of  an  approaciiing  train.  It  is  obvious  that  the  case  we  are  com- 
menting on  does  not  decide  that  tlie  paramount  riglit  of  the  rail- 
road  company  excludes  all  persona  from  ti-avelHng  along  the  street 
occnpied  by  the  track ;  for  what  it  decides  is  that  one  who  does 
travel  along  it  niiiat  not  be  guilty  of  contributory  negligence,  thns 
fully  conceding  that  one  who  doeB  exercise  care  may  rightfully 
travel  along  it. 

The  Ciise  of  Riiilroad  Co.  v.  Hart,  87  111.  529,  is  not  in  point  for 
several  reasons;  but  it  is  enough  to  say  that  the  injured  man 
was  at  the  time  of  his  injury,  as  the  court  declares,  "walking 
laterally  upon  the  track  where  it  was  exclusively  the  private  right 
of  way  of  the  railroad  company," 

The  case  of  Wilbrand  v.  Iwilroad  Co..  3  BoBw,  314,  is  against 
the  appellant,  for  it  wug  tliero  eaid:  "The  public  have  a  right, 
Dndoubtedly,  to  drive  upon  and  across  the  track,  but  not  60  as  to 
interfere  witli  the  proper  business  of  the  compaiiy." 

The  case  of  Railroad  Co.  v.  Jci'sey,  20  N.  J.  Eq.  61,  cannot 
be  regarded  as  in  point  upon  tliis  hmncli  of  the  cnse. 

The  decision  in  Adolph  v.  Park  Co.,  65  N.  Y.  554,  is  very 
strongly  against  the  ap|>ellant;  for  it  was  there  held  tiiat''one 
travelling  upon  a  city  etrcet  has  a  right  to  drive  his  wagon  across 
the  ti-acK  of  a  street  railroad,  and  this  right  is  not  confined  to 
occasions  when  the  other  portions  of  the  street  are  crowded  or 
obstructed.  The  only  limitation  of  the  right  is  that  he  must  not 
unnecessarily  interfere  with  the  passage  of  the  cars;  these  have 
the  preference  in  the  nse  of  the  track." 

Railway  Co.  v.  Bert,  69  111.  38S,  was  a  street  railroad  case,  and 
simply  decides  that  wagons  must  give  way  to  ,the  cars.  Wo  have 
now  exaniiited  all  the  cases  cited  by  connsel  on  this  parlicular 
qoestion,  and  we  have  found  those  that  are  in  point  are  decisively 
hostile  to  the  counsel  who  place  them  before  ns.  It  is,  indeed, 
quite  plain  tliat  the  position  taken  c;iiinot  be  maintained,  for  the 
bare  assertion  that  the  right  is  paramount  necessarily  implies  that 
there  are  other  rights,  although  inferior  ones,  and  if  tiiis  be  true 
it  must  also  be  true  that  one  who  carefully  exercises  the  inferior 
right  is  not  a  wrong-doer  to  whom  the  company  owes  no  duty. 

The  case  of  Snie-lis  v.  Railroad  Co.,  88  N.  t.  IS  ;  s.  c,  8  Am.  & 
Eng.  R.  R.  Cas.  445,  is  directly  in  point.  In  that  case  the  track  was 
laid  along  a  public  street  and  the  plaintiff  was  injured  on  that 
etreet,  but  not  at  a  crossing,  and  the  company  was  held  liable. 
The  court,  in  the  course  of  its  opinion,  said :  "  But  assuming  that 
the  deceased  was  not  attempting  to  cross  at  the  crossing  on  Liberty 
Avenue,  but  was  on  Van  Sindeim  Avenne  when  struck,  it  does  not 
follow  as  a  matter  of  law  that  this  action  cannot  be  maintained. 


^d  by  Google 


TEACK   IN   8TKEET — INJURY — NEGLIGENCE.  437 

Snfficieot  evidence  was  given  on  the  trial  to  ipstify  the  jury  in 
finding  that  this  avenne  was  a  public  street.  Tlie  defendant  did 
not  bIiow,  or  offer  to  bIiow,  that  it  had  any  right  upon  this  Btreet 
except  to  lay  down  a  railroad  track  tlierein,  and  run  cars  tliereon. 
The  intestate,  therefore,  iiad  a  lawfnl  right  to  go  upon  tlie  defend- 
ant's track,  and  if  wliile  there  he  was  killed  by  the  negligent  act  of 
the  defendant,  and  without  any  fault  on  his  part,  tliis  action  can 
be  maintained. 

In  Frick  V.  Railway  Co.,  75  Mo.  599 ;  b.  c.,  8  Am.  &  Eng.  R.  R. 
Oas.  980 ;  10  lb.  780,  the  plaintiff  was  struck  "  midway  between 
Grand  Avenne  and  Theresa  Street,  in  the  city  of  St.  Lonis,"  and 
the  conrC,  ptisliing  the  general  doctrine  much  further  than  we  are 
required  to  do  here,  held  the  defendant  liable.'  There  are  oilier 
cases  in  the  same  court  which  go  still  further,  much  further, 
indeed,  than  we  shonld  be  inclined  to  do.  Harlan  v.  Riiilway  Co., 
«5  Mo.  22;  StillBon  v.  Railroad  Co.,  67  Mo.  671;  Bell  v.  Rail- 
road Co.,  72  Mo.  50 ;  b.  c,  4  Am.  &  Eng.  R.  R.  Cas.  580. 

In  one  of  our  works  on  railroads  it  is  said  :  "  But  although  rail- 
road trains  and  travellers  have  equal  rights  to  public  crossings  and 
streets,  yet,  as  an  ordinary  vehicle  is  more  easily  controlled  than  a 
train  of  care  and  locomotive,  it  behooves  those  travelling  in  ordi- 
nary vehicles  to  check  up  and  wait  for  approaching  trains  to  pass." 
2  Ror.  R.  R.  1049.  It  may  be  that  the  author  is  in  error  in  saying 
that  the  rights  are  eqnal,  bnt,  as  tlie  authorities  show,  lie  is  correct 
in  saying  that  both  have  rightB  in  a  public  street. 

Another  antbor  Bays :  "  Where  a  liighway  is  used  sb  a  part  of  a 
railway  Jine  traveller  have  a  right  to  cross  the  railway  line  at  any 
point,  and  not  merely  at  the  intersection  of  other  highways ;  and 
the  railway  is  liable  to  one  injured  while  creasing  at  a  point  other 
than  the  intersection  of  another  highway,  if  the  railway  was  in  any 
respect  negligent  in  the  operation  of  its  line  ;  and  under  such  cir- 
camstances  the  railway  is  bound  to  observe,  at  every  point  of  ita 
line  on  the  highway,  the  same  precautions  which  it  is  bound  to 
observe  at  any  ordinary  highway  crossing."  Ry,  Accident  Law, 
157. 

Many  of  the  cases  go  mncli  further  than  the  cases  we  have  cited, 
for  they  hold  that  if  the  place  has  been  used  as  a  highway  for  a 
long  period  of  time,  and  this  nee  is  with  the  knowledge  and  per- 
mission of  the  railroad  company,  it  is  its  duty  to  treat  it  as  a  high- 
way, and  to  take  precautions  to  prevent  injury  to  those  who  travel 
over  it.  Barry  v.  Raili-oad,  92  N.  T.  289;  b.  c,  13  Am.  &  Eng. 
R  R.  Cas.  615  ;  Byrne  v.  Railroad  Co.,  6  Am.  &  Eng.  R  R.  Cas. 
617;  Harriman  v.  Railroad  Co.,  12  N.  E.  Rep.  451 ;  Railroad  Co. 
«.  Hedges,  105  Ind.  398;  b.  c,  25  Am.  &  Eng.  R.  R  Caa.  550; 
Railroad  Co.  v.  Snyder,  18  Ohio  St.  399;  Qravee  v.  Thomas,  95 
Ind.  361,  8.  c.,  48  Amer.  Rep..727. 

The  doctrine  of  these  cases  is  in  harmony  with  the  rule  that  haa 


^d  by  Google 


438    LOUISVILLE,    NEW  ALBANY,    STC,    B.    00.    «.    PHILLIPS. 

long  prevailed,  and  has  been  again  and  again  enforced,  and  tliat  is 
that  wlieretlie  railroad  compiin;  licenses  the  pabtic  to  make  a  gen- 
eral nee  of  its  track  it  cannot  treat  a  citizen  wlto  walks  upon  it  as 
a  tteepasser.  Of  the  gi-eat  number  of  cases  aeeerting  tliia  princi- 
ple we  cite  only  a  few,  Davis  ^.  Railway  Co.,  58  Wis.  646;b.c.,  15 
Am.  &  f  ng.  R.  B.  Cas.  424;  Murphy  v.  Railroad  Co.,  38  Iowa,  539; 
Bennett  w.  Railroad  to.,  102  U.  S.  577;  8.  c,  1  Am.  Eng.  R.  R 
Cas.  71 ;  K«y  v.  Railroad  Co.,  65  Pu.St.  269;  Campbell  v.  Boyd, 
88  N.  C  129 ;  a.  c,  43  Amer.  Rep.  740. 

We  (  include  our  discussion  of  this  branch  of  the  case  by  a 
qnotati  .n  fi-om  the  opinion  of  the  court  in  Railway  Co.  v.  Pointer, 
9  Khu.  620.  "If,"  said  the  court,  referring  to  the  plaintiff,  "  he 
should  show  that  the  place  where  theaccidentoccnrrea  wasa  public 
street,  either  in  law  or  in  fact,  he  would  not  be  such  a  trespasser 
as  would  relieve  the  railway  company  from  exercising  reasonable 
and  ordinary  care  and  diligence  towai-d  him.  In  fact,  he  would 
not  be  a  trespasser  at  all.  The  railway  compiitiy  in  such  a  case  la 
bound  to  run  its  trains  with  reference  to  him,  and  to  every  other 
person  who  might  rightfully  be  occupying  the  street.  Such  per- 
sons would  have  the  same  rights  to  be  on  the  street  as  the  railway 
company.  In  fact,  in  this  case  the  legal  right  of  the  railway  com- 
pany and  that  of  the  pulilic  to  use  this  ground  as  a  street  seem  to 
be  about  equal.  The  public  used  this  ground  for  a  street,  however, 
long  before  the  railroad  was  built.  If  the  railroad  company  and 
the  phiinCiff  each  had  a  right  to  use  said  ground,  then  it  was  in- 
cunihent  on  each  alike  to  use  ordinary  care  and  diligence  to  prevent 
and  avoid  injuries." 

The  appellee,  although  not  a  trespasser  in  walking  along  the 
track  laid  in  the  highway,  was  nevertheless  bound  to  exercise  care 
to  protect  himself  from  injury.  He  had  a  right  to  walk  on  the 
track  as  part  of  tiie  highway,  bnt  it  was  his  duty  to  uSe  a  degi'ee 
of  c;ire  proportioned  to  the  situation  and  circumstances,  and  iIijb 
care  extends  to  the  condition  of  the  track  and  to  the  running  of 
the  trains.  AVe  are  not  inclined  to  adopt  the  view  that  the  rights 
of  travellem  and  the  railroad  company  are  equal,  although  they 
are  mutual,  for  we  think  that  as  to  the  right  of  way  for  the  run- 
ning of  trains  tiie  rights  of  the  company  are  pai-amount.  It  is 
therefore  the  duty  of  one  who  walks  upon  a.  track  to  use  reason- 
alile  care  to  discover  and  avoid  danger.  He  has  no  right  to  go 
upon  the  track,  even  though  it  is  in  a  public  highway,  expecting 
tiiat  the  company  will  check  its  trains  to  make  way  for  him;  on 
the  contrary,  lie  must  exercise  vigilance,  and  that  vigilance  mast 
bo  correspondent  to  what  he  is  bound  to  know  is  the  paramount 
right  of  the  railroad  company.  In  this  case  we  think  the  evidence 
sustains  the  finding  of  tlie  iury  that  the  company  was  negligent 
and  the  appellee  w.tb  not.  It  must  not  be  forgotten  that  the  ap 
pellee  was  fastened  to  the  track,  and  could  not  leave  it  to  avoid 


^d  by  Google 


TKACK    IS   STREET — INJFRT — NEGLIGENCE.  439 

the  coming  train  ;  he  was  powerleee  to  avert  the  danger,  even  had 
he  seen  it  in  time  to  liave  left  the  track.  Nor  must  it  be  forgot- 
ten that  it  was  tlirongh  tlte  negligence  of  the  company  that  the 
track  which  travereea  the  etreet  was  made  unsafe.  It  may  be 
even  wliere  the  company  changes  the  face  of  a  highway  for  it» 
own  convenience,  tliat  it  is  not  bound  to  make  it  safer  for  travel- 
lers upon  it  than  its  a9e  for  a  railroad  will  permit.  It  may  be,  too, 
that  one  who  walks  npon  it  is  bound  to  know  that  it  is  a  railroad 
track,  and  is  not  safer  for  nse  for  passage  than  the  object  to  which 
it  is  devoted  will  allow.  Bnt,  granting  all  tliis,  there  may  still  be 
a  recovery ;  for  the  evidence  satisfactorily  sliowa  that  the  appellee 
was  iiBirig  ench  care  as  even  a  pnident  and  careful  person  of  adult 
age  wonld  have  used  in  making  his  way  along  the  track;  that  the 
unsafe  condition  of  the  track  was  doe  to  tiie  negligence  of  tlie 
company,  and  tliat  it  was  also  negligent  in  managing  its  trains. 
Tlie  case  is  an  unnsnally  strong  one,  for  there  was  double  negli^ 
gence  on  the  part  of  the  company. 

Tliere  is  perhaps  a  variance  between  the  allegations  of  the  com- 
plaint as  to  the  precise  character  of  the  defect  in  the  track  and 
the  evidence,  bnt  the  variance  is  not  a  material  one.  Under  our 
-  statute,  a  verdict  cannot  he  set  aside  for  snch  a  variance.  Rev,  Sl 
891-393.  This  is  not  a  case  where  the  plaintiff  declares  on  one 
theory  and  gives  evidence  upon  another,  bo  that  tlio  cases  of  Kail- 
road  Co.  V.  Bills,  104  Iiid.  13;  Mescall  v.  Tnlly,  91  Ind.  96,  and 
eases  of  like  character,  do  not  apply. 

We  have  not  stopped  to  inquire  as  to  the  effect  of  the  appellee's 
tender  age,  for  we  think  he  is  entitled  to  a  recovery  if  bound  by 
tlie  same  rules  as  an  adult  person. 

We  have  disposed  of  all  the  qnestions  that  the  record  properly 
presents,  and  do  not  deem  it  necessary  to  notice  in  detail  the 
phases  in  which  they  aru  presented.     Judgment  affirmed. 

ln]uTy  to  Perton  Walkine  on  Track  Laid  in  Public  Way~Outy  and  Liability 
of  Company.— See  LouisTille,  etc.,  Co.  v.  Yoiestra,  39  Am,  &  Bog.  K.  & 
Cu..  SQT. 


^dbyGooglc 


440    tiKEUOKY  V.    CLEVELAND,    OOLUHBVS,    ETC.,  B.  00. 


Gbeoobt,  Admr., 


OVEWLASD,  COLTJKBDB,  QlNCINNATI  AITD  IhDU»APOLIS  B.  Go. 

{Advanet  Catt,  Indiana.    NotenAer  39,  1SS7.) 

Wbere  a  trespasser  upon  a  raliroad  tr&ck  is  killed  b;  a  Tailmad  train,  the 
compaDy  is  rcBpoDsible  oolj,  if  the  death  was  caused  tvilfull;  or  purposely 
by  its  employees;  and  where  this  does  not  appear,  either  by  the  issues  pre- 
eented  or  the  proof,  the  court  should  direct  a  verdict  for  the  defendant. 

Appeal  from  aoperior  conrt,  Marion  conntj;  D,  W.  Hows,  N. 
B.  Tatlok,  and  L,  C,  Walker,  Judges. 
J.  W.  Gordon.  Ji.  Jf.  Lamb,  and  A.  L.  Mason  for  appellaut. 
Harris  dh  Calkins  for  appellee. 

Mitchell,  C.  J. — Joseph  W.  Gregory,  as  administrator  of  the 
estate  of  Ida  M.  Sennett,  deceased,  brouglit  tliis  action  agaiiiEt  t)ie 
Clevelaad,  Columbus,  Cincinnati  &  Indianapolis  E.  Co.,  to  recover 
riuTH.  damages  for  wrongfully  causing  the  death  of  liis  intes- 

tate. The  first  paragraph  of  the  complaint  charges,  in  substance, 
that  the  railway  company,  on  the  ISth  day  of  February,  1882, 
within  the  city  of  Indianapolis,  "  did  so  manage,  control,  and 
operate  her  said  trains,  reokleSEly,  with  gross  negligence,  without 
regard  to  consegnences,  and  with  fatal  and  inexcusable  heedlese- 
DCBB,  as  to  run  one  of  her  said  trains  upon  plaintiffs  decedent  with  ' 

freat  force,"  whereby  the  said  decedent  was  killed  without  any 
salt  on  her  part.  The  second  paragraph  charges  tlint  the  railway 
company,  on  the  date  mentioned,  operated  it£  trains  "  with  sucit 
gross  negligence,  recklessness,  and  inexcusable  disregard  of  con- 
sequences, and  wilful  misconduct,  as  to  negligently,  wantonly,  and 
wilfally  canse  or  allow  the  tender  attached  to  one  of  its  trains  to 
strike  the  person  of  said  decedent  with  great  force  and  fatal  vio- 
lence;" thereby  causing  her  death.  The  second  pai-agrauh  con- 
tained no  averment  that  the  decedent  was  witliout  fault.  In 
neither  of  the  foregoing  paragraphs  is  it  charged  that  the  decedent 
was  «ither  purposeTy,  intentionally,  or  wlifnlly  run  upon  and  killed 
—^^  or  injured  by  the  railway  company,  or  its  servants,  nor 

j^S^o  t-ySi  does  either  of  them  state  facts  from  which  such  an  in- 
ference can  be  drawn.  It  is  only  necessary  to  charge, 
in  a  complaint  which  seeks  redress  for  a  wilful  injnry,  that  the  m- 
inrions  act  was  purposely  and  intentionally  committed  ;  with  the 
Intent  wilfully  and  purposely  to  inflict  the  injury  complained  of. 


^d  by  Google 


TBESPASSEB   ON   TRACK — NEGLIGENCE.  441 

As  a  rule  of  evidence,  the  prestimption  that  every  person  intends 
the  natural  and  probable  coiiseqneDces  of  Iiib  wroiigfnl  or  nnlawfnl 
acts  appiiee' as  well  in  civil  ae  in  criminal  cases.  Hence  the  tin- 
lawful  intent  may  be  shown  by  direct  evidence,  or  it  may  be  in- 
ferred from  conduct  which  ehowa  a  reckless  disregard  of  con- 
seqnenceB,  and  a  williiigneBS  to  inflict  injury,  by  purpoeely  and 
volantarily  doing  an  act  with  knowledge  that  some  one  is  uncon- 
Bcionsly  or  unavoidably  in  a  eitnation  to  be  injared  thereby.  An 
act  which  in  itself  might  be  lawful  becomes  nnlawfnl  when  done 
in  a  manner  or  under  circumstances  whicit  charges  tlie  actor  with 
knowledge  that  it  will  result  in  injuring  eo-ne  one.  Palmer  v. 
Railroad,  ante,  p.  364;  Riilway  Co.  v.  Ader,  110  Ind.  376; 
Railway  Co.  v.  Bryan,  107  Ind.  61 ;  Railroad  Co.  v.  Mann,  107 
Ind.  89;  Pennsylvania  Co.  v.  Smith,  98  Ind.  42. 

As  was  in  effect  eaid  in  Railway  Co.  V.  Bryan,  sz^pra,  there  is  a 
clear  distinction  between  cases  which  count  upon  negligence  as  a 
ground  for  action  and  those  which  are  fonnded  upon  saxe-pixuh 
acts  of  aggressive  wrong  of  wilfulness  ;  and  a  pleading  °™- 
elionid  not  be  tolerated  whicJi  proceeds  upon  the  idea  tliat  it  may 
be  good  either  for  a  wilful  injury,  or  as  a  complaint  for  an  injury 
occasioned  by  negligence.  It  should  proceed  upon  one  tlieory  or 
the  other,  and  is  to  be  judged  fi-om  its  general  tenor  aad  scope. 
Railway  Co.  v.  Schmidt,  106  Ind.  73;  Mescall  v.  Tnliy,  91  Ind. 
96;  Flatter  v.  City  of  Seymour,  86  Iiid.  323. 

That  the  complaint  under  considei-ation  abounds  in  vitnperative 
«pithete,  and  that  some  detached  phrases,  alleging  wilfnl  miacon- 
duct,  are  thrown  in,  does  not  snpply  tlie  necessary  averments  that 
the  injury  was  purposely  or  intentionally  inflicted.  "  The  aver- 
ments as  to  the  manner  and  cause  of  the  injury  are  specific,  and 
they  do  not  sustain  the  conclusions  embodied  in  the  epithets,  but 
clearly  indicate  that  there  was  no  wilful  or  intentional  wrong." 
Railway  Co.  v.  Schmidt,  supra.  At  the  conclusion  of  the  evi- 
dence,  after  hearing  the  argument  of  counsel,  the  learned  judge 
before  whom  the  case  was  tried  directed  the  jury  to  return  a  ver- 
dict for  the  defendant.  A  verdict  was  returned  accordingly.  The 
right  of  the  court  to  direct  a  verdict  for  the  defendant,  in  case  the 

I)laintiff's  evidence,  giving  it  the  most  favorable  construction  it  will 
egitimately  hear,  fails  to  establish  any  fact  which  constitutes  an 
essential  element  in  his  right  of  action,  is  clear.  Purcell  v.  Eng- 
lish, 86  Ind.  S4,  and  cases  cited ;  Hall  v.  Durham,  109  Ind.  4S4 ; 
Thornt.  Juries,  §  379. 

The  rule  which  governs  in  such  cases  is  substantially  that  which 
controls  where  there  is  a  demurrer  to  the  evidence.     If  the  plain, 
tiff's  evidence,  with  all  the  legitimate  inferences  which  wnmmiwu. 
a  jury  might  reasonably  di'aw  from  it,  is  insufficient  to  'cbt- 
enstam  a  verdict  in  his  favor,  so  that  a  verdict  for  the  plaintiff,  if 
one  should  be  returned,  would  be  set  aside,  the  court  may  properly 


^d  by  Google 


442      GKEGORY   V.    CLEVELAND,   COLDMBUS,   ETC.,    B.    CO. 

direct  a  verdict  for  tlie  defendant,  without  submitting  the  evidence 
to  the  jury.  Scliofield  v.  Railway  Co.,  114  U.  S.  615;  8.  c,  19 
Am.  &  Eiig.  E.  R  CaB.  363;  Weia  v.  City  of  Madison,  76  Ind. 
241 ;  MeClareii  v.  Railroad  Co.,  83  Ind.  319.  It  ie  for  tlie  conrt 
to  Bay  whetlier,  upon  the  evidence  most  favorable  to  the  pkiiitifE, 
an  iiifemiice  of  liability  can  renfonably  be  drawn.  It  is  for  the 
jury  to  Bay,  upon  all  the  evidence  eabmitted  to  them,  nnder  proper 
nmtrnctions  fioin  the  court,  whether  liability  ought  to  be  inferred. 
If  the  eBtablished  facts  are  such  that  no  inference  of  liability  can 
be  drawn,  the  case  ouc;lit  not  to  be  anhmitted  to  the  jury.  Rail- 
way Co.  V.  Jackson,  3  App,  Cus.  193  ;  Randall  v.  Railway,  109  U. 
S.  478 ;  a.  c,  15  Am.  &  Eng.  R.  R.  Cue.  243. 

It  is  practically  conceded  by  appellant's  couneel  that  the  only 
question  for  discussion  npon  the  evidence  ia  whether  or  not  the 
injnrj  was  wilfully  or  purposely  committed.  The  argnment  is 
directed  to  that  question  exciueively.  Bnt,  as  has  already  beea 
eeen,  the  complaint  presented  no  issne  of  a  wilful  injury.  It  i» 
therefore  wliolly  immaterial  to  consider  the  evidence  in  the  aspect 
in  which  it  is  discussed.  We  agree  that  wilfulness  may  be  shown, 
either  by  direct  or  indirect  evidence,  and  timt  the  unlawful  intent 
maybe  either  actual  or  constructive;  bnt,  even  if  the  fact  of 
wilfulness  were  in  issue  in  this  case,  we  can  discover  no  evidence 
that  there  was  either  an  actual  or  constructive  intent  to  commit 
injury  to  any  person  at  the  time  of  the  unfortunate  occurrence 
which  gave  rise  to  this  suit. 

The  decedent,  with  two  other  ladies,  was  walking  along  the  rail- 
way track  at  a  place  where  the  public  had  no  right  to  use  the 
company's  right  of  waj',  and  without  any  invitation  or  license  to 
do  so.  Slio  and  her  companions  chose  the  right  of  way  rather  than 
the  BtreeL,  hecanse  of  the  muddy  condition  of  the  street,  and  the 
better  facilities  for  foot-travel  afforded  by  the  railway  track.  Tliey 
were  npon  the  ti-ack  at  a  place  where  trains  of  care  were  almost 
constantly  passing,  and  where  it  was  highly  dangerous  to  be.  If 
they  were  seen  on  the  track  by  the  engine-driver  on  the  approach- 
ing train,  he  had  the  right  to  assume  that  they  would  leave  the 
track  in  time  to  avoid  being  injured,  and  he  was  not  bound,  in  the 
absence  of  anything  to  indicate  to  him  that  they  would  not  do  so, 
to  stop  his  train.  This  has  been  so  often  and  so  recently  decided 
by  .this  court  that  we  would  not  be  justified  in  elaborating  the  rea- 
sons or  citing  authorities  to  sustain  the  proposition.  Palmer  u. 
Railroad,  supra;  Railway  Co.  v.  jtong,  ante,  ji.  138;  Patterson, 
Ky.  Accident  Law,  §§  199,  200,  205. 

It  follows  that  the  decedent  was,  at  the  time  of  the  injury  which 
occasioned  her  death,  a  tiespasser  upon  the  I'ailway  company's 
truck;  and  it  not  appearing,  either  by  the  JBSueB  presented  or  by 
the  evidence  given,  tiiat  the  injury  was  wilfully  or  purposely  in- 
flicted, the  direction  by  the  court  tnat  there  should  be  a  finding 


^d  by  Google 


TKE8PASSEB  ON   TEACE — COHTBIBUTORT  NEGLIGENCE.    445 

for  the  defendant  wae  clearl;  right.  Jodgmeot  affirmed,  witit 
eoets. 

Railroad  Company  only  LlabU  for  Wilfully  or  Purpoiely  Injuring  or  Kill- 
ing Tr«tpa*Mr(  on  Track* — Terra  Haute,  etc.,  R.  Co,  v,  Grabuu,  12  Am.  Ss 
EDg.  R.  R.  Cm.  77. 

General  Liability  to  Trespaesert. — See  Palmer  e.  Chicago,  etc,  B.  Co., 
and  note,  lupra,  p.  864. 


HoBiLB  ASD  Ohio  B.  Oo. 


(«4  Mitriuippi,  784.) 

A  declaration  by  a  widow  u^ainst  a  railroad  company  to  recover  damages 
for  the  death  of  her  husband,  which  stated  that  the  huiband  got  on  de- 
fendaat's  track  aixtj  feel  in  front  of  a  train  approachine  at  the  rate  of  fifteen 
to  thirty  miles  ao  hour,  but  waa  not  obeerred  by  him,  though  there  was 
nothing  to  obstruct  the  view  thereof,  and  proceeded  to  walk  io  the  middle 
of  the  track  in  front  of  such  train  on  his  way  home  and  was  overtHkeo  and 
killed  by  it,  and  that  the  engineer  might  and  ought  to  hare  Been  him  but 
did  not,  states  no  cause  of  action,  and  a  demurrer  thereto  ought  to  be  sus- 
tained. 

Where  one  going  to  his  home  is  traTelling  upon  a  railroad  track,  and  in 
order  to  aroid.danger  from  an  approaching  train  thereon  gets  on  to  a  paral- 
lel track  of  another  railroad  company  sixty  feet  in  front  of  an  engine  ap- 
proaching at  the  rate  of  fifteen  to  thirty  miles  per  ho'tr  and  in  an  unobstructed 
view,  and  then  proceeds  to  walk  up  the  latter  track  until  he  is  overtaken 
and  killed  by  the  engine  thereon,  is  guilty  of  contributory  negligence, 
notwithstanding  the  fac[  that  he  was  partially  deaf  and  did  not  observe  such 
engine;  and  his  widow  cannot  recover  damnges  for  his  death,  even  though 
it  be  shown  that  the  engine  (in  violation  of  |  1047,  Code  of  1880)  was  run- 
ning at  a  greater  rate  of  speed  than  six  miles  an  hour  in  an  incorporated  city 
without  sounding  any  alarm,  and  that  neither  engineer  nor  brakeman  was 
on  the  lookout,  but  engaged  in  other  duties  on  the  engine. 

Section  1047,  Code  of  1880,  which  provides  that  any  railroad  company, 
"shall  be  liable  for  any  damages  or  injury  which  may  be  sustained  by  any- 
one from  its  locomotive  or  cars  while  they  are  running  st  a  greater  speed 
than  six  miles  an  hour  through  any  city,  town,  or  villsge,"  does  not 
impose  absolute  liability  upon  a  railroad  company  for  an  irjury  to  an  indi- 
vidual done  by  it  while  violating  this  erstute;  but  if  such  injury  could  have 
been  avoided  by  the  exercise  of  ordinary  care  on  the  part  of  such  individual, 
the  railroad  company  is  not  liable  in  damages  therefor,  V.  &  M.  R,  Co.  e. 
UcQowan,  63  Miu.  683,  affirmed. 

The  employees  in  charge  of  a  railroad  train  are  not  bound  to  stop  it  every 
tjqie  they  see  a  person  on  the  track.  They  may  not  wantonly  injure  or  kill, 
bnt  thsy  may  assume  that  a  man  seen  on  the  track,  at  a  place  where  there  is 
no  difflcnlty  in  his  leaving  it,  will  exercise  the  common  instinct  of  self-pres* 

'an  and  get  oS  the  track  before  he  is  reached  by  the  train.     If  they  see 

n  the  track  at  a  place  where,  or  under  such  circumstances  that,  he  cma- 


^d  by  Google 


444  MOBILE  AND   OHIO   R.    00.   V.    BTBOUD. 

sot  iMdily  leave  it  in  time  to  avoid  injury,  or  if  they  discover  that  for  any 
<»ose  be  ia  nnawue  of  hie  peril,  then  they  are  bound  to  atop  the  train  if  it 
-can  be  done;  but  a  railroad  company  is  not  responsible  for  injury  resulting 
to  a  person  on  account  of  their  employees  not  seeing  him  when  be  is  in  a 
place  where  he  has  no  right  tz>  be. 

Appeal  from  the  circuit  conrt  of  Landerdale  county.  Hon.  8. 
H.  Terral,  jndge. 

Mrs.  Elvira  Slroud  bronght  this  action  against  the  Mobile  and 
Ohio  K.  Co.  to  recover  damages  for  the  killing  of  her  htieband 
by  the  train  of  the  defendant. 

She  alleged  in  her  declaration  that  in  October,  1884,  her  hus- 
band, Geor^  Stroud,  on  his  way  from  the  city  of  Meridian  to  hia 
home  in  the  country,  being  east  from  the  depot  of  said  company, 
-and  travelling  in  the  route  usually  tnivelled  by  him  between  his 
home  and  Baid  city,  while  crossing  the  track  of  the  Alabama 
Great  Southern  R.  Co.,  which  track  ran  parallel  to  defendant's 
track,  and  while  upon  the  track  of  the  Alabama  Great  Soucliem 
R.  Co.,  he  preceived  a,  train  approaeliiiig  on  the  Alabama 
-  Great  Southern  track,  and  in  order  to  avoid* the  danger  tliere- 
from  he  crossed  over  to  defendant's  track,  at  which  time  a  switch 
engine  of  defendant's  was  about  sixty  feet  from  him,  but  was  not 
observed  by  him  ;  that  no  notice  of  the  approach  of  this  engine  was 
given  either  by  ringing  the  bell  or  blowing  the  whistle;  tliat  thia 
■was  in  the  corporate  limits  of  the  city  of  Meridian,  and  the  engine 
was  running  at  a  greater  rate  of  speed  than  six  miles  an  hour;  "and 
/fihe  avers  that  the  engineer  in  charge  of  said  engine^  who  was  the 
agent  and  servant  of  defendant,  did  or  might  have  observed  him, 
the  said  Geoi'ge  Stroud,  and  by  the  use  of  ordinary  care  and  dili- 
gence might  have  prevented  any  barm  or  injury  being  done  him  at 
the  time  by  said  engine  ;  bnt,  plaintiff  avers  that  by  reason  of  the 
wrongful  and  negligent  act  of  the  said  defendant  in  failing  to  ring 
the  bell  and  blow  the  whistle  attached  to  said  engine,  and  in  fail- 
ing to  stop  said  engine,  the  said  engine  ran  over  the  said  George 
'Strond,  from  the  effect  of  whidi  wrongful  and  negligent  act  toe 
■said  George  Strond  died." 

To  this  declaration  the  defendant  demurred,  and  the  demtirrer 
was  overruled. 

On  the  trfal  the  evidence  for  plaintiff  tended  to  show  that 
Oeorge  Strond  was  a  man  abont  eixty-five  years  old  and  deaf  m 
one  ear;  that  on  the  day  in  question  he  was  going  home  from  the 
city  of  Meridian,  and  was  walking  np  the  ti-ack  of  the  Alabama 
Great  Southern  R.,  some  three  hundred  and  fifty  yards  from 
the  Union  depot,  when  he  saw  a  train  approaching  tnereon,  and  in 
order  to  avoid  it  he  crossed  over  and  on  todefendant's  track,  which 
ran  near  to  and  parallel  with  the  Alabama  Great  Southern  track, 
and  proceeded  to  walk  in  the  middle  theieof ;  that  when  Strond 
got  on  defendant's  track  a  switch  engine  was   between  pixty  and 


^d  by  Google 


TEESPASSEK  ON  TRACK— OuMTEIBUTOBT  WEGLIGEHOE.   445- 

ninety  feet  in  liia  rear,  and  was  mnning  at  from  fifteen  to  thirty 
mileB  per  honr,  tliis  being  in  tlie  corporate  limits  of  Meridian  ;  that 
Strond,  continnin^  to  walk  in  the  middle  of  the  track,  was  over- 
taken by  tlie  engine,  run  over,  and  killed  by  it ;  that  one  Hattie 
Green,  seeing  the  danger  of  Strond,  tried  to  give  the  engineer 
warning,  btit  that  he  was  not  on  his  seat  and  web  looking  to  one  eide- 
and  oat  of  his  engine,  and  that  the  brakeman  was  shovehng  coal 
into  the  engit)e,  so  that  they  did  not  observe  her ;  that  the  engi- 
neer, when  within  eight  feet  of  Stroud,  put  on  brakes  and  reversed 
his  engine,  but  not  in  time  to  prevent  the  injury ;  tliat  the  track 
was  straight  and  there  was  nothing  to  obetruct  the  engineer's  view 
np  to  the  point  where  Stroud  was  killed. 

Theevidence  for  tlie  defendant  tended  to  show  that  the  engineer 
saw  Stroud  wlien  he  got  ofE  the  Alabama  Great  Sonthera  track, 
bat  did  not  see  him  any  mora  until  he  was  killed ;  that  the  en- 
gineer was  enMged  in  oiling  certain  machinery  on  the  inside  of 
nis  cab,  and  the  brakeman  was  putting  coal  into  the  engine.  The 
'  jnry  found  for  the  plaintiff  and  assessed  her  damagee  at  twenty- 
two  handred  dollar's,  and  the  court  gave  judgment  to  that  effect. 
The  defendant  appealed. 

Fewdly  Walking  c6  Brahan  for  appellant. 

Woods,  Molntosh  <&  Williams  for  the  appellee. 

Abnold,  J. — We  consider  the  declaration  to  mean  that  the  en- 
gineer in  charge  of  the  train  did  not  see  the  deceased  in  time  to 
stop  the  train  before  he  was  struck,  but  that  he  might,  _^^^ 
or  oaght  to  have  seen  him.     In  this  view  tlie  declara-  wniir.  -  v™- 
tion'was  demurrable.      It  stated  no  cause  of  action. 
The  demurrer  to  it  should  have  been  sustained. 

The  evidence  shows  less  caase  for  the  complaint  than  the  declara- 
tion. The  verdict  is  contrary  to  law  and  the  evidence,  and  should 
have  been  set  aside. 

A  man  who  voluntarily  gets  on  a  railroad  track,  sixty  feet  in 
front  of  a  train  moving  towai-d  him  at  a  greater  rate  of  speed  than 
six  miles  an  hour,  at  a  poiut  where  there  is  notiung  to 
obstruct  the  view  or  prevent  him  from  seeing  the  train  kmijoknok  or 
or  leaving  the  track  after  he  is  on  it,  mnet  take  the 
consequences  of  his  own  negligence  and  foliy.  If  injured  by  the 
train,  under  such  circumstances,  ho  is  not  more  sinned  against  than 
sinning.  He  does  not  exerciee  reasonable  or  ordinary  care.  He 
cannot  speculate  or  experiment  in  such  manner,  with  safety,  on 
the  chances  of  others  being  more  prudent  tlian  himself,  or  of  others 
taking  better  care  of  him  than  he  does  himself.  The  negligence 
of  the  railroad  company,  in  rnnning  its  train  at  an  unlawful  rate  of 
speed,  was  no  excnse  for  the  negligence  of  the  deceased. 

It  was  decided  in  T.  &  M.  R.  Co.  v.  McQowan,  62  Miss.  682, 
that  §  1047  of  the  code,  whicii  pi-ohibit«  locomotives  and  cars  from. 


^d  by  Google 


446  MOBILE  AND   OHIO   R.   CO.  U.   STROUD. 

beinff  rnn  tliroiigli  towns,  cities,  and  rilla^s,  at  a  greater  rate  of 
«peea  t}i;m  six  miles  an  hour,  does  not  impuBO  absolute  liability  on 
A  niilroitd  company  for  all  injury  done  while  the  stutute  is  being 
violrtted,  without  regai-d  to  the  condnct  of  the  perBon  injured,  or 
the  ei re II instances  under  which  the  iujcirj  occurred,  and  tLat  even 
where  a  niili-oad  company  violates  the  stutute,  one  who  could  by 
the  exercise  of  ordinary  care  avoid  injury  by  tlie  act  of  the  com- 
pany, cannot  recover  for  eucli  injury. 

Accordiii!;  to  the  declaration  and  the  proof,  the  deceased  was 
traveliiijir  on  the  railroad  track,  not  for  any  business  connected 
'witit  the  railroad,  but  for  liis  own  convenience.  He  was  not  in 
the  exercise  of  a  legal  right.  He  was  where  he  had  no  right  to  be. 
Kailroad  tracks  are  not  conimou  highways  upon  which  the  public 
mny  wiilk  or  travel,  without  incurring  the  perils  of  an  extremely 
dangerous  position.  Those  who  use  Uieni  for  such  purpose  mast 
■do  something  to  pi'otect  themselves  from  injury  by  moving  trains, 
before  tliey  can  justly  complain  of  others.  They  must  see,  and 
hear,  and  get  off  tlie  track,  and  out  of  tlie  way  of  passing  trains,  if 
there  is  nothing  to  prevent  theni  from  doing  so.  Physical  infirm- 
«UK~Dun<^  iiies,  of  themselves,  do  not  relieve  one  from  observing 
noiicoBt  j]|g  rules  of  ordinary  care  for  his  own  safety.  The 
"weakness  or  imperfection  of  one  faculty  will  not  excuse  a  failure 
to  U8i»  the  other.  Deafness  will  not  operate  to  palliate  a  failure  to 
use  the  sense  of  siglit.  When  one  is  conscious  that  liis  hearing  is 
defective,  instead  of  exereising  less,  he  should,  rather,  exercise 
greater  care  in  other  respects.  What  is  lacking  in  the  sense  of 
hearing,  must,  if  possible,  be  made  up  by  increased  vigilance  in 
looking  out  for  danger  with  the  eye.  Beach  on  Contributory 
Negligence,  §  147.  Infallibility  is  not  required  by  law  of  i-ailroad 
companies  in  the  condnct  of  their  buBiricss.  The  employees  id 
-charge  of  a  railroad  train  arc  not  bound  to  stop  it  every  time  they 
flee  a  pei'son  on  the  track.  They  may  not  wantonly  injure  or  kill, 
but  they  may  assume  that  a  man  seen  on  the  track,  at  a  place  where 
there  is  no  difficulty  in  his  leaving  it,  will  exercise  the  common 
instinct  of  self-preservation  and  get  off  the  track  before  he  is 
reached  by  the  triiin.  If  they  see  him  on  tlie  track  at  a  place,  or 
under  such  circurastinees,  that  lie  catmot  readily  leave  it  in  time 
to  avoid  injury,  or  if  they  discoverthat  fur  any  cause  ho  is  unaware 
of  his  peril,  then  they  are  bound  to  stop  the  train,  if  it  ciiii  be 
done;  but  a  railroad  company  is  not  responsible  for  injuries  re- 
enlting  to  a  pei'son  on  account  of  their  employees  not  seeing  him 
when  lie  is  in  a  place  where  he  has  no  right  to  be. 

In  Riiilroad  Company  v.  Houston,  95  IT.  S.  697,  where  the  suit 
was  brought  to  recover  damages  for  the  death  of  a  woman  stnick 
RuuoADco.*.  by  a  train  of  the  company  while  she  was  walking  on 
uJST"  "*"■  the  railroad  track  in  a  village,  the  Supreme  Court  of 
the   United    States  said:     "If  the  positions  most  advantageoas 


^d  by  Google 


TllKsPASSER  OX  TRACK — CONTKIBUToRY  KKGLIGKNCE.      447 

for  the  ]>l;iiiitiff  be  assnined  as  con-ect,  that  tiie  train  was  luii- 
Diiig  Jit  an  nnnsual  rnte  of  epeed,  its  bell  not  rniig,  and  its 
wliietle  lYot  soanded,  it  is  slili  diflieiilt  to  see  on  what  ground  the 
tccident  can  be  atti-ibnted  solely  to  the  negligence,  miskil fulness, 
or  criminal  intent  of  the  defcndaot's  engineer.  Had  the  train  been 
running  at  an  ordinary  rate  of  speed,  it,  would  have  been  impossi- 
ble for  him  to  stop  the  engine  when  within  fonr  feet  of  the  de- 
ceased. And  she  was  at  the  time  on  the  priviito  right  of  way  uf 
the  company,  where  she  had  no  riglit  to  be.  But,  aside  from  this 
fact,  the  fiiilut'e  of  the,  engineer  to  sound  tiie  wliistlc  or  ring  the 
bell,  if  such  were  the  fact,  did  not  relieve  the  deceased  from  the 
necessity  of  taking  ordinary  precautions  for  her  safety.  Negli- 
gence of  the  company's  employees  in  these  particulai's,wu6  no  excuse 
for  negligence  on  her  part  She  was  bound  to  listen  or  to  look, 
before  attempting  to  cross  the  railroad  track,  in  order  to  avoid  an 
approaching  train,  and  not  to  walk  carelessly  into  the  place  of  pos- 
sible danger.  Had  she  used  her  senses,  she  could  not  have  failed 
both  to  near  and  to  see  the  train  which  was  coming.  If  she 
omitted  to  nse  them,  and  walked  tlioughtlessly  upon  the  track,  she 
was  guilty  of  calpable  negligence,  ana  so  far  contributed  to  her 
injuries  as  to  deprive  her  of  any  right  to  complain  of  others.  If, 
using  them,  she  saw  the  train  coinnig,  and  yet  undertook  to  cross 
the  track,  instead  of  waiting  for  the  train  to  pass,  and  was  iiijured, 
the  consequences  of  her  mistake  and  temerity  cunnot  be  cast  upon 
the  defendant.  No  railroad  company  can  he  held  for  a  failure  of 
experiments  of  that  kind.  If  one  chooses,  in  anch  position,  to  take 
risks,  lie  must  bear  the  possible  consequences  of  failure.  Not  even 
a  plausible  pretext  for  the  verdict  can  he  suggested,  unless  we 
wander  from  the  evidence  into  tiie  regions  of  conjecture  and  speo- 
nlation.  Under  tliese  circumstances,  the  court  would  not  have 
erred  had  it  instructed  tlte  jury  to  render  a  verdict  for  the  de- 
fendant." 

The  doctrine  of  this  case  is  supported  by  many  authorities,  bnt 
whether  supported  or  not,  it  is  sound,  and  conservative  of  justice 
and  of  hnmaii  life,  and  must  control  the  cause  under  consideration. 

The  judgment  is  reversed,  the  demurrer  to  the  declaration  sus- 
tained, and  the  canse  dismissed. 

Violation*  of  Statutory  Dutiei  a*  AffectlnE  Company't  Liability.- The 
priaciptil  case  decermmes  a  point  of  great  iatereac  &nd  one  in  which  there 
IB  room  for  much  diSerence  of  opiaioD,  Where  a  municipKl  ordioance  reg- 
ulates the  rate  of  ipeed  of  trains  within  corporate  limitB  and  a  trespasser 
is  injured  while  thJB  ordinance  is  being  violatea,  what  are  the  relative  rights 
of  the  parties  )  Does  the  ordinance  impose  an  absolute  liability  irrespective 
of  questions  of  contributor;  negligence  t  If  there  is  oegligence  on  both 
sides  what  effect  shall  be  given  to  tiie  ordinaoce  t 

A  review  of  the  authorities  will  show  that  many  of  them  may  Im  distin- 
gniahed.  Although  decided  upon  similar  or  anal^ous  facts  the;  indicate 
many  reasons  for  conflict. 


^d  by  Google 


448.  MOBILE    AND   OHIO    K.     00.    V.    8TROUD. 

In  Couch  e.  Steel,  8  E.  ft  B.  403,  a  ship  owner  having  neglected  a  sUta- 
tor;  dut;  of  keeping  on  board  hia  eb)p  a  proper  Buppl;  of  medicines, 
it  was  beld  that  a  sailor,  whose  hu&lth  had  been  injured  for  wAit 
of  such  medicines,  coulil  maiotaia  his  actioa.  The  opinions  in  this  .case 
are  referred  to  in  the  comments  of  Hiitthews,  J.  in  Hsjes  v.  Michigan 
Central  R.  Co.,  Ill  U.  S.  338;  s.  c,  13  Am.  &  Eng.  R.  R.  Cas.  SU.  In 
Williams  v.  Qrest  Western  R.,  L.  R.  9  Ejch.  157,  where  the  defendant's  line 
crossed  a  public  footpath,  on  the  level,  and  the  defendant  had  fitiled  to  per- 
form its  etatutor;  dut;  of  erecting  gates,  and  the  plaintiff  va%  found  upon, 
the  crossing  with  his  foot  severed,  the  defendant's  non-fultinraent  of  its  stat- 
utor;  obligalion  was  held  to  be  sufficient  evidence  of  negligence  to  justif;  a 
verdict  for  the  plaintiff.  In  Blsmins  v.  L.  A  Y.  RCo.,  L.  R.  8  Exch.  28S,  it 
was  held  that  noa-compliance  with  a  statutor;  requirement  of  maintain- 
ing  means  of  communication  between  passengers  and  guards  is,  where  in- 
jur; has  resulted  to  a  passenger  from  the  want  of  such  means  of  communica- 
tion,  evidence  of  negligence.  In  Staple;  e.  L.  B.  &  S.  C.  R.  Co.,  L.  R.  1 
Exch.  al,  the  same  rule  was  applied  where  the  defendant  bad  neglected  ita 
statutory  dut;  of  maintaining  a  serrant  in  charge  of  the  gates  across  a  pub- 
lic ca fringe- way.  See,  alio,  Brittoa  e.  G.  W.  Cotton  Co.,  L.  R.  7  Eich. 
130;  Nilro-Phosnhttte  Co.  e.  L.  8.  &  8t.  R.  Co.,  L.  R.  9  Ch.  Div.  503;  Stat. 
Westra.  a,  13  Edw.  1  G.  BO.  Compara  Atkinson  e.  N.  &  G.  Water  Works 
Co.,  L.  R.  6  Exch.  404,  2  Ei.  D.  441.  Mr.  Patterson,  in  his  Ruilway  Acci- 
dent Law,  p.  40,  deduces  the  following  rule:  "Where  the  railway  fails  to 
perform  a  dut;  imposed  b;  a  statute;  the  railway  is,  b;  reason  of  such  fail- 
ure, liable  for  an;  injuries  direct!;  resulting  therefrom,  if  the  statute  vesta 
in  the  person  injured  a  right  oF  action  for  such  n  on -performance  of  duty; 
but  where  the  injuries  do  not  directly  result  from  such  non-performance  of 
dut;,  or  where  the  statute  does  not,  in  terms,  vest  in  the  person  injured  a 
right  of  actioa,  the  railwa;  ia  not  to  be  held  liable  solely  by  reason  of  such 
no  n -perform  an  ce. " 
J  The  case  of  Gorris  B.  Scott,  L.  B.  9  Eich.  125,  was  an  action  to  recover 
from  a  ship  owner  for  sheep  washed  overboard  on  a  sea  voyage  by  reason  of 
the  negligence  of  the  defendant  to  comply  with  certain  orders  of  the  priyy 
council,  made  pursuant  to  pnrliamentary  authority,  respecting  the  manner  of 
disposing  of  domestic  animals  on  shipboard,  the  object  of  such  requirements 
being  to  prevent  unnecessary  suffering  to  the  animals,  and  to  prevent  the 
communicating  of  diseases  among  them.  The  injury  complained  of  being 
deemed  by  the  court  foreign  to  the  object  of  the  legislative  orders  referred 
to.  a  recovery  was  denied.  Bee,  also.  Hall  «.  Brown,  64  N.  H.  4*6; 
Metallic  Compression  Casting  Co.  e.  Pittsburgh  R.  Co.,  108  Mass.  277, 

Municipal  Ordinances  Regulating  Speed  of  Trains,  PenceS)  Gates,  ete. — 
Where  municipal  ordinances  are  involved  it  seems  clear  that  the  same  prin- 
ciples of  construction  are  applicable  as  in  the  case  of  statutes.  Many  inter* 
esting  cases  have  arisen,  and  it  seems  impossible  to  state,  as  a  result  of  the 
decisions,  a  rule  which  could  stand  the  test  of  careful  scrutiny.  Perhaps,  aa 
was  said  in  construing  a  statute,  the  liability  to  a  private  action  for  neglect 
of  a  statutory  duty  depends  "  on  the  purview  of  the  legislature  in  the  par- 
ticular statute  and  the  language  which  they  have  employed."  Atkinson  b, 
N.4G.  Waterworks  Co.,  L.  R.  6  Exch.  404;  3  Eich.  D.  441.  If  thU  is 
the  correct  rule  of  construction,  what  is  the  purpose  of  such   ordinance} 


They  are  clearly  police  regulations  passed  for  the  greater  security  of  thickly- 
populated  communities;  they  usually  provide  some  penalty  for  their  viola- 
tion, but  unless  such  penalty  is  expressed  in  the  brnadest  langunge  it  is 
scarcely  adequate  for  the  damage  usually  resulting,  and  the  ordinance  itself 
affords  an  insecure  foundation  for  a  private  action.     On  the  other  hand,  it 


^d  by  Google 


TRE3PAS.SEK  ON   TRACK — OONTEIBUTOEY  KEGLIQKNCE.    449 

inTolves  s  Btraiued  conBtructiou  to  allege  thnt  such  an  ordinance  is  a  cloak 
to  trespassers  and  }>erBons  at  crosfiogs,  protectine  them  from  the  natural 
consequences  of  their  own  negligence.  The  weight  of  antboritj  seems  to 
maintain,  therefore,  that  in  such  caBes  a  private  action  will  lie  for  the  breach 
ofthedut;;  the  breach  of  the  duty,  irrespective  of  negligence,  is  not  con- 
clusive of  liBbilitj,  but  it  ia  evidence  of  negligence;  and,  finally,  it  must 
appear  that  the  breach  of  the  duty  was  the  proiimute  cause  of  the  injur;. 

In  Philadelphia,  etc.,  R.  Co,  e.  Stebbing  (Md.  1884),  19  Am.  &  Eng.  B, 
R.  Ca9.  36,  an  ordinance  of  the  city  of  Port  Deposit  provided  "that  no 
locomotive  shall  be  propelled  iritbio  the  limits  of  Port  Deposit  at  a  greater 
rale  of  speed  than  ten  miles  an  hour,  and  that  any  engineer  or  other  person 
violating  this  ordinance  shall  be  fined  ten  dollars  for  each  and  every  ofFence." 
The  court  observes:  "This  ordinance  is  gcner&l,  and  is  for  the  protection 
of  the  public  generally;  but  the  neglect  or  disregard  of  the  general  duty 
thereby  imposed  for  the  protectionof  every  one  can  never  become  the  founda- 
tion of  a  mere  perBonal  right  of  action  until  the  individuat  complaining  ia 
shown  to  have  t>een  placed  in  a  position  that  gave  him  ]f articular  occavon 
and  right  to  insist  upon  a  performance  of  the  duty  to  himself  personally. 
The  duty  t>*i2BA)|j£o  the  public  composed  of  individual  persons,  each  per- 
son speciBlly'racfSlrStfoj  the  breach  of  duty  thus  imposed,  becomes  entitled 
to  compensntion  for  such  injuries.  But  he  must  have  been  in  position  to 
entitle  him  to  the  protection  that  the  ordinance  was  designed  to  aSord,  and 
he  must  show  bow  and  under  what  circumstances  the  duty  arose  to  him 
personally,  and  how  it  was  violated  by  the  negligence  of  the  defendant  to 
such  injuries.  In  other  words,  it  must  appear  that  the  negligent  breach  of 
the  duty  imposed  b;  the  ordinance  was  the  direct  and  proximate  cause  of  the 
injury  complained  of,  and  that  such  injury  would  not  have  occurred  but  for 
the  violation  of  that  duty." 

In  Hanlon  v.  South  Boston,  etc.,  R.  Co.,  139  Haas.  810;  s.  c,  3  Am.  & 
Eng.  R.  R.  Cas.  810,  in  an  action  against  a  street  railway  corporation,  for  an 
injury  caused  by  a  car  being  carelessly  driven  over  the  pl&intiS,  it  was  held 
that  the  fact  that,  at  the  time  of  the  injury,  the  car  was  being  driven  at  a 
rata  of  speed  prohibited  by  a  city  ordinance,  although  evidence  of  n^li* 
gence  on  the  part  of  the  corporation  is  not  conclusive  evidence  of  such  neg' 
ligence.  See.  also.  Hall  e.  Ripley,  119  Mass.  ]3fi;  Lane  v.  Atlantic  Works, 
111  Haas.  186;  Wrights.  Halden,  etc.,  R.  Co.,  4  Allen  (Haas.),  iJ88. 

In  Fitzgerald  n.  St.  Paul,  etc.,  R.  Co.,  29  Minn.  886;  s.  c,  8  Ara.  &  Eng. 
R.  R.  Cas.  810,  a  statute  provided,  "  any  company  or  corporation  o[)erating 
a  line  of  railroad  in  this  State,  and  which  company  or  corporation  has 
failed  or  neglected  to  fence  said  road,  and  to  erect  crossings  and  cattle- 
guards,  and  maintain  such  fences,  crossings,  and  cattle-guards,  shall  here- 
after be  liable  for  all  damages  sustained  oy  any  person  in  consequence  of 
such  failure  or  neglect."  It  was  held  that  the  statute  imposed  no  duty  to 
fence  aa  respects  children,  and  the  statutory  requirement  had  no  application 
to  a  CEue  where  a  child  eighteen  months  old  had  wandered  away  from  its 
father,  and  upon  the  truck  at  a  point  opposite  n  station  and  platform. 

In  Hayes  c.  Michigan  Cent.  B.  Co.,  Ill  U.  8.  328;  s.  c,  15  Am,  &  Eng. 
R.  R.  Cas.  394.  a  general  net  gave  to  the  municipal  corporation  power  to 
require  railroad  companies  to  fence  their  tracks,  etc.,  and  in  caae  of  non- 
compliance with  the  ordinance,  so  requiring,  imposed  a  liability  for  injuries 
to  animals  for  all  damages  the  owners  might  sustain.  In  pursuance  of  this 
authority,  the  city  ordinance  required  the  railroad  company  to  build  such 
suitable  walls,  fences,  or  other  sufficient  works  as  will  prevent  animals  from 
straying  upon  or  obstructinff  its  tracka,  and  secure  persons  and  property 
from  danger.  The  company  oad  erected  a  fence  on  one  side  of  its  track, 
but  this  had  become  out  of  repair  at  a  certain  point,  and  the  neglect  to  teace 
31  A.  &  E.  It.  Caa.-39 


^d  by  Google 


460  MOBILB   AND   OHIO   B.    CO.   V.   STEOUD. 

in  accordance  with  the  ordioance  was  all^d  to  be  the  cause  of  an  iiijar7  to 
A  child,  and  to  coofer  upon  him  a  right  oi  action  (or  damaeea.  The  court 
otMcrred;  "It  is  said,  aowever,  that  it  does  not  follow  that  whenever  a 
statutory  duly  is  created,  any  person,  who  can  say  that  he  has  Buatained  in- 
juries from  the  noo-performHnce  of  that  duty,  can  maintain  an  action  for 
damages  against  the  pcraun  on  whom  Che  duty  is  imposed;  and  we  are  re- 
ferred to  the  cose  of  Atkiason  t.  New  Castle  Water  Works  Co.,  2  Excfa.  Div. 
441,  as  authority  for  that  proposition,  qualifying  as  it  does  the  broad  doc- 
trine stated  by  Lord  Campbell  ia  Couch  s.  Steel,  3  Bl.  and  B1.402.  But 
accepting  the  more  limited  doctrine  admitted  in  the  faogua^e  of  Lord  Cairns 
in  the  case  cited,  that  '  whether  such  an  action  can  be  maiotained  must  de- 
pend on  the  purview  of  the  Legislature  in  the  particular  statute,  aud  the 
language  which  they  have  there  employed,'  we  think  the  ri^ht  to  sue,  under 
the  circumstances  of  the  present  case,  clearly  within  its  limits.  In  the  snal- 
Hgous  CHse  of  fences,  required  by  the  statute  as  a  protection  for  animals,  an 
action  is  given  to  the  owners  for  loss  caused  by  the  breach  of  the  duty.  And 
although  in  the  case  of  injury  to  persons,  by  reason  of  the  same  default,  the 
failure  to  fence  is  not,  as  in  the  case  of  animals,  conclusive  of  the  liability, 
irrespective  of  negligence,  yet  an  action  will  lie  for  the  personal  injury,  and 
thia  breach  of  duty  wil)  be  evidence  of  negligence.  The  duty  is  due,  not  to 
the  city  as  a  municipal  body,  but  to  the  public  ss  composed  of  individual 
persons;  and  each  person  specially  injured  by  the  breach  of  the  obligation 
18  entitled  to  his  individual  compensation,  and  to  an  action  for  its  recovery." 

In  Meek  e.  Pennsylvania  Co.,  88  Ohio  St.  632;  s.  c,  IS  Am.  &  Eng.  H.  R. 
Cas.  048.  the  court  observes;  "While  the  violation  of  a  law  or  ordinance  is 
not  per  ss  a  conclusive  proof  of  negligence  that  will  render  the  company  lia- 
ble, yet  it  is  competent  to  be  considered  with  all  the  other  evidence  of  the 
case.  The  ordinance  was  enacted  for  the  purpose  of  rendering  the  streets 
more  safe  and  convenient  for  the  public-  It  is  a  police  regulation  defining 
what  is  the  leeitimate  use  of  the  streets  by  the  railroad  company.  It  was  a 
command  to  those  operating  trains  witliin  the  city  limits,  which  it  was  their 
duty  to  obey,  and  a  disoliedience,  either  wilfully  or  negligently,  resulting 
in  injury  is  some  evidence  to  be  considered  in  determining  the  defendant's 
liability.  It  served  to  give  character  to  the  act  causing  the  injury,"  llcCar- 
thy  c.  Wolfe,  48  Ho.  630;  Lane  c.  Atlantic  Works,  111  Mass.  136;  Bt.  Louis, 
etc.,  R.  Co.  0.  Matthias,  60  Ind.  6S;  Baltimore,  etc.,  R.  Co.  e.  State,  SQ  Hd. 
aaa;  McOrath  *  New  York,  etc..  R.  Co..  63  N.  Y.  532;  Haas  e,  C-  H.  ft 
N.  R.  Co.,  41  Wis.  50;  CorreU  u.  B.  C.  P.  A  N.  R.  Co.,  88  Iowa,  130;  Bal 
timore  City  Passenger  R.  Co.  e.  UcDonald,  43  Md.  034;  Wabash,  etc.,  B. 
Co.  n.  Henks,  91  111.  406. 

In  Philadelphia,  etc.,  R.  Co.  c.  Ervin,  89  Pa.  St.  71,  it  appeared  that  an 
ordinance  of  the  city  of  Philadelphia  required  that  a  cap-log  be  placed  on 
the  sides  and  end  of  every  wharf,  snd,  through  the  company's  neglect  of 
such  ordinsnce,  the  plaintiff  suffered  damage  bj  his  horse  backing' off  the 
company's  wharf.  The  court  would  allow  no  recovery.  In  its  opinion  the 
court  observes:  "There  are  indeed  cases  where  such  ordinances  have  been 
received  in  evidence  in  common  law  actions  for  negligence,  but  they  are 
generally  such  as  enter  into  the  case  itself,  or  enforce  a  common-law  duty. 
Such  are  ordinances  regulsting  the  speed  oF  railroad  trains  when  passing 
through  towns  or  cities.  Here  the  ordinance  may,  and  usually  does,  enter 
into  the  question  of  negligence,  for  the  rate  of  speed  to  be  anticipated  has 
much  to  do  with  the  care  to  t>e  exercised  by  those  crossing  the  tracks.  So, 
on  the  other  hand,  those  in  charge  of  trains  are  not  only  subject  to  the 
common-law  duty  of  passing  through  towns  slowly  and  cautiously,  but  they 
must  know  that  persons  depending  upon  the  observance  of  the  municip^ 
ragulations  will  not  take  all  that  care  which  would  be  required  in  the  open 


^d  by  Google 


TBESPASSEB  ON   TRACK — OONTEIBUTOBT   NEGLIOEKOB.   461 

oountry.  The  case  in  hand,  bowo?er,  involved  no  Buch  duties.  Whethef 
the  defendant  Bhould  or  should  not  have  had  cap-logs  upon  ita  wharves  was 
A  matter  which  nddreseed  itself  to  tite  judgment  of  those  having  its  affairs 
in  hand.  The  omission  of  these  caps  did  not  per  te  involve  the  companj  in 
aDj  responsibility  beyond  the  penalty  of  the  ordinance.     Neither  could  the 

tiUintifl!  have  placed  any  dependence  upon  the  observance  of  audi  ordinance, 
or  he  knew  that  if  it  applied  at  all  to  the  defendant's  wharves  it  had  not 
been  observed;  he  knew  that  he  must  depend  for  the  preservation  of  his 
property  ufion  his  own  care  and  skill,  and  these  failing,  he  then  had  hia 
common-law  remedy  for  compensation."  See,  also,  Phllai&lphia,  etc.,  R.  Co. 
•.  Boycr,  97  Pa.  Sb.  91. 

Anttlogoui  Municipal  Caieh^In  Eeeoey  «.  Sprague,  11  R.  I.,  456,  it  was 
held,  in  accordance  with  several  other  decisions,  that  where  a  municipal  or- 
dinance directs  the  removal  within  a  certain  time  of  ice  and  snow  from  a 
city's  streets  b^  the  inhabitants  of  houses  fronting  thereon,  and  an  action  is 
brought  against  one  of  such  inhabitants  who  has  failed  to  comply  with  the 
ordinance,  and  thereby  csused  an  iifjury  to  the  plaintiff,  there  can  be  no  re- 
covery, because  the  only  liability  of  the  delinquent  is  to  pay  the  penalty  pre- 
scribed by  the  ordinance.  Vandyke  P.  City  of  Cincinnati,  1  Disney  (Ohio) 
£83;  Eirbj  v.  Boylston  Market  Assoc,  U  Qray  (Mass.)  349;  Flynn  s.  Can- 
ton Co,,  of  Baltimore,  40  Md.  813;  Taylor  ii.  Lake  Shore,  etc..  R.  Co.,  45  Mich. 
74.  See.  also.  City  of  Hartford  v.  Talcott,  48  Conn.  535;  City  of  Eeokuk  e. 
Independent  Diat.  of  Seokuk,  53  Iowa,  853.  JHompare  Chesapeake, etc..  Co.  r. 
Commissioners,  57  Hd.  201;  City  of  Brooklyn  c.  Brooklyn  City  R.  Co..  47 
N.  Y.  475.  See,  also,  comments  upon  Keeney  e.  Bprague,  sUpro,  in  13  Am.  Law 
Bev.  (Oct.  1877)  189. 

In  Grant  e.  Statea  Mill.  etc..  Co.,  80  Alt.  L.  J.  810,  the  effort  waa  to  recover 
from  the  Company  for  injuries  caused  by  jumping  from  a  buming  building. 
It  appeared  that  a  local  act  of  the  legislature  affecting  the  city  of  Providence 
required  the  erection  of  fire-escapes  under  certain  circumstances  upon  certain 
buildinga,  and  although  the  building  in  question  came  clearly  within  the 
provisions  of  the  statute  it  was  held  that  the  action  could  not  be  maintained. 

In  Salisbury  c.  Herchenroder,  106  Maaa.  458.  plaintiff  recovered  damages 
occasioned  by  the  falling  of  a  sign  (in  an  extraordinary  gale)  which  had 
been  snapended  by  defendant  over  a  street,  contrary  to  a  city  ordinance,  and 
plaintiff  was  not  otherwise  negligent. 

In  Owings  «.  Jones.  9  Hd.  117,  the  defendant  waa  held  liable  for  conse- 
quent damages  to  a  party  injured  through  a  negligent  omission  to  comply  with 
tile  provisioDs  of  a  city  ordinance  which  provided  the  mode  in  which  vaults 
in  public  streets  should  be  protected. 

In  Devlin  o.  Gallagher,  6  Daly  (N.  Y.)  494,  a  failure  to  comply  with  the 
provisions  of  an  ordinance  requiring  certain  precautions  in  blasting  was 
faeld  prima  facie  evidence  of  negligence,  sufficient  \o  support  an  action  by 
one  injured  through  such  default. 

In  Baltimore  CityR.  Co.  c.  McDonnell,  48  Md.  552,  under acityordicance, 
limiting  the  speed  of  cars  to  six  miles  an  hour,  the  defendant  was  held  lia- 
ble if  the  jury  believed  from  the  evidence  that  the  accident  would  have  been 
avoided  if  the  cars  had  not  been  moving  at  a  greater  speed. 

Id  Bolit  «.  Pratt,  88  Minn.  838;  s.  c,  8  Am.  &  Eng.  Corp.  Gas.  487,  it 
was  held  that  where,  by  an  ordinance,  which,  in  pursuance  of  its  charter,  a  city 
has  a  right  to  make,  it  is  unlawful  for  any  person  to  leave  a  team  standing 
anfastened  or  unguarded  in  a  public  street,  such  ordinance  was  intended  for 
the  protection  and  benefit  of  persons  travelling  on  the  streets,  and  that  such 

E ergons  are  entitled  to  maintain  an  action  for  damages  for  any  in  jury  suffered 
y  reason  of  the  violation  of  such  ordinance  against  any  one  through  whose 
default  such  injury  occurred. 

RsspoiuJblll^  of  Railroad  Company  for  Injury  to  Traspauera  not  Hen  by 


i,z.dbvG00gle 


452  FABGO  V.   STEVENS. 

Employaai.— HcAlIiater  e.  Burlington,  etc..  B..  Co.,  19,  Am.  &  Eng.  R.  S. 
Cm.  108. 

Duty  of  Company  to  TrBtpauert  on  Trackr— See,  geoerall;,  Rudd  v.  Rich- 
mood  A  D.  R.  Co.,  33  Am.  &  Eug.  K.  R.  Caa.  253;  Louisville,  etc.,  R.  Co.  e. 
Cooper,  6  lb.  5;  Tuenenbroock  ii.  8outhem  Pac,  R.  Co.,  6  lb.  B;  H.  &  T.  C. 
R.  Co,  V.  BymplciDH,  6  lb.  11;  Nortliern  Cent.  R.  Co.u.  State,  6  lb.  e6;Frick 
r.  Bt.  Louis,  etc.,  R.  Co.,  8  lb.  280;  Heeks  e.  South  Pac.  R.  Co.,  8  Tb.  314; 
Colorado  Cent.  R.  Co.  e.  Holmes,  8  lb.  410;  Parher  v.  Wilmington,  etc.,  R. 
Co.,8Ib.420i  L  Aa.N.R.Co.,fl.  Jordon,10  lb.  801;  Yarnell  o.  St.  Louis, 
etc.,  R.  Co.,  ID  lb.  736 ;  Paducah,  etc.,  R.  Co.  v.  Leicher,  12  lb.  61 ;  Bait., 
etc.,  R.  Co,  ii.Depew,  18  lb.  64;  Terre  Haute,  etc,  R.  Co.  c.  Qraliam,  12  lb. 
77;  Louiarille,  etc.,  B.  Co.  o.  Watkina,  12  lb.  8B;  McGeary  b.  Eastern  R. 
Co.,  15  lb.  407;  Bacon  e.  Baltimore,  etc.,  R.  Co.,  16  lb.  409;  Carter  v.  Co- 
lumbia, etc.,  R.  Co.,  15  lb,  414;  Davia  «.  Chicago,  etc.,  R.  Co.,  15  lb.  424; 
Nasbville,  etc.,  R.  Co.,  v.  Smith,  15  lb.  46fl;  E.  Tenn.,  etc.,  R.  Co.  v.  Hum- 
pfarejs,  IS  lb.  472;  Dinwiddle  v.  Louisville,  etc.,  R.  Co.,  15  lb.  483;  Mc- 
Clelland v.  Louisville,  etc.,  R.  Co.,  18  lb.  260;  latematioual,  etc.,  R.  Co.  v. 
Smith,  19  lb.  21;  Burnett  ».  Burlington,  etc.,  R.  Co.,  16  lb.  26;  Central  R. 
Co.  e.  Brinson,  19  lb.  42;  Baltimore,  etc.,  R.  Co.  e.  BUte,  19  lb.  88;  Kejser 
e.  Chicago,  etc.,  R.  Co.,  19  n>.  91;  Louisville,  etc.,  R.  Co.  e.  Green,  19  lb. 
IB;  Louisville,  etc.,  R.  Co.  o.  Howard,  19  lb.  98;  E.  Tenn.,  etc.,  R.  Co.  «. 
Fain,  19  lb.  102;  McAllister  e,  Burlington,  etc.,  R.  Co.,  19  lb.  108;  Bchmit- 
tenhelm  v.  Louisville,  etc.,  R,  Co.,  19  lb.  Ill ;  Scheiffler  e.  Minneapolis,  etc., 
R.  Co.,  19  lb.  178;  Grethen  «.  Chicago,  etc.,  R.  Co.,  19  lb.  849;  Chicago- 
&  E.  niinois  R.  Co.  e.  Hedgea,  26  lb.  550;  Bine  c.  Chicago  <&  A.  R.  Co.,  25 
lb.  545;  Wright  V.  Railroad  Co.,  28  lb.  662;  Shackleford's  Admr.,  c.  Louis- 
ville, etc.,  R.  Co.,  and  note,  28  lb.  691,  594;  Louisviile,  etc.,  R  Co.  •.  6in- 
eatnt,  29  lb.  397 ;  Palmer  e.  Ctiicaga,  etc.,  R.  Co.,  nipra,  p.  SU. 


Faboo,  President,  etc., 


Stbtbks,  Auditor  General,  etc. 
(131  ff.  8.  SeporU.  280.) 

A  State  Btatute  which  levies  a  tax  u^n  the  gross  receipts  of  railroada  for 
the  carriage  of  freight  and  paasengera  into,  out  of,  or  through  the  State,  ia  a 
tax  upon  commerce  among  the  States,  and  therefore  void. 

While  a  State  may  tax  the  monejr  actually  within  the  State,  after  it  has 
passed  beyond  the  stage  of  compensation  for  carrying  persons  or  projferty,  as 
It  ma;  tax  other  money  or  property  within  its  limits,  a  tax  upon  receipts  for 
this  class  of  carriage,  specifically,  is  a  tax  upon  the  commerce  out  of  which  it 
ariaas,  and,  if  that  be  interstate  commerce,  it  is   void  under  the  constitution. 

The  Statea  cannot  be  permitted,  under  the  guise  of  a  tai  upon  buainess 
transacted  within  their  borders,  to  impose  a  burden  upon  commerce  among 
tbe  States,  when  the  bugineas  so  taxed  is  itself  interstate  commerce. 

In  error  to  the  supreme  court  of  tlie  State  of  Hichigan. 
A-shley  Pond  for  plaintiff  in  error. 
Edward  Bacon  for  defendant  in  error. 


^d  by  Google 


TAXATION — INTERSTATE   COMMEKOB.  453 

MiLLBB,  J. — Tiiis  ie  a  writ  of  error  to  the  BOpreme  court  of  tlie 
State  of  Micliii^an  to  bring  Iiei-e  for  review  a  decree  sustaining  a 
demurrer  to  the  complainant's  bill  in  cbancerj',  and  dismisaing  the 
hilt.      The  coiiiplainatit  broiigiiC  Bait  as  president  of  fu™. 

the  Merchants'  Dispatch  Transportation  Co.,  averring  that  said 
«oin|)an^  is  a  juint-stoclc  association  organized  and  existing  under 
the  laws  of  the  State  of  New  York,  and  by  the  laws  of  that  State 
Authorized  to  sue  in  the  name  of  itiS  president.  The  bill,  so  far  as 
it  preeeuts  the  questions  on  which  this  court  can  have  jurisdiction, 
charges  as  follows: 

"  Second.  That,  during  the  year  ending  with  the  thirty-first  day 
of  December,  a.d.  1883,  the  said  transportation  compaa;  waa 
engaged  in  the  business  of  soliciting  and  contracting  for  the  trans- 
portation of  freight  required  to  be  carried  over  connecting  lines  of 
railroad  in  order  to  reach  its  destination ;  and,  for  the  proeecutioa 
of  its  said  business,  it  bad  agencies  located  generally  throughout  the 
United  States  and  the  dominion  of  Canada.  The  said  transportar 
tion  company  issued  through  bills  of  lading  for  such  freight,  and 
caused  the  same  to  be  carried  by  the  appropriate  railroad  compa- 
nies^ and,  as  compensation  for  its  service  in  the  premises,  the  said 
transportation  company  was  paid  by  the  said  railroad  companies  a 
definite  proportion  of  the  through  rate  charged  and  collected  by 
said  companies  for  the  carriage  of  said  freights. 

"  Third.  That  during  the  said  year  tlie  said  transportation  com- 
pany wus  possessed  of  certain  freight  cars  which  were  used  and 
run  by  tlic  railroad  companies  in  wtiose  possession  they  chanced 
from  time  to  time  to  be  for  the  transportation  upon  their  own  and 
connecting  lines  of  railroad  of  thi'ough  freight,  prinoipally  be- 
tween the  city  of  New  York,  in  the  State  of  New  York,  and  Bos- 
ton, in  the  State  of  Massachusetts,  and  Chicago,  in  the  State  of 
Illinois,  and  other  points  and  commercial  centres  in  the  west, 
northwest,  and  southwest,  without  the  said  State  of  Michigan ; 
tiiat  said  cars  were  not  used  for  the  carriage  of  freiglit  between 
points  situate  within  the  said  State  of  Michigan,  but  wholly  for 
the  transportation  of  freight,  either  passing  through  the  State,  or 
originating  at  points  witliin  said  State  and  destined  to  points  with- 
out; that  the  said  several  railroad  companies  thus  mailing  use  of 
said  cars,  during  the  said  year,  paid  to  the  said  transportation  com- 
pany as  coinpeiisation  therefor  a  definite  sum  per  mile  for  the  dis- 
tance tnivelled  by  the  said  cars  over  their  respective  lines. 

"  Fourth.  That  the  said  transportation  company  dnriiig  tlie  said 
year  was  not  running  or  interested  in  any  special  fast,  through,  or 
other  stock,  coal,  or  refrigerator-car  freight  line,  or  doing  business 
in  or  running  cars  over  any  of  the  railroads  of  said  State  of  Michi- 
gan otherwise  than  as  iu  the  preceding  paragraphs  stated, 

"  Fifth.  That  prior  to  the  first  day  of  April,  a.d.  1884,  the  com- 
missioner of  railroads  of  the  State  of  Michigan  transmitted  to  the 


^dbvGoo^lc 


454  FAEGO  V.  STETEN8. 

B^d  transportation  compan;  certain  blank  forme  of  a  report  to  be 
made  to  liirn  pursnant  to  the  provisions  of  an  act  of  the  legislature 
of  tlie  State  of  Michigan  approved  June  5,  1883,  entitled  '  An  act 
to  provide  for  the  taxation  of  persons,  copartners! lips,  associations, 
car-loaning  compaiiieE,  cor'porations,  and  fast-freight  lineE  engsiged 
in  the  business  of  running  cars  over  any  of  tlie  railroads  of  tins 
State,  and  not  being  exclusively  the  property  of  anv  railroad  com- 
pany paying  taxes  o)i  their  gfoss  receipts.'  with  the  requii-enieiit 
that  tlie  said  transportation  company  sliuuld  make  up  and  return 
said  report  to  the  office  of  said  commissioner  on  or  befoix;  the  lirst 
day  of  April,  1884,  under  the  penalties  of  said  act;  that,  on  or 
about  said  first  day  of  April,  in  compliance  with  said  demand,  bat 
protesting  that  the  same  was  without  authority  of  law,  and  that 
said  act  was  invalid — or,  if  valid,  was  not  applicable  to  the  said 
transportation  company — the  said  transportation  company  made 
and  hied  with  said  commissioner  a  report,  duly  verined,  setting 
fortii  that  the  gross  amount  of  the  receipts  of  the  said  transporta- 
tion company  for  the  mileage  of  said  cars  during  said  year  1883^ 
wiiile  in  use  in  tlie  transportation  of  freight  between  points  with- 
out said  State  and  passing  through  s:iid  State  in  transit,  estimated 
and  prurated  according  to  the  mileage  of  said  cars  within  said 
State  of  Michigan  wliiie  so  in  use,  was  the  sum  of  $95,714.50; 
and  while  in  the  use  of  transportatiun  of  freiglit  from  points  with. 
out  to  points  Avithin  said  State  of  Michigan,  and  from  points  within 
to  points  without  said  State,  estimated  and  prorated  according  to 
the  mileage  of  said  cars  within  the  State  of  Michigan  while  so  in  , 
use.  was  tiie  sum  of  $28,890.01,  making  in  the  aggregate  the  snin 
of  $124,604.51 ;  that  during  said  year  it  received  no  moneys  what- 
ever on  business  done  solely  within  the  said  State  of  Michigan, 
and  no  monevs  which  were  or  could  be  regarded  as  earned  during 
said  ye.ir  within  the  limits  of  said  State  of  Michigan  other  than  as 
liereiuTjefore  and  in  ssiid  rejxirt  set  forth, 

"Sixth,  That  by  the  terms  of  said  act  it  is  the  dnty  of  said 
'commissioner  of  railroads  to  make  and  tile  witli  the  auditor  gen- 
eral of  s,iid  State  of  Michigan,  prior  to  the  firet  daj'  of  Jane  each 
year,  a  computation  based  upon  the  report  of  eacli  person,  associa- 
tion, copartnership,  or  corporation  taxable  thereunder  of  the 
amount  of  tax  to  become  dne  fi-om  them  respectively,  and  each 
such  person,  association,  copartnership,  or  corporation  is  required, 
on  or  before  the  fii-st  day  of  Jnly.in  such  year,  to  pay  to  the  treas- 
nrcr  of  said  State  of  Michigan,  upon  the  statement  of  the  auditor 
general  tlicrcof,  two  and  one-half  per  cent  upon  its  gross  receipts- 
as  computed  by  tiie  said  commissioner  of  railroads,  and  derived 
fram  loaning,  renting,  or  hiring  of  cms  to  any  railroad  or  other 
corporation,  association,  copartnership,  or  party.  It  was  also  pro- 
vided in  said  act  that  for  tiie  said  taxes,  and  interest  thereon,  and 
the  penalty  imposed  for  delay  in  the  payment  thereof,  the  said 


^d  by  Google 


TAXATION — INTEKSTATE  COMMEUCE.  45& 

State  ehoald  liare  a  lien  upon  all  the  propei'ty  of  the  person,  ueso- 
ciation,  copai-tnei-ship,  or  corporation  so  taxed,  and,  in  default  of 
the  payment  of  said  tax  by  and  witliin  the  time  so  prescribed,  t!ie 
auditor  general  of  said  State  was  antliorized  to  issne  liia  warrant  to 
the  sheriff  oi  any  connty  in  said  State,  commanding  liim  to  levy 
the  same,  together  with  tcti  per  cetit  for  hin  feus,  by  distress  and 
sale  of  any  of  the  projjerty  of  the  corporation  or  party  neglecting 
or  refusing  to  pay  such  tax  wherever  the  same  may  be  fonud 
within  the  connty  or  State. 

"Seventh.  That  the  said  comuiiseioner  of  railroadB  has  com- 
puted and  determined  that  the  amount  of  clie  gross  receipts  of  the 
said  transportation  company  under  the  said  act  is  the  said  snni  of 
$28,890.01,  and  that  there  is  due  from  said  transportation  compiiiiv 
to  the  State  of  Michigan,  as  a  tax  thereon,  the  sum  of  $722.25,  and 
has  cransinitted  said  computation  to  the  said  auditor  general,  and  . 
your  orator  shows  that>uniess  said  tax  is  paid  by  the  said  transpor- 
tation company  on  or  before  the  first  day  of  July,  1884,  it  will  be- 
come the  duty  of  the  said  auditor  general  under  the  said  act,  and 
the  said  auditor  general  threatens  that  he  will  proceed,  to  enforce 
payment  of  the  said  tax  against  said  transportation  company  by 
the  seizure  and  sale  of  the  property  of  said  ti-an spoliation  company 
under  the  provisions  of  said  act. 

"Eiglith.  That  your  orator  is  advised,  and  so  charges,  that  the 
said  act.  as  to  the  said  gross  receipts  of  the  said  transportation  com- 
pany, or  of  any  of  its  receipts  or  earnings  from  tiie  nse  of  its  cars, 
within  the  State  of  Miciiigiin,  and  the  transaction  of  its  businesft 
'  in  the  manner  aforesaid,  is  in  violation  of  tiie  constitution  of  the 
United  States  and  void,,  and  that  said  act  is  inapplicable  to  the  said 
transportation  cumpatiy,  and  iiioperative  for  further  reasons  appear- 
ing upon  its  face,  and  that  said  transportation  company  is  not 
amenable  thereto. 

"Niru'i.  Titat  the  chief  office  of  the  said  transportation  corn- 
puny  for  the  transaction  of  corjiorate  business  was,  during  said  year, 
and  is,  ill  the  city  of  New  Toik,  in  the  State  of  New  York,  and 
that  all .  the  nioneye  earned  by  it,  as  set  fortli  in  the  second  and 
third  paragraphs  hereof,  wei'e  paid  to  it  at  its  said  oflice;  that 
said  company,  during  said  year,  had  no  funds  or  property  whatso- 
ever witiiin  the  State  of  Michigan,  except  cars  in  transit  and  office 
_  furniture  in  the  possession  of  iigents.  ana  that  during  said  year  the 
'  said  transportation  company  was  subject  to  taxation,  and  was  taxed, 
on  aeeonnt  of  its  pioiierty  and  earniiif^,  within  and  under  the  laws 
of  the  State  of  Now  York." 

The  bill  then  prays  for  a  subpcena  against  William  C.  Stevens, 
auditor  general  of  the  State  of  Michigan,  and  for  an  injunction  to 
prevent  him  from  proceeding  in  the  collection  ofsaid  taxes.  To 
this  bill  the  defendant  Stevens  demurred,  and  the  circuit  court  for 
the  county  of  Washtenaw,  in  whicli  tiiis  suit  was  brought,  over- 


^dbvGooglc 


4Sd  FAKQO  v.   STEVENS. 

ruled  that  demurrer.  From  this  decree  the  defendant  appealed 
to  the  Bupreine  court  of  the  State,  where  the  judgraeot  of  the  lower 
court  was  reversed,  the  demurrer  BQBtained,  and  the  bill  dismissed. 
To  reverse  that  decree  this  writ  of  error  was  sued  out. 

The  contention  of  the  plaintiff  in  error  is  that  the  etatute  of 
Michigan,  the  material  paiiis  of  which  are  recited  in  the  bill,  is  void 
as  a  regulation  of  commerce  among  the  States,  which,  by  the  con- 
stitution of  the  United  States,  is  confided  exclusively  to  congress. 
Article  1,  §  8,  cl.  3.  It  will  be  observed  that  the  bill  shows  that 
the  tax  finally  assesBed  by  the  auditor  of  State  against  the  trans- 
portation company  was  for  the  $28,890.01  of  the  gross  receipts 
whioh  the  company  had  returned  to  tlie  commissioner  as  moiiev 
received  for  the  transportation  of  freight  from  points  without  to 
points  within  the  State  of  Michigan,  and  from  points  witiiin  to 
points  without  that  State,  and  that  no  tax  was  assessed  on  the 
|95,71i.50  received  for  transportation  passing  entirely  through 
the  State  to  and  from  other  States. 

There  is  nothing  in  the  opinion  of  the  supreme  court  of  the 
State,  which  is  found  in  the  transcript  of  the  record,  to  explain 
this  discrimination.  There  is  nothing  in  the  statute  of 
■»TE  ooa-  the  Stnte  on  which  this  tax  rests  which  makes  such  a 
distinction,  nor  is  there  anything  in  the  commissioner's 
requirement  for  a  report  which  suggests  it.  It  must  have  been, 
therefore,  upon  some  idea  of  the  ancliorities  of  the  State  that  the 
one  was  interstate  commei'ce  and  the  other  was  not,  which  we  are 
at  a  loss  to  comprehend.  Freight  carried  from  a  point  without 
the  State  to  some  point  within  the  State  of  MicJiigan  as  the  end 
of  its  voyage,  and  freight  carried  from  some  point  within  tiiat 
State  to  other  States  is  as  much  commerce  among  the  States  as  that 
which  passes  entirely  through  the  State  from  its  point  of  original 
shipment  to  its  destination.  This  is  clearly  stated  and  decided  in 
the  case  of  Reading  R.  Co.  v.  Pennsylvania,  commonly  called  the 
case  of  the  State  Freight  Tax,  15  Wall.  232,  in  which  it  is  held 
that  a  tax  upon  freight  taken  up  within  the  State  imd  carried  out 
of  it,  or  taken  up  without  the  State  and  bronght  within  it,  is  a 
burden  on  interstate  commerce,  and  therefore  a  violation  of  the 
constitutional  provision  that  congress  shall  have  power.to  regulate 
commerce  with  foreign  nations  and  among  the  several  States. 
And  in  Wabash  Ry.  Co.,  v.  Illinois,  118  U.  S.  557.  s.  c.  29  Am  it 
Eng.  K.  R.  Cas.;  1,  it  is  held  that  a  statnte  atteinptinj;  to  regnlaic 
the  rates  of  compensation  for  transportation  of  freight  from  New 
York  to  Peoria,  in  the  State  of  Ilhnois,  or  from  Peoria  to  New 
York,  is  a  regulation  of  commerce  among  the  States.  The  same 
principle  is  established  in  Crandall  v.  Nevada,  S  Wall.  35. 

The  statute  of  the  State  of  Michigan  of  1883,  under  which  this 
tax  is  imposed,  is  entitled  "  An  act  to  provide  for  the  taxation  of 


^d  by  Google 


TAXATION — INTERSTATE  COMMERCE.  467 

per&ous,  copai'Ciierehips,  asBOciutioDS,  car-loaning  companies,  corpor- 
ations, and  faeUfreiglit  lines  engaged  in  the  business  of  BunjTomTno- 
rnnning  care  over  any  of  the  railroads  of  this  State,  "™™- 
and  not  being  exclusively  the  property  of  any  railroad  company 
payiug  taxes  on  their  gross  reoeipte.  Sections  1  and  2  require 
reports  to  be  made  to  the  commissioner  of  railroads  of  the  grosa 
amount  of  their  receipts  for  freight  earned  within  the  limits  of 
the  State  from  all  persons  and  corporations  running  railroad  cars 
within  the  State.  The  eommisaionev  is  by  section  i  required  to 
make  and  tile  with  the  auditor  geuei'al,  on  the  first  day  of  June 
of  each  year,  a  computation  of  the  araountof  tax  which  would  be- 
came due  on  the  fii'St  day  of  July  next  succeeding  fi-om  each  per- 
son, association,  or  corporation  liable  to  pay  such  taxes.  Each 
one  of  these  is  by  section  5  required  to  pay  to  the  State  treasurer, 
upon  the  statement  of  the  auditor  general,  an  annual  ttix  of  2^  per 
cent  upon  its  gross  receipts,  as  computed  by  the  commissioner  o£ 
railroads. 

It  will  thus  be  seen  that  the  act  imposed  a  tax  upon  all  the  gross 
receipts  of  tlie  Merchants'  Dispatch  Transportation  Company,  a 
<iorporation  under  the  laws  of  the  State  of  New  York,  and  with 
its  principal  place  of  bushiese  in  that  State,  on  account  of  goods 
transported  by  it  in  the  State  of  Michigan  ;  and  the  bill  states  that 
tlie  company  carried  no  freight  the  transportation  of  which  was 
between  points  exclusively  within  that  State. 

Tlie  subject  of  the  attempts  by  the  State  to  impose  burdens 
npon  what  lias  come  to  be  known  as  interstate  commerce  or  traffic, 
and  which  is  called  in  tiie  Constitution  of  the  United 
States  "commerce  among  tiie  States,"  by  statutes  ^^^i^„^ 
which  endeavor  to  regulate  the  exercise  of  that  com-  non  oivxii  bt 
merce,  as  to  the  mode  by  whicli  it  shall  be  conducted,  THic»niiTio. 
or  by  tiie  imposition  of  taxes  upon  the  articles  of  com- 
merce, or  upon  the  transportation  of  those  articles,  has  been  very 
much  agitated  of  iate  yeai-s.  It  has  received  the  attentive  consid- 
ei-.ition  of  this  conrt  in  many  cases,  and  especially  within  the  last 
live  yeai's,  and  has  occupied  congress  for  a  time  quite  as  long. 
The  recent  act,  approved  February  4,  1887,  entitled  "An  act  to 
regulate  commerce,"  passed  after  many  years  of  effort  in  that  body 
ia  evidence  that  congress  has  at  last  undertaken  a  duty  imposed 
upon  it  by  the  constitution  of  the  United  States,  in  the  declaration 
that  it  shall  liave  power  "to  regulate  commerce  with  foreign  na- 
tions, and  among  the  several  States,  and  with  the  Indian  tribes." 
■Congress  has  freely  exercised  this  power  so  far  as  relates  to  com- 
merce with  foreign  nations  and  with  the  Indian  tribes,  but  in  re- 
gard to  commerce  among  the  sevcrid  States  it  has,  until  this  act, 
refrained  from  the  passage  of  any  very  important  regulation  upon 
this  subject,  except  perhaps  tlie  statutes  regulating  steam-boats, 
and  tiieir  occupation  upon  the  navigable  waters  of  the  country; 


^dbyGoogle 


408  PAUGO  «.    STEVENS. 

With  refci-ence  to  the  ntterances  of  tliie  court,  aiiti'l  within  » 
yery  short  timo  paGt,  fi&  to  \v}iat  constitutes  commerce  among  the 

several  States,  ana  also  as  to  wliat  enactments  by  the  State  legisla- 
tures are  in  violation  of  the  constitntional  provision  on  tiiat  sub- 
ject, it  may  be  admitted  that  tlie  court  lias  not  always  employed 
tlie  same  language,  and  that  all  of  tlie  judges  of  tlie  court  who  have 
written  opinions  for  it  may  not  havo  meant  precisely  the  same 
thing.  Still  we  tltink  the  more  recent  opinions  of  the  court  have 
pretty  clearly  established  principles  upon  that  subject  which  can 
lie  readily  applied  to  most  cases  requiring  the  coiiBtruction  of  tlie 
constitDtional  provision,  and  that  tlieEe  recent  decisions  leave  no 
room  to  donbt  that  the  statute  of  Michigan,  as  interpreted  by  its- 
enpreme  court  in  the  present  case,  is  forbidden  as  a  regulation  of 
commerce  among  the  States,  the  power  to  make  which  is  withheld 
from  the  State. 

Tiie  whole  questiou  lias  been  so  fully  considered  in  these  decis- 
ions, and  the  case,  themselves  so  carefully  reviewed,  that  it  would 
ADTHounn  he  doing  little  more  than  repeating  the  language  of  the 
TOMiDiBBD.  arguments  used  in  them  to  go  over  the  gronnd  again. 
Tlie  cases  of  State  Freight  Tax  and  State  Tax  on  Railway  Qrasa 
Receipts,  which  were  considered  together,  and  decided  at  the  De- 
cember term,  1872,  and  reported  in  15  Wall.  232-328,  pi'csent  the 
points  in  the  case  now  before  us  perhaps  as  clearly  as  any  which 
have  been  before  this  court.  A  statute  of  the  Stats  of  Pennsyl- 
vania imposed  upon  all  the  railroad  corporations  doing  bnsiucss 
within  that  State,  as  well  as  steam-boat  compajiies  and  others  en- 
gaged in  the  carrying  trade,  a  specific  tax  on  each  2000  pounds  of 
freight  carried,  graduated  according  to  the  articles  transported. 
These  were  arranged  into  three  classes,  on  the  firet  of  which  a  tax 
of  two  cents  per  ton  was  laid,  upon  tlie  second  three  cents,  and  upon 
the  third  five  cents.  The  Reading  R.  Co.,  a  party  to  the  suit,  in 
making  its  report  under  this  statute,  divided  its  freight  on  which 
the  tax  was  to  bo  levied  into  two  classes;  namely,  fi-eight  trans- 
ported between  points  within  the  State,  and  fi-eiglit  wliicli  either 
passed  from  within  the  State  out  of  it,  or  from  wicliont  the  State 
jnto  it.  The  supreme  conrt  of  the  State  of  Pennsylvania  decided 
that  all  the  freight  carried,  without  regard  to  its  destination,  waft 
liable  to  the  tax  iHi)>osed  bv  the  statute-  This  court,  however,  held 
tliat  freiglit  carried  eTilirely  through  the  State  from  without,  and 
the  other  class  of  freight,  brought  into  the  State  from  without,  or 
earned  from  within  to  points  without,  all  oame  under  the  descrii>- 
tioii  of  "commerce  among  the  States,"  within  the  meaning  of  the 
Constitntion  of  the  United  States;  and  it  lield  also  that  freight 
transported  from  and  to  points  exclusively  within  the  limits  of  the 
State  was  internal  conimei-ce,  and  not  commerce  among  the  States. 
The  taxing  law  of  the  State  was  therefore  valid  as  to  the  latter  class 
of  transportation,  but  with  regard  to  the  others  it  was  invalid,  l>e- 


^d  by  Google 


TAXATION — INTERSTATE  OOMMEIiOE.  469f 

caaee  it  was  inturstate  commerce,  and  tlie  State  could  lay  no  tar 
upon  it.  In  that  case,  wliieli  was  very  thoronghly  argued  and 
Tery  fnUy  considered,  the  case  of  Crandall  v.  Nevada,  6  Wall.  85, 
was  cited  ae  showing,  in  regard  to  transportation,  what  was  strictly 
internal  commerce  of  a  Slate  and  wluit  was  interstate  commerce. 
The  court  said:  "It  is  ^ot  at  all  material  that  the  tax  is  levied  npon 
al!  freight,  as  well  that  which  is  wholly  internal  as  that  orabarked 
in  interstate  trade.  We  are  not  at  this  moment  inquiring  fnrther 
than  whether  taxing  goods  carried  because  they  are  carried  is  a 
regulation  of  carriage.  Tlie  State  may  tax  its  internal  commerce  ; 
but,  if  an  act  to  tax  interstate  or  foreign  commerce  is  unconstitu- 
tional, it  is  not  cared  by  including  in  its  provisions  subjects  within 
the  domain  of  the  State.  Nor  is  a  rule  prescribed  for  carriage  of 
goods  through,  out  of,  or  into  a  State  any  the  less  a  regulation  of 
transportation  because  the  same  rule  may  be  applied  to  carriage 
which  ia  wholly  internal.  BoubtJo^  a  State  may  regnlate  its  inter- 
nal commercQ  as  it  pleases.  If  a  State  chooses  to  exact  conditiona 
for  allowing  the  passage  orcaniage  of  persons  or  fi-eiglit  through  it 
into  another  State,  the  nature  of  tlie  exaction  is  not  changed  by  add- 
ing to  it  similai'  conditions  for  allowing  transportation  wholly  within 
the  State." 

In  the  case  of  Erie  R.  Co.  (a  corporation  of  the  State  of  New 
York)  V.  Pennsylvania,  decided  at  the  same  time,  it  appeared  that 
the  rosd  of  that  company  was  constructed  for  a  short  dii^taiice 
through  a  part  of  the  State  of  Pennsylvania,  and  that  a  similar  tax 
was  levied  upon  it  for  freight  earned  over  its  road,  Tliis  waa 
held  to  be  invalid,  for  the  reasons  given  in  tlie  case  of  the  Reading 
road. 

In  the  other  case  of  State  Tax  on  Railway  Gi-oeb  Receipts,  which 
was  also  a  suit  between  the  Reading  R.  Co.  and  the  State  of  Penn- 
sylvania, an  act  of  tlie  legislature  of  that  State  was  relied  on  wliich 
declared  that,  "  in  addition  to  the  taxes  now  provided  by  law,  every 
railroad,  canal,  and  transportation  company  incorporated  under  the 
laws  of  thisConimunwealth,  and  not  liable  to  tlie  tax  upon  income 
nndcr  existing  laws,  shall  pay  to  the  Commonwealth  a  tax  of  three- 
fourths  of  one  per  centum  upon  the  gross  receipts  of  said  company, 
and  the  said  tax  shall  be  paid  semi-annually  upon  the  firet  days  of 
July  and  January,  commencing  on  the  first  day  of  July  1S66." 

This  tax  was  held  to  be  valid.  The  grounds  npon  whicb  it  was 
distinguisiied  from  the  one  in  the  precedingcase  upon  freight  were 
tliat-  tlie  corporation,  being  a  creation  of  the  legislature  of  Pennsyl- 
vania, and  holding  and  enjoying  all  its  franchises  under  the  author- 
ity of  that  State,  this  was  a  tax  upon  the  franchises  which  it  derived 
from  the  Stale,  and  was  for  that  reason  within  the  power  of  the 
State,  and  that,  in  determining  the  mode  in  which  the  State  could  tax 
the  franchises  wliich  it  had  confon-cd,  it  was  not  limited  to  a  fixed 
sntn  upon  tho  value  of  them,  but  it  could  be  graduated  by  and  pro- 


^d  by  Google 


portioned  to  either  the  value  of  the  privilegeB  c;ranted  or  the  ex- 
tent or  resalts  of  tlieirexei-cise.  '-Very  manifestly,"  said  the  conrt, 
"thJB  Ib  a  tax  npoii  the  ruilroitd  coiiipimy,  measured  in  anionnt  by 
tite  extent  of  its  biisinese,  or  the  degree  to  which  its  franchise  is 
exercised."  Another  reason  given  for  the  distinction  is  that  "the 
tax  is  not  levied,  and,  indeed,  euch  a  tax  cannot  be,  until  the  ex- 
piration of  each  half  year,  iind  until  the  money  received  for  freights, 
and  from  otlier  sonrces  of  income,  has  actually  come  into  the  com- 
pany's hands.  Then  it  has  lost  its  distinctive  character  as  freight 
«arned,  by  having  become  incorporated  into  the  genei-al  mass  of 
the  company's  property.  Wliile  it  must  be  conceded  that  a  t;ix 
upon  interstate  transportation  is  invalid,  there  seems  to  be  ito 
atronger  reaBOii  for  denying  tlie  power  of  a  State  to  tax  the  froits 
of  such  transport^ition,  after  they  liave  become  intermingled  with 
the  general  property  of  the  carrier,  than  ilierc  is  for  denying  her 
jiower  to  tax  goods  whieli  have  l)een  imported,  after  tlieir  original 
packages  liave  been  broken,  and  after  they  have  been  mixed  with 
the  muss  of  jxirsonal  property  in  the  country.  Blown  v.  Maryland, 
12  Wheat.  419." 

The  distinction  between  that  case,  which  is  mainly  relied  upon  by 
the  supreme  court  of  Michigan  in  support  of  ita  decree,  and  the  one 
which  we  now  have  before  us.  ts  very  obvious  and  is  two-fold  : 
First.  The  corporation  which  was  the  subject  of  that  taxation  was 
a  Pennsylvania  corporation  having  the  situs  of  its  busineas  within 
the  State  which  created  it  and  endowed  it  with  its  franchises.  Upon 
those  frnnciiiees,  thus  conferred  by  the  State,  it  was  asserted  tlie 
State  had  a  right  to  levy  a  tax.  Second.  This  tax  was  levied  upon 
money  in  the  treasury  of  the  corporation,  upon  property  within  tite 
limits  of  the  State,  which  had  passed  beyond  the  stage  of  compen- 
sation for  freight,  and  had  become,  like  any  other  praperty  or  money» 
liable  to  taxation  by  the  State.  The  case  before  us  had  neither  of 
these  qualities.  Tlie  corporation  upon  whicli  this  tax  is  levied  is 
not  a  corporation  of  the  State  of  Micliigan,  and  has  never  been  or- 
ganized or  acknowledged  as  a  corporation  of  that  State,  The  money 
wiiich  it  received  for  f reistiit  carried  within  the  State  probably  never 
was  within  the  State,  being  paid  to  the  company  either  at  the  lie- 
ginning  or  the  end  of  its  route,  and  certainly  at  the  time  the  tax 
was  levied  it  was  neither  money  nor  property  of  the  corporation 
within  the  State  of  Michigan, 

The  proposition  that  the  States  can,  by  way  of  a  tax  upon  busi- 
ness ti-ausiicted  within  their  limit's,  or  U]>oii  tiie  franchises  of  cor- 
porations which  tliey  have  chartered.  re>;ulate  such  business  or  the 
affairs  of  such  corporations,  has  often  buen  set  up  as  a  defence  to 
the  allegation  that  the  taxation  was  such  an  interference  with  com- 
mei-ce  as  violated  the  constitutional  provision  now  under  considera- 
tion. But  where  the  business  so  taxed  is  commerce  itself,  and  is 
commerce  among  the  States  or  with  foreign  nations,  the  constitu- 


^d  by  Google 


TASATIOK — INTERSTATE  COMMERCE.  461 

tioiial  provision  cannot  thereby  be  evaded;  nor  can  tlie  States,  by 
granting  franchiBeB  to  corpoi-atioiie  engaged  in  the  bnsinfsa  of  the 
transportation  of  persons  or  merchandise  among  tliem,  which  is 
itself  interatate  commerce,  ncqnire  tiie  right  to  regulate  that  com- 
merce either  by  taxation  or  in  any  other  way. 

This  is  illustrated  in  the  case  of  Cook  v.  Pennsylvania,  97  U.  S. 
'5GQ.  The  State  of  Penneylvanin,  by  her  laws  had  laid  a  tax  npon 
the  amount  of  sales  of  goods  made  by  auctioneers,  and  had  so 
modified  and  amended  this  class  of  taxes  that  in  the  end  it  re- 
mained a  discriminating  tax  upon  goods  so  sold  imported  from- 
abroad.  Tliis  court  held  that  the  tax  which  tiie  auctioneer  was  re- 
quired to  pay  into  the  treasury  was  a  tax  upon  the  goods  sold,  and, 
as  this  tax  was  three-quarters  of  one  per  cent,  upon  foreign  drngs^ 
glass,  earthenware,  hides,  marble-work,  and  dye-woods,  that  it 
was  a  tax  upon  the  goods  so  described  for  the  privilege  of  sell- 
ing them  at  auction.  The  argument  was  made  that  this  was  a 
tax  exclusively  upon  the  bilsinesa  of  the  auctioneer,  which  the 
State  had  a  right  to  levy.  In  that  case,  as  in  others,  it  was  claimed 
that  the  privilege  of  being  an  anctioneer,  derived  from  the  State 
by  license,  was  subject  to  such  taxation  as  the  State  chose  to  im- 
pose; bnt  tlie  proposition  was  overruled,  and  this  court  held  that 
the  tax  was  a  regulation  of  commerce  with  foreign  nations,  and 
that  the  fact  that  it  was  a  tax  upon  tlie  business  of  an  auctioneer 
did  not  relieve  it  from  the  objection  arising  from  the  constitutional 
provision. 

The  same  qnestion  ^rose  in  the  case  of  Gloucester  Ferry  Co.  v~ 
Pennsylvania,  114  U.  S.  196;  s.  c,  13  Am.  &  Eng.  Corp.  Gas. 
365.  That'company  was  a  corporation  chartered  by  the  State  of 
New  Jersey  to  run  a  ferry  carrying  passengers  and  freight  between 
■  the  town  of  Gloucester,  in  that  State,  and  the  city  of  Philadelphia, 
in  the  State  of  Pennsylvania.  It  had  no  property  within  the  State 
of  Pennsylvania,  but  it  leased  a  landing  place  or  wharf  in  that 
city  for  its  business.  The  auditor-general  and  treasurer  of  the 
State  of  Pennsylvania  assessed  a  tax  upon  the  capital  stock  of  this 
corporation  under  the  laws  of  that  State,  which  the  company  re- 
fused to  pay.  Its  validity  was  sustained  by  tlie  State  supreme 
court,  and  the  question  was  brought  to  this  court  by  a  writ  of 
iirror.  It  was  insisted  that  the  tax  was  justified  as  a  tax  upon  the 
business  of  the  corporation,  which,  it  was  claimed,  was  largely 
transacted  in  tlie  city  of  Philadelphia.  The  supreme  court  of  the 
State,  in  giving  its  decision,  stated  that  the  single  question  pre- 
sented for  consideration  was  whether  the  company  did  business 
within  the  State  of  Pennsylvania  within  the  period  for  which  the 
taxes  were  imposed  ;  and  it  held  that  it  did,  because  it  recei'  ed 
and  landed  passengers  and  freight  at  its  wharf  in  the  city  of  Phila- 
delphia. Tlie  argument  was  very  much  urged  in  this  court  that 
the  licensing  of  Srriea  across  navigable  rivers,  whether  dividing 


^d  by  Google 


4(5'^  FAEQO  V.    STEVENS.    ' 

two  States  or  otherwise,  had  always  been  within  the  control  of  the 
States ;  and  that  this,  being  a  mere  tax  upon  the  bnsiness  of  that 
«orporiitiou  caiiied  on  largely  within  tlie  State  of  Pennsylvania, 
was  within  the  power  of  that  State  to  regulate.  But  this  court 
held,  after  an  extensive  review  of  the  previons  cases,  that  the  bnsi- 
neas  of  ferrying  across  a  navigable  stream  between  two  States  was 
necessarily  commerce  among  the  States,  and  could  not  be  taxed,  as 
was  attempted  in  that  case. 

In  the  case  of  Pickard  v.  Pnlhnan  Sontheni  Car  Co.,  117  U.  S. 
34;  8.  c,  34  Am,  &  Eng.  R.  R  Gas.  511  (decided  at  the  last  term 
■of  the  court),  it  was  shown  that  tlie  legislature  of  Tennessee  had 
imposed  what  it  called  a  privilege  tax,  under  the  constitntion  of 
that  State,  of  ,J50  per  annum  upon  every  sleeping-car  or  coach 
run  or  used  apori  a  railroad  in  that  State,  not  owned  by  tiie  rail- 
road company  so  running  or  nsing  it.  This,  it  will  be  perceived,  is 
Tcry  mncli  like  the  tax  in  the  case  before  us,  except  that  it  is  a  spe- 
■cilic  tax  of  $50  per  annum  upon  the  car,  instead  of  a  tax  upon  the 
gross  receipts  arising  from  the  use  of  the  car  by  its  owner.  In 
that  ease,  after  an  exhaustive  review  of  the  pi-evious  decisions  in 
this  class  of  cases  by  Mr.  Justice  Blatchford,  who  delivered  the 
opinion  of  the  court,  it  was  held  that,  as  these  cai-s  were  not  prop- 
erty located  within  the  State,  it  was  a  tax  for  the  privilege  of  carry- 
ing  passengera  in  that  class  of  cars  through  tlie  State,  which  was 
interstate  commerce,  and  for  that  I'easou  the  tax  could  not  be 
unstained. 

Two  cases  have  been  decided  at  the  presept  term  of  the  court  in 
which  tltese  questions  have  been  considered  ;  one  of  them  at  least 
involving  the  subject  now  under  consideration,  namely,  tliatof  Bob- 
bins V.  Taxing  District,  Shelby  Co.,  16  Am.  &  Eng.  Corp.  Cas,  1. 
A  statute  of  that  State  declared  thdt  "all  drummers,  and  all  per- 
sons not  having  a  i-egular  licensed  house  of  business  in  the  taxing 
district,  offering  for  sale  or  selling  goods,  wares,  or  niercliandise 
therein  by  sample,  shall  be  required  to  pay  to  the  county  trustee 
the  sum  of  ten  dollare  pei'  week,  or  twetity-tivo  dollars  per  month, 
for  such  privilege."  Kohbins  was  prosecuted  for  &  violation  of 
this  law,  and  on  the  trial  it  iippcared  that  he  was  a  resident  and  a 
-citizen  of  Cincinnati,  Ohio,  who  transacted  the  business  of  drum- 
ming in  the  taxing  district  of  Shelby  county,  that  is,  soliciting 
trade  by  the  use  of  samples,  for  the  firm  by  which  he  was  em- 
ployed, whose  place  of  busiuesa  was  in  Cincinnati,  and  all  the 
members  of  which  were  residents  and  citizens  of  that  city.  It  was 
argued  in  that  case,  as  in  the  othere  we  have  jnst  considered,  that 
the  State  had  a  right  to  tax  the  business  of  selling  by  samples 
goods  to  be  afterwards  delivered,  and  to  impose  a  tax  upon  the 
persons  called  drummere  engaged  in  that  business.  It  was  further 
insisted  that,  since  the  license  tax  applied  to  pei-sons  residing  within 
the  State  as  well  as  to  those  who  might  come  from  other  States  to 


^d  by  Google 


TAXATION — INTERSTATE  COMMERCE.  463 

-engage  in  that  business,  tliat  it  was  not  a  tax  discriininating  agaioet 
otlier  States,  or  the  products  of  other  States,  and  was  valid  as  a 
tax  upon  that  class  of  business  done  witiun  the  State.  The  wliole 
subject  is  reconsidered  again  in  this  ease  by  Mr.  Justice  Bradley, 
who  delivered  the  opinion  of  tlie  conrt,  in  which  it  is  held  that  the 
business  in  which  Robbins  was  engaged,  namely,  that  of  selling 
goods  by  sample,  wliich  were  in  the  State  of  Ohio  at  the  time,  and 
were  to  be  delivered  in  the  city  of  Memphis,  Tennessee,  consti- 
tuted interstate  commerce,  and  that,  so  far  as  this  tax  was  to  be  im- 
posed upon  Robbins  for  doing  that  kind  of  business,  it  was  a  tax 
upon  interstate  commerce,  and  therefore  not  within  the  power  of 
tlie  State  to  enforce. 

In  the  case  of  Wabash  K.  Co.  v.  Illinois,  118  U.  S.  558;  s.  c, 
26  Am.  &  Kng.  R.  R.  Cas.  1,  the  question  presented  related  to  a 
statutory  regulation  of  that  State  as  to  compensation  for  carrying 
freight.  It  was  held  by  the  snpreme  court  of  Illinois  Co  embrace 
all  contracts  for  transportation  by  railroad  whicli  came  into  or  went 
out  of  the  State,  as  well  as  that  which  was  wholly  within  its  limits; 
and,  althongh  the  controversy  did  not  arise  in  regard  to  a  tax  upon 
interstate  commerce,  yet  the  general  question  was  fully  considered 
ae  to  what  was  interstate  commerce,  and  what  was  commerce  ex- 
clusively within  the  State,  and  how  far  the  former  could  be  thus 
regulated  liy  a  statute  of  a  State.  This  court  held  in  that  case 
that  no  statute  of  a'  State  in  regard  to  the  transportation  of  goods 
over  railroads  within  its  bordera,  which  was  a  part  of  a  continuous  ■ 
voyage  to  or  from  points  outsido  of  that  State,  and  thus  properly 
intei-state  commerce,  could  regulate  the  compensation  to  be  paid 
for  such  transportation ;  that  tlte  carriage  of  passengers  or  freight 
between  different  points  is  connnerce,  and,  except  where  that  is 
wholly  and  exclusively  within  tlie  limits  of  a  State,  it  is  not  suli* 
ject  in  its  material  features  to  be  regulated  by  tiie  State  legislature. 

In  many  other  cases, — indeed,  in  the  last  three  cases  mentioned, 
— tlie  whole  subject  has  been'fully  examined  and  considered  with 
all  the  authorities,  and  especially  decisions  of  this  court  relating 
thereto.  The  result  is  so  clearly  against  the  statute  of  Michigan, 
ae  applied  by  its  supreme  court,  that  we  think  the  judgment  of 
that  court  cannot  stand.  The  decree  of  the  supreme  court  of 
Michigan  is  reversed,  with  directions  for  furtlier  proceedings  in 
accordance  with  this  opinion. 

Whan  Tax  upon  Qrou  Earnings  it  void  u  Rogulatlon  vf  Intsntato 
Commsroe.— See  State  «.  PuUmaD  P.  Car  Co.  and  nute,  13  Am.  &  Eag,  R.  R. 
■  Cas.  807. 


^dbyGoOgle 


464       OHABLOTTE,    COLUMBIA,  ETC.,    E,    CO.    V.    GIBBE3. 

ChABLOTTB,  COLIIIIBU  AMD  AcOTiaTA  R.  Co. 

V. 

GrTESES. 

(Adeatuit  OoK,  South  Camiina.  Oaob«r  18,  1867.) 

The  South  Carolina  gener&l  railro&d  act  of  1881  gi ring  to  a  state  officer  the 
Bupervision  of  all  the  railroads  in  the  Stale,  and  impoaing  the  burden  of  pay- 
ing bis  salary  and  expenses  upon  them,  is  valid  under  the  various  statutory 
and  constitutional  prOTbiona,  as  an  amendment  of  the  charter  of  the  plaintiS 
company. 

A  coDstitUtional  proTision  that  all  property  subject  to  taxation  is  to  be 
taxed  according  to  its  value,  does  not  limit  the  State's  power  of  taxation  to 
taxation  of  property,  and  a  tax  on  raiboad  companies  according  to  their 
income,  is  valid. 

An  act  requiring  all  the  railroad  companies  in  the  State  to  contribute  to 
the  salary  and  expenses  of  the  State  railroad  commissioner  ia  not  invalid  as 
contravening  a  constitutional  provision  requiring  that  all  taxation  shall  be 
uniform. 

The  consolidation  of  several  corporations  into  one  creates  a  new  corpora' 
tlon,  the  rights  of  which  are  dependent  on  the  laws  governing  corporations 
at  the  time  of  the  consolidation,  and  on  the  act  authorising  it. 


Appeal  from  court  of  common  pleas,  Kichland  couiitf  ;  T.  B. 
Frabbb,  Judge. 

Action  by  tlie  Cliarlotte,  Coumbia  &  Augusta  K.  Co.,  plaintiff, 
against  Gibbes,  as  treasurer  of  Bichland  county,  defendant,  to  re- 
cover a  tax  paid  to  defendant  under  protest.  Plaintiff  was  defeat- 
ed and  appealed.  The  tax  was  levied  under  tlie  Soutli  Carolina 
general  railroad  act  of  1881,  §  41  (Gen.  St.  1882,  c.  40,  §  1453), 
wliicli  sectioii  is  as  follows :  "  Tlieeiitire  expenses  of  the  railroad 
commissioner,  incJuding  all  salaries  and  espeiiBefi  of  every  kind, 
shall  be  borne  by  the  several  corporations  owning  or  operating  i-ail- 
roads  within  this  State,  according  to  th  ir  gross  income,  propor- 
tioned to  the  number  of  miles  in  this  State,  to  be  apportioned  Itj 
the  comptroller  general  of  the  State,  wlio,  on  or  before  the  firat  day 
of  October  in  each  and  eveiy  year,  shall  assess  npon  each  of  said 
corporations  its  jnet  proportion  of  such  expenses,  in  proportion  to 
its  said  gross  income  for  tho  current  year  ending  on  ihti  thirtieth 
<!ay  of  June  next  preceding  that  on  which  the  said  aseesemetit  is 
made;  and  the  said  assessment  shall  be  cliarged  up  sgyinst  the 
said  corporations,  respectively,  nnder  the  order  and  direction  of 
tiie  comptroller  general,  and  sliall  be  collected  by  the  several  county 
treasurers,  in  the  manner  provided  by  law  for  the  collection  of  taxea 
from  such  corporations,  and  shall  be  paid  by  the  said  county 
treasurei'S,  as  collected,  into  the  treasury  of  the  State,  in  like  inan- 
nei-  as  other  taxes  collected  by  them  for  the  State." 


^d  by  Google 


TAXATION— CONSTITUTIONAL  LAW.  465 

Defendant  claimed  that  the  law  under  which  the  tax  was  levied 
was  in  conflict  with  the  two  following  constitntional  provisionB. 
Const.  S,  C.  1868,  art.  1,  §  86,  provides  that  "  all  property  scibject  to 
taxation  eimll  \ia  taxed  in-proportion  to  its  value."  Article  9,  §  1, 
pi-ovides  that  '"the  general  aesenihly  ehall  provide  for  a  uniform 
and  equal  rate  of  aeaessmeut  and  taxation,  and  shall  prescribe  snch 
regulations  as  shall  secure  a  just  valuation  for  taxation  of  all  pro- 
perty, real,  persiinal,  and  possessory."  Defendant  further  claimed 
that  the  tax  was  illegal  because  it  was  not  levied  according  to  the 
value  of  its  property,  and  was  not  nnifonn,  as  required  by  the  con- 
Btitiitiou.  Tbe  act  here  in  question  was  passed  after  the  defendant 
corporation  had  received  its  cliarter  under  the  act  of  March,  1869, 
and  the  opinion  sustains  the  former  act  as  being  a  valid  amend- 
ment of  the  charter  nnder  the  reserved  legislative  power  of  amend- 
ment contained  in  Const.  1868,  art.  12,  §  1,  and  act  of  1841,  §  41, 
which  are  quoted,  in  tiie  opinion,  and  were  both  in  force  when 
the  defendant  was  created ;  ibis  reserve  power  of  amendment  being 
apparently  held  to  have  been  exercised  in  view  of  Const.  1868,  art. 
12,  §  5,  which  is  referred  to  in  the  opinion,  and  provides  as  follows : 
"  All  general  laws  and  special  acts  shall  regnlate  the  public  use 
of  all  franchises  which  have  heretofore  been,  or  hereafter  may  be, 
created  or  granted  by  or  under  the  authority  of  this  State,  and  shall 
limit  all  tolls, imposts, and  other  charges'and  demands  under  such 
laws."  The  general  railroad  act  of  1881  further  provides  for  the 
election  of  an  otticer  to  be  known  as  the  "  Railroad  Commissioner," 
and  also  provides  by  section  43  (Gen,  St.  1882,  §  1455)  as  follows: 
"The  commissioner  shall  have  tiie  general  supervision  of  all  rail- 
roads and  railways  ill  this  State  operated  by  steam, and  shall  examine 
the  same,  and  keep  himself  informed  as  to  their  condition,  and  the 
manner  in  which  they  are  operated  with  reference  to  the  security 
and  accommodation  of  tlie  public,  and  the  compliance  of  the  several 
corporations  with  the  provisions  of  their  charters  and  the  laws  of 
the  State ;  and  the  provisions  of  this  chapter  shall  apply  to  all  rail- 
roads and  railways,  and  to  the  corpomtions,  trofite^  receivers,  or 
others  owning  or  operating  the  same." 

tlaa.  H.  liion  for  appellant. 

Ghas.  Hiehardson  Miles,  Atty,  Gen.,  for  respondent. 

SisiPSON,  0.  J. — Section  1463,  Gen,  St.,  imposes  liability,  in  cer- 
tain proportions,  upon  the  railroad  companies  of  this  State  for  the 
salaries  of  the  officera  known  as  "Railroad  Commissioners."  The 
appellant  denies  the  constitntioDality  of  this  act,  and 
claims  exemption  therefrom  on  that  ground.  The  ap-  v««tsd  ktobts 
pcllant  was  brought  into  existence  under  its  present  HTrmTaioM. 
name  in  1869,  by  the  consolidation  of  two  other  com- 
panies, previously  chartered  and  in  operation  at  that  time  as  sepa- 
rate companies.  This  consolidation  was  made  by  virtue  of  the  act 
Bl  A.  &  £.  It.  CaB.-80 


^d  by  Google 


466         OHARI.OTTK,   COLUMBIA,    KIC,    li.    CO    V.    (MBBKS. 

of  March,  1869.  The  two  original  companice,  wliich  by  consolida- 
tion made  the  appellant  compmiy,  it  is  conceded,  were  not  enhject 
to  the  forty  first  section  of  the  act  of  1841,  whereby  the  power  to 
alter,  amend,  etc.,  certain  charters  granted  by  the  legislature  was 
reserved.  On  the  contrary,  said  companies  were  expressly  exempt- 
ed from  the  operation  of  said  section,  thus  giving  them  vested 
rights  which  could  not  Ijave  been  interfered  witii  by  any  subsequent 
legislation,  had  they  remained  separate  and  distinct,  and  continuing 
to  exercise  the  rights  and  powers  conferred  upon  them  in  the  orig-- 
inal  charters.  DartTnoUtli  College  Case.  The  consolidation,  how- 
ever, in  1869  dissolved  the  two  original  compuniee,  and  created  an 
entirely  new  company,  the  appellant,  with  rights  and 
^looml"™™  privileges  not  depenaent  on  or  derived  from  the  cliar- 
KSS'dSSiSmi  tei-B  of  the  original  companies,  but  upon  the  act  anthor- 

■    '  izing  the  consolidation,  and  tlie  law  governing  corpora- 

tions at  the  time.  Now,  at  the  time  of  this  consolidation,  the  con- 
stitution of  1868  and  the  act  of  1841  in  refei'ence  to  corporations 
were  of  force;  the  constitution  (article  12,  §  1)  declaring  "that 
corporations  may  be  formed  under  general  laws,  but  all  such  laws 
may,  from  time  to  time,  be  altered  and  i-epealed  ;"  and,  furtlier, 
"that  the  legislature  shall  regulate  the  public  use  of  all  franchises, 
and  limit  toHs,  imposts,  and  other  charges  and  demands  under  such 
laws."  The  act  of  1841  provided  in  Bection  41  '■  that  it  shall  be 
deemed  a  part  of  the  charter  of  every  corporation  created  under 
the  provisions  of  any  general  laws,  and  of  every  charter  granted, 
renewed,  or  amended  by  act  or  joint  i-esolution  of  the  general  as- 
sembly, unless  such  act  or  joint  I'esolution  sb»ll,  in  express  terms, 
declare  the  contrary,  that  such  charter,  and  every  nmendmeni  there- 
of, should  always  remain  snbject  to  amendment,  alteration,  or  1*6- 
peal  by  the  general  assembly.  Act  1841  (11  St.  168,  now  section 
1361,  Gen,  St.),  It  is  hai-dly  necessary  to  discuss  the  question 
whether  the  appellant  company,  having  been  brought  into  existence 
in  1869,  since  tlie  adoption  of  the  constitution  of  1868,  and  while 
the  act  of  18il, stij^ra,  was  of  force,  is  subject  to  amendment,  alter- 
ation, and  repeal  at  the  disci'etion  of  the  legislature,  there  being 
no  exemption  from  section  41  of  the  act  of  1841  in  thfe  act  under 
which  the  consolidation  took  place. 

The  case  of  Hoge  v.  Railroad  Co.,  99  U.  S.  348,  is  full  to  this 
point,  where  the  act  of  1841  was  construed,  and  where  the  court 
said  :  "Every  charter  amended  or  modihed  was  subject  to  repeal. 
amendment,  or  modificiicion.  Such  is  evidently  the  meaning  of 
the  forty-first  section  of  that  law,  tliough  the  intention  is  inaptly 
expressed;  and  if  an  exemption  from  further  legislative  contix>l 
had  been  originally  acquired  by  the  company,  it  ceased  when  the 
amendment  to  the  charter  was  obtained."'  If  such  is  the  effect  oi' 
a  mere  amendment,  surely  a  consolidation  of  two  companies  into 
one,  as  was  had  here,  thereby  creating  an  entirely  new  company 


^d  by  Google 


TAXAHOH — CONSTITUTIONAL   LAW.  467 

and  destroying  the  otliers,  (Shields  v.  Oliio,  95  U,  S.  319,)  would 
bring  tbe  new  company  under  the  legislative  control  of  the  act  of 
1841,  whatever  may  have  been  the  vested  riglits  of  the  previous 
companies.  It  is  perfectly  clear,  then,  that  the  appellant  company 
'Caaaot  saccessfally  claim  exemption  from  legislative  control  by 
virtae  of  any  rights  dei'ived  from  its  charter  ;  nor  can  it  deny  tiiut 
the  general  assembly  has  general  power  to' amend,  alter,  or  repeitl 
eaid  charter,  :i8  provided  in  section  41  of  the  act  of  1841,  and  in 
article  12,  §  1,  Const,  1868.  Tiiis  was  the  contract  under  which 
said  company  was  created,  and  it  is  bound  thereby.  In  fact,  the 
rights  of  all  corporations  are  founded  in  contract,  whicii  must  be 
construed  and  enforced  as  all  other  contracts,  to  wit,  according  to 
the  intent  of  thu  parties.  It  was  upon  this  theory  that  Che  great 
Dartmouth  Collei;^  case  was  decided.  There  being  no  reservation 
of  power  applicable  to  that  case,  either  in  the  charter  itself,  or  in 
any  general  law  upon  the  subject,  the  court  was  compelled  to  hold 
that  the  rights  of  the  college,  as  specified  in  the  charter,  were  niui- 
ters  of  contract,  and  were  therefore  inviolate,  and  could  not  be  as- 
sailed or  impaired  in  any  way  by  subsequent  legislation.  It  has 
been  upon  this  tiieory,  too,  that  many  cases  have  since  decided 
that  where  a  corporation  accepts  a  charter  under  a  general  law,  or 
nnder  a  provision  of  the  constitution  of  the  State  reserving  con- 
trol over  all  corporations  created  therein,  or  under  a  special  pro- 
vision of  the  charter  itself  to  that  efliect,  it  ia  subject  to  such  con- 
trol, and  may  be  amended  and  altered  as  in  the  judgment  of  the 
gmeral  assembly  the  public  interests  may  demand.  See  Black, 
oust.  Proliib.  §§  33,  34,  et  seq.,  and  the  cases  there  cited.  And 
it  was  upon  this  theory  also  that  the  recent  ease  of  Railroad  Co.  v. 
Gibbes,  cited  ^o«(,  was  decided,  in  which  the  constitutionality  of 
the  act  now  under  consideration  was  sustained  as  to  said  company  ; 
this  court  holding  that  said  company,  having  organized  since  said 
act  was  passed,  had  thereby  contracted  with  reference  thereto,  and 
was  bound  by  its  provisions  as  a  part  of  the  act  of  incorporation. 
Ami  it  is  upon  tliis  theory  that  the  appellant  here  must  be  held 
bound.  In  fact,  we  can  see  little  or  no  difference  in  the  principle 
which  controlled  tlie  court  in  that  ease,  and  the  one  which  mustl)e 
applied  here.  It  is  true  that  the  Columbia  &  Greenville  E.  Co, 
accepted  its  charter  after  the  general  railroad  law  of  1878  had  beeu 
enacted,  and  thereby  incorporated  its  provisions  into  its  charter  as 
a  part  and  parcel  thereof;  but  what  is  the  difference  in  prin- 
ciple in  accepting  a  charter  with  certain  stipnlations  therein,  and 
in  accepting  one  with  a  consent  and  an  agreement  tliat  the  legisla- 
ture grantmg  Baid  charter  may  insert  such  stipulations  afterwards, 
•  if  ia  Its  discretion  it  sees  proper  to  do  so  1  They  both  rest  upon 
contract,  and  both  may  be  enforced  under  the  general  law  of  con- 
tracts. 

According  to  this  view,  if  the  act  complained  of,  and  which  has 


^d  by  Google 


468       OHAELOTTE,    COLUMBIA,    ETC.,    K.    CO.   e. 

imposed  a  liability  tipou  the  appellant  to  pay  ite  proportion  of  the 
AcToonuoiED  railroad  commiBei oner's  ealary,  is  a  legitimate  nmend- 
"ora'^lCT^  ment  under  the  act  of  1841  and  tlie  conetitotion,  then 
iMi uiD  TiLD.  jt  (aji  make  no  difference  what  ij  may  be  called, — 
■whetber  a  tax  for  revenue,  a  iwHce  legnlation,  or  a  license  fee. 
Whatever  it  may  be,  the  company  has  cuiitr'ucted  to  pay  it,  and  if 
it  claims  the  privileges  and  rights  of  its  charter,  it  ninst  take  them 
with  the  burdens  imposed.  It  cannot  enjoy  the  one  and  repudiate 
the  other.  So  that  it  follows  that  the  only  question  in  tlie  case  is, 
lias  the  general  a88embly,in  reference  to  ilie  appellant,  transcended 
its  power  to  alter,  amend,  and  repeal  the  charters  of  corporations, 
reserved  in  tliES  constitution  and  the  act  of  1841,  (section  1361,  Gtin. 
St,)1  There  is  no  donbt  bnt  that  the  appellant  received  its  exist- 
ence with  full  knowledge  that  this  reserved  power  bung  over  it, — 
a  power  which,  at  leaat  so  far  as  the  terms  of  the  reservation  are 
concerned,  was  unlimited  as  to  alteration,  amendment,  and  repeal. 
And  the  question  now  is,  not  whether  such  power  exists,  bnt 
whether  the  act  in  qnes^ion  has  gone  beyond  it.  We  think  this 
has  been  settled  in  the  recent  case  of  Eailroad  Co.  v.  Gibbes,  cited 
post.  There  the  same  act  was  in  controversy,  and  the  same  ques- 
tion raised,  and  based  very  ninch  upon  tlie  same  ground.  The 
conrtheld,  in  substance,  that  the  act  was  a  part  of  the  cliarter,  in- 
asmuch as  the  charter  was  granted  and  accepted  after  the  passage 
of  the  act.  If,  then,  the  Tegislatnre  could  incorporate  into  the 
charter  the  provisions  of  the  act  imposing  the  liability  complained 
of  at  the  beginning,  without  violating  the  sections  of  the  constitQ- 
tion  relied  on  here  as  to  tasation,  etc.,  why  could  it  not  do  so  after 
the  organization  of  tlie  company  as  well ! — tlie  reservation  of 
power  to  amend,  etc.,  having  prevented  the  vesting  of  right,  be- 
yond the  reach  of  snch  amendment.  The  ground  upon  which  we 
held  that  this  could  be  done  in  the  Greenville  &  Columbia  Case, 
4  Kich.  89,  was  the  consent  of  the  company,  tliereby  waiving  all 
objection,  constitutional  or  otherwise.  So,  here,  the  appellant 
contracted  to  take  its  existence  under  an  unlimited  power  in  the 
legislature  to  alter,  amend,  and  repeal,  and  it  is  too  late  now  to- 
complain.  Consensus  facit  jus.  It  may  be  said,  however,  that 
this  consent  was  given  under  the  protection  of  t)ie  constitutional 
provisions  invoked,  and  therefore  it  was  never  understood  or 
agreed  that  these  guaranties  of  the  constitution,  as  to  the  riglita 
mentioned,  should  be  violated,  bnt  that  this  reserved  power  of 
amendment  referred  to  the  ordinary  amendments,  etc.,  snch  as 
would  not  affect  the  substantial  righte  conferred.  The  power  re- 
served is  very  broad,  according  to  the  terms  of  the  act.  It  covers 
the  whole  subject, — "amendment,  alteration,  and  repeal," — and 
there  certainly  is  no  limitation  in  the  language  used.  Nor  do  we 
know  where  to  fix  the  boundary,  except  it  sliould  not  go  beyond 
the  ends  to  be  accomplished  or  intended  to  be  subserved  by  the 


^d  by  Google 


TAXATION — CONSTITUTIONAL   LAW.       .  469 

'  resei'vation,  which  do  doubt  was  regnl&tion,  control,  and  enpw- 
vieioD,  to  the  end  that  public  intereste  might  be  protected,  ae  well 
as  that  of  the  coi  porations.  We  do  not  see  that  the  act  in  quee- 
tiou  transcenda  tiiie  boundary.  On  the  contrary,  it  seems  to  be 
within  it.  The  cunstituiioniil  gnaraiities  invoked  were,  primarily 
at  least,  for  the  protuctiou  of  iiaciiral  citizens, — those  who  h.id 
rights  before  tlie  coiiGtitutioti  was  adopted,  over  and  above  it,  and 
for  the  protection  of  which  goveninieiit  was  institnted ;  and  the 
baildera  of  the  government,  fearing  to  give  it  unlimited  power,  in- 
serted in  the  constitntion,  the  organic  law  of  the  government,  cer- 
tain guaranties  m  a  bill  of  rijrbts. 

A  corporation,  however;  differs  in  many  respects  from  a  natural 
eitizen.  It  has  no  natural  existence  or  natural  riglits.  It  is  a 
creature  after  govermneiit,  and  by  tiie  act  of  government.  It  has 
life,  if  life  at  all,  as  a  matter  of  grace,  and  can  demand  nothing. 
It  is  emphatically  clay  in  the  hands  of  the  potter,  and  most  take 
its  life  at  the  will  of  the  government,  or  not  at  all.  "Hath  not 
tlie  potter  piower  over  the  clay )"  Besides,  it  can  protect  itself,  if 
it  sees  proper,  by  simply  refusing  to  enter  into  the  contract  pro- 
posed, or,  after  having  once  accepted,  by  throwing  up  its  charter, 
if  the  subsequent  burden  imposed  proves  too  onerous. 

From  our  view  of  this  eaae,  it  is  wholly  unnecessary  to  follow 
the  counsel  into  their  able  and  interesting  argument  on  the  sub- 
jects of  taxation,  police  regnlatione,  and  licenses,  because,  whether 
this  assessment  on  the  appellant  is  made  and  collected  as  the  one 
or  the  other,  it  is  yet  made  because  the  appellant  has  consented, 
atid  contracted  to  pay  it,  in  consideration  of  life  and  separate  ex- 
istence, and  large  privileges  granted ;  and  if  it  claims  these,  it 
innsc  submit  to  and  abide  the  contract  in  its  entirety. 

But  conceding  that  a  corporation  has  the  same  right  to  invoke 
the  sections  of  the  constitution  referred  to  as  a  natu- 
ral person  would  have,  and  to  the  same  extent,  does  louh  txavn- 
the  act  in  question,  under  that  view,  violate  said  sec- 
tions? These  sections  are  found  in  article  1,  §  36,  and  article  9, 
%  1.  The  first  declares  that  taxation  upon  property  shall  be  ad 
valorem,  and  the  second  that  it  shall  be  niiifonn.  Docs  the  act 
impose  a  tax  on  property,  and  is  it  objectionable  because  not 
"  uniform  "I  It  is  dearlv  not  a  tax  on  property  assessed  according 
to  its  value.  It  is  a  declaration,  in  substance,  by  the  legislature 
that  railroad  companies  may  pursue  their  business  upon  condition 
that  they  shall  pay  each  a  proportion  of  the  salary  of  the  railroad 
commissioners,  the  proportion  being  fixed  by  a  uniform  rule 
applied  to  each.  It,  is  tiierefore  more  in  the  nature  of  a  license 
fee.  It  is  true  that  the  amount  collected  is  to  go  into  the  public 
treasury,  and  it  is  collected  as  a  tax  ;  but  it  is  intended  to  reim- 
burse tlio  Stiite  for  these  salaries  paid  by  tlie  State  to  the  commis- 
sionei'd,  who  are,  to  some  extent,  ofiicials  of  said  companies,  or  at 


^d  by  Google 


4TO       OHAELOTTE,    COLUMBIA,    rrc,    R.    CO.   v.    GIBBB8. 

least  whose  daties  appertain  to  said  companies,  and  not  tu  the 
general  pnblic,  and  iftlierefore  may  be  properly  styled  a  "  license 
tax,"  collected  and  appropriated  for  tlie  proper  regulation  and 
benefit  of  tiie  corporations  paying  it.  And  being  asseBsed  upon 
all  railroad  corporations  alike,  it  is  "uniform,"  in  accordance  with 
the  true  meaning  of  the  constitution. 

Bnt  can  a  tax  be  imposed  and  collected  other  than  npoii  prop- 
erty, and  according  to  its  value?  Is  article  1,  §  Z&, supra, exmas- 
live  npon  this  subject?  This  question  was  fully  ana  thoroughly 
examined  and  determined  in  btate  v.  Hayne,  4  S.  C,  403,  the' 
court  holding,  after  a  most  elaborate  i-eview  and  discussion  of  the 
whole  matter  in  all  its  phases,  that  this  section  was  not  exhaustive 
as  to  the  powers  of  the  general  assembly  on  the  subject  of  taxa- 
tion; and  while,  when  a  tax  is  imposed  on  property,  vhich  it  is 
admitted  is  the  general  subject-matter  for  taxation,  it  must  be 
assessed  upon  the  value  of  the  property,  and  not  otherwise,  yet 
that  the  State  was  not  limited  to  propeity  as  the  only  basis  of  tax- 
ation ;  and  in  that  case  a  tax  on  the  profession  of  law  id  the  shape 
of  a  hcensc  fee  was  held  constitutional. 

It  is  the  judgment  of  this  court  that  the  judgment  of  the  circuit 
court  be  afiirmed. 

McQowAN,  J. — r  concur  in  the  result,  and  hope  to  be  able  ti> 
expi'esB  my  views  in  a  separate  opinion,  but  will  not  now  delay 
the  judgment. 

MoIvBH,  J.  {dig8enting).—Beiii^  unable  to  concur  in  the  con- 
clusion readied  by  the  majority  of  the  court,  I  propose  to  indicate, 
as  briefly  as  pi-acticable,  without  undertaking  any  elaborate  discus- 
sion, some  of  the  reasons  which  forbid  such  concurrence. 

In  the  first  place,  it  will  be  necessary  to  consider  whetlier  the 
question  involved  in  this  case  has  been  conclnded  by  the  decision 
of  this  court  in  the  recent  case  of  liailroad  Co.  v.  Gibbes,  24  S, 
C.  60;  for,  althoui^h  I  .did  not  concur  in  the  coiichision  there 
reached,  yet  that  decision  must  and  should  be  regarded  as  an  au- 
thoritative decision  of  the  point  there  involved,  entitled  to  be 
i-espected  and  obeyed  by  every  one,  and  I  certaiuiy  would  readily 
and  cheerfully  yield  to  its  authority.  It  does  not  seem  to  me, 
however,  that  the  question  now  presented  was  decided  by  thai 
case.  On  the  contrary,  as  was  said  by  the  court  in  dismissing  the 
jwtitiou  for  rehearing,  "  the  question  was  necessarily  limited  to 
the  corporation  making  it,"  and  the  court  expressly  declined, 
although  urged  so  to  do,  to  consider  or  determine  the  general 
qiiL'stion  whciher  the  forty-first  section  of  the  act  of  1882,  (17  St. 
817,)  now  incorporated  in  the  General  Statutes  as  section  1453, 
was  unconstitutional,  and  confined  their  decis-iun,  iti  terms,  to  the 
question  whether  the  Columbia  &  Greenville  H.  Co.,  which,  it  was 


^d  by  Google 


TAXATION — C0K8TITUTI0NAL  LAW,  471 

aaeiimed,  had  accepted  its  charter  subsequent  to  the  passage  of  tlic 
original  act,  I'equiriiig  railroad  companiee  to  pay  the  expenses  of 
the  railroad  eommisaion,  could  claim  such  act  to  be  unconstitu- 
tional. As  I  understand  it,  the  decision  in  that  case  was  rested 
solely  upon  the  ground  that,  inasmuch  as  the  corporarion  there 
concerned  had  received  its  charter  subsequent  to  the  passage  of 

,  the  act  of  1878,  (erroneously,  probably  through  a  clerical  error  or 
inisprint,  cited  in  the  opinion  as  the  act  of  1879,)  it  must  be  re- 
•r^irded  as  having  accepted  the  terms  of  thac  act  as  a  part  of  its 
charter,  and  could  not,  therefore,  repudiate  it  as  unconstitutional. 
This  as  it  seems,  to  me,  rested  upon  an  unfounded  assumption, 
inasmuch  as  the  act  of  1878,  by  which  railroad  corporations  had 
been  originally  required  to  pay  the  expenses  of  tlie  railroad  com- 
mission, liad  been  expressly  repealed  by  the  act  of  1882,  (17  St. 
841,)  and  an  entirely  new  and  different  provision  enacted,  so  tliat 
it  was  a  mistake  to  assnme  that  tiie  exaction  there  complained  of 
was  made  under  an  act  which  was  spread  upon  tlie  statute  book  at 
the  time  the  company  received  its  cnarter.  For  assuming,  what  I 
liave  no  doubt  is  the  fact,  that  the  company  was  chartered  in  1880, 
the  exaction  or  tax  there  complained  of,  imposed  by  the  act  of 
1884,  could  nof  have  been  made  by  virtue  of  the  act  of  1878, 
which  had  then  been  repealed,  but  must  necessanly  have  liceti 
made  by  virtue  of  the  act  of  1882,  which  was  not  spread  upon  ilie 
statute  book  at  the  time  the  coiopany  received  its  charter  in  18tS0. 
But,  in  addition  to  this,  the  provisions  of  the  act  of  1878  differed 
materially  from  those  of  the  act  of  1882,  now  incorporated  as  K'C- 
tion  1453  of  tiie  General  Statutes.  By  the  former,  this  exaction 
was  not  spoken  of  as  a  tax.  and  was  not  collectiibie  as  such,  but 
could  only  be  collected  by  suit  in  the  court  of  common  pleas  in 
tiie  name  of  the  comptroller  general  for  the  benefit  of  the  i-aihoa^ 
commission ;  whereas,  in  the  latter,  it  was  collectable  "  in  the 
manner  provided  by  the  law  for  the  collection  of  taxes  from  such 
corporations,  and  sliall  be  paid  by  the  said  county  treasurers,  as  col- 
lected, into  the  treasury  of  the  State,  in  like  manner  as  other  taxes 
collected  by  them  for  the  State."  So  that  the  law  which  was  on 
the  statute  book  at  the  time  the  Columbia  &  Greenville  R.  Co.  re- 
ceived its  charter  purported  to  require  all  railroad  corporations  to 
pay  a  proportionate  part  of  the  expenses  of  tlie  railroad  commission, 
and  made  tliem  liable  to  an  action  at  law  in  case  of  their  refusal 
so  to  do ;  but  this  law  having  been  snitsequently  repealed,  and  an- 
other enacted  in  its  place,  subsequent  to  the  granting  of  the  charter 
to  that  company,'  a  tax,  as  I  understand  it,  was  imposed  upon  all 
railroad  compiuiics  to  an  amount  sufticient  to  defray  the  expenses 
of  the  railroad  commission,  which  did  not  then,  and  does  not  now, 
seem  to  me  to  be  within  the  limitations  of  the  taxing  power  as 
prescribed  by  tlie  constitution.     Hence,  I  did  not  then,  and  cannot 

-  now,  concur  in  the  conclusion  reached  by  a  majoi'ity  of  the  court. 


^d  by  Google 


473        OHARLOTTE  COLUMBIA,   ITTO.,    B.    CO.   V.   6IBBKR. 

ThoB,  while,  according  to  my  view,  tbo  general  qnestion  now  pre- 
sented was  really  involved  in  tlie  former  caee,  yet  the  majority 
seemed  to  think  otherwise,  and  rested  their  conclneion  upon  an- 
other, and,  as  I  think,  untenable,  ground,  to  wit,  that  the  corpo- 
ration there  concerned,  having  accepted  its  chaiter  with  this  provi- 
sion requiring  ail  railroad  companies  to  pay  prop)rtionate  parts  of 
the  expenses  of  tlie  raih^ad  commission,  conid  not  afterwardst 
resist  such  requirement  upon  any  ground. 

Now,  wiiile  it  is  quite  true  that  the  legislatnre  may,  when  appli- 
cation is  tuade  to  it  for  a  charter,  either  grant  or  refuse  such  appli- 
cation, as  may  be  deemed  best  for  the  public  welfare,  yet  it  does 
not  follow  that  they  may  impose  any  conditions,  or  insert  in  snch 

Erant  any  privileges  or  immunities,  that  they  may  see  fit  to  do. 
ike  all  other  departments  of  the  government,  the  legislature  is 
confined  by  the  constitution  to  certain  limits,  and  tlierefore  they 
can  only  impose  such  conditions,  and  confer  sucli  privileges,  as 
fall  within  those  limits.  They  cannot  confer  upon  a  corporation, 
except  such  as  are  specified  in  the  constitution,  the  privilege  of 
total  exemption  from  taxation ;  nor  can  they  impose,  as  a  condition 
of  the  charter,  the  requirement  that  a  corporation  shall  pay  taxes 
on  its  property  at  double  the  rate  imposed  upon  property  held  by 
others  ;  for,  in  the  one  case  as  well  as  in  the  other,  the  legislature 
would  transcend  the  limits  prescribed  to  it  by  the  constitution. 

The  idea  is  thrown  out  in  the  opinion  of  the  mnjority,  though 
I  do  not  undei'stand  the  point  to  be  decided,  that  a  corporation, 
being  the  mere  creatnre  of  government,  deiiving  its  existence 
from,  and  holding  its  rights  and  privileges  (except  where  protected 
by  contract)  at  the  will  of  the  legislature,  cannot  invoke  the  pro- 
tection of  any  constitutional  guaranties  which  were  inserted  in 
the  constitution  for  the  protection  of  natural  citizens,  and  were 
not  designed  to  afford  any  protection  to  mei-e  artificial  persons, 
like  corporations.  If  this  be  so,  it  is  a  little  singular  that  such  a 
doctrine,  so  far  as  I  have  been  able  to  discover,  has  never  been  ad- 
vanced, much  less  decided,  in  any  case.  On  tlie  contrary,  the  re- 
verse has  been  necessarily  assumed  in  numerous  cases,  especially 
iu  the  supreme  court  of  tiie  United  States.  The  many  cases  in 
which  corporations  have  successfuily  invoked  tiie  protection  of 
the  contract  clause  of  tlj^  constitution  could  only  have  been  de- 
cided upon  the  assumption  that  corporations,  as  well  as  natuni) 
persons,  were  entitled  to  the  protection  afforded  by  that  coiistitn- 
tional  guaranty.  So  the  many  cases  iu  which  questions  of  the 
jurisdiction  of  the  tJnited  States  courts,  depending  upon  citizen- 
ship  of  tlie  parties,  have  been  decided,  all  rest  upon  the  idea  that 
corporations,  just  like  natural  persons,  may  enfoixte  their  contracts 
or  rights  of  propertyjand  are  entitled  to  the  same  protection  un- 
der tlie  constitution  and  laws. 

In  U.  S,  V.  Amedy,  11  Wheat  392,  the  prisoner  was  indicted 


^d  by  Google 


TAXATION — CONSTITUl'lONAL   LAW.  473 

for  destroving  a  vessel  vrith  intent  to  prejudice  the  nnderwritcre, 
who,  in  tfiat  case,  proved  to  be  a  corporation ;  and  it  was  con- 
tended that  a  corporation  was  not  a  pei-soa  within  the  meaning  of 
the  act  of  congress;  but  tlie  court  held  otherwise,  Mr.  Justice 
Story  saying:  "That  coi-poratioiis  are,  in  law,  for  civil  pmpoeee, 
deemed  persons,  is  unquestionable.  And  the  citation  from  2  Inst. 
736,  establishes  that  they  are  so  deemed  within  the  purview  of 
penal  statntes."  The  same  doctrine  is  full}'  recognized  in  Beaston 
V.  Bank,  12  Pet.  102.  and  Bank  v.  Earle,  13  Pet.  519. 

In  Santa  Clara  Co.  v.  Kailioad  Co.,  118  U.  S.  394,  the  court 
seemed  to  be  so  well  satisfied  upon  the  point  that  they  declined  to 
hear  argument  on  the  question  whether  the  provision  in  the  four- 
teenth amendment  to  tlie  constitution  of  the  United  States,  wliich 
forbids  a  State  from  denying  to  any  person  within  its  jurisdiction 
tlie  equal  protection  of  the  laws,  applies  to  corporations;  the  chief 
justice  saving; :  "  We  ai'e  all  of  opinion  that  it  does." 

It  seeiiie  to  me  clear,  therefore,  that  the  plaintiff  has  the  right 
to  invoke  the  protection  of  the  provisions  of  the  constitution  as  if 
it  were  a  natural  person,  and  the  question  is  whether  section  1453 
of  the  Genera!  Statutes,  purporting  to  impose  upon  this  company 
the  burden  of  paying  a  proportionate  pnrt  of  the  expenses  of  tlie 
railroad  commission,  is  in  violation  of  any  of  the  provisions  of  the 
constitution  of  this  State  or  that  of  tlie  United  States. 

I  shall  assume,  for  the  purpose  of  this  discussion,  that,  by  rea- 
eoD  of  the  consolidation  of  the  two  companies  under  the  act  of 
1869,  the  plaintiff  company  subjected  its  chai'ter  "  to  amendment, 
alteration,  or  repeal  by  tlie  general  assembly,"  as  provided  by  sec- 
tion 1361  of  the  General  Statutes,  though  I  do  not  understand 
that  such  would  be  the  result  under  the  provisions  of  the  constitu- 
tion. The  provisious  relied  upon  for  that  purpose  ai-e  sections  1 
and  2  of  article  f2  of  the  constitution  ;  bnt  section  1  applies  only 
to  corporations  "formed  under  general  laws,"  and  this  corporation 
was  not  so  formed,  but  by  special  act ;  and  section  2  only  declares 
,  that  the  property  of  corporations  shall  be  subject  to  taxation,  with- 
out any  reservation  of  the  light  to  amend,  alter,  or  repeal  their 
ehartera. 

Assuming,  then,  that  the  legislature  has  the  riglit  to  tax  this 
■company,  and  to  amend,  alter,  or  repeal  its  charter,  the  inquiry  is 
whether  the  exaction  here  complained  of  is  such  a  tax  as  the  legis- 
lature has  a  right,  under  the  limitations  of  the  constitution,  to  im- 
pose, or  is  the  section  (1453  Gen.  St.)  such  an  amendment,  altera- 
tion, or  repeal  of  the  charter  of  the  plaintiff  as  the  legislature  has 
a  right  to  make.  The  manifest  object  of  the  exaction  complained 
of  is  to  provide  a  fund  for  the  payment  of  tlie  salaries  and  ex- 

?}iises  of  certain  officers  and  agencies  of  tlie  State  government, 
he  salaries  of  the  railroad   commissioners  are  fixed  by  law,  and 
are  required  "  to  be  paid  from  the  treasury  of  tiie  State  in  [the} 


^dbvGoO^lc 


474       CHARLOTTE,    COLUMBIA,    ETC.,    K.   CO.   V.    GIBBES. 

manner  provided  by  law  for  tlie  salary  of  otber  State  officeif,"  and 
tlioy  are  required  to  "take  the  oath  of  office  provided  by  the  con- 
Btitution,  and  the  oath  against  duelling," — eectioit  1451  of  the 
General  Statates,  as  amended  by  the  act  of  twentj-iirst  December, 
1882,  (18  St.  13), — and  tliu  proportion  of  these  expenses  required 
of  each  railroad  corporation  is  required  to  be  asseEfied  by  the 
comptroller  general  oh  each  of  such  corporations,  and  the  same 
"shall  be  collected  by  the  several  county  ti-easurers,  in  the  niannei- 
l>rovided  by  law  for  the  collection  of  taxes  from  such  corporationB, 
and  shall  be  paid  by  the  said  county  treasurers,  as  collected,  into 
the  treasury  of  the  State,  in  like  manner  as  other  taxes  collected  by 
them  for  tiie  State."  The  exaction  is  therefore  made  for  the  s:ime 
purpose  as  other  taxes;  it  is  collected  in  the  same  manner,  and  is 
disposed  of  in  like  manner,  as  other  taxes.  It  is  therefore  a  part 
of  tlie  revenue  of  the  State,  just  like  any  other  taxes;  so  desig- 
oated  and  so  treated  by  the  legislature  itself.  If  this  is  not  so, 
then  the  exaction  plainly  violates  section  23  of  article  I  of  the 
constitution,  which  declares :  "  Private  property  shall  not  be  tiiken 
or  applied  for  public  use,  or  for  the  use  of  corporations,  or  for 
private  use,  without  the  consent  of  the  owner,  or  a  just  compen- 
sation being  made  therefor." 

Regarding  it,  then,  as  a  tax,  the  next  inquiry  is,  what  kind  of  a 
tax  is  it  J  Is  it  a  license  tax,  or  a  tax  on  an  avocation,  or  rather  on 
the  privilege  of  exercising  an  avocation,  or  is  it  a  tax  on  prop- 
erty ?  It  does  not  even  purport  to  be  a  license  tax,  and  has  none 
of  the  characteristica  of  such  a  tax.  A  license  tax  seems,  neces- 
sarily, to  invoke  the  idea  that,  without  tiie  payment  of  the  tax 
thus  imposed,  and  the  procurement  of  the  required  license,  it 
would  be  unlawfnl  to  pui-sne  the  avocation  or  carry  on  the  busi- 
ness subjected  to  such  a  tax.  It  is  the  porchage  of  the  right  to 
carry  on  such  a  business.  But  there  is  nothing  in  the  act  now  un- 
der consideration  which,  in  the  remotest  degree,  indicates  that 
euch  was  the  intention  of  the  legislature;  and  hence  I  do  not  see 
how  it  is  possible  to  regard  the  exaction  complained  of  aa  a  license 
tax.  But  even  if  it  could  be  regarded  as  a  license  tax,  there 
would  still  be  a  question  as  to  the  constitutionality  of  the  act  by 
which  it  is  impoticd ;  for  while  it  lias  been  held  ici  several  cases 
(State  V.  Haync,  4  S.  C.  403  ;  State  v.  Columbia,  6  S.  C.  1 ;  and 
Charleston  v.  Oliver,  16  S.  0,  47)  that  a  tax  on  professions  or  occu- 
pations is  not  forbidden  hy  the  constitution  oi  the  State,  it  does 
not  by  any  means  follow  that  the  legislature  has  the  right  to  single 
out  one  particular  avocation,  or  rather,  as  in  tins  case,  one 
branch  of  an  avoention  (for  the  avocation  of  the  plaintifi  com- 
pany is  that  of  a  common  carrier,  and  the  exaction  is  not  required 
from  all  common  carriers),  leaving  all  other  avocations  and  profes- 
fioTiB  free  from  the  burden  of  such  exaction.  The  fundamental 
principle  running  throngli  all  the  provisions  of  the  constitution  in 


^d  by  Google 


TAX4.TI0N — CONBTITUTIONAL   LAW.  475 

reference  to  taxation  ia  that  of  unifontiity  and  equality,  and  this 
principle  cannot  be  disregarded  in  the  imposition  of  taxes  of  any 
Kind.  Section  1  of  article  9  provides  that  "  the  general  assembly 
shall  provide  by  law  for  a  uniform  and  eqiml  rate  of  assessment 
and  taxation,  and  shall  prescribe  snch  regulatioitB  as  shall  secure  a 
jnst  valuation  for  taxation  of  alt  property,"  etc.  Now,  these 
words  advance  two  ideas,  as  is  well  said  by  Willard,  J.,  in  Stute 
V.  Hayne,  supra :  "  First,  equity"  in  al!  taxation  and  assessment ; 
and,  second,  valuation,  as  the  means  of  securing  such  equality,  in 
the  case  of  taxes  on  property.  The  first  clause,  namely,  'the 
general  assembly  shall  provide  by  law  for  a  uniform  and  eqiud  rate 
of  assessment  and  taxation,'  is  not,  by  its  terms,  applicable  alone 
as  peculiar  to  taxes  on  property.  It  does  not  use  the  word  '  value,* 
which  is  aigniiicant  to  taxation  aa  applied  to  property.  Tliat  ex- 
pression occurs  in  tlie  second  clause  in  connection  with  the  subject 
to  wliicli  it  belongs,  namely,  taxation  of  property.  These  clauses. 
are  connected  by  the  conjunction  'and.'  Accordingly,  their  gram- 
matical relations  admit  of  their  bearing  [having?]  independent 
force  and  effect,  if  the  nature  of  the  subject-matter  admits  of  it." 
In  other  words,  the  language  above  quoted  contains  two  separate 
and  independent  mandates  to  the  legislature:  Firet.  That  they 
shall  provide  by  law  for  a  uniform  and  eqnal  rate  of  assessment 
and  taxation  of  all  kinds.  Second.  That  they  shall  prescribe  snch 
regulations  as  shall  secnre  a  just  valuation  of  all  property;  and 
in  section  33  of  article  2  there  is  another  mandate,  reqniririg- 
that  "all  taxes  upon  property,  real  or  personal,  shall  be  laid  upon 
the  actual  value  of  tlie  property  taxed,  as  the  same  shall  be  as- 
certained by  an  assessment  made  for  the  purpose  of  laying  snch 
tax."  While,  therefore,  the  legislature  may  impose  taxes  other 
than  those  on  property,  they  can  only  do  so  by  a  uniform  and 
equal  rate,  which,  in  case  of  property,  is  to  be  determined  by  the 
actual  value  thereof,  aa  ascertained  by  an  assessment  made  for  that 
purpose.  But  as  it  seems  to  me  clear  that  the  exaction  here  com- 
plained of  cannot,  in  any  sense,  be  regarded  as  a  license  tax,  I  do 
not  deem  it  necessary  to  pnrsne  this  branch  of  the  discnssion. 

If,  then,  this  exactness  must  be  regarded  as  a  tax  upon  the  prop- 
erty of  the  plaintiff  corporation,  then  it  is  quite  clear  that  it  is  in 
violation  of  the  provisions  of  the  constitution  for  two  reasons : 
First,  because  it  is  not  laid  upon  the  value  of  the  property,  nn  as- 
certiiined  by  an  appraisement  made  for  the  purpose  (Snilo  v.  Rjul- 
road  Corps.,  4  S.  C.  376);  and,  second,  it  would  he  a  double  tax 
upon  the  same  property  ;  for  it  must  be  asgumed,  in  the  absence 
of  any  evidence  to  the  contrary,  that  the  ofli<'ere  charged  with  the 
duty  of  collecting  the  ordinary  taxes  from  this  company  have  per- 
formed that  duty,  and  hence  to  require  such  company  to  pay  this 
additional  tax  upon  its  property  would  be  so  j>lainly  in  violation 
of  the  provisions  of  the  i^onstituiion  as  to  need  no  further  renntrk. 


^d  by  Google 


476       CHARLOTTE,    COLUMBIA,   ETC.,    It.    CO,    V.    OIBBES. 

It  ma^  be  contended,  Iiowevcr,  tliat  it  is  not  a  tax  upon  tlie  tan- 
gible propert;  of  tlie  companv.  encli  aa  Ima  already  been  sabjected 
to  the  ordinary  tax,  bnt  is  a  tax  upon  tlie  francliiEea  of  tlie  corpora* 
tion,  the  value  of  which  is  meiiSDred  by  the  income  derived  from 
the  exercise  of  sucli  franchises.  If  certain  franclilBes  of  corpoiu- 
tions  are  pro])erty,  as  hae  been  held  in  Society  for  Savings  v. 
Coite,  6  Wall.  594 ;  Provident  Inst.  v.  MasKichueetts,  6  Wall.  611 ; 
and  Hamilton  Co.  v.  Massaclmsette,  6  Wall.  632 ;  and  if  they  are  tbe 
subject  of  mortgage  :ind  sale,  as  held  in  Kuilroad  Co.  v.  Delumore. 
114  U.  S.  501,  then  I  see  no  reason  why  such  fi'ancliities  may  nut 
be  taxed  like  all  other  property,  provided  their  actual  value  Jisis 
been  ascertained  by  an  assessment  made  for  that  purpose,  as  re- 
<[nired  by  the  constitution.  But  is  this  a  tax  upon  the  francliisea 
of  this  corpoi-atiuii  ?  It  does  not  purport  so  to  be,  and  if  it  did 
the  tax  has  not  been  laid  upon  tlieaetual  value  of  the  property  pi-o- 
posed  lo  be  taxed,  as  ascertained  by  an  assessment  made  for  that 
|)urpose, — the  f  rancliises  of  the  corporation ;  bnt  it  is  proportioned 
to  tlio  gross  income  of  the  company,  which  is  miinifestiy  dne  Ui 
tlie  tangible  property  used  in  pi-oducing  such  income,  as  well  as 
to  tbe  mtangible  property,  tlie  franchises  of  tiie  corporation;  for 
it  is  quite  certain  that  the  franchises,  without  the  aid  of  the  tangi- 
ble property,  wbicb  has  already  been  taxed,  would  yield  no  in- 
come. Ae  was  held  in  State  v.  Railroad  Corps.,  4  S.  C.  376,  an 
act  which  requires  every  railroad  company  within  the  State  to  pay 
to  the  treasurer,  foi'  the  use  of  the  State,  a  sum  of  uiouey  deter- 
mined by  tbe  length  of  its  I'oad,  is  a  tax  npon  property,  and  is  uu- 
•constitutional  and  void,  because  not  laid  upon  tne  value  of  the 
property,  bo  it  seems  to  me  that  tbe  L-xaction  liere  complained  of 
18,  in  e^ect,  a  tax  upon  tlie  property  of  the  plaintifi  company,  and 
■inconstitntional  because  not  laid  upon  the  value  of  tlie  propeity. 
Bnt  even  regarding  this  as  a  tax  upon  tbe  fi-ancbiecs  of  this  cor- 
poration, as  contradiEtingiiiahed  from  its  tangible  property,  and 
that  tbe  value  of  such  franchises  can  be  properly  measured,  and 
■were  intended  to  be  measured,  by  the  gross  income  of  the  com- 
pany, then  it  could  only  be  reqnired  to  pay  the  same  rate  of  taxa- 
tion upon  tlie  value  of  such  property  as  is  imposed  upon  all  other 
property,  and  not  a  proportionate  part  of  the  expenses  of  certain 
officers  and  agencies  of  tlie  govcrnuient.  In  addition  to  this,  a 
tax  upon  tbe  franchises  of  one  class  of  corporations,  while  all  other 
corporations  are  not  taxed  ujxm  their  fi-ancbises,  would  violate 
that  fundamental  principle  of  uniformity  and  eqnality  required 
by  the  constitution.  If  it  should  be  said  tluit  this  is  a  tax  n)>on 
the  income  of  railroad  corporations,  and  not  apon  their  property, 
cither  tangible  or  intangible,  tJie  proposition  would  be  met  by  tlie 
eanie  objection  of  want  of  uniformity,  inasmuch  as  no  other  cor- 
porations or  persons  are  subjected  to  such  a  tax. 

Again,  it  is  contended  Chat  the  legislation  here  brought  in  qneft- 


^d  by  Google 


TAXATIUN — CONSTITUTIONAL   LAW.  47T 

Uon  can  be  defeDded  as  an  exercise  of  the  police  power.  Tlie- 
power  thus  invoked  ie,  no  donbt,  very  exteneive  and  very  liealth- 
fnl,  if  not  absolutely  necessary  to  every  well-ordered  community; 
but  its  limits  do  not  Beein  to  be  very  well  defined,  and  are,  per- 
haps, indefinable  with  accuracy  and  precision.  Bnt  I  do  not  lind 
that  it  liiiB  ever  been  regarded  as  fnrnisliing  any  warrant  for  the 
iiupositiufi  of  taxes.  I  can  undei'Stand  how  it  may  be  resorted  to 
as  a  justification  for  legislation  regulating  railroads  or  other  public 
enterprises,  which,  otiiorwise,  would  seem  to  be  an  unwarrantable 
interference  with  private  property  ;  but  I  cannot  understand  how 
it  can  authorize  the  extension  of  tlie  taxing  power  beyond  the 
limits  prescribed  by  the  constitution.  As  is  said  by  Jnd^e  Cooley, 
ill  Ilia  valuable  work  on  Constitutional  Limitations,  p.  577:  "The 
maxim,  etc  utere  tuo  ut  alienum  non  l^jedaa,  is  that  which  lies  at 
tiie  foundation  of  the  power;  and  to  whatever  enactment  affect- 
ing the  management  and  business  of  private  corporations  it  can- 
not fairly  Ije  applied,  the  power  itself  will  not  extend."  And 
again  that  eminent  author  says :  ''  Even  a  provision  in  a  corporate- 
cliarter,  empowering  the  legislature  to  alter,  modify,  or  repeal  it, 
would  not  authorize  a  subsequent  act  which,  on  pretence  of  amend- 
ment, or  of  a  police  regulation,  would  liiive  ths  effect  to  appropri- 
ate a  portion  of  tlie  corporate  property  to  the  public  use."  In 
view  of  these  principles,  it  seems  to  me  too  plain  for  argument 
that  this  legislation  cannot  be  justified  as  an  exercise  of  the  police 
power.  How  the  property  of  another  is  to  be  injured  by  the  non- 
payment, or  protected  by  the  payment,  of  the  tax  imposed  it  is- 
impossible  to  conceive.  The  payment  of  such  tax  is  not  even 
essential  to  the  existence  of  the  railroad  commission  ;  for,  as  we 
have  seen,  the  salaries  of  the  commissioners  are  paid  out  of  the 
State  treasury  just  like  those  of  other  State  otBcers,  and  whether 
this  tax  is  paid  or  uot,  they  gettlieir  salaries  all  the  same.  I  do- 
not  Bee  how  tlie  maxim,  sic  utere,  etc.,  can  '•  fairly  be  applied "'  to- 
tbe  act  under  consideration.  There-is  no  word  in  the  act  wliich 
indicates  that  its  purpose  was  to  lay  any  restraint  whatever  upon 
railroad  corporations  in  the  use  of  their  property  or  franchises, 
and  certainly  the  effect  of  it  would  not  be  to  throw  any  protection 
around  the  rights  of  persons  or  property.  It  is  simply  an  act  re- 
quiring a  particular  class  of  tax-payers  to  pay  the  entire  amount 
of  the  salariea  and  expenses  of  certain  ofiicei-s  and  agencies  of  the 
State  government,  wliich  it  has  been  deemed  necessary  to  estab- 
lish for  the  public  welfare,  which  amount  is  to  be  collected  and 
paid  into  the  State  treasury  in  the  same  manner  as  "  other  taxes." 
Finally,  it  is  urged  that  this  legislation  can  be  justified  as  an 
amendment  to  the  charter  of  the  plaintiff  company,  which  the  leg- 
islature has  reserved  the  right  to  make,  and  the  plaintiff,  having 
accepted  its  charter  with  full  knowledge  of  this  reserved  right  on  ■ 
the  part  of  the  legislature,  must  be  regarded  ae  assenting  to  and 


^d  by  Google 


478       CHABLOITI-:,    COLUMBIA,   ETC.,    K.    CO.   V.   GIBBES. 

accepting  any  amendment  of  its  charter  wliicli  the  legislature 
might  see  fit,  subsequently,  to  make,  upon  the  principle  conien»u» 
facit  jus.  Conceding  tlint,  by  virtue  of  section  1361  of  the  Gen- 
61'al  Statutes,  the  legislature  lias  reserved  the  right  to  alter,  amend, 
or  repeal  the  plaintifi'a  charter,  it  does  not  follow  that  the  legisla- 
ture lias  the  right  to  make  any  nmendment  they  niiglit  see  tit  to 
make,  regardless  of  the  restrictions  thrown  around  tlie  exemise  of 
Jegislative  power  by  the  organic  law  of  the  land ;  and  certainly  it 
would  Dot  follow  tliat,  under  the  gniee  of  an  amendment  to  tiie 
charter,  tiie  legislatnre  could  utterly  disregard  the  mandates  of  the 
constitution  in  reference  to  the  exercise  of  the  tnxing  power,  and 

fo  beyond  the  limits  prescribed  for  the  exereise  of  sucii  power. 
'ho  charter  of  a  corporation  can  only  be  amended  by  an  act  of  the 
Jegislatiire,  and  it  is  not  everything  which  assumes  the  form  of  an 
.act  of  the  general  assembly  wiiich  has  the  force  and  effect  of  an  act. 
If  it  is  in  conflict  with  any  of  the  provisions  of  the  constitution,  it 
is  not  an  act,  no  matter  what  may  be  its  form.  It  is  an  absolute 
nullity.  Hence,  whenever  the  legislature  undertakes  to  make  an 
amendment  of  the  charter  of  a  corporation  by  an  act  which  has 
not  been  passed  in  the  manner  prescribed,  or  the  terms  of  which 
ai'e  in  connict  with  some  provision  of  tlie  constitntion,  tliei-e  is  no 
amendment,  because  the  uct  purporting  to  make  such  amendment 
is'  a  nullity.  Thus,  if  the  legislatui-e  should  in  the  most  formal 
manner,  pass  an  act  declaring  that  the  charter  of  a  certain  corpora- 
tion should  be  so  amended  as  tliat  the  half  or  the  whole  of  its 
property  should  be  turned  over  to  another  corporation,  there  could 
be  no  doubt  that  such  an  act  would  be  an  absolute  nullity,  being 
in  direct  conflict,  not  only  with  the  plainest  principles  of  justice, 
but  also  with  the  express  terms  of  section  23,  art.  1,  Const,  and 
hence  there  would  be  no  amendment  of  the  charter  of  such  corpoiiu 
tion.  So,  if  section  1453  of  the  General  Statutes  could  be  re- 
garded as  a  proposed  amendment  to  the  charters  of  all  the  railroad 
corporations  in  tlie  State  whose  charters  are  subject  to  legislative 
control,  though  tliere  is  not  a  single  word  in  the  section  wTiich  in- 
dicates that  such  was  the  purpose  or  intention  of  the  legislature, 
yet  if  the  provisions  of  such  section  are  in  conflict  with  the  pi'ovie- 
iotis  of  the  organic  law,  as  I  tliink  tliey  are,  in  leference  to  the 
taxing  power,  then  the  section  is  an  absolute  nullity,  and  there  is 
no  amendment  to  the  charter  of  the  plaintifE  company. 

But  it  is  said  that  the  company,  having  iiccepted  its  charter, 
with  full  knowledge  of  the  fact  that  the  legislature  had  retained 
the  right  to  alter  and  amend  it,  must  be  regarded  as  waiving  the 
protection  of  any  constitutional  provision,  and  consenting,  in  ad- 
vance, to  any  amendment  tlic  legislature  miglit  see  fit  to  make, 
and  therefore  it  is  bound  thereby  as  matter  of  contract.  It  most 
be  remembered,  however,  that  while  the  company,  when  it  ac- 
cepted its  charter,  must  be  regarded  as  having  done  so  with  no- 


^d  by  Google 


TAXATION — VALUATION.  479 

tice  of  the  fact  that  the  legtslntarc  reserved  tlie  right  to  amend, 
yet  it,  at  the  Bame  time,  had  notice  of  tlie  several  provisions  of  the 
constitution  placing  limitatiotia  upon  the  legislative  power,  and 
therefore  it  )iad  a  right  to  assume  that  tlie  legislatare  conld  and 
would  only  exercise  the  reserved  right  to  amend,  within  the  limi- 
tations prescribed  by  the  constitution.  Hence  it  cannot  propeiiy 
he  said  that  the  corporation,  by  accepting  its  charter,  with  notice 
of  the  reserved  right  to  amend,  consented  that  the  legisiatuie 
mig^ht  make  any  amendment  to  its  charter,  but  only  snch  aa  it 
could  make  within  the  limitations  prescribed  by  the  constitution. 
It  conld  not  assume,  or  even  anticipate,  that  the  legislature  would 
violate  the  law  of  its  existence,  and  undertake  to  do  tliat  which  the 
people,  in  their  sovereign  capacity,  had  forbidden  them  from  doing, 
I  think,  therefore,  that  the  judgment  below  shotild  be  revereed, 
and  the  caee  remanded  for  a  new  trial. 


Iixmois  AiTD  8t.  Locib  B.  Ain>  Coal  Oa 


Stooket,  TreasDrer. 
iAdtanes  Oaie,  lUinoi*.     Stftmher  38,  1887.) 

OomplainaDt  Sled  a  bill  to  enjoin  the  collection  of  a  portion  of  tbe  taxes 
auessea  upon  ita  railroad  property  by  the  State  Board  of  Equalization,  ei- 
-ceeding  by  |5,000  thecoDceded  valueof  |100,000;  Hndalleging  that  all  other 
property  within  the  townships,  not  aaaessed  by  the  State  board,  ia  valued  and 
-asBesaed  by  the  town  aflseaaora  at  about  oDe-third  ita  cash  value,  aad  ia  taxed 
upon  that  baais.    Held: 

1.  That  under  \\  8  and  4  of  the  Revenue  act,  requiring  property  to  be  as- 
sessed at  its  fair  caah  value,  the  aaseaament  is  valid.  The  fact  that  the  town 
aaaeaaora  failed  to  perform  their  duty  is  no  (ground  for  asaailinent. 

a.  That  as  the  legislature  has  provided  for  no  appeal  from  the  valuation 
placed  upon  rwlroad  property  by  the  8tat«  Board  of  Equalization,  auch  val- 
utation  can  only  be  asauled  for  fraud  or  want  of  juriadiction. 

Appeal  from  circuit  court,  St.  Clair  county;  Ahob  Watts,  Jndge. 

CharlesW.  T^lomas  for  appellants. 

E.  D.  W.  Holder,  Staters  Atty.,  for  appellee. 

MoLKBT,  J. — On  the  seventh  day  of  August,  1886,  the  Illinois 
&  St.  Louis  E.  &  Coal  Co.  exhibited  ita  bill  in  the  circuit  conrt  of 
St.  Clair  county  against  Madison  T.  Stookey,  treasurer  F*cTt. 

and  ex  offioio  collector  of  said  county,  to  enjoin  him  from  collect- 
ing a  portion  of  the  taxes  of  1885,  which  haa  been  assessed  against 
the  complainant  as   assignee    of   the  Venice   &   Carondelet    R. 


^d  by  Google 


480    ILLINOIS  AND  ST.  LOHIS  E.  AlfD  COAL  CO.  V.  STOiiKEY. 

The  circuit  court  snetaiiied  a  general  demurrer  to  tlie  bill,  ami  en- 
tered an  order  dismisEiug  the  same,  to  reverse  n-liicb  tide  appeal  is 
brought. 

The  bill  sbowB  that  the  railway  in  question  lies  within  the  town- 
shipe  of  East  St,  Louis  and  of  Centerville  Station,  in  St.  Clair 
county,  and  it  is  charged  that  tbetaxee  for  the  year  1S85  are  based 
npun  an  asBeBsmcnt  of  the  road  by  tbe  State  Board  of  Eqiializaiioii 
at  a  fraction  over  its  full  cash  value,  wliLTeae  all  other  property 
witliin  these  townsbipa  not  aBsessed  by  the  State  board  was  valned 
and  asseBBed  by  the  town  asscBsors  for  the  same  year  at  about  one- 
tbii-d  its  cash  value,  and  tliat  the  eame  was  taxed  upon  that  basis. 
Such  being  tbe  facts  it  la  contended  that  the  tax,  to  the  extent  com- 
plained of,  is  violative  of  the  piovision  of  tbe  constitution  requiring 
uniformity  in  taxation  ;  and  in  support  of  thiB  view  tlie  case  of 
Bni-eau  Co.  v.  Railroad  Co.,  44  Hi.  229,  is  cited. 

Without  stopping  to  inquire  whether  tlie  constitutional  proviaion 
in  question  was  properly  applied  in  these  cases,  it  is  sumcient  to- 
pbotebtt  t*-  ^^y  '''^'i  '"  "'"'  opinion,  it  has  no  application  to  the 
F^^i^  T^  cireumstanees  of  tbe  present  case.  Ti»ere  is  no  claim, 
"™-  nor  is  there  any  ground  for  the  claim,  that  the  provis- 

ions of  the  statute  governing  assessments,  whether  made  by  town 
assessors  or  the  State  Board  of  EqnalizatioH,  are  in  conflict  with  the 
constitution.  The  statute  requires  all  pix)perty  to  bo  valued  and 
assessed  for  purposes  of  tiixation  at  its  "'  fair  cash  value."  SectioDft 
3,4,  Revenue  act.  This  requirement,  however,  is  nothing  more 
than  what  tbe  law  would  imply  without  it;  for  a  simple  nnquali- 
lied  direction  to  value  property,  by  its  very  terms  imposes  the  duty 
of  ascertaining  and  declaring  its  cash  value.  While  tbe  appellant, 
as  a  basis  for  taxation,  scheduled  Ihe  road  at  |44,880,  which  was  in- 
tended to  repi-esent  half  its  value  only,  yet  it  is  admitted  in  the  bill 
that  the  total  value  of  the  railway  was  J100,000,  being  only  $5,15l> 
less  than  tbe  valuation  placed  upon  it  by  tbe  Board  of  £quHlization. 
When  it  is  considered  that  values  rest  bo  largely  in  mere  opinion, 
about  which  men  of  equal  intelligence  and  honesty  often  inalerialiy 
differ,  the  small  difference  l>etween  the  road's  conceded  value  and 
its  fstimated  value  by  the  State  board  is  not  at  all  surprising,  and 
is  clearly  not  of  sufficient  consequence  to  justify  the  present  pro- 
ceeding. The  taxes  complained  of  were  extended  upon  this  valu- 
ation iu  strict  conformity  with  the  statute,  and  this  is  expressly  so 
declared  in  the  bill.  It  follows,  therefore,  that  ifany  wrong  has 
been  done,  it  was  by  the  town  assessors,  and  not  by  the  State  board. 
The  law  required  tbe  State  Board  of  Equalization  to  value  the  pro- 
perty at  its  fair  cash  value,  and  the  taxes  for  that  year  to  be  extended 
against  it  upon  that  valuation.  All  this  was  done  in  substantial 
conformity  with  the  requirements  of  tbe  statute,  yet  the  action  of 
the  hoard  is  assailed,  and  tbe  tax  is  in  part  sought  to  be  set  aside 
simply  because  the  town  assessors  probably  failed  to  perform  their 


^dbyGoOglc 


TAXATION— VALDATION.  481 

dntj  in  respect  to  the  aBsesetnent  of  otliei-  property  in  tlie  townships. 
The  appellant,  id  effect,  Gays  the  board  should  have  disregarded  tliis 
law  becanee  the  town  asseseoi-s  had  done  bo  in  the  assesBnient  of  the 
other  property  in  the  two  townsliips.  This  view  of  the  matter  we 
do  not  regai'd  as  sonnd. 

Valuations,  for  purposes  of  taxation,  liad  necessarily  to  be  left 
to  the  judgment  and  determination  of  some  hiim:in  tribunal.  The 
legislature,  in  ite  wisdom,  liiis  confided  this  duty  and  trust,  in  the 
cuseof  raib'ond  property  hkc  the  present,  to  the  State  Board  of  Eqnal- 
ization,  and  that  its  action  in  the  pi-emises  was  intended  to  be  tinal, 
except  where  frand  or  corruption  hne  intervened,  is  evidenced  by 
the  fact  that  no  appeal  frotn  its  determination  is  provided.  As  was 
said  in  the  late  case  of  Riiilwny  Co.  v.  People,  119  111.  182  :  "  Under 
tlte  statute  the  valuation  for  taxntion  of  the  property  here  affected 
is  committed  to  the  State  Board  of  Equalization.  No  appeal  lies  from 
its  decision  to  the  county  court  wiien  acting  on  applications  for 
judgment  for  delinquent  taxes,  or  at  any  other  time.  Its  decision 
18  jadicial  in  its  nature,  and  it  can  therefore  be  assailed  for  frand  or 
want  of  jnrisdiction  only."  To  the  same  effect  are  the  cases  of 
Spencer  v.  People,  68  111.  513;  Porter  v.  Railroad  Co.,  76  111.  561. 

The  bill  in  tliis  case  does  not  disclose  any  facts  whatever  to  sus- 
tain the  charge  of  fraud  fonnd  in  it. 

That  the  board  was  not  bound  by  the  valuation  fixed  by  the  com- 

gany  is  no  longer  an  open  question,  and  need  not  be  discassed. 
pencer  v.  People,  supra  •   Insnrance  Co.  v.  PoUak,  75  111.  292 ; 
Humphreys  V.  Nelson,  115  111.  45. 

In  short,  we  do  not  think,  nndtir  tlie  facta  disclosed  by  the  bill, 
the  court  had  any  power  or  jnnsdictiou  to  review  the  action  of  the 
Btato  Board  of  Equalization,  or  Co  grant  the  relief  prayed.  Decree 
affirmed. 

New  Jamy  Railroad  Taxation  Law  of  1864  Con ttru ad— Valuations — 
State  Board  ~  Deductions.  — The  West  Shore  &  Ontario  Tenoiaal  Co.  is  s 
railroad  corporation  aad  li^le  to  b«  taxed  under  the  act  for  taxation  of 
railroad  and  canal  property^  approved  April  10,  1884.  Debts  cannot  be  de> 
ducted  from  tli?  valuation  of  tlie  property  by  the  Stnte  Board  at  AsEesBOrs,  . 
unless  applied  for  under  section  31  of  said  set.  In  the  absence  of  proof  tba 
court  will  not  interfere  with  the  valuation  of  the  franchise  by  the  State  Board 
of  Assessors,  made  at  the  taxing  date.  Where  property  has  been  rettirned  to 
the  State  board  as  used  for  railrosd  purposes  and  has  escaped  local  taxation, 
it  ia  too  late  to  claim  exemption  from  the  valuation  by  such  board.  The  State 
Board  of  Assessors  in  the  valuation  of  property  must  ^tb  its  true  value,  and 
not  be  governed  by  the  vatuation  of  the  local  asBesiors. — (Section  IS  of  the 
Railroad  Tax  Law  of  1884  construed.)  Where  the  prosecutor  claims  and  estab- 
lishes the  right  of  deduction  under  section  13,  such  deduction  must  be  made 
from  the  Incal  tax  and  not  from  the  State  tax  of  one  half  of  1  per  cent.  By 
tbe  act  of  1884  the  legislature  did  not  intend,  in  any  event,  to  diminish  the 
nue  of  the  State  bj  reducing  tlie  tax  one  half  of  1  per  cent. — State  e. 
le  (Supreme  Court  New  Jersey,  November,  1887). 
81  A.  A  E.  R  Cas.— 81 


^d  by  Google 


44)2   OOUMTY  Oil'  TODD  V.  ST.  PAUL,  MINNEAPOLIS,  El'O.,   K.  OO. 


OoDHTY  OF  Todd 


St.  Paitl,  Mihneapolib  and  MANiroBik  B.  Oa 

{Adetmee  Caie,  MinnMota.    FAruary  1,  18S8.) 

Tbe  charter  of  a  railroad  corporation  provided  for  the  pajment  to  the  State 
of  a  stated  percentage  of  ita  gross  earnings,  in  lieu  of  all  taxes  and  aaseaa- 
meats,  and  that,  in  conaideratiou  of  such  pajrment,  thecompanj  ahould  be  for- 
ever exempt  from  all  assessmeDte  and  taxes  whatever  upon  its  stock,  f  ranchiaci^ 
or  estate,  real,  personal,  or  mixed.  Held,  that  auch  exemption  was  not  ap- 
plicable to  large  tracts  of  timber-land  purcbaaed  hj  tbe  corporation,  frooL 
which  to  take  timber  to  be  converted  into  ties  and  lumber  for  the  use  of  tha 
corporatioD. 

Appeal  from  district  coart,  Todd  county  ;  Coixms  aod  Baztbb, 
Judges. 

Action  bj  the  county  of  Todd  against  the  St.  Panl,  Minnea{NK 
lis  &  Manitoba  H.  Co.,  to  recover  the  taxes  aseeesed  on  certaia 
lands  owned  by  the  company,  and  claimed  by  it  as  exempt  from 
taxation.  Jndgment  was  given  for  the  connty,  and  the  compaDy 
appeals. 

IF.  E.  Smith,  R.  B.  Qal-mha  {M.  D.  Orover  and  8.  T.  Gamp- 
bell,  of  counsciH  for  appellant. 

K  B.  TTooa  and  Moses  E.  Clapp  for  respondent. 

Dickinson,  J. — This  railway  corporation  in  1882  pnrchaBed 
35,000  acres  of  land  in  Todd  connty,  wliicli,  excepting  an  inconsid- 
erable portion,  was  timl>ered  land.  The  question  to  be  deter< 
mined  is  as  to  wlietber  these  lands  are  exempt  from  ordinary  tax- 
Furra,  atioii.     The  lands  were  purchased  on  acconnt  of  their 

lieing  valoable  timber  lands.  Since  1885  the  corporation  has  been 
engaged  in  cntting  the  timber,  and  converting  it  into  boards, 
plank,  ties,  and  lumber  of  all  kinds.  The  gi-eater  part  of  this  has 
been  nsed  in  constructing  and  repairing  the  railroad  of  this  cor- 
poration in  this  State  ;  the  remainder  (about  one-tliird)  has  been 
used  for  a  like  purpose  upon  tliat  part  of  the  road  which  is  in  the 
territory  of  DAota.  In  some  places,  where  the  timber  lias  been 
cnt,  grass  has  grown  np,  a  small  quantity  of  which  has  been  sold. 
Upon  a  part  of  one  track  a  town-site  had  been  platted  before  thia 
land  was  purchased  by  the  corporation,  and  a  part  of  the  lots  are 
now  owned  by  it.  This  corporation  became  the  owner  of  a  part  of 
the  line  of  the  Minnesota  &  Pacific  K.  Co.,  and  as  to  its  line  of 
road  succeeded  to  the  rights,  franchises,  !ind  immunities  of  that  com* 
pany,  including  its  exemption  from  ordinary  taxation.     As  to  this 


^d  by  Google 


TAXATION — PERCENTAGE  IN   LIEU  OF.  483 

no  qnestioD  is  raised ;  no^  tbat  the  clmrtei-  of  t)ie  Minnesotii  & 
Pacific  Co,  is  to  be  referred  to  as  defining  tlie  exemption  to  which 
tlic  St.  Piuil,  MinneapoltB  &  Manitoba  Co.  is  entitled.  B;  section 
1  of  this  cliarter  (chapter  1,  Laws  1S57,  Ex.  SeEs.)  corporate 
powers  were  granted,  iiichiding  the  risrliE  to  acquire,  by  purchase 
or  otherwise,  and  to  hold,  convey,  sell,  and  lease,  property  and 
estates  either  real  or  persona!  or  mixed.  Section  2  empowered  the 
corporation  to  loaite,  construct,  and  oj^rate  a  railroad.  Section  3 
antliorized  the  appropriation,  by  virtne  of  the  right  of  eiiiiuent 
domain,  of  a  belt  of  land,  not  exceeding  200  feet  in  width,  through- 
out the  entire  length  of  the  load, and  to  take  propei-tj  even  beyond 
that  limit  for  certain  necessary  purposes.  Section  16  regraiited  to 
the  corporation  the  lands  granted  to  the  teiTitory  by  act  of  eon 
gress.  Section  18  provided  for  the  annual  payment  to  the  State 
of  3  per  cent,  of  the  gross  earnings  of  tlie  raili-ond,  "  in  lieo  of  all 
taxes  and  aseeEsments  whatever,"  and  that,  "in  consideration  of 
SQch  annual  payments,  the  said  coinpany  shall  be  forever  exempt 
from  all  assessments  and  taxes  whatever  ....  upon  all  stock  in 
the  said  Minnesota  &  Pacific  K.  Co.,  wliether  belonging  to  said 
company  or  to  individuals,  and  Upon  all  its  francliises  or  estate, 
real,  pei-sonal,  or  mixed,  held  by  said  company,  and  said  land 
granted  by  said  act  of  congress  ....  shall  be  exempt  from  all 
taxation  till  sold  and  conveyed  by  said  company."  Section  20  de- 
clared tbat  the  company  should  be  "capable,  in  law,  of  taking  and 
holding  any  lands  granted  bv  the  government  of  the  United  States, 
or  of  this  territory,  or  of  tlie  futnre  State,  or  by  otiier  parties, 
which  shall  be  conveyed  to  it  by  this  act,  or  by  deed,  gift,  or  pur- 
cliase,  or  by  opci-atioii  of  law,  and  may  mortgage,  pledge,  sell,  and 

convey  the  same " 

It  is  a  familiar  rule  declared  and  applied  in  almost  all  of  the 
cases  involving  questions  like  that  under  consideration,  that  "stat- 
utes imposing  restrictions  upon  the  taxing  power  of  a 
State,  except  so  far  as  they  tend  to  secure  uniformity  ^'S^o  tS- 
and  equality  of  assessment,  are  to  be  strictly  construed."  niTi*™o'^ 
This  IS  the  language  of  the  supreme  court  of  the  ™™°  "»»"• 
United  States  in  Bank  v.  Tennessee,  hereafter  re- 
ferred to  (104  U.  S.  493).  In  County  of  Ramsey  v.  Railway  Co., 
33  Minn.  537,  we  had  occasion  to  construe  a  similar  statute.  A 
statutory  exemption  of  "the  railroad,  its  appurtenances  and  ap- 
pendages,  and  all  other  property,  estate,  and  effects  of  said  corpora- 
tion, held  or  used  for,  in,  or  about  the  constrnction,  equipment, 
renewal,  repairing,  maintaining,  or  operating  its  railroad,  includ- 
ing the  lands  granted  to  said  company  to  aid  in  the  construction  of 
flaid  railroad,  as  also  the  stock  and  capital  of  said  company,"  was 
considered  applicable  only  to  such  lands  (apart  from  the  land 
grant)  as  were  held  and  appropriated  to  the  proper  purposes  of 
the  corporation  in  its  business  of  constrncting  and  operating  a  rail- 


iiz^dbvCoOglc 


484  OOUNTT  OF  TODD  V.  ST.  PAUL,  MINNEAPOLIS,  ETC.,  R.  CO. 

road.  It  baa  been  considered  t)iat  the  parpose  of  sacli  statutes 
has  been,  not  to  exempt  property  from  taxation,  bnt  to  provide  a 
Bnbatituted  method  of  securing  to  the  State  its  proper  revenue 
from  the  taxable  property  of  these  corporations.  City  of  St.  Paul 
V.  Railroad  Co.,  23  Minij.  469 ;  County  of  Hennepin  v.  Railway 
Co.,  33  Minn.  534,  535  ;  Ramsey  Co.  v.  Railway  Co.,  supra.  And 
tlie  exemption  of  taxable  property  from  direut  taxation  is  based 
npoti  the  assumption  that  such  property  will  be  held  and  used  for 
the  purposes  for  wliich  the  corporation  was  created,  and  through 
Buoh  use  yield  to  the  cor|>oration  an  income,  and  to  the  State  a 
percentage  of  the  same  in  lieu  of  direct  taxation.  "We  tltiiik  that 
the  decision  in  the  case  last  cited,  and  the  reasoning  upon  which 
it  is  based,  are  applicable  here  to  exclude  tlie  land  in  question  from 
the  operation  of  the  exemption  clause  above  recited.  The  lan- 
guage of  the  statute,  it  is  true,  is  sufficiently  comprehensive  to  in- 
clude all  property,forw]iatever  purpose  it  may  Lave  been  acquired 
and  held ;  but  that  it  is  to  be  read  and  construed  in  view  of  the 

purposes  fo4'  which  the  corporation  was  created.  Tliis 
omSni?"  ra  was  the  Construction  and  operating  of  a  i-ailroad,  and 
JoS™i«^i  the  whole  act  relates  to  this  purpose.  As  to  tlie  land 
Sjufo^Sm.     grant  which  was  conferred  upon  the  coi"poi-ation  to  aid 

in  the  construction  of  the  road,  its  pi-iviJeges  were 
peculiar.  It  was  not  expected  that  the  great  body  of  such  lands 
would  be  occupied  or  used  directly  for  railroad  construction  or 
railroad  business,  and  the  purposes  for  wliich  the  grant  was  made 
contemplated  that  the  same  might  be  held  and  disposed  of  for 
speculation  and  gain ;  and,  as  to  such  land,  the  exemption  was 
specially  and  particularly  declared.  But,  apart  from  the  special 
purposes  for  which  this  grant  of  lands  was  made,  and  the  special 
provisions  relating  to  it,  there  is  nothing  in  the  charter  extending 
tlie  general  scope  of  the  powers  of  this  company  beyond  the 
bounds  which  ordinarily  limit  the  powers  and  privileges  of  rail- 
road corporations.  Although  it  mij;iit  be  for  the  profit  and  benefit 
of  the  company  to  purchase  land  merely  for  speculation,  or  to  engage 
in  manufacturing  for  profit,  or  in  banking,  it  was  not  empowei^ 
to  engage  in  such  enterprises;  and  if  it  were  to  acquire  and  use 
land  for  such  purposes,  such  property  would  not  he  employed  in 
the  manner  contemplated  by  the  statute  in  question,  and  woald 
not  come  within  the  exemption  there  declared.  No  very  precise 
rule  can  be  laid  down  by  which  it  can  be  determined,  iu  all  cases, 
whether  land  acquired  for  railroad  purposes  is  or  is  not  witliin 
ench  an  exemption.  The  mere  fact  that  it  was  acquired  and  used 
for  purposes  connected  witJi  the  road  would  not  necessarily  de- 
termine its  exemption.  Many  branches  of  industry  might  be  made 
serviceable  in  connection  with  tlie  operations  of  a  railroad,  and 
property  be  devoted  to  various  uses,  which  could  hardly  be  sup- 
posed  to  have   been   contemplated,   when   the  corporation    was 


^dbyGoOglc 


TAXATION — PERCEKTAGE   IN   LIED   OF.  486 

created,  as  being  witliin  the  scope  of  ita  powera.  Siicli  might  be 
the  case  with  respect  to  tlie  purchase  and  working  of  iron  mines, 
forges,  and  roiling-milis;  the  erecting  of  residences  for  tJie  nse  of 
ita  officers  and  employees,  niider  ordinary  circnmstances ;  the  build- 
ing up  of  towns  along  tlie  route  to  aSect  the  location  of  centres  of 
popnlntion  and  bnsincEs,  and  thus  to  promote  the  businesB  and  the 
intei-estB  of  the  company.  Even  tbougli  the  State  were  not  to  in- 
terfere with  a  corpoi'ation  engaged  in  such  enterprises, the  property 
thus  invested  and  used  would  not  be  witliin  tlie  purposes  or  the 
Bcope  of  this  statutory  exemption.  Neither,  on  the  other  hand, 
should  the  operations  of  the  corporation  be  limited  to  those  things 
which,  in  the  strictest  sense  of  the  word,  are  neccsBiiry  for  the 
bare  construction  and  operation  of  a  railroad.  In  the  absence  of 
peculiar  language  controlling  the  effect  of  a  chartei',  such  a  cor- 
poration is  implicitly  authorized  to  prosecute  its  business  in  the 
Dsual  and  ordinary  way  in  which  ench  common  enterprises  are  car- 
ried on.  They  may  do  tiiat  which  is  reasonably  necessary  for  the 
accomplishment  of  the  authorized  undertaking;  but  it  is  not  con- 
templated tlnitextraoi'dtnary  and  unusual  powers  shall  be  exercised. 

The  pnrchaae  of  the  lands  in  question  could  not,  we  think,  he 
deemed,  in  any  proper  sense  of  the  word,  necessary  for  poBcam  of 
the  prosecution  of  this  enterpnae,  nor  was  it  such  an  feUSr'""??* 
ordinary  appropriation  of  property  to  the  purposes  of  ""o"*™"- 
the  railroad  as  to  come  witnin  the  reason  and  scope  of  the  exemp- 
tion. Such  a  purchase  and  use  is  no  more  within  the  contem- 
plated means  of  accomplishing  the  pnrposes  of  the  incorporation, 
and  no  more  properly  incident  tliereto,  thau  would  be  the  purchase 
of  an  iron  mine,  and  the  erection  and  operation  of  works  for  con- 
verting the  ore  into  iron,  rails,  and  machinery.  If  there  is  any 
limit  to  the  exemption, — and  as  to  this  there  can  be  no  question, 
under  the  authorities, — this  property  was  unquestionably,  in  our 
opiuion,  beyond  the  scope  of  the  exemption.  It  may  be  stated,  aa 
a  general  pi'oposition,  that  such  real  estate  of  a  corporation  as  is 
not  itself  devoted  to  use  for  railroad  pnrposes  is  not  within  encli 
exemption,  even  though  the  product  of  the  land  be  so  used. 
Whetlier  any  real  property  wliich  the  corporation  could  not  ao- 
quii-e  by  condemnation  under  the  law  of  eminent  domain  (and  it 
conld  not  have  so  acquired  tiiis  land)  would  be  exempt  from  ordi- 
nary taxation,  we  need  not  decide. 

In  addition  to  authorities  cited  in  County  of  Bamsey  v.  Kailway 
Co.,  eupra,  we  refer  to  some  others  going  to  sustain  Atvioanm 
the  view  wc  have  taken  of  this  case.  In  re  Swigert,  »"n"ii>. 
119  111.  83,  the  supreme  court  of  that  State  lately  considered  the 
qiiestion  of  the  taxability,  for  other  than  State  purposes,  of  agrain 
elevator  built  upon  the  lands  of  a  railroad  corporation,  and  owned 
by  it,  but  leased  to  other  parties.  The  elevator  facilitated  the 
operations  of  the  railroad  in  the  shipment  of  grain.     Tlie  charter 


^d  by  Google 


486  couirrY  of  todd  v.  st.  paul,  Minneapolis,  etc.,  e.  oo. 

of  the  company  exempted  from  taxation  certain  granted  lands,  and 
also,  for  a  period  of  hix  years,  the  "  stock,  property,  and  effects  of 
tlie  company,"  and  thereafter  "the  stock,  property,  and  asBets" 
belonging  to  the  company  were  to  be  taxed  to  a  limited  extent,  for 
State  piii'poeeB.  The  corporatiou  was  '■'  exempted  from  all  taxation 
of  every  kind  except  as  herein  provided  for.  It  was  congidered 
that  altnongh  the  language  of  the  statute  was  sufficient  to  include 
tlie  property  in  question  within  the  exemption,  yet  that  it  was  not 
the  purpose  of  the  legislatnre  to  exempt  snch  property  so  held,  it 
being  not  necessair  for  the  construction  and  operation  of  the  road. 
See,  alao.  Railroad  Co.  v.  Irvin,  72  111.  453.  In  Bank  v.  Ten- 
nessee, 101  U.  S.  49S,  a  banking  corporation  was  empowered  to 
"  parchaee  and  hold  a  lot  of  ground  for  the  use  of  the  institution 
as  a  place  of  business,  and  at  pleasure  sell  and  exchange  the  eame^ 
and  may  hold  snch  real  or  personal  property  and  estate  as  may  be 
conveyed  to  it  to  secare  debts  due  the  institution,  and  may  sell 
and  convey  the  same."  The  charter  further  declared  that  the  in- 
stitution should  "  pay  to  the  State  an  annual  tax  of  one  half  of  one 
per  cent  on  each  share  of  capital  stock,  which  sliall  be  in  liett  of 
all  other  taxes."  The  bank  purchased,  with  a  portion  of  itscapital 
stock,  a  lot  with  a  building  upon  it,  a  part  of  which  building  the 
bank  occupied,  and  it  leased  the  remainder.  As  security  for  cer^ 
tain  loans  from  the  bank  a  trust  deed  of  certain  other  lands  had 
been  made  in  its  favor.  To  enforce  the  security  these  lands  had 
been  sold  under  tlie  deed,  the  bank  purcliasing,  and  afterward 
holding  tlie  same  for  sale.  It  was  held  that  these  lands,  and  that 
part  of  the  bank  building  not  occupied  by  it,  were  not  exempt 
from  taxation.  The  court  declai-es  the  rule  of  strict  constructionr 
to  which  we  have  before  referred,  and  say :  "  It  is  to  be  pi-esumed 
that  the  exemption  from  other  than  the  designated  tax  was  in  con- 
sideration that  the  capital  would  be  employed  for  its  legitimate 
purposes.  ...  In  our  judgment  the  limited  exemption  cannot 
be  extended  to  property  used  beyond  the  actual  wants  of  tlie  cor- 
poration in  carrying  out  the  purposes  of  its  creation."  The  court 
cite  with  approval,  among  other  cases,  State  v.  Commisaionei's  of 
Haiistield,  23  N.  J.  Law,  510,  in  which,  under  a  charter  authons- 
ing,  generally,  a  railroad  company  to  purchase  and  hold  real  estate, 
it  was  held  that  lands  acquired  by  the  company  and  occupied  by 
(iwfllirig-Iionseswhichit  let  to  its  employees,  was  not  exempL  In 
tlie  latter  case  of  State  v.  Hancock,  35  N.  J.  Law,  537,  the  sharp 
contrast  which  is  made  prominent  in  the  opinion  in  State  «.  Mans- 
field, as  a  test  of  taxability  between  what  is  strictly  necessary  nnd 
wJiat  is  convenient  for  the  purposes  of  the  corporation,  is  disap- 
proved ;  but  the  decision  in  the  lattter  case  is  not  opposed  to  our 
view  of  the  law.  See,  further,  Railroad  Co.  v.  Burlington,  28  Vt. 
193;  Inhabitants  of  Worcester  v.  R:iiIroad  Co.,  4  Mete,  564; 
Railway  Co.  v.  City  of  Milwaukee,  34  Wis.  271.     Order  affirmed. 


^d  by  Google 


TAXATION — PARK   PURPOSES.  487 

Eiamptlon  from  Tuation  Eit«nd>  to  What? — Bee  Chicago  &  A.  R.  Co. 
•.  People,  e  Am.  &  Bag.  R,  R.  Cas,  94  :  Alexandria,  C.  R.  &S.  Co.  e.  Dist 
of  Columbia,  7  lb.  82S  ;  Worth  «.  WiImlngtOD,  etc.,  R.  Co.,  18Ib.  286 ; 
Heinphis,  etc.,  R.  Co. «.  Loftin,  18  lb.  877  ;  Vicksbarg,  etc,  R.  Co.  s. 
BaaitiB,  84  Am.  is  Eng.  R.  B.  Caa.  (WO. 


Chicago  asd  Kobthwestebn  K.  Oo> 


Fboplb  ex  rd.  Seip,  Collector. 

(130  lUinoit  lU.) 

nere  la  no  conatitational  or  atatutory  exemption  from  the  auMsing  of 
nilway  property,  if  specially  benefited,  for  park  or  boalerard  pnrpoKa. 
A  judement  conflnping  special  asaeasmetita  upon  property  benefited  by  % 

Sroposed  public  improvemeat,  is  coDcluaiTe  as  to  any  and  all  objection!  and 
efeoces  that  might  have  been  interposed  thereto.  On  application  forjudge 
mentagaioBt  the  lands  for  delinquent  aasefiam^nta,  it  cannot  be  ihown  that 
the  property  was  exempt,  or  not  benefited,  or  that  the  ordinance  nndor 
irhicb  they  were  made  was  invalid.  All  lucb  infttt«rs,  after  the  judgment 
«f  conflrmation,  become  re*  judicata, 

Appeai.  from  the  county  court  of  Cook  coQUty ;  the  Hon.  BioH- 
ABD  Fbendebqast,  Jodge,  presiding. 
W.  G.  Ooudy  for  the  appel]ant. 
Cam^ibeU,  aamilton,  db  Ouster  for  the  appellee. 

ScHOLFiELD,  J. — ThiB  appeal  ib  from  a  indgmect  of  the  ooDOt; 
court  of  Cook  couiitj,  for  tlie  amoniit  delinquent  on  a  Bpecial  aa- 
seeeinent  made  on  behalf  of  the  West  Chicago  Park. 

The  proceeding  was  instituted  under  section  18  of  "An  act  to 
amend  the  charter  of  the  city  of  Chicago,  to  create  a  board  of 
park  com  mission  el's,  and  authorize  a  tax  in  the  town  facib. 

of  West  Chicago,  and  for  other  purposes,"  approved  February  27, 
1869.  (1  Private  Laws  of  1869,  p.  348.)  AsBesBora  were  ap- 
pointed, and  an  assessment  was  made,  tlie  roll  of  wliicli  was  re- 
turned to  the  circuit  court  of  Cook  county,  and  confirmed  by 
that  court,  after  proper  notice  to  the  owners  of  the  property 
affected,  on  the  21at  of  January,  1884.  The  Oucago  and  Nortli- 
western  li.  Co.  did  not  appear  before  the  circuit  court  and 
make  any  objection  to  the  confirmation  of  the  assessment.  A 
warrant  was  issued  to  the  collector,  and,  the  railway  company  not 
having  paid  the  several  amounts  iissessed  against  its  pi-operty,  it 
vas  returned  delinquent  Application  was  then  made  to  the 
county  conrt  by  the  county  collector,  for  jiidjnnent  against  th« 


^d  by  Google 


488        CHICAGO   AND    NOETHWESTEEN   B.    00.    V.    SKIP. 

property  so  retnrned  delinqaetit.  The  railway  companv  appeared 
and  made  objeotioiis,  which  were  overruled  by  tlie  court. 

Three  grounds  are  urged  for  revei-sing  tlie  jndtrment  of  the 
county  court ;  Firet,  the  railway  real  estate  is  not  enhject  to  special 
assessment  for  the  opening  and  innintcnaiice  of  the  proposed 
bonlevnrd ;  second,  no  spccinl  nEsesEmeiit  was  innde,  but  the 
bnrden  imposed  was  a  tax  according  to  tlie  value  of  the  property; 
third,  the  assessoi's  did  not  estimate  the  benefits  on  the  seveml  tote, 
blocks,  or  parcels  of  land.  Neither  of  these  positions  is,  in  onr 
opinion,  tenable. 

There  is  no  constitutional  or  statutory  esemption  against  assesa- 
ing  railway  property,  if  spedally  bcnelited,  for  park  or  boulevard 
purposes;  and,  therefore,  nnless  there  is  something  in 
■m'^LSSI-  tl'6  nature  of  the  property  itself  which  absolutely  pre- 
rwoSi.'*"  eludes,  as  a  matter  of  law,  inquiry  and  judgment  by 
the  circuit  court  whether  such  property  can  be  special- 
ly benefited  by  the  opening  or  improving  of  parka  or  connect- 
ing boulevards,  the  court  phtinly  had  jurisdiction  to  ascut'taln  and 
determine  the  fact  and  apply  the  law;  and  if  the  circuit  court  had 
jnrisdiction  to  ascertain  and  determine  the  fact  and  apply  the  law, 
it  is  unimportant  that  it  adjudged  that  tliere  were  special  benefits, 
when,  in  fact,  there  were  none,  and,  under  the  pecu)iar  conditioD 
and  location  of  the  property,  could  have  been  none,  for  this  is  error, 
only.  We  are  aware  of  nothing  in  the  nature  of  sueli  property 
which,  in  a  legal  sense,  absolutely  precludes  all  inquiry  whether 
it  may,  in  any  ease  and  under  any  cireumetances,  be  specially  bene- 
fited by  a  park  or  by  a  boulevard  connecting  different  parks, 

In  Canal  Trustees  ei  al.  v.  City  of  Chicago,  12  III.  403,  we  held 
that  Uie  property  of  the  trustees  of  the  Illinois  and  Michigan  Canal 
might  be  specially  benefited  by  the  opening  of  a  street,  and  that 
it  was  therefore  to  be  included  in  a  special  assessment  for  that 
purpose.  In  City  of  Ottawa  v.  Fi-ee  Clinrch  et  al,  20  111.  423, 
we  Leld  that  church  property,  though  not  liable  to  ordinary  taxa- 
tion,  was  liable  to  special  assessment.  In  County  of  McLean  v. 
City  of  Bloomington,  106  Id.  209,  we  held  that  the  public  square 
in  tlie  city  of  Bloomington,  belonging  to  the  county,  was  liable  to 
be  specially  assessed  for  the  improvement  of  the  adjacent  streets. 
Ana  in  City  of  Cliicn^  v.  Baptist  Theological  Union,  115  Id. 
245;  8.  c,  13  Am.  &  Eng.  Corp.  Cae.  409,  we  held  that  a  clause 
in  the  charter  of  a  college,  exempting  its  property  from  special 
assessments,  was  in  contravention  of  the  constitution  of  1848, 
which  required  uniformity  and  equality  in  special  assessments. 

The  case  of  South  Park  Commissioners  v.  Chicago,  Burlington 
&  Qoincy  R.  Co.,  107  111.  105 ;  s.  c,  13  Am.  &  Eng.  R.  R. 
Cas.  415,  cited  by  counsel  for  appellant,  was  an  appeal  from  the 
appellant  conrt  in  a  case  which  had  been  brought  into  that  court 
by  writ  of  error  to  the  circuit  court,  on  a  judgment  of  contirma- 


^d  by  Google 


TAXATION — PARK   PURPOSES.  489 

tioD,  and  the  qnegtion  there  was,  whether  right  of  way,  occnpnticy, 
fninchise,  pmperty,  and  iitterest  of  tlie  appellee  in  Michigan 
avenae  are,  witliiii  the  meaning  of  the  nets  therein  cited,  contiga< 
OQS  property  abutting  upon  encli  avenue,  and  it  was  held  in  the 
negative.  But  there  is  nothing  analogous  to  that  in  the  case  b& 
fore  ns. 

Whatever  may  be  said  in  regard  to  the  mere  track  of  the 
railway,  it  is  impossible  to  see  wliy  depot  grounds,  and  other  real 
estate  need  by  tlie  company,  may  not  be  benefited  by  improve, 
ments  of  the  cbaracter  liere  contemplated,  at  least  us  much  as  may 
be  the  pnblic  eqnare  occupied  by  the  county  court  hoiise,  the  canal 
lands,  and  the  lot  occupied  by  tlie  cimrch,  by  like  improvements; 
and  since  the  question  of  jurisdiction  tui'na  upon  the  right  of  in- 
quiry, and  not  upon  the  correctness  of  decision,  it  is  enough  that 
railroad  property  may  Bometimes,  under  certain  circnnistanees,  be 
flpecially  benefited  by  improvements  of  the  general  character  of 
the  present. 

Tlie  report  wiiich  was  confirmed  was,  that  the  assessors  had 
made  the  assessment  "  npon  the  property  by  tliem  deemed  bene- 
fited by  reason  of  snch  improvement,  as  near  as  may  be  in  pro- 
portion to  the  benefits  resuhing  thereto."  Tiiis  was  not  objected 
to,  and  was  confirmed  by  the  court,  and  it  is  a  snflicieiit  refutation 
of  the  allegation  that  a  tax  was  levied  according  to  the  value. 

In  People  v.  Brislin,  80  111.  432,  the  uppeal  was,  as  it  is  here, 
from  a  judgment  of  the  county  court  on  an  appiication  for  a 
judgment  against  lands  for  the  amount  of  a  delinquent  assessment. 
Among  other  objections  urged,  was  one  tliat  the  assessment  was 
not  on  contiguous  property,  but  it  was  said :  "  This  question,  and 
'  all  others  bringing  np  the  levy  and  assessment,  liave  been  passed 
apOD  by  the  circnit  court,  and  are  res  Judicaia,  and  i^nnot  now 
be  made  in  this  court.  Upon  these  there  is  a  iudgmeut  pro- 
nounced by  a  court  of  competent  jurisdiction,  and  there  they  most 
rest." 

Lehmer  v.  The  People  ex  rel.,  80  III.  601,  decided  at  the  same 
term,  was  the  same  kind  of  cose,  and  one  of  the  objections  urged 
was,  that  Parker  Avenue,  to  improve  which  the  special  assessment 
there  in  question  was  made,  was  a  private  and  not  a  public  way,  and, 
theivsfore,  tbere  was  no  authority  in  law  to  assess  private  property 
for  its  improvement ;  but  tbe  court  said :  "  It  is  too  late  now  to  in- 
quire into  the  nature  of  Parker  Avenue, — whether  public  or  private. 
That  objection  should  have  been  made  when  application  for  confir- 
mation of  the  assessment  was  made,  of  which  appellant  bad  notice 
by  publication.  It  is  now  res  Judicata.  It  must  have  been  ad- 
judged a  public  street  wlien  the  order  of  confirmation  was  entered, 
and  there  is  no  appeal  from  that." 

Andrews  v.  The  People  ex  rel.,  83  III,  539,  was  an  appeal  from  a 
jndgment  of  the  circnit  court  of  Cook  county  ordering  the  sale  of 


^dbvGoO^lc 


490         CHICAGO   AND   N0KTHWE3TEKN    K  CO.   V.    BEIP.      ' 

the  lands  of  appellant  as  delinquent,  for  the  amonnt  of  certain  special 
aesessments  for  park  purposes  in  the  town  of  West  Chicago,  and  for 
State  and  connty  taxes.  It  was  objected  that  it  did  not  appear 
that  the  property  was  benefited  to  ^e  nmoiint  assessed  thereon, 
bat  it  was  said :  *'  Tliis  question  was  settled  by  the  jodginent  of 
the  coart  fixing  the  amount  of  the  assessment.  This  is  a  pi-oceed- 
ing  to  collect  the  asees^ment.  The  former  judgment  cannot  be- 
attacked  collaterally.  The  court  renderintr  that  jadgtncnt  had 
jurisdiction,  and  its  judgment  is  final."  Tliere  was  also  kindred 
ruling  in  Chicago  and  Nothwestern  K.  Co.  v.  The  People  ea  rtL, 
83  111.  467. 

In  Ouge  V.  Parker,  103  III.  628,  bill  was  filed  to  redeem,  and  t» 
aet  aside  certain  tax  deeds.  It  was,  among  other  things,  contended, 
that  the  sale  for  taxes  was  void,  beca'ise  the  ordinance  under  which 
the  special  assessment  was  made  did  not  comply  with  the  law,  and 
therefore  conferred  no  power  to  make  the  special  assessment;  hot 
it  was  held  that  this  objection  was  cured  by  tlie  judgment  of  con- 
firmation. It  was  said:  "If  the  aasessment  was  illegal  from  the 
fact  that  it  was  based  upon  an  insufficient  ordinance,  it  was  the 
duty  of  the  complainant  in  the  bill  to  appear  before  the  county 
coart  when  the  application  was  made  to  confirm  the  asseesment, 
and  there  make  the  objection  ;  but  as  he  failed  to  do  so  this  jndg- 
ment  of  the  county  court,  when  called  in  qaestion  collaterally, 
must  be  regarded  as  conclusive." 

In  Schertz  v.  The  People,  105  111.  27,  which  was,  like  the 
present  case,  an  application  for  judgment  to  sell  real  wtate  to  pay 
the  amonnt  of  a  delinquent  assessment,  namerous  objections  were 
nreed,  all  of  whicii,  on  motion,  were  stricken  from  the  files,  and  thi» 
ruling  was  sustained,  tlie  court  saying:  "The  record  of  the  entire 
proceedings,  including  the  previous  judgment  upon  which  the  ap- 

f'lication  is  founded,  was  then  before  the  court,  and  if  it  appeai'ed, 
rom  such  record,  the  court  had  jurisdiction  to  render  the  judg- 
ment of  confirmation,  it  is  cleai;  the  objections  were  properly 
Btricken  from  the  files."  And  again  it  was  said :  "The  real  ques- 
tion, then,  would  seem  to  be,  is  tlie  confirmation  of  the  assessment 
by  the  county  court  a  valid  judgment,  or  is  it  a  mere  nullity^" 

This  court  has  held,  contrary  to  the  opinion  of  tlie  writer  hereof 
and  Mr.  Justice  Craig,  in  Eivemde  Co.  v.  Howell,  113  111,  268, 
that  a  different  rule  applies  to  ordinary  tax  sales,  and  the  princi- 
ple governing  this  clnss  of  cases,  and  that  difference,  is  there  thus 
explained :  ''  Such  confirmations  of  assessments  are,  in  our  opinion, 
to  be  viewed  differently  from  a  judgment  to  sell  real  property  for 
the  taxes  due  thereon.  In  carrying  out  the  powers  given  cities, 
etc.,  by  section  9,  of  article  9,  of  the  constitution,  of  making  local 
improvements  by  special  assessments  on  contiguous  property, 
these  confirmations  of  the  aseesBraents  may  be  regarded  like  iJiat 
of  the  valuation  of  property   by  the  proper  officers  in  ordinnry 


^d  by  Google 


KILLING  STOCK — BRIDGE— PENOB.  401 

eases  of  assessment,  aod  if  tlie  property  owner  fails  to  make  his 
objections  in  the  proper  place,  and  the  assessment  is  confirmed, 
then  he  may  well  not  be  permitted  to  go  behind  the  confirmation 
in  nrging  objections  wlien  proceeding  is  taken  for  enforcing  the 
payment  of  such  special  assessmeiits." 

In  Kedzie  v.  West  Cliicago  P^rk  Commissioners,  114  111.  280, 
we  held,  npon  the  record  then  before  ns,  that  the  circnit  eonrt  had 
jurisdiction  to  confirm  the  identical  report'of  commissioners  upon 
which  the  present  application  for  judgment  is  based,  and  that  no 
objection  to  it  could  be  hcai-d,  npon  bUl  in  chancery  to  enjoin  the 

-oceediiig,  which  might  have  been  m'ged  in  that  court.     In  Le 

"ojne  et  al.  v.  "West  Chicago  Park  Commissioners,  116111.  41, 
on  the  record  then  before  ns  questioning  the  same  asBessment,  we 
orerrnled  all  objections  now  nrged,  except  the  first,  and  that  waa 
not  then  urged. 

The  judgment  is  affirmed. 

Taxation  of  Raitroadtfor  Local  PurpoMi.— See  SUtecJaneyCitj,  1  Am. 
&  Eng.  R.  R.  Cm.  400;  Lincoln  Co.  Ct.  «.  LouiaviUe  &  N.  R.  Co.,  7  lb.  830; 
Baltimore  o.  Baltimore,  etc,  R  Co.,  7  lb.  863. 


£; 


OnroiNif  ATI,  HuoLTON  AHD  Indiutafoub  R.  Co. 


(Ill  Indiana,  209.) 

While  a  railroad  compas;  is  not  required  to  fence  its  track,  or  to  mUDtais 
cattle-pita,  at  points  where  to  do  so  would  interfere  with  the  ufety  of  its 
employees  in  operating  trsini,  or  where  fences  or  cattle-pits  would  interfere 
with  it)  rights  or  with  the  ri^rhts  of  the  public  in  travelling  or  doing  buai- 
ness  with  the  company,  yet  tne  burden  is  upon  the  company  \o  show  that, 
in  constmcting  and  maintaining  a  bridge  abutting  upon  a  highway,  it  had 
adopted  all  reasonable  and  practicable  precautions  to  keep  aniioRts  from 
entering  upon  the  bridge  Trom  the  highway ;  and  it  does  not  alter  the  case 
that  the  bridge  may  have  been  partially  in  Che  highway,  or  that  the  animal 
may  have  been  struck  while  upon  that  part  of  the  bridge  extending  into  the 
highway,  on  ground  appropriated  by  the  company. 

Where,  in  the  absence  of  a  showing  that  it  is  reasonably  impracticable  to 
di>  Otherwise,  a  railroad  company  maintains  a  bridge  in  such  a  condition 
that  animals  may  enter  upon  it  from  a  public  highway,  thus  putting  in 
jeopardy  the  safety  of  trains  as  well  as  the  lives  of  the  animals,  the  railroad 
ia  not  securely  fenced. 

In  aa  action  against  a  railroad  company  for  killing  a  mare,  it  is  not  error 
to  permit  the  following  question  to  be  answered:  "Suppose- 'Little  Miss* 
(the  mare)  was  in  as  sood  condition,  sound  in  wind  and  limb,  at  the  time 
she  was  killed  in  October,  1834,  if  she  was  killed  then,  as  she  was  when  joa 
knew  her  last,  then  I  will  ask  you  to  state  what  was  her  fair  market  value;" 
especially  so  where  counsel  apprise  the  court  that  if  they  do  not  maintain 


^dbyGc5ogle 


493       CINCINNATI,    HAMILTuN,    ETC.,    R.    CO.   V.    JONES. 

tlia  hypotbesiB  upon  which  the  qneation  u  put,  the  evidence  tihaU  be  stiuok 

In  luch  cue,  eTidence  of  the  general  reputation  of  the  mare  among  hoiM- 
men  and  turfmen,  with  reference  to  her  being  rattle-beaded  or  disposed  to 
break  when  racing,  ie  not  admissible. 

Wliere  it  does  not  appear  from  any  statement  in  the  record  what  a  witnen 
would  have  teatiQed  to  in  answer  to  an  interrogatory,  the  Bustaining  of  an 
objection  presents  no  question  on  appeal. 

Fbom  tlie  KiibIi  circuit  court. 

H.  D  Marshall  and  J.  W.  Study  for  appellant. 

B.  L.  Smith,  W.  J.  Hmdy,  C.  Cainhem,  and  T.  J.  NewUrk  for 
appellee. 

Mitchell,  J. — Tliis  was  a  suit  to  recover  the  value  of  a  mare 
alleged  to  have  been  struck  aiidkilled  bv  the  appellant's  engine  and 
Bum.  train  of  cars,  on  the  18th  daj  of  October,  1884.     The 

complnint  charged  that  the  raih'oad  was  not  seciirel;  fenced  at  the 
pluce  wliere  the  aniiniil  went  upon  the  track.  The  issue  was  made 
by  a  general  denial.  There  was  a  trial,  verdict,  and  jadgmeDt  for 
$'3,500. 

It  is  nrged  on  behalf  of  the  appellant,  that  the  verdict  is  not 
sustained  by  the  evidence. 

Tlie  raiU-oad  company  rested  its  defence  mainly  upon  the  propo- 
sition that  it  was  under  no  legal  obligation  to  maintain  a  fence  at 
the  place  where  tlie  animal  entered  apon  its  track. 

It  appears  from  the  evidence  that  the  appellant's  line  paeses 
east  and  west  through  the  city  of  Bnshville.  A  short  distance 
east  of  the  east  boundary  of  the  city  limits  the  i-ailroad  intersects  a 
highway  known  as  the  Michigan  road,  which  runs  north  and  south. 
At  the  point  of  intersection,  and  for  some  distance  either  way,  the 
higliway  runs  parallel  with  and  along  the  west  bank  of  a  race  or 
watercourse  over  which  the  railway  track  ie  laid  upon  a  wooden 
bridge,  some  sixty  feet  in  length.  The  west  end  of  the  bridge  la 
on  a  level  with  the  higliway,  and  within  the  highway  limits,  not 
more  than«eveii  feet  distant  from  the  travelled  track.  Tlie  width 
of  the  highway  at  the  point  of  intersection,  counting  from  the  weet 
end  of  the  bridge,  is  but  twenty-seven  feet.  The  railway  bridge 
was  covered  wiCJi  plank  or  cross-ties,  three  inches  thick,  and  about 
nine  inches  wide,  laid  from  two  to  two  and  a  half  inches  apart. 
Guai-d-r.ii]8  designed  to  afford  protection  to  engines  and  cai-s,  in 
case  of  derailment,  were  placed  at  suitable  distances  from  the  rails 
of  the  main  track,  and  the  evidence  tended  to  show  tliat  the  se- 
curity of  trains,  in  case  of  dctailment  on  the  bridge,  rendered 
it  necessary  to  place  the  cross-ties  close  together.  Ae  a  means  of 
deterring  animals  from  going  upon  the  bridge,  two  cross-ties  had 
been  omitted  or  taken  out,  one  about  three  and  the  other  aboDt 
five  feet  from  the  west  end,  Wiiether  any  more  effective  rricans 
for  that  purpose  could  have  been  employed,  with  a  due  regard  for 
the  safety  of  trains  and  employees,  does  not  seem  to  have  been  the 


^dbyGoOgle 


KILUNQ   STOCK — BKIDGE — F: 

Bnbject  of  any  testimony  one  waj  or  the  otlie 
pany  relics  npon  wliat  it  clairnB  to  have  est 
that  the  west  end  of  the  bridge  extends  necei 
way  limits,  and  that  the  animal  when  strucl' 
west  end  of  the  bridge,  was,  nevertiieless,  wit 
LigliWiiy.  The  company  claims  furtlier,  thai 
not  have  been  constructed  to  the  westwai-d  o 
encnraben'iig  the  highway  and  rendering  trav 
It  appeal's  that  the  plaintiff's  mare  escaped 
and,  passing  along  the  liigliway,  entered  npoi 
bridge,  where  elie  was  strnck  by  an  Engine  : 
the  morning.  There  was  evidence  from  whi 
believed  that  the  animal  had  jinsscd  over  the 
end  of  the  bridge,  and  tJiat  she  lind  turned  w 
ing  to  escape  to  the  liigliway,  when  etnick  b; 
evidence  tended  to  show  that  she  had  fallen  i 
was  struggling  to  extricate  herself  when  tii 
her.  Since  there  seems  to  have  been  no  disp 
end  of  the  bfidge  was  substantially  in  the 
reasonably  clear  that  the  railroad  company  coi 
placed  a  cattle-pit  to  the  westward  of  the  bi 
ran  parallel  with  and  along  the  margin  of  the 
have  served  no  nsefnl  purpose,  and  as  there 
between  the  west  end  of  the  bridge,  which 
and  the  ti-avelted  track,  to  have  placed  a  ( 
Lave  been  manifestly  an  unlawful  and  danger* 
highway. 

It  is  abundantly  settled  that  a  railroad  com 
to  fence  its  tnick  nor  to  maintain  cattle-pits  a 
BO  wonld  interfere  with  the  safety  of  its  emj: 
operating  ti'ains  npon  the  road,  or  wliere 
cattle-pits  wonld  inteiiere  with  its  rights  in  i 
action  of  business  with  the  public,  nor  whi 

Enblic  in  travelling  or  doing  business  with 
e  interfered  witJi.     Wljcn  animals  enter  up 
such  places  and  are  killed  within  limits  that  < 

J  aired  to  be  fenced,  the  company  is  not  liub 
iidiana,  etc.,  K.  Co.  v.  Quick,  109  Ind.  295; 
V.  Sawyer,  109  Ind.  342 ;  Fort  Wayne,  etc.,  J 
Ind.  91 ;  s.  c,  23  Am.  &  Eng.  R.  K.  Gas.  22 
The  company  did  not,  however,  make  its  < 
showing  that  it  could  not  maintain  a  fence 
highway.  The  location  of  its  bridge  was  sn< 
was  necessary  that  it  should  have  been  so  co 
as  to  pi;eveot  animals  from  entering  npon  it ; 
was  impracticable,  the  fact  slionld  Iiave  been 
While   courts   may  say  as   matter  of   laxi 


.,Coti<^lc 


494       CIKCIHIfATI,    HAMILTON,    ETC.,    B.    CO.   «.    JONES. 

panieB  cnriiiot  be  reqnired  to  eieet  fences  or  conetrnet  cattle-pita 
in  pnblic  lii^liwaye,  courts  cannot  judicially  know  that  a  ml- 
road  bridge  abutting  upon  a  highway  may  not  reasonably  be  8o 
constructed  as  to  deter  aniniala  from  entering  thereon,  and  yet  be 
secure  for  the  passage  of  engines  and  trains.  If,  with  reasonable 
ekill  and  cai-e,  a  railroad  bricige  so  situate  can  be  so  constructed  and 
maintained  as  to  prevent  animals  from  entering  upon  it,  and  yet  be 
safe  for  the  bnsiiiess  of  the  company,  a  due  regard  for  the  safety 
of  trains  and  those  travelling  upon  them,  as  well  as  for  the  safety 
of  animals,  imposes  the  duty  npon  the  company  of  exercising  the 
dee^reo  of  care  and  skill  required  to  construct  and  maintain  sncb  a 
a  bridge.  As  has  been  observed  before,  we  find  no  evidence 
upon  this  subject.  The  bnrden  was  npon  the  company  to  show 
tliatitliad  adopted  all  reasonable  and  practicable  precautions  to 
keep  animals  from  entering  upon  the  bridge  fmm  the  adjacent 
highway.  Cincinnati,  etc.,  R.  Co,  v.  Parker,  109  Ind.  235 ;  Louis- 
ville,  etc.,  K.  Co.  ■u  Clark,  94  Ind.  Ill;  LouiBville,  K.  Co.  9. 
Shanklin,  94  Ind.  297. 

Until  it  appeal's  that  it  is  reasonably  impracticable  to  construct 

bridges  with  catHc-gnards,  we  are  constrained  to  hold 

Bupo^  WHKB  {[j^j  where  a  railroad  company  maintains  a  bridge  io 
S^jy'"""  such  a  condition  that  animals  may  enter  npon  it  from 
a  public  highway,  thus  putting  in  jeopardy  the  safety 
of  trains,  as  well  as  the  lives  of  the  animals,  the  railroad  is  not  se- 
cnrely  fenced.  Louisville,  etc,  R.  Co.  i>.  Porter,  97  Ind.  267; 
Evansville,  etc.,  R.  Co.  v.  Barbee,  74  Ind.  169. 

It  does  not  alter  the  case  that  the  bridge  may  have  been  par^ 
tiallyin  thehighway,  or  that  the  animal  may  have  been  struck  while 
upon  that  part  of  the  bridge  wiiicli  extended  into  the  highway 
limits.  If  the  railway  company  appropriated  part  of  the  bighwaj 
to  the  purpose  of  maintaining  its  bridge,  and  left  its  structure  in  sn<Ui 
a  condition  that  animals  coiild  enter  upon  it,  the  company  will  not 
be  heard  to  say  that  animals  killed  upon  the  bridge  were  killed 
within  the  limits  of  the  highway.  After  the  railway  company  con- 
verted part  of  the  highway  to  the  support  of  its  railway  bridge, 
that  part  of  it  which  was  occupied  by  the  bridge,  and  the  tracks 
thereon,  could  not  be  regarded  as  part  of  the  highway. 

At  the  trial  the  plaintiff  was  permitted,  over  the  objection  of 
TALraoFHOMi  the  appellant,  to  ask  the  following  qnestion:  "Suppose 
— EviDtict  'Little  Miss'  was  in  as  good  condition,  sound  in  wind 
and  limb,  at  the  time  she  was  killed  in  October,  1884,  if  she  was 
killed  then,  as  she  was  when  you  knew  her  last,  then  I  will  ask  yon 
to  state  what  was  her  fair  market  value." 

It  was  not  enror  to  permit  the  question  to  be  answered,  espe- 
cially as  tlie  record  in  that  connection  indicates  that  counsel  for  plain- 
tiS  apprised  the  conrt  that  if  they  did  not  maintain  the  hypothesis 
upon  wbieh  the  question  was  put  the  evidence  should  be  stridcen 


^d  by  Google 


KILLING  STOCK — BRIDGE — FENCE.  496 

ont.  City  of  Indianapolis  v.  Scott,  T2  Ind.  196 ;  Pennsylvania  Co. 
V.  Marion,  104  Ind.  239  ;  6.  c,  27  Am.  &  Eng.  E.  R.  Cas.  132; 
Nave  V.  Tucker,  70  Ind.  15. 

Until  the  contrary  appeai-e,  we  must  asenme  that  otlier  evidence 
was  given  in  Bupport  of  tlie  liypotbesis  upon  which  tlie  question 
rested,  or  that  it  was  withdrawn  from  tlie  jury. 

iinlings  made  by  the  court  in  respect  to  admitting  and  excluding 
evidence  npon  various  subjects  connected  with  tlie  condition  of  tlie 
animal  at  tue  time  she  was  killed,  in  respect  to  her  market  value  at 
Bnsliville,  if  withdrawn  from  the  race-conrse,  whether  or  not  she 
had  been  the  loser  in  races,  and  as  to  her  comparative  value  witli 
-another  animal  named,  are  the  subject  of  comment  by  counsel. 
Without  going  into  details  upon  these  subjects,  it  is  sufficient  to 
say  that  we  have  considered  the  questions  presented  and  have  found 
no  error  in  the  rulings  of  tlie  court. 

The  value  of  the  animal  as  a  broodmare  came  in  question  at  the 
trial,  and  the  appellant  asked  a  witness  what  one  of  her  colts, 
which  had  been  sold  some  years  before,  brought  at  a  public  sale  at 
oi  near  the  city  of  Rushville.  The  court  sustained  an  objection  to 
the  qnestion,  It  does  not  appear  from  any  statement  in  tlie  i-ecord 
what  the  witness  would  have  testitied  to  in  answer  to  the  question 

gut.  No  question  is,  theiefore,  presented  for  consideration, 
ligham  v.  Vanosdol,  101  Ind.  160. 

Questions  were  asked  by  the  appellant  in  reference  to  the  general 
reputation  of  tlie  maie  among  horsemen  and  turfmen  "with  ref- 
erence to  her  being  'rattle-headed'  or  disposed  to  break"  when 
racing.  These  were  questions  of  fact,  to  be  proved  by  persons  ac- 
-quainted  with  the  performances  of  the  animal  upon  the  ti'ack.  We 
are  not  directed  to  any  authority,  and  we  know  of  none,  which  sus- 
tains the  claim  that  the  general  reputation  of  the  animal  was  ad- 
missible in  evidence. 

Numerous  otiier  questions  relating  to  rnlings  upon  the  evidence 
Are  discussed.     We  have  examined  them,  and  lind  no  error. 

TJie  qnestion  growing  out  of  the  refusal  to  give  certain  charges 
asked  by  the  appellant  liave  been  considered  and  disposed  of  oy 
what  has  already  been  said  upon  the  subject  of  the  duty  of  the 
railroad  to  maintain  its  bridge  in  such  a  condition  as  to  prevent 
.animals  from  going  upon  it. 

The  instructions  asked  and  refused  proceeded  upon  the  assumption 
that  if  the  animal  entered  npon  the  railroad  track  at  a  public  cross- 
ing, or  if  the  west  end  of  the  bridge  extended  into  the  highway,  so 
that  no  cattle-pit  could  have  been  maintained  therein,  or  if  the 
animal  was  killed  on  the  bridge  witliin  the  limita  of  the  highway, 
then  in  either  case  no  recovery  could  be  had  by  the  plaintiff.  As 
has  already  been  seen,  neither  of  the  foregoing  theories,  without 
more,  is  maintainable.  There  is  evidence  which  sustains  the  amount 
i  by  the  jury. 


iiz^dbvCoOglc 


4S6     CINCINNATI,    HAMILTON,    ETC.,    E.    CO.   ■».    JONES. 

Under  tlie  well-settled  nile  we  cannot  dieturba  verdict  opon 
wbat  we  might  Bnppose  to  be  tbe  weigbt  or  preponderance  of  evi- 
dence. The  iiisti-nctions  of  the  court  pot  the  case  fairly  to  the 
jui-y.     Tiieie  vrne  no  crroi'. 

judgment  affirmed,  with  costs. 

Injuriei  to  Anlmali^Faneaii — Ol^eet  of  Note. — We  presetit  herenitb  r» 
note,  the  objecc  of  wliicli  is  to  collate  all  cases  which  have  appeared  in  the 
Beries  relating  to  iujuriea  to  animals,  arranged  and  clnsaified  under  appro- 
priate heads.  Cases  upon  this  subject  are  so  numerous,  but  involve  bo  few 
new  principles  capable  oF  annotation,  that  it  has  been  thought  the  following 
note  would  not  onl;  prove  to  be  a  convenience  for  reference,  but  also  the  only 
form  of  annotatioQ  of  practical  value.  AH  cases  upon  the  law  of  animals  ar» 
not  referred  to,  but  all  of  those  bearing  upon  the  topics  treated,  it  is  be- 
lieved,  are  included. 

When  the  Company  ii  not  Liable — Unavoidable  Injury. — Where  the  iojnrj 
ia  unavoidable  the  compan  j  is  not  liable.  Chicago,  etc.,  R.  Co.  e.  Packwood, 
7  Am.  &Eng.  B.  B.  Caa.  B84;  East  Tenn.,  etc.,  R.  Co.  «.  Bayliss,  19  lb.  480; 
Bavaunah,  etc.,  R.  Co.  r.  Gciger,  SSIb.  374;  Jojnerc.  8.  C.B.  Co.,  39  lb.  268. 
Where  the  animal  came  on  the  track  siitj  jnrds  in  front  of  the  engine,  and  the 
engineer  immediately  put  on  brakes,  reversed  engine,  and  sounded 
alarm-whistle,  but  was  unable  to  prevent  the  accident,  held,  that  tbe  rwl- 
road  company  was  not  liable.  Little  Rock,  etc.,  R,  Co.  «.  Turner,  IS  lb. 
4S1.     See,  also,  Ala.  G.  S,  R.  Co.  e.  McAlptne,  22  lb.  602. 

Centribvtcry  Negligence. — The  railroad  company  was  not  held  liable  to  the 
owner  of  the  stock  on  account  of  his  contributory  negligence  in  the  follow^ 
iog  cases:  Kansas  City,  elc,  B.  Co.  c.  HcHenry,  6  lb.  681 ;  Wabash,  etc.,  R. 
Co.  c.  Nice,  28  lb.  168.  See  titles  Contributory  Negligence  and  Obligation 
to  Pence. 

Abtenee  of  Negligence. — Where  tbe  company  has  not  been  guilty  of  negli- 

giuce  there  can  be  no  recovery.  McGrath  o.  Detroit,  etc.,  R,  Co.,  32  lb.  574; 
urltngton,  etc.,  B.  Co.  c.  Shoemaker,  33  lb.  Q6S. 

Iiijwriei  not  Beeultirtg  from  Contact  with  Moving  Train. — The  compaoj  Is 
not  liable  for  an  injury  to  cattle  caused  by  failure  to  erect  statutory  fence,  unleaa 
the  aoimal  was  injured  by  a  collision  or  contact  with  the  engine  or  cars  of  tho 
train.  Ctoy  «.  Louisville,  etc.,  R.  Co.,  19  lb,  608;  Burlington,  etc.B-Co.e. 
Bhoemaker,  22  lb.  56S;  Euight  e.  N.  Y.,  L.  £.  &  W.  R.  Co.,  28  lb.  188; 
Holder  e.  Chicago,  etc.,  R.  Co.,  13  lb.  567;  Moore  «.  Burlington,  etc,  R. 
Co.,  infra,;  Pcnna.  Co.  e.  Dunlap,  infra,  p.  S12.  A  railroad  company  is  not 
liable  for  an  injury  to  an  animal  caused  by  the  animal  running  on  tbe  track 
through  fright  at  the  train,  and  being  injured  on  a  trestle  and  not  by  contact 
with  the  locomotive  or  cars.    1,  &  G,  N.  R.  Co,  e.  Hughes,  infra. 

Where  a  colt  belonging  to  plaintiff  ran  from  the  highway  upon  lands  ad- 
joining defendant's  road,  which  did'not  belong  to  the  plaintiff,  and  from 
thence  through  a  gap,  where  a  length  in  the  fence  on  the  side  of  the  road 
was  down,  on  to  the  track  and  upon  a  bridge  designed  for  the  passage  of 
railroad  trains  only,  with  the  spaces  between  the  ties  open,  and  the  colt's 
legs  were  caught  in  the  open  spaces  and  broken,  held,  that  the  defendant 
was  not  liable.  Knight  v.  N.  Y.,  L.  E.  &  W.  R.  Co.,  28  lb,  188.  Compare 
Listen  D.  Cent.  Iowa  R.  Co.,  36  lb.  &93.  In  this  case  the  court  held  that 
where  the  defendant  company  has  neglected  to  fence,  tlie  fact  that  the  train 
did  not  strike  the  horse  and  that  the  horse  was  injured  by  running  in  front 
of  the  train  into  a  bridge,  does  not  relieve  Ihe  company  of  liability. 

Where  Oumer  Wil^ullj/  Expotei  Animal  on  Track.— K^  owner  who  knowingly 
abandotis  his  animals  to  destruction  by  passing  trains,  or  wilfnlly  exposes 
them  upon  the  track  of  a  railroad  company,  cannot  recover,  althotigh  tbe 


^d  by  Google 


KILLING  STOCK — BRIDGE — FENOR  497 

company  may  not  have  performed  the  atatutory  duty  of  fencing  itg  track. 
Welty  0.  I.  &  V.  R.  Co.,  34  Am.  &  Eng.  R.  R,  Caa.  871 ;  Mo.  Pac.  R.  Co.  e. 
Roads,  23  lb.  185;  Fort  Wayne,  etc.,  K.  Co.  «.  Woodward,  i^fra. 

Cattle  attracted  to  Dtpot  by  Hay  on  Gart. — The  railroad  compauy  ia  not 
liable  for  the  killing  of  cattle  attracted  to  the  depot  by  bay  loaded  on  cars, 
where  the  cars  are  not  permitted  to  stand  an  unreasonable  time.  BchooUng 
e.  S.  Louis,  etc..  R.  Co.,  18  lb.  538. 

Whsn  Soundinff  SignaU  vxmld  not  have  Averted  Injury. — Where  it  appears 
that  the  failure  to  sound  the  whistle  or  ring  the  bell  would  not  have  averted 
the  injury,  the  mere  failure  to  do  bo  does  not  render  the  company  liable. 
Braxton  c.  H.  &  St.  J.  R.  Co.,  13  lb.  494. 

Where  Bnilrond  ii  ouned  by  one  Company  and  Leaied  by  Another. — Where 
the  railroad  on  which  the  killing  occurred  was  owned  by  one  company  and 
leased  to  another,  without  special  authority  from  the  state,  both  companies 
are  liable  to  the  owner  of  the  stock.  Mo.  Pac.  R.  Co.  «.  Dunham  (Tex.), 
infra,  p.  030. 

Doty  of  the  Sngirteer  upon  Pereeiving  CatiU  on  Track. — When  the  en- 
gineer sees  or  could  see,  by  vigilaace,  the  cattle  in  time  to  atop  the  train  and 
avoid  injury,  and  fails  to  do  so,  the  company  is  liable.  Wilson  v.  Norfolk, 
etc.,  R.  Co.,  19  lb.  4fi3;  Kansas  City,  etc.,  R.  Co.  o.  Bines,  19  lb.  490; 
Ala.  Q.  8.  R.  Co.  e.  Powers,  19  lb.  503;  Mo.  Pac.  R.  Co.  o.  Wilson,  11 
lb.  447;  Leavenworth,  etc.,  R.  Co.  d.  Forbes,  infra,  p.  623;  Grimmel  o.  Chi- 
cago, etc.,  R.  Co.,  infra;  Denver,  etc.,  R.  Co.  tt.  Henderson,  infra. 

The  engineer  is  bound  to  exercise  proper  watchfulness  to  discover  animals 
on  the  IrRck  and  to  use  reasonable  eSorts  to  avoid  harming  them  when  dis- 
covered. LitileRock.  etc.,  R.  Co.  p.  Holland,  181b.  479;  Simkins  e.  Columbia, 
etc.,  R.  Co.,  19  lb.  467:  Little  Rock,  etc.,  R.  Co.  b.  Finley,  11  lb.  468;  Waeh- 
ingtnn  v.  B.  &  O.  R.  Co.,  10  lb.  749. 

The  engineer  must  keep  reasonable'  look-out  ahead  and  use  reasonable  care 
to  avoid  collision  after  discovering  the  stock.  Memphis,  etc.  R.  Co.  v.  Ban- 
dera. 19  lb.  497;  Ala.  Q.  8.  R.  Co.  b.  Powers,  19  lb.  503;  Liftie  Rock,  etc., 
R.  Co.  o.  Finley,  11  lb.  489.     tempore  Palmer  ».  N.  Pac.  R.  Co.,  tfyVn, 

H  cattle  have  strayed  upon  the  track  or  are  about  to  cross  the  track,  the 
engineer  should  use  ordinary  care  and  diligence  to  prevent  the  cattle  from  be- 
ing run  over.  Mo.  Pac.  R.  Co.  e.  Reynolds,  13  lb.  510;  Little  Rock,  etc., 
R.  Co.  t>.  Henson,  191b.  440;  Little  Rock,  etc.,  R.  Co.  b.  Jones,  18  lb.  443; 
Hannibal,  etc.,  R.  Co.  b.  Young,  19  lb.  G13. 

He  is  bound  to  use  all  means  to  frighten  the  cattle  off  the  track.  Ala.  O. 
a.  R.  Co.  V.  Powers,  Ifl  lb.  302. 

Safety  of  Train  mult  be  Regarded. — But  the  first  duty  of  those  in  charge  of 
a  train  is  to  look  to  its  safety,  and  where  cattle  upo^  the  track  are  run  over 
and  injured  the  question  is.  whether  those  in  charge  of  the  train  did  what 
reasonable  men  would  have  done  under  the  circumstances,  having  in  view  the 
safety  of  the  train,  speed,  regularity,  and  the  safety  of  the  cattle.  Louisville, 
etc.,  R.  Co.  ».  Ganote,  IS'Ib.  519. 

When  Speed  of  Train  need  not  be  Slaehened.—B^it  the  engineer  ia  not  obliged 
to  slacken  the  speed  of  the  train  if  in  ao  doing  he  would  endanger  the  safety 
of  the  passengers.     Louisville,  etc.,  R.  Co.  e,  Marriott,  19  lb.  009. 

When  Speed  of  Train  may  be  Inereaied. — The  engineer  may  increase  the 
speed  of  his  tr^n,  upon  observing  cattle  upon  the  track,  if  in  so  doin^  the 
safety  of  the  passengerB  will  be  promoted  and  the  danger  of  collision  dimin- 
ished.    Chicago,  etc.,  R.  Co.  b.  Jones,  11  lb.  4B0. 

Cittle  Ahead  Ifear  Bridge. — Where  the  engineer  perceives  cattle  ahead  neu 
a  bridge  he  need  not  check  or  retard  the  train  because  the  cattle  may  run  on 
the  bridge;  he  must  use  proper  care  in  the  premises.  Louisville,  etc.,  R. 
Co.  V.  Ganote,  13  lb.  51B. 

When  the  Animal  hai  left  t/i«  Track. — Where  the  animal  has  left  the  track, 
81  A.  &  B.  R.  Caa.— 33 


^d  by  Google 


and  the  engineer  sees  no. reason  that  it  should  return,  the  company  is  not 
liable  for  iDJuriog  it,  unless  the  eogineer  could  have  stopped  the  train  and 
avoided  the  injur;  after  the  aaimal  ran  on  the  track  the  second  time.  Wilson 

r.  Norfolk,  etc.,  R.  Co.,  16  Am.  &  Eag.  R.  R.  Ca3.  453. 

Animal  Wnmg/ull]/  on  Highway  at  Orotting. — Where  an  animal,  wrongrnlly 
upon  a  higbtra;  at  a  railroad  croaatDg,  i«  injured  b;  a  train  the  compaey  ii 
not  liable,  unless  its  servants  after  diKcuverjug  its  peril  fulled  to  do  something 
wbich  would  have  prevented  the  injurv.     Palmer  n.  No.  Pbc.  H.  Co.,  infra. 

When  the  Company  it  lAaMe. — For  Kaibire  to  Exercue  SeatoTioble  Care. — 
When  the  killing  of  cattle  could  have  been  prevented  by  the  exercise  of 
reasonable  care  and  vigilanee  the  company  is  liable.  Chicago,  etc.,  B.  Co, 
o.  Eendlg,  19  lb.  403;  Kaosaa  City,  elc.,  R.  Co.  o.  Hines,  19  15.496; 
Jjeavenworth,  etc.,  R.  Cii.  o.  Forbes,  j7(/>a,  p.  523. 

For  Failure  to  ffive  Signal*  at  Crouingt. — When  unimaU  are  killed  at  Ctob«- 
iog,  in  cotisequeoce  of  the  eogineer's  failure  to  give  statutory  signals,  the 
company  is  liable.     Kansas  City,  etc.,  R.  Co.  v.  Turner,  19  lb.  506. 

For  Killing  Mortgaged  Stock. — It  is  no  defence  to  a  suit  against  a  railroad 
compaoj  for  killing  stock  in  the  mortgagor's  poasession  that  the  alock  wm 
mortgaged  and  the  mortgage  forfeited  at  the  time  of  killing,  lllinoia,  etc., 
R.  Co  e.  Hawkins,  infra. 

Defectiiie  Headlight. — When  animals  are  killed  on  the  track  at  night  by 
reason  of  a  defective  headlight,  which  did  not  give  light  far  enough  ahead  to 
enable  the  engineer  to  stop  the  train  in  time,  the  company  is  liable.  Ala.  G, 
S.  R  Co.  0.  Jones,  16  lb.  S49.     See,  also,  title  Obligation  to  Fence. 

Company  JjiabU  Although  Otsner  was  Negligent. — The  company  is  liable  fOT 
killing  animal,  notwithstanding  the  owner's  contributory  negligence,  whea 
the  injury  could  have  been  avoided  by  the  exercise  of  proper  care.  Fanner 
o.  Wilmington,  etc.,  R.  Co..  20  lb.  481 ;  Washington  e.  B.  &  0.  B.  Co.,  10  lb. 
74»;  B.  &  M.  R.  Co.  t.  Brinckman,  11  lb.  438. 

It  there  be  a  city  ordinance  making  it  unlawful  for  stock  to  run  at  large  at 
the  time  and  place  where  the  injury  occurs  the  railroad  will  only  be  liable  for 
gross  negligence.  I.  &  G.  N.  R.  Co.  ».  Cocke,  23  lb.  326;  Mo.  Pac.  R.  Co.e. 
Dunham,  infrn,  p.  680. 

Stock  Killed  nl  Unfenced  Point  of  Rood  Whtre  Company  it  Bound  to  Fence. — 
When  stock  is  killed  at  a  point  whern  the  railroad  is  unfenced  a  prima fim* 
presumption  of  negligence  arises.  Wymore  o.  Hannibal,  cICt  R.  Co.,  13  lb. 
624;  Varco  o.  Chica^,  etc.,  B.  Co.,'  11  lb.  419. 

The  company  is  liable  for  killing  swine  at  point  where  it  has  failed  to 
fence  its  road.  No  proof  of  negligence  is  necessary,  though,  swine  were 
running  at  large  contrary  to  law.  Lee«.  Minneapolis,  etc.,  It.  Co.,  301b.  4'i6. 
Bee,  also,  Krebs  n.  Minneapolis,  etc..  R.  Cn.,  SO  lb.  478. 

The  company  is  liable  for  stock  killed  in  the  night  at  unfenced  point,  not- 
withstanding statute  forbidding  straving  of  cattle  at  night.  Burlington,  etc. 
R.  Co.  c.  Brinckman,  11  lb.  438.  When  an  animal  is  killed,  having  entered 
on  track  at  place  not  fenced  on  either  side,  but  where  it  is  practicnble  to  fence 
on  one  aide  only,  the  company  is  not  liable  under  the  statute.  Indiitna,  etc., 
B.  Co.  E.  Leak,  13  lb.  631.  Where  the  evidence  fails  to  show  that  csltle 
strayed  on  the  track  at  a  point  whore  the  company  was, bound  to  fence  and 
failed  to  do  so,  there  can  be  no  recovery.  Bremmer  «.  Green  Bay,  etc.,  B. 
Co.,  19  lb.  676. 

The  material  point  to  be  averred  and  proved  is  whether  the  road  was  fenced 
at  the  point  where  the  animals  got  on  the  track.  Wabash,  etc.,  R.  Co.  c.  Tretts, 
19  1b.  601.' 

It  is  the  place  of  entry  of  the  animal  upon  the  track  that  determines  the 
liability  of  the  company.     Jefferson vi lie,  etc.,  R.  Co.  e.  Lyon,  3  lb.  643. 

If  the  stock  get  upon  the  track  at  a  place  where  the  company  is  required 
but  had  failed  to  fence,  and  in  consequence  thereof  are  killed,  tite  company 


^d  by  Google 


KILLING  STOCK — BKIDGE — FENCE.  499 

vill  be  liable,  ftlthoagh  the  billing  occurred  at  b  point  wbere  the  company  ie 
not  required  to  fsDce.  Saider  o.Bt.  Louis,  etu.,  R.  Co.,  7  Am.  &  Bug.  R.  R. 
■Cm.  BBS- 
Proof  that  the  animal  was  killed  at  a  point  where  there  was  do  fence,  but 
where  the  company  was  in  dutj  bound  to  fence,  ie  sufficient  to  take  the  case 
to  the  jury,     Lepp  e.  8t.  Louis,  etc.,  R.  Co.,  89  lb.  243. 

Injury  thrtnigh  Failure  to  Kenee  before  tke  Boad  waa  Compiled. — Where 
cattle  are  killed  b?  reason  of  the  failure  of  a  railroad  compiiny  lo  erect  fences 
along  itB  tracks,  the  company  will  be  liable  for  double  damages  under  the 
Iowa  statute,  although  the  road  has  not  been  (^mpleted  and  open  to  traffic, 
and  the  injury  complained  of  ia  caused  by  a  coastruction  train  carrying 
materials  to  he  used  in  the  constructioQ  of  the  road  at  a  point  beyond  where 
the  accident  happened. 

Animal*  EnUring  Bailroad  Bridge  from  PuMie  Sighteay. — Where,  in  the 
absence  of  a  showing  that  it  is  reasonably  impracticable  to  do  otherwise,  a 
railroad  company  maintains  a  bridge  in  Buch  a  condition  that  animals  may 
enter  upon  it  from  a  public  highway,  thus  putting  in  jeopardy  the  safely  of 
trains  as  well  oa  the  lives  of  the  animals,  ihe  railroad  is  not  securely  fenced. 
Cincinnati,  etc.,  R.  Co.  t.  Jones,  lapra,  p.  491. 

Pretumption  a*  to  Negligenee  in  Cote  of  Injury. — The  mere  fact  that  the  train 
atruck  and   killed  an   animal  Is  not  evidence  of  negligence.     This  must  be 

E roved.  P.,  C.  &  St,  L.  R.  Co.  v.  McMillan,  7  lb,  588;  McKissick  e.  St, 
ouis.  etc.,  R.  Co.,  7  lb.  590;  B.  &  M.  R.  Co.  e.  Went,  0  lb.  384;  Savannah, 
-etc.,  R.  Co.  e.  Gelger,  S9  lb,  274;  Atchison,  etc.,  R.  Co.  c.  Bette,  infra. 

See  Bontra,  Western,  etc.,  R.  Co.  c  Steadly,  6  lb.  684;  Joyner  e.  8.  C.  R. 
Co.,  39  lb.  353. 

Statutory  Proviaioatin  Begard  to  Pretumption  of  Negligeiyee. — It  la  provided 
by  Statute  in  some  8:ateB  that  proof  of  the  injury  shall  constitute  a  ^ma 
^aci^  presumption  of  defendant's  negligence.  See  Western,  etc.,  R.  Co.  t>. 
Steadly,  6  lb.  584;  Western  Md.  R.  Co.  b.  Carter  (Md.),  11  lb.  483,  Little 
Rock,  etc.,  R.  Co.  b.  FInley  (Ark.),  11  lb.  469;  Little  Rock,  etc.  R.  Go.  e. 
HensoQ  (Ark.).  19  lb.  440.  Sunietf.  Jones  (Ark.),  II  lb.  443;  St.  Louis,  etc., 
R.  Co.  c.  Hagan,  19  lb.  446;  BrenCner  o.  Chicago,  etc.  R.  Co.,  IB  lb.  448; 
Jones  0.  Columbia,  etc.,  R.  Co.  (N.  C),  19  lb.  4B9;  Roberts  e.  Richmond, 
etc.,  R.  Co.,i20  lb.  473;  Savannah,  etc.,  R.  Co.  «.  Qeiger  (Fla.),  39  lb.  374; 
Compare  State  «.  Devine,  infra  and  note,  where  such  a  statutory  provision 
upon  the  trial  of  an  indictment  of  officers  of  the  road  and  railway  servants 
for  killing  stock  was  held  unconstitutional. 

M'trylnnd  Statute. — Under  the  Maryland  statute  the  burden  of  proof  is 
imposed  on  the  defendant  to  show  the  absence  of  negligence  on  its  part,  by 
way  of  defence.     Western  Md.  R.  Co.  e.  Carter,  13  lb.  573. 

Where  statute  declares  killinc;  of  stock  prima  facie  evidenee  of  negligence 
the  evidence  of  servants  of  the  company  alone  will  rebut  the  presumption. 
Ky.  Cent.  R.  Co.  v.  Talbot.  7  lb.  580. 

Sforth  C'lrolina  Stttate.—TJadeT  the  statute  of  North  Carolina,  when  an 
action  is  brought  against  the  company  for  killing  cattle  within  six  months 
of  the  accident,  the  presumption  ie  that  the  company  was  nepligcnt.  The 
burden  of  repelling  Ihis  presumption  is  on  the  company.  Wilson  n.  Norfofk 
etc..  R.  Co.,  19  lb.  4B3. 

AUibama  Code. — When  animals  are  killed  at  the  place  and  under  the  cir- 
-CuAstances  speciSed  in  the  Alahama  Code,  a  presumption  of  negligence  on 
the  part  of  the  company  arises.  When  the  killing  u  not  at  suqh  place  or 
under  nuch  ci  re um stances,  negligence  must  bo  proved.  East  Tenn.,  etc.,  R, 
€o.  s.  Baylies,  19  lb  480. 

When  Negligima  need  nof  be  Proved. — When  an  animal  is  killed  by  the  rail- 
road train  wltliin  the  corporate  limits  of  a  cily,  at  a  point  where  the  com- 
Einy  is  bound  to  fence  and  failed  to  do  so,  negligence  need  not  be  proved, 
annibal,  etc.,  R.  Co.  v.  Young,  19  lb.  512. 


.db^Googlc: 


600      CINCINNATI,  HAMILTON,    ETC.,   E.  CO.  V.   JONES. 

Kegligeaea  L^fgrredfrom  ViUatqfiil  ^eei  of  Train. — Negligonce  on  part  of 
railroad  compaDj  ma;  be  iDrerred  from  its  running  the  train  at  an  unlawful 
rate  of  speed,     Clark  e.  Boston  AfHalne  R.  Co.,  xi\fra. 

Vhiitual  but  LaiB/iU  Sptied  no  Beidatc*  of  Negligtnee. — In  action  for  killing 
cattle,  the  fact  tbat  the  speed  of  the  train  was  greater  than  customary, 
though  not  in  excess  of  the  rate  allowed  by  statute  and  the  rules  of  the  com- 
pany, is  no  evidence  of  negligence.     LouisvUlB,   etc,,   R.   Co.  v.   Marriott, 

19  lb.  soe. 

There  must  be  a  fair  preponderance  of  evidence  of  negligence.  Smith  e. 
Chicago,  etc.  R.  Co,,  18  lb.  »m: 

Namber  of  Brakemmt  on  Tniia. — Where  reckless  mismanagement  is  alleged 
in  running  the  train,  the  number  of  brakemen  may  be  considered.  McDon- 
ald 0.  Chicago,  etc.,  R.  Co.,  13  lb.  68IJ. 

The  fact  that  brakemen  on  the  train  were  not  at  the  time  on  their  posts 
'Will  not  entitle  plaintiS  to  recover  unless  their  absence  contributed  to  the 
injury.     Vickflburg,  etc.,  R.  Co.  e.  Hart,  18  lb.  531. 

Applianca  for  Stopping  Train  at  Siffht. — The  railroad  company  is  not 
bound  to  have  buch  appliances  as  will  enable  an  engineer  to  stop  his  train  at 
sight  BO  as  to  avoid  an  injury  to  a  cow  on  the  track  as  soon  bh  it  is  dis- 
covered by  the  headlight,  TS  yards  ahead.  Nor  is  it  bound  to  run  at  such 
speed  as  to  enable  its  trains  to  be  stopped  within  such  space.  Winston  e. 
Raleigh,  etc.,  R.  Co.,  19  lb.  S16.  See.  also,  Natche*,  etc.,  R.  Co.  b.  McNeil, 
19  lb.  SI 8. 

CoiitribitUry  Iftglig«nee  of  the  Owner. — In  the  following  cases  the  contrib- 
utory negligence  of  the  owner  prevented  a  recovery:  Kansas  City,  etc.,  R. 
Co.  «.  McHenry,  6  lb.  581;  Wabash,  etc.,  R.  Co.  o.  Nice,  23  lb.  108. 

Whether  Contributory  Negligonee  it  a  Dtfena  vihen.  Company  luu  Failed  to 
Fence. — In  an  action  against  a  railroad  company  for  injuries  to  animals  caused 
by  a  failure  to  fence,  contributory  negligence  is  held  to  be  a  defence  in  the 
following  cases :  Kansas  City,  etc.,  R.  Co,  e.  McHenry  (Kan.),  6  lb.  581 ; 
Kansas  Pac.  R.  Co.  n.  Landis  (Kan.),  6  lb.  081;  Van  Horn  d.  Burlington, 
etc,  R.  Co.  (Iowa),  7  lb.  OSl ;  Richardson  c.  Chicsgo  &  N.  W.  R.  Co,  (Wis.), 
13  lb.  654. 

Contrary  Bale. — The  following  cases  hold  to  the  contrary:  Welty  v.  In- 
dianapolis, etc.,  R.  Co.  (Ind.),  24  lb,  871 ;  Ala.  O.  8.  R.  Co.  e.  McAlpine 
(Ala.),  15  lb.  644;  Burilnglon.  etc.,  R.  Co.  f.  Fraozen  (Neb.),  15  lb.  530; 
krebsB.  M.  &  Bt.  L.  R.  Co.  (la.),  20  lb.  478;  Farmer  o.  Wilmington,  etc.,  R. 
Co.  (N.  C),  20  lb.  481 ;  Burlington,  etc.,  R  Co.  b.  Webb  (Neb.),  22  lb.  617. 

Whnl  M  ContrHnttory  Stgligence.—The  following  acts  have  been  held  to  he 
contributory  negligence:  Fur  land-owner,  who  accepts  new  wing-fences  as 
part  of  line  of  fence,  to  fail  to  keep  the  same  in  repair.  Pittsburgh,  etc.,  R. 
Co.  0.  Heiskell,  13  Tb.  555. 

Leaving  gate  open,  through  which  stock  escaped  on  the  track  and  was 
killed.     Richardson  ».  Chicsgo,  etc.,  R.  Co.,  13  lb.  654. 

For  party,  who  knows  that  severe  storm  has  occurred  which  prostrated 
fences  generally,  to  turn  cattle  out  within  48  hours  upon  enclosed  land  with- 
out inquiry  as  to  condition  of  railroad  fences.  Carey  e.  Chicago,  etc.,  B.  Co., 
30  lb.  469. 

To  volu'ntarily  permit  cattle  to  run  at  large  near  a  rulrosd,  where  it  is 
not  required  to  be  fenced.     Wiibasb,  etc.,  R.  Co.  «.  Nice,  23  lb.  16B. 

Whntitiwt  OotUributory  2fegligence.~The  following  acta  have  been  held 
not  to  be  contributory  negligence:  For  land-owner  to  fail  to  maintain  cattle- 
guards  at  company's  expense.     Texas,  etc.,  R.  Co.  e.  Young,  IS  lb.  544. 

For  landowner  to  pasture  cattle  in  field  with  defective  fences  which  the 
company  had  failed,  in  pursuance  of  contract,  to  repair,  though  he  knew  of 
their  defective  condition.  Clevelnnd,  etc..  R.  Co.  t.  Scudder,  18  lb.  561; 
Pittsburtth,  etc.,  R.  Co.  b.  Smith,  15t  lb.  570:  Evans  p.  St.  Paul,  etc.,  R.  Co., 
18  lb.  653;  Congdon  «.  Cent.  Vi.  R.  Co..  20  !b.  460. 


^d  by  Google 


KILUNO  8TO0K—BEIDGB— FENCE.  601 

Peniutliiig  &  jkckaia  to  run  upon  ft  fann  niiBtteDded,  or  without  hftving  a 
fence  ordinaril;  sufflcient  to  prevent  such  ftnimal  from  piSBtng  on  to  the 
defeDdaat's  track.     Atchison,  etc.,  R.  Co.  e.  Oabbert,  2Z  lb.  621. 

Pasturing  cattle  on  land  adjoining  a  railroad  track  wliich  has  not  been 
fenced  as  rtqnired  by  statute.     Donovan  t>.  H.  &  St.  J.  R.  Co.,  26  lb.  588. 

Turning  cattle  into  adjoining  field,  where  fence  appears  sound.  Union 
Pac.  R.  Co.  e.  Scbwenck,  13  lb.  663. 

Turning  cattle  loose  in  unfeuced  held  adjoining  ruiroad,  when  such  cattle 
are  killed  by  the  railroad  company's  negligence.  Ala.  O.  8.  R.  Co.  e.  Jones, 
IS  lb.  Q49. 

Atlowiug  cattle  to  run  at  large,  when  the  killing  is  caused  by  failure  of 
railroad  to  fence.  Atchison,  etc.,  R.  Co.  «.  Shaft,  19  lb.  529;  CongdoD  e. 
Central  Vt.  R.  Co.,  20  lb.  460. 

Allowing  cattle  to  stray  unattended,  where  the  killing  could  have  been 
avoided  by  reasonable  care  on  defendant's  part.  Western  Ud.  R.  Co.e.  Car- 
ter. 18  lb.  578. 

Permitting  cattle  to  stray  at  large  in  town,  contrary  to  law,  where  com- 

gany  fails  to  provide  fences  and  cattle-guards.  Watier  e.  Chicago,  etc.,  R, 
0.,  18  lb.  683. 

Turning  mule  out  of  his  enclosure.  Farmer  n.  Wilmington,  etc.,  R.  Co., 
20  lb.  481. 

Fermiltinff  Cattle  to  Sua  at  Large  ii  riot  ContHbutort/  NegUgsaee. — It  has 
been  held  in  the  following  cases  that  where  the  injury  to  stock  has  been 
caused  by  a  failure  to  fence,  the  fact  that  the  owner  of  the  stock  has  per- 
mitted  tiiem  to  run  at  large  does  not  conititul«  contributory  negligence  so 
as  to  defeat  hia  recovery.  Savannah,  etc.,  R.  Co.  v.  Oeiger  (Pla.),  39  lb. 
3?4;  Prickett  c.  Atchison,  etc.,  R.  Co.  (Kan.).  23  lb.  383;  Central  R.  Co.  e. 
Hamilton  (Oa.),  83  lb.  207;  B.  A  M.  R.  Co.  c.  Brinckmau  (Neb.),  II  Ib.488; 
Atchison,  etc.,  R.  Co.  c.  Oabbert  (Kana.),  33  lb.  631. 

Cattle  Running  at  Large  Killed  through  Negligence  of  Company. — Where  the 
cattle  have  been  killed  through  the  company's  negligence,  the  fact  that  they 
were  unlawfully  running  at  large  will  not  exempt  the  company  from  respon- 
ubility.  Roberta  tt.  Richmond,  etc.,  R.  Co.,  20  lb.  473;  Washington  v.  B. 
A  O.  R.  Co.,  10  lb.  749:  B.  &  M.  R.  Co.  o.  Brinckman,  U  lb.  488;  Kreba  v. 
H.  •&  St.  L.  R.  Co.,  20  lb.  478;  Farmer  v.  Wilmington,  etc.,  R.  Co..  30  lb. 
481 ;  Leavenworth,  etc.,  R.  Co.  e.  Forbes,  infra,  p.  S33. 

Quwtion  for  the  Jury. — When  horse  escapes  through  owner's  negligence. 
And  runs  a  long  way  and  then  gets  upon  track  at  another  point,  and  is  Killed 
ftt  a  point  still  further  on,  the  question  of  contributory  negligence  is  for  the 
jury.  Amstein  c.  Qardiner,  16  lb.  586.  Ben,  also,  Hynes  r.  l3an  Francisco, 
•tc.,  R.  Co.,  20  lb.  486. 

Whether  turning  horses  loose,  for  a  short  period,  in  an  enclosed  lot  in 
which  there  was  an  apperture  for  a  gate  on  the  side  next  to  a  highway,  which 
was  left  open,  except  for  a  single  loose  bar  about  four  feet  from  the  ground,  is 
contributory  negligence,  orequivalent  toallowing  the  horses  to  remamar  large 
within  the  meaning  of  the  Iowa  herd-law,  is  a  question  for  the  jury.  Timins 
t>.  Chicago,  etc.,  R.  Co.,  iafra. 

The  compaoy  bad  fenced  track  on  both  sides,  but  had  opened  a  gap  on 
one  side  for  its  own  convenience.  An  animal  was  killed  while  trying  to 
escape  through  the  gap.  n»ld,  that  whether  the  servants  on  the  train  were 
guilty  of  negligence  or  not  was  for  the  jury.  Tyler  n.  Illinois,  etc.,  R  Co., 
19  lb.  619.  « 

Obligatiim  to  Fenee. — The  duty  to  fence  their  lines  imposed  upon  railroad 
companies  is  a  statutory  one.  In  the  absence  of  a  statute  to  require  it  there 
is  no  duty  to  maintain  fences.  Campbell  r  N.  Y.,  etc.,  R.  Co.,  18  lb.  6B9; 
Ward  B.  Paducah,  etc.,  R.  Co.,  1  Ih.  620;  St.  Louis,  etc.,  R  Co.  v.  Busby, 


^d  by  Google 


502       CINCINNATI,    HAMILTON,   lETO.,    B.    OO.  V.   JONES. 

33  lb.  S89i  BoKtoD  &  A.  R.  Co.  n.  Briggi,  7  lb.  641;  Knight  e.  N.  Y.,  etc, 
R.  Co.,  23  11>.  188. 

Feaae  Lout  are  Co^ititutiimaL-'Cbica^,  etc.,  R.  Co.  «.  Dunuer,  19  Tb.  545. 

The  fence  laws  in  TooDessee  do  qoc  apply  to  ndlrood  compMiies.  Wude. 
Pftducah.  etc.,  R.  Co.,  1  lb.  620. 

Statutory  Pmnuitm  at  to  Time  (^  Fendng. — The  campaaj  is  not  bound  to 
fence  road  uoiil  six  montbs  after  its  completion.  St.  Lonii,  etc.,  R.  Go.  «. 
Kirby,  10  lb.  214. 

In  iliuouri,  it  is  held  that  the  companj  will  be  liable  for  the  damages 
caused  by  its  faiiure  to  fence,  after  a.  Bufflcient  aad  reasonable  time,  according 
to  tlie  ciicumstances  of  e;\cb  cose,  for  the  erection  of  fences  has  elapsed.  Bil^ 
ver  o.  Kansaa  Cit;,  etc.,  R.  Co.,  19  lb.  643. 

Tlie  liability  of  the  company  to  build  fences  on  both  sides  of  the  road  c«3>- 
Dot  be  defeated  by  a  contract  with  another  party  to  erect  such  fences.  Silver 
D.  EansHS  City,  etc.,  R.  Co.,  19  lb.  643. 

The  obligation  to  construct  fences  is  not  limited  to  the  protection  and 
benefit  of  the  owner  and  occupier  of  the  abutting  land,  Pittsburgh,  etc.,  R. 
Co.  p.  Allen,  19  lb.  657;  Louisville,  etc.,  R.  Co.  e.  White,  30  lb.  449. 

Doty  to  Fence  againit  Swine. — The  company  is  bound  to  build  such  a  fence 
as  will  prevent  swine  from  straying  on  the  track.  Lee  v.  H.  &St.  L.  R.  Co., 
30  lb.  476. 

Pence  laws  apply  to  all  species  of  animals,  includine  sheep  and  snine.  HaU 
versoQ  t.  Minneapolis,  «tc.,  R.  Co.,  19  lb.  526;  Mo.  Pac.  R.  Co.  «.  Roads,  S3 
lb.  168. 

No  Duty  to  Fence  againtt  Animah  TTtilawfuUy  in  Highway. — The  statute 
does  not  impose  any  duty  upon  the  railroad  to  fence  along  the  highways 
croBsingitsrightof  way  against  animals  not  lawfully  in  the  highway.  Daciels 
p.  Q.  T.  R.  Co.,  23  lb.  609.  C<mpaT»  Evansville,  etc.,  B.  Co.  e.  Barbee,  6 
lb.  680,  where  it  is  held  that  a  railroad  company  is  bound  to  fence  againit 
stock  CD  the  highway. 

Where  AnimaU  Eitaped  from  Eneloture  without  FavU  of  Ovraer. — But  the 
mere  fact  that  the  animals  were  trefipaasere  upon  the  adjoining  land,  from 
which  they  went  ou  to  the  unfenced  railroad  track  sind  were  killed,  will  not, 
where  they  escaped  from  the  plaintiff's  enclosure  without  his  fault,  defeat  a 
recovery.     Mo.  Pac,  R.  Co.  e.  Roads,  23  lb.  165, 

In  Nebraska  the  railroad  company  is  bound  to  fence  its  road  agdnat  stock 
wandering  at  large,  and  is  liable  for  failure  to  do  so.  Fremont,  etc.,  R.  Co. 
e.  Lamb,  S  lb.  867. 

Duty  to  Fence  againet  "Oraiy  Soria." — A  railroad  company  is  required  to 
fence  its  track  for  the  protection  of  "crazy"  horses,  as  well  as  for  the  protec- 
tion of  animals  possessing  good  "horse  sense."  Listen  e.  Ci-nt.  Iowa  R.  Co., 
36  lb.  593.      Compare  Smead  p.  Lake  Shore,  etc.,  R.  Co.,  28  lb.  241. 

F'lUure  to  Fence  in  Mi»gouri. — Failure  to  fence  in  Missouri  ia  negligence, 
making  Ihe  cnmpany  liable  in  double  damages.  Donovan  t>.  H,  &  St.  i.  R. 
Co..  26  lb.  588. 

W/ien  Covenant  to  Fence  BuTit  with  Land. — Parol  contract  to  fence  does  not 
run  with  the  land,  but  written  agreement  does  so  run,  and  may  be  enforced 
against  granteps.      Ky.  Cent.  R.  Co.  *.  Kenny,  20  lb.  458. 

When  Erection  o/  Fence  aiUbe  Eiciieed. — No  private  interest  or  convenience, 
either  of  individualsor  of  company,  will  excuse  the  erection  of  a  fence. 
Atchison,  etc,  R.  Co.  e.  Shaft,  19  lb.  529;  Prickett  v.  Atchison,  etc  R.  Co., 
23  lb.  233. 

It  is  only  in  case  of  public  necessity  that  an  exception  to  the  statntoiT 
duty  to  fence  prevails.     Greeley  e.  St.  Paul,  etc,  R.  Co.,  19  lb.  069. 

The  fact  that  adjoining  land-owner  may  have  erected  a  fence  does  not  ez- 


..i.,CtH>'^lc 


KILLING  STOCK — BRIDGE — FENCE.  603 

cuse  the  railroftd  company  from  (endog.    LouisTille,  «tc.,  R  Co.  o.  White, 
20  lb.  449. 

If  the  place  is  one  that  cannot  be  fenced  without  interfering  with  the  biui- 
nesa  of  the  company  in  the  discharge  of  it8  duty  to  the  public,  or  ia  one 
which  caonot  be  fenced  without  interfering  with  the  use  of  a  highway,  or 
where  a  fence  would  endaoger  the  safety  of  employees  in  the  mana^ment 
and  running  of  its  locomotives  and  traina,  the  company  is  not  required  to 
fence.     Fort  Wayne,  etc.,  R.  Co.  «.  Herbold,  2S  lb.  231. 

The  company  is  not  excused  from  fencing  because  the  way  alongside  of 
track  is  in  use  and  necessary  to  reach  stock-lots  and  cattle -chutes.  Banister 
e.  PunnsylTania  Co.,  19  lb.  570. 

When  the  highway  ruos  parallel  with  the  railroad,  the  company  is  bonad 
to  fence  when  it  passes  through  enclosed  fields  or  unencloeed  land.  Hanni- 
bal, etc.,  R.  Co.  V.  Rouelle,  19  lb.  591. 

The  company  is  bound  to  fence  its  track  except  at  points  where  a  fence 
would  impair  the  use  of  private  property  or  the  rights  of  the  public.  Wabash, 
etc..  R.  Co.  «.  Tretts,  1»  lb.  601. 

WhMv  FeaeaimH  le  BrMtad. — It  has  been  held  that  fences  must  be  erected 
at  the  following  points: 

Along  UMndoud  Landt,  whether  R-airia  or  TiTnbtr.—BmdeT  v.  St.  Louis, 
etc.,  R.  Co.,  7  lb:  55B;  Razor  e.  St.  Louis,  etc.,  R.  Co.,  7  lb.  56S. 

At  Praatt  Orouing. — Indianapolis,  etc.,  R.  Co.  r  Thomas,  11  lb.  491; 
Pittsburgh,  etc.,  R.  Co.  p.  Cunnington,  18  lb.  528;  Baltimore,  etc.,  R  Co.  e. 
Eriger,  18  lb.  602;  Evansville,  etc.,  R.  Co.  e.  Hosier,  33  lb.  569. 

But  a  private  crossing  used  as  a  public  one  need  not  be  fenced.  Atchison, 
etc.,  R.  Co.  e.  GrifEs,  18  lb.  533. 

At  Stdtim  in  Oie  Oouatry  not  vtitkin  LimUt  of  Platted  City,  Town,  or  VU- 
loffa.— Chicago,  etc.,  R.  Co.  e.  Duraser,  19  lb.  645. 

Wh^re  PuS,ic  Uighteay  Runt  along  and  Adjoining  the  Traei. — Hannibal,  etc., 
R  Co.  e.  Morris,  19  lb.  666. 

Where  there  is  room  to  erect  fences  between  the  railroad  and  adjoining 
mrailel  highway  the  company  is  bound  to  do  so.  I^ke  Erie,  etc.,  R  Co.  v. 
Rneadle.  19  lb.  6QS. 

In  Minnesota,  companies  are  bound  to  put  fences  and  cattle-guards  at 
wagon -croBsinga  as  well  within  the  limits  of  cities  and  towns  as  in  the  coun- 
try.    Gi«eley  o.  St.  Paul.  etc..  R.  Co.,  18  lb.  559. 

In  that  part  of  the  town  or  city  where  it  is  not  laid  off  into  blocks  and  lots 
with  streets  and  alleys,  the  obligation  of  the  rulroad  company  to  fence  is 
the  same  as  it  is  outside  of  the  corporate  limita.  Wymore  e.  Hiuiniba),  etc., 
R  Co.,  18  lb.  534. 

The  company  is  bound  to  fence  when  country  road  runs  parallel  with  and 
adjoining  right  of  way  through  unenclosed  prairie  land.  Hannibal,  etc., 
R  Co.  c.  Rutledge,  19  lb.  669. 

When  railroad  must  fence  it  ia  not  bound  to  leave  convenient  places  for 
animals  to  leave  the  track  when  once  on.  Oilman  v.  Sioux  City,  etc.,  R  Co., 
18  lb.  538. 

The  company  must  maintain  fences  in  a  town  when  the  same  is  not  laid 
out  in  blocks  nnd  lots  with  streets  and  alleys.  Wymote  e.  Hannibal,  etc., 
R  Co.,  18  lb.  524. 

Wh«r»  Feneei  n«ed  not  h»  Xreettd. — Fences  need  not  be  erected  at  the  fol- 
lowing places: 

At  Station  0 
7  lb.  S*.-!;  McOrath  B.Detroit',"' 
Cocke,  23  lb.  326;  Prickett  o.  Atchison,  etc.,  R.  Co.,  23  lb.  282;  Ho.  Pac. 
R  Co.  0.  Dunham,  infra,  p.  680. 

-But  a  railroad  company  it  bound  to  fence  a  portion  of  its  station  grounds 
not  necessHrlly  used  by  it  aa  such.     Atchison,  etc.,  R  Co.  e.  Shaft,  19  lb. 


^dbvGoo^lc 


604       CINCINNATI,    HAMILTON,   ETC.,   R.    00.   V.    JONES. 

629.  And  it  ia  the  CDmpuij'B  duty  to  erect  and  mftinttdo  suitable  fences  and 
guards  to  prevent  domestic  animals  from  passing  over  or  through  Ibe  depot 
{^rounds  oa  to  the  track,  beyond  the  limits  of  euch  grounds.  Kobe  e.  No. 
Pac.  R.  Co.,  infra,  p.  S88. 

At  Oroming  of  Public  Strttl  in  OUy  or  Town, — Long  •.  Central  Iowa  R.  Co„ 
19  lb.  S41i  I.  &  a.  N.  a  Co.  t>.  Cocke,  23  lb.  229.  Blanford  e.  H.  &  Bt. 
L.  R.  Co..  89  lb.  266. 

Where  Publie  ^ghaay  Oromng  tA«  TVocit  ha*  &wn  Abandrnttd  /or  Thir^ 
r«iir«.— Louisville,  etc.,  R.  Co.  v.  Shanklio,  19  lb.  S52. 

Al  a  Station  in  the  Countrg  not  toithin  tho  Limit*  of  PlaUtd  Oitf,  Taen,  or 
Ftfiapa.— Chicago,  etc.,  H.  Co.  r.  Dumser,  19  lb.  B4S. 

The  railroad  companf  is  not  bound  to  fence  its  track  when  b;  so  doing  it 
would  exclude  uivau)  proprietor  from  passage  to  the  higbwaj.  Croje. 
Louisville,  etc.,  R.  Co.,  IB  lb.  808. 

A  track  not  required  to  be  fenced  on  i 
opposite  side,  Wabash,  etc.,  R.  Co.  c.  1 
Co.  c.  Leak,  18  lb.  621. 

The  companyis  not  bouDd  to  fence  road  at  poiut  where  switch  leaves  maJii 
Tond  leading  to  mill,  grain -elevator,  or  the  like.  Evansville,  etc.,  R.  Co.  e. 
Willis,  19  lb.  665;  Lake  Brie,  etc.,  R.  Co.  c.  Knead le,  19  lb.  668. 

Sarden  qf  Pro<)f  at  to  Obligation  to  Fenee. — Burden  of  proof  iion  the  corn- 
pan;  to  sfaon  that  it  is  not  bound  to  fence  at  a  certain  poiat.  Atchison, 
etc.,  R.  Co.  fi.  Shafts  19  lb.  539;  Louisville,  etc.,  R.  Co.  c.  ffhanklin.  19  lb. 
662;  Lake  Erie,  etc.,  R.  Co.t.  Kneadle,  19Ib.568;  lQdtaaapolis,etc.,  R.  Co. 
e.  Liodley,  11  lb.' 495;  Cincinnati,  cIc.B.  Co.  e.  Ford.  IS  lb.  671;  Mo.  Pac 
R.  Co.  e.  Dunham,  infra,  p.  630.  The  burden  isalsoupon  the  company  to  show 
that  the  road  could  not  have  been  fenced  at  the  point  when  the  animals  were 
killed.  Louisville,  etc.,  R.  Co.  e.  Clark,  19  lb.  628;  Ft.  Wajne,  etc.,  R;  Co. 
e.  Herbold,  98  lb.  221. 

Burden  of  Proof  that  Boad  V!<u  JJrfeMti. — Burden  of  proof  that  the  road 
was  not  fenced,  or  securely  fenced,  at  the  place  of  the  accident  is  on  plain- 
tifi.  The  company  must  then  show  that  it  was  not  bound  ti  fence  there. 
Evansville,  etc.,  R.  Co.  e.  Willis,  19  lb.  6Q5;  Lake  Erie,  etc.,  R.  Co.  e. 
Kneadle,  18  lb.  GS8;  Indianapolis,  etc.,  R.  Co.  e.  Lindley,  II  lb.  499;  Union 
Pac.  R.  Co.  o.  Dycbe,  11  lb.  427;  Evansville,  etc.,  B.  Co.  o.  Mosier,  22  lb.  669. 

Siffftcienei/  qf  Pence. — The  company  is  only  bound  to  erect  a  fence  reason- 
ably aufflcient  to  prevent  live-stock  coming  upon  the  track.  Shellsbarger  •. 
Chicago,  etc.,  R.  Co.,  19  lb.  627. 

Wire  Fence  Si^leient  in  Minnetota. — The  construction  of  a  wire  fence  ia 
held  to  be  a  sufficient  compliance  with  the'fence  laws  of  Minnesota,  U^ver- 
son  t.  Minneapolis,  etc,  R.  Co.,  19  lb.  626. 

Jfiohiffon  Fence. — In  Michigan,  the  company  may  place  gates  and  bars  in  a 
fence  whenever  it  deems  it  advisable.  Hayt  e.  Detroit,  etc.,  R.  Co.,  19  lb, 
827. 

ifiMauri  Fence. — A  post  and  plank  fence  four  and  one  half  feet  hieh  is  a 
lawful  fence  within  the  meaning  of  the  4Bd  Section  of  the  Railroad  Law  of 
Uimouri.     Chicago,  etc.,  B.  Co.  c.  King,  80  lb.  6S2. 

Sepair  of  Fmeei. — The  company  is  bound  to  use  reasonable  care  to  keep  its 
fences  in  repair.  Carey  o.  Chicago,  etc.,  R.  Co.,  20  lb.  469;  Clardy  f.  St. 
Louis,  etc.,  R.  Co.,  7  lb.  GG5;  Varcoc.  C.  M.,  etc.,  R.  Co.,  111b.  419;  Han- 
nibal, etc..  R.  Co.  e.  Rutledge,  19  lb.  669. 

BeaeonabU  Time  in  wAk&  to  Sepair. — A  rulroad  company  is  entitled  to  a 
reasonable  time  after  it  discovers  its  fences  to  be  out  of  repair,  or  after  it 
oould  in  the  exercise  of  reasonable  diligence  have  made  the  discovery,  in 
which  to  make  the  Decessary  repairs,  Clardy  v.  St.  Louis,  etc.,  R.  Co.,  7 
lb.  655;  H.  4  St.  J.  R.  Co.  c.  Morris,  19  lb.  660;  Case  v.  St.  Louis,  otc.i  R. 
Co..  13  lb.  664 ;  H.  &  St.  J.  R.  Co.  r.  Rutledge,  19  lb.  660. 


^d  by  Google 


KILLING   STOCK — BBIDGE— FENCE.  506 

SegUgmtee  ir^erredfram  Maintainiiig  D^eUive  F^uit.—To  allow  b  pfttent  de- 
fect ID  afeacs  to  remua  uofixed  for  two  weeks  ia  preBumptive  evidenoo  at 
negligrace.  Varcov.  CbicHgo,  etc.,  R.  Co.,  11  lb.  419.  See,  also,  B.  SsO. 
R.  Co.  V.  Bchultz,  23  lb.  311;  Jebb  e.  Chicago&G.  T.  R.  Co.,  wyVa. 

Where  CattU  break  through  F'ence. — The  compan;  is  onl;  bound   to  tus 

E roper  diligence  to  keep  its  fences  in  repair.  If,  in  spite  of  this,  cattle 
reak  through,  the  uompany  ii  not  liable.  Cue  v.  St.  Louis,  etc.,  R.  Co., 
IS  lb.  CQ4. 

Where  Fence  U  Washed  away  bj/  Flood. — The  company  is  in  fault  in  not  re- 
Btoring  within  two  months  fences  washed  away  b;  a  flood.  Fritz  r.  Kansas 
City,  etc.,  R.  Co.,  13  lb.  558. 

Where  Fenees  are  Throun  Doum  bj/  Strangeri. — When  Ibe  company  uses 
diligent  effort  to  maintain  fences,  but  strangers  throw  them  down,  the  com- 
pany is  Dot  liable  for  injuries  to  cattle  occasiODed  In  consequence.  Ho.  Pac. 
R.  Co.  o.  Walthers,  IS  lb.  662. 

OatUegtiaTdt—Duty  to  Conetract. — The  railroad  compaDj  ia  bound  to 
construct  cattte-guards  as  agunat  cattle  trespassiog  and  eatraya.  Watier  e. 
Chicago,  etc.,  R.  Cr).,.13  lb.  582. 

SiLffieUnoy  of  Cuiiie-guarde.—Tbej  must  be  sufficient  to  preveat  ingress  and 
egress  of  animals  from  premises.  Hu.  Pac.  R.  Co.  v.  Hanson,  18  lb.  640. 
And  must  prevent  cattle  from  straying  into  fields  and  JDJuring  crops.  Uo. 
Pac  R  Co.  0.  Morrow,  19  lb.  6S0. 

Intuffieient  Oattle-guarda— Burden  of  Proof. — The  burden  of  proof  !s  on  the 
owner  of  the  animal  to  show  by  a  preponderance  of  testimooy  that  the  cattle- 
.guard  was  not  sufflciL'nt  to  turn  back  and  restrain  such  cattle,  horses,  and 
other  beasts  or  animals  as  such  structures  are  designed  to  restrain.  Smesd 
V.  Lake  Shore,  etc..  R.  Co..  23  lb.  241. 

Where  th^  mutt  be  Oorutrueted. — Cattle-guards  must  be  put  in  at  crossiugs 
of  public  highways  and  other  public  places,  so  as  to  "  enclose"  ibe  track. 
Atchison,  etc.,  R.  Co.  v.  Shaft,  19  lb.  529;  Ft.  Wayne,  etc.,  R.  Co.  «.  Her- 
bold  23  lb.  321 ;  Welty  o.  L  &  V.  R.  Co.,  24  lb.  871. 

Where  a  railroad  ia  constructed  over  unimproved  lands  which  are  after- 
wards improved,  cattle-guards  must  be  constructed.  Heskett  e.  Wabash, 
«tc.,  R.  Co.,  18  lb.  549. 

In  Minneeota,  the  company  is  tKnind  to  make  cattle-guards  at  wagon- 
croiaingH  in  towns  and  cities  as  well  as  in  the  country.  Oreely  e.  St.  Paul, 
etc..  R.  Co..  19  lb.  559. 

Interteetwig  Sighteaye.—T^iB  company  is  bound  to  put  in  and  malntaiu 
cattle  guards  at  intersecting  highways.  Wabash,  etc,  R.  Co.,  «.  IVetts,  10 
lb.  601. 

Uhneeeetarj/  at  Farm-erottingi. — Neither  cattle-guards  nor  cross-fences 
need  be  constructed  at  farm-croseioM.  Ho.  Pac.  R.  Co.  e.  Fitterling,  30  lb. 
4M. 

Manner  of  Oonitruetion. — Cattle-suBrds  must  extend  the  whole  width  of 
the  right  of  way  at  the  first  poim  where  they  will  not  interfere  with  the* 
necessities  or  conveniences  of  the  public  and  the  company.  Ho.  Pac.  R.  Co. 
t>.  Hanson,  13  lb.  G40;  Heskett  e.  Wabash,  etc    R.  Co.,  18  lb.  549. 

A  pit  under  the  track  is  not  a  sufficient  cattle-guard.  Ho.  Pac  R,  Co.  e. 
Hanson,18  lb.  640;  Hackette.  Wabsah,  etc.,  R.  Co.,  18  lb.  M9; 

Bemovaioj^Iee  and  Snow  frota  CaUle-guarde. — Reasonable  care  and  diligence 
do  not  require  a  railway  company,  unless  under  exceptional  and  extraordinary 
circustances,  to  remove  the  natural  accumulation  of  snow  and  ice  from 
cattle-guards.     M.  &  St.  L.  R.  Co.  e.  Blais,  22  lb.  671. 

Injuriet  to  AnimaU  at  Crottinge— Signal  on  Approaching  OroetiTig. — The 
company  is  bouud  to  use  ordinary  care  and  diligence  as  to  cattle  rightfully 
on  the  highways  at  a  public  crossing.  Lane  o.  Kansas  City,  etc,  R.  Co.,  IS 
lb.  936;  Ala.  G.  B.  R.  Co.  o.  HcAlpine  IS  lb.  644. 


^d  by  Google 


S06      OINOINITATI,  HAHILTON,  BTO.,  B.  00.  V.  JONES. 

The  comMD7  is  bqand  u  to  tnimala  to  gl-n  signat  on  ftpproachlng 
cTouiog.  Goodwin  v.,  Chicago,  etc.,  R.  Co.,  11  lb.  4dO.  In  order  to  fix 
npon  the  companj  the  Btatutort  linbiHt;  foj  killing  Gsitle  at  a  crouiag,  tt 
must  be  alionn  that  the  sigoals  were  aot  given,  unA  that  the  killiag  re- 
sulted thereFrom.  If  this  is  not  shown,  other  evidence  ol  negligence  is  ia- 
admiuible.     Braxton  c.  Hannibal,  elc,  R.  Co.,  1»  lb.  iU. 

An  instruction,  that  if  the  effect  of  giring  the  statutory  signal  on  approach- 
ing the  crossing  was  to  drive  the  stock  towards  the  track  the  giving  of  the 
signal  was  negligent,  is  erroneous.  Manhattan,  etc.,  R.  Co.  e,  Stewart,  IS 
lb.  903. 

In  Miumiri,  the  engineer  approaching  crossing  is  not  bound  to  aound  both 
bell  aad  whistle.  Either  is  sufficient.  Kansas  City,  etc.,  R.  Co.  v.  Turner, 
19  lb.  S06. 

The  CDmpany  may  l)e  liable  for  an  accident  to  cattle  occasioned  by  the  en- 

E'neer  failing  to  observe  their  approach  to  crossiug.  Chicago,  etc.,  ft.  Go.e. 
endig,  IS  lb.  483. 

The  company  is  liable  for  an  injury  to  cattle  caused  by  unnecessarily  plac- 
ing wing-feuces  and  cattle-pit  fifty  feet  from  highway  crossing,  Louisville, 
etc,  R.  Co.  e.  Porter,  SO  lb.  446. 

CaUU  Killed  at  Croiting  by  nand--ear. — When  cattle  are  killed  at  a  cross- 
ing by  a  hand-car,  the  speed  uf  which  was  not  dimioisiied  by  reason  of  a  de- 
fective brake  until  too  lale  lo  avoid  the  injury,  the  company  was  held  liable. 
Uo.  Pac.  R.  Co.  e.  King,  IS  lb.  529. 

Animali  Killed  tehen  Running  at  Large, — When  animals  are  killed  at  cross- 
ingthrough  the  negtigeni^e  of  the  company,  the  owner  may  recover 
damages,  though  he  lias  suffered  them  to  run  at  large  in  violation  of  herd- 
law.     Ala.  G.  8.  R.  Co.  e.  McAlpine,  10  lb.  544. 

When  Grotiingi  at  Highaayt  5iy^««n(.— When  crossings  at  highways  are 
so  con  struct  ed  that  the  public  in  vehicles  can  pass  with  reasonable  safety, 
such  crossings  are  sufficient  to  protect  the  company  from  liability  for  killing 
stock.     Meeker  n.  Chicago,  etc.,  R.  Co.,  IS  lb.  477. 

injuries  to  Cropt. —  The  owner  may  recover  for  injury  to  his  crops,  and  also 
for  expense  incurred  inatlempting  to  protect  them  and  prevent  further  injury, 
occasioned  by  failure  of  the  company  to  construct  cattle- guards.  St.  Louis, 
etc.,  R.  Co.  V.  Rilz,  19  lb.  611;  Raridon  o.  Cent.  Iowa  R.  Co.,  19  lb.  615; 
Mo.  Pac.  R.  Co.  e.  Morrow,  18  lb.  630. 

When  the  company  entere  on  a  faxm  and  takes  down  existing  fences,  and 
straying  cattle  injure  crops  before  new  fences  are  erected,  the  company  is 
liable.     Pound  e.  Port  Huron,  etc.,  R.  Co.,  IB  lb.  640, 

The  company  is  not  liable  tor  injury  to  crops  occasioned  by  failure  to  re- 

E air  cattle-guards  constructed  originally  at  land-owner's  request,  and  kept 
y  it  in  repair  for  thirty  years.     Vicksburg,  etc.,  R.  Co.  e.  Dixon,  19  lb.  617. 

Damaoss.  —  What  may  be  laeluded  in  the  D'unagee.—Jn  an  action  for  injury 
to  crops  caused  by  failure  to  erect  cattle-guards,  plaintiff  may  include  in  the 
damages  the  value  of  his  services  in  driving  out  and  herding  the  trespassing 
stock.     St.  Louis,  etc.,  R.  Co.  e.  Sharp,  18  lb.  695. 

Oood  Qiuilitiee  of  Cow. — Good  qualities  of  cow  affecting  its  market  value 
may  be  shown  to  increase  the  damages.  St.  Louis,  etc.,  R.  Co.  n.  Dudgeon. 
18  lb.  649. 

Expenteof  Curing  Injured  Animal. — ^The  owner  of  live-stock  wrongfullyin- 
jared  may  recover  such  reasonable  expenses  as  were  necessarily  incurred  in 
taking  care  of  and  curing  the  injured  stock.  I.  &  Q.  N.  R.  Co.  o,  Cocke, 
38  lb.  326. 

Attomty't  Fee  may  he  Ineluded. — The  legislature  may  anthoriie  the  re- 
covery of  an  attorney's  fee  in  suits  against  railroad  companies  for  killing 
cattle  occasioned  by  failure  to  fence.  Peoria,  etc.,  R.  Co.  v.  Duggan,  20  lb. 
489. 


^dbyGooglc 


KILLING  STOCK— BEIDOB— FENCE.  607 

TJD<ler  Kaiuas  (tock  law,  an  attorney's  foe  may  be  recovered.  St  Louis, 
etc..  R.  Co.  t>,  ByroD,  3  lb.  651. 

When  animal  is  injured  through  negligeace  and  failure  to  fence,  the  owner 
may  recover  compensation  and  attorney's  fee.  0.  B.  U.  P.  R.  Co.  o.  Nichols, 
%  lb.  648. 

Aaetmtent  of  Damaga  In/  Arbilraticn. — Attomto^t  Fti. — A.n  act  of  the 
legislature  providing  that  wtiere  stock  is  killed  or  injured  by  railroads,  the 
damages  shall  be  assessed  by  arbitration,  and  if  either  party  refuses  to  abide 
by  the  award,  and  takes  the  case  before  the  courts,  ana  shall  not  recover  a 
more  favorable  judgment  than  the  award,  such  party  shall  be  assessed  a  rea- 
8onal>le  attorney's  for  the  opposing  litigant,  is  unconstitutional.  St.  Louis, 
etc.,  R.  Co.  «.  WillianiB.  infra. 

Damngetfor  Failure  to  Fenet  and  LoeaU  Dspot. — Bee  Louisville,  etc.,  R.  Co, 
e.  Buraner,  34  lb.  641. 

Samagei  eamutt  indade  InterM. — Recovery  can  be  had  only  for  the  value 
of  the  Htock  at  the  time  of  killing.  No  interest  can  be  added.  Uounton, 
etc.,  R.  Co.  a.  Huldrow,  6  lb.  S80;  Atchison,  etc.,  R.  Go.  d.  Gabbert,  23  lb. 
6S1. 

Oontrcary  Vteu. — Interest  may  he  Induded. — The  verdict  may  inclnde  the 
value  of  the  stock  killed,  with  interest  thereon  from  the  date  of  the  loss  to 
the  time  of  the  trial.  Ala.  G.  8.  R.  Co.  o.  HcAlpiue  (Ala.),  23  lb.  603 ;  B.  & 
O.R.  Co.  e.  Schultz,  33It>.  211;  Jebbn.  Chicago  &  Grand  Trunk  R.  Co.,  in/ra. 

Jfeature  of  Hamngu  for  Kiliing  Cow. — The  measure  of  damnges  for  killing  a 
cow  is  thfl  difference  between  her  value  alive  and  that  of  the  beef. — Roberta 

e.  Richmond,  etc.,  R.  Co.,  20  lb.  478. 

Ewetme  Damage*. — When  the  juvy  gives  excessive  damages  for  killing 
cattle,  the  court  may  require  a  rem'MittiT,  or,  in  default  thereof,  grant  a  new 
trial.     Bt.  Louis,  etc.,  R.  Co.  «.  HagHo,  19  lb.  440. 

OoMeqiientinl  Damages. — Consequential  damages  resulting  from  fright  to 
animals,  not  caused  by  actual  collision,  or  any  negligence  or  wilful  miscon- 
duct on  the  part  of  the  servants  of  the  company,  are  not  recoverable  under 
Nebraska  statute.     B.  &  M.  R.  Co.  c.  Shoemaker,  23  lb.  566. 

Valut  of  CaUie  Killed  Dedueted  from  Damage*.— Where  the  owner  of  the 
cattle  killed  uses  or  gives  carcass  away,  the  value  thereof  will  be  deducted 
from  the  damages.     Case  v.  Bt.  Louia,  etc.,  R.  Co..  18  lb.  S64. 

When  Exemplary  Damage*  not  Seconerable. — Where  the  killing  is  done 
through  the  wilful  and  wanton  negligence  of  the  servants,  exemplary  damagea 
are  not  recoverable.     Chicago,  etc.,  R.  Co.  e.  Jarrett,  II  In.  4IJB. 

JDovUe  Damage*. — Jftswuri  Lauinot  UheonitilutianaL — The  Missouri  lawim- 

r)sing  a  penalty  of  double  damages  for  killing  cattle  is  not  unconstitutional. 
Iiillia'i  t>.  Mo.  Pac.  R.  Co..  24  lb.  869;  Spealmnn  v.  Mo.  Pac.  R.  Co..  3  lb. 
63S.  See.  also,  Stanley  t.  Mo.  Pac.  R.  Co.,  28  lb.  2S0;  Mo.  Pac.  R.  Co.  b. 
Humes  (U.  8.),  33  lb.  BB7. 

When  Railrond  not  LiiAle. — A  railroad  is  not  liable  in  double  damages 
when  the  stock  is  killed  in  an  attempt  to  extricate  it  from  a  trestle.    Seibert 

f.  Missouri,  etc..  R.  Co.,  6  lb.  684. 

Defectite  CattU-guard. — Double  damagea  may  be  recovered  for  injury  to- 
cattle  caused  by  defective  cattle-guard.   Horiarty  «.  Central  R.  Co.,  90  lb.  488. 

Plaintiff  cannot  recover  interest  on  value  of  animal  killed,  besides  double 
damages.  Mo.  Pac.  R.  Co.  v.  Wade,  19  lb.  566;  Brentner  v.  Chicago,  etc., 
R.  Co.,  19  lb.  448. 

Arkan»ai  Statute, — Tn  Arkansas  the  statute  giving  double  damages  for  stock 
killed  by  railroad  trains  where  the  stock  is  not  posted  as  required  by  the 
statute,  does  not  except  from  the  benefit  of  that  clause  the  owner  who  has 
actual  notice  of  the  killing  without  the  posting,  and  the  court  cannot  except 
him.  It  is  not  settled  by  any  practice  whether  double  damsges  should  be 
1  by  the  jury,  or  only  single  damages,  to  be  doubled  by  the  court. 


^d  by  Google 


608       CINCINNATI,  HAMILTON,    ETC.,    B.   00.   V.    JOKES. 

Neither  raod«  would  be  reversed  in  the  aupieme  oourt.    Memphis,  etc,  R. 
Go.  V.  Carkj,  20  lb.  6QS. 

Petition  for  double  damages  will  not  prevent  a  recovery  of  siogle  damages. 
Scott  V.  8t.  Louis,  etc..  R.  Cq.,  13  lb.  6B1. 

Right  of  Attifnee  to  Berover  DotiiU  Damage*. — The  assienee  of  a  right  of 

actioD  against  a  railroad  coir '--'■": .--' c i_i...  _  t.t 

the  statutory  provisions  as  ti 

the  same  ehoniug  as  the  original  o 

R.  Co„  vffra. 

Evidence. — What  it  ^dmiMiibU  to  prvee  Valutof  8ta^  KHUd.—EyiAence 
of  witnesses  familiar  with  stock  of  the  sort  killed  is  admissible  to  prove 
value.  Smith  «.  Indianapolis,  etc.,  R.  Co.,  7  lb.  633;  Atchison,  etc,  R.  Co. 
e.  Gabbert,  22  lb.  621. 

To  Bebut  Preaumption  of  Ifegligenee. — Where  statute  declares  the  killing  of 
Stock  prima  faeU  evidence  of  negligence,  evidence  of  servants  of  the  defend- 
aut  alone  is  sufficient  to  rebut  the  presumption.  Ky.  Cent.  R.  Co.  e,  Talbot, 
7  lb.  585. 

To  thew  ^eed  of  Train  by  Sound. — In  an  action  for  damages  for  negligently 
kitliog  the  stock  of  plaintiff  by  the  defendant's  running  its  train  at  too  great 
epeed,  the  testimooy  of  witnesses  as  to  the  sound  heard  by  them  wbile  ia 
the  vicinity  of  the  moving  train  is  admissible  on  the  question  of  the  speed 
of  such  train.  The  weight  of  such  evidence  is  for  the  jury  to  determine. 
Van  Horn  e,  Burliagton,  etc.,  R,  Co..  7  lb.  691, 

To  Rebut  Teitimonj/ that  Train  could  not  be  Slopptd. — After  the  engineer  has 
testified  for  defendant  that  a  mule  killed  by  the  train  was  so  close  when  seen 
that  the  engine  conld  not  be  stopped,  testimony  is  admissible  in  rebuttal  to 
chow  that  it  ran  some  distance  along  the  road-bed  before  it  was  struck,  Ross 
t.  Natchez  R.  Co.,  SO  lb.  690 

Toun  Ordinaiut.—Whea  plaintiff  allowed  her  horses  to  run  at  large,  town 
ordinance  prohibiting  this  is  admissible  in  evidence.  Van  Horn  n.  Burling" 
ton,  etc.,  R.  Co..  7  lb.  SSI. 

Tatittumy  of  Fireman  at  to  Stepping  hi»  Train. — A  locomotive  fireman  on 
the  train  in  question,  with  four  years'  experience,  may  give  his  opinion  as  a 
witness  on  the  question,  whether  or  not  there  wss  time  to  stop  the  train 
within  a  certain  distance  of  an  animal  on  the  track.  Qrimmell  «.  Chicago, 
■etc.,  R.  Co.,  infra. 

To  thne  Condition  of  Fence. — Evidence  to  show  the  condition  ofafenceat 
the  point  where  stock  was  killed,  and  also  furnishing  reasonable  inference 
that  stock  came  on  the  track  at  that  point,  is  admissible.  The  first  point 
may  be  proved  before  the  second  in  the  discretion  of  the  court.  Mo.  Pac. 
B.  Co.  D.  Wslthers,  IS  lb.  063. 

Plaee  of  SiUing  Animal.—la  an  action  against  a  railroad  company  for 
double  damages  for  killing  stock,  proof  that  the  animal  was  killed  at  a  point 
«  quarter  of  a  mile  from  the  depot,  beyond  the  switch  limits,  where  the  road 
was  fenced  on  one  side  but  not  on  the  other,  is  prima  fade  sufficient  to  show 
that  the  killing  did  not  occur  within  the  limits  of  an  incorporated  town  or 
■at  a  public  crossing.     Lepp  e.  St.  Louis,  etc.,  R.  Co.,  29  lb.  242. 

To  thaw  Stock  were  Vnlavfully  SunniTig  at  Large. — Evidence  is  admissible 
to  show  that  the  stock  were  not  permitted  under  the  law  to  run  at  large  in 
tbetown  where  the  killing  occurred.  Ho.  Pac.  R.Co.  e.  Dunham,  infrn.  p.  380. 

Sfrd-lock  Jdmiuible  to  ihtne  Breed. — A  printed  copy  of  the  Herd-book  in 
which  cattle  are  entered,  and  which  is  regarded  by  persons  engaged  in  breed- 
ing cattle  as  a  standard  authority,  is  admissible  in  evidence  in  an  action  for 
damages  for  cattle  killed  by  a  train,  to  show  the  breed  of  the  cattle  so  killed. 
Euhns  e.  Chicago,  etc.,  R.  Co..  20  lb.  054. 

Hypothetical  Question  at  to  Condition  of  Animal. — In  an  action  against  a 
cmlri^  company.for  killing  a  mare,  tlieuillowiag  question  may  be  answered: 

Digitized  by  Google 


KILLINQ  STOCK — BKIOGB — FENCE.  509 

"Buppose  '  little  Uiw'  (the  mare)  was  iu  as  good  condttion,  iound  in  wind 
and  Hmb,  at  the  time  she  wu  killed  ia  October,  1884,  if  she  was  killed  then, 
as  she  was  whea  you  knew  her  last,  then  I  will  ask  you  toatate  what  was  her 
fair  market  value;"  especially  so  wben  counsel  apprise  the  court  that  tf  they 
do  not  maintain  the  hypotbeeis  upon  which  the  question  is  put,  the  evidence- 
Bbatt  be  stricken  out.     Cincinnati,  etc..  R.  Co.  v.  Joiiu<i,  lupra,  p.  491. 

What  U  not  AdmUtibU. — Expert  Eridenet  <u  to  Neeettity  af  Cattle-gi.ard. — 
Expert  evidence  ia  not  admissible  that  a  cattle-firuard  was  necessary  at  a  cer- 
tain point.  Amstein  v.  Gardner,  16  lb.  085;  Bt.  Louis,  etc.,  R.  Co,  g.  Ritz, 
ISlb.  6ll. 

Opinion  at  to  whethar  Soad  ii  Properlp  Fenetd. — Witness  cannot  state  opin- 
ion as  to  whether  the  road  is  properly  fenced  at  B  certain  point.  Indiaua, 
etc.,  R.  Co.  e.  Hall,  19  lb.  062.  It  ia  error  to  permit  a  witness,  who  shows 
no  other  qualification  than  that  he  had  seen  the  fence,  to  give  to  the  jury 
bis  opiniou  as  to  the  sufficiency  of  the  fence  to  turn  stock.  B.  &  O.  R.  Co, 
«.  Schultz,  32  lb.  B79;  s.  c,  33  lb.  811. 

Opinion  at  to  Sufflcieney  of  Cattle  guard. — It  is  error  to  allow  a  witness  to 
give  his  opinion  as  to  whether  or  not  a  cattle-guard  was  sufficient.  Smead 
V.  Lake  Shore,  etc.,  R.  Co.,  33  lb.  241, 

Immaterial  that  Animait  leere  oti  Trade  at  other  TVmei. — In  an  action  against 
a  railroad  company  to  recover  damages  for  the  killing  of  stock  caused  by 
defective  fences,  plaintjfi  cannot  show  that  others  of  hia  stock  had,  on  sev- 
eral occasions,  months  before,  been  seen  on  defendant's  right  of  way.  Jebt> 
c.  Chicago  &  G.  T.  H.  Co.,  ant». 

Space  mthin  whieh  Trains  are  Stopped. — A.  witness  is  incompetent  to  testify 
as  Co  tbe  space  within  which  be  hns  seen  trains  stopped,  when  he  la  nnabl« 
to  state  the  speed  of  trains  at  the  time.  Louisville,  etc,  R.  Co.  «.  Marriott, 
19  lb.  509. 

To  Exetue  Bepairing  Fence  already  Erected. — In  an  action  to  recover  damages 
for  injuries  to  stock  caused  by  the  neglect  of  the  company  to  keep  a  fence 
and  gate,  which  it  had  erected,  in  repair,  evidence  to  prove  that  the  erec* 
tion  of  a  fence  or  cattte-guards  at  the  point  in  question  would  endanger  the 
lives  of  the  company's  employees  and  inconvenience  the  public  in  transact- 
ing business  with  the  company,  is  inadmissible,  as  immaterial  to  tbe  issue. 
Chicago,  etc.,  R.  Co.  c.  Quertin,  34  lb.  385. 

Pedigree  of  Animal. — A  paper  purporting  to  be  the  pedigree  of  an  animal 
is  inadmissible  as  evidence  to  show  that  ihe  animal  was  a  thoroughbred,  and 
therefore  of  great  value,  in  an  action  to  recover  damages  for  killing  it. 
Wabash,  etc.,  R.  Co.  e.  Hamilton,  26  lb.  294.  But  see  Euhn«  t.  Chicago, 
etc..  R.  Co..  SO  lb.  854.  • 

General  Reputation  of  Animal  at  Race  Hone. — Evidence  of  the  general 
reputation  of  a  mare  among  horsemen  and  turfmen,  with  reference  to  her 
being  rattle-headed  or  disposed  to  break  when  racing,  is  inadmissible.  Cin- 
cinnati, etc.,  K,  Co.  p.  Jonea,  ntpra,  p.  481.  ' 

BUnainff  Whittle  at  Evidence  of  Care. — The  burden  of  showing  care  placed 
on  a  railroad  company  under  the  statute  by  proof  that  its  train  killed  an 
animal,  is  not  met  by  evidence  that  the  whistle  was  heard  blowing  at  the  time 
of  the  occurrence.     Mobile,  etc.,  B.  Co.  e.  Date,  20  lb.  051. 

Oireamtiantial  Evidence. — What  is  sufficient  circumstantial  evidence  that 
the  animal  was  killed  by  the  nulroad  company.  See  Union  Pac.  R.  Co.  e. 
Harris.  11  lb.  481.    * 

Ecidence  aitoCharaetwcf  Fence. — Evidence  as  to  Character  of  fence  must 
be  confined  to  at  or  about  the  time  of  the  injury.  Brentner  v.  Chicago,  etc., 
R  Co.,  7  lb.  574. 

When  it  u  Immaterial  when  Engineer  firtt  late  Cattle. — Where  it  is  undis- 
puted that  the  engineer  after  discovering  tbe  cattle  on  the  track,  had  time 
to  stop  the  trun  betore  the  tMscident,  it  Is  not  error  to  exclude  evidence  sa  to 


^d  by  Google 


610       CINOINNATr,    HAMILTON,    ETC.,    E.   CO.   V.   JOHES. 

the  precise  time  wlien  he  flnt  discoTered  the  ckttle.    OrimmtU  «.  Chicago, 
«[C,  H.  Ou.,  vt/ra, 

V&A<niQB,.—Jaritdietio7t. — In  action  for  killiDc  cattle  caused  b;  failure  to 
fence,  Bction  must  be  broU);hIi  in  the  count;  where  the  accident  occurred. 
Terre  Haute,  etc.,  B.  Co.  e.  Pierce,  ISIb.QSl;  Croy  c. Louisville,  etc-  R.  Co., 

19  lb.  eoa 

When  Claim  it  Barr«d, —Claim  is  barred  where  it  is  not  presented  and  suit 
begua  until  within  six  months  of  the  killing.  Ala.  Q.  B.  R.  Co.  e.  Eillian. 
18  lb.  648.  When  cLtum  for  damages  for  killing  cattle  is  presented  within 
aix  muntbs  of  injur;  it  ii  not  necesBBr;  to  briDg  suit  within  dz  months. 
East  Tenn.,  etc.,  H.  Co.,  o.  Ba;liBs,  19  lb.  480. 

Benkt  af  Notiet  on  Station  Ageiu. — Service  of  notice  on  "  station  agent" 
is  sufficient  under  Iowa  Code  to  entitle  part;  to  double  damages.     Bchlen- 

Kner  c.  Chicago,  etc.,  K.  Co.,  19  lb.  623.  Bee,  also,  Bmith  p.  Chicago,  etc., 
Co.,  18  lb.  034;  Sohlengeaer  c.  Chicago,  etc.,  R.  Co.,  13  lb.  649;  Ho. 
Pac.  R.  Co.  e.  Morrow,  ir^ra. 

LegitbittiTt  may  Authorite  Beantry  of  Attonwy'i  .Pta.^The  legislature  may 
authorize  the  recover;  of  an  attorne;'sfeein  suits  against  railroad  companies 
for  killing  cattle  occasioned  by  failure  to  fence,  and  no  notice  need  be  given 
of  intention  to  cUlm  attorney's  fee.  Peoria,  etc.,  R.  Co.  v.  Duggan,  20  lb. 
4SS. 

(iuoting  to  Jury  Inap^etAU  fitotutei. — Quoting  to  jury  statutes  inapplicable 
to  the  case,  ^d,  not  to  have  misled  them.  Kansas  City,  etc.,  R.  Co.  e. 
Har,  13  lb.  600. 

^quiiUet  ^  Claim  /or  Damaga*. — Claim  for  damages  must  be  in  writing, 
and  be  presented  to  an  officer.  It  is  not  sufficient  to  present  it  to  "  station 
boss."     Ala.  a.  B.  R.  Co.  c.  Killisn,  18  lb.  648. 

Notice  and  Affidavit  may  be  Served  aithout  Beading. — Notice  and  affidavit 
of  killing  of  stock  may  be  served  on  an  officer  or  sgent  of  the  company  by 
delivery  without  reading  them.    Brenmer  e.  Chicago,  etc.,  R.  Co.,  19  lb.  448. 

Pleadiko. — Averment  that  Boad  wu  Unfeneed,  eU. — Where  petition  avers 
Uat  road  was  urifeoced  and  that  defendant  had  a  right  to  fence  at  the  spot, 
it  will  be  construed  to  describe  absence  of  fence  caused  by  destruction  or 
removal.     Fritz  r,  Kansas  City,  etc..  It.  Co.,  18  lb.  658. 

Complaint  averring  that  the  animal  entered  on  the  track  at  a  point  where 
it  was  not  securely  fenced  is  sufficient.  Louisville,  etc.,  R.  Co.  e.  Overman, 
13  lb.  «4e. 

Where  complaint  alleges  that  cattle  strayed  on  the  track  where  there  waa 
DO  fence,  thtra  need  not  be  allegation  that  the  failure  to  fence  caused  the  in- 
jury. -  Turner  e.  Mo.  Pac.  R.  Co.,  13  lb.  653. 

It  is  sufficient  to  allege  in  complnint  that  the  place  where  the  stock  entered 
upon  the  track  "was  not  fenced."  Louisville,  etc.,  R.  Co.  n.  Sliankliii,  IB 
lb.  553.  See,  al9o,  Kronski  t.  Mo.  Pac  It.  Co.,  13  lb.  653;  Chuhbuck  r.  Han- 
nibal, etc.,  R.  Co,  13  lb.  653;  Mo.  P«c.  It.  Co.  e.  Campbell,  80  lb.  051. 

In  an  action  for  killing  plaintiffs  hogs,  the  complaint  must  state  that  the 
bogs  come  on  the  track  at  a  point  where  defendant  was  bound  b;  law  to 
fence,  but  failed  to  do  so.  St.  Louis,  etc.,  R.  Co.  e.  Aaher,  19  lb.  093;  Bt. 
Louis,  etc..  R.  Co.  e.  Nance,  Ifl  lb.  594. 

Where  the  complaint  is  otherwise  sufficient,  it  need  not  state  that  the  road 
could  have  been  fenced  at  the  point  where  the  stock  entered  upon  it.  Louis- 
ville, etc.,  R.  Co.  e.  Hall,  19  lb.  597. 

Averring  that  the  road  was  not  fenced  at  the  point  where  the  animals  got 
upon  it,  and  at  the  place  where  they  were  killed,  is  sufficiently  definite. 
Louisville,  etc.,  R.  Co.  e.  Harrigan,  19  lb.  598. 

Meaning  of  "  Securely  Feneed." — An  allegation  that  a  railroad  was  not  se- 
curely fenced  will  be  held  to  mean  that  it  was  not  enolased  with  a  good  and 
lawful  fence.    Ho.  Pac.  R.  Co.  v.  Horrow,  ii\fra,  p.  520. 


^dbyGoOglc 


KILLING  STOCK — BKLDaB — FENCE.  511 

Oomplamt  Beld  Su^Infflt.— Complaint  for  killing  cattle,  alleging  that  rail- 
road was  not  securely  fenced  iB  good.  If  the  road  could  Dot  be  properly 
fenced  at  the  place  this  is  matter  of  defeoce.'  Teire  Haute,  etc.,  R.  Co.  e, 
PeuD.,  16  lb.  G61. 

Complaint  alleging  neslige ace  in  running  train  on  the  straight  partof  track 
without  obBtructions  to  bide  caule  from  tlie  engineer's  view  and  striking  the 
same,  when  proper  care  and  vigilance  would  have  prevented  the  accident,  is 
sufficient.     Btanly  e.  Richmond,  etc.,  R.  Co.,  16  lb.  S43. 

Complaint  setting  out  ownership  of  steer,  the  fact  that  it  was  kilted  by 
negligence  of  the  company's  servants  and  the  amount  of  damages  issuffideat. 
Chicago,  etc.,  It.  Co.  v.  Kendig,  19  lb.  498. 

A  statement  is  sufficient  if  it  state  facts  which  necesaarily  imply  that  the 
failure  to  fence  caused  the  injury  complained  of.  Thomas  v.  H.  &  Bt.  J.  R. 
Co..  as  lb.  183. 

The  complaint  was  held  sufficient  in  tlie  following  cases :  See,  also.  Banister 
e.  Penna.  Co.,  19  lb.  570;  Mo.  Pac.  R.  Co,  r.  Perriquez,  19  lb.  678;  Louisville, 
etc.,  R.  Co.  c.  Argenbright,  19  lb.  604;  Louisville,  etc.,  R.  Co.  t.  Harrington, 
19  lb.  606;  Hannibal,  etc.,  R.  Co.  e.  Morris,  10  lb.  666;  Louisville,  etc.,  R, 
Co.  e.  Davis,  301b.  658;  St.  Louis,  etc.,  R.  Co.  o.  Busby,  23  lb.  679;  Roberts 
o.  Wabash,  etc.,  R.  Co..  25  lb.  298. 

In  an  action  for  killing  a  cow,  complaint  averred  that  the  animal  was 
killed  at  "  a  certain  fioiatof  onenclosed  timber  land,"  and  that  it  cameonthe 
track  at  a  point  where  tbe  company  was  bound  to  fence,  but  bad  failed  to  do 
so.  Held,  that  the  complaint  negatived  by  implication  that  the  cattle  came 
on  the  track  at  the  crossing,  or  at  a  point  within  incorporated  city  or  town. 
Mo.  Pac.  R.  Co.  V. Wade,  19  lb.  683.    Bee,  also,  Chicago,  etc.,  R.  Co.  o.  Clare, 

19  lb.  621. 

Inti0cient  Oomplaintt. — Complaint  alleging  killing  of  stock  by  defendant 
or  lesai'B  thereof,  or  some  person  unknown,  is  bad  on  demurrer.  Wabash, 
etc.,  R.  Go.  v.  Booker,  16  ib.  558. 

A  statement  is  insufficient  unless  it  alleges  that  the  stock  came  upon  the 
track  or  were  killed  in  consequence  of  the  failure  of  he  company  'to  erect  or 
maintain  lawful  fences  or  cattle-guards.    Hannibal,  etc.,  R.  Co.  t).  Hudgens, 

20  Ib.  633. 

The  statement  or  complaint  is  insufficient  unless  it  alleges  that  the  stock 
came  upon  the  track  or  were  killed  in  consequence  of  the  failure  of  the  com- 
pany  to  erect  and  maintain  lawful  fences  or  cat  tie- guards.  Hannibal,  etc., 
R.  Co.  «.  Hudgens,  30  Ib.  653. 

The  complaint  merely  stated  that  the  cattle  came  on  the  track  at  a  point 
where  the  company  was  required  by  law  to  fence  and  could  have  fenced. 
ffeld,  that,  as  it  failed  to  aver  that  the  track  was  not  fenced,  it  was  insuffi- 
cient.    Louisville,  etc.,  R  Co.  n.  Quado,  19  Ib.  595. 

FrtticrmfTom  Contributon/  Negligence  mvit  fie  Arierred. — A  complaint  charg- 
ing a  railroad  company  with  negligence  in  orijiinHting  and  allowing  fire  to 
escape  from  its  riglit  of  way,  whereby  plaintiffs  fences,  grnss,  etc.,  were 
destroyed,  is  defective,  when  unaccompanied  by  a  positive  averment  of  free- 
dom from  contributory  negligence  on  the  part  of  plaintiff.  Louinville,  etc.,  R. 
Co.  V.  Lockridge,  33  Ib.  649.    Compare  Blreet  R.  Co.  e.  Nolthetiius,  19  Ib.  191, 

GontrttttUry  Negllgeriet  mutt  be  Specially  Pleaded. — In  Donovan  s.  Hannibal, 
etc.,  R,  Co.,  26  Ib.  588,  AeM,  that  contributory  negligence  ia  a  matter  of 
defence  which  must  be  specially  pleaded,  or  no  evidence  relating  thereto  is 
admissible. 

ComplninU  htfore  Jvttieti  of  tht  Ptnm. — The  complaint  is  sufficient  if  it 

states  enongh  facts  to  inform  t-he  defendant  of  tbe  nature  of  the  plaintiffs 

action  and   is  so  explicit  that  a  judgment  thereon  will  constitute  a  bar  to 

another  action  for  the  same  cause.     Louisville,  etc.,  R.  Co.  c.  Zink,  20  Ib. 

'  M3.   The  complunt  is  not  bad  for  failing  to  aver  that  the  road  was  not  fencc^ 


^dbvGooglc. 


Ol9  PENNSYLVANIA  CO.   V.    DDNLAP. 

wbere  the  cattle  entered  upon  it,  Louiavitle,  etc,  R  Co.  o.  Argenbright, 
19  'b.  604.  Bee,  also,  Penna.  Co.  t.  Rusic,  20  lb.  692;  iDdiauapolia,  etc., 
R.  Co.  t>.  Sims,  20  lb.  653. 

DtfeetMt  Statement  Cured  by  Vardid.-~A.  defective  Btstement  is  sufficient 
after  verdict  when  the  deflcieucjr  liaa  been  supplied  bj  tbe  evideace.  Stan- 
ley B.  Mo.  Pac.  R.  Co.,  39  lb.  850;  Louisville,  etc.,  R.  Co.  «.  Harrington, 
19  lb.  60«;  Farrell  i..  Union  Trust  Co.,  13  lb.  652;  Hannibal,  etc.,  R  Co.  e. 
Morris,  19  lb.  660. 

Pleading  Liberally  Otmitnted  mhaiflrit  Atiaehed  after  Jndgmenl. — A  plead- 
ing Srst  attacked  after  judgment,  for  the  reason  that  it  does  not  Rtste  facta 
sufficient  to  constitute  a  cause  of  action,  will  be  liberally  coaatmed  in  order 
to  uphold  the  judgment.    Mo.  Pac.  R.  Co.  o.  Morrow,  infra,  p.  330. 

AmendmenU  to  Complaint. — Complaint  may  beamended  afterverdictbyal- 
legiog  that  cattle  were  killed  by  the  defendant's  train.  Baltimore,  etc.,  R 
Co.  V.  Kriger,  18  lb.  603.     Bee,  also,  Dijden  v.  Smith,  80  lb.  853. 

When  Plea  it  Bad.^A.  plea  is  bad  which  fails  to  aver  that  the  animal  en- 
tered on  the  track  at  the  station  where  the  company  was  not  bound  to  fence. 
An  averment  that  it  entered  upon  the  track  near  the  station  is  insufficient. 
LouiHville,  etc.,  R  Co,  f.  Skelion,  IS  lb.  548. 

Varianee. — Variance  between  the  value  of  animal  alleged  and  pioved.  Bitld, 
immaleriaL     Louisville,  etc.,  R  Co.  e.  Overman,  18  In.  648. 


Pennstlyaku  Oo. 


(Advantt  Cow,  Tttdiana.     October  10,  1BB7.) 

The  Indiana  act  of  April  18,  1S85,  does  not  repeal  secttone  4086-4081, 
Rev.  St.  Ind.  1881,  respecting  the  liability  of  railroad  companies  for  killing- 
Stock.  Nol  withstanding  the  act  of  1885,  the  corporation  owning  the  railway 
and  the  lessees,  etc.,  are  jointly  liable  for  the  injury  or  killing  of  animals, 
as  formerly:  the  manner  of  commencing  and  prosecuting  actions  for  the  in- 

{'nry  or  death  of  animals,  and  the  manner  of  collecting  judgments  obtained, 
)  the  same  as  formerly;  for  a  failure  to  fence  at  all  places  required  by  the 
prior  act  railway  companies  are  liable  for  the  injury  and  death  of  animals, 
as  formerly,  except  as  to  form  crossings  and  gates,  the  duty  of  keeping 
them  closed  having  been  expressly  trAinsferred  by  the  acts  of  1685  from  the 
railway  company  to  the  land-owner.  While,  under  the  old  law,  the  duty  to 
fence  the  railway  results  from  the  liability  impoaed,  and.  under  the  new,  the 
duty  'o  fence  portions  of  the  road  therein  specified  is  positively  enjoined,  yet, 
the  liability  for  the  injury  and  killing  of  animals  being  the  same,  tbere  is  no 
sufficient  leason  why  xhe  old  law  may  not  be  held  to  be  in  forcaas  to  the 
'whole  line,  except  so  far  as  concerns  farm  crossings  and  gates. 

In  nrder  to  hold  a  railroad  company  liable  under  the  Indiana  act  of  April 
13,  1885  (AcU  1885,  p.  224).  for  killing  or  injuring  stock  on  its  track,  the 
animal  must,  as  formerly,  have  been  killed  or  injured  by  the  engine  or  CVS. 

Appeal  from  circnit  court,  Jobnson  county. 

S.  Slansifer  ior  appelliiiits. 

Miller  <x  Bamett  and  S.  C.  Brown  for  appellee. 


^dbvGooglc 


KILLING  STOCK — FENCES — STATUTES.  613 

ZoLLABS,  C.  J.  It  is  conceded  bj*  the  pleadings  that  appellee's 
animal  was  killed  npoQ  appellant's  track  by  a  train  of  ite  cars, 
widiiii  the  limits  of  an  incorporated  town  "  laid  oat  and  platted 
into  lot«  and  blocks."  Negligence  is  not  charged;  nor  ie  it  con- 
tended that  the  railway  company  might  not  have  ^^ 
fenced  its  right  of  way  at  the  place  where  the  animal  "*™°- 

went  opon  tlie  track  and  was  killed.  Appellee's  claim  is  that  ap- 
|)ellantsare  liable  nnder  the  BtatnCes  in  relation  to  fencing  railway 
tracks  by  railway  companies.  It  is  conceded  by  connsel  for  ap- 
jmllants  tha^  nnless  the  act  of  April  13,  1885  (Acts  1885,  p.  224), 
repealed  prior  laws  (Rev.  St.  1881,  §  4025  et  seq.),  and  thus 
changed  the  dnties  and  liabilities  of  railway  companies  in  relation 
to  fencing  their  tracks  within  such  portions  of  cities  and  incor 
porated  towns  and  villages  as  are  hiid  out  and  platted  into  lots  and 
blocks,  and  through  unenclosed  and  nnimproved  lands,  the  railroad 
companies  are  liable  in  this  case.  The  case,  therefore,  tnms  npon 
the  question  as  to  whether  or  not  the  act  of  1885  wrought  such 
changes.  The  first  section  of  the  act  provides  tliat  any  railroad 
corporation,  lessee,  assignee,  receiver,  or  other  person  or  corpora* 
tion,  rnnniug,  conCrolhng,  or  operating,  or  that  may 
hereafter  construct,  build,  run,  control,  or  operate,  any  ^^^SE  " 
railroad  into  or  through  this  State,  shall,  witliin  twelve 
months  from  the  taking  effect  of  the  act,  etc.,  bnild  and  thereafter 
inaintiiin  fences,  etc.,  on  both  sides  of  such  railroad  throngliont 
its  entire  length,  except  at  the  crossings  of  public  roads  and  liigh- 
ways,  and  within  such  portions  of  cities  and  incorporated  towns 
and  villages  as  are  laid  out  and  platted  into  lots  and  blocks,  and 
except  where  the  road  runs  through  unimproved  and  unenclosed 
lands.  It  is  further  provided  that  when  snch  lands  become  im- 
proved and  enclosed  on  three  sides,  the  railroad  company,  etc. 
shall  build  and  maintain  a  fence  along  its  right  of  way.  And  still 
fnrther  it  provides  that  snch  company,  etc.,  shall  construct  and 
maintain  barriers  and  cattle-gnards  at  all  pablic  roads  and  high- 
way crossings,  and  that,  on  failure  to  perform  the  requirements  of 
the  act,  the  railway  corporation  or  person  operating  the  road,  shall 
be  liable  for  all  damages  which  may  be  done  by  the  agents,  em- 
ployees, engines,  or  cars  of  snch  corporation  or  person  operating 
the  same  to  any  cattle,  horses,  etc.,  thereon.  The  second  section 
provides  that,  if  the  railroad  company,  etc.,  shall  fail  to  fence  its 
track  as  in  the  first  section  required,  the  owner  of  land  abutting 
on  the  right  of  way  of  the  railroad  company  may,  after  a  pre- 
scribed notice  to  the  railroad  company,  etc.,  construct  the  fences 
and  cattle-gnards,  and  collect  from  the  railroad  company,  or  per- 
son operating  the  road,  the  reasonable  value  of  sncn  fences  and 
cattle^ards.  The  third  section  provides  that,  if  the  railroad  com- 
pany, etc.,  shall  fail  to  keep  the  fences  and  cattle-guards  in  repair, 
the  owner  of  land  abutting  on  the  right  of  way,  after  prescribed 
81  .\.  AB.  P.,  Chs'.-BS 


^dbvGooglc 


614  PENNSYLVANIA   CO.    V.    DUNLAP. 

notice  to  the  railroad  company,  etc.,  may  repair  the  Eame,  and- 
ooik'ct  from  the  company,  etc.,  the  vahie  of  euch  repaii-s.  The 
foDrth  eection  is  aa  follows :  "  Nothing  in  this  act  contained  &ball 
in  any  maimer  aiTect  or  change  the  liability  of  railroad  cor- 
porationB  or  of  the  asaisnees,  lessees,  or  receivers  of  such  corpora^ 
tions,  for  stock  killed  or  injured  upon  their  railroads;  bat  such 
liahiUty  shall  exist  and  be  governed  by  laws  now  in  foree,  the 
same  as  if  tliis  act  had  never  been  passed."  This  section  4,  we 
have  concluded,  was  intended  to  continue  the  prior  statnte  in  force 
(Section  4025  et  neq..  Rev.  St.  1881),  and  was  designed  us  a  dec- 
laration of  tlie  legislative  intention  in  that  regard. 

The  important  question,  then,  is,  how  far  may  it  or  does  it  do 
sol  If,  in  any  partienlar,  it  is  impossible  for  both  statntes  to  re- 
main in  force, — if,  in  other  words,  to  continue  any  por- 
■tVidt^'b".!  tion  of  the  prior  statute  in  force  will  destroy  any  por- 
mnjciiioi..  ^.^^^  ^j  ^j^^  ^^^  ^j  1885,  it  TnuBt  be  held  tliat,  to  that 
extent,  the  prior  statute  is  not  in  force,  notwithstanding  the  dec- 
laration in  section  4  that  it  sliall  remain  in  force.  Deisner  v. 
Simpson,  72  Ind.  435.  On  the  other  hand,  repeals  of  statntes  by 
implication  are  not  favorites  of  the  law,  and  will  take  place  only 
to  tiie  extent  that  tlie  new  law  is  in  irreconcilable  conflict  with  the 
prior  law. 

It  was  held  in  the  case  of  Blain  v.  Bailey,  25  Ind.  165,  that  "  it 
is  a  maxim  in  the  construction  of  statutes  that  the  law  does  not 
favor  a  repeal  by  implication,  and  it  has  accordingly  been  held 
that  where  two  acts  are  seemingly  repugnant  they  mnst,  if  possi- 
ble, be  so  construed  that  the  latter  may  not  operate  as  a  repeal  of 
the  former."  And  it  was  said  that,  in  pui'Suaiice  of  that  maxim, 
it  has  been  Iield  that  an  act  is  not  repealed  by  implication  when 
the  legislature  had  no  intention  to  repeal  it;  citing  Tyson  v.  Pos- 
tlethwaite,  13  111.  727. 

In  the  case  of  Coyhill  v.  State,  37  Ind.  Ill,  this  conrt  quoted 
with  approval  the  following  from  Mr.  Sedgwick's  work  on  Statu- 
tory ^an  a  Constitutional  Law:  "  So,  in  this  country,  on  the  same 
principle,  it  has  been  said  that  laws  are  pi-eeumed  to  be  passed 
with  deliberation,  and  with  fuU  knowledge  of  all  existing  ones  on 
the  same  subject,  and  it  is  therefore  but  reasonable  to  conclude 
that  the  legislature,  in  passing  a  statute,  did  not  intend  to  interfere 
with  or  abrogate  any  prior  law  relating  to  the  same  subject-matter, 
nnlesB  the  repngnancy  between  tlie  two  is  irreconcilable,  and 
hence  a  repeal  by  implication  is  not  favored.  On  the  contrary, 
courts  are  bound  to  upliold  the  prior  law,  if  the  two  acts  may 
well  subsist  together."  See,  also.  City  of  Evansville  v.  Summere, 
108  Ind.  189,  and  cases  there  cited.  And  so,  as  said  in  the  case 
of  Yost  V,  Conroy,  92  Ind.  472,  it  is  competent  for  the  iegislatnre 
to  declare  that  former  acts  shall  not  be  deemed  repealed,  and  when 
this  declaration  is  made,  courts  will  carry  it  into  effect  wherever  it 


^d  by  Google 


KILLING  STOCK — FENCES — STATUTES.  OlB 

<!an  possibly  be  done  without  disregarding  the  provisions  of  the 
latter  act.  The  legislature  has  in  several  instances  passed  laws 
upon  particular  subjects,  and  at  the  same  lime  declai-ed  by  the 
same  enactment  that  prior  laws  npon  the  same  snliject  should  not 
be  repealed,  but  cotitiimed  in  force.  In  each  instance  this  court 
lias  so  far  upheld  the  legislation  as  to  hold  both  acts  to  be  in  force, 
where  to  continue  the  former  act  in  force  would  not  destroy  the 
.latter,  and  has  also  held  the  former  act  to  be  in  force,  so  far  as  the 
eontinning  of  it  in  force  wonld  not  destroy  the  whole  or  any  por- 
tion of  the  latter  act.  Such  acta  have  been  passed  and  upheld,  in 
relation  to  drains  and  eravel  roads.  Tost  v.  Conroy,  aupra; 
Robieon  v.  Rippey,  12  N.  E.  Kep.  141,  and  cases  there  cited; 
Deiener  v.  Simpson,  siipra. 

It  has  been  said  that  repeals  by  implication  rest  upon  the  princi- 
ple that  the  enactment  of  a  new  law  covering  the  whole  subject- 
matter  of  a  prior  law  is  an  expression  of  an  intention  on  the  part 
■of  the  legislature  to  repeal  the  prior  iaw,  but  that  it  cannot  be 
said  that  the  passage  of  such  subsequent  law  is  the  expression  of 
«Dch  intention,  where  it  is  positively  declared  that  the  latter  act 
shall  not  repeal  the  prior  act  upon  the  same  subject.  Bobison  v. 
Rippey,  supra.  And  hence,  as  we  have  stated,  it  is  the  duty  of 
the  conrts  to  uphold  botli  statutes,  if  poF^sible,  and  thus  give  effect 
to  the  expressed  intention  of  the  legislature.  May  that  be  done 
here  to  any  extent,  and  if  so,  how  far  ? 

The  title  of  the  act  of  1863  (Acts  1863,  p.  25,  Rev.  St.  1881, 
§  4025  ei  sea.)  is,  "  An  act  to  provide  compensation  to  the  owners 
of  animals  Killed  or  injured  by  the  ears,  locomotives,  or  other  car- 
riages of  any  railroad  company,  and  to  enforce  the  collection  of 
judgments  rendered  on  account  of  the  same."  Tlie  act  provides 
in  (^tuil  for  the  commencement  and  prosecution  of  cases  against 
railway  companies  for  the  injury  and  killing  of  animals,  and  pro- 
vides a  special  and  somewhat  summary  method  of  collecting  judg- 
ments obtained  in  such  actions.  Section  1,  as  amended  in  1887 
(Rev.  St.  1881,  §  4025),  provides  that  the  company,  lessee,  as- 
signee, receiver,  or  other  person  or  corporation  running,  controlling, 
or  operating  the  i-ailroad,  shall  be  liable,  jointly  and  severally,  etc*. 
Another  section  provides  that  the  act  shall  not  apply  to  any  rail- 
road securely  fenced  in,  and  snch  fence  property  maintained  by 
such  company,  etc.  As  said  in  the  recent  case  of  Pennsylvania 
Co.  V.  Spanlding,  ante,  268,  that  act  did  not,  and,  if  stili  in  foi-ce, 
does  not,  positively  enjoin  upon  railway  companies  the  duty  of 
fencing  their  tracks,  but  made  them  liable,  and,  if  in  force,  still 
makes  them  liable,  for  the  injury  and  killing  of  animals  upon  the 
railroad  track,  where  the  road  is  not,  but  might  and  ought  to  be. 
fenced.  Whatever  duty,  then,  there  was  or  is  in  that  regard  on 
the  part  of  the  railway  company  under  that  act,  resnlted,  and  sUll 
i-esults,  from  tlie  liability  imposed.     By  judicial  interpretations, 


^d  by  Google 


516  PEHM8TLVAMIA   CO,   V.   DUNLAP. 

and  in  meeting  constitntional  objections  arged  against  the  act,  it 
has  been  declared  tbat  one  pnrpoee  of  the  act  was  to  protect  tli& 
public,  travelling  in  cars  over  the  railroad.  Raili-oad  Co,  v.  Tilton, 
12  Ind.  3;  Raifroad  Co.  v.  Maiden,  Id.  10;  Railroad  Co.  v, 
Gnard,  24  Ind.  222 ;  Railway  Co.  v.  Jolmaon,  69  Ind.  188 ;  Rail- 
road Co.  V.  Hildretii,77  Ind,  504.  Under  Biinilar  statutes  in  other 
States  it  has  been  declared  that  the  penalty  was  designed  as  an  in- 
ducement for  railway  companies  to  fence  tlieir  tracks.  The  pur- 
pose of  the  act,  aa  declarea  by  the  title,  was  to  provide  compelisa- 
tion  to  the  owners  of  animals  injured  or  killed  by  the  ears,  loco- 
motives, etc.,  and  to  enforce  tiie  collection  of  judgments  rendered 
on  account  of  the  same.  The  act,  tlien,  was  not  designed  wholly 
to  provide  compensation  to  the  owners  of  animals  killed  by  cai-s, 
etc.,  nor  wholly  for  the  protection  of  the  travelling  public.  That 
it  was  not  designed  whollv  for  the  latter  purpose  is  settled  by  the 
title,  and  by  oar  cases  holding  thiit  the  owner  of  animals,  for 
whose  convenience  farm  crossings  and  gates  are  maintained,  cnnnot 
recover,  if,  by  his  neglect,  the  gates  are  left  open,  and  his  animals 
go  tliroQgli  them  to  the  track,  and  are  there  injured  or  killed. 
Hunt  V.  Railway  Co.,  ante,  263  (present  term),  and  cases  there 
cited. 

If  the  act  was  designed  wholly  for  the  protection  of  the  public, 
the  railway  company  would  be  hable,  although  animals  might  pasa 
to  the  track  through  such  farm  gates.  To  repeat,  titen,  the  act  of 
1863  (§  4025  et  seq..  Rev.  St.  1S81J  was  designed  to  protect  tlie 
public  travelling  in  cai-s  over  the  railroad,  and  to  provide  compen- 
sation to  the  owners  of  animals  injured  or  killed  by  cars,  etc., 
upon  railroads.  It  seems  clear  that  the  act  of  April  13,  1S85, 
was  not  designed  simply  for  those  purposes.  The  leading  purpose 
of  that  act,  as  manifested  by  the  title  and  the  whole  act,  was  to- 
enjoin  a  positive  duty  upon  railway  companies  to  fence  tlieir  tracks 
at  the  phices  therein  specified  ;  in  other  words,  to  give  to  the  own- 
ers of  adjoining  enclosed  and  improved  lands  the  right  to  demand 
and  have  a  fence  built  and  maintained  between  his  land  and  the 
railway.  Under  the  former  act,  as  the  duty  on  the  part  of  the 
railway  company  to  fence  its  track  resulted  simply  from  the  lia- 
bility imposed  for  the  injury  or  killing  of  animiils,  the  adjoining 
land-owner  had  no  means  of  enforcing  the  performance  of  the  duty 
except  by  suits  for  the  injury  or  killing  of  his  animals  by  cai-s, 
etc.,  upon  the  track.  He  might  recover  for  such  injury  or  kill- 
ing, but  he  had  no  means  of  compelling  the  railway  company  to 
build  fences,  nor  of  compelling  It  to  pay  for  fences  bnilt  by  Jiim. 
The  railway  company  might,  as  has  been  the  case,  neglect  and 
refuse  to  build  fences,  and  take  its  chances  as  to  the  amoiint  that 
might  be  recovered  from  it  for  the  injnry  or  killing  of  animals; 
and  thus  the  farmer's  field  might  remain  unenclosed  on  the  side 
adjoining  the  railway,  leaving  his  crops  lialile  to  devastation  by 


^dbvGoo^lc 


KILLING   STOCK— FKSCKS — STATUTES.  617 

tbe  animale  of  others  at  large,  nnless  he  built  fences  himeelf.  His 
animals  might  coiistantlj'  escape  and  stray  away,  and  jet  lie  could 
have  Tio  reeoinpcnse  for  the  annoyance  and  Joes.  To  enable  him 
to  have  fences  built  cither  by,  or  at  the  expense  of,  the  railway 
company  between  hie  enclosed  and  improved  lands  and  the  rail- 
way, and  thus  escape  the  annoyances  and  losses  above  suggested, 
the  act  of  April  13,  1885,  was,  m  the  main,  passed.  And  oecanse 
the  act  was  intended  principally  for  the  benefit  and  protection  of 
owners  usin^  and  fanning  adjacent  enclosed  and  improved  lands,  it 
does  not  requii'e  the  railway  cornp.iny  to  build  and  maintain  fences 
along  unenclosed  and  unimproved  lands,  and  in  platted  portions  of 
cities,  towns,  and  villages,  which  are  not  supposed  to  be  nsed  for 
farming  purposes.  If  that  act  absolutely  repealed  the  prior  act, 
thei'e  ia  no  law  which  directly  or  indirectly  imposes  upon  railway 
companies  tlie  duty  of  fencing  their  ti-acke  witnin  any  portions  of 
cities,  towns,  or  villages  which,  may  be  platted  into  lots,  nor 
throngli  unenclosed  and  nnimproved  lands.  There  must  be  a  con- 
Eideralile  portion  of  each  of  the  raih-oads  in  the  State  which  pass 
through  unenclosed   and   nnimproved   lands.     And,  as   in  many 

f)lace8,  animals  are  allowed  to  run  at  large  by  order  of  the  county 
)oards,  the  result  will  be  tiiat  the  idea  of  compensation  for  ani- 
mals killed  upon  railroads,  and  the  idea  of  protecting  the  public 
travelling  on  railway  cars,  by  requiring  railway  companies  to 
fence  their  tracks,  have  been  largely  abandoned  by  the  legislature. 
We  do  not  think  that  such  was  the  intention  of  the  legislature  in 
the  enactment  of  1885,  nor  do  we  think  tiiat  there  is  anything  in 
that  act  that  requires  a  holding  that  the  prior  act  in  all  its  parts  is 
repealed,  or  that  it  cannot  remain  in  force  without  destroying  tbe 
later  act. 

In  the  State  of  Hisaoari  there  was  an  act  very  similar  to  the  act 
of  1885.  The  act  there  required  railway  companies  to  ei-ect  and 
maintain  fences  on  the  sides  of  tbeir  tracks  where  the  same  passed 
tliroagh,  along,  or  adjoining  enclosed  or  cultivated  fields  mi»od«i  «» 
or  unenclosed  prairie  lands,  and  provided  that,  until  ™""«^ 
such  fences  should  be  built  and  maintained  by  the  railway  com- 
panies, they  should  be  liable  in  double  the  amount  for  all  damages 
which  might  be  done  by  their  agents,  engines,  or  cat's,  to  animals 
going  upon  the  track  at  places  where  such  fences  wei:e  required. 
It  also  provided  that  in  case  tlie  railway  company  should  fail  to 
build  the  fences  as  required  the  adjoining  land-owner  might  build 
tliem,  and  collect  tlie  expense  of  the  building  from  the  railway 
company.     Wagner,  Mo.  St.  (published  in  1872),  310. 

It  will  be  observed  that  the  act  did  not  require  fences  through 
or  along  unenclosed  lands,  except  prairie  lands — so  the  supreme 
court  of  the  State  held.  There  was  another  statute  (same  volume 
of  statutes,  page  520),  which,  like  our  own  act  of  1863,  did  not 
positively  impose  upon  railway  companies  the  duty  of  fencing 


^d  by  Google 


518  PESSSYLVAXIA   Cp.    V.    DLXLAP. 

their  trucks,  bnt,  like  tliat  act,  impoeed  a  liability  for  tbe  iDJnrj  or 
killing  of  animals  eoiiig  upon  tlie  track,  and  prorided  tuat  tbe 
act  elioald  not  applj  to  any  railway  enclosed  b;  a  lawfnl  fence. 
Those  acts  were  both  beld  to  be  in  force — tbe  one  not  coiiflicting 
wich  tlie  other. 

In  the  case  of  Tiarks  v.  Kailroad  Co.,  58  Mo.  45,  it  was  said  that 
the  first  act  above  made  it  obligatory  upon  all  railroads  in  the 
State  to  erect  and  maintain  fences  on  the  sides  uf  tlie  road  where 
the  same  passed  throngli,  along,  or  adjoining  enclosed  or  cnltivated 
fields,  or  imenctosed  pmii-ie  land,  and  that,  nntil  sncb  fences  should 
be  built,  the  corporation  was  made  liable  in  doubPe  the  amount  for 
all  dumages,  by  its  agents,  engines,  or  cars,  to  all  animals  on  the 
road.  Of  tbe  act  last  above  mentioned,  it  was  said  that  it  was  de- 
signed to  funiisji  an  inducement  for  the  roads  to  fence  their  tracks 
wuere  it  was  not  deemed  absolntely  necessary  to  compel  them  to 
do  so;  that  by  that  act,  if  the  road  was  not  fenced,  and  animals 
were  killed  at  a  place  where  the  law  did  not  reqnire  fences  to  be 
erected,  the  corfwration  was  still  liable.  The  same  rnling  was 
made  in  the  recent  case  of  Kadcliffe  v.  Railway  Co.,  2  S.  WT  Rep. 
277,  and  it  was  there  beld  again  that  tbe  act  was  not  restricted  in 
its  application  to  cases  of  injury  occurring  at  points  where  tbe  com- 
panies were  required  to  fence  by  the  Brst  act,  bnt  was  general, 
giving  the  right  to  sue  for  an  injury  occurring  anywhere  on  the 
road,  except  where  it  was  enclosed  by  a  lawful  fence  or  crossed  by 
pnblic  higliways ;  in  other  words,  that  the  act  applied  to  any  part 
of  the  road  where  tbe  company  had  a  ri^ht  to  maintain  fences,  at- 
though  not  reqnired  to  do  so  by  the  other  act.  Those  cases  are 
anlhority  here.  For  the  purposes  of  this  case  it  would  be  siifS- 
cient  to  hold  tliat,  so  far  as  concerns  portions  of  the  railway,  other 
than  those  portions  required  to  be  fenced  by  the  act  of  April  13, 
1885,  the  prior  act  (-Rev.  St.  1881,  §  4025  et  se^ )  is  still  in  force, 
and  thiit,  in  order  to  escape  liability  for  the  ininiy  or  killing  of 
animals  upo'n  snch  portions,  the  railroad  must  be  there  fenced  as 
heretofore  held  by  this  court. 

Appellee's  counsel  snggest  this  difficalty.  Under  the  prior  act 
there  is  no  liability  unless  the  animal  is  struck  by  the  cars  or  en- 
gine. The  act  of  1885  provides  tltat,  on  the  failure  to  fence  the 
railroad  as  therein  required,  the  railway  company,  etc., 
■""KTu-nToB  "8hall  be  liable  for  all  damages  which  may  be  done  by 
clS?™  "*  the  agents,  employees,  engineer,  or  c;irs  of  such  corpo- 
ration, to  any  snch  cattle,  and  other  stock  thereon."  It 
is  argued  that,  under  the  above  act  and  the  language  above  quoted, 
there  may  be  a  liability,  although  the  animal  may  not  be  struck  by 
the  cars  or  engine;  but  it  is  not  suggested  just  how  the  damage 
to  the  animal  may  be  done  by  the  engineer,  etc.,  except  by  running 
a  train  of  cars  upon  it.  The  above-quoted  language  of  the  aet  ie 
confused  and  uncertain ;  but,  after  much  thought  upon  the  whole 


^d  by  Google 


KILLING  STOCK — FENCES — STATUTES.  519 

Bobject^  we  tltink  that  it  was  not  tlie  intention  that  the  railway 
companies  sha]]  be  liable  for  the  injury  or  kiliitifrof  animals  unlees 
they  are  injured  or  killed  by  the  cars  or  eiigioes.  We  are  led  to 
this  coDclnsion  from  two  considerations.  In  the  first  place,  the 
langnage  ie  that  the  corporation  shall  be  liable  for  the  damage 
done. by  the  engines,  etc.,  and  cars  "thereon."  That  seems  to  in- 
dicate tliat  the  animal  mast  be  injured  on  the  track,  and,  if  so,  it  is 
reasonable  to  conclnde  that  the  intention  was  that  the  injury 
should  be  done  by  the  engine  or  ciirs  as  formerly.  In  the  second 
place,  the  main  purpoEe  of  the  act  was  not,  as  we  have  seen,  to 
provide  compensation  to  the  ownei's  of  animals,  bnt  to  secnre 
fences  to  the  land-owner.  The  probability  is  that  the  portion  of 
the  act  fixing  liability  for  the  injary  or  killing  of  animale  was  in- 
serted as  a  matter  of  precantioii,  to  avoid  a  poEsihle  doubt  of  the 
liability  as  it  then  existed.  But,  if  the  suggestion  of  appellant's 
eouneel  ae  to  the  constrnction  of  that  portion  of  the  act  slioald  be 
adopted,  it  woald  not  be  a  sufhcient  reason  for  lioldine  that  the 
prior  act  was  totally  i-epealed.  To  so  hold  wonld  lead  to  much 
more  serions  difSculties.  The  former  act  provides  that  the  corpo- 
ration owning  the  road  and  the  lessees,  etc.,  shall  be  jointly  and 
severally  liable.  If  that  act  is  repealed,  there  is  no  longer  such 
joint  liability.  The.  prior  act  provides  where  and  how  suits  for 
the  injury  or  death  of  animals  may  be  brought,  and  prescribes  a 
special,  and,  as  we  have  said,  a  somewhat  summary,  method  of  col- 
lecting judgments  that  may  be  obtained  for  the  injury  or  killing 
of  animals.  If  that  act  js  repealed,  there  is  nothing  special  left  as 
to  tlie  place  and  manner  of  pi-esenting  snch  suits,  and  the  owner 
of  the  animal  must  collect  his  jodgment  in  the  ordinary  way.  If 
the  former  act  is  repealed,  a  consiuerabie  portion  of  eacli  railroad 
'  in  the  State  may  he  and  remain  without  fences,  and  the  two  pur- 
poses which  led  to  the  legislations-compensation  to  the  owners  of 
animals  injured  or  killed  upon  such  road,  and  the  safety  of  the 
public  travelling  in  cars  thereon — will  be  largely  thwarted. 

Onr  conclusion  upon  the  whole  ease  is,  that  notwithstanding  the 
act  of  1885  the  corporation  owTiing  the  railway  and  the  lessees, 
etc.,  are  jointly  liable  for  the  injury  or  killing  of  animals,  as  for- 
merlj-;  that  the  manner  of  commencing  and  proaecnting  actions 
for  the  injury  or  death  of  animals,  and  the  manner  of  collecting 
judgments  obtained,  is  the  same  as  formerly ;  and  that,  for  a  fail- 
ure to  fence  at  all  places  required  by  the  prior  act,  railway  com- 
panies are  liable  for  the  injury  and  death  of  animals,  as  formerly, 
except  as  to  farm  crossings  and  gates,  the  duty  of  keeping  them 
closed  having  been  expressly  transferred  by  the  acts  of  1855  from 
the  railway  company  to  the  land-owner.  In  other  words,  that 
while,  under  the  old  law,  the  duty  to  fence  the  railway  results 
from  the  liability  imposed,  and,  nnder  the  new,  the  duty  to  fence 
the  portions  of  the  i-oad  therein  ppecified  is  positively  enjoined, 


^d  by  Google 


620  JU8S0UE1   PACIFIC   R.   CO.   V.    MOBBOW. 

yet,  the  liability  for  the  injury  and  killing  of  animals  being  the 
Kime,  there  is  do  sufficient  reason  why  the  old  law  may  not  be  ueld 
to  be  ill  force  as  to  the  whole  line,  except,  ae  already  stated,  eo  far 
as  concerned  farm  crossings  and  ^atee. 

The  court  below  having  held  that  appellants  are  liable,  and 
having  rendered  judgment  accordingly,  the  judgment  JB  atfirmeij, 
with  costs. 

See  not«  to  Ciuciiinati,  etc.,  R.  Co,  e.  Jones,  tupra,  p,  491. 


MiseotJKi  FAciFto  K.  Ca 


(Adeattes  Oau,  Sanaat.     May  6,  1887.) 

A.  pleading  flret  attacked  after  judgmeot,  for  the  reason  that  it  does  not 
state  facts  sufflcient  to  constitute  a  cause  of  action,  will  be  liberally  con- 
strued in  order  to  uphold  the  judgment. 

At)  allegation  that  a  rtuLroad  was  not  securely  fenced  will  be  held  to  mean 
that  it  was  not  inclosed  with  a  good  and  lawful  fence. 

When  the  bill  of  particulars  slates  that  a  demand  was  made  upon  the 
tgeot  of  a  railroad  company  b;  the  owner,  to  paj  for  injuries  to  his  cow  run 
into  by  the  locomotiTes  and  cars  of  said  compauj,  it  will  be  construed  to 
mean,  when  first  attacked  after  judgment,  that  such  agent  was  one  unon 
whom  such  demand  could  be  made,  under  article  S,  c  84,  Kans.  Coiap. 
Laws  1879. 

Erbob  to  district  court,  Cofiey  county, 
David  Kelao  for  plaintifE  in  error. 
John  D.  F'razier  for  defendant  in  error. 

Holt,  C. — Defendant  in  erroi-,  S.  A.  Morrow,  brought  her 
action  against  plaintifF  in  error,  defendant  below,  claiming  dam- 
Tinn.  agee  for  ininriee  to  a  cow  run  over  by  the  locomotives 

and  cars  of  the  defendant,  and  also  jndgment  for  attorney's  fees. 
Defendant  did  not  appear  at  the  trial  in  jnetice's  court,  but  took 
an  appeal  to  the  district  court.  He  made  no  appearance  in  that 
court.  Defendant  claims  that  the  bill  of  particulars  is  not  suffi- 
cient in  law  to  uphold  a  jndgment.  FlaintiflTs  bill  of  particulai-s 
avers  that  plaintiffs  cow,  without  fault  or  negligence  on  the  part 
of  plaintiff,  strayed  in  and  upon  the  track  and  gronnds  of  defendant, 
and  that  defendant,  by  its  agents  and  servants,  so  carelessly  and 
negligently  managed  its  locomotives  and  eni-s  that  they  ran  sgainst 
ana  into  said  cow,  thereby  injtiring  and  damaging  her.  This  is  a 
sofficient  statement  of  plaintiS's  caase  of  action,  without  reference 
to  the  railroad  stock  kw  of  1874. 


j.vCoogIc 


KILLING   STUCK — FENCES.  521 

The  defendant  contends  that  the  facta  set  forth  in  pkiiitifE's 
liill  of  particalars  are  not  snffioitint  to  authorize  a  judgment  for 
attorney's  fees,  under  article  2,  c.  84,  Comp.  Laws  1879,  Tlie  bill 
-of  particulars  etatea  that  "at  the  point  where  said  rail- 
road might  properly  have  been  securely  fenced,  but  to  ikwcdiutt 
where  it  was  not  so  fenced,  said  plaintiff's  cow  strayed  """'''■ 
in  and  upon  the  track,"  etc.  The  statute  provides  that  the  road 
mnst  be  enclosed  with  a  good  and  lawful  fence.  We  believe  tliat 
a  good  and  lawful  fence  must  be  a  secure  fence,  eo  far  as  fencing 
against  a  cow  is  concerned,  especially  when  it  is  alleged  that  the 
cow  strayed  upon  the  tracks  and  grounds  of  said  defendant  with- 
out fault  on  the  part  of  plaintifE.  PlaintifE  in  error  further  com- 
plains that  the  bill  of  particulars  is  insufficient  in  this:  That  the 
notice  which  the  statute  requires  to  be  served  upon  tlie  agcTit  of  a 
railway  company  was  not  pleaded.  The  statute  provides  that  a 
demand  for  dam:iges  may  be  made  upon  any  ticket  iiimiTioF  of 
agent  or  station  agent  of  such  railway  company.  Tlie  Duuaa.  . 
allegations  in  the  bill  of  particulars  are  that  such 'demand  was 
made  by  plaintiff  npon  John  Williams,  agent  of  defendant,  with- 
out any  allegation  that  he  was  a  station  or  ticket  agent,  or  any 
general  agent  of  the  company.  The  question  to  be  decided  now 
IB  whether  such  an  allegation  is  sufficient,  when  attacked  after 
judgment,  to  sustain  a  judgment  based  thereon.  We  think  it  is. 
The  defendant  was  duly  summoned.  No  motion  was  made  to 
make  the  bill  of  particulai-s  moi-e  definite  and  certain.  Tlie 
language  used  in  the  bill  of  particulai's  may  mean  that  lie  was  the 
agent  of  the  defendant,  upon  whom  such  demand  should  be  made, 
fiuch  liberality  of  construction  ought  to  be  allowed  when  objection 
is  first  made  to  the  pleading  after  judgment.  There  could  not  have 
been  a  judgment  for  attorney's  fees  without  proof  of  the  fact  thus 
implied,  and,  as  the  evidence  is  not  in  the  record,  it  is  only  fair  to 
assnme  that  this  was  fully  established  by  evidence.  Indianapolis 
&  C.  R.  Co.  V.  Petty,  30  Ind.  261 ;  Peck  v.  Martin,  17  lud.  115 ; 
Bliss,  Code  PI.  §  442. 

This  action  was  Tried  both  in  the  justice's  and  district  courts,  and 
a  judgment  was  rendered  for  $25  attorney's  fees,  the  amount 
claimed  by  plaintiff  as  an  attorney's  fee  in  justice's  court.  Of  this 
defendant  complains.  We  see  no  error  in  this  judgment.  Tiie 
snm  of  $25  may  have  been  a  reasonable  fee  for  the  trial  in  justice's 
court,  without  regard  to  such  services  in  the  district  court.  In  the 
absence  of  any  evidence  in  the  record,  it  will  be  pi'esamed  that  it 
was. 

It  is  recommended  that  the  judgment  of  the  court  below  be 
affirmed. 

St  tes  Coimr.    It  is  so  ordered ;  all  thejustices  concurring. 

See  note  to  Cincinnati,  etc.,  R.  Co.  v.  JoneB,  ivpra,  p.  491. 


^d  by  Google 


LEAVENWOHTH,   TOPEKA,   ETC.,    K.    CO.    V.    FOKtES. 


Leavxhwobth,  Topbka  Aim  Southwestesn  B.  Co. 


(Admue  Chm,  Saniat.    IfoMnAtr  S,  1887.) 

In  an  kcUod  for  damages  for  the  killing  of  hoga  in  the  operation  of  a  rail 
road,  where  it  is  admittrai  that  the  railroad  was  not  fenced  where  the  injur; 
occurred,  and  in  a  township  where  hogs  were  prohibited  from  ruDoing  at 
large;  and  that,  even  if  the  railroad  had  been  enclosed  with  a  fence  Con> 
Btructed  aa  deaigoHted  bj  section  2  oF  the  fence  law,  that  said  fence  would  not 
have  prevented  said  b<^s  from  going  upon  the  defendant's  right  of  way, 
held,  that  under  said  admissions  it  was  error  to  instruct  the  jury  to  find  for 
the  plaiutifi  unless  thej  found  that  he  contributed  negligently  to  the  injurr; 
^further  held,  that  under  the  adndssiooe  it  was  immaterial  whether  the  a&id 
railroad  was  fenced  or  not. 

Where  the  jury  found  that  the  injur;  occurred  b;  the  negligence  of  the 
railroad  company  and  its  employees  in  the  management  of  its  train,  and  that, 
by  the  exercise  of  ordinar;  care  and  prudence,  they  could  have  prevented 
aaid  injury,  lidd,  that  the  plaintiff  was  entitled  to  recover  unless  by  his  own 
negligence  he  directly  contributed  to  or  caused  the  injury;  and  the  fact 
that  the  plaintiff  kept  his  hogs  in  an  insecure  enclosure,  and  thereby  per- 
mitted them  to  escape  and  go  upon  defendant's  railroad,  would  not  be  such 
De^igence  as  to  prevent  his  recovery. 

Where  an  action  is  brought  before  a  justice  of  the  peace,  and  the  defend- 
ant makes  no  appearance,  but  permits  judgment  to  be  rendered  in  his  ab- 
sence, he  is  not  thereby  prohibited  from  taking  an  appeal  to  the  distiict 
court;  and  section  114  of  the  Justice's  Code  only  provides  an  additional 
remedy. 

CoMursaioNERs' decision.  Error  to  district  court,  Leavenworth 
county;  R.  Ckozier,  Jndge. 

W.  J.  Forbes  bronglit  tlilB  action  in  justice's  court  in  Leaven- 
worth county  to  recover  the  value  of  certain  hogs  killed  by  the 
defendant,  plaintifE  in  error,  in  the  operation  of  its  railway.  The 
defendant,  plaintiff  in  error,  made  default,  and  judgment  was  ren- 
dered for  the  plaintiff  for  the  sum  of  $60  aTid  costs.  Afterward, 
and  within  10  days,  the  defendant  tiled  its  appeal-bond,  and  duly 

Jrosecnted  an  appeal  to  the  diatrict  court  of  Leavenworth  comity. 
n  tiie  district  court  the  plaintiff  made  a  special  appearance,  and 
moved  the  court  to  dismiss  the  appeal,  for  the  reason  that  the 
jndgment  was  rendered  on  default  in  said  jnstice's  court,  and  said 
defendcnt  did  not  proceed,  under  section  114  of  the  Code  of  Civil 
Procedure,  before  said  justice,  to  liave  the  judgment  set  aside,  and 
to  be  let  in  to  defend  ;  which  motion  was  by  the  court  overruled, 
and  excepted  to  by  plaintiff.  The  facts  as  sliown  by  the  evidence 
are  substantially  as  follows:  Plaintiff  was  the  owner  of  about  40 
head  of  hoga,  and  lived  near  the  line  of  defendant's  railway  in 


^d  by  Google 


KILLING   STOCK — FAILURE  TO  FENCE.  633 

Tongaiioxie  township,  Leavenworth  county,  Kansas;  that  on  the 
morning  of  the  injury  tliese  hogs  were  in  an  encloBure  where  they 
had  been  kept  dnring  months  previons;  that  eoine  time  in  the 
morning  they  broke  ont  by  making  a  hole  through  the  fence,  and 
wandering  into  a  neighboring  farm  throngh  whicli  the  defendant'^ 
railway  rnn ;  that  about  10  o'clock  in  the  forenoon  the  west-bound 
ti-ain  on  defendant's  road  run  over  and  killed  seven  or  eight  of  the 
hogg,  of  the  value  of  {60.  It  is  conceded  that  hoe^B  were  prohib- 
ited from  running  at  large  in  said  township,  and  ifiat  the  defend- 
ant's railway  was  not  fenced  where  the  injury  occurred.  Trial  by 
jnry  in  the  district  court,  and  jodginenE  for  plaintiff,  defendant  in 
error,  for  $60  and  costs;  and  the  defendant  brings  the  case  here. 
Defendant  in  error  filed  a  croee-petition  on  the  overruling  of  hi» 
motion  to  dismiss  the  defendant's  appeal. 

George  II.  Peck  and  A.  A.  JSurd  for  plaintiff  in  error. 

liucien  Saker  for  defendant  in  error. 

Clooston.  C — The  plaintiff  in  error  assigns  bnt  two  error* 
for  review :  Firet,  that  the  court  erred  in  refnsing  to  give  the  in- 
structions asked  by  the  defendant;  second,  that  the  sncui.  m- 
Bpecial  findings  of  facts  were  not  snstained  by  the  evi-  "B^DVoa''S' 
dence.  The  special  instructions  asked  by  the  defend-  """""t- 
ant  are  as  follows; 

"(1)  In  townships  where  hogs  are  not  by  law  permitted  to  rnn 
at  large,  a  legal  and  snfficieiit  fence  may  have  ita  lower  rail,  board, 
or  plank  two  feet  from  the  ground. 

"  (3^  If  a  legal  and  sufficient  fence,  as  jnst  defined,  enclosing  the 
defendant's  railway  in  and  throngji  the  township  in  wliich  plain- 
tiff's hogs  were  killed,  as  shown  by  the  testimony  in  this  action, 
would  not  have  prevented  said  hogs,  or  any  of  tiiem,  from  going 
to,  on,  or  over  the  track  of  said  railway  at  the  phice  where  they 
were  killed,  then  no  recovery  in  favor  of  plaintiff  can  be  baaed, 
wholly  or  partly,  on  any  failure  to  fence  said  railwaj-. 

"(3)  Hogs  which  have  escaped  from  their  owner  or  keeper  by 
breaking  through  his  enclosure  or  otherwise,  and  which  are  roam- 
ing on  the  higliway,  or  trespassing  on  the  lands  of  another,  are 
running  at  large  within  the  meaning  of  section  46  of  chapter  10& 
of  tiie  G-enei-al  Statutes  of  Kansas. 

"(4)  If  you  find  that  plaintiff's  hogs,  for  tlie  killing  of  which 
this  action  is  brought,  wei'o  killed  while  running  at  large  in  a 
township  where  the  voters  had  not  voted  to  be  exempt  fiom  the 
operations  of  section  46  of  chapter  105  of  the  General  Statutes  of 
Kansas,  then  you  should  find  for  the  defendant,  unless  you  further 
find  that  said  hogs  were  at  large  without  fault  or  negligence  of 
plaintiff. 

"  (5)  In  a  township  where  hogs  are  by  law  prohibited  from  run- 
ning at  lai^e,  it  is  the  duty  of  those  who  keep  iiogs  in  a  iiclii  or 


^d  by  Google 


624      LEAVENWORTH,   TOPEKA,    ETC.,    B.    00.   «.   FOBBES. 

pull  to  enclose  them  with  Biich  a  fenee  or  b&rrier  as  will  prevent 
tiioir  escape.  If  in  snch  township  thej  have  escaped  by  breaking 
through  or  getting  over  the  fence  with  which  they  were  enclosed, 
6Hch  escape  will  be  presumed  t»  have  been  by  reason  of  the  fault 
or  negligence  of  the  person  assuming  to  keep  them,  unless  it  is 
proven  that  sucli  fence  was  so  constructed  and  kept  in  I'epair  that 
fiuch  breaking  through  or  getting  over  could  not  have  been  rea- 
sonably anticipated  from  the  condition  of  the  fence  and  the  size, 
activity,  natural  inclinations,  and  known  character  of  the  hogs  so 
escaping. 

"  (6)  The  rules  of  law  as  to  diligence  and  negligence  apply  to 
etock-K>wnerB  as  well  as  to  railway  companies.  Hence  if  hogs  were 
prohibited  by  law  from  rniining  at  large  in  the  township  where 
plaintiffs  hogs  were  kept  by  him,  and  were  killed  by  the  defend- 
ant's railway  train,  the  law  required  frem  the  plaintiff  the  same 
degree  of  diligence  to  keep  his  hugs  from  escaping  that  it  requii-ed 
from  the  railway  company  to  avoid  kiiling  them  when  tiiey  got  in 
front  of  its  train  ;  and  if  the  plaintiff  failed  to  nse  that  degree  of 
diligence  to  keep  his  hogs  from  escaping  he  cannot  recover  in  this 
action." 

We  concede  that  instrnctions  1,  2,  5,  and  6,  state  the  law  appli- 
cable to  this  case,  and  know  of  no  reason  why  the  court  should  not 
have  given  them  to  the  jury.  Instructions  6  and  6  we 
Bimiiiiia  "  think  were  substautiallj'  given  in  the  general  charge  by 
Huifun}  or  the  court.  As  to  iiistniction  4,  it  assumes  that  the  de- 
fendant would  not  be  liable  if  the  hogs  in  question 
were  rnnning  at  lai^e,  as  contemplated  by  section  46  of  chapter 
105  of  the  General  Statutes  of  Kansas,  even  if  killed  by  the  negli- 
gence of  the  defendant.  Had  the  railway  added  to  this  instruction 
its  liability  for  its  acts,  if  negligently  or  wilfully  done,  then  the 
instructions  would  have  been  applicable  to  this  case.  Kailroad 
Co.  V.  Lea,  20  £an.  353.  This  is  also  Enhstantiiiliy  the  defect  in 
instruction  3,  refused*  The  fact  thnt  hogs  are  found  at  large  in  a 
township  where  tliey  are  prohibited  by  law  from  running  at  lai^ 
is  not  conclusive  evidence  that  they  are  trespasser,  as  contem- 

f>lated  by  section  46;  it  depends  upon  how  tliey  came  to  bo  at 
nrge.  If  by  the  deliberate  or  negligent  acts  of  the  owner,^tlien  they 
are  to  be  considered  as  running  at  large;  bnt  if  by  accident,  with- 
out fanlt  of  the  owner,  then  they  are  not  rnnning  at  large  as  con- 
templated by  said  section.  Instrnctions  3  and  4,  if  given,  would 
have  relieved  the  defendant  of  all  liability  had  the  lioge  been  at 
large  as  trespassers,  or  at  lai^  by  the  fanlt  of  their  owner,  not- 
withstanding the  fact  that  the  injury  occurred  by  the  negligence 
or  the  wanton  acts  of  the  defendant  or  its  employees.  This  is  not 
the  law  applicable  to  this  case,  and  therefore  the  iT^^trnctinns  were 
properly  refused.  Sea  Kailway  Co.  v.  Konds,  33  Kan.  640  ;  Rail- 
way  Co.  V.  Bradsliaw,33  Kan.  533;  Railroad  Co.  v.  Shaft, 33  Kiui.  527. 


^d  by  Google 


KILLING  STOCK — FAILURE  TO  FEUOE.  525 

Tbe  next  qaestion  is,  was  the  refusal  of  the  court  to  give  tho 
instructions  that  were  proper  and  ought  to  liave  been  given  such 
error,  andor  the  facts  of  this  case,  as  to  warrant  a  re- 
versal of  this  action.  This  action  was  tried,  and  the  7 
jtiry  inatnicted,  upon  two  theories:  First,  that  the  in-  J 
jur;  occurred  by  the  negligence  of  the  defendant,  its 
agtjnta,  and  employees,  in  the  management  and  operation  of  its 
trains,  and  by  the  exercise  of  ordinary  prndence  and  care  the  in- 
jury could  have  been  prevented;  second,  that  tbe  hogs  were  at 
large  without  fault  of  the  plaintiff,  and  that  the  defendant's  raiU 
way  was  not  fenced  at  the.  place  where  tbe  injury  occni'red.  The 
jury  was  asked  to  find  upon  the  fii'st  of  these  propositions,  and 
thoir  answer  thereto  was  as  follows:  "Did  the  defendant  and  its 
servants  and  agents  negligently  run  its  engine  and  cars  into  and 
upon  the  bogs  of  tbe  plaintiff?  Answer,  yes."  "Could  tbe  de- 
fendant and  its  servants  and  agents,  by  the  exercise  of  ordinary 
prndence  and  care,  have  prevented  tbe  killing  uf  plaintiff's  hogs 
after  they  came  npon  its  track  ?     A.  Yes." 

Upon  these  findings  of  fact  it  is  clear  that  the  jury  found  against 
tbe  defendant  on  the  first  proposition ;  that  is,  they  found  that  tbe 
injury  occurred  by  the  negligence  of  the  defendant  and 
its  employees,  and  that  by  tbe  use  of  ordinary  prudence  FimDcoa  bui- 
and  care  tJie  injury  could  luive  been  prevented.  If  «ti™»™-nbo- 
tbese  finding?  were  sustained  by  the  evidence  that  DumiDtm. 
does  away  with  all  the  otiier  questions  in  this  case.  It 
then  could  make  no  difference  Jiow  tbe  hogs  came  to  be  at  large; 
whether  they  broke  out  of  a  lawful  enclosure  witiiout  fault  uf  the 
defendant,  or  were  kept  in  an  insufficient  enclosure,  and  by  the 
negligence  of  the  plaintiff  became  at  large,  the  injury  occurred  by 
tlie  company's  negligence,  and  this  would  make  it  liable.  Under 
these  findings  if  the  instructions  asked  for  by  tbe  defendant  bad 
been  given  the  verdict  would  have  been  theeame.  Counsel,  how- 
ever,  insist  that  the  findings  were  not  sustained  by  the  evidence  ; 
but  in  this  we  think  counsel  are  mistaken.  Tbe  evidence  of  tbe 
witnesses  for  tbe  defendant  alone  would  justify  the  jury  in  the 
findings.  Tlie  first  witness  called  by  tlie  defendant  whs  its  section 
foreman  of  that  section  where  the  injury  occurred.  He  testified 
that  the  hogs  could  have  been  seen  by  the  employees  on  tbe  trdin 
for  700  or  800  feet  before  they  reached  the  point  where  tlie  in- 
jury  occurred.  The  engineer  who  was  in  charge  of  tbe  engine 
testified  that  be  saw  the  hogs  npon  the  track  when  250  feet  from 
tbe  point  where  they  were  run  over ;  that  he  made  no  effort  to 
check  or  stop  the  train;  that  the  hogs,  when  he  first  discovered 
them,  were  running  on  the  track  away  from  the  engine;  that  a 
part  of  them  left  tue  track,  and  a  few  continued  to  rnn  on  tlie 
track;  he  whistled  and  opened  the  cylinder  cocks,  supposing  tbe 
bogs  would  leave  tbe  track.     The  fireman  who  was  firmgon  the 


^d  by  Google 


526      LEAVENWORTH,    TOPEKA,    ETC.,    B.    CO.    V.    FORBES. 

engine  testified  tlmt  lie  saw  tlie  liogs  wlien  the  engine  wns  a 
quarter  of  a  mile  east  of  tlie  place  of  hijnry,  and  the  liogs 
were  on  tlie  track;  tliat  tlie  engineer  whistled  and' let  oSeteam.  _ 
but  made  no  effort  to  stop  the  train  ;  that  the  train  could  have 
been  stopped  in  a  distance  of  150  or  200  feet.  This  evidence 
alone  was  sufficient  to  show  negligence.  The  hogs  were  running 
west  on  the  track  when  discovered  by  the  engineer;  they  were  in 
a  cut  running  toward  the  west  end  of  it;  part  of  the  hogs  were 
on  the  track,  and  otJiers  were  on  eacli  side.  He  could  liave 
stopped  the  train  before  reaching  the  hogs,  and  thereby  liave  pre- 
vented the  injuiT.  It  is  no  excuse  for  hmi  to  eaj  that  he  thonght 
the  hogs  would  leave  the  track;  they  were  on  the  track,  and  some 
of  them  continued  to  remain  on  the  track,  and  yet  no  effort  was 
made  to  stop  the  train. 

Connsel  uisiete  that  the  general  charge  given  by  the  conrt  to 
the  jury  did  not  state  the  law  of  this  case  as  established  by  this 
court.  The  instruction  referred  to  by  connsel  isasfol- 
«uM>-Boo  lows:  "Now,  on  the  other  side,  it  is  claimed  by  the 
TOFMot"'™'  defendant  in  this  case  there  was  what  is  called  a 
'  Hog  Law '  in  force  in  this  township  referred  to.  It 
is  said  to  have  been  an  order  of  tiie  board  of  county  commiseioR- 
ere,  properly  pubiiehed,  prohibiting  or  directing  that  hogs  should 
not  be  allowed  to  run  at  large  in  this  county.  If  such  was  the 
action  of  the  county  board  that  would  be  effective  on  that  subject, 
and  hogs  running  at  large  would  bo  conclusive  evidence  that  they 
were  running  at  large  contrary  to  law;  but  although  tJiat  may 
have  been  conclusive  evidence  that  these  hogs  were  unlawfully 
running  at  lai'ge,  with  reference  to  that  order  of  the  board  of 
county  commissioners,  yet  unless  the  road  of  the  company  was  en- 
closed with  a  good  and  lawful  fence  to  prevent  an  animal  from 
going  on  tlie  railcoad  track,  and  they  were  killed  by  the  railroad, 
the  ci>mpany  would  nevertheless  be  lialile." 

This  instruction  does  not  correctly  state  the  law.  A  railroad  is 
only  bound  to  fence  its  track  with  a  lawful  fence,  and,  in  town- 
ships wJiere  hogs  are  not  permitted  to  run  at  large,  are  only  re- 
quired to  construct  the  fence  provided  for  by  section  2,  c.  40, 
Ooinp.  Laws  1885,  which  provides  that  the  "  bottom  rail,  board,  or 
plank  shall  not  be  more  th.in  two  feet  from  the  ground."  A  law- 
ful fence  may  or  may  not  be  sufficient  to  prevent  hogs  from 
going  upon  the  track,  A  lawful  fence  might  prevent  large 
hogs,  and  not  small  ones,  frein  going  threugh  it.  The  burden 
of  proof  to  establish  this  rests  upon  the  railroad  company  ; 
and  in  this  case  it  was  conceded  that  a  lawful  fence,  or  a 
fence  with  the  bottom  rail,  plank,  or  board  two  feet  from 
the  ground,  would  not  have  jirevented  tiie  hogs  from  going 
upon  the  defendant's  track.  This  being  true,  it  then  raade  no 
difference  in  this  case  whether  the  defendant's  road  was  fenced 


^d  by  Google 


KILLING  STOCK — FAILUBE  TO  FENCE.  527 

with  a  lawful  fence  or  not.  Railroad  Co.  v.  Tales,  21  Kan.  613  ; 
■Riiiiway  Co.  v.  Bradshaw,  33  Kan.  533  ;  Railroad  Co.  v.  Lea,  20 
Kan.  353.  The  trial  court  evidently  understood  tlie  law  to  be 
that  the  fence  contemplated  mnst  be  so  constructed  as  to  prevent 
alt  animals  from  going  upon  the  railroad  tiack,  and  eg  in  suDStance 
instructed  the  jury.  We  do  not  so  understand  the  law  ^  but  in 
answer  to  this  objection  wo  eiigirest  to  coansel  that  the  record  fails 
to  show  any  objections  or  exceptions  taken  to  the  giving  of  said 
instruction,  and,  In  fact,  we  cannot  see  how  it  would  help  the  de- 
fendant, even  if  the  exception  had  been  saved ;  for  if  the  court 
gave  the  jury  a  wrong  construction  of  tlie  law  upon  this  branch 
of  the  case,  and  yet  correctly  gave  the  law  upon  tlie  first  proposi- 
tion, that  the  damage  was  caused  by  the  negligent  act  of  the  de- 
fendant in  the  opei-ation  and  rnnning  of  the  train,  without  faalt 
of  the  plaintiff,  and  the  jury  found  for  the  plaintiff  upon  this 
branch  of  the  case  then  it  was  immaterial,  even  if  the  court  wrong- 
fully instructed  the  jury  on  the  other  branch  that  counsel  com- 
plains of. 

The  cross-petition  of  the  defendant  in  error  presenCa  but  the 
one  question :  Will  an  appeal  lie  from  the  final  judgment  of  a 
justice  of  the  peace  where  the  defendant  makes  default 
and  permits  judgment  to  be  rendered  in  his  absence)  j^^^  iS^ 
Appeals  are  regulated  by  the  statute.  Section  120  of  i^'^  " 
the  Code  of  Procedure  before  justices  of  the  peace, 
reads :  "  In  all  cases  not  otherwise  specially  provided  for  by  law, 
either  party  may  appeal  from  the  final  judgment  of  a  justice  of  the 
peace  to  the  district  court  of  the  county  where  the  judgment  was 
rendered."  And  section  132  is  as  foUows:  "An  appeal  may  be 
taken  from  the  final  judgment  of  a  justice  of  the  peace  in  any  case, 
except  in  cases  hereinafter  stated,  ir.  Thich  no  appeal  shall  be 
allowed:  First,  in  jndginents  rendered  on  confession  ;  second,  in 
jury  trials  where  neither  party  claims  in  his  bill  of  particulare  a 
snm  exceeding  twenty  dollai-s."  Then,  by  the  direct  terms  of 
this  statute,  an  appeal  may  be  taken  from  a  judgment  not  prescribed 
by  Statute;  and  judgments  taken  on  default,  or  in  tlie  absence 
of  a  party,  are  tiot  within  tlie  exception.  Defendant,  however, 
insists  that  section  114  of  the  justices'  act  provides  a  complete 
remedy  whereby  judgments  rendered  in  the  absence  of  a  party 
may  be  opened  np,  and  the  defendant  let  in  to  defend.  This  is 
true ;  ample  provision  is  there  made,  but  the  statute  does  not  pre- 
tend to  make  that  rule  an  exchisive  one.  It  simply  provides  an 
additional  remedy  which  may  be  pursued  at  the  option  of  the  party. 
And  after  that  remedy  lias  been  pursued,  a  party  would  still  have 
the  right  of  appeal.  Many  cases  miglit  arise  in  which  an  applica- 
tion  under  section  114  would  woi'k  great  liardship.  Affidavit  must 
be  made  in  that  case  by  the  party  himself.  Judgments  are  ren- 
dered frequently  in  the  absence  of  parties,  where  it  would  be  im- 


S 


lib,  Google 


538  KOBE  V.   NORTHEEir   PACIFIC   E.   CO. 

possible  to  make  tlie  application  in  person  under  said  section  ;  but 
an  nppeal  may  be  taken  witlioat  tlie  preeeoce  of  tbe  party,  it  not 
being  iteceBsarj  tliat  be  sliould  sign  tiie  appeal-bona.  Tbis  ail 
may  bo  doue  in  liis  absence.  We  are  well  aware  tbat  Bome  statcE 
appureiitly  bave  decided  this  qnoation  tbe  other  way.  In  Clenden- 
ninp  T.  Crawford,  7  Neb.  474,  and  Strine  v.  Kingsbaker,  12  Neb. 
52,  founded  upon  a  statute  Biinilar  to  our  own,  it  was  decided  that 
an  appeal  would  not  lie  from  such  a  judgiiient.  In  Erayton  v. 
County  of  Delaware,  16  Iowa  44,  which  was  an  appIicatioQ  to 
strike  from  the  files  an  answer  filed  in  the  district  conrt,  after 
an  appeal  bad  been  taken  from  tbe  justice  of  the  peace,  tbe  conrt 
held  that,  as  the  defendant  was  in  default  for  an  answer  in  the 
justice's  court,  before  be  could  answer  in  tbe  district  he  would 
have  to  purge  himself ;  but  did  not  bold  tbat  an  appeal  would 
not  lie.  In  Loi>g  v.  Sharp,  5  Or.  438,  cited ,  this  was  a  caee 
founded  upon  a  st;itute  which  provides  that  no  appeal  shall 
lie  in  cases  where  default  was  had  in  the  justice's  court.  On  the 
other  hand,  in  liutler  v.  Heeb,  3S  Iowa,  429,  it  was  held  that  an 
appeal  would  lie  from  tlie  judgment  of  the  mstice  of  tbe  peace 
rendered  on  default.  Also  in  Liuferty  v.  Prickelt,  50  Ind.  M, 
and  Ilallock  v.  Jandin,  34  Cal.  167. 

The  court  committed  no  error  in  overruling  defendant's  motion 
to  dismiss  the  appea*!.  It  is  recommended  that  the  judgment  of 
the  court  below  be  affirmed. 

Bt  the  Coubt.    It  is  so  ordered,  all  the  justices  concurring. 

See  note  to  Cinoiiuiati,  etc.,  R.  Co,  e.  Jones,  pMt, 


NOKTHEBN    PaCIFIO  E,    Oo. 

(AAxmee  Can,  XmnetoUt.    AprU  39,  1887.) 

The  implied  ezception  to  the  statute  requiriog  rtkilroad  companiee  to  fence 
their  tracks,  which  allows  places  to  be  left  open  to  aSord  necesaary  and  salt- 
able  access  to  statioa  and  depot  grounds,  simply  modifies  the  genenl  obli- 
gatioD  to  fence,  bo  far  as  the  necea^it;  upon  which  the  exception  rests  re- 
quires. It  ia  DeTCrtheless  the  dut;  of  a  compaDj  to  erect  and  mainUun 
suitable  fences  aod  guards  to  prevent  domestic  aaimals  from  passiDg  over  or 
through  Che  depot  grounda,  onto  the  track,  beyond  the  limits  of  such 
grounds. 

Action  in  the  district  court  of  Morrison  county,  to  recover  dam- 
ages for  the  killing  by  defendant's  locomotive  of  certain  cattle  be- 
longiTig  to  plaintiff.     From   the  evidence  offered   on  the  trial  it 


^d  by  Google 


KILLIKO  STOCK— FENCES — DKI'OT  GROUNDS.  639 

apf>earB  tlmt  the  cattle  vere  killed  at  a.  point  on  the  railroad  track 
Eeveral  lodB  distant  from  a  public  road  croBsing,  at  which  crossing 
there  were  no  cattle-guards.  The  track  was  not  fenced  at  the 
point  where  the  cattie  were  killed.  Judgment  for  plaintiff. 
From  an  order  denying  a  motion  for  a  new  trial  defendant  appeals, 

W.  F.  Street  for  Kobe,  respondent. 

W.  P.  Clough  and  John  C.  BvUitt  for  Northern  Pac.  R.  Co., 
appellant. 

Bekby,  J. — The  statute  requires  every  railroad  company  in  the 
State  to  build  and  maintain  good  and  sufiicient  cattle-gnanis  at  fdl 
wagon  crosBinge,  and  good  and  eubstantial  fences  on  each  side  of 
its  road.  Gen.  St.  1878,  c.  34,  §§  54,  56.  In  Greeley  v.  St.  Paul, 
M.  &  M.  R.  Co.,  33  Minn.  136;  s.  c.  19  Am.  &  Kng.  R.  R.  Cas. 
559,  this  statute  was  held  to  be  subject  to  an  implied  exception  as 
to  places  required  to  be  left  open  by  public  necessity  or  conve- 
nience, such  as  station  or  depot  grounds,  used  for  the  exit  or  en- 
trance of  passengers,  or  the  receipt  and  delivery  of  freight.  But 
it  was  also  held  that  this  public  convenience  is  the  limit  of  the  ex- 
ception. The  obvious  purpose  of  the  statute  is  to  prevent  domes- 
tic animals  from  going  upon  railroad  tracks.  This  purpose  is  to 
be  kept  in  mind,  notwithstanding  the  exception  wliich  simply 
operates  to  modify  or  qualify  the  general  obligation  to  fence  so 
,  far  only  as  the  necessity  upon  whicli  it  rests  requires;  that  is  to 
say,  save  so  far  as  ia  necessary  to  afford  convenient  and  suitable 
access  to  station  or  depot  grounds,  the  road  must  be  protected  from 
the  incursions  of  domestic  animals  by  guards  and  fences.  For  the 
purpose  of  accomplishing  the  manifest  design  of  the  statnte  the 
places  which  it  ia  necessary  lo  leave  open  to  afford  sneh  access  may 
properly  be  regarded  as,  or  as  in  the  nature  of,  wagon  crossings, 
and  the  passing  of  domestic' animals  from  the  depot  gronnds  to 
the  track  beyond  their  limits,  in  either  direction,  is  to  be  fenced 
or  guarded  against  in  like  manner  as  in  case  of  such  crossings.  Id 
this  view  of  the  law  it  makes  no  difference,  as  respects  the  liabil- 
ity of  a  company,  whether  cattle  killed  upon  its  track,  outside  of 
depot  grounds,  reacli  tiie  place  where  they  are  killed  by  passing 
over  or  through  such  grounds,  or  by  going  upon  the  track  at  any 
other  place  required  to  be  fenced. 

This  disposes  of  the  law  of  the  case,  and,  npon  the  evidence, 
the  jnry  were  at  liberty  to  determine  the  gnestioDS  of  fact  ad- 
vei-aely  (as  they  have  donej  to  defendant 

Order  denying  new  trial  affirmed. 

See  note  to  Cinciimatl  R.  Co.  e.  Jonee,  mipra,  p.  491. 
81  A,  ft  £.  R  Oas.— 84 


.,Coti<^lc 


MlSSOUai  PAOIFIO  B.  CO. 


HissouBi  Pacifio  E.  Co.  «f  oZ. 
F- 

DCHHAIC. 

(JdwMM  Gate,  TtM*.     Mof/  6,  1887.) 

The  Texas  Bt&tute  impoBiDg  a  liabilitj  on  rdlroad  compuies  for  Injuries 
dooe  to  aaimalt,  unless  the  railroad  track  is  fenced,  does  not  apply  to  sucb 
places  as  public  neceesitj  or  coDVenience  require  should  be  left  unfenced, 
such  as  the  streets  of  a  city  or  town,  the  depot,  or  contiguous  grounds. 
When,  bonever,  an  injur;  occurs  within  the  limits  of  &  town  or  city,  the 
burden  of  prcrof  rests  with  the  railway  company  to  show  that  the  place  at 
which  the  animal  entered  was  one  which,  under  the  law,  it  was  not  per- 
mitted to  fence. 

In  an  action  aguust  a  railroad  to  recover  for  killing  plaintifTs  stock  while 
trespassing  on  the  railroad  track  in  a  town,  evidence  is  admissible  to  show 
that  stock' was  not  permitted,  under  the  law,  to  run  at  large  in  the  town 
where  the  killing  occurred.  Where  tliere  is  sucb  a  law  the  railroad  com- 
pany is  liable  only  for  gross  negligence  in  killing  stock. 

Where  the  railroad  on  which  Che  killing  occurred  was  owned  by  one  com- 
pany, and  leased  to  another,  without  special  authority  from  the  St«t«,  both 
companies  are  liable  to  the  owner  of  the  slock. 

Appeal  from  La  Salle  coniity. 

ELias  Edmonds  for  appellants. 

No  counsel  for  appellee. 

WiLLiK,  C.  J.' — The  appellee  was  the  owner  of  a  valnable  sow 
snd  brood  of  pigs  which  he  allowed  to  rnn  at  large  in  the  town  of 
ficm  Cotnlla,  Ln  Salie  county.     While  trespassing  upon  the 

track  of  appellants  in  their  depot  at  Cotnlla,  they  were  Btriick  by 
the  engine  of  a  train,  and  tlio  sow  killed  and  the  pigs  injured. 
This  enit  was  brought  to  i-ecovef  damages  for  the  injury ;  and  the 
district  court,  to  which  the  cause  bad  been  removed  by  appeal 
from  a  justice's  court,  rendered  jndginent  in  favor  of  the  appellee 
for  J42.50,  and  from  that  jndgment  tliis  appeal  is  taken.  The  plain- 
tiff proved  facts  tending  to  show  that  the  injury  was  caused  by  the 
eagine  and  cars  of  the  defendant,  and  that  the  railroad  was  not 
fenced  at  the  place  where  it  happened  ;  gave  evidence  of  the 
amount  of  damages  he  incurred  thereby;  ana  rested  his  case.  The 
defendant  proved  that  the  accident  occurred  at  itH  depot  gronnds 
within  the  town  of  Cotnlla;  that  the  town  was  there  bnilt  up  on 
both  aides  of  the  track ;  and  if  the  railroad  was  fenced,  then  it 
wonid  create  a  great  inconvenience  to  tlie  public, as  they  could  not 
then  pass   without  difficulty  from  one  part  of  the  town   to  the 


^d  by  Google 


KILLING  STOCK — FENCES — LEASE.  531 

other.  No  proof  of  negligence  of  any  character  was  proved 
against  tlie  appelhmts,  the  plaintiff  relying  solely  upon  their  fail- 
ure to  fence  their  track  as  conclusive  npon  that  point.  Dnrinj; 
the  trial  Che  defendants  offered  in  evidence  certain  proceedings  of 
the  county  conrt  of  La  Sulle  county  showing  that  stock  were  hy 
law  prohihited  from  running  at  large  in  precinct  No.  1  of  that 
county,  which  embraced  the  town  of  Cotulla.  Upon  objection  of 
plaintiff  these  proceedings  were  exclnded  from  the  jury,  and  to 
this  action  the  defendants  reserved  a  bill  of  exceptions.    . 

At  the  time  this  suit  was  tried  below,  tlie  case  of  International 
A  G.  N.  R.  Co.  V.  Cocke,  64  Tex.  161 ;  s.  c,  23  Ara  &  Eng.  It.  E. 
Cas.  226,  had  not  been  publishec^  in  our  Reports,  and 
doubtless  had  not  come  to  the  kjiowledge  of  tiie  o^nmimi 
learned  district  judge  who  presided  at  the  trial,  or  he  JJI^m^  ""■ 
would  have  followed  the  principles  then  declared  by 
this  court.  We  there  held  that  "  the  general  terms  of  onr  statute 
imposing  a  liability  on  railway  companies  for  injuries  done  to  ani. 
mala,  unless  their  railway's  are  fenced,  do  not  apply  to  snch  places 
as  public  necessity  or  convenience  require  should  be  left  unfenced, 
sncii  as  the  streets  of  a  city  or  town,  depot,  and  contignons  grounds, 
the  crossings  of  highways,  and  other  like  places."  These  princi- 
ples are  snpported  by  the  numerous  decisions  cited  in  the  opinion, 
made  upon  etatntes  similar  to  our  own,  and  constitnte  the  settled 
law  of  onr  State  upon  the  subject.  It  was,  however,  said  in  that 
case,  that,  when  an  injnry  "  occurs  within  the  limits  of  a  town  or 
city  it  rests  with  the  railway  company  to  show  that  the  place  at 
which  the  animal  entered  was  one  which,  nnder  the  law,  it  was 
not  permitted  to  fence."  The  corporation  of  a. town  or  city  often 
embraces  territoiy  which  is  not  used  by  the  public  differently  or 
to  a  greater  extent  than  the  same  character  of  land  in  the  countiT. 
To  fence  the  road  at  such  places  would  not  interfere  with  the  pub- 
lic convenience,  and,  as  to  these  places,  there  is  no  reason  why  the 
railroad  company  should  not  comply  with  the  statutory  reqnii'e- 
inent.  The  burden  of  ehowing  that  the  company  is  relieved  from 
its  statutory  duty  is  thrown  upon  it ;  and,  when  this  is  established, 
it  ie  then  liable  only  in  the  event  that  the  injury  has  resnlted  from 
the  want  of  ordinary  care.  Tn  this  case  the  injury  occurred  at  the 
depot  of  the  appellants,  and  within  the  settled  portion  of  the  town, 
where  the  companies  could  not  have  fenced  their  track,  as  public 
necessity  required  that  it  sliould  bo  kept  open  ;  and,  no  proof  hav- 
ing been  made  tiiat  the  injury  occurred  from  want  of  ordinary 
cure  on  the  part  of  the  appellants,  judgment  should  have  gone  in 
their  favor,  Tlie  court  sliould  have  charged  the  jury  in  accord- 
ance with  the  principles  herein  announced,  and  because  this  was 
not  done,  and  the  judgment  is  against  the  law  and  the  evidence,  it 
tnust  be  reversed. 


^d  by  Google 


B32  JEBB  V.   CHIOAOO  AND   alULND  TBUNK  B.   OO. 

We  tbiuk,  too,  that  the  court  shoold,  npon  another  trial,  if  re- 
quested, admit  evidence  showing  that  stock  was  not, 
ft^^tamr  u»der  the  law  in  exiEteiice  when  the  injnry  for  which 
Sy.™.^."  this  suit  was  bmught  occurred,  allowed  to  run  at  large 
in  the  town  of  Cutulla.  Hailroad  conipanies  are  en- 
titled to  presnme  that  every  person  will  comply  with  the  law  which 
forbids  tne  owner  to  allow  his  animals  to  run  at  large.  Hence 
they  are  excused  from  the  exercise  of"  such  care  as  is  exacted  of 
them  when  animals  are  permitted  to  ran  at  large.  When  there  is 
no  such  law  they  are  liable  for  the  want  of  ordinary  care;  when 
there  ie  such  a  law  they  are  liable  only  for  gross  negligence.  The 
evidence  is  therefore  important  in  determining  the  degree  of  neg- 
ligence for  wliich  the  appellants  may  be  responsible.  Kailway  Co. 
V.  Cocke,  aupra. 

The  evidence  does  not  inform  us  as  to  why  this  action  was 
brought  against  the  two  railroad  companies  appellant.  There 
^^  was  no  point  made  below  as  to  the  ownereliip  of  the 

uuatm.  BOTB  road,  and  it  might  be  pi'esnmed  that  the  road  and  the 
rolling  stock  that  caused  the  injury  belonged  jointly 
to  the  two  companies.  If,  however,  it  should  appear  that  it  was 
owned  by  one  company,  and  leased  to  the  other  without  special 
authority  from  the  State,  both  companies  would  be  liable ;  the  one 
because  of  its  actual  operation  of  tlie  road,  and  the  other  becauEe 
it  could  not,  without  permission  of  the  legislature,  transfer  its 
franchise,  even  temporarily,  so  as  to  release  itself  from  liability  for 
the  acts  and  defanlts  of  its  lessee.  Central  &  M.  R.  Co.  «,  Mor- 
ris, 28  Am.  &  Eng.  R.  R.  Cas.  60;  Gulf,  C.  &  S.  F.  K.  Co.  v. 
Morris  (Galveston  term,  1887). 

The  judgment  ie  reversed,  and  the  cause  remanded. 

Bee  note  to  Ciacinnati,  etc.,  R.  Co.  e.  Jones,  tvpra,  p.  491. 


OmcAoo  AND  Grand  Tbuwk  R.  Co. 
{Advanet  Com,  MieUgan.     October  13,  1887.) 

In  an  action  against  a  railroad  comp&nj  to  recover  damsKea  for  the  killiog 
of  stock  caused  b;  defective  fences,  plHintift  is  not  entitled  to  tbe  admiwon 
of  teetimony  to  show  that  others  of  the  plaiDtifTa  stock  had,  oa  seventl  oc- 
caaionB,  months  before,  been  Been  on  defendant's  right  of  way. 

In  Bucta  an  action  the  detend&nt  is  uot  entitled  to  the  instruction  that  "if 
the  jury  finds  from  the  teBtimony  in  the  cue  that  the  cow  was  stmck  in 
the  higbwa;  b;  the  defendant's  engine  and  killed,  the  plaintiff  cannot  re- 
cover," the  plaintiff  claiming  that  if  the  animal  was  upon  the  highway  erod- 
ing when  injured,  it  wm  because  of  tbe  neglect  of  the  defendant  to  properly 


^dbvGooglc 


KILLING   STOCK — DEFKOTIVE  FENCE.  533 

fence  its  track.     Such  instnictioa  excludes  nil  idea  that  the  defendant's  neg- 
ligence might  have  occsBioaed  the  cow's  being  u^d  the  highway. 

There  U  do  objection  to  a  statement  b;  the  court  to  the  jur;  of  the  defence 
relied  upOD:     An  inBtruction  that  if  the  plaintiff'a  cow  escaped  from  the 

SlaiDtiSs  field  through  a  defect  in  the  fence  which  it  was  the  duty  of  the 
efendant  to  erect  and  maintain,  acd  auch  defect  was  an  open,  visible  one, 
existing  for  some  time  before  thekilliog  of  the  cow,  Che  plaintiff  was  encilled 
to  recover  for  the  killing,  and  interest  on  such  value  of  animal  was  proper; 
-and  it  was  proper  also,  to  inform  the  jury  that  the  cow's  having  wandered 
to  the  public  highway  at  the  time  she  was  struck  was  immaterial. 

Appeal  by  defendant  from  a  judgment  of  the  Kalamazoo  cir- 
cnit  court  against  the  defendant  in  an  action  for  the  killing  of 
Btock  by  reason  of  tiie  neglect  of  the  defendant  to  fence  its  road 
and  keep  it  in  repair.     Reversed. 

Tlie  fiictB  are  stated  in  the  opinion, 

JMwardt  t&  Stewart  iind  E.  W.  Middaugh  for  appellant. 

Qeo.  M.  Suck  for  appellee. 

Sbkbwood,  J. — The  plaintiff  in  this  case  owns  40  acres  of  land, 
lying  in  the  township  of  Climax,  in  the  oonnty  of  Kalamazoo, 
"the  defendant's  railway  rtins  diagonally  across  the  northwest  cor- 
ner of  the  lot,  leaving  in  the  corner  cnt  off  a  triangular  F^cn. 
piece  of  gronnd,  containing  about  three  acres,  which  the  plaintiff 
nsed  during  the  season  of  18S4  for  pasture.  On  the  last  day  of 
May,  and  driring  the  month  of  June,  the  plaintiff  owned  a  cow 
and  some  hogs  which  were  pastured  in  tliis  corner  lot.  The  cow 
and  one  of  the  plaintiff's  hogs  were  run  over  by  defendant's  cars 
and  killed.  The  plaintiff  claims  that  by  reason  of  the  neglect  of 
the  defendant  to  fence  its  road  and  keep  it  in  repair,  where  it 
crossed  her  land,  ae  required  by  law,  her  cow  and  hog  passed  from 
her  pasture  field  into  the  defendant's  right  of  way.  and  upon  the 
track, where  they  were  killed  by  the  passingti'ains. 

The  cause  was  tried  before  a  jury  in  the  Kalamazoo  circnit  and 
the  plaintiff  recovered  a  judgment  of  {78.63.  The  plaintiff  brings 
■error. 

This  cause  was  originally  commenced  in  justice's  conrt.  The 
plaintiff  stated  her  case  in  three  counts  in  the  declaration,  and 
thereupon  counsel  for  the  defendant  moved  the  court  to  diemiss 
the  snit,  on  tlie  ground  that  it  had  no  jarisdictjon  in  the  case ;  for 
the  reason  that  the  plaintiff,  at  the  time  the  suit  was  commenced, 
resided  in  the  townauip  of  Climax,  and  that  the  jnstice  before  whom 
the  snit  was  brought  resided  in  the  city  of  Kalamazoo,  which  lies 
■entirely  within  the  territorial  limits  of  the  township  of  Kalamazoo, 
and  the  defendant's  road  only  passing  through  a  township  which 
■corners  wiih  the  township  of  Kalamazoo,  but  neither  adjoins  nor 
<!OPner8  with  the  city.  The  justice  overruled  the  motion.  The 
defendant  then  pleaded  the  general  issne,  and  the  cause  was  tried. 
On   the  appeal  to  the  circnit,  counsel  for  defendant,  when  the 


^d  by  Google 


534  JEBB  V.   ClircAGu   AND   GRAND   TEUNK   E.    OO, 

plaintiff  offered  lier  proofs,  objected  to  tlie  eame,  claiming  that  tlie 
court  had  no  jurisdiction  in  the  case,  for  the  same  reason  urged 
before  the  jnslice,  and  was  again  overruled.  This  ruling  is  now 
alleifed  as  the  defendant's  first  ground  of  error. 

We  think  the  ruling  was  correct.  How,  Stat.  §  6818,  provides 
that  suit  may  he  brouglit  "before  some  justice  of  a  eitj  in  the 
same  county,  formed  from  a  townsliip  or  townships  next  adjoiniog 
the  residence  of  the  plaintiff  or  defendant  oi'  one  of  the  plaintifra 
or  defendants."     And  by-Lawa  1885,  Act  No.  118,  it  is  fnrllier 

t}]'ovidcd  that  tlic  action  may  be  bronght  before  a  juetice  of  a  city 
^ing  in  a  township  wbicii  adjoins  tbe  townsbip  where  the  plaintiS 
or  defendant,  or  either  of  them,  resides.  Laws  1885,  p.  120.  It 
is  conceded,  by  tlie  record,  that  tlie  defendant  was  a  resident  of  the 

townsliip  of  Pavilion,  for  the  purpose  of  this  suit, 
JS^JS^""'  and  Pavihon  corners  with  the  townsliip  of  Kalamazoo; 

and  this  wouM  be  sufficient  to  enable  the  justice  before 
whom  the  suit  was  commenced  to  take  jnrisdiction.  How.  State 
§§  6861,  8147 ;  H-.tmes  v.  Carley,  31  N.  Y  289 ;  Burson  v.  Hunt- 
ington, 21  Mich.  415. 

We  find  nothing  in  the  charter  of  the  city  of  Kalamazoo  inter- 
fering with  the  statute  of  1885  herein  referred  to.  It  was  on- 
donbtedly  intended  to  apply  to  such  cases  as  the  present. 

The  plaintiff  relied  upon  the  insufficiency  of  the  defendant's 
fence  on  tiie  north  side  of  its  right  of  way  adjoining  her  paBture 
lot,  where  it  is  alleged  her  stock  came  upon  the  defendant  a  road, 
as  one  of  the  grounds  of  defendant's  negligence.  She  also  claimed 
that  the  insnfficiency  of  said  fence  had  existed  a  long  time  before 
her  property  was  killed,  and  that  she  gave  notice  to  the  company 
early,  of  its  defective  condition. 

It  does  not  appear,  from  the  testimony,  that  any  one  saw  the 
animals  killed  go  upon  the  defendant's  right  of  way  at  the  time 
they  were  injured ;  and  the  plaintiff,  after  proving  the  condition 
of  the  defendant's  fence,  was  allowed  to  show  by  several  witnesses 
that  othei'8  of  the  plaintiff's  stock;  sudi  as  her  hogs  and  sheep,  liad 
on  several  occasions,  months  before,  been  seen  on  the  defendent's 

right  of  way.  Connsel  for  defendant  objected  to  all 
oTMV™aTOe<  testimony  relating  to  the  other  animals  than  those 
nuci'""   '"'  killed  going  upon  the  defendant's  right  of  way.     The 

conrt  overruled  the  objection,  and  allowed  considerable 
testimony  of  tliis  character  to  come  in.  The  objection  should 
have  been  sustiined.  It  was  certainly  immaterial  to  show  what 
the  plaintiff's  other  stock  did,  and  especially  at  other  times  than 
when  the  animals  mentioned  in  tbe  declaration  were  killed. 

We  have  examined  the  declaration  and  proofs  claimed  to  be.at 
variance,  which  were  admitted  by  the  court,  and  cannot  agree  with 
the  learned  counsel  for  the  defendant  upon  that  subject,  in  this 


^dbyGoOglc 


KILLIMQ  STOCK — DEFECTIVE  FENCE.  635 

case.  We  tliiok  the  deolaration  was  snfficientlj  specific  to  admit 
the  proofs  which  were  proper  to  be  received.  We  flod  no  other 
objections  to  the  testimony  needing  further  consideration. 

Tiie  defendant,  npon  the  trial,  claimed  that  tlie  cow  came  opon 
the  track  of  tiie  defendant  in  the  highway,  when  tlie 
engine  strack  her.  And  the  plaintifTs  claim  was  that,  S^SSxia 
.if  the  cow  was  upon  the  highway  crossing  when  in-  w™™"™ir 
jnred,  it  was  becanse  of  the  neglect  of  the  defendant  to  SiricK.  *"" 
properly  fence  its  track.  Wlien  the  animals  were 
foQiid  after  being  killed  they  were  both  on  defendant's  right  of 
way,  beyond  the  highway  enclosnros. 

At  tlie  close  of  the  trial  the  defendant's  ooansel  asked  the  court 
to  instruct  the  jury ;  "  If  the  jury  finds  from  the  testimony  in  the 
case  that  the  cow  was  struck  in  the  highway  by  the  defendant's 
engine,  and  killed,  the  plaintiff  cannot  recover."  This  request  was 
properly  refused. 

Ihe  request  excludes  all  idea  that  the  defendant's  negligence 
might  have  been  tlie  occasion  of  the  cow  being  upon  the  highway, 
or  contributed  to  her  going  there. 

Several  portions  of  the  charge  were  excepted  to  by  the  defend- 
ant, as  given  by  the  court.  The  paragi-aphs  included  in  brackets 
in  the  following  extract  from  the  charge  contain  the  parts  excepted 
to,  viz. : 

"  [The  defendant  denies  tliat  the  fence  was  out  of  repair,  and 
denies  that  the  animals  got  upon  their  track  in  consequence  of  any 
defect  in  the  fence,  or  through  the  fence.] 

"  If  you  find  that  the  defendant  had  been  operating  the  railroad 
mentioned  in  the  declaration  in  this  c»ee  for  six  months  or  more 
before  tho  killing  of  the  plaimiffs  animals,  as  alleged  by  plaintiff, 
then  it  was  the  duty  of  the  company  to  erect  and  maintain  on  the 
side  of  its  road  fonces  four  and  a  iialf  feet  high  and  in  good  repair, 
consisting  of  rails,  timber,  boards,  stone  walls,  or  any  combination 
thereof,  or  other  things  equivalent  thereto,  and  of  such  reasonable 
strength  as  to  confine  or  turn  the  animals  usually  restrained  by 
fences  in  this  country.  But  if  these  animals  did  not  get  on  this 
tnick  in  consequence  of  any  defect  in  the  railroad  fence,  or  be- 
cause of  breachings  or  otherwise  it  would  make  no  difference  in  this 
case  whether  the  fence  was  in  repair  or  out  of  repair. 

"  [If  the  jury  finds  that  on  or  about  May  31, 1884,  a  cow  belong- 
ing to  piainciff  was  killed  by  an  engine  of  tlie  defendant,  running 
npon  the  railroad  operated  by  the  defendant,  and  that  such  cow 
escaped  from  the  plaintiff's  field  onto  the  railroad  track  by  reason 
of  a  defect  in  the  fence  which  it  was  the  dnty  of  the  defendant  to 
6reet  and  maintain  ;  and  that  such  defect  was  an  open,  visible  one, 
and  had  existed  some  time  before  the  killing  of  the  cow — then 
the  plaintiff  would  be  entitled  to  recover  the  value  of  the  cow,  and 
interest  on  such  value  from  the  timo  of  killing.] 


^d  by  Google 


536  JEBB  «.    CHICAGO   AND  GRAND  TRDNK   R.    00. 

"  [And  if  the  jury  find  that  on  or  near  the  said  31st  day  of  Maj, 
1884,  a  siioat  belonging  to  the  plaintiff  was  killed  by  an  engine  of 
defendant,  imnning  upon  the  milroad  operated  by  defendant;  and 
that  such  hog  escaped  from  plaintiffs  field  onto  the  railroad  track 
because  of  a  defect  in  the  fence  which  it  was  the  duty  of  the  de- 
fendant to  ei'ect  and  maintain,  and  that  snch  defect  was  nn  open 
and  visible  one,  and  had  existed  some  time  before  the  killing  of 
the  fihoat, — then  the  plaintiff  is  entitled  to  recover  the  value  of 
tlie  hog,  and  interest  from  the  date'of  killing.  So  that  yon  see  in 
both  cases  the  liability  of  the  company  depends  upon  tlie  question 
as  to  whether  or  not  the  cow  and  the  siioat  got  upon  the  track 
ill  cOnsequenoe  of  tlie  defect  in  the  fence.] 

"  [If  you  find  from  the  evidence  that  the  cow  escaped  from  the 
pasture  onto  the  track  through  the  fence  wliich  it  was  the  com- 
pany's duty  to  maintain,  and  that  snch  fence  w:is  insufficient  under 
the  rule  I  have  already  given  you,  then  tlie  defendant  would  be 
liable  to  the  plaintiff  for  killing  the  cow,  whether  tlie  cow  was 
upon  the  public  highway  or  not  at  the  time  she  was  strnck  by  the 
engine;]  but  that  of  course  depends  upon  whether  she  got  npon 
the  track  because  of  a  defect  in  the  fence. 

"If  site  had  escaped  from  the  lot  onto  the  highway,  and  so 
ODto  the  track,  and  was  killed,  then  I  chai^  you  tiiat  in  tliie  case 
the  plaintiff  would  not  be  entitled  to  recover  for  tlie  cow,  even 
though  you  should  find  that  she  was  killed  by  the  defendant's 
cars,  because  in  that  case  the  killing  would  not  be  occasioned  by 
the  injury  which  the  plaintiff  asserts  as  her  cause  of  action  in  thu 
case. 

"If  yon  find  from  the  testimony  that  the  plaintiff  left  her  cow 
in  question  running  at  large  in  the  highway,  and  defendant's 
catlle-gnard  and  siffeway  fences,  running  from  either  side  of  the 
cattle-guard  to  the  defendant's  Hgiit  of-way  fences,  were  pi\)perly 
constructed  and  in  good  repair,  and  that  the  cow  got  on  the  de- 
fendant's right  of  way  from  this  point,  and  was  struck  and  killed 
by  the  defendant's  engine, — the  plaintiff  cannot  recover, 

"It  is  not  enough  for  the  plaintiff  to  allege  and  show  that  the 
defendant's  fence  was  defective  along  its  right  of  way,  so  that  the 
cow  could  have  gotten  ontii  defendant's  track;  but  it  is  the  duty 
of  the  plaintiff,  in  order  to  entitle  her  to  recover,  to  show,  by  a 
preponderance  of  the  testimony,  that  the  cow — and  this  is  ti-ue 
of  the  shoat.  too— got  onto  the  track  because  of  and  through  the 
defective  place  in  defendant's  fence,  if  you  find  there  was  any; 
and  unless  she  has  established  that  fact  by  a  preponderance  of  the 
evidence  she  could  not  recover, 

"Now,  gentlemen,  I  think  I  have  said  all  that  I  need  to  say  io 
order  to  enable  yon  to  properly  dispose  of  the  issues  in  tiiis  case, 
[Tlie  question  with  reference,  to  both  of  these  animals  is,  First,  was 
this  fence  out  of  repair  as  cluiinud  by  plaintiff?     Second,  if  it  was, 


^d  by  Google 


KILLING   STOCK — STOPPING  TRAIN.  637 

did  the  cow  and  Log  get  on  the  track  because  of  that  defect  iit  tlio 
fence!]  If  tliey  did,  why,  tlien,  one  result  would  follow.  If  they 
did  not,  the  otlier  would  follow.  Now,  you  take  this  eyidence  and 
dispose  of  it  fairly  and  impatjtially,  and,  Iiaritig  done  so,  return  into 
court  with  a  verdict  which  will  be  in  accordance  with  the  law  aud 
evidence." 

In  answer  to  a  question  liere  put  by  a  juror  the  court  did  for- 
ther  instruct  the  jury  as  follows: 

"I  instruct  you,  as  a  matter  of  law,  that  a  bar,bed-*ire  fence  on 
that  railroad  track  would  be  just  as  lawful  and  just  as  legal  as  any 
other  fence,  provided  it  was  ordinarily  sufficient  to  prevent  stock 
and  animals  from  getting  onto  the  track.  That  is  the  asBuniptton 
of  law,  and  now,  since  18S5,  the  legisktui-e  has  taken  that  up  und 
regnldted  it  by  express  enactment,  and  has  said  of  what  in  future 
a  railroad  fence  in  which  barbed-wire  is  used  shall  be  constructed; 
but  this  accident  took  place  prior  to  that  law,  and  prior  to  that 
time  the  barbed-wiro  fence,  if  properly  constructed,  was  just  as 
lawful  and  just  as  legal  as  any  otner  fence. 

"But  the  question  whetljer  a  barbed-wire  fence  isalavfnl  fence 
or  not  is  not  involved  in  this  case  at  all.  The  only  question  is 
whether  that  fence  was  out  of  repair,  and  whether  the  animals  got 
through  that  fence  onto  the  track  because  it  was  out  of  repair." 

We  find  nothing  in  the  foregoing  charge  excepted  to  of  which 
the  defendant  need  complain. 

The  testimony  erroneously  admitted,  however,  was  of  a  damag- 
ing character,  and,  for  this  reason,  the  judgment  most  be  revereeo, 
and  a  new  trial  granted. 

The  other  justices  ooncnrred. 

fiea  note  to  Cincinnati,  etc.,  R,  Co. «.  Jonee,  mpni,  p.  481. 


Chioaqo  abd  Nobthwestebh  B.  Oo. 
(Advance  Cat,  Icua.     OOaier  34,  1887.) 

In  an  action  against  %  railroad  compao;  for  killlDg  stock  (the  question 
being  whether  it  wu  pouible  to  stop  the  train  after  the  stock  was  discor- 
ereii),  the  locomotive  firemen  on  the  train  in  question,  with  four  years'  ex- 
perience, may  give  bis  opinion  as  a  witness  on  the  question  whether  or  not 
there  was  time  to  stop  the  train  within  a  certain  distance  of  an  animal  on 
the  track. 

Where  it  is  undisputed  that  the  engineer,  after  diacoverlng  the  cattle  on 


^d  by  Google 


B38     OBIUUELL  V.    CHICAGO  AND   N0BTHWB5TEKN   B.    CO. 

the  track,  bad  time  to  stop  the  train  before  the  kc<ndent,  it  ii  not  error  to 
exclude  evideace  as  to  the  precise  time  when  he  first  diacovered  the  cattle. 

Where  the  court  has  properly  instructed  the  jurj  ae  to  the  defendant'* 
duty  uader  the  particular  circumstanceB  of  the  case,  it  is  not  error  to  ref  dm 
an  iostruction  that  the  defendant  woe  not'  bound  to  use  extraordinary  care 
but  only  ordinary  care. 

Where  an  eugiueer  diacoverfl  an  animal  upon  the  track,  it  is  bia  dnty  b> 
atop  the  traio  if  he  has  a  reasonable  apprehension  that  it  will  remain  there. 
He  is  not  bound  to  anticipate  that  it  would  remain  on  the  tnck  before  it  i» 
bis  duty  to  atop  the  train. 

Appeal  from  district  court,  Gi-eeii  county. 

Action  to  recover  for  tlie  value  of  a  lieifer,  killed  by  ooe  of  the 
defeiidaiit'e  ti-aiiis.  T  liere  was  a  trial  to  aia''7)  aod  verdict  and 
judemerit  werercndei-ed  for  tlie  pkiiitiff.    Tiie  defendant  appeals. 

n-ubhard,  Clark  dc  Dawley  for  appellant.    - 

McDuffie  tfe  Howard  for  appellee. 

Adaub,  C.  J. — Tlie  animal  was  one  of  eeveral  which  happened 
to  be  upon  a  croseing  of  the  defendant's  road,  as  the  train  in  qnes- 
Fioti.  tion  approached   tho  croaaiiig.     The  speed  was  slack- 

ened, and  the  usnal  cattle  alarm  was  given  to  frighten  the  animals 
from  the  track.  All  left  the  track  except  the  one  which  was 
killed.  This  one  delayed  a  little  as  the  train  approached,  and  sud- 
denly tnrned  and  ran  along  the  track  a  few  feet,  and  fell  into  a 
cattle-guard,  where  it  was  hit  by  the  train.  The  plaintiff  alleged 
that  the  defendant  was  gnilty  of  negligence  in  not  stopping  the 
train  before  the  accident  occurred.  The  defence  was  baaed  upon 
the  theory  that  the  engineer  was  justified  in  believing,  before  the 
animal  tnrned  toward  the  cattle-guard,  that  it  would  leave  the 
track,  and  that  after  it  turned  toward  the  cattle-guard,  and  showed 
a  disposition  not  to  leave  the  track  but  to  run  hito  the  cattle-guard, 
there  was  not  sufficient  time  to  stop  the  train.  > 

1.  One  Ci'eed  was  examined  as  a  witness.  He  testified  that  he 
BiPER  Tom  ^'""^  been  in  the  defendant's  employment  as  a  locomo- 
KORT  OF  nu  tive  fireman  for  four  years,  and  was  acting  as  fireman 
""■  on  the  train  in  question.     He  was  then  asked  a  q^nee- 

tion  in  these  words:  "  State  wiiether  or  not  after  she  [tlie  animal] 
made  that  turn  tiiere  was  then  time  to  stop  the  train  t"  To  this 
he  answered  "No."  This  question  and  answer  were  afterward 
stricken  out  on  the  plaintifE  s  motion,  and  the  defendant  assigns 
the  rulinpr  as  error. 

The  objection  to  the  testimony  which  the  plaintifE  urges  is  that 
the  witnesB  was  asked  for  an  opinion,  and  that  the  matter  was  not 
Buch  as  to  justify  the  admission  of  expert  evidence,  and,  even  if  it 
had  been,  the  witness  did  not  appear  to  be  qualified  to  testify  as  an 
expert.  But  in  our  opinion  neither  of  these  positions  can  be  sns- 
lained.  The  question  as  to  the  time  or  distance  under  which  a 
given  train,  under  a  given  set  of  circumstances,  can  be  stopped,  is, 


^d  by  Google 


KILLING  8T00K — STOPPING  TRAIN.  OSQ- 

ve  think,  one  wliicli  iorolTes  technical  knowledge  and  experience, 
or,  at  least,  the  exercise  of  jiidgtiient  upon  so  many  different  facts, 
bearing  npon  eacli  otlier,  tfjat  a  mere  detailed  gtatenient  of  tliunt 
woald  not  be  a  suflEcient  guide  for  the  jury.  The  witness,  as  fire- 
man npon  the  train,  liad  knowledge  of  tlie  factsand  circumataiicee,  ' 
and,  from  his  fonr  years'  experience,  should  have  been  ahle  to  ex- 
ercise an  inteilis;ent  judgment  as  to  their  bearing  upon  each  other. 
We  think  that  the  question  asked  the  witnesa,  and  tlie  answer  made 
by  him,  should  not  have  been  excluded.  Perhnps,  strictly,  the 
witness  sJionld  have  been  asked  within  what  time  and  distance  that 
train  could  have  been  stopped  under  the  circumstances,  and  then 
what  the  time  and  distance  were  whicii  were  allowed  the  engineer 
'  to  stop  the  train  after  the  animal  turned ;  but  the  plaintiffs  objec- 
tion did  not  appear  to  go  to  the  form  of  examination.  If  the 
Elaintiffs  objection  had  been  of  that  nature,  we  think  it  should 
ave  b^en  distinctly  stated  by  him,  so  that  tlie  defendant  might 
have  obviated  it.  The  only  objetrtion  made  below  was  that  the 
evidence  was  incompetent  and  immaterial. 

2.  One  Bates,  the  engineer,  was  examined  as  a  witness,  and  was- 
asked  a  question  in  these  words:  "When  you  first  looked  out 
there,  state  whether  or  not  you  conld  see  the  cattle."  ^^ 
This  question  was  objected  to,  and  the  objection  was  mowMS-Tnut 
flnstained.  The  defendant  assigns  the  ruhng  as  error,  wim  ratr 
We  do  not  see  how  the  defendant  was  prejndieed  by 
the  excUision  of  the  question.  It  might  be  conceded  that  the  cat- 
tle were  not  seen  at  tirst,  but  it  seems  to  be  undispnted  that  they 
were  seen  soon  enongii  to  stop  the  train  if  it  had  been  necessary.. 
The  fact  is  the  engineer  did  not  deem  it  neceSsary.  He  checked 
the  speed  and  appro-iclied  the  cattle  slowly,  giving  the  alarm  which 
he  thought  wonld  be  sufficient.  If  he  had  seen  the  cattle  sooner, 
his  duty  would  not,  so  far  as  we  can  see,  have  been  different.  He 
was  bound  to  use  reaeonahle  care  to  avoid  running  over  the  cikttie, 
and,  withont  question,  he  had  snfficient  time  to  avoid  running  over 
them  after  they  were  seen.  We  are  aware  tiiat  in  one  of  the  in- 
etmcttons  the  jury  was  told,  in  substance,  that  the  engineer  on<;lLt 
to  have  seen  the  cattle  sooner,  if  they  had  been  in  sight.  Now  if, 
as  the  instruction  seems  to  assume,  the  failure  to  see  the  cattle 
sooner  had  had  anything  to  do  with  the  defendant's  liability,  it 
migiit  be  conceded  that  the  defendant  would  iiave  been  entitled  to 
show  that  they  conld  not  have  been  seen  sooner.  But  it  appears 
to  08  tliat  the  error  was  rather  in  the  instnicttOD  than  the  exchi- 
sion  of  tlie  evidence. 

8.  The  defendant  asked  the  court  to  instruct  the  jury  that  it 
was  not  boand   to  use  extraordinary  care,  but  only  ordinaiy  care. 
The  court  refused   the  instruction,  and   the  defendant     diobh    or 
assigns  the  refusal  as  error.     The  court  instructed  the    "*"*■ 
jury  with  some  particularity  as  to  what  the  defendant  shontd  have 


^d  by  Google 


54l>        GEIMMELL  V.  CHICAGO  AND  NO RTHWaSTEEN  E.  CO. 

dune,  and  we  do  not  think  that  tlie  jury  coald  have  been  misled 
US  to  the  degree  of  care  which  the  law  required. 

4.  The  defendant  ^ked  an  instruction  m  these  words:  "TTnlesfl 
yoii  find  that  the  engineer,  in  tiie  exercise  of  ordinary  prudence, 
•  was  bound  to  anticipate  that  the  lieifer  would  Etay  on  the  track,  or 
whu  „.^.  ■""'^  '"*"  ^''^  cattle-euard,  jour  verdict  shonld  be  for 
iBBomin'mmOT  the  defendant."  The  court  refused  to  give  this  ia- 
etruction,  and  the  defendant  assigns  the  refusal  as  er- 
ror. The  defendant's  counsel  say  in  argument ;  "This  is  the  very 
pivotal  point  of  the  case."  But  it  seems  to  UB  that  tlie  enffineer 
might  have  heen  under  obligation  to  stop  his  engine,  even  though 
lie  did  not  anticipate  that  the  animal  would  stay  on  the  track,  or 
run  into  the  cattlc-guai'd.  He  might  have  reasonably  believed 
that  she  would  leave  the  track,  and  at  the  same  time  might  have 
liad  a  reasonable  apprehension  that  she  would  not,  but  would  See 
before  the  engine  iiloug  the  track,  and  rnn  into  the  cattle-guard. 
It  is  not  always  quite  enough  for  a  person  to  provide  against  what 
ho  believes  or  anticipates  will  happen.  It  is  his  duty  sometimes 
to  provide  against  what  he  apprehends  may  happen.  Prudent 
property  owners  constantly  coneult  their  apprehensions  in  attempt- 
ing to  guard  against  loss  of  property.  We  think  that  the  instruc- 
tion was  properly  refused. 

6.  The  defendant  asked  an  instrnction  in  these  words :  "  If  you 
£nd  tliat  the  natural  thing  for  cattle  on  a  crossing,  under  such  cir- 
cumstances as  shown  in  tliis  case,  would  be  for  them  to  leave  the 
track  instead  of  running  into  the  cattle-guard,  then  tlie  engineer 
was  justified  in  thinking  that  the  cattle  would  leave  the  track,  and 
it  was  not  negligence  for  him  not  to  stop  or  reveree  his  engine 
sooner  than  he  did,  and  the  defendant  would  not  be  liable  in  this 
case."  The  court  refused  to  give  the  instruction,  and  the  defend- 
ant assigns  the  refusal  as  error.  This  instruction  it  appears  to  ub 
has  substantially  the  same  vic^as  the  last  above  considered.  It 
might  have  heen  more  natural  for  all  the  animals  to  do  just  what 
all  but  one  did  do,  and  the  eneineer  might  have  been  justified  in 
tliinking  that  all  wonld  act  alike,  jet  it  may  be  that  he  should,  aB 
A  reasonable  man,  have  apprehended  that  the  one  which  did  not 
leave  would  soon  take  fnght,  and  in  its  Sight  flee  dii-ectly  before 
the  engine,  and  run  into  the  cattle-guara  which  was  so  near  at 
hand,     w'e  think  that  the  instruction  was  properly  refused. 

Borne  other  questions  are  discussed,  bnt,  so  far  as  they  are  likely 
to  arise  upon  another  trial,  we  think  that  they  are  substantially 
covered  by  the  views  wliicli  we  have  expi'eseed. 

For  the  error  pointed  out  the  judgment  must  be  reversed. 

See  note  to  Cmdmiati,  etc.,  B.  Co.  e.  Jones,  tapra,  p.  491. 


^d  by  Google 


KIIJ.lNa  STOCK— UUBdES  AT  LAOSE. 


Chioaqo,  Rook  Islamd  and  Paoifio  R.  Oo. 

(AdtOHM  Gate,  loaa.     Jum  21,  1887.) 

Plalotifl  turned  his  bones  loose  for  a  brief  period  in  nn  enclosed  lot  sd- 
joiniog  K  highwaj.  There  was  an  aperture  for  a  gate  on  the  side  next  to  the 
highway,  which  was  left  open  eicepC  for  a  single  loose  bar  about  four  feet 
from  the  ground.  The  horses  pushed  this  bar  aside,  eecaped  ioto  the  high- 
wa;,  and  upon  Che  crosBine  where  owieg,  as  alleged,  to  a  defective  catue- 
guard  the;  were  killed  bj  defeadaDl's  train.  In  aa  action  against  the  com- 
pan;  for  iujurj  to  the  stock  the  company  pleaded  contributor;  negligence, 
in  that  the  plaintiS  permitted  hie  horses  to  run  at  large,  contrar;  to  the 
Iowa  herd  law.  On  the  trial  a  model  of  the  cattle-guard  was  shown  to  the 
jur;;  also  evidence  showing  depth  of  the  pit  under  the  timbere,  and  the 
size,  length,  and  description  of  the  timbers,  and  the  manner  in  which  they 
were  placed.  The  court  instructed  the  jur;  that  if  the;  found  that  tha 
horses  passed  over  the  guard  b;  stepping  between  the  cross-ties,  and  that 
other  cattle-guards  somewhat  diSerentl;  constructed  were  being  used  else- 
where, that  these  facts  alone  would  not  iustif;  the  jury  in  drawing  the  in- 
ference that  the  cattle-guard  was  either  deiectivel;  constructed  or  insuffirieat. 
The  court  then  modified  the  above  by  adding;  "That  is,  you  cannot  draw 
such  inference  from  such  facts  alone;  .  .  .  but  such  facts  ...  are  proper 
for  Ton  to  consider  in  connection  with  the  other  evidence  in  the  case  relating 
to  the  character  or  insuScienc;  of  the  cattle-guards."    Meld: 

1.  That  the  failure  of  the  trial  court  in  stating  tbe  issues  to  the  jur;  to 
present  the  question  of  contributory  negligence  was  not  error,  in  view  of 
the  fact  in  a  subsequent  instruction  the  court  correctly  stated  the  law  as  to 
the  duty  of  the  defendant  to  restrain  hla  stock.  It  is  not  required  that  the 
issues  should  be  stated  in  a  single  paragraph  of  the  charge. 

3.  That  instruction  as  to  the  insufficiency  of  the  cattle-guard  was  not 
erroneous,  there  being  sufficient  "other  evidence"  of  the  character  of  the 
guards  to  justify  the  modiflcation  imposed  by. the  court. 

8.  That  it  was  for  tbe  jury  to  say  whether  turning  the  horses  into  the  tot 
nnder  tbe  circumstances' was  contributor;  negligence,  or  equivalent  to  allow- 
ing them  to  remain  at  large  within  tbe  meaning  of  the  Iowa  herd  law. 

Appeal  from  district  court  Jasper  connty. 

Action  to  recover  the  valneof  certain  liorsee  killed  or  iDJnred 
by  a  train  on  the  defendant's  road  because  of  an  insufficient  cattle- 
guard.  The  defendant  pleaded  a  general  denial,  and  contribntory 
negligence  on  tlie  part  of  the  pTaintiff.  Trial  by  jnry.  Judg- 
ment for  the  plaintiS,  and  defendant  appeals. 

T.  S.  Wrwht  and  WinaUrw  <&  Vanvum  for  appellaut. 

Alanaon  Clark  for  appellee. 

Seevebb,  J. — The  defendant's  railway  vas  fenced,  but  the  theory 

Digitized  by  Google 


.542         TXMINS  V.    CHICAGO,   KOCK   ISLAND,    e4c.,   B.   CO. 

of  tlie  plaintiff  is  that  the  hoi-ses  got  on  the  mlwaj  becanee  a  cat- 
tle-guard at  a  hiehwaj'  croeeing  wae  insufficient. 

1.  In  stating  me  issnee  to  the  jmv,  the  court  failed  to  state  the 
defendant  had  pleaded  that  the  pl:iinti£E  was  guilty  of  contributorj 
negligence  in  permitting  liis  stock  to  roam  at  large.  It  is  con- 
^^  ceded  that  tiie  herd  law  was  in  force,  and  tlie  defend- 
ruuNnHo  ant  insists  the  plaintiff  did  not  restmiii  his  stock  as  re- 
iMDTOKT  iHi-  quired  by  that  law.     The  point  is  well  taken  as  to  the 

statement  of  the  issues,  except  that,  in  die  eighth  in- 
struction given  the  jury,  the  court,  it  must  be  assumed  for  the 
t)nrpo6es  of  the  quescion  under  consideration,  correctly  stated  the 
aw  as  Co  tiie  duty  of  the  pbintiff  in  relation  to  restraining  his 
stock.  It  is  not  required  that  tlie  iaaues  sliould  all  be  stated  in  a 
single  paragrapli  of  tlie  charge.  It  is  sufficient  if  they  are  fairly 
and  sufficiently  stated  to  the  jury,  in  some  part  of  the  charge,  in 
such  manner  as  to  be  undei'stood  by  the  jury,  and  this  we  think 
was  done.  The  eighth  instruction  reqiiii-es  the  jury  to  determine 
whetiier  the  plaintiff  did  restrain  his  stock  as  required  bylaw; 
and  the  plaintiff's  duty  in  this  respect,  it  must  be  assumed,  was 
correctly  stated. 

2.  The  defendant  asked  the  court  to  instruct  tlie  jury  as  follows: 
"  You  are  not  at  liberty,  ns  juroi-a,  to  take  tlie  fact  that  the  stock 
mentioned  in  the  plaintiff's  petition  passed  over  the  cattle-guard  in 

question  by  stepping  between  or  upon  the  cross-ties 
SttlS^oi™  "^f  tl's  cattle-guard,  if  such  you  find  was  the  case,  and 
j^uai     TO  (],g  fui-ther  fact,  if  this  you  also  find,  that  cattle-guards 

somewhat  differently  constructed  were  also  in  use,  and 
from  that  draw  the  inference  tliat  the  cattle-guard  was  either  de- 
fectively constructed  or  insufficient."  That  the  court  modified  by 
adding:  "That  is,  yon  cannot  draw  such  inference  from  such  facts 
atone,  if  established ;  but  such  facts,  if  established,  are  proper  for 
you  to  consider  in  connection  with  the  other  evidence  in  the  case 
relating  to  the  character  or  insufficiency  of  the  cattle  guard,"  We 
undoi'stand  counsel  for  the  appellant  to  insist  that  there  was  no 
other  evidence  "relating  to  thecharacter  or  sufficiency  of  the  Ciittle- 
giiard"  thaJi  is  referred  to  in  the  instruction  as  asked,  and  thei-e- 
fore  the  court  erred  in  modifying  it.  In  this  we  think  counsel  are 
mistaken,  A  model  of  the  eattle-gu-ii-d  was  before  the  jury,  and 
also  evidence  showing  the  depth  of  tlie  pit  under  tlie  timbers  of 
which  it  was  composed,  and  tliere  was  evidence  tending  to  show 
the  size,  lengtli,  description,  and  the  manner  euch  timbers  were 
placed.  It  therefore,  we  tiiink,  was  for  the  jui;y  to  say,  taking  into 
consideration  all  tlie  foregoing  facts  and  circumstances,  whether  or 
not  the  cattle-gnard  was  reasonably  sufficient  for  the  purposes  for 
which  it  was  constructed.  This  case  is  distinguishable  from  Case 
V.  Chicago,  R.  I.  &  P.  It.  Co.,  64  Iowa,  762,  in  which  the  holding 
is  that  an  accident  does  not  raise  a  presumption  of  uegligeuce. 


^d  by  Google 


KILLING  STOCK — HORSES   AT   LAEOK.  643 

3.  Special  interrogatories  were  submitted  to  the  jnry,  and  it  is 
Baid  tlie  court  erred  iu  receiving  the  answer  to  one  of  tliena,  be- 
cause it  was  indefinite,  uncertain,  and  in  the  nature  of 
a  conclusion.  This  objection  Beema  to  be  raised  for  iJS5^"  „ 
the  first  time  in  tliia  court,  and  tlieref  ore  is  made  too  late.  KK^mS^" 
If  the  answer  to  the  interrogatory  was  deemed  insuffi- 
cient it  should  liave  been  objected  to  at  the  time,  so  that  the  court 
could  liave  required  the  jury  to  make  their  answer  more  definite 
and  certain. 

i.  Tlie  horses  were  killed  or  injured  during  the  night  of  the 
21at  of  May.  During  that  day  the  plaintiff  iiad  been  using  them 
in  plowiiig,  and  about  7  o'clock  in  the  evening  took  the  horses 
home,  and,  witiioot  watering  or  feeding,  turned  them  into  a  lot 
where  there  was  some  grass.  The  lot  was  fenced  but 
a  place  was  left  for  a  gate  or  bars.  Aci'oss  this  opening  rum-oamaa. 
the  plaintiff  placed  a  pole  about  four  feet  from  tiie  ™ifJt-™{i 
ground,  and  it  was  probably  pushed  down  by  the  horses,  ""  ""■ 
and  they  escaped  to  the  highway.  A.t  least  the  pole 
was  on  the  ground  when  the  plaintiff  went  to  look  for  his  hoi'ses 
about  half  an  hour  after  he  placed  them  there.  Counsel  for  the 
defendant  insist  that,  as  a  matter  of  law,  tlie  plaintiff  was  guilty 
of  contributory  negligence,  and  that  the  court  should  h»ve  so  in- 
structed the  jury.  In  Krebs  v.  Minneapolis  &  St.  L.  R.  Co.,  64 
Iowa,  670,  it  appeai-ed  that  the  herd  law  was  in  force  and  that  the 
defendant  had  the  right  but  failed  to  fence,  and  it  was  held  that  it 
was  liable  in  the  absence  of  a  showing  that  a  wilful  act  of  the  plain- 
tiff had  caused  or  contributed  to  the  killing  of  the  stock.  In  Mc- 
KinJey  v.  Kailroad  Co.,  47  Iowa,  79,  it  was  said :  "  The  law  will 
regard  insutScient  fastening  as  no  fastening;  and  a  fence  with  a 
gateway,  but  without  a  gate,  as  no  fence. 

Tills  action  was  not  brought  under  section  1289  but  under  1288 
of  the  Code,  which  provides  that  railway  corporations  must  con- 
struct, at  all  highway  crossings,  a  sufficient  cattle-guard  ;  and  it  is 
insisted  that  the  plaintiff  is  guilty  of  contributory  negligence  be- 
cause he  placed  his  iioi«es  in  a  lot  which  was  not  enclosed  with  a 
lawful  fence,  or  was  not  sufficiently  enclosed ;  and  we  are  asked  to 
so  hold.  In  considering  this  question,  it  may  be  conceded,  for  the 
purposes  of  this  opinion,  that  such  would  have  been  the  rule  if  the 
plaintiff  had  turned  his  horses  into  such  enclosure  in  the  morning, 
and  permitted  them  to  remain  there  until  night.  ^We  can  readily 
conceive  it  to  be  a  usual  occurrence  for  a  farmer,  when  he  quits 
work  in  the  evening,  to  turn  tlie  horses  he  lias  been  working  with 
during  the  day  into  a  barn  lot,  or  other  enclosure,  for  a  short  time 
before  feeding  them,  for  some  good  and  sufficient  reason.  In  this 
case  the  plaintiff  desired  to  get  his  own  supper  before  feeding  his 
horses.  We  are  not  prepared  to  hold  that  before  doing  so  he  must 
see  that  tlie  lot  is  enclosed  with  a  lawful  fence.    The  plaintiff  iu- 


^dbyGoOglc 


644  PALMEE  V.    NOETHEEN   PACIFIC   B.    CO. 

tended  the  lioreee  to  remain  in  tbe  lot  for  a  brief  period  of  time, 
or  wliile  lie  ate  liis  snpper;  and,  while  anything  lees  tlian  a  lawful 
fence  may  be  regarded  as  no  fence,  we  think  it  waa  for  t!ie  jnry  to 
Bay  whether  the  plaintiff  was  gnilty  of  contributory  negligence. 
Ufider  tbo  herd  law  Block  is  prohibited  from  remaining  at  large 
during  certain  lioure  of  the  day ;  but  we  think  it  was  for  the  jury 
to  aay  whether  tlie  plaintiff's  horses  eliould  be  regarded  as  remain-  . 
iiig  at  large  when  they,  under  the  ci re um stances,  were  turned  into 
the  lot.  It  follows  from  what  we  have  said  that  the  eighth  para- 
graph of  the  charge  is  correct. 

5.  Against  the  objection  of  the  defendant,  counsel  for  the  plain- 
tiff waa  permitted  to  read  tiie  special  interrogatories  to  the  jury, 
"  and  to  indicate  to  said  jury  what  answer,  in  his  judgment,  should 
oomDCT  OF  ^^  made  to  each  of  said  questions  specifically  ;  tliat,  at 
coi;ssn_  ([j[g  time,  plaintiff's  counsel  said  lie  would  only  com- 

ment on  them  from  the  evidence,  and  stated  what  he  claimed  the 
evidence  showed;  that  in  said  statement  the  said  attorney  told  the 
jury  that  they,  under  the  evidence,  should,  in  his  judgment  of  the 
evidence,  answer"  the  qnestion  in  the  manner  and  form  as  indi- 
cated by  said  attorney.  Tlmt  it  is  competent  for  an  attorney  to 
read  special  interrogatories  to  the  jury,  and  discuss  the  evidence 
applicable  thereto,  must  be  conceded  ;  and  it  seems  to  us  that  the 
court  onght  not,  without  good  reasons,  to  hiterfere  with  such  right. 
It  is  difficult  to.  see  how  an  attorney  can  properly  discnss  the  evi- 
dence bearing  upon  any  qnestion  tiie  jniy  is  required  to  answer 
without  indicating  qnite  plainly  how,  in  his  judgment,  the  ques- 
tion should  be  answered.  Under  the  showing  made  as  to  what  the 
attorney  did,  we  are  not  prepared  to  say  the  court  erred  in  any 
respect  in  refusing  to  sustain  the  objection  of  counsel  for  appellant. 

We  do  not  think  tbe  verdict  is  against  the  evidence,  aad  there- 
fore the  judgment  is  affirmed. 

Bee  note  to  Ciocinnati,  etc.,  R.  Co,  «.  Jonea,  Mpro,  p.  491. 


NoKTHEBy  Paoifio  R.  Co. 

(Advanu  OaM,  Minnetota.    J^dy  20,  1887.) 

Rulo  that  In  case  of  an  Bnimal  trespasaing  on  the  track  of  a  railroad  com- 
paoy,  without  the  fault  of  the  company,  there  is  no  duty  of  watchfulnew  on 
the  part  of  thoM  in  charge  of  ite  traias  to  aacert&in  if  the  animal  be  there, 
and  that  their  duty  of'  care  iritb  respect  to  it  arises  only  npon  their  discov- 


^d  by  Google 


KILLING  STOCK   WRONGFULLY   UPON   IIIGIIWAV.  G45 

ering  its  peril,  applies  as  nell  in  the  case  of  an  animal  wroDgfully  upon  ft 
highway  at  a  railroad  crOHHiDg. 

Appeal  fi-om  dietrict  court,  Wadena  county. 
B.  F.  Hartekom  for  Palmer,  respondent. 
John  a  BuaUt  and  W.  F.  Clough  for  Northern  Pao.  R.  Oo., 
appellant. 

GiLFiLLijr,  0.  J. — Action  for  running  npon  and  killing  plaiii- 
tifTs  liorse.  The  boree  was  at  large  in  a  public  bigbwaj,  graz- 
ing near  the  crossing  of  defendants  road,  wlien,  a  train  of  cars 
coming  along  at  its  usual  speed,  tJie  Lorse  nin  upon  the  padti, 

track,  in  front  of  tbe  train,  and  the  train  ran  upon  and  killed  it. 
It  does  not  appear  tbat  the  electors  of  the  town  had  determined 
where  cattle,  liorsee,  etc.,  should  be  permitted  to  go  at  large.  Tbe 
horse  was  therefore  wrongfully  in  tbe  highway.  It  is  doubtful 
that  the  evidence  as  to  tlie  defendant's  negligence,  and  also  as  to 
contributory  negligence  on  the  part  of  plaintiff,  was  snch  as  to 
jaatify  submitting  tbe  case  to  the  jnry.  Conceding,  however,  that 
it  was,  still  there  must  be  a  new  trial  for  refusal  of  the  court  to 
instruct  the  jury  as  requested  by  defendant. 

There  were  seveial  requests  on  its  behalf,  presenting,  in  various 
forms,  practically  the  same  proposition  which  the  court  refused  to 
give.  We  need  specify  only  two  of  them,  as  they  ex- 
press  tbe  gist  of  all:  "If  the  jury  believe  from  the  omMxroBi* 
evidence  that  the  plaintiff's  horse,  at  tbe  time  of  tbe  in-  "™*"^ 
jury  complained  of,  was  running  at  large,  it  is  instructed  that  the 
verdict  must  be  for  defendant,  unless  it  further  believes  that,  after 
tbe  discovery  of  the  peril  of  the  horse,  the  defendant's  serrants 
were  guilty  of  negligence,"  and  that  if  tbe  horse  was  running  at 
large,  plaintiff,  in  order  to  recover,  must  prove  two  facta,  viz.: 
"That,  prior  to  actually  striking  the  horse,  the  defendant's  ser- 
vants discovered  its  peril ; "  and  "  tbat,  after  the  discovery  of  the 
horse's  peril,  defendant's  servants  failed  to  do  something  which 
they  ought  to  have  done  to  avoid  striking  it,  and  which,  if  done, 
would  have  been  effectual  to  prevent  the  collision." 

Tiiese  propositions,  or,  rather,  this   proposition,  twice  stated,  is 
in  exact  accord  with  what  was  decided  by  this  court  in  Locke  U 
Fii-st  Div.  St.  P.  &  Pac.  R.  Co.,  15  Minn.  350  (Gil.  283),  and  iw- 
iterated  in  Witherell  v.  Milwaukee  &  St.  P.  R.  Co.,  24  Minn.  410. 
It  is  true  those  were  cases  where   the   animals  were 
wrongfully  upon  the  lands  of  the  railroad  company,  Dmnmunimr 
while  in  this  it  was  wrongfully  upon  tbe  highway,  at  «™i  ™it  an- 
the  place  wltere  tbe  trains  had  a  right  to  cross — there  •»  tuqe 
through  the  fault  of  the  plaintiff,  and  not  of  defendant. 
This  difference  makes  no  difference  in  tlie  principal.     In  either 
case  those  in  charge  of  the  train  were  not  bound  to  presume  tbat 
the  animal  would  oe  where  it  was.    They  *'  had  a  right  to  preBome 
81  A.  ft  fi.  R.  Cas.— 86 


^d  by  Google 


646   FOET  WAYNE,  CINCINNATI,  ETC.,  E.  00.  fl.  WOODWAED. 

that  tlie  plaintiff  wonld  keep  her  at  home,  where  alone  8he  be- 
longed ;  consequently  they  owed  no  duty  to  plaintiff  to  look  ahead, 
and  see  where  tlie  animal  was."  Locke  v.  Railroad  Co.,  supra. 
Their  dnty  to  persons  or  animals  riglitfully  on  the  highway  would 
have  required  them  to  be  on  the  lookout  to  ascertain  if  there  was 
any  chance  of  injury  to  snch  persons  or  animals;  bnt  witli  that 
duty,  and  its  extent  and  its  observance,  the  plaintiff,  whose  animal, 
through  his  own  fault,  was  wrongfully  there,  had  no  concern. 
Defendant  is  in  no  way  answerahle  to  plaintiff  for  any  neglect  in 
its  duty  toward  others.  Without  any  dnty  to  anticipate  tliat  the 
horse  might  be  in  danger,  or  to  exercise  care  to  ascertain  if  it  was 
in  danger,  the  doty  of  tliose  incliargeof  the  train  of  cara  in  re- 
spect to  the  horse  arose  from  tJie  time  they  discovered  it  was  in 
danger.    Order  reversed. 

Sebrt,  J.,  by  reason  of  illness,  took  no  part  in  the  deciuoD  of 
this  case. 

Bee  note  to  Cincinnati,  etc.,  B,  Co.  v.  Jones,  lupra,  p.  191, 


FoBT  Watbb,  CmonnfATi  and  Louibtillb  R.  Oo. 


(Adwmee  Oaie,  Iftdiaruf.     OOtibfr  13,  1887.) 

Where  a  lanil-owner  adjoining  a  railroad  track  habitually  turns  bis  hones 
upon  the  right  of  wa;,  through  a  gate  maintained  for  hia  accommodation,  as 

'eot  nay  for  them  to  go  to  and  fron     "^     .......    .,.,^   >._...• 

o  claim  compensation  for  injuries  b 

Appeal  from  circuit  conrt,  Allen  county;  E.  O'Boubke,  Judge. 
Coombs,  Sell  c&  Morris  for  appellant. 
W.  6.  CoUrick  for  appellee. 

Mrro^BLL,  J. — Conceding  that  the  complaint  stated  facts  snfB* 
cient  to  constitute  a  cause  of  action,  we  have  concluded,  after  an 
attentive  consideration  of  tlie  evidence  in  the  record,  that  the  judg- 
ment of  the  circnit  court  is  not  sustained  by  the  proof. 

The  case  made  is  briefly  as  follows:  The  plaintiff  was  in  the 
habit  of  pasturing  his  horses  on  a  narrow  strip  or  tract  containing 
F<cn.  about  foar  acres  of  land,  lying  lengthwise  along  the 

appellant  railway  company's  right  of  way  in  Wells  coanty.  This 
strip  of  ground  was  secnrely  fenced  all  round,  except  that  there 


^d  by  Google 


KILLING  STOCK — KEOLIGESCE  OF  OWNEE.  647 

"was  no  fence  between  it  and  llie  company's  riglit  of  vaj.  In 
■order  to  gain  access  to  the  pastnre,  a  gate  had  been  erected,  and 
was  being  maintained  with  tlie  company's  permiesion,  throueh  a 
fence  erected  by  the  company  along  a  public  highway  over  which 
ita  right  of  way  had  been  levied.  It  liad  been  the  plaiiitiS'e  habit 
to  turn  his  horses  from  the  liigbwav  through  the  gate  thus  main- 
tained,  and  to  allow  them  to  paea  thence  along  and  over  tlie  com- 
pany's right  of  wiiy  some  10  or  12  rods,  until  they  reached  a  point 
■where  they  oonld  pass  from  the  right  of  way  onto  the  pasture  lot, 
whicli  lay  in  common  with  the  right  of  way.  It  is  to  be  inferred 
that  the  gate  was  erected  and  maintained  by  and  for  the  benefit  of 
the  owner  of  the  pasture  lot.  It  was  the  plaintifi's  custom  to 
observe  when  the'  last  train,  as  he  supposed,  passed  over  the  rail- 
road in  the  evening,  after  which  he  wonld  turn  hie  horees  through 
the  gate,  and  allow  tliem  to  go  to  the  pasture  in  the  manner  above 
described.  His  habit  was  to  take  them  out  of  the  pasture,  over 
the  right  of  way  and'through  the  gate,  in  the  morning,  in  advance 
■of  the  passage  of  the  first  train.  On  the  evening  of  August  23, 
18S5,  the  appellant  tnrned  two  horses  owned  by  hini  through  tlie 
rate,  onto  tlie  company's  right  of  way.  He  watched  them  until 
Uiey  passed  over  and  nom  the  right  of  way  into  the  nastui-e  field. 
At  some  time  during  the  nfglit  the  animals  wandered  back  upon 
tlie  right  of  way,  and  in  the  morning  one  was  found  dead,  and  the 
■other  severely  injui-ed,  from  contact  with  a  passing  train  on  the 
appellant's  track.  Upon  the  foregoing  undisputed  facts,  was  the 
company  liable  to  the  appellant  for  not  having  fenced  its  track  in 
compliance  with  the  act  approved  April  13,  lS85t 

That  it  was  the  duty  of  the  company  to  maintain  a  sufficient 
fence  Between  its  right  of  way  and  the  appellee's  pasture  field  is 
plain,  and  that  it  was  in  default  in  not  maintaining  a  fence  as  re- 
quired  by  the  statute  may  be  conceded.  It  may  be  _^^ 
conceded,  too,  as  a  geneml  propoeition,  that  an  adjacent  vu  to  ruci. 
land-owner  cannot  be  deprived  of  the  proper  use  of  his 
land  by  the  default  of  a  railroad  company  in  neglecting  to  fence 
its  track.  The  land-owner  may  now,  after  having  given  30  days' 
notice  to  the  company  in  default,  erect  fences  at  the  company's 
expense  at  all  places  where  the  statute  requires  railroads  to  mam- 
tain  fences.  It  may  be,  too,  althongh  we  decide  nothing  upon 
that  subject  uow,  that  if  a  land-owner  uses  his  enclosed  lands  in 
the  ordinary  way,  and  his  animals  escape  onto  the  track  of  a  rail- 
way company,  which  is  not  fenced  as  the  statute  requires,  the 
knowledge  of  the  land-owner  that  the  track  was  not  fenced,  will 
not. defeat  his  statutory  right  of  recovery.  It  has  been  held  that 
contributory  negligence  is  no  defence  in  snch  a  case.  Railroad 
Co.  V.  Cal.ill,  63  Ind.  340 ;  Weity  v.  Railroad  Co.,  105  Ind.  65. 
To  habitaally  tnra  animals  loose  upon  a  railroad  track,  or  right 


^d  by  Google 


048  OI.ABK  V.  BOSTON  AUTD  MAINS  B.  00. 

of  way,  is,  however,  something  more  than  contributory  negligence. 
Such  conduct  eviiiceB  a  disposition  to  abaDdon  the 
omm-Aua-  aiiiiiials  to  tlie  hazard  of  certain  and  inevitable  destrne- 
tion,  sooner  or  later.  "  A  man  who  willingly  abandone 
his  property  to  destruction,  or  purposely  exposes  it  to  a  known 
danger,  bae  no  right,  either  in  law  or  morals,  to  invoke  t)ie  aseist- 
ance  of  courts  of  justice  to  secure  pny  for  it."  Welty  v.  Railroad 
Co.,  105  Ind.  65 ;  a.  c,  24  Am.  &  Eng.  R.  R.  Cas.  371.  .  The  plain- 
tiS  innst  have  known,  when  he  allowed  liis  hoi-scs  to  go  over  the 
appellant's  right  of  way  to  the  pastare  field,  that  the  instinct  of  the 
animals  would  naturally  lead  them  to  ooine  back  from  the  pastnre 
onto  the  right  of  way,  and  cp  to  the  gate  tlirougii  which  they  cus- 
tomarily gained  access  to  and  egress  from  the  field.  In  respect 
to  the  owner  who  thus  treats  his  animals,  if  the  railroad  track  is 
Becurely  fenced  at  the  point  where  he  voluntarily  turns  tliem  loose 
upon  the  right  of  way,  he  may  not  complain.  Having  chosen  the 
company's  right  of  way  as  a  convenient  way  for  his  horses  to  go 
to  and  from  the  field,  lie  is  in  no  position  to  claim  compensation 
for  injuries  to  which  he  voluntarily  exposed  them.  In  tiie  recent 
case  of  Railway  Co.  v.  Goodbar,  102  Ind.  596,  this  conrt  said  : 
"It  would  be  unjnst  to  compel  a  railroad  company  to  pay  for 
animals  that  entered  npon  its  track  through  a  gate  maintained  hy 
the  owner  for  his  own  accommodation."  Bond  v.  Railroad  Co., 
100  Ind.  301 ;  b.  c,  23  Am.  &  Eng.  R.  R.  Cas.  200.  For  a  mnch 
greater  reason  would  it  be  anjust  to  compel  a  railroad  to  pay  for 
animals  which  the  owner  volnutarily  and  habitually  turned  inUy 
its  right  of  waythrongh  a  gate  maintained  for  his  accommodation. 
The  jadgment  is  reversed,  with  costs. 

See  note  to  OincUmati,  etc.,  R.  Go.  «.  Jooei,  tupm,  p.  491, 


Boston  aud  Maine  B.  Oo. 
(AAmnee  Com,  A«u  Eamp§Kire.    Jvly  IC,  1887.) 

A  hoTM  esoping  from  the  control  of  its  owner,  who  uaed  reuonable 
dili^Dce  Id  attempting  to  rectipture  it,  ran  upon  a  railroad  crossing  and  wu 
killed  bya  passiag  tram  on  the  defendaot  road,  runiiiDg  at  a  greater  rate  of 
speed  than  thnt  permitted  bj  aUtute  (Oen.  Laws  N.  H.,  c.  liA,  5  4)-  1°  »> 
action  by  the  owaer  to  recover  for  the  low,  Mdd: 

1.  That  he  was  entitled  to  recover, 

S.  That  negligence  on  the  part  of  the  company  may  be  Inferred  from  il» 
ronnlng  ^e  trtun  at  an  unlawiiil  rate  of  speed. 


^d  by  Google 


KILLING  STOCK — UNLAWFUL   RATE   OF  SPEED.  649 

3.  Th&t  the  statute  prohibitingf  the  ruDoing  of  trains  at  a  greater  rate  of 
speed  Chan  eii  miles  an  nour  across  a  highwaj  in  the  compact  part  of  a  town 
ia  ao  exercise  of  the  police  power  of  the  State,  and  ia  applicable  to  railroads 
vhich  extend  into  on  adjoining  Scat«,  as  well  as  to  those  which  are  nhoUj 
within  the  State. 

Kebervbd  case  from  Itockingliam  connty  ;  Binohah,  Judge, 

Case  for  negligently  killing  the  plaintiff's  horse  on  a  liiehway 
raih'oad  crossing.  The  plaintiff's  evidence  tended  to  show  tliat  he 
exchanged  horeee  at  Kewniarket  village  August  28, 1885;  reached 
borne  at  Newrnaikct  Jniiction  about  9  o'clock  in  the  evening; 
drove  into  his  bam  and  tiriliarnessed  his  horse;  that  the  hoi'se 
escaped  from  him  wliile  he  was  reaching  for  the  halter,  and  ran 
out  of  the  barn  into  the  liighway,  toward  his  former  home;  that 
his  servant  at  once  took  another  horse,  and  Started  in  pursuit ; 
that  the  defendant's  express  train  passed,  ^ing  east,  and' crossed 
the  highway  leading  fi'oni  the  junction  on  the  crossing  at  the  west- 
erly side  of  Newmarket  village,  within  its  compact  part,  at  a  rate 
of  35  or  40  miles  an  honr;  that  the  hoi-se  passed  onto  the  crossing 
just  before  the  engine  did,  whicli  then  hit  and  killed  the  horse; 
snd  that  the  night  was  so  dark  one  could  not  see  a  horse  over  60 
or  80  feet  away.  The  defendant's  evidence  tended  to  show  that 
tlieir  servants  had  no  knowledge  that  the  horse  was  on  the  crossing 
or  killed  till  a  day  or  two  afterward.  Sabject  to  the  defendant's 
exception,  the  jury  were  instructed  that  if  they  should  find  the 
horse  was  in  the  liighway,  in  the  way  and  manner  the  plaintiff's 
evidence  tended  to  prove,  through  no  want  of  ordinary  care  and 
prndence  on  his  part,  and  that  he  used  reasonable  diligence  in  his 
efforts  to  retake  it  after  its  escape,  the  horse,  as  to  the  defendants, 
was  lawfully  in  the  highway  ;  and  if  the  defendants,  by  the  care- 
less  and  negligent  running  of  their  trains,  killed  it,  the  plaintiff 
«ot)ld  recover,  if  guilty  of  no  contributory  negligence.  Snhject 
to  the  defendant's  exception,  also,  the  court  declined  to  instruct 
the  jury  that  the  statute  prohibiting  the  running  of  trains  at  a 
greater  rate  of  speed  than  six  miles  an  hour,  in  the  compact  part 
of  the  town,'doeB  not  apply  to  interstate  railroads  that  run  tiitAi 
trains  through  this  State.     Verdict  for  the  plaintiff. 

tA.  A.  ii^erly  and  J.  8.  H.  Frink  for  defendants. 

J.  W.  Towle  and  Dodge  t6  (Javerly  for  plaintiff. 

Suits,  J. — Tiie  instructions  were  sufficiently  favorable  to  the 
defendants.  Under  them  the  jury  found  that,  without  any  fault 
on  the  part  of  the  plaintiff,  his  horse  was  killed  by  the  defendunt'a 
careless  and  negligent  management  of  their  train.  State  v.  Rail- 
road, 52N..H.  528,555  ;  Gale  «.  Lisbon,  Id.  174;  Norris  «.  Litch- 
field, 35  N.  H.  271 ;  Corey  v.  Batli,  Id.  530.  The  fact  that  the  speed 
of  the  train  was  greater  than  that  allowed  b^  the  statute  (Gen. 
Laws,  c.  162,  §  4)  is  evidence  fro^  which  the  jury  might  find  that 


^d  by  Google 


550      EVEEErr  v.   central  iowa  b.  co. 

defendants  were  guiltj-of  negligence.    Katter  v.  Railroad,  60  N- 
H.  483. 

Tlte  Btatote  prohibiting  the  running  of  trains  at  a  greater  rate 
of  Bpeed  than  six  miles  an  hour  acrose  a  1iig)iw:ij,  in  or  near  the 
compact  part  of  a  town  (Gen.  Laws,  c.  162,  §  4),  is  an  exercise  of 
the  police  power  of  the  State  for  the  Fafet--  and  welfare  of  its 
inhabitants,  applicable  to  railroads  which  will  extend  into  an 
adjoining  State  ae  well  as  to  tliose  which  are  wholly  within  the  ■ 
State.     Smitli  v.  Railroad,  63  N.  H.  25. 

Exceptions  overruled. 

£dioham,  J.,  did  not  sit.     The  others  concnrred. 

Bee  nota  to  GinciDDati,  etc.,  S.  Oo.  n.  Jodw,  ttytra,  p.  491. 


Cehtbal  Iowa  R.  Co. 

{Advance  Ocue,  Toua.     BttsttrAm  14,  1887.) 

The  anignee  of  a  right  of  action  against  a  railroad  company  for  killing' 
stock,  may,  b;  complying  with  the  statutory  provisions  ss  to  serriag  notice, 
recover  double  damages  upoa  the  same  shoTring  as  the  original  owner  of  the 


stock. 

Appeal  from  district  court,  Maliaska  county ;  J.  K.  Johhbok, 
Jndue. 

This  is  an  action  by  J,  F,  Everett  to  recover  double  the  valne 
of  certain  iivc-stock,  whicli  were  killed  and  injured  bj  a  train  run- 
ning on  the  defendiint's  railroad.  There  was  a  verdict  and  judg- 
ment for  the  pliiintiff.     Defendant  appeals.        • 

Anthony  C.  Daly  for  appellant. 

J.  F.  tfe  W.  B.  Lacey  for  appellee. 

RoTHEocK,  J. — 1.  The  claim  made  by  the  plaintiff  is  that  two 
horses  were  killed,  and  a  calf  was  injured.  One  of  the  liorsee  waa 
owned  by  one  Hunt,  and  the  other  by  one  Shock.  Tlie  calf  waa 
owned  by  the  phiiiitiff.  All  of  the  damage  accmed  at  tlie  same 
Turn.  time  and  place.     A  short  time  after  the  injury  Hnnt 

and  Shock  aeaigned  their  claiine  for  damages  to  the  plaintiff.  Af- 
terward tlie  piaintiS  served  the  notice  and  affidavit  upon  the  de- 
fendant which  are  required  by  the  statute  to  authorize  a  recovery 
of  double  the  actual  damages  snet;iiiied  by  the  owner  of  the  stock 
killed  or  injured.     The  defendant  objected  to  the  introduction  of 


^d  by  Google 


KILLING  STOCK— DOUBLE  DAMAGES.  661 

tbe  notice  and  affidavit  in  evidence.  One  ground  of  the  objectioo 
was  timt  a  claim  of  this  kind,  if  assignable  at  all,  is  onl^  assignable 
BO  far  as  actual  damages  are  involved,  and  that  no  aseigninent  for 
the  penalty  or  double  damages  is  valid.  The  same  question  was 
raised  in  a  request  for  instructions  to  the  jury.  The  court  refused 
to  give  the  iiiBti'uetions  as  requested,  and  iield  that  the  claim  was 
assignable.  This  is  the  lirst  ground  upon  which  a  reversal  of  tlie 
judgment  is  asked. 

The  general  rule  in  this  State,  under  our  statutes,  is  that  aay 
cause  of  action  may  be  assigned.  An  action  for  a  personal 
injury  may  be  assigned.  Vimont  v.  Railway  Co.,  69  Iowa, 
296;  s.  c,  28  Am.  &  Eng.  R.  R  Gas.  210.  There  can  be. do 
doubt  that  the  claim  for  damages  in  this  case  was  as- 
signable. The  objection  of  tlie  defendant  to  the  as-  ;?^'!!iS^" 
signment  cannot  be  sustained.  But  it  is  insisted  that  J^JS^*"*' 
the  assignee  could  not  acquire  more  by  the  aasigiimeut 
than  the  actual  claim  assigned,  which,  at  the  time  of  the  assign- 
ment,  was  the  right  to  recover  actual  damages,  and  no  more.  The 
ground  of  the  argument  is  that  an  action  for  astatute  penalty  can- 
not  be  assigned.  We  think  a  complete  answer  to  this  is  that  no 
penalty  was  assigned.  If  the  assignee  had  commenced  liis  action 
in  this  case  without  serving  tlie  notice  and  affidavit,  there  Voald 
have  been  no  right  to  recover  double  damages.  The  right  accrued 
by  the  service  of  the  notice.  It  is  a  right  which  arises,  not  from 
the  fact  of  an  injury  resulting  in  damages  to  the  owner  of  the 
stock  killed  or  injured,  but  by  reason  of  the  failure  of  the  defend- 
ant to  pay  the  claim  within  30  days  after  service  of  the  notice  and 
affidavit.  It  is  a  right  that  accrues  during  the  process  of  collec- 
tion, and  to  insure  prompt  payment  without  putting  the  claimant 
to  the  expense  of  litigation.  Counsel  for  defendant  contend  that 
by  the  very  language  of  ihe  statute  them  can  be  no  recovery  of  the 
donble  damages  by  any  one  but  the  owner  of  the  stock.  The  lan- 
guage is  that  "such  owner  shall  be  entitled  to  recover  double  the 
value  of  the  stock  killed,  or  damages  thereto."  Code,  §  1289,  But 
the  word  "owner"  is  not  usea  in  the  statute  in  a  restrictive  sense. 
In  the  absence  of  a  statue  forbidding  it,  all  demands  are  assignable, 
and  it  wonld  be  useless  verbiage  if  tlie  statute  should,  when  it  de- 
fines a  ri"lit  of  action,  always  confer  the  right  of  action  on  the 
party  in  interest  or  his  assignee.  We  think  it  is  quite  clear  tliat 
the  assignment  carried  with  it  ail  the  rights  of  the  assignor,  as 
well  those  which  had  already  accrued  as  those  which  might  arise 
in  the  collection  of  the  claim, 

2.  It  is  claimed  that  the  judgment  should  be  reversed  for  mis. 
conduct  of  one  of  the  plaintiff's  attorneys  in  the  closing  hbcohdott  w 
argument  to  the  jury.     It  appears,  by  an  affidavit  by  *™'"'"' 
one  of  defendant's  attorneys  that  the  miecondnct   complained  of 
consisted   of  certain  alleged  statements,  made  in  the  closing  argu- 


ed by  GoOglc 


Soy  BVERETT  V.   CENTKAt   IOWA  B.    00. 

ment,  which  where  Dnwarranted  by  the  evidence  and  facte  in  the 
case.  The  attorney  wlio  made  the  arjj^ment  made  a  connter-affi- 
davit,  in  which  it  is  claimed  that  all  tliat  was  said  hy  him  waa  in 
reply  to  an  argument  made  by  one  of  defendant's  attonieya.  This 
is  denied  by  an  affidavit  of  one  of  defendant's  attonieya.  The 
matter  was  submitted  to  the  court  on  tJiese  affiditvits.  We  cannot 
be  expected  to  reverse  the  ruling  of  the  district  court  on  this  ques- 
tion. The  judge  no  doubt  determined  the  question  npon  his  own 
knowledge  of  what  tranepired  at  the  trial,  as  well  as  upon  a  con- 
aidoration  of  the  conflicting  affidavits.  Wlien  we  are  asKed  to  re- 
verse a  judgment  on  the  ground  of  misconduct  of  an  attorney,  the 
record  should  show  the  miECondiict  without  question.  We  cannot 
say,  in  this  case,  that  the  court  did  not  correcilj-  decide  that  there 
was  no  miseoTidnct,  Moreover,  see  Ituyhurn  v.  Railroad  Co.  (de- 
cided at  the  present  term).     Affirmed. 

liEED,  J. — (dissenting.)  My  disagreement  is  as  to  the  first  point 
ruled  in  the  foregoing  opinion.  I  do  not  deny  that  a  claim  for 
damages  for  an  injury  snch  as  is  complained  of  is  assignable. 
^Neither  do  I  make  any  question  as  to  tlie  power  of  the  owner 
thereof  to  assign  a  claim  for  double  damages  after  the  right  there- 
to has  accrued.  My  dissent  is  as  to  what  passed  to  plaintiff  under 
the  assignment.  When  the  assignment  was  executed  tJie  only 
right  in  existence  was  the  right  to  he  compensated  for  the  injury 
sustained.  Defendant  was  tlien  liable  only  for  tlie  value  of  the 
property  destroyed.  It  is  true,  events  migiit  occur  in  the  future 
upon  wnich  it  wonid  become  liable  for  double  that  amount;  but 
no  such  right  or  liability  existed  at  that  time,  and,  unless  it  should 
occtir  in  the  future  that  defendant  shonid  neglect  for  SO  days  after 
notice  o£  the  injury  to  pay  the  damages,  never  wonld  exist.  The 
assignment  passed  to  the  plaintiS  the  demands  which  the  owners 
of  the  property  then  held  ;  which,  as  I  have  said,  were  demands 
simply  for  the  value  of  the  property  destroyed.  It  seems  to  me 
impossible  that  the  assignment  of  an  existing  definite  claim  shonid 
operate  to  vest  the  assignee  with  rigjits  whieli  have  no  existence  at 
the  time  of  the  assignment,  and  which  are  not  necessarily  or  cer- 
tainly incident  to  the  thing  assigned.  In  my  judgment,  therefore, 
the  judgment  onght  to  be  modiiied  by  reducing  the  amount  of  the 
recovery  to  the  actaal  damages. 

Bee  not«  to  Cinolonati,  etc,  R  Co.  e.  Jones,  n^ra,  p.  491. 


^d  by  Google 


STATUTE  AGAINST  MUTILATING   DEAD  ANIMAL. 


{Adtanee  Gate,  Arkanta».     Mt;  28,  1887.) 

The  act  of  Arkansaa  of  February  8,  1870  (MaoBf.  Dig.  §  6545),  providing 
tbat :  "  If  BD J  Bection-boss  or  master,  liaod,  or  other  peraon  employed  b;  aoj 
railroad  compaay  owDiDg  sad  operatinf;  any  railroad  ia  tbia  State,  or  aDj 
other  persuQ  connected  with  uuy  railroad  in  this  State,  ehall  be  caught  mutilat- 
ing, dis&guring,  burning,  hauling  oB,  or  burying  any  dead  carcass  that  bhall 
be  killed  on  any  railroad  in  this  State,  witliuul  first  notifying  at  least  twociti- 
Eensof  the  neighborhood,  whose  duty  it  shall  be  to  take  and  preserve  all 
marks,  flesh  or  ear  or  otherwise,  or  value  oF  such  animal,  brute,  swine,  or 
other  stock,  shall  be  deemed  guilty  of  a  misdemeanor,  and  be  flued,  etc.,"  is 
unconatitutional;  the  power  of  the  legislature  to  enact  such  a  statute  being 
found  in  the  general  conirol  which  the  State  baa  reserved  over  all  agencies 
for  the  public  safety  and  protection,  and  to  guard  properly  the  rights  of 
-Other  persons.  It  is  not  class  legislation,  nor  repugnant  to  sections  8  and 
21,  art.  2,  Ark.  Const.  1874,  guarantying  the  equality  of  all  pereoDS  before 

Appeal  from  cireait  conrt,  Sharp  county. 
JVewman  Erb  and  Caruth  <&  Ero  for  appellant. 
Dan.  W.  Jones,  Attj,-gen.,  for  appellee. 

CooKBiLL,  C.  J. — The  appellant  was  convicted,  and  a  fine  of 
$25  T  IS  aaseseed  against  him,  for  a  violation  of  the  following  pro- 
vision of  tlie  Btatnte : 

"  If  any  section-boes  or  master,  hand,  or  other  person  employed 
l>y  any  railroad  company  owning  and  operating  any  rail-  Fio™. 

road  ill  this  State,  or  any  pei-Bon  connected  with  any  railroad  in 
this  State,  shall  be  caught  mutilating,  disfiguring,  burning,  haul- 
ing off,  or  burying  any  dead  carcass  that  shall  be  killed  on  any 
railroad  in  this  State,  without  first  notifying  at  least  two  citi- 
zens of  the  neighborhood,  whose  duty  it  afiall  be  to  take  and  pre- 
serve all  marks,  flesh,  or  ear  or  otherwiBe,  or  value  of  such  animal, 
brute,  swine,  or  other  stock,  shall  be  deemed  guilty  of  a  inisde- 
tneanor,  and  be  fined  in  any  sum  not  less  tlian  $25,  nor  more  than 
$500,  for  such  offense."     Mansf.  Dig.  §  5545. 

The  appellant  was  a  section-boss  in  the  employ  of  the  Kansas 
City,  Springfield  &  Memphis  R.  Co.,  and  was  charged  with  hanl- 
ing  off  and  burning  stock  that  had  been  killed  by  the  company's 
trains,  without  first  notifying  citizens  of  the  neighborhood.  His 
motion  for  a  new  trial  does  not  question  tbe  adequacy  of  the  testi- 
mony to  sustain  the  verdict  against  him,  and  he  has  not  challenged 


^dbyGoOglc 


554  BANNON  «.   STATE.      ' 

here  the  correctness  of  tlie  conrt'e  charge  to  the  jnry.  The  qaes- 
tion  pressed  for  cotisidei'atioii  is  the  constitationality  of  the  pro- 
vision of  the  stalnte  under  which  the  conviction  was  had. 

It  is  argued  that  the  section  is  special  legislation,  discriminating- 
AoT  HELD  (»■-  against  the  employees  of  railroads,  and  tliat  it  is  there- 
■nnmoBu.  f^.g  repugnant  to  tlie  guaranty  of  the  constitution  that 
the  equality  of  all  peiBons  before  the  law  shall  remain  inviolate, 
and  is  not  "the  law  of  tiie  land,"  within  tlie  meaning  of  the  bill 
of  rights.  Const.  1874,  art  2,  §§  3,  21.  The  provision  is  taken 
from  the  act  of  February  3,  1875,  requiring  railroad  companies  to 
pay  for  damages  to  persons  and  property  caused  by  the  mnning  of 
its  trains.  Ojic  of  tlie  main  objects  of  the  act  le  to  aeenre  tlie 
citizens  living  in  the  neighborhood  of  the  lines  of  railways  in  the 
recovery  of  diimages  agiunst  the  companies  for  negligently  killing 
their  stock.  The  obligation  to  fence  the  track  was  not  imposed 
upon  the  companies,  as  it  has  generally  been  elsewho'e,  but  tltey 
are  required  to  funiieh  the  stock-owner  with  facilities  for  ascer- 
taining that  his  stock  has  been  injured,  and  the  opportunity  of 
identifying  it  afterward.  This  is  done  by  making  it  incumbent 
on  the  company  to  post  a  notice  at  the  station-house  nearest  to  tlie 
place  of  theinjnry,  giving  a  description  of  the  animal  injured,  with 
a  statement  of  tlie  time  and  place  of  the  injury  ;  and,  fiirtlier,  by  a 
compliance  with  the  requirements  of  the  provision  in  question. 
The  power  of  the  legislature  to  impose  npon  railroad  companies 
the  obligation  of  affording  the  stock-owner  every  reasonable 
facility  for  obtaining  the  evidence  of  the  injnry  he  has  sustained 
by  the  running  of  tlieir  trains,  and  of  enforcing  the  pcrforniance 
of  the  dnty  by  prescribing  a  punishment  for  Its  neglect,  cannot  be 
doubted.  The  right  is  foniid  in  the  general  control  wiiich  the 
State  has  reserved  over  all  iigencies  for  the  public  safety  and  pro- 
tection, and  to  guard  propeny  the  rigiits  of  other  pei-sons.  The 
maxim,  sio  utere  tuo  nt  alienum  non  Iwdas,  lies  at  the  foundation 
of  the  power,     Cooley,  Const,  Lim,  710,  note ;  Id.  *575  et  aeq. 

A  punishment  in  damages  in  double  the  value  of  the  iiuinial 
injured,  to  be  recovered  of  tiie  company  infiicting  the  injury  by 
tlie  owner,  if  he  is  entitled  to  recover  at  all,  is  imposed  npon  the 
company  for  a  neglect  to  post  the  notice  reqnii'cd  by  the  act. 
Mansf.  JDip.  §  5538.  All  of  the  objections,  and  others  as  well,  that 
are  now  urged  against  the  provision  upon  whieh  the  prosecution  is 
founded,  have  been  made  against  that  last  'cited,  but  they  have 
been  adjudged  to  be  insufficient  to  affect  the  validity  of  the  act, 
and  it  has  successfully  withstood  the  assaults  of  the  companies, 
little  Rock  &  Ft.  S.  R.  Co.  v.  Payne,  33  Ark.  816;  Memphis 
&  L.  R.  Co.  V.  Horsfall,  36  Ark.  651 ;  Cooley,  Const.  Lim.  *579,; 
and  cases  cited  in  note  1 ;  Humes  v.  Missouri  Pac.  R.,  82-Mo.  221 
Houston  &  Tex.  Cent,  R.  v.  Harry,  63  Tex.  256. 

The  provision  in  question  is  of  a  piece  with  tlie  double-damage 


^d  by  Google 


STOCK   KILLING — ARBITRATION.  '65& 

feature  of  tbe  act,  and  was  designed  to  etimalnte  the  companies' 
Bervaiite  to  perpetuate  tlie  evidence  of  the  injuries  done  tliroagh 
tbe  acts  of  themselves  or  tlicir  coein ploj^ecs,  and  the  poniBhinent 
that  is  prescribed  against  them  is  intended  sitnplv  to  compel  an 
enforcement  of  the  statutory  daty  in  aid  of  the  stock-owner. 
Witliont  a  penalty  the  provision  would  be  worthSess.  Tlie  punish- 
ment for  removing  the  culpatory  evidence  against  the  company, 
witliout  complying  with  the  requirements  of  tiie  statute,  is  pro- 
nonnced  against  all  upon  whom  the  duty  of  performing  the  obli- 
gation is  cast;  and  tbe  section  is  not  partial,  within  the  inhibition 
of  the  coTistitiition.  Cases  mpra;  Cooiey,  Const,  Liin.  *390; 
McAnnich  v.  Railroad,  20  Iowa,  338 ;  Iowa  R.  v.  Soper,  39  Iowa, 
112;  Diivis  V.  State,  3  Lea,  376. 

The  same  power  that  autlioiizes  the  punishment  of  railroad  com- 
panies, witliont  iBxtending  its  operation  to  other  companies  or  per- 
BOiis,  for  a  failure  to  post  the  notice  of  wounding,  justifies  the 
pnoishinent  of  railroad  employees  alone  for  a  violation  of  a  like 
Btatatory  obligation  on  their  part.     Let  the  judgment  be  affirmed. 

Bee  note  to  Cincinaati,  etc,  R.  Co.  «.  Jonea,  wpra,  p.  i91. 


St.  Lons,  Ibor  Moijhtain  abs  Sodthsbn  B.  Co. 


{Adwmet  Oa»a,  Arhnuat.     Sovemier  S,  1887.) 

An  act  of  the  legislature  providing  that  where  stock  is  killed  or  injured 
by  railrooda  the  damagee  shall  be  aueased  b;  arbitration,  and  if  either  partr 
lefuaea  to  abide  b;  the  award,  and  takes  tbe  case  before  the  courts,  and 
■ball  not  recover  a  more  favomble  judgment  than  the  award,  such  party 
■hall  be  asseeaed  a  reasonable  attorney's  fee  for  the  opposing  litigant,  is  un- 
constitutional. 

Appeal  from  eirenit  court,  Saline  connty;  J.  B.  Wood,  Jadge. 
Dodge  db  Johnson  for  appellant. 
W.  S.  McCain  and  Geo.  M.  SoTidera  for  appellee. 

Batflk,  J. — Appellee  sued  appellant  for  the  valne  of  two  oxen 
killed  by  its  train,  and  recovered  judgment  for  his  damages  and 
$20  for  an  attorney's  fee.     The  only  error  complained  photbiokb  of 
of  here  is  the  allowance  of  tbe  attorney's  fee,  which  *"■ 
was  allowed  by'antliority  of  an  act  entitled  "  An  act  to  provide  for 


^d  by  Google 


656     ST.  LOUIS,  IKON  MOUNTAIN,  ETC.,  E.  00.  V.  WILLIAMS. 

tbe  epeedv  settlement  of  claims  fur  stock  killed  or  injured  bj- 
railroads,    wliicli  reads  as  follows : 

"Section  1.  Tliat  whenever  any  stock,  sach  as  lioreee,  hogs, 
fiattle,  sheep,  etc.,  are  killed  or  injured  bj  railroad  trains  running 
in  this  Scale,  either  the  owner  of  sucii  stock,  or  the  pei'son  having 
a  special  ownership  therein,  or  the  raiiraad  company,  or  person  op- 
ei'ating  sucli  railroad,  shall,  by  notice  served  npon  the  onposiie 
party,  deiD^ind  an  appraisement.  Such  notice,  if  given  to  the  r-iil- 
road  company,  shall  be  sulBcient  if  served  upon  the  station  agent 
nearest  the  place  where  the  injury  occurred,  or  upon  any  station 
agent  in  the  county.  In  the  notice  tbe  party  shall  name  a  person, 
a  citizen  of  the  county  in  which  the  injiny  occurred,  as  an  ap- 
praiser, Tlie  other  shall,  within  ten  days,  select  aiiotiier  citizen  of 
the  county,  and  shall  notify  the  opposite  party  of  tbe  person  so 
selected.  If  the  party  so  notified  shall  neglect  for  ten  days  to  ap- 
point an  apptiiiser,  then  the  person  named  in  sucli  first  notice  shall 
select  some  citizen  of  tJie  county  to  net  with  bini  as  appraiser,  and, 
in  case  of  disagreement,  tiiey  shall  select  an  umpire.  They  sliiill 
be  sworn  to  truly,  and  wiihout  favor,  assess  the  damages,  and  any 
two  of  them  agreeing  shall  i-educe  their  finding  to  writing,  sign 
it  in  duplicate,  and  deliver  one  copy  to  the  owner  of  such  stock, 
«nd  the  other  to  the  depot  agent  of  the  railroad  company. 

"  Sec.  2.  If  the  person  or  company  operating  sncli  railroad 
shall,  within  thirty  days  after  the  delivery  of  such  appraisement 
to  tlic'r  agent,  pay  the  amount  assessed  as  damages,  sucli  payment 
shall  be  iti  full  satisfaction  of  all  demands  for  tlie  killing  and  in- 
jury of  such  stock,  and  tliey  shall  be  released  from  further  liabil- 
ity therefor  ;  but  in  case  they  neglect  or  refuse  to  make  such  pay- 
ment within  thirty  days,  and  the  pei-son  owning  siicb  stock  shall 
sue  for  damages  done  to  such  stock,  and  recover,  the  court  trying 
tbe  cause  shall  assess,  in  addition  to  tbe  amofmt  assessed  as  dam- 
ages for  the  killing  or  injuring  of  such  stock,  a  reasonable  attor- 
ney's fee  for  the  plaintifi;  and  in  any  snch  court  to  which  tlie 
Appeal  may  be  taken,  the  court  shall  allow  a  reasonable  attorney's 
fee,  to  be  taxed  and  collected  as  other  costs  in  the  case  in  such 
court ;  but,  if  such  company  or  person  tender  such  owner  of  such 
stock  the  full  amount  of  such  appraisement  within  tiiirty  days, 
and  the  same  be  refused,  and  he  shall  institute  suit  for  such  dam- 
ages to  such  stock,  unless  such  person  recover  in  such  suit  a  greater 
amount  than  that  tendered,  the  court  trying  such  case  shall  assess 
a  reasonable  attorney's  fee  for  the  defendant;  and,  in  case  of  ap- 
peal, die  court  to  which  the  appeal  is  taken  shall  assess  a  rcaEona< 
ole  attorney's  fee  for  the  defendant,  to  be  taxed  and  collected  as 
other  costs  in  the  case  in  such  court. 

"  Sec.  3.  That  all  laws  and  parts  of  laws  in  conflict  with  this  act 
"bo,  and  the  same  are  hereby,  repealed,  and  that  this  act  take  effect 
and  be  in  force  from  and  after  its  passage." 


^dwGoogle 


STOCK   KILLING — ARBITRATION,  667 

Ib  this  act  oonBtitutional !  Its  validity  depends  entirely  upon 
the  power  of  the  legislature  to  authorize  tlie  recovery  of  an  at- 
torney's fee  in  the  inaimer  prescribed  by  the  act.  It  may  be  con- 
ceded, for  the  purposes  of  tliis  opinion,  that  tlie  legis-  (-„,.. ^..„t|. 
lature  can  authorize  the  recovery  of  an  attorney's  fee  *""  or  m 
in  civil  actions  ob  costs,  provided  it  does  so  without  de- 
nying to  litigants  the  equal  protection  of  the  laws  guarantied  to 
them  by  the  constitoCion.  As  a  general  rult:,  the  le^slatnre  cao 
authorize  its  recovery  as  a  penalty  for  the  doing  or  tue  failure  ti> 
do  any  act  which  it  has  power  to  prohibit  or  require  to  be  done. 
But  the  first  question  in  order  here  is:  Is  it  allowed  as  costs  or  as 
a  penalty  ( 

An  attorney's  fee  is  only  allowed  by  the  act  in  two  elasses  of  cases : 
First,  where  the  i-ailroad  company  fails  to  lender  the  amount  of  the 
damages  assessed  within  the  time  prescribed  by  the  act,  and  the 
owner  of  tlie  stock  killed  or  injnied  brings  suit  and  recovers  as 
mncli  or  more  than  the  amount  of  the  assessment ;  and,  secondly, 
where  the  railroad  company  tenders  tiie  amount  of  the  assessment, 
and  the  owner  of  the  stock  refuses  to  accept  it,  sues,  and  recovers 
an  amount  no  greater  than  tlie  amount  tendered.  In  neither  class 
of  cases  is  it  allowed  as  an  indemnity  to  the  prevailing  party  for 
the  costs  and  expenses  necessarily  incurred  in  obtaining  redress  in 
the  proper  court,  or  in  defending  an  unjust  or  fraudulent  action, — 
the  principle  npou  which  costs  are  taxed  ;  but,  in  the  first  class  of 
cases,  it  is  allowed,  in  the  court  in  which  the  action  is  brought,  to 
the  owner  of  the  stock,  because  the  railroad  company  refused  to 
tender  the  amount  of  damages  assessed  within  the  time  prescribed 
by  the  act,  and  the  owner  of  the  stock  recovered  as  much  as  the 
assessmeut ;  and,  in  the  other  class,  it  is  allowed  to  the  railroad 
company,  because  it  made  the  tender,  and  the  owner  of  tlie  stock 
refused  to  accept  it,  brought  suit,  and  failed  to  recover  more  than 
the  amount  tendered.  In  the  event  the  railroad  makes  the  tender, 
and  the  stock-owner  refuses  to  accept  it,  sues,  and  fails  to  recover 
a  greater  amount  than  the  amount  tendered,  and  an  appeal  is 
taken,  the  act  expressly  makes  it  the  duty  of  the  court  to  which 
the  appeal  is  taken  to  assess  a  reasonable  attorney's  fee  for  the  rail- 
road, without  regard  to  the  result  of  the  appeal.  In  the  other 
class  of  cases,  where  the  owner  of  the  stock  is  nllowed  to  recover 
an  attorney's  fee,  and  an  appeal  is  taken,  it  also  makes  it  the  duty 
of  the  court  to  which  the  appeal  is  taken  to  assess  an  attorney's 
fee,  but  does  not  say  for  whom  it  shall  be  assessed  ;  but  as  it  says 
that  the  fee  assessed  by  the  appellate  court  iu  the  other  class  of 
cases  shall  be  for  the  railroad  company,  it  is  unquestionably  in- 
tended for  the  owner  of  the  stock,  and  that  it  shall  be  assessed  for 
him  regardless  of  the  result  of  the  appeal,  as  it  is  manifest  the 
same  rule  is  intended  to  be  adopted  iu  both  classes  of  cases.  The 
fee  is  anqaestionahly  allowed  as  a  penalty. 


i,z.dbvGoOgle 


558      ST.  LOUIS,  IltON  MOUNTAIN,  ETC.,  E.  CO.  «.  WILLIAMS. 

The  act  in  qiieetioQ  virtnallj  conBtitutee  tlie  appraisera  selected 
under  it  a  board  of  arbitration  to  aEsese  and  determine  t)ie  amount 
of  damages  tlie  railtoad  company  ehall  paj,  and  gives  to  eacli  party 
the  privilege  to  liave  JitE  riglits  and  liabilities  determined  by  the 
courts.  Eitlier  party  is  permitted  to  exercise  this  privil^;e;  but 
if  lie  does  so  he  ia  liable  to  a  penalty.  For,  in  the  event  the  judg- 
ment of  the  court  is  no  more  favorable  to  Iiim  than  the  award  of 
the  board,  he  ie  taxed  with  an  attorney's  fee  as  a  penalty  for  refus- 
ing to  abide  by  the  asaessment  or  award,  and  bringing,  or  making 
it  necessary  for  the  other  parties  to  bring,  suit  to  enforce  bis 
rights;  and  he  is  taxed  witn  an  additional  fee  in  every  court  to 
which  the  action  is  taken,  regardless  of  the  result  of  the  appeal. 
What  18  the  object  of  imposing  these  penalties?     All  statutory 

Senalties  are  imposed  for  the  purpose  of  enforcing  the  object  or 
esign  of  the  statute  or  acts  imposing  them.  Tlie  imposition  of  a 
penalty  for  doing  an  act  is  equivalent  to  prohibiting  it,  and  for  fail- 
ing to  do  it,  to  i-eqiiiring  it  to  be  done.  It  is  obvious,  therefore, 
that  the  object  and  effect  of  the  act  in  question  is  to  require  boih 
parties  to  abide  by  the  award  of  tlie  boanl,  and  to  deter  tiiem  from 
going  into  the  courts  to  have  their  righte  and  liabilities  deter- 
mined, and  thereby  secure,  as  suggested  by  tbe  title  of  the  a<^ 
"  the  speedy  settlement  of  claims  for  stock  killed  or  injured  by 
railroaae." 

The  act  authorizes  the  selection  of  tlie  board  at  the  instance  of 
either  party,  without  the  consent  of  the  other.  Has  the  legisla- 
ture the  power  to  compel  or  require  either  party  to  submit  to  tbe 
award  of  a  board  selected  in  such  a  manner?  Courts  are  pro- 
vided by  tlie  constitution  for  the  purpose,  in  part,  of  enforcing 
tbe  rights  and  redressing  the  wrongs  of  persons.  The  constitu- 
tion of  this  State  dedares  that  in  all  actions  at  law  the  right  of  trial 
by  jury  shall  forever  remain  inviolate,  and  tiiat  "  every  person  is 
entitled  to  a  certain  remedy  in  the  laws  for  all  injuries  or  wrongs 
Le  may  receive  in  his  pei-son,  property,  or  character.  He  ought 
to  obtain  justice  freely  and  witliout  pDi'cbase,  completely  and 
without  denial,  promptly  and  without  delay,  conformablv  to  the 
laws."  Every  one  ia  entitled,  under  the  constitution,  to  nave  his 
rtgiits  enforced,  his  wi-onge  redressed,  and  his  liabilities  deter- 
mined in  tbe  courts,  wlienever  it  becomes  necessary  to  compel 
tlieir  enforcement,  redress,  or  adjustment,  and,  when  he  is  liable 
for  damages,  as  the  appellant  is  in  this  case,  to  have  the  duniages 
he  shall  pay  assessed  by  a  jnry.  The  legislature  has  no  power  to 
substitute  boards  of  arbitration  for  the  courts,  without  .the  con- 
sent of  parties,  and  make  their  awards  obligatory,  and  the  exer- 
cise of  tlie  right  to  seek  the  aid  of  the  courts  to  obtain  relief  a 
wrong,  or  impose  upon  any  one  a  penalty  for  exei-cising  such 
right.  To  make  the  action  of  such  a  board  obligatory,  or  imyrose 
sucb  a  penalty,  would  be  a  denial  of  the  right,  or  a  purchase  of 


^d  by  Google 


KILLING  STOCK— B£U£DIBS.  669 

juBtice,  and  a  violation  of  the  conetitntion.  We  think  the  act  is 
nnconetitntional ;  that  so  much  of  the  jndgment  of  tlie  court 
below  m  allows  an  attotnej's  fee  ehould  lie  reversed,  and  that,  iu 
other  rcBpects,  it  Ehould  be  affirmed  ;  and  it  is  ho  ordered. 

Sm  dote  to  Cincianftti,  etc.,  R,  Co.  e.  Jones,  m^ra,  p.  491. 


DSNTEB  AND  BlO   GbAITDB  B.  Oo, 


(Adeaitee  Gtua,  Colorado.    April  80,  1687.) 

^e  owner  of  Btock  killed  by  a  nilrotid  companj  maj  bare  his  common 
law  action  agaiDBt  ths  company  for  negligence,  although  there  is  a  scatuto 
making  railroad  oompaaieB  liable  for  killing  stock  without  regard  to  the 
queatioQ  of  negligence,  prorided  the  owner  compUea  with  the  method  of 
procedure  laid  down. 

But  where  the  owner  puraues  his  common-law  remedy,  be  has  the  burden 
of  proof,  and  does  not  make  out  aprima/ade  case  of  negligence  by  ahowing 
that  the  injury  was  occasioned  by  defeadant'e  locomotive  striking  the  plain- 
tiff's stock,  and  that  the  damages  were  a  sum  certain,  railroad  companies  not 
being  required  in  Colorado  to  fence  their  track,  and  stock  being  permitted 
to  run  at  large, 

Wliere  the  evidence  showed  that  the  pl^ntiff's  cow  was  killed  by  defend- 
ant's locomotive  ;  that  the  cow  could  have  been  seen  at  the  point  where  she 
was  lying  after  the  injury,  by  one  upon  the  engine  of  the  train,  for  about 
170  yards  ;  and  that  had  the  engineer  or  fireman  been  looking  out  of  the 
right  side  of  the  cab  as  it  rounded  the  curve,  the  cow  might  have  been  seen 
in  time  to  atop  tbe  train,  there  is  enough  proof  of  negligence  to  warrant  the 
Bubmission  of  the  question  to  tbe  jury. 

Appeal  from  conntj  conrt,  Fremont  eoniitj, 

The  present  action  was  bronght  hy  appellee  against  the  appel- 
lant companj  to  recover  damages  for  the  Killing  of  appellee's  cow 
by  one  of  the  eompanj's  trains.  In  the  county  court,  appellant 
(defendant)  filed  a  ploa  in  abatement,  setting  np,  among  other 
things,  that  plaintiff  had  not  complied  with  section  2571  of  the 
General  Laws  ,being  section  2805  of  the  General  Statutes.  The 
canse  was  tried  to  a  jury.  When  plaintiff  rested,  appellant  moved 
for  a  non-suit,  which  motion  was  denied.  Thereupon  appellant 
offered  evidence  on  its  own  behalf.  Verdict  and  jndgment  for 
apftellee. 

John  M.  Waldron  for  appellant. 

C.  E.  Waldo  for  appellee. 


^d  by  Google 


660       DENVEB  AND  EIO   OEANDB  B.    00.   V.    HENDEBaOK. 

Helm,  J. — No  effort  is  made  to  show  a  compliance,  or  an  at- 
tempted compliance,  bv  plaintiS,  with  the  statute  relating  to  dam- 
ages for  the  injnring  or  killing  of  stock  by  railroad  companies  in 
operating  their  trains.  Section  2804  et  sea.,  Gen.  St.  The  action, 
tlierefore,  cannot  be  maintained  under  the  statnte,  and  tliis  pre- 
sents tiie  first  question  we  are  to  consider,  viz.,  does  the  Gtatnte 
fiii-nish  exclneive  remedy  for  the  recovery  of  such  damages  At 
common  la^  the  owner  of  animals  which,  without  fault  on  his 
part,  are  killed  or  maimed  through  the  negligence  of  railroad  com- 
panies, their  agents  or  employees,  is  entitled  to  recover  a  fair  com- 
pensation for  the  iiijniy  thus  infiicted.  Section  2  of  our  statute, 
being  section  2804,  must  be  construed  in  connection  with  the  re- 
maining prnvisions  of  the  act.  Thus  construing  the  act,  we  can- 
not say  that,  in  expi-ess  terms  or  by  clear  implication,  it  repeals  or 
Bnspends  the  common-law  right  of  action  mentioned.  The  statnte 
is,  in  our  jndginent,  simply  cumulative.  Tlie  object  of  the  legi^ 
lature  was  not  to  interfere  with  the  owner's  existing  rights,  bnt, 
owing  to  the  difficulty  of  establishing  negiigence,  to  give  him 
additional  relief.  Upon  a  full  and  careful  compliance  by  tlie 
owner  of  the  animal  injured  witii  the  requirements  of  the  act,  he 
would  seem  to  be  entitled  thereunder  to  the  compensation  fixed  or 
proven,  as  the  case  may  be,  regardless  of  the  question  of  negligence 
on  the  part  of  the  defendant  company.  Failing  to  comply  with 
the'  statnte,  however,  such  owner  may  still  have  his  commou-law 
action. 

These  views  do  not  conflict  with  tlie  position  taken  in  Atchison, 
T.  &  8.  F.  K.  V.  Liijan,  6  Colo.  338.;  s.  c,  20  Am.  &  Eng.  R  R. 
Gas.  654.  An  examination  of  the  files  in  that  case  reveals  tlie 
fact  that  this  question  was  not  there  presented  or  argued,  and  the 
opinion  shows  that  it  was  not  passed  upon.  We  are  are  fairly 
warranted  in  the  conclusion  tiiar  that  case  was  instituted  and  tried 
under  the  statute,  and  that  in  the  trial  the  objection  of  a  partial 
failure  to  comply  with  the  preliminary  requirements  of  the  act 
was  not  urged,  or  in  any  way  taken  advantage  of.  Tlie  opinion 
declares  that  by  snch  conduct  defendant  waived  the  objection. 
There  is  no  language  announcing  that  an  action  at  common-law  ia 
such  cases  cannot  be  maintained. 

It  is  necessary,  however,  for  plaintiff,  when  he  does  not  invoke 
relief  under  the  statute,  but  attempts  to  make  his  case  at  common 
law,  to  offer  in  tlie  first  instance  evidence  showing,  or  fairly  tend- 
ing to  show,  negligence  on  the  part  of  the  defendant  whereby  the 
injury  resulted.  This  burden  is  upon  iiim.  Proof  of  the  injnir 
occasioned  by  tlie  defendant's  locomotive  striking  plaintiff's  ani- 
mal, and  the  damages  resulting  therefrom,  does  not  prima  fade 
establish  negligence.  Pierce,  K.  K.  438,  and  cases  cited  in  note 
1;  Wliart.  Neg.  §  899,  and  Ciises  cited;  Eedf.  Kys.  §  126,  and 
cases  cited.    It  is,  of  course,  to  be  remembered  that,  whije  in  this 


^d  by  Google 


KILLING  STOCK— MORTGAGED  PROPERTT.  661 

State  the  owners  of  animals  may  permit  tliem  to  run  at  large,  the 
railroad  company,  npon  the  other  hand,  is  under  no  obligation  to 
fence  its  roaa  or  track.  In  view  of  this  principle,  we  are  not  pre- 
■  pared  to  say  that  defendant's  motion  for  a  nonsnit  was  properly 
denied.  It  is,  however,  unnecessary  for  us  to  determine  the  qnes- 
tion.  After  tiie  motion  was  refused  defendant  proceeded  to  offer 
evidence  on  its  own  behalf.  In  so  doing,  it  sufficiently  snpplied 
the  defect  existing  in  plaintifiTs  proofs  aa  to  this  sabject,  and  tnere- 
!)y  waived  its  right  to  be  heard  nere  npon  the  erroneons  rnling,  if 
snch  there  were. 

Tlie  engineer  who  was  in  charge  of  the  engine  that  stmck 
plaintiffs  animal  was  placed  npon  the  witnees  stand,  and  his  testi- 
mony fairly  tended  to  establish  negligence.  He  practically  ad- 
mitted that  had  the  fireman  or  himself  been  looking  ont  the  right 
side  of  the  cab  as  it  rounded  the  cnrve  described,  an  animal  npoD 
the  track  or  near  it  might  have  been  seen  iu  time  to  stop  the  train ; 
also  that  the  ground  was  clear  of  obstacles  for  a  considerable  diB> 
tance  on  either  side  of  the  track  where  the  accident  occurred. 
From  these  admissions,  and  other  testimony  of  the  engineer, 
coupled  with  the  declaration  of  plaintiff's  witnees  that  the  cow 
could  have  been  seen,  from  the  point  where  she  was  lying  after 
the  injnry,  by  one  npon  the  engine  of  the  train  going  east,  for  150 
or  200  yards,  we  cannot  say  there  was  no  proof  whatever  of  negli- 
gence. Enongh  appeared  to  warrant  the  final  submission  of  Uiis 
qaestion  to  the  jnry  ;  and,  nnder  all  the  evidence,  we  do  not  feel 
justified  in  disturbing  their  verdict. 

The  judgment  is  accordingly  affirmed. 

Bee  note  to  Cinciimati,  etc.,  B.  Co. «.  Jonet^  m^ra,  p.  tU. 


Illinois  Centkal  R.  Ool 

«. 

Hawkins. 

{AdKUtee  Oatt,  iiifitt^ipi.     January  88,  1888.) 

iBB.  1880,  S  '1204,  provides  that  (berore  sale  a  mortgaeor  ahall  be 
ner  of  tbe  mortg^ed  property.  Bald,  that  it  is  do  defeace  to  a 
Buib  BKuuBt  a  railroad  compaDy  for  kiDing  stock  in  the  mortgagor's  pOMea- 
>ion  that  tbe  stock  was  mortgaged,  and  Me  mortgage  forfeited  at  the  time 
of  the  kiUing. 

Appeal  from  drcnit  oonrt,  lAyfayette  oonnty ;  W.  B,  Foath- 
BTOH,  Judge. 

Bl  A.  &  E.  R.  CaB.-86 


Code  ] 
deemed  o 


^db,  Google 


562  ILEINOIS   CENTRAL   E.    00.  V.    HAWKINS. 

Hawkins  sued  tlie  appellant  to  recover  damages  fur  the  killing 
of  a  mule  by  its  train.  Hawkins  had  previously  mortgaged  the 
mule,  but  at  the  tiin  the  mule  was  killed  the  mortgage  had  be- 
come forfeited,  but  Hawkins  still  retained  possesion  of  the  mule. 
On  the  trial  th^  railioad  company  ofiered  in  evidence  the  mort- 
gage, which  bad  been  duly  recoi'ded,  and  which  showed  on  its  face 
that  the  killing  occurred  after  the  mortgage  hail  become  forfeited, 
and  that  it  remained  unBatisfied,  the  railroad  company  insisting 
that  the  mortgage  should  go  to  the  jury  as  a  fact  upon  the  meaB- 
nre  of  damages.  The  court  below  excluded  the  mortgage,  and 
the  trial  resulted  in  a  judgment  againet  the  railroad  company, 
from  which  it  appealed. 

W.  P.  dbJ.  S.  Barris  and  ff.  A.  Barr  for  appellant 

Suliivan  d)  Whitfield  for  appellee. 

CooFBB,  C.  J. — The  single  question  presented  in  tbia  case  ia 
whether  a  wrong-doer,  who  tiaa  destroyed  personal  property  whiah 
bad  been  mortgaged  by  the  owner,  may,  when  sued  by  the  owner, 
diminish  the  amonnt  of  hie  reoovery  by  showing  an  oatetanding 
forfeited  mortgage,  the  mortgagor  having  remained  in  poesewion 
after  breach  of  tiie  condition  of  the  mortgage.  The  court  below 
ezoloded  the  evidence  when  offered,  and  we  approve  its  ruling. 

In  most  of  the  Stetee  of  this  Union  a  mortgage  upon  lands  is 
■viewed  in  law,  as  in  equity,  as  merely  a  seonrity  for  the  payment 
(tf  the  mortgage  debt,  and  not  as  an  estate  in  land,  except  Bo  far 
as  to  enable  the  mortgagee  to  acquire  poBseseion  as  an  aid  to  the 
oollection  of  his  debt.  Bnt  as  to  mortgagee  of  personal  property 
a  different  rale  seems  to  prevail,  and  after  breach  of  condition  the 
mortgagor  is  considered   in  law  as  the  owner  af  the  property. 


Jones,  Mortg.  699.  In  Everman  v.  Bobb,  52  Miss.  655,  Simrall, 
C.  J.,  in  delivering  the  opinion  of  the  court,  said,  arguendo,  that 
tiiis  rnle  prevailed  in  this  State,  and  that  after  forfeiture  of  the 
condition  the  mortgagee  was  at  law  vested  with  the  absolute  title 
to  the  mortgaged  chattel.  But  in  Buck  v.  Payne,  Id.  371,  the 
change  wrought  by  our  Code  provision  had  been  considered,  and 
applied  as  well  to  mortgages  oi  personalty  as  to  realtv.  That  pro- 
vision is  that,  "  before  a  sale  under  a  mortgage  or  deed  of  trust 
the  mortgagor  or  grantor  shall  be  deemed  tlie  owner  of  the  legal 
title  of  the  property  conveyed  in  such  mortgage  or  deed  of  trust 
except  as  against  the  mortgagee  and  his  assigns,  or  the  trustee,  af- 
ter breach  of  condition  of  sucli  mortgage  or  deed  of  trust"  Code 
1880,  %  1201.  The  effect  of  this  provision  must  be  to  preclude  a 
stranger  from  interposing  the  mortgage  or  deed  of  trust  as  an  ob- 
stacle against  the  mortgagor  or  grantor  seeking  to  recover  either 
the  specific  property  or  damages  for  its  injury  or  destrncCion. 
The  only  effect  of  evidence  of  the  mortgage,  and  its  forfeiture, 
would  be  to  show  tliat  another  had  the  legal  title,  with  the  right 


^dbyGoOglc 


KILLING   STOCK— STATDTE8 — MEQLIGEKCE.  663 

4o  immediate  poeeession,  whereby  the  estate  of  the  mortgagor 
wonid  be  cut  down  from  that  of  owner  to  that  of  a  mere  poeseesor 
at  the  will  of  another.  But  the  statute  declares  that  such  shall  not 
be  the  effect  of  a  mortgage  after  forfeiture,  bnt  that  notwithetand* 
Ing  ench  forfeiture  he,  tlie  mortgagor,  shall  continue,  as  before, 
rthe  legal  owner,  as  against  all  persons  other  than  the  mortgagee  or 
truBtee  in  a  deed  of  truat. 

Tlie  argument  of  appellant  is  that  it  is  liable  to  respond  to  the 
.mortgagee  for  the  injury  done  to  him  by  the  destruction  of  the 
property  to  the  extent  of  his  mortgage  debt;  and  because  of  the 
■mB.xim,  nemo  his  vexari,  it  is  contended  that  the  plaintiff  herein 
'Cannot  have  full  recovery.  We  deem  it  unnecessary  to  decide 
vhether  the  appellant  is  or  is  not  subject  to  a  suit  at  the  instance 
of  the  mortgagee,  for,  if  it  be  true  that  the  mortgagee  may  re- 
cover, that  would  not  affect  the  right  of  the  plaintiff  to  have  a  full 
recovery  in  this  action  by  force  of  the  statnte.  It  is  more  compe- 
■tent  for  the  legislature  to  abrogate  the  maxim,  nemo  bia  vexari, 
than  for  us  to  repeal  by  construction  the  legiaiative  declaration 
■that  the  mortgagor  in  posBesaion  is,  as  against  the  world  (other 
than  the  mortgagee),  the  owner  at  law  of  tne  mortgaged  property. 
It  may  be  that  there  may  be  cases  in  which  the  tort-feasor  would 
be  in  danger  of  a  anit  by  the  mortgagor,  and  also  of  one  by  the 
mortgagee,  but  relief,  if  there  be  any,  mast  be  had  at  the  hands  of 
A  court  of  equity  by  a  bill  of  interpleader.    Affirmed. 

lSos  note  to  (^ndnnati,  etc,  R.  Co,  e.  Jones,  tiyira,  p.  iftl. 


Atohison,  Topeea.  Ain>  Sabta  F6  R.  Oa 


(Admnte  Gate,  Cdloraib.    Somnbir  16,  1887.) 

In  an  action  in  Oolorado  for  stock  killed  in  New  Mexico,  a  Colorado  statnte 
(CODcerniiig  the  liabilitj  oC  nilroads  for  stock  killed,  does  not  apply;  and  in  - 
tbe  absence  of  proof  of  a  New  Mexico  statute,  the  exiatence  at  such  b  law 
there  will  not  be  presumed.  But  if  tbe  stock  was  killed  b;  the  gross  negli- 
gence of  the  company  it  is  liable  under  common-lav  principles  without  re- 
gard to  the  statutei  of  New  Mexico. 

The  mere  killing  of  an  auimal  by  a  railroad  train  is  not  evidence  of  negli- 
gence, and  the  fact  that  an  animal  was  found  killed  on  a  railroad  track  will 
not  warrant  a  recoTery  against  the  company. 

Cohuisbioitebb'  deoiwon.  Appeal  from  Las  Animas  connt^r 
■court. 


^d  by  Google 


664  ATOHISOfT,   TOPEEA,    ETC.,    B.    00.   V.    BETTB. 

This  was  an  action  brought  b;  appellee,  F.  G.  Betts,  against 
the  appellant,  the  AtchiBon,  Topeka  &  Santa  F^  B..  Co.,  be- 
fore a  justice  of  the  peace  of  Las  Animas  county,  for  tlie  valije 
of  a  mule  which  had  been  killed  upon  the  railroad  of  appellant. 
From  the  jndgment  of  the  justice  an  appeal  was  taken  to  the 
county  court,  and  trial  was  there  had  de  novo  and  to  a  jury. 

All  the  evidence  given  at  the  trial  was  the  testimony  of  appel- 
lee, which  was  as  follows :  "  I  am  plaintiff  in  this  cause.  In  the 
month  of  December,  a-d.  1882, 1  owned  a  mule  which  was  killed 
by  defendant.  I  lived  at  said  time  in  the  city  of  AlbuquerqnOj 
Territory  of  New  Mexico.  I  was  uEing  at  said  time  the  mul& 
which  was  killed,  with  other  teams.  There  was  no  hay  in  town. 
I  turned  the  mule  which  was  killed  loose  with  the  other  animals 
which  I  was  using  in  the  town  of  Albuquerque,  and  about  one  half 
mile  from  the  depot  of  defendant,  in  said  town.  It  was  in  the 
evening  when  the  mule  was  turned  loose,  and  I  found  it  the  next 
day  about  11  o'clock,  lying  apon  the  track  of  defendant,  dead.  It 
was  lying  in  the  depot  yards  near  the  depot  of  defendant,  with  its- 
head  lying  across  the  rail  of  one  track.  I  examined  the  nmle,  and 
found  that  one  side  of  its  head  was  mashed  and  its  skull  broken. 
I  skinned  that  part  of  the  head  which  was  injured,  and  found  the- 
eknll  was  mashed  and  broken.  The  mule  was  worth  two  hundred 
dollars.  The  tracks  made  by  the  mule  indicated  that  it  was  struck 
18  or  20  feet  away  from  where  it  lay,  on  another  track,  by  the  cars 
of  defendant.  H^d  notice  describing  the  mule,  cause  of  its  death, 
and  value  made  out,  swora  by  me,  and  served  on  the  station  or 
depot  agent.  Had  an  appraisement  made  by  two  persons,  who- 
vaiaed  Uie  mule  at  two  hundred  dollai-s.  The  notice  and  appraise- 
ment were  sent  to  Topeka  to  the  claim  agent  of  defendant,  and  I 
was  not  able  to  get  the  papers  returned  to  me." 

The  witness  was  here  asked  the  following  questions  by  plain- 
tiffs attorney :  "How  did  defendant  operate  the  road  at  that  place 
with  reeiard  to  running  its  trains  and  switch-engines  t"  Question 
objected  to  by  defendant  as  immaterial,  and  not  showing  any  con- 
nection with  the  injury  to  the  animal.  Objection  overriiled,  and 
exception  by  defendant.  "Answer.  Tlie  defendant  was  in  the 
habit  of  running  its  switch-engines  rapidly  in  and  about  the  depot 
yards."  The  witness  was  asked  the  followine  question:  "What 
was  the  custom  of  the  people  in  and  aronnd  Xlbnqnei'que  as  to  al- 
lowing their  stock  to  run  at  large )"  Objected  to  hy  defendant  as 
immaterial  to  the  issues  of  the  case.  Objections  overruled,  and  the 
defendant,  by  its  counsel,  then  and  there  excepted.  "A.  It  was 
the  custom  of  Mexicans  and  Americans  to  allow  their  stock  to  run 
at  large  tliere,  and  a  large  number  of  stock  was  running  loose  in 
the  vicinity.  Q.  State  whether  the  fact  that  large  numbers  of 
stock  were  running  at  large  was  known  to  the  agents  and  em- 
ployees of  defendant  at  said  time?"    Objected  to  by  defendant  as 


i,z.dbvGoOgle 


KILLING   STOCK — STATUTES — NEGLIGENCE.  668 

immaterial  to  tlie  iaenee.  Objection  overruled,  and  defendant,  by 
its  coaiisel,  tlien  and  there  excepted.  "A.  Tbe  agents  and  employ, 
ees  of  defendant  knew  that  Boch  wae  trne.  Q.  State  whether  the 
defendant  by  any  of  its  agents  admitted  the  killing  of  the  mnle." 
Objected  to  by  defendant  for  the  reason  that  such  admiasionB 
would  not  bind  defendant,  and  that  no  agency  was  shown.  Objec- 
tion overruled,  and  defendant,  by  its  coansel,  then  and  there  ex- 
cepted. "  A.  The  agent  at  that  point  said  if  defendant  killed  the 
mnle  it  would  pay  for  it."  The  witness  furtiier  featified  that  de- 
fendant did  not  have  its  yards  or  tracks  in  Albnqnerque  fenced  ; 
that  defendant  nsed,  for  a  switch-engine,  an  ordiniiry  engine,  and 
not  a  doable  header.  There  was  a  good  deal  of  business  done  at 
that  point  by  defendant,  and  defendant  rnn  its  switch-engines  very 
rapidly,  night  and  day,  both  forward  and  backward.  AlbiiCjuerqae 
is  situated  iu  a  stock  country,  where  stock-raising  is  the  principal 
business. 

On  cross-examination  ,  witness  testified  that  he  lived  in  the  city 
of  Aibiiqiierque,  New  Mexico,  at  the  time  the  mule  was  killed, 
And  abont  one-half  mile  from  the  depot  and  yards  of  defendant, 
and  that  be  turned  the  mnle  loose  at  his  place  of  residence  in  the 
evening,  and  fonnd  it  dead  upon  the  track  of  defendant,  and  in  the 
yards  of  defendant  in  said  town  of  Albuquerqne.  Did  not  know 
now  the  mule  was  killed  but  from  the  circumstances  as  stated  on 
direct  examination.  This  was  all  the  evidence  offered  by  either  of 
£aid  parties  to  said  cause. 

The  second  instruction  asked  by  the  plaintiS  below  and  given 
by  the  court  to  the  jury,  was  as  follows :  "  If  the  defendant  rail- 
road company,  bygroBS  negligence,  killed  plaintiff's  inule,  then  the 
•defendant  is  liable  for  the  damages,  and  is  so  liable  under  common- 
law  principles,  without  regard  to  the  statutes  of  New  Mexico." 

The  third  and  sixth  instructions  asked  by  defendant,  and  refused 
by  the  court,  were  as  follows:  "(3)  If  tlio  jury  believe,  from  the 
evidence,  that  the  plaintiff  turned  his  mule  loose  in  the  city  of  Al- 
bnqnerque, New  Mexico,  and  allowed  it  to  stray  upon  tbe  track 
of  the  defendant,  where  it  was  killed  by  defendant,  tlien  the 
plaintiff  was  guilty  of  negligence,  and  cannot  recover  the  value  of 
the  mule."  "(6)  If  the  jury  believe,  from  the  evidence,  that  the 
plaintiff  allowed  the  mule,  for  the  value  of  which  this  suit  is 
brought,  to  stray  upon  the  track  of  defendant,  and  was  there  killed 
by  the  cars  or  engines  of  defendant,  then  tbe  plaintiff  was  guilty 
«f  negligence  and  cannot  recover  in  this  action." 

The  jury  returned  a  verdict  for  the  appellee,  plaintiff  below,  in 
the  sum  of  $200,  and  the  appellant,  defendant  oelow,  moved  for 
a  vacation  thereof,  and  for  a  new  trial,  for  the  following  reasons: 
(1)  Tliat  the  verdict  in  said  cause  is  contrary  to  tbe  evidence  ;  (2) 
that  said  verdict  is  contrary  to  the  law  in  said  cause ;  (3)  that  tlie 
«ourt  erred  in  admitting  the  testimony  of  plaintiff  concerning  the 


^d  by  Google 


666  AT0HI80N,    TOPEKA,    ETC.,    B.    CO.   V.   BETT8. 

manner  of  running  the  engines  in  yards  of  defendant,  over  objec- 
tions of  defendant;  (4)  that  the  conrt  erred  in  admitting  the  teati- 
tnony  of  plaintiff  with  regard  to  the  general  cnstom  of  allowing 
BtocE  to  run  at  large  in  Albnqnerqne,  and  that  defendant,  bj  its 
^ents,  had  knowledge  of  this  fact ;  (5)  the  conrt  erred  in  refusing 
the  third  and  sixth  instrnctions  asked  by  defendant ;  (6)  the  court 
erred  in  giving  the  eecond  instrnction  aaked  by  plaintin. 

The  court  overruled  the  motion  for  a  new  trial,  and  gave  judg- 
ment for  appellee,  plaintiff  below,  upon  the  verdict.  The  appel- 
lant duly  excepted,  and  brings  the  case  here  by  appeal,  and  assigns 
errors  as  follows:  "First,  tTie  court  erred  in  admitting  improper- 
testimony  for  and  on  behalf  of  the  plaintiff  in  this:  that  it  erred 
in  permitting  the  plaintiff  to  testify  as  to  the  manner  of  operating 
defendant's  road  with  regai-d  to  running  its  trains  and  switch- 
engines  in  the  depot  yard  at  Albnqnerqne;  also  in  permitting  the 
plaintiff  to  testify  as  to  the  custom  of  the  people  in  and  aronnd 
Albuquerque  in  allowing  their  stock  to  run  at.  large,  and  that  this 
custom  was  known  to  the  agents  of  the  company;  all  of  which 
testimony,  as  shown  in  folios  17  to  20,  was  admitted  over  the 
objection  of  the  defendant.  Second,  the  conrt  erred  in  instruct- 
ing the  jury,  at  the  instance  of  the  plaintiff,  that  the  defendant 
company  was  liable  in  the  premises  if  tlie  animal  in  controversy 
was  killed  by  gross  negligence,  there  being  no  evidence  whatever 
in  the  canse  to  establish  gross  negligence,  oi'  any  negligence  what- 
ever, on  the  part  of  defendant  company.  Third,  the  court  erred 
in  refusing  to  give  to  the  jury  the  third  and  sixth  inBtrnctions,  and 
each  of  them,  iisked  by  the  defendant.  Fourth,  the  court  erred  in 
overruling  the  motion  for  a  new  trial.  Fifth,  the  verdict  is 
against  the  law  and  the  evidence,  wheiefore  said  appellant  prays 
that  the  said  judgment  may  be  reversed  and  set  aside." 

C  K  Gani  for  appellant. 

J.  0.  Packer  for  appellee. 

StjLLLcup,  C. — ^Wcre  the  facts  shown  sufficient  to  warrant  the 
judgment  for  the  value  of  the  mule?     In  this  State  we  have  a 

statute  fixing  an  unqnalilied  liability  against  a  railroad 
8I4TDTI  _oF  company  for  stock  Killed  by  it  in  tiie  operation  of  its 
pREsviirTioBOF  mil foad  business,  which  is  as  follows:  "That  every 
IX  nkw  meuco.  railroad  or  railway  corporation  or  company,  operatinc 

any  line  of  railroad  or  railway,  or  any  branch  thereof 
within  the  limits  of  this  State,  which  shall  damage  or  kill  any 
horse,  mare,  gelding,  filly,  jack,  jenny,  or  mule,  or  any  cow,  heifer, 
bull,  ox,  steer,  or  calf,  or  any  other  'domestic  animaf,  by  running 
any  engine  or  engines,  car  or  cars,  over  or  against  any  such  animal, 
shall  be  liable  to  the  owner  of  such  animal  for  the  damages  sus- 
tained by  such  owner  by  reason  thereof."  It  is  urged  ujion  the  ' 
part  of  the  appellee  here  that  our  courts  will   presume  that  the 


^d  by  Google 


KILLING  STOCK — STATUTES — NEGLIGENOB.  667 

laws  of  New  Mexico  on  this  enbject  are  the  aame  as  our  own.  To 
go  tbat  far  upon  presumption  would  be  against  reason 
and  the  current  of  authoritv.  Neither  can  it  be  said  J^^iSmi'^^S 
that  this  statute  makes  the  liability  rest  upon  the  neg-  SJKBct"  "*"" 
ligeuce  of  the  railroad  company,  nor  upon  the  assump- 
tion that  all  killing  of  stock  by  railroad  companies  in  the  opera- 
tion of  their  engines  and  cars  upon  their  trucks  is  negligent,  and 
that  such  negligence  is  shown  by  proof  of  the  killing;  for  there  is 
no  eucii  expression  in  the  statute,  and  such  assumption  or  conclu- 
sion therefrom  would  be  aeainst  reason,  principle,  and  the  adjudi- 
cations of  the  courts  on  the  subject  of  negligence  in  such  cases. 
Tiie  case  of  Walsh  v.  Kailroad  Co.,  8  Nev.  Ill,  was  a  case  for  the 
killing  of  a  cow  which  had  strayed  on  defendant's  railroad  track, 
in  the  western  part  of  the  town  of  Gold  Hill,  in  Storey  county, 
Nevada.  In  the  decision  of  the  case  the  court  say :  "  But  it  is 
not  the  law  that  the  mere  killing  of  a  domestic  animal  by  a  rail- 
road train  is  evidence  of  ne^li^ence.  This  question  has  frequently 
been  before  the  courts,  ana  invariably  ruled  against  the  plaintiff, 
except  where  the  geiiei'al  rule  of  law  is  abrogated  by  positive 
statute.  The  fact  of  killing  an  animal  of  value  by  the  company's 
engines,  says  Redfield,  is  not  priwi  facie  evidence  of  negligence. 
1  Itedf.  R.  K.  465.  And  it  is  so  ruled  in  the  following  cases: 
Scott  «.  Railroad  Co.,  4  Jones  (N.  C),  432;  Railroatf  Co.  v. 
Means,  14  Iiid.  30;  Railroad  Co.  v.  Reedy,  17  III:  580;  Railroad 
Co.  «.  Patchin,  16  III.  198." 

It  will  be  seen,  by  the  language  used  in  our  statute  creating  this 
liability,  that  it  is  independent  of  any  question  or  element  of  neg- 
ligence ;  neither  can  such  impOEition  of  the  liability  be  regarded 
ae  a  penalty,  for  there  is  nothing  prohibited  or  commanded  t)y  the 
statute,  nor  any  wrong  defined  or  declared  thereby.  The  statute 
is  novel,  and  does  not  rest  upon  any  general  or  commonly  accepted 
principles  of  law.  We  see  in  such  a  statute  that  the  declared 
policy  of  the  State  is  to  foster  the  stock-growing  industry,  and  that 
the  railroad  companieB,  to  this  extent,  shall  bear  the  whole  burden 
of  loss  occasioned  by  the  conflict  or  accidental  collisions  which  may 
occur  in  carrying  on  the  business  of  the  railroads,  and  the  business 
of  stoct-growing  within  the  State.  Such  statute  will  be  confined 
in  its  operation  to  the  limits  of  our  own  State,  and  its  adoption 
elsewhere  will  not  be  presumed,  in  the  absence  of  proof  of  the  fact. 
Besides,  if  there  is  snch  a  law  in  New  Mexico,  it  would  be  a  law 
of  the  legislature  of  New  Mexico,  and  courts  do  not 
take  judicial  notice  of  the  statutes  of  other  States, —  ^"""""ii- 
they  must  be  shown  like  other  facts.  Polk  -o.  Butter-  JS^fom""** 
field,  9  Colo.  325,  also  section  387,  Code  Civil  Prec. 
which  provides  how  the  proof  may  be  made.  So  it  follows  tbat 
we  cannot  presume  the  existence  of  such  law  in  New  Mexico,  and,. 
in  the  absence  of  the  proof  of  the  laws  of  New  Mexico,  no  matter 


^d  by  Google 


568  ATCHISON,   TOPEKA,    ETC.,    R.    CO.  «.    BETTS. 

wliat  their  prorisioDs  may  be,  they  are  unavailing  to  sustain  the 
judgment.  Neither  can  onr  statute  refer  ed  to  sustain  the  judg- 
ment, for  the  reason  that  the  wrong  or  acts  constituting  the  canse 
of  action  occorred  beyond  the  limits  of  tliis  State,  so  the  statute 
can  hare  no  appHcation  to  this  cause  of  action. 

In  the  coneiaeration  of  a  statute  in  the  ease  of  Whitford  v.  Rail- 
road Co.,  23  N.  T,  i65,  we  have  the  following  from  the  decision 
of  the  court  in  tlie  opinion  delivered  by  Deiiio,  J,:  "I  liave  thus 
far  assumed,  without  a  formal  statement  of  the  principle,  that  the 
statute  referred  to  has  no  force  beyond  the  limits  of  the  State  of 
New  Tork.  This  is  an  elementary  doctrine,  and  the  contrary  was 
not  insisted  upon  as  a  general  rule  in  the  ai-gument.  The  laws  of 
New  York  have  no  greater  operation  in  respect  to  transactions 
which  take  place  wholly  within  the  territory  of  New  Granada  than 
the  laws  of  that  republic  have  in  regard  to  New  York  transactions. 
It  is  no  doubt  within  the  competency  of  the  legislature  to  declare 
that  any  wrong,  which  may  be  inflicted  upon  a  citizen  of  New 
York  abroad,  may  be  redressed  here  according  to  the  principles  of 
our  law,  if  the  wrong-doer  can  be  found  here,  bo  as  to  be  subjected 
to  the  jarisdiction  of  ohr  courts ;  bnt  as  we  could  not,  by  any  legis- 
lation of  this  kind,  pnt  an  end  to  the  liability  of  the  party  to  the 
l^x  looi,  or  divest  the  foreign  government  of  its  juriEdiction  over 
tlie  ease,  such  a  statute  would  rarely  be  just  in  its  operation,  and 
would  be  more  likely  to  lead  to  confusion  and  oppression  tlian  to 
any  beneficial  results.  .  .  .  This  limitation  upon  the  operation  of 
the  laws  of  a  country  is  quite  consistent  with  the  practice  which 
universally  prevails,  by  which  the  courts  of  one  country  entertaiD 
suits  in  relation  to  causes  of  action  which  arise  in  anotiier  conn- 
try,  when  the  parties  come  here,  so  as  to  be  made  subject  to  their 
jurisdiction.''  To  the  same  effect  are  Bank  v.  Earle,  13  Pet.  519; 
Needham  v.  Kailwav  Co.,  38  Vt.  307,  308. 

It  is  claimed  on  tue  part  of  the  appellee  that  the  judgment  ia  _ 
sustained  by  the  principles  of  the  common  law,  and  the  cliarge  to 
the  jnry  given  at  his  request  as  to  gross  negligence;  while  it  ia 
urged  in  oehalf  of  appellant  that  our  courts  should  presume  the 
existence  of  the  common  law  in  New  Mexico,  and  that,  by  the 
principles  thereof,  the  facts  in  this  case  show  no  right  of  recovery 
against  appellant.  It  is  evident  that,  under  the  principles  of  the 
common  law,  the  facts  shown  would  not  warrant  the  recovery. 
Under  the  common  law,  an  owner  turning  his  domestic  animals  at 
targe  was  thei-eby  guilty  of  snch  negligence  as  would  defeat  his 
right  to  recover  for  injury  to  them,  while  so  at  large,  except  in 
cases  of  gross  negligence.  The  evidence  in  this  case  shows  no 
such  negligence.  In  no  view  of  the  case  does  the  evidence  show 
a  liability.  Railway  Co.  v.  Henderson,  anU  (in  this  court;  opin- 
ion tiled  April  SOth). 


iiz^dbvCoOglc 


KILLING  STOCK— CONTACT  WITH  TRAIM.  569 

The  judgment  slionld  be  reverBed,  and  tlie  caee  remanded  for 
farther  proceedingB. 

Kacon,  0.     I  cuiicnr  in  the  conclnsion  reached. 

Bising,  C.     I  concnr. 

By  the  Coart.  For  the  reasons  assigned  in  the  for^^ing  opin- 
ion the  jadgmeot  of  the  coanty  court  is  reversed,  and  the  caose  re- 
manded. 

8m  note  to  Oincinnati,  etc.,  R  Co.  «.  Jones,  fupni,  p.  49L 


iNTKKHATIOIf  AL  AND  ObEAT  KoBTHSBN  B.  OOk 


(Adtanee  Caie,  Taxu.    May  IT,  1887.) 

Under  a  statute  (B«t.  8t.  Tex.  art.  4846)  providing  that  eveiy  railroad 
company  shall  be  liable  to  the  owner  for  aoy  stock  IcilTed  or  injured  by  the 
locomotiTM  and  cars  of  the  company  in  running  over  their  respective  rail' 
ways,  unleM  the  track  is  fenced,  a  railroad  company  ii  not  liable  for  an  in- 
Jury  to  an  animal  running  on  the  track  through  fright  at  the  train,  and  being 
njured  on  a  trestle,  and  not  by  contact  with  the  locotnotiTe  or  cats, 

Appb&l  from  Medina  county. 
Elias  Edmonda  for  appellant. 
Price  <&  Merrvweaiher  for  appellee. 

Statton,  J. — The  evidence  was  conflicting  as  to  whether  the 
animal  belonging  to  the  appellee  was  ininred  by  actual  contact  with 
the  locomotive  on  the  appellant's  railwav,  but  there  f^.^^  a^b 
was  snflBcient  evidence  to  justify  the  submiasion  of  tliat  «»™DeTioi™. 
question  to  the  jnry,  as  was  eorrectlv  done  by  the  first  paragmph 
of  the  charge  given.  The  jnry  would,  however,  have  been  author- 
ized to  And  from  the  evidence  that  tliera  was  no  contact  between 
the  animal  and  the  train,  and  that  the  animal  through  fright  ran 
apon  the  ti'estle,  and  was  tlins  wounded.  The  appellant  asked  an 
instruction  to  the  effect  tliat  the  appellee  was  not  entitled  to  re- 
cover unless  his  animal  was  Btrnck  by  the  engine  or  cars,  and  this 
instruction  was  qualified  by  the  following  words:  "  UnleBs  you 
further  believe,  as  before  metrncted,  that  she  was  forced  by  de- 
fendant's train  to  jump  upon  the  treetle-work,  and  thereby  injured 
herself  so  bb  to  necessitate  her  killing," — and  then  given.  The 
second  paragraph  of  the  charge  given  was  as  follows:  "If  yon  be- 


^dbyGoOglc 


670  IKTEBNATIONAL,   ETC.,   E.   CO.  V.   HTTGHES. 

liere  from  the  evidence  tliat  the  mare  was  not  rnn  npon  and  killed 
b;  the  train,  or  if  you  believe  that  the  killing  was  not  cauied  bj 
defendant's  train  lorcing  the  animal  on  the  track,  and  upon  the 
trestle-work,  you  will  find  for  the  defendant."  It  is  urged  that 
the  giving  of  tbie  paragraph  of  tbe  charge  and  the  qnalificatioD 
made  to  the  charge  aeked  were  erroneous. 

These  charges  involve  the  propoeition  that  a  railway  company, 
under  the  laws  of  this  State,  is  liable  for  an  injnry  to  an  animal 
which  may  be  caused  otherwise  than  by  actual  contact 
iHJDHT  lOT  witli  the  engine  or  cars,  and  without  fault  of  the  com- 
liCT  WITH  »'-  pany  or  its  employees,  provided  its  road  is  not  fenced. 
ODBDBCAH.  ^hc  statule  provides  that  "each  and  everv  railroad  com- 
pany  shall  be  liable  to  the  owner  for  the  value  of  all  stock  killed 
or  injtrred  by  the  locomotives  and  cars  of  such  railroad  company 
in  running  over  tlieir  respective  railways,  which  may  be  recovered 
by  suit  before  any  court  having  competent  jurisdiction  of  tbe 
amount.  If  tho  railroad  company  fence  in  their  road,  they  shall 
only  then  be  liable  in  case  of  injury  resulting  from  the  want  of 
ordinary  care."  Rev,  St.  art.  4245.  This  statntory  liability  is 
based  on  an  injury  caused  by  locomotLves  and  cars.  It  certainly 
was  never  intended  that  such  a  liability  should  exist,  even  in  case 
of  contact  between  a  locomotive  or  car  and  sn  animal  if  the  con- 
tact was  caused  by  the  movement  of  the  animal  while  the  engine 
or  car  was  stationary ;  and  to  make  clear  the  manner  in  which  the 
injnry  must  be  caused  by  the  locomotive  or  car,  the  statute  de- 
clares that  it  mnst  be  incurred  in  running  over  their  respective 
railways.  This  involves  the  idea  of  contact  between  a  rnnning 
engine  or  car  and  the  animal,  and  not  an  injury  resulting  in  some 
indirect  manner  from  the  operation  of  a  railway. 

The  statute  of  Indiana  provides  "  that  whenever  any  animal  shall 
be  killed  or  injured  by  the  oars  or  locomotive  or  other  carriages 
used  on  any  railroad  in  tliis  State,  the  owner  thereof  may  ane  tlie 
railroad  company  before  a  jnstice  of  the  peace."  It  further  directs 
that,  on  hearing,  judgment  shall  be  given  in  favor  of  the  owner  of 
tbe  animal  injured  or  killed,  without  regard  to  whether  the  injnry 
was  the  result  of  wilful  misconduct  or  negligence,  or  the  result  of 
unavoidable  accident.  It  also  makes  the  law  inapplicable  when  a 
railway  is  securely  fenced.  Under  this  statute  it  nas  been  steadily 
held  tiiat  a  railway  company  was  not  liable  for  an  injnir  wliicn 
resulted  from  an  act  of  the  injured  animal  caused  by  fnght  in- 
duced by  the  care,  and  not  from  actual  contact  between  tne  car, 
locomotive,  or  other  carriage  of  the  railway  and  the  animal.  Rail- 
road Co.  V.  Smith,  58  Ind.  575 ;  Railroad  Co.  v.  Basket,  10  Ind. 
409.  Tlio  statute  in  Missouri  is  very  similar  to  that  of  this  State, 
and  under  it  the  ruling  has  been  that  "  a  direct  or  actual  collision 
was  contemplated;  that  when  the  agents  of  the  road  ran  the  loco- 
motives or  cars  against  any  animal,  and  thereby  injnred  it,  or  in 


^dbyGoOglc 


KILLING  STOCK— OOirrAOT  WITH  TRAIN.  671 

any  other  manner  it  was  hnrt  by  actnal  contact  or  toocL,  then  the 
company  would  be  responsible  for  the  penalty,  otherwise  not.'* 
LafEerty  v.  Railroad  Co.,  44  Mo.  291 ;  Croy  v.  Railway  Co.,  19 
Am.  &  Eng.  R.  R.  Gas.  608. 

The  statnCe  of  Illinois  provides,  when  railways  are  not  fenced, 
that  such  companies  shall  be  liable  for  all  damages  which  may  be 
done  by  "  the  agents,  engines,  or  care"  of  such  corporations,  to 
cattle,  horses,  or  other  stocli ;  and  under  it  the  ruling  has  been 
that  the  injury  must  be  caused  by  actual  collision, — that  is,  it  mnst 
have  been  done  by  the  "agents,  engines,  or  cars  of  defendant, 
and  not  merely  caused  by  the  act  of  the  animal  induced  by  fright 
caused  by  the  train."  Schertz  v.  Railway  Co.,  15  Am,  &  iEng,  R. 
R,  Cae.  525.  This  seems  to  us  to  be  the  true  constrnction  of  the 
statute  of  this  State,  and  we  know  of  no  contrary  construction  hav- 
iBg  been  placed  on  a  similar  statnte. 

The  statute  of  Kansas  imposes  a  liability  for  animals  killed  or 
wounded  "  by  tlie  engine  or  cars  on  snch  railway,  or  in  any  other 
manner  whatever  in  operating  such  railway,"  with  the  proviso  that 
tbe  act  shall  not  apply  to  any  company  "  whose  road  is  enclosed 
with  a  good  and  lawful  fence,  to  prevent  such  animals  from  being 
on  such  road."  In  construing  this  statute  in  TUilioad  Co.  v.  Jones, 
20  Kan.  529,  the  supreme  conrt  of  that  State,  placing  the  liability 
for  an  injury  not  resulting  from  actual  contact  upon  the  general 
claim  of  the  statute,  said  :  "  The  liability  is  not  limited  to  cases 
where  tJie  animal  is  killed  or  wounded  by  tiie  'engine  or  cars,* 
which  might,  perhaps,  be  construed  as  referring  solely  to  actual, 
collision,  but  extends  to  those  cases  where  the  animal  is  injured  in 
any  other  manner  whatever  in  operating  such  railway.  This  last 
clanse  is  very  broad,  and  clearly  covers  a  case  like  the  present. 
Whether  the  engine  struck  the  mare  or  not,  the  injury  resulted 
directly  from  the  operating  of  the  railway.  ,  .  .  Clearly,  the  train,, 
acting  upon  the  animal's  sense  of  fear,  and  the  open  space  of  the 
b.idge,  are  the  direct  causes  of  the  injury.  It  results  from  and 
occurs  in  the  operating  of  the  railroad,"  The  same  ruling  was- 
made,  nnder  the  same  statute,  in  a  cafe  in  which  animals  were  in- 
jui-ed  by  falling  through  a  railway  bridge  when  they  were  not  in- 
duced to  go  upon  the  bridge  through  fright  caused  by  a  moving 
train.     Railroad  Co.  v.  Edwards,  20  Kan.  531. 

The  statute  of  Iowa  provides  tliat  "any  corporation  operating  a 
railway  that  fails  to  fence  the  same  against  live-stock, on  all  points- 
where  such  right  to  fence  exists,  shall  be  liable  to  the  owner  of 
any  such  stock  injured  or  killed  by  renson  of  the  want  of  such' 
fence."  And  in  the  case  of  Young  v.  Railway  Co.,  44  Iowa,  172, 
it  was  held  that  the  company  was  liable  for  an  injury  to  animals 
caused  by  their  falling  through  the  railway  bridge,  though  there 
was  no  collision  between  the  cars  and  the  animals.  In  that  c:iee 
it  was,  in  effect,  held  "  that  the  failure  to  fence  the  track  was  tlic- 


^d  by  Google 


672  MOOEE  V.    BURLINGTON   AND   WESTEBN   E.    CO. 

proxtmate  cause  of  the  injary;  that  the  animals  were  injured  bj 
reitgon  of  the  want  of  sncli  fence."  The  same  rnling  was  made  in 
KrauB  V.  Railroad  Co.,  55  Iowa,  338. 

The  statntes  of  Kansas  and  Iowa  are  bo  dissimilar  to  that  of  this 
State  that  deciaions  conatraing  them  can  have  no  application. 

We  do  not  wish  to  be  understood  that  in  no  case  uonld  a  recov- 
ery be  had  for  an  injury  to  animals  where  there  is  no  collision  with 
a  moving  engine  or  car,  for  cases  may  occur  in  which  the  injury, 
without  collision,  may  be  the  proximate  result  of  the  negligence 
of  a  railway  company  or  ite  employees ;  but  in  such  a  case  the  re- 
covery wonld  not  be  based  on  tne  statute,  and  proof  of  negligence 
would  have  to  come  from  the  party  alleging  it.  In  the  case  before 
OS  there  is  no  proof  of  such  negligence. 

The  charge  given,  and  the  qnalifieation  to  the  charge  aebed, 
were  snch  as  to  mislead  the  jary,  and  ought  not  to  have  been 
^ven  ;  and  for  this  reason  the  judgment  of  the  district  court  will 
£e  reversed,  and  the  cause  remand^.     It  ie  bo  ordered. 

8«e  note  to  Cincinnati,  etc.,  R  Co,  c.  Jones,  tupra,  p.  <91. 


BUBUNOTOH  AHD  WkSTBEN  R.  Oo. 

(Ad^arut  OoM  Iowa.     Junt  18, 1887.) 

PIi^ntiCB  hone  was  io jured  b;  falling  through  a  cattle-ruard.  The  injnrj 
was  alleged  to  have  been  csuaed  by  the  failure  of  the  defendant  to  fence  Iti 
track,  liie  evidence  teoded  to  prove  that  the  tracks  of  three  honea,  one  of 
which  was  the  horse  injured,  showed  that  they  were  going  fast,  on  the  right 
of  way  before  the  cattle  guard  was  reached,  and  that,  during  the  night  in 
which  the  accident  occurred,  a  train  patsed  over  the  road.  The  jury  were 
inBtracted*that  in  order  to  entitle  the  plaiatifi  to  recover,  he  must  establbh, 
by  a  preponderance  of  evidence,  that  the  horse  was  injured  by  being  driTen 
by  one  of  defendants  trains  into  the  cattle-guard.  BUd,  that  the  presump' 
tion  that  the  horses  were  frightened  by  a  train  is  a  mere  lanniBe,  and  a 
verdict  for  the  plaintiff  cannot  be  sustained. 

Appeal  from  district  court,  Mahaska  county. 

Action  to  recover  damages  caused  by  the  defendant's  failure  to 
fence  its  road,  whereby  a  norse,  the  property  of  the  plaintiff,  was 
injured.  Trial  by  jury.  Judgment  for  plaintiff,  and  defendant 
appeals. 

Kdley  db  Co(^>er  and  John  F.  Laoey  for  appellant. 

BoUon,  <&  McCoy,  for  appellee. 


^d  by  Google 


KILUNG   6TOCK — EVIDENCE  OF  INJUKT.  573 

ts,  J. — Tlie  eridence  EhowB  that  the  horse  was  injured 
early  in  Jannary,  1884,  and  that  the  railway  waa  not  fenced.  It 
IB  not  claimed  the  horee  was  Btruck  by  the  engine,  or  that  the 
character  of  the  injury  woold  justify  such  an  inference,  but  the 
plaintifE  claims  the  horse  was  friglitened  or  driven  along  the  rail* 
way  by  a  train,  and  that,  while  running,  he  fell  throngli  a  cattle- 
guard,  and  was  iniiired.  The  court  inetrncted  the  jury  that,  in 
order  to  entitle  the  plaintiff  to  recover,  tie  must  establieh  by  a 
preponderance  of  the  evidence  that  the  horse  was  injured  by  being 
driven  by  one  of  the  "  defendant's  trains  into  a  cattle-guard." 

The  question,  therefore,  is  material  whether  there  is  any  evidence 
tending  to  sustain  such  proposition.  The  onlv  evidence  bearing 
on  8U0U  question  is  as  follows :  There  were  three  horses  together, 
only  one  of  which,  however,  was  injured.  They  were  on  the 
right  of  way,  and  their  tracks  "  showed  they  were  going  fast," 
both  before  the  cattle-guard  was  reached  and  afterward.  The 
horse  was  injured  in  the  night-time,  and  no  person  saw  the 
occurrence.  There  ie  evidence  tending  to  show  that  daring  the 
night-time  a  train  passed  over  the  road. 

As  the  burden  was  on  the  plaintiff  to  show  that  the  horse,  be- 
cause of  fright  caused  by  the  approach  of  a  train,  fell  into  the 
cattle-guard,  we  are  required  to  determine  whether  the  foregoing 
evidence  has  any  tendency,  when  fairly  considered,  to  establish 
sneh  fact.  It  will  be  observed  that  the  only  fact  wliich  can  be 
regarded  as  established  ie  that  the  indications  were  the  horses  were 
mnning  before  they  reached  and  after  they  had  passed  the  cattle- 
guard.  This  does  not,  in  our  opinion,  constitnte  any  evidence 
upon  which  the  required  presumption  can  be  legitimately  based. 
Horses  become  frightened  from  many  causes ;  and,  when  not  under 
control,  run  without  any  apparent  reason.  The  presumption,  then, 
that  they  were  frightened  by  a  train,  is  a  mere  surmise  or  inference, 
which  cannot  be  legitimately  indulged,  for  the  reason  tliere  is  no 
evidence  upon  which  it  can  he  based.  We  are  unable  to  see  any 
difference  between  this  case  and  Meade  v.  Raih'oad  Co.,  45  Iowa, 
699. 

Connsel  for  the  appellee  cite  and  rely  on  Hailway  Co.  v.  Dement, 
44  III.  75,  and  other  like  oases,  where  it  clearly  appeared,  from 
the  nature  of  the  injury  received  by  the  animal,  that  it  had  been 
struck  by  a  train  of  cars,  and  it  was  held  that  the  plaintiff  was 
entitled  to  recover,  although  no  one  saw  the  accident.  In  this 
class  of  cases  there  clearly  was  sufficient  evidence  from  which  the 
required  inference  or  presumption  could  be  l^itimately  drawn. 
Keversed. 

Bee  note  to  Cincinnati,  etc,  B.  Co.  s,  Jones,  mpro,  p.  491, 


^dbyGoOglc 


BTAIE  V.   DIVINE. 


{Adtanei  Oatt,  Sbrth  GanHntt,     DtemOw  5, 1867.) 

A  statute  (Code  N.  Car,  {  3S37)  providing  that  when  live  Btock-ihftll  be 
'killed  by  any  railroad  in  certain  couattes  named,  it  shall  be  a  miadetneanor, 
and  certain  officer*  named,  along  with  the  conductor  and  engineer  of  the 
train  which  did  the  killing  may  be  indicted;  and  alao  ($  2S29}  that  whenever 
.any  live-Btock  shall  be  killed  by  the  engines  or  cars  of  any  or  the  railroads 
'mentioned,  and  such  killing  is  proved,  it  shall  be  prima  faeu  evidence  of 
negligence  in  anj  inilictment  therefor,  is  tmconstltutional :  the  Qrat  section 
lacking  the  equality  and  uniformity  neccflsar;  to  conatitutiaaal  l^nslatian, 
i*nd  the  second  section  subverting  Uie  presumptiou  of  innoCBUce  and  depriv- 
ing the  defendant  of  the  equal  protection  of  tne  laws. 

In  a  trial  under  an  indictment,  charging  the  defendant,  as  superintendent 
of  a  railroad  company,  with  a  personal  criminal  responsibility  for  raonii^ 
over  and  killing  two  cows  by  a  train,  the  special  verdict  found  that  the  de- 
fendant was  not  on  the  train  that  did  the  killing,  and  was  in  no  way  com- 
iDected  with  said  killing,  .ffild,  that  the  special  verdict  should  have  found, 
aubject  to  the  opinion  of  the  judge  upon  the  law,  the  defendant  guilty  ex 
pot  guilty. 

Appkal  from  saperior  conrt,  ColumbnB  oonntv ;  Cl&bE,  Judge 
Prosecution  by  ttie  £tate,  plaintiff,  against  J.  F.  Dirine,  defend 
:aiit,  chared  undsr  acts  N.  C.  1880,  c.  13,  vith  personal  criminal 
liability  for  the  kilting  of  two  cows  by  a  train  on  the  railroad 
itrack  of  the  company,  whereof  lie  was  b  a  peri  n  ten  dent.  JndgmeQt 
.for  defendant  in  the  circuit  conrt,  and  plaintiff  appealed. 
The  Attom&f-gensrdl  for  the  State. 

Smith,  C  J. — The  prosecntion  of  the  defendant,  commenced  by 
warrant  isaned  by  a  justice  of  the  peace  of  Colnmbus  county,  and 
tried  by  him,  charges  the  defendant,  as  superintendent  of  the 
Ficn.  Wilmington,  Columbia  &  Angusta  R.  Co.,  with  a  per- 

sonal criminal  responsibility  for  the  running  over  and  killing  two 
cows,  the  property  of  J.  0.  Powell,  the  prosecutor,  by  a  train 
moving  over  its  track,  on  May  19,  1886,  The  proceeding  is  insti- 
tuted nnder  the  act  of  1880,  c.  13,  which  is  brought  forward  and 
constitutes  the  four  last  sections  (2327-2330)  of  chapter  10  of 
second  volume  of  the  Code,  The  enactment  is  in  these  words: 
"Wlien  any  cattle,  horses,  mules,  eheep,  or  other  live-stock  shall 
be  killed  or  injured  by  any  railroad  in  the  counties  of  Colnmbns, 
New  Hanover,  Branswick,  Bladen,  Roveson,  Richmond,  Anson, 
.Union,  Gaston,  Xincoln,  Cleveland,  and  Burke,  it  shall  be  a  misde- 


ed by  GoOglc 


KILLING  STOCK— TTKOOSSTITUTIONAL  LEGISLATION.     575 

meatior,  and  the  president,  receiver,  and  the  enperintendent  of 
encli  road,  and  also  the  engineer  and  conductor  in  charge  of  tlm 
train  or  engine  by  which  sncli  killing  or  injury  is  done,  may  be  in- 
dicted for  snch  killing  or  injury :  provided,  if  the  parties  indictable 
ander  this  section  shall,  witliin  six  months  after  the  killing,  as 
aforesaid,  of  any  stock  mentioned  in  this  section,  and  before  any 
indictnaent  is  pmferred  or  warrant  issued,  pay  the  owner  of  such 
stock  as  may  be  killed  his  charges  for  said  stock,  or  iu  the  event 
the  charges  are  too  high,  or  thought  to  be  so,  a\xch  sum  or  snms  as 
may  be  assessed  by  three  commissioners, — one  to  be  chosen  by  the 
party  whose  stock  is  killed  or  iiijnred,  a  second  by  the  party  ac- 
cused of  kiUing  the  same,  and  the  third  by  the  two  commissioners 
chosen  as  above  indicated, — who  siiall  meet  at  some  place  in  the 
county  where  the  stock  is  killed  or  injured,  to  be  selected  by  the 
parties  interested,  within  thirty  days  after  they  are  chosen  and  ac- 
cepted, snch  payment  shall  be  a  bar  to  any  prosecution  nnder  this 
secttou',  and  tne  decision  of  two  of  the  said  commissionei-s  shall  be 
final  for  the  parpoees  of  this  section :  provided,  further,  if  any 
person  «r  persons  liable  to  indictment  under  this  sectioa  shall, 
within  the  time  prescribed,  propose  to  the  party  endamaged  to 
refer  the  matter  of  damages,  in  tae  manner  hei*einbefore  indicated, 
to  three  eonimissioners,  and  the  party  endamaged  shall  refuse  or 
decline  such  proposition,  snch  refusing  or  declining  shall  be  a  bar. 
to  any  prosecution  under  this  section  :  provided,  also,  if  the  paiiy 
endamaged  shall,  at  any  time  before  the  indictment  is  preferred  or 
warrant  iBsoed,  directly  or  indirectly  receive  any  earn  in  full  com> 
pensation  of  his  damages,  such  compensation  shall  be  a  bar  to  any 
prosecution  ander  this  section  ;  and  if  any  compensation  be  so  re- 
ceived after  indictment  is  preferred  or  warrant  issued,  or'  if  after 
said  time  tlie  party  accused  shall  pay  or  tender  to  the  owner  of  the 
stock  killed  the  valne  of  the  same  as  decided  by  the  commission- 
ers, as  above  provided,  in  either  case  the  proeecntion  shall  go  no 
farther,  and  the  accused  shall  be  charged  only  with  accrued  costs." 
The  second  section  prescribes  the  punishment  by  fine  not  exceed- 
ing $50,  er  imprisonment  not  longer  than  30  days.  The  third 
provides  that,  when  stock  is  killed  or  injured  hy  a  running  engine 
or  ear  iu  the  counties  enumerated,  it  shall  he  prima  J'a&ie  evidence 
of  uegligence  on  the  trial.of  the  indictment.  The  fourth  section 
declares  that  the  indictment  against  the  officers  of  railroad  com- 
panies shall  not  lie  until  a  proposition  to  refer  the  matter  has 
been  proposed  by  the  party  claiming  that  he  has  been  damaged. 
Upon  an  appeal  from  the  judgment  rendered  against  the  defend- 
ant by  the  justice  of  tlie  peace,  his  niling  was  reversed  upon  a 
special  verdict  found  by  the  jiiry  in  these  words:  "The  cattle 
were  kilted  by  the  oars  of  the  Wilmington,  Columbia  &  Augusta 
R.  Co.,  as  alleged  nnder  the  following  circumstances,  to  wit: 
That  at  the  time  of  the  killing  it  was  a  bright  moonlight  night 


^dbvGoo^lc 


676  STATE  V.   DIVINE, 

about  10  P.K.;  tliat  the  train  was  on  ecliedole  time,  rnnning  at  tlie 
rate  of  40  milee  \>er  hour ;  that  the  cattle  conld  have  been  seen  at 
least  one  hnndred  jards  ahead  of  the  train;  that  the  cattle  were 
not  seen  b;  the  engineer  until  struck  hy  the  train  ;  that  the  cattle 
were  the  property  of  J.  C  Powell ;  that  the  corporation  owning 
the  road  is  the  same  which  was  chartered  by  the  act  of  March  1, 
1870,  as  the  Wilmington  &  Carolina  R  Co.,  which  was  afterward 
changed  to  the  Wilmington,  Colombia  &  Augusta  K.  Co.;  that  the 
defendant  ie  the  Buperintendent  of  the  said  Wilmington,  Colnmbia 
&  AngQsta  K.  Co.;  that  the  said  company  refused  to  refer  the 
matter  to  arbitration  ;  that  the  defendant,  J.  F.  Divine,  was  not 
on  the  train  that  did  the  killing,  and  wae  in  no  way  connected  with 
eaid  killing."  Tlie  special  verdict  stops  liere,  without  the  essential 
finding  that  the  accused  ie  or  is  not  guilty,  as,  in  the  opinion  of 
the  court  npon  the  recited  facts,  they  constitute  or  do  not  constitute 
the  criminal  act  charged.  The  qnestion  of  the  defendant's  guilt 
IB  to  be  decided,  nnder  his  plea,  alone  by  the  jury,  in  cases  requir- 
ing a  jury,  and  tliese  include  all  criminal  accnsations,  except  in 
certain  petty  misdemeaooi-B,  by  express  provision  of  Const,  art.  1, 
§13. 

The  special  verdict,  to  be  anfficient,  mnst  find,  subject  to  the 
opinion  of  tlie  judge  upon  the  law,  the  defendant  guilty  or  not 
guilty,  or  it  is  legally  no  verdict  at  all.  State  v.  Padgett,  S2  N. 
C.  544,  and  cases  cited  in  the  opinion.  The  proper 
vKBDicTuauui  conrse,  then,  would  be  to  set  aside  the  finding,  and  di- 
""■  rect  a  venire  de  novo  in  the  court  below,  unless  it  can 

be  seen  npon  the  face  of  the  proceedings  that  the  prosecution  can- 
not be  successfully  maintained;  and  this  is  the  defence  set  up  on 
behalf  of  the  accused.  It  is  insisted  that  tlie  facts  cliarged  in  the 
warrant  do  not  constitute  a  criminal  offence,  and  cannot  be  made 
anch  nnder  the  act  without  infringing  upon  the  provisions  of  the 
organic  law,  and  taking  from  the  accusea  some  of  tlie  immunities 
and  personal  securities  which  it  contains  for  the  pi-otection  of  the 
citizen  against  the  exercise  of  legislative  power.  The  obieclions 
to  tlie  validity  of  the  legislation  are  pointed  out  and  forcibly  pre- 
sented in  the  bnef  of  defendant's  counsel,  with  an  array 
viuDiTT  ^  of  nnmerous  rulings  in  their  support,  as  follows  :  (1) 
oE^rronr  In  its  whole  structure  and  manifest  purpose,  it  createa 
out  of  a  private  civil  injury  a  public  prosecntion  to 
subserve  the  interest  of  the  injured  party,  and  to  be  put  in  opera- 
tion or  arrested  at  hie  instance  and  election.  (2)  It  aesunies  a 
criminal  liability  to  have  been  incurred  by  an  officer  of  a  railroad 
corporation  without  his  concurrence  in  the  act  of  the  subordinate, 
and,  assuming  negligence  and  guilt,  pute  hitn  on  the  defensive,  and 
requires  him  to  repel  the  presumption  when  he  in  no  manner  par- 
ticipated in  what  was  done.  (S)  It  nndertakee  to  drive  the  ac- 
cused to  an  adjustment  of  the  claim  for  damages  by  assenting  to  a 


^d  by  Google 


KILLING   STOCK — nNCONSTITUTIONAL   LEGISLATION.     577 

reference  to  arbitratioti,  and  to  deprive  him  of  hie  oonetitntional 
right  to  be  tried  in  the  conrte  of  the  State,  tribnnals  provided 
under  the  couBtitution,  and  by  a  properly  conetitnted  jnry  acting 
nnder  a  jndge.  (4)  It  places  at  the  election  of  the  claimant  the  ia- 
Btitntion  of  the  prosecution,  wiiich  otherwise  is  suspended,  by 
making  a  proposition  for  a  reference.  (5)  It  discri  mi  nates,  with- 
oat  apparent  difference,  between  coantiee  and  railroads,  giving 
partial  operation  to  a  law  general  in  its  provisions,  and  equally 
applicable  to  all,  by  which  tlie  eame  act  ie  rendered  criminal  in 
one  locality  which  is  not  so  in  another,  and  raising  out  of  an  act 
done  by  one  employee  a  presnmption  of  gnilt  against  another  em- 
ployee who  did  not  in  any  way  participate  in  it.  We  do  not  per- 
ceive any  difficulty  in  the  act  of  1856-57  fOode,  g  2326)  raising  a 
presumption  of  negligence  on  the  part  of  the  company 
from  the  fact  of  killing  or  injuring  stock,  in  a  civil  suit  i 
,  for  reparation  brought  within  six  months  thereafter,  as  > 
is  explained  in  the  opinion  in  Doggett  v.  Railroad,  81  uum. 
N.C.  459,  and  whose  validity  has  not  been  qneationed 
in  the  nunierons  cases  which  have  been  before  the  court.     Bat  the 

firesent  case  passes  far  beyond  the  limits  of  that  enactment,  in 
astening  a  criminal  reeponsibility,  not  npon  the  principal  whose 
agent  does  the  injury,  but  npon  a  co-employee  in  the  eame  general 
service;  and  this,  not  npon  all,  but  Bpecially  upon  railroads  tbat 
I'un  through  or  in  particular  counties.  We  do  not  say  that  there 
may  not  be  local  legislation,  for  it  ie  very  common  in  onr  statute 
books;  but  that  an  act,  divested  of  any  peculiar  circamstanoes, 
d.nd  per  se  made  indictable,  sliould  be  so  throughout  the  State,  as 
essential  to  that  equality  and  uniformity  which  are  fundamental 
conditions  of  all  just  and  constitutional  legislation. 

Looking  at  the  indictment  it  will  be  seen  that  the  only  material 
allegations  are  that  the  prosecutor's  cattle  were  killed  by  a  runniDg 
train  on  tlie  road  of  the  company  of  which  the  defendant  is  super- 
intendent,  without  connecting  him  with  the  act,' and 
scarcely  more  definite  is  the  special  verdict.  Do  these  ScSm"  So 
words  impute  crime?  and  upon  mere  proof  of  these  5"c»im.'""' 
facts  is  the  charge  established?  and  mast  the  defendant 
be  convicted  unless  be  repels  the  negligence  which  the  statute  pre- 
sumes in  the  subordinates  in  managing  the  train  ?  The  very  ques- 
tion involves  an  answer,  unless  all  the  safeguards  thrown  around 
one  accused  of  crime  are  disregarded,  and  lie  left  without  their 

Srotection.  The  defendant  was  not  on  the  train  when  the  acei- 
ent  occurred,  and  has  no  personal  relation  to  it,  except  as  results 
from  his  position  as  a  higher  officer  of  the  road  ;  making  the  of- 
fence one  by  construction.  Jndge  Cooley,  in  his  work  on  Consti- 
tutional Litnitatione,  at  page  309,  referring  to  a  trial  for  criminal 
offences  of  different  graces,  uses  this  impressive  language :  "  The 
mode  of  investigating  the  facts,  however,  is  the  same  in  all,  and 
81  A.  &  E.  l"{.  Cm. -87 

DglizsdbyGoOgIC 


578  STATE  V.    DIVINE. 

this  is  throQgb  a  trial  by  JDry,  earrocnded  by  certain  eafeguards, 
which  are  a  well  underBt»>od  part  of  the  ayetena,  and  whicli  the 
government  cannot  dispense  with ;"  meaning,  as  we  nnderatand, 
uiat  the  charge  must  go  before  tlie  jnry,  and  the  miilt  of  the  ac- 
cused proved  to  them,  with  the  presnmption  of  innocence  nntil 
tliis  is  done.  In  Cnmminge  v.  Missoari,  4  Wall.  328,  Mr.  Jnstice 
Field,  referring  to  certain  enactments  in  that  State,  says:  "The 
claoBes  in  gneetion  subvert  the  preantnption  of  innocence,  and  alter 
the  rules  of  evidence  which  heretofore,  under  the  universally 
recognized  principles  of  the  common  law,  have  been  supposed  to 
be  fundamental  and  unchangeable."  "  But  I  have  no  hesitation 
in  saying,"  remarks  Selden,  J.,  in  Wynehamer  v.  People,  13  N.  T. 
446,  "  that  they  [the  legislature]  cannot  subvert  that  fundamental 
rnle  of  justice  which  holds  that  every  one  shall  be  presamed  inno- 
cent until  he  is  found  guilty."  The  case  is  not  analogous  to  that 
wherein,  for  civil  pnrposes,  negligence  is  inferred  from  the  fact  of 
killing  stock,  and  requiring  matters  in  excuse  to  be  shown,  which 
lie  peculiarly  within  the  knowledge  of  the  agent  who  perpetrates 
the  act,  or  controls  the  running  of  the  engine,  when  it  is  done ; 
Dor  to  the  statute  (Code,  g  1005)  which  makes  the  having  about 
the  person  one  of  the  deadly  weapons  forbidden  to  be  carried  or 
worn,  prima  faoie  evidence  of  concealment,  for  this  is  the  sole  per- 
sonal act  of  tne  party,  of  the  consequences  of  which  he  is  aware, 
and  because  a  small  weapon,  if  concealed,  would  be  almost  impos- 
Bible  of  proof  direct,  while  the  possession  of  such  is  intimately  and 
naturally  connected  with  the  secret  carrying,  and  furnishes  strong 
evidence  of  the  fact.  In  Sao  Mateov.  Kailroad,  8  Am.  &  Eng.  K 
R.  Cas.  10,  in  construing  the  fourteenth  amendment  to  the  Con- 
stitution of  the  United  States,  it  is  said :  "  Whatever  a  State  may 
do,  it  cannot  deprive  any  one  within  its  jurisdiction  of  the  eqnu 
protection  of  the  laws.  And  by  equal  protection  of  the  laws  is 
meant  eqaal  security  under  them  to  every  one  on  similar  terms,  in  - 
his  life,  his  liberty,  his  property,  and  in  the  pursuit  of  happiness." 
Substantially  the  same  doctrine  is  announced,  and  by  tiie  same 
eminent  judge  (Mr.  Justice  Field),  in  Barbier  v.  Connolly,  113  TT. 
S.  31,  in  which  he  adds  "  that  no  greater  burdens  should  be  laid 
npon  one  thau  are  laid  upon  others  in  the  same  calling  and  condi- 
tion." 

Fiyhh  what  has  been  said,  it  results  that  the  legislation  in  ques- 
tion has  not  the  sanction  of  the  constitution,  and  cannot  be  uplield 
as  within  the  competency  of  the  law-making  power  to  enact.  We 
have  gone  into  this  inquiry  in  order  to  settle  the  question  of  the 
validity  of  the  statute  in  its  application  to  the  case  before  us,  and 
because  it  will  practically  put  an  end  to  the  litigation.  But  for 
the  defects  in  tiie  special  verdict  we  are  compelled  to  direct  that 
it  be  set  aside  for  further  proceedings  in  the  court  below.  It  is  so 
adjudged. 


^d  by  Google 


KILLIITG   STOCK — UNCONSTITUTIONAL   LEGISLATION.     679 


.  .     .  illing 

or  iajuring  stock,  in  a  civil  suit  for  dunages.    Similar  eDactmeoU  have  beeo 

«aased  in  manj  at  the  States,  and  their  validitj  has  been  UDquestioDed.  Bee 
TesterD  Hd.  R.  Co.  v.  Carter,  11  Am.  &  Kug.  R.  H.  Cas.  482  ;  Little 
Rock,  etc.,  R.  Co.  o.  Finley,  11  lb.  409;  Bt.  Louts,  etc.,  R.  Co.  e.  HagsD,  19 
lb.  446;  Little  Rock,  etc.,  R.  Co.  e.  Hensou,  19  lb.  440;  Bame  v.  Jooes,  19 
lb.  443;  Brentner  s.  Chicago,  etc.,  R.  Co.,  19  lb.  448;  Jones  i.  Columbia, 
«tc.,  R.  Co.,  19  lb.  459;  Roberts  v.  Richmond,  etc,  R.  Co.,  30  lb.  478;  8a- 
▼annab,  etc.,  R.  Co.  v.  Oergcr,  39  lb.  274. 

But  the  court  coaaider  that  the  Act  of  IBBO  (Code  S  3827-2880),  which 
makes  the  killing  or  injuring  stock,  in  certain  counties  of  the  Btate  therein 
mentioned  a  misdemeanor  and  prima  Jaeit  evidence  of  negligence  ou  the 
trial  of  the  indictment,  is  unconstitutional,  on  two  grounds:  first,  because 
the  offence  being  onl;  indictable  in  particular  counties  the  act  lacks  that 
-equality  and  uniform  it;  essentia]  to  constitutional  legislation;  and  second, 
because  it  subverts  the  pruumption  that  the  accused  is  innocent  until  proved 
guilty,  and  deprives  him  of  the  equal  protection  of  the  lavri. 

Verj  little  stress  is  laid  upon  the  drat  ground,  and  it  ia  admitted  that 
there  may  be  local  legislation  in  North  Carolina,  yet,  bet^uae  the  ofiense  is 
not  made  indictable  throughout  the  Btate,  the  act  is  held  invalid.  It  seems 
to  be  well  settled,  however,  that  laws  pubiic  in  their  objecta,  may,  provided 
the  Btat«  constitution  does  not  forbid,  be  either  general  or  local  in  their  ap- 
pEication.  They  may  Embrace  many  subjects  or  one,  and  may  extend  to  Ul 
titizens,  orbe  confined  to  particular  classes.  Bee  Cooley  on  Constitutional  Lim- 
itations, 482,  and  note  I,  where  it  is  said:  >>To  make  a  statute  or  public 
law  of  general  obligation  it  is  not  necessary  that  it  should  be  equally  applU 
«abte  to  all  parta  of  the  State.  All  that  is  required  is  that  it  sbaU  apply 
equally  to  all  persons  within  the  territorial  limits  described  in  the  act.  State 
V.  County  Commissioners  of  ^alt.,  29  Hd.  G18.  Bee  Pollock  e.  HcClurken, 
42  111.  870;  Haskel  v.  Buriington,  SO  Iowa,  232;  Unity  «.  Burrage,  108  W. 
8.  447." 

The  second  and  chief  objection,  hpwerer,  in  the  opinion  of  the  court,  to 
the  validity  of  the  act  u,  that  b^  declaring  that  the  killing  or  injuring  ot 
the  stock  shall  be  prima  faeU  evidence  of  negligence  on  the  trial  of  the  in- 
dictment, "  the  fundamental  rule  of  justice  which  holds  that  every  one  shall 
be  presumed  innocent  until  he  is  found  guilty"  is  subverted.  Some  impor- 
tance also  ia  attached  to  the  fact  that  the  accused  in  the  principle  case  was 
the  superintendent  of  the  road,  and  was  not  on  the  train  when  the  accident 
occurred,  or  connected  in  any  nay  with  the  commission  of  the  offence,  except 
bj  construction  of  law. 

The  entire  act,  however,  on  general  principles  is  declared  invalid  and  the 
decision  would  doubtless  have  been  the  same  had  the  person  indicted  been 
the  engineer  of  the  train  that  killed  the  stock. 

Constitutional  Protections.— Judge  Cooley,  in  bis  work  on  Constitutional 
Limitations,  page  378,  says;  "The  humanity  of  our  law  always  presumes  an 
accused  part;  innocent  until  he  is  proved  to  be  guilty.  Thb  is  a  presump- 
tion which  attends  all  the  proceedings  against  him,  from  their  initiation 
until  they  result  in  a  verdict,  which  either  finds  the  party  guilty  ot  converts 
the  presumprion  of  innocence  into  an  adjudged  fact."  And  Johnson,  J,,  in 
Wynebamer  ».  The  People,  18  N.  Y.  444,  in  considering  B.  17  of  the  Act  of 
18SS,  to  prevent  intemperaace,  which  provides  that  proof  of  the  delivery  of 
liquor  shall  be  jnima  fimie  evidence  of  sale,  was  of  the  opinion  that  sucb  a 
provision  subverts  the  fundamental  rule  which  presumes  every  man  innocent 
until  proved  guilty,  and  violates  that  clause  of  the  constitution  which  in- 


^d  by  Google 


580  .     STATE  V.  DIVIHB. 

eludes  this  mle  and  Becures  to  eTery  man  charged  with  crime  a  trial  by 
"  due  procesa  of  law." 

So  Hr.  Justice  Field,  in  Cumming«  r.  HisAOuri,  4  W&ll.  (IJ.  S.)  828,  intimates 
that  the  presumption  of  innocence  is  a  fundamental  one  and  unchui?eable. 

These  are  among  the  decisions  relied  upon  by  the  court  to  sustain  its  posi- 
tion taken  in  the  principal  case. 

Contrary  Doctrinoi — There  are,  however,  coses  which  hold  that  the  legis- 
lature rosy  declare,  even  in  criminal  cases,  what  proof  shall   be  taken   as- 


prima/aeit  sufficient  to  establish  any  particular  fact.  This  does  not  infringe, 
It  is  held,  upon  the  right  of  the  accused  to  have  his  ffuilt  or  innocence  ascer- 
tained by  a  jury  or  conclude  him  from  rebutting  the  prima  facU  case  and 
showing  the  truth.  A  prima  facie  case,  it  is  said,  does  not  take  away  from, 
a  defendant  the  presumption  of  innocence  and  the  burden  of  proof  is  not 
thereby  changed,  but  remains  with  the  Commonwealth  to  estaolish  the  ac- 
cusation which  it  makes.  And  in  State  v.  Cunningham,  M  Coon.  IBS, 
the  court  say  that  the  jury  may  take  into  consideration,  with  the  prima  fade 
case,  the  presumption  of  the  innocence  of  the  accused. 

Some  01  the  authorities  which  conflict  with  the  decision  in  the  principal 
case  are  given  below,  together  with  the  ruling  and  reasoning  of  the  court. 

Prima  Fade  Gate  does  not  take  away  Presumption  of  Defendant'!  Inno- 
eancfli^In  Maryland,  by  the  Act  of  I87S,  ch.  329,  relating  to  defaulters,  tha- 
certiflcate  of  the  Comptroller  of  the  State,  or  of  the  respective  clerks  of  the 
count;  commissioners,  sboning  the  accused  to  be  a  defaulter  as  collector  of 
State  taxes,  is  made  admissible  in  every  prosecution  under  the  act,  as  prima- 
faeU  eridence  of  such  defalcation.  Sdd,  that  the  admissibility  of  sucn  evi- 
dence does  not  contravene  the  Declaration  of  Rights,  providing  that  the  ac- 
cused shall  have  the  right  to  be  confronted  with  the  witnesses  against  him;, 
and  that  it  is  competent  for  the  legislature  to  declare  that  such  cerUAcate- 
shall  be  received  Kt  prima  faei»  evidence  of  defalcation. 

Johns  «.  The  State,  5S  Md.  850;  Alvey,  J.,  said:  "The  statute  declares 
that  the  certificate  shall  be  received  vt^ma  facie  evidence  of  defalcation* 
This  is  no  novel  or  extraordinary  provision  to  be  found  in  statutes  prescrib- 
ing rules  of  evidence  for  the  government  of  courts  and  juries.  .  .  .  There- 
can  be  no  question  of  the  power  of  the  legislBture  to  change  the  common  law 
rules  of  evidence,  or  to  prescribe  new  rules,  altogether  different  from  those 
known  to  the  common  law;  and  it  may  declare  what  proof  shall  be  deemed 
or  taken  as  prima  fade  sufficient  to  establish  any  particular  fact,  even  in 
criminal  cases.  It  may  readily  be  conceded  that  a  statute  that  sboutd  mak& 
evidence  eondudee,  which  was  not  so  of  its  own  nature  and  inherent  force, 
and  by  that  means  preclude  the  party  from  showing  the  truth,  would  be- 
simply  void.  But  the  evidence  furnished  by  the  certificate  only  being  prima 
fade  in  its  effect,  the  traverser  was  left  at  full  liberty  to  repel  and  overcome- 
that  prima  fade  effect,  bj  evidence  that  ought  to  have  been  within  bis  own 
control." 

In  Commonwealth  e.  Kimball,  H  Pick.  (Hass.)  873,  the  jury  were  in- 
Strncted  in  a  criminal  prosecution  that  nhen  the  Qovernment  made  out  % 
prima  fade  case  it  was  then  incumbent  on  the  defendant  to  restore  himself  to- 
that  presumption  of  innocence  in  which  he  was  at  the  commencement  of  the 
trial.  Hdd,  to  be  error.  Shaw,  0.  J.,  said;  "Making  out  ^primafade  case 
does  not  necessarily  or  usually  change  the  burden  of  proof.  A  prima  fad» 
case  is  that  amount  of  evidence  which  would  be  sufficient  to  counterbalance 
the  general  presumption  of  innocence,  and  warrant  a  conviction,  if  not  en- 
countered and  controlled  by  evidence  tending  to  contradict  it,  and  render  it 
improbable,  or  to  prove  other  facts  inconsistent  with  it.  But  the  estabtish- 
meot  of  a  prima  fade  case  does  not  take  away  from  a  defendant  the  pre- 
sumption of  innocence,  though  it  may,  in  the  opinion  of  a  jury,  be  such  tts- 


^d  by  Google 


KILLING   STOCK— UNCOHSTITUTIUNaL   LEGISLATION.        581 

10  rebut  and  contiol  it;  but  that  preaumption  remains,  in  aid  of  any  other 
proofs  oflered  bj  the  defendant  to  rebut  the  proaecutor's  pri(7ur/a(n«  csbo." 

Bo  in  Ogletree  c.  The  State,  28  Ala.  698,  it  was  held  that  in  a  criminal 
«aae,  the  Btats  being  required  to  prove  beyond  all  reaaonable  doubt  the  facta 
which  conatitute  the  oSence,  the  eatabliabment  of  a  prima  facia  caae  does  not 
take  away  the  presumption  of  the  defendant's  ianocence,  nor  ahift  the  bur- 
dan  of  prsof. 

See  also,  United  Btates  e.  Douglass,  3  Blatchf.  (U.  8.)  207. 

In  CommonweaUh  e. Williams,  6  Qray  (Mass.),  1;  it  was  held,  in  aprose- 
-cution  for  being  a  common  seller  of  Bpirituous  and  intoxicating  liquors,  that 
the  provision  in  tliestatute  that  the  delivery  of  spirituous  liquor  lu  places  other 
than  a  dwelling-house  shall  be  deemed  to  be  prima  faeie  evidence  of  a  sale, 
is  constitutional  and  vslid.  Herrick,  J.,  said:  "  We  cannot  find  any  sufQcient 
reason  for  declaring  this  provision  of  the  statute  unconstitutional  aud  void. 
The  ample  authority  conferred  upon  the  legialature  to  make,  ordain  and  es- 
tablish all  manner  of  wholesome  and  reasonable  ordera,  laws,  and  statutes, 
which  it  shall  judge  to  be  for  the  good  and  welfare  of  the  Commonwealth, 
necessarily  invests  that  department  of  the  Government  with  the  right  of  de- 
termining conclusively  upun  the  propriety  and  reasonableness  of  all  provis- 
ions which  are  not  in  some  way  repugnsat  to  the  constitution.  .  .  .  The 
particular  provision  in  the  statute  of  1862,  to  which  the  defendant  objects, 
-cannot  therefore  be  rejected  ss  inoperative  and  void  merely  because  it  may  be 
thought  to  have  been  an  inexpedient,  an  unwise,  or  an  unreasonable  act  of  leg- 
islation, or  because  it  is  in  fact  the  substitution  of  a  new  rule  of  evidence  id 
the  place  of  that  which  was  before  the  rule  of  the  common  law.  Nor  does 
it  appear  that  the  establishment  of  this  new  rule  of  evidence  is  in  any  degree 
the  result  of  judicial,  instead  of  legislative  action;  or  that  it  does  In  anyway 
infringe  upon  the  indisputable  right  of  the  accused  to  have  his  guilt  or  in- 
nocence ascertained,  and  the  charge  made  against  him,  passed  upon  by  a 
Jury.  The  statute  only  prescribes,  to  a  certain  extent,  and  under  particular 
circumstances,  what  legal  effect  shall  be  given  to  a  particular  species  of  evi- 
dence, if  it  stands  entirely  alone  and  is  left  wholly  unexplained.  This  nei- 
ther conclusively  determines  the  guilt  or  innocence  of  the  party  who  is  ac- 
cused, nor  withdraws  from  the  jury  the  right  and  duty  of  passing  upon  and 
determining  the  issue  to  be  tried.  The  burden  of  proof  remains  continually 
upon  the  government,  to  establish  the  accusation  which  it  makes.  Making 
-out  a  pnma  fadt  caae  does  not  change  the  burden  of  proof."  The  judge 
then  enumerates  the  following  instances  in  which  the  legislature  have  given 
peculiar  significance  to  particular  facts  as  evidence,  in  criminal  cases,  by  the 
special  provisions  of  different  statutes.  Thus,  they  enacted  that  in  all  proa- 
ecutions  against  persons  for  altering  or  destroying  the  marks  of  the  owner 
upon  any  logs  or  lumber,  their  possession  by  the  accnsed  should  be  presump- 
tive evidence  of  his  guilt.  Upon  the  trial  of  an  indictment  for  selling  or 
poBseasing  with  intent  to  sell  any  fictitious  lottery  ticket,  they  provided  that 
any  such  ticket  should  be  deemed  to  be  false  unless  the  accused  should  prove 
the  same  to  have  been  duly  issued  by  the  authority  of  some  legislature  within 
the  United  Btates.  Bo  they  enacted  that  the  legal  presumption  from  the 
possession  of  certain  birds,  during  the  season  when  it  was  unlawful  to  take 
or  kill  them  in  the  Btate  of  Hassachusetts,  should  be  that  they  were  taken 
or  killed  there.  Bo,  also,  in  prosecutiona  for  the  sales  of  spirituous  liquors 
the  legal  presumption  was  declared  to  be  that  the  defendant  had  not  been 
licensed. 

Thomas,  J. ,  dissented  from  the  judgment  of  the  court,  on  the  ground  that 
"tbe  statute  impaired  the  value  of  the  right  of  trial  by  jury,  by  taking  from 
the  accused  the  presumption  of  innocence  which  should  attend  him  througb- 
•out  the  trial.  Bee,  also,  Commonwealth  r. Wallace,  7  Qraj  (Haas.),  222,  and 
<;ommonwealth  e.  Bowe,  14  Qray  (Uase.)  47,  where  this  ruling  waa  affirmed, 


^d  by  Google 


082  8TATK  V.    DIVIME. 

and  Holmu  v.  Hunt,  1S8  Haas.  SOS,  where  the  queation  is  conndered  bf 
Gray,  C.  J. 

In  Howard  e.  Hoot,  M  N.  T.,  S6S,  268,  the  court  say:  "It  may  be  con- 
ceded, that  a  law  that  should  make  evidence  concluaire,  which  was  not  so 
necessarily  in  and  of  itself,  and  thus  preclude  tbe  adverse  party  from  show- 
ing the  truth,  would  be  void,  as  indirectly  working  a  confiscation  of  prop- 
erty or  a  destruction  of  vested  rights.  But  such  is  not  the  efCect  of  declar- 
ing any  circumstance  or  any  evidence,  however  slight,  prima/aeit  proof  of  a 
fast  Co  be  established,  leaving  the  adverse  party  at  liberty  to  rebut  and  over- 
come it  by  contradictory  and  better  evidence.  That  this  may  be  done  is 
well  settled  by  authority." 

So  in  State  e.  Hurley,  64  He.  C63,  it  was  held  that  section  82  of  the  Act 
of  185%,  providing  that  "  whenever  an  unlawful  sale  of  intoxicating  liquor 
ia  allesed  and  a  delivery  is  proved  it  shall  not  be  necessary  to  prove  a  pay- 
ment, but  such  delivery  shall  be  suflQcient  evidence  of  sale"  is  constitutional. 

The  provision  of  a  statute  that  on  the  trial  of  every  complaint  for  keeping 
spirituous  liquors  in  violation  thereof,  proof  of  the  flnding  of  such  liauor 
in  tbe  possession  of  the  accused,  under  certain  circumstances  specified  in 
said  act,  shall  be  received  and  acted  upon  by  the  court,  as  presumptive  evi- 
dence that  such  liquor  was  kept  or  held  for  sale  contrary  to  the  provisions 
of  said  act,  is  constitutional. 

The  State  o.  Cunningham,  35  Conn.  196.  Wwte,  C.  J.,  wdd :  "With 
what  intent  a  person  keeps  intoxicatiog  liquors,  is  always  a  question  of  fact 
for  the  jury,  to  be  determined  upon  a  view  of  all  the  evidence.  And  in  dis- 
posing of  that  question,  they  are  required  by  the  statute  to  consider  the 
keeping  of  the  articles  in  the  manner  specified  in  the  statute,  as  presumptive 
evidence  of  an  unlawful  intent.  But  that  evidence  may  be  rebutted  and 
controlled  by  the  circumstances,  as  welt*  as  by  other  evidence  in  the  case. 
whether  shotvn  by  the  accused  in  his  defence,  or  by  the  State  in  connection 
with  the  evidence  proving  the  possession.  With  such  evidence,  the  jury 
may  also  take  into  consideration  the  presumption  of  the  innocea(»  of  tbe  ac- 

In  Uatthew  e.  Offley,  8  Bumner  (C.  C),  110,  under  an  act  of  Congress  re- 
quiring all  masters  of  American  vessels  when  bound  to  any  port  of  the 
United  States,  to  take  on  board  destitute  seamen,  at  the  request  of  consuls, 
etc.,  and  inflicting  upon  the  masters  a  penalty  for  refuainE  so  to  do,  it  is  pro- 
vided that  the  certificate  of  such  consul,  given  under  his  band  and  official 
seal,  shall  be  prima  facie  evidence  of  such  refusal.  Edd,  that  the  cert)ficat« 
of  the  consul  is  prima  faeit  evidence  of  the  refusal  of  the  master  to  take  the 
seaman  on  board,  and  of  all  the  facts  stated  in  tbe  enacting  clause  of  thft 
act,  which  are  necessary  to  bring  the  case  within  tbe  penalty. 


^d  by  Google 


FEKOB— Nni8AH0K. 


Niw  ToBK  Oehtral  and  Hddbon  Rivbe  E.  Oo. 

(lOS  JHm  tori,  142.) 

Plaintiff  was  lessee  of  certain  premisea,  upon  vhicb  was  a  hotel,  formerl; 
separated  trom  defendant's  premises  b;  a  strip  of  land  thirtj  feet  nide. 
Tfaia  strip,  in  the  deed  under  which  defendant  claimed,  which  was  from  W., 
the  then  owner  of  the  whole  propsrtj,  was  described  as  thereby  dedicated 
for  the  purposes  of  a  public  street ;  the  dedication  was  never  accepted  bj  the 
public.  The  deed  from  W.  stated  that  the  conveyance  was  for  tne  purpose 
of  a  railroad  depot  only,  and  the  grantee  erected  a  depot  upon  the  premises. 
W.  devised  the  remaining  property,  one-fourth  to  each  of  four  devisees.  On 
partition  of  the  hotel  property,  not  including  the  strip  of  thirty  feet,  two  of 
the  devisees  became  the  owners.  They  subsequently  quitclaimed  to  de> 
fendant's  predecessor  an  undivided  one  half  of  that  portion  of  the  strip  in 

auestioD,  twenty  feet  wide,  adjoining  the  land  so  conveyed  by  W.  The 
eeds  contained  a  provision  to  the  effect  that  the  conveyance  was  made  on 
the  express  coaditioa  that  the  grantee,  its  successors  or  aasigna  should  at  all 
times  naiatain  an  opening  into  the  premises  conveyed, -opposite  to  the  hotel, 
for  the  convenient  access  of  passengers  and  baggage  to  and  from  the  prem- 
ises conveyed,  which  opening  should  at  no  time  be  closed.  The  hotel  was 
accessible  from  the  depK>t  across  said  strip,  and  depended  largely  for  its  pU- 
tonage  upon  the  passengers  arriving  at  and  departing  from  the  depot.  De- 
fendant,  on  succeeding  to  the  title  of  W.'s  grantee,  built  a  high  and  sub- 
stantial fence  the  whole  length  of  the  strip,  on  the  line  between  the  twenty 
feet  so  conveyed  and  the  remaining  ten  feet,  with  no  opening  therein,  thua 
cutting  off  all  passage  between  tlie  hotel  and  depot.  In  an  action,  among 
other  things,  to  restrain  the  continuance  of  the  fence,  held,  that  by  the  failure 
.  to  accept  the  dedication,  the  thirty  feet  strip  remained  the  property  of  W., 
and  descended  to  his  devisees  at  his  death;  that  plaintiff,  as  lessee  of  the 
grantors,  could  not  question  the  validity  of  the  quitclaim  deeds  which  must 
be  regarded  as  conveying  all  the  interest  of  the  grantors  in  the  twenty  feet, 
and  they  thereby  abandoned  all  claim  to  the  same  as  a  public  highway;  but 
that  the  provision  in  the  deeds  as  to  the  opening  was  a  covenant  running 
with  the  land  conveyed ;  that  such  covenant  made  the  right  of  passage  across 
the  twenty  feet  a  right  or  easement  appurtenant  to  the  hotel  property,  and 
so  it  was  enforceable  by  pluntiff  as  lessee  of  such  property;  and  that,  there- 
fore, the  action  was  maintainable.      • 

Plaintiff's  complaint  simply  alleged  that  he  was  in  posaesaion  of  the  hotel 
property.  On  trial  defendant  moved  for  a  dismissal  of  the  complaint  on  tixa 
ground  that  it  did  not  show  plaintiff  to  be  a  party  or  privy  to  any  covenant 
ID  the  deeds.  The  court,  on  motion  of  plaintiff,  permitted  an  amendment 
of  the  complaint  setting  up  the  tease  to  plaintiff.     Held,  no  error. 

The  complaint  alleged  the  strip  of  land  in  question  to  be  a  public  highway, 
and  the  fence  for  that  reason  a  nuisance.  There  were  however,  averments  to 
the  effect  that  there  existed  an  easement  appurtenant  to  the  hotel  property, 
consisting  of  a  right  ot  way  across  some  portion  of  the  strip  for  passengers 
and  their  baggage,  and  that  defendant  in  erecting  the  fence  had  left  no 
opening,  as  of  right  it  should  have  done.  Held,  that,  while  the  omission  to 
state  in  the  compluot  that  the  easement  claimed  was  reserved  by  the  deed« 


^d  by  Google 


.  684  AVEHT  V.   MEW   YOEK  CENTBAL,   ETC.,    B.    CO. 

might  have  been  ground  for  a  motion  to  make  the  complaint  more  deflnite, 
it  did  not  defeat  plaiotifTa  right  to  pay  Telief  by  virtue  of  the  reflerration 
ivhicfa  be  could  not  obtain  on  any  other  ground. 

The  Judgment  below  directed  the  removal  of  the  whole  fence.  Sdd,  er- 
ror; that  plaintiff  was  aimpl;  entitled  to  00  opening  opposite  to  the  hotel 
of  sufficient  size  to  permit  the  convenient  passage  o^  and  at  no  time  to  be 
closed  against,  passengers  and  their  baggage. 

Appeal  from  judgment  of  the  general  term  of  tlie  saperior 
court  of  Buffalo,  entered  upon  an  order  made  May  9, 1885,  wliicli 
affirmed  a  judgment  in  favor  of  plaintiff  entered  upon  a  decision 
of  tlie  court  on  trial  at  special  term. 

The  nature  of  the  action  and  tlie  material  facta  are  stated  in  the 
opinion. 

George  C.  Greene  for  appellant. 

John  Frankenheimer  for  respondent 

Peckham,  J. — Tlie  plaintiff  is  lessee  of  certain  premises  in  Bnf- 
f;ilo,  which  were  originally  divided  from  premises  of  defendant's 
pacib.  by  a  strip  of  land  thiity  feet  wide  and  running  from 

east  to  west  240  feet,  and  thence  north  aljout  100  feet.  All  of  tiie 
property  once  belonged  to  one  James  Wadsworth,  who,  in  1844, 
granted  and  conveyed  a  portion  of  it  to  defendant's  predecessor 
for  the  purpose  of  a  passenger  and  freigiit  depot,  and  for  no  other 
pnrpoae,  and  described  tins  above-mentioned  strip  of  land  thirty 
feet  wide  as  thereby  dedicated  for  the  purpose  of  a  public  streeL 

Some  question  was  made  upon  tiie  trial  as  to  the  right  of  de- 
fendant to  use,  for  the  purpose  of  a  raih-oad  resta'irant,  any  portion 
of  the  property  thns  conveyed ;  but  the  court  held,  under  the 
other  facts  in  tlie  case,  that  defendant's  right  to  so  use  it  could  not 
now  be  successfully  questioned,  and  there  lias  been  no  appeal  from 
such  decision  and  so  the  question  may  be  dismissed  from  our  con- 
sidei-ation. 

In  1850,  James  Wadsworth  died,  leaving  a  will  by  wliicL  lie  de- 
vised to  his  children  the  land  not  theretofore  conveyed  to  defend- 
ant's predecessor,  being  one-quarter  to  each  of  his  two  sons,  and 
one^uarter  to  his  executors,  in  trust  for  his  daughter  Elizabeth 
Wadsworth,  and  one-qnartcr  to  his  executors  in  trust  for  his 
grandson  Martin  Brimmer,  Jr. 

So  far  as  the  evidence  in  the  case  shows  this  left  the  title,  not 
only  to  the  premises  leased  by  the  plaintiff,  but  also  to  the  tliirty 
feet  strip  of  land  already  mentioned,  in  the  devisees  under  the 
will  of  James  Wadsworth,  because  of  the  lack  of  any  acceptance 
of  the  dedication  on  the  part  of  the  public  autliorities,  whicli  will 
be  again  referred  to.  In  1853  partition  of  tlie  lands  now  leased  by 
plaintiff  (which  lands  excluded  the  thirty  feet  strip)  was  made,  by 
which  one-half  of  such  premises  was  conveyed  to  the  trnstees  of 
Martin  Brimmer,  Jr.,  ana  one-half  to  Charles  James  Murray,  who 


^d  by  Google 


FENCE — NUISANCE.  S85 

was  then  an  infant.  Botli  conveyances  bounded  the  prcmiecs 
by  tlie  line  of  tbis  tliirty  feet  strip,  called  therein  an  "alley."  In 
1857  the  trneteeB  of  Crimmer  and  the  genei-al  guardian  of  Murray 
conveyed  by  qnitclaim  deeds  to  defendant's  predecessor  an  nndi- 
vided  one-half  part  of  that  portion  of  the  strip  in  question,  being 
.twenty  feet  wide  and  adjoining  the  lands  of  the  said  predecessor 
theretofore  conveyed  to  it  by  James  Wadsworth  in  his  life-time. 
This  left  the  title  to  the  remaining  ten  feet  of  such  strip  unaf- 
fected, while  an  undivided  half  of  the  intei'CGt  in  the  twenty  feet 
just  mentioned  remained  in  the  other  devisees  under  the  will  of 
Wadsworth,  assuming  that  Brimmer's  and  Murray's  trustees  and 
guardian  held  title  to  one  quarter  each  and  that  it  was  conveyed  to 
the  defendant's  predecessor  by  the  deeds  above  mentioned, 

These  deeds  of  the  twenty  feet  contained  a  provision  permitting 
the  constrnction  of  a  bnilding  thereon  at  the  discretion  of  the 
railroad  company  by  a  wall  along  the  line  bounding  on  the  remain- 
ing ten  feet,  and  with  roof  projecting  over  such  ten  feet  strip  a 
reasonable  width  for  eaves-trough  and  water  conductor,  such  pro- 
jection to  be  on  sufferance  of  the  grantors,  provided  they  should 
want  at  any  time  to  build  on  the  land. 

Both  these  deeds  also  contained  the  following  language :  "  This 
conveyance  is  upon  the  express  condition  that  the  said  railroad 
company,  their  successors  or  assigns,  shall  at  all  times  maintain  an 
opening  into  the  premises  hereby  conveyed  opposite  to  the  Ex- 
change Hotel,  so  called "  (the  premises  now  lensed  by  plaintifE), 
"adjacent  to  the  premises  hereby  conveyed,  for  the  convenient  ac- 
cess of  passengers  and  their  baggage  to  and  from  said  premises 
hereby  conveyed,  which  opening  shall  at  no  time  be  dosea  against 
Buch  passengers  and  their  baggage,  subject,  however,  to  all  proper 
regulations  of  police  and  railroad  discipline  of  persons  on  the  said 
premises." 

Subsequent  to  the  execution  of  these  deeds,  and  in  May,  1857, 
defendant's  predecessor  executed  quitclaim  deeds  to  the  trustees 
of  Brimmer  above  mentioned,  and  to  the  general  guardian  of  Mur- 
ray, of  an  undivided  half  of  t  he  remaining  ten  feet  of  said  "  al- 
ley," although  it  nowhere  appears  that  euch  predecessor  had  any 
title  to  such  ten  feet.  By  mesne  conveyances,  in  or  about  Septem- 
ber, 1873,  Edward  R,  Hammatt  having  become  trustee  for  Brim- 
mer, Jr.,  as  such  trustee  became,  ana  has  ever  since  been,  ttie 
owner  of  the  premises  now  leased  to  plaintiff,  which  premises  are 
bounded  by,  and  do  not  include  in  tlie  conveyance  or  lease,  any 
portion  of  the  strip  of  land  heretofore  spoken  of,  althotigli  plain- 
tiff claims  a  right  of  way  over  the  thirty  feet  strip  dedicated  for  a 
public  street  by  said  James  Wadsworth  in  his  deed  of  January, 
1341. 

Soon  after  the  execution  of  the  deeds  to  the  railroad  company 
ftbove  meotioned,  the  company  laid  its  tracks  along  this  twentj 


^d  by  Google 


686    AVERT  V.    KEW  YOKE  CENTRAL,  ETC.,  K.  00. 

feet  of  tlie  thirty  feet  strip  which  lies  south  of  the  preinisefl  leased 
b^  plaintiff,  and  has  ever  since  nsed  the  tracks  for  running  its  cars 
into  and  out  of  its  depot  at  the  west  end  of  such  Btrip  It  appears 
also  that  there  has  been  since  the  convejance  hj  Wadsworth  in 
1844,  and  npon  the  premises  retained  by  him,  and  bounded  by  this 
thirty  feet  etrip,  a  hotel  which  has  been  accessible  from  defend- 
ant's depot  across  its  ti'acka,  and  which  has  depended  lately  for 
its  patronage  and  castom  upon  the  passengers  arriving  at  and  de- 
parting from  such  depot  of  defendant's  and  ap  to  Angnst,  1S81, 
this  thirty-feet  strip  excepting  as  twenty  feet  of  it  were  nsed  by 
defendant's  tracks  as  above  stated  has  been  open  and  nsed  by  the 
occnpants  of  the  hotel  and  by  travellers  as  above  described  and  by 
the  pablic.  In  M:iy,  1887,  the  said  Hammatt,  as  trnstee  of  Bi-im- 
mer,  leased  to  plaintiS  the  hotel  spoken  of  for  tJiree  years  at  the 
annna)  rent  of  $4,000  and  the  pluintiS  entered  into  possetsion 
tinder  such  lease,  and  has  been  and  is  now  carrying  on  such  hotel 
and  restaurant.  The  further  fact  was  proved  that  the  right  of 
way  across  this  thirty-feet  strip  is  beneficial  to  the  hotel  and  res- 
taurant, and  to  the  pJaintifTs  possession,  and  is  an  appurtenance 
thereto  of  great  value. 

In  August,  1881,  the  defendant  entered  npon  the  said  strip  or 
alley  and  built  a  high  and  substantial  fence  the  whole  lengtii  of 
the  strip,  and  on  the  edge  of  tiie  twenty  feet  bordering  on  the 
remaining  ten  feet  thereof,  and  such  fence  has  been  kept  closed 
against  the  plaintiff  and  all  others,  and  the  defendants  iiave  thus 
wholly  exchidcd  the  plaintiff,  his  servants,  the  guests  of  the  hotel, 
and  all  others  from  entering  npon  such  twenty  feet.  Tlie  fence 
is  thus  a  total  obstruction  in  the  way  of  any  passage  across  such 
twenty  feet  to  all  pereons  coming  from  the  depot  to  the  hotel,  or 
from  the  hotel  to  the  depot  who  might  otherwise  I'each  either 
place  by  travelling  over  this  twenty  feet,  and  in  this  way  such  ob- 
struction has  very  greatly  lessened  tlie  patronage  of  the  hotel,  and 
damaged  thereby  the  plaintiff  up  to  the  commencement  of  this 
action  in  the  sum  of  |300,  as  found  hv  the  trial  judga 

This  action  was  brought  to  enjoin  the  eontinuance  of  such 
fence  and  to  recover  damages  for  the  time  which  it  had  stood. 
The  complaint  contained  two  counts,  the  first  one  stating  the  facts 
of  the  conveyance  to  defendant's  predecessor  and  the  dedication 
of  the  strip  as  a  public  street,  and  that  the  parties  to  the  convey- 
ance agreed  mutually  that  the  strip  should  remain  and  be  a  pub- 
lic street,  and  that  it  was  necessary  for  the  proper  enjoyment  of 
the  hotel  and  restaurant  that  this  strip  should  remain  a  public 
street.  The  plaintiff  then  set  forth  the  erection  of  the  fence,  and 
thus,  as  he  said,  defendants  wrongfully  excluded  him  from  the 
public  street;  and  he  further  alleged  that  such  fence  was  a  nui- 

In  the  second  count  the  strip  was  called  an  "  alley"  or  pablic 

Digitized  by  Google 


FENCE— WCI8A1T0B.  68T 

highway,  and  the  plaintiff  claimed,  to  have  an  easement  or  right  of 
waj  or  accees  acroaa  or  to  the  twenty-feet  strip  in  qnestion.  The 
plaintiff  also  alleged  (evidently  with  reference  to  the  language  of 
the  deeds  to  the  railroad  company  in  ]857)  that  the  defeodant  had 
not  since  the  erection  of  the  fence  maintained  an  opening  into  that 
part  of  the  alley  appurtenant  to  tlie  sontherly  side  of  said  hotel 
for  the  convenient  access  of  passengei's  and  their  haggage  "  to  and 
from  the  alley  Or  public  highway  as  of  right  it  shonld  have  done 
and  was  bound  to  do,"  and  that  it  had  thereby  deprived  paa- 
sengere  and  their  baggage  of  con  venient  access  to  said  alley  or  pnb- 
tic  highway,  and  thns  prevented  such  passengers  and  their  baggage 
from  entering  9uid  hotel  at  all  across  or  by  means  of  said  alley  or 
public  highway.  The  plaintiff  then  alleged  the  tracks  and  the 
fence  to  be  a  nuisance,  and  asked  for  an  injunction  restraining  de- 
fendant from  continuing  to  permit  its  tracks  to  remain  in  the  pub- 
lic street  or  alley,  or  from  continuing  the  fence,  etc.  The  answer 
of  defendants  was  substantially  a  genenil  denial. 

When  the  ease  came  on  for  trial,  the  counsel  for  defendant 
moved  to  dismiss  the  complaint,  because,  so  far  as  the  complaint 
therein  showed,  the  plaintiff  was  an  entire  stranger  to  the  whole 
matter,  as  the  only  allegation  on  that  subject  was  that  he  was  in 
possession  of  tlie  premises  and  he  did  not  appear  as  party  or 
privy  to  any  covenant  or  provision  whatever.  The  plaintiff  then 
moved  to  amend  by,  in  effect,  setting  up  his  lease  from  the  owner, 
to  which  defendant's  counsel  objected  that  the  amendment  was  not 
such  an  one  as  could  be  made  upon  the  trial,  and  that  it  set  up  a 
new  and  distinct  eauBe  of  action,  and  one  which  was  on  contract 
or  covenant,  and  which  could  not  be  joined  with  an  action  for 
damages  for  a  nuisance.  The  objections  were  overruled,  and  the 
trial  proceeded.  The  facts,  heretofore  stated,  were  fonnd  by  the 
judge  who  tried  the  cause,  without  a  jnry,  and  a  judgment  was  de- 
creed enjoining  the  continuance  of  the  fence  and  providing  for 
its  removal,  and  for  the  recovery  of  the  damages  sustained  by 
plaintiff,  being  the  snin  of  $300.  The  Genei-al  Term  affirmed 
the  judgment,  and  the  defendants  appealed  to  this  court. 

We  think  the  amendment  allowed  by  the  court  was  a  proper 
exercise  of  discretion.  It  was  in  no  sense  the  introduction  of  a 
new  cause  of  action.  Upon  defendant's  own  objec-  Attowisoi  op 
tion,  and  assuming  it  to  be  well  founded,  the  cause  of  peopm. 
action  in  the  complaint  was  defectively  stated,  because  it  showed 
no  right  or  interest  on  the  part  of  plaintiff  to  take  advantage  of 
the  nghts,  if  there  were  any,  of  the  owner  of  the  premises  known 
as  the  notel  property.  For  the  purpose  of  obviating  tliat  objec- 
tion and  to  show  that  the  plaintiff  had  the  same  rights  in  tlie  prop- 
erty, 80  far  as  to  take  advantage  of  the  covenants  in  regard  to  it 
which  its  owner  had,  the  allegation  of  the  lease  was  added  to  ttie- 
otber  allegations  in  tlie  complaint. 


^d  by  Google 


688  AVEEY  V.   KEW   YORK   CENTRAL,  ETC.,   R.    CO. 

The  defendant's  counsel  now  claims  that  it  appears,  from  the 
uncoiitradicted  facts,  tliat  tliere  never  was  any  public  street  over 
so  fOBLio  <"■  on  'I'is  lliirty-feet  strip,  becanse  there  never  was  any 
S?^3i2i'?o  acceptance  of  the  dedication  on  the  part  of  the  city 
"■"■  authorities,  or  any  control  over  it  ever  assnmed  by 

them.  He  further  argnes  tliat  the  plaintiff  under  tlie  pleadings 
is  not  entitled  to  any  relief,  for  the  reason  that  his  rights  are 
therein  baaed  upon  the  alleged  fact  of  the  strip  being  a  pnblic 
street,  and  when  that  fact  fails  his  right*  fail  with  it.  Tiie  con- 
ceesiAD  that  there  was  no  public  street  must  be  made,  and  for  tiie 
reasons  stated.  It  must  also  be  conceded  that  the  plaintiff  do^  in 
his  complaint  allege,  especially  in  his  firet  connt,  that  this  strip  is 
a  public  street  or  highway,  and  he  alleges  tlie  fence  to  be  a  nui- 
sance for  that  reason.  In  the  second  connt,  however,  we  think 
there  are  facta  enough  alleged,  especially  when  the  question  does 
not  appear  to  have  been  very  clearly  raised  before,  upon  wliich  can 
be  spelled  out  the  assertion  of  a  right  on  the  part  of  the  plaintiff 
to  have  access  to,  and  to  some  extent  a  right  of  way  over  this 
strip,  even  if  it  be  not  to  ail  intents  and  pnrpoaea  a  public  high- 
way. In  the  second  connt  the  plaintiff  speaKs  of  there  being  as 
appurtenant  to  the  hotel  an  easement  which  he  describes,  it  is  true, 
by  metes  and  bounds,  but  wiiicb  a  reading  of  tiie  whole  count  en- 
ables  one  to  say  is  t!ie  allegation  of  an  easement  consisting  of  a 
right  of  way  over  or  access  to  some  portion  of  this  strip  of  land 
for  passengers  and  their  baggage,  and  that  the  defendants  having 
erected  the  fence  had  left  no  opening  therein  at  certain  places 
which  were  appurtenant  to  the  southerly  side  of  said  hotel,  wbicb 
of  right  the  defendant  sbotild  have  done. 

This  is  clearly  a  claim  founded,  not. upon  the  fact  that  this  strip 
was  a  highway  and  that  as  sucii  any obstructiou  thereof 
rLAiKTVF'i  was  illegal,  but  it  is  a  claim  founded  upon  a  totally 
"■""■  different  basis— a  claim  of  a  right  to  an  opening  into 

the  alley  appurtenant  to  the  southerly  side  of  the  hotel,  and  for 
the  convenient  access  of  passengei's  and  their  baggage;  and  it  was 
a  statement  that,  by  erecting  this  fence,  the  defendant  has  violated 
that  right,  and  has  theraby  prevented  such  passengers  and  their 
baggage  from  entering  said  hotel,  to  plaintiff's  damage.  AH  that 
was  laclciiig  in  this  language  to  show  exactly  what  fact  the  claim 
was  foundM  upon,  was  the  statement  that  the  right  of  way  was 
reserved  by  the  deeds  of  Wadsworth,  as  trustee  and  guardian,  ex- 
ecuted in  1857.  It  miglit  have  been  ground  for  a  motion  to  make 
the  complaint  more  definite  and  certain  ;  but  the  claim  is  ob- 
viously not  based  upon  rights  arising  solely  from  the  assumption 
that  the  strip  of  land  was,  at  all  events,  a  public  highway.  If  the 
plaintiff  is,  tlierefore,  entitled  to  any  relief,  on  this  branch  of  the 
«ase  by  virtue  of  the  reservation  in  those  deeds,  and  which  be 
could  obtain  on  no  other  ground,  I  think  it  should  be  granted  him 


^dbyGoOglc 


FEHCE — NUISANCE.  o8» 

now,  instead  of  reserving  the  judgment  becaQse  the  plaintifTs- 
right  to  relief  Was  not  clearly  and  accnrately  stated,  the  result  of 
whicli  would  be  an  application  to  amend  the  complaint  and  then 
going  to  trial,  and  thus  incurring  great  and,  in  tliie  case,  nseless 
expense. 

By  the  failnre  to  accept  the  dedication,  the  thirty  feet  in  ques- 
tion remained  the  property  of  Wadsworth,  and  de- 
Bcended  to  his  devisees  at  his  death.  By  Che  deeds  of  iBsi-iuaHn 
the  trustees  of  Brimmer  and  the  guardian  of  MuiTaj, 
all  the  estate  of  Brimmer  and  Murray  in  the  twenty  feet  of  the 
strip  in  qaestion  was  conveyed  to  the  railroad  company.  Snch  in- 
terest was  said  to  be  the  equal  undivided  one-half  part  of  soch  por- 
tion. But  whatever  it  was,  up  to  that  amount,  such  estate  was 
conveyed  to  the  company.  The  title  of  Murray  to  about  one-half 
of  the  property  upon  whidi  the  Jiotel  stands,  and  which  was 
bounded  upon  the  said  strip,  was  subsequently  conveyed  to  the 
trustee  of  Brimmer,  who  is  the  lessor  of  tha  plaintiff.  Wliatever 
rights,  therefore,  which  the  other  devisees  under  tlie  will  of 
James  Wadsworth  may  have  in  this  twenty  feet  of  the  original 
thirty-feet  strip,  as  tenants  in  common  witn  the  company,  about 
which  we  say  nothing,  as  nothing  is  required  to  be  said  in  this 
ease,  it  is  clear  that  the  present  plaintifi,  wjio  claims  as  lessee  of 
the  lessor  who  executed  tuese  deeds  of  1857  to  the  railroad  com- 
pany, cannot  raise  the  question  of  their  invalidity  to  convey  the 
interest  of  the  cestui  mie  trust  and  infant  Brimmer  and  Murray. 
They  must  be  regarded  as  valid  deeds  and  as  conveying  all  Che  in- 
terests of  Brimmer  and  Murray  in  this  twenty  feet  to  the  railroad 
company,  and  such  grantors  must  be  regarded  as  thereby  abandon- 
ing all  claim  to  the  same  as  a  public  street  or  highway.  They  are 
□o  longer  tenants  in  common  with  any  one. 

The  sole  remaining  question,  tlierefore,  is :  What  rights,  if  any, 
were  reserved  to  Brimmer  and  Murray  by  those  deeds  of  1857? 
The  grantors,  in  those  deeds,  contemplated  the  possible,  if  not 
probable,  erection  of  a  buildmg  over  this  twenty  feet,  showing 
thereby  a  clear  intent  to  abandon  all  pretence  of  a  claim  for  its 
use  as  a  public  street  or  highway,  even  if  such  abandonment  were 
not  otherwise  conclusively  shown  by  the  execntion  of  the  deeds. 

But  the  deeds  contained,  in  addition,  language  providing  for  an 
opening  and  access  to  this  twenty  feet,  which  language  has  al- 
ready been  quoted,  and  the  plaintiff  claims  that  if  the  deeds  are 
valid  this  language,  under  all  the  circumstances,  must  be  constrned 
to  be  a  covenant  and  the  burden  thereof  as  running  with  the  land 
conveyed,  and  in  favor  of  those  having  a  legal  interest  in  the  hotel 
lands,  and  that  such  covenant  makes  the  right  of  access  and  transit  to 
and  across  this  twenty  feet  a  right  or  easement  appurtenant  to  the 
hotel  premises.     On  the  other  Land,  the  defendants  claim  that  the 


^d  by  Google 


-590  AVEET  V.    NEW  YORK   CENTRAL,   ETC.,    E.    CO. 

language  used  makes  a  condition  eubseqnent,  which  cannot  be 
taken  advantage  of  by  any  bnt  the  grantor  and  his  heirs. 

Wfl  incline  to  the  conatniction  contended  for  by  the  plaintiff. 
The  fact  that  the  deed  uses  the  language  "npon  condition,"  when 
referring  to  the  conveyance  by  the  gratitore,  is  not  conclueive  that 
the  intention  wae  to  create  an  estate  strictly  upon  condition.  The 
question  is  aiwaye  what  was  the  intention  of  the  parties,  and 
while  3Qch  intention  is  to  be  gathered  from  the  langnage  need,  yet 
its  construction  may  frequently  be  aided  by  reference  to  all  the 
-circnmBtanceB  surroanding  the  parties  at  the  time  of  the  execution 
of  tlie  deeds,  becanse  the  court  is  thus  enabled  to  be  placed  exactly 
■  in  their  eitnation,  and  to  view  the  case  in  the  light  of  such  enr- 
3x>unding8. 

From  the  language  of  the  first  deed  from  Wadsworth  to  de- 
fendant's predecessor,  in  which  the  land  is  conveyed  to  it  for  tlie 
purpose  of  a  passenger  and  freight  depot  only,  taken  in  connec- 
tion with  the  fact  of  the  existence  of  a  hotel  and  restaurant  at  that 
time  on  tlie  land  retained  by  him,  and  looking  at  the  farther  fact 
-that  from  1844  to  1857  this  strip  in  question  had  been  kept  open, 
and  full  access  to  the  depot  and  the  hotel  on  Wadsworth's  prop- 
erty was  had  over  this  strip  by  passengers,  gaests,  and  the  public 
in  general,  and  that  the  patronage  of  the  hotel  was  largely  depend- 
ent upon  the  travelling  public  coming  to  and  departing  from  said 
depot — all  tliese  facts  would  lead  one  to  the  unhesitating  concln- 
sion  that  the  language  used  in  those  deeds  in  1857  was  for  the  beo- 
efit  of  the  hotel  property,  and  was  not  meant  to  create  a  condition 
.eubseqnent,  whicn  courts  regard  with  no  very  friendly  eye,  apon 
a  failure  to  perform  which  the  estate  was  to  be  forfeited,  and 
which  none  but  the  grantor  or  his  heirs  could  take  advantage  of. 
It  was  intended  to  be  an  agreement  or  covenant  between  the  par- 
ties running  with  the  land,  providing  for  this  access  or  right  of 
way  so  as  to  continue  or  enhance  the  value  of  the  hotel  property 
by  providing  for  such  easy  access  to  it  from  defendant's  depot  for 
passengers  and  baggage.  (See  Stanley  v.  Colt,  5  Wall.  119 ; 
-Countryman  v.  Degk,  13  Abb.  N.  C.  110.) 

Courts  frequently,  in  arriving  at  the  meaning  of  the  words  in 
a  written  instrument,  construe  that  which  is  in  form  a  condition, 
-a  breach  of  which  forfeits  the  whole  estate,  into  a  covenant  on 
which  only  the  actual  damage  can  be  recovered,  8ee  Hilliard  on 
Eeal  Piopei-ty,  4th  ed.,  page  526,  §  13 ;  2  Washburn  on  Real 
Property,  3d  ed.,  chap.  14,  subd.  3,  page  3,  et  aeq.  It  is  asserted, 
however,  that  if  this  language  be  treated  as  a  covenant,  still  the 
plaintiS  cannot  take  advantage  of  it,  as  he  is  not  a  party  or  privy' 
to  it. 

The  grantors  in  these  deeds  were  also  the  owners  of  the  hotel 
property,  and  the  easement  provided  for  in  the  deeds  for  the  tran- 
sit of  passengers  and  their  baggage  over  this  twenty  feet  mnst  be 


^d  by  Google 


FENCE — NtriSAKOE.  691 

coDstrned  as  reeerved,  not  for  the  benefit  of  such  passengere  in  any 
sense,  bnt  as  an  easement  reserved  for  the  benefit  and  in  favor  of 
the  grantora  being  owners  of  the  remaining  hotel  property,  and  as 
appurtenant  to  it,  and  fairly  necessary  for  its  full  and  proper  en- 
joyment. It,  therefore,  rnns  with  the  hotel  property  and  in  favor 
of  its  owner  or  leasee,  the  latter  of  whom  has  such  an  interest  in 
its  existence  as  courts  will  recognize  and  protect.- 

As  the  rights  of  the  plaintiff  are,  in  our  view,  dependent  upon 
the  deeds  of  1857,  the  judgment  must  be  in  accordance  with  their 
terms.  The  courts  below  erred  in  not  limiting  the  relief  granted 
to  plaintiff  by  the  language  of  such  deeds.  As  the  judgment 
provided  for  a  full  and  entire  destrnction  of  the  fence  in  question, 
it  must  be  reversed  and  a  new  trial  ordered,  or  else  it  must  be 
modified  so  as  to  provide  for  an  opening  into  the  strip  throngh 
that  or  anv  other  fence  or  obstruction,  of  a  size  reasonable,  proper, 
and  fit,  which  shall  be  opposite  to  the  hotel  and  adjacent  to  the 
premises  conveyed  by  the  deeds,  and  large  enough  for  the  conven- 
ient access  of  passengers  ^nd  their  baggage  to  and  from  the  said 
strip,  which  opening  must  at  no  time  be  closed  against  snch  pas- 
sengers and  their  baggage,  and  which  access  must  be  subject  to  all 
proper  regulations  of  police  and  railroad  discipline  of  persona  on 
the  said  premises. 

We  shall  order  a  reversal  of  the  judgment,  although  a  modifica- 
tion as  above  stated  could  be  easily  provided  for,  nnless  the  plain- 

.  tiff  consents  to  waive  the  damages  ne  recovered  in  the  courts  telow. 
We  do  this  because  we  are  greatly  dissatisfied  with  the  evidence 
npon  which  the  recoverv  as  to  the  damages  was  based.  It  was 
exceedinglv  vague  and  loose,  if  not  to  some  extent  gaees  work. 
It  seems,  also,  to  have  been  made  to  some  extent  at  least  opon  a 
mietaben  view  aa  to  the  defendant's  rights  and  liabilities  under  its 
deeds  from  Wadsworth  to  the  trustee  and  guardian.  Evidence 
seems,  also,  to  have  been  offered  and  received  upon  the  assumption 
of  the  right  of  the  plaintiff  to  a  totally  unobstructed  access  to  and 
transit  across  this  whole  thirty  feet  in  contreversy  at  all  times, 
ignoring  the  limitations  of  the  rights  as  contained  in  the  deeds  of 
1857  to  the  railroad  company.  Some  portion  of  the  damages  may 
also  have  been  awarded  on  account  of  tue  restaurant  in  defendant's 
depot  and  its  consequent  effect  upon  the  patronage  of  plaintiff's 

'  reetaurant,  and  upon  the  rental  value  of  plaintiff's  hotel,  which  the 
learned  judge  thought,  after  all,  was  the  criteiion  for  the  damages 
sustained  by  plaintiff. 

Under  these  circumstances  we  are  disposed  to  order  a  new  trial 
for  the  errors  as  to  the  general  rights  of  the  parties  contained  in 
the  judgment  appealed  from,  so  tliat  upon  a  new  trial,  with  those 
rights  plainly  denned,  the  evidence  on  the  subject  of  damages  may 
be  more  direct  and  confined  within  smaller  limits  than  it  was  on 
the  trial.     This  reversal,  however,  may  be  avoided  in  the  discretioD^ 


^d  by  Google 


693  DENVEB  AND  BIO  OBANDE  B.  V.  HABBI8. 

of  the  plaintifi  W  liis  conaenting  to  waive  the  damages.  If  the 
plaintiff  choose,  he  may  consent  to  waive  and  remit  hie  I'ecovery 
for  the  past  damages  which  he  alleges  he  has  sustaiaed,  and,  in 
that  case,  we  will  then  modify  and  affirm  the  judgment  as  modi- 
fied in  accordance  with  this  opinion,  and  after  striking  oat  tlie 
amount  recovered  for  damages. 

Tlie  order  will,  therefore,  be  that  the  judgment  of  the  court 
below  is  reversed,  and  a  new  trial  granted,  unless  plaintiff  etipa- 
latea  to  waive  the  damages  contained  in  ench  judgment,  in  which 
case  the  judgment  will  be  modi&edas  already  stated  in  this  opinion, 
and,  as  modified,  affirmed  without  coetB  to  either  party  in  this 
court. 

Alt  concur. 

Ordered  aocordingly. 


DRirvBB  AHD  Rio  G^bikdb  B. 


(188  U.  8.  Bt^nmt  Oovrt  Beportt,  097.) 

If  a  claimaitt  of  r«sl  estftta,  out  of  posaestion,  reaorte  to  force  and  violence 
ajnounting  to  a  breach  of  the  peace  to  obtain  poeaeuion  from  another  claim- 
ant who  is  in  peaceable  poseeMion,  and  peraonal  injury  ariBss  thereupon  to 
the  latter,  tue  part;  usins  auch  force  and  violence  ia  liable  in  damaffea  for 
the  injur;  without  regard  to  the  legal  title,  or  to  the  right  of  poesestioo. 

Iron  Mountain  &  Helena  R.  o.  Johnaon,  119  U.  8.  608,  affirmed  and  ap- 
plied. 

A.  corporation  ia  liable  for  euUiter  torts  committed  by  its  serranU  and 
ageota  done  by  its  authority,  whether  express  or  Implied. 

In  trespass  on  the  case  to  recover  for  injuries  caused  by  gunshot  wounds 
inflicted  oy  defendant's  servants,  evidencs  of  the  loss  bt  power  to  have  off- 
spring, resulting  directly  and  prozimately  from  the  nature  of  tbe  wound, 
rosy  be  received  and  considered  by  the  jury,  although  the  declaration  does 
not  specify  such  loss  as  one  of  the  results  of  the  wound.  , 

*  In  an  action  of  trespass  on  the  case  against  a  corporation  to  recover  dam- 
ages for  injuries  inflicted  by  its  servants  in  a  forcible  and  violent  aeizure  of 
a  railroad,  punitive  damages,  within  the  sum  claimed  in  the  declaration, 
may  be  awarded  by  the  jury,  if  it  appears  to  their  satisfaction  that  the  de- 
fendant's officers  and  servants,  in  the  illegal  assault  complained  of,  em- 
ployed the  force  with  biad  intent,  and  in  pursuance  of  an  unlawful  purpoae, 
wantonly  disturbing  the  peace  of  the  community  and  endangering  life. 

The  Atchison,  Topeka  &  Baota  F€  R.  Co.  was  in  peaceable  possession  of  a 
railroad  from  Alamosa  to  Pueblo,  and  while  so  in  possession  the  Denver  & 
Bio  Qrande  R.  Co.,  by  an  armed  force  of  several  hundred  men,  acting  as  its 
agents  and  employees,  and  under  it*  vice-president  and  asustant  general 


^d  by  Google 


ASSAtTLT  AND  BATTEET— LIAblLlTT  FOB.  B9S 

nuoajj^r,  attacked  with  deadly  weapons  the  agents  and  employees  of  the 
AtcbisoD,  Topeka  ft  Santa  F6  R  Co.  haTing  charge  of  the  railroad,  and 
forcibly  drove  them  from  the  tome,  and  took  forcible  possession  thereof. 
There  was  a  demoDBtratioa  of  armed  mea''all  along  the  line  of  the  railroad 
seized,  and  irhile  this  was  being  done,  and  the  seizure  was  being  made,  the 
plaintiO,  an  employee  of  the  Atchison,  Topeka  ft  Santa  F6  R.  Co.,  while  on 
the  track  of  the  road,  in  the  line  of  his  employment,  was  fired  upon  by  me» 
as  he  was  passing,  and  sariouslj  wounded  and  injured.  Immediately  upon 
the  seizure  ot  the  railroiid  as  aforesaid,  the  Denver  ft  Rio  Grande  Co.  ac- 
cepted it,  and  entered  into  possession  and  commenced  and  for  a  time  con- 
tinued to  use  and  operate  it  as  its  own.  The  plaintiff  brought  this  suit  to 
recover  damages  for  his  injuries.  Htid,  that  the  Denver  ft  Rio  Grande  Co. 
was  liable  in  tort  for  the  acta  of  its  agents,  and  that  the  plaintiff  could  re- 
r  damages  for  the  injuries  received,  and  punitive  damages  under  the 


EsBOB  to  the  enpreme  conrt  of  the  Territory  of  Ney  Hexioo. 

TliiB  action  was  bi'ODght  by  Jamea  Harns,  the  defendant  in 
eiTOP,  against  the  Denver  &  Kio  Grande  R.  Co.,  a  corporation  of 
the  State  of  Coloi-ado,  to  recover  damages  for  injuriee  which  he 
alleges,  were  snstained  by  liim,  in  liis  person,  by  reason  of  an  illegal 
and  wrongful  assanlt  made  by  that  company,  acting  by  its  servaots 
and  agents.  The  plea  was  not  guilty.  I'liere  was  a  verdict  and 
jndgment  in  favor  of  the  plaintiff  for  nine  tbonsand  dollars.  The 
judgment  was  affirmed  in  the  supreme  conrt  of  the  Territory,  and 
lias  been  brought  here  for  review. 

The  defendant  introduced  no  evidence,  although  its  officers  were 
the  chief  actors  on  the  occasion  when  the  plaintiff  was  injured. 
The  case  made  by  the  latter  and  other  witnesses  testifying  in  his 
behalf,  is  stated  by  the  supreme  court  of  the  Ternitory,  in  the  fol- 
lowing extract  from  its  opinion  ; 

"TTie  record  discloses  the  fact  that  there  was  evidence  on  the 
trial  in  the  lower  court  to  the  effect  that  about  the  10th  or  12th  of 
June,  1879,  the  Atcliiaon,  Topeka  &  Santa  ¥6  R.  Co.  was  in  peace- 
able possession,  by  its  agents  and  employees,  of  a  certain  railroad 
in  the  State  of  Oolorado,  running  from  Alamosa  to  the  city  of 
Fneblo,  in  that  State ;  that  at  or  abont  that  date,  and  while  the 
Atchison,  Topeka  &  Santa  F^  K.  Co,  was  so  in  possession  of  said 
railroad,  the  plaintiff  in  error,  the  Denver  &  Rio  Grande  R.  Co., 
by  an  armed  force  of  several  hnndred  men,  acting  as  its  agents 
and  employees,  and  nndei-  its  vice-president  and  assistant  general 
manager,  attacked  with  deadly  weapons  the  agentA  and  employees  of 
said  Atciiison,  Topeka  &  Santa  ¥6  R.  Co.  naving  charge  of  said 
railroad,  and  forcibly  drove  them  from  the  same,  and  took  forcible 
possession  thereof ;  that  there  was  a  demonstration  of  armed  men 
all  along  the  line  of  the  railroad  seized,  and  while  this  was  being 
done,  and  the  seizure  was  being  made,  the  defendant  in  error,  who 
was  nn  employee  of  the  Atchison,  Topeka  &  Santa  F^  R.  Co.,  on 
said  line  of  railroad,  and  while  on  the  track  of  the  road,  and  on  a 
hand-car  thereon,  in  the  line  of  his  employment,  was  fired  upon  by 
81A.AE.  R.  Caa.-88 


^d  by  Google 


694  UENVKk   AVD   RIO   GRANDE   K.    V.    HAHKIS. 

inuu  aa  lie  was  paesing,  aud  senuu&I;  .wounded  and  inJDFed;  that 
iiiiiiied lately  npou  the  Bciznre  of  the  railroad  as  aforesaid  the  plain- 
tiff in  error  accepted  it,  and  at  once  entered  into  poeeeesion  thereof, 
«ud  commenced  and  for  a  time  continued  to  ose  and  operate  the 
same  as  its  own. 

Charles  M.  Da  Costa  for  plaintiff  in  error. 

John  M.  Waldron  and  Edward  O.  WoLcoU  also  filed  a  brief  for 
plaintiff  in  error, 

John  H.  Kna^>d  for  defendant  in  error. 

Haulan,  J. — One  of  the  propositions  advanced  b^  counsel  for 
the  company  is  this;  Tliat  it  appears  from  the  plaintiff's  case,  and 
ny  Ilia  evidence,  that  he  voluntarily  armed  liimseif,  and 
mcTuukT  jDiR-  taking  the  law  into  his  own  hands,  joined  an  illegal  as- 
SBLF-rBOTBc-  semhly  for  the  purpose,  if  necessary,  of  committing 
murder;  that,  in  the  conrse  of  the  riot  and  rout,  he 
received  a  wound  at  the  hands  of  those  whom  he  had  sought  by 
violence  to  destroy;  that,  under  ench  circumstances,  the  law  will 
not  permit  him  to  recover  for  an  alleged  assault,  but  conclusively 
preeomeehis  assent  thereto;  nor  will  the  law  permit  him  to  re- 
cover through  the  medium  and  by  the  aid  of  an  illegal  transaction, 
to  which  he  was  a  party,  and  whicli  constitutes  the  foundation  of 
his  case. 

Tlie  same  propOBition  was  stated  in  another  form  in  argument : 
Thai  the  plaintiff  engaged  voluntarily,  and  not  for  his  necessary 
self-defence,  in  a  physical  combat  with  others,  and  cannot,  upon 
principle,  maintain  a  civil  action  to  recover  damages  for  injuries 
received  in  snch  combat  at  the  hands  of  his  adversary,  unless  the 
latter  beat  him  excessively  or  unreasonably ;  this,  upon  tlie  ground 
that,  "  where  two  parties  participate  in  the  commission  of  a  crimi- 
nal act,  and  one  party  snners  damages  thereby,  he  is  not  entitled 
to  indemnity  or  contribution  from  tlie  other  party." 

These  propositions  have  no  application  in  the  present  case. 
The  evidence,  taken  together,  furnishes  no  basis  for  the  sugges. 
tion  tliat  the  plaintiff  voluntarily  joined  an  illegal  assembly  for  the 
purpose,  if  necessary,  of  committing  murder,  or  any  other  crrmi- 
nal  offence.  Nor  does  it  justify  the  assertion  that  ne  voluntarily 
engaged  in  a  pliysical  combat  with  others.  All  that  he  did  on  the 
occasion  of  his  being  injured  was  by  way  of  preparation  to  protect 
himself,  and  the  property  of  which  he  and  his  co-employees  were 
in  peaceable  possession,  against  organized  violence.  It  appears  in 
proof,  as  stated  by  the  court  below,  that  the  Atchison,  Topeka  & 
Santa  F4  R.  Co,  was  in  the  actual,  peaceable  possession  of  the  road 
wlien  the  other  company,  by  an  armed  body  of  men,  organized 
and  under  the  command  of  Its  chief  ofiiccrs,  proceeded,  in  a  violent 
manner,  to  drive  the  agents  and  eerrants  of  the  former  company 
from  the  posts  to  which  they  had  been  respectively  assigned.     It 


^dbvGoO^^lc 


ASSAULT   AKP  BATTKRY-:- LIABILITY   FOE.  696 

was  a  demonstration  of  force  and  violence,  tliat  dietnrbed  the  peace 
of  the  entiro  country  along  the  line  of  the  railway,  and  involved 
the  safety  and  lives  of  many  linnian  beings.  It  is  a  plam  case,  on 
the  proof,  of  a  corporation  taking  the  law  into  its  own  hands,  and 
bj  force,  and  the  comniission  of  a  breach  of  the  peace,  detor- 
mining  tJie  qnestion  of  the  right  to  the  poesession  of  a  public  higii- 
way  efltabiished  primarily  for  the  convenience  of  the  people.  The 
courts  of  the  Teri'itury  were  open  for  the  redi-ess  of  any  wrongs 
that  had  been,  or  were  being,  committed  against  the  defendant  by 
the  other  company.  If  an  appeal  to  the  law,  for  the  determination  ■ 
of  the  dispute  as  to  right  of  possession,  woald  have  involved  eoine 
delay,  that  was  no  reason  for  the  employment  of  force — least  of 
all,  for  the  nse  of  violent  means  under  circumstances  imperilling 
the  peace  of  the  community  and  the  lives  of  citizens.  To  snch 
delays  all — whether  individuals  or  corporations — most  submit,  what- 
ever may  be  the  temporary  inconvenience  resulting  therefrom. 
We  need  scarcely  suggest  that  this  duty,  in  a  peculiar  sense,  i-esta 
apon  corporations,  wJiich  keep  in  their  employment  large  bodies 
of  men,  whose  snpport  depends  upon  their  ready  obedience  of  the 
■orders  of  their  supei-ior  otHcers,  and  who,  being  organized  for  the 
Accomplishment  or  illegal  purposes,  mayendangerthe  public  peace, 
Si  well  as  the  personal  safety  and  the  property  of  others  besides 
those  immediately  concertied  in  their  movements. 

These  principles,  under  soinewiiat  different  circumstances,  were 
recognized  and  enforced  by  this  court  at  the  present  term.  One 
■Jonhson  was  in  the  actual,  peaceable  possession  of  eighteen  miles 
of  a  railroad  built  by  liim  for  a  rail  road,  company,  and  was  running 
his  own  locomotives  over  it.  He  claimed  tlie  right  to  hold  posses- 
«ion  until  he  was  paid  for  his  work.  But  the  company,  disputing 
his  right  to  possession,  ejected  him  by  force  and  violence.  He 
brought  his  action  of  forcible  entry  and  detainer.  This  conrt  said 
that  the  party  "so  using  force  and  acquiring  possession  may  have 
the  supenor  title,  or  may  have  the  better  right  to  the  pi-escTit  pos- 
■seesion,  bnt  the  policy  of  the  law  in  this  class  of  cases  is  to  prevent 
<diBtnrbances  of  the  public  peace,  to  foHiid  any  pereon  righting  him- 
self in  a  case  of  that  kind  by  his  own  hattd  ana  by  violence,  and  to 
require  that  the  party  M-ho  has  in  this  manner  obtained  possession 
^hnll  restore  it  to  tiie  party  from  whom  it  has  been  so  obtained  ; 
and  then,  when  tiie  parties  are  in  statu  quo,  or  in  the  same  posi- 
tion  as  they  were  before  the  use  of  violence,  the  party  out  of  pos- 
session must  resovt  to  legal  means  %o  obtain  his  possession,  as  he 
should  have  done  in  the  first  instance."  Iron  Mountain  &  Helena 
R.  V.  Johnson,  119  tJ.  S.  608,  611.  While  this  language  was  used 
in  a  case  arising  under  a  local  statute,  relating  to  actions  of  forci- 
ble entry  and  detainer,  it  is  not  without  force  in  cases  like  this, 
"where  the  peaceable  possession  of  property  is  disturbed  by  such 
tneans  as  constitute  a  breach  of  t)ic  peiice.     If,  in  the  employment 


^d  by  Google 


696  DENVER  AVD  KIO   OBAKDB  B.    V.    HABBI3. 

of  force  and  violence,  personal  injnry  arises  therefrom  to  the  per- 
son or  pereons  time  in  peaceable  posaession,  the  party  using  sach 
tmnecessary  force  and  violence  is  liable  in  damages,  witiiont  refer- 
ence to  the  question  of  legal  title  or  right  of  possession. 

Reference  was  made  in  argnment  to  those  portions  of  the  charge 
that  refer  to  the  liability  of  corporations  for  torts  committed  hy 
their  einplorees  and  servants. 

Id  Fliiladelphia,  Wilmington  and  Baltimore  Bailroad  v.  Quigley, 
21  How.  202,  ^itB  court  held  that  a  railroad  corpora- 
JJSSSicw'"  tion  was  responsible  for  tlie  pablication  by  tliem  of  a 
m-im"  ^  libel,  in  wliicli  the  capacity  and  skill  of  a  mechanic  and 
builder  of  depots,  bridges,  statiou-houses,  and  other 
strnotnres  for  railroad  companies,  were  falsely  and  raalicionsly 
disparaged  and  undervalued.  The  publication,  in  that  caBe,con- 
eisted  in  the  preservation,  in  the  permanent  form  of  a  book  for 
disCribntion  among  the  persons  belonging  to  the  corporation,  of  a 
report  made  by  a  committee  of  the  company's  board  of  directors^ 
in  relation  to  the  administration  and  dealings  of  the  plaintiff  as  a 
snpei-intendent  of  the  road.  The  conrt,  upon  a  foil  review  of  the- 
autliorities,  held  it  to  be  the  result  of  the  cases,  "  that  for  acts  don& 
by  the  agents  of  a  corporation  eitiier  in  contractu  or  in  delicto,  in 
the  course  of  its  bnsineBE,  and  of  their  employment,  the  corpora- 
tion is  responsible  as  an  individual  is  responsible  under  similar 
circnmstances."  In  State  v.  Morris  and  Essex  R.,  23  IS.  3. 
Law  (2  S^briskie)  369,  it  was  well  said  that,  "  if  a  corporation  has- 
itself  no  hands  with  which  to  strike,  it  may  employ  the  hands  of 
otliers ;  and  it  is  now  perfectly  wel  I  settled,  contrary  to  the  ancient 
authorities,  that  a  corporation  is  liable  civUiter  for  all  torts  com- 
mitted by  its  servants  or  agents  by  authority  of  the  corporation, 
express  or  implied.  ,  .  .  The  result  of  the  modern  cases  is, 
that  a  corporation  is  liable  ci-viliter  for  torts  committed  by  its  ser- 
vants or  agents  precisely  as  a  natural  person  ;  and  that  it  is  liable  as 
a  natural  person  for  the  acts  of  its  agents  done  by  its  authority, 
express,  or  implied,  thougii  there  be  neither  a  written  appointment 
nnder  seal  nor  a  vote  of  the  corporation  constitutine  the  agency  or 
authorizing  the  act,"  See,  also,  Salt  Lake  City  v.  Hollister,  118  TJ. 
S.  256,  260 ;  New  Jersey  Steamboat  Company  v.  Brockett,  121 U. 
S.  637  ;  National  Bank  v.  Graham,  100  U.  S.  699,  702.  The  in- 
structions given  to  the  jury  were  in  harmony  witli  these  salutary 
principles.  Whatever  may  De  said  of  some  expressions-  in  the 
chaise,  when  detached  from  their  context,  the  whole  charge  was  as^ 
favorable  to  the  defendant  as  it  was  entitled  to  demand  under  the 
evidence. 

One  of  the  oonseqaences  of  the  wonnd  received  by  the  plaintiff 
at  the  hands  of  the  defendant's  servants  was  the  loss  of  the  power 
to  have  offspring — a  loss  resulting  directly  and  proximately  from 
tlie  nature  of  ue  wonnd.     Evidence  of  this  fact  was,  therefore^ 


^d  by  Google 


ASSAULT  AND  BATTERY —LIABILITY  FOE.  697 

admisaible,  althongh  the  declaration  doea  not,  in  tenna,  specify 

encli   lose  aa   one  of  the  reenlta  of  the  wonnd.     The 

«onrt  very  properly  instrncted  the  jury  that  such  impo-  S^S^I 

teocy,  if  caused    by  the   defendant's  wrrng,  might  be  ^^^aSn^ 

-considered  in  eatimating  any  conipensatury  damages  to 

which   the  plaiutifi   might  oe  found,  under  all  the  evidence,  to  be 

■entitled.     Wade  v.  Leroy,  20  How.  34,  44. 

The  court  also  instructed  the  jnry  that  they  were  not  limited  to 
compensatory  damages,  bnt  could  give  punitive  or 
exemplary  damages,  if  it  was  found  tJiat  the  defendant  ^^^  ^ 
acted  with  bad, intent,  and  in  pursuance  of  an  unlawful  rm  duudb. 
purpose  to  forcibly  take  possession  the  railway  occupied 
by  tile  other  company,  and  in  so  doing  shot  the  plaintiff,  causing 
him  incurable  and  permanent  injury ;  always  bearing  in  mind 
that  the  total  damages  conld  not  exceed  the  sum  claimed  in  the 
declaration.  This  instrnction,  the  company  contends,  was  erro- 
neous. Its  counsel  argne  that,  while  a  master  may  be  accountable 
to  an  injured  party  to  the  extent  of  compensatory  damages  for  the 
wrongful  acts  of  his  servants — ^provided  the  servant  is  acting  with- 
in the  general  scope  of  his  employment  in  committing  the  injury 
— even  though  the  master  may  not  have  authorized  or  may  have 
even  forbidden  the  doing  of  the  particular  act  complained  of,  yet 
he  cannot  be  mulcted  in  exemplary  damages  unless  he  directed  the 
servant  to  commit  the  special  wrong  in  question  in  such  manner 
as  to  personally  identify  himself  with  tlie  servant  in  the  perpe- 
tration of  the  injuriouBact, 

The  right  of  the  jury  in  some  cases  to  award  exemplary  or  puni- 
tive damages  is  no  longer  an  open  question  in  this  court.  In  Day 
«.  Woodworth,  13  How.  863,  371,  which  was  an  action  of  trespass 
for  tearing  down  and  destroying  a  mill-dam,  this  court  said  that 
in  all  actions  of  trespass,  and  all  actions  on  the  case  for  torts,  "  a 
jury  may  inflict  what  are  called  exemplaiT,  pnnitive,  or  vindictive 
damugca,  upon  a  defendant,  having  in  view  the  enormity  of  his 
offence  rather  than  the  measure  of  compensation  to  the  plaintiff ;" 
and  that  such  exemplary  damages  were  allowable  "in  actions  of  tres- 
pass where  the  injury  has  been  wanton  or  malicious,  or  gross  and 
outrageous."  The  general  rnle  was  recognized  and  enforced  in 
Philadelphia,  Wilmington  and  Baltimore  E.  Co.  v.  Qnigley,  which, 
as  we  have  seen,  was  an  action  to  recover  damages  against  a 
corporation  for  a  libel ;  in  the  latter  case,  the  court  observing 
that  the  malice  spoken  of  in  the  rule  announced  in  Day  v.  Wood- 
worth  was  not  merely  the  doing  of  an  unlawful  or  injurious  act, 
but  the  act  complained  of  must  liave  been  conceived  "  in  the  spirit 
of  mischief  or  of  criminal  indifference  to  civil  obligations."  See 
also  Milwaukee  and  St.  Paul  R.  v.  Arms,  91  17.  S.  489, 492; 
Missouit  Pacific  K.  v.  Humes,  115  U.  S.  612,  621 ;  and  Ban-y  w. 
Edmunds,  IXQ  U.  S.  550,  562,  663. 


^d  by  Google 


B98  APPLICATION   OF  THE   PACIFIC   IJAILWAT   COMMISSIOB'. 

The  uuiirt,  in  the  present  case,  said  nothing  to  the  jurjr  that 
was  inconebtent  with  the  principle  as  Bettled  iu  these  cases.  The 
jury  were  expresslj  restricted  to  compensator;  damages,  nnleu 
they  found  from  Che  evidence  that  the  defendant  acted  with  bad 
intent  and  in  pursnance  of  an  anlawful  purpose  to  employ  force  to 
dispossess  the  other  company.  The  doctrine  of  pnnitive  damaees 
should  certainly  apply  in  a  case  like  this,  where  a  corpoi-atioD,  ny 
its  controlling  officers,  wantonly  disturbed  tlie  peace  of  the  com- 
munity, and  by  the  nee  of  violent  means  endangered  the  lives  of 
citizens  in  order  to  maintain  rights,  for  the  vindication  of  which, 
if  tliey  existed,  an  uppeal  shomd  have  been  made  to- the  judicial 
tribanals  of  the  country.  That  the  defendant,  within  the  meaning 
of  the  mle  holding  corporations  responsible  for  tlie  miscondnot  of 
their  servants  in  the  conrse  of  its  businesBand  of  their  employ- 
ment, directed  that  to  be  done  which  was  done,  it  is  not  to  be 
doubted  from  tlie  evidence,  the  whole  of  which  is  given  in  the  bill 
of  exceptions.  Its  governing  officers  were  in  the  actual  command 
and  directing  the  movements  of  what  one  of  the  witnesses  described 
as  the  "Denver and  Rio  Grande  forces,"  which  were  avowedly 
organized  for  the  purpose  of  driving  the  other  company  and  its 
employees,  by  force,  from  the  possession  of  tlie  road  m  question. 

Otlier  questions  were  diBcnssed  by  counsel,  but  they  do  not,  in 
our  judgment,  deserve  consideration.  Substantial  justice  has  been 
done  without  violating  any  principle  of  law  in  the  admisBioii  of 
evidence,  or  in  the  granting  or  refusing  of  instructions. 

The  judgment  is  affirmed. 


In  the  Matter  of  the  Afplioatioit  of  the  Faoifio  Railwat  Ocm- 
wsaios,  etc. 

(Adtatue  Oate,  U.  8.  €.  C,  JT.  D.  Cal^cmia.    AugiM,  89,  1887.) 

The  Pacific  Railwaj  CommisBion  ie  not  a  judicial  body,  and  postetMS  b& 
judicial  powers  under  the  set  of  CongresB  of  March  8,  1887,  creadDg  it,  and 
can  determine  no  rights  of  the  government,  or  of  the  corporatioDB  whose  af- 
fairs it  is  appoiptcd  to  investigate. 

Congresa  cannot  compel  the  production  of  private  books  and  papers  of  citi- 
zens for  its  inspection,  except  in  the  counie  of  judicial  proceedings,  or  in 
suits  instituted  for  that  purpose,  and  then  onl;  upon  STerments  that  its 
rights  in  aome  way  depend  upon  evidence  therein  contained. 

The  courts  are  open  to  the  United  States  as  to  private  parties  to  secure 
protection  for  their  legal  rights  and  interests,  hy  regular  proceedings. 

Congress  cannot  empower  a  commission  to  investigate  the  private  affairs, 
books,  and  papers  of  the  officers  and  employees  of  corporations  indebted  to 
the  government,  as  to  their  relations  to  other  companies  with  which  such 


^dbyGoOglc 


ADTHOEIXr  OF  PACIFIC   KAILWAT   COMMISSION.         599 

corporation*  have  had  dealings,  except  bo  far  as  such  officers  and  employees 
an  willinff  to  Bubmit  the  Mme  for  inspectioa;  and  the  inTestigation  of  ttw 
FKdflc  RfulwRj  Commimion  into  the  ufatn  of  officers  aad  emplOTees  of  the 
Pacific  Bulwa;  companiea  under  the  act  of  March  8, 1887,  is  limited  to  that 
extent. 

The  United  States  tasTs  no  interett  in  expenditures  of  the  Central  Pacific 
Railroad  .Uompanj  under  Touchers  which  have  not  been  charged  against  the 
government  in  the  accounts  between  them ;  and  the  Pacific  Railway  Commit- 
sioD  under  the  act  of  Congress  of  March  8, 1887,  has  no  power  to  investigat* 
such  expenditures  against  the  will  of  the  companjr  and  its  officers. 

The  judicial  power  of  the  United  States  is  limited  to  "  cases"  and  "  cod- 
troveraies"  enumerated  in  article  S,  \  1,  Const.,  aa  modified  by  the  elerentb 
amendment,  and  to  petitions  on  AoAsm  eorpvi,  and  cannot  t>e  extended  bj 
Congress ;  and  bj such  "cases"  and  "  controreniea"  are  meant  the  claims  of 
litiganta  brought  for  determination  b;  regular  judicial  proceedings  eatab- 
lisbed  bj  law  or  custom. 

The  Judicial  department  is  independent  of  the  legislative,  in  the  federal 
OoTemmeDt,  and  Congress  cannot  make  the  courts  ita  instruments  in  con- 
ducting mere  legislative  investigations. 

The  power  of  the  United  States  courts  to  authorise  the  taking  of  depod- 
tioDs  on  letters  rogatory  from  courts  of  foreign  jurisdictions  exists  by  inter- 
national comity;  t>ut  no  comity  of  any  kind  can  be  invoked  by  a  mere  in- 
vestigating committee  appointed  by  congress. 

The  Central  Pacific  Railroad  Company  is  a  State  corporation,. not  sabject 
to  federal  control,  any  further  than  a  natural  person  similarly  situated  would 
be.     Per  Sawtes,  J. 

The  Central  Pacific  Railroad  Company  is  absolute  owner  of  the  lands  and 
bonds  granted  to  it  by  the  government,  having  complied  with  the  act  making 
the  grant,  subject  to  the  lien  of  the  government  to  secure  its  advances,  in 
the  same  way,  and  to  the  same  extent  as  a  natural  person  in  like  situation. 
Per  Sawtkr,  J. 

The  relation  of  creditor  and  debtor  exists  between  the  United  States  and 
the  Central  Pacific  Railroad  Company,  under  the  act  granting  aid  to  the  lat- 
ter, with  like  force  and  effect  as  if  both  were  natur^  persons,  the  relation 
being  private,  and  having  nothing  to  do  with  the  power  of  the  government 
■a  Bovereiirn.     Per  Sawtbr,  J. 

The  United  States,  as  creditor,  cannot  institute  a  compulsory  investigation 
into  the  private  affairs  cf  the  Central  Pacific  Railroad  Company,  or  require  It 
to  exhibit  its  books  and  papers  for  inspection  in  any  other  way,  or  to  any 
greater  extent,  than  would  be  lawful  in  the  case  of  private  creditors  and 
debtors.     Per  Bawtbr,  J. 

The  United  States,  as  creditor,  have  the  same  remedy  as  a  private  creditor, 
and  no  other,  to  compel  payment  of  any  moneys  due  them  from  the  Central 
Pacific  Railroad  Company,  as  their  debtor,  or  to  prevent  the  latter  from 
wasting  its  assets  before  the  debt  matures,  and  that  remedy,  if  any,  must  be 
by  a  regular  judicial  proceeding  in  due  course  of  law,  and  Congress  has  no 
power  to  institute  a  roving,  legislative  inquisition  into  the  affairs  of  the 
oompany  to  ascertain  what  it  has  done  or  is  doing  with  its  money.  Per 
Sawtbb,  J. 

This  is  an  application  of  the  Pacific  Railway  CommiBBion, 
created  undpr  the  act  of  Congpefls  of  Marcli  8, 1887.  "  Anthorizing 
an  investigation  of  tlie  books,  acconnfs,  and  methods  of  rai1roac» 
which  have  received  aid  from  tlie  United  Stntce,  and  for  other 
purposes,"  for  an  order  requiring  a  wittters  before  it  to  answer 


^dbyGoO^lc 


Coo  APPLICATION  OF  THE   PAOIFIO   EAILWAT   OOHHISSZOIT. 

certain  interrogatories  propouaded  to  liiin.  Tbat  act  antliorises 
the  president  to  appoint  tliree  comuiissionorg  to  examine  the  books, 
papers,  and  tnethoda  of  all  railroad  companteB  which  have  received 
aid  in  bonds  from  the  government,  and  in  terms  invests  tliem  with 
power  to  make  a  Bearching  investigation  into  the  working  and  finan- 
cial management,  business,  and  affairs  of  the  aided  companiei; 
and  also  to  ascertain  and  report  "  whether  any  of  tlie  directors,  of- 
ficers, or  employees  of  said  companiee,  respectively,  have  been,  or 
are  now,  directly  or  indirectly,  interested,  and  to  what  anionnt  or 
extent,  in  any  other  railroad,  steam-ship,  telegraph,  express,  min- 
ing, construction,  or  other  business  company  or  corporation,  and 
with  which  any  agreements,  undertakings,  or  leases  have  been 
made  or  entered  into;  what  amounts  of  money  or  credit  have 
been  loaned  by  any  of  said  companies  to  any  person  or  corpon- 
tion;  what  amounts  of  money  or  credit  have  been  or  are  now 
borrowed  by  any  of  said  companies,  giving  names  of  lendeis 
and  the  porposes  for  which  said  sums  have  been  or  are  now 
required;  what  amounts  of  money  or  other  valuable  consid- 
eration, such  as  stocks,  honda,  passes,  and  so  forth,  have  \ieen  ei- 
pended  or  paid  ont  by  said  companies,  whether  for  lawful  or  un- 
lawful purposes,  but  for  which  sufiicient  and  detiiiled  vouchen 
have  not  Men  given  or  filed  with  the  records  of  said  company; 
and,  further,  to  inquii'e  and  report  whether  said  compiinies,  or 
either  of  them,  or  their  officers  or  agents,  have  paid  any  money  or 
other  valuable  consideiation,  or  done  any  other  act  or  thing,  for 
the  purpose  of  influencing  legislation." 

It  is  diflScult  to  express  in  general  terms  the  extent  to  which  the 
commissioners  are  required  to  go  in  their  inquisition  into  the  busi- 
ness and  affairs  of  the  aided  companies;  or  the  extent  to  which 
they  may  not  go  into  other  business  and  nffuirs  of  its  directors,  of- 
ficers, and  employees.  The  act  itself  must  be  read  to  form  any 
conception  of  the  all-pervading  character  of  the  scrutiny  it  exacts 
of  them.  And  it  provides  that  the  commisBioTiei-s,  or  cither  of 
them,  shall  have  the  power  "to  require  the  attendance  and  testi- 
mony of  witnesses,  and  the  production  of  all  books,  papers,  con- 
tracts, agreements,  and  documents  relating  to  the  matter  under  in- 
vestigation, and  to  administer  oaths;  and  to  thiit  end  may  invoke 
the  aid  of  any  court  of  the  United  States  in  requiring  the  attend- 
ance and  testimony  of  witnesses,  and  the  production  of  books, 
papers,  and  documents,"  And  it  declares  tliat  "any  of  the  circuit 
or  district  courts  of  the  United  States  within  the  jurisdiction  of 
which  such  inquiry  is  carried  on,  may,  in  case  of  contumacy  or  re- 
fusal to  obey  a  suhpcena  issued  to  any  pei-son,  issue  an  order  re- 
quiring any  such  person  to  appear  before  said  commissioners,  or 
either  of  them,  as  the  ease  may  be,  and  produce  books  and  papers, 
if  so  ordered,  and  give  evidence  touching  the  matter  in  question : 
and  any  failure  to  obey  snch  order  of  the  court  may  be  pnnisliuJ 


^d  by  Google 


AUTHORITY   OF   PACIFIC   RAILWAY   COMMISSION.         COl 

b;  such  conrt  as  a  contempt  tliereof."  And  also  that  "  the  claim 
that  any  sneti  testimony  or  evidence  may  tend  to  criminate  the 
pereoD  giving  such  evidence,  eliall  not  excnse  bucIi  witness  from  tes- 
tifying, bnt  sncli  evidence  or  teEtimoiiy  shall  not  be  nsed  against 
Buch  pei-Bon  on  the  trial  of  any  cnminal  proceeding." 

In  the  discharge  of  the  dnties  imposed  npon  them,  the  commis- 
flioners  have  attended  at  San  Fiancisco,  and  called  before  them  as 
a  witness  Leland  Stanford,  who  is  now,  and  has  been  from  its  or- 
ganization, president  of  tlie  Central  Pacific  Railroad  Companj^, 
one  of  the  companies  whicli  received  aid  in  bonds  from  the  gov- 
ernment ;  and  on  the  tenth  of  Angnst,  wliile  he  was  under  cxain- 
ination  respecting  the  affairs  of  that  company,  a  number  of  vonch- 
«rs  purporting  to  represent  the  expenditure  of  moneys  belonging 
to  it  wera  pitidnced  and  verified.  These  vouchers,  as  stated  by 
the  commissioners,  represented. the  aggregate  sum  of  $733,725.68, 
which  had  been  expended  by  Mr.  Stanfoi-d  between  November  9, 
1870,  and  December  21,  1880,  and  by  him  charged  to  the  com- 
pany, and  by  the  company  subsequently  reirabnreed  to  him.  The 
pei-Bons  to  whom  the  moneys  were  paid,  and  tlie  objects  to  which 
they  had  been  applied,  do  not  appear  upon  the  face  of  the  vouch- 
ers, except  that  the  objects  are  stated  to  have  been  for  "general 
expense  acconiit,"  or  for  "legal  services,"  and  except,  also,  that  in 
a  few  instances  the  initials  of  persons  to  whom  the  money  is  pur- 
ported to  have  been  paid  are  given.  One  of  the  vouchers  (No. 
3,569J)  repi-esented  the  expenditure  of  $171,781.89.  It  read  as 
follows : 

C.  P.  R.  R,  Co.  to  Ldand  Sianford,  Dr. 
To  cash  paid  on  account  of  general  expenses  to  December  81, 1875,  tl8T,86S  SO 
To  ca^  paid  cm  account  of  genenl  expenses  to  December  81, 1870,      84,416  89 


171,781  89 
This  was  endorsed,  fa  addition  to  Its  number  amount,  and  a  Btatement  of  its 
genersl  cbaracCer,  as  follows: 

"  Allowed  February  7,  by  board  of  directors,  folio  158. 
"I  certify  Ihat  Ihe  within  account,  amounting  to  $171,761.89,  la  correct. 
"  Leland  BrAjnoBS." 

When  under  examination  Mr.  Stanford  was  asked  to  explain  in 
detail  the  character  of  the  expenditures-  covered  by  this  voucher, 
he  replied  that  he  had  no  recollection  of  its  contents,  but  presumed 
it  was  made  up  of  many  items.  lie  then  proceeded  to  explain  at 
great  length  the  maimer  in  which  he  did  business  for  the  company 
m  negoti:iting  loans  and  incnrring  expenditures,  which  was  briefly 
this:  The  loans  were  generally  negotiated  in  San  Francisco,  and 
the  payment  of  expenses  incurred  by  him  was  frequently  made 
there,  though  for  many  years  the  office  of  the  company  was  at 
Sacramento.  His  payments  were  usually  in  checks  drawn  in  his 
own  name.  The  check-books,  with  loose  menioianda  kept  by  him, 
were  handed  from  time  to  time  to  some  one  connected  with  the 


^d  by  Google 


602  APPLICATION   OF  THB  PACIFIC   RAILWAY   C0SJM1S810K. 

office,  by  whom  a  general  voacher  was  made  ap  embracing  tb& 
Beveml  expenditures  incarred,  and  the  voodier  was  tben  presented 
hj  the  witness  to  tbe  directors  of  the  company,  and  by  them  ap- 
proved. The  witness  kept  no  acconnte  of  liis  several  expenditures 
except  loose  memoranda  and  bis  clieck-books,  from  which  the 
TOQcbers  were  made  up;  and  he  supposed  the  voucher  in  question 
was  thus  made  up.  He  could  not,  at  that  date,  state  tlie  items 
which  made  up  tbe  several  accounts,  bat  he  bad  no  doubt  that  be 
explained  tbe  matter  to  the  company  when  the  voucber  was  pre- 
sented. To  tbe  question,  "Wliat  explanation  did  yon  give  tbe 
company!"  the  witness  answered  as  follows:  "  Well,  as  I  do  not 
remember  the  items  of  it,  I  cannot  remember,  of  course,  what  ex- 
planation I  may  have  given  to  the  company.  I  don't  think  I  went 
into  details  of  these  things  to  the  company,  further  than  to  say  I 
found  it  necessary  to  expend  for  the  general  interest  of  the  com- 
pany so  much;  and  I  do  not  think  that  tJiey  ever  questioned  me 
particularly  as  to  the  wisdom  of  tbe  expenditure." 

The  commission  then  asked  the  witness  this  question:  "Was  ' 
any  part  of  the  $171,000  (the  sum  named  in  this  bill  that  I  have 
banded  to  yon,  and  that  yon  havej  paid  for  the  purpose  of  influ- 
encing l^islation?"  The  counsel  present  acting  for  the  i-ailroad 
company  objected  to  the  qneetion,  for  tbe  reason  tJiat  the  witness 
had  said  that  be  did  not  remember  what  constituted  the  items 
composing  tbe  voucber ;  and  stated  that  upon  that  point  (of  infln- 
eucing  legislation)  any  question  tbe  conimiseion  has  asked,  or  might 
be  disposed  to  ask,  tbe  witness  would  be  advised  not  to  answer, 
upon  tne  ground  that  the  company  is  willing  to  account  to  tbe 
government  for  its  proportion  of  any  voucher  that  is  produced,  or 
of  any  entry  upon  the  books  of  tbe  company  that  is  unexplained, 
and  therefore  it  will  not  make  any  difference  what  is  done  with 
the  money, — whether  it  was  thrown  into  tbe  sea,  or  wasted  in  any 
manner  or  form.  Tlie  chairman  of  the  commission  repeated  tbe 
question  in  a  modified  fonn  as  follows:  "Was  any  part  of  tbe 
sum  named  in  tbe  voucher  submitted  to  you  paid  to  any  agent  or 
individual  for  the  purpose  of  influencing  legislation  ?"  To  this  tbe 
witness  answered  as  follows;  "1  told  you  I  did  not  know  anything 
about  this,  hnt  then  I  shall  act  upon  tlie  advice  of  my  connsel.  I 
don't  suppose  it  can  make  any  possible  difference  as  long  as  we  ac- 
count for  tbe  money.  If  the  government  is  not  satisfied  with  tbe 
voucliers  which  we  present,  wiietber  the  money  was  expended  or 
wasted,  or  anything  of  the  kind,  it  can  make  no  possible  difference, 
because,  if  it  went  into  the  sea,  if  I  bad  used  this  money  improp- 
erly or  thrown  it  away,  1  might  be  accountable  to  the  stockholders 
for  my  trust ;  but  the  government  cannot  have  any  more  than  the 
money,  and  the  company  is  willinir  to  account  for  that  if  you  are 
not  satisfied  with  tlie  action."  Tbe  witness,  therefore,  nnder  ad- 
vice of  counsel  declined  to  give  any  further  a 


^dbyGooglc 


AUTHORITT   OF  PACIFIC   BAILWAT   COMMISSION.         603 

The  cliaJnnai)  also  asked  this  qaestion  :  "  Are  toq  able  to  state 
to  the  coinmisBion  that  any  of  the  money  was  paid  for  illegitimate 
or  corrnpt  purpoeee;  that  is,  to  corrapt  the  legislature  of  the 
State  of  California,  or  any  otiier  State  legislature,  or  the  Congress 
of  the  United  States t"  and  to  which  the  witness  answered  as  fol- 
lows :  "  I  have  told  yoa  what  I  know,  that  I  do  not  remenil>er 
about  that  account;  but  I  can  say  this:  that  I  never  cornipted  a 
member  of  the  legislatnre  in  my  life,  and  I  do  not  know  that  any  of 
my  agents  ever  did.  So  far  as  Congress  is  concerned,  I  saw  a  state- 
ment that  tJie  board  of  directors  allowed  my  account  for  expendi- 
tures made  in  Wasliington  or  in  various  places.  I  do  not  know 
that  I  ever  had  any  occasion  to  pay  out  any  money  at  Washing- 
ton except  for  my  own  private  expenses." 

The  witness,  upon  fnrtlier  examination,  testified  that  his  check- 
books in  which  he  drew  his  checks  for  the  expenditures  were  de- 
stroyed ;  that  it  had  always  been  his  habit  about  once  a  year  to 
have  a  "clean  up;"  and  when  he  wanted  to  go  away  he  would 
overhaul  his  papers,  and  what  he  did  not  want  he  wonld  destroy  y 
that  he  had  been  to  Earope  three  times  within  the  last  few  years, 
and  eacli  time  he  had  "cleaned  up,"  leaving  only  sncli  papers  as, 
in  case  he  might  not  return,  he  was  willing  tiiat  other  people- 
might  see. 

Kotwithstunding  the  answer  of  the  witness  that  lie  could  not 
state  the  itema  of  the  voucher,  and  bad  no  I'ecollectiun  of  any  of 
them,  he  wns  repeatedly  asked  substanlinlly  the  same  question,  as 
though  by  its  repetition  a  different  answer  might  be  obtained. 
The  answer  was,  however,  Bubstantially  rlie  same  in  every  in- 
stance. Other  voncliers  of  »  similar  kind  pi-esented  by  the  wit- 
ness to  the  company  were  produced  ;md  verified,  and  with  respect 
to  them  the  witness  said  as  follows :  "  I  suggest  to  the  commisMon 
that  there  is  not  in  all  that  class  of  bills  tu'-diiy  a  single  item  tliat 
I  positively  remember.  I  could  not  tell  the  amount,  nor  when 
these  bills  were  credited,  excepting  I  went  to  the  books.  I  cannot 
tell  of  a  single  item  that  went  to  make  up  the  amounts.  Let  my 
answer  as  to  this  and  to  the  other  vouchers  of  that  class  be  the  same 
as  I  have  made  to  the  other  (the  first)  voucher ;  and  I  will  take 
thiit  position  generally."  Yet  tlie  commissioners  felt  it  their  duty 
to  ask  specifically  as  to  each  vouclier  substantially  the  same  ques- 
tion, at  which  some  feeling  appears  to  have  been  excited,  as  the 
following  piissage  from  the  examination  upon  one  of  the  vouchers 
discloses : 

"  Chairman  of  the  Commission  :  "Was  any  part  of  tlie  sum  ex- 
pended through  any  agent  or  individual  for  the  purpose  of  hiflu-  . 
encing  legislation  ?  Answer :  Not  to  my  knowledge.  I  have 
told  yon  already.  I  do  not  know  tlie  object  of  your  examining 
me  in  this  way.  1  have  told  you  that  I  do  not  know  anything 
about  it,  and  I  have  told  you  that,  I  think,  three  or  four  times. 


^dbyGoOglc 


604  APPUCATION  OP  THE  PACIFIC  RAILWAY  C01IMI9SI0K. 

Tlie  Chairman :  I  want  yon  to  distinctly  nnderstand  that  I  am 
going  to  aak  yoa  as  to  each  of  tliese  voochero,  and  I  will  pat  it  on 
tliei'ecord.  The  WitneBs:  Audi  want  yon  to  distinctly  understand 
that  1  Bhall  exercise  my  discretion  abont  it.  The  Chairman :  That 
is  your  right,  and  it-  is  my  right  and  doty,  sworn  to,  to  ask  yoo. 
The  "Witness:  It  ia  your  nglit  and  vonr  duty  to  be  a  gentleman  in 
asking  questions.  TheCliairman:  Well,  if  I  have  not  been,  I  will 
apologize.  The  Witness :  Well,  I  think  you  have  occasion  to  apol- 
ogize for  asking  such  questions  as  that  over  and  over  again.  The 
Cliairman :  I  will  repeat  my  qneetion,  and  yon  can  decline  just  as 
you  have  done.  I  am  going  through  all  of  these  voncliers  juet  in 
this  way,  so  that  tliere  will  he  no  mistake  in  the  future." 

The  commissionera  now  ask  in  their  petition  that  the  witness  be 
summoned  to  show  canse  why  he  should  not  be  required  to  answer 
the  intert'ogatoriee  whether  any  part  of  tbe  enms  named  in  the 
several  voucliers  was  paid  for  the  purpose  of  influencing  legisla- 
tion, wliich  he  has  declined  to  do  except  in  the  manner  stated. 

Subsequently,  interrogatories  were  propounded  to  Mr.  Stanford 
inquiring  whether  any  portion  of  the  moneys  covered  by  tbe  sev- 
«ral  vouchers  produced,  following  the  firat  one,  was  paid  to  certain 
parties,  who  were  named,  for  the  purpose  of  using  the  same  in 
connection  with  mensnres  pending  in  the  legislature.  The  witness 
declined  to  answer  tlicse  interrogatories,  and  the  commissionei's 
also  aek  in  their  petition  that  he  be  summoned  to  show  cause  why 
he  sliould  not  be  required  to  answer  tliem. 

It  wns  also  in  evidence  before  the*com mission  that  in  December, 
1875,  the  legislature  of  California  was  in  session  in  the  city  of 
fiacramcnio,  imd  that  it  was  tbe  cnstom  of  the  railroad  company 
to  be  represented  before  its  committees.  The  commission  there- 
upon inquired  as  follows : 

•'The  Cliairman:  How  many  repreeentatives  did  yon  have 
there  i  Answer :  I  used  to  genei'ally  go  there  and  spend  a  good 
deal  of  time  when  there  was  any  very  hostile  legislation  going  on 
or  proposed.  I  was  np  there,  and  sometimes  had  one  of  our  peo- 
ple, and .  sometimes  anotliei', — sometimes  one  lawyer,  and  some- 
times another.  The  Chairman  :  Please  name  the  lawyers  who  were 
in  the  habit  of  attending  the  legislature  with  you.  Answer:  Un- 
less it  is  really  necessary,  I  do  not  want  to  go  into  the  detail  of 
anything  of  that  kind.  We  often  employed  agents  in  a  contiden- 
tial  character,  and  it  was  not  advisable  tliat  others  should  know 
that  they  wete  in  our  service.  I  do  not  want  to  answer  unless 
I  ;iin  compelled  to  answer.  I  want  to  give  yon  all  the  infor- 
inaiion  that  it  is  in  our  power,  by  whicli  you  may  nnderstand 
under  wliat  obligations  we  are  to  tlie  government.  If  we  have 
wrongfully  disposed  of  any  of  tiie  assets  of  the  Central  Pacific 
Company  that  could  possibly  affect  its  relation  with  the  govern- 
mcnt,  I  want  you  to  know  it ;  but  where  it  is  a  matter  merely  be- 


=dbvCtH>'^lc 


AUTHOBITT   OF  PACIFIC  EAILWAT   COMMISSION.         605 

tween  myself  and  my  Btockbolders  and  directors,  and  it  cannot 
make  any  difference  in  oor  relations  to  the  government,  or  what 
tlie  government  may  want  to  claim  becanee  ot  tlie  lack  of  proper 
TonclierB  npon  wliioli  to  base  their  five  or  twenty-five  per  cent,  I 
do  not  want  to  do  it.  I  cannot  conceive  that  tlie  queetions  yon 
are  asking  me  can  possibly  affect  onr  account  with  the  government 
as  long  as  we  are  willing  to  pay.  If  yon  are  not  satisfied  witk 
these  vouchers,  we  say  to  yon,  say  so,  and  we  will  account  for 
them  as  money  on  iiand." 

To  the  question  subsequently  repeated  the  witness  declined  to 
answer,  and  the  commissioners  pray  in  tlieir  petition  that  the  wit- 
ness also  be  required  by  order  of  tlie  conrt  to  show  cause  wiiy  be 
shall  not  be  required  to  answer  this  interrogatory.  Upon  tlie  fil- 
ing of  the  petition,  which  was  signed  and  verified  by  the  oath  of 
the  commissioners,  an  order  was  entered  as  prayed  that  the  wit- 
ness show  cause  before  tlid  court,  on  a  day  designated,  why  he 
should  not  be  required  to  appear  before  them  and  answer  the  in- 
terrogatories propounded. 

Tlie  witness  appeared  ii^  response  to  tho  order,  and  filed  his  an- 
swer to  the  petition,  in  which  lie  gives  at  some  length  the  history 
of  the  construction  of  tlie  road  of  tbe  company,  and  of  thediffi- 
oalties  its  projectors  had  to  eiiconnter,  and  mentions  tlie  aid  in 
bonds  and  lands  I'eceived  from  the  government,  and  tlie  annual  re- 
ports made  to  the  secretary  of  tlie  treasury  of  its  condition  and 
management.  He  states  that  since  its  orgunization  in  June,  1861, 
he  has  been  its  president,  and,  after  describing  tbe  manner  of  do-  . 
ing  business,  adds : 

"  In  titia  way  I  have  taken  part  in  tiansacting  the  bnginese  of 
the  company  for  a  period  now  extending  ovei'  (25)  twenty-fivo 
years,  and  in  point  oi  value  aggregating  npwnrd  of  four  iiundred 
millions  of  dollars.  As  the  bnsineas  took  place  I  was  cognizant 
of  it;  but  owing  to  its  multiplicity,  and  the  piessute  of  matters 
more  important  than  mere  detail,  as  well  as  tlie  lapse  of  time,  X 
am  now  no  longer  able  to  recall  many  of  the  matters  with  which 
I  was  personally  so  familiar." 

He  also  states  that  by  the  decision  of  tlie  supreme  court  tlie.re- 
latioa  between  the  United  States  and  tbe  railroad  company  is  that 
of  creditor  and  debtor,  and  that  tbe  rights  of  both  are  those 
springing  from  that  relation  ;  that  the  examination  made  by  tbe 
commission  has  not  only  extended  to  the  affaii's  of  tbe  Central 
Pacific  R.  Co.,  but  has  extended  to  a  searching  investigation  of 
the  affairs  of  ^1  the  consolidated  and  allied  companies  connected 
with  that  corporation  ;  and  that  their  affairs  have  been  examined 
into,  not  only  by  the  experts  of  tbe  comniiseion,  bnt  tlie  commis> 
sioners  themselves,  and  tneir  bnsiness  relations  have  been  exposed 
to  the  public  and  the  prying  cnriusity  of  rival  business  compet- 
itors; and  that  the  commission  insists  npon  investigating  matters 


^dbvGooglc 


6U0   APPLICATION   OF  THB  PACIFIC    BAfLWAT  COMMISSION. 

vith  which  the  goremment  has  and  can  have  no  poeeible  coneem ; 
that  the  disposition  the  company  ma;  hare  made  of  such  portion 
of  its  assets  or  eamines  as  the  government  has  not  and  never  ]tad 
any  interest  in  is  of  this  character;  and  ;et  the  commission  insists 
apoD  answers  to  qnestions  respectine  such  dispoEition  wliich  can 
have  no  possible  effect  npon  the  retations  Ijetwecn  the  company 
and  thegovemmetit,  and  can  onlj  tend  to  cast  suspicion  upon  par- 
ties whose  names  may  be  mentioned ;  and  as  the  eabjecta  in  respect 
to  which  these  questions  are  uroponndcd  are  of  an  exclosively  pri- 
rate  character,  in  no  way  affecting  the  interests  of  tlie  govern- 
ment, neither  the  company  nor  its  officers  feel  called  npon  to 
answer. 

The  respondent  also  makes  the  extraordinary  statement  that  lie 

'  is  constrained  to  this  coarse  "  as  the  gentlemen  of  the  commission 
have  distinctly  and  repeatedly  avowed,  in  the  conrae  of  their  ex- 
amination, that  tiiey  do  not  regard  themselves  bonnd  in  snch  exam- 

■  jnation  by  the  ordinary  rnles  of  evidence ;  that  they  wonld  receive 
hearsay  and  exparte  statements,  Bnrmiees,  SBSpicions,  and  all  char- 
acter of  information  that  raiglit  be  called  to  their  attention  ;"  and 
that,  during  the  course  of  his  examination,  it  Jiad  more  than  once 
traiispii-ed  that  lie  was  examined  npon  charges  made  in  pleadings 
and  proceedings  inatitntcd  against  the  company  based  npon  sus- 
picion and  surmises,  and  in  many  cases  without  actual  foundation  ; 
that  qneetlons  had  been  propounded,  and  a  line  of  examination 
pursued  manifestly  prompted  by  disafEected  and  hostile  parties, 
whose  aim  was  more  the  pursuit  of  persona]  enmity  of  a  private 
character  than  the  interests  of  the  public  at  large  or  the  ends  of 
jnstice;  that  to  answer  any  of  the  obiectionabie  questions  would 
necessarily  give  rhe  to  the  implication  that  all  persons  wlioee 
names  may  be  mentioned  in  the 'queetionB  to  whicli  answci'S  are 
declined  are  guilty  of  the  acts  of  commission  which  are  implied 
in  the  bai'e  asking  of  tiie  questions ;  that  in  liis  testimony  he  had 
said  in  substance,  and  now  repeats  it,  that  he  never  corrupted,  or 
attempted  to  corrupt,  any  member  of  the  legislature,  or  any  mem- 
ber of  Congress,  or  any  public  official,  and  never  autiiorized  any 
agent  to  do  so;  that  all  the  claims  covered  by  t lie  vouchers  re- 
ferred to  liavR  received,  not  only  the  approval  of  the  board 
of  directors  of  the  Central  Pacific  K.  Co.,  but  likewise  tlie 
approval  of  the  stoeklioidcrs  of  that  company;  that  all  pnrties 
who  could  in  anywise  legally  or  equitably  be  affected  by  the  dis- 
bursemcnta  embraced  in  tliem  were  fully  satisfied  therewith,  and 
have  ratified  and  approved  of  the  same. 

And  in  addition  the  respondent  states  that  in  the  conduct  and 
management  of  a  business  of  tlie  magnitude  of  the  Central  Pa- 
cific R.  Co.,  and  the  various  corporations  consolidated  and  allied 
therewith,  it  is  impossible  not  from  time  to  time  to  have  to  do 
business  involving  disbursements  which  every  dictate  of  bnsi- 


^d  by  Google 


ADTHOBITT   OF   PACIFIC   RAILWAY   COMMISSION.         607 

neas  prndence  will  not  admit  of  being  made  public ;  that  arrange- 
ments of  a  private  character,  names  of  parties  not  publicly  known, 

4iDd  the  disclosuree  of  wliich  could  only  result  in  defeating  tlie 
ends  in  view,  and  exposing  tlie  persons  so  named  to  suGpicion  and 
■obloqny,  would  forbid  making  the  same  pnbtic,  either  npon  the 
arcliives  of  the  company,  or  before  a  public  coinmieeion  ;  tJiat  tliia 

-oonrso  of  policy  ie  not  only  sanctioned  by  ordinary  experience  in 
bosinese  life,  bnt  the  government  of  the  United  States,  and  tli^ 
government  of  tlie  State  of  California,  as  well  as  the  TOvernment 

■of  the  city  and  connty  of  San  Francisco,  severally,  allow  to  their 
chief  magistrates  money,  the  investment  of  which  is  committed  ex- 

-clnsively  to  their  jtidgment  and  discretion,  and  for  which  detailed 
voachefB  are  never  required. 

Tlie  respondent  fnrtiier  adds  that  the  commission  deemed  it  its 

-dnty  to  propound  qnestions  involving  criminality  on  his  part,  and 
on  the  part  of  the  persons  whose  names  were  mentioned  in  sncfa 

■qnestions,  answei-s  to  which,  for  the  reasons  stated,  he  has  felt  con- 
strained to  decline  to  make ;  that,  acting  not  only  on  his  own  be- 
half,  bnt  on   behalf  of  those  whose  interest  as  stockholders  of  the 

•Central  Pacific  Railroad  Company  are  committed  to  his  charge,  he 
feela  bound  to  decline  to  answer  them  unless  by  the  court  ae  is 
otherwise  directed. 

The  purport  of  the  answer  of  the  respondent  is  that  the  eovem' 
ment  has  no  legal  interest  in  the  matters  in  relation  to  which  the 
interrogatories  are  propounded ;  that  he  has  answered  the  interrog- 
atories 90  far  as  it  was  in  his  power  to  do  so,  not  having  any  rec- 
ollection of  the  items  for  wbicli  the  vouchei«  were  made  Dp,  at  this 

■distant  day  from  the  transactions  to  which  they  relate;  and  tliat 
he  is  shielded  by  the  constitution  from  answering  questions  imply- 
ing criminality  in  his  conduct,  and  calculated  to  cast  aspersions 
upon  others. 

The  district  attorney  of  the  United  States,  acting  for  the  com- 
missioners, moves  for  a  peremptory  order  upon  the  witness  to  com- 
pel him  to  answer  the  interrogatories,  notwithstanding  his  answer 
to  the  order  to  show  cause, 

T.  I.  Bergin  and  Z.  D.  MoKidch  for  Leiand  Stanford. 
.  John  T.  Carey,  U.  S.  Dist.  Atty.,  and  Benry  O.  McPike,  Asst. 
U.  S.  Diet.  Atty.,  for  the  Railway  Oommieeion. 

Field,  J. — The  motion  for  a  peremptory  order  upon  the  witness 
to  answer  the  interrogatories  propounded  by  the  railway  commiS' 
sion  has  been  fully  argued;  and  everything  which  could  be  said 
in  its  favor  has  been  ably  presented  by  the  United  States  attorney, 
either  in  oral  or  printed  arguments.  In  resisting  the  motion, 
connsel  of  the  respondent  have  not  confined  themselves  to  a  dis- 
cussion of  the  propriety  and  necessity  of  the  interro^atones,  and 
the  snffioiency  of  the  ansven  given  by  him ;  bnt  they  Have  assailed 


^d  by  Google 


608  APPLICATIOW   OF  THE  PACIFIC   RAILWAY   CUMMISSION. 

the  raliditj  of  the  act  creating  the  commission,  so  far  as  it  antbor- 
izee  an  examination  into  the  private  affaire  of  the  directors,  officers, 
and  employees  of  the  Central  Pacific  Itailroad  Company,  and  con- 
fers the  right  to  invoke  the  power  of  the  federal  courts  in  aid  of 
the  general  inveatigatiou  directed.  Impressed  witli  tlie  gravity  of 
the  questions  presented,  we  have  given  to  them  all  the  considera- 
tion in  our  power. 

The  Pacific  Railway  CommisBion,  created  nnder  the  act  of  Con- 
gress of  March  3,  1887,  is  not  a  judicial  body ;  it  poe- 
ctjr^^u-irii  sesses  no  jndicial  powers ;  it  can  determine  no  riglits 
of  the  government,  or  of  the  companies  whose  affairs 
it  investigates.  Those  rights,  will  remain  the  subject  of  judicial 
inquiry  and  determination  as  folly  as  thoogli  the  commission  had 
never  been  created  ;  and  in  such  inquiry  its  report  to  the  president 
of  its  action  will  not  be  even  admissible  ae  evidence  of  any  of  the 
matters  investigated.  It  is  a  mere  board  of  inquiry,  directed  to 
obtain  information  upon  certain  matters,  and  report  the  result  of 
its  iurestigations  to  the  president,  who  is  to  lay  the  same  before 
Congress.  In  the  progress  of  its  investigations,  and  in  the  further- 
ance of  them,  it  is  in  terms  autliorized  to  invoke  the  aid  of  the 
courts  of  the  United  States  in  requiring  the  attendance  and  testi- 
mony of  witnesses,  and  the  production  of  books,  papers,  and  docu- 
ments. And  the  act  pi-ovidea  that  the  circuit  or  district  court  of 
the  United  States,  witliin  the  jurisdiction  of  which  the  inquiry  of 
the  commission  is  had,  in  ease  of  contumacy  or  refusal  of  any  per- 
son to  obey  a  eubpcena  to  him,  may  iasne  an  oi-der  requiring  such 
person  to  appear  before  the  commissioners,  and  produce  books  and 
papers,  and  give  evidence  touching  the  matters  in  qnestion. 

riie  investigation  dir-ected  is  to  be  distinguished  from  the  inqui- 
ries authorized  upon  taking  the  census.  The  constitution  provides 
for  an  enumeration  of  the  inhabitants  of  the  States  at 
mCTraonB^M  regular  periods,  in  order  to  furnish  a  basis  for  the  ap- 
rmM^cKHauB  portioninent  of  representatives,  and,  in  connection  with 
the  ascertainment  of  the  number  of  inliabitants,  the  act 
of  Congress  provides  for  certain  inquiries  as  to  their  age,  birth^ 
marriage,  occupation,  and  respecting  some  other  mattera  of  gene- 
ral interest,  and  for  a  refusal  of  any  one  to  answer  them  a  small 
penalty  is  imposed.  Kev.  St.  §  2171.  There  is  no  attempt  in 
such  inquiries  to  pry  into  the  private  affairs  and  papers  of  any  one, 
nor  are  the  courts  called  upon  to  enforce  answers  to  them.  Simi- 
lar inquiries  usually  accompany  the  taking  of  a  census  of  every 
country,  and  are  not  deemed  to  encroach  upon  the  rights  of  the 
citizen.  And  in  addition  to  the  inquiries  usually  accompaning  the 
taking  of  a  censas,  there  is  no  doubt  that  Congress  may  authorize 
a  commission  to  obtain  information  npon  any  subject  which,  in  ita 
judgment,  it  may  be  important  to  poBBOBS.  It  may  inquire  into 
the  extent  of  the  productions  of  the  ooantry  of  every  kind,  nata- 


^d  by  Google 


AUTIIuKITY  OF  PACIFIO  EAJLWAT  OOUHIBBIOIT.        609 

ral  and  artificial,  and  seek  infonnation  as  to  the  habits,  baeineBS^ 
and  even  amnsements  of  the  people.  Bat  in  its  Inqniries  it  is  con- 
trolled by  the  same  gnards  against  the  invasion  of  pri- 
vate rights  which  limit  the  investigations  of  private  ^StmSSf  % 
parties  into  similar  matters.  In  the  pursnit  of  knowl-  S^"??^  J"of 
edge  it  cannot  compel  the  production  of  the  private  i£g^  ""  '*' 
books  and  papers  of  the  citizen  for  its  inspection,  ex- 
cept in  the  progi'ess  of  judicial  proceedings,  or  in  snits  institnted 
for  that  pui'pose,  and  in  both  cases  only  upon  averments  that  its 
rights  are  in  some  way  dependent  for  enforcepient  npon  the  evi- 
dence those  books  and  papere  contain. 

Of  ail  the  riglits  of  tlie  citizen, few  are  of  greater  importance  or 
more  essential  to  his  peace  and  happiness  than  the  right  of  personal 
security,  and  that  involves,  not  merely  protection  of 
his  person  fi-om  assanlt^  bnt  exemption  of  his  private  K^¥5^,f? 
affairs,  books,  andpapera  from  the  inspection  and  scru-  Siii',ioS 
tiny  of  otliers.  Withont  the  enjoyment  of  this  right,  ESSmf*^ 
all  other  rights  would  lose  half  their  value.  The  law 
pi-ovides  for  the  compulsory  prodnction,  in  the  progress  of  jndicial 
proceedings,  or  by  direct  snit  for  tliat  pnrpose,  of  soch  documents 
as  affect  die  interest  of  others,  and  also,  m  certain  cases,  for  the 
seizure  of  criminating  papers  necessary  for  the  prosecution  of  of- 
fenders against  pobtic  jnstice,  and  only  in  one  of  these  ways 
can  they  be  obtained,  and  their  contents  made  known,  againflt  the 
will  of  the  owners. 

In  tlie  recent  case  of  Boyd  «.  U.  S.,  116  U.  S.  616,  the  Bnpreme 
court  lield  that  a  provision  of  a  law  of  Congress,  which  anthorized 
a  court  of  the  United  States  in  revenne  cases,  on  motion  of  the 

fovernment  attorney,  to  require  the  defendant  or  claimant  to  pro- 
uce  in  conrt  his  private  books,  invoices,  and  papei-s,  or  that  the 
allegations  of  the  attorney  respecting  them  should  be  taken  as  con- 
fessed, was  nn constitutional  and  void  as  applied  to  snits  for  penal- 
ties or  to  establish  a  forfeitui-e  of  the  party's  goods.  The  conrt, 
speaking  by  Mr.  Justice  Bradley,  said  : 

*'  Any  compulsory  discovery  by  extorting  the  party's  oath,  or 
compelling  tlie  production  of  his  private  books  and  papers,  to 
convict  him  of  crime  or  to  forfeit  his  property,  is  contrary  to  the 
principles  of  a  free  government.  It  is  abnorrent  to  the  instincts 
of  an  Englishman  ;  it  is  abhorrent  to  the  instincts  of  an  American. 
It  may  suit  the  pnrpose  of  despotic  power;  bnt  it  cannot  abide 
the  pure  atmosphere  of  political  liberty  and  personal  freedom." 

The  language  thus  used  had  reference,  it  is  true,  to  the  com- 
pulsory prodnction  of  papers  as  a  foundation  for  criminal  proceed- 
10^  but  it  is  applicable  to  any  such  production  of  the  private  books 
and  papers  of  a  party  otherwise  than  in  the  course  of  jndicial  pro- 
oeedmgs,  or  a  direct  suit  for  that  purpose.  It  is  the  forcible  intm- 
uon  into,  and  compulsory  exposure  of,  one's  private  afiEairg  and 
SI  A.  <fe  E.  R.  Caa— SQ 


^d  by  Google 


610   APPLIOATIOIf   OF  TH9  PACIFIO   RAILWAY   COHHISSIOH. 

papers,  without  judijnal  process,  or  in  the  oonree  of  jndicial  proceed- 
ings, vhidi  is  contrary  to  the  principles  of  a  free  goTernment,  and 
is  abhorrent  to  the  instincts  of^Englislimen  and  Americans. 

In  his  opinion  in  the  celebrated  case  of  En  tick  v.  Carrington,  re- 
ported at  length  in  19  How.  State   Tr.  1029,  Lord  Camden  said: 

"  Papers  are  the  owner's  goods  and  chattels ;  they  are  his  dearest 
property,  and  are  so  far  from  enduring  a  seizure  that  tliey  will 
hardly  bear  an  inspection  ;  and  thongh  tne  eye  cannot,  by  the  la^ 
Qf  England,  be  guilty  of  a  trespass,  yet,  where  papers  are  removed 
U)d  carried  away  the  secret  ualuie  of  those  goods  will  be  an  ig- 
gravatiou  of  the  trespass,  and  demand  more  considerable  damages 
ip  that  respect.  Where  is  the  written  law  that  gives  any  m^E- 
trate  ancli  a  power  1  I  can  safely  answer  there  is  none;  thererore 
it  IS  too  much  for  us,  witliout  such  authority,  to  pronounce  a 
practice  legal  which  would  be  subversive  of  all  the  comforts  of 
abdety." 

Compulsory  process  to  produce  such  papers,  not  in  a  judicial 
proceeding,  but  before  a  commissioner  of  inquiry,  is  as  subvereivc 
of  "all  the  comforts  of  society"  as  tlicir  seizure  under  the  general 
waxrant  condemned  in  that  case.  The  principles  laid  down  in  tlie 
opinion  o(  Lord  Camden,  said  the  supreme  court  of  the  United 
States, "  affect  the  very  essence  of  constitntional  liberty  and  security. 
Th^  reach  further  than  the  concrete  form  of  the  case  then  before 
t^  (^urt  with  its  adventitious  circumstances;  they  apply  to  all 
invasions  on  the  part  of  the  government,  and  its  employees,  of  tbe 
Wjinctity  of  man's  home  and  the  privacies  of  life." 

la  Kilbopm  v.  Thompson,  103  U.  B.  168,  we  have  a  decision  of 
tt^e  supreme  court  of  the  United  States  that  neither  house  of  Con- 
gress has  the  power  to  make  inqnires  into  the  private  affairs  of  the 
citizen;  that  is,  to  compel  exposure  of  such  affairs.  That  case 
as  this:  The  firm  of  Jay  Cooke  and  Co.  were  debtors  of  tite 
uited  States,  and  it  was  alleged  that  they  were  interested  in  a 
TQal^estate  pool"  in  the  city  of  Washington,  and  that  the  trustee 
of  their  estate  and  effects  had  made  a  setttlement  of  their  interests 
with  the  associates  of  the  firm  to  the  disadvantage  and  loss  of 
numerous  creditors,  including  the  government  of  the  United  States. 
The  house  of  representatives,  by  a  resolution  reciting  these  factf, 
aathorized  the  speaker. to  appoint  a  committee  of  five  to  inquire 
into  the  matter  and  history  of  said  "  real-estate  pool,"  and  the  char- 
acter of  the  settlement,  with  the  amount  of  the  property  involved, 
in  which  Jay  Cooke  and  Co.  wera  interested,  and  the  amount  paid, 
or  to  be  paid,  in  said  settlement,  with  power  to  send  for  persons 
and  papers,  and  report  to  the  house.  The  committee  was  appointed 
and  organized,  and  proceeded  to  make  the  inquiry  directed.  A 
subpoena  was  issned  to  one  Kilbourn,  commanding  him  to  appear 
before  the  committee  to  testify  and  be  examined  touching  the  mat- 
ters  to  be  intjuired  into,  and  to  bring  with  him  certain  designated 


^dbvGooglc 


wi 
Ui 


AUTBOSIIT  OP  PAOIPIO  RAILWAY  OOHiaSBIOJI.       611 

ceeords,  papers,  and  majw  relating  to  the  inqoiiy.  Eilboorn  ap- 
peared before  the  committee,  ana  was  asked  to  state  the  namee  of 
the  five  members  of  the  real-estate  pool,  and  where  each  resided, 
and  he  refused  to  answer  the  question,  or  to  produce  the  books 
whicU  had  been  required.  The  committee  reported  the  matter  to 
the  house,  and  it  ordered  the  speuker  to  iBBue  his  warrant  dii-ected 
to  the  eergeant-at-arms  to  arrest  Kilboum,  and  bring  him  before 
the  bar  of  the  house  to  answer  why  he  should  not  be  punielied  for 
contempt.  On  being  brought  before  the  house,  Kilbonrn  peisieted 
in  his  refusal  toanswer  the  question,  and  to  produce  tlie  books  and 
pupei-s  required.  He  was  tliereupon  held  to  be  in  contempt,  uiid 
oominitted  to  the  custody  of  the  eergeant-at-amis  until  he  should 
aignify  his  willingness  to  appear  before  the  committee  and  answer 
the  question  and  obey  the  etthpcmaduoeg  tecum;  and  it  was  ordered 
that  in  tlie  meantime  the  sergeaut-at-arms  slionld  cause  him  to  be 
oonfined  in  the  common  jail  of  the  District  of  Columbia.  He  was 
accordingly  confined  in  that  jail  for  45  days,  wlien  he  was  released 
on  habeas  ecrptta  by  the  chief  justice  of  the  supreme  court  of  the 
District  of  Columbia.  Upon  liis  release  he  sued  the  speaker  of 
the  house,  the  members  of  the  committee,  and  the  Eereeaiit-at-arms 
for  his  forcible  arrest  and  confinement.  The  defendants  pleaded 
the  facts  recited,  to  which  plea  the  plaintiff  demurred.  Tlie 
'demurrer  was  overruled,  and  judgment  ordered  for  the  defendants. 
On  a  writ  of  error  to  the  supreme  conrC  the  judgment  was  affirmed 
as  to  all  the  defendants  exciept  the  sergean t-at-armg.  They,  being 
meuibers  of  the  house,  were  tield  to  be  protected  from  prosecution 
for  their  action.  But,  as  to  Thompson,  the  judgment  was  reversed, 
and  the  cause  i-eniaiided  for  fiirtlier  proceedings.  In  the  supreme 
«onrt  the  qnestions  Involved  received  great  consideration ;  and  it 
was  held  that  the  subject-matter  of  .the  investigation  was  judicial, 
and  not  legislative,  and  that  there  was  no  power  in  Congress,  or  in 
«itlier  house,  on  the  allegation  that  an  msolvent  debtor  of  the 
United  States  was  interested  in  a  private  business  partnership,  to 
investigate  the  affairs  of  that  partnersliip,  and,  consequently,  no 
authority  to  com;^l  a  witness  to  testify  on  the  subject- 

"The  IiouBo  of  representatives,"  said  the  court,  ''has  the  sole 
right  to  impeach  officers  of  the  govennuent,  and  the  senate  to  try 
them.  Were  the  question  of  such  impeacliment  before  either  body 
acting  in  its  appropriate  sphere  on  that  subject,  we  see  no  reason 
to  doubt  the  right  to  compel  the  attendance  of  witnesses,  and  their 
answer  to  proper  qnestions,  in  the  same  manner  and  by  the  use  of 
the  same  means  that  courts  of  justice  can  in  like  cases.  Whether 
the  power  of  puni&hmcnt  in  eitner  house  by  fine  or  imprisonment 
goes  beyond  this  or  not,  we  are  sure  tiiat  no  person  can  be  punished 
lor  contumacy  as  a  witness  before  either  house,  unless  his  testimony 
'is  required  in  a  matter  into  which  that  house  has  jurisdiction  to 
inquire,  and  we  feel  equally  sure  th.it  neither  of  these  bodies  pos- 


^d  by  Google 


613  APPLICATIOK  OP  THE  PACIFIC  BAILWAY  COMMIBSIOK. 

Moaes  the  general  power  of  makine  inqnirT  into  the  private  afFaira 
of  the  citizen."  And  again:  "If  tlie  investigation  which  the 
committee  was  directed  to  make  was  jndicinl  in  its  character,  and 
oonld  onl;  be  properly  and  enccessfnlly  made  by  a  court  of  jnetice, 
and  if  it  related  to  a  matter  wherein  relief  or  redress  conid  be  had 
only  by  a  jadicial  proceeding,  we  do  not,  after  what  has  been  said, 
deem  it  necessary  to  discnss  the  proposition  that  the  power  attempt- 
ed to  be  exercised  was  one  confided  by  the  conBtltution  to  the 
judicial,  and  not  to  the  legislative,  department  of  the  government. 
We  think  it  equally  clear  that  the  power  asserted  is  indicial,  and 
not  legislative."  And  again:  "The  resolntion  adopted  as  a 
seqnence  of  the  preamble  contains  no  hint  of  any  intention  of  final 
action  by  congress  on  the  subject  In  all  the  argument  on  the 
case  no  snggestion  has  been  maae  of  what  the  honse  of  represent- 
atives or  the  Congress  conId  have  done  in  the  way  of  remedying 
the  wrong,  or  securing  the  creditors  of  Jay  Cooke  and  Co.,  or  even 
the  United  States.  Was  it  to  be  Gimply  a  frnitless  iiivestigation 
into  the  personal  affaii-a  of  individnale)  If  so,  the  house  of  repre- 
sentatives had  no  power  or  antliority  in  the  matter  more  than  any 
other  equal  uamhcr  of  gentlemen  intercEtedfor  the  government:  of 
their  conntir-  By  fruitless,  we  mean  that  it  could  result  in  no 
valid  legislation  on  the  subject  to  which  the  inquiry  referred." 

When  the  case  went  back  to  the  supreme  court  of  the  District 
of  Columbia,  and  was  tried,  the  plaintiff  recovered  a  verdict  for 
$60,000  against  the  sergeaut-at-arms.  A  new  trial  having  been 
granted  for  excessive  damages,  the  plaintiff  recovered  on  the 
second  trial  a  verdict  for  $37,500.  This  amount  vine  subsequently 
reduced  to  $20,000,  which  was  paid  bv  order  of  Congress,  with 
interest  and  costs  of  suit.  23  St.  at  Large,  467;  MacArthnr  & 
Mackey,  416,  432. 

This  cisti  wilt  stand  for  all  time  as  a  bulwark  against  the  inva- 
sion of  the  right  of  the  citizen  to  protection  in  his  private  iiffairs 
against  the  nnlimited  scrutiny  of  investigation  by  a  congressional 
committee.  Tlie  courts  are  open  to  the  United  States  as  they  are 
to  the  private  citizen,  and  both  can  there  secure,  by  regular  pro- 
ceedings, ample  protection  of  all  rights  and  intei-ests  which  are 
entitled  to  protection  under  a  government  of  a  written  constitn- 
tion  and  laws. 

The  act  of  Congress  not  only  anthorizes  a  searching  investigation 
WHii  TTHB  '"^^^  *  methods,  affairs,  and  business  of  the  (Antral 
IT  n'm'Dm  Pacific  R.  Co.,  but  it  makes  it  the  duty  of  the  rail- 
BoH TO  u<tinaB  way  commission  to  inqnire  into,  ascertain,  and  report 
"^  whether  any  of  the  directors,  officers,  or  employees  of 

that  company  have  been,  or  are  now  directly  or  indirectly,  inter- 
ested, and  to  what  extent,  in  any  raUroad,  steamship,  tel^raph, 
ezpreas,  mining,  construction,  or  other  bnsiness  company  or  oorpon- 


^dbvGooglc 


AUTHOBITY  OF  PAOIFIO  BAILWAT  OOHHIBSIOV.       613 

tion,  and  with  which  any  agreements,  nndertahinga,  or  leasee  hare 
been  made  or  entered  into.  There  are  over  100  officers,  principal 
and  minor,  of  the  Centml  PaciHc  K.  Co.,  and  nearly  5000  em- 
ployees. It  is  not  unreasonable  to  supuose  that  a  large  portion  of 
these  have  some  iutei-eet,  as  stockliolderB  or  otherwise,  in  some 
other  company  or  corpomtioii  with  which  the  railway  company 
may  havo  an  agreement  of  some  kind,  and  it  would  be  didicalt  to 
state  the  extent  to  which  the  explorations  of  the  commission  into 
the  private  affairs  of  tliese  persons  may  not  go  if  the  mandate  of 
the  act  conld  be  fully  carried  ont.  But  in  accoi-danee  with  the 
principles  declared  in  the  case  of  Kilbourn  v.  Thompson,  and  the 
«qaal]y  important  doctrines  announced  in  Boyd  v.  U.  &.,  the  com- 
mission  is  limited  in  its  inqnirlee  as  to  the  interest  of  these  direc- 
toi's,  oflScei'8,  and  emploj'ees  in  any  other  b'lsinesa,  company,  or 
corporation  to  such  muttera  as  these  pei-sons  may  choose  to  dis- 
olo&e.  They  cannot  be  compelled  to  open  their  books,  and  expose 
aiich  other  business  to  the  inspction  and  examination  of  the  com- 
mission. They  were  not  prohibited  from  engaging  in  any  other 
lawful  business  because'of  their  iiiterest  in  and  connection  with 
the  Central  Pacilic  R  Co.,  and  that  otiier  business  might  aa  well 
be  the  construction  and  management  of  other  railroads  as  the  plant- 
ing of  vines,  or  the  raising  of  fruit,  in  which  some  of  those  direc- 
tors and  officers  and  employees  have  been  in  fact  engaged.  And 
tliey  are  entitled  to  the  same  protection  and  exemption  from  in- 
quisitorial investigation  into  such  basiness  as  any  other  citizens 
cnga^d  in  like  business. 

With  reference  to  the  vouchere  respecting  which  the  principal 
interrogatories  are  propounded,  and  to  which  we  are  asked  to  com- 
pel answers  from  the  witness,  it  is  conceded  by  the  

commission  on  this  motion  that  the  moneys  covered  by  JSmtm^? 
them  were  not  cliarged  against  the  United  States  in™™,i?\„" 
ascertaining  the  net  eaniin^s  of  the  company.  If  such  SmaDui"  "** 
were  the  case,  it  is  difhcnlt  to  see  wliat  interest  the 
United  States  can  have  in  the  disposition  of  those  moneys.  Bo 
tliat  as  it  may,  the  Federal  courts  cannot,  upon  that  concession, 
aid  the  commission  in  ascertaining  how^he  moneys  were  expended. 
'Those  courts  Cannot  become  the  instruments  of  the  commission 
in  furthering  its  investigation.  Their  power,  its  nature  and  ex- 
tent, is  defined  by  the  constitution.  Tlie  government  established 
by  that  instrument  is  one  of  delegated  powers,  supreme  in  its  pre- 
scribed sphere,  but  without  authority  beyond  it.  No  department 
of  it  call  exercise  any  powers  not  specifically  enumerated  or  neces- 
sarily implied  in  those  enumerated.  Such  is  tlie  teaching  of  all  of 
ourgrcat  jurists,  and  tlie  tenth  amendment  decJares  that  "tlie  powers 
not  delegated  to  the  United  States  by  the  constitution,  nor  pro- 
hibited by  it  to  the  States,  arc  reserved  to  the  States  respectively. 


^d  by  Google 


614  APPLICATION  OP  THE  PAOIFIO  RAILWAY  OOKMISBION. 

or  to  tlie  people."  Any  legislation  of  Congi-ess  beyond  the  limilB 
_  of  t!ie  powers  Jelegated  is  an  invasion  of  tlie  rights  re- 

lmm!i.oDinn!  Served  to  the  States  or  to  the  people,  and  is  necessarily 
void.  The  firet  section  of  the  third  article  of  the  con- 
stitDtion  declares  that*' the  judicial  power  of  the  United  States 
shall  be  vested  in  one  supreme  court,  and  ancli  inferior  coni-ts  as 
Congress  may,  from  time  to  time,  ordain  and  eatabliEli."  The  second 
Bectioii  of  the  same  article  declares  that  "  the  judicial  power  shall 
extend  to  all  cases,  in  law  and  eqnity,  arising  under  this  constitn- 
tion,  the  laws  of  the  United  States,  and  treaties  made,  or  wJiicli 
ehal!  be  miide,  niider  their  authority  ;  to  all  cases  affecting  ambas- 
sadors, other  public  ministei's,  and  consuls;  to  all  cases  of  admi- 
ralty and  maritime  jurisdiction  ;  to  controversies  to  whieli  the 
United  States  shall  be  a  party  ;  to  controversies  between  two  or 
more  States  ;  between  a  State  and  citizens  of  another  State  ;  be> 
■  tween  citizens  of  diffei-eot  States;  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  di£fei'ent  States;  and  between 
a  State,  or  the  citizens  thereof,  and  foreign  States,  citizens,  or 
snbjects." 

This  section  was  modified  by  the  eleventh  amendment,  declar- 
ing that  "the  judicial  power  shall  not  be  construed  to  extend  to 
any  suit,  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  by  citizens  of  anotlier  State,  or  by  citizens 
or  snbjects  of  any  foreign  Stiite."  As  thns  modified,  the  section 
states  all  the  cases  and  controversies  in  which  the  judicial  power 
of  the  United  States  can  be  exercised,  except  tiiose  arising  on  a  po- 
tition  for  a  writ  of  habeas  corpus,  which  is  regarded  as  a  suit  for 
one's  pereonal  freedom,*  The  judicial  power  of  the  United 
States  IS  therefore  vested  in  the  courts,  and  can  only  be  exercised 
by  them  in  the  cases  and  controversies  enumerated,  and  in  peti- 
tions for  writs  of  habeas  corpus.  In  no  other  proceedings  can  that 
power  be  invoked,  and  it  is  not  competent  for  Congress  to  require 
Its  exercise  in  any  other  way.  Any  act  providing  for  sucii  exer- 
cise would  be  a  direct  invasion  of  the  rights  reserved  to  the  States 
or  to  the  people;  and  it  would  be  the  duty  of  the  court  to  declare 
it  null  and  void.  Story  says,  in  his  Commentaries  on  tlie  Consti-, 
tution,  tliat  "  tlie  functions  of  the  judges  of  the  courts  of  the 
United  States  are  strictly  and  exclusively  judicial.  They  cannot, 
therefore,  be  called  upon  to  advise  tlie  president  in  any  executive 
measures,  or  to  give  extra-judicial  interpretations  of  law,  or  to  act 
as  commissioners  in  cases  of  pensions  or  other  like  proceedings." 
Section  1777. 

*NoTB  BT  THE  CouBT. — Probably  the  supposed  exception  stated  is  not 

really  one,  and  that  crscs  ariBing  on  a  petition  for  a  writ  of  habta»  ecrpu*  an 
included  in  those  mentioned  in  the  judiciary  BTticIe.  Sec  Louisiana  v.  U.  S,, 
8  Sup.  Ct.  Rep. — decided  by  the  supreme  court  since  this  opinion  was  ren- 


^d  by  Google 


AUTHORITT   OF   FACITIO  KAUWAT  COHHIS&IOK.         615 

The  jndicial  article  of  the  constitntion  mentions  cases  and  con- 
trovetBies.  The  term  "  controversies,"  if  distingnishable  at  all  from 
"  cases,"  is  so  in  tliat  it  is  less  comprehensive  than  the  "^^"  "™ 
latter,  and  inclades  only  suits  of  a  civil  nature.  Chis-  mB'^^^^i*. 
holm  V.  GJeorgia,  2  Dall.  431,  432 ;  1'  Tnek.  Bl.  Comm.  App.  420, 
421.  By  cases  and  controversies  are  intended  the  claims  of  liti- 
gants bronglit  before  the  courts  for  determination  by  ench  regnlar 
proceedings  as  are  established  by  law  or  cnstom  for  the  protection 
or  enforcement  of  rights,  or  the  prevention,  redress,  or  punish- 
ment  of  wrongs.  Whenever  the  claim  of  a  party  nnder  tlie  con- 
stitution, laws,  or  treaties  of  the  United  States  takes  such  a  form 
that  the  jndicial  power  is  capable  of  acting  upon  it,  then  it  has 
become  a  case.  The  term  implies  the  existence  of  present  or  possi- 
ble adverse  parties  whose  contentions  are  submitted  to  the  court 
for  adjudication. 

In  Osljorn  v.  U.  S.,  9  Wheat.  819,  the  supremo  court,  speaking 
by  Chief  Justice  Marshal),  after  quoting  the  third  article  of  the 
constitution  declaring  the  extent  of  the  judicial  power  of  the 
TTnited  States,  said  : 

"  This  clause  enables  the  judicial  department  to  receive  jurisdic- 
tion to  the  full  extent  of  the  constitution,  laws,  and  treaties  of  the 
United  States,  when  any  question  respecting  them  shall  assume 
snch  a  form  that  the  judicial  power  is  capable  of  acting' on  it. 
That  power  is  capable  of  acting  only  when  the  subject  is  sub- 
mitted to  it  by  a  party  who  asserts  his  rights  in  the  form  pre- 
scribed bv  law.  It  then  becomes  a  case,  and  the  constitution 
declares  that  the  jndicial  power  sball  extend  to  al)  cases  ai-ising 
under  the  constitution,  laws,  and  treaties  of  the  United  States." 

In  his  Commentaries  on  the  Constitution,  Mr.  Justice  Story 
says: 

"  It  is  clear  that  the  judicial  department  is  authorized  to  exer- 
cise jurisdiction  to  the  full  extent  of  the  constitution,  laws,  and 
treaties  of  the  United  States,  whenever  any  queBtion  respecting 
them  shall  assume  such  a  form  that  the  jndicial  power  is  capable 
of  acting  upon  it.  When  it  lias  assumed  such  a  form,  it  then  be- 
comes a  case  ;  and  then,  and  not  till  then,  the  judicial  power  at- 
taches to  it.  A  case,  then,  in  the  sense  of  this  clause  of  the  con- 
stitution, arises  when  some  subject  touching  the  constitntion,  laws, 
or  treaties  of  the  United  States  is  submitted  to  the  courts  by  a 
party  who  asserts  his  rights  in  the  form  pi-escribed  by  law." 

And  Mr.  Jnstiee  Story  refers  in  a  note  to  the  speech  of  Mar- 
shall on  tiie  case  of  Kohbins,  in  the  house  of  representatives, 
before  he  became  Cliief  Justice,  which  contains  a  clear  statement 
of  the  conditions  upon  which  the  judicial  power  of  the  United 
States  can  be  exercised.     His  language  was: 

"  By  extending  the  judicial  power  to  ail  eases  in  law  and  equity, 
the  constitution  has  never  been  understood  to  confer  on  that  de- 


^dbyGoOglc 


616  APPLICATION   OF  THE  PAOIFIO   RAILWAY   COHHISSIOn'. 

partment  »ny  political  power  wliaterer.  To  come  within  this 
deBcription,  a  question  mast  aseame  a  legal  form  for  forcDsic  liti- 
gation and  JQOicial  decision.  Tiiere  mnet  be  parties  to  come  into 
coart  who  can  be  reached  hj  its  process  and  bonnd  by  its  power, 
whose  rielits  admit' of  nltimate  decision  by  a  tribunal  to  wbi<^ 
tlioy  are  bound  to  snbmit," 

The  proceeding  to  obtain  testimony  npon  letters  rogatoi^  to  be 
used  in  the  conrts  of  foreign  countries  is  not,  as  snggested  by 
^^^^  counsel,  an  exception  to  this  doctrine.  There  are  cert^ 
onAH  niTi-  powers  inherent  in  all  courts.  The  power  to  preeerTe 
miD  m' poi  order  in  their  proceedings,  and  to  punish  for  contempt 
■imooinTBr.  ^j  ^^.^  authority  are  instances  of  tlii»kind.  And  by 
jurists  and  text  writers  the  power  of  the  courts  of  record  of  one 
country,  as  a  mutter  of  comity,  to  furnisli  assistance,  so  far  as  is 
consistent  with  their  own  jurisdiction,  to  the  courts  of  another  coan- 
try,  by  taking  tlie  testimony  of  witnesses  to  be  used  in  the  for- 
eign country,  or  by  ordering  it  to  be  taken  before  a  magistrate  or 
commissioner,  has  also  been  classed  among  their  inherent  powers. 
"For,  by  the  iaw  of  nations,"  says  Greenleaf,  "conrts  of  jnstice 
of  different  countries  are  bound  mntually  to  aid  and  assist  eacb 
^tlier  for  the  fnithetance  of  jnstice;  and  hence,  when  the  testi- 
mony of  a  foreign  witness  is  necessary,  the  court  before  wliicb  the 
action  is  pending  may  send  to  the  court  within  whose  jurisdiction 
the  witness  resides  a  writ,  eit)ier  patent  or  close,  usually  termed  a 
letter  rogatory,  or  a  commission  sutmutum  vicisaitudinia  obteniu  ae 
injuria  eubaidium,  from  tiiose  words  contained  in  it.  By  tliia  in- 
etrunient  the  conrt  abroad  is  informed  of  the  pendency  of  the 
cause,  and  the  names  of  tlie  foreign  witnesses,  and  is  requested  to 
cause  tljeir  depositions  to  be  taken  in  due  course  of  law,  for  the 
furtherance  of  jnstice,  with  an  offer  on  the  part  of  the  tribunal 
making  tlie  request  to  do  the  like  for  the  otiier  in  a  similar  ease." 
Treatise  on  Evidence,  vol.  1,  §  320.  The  comity  in  behalf  of 
which  this  power  is  exercised  cannot,  of  course,  be  invoked  by  any 
mere  investigating  commission.  And  it  would  seem  that,  by  act  of 
Congress,  the  power  of  the  federal  courts  in  this  I'eapect  has  been 
restricted  to  cases  in  which  a  foreign  government  is  a  party  or 
has  an  interest.     Rev.  St.  §  4071,* 

*NoTE  BT  TBX  CouBT. — Nor  is  there  anythiDg  in  the  juriBdiction  exer- 
ciwd  b;  tbe  United  States  courts  over  proceedingg  of  grand  juries,  or  in  aid 
of  their  deliberations,  or  in  aid  of  proceedioga  to  perpetuate  tAstimony, 
which  niilitateB  ngiuast  the  view  taken  in  tbe  opinion.  The  iadicial  poirer 
of  the  courts  of  the  tTnited  Btates  extending  to  the  cases  and  contrOTersiei 
enumerated  in  the  constitution,  their  jurisdiction  necessarily  covem  all  pro- 
ceediDgs  taken  from  the  formal  commencement  of  such  cases  and  contrO' 
Tersies  to  the  execution  of  the  judgments  rendered  therein.  A  certain  claai 
of  offenders  can  onlj  be  prosecuted  in  the  federal  courts  through  the  indict- 
ment or  presentment  of  b  grand  jury.  Article  5  of  Amendment*.  Over 
therefore,  the  proceedings  of  such  ixidicB  those  courts  can  exercise  jurisdic- 


^d  by  Google 


AUTnORlTV   OF   PACIFIC   EAILWAT   COMMISSION.         617 

Tlie  act  of  Oougress  creating  the  railway  commiBBion  in  terms 
prorideB,  ob  already  stated,  that  it  niaj  invoke  the  aid  of  any  cir- 
finit  or  district  conrt  to  require  the  attendance  of  witnesses,  and 
the  prodnctioa  of  books,  papers  and  documents  relat-  p^,^,^ 
ing  to  the  subject  of  inquiry  ;  and  erniMiwers  the  court,  ^^^j'SJJ 
in  case  of  contumacy  or  refusal  of  persons  to  obey  sub-  d™<m«  in,  ow 
pcQiias  to  tliein,  to  issue  orders  requiring  them  to  ap~ 

Eeiir  befoi-e  the  commissionei-s,  or  either  of  tliem,  and  prodnce  the 
ooks  and  papere  ordered,  and  give  evidence  touching  the  matters 
in  question,  and  to  punisli  disobedience  to  its  orders;  and  does  not 
appear  to  leave  any  discretion  in  the  matter. with  the  conrt.  It 
wonid  seem  as  tbonirli  Congress  intended  that  the  court  should 
make  the  oixJers  songlit  upon  the  mere  i-eqnest  of  the  coniinission- 
ei-8,  without  regard  to  the  natui'o  of  the  inquiry.  It  is  difficult  to 
believe  that  it  conld  have  intended  that  the  court  should  thus  be 
the  mere  executor  of  the  commissionera'  will.  And  yet,  if  the 
commissioners  are  not  bound,  as  thoy  liave  asserted,  by  any  rules 
of  evidence  in  their  investigations,  and  may  receive  hearsay,  ex 
parte  statements,  and  information  of  every  cliaiacter  that  may  be 
orouglit  to  their  attention,  and  the  court  is  to  aid  them  in  tliia 
manner  of  investigation,  thera  can  be  no  room  for  the  exercise  of 
judgment  as  to  the  propriety  of  the  questions  ssked,  and  the  court 
18  left  merely  to  direct  that  the  pleasure  of  the  commissioners  in 
the  line  of  their  inquiries  1)6  carried  out.  But  if  it  was  expected 
that  the  court,  when  its  aid  is  invoked,  should  examine  the  sab- 
ject  of  the  inquiries  to  see  their  character,  so  as  to  be  able  to  de- 
termine the  pi-opriety  and  peitineucy  of  the  questions,  and  the 
propriety  and  necessity  of  producing  the  books,  papero  and  doeu- 
mente  asked  for  before  the  commission,  then  it  would  be  called 
upon  to  exercise  advisory  functions  in  an  administrative  or  politi- 
cal proceeding,  or  to  exercise  judicial  power.  If  the  former,  they 
cannot  be  invested  in  the  court;  if  the  latter,  the  power  can  only 
be  exorcised  in  the  cases  or  controversies  enumerated  in  the  con- 
stitution, or  in  oases  of  habeas  corpus. 

The  provision  of  the  act  authorizing  the  courts  to  aid  in  the  in- 
Testigation  in  the  manner  indicated  nvist  therefore  be  adjudged 

tioD,  aud  in  aid  of  their  deliberatioDS  con  iesae  process  and  compel  the  at- 
tendance of  witnesses,  and  require  them  to  answer  any  proper  questions  pro- 
pounded to  them,  and  in  case  of  refusal  ma;  punish  them  as  for  a  contempt. 
Proceedings  lo  perpetuate  testlraonj,  where  litigation  is  expecled  or  ap- 
prehended, %re  within  the  ordinar;  jurisdiction  of  courts  of  equity,  and 
come  under  the  designation  of  "  coses  in  equity  "  in  the  constitution.  The 
nature  and  requisites  of  a  bill  filed  for  that  purpose  are  fully  described  in 
Storj,  Eq.  PI.  c.  7.  It  must  state  the  subject  in  relation  to  which  the  pUin~ 
tiff  desires  to  preserve  testimony,  in  what  way  he  is  interested  in  that  sub- 
ject, the  names  of  the  contemplated  or  apprehended  litigants  who  are  named 
as  defendants,  and  Che  interests  they  have  in  the  subject,  or  claim  to  have; 
.  and  a  eubpisaa  must  be  issued  thereon  and  served  as  in  other  cases  in  equity. 


^d  by  Google 


618  APPLICATION  OF  THE   PACIFIC   EAILWAT  COMHIBSIOK. 

Void.  Tlio  federal  conrts,  under  the  conetitntioD,  cannot  be  made 
SAn  BKui  t^li^  "i<ls  to  any  investigation  by  a  commiBBion  or  » 
'""'■  committeB  ioto  the  affairs  of  any  one.     If  rights  are  to 

be  protected  or  wrongs  redressed  by  any  investigation,  it  must  be 
conducted  by  regular  proceedings  iu  the  oonils  of  justice  in  easea 
anthorized  by  the  constitution. 

The  inability  of  the  conrts  of  the  United  States  to  exercise 
power  in  any  otiier  than  regular  judieial  proceeding  was  decided 
HATinurtciM  hi  Hayburn's  Case  as  early  as  1792.  2  Dall.  409.  In 
"*'™"''  March  of  that  year,  Congress  passed  an  act  providing 
that  invalid  otticere,  soldiers,  and  seamen  of  the  Hevolution  slionld 
he  entitled  to  ceitaiii  pensioTis  proportionate  to  the  extent  of  their 
disability,  and  devolved  -upon  the  circuit  court  of  the  tJniled 
States  of  the  district  where  the  invalids  resided,  the  duty  of  ex- 
amining the  proofs  presented  of  the  nature  and  extent  of  the  dis- 
ability, and  of  determining  what  amount  of  their  monthly  pay 
Vonld  be  eqnivnlent  to  the  disability  ascertained,  and  to  certify  the 
same  to  the  secretary  of  war,  who  was  to  place  the  names  of  the 
applicants  returned  on  the  pension  list  of  the  United  States  in 
conformity  thereto,  unless  where  he  had  cause  to  suspect  imposi- 
tion or  mistake,  in  which  case  he  was  authorized  to  withhold  the 
name  of  the  applicant  from  the  list,  and  report  the  same  to  Con- 
gress at  its  next  session,  1  St,  at  Large,  244,  §§  2,  4.  Every 
circuit  judge,  except  one  who  did  not  have  the  question  before 
him,  was  of  opinion  that  the  law  was  unconstitutional  and  void. 
From  a  etatemont  of  Mr.  Justice  Curtis,  in  a  note  appended  to 
the  report  of  the  cjise,  it  would  seem  that  the  jndgcs  were  of 
opinion  that  the  power  devolved  upon  them  by  the  act  was  not  ju^ 
dicial  in  the  sense  of  the  constitution,  and  if  judicial,  that  their 
decisions  could  not  ba  subject  to  the  revision  of  the  secretary  of 
war,  or  of  tlie  Congress  of  the  United  States.  Plainly,  the  power 
exercised  by  them  in  determining  the  extent  to  which  the  invalids 
were  entitled  to  the  pensions  provided  upon  the  proof  produced 
W.1S  in  its  nature  judicial,  for  it  required  examination  of  evidence 
and  judgment  thereon  ;  but  it  was  not  judicial  in  the  sense  of  the 
constitution,  under  which  judicial  power  can  be  "exercised  only  in 
the  cases  enumerated  in  that  instrument.  The  judges  forwarded 
their  conclusions  to  President  Washington,  and  tue  act  was  Eobee- 
quently  repealed. 

A  suit  being  afterwards  brought  against  one  Tale  Todd  to  re- 
cover back  the  amount  of  a  pension  paid  to  iiim,  tlie  question  of 
the  validity  of  tlio  act  came  before  the  supreme  court,  and  jndg- 
ment  was  rendered  in  favor  of  the  United  States  for  tlie  money. 
Tiiis  case,  will  be  found  stated  at  length  by  Chief  Justice  Taney 
in  a  note  to  the  report  of  U.  S.  v.  Ferreira,  13  How.  52.  "  This 
decision,"  siiid  that  great  ciiief  justice,  "lias  ever  since  been  re- 
garded as  constitutional  law,  and  followed  by  every  department  of 


^d  by  Google 


AUTHOBITT  OF   PAOIFIO   RAILWAY   COMMISSION.         Q19 

the  government,  bj  the  legislative  and  executive  branches  as  well 
ae  the  judiciary."    Gordoo  v.  U.  S.,  117  TJ.  S.  697,  703. 

The  conclusion  we  liave  thns  reached  disposes  of  the  petition  of 
the  railway  commiseionei-B,  and  renders  it  unnecessary 
to  consider  whether  the  interrogatories  propounded  FmraiLco™™ 
TFere  proper  in  themselves,  or  were  sufficiently  met  by  Si™ii"w*to 
the  answers  given  by  Mr.  Stanford,  or  whether  any  of  *"'*"'"™°"- 
them  were  open  to  objection  for  the  assumptions  they 
made,  or  the  imputations  they  implied.  It  is  enough  that  the  fed- 
eral courts  caiinut  be  made  the  instruments  to  aid  tlie  commission* 
erB  in  their  investigations.  It  also  renders  it  unnecessary  to  make 
any  comment  upon  tlie  extraordinary  position  tnken  by  them  ac- 
cording to  the  statement  of  the  respondent,  to  which  we  have 
referred,  that  they  did  not  regard  tliemselvee  bound  in  tlieir  exam- 
ination by  the  ordinary  rules  of  evidence,  but  would  receive  hear- 
say and  ex  parte  stateinents,  surmises,  and  information  of  every 
character  that  might  be  called  to  tlieir  attention.  It  cannot  be  that 
the  courts  of  tlie  United  States  can  be  used  in  furtlienmee  of  in- 
vestigntiona  in  which  all  rules  of  evidence  may  be  thus  disregarded. 

The  motion  of  the  district  attorney  for  a  peremptory  order  upon 
the  wittiesB  to  answer  tiie  interrogatories  as  set  forth  in  the  peti- 
tion of  the  railway  comrnisaion  is  therefore  denied,  and  the  order 
to  show  ciinse  is  discharged. 

Sawyeb,  J.  {aonourring). — I  fnlly  concur  in  the  reasoning  of 
the  circuit  justice,  and  the  oonc^nsions  reached,  bnt  I  deem  it 
proper  to  present  some  further  views  in  snpportof  our  decision. 

It  is  necessary  to  undei'stand  the  exact  legal  relation  of  the  Cen- 
tral Pacific  R,  Co.  to  the  United  Slates,  in  order  to  correctly 
appreciate  the  constitutional  powers  of  Congress,  and  of  „„  ..^.  „, 
the  commission  acting  under  its  autliority,  over  it.  """y-J"??^ 
The  Central  Pacific  B,  Co.  ia  a  private  corporation,*'*'™' 
created,  ami  existing  under  the  laws  of  the  State  of  California.  It 
derived  none  of  itS  corporate  faculties  or  franchises  from  the 
United  States.  It  is  in  no  way  subject  to  the  control,  or  laws, 
of  the  United  States,  except  bo  /ar  as  it  is  subject  to  regulation,  as 
an  instrument  of  foreign,  or  interstate  commerce,  or  their  anthor- 
ity  to  establisii  post-roads,  or  their  war  powers,  in  pursuance  of 
the  constitutional  provisions  on  the  subject,  or  such  regulation,  as 
is  authorized  by  the  terms  of  the  contract  found  in  the  acts  of  Con- 
gress of  1862  and  1864,  accepted  by  the  railroad  company  as  a 
contract.  The  Centr.-vl  Pacific  E.  Co,  is  simply  an  artificial  per- 
son created  with  certain  faculties  by  the  Stnte  of  California,  and 
it  ptands  in  relation  to  the  United  States,  wicliin  the  scope  of  its 
faculties  in  precisely  t!ie  same  situation  as  a  natural  person  under 
like  circumstances.  The  United  States  have  no  more,  and  no  less, 
power  over  it,  than  they  would  have  over  a  natural  person  in  the 


^dbvGoO^lc 


620  APPLIOATIOIT   OP  THK   PACIFIC    RAILWAY  COMMISSION, 

same  eitnatlon.  The  coDtrftct  might  as  well  have  been  made  with 
a  natural  person  as  with  a  corporation.  Had  the  grantee  under 
the  acta  of  Congress  been  a  natural  person,  instead  of  the  Central 
Pacitic  R.  Co.,  accepting  the  terms  of  tlie  contract  tendered  bj 
the  act,  and  conetrncting  the  road,  and  performing  the  conditions 
of  tlie  contract,  tlie  right  of  the  United  States  wonld  have  been 
precisely  such  as  they  are  now,  with  respect  to  the  Central  Pacific 
K.  Co., — no  more,  and  no  less.  Since  all  the  conditions  of  the 
contract  on  tlte  part  of  the  Central  Pacific  K.  Co.  have  been  f  nlly 
performed  in  all  respects,  so  far  as  they  are  required  to  be  per-  ' 
formed  for  that  purpose,  the  title  to  the  lands  granted  lias  fnlly 
vested,  and  tlie  govenuneut  bonds  having  been  delivered,  the  Cen- 
tral Pacific  K.  Co  has  become  the  absolute  owner  of  the  road  and 
all  its  appurtenances  together  with  the  lands  granted  and  bonds 
issued  subject  only  to  the  mortgage  to  secure  the  payment  of  the 
bonds,  issued  by  itself,  and  the  lien  of  the  goveminent  to  secure 
its  advances,  in  all  i-espects  in  the  same  manner,  and  to  the 
same  extent,  as  if  it  wera  a  natural  person  similarly  situated. 
The  United  Stutes  have  no  further  control  over,  or  interest  in,  snid 
lands,  or  bonds.  The  United  States,  in  sections  5  and  6  of  tlie 
act  of  1863,  and  section  5  of  the  act  of  1864,  tendered  tlie  railroad 
companies  a  contract,  and,  when  accepted,  there  was  a  contract 
between  the  parties  upon  the  terms  specified,  obligatory  upon  both, 
and  which  could  not  be  changed  by  either,  without  the  consent  of 
the  other.  Says  the  supreme  court,  in  U.  S.  v.  Gailroad  Co.,  118 
V.  S.  238,  1038,  after  quoting  these  piovisions : 

"  Tliese  sections,  taken  together,  constitute  the  contract  between 
the  United  States  and  the  appellee.  U.  8.  v.  Railroad  Co.,  91  U. 
8.  72  ;  Sinking  Fund  Cases,  99  U.  S.  700-718 ;  Railroad  Co.  v.  U. 
6,,  104  U.  S.  662.  This  contract  is  binding  on  the  United  States, 
and  they  cannot,  without  the  consent  of  the  company,  change  its 
terms  by  any  subsequent  legislation.  Sinking  Fund  Cases, 
supra." 

Being  the  owner,  with  the  title  fully  vested  in  it,  the  company 
could  dispose  of  the  lands  and  bonds,  at  its  own  will  and  pleasure, 
in  the  same  manner  and  to  the  same  extent,  and  with  tlie  same 
effect,  as  if  the  contract  had  been  between  two  natural  persons, 
without  being  liable  to  render  any  other  account  to  the  United 
States  than  it  could  be  called  upon  to  render,  had  the  United 
St.ites  been  an  nasociation  of  an  equal  number  of  natural  persons. 

It  is  consequently  a  matter  of  no  legal  concern  to  the  United 
States  what  disposition  the  company  made  of  the  lands,  or  bonds, 
and  they  have  no  right  to  inquire  into  the  matter  of  their  disposi- 
tion, in  any  other  mode,  or  under  any  other  circum stances,  than 
tliey  could  have  been  inquired  into  had  the  corporation  and  the 
United  States  been  two  natural  persons. 

The  relation  of  the  Central  Pacitic  R.  Co.  to  the  United  States, 


^d  by  Google 


AVTHOBirr  07  PAOIFIO  RAILWAT  OOUaSSION.        631 

therefore,  nnder  the  contract,  db  a  contract,  iB  now  eimply  that  of 
debtor  and  creditor,  with  certain  covenants forBerrieeBonitB com- 
pleted road,  still  to  ije  performed  by.  the  latter,  with  the  debt,  and 
performance  of  those  covenants  Becured  by  certain  specific  liens 
npon  portions  of  the  property  of  tlie  debtor.  Tliey  stand  npon  an 
eqnal  footing  as  contractoi's,  and  upon  the  same  footing  as 
debtor  and  creditor  ;  as  if  the  indebtedness,  obligations,  and  secnr- 
ities  existed  between  two  natnral  persons.  This  is  clearly  the 
result,  as  establislied  by  the  supreme  court  in  the  Sinking  Fund 
Cases,  which  has  by  a  divided  court,  extended  the  power  of  Con- 
gress further  in  that  direction  than  any  other  case,  and,  as  it  seems 
to  ns,  to  the  utmost  admissible  limit.  In  those  cases  the  chief 
instice  who  announced  the  opinion  of  the  majority  of  the  court, 
in  speaking  of  the  Union  Pacific  Company,  which  is  a  corporation 
created  by  Congress  itself,  said  : 

"TheUnited  States  occupy  toward  this  corporation  a  twofold  re. 
.  lation, — that  of  sovereign,  and  that  of  creditor.  U.  S.  v.  Railroad 
Co.,  98  U.  S.  569.  Their  rights  aa  a  sovereign  are  not  crippled  be- 
cause they  are  creditoi's,  and  their  privileges  as  creditors  are  not  en- 
larged by  the  charter  because  of  their  sovereignty.  Tliey  cannot,  as 
creditoi-B,  demand  payment  of  what  is  due  tiiem  before  the  time 
limited  by  tiie  contract.  Neither  can  they,  as  sovereign  or  credi- 
tors, require  the  coinpnny  to  pay-the  other  debts  it  owes,  before 
they  mature."     99  IT.  S.  724. 

As  to  the  Central  Pacific  K.  Co.  the  United  States  do  not 
even  occnpy  the  relation  of  sovereign,  escept  so  far  as  its 
ro.id  extends  through  the  territories,  and  then  only  as  to  that 
part  of  the  road  witliin  a  territoi-y  which  is  now  only  that  part 
m  the  territory  of  Utah,  and  so  far  as  its  authority  to  regulate 
Commerce  witli  foreign  nations  and  between  the  States  is  con- 
cerned, and  these  powera  are  merely  police  powere.  The  organiza- 
tion of  the  Central  Pacific  K.  Co.  is  under,  and  by  virtue  of 
the  laws  of  another  soveteignty,  and  its  habit;it  is  in  the 
State  of  California,  beyond  the  jurisdiction  of  the  United  States, 
except  so  far  as  it  is  subject  to  the  power  of  Congress  nnder  some 
special  grant  of  power,  or  its  control  is  necessary  to  carry  ont  some 
power  specially  granted.  We  look  in  vain  for  any  power  to  deal 
with  it,  except  the  power  to  regulate  its  acts,  as  an  instrument  of 
interstate  or  foreign  commerce,  or  such  power  aa  Congress  may 
have  over  it  under  its  authority  to  estabhsh  post-roads,  or  nnder 
its  war  powera.  The  relation  of  debtor  and  creditor  arising  under' 
a  contract  is  but  a  private  relation.  It  is  not  a  sovereign  or 
ffovernmental  relation.  And  the  power  reserved  in  the  acts  of 
Congress  to  repeal  or  amend  the  act  as  to  the  Central  Pacific  B. 
Co.  coald  only  extend  to  amendment,  so  far  as  it  operated  as 
a  law,  and  not  as  a  contract,  and  then  not  to  affect  the  terms  of 


^d  by  Google 


«22  APPLICATION  Of  THE  PaOIPIO  SAILWAT  OOUOSSIOR. 

the  contract  after  it  had  beoome  executed,  and  rights  had  Te>to4 
under  it. 

If,  as  said  by  the  enpreme  court,  the  *'  privilefres  '*  of  the  United 
States,  "  ae  creditors,  are  not  enlarged  hy  the  uiarter,  becaoee  of 
their  sovereignty,"  then  no  greater  powers  can  be  conferred  npon 
the  comiuisaion  appointed  by  CongieBs  in  this  case  than  Congreae 
•conld  have  conferred  apou  them  for  the  investigation  of  matters 
between  debtors  and  creditors,  w)io  are  natnral  persons,  citizens  of, 
And  residing  within  States.  Conld  a  private  creditor  autliorize  or 
lawfully  make  a  compulsory  examination  of  the  character  pro- 
Tided  for  in  this  act  into  the  private  aSaii-s  of  his  debtor?  Or 
xwuld  Congress,  within  a  State,  under  its  limited  sovereign  powers 
in  a  State,  authorize  a  private  creditor  to  make  such  an  ezamioa- 
t^oa  of  his  debtor's  affairs,  and  call  npon  the  courts,  in  like  man- 
ner, to  compel  answers!  Can  the  government  do  for  itself,  as 
'Creditor  witliin  a  State,  what  it  cannot  do  for  private  creditorsi 
If  not,  and  "  the  privileges  of  the  United  States  ae  creditors  ar« 
not  enlarged  by  the  charter  because  of  their  sovereignty,"  upon 
what  principle  can  the  compnlsory  examination  attempted  to  be 
authorized  oy  this  act  be  sustained)  I  can  find  none.  This 
investigation,  so  far  as  the  questions  under  consideration  are  codt 
cemed,  is  not  for  a  sovereign,  governmental  parpose,  bat  for  the 
purpose  of  further  securing  a  private  debt,  not  yet  matured,  alreadjF 
secured  by  a  contract,  acceptable  to,  and  accepted  by,  the  creditor 
at  the  time  it  was  made.     And' — 

"  The  United  States  cannot  any  more  than  a  State  interfere  with 
private  rights  except  for  legitimate  governmental  purposes.  They 
-are  not  inclnded  within  the  constitutional  prohibition  which  pre- 
vents States  from  passing  laws,  impairing  the  obligation  of  con- 
tracts, but  equally  with  the  States  they  are  prohibited  from  depriv- 
ing persons  or  corporations  of  property  without  due  process  of 
law.  Tliey  cannot  legislate  back  to  themselves,  without  making 
compensation,  the  lanas  they  have^iven  this  corporation  to  aid  in 
the  construction  of  its  railroad.  Neither  can  they,  by  legislation 
compel  the  corporation  to  discharge  its  obligations  in  respect  to 
the  snbsidy  bonds  otherwise  than  according  to  the  terms  of  the 
contract  already  made  in  that  connection.  The  United  States  are 
as  mncli  bound  by  their  contracts  as  are  individuals.  If  they  re- 
pudiate their  obligations  it  is  as  much  repndiation,  with  all  Uie 
wrong  and  reproach  that  term  implies,  as  it  would  be  if  the  re- 
pudiator  had  been  a  State  or  a  municipality  or  a  citizen.  No 
change  can  be  made  in  the  title  created  by  the  grant  of  the  lands 
or  in  the  contract  for  the  snbsidy  bonds  without  the  consent  of 
the  corporation.  All  this  Is  indisputable."  The  Chief  Justice  in 
the  Sinking  Fund  cases,  99  U.  S.  718,  719. 

Having  ascertained  the  relation  of  the  parUes  to  eactt  other  to 


^d  by  Google 


AUTHORITY   OF   PACIFIC   RAILWAY   00MMI8BI0H.         ^ 

be  tliat  of  contractore, — that  of  debtor  and  creditor  hj  contract 

simply  in  the  same  aense  as  if  both  were  natnral  persona 

and  private  citizens, — tlie  question  arises  as  to   what  adtbour  ow, 

anthority  Congress  has  within  a  State,  through  com-  ^STSSm°3^ 

miBsion era  appointed  by  it,  to  investigate  the  private  dStou. 

affaire  of  a  mere  contract  debtor,  and  ascertain  what  he 

has  done  with  his  own  money  or  what  he   propoees  to  do  with 

it, — 'wbethei'  he  is  making  judicious  investment  of  bis  money  or 

not, — aa  bearing  upon  his  probable  ability  to  pay  his  debt  some 

jean  in  the  future,  when  it  shall  have  matured? 

Hr.  Justice  Field  well  said  in  the  Sinking  Fund  cases: 

"When,  therefore,  the  government  of  the  United  States  entered 
into  the  contract  with  tlio  Central  Pacitlc  K.  Go.  it  could  no 
more  than  a  piivsite  corporation,  or  a  private  individual,  final- 
ly construe  and  determine  the  extent  of  the  company's  rights 
i^id  liabilities.  If  it  had  cause  of  complaint  against  the  company 
it  could  not  undertake  itself,  by  legislative  decree,  to  redress  the 
grievaDces,  bnt  was  compelled  to  seek  redress  as  all  other  civil 
corporations  are  compelled,  thi-ougb  the  judicial  tribunals.  If  the 
company  was  wasting  its  property,  of  which  no  allegation  is  made, 
or  impairing  the  security  of  tne  government,  the  remedy  by  suit 
was  ample,  to  declare  tiiat  one  of  two  contracting  parties  is  en- 
titled, under  the  contract  between  them,  to  the  payment  of  a 
greater  sum  than  is  admitted  to  be  payable,  or  to  other  or  greater 
security  than  that  given,  is  not  a  legislative  fnnction.  It  is  judi- 
cial action ;  it  is  the  exercise  of  judicial  power,  and  all  such  power, 
witli  respect  to  any  transaction  arising  under  the  laws  of  the 
United  States,  is  vested  by  the  constitution  in  the  courts  of  the 
oountry."     99  U.  S.  759j  760. 

See,  also,  authorities  cited. 

I  do  not  understand  that  this  doctrine  is  questioned  by  the 
majority  of  the  court.  They  only  differed  as  to  its  applicability 
in  that  particular  case.  I  do  not  understand  that  the  Centra 
Pacific  R.  Co.  is  chained  with  a  violation  of  any  of  the  terms 
of  its  contract,  unless  it  be  claimed  that  it  has  failed  to  pay 
over  the  full  amount  of  percentage  required  by  the  contract 
of  the  net  earnings  of  the  road.  If  it  has  failed  in  this  matter  it 
is  not  a  matter  of  any  legal  concern  to  the  government  what  the 
company  has  done  with  its  own.  If  it  has  failed  in  this  particular, 
and  there  is  reason  fot-  sustaining  an  action,  the  proper  mode  of 
procedure  for  ascertaining  the  truth,  and  enforcing  the  obligation, 
if  violated,  is  to  institute  a  suit  alleging  the  facts,  and  have  an 
investigation  in  due  course  of  judicial  inquiry,  and  obtain  a  judg- 
ment for  any  amount  improperly  withheld.  If  the  full  amount 
has  not  beenpaid  over  it  matters  not  to  the  government,  how  the 
balance  has  been  expended.     The  company  is  liable  like  any  other 


^d  by  Google 


624  APPtlCATION  OP  THE  PACIFIC  RAILWAY  COMHIS8I0H. 

debtor  upon  a  contract,  and  not  otherwise.  But  if  it  be  desirable 
to  ti-aee  it,  and  subject  tlie  Bpecitic  fund  to  the  ueea  contemplated, 
and  tiiero  be  eufHcient  ground  for  so  doing,  the  courts  are  the 
proper  tribunals  in  which  to  effect  that  object.  80,  also,  if  there 
De  a  commission  of  waste  upon  the  property  upon  which  the  debt 
is  secured,  the  courts  afford  the  proper  remedy  by  a  suit  in  equity 
to  restrain  the  waste.  These  are  tlie  means  afforded  by  the  cod- 
Btitution  and  laws  to  private  parties  for  redrcseing  their  wrongs. 
And  tliere  is  no  different  remedy  provided  for  the  ^ovei-nment  on 
its  contracts.  In  such  proceeding  there  woald  be  allegations 
wliich  would  inform  the  defendant  what  it  is  called  upon  to  meet. 
In  the  language  cited  by  Mr.  Justice  Field,  from  a  case  in  the 
supreme  court  of  MassachtiEetts,  "like  all  otiier  matters  involving 
a  eontrovei-sy  concerning  pnblic  duty  and  private  rights,"  it  would 
in  such  proceedings  "be  adjusted  and  settled  in  the  i^egular  tri- 
bunals wliere  questions  of  law  and  fact  are  adjudicated  on  fixed, 
established  principles,  and  according  to  the  forms  and  nsnges  best 
adapted  to  secure  the  impartial  administration  of  justice.  Sink- 
ing Fund  cases,  99  U.  S.  761.  A  bill  in  equity  that  seeks  a  dis- 
covery upon  geneial,  loose,  and  vague  allegations,  is  styled  a  "fish- 
ing bill,  and  sucli  a  bill  would  be,  at  once  dismissed  on  that 
ground.  Story,  Eq.  PI.  §  325,  and  cases  cited.  A  general,  roving, 
offensive,  inquisitorial,  compulsory  investigation,  conducted  by  a 
commission  without  any  allegations,  upon  no  fitted  principles,  and 
governed  by  no  rules  of  law  -or  of  evidence,  and  no  restrictions 
except  its  own  will  or  caprice,  is  unknown  to  onr  constitution  and 
laws  and  such  an  inquisition  would  be  destructive  of  the  rights 
of  tiio  citizen  and  an  intolerable  tyranny.  Let  the  power  once  l)e 
established,  and  tliere  is  no  knowing  where  the  practice  under  it 
would  end. 

These  principles,  it  appears  tome,  are  established  beyond  further 
controversy  in  the  case  of  Kilbourn  v.  Thompson,  103  U,  S,  168. 
At  the  time  of  the  failure  of  tlie  bankers  Jay  Cook  &  Go.  they 
were  largely  indebted  to  the  United  States  for  moneys  deposited 
by  the  secretary  of  the  navy  with  a  branch  of  the  house  in 
London.  It  was  claimed  that  Jay  Cook  &  Co.  were  largely  inter- 
ested in  a  company  dealing  in  real  estate  at  Washington,  known 
as  tlie  "  Keal-estatc  Pool,"  and  that  a  considerable  amount  of  their 
funds  was  invested  in  that  speculation.  It  seems  to  have  been 
claimed,  also,  that  tiiei'e  was  sometiiing  in  the  nature  of  a  trust  in 
favor  of  the  government  in  tiie  moneys  of  Cook  &  Co.  that  had 
gone  into  the  pooh  A  committee  was  appointed  to  investigate 
the  matter  ana  trace  the  money,  with  power  to  send  for  persons 
and  papers.  Kilbonm,  supposed  to  be  one  of  the  mauageia  of 
the  pool,  was  summoned  for  examination.  He  refused  to  testify 
on  toe  ground  that  the  house  had  no  authority  in  this  maoDer  to 


^d  by  Google 


AUTHOBITT   OF  PACIFIC   BAJLWAT  COMM193ION.  625 

inqaire  into  the  private  affaire  of  the  debtors  of  tlie  govemment 
ana  otliers  conuected  with  them.  He  was  thereupon,  upon 
procecdinve  for  that  pnvpose,  committed  hy  the  liouse  for  con- 
tempt, and  held  in  custody  45  days.  After  his  release  he  sued 
the  sei'geant-atarma  of  the  house  and  the  investigating  committee 
for  false  impiisonment,  and  recovei'ed,  on  the  first  trial,  a  jadg- 
ment  of  $60,000,  and  on  a  second  trial  $37,500,  afterward  re- 
duced to  $20,000  on  the  gronnd  that  the  house  had  no  authoritj 
to  make  a  compulsory  investigation  or  to  commit  him  for  con- 
tempt, for  tiie  reason  that  these  fanctioas  were  judicial  in  their 
nnture,  ov'er  which  the  courts  alone  can  Lave  jurisdiction.  When 
tlie  case  was  before  the  supreme  conrt  it  said  in  the  course  of  its 
decision  : 

"  If  the  United  States  is  a  creditor  of  any  citizen,  or  of  any  one 
else  on  whom  process  can  be  served,  the  asnal,  the  ouly  legal 
mode  of  enforcing  payment  of  the  debt,  is  by  a  resort  to  a  court 
of  justice.  For  tiiis  purpose,  atnouo;  others,  Congress  has  created 
courts  of  the  United  States,  and  officers  have  been  appointed  to 
prosecnte  the  pleas  of  the  government  in  these  courts.  103  U.  S. 
193. 

Again: 

"What  waE  this  committee  charged  to  dot  To  inqnire  into  the 
natni'e  aud  histoi-y  of  this  real-estate  pool.  How  indefinite. 
What  was  the  real-estate  pool  ?  Is  it  charged  with  any  crime  or 
offence?  If  so,  the  courts  alone  can  punish  the  members  of  it. 
Is  it  charged  witli  fraud  against  the  government?  Here,  again, 
the  courts,  and  they  alone,  can  afford  a  i-emedv.  Was  it  a  corpora- 
tion whose  powers  Congi-ess  could  repeal?  There  is  no  saggestion 
of  the  kind.''     Id.  195. 

Again; 

''In  looking  to  the  preamble  and  resolutions  under  which  the 
committee  acted,  before  which  Rilbourn  refused  to  testify,  we  are 
of  opinion  that  tlie  house  of  representatives  not  only  exceeded  the 
limit  of  its  own  authority,  but  assumed  a  power  which  could  only 
be  properly  exercised  by  another  branch  of  the  government  be- 
cause it  was  in  its  nature  clearly  judicial."     Id,  192. 

And  again,  after  stating  some  particulars  to  which  the  powers 
of  the  hoDse  to  punish  extends,  the  court  added  : 

"  WJietJicr  the.  power  of  punishment  in  either  house,  by  fine  or 
imprisonment,  goes  beyond  this  or  not,  we  are  sure  that  no  person 
can  be  punislied  for  contumacy  as  a  witness  before  either  house 
unless  his  testimony  is  required  in  a  matter  into  which  the  house 
has  inrisdiction  to  ingnire,  and  we  feel  equally  sure  that  neither 
of  these  bodies  possesses  the  general  power  of  making  inquiry  into 
the  private  affairs  of  the  citizen."     Id.  190. 

After  a  thorough  discussion  of  the  case  and  ao  elaborate  exam- 
si  A.  A  £.  R  Cm.— 10 


^d  by  Google 


636  APPLIOATIOH   OF  THE  FAOIFIO   BAILWAT   COMMISSION. 

inatiou  of  the  antlioricJeB,  the  conrt  announced  its  nnauimons  eon- 
cliiBJoii  in  tlie  following  terms: 

*'  We  ure  of  opinion,  for  these  reaaona,  that  the  reeolntUm  of  the 
honee  of  representatives,  antiiorizing  the  iBVestigation,  was  in 
excess  of  tlte  power  conferred  on  that  body  b;  the  constitntion  ; 
tliat  the  committee,  tlierefore,  had  no  lawful  authority  to  require 
Eilboarn  to  testify  as  a  witness  bevond  wliat  he  volnntarilv  chose 
to  tell ;  that  the  orders  and  i-esolatione  of  tlie  Louse  and  tlie  war- 
rant of  the  speaker,  under  which  Kilbourn  was  imprisoned,  are,  in 
lilce  manlier,  void,  for  want  of  jurisdiction  in  that  body,  and  that 
fais' imprisonment  is  without' any  lawful  authority."     Id.  196. 

Id  my  jodgment  the  principle  establiebed  here  covers  fully  the 
case  under  cousideration.  It  estahliBhea  the  poBition,  that  the 
house  of  representativeB  lias  no  autiiority  or  innsdiction  to  make 
a  compnlsory  inquiry  into  the  disposition  of  the  funds  of  a  conven- 
tional debtor  of  the  United  States;  to  inquire  what  thie  debtor, 
upon  a  contract,  has  done  with  his  money,  or  to  inquire  into  the 
[wivate  affairs  of  their  debtors  upon  contract,  and  those  dealing 
with  such  debtors. 

It  is  urged  that  the  decision  only  goes  to  the  point  that  prirate 
parties  dealing  with  the  debtor  cannot  be  examined  by 
micmr^m  the  house ;  that  the  principle  does  not  extend  to  the 
rowat^  debtor  himself,  and,  especially,  to  the  Central  Pacific 
Company,  which  is  but  a  corporation,  and  that  tlie 
present  investigation  only  extends  to  what  disposition  it  has  made 
of  the  bonds  and  proceeds  of  lands  received  from  the  government, 
and  th&  money  arising  from  operating  its  road.  But  there  is  no 
each  limitation  in  the  ruling.     Says  tlie  court: 

"Can  the  rights  of  the  pool  or  of  its  menibere,  or  the  rights  of 
the  debtor,  ana  o£  the  creditor  of  the  debtor,  be  determined  by  the 
report  of  a  committee,  or  by  an  act  of  Congress}  If  they  cannot, 
what  authority  has  the  house  to  enter  upon  this  investigation  into 
the  private  affaire  of  individnale  who  uold  no  office  under  the 
government  i"     Id.  195. 

■  That  the  Central  Pacific  Bailroad  is  a  corporation  in  no  way  Ije- 
holden  to  the  United  States  for  its  corporate  faculties  and  frao- 
'obises,  and  not  a  natural  person,  cannot  affect  the  question.  It  is 
but  an  aggregation  of  natnral  persons,  and  is  as  much  a  private 
'party  as  if  its  constituents  were  united  in  a  mere  partnership,  in- 
'stead  of  a  corporation.  This  principle  was  maintained  in  the 
'Railroad  Tax  Cases,  9  Sasvy.  166,  and  recognized  by  the  supreme 
court  at  the  argument  of  the  same  cases  on  appeal.  The  bonds 
'issued,  and  the  lands  granted,  as  we  have  before  seen,  under  the 
^authorities  cited,  upon  the  completion  of  the  road,  and  the  epeeific 
earnings  of  the  road  thereafter  arising,  were  the  absolute  property 
'of  the  Central  Pacific  It.  Co.  in  which  the  United  States  had 


^dbyGooglc 


AnTHOBITT  OF  PACIFIC  BA.ILWAT  COMMISSION.         VSff 

no  legal  concern  wliatever,  except  eo  far  as  tbeir  lien  by  ooO^^ 
tract  covers  them.  There  is  no  element  of  a  trnat,  pnblic  oV 
otherwise,  in  the  case,  as  Bometimee  claimed,  except  in  snck 
«ense,  as  any  cotnmon  carrier,  whether  bj  ox  team,  mnle  team, 
horse  team,  railway  or  ateum-ehip,  exercises  a  pnblio  tmst  which' 
is  onlyBubject  to  regulation  niider  the  police  powers  of  the  cot- 
«rnuient,  otato  or  national,  as  the  case  may  require.  That'tliers 
is  no  element  of  trnst  in  the  pase  is  ably  shown  by  Mr.  Justice 
Hunt,  in  U.  S.  v.  Railroad  Co.,  11  Blatchf.  403,  and  his  rnling  on 
this  point  was  affirmed  on  appeal  in  98  U.  S.  570.  But  if  tuere 
was  a  trnst,  as  claimed,  the  administration  of  the  laws  relating  M 
trnsts  is  tlie  peculiar  province  of  courts  of  equity.  It  is  no  part 
of  the  functions  of  Congi-ees  under  the  constitution. 

It  is  further  ui^d  that  the  judgment  of  imprisonment  only 
was  held  to  be  beyond  the  jurisdiction  of  the  home, — that  ths 
iionse,  or  Congress,  may  investigate,  and  call  upon  the  courts  when 
SO  authorized,  as  in  the  present  act,  to  perform  the  judicial  part  of 
the  work  by  enforcing  the  requirement  of  the  commissionorsi 
But  thera  is  no  such  limitation  in  the  language  of  the  court,  ai 
will  be  seen  by  re-examining  the  passages  quoted.  On  the  con- 
trary,  the  want  of  power  in  the  house  to  punish  is  grounded  oXH 
the  want  of  power  to  investigate  at  all.  It  is  directly  said  in  th6 
«a6e  cited  tiiat  the  house  may  punish  for  contempt,  in  certain 
specified  cases,  wherein  the  power  is  conferred  by  tlie  constitution^ 
or  when  necessary  to  the  proper  execution  of  powers  expressly 
conferred.  And  the  court  with  reference  to  those  instaocee,  aawe 
have  seen,  says,  in  terms : 

"  Whetlier  the  power  of  punishment  in  either  house  by  fine  and 
imprisonment  goes  beyond  this  or  not,  we  are  sure  that  no  person 
oan  be  punished  for  contumacy  as  a  witness  before  either  house 
unless  his  testimony  is  required  in  a  matter  into  which  that  house 
has  jurisdiction  to  inquire,  and  we  feel  equally  sure  that  neitiier 
of  those  bodies  posseBses  tire  general  power  of  making  inquiry  into 
the  private  affairs  of  the  citizen."  Kilbourn  «.  Thompson,  103 
U.  8.  190. 

That  was  a  case  like  this,  wherein  the  house  was  seeking  to  in- 
quire into  the  private  affairs  of  the  debtor, — seeking  to  ascertain 
what  that  debtor  had  done  with  his  money,  some  of  which  lie  held 
as  a  depositary  of  the  United  States.  The  decision  was  not  put 
upon  the  ground  thtit  the  house  could  not  in  any  case  punisli  for 
contempt,  but  on  the  ground  that  the  house  in  cases  like  this' 
had  uo  anthority  to  miike  the  inqniiy  at  all,  and,  consequently, 
there  could  bo  no  punisJunent  for  contempt,  either  by  the  house, 
or  any  other  body  or  tribunal! 

Under  the  act  now  in  question,  Congress  has  undertaken  to 
Authorize  a  commission  to  make  iuquiny  into  the  private  affairs  oi 


^dbyCoogle 


fl28  APPLICATION  OF  THB  PACITIO  BAILWAT  COMMIS8IOU. 

its  creditor, — into  the  pnrpoee,  for  nvbicli  the  debtor  appropriated 
its  own  funds, — wliicU  tlie  supreme  conrt,  in  tlie  case  cited,  says 
it  lias  no  power  to  do,  and  the  commission  is  authorized  to  call 
upon  the  courts  to  aid  it  in  its  unlawful  inquiry.  The  court  is 
not  called  upon  to  act  in  any  judicial  proceeding,  or  investigation 
pending  before  it,  or  before  any  other  conrt,  in  the  discharge  of 
its  judicial  functions,  or  any  matter  ancillary  to  the  exercise  of  its 
judicial  functions.  There  is  uo  case  or  controrers;  at  all 
pending  before  it  of  which  the  proceeding  attempted  to  be 
authorized  is  a  part,  or  to  which  it  ie  ancillary  or  in  any  way  per- 
tinent. It  does  not  appear  to  us,  that  it  is  contemplated  by  the 
act,  that  the  court,  in  the  investigation  provided  for,  when  called 
upon  to  aid  the  commission,  shall  inquire  beyond  the  point  whether 
the  question  asked  is  within  the  scope  of  the  broad  field  of  inquiry 
presciibed.  And  so  the  coinniissioners  claim,  for  they  have  con- 
ducted their  investigation  on  that  theory ;  and  they  insist  that 
they  are  not  bound  By  any  rnles  of  evidence,  or  other  principles. 
of  law  observed  by  courts  of  justice,  and  by  which  the  latter  are 
guided  and  controlled,  in  the  ascertainment  of  facts  in  the  couree 
of  ordinary  judicial  proceedings.  If  tijis  be  the  correct  view,  tlie 
oonrt  is  expected  to  compel  an  answer  irrespective  of  any  other 
considerations.  Even  questions  criminating  the  witness  ai'e  to  be 
answered,  the  only  protection  to  the  party  being  that  his  answer 
shall  not  be  used  against  him  in  a  criminal  prosecution, — a  pro- 
tection of  little  avail  to  any  paety  M-ho  should  discloee  criminal 
acts  upon  which  an  indictment  could  be  found,  and  slionld  npon 
compulsion  indicate  other  sources  of  evidence,  by  means  of  which, 
the  acts  disclosed  can  be  proved  ;  and  such  acts  may  also  constitute 
offences  under  the  laws  of  the  State  against  which  Congress  caa 
afford  no  immunity. 

As  bearing  upon  the  power  of  Congress  to  compel  an  answer  to 
criminating  qiiestions,  or  compel  the  production  of  private  papers,, 
see  Boyd  v.  U.  S.,  116  U.  S.  616.  The  prhiciples  therein  estab- 
lished are  equally  applicable  to  the  matter  now  under  consideration. 
The  court  seems,  therefore,  to  be  called  upon  to  compel,  under 
process  for  contempt,  an  answer  to  any  question  which  the  com- 
mission sees  fit  to  ask  wltliin  the  scope  of  the  inquiry  attempted  to 
.  be  authorized  by  the  act.  If  this  be  so,  the  court  is,  simply,  made 
an  instrument  by  this  act,  in  the  hands  of  tlio  commission,  to  ex- 
ecute its  unregnlated  and  unrestricted  will.  The  court  is  made  tJm 
ministerial  agent  of  the  commission  to  pei-form  its  behests,  when- 
ever a  witness  refuses  to  I'espond  to  a  question,  or  prodnce  papers, 
within  the  i-ange  of  the  antnority  attempted  to  be  given  by  the 
statute.  The  judicial  department  of  the  government  ia  simply 
made,  by  this  act,  an  adjunct  to  the  legislative  department  in  the 
exercise  of  its  political  and  l^islatlye  functions  and  powers,  to 


^d  by  Google 


AOTHORITY  OP  PACIFIC  EAlL^^f  COMMISSIUK.        629 

execute  its  commands, — and  that,  too,  in  ft  matter  into  which  Con- 
gress, nuder  the  decision  cited,  has  no  jnriediction  whatever  to  in- 
qnire.  I  know  of  no  power  in  Congrees,  to  time  render  the  judi- 
cial department  subordinate,  or  ancillary  to  the  legistative  and 
«xecative  departments  of  the  government,  or  to  either  of  thgm. 
If  there  is  any  one  proposition  immutably  established  I  had  snp- 
posed  it  to  he  tliat  tlie  judiciary  department  is  absolutely  inde- 
pendent of  tlie  other  departments  of  the  government, — that  it 
cannot  be  called  npon  to  act  _a  part  anbordinate  to  any  other 
^iepartment  of  the  government,  or  to  a  commission  armed  with 
exasperating  inquisitoiial  powers  over  private  affairs,  anliniited  by 
any  consideration  other  than  its  own  unregulated  discretion.  And 
sol  understand  the  aiitliorities  to  be.  "Tlie  functions  of  tJte  judges 
of  the  courts  of  tlie  United  States  are  strictly  and  exclusively  judi- 
cial. They  cannot,  therefore,  be  called  upon  to  advise  the  pres- 
ident in  any  interpretation  of  law,  or  to  act  as  commissionei's  in 
-cases  of  pensions  or  other  like  proceedings."  2  Story,  Const.  § 
1777,  and  cases  cited. 

The  courts,  in  this  instance,  are  called  npon  not  to  exercise  their 
ordinary  powers  in  the  administration  of  justice,  but  to  assist  Con- 
gress  in  the  exercise  of  its  deliberative,  legislative,  and  political 
powers, — to  aid  it  by  irregular  and  extraomimiry,  not  to  say  un- 
precedented means,  — to  act  as  its  agent  in  mattei's  wholly  foreign 
to  the  functions  of  the  judiciary.  In  my  judgment,  therefore, 
reason  and  the  autliorities  cited  establisli,  beyond  reasonable  groutid 
for  controversy,  tlie  proposition  tiiat  there  is  no  lawful  anthority 
in  the  commissi  oners  to  compel  answers  to  the  various  questions 
propounded  and  set  out  in  tlie  petition,  or  any  of  them,  wln'ch  the 
respondent  refused  to  answer,  nor  can  the  courts  be  lawfully  re- 
quired to  compel  answers  thereto. 

I  concur  in  the  order  made,  disehat^ng  the  order  to  show  cause. 


^d  by  Google 


ALLS?  V.  LODISTUXl^  BIO.,  R.  OO. 


LouisvlLLB,  New  Albany  and  Cbioago  R.  Co. 
(Intfrttate  Comm&rce  Oommittitm,   Oetober  31,  1687.) 

Where  k  railroad  compan;  received  grain  at  IndianapolU  and  delivered  Hat 
HichiguQ  City,  east  of  Indianapolis,  to  a  connecting  line  for  I^ew  York,  for 
twL'Dtv-three  ccnta  per  hundred  pounds  tlirough  lo  New  York,  and  also  re- 
ceived grain  at  Frankfort  and  delivered  it  at  South  Wanatah  to  another  con- 
necting line  for  New  Yorlc,  for  twenty-five  cents  per  hundred  pounds  through 
to  New  York;  and  the  evidence  showed  that  the  diBtance  from  Indianapolis 
to  New  York  b;  way  of  Michigan  City  is  greater  than  the  distance  from 
Frankfort  to  New  York  by  way  of  South  Wanatah,  but  that  the  railroad  had 
nothing  to  do  with  makiug  the  rates  beyond  its  own  line  except  as  it  agreed 
to  accept  its  proportion  on  a  mileage  basis,  and  that  its  own  compenEation 
for  carrying  grain  from  Indianapolis  to  Michigan  City,  and  also  from  Indian- 
apolis to  South  Wanatah,  was  greater  than  the  compensation  re(!eiTed  for 
taking  like  freight  from  Frankfort  to  South  Wanatah,  it  was  held  that  no 
violation  of  the  long  and  short  haul  clause  of  the  fourth  section  of  the  Act 
to  Regulate  Commerce  by  the  railroad  was  shown. 

In  order  to  accomplish  a  reduction  of  through  rates  from  one  point  to  an- 
other over  several  connecting  roads,  all  the  roads  should  be  made  parties  to 
the  CompttuQt;  and  where  it  is  shown  that  the  road  which  first  receives  the 
freight,  eveti  though  it  receives  the  compensation  for  all,  has  no  control  of 
the  rate  beyond  its  own  line,  it  is  not  sufficient  to  make  it  alone  a  party,  a* 
an  order  directed  to  it  only  would  be  ine&ectual  to  accomplish  the  4eaind 
reduction. 

CoMPLArar  lieard  at  the  Board  of  Trade  rooms  in  Chicago  on 
depositions  and  oral  evidence. 

The  complaint  states  that  on  the  20th  day  of  Jane,  1887,  the 
complainants  delivered  to  tlio  defendant  one  car-load  of  bran  for 
transportation  from  the  city  of  Frankfoi't,  in  the  State  of  Indians, 
to  the  city  of  New  York,  for  wiiich  service  the  defendant  demanded 
compensation  at  the  rate  of  twenty-five  cents  per  linndred  ponnds; 
tiiat  the  city  of  Frankfort  and  the  city  of  Indianapolis  are  both 
upon  the  line  of  defendant's  road,  that  Frankfoi-t  is  forty-seven 
miles  nearer  New  York  than  is  Indianapolis,  and  that  all  freight 
from  Indianapolis  to  New  York  over  defendant's  road  mnst  neces- 
sarily pass  thron^^h  Frankfort;  that  at  the  date  of  said  shipment 
defenaiint'fl  tariff  on  property  of  the  sixth  class — which  included 
hran — from  Indianapolis  to  New  York  was  twenty-three  cents  per 
hundred  ponnds;  and  that,  therefore,  by  reason  of  snch  preater 
charge  from  Frankfort  to  New  York,  the  shorter  distance,  than 
from  Indianapolis  to  New  York,  the  longer  distance,  defendant 
violated  section  foni-  of  the  "  Act  to  Hfgnlate  Coinmerce." 

The  answer  of  the  defendant  admits  iljut  on  tiie  day  named  its 


^d  by  Google 


INTERSTATE  COMMBRCE  ACO^-LONO  AND  SHORT  HAUL.   631 

tariffs  from  Indianapolis  and  Frankfort  to  New  York  were  respect- 
ively, twenty-tliree  and  twenty-five  cents  per  linndred  poDndB,and 
that  Frankfort  is  forty-seven  miles  nearer  liew  York  by  its  line  of 
road  tlian  is  Indiannpolie,  bat  denies  that  it  has  violated  section 
four  of  the  "  Act  to  Itegiilate  Commerce."  Tlie  answer  shows 
the  comparative  distances  from  Indianapolis,  Michigan  City,  and 
intermediate  points,  to  New  York,  via  defendant's  line  and  connec- 
tions, as  well  as  by  the  shortest  line  via  otlier  rentes  from  the  said 
several  points  to  New  York,  from  whicli  it  appears  that  the  distance 
from  Indianapolis  to  New  York  by  the  shortest  line  is  825  miles, 
and  from  Frankfort  is  846  miles.  It  fnrthcr  states  that  for  a  long^ 
period  tmusportiition  eharj^es  in  that  section  hiive  been,  from 
necessity,  based  npon  relative  mileage  distances  to  and  from  tlie 
points  of  shipmenr,  via  the  shortest  Tine,  and  the  longer  lines  have 
uatried  at  the  same  mte  in  the  aggregate  as  the  shorter  ones ;  that 
between  Chicago  and  the  Atlantic  seaboard  rates  have  been  based 
upon  the  distances  between  those  points,  Chicago  being  the  nnit, 
and  that  tlie  rates  from  Indianapolis  to  New  York  and  other  sea- 
board points  have  been  and  are  fixed  by  the  short  lines  at  ninety- 
three  per  cent  of  tlie  Ciiicago  rate;  that  defendant's  road  running- 
in  a  northwesterly  direction  towards  Chicago  and  Michigan  City 
crosses  several  east  and  west  roads,  and  that  in  consequence  of  the 
distances,  via  tiie  crossing  lines  at  the  jnnction  points  to  New  York 
and  points  east  thereof,  being  shorter  tiian  by  defendant's  road, 
yet  further  from  Indianapolis,  each  of  said  jnnction  points  has  the 
higher  rate  to  and  from  New  Yoi'k  and  points  east  thereof  than 
Indianapolis;  that  the  rates  on  sixth-class  articles  from  the  junc- 
tion points  to  and  from  New  York  and  points  east  thereof  are: 
Indianapolis,  93  per  cent  of  the  Chicago  rate,  or  twenty-three  cents 
per  hundred  ponnds;  Westfield,  96  per  cent,  or  twenty-four  cents 

Kr  hundred  ponnds;  and  tlie  otlier  junction  points,  inctnding 
■ankfort,  100  per  cent,  or  twenty-five  cents  per  linndred  ponnds. 
Tliat  unless  defendant  accepts  these  rates  it  cannot  secnre  any  of 
the  traffic  to  or  from  Indianapolis ;  that  in  the  past  it  has  charged 
snch  rates,  and  if  it  cannot  continue  the  practice  it  must  lose  its 
Indianapolis  business,  as  defendant  has  no  power  to  reduce  rates 
in  the  territory  north  of  Indianapolis  below  the  established  rates, 
because  its  connections  will  not  receive  freight  except  at  the 
established  rate  in  effect  at  the  point  wliera  the  same  originates. 
The  answer  further  states  that  Indianapolis  is  not  only  nearer  the 
Atlantic  seaboard  by  direct  rente  than  is  Frankfort,  but  that  there 
are  niiiniiig  from  Indianapolis  the  following  lines  of  railway,  to 
wit:  Cincinnati,  Indianapolis,  St.  Louis  and  Chicago;  Cincin- 
nati, Hamilton  and  Chicago;  the  Feimsylvania  Company's  lines; 
Lake  Erie  and  Western  ;  Cleveland,  Oolumbns,  Cincinnati  and  In- 
dianapolis ;  tlie  Louisville,  New  Albany  and  Chicago  R.,  all  com- 
peting for  Atlantic  seaboard-business,  and  if  defendant  cannot 


^dbyGoOglc 


633  ALLEN   V.    LuniSVlLLXl,    ETC.,    R.   OO. 

compete  with  tliese  lines,  or  is  compelled  to  cliarge  tlie  eame  rat© 
from  IndianapoHs  which  it  charges  from  Frankfort,  it  cannot  hope 
to  do  Iiidiaiiapolta  bnEineEB.  The  answer  also  states  t)iat  the  ship- 
ment in  question  is  tlie  only  car  that  the  complainants  have  shipped 
by  defendant's  line  to  BnSalo,  or  points  east  thereof,  and  that  this 
was  merely  for  the  purposes  of  this  action. 

Suit  c6  Coinhs  for  complainants, 

Maynea  db  Easley  and  George  W.  Friedly  for  defeodaot 

CooLBT,  Chairman. — The  coDipkint  in  this  case  is  that  the  defend- 
ant violates  the  fourth  section  of  the  Act  to  Begiilate  Commerce 
hy  charging  more  for  the  transportation  of  a  like  kind  of  property 
for  a  shorter  than  for  a  longer  distance  over  tlie  same  line  in  the 
same  dii'ection,  tlie  shorter  oeing  inchided  in  Che  longer  di^t.-mee. 

The  facts  as  we  find  them  toT>e  on  the  evidence  are  the  follow- 
ing: The  defendant  has  a  line  of  railroad  extending  in  a  direction 
west  of  north  from  New  Alhany  to  Cliieago,  with  a  branch  line 
from  Monon  to  Michigan  City.  The  line  is  crossed  at  many  points 
by  roads  which  form  lines'  to  New  York  and  other  Atlantic  sea- 
buaiHi  cities.  Among  the  points  where  there  are  such  croEsinge 
are  Indianapolis,  Frankfort,  and  Sonth  Wanatah,  in  the  State  of 
Indiana.  The  bmnch  from  Monon  intersects  the  Michigan  Cen- 
tral B.  at  Michigan  City.  Defendant's  I'oad  is  tlirongh  a  gi-ain- 
growing  region,  from  which  wheat  and  pi-odncts  of  wheat  are  taken 
to  the  seaboard.  The  direct  roads  from  the  points  on  defendant's 
line  to  the  Atlantic  cities  determine  the  i-ates  that  shall  be  charged 
for  the  transportation,  and  other  roads  that  participate  with  them 
in  the  business  accept  the  rates  so  fixed,  apportioning  it  on  some 
agreed  basis. 

The  complainants  are  dealers  in  grain  and  giiiin  products  at 
Fi-ankfort,  and  bny  for  the  eastern  market,  Tlie  current  rate 
from  Frankfort  to  New  York  is  twenty-five  cents  a  hundred 
sonnds.  From  Indianapolis  to  New  York,  the  distance  by  dii-ect 
inea  being  somewhat  less,  the  rate  is  only  twenty-three  cents  a 
hundred  pounds.  The  management  of  the  defendant  is  desirous 
of  particip'.iting  in  the  grain-cjirrying  trade,  but  to  have  any  part 
in  tlie  east-bound  trafBc  it  must  carry  at  snch  rates  that  the  whole 
charge  to  the  seaboard  over  all  the  roads  forming  a  line  of  tranft. 
portation  shall  be  the  carrent  i-ate  at  the  point  at  wiiicli  the  traffic 
IS  received.  Tlie  roads  crossing  the  defendant's  road  are  willing 
to  receive  the  traffic  from  it  and  divide  the  compensation  by  pro 
rating  on  a  mileage  b-isis.  Defendant  has  an  an-angement  with 
the  Michigan  Centra]  K.  Co.  whereby  it  receives  grain  at  Indian- 
apolis at  the  t wen ty-three- cent  I'ate  and  delivers  it  to  the  Michi- 
gan Central  at  Miciiignn  City,  pro  rating  the  compensation,  and 
another  with  the  New  York,  Chicago  &  St.  Louis  R.  Co.  whereby 
it  receives  grain  at  Frankfort  at  the  twenty-five-cent  rate  and  dc- 


In 


^d  by  Google 


INTERSTATE  COHHERCB  ACT — LONG  AND  SHORT  HAUL.   633 

lirera  it  to  the  last-meiitioned  road  at  Sonth  Wanatali,  pro  rating 
tlie  compensation.  The  reenlt  is  that  tlie  i-ate  given  by  defendant 
to  siiippei's  at  Indianapolis  by  t!ie  Hictiigan  Central  line  is  less  than 
the  rate  given  at  Fi-ankfort  by  the  other  line,  though  the  distance 
by  the  former  lihe  is  ei-eater. 

Tliis  proceeding  is  institnted  to  compel  redaction  in  the  rate  at 
Fmnkfort  to  tlie  level  of  the  Indianapolis  i-ato.  The  complaiiiants 
do  not  usually  send  grain  by  defendant's  road,  but  they  sent  a  con< 
fiignment  of  grain  product  by  it  and  paid  the  twenty -five-cent  rate 
nnder  protest,  with  a  view  to  this  proceeding.  It  is  not  claimed 
that  the  direct  line  fi-om  Frankfort  to  New  York  violates  the  law 
by  charging  the  twenty-five-cent  i-ate,  but  it  is  supposed  that  if 
defendant  is  compelled  to  reduce  its  rate  by  the  order  of  the  com- 
mieaioii  the  direct  line  will  have  no  alternative  and  must  make  the 
like  reduction.  In  fact,  since  this  proceeding  was  begun  a  redac- 
tion to  twenty-four  cents  has  been  made. 

The  distance  from  Indianapolis  to  New  York  by  the  shortest 
railrond  line  is  eight  inindred  and  twentj-tive  miles.  From  Frant 
fort  the  shortest  railroad  roure  is  eigJit  hnndred  and  ■  forty-six 
miles.  From  Indianapolis  to  Michigan  City  is  one  hundred  and 
iifty-fonr  miles,  and  from  Indianapolis  to  l^ew  York,  by  way  of 
Michigan  City  and  the  Michigan  Central  R.,  is  one  thousitnd  and 
fifty-tive  miles.  From  Franlrfort  to  South  Waniitah  is  eighty-four 
miles,  and  from  Frankfort  to  New  York,  by  way  of  South  Wana- 
tali and  the  New  York,  Chicago  &  St.  Louis  R.,  is  one  thousand 
And  eight  miles.  These  figures  give  a  basis  for  such  calculations 
as  ai-e  necessary  to  an  underetanding  of  the  legal  propositions. 

On  the  hearing  the  genei-al  question  was  discusEed,  whether  the 
transportation  of  grain  to  the  seaboard,  through  the  agency  of  tlie 
defendant,  is  under  circumstances  and  conditions  so  dinerent  at 
Frankfort  from  what  they  are  at  Indianapolis  as  to  justify  the 
greater  charge  on  the  shorter  haul.  For  the  defendant  it  was  con- 
tended that  they  were,  Indianapolis  being  not  only  a  point  of 
greater  railroad  concentration  and  competition,  but  also  nearer 
New  York  by  the  direct  lines  and  therefore  justly  entitled  to  the 
lower  i-ates;  while  for  the  complainants  it  was  insisted  that  busi- 
iiese  over  the  line  of  the  defendant  is  alone  in  question,  and  by 
that  line  Frankfort,  being  nearer  the  points  of  freight  destination, 
is  entitled  by  the  law  to  rates  not  higher  than  those  accepted  by 
the  defendant  at  Indianapolis. 

On  the  facts  found,  however,  it  is  very  evident  that  the  general 
qnestion  the  complainants  li a ve  desired  to  present  does  not  ai-ise. 
The  defendant  transports  grain  from  Indianapolis  to  Michigan 
City,  bot  no  further,  and  receives  for  the  ti-ansportation  a  propor- 
tion of  twenty-three  cents  per  hundred  pounds,  measured  .by  t)ie 
distance  it  carries  it,  154  miles,  as  compared  with  the  whole  dis- 
tance, 1055  miles.    It  also  transports  grain  from  Frankfort  to 


^d  by  Google 


034  ALLKN  V.    LOUISVILLE,    ETC.,   E.   00. 

Sonth  Wanatah,  and  receives  for  the  tranEportation  a  proportioD 
of  twenty-five  cents  per  hundred  ponnde,  tueasored  bj  the  dietance 
it  carries  it,  81  miles,  as  compai-ed  to  tlie  wliole  distance,  1008 
tnilefi.  An  arithmetical  calcalation  will  readily  show  that  vliile 
defendant  receives  somewhat  iriore  per  mile  opon  the  grain  taken 
Dp  at  Frankfort,  it  receives  more  in  the  ajsrgre^te  for  that  which 
it  carries  fi-om  Indianapolis  to  Michigan  City  than  for  that  which 
it  carries  fram  Frankfort  to  Soiitli  Wanatafi,  and  therefore  doee 
nut  violate  the  statute  which  pitiliibits  receiving  more  for  the 
shorter  than  for  the  longer  haul.  If  the  calculation  were  made  on 
the  Indianapolis  sliiptnent  for  the  distance  between  that  place  and 
Simtli  Wanatah  only,  the  fact  wimld  still  l>c  tlint  more  is  received 
upon  that  than  .upon  a  like  conpipunent  from  Frankfort;  iliedie- 
bincc  being  foiry-eijrht  miles  gieiiter.  Since,  therefore,  the  die- 
tance between  Frankfort  and  South  Wanatah  is  all  that  is  inclnded 
in  the  longer  line,  it  is  plain  Uiat  on  no  calculation  is  it  made  to 
appear  that  the  defendant  receives  mora  for  tiie  transportation  of 
a  hke  kind  of  property  over  the  same  line  in  the  same  direction, 
the  shorter  being  included  within  the  longer  distance;  and  this 
without  regard  to  the  qneetion  raised  on  the  argument,  whether 
the  line  from  Indianapolis  by  wayof  Michigan  City  to  New  York, 
on  which  the  twenty-three-cent  rate  is  charged,  is  or  is  not  in  a 
legal  sense  the  same  line  as  that  from  Frankfort  by  way  of  South 
Wanatah  to  New  York,  on  which  the  twenty-nve-cent  rate  is 
charged.  We  say  nothing  upon  that  question,  because  the  case 
does  not  call  for  its  considerntion,  and  also  because  only  one  of  the 
several  parties  interested  in  the  qnestion  has  been  brought  in  as 
defendant  and  given  the  opportunity  for  a  hearing. 

But  it  is  argued  for  the  complainants  that  defendant  anitee  with 
the  other  eamei-s  in  making  the  through  rate,  and  ie  tlierefore  re- 
sponsible for  the  whole  as  mnch  as  if  the  whole  was  for  a  trans- 
portation over  its  own  line.  On  this  point  we  are  necessarily 
governed  by  the  evidence,  and  the  evidence  is  distinct  and  positive 
that  while  the  defendant  names  the  through  rate  to  shippers  whea 
it  is  called  for,  the  rate  from  intersecting  points  is  not  controlled 
by  defendant,  but  is  fixed  by  the  crossing  roads.  The  Michigan 
Central  R.,  it  appears,  will  accept  Indianapolis  grain  fi-om  defend- 
ant at  Michigan  City  and  pio  rate  tlie  twentj-tliree-cent  charge, 
on  a  mileage  basis,  and  the  New  York,  Chicago  &  St,  Louis  R. 
will  accept  Frankfort  grain  from  defendant  at  South  Wanatah  aiid 
pro  rate  a  twentyfivcccnt  charge  on  a  mileage  basis.  If  defend- 
ant consents  to  i-eceive  the  proportions  from  the  two  roads,  re- 
spectively, it  can  name  a  throngn  rate  to  shippers  when  they  ask 
for  it,  but  in  doing  so  it  does  not  make  the  through  rate  any  more 
than  it  would  if  it  named  its  own  proportion  and  that  of  the  other 
roads  in  fiqures  separately,  and  then  received,  as  it  now  does,  tlie 
whole;  for  in  receiving  what  goes  to  tlie  other  road  it  receives  it 


^d  by  Google 


IKTBR8TATB  OOMMEBOE  ACT — LONG  AHD  SHORT  HAUL,  685 

«e  aeent  merely.  Tlie  chai^  from  Frankfort  to  New  Toi-k  by 
the  defeiidaat'e  line  is  greater  tlian  the  cliarge  from  Indianapolis^ 
not  becanee  the  defendant  exacts  more  for  its  own  service — for 
tlio  contrary  ia  the  fact — but  because  the  Michigan  Central  E. 
cai'ries  fi-om  Micliigan  City  at  a  lower  compensation  than  the  New 
York,  Cliicago  &  St.  Louis  K.  cliarges  for  the  transportation  from 
Boiitli  Wanatali. 

Tliere  are  cases  m  wliicli  a  carrier  may  be  bound  for  some  pur- 
poses by  tlio  rates  established  over  connecting  lines,  even  tlioiigh  if 
has  not  directly  united  with  sncli  connecting  ]inesin  makitig  them. 
Such  a  ciise  was  before  the  commission  in  The  Vermont  State 
Granger- The  Boston  and  Lowell  R.Go. et  at.,iiifra,]).  695, in  which 
one  of  the  defendants  shai-uii  long-haul  rates  which  were  lower 
tlian  the  siiort-hanl  rates  which  it  charged  on  its  own  road  consti- 
stuting  a  part  of  the  long-haul  line.  Tiie  legality,  of  the  short- 
haul  rates  was  all  that  Wiis  in  controverey  in  that  case;  and  the- 
oommiasioM  held  that  the  currier  exclusively  i-esponsible  for  them 
was  not  entitled  when  fixing  them  to  make  them  greater  than  the 
long-haul  rates  in  which  it  participated  with  othei-s,  unless  a  case 
was  made  out  of  dissimilar  ci ran m stances  and  conditions.  Partici- 
pating in  the  long-hanl  rates,  it  was  held,  made  them  under  the 
Btatnte  a  maximum  limit,  for  short-haul  rates  to  be  im^iosed  on  its 
own  line,  and  made  the  short-haul  rates  illegal  when  the  limit  was 
exceeded.  But  in  that  caso  there  was  no  question  of  responsibility 
for  the  rates  which  were  found  to  be  illegal,  nor  conld  there  have 
been,  for  they  wore  made  at  pleasure  by  the  local  road.  In  Uiia 
Cftse  the  rates  which  defendant  makes  exclusively  are  not  com- 
plained of;  and  as  no  one  can  be  convicted  of  illegality  in  respect 
to  action  of  othere  which  he  could  not  control,  it  obviously  be- 
comes necessary,  befora  defendant  can  be  charged  in  this  proceed- 
ings, to  show  that  at  least  it  had  the  power  to  make  the  through 
rates  different.     But  all  the  showing  made  is  to  the  contrary. 

The  conclusion  is  that  a  violation  of  law  by  the  defendant  in 
the  particular  charged  is  not  made  ont. 

A  further  difficulty  with  complainants'  case  is  that  its  purpose 
is  to  compel  a  ciiange  of  the  through  rate  from  Frankfort  to  New 
York.  But  when  it  is  shown  that  defendant,  instead  of  controlling 
the  whole  line  to  the  seaboard,  on  which  fi-eiglit  is  transported 
from  Frankfort,  controls  only  the  small  fragment  thereof  from 
Frankfort  to  South  Wanatali,  it  then  becomes  im|K)SBtble,  on  any 
view  that  may  be  taken  of  the  law  of  the  case,  to  give,  in  a 
proceeding  to  which  the  defendant  is  alone  made  a  party,  the  re- 
lief which  the  complainants  seek.  An  oi'der  requiring  defend- 
ant to  cease  charging  more  on  Frankfort  than  on  Indianapolis 
shipments  to  the  seaboard  would  be  quite  futile.  It  conld  not  bo 
enforced  against  any  can-iei-s  which  are  not  parties  to  the  I'mccotl- 
ing,  and  the  defendant  would  not  violate  it  if,  when  ciillcd  i;|<i>:i 


^d  by  Google 


636  ALLEN  V.   LOUISVILLE,   ETC.,   B.   CO. 

to  give  the  rates,  it  gave  those  oo  its  own  line  only.  If  in  giving 
its  own  rates  it  did  not  antagonize  the  long  and  short  clanse  of  the 
etatnte,  it  wonld  be  guilty  of  no  violation  of  law  under  the  fourth 
section,  which  is  the  section  on  wliich  tliis  complaint  proceeds. 

When  complainants  desire  to  test  tlie  jnstice  or  legality  of  the 
tbrongh  rates  from  Frankfort  to  New  Yoi'k,  the  necessity  of 
bringing  in  the  paVties  who  make  the  rates,  not  for  forty^six  luiles 
merely,  but  for  the  whole  distance,  is  obviona.  They  most  be 
brought  in,  first,  because  they  iiave  a  right  to  be  beard,  and,  sec- 
ond, because  an  order  made  and  purporting  to  control  their  action 
when  they  were  not  parties  wonJd  be  irapmper  on  its  face,  and  in 
s  legal  sense  ineffectual.  If  such  an  oraer  could  have  any  effect 
as  against  the  initial  road,  it  wonld  only  be  to  prevent  its  agents 
naming  to  shippers  when  they  called  for  it  an  aggregate  through 
rate;  it  wonld  not  prevent  its  making  the  same  rate  as  now  to 
Sontii  Waiiatnh,  nor  preclude  the  connecting  road  from  making 
rates  independently  from  South  Wanntali  eastward. 

On  this  finding  an  order  will  be  entered  that  the  complaint  is 
Dot  sustained. 


According  to  the  evidence  the  compenBation  of  defendant  for  tnnsport- 
ing  one  ton  of  Rraio  from  iDdianspolia  to  MicbigMi  City  in  coonec- 

tioD  with  the  Michigan  Central  is '      .        fl7.0 

FroportioD  to  South  Wanat&h 63.6 

Compensation  per  too  from  Fraokfort  to  Boath  Wanatah  in  connectioD 
with  the  New  York,  Chicago  A  St.  Louis        ....        41.8 

When  ClrcumsUncM  and  Condition!  of  Shipment  Are  Different. — See 
MparU  Eouhler,  31  Am.  &  Sag.  R.  H.  Cas.  63;  In  re  Louisville,  etc.,  R.  Co. 
1  R.  &  Corp.  L.  J.  611;  Complaint  of  Richudson  &  Co.,  1  N.  Y.  R, 
Comm'rs  Rep.  101;  Rand  Lumber  Co.  c.  Chicago,  etc.,  R.  Co.,  Iowa  R 
Corom'rt  Rep.  SSO;  Oreenhood  on  Public  Policy,  689;  Hadley  on  R. 
Trans.,  116;  Report  of  Simon  Sterne,  N.  Y.  Henate  Uisc.  Doc  66,  p.  18; 
UliDois  Cent,  R.  Co.  v.  People,  10  West.  Rep.  588. 

The  Linei  of  Transportation  Are  Different—But  &  Wet.  tR.  Co.  ».  Qreat 
West.  R.  Co.,  1  R.  <&  Canal  Traffic  Cas.  844;  H.  S.  &  L.  R  Co.  c.  Denelj 
Coal  Co.,  U  Law  Bep.  333;  Finney  e.  Glasgow  R  Co.,  8  Hacy,  188;  Hurry 
«.  GItacow,  etc,  R  Co.,  11  Ct.  Bes.  Gu.  4,  sec  SOS;  Commonwealth  ■. 
Woroeiter,  etc,  B.  Co.,  134  Mass.  061. 


^dbvGooglc 


INTSBSTATB  OOHHBBOB  ACT— LONG  AND  8aOBT  HAUL.   637 


Thatoheb 


Dblawabk  asb  Hdsbon  Canal  Co.  et  al, 
(Jwlp  2B,  1887.) 

Where  an  order  la  aaked  reqniritig  several  roade  to  receive  freight  at 
OomplaiDant'e  elevator  at  ScheDectady,  for  traoBportation  to  Bos^n  at  rate* 
leas  tbaa  are  now  charged  by  tbs  same  roid  from  atatians  on  the  same  lin« 
nearer  tlie  Doint  of  destiDBtion,  which  would  be  as  far  as  can  be  seen  under 
■ubataatlallj  aimilar  circumstaaces  and  conditioas,  sucb  an  order  if  iBsaeicI 
would  require  the  roads  to  depart  from  the  geoenl  rule  laid  down  in  Um 
fourth  section  of  the  Act  to  Regulate  Commerce. 

While  the  aeveral  roads,  defendaote,  miglit  avoid  conflict  with  the  fourth 
KctioD  of  the  act  bj  reducing  their  charges  to  Boston  from  the  station  east 
of  Bchenectadj  this  complainant  does  not  ask  such  reduction,  nor  la  there  anj 
avidence  which  would  enable  the  commission  to  determine  proper  and  just 
rates,  and  it  is  therefore  impossible  to  fix  them,  even  if  it  bad  power  to 
make  rates  geuerallj,  which  it  has  not. 

G.  L.  Stedman  for  complainant. 

T.  F.  HwmUton  and  O.  A.  Tomey  for  defendants. 

EBPOBT  AND  OPINION   OF  THE   COMMISSION. 

ScHOoNHAEEH,  Com. — Tlie  complainant  in  tliia  case  cliare^s,  in 
snbstuncG,  tliat  tlie  various  railroad  companies  named  as  defend- 
ants unjustly  discriminate  agaiiist  tiie  complainant  by  refitsin<r  to 
carry  giniu  and  flour  for  the  eompliiiiiant  from  Sclienectady,  New 
York,  to  Dostou  and  otlici-  New  England  points,  at  the  proportion 
of  ali-i'ail  Kites  from  Chicago  to  Boston  and  tlie  otlier  points 
reached  liy  through  shipuients,  allowed  from  Schenectady  by  the 
joint  tariffs  for  sucii  through  shipments,  and  demands  that  .all  tlie 
raih-oada  which  participate  in  the  traffic  of  through  lines,  which 
pass  Schenectady  e;istward  over  the  tracks  of  the  Delaware  &  Hud- 
son Canal  Co.,  shall  be  required  to  receive  and  forward  from  the 
Schenectady  elevator,  posseES  d  and  nsed  by  complainant,  all  grain 
and  otiicr  merchandise  received  at  said  elevator,  eitlier  by  canal  or 
railroad,  and  aiiipped  to  said  elevator  for  the  purpose  of  bein^ 
forwarded  further  east  over  the  routes  of  the  defendants,  and  to 
farnisli  care  and  all  needed  facilities  for  transportation  of  p^in, 
feed,  aud  flour  from  the  Bchenectady  elevator  and  steam  nulls  to 
eastern  points,  and  that  they  accept  as  compensation  therefore  the 
same  amounts  of  money  the;  severally  accept  and  receive  for  eim- 
itar  eervioes  as  parts  of  the  throngh  lines  from  Chicago. 


^dbyGooglc 


638     TIUTCHBK  V.    DEXAWABX:  AND  HUDSON   CANAL   OO. 

The  answers,  in  snbstatice,  deny  the  charge  of  discrimination, 
and  aver  that  tlie  shipments  east  from  the  Schenectady  elevator  of 
the  complainant  are  local  shipments,  and  that  the  defendants  have 
the  right,  and  that  it  is  their  duty  nnder  the  statute,  in  order  to 
avoid  a  violation  of  tlie  long  and  short  iiaul  provision  of  the  fourth 
section,  to  ciiai'ge  local  rates  or  rates  not  less  than  irom  Mechanics- 
ville,  Qreenfield,  and  other  local  and  more  eastern  points  to  Boston. 

The  commission  tinds  the  facts  material  to  the  disposition  of 
the  case  to  be  as  follows  : 

The  complainant  is  the  proprietor  of  a  valuable  elevator  and 
flour  mills,  at  Schenectady,  conveniently  located,  adjacent  to  the 
Erie  eanal,  and  to  the  tracks  of  the  Kensselner  &  Saratc^  K., 
leased  and  operated  by  the  Delaware  &  Hudson  Canal  Co.,  and 
lias  for  several  years  nnder  contract  with  the  Rensselaer  and  Sara- 
toga Co.  continaed  with  the  Delaware  and  Hudson  Co.,  had  a 
privilege  which  lias  been  practically  the  privilege  of  sliipping 
grain,  ^d,  and  flour  from  his  elevator  over  tlie  said  railroad  to  and 
over  its  connecting  roads  leading  to  Boston  and  other  eastern 
points. 

The  complainant  receives  the  bnik  of  his  grain  from  the  west, 
transported  by  water  over  tJie  li^es  and  Erie  canal  and  consigned 
to  liim  at  Schenectady,  where  it  is  taken  into  his  elevator  and 
retained  until  he  finds  a  market  for  it  in  New  England.     He  also 

SitrchascB  grain  locally  at  and  near  Schenectady,  wTiich  is  taken  in* 
iscriininaicly,  like  all  tiio  other  grain  received,  into  the  same  ele- 
vator, and  for  the  same  purposes.  Tlie  elevator  is  also  open  to  the 
public,  a[id  is  used  to  some  extent  by  other  persons  than  complain- 
ant, for  the  transhipment  and  storage  of  grain. 

Prior  to  the  time  the  Act  to  Begnlate  Commerce  took  effect  the 
defendant  roads  all  carried  complainant's  grain,  feed,  and  flonr  at 
the  proportion  of  through  rates  from  Cliicigo  to  Boston  allowed  to 
the  lines  from  Schenectady  to  Boston.  Tlie  percentage  of  those 
tliroDgh  rates  was  twenty  per  cent  of  the  Chicago  rate  of  thirty 
cents  per  hnndred  ponnds,  or  practically  six  cents  per  hnndred. 
The  subdivision  of  the  Fitclibnrg  roads  from  Mechanicsville  to 
Boston  of  this  proportion  was  five  cents  and  seven  hnndred  and 
seventy-eight  one  thousandths.  Since  the  Act  to  Regolate  Com- 
merce took  effect  the  several  ro.ids  have  refused  to  accept  this  pro- 
portion from  complainant,  giving  as  the  reason  therefor  that  it 
would  violate  the  fourth  section  of  that  act,  since  the  rates  from 
Albany,  Troy,  Mechanicsville,  and  North  Adams,  whicli  are  fur- 
tlier  east  and  nearer  Boston  thon  Schenectady,  on  the  Fitchburg 
line,  are  greater  than  such  proportion  wonld  be. 

The  principal  shipments  from  cuinplaiuant's  elevator  have  been 
over  the  Delaware  and  Hudson  road  to  Median icsvi lie,  and  thence 
over  the  Fitchburg  lines  to  Boston.  He  makes  no  shipments  by 
way  of  Albany  over  the  New  York  Central  and  Boston  and  Al- 

DigilizedbyGoOgle 


IITTEBaTATE  OOHMEBCE  ACT — LOKG  AND  8H0BT  HAUL.   SSQ 

bany  roads.  The  Fitcbbnrg  road  cow  controls  the  Troj  and  Bos- 
ton line,  and  the  Beaton,  Hooeac  Tunnel  and  Western  road.  Since 
the  change  above  stated  the  complainant  has  made  no  shipments 
over  tbeae  lines  on  account  of  tlie  i-atea. 

Upon  this  statement  of  facts  it  is  seen  that  what  the  complain- 
ant aeka  from  the  commifiaion  ie  an  order  that  shall  require  the 
several  defendant  roads  to  receive  freiglita  at  hie  elevator  at  Sclie- 
nectadj  for  transportation  to  Boston,  and  Boston  points,  at  rates 
Tees  than  are  now  charged  by  the  same  roade  for  the  transportation 
of  like  freights  to  Boston  and  Boston  points  from  stations  on  the 
same  lines  nearer  to  the  points  of  destination,  and  the  ti-ansporta- 
'ttoii  of  which  freights  wonld,  so  far  as  we  can  now  see,  be  under 
snbstantiallj  similar  circnmstances  and  conditions.  Snch  an  order, 
if  issned,  would  reqnirs  the  roads  to  depart  from  the  general  rale 
laid  down  in  the  fourth  section  of  the  Act  to  Regulate  Commerce. 
While  that  act  anthorizes  the  commiseion  to  permit  exceptions 
ander  some  circumstances  and  conditions  indicated  by  the  law,  it 
does  not  empower  the  commission  to  require  exceptione. 

This  is  the  only  question  which  is  so  presented  by  the  complaint 
that  the  commission  can  pass  upon  it.  It  may  be  tvuthfnllv  said 
that  the  several  defendants  might  avoid  any  conflict  with  the 
fourth  section  of  the  act  by  reducing  their  charges  to  Boston  and 
Boston  points  from  the  stations  east  of  Schenectady ;  but  this  com- 

Elaint  dues  not  ask  the  commission  to  compel  such  reduction,  nor 
as  any  evidence  been  given  or  offered  which  wonld  enable  us  to 
determine  what  would  be  proper  and  Just  rates  from  any  such  sta- 
tions. It  is  therefore  impossible  to  nx  them  in  thie  case,  even  if 
the  commission  had  power  to  make  rates  generally,  which  it  has 
not.  Its  power  in  respect  to  rates  is  to  determine  whetlier  those 
which  the  roads  impose  are  for  any  reason  in  conflict  with  the 
statute. 

The  rates  with  which  complainant  finds  fault  it  is  not  claimed 
are  in  conflict  with  the  statute,  unless  the  conflict  is  found  ia  the 
fact  that  they  exceed  what  the  I'oads  accept  on  through  business 
as  their  proportion  of  the  rates  fixed  at  distant  points.  If  that  is 
in  any  sense  contrary  to  the  law,  the  illegality  would  not  be  cor- 
rected by  compelling  the  roads  to  accept  upon  shipments  from 
Schenectady  ratee  lees  than  are  charged  from  the  stations  further 
east.  We  cannot  correct  one  alleged  violation  of  law  by  compell- 
ing another. 

If  complainant  thinks  the  ratee  from  Sclienectady  and  interme- 
diate points  to  Boston  and  Boston  points  are  excessive  he  can  raise 
that  question  directly  and  distinctly,  and  the  commission  can  then 
enter  upon  a  full  investigation  of  the  facte  bearing  upon  it.  Bat 
the  question  ie  not  made  here.  ' 

It  ia  proper  to  state  that  the  qaestion  whether  a  proportion  of 


^d  by  Google 


640  HARWELL  V.    COLUMBUS   AND   WESTEEN   K.    CO. 

throngli  rates  less  than  tlie  local  ratea  over  the  same  line  can  lav- 
fally  be  accepted,  is  involved  in  a  pending  case,  and  is  awaiting 
furtliei-  evidence  and  ai'gament. 

The  complaint  nuiGt  Oe  diEmissed. 

In  this  opiiiion  all  concur. 

See  not«  to  Allen  e.  Louiaville,  etc,  R  Co.,  npra,  p.  ftSO; 


GOLTDIBUB  AND  WeSTEBIT  B.  Co.  and  WeSTEBN  B.  Co.  of  Ar.ntAM*. 
(^Tateritatt  Commeree  Cbmfnuiim,  Ztemtior  8,  1867.) 

DitBimltar  circumstancea  and  conditions  tnay  be  made  out  bj  the  existence 
of  actual  competition,  which  is  of  controlling  force,  ia  respect  to  traffic  im- 
portant  in  amouDt;  but  tlie  competicioa  must  be  actual,  not  possible,  and  of 
CDutrollinK  force,  as  when  a  competing  water-tine  is  able  to  dictate  lates 
which  will  control  the  traffic  unless  met  by  the  railroad  and  not  when  com- 
petition in  a  single  direction  or  for  the  transportation  of  a  single  article 
or  cisss  Ql  articles  exists,  but  general  competition  of  the  character  stated, 
controlling  the  carriage  o[  the  traffic  on  which  the  discriminstion  is  made. 

The  fact  that  a  railroad  has  water  competition, without  more,  has  not  been 
held  sufficient  to  jnatify  the  lesser  charge  for  the  greater  distance. 

Where  the  relief  asked  should  be  attended  with  a  readjustment  so  general 
that  it  would  aficct  othur  communities  vmrepresented  in  the  pmceedings, 
the  commission  will  grant  no  order  until  the  other  interests  and  localities 
have  been  heard  and  their  respective  claims  considered,  and  will  therefore 
refuse  to  reduce  ihe  rates  to  one  town  to  the  same  point  as  to  two  other 
towns,  thereby  simply  increasing  the  discrimination  aa  to  other  local  points 
wt^o  have  not  been  represented. 

Where  the  evidence  showed  that  through  rates  and  through  billa  of  lading 
on  cotton  oSered  for  shipment  at  Opelika  for  New  Orleans  were  refused  by 
the  railroad,  while  given  on  other  commodities  and  at  other  points  similarly 
utuated,  and  while  the  Tosd's  connecting  lines  making  the  route  to  New 
Orleans  are  ready  and  willing  to  unite  therein,  hdd,  to  be  a  violation  of  the 
third  section  of  the  Act  to  Regulate  Commerce  and  an  order  made  to  demst 
from  said  riolation. 

Walker,  Com. — Complaint  nnder  section  8  of  the  Act  to  Keffo- 
late  Commerce  for  alk'sied  nnjnst  discrimination  against  Opelikt 
in  favor  of  Montgomerv.  Ala.,  and  Cohimbae,  Qa. 

Answers  were  filed  hy  botli  defendants.  The  answer  of  the 
"Western  R.  of  Alabama,  by  Cecil  Gabbett,  general  manager,  is 
qnite  full,  in  substance  alleging  that  rates  at  Opelika  are  the  rendt 
of  considerable  negotiation  and  compromise,  and  althoDgh  lesi  fa- 
vorable than  at  Montgomery  and  Cofnmbns  are  more  favorable  than 


^dbyGooglc 


IKTEESTATE  OOMMBEOB  ACT— LONG  AND  8H0KT  HAUL.   641 

at  Casseta,  Yonnffsboro',  Gold  Hill,  and  other  points  in  the  imme- 
dinte  vicinity  of  Opelika,  claiming  "that  there  is  more  gronnd  for 
ooinpiaiiit  against  the  railroada  for  discriminatine  in  favor  of  Ope- 
lika against  Anbnrii,  Ousseta,  Youngeboro',  ana  Gold  Hill  than 
tliert!  is  for  .Opelika  to  complain  of  discrimination  in  favor  .of 
Montgomery  and  Coinmbns.  The  circumstancea  and  conditions 
whicli  cause  tiio  difference  in  the  rates  between  Opelika  and  the 
cities  of  Montgomery  and  Columbus  are  more  potent  and  forcible 
than  any  that  conld  be  shown  in  favor  of  Opelika  as  againet  ita 
neighboring  towns." 

The  answer  of  the  Coinmbns  &  Western  R.  Co.,  by  E.  P.  Alex- 
ander,  president,  contains  the  following: 

"Montgomery,  eitnated  on  the  Alabama  river,  and  Colnmboa, 
eitnated  on  the  Cliattalioochee  river,  have  lower  rates  than  Opelika. 
The  reason  is  very  plain ;  the  railroads  there  have  water  competi- 
tion, and  are  compelled  to  meet  it.  The  rates  to  Opelika  are  made 
by  adding  to  the  rates  at  Montgomery  or  Coinmbns  a  line  of  rates 
we  call  the '  Ball  Arbitraries,'  as  they  wore  suggested  by  Colonel  Ball, 
one  of  the  State  railroad  commisaionei'S  of  Alabama.  They  are 
less  than  the  local  rates  which  generally  prevail  on  the  railroaids  ia 
that  State. 

"  Opelika  wishes  them  still  further  reduced.  I  am  prepared  to 
say  that  I  ann  not  unwilling  to  reduce  tbem  so  far  as  Opelika  is 
concerned,  if  I  may  be  allowed  to  reduce  them  to  Opelika  without 
making  the  reduction  general  to  all  other  stations  upon. the  line  of 
the  Columbus  &  Western  K." 

The  ease  was  assigned  for  bearing  by  the  commission  on  Oc- 
tober 19,  1887,  at  which  time  the  complainants  were  present  and 
were  heard.  The  defendants  were  not  present,  but  had  admitted 
receipts  of  notice  of  assignment  of  tbe  case  for  that  date.     The 

fencral  subject  of  the  rates  at  Opelika  had  been  previously  brought 
efore  the  commission  at  its  session  in  Atlanta,  Ga.,  on  April  28, 
1887,  when  Mr.  Harwell,  one  of  the  present  complainants,  testifieKi 
at  considerable  length  and  was  croes-examined  by  Mr.  Alexander. 
The  latter  gentleman  also  referred  to  the  subject  in  the  argument 
wbicii  he  mnde  before  the  commission  at  that  time  as  president  cf 
the  Central  R.  Co.  of  Georgia.  The  proceedings  at  Atlanta  are 
referred  to  in  the  petition  in  the  pending  case.  The  commission 
mideretand  that  the  defendants  are  content  to  submit  the  contro> 
versy  upon  tbe  proofs  and  argninents  laid  before  the  commission 
at  Atlanta  and  appearing  in  the  record  of  the  present  proceedings. 
The  facts  found  are  as  follows:  Opelika  is  a  town  of  about  3500 
inhabitants,  located  in  the  eastern  part  of  the  State  of  Alabama, 
109  miles  from  Atlanta  and  66  miles  from  Montgomery.  Tbe 
road  from  Atlanta  to  Montgomeiy^  tbrongh  Ojieiika,  is  composed 
of  tbe  Atlanta  &  West  Point  R.  and  tbe  Western  R.  of-Alabama, 
81  A.  A;  E.  R  Cas.— 41 


^d  by  Google 


642         HABWELL  V.  COLUKBOS  AND  WESTEBN  K.  CO. 

which  connect  at  West  Point,  on  tlie  State  line,  and  are  operated  as 
a  coiitinnoaa  line  from  Atlanta  to  Montgomery  by  the  same  maoage- 
ment.  Columbus,  Ga.,  isfiitnated  29  miles  eoutlieastof  Opetika,oa 
the  GoluiDhiie  &  Western  K,  which  is  a  part  of  the  Central  R.  of 
Georgia  gystem,  extending  from  Savannali  westerly  across  Georgia 
into  Alal^ina.  The  Columbns  &  Western  R,  is  prolonged  throngh 
Opclika  (where  it  croBsee  the  Western  R.  of  Alabama)  in  a  nortn- 
westerly  direction  toward  Birmingham,  being  operated  a  dietanca 
of  60  miles  to  Goodwater.  Another  railroad,  called  the  Eaat  Ala- 
bama R,,  extends  directly  north  from  Opelika,  a  distance  of  22 
luilee,  to  Btiffalo,  in  Alabama. 

Opelika  is  snrroanded  by  a  territory  producing  cotton  and  con- 
Buming  provisions  and  other  prodncts  of  the  Western  and  North- 
ern States.  Columbus  is  eurronnded  by  a  siniilar  territory  and  ia 
upon  the  east  bank  of  the  Chatahoocliec  river,  which  at  that  point 
is  the  bonndarj  between  the  States  of  Georgia  and  Alabama.  This 
river  is  navigable  except  in  the  dry  season  of  the  year. 

Montgomery,  in  tJie  centre  of  Alabama,  is  on  the  main  line-  of 
the  Louisville  &  Nashville  R.,  extending  from  Cincinnati  to  New 
Orleans.  It  is  also  reached  by  the  Central  R.  of  Georgia,  via 
Eufala,  and  by  the  Western  R.  of  Alabama,  as  above  stated,  ex- 
tending throngh  Montgomery  to  Selma  on  the  west ;  it  is  bIeo  situ- 
ated on  a  navigable  sti-eara.  The  rates  from  the  Northern  and 
"Western  States  to  Montgomery  by  tlie  Lonisville  and  Nashville, 
via  Birmingham,  and  by  the  Western  R.  of  Alabama,  via  Atlanta, 
are  the  same ;  and  are  considerably  less  than  the  rales  from  the 
Northern  and  Western  States  to  Opelika.  The  rates  from  the 
Northern  and  Western  States  to  Columbns,  by  way  of  the  Louis- 
ville &  Nashville  R,  and  Montgomery,  and  also  by  way  of  At- 
lanta, in  both  cnses  passing  over  the  Weetei-n  R.  of  Alabama  to 
Opelika,  thence  29  miles  over  the  Columbus  &  Westeni  to  Colum- 
bus, are  also  considerably  less  than  the  rates  to  Opelika.  The 
Centra]  R.  of  Georgia  also  has  another  more  southerly  ronle  from 
Montgomery  to  Columbus,  via  Union  Springe,  on  the  Montgomery 
and  Eufaiila  line.  The  Central  R.  Co.  of  Georgia  also  conti-olB 
the  Western  R.  of  Alitbama  as  part  of  its  general  system,  so  that 
the  rates  to  both  Opelika  and  Columbus  are  practically  established 
by  that  company,  of  which  Mr.  Alexander  is  president;  and  at 
Montgomery  by  that  company  acting  in  hanuony  with  tlie  Louis- 
ville &  Nashville  R.  Co. 

For  example,  it  appears  that  the  rates  from  Oinoinnati  are  as 
follows : 

To—                  1  S84SeABCDBHF 

■oDtgomerr 108  lOa    88    71    59    47    83    88    S2    28    Sa    07    SO 

Columbus 117  109    91    78    68    53    82    40    85    81     04    S9    62 

OpcUka 160  130  107    90    7S    82    40    28    48    87    66    89    M 


^d  by  Google 


INTERSTATE  COMMEECE  ACT— LONG  AND   SHOET    HATJL.    643 

Cuaseta  ie  a  station  on  tlie  Western  K.  of  Alabama  eleven  miles 
northeast  of  Opelika.     A  Monteonierj  jobber  can  pnrcliase  iirst- 

■ctase  goods  in  Ciiicinuati,  have  tliein  shipped  to  Moiitpimery  for 
41-08,  then  back  to  CuBeeta  for  53  cents — total,  |1.61 — passing 
through  Opelika  twice  in  bo  doing.  An  Opelika  jobber  would  pay' 
on  the  same  goods  |1.50  from  Cincinnati  to  Opelika  and  22  cents 
from  Opelika  back  to  Cusseta,  making  a  total  of  $1.72.  Diideville 
is  a  station  on  the  Colambas  &  Western  extension  thirty  miles 
noi'tliweet  from  Opelika.  A  Columbus  jobber  can  purchnse  first- 
class  goods  at  Cincinnati,  paying  to  Colanihns  $1.17;  thence  to 
Dadcviile,  66  cents;  total,  $1.83,  passing  thrangh  Opelika  in  both 
directions.  The  Opelika  jobber  would  pay  on  tlie  same  goods : 
Cincinnati  to  Opelika,  $1.50 ;  Opelika  to  Dudeville,  59  cents ;  total,  > 
$2.09.  The  rate  on  Sour  from  St.  Louis  to  Hontgoniery  is  59 
■cents  pel'  barrel  by  way  of  Binninghara  or  by  way  of  Atlanta, 
while  the  Opelika  rate  is  90  cents  nnd  the  Columbns  rate  76  cents. 
The  rate  from  Montgomery  to  La  Grange,  Ga.,  through  Opelika, 
is  64  cents,  which,  added  to  59  cents,  makes  a  charge  of  $1.23  as 
the  rate  a  Munto^omery  jobber  can  handle  flour  at  La  Grange.  The 
rate  from  Opelika  to  La  Grange  is  42  cents,  making  $1.32  as  tlie 
rate  the  Opelika  jobber  can  handle  floor  at  La  Grange,  with  132 
miles  shorter  lumi.  The  present  rate  from  New  York  to  Opelika 
is  $1.65,  first-class;  to  Montgomery,  66  miles  further,  through 
Opelika,  $1.00.  The  rate  on  cotton  is  52  cents  per  hundred  pounds 
from  Opelika  to  Savannah,  Ga. ;  from  Montgomery  and  Columbas 
to  Saviinnah'thc  rate  is  45  cents  per  hundred  pounds.  No  through 
rate  is  statedaiid  no  through  bills  of  hiding  are  issued' on  cottoa 
from  Opelika  to  New  Orleans.  In  order  to  ship  cotton  to  New 
Orleans  a  local  rate  of  27  cents  to  Montgomery  is  charged,  and  the 
Kiotton  has  to  be  rebilled  from  that  point. 

The  foregoing  ilhisti'ationB  are  examples  of  the  rates  made  on 
every  class  of  merchandise  from  and  to  all  northern  and  westera 
points  and  the  Eeal>oarJ.  Upon  the  foregoing  facts  tlicre  seems  to 
be  no  question  but  that  the  charge  of  discrimination  against  Ope- 
lika and  in  favor  of  Columbus  and  Montgotnery  is  snlWantiated. 
Indeed,  this  is  not  denied  by  the  defendants,  who,  however,  claim 
that  the  discrimination  is  founded  npon  grounds  which  i-ender  it 
not  unjust.  The  practical  result  in  this  case  is  the  natnral  one, 
namely,  that  the  Opelika  merchants  have  been  unable  to  snccesB- 
fully  compete  with  the  merchants  of  the  rival  towns  in  their  ef- 
forts to  make  Opelika  a  distributing  point.  The  value  of  real 
estate  Una  largely  deci'eased.  The  business  of  iiandling  cotton  for 
sales  abroad  baa  been  diverted  to  other  towns  to  a  great  extent; 
Jiiid  the  town,  although  the  most  important  in  population  and  loca- 
tion on  the  line  between  Atlanta  and  Montgomery,  has  not  held 
its  own  in  the  progress  of  the  last  decade,  but  has  been  outstripped 
by  its  competitors  and  practically  left  behind. 


^dbyGoOglc 


644         HAEWELL  V.   OOLTJMBTJS  AHD  WE8TEEN  B.  CO. 

Tlie  considerations  noon  vbicli  the  defendants  attempt  to  ins- 
tifj  their  treatment  of  tliis  community  involve  broader  qnestiocs 
than  thoee  presented  by  the  present  rates  between  two  or  iLree 
neighboring  towns  and  cities.  The  qneetion  from  the  standpoint 
of  the  defendants  cannot  be  considered  witlioiit  entering  to  Eome 
extent  upon  the  method  under  which  freight  rates  are  made  in 
the  Southern  States,  as  related  to  the  reqniremenis  of  the  fonrlh 
section  of  the  Act  to  Regulate  Commerce.  Their  position  amounts, 
in  substance,  to  this :  Tliat  they  admit  that  tlie  rates  to  Mont- 
gomery and  Columbus  are  made  less  for  the  longer  haul  than  to  in- 
termediate points  on  the  same  line  of  i-oad,  hot  that  they  are  ]□»- 
tified  in  eo  making  them  by  reason  of  the  water  competition 
which  exists  at  those  points,  and  which  compels  the  establishment 
of  very  much  lower  rates  than  naturally  tiould  be  made,  wliile 
they  claim  that  the  rates  to  intermediate  points  are  reasonable  uid 
inst ;  but  they  say,  in  substance,  that  what  the  mefeliants  of  Ope- 
lika  desire  is  the  establisliment  in  their  favor  of  another  compet 
ing  point  or  "  trade  centre  "  at  which  the  rates  shall  be  materially 
lower  than  to  intermediate  points  on  the  same  line,  thus  inviting 
them  to  commit  a  stiil  fnrtlier  breach  of  the  letter  of  the  fonrtb 
section  without  the  justiiJcation  of  water  competition,  which  exiets 
in  respect  to  the  other  places  named.  This  tltcy  say  they  are  not 
willing  to  do,  insisting  that  Opelita  cannot  be  properly  treated 
otherwise  than  as  a  local  station  on  the  line  of  the  Western  Bail- 
.  way  of  Alabama;  and  not  having  the  advantages  of  water  com- 
petition cannot  ask  the  railroads  arbitrarily'  to  give  them  each  a<i- 
vantages  as  they  would  have  if  located  upon  a  navigable  stream. 

Another  complication  is  found  in  a  circumstance  referred  to  in 
Mr.  Gabbett's  answer,  namely,  that  this  controversy  is  one  of  long 
standing,  which  in  1884  was  made  the  snbject  of  investtgation 
by  tlie  State  railroad  commissioners  of  Alabama,  who  were  of 
the  opinion  that  tlie  law  under  which  tliey  were  acting  reqnired 
more  liberal  treatment  of  Opelika  on  the  part  of  the  roads.  Tbe 
arrangement  which  was  then  made  was  not  satisfactory  to  Opelika, 
although  a  concession  to  some  extent  was  instituted.  It  appeait 
that  a  system  of  arbitrary  figures,  called  the  "  Ball  Avbitraries," 
was  then  established,  whereby  tho  Opelika  rate  was  made  by  add- 
ing these  arbitrary  figures  to  tbe  nites  (o  Montgomery  or  Colnra- 
bus.  the  result  being  that,  although  the  Opelika  rates  were  con»d- 
erably  higiier  than  tlie  rates  at  those  points,  nevertlieless  they  were 
somewhat  lower  than  the  rates  at  the  adjoining  points  in  its  vicin- 
ity. Tims  for  example  the  rates  furnished  tlie  cotnniission  bj 
the  Louisville  and  Nashville  R.  Oo.  from  Louisville,  Kentucky, 
in  effect  from  August  20tli,  1887,  show  ihe  following  on  floor 
per  barrel : 


^d  by  Google 


INTEBSTATE  COUHUBOB  ACT — LONG  AND  SHOBT  HAUL.  646 


HoQtgomerj,  AU.,  63  cts. 

Columbua,  Ga,,  S8    " 

Eufagia,  Ala.,  08    <■ 

Atlanta,  Qs.,  64    " 

Opelika,  Ala.,  73    " 

Auburn,     "  60    "    Seven  miles  west  of  Opelika. 

Salem,       "  83    "    Ten  miles  southeast  of  Opelika,towardaCol'mb'B. 

Cuaseta,     "  91    "    Nine  miles  northeast  of  Opelika, towards  Atlanta. 

Dadeville  "  110    "     Thirty  miles  northwest  of  Opelika,  on  the  Co- 

lumbus and  Western  Extension. 

Buffalo,      "  87    "    Twentj-two  miles  north  of    Opelika,   on    the 

East  Alabama  Railroad. 

From  these  examples  which  illustrate  the  rates  on  every  eom- 
moditj  to  all  points  eimilarl;  situated,  it  is  apparent  that  while 
the  rates  to  Opelika  are  considerably  higher  than  the  rates  to  Mont- 
gornerj,  Columbus,  and  Enfaiila,  they  are  nevertheless  consider- 
ably lower  than  the  rates  to  the  neighboring  points  in  every  direc- 
tion. In  other  words,  Opelika  is  now  treated  by  the  railroad 
companies  to  some  extent  as  a  competing  point  or  trade  centre  aa 
against  the  surroanding  towns,  but  does  not  receive  this  treatment 
tu  a  snfBcient  extent  to  enable  it  to  compete  with  otiier  distribut- 
ina  points,  or  to  satisfy  the  desires  of  its  citizens ;  and  while  the 
raili-oad  companies  say  that  they  cannot  properly  give  Opelika 
fnrther  concessions  in  rates,  by  reason  of  the  nnfairness  to  the 
neighboring  points  which  snch  conceessiona  wonid  involve,  never* 
theless  they  admit  that  they  are  making  such  concessions  at  the 
present  time  to  a  considerable  extent.  Mr.  Alexander's  answer  is 
very  explicit  in  its  statement  tliat  he  is  not  nnwilling  to  rednce 
the  Opelika  rates,  provided  he  may  do  so  witliont  making  the  re- 
daction general  to  all  other  stations,  while  Mr.  Oabbett'e  answer 
IB  equally  explicit  in  showing  that  Opelika  already  enjoys  large 
advantages  over  G-old  Hill,  Youngsboro\  Anbam,  Casseia,  and  its 
neighboring  towns  generally. 

That  this  result  is  the  natni-al  ontcome  of  that  system  of  rate- 
making  which  the  interstate  commei'ce  law  found  in  force  npon 
most  of  the  railroads  of  the  Southern  States  is  admitted  by  Hr. 
Gabbett,  who,  in  his  answer,  says:  "Samples  can  be  fonnd  all 
thronghont  the  South,  similar  to  that  of  Opelika,  where  rival 
roads  have  not  reduced  the  rates  to  an  undesirable  figure.  None 
of  such  points  can  get  freight  from  the  West  and  sell  to  any  sta< 
tion  beyond  them  at  as  low  an  aggregate  as  Montgomery,  Colum- 
bus, and  Selma  can  ;  nor  can  the  rates  be  coTistructed  to  allow  this 
withont  making  the  rates  to  all  railroad  stations  in  the  State  the 
flame,  which  would  destroy  the  railroad  property  in  this  State." 

It  was  in  view  of  cases  like  the  present  that  the  opinion  of  the 
commission,  in  deciding  npon  the  application  of  the  Louisville  and 


^d  by  Google 


646  HABWELL  V.    OOLUHBUS  AND  WEBTERN   B.    00. 

Kaeliville  R.  Co.  for  relief  nnder  the  fourth  section  of  the  act,  dis- 
onssed  the  subject  of  "  trade  centi-ee  "  in  t)ie  Soath,  asing  among 
other  things  the  following  language :  "  The  prevalence  of  such 
ideas  and  the  acting  upon  them  in  making  freight  tariffs  give  to 
railroad  niaiiagerBapowerof  determining  within  certain  limits  wliat 
towns  shail  be  trade  centi-ee  and  what  their  relative  advantages; 
and  while  it  may  be,  as  they  assert  it  is,  that  in  deciding  apon 
rates  under  the  presanre  of  the  competition  of  trade  centres  tliey 
endeavor  to  do  instice  between  them,  yet,  as  they  do  not  at  th& 
same  time  feel  a  like  presBQ  re  from  n  on -competitive  points,  it  is  ob- 
vious that  jnstice  to  such  points  is  in  great  danger  of  being  over- 
looked, and  it  is  altogether  likely  that  it  is  to  some  extent. 

"One  result  is  that  towns  recognized  by  railroad  managers  as 
trade  centres  come  to  be  looked  upon  as  towns  with  special  advan- 
tages; and  other  towns  strive  for  recognition  as  sncli,  and  com- 
plain, perhaps,  of  injustice  when  they  fail." 

Tlie  system  of  rate-making  in  the  Southern  States,  which  was 
quite  genei-allv  operative  when  the  Act  to  Regulate  Commerce  took 
effect,  and  which  is  still  employed  upon  tlie  roads  here  in  ques- 
tion, is  this :  Certain  large  cities  and  towns  sitnated  on  the  coast  at 
interior  river  points  and  at  railroad  jnnctions  are  called  competi- 
tive, and  receive  quite  low  i-ates  on  all  intersta  te  traffic ;  all  other 
stations  are  called  local,  and  are  charced  much  higher  rates.  The 
rates  to  local  points  are  made  by  adding  to  the  competitive  rate 
at  tlie  nearest  competitive  point  the  local  rate  from  that  poinL 
These  local  rates  are  aecertained  npon  a  short-distance  mileage 
basis,  frequently  by  using  the  table  established  or  approved  by 
State  railroad  commiseionets.  The  intermediate  or  local  stations 
are  "  given  the  benefit "  of  what  is  called  the  lowest  combination 
—that  is,  if  the  rate  to  the  competitive  point,  plus  the  local  rate 
to  the  given  point  beyond,  exceeds  the  rate  to  the  next  competi- 
tive point,  plus  the  local  rate  back  to  the  given  point,  the  latter 
rate  is  taken. 

Thus  between  every  two  competitive  points  the  graphic  repre. 
sentation  of  the  rates  npon  paper  would  eSiow  a  rise,  increasing  rap- 
idly until  the  iiighest  point  is  i-eached  at  some  station  intermediate, 
and  then  descending  as  rapidly  to  the  other  end  of  the  line. 
Under  tliis  system,  the  rates  on  first-class  freight  from  Louisville 
to  the  various  stations  on  the  road  between  Atlanta  and  Mont- 
gomery are  as  follows  (Louisville  and  Kashviile  fi.  Co.  tariff, 
August  20,  1887;  distance  Louisville  to  Athinta,  476  miles; 
,  Louisville  to  Montgomery,  490  miles) : 


^d  by  Google 


UTTEBSTATB  OOMMEEOK  AOT^-tONO  AHD  SHOKT  HAUL.  647 

DUtaDOe 

SxATKni.  Rftte.  from 
Atlanta. 

AtUota tl  07  MilM. 

East  Point 1  28  6 

Fairbnrn 1  SI  IS 

Palmetto 1  38  SO 

Newman           .        .        .       ' 1  89  89 

OrantvUle 1  47  61 

HogansTille 1  47  58 

La  Orange 1  54  71 

Qabbettville 1  64  80 

West  Point 1-S8  87 

CuBBeU 1  51  S8 

Opelika 1  80  109 

Aiibura 1  45  11« 

Loachapoka 1  43  123 

Notasulga 1  41  189 

Chebaw 1  86  1S« 

Coitles 1  80  146 

Shorter's 1  2S  163 

Mount  Hbigs 1  20  161 

Montgomery 08  176 

It  will  be  seen  that  the  ratee  to  points  between  Montgomery 
and  Atlanta  (except  Opelika,  which  is  treated  exceptionaTlj)  are 
made  by  adding  the  local  rates  to  the  rate  of  one  of  said  Bpecial 
points  or  "trade  centres;"  and  that  the  rates  are  bigbeet  at  La 
Orange  and  Gkbbettrille,  about  midway  of  the  total  distance, 
where  they  are  69  per  cent  higher  than  at  Montgomery.  Tbe 
evidence  before  ns  shows  that  business  from  Louisville  for  these 
local  points  is  about  as  likely  to'  go  through  Montgomery  as 
throagli  Atlanta.  The  rate  either  way  is  the  same,  and  so  of  all 
Otlter  nortliern  and  western  points.  The  disproportion  of  the 
charges  made  to  die  above  enumerated  local  points  in  the  last  few 
miles  of  a  500-mile  haul  is  obvious. 

It  is  true  that  in  this  instance  the  freight  is  received  at  Atlanta 
or  at  Montgomery  by  a  new  cari-ier,  but  the  same  system  is  ap- 
plied in  ease  a  so-called  competitive  point  is  passed  on  the  line  of 
the  same  carrier. 

In  the  distance  tariff  funiished  by  tl)e  railroad  commission  of 
Georgia  the  increase  in  the  tariS  on  tirst-class  freight  between  400 
and  420  miles  is  three  cents,  while  the  charge  for  a  single  hanl  of 
20  miles  ie  twenty  cents;  yet  on  freight  from  Cincinnati,  Ohio,  to 
East  Point,  tlie  Atlanta  &  West  Point  K  Co.  adds  to  tlie  Atlanta 
rate  as  mneh  as  it  charges  upon  freight  to  East  Point  wbicb  origi- 
nates in  Atlanta,  and  so  of  all  otlier  stations  on  its  line ;  and  tne 
Central  R,  Co.  of  Georgia,  in  making  a  rate  from  Savannah  to 
the  West  wholly  on  its  own  road — for  instance,  to  Salem,  Ala- 
bama— cbargea  the  established  "competitive"  rate  to  Columbns, 
292  miles,  and  adds  thereto  the  local  iiite  for  19  miles,  Oolumbos 


^d  by  Google 


648  HARWELL  V.    COLnUBDS   AND   WEBTEBN   E.    CO. 

to  Salem ;  tlms,  on  fertilizere,  per  ton,  $3.00  pins  $1.40  =  $4.40, 
Savannah  to  Salem  ;  being  $3.00  for  202  miles,  to  whicli  is  added 
$1.40  for  tlie  last  10  iniies  of  tlie  liaul,  m&king  $4.40  total  rate. 

Under  tiie  use  of  this  system  the  railroads  have  to  a  very  lar^ 
extent  absorbed  the  biisinesE  which  in  the  past  was  done  by  steam- 
boats at  competitive  points,  and  tliis  is  true  at  Columbua,  one  of 
the  points  in  question,  as  to  wliicli  it  is  said  in  the  answer,  "  the 
water  competition  on  western  products  by  steamboats  has  practi- 
cally ceased  daring  tlie  past  three  or  four  years,  owing  to  the  re- 
duction of  rates  by  rail  lines  to  tlint  point  from  the  West ;  bnt 
ehonld  the  rates  be  raised  from  the  West  to  Columbus  competition 
would  again  ensue  similar  to  wliat  it  was  prior  to  1881."  Thus  it 
ie  claimed  generally  that  rates  to  these  competing  points  cannot  be 
raised  without  endangering  the  business  of  the  roads,  while  1*3168 
at  intermediate  points  cannot  be  lowered  without  serious  embar- 
rassment of  their  revenue.  As  has  been  seen  above,  Opelika  is 
"neither  fish  nor  fowl."  Its  treatment  has  not  been  consistent, 
nor  has  it  been  satisfactory  either  to  the  railroads  or  its  citizens. 
It  does  not  receive  the  low  rates  of  the  made  centres,  nor  are  the 
high  rates  charged  at  intermediate  points  exacted.  It  nrgently 
desires  to  become  a  trade  centre,  and  insists  that  its  situation  as  a 
branching  point  for  several  railroads  is  one  tlmt  entitles  it  to  such 
consideration,  even  at  the  expense  of  the  neighboring  communities ; 
vhile  railroads  have  been  unwilling  to  concede  to  it  any  other 
position  than  that  conceded  to  local  points  between  competitive 
points,  using  the  fact  of  the  injustice  to  neighboring  communities 
as  an  excuse  in  this  behalf. 

It  teas  the  hope  of  the  commission  after  the  announcement  od 
June  15,  1887,  of  its  decision  upon  the  suMect  of  the  application 
of  the  fourth  section  in  the  Louisville  and  Nashville  case,  that  the 
railroads  in  the  South,  as  well  as  in  other  parts  of  the  Union, 
would  endeavor  to  reform  their  tariff  schedules  so  as  to  bnng 
tbemgradually  into  conformity  with  the  general  provision  of  the 
law.  It  was  said  in  that  opinion  that  "our  observation  and  inves- 
tigations so  far  made  lead  to  the  conclneion  that  strict  conformity 
to  the  general  rule  is  possible  in  large  sections  of  the  country 
without  material  injurv  to  either  public  or  private  interests;  and 
that  in  other  sections  tlie  exceptions  can  be  made  and  ought  to  be 
made  much  less  numerous  than  they  iiave  been  hitherto,  and  that 
when  exceptions  are  admitted  the  charges  should  be  less  dispro- 
portionate." 

Since  the  promulgation  of  that  opinion  and  the  fnll  announce- 
ment of  the  views  of  the  commission  therein  made  concerning 
the  construction  of  the  fourth  section,  the  tariffs  whicli  are  being 
daily  received  show  that  a  reconstruction  of  the  rates  has  been 
{!;oing  on  continually,  with  more  or  less  effort  to  bring  the  same 
into  h&rmoay  witli  the  views  then  expressed.    This  effort  has 


^d  by  Google 


INTERSTATE   OOMMSBCIS  ACT — LOWG  AND   SHORT  HAUL.   649 

beeu  obeerrable  upon  many  of  tlie  rcids  of  tlie  Sonthern  States,  as 
well  as  ill  oclier  portions  of  the  country.  , 

The  coiiimisaioii  has  failed  to  observe  npon  the  lines  controlled 
by  the  Centra]  R.  Co.  of  G-eorgia  any  decided  effort  towards  a 
reconstrnction  of  its  rates  in  the  direction  snggeeted  by  its  former 
opinion  as  reqnired  in  order  to  conform  to  the  provisions  of  the 
Act  to  Regniate  Commerce.  So  far  as  the  observation  of  the  com- 
mission goes,  the  system  in  force  prior  to  April  5,  1887,  is  still 
substantially  maintained  upon  that  line.  The  old  trade  centre 
rates  are  made  to  "  competing  points,"  and  the  local  rates  to  iti- 
terior  points  are  added  as  before. 

It  ta  possilile  that  the  irregnlaritics  and  ineqnalities  in  existing 
tariffs  cannot  be  made  entirely  to  disappear  without  a  general  re- 
adjustment of  tlie  aiTarigements  under  which  traffic  is  interchanged,  _ 
involving  the  adoption  of  a  new  system  of  the  division  of  earnings 
between  connecting  lines,  and  a  new  system  of  making  rates; 
but  the  commission  is  satisfied  that  very  extensive  improvements 
are  possible  at  once,  and  that  very  material  changes  in  the  present 
methods  are  reqnired  by  the  law. 

These  suggestions  arise  directly  from  the  position  taken  by  the 
defendants  in  their  answers.  It  is  not  tiie  intention  of  the  com- 
mission to  dispose  of  such  questions  hastily,  nor  in  the  absence  of 
a  distinct  unaeratanding  that  they  are  presented  for  consideration 
and  adjudication. 

In  disposing  of  the  present  petition  it  must  be  borne  in  mind 
that  the  complainants  ci^rge  a  violation  only  of  the  second  and 
third  sections  of  the  Act  to  Regulate  Commerce;  but  in  attempting 
to  jastify  the  discriminations  adopted  and  enforced  in  the  OpeHka 
rates  the  defendants  claim  that  what  are  styled  competitive  rates 
are  too  low  upon  any  view  except  that  they  are  forced  upon  the 
roads  by  water  competition  ;  that  the  roads  would  raise  them  and 
equalize  their  rates  generally  but  for  that  fact,  which  prevents 
their  doing  so,  and  that  it  is  not  unjust  discrimination  or  undue  or 
unreasonable  prejudice,  wliich  is  based  upon  physical  facts  and 
whicli  recognizes  only  natural  diversities  of  situation 

The  weight  of  tliese  claims  has  been  conceded  by  the  commis- 
sion in  the  case  above  referred  to.  Dissimilar  circumstances  and 
conditions,  it  was  said,  may  be  made  out  by  "the  existence  of 
actual  competition,  which  is  of  controlling  force,  in  respect  to 
traffic  important  in  amount."  Those  words  were  chosen  with 
caTe,  and  the  limitations  which  they  suggest  are  applicable  when 
the  controlling  force  of  water  competition  is  invoked  in  respect 
to  the  second  and  third  sections  of  the  act,  as  well  as  in  respect 
to  the  fourth.  The  commission,  in  expressing  the  result  reached, 
named  as  an  exceptional  circumstance,  to  be  proved  if  existent, 
the  fact  of  "actual  competition" — not  possible  competition  likely 
to  arise  if  rates  are  raised — "of  controlling  foi-ce" — not  when 


^d  by  Google 


650         HARWELL  V.    OOLUMBtTS  AND   WESTERN   R.    CO. 

the  rail  line  is  the  controlling  force,  bnt  when  the  competing 
water  line  is  ablo  to  dictate  rates  wliich  will  control  the  tmffic 
QtileBs  met  by  the  railroad — "iu  respect  to  traffic  important  in 
amoiini" — not  when  competition  in  a  eingie  dii'ection  or  for  the 
transportation  of  a  eingie  article  or  class  of  articles  exists,  bnt  ^n- 
eral  competition  of  the  character  stated,  controlling  the  carriage  of 
the  traffic  on  which  the  discrimination  is  made. 

As  hue  been  said,  the  answer  of  tlie  ColutnbuB  and  Western  R. 
Co.,  speaking  of  the  lower  rates  now  enjoyed  by  Montgomery  and 
Cohirnbns,  s;iys:  "The  reason  is  very  plain;  the  railroads  have 
water  competition  and  are  compelled  to  meet  it."  But  that  fact, 
withont  more,  has  not  been  held  snfficient  to  justify  the  lesser 
charge  fur  the  greater  distance,  much  less  to  jnstify  tlie  making  of 
ench  tariffs  as  have  been  applied  on  tlie  roads  in  qneetion.  The 
results  are  abriormal,  not  only  at  Opelika,  bnt  ail  along  the  line. 
They  are  simply  leas  disproportionate  at  Opelika  than  at  other 
points  in  its  vicinity.  There  is  no  proof  now  before  the  commis- 
sion of  actnal  competition,  of  controlling  force,  at  Columbafl. 
Tiie  evidence  is  to  the  contrary.  Were  it  not  for  the  knowledge 
heretofore  acquired  by  the  CommiBsion  respecting  the  competitive 
factors  at  Montgomery,  it  could  hardly  be  claimed  that  anything 
JD  the  nature  of  a  justification  is  shown.  The  commission  is 
awiire  that  an  independent  and  active  line  of  river  steamers  con- 
sects  that  point  with  the  Atlantic  seaboard  via  Mobile.  How  the 
defendants  would  attempt  to  justify  snch  a  disparity  .of  rates  as 
exists,  for  example,  between  Cowles  and  La  Grange,  or  even  be- 
tween Opelika  and  La  Grange,  is  not  made  manifest  in  this  case. 

Aa  tlie  case  is  now  presented  it  seems  clenr  that  Opehka  and 
other  places  in  its  vicinity  ai-e  unjustly  discriminated  against  under 
the  system  of  rate  making  now  in  force;  but  it  is  not  so  clear  that 
any  reUef  can  he  given  to  Opolika  npon  the  present  petition. 

It  would  tend  to  a  correttinn  of  the  discrimination  if  the  inter- 
state rates  to  Columbus  and  Montgomery  should  be  raised,  leaving 
intermediate  rates  as  they  are;  but  we  do  not  uiidcrgtand  that  this 
is  asked  or  expected  by  the  petitionee,  and  we  should  not  be 
willing^  to  entertain  such  ,a  suggestion  withont  awarding  to  the 
comLiiunities  to  be  affected  the  opjwrtunity  of  being  heard  thereon. 

It  is  evident  that  the  petitioners  in  their  evidence  and  in  their 
proposed  relief  are  proceeding  npon  an  assoinption  that  the  exist- 
mg  syerem  is  founded  in  tlie  nature  of  things  and  is  to  be  per- 
petuated. Under  that  system  there  are  trade  centres  which  enjoy 
special  privileges,  and  Opelika  deserves  to  be  entitled  to  be  placed 
in  that  class  and  to  enjoy  like  privileges.  It  does  not  expUcitly 
ask  to  have  the  long  and  short  haul  clause  of  the  statute  enforced, 
and  it  ia  doubtful  whether  its  enforcement  would  be  for  the  inter* 
est  of  the  merchants  of  Opelika. 

What  the  petitioners  ask  is  that  the  discrimination  against  their 


^d  by  Google 


IKTSBSTATE  OOHUEBOE  ACt—LOTSQ  AinO  8H0BT  HAUL.  66r 

town  in  favor  of  Montgomery  and  Golnmbne  be  etopped.  Wliat 
they  mean  is  that  the  rates  at,  Opelika  be  reduced ;  but  the  order 
which  they  seek  would  iDcreaee  the  existing  discrimination  under 
the  Ball  Arbitrarios  in  favor  of  Opelika,  as  against  the  local 
points  on  each  side  of  it;  this  t)ie  commieeion  cannot  now  consent 
to  direct.  The  relief  of  Opelika,  in  order  to  do  no  injustice  to  other 
points  and  to  involve  no  violation  of  law  in  granting  it,  must  be 
attended  with  a  readjnstment  so  general  that  other  interests  and 
localities  should  be  first  heard  and  their  respective  claims  consid- 
ered. 

If  the  commission  were  to  grant  sneh  an  order  as  the  petition- 
ers desire,  it  migjit  be  understood,  in  view  of  existing  conditions 
and  of  tlie  position  tnken  in  defendant's  answer,  to  decide  that  the 
circumstances  prevailing  in  the  district  abont  Opelika  are  such  as 
to  justify  making  that  city  an  exception  under  the  fourth  section 
of  the  Act  to  BegnlaCe  Commerce,  as  against  the  local  stations 
about  it ;  but  no  order  can  be  made  in  this  case  at  the  present  time 
vhich  shall  authorize  such  an  exception  for  two  very  obvious  rea- 
sons: First,  the  question  whether  the  cironmstancesand  conditions- 
are  exceptional  in  fact  to  an  extent  that  would  warrant  an  order 
was  not  presented  by  the  petition  in  the  cnee,  and  no  proofs  upon 
that  8ul)]ect  are  before  qb  showing  any  ground  for  such  exception ;. 
second,  the  points  that  would  be  injurionsly  affected  by  such  an 
order  are  not  before  the  commissioD  and  have  no  opportunity  to- 
be  lieaM. 

In  view  of  what  has  been  above  said,  it  may  be  that  the  defend- 
ants will  recognize  the  necessity  of  making  a  revision  of  tlieir  rates 
with  a  view  to  lessen  the  discrepancy  between  the  rates  at  Mont- 
gomery and  Columbus  and  those  at  intermediate  points.  Should 
tliey  do  so  to  the  satisfaction  of  the  complainants  no  further  pro- 
ceedings npon  this  petition  wilt  be  necessary. 

Butif  tlnitis  not  done  and  complainaiitsdcsire  to  proceed  further 
they  should  be  allowed  to  amend  their  petition  so  as  to  set  out  the 
facts  on  which  they  cluim  for  themselves  lower  rates  than  are  given 
to  towns  nearer  Atlanta,  Montgomeri.-,  and  Colnnibus,  The  com- 
mission will  then  make  an  order  for  notifying  the  localities  to  be 
afiecied  and  for  furtiier  hearing  upon  the  qnestiona  so  presented. 
If  the  general  subject  of  freight  vales  from  (loinrs  in  other  States 
to  the  various  points  on  the  lineof  the  defendants'  roads,  includinj^ 
Opelika,  is  to  be  brought  before  the  commission,  the  petition  may 
be  so  amended  as  to  distinctly  so  state,  for  defenaant's  action 
would  be  materially  inflnence^  by  the  natnre  of  the  relief  asked, 
and  the  other  towns  could  also  be  advised  of  the  matters  pending 
affecting  their  interests;  and  if.. on  the  other  hand,  complainants 
shall  see  fit  to  ask  for  a  strict  enforcement  of  the  long^-and-snort-hanl 
clanseas  against  Cohimbns  and  Montgomery,  or  either,  they  will 
still  need  an  amendment  to  their  petition,  and  in  that  case  the  towns 


rczoJ.vCoOt^lc 


6o9         HAEWELL  V.    OOLDMBna  AHD   WESTEKS  E.   CO. 

which  are  now  favored  witli  the  lower  charges  on  the  shorter  hanls 
could  he  given  an  opportunity  for  a  }iearing. 

The  complaint  makes  an  iiidependeiit  point  of  the  treatment  to 
which  Opelika  is  subjected  by  tlie  carriere  in  i-espect  to  the  article 
of  cotton.  It  is  eaid  that  the  rate  fi-om  Opelika  to  Savannah  via 
Columbus  and  the  Georgia  Central  is  52  cents  per  hnndred,  wliile' 
the  rate  to  the  same  point  by  the  same  system  from  both  Mont- 
gomery and  Columbus  is  but  45  cents.  Tlie  causes  and  methods  , 
operating  Co  produce  this  result  are  the  same  above  described  and 
commented  on.  It  is  futher  said  that  Opelika  lias  no  throuf;li  rate 
to  New  Orleans  at  all  on  cotton,  and  can  get  none  from  the  rail- 
road authoi'ities,  although  it  has  good  and  ample  facilities  for  the 
handling  of  cotton,  and  formerly  sliipped  26,000  bales  per  year, 
now  reduced  to  from  12,000  to  15,000  bales.  The  rate  on  cotton 
from  Montgomery  to  New  Orleans  is  45  cents  per  hnndred,  and 
the  local  rate  charged  Opelika  on  cotton  to  Montgomery  ia  27  cents, 
making  72  cents  to  New  Orleans,  which  shuts  the  door  against 
that  market„leaving  it  only  the  Savannah  ontlet. 

These  facta  are  not  denied  by  the  defendants.  All  that  we  have 
upon  this  subject  from  them  is  contained  in  the  following  paragragli 
from  tiie  answer  filed  by  Mr.  Gabbet  for  the  Western  Kailway  of 
Alabama : 

"As  to  the  charge  that  no  throngh  bills  of  lading  are  being  issued  ' 
by  this  road  from  Opelika  to  New  Orleans,  La.,  we  would  say  that 
they  were  issued  on  tlie  game  basis  that  freights  between  Opelika 
and  otiier  places  were  charged,  until  a  promise  of  rebates  or  secret 
rates  to  some  of  the  mercliants  of  Opelika  by  certain  officers  or 
agents  of  competing  lines  from  Montgomery,  an  attempt  was  made 
to  divert  cotton  from  its  ordinary  and  proper  channel  to  New 
Orleans,  was  communicated  to  this  company. 

"  With  this  information  before  ns  we  ceased  to  give  any  through 
bills  over  the  Hnes  that  we  had  reason  to  believe  were  seeking  in 
an  improper  and  underhanded  way  to  draw  freight  from  the  roads 
over  which  it  would  naturally  pass.  We  did  this,  as  we  were 
informed,  in  strict  conformity  to  our  legal  right  to  become  respoQ- 
aible  only  beyond  our  own  line  for  such  roads  as  our  own  judgment 
and  experience  tanght  ns  to  be  safe,  and  to  our  interest. 

This  averment  is  not  supported  by  any  proof,  and,  if  trne,  it 
amounts  simply  to  this:  that  some  undisclosed  connection  of  the 
defendant  once  made  an  oSer  of  rebates  to  the  merchants  of  Opelika 
for  the  purpose  of  getting  the  business  away  from  what  defendant 
considered  its  "ordinary  and  proper  channel  to  New  Orleans." 
It  is  not  averred  that  tiie  lines  to  New  Orleans  will  not  now  unite 
in  making  the  nsnal  throngh  rates,  and  no  reason  whatever  is  stated 
why  through  rates  and  through  bills  of  lading  on  cotton  are  not 
given  over  the  Hue  which  forms  the  aforesaid  "  ordinary  aud  proper 
channel.*' 


^d  by  Google 


JHTEESTATE  OOMMEEOE  ACT — LOHG  AMD  8H0ET  HAUL.   653 

It  appeal  from  the  papers  in  the  case  and  from  statements  made 
on  the  ueariiig  that  tlirongh  rates  on  cotton  were  formerly  made 
from  Opelika  to  New  Orleans  on  the  same  basis  tliatother  freights 
were  treated,  as  aboredescribed  ;  also  that  after  Opelika  was  puii- 
islied  in  the  manner  stated  by  Mr.  (Jahbett  for  the  efforts  of  com- 
peting lines  to  divert  the  traffic,  through  rjtes  were  given  to  New 
Orleans  on  cotton   passing   directly  through   Opelika   front   other 

Eoints.  It  is  not  stated  that  the  alleged  "  rebates  or  secret  rates" 
avebeen  offered  since  the  passage  of  the  Act  to  Regulate  Com- 
merce, and  it  isnnderetood  tuat  the  tlirongh  rates  to  New  Orleans 
were  taken  away  from  Opehka  some  time  before  that  date,  and  have 
not  been  restored,  althongii  such  rebates  wonld  be  now  illegal. 
It  is  not  even  said  that  any  Opelika  dealer  ever  received  such  a 
rebate,  bnt  only  that  a  "promise"  of  that  nature  was  "com- 
mnnicated  to  this  company. 

Throngh  bills  of  lading  on  cotton  are  an  important  facility  in  its 
transportation  as  now  conducted ;  drafts  drawn  with  snch  bills  of 
lading  attached  are  a  basis  of  credit  tlironghont  the  South.  They 
ought  not,  therefore,  to  be  refused  without  some  substantial  reason,, 
and  none  is  sliown  here. 

From  all  the  evidence  before  the  commission  it  finds  the  facts 
to  be  that  tlirongli  rates  and  throngh  bills  of  lading  on  cotton  offered 
for  shipment  at  Opelika  for  New  Orleans  are  unjustly  and  unreason- 
ably refused  by  the  defendant.  The  Western  Kailway  of  Alabama^ 
while  given  by  said  road  on  other  commodities  and  at  other  points 
aimilarly  situated,  and  while  said  defendant's  connecting  lines 
making  the  route  to  New  Orleans  are  ready  and  willing  to  unite 
therein  ;  and  also  that  Opelika  is  thereby  subjected  to  undue  and 
unreasonable  prejudice  and  disadvantage,  in  violation  of  tlie  pro- 
Tiaions  of  the  third  section  of  the  Act  to  Regulate  Commerce. 

An  order  will  be  made  requiring  said  defendant  to  cease  and 
desist  from  such  violation  witiiin  ten  days  after  receiving  a  copy  of 
the  same. 

The  petition  in  other  respects  is  retained,  with  leave  to  complain- 
ants to  tile  amendments  or  an  amended  petition  in  aooordauce  with 
the  views  above  expressed. 


^d  by  Google 


(6d4  BOSTON  AND  AI.BANT  V.   BOSTOIT  AND  LOWELL  K  OO. 


BoBTON  Ain>  Albaitt  B.  Oo. 


BosTOH  AND  Lowell  B.  Co.  ei  aL 
Yebhoht  State  Gbakqb 

V. 

SosTON  AKD  Lowell  B.  Co.  ei  aL 

ijvterttaie  Comment  Committim,  BeptmAtr  SO,  1887.) 

All  companies  should  be  made  partie*  when  it  it  charged  that  one  makes 
'higher  rotes  for  short  hanlB  on  ita  own  lines  than  is  charged  for  long  haul* 
'On  ail  the  lines  tngether. 

A.  railrnad  cannot  complain  on  its  own  account  that  a  competitor  in  long- 
bau'i  traffic  viuUtea  the  4th  section  of  the  act  when  not  interested  in  the  high 

charges  on  stiort-haul  traffic,  not  averring  any  connection  between  such  hizb 
■charges  and  the  low  ones  made  on  the  competitive  traffic,  nor  can  it  make 
'Complaint,  in  oriier  to  find  out  whether  the  competing  line  is  justified  in  ita 
charges,  that  it  maj  do  the  same  if  they  are  sustained ;  but  where  a  violation 
of  the  act  amounts  to  a  public  grievance  one  may  complain  on  public 
grounds,  without  having  an;  personal  interest  affected,  except  as  one  oF  the 
public,  and  a  voluntarj  association  of  persons  engaged  in  an  industrial  pur- 
suit, and  therefore  interested  in  riulroad  ratee,  maj  oea  complainant  of  a  vi- 
olation. 

The  "seme  line,"  intended  by  the  fourth  section  of  the  act,  must  be  a  phys- 
ical line  and  not  a  mere  buaineBi  arrangement. 

The  joining  of  several  roads  in  charging  less  for  a  longer  haul,  and  the 
charf;ing  of  one  or  more  of  the  number  of  a  greater  rate  on  the  shorter  haul 
is  a  violation,  and  those  making  the  greater  charges  muBt  iustirj  it. 

Where  a  freight  line  operates  over  the  lines  of  a  railrnad,  the  latter  is  re- 
sponsible for  the  rates  made,  and  must  see  that  the;  conform  to  the  law. 

It  is  not  a  case  of  dissiniilar  circumatances  and  conditions  which  will 
support  greater  charges  on  shorter  than  on  longer  hauls,  where  there  is  pos- 
sible water  competition,  the  real  competition  for  the  long  haul  being  by 
railroad  ;  nor  wQere  a  railroad  competing  for  long-haul  traffic  is  long  and 
circuitous,  end  in  order  to  share  the  traffic  ia  obliged,  aa  against  more  direct 
and  competing  lines,  to  lower  its  rates. 

Samuel  Hoar  for  tlie  oomplaitiant  in  the  first  two  cases. 
George  F,  Edmunda  and  Haslet  <&  ^tddwrd  for  the  com- 
■plainatit  in  the  third  case. 

B.  F.  FijMd  for  the  Central  Vermont  R.  Oo. 
.A.  A.  Stroiii  for  other  defeDdants. 


^d  by  Google 


IMTEBSTATE  OOMMEROE  ACT — LONG  AND   SHOBT  HAUL.  655 


BBPOBT   AND   OPINION  OF   THE  OOHHIBSIOH. 

CoOLET,  Cliairman. — On  May  24,  1887,  the  Bo6ton  and  Albany 
K.  Co.  pr^ented  its  petition  stating  "  that  the  Boston  and  Lowell 
B.  Co.,  a  Maseacbuaette  corporation,  the  Concord  K.  Co.,  a  New 
Hampshire  corporntion,  the  Northern  R,  Co.,  a  New  HampBhire 
corporation,  the  Central  Vermont  R,  Co.,  aVermont  corporation, 
and  the  Grand  Trunk  R.  Co.,  eetablished  by  the  laws  of  Canada, 
have  issued  sehcdales  of  ioint  rates  under  the  name  of  the  Na- 
tional Despatch  Line,  ana  under  these  schedules  the  rates  from 
Boston  to  Detroit,  Michigan,  are  :  51-45-35-24-20-18  for  the  six 
classes  of  fmght,  respectively ;  and  to  Montreal,  Canada,  45— 40- 
80-23-20-18  for  the  six  claseee  of  freight,  respectively,  wliile  at 
the  same  time  the  Boston  and  Lowell,  Concord,  Northern,  and 
Central  Vermont  R.  Cos.,  a  part  of  the  roads  included  in  the  Na- 
tional Despatch  Line,  have  made  and  maintained  rates  from  Bos- 
ton to  St.  Albans,  Vermont,  a  station  on  the  Central  Vermont  R. 
ft  less  distance  from  Boston  than  eitlier  Detroit  or  Monti-eal,  in  the 
same  direction  over  tlie  same  line  as  follows:  60-50-40-27-24-17. 
for  the  six  classes  of  freight,  respectively. 

"The  National  Despatch  Line  comes  into  competition  with  the 
Boston  &  Albany  B.  Co.  and  its  connections  at  Detroit  and  other 
western  points. 

"  The  grievance  which  this  company  and  its  connections  ha'^e  ia 
that  the  National  Despatch  Line  makes  rates  to  Detroit  and  other 
points  in  the  West  less  than  the  Boston  &  Albany  R.  Co.  and 
its  connections  make  to  the  same  point;  while  at  the  same  time  a 
certain  combination  of  roads,  including  a  part  of  the  ronds  in  the 
National  Despatch  Line,  viz.,  the  IJoston  &  Lowell,  Concord, 
Northern,  and  Central  Vermont  R.  Cos.,  maintain  higher  rates  to 
St.  Albans  and  other  immediate  points — that  is,  higher  rates  for 
the  short  haul  than  for  the  long  haul  on  the  same  line  in  the  same 
direction  on  the  five  upper  classes  of  freight ;  whereas,  if  the  rates 
to  Detroit  and  other  Western  points  were  made  the  same,  no 
higher  and  no  lower  than  to  any  intermediate  point  on  the  same 
line  in  the  same  direction,  your  petitioner  would  have  no  reason 
to  complain." 

"  On  tlie  same  day  the  complainant  presented  another  petition 
representing  that  the  Boston  &  Lowell  R.  Co.,  a  Maeeachusetts 
corporation  ;  the  Concord  R.  Co.,  a  New  Hampshire  corporation  ; 
the  Northern  R.  Co.,  a  New  Hampshire  corporation  ;  the  Central 
Vermont  R  Co.,  a  Vermont  corporation  ;  and  the  Ogdensburgh 
&  Lake  Cbamplain  R.  Co.,  a  New  York  corporation,  have  made 
an  arrangement  by  which  the  Steamship  Co.  operated  by  the  Og- 
densbnrgh  &  Lake  Champlaiu  B,  Co.  has  issued  a  tarifE  from 


^dbvGoo^lc 


656   BOSTON  AND   ALBANY  V.    BOSTON   AND   LOWELL   B.   CO. 

Boston  to  lake  ports  in  the  United  States  at  a  lees  rate  than  is 
charged  at  tlie  same  time  from  Boston  to  Ogdenabnreh,  and  other 
points  on  the  same  line  at  a  shorter  distance  from  Boston  in  the 
Bauie  direction.    The  rates  are  as  follows : 

From  Boston  to — 
DT^'ri^h'  I   41-36-29-20-17-14  for  the  six  elasflea  of  freight, 
Pirt  Huron,  '' j        ^especti^elj. 

To— 
3filwauke,e, )    44-39-31-23-19-16  for  the  six  classes,  respectire- 
Cliicago,       f        ]j,  and  from  Boston  to — 
Ogdenabnrgh,  60-60-45-30-25-17  for  the  six  classes  of  freight, 
respectively. 

"This  line  via  Ogdensbnrgfa  oomee  into  competition  with  the 
Boeton  &  Albany  "R.  Co.,  ana  its  connections  at  Cleveland,  De- 
troit, Port  HnroD,  Milwaukee,  Chicago,  and  other  'Western 
points. 

"Tiie  grievance  which  the  Boston  &  Albany  R.  Oo.  and  its 
connections  have  is  that  the  line  via  Ogdenehn'rgli  makes  rates  to 
tlie  above  places  less  than  the  Boston  &  Albany  R.  Co.  and  itft 
connections  make  to  Uie  same  poiiits,  while  at  the  same  time  tlie 
above-named  roads,  viz.,  the  Boston  &  Lowell,  Concord,  Northern, 
Centra)  Vermont,  and  Ogdensbnrgli  &  Lake  Champlain  Kailroad 
companies  maintain  liigher  rates  to  Ogdensburgh  and  other  immedi- 
ate points — that  is,  higlier  rates  for  the  short  haul  thim  for  the  long 
hani  on  the  same  line  at  tlie  same  time  in  the  same  direction, 
whereas,  if  the  rates  to  Cleveland,  Detroit.  Port  Hnron,  Milwankee, 
and  Chicago  were  made  the  same,  no  higher  and  no  lower;  than  to 
intermediate  points  on  the  same  line  in  the  same  direction,  your 
petitioner  wonid  have  no  reason  to  complain." 

To  these  petitions  the  several  defendants  made  answer,  bnt  it  is- 
deemed  unnecessary  to  do  more  in  this  opinion  than  to  give  one  in 
each  case. 

The  answer  of  the  Boston  &  Lowell  R.  Oo.  to  the  petition 
lirst  above  recited  denies  that  the  defendants  "  have  issued  joint 
rates  under  the  name  of  the  National  Despatch  Co.  as  therein 
averred,  and  further  denies  that  the  line  of  railroads  or  the  rail- 
road which  eBtablished  and  maintains  any  joint  rates,  or  any  rates, 
for  the  carriage  of  freight  between  Boston  and  St.  Albans  and  in- 
termediate points,  is  the  same  line  or  railroad  corporation  as  the 
line  which  establishes  and  maintains  the  rates  of  freight  between 
Boston  and  Detroit  and  other  Western  points,  as  alleged  in  said 


^d  by  Google 


INTEBSTATE   OOMMEKCE   ACTV^LONG   AND   SHORT   HAUL.  657 

petition  ;  and  furtliev  denies  that  the  same  carrier  or  line  of  rail- 
roads 01'  this  defendant  charge  higher  rates  for  a  short  hani  than 
for  a  long  haul  over  the  saoie  line  in  tiie  same  direction  for  the 
like  kind  of  property  in  the  manner  set  out  in  said  petition  ;  and 
further  alleges  that  the  transportation  of  freight  between  the 
points  named  in  said  petition  has  not  been  and  is  not  under  eub- 
Btantially  similar  cit'cnmstauces  and  conditions  witliin  the  true  in- 
tent and  meaning  of  the  act  of  Congress. 

"And  this  de^ndantfurtltersays  that  the  Boston  &  Lowell  Rail< 
road,  the  Nashua  &  Lowell,  the  Concord,  the  Northern  and  the 
Central  Vennont  railroads  are  connecting  railroads  bo  far  as  track- 
age is  concerned,  from  Boston,  Mass.,  to  St.  Albans,  Vt.  These 
roads  are  not  managed  or  controlled  by  each  otJier,  except  that  the 
Nashna  &  Lowell  and  the  Northern  are  in  fact  operated  by  the 
Boston  &  Lowell;  nor  is  there  between  them  an  arrangement  for 
a  continnons  carriage  or  shipment  of  property  over  the  Bame,  al- 
though it  is  true  tiiat  they  sometimes  make  joint  tariffs  of  rates 
between  Boston  and  St.  Albans,  aforesaid,  and  interchange  cars. 
At  the  time  of  filing  the  pctitionere'  complaint  the  rate  txed  by 
said  joint  tariS  from  Boston  to  St.  Albans  was  and  is  as  stated  in 
said  petition. 

"  These  defendants  further  say  that  the  National  Despatch  Line, 
refeiTed  to  in  the  said  petition,  is  a  line  of  cars  running  from  Bos- 
ton, Mass.,  to  all  large  points  in  Canada  and  in  the  Western  States, 
vest  of  St.  Johns  in  Canada,  via  theOrand  Trunk  Line.  Thej 
consist  of  3750  freight  cars,  marked  '  National  Despatch  Line,' 
and  they  are  owned  as  follows  : 

"  Tiie  National  Car  Co.,  a  corporation  chartered  and  organized 
under  the  laws  of  Yermont,  owns  3000  of  said  cars.  The  Grand 
Trunk  R.  Co.,  of  Canada,  owns  700,  and  the  Chicago,  Pekin  & 
Southwestern  R.  owns  60.  The  roads  over  which  the  National 
Despatch  Line  sends  freight,  and  which  use  these  cars,  are  as  fol- 
lows: 

"  Boston  &  Lowell  [and  others  are  enumerated,  inclading 
some  whose  lines  extend  beyond  the  Mississippi]. 

"  The  National  Despatch  Line  have  their  principal  office  in  Bos- 
ton, Mass.  They  solicit  freight  at  Boston  and  other  places  in  New 
England  for  transportation  to  all  prominent  points  in  Canada  and 
the  Western  States  west  of  St.  Johns.  They  liave  agencies  in 
Boston  and  other  Eastern  pointa,  and  in  Chicago  and  other  Western 
points.  They  do  not  receive  or  solicit  freight  at  Boston  or  other 
New  England  points,  the  destination  of  which  is  south  of  St. 
Johns,  for  west-oonnd  freight.  They  issue  their  own  bills  of  lad- 
ing, and  they  also  issue  and  publish  their  tariff  for  transportation 
from  New  £ngland  points  in  the  Western  States  and  Caitada  west 


^d  by  Google 


(!.')?:  BOSTON   AND   ALBAHT  «.   BOSTOS   AND  LOWELL   E.    00. 

of  St.  Johns.  Tliev  do  not  issne  bills  of  lading  for  west-bound 
freight  from  New  England  points  to  points  sonih  of  St.  Johna, 
nor  do  tliey  make  a  turifE  nor  profess  to  be  carriers  between  those 
points  in  reeiwct  to  west- bound  f reiglit  destined  south  of  St,  Johns. 
St.  Albans,  V  t.,  is  south  of  St.  Jolins,  and  is  not  embraced  in  the 
tariff  made  by  the  National  Despatch  Line  for  west-bonnd  freighL 
The  rates  made  to  points  west  of  St.  Johns,  where  there  is  compe- 
tition with  com plai mint's  line,  are  made  under  this  tariff  by  the 
National  Despatcli  Line. 

"  And  this  defendant  denies  that  the  joint  tariff  aforesaid  con- 
stitutes an  arrangement  for  a  continuous  carriage  wittiin  the  mean- 
ing of  the  first  section  of  the  Interstate  Commerce  Law  ;  but  if  it 
does,  then  it  alieges  that  the  joint  tariff  from  Boston  to  St.  Albana 
makes  n  wliolly  different  line  from  the  one  made  by  the  joint  tariff 
of  the  National  Despatch  Line,  within  the  meaning  of  the  fourth 
section  of  said  law. 

"And  this  defendant  fnrther  says  that  the  rates  from  Boston 
and  intermediate  points  to  St.  Albans  are  reasonable ;  that  nobody 
along  tJie  line  is  dissatiaiied  witli  the  rates  made ;  that  the  Boston 
&  Albany  line  is  not  a  competitor  for  traffic  for  west-bound 
freight  from  Boston  or  intermediate  points  to  St.  Albans,  and  is 
in  no  way  interested  in  the  rates  that  are  made  tliereto.  It  fur- 
ther Bays  that  the  Central  Vermont  road  runs  tlirongh  a  sparsely 
settled  conntry ;  that  the  local  traffic  thereon  is  small,  and  that  it 
was  constructed  at  a  great  expense  throngh  an  uneven  country 
with  high  grades  ;  that  the  ixrad  has  been  foreclosed  and  reorgan- 
ized, and  the  original  capital  put  into  the  construction  of  the  same 
has  been  lost ;  that  if  said  road  was  compelled  to  depend  on  local 
traffic,  it  conld  not  pav  its  expenses  and  interest  on  its  bonded 
debt,  to  say  nothing  of  the  stocks  of  the  road  as  it  has  been  reor- 
'  ganized.  And  tiiis  defendant  further  says  that  the  additional  ex- 
pense of  doing  thi-ongh  traiEc  as  compared  with  local  traffic  is 
small  in  degree  ;  that  its  road  is  the  same  whether  the  traffic  is  lo- 
cal and  small  or  large  by  reason  of  throngh  business;  that  the 
profit  which  it  makes  ont  of  the  through  business  is  quite  as  im- 
portant to  it  as  the  profit  on  the  local  business,  by  reason  of  the 
Tolame  of  the  tlirongh  traffic  as  compai'ed  with  the  local  traffic ; 
that  the  volume  of  business  from  Boston  to  St,  Albnns  is  not  one- 
twentieth  part  of  what  it  is  to  points  beyond  there,  westward ; 
that  it  has  been  to  very  lai^  exi>ense  for  terminal  facilities,  among 
other  tilings,  to  accommodate  such  through  traffic,  and  this  expeuse 
amonnts  to  more  than  $3,000,000. 

"And  these  defendants  fnrther  say  tliat  the  Central  Vermont 
road  extends  northerly  from  St.  Allans  to  the  State  line,  a  distance 
of  about  ten  miles ;  that  it  there  connects  with  the  Montreal  and 


^dbyGooglc 


INTERSTATE  COMMEECE  ACT — LONG  AND  8H0ET  HAUL,  669 

Teriiiont  Junction  Bailroad,  a  Canada  corporation,  vhicli  extends 
abont  twenty-two  iiiileB  nortlierlyto  St.  Johns,  in  Canada,  where  it 
connects  witli  tlie  Grand  Trunk  Railroad,  wliich  exteiide  throngb 
Canada  to  Windsor,  opposite  Detroit. 

"It  is  over  this  line  tJiat  the  National  Despatch  cars  principal); 
rnn.  And  tliis  defendant  further  says  tliat  tlie  rate  made  by  tlie 
National  Despatch  Line  from  Boston  to  Montreal  is,  and  was  at  tlie 
time  of  tlie  filing  of  tlie  petitioner's  complaint,  the  same  as  stated 
in  said  complaint,  and  for  the  following  reasons :  There  are  many 
competitors  at  Boston  for  traffic  to  Montreal ;  there  are  none  for 
traffic  to  St,  Albans.  Boston  traffic  is  taken  by  ocean  steamers  to 
Halifiix,  Nova  Scotia,  and  St,  Jolins,  New  Brunswick,  and  thence 
by  Canadian  railways  to  Munti'eal.'  It  is  also  taken  via  Passump- 
eic  &  SomlieaBteni  Railway  to  Montreal,  the  latter  railroad  being 
a  foreign  corporation.  Traffic  is  a!so  taken  from  New  York  to 
Montreal  by  tlie  Delaware  &  Hndeon  River  Canal  Co., 
which  extends  frotn  New  York  City  to  Ronse's  Point,,  witli  in  fifty 
miles  of  Montreal,  and  is  a  i-ailroad  entirely  within  the  State  of 
New  York,  Halifax  and  St.  Johns,  N.  B.,  are  foreign  cities,  and 
together  with  New  York  are  competitors  with  Boston  for  the  sale 
■of  goods  to  the  merchants  of  Honlreal.  Unieee  the  rate  affreight 
is  as  low  from  Boston  to  Montreal  as  from  the  aforesaid  cities  to 
Montreal,  the  tratlic  will  not  ^o  over  the  roads  used  as  the  National 
Despatch  Line.  The  Grand  Trunk  via  Portland  is  the  strongest 
competitor  for  traffic  from  Boston  to  Montreal,  and  is  a  foreign 
.corporation.  The  National  Despatch  Line  make  the  rates  they  do 
from  Boston  to  Montreal  from  necessity  and  by  reason  of  competi- 
tion, and  for  no  other  reason. 

"  And  this  defendant  further  saye  that  the  rate  made  by  the 
National  Despatch  Line  from  Boston  to  Detroit  te  and  was  as 
stated  in  said  petition,  at  the  time  of  filing  thereof.  There  are 
many  competing  lines  for  Boston  traffic  to  the  West,  and  especially 
to  Detroit.  The  Baltimore  &  Oiiio  takes  trafSc  at  Boston  by 
ocean  steamei-s  to  Philadelphia  and  Baltimore,  and  thence  over 
their  line  to  all  large  points  in  the  West.  The  Boston  &  Albany 
Line  via  the  New  York  Central  and  Michigan  Central  railroads 
and  steamships  from  Buffalo  takes  freight  westward  to  all  lake 
points,  and  more  especially  Detroit.  The  Grand  Tnink  Line  via 
Portland  is  still  another  line  in  competition  for  west-bound  traffic 
to  Detroit  and  all  other  large  points  in  the  West,  The  Gi-and 
Trunk  R.  Co.  isaforeigncorporation,  and  their  line  runs  princip;  by 
through  Canada  to  Windsor,  Ontario,  opposite  Detroit,  and  Point 
Edward,  Ontario,  opposite  Port  Huron,  Michigan.  The  defend- 
ant's line  from  Boston  to  St.  Albans,  in  connection  with  the 
Ogdensborgh  &  Lake  Ghamplaiu  Railroad  and  the  link  of  boats 


^d  by  Google 


660  INTEESTATB  COMMEECE  ACT — LONO  AKD   SHORT  HAUL. 

OD  the  Great  Lakes,  called  the  Central  Vermont  Line  of  Steamers^ 
constitute  stiil  anotlicr  line  wliicli  coinee  in  competition  with  the 
National  Despatcli  Line  at  Detroit  and  otlier  Western  points.  The 
Canadian  Pacific,  another  foreign  corporation,  is  in  competition  for 
this  Siime  tratiic.  Many  othei-s  might  be  named,  and  especially  the 
New  York  &  New  England  and  ita  connections,  also  the  Fitch- 
bnrgit  &  Iloosac  Tunnel  Line. 

''And  tills  defendant  further  says  that  these  competing  linefr 
largely  dictate  the  rates  from  Boston  to  Detroit  and  otlier  compet- 
ing points  in  the  West;  that  the  defendant's  lines  must  make  as 
low  rates  to  these  points  of  competition  as  the  other  lines,  or  go 
ont  of  the  business ;  that  the  through  bnsiiiesB  to  competing  point» 
IB  important  to  this  defendant  and  the  other  connecting  roads,  and 
is  a  source  of  largo  prolits  to  this  defendant  And  tliis  defendant 
further  says  that  the  cireumetances  and  conditions  under  which 
freielit  trafiic  is  taken  and  transported  from  Boston  to  St.  Albans- 
is  wholly  dissimilar  to  what  it  is  in  respect  to  freight  traffic  which 
they  take  and  transport  west  of  there  to  pointsof  competition,  and 
more  eepeciully  Montreal  and  Detroit;  that  the  rates  made  from  Bos- 
ton to  Montreal  and  Detroit,  respectively,  are  made  from  necessity 
and  for  no  other  reason;  that  the  petitioner  is  in  no  wise  interested 
in  the  rates  from  Boston  to  St.  Albans  ;  that  its  motive  in  filing  its- 
petition  is  to  break  down  one  of'  its  principal  competitors  for 
through  business  from  Boston  to  Detroit  and  other  points  in  the- 
West,  and  from  no  other  motive.  And  this  defenaant  farther 
gays  that  it  has  acted  in  good  faith  in  the  premises;  that  it  has- 
given  the  best  constrnction  it  could  to  the  Interstate  Commerce 
Law,  and  under  the  advice  of  counsel,  and  if  it  has  erred  it  will  ask 
leave  to  file  its  petition  to  be  relieved  from  the  operation  of  the 
foui'th  section  of  said  act." 

The  joint  and  several  answer  of  the  Central  Vermont  R.  Co. 
and  the  Ogdensburg  &  Lake  Champlain  R.  Co.  to  the  petition 
secondly  above  set  forth  says  that  *'  the  Boston  &  Lowell,  the 
Nashua  &  Lowell,  the  Concord,  the  Northern,  the  Central  Ver- 
mont, and  the  Ogdenshnrgli  &  Lake  Champlain  Railroads,  form 
a  connecting  line  of  railroads,  so  far  as  trackage  is  concerned,  from 
BoBton  to  Oi;di'n6burgh,  N.  Y.  These  roads  are  rot  iiinnaged  or 
controlled  by  each  other  except  that  the  Nashua  &  Lowell  and  the 
Northern  are  under  lease  to  the  Boston  &  Lowell,  and  the 
Oirdensbui^h  &  Lake  Champlain  is  under  lease  to  the  Central  Ver- 
mont Riiilroad ;  nor  is  there  between  them  an  arrangement  for  a 
continuous  carriage  or  shipment,  unless  it  may  be  implied  fram 
the  making  of  joint  tariffs  and  the  interchange  of  cars.  At  the 
time  coinplained  of  in  the  petition  there  was,  and  still  is,  a  joint 
tnt'iS  for  west-bound  traffic  from  Boston  to  OgdensburgU  over  the 
aforciaid  roads,  at  the  rates  stated  in  the  petition. 

"  Fram  Ogdensburgh  there  Ib  a  hne  of  eight  steamera  which 


^dbyGoOglc 


BOSTON  AND   ALBANY   V.  BOSTON   AND   LOWELL   R.    CO.   661 

run  between  tliere  and  Chicago  and  touch  at  variouB  points  on  the 
Great  L:ikes,  and  more  espuciallj  at  Cleveland,  Detroit,  Port 
Huron,  Milwaukee,  and  Cliicu<ro.  This  line  of  steamers  is  con- 
trolled by  the  CentrHl  Vermont  E.  Co.,  and  they  have  a  joint  tariff 
with  the  roada  aforesaid,  entirely  different  and  independent  from 
the  one  between  tlie  roads  themselves,  as  before  stated,  from  Bos- 
ton to  Ogdenabiirgli. 

"This  line  is  called  the  Central  Vermont  Line  of  Steamers. 
Thej  take  no  traffic  for  points  lietween  Boston  and  Ogdensbnrgh, 
but  only  for  points  west  of  Ogdensbnrgh  for  westward-bonnd 
freieht.  Tliejmake  the  rates  from  Boston  to  lake  points  as  stated 
in  the  petition. 

"The  defendants  insist  that  the  aforesaid  joint  tariffs  do  not 
<!onBtittite  an  arrangement  for  a  continnons  carriage  or  shipment 
vitliin  the  meaning  of  the  fii'st  section  of  the  Interetate  Com- 
mei-ce  Law;  but  if  they  do,  then  they  do  not  constitute  the  same 
lines  within  the  meaning  of  the  foni'th  section  of  said  law. 

"  And  these  defendants  fnrtlier  say  tliat  the  rates  from  Boston 
to  Ogdensbnrgh  referred  to  in  said  petition  are  entirely  reaeonable ; 
that  shippers  do  not  complain,  nor  do  the  public  at  Ogdensbnrgh. 
There  ie  no  competition  with  the  defendants'  line  at  Ogdens- 
■  bni'gh  for  traffic  from  Boston  to  Ogdensbnrgh,  The  Ogdensbnrgh 
and  Lake  Champlain  and  Central  Vermont  roads  embrace  more 
than  half  the  distance  from  Ogdenabuigb  to  Boston.  They 
run  throngb  a  sparsely  settled  conntry  with  high  grades,  and  am 
operated  at  ntiDsniiHy  large  expense,  especially  in  the  winter,  by 
reason  of  heavy  drifts  of  snow  and  excessive  frosts. 

*'  They  have  both  been  foreclosed  and  reorganized,  and  the  orig- 
inal capital  pnt  into  the  construction  has  been*  lost;  and  if  they 
-were  compelled  to  depend  upon  local  tniffic  alone,  they  could  not 
pay  their  expenses  ana  intei'eston  their  bonded  debt,  to  say  nothing 
•of  the  various  stocks  of  the  roads  ae  now  reoi'ganized.  These  I'oads 
have  been  brought  up  to  a  high  state  of  efficiency  for  the  pnipose 
of  doing  a  through  business  from  the  seaboard  to  the  West,  and  if 
the  rates  from  Boston  to  points  on  ttie  Great  Lakes  made  by  the 
Oentral  Vermont  line  of  steamers  aforesaid  were  raised  to  the 
«ame  rates  as  the  tariff  from  Boston  to  Ogdensbnrgh,  no  ti'athc 
woald  go  by  this  line  to  points  on  the  Great  Lakes  oy  reason  of 
competition  with  other  lines,  and  more  especially  the  Boston  & 
Albany  Line  hereinafter  refen-ed  to. 

"  On  the  other  hand,  if  the  rates  figm  Boston  to  Ogdensbnrgh 
were  reduced  to  the  same  rates  as  from  Boston  to  points  on  tiie 
Great  Lakes,  it  would  seriously  cripple  these  defendants'  roads  and 
would  weaken  tliom  as  competitors  for  through  business  by  tlie 
Boston  and  Albany  Line  without  affording  any  relief  to  Ogdens- 
bnrgh, but  it  would  probably  result  in  a  large  mcrease  in  the  rates 


^d  by  Google 


Q62  l:^TEKSTATK   COMMEBCE  ACT — LONG  AND   BHOBT  HAUL. 

from  Boston  to  Ogdenebm^h  in  order  to  muDtaio  tlie  roade,  if  the- 
tliroiigh  bnsiness  ie  given  np. 

"  And  these  defendants  further  Bay  that  there  are  many  compet- 
ing lines  for  Boston  tmffic  to  the  West — [Enninerating  them] ; 
that  these  varioue  lines  compete  with  the  defendant's  line  at  the 
variotis  lake  points  referred  to  in  the  petitioner's  complaint  and 
dictate  the  rates  that  shall  be  charged  thereto;  tliiit  the  defendant's 
line  ninst  make  as  low  rates  to  these  p*jints  of  competition  as  tlie 
other  lines,  or  go  ont  of  tlie  business;  tliat  this  tliroQgh  business 
to  competing  points  is  quite  as  important  to  these  defendants 
as  their  local  traffic;  th»t  the  amount  of  traffic  from  Boston  to 
Ogdensbiirgh  and  intermediate  points  is  not  one-twentieth  part  of 
what  it  is  to  points  west  of  Oilcngburgh  ;  that  they  make  money 
on  their  through  bnsiness,  and  without  it  they  conld  uot  secure 
any  adegnate  i-etnni  for  the  capital  invested  in  defendants'  roads. 

"And  these  defendants  further  say  that  the  circumstances  and 
conditions  undnr  which  they  take  tniffie  from  Boston  to  Ogdene- 
burgh  is  wholly  dissimilar  from  what  it  is  in  respect  to  traffic 
which  they  take  west  of  there  to  points  of  competition  on  the  ' 
Great  Lakes;  that  tlie  cost  of  service  is  relatively  small  for  the 
water  carriage  west  of  Ogdcnaburgh  as  compared  with  the  railroad 
carriage  iKstween  Boston  and  Odensbnrgii,  bnt  the  rates  made  from 
Boston  to  lake  points  on  tliis  line  arc  made  from  necessity  and  for 
no  other  reason  ;  that  the  petitioners  ai-e  in  no  wise  interested  ia 
the  rates  from  Boston  to  Odensburgli ;  tiiat  their  motive  in  filing 
their  petition  is  to  breik  down  one  of  their  priucipal  competitors 
for  through  business  from  Boston  to  lake  points  aforesaid. 

"  And  these  defendants  further  say  that  they  have  acted  in  good 
faith  in  the  premises;  that  they  have  given  as  good  construction 
as  they  conld  to  the  Interetate  Commerce  Law,  and  tinder  the 
advice  of  counsel,  and  if  they  have  erred  they  will  ask  leave  to  file 
their  petition  to  be  relieved  from  the  operation  of  the  fonrth  sec- 
tion of  said  act." 

Wiiile  tiie  cases  were  pending  the  Vermont  State  Grange  of  the 
Patrons  of  Husbandry,  representing  itself  nB"an  association  of 
farmei-s  and  business  men,  organized  and  located  within  the  State 
of  Vermont,"  presented  what  is  called  in  the  proceedings  an  inter- 
vening petition,  but  which  for  all  pi-aetical  purposes  is  an  original 
complaint,  which,  after  i-ecitiiig  tlie  pendency  of  the  proceedings, 
goes  on  to  allege  "that  the  tariff  rates  and  charges  made  by  the 
defendants  for  ihe  transportation  of  property  from  Boston,  in  llie 
State  of  Massachusetts,  and  points  near  said  lioston,  to  St.  Albans, 
Burlington,  Middlebnry,  and  other  places  in  the  said  State  of 
Vermont,  and  from  said  places  in  Vermont  to  Boston  and  places 
near  thereto,  are  holier  than  the  charges  made  by  said  defendants 
and  said  National  Despatch  Line  from  said  Boston  to  Montreal,  in 
the  province  of  Quebec,  Detroit,  in  the  State  of  Michigan,  and 


^d  by  Google 


B08T0N   AND   ALBANY  V.    BOSTON   AND   LOWELL  R.   CO.    668 

other  points  beyond  and  northerly  and  westerly  of  the  said  Btate 
of  Yermoiit,  atid  from  eaid  northern  and  western  points  to  said 
Boston"  ill  (son t raven t ion  of  tlie  statute,  and  aieo  "  t)iat  said  charges 
for  transportation  of  property  from  Boston  aforesaid  to  aaid  points 
in  Vermont,  and  from  said  Vermont  poiTits  to  Boston  and  other 
places  ill  tlie  vicinity  thereof,  so  made  by  the  defendants  are  ex- 
orbitant in  fact,  and  are  not  reasonable  or  just." 

The  Siime  defences  were  relied  upon  to  this  as  to  the  other  peti- 
tions, and  the  cases  were  all  heard  together  at  Rutland,  Vermont, 
on  the  first  day  of  September  and  following  days. 

Before  pi-oceeding  witii  the  evidence  the  Grand  Trunk  K. 
Co.  moved  that  the  complaints  as  to  it  be  dismissed,  for  the 
reason  chut  the  charges  supposed  to  be  in  violation  of  the  statute 
were  not  made  or  shared  in  by  it ;  its  participation,  if  any,  being 
only  in  tiie  low  charges  ou  the  long  hauls,  which  in  themselves 
were  perfectly  legal  and  were  not  averred  to  be  otherwise.  The 
commission,  however,  was  of  opinion,  and  so  held,  that  the  interest 
of  tliiit  company  was  such,  and  the  liability  of  the  low  rates  oa 
long-hanl  ti'affic  to  be  affected  by  changes  made  in  the  higher  rates 
on  short-liaul  traffic  was  so  great  that  in  case  it  had  not  been  made 
a  party,  and  should  now  come  in  and  ask  to  be  made  such  in  order 
that  it  might  present  evidence  and  be  lieard  by  counsel,  it  would 
be  proper  to  oi-der  accordingly.  This  being  the  case,  it  was  equally 
proper  for  complainants  to  join  it  as  a  party  respondent  in  the  first 
instance. 

The  right  of  the  petitioner  in  the  first  complaints  to  bring  the 
mattei-B  involved  before  tlie  commisaion  for  its  action  is  challenged 
by  the  defendants,  who  inquira  what  legitimate  interest  the  Boston 
and  Albiiny  B.  Co.  can  have  in  the  rates  made  by  the  de- 
fendant companies  and  which  are  supposed  to  be  in  violation  of 
law.  Those  rateg  are  local  rates;  the  BoEton  and  Albany  does  not 
pay  or  participate  in  paying  tiiein;  tliey  are  not  even  competitive 
rates  to  those  which  are  imposed  on  its  road,  and  if  they  were  the 
fact  that  they  were  excessive  wonld  tend  to  its  advantage.  The 
petitions  do  not  show  that  those  who  pa}'  them  regard  them  as  ex^ 
cessive  or  unjust,  nor  is  it  averred  that  they  are  so  in  fact.  It  is 
consistent  with  everything  that  appears  in  the  first  two  complaints 
that  these  rates  are  fair  and  just ;  that  they  are  even  necessary  ag 
defendants  aver  they  are;  and  that  the  parties  who  pay  them  do 
so  without  complaint  and  willingly.  "Why  then  should  this  peti- 
tioner  complain? 

The  petitions  answer  this  inqniry  by  saying  that  "  the  grievance 
which  tins  company  and  its  connections  have  is  that  the  National 
Despatch  Line  ninkea  rates  to  Detroit  and  other  points  in  the  West 
less  than  the  Boston  and  Albany  R,  Co,  and  its  coniiec- 
tions  make  to  the  same  point,"  while  at  the  same  time  making 
higher  rates  to  intervening  points.     But  what  the  higher  rates  to 


^dbyGoO^lc 


6o4  iNT;:iiSTATE  commkkoe  act — long  and  short  hadl. 

the  intervening  points  have  to  dowith'the  complainant's  *' griev- 
ance" tlie  petition  fails  to  inform  bb.  No  connection  between  the 
bigh  rates  and  tlie  low  ie  shown  or  averred.  It  is  not  said  that  the 
one  set  are  made  high  in  oi-der  tliat  the  otlier  may  be  made  low,  or 
that  the  h)Tig-)iuul  trutiicis  tiiken  at  tlie  expense  of  the  ehort-hanl 
traffic.  As  tlie  case  stands  npon  the  fii'st  two  complaints  the  sole 
grievance  of  tlie  petitioner  is  that  the  defendant  roads  accept  traffic 
from  Boston  to  Western  points  at  lower  rates  than  are  made  by 
petitioner  and  its  coniiectionB;  and  the  legitimate  inference  mnst 
be  that  the  purpose  of  liie  proceedings  is  to  compel  the  piittiiifc  "P 
of  tiiose  rates.  But  in  that  pnrj>oso  the  petitioner  can  certainly 
expect  no  aid  from  this  commission.  The  defendant  companies 
have  the  legal  right  to  make  tlie  low  through  rates,  and  tlieir  com- 
petitoi's  cannot  restrain  them. 

On  the  argument  it  was  said  on  behalf  of  the  Boston  and  Albany 
company  ihat  the  purpose  of  the  proceeding  was  to  obtain  a  con- 
Bfrnction  of  the  act.  The  |>etitioner  desires  to  know  whether 
the  Central  Yerinont  K.  Co.  is  jnstified  in  making  with  its 
connections  higher  rates  from  Boston  to  St.  Albans  and  inter- 
vening points  tlian  it  makes  lo  Montreal  arid  more  distant  points.^ 
It  desires  to  have  an  authoritative  decision  on  that  subject,  in  order* 
that,  if  such  higher  rates  are  sustained,  it  may  proceed  in  like  man- 
ner to«m)>OBe  m  respect  to  its  traffic  higlier  rates  upon  shorter  than 
upon  longer  hauls.  And  as  it  is  well  nnderstood  that  this  com- 
mission did  not  give  opinions  upon  abstract  questions,  or  nndertake 
to  construe  tlio  law  as  a  guide  to  parties  in  their  own  business  when 
no  controversy  was  pending  before  it,  tiiese  proceedings  were 
begun  in  order  to  present  the  necesEsry  contention. 

One  obvious  remark  upon  this  is,  that  it  is  not  warranted  by  the 
complaint,  which  nndertakcs  to  advance  and  rely  upon  a  "griev- 
ance." Another,  equally  obvions,  is  that  the  desire  to  have  safe  enid- 
ance  in  one's  own  bnsiness  is  not  a  legitimate  ground  for  overliaol- 
itigthe  businessof  another  with  wliich  the  party  has  noother  concern. 
Moreover  a  decision  upholding  the  lawfulness  of  the  greater  cliarges 
made  for  the  shorter  hauls  by  tlieCentral  VeiTiiont  and  its  connections, 
could  not,  in  the  nature  of  things,  constitute  a  rule  for  the  peti- 
tioner in  deciding  whether  to  impose  areater  charges  for  sliorter 
hauls  on  its  line.  Our  reasons  for  this  were  fully  given  In  the 
Matter  of  the  Louisville  &  Nashville  E.  Co.  We  there  pointed 
out  that  the  rigitt  to  make  such-  charges  under  the  law  was  excep- 
tional; that  it  depended  in  every  case  npon  the  peculiar  cii-cnm- 
stimccs  and  conditions ;  and  while  we  did  not  undertake  Co  indicate 
all  the  reasons  that  might  justly  or  plansibly  he  advaticed  in 
support  of  an  exception,  enough  was  stated  to  make  clear  as  we 
thought  how  impossible  it  is  to  lay  down  definite  rules  by  which 
the  cases  as  they  arise  may  be  readily  determined.  It  is  upon  its 
own  cireuniEtances  and  conditions  that  each  case  must  be  judged. 


i,z.dbvGoOgle 


BOSTON   AN©  ALBANY  V.   BOSTON   AND   LOWELL   K.    CO.     666 

In  the  cases  before  ns  there  iB  neither  allegation  nor  proof  that 
the  circuniEtaiioeB  and  conditions  of  the  local  traffic  on  the  Bostoa 
&  Albany  and  its  coiiiiectiona  are  like  or  subetantiallv  like  the 
circumEtanccs  and  conditions  of  the  tocu!  traffic  of  tlie  Central 
Termont  and  its  connections  between  Boston  and  St,  A!l)ans,  If 
therefo  e  it  were  to  be  decided  that  the  greater  eliarges  on  the 
shorter  haaU  wliich  are  here  complained  of  ure  inst,  reasonable  and 
legal,  it  wonld  not  follow  that  the  Boston  &  Alhajij  and  its  con- 
nections conld  make  the  like  charges.  The  reason  is  plain :  The 
decision  would  be  confined  to  the  facts  of  the  very  case  in  judg- 
ment; and  how  it  wonld  apply  to  the  facts  of  any  other  case  not 
exactly  like  it,  wonld  be  matter  of  inference  and  argnmeni  only. 
The  greater  the  difference  in  circunistances  and  condition  the  less 
would  be  the  likeliiiood  that  the  decision  could  be  accepted  as  a 
precedent.  And  perhaps  it  may  be  safely  said  that  any  well-in 
formed  person  who  lias  even  a  general  knowledge  of  that  section 
of  the  country  knows  that  the  circn instances  and  conditiors  of  local 
traffic  on  the  Central  Vermont  mnst  he  j^reatly  different  to  what 
those  are  of  the  local  traffic  on  the  Boston  &  Albany.  The  latter 
mns  tlirongh  the  more  densely  populated  country;  it  has  more 
oonsiderahle  towns  and  large  manufactories  upon  it,  and  for  these 
reasons  has  a  vastly  greater  volume  of  business  within  its  reach. 
It  also  takes  the  better  direction  for  a  heavy  long-haul  traffic. 

In  what  has  been  said  we  are  not  to  be  understood  as  holding 
that  a  complainant  must  necessarily  have  a  pecuniary  interest  in 
-order  to  entitle  him  to  be  heard.  Tiiere  are  no  doubt  many  cases 
in  which  an  individual  having  no  interest  except  to  see  that  the 
law  IS  enforced  for  the  benefit  of  society,  may  complain  in  his  own 
name  but  in  the  public  interest.  In  these  cases  the  petitioner  does 
not  complain  in  the  public  interest,  but  in  its  own,  and  the  griev- 
ance of  low  long-haul  rates,  of  which  it  complains,  is  not  a  public 
grievance. 

The  Act  to  Regulate  Commerce,  however,  expressly  provides 
that  "No  complaint  shall  at  anv  time  be  dismissed  because  of  the 
absence  of  direct  damage  to  the  complainant."  Under  this  pro- 
vision when  an  alleged  infraction  of  the  law  of  such  a  character  as 
to  constitute  a  public  grievance  of  considerable  general  importance 
is  brought  to  the  attention  of  the  commission,  by  a  responsible 
party  in  a  duly  authenticated  form,  it  may  be  the  duty  of  the 
commission  to  enter  npon  its  investigation,  and  if  the  charge  is 
substantiated,  to  apply  appropriate  relief.  We  are  relieved  from 
any  necessity  of  determining  what  would  be  the  proper  course  to 
pui'sne  in  such  a  case  by  the  fact  that  the  question  of  the  violation 
of  law  is  directly  presented  in  the  petition  tiled  by  the  Vermont 
State  Grange  of  the  Patrons  of  Husbandry.  We  are  not  informed 
whether  that  body  is  incorporated,  nor  is  it  important.  It  was 
conceded  on  the  argument  to  be  an  association  formed  for  proper 


^d  by  Google 


666  INTEESTATK  COMMERCE  ACT — LONG   AND   SHOBT   HAUL.  ' 

pnrposes  by  respectable  people  of  the  State,  and  presnmably  those 
persoiiB  are  interested,  or  are  liable  to  be,  in  the  chnrges  complained 
of.  They  find  their  grievance  not  in  the  low  rates  whicli  the  la* 
does  not  undertake  to  i-estrict,  but  in  the  iiigh  rates  which,  if  not 

f'uatified  by  a  proper  showing,  stand  condemned,  and  aa  these  are 
ikely  to  benr  with  peculiar  weight  upon  those  who  follow  the 
calling  nf  husbandmen,  it  is  very  proper  that  they  as  an  association, 
if  they  believe  the  rates  wrong  and  op]>reEBive,  should  raise  the 
question.  Upon  the  petition  of  the  State  Grange,  therefore,  we 
proceed  to  examination  of  the  merits  of  the  controversy. 

I.  It  is  contended  on  the  part  of  the  defendants  that  they  do  not 
nor  dues  eitlier  of  them  violate  the  fourth  section  of  the  Act  to 
Kegulate   Commerce,  becanse   the  shorter   hauls  for  which   the 

freater  charges  are  miide  are  not  over  the  same'  lines  aa  the  longer 
auls  for  which  the  charges  are  less. 
This  contention  is  based  on  tiie  phraseology  of  the  first  and 
fourth  sections  of  the  act.  By  the  fourth  section  it  is  made  unlaw- 
ful for  "any  common  carrier  subject  to  the  provisions  of  this  act,'* 
to  charge  more,  etc.,  "for  a  siiorter  than  for  a  longer  distance  over 
the  same  line  in  the  same  direction,  the  shorter  being  included 
within  the  longer  distance."  Tiietiret  section  prescribes  who  shall 
be  subject  to  tlie  provisions  of  the  act.  Tiiey  are,  "any  common 
carrier  or  carriers  engaged  in  the  transportation  of  passengers  or 
property  wholly  by  railroad,  or  partly  by  railroad  and  partly  by 
water  when  both  are  used  nnder  a  common  control,  manngement, 
or  arrangement  for  a  continuous  carri.ige  or  shipment,"  etc.  The 
party  tlien,it  is  claimed,  who  can  be  liable  nnder  the  fonrth  section 
must,  it  is  said,  either  he  a  single  carrier  operating  by  itself  a  line 
upon  wliicli  tiie  charges  are  made,  or  it  must  be  earners  operating- 
a  line  "  under  a  common  control,  management,  or  arrangement  for 
a  continuous  carri:ige,"  et'c.  Tlie  defendant  corporations  have  each 
their  separate  board  of  directors;  they  are  not  under  a  common 
control  or  management ;  they  have  no  common  arrangement  for  a 
continuous  carriage.  Their  tracks  connect  and  a  carriage  may  be 
made  continuous  by  the  delivery  of  property  from  one  to  another 
till  it  reaches  its  destination,  but  the  delivery  is  a  common  law  duty 
irrespective  of  common  arr.mgement.  The  making  of  a  joint  tariff 
is  not,  it  is  argued,  such  a  common  arrangement  as  the  act  con- 
templates ;  ic  is  only  an  agreement  as  to  what  each  will  accept  as  its 
share  of  the  charge  for  a  haul  over  the  roads  or  lines  of  them  all. 
The  long  and  short  hauls,  then,  are  not  on  the  same  line  unless 
botli  are  on  the  line  of  the  same  carrier,  which  is  not  the  case  here. 
But  if  two  or  more  roads  could  he  regarded  as  one  "line"  within 
the  meaning  of  the  act,  the  charges  complained  of  here  are  not  for 
hauls  on  the  same  line;  the  line  from  Boston  to  St.  Albans  which 
seme  of  the  defendants  form  being  a  different  line  from  that 
formed  to  Montreal  through   St.  Albans,  and  different  again  to 


i,z.dbvGoOgle 


BOSTON  AND  ALBANY   V.   BOSTON   AND   LOWELL   R.   00.   66T 

that  formed  to  Detroit,  and  bo  on.  Tliis  ie  the  substance  of  the 
Terr  ingeiiions  argnment  pi-esented  and  elaborated  for  the  defenca 

We  do  not  think  the  argnment  sound.  Withont  pausing  now 
to  inquire  wliat  was  meant  hy  tlie  words  "nnder  a  common  control, 
management,  or  arrangement,"  etc.,  or  whether  those  words  have 
any  application  at  all  to  earriei's  wholly  by  raili-oad,  we  liave  no 
dimcnlty  in  holding  that  if  the  defendants  join  in  making  the  tariff 
which  constitutes  the  lesser  charge  on  the  longer  haul,  while  one- 
or  more  of  their  number  make  the  greater  charge  on  the  shorter 
banl,  the  case  is  within  the  fourth  6ection,and  those  who  make  such 
-  greater  charge  are  called  npon  to  jnstify  it.  "  Any  common  car- 
rier"  is  as  much  restrained  when  it  unites  with  one  or  more  otiiers 
in  making  the  long-haul  charge  as  when  it  makes  such  cliarge  in- 
dependently. Nor  have  we  any  donbt  as  to  tlie  meaning  of  the 
word  "  line"  in  the  act.  A  pliyeical  line  was  meant ;  not  a  busi- 
ness arrangement;  and  one  piece  of  road  may  be  part  of  sevei'al 
lines,  as  the  road  from  Boston  to  White  River  Junction  is  part  of 
the  line  to  St.  Albans,  and  also  part  of  the  lines  severally  to  Mon- 
_treai,  Ogdensbnrgh,  Detroit,  Port  Huron,  and  Ciiicaeo.  When  a 
greater  charge  is  made  from  Boston  to  White  River  Junction  thiin 
18  made  by  way  of  that  point  to  any  one  of  the  other  points  named 
the  two  are  made  for  hanls  on  the  same  line,  the  shorter  being  in- 
cluded within  the  longer  distance. 

II.  By  some  of  the  defendants  it  is  claimed  that  the  case  ts  not 
brought  within  the  fourth  section  of  the  act,  because  the  tariff  for 
the  long-haul  traffic  is  not  made  by  the  defendants,  singly  or  col- 
lectively, but  by  the  J^ationai  Despatch  Line  which  operates  over 
their  roads. 

The  National  Despatch  Line  is  one  of  the  many  fast  freight 
lines  of  the  country,  but  is  perhaps  in  some  respects  peculiar.  It 
is  neither  a  corporation  nor  an  association  of  persons.  It 
exists  by  virtue  of  no  formal  agreement  or  writing.  One  witness 
speaks  of  it  as  a  name  merely;  miother  as  a  trade  mark.  It  is 
nevertheless,  so  far  as  the  public  dealing  ivith  it  are  concerned,  an 
acttiiility  of  much  importance,  for  it  not  only  transiicts  a  large  busi- 
ness but  takes  all  the  traffic  passing  over  the  Central  Vermont 
destined  to  or  coming  from  points  beyond  St.  Albans.  It  has  for 
general  manager  Mr.  John  Porteous,  who  owes  his  office  or  position 
to  the  president  of  the  Central  Vermont  R.  Co.,  whose  power  to 
appoint  does  not  appear.  Mr,  Porteous  appoints  sonie  assistants, 
but  in  general  the  railroad  agents  are  agents  of  the  National  De- 
spatch Line  also.  The  reason  for  establishing  the  line  originally 
was  that  the  roads  were  greatly  deficient  in  roiling  stock,  and  a  car 
company  was  formed  to  loan  tlicm  cars,  and  this  line  called  into 
existence  to  operate  the  cars.  The  roads  pay  mileage  for  the  use 
of  the  Cfti-s.  The  earnings  of  the  line,  less  the  expenses,  are  divided 
atnong  the  roads  in  agreed  proportions.     Mr.  Porteous  makes  the 


^d  by  Google 


668  UTTERSTATZ  OOMMKBOB  ACT — LONG  AND  8H0BT  HAUL. 

tai'iGfs  for  traffic  taken  b;  the  line.  The  long-banl  traffic  rates 
mentioned  ill  the  compliiiiite  are  rates  made  by  bim,  tlie  several 
defendants  taking  no  part  in  making  them. 

Tliese  ai-e  the  facta  ae  they  appear  from  the  proofs.  We  deem 
it  iinneceseary  to  comment  upon  tliein  any  fnrtlier  than  is  Tieedfol 
to  draw  the  legal  coiiclueion.  The  responsibiiity  of  the  defendant 
carriers  for  the  loiig-liaul  rates  is  unquestionable.  They  did  not 
throiigli  their  own  officers  fix  them,  but  they  one  and  all  at^qniesced 
in  tiie  designation  of  a  person  to  be  allowed  to  fix  them;  they  per- 
mit tlie  bnsiness  to  be  done  orer  their  roads  respectively  at  the 
rates  named,  and  tliey  accept  their  several  proportions.  It  would 
be  diflicult  to  imagine  a  method  wliereby  tliey  would  become 
bound  more  concliisively,  for  Mr.  Porteoua  is  agent  for  all  in  inalt- 
itig  the  rates,  and  they  all  acquiesce  in  wliat  lie  does,  so  that  tiiey 
'would  he  bound  dven  if  be  hud  acced  at  first  witliout  full  authority. 
The  aiTangumeut  as  it  exists  in  fuct,  thougli  it  be  only  a  name  or 
a  trade  mark,  makes  the  National  Despatcli  Line  or  its  manager 
repreeentjjig  it,  the  agent  for  sach  roads  as  tlie  line  is  opemted 
over.  Its  rates  are  their  rates  for  the  business  done,  and  at  their 
peril  they  must  see  that  it  tariffs  are  filed  with  this  commission^ 
and  that  iJi  other  particulars  the  law  is  obeyed  by  it. 

III.  Tlie  principal  controversy  in  the  case  has  been  over  the  jus- 
tification set  ap  for  the  charges  on  the  ahort-haul  traffic.  As  bear- 
ing upon  that  controversy  a  considerable  body  of  evidence  was 
taken,  the  purpose  of  which  was  to  sliow  that  the  very  low  rates 
-charged  for  long-lianl  traffic  were  %  necessity  of  the  situation,  and 
that  the  higlier  rates  for  ehort-hanl  traffic  were  the  lowest  that 
could  be  afforded.  As  the  Central  Vermont  is  the  road  principally 
concerned  with  the  short-iiaul  rates,  and  the  lines  for  long  iiaol 
traffic  are  very  often  spoken  of  as  Central  Vermont  lines,  it  will 
not  be  necessary  in  the  further  discussion  of  the  case  to  distin- 
gnisli  between  the  several  roads,  and  wliat  we  have  to  say  will 
perhaps  be  more  readily  grasped  and  nnderstood  if  we  avoid  doing 
ao. 

The  Central  Vermont  is  the  successor  to  the  Vermont  Central 
and  the  Vermont  &  Canada  roads,  constrQCted  in  1849  for  local 
traffic  and  whicli  became  bankrupt  and  sunk  all  their  capital. 
There  was  a  long  receivership,  at  tne  end  of  wliich  a  reorganization 
was  effected  under  the  name  of  the  Central  Vermont  witli  a  bonded 
debt  of  several  million  dollars.  Tlie  company  as  reorganized  has 
paid  the  interest  on  its  debt  but  no  dividends;  the  surplus  earnings 
being  all  expended  in  improvements.  The  road  is  in  a  tine  state 
of  repair  (ind  efficiency,  well  supplied  with  motive  power,  but  still 
making  use  of  leased  cars  througli  tlie  National  Despatch  Line. 
The  tine  of  road  is  tlirougii  a  sparsely  populated  country,  with  no 
large  towns,  and  where  the  industry  is  mainly  agricultural.  For 
uiaity  yeara  the  populatiou  has  been  nearly  statiouary  in  Dumbers^ 


^d  by  Google 


BOSTON  AND  ALBANY  V.    BOSTON   AND   LOWELL   K.    CO.  66& 

but  the  wealth  of  the  people  has  been  steadily  increasing,  and  to 
this  increase  the  railroads  have  no  doubt  largely  contiibuted;  per- 
haps it  is  not  too  mnch  to  say  tliat  they  have  rendered  it  poEsible. 
There  is  not  enough  local  traffic  along  the  line  of  the  road  to  enable 
tlie  company  on  any  possible  lariff  to  maintain  afii'8t-claB£road,ai]d  its 
man  age  1-^  before  ana  dnring  tiie  receivership  directed  their  energies 
to  making  it  a  link  in  throngh-lines  from  Boston  and  other  ]Ncw 
England  towns  to  Montreal,  Detroit,  Cliicago,  and  other  points  in 
the  West.  These  efforts  were  siiccessf  nl,  and  the  Central  Vermont 
was  recognized  by  the  Trunk  Lines  as  a  powerful  rival  for  the 
traffic  between  the  Mississippi  Valley  and  the  seaboard,  and  was 
allotted  large  percentages  of  the  business.  But  as  the  line  was 
mnch  less  direct  than  tuose  of  the  Trunk  Line  roads  and  more  time 
was  reqnii'ed  for  the  passage  of  trains  over  it  than  between  the 
same  points  over  the  other  lines,  it  was  compelled  to  ntake  con- 
cessions in  rates  to  shippers,  and  the  Trunk  Lines  recognized  this 
necessity  and  allowed  it  a  difFerential,  as  it  is  called;  that  is  to  say^ 
allowed  it  to  make  concessions  on  west-bound  traffic  np  to  an 
agreed  point  without  its  being  regarded  as  a  catting  of  mtes.  This- 
differential  has  been  as  high  as  ten  cents  a  hundred  pounds  on 
first  class  freight  between  Boston  and  Cliicago,  and  proportional 
on  the  lower  classes,  but  so  large  a  differential  is  not  now  conceded. 
The  National  Despatch  Line,  however,  continues  to  insist  upon  it, 
and  its  doing  so  led  to  the  institution  of  the  original  proceedings. 
The  carriers  forming  the  Central  Vermont  lines  insist  that  the  dif- 
ferentials they  make  are  necessary  to  enable  them  to  obtain  a  fair 
share  of  the  busineES ;  their  rivals  deny  this  and  claim  that  it  re- 
sults in  forcing  commerce  into  unnatural  channels  and  in  the  tak- 
ing of  traffic  at  nnremnnerative  rates.  All  this  controvery  was- 
gone  over  in  the  evidence  and  in  argument,  with  tlie  purpose  on 
one  side  to  estop  the  Boston  &  Albany,  as  an  assenting  party  to 
the  differentials,  from  mnking  tlie  complaint  it  now  sets  up,  and 
on  the  other  to  convict  the  defendant  roads  of  nnfairness  to  their 
competitors.  Bat  all  this  becomes  ininiaterial  to  the  controvei-sy 
presented  by  the  complaint  of  the  State  Grange.  What  we  are 
concerned  with  now  are  the  local  rates  as  they  affect  local  shippers, 
not  the  through  rates  as  they  affect  the  rival  lines. 

One  peculiarity  of  this  controversy  is  that  the  differentials  are 
not  given  or  taken  on  east-bound  traffic,  but,  nevertheless,  the  Cen- 
tral Vermont  Line  is  enabled  to  obtain  its  full  share  of  the  basi- 
ness.  The  reasons  for  this  were  not  brought  out  on  the  bearing, 
but  evidently  the  roads  forming  that  line  liave  been  able  to  give 
shippers  more  satisfaoorv  facilities  on  east-bound  than  on  west- 
bound traffic.  But  this  also  is  unimportant  now.  What  is  import- 
ant is  the  fact  that  the  through  business  is  a  necessity  to  the  Cen- 
tral Vermont,  if  it  is  to  maintain  its  present  state  of  efficiency. 
The  strictly  through  tonnage  over  it  for  the  year  ending  June  30, 


^d  by  Google 


■<370  INTERSTATE  COMMEECE  ACT— LOlfG   AND  SHOBT  HAUL. 

1886,  was  seventy-nine  per  cent  of  all;  the  strictly  local  tonnage 
was  but  live  and  oiie-foiirtli  per  cent,  while  what  is  denominated 
in  the  evidence  joint  freight,  that  is  to  say,  freight  received  at 

!>oii)ts  on  the  line  from  points  beyond  its  termini,  or  taken  np  at 
ociil  points  to  be  transported  beyond  the  termini,  was  fifteen  and 
three  fourtiia  per  cent.  It  is  very  evident  from  tliese  figures 
that  neicher  on  the  local  traffic  alone,  nor  on  that  anj  the  joint 
traffic  can  a  first-class  road  be  maintained.  It  is  tlierefoi-e  the 
ri^bt  and  we  may  say  the  duty  of  the  maTia?ei-s  of  the  Central 
Vermont  to  obtain  and  keep  np  a  through  business  if  they  can  do 
so  without  injustice  to  the  local  traffic  and  without  riolatioD  of 
law. 

No  injustice  is  done  to  the  local  traffic  by  taking  through  traffic 
at  very  low  rates,  provided  the  doing  so  neither  makes  the  local 
traffic  more  expensive  nor  otherwise  incommodes  it.  The  defend- 
ants put  in  evidence  to  sliow  (1)  that  tlte  rates  on  local  tmffic  are 
not  out  of  proportion  to  those  charged  on  through  traffic;  it  being 
very  much  more  exiiensive  to  handle  an  equal  ainntint  of  tlie  for- 
mer than  of  the  latter;  (2)  that  the  througb  traffic  is  not  carried 
at  a  loss,  but  thci-e  ai-e  net  gains  from  it  in  the  aggregate  exceeding 
4hose  on  the  local  and  joint  traffic  put  together,  and  that  it  is  by 
means  of  these  g.iins  that  the  efficiency  of  the  road  is  maintained  ; 
(3)  that  the  rates  on  the  through  traffic  cannot  be  materially  ad- 
vanced without  losing  it,  and  (4)  that  the  company  cannot  aSord 
to  reduce  the  rates  on  the  iocal  traffic  Tiiero  was  strong  evidence 
in  support  of  all  tliese  propositions.  We  are  entirely  satisfied  that 
a  large  through  business  is  easetittal  to  tiiis  line  if  it  is  to  continue 
to  be  a  nseful  line  even  for  local  bnsiness.     We  are  also  satisfied 


that  the  people  of  Vermont  are  largely  interested  in  the  low  rates 
on  the  loiig-liaiil  traffic,  not  only  because  to  some  extent  they  send 
manufactured  articles  to  distant  points,  but  much  more  becanse 
Vermont  relies  very  largely  on  the  West  for  grain,  flour,  meats, 
and  provisions.  It  is  liigiily  pi-obable  that  if  tba  people  of  that 
State  payhigli  rates  on  local  traffic  they  are  fully  compensated  in  the 
low  rates  on  loug-haul  traffic.  A  board  having  full  power  to  adjust 
rates  as  circumstances  should  seem  to  require  might  perhaps  so  hold. 
IJut  onr  power  in  this  regard  is  restricted  hy  the  terms  of  the 
law  which  absolutely  forbid  a  carrier  "  to  charge  or  receive  anj' 
greater  compensation  in  the  aggregate  for  the  transportation  of 
passengers  or  of  like  kind  of  property  under  substantially  similar 
circumstances  and  conditions  for  a  shorter  than  for  a  longer  dis- 
tance over  tlie  same  line  in  the  same  direction,  the  shorter  l>eing  in- 
cluiled  within  the  longer  distance."  This  is  the  law  which  gov- 
erns our  action,  and  it  cannot  he  departed  from  by  us  on  consider- 
ations of  equity  or  of  what  would  be  for  the  interest  of  parties 
concerned.  If  parties  complain  of  a  violation  of  the  law  we  can 
-only  pass  upon  the  charge  preferred,  and  our  action  cannot  be  af- 


i,z.dbvGoOgle 


HUSTON   AND   ALBANY   V.    BOSTON  AND   LOWELL   B.    CO.  071 

fected  bj  the  circn instance  that  the  rates  as  adiasted  are  on  tho 
■whole  to  their  advantage.  Tliey  mnst  judge  of  tbeir  interest,  whilo 
we  are  to  judge  of  the  violations  of  law  which  are  complained  of. 

The  controversy  in  the  ciise,  then,  is  narrowed  to  this  question  : 
Are  tlie  circumstances  and  conditions  under  which  the  greatei 
charges  are  imposed  on  the  short-liaul  ti-afGc  eubstantially  dtssimi- 
lar  to  thofie  under  which  the  lesser  cliarges  are  imposed  on  tlie  long- 
haul  traffic  }  If  not,  such  greater  charges  are  illegal,  and  we  have 
DO  anthorit;  to  make  them  otlierwise. 

The  defendants  undertook  to  show  that  the  circnmstances  and 
conditions  were  substantially  diseiniiUr.  The  evidence  of  the 
difference  in  coat  was  very  justly  relied  upon,  for  cost  is  a  very 
important  condition  to  traffic.  This  difference  fairly  justifies  a 
considerable  difference  in  the  rates,  but  we  are  not  satisfied  that  it 
will  support  the  difference  actually  made.  The  cost  of  different 
kinds  of  traffic  cannot  possibly  be  arrived  at  with  accuracy ;  at 
best  only  au  approximating  estimate  can  be  made.  The  calcula- 
tions put  in  evidence  do  not  satisfy  os  that  the  same  kind  of 
freight  can  be  taken  from  Boston  tlirougb  St.  Albans  to  Detroit  at 
a  less  cost  than  from  Boston  to  St.  Albans,  or  from  Boston  through 
Ogdensburgh  to  Chicago  and  Milwaukee  at  a  lees  cost  than  to 
Ogdensburgh.  Honest  calculations  are  made  to  show  such  a  re- 
sult, but  they  are  very  likely  to  charge  upon  locui  traffic  exclu- 
sively items  which  ouglit  to  be  apportioned,  or  to  leave  sometliing 
out  of  view  wliich  ought  to  be  considered. 

The  main  reliance  of  the  defence,  liowcver,  was  npon  a  showing 
of  the  competition  which  defendants  must  meet  in  long-haul  traffic 
It  was  shown  that  for  traffic  between  Boston  and  the  West  there 
was  actual  or  possible  competition  by  steamei-s  to  Portland  and 
thence  over  the  G-rand  Trunk  by  steamei-s  to  Halifax,  and  tlience 
over  the  Inter-colonial  by  the  Sontlieastern  road  to  connect  with 
the  Canadian  Pacific  by  tlie  severiil  irunk  lines  and  by  combina^ 
tions  of  carriers  requiring  no  special  mention. 

The  evidence,  however,  is  entirely  conclusive  that  the  com- 
petition wliich  is  troublesome  to  the  defendants  is  that  of  the 
Trunk  Lines.  It  is  from  these  that  the  defendants  demand  the 
differentials,  and  it  is  because  they  are  possessed  of  the  shorter 
lines  tiiat  the  differentials  become  necessary.  The  defendants  do 
not  fear  the  competition  of  a  ronte  by  Hiilifax  or  of  any  of  the 
other  circuitous  routes  that  can  be  organized,  and  such  lines  do 
not  constitute  circumstances  or  conditions  having  any  perceptible 
bearing  on  the  present  controversy.  The  circumstances  and  con- 
ditions that  must  justify  the  greater  charge  on  the  shorter  haul 
over  the  Central  Vermont  line  must  be  such  as  spring  from  the 
trunk-line  competition. 

In  the  matter  of  the  Lonisville  and  Nashville  R.  Co.  we  ex- 
pressed the  opinion  that  there  might  be  cases  in  which  the  coia> 


^d  by  Google 


C73  INTEBSTATE  COUMEKCE   ACT — LOMG   a:ND  SHOUT  HAUL. 

petition  between  railroads,  even  wlien  tliej'  were  all  eubject  to  iho 
jurisdiction  of  tlie  commiesion,  would  present  sacli  diEBiiiiilarity  of 
circit instances  and  conditions  between  long  liaal  and  sliort  haul 
tnillic  aa  to  jnetify  the  greater  cliara;e  on  tne  shorter  liaul  on  tlie 
same  line  in  the  same  direction.  But  our  published  opinion  shows 
that  we  thought  the  case  mast  be  rare  and  quite  exceptional.  The 
trunk  lincB  ure  all  subject  to  our  jurisdiction.  What  then  are  the 
peculiar  ci re nm stances  and  coiidinons  wiiich  constitute  tiie  differ* 
ence  between  the  case  before  us  and  cases  of  railroad  competition 
in  ^nerall 

The  principle  difference  must  be  found  is  the  fact  that  tbe 
Trunk  lines  liave  interior  or  shorter  lines  as  compared  with  tbe 
line  of  the  defendants,  and  the  latter  are  compelled,  therefore,  to 
make  very  low  rates  on  their  through  traffic.  Tliis  is  a  necessity 
of  the  sitnation.  But  it  is  a  necessity  which  exists  wherever  long 
and  short  lines  compete;  the  long  line  mast  accept  the  rates  made 
by  the  siiort  line,  and  periiaps  make  concessions  from  them.  In 
this  respect  there  is  nothing  peculiar  in  the  position  of  these  de- 
fendants; thei'e  are  roads  in  every  part  of  the  country  which  cao 
make  the  same  claim  they  do  with  the  same  justice.  It  is  a  claim 
that  could  be  advanced  wherever  a  route,  however  circuitons, 
could  be  formed  for  long-haul  traffic  A  line  from  Boston  to 
Detroit,  for  example,  miglit  be  formed  by  way  of  the  Chesapeake 
and  Ohio  K.,  and  one  from  Cliicago  to  St.  Louis  by  way  of 
St.  Paul.  The  greater  the  departure  from  a  direct  line,  the 
greater  would  cotnmonlv  be  the  necessity  for  low  rates  on  through 
traffic,  and  the  greater  the  liability  to  have  the  charges  on  tlie  local 
traffic  increased  Lo  make  the  cai-riage  of  through  traffic  poeeible. 
But,  without  enlarging  on  this  branch  of  the  case,  we  content  our- 
selves with  saying  tliat  audi  peculiar  facts  are  not  found  to  exist 
in  this  case  as  will  justify  the  gi'eater  charge  over  tlie  shorter  line. 

Tiiere  remains  for  us  only  the  duty  to  make  and  issue  the  order 
which  the  facts  found  require.  The  Central  Termont  and  the 
other  defendants  coneemed  with  it  in  interstate  traffic  between 
Boston  and  St.  Albans  and  Boston  and  Ogdensbnrgh,  respectively, 
including  those  points,  must  wholly  cease  and  desist  from  charging 
or  receiving  in  respect  to  any  part  of  such  traffic  a  greater  com- 
pensation for  transportation  of  a  like  kind  of  property  for  a 
shorter  than  for  a  longer  distance  over  the  same  line  in  the  same 
direction,  the  shorter  being  inelnded  within  the  longer  distance. 
In  performing  tiiis  duty  we  neither  do  nor  with  propriety  can  ex- 
press opinion  upon  the  intrinsic  reasonableness  or  justice  of  th« 
rates  heretofore  imposed,  except  to  this  extent,  that  we  do  not 
think  it  was  shown  by  the  evidence  that  when  tbe  local  tariffs  are 
made  to  conform  to  the  letter  of  the  law  as  above  directed  they 
will  be  unreasonable. 

In  this  opinion  all  concur.     On  filing  this  report  and  opinion 


^d  by  Google 


BOSTON   AND   ALBANY  V.    BOSTON   AND   LOWELL  E.   00.   673 

the  following  order  was  entered  :  These  three  casea  having  been 
brought  on  to  be  heard  at  Kntland,  in  the  State  of  Termont,  on 
docninsiitaiT  and  oral  testimoD;,  and  counsel  having  been  heard 
on  behalf  of  the  reepective  parties,  that  is  to  say,  Mr.  Samnel 
Hoar  for  the  complainants  in  the  first  two  cases,  Mr.  George  F. 
Edinnnde  and  Mr,  Easkina,  of  Haekins  &  Stoddard,  for  the  com- 
plainant in  the  third  case,  and  Messrs.  B.  F.  Fifield  and  A.  A. 
SCroQt  for  the  defendants;  and  due  deliberation  baring  been  had, 
and  the  report  and  opinion  of  the  commission  being  now  tiled — ■ 

It  is  now  ordered  and  adjudged  that  the  Central  Termont  B. 
Co.  and  the  other  defendants  concerned  with  it  in  interstate  traffic 
between  Boston,  in  the  State  of  Massachusette,  and  St.  Albans,  in 
tlie  State  of  Vermont,  or  between  Boston  aforesaid  and  Ogdens- 
borgh,  in  the  State  of  New  York,  including  those  points  respect- 
ively, do  and  shall  wlioUy  and  immediately  cease  and  desist  from 
cliarging  or  receiving,  in  respect  of  any  part  of  snch  traffic,  a 
greater  compensation  for  the  transportation  of  a  like  kind  of  prop- 
erty for  a  shorter  than  for  a  longer  distance  over  the  same  line  in 
the  same  direction,  the  shorter  being  included  within  the  longer 
distance. 

And  it  is  fnrther  ordered  that  a  copy  of  this  order,  with  notice 
requiring  obedience  thereto,  be  forthwith  sent  to  each  of  the  de- 
fendant corporations,  and  that  at  the  same  time  there  he  also  sent 
to  each  of  sncli  defendants  a  copy  of  the  report  of  the  conimisBion 
above  referred  to. 


^d  by  Google 


lib,  Google 


INDEX 


17011—1110  meda  of  dtlng  the  American  and  Engllsb  Baflroad  Cues  Is  ai 
fOUowa: 

SI  Am.  &  Eag.  R.  B.  Caa. 


nie  Index  contains  refeiencea  to  the  decislonB  and  to  the  notes.  Beferanoes 
to  the  decIfltoiiB  are  U>  the  po^  upon  which  the  cases  befcin.  References  to  the 
notes  are  to  the  pages  upon  wbicb  the  propodtions  stated  In  the  index  are  found. 
References  to  ConatltuUonal  or  Statutory  ProTlaions  are  to  the  pages  upon  which 
thftr  are  dted. 


AOOOXD  Am  flATnTAOnOV. 

Where  plaiDtifl  was  injured,  and  after  injut?  contiDtied  in  company's  mt- 
TJce,  the  mere  fact  that  be  accepted  pa;  at  the  usual  rate  aid  not 
depart  from  the  ipecial  agreement  to  the  effect  amouDtiag  to  accord 
and  satisfaction  so  <a  to  estop  him  from  suing  for  damages.  Hewitt 
«.  Flint,  etc^  R.  Co.    S4S. 

A0II0X8.    See  Abuais  ;  AssiomcEST. 

Colorado  statute  as  to  railroad's  liabilty  for  stock  killed  does  not'apply  for 
stock  killed  in  New  Mexico,  and  in  absence  of  proof  of  New  Mexico 
Statute  its  existence  will  not  be  presumed ;  but  if  killed  by  company's 
gross  negligence,  it  is  liable  under  common-law  principles  without  re- 
gard to  New  Mexico  laws.    Atcbisoo,  etc.,  R.  Co.  e.  Betts.    6S3. 

Declaration  by  widow  for  damages  for  busbani's  death,  stating  that  de- 
>  ceased  got  on  track  sixty  feet  iu  front  of  trau,  approsching  at  rate  of 
fifteen  to  thirty  railes  so  hour,  unobserved  t>/  him,  though  there  was 
nothing  to  obstruct  view,  and  proceeded  in  middle  of  truck  to  walk 
home,  and  was  killed  by  train,  and  engineer  might  and  ought  to  have 
aeen  him,  states  no  cause  of  action,  and  demurrer  should  lie  sustained. 
Kobile,  etc.,  R.  Co.  e.  Stroud.     443. 

Owner  of  stock  killed  by  railroad  may  have  common-law  action  against 
company  for  negligence,  though  ststute  makes  it  liable  without  regard 
to  negligence,  provided  owner  foUowa  procedure  nquind.  Deurer, 
etc.,  R.  Co.  e.  Henderson.    0A&. 


AUSHTDIO.    Bee 


^dbyGooglc 


FlBintifi  oQlf  alleged  possenion  of  hotel  property  without  showing  Urn- 
self  a  party  or  pnv;  to  ao;  coveoant  in  the  deeds  as  to  a  right  of 
waj.  Held,  not  error  for  court  on  plaiutifi's  motioii  to  permit  amend- 
meot  setting  up  plaintiff's  lease,  Avery  s.  New  York,  etc.,  R,  Co. 
S83. 

AinXAUI.    Sec  Arbitratiok  ;  Fences  ;  Iin>icrMEST. 

Arkanaaa  act  providing  that  railroad  hands  caught  disflguriDg  carcass  killed 
on  railroad  without  first  notifying  persons  whose  duty  it  was  to  pre- 
aerve  msrka  or  value  of  stock  Bhali  be  guilty  of  misdemeanor  snd 
flned,  IB  not  uncoostitutiooal,  arising  from  the  police  power  and  not 
being  class  legislation  or  of  unequal  operation.    Bannon  v.  Btate.    5S3. 

Colorado  statute  as  to  railroad's  liability  for  stock  killed  does  not  apply 
for  stock  killed  in  New  Mexico,  and  in  absence  of  proof  of  New  Mex- 
ico statute  its  existence  will  not  be  presumed;  but  if  killed  by  com- 
pany's gross  negligence,  it  is  liable  under  commou-iaw  principles 
without  regard  to  New  Mexico  laws.     Atchison,  etc,  R.  Co.  •.  Betts. 

ses. 

Engineer  after  discovery  of  animal  on  track  must  stop  train  if  he  has 
reasonable  apprehension  of  its  remaining  there,  though  he  need  not 
anticipnte  such  remaining  before  it  becomes  his  duty  to  stop.  QriiD- 
mell  e.  Chicago,  etc.,  R.  Co.     687. 

Evidence  as  to  the  precise  time  of  first  discovery  of  cattle  on  track  msy 
be  excluded  when  it  is  undisputed  that  engineer  after  discovery  had 
time  to  stop  before  accident.     Orimmell  v.  Chicago,  etc.,  R.  Co.    537. 

Failure  of  trial  court  to  state  issues  presenting  question  of  cootributoir 
negligence  is  not  error,  tliere  being  a  subsequent  instruction  in  which 
duty  of  defendant  to  restrain  stock  was  correctly  stated;  Issneeneed 
not  be  stated  iu  single  paragraphs  of  charge.  Timmins  t.  Chicsgo, 
etc.,  R.  Co.     641. 

Horse  was  alleged  U>  have  been  injured  by  falling  through  cattle-guard  by 
failure  to  fence  track;  tracks  of  horse  showing  speed  on  right  of  way 
and  passage  of  train  during  night  of  accident  were  proved;  court  in- 
structed that  plaintiff,  to  recover,  must  show  by  preponderance  o( 
evidence  cause  of  injury  to  have  been  driviog  of  horse  by  train  into 
cattle-guard.  Held,  presumption  of  fright  by  train  mere  surmise,  and 
verdict  for  plaintiff  could  not  be  sustained.  Moore  c.  Bnrlington, 
etc.,  R.  Co.     573. 

loBtruction  that  if  jury  found  that  horses  escaped  from  pasture,  passed 
over  guard,  stepping  between  cross-ties,  and  that  differently  con- 
structed cattle-guards  were  used  elsewhere,  those  facts  would  not  jus- 
tify inference  that  cattle  guard  was  defective  or  insufficient,  ia  not 
erroneous,  there  being  sufficient  other  evidence,  to  which  court  called 
attention,  of  character  of  guards.  Timmins  c.  Chicago,  etc.,  B.  Co. 
541. 

Ijeod-owner  habitually  turning  horses  on  adjoining  troek  through  gate 
maintained  for  his  accommodation  as  convenient  way  for  them  to  go 
to  pasture  cannot  claim  compensation  for  injuries  to  which  he  volun- 
tarily exposed  them.     Ft.  Wayne,  etc.,  R.  Co.  f.  Woodward.     M6. 

IiOCOmotive  fireman  on  train  which  killed  stock,  having  four  years'  experi- 
ence, may  give  his  opinion  as  witness  as  to  whether  there  was  time  tA 
stop  within  certain  distance  of  an  animal  on  track,  question  being 
possibility  of  stopping  after  stock  was. discovered.  Orimmell  «.  Chi- 
cago, eic,  R.  Co.     537. 

Here  killing  of  animal  by  railroad  is  not  evidence  of  negligence,  and  fKA 


^dbvGooglc 


AKH  AI5—  Omtinued. 

that  animal  was  found  killed  on  track  will  not  warrant  recorery 
against  com  pan  v.     AtchiaoD.etc.,  R.  Co.  e.  Betts.     G68. 

Owner  cbd  recover  for  killiBg  of  horse,  escaped  from  his  control,  having 
used  reasonable  diligence  to  recapture;  killing  having  been  b;  pass- 
ing train  at  railroad  crossing  running  faster  than  permitted  b;  tha 
New  Hampshire  statute;  and  compsnj's  negligence  maj  Ik  inferred 
b;  rate  of  speed.    Clark  «.  Boston,  etc.,  R.  Co.     S48. 

Owner  of  stock  killed  by  ra'lroad  may  have  common  law  action  against 
company  for  negligence,  though  statute  makes  it  liable  without  regard 
to  negligence,  provided  owner  follows  procedure  required.  Denrer, 
etc.,  II.  Co.  e.  Henderson.     559. 

Rule  that  those  in  charge  of  trains  need  not  watch  to  ascertain  if  an  ani. 
mal  trespassing  on  track  without  company's  fault  is  there,  and  that 
their  duty  arises  only  on  discovery,  applies  to  case  of  animal  wrong, 
fully  on  highway  at  railroad  crossing.  Palmer  c.  Northern  Pac.  R. 
Co.     B44. 

Though  the  Mississippi  Code  provides  that  before  sale  mortgagor  shall  be 
deemed  owner  of  mortgaged  property,  it  is  no  defence,  in  suit  against 
railroad  for  killing  stock  in  mortgagor's  possession,  thst  it  was  mort- 
gaged and  the  mortgaged  property  forfeited  at  time  of  killing.  IIU- 
noia  Cent.  B.  Co.  n.  Hawkins.     581. 

tTnder  Texas  statute  making  railroad  liable  for  stock  killed  unlesB  track 
is  fenced,  the  company  is  not  liable  for  injur;  to  animal  on  track 
through  fright  at  train,  and  injured  on  trestle  and  not  by  locomotive 
or  cars.     International,  etc.,  R.  Co.  v.  Hughes.     S69. 

Where  evidence  showed  that  cow  killed  by  locomotive  could  have  been 
seen  where  she  was  lying  after  injury  by  one  on  engine  for  about  175 

Jards,  and  that  had  engineer  been  looking  out  of  right  side  of  cab  as 
:  rounded  curve  cow  might  have  been  seen  in  time  to  stop  train, 
there  is  enough  proof  of  negligence  to  submit  question  to  jury.  Den- 
ver,  etc.,  R.  Co.  c,  Henderson.     669. 

Where  owner  pursues  common-law  rrmed;  he  has  burden  of  proof,  and 
does  not  make  out  prima  facie  negligence  by  showing  injury  by  loco- 
motive striking  stock  and  damages  for  certain  sums,  railroads  not 
being  required  in  Arkansas  to  fence,  and  stock  being  permitted  to 
run  at  large.    Denver,  etc.,  R.  Co.  c.  Henderson.    559. 

Where  rMlroad  on  which  stock  was  killed  is  owned  by  one  company  and 
leased  by  another  without  special  authority  from  Btate,  both  cotn- 
paaies  are  liable  to  owner.     Missouri  Pac.  R.  Co.  «.  Dunhain.     630. 

Where  statute  forbade  running  of  faorseB  at  large,  and  horscB  left  loose  in 
enclosed  lot  in  which  there  was  an  speraiure  in  side  next  hishway 
open  except  for  single  loose  bar  which  horses  pushed  aside  and  then 
escaped  on  highway  and  on  railroad  crossing  were  killed,  owing,  as 
alleged,  to  defective  cattle-guard,  question  whether  turning  horses 
loose  under  circumstances  is  contributory  negligence  or  equivalent  to 
allowing  them  to  remain  at  large  within  meaning  of  statute  is  for 
jury.     Timminse.  Chicago,  etc.,  R.  Co.    641. 

Where  stock  is  killed  while  trespassing  on  track  in  town,  it  may  be  shown 
that  Stock  was  not  permittetl  by  iaw  to  run  at  large  in  said  town ;  and 
there  being  such  law,  railroad  is  liable  only  for  gross  negligence  ia 
killing  same.     Hiuouri,  etc.  It.  Co.  «t  al.  v.  Dunham.     580. 

AnOTATIOVB. 

Sutrival  of  right  of  action  to  personal  representattv».    810  n. 


rciiz^dbvCoO^^lc 


678  IHDBI. 

ijnrOTATI<nS— Om/jntwd 
Aiightiag. 

Alighting  from  moving  trftln.    fiOn. 

Alighting  from  Blowljr-moTiiig  tmin  where  compui;  U  oeg^igent.     Bl  ti. 

Atighing  against  the  cooductor't  advice,     08  n. 

Alighting  by  direction  of  the  conductor.     02  m. 

Wliether  slighting  amounts  to  negligence  is  for  tbe  jniy.    63  n. 
Moimali.     See  Fxhceb. 

AnimsU  eDtericig  railroad  bridge  from  public  highway.    499  n. 

Csttle  shesd  nesr  bridge.  When  animal  has  left  the  trsck.  Animal 
wrongfully  on  highway  st  crosaingB.    497  n. 

Cattle  attracted  to  depot  by  hay  on  cars.    497  n. 

Contributory  negligence  of  Owner.  As  defence  when  compsny  has 
failed  to  fence.  What  ii — what  is  not  contributory  Degligence.    SOO  n. 

Duty  of  engineer  on  perceiving  csttle  on  trsck,    497  n. 

Injuries  to  animals.  Fences,  When  company  is  not  liable.'  Unavoid- 
able injury.     496  n. 

Injuries  to  animals.  Fences.  Contributory  negligence.  Absence  of 
n(?gligeDce.     496  n.  > 

lojuriea  to  animals.  Fences.  Injuries  not  resulting  from  contact  with 
moving  trsin.     496  n. 

Presumption  of  negligence.  Statutory  provisions.  When  negligencQ- 
need  not  be  proven.  Inferred  from  unlawful  speed,  nnnsuu  but 
lawful  speed  no  evidence.  Number  of  brakemen  on  train.  Appli- 
ances for  stopping  train  at  night.     499  n. 

Safety  of  train  must  be  regarded.     497  n. 

Where  railroad  is  owned  by  one  company  and  leased  by  another.    497  n. 

Where  owner  wilfully  exposes  animals  on  track,    496 n. 

When  sounding  signals  would  not  have  averted  injury.     497  n. 

When  speed  of  train  may  be  slackened  or  increased.     497  n. 

When  company  is  liable  for  failure  to  eiercise  reasonable  care.  Fsilnie 
to  give  signals  at  crosxings.  For  killing  mortgaged  stock.  For  de> 
fective  headlight.  Where  owner  is  negligent.  For  stock  killed  at 
unfenced  point  where  company  is  bouiid  to  fence.     4S8  n. 

Permitting  cattle  to  run  at  large  is  not  contributory  negligence.     501  m. 

Cattle  running  at  targe  killed  through  negligence  of  company.  Ques- 
tion for  jury.     001  n. 

Injuries  to  animals  at  crossings.     005  n. 

Validity  of  statute  imposing  criminal  liability  upon  officers  for  ne^i- 
gent  killing  of  Stock.     Constitutional  protectioDS.     679  n. 


What  is  b^gage.     W  n. 

Csttle  ahead  near  bridge.     When  animsl  has  left  the  track.     Ani™*! 
wrongfully  on  highway  at  crossings.     487  r. 

Animals  entering  railroad  bridge  from  public  highway,    499  Ik 
Carritra. 

Carrier's  liability  for  goods  deposited,    101  n. 
Coffiers  of  Lin-atock. 

Where  injury  is  caused  by  combined  negligence  of  the  carrier  ud  tto 
nature  and  propensities  of  the  live-stock.     01  n. 

What  are  injuries  resulting  from  inherent  nature  or  propensities  of  ani- 
mals for  which  carrier  is  not  liable.    91 ». 


^d  by  Google 


INDEX.  879 

mOTATIOn— OmtAMMl. 
CatHn-gaarda. 
Dut;  to  constnict  cftttle -guards.    SnffideiK^.    Borden  of  proof.   Placo 
and  mkonei  of  oonstiucting.     BemoTsl  of  Bnow  and  Ice.    600  ft. 

CMatiMional  Law.     See  CsDfBi, 
Obli^tion  to  fence.     Fence  laws  are  conitltiitlonal.     Btatotory  pro- 

TisiooB  aa  to  time  of  fendng.     Duty  to  fence  againat  awine.    540  n. 
Prima  faeU  caae  doea  not  take  awaj  preaumption  of  defendant'a  inno- 


Contribiitorjr Kegligmce.     8ee  Ashulb;  NESLiQBHca.   . 
Injuries  to  animala.    Fences.     Contributory  negligenoe.    Absence  of 

negligence.     498  n. 
Contributor;  negligence  of  emplojee  a  bar  to  Ilia  claim.     819  n. 
Infanta  .of  tender  jeara  cannot  be  contributorilj  negligent.    419  %, 
Intoxicated  paHenger  entitled  to  due  care.     S9  n. 
Intoxication  as  contributory  negligence.     69  ». 
Passenger  riding  in  dangerous  place.     73  n. 
Occupyiag  position  by  direction  or  consent.  Of  condnctor.     Oener&t 

rule.     Contrary  view.     78  n. 
Engineer  no  authority  to  permit  riding  on  engine.     7G  n. 
Rules  against  coupling  by  hand.     What  doea  not  amount  to  ocmtribu- 

tor;  negligence  on  part  of  employee.    166  n. 

Validity  of  atatute  imposing  criminal  liability  upon  officers  tor  negU* 
gent  killing  of  stock.     Constitutional  protections.     079  n. 

Injuries  to  crops.    SOS  n. 
Crottinga. 

Injuries  to  animab  at  crossingB.    009  n, 
Oamagm. 

Damages  for  iejuries  causiug  death.     84S  n. 

Liability  of  corporation  for  libel.     Punitive  damages.    Slander.     804  n. 

Violations  of  municipal  ordinances  regulating  speed  of  trains,  fences, 
gates,  etc.     Analogoua  muuicipal  cases.    4S1  n. 

Damages  for  killing  animals.    60Q  n. 

0)7ng  Oeclarathtti. 
Exclamations  of  pain.     Dying  dedaraUons.    856  n. 

£ridenc». 
Burden  of  proof  as  to  obligation  to  fence.    That  road  1 

S04n. 

Declarations  of  serrants  of  a  railroad  company.    805  n. 
Declarationa  of  the  party  injured.     8S6  n. 
Exclamations  of  pain.     Dying  declarations.     800  », 
Injuries  to  animals.     Evidence.     SOS  n. 
Btatementa  by  employees  before  or  after  acddent.    Admissibility  In 

evidence  aa  part  of  ra  gatm.    424  n. 


^d  by  Google 


680  INDEX. 

AHirOIATIOVB— CtmMtMd. 
FtHow-atiyaittt. 

Car-re pairera  and  other  employees  fellow-flerruLta.    297  n. 

Fellow-aervanta.     167  «. 

Liability  of  railroads  for  injuries  of  tellow-Beiraiita  nndei  statutes.    BtKb 

statutes.    Gonetitution.     817  n. 
What  employees  come  within  the  provisions  of  statutes  regulatdng  lis- 

bility  of  railroads  for  injuries  of  fcUoW'Servuita.    818  n. 
Contracts  with  compaoiea  relieving  tbem  from  liability.    319  n. 


Tiolations  of  municipal  ordinances  regulating  speed  6t  traine,  feocM, 

^Btes,  etc.    Analogous  municipal  cases.     451  n. 
Injuries  to  SDimaU.    Fences.     When  company  is  not  liable.     UnsToid- 

able  injury!    4SGn. 
When  company  is  liable  for  failure  to  exercise  reasonable  care.    Failure 

to  give  signals  at  crossings.     For  killing  morlgaged  stock.     For  de- 
fective headlight.     Where  owner  is  negtigcut.     For  stock  killed  at 

unfenced  point  nhere  company  is  bound  to  fence.     4Q8  n. 
Injury  through  failure  to  fence  before  completion  of  road.     490  n. 
Ho  duty  to  fence  against  animals  unlawfully  on  highway.    Where  aid- 

mal  escapes  from  enclosure  without  fault  of  owner.     Duty  to  fence 

against  crazy  horse.     602  n. 
Failure  to  fence  in  Hissouri.     When  the  covenant  to  fence  rone  with 

land.      When  failure  to  fence  will  be  excused.     S03  n. 
Where  fences  must  be  erected.    S08  n. 
Where  fences  need  apt  be  erected.    508  n. 
Sufficiency  of  fence.     Repair  of  fence.    Reasonable  time  to  repui. 

604  n. 
Burden  of  proof  as  to  obligation  to  fence.    That  road  was  nnfenced. 

604  n. 
Negligence  inferred  from  defective  fence.     Where  cattle  break  tbmogh. 

Where  fence  is  washed  away  or  thrown  down  b^  strangers.     605  a. 
Obligation   to   fence.     Fence  laws  are  constitutional.     Statutory  [va- 

visioos  as  to  time  of  fencing.    Duty  to  fence  against  swine.     610  tk 
Failure  to  fence  tracks  as  affecting  trespassers.    428  n. 
Municipal  ordinances  regulating  speed  of  trains.    Fences.    Oates,  ebs. 

448  n. 

Frvght  Tramt. 
Passengers  on  freight  train.    6  n. 

Mighmaim-     See  Bbidqsb. 
No  dnty  to  fence  against  animals  unlawfully  on  highway.    Where  ani- 
mal escapes  from  enclosure  without  fault  of  owner.    Duty  to  fence 
against  crazy  horse.     603  n. 

litfOnH. 
Children  trespassing  on  railroad  track.    Degree  of  cue  required  of  rail- 
road company.    416  n. 
Duty  of  engineer  on  discovering  child  on  track,    416  n. 
Infants  of  tender  years  cannot  be  contribntorily  negligent.    419  %, 
Capacity  of  child  fourteen  years  old.     420  n. 
Whether  negligence  of  parent  is  imputable  to  child.     431  ». 


^d  by  Google 


ASVOTATlOm—Oontinved. 

/otOJoeation.     See  Cohtaibutobt  Nkolioercb.  - 
DrunkenEieu.    Providential  helpIeBanesa.    Infuicj.    874  n. 
When  evidence  of  intoxication  is  admiBsible.      He&nay  evidence  of 

drunkenness  not  admissible.     60  n. 
Railroad  company  not  bound  to  carry  intoxicated  pasaengen.    00  n.    - 

LAel. 
Liability  of  corporation  for  libel.    Punitive  damages.    Slander.    864  n. 

Injury  to  person  travelliDg  on  track  with  license  of  company.     What 

amounts  to  license.    373  n. 
Master  and  Sermnt.     See  Fbllow-sbbvaktb, 

Injuries  in  coupling  cars.     Duty  of  the  company  as  to  cars  and  apparatus. 

lS3n. 
Defective  coupling  apparatus.     Onen  and  solid  drav-heads.     164  n. 
Injuries  in  coupling  cars  marked  defective.     1Q4  ti. 
Coupling  cars  with  projecting  loads.     165  n. 
Rules  againot  coupliug  b;  hand.     What  does  not  amount  to  contribu- 

tor;  negligence  on  part  of  employee.     166  n. 
Risks  of  ein|)loyment,     346  n, 

Ri'ks  assumed  by  train  hands.     Risks  not  assumed.     247  n. 
Perilous  duties  outside  scope  of  servants'  employment.    260  n. 
Company  bound  to  protect  car-repairers  from  peculiar  danger.     397  ». 
Car-repairers  and  otner  employees  fellow-servants.     2Q7  n. 
What  employees  come  within  the  provisions  of  statutes  regulating  lift- 

hiiity  of  railroads  for  injuries  of  fellow-servants.     318  n. 
What  injuries  are  risks  assumed  by  employee  on  coupling  cars.     167  n. 
Contracts  with  companies  relieving  them  from  liability.     819  n. 
Contributory  negligence  of  empliiyee  a  bar  to  his  claim.     310  n. 
Survival  of  right  of  action  to  personal  representative.    819  n. 
Liability  to  car-coupler  for  defects  in  cars  of  connecting  company.  Where 

B  railroad  company  has  been  held  liable.     Where  the  railroad  has  not 

been  held  liable.    Effect  of  statutes  and  contracts  upon  company's 

liability.     304  n. 
Declarations  of  servants  of  a  railroad  company.     SSS  n. 
Wtg/igence.     See  Anihaui  Cattlb-ouabds;  Fences;  PAsaBBSBKB. 
Presumption  of  negligence.     Statutory  provisions.    When  negligence 

need  not  be  proven.    Inferred   from  unlawful  speed.     Unusual  bat 

lawful  speed  no  evidence.    Number  of  brakemen  on  train.  Appliances 

tor  stopping  train  at  night.     499  n. 
Degree  of  care.    The  question  for  the  jury.    420  n. 
Whether  negiigence  of  parent  is  imputable  to  child.     421  n. 
Negligence  of  parent.     Question  for  jury.     422  n. 
Whether  alighting  amounts  to  negligence  is  for  the  jury.     52  n. 
Where  parent  conducts  child  to  place  of  danger.     433  n. 
Negligence  of  poor  parents.    423  n. 

Tlolations  of  statutory  duty  as  sfiecting  company's  liabilities.     447  n. 
What  are  injuries  resulting  from  inherent  nature  or  propensities  of  ani- 
mals for  which  carrier  is  not  liable.    91  n. 
Where  injuiT  is  caused  by  combined  negligence  of  the  carrier  and  the 

nature  and  propensities  of  the  live-stock.     91  n. 
Injuries  in  coupling  cars.   Duty  of  the  company  as  to  cars  and  apparatus. 

168  n. 


^d  by  Google 


683  IITDXZ. 

AlVOTAnOITB— OmMtwd. 
HEOUe£IICe—(;;<miiniud, 

Defective  coupling  appknttu.     Open  and  lolid  dnw-headi.     lU  n. 

Injuriea  Id  coupling  cftr  marked  defective.     164  n. 

Coupling  cars  with  projectiog  loada,     16S  ». 

rellow-Mrranta,     167  n. 

What  iajuriei  are  riaka  aBmimed  by  employee  on  conpling  can.     16?  n. 

Liability  to  car-coupler  for  defect!  la  care  of  connecting  company. . 
Where  a  railroad  ctftnpany  has  been  held  liable.  Where  the  railroad' 
haa  not  been  held  liable.  Effect  of  aUtutes  and  contracts  apcw  com- 
paay'i  liability.    204  «. 

FOJtat  nad  Child. 
Negligence  of  parent.    Queation  for  juir.    4&t  n. 
Where  parent  conducta  child  to  place  of  danger.    4211 «. 
Negligence  of  poor  parenta.    428  n. 

Pasaeogera  on  freight  train.    6  n. 

Alighting  from  moving  train.     60  n. 

Alighting  from  alowly-moving  train  where  companyit  negligesL     61  »,■ 

Alighting  bj  direction  of  the  conductor.     62  n. 

Alighting  against  the  conductar'B  advice.     68  n. 

When  relation  of  paaaenger  exieu.     64  tt. 

lotoxicated  psasenger  entitled  to  due  care.     69  n. 

Intoiication  as  contributory  negligence.     69  n. 

Railroad  company  not  bound  to  carry  intoxicated  paSMngsn.    60  n. 

PasBenger  riding  in  dangerous  place.     72  n. 

Occupying  poaition  by  direction   or    consent  of  conductor.     General 

rule.    Contrary  view.     73  n. 
Engineer  no  authority  to  permit  riding  on  engine.     76  n, 

Pltadioga. 

Injuries  to  animala.     Pleadings.     510  n, 
Pnetiea. 

Injuries  to  animals.    Practice.    SIO  n, 
Pnavmpthn. 

Prima  faeu  case  does  not  takeaway  preiumptioD  of  defendant's  innocenca.- 
680  n. 

Signalt. 

Duly  to  trespassen  as  to  signals.     874  n. 

When  sounding  signals  would  not  have  aveited  injury.    497  n. 
Slander,     See  Libel. 
Statute.     See  AnncAU. 
Statiitoijr  Hegulaihni. 

Tiolations  of  statutory  duty  as  affecting  company's  liabilitiea.    44?  n. 

Municipal  ordinances  regulating  speed  of  trains,     fences,  gates,  etc 
448  Tt. 
Taxation. 


^d  by  Google 


AirVOTATIOVft-amMMMl 
r/tfa. 
Where  railroad  ia  owned  by  one  c<Hnpanj  and  leaaed  by  anotim.    IS?  n. 

Injury  to  person  trsTelliog  on  track  with  license  of  company.     Wtaat- 
amouDts  to  licenM.     873  n. 

Duty  of  railroad  cumpaoy  to  trespauera.     General  rule.     878  n. 
'         Duty  to  trespaMers  as  to  signals.     874  n. 

Drunkenness.     Providentisl  betpleunesi.     Infancy,     874  n. 

Trespassers.     Trains  ruaoinfc  at  nigbt     87B  n.  ' 

Expulsion  of  trespassers.     876  n. 

Cbildren  trespsMing  on  railroad  track.     Degree  of  care  required  of  in- 
road corapany.     416  n. 

Duty  of  engineer  on  discoTerin^  cliild  on  track.    416  ». 

Failure  to  fence  tracks  as  aflectiog  trespassen.    428  n. 

Wanliouavnan. 
Carrier's  liability  for  goods  depodted,     101  a, 
AFPUL. 

Where  it  does  not  appear  from  record  what  witness  would  have  answered' 
to  a  question,  the  sustaining  of  an  objection  presents  no  qneation  on 
appeal.    Cincianati,  etc,  R.  Co.  n.  Jones.    491. 

Appeal  to  district  court  may  be  taken  from  judgment  before  justice  of 
peace  for  want  of  an  appearance,  and  JUBtices'  'Code  of  Eansas  pro- 
rides  merely  an  additional  remedy.  Leavenworth,  etc,  R.  Co.  «. 
Forbes.    532. 


AXBITBATIOir. 

The  Arkaasas  act  providing  for  assessment  of  damages  for  killing  of  stock 
by  arbitration,  and  that  it  either  party  refutes  to  abide  by  the  award 
and  takes  the  case  before  the  courts  and  does  not  recover  more  favor- 
able  judgmeot,  such  persons  shall  be  assessed  for  opponent's  attorney 
fee,  is  unconstitutional.     Bt.  Louis,  etc.,  B.  Co. «.  Williams.     SS&. 

UBAmT  UTD  BATTZBT.    See  Taxn. 


Under  Illinni)  Revenue  Act  requiring  property  to  be  assessed  at  fair  oasb 
value,  assessment  of  railroad  property  by  State  Board  of  Equalization 
exceeding  its  conceded  value  is  valid,  and  fact  that  town  aasesiora 
assessed  other  property  not  assessed  by  State  Board  at  about  one  third 
of  its  cash  value,  thereby  failing  to  perform  their  duty,  is  no  ground 
for  objection.     Illinois,  etc.,  R.  &  Coal  Co.  e.  Stookey.    479. 

niinois  Legislature  has  provided  for  no  appeals  from  valuation  of  railroad 
property  by  State  Board  of  Equalization;  such  valuation  can  only  be 
assailed  for  fraud  or  want  of  jurisdiction.  Illiuoia,  etc.,  R.  &  Coal 
Co.  e.  Btonkey.     479. 

There  is  in  Illinois  no  constitutional  or  statutory  exemption  from  the 
asMBsing  of  railroad  property,  aa  specially  benefited,  for  park  or 
boulevard  purposes.    Chicago,  etc,  R.  Co.  e.  People.    487. 


^d  by  Google 


ABSIDVHZHTS. 
Jiangoee  of  right  of  action  ag&iost  railroad  for  killing  stock  maj,  bj  com- 
pljiag  wicli  stfttutor;  proviBioDs  as  to  notice,  recover  double  d&magei 
on  same  Bhowing  as  origiDal  owner  of  atock.    Ererett  tr.  Cent,  lows 
R.  Co,    fiSO. 

ATTOKITET'S  VEB. 

An  act  of  oaseiabl;  regulatiDg  ntes  and  providing  penalties  for  an  over- 
charge, with  a  rcHsonable  stCornej'a  fee  aod  cost  of  suit,  iocludes  eaid 
attoruej's  fee  as  part  of  the  peoaltj  for  a  violation  of  the  act,  and  is 
not  OD  that  accuunt  objectioaable  as  partial  or  unequal  legieUtion. 
Du«  n.  Beidelmao.     14. 

The  ArkaiiauB  act  providing  for  the  asseaameiit  of  damageB  for  killing  of 
stock  bjarbiiratioD,  and  that  if  either  part;  refuses  to  abide  b;  the  act 
and  takes  the  cose  befiire  the  courts  and  does  not  recover  more  favor- 
able juii^^nieDt,  such  persons  shall  Im  assessed  for  opponent's  attorney 
fee,  ia  uuconsiiiutionaL     St.  Louis,  etc.,  It.  Co,  e.  Williama.     S55. 

3AeGAai. 

A  railroad  coinpai>j  is  not  responsible  for  loss  of  baggage  dropped  by  paa- 

sender  accidentally  out  of  car  window,  though,  being  notified,  it 
refuses  to  stop  short  of  the  usual  station.  Henderson  e.  Louisville, 
etc.,  R.  Co.     05. 

Where  plaintiff  delivered  baggage  to  defendant's  bagga^- master  with  in- 
atructioua  to  ship  the  neat  da;  unless  othervaise  directed,  and  there 
being  no  other  direction  and  consequently  no  shipment,  and  defend- 
ant's regulations  forbade  the  reception  of  baggage  except  for  imme- 
diate sliipment,  and  the  baggage- master  swore  that  he  took  tliis  bag- 
gage for  mere  accommodation  without  regard  as  to  the  instructions 
as  to  shipment,  the  company,  if  liable  at  all,  is  only  liable  as  a  carrier, 
Illinois  Cent.  R.  Co.  e.  Troustine.     09. 

Evidence  of  statements  by  defendaat's  servant  as  to  how  the  fire  occurred 
which  destroyed  plaintiff's  baggsge,  then  in  company's  station,  held 
admissible  as  part  of  the  ret  getta,  IllinoiB  Cent.,  etc.,  R.  Co.*. 
Troustine.     00. 

The  initial  carrier  of  personal  baggage  over  connecting  lines  of  railwny  is 
not  liable  for  injury  to  the  baggage  at  a  point  beyond  the  terminus  of 
its  own  line  unless  it  assumed  such  liability  by  express  agreement, 
or  there  is  some  arrangement  in  the  nature  of  a  partnership  between  it 
and  the  connecting  carrier,  and  a  finding  that  no  such  agreement  is 
shown  will  be  sustained  where  it  appears  that  a  through  ticket  waa 
purchased  in  the  usual  way,  and  that,  although  the  purchaser  of  th« 
ticket  did  not  read  the  stipulation  printed  on  it,  a  stipulation  limitiag 
the  liability  of  the  initial  company  selling  it  to  losses  occurrinK  on  ita 
own  line  was  printed  on  the  ticket.  Cent.  Trust  Co.  e.  Wabadi,  etc, 
R.  Co.     103. 

A  regulation  that  a  company  will  not  be  reaponsible  for  luggage  unless 
fully  and  properly  addressed  with  the  name  and  deatination  of  the 
owner  could  not  be  enforced  under  a  railroad  and  canal  traffic  act 
against  the  passenger,  although  a  season- ticket  holder  under  a  apecial 
contract  will  abide  by  all  the  company's  regulaljona.  Cutler  «,  Morth 
London  R.  Co.     105. 

SAimiTT.    Ssa  Neougkuce;  SliEbpinq-cab. 


^d  by  Google 


BILL  07  LABUre. 

The  eitraordinary  liability  of*  common  carrier  in  the  nature  of  an  express 
company  ceasea  as  an  insurer  on  the  arrival  of  the  goods  at  the  station, 
that  being  the  destination  agreed  upon  in  the  mil  of  lading,  but  is 
responsible  from  that  time  forward  as  a  warehouseraan,  and  liable  tor 
want  of  proper  care  in  delifering  to  a  person  nilhout  authority 
to  receive  said  goods.  Merchants'  Despatch,  etc.,  R.  Co.  c.  Merriam, 
'78. 

Refusal  of  through  rales  and  through  bills  of  lading  from  Opelika  for 
New  Orleans  Dj  railroad  which  gave  them  on  other  commodities  and 
at  other  points  similarly  situated,  the  connecting  line  being  willing  to 
unite  therein,  violates  the  Interstate  Commerce  Act.  Hanrell<(al. 
e.  Columbus,  etc.,  R.  Co.  tt  al.     640. 

BILL  OF  PAKTICULAXB. 

Bill  of  particulars  stating  demand   has  been  made  on  railroad  agent  bf 
owner  to  pay  for  injuries  to  cow  run  into  b;  locomotive  and  car,  con- 
strued to  mean  when  first  attacked,  afcer  judgment  that  such  agent 
'    was  one  on  whom  such  demand  would  be  made  under  Eansaa  Taw. 
Hisaouri  Pac  K  Co,  v.  Morrow.    620, 

BOOKB  An  rATBBa,  PBODirOTIOH  OF.     See  BvtdehOB. 
BXBAOE  OF  FEAGS. 

Claimant  on  real  estate  out  of  posaessiDn  is  liable  in  damages  for  Injur;- 
done  in  obtaining  possession  from  another  claimant  iu  peaceable  pos- 
session by  violent  means  amounting  to  a  breach  of  peace,  without  re- 
E>rd  to  legal  title  or  right  of  possesion.  Denver,  etc.,  R  Co.  e. 
arris.     $99. 

axmasB. 

Where  railroad  maintains  bridge  in  such  condition  that  animals  may  enter 
from  highway,  so  jeopardizing  safety  of  trains  and  animals,  in 
absence  of  showing  it  impractii.able  to  do  otherwise,  road  is  not 
securely  fenced.     Cincinnati,  etc.,  R.  Co.  «.  Jones.    491. 

While  railroad  need  not  construct  fences  or  cattle-pits  where  it  would  in- 
terfere with  employees'  safety  or  with  rights  oi  travelling  public,  yet 
burden  is  on  company  to  show  adoption  of  all  reasonable  precau- 
tions to  keep  animals  off  bridge  abutting  on  highway  constructed  by 
road,  even  though  it  is  partially  in  highway,  or  an  animal  may  have 
been  killed  on  that  part  in  highway  on  ground  appropriated  by  com- 
pany.    Cincinnati,  etc.,  R.  Co.  v.  Jones.    491. 

BVBDBK  OF  PBOOF. 

A  charge  that  a  fact  in  issue  mast  be  proved  to  the  satisfaction  of  the  jury 
by  a  preponderance  of  the  evidence,  held  in  connection  with  other 
inatnictloDB  to  mean  only  that  the  buiden  of  proof  must  be  sustained 
by  evidence  which  the  jnry  deem  to  be  preponderant.  Lindaley  v, 
Chicago,  etc.,  R.  Co.     86. 

If  the  theory  of  gratuitous  bailment  is  relied  on,  gross  negligence  cannot 
be  assumed,  but  must  be  both  averred  and  proven,  and  Tmnce  it  was 
erroneous  to  charge  that  the  burden  of  proof  was  on  defendant  to  show 
that  the  failure  to  return  the  money  after  ii  passed  into  its  possession 
by  reason  of  the  accident  was  because  of  its  gross  negligence.  Hillis 
C.  Chicago,  etc..  It.  Co.     108, 


^d  by  Google 


686  IHDEX. 

1OASEIEB&    Bee  Iktbbstats  Couibbck. 

Oommoa  curien  are  held  to  the  highest  rekaonkble  And  practical  akill  and 
diligence  in  regard  to  machioerj  and  competancj  of  serrants.  Other 
dsngeri  depend  on  the  circumBttince*  and,  in  mauj  cues,  ordinarj 
care  and  diligence  such  as  any  prudent  person  would  eiercise  for  bia 
own  safety,  will  exonerate  from  liability.  In  no  case  must  the  carrier 
expose  the  passenger  to  extra- hazardous  dan^r  that  might  be  dia- 
covered  or  anticipated  by  reasonable  practical  care  and  diligence. 
Chicago,  etc,,  R.  Co.  «.  Pillsbury.     84. 

Under  Section  4  of  the  Interstate  Commerce  Law,  relating  to  the  charges 
for  long  and  short  haul,  when  the  circumstances  and  conditions  are 
diiaimiUr,  there  is  no  prohibition;  where  they  are  similar,  the  pro- 
hibition attaches;  where  there  is  doubt  as  to  the  similarity,  they 
should  be  taken  as  substantially  similar  and  in  favor  of  the  object  of 
the  law,  and  in  that  case,  if  the  result  to  the  carrier  ia  injurious,  relief 
can  be  had  only  through  commisaioner.  Hiasouri,  etc,  R.  Co.  «. 
Texas,  etc.,  R.  Co.     76. 

The  extraordinary  liability  of  a  common  carrier,  in  the  nature  of  an  expreaa 
company,  ceases  as  an  insurer  on  the  arrival  of  the  goods  at  the 
station,  that  being  the  desiinatiou  agreed  upon  in  the  bill  of  lading, 
but  is  responsible  from  that  time  forward  as  a  warehouseman  and 
liable  for  want  of  proper  care  in  delivering  to  a  penon  withont 
authority  to  receive  said  goods.  Herchaoti'  Despatch,  etc.,  R.  Co.  e. 
Merriam.     78. 

An  instruction  that  if  goods  were  delivered  to  defendant's  agent  to  be 
carried  over  its  road  to  a  certain  point  whenever  plaintiff's  saleemas 
ordered  them  to  be  shipped,  and  they  were  burned  before shiument,  it 
was  incumbent  on  defendant  that  it  was  without  fault  as  to  the  burn- 
ing, was  erroneous,  whether  at  a  bailment  for  hire  or  a  gratuitous 
bailment     Illinois  Cent.  R.  Co.  e.  Troustlne.     99. 

"Where  plaintiff  delivered  baggage  to  defendant's  bag^ge- master,  with 
instructions  to  ship  the  next  day  unless  otherwise  directed,  and  there 
being  00  other  direction  and  consequently  no  shipment,  and  defend- 
ant's rpgulaiioos  forbade  the  reception  of  baggage  except  for 
immediate  shipment,  and  the  baggage- master  swore  that  he  took 
this  baggage  for  mere  accommodation  without  regard  as  to  the 
instructions  as  to  shipment,  the  company,  if  liable  at  all,  ie  only 
liable  as  a  carrier.     Illinois  Cent.  B.  Co.  v.  Troustine.     99. 

'CABKIBBB  OF  LITX  STOCK. 

Injunction  to  compel  the  reception  at  stock  yards  of  live  freight  carried 
over  complainant's  road  and  consigned  to  defendant's  yard  was  re- 
fused, it  being  as  a  matter  of  law  unsettled  whether  defendants  are 
sulijpct  to  any  duty  to  receive  such  freight,  and  the  injunction  being 
mandatory  will  not  be  granted  until  final  hearing.  Delaware,  etc.,  R. 
Co.  e.  Central  Stock  Ttird,  etc.,  Co.  82. 
The  absolute  liability  of  a  common  carrier  for  safe  transportation  and  de- 
livery of  property  committed  to  it  for  carriage  is  applicable  to  live- 
stock, though  it  ia  not  an  insurer  against  injuries  from  the  inherent 
nature  of  the  animal,  and  without  fault  of  the  carrier,  and  in  an  action 
for  the  death  of  live-stock  in  transportation  and  under  carrier's  guard, 
it  must  be  shown,  to  relieve  the  latter  of  liability,  that  the  canse  of 
death  was  such  injury  as  resulted  from  the  animal's  nature.  Linda- 
ley  v.  Chicago,  etc.,  R.  Co.  66. 
'The  section  of  the  Georgia  Code  raising  the  presumption  of  a  railroad's 
negligence  in>cases  of  injury  to  persons  and  property,  where  the  evi- 


^d  by  Google 


•OUBIEBS  or  UVZ^nOCE.— Continued. 

deuce  merely  showed  bj  the  ttpDearance  of  the  car  in  which  stock  bad 
been  carried  that  the  traio  haa  not  been  derailed,  aad  no  employee 
was  produced  to  account  for  the  injury  who  had  been  in  charge  of 
the  car,  was  held  to  be  applicable  to  stock  shipments  under  special 
contracts  limiting  liability,  and  the  statutory  presumption  tcsh 
strengthened  by  the  failure  of  the  comj^any  to  produce  material 
witnesses,  and  the  triat  court  properly  exercised  discretion  in  refusing 
to  set  aside  a  verdict  agiunst  tne  company.  Coltunbos,  etc,  R.  Co.  «. 
Kennedy.     99. 

OAIIUE.    See  Ajstmaim. 

CATTLB-OTTABIH.    See  AirauLa. 

OATTLB-PIT.     Bee  Fkkcxb. 


A  load  must  be  fenced  for  the  protection  of  children  as  well  as  animala, 
and  a  charge  that  under  a  statute  a  road  is  only  compelled  to  fence  ita 
way  for  the  prevention  of  injury  to  cattle  and  other  animals  was 
properly  refused,  the  child  being  two  and  one-half  yean  old.  Kxjan 
«.  Chicago,  etc,  B.  Co.     89ft. 

-OOIDIOH  OABBIZU.    See  Cabriers;  PieesxroSM. 

fOKMIBSIOH.    Bee  Railboad  CoiatieaoiatBa. 

OOITQSEM.    See  CoKBTTTcnoMAii  Law. 


Evidence  of  a  shipper's  understanding  of  a  contract  of  shipment  of  stock 
with  the  first  of  two  connecting  carriers,  and  that  the  contract 
thus  understood  had  not  been  peru>rmed  by  such  carrier,  is  immaterial 
in  an  action  for  injuries  to  the  Mock  received  on  the  line  of  the 
second  carrier,  with  whom  the  shipper's  agents  had  made  another 
contract,  and  error  in  its  admission  is  harmliBSS.  Columbus,  etc,  R. 
Co. «.  Kennedy.     63. 

'COSBOLIOATIOH. 

Consolidation  of  several  corporstions  creates  new  corporation,  the  rights 
of  which  depend  on  laws  governing  ccrporations  at  time  of  consoli- 
dation, and  on  act  authorizing  it.  Chanotte,  etc.,  R.  Co.  «.  Qlbbes. 
484. 

WITSTITmOTAL  LAW.    See  AsBrraATioHi  Fsllow-bkbtahts. 

South  Carolina  statute  giving  State  officer  supervision  of  all  railroads  in 
State  and  imposing  payment  of  his  salary  and  expenses  on  them,  is 
valid  under  various  statutory  and  constitutional  provisions  as  an 
amendment  of  railroad's  charter,  and  is  not  invalid,  as  contravening 
constitutional  provision  that  taxation  shall  be  uniform.  Charlotte, 
etc.,  R.  Co.  e.  Oibbes.  464. 
Oooatttntioiud  pooTisioa  requiring  taction  of  property  to  be  according 


^dbvGoogle 


eOVBTITUTIOITAI.  LKW—<^7itimud. 

to  iu  value  does  not  limit  power  of  State  ■  eto  taxation  of  propertj,  and 
a  tax  uu  railroad  companj  according  to  their  income  is  valid.  Ctiar- 
lotle,  ere,  R.  Co.  e.  Gibbes.     464. 

Th«  Arkansaa  Act  providing  rtiat  railroad  taanda  caught  diafigunoff 
carcass  killed  on  railroaavichout  first  notifying  persons  whose  dutj 
it  was  to  preserve  marks  or  value  of  stock,  shall  be  guiltj  of  mia- 
demeanor  and  fined,  is  not  uDCODBtitutiooal,  arising  from  police  power, 
and  not  being  class  legislation  or  of  unequal  opetation,  Banoou  c. 
State.     553. 

A,  medical  examiner  and  an  applicant  both  claiining  rights  under  a  statute 
requiring  an  examination,  are  neither  of  them  in  a  position  to  que*- 
tion  or  impeach  its  constilutioDality.     Bsldwin  v.  Kouns.     347. 

An  act  of  Bssemblj  regulating  rates  and  providing  penalties  for  an  orer- 
charge,  with  a  reasonable  attorney's  fee  and  coals  of  suit,  includes 
said  attorney's  fee  as  part  of  the  penalty  for  a  violation  of  the  act,  and 
is  not  on  that  account  objectionable  as  partial  or  unequal  legislation. 
Dow  V.  Beidelroui.     14. 

All  grants  of  privileges  by  the  State  ar«  made  subject  to  the  right  of  thft 
State  to  prescribe  the  conditions  upon  which  the  privileges  shall  be 
enjoyed,  whether  such  power  be  expressly  reserved  or  not.  Delaware, 
etc.,  R.  Co.  E.  Cent.  Stockyard  Co.     83. 

North  Carolina  statute  providing  for  indictment  of  certain  ofBcers  when 
live-stock  is  killed  bj  railroad  in  certain  counties,  and  that  such  kill- 
ing having  been  proved,  shall  be  prima  fade  evidence  of  negligence 
in  any  indictment,  is  unconstitutional;  not  being  uniform,  and  sub- 
verting presumption  of  innocence.     Stale  v.  Divjne.     574. 

Ftciflc  Railroad  Commission  is  not  a  judicial  body,  and  possesses  no  ju- 
dicial powers  under  act  creating  it,  and  can  determine  no  rights  of 
government  or  at  corporations  whose  aftain  it  ia  appointed  to  investi- 
gate.    In  w  Pac.  R.  Com.     698. 

Oengress  cannot  compel  production  of  private  books  and  papers  of  citi- 
zens for  inspection  except  in  course  of  judicial  proceedings  or  in  suita 
instituted  for  that  purpose,  and  then  only  on  averments  that  its  rights 
in  some  way  depend  on  evidence  therein  contained.  In  ra  Pac.  R. 
Com.     SB8. 

OooTts  are  open  to  the  United  States  as  to  private  parties  to  secure  protec- 
tion for  legal  rights  and  interests  by  regular  proceedings.  Jn  rt  Pac 
R.  Com.    898. 

Judicial  department  ia  independent  of  legislatire  in  Federal  Government, 
and  Congress  cannot  make  courts  instruments  for  mere  legislative  in- 
vestigations.    In  re  Pac.  R.  Com.     598. 

Power  of  Federal  courts  to  authorize  taking  of  depositions  on  letten  ro- 
gatory in  courts  of  foreign  jurisdiction  exists  by  international  comity, 
but  no  comity  of  any  kind  can  be  invoked  by  the  mere  Congressional 
investigating  committee.     In  re  Pac,  R.  Com.     598. 

Central  Pscific  Railroad  Company  is  a  State  corporation,  and  not  subject 
to  Federal  control  any  further  thsn  natural  persons  similarly  situated 
would  be.     In  re  Pac.  R.  Com.     5B8. 

Central  Pacific  Railroad  Company  is  owner  of  lands  and  bonds  granted  by 
government,  having  complied  with  act  making  grant,  subject  to  lien 
of  government  to  secure  advances,  in  same  way  and  to  same  extent  as 
natural  persons  in  like  situation.     In  re  Psc.  R.  Com.     fifiS. 

United  States  as  creditor  cannot  institute  compulEorj  investigation  into- 
private  affairs  of  Central  Pacific  Railroad  Company,  nor  require 
exhibmon  of  books  and  papers  for  inspection  in  any  other  way  or 


^d  by  Google 


iin>BX.  689 

onrfTimiovAi  law— o»mttmua 

to  ftny  greater  extent  than  in  case  of  private  creditoTB  and  debtora. 
In  re  Pac.  R  Com.  S96. 
VrnteA  Btuea  as  creditor  has  same  remed  j  aa  private  creditor,  and  no  other, 
to  compel  pajKentof  moneyB  due  from  Central  Pacific  Railroad  Com- 
panj  or  to  preveat  latter  from  wasting  assets  before  debt  is  matured, 
and  that  remedy,  if  any,  must  be  by  re^lar  judicial  proceedingB ;  and 
Congress  has  no  power  to  inatitnte  legislative  inquisitionB  into  affain 
of  company  to  aacertaia  what  it  has  done  or  is  doing  with  its  money. 
In  re  Pac.  R.  Com.     508. 


Angulation  that  a  company  will  not  be  recpODBfble  for  Inggage  unleaa 
fally  and  properly  addressed  with  the  name  and  destination  of  the 
owner  could  not  be  enforced,  in  a  railroad  and  canal  traffic  act,  against 
the  passenger,  alttiougb  a  season-tioket  holder  under  a  speciuf  con- 
tract will  abide  by  all  the  company's  regulations.  Cutler  e.  Nortb 
London  R.  Co.     105. 

OMTUIUTOET   VXSII6EB0I.     See  Ahucalb  ;  CoirpLine  Cabs  ;  Nbsu- 
axxox  ;  TRxarAsaxKB. 

Wbere  the  plaintifiTs  father,  a  fireman,  was  killed  by  his  engine  bdng 
thrown  from  the  track,  a  recent  rain  having  undermined  the  embank- 
Blent,  and  it  appeared  that  he  was  warned  against  danger  from  water 
at  that  place  but  over  which  a  long  train  had  passed  shortly  before^ 
it  was  held  tiiat  the  giving  way  of  the  track  viaa  prima  facie  evidence 
of  negligence  in  its  construction,  and  tbe  evidence  as  to  the  rain  be- 
ing extraordinary  being  conflicting,  the  case  was  properly  sent  to  th« 
jury.  And  the  warning  was  only  evidence  of  contributory  negligenc« 
for  the  jury.     Stober  e.  Bt.  Louis,  etc.,  R.  Co.     339. 

A  foreman  or  yard-master  in  charge  of  switching  cars  and  making  up  tr^na, 
and  knowing  a  certain  frog  to  be  dangerous  to  persons  switching  cars, 
takes  the  risk  as  incident  to  the  employment,  and  tbe  application  to 
an  employee  to  improve  the  track  at-  Chat  point,  and  the  answer  that 
be  could  not  do  it  without  orders,  with  a  conditional  promise  that  ha , 
would  do  it  if  he  got  time,  will  not  bind  the  company  nor  relieve  the 
foreman  from  the  risk,  there  being  no  connection  iMtween  sach  pronk- 
ise  sad  his  continuance  in  the  business.  Wilaon  e.  Winona,  etc,  B. 
Co.  344. 
'  A  train- des{Mtcher  ordering  the  movements  of  traini  ia  a  company's  rep- 
resentative ;  and  Plough  a  rule  required  a  specific  order  to  oe  m  wnt- 
ing,  when  he  gives  orders  verbally  to  me^  an  emergency  it  is  tbe 
company  speaking,  and  it  is  not  negligence  on  the  part  of  an  em- 
ployee injured  in  an  accident  ciiused  by  such  trun-despatcher's  negli- 
gence, and  who  was  subject  to  his  ordera,  to  act  on  the  verbal  order. 
Smith  t.  Wabash,  etc.,  H.  Co.     881. 

Where  an  employee  of  a  car-building  company,  contrair  to  employer's  di- 
rection, crawled  under  cars  sent  out  as  completea  and  standing  on 
defendant's  tracks  for  transportation,  and  after  the  train-conductor 
bad  examined  tbe  caia  to  see  if  any  person  was  under  or  about  them 
and,  seeing  no  one,  started  the  train  and  killed  the  employee,  held,  no 
recovery  could  be  had  on  the  ground  of  contributory  negligence,  end 
in  absence  of  evidence  it  ia  not  for  tbe  jury  to  determine  whether 
there  was  a  custom  foi  the  car  company's  employees  to  so  go  under 


^d  by  Google 


OOVIKIBirTOBT  HZSLiaEVCB— Omimutfd. 

can  once  tarned  oat  aa  compieted.     Coop*  P.  Lake  Shore,  etc,  R,  Co. 
879. 

Where  facta  ue  andiBputed  and  lead  to  but  one  iaference,  the  qnestioa  of 
negligence  ia  one  of  law  to  be  deterroined  b;  the  coart ;  and  one  at- 
tempting to  croM  between  care  which  be  knows  or  might  know  in 
like];  to  move  is  negligent,  and  cannot  recover  for  iniuriea  recnved 
in  Buch  attempt,  and,  the  danger  being  obvioua,  the  directions  of  a 
brakemaa  are  no  justification  for  such  attempt.  Idke  Shore,  etc,  B. 
Co.  «.  Pinchin.     438. 

One  who  purchasea  a  ticket,  but  bj  mistake  takes  the  wrong  trsin,  ia 
nevertneless  a  passenger  for  whoee  protection  a  high  degree  of  cm 
mHBt  be  used;  and  obedience  bj  a  passenger  to  conductor's  directioDS 
within  the  scope  of  his  authttrity,  which  do  not  expose  the  paaaengtr 
to  an  apparent  or  known  danger  which  a  prudent  man  would  not 
Incur,  is  not  contributory  negligence:  but  Mcb  directions  cannot  be 
relied  upon  where  the;  expose  him  to  a  risk  that  a  prudent  man 
would  not  saaume.     Cincinnati,  etc,  R.  Co.  e.  Carper.     S6. 

A  conductor  has  no  authority  to  inatruct  s  ticket-holder,  by  mistake  on  a 
wrong  train,  aa  to  what  road  he  ahould  take  to  get  on  the  prapw 
train;  and  where  the  passenger,  taking  the  adrice,  leaves  the  trun 
and  proceeds  in  a  contrary  direction,  the  company  ia  not  reaponaible 
for  hia  accidental  killing  by  a  paaaing  trun  while  on  the  track  in  pni- 
Buance  of  his  inatructiona.    Cincinnati,  etc.,  R.  Co.  e.'  Carper.     86. 

Under  an  alle^tion  that  plaintiff  received  her  injnry  by  jumping  froa 
the  train  in  motion,  but  was  guilty  of  no  contribntoi;  n^ligence,  she 
can  prove  that  she  jumped  with  the  consent  of  the  penon  in  charge, 
which  wonld  relieve  her  of  liability  under  the  Iowa  statute  making  it 
a  misdemeanor  to  get  off  the  car  in  motion  without  conaeat  of  the 
peraon  in  charge.    Raben  e.  Cent  Iowa  R.  Co.    4C. 

Independent  of  ataCute,  jumping  from  a  train  in  motion  ia  not  alwaja 
negligence,  but  it  ia  a  question  of  fact  for  the  jury  to  determine  troa 
all  the  circumBtancea.    Raben  «.  Cent.  Iowa  R.  Co.    45. 

It  ia  the  duty  of  the  court,  on  defendant'a  request,  to  instruct  that  if  the 
juiT  should  find  that  pluntiS  was  at  all  under  the  influence  of  liquor, 
and  that  thst  fact  contributed  to  produce  the  injury,  he  could  not  re- 
cover damages  sustained  while  getting  off  the  trun  from  the  sudden 
atarting,  it  appearing  that  he  had  been  drinking.  Btrand  e.  Chicago, 
ete.,  R,  Co.    M. 

Xmployeea  of  a  railroad  are  only  bound  to  such  care  towards  a  drunken 
man  as  towards  a  sober  one,  if  ignorant  of  his  condition;  aad  if 
pluntiff's  intoxication  is  such  aa  to  interfere  at  all  with  his  diligence 
or  care  in  getting  off  the  trun,  and  this  effect,  however  alight,  con- 
tributed to  the  injury,  he  cannot  recover.  Strando.  Chicago,  etc,  R. 
Co.     S4. 

Where  the  person  ia  entitled  to  transportation,  and  the  only  means  were 
the  top  of  a  stock-car  or' the  engine,  and  by  engineer's  direction  he 
got  on  the  foot-board  of  the  engine,  an  instruction  that  common 
prudence  dictated  that  he  should  put  himself  in  the  aafest  place,  and 
if  the  engine  was  not  aa  safe  aa  the  car  he  waa  guilty  of  negligence, 
waa  properly  refused,  as  it  ignored  the  servanta'  directions,  and  their 
negligence  in  the  management  ott  the  engine.  Lake  Shore,  etc,  R, 
Co.  O.Brown.     81. 

Where  an  ordinance  required  backing  trains  to  have  a  watclunan  on  the 
tear  car,  it  is  not  violated  when  the  watchman  fails  to  give  warning 
to  a  person  who  can  see  clearly  for  aome  distance,  and  who,  the  watch- 


ed by  GoOglc 


WVTBIBirTOST  KiaLllJSaCB-Gmtmwd. 

man  testified,  looked  directly  at  the  bnckiag  tndn  when  eight  or  ten 
feet  from  it;  there  was  do  negligence  od  tbe  part  of  the  aofendaot; 
tbe  persoD  was  guilty  of  cODtributory  negligence  in  lurlDg  been 
killed,  and  there  could  be  no  recovery  for  his  death.  CinciDnati, 
etc.,  R.  Co.  v.  Long.     188. 

Where  a  railroad  regulation  forbade  the  conpling  of  cars  in  motion  by 
^oing  between  the  care,  and  required  a  atick  to  be  used  yihea  possible, 
it  is  contributory  negligence  for  a  brakeman  knowing  the  rules  to 
Stand  before  a  stationary  car,  and,  observing  that  an  approaching  car 
has  a  three-link  coupling,  to  attempt  to  couple  by  hand;  and  a  brake- 
man  whoss  duty  it  is  to  couple  cars  is  presumed  to  have  assumed  all 
risk  attendant  on  the  use  of  the  three-link  coupling  as  an  ordinary 
peril  of  service,  such  coupling  being  very  largely  in  use  on  freight 
trains.    Darracutts  c.  Chesapeake,  etc.,  R.  Co.     167. 

Where,  according  to  custom,  a  lumber  firm  loaded  a  car  for  a  nulroad,  and 
after  tbe  car  was  loaded  the  lumber  projected  over  the  end;  the  car 
was  ordered  to  be  put  immediately  to  the  train,  and,  it  being  night, 
the  brakeman  only  aaw  the  projecting  lumber  by  the  light  of  hie  lan- 
tern, and  in  making  the  coupling  he  was  caught  between  the  lumber 
and  the  locomotive  tender  and  killed, — held,  that  he  had  a  right  to 
presume  the  car  was  properly  loaded,  and  was  not  guilty  of  contribu- 
tory negligence  in  not  closely  examining  it,  and  the  loading  was  the 
act  of  the  company,  whether  done  by  its  employees  or  not,  and  it  was 
its  duty  to  see  that  it  was  properly  done.  Haugh  v.  Cliicago,  etc.,  R. 
Co.     178. 

Contributory  negligence  must  be  affirmatively  proved,  and  an  exchange  by 
the  injured  man  of  bis  place  with  a  fellow-brakeman  without  the  con- 
ductor's orders  will  not  establish  it,  though  he  probably  would  not 
have  been  injured  had  he  remained  where  he  was  assigned,  it  not  ap- 
pearing that  the  place  assumed  was  more  dangeroos  than  the  one 
vacated.    Little  Rock,  etc.,  R.  Co.  e.  Eubanks.     176. 

The  fact  that  plaintifl  disobeyed  a  rule  requiring  the  use  of  the  stick  in 
coupling  did  not  prevent  him  from  recovery  when  it  appeared  that 
the  injury  would  have  been  received  even  if  the  stick  haa  been  used. 
Reed  «.  Burlington,  etc.,  R.  Co.     100. 

ft  is  contributory  negligence  for  an  employee  of  the  rulroad  shortly 
after  he  had  uncoupled  a  car  and  had  an  opportunity  for  observ- 
ing any  defects  in  the  coupling  apparatus  and  reporting  the  same,  as 
was  his  duty,  to  attempt  to  couple  the  same  car  to  another  without 
observing  the  disparity  in  the  height  of  tbe  draw-beads  and  using  a 
crooked  instead  ol  a  straight  link,  and  the  company  will  not  be  liable 
(or  any  injury  received  thereby.     Norfolk,  etc.,  R.  Co.  o.  Emmert. 


It  ii  the  province  of  the  trial  court  to  determine  whether  a  prima  facU 
case  of  negligence  has  been  made  out  before  submitting  the  question 
to  the  jury,  and  until  such  case  is  made  out  there  can  be  no  question 


of  plamti^B  contributory  negligence.  Simms  e.  South  Carolina  R. 
Co.     100. 

Under  admisdons  that  railroad  was  not  fenced  in  township  where  bogs 
were  permitted  to  run  at  large,  and  even  if  it  were  fenced  sa  desig- 
nated by  law,  hogs  would  not  have  been  prevented  from  goiug  on 
the  right  of  way,  it  is  error  to  instruct  finding  for  plaintiS  unless 
found  guilty  of  contributory  negligence,  and  evidence  of  fencing  of 
railroad  is  immaterial.     Leavenworth,  etc.,  R.  Co.  e.  Forbes.    023. 

Where  jury  found  injury  caused  by  company's  negligence  plaintifl  should 


^dbvGoo^lc 


MVnUBTTTOBT  KSaUOZStm—OonUrmei. 

have  recovered  unlera  guiltj  of  contribntory  nesUgenee,  and  kn|dBg 
bag»  in  iDBecure  iaclosnre  and  thereby  penutting  them  to  erapa 
upon  road  would  not  be  «ach  oegligence  u  to  prerent  racoTer;. 
I^aveDworth,  etc,,  H.  Co.  e.  Porbas.    G22.  * 

lADd-owner  hsbitaftllj  turning  horses  on  adjoining  track  thnnigh  gate 
maintained  for  hii  accommodBitioa  as  convenieot  way  for  them  to  go 
'  to  pasture  cannot  claim  compensation  for  injuries  to  which  he  TOhin- 
tanly  expoaed  thera.     Ft.  Wayne,  etc.,  B.  Oo.  v.  Woodward.     S46. 


butruotion  that  if  jury  finds  that  cow  was  rtrnck  and  killed  by  defend- 
ant's engine  plaintiff  cannot  rtcover,  plaintiff  claiming  that  if  ani- 
mal'was  on  crossing  it  was  becante  □(  defendant's  neglect  to  fence 
track,  is  erroneous  as  excluding  all  idea  that  defendant's  neeirgenoa 
might  haTo  occasioned  cow's  Ming  on  highway.  Jebb  «.  Chicago^ 
etc.,  K  Co.     C32. 

Vbere  statute  forbade  running  of  horses  at  laige,  and  horwB  left  loose  in 
enclosed  lot  In  which  there  was  an  aperture  in  side  next  highway 
open,  except  for  ri&gle  loose  bar,  which  horses  pushed  aude  and  then 
escaped  on  highway,  and  on  railroad  crossing  were  killed,  owing,  ■■ 
alleged,  to  defective  cattle-guard,  question  whether  turning  hones 
loose  under  circumstances  is  contributory  negligenoe,  or  equivalent  to 
allowing  them  to  remain  at  large,  within  meaning  of  statute,  if  tat 
jury.     Timminso.  Chicago,  et«.,  R.  Co.     641. 

Bole  that  those  in  charge  of  trains  need  not  watch  to  ascertain  if  an  ani- 
mal trespassing  on  track  without  company's  faUlt  is  there,  and  that 
their  duty  arises  only  on  discovery,  applies  to  case  of  animal  wrong- 
fully on  highway  at  railroad  crossing.  Palmer  e.  Hortbern  Pac  B. 
Co.     544. 

Owner  can  recover  for  killing  of  horse,  escaped  from  his  control,  having 
used  reasonable  diligence  to  recapture;  killing  having  been  bj  pasmng 
train  at  ndlroad  crossing  running  faster  than  permitted  by  the  New 
Hampshire  statute;  and  company's  negligence  may  be  inferred  by 
rate  of  speed.     Clark  e.  Boston,  etc,  B.  Co.     648. 

ootmore  gabb. 

Where  thera  is  no  evidence  tending  to  show  -that  the  block  between  the 
main  and  guard  rail  was  Improperly  or  dangerously  placed,  it  ia  erro- 
neous to  submit  to  the  jury  whether  the  block  was  ao  placed  as  to  be 
danmrous  to  brakemen  coupling  cars  in  the  exercise  of  ordinary  care. 
Griffith  V.  Burlington,  etc.,  R.  Co.     S27. 

Where  a  brakeman  signalled  cars  coming  towards  him  to  stop,  but  the  sig- 
nal was  not  obeyed ;  and  although  be  thought  the  can  etill  moving 
too  fast,  stepped  in  between  them  and  was  injured,  an  instruction 
that  if  the  jury  believed  the  signal  made  in  proper  time  for  the  train 
to  stop  or  come  to  a  safe  speed  for  coupling,  and  that  from  the  negli- 
gence in  the  control  of  the  train  the  cars  were  run  so  violently  as  to 
confuse  the  plaintiff,  etc.,  is  not  erroneou^  and  the  plaintiff  having 
assumed  the  risks  of  employment,  and  being  injured  by  such  risks 
through  his  own  negligence,  the  company  is  not  mponalble.  Nor- 
folk, etc.,  R.  Oo.  e.  Oottrell.    S8Q. 


^dbvGooglc 


.  OOirPLUra  CJkXa-Qmtinuei. 

Where  a  brakeman  was  injiired  by  the  brenking  and  cnlligion  of  two 
Bectious  of  a  long  train  on  a  heavy  dciwn  grude,  the  train  being  a 
double-header,  it  was  Md,  that  takinfr  serriitc  with  a  cnm|)aDy  using  a 
doul>le- header  waa  a  risk  of  the  businees;  and  the  cnnipan;  having 
had  notice  that  the  brakes  irere  defective  by  which  pluntiS  was  ]irc- 
veiitei!  from  stopping  the  section  of  the  train  nn  which  he  wbr.  or  that 
if  the  brakes  had  acted  they  would  have  stot>p<'d  the  car.  there  waa 
nothing  to  go  to  the  jury  as  to  the  brakes,  and  the  principle  thst  the 
master  mav  conduct  hia  buEineaa  in  his  own  way  applies  to  coupling 
just  as  to  double-heading  trains.     Hawk  v.  Pennsylvania  It.  Co.     208. 

An  employee  will  be  held  to  aasume  the  risks  incident  to  his  duties  Ihinigh 
outside  of  hia  regular  employment,  and  cannot  recover  if  the  injury  is 
the  result  of  want  of  due  care  on  his  part,  and  is  under  ihi;  sHme 
obligstiiin  to  provide  for  his  own  safety  in  dangers  of  which  he  has  tin- 
tice  or  might  discover  by  use  of  ordinary  care  as  a  master  is  to  prnviilc 
it  for  him.  This  waa  held  where  a  machinist  in  company's  car  phn)i» 
by  direction  of  the  master  mechanic  undertook  to  ciuple  some  cars 
and  was  injured.     Wnrmell  e.  Maine  Cent.  R.  Co.     278. 

Wbere  a  brakeman  about  to  couple  cars  stumbled  on  a  stick  lying  on  the 
track  and  was  injured,  knowing  that  the  wood  was  scattered  along 
the  track  in  some  places,  hut  not  having  noticed  any  at  the  place 
where  he  waa  injured,  hM,  that  whether  plaintiff  had  such  knowl- 
edge of  the  company's  neglect  that  he  must  be  presumed  to  have 
assumed  the  risk,  was  for  the  jury,  and  the  burden  of  proving  his 
knowledge  before  the  accident  was  on  defendant.  HuUehsn  e.  ureen 
Bny,  etc.,  R.  Co.     832. 

OTBTOM. 

Wbere  an  employee  of  a  car-building  company,  contrary  to  employer's  di- 
rection, crawled  under  cars  seut  out  as  completed  and  standing  on  de- 
fendant'a  tracks  for  transportation;  and  after  the  train  conductor  had 
examined  the  cars  to  see  if  any  person  was  under  or  about  them,  and 
seeing  no  one,  started  the  train  and  killed  the  employee, — held,  no 
rooovery  could  be  had  on  the  ground  of  contributory  negligence,  and 
in  absence  of  evidence  it  is  not  for  the  jury  to  determine  whether 
there  waa  a  custom  for  the  car  company's  employees  to  so  go  under 
cars  once  turned  out  as  completed.  Coppsv.  Lake  Shore,  etc..  It.  Co. 
879. 


Instruction  that  if  cow  escaped  through  defective  fence  which  should 
have  been  repaired  by  defendant,  such  defect  being  open  and  having 
existed  for  some  time,  plaintiff  could  recover  for  killing  and  interest 
on  value  of  animal,  is  proper;  as  also  to  inform  jury  that  cow's  hnving 
wandered  on  public  highway  when  struck,  is  immaterial.  Jvbb  v. 
Chicago,  etc.,  R.  Co.  582. 
f  Assignee  of  right  of  action  against  railroad  for  killing  stock,  may,  by 
complying  with  statutory  provisions  as  to  notice,  recover  double  dam- 
ages on  same  showing  as  original  owner  of  stock.  Everett  s.  Cent. 
Iowa  R.  Co.     OSO. 

To  recover  for  injuries  caused  by  gun-shot  wounds  inflicted  by  corpora- 
tion's eervanu,  evidence  of  loss  of  power  to  have  offspring  resulting 
from  nature  of  wounds  may  be  considered  by  jury,  though  not  speci- 


^dbvGooglc 


fled  in  declantion  u  rasolt  of  wonnd.  Denrer,  etc,  B,  Co.  e.  Har- 
ris. B99. 
In  BotioD  aounst  corpor^tioD  for  duna^  for  iojariBs  inflicted  bjaemntc 
Id  forcible  seisore  of  rmilroftd,  panitive  dunagei  within  sum  clMnwd 
in  declaration  mftj  be  ftwirded  i(  jury  found  defejidant's  officers  and 
seTvantB,  in  illegal  msuult  complained  of,  employed  force  with  bad 
intent  and  for  unlawful  purpose,  disturbing  the  peace  and  endanger- 
ing life.     Dennr,  etc,  R.  Co.  e.  Barris.    GSS. 

SAKAOEa  BT  CAXXIEKS  07  LTTX  BTOCX. 

The  absolute  liability  of  a  common  carrier  for  safe  transportation  and  de- 
livery of  property  committed  to  it  for  carria^  is  applicable  to  live 
stock,  thougo  it  u  not  an  insurer  againet  injuriet  from  the  inherent 
nature  of  the  animal,  and  without  fault  of  the  carrier;  and  in  an  action 
for  the  death  of  lire  stock  in  transportation  and  under  carrier's  guard 
it  must  be  shown,  to  relieve  the  Utter  of  liability,  that  the  cauae  of 
death  was  such  injury  as  resulted  from  the  animal's  nature.  Liodsley 
B.  Chicago,  etc.,  R.  Co.     86. 

It  appearing  that  a  car  load  of  stock  in  transit  is  suffering  greatly,  proba- 
bly from  heat,  it  was  not  objectionable  to  ask  an  expert  witueea  wliat 
course  the  carrier  might  properly  pursue  for  their  relief.  Lindsley  «. 
Chicago,  etc.,  R.  Co.     BB. 

Eridence  that  the  agent  of  defendant  company,  on  receipt  of  the  injuied 
stock,  urged  plaintiff  to  take  and  do  the  beet  he  could  with  them, 
saying  that  the  company  would  make  it  all  right,  ia  relevant  in  an 
''  action    against  the  company  for  damages  as  part  of  the  ra*  t»*tm, 

whether  such  promise  be  landing  on  d^endant  or  not.  Oolumbni, 
etc,  R.  Go.  e.  Kennedy.     92. 

DAIf  AOXB  BT  OAUUBBB  07  PABSEKOEBB. 

The  loss  of  a  parent's  care  in  education,  muntenance,  etc.,  of  a  child, 
have  an  appreciable  value  which  the  jury  may  consider;  and  though 
it  is  not  shown  what  the  earnings  of  the  father  were  at  the  time  of 
his  death,  the  jury  is  not  coaflned  to  nominal  damages,  nor  can  they 
award  vindictive  or  exemplary  damages,  there  being  no  proof  of 
malicious  or  gross  negligence  or  of  aggravating  circumstancee;  and 
an  instruction  inviting  the  consideration  of  such  circumstances  is  erro- 
neous.   Stoher  c.  Bt.  Louis,  etc.,  R.  Co.     239. 

In  on  action  for  personal  injuries  the  court  may  instruct  that  plaintiS's 
expenses  for  medical  treatment  are  a  proper  element  of  damage,  and 
a  general  exception  taken  to  such  instruction  as  a  whole  will  not  be 
sustained  where  it  is  merely  cliumed  on  appeal  that  there  was  no  evi- 
dence  that  he  expended  anything  for  such  treatment  Hullehan  v. 
Green  Bay,  etc.,  R.  Co.     832. 

Estimation  of  the  injury  and  assessment  of  damages  are  for  the  jury,  and 
should  not  be  interfered  with  by  the  court  unless  there  has  been  a 
manifest  abuse;  and  a  vettlict  of  (6000  for  negligently  causing  the 
death  of  a  yonng  and  healthy  engineer  whose  expectation  of  life  was 
thirty-one  years  is  not  such  abuse,  nor  does  an  expression  by  the  tri^ 
court  of  disapproval  of  a  verdict  as  being  excessive  and  a  refusal  to- 
set  it  aside  show  a  reason  why  the  supreme  court  should  grant  a 
new  trial.     Tennessee,  etc,  R  Co.  e.  Roddy.    840. 

Where  plaintiff  standing  on  a  side  track  between  two  can  talking  to 
some  one  in  the  cars  was  injured  by  being  caught  between  tbe  two 


^dbyGoOglc 


MKABXS  BT  CAKEISXS  07  PAasBveiBS— OmtfrnMl 

can  caiued  by  one  of  the  cars  being  get  is  motion  b;  a  backing 
engine,  it  wu  htld.  that  the  Alabama  Code  providing  for  puDitive 
damages  in  case  oi  death  caused  b;  another's  wrongful  act  does  not 
apply,  nor  did  the  rule  of  law  requirio^  trains  backing  to  have  a 
waU^roan  on  the  lookout;  but  the  case  is  governed  by  the  Alabama 
'  Code  requiriDff  a  railroad  putting  a  train  in  motion  to  blow  a  whistle 
«r  ring  its  bell  continuausly,  ana  the  burden  of  proof  is  on  the  com- 
pany to  show  whether  it  so  acted,  and  plaintiffs  action  in  so  placing 
nerself  where  she  did  was  such  contributor;  negligence  as  to  defeat 
recovery.    E.  Tennessee,  etc.,  R.  Co.  e.  King.     89G. 

The  ^legation  in  a  declaration  that  plainCifF  "remained  from  that  time  in  & 
Bick,  sore,  wounded,  bruised,  and  injured  condition,  bo  that  he  ii 
maimed  for  Hfe,"sufflcietitly  sets  out  that  plaintiff  sought  damsges  for 
sickness  and  disorder  and  attendant  eipenses,  end  evidence  that  after 
the  accident  he  was  subject  to  convalsioai,  fits,  etc.,  and  was  injured 
as  to  his  mind,  was  properly  admitted.  Eeyser  v.  Chicago,  etc.,  R. 
Co.     899. 

Where  a  loss  of  time  is  claimed  as  an  item  of  damages,  the  value  of  the 
time  lost,  or  from  which  an  estimate  may  be  made,  must  be  shown,  or 
only  nominal  damages  can  be  given;  and  before  damages  for  future 
pecuniary  loss'from  inability  to  esm  a  livelihood  can  be  awarded,  there 
must  be  proof  of  plaintiff's  circumstances,  condition  in  life,  wage- 
earning  powers,  skill,  and  capacity.  Stall  e.  Qrand  Street,  etc.,  R. 
Co.  31. 
I  Iffkere  a  passenger  is  injured  by  the  invasion  of  a  mob  on  the  train  in 
■earch  of  non-union  laborers,  the  train  having  voluntarily  been 
stopped  at  a  certain  place,  not  a  regular  station,  in  the  midst  of  the 
nm,  and  the  same  laborers  having  been  assailed  previously  in  another 
car,  the  railroad  is  liable,  and  the  offensive  persons  should  have  been 
placed  at  least  in  a  separate  car,  notwithstanding  the  officers  of  the 
road  had  no  knowledge  of  the  proposed  attack.  Chicago,  etc.,  S.  Co. 
»,  Pillsbury.    34. 

Where  there  was  some  evidence  to  show  that  plaintiff  would  in  future 
suffer  pain  sod  inconvenience  from  the  injury,  not  being  fully  recov- 
ered at  the  time  of  trial,  and  the  physicians  being  unable  to  de- 
termine whether  the  injury  would  be  permanent,  an  iostruction  that 
if  the  jury  find  it  so  they  should  consider  such  inconvenience  and  pain 
as  might  be  reasonably  certain  to  result  in  the  future  is  not  erione- 
ons.     Raben  e.  Cent,  {owa  R.  Co.    4G. 

Wbere  a  Degress  was  ejected  from  a  train  for  attempting  to  ride  in  a  car 
set  apart  for  the  white  people,  and  refusing  to  go  into  a  car  open  to 
everybody,  and  it  appearing  that  the  cars  were  alike  in  every  respect, 
.1  it  was'  Jt^  that  as  her  purpose  evidently  was  to  harass  defendant, 

and  not  In  good  failb,  she  could  not  recover.     Chesapeake,  etc.,  R. 
e.  WelU.     111. 

Where  cars  are  set  apart  for  men  and  women,  and  the  pasaenger  refuses  to 

go  into  the  men's  car  on  theground  that  there  is  smoking  there,  and, 

'  there  being  no  Beats  in  tbe  women's  car,  refused  to  give  up  his  seat, 

was  ejected  from  the  train,  he  cannot  recover.     Memphis,  etc.,  R 

Co.  e.  Benson.     113. 

Plaintiff  purchased  a  ticket  to  8.  from  defendant's  station  agent,  and  by  his 
direction  entered  a  train  which  did  not  stop  there,  and  he  was  com- 
pelled to  get  off  three  miles  away.  Sild,  that  he  was  entitled  to  actual 
damages  sustained  from  tbe  mistake  of  the  agent  and  damages  for  the 


^dbvGoo^lc 


9A1IASX8  BT  CASXHSS  OT  FAHUeiBt-OmNrMMd. 

mudirectioD,  thongh  the  proof  did  not  itutua  u  allmtioBaf  fiMcMa 
ejection.     AJAbuna,  etc.,  R.  Co.  v.  Heddleaton.     116. 

Where  a  paaaenger  on  a  street-car,  riding  on  a  tranafer  ticket  giTen  him  tqr 
company's  vent  at  the  interaection  of  the  lines,  wai  evicted  on  the 
grouad  that  iiis  ticket  onl;  entitled  him  to  a  ride  on  the  other  line, 
an  iastruction  that  he  was  eotitled  lo  damages  for  the  agent's  misdi- 
rection and  to  vindictiTe  damages  for  a  wilful  and  malicious  miEdiree^  . 
tioa,  bat  that  if  plaintiff  did  not  get  oB  as  related  bj  him,  but  came 
from  another  line  and  received  a  transfer  without  obieetion,  and  under- 
took to  ride  CD  the  line  it  did  not  caU  for,  he  cannot  recover,  after  a 
Tsrdict  will  not  be  held  erroneous,  there  being  evidence  to  auppon 
it.     Carpenter  V.  Wubington,  etc.,  R.  Co.     120. 

Under  the  Teiu  statute,  an;  one  of  the  purtie*  «□  titled  to  damaeea  maj  bring 
an  action  for  the  benefit  of  all;  and  in  an  action  bj  a  wife  to  recorer 
damaoes  for  her  husband's  death,  the  petition  alleging  a  child  and 
claiming  damages  for  it  also,  it  ia  not  error  to  render  judgment  for 
the  benefit  of  wife  and  child.     Teus,  etc,  B.  Co.  «.  Berr;.    147. 

nOLAB&TIoa.    Bee  EvmsKOK. 

■IBIOB  AHS  OKIDITOK. 

Relation  of  creditor  and  debtor  exist*  between  United  Btatea  and  Central 

Pacific  Railroad  Company  under  act  granting  aid  to  latter,  as  if  both 

were  natural  persons.    In  re  Pac.  R.  Com.     598, 
United  States  as  creditor  cannot  institnte  compulsory  investigation  into 

Erivate  affairs  of  Central  Pacific  Railroad  Company,  nor  require  exhi- 
ition  of  book!  and  papers  for  inspection,  in  anj  other  way  or  to  any 
greater  extent  than  in  case  of  private  creditors  and  debtors.  In  rw 
Pac,  R  Com.  S98. 
United  Slates  as  creditor  hasaame  remedy  ai  private  creditor,  and  no  other, 
to  compel  payment  of  moneys  due  from  Central  Pacific  Railroad  Com- 
pany, or  to  prevent  latter  from  wasting  assets  before  debt  is  matured, 
and  that  remedy,  if  any,  must  be  by  regular  judicial  proceedinga;  and 
Congress  hag  no  power  to  institute  legislative  inquisitions  into  affaira 
of  company  to  ascertain  what  It  has  done  or  ii  doing  with  its  money. 
In  re  Pac  R.  Com.    098. 


It  ia  proper  to  refoae  a  request  that  a  company  has  a  right  to  leave  &  do- 
leotive  car  on  a  aide  tt»ck  in  the  usual  course  of  business  as  known 

Site  employees;  but  in  so  refusing,  a  reference  to  pluntifl'a  knowl- 
ge  of  whether  the  wind  might  force  such  car  on  the  main  trwk  it 
duiaglng  error.    Hewitt  9.  Plmt,  etc,  S.  Co.    94». 


On  a  demurrer  to  the  erldenoe,  the  qneation  for  the  conrt  is  whether,  con- 
sidering only  what  is  favorable  to  appellant,  and  giving  him  the  full 
benefit  of  all  reasonable  inferences,  he  is  entitled  to  a  recovery  on  the 
caoee  of  action  stated.     Palmer  e.  Chicago,  etc.,  R.  Co.     8S4. 

Where  plaintiff's  intestate  was  somewhat  deaf  and  both  plaintiff  and  the 
intestate  were  walking  on  a  track,  plaintiff  observed  the  approaching 
train  and  endeavored  to  signal  to  bis  intestate,  who  did  not  observe 


^d  by  Google 


INDEX.  697 

DSKUXSIS— OmjtnMd. 

the  BiKnala  and  was  killed,  and  the  en^neer  teitlfied  positively  that 
be  did  not  see  the  aignals,  uid  the  plaintiS  thought  he  did  not  know 
whether  he  did  so  or  Dot,  it  VAihtla,  that  the  court  properly  sustained 
ademurrerto  the  evidence;  and  whether  the  train  ran  at  a  furious  speed 
ia  immaterial,  unless  as  an  intentional  or  wilful  act,  decedent's  negli- 
gence debarring  a  recorerj  on  that  ground.  Palmer  e,  Chicago,  etc., 
R  Co.    SS4. 

SKPOfllTIOH.     Bee  CoDenrrunoirAi.  lAw. 

DZFOTB.     Bee  Btattohb. 

DOVBLE-EKADXas.    Bee  HaSTEb  Abs  BBBVAirr. 

DTI>e  UCUXATtOn. 

The  principle  of  dying  declaratiomdoes  not  apply  to  civil  cases;  and  In  an 
action  against  a  railroad  company  to  recover  damages  for  death,  it  ll 
error  to  admit  in  evidence  the  statement  made  by  the  injured  person 
short);  before  bis  death,  though  some  time  after  the  accident,  such 
Statement  not  being  a  part  of  the  rei  getta  and  mere  hearsa;.  B. 
Tennessee,  etc,  R.  Co.  v.  Maloy.     SSa. 


Where  land  wa«  conveyed  for  purpose  of  railroad  station,  a  certain 
strip  of  which  was  described  as  dedicated  for  a  public  street,  but 
which  was  never  accepted  by  the  public,  and  the  station  was  erected 
and  devisees  of  property  connected  by  strip  with  station,  on  which 
was  a  hotel,  by  subaequent  deeds  quit-claimed  portion  of  strip  ad- 
joining land  so  conveyed,  with  provision  that  grantee  should  maintun 
opening  in  premises  conveyed  opposite  hotel  erected  by  original 
grantor  for  convenient  access  from  station,  to  be  at  no  time  closed, 
and  defendant,  succeeding  to  title  of  flrit-named  grantee,  built  a  fenoa 
across  the  strip,  cutting  on  hotel  from  station, — failure  to  accept  de^- 
cation  continued  the  property  of  strip  in  original  grantor,  ana  provl- 
rion  in  deeds  was  a  covenant  running  with  tne  land  and  was  enforce- 
able by  lessees  of  hotel  property,  though  sucb  lessees  did  not  ques- 
Uon  validity  of  quit-cisim  deeds  conveying  interest  of  grantors  in 
Strip,  and  in  consequence  thereof  abandoned  the  same  as  a  public 
highway.     Avery  d.  New  York,  etc.,  R.  Co.     G88. 

Fl^ntiff  only  alleged  possession  of  hotel  property,  without  showing  him- 
self a  party  or  privy  to  any  covenant  in  the  deeds  as  to  a  right  of  way. 
Hdi,  not  error  for  court  on  plaintiff's  motion  to  permit  amendment 
setting  up  plaintiff's  lease.     Avery  v.  New  York,  etc.,  R.  Co.    BBS, 

Oomplainantallegedstripof  land  to  be  public  highway,  and  a  fence  across  it 
a  nuisance;  there  wore  averments  that  an  easement  existed  to  adjoin- 
ing hotel  property  of  right  of  way  across  the  strip  for  passengers  and 
bsggage  from  station,  and  that  the  fence  had  no  opening  for  them  aa 
it  should  have.  Hdd,  that  complainant  might  have  been  more  definite  - 
in  stating  easement  to  have  been  reserved  by  deeds,  still  plaintiff's 
light  of  relief  by  virtue  of  reservstion,  which  he  ceuld  not  obtain  on 
any  other  ground,  was  not  defeated,  and  the  whole  fence  need  not 
have  been  removed,  but  merely  an  opening  for  the  convenient  passage 
of  paaieugers  and  b^gs^.     Avery  v,  New  York  etc.,  R.  Co.    083. 


^dbvGoo^lc 


698  INDEX. 

XQCAIIZATIOK,  STATI  BOAXIt  OT.    Bee  Taxaticoi. 


QnestioD,  if  animal  was  in  m  good  condition  vhen  kilted  u  when  witneM 
knew  her.  what  would  be  ner  market  value,  is  not  error,  couniel  stat- 
iog  that  if  bjpothesia  is  not  maintained  evidence  would  be  Btruck  out. 
Evidence  of  animal'B  general  reputation  among  horaemen  with  refer- 
ence to  being  rattle-headed  in  racing  ii  inaomiaaible.  Cincinnati, 
etc,  R.  Co.  e.  Jones.     491. 

Where  It  does  not  appear  from  record  what  witness  would  have  answered 
to  a  question,  tbe  lustaining  of  an  objection  present*  no  qoeation  OB 
appeal.     Cincinnati,  etc.,  R.  Co.  e.  Jones.     491. 

In  action  for  damsges  for  killing  Block  caused  bj  defective  fencet  it  can- 
not be  shown  that  othen  of  plaintiff's  stock  had  several  times,  months 
before,  been  seen  on  right  of  way.  Jebb  o.  Chicago,  etc.,  R.  Co. 
&33. 

Locomotive  fireman  on  tndn  which  killed  stock,  having  four  years'  ex- 
perience, may  give  his  opinion  aa  witness  as  to  whether  there  was  time 
to  stop  within  certain  distance  of  an  animal  on  track,  question  be- 
ing possibility  of  stopping  After  stock  was  discovered.  Qritnmell  9, 
Chicsgo,  etc.,  R  Co.    S87. 

Evidence  as  to  precise  time  of  first  discovery  of  cattle  on  track  may  be  ex- 
cluded when  it  is  undisputed  that  engineer  after  discovery  had  time 
to  stop  before  accident.     Orimmell  v.  Chicago,  etc.,  R.  Co.     G87. 

Instruction  that  if  jury  found  that  boraes  escaped  from  pasture,  .paMed 
over  guard,  stepping  between  cross-ties,  and  that  diSerentlv  con- 
structed cattle-guards  were  used  elsewhere,  these  facts  would  not 
justify  inference  that  cattle-guard  was  defective  or  insufficient,  is  not 
erroneous,  there  being  sufficient  other  evidence,  to  which  court  called 
attention,  of  character  of  guards.  Timmiuse.  Chicago,  etc.,  R.  Co. 
Ml. 

Where  evidence  showed  that  cow  killed  by  locomotive  could  have  been 
Been  where  sne  was  lying  after  injury'by  one  on  en^ne  for  about  17|I 
yards,  and  that  had  engineer  been  looking  out  of  nght  side  of  cab  as 
it  rounded  curve  cow  might  have  been  seen  in  time  to  stop  train, 
there  is  enough  proof  of  negligence  to  submit  question  to  jury.  Den- 
ver, etc.,  R.  Co.  r,  Renderaon.     SSQ, 

Here  killing  of  animal  by  railroad  is  not  evidence  of  negligence,  and  fact 
that  animal  was  found  killed  on  track  will  not  warrant  recovery 
against  company.     Atchison,  etc.,  R,  Co.  t.  Betts,     0G8. 

Horse  was  alleged  to  have  been  injured  by  falling  through  cattle-guard  by 
failure  to  fence  track;  tracks  of  horse  Hhowing  speed  on  right  of  way 
and  paasnge  of  train  during  night  of  accident  were  shown;  court 
instructed  that  plaintiff  to  recover  must  show  by  preponderance  of 
evidence  cause  of  injury  to  have  been  driving  of  horse  by  train  into 
cattle-guard.  Held,  presumption  of  fright  by  trun  mere  surmise,  and 
verdict  for  plaintiff  could  not  be  sustuned.  Hoores.  Burlington,  etc, 
R.  Co.     679. 

To  recover  for  injuries  caused  by  gun-shot  wounds  inflicted  by  corpora- 
tion's servants,  evidence  of  loss  of  power  to  have  offspring  resulting 
from  nature  of  wounds  may  be  considered  by  jury,  though  not  specified 
in  declaration  as  result  of  wound.  Denver,  etc.,  R.  Co.  «.  Harris. 
592. 

Congress  cannot  compel  production  of  private  hooka  and  papers  of  citizens 
for  inspection  except  in  course  of  judicial  proceedings  or  in  sniti 


^dbvGooglc 


IVIDUOX— Omtfnuad. 

iDStitnted  for  tbnt  pnrpose,  and  then  onl^r  on 
in  some  way  depend  on  evidence  therein  c 
Com.    698. 

OoDgrew  cannot  empower  commisaion  to  invwtig: 
etc.,  of  officera  and  emplojees  of  corporation 
as  to  relations  to  other  companies  with  which 
except  so  far  as  officers  and  employees  are  wi 
inspection,  and  iuTeatif^tion  of  Pacific  Rulw 
to  that  extent.    In  re  Pac.  R.  Com.     S98. 

It  il  not  error  to  allow  a  witness,  not  an  expert,  t 
whether  a  child,  whom  he  knew  before  and 
bright  or  foolish  boy;  nor,  where  CTidence 
injuries  to  time  of  trial  and  their  permanency, 
doctor  called  in  five  years  afterwards  as  to  i 
immaterial.     Ecyser  v.  Chicago,  etc.,  R.  Co. 

Evideece  of  the  usage  of  railroad  freight  trains  t( 

Gove  the  usual  stopping  place,  where  the  in 
en  occasioned  by  stopping  at  an  unnsual  pli 
GFee  e.  Missouri  Pacific  R.  Co.     1. 

Where  passenger  suitaieed  injury  by  falling  over 
aisle  placed  there  by  the  brakeman  to  ught  t) 
ask  brakeman  in  cross-examination  to  state  thi 
the  accident  to  the  effect  that  he  had  forgot) 
and  it  was  his  fault;  nor  can  plaintiff  testify 
face  of  brakeman's  denial ;  nor  could  plaint) 
each  evidence  by  cross-examination,  ana  on  b 
prove  the  conversation  under  the  guise  of  coal 
there  being  nothing  in  the  alleged  conversati< 
contradicted  him.     Sherman  «.  Delaware,  etc 

The  court  must  grant  a  new  trial  where  there  is  e^ 
is  incompetent,  and  which  probably  influence 
Delaware,  etc.,  R.  Co.     15. 

There  there  was  some  evidence  to  show  that  p 
suffer  pain  and  inconvenience  from  the  injury 
ered  at  the  time  of  trial,  and  the  physicians  bi 
whether  the  injury  would  bo  permanent,  an  in 
find  it  go  they  should  consider  such  inconven 
be  reasonably  certain  to  result  in  the  future  ii 
e.  Cent.  Iowa  R.  Co.     45. 

It  is  a  proper  inatruction  to  say  that  a  fur  pre 
means  such  evidence  as  shall  outweigh  all  o| 
jury's  minds,  and  does  not  necessarily  mean  I 
nesses  on  either  side.     Strand  e.  Chicago,  etc 

It  is  a  (juestion  for  the  jury  whether  a  railroad  is 
nish  a  shipper  of  stock  with  transportation  fl 
the  stock-yards,  there  being  evidence  to  shoij 
such  ttanspuTtatioD.     Lake  Shore,  etc.,  R.  Ca 

When  a  fact  has  been  testified  to  by  two  witnessei 
it  is  not  reversible  error  to  refuse  to  admit  ! 
evidence  on  that  particular  point.    Lake  Bha( 

It  appearing  that  a  car-load  of  stock  in  tt«nsit  i»\ 
biy  from  heat,  it  was  not  objectionable  to  au 
coarse  the  carrier  might  properly  pursue  for  1 
Chicago,  etc.,  R.  Co.     86. 


ptHX'^lc 


700  INDXZ. 

XVIDEICB— OimimiMtl. 

A  charge  that  a  fact  in  iune  mtut  be  proved  to  the  utiifactioB  of  the  jnrj 
bj  a  prepooderance  of  the  evidence,  A«U,  in  coDoectioD  with  other 
iostructioDB,  to  mean  on);  that  the  burden  of  proof  miut  be  atiBtaiued 
bj  OTideoce  which  the  jury  deem  to  be  prepoudetaut.  Liadalej  e, 
Chicago,  etc.,  R.  Co.     8fl. 

Sndence  of  a  shipper's  undentaading  of  a  cootract  of  ahipnieiit  of  stock 
with  the  first  of  two  coonecting  carriers,  and  that  the  contract  thus 
UDdersCood  had  Dot  been  performed  by  sucb  carrier,  is  immaterial  in 
an  action  for  injuries  to  the  stock  receiTed  on  the  line  of  the  second 
carrier  with  whom  the  shipper's  agent  had  made  another  contract, 
and  error  in  ita  admisaion  is  hormlesB.  Columbui,  etc.,  R.  Co.  v.  Eeo- 
nedj.     02. 

Evidence  that  the  agent  of  defendant  company  on  receipt  of  the  injured 
stock  urged  pjaintifl  to  take  and  do  the  best  he  could  with  them, 
•aying  that  the  company  would  make  it  all  right,  ia  relevant  in  an 
action  agkinst  the  company  for  damages  as  part  of  the  ret  getta, 
whether  such  promise  be  binding  on  defendant  or  not.  Colurobtu, 
etc^  R.  Co.  e.  Kennedy.     92. 

XvideDce  of  statements  by  defendant's  servant  as  to  bow  the  fire  occurred 
which  destroyed  plaintiff's  baggage,  then  in  company's  station,  htid 
admissible  ss  part  of  the  ru  getta,  Illinois  Cent..,  etc.,  R.  Co.  s, 
Troustine.     99. 

In  an  action  by  a  passenger  to  recover  damages  for  being  ejected  from  a  rul- 
Toad  train  on  refusal  to  give  up  his  ticket  on  demand,  the  best  evi- 
dence of  his  right  to  be  on  the  train  is  the  ticket  itself,  and  until  the 
no n- production  of  the  ticket  is  explained  parol  evidence  of  what  such 
ticket  is  entitled  to  cannot  be  admitted.  Memphis,  etc.,  R.  Co,  e. 
Benson.     113. 

Admission  of  testimony  showing,  in  an  action  to  recover  dunages  for  in- 
juries by  A  brakeman,  that  he  had  a  wife  and  children,  and  overruling 
an  objection  that  plaintiff  could  only  recover  for  individual  damage 
by  the  remark  that  the  court  "  did  not  take  that  view  of  it,"  was 
erroneous  and  prejudicial.  An  explanation  to  a  jury  that  the  "can 
of  a  man  of  ordinary  prudence"  is  "just  such  care  as  one  of  you  simi- 
larly  employed  would  have  exercised  under  the  ciicnmatance"  is 
erroneous.     Louisville,  etc.,  R  Co.  i.  Qower.     168. 

Ttke  condition  of  a  defective  track  ailpfpd  to  have  been  the  cause  of  an 
accident  should  be  shown  at  such  time,  before  or  after,  as  will  induce 
areasonable  presumption  that  the  condition  wnsanchsnged^  evidence 
of  it  three  years  before  the  trial  and  twenty-one  months  after  the  ac- 
cident wss  inadmissible.     Little  Rock,  etc,  R.  Co.  e.  Bubanka.     176. 

The  contract  signed  by  a  brakeman  advising  him  that  the  uncoupling  of 
moving  cars  is  dangerous,  and  is  forbidden,  is  admisuble  where  a 
brakeman  is  injured  endeavoring  so  to  couple  cars,  to  show  notice  of 
the  danger,  existence  of  the  rule,  and  notice  of  it  to  the  brakeman ;  sod 
plaintiS^B  ofier  to  admit  it  for  the  purpose  of  showing  notice  of  the 
danger  will  not  cure  its  erroneous  exclusion.  Sedgewick  e.  Illinois 
R  Co.     807. 

Svidence  of  the  condition  of  a  track  at  the  place  of  an  accident  loon 
than  three  years  after  it  happened  ia  inadmiaaible,  Stoher  e.  St. 
Louis,  eta,  K,  Co.     389. 

Where  an  engineer  was  injured  by  a  collision  with  a  flat  car  which  bid 
run  on  to  the  main  track,  there  being  no  station  agent  to  attend  to 
keeping  the  road  clear,  a  rule  of  the  time-card  relating  exoluaively  to 
the  duty  of  siii-h  Bpnt  wna inadmissible  on  plaintifTs  liehalf.     Hewitt 

r.  Fiiiii.  .-.■..  li.  c...    am. 


^d  by  Google 


INDBX.  701 

SllLSSCE—OaiMnttai. 

Tbe  queitioa  of  how  far  in  pluntiS's  opinion  a  car  under  certain  circum- 
ttanCQH  would  run  ofi  a  aide  track  is  immBterial ;  and  the  fact  that  the 
plaintiff  is  a  man  of  famil;  with  whom  he  lires  ia  immaterial  and  in- 
admissible.    Hewitt  c.  Flint,  etc.,  R.  Co.     349. 

^e  qucBtion  of  due  care  is  ordinaril;  for  the  jury,  bat  it  is  for  the  court 
to  determine  whether  the  proof  is  sufficient  to  authorize  tbe  jnr;  to 
find  due  care.     TVoimeil  v.  Maine  Cent.  R.  Co.     373. 

Ill  an  action  for  personal  injuries  the  court  may  instruct  that  plaintiff's 
expenses  for  medical  treatment  are  a  proper  element  of  damage,  and  a 
general  exception  taken  to  such  inatruction  as  a  whole  wiU  not  be 
sustained  where  it  is  merely  claimed  on  appeal  that  there  waa  no 
evidence  that  he  expended  anything  foi  such  treatment.  Eultehan  «. 
Green  Bay,  etc.,  R.  Co.     832. 

nie  principle  of  dying  declarations  does  not  apply  to  cItiI  cases;  and  in 
an  action  against  a  railroad  compaDj  to  recover  damages  for  death,  it 
is  error  to  admit  in  evidence  the  statement  made  by  tbe  injured  per- 
son shortly  before  hie  death,  though  some  time  after  tbe  accident,  each 
statement  not  being  a  part  of  tie  tvi  gaUi  and  mere  hearsay.  E. 
Tennessee,  etc,,  R.  Co.  e.  Haloy.     853. 

Declarations  of  a  conductor  stating  what  tbe  eDgineer  told  bim  to  be  tbe 
cause  of  an  accident  are  mere  hearsay  and  inadmiuible.  B.  Tennessee, 
etc,  R.  Co.  e.  Haloy.     902. 

On  a  demurrer  to  tbe  evidence  the  qnestion  for  the  court  is  wbetber,  con- 
sidering only  what  is  favorable  to  appellant,  and  giving  him  the  full 
benefit  of  all  reasonable  inferences,  he  is  entitled  to  a  recovery  on  tbe- 
cause  of  action  stated.     Palmer  e.  Chicago,  etc.,  R.  Co.    864. 

Hie  allegation  in  a  declantion  that  plaintiff  "  remained  from  that  time 
in  a  sick,  sore,  wounded,  bruised,  and  injured  condition  so  that  he  is 
maimed  for  life,"  sufficiently  sets  out  that  plaintiff  sought  damama 
for  sickness  and  disorder  and  attendant  expenies;  and  evidence  that 
after  the  accident  he  waa  aubject  to  convnlsions,  fits,  etc,  and  was 
Injured  as  to  his  mind,  was  properly  admitted.  Eeyeer  e.  Chicago, 
etc.,  R.  Co.    8BB. 

SUtetnents  mode  by  engineer  as  required  by  company's  rules  after  an  ac- 
cident, at  the  next  station,  are  competent  evidence  aa  to  the  drcum- 
stances  ;  and  statements  by  an  engineer,  just  after  an  accident,  run- 
ning a  abort  distance,  and  backing  to  tbe  place  of  the  accident,  and 
immediately  after  stopping  the  train,  are  part  of  the  rw  ffttta,  and 
admissible  to  show  bow  it  happened.  Eeyser  e.  Chicago,  etc,  R.  Co. 
899. 

A  child'a  mother  who  personally  cared  for  it  may  be  permitted  to  show 
appearances  of  sickness,  the  fact  that  be  waa  ill,  and  symptoms  of 


IXFZBT  ETISIHOS.  Bee  EviiiMtM. 
It  is  not  error  to  allow  a  witness  not  an  expert  to  answer  the  qnestion 
whether  a  child,  whom  he  knew  before  and  after  the  accidrnt,  was  a 
bright  or  foolish  boy  ;  nor,  where  evidencu  hlmwcd  a  rontiminnce  of 
injuries  to  time  of  trial  and  their  permanency,  is  a  question  nskvd  of 
the  doctor  called  in  five  yean  afterwards  a«  to  what  condition  he  wiia 
in  immaterial.     Eeyser  e.  Chicago,  etc.,  R  Co.    899. 


^dbvGooglc 


Under  an  Alabama  statu te  prondiDg  for  tbe  examination  of  nilroad  em- 
plojeee  as  to  defects  id  Tislon  bj  an  officer  appointed  b;  tbe  eav- 
ernor  at  the  expense  of  the  railroad  company,  a  medical  exanucer 
cannot  lawfuUj  refuse  to  make  such  examination  because  tbe  com- 
pae  J  refuses  to  pa;  the  prescribed  fee,  nor  require  pa;  from  the  appli- 
cant himself;  and  sa  a  general  rule,  the  statute  prescribing  fees,  but 
not  speciall;  providing  b;  vbom  the;  shall  be  paid,  the  person  re- 
questing the  service  u  liable  for  fees,  and  tbe  officer  is  entitled  to 
payment  aa  tbe  serrices  are  rendered,     Baldwin  v.  Kouns.    S47. 


A  road  must  be  fenced  for  tbe  protection  of  children  as  well  as  animals, 
and  a  charge  that  under  a  statute  a  road  is  onl;  compelled  to  fence 
its  wb;  (or  the  preTention  of  injur;  to  cattle  and  other  animals  was 
properly  refused,  the  child  being  Sf-  ;ears  old.  Ke;sec  v.  Cbicago, 
etc.,  R  Co.     809. 

While  railroad  need  not  construct  fences  or  cattle-pits  where  it  would  b- 
terfere  with  employees'  safety  or  with  rights  of  travelling  public,  yet 
burden  is  on  company  to  show  adoption  of  all  reasouable  precautions 
to  keep  animals  ofi  bridge  abutting  on  highway,  constructed  b;  road, 
even  though  it  is  partiall;  in  the  higbwa;  or  an  animal  may  hare 
been  killed  on  that  part  in  the  highway  on  ground  appropriated  b; 
company.     Cincineati,  etc.,  R.  Co.  s.  Jones.    491. 

"Where  railroad  maintains  bridge  in  such  condition  that  animals  ma; 
enter  from  highwa;,  so  jeopardizing  safety  of  trains  and  animals,  in 
absence  of  showing  it  impracticable  to  do  otherwise  road  is  not  ae- 
curei;  fenced.     Oincionati,  etc,  R.  Co.  e.  Jones.    4S1. 

ITot  with  standing  Indiana  act  of  183C,  tbe  cbrporation  owning  railroad 
and  lessees,  ete.,  are  jointly  liable  for  injur;  of  animals  as  under  act 
of  1881 ;  and  manner  of  conducting  actions  and  collecting  judgments, 
and  liability  for  failure  to  fence  except  as  to  fsnn-crossings,  are  the 
same,  the  tatter  having  been  transferred  b;  act  of  1683  to  land-owner; 
aed  to  hold  company  Habie  under  act  of  183S,  animal  must  have  been 
killed  or  injured  by  engine  or  cars.    Fennsylvania  Co.  c.  Dunlap.    SIS. 

Pleadine  first  attacked  after  judgment  for  not  stating  canae  of  action  will 
be  Tiberall;  construed  to  uphold  judgment,  and  allegation  that  road 
is  not  securel;  fenced  held  to  mean  not  enclosed  b;  good  and  lawful 
fence.     Missouri  Pac.  R.  Co.  e.  Morrow.     680. 

TTnder  admissions  that  railroad  was  not  fenced  in  township  where  bogs 
were  permitted  to  run  at  large,  and  even  if  it  were  fenced  as  des- 
igoated  b;  law  hws  would  not  have  been  prevented  from  going  on 
the  right  of  way,  it  is  error  to  instruct  finding  for  plaintiff  unless 
found  guilt;  of  contributory  negligence,  and  evidence  of  fencing  of 
railroad  is  immaterial.     Leavenworth,  etc.,  R  Co.  e.  Forbes.     522, 

Where  jury  found  injury  caused  by  company's  negligence,  plaintiff  should 
have  recovered  unless  guilty  of  contributory  negligence,  and  keeping 
hogs  in  insecure  enclosure  and  thereby  permitting  them  to  escape 
upon  road  would  not  be  such  negligence  as  to  prevent  recovery. 
Leavenworth,  etc.,  R.  Oo.  e.  Forbes.    622. 

Implied  exception  to  statute  requiring  tracks  fenced,  allowing  openings 
for  access  to  stations,  etc.,  modifles  general  obligation  to  fence  oaT; 
BO  far  as  necessarv;  and  railroads  must  fence  to  keep  animals  off  sta- 
tion grounds  ana  thence  off  track  beyond  limits  of  such  grounds 
Kobe  t.  Northern  Pac.  R.  Co.     528. 


^d  by  Google 


The  Texas  statute  Fequiring  track  to  be  fenced  doea  not  apply  where 
public  neceasitj  retjuires ;  but  reilrosd  must  show  place  where  tuiimal 
entered  and  waa  injured  nithin  town  or  city  limits  to  be  one  not  per- 
missible under  law  to  fence.  Missouri  Psc.  R.  Co.  et  aL  t.  Dunham. 
580. 

la.action  for  damages  for  kilUne  stock  caused  by  defective  fences,  it  can- 
not be  shown  thst  others  ofplsintiS's  stock  bad  several  times,  months 
before,  been  seen  on  right  of  way.  Jebb  o.  Chicairo,  etc.,  R.  Go. 
583. 

Instruction  that  if  jury  finds  that  cow  wss  struck  and  killed  by  defendant's 
engine  the  plain ti&  cannot  recover,  plaintiff  claiming  that  if  animal 
was  on  crossing  it  was  because  of  defendant's  neglect  to  fence  track, 
is  erroneous  sa  excluding  alt  idea  that  defendant's  negligence  might 
hare  occasioned  cow's  being  on  highway.  Jebb  v.  Chicago,  etc.,  B. 
Co.     688. 

Instruction  that  if  cow  escaped  through  defectire  fence  which  should 
have  been  repaired  by  defendant,  such  defect  being  open  and  having 
existed  for  some  time,  plaintiff  could  recover  for  killing  and  iutereat 
on  value  of  animal,  is  proper ;  as  also  to  inform  jury  that  cow's  having 
wandered  on  public  higaway  when  struck  is  immaterial.  Jebb  •. 
Chicago,  etc.,  R.  Co.     aSS. 

Where  owner  pursues  common-law  remedy  be  has  burden  of  proof,  and 
does  not  make  out  prima  faeie  negligence  by  showing  injury  by  loco-* 
motive  striking  stock  and  damages  for  certain  sums,  railroads  not 
being  required  in  Arkansas  to  fence,  and  stock  being  permitted  to 
run  at  large.     Denver,  etc.,  R  Co.  b,  Henderson.     689. 

tliider  Texas  statute  making  railroad  liable  for  stock  killed  unless  track 
is  fenced,  the  company  is  not  liable  for  injury  to  animal  on  track 
through  fright  at  train,  and  injured  on  trestle  and  not  by  locomotiw 
or  cars.     International,  etc.,  R.  Co.  v.  Hughes.    S69. 

nLLOW-RBBTAITT.    See  Nsoliqbkcb. 
Where  an  engineer  was  injured  by  a  collision  with  a  flat  ear  which  had 
run  on  to  the  main  line  from  a  side  track,  the  company  is  entitled  to 
the  instruction  that  if  the  jury  believed  the  motion  to  have  been  Im- 

Krted  by  a  freight  train  backed  on  to  the  aide  track  that  night,  such 
it  might  establish  negligence  in  the  control  of  the  freight  train;  but 
the  negligence  being  that  of  fellow -servants,  he  was  not  entitled  to  ■ 
recovery;  and  also  that  it  plaintiff,  knowing  or  having  means  of  know- 
ing of  the  risks  of  the  business,  continued  therein  without  complaint, 
an  action  cannot  be  maintained  for  an  injury  which  might  have  been 
TOvvented  by  conducting  the  buedness  in  another  way.  Hewitt  o. 
Flint,  etc.,  R  Co.     M». 

Where  a  car-repairer  was  ordered  by  a  conductor  to  go  under  a  car  and 
repair  a  brake  in  the  company's  yard,  and  while  so  engaged,  wiili 
knowledire  of  the  conductor,  the  tnun  started  and  he  was  kilUd,  AeM, 
that  if  the  conductor  was  in  charge  of  the  train  the  company  umi 
liable  under  the  rule  of  reip»ndaat-»up«rit>r;  but  if  under  charge  of  the 
yard-master,  he  being  a  fellow-servant,  the  company  was  not  liable; 
but  it  being  doubtful  who  had  charge  of  the  train,  it  was  error  to  order 
a  verdict  for  the  defendant  on  the  ground  that  the  yard-master  had 
charge.     I^tt  v.  Louisville,  etc ,  R.  Co.     389. 

An  engineer  in  the  employ  of  a  company  tor  s  number  of  years  who  was 
injured  by  the  collision  of  his  engine  witli  a  flot  car,  the  flat  car  be- 
ing unprovided  with  brakes  and  there  being  no  stop-blocks  on  the 


^dbvGoO^^lc 


iXLutw-avrkST—OmOmua. 

aide  track,  from  whicb  the  flat  cu  rolled  orwu  mOTed  on  tothe  mun 
track,  auumed  a.  risk  incident  to  the  businew,  including  that  of  neg- 
ligence of  fellow-BerTBnts;  and  in  Michigan  there  ii  no  legftl  obliga- 
tion to  maintaiii  a  station  agent  at  a  flag  Btation  where  there  is  an  un- 
blocked aiding  for  its  empIo;eea'  protection.  Hewitt  «.  Flint,  etc, 
R.  Co.     Mfl. 

Where  a  brakeman  jumped  on  a  naoving  train  and  while  so  doing  waa 
■truck  by  a  pile  of  lumber  near  the  track,  of  which  he  knew  and 
which  was  piled  there  b;  the  atatian  agent,  it  waa  held  that  he  ae- 
aumed  the  risk  incident  to  emplojnent  and  that  the  station  agent 
waa  his  fellow-aervant,  and  he  couid  not  recover.  OaSne;  c  Hew 
York,  etc.,  R.  Co.     38S. 

A  nulroad  company's  order  directing  inspectora  and  repair-men  to  place  a 
signal  at  the  end  of  the  cars  in  the  Erection  from  which  a  train  could 
approach,  in  ordering  train-men  not  to  back  aeainat  aach  carg  while 
aaid  signal  waBdigplafed,  if  enforced,  waa  a  sufficient  protection  for  em- 

{iloyees;  and  an  injury  to  a  car-repairer  working  under  a  car  result- 
ng  from  the  negligence  of  a  foreman  in  not  properly  placing  the 
rignal,  and  of  the  engineer  of  a  switch-engine  in  uncoupling  cara  in 
motion,  cannot  be  recoTered  for;  the  foreman  and  the  engineer  being 
the  plaiutiS'i  fellow-serTanta,  and  there  being  no  erideoce  that  tbey 
were  iDcom potent  Petenone.  Chicaso,  etc.,  R.  Co.  29S. 
It  IwinK  shown  that  a  aection-maater  waa  (be  company'aagent  andaerrant, 
and  had  power  to  hire  and  discharge  hands,  and  was  the  superior 
of  the  plaintiff,  and  whose  order*  plaintiff  waa  bound  to  obey,  it 
a  held  that  he  is  not  a  fellow-aer^ant  of  the  plaintiff,  and  the  a 


A.  foreman  of  a  wrecking  crew  it  not  a  fellow- servant  of  the  workmen  in 
his  crew,  and  for  an  accident  happening  to  the  latter  through  the  neg- 
ligence of  the  former  the  company  is  liable.  Wabaah,  etc.,  R.  Co. 
v.  Hawk.     808. 

&J1  engineer  and  a  car-inspector  are  not  fellow-eerranta,  and  a  railroad 
company  ia  liable  for  an  injury  to  the  latter  caused  hy  the  negligence 
of  the  former.    Chicago,  etc.,  R.  Co.  e.  Hoyt.     809. 

Where  one  set  ol  emptoyees  waa  engaged  in  throwing  rails  from  the  top 
of  a  pile,  and  another  act  in  loading  snch  rails  on  a  car,  one  of  the 
latter  had  a  right  to  expect  that  the  rail  would  not  be  thrown  down 
until  he  ia  safely  out  of  the  way,  or  baa  had  at  least  sufficient  time  to 
get  away  hy  warning  given  ;  and  the  employeea  on  top  are  gnilty  of 
negli^nce  in  lowering  the  rul  without  giving  time,  and  the  company 
was  liable  under  the  Kansas  act  making  railroad  companies  liable  to 
employeea  for  damages  resulting  from  the  negligent  acta  of  other  em- 
ployees, which  act  ia  held  to  be  valid.  Atchison,  etc.,  R.  Co.  «. 
Koehler.     813. 

A  atatioD  agent  having  general  supervision  over  tracks  and  switches  at  his 
■tatton,  and  a  brakeman  In  the  employ  of  the  same  company,  are 
fellow-servants,  and  the  company  is  not  liable  for  an  injury  to  the  ' 
latter  caused  by  the  negligence  of  the  former.  Toner  e.  Chicago,  etc, 
R.  Co.     320. 

A  section-boss  whose  duty  it  is  to  keep  the  track  clear  and  in  auitable 
condition  for  the  use  of  employees  is  not  a  fellow-servant  of  a  brake- 
man,  and  the  company  ia  liable  for  an  injury  to  the  latter  caused  by 
111.-  I'psllirence  of  the  formrr  in  allowing  slicks  and  blocks  of  wood  to 
th.-  1'--  k.      llnll.O.iin  B.  Ori-en  Dhv.  He.  It.  Cn.      322. 


^dbyGooglc 


TZLLOV-SEBYAXT—Continwd. 
A  diTiaion  master-mechanic  ia  Dot  &  fellow- Berrant  with  a  locomotiTe  flre- 

man,  and  the  company  in  liable  for  the  latter'B  death  caused  by  ths 
partioff  of  the  locomotive  and  leader  owinir  to  a  difference  in  height, 
after  the  master- mechanic  bad  been  notified  of  the  defect.  Eruegec 
v.  Louinrille,  etc.,  R.  Co.    838. 

TLAXCJOBS.    See  Taxatioit. 

TXATn>.    Bee  AsBEBSimHT. 


A  child  of  parents  vho  had  conreyed  land  to  a  nilroad  company,  in  con- 
sideration of  which  it  had  agreed  to  carry  the  parents  and  children 
free  of  charge,  has  a  complete  right  to  such  carriage  in. himself ;  and 
the  regulation  that  free  paaaage  would  not  be  allowed  to  any  one  does 
not  apply  to  him,  and  be  is  under  no  obligation  to  aak  for  a  free  pass, 
and  could  recover  for  ejectment.  Orimea  o.  Uinneapolia,  etc.,  B.  Co. 
128. 

miOHT.    See  Caiibixrs  or  Lite  Stocz;  Iitterbtatb  Comubbcb. 

Where  railroad  company  receives  less  for  long  haul  on  ita  own  line  tbaa 
for  short  haul,  though  aggregate  charge  of  connecting  lines,  of  which 
it  1b  one,  ia  more  for  short  haul  than  tor  long  haul,  having  do  power 
to  tegulate  rates  beyond  itA  own  line,  there  ia  no  violation  of  Inter- 
state Commerce  Act.     Allen  et  ai.  v.  Louisville,  etc.,  R.  Co.    880. 

Order  requiring  roada  to  receive  freight  at  certain  point  at  rates  lese  than 
charged  from  Btatioas  on  same  line  nearer  point  of  destination  under 
substantially  similar  circumBtaoces  and  conditions  would  violate 
Interstate  Commerce  Act.  Thatcher  e.  Delaware,  etc.,  Caoal  R.  Co. 
et  al.     637. 

While  violation  of  Interstate  Commerce  Act  might  be  avoided  by  reduction 
of  rates  from  stations  nearer  point  of  destination  than  one  applied 
for,  if  such  reduction  is  not  asked  and  no  evidence  is  produced  from 
which  proper  jates  may  be  determined,  the  commiaBion  cannot  fix 
them  even  if  they  had  power  to  make  rates  generally,  which  they  have 
not.     Thatcher  n.  Delaware,  etc.,  Canal  &  R.  Co.     687. 

Fact  that  railroad  has  water  competition,  without  more,  ia  not  sufficient  to 
justify  lesser  charge  for  greater  distanoe.  Harwell  et  al,  v.  Columbus, 
etc,  R.  Co.  a  al.     840. 

7SSI0HT  TXADTS.    See  PabsekosKS. 

FSIOHT.    See  Hviseiice. 

OBOSS  SABNnOB.    See  Tazatioh. 

HI0ETAT8.     See  Dedicatioh;  Feucxs;  Sfbsd. 


iiz^dbvCoo'^lc 


IHDIOTICRKT. 

North  Cftrolioft  ibitate  proTidiog  for  iDdictment  of  certain  officers  when 
live-atock  is  killed  b?  railroad  in  certain  couaties,  sod  tbat  such  kill- 
ing, having  been  proved,  stiall  be  prima  fade  evidence  of  □egtieencv 
in  an;  indictment  ig  u o const itutio oal ;  not  being  uniform,  auasub- 
Terting  proBumption  of  inoocence.     State  f.  Divine.     574. 

On  indictment  of  superintendent  of  railroad  killing  stock,  special  verdict 
found  him  not  on  train  that  did  the  killing  and  in  no  wa;  connected 
tberevrith ;  special  verdict  ehould  have  fou^  subject  to  judge*'  opin- 
ion on  the  law,  the  defendant  guiltv  or  not  guUty.  State  c,  Divioa. 
574. 


iDJunction  to  compel  the  reception  at  stock-yarda  of  live  freight  canied 
over  complainant's  road  and  consigned  to  defendant'a  jard  waa  re- 
fused, it  being  as  a  matter  of  law  unsettled  whether  defendants  are 
■ubject  to  an;  duty  to  receive  such  freight,  and  the  injunction,  being 
mandator;,  will  not  be  granted  until  final  hearing.  Delavara,  etc, 
R.  Co.  t.  Cent.  Stock  Tud,  etc,  Co.     88. 

□rTEBaTATX  COKKZBGZ. 

Under  aeetion  4  of  the  Intsrsfts  CcHnBum  Law  nllting  to  tba  charges  far 
lon^  and  ibort  haul,  where  the  ciraumstancea  and  conditiona  are  dta- 
similar,  tiiere  is  no  prohibition ;  where  th^  are  similar,  the  prohiUlion 
attaches;  where  there  la  doubt  M  to  the  similarit;,  the;  should  be 
taken  as  substantial!;  similar,  and  in  twor  of  the  object  of  the  law, 
and  in  that  case,  if  Uie  result  to  Che  carrier  ia  injurious,  relief  can  be 
had  oal;  through  conunissioner,  Missouri,  etc.,  R.  «.  Texas,  etc.,  R. 
Co.    78. 

Bttte  statute  levying  tax  on  giosa  receipts  of  railroads  for  oarria^  of 
freight  and  passengers  into,  out  of,  or  through  Btate  is  tax  on  inter- 
state commerce  and  void ;  and  while  tax  on  mone;  actoall;  in  Stato 
after  it  baa  passed  beyond  stage  of  compensation  for  carriage  ia  valid, 
one  on  receipts  for  carriage  speciflcally  ia  on  the  commeroe  out  of 
which  it  arises,  and  if  that  be  interstate,  is  void.  Pargo  s.  Stevens. 
45S. 

Btate  cannot,  under  guise  of  tax  on  busineea  transactions  in  ita  borders, 
impose  a  burden  on  commerce  among  States  when  busineas  to  taxed  is 
itself  interstate  commerce.     Fargo  e.  Stevens.     4S2. 

Where  railroad  company  receives  less  for  long  haul  on  its  own  line  than 
for  short  haul,  though  aggregate  charge  on  connecting  tinea,  of  which 
it  is  one,  is  more  for  short  haul  than  for  long  haul,  having  no  power 
to  regulate  rates  beyond  its  own  line,  there  is  no  violation  of  Inter- 
state Commerce  A.ct.     Alleo  tt  aL  a.  Louisville,  etc.,  R.  Co.    A30, 

To  accomplish  reduction  of  through  rates  over  connecting  roads,  all  roads 
should  be  parties;  and  where  road  first  receiving  freight,  though  tak- 
ina;  compensation  for  all,  baa  no  control  of  rates  beyond  its  own  lines, 
it  unotsufQcient  to  make  it  alone  the  party.  'Allen  at  ai.  n.  Louis- 
ville, etc.,  R.  Co.     630. 

Older  requiring  roads  to  receive  freight  at  certain  point  at  rates  less  thsn 
charged  from  stations  on  ssms  line  nearer  point  of  destination  under 
substantially  similar  circumetancei  and  conditions  would  violate  Inter- 
state Commerce  Act.  Thatcher  e.  Delaware,  etc,  Canal  R.  Co.  «(  oj. 
087. 


^dbvGooglc 


mZBBTATB  COKKEBOS— OmtAHMl 

While  Tiolation  of  Interstate  Commerce  Act  might  be  KToIded  bj  reduction 
of  ratet  from  Htatlons  nearer  point  of  destiaatioa  than  one  applied  for, 
if  such  reductioD  is  Dot  asked  and  no  eTidenCe  is  produced  from 
which  proper  rat«B  may  be  determined,  the  commission  cannot  fix 
tbem  evan  if  the;  bad  power  to  make  rates  generally,  which  the;  have 
not.    Thatcher  e.  Delaware,  etc.,  Canal  &  fi.  Co.     687. 

Dissimilar  ctrcumsUnces  and  conditions  ma;  be  made  out  b;  existence  of 
sctual,  not  possible,  competition  of  controlling  force,  as  where  com- 
peting water  line  can  dictate  rates  in  respect  to  traffic  important  in 
amount  but  not  in  single  direction,  or  on  single  article  or  class  of  arti- 
cles.    Harwell  et  al.  v.  Columbus,  etc.,  R.  Co.  at  al.     640. 

Tact  that  railroad  has  water  competition,  without  more,  is  not  sufficient  to 
justify  lesser  charge  for  greater  distance.  Harwell  et  al.  e.  Oolumbus, 
etc.,  R.  Co.  etal.     040. 

If  relief  asked  would  aSect  unrepresented  communities,  commission  will 
grant  no  order  until  they  and  their  claims  have  been  heard  and  con- 
sidered, and  will  refuse  to  simply  increase  discrimination  as  to  local 
points  unrepresented  b;  reducing  rates  to  one  town  tame'  price  as  to 
two  other  towns.     Harwell  at  al.  v.  Columbus,  etc.,  B.  Co.  et-al.    C40. 

Befnsal  of  through  rates  and  through  bills  of  lading  from  Opelika  for 
New  Orleans  oj  railroad  which  gare  them  on  other  commodities  and 
at  other  points  similarly  ^tuated,  the  connecting  line  being  willing  to 
unite  therein,  violates  the  Interstate  Commerce  Act.  Harwell  et  al. 
0.  Columbus,  etc.,  R.  Co.  et  al.     640. 

AUcompanies  should  be  parties  when  charge  is  made  that  oncmakes  higher 
rates  for  short  hauls  on  its  own  lines  than  le  charged  for  long  hauls 
on  all  lines  together.  Boston  &  A.  R.  Co.  o.  Boston  &  L.  R.  Co. ; 
Vermont  State  BxchknKC  e.  Boston  Jb  L.  R.  Co.     B9S. 

JUilroad  cannot  complain  that  competitor  in  long-haul  traffic  Tiolates  act 
when  not  interested  in  high  charges  on  short-haul  traffic,  not  averring 
connection  between  such  charges  in  competitive  traffic;  nor  can  U 
complain  to  find  out  whether  competing  line  is  justified  in  charges, 
to  make  same  if  those  are  sustained;  but  where  violation  of  act 
amounts  to  public  grievance,  an;  one,  as  one  of  the  public,  withont 
personal  interest,  ma;  complain  on  public  grounds,  including  volun- 
tar;  association  of  persons  engaged  in  industrial  pursuits.     B^ton  & 

A.  R.  Co.  e.  Boston  &L.R.  Co.;    Termont  State  Exchange  e.  Boston 
AL.RCO.    6&S. 

Same  line  intended  in  fourth  section  of  Interstate  Commerce  Act  must  be 
physically  same  and  not  mere  business  arrangement.  Boston  A  A.  R 
Co.  p.  Boston  A  L.  R.  Co.;  Vermont  State  Exchange '«.  Boston  &  L. 

B,  Co.     695. 

Jcdning  of  other  roads  not  charging  less  for  longer  hauls  and  charing  of 
one  or  more  of  number  of  greater  rates  on  shorter   hauls  is  violation 
of  statute,  to  be  justified  by  those  making  greater  charges.     Boston  SB 
A.  R.  Co.  «,  Boston  A  L.  R.  Co. ;  Vermont  State  Exchange  v.  Boston    - 
&  L.  R.  Co.    680. 

It  is  not  a  case  of  dissimilar  circumstances  and  conditions  which  will  su^ 
port  greater  charges  on  shorter  than  on  longer  hauls  where  there  U 
pouible  water  comfietition,  real  competition  for  long  haul  being  by 
railroad ;  or  where  road  competing  for  lone-haul  traffic  is  long  and 
oirenitouB  and  is  obliged  as  against  more  direct  lines  to  lower  rates. 
Boston  &  A.  R.  Co.  e.  Boston  &h.K  Oo. ;  Vermont  State  Exchange 
V.  Boston  &  L.  R.  Co.    S95. 

moziOATIOV.    See  Coktbibutori  Neoligkkob. 


^d  by  Google 


708  INDEX. 

JUDOUIT.    Bee  PLEAcnia. 

Judgment  conflrming  special  asMMtnenta  upon  lui da  benefited  bjptoposed 

Sublic  impTovement  ie  concluBive  ae  to  all  defences  that  might  hiTfl 
een  interposed  thereto;  and  on  application  for  judgment  igUDBt 
such  lands  for  delinquent's  BsseBsnieDts,  it  cannot  be  BhowQ  tbatprop- 
ert;  was  exempt  or  not  benefited,  or  that  ordioaoce  under  which  the; 
were  made  was  inTalid,  such  matters  after  judmnent  of  confirmttios 
being  ra  adpidietUa.     Chicago,  etc.,  R.  Co.  e.  People,     487, 

T.n  *  KBii  LmZB. 
Where  railroad  on  which  stock  waa  killed  is  owned  b;  one  company  and 
leased  byanother  without  special  authodtyfromState,  both  companies 
are  liable  to  owner.     Hisaouri  Pac.  R.  Co.  c.  Dunham.     680. 

LETTEBB  SOGATOBT.    See  Corstitctiorai.  Law. 


Where  an  employee  took  by  mistake  a  coat  which  was  not  his  own  and 
was  discharged  and  his  name  put  upon  the  list  of  discharged  em- 
ployees, which  it  was  customary  to  make  out  and  send  to  each  agent 
of  company  authorized  toemploy  hands,  the  cause  being  stated  in  such 
communication  to  be  for  stealing,  and  an  action  of  libel  was  brought 
against  the  company,  it  was  hdd  to  be  error  to  take  the  case  fnm 
the  jury;  that  though  the  communication  yr$x  prima faeU  privilqed, 
yet  the  case  should  have  been  submitted  to  determine  whether  de- 
fendant or  his  agents  acted  in  good  faith,  there  being  some  evidence 
showing  spite  or  resentment  by  the  agents.  Bacon  e.  HJcbigan  Cent 
R.Co.    807. 


One  traTcUing  on  a  track  not  at  a  crosaing,  and  where  the  rutway  his 
not  licensed  the  public  to  use  its  track,  is  a  trespasser;  and  to  con- 
stitute such  license  it  must  appear  either  expressly  or  by  clear  impli- 
cation that  the  owner  authoriEed  its  use;  and  being  a  trespasser,  ns 
action  will  lie  to  causing  death  unless  by  wilful  act  of  its  emplojaes, 
and  the  theory  of  the  complaint  being  grounded  on  such  wilful  act, 
evidence  showing  the  permissive  use  of  track  is  immateriaL  Palmer 
e,  Chicago,  etc.,  R.  Co.    864, 


Mandamus  lies  to  compel  a  medical  examiner  appointed  nnder  tt  grtatnle 
requL-ing  railroad  employees  to  be  examined  as  to  defective  vision  to 
make  examination  and  grant  a  certificate  should  the  applicant  be 
found  qualified.     Baldwin  e.  Eouns.     tt48. 

lUBTBB  AXB  SBBTAITT.  See  Ltbex;  Tobtb. 
Railroad  employed  a  man  to  furnish  and  superintend  a  steam-engine  to 
pump  water,  the  man  having  sole  management,  and  neither  the  cmd- 
pany  nor  employees  having  any  right  to  interfere  with  the  running  of 
the  engine.  ILtld,  the  man  was  an  independent  contractor,  and  the  com- 
pany was  not  responsible  for  injury  resulting  from  his  negligence;  and 
the  company  having  merely  prescribed  the  end  to  another  who  uodec- 


..i.,Cot><^lc 


^ 


lib,  Google 


XXI}LI&EHCX— OmtfnuAl. 

to  the  jury,  and  nntil  Bnch  case  is  made  oat  there  cut  be  do  question 
of  plaiutiS't  contributory  negligence,  &imnu  e.  Ek)uth  CuoUnt  R. 
Co.     199. 

It  U  the  rftiiroad's  duty  to  cover  culverts  in  itt  yards  within  a  reasonable 
distance  of  switches  wherever  it  would  be  naturaUv  anticipated  that 
brakemen  in  the  proper  diacharge  of  their  duty  would  be  apt  to  go  in 
making  couplineB,  and  it  is  for  the  jury  to  determine  under  ths  facts 
if  the  eierciae  of  due  care  required  a  railroad  to  cover  a  certain  cul- 
vert.   PranltliQE.  Winona,  etc.,  R.  Co.     211. 

If  the  negligence  of  a  matter  combine!  with  the  negligence  of  a  fellow- 
■ervant,  and  the  two  contribute  to  the  injury  of  another  servant,  the 
master  is  liable.     Franklin  s  Winona,  etc.,  R.  Co.     311. 

There  is  no  rule  of  law  to  restrict  railroads  aa  to  the  curves  they  shall  use 
in  their  freight  stations  and  yards  where  the  safety  of  passengers  and 
of  the  public  is  not  involved,  and  the  engineering  queation  as  to  the 

8 roper  curves  in  such  places  is  not  for  the  jury;  and  the  risk  arising 
'om  the  nature  of  the  curva  and  construction  of  cars  is  one  incidental 
to  employment,  and  the  care  and  caution  demanded  by  the  perils  of 
the  business  must  be  exercised  by  the  employee.  Tuttle  e.  Detroit, 
etc.,  R.  Co.     S16. 

A  servant,  in  the  execution  of  his  master's  duties,  who  receive*  aa  injury 
which  befalls  him  from  one  of  the  riska  incident  to  the  business  cannot 
hold  the  master  responsible,  but  must  bear  the  consequencea  himself. 
Tuttle  e.  Detroit,  etc.,  R.  Co.    216. 

£  is  a  proper  instruction  to  sa;  that  the  ordinary  care  demanded  of  the 
rauniad  is  that  which  ordioarily  prudent  men  in  operating  a  railroad 
generally  exercise  under  similar  circumstances  for  their  servants'  pro- 
tection ;  and  where  the  plaintiff  was  killed  owing  to  the  fact  that  a 
guard-rail  was  unblocked,  of  which  fact  he  had  knowledge,  it  is  for 
the  jury  to  say  whether  he  was  acting  aa  a  prudent  man  would  under 
qimiiar  circumstances;  and  the  knowledge  of  the  unsafe  condition  of 
such  guard-rail,  if  it  was  unsafe,  by  the  deceased,  would  not  defeat  a 
recovery  if  it  was  not  so  dangerous  as  to  threaten  immediate  injury, 
or  if  he  might  have  supposed  it  asfe  hy  the  use  of  care,  and  that  he 
did  use  all  the  care  incident  to  the  situation.  Huhm  v.  Hiasonri 
Pacific  R.  Co.    2ai. 

yfben  the  plaintifFa  father,  a  fireman,  was  killed  by  his  engine  b«ng 
thrown  from  the  track,  a  recent  rain  having  undermined  the  embank- 
ment, and  it  appeared  that  he  was  warned  against  danger  from  water 
at  that  place  but  over  which  a  long  train  had  passed  shortly  before, 
it  was  ne!d  that  the  giving  way  of  the  track  was  pritnafaei*  evi- 
dence of  negligence  in  its  construction;  and  the  evidence  as  to  the 
rain  being  extraordinary  being  conflicting,  the  case  was  properly  sent 
to  the  jury;  and  the  warning  was  only  evidence  of  contributory 
negligence  for  the  jury.     Btoher  v.  St.  Louis,  etc.,  R.  Co.    229. 

The  loBs  of  a  parent's  care  in  education,  maintenance,  etc,  of  a  child  have 
an  appreciable  value  which  the  jury  may  consider;  and  though  it  i? 
not  shown  what  the  earnings  of  the  father  were  at  the  time  of  his 
death,  the  jury  is  not  confined  to  nominal  damages,  nor  can  they 
award  vindictive  or  exemplary  damages,  there  being  no  proof  of 
malicious  or  gross  negligence  or  of  ag^avating  circumstances;  and 
an  instruction  inviting  the  consideration  of  such  (nrcumstances  is 
erroneous.     Stoher  n.  St.  Louis,  etc.,  R.  Co.     229. 

Where  an  engineer  was  injured  by  the  collision  of  his  engine  with  a  flat 
car  whi<£  bad  run  on  to  the  main  track,  there  being  nothing  to  show 


^d  by  Google 


that  the  Bide  track  waa  not  in  proper  condition  or  that  ordinary  care 
had  not  been  obserred  in  placing  the  car  on  the  siding,  defendant  was 
entitled  to  an  instrnction  that  bd  omiuion  to  provide  the  fiat  car 
with  brakea  or  the  side  track  with  blocks  is  not  actionable  negligence ; 
and  also  that  the  ptaintiS  could  not  recover  even  if  the  jury  believed 
that  if  there  had  been  Btoprblocks  the  car  would  not  have  run  on  to 
the  main  track;  but  it  waa  not  entitled  to  an  instruction  that  if  the 
jury  shall  be  in  doubt  whether  the  car  was  there  by  a  malicious  act  of 
some  person,  or  how  otherwise,  the  plaintifi  could  notrecover.  BewitC 
V.  Flint,  etc.,  R.  Co.    349. 

Hie  question  of  due  care  is  ordinarily  for  the  jury,  but  it  is  for  the  court 
to  determine  whether  the  proof  is  sufficient  to  authorize  the  jury  to 
find  due  care.     Wormell  c.  Maine  Cent.  R.  Go.     273. 

"Wliere  a  brakeman  on  a  freight  train  was  put  on  a  passenger  train,  whose 
air-brakes  were  out  of  order,  to  use  the  hand-brakes,  and  at  night  on 
a  descending  grade,  the  platforms  being  covered  with  ice,  was  ^rown 
off  and  killed,  there  is  do  such  negligence  as  to  take  the  case  to  the 
jury.    Adkins  v.  Atlanta,  etc,  R.  Co.    261. 

Under  the  North  Carolina  Code,  issues  on  every  material  fact  controverted 
hy  the  pleadings  are  not  necessarily  submitted,  but  the  principal  issues 
raised  by  the  constituted  allegations  of  fact  are ;  and  in  an  action  to  re- 
cover for  personal  injuries,  the  court  should  submit  to  the  jury  whether 
the  plaintiff  was  injured  by  defendant's  negligence,  and,  if  so,  whether 
he  contributed  to  such  negligence,  without  confusing  the  juij  ^  sub- 
mitting evidential  facta  averred  and  denied  by  the  pteadings.  Patton 
e.  Western,  etc.,  R.  Co.     298. 

Ihilroads  are  not  liable  to  employees  as  to  passengers;  and  in  an  action  by  an 
employee  or  its  representatives  against  the  company,  it  must  be  shown 
that  at  th^  time  of  the  injury  he  was  free  from  fault,  or  the  company 
was  in  fault,  beforeany  presumption  of  the  negligence  will  arise  against 
it;  and  the  rule  which  allows  a  partial  recovery  notwithstanding  the 
contributory  negliffenoe  of  the  person  injured  does  not  apply  to  a  case 
of  an  injury  sustained  by  an  employee.  E.  Tennessee,  etc,  S.  Co.  o. 
Maloy.    80a. 

Where  plaintiff's  intestate  was  somewhat  deaf  and  both  plaintiff  and  the 
intestate  were  walking  on  a  track,  plaintiff  observed  the  approach- 
ing train  and  endeavored  to  signal  to  hia  intestate,  who  did  not  ob- 
serve the  train  or  the  signals  and  "was  killed,  and  the  engineer  testi- 
fied positively  that  be  did  not  see  the  signals,  and  the  plaintiff  that 
he  did  not  know  whether  he  did  or  not,  it  was  held  that  the  court 
properly  sustained  a  demurrer  to  the  evidence,  and  whether  the  train 
ran  at  a  furious  speed  is  immaterial  unless  as  an  intentional  or  wilful 
act,  decedent's  negligence  debarring  a  recovery  on  that  ground. 
Palmer  e.  Chica^,  etc.,  R.  Co.     SS4. 

A  person  in  full^possesGion  of  his  senses  but  subject  to  absent-mindedness 
was  killed  while  on  company's  track  without  permission,  though  ac- 
customed with  others  t«  walk  there.  The  engineer,  half  a  mile  off, 
whistled,  and  he  did  so  several  times,  and  when  close  he  continued 
sounding  and  also  applied  the  brakes  and  endeavored  to  slop  the 
train.  Deceased  had  ample  time  to  get  out  of  the  way.  Sdd,  a  verdict 
was  properly  directed  for  the  defendant,  and  deceased  being  a  tres- 
passer, and  being  guilty  of  such  contributory  negligence,  would  defeat 
a  recovery  unless  proven  that  the  engineer  ran  the  train  recklessly 
upon  him,  having  seen  the  danger  but  doing  nothing  to  avoid  it. 
Baumeister  e.  Grand  Rapids,  etc.,  R.  Co.     S76. 


^d  by  Google 


TOO  INDEX. 

VSaLtaKBCA—Cmiintud.  ' 

Wbere  plaintiff,  standing  od  a  aide  track  between  two  can  talking  to  aome 
one  in  the  cars,  wu  injured  bj  being  cau^tit,  caused  b;  one  of  the  cars 
being  set  io  motion  bj  a  backing  engine,  it  was  held  that  the  Alabama 
Code  providinK  for  punitive  damages  in  case  of  death  caused  bf  another's 
wrongful  act  does  not  apply,  nor  did  the  rule  of  law  requiring  trains 
backing  to  bare  a  watchman  on  the  lookout;  but  the  case  is  governed 
b;  the  Alabama  Code  requiring  a  railroad  putting  a  treiQ  in  motion 
to  blow  a  nbiatle  or  ring  its  bell  continuously,  and  the  burden  of 
proof  ia  on  the  company  Co  show  whether  it  so  acted,  and  plaintiS's 
action  in  so  placing  herself  wbere  she  did  was  such  contributory  negli- 
gence u  te  defeat  recovery.     E.  Tenneaaee,  etc.,  R.  Co.  c.King.     885. 

Where  a  person  left  the  main  track  to  avoid  an  approaching  train  and 
crossed  to  a  side  track,  and  was  injured  by  the  awttctiing  of  a  car 
from  the  train  to  the  side  track,  and  the  en^neer  whistled  and  shouted 
but  was  not  heard,  and  conductor-  on  detached  car  shouted  and  nn 
to  put  on  the  brakes  but  was  too  late,  it  was  held  that  there  was  suf- 
ficient evidence  of  negligence  to  take  the  case  to  the  jury.  Louisville, 
etc.,  R.  Co.  n.  Colman.     890. 

Where  the  plaintiff,  having  gotten  off  the  track  down  an  embankment  to 
avoid  an  approaching  train,  was  injured  by  being  struck  by  a  cow 
coming  upon  the  track  aa  the  train  arrived  and  being  thrown  upon 
the  plaintiff,  who  was  not  seen  by  the  engineer  owing  to  the  embank- 
ment, and  the  engineer  having  endeavored  to  stop  the  train  on  seeing 
the  cow,  hdd,  that  if  the  animal  was  thrown  by  negligence  of  those  in 
charge  of  the  train,  the  injury  was  proximately  caused  by  such  negli- 
gence; and  where  the  statute  requires  the  engineer  seeing  an  obstruc- 
tion to  stop  the  tnun.  by  use  of  all  means  in  hia  power  known  to  skilful 
engineers,  an  instruction  authorizing  a  finding  tnat  he  is  guilty  of  neg- 
ligence in  not  attempting  to  stop  on  seeing  the  cow  near  the  track,  or 
if  it  was  so  near  the  train  that  the  use  of  all  means  in  his  power 
would  not  have  stopped  it  before  striking,  is  erroneous,  and  also  one 
which,  requiring  use  of  all  means  known  to  skilful  engineers,  omits  the 
statutory  element  that  they  must  be  within  bis  power.  Alabama  R. 
Co.  f>.  Chapman.     894. 

Walking  on  a  railroad  right  of  way  is  not  negligence  p«r  w,  especially  in  & 
town  or  city  where  passing  or  repassing  persons  are  frequent.  Tbe 
question  of  due  care  and  contributory  negligence  on  plaintifTs  part  is 
one  of  fact.     Alabama,  etc.,  R.  Co.  v.  Chapman.     894. 

Where  engineer  supposed  a  distant  object  on  the  track  to  be  a  pig,  and  only 
discovered  it  to  be  a  child  when  too  late  to  stop,  the  charge  that  an 
object  between  the  ties  not  more  than  two  or  three  inches  above  is  not 
ordinarily  one  indicating  danger  or  calling  for  increased  diligence,  or 
would  the  engineer  be  required  to  slow  down  the  speed  until  he  dis- 
covered that  It  would  probably  endanger  the  train  or  the  passengers, 
or  would  if  human  life  be  in  danger  itself,  was  properly  refused. 
Keyserit.  Chicago,  etc.,  R.  Co.     899. 

An  engineer  running  a  train  in  daylight  has  a  right  to  assume  that  an 
object  will  perceive  the  train  and  will  leave  the  track  in  time,  and  may 
run  on  without  negligence  until  he  discovers  that  it  is  heedless  of  the 
danger;  and  is  not  bound  to  expect  helpless  infants  on  a  track;  nor  is 
the  corporation  responsible  for  the  engineer's  error  of  judgment  as  to 
the  speed  of  the  train  and  his  ability  to  stop  it,  all  he  is  bound  to  do 
after  discovery  of  peril  being  to  use  reasonable  diligence  and  care  to 
avert  it.    ChrysTnl  c.  Troy,  etc.,  B.  Co.     411. 

Where  an  infant  of  !7  months  escaped  froib  its  mother's  bouse  and  went 


^d  by  Google 


"XXKCtBSXtUt—Oontimied. 

MfOB  e,  track  and  wu  injured,  Rod  it  appe&red  that  the  child  reached 
-the  track  a  ahort  time  before  the  accident,  and  the  engineer  immedi- 
ately upon  Keeing  it  applied  brakes  and  reTersed  bit  en^ne  and  did 
hXi  he  could  to  atop  the  train,  but  could  not  do  so  in  time,  and  that 
being  the  only  negligence  complained  of,  a  Bubmiuion  to  the  jury  of 
>  the  question  of  negligence  was  error.  Chryital  v.  Tioj,  etc.,  R. 
Co.     411. 

ATailroad>  having  a  legal  right  to  a  clear  track  except  at  croasing,  owes 
no  duty  to  a  trespasser  walking  from  one  station  to  another  until  be 
is  seen,  and  eren  then  it  may  b«  assumed  that  he  will  get  oS  the  track 
io  time  until  it  can  be  seen  that  his  condition  or  surroundiog  circum- 
stauces  prevent  him ;  and  the  company's  liability  was  measured  by 
its  employees'  conduct  .after  they  became  aware  of  tiis  presence  there, 
the  trespasser's  contributory  negli^nce  defeating  a  recovery  on  the 
ground  of  their  negligence  in  failing  to  discover  him.  Bt.  Louis, 
etc.,  B.  Co.,  V.  Monday.     424. 

Where  factt  are  undisputed  and  lead  to  but  one  inference,  the  question 
of  negli^nce  is  one  ot  law  to  be  determined  by  the  court;  and  one 
attempting  to  cross  between  cars  which  he  knows  or  might  knov 
are  likely  to  move  is  negligent  and  cannot  recover  for  Injuries  re- 
ceived in  Bunh  attempt,  and,  the  danger  being  obvious,  the  directions 
of  a  brakeman  are  no  justiflcation  for  such  attempt.  Lake  Shore, 
etc.,  R.  Co.  V.  Pinchin.     4*8. 

Plaintiff  passing  along  a  street  where  defendant's  track  lay,  and  when 
the  public  had  a  right  to  travel,  caught  bis  foot  in  a  rail  and,  being 
unable  to  extricate  It,  was  run  orer.  The  track  was  ne^li^ntly  con- 
structed and  the  train  negligently  run.  Said,  that  plaintiff  was  not 
a  trespasser  who  had  no  right  to  exact  care  from  defendant,  and  the 
latter  was  liable.  Louisville,  etc.,  R.  Co.  o.  Phillips.  4S3. 
'  Where  a  trespasser  upon  a  railroad  track  is  killed  by  a  train,  company  Is 
only  responrible  if  death  is  caused  wilfully  or  purposely  by  its  em- 
'Dvees;  and  this  not  appearing,  either  in  ^e  Issues  or  the  proof,  the 
rdict  should  be  directed  for  defendant.  Gregory  e.  Cleveland, 
etc;,  R  Co.     440. 

Imployees  in  charge  of  a  train  are  not  liound  to  stop  whenever  they  see  a 
person  on  the  track;  and  while  they  may  not  wantonly  injure,  they 
may  assume  that  one  on  tbe  track  where  ttiere  is  no  difficulty  in  leav- 
ing it  will  get  off  before  he  is  reached;  if  they  see  him  where  he 
cannot  readily  leave  in  time,  or  if  they  discover  that  he  is  unaware  of 
his  peril,  they  are  bound  to  stop  if  possible ;  but  a  railroad  company 
Is  not  responsible  on  account  of  their  employees  not  seeing  a  person 
who  is  in  a  place  where  ha  has  no  right  to  be.  Mobile,  etc.,  R.  Co. 
V.  Shroud.     448. 

The  California  Code  requiring  that  a  railroad  shall  be  liable  for  injuries 
sustained  from  cars  running  faster  than  six  miles  an  hour  in  any  city, 
town,  or  road,  does  not  impose  absolute  liability  for  injury  done 
while  violating  this  statute,  but  if  it  could  have  been  avoided  by  ez> 
ercise  of  ordinary  care  on  the  part  of  the  individual  the  company  is 
not  liable.     Mobile,  etc.,  R.  Co.  v.  Btroud.     448. 

Where  one  walking  home  on  a  track,  to  avoid  an  approaching  train  gets 
on  another  parallel  track  in  front  of  an  engine  approaching  at  the 
rate  of  fifteen  to  thirty  miles  an  hour,  in  plain  view,  and  walks  up  tbe 
latter  track  till  overtaken  and  killed,  he  is  guilty  of  contributory 
negligence,  though  he  was  partially  deaf  and  did  not  observe  the 
engine;  and  bis  widow  cannot  recover,  though'  the  engine  in  violation 
81  A.  4  B.  R.  Gas.— « 


verdici 


^dbvGooglc 


HXQLISEFOE—  Continued. 

at  tbe  statute  waa  ruDclD^  fsster  tbaa  six  miles  an  bonr  in  tbe  citj 
without  signalling,' and  neither  the  eneineerDor  brakeman  wu  watch- 
ing, but  doing  Bomething  else.     Hobife,  etc.,  R.  Co.  «,  Btroud.     44S. 

■OnOI.    See  Mastxk  akd  Bkrtadt. 


Where  a  statute  proTides  that  a  rulroad  must  give  notice  and  make  - 
KDort  of  injuilee  under  penalty,  held,  assuming  that  negligence  and 
n-compliance  with  the  statute  could  be  aTsiled  of  in  a  suit  b;  the 


representatires  of  a  brakeman  who  waa  thrown  from  a  t 
frozen  to  death,  that  the  fact  that  he  wa<  known  to  have  been  on  the 
train  at  a  certain  point,  and  first  missed  many  miles  distant,  did  not 
aSect  the  company  with  knowledge  that  he  had  been  either  killed  or 
injured  between  those  points,  there  being  no  evidence  that  an  acci- 
dent had  occurred,  or  that  there  wag  anything  unusual  in  the  run- 
Ding  of  the  train.  Adkins  e.  Atlanta,  etc.,  R.  Co.  281. 
Ad  instruction  that  the  ruiec  of  tbe  company  forbade  an  engineer  to  allow 
a  person  not  an  employee  to  ride  on  the  engine,  that  tbe  deceased 
was  not  rightfully  there,  it  appearing  tiiat  he  wa*  entitled  to  trans- 

SortatioD  and  had  got  on  by  engineer's  directions,  was  asked  for  by 
efeudant  &ld,  tue  regulation  of  railway  employees  does  not  affect 
a  person  without  notice,  nor  need  he  inquire  as  to  tbe  extent  of  the 
servants'  authority.  Lake  Shore,  etc.,  R.  Co.  t.  Brown. .  61. 
Tbe  contract  signed  by  a  brakeman,  advising  him  that  tbe  uncoupling  of 
moving  cars  is  dangerous  and  ia  forbidden,  is  admissible,  where  a 
brakeman  ia  injured  endeavoring  so  to  couple  cars,  to  show  notice  of 
the  danf^r,  existence  of  the  rule,  and  notice  of  it  to  the  brakeman ;  and 

Slaintiff's  offer  to  admit  it  for  the  purpose  of  ahowing  notice  of  the 
anger  will  not  cure  its  erroneous  exclusion,  Sedgewick  e.  lUiaois 
R.  Co.     907. 

onSTALITATIOV.    Bee  AeaBBenKKT. 

VABIHT  Ant  CEIIO.  Bee  KKQUOBiraK. 
Tlie  fact  that  the,  mother  of  the  person  killed  lived  apart  from  her  hus- 
band and  was  supported  by  the  deceased,  her  minor  bod,  will  not 
preclude  an  action  by  her  for  her  eon's  death,  the  action  being  not 
only  in  the  name  of  the  mother  but  in  the  name  of  the  father  for  her 
use.     E.  Tennessee, 'etc.,  R.  Co,  e.  Maloy.     SSS. 

7ABTIZB  TO  AOTIOn. 

The  fact  that  the  mother  of  the  person  killed  lived  ajmrt  from  her  fans- 
band  and  was  supported  by  the  deceased,  her  minor  son,  will  not 
preclude  an  action  by  her  for  her  son's  death,  the  action  being  not 
only  in  the  name  of  the  mother  but  in  the  name  of  the  father  for  her 
use.     E.  Tennessee,  etc..  R.  Co.  v.  Maloy.     303. 

Under  the  Texas  statute  any  one  of  parties  entitled  to  damages  may  bring 
an  action  for  the  benefit  of  all;  and  in  an  action  by  wife  to  recover 
daraaKes  for  ber  husband's  death,  the  petition  alleging  a  child  aad 
claiming  damages  for  it  also,  it  is  not  error  to  render  judgment  for 
the  benefit  of  wife  and  child.    Texas,  etc.,  R,  Co,  o.  Berry,     147. 

To  accomplish  reductioD  of  through  rates  over  connecting  roads  all  road« 
should  be  parties;  and  where  road  first  receiving  fre^ht,  though  tak- 
ing compensation  for  all,  has  no  control  of  rates  beyond  its  own  lines. 


i,z.dbvGoogle 


INDEX,  723 

TABTnS  TO  AOTIOHS-Om^ivwI. 

it  is  not  sufficient  to  moke  it  Alone  tfie  party.  Allen  etaL  v.  Loui»- 
Tillo,  etc.,  B.  Co.  680. 
All  companies  sbould  be  parties  irhen  charge  is  made  that  one  makes 
higher  rates  for  short  hauls  on  its  own  lines  than  is  charged  for  long 
on  all  lines  together.  Boston  &  A.  R.  Co.  c.  Boston  A  L.  R.  Co.; 
Vermont  State  Eichange  e.  Boston  A  L.  B.  Co.    665. 

fABEEVQEXB. 

A  person  directed  by  a  company's  agent,  whose  doty  it  was  to  direct 
passengers  what  trains  tliey  should  enter,  to  take  passage  on  a  freight 
train  became  thereupon  a  passenger,  though  the  company's  rule,  un- 
known to  plaintiS,  forbade  passengers  riding  on  the  train;  and  the 
degree  of  care  was  due  him,  once  received,  as  to  passengers   ~~ 

"T  trains,  except  that  by  taking  freigh" '""'"  ' 

conduct  of  Bucb  a  train  managed  1 
hands.     HcQee  t.  HiSsouri  Pacific  R.  Co. 

!t  is  negligence  (or  a  conductor  not  to  warn  passengers  in  a  caboose  of 
the  dangerous  character  of  the  surroundings  on  the  stoppage  of  the 
train  at  an  unusual  and  unsafe  place  on  a  dark  night,  when  the 
light  bad  been  taken  away,  the  station  harins  been  announced;  and 
the  slowing  up  and  stoppage  of  the  train,  the  Blowing  of  the  whistle, 
the  announcement  of  the  station,  the  conductor  and  brakeman  leaving 
the  caboose  with  the  light,  and  tlie  detachment  of  the  engine,  constf 
tute  a  direction  to  paasengera  to  alight  without  negligence  on  their 
part.     HcOee  e.  Hiasouri  Pacific  R.  Co.     1. 

Xvidence  of  the  usage  of  railroad  freisht  trains  to  carry  passengers  and  to 
prove  the  uiual  stopping  place,  where  the  injury  was  alleged  to  have 
been  occasioned  by  stopping  at  an  unusual  place,  was  admissible. 
McGee  e.  Missouri  Pacific  R.  Co.     1. 

A  man  nineteen  years  of  age  purchased  a  ticket  to  ride  upon  a  freight 
train.  There  was  no  one  to  instruct  him  how  to  get  on  the  train;  the 
train  arrived  and  stopped  with  the  catxiose  near  enough  to  walk  to 
it  and  get  on;  plaintiSdid  not  do  so;  conductor  gave  the  signal  for 
starting,  and  the  plaintiff  understood  it;  as  the  train  approached  the 
atation,  moving  slowly,  plaintifi,  without  waiting  for  tlie  caboose,  at- 
tempted to  get  on  the  first  car  behind  the  engine,  which  was  a  stock 
car,  having  nothing  but  an  iron  ladder  on  the  side;  plaintiff  fell 
between  the  cars  and  the  platform  and  was  injured.  Held,  that  the 
company  is  not  guilty  of  negligence,  and  the  plaintiff  cannot  recover. 
Warren  o.  Southern  Kan-  R.  Co.      10, 

Where  passenger  sustained  injury  by  falling  over  a  board  acrosa  the  car 
aisle  placed  there  by  the  brakeman  to  light  the  lamps,  plaintiff  can- 
not ask  brakeman  in  crosseiaminatlon  to  state  a  conveisation  held 
after  the  accident  to  the  effect  that  he  had  forgotten  to  remove  the 
board,  and  it  was  his  fault;  nor  can  plaintiff  testify  to  such  conversa- 
tion in  face  of  brakeman's  denial ;  nor  could  plaintiff  obtain  the  ben- 
efit of  euch  evidence  by  cross-examination,  and,  on  brakeman's  denial, 
seek  to  prove  the  conversation  under  the  guise  of  contradicting  the 
brakeman,  there^ing  nntliing  in  the  alleged  conversation  which  im- 
peached or  contradicted  him.    Sherman  e.  Delaware,  etc.,  R,  Co.    15 

The  holder  of  a  coupon  mileage  book  tore  out  eoms  of  the  coupons  ami 
gave  the  book  to  an  employee,  who  used  it;  the  holder  took  a  subse- 
quent train  and  offered  the  coupons  for  passage;  the  cover  of  the 
book  contained  the  company's  regulation  that  the  coupons  should  be 
void  if  detached  unless  by  the  conductor,  and  that  coupons  detached 

DiplizsdbvGoO^IC 


TAmxsBEMa—Ootutruua, 

bj  the  paasenger  would  be  refused  and  fsre  collected  unless  tbe 
book  ir«a  produced;  the  regulations  were  unknown  to  tbe  plaintifi. 
Tbe  conductor  refused  to  rtceive  tbe  coupons,  and  caused  plaintiff  to 
be  arrested  fur  fraudulently  evading  hie  fare.  Plaintiff  was  aubae- 
quently  dischar^d.  Meld,  eridence  of  conductor's  accepting  similar 
coupons  under  Bimilar  circumstances  was  inadmissible,  except  to  ■pro^e 
a  custom;  and  a  request  for  a  ruling  that  the  evasion  for  which  the 
passenger  might  be  lawfully  ejected  must  be  ■  fraudulent  one,  with  an 
intention  to  defraud  the  company,  was  rightly  refused,  the  court  de* 
cliniuK  to  construe  the  words  "ejected  or  removed"  as  meaning  "tc- 
moved  by  arrest "  or  "arrested,"  in  a  suit  for  assault  or  false  imprison- 
meut  and  malicious  prosecution.    Harsball  c.  Boston,  etc.,  R.  Co.    18. 

Oommon  carriers  are  held  to  the  highest  reasonable  and  practical  skill 
and  diligence  in  regard  to  machinerj  and  competency  of  servants. 
Other  dangers  depend  on  tbe  circumstances,  and  in  many  cases  ordinary 
care  and  diligence  such  as  any  prudent  person  would  exercise  for  his 
own  safety  will  exonerate  from  liability.  In  no  case  must  tbe  car- 
rier expose  tbe  passenger  to  extra-hazardous  danger  that  might  be 
discovered  or  anticipated  by  reasonable  practical  care  and  diligence. 
Chicago,  etc.,  R.  Co.  e.  Piilsbury.     24. 

Where  a  passenger  is  injured  by  the  invasion  of  a  mob  on  tbe  trun  in 
search  of  .non-union  laborers,  the  train  having  Tolnntaril;  been 
■topped  at  a  certain  place,  not  a  regular  station,  in  the  midst  of  the 
nob,  and  the  same  laborers  having  been  assailed  previously  in  an- 
other car,  the  lailrosd  is  liable,  and  the  offensive  persons  should  have 
been  placed  at  least  in  a  separate  car,  notwithstanding  the  officers  of 
the  road  had  no  knowledge  of  tbe  proposed  attack.  Chicago,  etc, 
R.  Co.  D.  PilhbuT7.    24. 

In  tbe  case  of  an  injury  to  a  passenger  by  an  attack  of  a  mob  on  a  train, 
the  instruction  of  the  court  that  the  railroad  mnst  exercise  the  utmoat 
care,  skill,  and  diligence  for  the  prevention  of  any  danger  whatever,  bo 
far  as  it  with  sucE  care  could  have  been  reasonably  foreseen  and 
prevented,  is  proper.     Chicago,  etc.,  R.  Co.  e.  Pillsbnry.     24. 

One  who  purchases  a  ticket  but  b;  mistake  takes  the  wrong  train  ia 
nevertheless  a  passenger  for  whose  protection  a  high  degree  of  care 
must  be  used;  and  obedience  by  apaasenger  to  conductor's  directions, 
within  tbe  scope  of  his  authority,  which  do  not  expose  the  passenger 
to  an  apparent  or  known  danger  which  a  prudent  person  would  not 
incur,  is  not  contribut< iry  negligence;  but  such  directions  cannot  be 
relied  upon  where  they  expose  htm  to  a  risk  that  a  prudent  man  would 
not  assume.     Cincinnati,  etc.,  R.  Co,  e.  Carper.     SB. 

A  conductor  hsa  no  authority  to  instruct  a  ticket-holder,  by  mistake  on 
a  wrong  train,  as  to  what  road  he  should  lake  to  get  on  the  proper 
train  ;  and  where  the  passenger,  taking  the  advice,  leaves  the 
train  and  proceeds  in  a  contrary  direction,  tbe  company  is  not  re- 
Bponaible  for  his  accidental  killing  by  a  passing  train  while  on  the 
track  in'  pursuance  of  his  instructions.  Ciacinnati,  etc.,  R.  Co.  e. 
Carper.     SB. 

Under  an  allegation  that  plaintiff  received  her  injury  by  jumping  from 
the  train  in  motion,  out  was  Ruilty  of  no  contributor;  negligent, 
she  can  prove  that  she  jumped  with  the  consent  of  the  person  in 
charge,  which  would  relieve  her  of  liability  uuder  the  Iowa  statute 
making  it  a  misdemeanor  to  get  off  the  car  Id  motion  without  content 
of  the  person  in  charge.     Baben  o.  Central  Iowa  R.  Co.     4&. 

Independent  of  statute,  jumping  from  a  train  in  motion  is  not  always 


^dbyGoOglc 


IHDEX.  725 

lAaesaoE^s—Coatinutd. 

negligence,  but  it  is  a  question  of  fact  for  the  jury  to  determine  from 
all  the  circumBtBDcea.     Rabea  c.  Central  Iowa  R.  Co.     4S. 

Where  the  statute  provideg  that  if  an;  person  act  aa  etnplojee  or  officer 
of  the  law  in  discharge  of  his  dutj  shall  get  on  or  oft  the  train  in 
motion  without  the  consent  of  the  person  in  charge,  he  shall  be 
guilty  of  a  misdemeanor.  One  of  these  facts  must  be  proved  in  an 
acttou  to  recover  damages  for  injuries  received  in  jumping  from  a 
moving  train,  and  the  inference  of  consent  from  the  acts  of  the  con- 
ductor is  for  the  jury.     Raben  d.  Central  Iowa  R.  Co.     45. 

Railroad  company  is  aot  bound  to  render  its  passengers  perMmal  aaaUt- 
ance  in  alighting  from  its  trains  when  they  are  in  proper  condition, 
and  euitable  ana  safe  means  are  provided  therefor,  and  an  instruc- 
tion to  the  jury  to  the  efiect  that  they  are  ia  erroneout.  Raben  «. 
Central  Iowa  R.  Co.    45. 

It  Is  the  duty  of  the  court,  on  defendant's  request,  to  instruct  that  if  the 
jury  should  find  that  plaintiff  was  at  all  under  the  influence  of  liquor, 
and  that  that  fact  contributed  to  produce  the  injury,  he  could  not 
recover  damages  sustained  while  getting  oS  the  train  from  the  sud- 
dea  starting,  it  appearing  that  he  had  been  drinking.  Strand  e. 
Chicago,  etc.,  R.  Co.     54. 

Employees  of  a  railroad  are  only  bound  to  such  care  towards  a  drunken 
man  as  towards  a  sober  one,  if  igoorant  of  his  condition ;  and  if  plain- 
tiff's intoxication  is  such  ae  to  interfere  at  all  with  his  diligence  or 
care  in  getting  oS  the  train,  and  this  effect,  however  slight,  contrib- 
uted to  the  injury,  he  cannot  recover,  Strand  e,  Chicago,  etc.,  R. 
Co.     54. 

It  appearing  that  deceased  was  entitled  to  transportation,  that  by  invita- 
tion and  direction  of  company's  servants  he  got  upon  the  footboard 
of  the  engine,  from  which  he  was  thrown  and  killed,  it  was  held  that 
if  the  place  which  he  was  directed  to  take  was  one  of  more  than 
ordinary  peril  the  railroad's  servants  muat  exercise  a  degree  of  care 
corresponding  to  the  danger,  and.  the  passenger  being  on  the  train  by 
their  invitation,  they  are  bound  to  operate  it  with  due  care  and  at- 
tention for  his  sake.    Lake  Shore,  etc.,  B.  Co.  e.  Brown.    61. 

"Where  the  person  is  entitled  to  transportation,  and  the  only  means  were 

the  top  of  a  stock  car  or  the  engine,  and  by  engineer's  direction  he 

.  got  on  the  footboard  of  the  engine,    an  instruction  that  common 

{irudence  dictated  that  he  should  put  himself  in  the  safest  place,  and 
f  the  engine  was  not  as  safe  as  the  car  he  was  guilty  of  negligence, 
was  properly  refused,  as  it  ignored  the  servants'  directions  and  their 
negligence  in  the  management  of  the  engine.  Lake  Shore,  etc.,  B. 
Co.  e.  Brown,     01. 

An  instruction  that  the  rules  of  the  company  forbade  an  engineer  to  allow 
a  person  not  an  employee  to  ride  on  the  engine,  that  the  deceased 
was  not  rightfully  there,  it  appearing  that  he  was  entitled  to  trans- 
portation, and  had  got  on  by  engineer's  directions,  was  asked  for  by 
defendant.  £btd,  the  regulation  of  railway  employees  does  not  affect 
a  person  without  notice,  nor  need  he  inquire  as  to  the  extent  of  the 
servants'  authority.     Lake  Shore,  etc.,  R.  Co.  «.  Brown.     61. 

A  declaration  alleging  that  deceased,  a  shipper  of  stock,  bad  the  right  to 
transportation,  and  was  rightfully  by  engineer's  directions  on  the 
engine  in  transit,  is  broad  enough  to  cover  the  admisBion  of  evidence 
showing  a  custom  for  such  transportation,  and  to  admit  any  legiti- 
'  mate  proof  of  deceased's  right  to  be  on  the  engine ;  and  the  evidence 

waa  competent  as  showing  eervanta'  authority  to  carry  him,  and  that 


^d  by  Google 


be  wu  K  puaeager  for  reward.     Lake  Btaon,  etc.,  R.  Co.  e.  Brown. 

Railroad  canDOt  e«cape  liabilitj  for  ao  injur;  to  a  paaaeager  oa  an  engine- 
by  KrvBDt's  direction,  the  injurj  resulting  from  the  aerraot's  negli- 
gence, by  ahowiog  that  he  might  have  gone  some  other  way.  Lake 
Shore,  etc.,  R.  Co.  t.  Brown,     fll. 

InitructioDS  that  if  the  deceased  was  rightfully  on  the  eogine  by  servaot'l 
invitBtian,  that  he  used  ordinary  care  and  was  injured  by  servant's 
carelessness,  there  could  be  a  recovery,  and  if  the  jury  did  not  believe 
that  a  mau  of  ordinary  care  and  prudence  would  ride  on  an  engine  as 
the  deceased  did  there  could  be  no  recovery,  are  not  erroneous,  and 
do  not  mislead  the  jury  into  understanding  that  there  might  be  a 
recovery  although  deceased  was  negligent  in  getting  on  the  engine 
and  remaining  there.     Lake  Shore,  etc.,  R.  Co.  e.  Brown.     61. 

An  instruction  that,  as  a  matter  of  law,  the  deceased  having  undertaken 
to  ride  on  the  engine,  though  by  servant's  invitation,  was  not  a  pas- 
senger and  had  no  rights  as  such,  was  properly  refused,  it  being  a 
question  of  fact  for  the  jury  whether  the  deceased  was  a  passenger. 
Lake  Shore,  etc.,  R.  Co.  e.  Brown.     61. 

A  railroad  company  is  not  responsible  for  loss  of  ba^age  dropped  b; 
passenger  accidentally  out  of  car  window,  though,  being  notified,  it 
refuses  to  stop  short  of  the  usual  station.  Henderson  e.  LoniBville, 
etc.,  R.  Co.     95. 

Sam  of  money  left  by  a  passenger  in  bis  coat-pocket,  the  coat  bnTing  been 
given  to  the  porter  without  mentioning  the  money,  and  hung  by  him 
in  the  paseeneer's  berth,  is  in  bis  own  custody  and  at  his  own  risk; 
aud  the  fact  that  be  told  the  porter  on  getting  out  of  the  car,  after  a 
subsequent  accident,  that  the  money  was  there,  put  no  liability  on  the 
company  as  gratuitous  bailee  or  otherwise,  it  having  in  such  case  a 
right  to  notice  in  the  outset  and  nayment  for  any  responsibility,  and 
the  occurrence  of  the  accident  dia  not  change  tbe  rule  aa  to  the  de- 
gree of  care.     Hillis  v.  Chicago,  etc.,  R.  Co.     108. 

Where  a  negress  was  ejected  from  a  train  for  attempting  to  ride  in  a  car 
set  apart  for  the  white  people,  and  refusing  to  vo  into  a  car  open  to 
everybody,  and  it  appearing  that  the  cars  were  alike  in  every  respect, 
it  was  held  that,  as  her  purpose  evidently  was  to  harass  defenaant, 
aud  not  in  good  faith,  she  could  not  recover.  Chesapeake,  etc.,  R. 
e.  Wells..    111. 

Where  cnrs  are  set  apart  for  men  and  women,  and  the  passenger  reftuea  to 
go  in  the  men's  car,  on  the  ground  that  there  wassmoking  there,  and, 
there  being  no  seats  in  the  women's  car,  refused  to  give  up  hia  ticket 
and  was  ejected  from  the  train,  he  cannot  recover,  Memphis,  etc,  R. 
Co.  B,  Benann.      113. 

In  an  action  by  a  passenger  to  recover  damages  for  being  ejected  from  a 
railroad  train  on  refusal  to  give  up  his  ticket  on  demand,  the  beat 
evidence  of  his  right  to  be  on  the  train  is  the  ticket  itself;  and  until 
the  non-production  of  the  ticket  is  explained,  parol  evidence  of  what 
such  ticket  is  entitled  to  cannot  be  admitted.  Memphis,  etc.,  R.  Co. 
V.  Benson.     112. 

Fltuntiff  purchsaed  a  ticket  to  8.  from  defcndaqt's  station  agent,  and  by 
his  direction  entered  a  train  which  did  not  atop  there,  and  he  was 
compelled  to  get  ofi  three  miles  away.  Held,  that  he  was  entitled  to 
actual  damages  sustained  from  the  mistake  of  the  agent  and  damages- 
for  the  misdirection,  though  the  proof  did  not  sustain  an  allegatioik 
of  forcible  ejection.    Alabama,  etc,  R.  Co.  e.  Heddieston.    116. 


^d  by  Google 


Wbere  a  pasaenger  on  n  atnet  car,  riding  on  a  transfer  ticket  given  him 

b;  companj'a  agent  at  the  iatersectioD  of  the  lines,  was  ejected  on 

the  ground  that  his  ticket  only  entitled  him  to  a  ride  on  the  other 

line,  an  instruction  that  be  was  entitled  to  damages  for- the  sffeut'a 

'  misdirection,  and  to  Tiadictive  damages  for  a  wilful  and  malicious 

misdirection,  but  that  if  plaintiff  did  not  get  ofi  as  related  b;  him, 

but  came  from  another  line  and  received  a  transfer  without  objectioD, 

-]  and  undertook  to  ride  on  the  line  it  did  not  call  for,  he  cannot  re- 

'  cover,  after  a  rerdict,  will  not  be  held  erroneous,  there  being  evidenco 

to  support  it.     Carpenter  e.  Washiegton,  etc.,  R.  Co.     120. 

A  child  of  parents  who  bad  conveyed  land  to  a  railroad  company,  in  con- 
sideration of  which  it  had  agreed  to  carry  the  parents  and  chil- 
dren free  of  charge,  has  a  complete  right  to  such  carriage  in  him- 
self; and  the  regulation  that  free  passage  would  not  be  allowed  to 
any  one  does  not  ap|)ly  to  him,  and  be  is  under  no  obligation  to  ask  for 
a  free  pass,  and  could  recover  for  ejectment.  Grimes  v.  Miuneapolia, 
etc.,  K.  Co.  128. 
.  Where  a  passenger  purchased  a  thousand-mile  ticket  bearing  a  regulation 
requiring  the  passenger's  signature,  of  which  the  passenger  was 
ignorant,  and  which  he  had  not  compiled  with,  tbougn  ticket  agents 
were  required  by  the  company  to  see  that  such  signature  was  made 
before  issuing  the  ticket,  and  the  ticket  in  question  was  several  times 
honored  by  company's  conductors,  It  was  a  waiver  by  the  company  of 
thie  requirement,  and  ejection  of  the  passenger  for  refusing  to  sign  or 

Say  his  fare  in  money  was  not  justifiable.  Kent  c,  Baltimore  &  O. 
.  Co.  185. 
PoTchaser  is  bound  by  a  contract  on  his  ticket  that  he  will  sign  it  before 
company's  agent  at  destination,  called  for  by  it,  fifteen  days  before 
his  return,  and  return  within  that  period,  though  the  fifteen  days  may 
have  elapsed  before  the  expiration  of  the  time  for  which  the  ticket, 
being  a  return  ticket,  was  sold,  and  cannot  recover  for  an  ejection 
from  the  train,  the  period  having  elapsed,  though  he  was  ignorant  of 
the  terma  of  coatroct,     lUwilzky  t>.  Louisville,  etc.,  R.  Go.     129. 

PEHALTT.    See  Attornkt's  Fek. 

PIXASnTQS.    See  Aubndkents. 

A  d^laration  alleging  that  deceased,  a  shipper  of  stock,  had  the  right 
to  transportation,  and  was  rightfully  by  engineer's  directions  on 
the  engine  in  transit,  is  broad  enough  to  cover  the  admisaion  of 
evidence  showing  a  custom  for  such  transportation,  and  to  admit  any 
'  legitimate  proof  of  deceased's  right  to  be  on  the  engine,  and  the  evi- 

dence was  competent  as  showing  servants'  authority  to  carry  him,  and 
that  he  was  a  passenger  for  reward.  Lake  Shore,  etc,  R.  Co.  e. 
Brown.    61. 

Under  the  North  Carolina  Code,  isauea  on  every  material  fact  controverted 
by  the  pleadings  are  not  necessarily  submitted,  but  the  principal 
issnes  raised  by  the  constituted  allegations  of  fact  are;  and  in  an  action 
to  recover  for  personal  injuries,  the  court  should  submit  to  the  jury 
whether  the  plaintiff  was  injured  by  defendant's  negligence,  and,  if 
so,  whether  be  contributed  to  such  negligence,  without  confusing  tha 
jury  by  submitting  evidential  facts  averred  and  denied  by  the  plead- 
ings.    Patton  e.  Western,  etc.,  R.  Co.     298. 

Pleading  first  attacked  after  judgment  fur  not  stating  cause  of  action  will 


^dbyGoO^lc 


ILBASnoe-OmtimMf. 

be  liberall;  coDHtrned  to  uphold  judgment,  and  Allegfttion  that  road  IB 
not  lecurely  fenced  held  to  mean  not  eocl'iaed  bjr  good  and  lawful 
feace.  Missouri  Pac.  R.  Co.  c.  Morrow,  030. 
Bill  of  particulars  Btatiag  demand  has  been  made  OB  rlulroad  agent  hj 
owner  to  pay  for  injuriea  to  cow  run  into  b;  locouotiTe  and  car  cob- 
■tniod  to  mean  when  first  attacked,  after  judgment  that  sucb  acent 
waa  one  on  whom  auch  demand  would  t>e  made  under  KsnaasUw. 
MisBouri  Pac  R.  Co.  e.  Morrow.     SSO. 


Statute  prohibiting  the  running  of  tnuns  faster  than  aii  milea  an  hour 
acroas  a  highway  in  town  is  exercise  of  police  power,  and  applicable  to 
roads  extending  to  adjoining  State  as  well  as  to  those  wboli;  in  Btate. 
Clark  I.  Boiton,  etc.,  B.  Co.     MS. 


Claimant  of  real  estate  out  of  possession  is  liable  in  damages  for  injury 
done  in  obtaining  poaiession  from  another  claimant  in  peaceable  poa- 
session  bj  violent  means  amouoting  to  a  breach  of  peace,  without  re- 
gard to  legal  title  or  right  of  possession.     Denver,  etc.,  R.  Co.  v. 


FOWXSB.    Bee  CoiranroTioiiAi.  Law;  Bailroad  Comneaioii. 


The  court  must  grant  a  new  trial  where  there  is  evidence  in  the  case  which 
is  incompetent,  and  which  probably  influenced  the  jury.  Sherman  c. 
Delaware,  etc.,  R.  Co.    IS. 

The  manner  of  conducting  the  oral  argument  before  a  jury  is  so  much 
within  the  discretion  of  a  trial  court  that  there  will  be  no  interference 
unless  manifest  injustice  haa  been  done.  Chicago,  etc.,  R.  Co.  ». 
PilUbury.    24. 

Where  the  atatute  provides  that  any  pei'son  not  an  employee  or  officer  of 
the  law  in  discbarge  of  his  duty  shall  get  on  or  off  the  train  in  motion 
without  the  consent  of  the  person  in  charge,  he  shall  be  guilty  of  a 
misdemeanor;  one  of  these  facts  must  be  proved  in 'an  action  to  re- 
cover damages  for  injuries  received  in  jumping  from  a  moving  train, 
.  and  the  inference  of  consent  from  the  acta  of  the  conductor  is  for  the 
Jury.    Raben  e.  Cent.  Iowa  R.  Co.    4S. 

Beceiveta  will  be  generally  advised  on  application  to  the  court,  and  in 
particular  cases  particular  advice  will  be  given,  which  may  be  de- 
cisive if  there  are  parties  in  interest,  but  which,  it  the  matter  is 
OS  parte,  is  binding  only  on  the  receivers.  Missouri,  etc,  R.  Co.  c 
Texas  R.  Co.     TS. 

Under  the  Louisiana  practice,  the  United  States  Circuit  Court  may  at  a 
hearing  on  an  amended  petition,  the  original  petinoo  having  been 
dismissed,  amend  the  order  allowing  it  to  be  filed  by  providing  that 
it  shall  be  treated  as  a  mere  amendment  to  the  original  petition, 
and  thus  preclude  the  plaintiff  from  contesting  a  material  fact  within 
his  own  knowledge  averred  ia  that  petition.  Henderson  c.  Louis- 
ville R.  Co.     95. 


^d  by  Google 


PKACnCK-OmtAtwd. 

Where  in  an  action  for  damages  the  petition  alleged  In  substance  that  tbe 
injury  was  caused  b;  the  moving  of  the  engine,  and  the  injury  in  fact 
occurred  white  the  plsintiS  was  eDdeavoring-  to  couple  cars  in  motion, 
the  variance  is  immaterial.     Bedgewick  v.  Illinois  Cent,  R,  Co,     307. 

Notwithstanding  Indiana  act  of  1885,  the  corporation  owning  railroad 
and  lessees,  etc,,  are  joiatl;  liable  for  injury  of  animals  as  under  act 
of  1881;  and  manner  of  conducting  actions  and  col Iccting  judgments, 
and  liability  for  failure  to  fence  except  as  to  farm -crossings,  are  the 
same,  the  latter  haTing  been  transferrea  by  act  of  188S  to  laod-owner; 
and  to  hold  company  liable  under  act  of  1685,  animal  must  have  been 
killed  01  injured  by  engine  or  cars.  Pennsylvania  R.  Co.  e.  Dunlap. 
S13. 

Failure  of  trial  court  to  state  issues  presenting  question  of  contributory 
negligence  is  not  enor,  there  being  a  subsequent  instruction  in  which 
duty  of  defendant  to  restrain  stock  was  correctly  stated ;  issues  need 
not  be  stated  in  single  paragraphs  of  charge.  Timmios  e,  Chicago, 
etc,,  U,  Co.     541. 

Complainant  alleged  strip  of  land  to  be  public  highway,aDd  a  fence  across 
,.  „  _.,; .  there  were  averments  that  an  easement  existed  tr  "■' 


joioing  hotel  property  of  right  of  nay  across  the  strip  for  passengers 
and  baffgage  from  station,  and  that  the  fence  bad  no  opening  for  them 
as  it  sbould  have,  Setd,  that  complainant  misht  have  ^en  more 
definite  in  stating  easement  to  tiavebeenreservedbj  deeds; still  plain- 
tiff's right  of  relief  b;  virtue  of  reservation  which  he  could  not 
obtain  on  any  other  grouod,  was  not  defeated;  and  the  whole  fence 
need  not  have  been  removed,  but  merely  an  opening  for  the  convenient 
passage  of  passengers  and  baggage.     Avery  v.  New  York,  etc.,  B.  Co.  . 

naCHAL  AHD  AOBKI.    See  EviDBROB. 

Corporation  is  liable  for  dvilUer  torts  committed  by  servants  and  agents 
done  by  its  authority  esprese  or  implied.  Denver,  etc,,  R.  Co,  e. 
Harris.     503, 

A  railroad  under  its  officers  and  by  its  agents  took  violent  possession  of 
another  road,  and  white  so  doing  injured  defendant  working  on  latter 
in  performance  of  his  duty,  when  tlie  former  company  seized  the  road 
and  operated  it  for  a  time,  .&ld,  first  road  was  liable  in  tort  for  acts 
of  its  agents,  and  plaintiff  could  recover  damages  for  injuries  received 
and  punitive  damages  under  the  circumstances.  Denver,  etc.,  R.  Co. 
V.  Harris.     093. 

TBtnUOSD  GOKXlTHIOAIKnt. 

Where  an  employee  took  by  mistake  a  coat  which  was  not  his  own  and 
was  discharged,  and  his  name  pnt  upon  the  list  of  discharged  em- 
ployees which  it  was  customary  to  take  out  and  send  to  each  agent 
of  company  autborized  to  employ  hands,  the  cause  being  stated  in 
such  communicatioD  to  be  for  steaiiug,  aad  an  action  of  libel  was 
brought  against  the  company,  it  was  held  to  be  error  to  take  the  case 
from  the  jury;  that  though  the  communication  was  primn/aCT "" 


leged,  yet  the  case  should  have  been  submitted  to  determine  whether 
defendant  or  his  agents  acted  in  good  faith,  there  being  some  evi- 
dence showing  spite  or  resentment  by  the  agents.  Bacon  v.  Michi- 
gan Cent.  R.  Co.    357. 


^dbyGoO^lc 


FKOXnUTB  OAmB. 
Where  the  plaintiff,  hftTing  gotten  off  the  tnck  down  an  embankment  io 
avoid  an  approaching  train,  waa  injorad  bj  bein^  ntruck  b;  a  cow 
coming  upon  the  track  aa  the  train  arrived  and  being  thrown  upon 
the  plaintiff,  who  waa  not  aeen  by  the  engineer  owing  to  the  embank- 
ment, and  the  engineer  having  endeavored  to  atop  the  train  on  aeeing 
the  cow,  Tield,  that  if  the  animal  was  thrown  by  negligence  of  thoae 
in  charge  of  the  train  the  injury  was  proximately  caused  by  such 
negligence,  and  where  the  etatute  requirea  the  engineer  aeeing  an 
ohetruction  to  atop  the  train  by  use  of  all  meana  in  hia  power  known 
to  akilful  engineers,  an  instruction  authorizing  a  finding  that  he  is 
guilty  of  negligence  in  not  attempting  to  atop  on  seeing  the  cow  near 
tbe  track,  or  if  it  was  so  near  the  train  that  the  use  of  all 
means  in  his  power  would  not  have  stopped  it  before  striking,  is 
erroneoua,  and  also  one  which,  requiring  use  of  all  means  known  to 
skilful  engineers,  omits  the  statutory  element  that  they  must  be 
vrithin  his  power.     Alabama  R.  Co,  v.  Cbapmau.     8M. 

PimTIVZ  DAKAOEB.    See  Daiuqx& 


AULBDAD  COVXUmOV. 

Pacific  Railroad  Commiieioti  is  not  a  ^ndidal  body,  and  posseoM  no  ja- 
dicial  powers  under  act  creating  it,  and  can  determine  no  rights  of 
government  or  of  corporations  whose  affairs  it  is  appointed  to  inveati- 
gate.     In  re  Poc.  R.  Com.     SSS. 

Congress  cannot  empower  commisalon  to  investigate  private  affairs,  bookSf 
etc.,  of  officers  and  employees  of  corporation  indebted  to  government 
as  to  relations  to  other  companies  with  which  they  have  had  dealings, 
except  BO  far  as  officers  and  employees  are  willing  to  Bubmit  same  for 
inspection,  and  investigation  of  Pacific  Railroad  Commission  la  lim- 
ited to  that  extent.     Jn  re  Pac.  R.  Com.     SS8. 

UniUd  States  have  no  interest  in  expeoditures  of  Pacific  Railroad  Company 
under  vouchers  not  cbarged  against  government  in  accounts  between 
them,  and  Pacific  Railroad  Commiaaion  has  no  power  to  investigate 
such  expenditures.     In  re  Psc.  R.  Com.     S98. 

Power  of  Federal  courts  to  authorize  taking  of  depoaitioDS  on  letters  ro- 

fatory  in  courta  of  foreign  jurisdiction  exists  by  iaternational  comity, 
ut  no  comity  of  any  kind  can  be  invoked  by  the  mere  Congressiooal 
investigating  oommittee.    In  ra  Pac.  R.  Com.     998. 


Receivers  will  be  generally  advised  on  application  to  tbe  conrt,  and  in 
particular  caaea  particular  advice  will  be  given,  which  may  be  de- 
cisive if  there  are  parties  in  .interest,  but  which,  if  the  matter  is 
eg  parte,  ia  binding  only  on  the  receiven.  Uissouri,  etc.,  &  Co.  v. 
Texas  R.  Co.     7fi. 


BI8P0HSEAT    BUFXKIOB.     Bee  Mabtsb  akd  SxnyANT. 


^d  by  Google 


The  Tice-preBident  and  geoerftl  luperintendent  of  a  railroad  ue  agents 
within  the  meaning  of  the  Virginia  statute  providing  for  service  on 
an;  agent  or  any  peraon  under  the  State  laws  declared  an  agent  of  a 
corporation,  either  of  the  State  or  any  other  State,  transacting  buai- 
nesB  in  the  State,  other  than  a  city,  town,  or  bank  of  circmation, 
Norfolk,  etc.,  R.  Co.  e.  Cottrell.     886. 

SmVO.    See  Ma«cxb  asd  Bxetaitt. 


Bum  of  monej  left  by  a  passenger  in  his  coat-pocket,  the  coat  faaTing  been 

S'ven  to  the  porter  nitbout  mentioning  the  money,  and  bung  by  bim 
the  passanKer's  berth,  is  iu  his  own  cuatod;  and  at  his  own  riak  ■  and 
the  fact  that  De  told  the  porter  on  getting  out  of  the  car,  after  a  sub- 
Bequent  accident,  that  the  money  was  tnere,  put  no  liability  on  the 
company  as  gratuitous  bailee  or  otherwise,  it  having  in  such  case  a 
right  to  notice  in  the  outset  and  payment  for  any  respoosibiiity,  and 
the  occurrence  of  the  accident  did  not  change  the  rule  as  to  the  de- 
gree of  care.     Hillis  e.  Chicago,  etc.,  R.  Co.     108. 

mOIAI  TSBDICI. 
On  indictment  of  superintendent  of  nUlroad  killing  stock,  special  verdict 
found  him  not  on  train  that  did  the  killing  and  in  no  way  connected 
therewith ;  special  verdict  should  have  found,  subject  to  judge's  opin- 
ion on  the  law,  the  defendant  guilty  or  not  guilty.    State  e.  Divine, 


Statute  prohibiting  the  running  of  trains  faster  than  six  miles  an  hour 
across  a  highway  in  town  is  exercise  of  police  power,  and  applicable 
to  roads  extending  to  adjoining  State  at  weH  as  to  those  wholly  in 
Sute.    Clarke.  Boston,  etc.,  R.  Co.    948. 

iXATios  Asnri. 

'  Where  an  engineer  was  injured  by  a  collision  with  a  flat  car  which  had 
run  on  to  the  main  track,  there  being  no  station  agent  to  atteod  to 
keeping  the  road  clear,  a  rule  of  the  time-card  relating  exclusively  to 
the  duty  of  such  agent  was  inadmissible  on  plaintiff's  behalf.  Hewitt 
V.  Plin^  etc.,  R.  Co.     US. 

tTATIOItS. 

Implied  exception 

for  access  to  s  ,        . 

■o  far  as  necessary ;  and  railroad  must  fence  to  keep  animals  off  sta- 
tion grounds,  and  thence  oS  track  beyond  limita  ot  such  ground. 
Kobe  e.  Northern  Pao.  R.  Co.    SUB. 


SIATDTEa.    See  Acnone. 


^dbyGoOglc 


732  INDEX. 

STATiriOXT  OOVSTBirCTIOS.    See  Puctkb. 

flAIUTOBT  SISUUTIOVBL 

le  California  Code  requiric 
taioed  from  cars  ruauin^ 
town,  or  road,  docs  not  impoae  absolute  liability  for  injury  done  while 
violating  this  statute  but  if  it  could  have  been;  avoided  bj  exercise 
of  ordinary  care  on  the  part  of  the  iudividual,  the  compaay  la  oot 
liable.    Mobile,  etc.,  R.  Co.  e.  Btroud.    148. 

STOCK. 

Exemption  from  taxation  on  atock,  fraDchisea,  or  estate,  real,  pertooal,  or 
mixed,  granted  in  charter  of  railroad  whicli  provided  for  payment  to 
State  of  percentage  of  gross  earnings  in  lieu  of  Bucb  taxation,  not 
applicable  to  timber  land  purchased  by  corporation  from  which  to 
take  timber  to  be  converted  into  ties  or  lumber  for  its  uae.  Count; 
of  Todd  t.  St.  Paul,  etc.,  B.  Co.    482. 

STBEEI.    Bee  Tresfabskb. 

STKUT  KAZLWATB.    See  PABSEKaKBB. 

ITKIU.    See  PABBBsoxBa. 


Exenif>tioD  from  taxation  on  stock,  franctaliei,  or  eaUte,  real,  perBonal,  or 
mixed,  granted  in  charter  of  rulroad  which  provided  for  payment  to 
State  of  percentaKe  of  gross  eamiDBS  in  lieu  of  such  taxation,  not 
applicable  to  timber  laud  purcbaaed  by  corporation  from  which  to 
take  timber  to  be  converted  into  ties  or  lumber  for  its  use.  County 
of  Todd  e.  St.  Paul,  etc.,  R.  Co.     483. 

There  U  in  Illinois  no  constitutional  or  statutory  exemption  from  the 
aasessing  of  railroad  property,  as  specially  beneSted,  for  park  or 
boulevard  purposes.    Chicago,  etc.,  R.  Co.  c.  People.    487. 

fiouth  Carolina  statute  giving  State  officer  supervision  of  all  railroads  in 
State  and  imposing  payment  of  his  salary  and  expenses  on  them  is 
valid  under  various  statutory  and  constitutional  provisions  as  an 
amendment  of  railroad's  charter,  and  is  not  invalid  as  contravening 
constitutional  provision  that  taxation  shall  be  uniform,  Charlotte, 
etc.,  R.  Co.  e.  Oibbes.    464. 

Constitutional  provision  requiring  taxation  of  property  to  be  according 
to  ita  value  does  not  limit  power  of  State  as  to  taxation  of  property,  and 
a  tax  on  railroad  company  according  to  their  income  is  valid.  Char- 
lotte, etc.,  R.  Co.  o.  Gibbes.    464. 

Under  Illinoii  Revenue  Act  requiring  property  to  be  assessed  at  fair  cash 
value,  asseasment  of  railroad  property  by  State  Board  of  Equalization 
exceeding  its  conceded  value  is  valid;  and  fact  that  town  esBesaora 
assessed  other  property  not  assessed  by  State  Board  at  about  one  third 
of  its  cash  value,  thereby  failing  to  perform  their  duty,  is  no  ground 
for  objection.     Illinois,  etc.,  R.  &  Coal  Co.  t.  Stookey.    470. 

Illinois  Legislature  has  provided  for  no  appeals  from  valuation  of  railroad 


^d  by  Google 


TAXATIOV-  ContfnuAl. 

property  bj  State  Board  of  Equalizatioa ;  sach  Talu&tion  can  onlj  be 
assailed  for  fraud  or  waot  of  juiiadiction.  Ulinois,  etc.,  R.  <&  Coal 
Co.  e.  Stookey.    479. 

A  judgment  confirming  special  assessments  upon  lands  benefited  bj  a 
proposed  public  improvement  is  conclusive  h8  to  all  defences  that 
mignt  bare  been  interposed  thereto,  and  oq  application  for  judgment 
Waiost  such  lands  for  delinquent  assessments  it  cannot  be  shown 
^at  property  was  exempt  or  not  benefited,  or  that  ordinance  under 
which  they  were  made  was  invalid,  such  matters  after  judgment  of 
confirmation  being  ret  adjiuLieata.  Cliicago,  etc.,  R.  Co.  o.  People, 
487. 

State  statute  levying  tax  on  gross  receipts  of  railroads  for  cajriHge  of' 
freight  and  passengers  into,  out  of,  or  through  Btate  is  tax  on  inter- 
state commerce  and  void;  and  while  tax  on  money  actually  in  Stats 
after  it  has  passed  beyond  stage  of  compensation  for  carriage  is  valid, 
one  on  receipt  for  carriage  speciflcallj  is  on  commerce,  out  of  which 
it  arises,  and,  if  that  be  interstate,  is  void.     Fargo  v.  Stevens.     403. 

Btatf)  cannot,  under  guiee  of  tax  on  business  transactions  in  its  borders, 
impose  a  burden  on  commerce  among  States  when  business  so  taxed  is- 
itself  interstate  commerce.     Fargo  v.  Stereui.     469. 

TKKXTS.    See  Coimscmra  Gabbixbb. 

The  holder  of  a  coupon  mileage-book  tore  out  some  of  the  coupons  and 
gave  the  bootc  to  an  employee,  who  used  it;  the  holder  took  a  subse- 
quent train  and  offered  the  coupons  for  passaee;  the  cover  of  the 
book  contained  the  company's  regulation  that  the  coupons  should  be 
Toid  if  detached  unless  by  the  conductor,  and  that  coupons  detached 
by  the  passenger  would  be  refused  and  fare  collected  unless  the  book 
was  produced;  the  regulations  were  unknown  to  the  plaintiff.  The 
conductor  refused  to  receive  the  coupons,  and  caused  plaintiff  to- 
be  arrested  for  fraudulently  evading  his  fare.  Plaintiff  was  subse- 
quently discharged.  Htld,  evidence  of  conductor's  accepting  similar 
coupons  under  similar  circumstances  was  inadmissible,  except  to  prove 
a  custom ;  and  a  request  for  a  ruling  that  the  evasion  for  wbicn  the 
passenger  might  be  lawfully  ejected  must  be  a  fraudulent  one,  with 
an  Intention  to  defraud  the  company,  was  rightly  refused,  the  court 
declining  to  construe  the  words  "ejected  or  removed"  as  meaning 
"  removed  by  arrest,"  or  "  arrested,"  in  a  suit  for  assault  or  false  im- 
prisonment and  msJicious  prosecution.  Matahall  e.  Boston,  etc.,  B. 
Co.     18. 

Where  a  passenger  purchased  a  thonsand-mile  ticket,  bearing  a  regulatjoa 
requiring  the  passenger's  signature,  of  which  the  passenger  was 
ignorant,  and  which  he  had  not  complied  with,  though  ticket  agenta 
were  required  by  the  company  to  see  that  such  signature  was  madft 
before  issuing  the  ticket,  and  the  ticket  in  question  was  several  times 
honored  by  company's  conductors,  it  was  a  waiver  by  the  company  of 
the  requirement,  and  ejection  of  the  passenger  for  refusing  to  sign  or 
pay  his  fare  in  money  was  not  justifiable.  Kent  e.  Baltimore  &  O. 
B-  Co.     125. 

Puichaser  is  bound  by  a  contract  of  his  ticket  that  he  will  sign  it  before 
company's  agent  at  destination,  called  for  by  it,  fifteen  days  before  h)a 
return,  and  return  within  that  period,  though  the  fifteen  days  may 
have  elapsed  before  the  expiration  of  the  time  for  which  the  ticket, 
being  a  return  ticket,  was  sold,  and  cannot  recover  for  the  ejectioa 


^dbvGoo^lc 


TIOZETB—  Qmtimuea. 


Centr&l  Pkci&c  Bftilroad  Compu;  is  owner  of  Ikoda  tnd  bonds  granted  by 
gOTernment,  hftving  complied  with  act  making  gruit,  aubject  to  lien 
of  goTernment  to  secure  advances,  in  same  way  and  to  same  extent  aa 
natural  penoni  in  like  situatioo.     in  re  Pac.  R.  Com.    fi98. 


Corporation  is  liable  for  eMUttr  torts  committed  by  Nrrants  and  ajmnti 
done  by  jt«  authority  express  or  implied.  Denver,  etc.,  R  Co.  •■ 
Harris.     SB3. 

A  railroad  under  its  officers  and  by  its  agents  took  violent  possession  of 
another  road,  and  while  no  doing  injured  defendant,  working  on  latter 
in  performance  of  hia  duty,  when  the  former  company  seized  the  road 
and  operated  it  for  a  time,  ^td,  the  first  road  was  liable  in  tort  for 
acta  of  ita  t^uts,  and  plaintiff  could  reoover  damages  for  injuries 
receiTod  and  punitive  damages  under  tta«  cinjumatances.  Denver, 
etc.,  S.  Co.  e.  Harris.     0S2. 


Where  stock  is  killed  while  trespaasing  on  track  in  town,  it  may  be  shown 
that  stock  was  not  permitted  bv  law  to  run  at  larjge  in  said  town; 
and  there  being  such  law,  the  railroad  1b  liable  only  for  gross  n^li- 
gence  in  killing  same.    Missouri,  etc.,  R.  Co.  etai.^.  Duuiam.    SSO. 

fSUFAHES.     Bee  AmvuA. 

One  travelling  on  a  track  not  at  a  crotttin^,  and  where  the  rulway  haa  not 
licensed  the  public  to  use  its  track,  is  a  trespaaser;  and  to  ctMstltnte 
such  license  it  must  appear,  either  expressly  or  by  clear  implication, 
that  the  owner  authorized  its  use;  and  being  a  trespasser,  no  action 
Willi  ie  for  causing  death  unless  by  wilful  act  of  its  employees;  and 
the  theory  of  the  complaint  being  grounded  on  such  wilful  act,  evi- 
dence showing  the  permissive  use  of  track  ia  immaterial.  Palmer  e. 
Chica^,  etc.,  R.  Co.    S64. 

Aperaon  in  full  posiesnon  of  bis  senses,  but  subject  to  absent-minded- 
ness, was  killed  while  on  company's  track  without  permission,  tfaon^ 
accustomed  with  others  to  walk  there.  The  engineer,  half  a  mile  ^ 
whistled,  and  he  did  so  several  times,  and  when  close  be  continued 
sounding,  and  also  applied  the  brakes  and  endeavored  to  stop  the 
train.  Deceased  had  ample  time  to  get  out  of  the  way.  Edd,  »  ver- 
dict was  properly  directed  for  the  defendant,  and  deceased  Ik-ipi;  a 
trespasser,  and  being  guilty  of  8uch|contributory  negligence,  would  de- 
feat a  recovery  unless  proven  that  the  engineer  ran  the  train  reck- 
lessly upon  him,  having  seen  the  danger  but  doing  nothing  to  avoid 
it.    Baumeister  e.  Qrand  Bapids,  etc.,  R.  Co.     876. 

Walking  on  a  railroad  right  of  way  is  not  negligence  p«-  m,  espetually  in  a 
town  or  city  where  passii^  or  repassing  persons  are  frequent.  The 
question  of  due  care  and  contributory  negligence  on  plaintiff's  part 
is  one  of  fact.     Alabam*,  .etc,  R.  Co.  e.  Chapman.    3M. 


^d  by  Google 


TBZ8FASBES—  Cmtinved. 

Wbere  eDKioeer  supposed  a  distant  object  on  the  track  to  be  s  pig,  and 
only  discoverea  it  to  be  &  child  when  too  l&te  to  stop,  the  charge  that 
an  object  between  tha  ties  not  more  than  two  or  three  inches  above 
is  Dot  ordinarily  one  iadicating  danger,  or  calling  for  increased  dili- 
gence, or  would  the  engineer  1^  required  to  slow  down  the  speed  un- 
til be  discovered  that  it  would  probably  endanger  the  train  or  the 
passeogerB,  or  would,  if  human  life,  be  in  danger  itself,  was  properly 
refuaed.     Eeyser  v.  Chicago,  etc.,  R.  Co.     399. 

Aji  engineer  running  a  train  in  daylight  has  a  right  to  assume  that  an  ob- 
ject will  perceive  the  train  and  will  leave  the  track  in  time,  and  may 
run  on  without  negligence  until  he  discovers  that  it  is  heedless  of  the 
danger,  and  is  not  bound  to  expect  helpteaa  infants  on  a  track;  nor  is 
the  corporation  responsible  for  the  engineer's  error  of  judgment  aa  to 
the  speed  of  the  train  and  his  ability  to  stop  it;  all  he  is  bound  to  do 
after  discovery  of  peril  being  to  use  reasonable  diligence  and  care  to 
avert  it.     Chrystal  o,  Troy,  etc.,  R,  Co,    411. 

Where  an  infant  of  seventeen  months  escaped  from  its  mother's  bouse  and 
went  upon  a  track  and  was  injured,  and  it  appeared  that  the  child 
reached  the  track  a  short  time  before  the  accident,  and  the  engineer 
immediately  upon  seeing  it  applied  brakes  and  reversed  bis  engine, 
and  did  all  he  could  to  stop  the  train  but  could  not  do  so  in  time,  and 
that  being  the   only  negligence   complained  of,  a  submission  to  tbe 

ery  of  the  question  of  negligence  was  error.  Chrystal  e.  Troy,  etc., 
Co.  411. 
A  nulroad  having  a  legal  right  to  a  clear  track,  except  at  crossings,  owe* 
no  duty  to  a  trespasser  walking  from  one  station  to  another  until  he 
is  seen,  and  even  then  it  may  be  assumed  that  he  will  get  off  the  track 
in  time  until  it  can  be  seen  that  bis  condition  or  surrounding  circum- 
stances prevent  him;  and  the  company's  liability  was  measured  by  itS' 
employees'  conduct  after  they  became  aware  of  his  presence  there,  the 
trespasser's    contributory  negligence  defeating  a  recovery  on    the 

rund  of  their  negligence  in  failing  to  discover  him.  St.  Louis,  etc, 
Co.  s.  Monday.    4M. 

Plidntiff  psssing  along  a  street  where  defendant's  track  was  laid,  and 
where  the  public  had  a  right  to  travel,  caught  bis  foot  in  a  rail,  and, 
being  unable  to  extricate  it,  was  run  over.  Tbe  track  was  negligently 
constructed  and  the  train  negligently  run.  Sdd,  that  plaintiff  was 
not  a  trespasser  who  had  no  nght  to  exact  care  from  defendant,  and 
the  latter  was  liable.     Louisville,  etc.,  R.  Co.  v.  Phillips.     482. 

Where  a  trespasser  upon  a  railroad  track  is  killed  by  a  train,  company  is 
only  responsible  it  death  is  caused  wilfully  or  purposely  by  its  em- 
ployees; and  this  net  appearing,  either  in  the  issues  or  the  proof,  the 
verdict  should  be  directed  for  defendant.  Gregory  «.  Cleveland,  etc., 
R  Co.     440. 

Declaration  by  widow  for  damages  for  husband's  death,  stating  that  de- 
ceasea  got  on  track  sixty  feet  in  front  of  train  approaching  at  rate  of 
■  15  or  80  miles  an  hour,  unobserved  by  him,  though  there  was  nothing 
to  obstruct  view;  and  proceeded  in  middle  of  track  to  walk  home  and 
was  killed  by  train,  and  engineer  might  and  ought  to  h^ve  seen  him, 
states  no  cause  ot  action,  and  demurrer  should  tw  sustained.  Mobile, 
etc.,  R.  Co.  t>.  Stroud.    448. 

Employees  in  charge  of  a  train  are  not  bound  to  stop  whenever  they  see  a 
person  on  the  track;  and  while  the;  may  not  wantonly  injure,  they 
may  assume  that  one  on  the  track  where  there  Is  no  difficulty  in  leav- 
ing it  will  get  off  before  he  's  reached;  if  they  see  him  where  he 


^dbvGoo^lc 


cannot  readil;  luve  in  time,  or  if  thej  diKOTer  tbmt  he  is  unftWAre  of 
his  peril,  they  are  bound  to  itop  if  pottible;  but  a  nilroad  compaDy 
ia  Dot  reipoDaible  on  account  of  their  employees  not  seeing  a  person 
who  is  in  a  place  where  he  has  no  right  to  be.  Mobile,  etc.,  R.  Co.  v. 
Stroud.  448. 
Where  one  walking  home  on  a  track,  to  aroid  an  approachiug  train  gets 
on  another  parallel  track  in  front  of  an  engine  approaching  at  the  rate 
of  10  to  SO  miles  an  hour  in  plain  view,  aod  walks  up  the  latter  track 
until  overtaken  and  killed,  he  ia  guilt;  of  contributory  negligence 
though  he  was  partially  deaf  and  did  not  obserre  the  eugine,  and  hia 
widow  cannot  recover  though  the  engine,  in  violation  of  the  atati ' 
a  running  faster  than  aix  miles  an  nour  in  the  city  without  sigi 


it  recover  though  the  engine,  in  violation  or  the  statute, 
^  faater  than  six  miles  an  nour  in  the  city  without  signal- 
ling and  neither  engineer  nor  brakeman  was  watching,  but  cbing 


something  else.    Mobile,  etc.,  R.  Co.  v.  Stroud.    448. 


^d  by  Google 


lib,  Google 


lib,  Google 


lib,  Google 


D„ii„.db,Go(5glc 


lib,  Google 


lib,  Google 


lib,  Google 


lib,  Google