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Un des symboles suivants apparaTtra sur la dernldre image de chaque microfiche, selon le cas: le symbols — ► signifie "A SUIVRE", le symbols V signifie "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included In one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent §tre filmis d des taux de reduction diff6rents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est film6 d partir de I'angle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants iilustrent la m6thode. 1 2 3 :■ 1 ■■■. 2 3 4 5 6 \ • A DIGEST OF RAILWAY DECISIONS. c % I C EMBRACING AZZ THE CASES FROM THE EARLIEST PERIOD OF RAILWAY LITIGATION TO THE PRESENT TIME IN THE UNITED STATES, ENGLAND AND CANADA. BV STEWART RAPALJE AND WILLIAM MACK. Volume I. NORTHPORT. LONG ISLAND, N. Y. : EDWARD THOMPSON COMPANY, Law Publishers. 1895. / ".6^ •jc y "^ i'/> Copyright, 1894, BY BDWARD THOMPSON COMPANY. AU Rightt R$urv*d. M PREFACE. This work has been prepared under the belief that an urgent need for it has ex- isted for a considerable length of time. During more than sixty years of railway litigation, increasing from year to year in a ratio so ast'^nishing as to almost satisfy the rule of geometrical progression, only one special digest has appeared.* That work, the second and final volume of which was published in 1884, contains about 20,000 points of law ; this one, published ten years later, contains about 7S,ooo, or nearly four times as many as its predecessor. Assuming that the learned author of the earlier work collected all the cases then reported, which he claims to have done — and we have no intention to dispute his claim— it follows that the courts have furnished nearly three times as much railway law during the last ten years as they did during the fifty years of railway litigation which preceded that period. If this be true, surely the present work is needed; and if, on the other hand, the fact be that the former work did not cover all the cases, or approximately all of them, then, a fortiori, a thorough and exhaustive digest of the entire body of railway case law has become an urgent necessity, for it is undoubt- edly true that a large majority of the cases which are here digested and which do not appear in the former work Iiave hitherto been practically inaccessible to the brief- maker, because scattered through a multitude of digests, and not thoroughly digested in any. In gathering the materials for this work nearly six thousand volumes of American, English, and Canadian reports have been carefully examined, page by page. We have not relied upon the labors of other digest-makers, but have done the work afresh, en- deavoring to cull from the decisions every point of railway law to be found in them, whether decided in a distinctively railway case or not. Fulness of statement has been preferred to a brevity that might mislead in view of the inaccessibility of some of the reports embraced. To seoiire accuracy every citation has been twice verified, once in the manuscript and again in the proof-sheets. The classification adopted is minute, logical, and scientific, and the arrangement * Mr. Lacey's, in two volumes, the first covering forty years and the second ten. iii iv I'Rlil'ACK. of the matter under Hivisions, subdivisions, and numbered "captions " or " catch- lines' is so simple thit it is believed the reader will meet with less difficulty in find- ing what he wants in this than in any other digest extant. The American and English Railkoau Cases, covering the years 1881 to 1S94, including cases reported in full, cases abstracted, and annotations, are completely digested herein down to and including volume 58. Following the principal case, references to all reports of which, official and unoffi- cial, are given, will be found listed the authorities upon which it is based, or which it distinguishes, or reviews in any way; and following these is given a full reference to all subsequent decisions in which the principal case is itself passed upon, so far as the precise point in question is concerned. In this way the judicial history of every railway case is given, and its weight as authority upon each and every one of its holdings becomes a matter of easy ascertainment. The titles of the principal cases, i.e., the cases directly deciding the points of law given in the text, are printed in italics j those in Roman type are the cases passed upon in, or which pass upon, the principal cases. Where tivo or more principal cases are grouped, the citations which folloiv are to be referred to th. 1 Incipal case last cited, and not to the whole group. Full cross-references, specific in character, and sufficient in number to make the work its own index, will be found throughout the alphabet of titles. In addition to this a complete and thoroughly reliable index to the entire contents of the work will be given in the proper place. The table of cases digested will l^fer to each place where any given case appears in the Digest ; it will also give a complete list of all railway cases which approve, distinguish, follow, disapprove, or in any other way pass upon it, and also those which cite it, even though it be merely to back up an elementary principle of law laid down by the court. Still another and, in our view, a very important and useful feature of the Digest is the very large number of references, in the foot-notes, to important annotations (many of them monographs in themselves) scattered through the American and English Railroad Cases, American Decisions, American Reports, American State Reports, and Lawyers' Reports Annotated. All that is of value to the railroad lawyer in the notes given in the above standard series is referred to in every appropriate place in the Digest. In concluding we desire to express our thanks to a number of gentlemen, some of them the publishers, and others the reporters, of many of the most authoritative and most ably-edited sets of our reports, for their very kind permission to use their copyrighted syllabi, of which permission we have availed ourselves in very many instances, thus considerably lightening our labors and expediting the completion of the work. Our thanks for this courtesy are due to A. Moore Berry, Esq., St. Louis, Mo.; Hon Henry N. Blake, Helena, Mont; The Bowen-Merrill Co., Indianapolis, Ind.; Hon. Horace R. Buck, Helena, Mont.; Hon. Lorenzo Crounse, Lincoln, Neb.; r \ ( < ( .■ PREFACE. V S. Meredith Dickinson, Esq., Trenton, N. J.; L. B. France, Esq., Denver, Colo.; Norman L. Freeman, Esq., Springfield, 111.; Hon. James Z. George, Washington, D. C; John L. Griffiths, Esq., Indianapolis, Ind.; Moses Hallett, Esq., Denver, Colo. ; Hon. N. J. Hammond, Atlanta, Ga.; G. W. Hansbrough, Esq., Salem, Va.; George E. Harris, Esq., Washington, D. C; Hon. J. B. Heiskell, Memphis, Tenn.; J. B. H. Hemingway, Esq., Clayton, New Mex.; Messrs. Kav & Brother, Philadelphia, Pa.; Messrs. Loring, Short & Harmon, Portland, Me.; J. M. Moore, Esq., Little Rock, Ark.; Messrs. John P. Morton & Co., Louisville, Ky.; Charles E. Nash, Esq., Augusta, Me.; Joseph Poland, Esq., Montpelie., Vt.; Messrs. Rees, Welsh & Co., Philadelphia, Pa.; John W. Rowell, Esq., West Randolph, Vt.; J. B. Sanborn, Esq., Concord, N. H.; E. W. Stephens, Esq., Columbia, Mo.; J. Shaaff Stockett, Esq., Annapolis, Md.; W. G. Veazey, Esq., Rutland, Vt.; J. M. Woolworth, Esq., Omaha, Neb.; Hon. George B. Young, St. Paul, Minn. S. R. W. M. November, 1894. TABLE OF REPORTS EMBRACED SHOWING THE ABBREVIATIONS USED.* Reports. How Citkd. Abbott's New Yor'c Appeal Decisions, vols. 1-4 Abb. App. Dec. (N. Y.). Abbott's New York New Cases, vols. 1-30 Abb. N. Cas.(N, Y.). Abbott's New York Practice Reports, vols. 1-19 Abb. Pr. (N. Y.). Abbott's New York Practice Reports, New Series, vols. 2-16 Abb. Pr. N. S. (N. Y.). Abbott's U. S. Circuit and District Court Reports, vols, i, 2 Abb. (U. S.). Alabanna Reports, vols. 2-98 Ala. Allen's Massachusetts Reports, vols. i-r4 Allen (Mass.). American and English Railroad Cases, vols. 1-58 Am. & Eng. R. Cas. American Railway Reports, vols. 1-21 Am. Ry. Rep. Appeal Cases, District of Columbia, vol. i App. Cas. (D. C). Arkansas Reports, vols. 9-57 Ark. Atlantic Reporter, vols. 1-26 All. Rep. Bailey's South Carolina Reports, vols, i, 2 Bailey (So. Car.). Baldwin's U. S. Circuit Court Reports, vol. i Baldw. (U. S.). Barbour's New York Chancery Reports, vol. 2 Barb. Ch. (N. Y.). Barbour's New York Supreme Court Reports, vols. 3-67 Barb. (N. Y.). Baxter's Tennessee Supreme Court Reports, vols. 1-9 Baxt. (Tenn.). Bay's South Carolina Superior Court Reports, vol. i Bay (So. Car.). Benedict's U. S. District Court Reports, vols. 2-10 Ben. (U. S.). Bissell's U. S. Circuit and District Court Reports, vols, i-il Biss. (U. S.). Blackford's Indiana Supreme Court Reports, vols. 4, 5 Blackf. (Ind.). Black's U. S. Supreme Court Reports, vols. 1-2 Black (U. S.). Bland's Maryland Chancery Reports, vol. 3 Bland's Ch. (Md.). Blatchford's U. S. Circuit Court Reports, vols. 2-24 Blatchf. (U. S.). B. Monroe's Kentucky Court of Appeals, vols. 3-18 B. Mon. (Ky.). Bond's U. S. Circuit and District Court Reports, vols, i, 2 Bond (U. S.). Boswortli's New York City Superior Court Reports, vols. 2-10 Bosw. (N. Y.). Brewster's Pennsylvania Reports, vols. 1-4 Brews. (Pa.). Brightly's Pennsylvania Nisi Prius Reports, vol. I Bright N. P. (Pa,^, British Columbia Reports, vol. 2 British Col. Brunner's U. S. Circuit Court Collective Cases, vol. i Brun. Col. Cas. Busbee's North Carolina Supreme Court Reports, vol. i Busb. (N. Car.). *The English reports prior to 1865. when the " Law Reports" began, though cited in the text are not referred to in this Table. The early volumes of many sets of reports are not included herein for the reason that they contain no railway decisions. They antedate the period of railway litigation. Tii T VIII 'i'.\i;i,i. oi' kKi'oki'S I'MimAt.i'.i). Kl'i I'll IS. I|iiv\ ("i ihl", Hush's KeriKirkv Conrl (if Appeals Reports, vols. 1-14 HusliiKy.). California l E. R. Co., 40 Conn. 524. 3. Of right of way.-| — The mere non user of a right of way granted to a company will not extinguish the easement where there is no adverse possession or where there are no acts on the part of the com- pany from which an abandonment can be clearly inferred. Roanoke Inv. Co. v. Kan- sas City &> S. E. R. Co. {Mo.), 51 Am. &* Eng. R. Cas. 426, 17 S. W. Rep. 1000. To constitute an abandonment of any part of the right of way, there must not only be non-user but an intention to aban- * Abandonment by railroad companies gener- ally, see note, 10 Am. & Eng. R. Cas. 143. f Abandonment of location or right of way, see notes, 51 Am. & Eng. R. Cas. 436; 10 Id. 143. Sale of right of way to rinother company not an abandonment. See note, 14 Am. & Eng. R. Cas. 51. I D. R. D — I. don. Durfce v. Peoria, D. &• E. R. Co., 140 ///. 435, 30 N. E. Rep. 686. Where a railway company entered into an agreement with another company, whereby the former acquired, by lease, the right to run its trains over the tracks of the latter for ten years, and then removed the ties and rails on its own road and faiic.^ io occupy the land over which its road passed for nine or ten years, but without an inten- tion to permanently abandon the same, held, that such company, by its acts, did not lose its right of way. Dtirfee v. Peoria, D. 6- E. R. Co., 140 ///. 435, 30 N. E. Rep. 686. The statute declaring that non-user for five years of any "turnpike, plank-road, canal, or slack-water navigation or public highway of any company or corporation " shall constit 'te an abandonment has no application to a railroad company, which will not by a mere lapse of five years' time be presumed to have abandoned its right of way for constructing branch lines. Pitts- burgh, V. &> C. R. Co. v. Pittsburgh, C.&'S. L. R. Co. (Pa.), 57 Am. &> Eng. R. Cas. 46, 28 Atl. Rep. 155. Where no statute requires a company, after making a location, to keep stakes in position along the proposed line, or any map to be recorded, the failure to keep its lines staked out will not imply abandon- ment of the location so as to estop the company from denying the right of another company to construct its road on such lo- cation. Pittsburgh, V. <&- C. R. Co. v. Pitts- burgh, C. &• S. L. R. Co. {Pa), 57 Am. «S- Eng. R. Cas. 46, 28 Atl. Rep. 155. Where a company acquired the right of 2 ABANDON MKNT, 2-4. way prior to 1856, but transferred to an- other company cliarteied subsequent to said date, sucli riylit c( way is property, iind it is not competent for tiie lcj;isl,itiire to give it to anotiier corporation without maliing compensation; but proof of non- user of ten years is suiricieni proof that the company lias abandoiicl tiie rii^iil of way. and being so abandoneii ii is witiiin tlie constitutional power of tlie legislaiure to grant ii to anoti)er company, ilt-iuicr- son V. Centyal J'. 70. 3. Of ouiistriictioii of road.— The right to construct a railroad and the right of abandonment are not necessarily the same; the right to abandon a light of way does not always result from tlie riglit not to construct. People v. Albany Cs- V . R. Co. 37 Jiarb. (A'. V.) 21O. Tile abandonment ui the construction of a railroad docs not, of itself, constitute a defence to a suit to recover debts due the company : wliilst the corporate organization remains, they may collect dues in their cor- porate name for the payment of debts. Hardy v. Merriweat/ter, 14 Jnd. 203. A right of way is not forfeited by a failure to occupy it for thirteen years, growing out of delay in the construction of the road. Mere non-user of an easement of this char- acter, acquired by deed, will not operate to defeat or impair the right. Barhnv v. Chi- cago, R. I. &^ P. R. Co., 29 loiva 276.— Dis- TiNGUlSHKU IN Ball V. Keokuk & N. W. R. Co., 20 Am. cSc Eng. R. Cas. 375,62 Iowa 751. FoLi.owKD IN Noll V. Dubuque, B. & M. R. Co., 32 Iowa 66. A plea that parties had forfeited a right of way by voluntarily abandoning the construc- tion of railroads in certain streets, and by failing to construct said roads within the time limited by contract, is not made out when proved that they were prohibited to do the work by an injunction from a third party ; and because the injunction taken in Sep- tember, 1866, was not dissolved before June, 1872, it is not to be inferred that it was kept so long in force by the wish and connivance of the relators, when the city was a party to the injunction suit, and having the same right to push the case that the relators had, did not do so. State ex rel. v. Cockrem, 25 La. Ann. 356. 4. Of part of road. — A railway com- pany is bound to construct its road to and from the several points named in its charter, and, when built, to run its trains over its entire line, in such a manner as to afford reasonable facilities for the prompt and efficient transaction of sucli legitimate busi- ness as may be oflfered to it on any and every part of its road ; and this obligation is equally binding on its successors. No part of the road can be abandoned without rendering its franchises liable to forfeiture. People e.x rel. v. Louisrille &^ N. R. Co. , 1 20 ///. 48, 10 A^. E. Rep. 657.— Approved in Illinois C. R. Co. v. People, 143 111. 434. A company has not the unrestricted right to abandon a part of a road which is neces- sary to preserve an unbroken line, but the government in a proper case may interfere ABANDONMENT, 5, 6. 8 to prevent the abandonment or to control it. People V. Albany &^ V. R. Co., yj Barb. (A*. Y.) 2i6; (tffinning ii Abb. Pr. 136, 19 How. 523.— Ai'i'RoviNU Rex v. Severn & W. Ry.. 2 Burn. & Aid. 646. A company chartered to build and oper- ate a road between certain designated points cannot operate the road only from the point of bcj^inning to an intermediate point and abandon the remainder of the line. If it does so, its corporate existence may be annulled or its charter declared va- cated by a proi)er proceeding. People v. Albany &> V. A". Co., 24 A^. y. 261 ; affirming 16 Abb. Pr. 465. Where a company fails to build its road over the entire line chartered, but builds a portion of the line and abandons the re- mainder, the proper remedy is an action in the name of the people to vacate the char- ter; a suit ill equity to compel a specific performance of tiie obligation of the com- pany to build the entire line will not lie. People V. Albany &' V. N. Co., 24 N. V. 261 ; affirming 16 Abb. Pr. 465.— Reviewed in Port Clinton R. Co. v. Cleveland & T. R. Co., 13 Ohio St. 544. It is not the province of highway com- missioners to seek to prevent, by injunc- tion or otherwise, a railroad company from abandoning a portion of its route on a highway. Moore v. Brooklyn City R. Co., 31 Hun (A'. J'.) 90. A company cannot question the consti- tutionality of Act No. 275, Laws of 1887 (3 How. Mich. Slat. §§ 3457". 3457'''). which makes it unlawful for any railroad com- pany whose road has been constructed, wholly or in part, by public or local aid, to take up, abandon, or cease the operation of any portion of its road, etc., in a suit insti- tuted by the company under the provisions of the act to obtain an order or decree au- thorizmg such abandonment. Flint &• P. M. R. Co. V. Rick, 91 Mich. 293, 51 A^. IV. Rep. 1 00 1. A railroad company cannot be permitted to abandon a portion of its road under Act No. 275, Laws of 1887, without reimbursing those individuals who contributed to its construction and advanced as a bonus either money, labor, or material. Flint &^ P. M. R. Co. V. Ric/i, 91 Mic/i. 293, 51 A'. IV. Rep. looi. — DlSTlNCUisniNO Ayres ;-. Duttoii, 87 Mich. 528. The provisions of section 1260, Code of Iowa, as amended by act of 1874, in relation to the abandonment of a railroad line, clearly contemplate there may be an aban- donment of a part of a constructed railway. Whether an abandonment exists depends upon the circumstances of each case. Cen- tral Imva R. Co. v. Moulton iS-» .,'/. A*. Co., 10 Am. &^ Eng. R. Cas. 138, 57 Iowa 249, lo A'. W. Rep. 639. 5. Of .station.*— A railway company which, in the interests of economy, has abandoned a station and established two others, thereby hoping to increase the busi- ness of the road, will not be compelled to re-establish the station abandoned where the evidence shows no patron of the road is inconvenienced by the change. State v. Des Moines &> K. C. R. Co. {Io7va), 54 A'. IV. Rep. 461. The plaintiff agreed with the contractors for the building of a railway to convey to them in fee simple six acres, to be increased to ten if necessary, in consideration of their ])lacing the station for the town of P. thereon. After the road had been surveyed and the station buildings erected on the property, the plaintiff executed a convey- ance thereof to the contractors, which con- tained a covenant by them to continue and maintain the station on those lands from thenceforth, but the deed was never exe- cuted by the grantees. The company con- tinued to use sucii station for about ten years, when they removed it to a distance of one and a half miles. Held, that the act of the company in thus placing at;d using the station was a substantial compliance with the agreement, and that they were not bound to continue that station there for all time. Jessup v. Grand Trunk R. Co., 7 Ont. App. 128; reversing 28 Grant Cli. 583. O. Evidence on question ot abaii- (lonniciit.— An abandonment of a right of way is usually and properly shown by acts which do not appear of record; and it need not appear of record in order to be effectual. West cot t V. Ne^u York (S- A^. E. R. Co., 152 Mass. 465, 25 A^ E. Rep. 840. The failure of a company to complete its road, and permitting the owners to use the land upon which its line is located for the prescribed statutory period, and for pur- * Removal and abandonment of railroad sta- tions, see note, 50 Am. & Enu. R. Cas. 14. See also SlW'I'tONS AND DKi'ors, III, I. Wliat constitutes a station within the meaning of titatuies relating to tlie abandonment of sta- tions, sf<; iiDic, 21 Am. iV I"n<;. R. Cas. 241. ABAN'DONMENT, 7, 8. poses inconsistent with its occupation and use as a railroad, is evidence of an intention to surrender the easement, and may consti- tute, an abandonment of ilie lijjjlit of way. Ikattie V. Carolina Cent. R. Co., ^0 ,/w. &^ Eng. R. Cas. 524, 108 N. C( N. E. R. Co., 152 Mass. 465, 25 A'. /•;. Rep. 840. 7. Coiiseqiieiices orubaiuluuiiiciit, {jt'iierally.* — Under the provisions of the Va. code of 1849, relating to railroads, no forfeiture of title to railroad property on the ground of abandonment can be enforced except by the stale. McCoiiihay v. Wright, \2\ U. S. 201, 7 Sup. Ct. Rep. 940. The question as t(j the abandonment or forfeiture of a location for branch railway lines is for the commonwealth alone, and third persons cannot assume the right to raise such a question. Pittsburgh, V. &> C. R. Co. V, Pittsburgh. C. >&^ S. L. R. Co. (Fa.), 57 . //«. &> E/tg. R. Cas. 46. A landowner who retains the fee in the land over which a railroad has obtained a right of way cannot maintain a p oceeding to recover possession of the la' 1 on the ground that the company has diverted it from its original purpose by leasing it to third parties for business not connected with railroading. A private party cannot take advantage of a mere misuser of the land by the company ; his remedy would be by a proceeding to recover additional dam- ages. Proprietors, etc., v. Nashua &•> L. R. Co., 104 Mass. I.— Distinguished in Il- linois C. R. Co. V. Wathen, 17 111. App. 582. Quoted in Schulenburg v. Memphis, C. & N. W. R. Co., 67 Mo. 442. Reviewed in Peirce v. Boston & Lowell R. Co., 27 Am. & Eng. R. Cas. 359, 141 Mass. 481 ; Lyon 7'. McDonald, 47 Am. & Eng. R. Cas. 217, 78 Tex. 71. 8. reversion to abnttiii^Towi^ftr + Upon the abandonment by a raiho ••.■1- pany of a portion of its road unde; visions of Mich. Act No. 275, Law , c; ''.cj, the title to the land which was ti!^ ,'or right of way, and for the other purposes oi the road, reverts to the original owners, and no reconveyance or order of the court is necessary. Elittt &* P. M. R. Co. v. Rich, 91 Mich. 293, 51 A'. W. Rep. looi. // seems that upon the company ceasing to use the lands for the purpose for which alone they had been conveyed, the grantor would be at liberty to resume possession. * Abandonment of road as a defence to an action to recover subscriptions, see note, 30 Am. & Eng. R. Cas. 528. Liability of company for loss to landowner, see note, 27 Am. & Eng. R. Cas. 4^0. f Conveying a right of way with condition that it should revert if not used for railroad pur- poses at any time. Company may abandon, and action for specific performance will not lie, see 3O Am. & Eng. R. Cas. 428— abstr. AHAXDONMliNT. H, i>. Ji:ssii/> V. CniVhl I'ntnk R. Co., 7 Out. App. 128; riTer.u'ii_i; 2S Gr. CIt. 583. A right of way was conveyed to a railroad company and its assigns forever, " so long as the said land hereby conveyed shall be used for railroad purposes." The roadbed was graded, but the successor of the grantee completed the road by a new route. The owner of the tract occupied the right of way for five years after the completion of the road by the new route, and put valuable im- provements upon it without objection from tiie railroad company. NeM.thm the right of way was abandoned, and reverted to the owner of the tract of which it was originally a part. Roanoke Iiiv. Co. v. Kansas City &^ S. R. Co. {Mo.), 51 Am. &• Eng. R. Cas. 426, 17 .S". W. Rep. 1000. A conveyance made to the city of B., pur- suant to acts of the legislature (ch. 220, N. Y. Laws j8s3, and ch. 475, Laws 1855), of lands for the purpose of a street which had been acquired by the B. & J. R. Co. by proceedings under its charter (ch. 256, Laws 1832), was eiiectual only as a relinquishment of the right of the company to the use of the lands; and upon the abandonment of the use, the owners of the fee were entitled to re-enter and take possession. Heard v. lU-ooklyn, 60 A^. Y. 242.— Distinguished IN Beal V. New York C. & H. R. R. Co., 3 How. Pr. N. S. (N. Y.) 329. Deeds by the owners of the fee of adjoin- ing lands which bounded them by the rail- road, executed while the lands were in the use of the corporation, in the absence of covenants that upon the termination of such use said lands should be thrown open as a public street, did not operate as a dedi- cation thereof for that purpose, and in no way impaired or affected the owner's title. Heard v. Brooklyn, 60 N. V. 242. The law vested in the state a title " in perpetuity " to lands acquired for the state canal. A deed was made conveying the land for the canal, but " excepting there- from ground for a basin." The canal and basin were built, but no damages assessed, and afterward the same were sold to a rail- road and abandoned. He/d, that the reser- vation in the deed was of no effect ; that the state took an absolute estate in the basin, and the same did not revert on aban- donment. The title could not be affected by the owner's failure to have damages as- sessed. Robinson v. West Pennsylvania R. Co., 72 Pa. Sf. 316. The Vermont C. R. Co. acquired title to certain land in Vermont by warranty deeds, in the usual form, which land they subse- quently abandoned for railroad purposes, liaving changed the location of their road- bed. Held, that the land did not revert, by reason of such abandonment, but that the railroad company, by said deeds, acquired a title in fee to the same. Page v. Heineberg, 40 Vt. 81. O. Compelling rebiiiltliiit; of aban- doned line. — Mandamus will lie to com- pel a railway company which has taken up its track to reinstate and lay it down again, where, by the act of parliament under which it was constructed, the public were given the beneficial enjoyment of such railway. Rex V. Severn &• W. R. Co., 2 B. &> A. 646. Where the facts show that the public will be as advantageously served by a train ser- vice of a railroad company over a leased line between two points as it would be by a service over a line of its own which the company has abandoned, the leased line be- ing but a few feet from the old line, and it appearing that the expense of rebuilding and operating the old line would be very heavy and would be without practical ad- vantage to any one, the court will refuse to enforce an order of the railroad commis- sioners compelling the company to rebuild and operate its abandoned line, since such an order is unreasonable and unjust within the meaning of the statute. State v. Des Moines &> Ft. D. R. Co. [Iowa), 49 Am. &• Eng. R. Cas. 186. It cannot be said that there is any legal obligation of a railroad company to operate its trains on its own line rather than on a leased one if the public are served equally well, although the company has received a land grant from the state in consideration of its completing the line which it has aban- doned. The receipt of such aid from the state does not take away from the company its right to maki such changes in its line as its interests might dictate, by placing its train service for some parts of the way on a leased line of another company, providing that such a service is maintained as was contemplated when its obligation to the public was assumed. State v. Des Moines &^ Ft. D. R. Co. {Io7ua), 49 Am. &* Eng. R. Cas. 186. The fact that the lease of the track oper- ated will soon expire, and that it contains no provisions for a renewal, will not war- 6 AHANDONMENT, lO, 1 1. -ABATliMKNT, I. liint tlii'ctifonTincrit ul ilic order lorcl)uilfl tlic aljatidoncd ti,i C. D. R. Co., 27 Am. &* Enif. R. Ciis. 434, 32 C/i. D. 438. Where the act incorporating an English railroad contains the usual clause that in case of abandonment of the road the parlia- mentary deposit shall be applicable towards compensating any landowners whose prop- erty may have been interfered with or rendered less valuable by the location, con- struction, or abandonment of the road, as a rule the landowner can only claim compen- sation for acts done or omitted by the com- pany under its statutory powers, and not compensation on account of any collateral agreement that the company may have en- tered into. /// ;■(' Ruthin &^ C. D. R. Co., 2y Am. S" Eng. R. Cus. 434, 32 Ch. 1). 438. — Rkvikwino /« ;- Dist. T. Co. [1893],' 3 Ch. 463. ABATEMENT. Forra and sufficiency of plea in. see Plead- INO, I, 3. .... 6 n I. GROUNDS U. BEVIVAL ; CONTINUAITCE I. GROUNDS. 1. Ineapacity to sue.— Where a suit has been properly brought, the defendant cannot cause its abatement by afterwards creating a state of facts against the ability of the plaintiff to sue. Board of Com' rs v. Lafavette, M. &> B. R. Co., 50 fnd. 85, 8 Am. Ry. Rep. 324. A suit by an abutting owner to restrain the operation of an elevated railway in the I 4 AHATKMHNT, 2. Ureet, and to recover dainaf'iis, will iioi abate if the plaintiff conveys the premises pending the suit. Moss v. A'rw York El. K. Co.. 27 Abb. N. C. {N. Y.) 3«8. '7 A'- J^- Supp. 586. 2. Aiiotlier a('ti«>n pcudiiii;. - (1) IV/wn Ground.— Where two actions are l.rought by the same parties, involving the same state of facts, both praying the same relief, the suit last commenced should be stayed until the matters have been fully heard and decided in the first suit. New York, L. E. &• IV. R. Co. v. Robinson, 15 A^. Y. S. K. 237, 48 Hun 614. Under the practice in New York, for a former suit to be ground for abatement of a second suit it must appear that both suits are in the state and the first suit must have been pending when the second was com- menced. HadJen v. St. Louis, I. M. &* S. A'. Co.. 57 /^/ow. Pr. (N. Y.) 390. (2) IV hen not Ground. ■— A creditor of a railroad who is not made a party to a gen- eral creditors' bill filed against the company in a state court is not prevented thereby from bringing a separate suit in a federal court on his demand. Parsons v. Green- ville <> C". R. Co., I Hughes ( U. S.) 279. Regiiliir proceedings to condemn land for the purpose of a railroad do not abate upon an agreement between the parties to arbi- trate, but where no reference has been had ; and especially is this so where the party raising the question has gone to trial in the eminent-domain proceeding without objec- tion. Laflin v. Chicago, IV. &^ N. R. Co., 34 P'ed. Rep. 859. A suit in equity in a state court in Ala- bama by a holder of railroad bonds, en- dorsed by the state, on behalf of himself and all other holders of the same class of bonds, does not abate by reason of the fact that another suit relating to the same subject- matter is pending in a United States circuit court in Tennessee. Forrest v. Luddington, 12 Ant. to apply for a stay of the subsequent suit, or reserve final judgment pending the other suit. Vail\. Central R. Co. (N. J. Eg.). 4 Atl. Rep. 663. The pendency of another action in perso- nam for the same cause in a court of the United States or of a sister-state is no de- fence to an action in a New York court against the trustees under a railroad mort- gage. Hollister v. Stewart, 38 Am. (S^» Eng. R. Cas. 599, III A^. K. 644, 19 A^. E. Rep. 782, A pending suit by a director to compel the officers of a railroad to account will not prevent the attorney-general from institut- ing a suit to remove the officers, and to com- pel an accounting by the officers, including the plaintiff in the first suit. Keeler v. Brooklyn El. R. Co., 9 Abb. N. C. {N. Y.) 166; People V. Bruf, 9 Abb. N. C. {N. Y.) 153, 60 How. Pr. I. (3) Illustrations. — A foreclosure suit on part of a railroad was commenced in a U. S. court by the first-mortgage trustee. Another suit was begun against him and others in a state court to foreclose a subse- quent mortgage, covering the entire road. Held, that the complainant in the suit fore- closing the first mortgage could not set up his suit in bar of the second suit, and espe- cially where it appeared that, on account of citizenship, the first bill was dismissed as to complainants in the second bill. Meyer v. Johnson, 53 Ala. 237, 1 5 Am. Ry. Rep. 467. The same person made two subscriptions to the stock of a railroad, the one in his in- dividual name, the other as executor. Under the terms of the subscription, each sub- scriber was severally liable for the subscrip- tions. Held, that the pendency of a suit on one subscription was no ground for abating a suit to recover on the other. Erie <&«• A'^, Y. C. R. Co. V. Patrick, 2 Abb. App. Dec. (N. Y.) 72, 2 Keyes 256. To an action by a personal representative a railroad company set up, as a defence and ground for abatement, that the, same plaintiff had brought a former action for the same cause, which had been compromised and a release given. After the trial the company offered as evidence an unverified petition of the plaintiff addressed to the proper court, praying leave to settle the first suit; also an order of the court granting 8 ABATI'MI'A'T, M, 4. such leave, and a re'easc under seal. UelU, that such evidence should have been ad- mitted, and for a refusal to admit it a ver- dict in favor of the plaintiff should be set aside. Mtirsymnvski v. Delaware, L. 6^ \V. R. Co., 39 .V. ]'. S.R, 299, 15 .V. V. Supp. 841. ;j. C'olliiHioii—C'liaiii|>crt,v.— Proof in an action against a railroad that certain oflicials of a rival corporation have assisted the plaintiff in preparing his case, and that plaintifT had close business relations with such rival corporation, is not sufficient to sustain a plea in abatement charging "col- lusion." l)ins)iiore \. Central R, Co., id Am. Sf* Eng. R. Cas. 450, 19 /'"tv/. AV/». 153. Under' Iowa Code, § 2732, providing that matter in abatement m^y be stated in the answer or reply, either together with or without causes of defence in bar, it is not proper in an action against a railroad to re- cover damages to allow evidence that the attorney had an agreement with his client that was cliampertous, i.e., that he would prosecute the claim for a certam share of the damages, unless such agreement be pleaded. Allison v. Cliicago (^ N. W. R. Co..i\2lo7ua 274.— QuoiED IN Small v. Chi- cago, R. I. & P. R. Co., 55 Iowa 582. 4. Death of'plaintift'or co-plaiiitiif. — (i) Action abates. — The right of action for a tort to the person dies with the person injured. Chichester v. Union Transfer Co., I MacArth. (D. C.) 295. If a plaintiff in an action for personal in- juries dies before verdict, the action abates. Baltimore &> O. R. Co. v. Ritchie, 31 Md. 191. Under McClellan's Fla. Dig. 830, § 77, an action against a railroad company to recover for personal injuries abates on the death of the plaintiff. Jacksonville Street R. Co. v. Chappell, 22 Fla. 616, i So. Rep. 10; Jacksonville Street R. Co. v. Chap- pell, 28 Am. (Sw Eng. R. Cas. 227, 21 Fla. 175. A widow's suit for negligent killing of her husband cannot be revived and pro.-.e- cuted in name of her personal representa- tive where she dies during its pendency. Loagite V. Memphis &" C. R, Co., 52 Am. <&«» Eng. R. Cas. 635, 91 Tenn. 458, 19 S. IV. Rep. 430. An action by a husband to recover dam- ages for the killing of his wife abates on the death of the husband ; section i of article 2 of the Code of i860, which provides for the survival of personal actions, expressly ex- cepting from itp operation actions for in- juries to the person. Harvey v. lialtimore &* O. R. Co., 70 Md. 319, 17 ////. Rep. 88.— Following Ott v. Kaufman, 68 Md. 56. Distinguishing Cregin z/. Brooklyn Cross- town R. Co., 83 N. Y. 596 ; Potter v. Metro- politan Dist. R. Co., 30 L. T. N. S. 765. The fact that the statute provides that the suit shall be brought in the name of the state, for the use of the person entitled to damages, creates no contractual relation between the state, the legal plaintifT, and the defendant, and on the death of the equitable plaintiff the suit cannot be car- ried on in the name of the state. Harvey V. Baltimore &• O. R. Co., 70 Aftl. 319, 17 All. Rep. 88.— Distinguishing State v. Dorsey, 3 Gill & J. (Md.) 75 ; Fridge v. State, Id. 103; Logan V. State, 39 Md. 177. Under the Tenn. act of 1851, ch. 17, as amended in 1871, ch. 78, providing that the right of action to a person who is wrong- fully injured shall not abate by his death, but shall pass to his widow or children, or to his personal representative for the bene- fit of his widow or next of kin, free from the claims of creditors, if the deceased leaves no widow, child, or next of kin, the action abates, and cannot be prosecuted for the benefit of creditors or of the state. East Tenn., V. *S- G. R. Co. v. Lilly ( Tenn.), 18 S. IV. Rep. 243. (2) Action does not abate. — The general rule in Colorado is that actions at law do not die with the person ; the exceptions i .e specified by statute. Kclley v. Union Pac. R. Co., 16 Colo. 455, 27 Pac. Rep. 1058. An action against a railroad company for personal injuries, pending when the Georgia act of November 12, 1889, amending sec- tion 2967 of the Code, was passed, was not abated by the death of the plaintiff; nor is that act, as applicable to actions pending at the time of its passage, unconstitutional. Pritchardv. Savannah St.&^R. R. R. Co., 87 Ga. 294, 13 S. E. Rep. 493.— Distinguish- ing Wilder v. Lumpkin, 4 Ga. 208; Chi- cago, St. L. & N. O. R. Co. V. Pounds, 1 5 Am. & Eng. R. Cas. 510. Following Johnson V. Bradstreet Co., 87 Ga. 79. Reviewing Bailey v. State, 20 Ga. 742. An action brought to recover damages for personal injuries sustained by the plain- tiff as a passenger on defendant's railroad does not abate by the death of plaintifT. — Peedle v. North Carolina R. Co., 63 N. C. abati:m1':nt, n h. 9 2^,S,_niSTINOUISHKI> IN Hatlllilll V. Ricli- mond & D. R. Co.. 87 N. C. 351. a. nt'ti'V vordlft or decision.— (1) Action (jAi/V.f. — The rule of tlie common law that an action to recover daniiiges fo' a personal injury abates on the death of '.he plaintirt is not changed by N. Y. Cocie .;i Civ. Proc, except where "a verdict, report, or decision" has been rendered upon the issues (i! 764). L'orhett v. Twenty-third St. a: Co., iH a/, y. 579. 21 .V. /i. A'ffi. 1033. 24 .V. y, s. A\ 538. A nonsuit on trial by jury is not a "de- cision" within the meaning of said Code, nor is an order of General Term reversing a judgment entered on the nonsuit; that word refers to a decision made by a court on trial without a jury. Corltett v. Twenty- third St. N. Co., 1 14 A'. 1'. 579, 21 N. E. Rep. 1033. 24 A'. }'. .S-. R. 538. Actions for personal injuries ibate upon the death of the plaintiff. A procurement of a verdict does not save it from the rule where such verdict is set aside on appeal. Ke/sey v.Jewett, 34 llun (A. K) 11. Pending an a()peal in an action against a railroad to recover for personal injuries, the plaintiff tlierein died and his personal repre- sentative was made a party. Held, that the action should abate upon being remanded to the lower court. Thompson v. Centra! R. Co., 60 (7(1. 120. P. brought an action against a conductor of the I. C. R. for injuries received in at- tempting to board a train alleged to be caused by the negligence of the conductor in not bringing the train to a standstill. On the trial P. was nonsuited, and on motion to the full court the nonsuit was set aside and a new trial ordered. Between the ver- dict and the judgment ordering a new trial P. died and a suggestion of his death was entered on the record. On appeal to the Supreme Court under Lord Campbell's Act or the equivalent statute in New Brunswick (C. S. N. B. ch. 86), an entirely new cause of action arose on the death of P. and the ori- ginal action was entirely gone and could not be revived. IVhite v. Parker, 16 Can. Sup. Ct. 699. (2) Action does not abate. — After a decree for the partition and sale of lands, the action does not abate by reason of the death of two of the complainants, but survives to their co-complainants, it appearing that all the parties to be affected by the decree are b°tore the court. Speck v. Put/man Pa/ace Car Co., 121 ///. 33. 1 2 A'. £. Rep. 21^, 9 IVgst. Rep. 771. A claim for damages for a personal injury is merited in a judgment, and a reversal by the appellate court does not destroy but merely suspends it until acted upon by the su|>reme court ; hence the action will not abate where the plaintiff dies pending an appeal, /.e^cis v. .SV. Louis iS-* /. .)/. A', Co., 59 A/o. 495, 18 Am. Ry. Rep. 450. Under N. Y. Code of Proc, § 121, enact- ing that after a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, a ver- dict in favor of a plaintiff against a railroad to recover for a personal injury is within the rule, and the a'~tion will not abate upon the death of the plaintiff. Lyons v. Third Ave- nue R. Co., 7 Rod/. (TV. y.)6os. H. Dvatli of real party in interest. — A Wisconsin statute provided that the representative of a person killed by the negli- gence of another might recover damages for the benefit of the husband or wife, or if neither, for the lineal descendants, or if none, for the lineaj ancestors. L/e/d, that an action comnenced under the statute by the representative for the benefit of a hus- band or wife abates upon the death of either. The personal representative, though willing to prosecute for the person next in order, cannot do so. lVood7vardv. Chicago &* N. JV. R. Co., 23 PVis. 400. 7. Dissolution of corporate de- fendant.— A corporation becoming con- solidated with another and changing its name pending a suit against it is not so dis- solved, nor its original liability so extin- guished, as that the pending suit abates. And if the rule were diffeient, the question could not be raised by motion in arrest of judgment. Prosecuting an appeal and giv- ing bond in the name of the original cor- poration estops it from denying its corpor- ate existence. East Tenn. Of G. R. Co. v. Evans, 6 Heisk. {Tenn.) 607.— Applied in Louisville, N. & G. S. R. Co. v. Reidmond, II Lea (Tenn.) 205. Quoted in Kelleyv. Mississippi C. R. Co., 2 Flip. (U. S.) 5S1, I Fed. Rep. 564. 8. Appointment of receiver.— A suit against a railway corporation will not be abated upon its plea averring that the suit had been brought after the road had passed into the hands of a receiver, and that pro- cess had been served upon a station agent of the receiver, where it appears that such 10 AMA'n;MI.\ I, U t'2. av;(nt had been originally iMDploycd by tbi- (ritnpany and (ontinucd in same scrvifi: iiiuler llic receivership. Simpson v. /msI Tfnn., y.&'d. A'. Co.. 89 /'<•«//, 304, 1 5 S. 11'. N,/>. 735- 1». l^\|iirutioii ol'rliartiT. A person desiriii^j to buy a ti( kel (or his |)assage bc- ( anie involved in u (piarrel witli the tick.t agent and was assaulted by liim. While an action was pending af^aiiist liie corporation to recovc! daina(,'i-s for the assiiult, the charter of the corporation ex|)ired. J/M, that it was proi)er, under tiie New York statute, to make an order continuing the action ajiainst the directors of the corpora- tion. Ili'f'woilh V. L'nion Juiry Co.. 62 ////// (A', y.) 257, 41 A'. V. s. a: 783, t(> N. v. Supp. 6y2; appeal dismissed, 131 A'. )', 645, 43 A'. )'. .v. R. i/>2. .Mier an action for calls has been set flown for trial it is loo late for the defendant to ajiply to set aside the proceedings (ju llie ground that the com[)any was virtually ex- tinct, it api)earing tiiat he had known the facts f(jr a l» /i'. Co. V. //'///, 5 Af. &^ C. 274, 6 .Si ('// A'. A'. 342, 3 Railw. Cos. 441, 7,////-. 238. I (). <'liaii(;«> of roiiKMly by Ntatuto.— Pending an action against a railrcjad to re- cover a statutory penalty for not stopping its trains at the inierscction of its railroad with another, the statute giving the penalty was changed, prescribing a different form of action, the second statute being declared retroactive, //e/d, that the action must abate. J//.rv. lUinois C. R. Co., i\6 III. 502, 6 .\'. /:. AV/. 42. 11. Nrrosslty of application to rourt.— Actions for personal injuries abate upon the death of the plaintiff, and this without any formal plea on the part of the defendant, it being sufHcient for the defen- ilant to ask the instruction of the court. lUiltimore &^ I). A'. Co. v. Ritchie, 31 Md. Where a cause of action survives, the ac- tion does not abate by the death of the plaintilT ipso facto, but only upon the appli- cation of the party aggrieved ; and then only in the discretion of the court, and in a time to be lixed, not less than six months, nor more than one year from the granting of the order. Moore v. North Carolina R. Co., 74 A'. C". 528. 12. Stipulation to prevent abate- UHMit — Though an action for personal in juries, under the New York law, abates wit.. the death of the pl.iintifT. >et ii is lawful for a flefeiidant or its attfirncy to enter into an agreement, for the purpose of obtaining a continuance, to the etlect that the cause of action shall not abate by the death of tiie plaintifT at any time before verdict, and the courts will enforce such an agreement by |)rosecuting the action in the name o( the personal representative of tlie plaintifT. Ma; Hire v. AVw VorJk C. &» //. R. R. Co.. 6 Daly (A'. )'.) 70. In an action against a railroad company to recover damages for injuries sustained by a passenger in consequence of being unlaw- fidly ejected from its cars, flcfcnflant's counsel, as a condition for putting the cause over a circuit, stipulated that, in case of the death of plaintifT before final judgment and determination of the action, tlic alleged cause of action should survive, and any ver- dict and judgment be regarded as if rendered in plaintitT's lifetime; and also tiiat, in case of such death, plaintiff's representative might be substituted as plaintifT. Held, that the stipulation continued in force until final judgment, although meanwhile a verdict and judgment In plaintiff's favor had been set aside. Cox v. Neu< York C. &^ II. R. R. Co.,6iN. K. 414; re^iersing \IIun 176,6 T. 2\. II. REVIVAL : CONTIHUANOE. 14. What uctioiiM Hurvlve.*-The right t/iilati',ii. l\,p. 474; rn'ers/ng 19 //un 341; s,e also s. c, 18 Ihin 3O8. DisiiNGinsH- iNt; Moore v. llaiiiilion, 44 N. Y. 666; Harvey:'. Baltimore & O. R. Co., 70 Md. 319; Maxson c. Delaware, L. A W. R. Co., 112 N. Y. 559, 20 N. v.. Rep. 544, 21 N.Y. b. R. 767. Such an action is an action " for wrongs " within the meaning of 2 N. Y. Rev. St. 457, % I, and does not abate on the death of the plaintiff. Such action is nut within the ex- ception to ji 2 of such stcutite, providing for actions upon the cas*- ior injuries to tlie per- son of tlie jilaintiff. Cretin v. Ihooklyn Cross-tmvn li. Co., 75 A'. )'. njz, 31 Am. Rep. 459; affirming 56 /Aw. /V. 32.— Rkvikw!. IN (lalvcstoii, H. & S. A. R. Co. 7/. Roe- mer, I Tex. Civ. App. iiyi ; Foels v. Town of Tonawanda, 20 N. Y. Slipp. 447. An action by an abutting owner to re- strain the operation of an elevated railway in the street, and to recover damages, is not an action of trespass, but one in equity which will survive to the executor and de- visee on the plaintiff's death. Sanders v. A'ew York El. R. Co., 1 5 Daly (N. Y. i 388, 7 .V. Y. Supp. 641, 27 A'. Y. S. R. 795. -Re- viKWiNG Shepard 7'. Manhattan R. Co., 5 N.Y. Supp. 189. Ari'LViNG McCrca 7'. New York El. R. Co., 13 Daly (N. Y.) 302. Approving Henderson v. New York C. R. Co., 78 N. Y.423.— Rkvikwek in Werfel- mcn V. Manhattan R. Co., 16 Daly (N. Y.) 355- 15. What do not survivo.— An exec- utor cannot maintain an action for a tres- pass to realty done in the lifetime of the testator, as such actions do not survive. Reeii V. Peoria ., 18 ///. 403. A right of action for a personal injury does not survive or pass to the personal rep- resentative. Sawyer v. Concord R. Co., 58 A'. H. 517.— Distinguishku in Clark v. Manchester, 62 N. H. 577. A right of action against a railroad com- pany f r ejecting a passei\<'er does not sur- vive and cannot be prosecuted by the per- sonal representative. Hannah v. Richmond C. R. Co. V. T}'>ie {Tettn.),7 Am. &^Eng. R. Cas. 515. Wliere a landowner dies pending a pro- ceeding to condemn land for railroad pur- poses, or pending a proceeding to reverse a judgment therein, the proceeding must be revived in the name of the landowner's heirs or devisees, and not in the name of his per- sonal representative. Valley R. Co. v. Rohm, 29 Ohio St. 633. 17. Substitution of new party. — Under the California practice, on a sugges- tion made to the court of the death of a plaintitT and on satisfactory proof, it is pro- per to substitute the personal representa- tive of the plaintiff in his stead. If this prac- tice should lead to a substitution of one who had not qualified as such personal represen- tative, the CO' rt could make the propercor- rection. Taylor v. Western Pac. R. Co., 45 Cal. 323. Under Conn. Gen. St. 1S88, § 1005, pro- viding that upon the death of a plaintiff the personal representative may appear and prosecute the suit, the appearance must be at the next term after plaintiff's death. So where a suit was brought against a railroad for a personal injury, and pending which the plaintiff died, and the administratrix was not appointed for 20 months, ant! did not apply for leave to prosecute the suit for 17 days after her appointment, the action was barred, no good or sufficient reason for the delay iippearing. Johnson v. New York &> N. E. R. Co.. 56 Conn. 172, 14 Atl. Rep. 773. In Tennessee a new plaintiff can be substi- tuted without a new process upon the death of the one bringing the action, under !;§ 2291 and 2292 of the code, allowing actions for personal injuries to proceed in the name of a personal representative on the death of the plaintiff. Flailey v. Memphis 6- C. R. Co., 9 Heisk. {Tenn.} 230. — DISTINGUISHED IN Webbw. East Tennessee, V. & G. R. Co., 42 Am. & Eng. R. Cas. 44, 88 Tenn. 119, 12 S. W. Rep. 428 ; Nashville. C. & St. L. R. Co. V. Foster. 10 Lea (Tenn.) 351. ABUTTING OWNEBS. Consent of, to construction of underground railroad, see Undercikound Railways, 2. to occupation of street, see Elevated Railways, I, 3 (c) ; Street Railways in. 3. under Rapid Transit Act, see Rapid Transit Acts, 6. Relative rights of company and, see Right OF Way, II. Release by, see Release, IV. Remedies of, against steam railways in streets, see Streets and Highways, IV. Reversion to, of land taken, see Eminent Do- main, XIII, 3. on abandonment of railway, see Aban- donment, 8. Right of, to build fence where company fails to do so, see Fences, II, 4. to tunnel under railway, see Mines and Mining, 1* Rights and remedies of, generally, see Ele- vated Railways, III ; Eminent Do- main. Rights of, as against street railways, see Street Railways, V. as respects construction of telegraph lines, see Telegraph Lines, !• as respects embankments, see Embank- ments, 1, 2. as respects steam railroads in streets, see Streets and Highways, III. See also Riparian Rights. ACCEPTANCE. Of charter, see Charter, I, 2. — debentures tendered before suit, see De- bentures, 14. — dedication, see Dedication, 4. — negotiable paper, see Bills and Notes, I, 3. — road substituted for that taken, see Turn- pikes, 3. ACCESS. To property, covenant to provide, see Cove- nants, 1, ACCIDENT INSURANCE, 1, 2. 13 ACCIDENT. By cars leaving track, see Derailment. — collision, see Collisions. Involving loss of property, see Carriage of Merchandise, IV. Notice of, to Insurance Company, see Acci- dent Insurance, 8. On tramways, see Tramways, 6, 7. — Sunday, see Sunday, 6, 8. To children, see Children, Injuries to. — employes, see EMPLOYfes, Injuries to. — passengers, see Carriage ov Passengers, III. To trespassers, see Trespassers, Injuries TO. When virithin terms of insurance policy, see Accident Insurance, 2. Sjc also Electric Railways, II ; Elevated Railways, IV • Explosions ; Fires ; Flying Switch ; FRiCHTENEO Teams. ACCIDENT INSURANCE. See also Relief Associations. 1. Construction of policy, gener- ally. — An agent of a transfer company whose duties require him to get on trains before they reach the station, for the pur- pose of changing baggar'^-checks and ar- ranging for its transfer, is "a railroad em- ploye" within ':he meaning of a provision in an accident policy excepting such em- ployes from a provision against entering moving trains, Co//en v. Fidelity 6- C. Co., 41 Fed. Rep. 506. The effect of "from" in a policy "for twelve calendar months from November 24, 1887," is to exclude November 24, 1887, and to include November 24, 1888, in the period covered by the insurance. South Stafford- shire T. Co. V. Sickness <&>» A. A. Assoc. [1891], I Q. Z?. 402. An accident policy contained a provision limiting the liability of the company to accidents received by the insured while act- ually travelling in a public conveyance pro- vided by common carriers, and in compli- ance with all rules and regulations of such carriers. Held, that under this provision the insured might recover for an accident happening while getting on or off a train ; but could not recover for an accident while attempting to get on a train after it has reached its destination. Tooley v. Railway Pass. A. Co., 3 Diss. (U. S.) 399. 2. What accidents are within the policy.* — (i) In general. — Where an acci- dent policy covers only risks while actually travelling, a recovery may be had for an in- jury while getting into a public conveyance while in motion. Chatiiplin v. Railway Pass. A. Co., 6 Lans. (A'. F.) 71. A provision in an accident policy against standing or walking on a railroad track or bridge does not include crossing a track at a public crossing. Duncan v. Preferred Mitt. Ac. A. of N. v., 36 N. V. S. R. 928, 27 /. (&«' 5. 145, 13 A^. Y. Supp. 620. An injury to a passenger owing to a slip- pery car-step is an accident within the meaning of an insurance policy agreeing to pay a certain sum on account of injuries happening to the assured from railway ac- cidents. Theobald v. Railway Pass. A. Co. , 10 Exch. 45, 2 C. L. R. 1034, 12 Jur. 583, 23 L. /. Exch. 249. (2) Illustrations. — A contract of life and accident insurance excepted from the risks covered by it injuries resulting from being upon the platform of moving cars, or from attempting to enter or leave such cars in motion, this exception not being appli- cable, however, to the exposure of railway employes in the performance of their duty. The assured, a shop-hand of a railway com- pany, while being carried homeward from the shop at the close of the day's work, upon one of the company's trains, went out upon the platform while the train was in motion, intending to get off when it should stop, for the purpose of crossing over, by a switch, to another track. He was thrown off and killed. Held, that the case was within the specific exceptions in the con- tract, and the insurer was not liable. Hull V. Equitable Ace. Assoc. (Minn), 42 A^. W. Rep. 936. An engineer who was killed had a ticket issued by a passenger assurance company, in- suring him against death " caused by acci- dent while travelling by public or private conveyance provided for the transportation of passengers." The proof showed that de- fendants were selling two classes of tickets, one known as the " travellers" risk," the other as the " general accident," the latter being * What is injury caused by "accident" within the meaning of insurance laws, see notes, 8 Am. Rep. 2ig, 54 Id. 302. What is an injury caused by " outward r nd visible means " within meaning of insurance laws, see note, 7 Am. Rep. 414. 14 ACCIDENT INSr RANCH, :i-8. hi scld for the liighest price; that deceased purchased the latter ; that at the time of the purchase defendant's agent knew him to be an engineer, and liad no instructions not to sell to railroad employes. J/M, that de- ceased was insured against all accidents, without regard to the capacity in which he was acting; that the ticket was intended to cover the accident by which he met his death ; and that defendant was liable. Brcnun V. Raihi.Hiy Pass. A. Co., 45 Mo. 221. ;j. Proxiniiito and roiiiotc caiiso.— The death of one assured was due to the "elTccts of an injury caused by accident," where the death, thougii due to pneumonia, would not have occurred but for the pain, worry, and weakness resulting from the ac- cident. Isitt V. Riu'hmiy Pass. .1. Co., 22 Q. B. D. 5o.^. 4. Soiiiiiaiiibiilisiii o£' traveller. — In an action to recover from an insurance com- pany an averment in the complaint suffi- ciently negatives a provision in the policy exempting from liability for injuries self- inflicted, or those that result from design or voluntary e.xposure to unnecessary danger, where it charges that the insured fell asleep from weariness and the motion of the cars, in the night-time, and while he was in a dazed and unconscious condition, and not kiunving or realizing what he was doing, in- voluntarily arose from his seat in the car, and walked unconsciously to the platform of the car, and without fault on his part fell to the ground and was injured. Schcidcrer v. Travellers' Ins. Co. , 1 2 Am. vSn^ Eng, /?. Cas. 160, 58 }Vis. 13, 16 A'. IV. Rep.ii. 5, "Piiblie or private eoiiveyanee." — A holder of an accident policy was insured to a certain amount against death caused by accident while travelling by public or pri- vate conveyances, provided for the trans- portation of passengers. In passing from a steamboat to a connecting railway the in- sured fell upon the slippery sidewalk which it was usual for travellers to use in passing from one line to the other, and was so in- jured as to die. Held, that the death was within the terms of the policy, and a recovery could be had. Northrup v. Railway Pass. A. Co., 43 A'. Y. 516. 6. Total or partial (liHability. — Where an accident policy provides for an indemnity while the insured is totally dis- abled, there can be no recovery for a par- tial disability ; neither can there be a recov- ery where the insured is so disabled as to prevent him from following his ordinary avocation, but where he is still able to en- gage in some other employment. Lyon v. Railway Pass. A. Co., 46 /owa 631. 7. Payment of preiuiiiin.— A brake- man who had taken an accident policy gave the insurance company a written order on the railroad company that employed iiini to pay the insurance company out of his wages the instalments of the premium as they fell due. This was delivered by the insurance company to the railway company, according to custom. The policy provided that so long as an instalment remained unpaid there could be no claim for any injury received meanwhile. The railway company neglected to pay one of the instalments, and within the period which it should have covered the brakeman was killed. I/eld, that notwith- standing the non-payment, the beneficiary in the policy was entitled to recover; the arrangement between the insured and the companies amounted to an assignment to the insurance cor.ipany of enough of his wages to pay the premium when the instal- ments fell due, and must be regarded as a payment so long as the insurance company did not notify the insured that it was not paid. Lyon v. Travellers' Ins. Co., 55 Midi. 141. 20 A'. W. Rep. 829. 8. Notiee of aceideiit to eoiiipaiiy. Where a policy contains a provision that in case of accident immediate notice shall be given the company the giving of such notice is essential to a recovery, but what is a suf- ficient notice is a question for the jury. Lyon V. Railway Pass. A. Co., 46 Io^>a 631. A policy stipulating that failure to notify the company of any injury for the space of ten days after it is received shall bar all claim under the policy, is valid; and when such stipulation has neither been complied with nor waived, the assured cannot recover upon the policy. Heywood v. Maine Mui. Ace. Assoc, 85 Me. 289, 27 Atl. Rep. 154. Where a policy requires imniediate notice in case of accident, a complaint to recover the amount of the insurance is good that states generally that the insured has per- formed all the conditions of the policy on his part. Scheiderer v. Travelers' Ins. Co.. 12 Am. &> Eng. R. Cas. 160, 58 Wis. 13, 16 A^. \V. Rep. 47. A policy contained a provision that if an injury should occur during the term covered by the policy, the insured slioukl forthwith give the company notice, suiting the nature ACCIDRNI IX^jURANCE, 9. 15 and extent of the injury. An injury oc- curred, but the policy-holder failed to give notice. The company pn^ceeded it ex- amine the proofs of the injury, and based a refusal to pay on other grounds, //t/i/, that this was a waiver of the conditit^n requiring notice, and if other necessary facts were proven the insured might recover, i/n- thank v. Travelers' Ins. Co., 4 Biss. {[/. S.) 357. A policy required immediate notice to be given to the company of an injury to the insured, and also contained this provision : " Provided, always, that no claim shall be made under thi> policy by the said insured in respect to any injury, unless the same shall be caused by some outward or visible means, of which proof satisfactory can be furnished." Ne/d: i. That a notice given six days after the alleged injury, which hap- pened in the city where the policy was is- sued, and where the company had a resident agent, was too lace, where no excuse was shown for the delay ; that the word " imme- diate " in such case is not to be literally construed, but the notice must be given within a reasonable time, according to the circumstances of the particular case. 2. That tliisdid not require the insured to furnish proofs of the character and extent of the injury before bringing suit. Railway Pass. A. Co, v. Burwell, 44 Ind. 460. A provision in a policy contained the condition that in case of fatal accident within the United Kingdom, notice must be given within seven days. The insured was drowned in Jersey, where it was impos- sible to give notice within that time. Held, that such notice was not a condition prece- dent to the right to recover, and that the accident happened within the United King- dom, and the insurers were liable. Stone- ham v. Ocean R.Sr' G.A.I. Co., 19 Q. B. D. 237- 9. Defences— Netflect of personal safety.— The general rule of law is that a party is not entitled to compensation for an injury of which his own negligence or want of due care has been the primary cause ; but the contract of insurance forms an exception to this rule, as has been repeatedly held in England and in the United States. Champ- lin V. Railway Pass. A. Co., 6 Lans. {N. Y.) 71. Where a policy of insurance against acci- dental injuries or death contains a condi- tion that the insured shall at all times "use due care and diligence for his personal safety and protection," and a plea to an action on It avers that he failed to do so, " but con- tributed directly and proximately to his own injury and death by getting off an engine in motion in the night-time, with his back in the direction in which said engine was going, which was an unsafe and dangerous way of aligliting from it," — held, that a rep- lication alleging "that said insured was a railroad switchman, was insured as such, and met the accident whi^ 1 caused his death while in the discharge of his customary duties as such switchman," was demurrable and insufficient, because, though the policy covered injuries resulting from the dangers incident to the service, it did not cover in- juries resulting from negligence or want of due care in the performance of customary duties. Standard Life &' A. Ins. Co. v. Jones, 94 Ala. 434, 10 So. Rep. 530.— Distin- guishing National Benefit A?soc. v. Jack- son, 114 111. 533. A railway-passenger policy provided that the insurers should not be liable for an in- jury which was the result of the negligence of the insured. In a suit to recover the amount of the policy the only proof offered was to the effect that the insured dii-d from falling from a car platform in the night- time, when the train was in full motion ; that he was either passing from one car to another, or was riding on the platform. Held, sufficient to show that the accident was the result of the negligence of the in- sured, and to justify the court in directinga verdict for the company. Sawtelle v. Rail- way Pass. A. Co., It, B latch/. (U.S.) 216. A policy contained the provision that there should be no recovery for an accident which was the result of the exposure to an obvious or unnecessary danger, and required the insured to use all due diligence for his personal safety and protection. It appeared that he was killed in the night-time while running along the track to get on a train, by being struck by a train moving in the opposite direction, on a parallel track. Held, there could be no recovery. Tuttle V. Travelers Ins. Co., 15 Am. &> Eng. R. Cas. 488, 134 Mass. 175. A policy contained the provision that the insured should use all due diligence for per- sonal protection. While crossing certain railroad tracks several persons from different directions called to him " to look out for the express," whereupon he hastily attempted ..JMMMM 16 ACCIDENT INSURANCE, lO. to cross to the platform, but was struck by the train and killed. Ihld, that the question of his negligence was for the jury. Dunciin\. Preferred Mut. Ac. A. of A'. V., 36 A'. V. S. A'. 928, 27 /. (5- .V. 145. '3 A'. 1'. Sit^p. 620. 10. Voluutary exposure.— (1) Ingt-n- eriil. — Where a policy provides that the company shall not be liable where the in- sured voluntarily exposes himself to un- necessary danger, and it appears that the insured was a railroad employe, and was in- jured in trying to get on a train moving at the rate of four or five miles an hour, it is a question for the jury to say whether such conduct was within the meaning of the con- dition in the policy. Co/ten v. Fidelity' &^ C. Co., 41 /•>•(/. Rep. 506. A passenger on a railroad train who goes upon the platform of the train while moving, because he is sick and overcome with heat, does not violate a provision in a policy, pro- viding that he "shall not voluntarily ex- pose himself to (jr unnecessarily incur danger." Marx v. Travelers' Ins. Co., 39 Fed. Rep. 321. Where a policy insures against accidents causing death while "travelling by public or private conveyances provided for the transportation of passengers," and the in- sured falls on a slippery sidewalk and is killed while attempting to walk a short distance, from a steamboat landing to a rail- road station, the right to recover is not affected by the fact that she might have pro- cured a hack to carry her, where it appears that she pursued the same course that the great majority of passengers did. A'orthrup V. Railway Pass. A. Co., 43 N. V. 516. — Following Theobald v. Railway Pass. A. Co., 26 Eng. L. & Eq. 432. In an action to recover on an accident policy which exempted the company from liability where the insured might meet his death " by voluntary exposure to unneces- sary danger," it was proper for the court to charge that in order to establish death by voluntary exposure to unnecessary danger the jury must find that the act of the in- sured in exposing himself was known, or ought to have been known to him , and it was proper to refuse to charge that the in- sured was bound to exercise more than or- dinary care, the insured only being bound to exercise the care that a prudent man would have exercised under the same cir- cumstances. Duiuan v. Preferred Mut. Ac. A. of N. v., 36 N. V. S. R. 928, 27 /. <5-» S. 145, 13 A". V. Supp. 620. A condition in a policy exempting the company from liability where the insured ex- poses himself "to obvious risks of injury," is violated where it appears that the insured was injured by a risk which was obvious to him, or would have been so if he had been paying reasonable attention to what he was doing. Cornish v. Accident Ins. Co., 23 Q, n. I). 453- (2) Illustrations. — A person insured against death or injury " by violent and accidental means, within the terms of the policy," jumped from a moving train of cars to effect an important business which required haste, and received certain internal injuries. Held, that the insurers were not liable. South- ward V. Railway Pass. A. Co. , 34 Conn. 574. A policy held by an engineer contained the provision that he " should not wilfully expose himself to unnecessary peril." While backing his train at a moderate rate of speed on a down grade, he slipped and fell in at- tempting to pass from the tender to the cars attached to apply the brakes. Held, that he did not violate the terms of the policy. Prorvidence L. Ins. &= I, Co. v. Mar- tin, 32 Md. 310. A person insured against accidents was crossing railroad tracks, and was warned while upon the tracks by persons on both sides of the track " to look out for the ex- press," whereupon, in his confusion, he ran toward the station platform, but was struck by the train and killed. Held, that it was a question for the jury to determine as to how far he was influenced by such warnings, and if they believed from the evidence that his conduct was such as a man of ordinary prudence would have done under like cir- cumstances, then they were bound to find that his act was not voluntary. Duncan v. Preferred Mut. Ac. A. of N. K, 36 N. V. S. R. 928, 27 /. (Sv 5. 145, 13 N. V. Supp. 620. A policy upon the life of W. provided that it should not " extend to or cover * * * suicide, sane or insane, * * * voluntary exposure to unnecessary danger," etc. It appeared that W., after crossing a railroad track in the village in which he lived, in the evening, met two men going toward the crossing, to whom he said : " Boys, look out for the engine;" and one of them replied: •'I'm not afraid; my life is insured." A train was at that time approaching. The ACCIDENT INSURANCE, 11-13. 17 men passed on over the track. W. turned and retraced his steps, and when within a few feet of the crossing stood still. The train was moving at about four miles an hour, the whistle blowing and bell ringing. When it was within about twenty-five feet of the crossing W. moved forward, and when upon the track "squatted down." He was struck by the engine and killed. The locality was lighted by an electric light. It did not appear that the men W. met were inebriated, or that there was any reason for him to incur danger on their behalf. Held, that the evidence disclosed that the danger was voluntarily and unnecessarily incurred, and that defendant was .... liable; also, that evidence given, negativing the idea of a motive on the part of W. to destroy his life, did not justify the submission of the case to the jury. Williams v. U. S. Mitt. Ace. Assoc., 133 N. v. 366, 31 N.E. Rep. 222, 45 N. Y. S. R. 238. 1 1. Violation of carrier's rules.— An accident policy held by a railroad employe contained the provision that the company should not be liable in case of death result- ing from a violation of the rules of the cor- poration. Held, in order to be a violation within the meaning of the policy, such rule must be in full force at the time of its vio- lation and must be known to the policy- holder. Marx V. Travelers' Ins. Co., 39 Fed. Rep. 321. A rule of a railroad comoany prohibiting persons from riding on the car platforms, but which is not at the time in force, and which is generally disregarded by both em- ployes and passengers, is not a rule of the company within the meaning of such a pro- vision in a policy. Marx v. Travelers' I Its. Co. 39 Fed. Rep. 321. If the policy contains an exception as to injuries resulting from a violation of the employer's rules, the insured being pre- sumed to have knowledge of them, it is not necessary for the defendant to prove his knowledge of them ; but evidence as to the rules is not admissible, unless the exception is especially pleaded. Standard Life (&>• A. Ins. Co. v. Jones, 94 Ala. 434, 10 So. Rep. 530- Proof that people were accustomed to cross the track at the point in question is admissible on the question whether de- ceased was killed while violating the rules of the company within the meaning of the policy. Duncan v. Pnfored Mid. Ac. A. of N. v., 36 N. V. S. R. 928, 27/. A- S. 14s, 13 A'^. Y. Supp. 620. Under the provisions of a policy insuring the holder against accidents while travelling on the conveyances of any common carrier, provided he complied with the rules and regulations of such carrier, and exercised due diligence for self-protection— //^/ C. 643. If there is an inconsistency between the terms of the application for the policy and the policy itself, excepting injuries resulting from intoxication, or received while under the influence of intoxicants, the policy must control ; but where the application uses he words, "any accidental injury which may happen to me while under the influence of intoxicating drinks, or in consequence of having been under their influence," and the policy excepts injuries " happening to the insured while intoxicated, or in consequence of having been under the influence of any intoxicating drink," there is no material difference between the two, and it is not necessary, in order to make out the defence, that the intoxication should have contrib- uted to the injury. Standard Life &■• A. Ins. Co. V. Jones, 94 Ala. 434, 10 So. Rep. 530. 13. Amount recoverable. — Plain- tilTs, a tramcar company, were insured by defendants against " claims for personal in- 18 ACCIDENT INSURANCE, 14.-ACCORI) AND SATISFACTION, 1-5. jury in respect of accidents ♦ ♦ ♦ to the amount of /250 in respect of any one acci- dent." A tramcar was overturned and many persons injured, tlie company being com- pelled to pay ^833 indemnity. Hild, that the word " accident " in tiie policy meant in- jury in respect of which a person claimed compensaiion from tiie plaintilTs, and that the liiiliility of the defeiidanis was consequently not limited to ^^250, but the plaintiffs were entitled to rec(jver the whole ^833 on the policy. South Staffordshire T. Co. v. Sick- ness (SrJ A. A. Assoc. [189 1 J, I (2- B. 402. 14. Kcfovcry over by insurer against railway company.— Where a railroad company lias negligently burned insured property, the insurance company cannot sue the railroad after paying tlie in- surance ; but the owner of the property may sue for the use and benefit of the insurance company. Holcombe v. Richmond 6r^ D. R. Co., 78 Ga. 776, 3 S. E. Rep. 755. ACCORD AND SATISFACTION. As regards public contracts, see Claims AGAINST United STArics, ©. 1. "Wliat amounts to.— If one having a cause of action, unliquidated in respect to amount, for a personal injury caused by the negligence of another, and, knowing all the facts, demands and receives from the wrong- doer a Slated sum of money on account of the injury, there being no express agree- ment that it shall be in satisfaction, either in whole or in part, of the cause of action, t!ie presumption is that it was intended by the parties as a full recompense for the in- i ; .-, and operates as an accord and satisfac- .. a, barring a subsequent action to recover ''piiagcs for the same injury. Hinkle v. .luapolis » Y. R. Co., L. R. 6 Ch. 527, 19 W. R. 729, 25 Z. r. N. S. 77. 7. Bet'uudiug amount received.— If, after the injury, the plaintiff receives money from the defendant, its return is not a condition picf^edent to a recovery, unless it be shown that it was paid under an agree- ment of settlement of the damages. Vait- train v. St. Louis, /. M. &^ S. R. Co., 8 Mo. App. 538. \Yhere accord and satisfaction are em- bodied in a written instrument which the plaintiff has signed with his mark, and he denies that he ever entered into such a con- tract, or that the same was read over to him, and claims that the amount paid him was not paid upon such contract, but upon his claim for wages, and that in signing he thought he was subscribing to an ordinary pay-roll only, it is not necessary for him to refund the amount received to entitle him to make the question of fraud in imposing upon him the written contract into which he did not enter in lieu of the actual con- tract under which the money was paid to him. Butler v. Richmond &* D. R. Co., 88 Ga. 594, 15 S. E. Rep. 668. ACCOUNTINO. Between land-grant railways and the gov- ernment, see Lanu-grant Railroads, 8. Bondholder, when entitled to, see Reorgani- zation, 8. By receivers, see Receivkrs, X. 1. Who may be oalled to account. — Persons appointed to receive and disburse subscriptions for the purpose of consolidat- ing and extending certain railroads may be required to account to the persons paying in the subscriptions for amounts so received, and the questions of the legality of their appointment, or whether they were origi- nally trustees, are immaterial. Gould v. Seney, 5 N. V. Supp. 928. An account will be ordered as of course where defendant admits he is an accounting party. But if the liability to account is de- nied (as here by former settlement) no order of reference or other issue can be had until the alleged bar is passed upon. Therefore, in an action on the bond of a railway treas- urer where the defendant's accounting char- acter is admitted in the answer, but a settle- ment with the company pleaded in bar of an account, the court did not err in submitting an issue to the jury in relation to the settle- 30 ACCOUNTING, a, 3.— ACCOUNTS, 1. ment, as a preliminary mailer. Atlantic, T. &> O. A'. Co. V. Morrison, 83 N. Car. 141. On the irial of such issue the proof was that defendant had turned i Abb. Pr. A'. S. 174. ^7 Bard. 398; affirmed in 3 Lans. 181. A railroad company having purchased a majority of the shares of stock m a canal company, elected for the latter a board of directors who were in the interest of the railroad company, and then, with the assent of said board, appropriated the entire canal and property of the canal company as a rail- road track, paying therefor a price or com- pensation which was agreed upon by the directors of the two companies, but which was far below the actual value of the prop- erly. Held, that, although the stockholders and creditors of the canal company could not, after the road had been completed, re- claim the property or enjoin its use, yet they were not concluded by such agreement, so far iis regarded the price of the property, but could, by action, compel the railroad company to account for its additional value, which was what the interest of the canal company was worth generally for any and all uses, and not for canal purposes merely, or for any particular use. Goodin v. Cin- cinnati &* IV. Canal Co., 18 0/iio St. 169. — Quoting Chapman v. Mad River & L. E. R. Co., 6 Ohio St. 120. Reviewing Hatch V. Cincinnati & I. R. Co., 18 Ohio St. 92. — Followed in Doud v. Mason City & Ft. D. R. Co., 36 Am. & Eng. R. Cas. 633, 76 Iowa 438, 41 N. W. 1. jp. 65. In a proceeding to compel a company to pay for land appropriated, the measure of damages is the value of the land at the time it is assessed in the proceeding. Goodin v. Cincinnati Sr' IV. Canal Co., 18 0/tio St. 169.— Reviewed in Railroad Co. i'. Perkin, 49 Ohio St. 326. JJ. Procedure—Proper charges.— Township aid bonds were delivered by a railroad company to one of its directors to pay for depot buildings which he had put up and agreed to convey, but did not do so. Held, on a bill for accounting, that he should be charged with the bonds. Michigan Air Line R. Co. v. Mellen, 5 Am. &^ £n(f. R- Cas. 245, 44 Mic/i. 221,6 N. IV. Rep. 845. ACCOUNTS. Of agents, jurisdiction of equity over, see Eijunv, 8. 1. In general.— Plaintiff sued to re- cover for services rendered the company by 12-4] ACCOUNTS, ii-4. ACKNOWLKIHIMK NT. 21 I to re- ipany by him as section foreman, and also to recover for board of laborers employed by the company. His claim was in the form of an account veri- fied by affidavit. Jle/i/, that the claim, being for items based on different transactions, was not an account within the meaning of Tex. Rev. St. art. 2266, and it was error to admit iti II evidence. Galveston, H. &* S. A. A'. Co. v. Sc/nuarts, 2 Tex. App. (Civ. Cas.) 664. 2. Accounts stated.— An account stnted cannot be based on an appraisal where it does not appear that both parties mutu- ally agreed on the appraisers, or recognized them as authorized to bind them by their action. C/ticago &^ C. S. R. Co. v. Peters, 45 Mich. 636, 8 N. IV. Rep. 584. A roadmaster of a railroad, in the line of his duty, audited accounts of an employe of the company, and reported it to the paymas- ter of the company, and certified therewith the balance that was due the employ6. Held, that this certificate, accepted by the employe, constituted an account stated between him and the company on which a suit could be maintained, without reference to the items making up the accounts. St. Louis, I. M. &■' S. R. Co. V. Camden Bank (Ark.), i S. W. Rep. 704. A railway company brought an action against A., formerly its agent, on an acount stated. A. filed an answer containing a general denial. On the trial the plaintiff read in evidence a letter of A. to the auditor of the company, dated February 12, 1874, proposing to pay every dollar of the defalca- tion of one B., to the amount of $7582.11, if he had time, and stating therein that his January report was short $5042.07, and that the balance of $2540.04 would have to be re- ported in his February account, and then pro- duced the auditor as a witness, who testi- fied the account sued on was furnished by him to A. on March 21, 1874; that A. went out of office on February, 14, 1874; that he met A. in regard to the account three or four times; that the account in- cluded the whole of February, 1874 ; that he saw the account in his posession, and that he made no objection to it ; that several other statements of account were sent A. before and after March 21, 1874 ; that they were not all liketheonesuedon ; that those after March 21 were different; that these statements were given A. as matters of in- formation. Held, that the stated account was not conclusively established by the tes- timony, and therefore it was not error for the district court to submit the question in the case to the jury. Kmnas Pac. R. Co. v. Anderson, 23 Kan. 44. 3. Iteopeiiiiig and restating ac- counts. — Although pariifs may have agreed upon a statement of account, tliey may, by mutual consent, waive this, and agree to a reopening and restatement of the account ; and if, after such statement, the creditor accepts the amount thus stated as full payment of the account, without exception or reservation, ihis will con- stitute a full settlement of his whole claim, although the amount received is less than the sum agreed on as his due at the first settlement. Horn v. St. Paul li rv, 7, When bars stockholder's right of action, see SlOCKIIOl.DKKS, 111, 6. ACTING SUPERINTENDENT. See Sll'IKlMKNDKNT, 8. ACTIONS. Against carriers of live stock, see Carriage ok LiVK SrocK, X. — carriers of passengers, see Carriage ok 1'assi:m;i ks, V'll. — elevated railways, see Ei.evatkd Railways, III, IV. Between buyer and seller of chattel, see Sai.ks, IV, — vendor and purchaser of land, sec Vendor AND Purchaser, IV. By and against corporations, see Corpora- TIO.SS, IV. — and against foreign corporations, see Foreign Corporations, II. — and against husband and wife, see Hus- iiAND AND Wife, III. — and against railway commissioners, see Railway Co.mmissioners, III, 8. — and against receivers, see Receivers, IX. — bailee against third person, see Bailment, 6. — personal representatives, see Executors AND Ad.ministrator>, 11-13. — stockholders against company or its offi- cers, see Stockholders, III, For breach of contract, see Contracts, IX. — breach of duty to build cattle-guards, see Cattle-guards, II. — causing death, see Death hy Wrongkul . Act. — causing fires, costs in, see Costs, 8. — damage caused by fire, see Fip.es, IV. — dividends, see Dividends, 11-14. — ejection of passenger, see Ejection ok Pas- sengers, III. — ejection of passengers, costs in, see Costs, 6. — failure to construct culverts, see Culverts, 5. — flooding lands, see Flooding Lands, II. — illegal removal of corpse, see Coroners, 2. — injuries caused by fellow-servants, see Felt low-servants, VII. — injuries caused by steam - railways in streets, see Streets and Highways, VI. ror injuries received at stations, see SiA' IIO.NS AND DKI'hTS. \'. injuries to children, sec Children, Injuries TO, V. — injuries to employes, see Employes, In JURIES ro, VI. — injuries to persons at crossings, see Cross- ings, Injukiks to Persons at, VII. — interference with easements, see Ease- ments, 14, in. — interference with or disturbance of fran- chises, sec Franchises, f>. — interference with or cbstrurtion of private ways, see Private Ways, 9-17. — killing or injuring animals, see Animals, In- juries TO. — loss of baggage, see Baggage, VIII. — loss or injury to goods carried, see Car- RiA(iEOK Merchandise, XII. — negligence, see Negligence, III. — negligent injuries caused by street rail- ways, see Street Railways, IX, 2. — overcharges, costs in, sec Costs, lO. — personal injuries, costs in, see Costs, 1 1. — refusal to transfer stock, see Siock, V, 7. — specific performance, see Specikic Per- formance, II. — taxes, see Taxation, VIII, 3. — unlawful discharge of superintendent, see Superintendent, 7. — unlawful taxation, see Taxation, X. — wrongful interference with property under color of eminent domain, sec Eminent Domain, XIV. On certificates of indebtedr. ess, see Certifi- cates OF Indebtedness, H. — construction contracts, see Construction OF Railways, II, 6, — coupons, see Coupons, II. — covenants, see Covenants, II. — debentures, see Debentures, 13-15. — fire policies, see Fire Insurance, III. — jtldgments, sec Judgment, VI. — negotiable paper, see Bills and Notes, III. To enforce claims of creditors, see Creditor's Bill. — enforce penalties, see Penalties, II. — enforce subscriptions to stock, see Sub- scriptions TO Stock, III. — foreclose deeds of trust, see Deeds of Trust, 14-20. — foreclose laborers' lien, see Liens, III, 5. — foreclose mechanics' lien, see Liens, II, 6. — foreclose mortgages, see Mortgages, VI. — quiet title, see Cloud on Title. — recover charges, see Charges, VIII, 4, 5- — recover penalties for importing laborers, see Contract Labor Law, 2. — recover wages, see Employes, 12-19. ACTIONS, I, 2. 28 What may be compromiMd, see Comi'komisk, 6. — survive after death of party, sec AnATK- MENT, 14, tS. See also Assault ; Assumpsit; Attachment; Ejectment; Equity; Forcibi.k Entry and Detainer; Injunction; Libel; Malicious I'KosECUTioN ; Replevin ; Trover. 1. When ail action will lie.— The right to bring an action based upon a wrong or negligence depends upon the law of the slate where the injury is inflicted, Ilnnna v. Grand Trunk R. Co., 41 ///. App, 116. The fact that a state is the sole proprietor of a corporation does not prevent it from being sued.* Hutc/iinsonv. Western Ort A. R. Co., 6 Heisk. ( Tenn!) 634, 12 Am. Ry. Rep. 16. One corporation cannot maintain an ac- tion against another for refusing to per- form a duly or to render a service unless it affirmatively appears that the duty or ser- vice exists by force of a statute or contract, or a usage having the force of law. Dela- ware, L. &^ IV. R. Co. v. Centra/ S. V. &" T. Co.. 37 Am. (S^• En^'^. R. Cas. 607, 45 A^. 7. Eg. 50, 17 A//. Rep, 146; affirmed., 46 A^. J. Eg, 280.— Reviewing Atchison. T. & S. F. R. Co, V. Denver & N. O. R. Co., iioU. S. 667. A railroad company is not liable for negli- gently running over and mutilating a dead body, but it may be liable for damages to apparel in which the body was shrouded. Griffith v. Charlotte, C, &* A. R. Co., 23 S. C. 25, 55 Am. Rep. i. It is no ground for damages against a com- pany that a drayman was discharged by his employer because an agent of the company informed the employer that the drayman would not be allowed to violate proper regu- lations of the company. Donoranv. Texas &> P. R. Co,, 29 Am. &> Eng. R. Cas. 320, 64 Tex. 519. A woman cannot recover damages for a fright received in seeing a horse running away, which came toward her but did not come in physical contact witli her, nor cause her to come in physical contact with any other object. Lehman v. Brooklyn City R. Co., 14 A'. Y. S. R. 575, 47 Hun 355.t 8 & 9 Vict. c. 20 takes away the common- law right of action for an interference with a road underthe powers of a railway company, with a private right of way, except when * Sovereignty cannot be sued, see note, 16 Am. & Eng. R. Cas. 309. j Fright as a basis for an action for damages, see note, 14 L. R. A. 666. special damage has been sustained, ll^ut- kins V. Great Northern R. Co., 16 Q, B. 961, 20/.. 7. Q.B.3 O. R. Co., 5 W. Va. 10. A company using the cars of another com- pany for hire can maintain an action on the case for an injury to such cars. Montgomery • Proper form of action against carriers, see note, II A . & Eng. R. Cas. ioi. Form of action where passenger is injured, see notes, 16 Am. & Eng. R. Gas. 309, 11 /() III. 43. An action to recover dainaj^'cs ff the value of adjacent property, occasioned by the location and use of rail- way tracks in a public street, is not an action of trespass qu. cl.fr., but, at the common law, would have been an action on the case. Jfffersonvillf. M. 6'-^/. A'. Co. v, liih-rli, 13 Jiiis/t (A>.) 667, 17 Am. Ry. Rip. 111. Case and not trespass is the proper rem- edy for an injury to land caused by the ne>{lect of a corporation to remove stones .thrown upon it in the course of construct- ing a railroad. Satin v. I'ennont C. R. Co., 25 r/. 363. :{. Wlio may Hiie.— (1) /« .(,v//(V-rt/.— The true owner of personal property may enforce his right to it, as against the con- signor or consignee or carrier, or other bailor or bailee, whenever he sees lit to do so, before its delivery to the bailee, as di- rected by the bailor. U^flls v. American Exp. Co., 6 Am. &* Eng. R. Cas. 298, 55 ll^is. 23, II N. IV. Rep. 537, 12 N. W. Rep. 441, 42 Am. Rep. 695. A master whose servant is injured by the negligence of a railway company whose train comes into collision with the train of another company, in which the servant was riding, may maintain an action for such in- juries. Berringer v. Great Eastern R. Co., L. R. 4 C. P. Div. 163, 48 L. J. C. P. Div. 400, 27 W. R.6&1. An action to recover assets of a railroad company claimed to have been fraudulently disposed of or converted to the use of direc- tors or trustees of the company, should be in the name of the corporation. A/kn v. New Jersey S. R. Co., 49 Hmo. Pr. {N. V) 14. Where the articles and by-laws of a rail- road company do not recognize any such officer as a general solicitor or attorney, such person has no authority to institute and carry on suits without the sanction or permission of the board of directors. Z>« Moines &- M. R. Co. v. Chicago &- N W R.Co.. 2 McCrary {I/. S.) 531, 7 Fc^i. Rep. 748. A widow cannot maintain an action, be- fore her interest in her dcccMseii liii>l)and's r<';iity has been set apart, to compel a rail- way company to purchiise lior allf^jed dower interest in a right of way granted by him. /'/////<• V. liurlinjiton H^ M. R. Co., 49 /oiaa, 134. (2) Injuries to lanit. — A subsequent pur- chaser of lands cannot maintain an action for damages against a railroad company for injuries resulting for surveying trial lines over the land for the location of its road. Galveston, II. &* S. A. R. Co. v. I'/eiiffer, 1 1 .////. (^ Eng. R. Cau 373, 56 Te.v. 66. The owner of land adjoining a railroad who sold the same, reserving no rent and no rent having been assigned to him, and who afterwards receives l)ack a deed for the same, cannot recover damages from injury done to the property when the title was outstanding, even though while out of ownership he was permitted by the owner to collect the rents for his own use. Tliomp- son v. Pennsylvania R. Co. 51 N, J.L.\2, 15 Atl. Rep. 833. (Jl) Injuries to personal properly — A per- son in possession of goods belonging to another may maintain an action against a railroad company for negligently injuring them. Moran v. Portland Steam Packet Co., 35 ^fe. 55- Either the owner or the consignee of goods shipped by rail may maintain an action against the company for damage or loss. Western &^ A. R. R. Co. v. Kelly, 1 Head {Tenn.), 158, Where a family picture kept as an heir- loom is loaned by the real owner tempo- rarily to his sister, and is injured while being carried on the railroad, the right of action for the injury is in the owner, and not in the one to whom it is loaned. Lock- hart V. IVestern &^ A. R. Co., 73 Ga. 472, 54 Am. Rep. 883. Where a horse is injured by a street-car company while in the possession of an auc- tioneer for sale, who has the privilege of using it until sold, but who was under no liability to the owner for an injury to the same, the auctioneer cannot maintain an action against the street-car company for the injury. Claridge v. South Stajford- shire T. Co. [1892]. i Q. B. 422. Plaintiflf shipped goods from Canada to England "to be delivered to order or his assigns, he or they paying the freight." The shipper indorsed the bills of lading to various purchasers who paid drafts on them ACTIONS. 4 «. af) (or till! piicf; ili<; noixls li,i\ mjj Ijclmi daiii- aj{i*(l in transit, tliey made claim u|«)ii ♦''« sliippcr for tlie amonnt thereof. Held, that the shipper had such an interest as would enable liim to recover against the carriers for the dama)j;e. Ilatcly v, Mirchants De- s/)titi/i Co., 2 Oiil. 385. 4. l>ciiiiiiMl lM>l'or<> siiil.— Where it is claimed that a railroad coini)any does not furnish a certain town with necessary rail- road facilities, it is not necessary to make a demand on the company before instituting suit to compel the company to furnish such facilities. Northern Pac. A*. Co. v. Territory ex nl., 29 .,•/;//. &* A//*,'. A'. Cas. 82, 3 Was/i. Ty. 303, 13 /'ru-. Kip. 604. 5. NotliHi but'orc! Hult.— The New Hampshire statute of 1847, requiring notice before suit, applies to all railroads, and is not restricted to public corporations. I.atn- phier v. IVorces/ir 6^- A'. A'. Co. 33 N. II. 495. A provision in a private railway act that no action shall be commenced against any person for any act done in pursuance of the statute unless twenty days' previous notice in writing shall have been given, apph'es to the company for whose benefit the act was passed, as well as to a single individual. lioyds. London &* C. R. Co., 6 D. P. C. 721, 4 li/njf. N. C. 669, 6 Sco/t, 461. Where a company, by its act, is entitled to notice before any action can be brought against it for any thing done or omitted in pursuance of its act, and an action is com- menced against it for money received to the plaintiff's use, a plea that no notice of action was given, without alleging that the money was received in pursuance of its act, is bad. Gar/on v. Great Western A\ Co., El., Bl. &* El. 837, 5 Jur. N. S. 1244, 28 L. j. Q. li. 321. An action against a railway company for liquidated damages incurred by obstructing a canal is an action for something done under the company's act, providing that no action shall be brought for anything done or omitted to be done in pursuance thereof without twenty days' notice, and the limita- tion clause applies. Kennet <&» A. Canal Navigation v. Great Western R. Co., 7 Q. li. 824, 4 Railw. Cas. 90, 9 Jur, 788, 14 L. J. Q. n. 325. A provision in a railway company's act, that no action shall be brought for anything done in pursuance thereof unless notice in writing is given, does not apply to an action for overcharges. Carton v. Great Western A". Co., 1:1., HI. i^ i.l. 837, 5 Jur, N. S. 1344, 28/.. 7. Q. //. 321. Under its special act the defendant com- pany was entitled to notice of an action to recover excessive charges for the carriage of goods. A'ent v. Great Western R, Co,, 3 C. /y. 714., 16 L. 7. C. P. 72. A notice of action for extortion in carry- ing goods need not contain a demand of interest in order that the arbitrator to whom the matter is submitted may award interest. Edwards v. Great Western R, Co., 11 C, li. 588. 21 L, J. C. P. 72. Where a company is sued as a carrier no notice of action is necessary, although the act incorporating the company provides that no action should be brought for " any- thing done or omitted to be done," in pur- suance of the act, unless fourteen days' previous notice was given. Palmer v. Grand Junction R. Co., 4 M. N. R. C. V. Saucier, (Miss.) i So. Rep. 511. An action may be brought against a rail- road curporatio J for services rendered it in any county where it has an olFice for the transaction of business, or any person re- sides upon whom process may be seived. Section 796 of the Indiana Code of 1852 is still in force. Evansville &* I. R. Co. v. Spcllbring, \ Ind. App. 167, 27 A'. E. Rep. 239- (2) Actions for personal injuries. — By the common law, actions ex delicto for injuries to personal property, or to the person, are transitory, and suit may be brought wherever plaintifT or defendant resides when suit is instituted. Hanna v. Grand Trunk R. Co., 41 ///. App. 116. Actions for personal injuries are transitory in their character, and, notwithstanding the death of the person injured, may be brought in a stale other than that in which the acci- dent occurred, provided the right accrued in the latter state under a statute similar in im- port and character to the one in force in the jurisdiction in which the suit is brought. Cincinnati, H. &' D. R. Co. v. McMullen, 38 Atn. Gf Eng. R. Cas. 165, 117 Ind. 439, 20 A^. E. Rep. 287. — Following Burns V. Grand Rapids & I. R. Co., 113 Ind. 169. A passenger being injured by the negli- gence of a railroad company in another state may maintain an action for such injury in New Jersey. Such action is transitory, and the venue may be laid in the county in which the defendants were served with process. Ackerson v. Erie R. Co. Zi N.J. L. 309. A tort to the person, although alleged in the formal and technical language of plead- ing as contra pacem, is only a civil injury in contemplation of law ; and the right of re- dress, like any other personal right, accom- panies the party injured wherever he may go and have an opportunity to enforce his remedy. Nonce v. Richmond &■' D. R. Co., 33 Fed. Rep. 429. Actions, whether allowed by statute or common law, brought to recover for per- sonal injuries, are transitory ; thus, on de- murrer, it appeared that the defendant com- pany existed under the laws of this state, and was operating a certain railroad in the province of Quebec, and it was held that the plaintiff could sustain an action against the defendant for personal injuries alleged to have been sustained by him in said prov- ince through the neglect of the defendant to comply with the statute law of that province. McLeod v. Connecticut &* P, ACTIONS. «, O. a: A'. Co., 28 Am. iL~ Eii^. A. Cus. 644, 5S / V. 727, 6 .///. A'ty>. 648.— Quoting Denmck V. Central R. Co. of N. J., 103 U. b. II. Actions for injuries to the person caused by a railroad company are transitory in their nature, and may be brouglit in any county throughout which such road runs. Soit//i Florida A. Co. v. H'ecsc, 32 J- la. 212, 13 So. Alp. 436. Where a railroad is chartered both in Tennessee and Mississippi, and has but one set of officers, and a passenger is injured in Mississippi while travelling on a single ticket, and sues for damages in Tennessee, it is immaterial whether the corporation be sued as a Tennessee or a Mississippi cor- poration. Missi.'isippi &^ T. A. Co. v. Ayres, 16 Lea (7'f/in.). 725. 8. Wliut actions arc foiiiidcd 011 contract.— An action against a carrier for a breach of contract of transponation is one arising on the implied contract, and is not an action i:v delicto. Evansville &• A. A. Co. V. Kyte, 6 hid. App. 52, 32 A'. E. Acp. 1134- An action for failure to safely carry goods is one growing out of contract, and is there- fore not included in L. Code, art. 165, mak- ing an exception as to trespass, etc., to the rule requiring actions to be brought at the place of domicile. Gossin v. Williams A^ M. L. &- T. A. . Whal aition^i sound in tort.' — All action to recover lor injuries' to a pas- senger caused by the upsetting of a coach is an action for tort, though it involves the violation of a contract between the carrier and the passenger to safely carry ; yet the plaintiff may waive the tort and sue in as- sumpsit. Salto/i stall V. Stockton, i Taney ((/. S.) II. An action by a passenger to recover both actual and exemplary damages for being carried beyond his station is an action of tort, though the complaint alleges the pur- chase of a ticket which would raise the ob- ligation of the railroad company to safely carry. Galveston, H. '. n. 23, 47 /.. /. Q. B. 28, 26 \V. R. 209.— Distinguished IN Fleming V. Manchester, S. .t L. R. Co., L. R. 4 Q- B- D. 81, 39 L. T. 555. 27 W. R. 481. An action to recover damages for illegally obstructing a navigable river. Doughty v. Atlantic <> N. C. R. Co. 78 N. C. 22. Mchr- hof Bros. Brick Mfg. Co. v. Delaware, L. & IV. R. Co. (A'./.), 16 Atl. Rep. 12. An action against a carrier for a failure to stop at a particular place and take on board the plaintiff as a passenger, according to previous notice advertised to the public. //<■/;•« v. M'Caughan, 32 Miss. 17. — DlS- TiNGUisHEi) IN Thompson v. New Orleans, J. &G. N. R. Co., 50 Miss. 315. An action to recover the penalty of $10, provided by Mass. St. of 1854, ch. 23, grow- ing out of the refusal to check a passenger's baggage. Comnionivealth v. Connecticut River K. Co., 15 Gray (Mass.) 447. An action for an assault by a conductor upon a passenger. Feeney v. Brooklyn City R. Co., 36 Hun. (A'. I^.) 197. 10. Election between forms of action. — Where the law imposes a duty and the party enters into a contract for the performance of it, suit may be brought either for the non-performance of the legal duty or upon the contract ; but if the law imposes no duty, or if the party is relieved from performance of it, but contracts to do what he is not required under the law to do, then the only remedy is a suit upon the con- tract. Illinois C. R. Co. v. Phelps, 4 ///. App. 238. Where a railroad company agrees, for a consideration, to carry a passenger over its road, and by its negligence an injury results to the passenger, he may, at his election, sue upon the contract or in tort. Pennsyl- vania R. Co. V. People, 31 Ohio St, 537. McMurty v. Kentucky C. R. Co., 84 Ky. 462, I S. IV. Rep. 815. Baltimore City Pass. R. Co. V. A'eoip, 18 Am. &^ Eng. R. Cas. 220, 61 M(f. 74. Baltimore City Pass. R. Co. V. Rewp, 61 Md. 619, 48 Am. Rep. 134. — puOTiNd Maishail ?'. York, N. & 13. K. Co" II C. B. 655. A passenger may declare for a breach of contract where there is one; but it is at his election to proceed as for a tort where there has been personal injury suffered by the negligence or wrongful act of the carrier or the agents of the company, and in such action the plaintiff is entitled to recover, according to the principles pertaining to that class of actions as distinguished from actions on contract. Baltimore City Pass. R. Co. v. R'e/np, 61 Md. 619, 48 Aw. Rep. 134. A person who has sustained injuries by reason of the failure of a railroad company to provide proper means of transportation or operate its trains as required by the statute (the Code. § 1963) may bringan action on con- tract, or in tort, independent of the statute. Pttrcell V. Richmond Sir* D. R. Co. 47 Am. &* Eng. R. Cas. 457, 108 N. C. 414. 12 S. E. Rep. 954, 956.— Quoting Heirn v. M'Caughan, 32 Miss, i; Bowers v. Rich- mond & D. R. Co, 107 N. C. 721. Recon- ciling Hannah v. Richmond & D. R. Co., 87 N. C. 351. Under the Tennessee Code abolishing the distinction between actions in tort and on contract, the plaintiff may recover whatever damages he is entitled to, whether hrs action sounds in tort or on contract. Hall V. Memphis 6- C. R. Co., 9 Am. &• Eng. R. Cas. 348, 15 Fed. Rep. 57. An action against a common carrier for failure to carry safely goods delivered to it is an action of tort ; but an action may also be maintained in respect of the contract entered into between the parties. Tattan V. Great Western R. Co., 2 El. One having a right of action for negli gence in failing to safely carry, may sue either in tort or on contract, and in detei- mining the form of action the nature of the teniedy will be determined both by the form of the pleading and the circumstances of the case ; but as tort is the natural foundation of tne action a declaration will be construed to be in tort unless it clearly appears that the suit is on contract. Whit- tenton Mfg. Co. v. Memphis Sf O. R. P. Co., 21 Fed. Rep. 896. 11. Joinder of onuses of notion.— (i) What may de joined. — Under the Indiana Code abolishing the distinction between ac- 'i ACTIONS, 11. 29 tions growing out of contract and actions in tort, causes of action growing out of the two may be united in the same action. Cincinnati, W. &* M. R. Co. v. Harris, 6i Ind. 290. Under the Mo. Practice act, art. 6, § 2, several causes of action founded on injuries, with or without force to person or property, may be joined in the same petition ; and this would seem to include all injuries whatever to person or property, whether real or personal, direct or consequential, and whether the damages are given by common law or by statute, single or double, and does include all actions of trespass or case. Clark v. Hannibal iS- St. J. R. Co., 36 Mo. 202. Under the New York practice a cause of action growing out of a failure of a railroad company to purchase another road at a foreclosure sale and to reorganize it, and a cause of action for damages for breach of the contract, may be united in a bill filed seeking a specific performance of the con- tract. Stanton v. Missouri Pac. R. Co., 15 Civ. Pro. Rep. (N V.) 296, 2 N .V. Stipp. 298. In Ohio, several causes of action for penalties, under 71 Ohio Laws, 146, against railroads demanding excessive fares may be united in the same petition, and where such action stands for judgment on the petition, it is not error to refuse to empanel a jury to assess damages. Cincinnati, S. &• C. R. Co. V. Cook, 6 Am. &* Eng. R. Cas. 317, 37 Ohio St. 265. In Pennsylvania, a cause of action for causing the death of plaintiff's child may be joined with one for killing plaintiff's horse, the latter being part of the same transac- tion. Pennsylvania R. Co. v. Bock, 6 Am. &* Etig. R. Cas. 20, 93 Pa. St. 427. In Texas, a suit against a railroad com- pany to recover for various items for over- charge of freights, excess of freight charges, loss and damage to goods, though growing out of different shipments, is an action upon an account, and all the items may be joined in a single suit. International &* G. N. R. Co. V. Donalson, 2 Tex. App. {Civ. Cas.) 183. (2) What may not be joined.— Vfhtrt a railroad company and its employee are both injured by the same negligence of another railroad company, the first company has no right, in an action for its own damages against the second, to sue also for the use of its employee to recover the damages sus- tained by him in excess of those already paid to him by the plaintiff in the action. Central R. &> B. Co. v. Brunswick Sf IV. R. Co., 87 Ga. 386, 13 S. E. Rep. 520. Where a member of a partnership is in- jured personally and the firm property is also injured by a railroad, both claims can- not be united in the same aplion. Taylor v. Manhattan R Co., 25 N. V. S. R. 226, 53 Hun, 305, 6 N. V. Supp. 488. A complaint was in three counts, the first for killing cattle, the second for killing swine, and the third set up an agreement to carry cattle, and damages for a breach of such contract, being an injury to the cattle by reason of weak and insufficient cars. Held, that there was a misjoinder of causes of action, the first two counts being in tort, and the third on contract. Colwell v. New York&^ E. R. Co. q How. Pr. (N. V.) 311. Plaintiff's complaint contained two causes of action, one to recover damages alleged to have been caused by the roadbed erected by defendant ponding water back on plain- tiff's land ; the other to recover damages for an alleged breach of duty on the part of defendant in rr^t putting up sufficient cattle- guards, as required by the Code, § 1975, whereby cattle trespassed upon plaintiff's enclosed lands and crops. On demurrer /leldan improper joinder of causes of action, the first being for injury to property, a tort, while the second arose " upon contract," for the breach of an implied contract to perform a statutory duty, and the action should be divided. Hodges v. Wilmington &> IV. R. Co., 105 N. Car. 170, 10 S. E. Rep. 917.— Approving Thomas v. Utica & B. R. R. Co. 20 Am. & Eng. R. Cas. 93. 97 N. Y. 245. Quoting New York & N. H. R. Co. V. Schuyler, 34 N. Y. 30. The follo^ving causes of action cannot be ioined: A common law action for negligence and one for statutory negligence. Ken- drick V. Chicago (&>• A. R. CV.,81 Mo, 521. A cause of action for a personal injury and a separate cause of action for a subse- quent injury to property. Thclin v. Ste^vart, 100 Cal. 372. A claim by a father against a railroad company for a personal injury to himself and an item for killing his minor child at the same time. Cincinnati, H. &• D. R. Co. V. Chester, 57 Ind. 297. A claim for equitable relief against a rail- 30 ACTIONS, 12, 13. road company, and a claim for damages against individual defendants. Stan/on v. Missouri l\ic. R. Co., 15 Civ. Pro. Rep. (iV. K) 296, 2 .\. Y. Supp. 298. A cause of aciiun due plaintiff in his indi- vidual rigiil on contract with a railroad company, and a cause of action due him as a stockholder of another railroad company, where the two causes of action did not arise out of the same transaction, or transactions connected with the same subject-matter. Stanton v. Missouri Pac. R. Co., 15 Civ. Pro. Rep. {N. Y.) 296, 2 A', y. Siifip. 298. A claim for damages for ;:harging a pas- senger an excessive fare, and another for being unlawfully ejected from the train at another time ; but where it appears that the demand for one of the claims is illy pleaded the court should strike it out and overrule a demurrer for a misjoinder of the two causes of action. Sullivan v. AVti' York, IV. H. &• H. R. Co., 61 How. Pr. (A'. 1'.) 490, I Civ. Pro. Rep. 2S5. An action for assault committed in put- ting a passenger off a train and an action ex contractu for breach of the contract to carry the passenger. Such misjoinder of actions is demurrable, although the defect may be cured by trial and verdict where no demurrer has been filed. Norfolk &> W. R. Co. V. Wysor, 26 Am. &* Eng. R. Cas. 234, 82 Va. 250. A cause of action against a railroad com- pany for raising an embankment so as to flood lands, and a cause of action growing out of a breach of a contract to niaintain a farm crossing. Thomas v. Ulica 6^ /?. A'. A". Co., 20 Am. &> Eni^. R. Cas. 93, 97 A'. )'. 245; reversintf 24 //«;/, 488.* — Foi.i.owiNd New York &N. H. R. Co. v. Schuyler. 34 N. Y. 30.— Ai'PROVKn IN Hodges v. Wilmington & W. R. Co.. 105 N. Car. 170, 10 S. E. Rep. 917. Reviewed in Leggett 7/. Rome, W. & O. R. Co.. 41 Hun (N. Y.) 80, 2 N. Y. S. R. 3«2. 12. Statutory and ooiiiiiiun law ac- tions*. — Where the remedy is a statutory one. and a new right is given and specific relief prescribed, tiie remedy is confined to that which the statute gives ;*but this rule does not ai)ply where no new remedy is given by the statute which, whileenjoining a new duty upon the company, leaves the right, * Cause of action for failure to erect cattle- ((uards cannot be joiiieii with cause of action for rtooding lanils, see 44 Am. & E.vc. R. Cas. 494, .iti-itr. which corresponds with that duty, to be en- forced by old remedies. Graham v. Dela- uhire &• H. C. Co., 46 Hun (A'. 1'.), 386. 12 A', Y. S. R. 390.— Distinguishing Cran- dall 7'. Eldridge, 46 Hun, 411. The extraordinary remedy provided by Wagn. Mo. Stat. 310, 31 1. ^ 43, for a failure of a railroad comjjany to fence is only cumu- lative, and does not prevent an action to enlf)rce a common-law remedy for such failure, /da v.Haniii/ial &^ St. J. R. Co., 45 Mo. 469.— Rkvikwing Riddle v. Proprie- tors, etc., 7 Mass. 186; Morr's z/. Andro- scoggin R. Co., 39 Me. 273; Calvert v. Hannibal & St. J. R. Co., 34 Mo. 242. — Fi)Li-<)WEn IN Creason ?'. Wabash, St. L. & !'. R. Co., 17 Mo. App. III. Quoted in Hill 7>. Missouri Pac. R. Co., 49 Mo. App. 520. Where plaintiff sues f ir negligence as at common law, he cannot .d)andon the cause of action as thus stated in his complaint, and recover under the statute. Davis v. Utah Southern R. Co., 3 Utah, 218, 2 Pac. Rep. 521.— DiSTiNGUi.sHiNG Anderson v. Wasatch & J. V. R. Co., 2 Utah. 518. Re- viewing Siou.x City & P. R. Co. v. Stout. 17 Wall. (U. S.)657. A provision in a railway act, that any penalty imposed thereby, the recovery of which is not otherwise provided for, may be recovered by summary proceedings upon complaint before two or more justices, does not bar the party entitled to his remedy by action. Collinson v. A'ewcastle &^ D. R. Co., I C. 6- A'. 546. The C. V. Railroad had. in the process of its construction, the legal right to pass over and destroy a portion of a certain higlnvav in the town of E^., and a general statute of the state provided a specific remedy for the injury so done. Held, that to recover f \V. R, Co. v, Beebe, 39 Kan. 465, iS />,u\ Rep. 502. ACTIONS, 14. 81 A claim lot damage for killing several cattle at the same time constitutes but one cause of action, but if they are killed at dif- ferent times each killing constitutes a sepa- rate cause of action, and may be sued on separately. Pttcket v. St. Louis, I. M. » R. R. R. Co. v. Ha/t, 64 Tex. 615. 14. Coiiiiolidatioii.— A c(jnipany can- not complain of the consolidation of three actions against it for injuries to as many members of the same faniil\ at the same time, where it has theretofore moved for such consolidation, although the court at the time overruled the motion and held that there should be a separate verdict in each action. Union Pac. R. Co. v. Junes, 49 Fed. Rep. 343, 4 U. S. App. 1 1 5, i C. C. A. 282. Under the New York statute a right of action for an injury to property, and one for an injury to the person, each being simul- taneous, may be consolidated. Rosenberg v. Staten Island R. Co., 38 A^. Y. S. R. 106, 14 A'. Y. Supp. 476. Where two actions are brought against a company, both based on negligence and growing out of the same accident, one for injuries to personal property and the other for injuries to the person, the company may set up in each action the pendency of the other, or may have a consolidation of the two actions ; but if it fails to do so after a recovery in one action, it is not entitled, under the N. Y. Code of Civ. Proc. § 544, to an order permitting it to serve a supple- mental answer in the untried action setting up such recovery as a bar. Mc Andrew v. Lake Shore &^M. S. R. Co., 70 Hun {N. Y.) 46. A motion to consolidate three pending suits for foreclosures of different mortgages given by a railroad company will not be granted when the whole of the suits are not ripe for decree and nothing can be gained fur the purpose of a hearing. Mercantile Trust Co. V. Missouri. K. dr' T. R. Co. , 43 .Int. 6- Eng. R. Cas. 469, 41 Fed. Rep. 8. A proceeding by a company to condemn land, and a proceeding against the company for taking the land without condemnation, cann(jt be consolidated under Wis. Rev. Stat. 1858, ch. 125, § 42, providing for the consolidation of actions which might have been joined. Blescli \. CIticago S. {N. V.) 229. See 97 A^. y. 652, Mem. When a cause of action exists against two companies for an act or omission for which they are severally liable, and suit is brought against both, the plaintiff may at his option dismiss as to either, and prosecute his suit against one of them alone. Central &^ M. R. Co. v. Morris, 28 Am. &* Eng. R, Cas. 50, 68 Tex. 49, 3 S. W. Rep. 457. ACTS OF BANKRUFTGT. See Bankruptcy, 4. ADMINISTRATION. In general, see Executors and Adminis- trators. Of assets in equity, see Equity, 9> ADMIRALTT. Jurisdiction of courts of, generally, see Juris- diction, 11. 1. Jurisdiction over ferry-boats.— Under U. S. Rev. St. § 5258, authorizing railroad companies to carry over their " roads, boats, bridges and ferries " passen- gers and freight " on their way from any state to another state and to connect with roads of other states, so as to have continu- ous lines of the same to the place of destina- tion," a steam ferry-boat, owned by an inter- state railway company and used exclusively in crossing a river which is the boundary between two states, is not part of a railway so as to exclude admiralty jurisdiction over it. The same may be liable for wages, as provided by statute. The St. Louis, 48 Fed. Rep. 312. ^J i ■I ADMIRALTY, 2-4.-ADVERSE POSSESSION, 1, 2. 33 il. Who are " seamen."— Under U. S. Rev. St. § 4612, providing tliat tlie word "ship" shall be taiten to comprehend "every description of vessel navigating on any sea or channel, lake or river, to whicii the provisions of this title are applicable," and that all persons engaged in navigating tiic same should be deemed "seamen," a person serving on board a railway ferry-boat, crossingtheVViIlametteriver,Oregon,in tide- water, is a seaman, and may claim the benefit of J! 4536, providing that the -vages due any seaman or apprentice " shall not be subject to attachment orarrestment." T//f St. Louis, 48 Fed. Rep. 312. JJ. Libel for death of passenger. — A passenger was drowned from a railway ferry-boat crossing a river in tide-water. It was shown that the drowning was due to the negligence of the company. Held, that this was a maritime tort for which the ad- ministrator of the deceased might maintain a libel in admiralty under the Oreg. Civ. Code, § 367, giving the personal representa- tive the right to institute such suits. Holmes V. Oregon &' C. R. Co., 6 Sawy. {U. S.) 262. 4. Salvage service. — A company start- ing its trains from the New Jersey shore, opposite New York city, received freights in the city and contracted with a person to carry them across East river to its trains, who was to assume the risks of transporta- tion. While certain barges belonging to the company loaded with freights were being towed across they got caught in the ice and became helpless, and were drifting with the ice, being in imminent danger of being crushed against a pier. Upon those aboard calling for help, a steam-tug rescued them and got them safely into a slip. The value of the tug was about $ro,ooo and the barges and cargo from $30,000 to $45,000. The services in rescuing occupied about half an hour. Held, that the service was a salvage service for which the railroad company was liable, and that $500. was a reasonable allowance therefor, with an addi- tional $50 for an injury to a hawser. Sea- man V. Erie R. Co., 2 Ben. {U. S.) 128. ADMISSIONS. As evidence, see Evidence, VIII, i. In actions for injury to animals, see Animals, V. 7 ( A. R. Co., 67 Ga. 761.— Fol- lowed IN Kirschner v. Western & A. R. Co., 67 Ga. 760. 2. What possession is adverse, generally.— A party may obtain title by * Acquiring an easement by prescription, see nc'c, 35 Am. & Eng. R. Cas. 320. Acquisition of right to flood lands by pre- scription, see note, 48 Am. & Eng. R. Cas. 80. Right of way by prescription over land ac- quired by a railroad company from a state, see 46 Am. & Eng. R. Cas. 542, abstr. When a homestead claim may be held ad- versely to a claim undrr a railroad land grant, see 34 Am. & Eng. R. Cas. no, abstr. 84 AUVERSli I CSSESSION, 3. adverse possession to lands as againsi an individual, though he holds it in subordina- tion to the title (j( ihc general government. J'tancoiurv. Aiw/iouse, i^Snuy. (U.S.) boo. Possession of a company and its succes- sors, under a grant of the right of way. for construction and operation, dates from the commencement of construction, and not merely from completion a- i the running of trains. (Jcv>x/a l\ic. R. Co. v. StitMaiul, 80 Uit. 776, o'.s'. I-:. Kfp. 27, 12 Am. St. Kep. 282. VViierea comi)any enters into possession of land under a parol license and promises to pay, twenty years' occupancy will bar an action to recover the land. EvansvilU &* T. H. K. Co. v. .\ye, 113 Ind. 223, 15 A'. E. A',p. 261, 12 ll'ts/. Rep. 727- An adjoining landowner cannot build a fence on a strip of land that has been in the exclusive adverse possession of a company for twenty years, neither can he recover damages against the company for the re- moval of such fence. Sherlock v. Louisville, N. A. &• C. R, Co., 115 /ml. 22, 14 lyest. Rip. 843, 17 X. E. Rep. 171. Actual, open and continuous possession by a company of a right of way for fourteen years is sufficient to establish adverse pos- session as against one with whom the com- pany had in contractual relations. Turner V. Union Pac. R. Co., 112 Mo. 542, 20 S. W. Rep. 673. Mere provisions in a corporate charter for compensation to the owner of property taken in invitum for corporate purposes do not necessarily make an entry by the cor- poration upon private property in sub- ordination to the private riglit; such an entry may, notwithstanding the provisions, be adverse and such as may ripen into a prescriptive title. American Bank Note Co. v. New York El. R. Co., so Am. &* Eng. R. Cas. 292, 129 A'. V. 252. In a proceeding to condemn land for the purpose of a railway, consisting of beach and upland, there was evidence offered to the effect that the railroad company in its location and plans had described the beach as belonging to the landowner; that it had always been treated as a part of his estate, and that no one else had ever claimed the beach or damages for the taking of it by the company. There was no dispute but that the adverse occupation of the upland had been in the landowner for twenty years, there being no evidence to distinguish title between the beach and upland. Nelii, suffi- cient evidence to warrant a finding of adverse possession of the beach for twenty years. Amlrew v. Nantasket Beach R. Co., 1 52 Mass. 506. 25 N. E. Rep. 966. a. What Ls not.— An adverse posses- sion cannot be based upon a mere per- mission to occupy lands. Borden v. South Side R. Co., 5 Hun (N. V.) 184; affirmed in 67 iV. v. 588, mem. Possession held under a license cannot be adverse. Blaisdell v. Portsmouth, G. F. &* C. R. Co., 51 A'. H. 483. Where abutting or adjoining landowners cultivate and occupy a part of a right of way granted by Congress as an easement to a railway company, such possession is per- missive only, and not hostile or adverse so as to confer title. Union Pac. R. Co. v. Kin- dred, 43 Kan. 134, 23 Pac. Rep. 112.— Fol- lowing Smith V. Smith, 34 Kan. 293. While a company may have a prescriptive right to maintain an embankment at a cer- tain height, it cannot acquire a prescriptive right to increase its height, unless such in- crease is acquiesced in by persons interested during the time necessary to create a pre- scriptive right. Ohio &* M. R. Co. v. Elliott, 34 ///. App. 589. The constant and exclusive use by a comi pany of a part of a street, as and for a right of way, cannot by the lapse of any time ripen into an absolute ownership of said part. Pndianaj)olis, P. &* C. R. Co. v. Ross, 47 Ind. 25. In a suit to recover from a company the statutory penalty for failure to construct a suitable crossing of its track at a public highway, possession of the right of way for seven years is not a bar where it is such only as is ordinarily taken by railways for the purpose of enabling them to construct their tracks and operate their trains thereon. State V. Kansas City, Ft. S. &* M. R. Co., 54 Ark. 608, 16 5. W. Rep. 657. Where the owner of a tract of land con- veys the same to a company, by which only a portion thereof is used, and the said owner remains in possession of the residue, farming and improving the same, such possession will be deemed to be by permission of the company and not adverse to it. Hence it cannot be made available I v a grantee of said owner in order to set up a title under the statute of limitations. Jeffersonville, M. S^ I. R. Co. V. Oyler, 5 Am. &- Eng. R. Cas. 397, 82 Ind. 394. 1 ADVERSE POSSESSION, 4, 5. lib Where it is complained that the "drill- ing " of cars on a certain track is a nuisance, a company cannot justify such acts on the ground of adverse user, where it appears that the particular track used for that pui- pose has not been laid twenty years, although adj(}ining tracks have been laid and used for more than twenty years. Pennyslvania R. Co. V. Thompson, 45 N. J. Eq. 870, 19 Atl. Rep. 623.— Following Pennsylvania K. Co. V. Angel, 4> N. J. Eq. 316. NOT FOLLOWING Besenian v. Pennsylvania R. Co.,5oN. J. L. 235. Wliere a company surveys the line of its road and stakes it, and sets up posts for fencing, it cannot hold against a purcha.ser on the ground that such acts constitute such possession as amounted to notice to the purchaser. Merritt v. Northern R. Co., 12 Barb. (.V. K) 605. At the time plaintifl took a deed for lands " subject to any right of way said railroad may own over the same," the company held by parol an easement in a strip thirty-five feet wide from the centre of its track across the land, but a fence had been erected and stood only fourteen feet from the centre of the road. After the purchase plaintiflf made improvements on the part of the strip out- side of the fence. Held, that the deed was sufficient notice of the easement of the company to prevent plaintiff from acquiring title by adverse possession. Slociimb v. Chicago, B. &» Q. R. Co., 57 /o7va 675, 1 1 N. IV. Rep. 641.— Distinguishing Davies v. Heubner, 45 Iowa 574. 4. The hostile claim of title.— To overcome the presumption that land is occupied under a legal title possession must be under a claim of title, and must be open, notorious and continuous, and only such as would be consistent with the claim of ad- verse holding. Buttery v. Rome, W. &* O. R. Co., 14 iV. y. S.R. 131. To acquire a public prescriptive right to cross a railroad in a carriage or on foot at what was originally a private farm crossing, established by agreement, it is necessary for the plaintiff to show that there was a public use continued uninterruptedly for more than twenty years, which was adverse and under a claim of right, and not merely a use which was tolerated or permitted by the railroad company. McCreary v. Boston » M. R, G?., 153 Mass. 300, 26 N. E. Rep. 864. Where a company constructs its track un- der a claim of right to the land, and has daily used the track without the consent of the owner of the land for more than 7 years before bringing an action of ejectment, such possession is adverse, and the company is en- titled to hold the land. Under the Florida Statute, where one claims title not founded upon a written instrument or a judgment, the question of adverse possession is not af- fected by the fact that the owner of the land is ignorant of the adverse possession. Florida Southern R. Co. v. Lorin^, 51 Fed. Rep. 932, 2 U. S. App. 310, 2 C C. A. 546. Under the New York Statute of Limita- tions an actual adverse title is not necessary to an adverse possession ; a general assertion of ownership will suffice if there be color of title, however groundless in fact. American Bank Note Co. v. New York El. R. Co., 50 Am. G. R. Co. v. Cogsbill, 85 Ala. 456, 5 So. Rep. 188. A deed is color oi title only of that which is shown upon its face, or otherwise, to be within the description of the grant. When it purports to convey all the right of way, etc., which before belonged to a certain company named, it is not color of title to any tract of land not shown to have been the right of way of the company therein 86 ADVliRSE POSSKSSION, <»-8. mimed. Ohio &^ M. A'. Co. v. Barker, 125 ///. 303. 15 \y^st. h\-p. 139. "7 A'. A". AV/. 797 ; furl Iter ap/na/, 1 34 ///• 470. A conveyance of railroad lands executed by the general supcriniLiident and attorney ill (act, willioul written .iutli(»rity from tlie board of directors, passed no icfjai title or estate as against ilie corporation or the trustees wlio succeeded to its rights; l)iit it would constitute color of tith-, under wliicli a title mi(,'lit be acquired by possession field long cmoukIi to elli'c a statutory t)ar. SttHinn V. dastoii, 87 ^l/it. 569, 6 S<>. Rep. 3»6. A deed "i)f the right of way" of a rail- road, with nothing to define its width, where the charter does not define the extent of the ri.nht of wav, is too indefinite to constitute claim and color under the seven years' limi- tation law of Illinois for 100 feet, where actual possession was not had to that extent for seven years, Wray v. L7iiaii;o, li. ^(2- R. Co., 86 ///. 424. A deed describing premises as the road of a railway company "west of tlie Illinois river, and all brandies thereof which had been constructed before, etc. , and which have since been constructed and built, including the right of way and the lands occupied thereby." wiiere there was no occupancy to the extent of 100 feet for seven years before suit brought, is not sufficient as color of title. Wray v. Chicago, U. &> Q. A'. Co., 86 ///. 424. Where a landowner orally agreed to give to a company the usual right of way, and the company entered thereon and exercised act- ual and exclusive possession of part of a strip of one hundred feet under color and claim of title to the entire strip, such pos- session (or the necessary length of time will afford the comjiany a title, under the Statute o( Limitations, to such entire strip. Hariris V. Kansas City, C. dr' S. A". Co., 43 A»i. &^ Eng. R. Cas. 599, 100 Mo. 210, 13 5. JF. Rep. 680. Even i( there was no specification of the width o( the right o( way, so given, the entry and occupation by the company will, in the absence o( anything to the contrary, be regarded as including the entire width o( land authorized by law to be taken (or rail- road purposes. Harris v. Kansas City, C. &* S. R. Co., 43 Afn. &* Eng. R. Cas. 599, 100 .\/fl. 210, 13 5. IV. Rep. 680.— Quo T- INC. Campbell t-. Indianapolis it V. R. Co., 1 10 Ind. 490, <(. Ni'ccNNity of oiM'iipalioii, IViioo iiiKt ef<'.— When; a company constructs its track over the land of another, and erects buildings thereon, without any written evi- dence of title, and docs not inclose the same, its possession will be limiterl to the ground actually occupied. Illinois C. R. Co. V. Indiana &^ /. C. R. Co., 85 ///.. 21 1. 7. INtsscHsioii of part, claiiiiiiit; wli«l<*. — A landowner quit-claimed a right of way to a railroad company upon which it built its track and continued to operate its trains (or more than 20 years, but a part only of the right of way was in actual use. A subsequent purchaser claimed the part o( the riglit o( way that was not so used. /Mil, that such possession by the railroad com- pany was suflficient to put the purchaser on notice, regardless o( whether the quit-claim deed had been recorded or not, such ad- verse possession by the railroad company of a part o( the right o( way, claiming title to the whole o( it, was notice to all the world. Jeffersonvillc, M. &• I. R. Co. v. Oylcr, 60 hul. 383. A landowner made a plat o( ground which was recorded, showing a donation to a railroad v,ompany o( a strip 250 feet wide. It appeared that the plat was made under the impression that it would not j)ass title, but as a mere declaration of his intention to make the company a title when certain round-houses were built, which the com- pany failed to build. The company claimed possession o( the strip o( land, and in vari- ous ways exercised control o( it and im- proved a portion o( it, both by itseK and by lessees. Held, not suflficient evidence o( adverse possession to make out a title by limitation in (avor o( the railroad company (or the whole of the strip. Missouri Pac. R. Co. V. Ma_fit, 94 Mo. 56, 12 IVesi. Rep. 412, 6 S. IV. Rep. 600. 8. Necessary continuity of posses- sion. — Where the occupant of land entered without color of title, there must be actual occupancy to constitute adverse possession, and the adverse possession in such a case is only co-extensive with such occupancy. Coleman v. Northern Pac. R. Co., 36 Minn. 525, 32 A'. IV. Rep. 859. Where one has been in continuous and uninterrupted possession for 10 years, con- tinuing to the time of bringing suit, he has such title as will enable him to maintain an action (or damages caused by the improjier ADVhkSI-; i'OSSKSSION. 1» l*JI. l> I coDstniclioti i>( II railroad adjacent thi.'rrto. SwfiisoH V. J.ixiiifi;fo>t, (>') A/o. 1 57. A coiitiiiiiotis exclusive possession fur 10 years, under claim of ownership, is not necessary to support a title by adverse pcjs- session. /Inm'/i v. Chiciij^o, /»'. ^ A'. C. A'. Co., H)i Mo. 484, 14 .v. W. AV/. 719, Tiie continued occupation and use of a part of a li>t by a railroad company and its j^raiitors as a ri^ht of way for its road for (tvi'r twenty years, the company exercising c(jntrol over it and using it during that period, will constitute a bar to a recovery l)y the true owner. Hast S/. Louis &^ C. A'. Co. V. iXuxt'iii, 147 ///. 254, 35 ,V. /•;. Ki-p. 464 —Following James V, Indianapolis & St. L. R. Co., 91 111. 554. A company will acquire a right by pre- scription to overflow adjacent lands, if for the full period of twenty years prior to the particular injury complained of the com- pany had continuously maintained a negli- gently constructed embankment, claiming ing the right to do so, without interruption from the landowner or recognition of his rights. In such case the landowner cannot maintain suit. Louisville &• A'. A'. Co. v. .Mossiuan, 90 Teiiii. 157, 16 S. W. Rep. 64. — DisTiNUOi.sniNc; Louisville & N. R. Co. v. Hays, II Lea (Tenn.) 382. Under a sealed agreement with the owner of lands subject to a mortgage, a railroad company, for the benefit of the owner's business, constructed a Y upon the prop- erty iti consideration of a sum certain and the unrestricted right to turn its trains thereon whenever necessary. Afterward the land was sold upon a judgment obtained on the mortgage, and the purchaser and those acquiring his title recognized the continued use of the Y by the railroad company, under the agreement, for a period of twenty years after its construction. A master so finding, on a bill filed by the landowner to compel the company to remove the Y, after such an acquiescence in its joint use for the period stated, it was not error to decree that the plaintiff's bill should be dismissed. Chambers v. Baltimore &• O. A'. Co., 139 Pa. .S/. 347, 21 Atl. Rep. 2. O. Tnckiiif; one adverse posscHNion ii|H>ii an otlior.— Where realty of which a debtor has had adverse and continuous possession under written color of title, is in the hands of a receiver appointed at the in- stance of creditors, the possession of the receiver may, to make out the full period of the prescriptive term, be tacked to that ol the debtor and to that of the purchaser of the premises at a judicial sale. Verdery v. Savannah, /'. &* IV. R. Co., 82 Ga. 675, 9 S, JC.Rep. 1133. 10. Iiiterriipted iMtHNCHNioii.— Where a party enji>ys the use of an easement in a manner otherwise sutFicicnt to gain a riglit by adverse use, he will not be prevented from acquiring the right, even if the other party owning the servient estate verbally objects, or denies the right occasionally during such user, if lie does not in any way interfere with or interrupt that enjoyment, having the power to do so, and the case- ment being of such character that the owner of the dominant estate hafl only \.o enjoy the use without other adversary acts on his part, Kimball v. Ladd, ^z Vt.TXJ- — DlSAPPROvi'.i) IN Chicago & N. W. R. Co. V. Iloag, 90 III. 339. Mere denials of the right, complaints, re- monstrances or prohibitions of user, un- accompanied by any act which in law would amount to a disturbance, and be actionable as such, will not prevent the accjuisition by a canal company of a right to maintain a dam by prescriptiim. Lehigh Valley R. Co. V. Mc Parian, 1 1 Am. &^ Pnff. R. Cas. 509, 43 A^. 7- A. 605. — No'i' FOLLOWING Lehigh Valley R. Co. v. McFarlan, 30 N. J. Eq. 180. 11. Payinoiit of taxes. — Where a claimant to land sells to a company before he receives title from the state, and the company enters upon the and and con- structs a railroad thereor m H has held it adversely and paid the taxes thereon for more than five years prior to the beginning of suit, the company may hold it under the Statute of Limitations, though it is not en- closed on all sides by a substantial en- closure, it appearing that the landowner had obtained the title from the state more than five years before bringing suit. Daniels V. Gualala M. Co., 77 Cal. 300, 19 Pac. Rep. 5'9- 12. When adverse ii,se isa qnestion for the jury.— .A street in which a rail- road track was laid, including a crossing, had been used by the public as a street for more than 20 years, the street itself having been kept in repair by the town and the crossing having been planked and kept in repair for the railroad company. Held, that it was a question for the jury to say, upon all of the evidence, whether such use was 38 ADVIiKSl-; I'OSSICSSION, l;i, 14. -ACiliNCV. I. ailvcrsc or ineri'ly pfiini^sivc. hilchhuti^ A', f (1. V. /'.».i,'<'. 7 «•'"'• ^'^ /'-"X- ^*'- ^'"' ^'^'• 131 ilArvv. 39 1. 1:1. WIm'ii » roiivcyaiive will Xw IM'csiiiimmI.— After continuous user of a rij;lit of way l)y a railroad con)|)any for a period of fifty years, a urant in fee sin)|)lc, or a jiitlj^nient of C(»n(lenination under a writ of condemnation, will be presunied, though the land is a i)art of the sixteenth section. Ditvii V. Meiiipliis &-> C. A*. Co., 39 ^l»i. i!>- Juij,r. A'. Ciis. 65, 87 ///(». 633. 6 So. Nip. 140. A rij,'ht acquired by prescription can never exceed the user in which it had its origin ; it is nuMsured by the extent of that use, and that in turn by its purpose, and where essentially dilierent purposes govern st'par^ite and successive users, it is, as a general rule, impossible to deem the latter identical in any respect or degree with the former. Although a fraction of the right claimed app( tvs to have been common to each user, where no one of them has been of itself and independent of the other for twenty years, and where the fraction was not Capable of a separate user, having of itself a real and conceivable purpose, a grant can- not be presumed. AiiKrican Hank Note Co. V. Atw York El. A'. Co., 50 /hit. &^ E»K''. A*. CdS. 292, 129 A'. )'. 252. — UlSTINT.Ul.SHlNG U.ildwin 7'. Calkins, 10 Wend. (N. Y.) 169. — (JroiKi) IN Syracuse S. Co. v. Rome, W. &(). K. Co.. SI N. Y. S. R. 520. 14. (.'<»iivoyaiicc of land held nd- voFHoIy. -Inasmuch as the possession of a highway by a railroad company, under a statutory license, is presumed to be subordi- nate to the rights of the owner of the fee, a deed thereof by such owner to a third per- son is not void because of adverse posses- sion. liroiestciU v. South S/'di' A\ Co., 55 A'. )'. 220. — DisTiNdUi.SHF.K IN American Hank Note Co. 71. New York El. R. Co., 129 N. Y. 252. Followed in American Hank Note Co. V. New York El. R. Co., 27 J. & S. (N. Y.) 175. AFFIDAVIT. For injunction, sec lNjr'N< iion, 17. Of illegality of execution lale, see E:xKruTioN, 24. To papers filed to incorporate company, see Ini ORI'OKAMON, 10, ADVERTISEMENT. For bids on public contracts, see Claims against U.nited States, 2. ADVICE OF COUNSEL. As a defence, see Contempt, O ; Malicious Pkosecution, 13. AFFIRMANCE. On appeal, see Aitkai., 142. AFTER-ACQUIRED PROPERTY. When subject to deed of trust, sre Ukkds ok iKisr, 7. — — — mortgage, see Mortuaoes, II, 3; II. 4. AGENCY. Agents for carrying mail, transportation of, see Cakriaok ok Mams, III. Agents of express companies, illegal trans- portation of liquors by, see Intoxicatino I.igi oKs, 5. Estoppel by acts of agents, see Esroi-PEL, IV, 3- Jurisdiction of equity over accounts of agents, see Ef^uiTV, 8. Liability of company for acts of agents, see also Express Companies, 1,3; False Im- PklSONMKNT, it. Liability of agent to company, sec also Ex- press Comi'anies, I, 4. Liability of agent to physician employed by him. see Medical Services, Kt. Ratification of acts of agents, see also False Imprisonment, Hi. Ratification of unauthorized employment, see Medical Services, 14. See also Employes; Employes, injuries to ; Fellow-servanis ; Station Acents. I. APPOINTMENT, AHD HOW PBOVEO. p. 38 II. BIGHTS, POWERS AND LIABILITIES OF AGENTS. 42 III. BIGHTS, DUTIES AND LIABILITIES OF PRINCIPALS 51 1 . //; Genera/. 51 2. IVAen Bound iy Agents' Con- tracts 54 3. Liability for Torts of Agents. 61 a. General Rules 61 b. Various Applications of the Rules 73 4. Ratification 80 IV. PUBLIC AGENTS 86 L APPOINTMENT. AND HOW PROVED. 1. Power to appoint agents.— Cor- porations have an implied power to employ AGKNCY, 2 4. 3l» a;{ciils to pcrfiiiin scrvii »•» lliat an; in ktc|> iiij; or liarmuiiy wiili the ^fiioral ilesijjn of their creation, without any special ^jrant hy riiarter. Kitchen v. Cape liiraiiieiiit &^ S. /.. A'. Co., 50 Mo. 514, 8 Am. liy. AV/. 4S1. A MJliDad company is a private corpora- tion, aiul may appoint af^cnts for tiie accoin- plisiimcnt of its purposes. AUhixma ^ I. K. A'. Co, V. h'nid. 29 //A^ 221. A provision in a charter cmpowerinj.j the directors to expend the funds of tlie lom- pany "toward makirif^, rompletin^ and maintainiiifjr tlie railroad," authorizes tliem to ap{)iMnt an a^ent to solicit municipal aid, and t(j nialvc liis compensation a charj^e on the funds of the road ; and for th.it purpose a K solution of the directors, or an entry on tlieir minutes, is suiricient, without a by-law umler seal. Wood v. Ontario ijr^ Q. A'. Co, 24 U. C, C. /'. 334. The letter making piaintifl sucfi general a^ent was from the company's mana^in^ director, //eld, that evidence that he was such managing director was not sufficient proof of iiis autliority to make the contract. It sliould be shown that the act was in ac- cordance with the powers conferred on him, Taylor v. Co/tour^, P- i^ ''/■ A*. *S- M. Co., 24 U. C. C. P. 200. The appointment of an agent to sell or protect tlic timber or lands of a railroad company by the presiflent, vice-president or a director will not bind the corporation unless it appear that tlie power to make such appointment was delegated to such officers by an express provision of the com- pany's charter, to be exercised eitlier under an order of the board of directors or ex-ojfi- cio, but if it appear that the authority was to be exercised under an order of the direc- tors, then the agency may be established by proof of acts of acquiescence. Chicago &• N. IV. Ji, Co. V. /antes, 22 Wis. 194. — Re- viewing Walworth County Bank v. Far- mers* Loan & Trust Co., 14 Wis. 325. Dis- TINGUISHINO Bridgeport Bank v. New York & N. H. R. Co., 30 Conn. 231. 2. When a parol appoiiitnieiit is valid. — The appointment of an agent by a corporation need not be evidenced by the written vote of its functionaries, but may be inferred from the adoption of his acts. Ala- bama (S- T. R. n. Co. v. Kidd, 29 Ala. 221. Where the act of incorporation does not require that the appointment of an agent or the making of a contract shall be by written instrument, and it does not appear to have III I'M •>i> miuli", the :i|i|ioiniini'iii 01 ((nitiact may lie provcfl hy |)arol. lltimilton v. ,\'(7('- (.(v//(' iJr' I>. A'. Cii., y hitt. .i59, It is the duty of a ccjrporation carrying on a trade to have on the sjuit an olhier with authority to do for the company all that the Ji'dinary exigencies of its business might require to be rlone promptly. In this re- spect there is no dilTerence between a cor poration and a parlnorslii|), and it is not necessary, in order to bind the company, to show that the officer had authority under seal. Giles v. Taj I'ale A". Co.. 2 AV. 11 t^ngiigcd by a Q. R. Co., 24 U. C. C. P. 334. A company was sued for a trespass in cutting timber by one who was superintend- ing or periorming work connected with the construction of the road. The question of the company's liability turned upon whether such person was an independent contractor or only the agent of the company. HeU , that if tlie names of the persons employed by such person were entered upon the pay- roll of the company, and they were in fact employes of the company, and received certificates of their time from the company's timekeeper, this would fix his relation to the company as a mere servant. New Or- leans &• N. E. R. Co. v. Reese, 18 Am. .S'/. L. R. Co., 37 Minn. 151. 33 N. IV. Rep. 332- 8. or his dccIaratiuiiM. — Mere representation of an assumed agent cannot be taken as constituting an agency. Taylor V. Second Ave. R. Co., 17 /. &• S. (;V. V.) 513 — Following Marvin i/. VViibur, 52 N. Y. 270. The declarations of an agent are not ad- missible to prove an agency, but where there is testimony to show ratification, or original authority, or a holding out to the world as having aiiihority, such declarations accompanying tho act aie admissible to show in what capacity he contracted. Hirschmann v. Iron Range iS^* H. B. R. Co., 97 Mich. 384. Evidence of the mere statement of a con- ductor or agent of a railroad conipany, that he is such conductor or agent, should not be received as proof of the fact; but one who has control of a train, and exeicises llie authority of a conductor, may rightfully be presumed to be such, aside from his declara- tions. Columbus, C. &" I. C. R. Co. v. I'mvell, 40 ///(/. 37. In order to render a railroad liable for an itijury to plaintiff caused by his being pushed from the platform of a car by some person apparently in the employ of the company, it must be shown that such person was actu- ally a servant of the railroad, but his own declarations that he was in charge of the car will not be legal evidence of that fact. Lindsay v. Central R. &^ li. Co., 46 Ga. 447, II Am. Ry. AV^. 415. DlsriNUUlSHED IN Central R. Co. v. Gleason, 69 Ga. 200. A railroad applied to the owner of a dredging and pile-driving machine for an estimate on certain work of the company, which he furnished. About two weeks thereafter one claiming to be the company's agent, but who, in fact, was only a contrac- tor, secured the machine and crew to oper- ate it. Held, that the railroad was not liable to the owner of the machine for the work done. Chicago &* G. E. R. Co. v. Fox, 41 ///. 106.— Distinguished in Solo- mon R. Co. V. Jones, 34 Kan. 443. ]). Agent of company when agent of other party to contract. — A carrier who undertakes to carry cannot make another the consignor's agent for that pur- pose. Fischer v. Merchants' Dispatch Transp. Co., 13 Mo. App. 133. In an action to recover on "drawbacks," it appeared that the contract was made by an agent of the company with the shipper, by which the money on the drawbacks was to come through the agent. Held, that the agent of the company became the agent of the shipper, and payment of the money by the company to the agent released it from liability. Pittsburgh, F. IV. &^ C. R. Co. \ . Fawsett, 56 ///. 513, 4 Am. Ry. Rep. 405. A contract between a railroad company and a coal company provided that the former should transport coal to a certain desig- nated place and there deliver it on boats as directed by the coal company, the orders being directed to the agent of the railroad company at the point where the coal was to be delivered on the boats. Held, that such agent was not the agent of the coal com- pany so as to bind it by his acts and declara- tions. Kelly V. Lehigh Valley C. Co. 8 Daly (A'. F.) 291. Plaintiff employed a depot agent to pur- chase cotton for him and hold it for for- warding over the agent's railroad according to plaintiff's directions. Held, that the agent in such dealings acted solely as the plaintiff's agent, and that there was no liabil- ity on the company for any loss resulting from the failure of the agent to perform his duty with reference to such transactions. Sumner v. Charlotte, C. &* A. Ji. Co., 78 A^. Car. 289, 1 6 Am. Ry. Rep. 201. Where it appeared that the plaintifT in- structed the depot agent not to ship until he had purchased a certain number of bales, and before he had acquired the requisite 42 Ar.KNCV, lO, 11. number the railroad was taken by irresist- ible force into the complete control of the Confederate government, the agent there- after acquiring the requisite number, held, error to submit to the jury an issue as to whether or not it was impossible for the de- fendant company to ship the cotton. Sum- ner V. Charlotte, C. o-^ v/. A'. Co.. "8 ,\'. Cur. 289, 16 /l>n. Ky. Rep. 201. The defendant was not liable as common carrier but as bailee, if at all ; and the fact that before the requisite number of bales was obtained by the agent the railroad was seized by the Confederate government, is at least evidence to be considered that the de- fendant never received the cotton at all. either as bailee or common carrier. Sumner V. Cliiuiotte, C. &-^ A. R. Co., 78 X. Car. 289. The president of a railroad fraudulently induced his aunt, a stockholder, to part with certain shares of stock, representing that a loan of them for the company was neces- sary. He at once pledged them for his own debt, and afterward transferred to his aunt in lieu thereof certain certificates of an over-issue of stock. Held, that the presi- dent acted as the agent of his aunt in the transaction, and tiiat the loss must fall on her. IVn'x/it's Appeal, 99 Pa. St. 425. II. BIGHTS, POWERS AND LIABILITIES OF AGENTS. 10. Iinplietl powers, generally.— A r idroad company acts through the instru- mentality of its officers and agents, and if not prohibited by the charter it may dele- gate its authority to its officers and agents, so far as may be necessary to effect the pur- poses of its creation. Was/idurn v. Nas/i- ville 6* C. R. Co., 3 Head {Tenn.) 638.— yuoTED IN Nashville &C. R. Co. t\ Carroll, 6 Heisk. (Tenn.) 347. It seems that agents intrusted with the duty of procuring the right of way for rail- ways have the incidental authority to con- tract for crossings that shall be made. Clouse v. Canada Southern R. Co., 14 Am. &» Enjr. A'. Cas. 456, 4 Ont. 28. A sub-inspector of railway police, whose duty it is to attend on the spot where an accident occurs, and who at such time and place is the superior of all other servants of the company, has implied authority to pledge the credit of the company for the care of and supplie3 to persons injured. Lans^an v. Great Western R. Co., 30 L. T. iV. 6". 173; affirming 26 L. T. N. S. 577. Certain subscribers, interested in a pro- jected road, authorized agents to contract with a railroad company lor the construction of the road, and authorized the agents, upon the road being built to deliver the sub- scriptions to the company. Held, that the agents were empowered in delivering such subscriptions to affix the necessary stamps thereto as required by law. Cedar Rapids Hr' St. J'. R. Co. V. .'itewart, 25 Iowa 115. In assumpsit for personal services against a railroad company, it appeared that the plaintiff, by a letter to P., an ex-president of the company, in relation to his unpaid vouchers for said services, which had been left by him with P. for settlement prior to his resignation, authorized P. as follows: " I hereby authorize you to make the best settlement you may be able to do for me." Held, that the term "settlement," as used in said letter, included not only the deter- mination by P. of the amount due, but the collection and receipt by him of money coming to the plaintiff under such settle- ment. New York, P. &> N. R. Co. v Bates, 68 Md. 184, II ////. Rep. 705. The failure of P. to pay over to the plain- tiff the money collected from the company under said authority gave the plaintiff no right of recovery against the company, if the latter acted in good faith in the matter of the settlement, and payment of the money to P. New York. P. &* N. R. Co. v. Bates, 68 Afd. 184, II Atl. Rep. 705. 11. of general ngents. — If an agent of a corporation is allowed to exercise general authority in respect to its business, or a particular branch thereof, for a considerable time ; or, in other words, if he is held out to the world as having authority in the prem- ises, the corporation is bound by his acts in the same manner as if the authority were expressly grarted. Hirschmann v. Iron Range &> H. .B. R. Co., 97 Alic/i. 384.— Quoting Olcott ?: Tioga R. Co., 27 N. Y. 546. The powers of the general agent of the owner of a railroad are such as will warrant him in executing a lease of property to be used as a ticket-office for the road. £c/ter V. Chicago, B. &> Q. R. Co., i Am. &• Eng. R. Cas. 357, 8 Mo. App. 223. Where a general agent is clothed with certain power under the company's charter or by its lawful act, the use of that power in an unauthorized or prohibited manner will render the corporation liable as to innocent AGENCY, lU, I:J. 43 third parties. Madison &^ I. R. Co. v. Xor- wich Sav. Society, 24 hid. 457. An agent of a corporation, appointed by the directors for the purpose of superin- tending and carrying on its business, has no authority, in virtue of such agency, to pledge or mortgage the machinery used by the company for the security of a loan. Despatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205. Where the corporation have a general agent, who is employed by them for the ex- press purpose of receiving and transporting merchandise for hire, and is held out to the world as invested with authority for this purpose, if goods are delivered to him to be transported in the way of his duty, the corporation will be liable for the manner in wiiich that duty is performed, and the con- tract of bailment may be regarded as made with them. May all v. Boston &' M. R. Co., i<) N. //. 122. The power to make declarations or ad- missions in behalf of a company as to events or defaults that have occurred and are past, cannot be inferred as incidental to the duties of a general agent to superintend the current dealings and business of the company. Smith v. North Carolina R. Co., 68 N. C. 107.— Not Following Charles- ton & S. R. Co. V. Blake, 12 Rich. (S. Car.) 634. Distinguishing Morse v. Connecti- cut River R. Co., 6 Gray (Mass.) 450. Defendant, by its general manager, con- tracted with plaintiff for the publication in its paper of certain matter by a given date, the matter to be furnished and the details of the publication to be looked after by de- fendant's passenger-agent. The agent failed to furnish the matter until after the date named in the contract for its publication. As soon as the matter was furnished plain- tiH published it, in accordance with the con- tract except as to time. Held, that the plaintifl had a right to assume that the de- lay of the agent was authorized by defend- ant. American Graphic Co. v. Minneapolis, St. P. &• S. S. M. R. Co., 44 Minn. 93. 46 A'. IV. Rep. 143. 1 2. of special agents. -Where a company sends an agent to the scene of an accident in charge of a wrecking train and crew, he has the implied authority to em- ploy additional help if he deems it neces- sary. Goffw. Toledo, St. L. 6- K. C. R. Co., 28 ///. App. 529. Where a person is specipJIy employed to trace and find property which has been lost or mislaid by a railroad company, he has not the implied authority to settle the damages for the company's neglect to carry safely or promptly. Congar v. Galena &* C. U. R. Co., 17 Wis. 477. A mere agent to solicit business has no power to make for the company a contract for the carriage of freight beyond its line, unless such power has been expressly con- ferred, or is to be implied from his previous conduct, on the principle that the company has allowed him to hold himself out as pos- sessing such a power. Crouch v. Louisville &• N. R. Co., 42 AIo. App. 248. 13. of agent to ship goods.— Authority to an agent to ship goods implies the authority, as a general rule, to negotiate for terms of shipment and to accept a bill of lading from the carrier containing limita- tions of the carrier's liability Illinois C. R. Co. V. Jonte, 13 ///. App. 424; Brown v. Louisville &> N. R. Co., 36 ///. App. 140.— Quoting Illinois C. R. Co. v. jonte, 13 III. App. 424, Merchants' Despatch Transp. Co. V. Joesting, 89 III. 152. Western Transit Co. V, Hosl'ing, 19 ///. App. 607. Nelson v. Hudson River R. tV^, 48 A'. Y. 498. — Apply- ing London & N. W. R. Co. v. Bartlett, 7 H. & N. 400. Following London ?'. North Western R. Co., 7 H. & N. 600; Lewis V. Great Western R. Co., 5 H. & N. 867. Reviewing Squire z/. New York C. R. Co., 98 Mass. 239. An agent employed to ship goods to the owner has authority to make such contract with the common carrier as in the honest exercise of his discretion he sees fit. Where no particular agreement is made at the time of shipment, the fact that the agent and the carrier have a habitual course of dealing in respect to contracts for transportation is a material and in-portant element in deter- mining the construction to be put upon their acts. Shelton v. Merchants' Despatch Transp. Co. 59 A'. V. 258, \^How. Pr. 257 ; reversing 1^ /.&* S. 527. — Following Mills V. Michigan C. R. Co., 45 N. Y. 622. Distinguished in Wilde v. Merchants' Despatch Transp. Co., 47 Iowa 247 ; Little z/. Fargo, 43 Hun (N. Y.) 233, 5 N. Y. S. R. 462. Where parties are directed to ship goods by express, they are deemed to have the au- thority to make such contracts as the ex- press company insisted upon, such as the signing of a receipt which is in a book pre- 44 AGFA'CY, 14 19. pared and printed by llie express company and furnished for such purpose. Meyer v. Harndens Exp. Co., 24 Hmv. Pr. (N. Y.) 290. Where a purchaser of oil has made a writ ten contract with a railroad company for shipment to him of the oil, his agent at the point of shipment, to whom the written con- tract is forwarded and who was intrusted only with forvvarding the oil, has no au- thority to vary the written contract. ^Vig- gins V. Erie R. Co., 5 Ilitn (.V. }'.) 185. A shipper's broker has no implied au- thority, as such, to direct for the shipper the delivery of goods held by a carrier subject to the sliipper's order. IVatson v. Hoosac Tunnel Line Co., 13 Mo. App. 263. 14. of eoinpaiiy's avt'i'iit to re- ceive i^ood.s for sliiiniieiit.— -An agent of a railroad company whoisauthorized tocon- tractfor the transportation of goods has the power to contract so as to bind the company to carry the goods in a reasonable time. Blodgett V. Abbot, 72 Wis. 516, 7 Am. St. Rep. 873, 40 A'. W. Rep. 491. The agent of a company who is intrusted with the duty of making special rates may contract to givea rebate. Marsh v. Chicago, R. I. (St* p. R. Co., 79 hnva 332, 44 X. W. Rep. 562. Where, according to the general scope of the business of a railroad, it only carries goods over its own line, it will not be bound by a contract made by one of its agents to carry beyond its line, where it appears ttiat he acts contrary to his instructions and with- out the knowledge of the superior officer of the company. Rurroughsx. Norwich &* W. R. Co., 100 Mass. 26. - APPROVEt) m Wait V. Albany & S. R. Co., 5 Lans. (N. Y.) 475. Revikwko iNGrover& B. S. Mach. Co. 7/. Missouri Pac. R. Co., 70 Mo. 672. 15. of selliiij;: agent.— A broker who was charged with selling a lot of railroad iron for cash, and who did not have possession of the iron, is not authorized to demand or receive i)ayment of tlie price when the goods are delivered, nor to vary the terms of the sale and receive notes therefor ; nor, having received notes, afterward to collect them. Western R. Co. v. Roberts, 4 Phi/a. (Pa.) no. 10. of i>iireliasiii{ra{;eiit.— Alocal agent who is intru.sted with buying cotton for non-residents and shipping the same to them is presumed to have authority to make any lawful contract concerning tlie shipment of the cotton, in the absence of anything to show the limited authority given him. Mis- souri Pac. R. Co. V. Internationa/ Af. I. Co., 84 Tex. 149, 19 i" . W. Rep. 459. The by-laws of defendant provided that "the purchasing-agent shall, under the di- rection of the executive committee or some one authorized by them, buy all materials and supplies in general use in every depart- ment of the service, excepting such articles or materials the purchase of which may be especially intrusted to other parties. He shall order for and furnish supplies to the various departments on written requisitions of the heads thereof or such other officers of the company as may be designated by the president or first vice-president, such requi- sition to be examined and approved by the auditing committee, to whom he shall certify all bills for purchases made by him." //«'/(/, that as matter of law, the purchasing- agent had actual authority to make con- tracts to supply defendants with all blank- books it would require in its business from June I, 1883, to May i, 1884, and to supply it with all the printed blanks it would re- quire in its business for the year 1884. Levey V. New York C. R. Co., 4 Misc. {N. Y.) 415. 17. engineers. — The duties of an engineer are such that, without special au- thority, he has no power to make contracts that will bind the company. Gardner v. Poston &^ M. R. Co., 70 Me. 181. An engineer, as such, has no authority to pledge the company to pay indebtedness due from a contractor, who is engaged in building the road, to one of his employes. Powrie v. Kansas Pac. R. Co., i Colo. 529. 18. railway surgeons.— The sur- geon of a railroad company has no implied authority to bind the company by an agree- ment to pay for services and ireals furnished nurses and others in attendance upon an eniploye injured by an accident on the road, and under the surgeon's treatment. Bush- nell V. Chicago (S^ N. W. R Co., 69 Iowa 620, 29 A". W.Rep.ysy — Disi int.uished in Pieart v. Chicago. R. I. & P. R. Co., 82 Iowa 148. See St. Louis, A. S. R. Co. v, Hiiubicks, 48 Ark. 177, 2 S. IV. Rep. 783. Evidence that brakcmen of a railroad train are in the habit of ejecting tramps from the train, who refuse to pay fare, is ad- missible to prove that it is within the line of the brakemen's duty to do so. .SV. Louis, I. M. G^ S. R. Co. V. Hendricks, ^'& Ark. \TJ, 2 S. W. Rep. 783. Where the issue is made whether a cer- tain party had authority to act for several connecting railroads and to bind them by his contracts for the carriage of goods, proof tending to show that such roads form a through line, and had a common office in charge of a general agent, with a clerk with whom the contract in question was made, are proper to submit to the jury, on the question of agency, and the statements of the alleged agent are not conclusive. Bar- rett V, Indianapolis S^ St. L. R. Co., 9 Mo. App. 226. The frequent exercise of power by an agent, which from its nature must have been known to the principal, may be re- garded by persons dealing with the agent as sufficient evidence of the real existence of the power which the agent assumes to exercise. Hull v. East Line iS~» A'. A'. R. Co., 28 Am. &^ Eng. R. Cas. 221, r,6 7'e.v. 619, 2 S. IV. Rep. 831. 22. Question of antliorily wlien for jury. — Where, in ;in action for damages growing out nf allej;ed negligence on part of the company in complying with a verbal 46 AGENCY, 23. contract between the plaintiff and the com- pany's iif^ent. the company denies the author- ity of liie agent to make the contract, and there is evidence tending; to prove that the aj{ent iiad no authority to ni.iiie tlie con- tract, it is error for tlie court to assume that tile agent had authority and so instruct the jurv. Tlic question of authority sliould be suljuiilted to the jury. Missouri Pac. A\ Co. V. Carpenter, 44 Kan. 257, 24 Pac. Rep. 462. A drover having sued a railroad company for a personal injury received while riding on tlie ens;iiie, the company set up the de- fence that the rules of the company forbade its employes to permit any person to ride on an engine, and that the plaintiff was not entitled to be carried as a part of the con- tract to carry his cattle. }[eld, that it was a question for the jury to say, under all the facts of tlie case, whether the company had by its C(jnduct held out its employes as authorized to consent to carry him on the engine under the contract to carry the cattle. Water bury v. Ne^o York C. &> H. R.R. Co.. 21 Blatchf. {I/. S.) 314, 17 /V. Deleware, L. & W. R. Co., 57 N. Y. 382 ; Ohio & M. R. Co. V. Muhling, 30 111. 9; Ryan v. Cumber- land Valley R. Co., 23 Pa. St. 384; Gill- shannon V. Stony Brook R. Co., 10 Cusli. { Mass.) 228. Plaintiff sued defendants for breach of an agreement to carry lumber for them at a stipulated price. Defendants pleaded that the agreement was made by them as agents and directors of the company, of which plaintiff had notice. It appeared that de- fendants were, at the date of the agreement, one president and the other managing direc- tor of a main line and lessees of a branch line ; that by reason of the company having been long insolvent the main line had been solely within defendants' control, as princi- pal bondholders of the company; and that what they did personally was in substance, therefore, done on the company's behalf. Ne/d, that whether the agreement was made by defendants acting as agents for the direc- tors of the company, of which plaintiffs had notice, was for the jury. J\feDouifa/i v. Covert, 18 U. C. C. P. iig. tS3. Liinitutious of iig:eiits' author- ity— Secret liistriictioiis.*— Those deal- ing with an agent c. i railroad company have a right to conclude that the principal *See alio in/ra, 46, 74. inten 's the agent to h.ive and exercise those power.";, and those only, which necessarily, properly and legitimately belong to the character in which he holds him out, and this irrespective of any instructions or re- strictions on his power; and this authority may be inferred from the agent's employ- ment. /Harrison v. Kansas City, C. &* S. R. Co., 50 Jfo. App. 332. Restrictions upon an agent's apparent authority are not binding upon third per- sons, where there is nothing to put them on inquiry as to the extent of his actual author- ity. Lake Shore &= M. S. R. Co. v. Foster, 104 Ind. 293, 4 A'. E. Rep. 20, 54 Am. Rep. 319. Approving Brooke v. New York, L. E. & VV. R. Co., 108 Pa. St. 529, i Cent. Rej). 123. Explaining Armour v. Mich- igan C. R. Co., 65 N. Y. Ill, 22 Am. Rep. 603. Baker v. Kansas City, St. J. &^ C. B. R. Co., 28 A/n. (5» £n^. R. Cas. 61, 91 J/o. 152, 36'. IV. Rep. 486. — Approving Cjrover & B. S. Mach. Co. v. Missouri Pac. P.. Co., 70 Mo. 672. Quoting Burtis v. Buffalo & S. L. R. Co., 24 N. Y. 274. It is not sufficient for the master to give proper instructions to his servants to avoid liability ; but he must also see that they are obeyed. Johnson v. Central Vt. R. Co., 19 Am. &> Eng, R. Cas. 169, 56 Ft. 707. The liability of a common carrier cannot be limited by secret instructions given to his general agent. When a stage proprietor has habitually carried in his coaches per- sons and baggage or packages, the regula- tions of his line and instructions to his agents not to receive goods to be carried, except as the baggage of passengers or in the care of, but at the risk of the owner or of the person sending them, will not limit his liability for goods re- ceived by his agents, unless the owner or his agent was notified of the rule or instruc- tions at the time of the receipt of the goods. Walker v. Skipwith, Meigs {Tenn.) 502. — Explained in Southern Exp. Co. v. Womack, i Heisk. (Tenn.) 256. Any arrangement made between a car- rier and his servant, by which the servant is to be paid for the carriage of particular parcels, will not exempt the carrier from responsibility for the loss of them, unless such arrangement is known to the owner thereof, so that he contracts exclusively with the servant. Mayallw. Boston ^'M. R- Co, 19 N. H. 1 22. --Reviewed in Wilson V. Grand Trunk R. Co., 57 Mc. 138. AGENCY, 24-27. 47 24. Must contract in uaiiie of priu- clpal.— In order lo make u written con- tract made by an agent binding un the principal per se, it should appear to have been made in the name of the latter ; but the form of the signature is unimportant. Lazarus v. Shearer, 2 Ala. 718. A written contract for the sale of wood to a railroad, which on its face purports to iiave been made by one of tiie parties thereto through their agent, and which is signed and sealed by the agent in his own name, is not a binding obligation. Sherman v. New York C. R. Co., 22 Barb. {N. K.) 239. 25. Siguiiigr as "aj^eut tor" prin- cipal. — A writing in these words : " Hired of R. C. the following negroes, to wit," &c., "to work on the M. & C. railroad, from now until the 25th December next; for which I agree to pay said C. twenty- five dollars per month each, and I also agree to feed, and pay all medical expenses, if any; and the said C. loses all runaway time, if any. Given under my hand and seal ;" and signed, " W. H. E., agent for M. & C. R. R. Co.. per W. M. N.," is, prima facie, the contract of the agent, and not binding on the principal per- sonally. Crutcher v. Memphis &> C. Ji. Co., 38 A/a. 579. 2G. Ititirht to employ sub-agent or assistant. — A head brakeman of a con- struction train, in the temporary absence of the conductor at a station, has no implied authority to engage a bystander to get on the cars and assist in switching. Church v. Chicago, M. <&* St. P. R. Co., 50 Minn. 218, 52 N. VV. Rep. 647. A railroad company employed a detective to recover a lot of stf>len goods and to cap- ture the thief, who in turn employed plain- tiff, telling him that if the company did not pay him he would. Held, in the absence of any evidence to show that the detective was authorized to employ plaintiff, a verdict against the company for his services could not be supported. Illinois &- S/. L. R. Co. V. Dawson, 3 ///, App. 292. Where the servant of a railway corpora- tion, not having authority from the cor- poration to employ other servants, engaged G. to assist him in moving a crate of crock- ery, and through the negligence or ineffi- ciency of G., combined with the carelessness of the servant, the crate was overturned, striking the plaintiff, whereby he suffered a severe injury, held, that the corporation was not liable for the negligence of G., nor for the fault of its servant in employing G. to assist him, even admiiling G. to have been an improper pL-rsoii to engage for that service. Jeivell v. Grand Trunk R. Co., 55 JV. H. 84, 1 1 Am. Ry. Rep. 496. 27. Bight of agent to deal for Ills own benefit. — An agent employed by a company to purchase wood or timber-laiids for its use, has no right to receive from the vendor a commission on the amount of the purchase-money, for procuring the sale. Morrison v. Ogdensburg &* L. C. R. Co., 52 Barb. I^N. Y.) 173. An agent whose duty it was to purchase wood or timber-land for the use of tlie road, examined certain lands in company with a director, gave his opinion as to the amount of wood thereon and advised the purchase. It turned out that at the time the agent was to receive a commission on the sale from the vendor if the sale was completed, which was not made known to the director or any one else. Held, that such conduct was good ground for his discharge, and it appearing that the company had paid more for the land than they otherwise would have paid, the amount of the agent's commission belonged to the company. Morrison v. Og- densburg 6- L. C. R. Co., 52 Barb. {N. Y.) 173- A person employed by a company to pro- cure subscriptions to stock, while so engaged and without the knowledge of the company, received certain awards or compensation from individuals for procuring their lands to be taken as stocks subscribed. Held. that receiving such compensation was a violation of his duties to the company, and worked a forfeiture of any claim to com- pensation from the company. Cleveland &* St. L. R. Co. v. Pattison, 1 5 Ind. 70. The purchase of bonds by the financial agents of a railroad company on belialf of a syndicate, of which two partners of the firm acting as agents were members, is not invalid as a breach of the fiduciary relation of the financial agents, when it appears that the price of the bonds was fixed by the rail- road company, and that the agents did not abuse any trust or obtain any advantage from the transaction. Hinton, J., dissent- ing. Atwood v. Shenandoah Valley R. Co., 38 Am. dr' Eng. R. Cas. 534, 85 Va. 966, 9 S. E. Rep. 748. An indebtedness of a railroad company to a town was assigned in writing to one who purchased with his own money, but was act- 48 AGENCY, 38, 20. inj; at the same time as the agent of the company. Held, tliat tlic C(^rn|>iiny could not have tlie benefit of the pnrchase willi- oiit an ofTer to pay, and that ii was imma- terial in what light the town countil re- garded tlie transaction. Ridcnoiir \. Wlui- ritt, 30 Ind. 485. 28. Duty to nt'couiit.— An agi'nt f)f a railroad who is required to remit all sums over $10 to the comi)any daily, has a reasoniihle time in whicii to remit, and where money was received by him too late to be remitted on ace )unt of other duties, he cannot be held liable where it was stolen. Robinson v. Illinois C. A'. Co., 30 Iowa 401. A power of attorney to a party to sell lands belonging to a railroad company, at not less than a fixed price, makes it the duty of the attorney-in-fact to sell the land for the highest price he can get, and it becomes his implied duty to account to the company for the whole amount of the purchase- money ; and if it appear- that he reports the sale at a less amount than he in fact re- ceived, the purchaser being privy to an ar- rangement by which the agent shall claim a part of the purchase-money, a bill in equity may be maintained by the company to re- scind the sale. Milhr v. Louisville &^ A'. A'. Co., 83 Ala. 274, 3 A>n. Si. Rep. Ti2, 4 So. Rep. 842. 2tK Lialiility to iiriiieiiml, gener- ally.— A cashier or clerk of a company who has charge of its moneys is under a legal liability to the company to take care of and preserve its funds so intrusted to him, and if he loans the company's money to a fellow-servant without authority, he will be liable personally to the company for the same, and if he pays the same he cannot recover it back. St. Louis, A. &^ T. H. R. Co. V. Thomas, 85 ///. 464. The balance-sheet of a freight agent re- turned to the company, of the receipts and disbursements of his office, is not an admis- sion on his part that a deficit is chargeable to himself. Chicui^o &• A. R. Co. v. Hig- gins, 58 ///. 128. 10 Am. Ry. Rep. 434. Where bonds of a railroad company are deposited in the hands of agents for the company, to be issued by them to contrac- tors on the performance of, and as required by the terms of their contract, but the bonds were never earned and delivered after demand, the company may maintain a suit in equity against the agents to compel a surrender of the bonds, and for damages accruing from their detention ; or if the bonds cannot be obtained, then for their Viilue, it appearing that tl.e bonds were pay- able to order, and if issued, constituted valid obligations of the company. IVestern R. Co. V. liaync, 75 A^. Y. I ; affirming 1 1 Hun 166. Where agents of a railroad company have wrongfully disposed of its bonds, in an action iigainst the agents to recover the bonds or their value, //•/«/«( /rtivV, their value is the amount of the bonds witii interest until paid ; but it is competent to show the ina- bility of the company to pay, either in whole or part. In such case proof of their market value is not proof of the value as between the company and the agents. Western R. Co. V. Bayne, 75 A'. Y. i ; affirming 11 Hun 166. In order to recover by a railroad company for funds charged to have been fraudulently misapplied and embezzled by its agent, it is necessary to show that the agent received tlie money, and also that he fraudulently misapplied or embezzled it, the burden of proof to establish these facts being always on the company, Panama R. Co. v. 'John- son, 58 Hun {N. Y.) 557, 35 A^. Y. S. R. 560, 12 N. Y. Supp. 499. The agent of a railroad company, by mis- take, delivered coal to the wrong party. A general agent discovered the mistake and attempted to collect the price from the per- son to whom the coal was delivered, but failing, sued the agent who delivered the coal. Held, that if the agent was thrown o(T his guard or suffered by the act of the gen- eral agent by not informing him of the mis- take sooner, then there could be no re- covery. Philadelphia &* R. R. Co. v. O'Don- nell, 12 Phila. (Pa.) 213. A person, as the agent of a firm of con- tractors for the construction of a railroad, procured subscriptions for the purpose of securing the location of a depot at a certain point on the road, in which those who made the subscriptions were interested, the con- tractors having no power, under the terms of their arrangement with the railroad com- pany, to fix the location of the depot at the place desired. The agent who thus pro- cured the subscriptions was at the time a director in the railroad company, and, hav- ing applied the proceeds of the subscriptions to his own use, in a suit by his principals to recover from him the money so obtained, he set up the supposed illegality of the contract AGENCY, 30, 31. 40 resulting from his official relation to the railroad company as a defence; but it was held, he was estopped from relying upon such defence as agamst his principals. Snell V. Pells, 113 ///. 145. — Distinguishing Marsh v. Fairbury, P. & N. W. R. Co., 64 III.. 414 ; St. Louis, J. & C. R. Co. v. Math- ers. 71 111. 592. Defendant being employed by the plaintiffs as their locomotive and car superintendent, made use of their materials and men in do- ing work for a sewing-machine manufactory, in which he was a partner, and untruly en- tered such time and materials as employed in the plaintiffs' service. The plaintiffs having sued him upon the common counts, claiming in their particulars for goods fur- nished but not for work and labor, Held, that they could recover under the particu- lars, for proof of the work expended in the goods was a mode of ascertaining their value, and the defendant could not have been misled. Defendant was precluded by his own misconduct from setting up as a de- fence that the plaintiffs, under their charter, could not sue on such a cause of action. Northern R. Co. v. Lister, 27 V. C. Q. B. 57- 30. oil official bond. — The sure- ties in a general freight agent's bond are not liable for a defi>_ic in his accounts, arising from the default of his subordinates, under a general clause in the bond, that "such agent shall well and truly perform and exe- cute the duties of freight agent, and shall render a just and true account of all moneys, goods and chattels which shall come into his charge or possession," where the subordinates are appointed by the com- pany, with the approbation and consent of the general agent, and acting under his control. Chtcai!;o &* A. R. Co. v. Higgins, 58 ///. 128, 10 Am. Ry. Rep. 434. A surety on a bond given by an agent of a railroad company for the faithful per- formance of his duties as agent is not re- leased by his discharge in bankruptcy from liabilities accruing under the bond after the estate of the surety is settled up by his as- signee, but he is released by his discharge from liabilities accruing before that time. Greenville 6^ C. R. Co. v. Maffett, 8 So. Car. 307. A bond for the faithful discharge of his duties by an agent is a continuous indem- nity, binding the sureties from time to time i'.s breaches occur; and until there is a I D. K. U —4. breach there is no debt of the surety, either existing or to become due, which can be proved against his estate in bankruptcy. Greenville &• C. R. Co. v. Maffett, 8 So. Car. 307. Where a ticket agent gives bond and se- curity as agent of one of two offices that the company maintains in a city, the consolida- tion of the offices and imposing the duties of both upon him without the consent of the sureties in his bond will discharge them. Mumford v. Memphis &» C. R, Co., 2 Lea (Tenn.) 393.— Reviewing Northern R. Co. V. Whinray, 26 Eng. L. & Eq. R. 488. Where a company has two ticket offices in a city, and the agent gives bond to faith- fully account for money received at an office in the city, without showing to which office he is to be assigned, and afterward the duties of both offices are imposed upon him, without the assent of the sureties, it is com- petent to prove by parol to which office the bond related. Mutnford v. Memphis &* C. R. Co., 2 Lea (Tenn.) 393. 31. for negligence or miscon- duct. — Where a third party has recovered against a railroad company for injuries sus- tained through the negligence or miscon- duct of its employes, the company may re- cover over against such employes. Grand Trunk R. Co. v. Latham, 63 Me. 177. Common carriers, who, by negligent de- livery of goods have been rendered liable for their value, cannot maintain an action against their agent, through whose means the goods are lost, unless such agent was in the first instance guilty of the negligence. Brooks V. Lawrence, i Edm. Sel, Cas. {N. V.) 496. An agent may be liable to his principal for loss occasioned by his misconduct, al- though such misconduct is not the direct cause of the loss, and the loss was imme- diately attributable to the intervention of third parties. Memphis &* C. R. Co. v. Greer, 38 Am. &- Eng. R. Cas. 248, 87 Tenn. 698, n 5. IV. Rep. 931. One may employ a servant for the express purpose of protecting himself from loss that may arise from negligence of his other ser- vants, and if such employe negligently and in violation of his duty puts his principal in an attitude whereby loss occurs through negligence of his other servants, and such loss could not have arisen had such duty been performed, then such employ^ is liable to his employer for such loss. Memphis &* 60 A(iIi\CY, ;I2-II4. C. A'. Co. V, Grffr, 38 /iw/. &* Eni^^. A'. Cas. 248.87 /'<■««. 698, II s. ly. A'aiiy is empowered to employ assistants or sub- UKenls, so that iliey become directly liable to the romi)aiiy for the manner in which they discliarj^e their duties, the a^ent hirinj,' them is not himself lesjioiisihle for their conduct, unless lie fraudulently procures their appointment with knowledge of their dislionesty or incompcntence. LoHisvitle &* N. R. Co. V. niiiir, 4 ■Z^'" >•'• ( Tenn.) 407; iijfirmiiii; i Tiiiii. CIt. 351. :ia. liability ol' aKfciits to third persons.— A servant of a c(jrporati(jn who docs an act forbidden by law is responsible for it in his own person, and the corporation is not presumed to have j,Mven him any authority to do such an act. Commonwealth V. Ohio &* P. R. Co.. I Gnvtt Cas. (Pa.) 329. A j>crson who d(jes an act by command of another within the scope of his authority is liable for the consequences, unless such act is one that the superior would have been justified in doinj; himself. Poiilton v. London ^ S. W. R. Co., 8 P. &> S. 616, 16 IV. R. 309, L. R. 2 Q. P. 534, 36 Z. 7. Q. P. 294, 17 L. T. .\. S. II.— CONSIDEKKD IN Bolinj;l)rokev. Swindon NewTown Local Bd., 30 L. T. 723. It seems that the aj^cnt or servant is liable as well as the muster where the injury is caused by his misfeasance, although com- mitted in the master's business; but where it is the result of non-feasance on his part he is not, as a general rule, liable. Murray V, Usher, 117 A'. Y. 542, 23 N. K. Rep. 564, 27 X. Y. S. R. 928 ; affirmiui:; 46 Hun 404, II N. Y. S. R. 789.— DiSTINCUISHEU IN Cregan 7'. Marsion, 126 N. Y. 568. After an accident to a freight train carry- ing hogs the company's manager directed certain employes to secure a safe place for the hogs, whereupon the hogs were taken to plaintifl's barn-yard and left, in his absence and without permission. On his return he did not object nor assent, but being asked to feed the hogs did so. It appeared that the hogs were diseased at the time, and the disease was immediately communicated to plaintifl's hogs, but the fact of their being diseased was not known to either the manager or to plaintift. Plaintiff sued the manager for time and expense in tending the hogs and for damages to his own on account of the communicated disease. Held (i) tliat tlie manager acted within the general scope of his authority ; (2) that it could not be said, as a matter of law, that the nian.iger had been guilty of a trespass, milking him liable on account of the disease. Hawks V. Locke, 139 Mass. 205, i A'. E, Rep. 543- An agreement was made between the plaintiffs of the one part and "The G. W. K. Co. by their agent " of the other part, by which the plaintiffs contracted to furnish a large quantity of cordwood on tlie terms specified. The agreem<;nt was signed and sealed by the plaintiffs and by defendant, styling himself "agent." No representa- tion as to authority was shown to have l)een made by defendant, but it was proved that after the company had accepted and paid f(jr a jjortioii of the wood they refused to carry out the contract, and dcfeat(;d the plaintifis in an action brought upon it by setting up the want of their corporate seal. Held, that this evidence was insufficient to sustain an action against defendant for falsely representing to the plaintiffs that he had authority to bind the company. Mc- Donald v. McMillan, 17 U. C. Q. P. 377. :i4. ConipviiKatioii— 'Wlieii entitled to coiiiiiiiNsioiiN.* — A corporation, under its common-law power to contract, may make a valid agreement to compensate an agent for obtaining subscriptions of stock. Cincinnati, I. &* C. K. Co, v. Clarkson, 7 Ind. 595. A person employed by the month or year in a particular service may have a right to compensation for services rendered on re- quest out of the sphere of such employ- ment, though there was no express agree- ment that he should be paid therefor. Cincinnati, I. &• C. A'. Co. v. Clarkson, 7 Ind. 595. The jury were instructed that the defend- ant company had authority to receive, with the consent of the directors, subscriptions to tlie capital stock, under regulations pre- scribed by the directors, in real estate and other property, and allow their agents two per cent, in stock on such subscriptions when accepted ; and that if the defendant company agreed to give plaintiff two per cent, in stock for accepted subscriptions in real estate he would be entitled to demand the per cent, for stock obtained by him, and * Employment of station agent and accepting services implies a contract to compensate him. See 24 Am. & Enc. R. Cas. 99, abstr. AGliNCV. ;w-;i7. M upon a refusal to allow it in stock he mi^';lit recover its value at the time of demand. Held, under the evidence, that the instruc- tions were substantially correct. Cincinnati, I. (S- C. R. Co. V. Clarkson, 7 Imi. 595. A town issued bonds in aid of a railroad and placed them in the hai.ds of a party for sale, or to be exchanged for stock. Afu-r some of the bonds had been disposed of the town demanded from him the proceeds of the bonds, and denied their validity and his power to dispose of them. Held, that claiming the proceeds of the bonds was a recognizing of their validity, which entitled the party to his commission upon the sales. Lyons v. Chamberlain, 89 N. Y. 578.— Ap- plying Cagwin v Hancock, 84 N. Y. 542. :I5. when not HO entitled.— A person authorized to make calls upon sub- scribers to capital stock, and to be paid a cer- tain commission on the amounts collected, is not entitled to a commission for receiving bonds from a city which had subscribed, but paid in bonds instead of money. Lakenan v. Hannibal &• St. J. A'. Co., 24 Afo. 505. Where B. was employed to secure sub- scriptions to railroad stock, his compensa- tion " to be paid as the subscriptions to its stock shall be paid in," and a large amount of stock was afterwards forfeited for non- payment, including the subscriptions pro- cured by Ei., the company not having re- mitted the forfeitures nor attempted to sell the forfeited stock, nor even instituted ac- tions to recover the subscriptions. Arid, that B. was not entitled to compensation with respect to such forfeited shares until the money was realized thereon. Maryland Agric'l College v. Haltimore &^ P. R. Co., 43 Md. 434. 14 Am. Ry. Rep. 266. The company not having remitted the forfeitures, nor having attempted to sell the forfeited stock, nor even instituted actions to recover the subscriptions, B. may have a remedy to compel the company to either sell the stock or remit the forfeitures, and institute actions to recover the balance of the subscriptions. Maryland Agric' I College V. Haltimore &> P. R. Co., 43 Md. 434. Plaintiff, as agent, negotiated for defend- ants, a railroad and mining company, a sale of ore, for which he was paid a commission. The purchasers were to have the option of ordering a certain additional quantity within the next five years. Afterward plaintiff was made general agent, to be paid a com- mission on all ore sold. During the time limited the purchasers of the lot sold exer- cised the (jptioii, and made another large; order, upon which piainiiff claimed a com- mission. Held, that the contract making him general agent only covered commissions on sales thereafter, and did not include orders afterward made under the existing option. Taylor v. Cobo'iog, P. ijr* M., R. Sf M. Co., 24 U. C. C, P. 200. ;I0. UiKiit to relnilMirHeini'iit hiiiI Indemnity.— Wiicre an agent of a railroad company purchases land in his own name upon the request and for the benefit of his principal, pays part of the consideration and gives his mortgage for the residue, with a bond in which his constituent joins, the agent is a surety for his constituent in re- spect of such bond; and equity will decree that he be paid his advance and indemnified against the bond and mortgage, on kis con- veying the title to the principal. Mohawk &^ H. R. Co. V. Costigan, 2 Sand/. Ch.(N. Y.) 306. A banking firm who had the general con- trol of the finances of a railroad, and who were largely interested in the stocks and bonds of the road, advanced large sums of money to enable the company to meet de- mands. After the lapse of some time, and while they were still carrying a considerable floating-debt against the railroad, the com- pany's revenues not being sufficient to pay the interest falling due on certain first-mort- gage bonds, the banking firm purchased with their own bonds the interest coupons due and unpaid. Held, that such purchase could not be taken as an extinguishmrnt of the coupons, and that the bank had a right to reimburse themselves, but that the coupons were not entitled to any priority over the principal and interest of others subsequently maturing. Duncan v. Mobile 6- O. R. Co., 3 Woods {U. S.) 567. III. BIQHT8, DUTIES AND LIABILITIES OF PBINCIPALS. I. In General. 37. AdniisslonM and decIaratioiiN of a^ent, wiieii bind principal. —A corporation is bound by the admissions, dec- larations and representations of its agents whenever an individual could be bound un- der like circumstances. Henderson v. San Antonio &* M. G. R. Co., 17 7Xr. 560 The statements and representations of an agent made in reference to an act which he 59 AGIiNCV, ;»K-40. is authorized to perform, and while cngan<;d in its |)«;rfoniiancc, are biiuliiiK upon tiie principal. They arc part of ilio »vt x^ciA/" Union I'tic. A'. L'o. v. Hipna, 3 Colo. App. 3'3 :t8. uiul wIk'II do not.— Tlie rule thatwiiorc an aj^ent'sacts will bind iiis prin- cipal, his declarations and admissions ac- companying such acts, and, with respect to tliu subject-matter, will also bind him, does not apply to a case where there is no elTort to fix the principal's liability by showing any act of the agent, but simply his naked dec- larations concerning a matter with which lie was entirely unconnected, and of whicii he did not appear to have any personal knowledge. lialtimore&'O. R. Co. v. Chris- tie, 5 W. Va. 325. Railway companies are not responsible for the declarations or admissions of any of their servants beyond the immediate sphere of their agency and during the transaction of the business in which they are employed. Missouri l\ic. R. Co. v. Stu/ls, 1 5 Am. &^ JCnq-. R. Cas. 97, 31 A'an. 752, 3 /'ac. Refi. 522. The directions given by a baggage-master as to the delivery of freight, while away from the baggage-room and about his own private affairs, are not binding on the com- pany. Chillicothe ex rel. v. Raynard, 80 Mo. 185.— QuoTiNC. Adams v. Hannibal & St. j. R. Co., 74 Mo. 554. A person who acts as a special policeman about a depot, whose duties are confined to keeping order about the grounds and build- ings, and in assisting passengers on and off trains, cannot bind the company by declara- tions and statements in respect to trans- portation. Wells V. Alabama G. .S. R. Co., 40 Am. &• Entf. R. Cas. 645, 67 A/iss. 24, 6 .V,.. Rep. 737. A company is not bound by representa- tions as to its accommodations made by an agent employed by it to obtain custom. A'irfy v. Great Western R. Co., 18 L. T. N. S. 658. ;M>. Notici! to at;ciit, when notice to principal.- Where the business of an incorporated company is of such a nature as to require it to be conducted through servants or agents, notice to one of its offi- cers relative to a matter in which he acted within the scope of his employment, and in the usual course of the company's business, will bind the company. Pontc/iartrain R. Co. V. Hierne, 2 La. Ann. 129. Notice to an agent of a corporation relat- ing to any matter of which he has the man- agement and control, is notice to the cor- poration, nttsbur^h. Ft. W. &^ C. R. Co. V. Rufy, 38 //<(/. 294, 10 Am. Rv. Rep. 199. Notice to an agent in transactions in which he is employed, where it becomes his duly, by virtue of his employment, to act on sucii notice, is notici^ to the principal. Denver, S. /*. Sr* /'. R. Co. v. Conivay, X Colo. I, 54 Am. Rep. 537, 5 Pae Rep. 142. Notice to an agent, to be binding upon his princi|)al, must be concerning some fact within the scope of the powers anri duties of the agent as such, Jaeksonville, T,&' K, W. R. Co. V. Peninsular L., T &* M. Co., 49 Am. &^ Kni;;. R. Cas. 603, 27 J'la. i, 9 ,So. Rep, 661. Notice to an agent, in order to bind the jjrincipal, must be in the same transaction. Blumenthals. lirainerd, 38 17. 402. If a railroad corporation occupies land after its agent has been notified by the owner that rent will be charged, it is liable in assumpsit for use and occupation. Illinois C. R. Co. V. Thompson, 116 ///. 159, 5 A^. E. Rep. 1 17. 40. — vnrioiiN illiiHtrntions oi'tlie rule. — Where a master-mechanic is charged with the duty of employing and discharging engineers and firemen, notice to such master- mechanic of a violation by engineers and firemen of the orders of the company is the same as notice to the company. Ohio &^ M. R. Co. V. Collarn, 5 Am. <5- En, A'. C ,. 554, 73 Ind. 261, 38 Am. Rep. 134 ' >•'■ Pittsburgh, Ft. W. & C. R. ( ,vuby, 38 Ind. 294; Baulcc ?'. New k & H. R. Co., 59 N. Y. 356. Noti' - to the yard-master that certa i n f ro ,'S are unblocked, one of which is pointed out to him, is notice to the company. /Ishman V. Flint &^ P. M. R. Co., 53 Am. &^ Eng, R. Cas. 80, 90 Afic/i. 567, 51 A'. W. Rep. 645. Notice to a depot agent of an assignment of wages by an employe is notice to the company, where it appears that such agent has been receiving such notice for years and transmitting them to the company under orders from his superiors. Illinois C. R. Co. V. Bryant, 70 Miss. 665, 12 .S(>. Rep. 592. The only representative or agent of a company in a certain town was charged, among other duties, with that of paying wages to employes. A certain employ6 transferred his claim to one who gave notice thereof to the agent and demanded ACll'NC V, 41, 4ti. 68 payment, but noiwillistandinn, the aK'ni paid the inom.;' f) tlic oiifjinal fiuplnu'-. Held, that notic lo such af^enl was notice to the company, makin}{ it liable to the as- signee of the claim. Memphis, K. &* C A'. Co. V. A'ot/i. <) .hn. &* Kutf. A'. Cut. 429, 28 A'dit. 565. Where it appears that a locomotive is un- safe, in order to charge the company with implied notice, it is not necessary to show that the persons having charge of it had actual knowledge of the defects, it being sufiicient if it appear that they had such re- ports of its unsafe condition as should, in the exercise of proper diligence, have put them on inquiry and knowledge of its true condition. C/i/oit^o &* A. A'. Co. v. S/iiiniioii, 43 ///. 338.— Disi iNfUJisiiKi) IN McKelvey V. Chesapeake & O. R. Co., 35 W. Va. 5 W. P. R. Co., 77 Ga. 202, 4 Atn. .St. Rep. 79. Where an employe of a railroad company IS charged with keeping the track in good condition, knowledge by him of a defect in the track is the same as knowledge by the company. Speed v. Atlantic &* P. R. Co., 2 Am. (5- F.Hfi. R. Cas. 77, 71 Mo. 303. Fort Worth «S- D. C. R. Co. v. Wilson, 3 Tex. Civ. App. 583, 24 S. W. Rep. 686. Porter v. Hannibal &^ St. J. R. Co., 2 Am. &> Eng. R. Cas. 44, 71 Mo. 66, 36 Am. Rep. 454. — Following Texas M. R. Co. v. Wliit- more, 58 Tex. 276 ; Houston & T. C. R. Co. V. Dunham, 49 Tex. 181 ; Railway Co. v. Farmer, 73 Tex. 85.— Distinguished in Corbett v. St. Louis, I. M. & S. R. Co., 26 Mo, App. 621. Where a former receiver and officers of a railroad continue in the services of pur- chasers at a foreclosure sale, the knowledge of such receiver and officers as to the con- dition of the road, obtained while they were in possession of it, will be deemed the knowledge of the subsequent purchasers. George v. Wabash W. R. Co., 40 Mo. App. 433- Where it appears that the head switchman knew of defects in a car while he is making it lip, he being intrusted with making up the train, this amounts to knowledge of the defects and notice to the company. Reed v. Hurling ton, C R. &' N. R. Co., 31 Am. &• Eng. R. Cas. 190, 72 Io7va 66. 33 A''. W. Rep. 451. The knowledge of the receiving agent of r>4 AdIiNCY, •*:< 4«. a cominon carrier as to the diaracler of goods taken for transportation is deemed to be the knowledge of his principal. Merrill V. American Exp. Co., 62 .\'. //. 514. A husband sent a man to a freijjht yard with his wife's horse anfl cart for goods, and upon entering tiie yard the man saw that the car containing the goods was out on the track in a dangerous place, but instead of having it moved, as he might have done, he led the rcrse to the car, where it was killed. Held, in an action by the wife against the company to recover the value of the horse, that the company was entitled to an instruc- tion ; that if the man knew the situation, or the danger, and voluntarily assumed the risk, plaintiff could not recover. Miners. Connecticut River R. Co., 153 Mass. 398, 26 ^V. E. Rep. 994. 43. and when not.— A carrier is not bound by its agent's knowledge or no- tice of facts outside of his duties and em- ployment as such agent. Wells v. American Exp. Co., 44 Wis. 342. The knowledge of the arbitrary mark of a consignee of goods by railroad, possessed by a former officer or agent of the railroad company, such knowledge not having been acquired by any usage, custom or course of business of the company, is not the knowl- edge of the company. A corporation has no memory except through its agents, and from the nature of the case, the notice should attach to the principal only so long as the knowledge remains present in the agency. Great Western R. Co. v. W/ieeler, 20 Mich. 419. 44. UiKlit.s and liabilities of iiiidis- cloHed priiicipal.—A person shipped cat- tle belonging to himself and to another party, but took the receipt in his own name, there being nothing to show that they did not all belong to him. The cattle were in- jured in the hands of the railroad company, and the party whose name had not been disclosed sued the railroad for his share of the loss, not making the party taking the bill of lading a co-plaintifT. The action was tried upon it-j merits, without the question of a defect of parties being raised, and judg- ment rendered for the plaintiff. Held, on appeal, that the action could be maintained. St. Louis, K. C. £- N. R. Co. v. Thacher, 13 Kan. 564. The general manager of a railroad directed a subordinate to have certain worlc done, who in turn made a contract with a third party to do the work. A memorandum of agreement was entered into reciting that the party would do the work for a certain sum, under the direction of the company's engi- neer, without mentioning for whom the work was to be done. The subordinate signed the memorandum without any as- sumption of personal liabi'ity and without anything to show for whom he acted. The work done was entirely for the benefit of the company. Held, that the memorandum was the contract of the company. Missouri, K. &> T. R. Co. V. Brown, 14 Kan. 557. 2. When Bound by Agents' Contracts. 45. Ill generul.*— Corporations are only bound by the acts of their agents where natural persons would be bound under the same conditions, i.e., when the agents act within the scope of their employment. Chicago &^ N. W. R. Co. v. James, 22 Wis. 194. Ellis V. Central Pac. R. Co., 5 Ner'. 255. Covington v. Covington <&* C. Br. Co., 10 Bush (Ky) 69. A railroad company will be bound by a contract made in its name by another as agent, when such other person has been accustomed to make similar contracts for it as agent, with its knowledge and approba- tion, which have been recognized and rati- fied ; but when the authority is denied it must V proved. Texas &* P. R. Co. v. Hamm, i Tex. App. {Civ. Cas.) 436. A regulation of the company forbidding its agents to make any contract is not bind- ing upon a stranger who has no notice of this regulation. Walker v. Wilmington, C. &< A. R. Co., 26 .S-. Car. 80, I .">. E. Rep. 366. Unless sanctioned by a superior officer, the act of a subordinate rescinding a con- tract does not bind the corporation. Alle- gheny Valley R. Co. v. Steele, i Pennyp. (Pa.) 3>2. A railroad company is not bound by the act of its local agent and engineer in er- roneously locating its right of way on a town plat, in the absence of proof that they were authorized by the company to make the plat in the manner that it was made. Han- nibal Sf St. J. R. Co. v. Green, 6i Mo. 169. 46. where agent deviates from his instriictions.t— The test of a master's responsibility for the act of his servant is, whether the act was done in the * Liability of company on contracts made by agents generally, see note, 20 L. R. A. 696. t Sec also atite, 23. I 1 I AGKNCV, 47, 48. ,)0 prosecution of the master's business; not whether it was done in accordance with the instructions of the master to the servant. When, therefore, the servant while engaged in the prosecution of the master's business deviates from his instruc- tions as to the manner of doing it, this does not relieve the master from liability for his acts. Cosgrove v. Ogden, 49 N. Y.. 255. — Followed in Huglies v. Ne\" York & N. H. R. Co., 4 J. & S. (N. Y.) 222; Atchison, T. &. S. F. R. Co. V. Randall, 38 Am. & Eng. R. Cas. 255, 40 Kan. 421, 19 Pac. Rep. 783- 47. Agreements and promises as to location of depots. — The agent of a railway company, acting under a general power to procure a right of way for the rail- road, does not have, as connected with or incidental to such a power, the right to designate and locate for his principals the depots along the line of road; and his agreement to locate a depot at a particular place, as a consideration for a deed to the company of a right of way, would not be binding on the company. Houston &* T. C. R. Co. V. McKinney, 8 Am. &> Eng. H. Cas. 723, 55 Tex. 176.— Distinguishing Hen- derson V. San Antonio & M. G. R. Co., 17 Tex. 560. The representations of the agent of a railway company made in the sale of lots at a depot town, as to the future location of the road with reference thereto, when made as inducements to the purchaser of a lot to contract therefor, become, when acted on in making the purchase, assurances and under- takings which the road is bound to comply with. Greenwood \. Pierce, 58 Tex. 130. Agents acting on behalf of persons inter- ested ill the building of a railroad were au- thorized to contract with the railroad com- pany for the construction of the road ac- cording to their discretion, and upon such terms as they, or a majority of them, might * E. R. Co. v. Green, 15 N.J. Eg. 469; affirming 12 N. /. Eg. 165.— Fol- lowed IN Martin v. New York, S. & W. R. Co., 12 Am. & Eng. R. Cas. 448, 36 N. J. Eq. 109. Plaintiff declared in assumpsit, setting out that he had brought two actions against defendants — the first for breach of an agree- ment made by them to construct a bridge or crossing, with cattle-guards, over their road, which passed through his land ; and the second for an alleged injury occasioned by them, the particulars of which were not stated ; that while both actions were pend- ing the plaintiff and defendants by their said attorney, who was then duly authorized in such behalf, made an agreement in writ- ing setting it out, of which the terms were, that plaintiff was to receive J[,\7S for all claims against the company, the company to pay costs and to make the cattle-pass and complete the crossing by the i6th of ■Si 5G AGKXCV, 4!» .-»1. July tlien next ; the suits to be witlidruwii, the agreement to be carried out by M. (plain- tiff's attorney) on plaintiff's account, and K. on behalf of the company, as soon as the court was over (this was signed by K. iov the company). That in consideration of the premises, and that the plaintiff at defend- ants' request would perform said agreement on his part, defendants promised to perform on their parts; that confiding in such prom- ise he withdrew the actions and did all that was to be done on his part, but that, although defendants in part-performance paid £75 and costs, yet they did not make the cattle-pass or complete the crossing. HM. on demurrer to the declaration, that it must be assumed by the averments that R. had been authorized under the defend- ant's corporate seal to make the agreement ; but that no promise of the corporation, such as was declared upon, could be implied therefrom ; that the proper construction of llie agreement was, that it required a proper legal covenant by the company to bind them to the terms which they had authorized him to accept, and that they could not be charged as liable through him on a parol agreement to do that which they could only liave bound themselves under seal to perform. Dorany. Great IVeslern R. Co.. 14 U. C. Q. B. 403 — — Distinguishing Favielli/. Eastern Coun- ties R. Co.. 2 Exch. 344. Reviewing Jackson v. North Wales R. Co.. 18 L. J. Ch. 91. 13 Jur. 69. 49. Construction contracts.— Plain- tiff entered into negotiations with the agent of a railroad company, looking toward the employment of some person of means to build a certain part of defendant's road. Subsequently an arrangement was made by which plaintiff, the agent and a third party took the contract on certain conditions, the profits of the enterprise to be divided in specified proportions between the three. Held, that plaintiff could not recover com- pensation for services which led to the mak- ing of the contract. Van ]'alkenburg v. Thomas^'illi-, T. &' G. A\ Co . 22 JV. V. S. A\ 379, 52 //w« 610, 4 N. y. Sitfifi. 782. 50. for supplies to |>or.soiis coiistriictiui; road. — An inspector who superintends the erection of a railroad bridge may contract for stone and sand without the contract being under seal. But apart from this, where the company adopts the acts of the inspector, and receives the material, it must pay for them. O'Brien v. Cn;/// Va/lev A'. Co., 25 T. f. C. P. 275- Plaintiffs sued to recover for supplies furnished to parties engaged in the con- struction of defendant's road, upon the claim thai the goods were delivered upon orders given by defendant's agent, and upon its credit. Held, that the question of the au- thority conferred upon the alleged agent was one of fact for the jury. Hirschinann V. Iron Range C. B. R. Co., 28 Am. &> Enjr. R. Cas. 61, 91 Mo. 152. 3 S. IV. Rep. 486. " A statement made by a depot agent to a shipper of perishable goods as to the time that it would require for transportation is a part of the contract of shipment when acted on, and is binding on thecompany. Bhdgett \. Abbot, 72 Wis. 516, 7 Am. St. Rep. 873, 40 M VV. Rep. 491. 53. over connecting lines.— In the absence of express authority to a local agent, or an established custom, a company is not bound by a contract of such agent agreeing to ship goods beyond the end of its line. Wait v. Albany &^ S. R. Co., 5 Lans. {N. Y.) 475. Approving Burroughs -,i. Norwich >V W. K. C.'n.. ujo Mass. 28. — DisriNGlMSHiNi; Wilson 7'. Great North- ern & B. R. Co., 18 Eng. L. & Eq. 557, note ; Schroeder v. Hudson River R. Co., 5 Duer (N. Y.) 55- Where the freight agent of a railroad has full a'lthority to make arrangements as to the time and place of the delivery of freights, an agreement by him to ship by a line of boats binds the railroad company. Mic/ii- gan S. &^ A'. /. R. Co. v. Day, 20 ///. 375. The agent of a railroad company made a verbal contract with a shipper of fruit for a through shipment without a change of cars, but in issuing the bill of lading the shipment was limited to the initial carrier's line. In an action to reca 196, 14 A'. W. Rep. 249. 58 Ac.KNCV, r.«- N. K. R. Co., 27 A'. Y. Siipf). 611, 76 Iliin 23. Where a shipper employs an agent to de- liver cattle l(j the comjjany he is bound by such agent's signature to the consignment note, k'irhy v. Great Western R. Co., 18 L. T. N. S. 658. 57. Agreeiiiciits to store goods.— The local agent of a railroad company in charge of its general business has prima faeie power to bind the company by con- tracts for the storage of goods, but cannot contract against the established rules of the company, of which the other party has notice. Ans^/e v. Afississippi &' M. R. Co., 18 hrwa 555. A railway company is not liable for loss of goods where they have been delivered to the owner and receipted for, and he then makes an arrangement with the baggage- man to leave them for a while in the ware- house. A baggageman, having no authority to make such arrangement, is not the agent of the company in doing so. Mulligan v. Northern J'.ie. R. Co. (Dal:.), 27 Am &* Eng. R. Cos. 33. 29 A'. IV. Rep. 659. 5H. Waiver of limitation of lia- bility. — Where an express company re- ceives goods to be carried, and gives a receipt containing conditions or limitations of the liability of the company, the agent of the company at the place of shipment may afterward bind the company by a waiver of the conditions. Vroman v. American M. U. Exp. Co., 5 r. «^ C. (A'. Y.) 22, 2 J/toi 512. 59. Promise to pay for lost goods. — Where goods are lost, and the consignee calls at the railroad auditor's otlice and finds a gi.Mitleman in charge who proved to be the clerk, and who promised that the goods should be paid for, the consignee not know- ing that he was not the auditor, such promise will not bind the company, in the absence of anything to show that the clerk had authority to bind the company by such a contract. Gul/, C. 6^ S. F. R. Co. v. Ja- cobs, t, rex.Civ.App.\Zl,ilS. W. Rep. 145. UO. Compromise of claim for iiijiiry to live stock.— Where the evidence is sufficient to prove that the defendant's gen- eral freight agent came to the place where a wreck had occurred, by the authority of and acting for the defendant, for the pur- pose of looking after the injured property and adjusting claims for damages ; that he knew the number of horses that were shipped in the car ; and that he took charge of the injured horses, ordered them cared for and treated — an agreement by which the company agreed to pay the plaintiff a sum in full for a mare injured in the wreck, the mare thereafter to be the company's property, is within the scope of the author- ity of the general freight agent, and is bind- ing on the company. Chicago &* E. I, R. Co. v, Katsenbach, 38 Am. (S>» Eng. R, Cas. 375, 118 /« T. R. Co. v. Hoover, Si Ark. yjT, \l S. W. Rep. 1092. A physician in the employ of a railroad company, who is authorized to buy medi- cines on the credit of the company, can- not bind the company by a contract to pay for board, lodging and other attentions to a person injured by the road. Mayberry V. Chicat^o, R. I. &• P. R. Co., 11 Am. &> Eng. R. Cits. 29. 75 Mo. 492.— Distinguished IN Terre Haute & I. R. Co. 7>. McMurray. 98 Ind. 358. Reviewed in Louisville, E. & St. L. R. Co. V. McVay. 98 Ind. 391. Where a laborer on a railroad is injured while in the service of the railroad com- pany, a telegram from the general superin- tendent directing one of his subordinates to employ a physician and do all he can to save the injured limb and make the sufferer comfortable, is authority for a contract bind- ing the company to pay for the board and care of the injured party while recovering from the injury. Atchison &* N. R. Co. v. Reecher, i Am. &* Eng. R. Cas. 343, 24 /Can. 228. — Reviewed in Terre Haute & I. R. Co. V. McMurray. 98 In«l». ters connected will) tlic use of its road, cars of all kinds, an. AV/. 157. 3. Liability for Torts of Agents, a. General Rules. 71. Rule of liability strictly ap- plieil to railroad coiiipaiiies.— Upon a principle of public policy and public neces- sity, the rules of law which fix the liability of the principal for the torts of his agent are applied with strictness to common car- riers, and especially to those using forces for propulsion which are calculated to en- danger life or property. Ne^v Orleans, J. » G. .V. R. Co. V. Allbritton, 38 .J/m. 242.— D I. s- TINGUISHING McCoy V. McKowen, 26 Miss. 487 ; McManus v. Cricket, i East 106. Companies are liable for the non-feasance and misconduct of their employes, and such liability is not afTectcd by the good or bad motives by which such employes are actu- ated. Blackstockv. New YorkSf^ K. R.Co., 20 N. Y. 48; affirming 1 Hos^v. 77. 72. Corporation liable il' natural pei'ison would be.— A corporation is lia- l)le to the same extent and under the same circumstances as a natural person for the consequences of its wrongful acts, and for the acts and negligence of its agents while engaged as such, and will be held to respond in a civil action at the suit of an injured party for every grade and description of forcible, malicious or negligent tort it com- mits, however foreign 10 iis nature or be- yond its granted powers the wrongful act may be. A'w York &* N. H. R. Co. v. Schuyler, 34 A^ Y. 30 ; modifying 38 Barb. 534._QuoTlNG Ranger v. Great Western R. Co., 5 H. of L. Cas. 86 ; Nolton v. West- ern R. Co., 15 N. Y. 444. Miller v. Burling- ton &> M. R. Co., 8 Neb. 219. Brokaw v. New Jersey R. &• T. Co., yiN.J. L. 328.— Quoting Sharrod v. London & N. W. R. Co., 4 Exch. 585. First Baptist Church v. Schenectady &^ T. R. Co., 5 Barb. (A'. K) 79. Hughes V. Cincinnati &* S. R. Co. 15 Am. « E. R. Co., 23 A^. /. L. 360.— Quoted in Denver & R. G. R. Co. V. Harris, 3 N. Mex. 109; Quinn v. South Carolina R. Co., 37 Am. & ICng. R. Cas. 166, 29 So. Car. 381, 7 S. E. Ucp. 614, I L. R. A. 682. I 6« AGENCY, 7;J, 74. ^ 7;i. UnhU' If not Is within hcoim' of cnipioymeiit.*— A master is liable for the wron^rful act of his servant, to the injury of a third person, where the servant is engaged at the liniL- in doing his master's business, and is acting within the general scope of iiis authority, although he is reckless in the per- formance of his duty, or through lack of judgment or discretion, or from infirmity of temper, t)r under the influence of passion aroused by the circumstances, goes beyond the strict line of his duty, and inflicts un- necessary and unjusiifiablc injury. Co/if/i V. Dn' Dock, E. /.'. &- />'. A'. Co., 69 N. V. 170; offirmini; 8/ ^^ X. 368.— FoLLinviXG Rounds V. Delaware. L. & W. R. Co.. 64 N. Y. 129. Giori^iii Pac. K. Co. v. PropsI, 83 Alii. 5183 So. Rep. 764. Western &• A. R. Co. v. Turner, 28 Am. »S« En;^. R. Can. 455. 72 Cm. 292, 53 Am. AV/. 842. Johnson v. Chi- cago, R. I. ^ P. R. Co., 8 Am. &> Eng. R. Cas. 206, 58 /(m>a 348, 12 A'. //'. Rep. 329. Aycrigg v. New York is^ E. R. Co., 30 A'. /. Z.. 460.— RKCoNcii.K.n IN Pittsburgh, C.& St. L. R. Co. V. Kirk, 102 Ind. 399, 52 Am. Rep. 675. Davis v. Chautauqua Lake S. S. A., 2 N. V. S. R. 365, 41 Hun 638. Hussey V. Norfolk S. R. Co., 98 A'. Car. 34, 2 Am. St. Rep. 312, 3 S. E. Rep. 923.— Following Gruber 7'. Washington & J. R. Co., 92 N. Car. I ; Philadelphia. VV. & B. R. Co. v. yuigley. 21 How. (U. S.) 202. Not fol- lowing Orr 7/. Bank of U. S.. I Ohii), 36; Gillett V. Missouri V. R. Co., 55 Mo. 315. Quoting Denver & C. R. Co. v. Harris, 122 U. S. 597. Jones s. Western Vl. R. Co., 27 Vt. 399. Rayley v. Manchester, S. &* L. R. Co.. 28 /.. T.N. S. 366, L. R. 8, C. P. 148. 42 /,. /. C. P. 78 ; affirming L. R. 7. C. P. 415, 41 L.J. C. P. 278.— CoNSIDKRF.n IN Bollingbrokc v. Swindon N. T. L. Board, 30 L. T. 723. Erb v. Great Western R. Co., 3 Ont. App. 446; affirming 42 U. C. (J. B. 90,— Reviewing Oliver v. Great Western R.Co., 28 U. C. C. P. 143; McLean v. Buffalo & L. H. R. Co, 24 U. C. Q. B. 270. A master is responsible for the illegal acts of commission or omission, short of wilful wrong, done or suffered by his servant or agent, in the prosecution of the business entrusted to him by his principal, whereby * Liability of master for torts of servants while a( ting within scope of employment, see 53 Am. & Eno. R, Cas. 70, ahstr. See also notes, 8 Am. Rep. 316, ip l,i. 226, 60 /,/. 880, 6 L. R. A. 242, 12 /■. IV. AV/. 905. yuoriNc; Snyder?'. Hannibal & St. J. H. Co., 60 Mo. 419. l-'iirber v. Afissouri I'ac. R. Co., 32 Mo. Apfi. 378. Appi.iku in Snider v. Crawford, 47 Mo. App. 8. 70. illustrations— (I) Injuries to children.— h. company will not be liable for injuries to a child received while attempting to get on one of its cars, at the invitation of an employe, in the absence of anything to show autiiority in the employe to permit persons to ride on the car; and when the invitation and riding would not be in fur- therance of the interests of the company, nor connected in any way with the servant's duties. Snyder v. Hannibal &» St. J. A'. Co.. 60 .\fo. 413.- Distinguishing Lynch 7/. Nurdin, 1 Q. H. 29. Quoting Flower v. Pennsylvania R. Co., 69 Pa. St. 210. Rk- viewing Eaton 7>. Delaware, L. & W. R. Co., 13 Am. Law Reg. 665. Reviewing, quoting and distinguishing Wilton 7-. Middlesex R. Co.. 107 Mass. 108.— Dis- tinguished IN Sloan 7>. Central I. R. Co., II Am. & Eng. R. Cas. 145, 62 Iowa 728. Reviewed in Little Rock & Ft. S. R. Co. 7'. Miles, 13 Am. & Eng. R. Cas. 10, 40 Ark. 298, 48 Am. Rep. 10. Where a servant of a radroad company, who is in charge of one of its gravel trains, advises a boy of tender years, whom he has invited to ride upon the train, and who is sitting beside the track with the servant, to get upon an approaching train belonging to the same company, which is to pass the home of the boy, to which he has expressed a desire to return, the company is not liable for injuries to the boy consequent upon his following said advice, the same being out- side of the servant's employment, and in no way connected with or relating to the busi- ness in which he is at the time engaged. A'eatini; v. Michigan C. R. Co., 97 Mich. 1 54. A conductor and others in charge of a train slopped it and pursued a boy to his father's house with pistols in hand and took him aboard the train and carried tiim to the next station under the pretence of protect- ing the train. Held, that these wrongful acts were not within the range of the em- ployment of the conductor and tliose acting with him, and consequently the company was not liable, in the absence of anything to show that it commanded, authorized or ratified them. Gilliam v. South, &* N, Ala. R. Co., 15 Ant. &• Eng. R. Cas. 138, 70 Ala. 268.— Not following Foster v. Essex Hank, 17 Mass. 479; Illinois C. R. Co. v. Downey, 18 III. 259; Wesson v. Seaboard & R. R. Co.. 4 Jones' (N. Car.) 379; Thames Steamboat Co. v. Housatonic R. Co., 24 Conn. 40; DeCampz/. Mississippi & M. R. Co.. 12 Iowa 348. Reviewed in Cameron V. Pacific Exp. Co., 48 Mo. App. 99. A colored boy was found in an express car. whereupon the express messenger called to a baggage-master, and the two. out of a disposition to have fun at the expense of the boy, so frightened him that he jumped from the train and received fatal injuries. Held, that the company was not liable for the act of the baggage-master in quitting his apart- ment and going into the express car to par- ticipate in the conduct which led to the in- jury, unless he was about its business. Louisville, N. O. (5>» T, R. Co. v. Douglass, 69 Miss. 723, 1 1 So. Rep. 933. A fireman was put in charge of an engine and certain cars to run to a water-station, the duty usually devolving upon the engi- neer. At the station he invited a boy to climb on the tender and turn on the water, and in doing so was killed by other cars running against the tender. Held, it not being within the scope of the employment of either an engineer or fireman to ask per- sons on the engine for such purposes, that the company was not liable for the killing. Flower v, Pennsylvania R. Co., 69 Pa. St. 210.— Distinguished in Sloan v. Central Iowa R. Co., II Am. & Eng. R. Cas. 145, 62 Iowa 728. Followed in Everhart v. Terre Haute & I. R. Co., 4 Am. & Eng. R. Cas. 599, 78 Ind. 292. 41 Am. Rep. 567. Quoted in Little Rock & Ft. S. R. Co. v. Miles. 40 Ark. 298. 13 Am. & Eng. R. Cas. 10,48 Am. Rep. 10; Atchison, T. & S. F. R. Co. V, Lindley,4i Am.& Eng. R. Cas, 72. 42 Kan. 714, 6 L. R. A. 646, 41 Alb. L. J. 92. 7 R. R. & Corp. L. J. 133. 22 Pac. Rep. 703; Darwin v. Charlotte C. & A. R. Co., I AGENCY, 77, 78. 65 23 So. Car. 531, 55 Am. Rep. 32. Reviewed AND (QUOTED IN Siiycicr T. Hannibal & St. J. K. Co., 60 Mo. 413; Wischam v. Rick- ards, 136 Pa. St. 109; Cotter v. Frankford &S. R. Co., 15 Phila. (Pa.) 255. (2) Of/iif /'//«.v//v»//V)«.v.— A company can- not be held lialilc for llic acts of its ayents in iisinp a culvert near plainiilT's residence for tlie purposes of a |>rivy and tlicrcl)y creating a nuisance. Hopkins v. W'lstern I'ac. A'. Co., 50 Cat. 190, 12 Am. Ry. Rep. 176. A company is nut liable (or an injury to a |)crson Itit by a bundle which a train porter threw out of a car window, where such bundle is the personal property of the porter. Walton v. Mw York C. S. Cat Co., 139 Mass. 556, 2 A'. E. Rep. loi. An ai,'ent of a railroad company, having and exercising supervision over the lands of lie company and in charge of such lands, making leases, collecting rents and stump- age, and negotiating sales of the lands for the company, who invokes the criminal law i)y bringing a charge of grand larceny against a party for spoliation of the timber-lands of the company, is not in so doing acting within the scope of his agency or in the course of his employment, and the com- pany is therefore not to be held responsible for such actions done maliciously by him. Ptcssky v. Mobile &^ G. R. Co., \\ Am. &> lut),^. R. Cas. 227, 4 Woods (U. S.) 569, 15 /•W. Rep. 199,— Quoted in Gulf.C. and S. F. R. Co. V. James, 73 Tex. 12, 10 S. W. Rep. 744- Where a company furnishes hand-cars for the exclusive use of its employes, who, without the knowledge of the company, permit plaintiff, who is not connected with the company's business, to ride thereon, held, in an action to recover for an injury received while so riding, that plaintiff's ignorance of the fact that the cars were for the exclusive use of employes will not make the company liable; neither will it be bound by the acts of its employes in permitting him to ride, as such acts were not within the apparent scope of their authority. Gulf, C. &* S. F. R. Co. V. Dawkins, 77 Tex. 228, 13.S'. W. Rep. 982. Plaintifl was in the employment of one C, a contractor with the defendants for build- ing fences along their line. C, as a matter of convenience to him, was permitted by defendants to carry his tools on their trains, and was thus taking two crowbars from H. to a point on the line where his men were 1 D. R. I) —5. at work. As the train passed the spot C. dropped one bar out, and the baggage- master pitched out the other, which struck and injured the plaintifl. C. swore that it was his b;isiness to put the barson and take them of! the car, the baggageman having nothing to do with him nor any right to meddle with his tools, nor did he ask him to put the bar out. Held, that defendants were not responsible for the injury, for the bag- gageman was not acting as their servant or in pursuance of his employment. Cunning- ham v. Grand Trunk R. Co., 31 U.C. Q. B. 350.— Quoting Murray v. Currie, L. R. 6, C. P. 24. 77. eoiitrnry doctrine.— Because of the absolute necessity for more stringent rules for the protection of life and property against the perils of the steam-engine with its capacity for mischief, the common-law rule that the master is not liable for the tortious acts of his servant committed with- out the scope of his employment, does not apply to railroad companies. Nashville &* C. R. Co. v. Starnes, 9 Heisk. (Tenn.) 52. Railroad corporations only act through agents, and having placed in their hands such deadly instruments, the law demands of them the utmost caution in the selection of agents, and holds them strictly account- able. Xash7iille &* C. R. Co. v. Starnes, 9 Heisk. {Tenn.) 52. 19 Am. Ry. Rep. 280. 78. Vnauthorizc{naf{c- master or w.ireliouseman has no authority to allow the ^'oods to remain in the warelioiisc, and the company is not liat)le to the owner in case they are de- stroved. Miil/i'gtvi V. iXorthcrn Pac. R. Co. (Ihik), 29 A', iv. /iV/. 659. Defendants agreed with a contractor for the cr»nstruction of their railway, to furnish a construction train to be used in carrying materials for ballasting and layin){ the track ; defendants to provide the conductor, engineer and hreman; the contractor fur- nishing the brakeman. After work was over for the day, and the train was re- turning; to O., where plainlilT, one of the contractors workmen, lived, pluintifT, with the permission of the conductor, but with- out the authority of the defendants, got on the train. Throuf^h the negligence of the person in charge of tlic train plaintifT was injured. Hvlii, that defendants were not liable, f^ S. /•'. R. Co. V. Moore, 69 Tex. i57,6.S'. II'. AV^ 631.— Following Hays ». Houston & G, N. R. Co., 46 Tex. 272. Where an employ^ commits a crime, or his act is malicious or wilful, the law pre- sumes that the company did not authorize or sanction the act, but this is only a pre- sumption and may be rebutted. Gulf, C. &* S. F. R. Co. V. Rteil, 48 //;//. nil/i V. Ttniplf, 11 ///. App. 39. Cobb V. Columbia «&- G. K. Co., 37 .V. Car. 194. A corporation is liable for the wilful acts and torts of its a^ctiis committed within tlie general scope of their employment, as well as acts of nct;ligence, although the particular acts have not been previously authorized or subsequently ratified. Indianapolis, P. &* C. R. Co. V. Anthony, 43 Ind. 183.— Dis- TiNCUl.SHlNd Evansvillc & C. R. Co. v. Baum, 26 Ind. 70. QuoTiNi; Jcffersonville R. Co. V. Rogers, 38 Ind. 1 16. Terre Haute &* I. A\ Co. \. Jackson, 6 Atn. &* J'-ng. K. Cas 178, 81 /«(/. 19. Qiiij^^liy V. Central Pac. A'. Co., II AVv. 350.— Not Folluwino Hagan 7'. Providence & W. R. Co., 3 R. 1.88.— Ped- dinif V. SoutA Carolina A'. Co., 3 S. Car. i. \Vhcre the servants of a railroad, while in the discharge of their duties, pervert the appliatices of the company to wanton and malicious purposes to the injury of others, the company is liable for such injuries. Chicago, B. &' Q. P. Co. v. Dickson, 63 ///. 151,7 Am, Ky. Pip. 45. — Folldwinc; Toledo, W. & VV. R. Co. V. Harmon, 47 III. 298. The agents and servants of a railroad com- pany while engaged in running a train of cars are in the line of their duty, and for their acts wilfully done the company is lia- ble. Terrc Haute &* I. P. Co. v. Graham, 46 Ind. 239, 6 Am. Py. Pep. 358. 81. Hcope and extent of the rule.— A railroad corporation is not liable for a trespass committed by its servants in wilfully expelling a passenger, where in doing so they exceed the authority given them under certain regulations of the com- pany. Hibbard v. New York &* E. P. Co., \% N. Y. 455.— Following Wright v. Wil- cox, 19 Wend. (N. Y.) 343.— APPROVKD IN Cox V. Keahey, 36 Ala. 340. Criticised in Isaairs 7'. Third Ave. R. Co., 47 N. Y. 122. DlSTlNOUi.sHKD IN Higgins V. Watervliei. T. & R. Co.. 46 N. Y. 23. Not Followed IN Weed V. Panama R. Co.. 17 N. Y. 362. Corporations are not bound by the wanton and wilful trespasses of thciragents. ^oheld, where a female passenger requested the con- ductor to stop a street-car and let her off, but on the contrary he violently threw her from the car while in motion with such force as to seriously injure her. Isiiacs v. Third Ave. P. Co., 47 A'. >'. 122.— Ckiti- CI.SING Ilibbard v. New York & E. R. Co,, 15 N. Y. 455. Following Mali 7'. Lord, 39 N. Y. 381. Reviewing Vanderbiii 7'. Rich- mond Turnpike Co., 2 N. Y. 479.— AlM'i.iEn IN Mars f, Delaware k II. C. Co., 54 Ilun (N. Y.)62S. DisTiNCULSHEi) IN Cohen v. Dry Dock, E. B. & B. R. Co., 8 J. & S. (N. Y.)368; Shea 7'. Sixth Ave. R. Co., 62 N. Y. 180. Followed in Hughes v. New York & N. H. R. Co., 4 J. & S. (N. Y.) 222. Limited in Stewart v. Brooklyn & C. T. R. Co., 90 N. Y. 588, 43 Am. Rep. 185. Not Followed in Carter 7'. Louisville, N. A. & C. R. Co.. 98 Ind. 552; HolTman v. New York C. & H. R. R. Co., 12 J.&S. (N. Y.) i. The owners of a steamboat ate not liable for damages resulting from a collision caused by the wilful act of their servants and agents in charge of the boat. Cox V. Keahey, ^6 Ala. 340.— Ai'PRoviNc; McManus V. Crickelt, i East 106; Hibbard t>. New York & E. R. Co., 15 N. Y. 455. Distin- guishing Philadelphia & R. R. Co. 7'. Derby, 14 How. (U. S.) 468 ; Vicksburg & J. R. Co. V. Patton, 31 Miss. 156; Cleveland, C. & C. R. Co. 7'. Keary, 3 Ohio St. 201 ; Henderson, San Antonio & M. G. v. R. Co., 17 Tex. 560; Hegeman v. Western R. Co.. 16 Barb. (N. Y.) 353. Following Blackburn v. Baker, i Ala. 173; Lindsay v. GritHn, 22 Ala. 629; Walker v. Boiling, 22 Ala. 294; Kirksey v. Jones, 7 Ala. 622. A railroad company is not liable for the act of an engineer in purposely and wantonly backing a train toward a street-car for the purpose of frightening the passengers therein, whereby a passenger, believing him- self in imminent danger, is injured by jump- ing to avoid a collision, though the engineer did not mean to strike the car. Stephenson v. Southern Pac. P. Co., 93 Cal. 558, 29 Pac. Pep. 234. Plaintiff, while travelling in a buggy along a street in the city of New York, was stopped by a blockade of vehicles just as he had crossed defendant's track. The rear of his buggy was so near the track that a car could not pass without hitting it. A car came up, the driver of which, after waiting I 08 ACiENCV, H2. a moment or two. ordered plaintiff to "get ort tlie track." Plaintitl was unable to move either way. and so noiitiid the driver, who replied wiih an oath ili.u he v.as late, and that if plainlill did not nvi o(T he would put iiim off. and immediately thereafter drove on. slriki:!Rand upseitiuK plaintiff's buggy and injuring,' him. In an action to recover damages. /iM, that the evidence did not authorize a linding as mailer of l.iw, that the act of the driver was with a view to in- jure plaintiff, and not with a view to his master's service; but that this question was one of fact, and a dismissal of the complaint on trial was error. Co/irn v. /hj />iu/:. A'. />'. v;~ />'. A'. C'f'.. 69 .v. )'. 170. 1 8 ^l//i. Ay. I\fp. 109; itffiy tiling iSy. e^ .s'. 368. 82. il,«i limits and «'\c«>|»tiniiM.— When a railroad company is sued for a delay ill carrying goods it cannot e.xcusc the delay by showing that it was the resi'lt of a wilful act on the part of one of its conductors. n\ed V. Pamima A'. t\>., 17 iV. 1'. 362; ajfirming 5 Diur 193.— DiSTiNUUisHiNt; Kichmond Turnpike Co. v. Vanderbilt, i Hill (N. Y.) 480. Nor Following Hibbard V. New York & E. R. Co.. 15 N. Y. 455.— AlM'RovKi) IN Perkins v. Mi.ssouri, K. & T. R. Co., 55 Mo. 201 ; Milwaukee & M. R. Co. V. Finney. 10 Wis. 388. Distinguished IN Geismer %>. Lake Shore & M. S. R. Co., 26 Am. »% Eng. R. Cas. 287. 102 N. .Y. 563, 7 N. K. Rep. 828. 2 N. Y. S. R. 514; rci'crsiiig 34 Uun 50 : Gulf. C. & S. F. R. Co. v. Levi. 42 Am. & Eng. R. Cas. 439. 76 Te.x, 337. 13 S. W. Rep. 191. 8 L. R. A. 323; reversed in 40 Am. &* /fz/.c. A". Gi.t. 1 15. 12 .S". /F. AV/>.677. — Foi.LOWKi) IN Read v. St. Louis. K. C. & N. R. Co., 60 Mo. 199 ; Blackstock v. New York & E. R. Co.. 20 N. Y. 48 ; Meyer v. Second Ave. R. Co., 8 Bosw. (N. Y.) 305. Revikweo IN Goddard v. (Jrand Trunk R. Co.. 57 Me. 202; Pittsburg. C. .St St. L. R. Co. v. Shields. 47 Ohio St. 3S7 ; Palmer 7>. Charlotte, C. & A. R. Co., 3 S. Car. 580. While the master is not responsible for the wilful wrong of the servant, not done w .h a view to the master's service, or for the purpose of executing his orders, if the servant is authorized to use force against another when necessary in executing his master's orders, and if. while executing such orders, through misjudgment or violence of temper the servant uses more force than is necessary, the master is liable. Koiiiuis v. 'hhiuwe. I.. C'- W A'. Co., O4 .\'. 1'. \^^) 31 Am. Rip. 597 , lijliiming 3 Uun 329, 5 7'. &*C. 475.— Following Higgins v. Water- vliet Turnpike Co., 46 N. Y. 23. Reviewing McManus ?-. Crickett, 1 East 106. — Al'i'LlEU IN Mars 7'. Delaware^ ll.C.Co., 54 Hun (N. Y.) 625 ; Lang v. New York, L. E. & W. R. Co.. 22 N. Y. S. R. no. Followed in (■(ilun V. Drv Do. k. E. I?, it l{. R. Co.. 69 N. V. 170; Muri)liy .'. Central Park, N. & E. R. R. Co., 16 J. & S. (N. Y.) 96. Reviewed in Carter v. Louisville, N. A.&C. R. Co., 98 Ind. 552 ; Molloy v. New York C. & H. R. R. Co., 10 Daly (N. Y.) 453. If a servant is authorized to use force against another when necessary in executing his Piaster's orders the mastcrcommits it to him to deci M. A'. Co. v. Fin- ney, 10 Wis. 388. — Approving Weed v. F'anama R. Co., 17 N. Y. 362.— Reviewf^) IN Goddard v. Grand Trunk R. Co., 57 Me. 202; Winncgar v. Central Pass. R. Co.. 34 Am. & Eng. R. Cas. 462, 85 Ky. 547. 4 S. W. Rep. 237. An authority given by the board of direc- tor;; will not. in all cases, be the authority of the corporation. To fix the liability of a il-i AGKNCY, H;J, H4. 60 lui |»i)iiii ion lor ilic lot lions acl of one of its emi)loyes, done in oljodicnce to the coni- numds of its oHiccrs, ilic act must be con- nected with tiic transaction of the business for whicii the company was incorporated. A'rohiTV V. A't'7ti Jcr:ny R. &» T. Co., yi N. J. I.. 328.— yuoriNd KailwayCo. 7^ Brown, ICxcli. 325; Green f. London Omnibus Co.,7 C. H. N. S. 301 ; Philadelphia. VV. & W. K. Co. ?'. yuiglcy, 21 How. (U. S.) 202. — (JuoiKi) i.\ Central R. & B. Co. v. Smith, 76 Ala. 572. If the trespass was committed by the ajj;eiit of the company, wilfully, or of his own malice, under color of discharfring the duties of his employment, or if he has de- parted beyond the line of his duty to com- mit a lrcs|>ass, the company will not be lia- l)li'. But if the act of the agent was au- thorized by the rules and regulations of the i:i)m|)any, or was necessary to accomplish the i)urposes of his employment, the coni- l)any is answerable, even for the unneces- sary violence of the agent. Brokaw v. AWt/ Jnsfy R. 6- T. Co., 32 N. /. L. 328.— Rk- VII WED i.\ Vance v. Erie R. Co., 32 N. J. I- 334- H:1. NcKlitfciit acts— General rule.* - kailroad companies are liable for theneg- litjcnt acts of its employes or agents wherever individuals would be liable under the same circumstances. Kiitg v. Ohio &* M. R. Co., S .l//t. &^ F.Hi^. R. C .S'/. 201.— Quoting Marshall 7^ Balti- more & O, R. Co., 16 How. (U. S.) 327. The general rule of respondeat superior charges the master with liability for the ser- vant's negligence in the master's business causing injury to third persons, and the acts of the servant may, in general, l)e treated as the acts of the master. Murray v. Usher, 117 A'. Y. 542. 23 A'. E. Rep. 564, 27 A^. Y. S. R. 928 ; ajDirming 46 Huti 404, 1 1 A'. Y. .S". A". 789. Kvansrille &• C. R. Co. v. Ihium, 26 Ind. JO. Smith v. Memphis &* A. C. Packet Co. ( Tenn.) i S. IV. Rep. 104. //ous- toii &^ T. C. R. Co. V. Gorbett, 49 Tex. 573. As cori)()rations can only act through agent.;, where a complaint charges negli- gence against the company, it is competent to admit evidence showing negligence on * Liability oi master to third persons for in- juries Lauscd by negligence of servant. See note. 8 L. R. A. 4O4. the part of its agents who are charged wiili the duty of performing the act complained of. St. Louis &* S. F. R. Co. v. George, 85 Te.x. 150, 19.S'. IV. Rep. 1036. Houston &• /'. C. R. Co. V. Rand, 9 .'////. &^ Fng. R. Cas. 399. The negligence of the agent, of whatsoever grade, as to matters within the scope of his employment with reference to passengers, is the negligence of the corporation. Gul/,C. &• S. /•'. A'. Co. V. McGowan, 26 Am. &* Fng. R. Cas. 274, 65 7V.r. 640, The duty of observing the greatest care in the custody and use of dangerous agencies cannot be shifted by a master to his servants, so as to exonerate him from the negligence of a servant in the use and custody of them. Pittsburg. C. l^' St. L. R. Co. v. Shields, 44 Am. &r' I'lng. R. Cas. 647, 47 Ohio St. 387, 8 L. R. A. 464, 24 A'. F. Rep. 658. 84. its seope and e.xteiit.— Where the business of two roatls at a junc- tion is intrusted to one agent, the fact that the agent is employed and paid by one road will not relieve the other from liability for damages that may result from his negli- geiicc. Taylor v. Western Pac. R. Co., 45 Cal. 323. The Iowa Code, § 1307, makes railway corporations liable for all damages resulting from the negligence of their employes or agent«. npd under the statute no special con- tract kv' '. exempt the company from liability, and liu- statute applies both to passengers and servants of such corporations. Roses, Des Moines, Valley R. Co., 39 hrwa 246. A railroad company is liable, under § 1307, for the gross negligence of its employes, re- sulting in an injury to a person riding upon its cars, though without right; as, in this case, one riding upon the non-transferable commutation ticket of another. Way v. Chicago, R. I. &* I'. R. Co., 34 Am. &^ Fng. R. Cas. 286, 73 Io7va 463, 35 N. W. Rep., 525- A railroad company is liable for the in- juries caused by a fireman who was tempo- rarily left in charge of an engine with in- structions from the engineer to watch it, in negligently blowing off steam while so in charge. Andnics v. Mason City &> Ft. />. A'. Co., 77 /o7t/a 669. 42 .V. //'. Rep. 513. It is a part of the course of employment of a brakeman to invite and assist pas- sengers on and off cars, and it being so, the company will be liable for his negligen'. or improper act while so engaged. Dreii' v. Sixth Ave, R. Co., 26 A'. Y. 49.- Followed 74> AdKNCV, «."., »«. IN Drew V. Sixth Ave. K Co.. i Abb. App. Uet:. (N. Y.) 556; SiiiiDiiiti 7'. New York, L. E. & W. K. Co., 36 Hun (N. Y.) 214. Wiicn; dangerous ancncies are enlriisted to a servant, ilie pn)per custody, as well as the use of tliein. l>ecoMies a part of the ser- vant's employinuni ljy the master, and his ne^linence in either regard is imputable To the master, in an action by one injured thereby. And where the injury results from the ne),di«encc of the serv.inl in the custody of the instrument, it is immaterial, so far as the liability of the masier is concerned, as to what use may l.ave been made of it by the servant. J'itts/>ii>x, C. &^ St. /.. A\ Co. V. S/iuUs, 44 .tin. ^"^ /ui^. A". C'ij.;er v. Great Western R. Co., s //• of L. Cas. 72. "Liability of prii tipal for fraud of ag^nt. See n-jie, 15 Am. & Eni;. R. Cas, ij?. AGENCY, 87-8». 71 Railway corporations are bound by the fraudi'lent acts of their employes wherever private persons would be bound under the same circumstances. Nugent v. Cincinnati, //. &* I. S. L. R. Co., 2 Disney (Ohio) 302.— yuoTiNG Ranger T'. Great Western R. Co., 5 H.of L. Cas. 86. A railroad company is liable to persons desiring to become stockholders, for the acts of its agents in permitting the transfer of spurious stock being made on its I ooks, aiu! for issuing false certificates of stock, though such false <;ntries result from negli- „'CMce only. New York &• N. H. R. Co. v. Schuyler, 38 Barb. (N V.) 534. VVliere an agent of a railroad corporation fraudulently sells stock and transfers it on the corporation books, the corporation can- not take advantage of the fraud, where the agent acts within the scope of his official powers. Bridgeport Bank v. New York &* N. H. R. Co. 30 Conn. 231.— Distinguishf.d IN Chicago & N. W. R. Co. z/. James, 22 Wis. 194. QuoTKii IN New York & N. H. R. Co. V. Schuyler, 34 N. Y. 30. Where an agent of a railroad company is intrusted with the duty of inspecting ice which is to be delivered to the company, the company itself will b? liable where he rejects the ice either fraudulently or in bad faith, and the motive of tlie agent in doing so is immaterial, whether it be to injure the owner of the ice or to benefit himse'.f or the company. Lynn v. Baltimore &* C, R. Co., 60 Md. 404. 45 Am. Rep. 741. — Quoting Baltimore & O. R. Co. :'. Polly, :4 Gratt. (Va ) 447. 87. illustrations. — Where the roadmaster was autiiorized to contract for the entire job of building a depot to com- pletion, including the painting of it, and did contract with a contractor for the entire work, the company would be boumi tiiereby ; but where the roadmaster made rcpiesenta- tioiis to a subcontractor, who painted the building, to the effect that the subcon- tractor need not record his lien ; that the company owed the contractor largely more than the latter owed the subcontractor ; that it was the intention of the roaflmaster not to settle with tiie contractor until all debts for work done on the building were brought in and included in the settlement; that the company had other work for the contractor to do; and that the subcon- tractor was certain of his mo'iey ; thereby causing the subcontractor to fail to record his lien ; and where the roadmaster imme- diately thereafter settled with the main con- tractor and paid him in full, the company was not liable in an action of deceit ; and on a suit therefor against the company, a non- suit was properly awarded. Hamilton v. Georgia R. Co., 78 Ga. 328. A party acting on behalf of a railrcid pro- cured defendant, who could neither read nor write, to execute an agreement for subscrip- tion, and also relating to the right of way , and such party signed defendant's name to such agreement in liis presence and at his request. Held, that such signing did not make the party the agent of defendant so as to prevent him from setting up the misrep- resentations and fraud of the party procur- ing his signature, in avoidance of the con- tract. Rockford. R. I. S- St. L. R. Co. v. Shu- nick, 65 ///. 223, 2 Am. \y. Re/). 28. The clerk of a railroad company was in- trusted by the president and treasurer with the duty of filling up and issuing certain certificates to the holders of coupe ns, the certificates being signed when delivered to the clerk, who fraudulently filled them up and issued them to persons not the rightful holders. Held, that the company was liable on such <.ertificates in the hands of innocent purchasers for value. Western Md. R. Co. v. Franklin Bank, 60 Afd. 36.— DISTIN- GUISHING Baltimore &0. R. Co. r/. Wilkins, 44 Md. II. Following Tome 7A Parkers- burg Branch R. Co., 39 Md. 36. A wagoner hauled goods from a depot to his employer's mill >, supposing them to be his, when in fact they belonged to a third person. The mill-owner used them, and the railroad company brought trespass on the case, charging they were obtained by deceit. Held, that no recovery could be had unless the taking and conversion was fraudulent ; that the act of the wagoner in itself would not render the mill-owner liable. Pennsylvania R. Co. v. Zug, 47 Pa. St. 480. — AppRovK.n in Porter v. Chicago, R. I. & P. R. Co., 41 Iowa, 358. 88. Error of jiidgiiioiit. — Where a servant acts in good faith, the master will not be liable for an error of judgment which causes an injury to a persoi: in a perilous position, whom the serv t is trying to ex- tricate. Riling V. Broadway tSr' S. A. R. Co., 53 Hun (N. 1'.) 321. 25 A'. Y.S. R. 563, 6 A^ Y. Supp. 64 1 . 80. Aols of iiu'on)|)<>ttMit s» S. A'. Co., ^ij /h/i. &* Lntr. li. Cas. .,27, 87 Mo. 422. A railroad company is liable in damages for the wrongful homicide of its customer committed by its depot agent in his oHice while the customer was lawfully there for the transaction of business with such agent appertaining to his agency. This results from the Code, § 3033, which renders all railroad companies liable for damages done by any person in their employment and service unless their agents have exercised all ordinary care and diligence. Christian V. Columbus &* A'. Ji. Co., 38 Am. &* Jinj;. A'. Cas. 261, 79 Ga. 460, 7 S. E. Kep. 216. While, as a general rule, any mental dis- ease or infirmity which would excuse the agent from criminal responsibility would also excuse the company from civil respon- sibility, this would not be available if the company employed the agent and assigned him to duty with knowledge of his insane condition or of his being subject to sudden fits of insanity. Christian v. Columbus &* A', /i. Co., 38 Am. &^ /£njr. R. Cas. 261, 79 Ga. 460, 7 .S". E. Kep. 216. A corporation is liable for the penalty i;n- posed by a Pennsylvania statute for paying out bank notes of a less denomination than f ;, where it appears that such notes were I passed by its agents or employes, as the law presumes that the officers of a corporation know what its agents do. Commonwealth v. Pennsylvania R. Co., 2 Phila. (Pa.) 250. As to the liability of railway companies under the Carriers Act for the felonious acts of their servants, see Vaughion v. London &* N. IV. R. Co., L. R. 9 Exch. 93, 43 /.. J. Exch. 75. McQueen v. Great Western R. Co., /,. A". 10 Q. B. 569, 44 L. J. Q. B. 130. Kirk- stall Brewery Co. V. Furness R. Co., L. R. 9 Q. B. 468. 42 L. J. Q. B. 142. Way v Great Eastern R. Co.. 1 Q. B. D. 692. 45 /.. 7. Q. B. 874, 3 Ry. &* C. T. Cas. XII. 91. Wliu is Hii ag:<>iit within tiic rule.*— The agent of an express company in charge of an express car is not the agent of the railroad company that runs the train, so as to make it liable for his conduct. Louisville, N. 0. &* T. R. Co. v. Douglass, 69 .Miss. 723, II .SV;. Rep. 933. Several railroad companies used different crossings in common, each company em- ploying and paying one flagman. At the time of an injury, resulting from the negli- gence of one of such flagmen, he was en- gaged ii flagging a train belonging to an- other ro.'.d than the one that employed him. //<■/(/ that this did not at^ect tlic liability of the company employing him. Buchanan v. Chicago, M. &* St. P. R. Co., 35 Am. us/i)/i &'(,'. N. A'. Co., 46 7't:r. 272.— FoL- i.owKD IN CJalvcsion, il. & S. A. R. Co. v. Donahoe, 9 Am. & Eng. R. Cas. 287, 56 Te.x. 162; Gulf, C. & S. F. R. Co. ?'. Moore, 69 Te.\. 157. 6 S. W. Rep. 631. yuoiKD IN Uillinghani i'. Anthony, 37 Am. & Eng. R. Cas. I, 73 Tex. 47, 3 L. R. A. 634, 11 S. \V. Rc[). 139. Corporations are only liable for exem- plary damages when individuals would be liabi.-; under like circumstances ; and their liability for the malicious acts of their agents is no greater than that of individu- als, //ays V. Houston o-* 6^. A^. R. Co., 46 />.r. 272, 13 ./w. l\y. Ri'fi. 281. 1>.*1. ami \vli(>ii not. — A company is not liable in punitive damages for the tort of its servant, unless it be chargeable witii misconduct in the employment or retention of the seivant, or authorized or ratified the ac. Donrran v. Afuu/iattitn A\ Co., i ilft'sc. (A'. V.) 368, 49 A', y. S. A'. 722, 21 A', y. .s////. 457- A principal is not liable in exemplary dam- ages for the tort of his agent, unless he is derelict in connection with the otlence of the agent. Ridwooii v. Metropolitan A'. Co., 6 J). C. 302. A railroad company is not liable in pu- nitive damages for the negligence of a servant, though it be gross or palpable, un- less the comjiany is also chargeable with gross misconduct; but such misconduct may be established by proof that the act of the employe was auihori ^d, or not being au- thori/i'd, was ratified, or that the employe was em[)loyed or retainefl after knowledge to the company that he was incompetent or unfit tor the position. C/ij{/iorn v. New y'orl' C. S-o //. A\ A". Co., 56 .V. l. j ^, 6 ./;«. A'y. A\/>. 179. — Ai'i'KDVKD IN Sullivan -,•. Oregon R. it X. Co., 21 Am.it Kng. R. Cas. 391. 12 Oicg. 392. Foi.l.owKi) IN Louis- ville. N. it G. S. R. Co. '<•. Fleming. 14 Lea (Tcnn.) 128. yfoiKi) IN Donivan t. Man- liallan R. Co., i Misc. (N. Y.) 368. Rk- viKWK!) IN Fisher ','. Metropolitan HI. R. Co., 34 Hun (N. V.) 43 J. It is well settled in Texas that a coiii|)aiiy is not liable in exemplary or punitive dam- ages for the torts of its employes unless the tort was authorized, or the company know- ingly adopts or ratifies the act. Gulf, C. &- S. /•'. A'. Co. V. A'eei/, 48 Aw. &* Etij;. R. Cas. 423, 80 Tc.y. 362, 15 S. W. Rep. 1105. Gal- I'eston, H. &* S. A. R. Co. v. Dona/we, 9 Am. &> /^ntf. R. Cas. 287, 56 /'t'.r. 162. — Following Hays i\ Houston & G. N. K. Co., 46 Tex. 280.— Approved in Dillingham V. Anthony, 37 Am. & Eng. R. Cas. i, 73 Tex, 47. 3 L. R. A. 634, 11 S. W. Rep. 139, />. Various Applications of the Rules. t>4. Arrcstiii{;,(letniiiiii(; or Neurcli- iug persons — Coin paiiy liable.*— A railroad company is liable for the act of its ticket agent in falsely charging a passenger, who has just purchased a ticket, with pas- sing counterfeit •money and for procuring his arrest on such charge. MuUi^^an v. Lon}i Island R. Co., 39 A^. Y. S. R. 20, 60 Hun 579. — Applying Lynch v. Metropoli- tan El. R. Co., 90 N.Y. 77.— Furlong v. South L. T. Co., 48/. /'. 329, I C. .S- £". 316. A company employing a person to arrest and prosecute persons who place obstruc- tions on the track, will be liable where such person arrests an innocent man, carries him away and leaves him in a wood. Evans- ville &* T. H. R. Co. v. McKee, 22 Atn. &* En^. R. Cas. 366, 99 I ml. 519, 50 Am. Rep. 102.— Applying Chicago City R. Co. ■<•. Mc- Mahon, 103 111. 485, 42 Am. Rep. 29. Uisiin- GUISHING Helfrich v. Williams, 84 Ind. 553. — DlSTiN(;uiSHEU IN Cincinnati, H. & I. R. Co. 7'. Carper, 31 Am. & Eng. R. Cas. 36, 112 Ind. 26, II West. Rep. 223, 13 N. E. Rep, 122. Where a person has been employed to pursue a criminal, the company so employ- ing him will be liable for his illegally arrest- ing a mr-r after he has been told not to pur- sue the criminal further. Harris v. Louis- ville, N. O. &* r. R. Co., 35 red. Rep. 116. A railway company is liable for the acts of a ticket clerk and station master in de- taining and searching a person whom they erroneously believed to have stolen a ticket. Van Den Alynde v. Ulster R. Co., 5 Ir. A'., C. L.6; affirmed 5 Ir. A'., C. L. 328. Plaintiff purclia.sed a ticket of defendant's agent at one of its stations, and, after some altercation about the amount of change * Liability fur ;irrc>-l by ft^ilion agent of pci son in waiting-room. See 48 A.M. & Eno. R. Cas 428, iilislr. 74 ACiKNCV, O.-., 1M». passed througli the gate to tukc a train. Tue a^jcnt followed her out upon the plat form, charged her witii having passed upon him a counterfeit twcnty-tive cent piece, and de- manded another in its place. She refused, insisting that her money was genuine, and refused to give hack liie ciiange received. The agent called her a counterfeiter and a coinuKjn prostitute, placed his hand upon her, and Uild Irt not to stir until he had pro- cured a policeman to arrest and search her. lie detained her on the platform for a while, but, not getting zn olRcer, let her go. J/i/d, that an action for damages was maintaina- ble ; that, in the acts complained of, the agent was engaged about the <.>eiendant's allairs, in endeavoring to protect and re- cover its property, and so it was responsililo for his aits. Palnii-ri w. Man/tat/an A'. Co., 53 //w. &^ Awi,'. A'. Ctis. 56, 133 N. }'. 261, 30 A'. /■:. Iu/>. 1001. 44 A'. V. S. R. 894; iijfirmint; 60 ////« 579, 39 N. Y. S. A'. 23, 14 A'. I'. .S'«//. 468. -UisiiN(;ui;?niN{i Mul- ligan 7'. New York & \i. U. R. Co., 129 N. V. 506 ; Mali v. Lord, 39 N. Y. jSr. 05. — (*t»iiii>any not liublc— A rail- way company is not liable for the a' ; of a foreman porter who, having charge of a station in the absence of the station master, ^ivis into custody an innocent person whom he su->pe(:ts of stealing the company's ivv>p- trt\. Juiwarits w. London &* X. IV. K. Co., L. A'. 5 C. /'. 445, 39 A. /. C". /'. 241, 18 IT- A'.S34. 22 L. T. N. S. 656. A railway company is not liable for the act of its servant in giving into custody a person on the charge of assaulting hini. and obstructing him in the discharge of his duty. I.umulcnw London &* a. IV. A'. Co., 16 A. 7". A'. .V. 609. A railway company is not liable for the act of a clerk whose duty it is to sell tickets, in giving into custodv a person wliom he suspects of an attempt to roli liie till, after the attempt has ceased, .-///e-w v. London (S-» .v. ir. A'. Co.. L. A', f) Q. It. 6^ 40 L.J. Q. li. 5S. " ^o.v C. C. 621, 33 L. I . N. i. 612, 19 W . R. 127. Wheie, by the regulations of a railway conijwny. its constables are authorized to take intii . .lody any one they see commit- ting an assault at a st.uion, but \\\r directed to use this power cautiously, and not if the light is at an end before they interpose, the company is not lial)le for the act f a con- st.d)le in wrongfully gi\in^r inid custody at the conclusion of the scuffle a person on tlu> charge of assaulting the company's servants. \V,ilk,r v. .V,»///// Eiistcrn R. Co., L. R. 5 C. I'. 640, 39 L. J. C. /'. 346, 18 W R. 1032, 23 /,. r. X. S. 14. A railway company Is not liable for an act of its station master in arresting a passen- ger where such arrest is not within the pow- ers conferred on railway companies by sec- tions 103 and 104 of the Railways Clauses Act, 1845. Potiltonv. London &^ S. IV. R. Co., 17 L. T. N. S. 1 1, 36 Z.. /. Q. /{. 294. /.. R., 2 Q- ^>'- 534. i li. &■* S. 616, 16 IV. R. 309.— CoNsiUKRKi) IN liolingbroke v. Swin- don New T(jwn Local Hd., 30 L, T. N. S. 723. A railway company is not responsible for the acts of a station master in arresting a passenger under the erroneous belief that he h.'id not paid for the conveyance of a horse which he had with him. Ponlton v. London &^ S. \V. R. Co., 8 li. 6- .V. 616, L. R. 2 (2. li. 534. 36 /-. J. Q. B. 294, 17 /,. 7". yV. .v. II, 16 (f. A'. 309.— CON.SIDERED IN Bolingbroke v. Swindon New Town Local Hd., 30 L. T. N. S. 723. SMS. A.sH]iiilt8 upon passengers.*— A person knocked down and robbed just as he was about to enter a train as a passenger cannot, under a |)etition charging that plain- till was assaalted and injured bv the serv.iiit and employes operating and controlling the train, recover against the company without showing that the jjerson who assaulted him was in tlK' empi -y of the company and that the wrv>iigful acts were done by tlie servant oragtiit of the company in the cou'se or with M the scope of his employment. Sach- rm'ils \. Atchison, T. ^, as he said, to go to the office of the company and report the driver while the horses were Ijcing changed and then to resume his seal in tlie car, but su :li iniention was not communi- cated to the driver. Tlie driver seeing the passenger going towards the office of the company stopped the car, and jumping ofl went across the street, intercepted the pas- senger on the sidewalk and violently as- saulted him. In an action against the rail- way company by the passenger to rccovci damages for the injuries he had sustained, //. Metropolitan R. Co.. L. R. 8 Q. B. 36. Rkvikwing andQucjting Poulton ?'. Lon- don & S. VV. R. Co.. L. R. 2 g. B. 534. 1>7. Oilier turtiuiiM aettt tuwnrdM IMiMHCiiKcrM.* — A common carrier of pas- sengers is responsible for the wilful miscon- duct of his servant toward a passenger. (.ioiiiiard V. Crmni Tnink R. Co., 57 Me. 202. — Rkvikwin(j Brand v. Schenectady & T. R. Co., 8 Barb. (N. V.) 368 ; Moore v. Fiichburg R. Co., 4 Gray (Mass.) 465; Seymour v. Greenwood, 7 Hurl. & Nor. 354; Milwaukee & M. R. Co. 7A Finney, io Wis. 388; Penn- sylvania R. Co. 7'. Vandiver, 42 Pa. St. 365; Weed V. Panama R. Co., 17 N. Y. 362; Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 468; Pittsburgh, Ft. W. & C. R. Co. V. Hinds, 53 Pa. St. 512; Flint v. Nor- wich & N. Y. Trans. Co., 34 Conn. 554; Landreaux v. Bell, 5 La. 275; Chamber- lain V. Chandler, 3 Mason (U.S.) 242; Nieto V. Clark, i Cliff. (U. S.) 145.— .Api'Mkd in Smith V. Maidiattan R. Co., 45 N. Y. S. R. 865. FoiJ.owKi) in Hanson v. Kuropean & N. A. R. Co.,62 Me. 84. Qt'oiKi) ani> DiSTlNGUl.SHEl) IN Williams v. Pullman Palace Car Co., 33 Am. & Eng. R. Cas. 407, 40 La. Ann. 87, 3 So. Rep. 631. Reviewkd IN Winnegar v. Central Pass. R.Co., 34 Am. & Eng. R. Cas. 462,85 Ky. 547,4 S. W. Rep. 237- A corporation is liable for the acts of its employes toward passengers, while engaged in carrying out what they mistakenly sup- pose to be orders of the corporation, even though such acts be malicious and criminal. McKinley v. Clticii};o &• N. //'. A', ft;., 44 lojva^x^.- DisriNGULSHKl) IN Stone 7/. Chi- cago & N. VV. R. Co., 47 Iowa 82. Nor fol- l.owKi) IN Marion 7/. Chicago, R. L& P. R. Co., 64 Iowa 568. .\ carrier is responsible for injuries wil- fully or carelessly inflicted upon passengers by servants engaged in the perf(jrinance of duties witliin the general scope of their em- ployment, whether the particular act was or was not authorized by the master. I.ouiavilte \ 1 * Liability of company to passengers for torts of trainmen. See notes 41 Am. Kf.f. 340, 43 Id. 36. 76 A(iKNCV, UH, «». &* N. A'. Co. V. Kelly, 13 Am. &-- I:>i,k- A'. Cas. I, 92 In J. 371. 47 -'"'• AV/. My. A carrier is liable (or an imlawdii and im- proper act, and (or llie natural and lenili- male consequences then;!)!, whitli is roui milted by its servant towards ils passen^fr while such servant isenf;aj,'ed in per(orn)iiiK' a duty which the carrier owes to the pas- senger, no matter what the motive is wliich incites tlie commission o( the act. Dwinelle V. Nau York C. &^ II. A'. A'. Co., 44 Am. Sf'Eiixi. A'. Cas. 384. i2(i .V. )'. 117. •!4 A'- 1-- h'ep. 319. 30 X. V. .S'. A'. 57». « /- A'. ./. Z2\ ; reTeruiii;i,^llun I39,9.V. )'. .V. A'.838.— Al'- iM.viNi; Stewart V. Brooklyn & C. T. K. Co., 90 N. Y. 588.— Rkvirwki) in Tinker v. New York.O. & VV. U.Co., 71 Hun (N.Y.) 431.— I\ilmiri\. M,iiiliotlitn A'. Co.. 53 Am.&^/uijf. a: c.ts. 56, 133 A', r. 261, 30 A'. /•;. av/. iooi, 44 A". )'. .v. A'. 894 ; iiffirmini; 60 ////« 579, 39 A^ )'. .V. A'. 23, 14 A'. »'. .S////i. 468. The corporation, there(ore, is liable (or acts o( injury and insult by an enjploye, allhoujjh in departure (rom the authority conlerred or implied, i( they occur in the course o( the employment. Paliiifiv. .Man- /liillan A'. Co., 53 Am. &• Kfij;. A'. Cas. 56, 133 A'. V. 261. 30 A'. /■;. A'ffi. IOOI, 44 iV. K. .S'. A'. 894 ; (iffirmint,^ (k> Hun 579. 39 N. Y. .S. A'. 23. 14 iV. Y. 'Siif>f>. 468. 0«. illustrations.— A railway com- pany is liable (or an injury to a |)assen>{er received in obeying the direction o( a brake- man, when Icavin^r a train, to cross a certain bridj{c over the company's land, which had been erected by third persons. Chance v. S/. Louis, I. M. &' .s'. A". Co.. 10 Afo. A pp. 351.— Al'i'ROVlNC. McDonald v. Chica>;o & N. W. R. Co., 26 Iowa 145.— Distinguishkd IN Cincinnati, It. & I. K. Co. v. Carper, 31 Am. & En^. R. Cas. 36, 112 liid. 26, ii West. Rep. 223, 13 N. E. Rep. 122. A brakeman who is directed to noti(y gentlemen not accompanyinj^ ladies not to enter certain cars, really exceeds his author- ity in ejecting a pa-sscnger ader he has been told and yet entered the forbidden car, but as he does no more than the company had a right to do, he is acting within the scope of his authority in so doing, and it is proper to re(use a nonsuit on the ground tiiat he was not. Peck v. AVw York C. i^ H. R. R. Co., 4 Hun (iV. 1'.) 236, 6 T. &^ C. 436. A company is liable for the tortious act of its baggage- master and conductor toward a passenger seeUng to have baggage checked, whether such act be in the cars or about the b.iggagccar, or between that and tl>c pas- senger-car. necessary to be traversed by the passenger in the legitimate business of travel; and (or a stronger reason is the company liable, when it appears that sucli employes have been ret. lined in the service a(ter such acts. (Jtisit'iiy v. Atl(tn/a &* /('. /'. R. Co., 58 (/'. False represeiitatlonH.— An in- corporatec company cannot be called on to answer in damages, in its corporate capacity, for the false and fraudulent representations of its agent, unless it authorized the repre- sentations. Houston &• T. C. R. Co. v. Mc- Kinnty,%Am. &^ Eng. R. Cas. 7.3, 55 Tex. 176. Where an agent having authority to pur- chase cross-ties for a ra'iroad, but in this case really acting as agewt for another party, purchases ties which aic delivered and put on the cars of the road falsely representing to the seller that the railroad wants them to lend to another road, the company will be liable for the price of the ties. South Western R. Co. V. A'«o//,48 Ga. 516. Alter examining the accounts of a station- agent, an auditor of the defendant company assured plaintiff that there was a shortage of |6oo only, that payment of that amount would make the accounts straight a. id satis- factory, and that if it were pai //. C. Co., 54 Hun{N. Y.) 625. 28 A'. Y. S. A'. 228. 8 A'. Y. Supp. 107. — Applying Rounds v. Delaware, L. & W. R. Co., 64 N. Y. 136; Isaacs v. Third Ave. R. Co.. 47 N. v. 122. While a ccmipany will not be liable if a person without any authority should cause injury to another by starting a train, still a brakeman who starts a train in the absence of an engineer by the consent of the fireman, cannot be said to be without authority so as to relieve the company from liability. Dillitij[fiam v. Parker, 80 7V.»-. 572, 16 S. IV. Jiep. 335' 101. Placing torpedoes on track. — Where employes of a railroad company are intrusted with torpedoes to be placed upon the track for the purpose of signaling trains, the company will be liable to one injured by such torpedoes, when they are placed on the track with no necessity for their use, and contrary to the company's orders, Harriman v Pittsburgh, C. &* St. I.. R. Co., 32 Am. (j-» Eng. R, Cas. 37, 45 Ohio St. II, 12 A'. E. AV/. 451.— Revikwing Hoflman v. New York C. & H. R. R. Co., 87 N. Y. 25. 102. Putting; trespaNsers ofl'traiiiH —Company liable.— To charge a railroad company for the wilful wrong of an employe in forcing a boy from a freight train while in motion, whereby he is injured, it must appear that the act was in the course of the employe's business and within the scope of his authority, the boy being a trespasser, not a passenger, liess v. Chesapeake &» O. R. Co., 53 ///«. 1^ Eiij;. R. Cas. 64, 35 IV. I'a. 492, 14 S. E. Rep. 234. Under section 1307 of the Iowa Code, a railroad company is liable for the tort of a brakeman committed in removing a tres- passer from a train, whether the wrongful act be merely one of negligence or a wilful and criminal wrong. Marion \. Chiia^o, R. I. &* P. R. Co., 64/o7t'a 568, 21 A'. 11 '. Rep. 86. — Noi Toi-LowiNC. Ue Camp r'. Missis- sippi & M. R. Co., 12 Iowa 348; Cooke 7/. Illinois C. R. Co., 30 Iowa, 202; McKinley V. Chicago & N. W. R. Co., 44 Iowa 314.— Adiikkkd to in Marion ?». Chicago, R. I. & V. R. Co., 66 Iowa 585. A corporation is liable for the injury where one of its conduct(jrs kicks a tres- passing boy from a car platform while it is in motion, and thus injures the boy. /A^- nianv. Ne^v York C. Gs^ II. R. R. Co., 12 J. &* S. (N. K.) I.— DisriNdiMsmNc; Cohen V. Dry Dock, E. B. k H. R. Co., 8 J. & S. 368. Nor Following Isaacs?'. Third Ave. R. Co., 47 N. Y. 122; Jackson v. Second Ave. R. Co.,47 N. Y. 274. Though an engineer acts beyond the scope of his employment in asking a boy to ride with him, yet as it is his duty, under the rules of the company, to prevent persons from riding on the engine, the company may be liab'e for his wrongfully putting the boy off while the train was in motion, and thus injuring him. Chicago, M. &• St. P. R. Co. V. West, 125 ///. 320, 15 West. Rep. 170, 17 A'^. E. Rep. 788 ; affirming 24 ///. App. 44. — Distinguished in North Chicago St. R. Co. V. Olds, 40 III. App. 421. A brakeman engages in his master's busi- ness, and within the general scope of his employment, when removing a trespasser from a train, and the company is liable for his tortious act while so engaged, though the wrong committed be a mistake of judgment. Eang v. Nenv York, L. E. (S- W. R. Co., 51 //«« (A^. 1'.) 603, 22 N. Y. S. R. no, 4 A^. Y. Supp. 565 ; affirmed in 1 23 A^. J'. 656, mem. It is within the scope of the general authority of a brakeman on a freight train to prevent trespassers from getting on the train, and to remove such persons who wrongfully get thereon ; but if, in sf) doing, he does not exercise rare and rant ion, but .;rts wantonly or maliciously, and an injury results, the company is lialile. Kansas City, \ \ 78 AGIiNCV, 10:i. Ft. S. &- U, A'. Co. V. AV//>', 34 //«/• &^ /uix. A'. Cix. 2H1. }f> A'«;i 4'/': Caulev ;•. I'itishurgh, C. & St. L. R. Co.. 4 Am. .S: Ena. R. Cas. 533. y8 I'a. St. 49«. REVir.wiNd Rounds f. Delaware, L. A \V. R. Co..^4 N. Y. 129, 21 Am. Rep. 597- — Dl.sriN(;tMsui;i) in Cin( innaii, II. tSi I. R. Co. V. Carp T, 31 Am. \' Knj;. R. Cas. 36, 112 Ind. 26, II West. Rep. 223. 13 N. E. Rep. 122. A street-car company will be liable for the tortious wilful act of its driver in throw- in;,' a person oil the car and injuring him, where it appears that the driver has the power to expel disorderly i)ersons. /.jp)is v. Bro,ulu;iy 6- S. A. A\ Co., 32 A'. V. S. A'. 232, 10 A'. V. Supp. 237. — FoM.owiNO Stewart v. lirooklyn & C. T. R. Co., 90 N. y. 588. If the driver of a street-car in ordering a trespasser from the car acts in such a way as to justify the person in believing that the driver means to inflict bodily punishincnt, it cannot be said to be contributory negli- gence on the part of such person to jump from the car when in a position of danger, whereby lie is injured, and the company will be li.ible for the injury, Hoi:;an v. Ctntnil I'ark, N. 6- E. A'. A". Co.. 33 A^ V. S. Jf. 702, 1 1 iV. J'. Su/>p. 588, 26 /. ^ S. 322 ; ren'ets,;l ill 1:4 ,V. )'. 647. mem., 36 A^. V. S. R. 352.— .\iMM,vi\(; McCann v. Si.xth Ave. R. Co.. 1 17 N. Y. 505, 27 N. V. S. R. 834. KKl. com puny not llal>h'. — The act of an einployt of a railroad company in removing a trespasser from a train cannot be considered the act of the company un- less he was employed generally to remove trespassers, or specifically to remove the particular trespasser. .Mtirion v. Chicago, A'. I. &^ /'. A'. Co., 8 Am. &» A'wl,^ A". Cas. 177, 59 hnuii 428, 13 i\'. W. Kfp. 415— Re- Vli\vh;i) IN Farber 7'. Missouri Pac. R. Co., 32 Mo. App. 378. .\ street car company is not liable f«)r the act of its conductor in wilfully putting a boy olT a car in such a way as to injure him. Murphy v. Central Park. A'. cJ- A". A'. A*. Co., \(>J. C-^ .S'. (.\'. r.)96.— Im)|,i,. 337 ; iifirmin^ 14 /. Sf S. 526.— Al'iM.iKU in Kowii t'. Clirisiopher & T. S. R. Co., 34 Iliin (N, Y.) 471 ; Molloy v. New York C. & H. R. R. Co.. 10 Daly (N. Y.) 453. Kixo.NCli.KU IN Carter v. Louisville, N. A. & C. R. Co., 98 Ind. 552. Rkvikwkd in Har- riinan v. I'iilsburgli, C. & St. L. R. Co., 32 Am. & ling. R. Cas. 37. 45 Ohio St. 11. A boy of 1 1 was stealing a ride on a freight train at a point where boys were in the habit of riding about 6 or 8 blocks to a station. In this case, after telling the boy to get otT, the brakeman ran him from one car to the other by throwing coal at him. Finally he rolled a large lump of coal against him and knocked him from the train, which was mr>ving at the rate of 10 miles an hour. Ne/tf, that the act was sutTi- ( icntly within the scope of employment of the brakeman to make the company lia- ble. Lang v. AVw York, L. E. <&«• W. R. Co., 4 A^. Y. Supp. 565. 105. YiirioiiH otlior tortioiiH actN.- VVhere a clerk of a city railway company has assigned to him the general and special duty of looking for and arranging the evi- dence in cases where the company is sued by persons injured, or claiming to be in- jured, by the carelessness of those intrusted with the management and operation of its street cars, and is empowered generally to perform that duty without special direc- tions, with general authority to use his own judgment in the performance of his duties, if he, in looking up the evidence in the case, wrongfully and without authority oflers money to a witness to keep him from testi- fying against the company, or to influence his testimony, the company must be held responsible for his act, and it is proper evi- dence against the company. Chicago City R. Co. V. McMahon, 8 Am. i5~» Eng. R. Cas. 68. 103 ///. 485.— Applied in Evansvillc & T. H. R. Co. V. McKec, 22 Am. & Eng. R. Cas. 366, 99 Ind. 519, 50 Am. Rep. 102. After the wreck of a train carrying cattle, it being necessary to remove them from the cars, some of them escaped, and plaiiitill's son was employed by a section foreman, who was instructed to reload the cattle. The son took plaintitl's horse and used it in driving the cattle together with- out plaintif!'s knowledge or consent. //M, that the company was liable for an injury to the horse. Atchison, T. iS^ ..V. /•'. A". Co. v. Randall, 38 Am. &• Eng. R. Cas. 255, 40 Kan. 421, 19 Pac. Rep, 783. A street-car company may be liable for double the amount of damages sustained by a person from the bite of a dog kept by the employes of the company, and where it is sought to charge the company for such damages, evidence tending to show that the dog was kept by an employe about the com- pany's stables, with the knowledge and im- plied consent of the superintendent, will justify a finding that the dog was kept by the company. Barrett v. Maiden &* At. R. Co., 3 Allen {Mass.) 101. If a third person is injured by an employe while using a derrick in the manner con- templated by the com|)any, the latter is lia- ble. Conlon V. Eastern R. Co., 15 Am. 6>» Eng. R. Cas. 99, 135 Mass, 195, A railroad company will be liable for the act of its employes acting under the direc- tion of its general superintendent, for forci- bly entering upon premises and expelling the occu|>ant, and threatening him with in- jury if he returns, as such act will be deemed the official act of the company, and ratified where the company retains posses- sion. People ex rtl. v. New York C. R. Co., l\ N. Y. 623. Plaintiff, having been at divers times em- ployed by defendant railroad as a detective in cases of property stolen from its cars, was requested by its agent, duly authorized for that purpose, to go from one station to another, to aid in discovering persons who had stolen property from its cars at the latter station, and the means of conveyance furnished was a hand-car. Held, that the company was liable for any injury to plain- tiflf while riding thereon, caused either by the unfitness of such means of conveyance, or by any negligence of its servants in run- ning the same. Pool \ . Chicago, M. 6-« St. P. R. Co., 3 Am. &^ Eng. R. Cas., 332, 53 IMAGE EVALUATION TEST TARGET (MT-3) .i' 1.0 1.1 ^ U£ ■20 u '/ Photographic ScMioes Corporation 23 WIST MAIN STRRET WnSTIR,N.Y. 145M (716) •72-4503 4^ r / ^ 80 AGENCY, 106, 107. lVts.6$7, II N. If. /\V/. 15.— Distinguish- ing Hoar V. Maine C. R. Co., 70 Me. 65; Eaton I/. Delawaie, L. & \V. R. Co., 57 N. Y. 382.— Quoted in Cincinnati, H. & I. R. Co. V. Carper, 31 Am. & Eng. R. Cas. 36, 1 ■:; Ind. 26, II West. Rep. 223, 13 N. E. Rep. 122. REVIEWED IN Dixon v. Chicago & A. R. Co., 109 Mo. 413. If a foreman employed by a corporation lias authority to employ and discharge \v such a workman, states a cause of action against the corpora- tion. Koji^ahn v. Moore Mfg. &* F. Co., 79 Wis. S73. 48 A^. ;F. A'ep. 669. A cloak-room clerk accustomed to take parcels for passengers to a train when there is no porter, *hile running back from the train to which he has taken a passenger's parcel, is acting within the scope of his em- ployment, and if he runs against and upsets a woman, causing her death, the company is liable. Mi'/ner v. Great Northern Ji. Co., SO L. T. 367. 4. Ratification. 106. General rules. — A contract signed by an authorized agent may be rati- fied by the company, and for this purpose its acts are sufficient. Taylor v. Albemarle S. Nav. Co., 105 A^. Car. 484, \o S. E. Rep. 897. A railway company may ratify the act of its iO'-vant in assaulting and imprisoning a passei ger to compel hini to pay his fare. EastCi n Counties R. Co. v. Broom, 6 Exch. 314, 15/wr. 297, 20 Z. 7. E.\ch. \<^,6Railw. Cas. 743.— Not followed in GofT v. Great Northern R. C(>., 3 El. & El. 672, 30 L. J. Q. B. 148, 7 Jur. N. S. 286, 3 L. T. 850. The same rule of construction must apply with reference to ratifying contracts made by agents, whether the contract is favorable to the principal or not ; so a railway cor- poration cannot claim the benefit of favor- able contracts made by its agent:;, where a liberal construction does not place such contracts entirely beyond the corporate powers of the company, but shields itself by a more limited construction when the con- tracts are unfavorable. Noj'es v. Rutland &* B. R. Co., 27 Vt. no.— Followed in Mid- dlebury Bank v. Rutland & VV. R. Co., 30 Vt. 159; Sturges v. Knapp, 31 Vt. i. 107. What aiiiouuts to u ratifica- tion, generally.* — In case of railway cor- porations the rule is, that to amount to a ratification the adoption or confirmation of the wrongful act of the servant must be shown to be the act of some chief otiicer, vice-principal, or alter ego of the company, who must be proved to possess under the company sufficient authority and discretion to act and speak for the company. Gulf, C. &• S. F. R. Co. V. Reed. 48 Am. <3- Eng. R. Cas. 423, 80 Te.i: 362, 155. IV. Rep. 1105. Where a railroad takes and applies, to its own benefit, ties delivered upon the line of its road, it will be liable in indebitatus as- sumpsit for their value; and it matters not whether the person who procured their de- livery was the agent of the company or its contractor. Toledo, IV. <&* W, R. Co. v. C/tew, 67 ///. 378. Where a railroad corporation receives railroad material bought upon its credit and for its use by one of its officers, without au- thority, and uses it for the corporate pur- poses for which it was designed, this is an adoption and ratification of the act of the officer. The directors using the material so purchased are bound to inquire, and are presumed to know, whether it was paid for or not ; it is not, therefore, essential to an adoption of the act of the officer that the directors should know the terms of the con- tract. Scott V. Middletown, U. 6- IV. G. R. Co., 4 Am. 6- Eng. R. Cas. 114,86 A^. V. 200; affirming 21 Hiin. 231. — DISTIN- GUISHED IN Holmes v. Board of Trade, 81 Mo. 137. Where the general manager of an associa- tion of railway companies has notice of the existence and terms of a special contract for transporting grain at a reduced rate, made by an agent of one of the associated companies, and afterward furnishes cars and transports the grain, this is evidence from which a ratification of the special con- tract may be found. Erie &* P. Dispatch V. Cecil, 112 ///. 180. Proof that a committee of the direc- tors of a railroad company had examined certain notes issued by tlie treasurer and had pronounced them genuine, and that re- * Ratification of unauthorized act by corpora- tion, see note, 13 Am. & Eng. R. Cas. 651.- wm AGENCY, 108. 81 ports had been made showing that interest had been made on them, and had been ac- cepted, is sufficient to show a ratification of the act of the treasurer in attaching the corporate seal to the notes. St. James Parish v. Newburyport &* A. H. R. Co., 141 Mass. 500, 6 N. E. Rep. 749. — DISTIN- GUISHING Kelley v. Newburyport & A. H. R. Co., 141 Mass. 496. If an agent of a railroad company sub- mits a controversy to arbitration, subse- quent appearance by the company without objection to the act of the agent in making the references, is a ratification of the act of the agent and estops the company from making objection to the award, so far as the act of the agent, touching the submis- sion, is concerned. Memphis &* C. R. Co. V. Scrttggs, 50 Miss. 284. Where a municipal corporation is author- ized to appoint commissioners to issue its bonds in aid of a railroad, and such commis- sioners have apparently been appointed, and have issued what purport to be the obligations of the municipality, if such ob- ligations be treated by the muiicipality as valid through a number of years by both affirmative and negative acts, then both the municipality and its taxpayers cannot raise an objection to tlie validity of the bonds, based upon an irregularity in the appoint- ment of the commissioners, or in issuing the bonds. Calhoun v. Delhi &> M. R. Co., 28 Hun. (N. y.) 379, 64 ffow. Pr. 291.— Quoting New York & N. H. R. Co. v. Schuyler, 34 N. Y. 30.— Distinguished in Craig V. Andes, 15 Am. & Eng. R. Cas. 662, 93 N. Y. 405. The managers of a railroad company are presumed to know as much about the con- duct of their agents as is known to every- body else ; and if they know that their agents are accustomed to pay out illegal notes in making change to passengers, this is an approval of the acts done, and the cor- poration is responsible. Commonwealth v. Ohio <&^ P. R. Co., I Grant Cas. (Pa.) 329. 108. llliistrntions. — In an action against a company to recover damages for its failure to deliver cotton, the receipt for which wos signed by a subagent, wlio testi- fied that he was appointed as such subagent by the local agent ; that the president and superintendent of the road knew that he was acting as subagent and made no objec- tion ; that the officers of the road iiad fre- quently given him directions about the I D. R. 0—6. business, and that freight had been delivered on at least two occasions on receipts similar to the one in question, hM, that the evi- dence was admissible as tending to prove a ratification of the agency. Alabama &^ T. R. R. Co. v. Kidd, 29 Ala. 221. — Quoted in Alabama G. S. R. Co. v. Hill, 76 Ala. 303- Where plaintifl did work for a railroad and the company afterwards made a bene- ficial use of it, and one claiming to act as an agent of the company made the contract for the work, and where the company's en- gineer promised to make out a voucher for it, and the chief-engineer laid out the work, and an assistant engineer signed a voucher therefor with plaintiff's name therein as con- tractor, held, that the agency might be presumed and a promise to pay what the work was reasonably worth might be in- ferred. Roc A/or d. R. I. 6<» St. L. R. Co. v. Wilcox, ee III. 417. Language used by the superintendent of a company admitting and justifying an assault by one of its drivers was held to bind the company. Malccck v. Tower Grove &• L, R. Co., 57 Mo. 17, 9 Am. Ry. Rep. i. The treasurer of a company notified the company that he would be absent tempo- rarily, and directed that remittances be made to the firm of which he was a mem- ber. An account was kept of the corpora- tion funds with the firm, and while the funds were in the firm's hands it appeared that a report had been made to the stockholders that the funds were in the hands of the firm as "financial agents." Held, that this was a sufficient ratification of the act of the treasurer in selecting the firm as the proper depositories, and relieved him from liability. New York, P. &• B. R. Co. v. Dixon, 114 N. y. 80, 21 N.E. Rep. no, 22 N. F. 5. R. 684 ; reversing 47 Hun, 634, 13 A'^. Y. S. R. 445. A company when sued for a balance due for constructing its road denied the author- ity of certain officers to make the contract under which the work was performed. It appeared that after the work was commenced a large number of thedirectors were present, and in their presence the president, who had made the contract, pointed out plaintifl as the contractor, and that the company recog- nized him thereafter as the contractor; furnished him with materials and made pay- ments on the work. Held, a sufficient rati- fication of the contract to bind the company. :l:; VW''. : * ^} i: m: 8-Z AGENCY, 100-111. Cunningham v. Massena Springs (S- Ft. C. K. Co., 44 ^V. y. S. R. 723, 63 Hun 439. Plaintiff sued defendants, who manufac- tured apparatus for heating cars, to recover compensation for mai B. R. Co. v. Lincoln, 29 Vt. 206. The fact that a solicitor of a railway com- pany conducts iroceedings against a pas- senger taken into custody and charged with refusing to pay his fare and assaulting the company's inspector, is no evidence of rati- fication by the company. Eastern Counties R. Co. V. Broom, 6 Exch. 314, x^Jur. 297, 20 L.J. Exch. 196, 6 Railw. Cas. 743. — NOT Followed in Goff v. Great Northern R. Co., 3 El. & E1.672,3oL. J.Q. B. i48,7jur. N. S. 286, 3 L. T. 850. 110. When ratification may be Inferred, generally, — Where there was evidence tending to show that a party, bar- gaining for railroad ties, was acting as tlie agent of a company, and it appeared that the company when it accepted the road from its contractors used the remaining ties, left by the seller upon the road, held, that it might be inferred that the agent's contract was approved by the conipany. Toledo, IV. &> ly. R. Co. v. Chew, 67 ///. 378. Where an agent of a railroad contracts to carry goods beyond the initial carrier's line, if it appear that the agent has been making such contracts for several years, then the assent of the railroad thereto niay be pre- sumed, and it will be estopped from deny- ing his authority so to contract, though as a matter of fact the agent had no direct authority to do so. Perkins v. Portland, S. (S- P. R. Co., 47 Me. 573. An open and notorious custom of all the ticket agents and conductors employed by a railroad company, to pay out illegal notes in making change to passengers, is evidence that should be left to a jury, to enable them to determine whether the custom was authorized by the company. Commonwealth V. Ohio <3- P. R. Co., i Grant Cas. (Pa.) 329- Where a clerk of a railway engineer agrees for the purchase of ties on special terms, and the ties are afterwards delivered and used by the company, there is evidence from which a jury may infer a special con- tract by the directors on behalf of the com- pany which would be valid under 8 & 9 Vict. c. 16, s. 97, on the terms agreed to by the clerk. Pauling v. London 6- AK IV. R. Co., 7 Railw. Cas. 816, 8 Exch. 867, 23 Z. 7. Exch. 105. 1 1 1. from acquiescence.— Where a railroad station agent eng;iges a surgeon to attend an employe injured in the service of the company, although such act is un- authorized, yet the company will be liable if, upon due notice given to the general superintendent, the act is not repudiated. Toledo, IV. f the company for said division, but 1 her said division-superin- tendent nor the jompany ever paid any at- tention to the bill or letter. Held, sufficient to uphold a finding by the jury that said division-superintendent ratified the employ- ment of the physician by the master- mechanic. Pacific R. Co. V. Thomas, 19 Kan. 256, 17 Am. Ry. Rep. 483. A director of a railroad company em- ployed an attorney, and authorized him to employ local counsel to attend to a su't in which the company was interested. Held. that the report of the original attorney, of his employment of the local counsel, co the director, was legal notice to the corporatif)n, and the continued silence of the director amounted, in law, to the ratification by him and through him by the corporation, of the action of the original attorney in the prem- ises. Pittsburgh, C. &> St L. R. Co. v. Wooley, 12 Bush {Ky.) 451. A director of a railroad, financially em- barrassed, to relieve the company, subscribed for additional shares in the name of a non- resident stockholder, and immediately noti- fied him, who made no replj'. The dividends on his original stock, for the next seven years, were applied to paying up this new stock, when the stockholder demanded his dividends, claiming that the director was not authorized to make the subscription. Held, that the director could not be regarded as an intermeddler in making the subscription, and that the silence of tlie stockholder for \m\ C 1 m 'x 84 AGENCY, lia, 114. so long a time was evidence of a ratification. Philadelphia, IV. 6- B. A'. Co. v. Cowell, 28 Pa. Si. 329. 113. from reteutiou of em- ployee iu service of company.— Where a company is sued for the misconduct of an employe, and a verified copy of the com- plaint is served upon it which charges such misconduct, this is notice to the company ; and proof that the employe was retained in service, and promoted thereafter, may be given as tending to prove ratification of his act. Bliss V. Chicago &> N. IV. R. Co., 42 Wis. 654. 1 5 Am. Ry. Rep. 45. Immediate notice to a conductor that a brakeman has been guilty of misconduct toward a passenger is the same as notice to the company, and though the charge against the brakeman may be disbelieved, yet the company retains him in its service at its peril. Bass V. Chicago 6- N. W. R. Co., 42 JVis. 654, 1 5 Aw. Ry. Rep. 45. Where the issue is made as to whether a company has ratified the tortious acts of a brakeman toward a passenger, for which he would be liable in exemplary damages, proof that the brakeman had been retained and promoted is not conclusive as to the ques- tion of ratification, but the question may be left to the jury. Bass v. Chicago S^ N, IV, R. Co., 42 Wis. 654. 15 Am. Ry. Rep. 45. The retention of an employe who has been guilty of negligence is not a sufficient rati- fication of his act to subject his employer to liability for exemplary damages. Interna- tional &* G. A''. R. Co. V. McDonald, 42 Am. &* Eng. R. Cas. 211, 75 Tex. 41, 12 S. W. Rep. 860. Dillingham v. Ant/tony, 37 Am. &* Eng. R. Cas. I, 73 Tex. 47, 3 L. R. A. 634, II 5. W.Rep. 139. The mere retention of a servant after his wilful tort, without proof of knowledge of the tortious quality of the act on the part of the master, is insufficient to authorize an "nference of a ratification of the tort. Doni- van V. Manhattan R, Co., i Misc. (N. V.) 368, 49 N. Y. S. R. 722, 21 N. y. Supp. 457. The retaining of a servant through whose alleged negligence injuries were caused in its service by a railway company, after it has been sued, when the alleged acts of negli- gence are denied by the servant, does not of itself constitute a ratification of the alleged act. McGown v. International &^ G. N. R, Co., 8s Tex. 289, 20 S. W. Rep, 80. Ratification of an unauthorized and un- lawful act can only be inferred from acts which evince clearly and unequivocally the intention to ratify, and not from acts which may be readily and satisfactorily explained witnout involving such intention. In this case, there being no witness, and plaintiff and tLr porter giving very different accounts of the affair, ratification of the misconduct imputed by plaintiff cannot be inferred from the retention of the porter, when the defend- ant so acted because it honestly believed the latter, and thought it just to maintain the status quo, at least until judicial determina- tion of the conflict. Nor is the case affected by the fact that the porter was criminally convicted of assault and battery, when, in such a trial, thf porter was not heard as a witness in hi ^wn defence, and when he might have been so convicted on evidence falling far short of the outrage charged by the plaintiff. Williams v. Pullman Palace Car Co. , 33 Am. &* Eng, R. Cas. 407, 40 La. Ann. 87, 3 So. Rep. 631. 114. Principal must knovtr tke facts.— A railroad company will not be held to have ratified an unauthorized contract made by the foreman of a gang of construc- tion men to pay for goods furnished the men, upon proof that it paid for a certain part of the goods in ignorance of the true terms of the contract, and that it was in the habit of collecting accounts against its em- ployes, in favor of third parties, by retaining their wages. Steunkle v. Chicago, S. F. &^ C. R. Co. 42 Mo. App. 73. The ratification of an unauthorized con- tract by an agent of a railroad company, to pay $50 per day damages for hindering the use of a certain logging road by the con- struction of the railroad's right of way across same, cannot be shown by proof that the contractors for the railroad raised the tracks of the logging road and put in a crossing, in the absence of any showing that the work was done in pursuance of such agreement, and with knowledge thereof by the party and its agents sought to be charged. Haynes V. Tacoma, O. Sr' G. H. R. Co., 7 Wash. 211, 34 Pac. Rep. 922. The agent of a railroad company agreed with a landowner that a railroad should be located across his lands on a particular lo- cation, where the damages would be less than where the surveyors had located it, which agreement was ratified by the man- aging officers of the company ; but by some oversight the road was not located as agreed upon, and the landowner filed a bill In AGENCY, 115,110. 86 equity to have the location reformed to cor- respond to the agreement. It appeared that such managing officers and the agent had no power to enter into such an agreement. }leld, that the bill could not be sustained unless it appeared that the directors had had notice of the agreenient. Central Mills V. New York » A'. E. R. Co., 127 Mass. 537- In an action against a railway company for a breach of contract in failing to receive stone it appeared that the company's fore- man was authorized to contract for 400 yards of stone to be used at a certain place, which was delivered and paid for. Plain- tiff claimed that the foreman contracted for 1200 yards additional, to be used at another place, which he was ready to deliver, and which the company refused to receive, claiming that such amount had never been contracted for. Plaintiff's evidence tended to show that the foreman did contract for 1200 yards in the name of the company. The evidence on behalf of the company tended to show liiat the foreman was only authorized to contract for the 400 yards; the chief engineer and other officers had no knowledge that he had undertaken to con- tract for any other stone. Held, that the question of the foreman's authority to con- tract for the 1200 yards should have been left to the jury. Gano v. Chicago &^ N. W. Ji. Co., 49 Wis. 57, 5 N. W. Rep. 45. 115. Eifect of ratification, gener- ally.— Where a railroad company has rec- ognized a person as its agent by adopting and ratifying his acts in dealing with third persons, then the company is estopped from denying the agency of the party, so far as it would tend to injure the paiiies that he had dealt with. Summerville v. Hannibal >>» St. J. R. Co., 62 Mo. 391. If a party who has contracted with a per- son representing a proposed corporation, ratifies a portion of the contract, it binds him to a performance of all other material parts of the contract. Titus v. Catawissa R. Co., 5 Phila. (Pa.) 172 One will be bound by the contract made in his name by another, as his agent, when such other has been accustomed to make similar contracts for him, as his agent, with his knowledge and approbation, and which have been recognized and ratified by him. Texas Pac. R. Co. v. Nicholson, 21 Am. 6- Eng. R. Cas. 133, 61 Tex. 491. Where the superintendent of a railroad company has formerly directed an under- taker to look after employes who had been killed, and the company had paid for such services, the authority of the superintendent to make further orders cannot be disput.d by the company. Missouri Pac. R. Co. v. Turner, 2 Tex. App. {Civ. Cas.) 720. While the Alabama Code provides that an answer for a corporation as garnishee cannot be made by any person unless he shall make affidavit that he is the duly au- thorized agent of the corporation, yet the defect of s\icli answer without the pre- scribed affidavit is waived by a subsequent appearance of the corporation, and recog- nizing the authority of the agent to answer, and any recitals in the record to the effect that the parties appeared by attorney and consented to continuances, is sufficient to show appearance by the corporation. Mem- phis &' C. R. Co. V. Whorley, 74 Ala. 264. Ratification by a railroad company of the act of its agent in selling and conveying lands, where such ratification is only claimed to result from the company having knowl- edge of the acts of the agent, will only operate as an equitable estoppel, and is not available in a court of law where the legal title to the land is involved. Standifer v. Swann, 78 Ala. 88. A corporation is liable as for conversion, where its agent receives property from a debtor to the company and sells it toward payment of the debt, if the company re- ceives and retains the proceeds of the sale, though it appear that the agent acted in his own name and without authority. Dunn v. Hartford &* W. H. R. Co., 43 Conn. 434. Where the keeper of a boarding-house of a railroad company has been in the habit of purchasing provisions from the plaintiff, for the use of the boarding-house, and the bills for such provisions had been, from time to time, paid by the company, the plaintiff' might properly regard him as an agent pro iantootthe company, and would be justi- fied, in the absence of any notice to the con- trary, in dealing with him as such. Phila- delphia, W. &■* B. R. Co. V. Weaver, 34 Md. 431- 116. Retroactive effect.— A ratifica- tion of an act, done b'^ one assuming to be an agent, relates bad, and is equivalent to a prior authority. When, therefore, the adoption of any particular form or mode is necessary to confer th«" authority in the first instance, there can be no valid ratification, ill ' m 'ii i '% : '■ •ytl A' 8G Adl'NCY, 117-1 lO-AC.RliKMliNT. except ill tlie suniu iiiiiuitci. I>c>piitch Line of Packets v. Bellamy M/^. Co., 12 N. H. 205. Wliere a corporation has recognized and ratified the acts of its agents, it cannot afterward impeach their authority by show- ing that they were not reguhirly appointed under a vote of the directors. Flynn v. Des Moines &• St. L. K. Co., 63 Iowa 490, 19 A'. W. Hep. 312. Where a person employs an attorney to represent a railroad company, the power of the person so employing the attorney will be implied from the subsequent act of the company in adopting or recognizing the em- ployment. Southgate v. Atlantic * P. R. Co., 61 Mo. 89. The agent of corporation contracted with the Secretary of the Treasury to manufact- ure and furnish the department a large number of seal-locks for cars carrying merchandise througli the United States and Canada. The department refused to accept the goods, and, when sued, set up the de- fence that the agent, not being formally au- thorized to contract, his act could not be considered the contract of the corporation. Held, that the previous authority of the agent was a matter of no consequence after the corporation accepted the contract and manufactured the goods ; that it was not a matter that the government could take ad- vantage of. International S. &* R. Supply Co. v. United States, 11 Ct. of CI. 209. IV. PUBLIC AGENTS. 117. Power to contract.— Where, by certain work done by the government rail- way authorities in the city of St. John the pipes for the water supply of the city were interfered with, the claimants are entitled to recover for the cost reasonably and properly incurred by their engineer in good faith, to restore their property to its former safe and serviceable condition, under an arrange- ment made with the chief engineer of the government railway, and upon his under- taking to indemnify the claimants for the cost of said work. Reg. v. St. John Water Com'rs, 19 Can. Sup. Ct. 125; affirm- ing 2 Can, Exch. 78. Where the suppliant contracted with the Crown for the construction of certain public works, to be done in a certain manner to the satisfaction of the proper officer of the department of railways and canals, the con- tract stipulating that the express covenants contained therein should be the only ones binding upon the Crown, held, that said officer had no power to vary or add to the terms of the contract so as to bind the Crown by any new promises. Mayes v. Reg., 2 Can. Exch. 403. A person who had a contract to grade the station grounds on the line of a govern- ment road that was being constructed, was told by one of the commissioners having charge of the construction to fill a cellar which was on the railway grounds, but which was not included in the contract for grading the grounds. It appeared that it was necessary to have the filling done at once. The commissioner said that he would pay for the extra work, and being applied to afterward said that he would see the en- gineer and have the amount put in the esti- mates, to be paid by the government. On the failure of the government to pay, suit was brought against tiie commissioner for the amount. A nonsuit was allowed, and a rule to set aside the nonsuit was dis- missed by a divided court. Sumner v. Chandler, 18 New Brun. 175. 118. to waive forfeitures.— While the law is that the Crown is not bound by estoppels, and no laches can be imputed to it, and there is no reason why it should suffer by the negligence of its officers, yet forfeitures may be waived by the acts of ministers and officers of the Crown. Peter- son v. Reg., 2 Can. Exch. 67. 119. liiability for uegrligeiice of.-— The Crown is liable for an injury to the person received on a public work resulting from negligence of which its officer or ser- vant, while acting within the scope of his duty or employment, is guilty. Martin v. Reg., 2 Can. Exch. 328. AGREEMENT. Between connecting lines, see Connecting Lines, 4, 5. — connecting passenger carriers, see Car- riage OF Passengers, IV, 2. Effort to make before condemnation proceed- ings, see Emi.nent Domain, X, 4. To furnish cars, see Station Agents, 5. — pay interest on stock subscription, see Subscriptions to Stock, 1, 5. What necessary to give right to conventional subrogation, see Subrogation, 1. See also Contracts, and the places there re- ferred to. ALEXANDRIA & W. R. CO., l,ti— ANDROSCOGGIN R. CO., 1, 2. 87 ALABAMA. Aid to railroads by the state, see State Aid, 1. ALEXANDRIA & WASHINGTON B. CO. 1. Comprises two distinct corpora* tioiis. — The Alexandria & Washington R. Co., incorporated by the act of Feb. 27, 1854, of the Legislature of Virginia, though the same in name with the company incor- porated by the act of Congress of March 3, 1863, is another and distinct company. IVashington, A. &• G. R. Co, v. Martin, 7 D. C. 120. The Virginia Company can exercise no control or ownership over that portion of ♦.he road which extends north of the Vir- ginia line. Washington, A. &■* G. /i. Co. v. Martin, 7 Z>. C. 120. The railroad which extends from the depot of the Baltimore & Ohio Railroad in Washington to Alexandria, Va., is made up of two roads, each owned by a diflerent company, though both companies may have the same name and style in both jurisdic- tions, and consist of the same natural per- sons. Washington, A. &' G. R. Co. v. Martin, 7 D. C. 1 20. 2. Privileges conferred by act of Congress.— The act of Congress of 1863 may have intended to confer the privileges it contains upon the Virginia corporation known as the Alexandria & Washington R. Co., yet that company never accepted the act, nor did it construct either the bridge or the road extending from Washington to tlie boundary line of Virginia. Washington, A. &' G. R. Co. V. Martin, 7 D. C. 120. Whatever doubt there may have been as to what company the act of 1863 was in- tended to benefit, all doubt was removed by the act of Congress of July 26, 1866, where It was expressly affirmed that the Washing- ton, Alexandria and Georgetown R. Co. was the company intended to be referred to. Washington, A. » G. R. Co, v. Martin, 7 D. C. 120. ALTEPATION. Of bonds, see Ronos, 29. — by-laws, see By-laws, 1, AMENDMENT. Curing: misnomer by, see Name of Rail- road, 4. In iction for injury to animals, see Animals, V. 5. Of bill of particulars, see Bills of Particu- lars, 5. — by-laws, see By-laws, 1. — charters, see Charter, II, 3. — creditors' bill, see Creditor's Bill, 8. — injunction bill, see Injunction, 16« — judgment, see Judgment, V. — pleadings, see Pleading, V. I AMOUNT. Jurisdiction at. dependent on, see Appeal, etc., 2; Jurisdiction, 8. Of compensation for carrying the mails, see Carriage of Mails, 15. — damage, competency of witnesses to tes> tify to, see Witnesses, V, i. — goods carried, discrimination as to, see Discrimination, III. Right to costs as dependent upon, see Costs, 1. Statutory limit of, in actions for causing death, see Death by Wrongful Act, XIII, I. What necessary to make tender, see Tender, 4. ANDROSCOGGIN R. CO. 1. Construction of charter — Ob- struction of highway. — A provision in the charter to the effect that the railroad shall be so constructed as not to obstruct the safe and convenient use of a highway, imposes a continuing obligation upon the company, requiring it not only to construct but to keep its road in a condition so as not to obstruct the use of the highway. Well- come V. Leeds, 51 Me. 313. 2. Power to mortgage— Extension ot road. — Under the Maine Statutes of i860, chs. 450 and 475, which authorize the railroad to extend from Leads to Topshan, the original road and the extension are treated as distinct roads, and while the statutes authorize a mortgage of both, they are to be mortgaged as distinct roads, with distinct franchises, and do not authorize a mortgage of both the original line and the ex- tension as a unit. Bath V.Miller, 51 Me.y^x. ANIMALS. Carriage of, see Carriage of Live Stock. on ferries, see Ff.rries, lO. Cattle-pens as nuisances, see Nuisances, 7. Cruelty to, see Criminal Law, III. Destruction of, by fire, see Fires, II, la •! ■ . -¥■■■ 68 ANIMALS, INJUKILS TO, I. Injuriet to cars by, see Injuries to Cars nv Cattle. Obligationt of atock-yard to receive, see Stock-yards, 2. ANIMALS, INJURIES TO. Power of Agents to compromise claims for, see Agency, 00. See also Flooding Lands, 5 ; Stock-yards, 4 ; Sunday, 8. I. 8TATUTBB 88 1. Constitutionality 88 2. Interpretation and Effect, . . 93 3. Repeal 96 II. LIABILITY IBSESPEOTIVE OF COM- PANY'S DUTY TO FENCE 97 1. In General 97 2. Animals Trespassing or Straying upon Track 103 a. Irrespective of Owner's Duty to Inclose Stocic 103 b. As Dependent upon Owner's Duty to Inclose Stock. 114 c. Lookout; Signals; Speed; Stopping Train, etc. . 118 3. Necessity for Actually Touching Animal. 131 4. Injuring or Killing Dogs. .. 138 III. LIABILITY AS DEPENDENT UPON COMPANY'S DUTY TO FENCE... 138 1. Duty to Fence Track 138 a. In General 138 b. Against Whom Must Fence 142 c. Where Fences Must be Built 143 d. Sufficiency of Fences. . . 149 2. Effect of Performance of this Duty 151 3. Injuries Caused by a Breach of this Duty 1 54 a. Duty Imposed by Statute 154 b. Duty Imposed by Con- tract 166 4. Failure to Repair or Rebuild Fences 168 5. Animals Trespassing, Running at Large, or Coming from Lands not Belonging to Owner.,.. 175 6. Cattle-guards. 183 7. Duty with Respect to Farm Cross- ings, Gates, etc 186 8. Injuries at Public Crossings. 193 9. Injuries at Station Grounds — Yards 208 10. Injuries in Cities, Villages, etc 204 IV. GONTBIBUTOBY NEOLIOENOE 208 1. In General. 208 a. What is, and its effect.. 208 b. What is not 215 c. Comparative Negligence. 217 2. Animals Rttnning at Large. 2 1 8 a. Owner May Recover. .. 218 b. Owner May Not Recover 222 3. Proximate Cause 227 4. Liability Notwithstanding Own- er's Negligence 229 5. Burden of Proof. 233 6. Question of Law or Fact. .. . 234 V. PBOCEDUBE 236 1 . Jurisdiction — Process 236 2. Right of Action — Form of Action —Demand. 238 3. Parties 244 4. Pleadings 246 a. Declaration, Complaint, etc 246 b. Other Matters of Plead- ing 269 5. Defenses 276 6. Evidence 278 a. In General 278 b. Sufficiency 287 c. Prima Facie Evidence — Pre- sumptions 301 d. Burden of Proof 311 7. Matters Relating to Trial... 319 a. In General 319 b. Instructions 331 8. Amount of Recovery 345 9. Double Damages 351 10. Procedure injustices' Courts. 354 VI. EFFECT OF OFEBATION OF BOAD BY LESSEES, BECEIVEBS, ETC 368 I. STAIUTES.* I. Constitutionality. 1. Generally. —The provisions of the Indiana act of March 4, 1863 (Acts 1863, p. 25), for the enforcements of judgments against railroad companies for stock killed, are not repugnant to sections 22 and 23 ot article 4 of the constitution of Indiana. Toledo, L, Eng. R. Cas. 157,91 Tenn. 489, 19 S. W. Rep. 618. 3. Recitals in caption or title of the act.— The Tennessee act of 1891, ch. loi, making railroads liable for all damages to live stock caused by moving trains is not in- valid because it amends in part another statute without reciting or otherwise men- tioning the amended law, since the provi- sion of the constitution requiring such re- cital does not apply to repeals or amend- * Constitutionality of fence law, see note, 22 Am. & Eng. R. Cas. 564. inents resulting from necessary i.-nplication. Illinois C. R. Co. v. Crider, 56 Am. &* Eng. R. Cas. 157, 91 Tenn. 489, 19.V. /F. Rep. 618. 4. liicoiisisteucy between act and title. — Where the subject expressed in the title of a statute is the provision of "a means for the collection of claims for cattle and other stock destroyed by railroad," and the body of the statute declares or creates an absolute liability which did not exist prior to its passage, such new liability is not within the subject expressed in the title, and to this extent the statute is inoperative under section 14 of article 4 of the Consti- tution of Florida. Savannah, F, &* W, R. Co. v. Geiger, 29 Am. 6- Eng. R. Cas. 274, 21 Fla. 669, 58 Am. Rep. 697. The Indiana act of March i, 1853, en- titled " an act to provide compensation to the owners of animals killed or injured by the cars of any railroad company," is not void for inconsistency with its title, on the ground that it excepts railroads that are fenced, nor because the act is special; but the third section is unconstitutional, so far as it inflicts a penalty for appealing a suit and failing to reduce the judgment 20 per cent, Madison &* I. R. Co. v. IVhiteneck, 8 Ind.2 17.— Distinguished in Jefferson- ville R. Co. V, Martin, 10 Ind. 416. Fol- lowed IN Lafayette & I. R. Co. v. Mar- tin, 8 Ind. 251 ; Madison & I. R. Co. v. Burnett, 8 Ind. 277; Jeflersonville R. Co. V. Hardy, 9 Ind. 495. 5. Embracing more than one sub- ject. — The Kentucky act to amend the charter of the Louisville and Frankfort Rail- road Company, approved Feb. 23, 1856, pro- vided in section 6 that for all damages done to stock or other property injured or killed by its locomotives or trains of cars running on its road, when the same is done by its carelessness or the carelessness of its agents and employes, and in section 7, that " ac- tions for injuries to stock and other prop- erty on said road by the company or its agents must be brought within six months after such injury." Said act, defining the liability and limitation, is constitutional, and relates to but one subject, and that is clearly expressed in the title. O'Bannon v. Louisville, C. &* L. R. Co., 8 Bush {Ky.) 348. When the object of an act is to subject railroad companies operating unfenced tracks to absolute liability for al! damages resulting from their unfenced condition, there can be no constitutional objection to 00 ANIM.\I. 618. The title of the VVashiii>,'ton act of 1883, being " An act to secure to the owners of live stock payment of the full value of all animals killed or maimed by railroad trains," sections i and 8 are not invalid, as embracing more than one object not suf- liciriitly expressed in the title. Dacres v. Oregon A'. &^ N. Co., i IVits/i. 525, 20 Pac. Ki'p. 601. KS. Iiii|mm1ii(; ahsoliito liability.'*'— (1) Generally. — The Indiana statute mak- ing railroad companies absolutely liable for injuries to animals, withoi t proof of negli- gence, where the road is not fenced, is in the nature of a police regulation for the security of the public and the preservation of human life. Indianapolis &^ C. R.Co. v. rarktr, 29 I ml. 471. (2) What have been held constitutional. — The fact that the statute makes railroad companies liable for losses not resulting from their negligence, and thus imposes upon them a liability that is not imposed upon other citizens, does not render it un- constitutioi'.al. Since extraordinary rights and privileges are granted such corpora- tions, they cannot complain of the liabilities which attach. Louisville &* N. R. Co. v. Belcher, 40 Am. sfii(«: of iniy law rc(iuiiing siitli roads to fence their tracks. liulenht'r^; v. Mo/.tiuiii Union A'. Co., j8 ///«. &^ Iji^. A'. Ciis. 275, 8 il/rw/. 271, 2 /.. A'. A. 813, 20 /'<«(. AV/. J14. — DisriNtiuisuiNc; Thorpe 7'. Rutland fi \\. R. Co., 27 Vt. 140, 62 Am. Dec. 625 ; Riiiiemacher?', Milwaukee & St. P. R. Co., 41 luwa 302; Ohio & M. R. Co. 7', McClelland, 25 111. 123; Uiamoiid v. Northern Vac. R. Co., 6 Mont. 580. Fol- lowing Cairo it F. R. Co. v. Parks, 32 Ark. 131 ; Zeigler?'. South & N. Ala. R. Co., 58 Ala. 595; Ohio & M. R. Co. 7-. Lackey, 78 111. 55, 20 Am. Rep. 259.— FoLLowKU in Jensen T. Union Pac. R. Co., 6 Utah 253. I. lah Coinp. Laws of 1888, § 2349, mak- ing railroad companies absolutely liable fur all live stock killed, is in conflict with the lUih amendment of the constitution of tlie United Stales, as taking property without due process of law. Jensen v. Union Pac. M, Co., 6 Utah 253, 21 Pac, A\f>. 994.— F» Eng. R. Cas. 145, 18 Co/o. 600; 33 J'ac. Rep. 515.— Re- viewing Denver & R. G. R. Co. v. Hen- derson, 10 Colo. I. The meaning of sections i and 2 of "An act to provide ;\ means for the collection of claiujs for cattle and other stock destroyed by railroads" (chapter 2060, Acts of Florida, 1875), is that the "affidavit of the owner or some other person acquainied with the stock killed or maimed " shall be conclusive evidence of the amount of damages sus- tained by the owner, and such provision is void as not providing due process of law. Savannah, F. &* IV. R. Co. v. Geiger, 29 Am. Sf Eng. R. Cas. 274, 21 J'7a. 669, 58 Am. Rep. 697. 8. appraiseiiicnt of damages without a jury.— Where the failure to fence a railroad is made conclusive evidence of negligence whenever live stock is killed upon such unfenced road, the statute is not unconstitutional by reason of making the valuation fixed by a board of appraisers prima facie evidence of the value of the stock killed, since the report of the apprais- ers might be contradicted and set aside. Illinois C. R. Co. v. Crider, 56 Am. &' Eng. R. Cas. 157, 91 Tenn. 489. 19 S. IV. Rep. 618. But a statute making such an appraisement conclusive evidence as to damages is uncon- stitutional. Graves v. Northern Pac. R. Co., 19 Am. &• Eng. R. Cas. 436, 5 Mont. 556, 51 Am. Rep. 81. A law which imposes a liability for stock killed provides for notice of the claim, the ap- praisal of dainay;es and action for the amount awarded, contains conditions wliich are not , i, ANIMALS, INJUKIKS TO, ». m sepanible, ihc right conferreil bcitig depend- ent upon notice and appraisal, and when such statute violates the constitution by de- nying a trial by jury the wh» Eng. R. Cas. 550, i iras//. 206, 23 Pac. Rep. 1008.— OVERRUi.- IN(; Dacres v. Oregon R. & N. Co., i Wash. 525, 20 Pac. Rep. 60!. Act Washington Territory 1883, §§ 2-7, providing that when stock is killed on a railroad the value shall be ascertained by appraisers in a prescribed manner, and the amount shall thereupon become due and payable, are unconstitutional as denying the right of jury trial. Dacres v. Oregon R. &* N. Co., I IVas/i. 525, 20 /'tie. Rep. 601. O. Allowing a reasonable attor- ney's lee.— (I) What have been held con- stitutional. Statutes allowing such fees are constitutional. Peoria, D. (S^ E. R. Co. v, Diiggan, 20 Am. &» Eng. R. Cas. 489, 109 ///. 537, 50 Am. Rep. 619. Perkins v. St. Louis, I. M. &• S. R. Co., 103 Mo. 52, IS 5. IV. Rep. 320. — Not following Wilder v. Chicago & W. M. R. Co., 70 Mich. 382; Rinear v. Grand Rapids & I. R. Co., 70 Mich. 620. — Wabash, St. L. &* P. R. Co. v. Lavieux, 14 ///. App. 469. — Followed in Wabash, ?c. L. & P. R. Co. V. Murphy, 14 111. App. 472. A provision making a company liable for an increase of damages to the extent of all reasonable attorneys' fees, in the event that it shall unsuccessfully litigate its liability for such "prima facie value established by the said appraisers," is not unconstitutional as imposing a burden upon one class of liti- gants in favor of another, since this leg- islation is intended to a nipel railroad companies to fence their tracks and is within the police power of the state. Illinois C. R. Co. V. Crider, 56 Am. S-» Eng. R. Cas. 157, 9! Tenn. 489, 19 S. W. Rep. 618. Texas act of 1889, ch. 107, § i, providing that where a claim not exceeding $50 for stock killed by a railway is not paid within 30 days after being presented, the plaintiff may recover, in addition to the damages, an attorney fee not exceeding $10, if an attor- ney be employed, does not violate the state constitution (art. 3, § 56) prohibiting special laws relating to the collection of debts, or in all cases where a general law is applicable ; nor does it violate the provision of the constitution, that property, etc., shall not be taken without due process of law. Gulf. C. (^ S. F. R. Co. V. Ellis (7V.r.), 49 Am. d~ Eng. R. Cas. 509. 18 S. W. Rep. 723.— RE- VIEWING International cS: G. N. R. Co. v. Cocke, 64 Tex. 151 ; International & G. N. R. Co. V. Dunham, 68 Tex. 231. Neither is such law so opposed to the principles of republican government, and so discriminating in its character, as to take away from the legislature the power to pass it. Gulf, C &* S. F. R. Co. V, Ellis (7V.r.), 49 Am. Sa* Eng. R. Cas. 509, 18 S. IV. Rep. 723- Texas act of April 5, 1889, allowing the recovery of an attorney's fee, not to exceed $10, in addition to the other damages, in ac- tions against railroads for the killing of live stock, where the claim does not exceed $50, is not unconstitutional, as discriminating unjustly against railroads ; neither is it un- constitutional as discriminating between liti- gants. Gulf, C. &* S. F. R. Co. V. Ellis ( Te.r. Civ. App.), 21 S. W.Rep.g^:^. — Explaining Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. Rep. 207. (2) What have been held unconstitutional. — The Alabama act of Feb. 3, 1877, § 6, allowing an attorney fee not to exceed $20, to be taxed as part of the costs against the unsuccessful appellant in every suit against a railroad for stock killed, is un- constitutional. South &> N. Ala. R. Co. v. Morris, 65 Ale. 193.— REVIEWED IN Chi- cago, St. L. & N. R. Co. V. Moss, 20 Am. & Eng. R. Cas. 555, 60 Miss. 641. An act of the legislature providing that where 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, and shall not recover a more favorable judg- ment than the award, such party shall be assessed a reasonable attorney's fee for the opposing litigant, is unconstitutional. St. Louis, I. M. iS«» S. R. Co. v. Williams, 49 Ark. 492, 31 Am. &* Eng. R. Cas. 555, 5 S. W. Rep. 883.— D1STINGUI.SHED IN Illinois C. R. Co. v. Crider, 91 Tenn. 489. A law which provides for recovery of a reasonable attorney's fee in case of failure to pay the appraised value within the time pre- scribed, is void. Denver &^ R. G. R, Co. v. Outcalt, 2 Colo. App. 395. 3' !'<'<■'• I^^P- I77-— Approving Ziegler v. Alabama R. Co., 58 Ala. 594; Rinear v. Grand Rapids & I. R. Co., 70 Mich. 620; Cairo & F. R. Co. v. Parks, 32 Ark. 131 ; Ohio & M. R. Co. v. ANIMALS, INJURIES TO, 10-12. 93 Lackey, 78 111. 55; Jensen z>. Union Pac. R. Co., 6 Utah 253, 21 Pac. Rep. 994; Bielen- burg V. Montana Union R. Co., 8 Mont. 271, Distinguishing Union Pac. R. Co. v. De Busk, 12 Colo. 294. Quoting Denver & R. G. R. Co. V. Henderson, 10 Colo. i. — Denver H^ R. G. R. Co. V. Davidson, 2 Colo. App. 443, 31 Pac. Rep. 181. Lafferty v. Chicago &* W. .]/. R. Co., 71 Mic/i. 35. Sc/iiif V. Chicago &* IF. M. R. Co., 70 A/ich. 438. IFiMer v. Chi- cago &' IV. M. R. Co., 35 Am. &> Eng. R. Cas. 162, 70i1//Vr//. 382, — Distinguished in Illi- nois C. R. Co. V, Crider, 91 Tenn. 489. Not FOLLOWED IN Pcfkins V. St. Louis, I. M. & S. R. Co., 103 Mo. 52. The Railroad Stock Killing act of Colo- rado (Gen. Sts. §§ ?3 & 14, ch. 93) and the amendments thereto, allowing an attorney's fee in actions for live stock killed or injured by railroad trains is unconstitutional. Rio Grande &> N. R. Co. v. Vaughn, 3 Colo. App. 465. 10. Allowing double damages.— Statutes allowing double damages for killing or injuring stock are void. Atchison &• N, R. Co. V. Ba/y, 6 IVeb. yj. — Distinguished IN Cairo & St. L. R. Co. v. Peoples, 92 111. 97 ; Harnett v. Atlantic & P. R. Co., 68 Mo. 56. Referred to in Burlington & M. R. Co. V. Webb, 23 Am. & Eng. R. Cas. 617, 18 Neb. 215. Denver &^ R. G. R. Co. v. Outcalt, 2 Coh. App. 395, 31 Pac. Rep. 177. — Approv- ing Zeigler 7/. Alabama R. Co., 58 Ala. 594; Cairo & F. R. Co. v. Parks, 32 Ark. 131 ; Ohio & M. R. Co. V. Lackey, 78 111. 55 ; Jen- sen v. Union Pac. R. Co., 6 Utah 253, 21 Pac. Rep. 994 ; Bielenburg v. Montana Union R. Co., 8 Mont. 271 ; Schut v. Chicago & W. M. R. Co., 70 Mich. 433 ; Rinear v. Grand Rap- ids & I. R. Co., 70 Mich. 620. Distinguish- ing Union Pac. R. Co. v. DeBusk, 12 Colo. 294. Quoting Denver & R. G. R. Co. v. Hi^nderson, loColo. i. Reviewing Wilder V. Chicago & W. M. R. Co., 70 Mich. 382. Denver &* R. G. R. Co. v. Davidson, 2 Colo. App. 443, 31 Pac. Rep. iSi. — Following Denver & R. G. R. Co. v. Outcalt, 2 Colo. App. 395. 3' Pac. Rep. i"-'. Rio Grande &^ N. R. Co. V. Vaughn, 3 Coir. App. 465. A statute requiri.ig all railroads to main- tain fences and cattle-guards along the line of their roads, and making them liable for double damages for stock killed by reason of a failure to do so, does not deprive a com- pany of its property without due process of law. nor deny it the equal protection of the law, within the meaning of the 14th amend- ment of the U. S. Constitution. Missouri Pac. R. Co. V. Humes, 22 Am. &> Eng. R. Cas. 557, 115 U. S. 512, 6 Sup. Ct. Rep. no. — Applied in Goodridge v. Union Pac. R. Co., 35 Fed. Rep. 35 ; Marshall v. Wabash R. Co., 46 Fed. Rep. 269. Approved in Illinois C. R. Co. v. Ciider, 91 Tenn. 489. It is competent for a legislature to make railroads liable to owners of stock killed by reason of the company's failing to fence, in damages double the value of the stock. The damages above the actual value of the stock are regarded as a penalty, and it rests in the discretion of the legislature to say that they shall go to the property owner instead of the state. Missouri Pac. R. Co. v. Humes, 22 Am. <&- Eng. R. Cas. 557, 115 U.S. 1x2,6 Sup. Ct. Rep. 1 10. — Following Milwaukee & St. P. R. Co. v. Arms, 91 U. S. 489. Such laws held constitutional. Memphis &* L. R. Co. V. Horsfall, 36 Ark. 65 1 ; Mackie V. Central R. Co., 54 Iowa 540. — Followed in Mundhenk v. Central R. Co., 1 1 Am. & Eng. R. Cas. 463, 57 Iowa 718. Welsh v. Chicago, B. 6^ Q. R. Co., 53 Iowa 632, 6 N. W. Rep. 13. Tredway v. Sioux City 6>» St. P. R. Co., 43 Iowa 527. Jones v. Galena &* C. U. R. Co., 16 ^ywad. P/iillipsw. Missouri Pac. R. Co., 24 Am. &^ Eng. R. Cas. 368, 86 Mo. 540. Hines v. Missouri Pac. R. Co., 28 Am. &* Eng. R. Cas. 382, 86 Mo. 629. Humes v. Missouri Pac. R. Co., 82 Mo. 221.— Fol- lowed IN Meyers v. Union Trust Co., 82 Mo. 237 ; Burkholderz/. Union Trust Co., 82 Mo. 572 ; Steele v. Missouri Pac. R. Co., 84 Mo. 57. Spealman v. Missouri Pac. R. Co., 71 Mo. 43. Cummings v. St. Louis, I. M. <&» S. R. Co., 70 Mo. 570. Kaes v. Missouri Pac. R. Co., 6 Mo. App. 397. Barnett v. Atlantic &^ P. R. Co., 68 Mo. 56. Minneapolis 6- St. L. R. Co. V. Beckwith, i%Am. &*Eng.R. Cas. 267, 129 U. S. 26, 9 Sup. Ct. Rep. 207. 11. Iiiiposiug a criminal liability for killing stock.— The North Carolina Code, §§ 2327-2330, making killing of live stock by railroads in certain counties a crime, and subjecting the president and other officers of roads to indictment, for a refusal to pay for or arbitrate claims for stock killed, is unconstitutional. State v. Divine, 31 Am. &^ Eng. R. Cas. 574, 98 A", Car. 778, 4 5. E. Rep. 477.— Quoting San Mateo w. Southern Pac. R. Co., 8 Am, & Eng, R. Cas. 10, 13 Fed. Rep. 145. 2. Interpretation and Effect. 12. Legislative intent.— In the en- I •i m 94 ANIMALS, INJURIES TO, 13-15. actment of the statute touching animals at large (i R. S. of Indiana, p. 102), the legis- lature contemplated the promotion of agri- cultural interests rather than the protection of railroad property. New Albany &• S. R. Co. V. Tilton, 12 Ind. 3.— Quoting United States V. Brig Neurea. 19 How. (U. S.) 95. ^-FOLLOVVKU IN New Albany & S. R. Co. v. Mead, 13 Ind. 258. The Indiana statute, making railroad companies liable for animals killed or in- jured by reason of a track not being prop- erly fenced, is a police regulation, and is not intended merely (or the protection of owners of live stock along the line of the road, but is intended also as a security to the persons and property being transported over the road. Jeffersonville, M. Of I. R. Co. V. Nichols, 30 Inil. 32 1 . The Indiana act of March i, 1853 (Acts, p. 113), providing compensation to the owners of animals killed or injured by the cars, etc., of railroad companies, is more for the benefit of the public — to guard against injury to passengers — than for the benefit of the owners of the animals. Ne7u Albany &• S. R. Co. V. Maiden, 12 Ind. 10.— Applied IN Indianapolis, P. & C. R. Co. v. Thomas, II Am. & Eng. R. Cas. 491, 84 Ind. 194. FOLLOWKD IN Hart v. Indianapolis & C. R. Co, 12 Ind. 478; Indianapolis & C. R. Co. V. McAhrcn, 12 Ind. 352 ; Baltimore, P. & C. R. Co. V. Johnson, 59 Ind. 188. Not Fol- lowed IN Locke V. St. Paul & P. R. Co., 15 Minn. 350. Reconciled in Terre Haute & R. R. Co. V. Smith, 16 Ind. 102. The Indiana act of 1863, relating to the liability of railroads for stock killed, where the road is not fenced, must be construed as having been passed with reference to the decisions of the courts construing the act of 1853 upon the same subject, and the court must construe the latter act with reference to the construction placed upon the former, and therefore hold that the act extends to cases where the owner of the stock killed contributes to the injury by permitting his stock to wander upon the track, unless it appear that the owner desired the injury to happen. Jeffersoiwille, M. &* I. R. Co. v. Dunlap, 2<)Iiid. 426. 13. Construing entire statute to- gether.— The liabilities of railroad com- panies in Alabama for the killing or injury of stock by their cars or locomotives are governed by the statute on " Railroads " found in the Revised Code. (Rev. Code, ^§ 1 399-1416, both inclusive.) This statute is to be taken and construed as one law. Nashville &^D. R. v. Cowans, 45 Ala. 437. — Reconciled in Nicholson v. Mobile & M. R. Co., 49 Ala. 205. Under this law a railroad company, in order to exonerate itself from such liabili- ties as are imposed by the statute, must show that the injury complained of did not result from the failure on the part of its servants to comply with the require- ments of § 1399 of the Revised Code, or from any negligence on the part of the company or its agents. Rev. Code, §1401. Nashville &^ D. R. Co. v. Conians, 45 Ala. 437.— Distinguishing Nashville & C. R, Co. V. Peacock, 25 Ala. 229. 14. Statutes iu pari materia.— What are known as the stock laws, embodied in Georgia Code, §§ 1449-54, are not in pari materia with §§ 3033-4, and do not modify or alter the rule of diligence to be observed in the running of trains; but the existence of a stock law in any locality is a fact which the jury may consider, in ascertaining the amount of care and diligence exercised by each of the parties to the transaction, and in apportioning the extent of the liability of the company, if any. Central R. Co. v. Hamilton, 23 Am, &» Eng R. Cas. 207, 71 Ga. 461. 15. Retrospective statutes. — The Georgia act of 1843, amending the act of Dec. 3, 1840, defining the liability of the railroad companies of the state for damages for stock killed or injured, and to regulate the mode of proceedings in such cases, is prospective in its operation, and cannot be applied to cases arising before its passage. Girtman v. Central R. &* B. Co. , i Ga. 173. The Indiana act of 1853, providing for ac- tions against railroads for killing stock, au- thorized suit to be brought before a justice of the peace only, which limited the recov- ery to $100, but by the amendatory act of 1859, if the damage exceeds $50, suit may be brought in the circuit or common pleas court to recover the value of the stock killed or the amount of the injury thereto; but the act of 1859 only applies to suits for animals killed or injured after its passage. Indianapolis &' C. R. Co. v. Kercheval. 16 Ind. 84 —Quoting Indianapolis & C. R. Co. V. Kinney, 8 Ind. 402. The Indiana act of 1859 (Acts 1859, p. 105) is prospective only in its operation, and ap- ANIMALS, INJURIES TO, JO-21. 95 plies to animals killed or injured after the taking effect of the law. Indianapolis &» C. R. Co. V. Elliott, 20 Ittil. 430. In Wisconsin, prior to i860, railroads were not required to fence, but the cost of fenc- ing was to be assessed as part of the dam- ages when the right of way was taken ; and the act of i860, ch. 268, making it the duty of railroads to fence, did not change the liability of railroads as to those whose lands were taken prior thereto, and such owner cannot recover for stock killed by reason of a failure of the company to fence. Johnson V. Milwaukee &* St. P. Ji. Co., 19 IVis., 137. The Indiana act of 1853, making railroads liable for stock killed, and the amendment thereto of March 4, 1859, are constitutional and binding as to corporations chartered before the passage of the acts. Indianapolis &• C K. Co. V. Kercheval, 16 Ind. 84.— Followed in Toledo, W. & W. R. Co. v. Brown, 17 Ind. 353. New York Laws 1854, ch. 282, amending the general railroad act, which requires every railroad corporation whose line is open for use to erect and maintain fences on the sides of its road, and declaring it liable for damages to cattle in case its fences are not made or are out of repair, applies to a foreign corporation wliich had, prior to the passage of said act, under and by virtue of an act of the legislature wherein was re- served a right to alter or repeal, extended its road within this state, so far as such road is opened for use within the state ; and it is liable for cattle killed which came upon its track through a defective fence, although trespassing. Purdy v. Neiv York &> N. it. R. Co.,6i N. y. 353, 12 Am. Ry. Rep. 138. 16. Extraterritorial effect. — The statute of Arkansas, which changed the common law rule by providing that the mere fact of injury or killing of stock by a railroad company shall be prima facie evi- dence of negligence, was not put in force in the Indian Territory by Act Congress, May 2, 1 890, § 3 1 (26 St. p. 8 1 ) . Eddy V. Lafayette, 49 Fed. Rep. 798, 4 U. S. App. 243, I C. C. A. 432. The Kansas act of Feb. 27, 1874, entitled " An act relating to killing or wounding stock by railroads," is in force within the territory of the Ft. Leavenworth military reservation, notwithstanding the act of Feb. 22, 1875, ceding »o the United States juris- diction over saia reservation for military purposes. Chicas^o, R. I. &^ P. R. Co. v. McGlinn, 1 1 Am. &^ Eng. R. Cas. 435, 28 Kan. 274; affirmed in ig Am. &^ Eng R. Cas. 522. 114 U. S. 542, 5 Sup. Ct. Rep. 1005. 17. Particular words eoustriiecl.— A statute giving a remedy for horses and cattle killed by a • lilroad construed to in- clude mules. Toledo, IV. <&* IV. R. Co. v. Cole, 50 ///. 184.— Following Ohio & M. R. Co. V. Brubaker,47 III. 462. Where the statute declares that the said reasonable attorney's fees " shall be fixed by the court trying the case," the word " court " must be construed to mean judge and jury. Illinois C. R. Co. v. Cridcr, 56 Am. &> Eng. R. Cas. 157. 91 Tenn. 489, 19 Ji". W. Rep. 618. 18. Particular statutes— Alabama. — The Alabama act of April 23, 1873, pro- viding a method of selecting three disinter- ested citizens to apjiiaise the value of live stock killed on any railroad, and the method of payment of the damages assessed is not binding on either the railroads or the owners Ml stock, and docs not increase the liability; c.nd if that mode of ascertaining the value is not pursued tlu' statute is inoperative.* Soutk IV. R. Co., 17 Md. 32. 24. Tennessee.— An association to secure to its members compensation for their live stock killed by railroad com- panies, where the members are to share jointly all expenses of litigation, including attorneys' fees, is not illegal under Tennes- see Code, § 2450, to the effect that a plain- tifl shall not agree to give any greater sum of money, or any greater or less portion of the property in litigation, upon ay con- tingency based on the result of the suit. Mobile 6- O. R. Co. v. Etherid^e, 16 Lea (7'^««.)398. 26. Texas. — Under the Texas statutes the liability of a railroad company for killing or injuring stock in operating their trains is/r/;«a/(i«> absolute.* Hous- ton &» T. C. R. Co. V. Loughbridge, 1 Tex. App. {Civ. Cas.) 754. 26. Wasliingtou.— Section i of the Washington act, which makes the rail- road company liable for stock killed on the railroad, is not merely declaratory of the common law, but, as shown by § 8, which re- moves the liability if a proper fence is main- tained, the statute makes failure to fence evidence of negligence. Dacres v. Oregon R. &*N. Co., I Wash. 525, 20 Pac. Rep. 601. 3. Repeal. 27. What operate as repealing statutes.— (i) Alabama. — The Alabama Code of 1876, §§ 1 704-1 709, relating to the liability of railroads for damages for injuries to live stock, are repealed by a later statute embraced in §§ 1710-1715. Georgia Pac. R. Co. V. Fullerton, 79 Ala. 298. (2) Georgia. — The Georgia act of 1847, § 5, defining the liability of the various railroad companies of the state for injuries to live stock, is repealed by the act of 1854. Jones V. Central R. &» B. Co., 21 Ga. 104. (3) Missouri. — The Missouri act of 1879 (Re\'. Stat. ch. 1 59), provides for the restrain- ing of swine. In 1883 (Laws of Mo. 1883, p. 26), the legislature adopted an act which provides for the restraining " of an animal of the species of horse, mule, ass, swine, sheep, or goat." This latter act was intended to regulate the whole subject ; and, on the principle that "a subsequent statute revis- ing the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former," it repealed the act of 1879. Berkshire v. Missouri Pac. R. Co., 28 Mo. App. 225. — Quoted in Crumley v. Kansas City, C. & S. R. Co., 32 Mo. App. 505. (4) Tennessee. — The provisions of the Tennessee Code declaring the liability of railroads for injury to live stock by moving trains are modified, if not superseded, by the provisions of the Acts of i89i,ch. loi. Cincinnati, N. O. &* T. P. R. Co. v. Russell, 92 Tinn. 108, 20 S. W. Rep. 784. 28. What do not operate as re- pealing statutes.— (I) Illinois. — The Illi- nois act of 1867 "to prevent domestic * See ante 6. ANIMALS, INJURIES TO, 29. VI animals from running at large in certain counties" is not so far inconsistent vvitli and repugnant to the general railroad law, re- quiring railroad companies to fence their roads, as by necessary implication to repeal tlie latter ; and where animals escape from their inclosure within such counties, without the fault or knowledge of the owner, and stray upon a railroad track at a point where the company have failed to comply with the law requiring them to fence, and are killed by collision with trains, the company are responsible. O/i/'o &• M. R. Co. v. Jones, 63 ///. 472, 7 Am. Ry. Rep. 477. (2) Indiana. — The Indiana acts of April 8 and 13, 1885, relating to the fencing of rail- road rights of way, do not assume to remove the pre-existing liability of railroad corpora- tions for the failure to fence their roads, and, except so far as farm crossings and gates are co.cerned, the liability of railroad companies for injuring animals on account of the un- fenced condition of the track remains as it was before said acts of 1885 were passed. Louisville, E. &* St. L. R. Co. v. Hart, 2 Ind. App. 130, 28 N. E. Rep. 218.— Quoting Jeffersonville, M. & I. R. Co. v, Dunlap, 112 Ind. 93 —Quoted in Toledo, St. L. & K. C. R. Co. V. Jackson, 5 Ind. App. IM.—Jeffer- sonville, M. &* I. R. Co. v. Dunlap, 31 Am. &> Eng. R. Cas. 512, 112 Ind. 93, 13 TV. £■. Rep. 403. — Followed in Pennsylvania Co. V. McCarty, ti2 Ind. 322. Quoted in Louisville, E. & St. L. R. Co. v. Hart, 2 Ind. App. 130; Wabash R. Co. v. Williamson, 3 Ind. App. 190. The act of April 8, 1885 (Indiana Acts 1885, p. 148), providing for the construction s:A maintenance of farm crossings by the owners of tracts of land separated by a rail- road, and the erection and maintenance of gates if the road is fenced, does not repeal the law rendering railroad companies liable for stock killed or injured by their cars where they do not securely fence in their railroads. Louisville, N. A. St. J. R. Co., 33 Mo, 309.— Approved in Atchison, T. & S. F. R. Co. V. Walton, 3 N. Mex. 319. Followed in Dyer z/. Pacific R. Co., 34 Mo. 127 ; Cal- vert V. Hannibal & St. J. R. Co., 38 Mo. 467. The leading principle of the numerous cases in reference to the liability of railroad companies for injuries to domestic animals, is that such liability is founded only upon negligence or omission of duty on tlie part of the company. Walsh v. Virginia &* T. R. Co..SNev. no. Where the owner of live stock sues a rail- road company for an injury thereto, and the issue is made whether the injury is the re- sult of the carelessness or negligence of the con-ipany, there must be sufficient evidence to establish this issue before the jury can find a verdict for the plaintiff. New Orleans, * See important notes on injuries to animals on track, 19 Am. & Eng. R. Cas. 465; 31 / t.\ Central Branch R. Co. v. Lea. 20 • , . ,,-; A railroad company, under 8 i' - :, of the Missouri railroad act, is liubl. 'V*v a failure to perform statutory duties, .arrf- less of any other proof of negligence. Cal- lins V. Atlantic &* P. R. Co., 65 Mo. 230. 32. Necessity of showing negli- gence in tlie absence of statutory duties.— Prior to the Indiana act of 1859 railroad companies were not liable for kill- ing stock, except where the killing was through negligence and without immediate fault on the part of the plaintiff. Wright v. Indianapolis &* C. R. Co., \% Ind. 168. In the absence of laws requiring railroad companies to fence their tracks, there must be proof of negligence in order to charge the company for injuries to live stock. Robinson v. Si. Louis, I. M. &* S. R. Co., 2t Mo. App. 141. * See ante, 6 ; post, 126, 238, 281. ANIMALS, INJURIES TO, 33, U4. 99 33. OP where statutory duties have beeu pcrforined.— If the company or its agents are not guilty of any negli- gence, and comply with the requirements of section 1399 of Ala. Rev. Code, then the company will not be liable for stock killed or injured by its trains or locomotives while engaged in its legitimate business. Nash- ville &* D. R. Co. v. Comans, 45 Ala. 437.— Overruled in Gothard v. Alabama G. S. R. Co.. 67 Ala. 1 14. Two of plaintiff's horses having by some means got on defendants' track were killed by a locomotive, for which plaintiff brought his action. Held, that the legislature having appointed certain measures to be adopted for the protection of property from the loco- motives of defendants, and those measures having been fulfilled by defendants, they were not liable for the damage done with- out showing something more than ordinary in the running of the train. Auger v. On- tario, S. &> H. R. Co., 9 U. C. C. P. 164. 34. Proximate cause, generally.*— (I) Company's negligence must be the cause. — A railroad company is not liable for injur- ing live stock, on proofs showing that those in charge of the train were guilty of some negligence, if it appear that such negligence did not in any way contribute to the injury. East Tenn., V. &- G. R. Co. v. Bayliss, 22 Am. ge of the section, that the company is not liable because the train might be run- ning in a manner forbidden by law, but that the injury might be shown to have been caused by a failure to comply with the law. Western &* A. R. Co. v. Main, 64 Ga. 649. —Distinguished in Smith v. Central R. & B. Co., 41 Am. & Eng. R. Cas. 490, 82 Ga. 801, 10 S. E. Rep. in. (2) niustrations. — "The death of cattle is the proximate result of the negligence of a railway company if, owing to such negli- gence, they are separated from the drovers, become frightened, and rush down a road through a defective fence into an orchard, and from thence on to the track, ."Ithough it was the duty of a third person to keep the orchard fence in repair. Sneesby v. Lancashire &* V. R. Co., L. R. i Q. B. Div. 42. 33 L. T. N. S. 372, 45 L. /. Q.B. I ; affirming L. R. 9 Q. B. 263, 43 L. /. Q. B. 69, 30 L. T. N. S. 492. Where a train wrongfully obstructed a street-crossing and thereby prevented live stock from passing, such obstruction was not the proximate cause of the injury which resulted from another train which injured the stock, standing on another track. Brown v. Wabash, St. L. C. R. Co. V. Elliott, 4 Ohio St. 474-— Followed in Central Ohio R. Co. v. Law- rence, 13 Ohio St. 66. A team of horses was killed by a moving locomotive on a railroad track about a mile from the highway and about five miles from where they took fright, by the sleigh to which they were hitched being overturned by an ash-heap in the highway. In an action i i 100 ANIMALS, INJURIES TO, 35-38. by tlie owner of the liorses against the town- ship to recover the value of the horses, — held, that the negligence of the township, if any, was not the proximate but tlie remote cause of the killing of tlie horses, and there- fore there could be no recovery. Township of West Mahanoyy. W'ntson, 112 Pa. St. 574, 3 Atl. Rep. 866. The fi iyhteniiig of a horse at laigc in a highway, so that he jumps over the cattle- guards and runs along a railroad track, gets tangled in a bridge, and is thereby injured, is not the proximate cause of the injury or a basis of recovery. Lynch v. Xorthern I'ac. K. Co., 84 It'/s. 34S, 54 ^V. IV. Kep. 610. 3.N Failure to v^\^^ .sif^iials as the |>ru.\iiuute cause.*— The liability of a r,iilrf>;ul company for stock killed cannot be csiai/lishcd by proof that the whistle was nut sounded and tlie bell not rung, unless it a;)pear that the killing was caused by such l.iilure. Peoria, D. Ssf E. li. Co. v. Aten, 43 ///. App. 68. St. Louis, V. . T. H. P. Co. v. Hurst, 25 ///. App. 181. C u'cago, B. &* Q. P. Co. v. /ones, 19 III. App. 648. Terre Haute 6- /. P. Co. v. Jenuine, 16 ///. App. 209. Terre Haute &» I. P. Co. v. Tuter- wiler, 16 ///. App. 197. Quincy, A. (S>» St. L. P. Co. V. VVellhoencr, 72 ///. 60.— DlSTiN- <;uiSHiNG Chicago «& N. W. R. Co. v. llarrie, 55 111. 226. — Leavitt v. Terre Haute G^ /. A'. Co., s Ind. App. 513, 31 iV. E. Pep. 860, 32 N. E. Pep. 866.— Following Penn- sylvania Co. V. Hensil, 70 Ind. 569; Stone*- man v. Atlantic & P. R. Co., 58 Mo. 503. 30. Illc{;al rate of .speed as the proximate cause.t— It is not enough to constitute negligence that the speed of a running train sliould be greater than the prohibited rate, unless it also appears that such illegal and negligent speed was the cause of the injury complained of. Harlan v. IVabask, St. L. IV. P. Co., 40 Am &• Eng. P. Cas. 178, 104 A^. Car. 365, 10 S. E. Pep. 516. The first and paramount object of the at- tention of the agents of a company is due regard for the safety of the persons and property in their charge on tlie train, for which they are held to a high degree of *See/w/, 60,07. ANIMALS, LNJUKltS TO, 3I>. 101 care; and, su fur as consistent with this par- amount duty, they are bound to the exercise of what, in that peculiar business, would be ordinary and reasonable care to avoid un- necessary injury to animals casually coming upon the uninclosed road; and fur any in- jury to animals arising from a neglect of such care the company is liable in damages to the owner. Kerwhacker v. Cleveland, C. &- C. A'. Co., 3 0/uo S/. 172. The first duty liiat an engineer has to consider when observing trespassing stock on the track is tlie safety of the passengers and property that he may be transporting, and the next is to secure the property of the company from damage, and sub- ordinate to these duties he is required to use ordinary means to prevent injuries to the stock ; but the owner of trespassing stock has no right to expect that it will be protected, unless it can be done consist- ently with these higher obligations. Bemis v. Connecticut 6- P. R. R. Co., 42 Vt. 375. The employes of a railroad company in charge of a passenger train have the legal rijjht to pursue such a course, in respect to cattle found on tlie track, without right, as a proper regard for the safety and protec- tion of the persons and property in their cluirge may require. The owner has no ri)j;lit to expect his property to be protected, unless it can be done consistently with the higher obligations resting on the company ; and that railroad companies may be left to a full and proper discretion in pursuing the course which will best fulfil their important duties to the public, their acts in this respect should receive a favorable construction. Cranston v. Cincinnati, H. &* D. R, Co., i Handy (Ohio) 193. In the running of a railroad train, the em- ployes must regard the safety of the passen- gers and the property of the company, as well as dangers to cattle and persons on the track, and the question of negligence is in- fluenced by these considerations; but it cannot be said that a railroad company is liable only for gross negligence in the kill- ing of a horse on its track by a train of cars, or for wanton negligence or wilful miscon- duct. Simkins v. Columbia &* G. R. Co., 19 Am. dr' Eng. R. Cas. 467, 20 So. Car. 258.— Quoted in Harmon v. Columbia & G. R, Co., 32 So. Car. 127, 10 S. E. Rep. 877. In an action against a railroad company for killing live stock, an instruction is erro- neous which exacts the same degree of care from railroads to avoid injuries to live stock that ihey arc required to exercise in the pro- tection of passe nge'<« Railroad companies are only bound to exercise ordinary care as toward live stock, but are bound to extraor- dinary care for the protection of passengers. Sandham v. Chicago, R. I. &* P. R. Co., 38 loTva, 88. The operators of a railroad train have an unqualified right to carry a headlight upon the train at night, when necessary for th; safety of the lives and property embarked upon the train, and it is error to instruct a jury that such right depends upon its exer- cise not endangering cattle that stray u^on the track. Bellefontaine &* I. R. Co. v. Schruyhart, 10 Ohio St. 116.— R: viewed IN Pittsburgh, Ft. W. & C. R. Co. v. Maurer, 21 Ohio St. 421. 39. Duty with respect to iiiaclii- uery, uiipUaiices, etc.— (1) Generally. — Railroad companies are only held to reason- able care for a prevention of injuries to live stock, and an instruction is erroneous which tells the jury that such companies are liable for stock killed through lack of the " best appliances " for the management of trains. Natchez Eng. R. Cas. 518, 61 Miss. 434. (2) Brakes. — A failure on the part of a company to provide its cars with proper brakes will make it liable for stock killed, by reason of the use of such brakes. Forbes v. Atlantic «S«» X. C. R. Co., 76 A'. Car. 454, 14 Am. Ry. Rep. 313. — Followed in Winston V. Raleigh & G. R. Co., 19 Am. & Eng. R. Cas. 516, 90 N. Car. 66. A railroad company is not liable for kill- ing live stock while a train is on a descend- ing grade, where the employes use all proper diligence to avoid it, by reason of the com- pany failing to have air-brakes. Bartley v. Georgia R. Co., 60 Ca. 182. Railroad companies are only required to use that reasonable care that a prudent man would use under the same circumstances to avoid injuring animals ; therefore companies are not required to provide air-brakes and a larger corps of em- ployes and to exercise the " utmost care " to prevent injuries to the animals. Cantrellv. Kansas City, M. ■ '.I ? i! I; I [ r: ►■'■ I U 4 urz ANIMALS, INJUKIliS TO, 40-43. 1 Hi il company liable, sinim/y v. Louisville ^ X. A'. Co. (Ay.). 2 i'. W. AV/. 899. The pluiiiiitl s cuw was killed by delend- aiu's freight iraiii, uiid in a suit for dam- ayes for ilic injury llic enj{ineer tesii- licd iliat the train was running I'lfteun miles an hour, at night, and hy means of the iiead- light a cow could be seen seventy-live yards in advance ; that he discovered the animal at that distance, i)lew on brakes, but could not possilily stop the train and avoid the accident. Tiie judge charged the jury that the company should provide such appliances as would enable the engineer to stop the train within the distance mentioned ; and if not furnished, then it was the defendant's duty to so slacken the speed that the train could be stopped within that distance. '/lid, error. The company cannot he lield to so rigid a rule of accountability where, as here, every reasonable precaution was usefl. ll'inslon V. Kaleigh Gr» G. R. Co., 19 Am. Sr* Kiig. R. Ciis. 516, 90 A^. Car. 66.— Follow- ing Montgomery 7'. Wilmington & W. R. Co., 6 Jones 464; Proctors. Wilmington & W. R. Co., 72 N. Car. 579; Forbes ?'. Atlantic & N. C. R. Co., 76 N. Cir. 454. Quoting D )g,'(;tt 7A Richmond & D R. Co., Si N. Car. 459. -F.)i,i,owKii IS Sciuvell 7'. Raleigh & A. R. C )., lo'i N. Car. 272, lo S. E. Rep. 1045. (3) Siimbcr an I skifl of iii,'i.> in c/iar^f of train. —Trains shiuld be provided with nien of reasonable skill an! jiuigmcnt, and they are required to exercise that skill and judg- ment to avoid injuring cattle on the track, but they are always to act with n;ference to the safctv of the train and p;'ssenj:;ers. Par- ker V. Dubuque S. IV. R. Co., 34 /owa 399, 5 .////. Ry. Rep. 513. But companies are only required to man and equip their trains with trainmen in such a manner and by the use of such care as a pr.ident man would use under like circum- stances. Cantrell v. Kansas City, M. iS^ B. R. Co., 69 Miss. 435, 10 So. Rep. 580. 4kO. Effect of leaving: cotton seed, salt, etc., on or near track.— (i) Cotton seeii.—U a railroad company permits cotton seed to accumulate about its track it must use ordinary care to prevent injuring stock that may be attracted to the track by the seed. Little Rod N. R. Co., 75 Mo. 518. Brfftvn v. Han- nibal &- .!>•/. /. R. Co., 27 Mo. App. 394. Morrow v. Hannibal &* St. J. R. Co., 29 Mo. A '>p. 432. Crafton v. Hannibal St* St. J. R. Co., 55 Mo. 580. Where salt has been left exposed under a warehouse on the right of way of a railway company and near its tracks, the company cannot avoid liability in consequence thereof by mere proof that the warehouse belongs to a third party. Burger v. St. Louis, K. &* N. IV. R. Co., 52 Mo. App. 1 19. 41. Lialiility where froiinded ani- mal is killed by its owner.— A railroad company is liable as for killing an animal, where it is wounded so badly by the train that It cannot recover, and the owner kills it to put it out of sufTering. Atchison, T. St* S. F. R. Co. V. Ireland, 19 Kan. 405. 42. Liability where company is itself a trespasser.* — Where a railroad company, without acquiring the right of way, constructs and operates its road *See/<'^/, 43-60, 134, 152, 150. ANIMALS, INJURIES TO, 43,44. 103 thruugli the land oi aiiuthcr, and one of its engines runs against and injures one of his cows on such land, it is prima facie a tres- passer, and liable for killing the cow. Mathews v. St. Paul &* S. C. R. Co., i8 Minn. 434. 2. Animals Trespassing or Straying- upon Track.* a. Irrespective of Owner's Duty to Inclose Stock. 43. What auiiiialH are considered U8 treHimMHiiitf.t— A vote of a town in pur- suance of statutory authority, making live stock free commoners, does not authorize the grazing of such stock on the grounds of a railway company, such grounds not being a public highway nor a public common. Williams v. Michigan C. K. Co., 2 Mich. 259. Where cattle enter from a highway, where it crosses a railroad, on to the track of such railroad, such entry is a trespass, although there is no obstacle to prevent such entry, and the town has made regulations requir- ing fences of a particular kind, and allow- ing cattle to run at large on the highways. Tonawanda R. Co. v. Munger, 5 Den. {N. V.) 255. A railroad company is not liable for neg- ligently running an engine upon and killing the cattle of the plaintitT, which had come from the highway upon the track of the railroad, though there was no physical ob- stacle to prevent their entry, such entry be- ing held to be a trespass. TonawanJa R. Co. v. Munger, 5 Den. (N. Y.) 255.— Dis- tinguished IN Bostwick V. Minneapolis & P. R. Co., 2 I*. Dak. 440. Followed in Louisville & F. R. Co. v. Ballard, 1 Mete. (Ky.) 177; Williams v. Michigan C. R. Co., 2 Mich. 259; Corwin 7/. New York & E. R. Co., 13 N. Y. 42 ; Clark v. Syracuse & U R. Co., II Barb. (N. Y.) 112. Not Fol- lowed IN Washington v. Baltimore & O. R. Co., 17 W. Va. 190. Quoted in Chi- cago, B. & Q. R. Co. V. Johnson. 8 Am. & Eng. R. Cas. 225, 103 III. 512 ; Pittsburgh, C. * Obligation of company to avoid injuring and liability for killing stock trespassing on track, see notes, 40 Am. & Eng. R. Cas. 173 ; i I.. R. A. 449 ; 49 Am. Dec. 261. i 'ability for trespasses of animals at com- mon law, and as affected by agreement, by pre- scription, and by statutes requiring fences, see very full note, 49 Am. Dec. 248. tSee/o^/. 54, 134, 152-159. & St. L. K. Co. V. Stuart, 71 Ind. 500; Louisville & N. R. Co. v, McCoy, 81 Ky. 403. Reviewed in Terry v. New York C. R. Co., 22 Barb. (N. Y.) 574; Bow- man V. Troy & B. R. Co., 37 Barb. (N. Y.) 516; Tower V. Providence & W. R. Co., 2 R. I. 404- When animals get upon the track away from any public crossing, and at a point where defendant's servants were not re- quired to anticipate the presence of stock, they are mere trespassers, and defendant is only bound to use ordinary care to pro- tect them after discovering their perilous condition, and the burden of proving want of such care rests upon the plaintiff. Jcwett V. Kansas City, C. &• S. R. Co., so Mo. App. 547. Railroad companies are not required to fence where their tracks pass through un- occupied lands, and cattle entering the track from such unoccupied lands are tres- passers, and the company will not be liable for an injury, where it was without negli- gence on the part of those in charge of the trains. McMillan v. Manitoba &* N. JV, R. Co., 4 Man. 220. In the absence of recklessness a railroad company is not liable for a horse killed which has gone from a highway to the track by reason of there not being a cattle-guard, though the corporation is bound 10 main- tain one at the place, as such horse is a trespasser. Darling v. Boston &* A. R. Co., 121 Mass. 118.— Distinguished in Bost- wick V. Minneapolis & P. R. Co., 2 N. Dak. 440. Quoted in Boyle v. New York, L. E. & W. R. Co., 39 Hun (N. Y.) 171. Where a railroad maintains proper fences and cattle-guards the owner of cattle that go upon the track from adjoining lands will be charged with negligence, and the cattle treated as trespassing, though there is no actual carelessness on the part of the owner in allowing them to go upon the track. Fisher v. Farmers' L. 6- T. Co., 21 Wis. 73. — Distinguishing Dunnigan v. Chicago & N. W. R.Co., 18 Wis. 28; Brown v. Mil- waukee & P. du C. R. Co., 21 Wis. 39. 44. aud what are not. — The owner of cattle is not rendered liable for trespass by allowing them to go upon a rail- road where it is unfenced, at private cross- ings or at other places where such right arises by a general use, with the implied as- sent of the company resulting from the clear knowledge of such use and the failure to 4 104 ANIMALS, INJUKiliS TO, 45,40. object. Kvans v. Burlhigton ir* M. A'. A. Co., ai Iowa 374. — Foi.U)WiNU Alger v. Mississippi & M. K. Co., 10 luwa 268 ; Bart- lett V. Dubuque & S. C. K. Co., 20 Iowa 188; Russell I'. Hunley, 2o Iowa 219. — DlS- TINUUISKKU IN Coimycrs v. Sioux City & P. R. Co.. 78 Iowa 410, 43 N. W. Rep. 267. Ill Mississippi cattle pasturing upon un- inclosed lands arc not trespassing by going upon an unfenccd railroad track, so as to de- prive the owner from recovering from a rail- road company which kills tlieni. VicisbiiPif &* J. A'. Co. V. /'a//,)fi, 31 M/ss. 156. A horse found upon a railroad track in South Carolina is not a trespasser, not even under the terms of the slock law, where the horse is in its owner's inclosed pasture, through which the railroad has only a right of way. Si/)tAw'/is v. Coliiiii/iia &* G. A'. Co., 19 ///«. ascertain if either party had been guilty of negligence. If the plaintiff saw his cow on the track about train time, or if his cattle were turned upon the lands adjoining the track and were loitering along when near the track, such facts might be evidence of negligence which it was proper for them to consider; and it was proper for the court to refuse to instruct the jury that the company had the exclusive right to use and occupy its track through the farm. Jloiisatonic R. Co. v. IVaterbttry, 23 Conn, loi. — Reviewed in Richmond v, Sacramento Valley R. Co., 18 Cal. 351, The rule that railroad companies have a right to a clear track and the exclusive use of their properly is subject to the qualifica- tion which rests upon all property owners, that they may so use it as not to injure other persons or their property, if it can be avoided by the exercise of reasonable care. New Orleans &* N. E. R. Co. v. Bourgeois, 66 Af/ss. 3, 5 So. Rep. 629. The rule that railroad companies are en- titled to the exclusive use of their tracks must be taken subject to the qualification that they are required to use reasonable skill and care to avoid injuring stock that may go upon the track. Vicksburg nsequcnces of the fail- ure of its agents to observe proper care and vigilance. Kentucky C. R. Co. v. Lebus, 14 Bush (A>.) 518.— FoLLowiNO Padncah & M. R. Co. V. Hoehl, 12 Hush (Ky.) 43. If cattle on the roadbed of a railway were trespassers, and while so trespassing are negligently injured, nevertheless the owner of such cattle would be entitled to recovcr from the railroad company damages for the injury so done. Jones v. Columbia &* G. R. Co., 19 Am. &• En};. R. Cas. 459, 20 So. Car. 249; to the contrary, see Talmadge v. Rensselaer &• S. R. Co., 13 Barb. {N. V.) 493- 48. Degree of care required of conipaiiy.*— (1) Generally. — Where stock are properly runningat large upon commons, and this fact is known to operatives of trains, they must be held to a higher degree of care than when they have their road fenced and have no reason to expect stock will be found on their track. Chicat^o 6r^ A. R. Co. v. Enf^le, 84 ///. 397, 16 Am. Ry. Rep. 490. The fact that defendant's track was not fenced, the law not requiring it, did not im- pose on it, as to cattle unlawfully on its track, the duty of any greater care than if it had been fenced. Locke v. First Div. St. Paul Gf P. R. Co., 1 5 it! inn. 350, {Gil. 283). — Not following New Albany & S. R. V. Maiden, 12 Ind. 10. Though railroad companies do not owe the same care to trespassing stock that they owe to others, yet they are liable where such • See/w/, 58, «2, 110, 141, 180. Measure of care required for animals on the track, see note, 19 Am. & Eno. R. Cas. 480. Servants must use ordinary care to prevent in- jnry, sec note, 19 Am. & Eno. R. Cas. 500. H ■i I 106 ANIMALS, INJURIES TO, -kH. stock is killed through the negligence of their agents, lyalkiir v. Columbia &• G, R. Co., 25 So. Car. 141. The law exacts of railroad companies, . nd other common carriers, in their use of steam power, extraordinary diligence, or " that de- gree of diligence which very careful and prudent men take of iheir own affairs ;" and while there are authorities wuich confine this rule of diligence to the transportation of passengers, sucli is not the law in Ala- bama. Alabama (J. S. Ji. Co. v. Mc Alpine, 15 Am. &> Eiii^. R. Cas. 544, 71 -^^<'- 545-— Followed in Alabama G. S. R. Co. v. Mc- Alpine, 22 Am. & Eng. R. Cas. 602, 75 Ala. "3- (2) Ordinary and reasonable care. — The servants of a railroad company, in operating its trains, are bound to use ordmary care to avoid injury to domestic aninials trespassing on their railroad. Cincinnati &* Z. R. Co. V. Smil/i, 22 0/iio St. 227. The want of ordinary care and diligence will make a railroad company liable for kill- ing live stock on the track, and it is not nec- essary to show that the killing was wilful or wanton. S/iuman v. Indianapolis &" St. L. R. Co., II ///. App. 472. In order to make railroad companies lia- ble for injuries to stock, the facts must show either gross negligence or wilfulness or ma- liciousness. Railroad companies are not held to the highest possible degree of care to avoid injuring stock trespassing on the track. Great Western R. Co. v. Thompson, 17 ///. 131. A railroad company will be liable to the owner of live stock killed on the track if it appears that those in charge of the train co'-ild have avoided the accident by the exer- cise of reasonable vigilance and care. JCen- dig V. Chicago, R. I. &• P. R. Co., igAm. &* Eng. R. Cas. 493, 79 Mo. 207. Railroad companies are required to exer- cise ordinary care in the management of their trains, so as to prevent injuring stock though it may be trespassing on the track. Bostiuick V. Minneapolis &* P. R. Co., 49 Am. ^ Eng. R. Cas. '^rj, 2 A^. Dak. 440, 51 N. W. Rep. 781.— Distinguishing Tonawanda R. Co. V. Munger, 5 Den. 255; affirmed, 4 N. Y. 349; Van Horn v. Burlington, C. R. & N. R. Co., 59 Iowa 33, 12 N. W. Re|). 752; Eames 7/. Salem & L. R. Co., 98 Muss. 5(10; Darling v. Boston & A. R. Co., 121 Mass. 118; Wright v. Boston & M. R. Co., 2 Am. & Eng. R. Cas. 121, 129 Mass. 440; Pittsburgh, C. & St. L. R. Co. v. Stewart, 71 Ind. 500; Schittenhelms v. Louisville & N. R. Co. (Ky.), 19 Am. & Eng. R. Cas. in ; Maynard v. Boston & M. R. Co. 115 Mass. 458; Cincinnati, W. & M. R. Co. v. Stanley (Ind.), 27 N. E. Rep. 316; Bennett v. Chi- cago & N. W. R. Co., 19 Wis. 145 ; Vande- grift V. Rediker, 22 N. J. L. 189. yuoriNG Isbell V. New York & N. H. R. Co., 27 Conn. 393; Needham v. San Francisco & S. J. X. Co., 37 Cal. 409. Reviewing Davis v. Mann, 10 Mees. & VV. 549. In California, where cattle are permitted to run at large, railroad companies are only required to use reasonable exertions to pre- vent injuring them if they stray upon tfie track. Richmond v. Sacramento Valley R. Co., 18 Cal. 351.— Quoting Beers v. Housa- tonic R. Co., 19 Conn. 566. Reviewing Corwin v. New York & E. R. Co., 13 N. Y. 42; Housatontc R. Co. v. Waterbury, 23 Conn. loi. Those in charge of moving trains are re- quired to exercise ordinary care and pru- dence to avoid injuring stock on the tracks, but if the track is properly enclosed, then the company will only be liable for gross negligence. Alger v. Mississippi » M. R. Co., 10 Iowa 268.— Reviewing Bees v. Housatonic R. Co., 19 Conn. 566.— Dis- tinguished IN Bartlett v. Dubuque & S. C. R. Co., 20 Iowa 188. Railroad companies are required to use reasonable and ordinary care to avoid in- juries to live stock on the portions of their tracks which cannot be fenced, and if they fail in such care they are liable to the owner of the stock, if it be injured without negligence on his part. Whitbeck v. Du- buque &> P. R. Co., 21 Iowa 103.— Reviewed IN Davis z/. Burlington & M. R. Co., 26 Iowa 549 ; Moses v. Southern Pac. R. Co., 42 Am. & Eng. R. Cas. 555, 18 Oreg. 385. In an action to recover the value of a cow alleged to have been killed by an engine on defendant's road, — held, that although the accident occurred at a place where the company were not bound to fence their track, and defendants were not guilty of any wanton or wilful neglect, yet if, by the exercise of ordinary care and skill upon their part, they could have prevented the injury, they were, nevertheless, liable for the damages sustained. Rockford, R. I. &^ 5/. L. R. Co. V. Lewis, 58 ///. 49. A railroad company is liable for any damage done to persons, stock, or other ANIMALS. INjUKIliS TO, 49. 107 property by the running u( Us uuins, unless ihe company sliiill make it appear that their agents exerciiseil all orilinary and reasonable care and diligence to prevent such damage; but where, in an action for killing a horse, the court, aiict charging this principle, added, "that is, I might say, a full measure of care and diligence— all that could be expected," such charge was error, the effect of it being to require extraordinary diligence of the company. VVeshrti &' A. li. Co. v. King, 19 Am. &' Eng. A". Cas. 255, 70 Ga. 261. The employes of a railroad company are bound to use ordinary care and diligence, so as not unnecessarily to injure the properly of (Others on the track. Coyie v. Baltimore &> O. R. Co., II W. Va. 94, 18 Am. Ry. Rep. 487. (3) Th( care which would be used by a prudent man. — The only thing that will justify an injury to cattle by moving trains is proof that the company, at the time, was engaged in its ordinary and lawful business, and that the injury could not have been avoided by the use of such skill, prudence and care as a discreet man would have used under the same circumstances. New Or- leans, J. &* G. N. R. Co. V. Field, 46 Miss. 573- Railroad companies are required to use that reasonable care . . prevent injuries to live stock on the track that a prudent man would exercise under the same circumstances in the management of his own property. Mississippi C. R. Co, v. Miller, 40 Miss. 45. -Followed in Cantrell v. Kansas City, M. & B. R. Co., 69 Miss. 435. Railrjad companies are only held to such diligence to avoid killing stock as a prudent man would bestow on his own business. The absence of such diligence is negligence which will render a company liable. Molair v. Port Royal 6- A. R. Co., 35 Am. &^ Eng. R. Cas. 13s, 29 So. Car. 152, 7 S. E. Rep. 60. In considering the question of negligence of the agents of a railroad company, all their duties must be considt red— their first and higher duties to the passengers and property in their charge, and their subor- dinate duties to avoid injury to live stock spraying on the road in front of them ; and such agents and employes will be guilty of actionable negligence whenever the injury complained of is the result of their failure to observe that care, vigilance, and foresight that ordinarily prudent men, skilled and en- gaged in a like perilous service, should or uuglit tvj observe. Kentucky C. R, Co, v. Led us, 14 Bush (h'y.) 518. 49. Degree of care required after discovery of auiinal.*— (i) Generally. — If live stock is seen on the track at such places as would make it impossible for it to get oflf, as in cuts, or where the track is fenced on either side, it is the duty of the company to use necessary care to prevent injuries thereto, and, failing in this, it is liable for any injury. Nashville &■» C. R. Co. V.Anthony, \ Lea {Tenn.)ii6. — EXPLAIN- ING Memphis & C. R. Co. v. Smith, 9 Heisk. (Tenn.) 860.— Followed in EastTenn., V. & G. R. Co. V. Selcer, 7 Lea (Tenn) 557. (2) Ordinary and reasonable rarf.— Ordi- nary care in the management of their trains is the measure of vigilance which the law exacts of railroad companies to avoid injury to domestic animals; and this means, prac- tically, that the company's servants are to use all reasonable efforts to avoid harming an animal after it is discovered, or might, by proper watchfulness, be discovered, on or near the track. Li*:Ie RockQ^ Ft. S. R. Co. v. Holland, 19 Am. &= Eng. R. Cas. 479, 40 Ari'. 336.— Approved in Atchison, T, & S. F. R. Co. V. Walton, 3 N. Mex. 319. Fol- lowed IN Gulf, C. & S. F. R. Co. V. Johnson, 54 Fed. Rep. 474, 10 U. S. App. 629, 4 C. C. A. 447. Quoted in Gulf, C.& S. F. R. Co. v. Washington, 49 Fed. Rep. 347, a. U. S. App. 121, I C. C. A. 286. Those in charge of a train must use ordi- nary or reasonable care to prevent injury to trespassing stock on the track after the same is discovered. St. Louis, I. M. &* S. R. Co. V. Ferguson, 57 Ari. 16, 20 5. IV. Rep. 545.— Following St. Louis, I. M. & S. R. Co. V. Roberts, 56 Ark. 387, 19 S. W. Rep. loss; Atlanta & W, P. R. Co. v. Hudson, 62 Ga. 679. After stock is discovered on a railroad track it is the duty of those in charge of trains to use reasonable care to prevent in- juring the same, but it cannot be said to be the duty of the company's employes to keep a lookout for stock. Kansas City, Ft. S. &* M. R. Co, V. Shaver, {Ark.) 14 S. IV. Rep, 864.— Following Memphis & L. R. R. Co. V. Kerr, $2 Ark. 162, 12 S. W. Rep. 329. While by the use of extraordinary dili- gence the company might have saved the * See ante, 48 ; fost, 68, 02, 116, 141, 108 ANIMALS, INJURIES TO, 40. life of a horse by adopting » L. R. R. Co. v. Kerr, 40 Am. (S~» Eng. R. Cas. 171, 52 Ark. 162, 5 L. R. A. 429, 12 S. IV. Rep. 329. It is the duty of those in charge of mov- ing trains to use reasonable diligence to avoid injuring cattle as soon as they are discovered to be in a position of danger, whether they be on the track or near to it. Cleveland, C, C. &* St, L. R. Co. v. Ahrens, 42 ///. App. 434. Persons in the management of a train, after discovering a horse on the track, are only required to use ordinary care and pru- dence to avoid injuring the horse, and the burden is on the owner suing for damages to show such want of care or proof of negli- gence. An engineer is not required to stop his train and send a man ahead to prevent a frightened horse from running on a bridge and injuring himself. Chicago &^ N. IV. R. Co. V. Taylor, 8 ///. App. 108.— Quoting Peoria, P. & J. R. Co. v. Camp, 75 111. 577. Reviewing Toledo, P. & W. R. Co.v. Bray, 57 111- S«4- It is the duty of persons in charge of trains to avoid injuring cattle seen on the track, if this can be done with ordinary care, and failing in this the company is liable for any injury, regardless of the condition of the fences or gates. Baker v. Chicago. B. &* Q. R. Co., 73 Iowa 389, 35 A^ IV. Rep. 460. In an action against a railroad company for injuries to live stock, an instruction to the jury to the effect that if the company's employes saw the stock so near the track as to justify the reasonable inference that it was in danger, and by the exercise of ordi- nary care they could have avoided th? injury and did not do so, they were neglige it ; but if after discovering the stock they w 're un- able to avoid the injury by the exerc'se of ordinary tare, they were not negligent, cor- rectly states the law. Edson v. Central R, Co., 40 /owa 47, 8 Am. Ry. Rep. 412. Where an animal, through no fault of the railroad company, gets upon the track at a point where the defendant is not required to anticipate its presence, the company's lia- bility is confined to a failure on the part of its servants to use ordinary care to avoid the injury after discovering the peril in which the animal is. Brooks v. Hannibal &* St./. R. Co., 27 Mo. App. 573.— Following Wallace V. St. Louis, I. M. & S. R. Co., 74 Mo. 594. Where stock are trespassing, and come upon the defendant's track neither at a pub- lic nor private crossing, but at a point where defendant's servants were not required to anticipate the presence of stock, defendant is only required to use ordinary care to pro- tect them after in fact discovering their peril; and it is error to instruct the jury that de- fendant was required to use such care, after it might have discovered such peril by the exercise of reasonable diligence. Jewett v. Kansas City, C. &* S. R. Co., 38 Mo. App. 48. Where a horse got upon defendant's track through no fault of defendant, and at a point where defendant was not required to anticipate the presence of live stock, the railroad company's liability is confined to a failure on the part of its servants to use ordinary care to avoid the injury after hav- ing discovered the peril in which the animal was. The defendant's servants were not bound, at all hazards and in any event, to avoid an injury to the horse. Hoffman v. Missouri Pac, R. Co., 24 Mo. App. 546.— NOT FOLLOWED IN Hill V. Missouri Pac. R. Co., 49 Mo. App. 520. Having left its railroad uninclosed through a country where domestic animals are al- lowed to be at large, and thus exposed to the casualties of the animals accidentally getting upon the railway track, it is the duty of the railroa'd company, acting through its agents, to use at least ordinary and reason- able care and diligence to avoid unnecessary injury to the animals when found in the way of a train on the road. Kerwhacker v. Cleveland, C. &* C. R. Co., 3 Ohio St. 172.— Quoting Trow v. Vermont C. R. Co., 24 Vt. 488. Reviewing Quimby v. Vermont C. R. Co.. 23 Vt. 388. A railroad company cannot justify either recklessness or want of common care at the lime and after cattle are discovered, or wan- ton injury thereto; but short of that it is ANIMALS, INJURIES TO, 50. 100 not liable. Jackson \ . Rutland Or* B. R. Co., 25 Vt. 150.— Disapproving Clark z/. Syra- cuse & U. R. Co., II Barb. (N. Y.) 112; Williams v. Michigan C. R. Co., 2 Mich. 259 ; New York & E. R. Co. v. Skinner, i Am. Law Reg. 97. Quoting Ricketts v. East & W. India Docks & B. J. R. Co.. 12 Eng. Law & Eq. 520.— Quoted in Trout v. Virginia & T. R. Co., 23 Gratt. (Va.) 619. {3) The degree of care which is used by a prudent man. — Where the railroad company discovered an animal on the track, it was bound to make the same eflfort to avoid in- juring it as a prudent person would do if he owned both cow and train. Locke v. First Div. St. Paul &> P. R. Co., 15 Minn. 350. (Gil. 283).— Approved in Witherell v. Mil- waukee & St. P. R. Co., 24 Minn. 410. Fol- lowed in Palmer ». Northern Pac. R. Co., 31 Am. & Eng. R. Cas. 544, 37 Minn. 223, 33 N. W. Rep. 707, 5 Am. St. Rep. 839; O'Coimor v. Chicago, M. & St. P. R. Co., 27 Minn. 166, 36 Am. Rep. 829, note. 50. Eft'ect of gross ueffliKeucc of coiiiimiiy—Wilfiil acts.*— At common law railroad companies were not liable for in- juries committed by their trains upon stock straying upon the road, unless the injuries were the result of wilful and reckless negli- jjence on the part of the company or those in its employ. O'Bannon v. Louisville, C. &* L. R.Co., 8 Bush {Ky.) 348.— Following Louis- ville & F. R. Co. V. Ballard, 2 Mete. (Ky.) 183. Mere proof of killing of stock upon the railroad track will not make the company liable. It must appear that it was wantonly done, or that there was wilful or gross neg- ligence. Chicago &* M. R. Co. v. Patchin, 16 ///. 198.— Approved in Atchison, T. & S. F. R. Co. V. Walton, 3 N. Mex. 319. Dis- tinguished IN Toledo, W. & W. R. Co. v. Furgusson, 42 111. 449, Followed in Great Western R. Co. v. Thompson, 17 III. 131 ; Illinois C. R. Co. v. Reedy, 17 111. 580; Louisville & F. R. Co. v. Ballard, 2 Mete. (Ky.) 177. Overruled in Illinois C. R.Co. V. Middlesworth, 46 111. 494. Quoted in Galena & C. U. R. Co. v. Jacobs, 20 111. 478. Railroad companies are not liable for in- juries to cattle unless they be wilfully or maliciously done, or done under circum- stances exhibiting gross negligence. These *See ante, 37; /of/. OO, 187, 200, 217, 284. Liability of railroads for wilfully or negli- gently killing or injuring stock trespassing on track, see note, 96 Am. Dec. 681, companies are not bound to use the highest possible degree of care towards animals coming in the way of their trains. Great Western R. Co. v. Thompson, 17 ///. 131. — Distinguished in Toledo, W. & W. R. C(j. V. Furgusson, 42 111. 449. Overruled in Illinois C. R. Co. v. Middlesworth, 46 111. 494. Quoted in Galena & C. U. R. Co. v. Jacobs, 20 111. 478. If an animal is wrongfully on the truck of a railroad, but is injured while on the same by the gross negliyc^ ce or wilful miscon- duct of the company's agents, the company is liable. Lafayette &^ /. R. Co. v. Hhrincr, t hid. 141. In such a case the conipany cannot avoid liability by showing that tlie animals were at large, where the law made them trespassers, or where they were running at large by the fault of the owner. Leavenworth, T. &* S. IV. R. Co. v. Forbes, 31 Am. &'Fng. R. Cas. 522,37 Kan. 445, 15 Pac. Rep. 595.— Fol- lowed IN St. Louis & S. F. R. Co. v, Sanders, 40 Kan. 469. In an action brought to recover the value of cattle killed on a railroad track by the cars, the plaintiff is as much bound to prove the fact of gross negligence and want of care on the part of the company or its igcnts, as he is to prove the fact of the killing. Knight V. New Orleans, O. &> G. IV. R. Co., 15 La. Ann. 105. Proof that stock was killed through mere want of those in charge of the train to use ordinary care, is not sufficient to make the company liable; it must appear, where the animals were trespassing upon the track, that the injury was the result of either reckless- ness or wantonness. Maynard v. Boston &» M. R. Co., 115 Mass. 458. — Distinguishing Eames v. Salem & L. R. Co., 98 Mass. 560. —Distinguished in Bostwick v. Minne- apolis & P. R. Co., 2 N. Dak. 440. Re- viewed IN Boyle V. New York, L. E. & W. R. Co., 39 Hun (N. Y.) 171; Moses v. Southern Pac. R. Co., 42 Am. & Eng. R. Cas. 555, 18 Oreg. 385. The owners of cattle that are killed while trespassing upon a railroad track cannot re- cover, even where the killing is due to the gross negligence of those in charge of the train. Clarh v. Syracuse <&* U. R. Co., 11 Barb. (N. V.) 112. StucA-e v. Milwaukee &* M. R. Co., 9 Wis. 20.1.— Following Tona- wanda R. Co. v. Munger. 5 Den. (N. Y.) 255.— DlSAPPRovKl) IN Jackson v. Rutland & B. R. Co.. 25 Vt. 150. 110 ANIMALS, INJURIES TO, 51. Railroad companies having the fee in the lands on which their roads are built are only liable for damages to cattle trespassing on the track where the injury is wilful or ma- licious. C/ticai^o &• M. R. Co. v. Patchin, i6 ///. 198— Quoted in Illinois C. R. Co. v. ^Houghton, 126 111. 233, 18 N. E. Rep. 301, i *L. R. A. 213. Reviewed in Vermilya v. Chicago, M. & St. P. R. Co., 66 Iowa 606. In an action to recover the value of cattle alleged to have been killed on defendants' road by their locomotive and train, it ap- peared the cattle could have been seen on the track by the engineer, if he had been on the lookout, for a distance of more than half a mile, yet he made no effort to slacken the speed of the train. Held, it was gross negligence, for which the company should be held responsible, even though the cattle were upon the track without the fault of the company. Chicago Sf* N. IV. R. Co. v. Barrie, 55 ///. 226, 2 Am. Ry. Rep. 451. Where a railroad company is not bound to fence its track, it will only be liable for in- juries to live stock that stray upon the track, where the injury is the result of reck- lessness or wantonness. Louisville &* F. R. Co. V, Ballard, 2 Mete. {Ky.) \77.— Changed by statute in Kentucky C. R. Co. V. Lebus, 14 Bush (Ky.) 518. Dis- tinguished IN Robinson v. Flint & P. M. R. Co., 45 Am. & Eng. R. Cas. 496, 79 Mich. 323. Followed in O'Bannon v. Louisville, C. & L. R. Co.. 8 Bush (Ky.) 348. Quoted in Washington v. Baltimore & O. R. Co., 17 W. Va. 190. A railroad company is not liable for an animal killed on the track at a point where the company was not bound to fence, unless it was killed by the gross negligence or wil- ful misconduct of the company's agents. Indianapolis &■» C, R. Co. v. McClure, 26 Ind. 370. It is the duty of owners of live stdck to keep them off railroad tracks, and if they fail to do so, companies will only be liable for injuries thereto which result from the reckless, wanton, and wilful acts of their agents. Louisville Sf F. R. Co. v. Ballard, 2 Mete. i^Ky.) 177.— Following Louisville & F. R. Co. v. Milton, 14 B. Mon. (Ky.) 61. Where hogs are killed while on a railroad track, at places where the Texas stock law is in force, which prohibits hogs and other stock from running at large, in order to re- cover from the company tiiere must be evi- dence that the killing was the result of gross negligence. Missouri Pac. R. Co. v. Law- ler,lTex. App. {Civ. Cas:) 38.— QUOTING International & G. N. R. Co. v. Cocke, 64 Tex. 151. 51. Unavoidable accidents, {;euer- ally.* — (i) Company need not attempt the impossible. — It is not necessary that the company's employes shall attempt the im- possible; and hence, if, without fault o^ such employes, a danger is not and cannot be discovered until all appliances known to the best- regulated railroad motive power are clearly powerless to avert or mitigate the injury, then a failure to apply such useless agencies imposes no liability; and particu- larly would this be the case if, by attempt- ing the impossible, the chances of another or greater peril would be increased. Fast Tenn., V. (S- G. R. Co. v. Bayliss, 22 Am. (&>» Eng. R. Cas. 596, 75 Ala. 466. The law does not require that those charged with the management of railroad trains should attempt the impossible in order to prevent injuries to live stock, yet so long as there is hope of avoiding an ac- cident they must use the necessary appli- ances to do so; and when the company is sued for damage to live stock, the burden is on it to show that any attempt to avoid in- jury that might have been made would have been fruitless. Alabama G. S. R. Co. v. Mc Alpine, 22 Am. &* Eng. R. Cas. 602, 75 Ala. 113.— Distinguishing South & N. Ala. R. Co. V. Jones, 56 Ala. 507. (2) Accident notwithstanding use of care. — A railroad company is not liable for killing live stock in a cut where it could be seen only a short distance ahead, where the evidence shows that every precaution that could have been exercised was taken to pre- vent a collision. Gay v. Fremont, E. &> M. V. R. Co., 5 Dak. 514. 41 N. W. Rep. 757. A railroad company has the undoubted right to the free, unmolested, and exclusive use of its road for the purposes for which it is appropriated ; and if under all the cir- cumstances ordinary and reasonable care and diligence are exercised to avoid injury to domestic animals found upon the road, the duty to which it is subject is performed ; and for injuries which are unavoidable it cannot be made liable. Alabama G. S. R. Co. V. Jones, 1 5 Atn. &* Eng. R. Cas. 549, 71 Ala. 487.— Quoted in Alabama G. S. R. * Liability for killing stock where accident was unavoidable, see note, 45 Am. & Eng. R. Cas. 537. ANIMALS, INJURIES TO, 51. Ill Co. V. McAlpine, 22 Am. & Eng. R. Cas. 602, 75 Ala. 113. Where under the circumstances of the killing or injury it could have been avoided by the exercise of ordinary or reasonable care upon the part of the agents operating the train, and such care has not been exer- cised, the company will be liable; but if, MOtwithstanding the exercise of such care, the killing or injury would be unavoidable, the company is not liable. Savannah, F. &* IV. R. Co. V. Geiger, 29 Am. <&>• Eng. R Cas. 274, 21 Fla, 669, 58 Am. Rep. 697.— DISAP- PROVING Danner v. South Carolina R. Co., 4 Rich. (So. Car.) 329. A railroad company i" lot liable for kill- ing a mule by a train running 23 miles an hour, where the engineer did not see it till within 30 feet, when he blew the alarm and did all in his power to avoid a collision. Louisville, N. O. &* T. R. Co. v. Smith, 67 Miss. 15, 7 So. Rep. 212. A railroad company is not liable for kill- ing stock on the track, where it admits the killing, but shows that there was no negli- gence on the part of those in charge of the train and that the killing was unavoidable. Chicago, St. L. &* N. O. R. Co. v. Packwood, 7 Am. &> Eng. R. Cas. 584, 59 Miss. 280. — Following Young v. Wilson, 24 Miss. 694. — Approved in Volkman v. Chicago, St. P., M. & O. R. Co., 35 Am. & Eng. R, Cas. 204, 5 Dak. 69, 37 N. W. Rep, 731. Distin- guished IN New Orleans, M, & T. R. Co. w. Toulme, 59 Miss. S4; Mobile & O. R. Co, V. Gunn, 68 Miss. 366. Limited in Tyler v. Illinois C. R. Co., 19 Am. & Eng. R. Cas. 519, 61 Miss. 44s. A railway company is not liable for cattle killed where it appears that the night of the accident was dark and foggy ; that the en- gineer did not see the animals on the track until a collision was inevitable, and then did everything in his power to avert the acci- dent. New Orleans &* N. E. R. Co. v. Bur- kett, (Miss.) 2 So. Rep. 253. (3) Where care could not have prevented accident. — Under statutory provisions, it is made the duty of the engineer of a railroad train, on perceiving any obstruction on the track, to use all means in his power to stop the train, and, if any stock is killed or in- jured, the onus is on the company to show a compliance with this requirement; but this duty does not arise unless the obstruction is on the track and is perceived by the engi- neer; and a compliance with it is not re- quired when it is shown that the animal was not discovered in time to avoid the injury, and that this was not owing to any want of due care and watchfulness. Savannah &^ IV. R. Co.v./arvis.gs ^^c- •49- — Quoiing Nashville, C. & St. L R. Co. v. Hcmbrce, 85 Ala. 48 1 . To nearly same effect, see Hawker V. Baltimore <&* O. R. Co. 1 5 W. Va. 628. If a proper lookout were kept, and the ani- mal was, when discovered, so near the engine that the accident could not be prevented by the prompt use of all proper appliances, the presumption of negligence is overcome, and no liability for damages is incurred ; nor can negligence be imputed to the engineer, as matter of law, because he did not sound the cattle-alarm, if he promptly signalled the brakeman, and could not at the same time sound the cattle-alarm ; but the sufficiency of this excuse for the failure, as disclosed by the facts in evidence, is a question for the jury. Modile &> G. R. Co. v. Caldwell, 83 Ala. 196, 3 So. Rep. 445. Under the Maryland statutes railroad companies are liable for stock killed that stray upon the track without fault on the part of the owner, unless it appear to the satisfaction of the jury that the injury was entirely due to unavoidable accident on the part of the company. Keech v. Baltimore &* IV. R. Co., i7Md.'2,2. A railroad company is not liable for kill- ing animals on the track if it appears that they are first discovered so near the engine that a collision could not have been pre- vented by the use of all proper train appli- ances. New Orleans &> N. E. R. Co. v. Bourgeois, 66 Miss. 3, 5 So. Rep. 629. Unless it appears that those in charge of the train could, after discovering the animal in front of the engine, by reasonable exer- tion have checked the train, having regard to the safety of the cars and passengers, in time to have avoided the collision, there can be no recovery on the ground of neg- ligence. Judd V. Wabash, St. L. &• P. R. Co., 23 Mo. App. 56. Savannah, F. &* W. R. Co. V. Gray, 77 Ga. 440, 3 5. E. Rep. 1 58. —Distinguishing Gainesville, J. & S. R. Co. V. Wall, 75 Ga. 282; East Tenn., V. & G. R. Co. V. Culler, 75 Ga. 704; Davis v. Central R. Co., 75 Ga. 645. In an action against a railroad company for killing stock, an instruction to the jury correctly states the law which, in effect, tells them that if the train was running at a law- ful speed and had the customary force of 112 ANIMALS, INJURIES TO, 52. men and appliances, and the stock was so close that the train could not be stopped in lime to avoid a collision when it was first seen by the engineer, or might with due care have been seen, then the company was not liable. Joyner v. South Carolina R. Co., 29 Am. 6- Eng. R. Cas. 258, 26 So. Car. 49, i i. E. Rep. 52. The court committed no error in refusing to charge the jury "that if it appear that a liorse killed or injured by a train was first discovered or was first discoverable on the track at such a short distance from the place where he was killed or injuretf that the train could not have been stopped in time to pre- vent running over or against the horse, it was not necessary that the persons running ilie train should have seen the liorse, or, having seen him, that they should have at- tempted to slop the train." Simkins v. Columbia &> G. R. Co., 19 Am. <&>• Eng. R. Cas. 467, 20 So. Car. 258. (4) JllusOalious.—A railroad company is not liable for the loss or injury of live stock on the track, if it appears that by reason of the weather the animal was not seen until it was too late to save it by using the appli- ances provided for stopping the train, and that the train at the time was provided with a proper headlight, good brakes, and was properly officered, and running at a moder- ate rate of speed, and those in charge were guilty of no negligence. Alabama G. S. R. Co. v. McAlpine, 22 Am. &^ Eng. R. Cas, 602, 75 Ala. 113.— Modifying Memphis «& C. R. Co. V. Lyon, 62 Ala. 71. Quoting Alabama G. S. R. Co, V. Jones, 71 Ala. 487.— Fol- lowed in Alabama G. S. R. Co. v. Moody, 92 Ala. 279. The engineer saw the mule which was ' O. R. Co., 4 Hughes ( U. S.) 1 70. 52. Uiiuvuidable accident where animal comes suddenly upon track. — (I) Generally. — Under Ala. Code, § 1144, the engineer, seeing an animal on the track, is required to use all the means in his power known to skilful engineers, in order to stop ANIMALS, INJURIES TO, 52. 113 the train ; and when he sees un animal in dangerous proximity to ihe track, or by proper care and diligence could have seen it, the common-law duty rests on him to use proper efforts to frighten it away, and, if necessary, to stop the train ; but, when the animal, though near the track, is not dis- covered in fact, nor discoverable by the use of proper care and attention until it sud- denly leaps un the track in front of the en- gine, so near that no appliances can stop the train in time to prevent a collision, the en- gineer is not required to attempt to do so. Kansas City, A/. 6- B. R. Co. v. Watson, 91 Ala. 483, 8 So. Rep. 793- It is a complete defence to an action against a railroad company for killing or in- juring a horse or cow that the animal was not, and could not be seen, until it sprang on the track about fifty yards ahead of the engine, and that all the appliances known to skilful engineers could not then stop the train in time to prevent the injury. Ala- bama G. S. R. Co. v. Smith, l^Am. &*Eng. R. Cas. 1 so, 85 Ala. 208, 3 So. Rep. 795. An action cannot be maintained against a railroad company to recover for live stock killed, where the evidence shows that the engineer was keeping a sharp lookout but did not see the stock in time to stop the train and avert a collision. Afoye v. VVrights- ville &* T. R. Co., 83 Ga. 669, 10 S. E. Rep. 441. An engineer seeing an animal upon the track cannot presume that it will get out of danger as he might if it was a human being, but must take such measures as are neces- sary to avoid injury thereto; but this rule applies only to cases where the danger is apparent, and if an animal comes suddenly upon the track, so near the train as to make it impossible to stop before reaching it, the company will not be liable for killing it. Terre Haute &* J. R. Co. v. Jenuine, 16 ///. App. 209. A railroad company is not liable for in- juries to stock suddenly coming upon the track at a point where no fence is required, where the engineer could not be charged with negligence in failing to avoid a colli- sion. Judd V. Wabash, St. L. *• P. R. Co., 23 Mo. App. 56. A railroad company will not be liable for failing to comply with all the provisions of Tennessee Code, § 1 166, as to whistle, brakes, etc., where a person or animal so suddenly appears on the track as to make it impossi- 1 D. R. D - 8. ble, for want of time, to comply with the statute. East Tenn. , V.Sr*G. R. Co. v. Scales, 2 Lea {Tenn.) 688.— Disapproving Nash- ville & C. R. Co. V. Thomas, 5 Heisk. (Tenn.) 262 ; Memphis & C. R. Co. v. Smith, 9 Heisk. (T«inn.) 860.— Applied in Holder V. Chicago, St. L. & N. O. R. Co., 1 1 Lea (Tenn.) 176. APPROVED IN East Tenn. & V. R. Co. zi, Swancy, 5 Lea (Tenn.) 119. (2) Illustrations. — A railroad company will not be liable for killing a horse that suddenly comes upon the track so near the engine as to make it impossible to check the train in time to avoid the injury, where it is shown that the engineer kept a proper lookout and could not have seen the horse, even by the exercise of the diligence ex- acted by his situation ; and in determining whether the engineer kept a proper lookout, the jury must take into consideration his other duties which prevent his constantly looking. East Tenn., V. &* G. R. Co. v. Bayliss, 19 Am. &* Eng. R. Cas. 480, 74 Ala. 150. Where the evidence in an action against a railroad company for injuring stock tends to show that the engineer was keeping a proper lookout, but did not know that stock was near until his fireman warned him that the stock was coming near the track, and im- mediately one of the animals jumped upon the track too near the engine to make it possible for the engineer to have averted a collision, but that he did put on the air- brakes and reversed his engine and did what he could to avoid injury, the company is entitled to an instruction to the jury to the effect that the jury must return a verdict in favor of the company if they believe the evidence. Nashville, C. &«• St. L. R. Co. v. Hembree, 38 Am. &• Eng. R. Cas. 300, 85 Ala. 481, 5 So. Rep. 173.— Quoted in Sa- vannah & W. R. Co. V. Jarvis, 95 Ala. 149. In an action against a railroad company for killing a horse it appeared that the horse suddenly jumped on the track from underbrush and immediately the engineer used all means in his power to stop the train, but it appeared that the horse entered the track so near the train that it could not have been stopped in time to avoid a collision by any known appliances. Held, that there was no negligence which would make the company liable. Little Rock &* Ft. S. R. Co. V. Holland, 19 Am. &^ Eng. R. Cas. 479, 40 Ark. 336. Where an animal came suddenly upon the 114 ANIMALS, INJURIES TO, 53, 54. railroad track and was killed by a train, which was running through a town and within the depot grounds ut the usual rate o( speed with its bell ringing, and the evi- dence shows that it came upon the track so near a building alongside the road that the en>;ineer could not see it in time, by the use of ordinary and reasonable care, to pre- vent the accident,— //t'A/, that ihe company was not liable, notwithstanding the fact that the track was not fenced at that place. Galena «S- C. U. Ji. Co. v. Griffin, 31 ///. 303. The owner of a trespassing hog cannot recover from a railroad company for killing it on a switch where the company was not required to fence, where it appears that the train was being slowly backed in a careful manner, and that the hog stepped in front of the train and was killed. 0/u'o &* M. R. Co. V. Gross, 41 ///. App. 561. If a horse is killed by a train at a public road crossing, and the evidence shows that the train was running at the rate of twelve miles an hour, and the horse walked on to the track twenty-five or thirty yards in front of the approaching train, and the engineer at once gave two sharp whistles, and the evidence further shows tliat it was impossi- ble to stop tlie train, considering its speed, after the horse got on the track, the killing of the horse must be regarded under the circumstances as an inevitable accident, and the railroad company is not responsible therefoi. Toudy v. Norfolk &* W. R. Co., 38 W. Va. 694, \ZS.E. Rep. 896. b. As Dependent upon Owner's Duty to Inclose Stock. 53. Duty of owner to keep his stock witliiu inclosures.*- (1) At com- mon law. — The common law imposes on the owner of domestic animals the duty of keep- ing them on his own lands, or within in- closures, and he becomes a wrongdoer if any of them escape or stray off upon the lands of another; but this common-law rule is not in force in West Virginia, it being in- consistent with the legislation of the state, subject to the qualifications, however, that animals which are unruly or dangerous are required to be restrained. Baylor v. Balti- more &* O. R. Co., 9 W. Va. 276.— Fol- lowed IN Johnson v. Baltimore & O. R. Co., 25 W. Va. 570. * Obligations of owner to keep stock confined, sec noie, I L. R. A. 430. In Maryland owners of live stock are re- quired to keep them on their own lands, and are responsible if they trespass upon lands in the possession of the railroad company, as well as upon lands of private persons. Baltimore &> O. R. Co. v. Lamborn, 12 Md. 257. The common-law rule is in force in In- diana, and the owner must keep up his cattle, in the absence of an order from the county commissioners permitting them to run at large. Michigan S. 6- N, I. R. Co. v. Fisher, 27 Ind. 96. The owner of cattle is bound to keep them in an inclosure or in custody at his peril, for every entry by them on another's possession is a trespass, and this principle ap- plies as well to the intrusion of cattle and horses upon the land over which a railroad company is entitled to its franchise as to the property of a private owner. Baltimore &» O. R. Co. V. Lamborn, 12 Md. 257. It is the duty of the owners of cattle to keep them within inclosures, so as to pre- vent them from trespassing upon the lands of others. Laws v. North Carolina R. Co., 7 /ones (N. Car.) 468.— DISTINGUISHING Aycock V. Wilmington & W. R. Co., 6 Jones (N. Car.) 231. (2) Under statute or ordinance, — The statute prohibiting stallions from running at large was not intended to apply to colts until they were c' such an age as to be troublesome to mares or dangerous to be at large. Aylesworth v. Chicago, R. I, &* P. R, Co., 30 /oTva 459. An ordinance of an incorporated city pro- hibiting stock from running at large within its corporate limits cannot be held to pre- vent the citizen from turning his stock out on the commons, beyond the limits of the city. Fail v. /Kansas City, C. 6- S. R, Co., 28 Mo. App. 372. 54. Animals escaping^ from owner's control are trespassers.* — In an action against a railroad company to recover for injuries to a horse it appeared that the horse escaped from the owner's stable and passed over intermediate lands wliich belonged to plaintiff, but which were in the possession of a city for the purpose of making certain im- provements, and passed upon a railroad track through an opening made by the city. //eld, that it was error in the trial court to refuse to rule, that the railroad company • See ante, 43, 44. ANIMALS, INJURIES TO, 55,50. 115 was not liable for an injury to the horse, and in holding that the horse was not trespass- ing on the land in the possession of the city, as it only had an easement therein. Conklin V. Old Colony R, Co., \l\Mais. 155. 28 N. E. Rep. 143- A railroad corporation is not liable for damages done to the cattle which escape to the railroad from the highway, or through fences between the railroad and land of the owner, such cattle being considered as tres- passing. Woolson V. Northern R. Co., 19 A'. H. 267. It seems that a railroad corporation, by proceedings duly taken under its charter, acquires the title to lands appropriated for the use of the road. And, therefore, where cattle escape from the inclosure of the owner and stray upon the track of a rail- road, they are to be regarded as trespassing upon the lands of the railroad company. Munger v. Tonawanda R. Co., 4 N. Y. 349. —Reviewed in Vermilya v. Chicago, M. & St. P. R. Co., 66 Iowa 606. The plaintiff, as constable, seized a horse under a distress warrant, and put him in the stable of an inn. The horse escaped to the road, and having got upon the railway ow- ing to defects in the cattle-guards, was killed some distance from the point of intersec- tion. Held,thax under the 20 Vic. ch. 12 the horse was unlawfully upon the highway, and having got thence upon the track the company were not responsible, notwith- standing the defect in the cattle-guards. Although the horse was upon the road with- out the plaintiff's knowledge or permission, yet he was nevertheless there unlawfully, for the statute obliged the plaintiff to pre- vent him from being there. Simpson v. Great Western R. Co., 17 U. C. Q. B. 57.— Quoting Sharrod v. London & N. W. R. Co., 4 Exch. 580. — Followed in Cooley v. Grand Trunk R. Co., 18 U. C. Q. B. 96. 55. Right to allow stock to riiu at large.* — The common-law rule requiring the owner of live stock to keep them on his own lands, and making them trespassers if they go upon the lands of another, whether such lands are inclosed or not, has never been recognized in Arkansas, Florida, Mississippi, Missouri or Oregon. Little Rock &• Ft. S. R. Co. V. Finley, 1 1 Am. G. N. R. Co. V. Field, 46 Miss. 573, 2 Am. Ry. Rep. 439. Though owners of cattle and other live stock in Florida have the legal right to turn them out to range, yet in doing so they as- sume the risk of any danger which may re- sult to the stock from their going upon the railroad track and being run upon by a train, when the circumstances are such as to ren- der running upon them unavoidable, not- withstanding the use of reasonable care by the persons operating the train to avoid it. Savannah, F. &• W. R. Co. v. Geiger, 29 Am. &• Eng. R. Cas. 274, 21 Fla. 669, 58 Am. Rep. 697. Persons in Mississippi may permit their stock to run at large on uninclosed lands of railroad companies, as well as others, with- out incurring any liability as trespassers, and this is so if they go upon enclosed lands without breaking a lawful fence. New Or- leans, J. 6- G. N. R. Co. V. Field, 46 Miss. 573, 2 Am. Ry. Rep. 439. In Missouri the owners of stock are not required to keep them up or restrain them from going about railroad tracks. Davis v. Hannibal &» St. J. R. Co., 19 Mo. App. 425. A by-law enacting that certain animals shall not run at large does not impliedly allow others not named to do so, contrary to the common law. Jack v. Ontario, S. &* H. R. Co., 14 6^. C. Q. B. 328. 56. When stock are deemed to be mulling at large.* — (i) Generally.— Q^x- tleare not to be presumed as lawfully going at large. There must be proof that the town * A steer temporarily separated from rest of herd is running at large, see 35 Am. & Eno. R. Cas. 134, abstr. See also post, 152-1 5f>, 187, 205, 20G. 116 ANIMALS, INJURIES TO, flfl. gave permission. Perkins v. Eastern R. Co., 29 Me. 307. When the owner of a farm, by an arrange- ment with the occupant of an adjoining farm, allows his stock, with which is a bull more than a year old, to run across the line on the latter farm to graze, and both farms are otherwise inclosed, such bull is nut run- ning at large within the meaning of |). 6725, Gen. Stat, of Kansas, 1889. Missouri /'ac. Ji. Co. V. Shumaker, 46 Kan, 769, 27 Pac. Rep. 126. Plaintifl's colt, 5 weeks old, was following its dam, which was being led, when it ran against a barb-wire fence maintained by a railroad company and was killed. Held, that it being the universal custom to allow colts of that age to follow their dams, the colt could not be said to be "running at hirge" within the meaning of the statute. Hillyard v. Grand Trunk R. Co., 23 Aw. &* Eng.^R. Cas. 154, 8 Ont. 583— DISTIN- GUISHING Markham v. Great Western R. Co., 25 U. C. Q. B. 572 ; Cooley v. Grand Trunk R. Co., 18 U. C. Q. B. 96. Plaintifl's son, as it was getting dark, was taking three horses along a road which crossed defendant's railway, riding one, lead- ing another, and driving the third. This last horse, being from sixty to one hundred feet in front, attempted to cross the track as a train approached, and was killed. Held, that the horse was not " in charge of " any person within Consol. Stat. ch. 66, § 147, and that the plaintiff could not recover. Mark- ham V. Great Western R. Co., 25 U. C.Q. D. 572. — Reviewing Thompson v. Grand Trunk R. Co., 18 U. C. Q. B. 94.— Distin- guished IN Hillyard v. Grand Trunk R. Co.. 8 Ont. 583. In the following cases animals have been held not to be " running at large," within the meaning of the statutes : Cows left in a highway for the temporary purpose of milking them, and with the in- tent to put them within inclosures. Bulkley v. Atw York St* N. H. R. Co., 27 Conn. 479. —Approved in Rehman v. The Railroad Co., 5 Phila. (Pa.) 450. Disapproved in North Pennsylvania R. Co. v. Rehman. 49 Pa. St. loi. Followed in Pearson v. Mil- waukee & St. P. R. Co., 45 Iowa 497. Cattle grazing upon inclosed lands which have a railroad track running through them. Gooding v. Atchison, T. &> S. F. R. Co., 20 Am. &* Eng. R. Cas. 466. 32 Kan. 150, 4 Pac. Rep. 136.— Distinguishing Kansas Pac. R. Co. V, Landen, 24 Kan. 406. Fol- lowing Atchison, T.& S 7. R. Co. v, Riggs, 31 Kan. 632. Stock in charge of a herder subject to his control. Keeney v. Oregon R. &• jV. Co., 42 Am. »S- Eng. R. Cas. 619, 24 Pac. Rep. 233, 19 Oreg. 291. A cow escaping from a boy who was driving her. Phillips v. Canadian Pac. R. Co., I Man. 1 10. (2) /« /o^vii.— l'he words "running at large," as applied to live stock, imply that the stock so at laij;L' is not under the control of tiic owner. Hammond v. Chicago (jr* N. \V. l\. Co., 43. loii'a 168, 14 Am. Ry. Rep. 41 2. — Following Hinman v. Chicago, R. I. & P. R. Co., 28 Iowa 491. A sucking colt which left its mother, who was being led by her owner, and wandered upon the track at the depot grounds and was injured, was running at large within the meaning of the Iowa statutes. Smith v. Kansas City, St. J. &• C. B. R. Co.. 58 Iowa 622, 12 A^. IV. Rep. 619. Within the meaning of § 1289 of the Iowa Code, a horse which has escaped from his owner's control and stillhas a bridle upon it is " running at large." Welsh v. Chicago, li. &- Q. R. Co., 53 Iowa 632, 6 A^. IV. Rep. 13. Cattle escaping while being driven in charge of their owner along a highway and rnnning on to a railroad track are running at large, within the meaning of the Iowa statutes. Smith v. Chicago, R. I. &<• P. R. Co., 34 Iowa 96.— Quoting Hinman v. Chi- cago, R. I. & P. R. Co., 28 Iowa 491. A team of horses which are harnessed to a wagon, and which have escaped from the control of their owner or driver, are " live stock running at large," as used in § 1289 of the Iowa Code. Inman v. Chicago, M. &• St. P. R. Co., 60 Iowa, 459.— Reviewing Welsh V. Chicago, B. & Q. R. Co., 53 Iowa 632. Horses hitched to a sleigh in charge of a driver who is intoxicated and in a drunken stupor, are not running at large. Grove v. Burlington, C. R. &* N. R. Co., 75 Iowa, 163, 39 N. IV. Rep. 248. (3) In Minnesota — Missouri. — The court erred in charging that cattle, when on a highway upon their owner's premises, are not going at large within the purview of the statute, fohnson v. Minneapolis Sr* St. L. R. Co., 43 Minn. 207. 45 N. IV. Rep. 1 52. Under tlie Missouri statutes providing that any county may by a vote render oper- ANIMALS, INJURliiS TO, 57 . 153. In Alabama, where It is lawful for the owner of stock to permit them to run at large, such owner is not thereby precluded from recovering injuries done to the stock by trains while stock may be trespassing on the track. Alabama G. S. R. Co. v. Powers, 19 .\m. (S- Eng. R. Cas. 502, 73 Ala. 244. — Distinguishing Mungerz/. Tonawanda R. Co., 4 N. Y. 349; Jackson v. Rutland & B. R. Co., 25 Vt. 150; Pittsburg, C. & St. L. R. Co. V. Stuart, 71 Ind. 500; Price v. New Jersey R. & T. Co.. 31 N. J. L. 229, 32 N. J. L. 19; South & N.Ala. R. Co. ?-«. Williams, 65 Ala. 74; Alabama G. S. R. Co. v. McAlpine, 71 Ala. 545. The fact that the " stock law " makes it unlawful for the plaintifT to permit his cow to run at large affords, no excuse for an in- jury to her resulting from the defendant's negligence. Roberts v. Richmond &* D. R. Co., 20 Am. &» Eng. R. Cas. 473, 88 N. Car. 560. 58. Degree of care required of eoiiipaiiy, generally.t— If a person per- mits his stock to run in a field through which an unfenced railroad runs, the com- pany is only required to exercise ordinary care and prudence to prevent injuring the cattle. Peoria, D. &• E. R. Co. v. Dugan, 10 ///. App. 233. If those in charge of a moving train fail to exercise ordinary care to avoid injuring live stock on the track, the company will be liable, though the stock has escaped from the owner's premises and gone on the track, »See ante, 29-3i£, ^7 ; post, 187, 200, 204. Injury to cattle running at large in violation of statue, see notes, 20 Am. & Eng. R. Cas. 480, 23 /d. 210, 49 /» A. R. Co., 35 Am. &^ Eng. R. Cas. 135, 29 So. Car. 152, 7 S. E. Rep. 60.— Quoting Simkins v. Columbia & G. R. Co., 20 So, Car. 258.— Applied in Harley v. Eutawville R. Co., 31 So. Car. 151. Much less care is required of railroad companies in South Carolina since the pass- age of the stock law, in providing against stock on the track, than was required before its passage. Joyner v. South Carolina R. Co. , 29 Am. 6r» Eng. R. Cas. 258, 26 So. Car. 49, i S. E. Rep. 52.~FoLLOWiNG Jones v. Colum- bia & G. R. Co., 20 So. Car. 258 ; Simkins v. Columbia & G. R. Co., 20 So, Car. 265.— Ap- plied IN Harley v. Eutawville R. Co., 31 So. Car. 151. 60. Liability for gross negligence.* A company is not liable except for gross *Seea»i/ S. F. R. Co. v. Ellis, 54 Fed. Rep. 481, 10 U. S. App. 640, 4 C. C. A. 454— Following Gulf, C. & S. F. R. Co. V. Washington, 49 Fed. Rep. 347 ; 4 U. S. App. 121, I C. C. A. 286, Gulf, C. & S. F. R. Co. V. Johnson, 54 Fed Rep. 474. * Duty of company's employes to keep look- out for stock on track, see note, 11 L. R. A. 460; or on right of way, see note, 56 Am. & Eng. R. Cas, 192; or in proximity to the track, see 40 Am. & Eng. R. Cas. 176, abstr. See also /m/, 60, 187, 200, 218, 284. ANIMALS, INJURIES TO, 02. 110 Under the Arkansas l.iw, as enforced in the Indian Territory, an engineer running a train is required to l» Eng. R. Cas. 497, 43 /ir*. 225, It is the duty of an engineer in charge of a moving train of cars to maintain a look- out, as continuously as his other duties will permit, for obstructions on the track, and when, in an action against a railroad com- pany for the killing of a mare by a moving train, the evidence is in conflict upon the question as to whether such lookout was maintained, a charge stating the duty owing by the defendant in the operation of its trains to the owners of stock is faulty in ig- noring the inquiry as to the engineer's ob- servance of the duty to maintain a proper lookout. Mobile &> B. R. Co. v. Kim- brough, 96 Ala. 1 27, 11 So. Rep. 307. It being the duty of the servants of the railroad company, so far as consistent with their other and paramount duties, to use ordinary care to avoid injuring cattle on the track, they are bound to adopt the ordinary precautions to discover danger, as well as to avoid its consequences after it becomes known. Nuzum v. Pittsburgh, C. &> St. L. R. Co., 30 W. Va, 228, 4 S. E. Rep. 242.— Distinguished in Spicer v. Chesapeake & O. R. Co., 34 W. Va. S14. In case of injury to live stock, railroad companies will be held liable when their employes, by exercising the necessary vigi- lance, might have seen at a proper distance the animals on the track, and with due re- gard to the safety of passengers have stopped the train before it struck them, but failed to do so. Fossier v. Morgan's L, &* T. R, &* S, Co,, McGloitt (La,) 349. The Tennessee act of 1856, ch. 94,8 8, re- quires all railroad companies within the state to keep a special watchman upon the locomo- tive when in motion, to watch the track and give warning of any obstacle or obstruction. This is a special duty to be performed by one person as his sole occupation while the train is in motion, and if in the absence of such special watchman injury result to per- son or properly by being overrun, the com- pany is liable in damages as for negligence. Memphis &* C. R. Co. v. Dean, 5 Sneed (Tenn,) 291.— FOLLOWED IN Louisville & N. R. Co. V. Stone, 7 Hcisk. (Tenn.) 468. It being the duly of the servants of the railroad company, so far as consistent with their other and paramount duiics to their passengers, to use ordinary care to avoid injuring cattle on the track, they are bound to adopt the ordinary precautions to dis- cover danger, as well as avoid its conse- quences ifter it becomes known. Baylor v, Baltimore &^0, R. Co.,g IV. Va. 270.— FOL- LOWED IN Laync v. Ohio River R. Co., 35 W. Va. 438, 14 S. E. Rep. 123. Quoted in Coyle V. Daltimore & O. R. Co., 11 W. Va., 94. The rule that in the case of an animal trespassing on the track of a company, with- out the fault of the company, there is no duty of watchfulness on the part of those in charge of its trains to ascertain if the ani- mal be there, and that their duty of care with respect to it arises only upon their dis- covering its peril, applies as well in the case of an animal wrongfully upon a highway at a railroad crossing. Palmer v. Northern Pac. R. Co., 31 Am. &• Eng. R. Cas, 544, 37 Minn. 223, 33 A'. IV. Rep. 707, 5 Am. St. Rep, 839.— Following Locke v. First Div. St. Paul & P. R. Co., IS Minn. 350 ; Witherell V. Milwaukee & St. P. R. Co., 24 Minn. 410. The extent of the duty which a railroad company owes to stock upon its track, is that the engineer in charge of the train at the time shall use ordinary or reasonable care after the stock is discovered by him to prevent injury to it, and this negatives the idea that the engineer is bound to keep a lookout for stock. Memphis &• L. R. R. Co. V. Kerr, 52 Ark. 162, 40 Am, &* Eng. R. Cas. 171, 12 S. W. Rep. 329.— Quoted in Gulf, C. & S. F. R. Co. V. Washington, 49 Fed. Rep. 347, 4 U. S. App. 121, i C. C. A. 286. 120 ANIMALS, INJLRIHS TO, (12. (2) Degree of care* — Locomotive engi- neers are required to use reasonable care to discover cattle on the track and to avoid in- juries thereto in the Indian Territory, where there is no law requiring companies to fence their tracks, nor the owners of animals to fence. Gulf. C. &- S. F. R. Co. v. Wash- ington, 49 Fed. Rep. 347, 4 U. S. App. 121. I C. C. A. 286.— Quoting Memphis & L. R. R. Co. V. Kerr, 52 Ark. 162, 12 S. W. Rep. 329; Little Rock & Ft. S. R. Co. v. Finley, 37 Ark. 562 ; Little Rock & Ft. 6. R. Co. 7/. Holland, 40 Ark. 336— FoL. owed IN Gulf, C. & S. F. R. Co. V. Childs, 49 Fed. Rep. 358, 4 U. S. App. 200, I C. C. A. 297 ; Gulf, C. & S. F. R. Co. V. Martin, 49 Fed. Rep. 359. 4 U. S. App. 198, I C. C. A. 298 ; Gulf, C. & S. F. R. Co. V. Ellis, 54 Fed. Rep. 481, 10 U. S. App. 640, 4 C. C. A. 454- Though stock be wrongfully upon a rail- road track, yet it is the duty of engineers to keep a constant and careful look-out for them, and to use ordinary care and dili- gence to discover and to av jid injuring the same. Little Rock &* Ft. S. R. Co. v. Fin- ley, 1 1 Am. &' Eng. R. Cas. 469, 37 Ark. 562. It is the duty of trainmen to use ordinary care in keeping a lookout for cattle on the track, and it is not sufficient to use due care after they are discovered, if by the use thereof they might ha-e been seen in time to have stopped the train and avoid an injury thereto. Chicago 6>» A. R. Co. v. Legg, yi III. App. 218.— Quoting Toledo, W. & W. R. Co. V. Barlow, 71 111. 640. In nning its trains at places where its tracko ire not fenced, and where animals are liable to stray upon its tracks, a railway company is under the duty of keeping a reasonable lookout for such animals. Ac- cordingly, when slock thus straying upon its tracks is killed by one of its trains, the railway company is responsible therefor, if its employes could, by the exercise of reasonable care, have discovered the stock in time to have avoided injury thereto. Hill v. Missouri Pac. R. Co., 49 Mo. App, 520. The company owes to the owner of do- mestic animals the duty of reasonable out- look for such animals straying upon its track. The conipany is bound to adopt the ordinary precautions to discover that the * See ante, 48, 49, 58 ; post, 1 16, 141, 180> cattle are on the track, as well as to avoid injuring them after they are seen. Gunn v. Ohio River R. Co., 54 Am. 6- Eng. R. Cas. 167, 36 ]V. I'a. 165, 14 S. E. Rep. 465. Layne v. Ohio River R. Co.. 35 W. Va. 438, 14 S.E. Rep. 123. (3) What is performance of this duty. — An engineer must keep a constant look- out for obstructions as well as live stock on the track, but this duty is discharged when he gives it that care and watchfulness, in connection with his other duties, which a prudent and careful person would give. East Tenn.. V. &• G. R. Co. v. Bayliss, 22 Am. (S>» Eng. R. Cas. 596, 75 Ala. 466.— Re- viewed IN East Tenn., V. & G. R. Co. V. Deaver, 79 Ala. 216. While it is the duty of those in charge of a moving train to keep a lookout for stock on the track, yet this duty must be regu- lated with reference to their other duties, and if it appears, on account of their other duties, that neither the engineer nor fire- man, for a short time, looked ahead, the company will not be liable for an animal killed. Howard v. Louisville, N. O. &* T. R. Co., 67 Miss. 247, 7 So. Rep. 216. While it is the duty of those in charge of trains to keep a lookout for stock on the track, and, if discovered, to do what they can to avoid injuries thereto, yet this duty is limited to the use of such means as are consistent with their own safety and the safely of passengers that they may be carry- ing. Carlton v. Wilmington Eng. R. Cas. 512, 79 Mo. 336. — Followed in Mil- burn V. Hannibal & St. J. R. Co., 21 Mo. App. 426. If the engineer in charge of a train, after discovering live stock on or near the track in danger, fails to use proper effort to avoid injuring them, the company will be liable for any injury done. Welch v. //annibal &* St. J. R. Co., 20 Mo. App. 477.— Not Fol- lowed IN Hill V. Missouri Pac. R. Co., 49 Mo. App. 520. If the injury was the result of the defend- ant's actual negligence, and if the defend- ant's servants discovered the danger in time to avoid the injury, and if it could have been avoided without imperiling the persons or property intrusted to the defendant for transportation, then the jury should find for the plaintiff. White v. St. Louis &■' S. F. R, Co. , 20 Mo. App. 564. Persons in charge of a train are not justi- fied in regarding cattle that are seen on an uninclosed track as unlawfully there, so as to relieve them from the duty of using propei precautions to prevent injuries thereto; and if the stock be injured through the negli- gence or mismanagement of those in charge of the train, the company is liable. Raiford V. Mississippi C. R. Co., 43 Miss. 233. Railroads must govern themselves by the actual facts, and if they observe a drove of cows upon the railroad, whether properly or improperly or negligently there, they should indulge in no presumptions that Ihey are properly attended, and will be driven off in abundant season to escape collision with a railroad engine, but should exercise a de- gree of care and precaution proportioned to the impending danger and the probabilities ANIMALS, INJURIKS TO, 04,«r». lii of a collision. Cn/rf v. Xric ]'or/,- (S-» //. A". Co.. so Barb. (A'. K) 39. In an action for injury to the plaintiff's horses, if it appears that the road runs through plaintiff's land, and the horses got upon the track of the road without any neg- ligence or default of his, and were killed by the company's engine, the company will be liable for the damage sustained by the plain- tiff, if the damage was done by the failure of the engineer to take the proper care to avoid doing the injury. Tioitt v. Virginia &* T.R. Co., 23 Grail. {Va.) 6i9.~QuoT- ING AND DISAPPROVING New York & E. R. Co. V. Skinner, 19 Pa. St. 298. Quoting Jackson v. Rutland & B. R. Co., 25 Vt. 150. An engineer has no right to presume that a cow or other animal will leave the track as ilie engine approaches in time to avoid injury. Overton v. Indiana, B. &> W. A'. Co., I Inci. App.\}fi, 27 A'. E. Rep. 651.— Quoting Dennis v. Louisville, N. A. & C. R. Co., 1 16 Ind. 42. — Elinsleyv. Georgia Pac. R. Co., (Miss.) 10 So. Rep. 41. 04. Duty to avoid injury to animal discovered near tlie tracli.*— Persons in charge of moving trains are not required to exercise the same diligence where stock is seen in dangerous proximity to the track, as if they were actually on the track. West- ern R. Co. V. Lazarus, 88 Ala. 453, 6 So. Rep. 877. The diligence of an engineer in charge of a train to avoid injuries to stock does not necessarily commence when he perceives the stock on the track, but it may begin earlier when he sees the stock in dangerous proximity to the track. Alabama G. S. R. Co. v. Powers, 19 Am. &* Eng. R. Cas. 502, 73 Ala. 244.— Quoting South & N. Ala. R. Co. V. Jones, 56 Ala. 507. The duty of the engineer, or other per- son in charge of a moving train, to take precautions against inflicting injuries upon live stock arises not only when he sees an animal on the track, or in dangerous proxim- ity thereto, but also when, by the exer- cise of due diligence, he might have seen it. A failure in either of these respects is negligence for which the railroad company is liable. Louisville » St. J. R. Co., 29 Mo. App. 48.— Followed IN McCormick v. Kansas Ciiy, Ft. S. & M. R. Co., 50 Mo. App. 109. — Cathcart v. Han- nibal . du;> care, the company will be liable where tht engineer fails to make an c^y^.a \o stop a train, and fails to make any elfori - frig them from the track after they arc seen. Af - Master v. Montana Union R. Co., 49 ,1in. cj"* Eng. R. Cas. 564, 1 2 A/ont. 1 63. When the employes in charge of the trains of a railway company discover ani- mals upon the track they are bound to ex- ercise proper care and prudence to prevent injury to them, .jnd a mere slackening of speed will not b*; considered sufficient to relieve them from responsibility. Pontiac Pac. J. R. Co. V. Brady, 4 Montr. L. R. (Q. B.) 346. (2) IV/ten need not stop. — It is not always necessary that those in charge of a railroad train should stop it or slacken its speed on discovering stock on the track. Ordinary prudence requires them to promptly en- deavor to drive them off by sounding the whistle, but does not require them to stop or slacken the speed of the train, wiien they may reasonably believe that they will leave the track in time, and there is no cause or reason to suppose there is any risk or danger. Little Rock . Hannibal & St. J. R. Co., 27 Mo. App. 573. Quoted in White v. St. Louis & S. F. R. Co., 20 Mo. App. 564. (5) Illustrations. — Where the track of a railroad passed through a cut 80 rods long, and a horse of the owner of the land was near the track at the entrance of the cut, and the whistle of an approaching engine *See M. V. R. Co. v. Brumfield, 64 Miss. 637, I So. Rep. 905. Where an engineer sees a cow about to cross the track near to the train, he is not re- quired to try to stop the train if it is apparent that the attempt would be useless. Alabama G. S. R. Co. V. Chapman, 31 Am. &* Eng. R. Cas. 394, 80 Ala. 615, 2 So. Rep. 738. The Alabama statute making it the duty of engineers to use all means to stop the train on perceiving any obstructions on tiie track of the road, does not apply to an animal running by the side of the track, but which suddenly turns and springs on the track too near the train to avoid an acci- dent. East Tenn. V. &* G. R. Co. v. Bayliss, 77 Ala. 429, $4 Am. Rep. 69.— Approving Louisville & N. R. Co. v, Reidmond, ii Lea (Tenn.) 205. An engineer of a train is not bound to stop it upon discovering cattle on the right of way, if it reasonably appears that sound- ing the alarm-whistle will drive them off and avoid danger. Ohio 6^ M. R. Co. v. Stribling, 38 ///. App. 17. Those in charge of trains are not requirt-l to stop them or even check the speed upon seeing cattle near tiie track, unless it ap- pears that it is necessary to do so to avoid injuring them. New Orleans &^ N. E. R. Co. V. Bourgeois, 66 Miss. 3, 5 So. Rep. 629. • .See ante, 04, 05. If an engineer sees cattle quietly grazing along an unfenced track he is not bound to stop the train as a precautionary matter, and if they take fright and run toward the track, it is sufficient if he does all in his power to avoid a collision after the danger becomes apparent. Young v. Hannibal Sf* St. J. R. Co.,ig Am. &• Eng. R. Cas. 512, 79 Mo. 336. The failure to stop a train on seeing an animal by the side of the track a short dis- tance ahead of the train is not negligence, when there is nothing in the actions of the animal to indicate that it will attempt to go upon the track, until it is too late to stop. Savannah, F. &* W. R, Co, v. Rice, 23 Fla. 575, 3 So. Rep. 170. Negligence cannot be predicated from the fact that the engineer saw, or might have seen, the cow near the track, as was done by the instructions in tl)is case. It was not the duty of the engineer 10 stop his train or slacken its speed, or sound '.he alarm, merely because he saw, or might have seen, the cow grazing near the track. Otherwise, trains could not make the necessary headway and form the necessary connections. Milburn V. Hannibal 6f St. J. R. Co., 21 Mo. App. 426.— Following Young v. Hannibal & St. J. R.Co.,79 Mo. 336.— Followed in Sloop V. St. Louis, I. M. & S. R. Co., 22 Mo. App. 593- Where those in charge of a moving train see cattle near the track, they are not re- quired to stop the train or attempt to avoid injuring them, unless it is reasonably ap- parent that the animals will go on the track before the train passes. Grant v. Hannibal &* St. J. R. Co.. 25 Mo. App. 227. Where cattle are seen moving on a line with the track, it is the duty of the trainmen to use proper precautions in frightening them away or stopping the train, though not on the track, and if, by failing to do so, the stock suddenly turns and is injured while at- tempting to cross the track so near the en- gine that it is impossible to stop, the com- pany will be liable. South &* N. Ala. R. Co. V. Jones, ^d Ala. 507.— Distinguished IN .-Mabama G. S. R. Co. v. McAlpine, 22 Ami. & Eng. R. Cas. 602, 75 Ala. 113. Quoted in Alabama G. S. R. Co.t/. Powers, 19 Am. & Eng. R. Cas. 502, 73 Ala. 244. Those in charge of a train are not re- quired to stop it upon seeing cattle some fifty feet from the track, but they are re- quired to exercise ordinary prudence by ■■1 138 ANIMALS, INJURIES TO, 08, «0. watching to see 't( they are likely to cross the track. Missouri Pac. R. Co, v. Reynolds, 13 Am. Sf* Eng. R. Cas. 510, 31 Kan. 132, i Pac. Rep, 150. 08. Duty to reverse engine.— A lo- comotive engineer is not required to reverse his engine to avoid injur'ng cattle on the track if it appears that such reversal would endanger tlie lives of the trainmen or of pas- sengers, but the company is not excused on the ground that suoh reversal would be in- jurious to the machinery. East Tenn., V, (S- G. R. Co. v. Selcer, 7 Lea (Tenn.) SS7- — Following Nashville & C. R. Co. v, Anthony, i Lea (Tenn.) 516. 69. Duty to Mlackcu speed.* - (i) Generally. — A party whose cattle, without fault on his part, escape from his inclosure and wander on to a railroad track, and are there killed by alleged carelessness in not slackening the speed of the locomotive, can- not recover for their loss from the railroad company. Price v. New Jersey R. , 472. Where a cow is killed upon a railroad track by a passing train, if she was in plain view of the engine-driver and fireman in charge of the train, and was seen, or could have been seen by them by the use of ordi- nary care, in time to have slackened the speed of the train, and no efforts were made in that direction, this will be such negligence as renders the company liable. Rock/or d, R, I. &* St. L. R. Co. V. Rafferty, 73 ///. 58. If those in charge of a train see a cow on the track two or three hundred yards ahead, the company will be liable for an injury thereto if no attempt is made to slacken the speed, even though the cow be wrongfully on the track ; but where it appears that the cow was suddenly driven on the track by a dog, the company will not be liable if it ap- pears that she was killed without fault on •ObDgation to slacken speed, see notes, 13 Am. & Eng. R. Cas. 520; 38 Id. 308, abslr. See also •«/^ .32; post. 198, 201, 210, 21 1. the part of the engineer. Illinois C. R. Co, v. Wren, 43 ///. 77- An engineer is guilty of negligence where he discovers stock on the track and blows the alarm-whistle, but fails to check the speed of his train and runs down the stock and kills it. Bullington v. Newport News &• M, V, Co.. 32 VV. Va, 436, 9 S. E, Rep. 876. (3) When need not check speed. — A rail- road company cannot be held liable for neg- ligently killing live stock on proof that the rate of speed was not slackened, nor the whistle sounded, where the circumstances of the case show that such efforts would have been unavailing. Flattes v. Chicago, R. I. &* P. R. Co., 35 Iowa 191, 5 Am. Ry. Rep. 518. A railroad company will not be liable to the owner of horses killed on the track by reason of the engineer not slackening the speed of the train, unless it appears that he acted maliciously or wantonly. Boyle v. New York, L. E, &* W, R, Co,, 39 Hun, (N. y,) 171 ; affirmed in 115 A'^, Y, 636, mem,, 2 Silv, App. 326, 21 A'^. E, Rep, 724, 23 A^ Y. S. R, 731.— Quoting Darling v, Boston & A. R. Co., 121 Mass. 118. Reviewing Maynard v, Boston & M. R. Co., 115 Mass. 458. The failure to slacken the speed of a train on approaching a highway crossing is not negligence per se, and will not in itself en- title an owner of animals killed to recover against the company. Zeigler v. North Eastern R. Co., 7 So. Car, 402.— Applied in Barber v. Richmond & D. R. Co., 34 So. Car. 444. (4) Must consult safety of passengers,* — Railroad companies are not required to diminish the speed of passenger trains in order to avoid injuring live stock on the track, if so doing would increase the danger to the passengers. Sandham v. Chicago, R, I, &* P. R. Co,, 38 Iowa 88. A railroad company will not be liable for killing live stock on the track by reason of a failure to check the speed of a train, where such checking would endanger property being carried, or the lives of passengers ; but it is otherwise if no such danger would re- sult from checkiig the speed. Pryor v. St, Louis, K, C, &* N, R, Co,, 69 Mo, 215. (5) Illustrations, — Und- / Alabama Code 1876, § 1699, railroad companies are only re- quired to reduce the speed of their trains See aiiu, ilH, (U>, 08. ANIMALS, INJURIES TO, 70. 129 when approaching road-crossings in "a curve or cut where the engineer cannot see at least one quarter of a mile ahead," and it is error in an action for damages for killing stuck to instruct the jury that it is the duty of railroads to check the speed of their trains when approaching a public crossing, when the undisputed evidence shows that the killing took place in an open field, the >;round being level, and there being neither carve nor cut in that part of the road ; that the train was approaching and was within 175 or 200 yards of u flag-station ; and that there was a public road-crossing ahead of the train and within 300 or 400 yards of the scene of the collision. Nashville, C. &^ St. L. K. Co. V. Hembree, 38 Am. &* Eng. R. Cas. 300, 85 Ala. 481, 5 So. Rep. 173. Where the evidence tends to prove that a liorse ran 400 yards on the track, on a bright moonlight night, and in the full glare of the headlight, gradually increasing his speed until overtaken, and yet there was no slack- ening of the speed of the engine, this is sug- gestive of recklessness on the part of the company's agents, and the court will refuse to disturb a verdict against the road. Macon Sf W. R. Co. V. Lester, 10 Ga. 911. Where a railroad company is charged with negligently killing a horse, the company cannot be said to be entirely free from neg- ligence under proof that the engineer saw tlie horse running some forty yards ahead of Ills train, but ran on without perceptibly checking its speed, and without sounding the whistle, claiming that it would have been impossible to have prevented striking the animal. Bedford v. Louisville, N. O. &* T. R. Co., 6$ Miss. 385, 4 So. Rep. 121. Where it appeared that the train was run- ning at a greater than usual speed upon a straight part of the road, in the daytime, and that one of several cattle that were feeding near, and crossing the road was killed by the locomotive,— /;tf/((^, that it was negligence that the speed was not lessened, nor the usual mode of driving off stock by the blowing of a steam-whistle resorted to. Ay cock v. Wilmington &* IV. R. Co., 6 /ones {jV. Car.) 331. -Distinguished in Laws v. North Carolina R. Co., 7 Jones (N. Car.) 468. Reviewed in Doggett v. Richmond & D. R. Co., 81 N. Car. 459. The plaintiff's mule was run over and killed. On the trial, the company proved that the engineer was on the lookout ahead ; that he saw the mule when it dashed into I D. R. D.— g. the road ; that he immediately sounded the alarm-whistle, and that one of the brakes was put down, but as to whether the otlier two brakes were put down no proof was made, //eld, to exempt itself from damages under the Tennessee statute it was incum- bent on the company to show that all three brakes were put down, Memphis &* C. R. Co V. Smith, 9 //eisL (Tenn.) 860.— Disap- proved IN East Tenn., V. & G. R. Co. v. Scales, 2 Lea (Tenn.) 688. Explained in Nashville & C. R. Co. v. Anthony, i L«a (Tenn.) 516. In an action against a railroad company for negligently killing a mule, plaintiff's evidence showed that it was killed while standing in a space from three to seven feet wide, between the track and a bank on which was a fence ; that it could have been seen 500 yards, and that the train could have been stopped in 200 yards, but the train was running 30 miles an hour and passed without signals and without check- ing its speed, //eld, that it was error in the trial court to sustain a demurrer to plain- tiff's evidence. Z/eard v. Chesapeake 6- O. R. Co., 26 W. Va. 455. 70. Right to run at reasonably high rate of speed.*— Railroad compa- nies are not required to regulate the manner of running their trains with reference to live stock that may stray upon the track, but have a right to run at a reasonable speed, either day or night, being controlled therein entirely by the exigencies of their business and by custom. Raiford v. Mississippi C. R. Co., 43 Miss. 233. A railroad company will not be adjudged negligent in killing stock on proof merely showing that the train was running faster than usual. Plaster v. Illinois C. R. Co., 35 fozva 449, 5 Am. Ry. Rep. 528. The rate of speed to be adopted in the running of trains is to be determined from the nature of the business and the amount of carrying that the company is required to do. If the exigencies of business de- mand a rapid transportation, the companies will not be 'iable, because the danger to stock is increased by running fast trains, yet companies are not allowed to relax their efforts to protect live stock from injury. ♦ Running train at a high speed not negligence per St, see note 38 Am. & Eng. R. Cas. 304, abitr. Speed of train when animals are on track, see notes, 19 Am. & Eng. R. Cas. 496, 511. 130 ANIMALS, INJURIES TO, 71,72. li II r J New Orleans, J. &- G. N. H. Co. v. Fu/J, 46 Aliss. 573. 2 Am. Ky. Rep. 439. A railroiid company is not liable for kill- ing stock on tlie track where tlie train is not exceeding the statutory limit, and the en- gineer, as soon as he saw the stock, or with proper care might have seen ii, did every- thing tliat he could to avoid the accident, though the train was running faster than schedule time. Seawell v. Raleigh &* A. R. Co., 106 iV. Car. 272, 10 S. E. Rep. 1045.— Following Winston v. Raleigh & G. R. Co., 90 N. Car. 66. Where owners of live stock permit them to run at large in the vicinity of an unin- closed railroad track, the company is only required in the legitimate conduct of its business to exercise ordinary and reasonable care to avoid unnecessary injury thereto. The speed at which trains shall be run is to be determined by reference to its other busi- ness, and tlie company is not bound to con- sider the increased risk to live stock running at large, and lessen the speed of its trains on that account. Central Ohio R. Co. v. Lawrence, 13 Ohio St. 66.— Distinguished IN Burlington & M. R. R. Co. v. Brinck- nian, 1 1 Am. & Eng. R. Cas. 438, 14 Neb. 70. Reviewku in Pittsburgh, C. & St. L. R. Co. V. McMillan. 7 Am. & Eng. R. Cas. 588, 37 Ohio St. 554. In consideration of the public conveyance and accomodation, railroad companies are to be considered in the exclusive possession of lands purchased for their right of way, and as possessing a license to use the great- est obtainable rate of speed, without refer- ence to property or persons that may go upon the track. New York &* E. R. Co, v. Skinner, 19 Pa. St. 298. Proof that an engineer passed a station at a greater rate of speed than that pre- scribed by the rules of the company, and that a watchman gave an incorrect signal as to an obstruction on the track, will not makeacompanyliable for killing animals 150 rods beyond a station, where it does not ap- pear that the incorrect signal was the result of negligence on the part of the watchman, and the rate of speed was not art unusual one. Stern v. Michigan C. R. Co., 76 Mich. 591, 43 A'. W. Rep. 587. 7].Biiiiuing at unlawful rate of speed.— If a railroad company knowingly runs its trains under such conditions as renders it impossible for those in charge of them to prevent injury to stock straying upon the track, and such injury results, it ought to be and is held responsible for the loss; especially, when the train is run in the nighttime at such a high rate of speed that stock cannot be seen in time to prevent in- jury by ordinary means and appliances. Central R. <&«• B. Co. v. Ingram, 98 Ala. 395. A railroad company will be liable for neg- ligently killing stock where the train at the time is being run, on a straight track, at night, at such a speed as cannot be stopped within the distance in which cattle may be seen on the track with the use of a liead- light. Memphis &• C. R. Co. v. Lyon, 62 Ala. 71.— Following Tanner v. Nashville & D. R. Co. (M. S.). — Reviewed in East Tenn., V. & G. R. Co. v. Deaver, 79 Ala. 216. Proof that stock was killed by a train moving at a rate of speed prohibited by law makes the company liable. Houston 6*» T. C. R. Co. v. Terry, 42 Tex. 451. The engineer on a government railway train was guilty of negligence for which the Crown was liable under Rev. St. Canada, ch. 38, § 23, and 50-51 Vic. ch. 16, § 16 (c), for allowing his train to run over and kill a horse, when it appeared that at the time of the accident the train was being run faster than usual to make up time, that it had passed a station without slowing up, and was approaching a crossing at full speed, the engineer admitting that lie saw some- thing on the track but paid no attention to it. Gilchrist v. Queen, 2 Can. Exch. 300. 72. Eft'ect of iucrea8iii^ rate of speed.— Where it is apparent that cattle were discovered on a crossing too near the train to avoid a collision, the company will not be liable because those in charge increas- ed the rate of speed in order to lessen the dan- ger to the train. Owens v. Hannibal 6- St. J. R. Co., 58 Mo. 386, 9 Am. Ry. Rep. 19. If a locomotive is running tnrough an in- corporated city at less than six miles an hour when animals jump into a trestle and render a collision inevitable, the speed may be increased, notwithstanding Mississippi Code 1880, § 1047, in order to strike them with such momentum as to knock them off the track and avoid throwing the train from the bridge. Chicago, St. L. <&«• N. O. R. Co. V.Jones, 1 1 Am. &» Eng. R. Cas. 450, 59 Miss. 465. Wbi^re a train which injures cattle is run without s>topping, in order to escape liabil- ity the company must show that its em- ANIMALS, INJUKIKS TO, 73. 181 ploy^s were guilty of no defuult, and tliut a collision was inevitable, and that by increas- ing the speed of the train the danger to the train and persons theron was diminished. Chicago, St. L. &* N. O. Ji. Co. v. Jones, 1 1 Am. &* Eng, R. Cas, 450, 59 Miss. 465. Upon the approach of the railroad train tu I lie horses, they ran along the side of the track a Ion}; distance, and were forced upon ilie track by an embankment, and were driven into a bridge, and some of them were injured by the train, its speed not hav- ing been diminished, hut having been in- creased ; and the remaining horses were in- jured on the bridge by another train which followed in a few minutes, the engineer of which did not discover the horses until he was near them, though the conductor jumped off the train and the fireman deserted his post, and when the signal was given there was no person to apply the brakes. Held, that the railroad company was guilty of negligence. Toledo, W. &* IV. Ji. Co. v. Milligan, 52 Ind. 505. 3, Necessity for Actually Touching Animal."* 73. When actual contact is neces- Hury.— (1) In Indiana.— \x. is well settled that under the statutes of Indiana prior to ihc law of 1885 there could be no liability of a railroad company for the death or injury uf an animal unless the same was killed or injured by an actual touching by the engine or cars or other carriages. The act of 1885 has not changed the statutory liability, and hence, where an animal is not killed by an actual touching by the engine, the company can only be sued on its common-law liabil- ity. Ft. Wayne, C. r injured, there must be proof, either direct or circum- stantial, of an actual collision between the animals and the train. Hesse v. St. Lout's, I. M. (&* S, A\ Co., 36 Mo. App. 163.— Re- viewing RIcwett V. Wyandotte, K. C. «S N. W R. Co., 72 Mo. 583. There can be no recovery for cattle alleged to have been killed by a train in the absence of any evidence to show a collision. Such evidence, however, need not be direct, but the collision may be inferred from facts and circumstances. Halferty v. Wabash, St. L. 6- /'. K. Co., 82 Mo. 90. (3) In Nebraska. — The true meaning of §§ I and 2 of ch. 72 of the Comp. St. of Nebraska is that the injury to stock must be caused by actual collision— that is, it must be done by the agents, engines, or cars of the company, or the locomotives, engines, or trains of any other corporation permitted and running over or upon the said road, or the wilful misconduct of the trainmen in the course of their employment — to make the company liable. Burlington &* M. R. R. Co. v. Shoemaker, 22 Am. &* Eng. R. Cas. 565, 18 Neb. 369. (4) In Texas. — Under Texas Rev. St., art. 4245, making railroads liable to the owner for the value of all stock killed or injured by the locomotive and cars of such railroad company in running their respective rail- roads, there can be no recovery unless the injury is caused by actual collision of the locomotive or cars with the stock injured. Houston . Co., 48 Ga. 1 52. No statutory liability is imposed upon railroads for damages to cattle that may fall into abandoned wells or tanks on its right of way, although occasioned by its failure to erect and maintain fences, as required by the Missouri Railroad Act,§43. The liability of a company in such case is, therefore, such only as is imposed by the common law. J/ui,--/ies V. Hannibal &^ St. /. R. Co., 66 Mo. 3:5.— FoLLOWEt) IN Turner z/. Thomas, 71 Ml). 596. Where a well is dug upon the right of way of a railroad company without their knowledge and consent, and a mule falls into it and is killed, the company cannot be held liable on the ground of negligence in not covering or securing such well. The act re- quiring railroad companies to fence their roads is only designed to protect the trav- elling community from accidents occasioned by stock getting upon the road, and also to prevent damage to such stock from their lia- bility to be run over and killed, and is not intended to extend their liability to the case named. Illinois C. Ji. Co, v. Carra/ter, 47 ^^^- 333-— Approved in O'Conner v. Illinois C. R. Co., 44 La. Ann. 339. 77. Injuries at or on bridges.— (I) W/ten company liable.— A railroad com- pany is liable for the death of a horse that goes upon the track where it is not fenced and runs ahead of a train until it falls into a bridge, where it was so injured as to die, it appearing that the track was on a fili from where the horse went on the track to the bridge, with but one narrow place where it could have escaped, though the train was stopped before reaching the horse. Young V. St. Louis, K. C. ^ N. R. Co.,\\Iinva 172. — Revikwim; l\ru & I. R, Co. v. liaskct, 10 Ind. 409; Latlcrtyi'. Hannibal & St. J. R. Co., 44 Mo. 291. — I'oLi.owEU IN Kraus 7'. Burlington, C. R. & N. R. Co., 55 Iowa 338. Reviewed in International & G.N. R. Co. V. Hughes, 31 Am. & Eng. R. Cas. 569, 68 Tex. 390. Under the Kansas act of 1874, ch. 94, § 5, making railroad companies liable for killing stock, but providing that the act shall not apply to any company " whose road is in- closed with a good and lawful fence, to pre- vent such animals from being on such road," in order to make the company liable (or killing stock there must not only be a lack of a fence, but also the lack of one which would have prevented the injury. In order to make the company liable, the in- jury must be the direct result of operating the road, but it is not necessary that there be actual collision between the engine and the animals injured where the injury was caused by falling into a tie-bridge. Atchi- son, T. &* S. F. R. Co. v. Jones, 20 Kan. 527. —Quoted in Missouri Pac. R. Co. v. Gill, 49 Kan. 441 ; International & G. N. R. Co. 7'. Hughes, 31 Am. & Eng. R. Cas. 569, 68 Tex. 290. Reviewed in Missouri Pac. R. Co. V. Eckel, 49 Kan. 794. The injuries resulting from the animals falling into the bridge were not within the scope of the Kansas act of 1874, ch. 94, § 5, although the company might be liable therefor on account of its negligence. Atchison, T. &* S. F. R. Co. v. Edwards, 20 Kan. 531, 20 Am. Ry. Rep. 311. The track of a railroad being unfenced, two mares got onto it, and, walking along, attempted to cross a bridge. The bridge being built of lies, with open spaces between, their legs slipped into these open spaces, and the animals became fastened in the bridge, receiving certiiin injuries therefrom. There was negligence, as the jury found, on the part of the company in the construction of the bridge causing these injuries. After- ward, a train approaching found the animals still fastened in the bridge. The trainmen proceeded to remove them therefrom, and in so doing the animals sustained still further injuries. Held, that the injuries done in re- moving the animals from the track were done in operating the road, within the mean- ing of the law of 1874 concerning injuries to stock. Atchison, T, » S. F. R. Co. v. Edwards, 20 Kan. 531, 20 Am. Ry. Rep. 311, Where a horse is killed by taking fright 134 ANIMALS, LNJUKltb TO, 77. and breaking through u railing on the side of an approach to a bridge, wiiich a railroad company is bound to maintain, the company is liable where it appears that the railing was insufficient, and that the accident would not have happened had it been otherwise. Titcomb v. Fitchburg R. Co., 1 2 Allen {Mass.) 254.— Quoted in Sowles v. Moore, 65 Vt. 322. Under the provision of the General Rail- road Act (§ 44, ch. 140, New York Laws of 1850, as amended by § 8, ch. 282, Laws of 1854), requiring railroad corporations to erect and maintain fences on the sides of their roads, and making a corporation which neglects to comply with said requirement "liable for damages which shall be done by the agents or engines of any such corpora- tion to any cattle, horses ♦ * * thereon," to create a liability there must be some action on the part of the corporation, by its mechanical or other agents, producing the injury ; no liability is imposed for injuries to cattle or horses caused by themselves when straying upon a railroad bridge. Knight V. New York. L. E. <&-. W. R. Co., 23 Am. &^ Eng.R. Cas. 188, 99 N. Y. 25, i N. E. Rep. 108; reversing 30 Hun. 415. — Distinguished in Dolan v. Newburgh, D. & C. R. Co., 42 Am. & Eng. R. Cas. 611, 120 N. Y. 571, 24 N. E. Rep. 824. 31 N. Y. S. R. 852 ; Graham v. Delaware & H. C. Co.. 46 Hun (N. Y.) 386, 12 N. Y. S. R. 390. Reviewed in Leggett v. Rome, W. & O. R. Co., 41 Hun (N. Y.) 80, 2 N. Y. S. R. 312. (2) When company not liable.— In the ab- sence of any statute requiring railroad com- panies to fence or secure their bridges, a company cannot be made liable on mere proof that an animal was found fastened on a bridge with its legs broken. Denver &• R. G. R. Co. V. Chandler, 8 Colo. 371, 8 Pac. Rep. 571. Under the Illinois statute relating to the liability of railroads for stock killed, a com- pany is not liable where a horse becomes frightened by an approaching train and runs upon a bridge and is so injured as to die, the train not having come in contact with the animal. Chicago &• N. W. R. Co. v. Taylor, 8 ///. App. 108. A railroad company is not liable for an injury to a horse that occurs in a county where the commissioners have made no order as to what stock shall run at large, where it appears that the animal strayed •pon the track, and becoming frightened by an approaching train, and despite the slackening of the speed and the sounding of a whistle, fails to leave the track, as it safely might have done, but runs ahead of the train upon a bridge and breaks its leg. Pittsburgh, C. 6- St. L. R. Co. v. Stuart, 71 Ind. 500.— Quoting North Pa. R. Co. v. Rehman, 49 Pa. St. 101 ; Tonawanda R. Co. V. Munger, 5 Den. (N. Y.) 255— Distin- guished IN Alabama G. S. R. Co. v. Powers, 19 Am. & Eng. R. Cas. 502, 73 Ala. 244; Bostwick V. Minneapolis & P. R. Co., 2 N. Dak. 440. Under the provisions of §§ 1 and 2 of ch. 72 of Comp. St. of Nebraska, where a party's horse gets on the railroad track for the want of a fence such as the law requires the company to erect and maintain to inclose its track, and while on or near the track is frightened by a passing train, and in its flight is injured by falling through a bridge on the line of the railroad, and no negli- gence or wilful misconduct is charged to the agents of the company in charge of the train at the time, and where no injury is done to the horse by any actual collision or contact with the engine or cars of the train, the railroad company will not be liable to the owner of the horse for such injury. Burlington &» M. R. R. Co. v. Shoemaker, 22 Am. Sf Eng. R. Cas. 565, 18 Neb. 369. A railroad company is not liable for kill- ing a colt on a bridge crossing a river where it appears that the colt was pastured on lands on the opposite side of the river, but had broke away, went a half-mile to a ford and crossed the river to an open mill-yard, from which it went upon the track near the bridge. Hyatt v. New York, L. E. (^ W. R. Co., 46 A^. Y. S. R. 7, 64 Hun 542. 19 N. Y. Supp. 461. The owner of a horse cannot recover from a railroad company for its value when killed upon a bridge, where it does not appear that it was actually struck by the train, but where the evidence tended to show that the horse ran on the bridge and fell off. Gnlf, C.&'S. F. R. Co. v. Ritter,\ Tex. App. (Civ. Cas.) 212, 16 S. IV. Rep. 909. One who, as a mere licensee, uses for the passage of his stock an opening under a railway bridge constructed by the company for its own use and benefit, does so at his own risk, and cannot recover for the death of a horse caused by iiis suddenly throwing up his head and striking the end of a bolt left projecting down from a timber of the I ANIMALS, INJURIES TO, 78. 135 bridge. Truax v. Chicago, Si. P., M. 6- O. R. Co., 83 Wis. 547, 53 A^. W. Rep. 842. 78. Injuries on trestles.— (i) When company liable, — A company is liable for the negligence of its employes in constructing a part of its ya'^J, designed for receiving cotton, so that a mule is injured by catch- ing its foot between a rail and a plank, while being driven with due care. Central R. Co. V. Gleason,6^ Ga. 200.— DISTINGUISH- ING Thompson v. Central R. & B. Co., 54 Ga. 509 ; Lindsey v. Central R. & B. Co., 46 Ga. 447. Where a colt was unlawfully running at large, and strayed upon a railroad track, and became frightened at an approaching train, and ran upon the track and fell upon a tres- tle, so that it could not get off the track, and the employes of the company, aft r be- ing requested to wait till other help could be secured, as that present was insufficient to remove the colt with safety, kicked the colt and gave it a lunge, when it fell oS. the side of the trestle, falling about eight feet, and in a few days thereafter died from in- juries thus sustained, there was evidence tending to show that the injury to the colt was wilfully and negligently inflicted, and that the plaintiff was entitled to recover, notwithstanding his own negligence in per- mitting the colt to run at large. Ft. Wayne, C. &* L. R. Co. V. O'Keefe, 4 Ind. App. 249, 30 A. E. Rep. 916. A railroi>d company is liable for the value of a horse which is killed by taking fright from a train and running upon a trestle and jumping therefrom, if it appears that those in charge of the train could have prevented the killing by the exercise of due care. Newman v. Vicksbttrg » Eng. R. Cas. 174, 49 Kan. 794, 31 Pac. /?<•/>. 693.— Reviewing Atchison, T. c'i S. F. R. Co. v. Jones, 20 Kan. 527. Plaintiff's mart -vas pastured on the de- fendant's right of way, at a place where it ought to have been, but was not, inclosed. She was frightened by the sounding of a whistle upon an engine drawing a train of cars, and ran along by the side of the track on the right of way into a barbed wire fence running at right angles with the railroad, and was injured. Held, that the defendant was liable under the statute. Missouri Pac. R. Co. V. Gill. 49 Kan. 441 , 30 Pac. /V/>. 414.— Quoting Atchison, T. & S. F. R. Co. v. Jones. 20 Kan. 527. ANIMALS, INJURIES TO, 81. 137 When an animal gets on the track at a point where the company was bound to fence, and being frightened by the approach of a train, is injured by attempting to jump a barbed wire fence, an action is maintain- able, although not under the statute. Boggs V. Missouri Pac. R. Co., i8 Mo. App. 274. Prior to the New York act of 1891, ch. 367, it could not be said as a matter of law tiiat it was negligence for a railroad com- pany to erect and maintain a barbed wire fence, whereby a horse was injured, in the absence of anything to show the nature of the land fenced. Guilfoos v. New York C. 6- H. A\ iV. Co., 23 iV. V. Supp. 925. (3) When company not liable. — A railway company which inclosed part of its track with a barbed wire fence and permitted it to fall into disrepair is not liable for injury to a colt which, uninvited, strayed upon the track through a gap in the fence, became fritjhtened by a train whistle and ran into the fence, and was thereby wounded and killed, there being no duty upon the part of the railway to build the fence or to keep it in a state of repair. .SV. Louis, I. M. &^ S. R. Co. V. Ferguson, 57 Ark. 16, 20 5. IV. Rep. 545.— Quoting St. Louis, I. M. & S. R. Co. V. Fairbairn, 48 Ark. 491 ; Kansas City, S. & M. R. Co. v. Kirksey. \'& Ark. 366; Knight V. Abert, 6 Pa. St. 472. A railroad track was inclosed by a wire fence, but at the ends of the fence it did not connect with the track, so as to prevent stock from passing to the inclosed portion. A colt strayed upon the inclosed right of way, and becoming frightened at a train, ran against the wires and was killed. Held, that the company was not liable. The colt was trespassing, and the company was un- der no obligation to construct its fence of material such as would make it harmless. St. Louis, I. M. P. R. Co. v. Scofl. 4 Tex. App. (Civ. Cas.) 476, 17 S. IV. Rep. 1116. 84. Prcsnniption of uegligence.f- A dog is not property, except in a qualified sense, either at common law or under the statutes of Georgia. The owner may main- tain an action of trespass vi et armis for the wanton and malicious killing of his dog, but he cannot maintain case for its uninten- tional, though negligent, destruction; and where a dog was killed by a railroad train, a presumption did not arise against the com- pany, as in cases of injury to persons or prop- • See tost, 2»2. \ Seefos/, 12H, 103, 207. erty. Jemison v. Southwestern R, Co.,7^Ga. 444, sS Am. Rep. 476.— AvpRovitiG Wilson V. Wilmington & M. R. Co., 10 Rich. (So. Car.) 52. Where a dog is killed on the track, the rule as applied to cattle, that proof of the killing is prima facie proof of negligence, does not apply. Wilson v. Wilmington &* M. R. Co., \oRich. (So. Car.) 52.— D1.STINGUISH- ING Danner v. South Carolina R. Co., 4 Rich. (So. Car.) 329. — Applied in Roof v. Charlotte, C. & A. R. Co., 4 So. Car. 61. Approved in Jemison v. Southwestern R. Co., 75 Ga. 444, 58 Am. Rep. 476. m. LIABILITY AS DEPENDENT UPON COM- PANY'S DUTY TO FENCE.* I Duty to Fence Track.\ rt. In General. 85. At common law.— At common law railroad companies are not required to fence, and in the absence of a statute requiring them to fence, they are only, as a rule, lia- ble for injuries to cattle which result from wilful negligence or misconduct. Vande- grift V. Delaware R. Co., 2 Houst. (Del.) 287. In the absence of special legislation on the subject requiring a railroad to fence its track, there is no general law which requires them to do so, neither is there ;my general law against the owners of stock allowing animals to run at large or to depasture public roads ; consequently the bare fact that a railway is uninclosed, or unprotected by cattle-stops, where it crosses a public road, does not in general render the railroad company liable to pay for such stock stray- ing upon the track and killed by a train ; nor, upon the other hand, can contributory negligence be attributed to the plaintiff for allowing his stock to run at large. Laynev. Ohio River R. Co., "^l W. Va. 438, 14 S. E. Rep. 123. The rights, duties, and obligations of the New Orleans, O. & G. W. R. Co. are created by express law, and until the legislature re- * See also Fe.«)ces. t Duty of companies to fence track generally, ree note, 35 Am. & Eng. R. Cas. 133 ; and lia- bility for stnck that goes upon track where it might have been fenced, see 35 Am. & Eng. R. Cas. 165, ahstr.; i6Id. l66, abstr.; 42 Id. 578, abstr.; 7 /(/. 577. Duty of compnny to fence where it is legal to permit cattle to roam, see note, 22 Am. & Eng, R. Cas. 616. .:.^«..i^it^ ANIMALS, INJURIES TO, 8«, 87. 139 quires them to inclosetlicir road, or delegates the power to the parochial authorities, and the latter exercise the same, tiie com- pany will be under no obligation to inclose their road, or any part thereof, with fences or barriers. And if cattle stray upon the track and are killed or maimed by accident, it will be damnum absque injuria, and the owner will have the loss to bear. Knight V. New Orleans, O. &> G. IV. R. Co., i^ La. Ann. 105. 86. Rule where statute does not impose a positive duty to fence.*— Under the system in Alabama all unin- closed lands are common pasture. The owners of stock have the right to allow them to go at large upon the commons. It is the duty of the railroad, if necessary to secure it in the safe operation of its road, and not of the owners of stock, to fence against the incursion of stock upon the railroad track. Central R. &* B. Co. v. Ingram, 98 Ala. 395. Under Wagn. Missouri St. 520, § 5, rail- way companies are not required to fence anywhere, the section simply dispensing with proof of negligence, where animals are killed, and the track is not fenced, but might have been. Edwards v. Hannibal &* Si. J. R. Co., 66 Mo. 567.— Quoting Tiarks v. St. Louis & I. M. R. Co., 58 Mo. 45.— Followed in Wymore v. Hannibal & St. J. R. Co., 79 Mo. 247. In Oregon the duty to fence is not im- posed upon railroad companies as a duty, yet proof that the track is unfenced where stock is killed is conclusive of negligence, and the only defence that the company can make is that the owner contributed to the injury, or that he has wilfully procured the killing. Hindman v. Oregon R. &- N. Co., 38 Am. &* Eng. R. Cas. 310, 17 Or eg. 614, 22 Pac. Rep. 116. 87. Statutes requiring fences.t— A statute which prescribes, as a precaution- ary measure, what shall be deemed a suf- ficient fence to protect a railroad track from the entrance of live stock, and declares an absolute liability for the killing of stock for the failure to fence, or for killing stock on an unfenced track, except for contributory negligence or misconduct, imposes by im- *See/w/, 130, 212. tSee anil, 1-28. Various state statutes with their construction re((arding liability of railroads for injuring or killing live stock by failure to fence, see note, 8 L. R. A. 135. plication the duty to fence as much as if such duty was expressly declared. Sullivan v. Oregon R. Sf N. Co., 42 Am. &- Eng. R. Cas. 625, 19 Oreg. 319, 24 Pac. Rep. 408. Section 4044 of the Oregon statute makes a railroad company liable for the value of stock killed upon or near any unfenced track by a moving train, and § 4045 pre- scribes what shall be deemed a sufficient fence to guard the railway track from the entrance thereon of live stock, and § 4048 provides that in every action for the value of any stock mentioned in § 4044, so killed, that proof of such killing shall be deemed and held conclusive evidence of negligence, except where the owner is guilty of negligence or misconduct. Held, that the statute, in prescribing the fence, and declaring that stock killed " on or near any unfenced track " shall be con- clusive evidence of negligence, by implica- tion, makes it the duty of a railway to fence its track. A statute oftens speaks as plainly by inference and by means of the purpose which underlies the enactment as in any other manner. Sullivan v. Oregon R. &• N. Co., 42 Am. &• Eng. R. Cas. 62;, 19 Oreg. 319, 24 Pac. Rep. 408. — Distinguishing Bielenberg v. Montana Union R. Co., 8 Mont. 276; Ohio & M. R. Co. v. Lackey, 78 111. ss; Zeiglerz/. South & N. Ala. Co.. 58 Ala. 594 ; Jensen v. Union Pac. R. Cc, 6 Utah 253 ; Hindman v. Oregon, R. li N. Co., 17 Oreg. 614. Quoting Bennett v. Wabash, St. L. & P. R. Co., 61 Iowa 355 ; Welsh V. Chicago, B. & Q. R, Co., 53 Iowa 632. Such a statute is intended as a precau- tionary measure to protect the track from stock where allowed to roam at large, so as to insure safety in the running of the trains, as well as to prevent the destruction of live stock, and is a police regulation which finds its authority in the same power as regulates the storage of gunpowder or other danger- ous instrumentalities, and is not obnoxious to the constitutional objection of depriv- ing the company of its property without due process of law, or of denying it the equal protection of the laws. Sullivan v. Oregon R. &> A'. Co., 42 Am. 6- Eng. R. Cas. 625, ig Oreg. 319, 24 Pac. Rep. 408. Under the statute, in view of the con- struction given in Hindman 7'. Railroad Co., 17 Oreg. 619, when it is alleged and proven that stock is killed or injured at a place where the company has failed to fence, 140 ANIMALS, INJURIliS TO, 88-90. but the duly existed, — an unfciiced track, — a case of n.gligence is made uut unless the defendant can show contributory negligence or misconduct. Sullivan v. Oregon K. &* N, Co., 42 Am. dr'Eng, K. Las. 625, 19 Oreg. 319, 24 Pac. Rep. 408. Generally a railroad company, under the stock law of Kansas, 1874, in order to be ab- solved from liability for stock killed by it in the operation of its railroad must have its rail- road " inclosed with a good and lawful fence, to prevent such animals from being on such road." Atchison, T. &> S. F. K. Co. v. Shaft, 19 Am. &^ Eng. R. Cas. 529, 33 Kan. 521, 6 Pac. Rep. 908. 88. Contract between company and laaUowner.* — Where a railroad company has entered into a contract with an adjoin- ing owner that the company will fence its right of way, and has failed, and is sued for stock killed on the track and for injuries by cattle trespassing upon fields, it cannot set up the defence, or escape liability, on the ground that the landowner might have fenced after the company failed to do so. Louisville, N. A, &* C. R. Co. v. Sumner, 24 A/n. &> Eng. R. Cas. 641, 106 Ind. 55, 5 N. E. Rep. 404. If proper fences are built and maintained, it will make no difference, in an action by an adjoining landowner for stock killed, whether such fences are built and main- tained by the railroad company or such ad- joining landowner, or whether they are upon the right of way or upon the lands of such owner, with his consent. Bond v. Evans- ville&- T. H. R. Co., 23 Am. 6- Eng. R. Cas. 200, 100 Ind, 301. Where the law imposes upon railroads the duty of fencing, and a company is sued for killing live stock, it cannot exempt itself from liability by showing an agreement with the owner whereby the company agreed to put In certain caitle-guards as its only obli- gation in regard to fencing. Cincinnati, H. &* /. R. Co. V. Hildreth, 77 Ind. 504. Railroads in Indiana are required to fence, but it is Immaterial whether the company or an adjoining landowner fences. If a fence is built and kept In repair, the roads will be held liable only for common-law negligence. New Albany &* S. R. Co. v. Pace, 13 Ind. 411. In an action against a railroad company by the owner of stock killed by a train used •See^w/, 138, 130, 149. 150, t75. by II in the construction of its road, at a point on the plaintiff's land where the road was not fenced, the defendant offered in evidence, in connection with proof of the date of the completion of the road, a deed containing several covenants of warranty, conveying to the defendant its roadbed across such land, executed by the plalntlfi to the defendant prior to the alleged injury, and providing that the defendant should " make a good fence along " its " roadway, on said premises, within a reasonable time after the completion of "said railroad. Held, that the " completion " meant by the terms of such deed was the completion, not of the whole line of road, but simply of the same across plaintlfl's land. Held, a.\^o, that such fence should have been built within a reason- able time after the completion of the road- way across such land, and by the time the company commenced running Its trains. Held, also, that the evidence was proper. Baltimore, P. &• C. R. Co. v. McClellan, 59 Ind, 440. A railroad company which has entered into a contract, agreeing to fence Its track where It passes through certain lands. Is under the same liability as to loss or injuries to live stock as if a statute required it to fence. Gulf, C.6- S. F. R. Co. v. Washing- ton, 49 Fed. Rep. 347, 4 U. S. App. 121, i C. C. A. 286. 89. or company and a third per- son.* — Where a railroad company has killed stock at a point where it was Its duty to fence, It cannot excuse itself on the ground that the owner had not requested It to fence, or that a third party had waived the re- quirements of a fence. Parks v. Hannibal &• St./. R. Co., 20 Mo. App. 440.— Distin- guishing Harrington v. Chicago, R. I. & P. R. Co., 71 Mo. 384. The adjacent landowners, in such a case, are not the agents for each other for the purpose of waiver of liability, and no one of them could waive the right of the other to held the railroad company to Its statutory obligation, but only for himself. Parks v. Hannibal &* St. J. R. Co., 20 Mo. App. 440. 90. Against what animals must fence.t — (1) Generally. — In Indiana the * See post, 94, 139, 150, 154, 166, 173. 181,237. \Swpost, 109-113. A team hitched up but wandering about is not " running at large " within the meaning of Iowa C. Rep. 465.— DisriNOUiSHiNG Lord ?'. Wormwood, 29 Me. 2S2 ; Keliher V. Connecticut River R. C'l., 107 Mass. 411. Following Eames v. Salem & L. R. Co., 98 Mass. 560. A railroad company owes no duty to fence towards subcontractors engaged in the construction of its road, and is there- fore not liable for a horse of such subcontractor killed by getting on the track, through the act of the contractor in leaving a fence down. Ctari v. Chicago &* W. M. R. Co., 62 Mich. 358, 28 A'. W. Rep, 914. 03. Adjoluiug landowuers.* — Stat- utes requiring railroads to maintain fences on the sides of its track are designed for the protection of adjoining owners, and their requirements may be waived by such owners, so as to exonerate the company from injuries to cattle happening by reason of a fence not being constructed according to such requirements. Enright v. San Francisco 6- S. J. R. Co., 33 Cal. 230. Under Missouri statute requiring rail- roads to fence, only adjoining owners or persons holding under such adjoining owners can recover for injuries to cattle which go upon the track by reason of a failure to fence. Summers v. Hannibal &* St. J. R. Co., 29 Mo. App. 41. • Stt post, 130, 140, 306. A railway company is not bound to main- tain and keep up fences along their track, except as between them and the owners of the adjoining property, and when cattle were allowed to pasture upon a neighbor's land, and from thence strayed on the rail- way track, and were killed, the company was not responsible. McLennan v. Grand Trunk R. Co.. 8 U. C. C. /'. 411. It appeared that the plaintiff owned land on cither side of the defendants' railway, but the Toronto, G. & B. R. Co., which lay to the north of defendants' railway, and had also been taken from his farm, ran between his land and defendants' railway. Held, upon the facts stated below, that there was no evidence that the cattle had reached the railway from the south side, and the fact that the Toronto, G. & B. R. Co. had neg- lected to fence, did not give the plaintiff, in respect of the occupation of their land by his cattle, the status of that company for the time, as adjoining proprietors, against whom only the defendants were bound to fence, so as to make the defendants liable. Douglass v. Grand Trunk R. Co., $ Ont. App. 585.— Applying McAIpine v. Grand Trunk R. Co., 38 U. C. Q. B. 446. 04. Persons usiui;, though not own- ing, adjoining lands.— (1) Generally.— Railroad companies are liable for killing the stock of occupants of adjoining lands by reason of a failure to fence, the same as of owners of such lands. Veerhusen v. Chicago ^N. IV.R. Co., 53 IVis.eSg, 11 A^. W. Rep. 433- Where there is a statute requiring rail- road companies to fence, one who has a right to pasture his sheep on the land of another can recover for sheep killed by rea- son of the failure of a company to fence. AfcCoy V. Southern Pac. R. Co., {Cal.) 26 Pac. Rep. 629. The Canada Company owned land in the town of Goderich, through which defend- ants' railway ran, and on which, being an open common, the cattle of persons living in the town had for thirty or forty years been accustomed to pasture, though with- out any express permission. The plaintifT'fi cow, having escaped from this land on to the railway, owing to the want of fences, and been killed by a train, — held, that he could not recover, for as against him the de- fendants were not bound to fence. Mcin- tosh v. Grand Trunk R. Co., 30 U. C. <2. B. 601. — Following McLennan v. Grand ANIMALS, INJURIES TO, 95. 143 TrunkR. C0..8 U. C. C. P. 411. Quoting Auger V. Ontario, S. & H. R. Co., 16 U. C. Q. B. 92. (2) Lessees* — The owner of land adjoin- ing a railroad, under an agreement with tlie company, erected a fence along the line be- tween his land and the right of way, and took upon himself to maintain it. A ten- ant of such owner, while in the occupancy of the premises, and with full knowledge of the undertaking of his landlord, and with knowledge of the condition of the fence, placed his live stock in the inclosure which was separated from the right of way by this fence. The stock got upon the track through the fence and were killed. In an action by the tenant to recover for the stock V.\\\tA,— held, that he could not allege any want of sufficiency in the fence as a ground of recovery. St. Louis, V. &• T, H. R. Co. V. Washburn, 97 ///. 253. A tenant, in the absence of notice, will not be bound by an agreement of his land- lord exempting a railroad from liability for failing to fence its track passing through his field, and although he may have unwit- tingly accepted the benefit of the considera- tion, he may recover double damages for stock injured through the failure to fence. Thomas . Hannibal &• St. /. R. Co., 23 Ain.&*Eng. R. Cas. 183. 82 Mo. 538. The statutory duty of a company to fence does not extend to fencing between the track and a strip of land that it may own, and a tenant occupying such strip cannot re- cover for stock killed by reason of the com- pany's failure to fence. Potter v. New York C. &• H. R. R. Co., 38 N. Y. S. R. 798, 60 Hun 313, 15 A^. Y. Supp. 12. (3) Licensees. — Where the lessees of land along a railroad track have made an open- ing in the railroad fence, which has been constructed by the railroad company as re- quired by the statute, one who has a license to pasture sheep upon such land cannot re- cover the value of the sheep from the company on whose track they have been killed after passing through the opening. McCoy v. Southern Pac. R. Co., 56 Am. 6- Eng. R. Cas. 132, 94 Cal. $68; 29 Pac. Rep. 1 1 10. If the opening in the said fence was made with the consent of the company, under an understanding that the said com- pany would substitute a gate for the panel ^See/i'j/, 139, 310. removed, it would be the duty of f.hft com- pany to put up the gate witliin a reasonable time, and failure to do so would make it lia- ble for the loss of the stock ; but where such agreement was made with an agent of the company, it was the duty of the plain- tiff to show that the person assuming the act for the company had authority to do so. McCoy v. Southern Pac. R. Co., 56 Am. &* Eng. R. Cas. 132, 94 Cal. 568; 29 Pac. Rep. 1 1 10. One having a license to graze his cattle upon land adjoining a railway track may maintain an action for injury to his cattle, owing to the neglect of the company to con- struct the fence required by statute. Daw- son V. Midland R. Co., 42 L. J. Exch. 49, L. R. 8 Exch. 8, 21 W. R. $6. c. Where Fences Must be Built.* 95. Generally. — At such places as it is practicable to do so a railroad company must fence its track to avoid injury to live stock. Louisville, N. A. &* C. R. Co. v. Zink, i$Ind. 219. The burden of proof is upon a rail- road company to show that a space along its track left unfenced, which was not within the station grounds, but sometimes used by passengers in going between the station and a hotel nearby, was left open and unfenced for the convenience of the public, and that, therefore, their statutory duty to fence was complied with. Dixon v. New York C. 6- H. R. R. Co., 51 Hun 644, 4 N. Y. Supp. 296, 22 N. Y. S. R. 61. Cox v. Minneapolis, S. St. M.&^A.R. Co., 38 Am. &* Eng. R. Cas. 287, 41 Minn. loi, 42 A^. ff. Rep. 924. Where it appears that the fencing of a railroad track would not obstruct any street or public highway, a company cannot avoid liability for live stock killed by showing that a fence at the point would cause much Inconvenience to the company's servants in loading and unloading cars, and in the opera- tion of trains. Inconvenience to a railroad company is not a sufficient excuse for failing to fence. Houston &* T. C. R. Co. v. Simp- son, 2 Tex. App. {Civ. Cas.) 591, Where a cow got upon a railroad track and was killed by a passing locomotive, at a • Where railroad company is obliged to fence, see notes, 11 Am. & Eng. R. Cas. 496, 19 Id. 649. Points where companies are not bound to fence, see note, 19 Am. & Enc. R. Cas. 539. ■^^^^a 114 ANIMALS, INJURIES TO, 06-UU. jiuiiil on said railroad wiiere there was a saw-iiiili located and in operation 50 feet from said track, tlie intervening,' ^ro""'' ^^' twecn said track and said null being used by tlie owners of the mill for piling their lumber, and for loading lumber upon the cars of the railroad company for transpor- tation, and by the public for passing to and from said mill with logs and lumber, and for piling wood to be sold to the railroad company, — //<;/(/, that the railroad company was not bound to fence in the track at such point, and, in the absenccof negligence, was not liable for the killingof the cow. /'///s- hiir^li. C. &* S/. L. R. Co. V. liowyer.t^l liui. 4'/>. )M(. WIicii fence would iiitort'crc with traiiHaetioii of coiiiimny^H biiNi- IH'SH. — A railroad company is not required by the statute to fence its track at places where fences would interfere with its own rights in operating its road or transacting its business, nor where the rights of tlie public in travelling or doing business with tlie company arc interfered with, nor where such fencing would imperil the lives of its employes. No recovery can be had under the statute for stock killed by its locomo- tives or cars where such places on the line of its road are left unfenced. Evansville &- T. //. R. Co. V. IVtllis, 19 Am. &• Eng. R.Cas. 565,93 /ltd. 507.— -Following Jef- fersonville, M. & I. R. Co. v. Beatty, 36 Ind. 15.— Followed in Lake Erie& W. R. Co. V. Kneadlc, 94 Ind. 454; Pearson v. Chi- cago, B. & K. C. R. Co., 33 Mo. App. 543. Quoted in Banister v. Pennsylvania Co., 98 Ind. 220; Indianapolis, D. & W. R. Co. V. Cl.iy, 4 Ind. App. 282. 07. or the use of it8 own prop- erty. — A railroad company is not required by the statute to fence its road, where such fencing would result in cutting itself from the use of its own land, or leased property, or buildings, or woodsheds, although the buildings or sheds may not be in present use; and if cattle are killed at such a point by the cars of the company, it is not liable unless there is proof of negligence or want of care or skill on the part of the persons operating the train. Jeffersonville, M. &* I. R. Co. V. Beatty, 36 Ind. 1 5.— Followed in Evansville & T. H. R. Co. v. Willis, 19 Am. & Eng. R. Cas. 565, 93 Ind. 507. 08. Lands used for public pur- poses.* — The implied exemption that * Company not bound to fence where there is places necessary for use for public purposes need not be fenced is not to he extended to cases where the reason for it is wanting; and where the particular land in controversy is not actually used for such public pur- poses, it is not enough that the plims of the C(jmpany contemplate such use at some in- definite time in the future. Cox v. Minne- apolis, S. St. A/. &* A. R. Co., 38 ///;/. 6- Juijf. R. Cas. 287,41 Minn. 101,42 A'. 11^ Rep. 924. 00. Ill cities, towns, iiiid villnt;es.* — (I) When must fence. — Railroads arc not required by statute to fence their roads within the corporate limits of a town, and in iictions against them to recover for in- juries to stock, occurring within such limits, it is error to refuse so to instruct the jury. Chicago &• A. R. Co. v. Engle t,illl. 381. The Iowa act of 1862, ch. 169, § 6, relating to the duty of railroads to fence, does not apply to depot grounds, and especially to cities and towns where tracks are often laid along streets. Davis v. Burlington &• M. R. R. Co. , 26 Iowa 549. Where, within the limitsof atown or city, lands dedicated to public use, and crossing or abutting upon the right of way of a rail- road company, are occupied and used for farming purposes, such occupancy does not make it lawful for the railroad company to fence across them, and its failure to do so will not subject it to liability under § 5 of the Missouri damage act. Elliott v. Han- nibal &' St. J. R. Co., 66 Mo. 683.— Fol- lowed IN Vanderworker v. Missouri Pac. R. Co., 48 Mo. App. 654. A railroad company is not required, within the limits of a city, to place guards around a cut, away from a public thorough- fare, to prevent animals grazing there in violation of law from falling down the bank. Clary v. Burlington tS^ M. R. R. Co., 11 Ant. &• Eng. R. Cas. 493, 14 A'eb. 232.— Distin- ouiSHED IN Rathburn v. Burlington & M. R. R. Co., 19 Am. & Eng. R. Cas. 137, 16 Neb. 441. While the New York act of 1850, ch. 140, § 44, making it the duty of railroad com- panies to fence, does not apply to cities and villages, yet it does apply to outskirts of a city or village where the land is not built upon. Brady v. Rensselaer &* S. R. Co.. I Hun (JV. V.) 378, 3r.&- C. 537. a public user, see note, 13 Am. & Eng. R. Cas. 533. * See post, 117, 203-2 12. I ANIMALS, INJURIES TO, 100. 145 (2) IV/ieH not required to fence.— Vi\\trt the nearest objects to the place wliere a horse went upon the main track of a road within the city limits and was injured were a building one hundred and seventy-five feet north, a crossing one hundred and seventy-five feet south, and a yard track sixty feet east, the ground adjoining the main track being unoccupied, the situations and surroundings are not shown to be such that a fence could not be maintained with- out interfering with the company's business, or with the proper discharge of its duty to the public, or without endangering the safety of the company's eniploy^s, and the company was bound to maintain a fence. Jtffersonville, M. &* I. R. Co. v. Peters, 1 Ind. App. 69. 27 A^ E. Rep. 299. 'There are no exceptions under the In- diana act as to the liability of a railroad company for injury to animals coming upon the track through defect of fences, founded on the idea that at certain places a company is not bound to fence their track. But the supreme court has interpolated some neces- sary exceptions, such as the crossings of highways, streets, and alleys, in towns and cities, and tit mills, where the public have a right and a necessity to go undisturbed; but the court has not made, and ought not to make, under the statute, an exception of large blocks of ground merely because they are situated within the limits of a city. There is no reason why such lands not in a city must be fenced, that does not apply with equal, if not greater, force when they are within the limits of a city, Toledo, W, &* W. R. Co. V. Howell, 38 Ind. 447, 10 Am. h'y. Rep. 272. — DiSTiNdUiSHFn in Louis- ville, N. A. & C. R. Co. V. Porter, 20 Am. & Mng. R. Cas. 446, 97 Ind. 267. It is necessary for railroad companies, for the purpose of avoiding the statutory liabil- ity for killing stock on the line of road within the limits of corporate towns, and out- side of the first street or alley of said town, to fence the same against stock running at large. Such portion of the corporate terri- tory through which a railway runs, which lies outside of or beyond streets or other public highways, may be fenced by the rail- way company along its right of way to the same extent and in the same manner as if the municipal corporation did not exist, un- less possibly there is an ordinance of the town which would control such right. Coyle V. Chicago. M. &^ St. P. R. Co., 13 Am. &* I D. R. n.— 10. En£^. R. Cas. 526, 62 Iowa 518, 17 A'. W. Rep. 771. In an action to recover the value of a cow killed by a railroad train in a small hamlet, it will not be presumed, in the absence of evidence, that any reason of public or pri- vate convenience prevented the application of the general statute (Sess. Laws 1872, 72), requiring every railroad company to fence their track and put cattle-guards at highway crossings, and in default thereof making them liable for all damage done to cattle, etc., thereon ; any exceptional case must be proved by the party claiming a benefit there- from. In an action under this statute, neg- ligence of the plaintiff in care of his prop- erty, contributing to the injury, constitutes no defence. Flint 6- P. M. R. Co. v. Lull, 28 Mic/i. 510, 12 Am. Ry. Rep. 296.— FOLLOWED IN Grand Rapids & I. R. Co. v. Cameron, 45 Mich. 451. Quoted in Crcssey v. Northern R. Co., 15 Am. & Eng. R. Cas. 540, 59 N. H. 564, 47 Am. Rep. 227. The duty imposed upon railroad com- panies to fence their roads to prevent injury to live stock, by the Ohio act of March 25, 1859 (S. & C. 331), and the amendments thereto, requires the construction and main- tenance of such fences within the limits of cities and villages where they do not ob- struct streets, highways, or other public grounds. Cleveland &*P. R. Co. v. McCon- nell, 26 Ohio St. 57, 1 1 Am. Ry. Rep 266. 100. IiicloHCfl or cultivated fields. — Wagn. Missouri St. 310, 311, which re- quire railroads to erect and maintain fences on the sides of the road where the same pass through, along, or adjoinii.g inclosed or cultivated fields or uninclosed prairie- lands, does not include lands from which timber has been cut, but which is not culti- vated; and where stock is killed at such places the owner is not entitled to recover double damages under the statute. Tiarks V. St. Louis &* I. M. R. Co., 58 Mo. 45.— Re- viewing Walther v. Pacific R. Co., 55 Mo. 271 ; Slattery v. St. Louis, K. C. & N. R. Co., 55 Mo. 362.— Distinguished in Swear- ingen v. Missouri, K. & T. R. Co., 64 Mo. 73. Followed in Mason v. St. Louis & I. M. R. Co., 58 Mo. 51 ; Shrum v. St. Louis & I. M. R, Co., 58 Mo. 51 ; Dee v. St. Louis & I. M. R. Co., 58 Mo. 52 ; Switzer v. St. Louis & I. M. R. Co., 58 Mo. 52; Riflfey v. St. Louis & I. M. R. Co.. 58 Mo. 53; Grounds v. St. Louis & I. M. R. Co., 58 Mo. 53; Buxton V. St. Louis & I. M. R. Co., 58 I J • !"'■'■ 146 ANIMALS, INJURIES TO, 1O1-103. m Mo. 55 ; Stephens v. St. Louis & I. M. R. Co., 58 Mu. 54; Wymore v. Hunnibal & St. J. K. Co., 79 Mo. 247. QuoTKD IN Edwards?'. Hannibal & St. J. R. Co., 66 Mo. 567; Rus- sell V. Hannibal & St. J. R. Co., 83 Mo. 507; Clarkson v. Wabash. St. L. & P. R. Co., 84 Mo. 583. Wagn. Mo. St. p. 310, §43, proviiling for the recovery of double damages for stock killed by reason 01 a railroad company fail- ing to fence " where the road passes thr(nigli, along or adjoining enclosed or cultivated fields, or unenclosed prairie lands," requires a fence on both sides of the track where it runs between timbered lands on one side and cultivated lands on the other. IValt/ifr V. Pacific A\ Co., 55 Afo. 271. — Dis- tinguished IN Robertson v. Atlantic & P. R. Co., 64 Mo. 413. Reviewed in Tiarks V. St. Louis & I. M. R. Co., 58 Mo. 45. Railroad companies that were in existence on Feb. 24, 1853, are subject to the provi- sions of the Missouri act of that date, § 51 (Rev. Code, 1855, § 52), relating to injuries to live slock where railroads pass through inclosed lands, and resulting from a failure of the companies to fence. Trt'ce v. Hanni- bal Sf St. J. R. Co.. 35 Mo. 188.— Follow- ing Gorman v. Pacific R. Co., 26 Mo. 441. 101. Uninclosed pralrie-lauds.*— Under the Missouri St. 310, § 43, a com- pany will not be liable for killing stock where its track passes through uninclosed lands, unless the lands are prairie. Carj/ v. St. Louts, K. C. » Eng. R. Cas. 491, 84 Ind. 194. — Ap- proved IN Pittsburgh & L. E. R.Co. v. Cun- ningham, 13 Am. & Eng. R. Cas. 529, 39 Ohio St. 327. Distinguished in Pennsyl- vania Co. V. Spaulding, 35 Am. & Eng. R. Cas. 184, 112 Ind. 47. 105. Where no necessity for fence exists.— Under Wisconsin Rev. St. §810, providing that fences shall not be required where the proximity of ponds, hills, em- bankments, or other sufflcient protection renders a fence unnecessary to protect cattle from straying upon the track, proof that cattle went upon the track over an embank- ment is conclusive that such embankment was not sufficient protection under the statute. Veerhusen v. Chicago &* N. W. R. Co., 53 Wis. 689, II A'. W. Rep. 433. 100. Where two railroads run imrallel.— The provisions of §§ 3505, 3507, Connecticut Gen. St., that railroad com- panies shall fence their tracks except at such points as the railroad commissioners shall ♦Sce/w/, 1 70- 184. adjudge unnecessary, and that in the event of a failure to do so, any person sutlering damage by reason thereof shall have a cause of action, do not require a railroad company to fence its track at a place where it is located 50 feet distant from and parallel to another railroad track upon the side next tu the latter track, although the commissioners had never adjudged that the fencing of that part was unnecessary ; and the company is not liable in damages for injuries to a horse which came upon the track at that point. Gallagher v. New York Sr> N. E. R. Co., 40 Am. 6- Eng. R. Cas. 197, 57 Conn. 44?, 18 All. Rep. 786, 5 /,. R. A. 737. In an action to recover damages for the killing of plaintiff's cattle, it appeared that defendant is one of five railroad companies whose tracks run parallel for some distance, being separated only enough to permit the passage of trains, defendant's tracks being the central ones. No fence had been built along the exterior of the outer track, and there was no natural or artificial barrier. Plaintiff's cattle strayed from a farm adjoin- ing across the intervening tracks belonging to other companies on to defendant's track, where they were killed by an engine running thereon. Held, that plaintiff was entitled to recover ; that the land from which the cattle strayed was adjoining defendant's track within the meaning of the statute, and that defendant was not excused by the fact that the company owning the track, nearest to plaintiff's land had failed to per- form its duty. Ki'h'er v. New York, C. &* St. L. R. Co., 49 Am. &> Eng. R. Cas, 551, 126 N. Y. 365, 27 A'. E. Rip. 553, 37 N. Y. S. R. 485; affirming 35 A^ Y. S. R. 673. 12 A^. Y. Sitpp. 723.— Following Shep- ard V. Buffalo. N. Y. & E. R. Co., 35 N. Y. 641. Upon the trial evidence offered by the defendant that fences on the sides of de- fendant's road would, by reason of the nar- row space between its tracks and those of the adjacent roads, constitute a dangerous obstruction and imperil the lives of pas- sengers and operatives employed about the cars and upon the tracks was excluded. Held, no error ; that defendant could not set up a situation it had wrongfully created as an excuse for disregarding its duty. AVA ver V. New York, C. <5- St. L. R. Co., 49 .////. &» Ettg. R. Cas. 551, 126 A^. K 365, 27 A". E. Rep. 553, 37 A^. Y. S. R. 485 ; affirming 35 A^. Y.S. R.67^. 12 A'. Y. Sttpp. 723.— 148 ANIMALS, INJURIES TO, 107. ■i i Distinguishing Dolan v. Newburgh, D. & C. R. Co.. 120N. Y. 571. 107. At Mtatious, depots or sid- ings.*— (1) Geneniify.— Fencing against animals is not required at stations and sidings where freight or passengers are re- ceived or discliarged. Indiana, B. &* IV. Ji. Co. V. Quick, 109 Ind. 295, 9 A^. E. Rep. 788, 925.— Followed in Indiana, B. & W. R. Co. V. Sawyer, 109 Ind. 342, 10 N. E. Rep. 105. And a railroad company is not liable for killing animals which enter upon its track at such places, and it is error to refuse to so instruct the jury where there is evidence to which such an instruction is applicable. Indiana, B. &* IV. R. Co. v. Sawyer, 109 Ind. 342, 10 N. E. Rep. 105.— Following Indiana, B. & W. R. Co. v. Quick. 109 Ind. 2gs— Indianapolis &* St. L. R. Co. v. Christy, ^T,Ind. 143. — Quoting Indianapolis & C. R. Co. V. Parker, 29 Ind. 471. The company need not fence their road where the engine-house, machine-shop, car- house, and wood-house are located, and are not responsible for killing or injuring live stock at such places by reason of a want of fencing. Indianapolis &* C. R. Co. v. Oestel, 20 Ind. 231.— Reviewed in Davis v. Bur- lington & M. R. R. Co., 26 Iowa 549. In an action for stock killed near the depot in an unincorporated village, — held, that the railroad coinpany is not bound to fence the grounds about a station. Chap- ter 114, § 48, of the Illinois Rev. St. is not to be construed to embrace depots and sta- tions. Terre Haute &* I. R. Co. v. Bowles, \6 III. App. 261.— Reviewing Chicago. B. &Q. R. Co. V. Hans, iii 111. 114. The fact that the place where the cow entered and was killed was used for storing wood and grain brought for shipment, shows that public necessity required that it should remain unfenced as part of the company's depot grounds. Hooper v. Chicago, St. P., M. (S- O. R. Co., 37 Minn. 52, 33 A^. W. Rep. 314.— Following Greeley v. St. Paul, M. & M. R. Co., 33 Minn. 136, 22 N. W. Rep. 179. *See/>w/, 199-202. Obligation of company to fence depot grounds, ■ee 43 Am. & Eng. R. Cas. 578, abstr. Com- pany not liable for failure to fence depot grounds, but extent of grounds is for the jury, see .38 Am. & Eng. R. Cas. 290, abstr.; 35 Id. 132. What are depot grounds where fences are not required, see 49 Am. & Eno. R. Cas. 554, abstr. A railway company is not liable either at common law or under § 68 of the Railway Clauses Act, 1845, to fence from its track a yard adjoining the station into and through which cattle brought by the company to the station w^ie accustomed and were obliged to pass in going to the highway. Roberts v. Great Westerv R. Co., 4 C. B. N. S. 506, 4 Jur. A'. S. 1240. 27 L.J. C. P. 266. (2) Lands not necessary for station grounds. — Action for the value of horses killed on defendant's main track outside but near the entrance of the side-tracks at a station, and at a place where the town plat was bounded by the right of way. The company claimed that it had not the right to fence at that point because (1) it was a part of the depot grounds, it being necessary for the trainmen to use the track at that point for entering the side tracks, and (2) because the streets and alleys of the town extended to the right of way. Held, that this position could not be sustained, because the absence of a fence at that point was not necessary for the convenience of the public in transacting business with the company at the station, and the streets and alleys did not cross the right of way. Peyton v. Chicago, R. I. &* P. R. Co., 70 Iowa 522, 30 A'. IV. Rep. 877.— Distinguishing Cole v. Chicago & N. W. R. Co., 38 Iowa 311. The railroad company owned a strip of land 250 feet wide by 2400 feet long, which it used for station grounds. The plaintiff owned a steer, which he permitted to run at large near the station grounds. This animal passed along the highway and on to the station grounds, and wandered along the same until it passed upon the company's right of way and upon the railroad track, where it was killed. Neither the railroad track, nor the right of way, nor the station grounds was inclosed with a fence. A fence, however, extended along one end and a part of the two sides of the station grounds. The place where the animal was killed, though used as a part of the defendant's station grounds, was not necessary for such use. Held, that, assuming that land necessarily used for station grounds need not be fenced, still, as the place where the animal was killed was not necessary in the |)resent case for the use of the railroad company as a part of its station grounds, the same should have been fenced. Atchison, T. <&* S. F. R. Co. V. Shaft, 19 Atn. &» Eni;. R. Cas. 529, 33 A'an. 521, 6 Pac. Rep. 908. ANIMALS, INJURIES TO, JOH, lOO. 149 108. At crossings of streets and Iiighwrtys.* — A railroad company is not required to fence its road where it would obstruct a public highway, and the want of fencing at such place does not make it liable for stock killed or injured. Loiti'sTt'lle, A'. , /. ^ C. A\ Co. V. //ursf. 98 />u/. 330. There is no liability for killing of animals for want of a suitable fence at a place where a platted street in an incorporated town crosses a .ailway track, even though such street was only used by persons on foot. O/iio, I. Sf IV. R. Co. V. Heady (Ind. App.), zZN. E. Rep. 212. The statute does not apply to injuries done at points where it would be illegal or improper for the railroad company to main- tain fences, such as road and street crossings, etc. It is not every place, however, within the corporate limits of a town or city that is within the exception, but only such as would be improper to fence. Indianapolis (S-C R. Co. V. Parker, 29 Ind. 471.— Quoted IN Indianapolis & St. L. R. Co. v. Christy, 43 Ind. 143. A railroad company has no right to fence its tracks where they cross a public street in a city or town, and the owner of an animal killed at such point cannot recover therefor on the ground of the failure of the company to fence. Long v. Central lonva R. Co., 19 Am. &* Eng. R. Cas. 541, 64 /owa 657, 21 A'^ IV. Rep, 122. And the Iowa statute, 1862, ch. 169, re- quiring railroads to fence their track to prevent injuring live stock, does not include crossings of streets and highways. Soward V. Chicago &* N. W. R. Co., 30 Iowa 551. The statutory obligation of a railroad to fence the road does not extend to crossings of highways, whether de jure or de facto. Held, accordingly, in an action for the killing of stock, predicated on the failure of the railroad company to fence where its road crossed a highway, that it was immaterial whether the highway was maintained by work under a road overseer or not. Roberts V. Quincy, O. P. R. Co., 61 lortra 355, 16 A'. W. Rep. 210. — Quoted in Sullivan v. Oregon R. & N. Co., 19 Oreg. 319. If a railroad company allow an opening to be made in the fence inclosing its road, and left insecure, it cannot be said that the road is securely fenced, and if animals pass through the same and upon the railroad, and are killed, the company is liable without proof of negligence on the part of the com- pany. Cleveland, C, C. &* I. R. Co. v. Swift, 42 Ind. 1 19. The main object of the law requiring rail- roads to fence their road is the protection of the public, and where a railroad adjoins a public road on one side and inclosed fields on the other, and stock come upon the track from the ."adside and are injured, the company is liable under § 43, Missouri Rail- road Act. In such a case the company is bound to fence the road on both sides, and the fact that the stock injured went upon the track from land of another is imma- terial. Humes v. Missouri Pac. R. Co., 9 Mo. App. 588. Under the New York Railroad Act of 185 >, as amended in 1854, railroad companies ere required to erect and maintain a fence on both sides of their track, and are liable for injuries to stock so long as this is not done. Shepard v. Bu ffalo, N. V. &* E. R. Co., 35 • See twte, »0. What is a sufficient fence, see 43 Am. & ENa R. Cas. 579, adstr. 150 ANIMALS. INJURIES TO, 110-113. i N. Y. 641.— Approved in Cleveland, C. C. & I. R. Co. V. Scudder, 13 Am, & Eng, R, Cas. 561. 40 Ohio St. 173. Followed in Spence v. Chicago & N. W. R. Co., 25 Iowa 139; Kelver v. New York.C. & St. L. R. Co., 126 N. Y. 365. Quoted in Klock 7). New York C. & H. R. R. Co.. 42 N. Y. S. R. 200. — Tredwayv. Sioux aty&- St. P. R. Co., 43 /07va, 527, 8 Am. Jiy. Kef. 415, 14 / Eng. R. Cas. 501, 80 Imva 662, 45 N. W. Rep. 568. In an action against a railroad for killing stock on the track by reason of a failure to maintain proper fences, the company set up the defence that it had erected a suitable fence with gates therein, which it was the * See ante, OO. ISee ante, 88. 80; 0, 156, 167. pott, 138, 130. ANIMALS, INJURIES TO, 114-117. 161 duty of the plaintiff to keep closed, but which he allowed to get out of repair and open, whereby the stock got on the track. Held, that the acceptance of the fence with the gates was a waiver of a further duty im- posed on the company, and it was not bound to use extraordinary means to prevent acci- dents. Great Western R. Co. v. Vilaire, 1 1 U. C. C. P. 509. 2. Effect of Performance of this Duty. 114. Generally.— Where a train is run- ning on a well-fenced track, the company is not necessarily guilty of negligence in in- juring stock trespassing on the track be- cause the engineer does not act upon the gestures made by persons standing near the track, unless they are such as to be a full and fair warning that stock will be injured if the train is not stopped. Dennis v. Louis- ville, N. A. » E. R. Co. v. Dug an, 10 ///. App. 233. Long V. St. Louis, K. 6- N. W. R. Co., 23 Mo. App. 178. A railroad company is not liable for in- juries to animals that enter upon its track at places where to maintain fences would in- terfere with the discharge of its duty to the public, or with the rights of the public in the use of the highway, or in doing business with the company, nor at any place where fences and connecting cattle-guards would mai.e the running and handling of trains or the necessary or proper switching of ca:s more hazardous to its employes. Where animals enter upon railroad grounds at such places, and are killed within limits that can- not be and are not required to be fenced, the company is not liable. Pennsylvania Co. V. Mitchell, 124 fnd. 473, 24 A'. E. Rep, 1065. A company is not liable for killing stock that go upon the track where it is not bound to fence, though it pass along the track and is killed at a point where the company is bound to fence. St. Louis, A. &• T. H. R. Co. V. Linder, 39 ///. 433.— Distinguished IN Toledo. P. & W. R. Co. v. Darst, 51 111. 36s. (2) When it is not practicable to fence.* — Wliere an animal is killed by cars, having entered upon the railroad at a place not fenced on either side, but where it is prac- ticable to fence only on one side, the rail- road company is not liable under the statute. Indiana, B. «S>» W.R. Co. v. Leak, 13 Am. &* Eng, R. Cas. 521, 89 Ind. 596. (3) Uninclosed lands.j — Under Wagn. St. of Missouri, § 43, p. 310, a railroad com- pany is not responsible for stock killed by the cars, etc.. when such killing takes place at a point on their road where it is not fenced, and when it does not pass through or along inclosed or cultivated fields, or un- inclosed prairie lands, unless actual negli- gence be proven. Musick v. Atlantic * P. R. Co., 57 Mo. 134. Under Maine St. 1842, if an injury to one's cattle happen through want of fences upon common and uninclosed land, it is not legally imputable to the negligence of the company. Perkins v. Eastern R. Co. , 29 Me. 307. (4) Public crossings.X — Railway companies cannot be made liable for injuries to animals entering upon their tracks at places where the maintaining fence would interfere with the proper discharge of their duties to the public or with the rights of the public in the use of highways and streets, or in doing business with the company, nor at any place where fences connecting cattle-guards and wing fences would make the running and holding of trains, or the necessary and proper switching of cars more hazardous to their employes. Ohio, I. &^ IV. R. Co. v. Heady {Ind. App.), 28 N. E. Rep. 212. (5) In /OTfWi.S— Although a cattle-guard is placed 28 feet outside the limits of a town and 140 feet from the head of a switch, and the railroad is not fenced between that point and the town limits, the company is not lia- ble, under Missouri Rev. St. 1879, § 809, for an animal killed at such unfenced point, if such part of the track could not be fenced without endangering the lives of employes in switching trains. Jennings v. St. Joseph 6- St. L. R. Co., 37 Mo. App. 651.— Fol- lowing Pearson v. Chicago, B. & K. C. R. Co., 33 Mo. App. 543.— Applied in Straub V. Eddy, 47 Mo. App. 189. (6) Where others besides company must * See ante, 105, 109 ; post, 132. f See ante, lOO ; post, 159. % See ante, 108 ; post, 185-108. g See ante, 09 ; post, 20.'i-212. ANIMALS, INJURIES TO, 118-121. 153 fence.*— \l stock go upon a track at a point where others besicJcs the company are re- quired to fence, in the absence of gross neg- ligence the company is not liable for killing them, whether it be ut the point of entry or at another place. St. Lout's, A. &» T, H. R. Co. V. Lindtr, 39 ///. 433. 118. Where uuiiual jumps or breaks tlirout^li lawful I'euce.— Where animals go upon a railroad track which is fenced, the right of recovery from the com- pany for killing the same will depend upon the condition of the fence at the place where they went on the track, and if thb fence at such point is in good condition, there can be no recovery. Peoria, D. &* E. R. Co. v. Aten, 43 ///. App. 68, A railroad company is not liable for kill- ing a mule that jumps a fence and goes on the track only 50 yards ahead of the engine, in the absence of anything to show defect of machinery, negligence, mismanagement or recklessness of those in charge of the train. Louisville &* N. R. Co. v. IVainscott, 3 Bush (Ky.) 149. — Approved in Volkman V. Chicago, St. P., M. & O. R. Co.. 35 Am. & Eng. K. Cas. 204, 5 Dak. 69, 37 N.W. Rep. 731. Quoted in Washington v. Baltimore & O. R. Co., 17 W. Va. 190. Reviewed in Louisville & N. R. Co. v. Ganote, 13 Am. &" Eng. R. Cas. 519. Where a fence at the point at which an ani- mal broke through the same and got upon the track, was such as the law required to be erected, the finding must be for the defend- ant. Coryell v. Hannibal S- St. J. R. Co., 82 Afo. 441. 110. Liability for iictual nef^li- geuce.t— Though a railroad company may have properly fenced its track, still it will be liable for wilfully killing live stock thereon. New Albany &» S. R. Co. v. McNamara, 1 1 Ind. 543. If it appear that a railroad company has erected and maintained a fence, such as good husbandmen generally keep, it will not be liable for killing stock, except upon proof of negligence, and perhaps not always then. Toledo G^ IV. R. Co. v. Thomas, 18 Ind. 215. Even where a railroad is within a lawful inclosure, the company must answer in dam- ages for injury to stock straying on the * See ante, 88, 89 ; post, 138, 149, 150. tSee ante, 29-^2, 47, til i post, 200,204. 139, 187, track, if shown to have been caused by its negligence. Louisville &* A*. R. Co. v. Sim- mons, 85 Ky. 151, 3 S. IV. Rep. 10. 120. Duty to keep lookout.*— A railroad company has a right to an unob- structed use of its track, and where its fences are in proper condition its employes are not bound to anticipate the presence of cattle trespassing upon its tracks, nor main- tain an especial vigilance in looking for them, until in some way notified that they are in fact, or are likely to be, on the track. Illinois C. R. Co. v. Noble, 56 Am. Sf* Eng. R. Cas. 186, 142 ///. 578, 32 A^. E. Rep. 684; reversing 42 ///. App. 509. Where a railway company has properly fenced its track, and done all that the law has required of it, it will not be liable for injury to stock wrongfully on the track, merely for the want of care and caution to discern such animals. A railway company owes no duty to the owner of trespassing animals to keep a lookout for them up on its tracks to discover their presence there. Illinois C. R. Co. v. Noble, 56 Am. &* Eng. R. Cas. 186, 142 ///. 578, 32 N. E. Rep. 684; reversing 42 ///. App. 509. — Quoting Illi- nois C. R. Co. V. Godfrey, 71 111. 500. While railway companies are not bound to be on the lookout for animals trespass- ing on their tracks at places where it is securely fenced, they are liable for animals killed, where the engineer in charge of the train could, by the exercise of reasonable diligence, have seen the animal and stopped the train in time to avert the accident. Chicago, St. L. &• P. R. Co. v. Nash (Ind.), 24 N. E. Rep. 884. 121. KflTcct of snow-drifts against fences.!— It is not negligence for railway companies to allow snow-drifts to remain over their fences, so that they do not serve the purpose of restraining stock from cross- ing over them into their right of way. Pat- ten V. Chicago, AI. 6- St. P. R. Co., 75 Iowa 459. 39 N. IV. Rep. 708.— Reconciled in Grahlman v. Chicago, St. P. St K. C. Co., 42 Am. & Eng. R. Cas. 588, 78 Iowa 564, 5 L. R. A.813, 43N. W. Rep. 529. •See ante, 02-04, llff; post, 164, 195. t See post, 169. Company not liable where stock goes over a sufficient fence by reason of drifted snow, see 3$ Am. & Eng. R. Cas. 118, abstr. Ul 151 ANIMALS, INJURIES TO, 122. il 3. Injuries Caused by Brcixch of this Duty, a. Where Duty is Imposed by Statute.* 122. Generally.— (I) Statement of the rule. — Since the passage of the Illinois act of 1855, requiring railway companies to fence their roads, such companies are liable for injuries to stock that stray upon their track through the want of the required fences and cattle-guards. Galena &* C. U. R. Co. V. Crawford, 25 ///. 43 5 ■ If animals enter upon a roadway at a place where it is the duty of the railroad com- pany to fence, and are killed or injured, the company is liable if there was no secure fence at that place. Ft. Wayne, C. &> L. R. Co. V. Herbold, 23 Am. <&>• Eng. R, Cas. 221, 99 Ind. 91. In an action to recover the value of a horse killed by the cars of a railroad com- pany, the court instructed the jury that the company would be liable if the horse was killed at a point on the road not securely fenced, and where it could have been fenced without interfering with the rights of the public. Held, that the instruction was not erroneous. Cleveland, C, C. &* I. R. Co. v. Crossley, 36 Ind. 370, 5 Am. Ry. Rep. 552. Under the Iowa statute railroad companies are liable for killing stock that escape from adjoining lands and go upon the track where it is not fenced. Swift v. North Mo. R. Co., 29 Iowa 243. — Following Hinman v. Chi- cago, R. I. & P. R. Co., 28 Iowa 491. The owner of stock which wanders upon the track of a railroad company without the owner's fault, and is injured by the negli- gent running of a train, may recover where the company, though required by law to fence, has failed to do so. Scott v. Chicago, M. &- St. P. R. Co., 68 Iowa 360, 24 N. \v. Rep. 584. A railroad company is liable in damages for killing a horse that goes upon the track while attached to a sleigh at a point where the track is not fenced, and which is not used for depot purposes. Dixon v. New York C. &• H. R. R. Co., 22 A^. Y. S. R. 61, 51 Hun 644, 4 N. Y. Supp. 296. * Liability of r&ilroad companies for injury to animals on track where company is bound to fence and fails to do so, see notes, g6 Am. Dec. 681 ; I L. R. A. 449. Company not liable for injuries to stock by reason of failure to fence where such would have been unavailing, see note, 21 L. R. A. 733. Liability of company for stock killed or in- jured under Missouri fence laws, see note, 11 L. R. A. 436. (2) Its scope and extent. — Where the law makes it the duty of a railroad company to fence its track it will not be excused from liability for killing stock, by showing that the road has been in operation for a number of years without being fenced. Toledo, P. (S- IV. R. Co. V. Wickery, 44 ///■ 76. Under the Indiana statute a railroad com- pany is liable for cattle killed where it has notdiscliarged its duty of fencing, whether the county commissioners have made any order as to the running at large of cattle or not. Jeffersonville, M. &* I. R. Co. v. O'Con- nor, 37 Ind. 95, A railroad company which has failed to fence its road, as required by statute, must run its trains upon the t}asis that cattle rightfully upon adjoining lands may stray upon the track on account of the ab- sence of a fence. The adjoining landowner is not to be deprived of the use of his land by the failure of the company to fence, and in using the same he has a right to expect this course of conduct on the part of the company. Schubert v. Minneapolis &* St. L. R. Co., 27 Minn. 360, 7 N. W. Rep. 366. At places where the law requires rail- roads to maintain fences they are liable for injury to stock because of failure to fence, under Missouri Rev. St., § 809. At places where they are not required, but where they may fence and do not, they are liable, under § 2124. Rhea v. St. Louis &> S. F. R. Co., 84 Mo. 345.— Quoting Wymore v. Hannibal & St. J. R. Co., 79 Mo. 247, Under the New York act of 1850, 233, §44, railroad companies are exempt from liability for injuries to animals only when they erect and maintain lawful fences, or where injury is not the result of wilfulness or negligence. McDmvell v. New York C. R. Co., 37 Barb. (N. Y.) 195. — Approved IN Spinner v. New York C. & H. R. R. Co., 67 N. Y. 153; affirming 6 Hun 600. Under Tennessee acts of 1891, ch. loi, railroads are liable for injury to live stock by their moving trains unless their track is inclosed by a lawful fence. The observance of statutory precautions does not protect company under the statute if track is un- fenced. Railroads are protected from li- ability, under this act, if their tracks are in- closed by a lawfu 1 fence. Cincinnati, N. O. &* T. P. R. Co. V. Russell, 92 Tenn. 108, 20 5. W. Rep. 784. (3) Reason of the rule. — The owner of stock killed upon a railroad is permitted to ANIMALS, INJURIES TO, 123-125. 155 recover from the railroad company, because the recovery will tend to secure the dis- charge of a public duty, impused by law, to fence its roiid. Cincinnati, H. &* I. R. Co. V. HiUireth, -jy Ind. 504. (4) Illustrations. — Tlie cliarter of the Rut- land & Burlington Railroad Company, § 14, requires the company to build and malniain ii sutiicient fence on each side of tlieir road througli the whole length thereof. Held, that the company takes the risk of cattle going upon tlie track through a failure on its part to erect and maintain fences as re- quired, and are liable for damages to such stock. Hurd v. Rutland «&- B. R. Co., 25 Vt. 1 16. — Quoting Sharrod v. North West- ern R. Co.. 4 Wels. Hurlst. & Gord. 584. Where a turnpike is legally but 66 feet wide, a railroad company is liable for killing a cow 43 feet from tiie centre of the turn- pike, it appearing that she was in an open space between a cattle-guard and the cross- ing of the railroad and turnpike. Indian- apolis, C. &* L. R. Co. V. Bonnell, 42 Ind. 539. 123. When liability begins to at- tach.*— Where a railroad company owns and operates a railroad, the construction of which is not entirely finished, and while so operating the road permits the contractor who constructed the road to run his con- struction train over the road so owned and operated by the company, and which at the time isunfenced, and a cow is killed by the construction train in consequence of the omission to inclose the road with a fence where it could have been fenced, an action may be maintained against the company to enforce the statutory liability for the loss of the cow. Wichita (S>» C. R. Co. y. Gibbs, 47 Kan. rjl^, 27 Pac. Rep. 991. Under the Michigan general railroad act the liability of corporations organized under it for a failure to fence the right of way, attaches as soon as it is in possession for the purpose of constructing the road, and this liability extends to agents or contrac- tors in possession. Gardner v. Smith, 7 il//i-//. 410.— Followed in Continental Imp. Co. V. Ives, 30 Mich. 448. Under the Michigan railway act, making it the duty of railway companies to fence their tracks, and providing that until such fence shall be made " the corporation and their agents shall be liable for all damages which shall be done by their agents or en- * See ante, 91 ; post, 125. gines"to live stock, the word "agents" — /<^/ I. R. Co. V. Dunlap, 29 Ind. 426.— DIS- TINGUISHED IN Heller v. Abbot, 79 Wis. 409. A party cannot have the benefit of the Indiana statute of 1853, making companies liable for animals killed without negligence, unless he prove that the track was not fenced as prescribed by the statute. Indianapolis Ht* C. R. Co. V. Means, 1 4 Ind. 30. Under the Indiana act requiring railroad companies to fence, a failure to fence will make a company liable without reference to the negligence of the owner, or whether he was a proprietor of adjoining lands or not. Indianapolis &* C. R. Co, v. To7vnsend, 10 Ind. 38. The Indiana acts of May 11, 1852, and March i, 1853, change the common-law rule that each landowner is entitled 10 the exclu- sive use of his own lands, and is not bcmd to fence against stock of adjoiaing owners, so far as relates to railroads ; and under the statutes it is the duty of such corporations to fence their tracks, and failing to do so, they are liable for all stock killed or injured thereby, regardless of the question of neg- ligence, misconduct, or inevitable accident. Williains v. New Albany &* S. R. Co., 5 Ind. Ml.— Followed in Smitii v. Terre Haute & R. R. Co., 7 Ind. 553; Terre Haute & R. R. Co. V. Jones, 8 Ind. 183. (5) In Kansas — Michigan. — Where an ani- mal, after entering upon the track at a place where it could not legally be fenced, passed off the railroad's premises, and, re-entering upon the track at a point where the com- pany was bound by law to fence, was then killed — held, that the company was liable. Atchison &* N. R. Co. v. Cash, 27 Kan. 587. —Distinguishing Missouri Pac. R. Co. v. Leggett, 27 Kan. 323. When stock gets upon a railroad right of way by reason of the neglect of the com- pany to properly fence its track, and is killed by a passing train, no other negligence need be proved. Talbot v. Minneapolis, St. P. &• S. St. M. R. Co., 82 Mich. 66, 45 A^. W. Rep. II 1 3. (6) In Missouri. — Under the Missouri stat- ute (Revision 1879,^806). it is made the duty of a railroad company to fence its road, and it is made liable to the owner of cattle for double the amount of all damages done to them, occasioned by reason of its failure to fence the road. The neglect to fence its road, according to this act, is of itself neg- ligence, and the corporation is liable in double damages. Donovan v. Hannibal &* Si. J. R. Co., 26 Am. (S- Eug. R. Cas. 588, 89 Mo. 147. 1 S. W. Rep. 232". Proof that stock was injured at a point where the land was uninclosed and prairie- lands, and that the track was not fenced, will make the company liable without proof of negligence. Shelton v. St. Louis, K. C.&' N. R. Co., 60 Mo. 412.— Foi.i.uwi.NG Cary v. St. Louis. K. C. & N. R. Co.. 60 Mo. 209. Under the Missouri act of Dec. 12, 1855, § 5, railroads are liable for stock killed with- out regard to the question of negligence, unless it be when they are killed at crossings or within inclosed fields ; and the same lia- bility attaches to companies subject to the general railroad act, § 52. Burtonv. North Mo. R. Co., 30 Mo. 372. Morris \. St. Louis, K. C. ., 51 Mo. App. 166. The object of the Missouri statute requir- ing railroads to be fenced is the protection of the road, and of property and passengers being carried, and the prevention of injt'iies to live stock on the track ; and if a company fails to fence as required by the statute, or to put up cattle-guards, it will be liable for stock killed on the track without proof of negligence. But a company is not required to fence its track so as to prevent stock from straying upon adjoining fields. Clark V. Hannibal 6- St. J. R. Co., 36 Mo. 202.— Quoted in Cannon 7>. Louisville, E. & St. L. C. R. Co., 34 111. App. 640. Referred to IN Hannibal & St. J. R. Co. ?'. Kenney, 41 Mo, -^mm 158 ANIMALS, INJURIES TO, 120. I 271. Reviewed in Stanley v. Missouri Pac. R. Co., 84 Mo. 625. A railroad company is iiiiblu for stock killed on the track upon proof showing that the killing occurred where thi track was not lawfully fenced, and not at a highway crossing, without actual proof of negligence. I'mvell V. Hannibal «S- St. J. A'. Co., 35 Mo. 457. Under Missouri Rev. St. § 2124, provid- ing that the owner of stock killed or injured on a railroad other than at crossings and where the trark is fenced, may recover, " without |)roof of negligence, unskilfulness, or misconduct," an action cannot be de- feated by showing that the train doing the injury was being run in a careful, prudent manner, and that there was no want ol care or skill. C'. 1 16.— Distin- guished IN Sullivan v. Oregon R. & N. Co., 19 Oreg. 319. Followed in Eaton z/. Oregon R. & N. Co., 19 Oreg. 371, 391. (9) /« Texas — Vermont. — A railroad com- pany is liable for damages to a team of horses which runs away and enters the track at a point other than a crossing, where it is not fenced, under the Texas statute making railroad companies liable for stock injured or killed where the track is unfenced, without regard to negligence. Gulf, C. &* S. F. R. Co. v. Keith, 74 Tex. 287, 11 S. IV. Rep. 1 1 17. Where cattle are killed at a point where it is lawful for them to be, and where the track might have been fenced but is not, the railroad company cannot avoid liability by attempting to show ordinary care on its part, as a failure to fence is a want of ordi- nary care. Gul/, C. &• S. F. R. Co. v. Hud- son, 77 Tex. 494, 14 S. IV. Rep. 158. The plaintiflT's horse escaped from his ad- joining meadow directly on to the track, and was there killed by a passing train. The defendant had neglected to maintain a law- ful fence. Held, that the company was lia- ble, although the owner knew of the defect in the fence, that his horse was breachy, and although there was no neglect in run- ning the train. Congdon v. Central Vt. R. Co., 20 Am. &* Eng. R. Cas. 460, 56 Vt. 390, 48 Am. Rep. 793. (10) Limits and exceptions to the rule. — Under the Iowa statute railroads are abso- lutely liable for killing stock by reason of a failure to fence at any point on the road. ANIMALS, INJURIliS TO, 127. 150 except at station ffruuiids and at cioasings of streets and highways. Clary v. Icnva Mid- land R. Co., 37 Iowa 344. But where a proper fence is maintained, and in places where it is not required to be, tliey arc not liable for animals injured, ex- cept as at common law, where there is ne^- li^ence on their part, and the nct^ii^ence of the owner of the stock dues not contribute to its immediate injury. Thayer v. St. Louis, A. ij* T. H. R. Co., 22 hid. 26. If cattle stray upon a railroad directly from the land of their owner, by reason of the failure on the part of the company to fence their roads at that point, and are killed, the company would be lield liable under the railroad act (St. Nevada, 1864- 65, 427, § 40) on a simple showing of the facts of sucii killing and neglect to fence, without any further showing of negligence ; but it is otherwise if they stray upon public land or from land not belonging to their owner. Wahh v. Virginia &* T. R. Co., 8 Ne%i. no. Under the Wisconsin statute the liability of railroad companies is absolute for all stock killed or injured by reason of their failure to both erect and maintain proper fences; except perhaps the liability would not be absolute where a fence became suddenly broken down, if immediate steps were taken to repair it. Rronvn v. Milwaukee <&* /'. du C. R. Co., 21 iVis. 39.— Distinguishing Hance v. Cayuga & S. R. Co., 26 N. Y. 428. —Distinguished in Fisher v. Farmers' L. & T. Co., 21 Wis. 73. (11) Effect of contributory negligence.* — Where a company fails to fence its track, as required by law, it is sufficient, to fix its lia- bility, if plaintiff's stock, in consequence thereof, and without any contributory neg- ligence on his part, goes upon the track and is there killed or injured. Eiving v. Chicago £r* A. R. Co., 72 ///. 25. A railroad company which fails to fence its track at a place wliere by statute it is re- quired to fence, is liable for stock killed or injured on its track by its engine or cars, and the mere negligence of theownerof the stock is no defence. Burlington &* M. R. R. Co. V. Franzen, 1 5 Am. &* Eng. R. Cas. 530, 1 5 Neb. 365.— Following Burlington & M. R. R. Co. V. Brinkman, 11 Am. & Eng. R. Cas. 438, 14 Neb. 70. Where a company is bound to maintain See /ox/, 148,213-288. fences and cattle-guards, it is liable for all stock killed by reason of a failure to do so, except in cases where the plaintiff drives his stock onto the track and leaves them there, or voluntarily permits them to go onto the track, or by some positive act in- creases the danger. Brady v. Rensselaer &* S. R. Co., I Nun {N. V.) 378, 3 /'. .;;r- C. 537. — guoriNG Bradley V. BulTalo, N. Y. & E. R. Co., 34 N. Y. 427. Revikwing Corwin v. New York & E. R. Co., 13 N. Y. 42. In case for the killing of cows by a train on defendant's railroad, it appeared that the cows when killed were lying on the track in plaintiff's meadow through which the road ran. and into which plaintiff had turned the cows to graze; and that the road, al- though it had then been in partial opera- ti(jn about a month, was there still unfenced. //eld. that under § 47, ch. 28, Gen. St. of Ver- mont, the duty of defendant was absolute to erect and maintain fences along its road; and that therefore question as to contribu- tory negligence on the part of plaintiff in turning his cows into the meadow did not arise. Mead v. Burlington iS>*Z,. R. Co., 7 A/n. &> Eng. R. Cas. 550, 52 F/. 278. A railroad company which has failed to erect fences and cattle-guards, as required by law, is liable, under § 1810, Rev. St. 01 VVisconsin, as amended by ch. 193, Laws of 1881, for the killing of horses when on its unfenced track, in the absence of evidence that the owner drove them upon the right of way, or abandoned them in a place where it was certain that they would go upon the track. Heller v. Abbot, 79 Wis. 409, 48 N. IV. Rep. 598.— Distinguishing Corwin v. New York & E. R. Co.. 13 N. Y. 42; Mis-' souri Pac. R. Co. v. Roads, 23 Am. & Eng. R. Cas. 165, 33 Kan. 64<">! Welty v. Indian- apolis & V. R. Co., 105 Ind. 55; Ft. Worth, C. & L. R. Co. V. Woodward, 112 Ind. 118; Jefferson ville, M. & I. R. Co. v. Dunlap, 29 Ind. 426; Curry t/. Chicago & N. W. R. Co., 43 Wis. 665; Chicago & N. W. R. Co. v. Goss, 17 Wis. 441 ; McCandless v. Chicago & N. W. R. Co.. 45 Wis. 365. 127. PInce of entry, not place of (leatli, fixes liability.— (i) Illinois.— \t matters not whether a track is sufficiently fenced or not at the point where stock is killed. The liability of the company de- pends on the sufficiency of the fence at the point where the stock went on the track. Duggan V. Peoria, D. <&>• E. R. Co., 42 ///. lUU ANIMALS, INJURIES TO, 127. Merely showing that a track was not fenced at a point where a 'ence was neces- sary will not make a company liable for stock killed ; it must appear that the stock entered the track at a point where the law niukes it the duty of the company to fence, and that the loss occurred by reason of a failure to fence. Illinois C. K. Co. v. Finney, 42 ///. ////. 390; Great Wistern R. Co. v. Atorthland, yi III. 451.— Ai'i'i.iKU in Louis- ville & N. R. Co. V. Shelion, 43 III. App. 220. Api'ROVKD in Cecil v. Pacific R. Co., 47 Mo. 246; Atchison, T. & S. F. R. Co. v. Walton, 3 N. Mcx. 319. Followed in Parker v. Lake Shore & M. S. R. Co., 93 Midi. 607. If stock go upon the track at a point where the company is required to fence, and then pass along the track and are killed at a point where the company is not required to fence, the company is liable without proof of negligence in the management of the train. Alsop v. Ohio &■• M. R. Co., 19 ///. App, 292.— QuoiiNG Great Western R. Co. t/. Hanks. 36 III. 281. The bad condition of appellant's fences at other places than that where the stock got upon the track could not be shown. The want of a sufficient fence at the place where the animal got upon the track is the pre- cise thing to be considered, and if no fault existed there, no liability attaches. Chicago, B. &* Q. R. Co. V, Farrelly, 3 ///. ////. 60. Where suit is brought against a company to recover for injuries to cattle, through the alleged negligence of the company to main- tain a proper fence, it is necessary to show that theywenton the track at a point where the fence was defective and insufficient, and it is not enough to show that the fence on both sides of the track was generally poor and defective. Wabash R, Co. v. Brown, 2 III. App. 516. (2) Indiana. — The material question is the condition of the road at the place where the animals enter upon the track, and not at the place where they are killed. Indiana, B. &• IV. R. Co. V. Quick, 109 Ind. 295. Jeffersonville, M. &* I. R. Co. v. Lyon, 72 Ind. 107. Wabash St. L. «S- P. R. Co. v. Tretts, 19 Am. &* Eng. R. Cas. 601, 96 Ind. 450. A company is liable for killing stock that enter the track at a place where it might have been fenced, without a charge of negli- gence. Jeffersonville. M. ij^ I. R. Co. v. IJun- lap, 31 Am. 6- Eng. R. Cas. 512, 112 Ind, 93, 13 A'. £. Rep. 403. If stock come upon a railroad track where it is unfenced, and where it is the duty of the company to fence, and wander to and arc killed at a place where the company is not bound to fence, the company is liable. Wa- bash R. Co. V. I'orshee, 77 Ind. 158.— Dis- TiNOUisHtD IN Louisville, N. A. &. C. R. Co. V. Porter, 20 Am. & Eng. R. Cas. 446, 97 Ind. 267. ' The burden is on the plaintiff in all cases of this character to prove that the animals entered at a point where the railroad com- pany was bound to fence, and that at that point there was no fence. It is the place of entry that controls. Louisville, N, A. &• C. R. Co. V. Goodbar, 102 Ind. 596, 2 N. E, Rep, 337. 3 N. E. Rep. 162. Where it appears that live stock went upon a track over a fence that was generally insecure and not such as good farmers usu- ally keep, it is not necessary to show that the fence was insecure at the particular place where the stock went over. Louisville, N. A. » /. R. Co. V. Avery, 31 Ind. 277. If animals have entered at a place where the railroad company, being bound to fence, has not done so, and they wander or are driven by the engine along the track to an- other place thereon and are there struck and injured by the engine, the company is liable whether or not the place at which Hie injury is done be one at which the company is bound to fence, and whether or not that place be, in fact, fenced, and though in pass- ing to that place from the place of entry the animals may have passed over the place at which the company was not bound to fence, as a public highway. Louisville, N. A. &* C. R. Co. V. Etzler, 3 Ind. App. 562, 30 A': E. Rep. 32. In an action under the Indiana statute ANIMALS, INJUKlliS TO, 127. 161 against a railroad company tu recover dam- ages for the killing or injuring of animals, it is well cstablisiiud that the defendant's liability depends upon the question whether the railroad was securely lenced in at the place where the animals killed or injured by the passing train entered upon the railroad. The question concerning u sutticient fence always relates to the place of entry, not to tho place of the killing or injuring, if it be omer than th. place of entry. Louisvilie, N. A. &* (,. A'. Co. V. /Ha/it, 3 ///p. 562, 30 iV. A". AV/). 32. If an animal is killed or injured by a rail- road train, the animal having entered upon the track at a point where the company was not bound to maintain a fence, such com- pany is not liable for the damage thereby occasioned unless the killing was wilful. Pt'Htisylvania A'. Co. v. LindUyy 2 Ind. App. Ill, 28 A'. E. Kep. 106. (3) Kansas— Minnesota. — Under Kansas Laws 1874, providing for a recovery for death of or injuries to cattle by railway companies, the place of entry and not the place of injury fixes the company's liability. Missouri J'ac A'. Co. v. Leggett, 27 Kan, 323.--DisiiNGUisiiiiU IN Atchison & N. R. Co. V. Cash, 27 Kan. 587. In an action against a railroad company to recover the value of a colt, it appeared that the fence along the track was defec- tive, and that the defect was known to the company. The animal was in the pasture adjoining the track in the evening, and about 9 o'clock at night was struck by the engine and killed. Witnesses testified that the hair of the colt was found on the posts at a narrow gap in the fence through which the colt crowded, and that its tracks could be seen leading to the railway and down the track to a crossing where it was killed. Plain- tiff sought to recover on the ground that the colt ran ahead of the engine into a cattle- guard, and was there struck and thrown out on the highway, where it was found. The engineer and fireman testified that it was standing on the crossing of the highway headed in the same direction that the train was going when it was killed, and the jury found that it was struck on the crossing. Held, that the fact that it was struck and killed on the crossing would not defeat re- covery if it escaped from the pasture through the gap, and that the evidence was sufli- lient to sustain a verdict for the plaintifl. Kansas City, Ft. S. Gt* G. R. Co. v. Surge, 40 I U. R. U.— 11. Am. &• Eng. K. Cas. 181,40 Kan. 736, 31 Pac. A'l-p. 589. In case of accident resulting from the presence of animals on a railroad track, caused by want of a proper fence, it is the condition of ihu road where they enter upon it, and not where they arc killed, that governs. Cox v. Minneapolis, S. St. M. &* A. A'. Co., 38 Aw. &* ling. A. Cas. 287, 41 Minn. 101, 42 A'. \V. Rep. 924. (4) Missouri. — It is the place where the animal got on the track, and not where it was killed, that fixes the railroad company's liability. Miller v. IVabas/i A'. Co., 47 jifo, ////. 630,— Applying Eliret v. Kansas City, St. J. & C. B. K. Co., 20 Mo. App. 251; Moore v. Wabash, St. L. & P. R.Co.,81 Mo. 499; Nance 7>. St. Louis, I. M. & S. R. Co., 79 Mo. 196; Cecil V. Pacific R. Co., 47 Mo. 246.— K/iret V. Kansas City, St. J. &* C.B, R. Co., 20 Mo. App. 251. Under the Missouri statute requiring rail- road companies to fence their tracks, a company is liable only for injuries to stock that go upon the track where the company is required to fence, and a complaint under the statute is not good which docs not con- tain an averment, expressed or implied, to that effect. Nance v. St. Louis, I. M. &- S, A. Co., 19 Am. &■• Eng. A'. Cas. 594, 79 Mo. 196.— Following Cecil v. Pacific R. Co., 47 Mo. 246. —Applied in Miller v. Wabash R. Co., 47 Mo. App. 630. Distinguished in Morrow v, Missouri Pac. R. Co., 82 Mo. 169. Followed in Busby v. St. Louis, K. C. & N. R. Co.. 81 Mo. 43; Wilson v. Wabash, St. L. & P. R. Co., 18 Mo. App. 258; Pear- son V. Chicago, B. & K. C. R. Co., 33 Mo. App. 543. Quoted in Moore v, Wabash, St. L. & P. R. Co., 81 Mo. 499: Brassfield V. Patton, 32 Mo. App. 572. A railroad company is liable for stock killed that enter the track where it is re- quired to fence, though the stock were killed at a point where it is not required to fence, where the killing is due to a failure on the part of the company to fence at the point where the cattle entered. Snider v. St. Louis, /. M. 6- 5. R. Co., 7 Am. &* Eng, R. Cas. 558, 73 Mo. 465. In order to recover against a railroad for killing hogs, under the Missouri railroad act, §43, proof, that the fence is defective oa both sides where the hogs were killed was not sufficient, unless it appear that the hogs got on the track by reason of the com- pany's failing to fence where by law it is re* 163 ANIMALS, INJURIES TO, 128. t!l# quired to do, so or that the company was re- quired to fence at the place where ttie hugs were killed. Clardys. St. Louis, J. M. &• S. R. Co., 7 Aw. &* Eng. R. Las. 555, 73 Mo. 576. On a retrial the evidence should be pre- sented with greater care, so as tu show whether the animal entered the track from tl e public road or not, as in the one case thr defendant would be liable, in the other Hdt. .lUuiits V. Qiiincy, O. &* R. C. R. Co., 52 A/o. App. 590. Railroad companies, under § 809, Rev. St., are not liable to the owner uf stock killed or injured, unless it got upon the track at a place where they are by law required to fence, no matter at what place it may be killed or injured. BrassfieUi v. Patlon, 32 Mo. App. 572.— Quoting Nance V. St. Louis, I. M. & S. K. Co., 79 Mo. 196. In actions under this section (Rev. St. § 809) the fact should appear by direct averment or necessary implication that the animal got upon the defendant's railroad track at a point where by the law the de- fendant was required to erect and maintain fences. BrassfieUi v. Patton, 32 Mo. App. 572. A railroad company is not liable under the Missouri double damage act, unless the stock injured or killed went upon the track at a point where the company is required to fence, regardless of wlieie it may have been injured. Moore v. Wabash, St. L. &* P. R. Co., 81 Mo. 499.— Quoting Nance v. St. Louis, I. M. & S. R. Co., 79 Mo. 196.— Ap- plied IN Miller V. Wabash R. Co., 47 Mo. App. 630. In order to recover double damages from a railroad company for injuries to stock under the Missouri act, it is not necessary to prove by direct evidence that the stock passed through the fence at a defective place, where it appears that the cattle went upon the track at a point where there was not a lawful fence. Gee v. St. Louis, /. M. &* S. R. Co., 80 Mo. 283. — Applied in Harned v, Missouri Pac. R. Co., 51 Mo. App. 482. DisnNGUiSHED IN Walton v. Wabash W. R. Co.. 32 Mo. App. 634. Fol- lowed IN McBride v. Kansas City, St. J. & C. B. R. Co., 20 Mo. App. 216; Johnson v. Chicago, B. & K. C. R. Co., 27 Mo. App. 379- (S) Oregon — Wisconsin.— Prooi of the place of entry of the stock only bcromes material and devolves on the pluintifl when stock are killed or injured at a place where the railiuad company is not bound to fence, as a public highway, which have entered where its track was unfenced and the duty to fence existed, and such killing or injury is tile direct consequence of omission to fence. Sullivan v. Oregon R. &^ N. Co. , 42 Am. ^^ Eng. R. Cas. 625, 19 Oreg. 319, 24 Pac. Rep. 408. Under the Wisconsin act of 1S60, ch, 268, in order to recover from a company for stock killed on the track tlie owner must show that the stock got on the track at a point where the company was bound to tence, but neglected to do so. and he cannot recover by merely showing that near the place where the injury hup|jeiied, and near the company's depot, certain lands of the company wen- not fenced. Bennett v. t«/- cago&^A'. W. R. Co., 19 Wis. 145. Plaintiff's cow strayed upon the defend- ant company's track and was killed by a passing train. She might have strayed on the track either at the company's station grounds, where they were not bound to erect a fence, or at other points where a fence should have been constructed, though the company had failed to do so. In an ac- tion to recover for the loss of the cow — Ae/i/, that the plaintiff's case was fatally de- fective in that it failed to show that the cow had strayed on the track at a point where the company was bound by statute to con- struct a fence. Bremmer v. Green Bay, S. P. -i:n. 103 Duke 7'. Kansas City, Ft. S. & M. R. Co., 39 Mo. App. 105. It need not be sliown by direct evidence where the animal strayed upon the railroad tracic. Proof that it was killed at a point where there was no fence, but where the company was in duty bound to fence, is sullicient to take the case to the jury. Lepp V. St. Louis, I. M. &^ S. A\ Co., 29 Am. Sr- luit;^. A'. Ciis. 242. 87 J/o. 1 39. i21>. Proof of death at place re- quired to be t'eiicetl, when Huftlcieiit. —A railroad company is liable for the kill- in),' of slock at a point where it was required by law to fence, though there be no evidence where the animal came upon the track, nor th:U the plaintifT was an adjoining or next- adjoining landowner. Kinion v. Kansas Lily, I't. S. (S- M. R. Co., 39 Mo. App. 574. — UisiiNdUiSHiNG Ferris v. St. Louis & II. R. Co., 30 Mo. App. 122. Under § 2124. Rev. St. Missouri, relating to damages for killing stock by railroads, in order to const iiute a cause of action, the injury must appear to have occurred at a place where there was no lawful fence, and where such fence could have been erected by the company had it so desired, and that it occurred at a place other than the crossing of a pul)lic highway, and not within the limits of any incorporated town or city. Vail V. Kansas City, C. &* S. R. Co., 28 \'<:. App. yjz. 13(>. Rule where eoiiipaiiy has the right to hut does not fence.*— (i) In Itnva. — While the statute, § 1269, Code Iowa, docs not impose an abstract duty or oKiigation upon railway companies to fence their roads, yet, as to live stock running at large, a failure to fence fixes an absolute lia- bility for injuries occurring in the operation of the road by reason of the want of such fence. Wi-isli v. Chicaf^o, li. S^ Q. R. Co., 53 Iffiva 632. 6 JV. W. Rep. 13, 21 Am. h'y. Rep. 181.— QuorKi) in Sullivan v. Oregon R. & N. Co., 19 Oreg. 319. Undef the Iowa act of 1862, ch. 169, § 6, the liability of railroads for stock killed or injured is not absolute, but often depends on the question of negligence, as the statute only relates to places " where they have a right to fence."' Davis v. Burlington «S<» M. R. R. Co., 26 /ou'a 549.— Reviewing Indi- anapolis & C. R. Co. 7f. Kinney. 8 Ind. 402 ; Whitbeck -,'. Dubuque & P. R. Co., 21 Iowa *Stefoi/, a 12. 103 ; Lafayette & I. R. Co. 7: Shriner, 6 Ind. 141 ; Indianapolis & C. R. Co. 7/. Oestel, 20 Ind. 231 ; Galena & C. U. R. Co. 7'. Griffin. 31 111. 303; Indianapolis & C. R. Co. 7: Guard. 24 Ind. 222.— DisriNdUisHEn in Mundhenk v. Central Iowa R. Co., 11 Am. & Eng. R. Cas. 463, 57 Iowa 718; Andre ;'. Northwestern R. Co., 30 Iowa 107. Fol- lowed IN Rogers 7/. Chicago & N. W. R. Co., 26 Iowa 558; Durand 7'. Chicago cSi N. W. R. Co.. 26 Iowa 559; Packard 7: Illinois C. R. Co.. 30 Iowa 474. ytorKi) in Mian- ford V. Minneapolis it St. L. R. Co., 29 Am. & Eng. R. Ca.s. 289, 71 Iowa 310, 32 N. W. Rep. 357; Moses ?'. Southern Pac. R. Co.,42 Am. & Eng. R. Cas. 555, 18 Oreg. 385. Re- viewed in Greeley 7/. St. Paul, M. iSr M. R. Co., 19 Am. & Eng. R. Cas. 559, 33 Minn. 136, 53 Am. Rep. 16. Where an occupant of land traversed by a railway allows his swine to run at large on the land, and they go upon the track at a point where the company has the right to fence but does not, and are killed by a pass- ing train, he may recover of the company, under § 1289 of the Iowa Code, without proving that they were killed through the negligence of the company's servants. Lee V. Minneapolis ^^ St. L. R. Co., 20 Am. &* Kng. R. Cas. 476, 66 /(Kca 131, 23 A', tr. Rep. 299. — Following Krebs 7'. Minneapolis & St. L. R. Co., 64 Iowa 670. Reviewing Fernow t. Dubuque iN: S. W. R. Co., 22 Iowa 528; Spence t-. Chicago & N. W. R. Co.. 25 Iowa 1 39 ; Stewart 7'. Chicago & N. W. R. Co., 27 Iowa 282. (2) /« J'e.ras. — Where a company might fence its track but fails to do so, it is liable under the statute for stock killed. A failure to fence renders the company liable where fencing is practicable, but If not, then it is only liable for negligently killing stock. /«- /ern,ifional &* G. A'. R. Co. v. Leut/ers, i Te.v. App. (C'/V. Cas.) 133. Where an animal is killed by a locomotive or cars, the owner is entitled to recover from the company its value without proving negligence on the part of the company or its .servants, unless the company has its road fenced, if it be not unlawful to fence it at thiit point. A failure to fence where it is not unlawful to do so is in itself negligence. Te.vas &• P. R. Co. v. Mitchell, 2 Tex. App. (C/T. Cas.) 324. l.'M. Rule where owner haH rljfht to hut does not fence.— The Illinois act of 1869, giving the landowner 164 ANIMALS, INJURIES TO, 132-138. the right to build a fence along the railroad track over his premises, and hold the com- pany liable therefor, upon its failure to fence on notice, does not release railroad coni- l)anies from their liability, under the act of 1855, for stock killed. The later act creates 110 duty upon the landowner to fence, but merely gives him the privilege to do so, and the fence, when so built by the owne- )f the land, will be the property of the cornpany. Toledo, P. &^ ir. a: Co. v. /'c'ncf, 68 ///. 524. The adjoining owner has a right to fence under the statute after the lapse of three months, if the railroad fails to do so; but such right is cumulative, and does not deprive him oi his right of action under other provisions of ji 2b\i of the Mis- souri Code. Co///) V. A'lif/stis C'/'/i", /•"/. .V, i}>> M. N. Co., 43 Mo .Ipf). 313. -FoLLowiNii CarpentLT v. St. Louis, I. M. & S. R. Co., 20 Mo. A pp. 644. 132. Failure to I'eiico 011 botli Ni(i<>H of truck.*— Under the New York act of 1854, ch. 282, § 8, it Is the duty of rail- road companies to maintain fences on each side of their roads, and the company will be liable to the owner of a horse that goes from an adjoining lot and is killed by falling into a cut at the side of the track which is not fenced. Graliam v. Delawari' 6- H. C. Co., 46 II in (.V. 1'.) 3S6, 1 2 .V. )'. .v. K. 390. i;i;i. Leaving opening iiotwecn conii»any'.s fenee and tlie liigliway.f — Where a company through mistake fails to properly fence its track at a higlnvay crossing, leaving unfonced a space, on plain- tiff's lands, between the railroad fence and the highwjiy fence, which spare was defec- tively fenced by plaintifT, the company is lia- ble for the death or injury of animals get- ting upon its txack by reason of its failure to maintain proper fences. Co/i-man v. Flint &> P. M. A\ Co., 29 Am. &* F.ni;. A\ Cos. 247, 64 Mich. 160, 31 A'. IV. K,-p. 47. 134. Rule wlicrc animal is (res- imssing upon riglit of way4— On the ground of public policy, railroad companies are liable for killing trespassing stf)ck at points where the track is not fenced. AVrc Albany ^^ .S. A'. Co. v. Fix, 12 Ind. 485. ♦See ontf, lOo, 109. f See/o.r/. 1»0. t See antf, 43-((0 ; /■o.tf. 152-150. TrespassiiiK animals injured owing to failure lo fence— liability of company, see note, 22 Am. & Est.. R. Cas. 614. Followed in New Albany & -S. P. Co. v. Collins, 12 Ind. 526, 135. NeeesHity for actually strik- ing aninial."* — The true meaning of § i of the Illinois act "in relation to fencing and operating railroads," as amended in 1879, is that the injury to stock must be caused by actual collision — thai is, it must be done by the " agents, engines, o.' cars " of the company, or the wilful miscondiu i oi the trainmen, to make the cor.ipany liable. Sf/iiT/a V. Indianapolis, B. 4f/ Q. R. Co., 74 Iowa 248, 37 S\ //'. Rip. 182. — DisriNdUiSHLD IN Van Slyke V. Chicago, St. P. & K. C. R. Co., 80 Iowa 620. Where a statute makes it tlie duty of rail- roads to fence, a company is liable for stock l^illed if the failure to fen :e and the run- ning of the train were the oroxiniate cause of the killing. So where a horse came on- to an unfenccd track, and, taking fright at an approaching train, ran ahead of it and was killed by jumping from a culvert, the company was held liable. Young v. .SV. Louis, K. C. &^ A'. A'. Co., 44 lonHi 172. Under the Missouri statute a railroad company is liable for killing live stock on tlu' track only where it appears that the in- jury is due to a faihire to fence or erect cattle-guards on that portion of the road which the company is bound to secure by a fence or cattle-guards. Cecil v. Pacific R. Co., 47 Mo. 246.— ArPROViNO Morrison v. New York iS: N. II. R. Co.. 32 Barb. (N. Y.) 568, Great Western R. Co. v. Hanks, 36 III. 281; Great Western R. Co. v. Mortliland, 30 III. 451 ; Brooks V. New York & E. R. Co., 13 Bari). (N. Y.) 594: Bennett v. Chi- cago & N. W. R. Co., 19 Wis. 145. • Ai'Pi.iK.n IN Miller v. Wabash R. Co., 47 Mo. App. ♦ See ,mt,-, 34-:>(( ; post, 188. 630. Followed in Nance v. St. Louis, I. M. & S. R. Co., 19 Am. & Eng. R. Gas. 594, 79 Mo. 196; Cunningham v. Hannibal & St. J. R. Co., 70 Mo. 202. Not followku IN Fickle V. St. Louis. K. C. & N. R. Co., 54 Mo. 219; Walther v. Pacific R. Co., 55 Mo. 271. Under the Wisconsin act of i860, ch. 268, § I, and the act of 1872, ch. 119. § 30, rail- road companies are liable for damages to live stock by a failure to fence as required ; and in suing for injuries to live stock, under the statutes, it must allirmatively appear that the injury was due to the lack of a proper fence, and the evidence must con- nect the injury with the lack of the fence at some point on the road, either near to or dis- tant from the plaintid's premises. Lawrence V. Milwaukee, L. S. &• W. R. Co., 42 H'is. 322, 15 Ant. Ay. Re/ 366.— QuOTKD IN Murphy V. Chicago & N. W. R. Co., 45 Wis. 222. Where a railroad company built a barbed- wire fence one quarter of a mile in length along its track, but failed to construct proper cattle-guards or fences at the ends thereof, through which openings plaintiff's horses entered the right of way and were frightened by the blowing of the whistle, and jumped upon the fence and were injured — //<•/,' tlie line of the road. I'erkins v. St. Louis, I. M. &> S. A'. Tv, 103 Mo. 52. 15 S. IV. A'. 320. Assuii)iii){ thui u railway company which fails to fence its road, jiiirsuant t,'( the re- quirement of the statute (Rev. St. Missouri, 1889, ((2611), is liable for the escaite of stock resulting from its default, even when such stock arc not killed or injured on its right of way, still its liability must be re- stricted to losses which, under general prin- ciples of the law, are the proximate conse- quences of its default. And — //<•/(/, tltat the railway company was not responsible for the loss of stock which had thus escaped from adjoining unfenccr,' lands and tlu-n been killed by employes of a contractor '-ngaged in the construction of its 1 ari. Gordon v. C/inaifo, ■'■>'. r. &* C. R. Co., 44 Mo.Af>p. 201. A railwiy company is not, by reason of its failure to fence its road, liable for the loss of flesh of cattle, caused by their fright it passing trains while they are on the com- pany's land. Duoley v. Missouri Pac. R. Co., id Mo. A pp. 381. b. Where Duty is Imposed by Contract.* i:t8. Wiierc by contract company niiiHt fence. — Where a company, in part consideration for a deed conveying a right of way, agrees to build and maintain a good and sufficient fence upon both sides of the right of way, and farm crossings with cat- tle-guards, a failure to construct cattle- guards at a farm crossing, and to make the fastenings of the gates secure for a continu- ous period of about two months, constitutes breach of the contract, and the owner of the lands may maintain an action against the company for damages for stock escaping and killed upon defendant's track in con- sequence of the breach. In such action, the value of the cattle, and not fhe cost of erecting and maintaining a secure and sufli- cient fence, is the measure of damages. Chicago &* A. R. Co. v. liarnes, 38 Am. &^ Eng.R. C', :too,52». lands, without negligence on the part of the owner, and are killed on the track. Fer- HOW V. Dubiiyiu'&* S. IV. R. Co., 22 Iowa 528. — Followed in Stewart v. Chicago & N. W. R. Co., 27 Iowa 282. Rkvieweu in Lee v. Minneapolis <^ St. L. R. Co., 66 Iowa 131. A company is bound by a covenant in a deed to "make and maintain good and suf- ficient fences on both sides " of its right of way through a certain tract, and when sued for killing stock by reason of not complying with the covenant, it is error for the court to instruct the jury " that a compliance by defendant with the statute as to fences exonerated it from liability." Thompson v. New York S* H. R. Co., i T.&*C. (M Y.) 411. A company, in purchasing the right of way, bound itself by contract with the owner of land through which the road passed, to fence the road through his land. The com- pany neglected to fence, and the owner's cattle being on his land, went upon the road and were killed by the engines. Held, that he could no recover dama;;es for the injury in an action of tort. To render de- fendants liable, it must appear that the dis- aster was exclusively their neglect. Drake V. Philadelphia &* E. R. Co., 51 /',/. .S7. 240. law. Wliere by contract land- owner must fence.*— (I) Liability to contracting landowner. — Where by con- tract with a company, the owner of the land through which the railroad passes has undertaken to maintain the fences, be had by him against an injury to his animals from a failure to per- Indianapolis, P ^^ C R. Co. V, Petty, 25 Ind. 413.— Distinci'ished IN Kansas Pac. R. Co. v. Peavy, 29 Kan. 169, 44 Am. Rep. 630. Ovekrul'-',!) in Hunt v. Lcke .Snore & M. S. R. Co., 35 Am. & Eng. R. Cas. 176, 112 Ind. 69, 11 West Rep. i- , 13 N. E. Rep. idi.— Terre Haute &* R. R. Co. V. Smith, 16 Ind. 102. — Quo riNG Corwin 7'. New Vr)rk & E. Co.. 13 N. Y. 42. Rkcon- cil.iNG isew Albany & S. R. Co. v. Maiden, 12 Ind. 10. Where an adjoining landowner expressly or impliedly agrees to build and niain- t.iin fences lietween his lands and tlie railroad, as to him the track will be re- garded as fenced, and he cannot recover from the company for the loss of aiii- • See ante, 93} fost, 140, 300. no recovery can the ':ompany for which resulted form the contract. ANIMALS, INJURILS TO, 13U. 16; mals which, for the want of such fence, pass to the track and are injured or killed. Bond v. Evansville &* T. H. R. Co., 23 Am. 6- £ng^. N. Cas. 200, 100 Ind. 301.— Quoting Indianapolis, P. & C. R. Co. V. Shinier, 17 Ind. 295. Though a staf tte makes it the imperative duty of a company to fence its track, still an owner who has contracted with the com- pany to fence between his lands and the track cannot recover for stock killed by rea- son of such failure to fence. Ells v. Pacific R. Co , 48 Mo. 231.— QuoTKD IN Wymore v. Hannibal & St. J. R. Co., 79 Mo. 247. Where an adjoining landowner has agreed with a company, for an adequate considera- tion, that he will fence between his lands and the track, a failure to fence for six years will not discharge him from the duty, so as to make the company liable for stock that may go upon the track through the neglect of the owner to build such fence. Talmadge v. Rensselaer &* S. R, Co., 13 Rarfi. (N. V.), 493- Though the general railroad act of New York requires railroad companies to erect and maintain on either side of the track fences such as would be a lawful fence be- tween adjoining owners, yet a landowner who has agreed with the company, for a valuable consideration, to fence between his lands and the track, cannot recover from the company for stock killed which go upon the track by reason of the owner failing to fence as he lias agreed. Talmadge v. Rens- selaer &* S. R. Co., 13 Barb. (N. Y.) 493. —Distinguishing Suydam 7/. Moore, 8 Barb. (N. Y.) 358. Reviewing Waldron v. Rensselaer & S. R. Co., 8 Barb. (N. Y.) 390. — .\PPLIED in Terry v. New York C. R.Co., 22 Barb. (N. Y.) 574. Not Followed in Washington v. Baltimore & O. R. Co., 17 W. Va. JO. Where the owner of land through whi, '.•- a railroad runs agrees with the railroad com- pany, for a valuable consideration, to build and keep up good and sufficient fences on both sides of the road through his lands, and fails to do so, and on account of the in- sufficiency of such fences his animals stray upon the track and are injured, he is not en- titled to recover for such injury, although the insufficiency of the fences was caused by casualty and without negligence on his part, unless such injury is shown to be inten- tional or the result of gross carelessness on the part of the agents and servants of the company. Pittsburgh, C. &* St. L. R. Co. v. Smith, 26 Ohio St. 124. (2) to his lessee* — An adjoining prop- erty owner who has covenanted with a com- pany to maintain fences along the track, cannot recover for stock killed by reason r.f his failure to do so; and this is so ot his lessee. Jiiiffy v. Atw York &> H. R. Co., 2 Hilt. (A'. J'.) 496. Where cattle of a lessee of lands adjoin- ing a track were killed by reason of a defec- tive fence, in the absence of proof of gross negligence or carelessness on the part of the company, it will not be liable where it is shown that the lessor of the lands was under obligation to fence. Cincinnati, H. &* D. R. Co. v. Water son, 4 Ohio St. 424. — Ap- proved IN Gorman %>. Pacific R. Co., 26 Mo. 441. Distinguished in Cincinnati & Z. R. Co. V. Smith, 22 Ohio St. 227 ; Gill v. Atlantic & G. W. R. Co., 27 Ohio St. 240 ; ' Pittsburg, C. & St. L. R. Co. ?'. Allen, 19 Am. & Eng. R. Cas. 657, 40 Ohio St. 206. Quoted in Central Ohio R. Co. v. Law- rence, 13 Ohio St. 66. (3) to his assignee.] — Where a rail- road company is legally bound to fence its track, and is sued for killing stock, it cannot set up the defence that the owner of the stock was legally bound to fence tinder a covenant existing beiween the company and his assignor. Shepard v. Buffalo, N. Y. &> E. R. Co., 35 A^. Y. 641. — Following Cor- win V. New York & E. R, Co., 13 N. Y. 42; Pohler V. New York C. R. Co., 16 N. Y.476. — Distinguished in Diamond Brick Co. V. New York C. & H. R. R. Co., 28 N. Y. S. R. 95, 7 N. Y. Supp. 868, 5 Silv. Sup. 321, 55 Hun (N. Y.) 605 mem. Followed in Tracy V. Troy & B. R. Co., 38 N. Y. 433 ; affirmed in 55 Barb. 529. (4) to lessee of his grantee.\ — A land- owner conveyed a right of way through his lands for a railroad, and covenanted for him- self, his heirs, and assigns, to erect and main- tain proper fences on each side of the track, but reserved the right to pass and repass across the track, so as not to interfere with the company's business. He afterward con- veyed the land without any such reservation, and the tenant holding under such grantee sued the railroad company for killing his stock by reason of the track not being fenced. Held, that he could not take ad- * See ante. 04 ; post. .'HO. + See/oj/. ,*J1». tSee ante, 04 ; fast, 310. 168 ANIMALS, INJURIES TO, 140. W4 vantage of a failure on the part of his landlord or of the former owner to keep the provision of the deed requiring the owner to fence. Easter v. I.itl/f Miami A'. Co., 14 (;///■<; 5/.48.—DisTiN(;uisnKi) in Gill V. Atlantic & G. W. R. Co.. 27 Ohio St. 240. QuoTKi) IN Pittsburg, C. & St. L. R. Co. 7'. Bosworth, 38 Am. & Eng. R. Cas. 290, 46 Ohio St. 81, 2 L. R. A. 199, 18 N. E. Rep. 533. (5) Liability to third persons.* — Where a company is required to fence and has failed to do so, it cannot avoid liability for killing stock by sho.ving a contract with an adjoin- ing owner to maintain the fence, the owner of the stock killed not being a party to such contract. Iniiiannpolis, P. &• C. K. Co. v. Thomas, 1 1 Am. 6- Eiitr. R. Cas. 491, 84 Ind. 194. — Applying New Albany tt S. R. Co. v. Maiden, 12 Ind. 10. Criticising Indian- apolis & C. R. Co. %>. Lowe, 29 Ind. 545. OvK.RRULiNG Indianapolis & C. R. Co. v. Adkins, 23 Ind. 340. The fact that a company holds a contract or covenant against a third person, requir- ing him to maintain a fence, and that the cattle killed got upon the track through such person's failure to perform lu^ engage- ment, docs not shield the company from the statutory liability to the owner. Gill v. At- lantic ^ G. IV. R. Co., 27 Ohio St. 340.— Distinguishing Russell t'. Hawli-v iolowa 219; Great Western R. Co.?'. Helm, 27 III. 198; Indianapolis & C. R. Co. ?'. Adkins, 23 Ind. 340; Cincinnati, H. & D. R. Co, ?'. Water?on, 4 Ohio St. 424 ; Easter ?'. Little Miami R. Co., 14 Ohio St. 48. Distin- guished in Ballimore & O. R. Co. 7'. Wood, 47 Ohio St. 431. On -he trial of a suit against a company to recover the value of the plaintiff's animals killed by the defendant's train of cars, the evidence established that .said animals were so killed on the defendant's railroad, at a point where it was not but ou^lit by law to have been fenced, at\d on the land of one whose grantor thereof had formerly, by a proper instrument and for a valuable con- sideration, granted to the dcfendaiirs prede- cessor the right of way, and had therein and thereby covenanted to build a good fence along said road, sufficient to prevent stock from entering thereon, and tluii he and his heirs and assigns would forever maintain the same in g(M)d repair. //(/n>iion v. Chicago &* A'. W. R, C(>., 33 Lm>a 151, \o Am. Ry. Rep. 32. Having once built a sufficient fence a com- pany may be liable for injuries to stock that go upon the track by reason of defects that afterward occur in the fence, if it appears that there was undue neglect in permitting the fence to get out of repair, and that it was so out of repair that a man of ordinary ciire would have anticipated danger to stock. Gouiii v. Bangor (S- /'. .A'. Co., 82 Me. 122, 19 Atl. Rep. 84. A company, in maintaining fences along the track, is only bound to reasonable dili- gence, and is not liable for injuries to cattle whi.h come upon the track through defects not traceable to want of care. Grami R,i/>i(is &^ /. R. Co. V. Afonroe, 47 Mich. 1 52, 10 A'. W. Rep. 179. Where a company has properly fenced its track it is otilv required thereafter to use proper diligence to keep the fence in ordi- • See ante, 4874ttr5iB, 02, 1 loT/'w/T 180. nary lepair, and it will not be liable where others break down the fence and cattle go upon the track and are killed. Case v. St. Louis «S- S, /•'. A'. Co., \iAm. &* Eng. R. Cas. 564, 75 Mo. 668.— FuLl.oWEUlN Foster V. St. Louis, 1. M. & S. R. Co. 44 Mo. App. II. yuoituiN Walthersz/. Missouri Pac. R. Co., 78 Mo. 617. Where a company has erected a fence in compliance witli the law, it is held to a high degree of care in keeping the fence in re- pair, which means something more than ordinary care and diligence, though the com- pany is not absolutely liable for injuries to stock, irres])cctive of negiiujeiue, which may happen where the fence was suppo-^ed ir) be sullicicnt. Aiiiisdel \. c'/z/k/vc c^ \. //'. A'. Co., 26 Wis. 145, 2 .////. AV. A''. &^ Q. R. Co. V. Seircr, 60 ///. 295, 1 2 Am. Rjf. Rep. 315. Having erected a fence as required by law, the company is only liable fur stock that go over the fence at a point where it is out of repair, and are killed on the track, where it has knowledge that the fence is out of re- pair. Hodge V. New York C.Sf H. R. R. Co., 27 Hun (A'. 1'.) 394.— Applied in McGuire v. Ogdensburg & L. C. R. Co., 44 N. Y. S. R. 348, 63 Hun 632, 18 N. Y. Supp. l\l.—Heaston v. Wabash, St. L. &* P. R. Co., 18 Mo. App. 403. A company will be held responsible for cattle killed or injured by reason of a fence getting out of repair, such fence having been legally sulficient when erected, even though the company has no actual notice of the de- fects therein, when by the use of reasonable diligence a knowledge of the condition of the fence would have been acquired. Vin- yard\. St. Louis, /. M. &* S. R. Co., 80 Mo. 92. -^Following Clardy v. St. Louis, L M. & S. R. Co., 73 Mo. 576.— Followed in Fos- ter V. St. Louis, I. M. & S. R. Co., 44 Mo. App. II.— Heaston v. IVabash, St. L. &* P. R. Co., 18 Mo. App. 403. To authorize a recovery for the killing or injuring of cattle by reason of defects in a fence, erected and maintained by a com- pany, it must be shown that the company had actual notice of such defects, or that by the use of reasonable diligence it might have acquired such knowledge. Davis v. Chicago, R. /. &* P. R. Co., 40 Iowa 292.- 170 ANIMALS, INJURIES TO, 142. Following Aylesworlli v. Chicago, K. I. & P. R. Co., 30 Iowa 459.— Followed in Brentnerv. Chicago, M. & St. P. R. Co., 7 Am. & Eng. R. Cas. 574, j8 Iowa 625. —Hilliard v. Chicago 6- A'. W. R. Co., yj Iowa 442. Aylenvorth v. Chicago, R. I, &* P. R. Co., 30 Iowa 459.— Foi.LowKi) in Brentner v. Chicago, M. & St. \'. \i. Co., 7 Am. & Eng. R. Cas. 574, 58 Iowa 625 ; Davis V. Cliica^o, R. 1. & P. R. Co., 40 Iowa 292 ; Farley v. Chicago. R. I. & P. R. Co., 42 Iowa 234. Not ovkkkuleu in Henderson V. Chicago, R. 1. & P. R. Co., 48 Iowa 216. — Laney v. Kansns City, St. J. &* C. li. R. Co., 83 i»/3- P. R. Co., 18 Mo. Apfi. 403.— Following Clardy v. St. Louis. 1. M. & S. R. Co.. 7 Am. & Eng. R. Cas. 555, 73 Mo. 576; Morris v. Hannibal & St. j. R. Co., 19 Am. & Eng. R. Cas. 666, 79 Mo. 367.— FoLLoWKii in Fosters. St. Louis, I. M. & S. R. Co., 44 Mo. App. \\.— Clardy v. St. Louis, I. M. Sf S. R. Co., 7 Am. . Chicago, R. I. & P. R. Co., 30 Iowa 459; Perry v, Dubuque S. VV. R. Co., 36 Iowa 102 ; Davis V. Chicago, R. I. & P. R. Co., 40 Iowa 292 i McCormick v. Chicago, R. I. & P. R. Co., 41 Iowa 193. Though a company is not liable for injury to cattle caused by a defective fence unless it was negligent in failing to repair within a reasonable time after notice of its condi- tion, it is not necessary that the notice should have been given by a plaintiff whose cattle have since been injured. Dunn v. Chicago «S- A'. W. R. Co., 7 Am. &' Eng. R. Cas. 573. 58 /owa 674. 12 N. W. Rep. 734. (2) y//;/.r//-rt//W;/j.— Where a railroad is re- quired to keep its track ftMiced, and a breach is made in the fence by (^'arties not in the employ of the company, and the company have no knowledge of such breach, and there are no circumstances showing that it was authorized to anticipate the breach being made, and by reason of such breach stock get upon the track and are killed be- fore the company have had a reasonable time to learn about the breach, the company will not be liable ; and a covenant or condi- tion, in a deed conveying land to the com- pany for its track, to fence the same, will not add to defendant's liability under the statute. Chicago &* A. R, Co. v. Saunders, 85 ///. 288. Where an employ6 of the company, whose duty it was to keep fences in repair, passes over the road at 4 o'c'ock p.m. on Satur- day, and finds the feices in repair, and again on Monday morning passes over the road and finds that the fence has been recently broken, and that through sut .1 breach stock got upon the track and were in- jured — held, that the company had shown reasonable diligence in keeping the fence in repair, and was not liable. Illinois C. R. Co. V. Swearingen, 47 ///. 206 - Quoted in Chicago, B. & Q. R. Co. v. K. nn'cdy, 22 111. App. 308. Where it is sought to cliarge a railroad company for killing stock that entered the track through a defect in t'.ie fence, by showing that the company had notice of the defect, an instruction \? properly refused which states that the mere fact that hands working in a gravel-pit for tht company had notice of the defect in the fence would not ANIMALS, INJUKIHS lO, I4tt. 171 bwid the company, but to he l>iii(Jing the notice must be to some person or a^ent connected with the ircMiiiiH' N, W. R. Co., 33 Wis. 640. (2) Illustrations, — A fence along a rail- road track was burned on Thursday, and on the following Sunday a horse was killed by going upon the track through the opening, it appeared that an employe of the com- pany who was charged with the duty of re- pairing fences had passed over the track twice a day between the time of the fire and the killing. Held, (i) that the company must be deemed to have had notice and a sufficient time to repair; (2) that, as its trains ran on Sunday, it could not be ex- empt on the ground that it was not lawful or right to repair the fence on Sunday. Toledo, W. &> W. R. Co. v. Cohen, 44 /nd. 444. *Seea,ite, 8-*, 128; post, Uiii, 207. Itiference of negligence from lapse of time iliiiintj which fence is in bad repair, see note, 13 A ,1. & Eng. R. Cas. 561. 172 ANIMALS, INJURIES TO, 144, 145. Where it is shown that the fence inclosing the railroad company's track had been down for more than a month, at a place where the road passed along cultivated fields, the company's agent having nutice of the de- fect, and that cattle grazed at the place, these circumstances are sufficient from which to deduce the conclusion that ihc animal got upon the track at a place where the com- pany was required to fence, and because of failure to repair after ample notice. May- field V. S/. Louts &* S. /•'. Jf. Co., 91 Mo. 296, 3.S'. W. R,p. 201. The reniuval of a fence that a railroad company is required to erect, to allow per- sons to liaul wood for the use of the co::)- pany, in the months of January and Feb- ruary, and permitting such fence to remain dowti until April loih following, is such negligence as to make the company liable for stock which go upc^n the track through such opening. Mc/)o7Utll v. A'ew Vopk C. R. Co., 37 Barb. (N. )'.) 195.— FOLLOWING Corwin v. New York & E. R. Co., 13 N. Y. 42. The fact that an insufficient fence has, for several weeks, been maintained by a railroad along its right of way, is sufficient to justify a jury in finding it guilty of negligence ; and the fact that the plaintiff's stock had, dur- ing all such time, been kept in a field ad- joining the right of way, without escaping through such fence and passing upon the railroad track, is not sufficient to excuse the company from such neglect. Baltimore (S^* O. K. Co. v. Schults, 22 Am. &^ Eug. K. Cas. 579, 23 / Eng. R. Cas. 555, 73 Mo. 576.— Applied in King v. Chicago, R. I. & P. R. Co.. 90 Mo. 520. Followed in Heaston v. Wabash & St. L. & P. R. Co., 18 Mo. App. 403; Vinyard v. St. Louis, I. M. & S. R. Co.. 80 Mo. 92; Foster v. St. Louis, f. M. & S. R. Co., 44 Mo. App. II. Quoted in Morris v. Han- nibal & St. J. R. Co.. 19 Am. & Eng. R. Cas. 666, 79 Mo. 367 ; Walthers v. Mis- souri Pac. R. Co., 78 Mo. 617; Young 7/, Hannibal & St. J. R. Co., 82 Mo. 427.— ANIMALS, INJURIES TO, 14«. 173 WhuUr V. Erie K. Co., 2 T. &* C. (.V. K.) 634. Iniiiiinapolis &* Sf. L. A'. Co. v. //«//, 88 ///. 368. Illinois C. R. Co. v. Sweariti^en, 47 ///. 306. Brentner v. Chicago, M. &* St. /'. A'. Co., 7 Am. &> Eng. K. Cas. 574. 58 Iowa 625, 12 A'. IV. Hep. 615.— Following Aylcs- wortli V. Chicugo, K. I. & P. R. Co., 30 Iowa 459; Perry V. Des Moiiics S. VV. R. Co., 36 lowu I03 ; Davis v. Chicago, R. I. fi V. R. Co., 40 Iowa 393 ; McCoriiiick v. Chicago, R. 1. & P. R, Co., 41 Iowa 193. If a railroad company fails to maintain in a proper condition a fence which it is required to maintain, it is liable to the ad- joining proprietor for injury to stock going upon the track where it is not securely fenced, although the fence has been kept up by said adjoining proprietor without any contract with the company. Tiie excuse that a reasonable time has not elapsed to repair the fence must be pleaded or proved. Jeffersonville, M. &* I. R. Co. v. Sullivan, 38 Ind. 262, \o Am. Ry. Rip. 279. Where a portion of the fence of a railroad was burned, and one week thereafter cattle entered upon the track through the open- ing so caused, and were injured by a passing \.r'i.\n—ktld, that the delay in repairing the fence was unreasonably long, and that the railroad company was liable for the injury to the cattle. Cleveland, C, C. &* I. R. Co. V. Brown, 45 Ind. 90.— Distinguishing To- ledo & W. R. Co. V. Daniels, 21 Ind. 256; Indianapolis, P. & C. R. Co. v. Truitt 34 Ind. 162. Where a railway track, roadbed, and bridges for fifty miles have been washed away and twelve miles of fences destroyed, a jury is authorized to find that the company did not exert ordinary diligence in repairing the fence where the gap at the point where the cattle were killed could have been closed by the sectionmen in an hour, it being also shown that sectionmen were at that point and drove cattle away from the track. Peet V. Chicago, M. 6- St. P. R. Co., (Iowa) SSN. W. Rep. 508. The duty of a railroad company to main- tain its fences already built is discharged by the exercise of reasonable care and dili- gence, and they may be temporarily pros- trate or broken without a breach of such duty. But neglect to repair a breach that has been patent for two weeks is presump- tively negligence. Varco v. Chicago, M. &* St. P. R. Co., 1 1 Am. 6- Ef^. R. Cas. 419, 30 Minn. 18, 13 A'. W. Rep. 931. (3) Company not liafile.— Where a com- pany has securely fenced its track, and a small portion of the fence is afterward destroyed by fire, which is repaired within a reasonable time, the company is not liable for stock that went upon the track and were injured while the fence remained open. Indian- apolis, P. ir- C. R. Co. v. Truitt, 24 Ind. 162. Where a railroad is kept securely f( need by the company, and the fence is destroyed by unavoidable accident, as by fire, and is re- paired by I he company within u reasonable time after its destruction, but before it is so repaired stock get upon the track and are injured, the company will not be liable therefor. Toledo, is* II '. R. Co. v. Daniels, 21 Ind. 256.— Appro VK.I> in Indianapolis, P. & C. R. Co. 7'. Truitt, 24 Ind. 163. Distin- guished IN Cleveland, C, C. & I. R. Co. v. Brown, 45 Ind. 90. A railroad company which has construct- ed proper side-fences, as required by Mich. Laws, 1873, 538, §15, is not liable for dam- ages for the destruction by passing train, without any neglect or wilfulness of the agents or servants of the company, of horses that escaped from an adjoining lot and got upon the track through a breach in the fence recently caused by a heavy wind in the night-time, in the absence of any evi- dence showing that the company had been negligent in regard either to the strength of the fence or to the length of time taken tore- store it. Robinson v. Grand Trunk R. Co., 32 Mich. 323. As a rule, a railroad company is not li- able for stock that go upon the track through a defective fence, unless it has had a reasonable time in which to repair after it has discovered, or might, with reasonable diligence, have discovered, that the fence is out of repair; but this rule has no applica- tion where it appears that there was no fence at all.* Morris v. Hannibal 6r* St. J. R, Co., 19 Am. St* Eng. R. Cas. 666, 79 Mo. 367. — Quoting Clardy v. St. Louis, I. M. & S. R. Co.. 73 Mo. 576.— Followed in Heaston v. Wabash. St. L. & P. R. Co., 18 Mo. App. 403- 146. Temporary defects, etc., in fences.— A railroad company, wishing to build a small bridge, removed a small piece of fence and left gaps through which, sub- sequent to the promise of defendant's em- ploy6s to repair the gaps, the plaintifT'shogs * See ante, 1 44. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 mm 140 2.5 2.2 U 11.6 7] '/ Photographic Sciences Corporation S •N? \ V s> 4^ ^ \. ^f\\ 23 WIST MAIN STRIfT WltSTM,N.Y. MSM (716)S7a-4S03 '^ / % 174 ANIMALS, INJURIES TO, 147-14J>. escaped, and were killed in the night by the cars. Held, the company was responsible. Iiidiaiuipu/is&^C. K.Co. v. Logan, ig//iif. 294. The New York act of 1850, ch. 140, § 44, as amended in 1854, ch. 282, § 8, relating to fences, does not make railroad companies absolutely liable as insurers of stock that may go upon the track through a temporary defect in a fence ; but their liability under the statute is a question of negligence. Murray v. New York C. K. Co., 3 Abk App. /;<;■. (N. Y.) 339, 4 Keyes 274.-DIS. T1N(JUISHKU IN McGuire v. Ogdensbuig & L. C. R. Co., 44 N. Y. S. R. 348, 63 Hun. 632, 18 N. Y. Supp. 313. See also Wlwelcr V. Eric K. Co., 2 T. &- C. {N. !'.> 63^. I)i- dianapoUs &" St. L. A'. Co. v. //,?//, 88 ///. 368, Illinois C. R. Co. v. Swearingen, 47 III. 206. A railroad company is liable for killing a cow where she is sent by the owner to a lot adjoining a railroad track in charge of a small boy, who leaves her for a short time, and she goes upon the track where the rail- road fence is down temporarily for the pur- pose of allowing the company to make cer- tain improvements. Brady \. Rensselaer &^ S. R. Co., I Hti?i. {N. Y.) 378, 3 T.&'C. 537.— Quoting Bradley v. Buffalo, N. Y. & E. R. Co., 34 N. Y. 427. Reviewing Cor- win V. New York & E. R. Co., 13 N. Y. 42. 147. Leaviiif? opciiint^ij iu fence with coiLseut of landowner. — Where the evidence showed that open spaces had been left in a fence inclosing a track by con- sent of the landowner, for the purpose of allowing the passing through of his cat- tle, the company is held to have had the right to run its trains as if no such privilege had b(^en granted to the i<. .:'iwner, and subject only to the duty on the ^.'xrt of the company to keep a look out for ? id avoid injuring the cattle after discovering them to be in danger. Whittier v. Chicago, M. Sf St. P. R. Co., 26 Minn. 484, 5 N. W. Rep. 372.— Approved in Atchison, T. & S. F. R. Co. V. Walton, 3 N. Mex. 319. 1^8. Removal of fence by land- owner.* — M., the owner of land adjoining a railway, put down the fence separating it from the track, with the assent of the railway company, in order to supply it with wood cut upon the land. Ke then sold the land to one C. , stipulating that he should retain one or two acres on which this wood was piled. C. afterwards leased the east half of the land •See/w/, 160, 157. to the plaintiff, containing part of the land retained by M., and C. allowed the plaintitTs cattle to run on the west half, there being no line fence between the two halves. The plaintiflE's cattle escaped from this west half onto the railway where the fence had been removed by M., and were killed. Held, that the plaintiff could not recover, for the facts showed a license by implication from C. to leave the fence as it was, and the plaintiff, -ts C.'s licensee, could have no better right Muai C* Held, also, that as the fence was originally removed with the assent of the ^a.'ies interested in it, the defendant could I' h liable without a notice to erect it f > yme one duly authorized, of which i- . . was no evidence. Kilmer v. Great Wesf.'.rn R. Co., 35 I/. C. Q. li. 595. 149. Uiilc where landowner is bound to maintain fence.f— Where a company, by sparks from an engine, burns a fence between its track and adjoining lands, which it was the duly of the adjoining land- owner to keep up, a failure on the part of the company to rebuild will not make it liable for stock killed that go upon the track through the burned portion of the fence. Terry v. New York C. R. Co., 22 Barb. {N. Y.) 574. —Applying Talmadge v. Rensselaer & S. R. Co., 13 Barb. 493; Marsh v. New York & E. R. Co., 14 Barb. 364. Reviewing Tonawanda R. Co. v. Munger, 5 Den. 255, 4 N. Y. 349; Spencer v. Utica & S. R. Co., 5 Barb. 337 ; Brand v. Troy & S. R. Co., 8 Barb. 368; Clark v. Syracuse & U. R. Co., II Barb. 112; Haring 7/. New York and E. R. Co., 13 Barb. 9; Willett v. RufTalo & R. R. Co., 14 Barb. 585. — Nor followed in Washington v. Baltimore & O. R. Co., 17 W. Va., 190. An adjoining landowner, under an agree- ment with a company, contracted to erect and n-.aintain a proper fence between his lands and the track, and after the fence had been erected some time the company, for some purpose connected with its business, took the fence down and put it up again dif- ferent from its original construction, which was done without objection from the land- owner. Afterward he permitted the fence to get out of repair, and his cattle went over it and were killed on the track. It appeared that the company had made occasional re- pairs to the fence. Held, that by hisacqui- * See ante, 04. + See ante, 88, 8», 139; tost, 15«, 170, 175, 300, 393, i»23. ANIMALS, INJURIES TO, 130-132. lO escence in the act of the company in not rebuilding the fence as it was originally con- structed, he was estopped from complaining of such failure, and that he could not recover for the loss of tlie stock unless the proof showed that it was due to negligence in the manner of running the train, the burden to show which was upon him. Pittsburgh, C. &^ St. L. R. Co. V. Heiskdl, 1 3 Am. &* Eng. R. Cas. 555, 38 Ohio St. 666. 130. Fence destroyed or impaired by third persons.*— In the absence of negligence a railroad company is not liable if cattle go upon the track through a fence which the company has erected, but which has been broken down by third p;irties, and are killed. Walthers v. Missouri Pac. R. Co., 19 Am. &• Eng. R. Cas. 662, 78 A/o. 617. — Quoting Clardy v. St. Louis, I. M. & S. R. Co., 73 Mo. 576 ; Case v. St. Louis & S. F. R. Co., 75 Mo. 668. Where a track is inclosed by a sufficient fence, and a breach occurs therein by reason of the unlawful act of a stranger, through wiich breach stock get upon the track and are injured, in the absence of negligence on its part the company will not be liable, unless the accident happened after the lapse of a sufficient time for the company, in the exercise of reasonable diligence, to have dis- covered and repaired the breach before the injury occurred. Chicago (Sr^ A'. f-F. A'. Co. V. Barrie, 55 ///. 226, 2 Am. Ry. Rep. 451. — Distinguished in Peoria, D. & E. R. Co. v. Aten, 43 111. App. 68. Quoted in Rockford, R. I. & St. L. R. Co. V. Connell, 67 111. 216. Where a company has caused its road to be securely fenced, and has exercised reasonable care and vigilance to keep it so, and the fence is thrown and left down by third persons, without the authority or knowledge of the company, whereby cattle stray upon the track and get killed or in- jured, before the company has notice, the company is without fault, and not liable for the stock thus killed or injured. Toledo &* W. R. Co. V. Fowler, 22 Ind. 316. 151. Defects in fences which were not required by law to be built.f— Where a statute makes it the duty of rail- road companies to fence, except where they pass through uninclosed or unimproved lands, where a fence has been erected but is allowed to get out of repair, so that stock go *See/«/, 181, 237. tSee ante, 05-107, 117, 130 ; post, 212. over it and are injured, the company is li- able, unless it shows that the land was not inclosed or improved, and '.herefore it was not required to erect and maintain fences. New Bru,.swick R. Co. v. Armstrong, 23 Nem Brun. 193. 5. Animals Trespassing, Running at Large, or Coming from Lands not Belonging to Owner.* 152. Animals trespassinj?, ;>:ener- ally. — The trespass, if any, of cattle is not a defense to any action against a railroad company for their death, where they enter upon the road from the owner's premises by reason of the company's failure to fence its road. Holland v. West End N. G. R. Co., 16 Mo. App. 172. Where a railroad company neglects to build fences as required by statute, they will be liable for stock injured or killed, without reference to the right of the cattle to be where they could go upon the track, or whether the trains doing the injury were be- ing operated with proper care or not. Mc- Call V. Chamberlain, 13 Wis. 637.— APPLY- ING Fawcettz-. York & N. M. R. Co., 16 Q. B. 610, 71 E. C. L. 609. Reviewing Corwin V. New York & E, R. Co., 13 N. Y. 42.--D1S- tinguished in Pitzner v. Shinnick, 39 Wis. 129. The fact that a horse escapes from the control of its owner, and passes from his land adjoining a railroad through an open gate, at his private crossing, onto the rail- road tracks, does not make the horse a tres- passer, or preclude the maintenance of an action against the railroad corporation for causing the horse's death. Ta/t v. A'etv York, P. 6- B. R. Co., 157 Mass. 297, 32 N. E. Rep. 168. Under the provisions of section i of the Nebraska act of 1867 (Comp. St. 1885, 464), where a railroad corporal oii neglects to maintain fences and cattle- uards along its road, and horses get the .eon and are in- jured or killed by the engines or trains running on the road, the railroad company is liable to the owner in damages therefor, and the negligence of the owner in allow- ing the horses to escape from him will constitute no defense to the action. Bur- lington Sr' M. R. R. Co. V. Webb, 22 Am. &* Eng. R. Cas. 617, 18 Ne b. 215.— Quoting ^* See (.M/*-, 4;M»o\/>w/,~187, 205, 20«, 243-270, .337-375, 376, 300, 411, 491, 503. '4 176 ANIMALS, INJURIES TO, 153. •1 Corwin v. New York & E. R. Co., 13 N. Y. 42. The mere fact that an animal which was killed or injured by a train of cars was a trespasser on defendant's road, or that it passed thereon from land not belonging to the plaintiff, will not defeat a recovery. Cu.ry V. Chicago &> N. W. Jf. Co., 43 IV/s. 665. 153. trespassing upon lauds adjoining track.* — (i) General rule stat- ^r/.f— The fact that plaintiff's horses entered the close of another through an insuffi- cient fence upon the highway, and passed thence upon defendant's road, could not affect his right of recovery. Chicago (S-» A'. W. R. Co. V. Harris, 54 ///. 528. The company is liable, althougii the plaintiff was not an occupant or proprietor of the adjoining lands. Ne%v Albany J>> a. R. Co. V. Aston, 13 Ind. 545. In an action for injuries to cattle on a track which the company has failed to fence, it is no defense that the cattle were trespassers upon the land whence they passed to the track. Gillatn v. Sioux City 6- St. P. R. Co., 26 Minn. 268, 3 X. IV. Rep. 353.— Followed in Watler v. Chi- cago, M. & St. P. R. Co., 13 Am. & Eng. R. Cas. 582, 31 Minn. 91. Where the plaintiff's horse was at large, in the night-time, on the premises of an- other, in violation of the night h'^rd law, which was then in force in the county, and was killed by the defendants' train, without fault or negligence of defendant, at a point where it had the right to fence but did not — held, that defendant was liable, under § 1289 of the Kansas Code, for the value of the horse, in ihe absence of any showing that the plaintiff, by any wilful act, contrib- uted to ti;e injury. Krebs v. Minneapolis 6- St. L. R. Co. , 20 Am. •Sr' Eng. R. Cas. 478, 64 Iowa 670, 21 N. W. Rep. 131.— DlST'N- GUISHING Pittsburgh, F. W. & C. R. Co. v. Methven, 21 Ohio St. 586; Kansas Pac. R. Co. V. Landis, 24 Kan. 406. Following Spence v. Chicago & N. W. R. Co., 25 Iowa 139. — Followed in Lee v. Minneapolis & St. L. R. Co.,66 Iowa 131. Reviewed in Timins v. Chicago, R. I. & P. R. Co., 31 Am. & Eng. R. Cas. 541, 72 Iowa 94, 33 N. W. Rep. 379- Railroad fence laws are in the nature of a * Sac post, 166. t Injury to cattle trespassing on adjoining land, see note, 19 Am. & Eng. R. Cas. 661. police regulation, intended to protect do- mestic animals generally, and to promote the security of persons and property pass- ing over the road, and are not designed merely for the benefit of the adjoining land- owner. The company is, therefore, under a general obligation to the public; and, in an action under the statute, the mere fact that the animals were trespassers upon the adjoining land, from which they went onto the unfenced railroad track and were killed, will not, where they escaped from the plain- tiff's enclosure without his fault, defeat a recovery. Missouri Pac. R. Co. v. Roads, 23 Atn. &> Eng. . .. ms. 165, 33 Kan. 640, 7 Pac. Rep. 213. Under the New York general railroad act rf 1850, requiring railroads to erect and n.aintain fences along their tracks, a failure to do so will render them liable for stock killed or injured, regardless of the fact whether the stock were lawfully on the ad- joining lands or not. Duffy v. Ne7v York F. R, Co., 12 Gray (Mass.) 55.— Distinguished IN Eames v. Boston & W. R. Co., 14 Allen (Mass.) 151 ; Eames t/. Salem & L. R. Co., 98 Mass. 560. (3) In Missouri. — The fact that the owner of an animal injured upon a railroad track was not the owner or occupant of the adjoining field, from which the animal came upon the track, will not affect the liability of the company on the ground of its failure to fence its road, unless the animal was a trespasser on the field from which it came. Brandenburg v. St. Louis &^ S. F. R. Co. , 44 Mo. App. 224.— Applying Ferris v. St. Louis & H. R. Co., 30 Mo. App. 122; John- son V. Missouri Pac. R. Co., 80 Mo., 620. Where the owner of a mare killed by I D. R. D.— 12. the defendant's train was not an adjoin- ing landowner or a next adjoining owner, and where the animal had strayed from the owner's field, four miles from the rail- road, and passed, as a trespasser, over the lands of several intervening proprietors before reaching the railroad, there can be no recovery by such owner against the com- pany on the ground of its failure to main- tain a sufficient fence along the track, under the provisions of Revised Statutes, section 809. Ferris v. ,'^t. Louis &> H. R. Co., 30 Mo. App., 122. — Applied in Brandenburg V. St. Louis & S. F. R. Co., 44 Mo. App, 224. Distinguished in Board v. St. Louis, I. M. & S. R. Co., 36 Mo. App. 151 ; Young V. Kansas City, Ft. S. & M. R. Co., 39 Mo. App. 52 ; Duke v. Kansas City, Ft. S. & M. R. Co., 39 Mo. App. 105; Kinion v. Kansas City. Ft. S. & M. R. Co., 39 Mo. App. 382 ; Kinion v. Kansas City, Ft. S. & M. R. Co., 39 Mo. App. 574; Jackson v. St. Louis, I. M. & S. R. Co., 43 Mo. App. 324. The statute requires railroads to \ fenced for the benefit of the adjoinin^ proprietor, and if his field has, on its three sides, a lawful fence, it cannot avail a stranger, whose stock are injured, that the railroad track is defectively fenced from the field, or not fenced at all, unless he shows thai his stock were in an adjoining field by some agreement with the owner thereof. Hendrix v. St. Joseph &• St. L. R. Co., 38 Mo. App. 520. The owner of cattle trespassing on lands adjoining a railroad cannot recover of the railroad company by showing that the cattle got upon the track owing to the insufficiency of the railroad fence, where it appears that the other three sides of the land were sur- rounded by a lawful fence. Smith v. St. Louis, I. M. &- S. R. Co., 25 Mo. App. 113. — Following Carpenter z/. St. Louis, I. M. & S. R. Co., 25 Mo. App. no. — Carpenter V. St. Louis, /. M. &- S. R. Co., 2S Mo. App. no.— Followed in Smith v. St. Louis, I. M. & S. R. Co., 25 Mo. App. 113. In such actions for double damages under the Missouri statutes the plaintifl must show that the lands of the adjoining owner were not inclosed by lawful fences. /Jar- rington v. Chicago, R. I. &■* P. R. Co., 71 Mo. 384.— Adhering to Berry v. St. Louis, S. & L. R. R. Co., 65 Mo. 172.— Approved IN Peddicord v. Missouri Pac. R. Co., 85 Mo 160. Where, in an action under the Missouri If "i" '4 ■*" ANIMALS, INJURIES TO, 153. double damage law, Rev. St. § 809, for the value of a bull killed by a train, the evidence shows that the bull was in a pasture which did not adjoin the railroad, and escaped therefrom into the pasture of one S., and thciice onto the railroad track, there can be no recovery without proof also that the fence through which the bull escaped into the pasture of S. was a lawful fence. Peddi- cordy. Missouri Pac. K. Co., 85 Mo. 160. — Approving Harrington v. Chicago, R. I. & P. R. Co., 71 Mo. 384.— Quoting B^ry v. St. Louis, S. & L. R. R. Co., 65 Mo. 172. Rkviewed in Emmerson v. St. Louis & H. R. Co., 35 Mo. A pp. 621. (4) In Nevada, New Hampshire, and Ver mont. — In an action for killing a domestic animal, which has strayed upon its track from land not belonging to its owner, it is incumbent on the plaintiff to show negli- gence on the part of the company. Walsh V. Virginia <3>* T. R. Co., 8 Nev. iio. A railroad corporation is not liable for damages done to cattle unlawfully in a pas- ture adjoining, and escaping thence upon its road through defective fences which the railroad is bound to keep in repair. Giles w. Boston &• M. R. Co., 55 N. H. 552.— Fol- lowing Cornwall v. Sullivan R. Co., 28 N. H. i6i. Reviewing Midland R. Co. v. Daykin, 17 C. B. 126, 33 Eng. L. & Eq. 193. Where a company owned a piece of land adjoining their railway, and the plain- tiff owned a track adjoining the company's piece, and there was no fence between the plaintiff's land and the land of the cor- poration, and no steps had been taken to have any division of fence between them, and there was no fence between the com- pany's piece of land and the railway, and the plaintiff turned his sheep upon his own land, from which they strayed upon the land of the corporation, and thence upon the railroad track and were killed — held, that the plaintiff could not sustain an action against the company for the loss of the slieep. Cornwall v. Sullivan R. Co., 28 A''. //. 161.— Followed in Giles v. Boston & M. R. Co., 55 N. H. 552. Although railroad companies are required to fence, yet a failure to fence will not render them liable for injuries to stock that unlawfully go on the adjoining close; but common care must always be used. Morse v. Rutland &* B. R. Co., 27 Vt. 49.— Following Jackson v. Rutland & B. R. Co., 25 Vt. 150. An owner of stock killed while trespass- ing on lands adjoining a track cannot re- cover from the company on proof that the company has failed to fence, as required by statute, but only on proof that they were killed through the negligence of those oper- ating the train. Jackson v. Rutland &* B. R. Co., 25 Vt. 150. — Approved in Berry z/. St. Louis, S. & L. R. R. Co., 65 Mo. 1 72. Fol- lowed IN Morse v. Rutland & B. R. Co., 27 Vt. 49. Quoted in Illinois C. R. Co. v. Houghton, 126 111. 233, 18 N. E. Rep. 301, i L. R. A. 213, 21 Ohio L. J. 310; Chicago, S. F. & C. R. Co. V. McGrew, 104 Mo. 282; Chapin v. Sullivan R. Co., 39 N. H. 53, 564; Troy & B. R. Co. v. Potter, 42 Vt. 265. (5) In Canada. — Where an owner of sf : allows them to pasture on lands adjoining 1.1s, which he does not own or occupy, and which also adjoin a ra'lroad track, he cannot com- plain if the stork pass from such lands to the track by reason of a failure on the part of the company to fence, and are injured. Conway v. Canadian Pac. R. Co., 26 Am. &* Eng. R. Cas. 576, 12 Ont. App. 708; affirm- ing 19 Am. &* Eng. R. Cas. 650, 7 Ont. 673. Plaintiff, by permission of one H., put his horses into a pasture-field of H. adjoining defendant's railway, and the evidence went to show that they escaped thence into an adjoining field occupied by one J. and thence on to the track, where they were killed by a train passing. The plaintiff sued, alleging that the horses escaped from the field where they were pasturing by reason of defects in the railway fences. Held, that he could not recover, for the horses were not in the field from which they escaped by the owner's per- mission. Wilson V. Northern R. Co., 28 U, C. B. Q. 274. The declaration averred that it was de- fendants' duty to keep up sufficient fences along their line of railway, and that, by the neglect of such duty, the plaintiff's mare, which was lawfully depasturing on the ad- joining land, got upon the track and was killed. No negligence was charged against defendants in the management of their train. It was proved that the mare had es- caped from her stable on another farm and was trespassing on the lot from which she got upon the railway. Held, that the plain- tiff could not recover, the defendants being bound to fence only as against the owner of the adjoining lands. Gillis v. Great Western R. Co., 12 U. C. Q. B. 427.— Following Dolrey v. Ontario, S. & H. R. U. Co., 11 U. ANIMALS, INJURIES TO, 1."*, I.-..1. 179 C. Q. B. 600.— Applied in McDowell v. Great Western R. Co., 5 U. C. C. P. 130. Approved in Chisholm v. Great Western R. Co., 10 U. C. C. P. 324. Where the plaintiff's cow, trespassing on A.'s close, strayed upon the defendants' railway adjoinintj, through a defect in the fence, which, ii certain cases, as against A., tiie defendants were bound to make and maintain — /le'ii, on demurrer to the declara- tion, that the plaintiff could not recover; first, because both at common law and by their act of incorporation the obligation to make and maintain fences would apply only as against the owners of the adjoining close ; and, second, because it was not clearly averred either that the owner of the land adjoining had requested the defendants to enclose their road or that they had thought proper to do so, on one of which facts the obligation is made by the statute to depend. no/rey v. Ontario, S. Qr» H. R. U. Co., 1 1 U. C. Q. R. 600. — Applied in McDowell v. Great Western R. Co., 5 U. C. C. P. 130. Followed in Gillis v. Great Western R. Co., 12 U. C.^. B. 427. 154. Animals comiii;; from an- other's lands, where they were not trespassing.*— Plaintiff was pasturing his horses in the field of a third party which adjoined a railroad track, and which was in the possession of a tenant, such third party having agreed with the company to main- tair^ a fence between his field and the track. Held, that plaintiff could maintain an action against the company for killing his horses, which escaped from the field to the track by reason of a defective fence. Warren v. Keokuk 6f D. M. R. Co., 41 lo^va 484. Where a railroad runs through an inclosed field in which a cow was killed, and the owner of the cow had permission of the owner of the inclosed field to pasture his cow therein, the railroad company is liable if its road was not inclosed with a good and lawful fence to prevent animals from being on such road. St. Louis &» S. F. R. Co. v. Dudgeon, 28 Kan. 283. — Distinguishing Berry v. St. Louis, S. & L. R. R. Co., 65 Mo. 172.— Followed in St. Louis & S. F. K. Co. V. Mossman, 29 Kan. 694. Plaintiff had the privilege of leading his horse along a path and stabling him on the lands of another, which lands adjoined a railroad track. The horse escaped and ran * See ante, «4, 1.39 ; fast, ,31«, over the land, but not on the path, to the track, and was killed. Held, that he was not unlawfully on the land of another in that sense that would defeat a recovery. Sawyer \. Vermont &*M. R. Co., 105 Mass. 196, 2 Am. Ry. Rep. 459. A railroad cannot, in an action for killing stock, avail itself of the fact that the stock came upon its right of way over the prem- ises of an adjoining proprietor, unless such premises were inclosed by a lawful fence. Dean v. Omaha Eng. R. Cas. 166, 90 Pa. St. 454. The plaintiff's calves escaped from his pasture into an adjoining highway, which was intersected by a railroad, in land not owned by htm, and they passed along the highway in the direction of the plaintiff's residence, until they reached the place where it was thus intersected, and thence went upon the track through " gaps, open- ings, and defective places" in the fences and cattle-guards there constructed, and were killed by the defend., nt's engi nes. Held, that the corporation was not liable. IVool- son V. Northern R. Co., 19 A^. H. 267. — Re- viewed IN Towns V. Cheshire R. Co.. 21 N. H. 363; Chapin v. Sullivan R. Co., 39 N. H. 53, 564. Where sheep escnpe from the owner's premises to a highway, and thence to a rail- road track, and are killed, the company will not be liable on account of defects in its fence, as the sheep were trespassing on the highway. Daniels v. Grand Trunk R. Co., 22 Am. &• Eng. R. Cas. 609, 1 1 Ont. App. 471.— Reviewing Ricketts z/. East & W. I. D. & B. J. R. Co., 12 C. B. 160. 156. Rule where it wns land- owner's duty to fence.*— Where stock of a third person get upon the track of a railroad company by reason of fences not being built by the landowner, where the cost thereof has been estimated as part of the consideration of the right of way, the company is not, under § 3329, Rev. St. Ohio, in the absence of negligence in run- ning its trains, liable to the owner for injury to them. The duty of the company is, in such case, to use ordinary care and pru- dence to avoid injuring the animals. Balti- more Sf O. R. Co. V. Wood, 45 Am. &* Eng. R. Cas. 464, 47 Ohio St. 431, 24 N. E. Rep. 1077.— Distinguishing Gill v. Atlantic & G. W. R. Co., 27 Ohio St. 240; Pittsburgh. C. & St. L. R. Co. V. Allen, 40 Ohio St. 206. Railroad companies are liable for stock killed on the track, whether it belongs to abutting owners or not; so a person who is not an abutting owner may recover from the company, where his stock strays upon a field which does abut the track, and thence onto the track by reason of a defect in the fence, and the liability of the company is not affected by showing that it has a con- tract by which the owner of such abutting field had agreed to fence between the field and the track. Pittsburgh, C. 6- St. L. R. Co. V. Allen, 19 Am. &* Eng. R. Cas. 657, 40 Ohio St. 206. — Distinguishing Cincinnati, H. & D. R. Co. V. Waterson, 4 Ohio St. 424. * See <>n/» N. IV. R. Co., 25 Iowa 139. — Fol- lowing Corwin v. New York & E. R. Co., 13 N. Y. 42 ; Shepherd v. Buffalo, N. Y. & E. R. Co., 35 N. Y. 641 ; Bradley v. Buffalo, N. Y. & E. R. Co., 34 N. Y, 427.— Dis- tinguished IN Windso-- V. Hannibal & St. J. R. Co., 45 Mo. App. 123. FOLLOWKD IN Krebs v. Minneapolis & St. L. R. Co., 20 Am. & Eng. R. Cas. 478, 64 Iowa 670; Stewart 7/. Chicago & N. W. R.Co., 27 Iowa 282; Fritz V. Milwa. kee & St. P. R. Co.. 34 • See ante, 113. t See ante, 53-60 ; post, 169, 187, 205, 243-276,288. Iowa 337 ; Stewart v. Burlington & M. R. R. Co., 32 Iowa 561. Reviewed in Lee v. Minneapolis & St. L. R. Co., 66 Iowa 131 ; Bowman v. Chicago «S A. R. Co., 85 Mo. 533; Boyle V. Missouri Pac. R. Co., 21 Mo. App. 416; Burlington & M. R. R.Co. v. Brink- man, II Am. & Eng. R. Cas. 438, 14 Neb. 70. Where a statute makes railroad companies liable for injuries to live stock lunning at large, where such injuries result from a fail- ure on the part of the company to fence its track, a company will be liable for killing sheep which go upon the track through a defective fence. Hinman v. Chicago, R. I. &- P. R. Co., 28 /o7i'a4gi. — Distinguished in Grove v. Burlington, C. R. & N. R. Co., 75 Iowa 163, 39 N. W. Rep. 248. Followed in Swift V. North Mo. R. Co., 29 Iowa 243; Hammond v. Chicago & N. W. R. Co., 43 Iowa 168. (Quoted in Smith 7/. Chicago, R. I. & P. R. Co., 34 Iowa 96. A team of horses which are harnessed to a wagon, and which have escaped from the control of their owner, are included under the term " live stock running at large," as used in Iowa Code, § 1289; and a railway com- pany whose train injures a team so running at large, at a place where it has the right to fence its track, is liable to the owner. /«- man v. Chicago, M. &^ St. P. R. Co., 60 Iowa 459, 15 N. IV. Rep. 286.— Reviewing Welsh V. Chicago, B. & Q. R. Co., 53 Iowa 632. (2) In h'ansas. — Under the Kansas statute making railroad companies liable for every animal killed in the operation of the roads, except where the road is inclosed with a law- ful fence, the company will be liable for the killing of a hog which is running at large in violation of the law. Missouri Pac. R. Co. v. Bradshaw, 33 Kan. 533, 6 Pac. Rep. 917. — Followed in Missouri Pac. R. Qo.v. Roads, 23 Am. & Eng. R. Cas. 165, 33 Kan. 640 ; Missouri Pac. R. Co. v. Johnson, 35 Kan. 58. A railroad company is liable for killing stock that stray from the owner's lands to a railroad track which is unfenced, though the killing be where the herd law is in force, which prohibits cattle from running at large. Jftchison, T. &* S. F. R. Co. v. Riggs, 1 5 Am. &* Eng. R. Cas. 531, 31 Kan. 622, 3 Pac. Rep. 305.— Distinguishing Central Branch R. Co. V. Lea, 20 Kan. 353 ; Kansas Pac. R. Co. V. Landis, 24 Kan. 406; Union Pac. R. Co. 7K Dyche, 28 Kan. 200 ; St. Louis & S. F. R. Co. V. Mossman, 30 Kan. 336. 182 ANIMALS, INJUKIliS TO, lo». * An owner of stock wIutc llic. lurd law is in force, prcvcntiiii; calllc from runniiij; at larfjc, is only rcquirL'd to use reasonable precautions to keep his cattle contined, and where after this they break away and j^o upon an unfenced railroad track and are killed, tlie company is liable. A'li/isds Piw. Ji. Co. V. \l'/^,^ins, 24 h'au. 588.— Foi.l.oWKU IN Missouri Pac. K. Co.?', Johnson, 35 Kan. 58. (3) In A'ebraskiJ. — Under the Nebraska statute, making it the duty for companies to fence their tracks against stock running at large, a failure to do so will render the com- pany liable for all stock injured or killed. Fremont, E. &^ M. V. A\ Co. v. Lawfi, 5 Aw. &* Enj^. A\ Cds. 367, II AV^. 592. Under the act of June 20, 1867, a railroad company is liable for stock killed upon its track while running at large in the night- time at a point where the company was re- quired but failed to fence its track, notwith- standing stock are prohibited by statute from running at large in the night-time, Bur/ent;- ton 5* M. R. li. Co. V. lirinkman, 1 1 Am. &* Eng. R. Cas. 438, 14 Neb. 70, 15 N. IV. Rep. 197. — Reviewing Spencer 7/. Chicago & N. W. R. Co., 25 Iowa 139; Corwin?'. New York & E. R. Co., 13 N. Y. 42 i Fawcett v. York & N. M. R. Co., 2 Eng. Law & Eq. 289. Quoting Kansas Pac. R. Co. 7>. Landis, 24 Kan. 406. Distinguishing Central Ohio R. Co. V. Lawrence, 13 Ohio St. 66; Pitts- burgh, Ft. W. & C. R. Co. V. Methven, 21 Ohio St. 586. Referring to Dayton & M. R. Co. 7'. Miami County Infirmary, 6 Cent. L. J. 436. — Followed in Burlington & M. R. R, Co. V. Franzen, 15 Am. & Eng. R. Cas. 530, 1 5 Neb. 365 ; Chicago, B. & Q. R. Co. v. Sims, 17 Neb. 691.— C/ztcago, B.&'Q. R. Co. V. Sims, 17 Neb. 691, 24 A^. W. Rep. 388.— Following Burlington & M. R. R. Co, v, Brinkman, 14 Neb. 70. In an action for killing, by means of an engine and train, certain hogs of the plain- tiff, at a point on its line where said com- pany had failed to comply with the law requiring it to fence its track, etc., it was stipulated that the hogs were killed by a passing train of defendant at a point on its road not within the limits of any town, city, or village, and at a point where said road was not fenced on either side ; that said hogs had escaped from the inclosure of the plain- tiff, and were at large without the actual fault of the plaintiff, in the day-time, at the time tliey were killed, but that they were killed without any negligence on the part of said defendant and its agents or employes other than what may be implied from the neglect to fence the line of its road. IleiU. that a finding and judgment for the stipu- lated value (jf the hogs for the plaintiff was correct. Union !\xc. R. Co. v. Hi}ih, 14 Ned. 14, 14 A'. \V. Rep. 547. (4) /// New York. — Under the New York act of 1850, p. 233, making railroad com- panies liable for all the injuries to live stock that go upon the track by reason of the company failing to fence, the negligence of the owner in permitting his stock to stray upon lands of another which adjoins the track, or to run at large upon highways which lead to the track, is no defence. Cor- win V. Ne^v York &» E, R. Co., i^ N. ]'. 42. — DiSAPi'ROViNc; Marsh v. New York & E. R. Co., 14 Barb. (N. Y.) 364.— Applied in Fitch V. Buffalo, N. Y. & P. R. Co., 13 Hun (N. Y.) 668. Distinguished in Bowman 7/. Troy & B. R. Co., 37 Barb. (N. Y.) 516. Followed in Stewart 7/. Burlington & M. R. R. Co., 32 Iowa 561 ; Shepard v. Buffalo, N. Y. & E. R. Co., 35 N. Y. 641 ; Spinner v. New York C. & H. R. R. Co., 67 N. Y. 153; affirming 6 Hun 600. Reviewed in Bur- lington & M. R. R. Co. 7/. Brinkman, 1 1 Am. & Eng. R. Cas. 438, 14 Neb. 70. (5) /n Canada. — Plaintiff's horses were permitted to run at large, and went upon an unfenced track upon premises adjoining where the horses had been, without permis- sion from the occupant. They were killed at a point where the company was required by statute to fence, and no legal by-law had been passed permitting horses to run at large. HeM, that the company was not lia- ble under 53 Vict. ch. 28, § 2 D, amending the Dominion Railway act of 1888, and en- acting that " no animal allowed by law to run at large shall be held to be improperly on a place adjoining a railway merely for the reason that the owner or occupant of such place has not permitted it to be there." Duncan v. Canadian Pac. A'. Co., 21 On/. 355.— Distinguishing Davis v. Canadian Pac. R. Co., 12 Onr. A pp. 724. 159. Biiuniug -^i large on uiiiii- closed lauds.* — In Kansas, where the herd law is enforced, the owi.er of cattle that escape, without his fault, from his *Seeat$te, 100, 117. ANIMALS, INJURIKS TO, 100-l<(2. 1»3 premises over lawful fences, uiid pass ilu'ough uainclused lands, and go upon an unfenced track, may recover from the com- pany that may kill tlieni. Missouri J'ac. A'. Co. \. Johnston, 35 Kan. 58, 10 J'iu\ Kep. 103. FuLLowiNO Kansas I'ac. R. Co. v. Wiggins, 24 Kan. 588; Missouri Fac, R. Co. v. Brad- sliaw, 33 Kan. 533; Missouri Pac. R. Co. V. Roads, 33 Kan. 640. Noi following Central Branch Co. v. Lea, 20 Kan. 353. in Missouri a company is lialjle for stock killed that belong to one whose lauds do not adjoin the track, where it appears that they did not escape to the track ilirough fields which were properly fenced and did adjoin the track, but went upon the track through uninclosed lands. Young v. Kan- sas City, Ft. S. &^ M, K. Co., 39 Mo. App. 52.— Distinguishing Ferris v. St. Louis & H. R. Co., 30 Mo. App. 122.— Hoard v. St. Louis, I. M. &* a. R. Co., 36 Mo. App. 151. And all the decisions which restrict the right of recovery in such actions to cases where the animal got upon tlie track from land owned by the plaiiitifi are confined to those in which the lands adjoining the rail- way were inclosed. Board v. St. Louis, I. M. &> S. Ji. Co., 36 Mo. App. 151.— DisilN- OUISHING Ferris v. St. Louis & H. R. Co., 30 Mo. App. 122. In Missouri there can be no such thing as a trespass by cattle upon uninclosed lands, and where cattle are killed by a locomotive on a railroad running along uninclosed lands, but not at a railroad crossing, the fact that the cattle got upon the track from land adjoining that of the owner of the cattle, and upon which they had strayed, is no defence to an action against the railroad. Kaes V. Missouri Pac. Ji. Co., 6 Mo. App. 397.— Distinguishing Jackson v. Rutland & B. R. Co., 25 Vt. 150; Brooks v. New York & Erie R. Co., 13 Barb. (N. Y.) 594; Berry v. St. Louis, S. & L. R. R. Co., 65 Mo. 172.— Quoting Gorman v. Pacific R. Co., 26 Mo. 441. Reviewing Ricketts v. East & W. L D. & B. J. R. Co., 12 Eng. Law & Eq. 520. When stock get upon the track at a point where the track runs through uninclosed lands which are not fenced as required by law, proof that the land of the owner of the stock adjoins or is next adjoining to the railway is not essential. Duke v. Kansas City, Ft. S. <&* M. K. Co., 39 Mo. App. 105.— Distinguishing Ferris v. St. Louis & H. R. Co., 30 Mo. App. 122. 6. Cattle guards.* lUO. AVliure iiiUHt be coiiHtructed. — Tiie company must construct and main- tain proper cattle-guards at public crossings to keep stock oti the track. Evansville &» C. A'. Co. V. Bar bee, 74 Ind. 169. />'«/ see Chapin v. Sullivan K. Co., 39 ^V. //. 564. To keep its road " securely fenced," ac- cording to the requirements of the statute, a railroad company must construct and keep in repair sutBcient cattle-guards on each side of highways crossing its track. Pittsburgh, C. &' St. L. A'. Co. V. Fby, 55 fnd. 567, 16 Aw. Ay. Rep. 244.— Following Indianapolis, P. & C. R. Co. V. Irish, 26 Ind. 268. 101. aud where not.— Where plaintiff's contention is that his horse came upon defendant's track between the head of a switch and a cattle-guard, and the undis- puted evidence shows that placing the cattle-guard any nearer the head of the switch would endanger the lives of defend- ant's employes in the switching necessary to the transaction of station or depot business, plaintiff, under such a state of case, ought not to recover. Pearson v. Chicago. B. &• K. C. A. Co., ^^ Mo. App. 543.— Following Evansville & T. H. R. Co. v. Willis, 93 Ind. 507. — Followed in Jennings v. St. Joseph & St. L. R. Co., 37 Mo. App. 651. Prior to New Hampshire act of 1850, a company was not bound to provide cattle- guards at places where its track crossed the highway, and no action could be main- tained against it for injury to cattle which, having escaped from the close of their owner, had gone upon the track. Towns v. Cheshire A. Co., 21 N.H. 363.— Reviewing Woolson V. Northern R. Co., 19 N. H. 267. —Followed in Cornwall v. Sullivan R. Co., 28 N.H. 161.. Where a railroad track runs from a street onto a bridge it is not the duty of the com- pany to erect cattle-guards between the street and the bridge, and it will not be lia- ble for stock killed on the bridge in the ab- sence of a charge of negligence. Vander- kar v. Rensselaer &* S. R. Co., 13 Barb. {N. K) 390.— Followed in Parkers. Rens- selaer & S. R. Co., 16 Barb. (N. Y.) 315. Not followed in Brace v. New York C. R. Co.. 27 N. Y. 269. 162. Sufflcieiicy.f— A cattle-guard suf- ficient to turn ordinary cattle is sufficient. * See ante, 79, and also Cattle guards. t See «;//<-, 109-113. 184 ANIMALS, INJURIES TO, Hiii-Hia. 1 :■.'■ I: Chicago, B. &* Q. A'. Ci^. v. Jtimily, j ///. If a catilcguard be in such cuiidiliuit that stock cuii pass uvcr it fruiii a liighway onto tlic track ai tlic railroad upon wliicli it is situated, sucii road is nut " securely fenced " within tile meaning of liie statute. I't'tts- burgh, C. <3- St. L. R. Co. v. Eby, 55 Ind. 567, 16 Am. Ay. Nip. 244. — FoixowiNU Indian- apolis. P. & C. K. Co. V. Irish. 26 Ind. 268. Where, at a higluvay crossing, cattle- guards arc placed sixty feet from the bound- ary of the liighway, and it is not siiown by the railroad company that the guards, if placed at the boundary of the highway, would interfere witli ttie use of the high- way or endanger tlie safety of persons op- erating or managing the trains, or would obstruct the transaction of tlie company's business, or the discharge of iis duty to the public, it is liable, under the statute, for animals killed by its engines or cars, and which entered upon its track from the un- fenced space between the highway and the cattle-guards. That it would be difficult or expensive to inclose is no excuse. /"/. IVayne, C. &^ L, A'. Co. v. ILrbold, 23 Am, &* Eng. R. Cas. 221,99 ■^'"'- 9'' Where a company places cattle-guards 50 feet distant from a liigiiway crossing, when it appears that they might have been placed at the crossing without any inconven- ience to any one, the company will be liable for stock killed tliat go upon the track on t.ie space between tiie crossing and the cattle-guards. Loiimu/le, N. A. &^ C. R. Co. V. Porter, 20 Am. &^ Eng. R. Cas. 446, 97 Ind. 267.— Distinguishing Bellefon- taine R. Co. v. Suman. 29 Ind. 40; Jeffer- sonville. M. & I. R. Co. v. Lyon, 72 Ind. 107 ; Toledo, W. & W. R. Co. v. Howell, 38 Ind. 447 ; Wab.ish R. Co. v. Forshee, 77 Ind. 158. 103. Efl'ect of pcrruriiiaiice of'diity with respect to cattIe-{;iiardM, {gen- erally.* — When the usual and ordinary cattle-pit has been constructed as near the highway as can conveniently be done, the company is not liable, without proof of neg- ligence, for an injury happening to an ani- mal between the highway and the pit. In- dianapolis, P. &• C. R. Co. V. Iris/i, 26 Ind. 268.— Followed in Pittsburgh, C. & St. L. R. Co. V. Eby, 55 Ind. 567. Nor is the company responsible for an injury happening to an animal, under such Seea«/^ 114-131. circumstances, which strays upon the track. Indianapolis, /'. tr* C. R. Co. v. Irish, 26 Ind. 208. 104. ati atleetiiit; duty tu keep a luuk Ullt."*— Tile caiile were running at large in violation of the law. Held, that as the cattle-guard was not in an unlawful or forbidden condition, under the circum- stances, and as the cattle were at large C(;n- trary to law. and trespassers upon defend- ant's right of way. the defendant's servants, engaged in operating its trains, were not bound to anticipate such trespassing by looking ahead, or by managing a train with reference to such a contingency. Utacey v. Winona &* St. P. R. Co., 40 /////. &^ Eng. R. Cas. 217, 42 Minn. 158.43 A. W.Rep. 905. 105. Liability fur failure tu cun- Htruet, tjenerally.f— A company which, in constructing its road, omitted to make sufficient cattle guards, is liable to one whose cattle sustained damage therefrom, although the road at the time was leased to and run by another company, which, under its lease, had contracted to discharge all statutory obligations and duties imposed upon its lessor. St. Louis, W. &r' IV. R. Co. V. Curl, II Am. &^ Eng. A'. Cas, 458, 28 A'rtw. 622.— DiSTiNGUiSHFU IN Missouri Pac. R. Co. V. Morrow, 19 Am. & Eng. R. Cas. 630, 32 Kan. 217, The liability imposed on companies for not erecting a cattle-guard where the road passes through inclosed fields, by section 51 of the Missouri general railroad act of Feb- ruary 24, 1853, is not affected by tlie degree of care exercised by the company. Gorman V. Pacific R. Co., 26 Mo. 441.— Followed IN Trice v. Hannibal & St. J. R. Co, 35 Mo. 188.— Reviewed in Rodemacher v. Mil- waukee & St. P. R. Co. 41 Iowa 297. The New Hampshire act of 1850, cli. 593, § 5, provides that every railroad corporation in that state shall make and maintain all necessary cattle-guards, cai'<;/- nington <&* A". A'. Co., 61 I't. 268, . , . ///. Rifi. 284. Where a company constructs cittlc-guards on a street within the liniis of i town, they must keep them in iJi.per order, or bi. liable for stock killed by reason of such failure. Chiiago &» R. I. R. Co. w !\eid, 24 ///. 144. If, by reason of a company's neglect to repair a cattle-guard accidently put out of repair, of which it has had reasonable notice, stock enter upon its track, over such cattle-guard, from a highway, and are killed, such company is liable therefor. Pittsburgh, C. &> St. L. R.Co. V. Eby, 55 Ind. 567. Where plaintiff bases his right of re- covery for injury 10 cattle uuon a defect in the cattle guard, he must show that de- fendant had notice, or by the exercise of ordinary diligence might have had notice, of the defect, and have repaired the same before the injury was inflicted. Chubbttck v. Hannibal >S- St. J. R. Co., TJ Mo., 591. Plai riff's cattle were turned out upon the public nighway for the purpose of being driven to pasture, and while there, unat- tended, got upon the defendant's line of railway, in consequence of the defective condition of the cattle-guard at the intersec- tion of the railway with the highway, and one of the cattle was killed by a passing train. Held{\), that the clause of the rail- way act of 1880, requiring guards at cross- ings, could not be construed to render the company liable to owners of cattle unlaw- fully on the highway; (2) that the damage not having been done at the point of inter- section, plaintiff was not absolutely pre- cluded from recovering, but was subjected to the onus of showing that defendant might, by the exercise of ordinary care and diligence, have avoided the mischief, and having failed to do so, the verdict in his favor could not stand. Whitman v. Wind- sor (S- A. R. Co., 18 Nov. Sc. 271. *Stcanle, 153, 164. *Swante, 140-151. 186 ANIMALS. INJURIKS TO, 1«»-17.'J. ■n mu. P«>niiil(iii^ fsif tl«'-(;iiiinls to reiiisiiii iilhMl with !<•<> and snow.*— A railroad company pcnnitUng its caitle- guards to remain filled with snow, so that animals which have strayed upon the high- way without any negligence on the part of the owner, pass over the guards, and in con- sequence of heing tiuis upon tlie track are injured by a train, is liable for the injuries that may be sustained by the animals. Dnnnigan v. C/i/ctii^o &^ A'. IV. A". Co., 18 H'l's. 28. — Cri ricisF.iJ IN Blais 7'. Minne- apolis & St. L. R. Co., 22 Am. & Eng. R. Cas. 571, 34 Minn. 57, 57 Am. Rep. 36. Dis- TiNGUiSHKD IN Fisher v. Farmers' L, & T. Co., 21 Wis. 73. Followed in Chicago, B. & O. R. Co. 7'. Kennedy, 22 111. App.308. yuoTKD IN Indiana, B. & W. R. Co. v. Drum, 21 111. App. 331. See also on this point IVai't v. Bennington &> R. A'. Co., 61 Vt. 268, 17 AtL R,'p. 284. 7. Duty as to Farm and Private Crossings — Gates — Bars.j 170. Duty to coiLstruct farm cross- iu{;s. — Railroad companies must construct and maintain safe farm crossings, to avoid liability for injuring or killing live stock. Cotton V. Nevj York, L. E. &> IV. K. Co., 48 N. V. S. Ji. 89, 20 A. V. Supp. 347. Where the plaintiff gave a railroad cor- poration a deed of part of tlie railroad, which contained this clause: "Said corporation to fence the land and prepare a crossing with cattle-guards at the present travelled path, on a level with the track," and it ap- peared that the railroad divided the plain- tiff's pasture into two, in one of which there was no water, and that the crossing con- nected the ivio—held, that the clause in the deed was not a settlement between the parties in relation to the crossings required by law, and that the legal position of the parties was not changed thereby ; and that where the plaintiff turned his cattle loose into one of the pastures, and they were sub- sequently killed in .ittempting to cross the track, the defendants were liable for the damage, unless it should appear that it was done by accident, or by some fault of the plaintiff, W/iite v. Concord Ji. Co. . 30 A^. H. 188.J— Followed in Smith v. Eastern R. Co., 35 N. H. 356. * Sec ante, 121. {See also Farm ant) Privatf, Crossings. Swante, 88, 89, 138, 149, 166. 171. Liability for failure to iior- forni tills duty.*— It is tlie duty of rail- way companies to maintain safe farm cross- ings, and proof that plaintiff's horse caught his hoof between a rail and a plank, and was held until struck by an engine and killed, is sufficient to show a breach of this duty, and make the company liable. Cotton v. New York, L. E. &> W. E. Co., 48 A^. Y. S. R. 89, 20 A^. Y. Supp. 347. Quare, whether a company can relieve itself from liability to all persons for killing stock at a strictly private farm crossing by putting in cattle-pits and other safeguards, either instead of or in addition to gates in its fences ? Wabash K. Co. v. Williamson, 23 Am. &• Eng. R. Cas. 203, xo^Ind. 154, 3 A^. E.Rep.^\^. — Explaining Grand Rapids & I. R. Co. V. Jones, 81 Ind. 523. 172. Failure to fence at farm cross- ings.! — A company may lawfully fence across a private roadway maintained by the owner of the land for his own use for farm purposes, and, failing to do so, is liable for killing stock at such crossing. Indianapolis &* C. R. Co. V. Lowe, 29 Ind. 545.— Follow- ing Indiana C. R. Co. v. Leamon, 18 Ind. 173.— Criticised in Indianapolis, P. & C. R. Co. V. Thomas, 1 1 Am. & Eng. R. Cas. 491, 84 Ind. 194. — Indiana C. R. Co. v. Lea- mon, 1% Ind. 173. — Distinguishing Lafay- ette & I. R. Co. V. Shriner, 6 Ind. 141. — Fo' • lowed in Indianapolis & C. R. Co. v. Lowe, 29 Ind. 545.— 5a///w Eng. R. Cas. 602, 90 Ind. 380.— Overruling Indianapolis & C. R. Co. V. Adkins, 23 Ind. 340. The company was liable for the loss of a steer which went upon the track at a farm crossing 'vhich the company had failed to fence as required by law. and was killed by a passing train ; and this liability did not depend on any consideration of negligence on the part of either party. Fanning v. Long Island R. Co., 2 T. &* C. (N. Y.) 585. 173. Liability for injuries at farm crossiiigrs.— (i) Constructed dy company. — In the absence of negligence nn its part, a company is not liable for injuring animals which go upon the track at a private farm crossing, authorized by the Indiana act of April 8, 1885. Louisville, N. A. «S- C. R. Co. V. Etzler, 40 Am. Gr' Eng. R. Cas. 205, 1 19 Iftd. 39, 19 N. E. Rep. 61 5, 2! A^. E. Rep. 466. *le7^]iZ7l22n39rr65^T67^ t See ante, 95-108. ANIMALS, INJURIKS 1(), 171, !7r». 187 Where a company has no i ij;lit by fencing in its track to exclude proprietors from their private passage to tiie highway, it is not liable, under the statute, for injury to cattle. Cray v. Louisville, A'. A. >&- C. A'. Co., \f)Am. &* Eng. K. Crti. 608, 97 Ind. 126.— DisilN- GUISHING Louisville, N. A. P. R. Co., 47 loiva 76.— Distin- guished IN Bothwell V. Chicago, M. & St. P. R. Co., 7 Am. & Eng. R. Cas. 570, 59 Iowa 192. Reviewed in Timins v. Chicago, R. I. & P. R. Co., 31 Am. & Eng. R. Cas. 541, 72 Iowa 94, 33 N. W. Rep. 379. A lane leading from the highway to plain- tiff's residence crossed a track, and at each end of the lane were gates, which, with the inclosing fences, were maintained by him. His cow having been killed upon the private crossing — held, that the company was justi- fied in assuming that he preferred x\^ open crossing, and that he could not recover for the killing of the cow. Tyson v. Keokuk » D. M. R. Co.,\iIo^va 207.— Distinguishing Bartlett v. Dubuque & S. C. R. Co., 20 Iowa 188; Russell V. Hanley, 20 Iowa 219; Gray V. Burlington & M. R. R. Co., 37 Iowa 119. The plaintiff's farm was divided by the defendant's railroad, and fen< es were made along the sides of the road, and also two farm crossings, but no gates wjsre put up at the crossings. The plaintiff", with the knowl- edge that there were no gates, turned his sheep into his field, and afterwards, in at- tempting to pass over the road at one of the crossings, they were killed by the defend- ant's engine. Held, that the defendant was liable for the damages. Horn v. Atlantic &- St. L. R. Co., 35 N. H. 169.— Following White V. Concord R. Co., 30 N. H. 188. 176. Tills duty as aK'iM!tecl by con- tract.*— Where lessees, with the consent of the rai. :)ad company, made an opening in a fence, larough which the sheep strayed, and upon its agreement to replace the open- ing with a gate, it was the duty of the com- pany to put up the gate within a reasonable time, and if it failed to do so, it would be •See ante, 88, 89, 138, 139, 149. 164, 170. '^{ % H ■ri'.. "S 188 ANIMALS, INJURIES TO, 17«-17«. liable for the loss of the stock occasioned by- such neglect, precisely as if it had left the opening without the consent of the adjoin- ing owner when it constructed the fence. McCoy V. Soufhern Pac. K. Co., 56 Am. &■' Eng. K. Cas. 132, 94 Ca/. 568, 29 Pac. Rep. 1 110. It was agreed between a landowner ana a company that the latter should fix the cross- ing to a lane, and that the former should oc- cupy the lane as an open lane, as he had always done. Subsequently the corporation requested the landowner to go on and fix the crossing at the lane as he wished to have it, and he did so, but did not erect gates or bars, and the corporation paid him for it. The company was not liable for the killing of a cow belonging to a tenant having strayed upon the railroad track from the lane where she was allowed to run. Tombs V. Rochester (3~> S. R. Co., 18 Barb. (N. K.) 583. 176. Liability for defectively-con- structed gates.*— A company cannot be released from liability by ignorance of a de- fect in the gate at a farm crossing, where, by exercising reasonable care, it would have acquired knowledge of the defect. Ham- mond V. Chicago &* N. IV. R. Co., 43 /owa 168, 14 Am. Ry. Rep. 412. Nor would such liability be discharged or affected by pro(5f that plaintiff's tenant was in the habit of leaving the gate open, nor even that plaintiff himself was in the habit of doing so. Hammond v. Chicago &• N. IV. R. Co., 43 lo7iia 168, 14 Am. Ry. Rep. 412. A defect iji the gate as originally con- structed is presumed 10 be known to defend- ant, and plaintiff need not notify the com- pany of its existence, nor need he repair it, even though it could be done at small ex- pense. Hammonds. Chicago &^ JV. ]V. R. Co., 43 Iowa 168, 14 .7///. Ry. Rep.^i 2.— APPROVED IN Cleveland, C, C. & I. R. Co. 7>. Scudder, 13 Am. & Eng. R. Cas. 561, 40 Ohio St. 173. While the adjoining landowner may be held responsible for the closing of a gate constructed for his convenience and at his request, he can only be charged with such responsibility when it was so constructed that it would remain closed if so left by him. Hammond v. Chicago &^ A\ IV. R. Co., 43 /o7va 168.— Distinguishing EamesT/. Bos- ton & W. R. Co., 14 Allen (Mass.) 151. 177. Duty to keep gates in good *Stt anU, 142. coudition.— A company which erects a fence and gate along its right of way, a few feet beyond the same and upon the land of the adjoining owner, and keeps tlie same in repair for some time and then suffers them to get out of repair, whereby stock escapes through the same and strays upon the track and is killed, cannot escape liability to the owner of the stock on the ground that such fence and gate are not on its right of way, when it has given no prior notice that it will not keep up such repairs any longer. Chi- cago &* E, I, R. Co. V. Guertin, 24 Am. &• Eng. R. Cas. 385, 1 1 5 ///. 466, 4 ^V. E. Rep. 507. Where the evidence tended to show that the cow got upon the track of the company through the negligence of its servants in failing to keep a gate at a farm crossing in repair — held, that a verdict finding the com- pany liable would not be disturbed. Toledo, W. &> W. R. Co. v. Aelson, 77 III. 160. Illi- nois C. R. Co. V. McKce, 43 ///. 119. In an action brought to recover from a railroad company for injuries to a horse al- ledged to have occurred through its negli- gence, the jury may be justified in finding defendant guilty of wilful negligence in permitting the gate to remain insecure and unfit for the use it was put to, by the length of time it was maintained in that condition after notice. Louisville &' N. R. Co. v. Shel- ton, 43 ///. App. 220. The gates which a company is required to maintain at private crossings constitute a part of its fence, and the company is liable, under Iowa Code, § 1289, for injuries to stock by reason of the defective condition of such gates. Mackie v. Central R. Co., 54 Iffwa 540, 6 A". W. Rep. 723. The defendant's line of railway ran through the plaintiff's farm, and the plain- tiff's mare escaped from a field adjoining the railway through a gate opposite a farm crossing which the defendants had erected, and which was out of repair, and was killed on the railway. Held, that it was the duty of the defendants to keep the gate in repair, and that they were liable, whether they were bound to erect such farm crossing or not. Murphy v. Grand Trunk R. Co., t Ont. 619.— Reviewing Brown v. Toronto & N. R. Co., 26 U. C. C. P. 206. 178. Insecure fastenings.— (i) Com- pany liable. — A company is liable for cattle killed by reason of its failure to keep a gate furnished with secure fastenings, which it ANIMALS, INJURIES TO, 170. 189 was bound by contract to do, although the owner of the cattle, as well as the company, had known for two months that the gate fastenings were insecure, and used no effort to provide proper or sufficient fastenings. Chicago * A. K. Co. v. Barnes, 38 Am. . Kansas City, St. J. & C. B. R. Co., 27 Mo. App. 418. (2) Liability to persons other than adjacent landowners. — Where plaintiff's horses escaped from him, and he followed them until night trying to reclaim them, and the last seen of them they were going in the op- posite direction from defendant's railroad, but later passed to adjoining close, and thence through a gate at a farm crossing that the company knowingly permitted to remain open to defendant's road — held, that plaintiff's negligence was slight as compared with defendant's, making it liable for injury to the horses, though it was unlawful for stock to run at large. Chicago &* N. W. R. Co. v. Harris, 54 ///. 528.— QUOTED IN Ewingv. Chicago & A. R. Co., 72 111. 25. The maintenance of gates in a railioad fence for the convenience of the farmer owning the adjoining land does not change the company's liability to third persons ; astothem#it must keep the gates closed. Wabash R. Co. v. Williamson, 23 Am. &* Eng. R. Cas. 203, 10^ Ind. 154, 3 A^. E. Rep. 814. The Indiana act of April 13, 18S5, provid- ing that gates at farm crossings shall be constructed and kept closed by the owner ANIMALS, INJURIES TO, 181,182. 191 of such crossing, does not relieve a company from liability for injury to animals which enter upon the track through a gateway to such private way, left open in a fence sepa- rating the railroad from a public highway; for where the farm lies entirely on one side the owner thereof could not keep shut the gate on the other side of the track. Louis- \tlle, N. A. 6- C. R. Co. v. Hughes, 2 I/ui. App. 68. 28 A^. E. Rep. 158. Cattle of the plaintifl strayed upon the highway and passed from thence through a gate in a fence erected by the defendant, in pursuance of the laws of this state, upon its tracks, where they were killed. At the place where the gate was situated the land on both sides of the road was owned by one F., for whose convenience it was built. Evidence was given to show that the gate was used by persons in passing to and from the freight depot of the defendant. Held, that if the defendant was accustomed to use the gate for its accommodation, or for the accommodation of persons doing business at its depot, and on the night in question it was left unclosed through the carelessness of any of its agents, such negligence would be the negligence of the defendant. Spin- ner V. New York C. 5» H. R. R. Co., 2 Hun {X. V.) 421, 4 T. &^ C. 595. 181. by landowner.— (i) Caif/e of landowner. — A landowner whose farm is divided by a railroad is entitled to neces- sary crossings ; and where the railroad company fences its track through his farm, and constructs gates in the fences at such crossings for the accommodation of the landowner or his tenant, the duty rests upon him to keep the gates closed ; and if he neglects to do so, and his animals pass through them upon the track and are killed, without the negligence of those operating the trains, the company is not liable for the loss. Adams v. Atchison, T. Or' S. F. R. Co. 49 Am. dr' Eng. R. Cas. 579, 46 A'an. 161, 26 Pac. Rep. 439. Illinois C. R. Co. v. Afc- Kee, 43 ///. 119. Jeffersonville, M. &^ I. R. Co. V. Dunlap, 31 Am. &• Eng. R. Cas. 512, 112 Ind. 93, 13 TV. E. Rep. 403. It appearing that the track-walker, an employe of the company, had shut the gate in question— one constructed for the ad- jacent farm-owner's convenience at a farm crossing— some time after midday, it was error to instruct the jury that the farm- owner was under no obligation to keep the fjate closed. Diamond Brick Co. v. A'ew York C. &* H. R. R. Co., 28 A'. Y. S. R. 95, 7 N. Y. Supp. 868, 5 Silv. Sup. 321, 55 Hun 605, mem. (2) Cattle of third person.* — Where the animals of a third person jump into the in- closure, and are wrongfully upon the prem- ises of an adjacent landowner, and then pass through the gate left open by such landowner, and are killed by a train, with- out the negligence of those in charge of the same, the owner of such trespassing animals is entitled to no greater rights than the landowner, and cannot recover from the company. Adams v. Atchison, T. &• S. F. R. Co., 49 Am. &> Eng. R. Cas. 579, 46 /Can. 161, 26 Fac. Rep. 439. — Approving In- dianapolis & C. R. Co. V. Adkins, 23 Ind. 340. And this rule is not affected by the fact that the railroad company has not complied with the general railroad act, with respect to fences at other points on the railroad. Brooks V. New York &^ E. R. Co., 13 Barl>. (A'. 1'.) 594.— Approving Waldron v. Sara- toga & W. R. Co., 8 Barb. 390. — Approved IN Cecil V. Pacific R. Co., 47 Mo. 246. Distinguished in Bartlett v. Dubuque & S. C. R. Co., 20 Iowa 188 ; Kaes v. Missouri Pac. R. Co., 6 Mo. App. 397. Not fol- lowed in Corwin v. New York & E. R. Co., 13 N. Y. 42. Quoted in Berry v. St. Louis, S. & L. R. R. Co., 65 Mo. 172 ; Dent 7'. St. Louis, I. M. & S. R. Co., 83 Mo. 496 ; Omaha & R. V. R. Co. 7/. Severin, 30 Neb. 318. 182. Gate lett open by third per- Nons.t — A company is not liable, under the Missouri railroad law, § 43, for killing stock which come upon its track through a gate at a private crossing left open without the consent of the company. Harrington v. Chicago, R. I. &> P. R. Co., 71 Mo. 384.— Distinguished in Parks 7/. Hannibal & St. J. R. Co,, 20 Mo. App. 440. Followed in Ridenorei/. Wabash, St. L. & P. R. Co., 81 Mo. 227. Quoted and followed in Johnson v. Missouri Pac. R. Co., 23 Am. & Eng. R. Cas. i8o, 80 Mo. 620. After a company has erected the gate re- quired by statute, it is not expected to stand perpetual guard over it to keep it closed against the act of third parties in leaving it open ; and if stock escape thus, before the servar'^s of the company have notice of the fact of the gate being open, or * See ante, J>4, l.'Jl), 154, 160. t See ante, 178 ; post, 237. 192 ANIMALS, INJURIES TO, 183,184. i ■IP reasonable time in which to discover the fact, no liability attaches. But the gate must " be hung and have latches or hooks, so that it may be easily opened and shut," pursuant to the statute, in order to be en- titled to such exemption from liability. Morrison v Kansas City, St. J. &* C. B. R. Co., 27 Mo. App. 418. — Distinguishing Ridenore v. Wabash, St, L. & P. R. Co., 81 Mo. 227. One whose cattle have gone upon a track through open bars or gates at a railroad farm crossing on the land of another, can- not recover from the one by whose fault such bars or gates were open, if the owner negligenily allowed the stock to stray upon another's land, under the Wisconsin act 1872, ch. 119, § 32, making any one liable who leaves open any gate or bars at a rail- road farm crossing. Pitzner v. Shinnick, 39 Wis. 129.— Distinguishing McCall v. Chamberlain, 13 Wis. 637. A gate in a railroad fence when properly closed was of legal height, but it might be closed in such a way as to leave it much lower at one end. It having been so closed one evening by a third person, one of the plaintiff's horses jumped over the lower end, and in doing so unfastened the gate so that another horse escaped upon the track, and both were killed on the following morning by a locomotive. One of the hooks upon which the gate rested when closed was out of place, but its absence did not interfere with tlie proper closing of the gate or impair its sufficiency when so closed. Held, that neither the absence of the hook nor the negligence of the third person rendered the railroad company liable for the killing of the horses. Davenport v. Chicago, B. &* N. R. Co., 76 Wis. 399, 45 N. W.Rep. 215. 183. Rule where gate has been open for a long time.*— It is error to instruct the jury that, if the road was not so fenced as to prevent the horse from getting upon it, they were bound, under any cir- cumstances, to find for plaintiff. There was evidence tending to show that the horse came upon the road through an open gate. If this was true, plaintiff could not recover, unless the gate had been so long open as to raise the presumption that the servants of the company knew it, or to charge them * See ante, 143. with negligence. Chicago, B. &- Q. R Co. V. Magee, 60 ///. 529. Two horses having been injured by a train on defendant's road, whiere the horses passed upon the track through an open gate at a farm crossing, where the company pei- miited the gate to remain open for a week previous to the accident, the company was regarded as guilty of such negligence as rendered them liable. Chicago &> A'. W.R. Co. v. Harris, 54 ///. 528. In an action to recover double damages for the killing of stock, if the evidence tends to show that the stock passed through a gate in the railroad fence, which had been open for about thirty-six hours before the accident, what constitutes the proper exer- cise of care, and whether a failure to inspect the gate for three or four days, or for a longer or shorter time, is negligence, or whether the gate being open for thirty-six hours will raise a presumption of negligence against the company, are matters for the determination of the jury. Wait v. Burling ton, C. R. SfN. R. Co., 35 Am. &• Eng. R. Cas. 194, 74 Iowa 207, 37 N. W. Rep. 159. — FOL- LOWING Perry v. Dubuque S. W. R. Co., 36 Iowa 102 ; Bell v. Chicago, B. & Q. R. Co., 64 Iowa 321. 184. Liability for leaving bars down. — Under a statute requiring a com- pany to erect and maintain a sufficient fence, bars therein for the convenience of an adjoining landowner constitute an essen- tial part, and the company in allowing such bars to remain down for a period of three months is liable forstock killed having come upon the track through the opening at the bars. Illinois C. R. Co. v. Arnold, 47 ///. «73- Where a company has erected a fence with bars therein, according to provisions of the statute, it is further required to use ordinary care and reasonable diligence in keeping the bars up, and is consequently liable for injury to stock, from failure to per- form this duty. Perry v. Dubuque S. W. R. Co., 36 Iowa 102.— Followed in Brentner V. Chicago, M. & St. P. R. Co., 7 Am. & Eng. R. Cas. 574, 58 Iowa 625 ; Wait v. Burling- ton, C. R. & N. R. Co., 35 Am. & Eng. R. Cas. 194, 74 Iowa 207, 37 N. W. Rep. 159. Bars in fences between a track and adjoin- ing farm for the convenience of the land owner may be left down for such a length of time as to raise the inference that the company has been negligent in failing to ANIMALS, INJURIES TO, 186. 193 keep them up. Perry v. Dubuque S. W. R. Co., 36 Iowa 1 03. A company is not liable for injuries oc- casioned to stocit having come upon the rij>ht of way througii bars in fence between tlie track and adjoining farms, where it ap- pears that the bars were left down by the plaintiff iiimself or by a third party. Perry V. Dubuque S. IV. A'. Co., 36 /o7va 102, It seems that if bars have been taken down by the owner or occupant of the farm for wliose use they were made and the crossing was permitted by tlie railroad com- pany, and he has neglected to replace them, his own act will prevent a recovery in a suit brought by him. Illinois C. R. Co. v. Arnold, 47 ///. 173. If bars are erected in the line of a railroad fence, at the instance and for the accommo- dation of the owner of land, the responsi- bility of keeping them up devolves on him ; and if he nc gleets to do so, and his stock passes through the bar-way upon the line of railroad and is killed, he cannot recover therefor against the company. And if, in such case, the animals of a third person should trespass on the lands and inclosure of such owner, and pass through the bars so erected upon the track of the railroad, and be killed by the train, the owner of such ani- mals could not recover. Indianapolis &> C. R. Co. v. Adkins, 23 Ind. 340. — Approved IN Adams v. Atchison, T. & S. F. R. Co. 46 Kan. 161. Distinguished in Gill v. .' dan:ir & G. W. R. Co., 27 Ohio St. 240; F- rtiett v. Dubuque & S. C. R. Co., 20 iuwa 188. Followed in Indianapolis & C. i\. Co. v. Adkins, 23 Ind. 345. Doubted !N Cincinnati, H. & I. R. Co. v. Ridge, 54 Jnd. 39. Overruled in Indianapolis, P. & C. R. Co. V. Thomas, 1 1 Am. & Eng. R. Cas. 491, 84 Ind. 194; Huntr/. Lake Shore & M. S. R. Co., 35 Am. & Eng. R. Cas. 176, 112 Ind. 69, II West Rep. 107, 13 N, E. Rep. 263. Where the evidence showed that the company had fulfilled the requirements of the statute with reference to erecting and mainlaining a fence along the right of way, with bars therein between the track and an adjoining pasture, which bars were for the convenience of the landowner; and it further appeared that a cow belonging to the owner of the pasture escaped upon the track by reason of the bars being down, but was afterward turned from the right of way into another pasture from which, in some way or other, she again came upon the track and was killed— it was held that there could be no recovery unless the bars where shown to have been left down with- out fault of the pasture-owner, and that by reason of the company's negligence the cow was enabled to reach the track a second time. Eames v. Boston &-' W. R. Co., 14 Allen {Mass.) 151.— Following Waldron 7/. Portland, S. & P. R. Co., 35 Me. 422. Distinguishing Browne v. Providence R. Co., 1 2 Gray (Mass.) 55. — Distinguished in Hammond v. Chicago* N. W. R. Co.,43 Iowa 168. Fol- lowed in Keliher v. Connecticut River R. Co., 107 Mass. 411. 8. Injuries at Public Crossings.* 185. The rule of liability stated.— (I) Generally. — Where an animal passes upon a track at the crossing of a public street or highway, or other place where, from any cause, it would be improper that the railroad should be fenced, and is killed by the locomotive or cars, the company is not liable, except for the negligence or mis- conduct of those having charge of the train. Indianapolis &* C. R. Co. v. McKinney, 24 Ind. 283. Logansport, P. 6- B. R. Co. v. Caldwell, 38 ///. 280. There can be no recovery from a com- pany for killing stock at a highway cross- ing where it appears that the track is fenced on either side with proper cattle-guards at the crossing, and where there is no evidence of negligence on the part of the company. Galveston, H, &* S. A. R. Co. v. Moeser, 3 Tex. App. (Civ. Cas) 295. Where animals are struck by an engine and killed at a public crossing, having come from the highway into which they had been turned by their owner, there being no neg- ligence on the part of the engineer in giv- ing the proper signals, there can be no re- covery against the company. Miller v. Wabask R. Co., 47 Mo. App. 630. An owner of mules killed upon the track by an engine and cars cannot reci ver damages therefor, though they escaped from a properly fenced enclosure without his knowledge, and were on the highway at its intersection with the track at the time of * See Crossing of Streets and Highways, and also an/f, 108, 117. * «fr- fl/Zy.*— Where a moving train causes an injury at a public street crossing thtire can be no re- covery therefor without proof of actual neg- ligence. McPheeters\. Hannibal &* St. J. R. Co., 45 Afo. 22.— Quoted in Pryor v. St. Louis, K. C. & N. K. Co., 69 Mo. 215. And to recover in such cases the owner must prove, by a preponderance of evidence, that .the stoci{ were {{illed through negli- gence. Terre Haute &* I. R. Co. v. Tuter- wiler, 16 III. App. 197. To recover the value of a heifer belonging to the plaintiff, alleged to have been injured so that it would have necessarily died from such injury, if it had not been actually killed by the employes of the company — held, that though the injury complained of occurred at the railroad crossing over a public high- way, and at a place where the company was not bound to fence, yet, if such an injury was the result of the negligent and careless operation of the train on defendant's rail- road, the company is liable for damages sus- tained. Missouri Pac. R. Co. v. Wilson, 1 1 Am. S. F. R. Co. v. Miller, 35 Ant. &* Eng. R. Cas. 190, 39 Kan. 419, 18 Pac. Rep. 486. Where a railroad fails to keep its cross- ings over a public road in repair, and in con- sequence thereof a team is stalled and struck by a passing train, it is liable for the injury. Kiines v. St. Louis, I. M. &* S. R. Co., is Mo. 611. The state has power to construct high- ways in the Cattaraugus Indian reservation, and a railroad company is therefore liable for injuries to a horse caused by its failure to keep its crossing over such highway in proper repair. France v. Erie R. Co., 2 Hun (N. V.) 513, 5 r. ost. 1»4, 277-270. nine inches above the level, and while plaintitT, with a pair of horses and wagon, was crossing over, an engine standing close by whistled to give notice of the train start- ing. This caused the horses to start for- ward, striking the wagon against the pro- jecting rails and breaking the whipple-trce, in consequence of wliich the horses ran away, and one of them was injured. //(■/(/, that defendant would not be liable if llie whipple-tree was broken by the sudden starting of the horses, without reference to the state of the track, for it was not proved that the blowing of the whistle was an un- necessary and unlawful act; but thai if the accident happened through the defective state of the track it would be liable, and the case should have been left to the jury, witliout any evidence on plaintiffs part to show what the state of the highway was before defendant's railway intersected it. Thompson v. Great Western R. Co., 24 I '. C. C. P. 429. (2) Sufficiency of crossing. — U railroad crossings at highways are so constructed that the public can cross with teams and vehicles with reasonable safety and con- venience, such crossings are suihcient in law to protect the company from liability for damages for stock killed at such crossings. Mcc/:er v. Chicago, M. &^ St. P. R. Co., 19 Am. &• Eng. R, Cas. 477, 64 Iowa 64 1 , 2 1 A'. IV. Rep. 120. A track constructed across a highway some 9 inches above the level of the high- way is not so dangerous in itself as to re- quire persons with know ^dge of it to aban- don driving over it, or to prevent a recovery for an injury to a horse while driving over it. E-cansville &* T. H. R. Co. v. Carvener, 32 Am. &^ Eng. R, Cas. 134, 113 /nd. 51, 14 A^. E. Rep. 738, 12 West. Rep. 203. Where, in a suit to recover the value of an ox killed on a highway crossing, it appeared that the defendant's railroad was fenced at said crossing, and furnished with cattle- guards, and that its alleged negligence con- sisted in its failure to cover a ditch running along its track and across the highway, and which it has bridged at said crossing, but not to the full width of the highway — held, that there is nothing in the statute requir- ing a railroad company to cover such ditches the full width of the highway. Whitsky v. Chicago &> G. T. R. Co., 62 Mich. 245, 28 N. IV. Rep. 811. Where a company planks acrossing, it will ANIMALS, INJURIES TO, niO-l»2. I»7 be liable for a horse wliicli is injured by catching his foot in a space that is unneces- sarily iur^e between a rail and a plank. Cuddeback s.Jewett, 20 Hun [N. K.) 187, 100. Failure to fviivc at croHMliiff.* — A company may be held liable for killing stock between a highway crossing and a cattle-guard 75 feet away, where it appeared that a fence was necessary and might have been consti acted. Peoria, I). &* E. A*. Co. V. S/ii-//y. 25 ///. A/>p. 141. 101. Duty as to ^aXen at grade crossliiffN.— Where a company is required by statute to keep the gates at grade cross- ings constantly closed, and owing to its failure to do so, horses which escaped from a neighboring field get upon the track and are killed, it is liable, such horses, as to it, being lawfully on a highway. Fawcett v. York &> N. M. R. Co., 16 Q. B.6\o, 15 /«r. 173, 20 Z./. Q.B. 222. Under jj 9, 5 & 6 Vict. c. 55, an obligation is imposed upon railway companies to keep crossing gates closed against stray cattle. Accordingly, if a horse is killed by the neg- ligence of a company in this respect it is liable, although the horse escaped onto the track owing to the negligence of the plaintiff in fastening him. Dickinson v. London (S<» N. IV. R. Co .xH.Cr' R. 399, Where a company negligently leaves open a gate at a crossing of its track and a tram- road, it is liable to the person having a license to use such tramroad with his carts and horses, for killing a horse which escapes through such gate onto the track. Afar- fell V. South Wales R. Co., 8 C. B. N. S. 525, 7/«r. A^. S. 240, 29 L. J. C /'. 315, 8 W. R. 765, 2 L. T. 629. 102. Duty to i;ive signals, gener- ally, f — (i) Generally.~-\^\\&x& a locomotive on the defendant's railroad ran against and injured the plaintiff's mare upon a bridge in a public highway, and it appeared that no bell was rung or whistle sounded, and the speed of the train was not slackened — held, that the company was liable for damages. Springfield 6- /. S. E. R. Co. v. Andrews, 68 ///. 56. Where stock are killed near a crossing, •See<7«/^ 108, 117. t See ante. 35, 66 ; post, 208, 200. Signals as to cattle at crossings, see notes, 13 Am. & Eng. R. Cas. 506, 15 Id. 549, 35 Id. 448 ; 38 Id. 307, abstr. Statute requiring signals at crossings. Whether injuries to cattle are included, see 45 \m. .t Enc; R. Cas. 491, ahstr. but ber<;re the train reaches it, and no sig- nals are given, as required by the general railroad act, {f 38, a company is liable. The questions, in such case, as to whether the rate of speed 01 the train was too great and as to the exact p. 'ce where the injury oc- curred, are for the ary. Toledo, P. &* IV. R. Co. V. Foster, 43 til. 415. Where an animal is killed at a crossing where the statute requires a bell to be rung or a whistle sounded, and the jury find that neither was done, and that the injury oc- curred by reason of such failure, the com- pany will be held liable. Great Western R, Co. V. Geddis, 33 ///. 304.— Distinguishing Illinois C. R. Co. v. Phelps, 29 III. 447; Illinois C. R. Co. v. Goodwin, 30 III. 1 17. To render a company liable foi stock killed by one of its trains at a public cross- ing, it must be shown that neither of the statutory signals was given. A train is not required to both sound the whistle and ring the bell on approaching a crossing. Hal- ferty v. Wabash, St. L. P. R. Co., 19 Afo. App. 120. A railroad company that has killed stock at a highway crossing cannot avoid liability for failure to use the statutory signals by showing that the owner in charge of the stock knew the train was coming when a half a mile away, and might have removed the stock. Alissouri Pac. R. Co. v. Stevens, 35 Kan. 622, 12 Pac. Rep. 25. Where a railway train in approaching a crossing neglects to give the proper signals, the company will not be relieved from lia- bility because the person whose cattle were run over did not take the best means to avoid the accident, or because his horses il 1 108 ANIMALS, INJUkll'S TO, Itl3. ■li were uniniiiiiiKiablf. /jwn v. (irtunf I > link A\ Co., 20 I/. C. (J. n. 256. When; the pliiiiilifT's mule escaped from, him, and, straying; upon a railroad com- pany*!) track at a public crossing, was struck by a locomotive and killed, the failure of the cnt^ini'cr lo ring llie bell and sound the whisti'- iis the engine approached the cross- ing WHS not negligence on the part of the coinp;lM\ ; iiiid the mule being a trespasser, the |)lainlilf could not recover. Fisher v. J'eniisyh'ttnia R. Co., 126 Pa. St. 293. 17 Atl. Kefi. 607. (2) Liability t/iou^/i signals are f^iven. — The fjbservaiice of the regulations required by Alabama Code, 1876, jj 1699, of those in charge of trains approaching "any public road crossing, or any depot or stopping- place on such road " will not relieve the compimy of liability, if there is negligence in other respects. South &• N. Ala. N. Co. V. Thompson, 62 Ala. 494. — Followed in Alabama G. S. R. Co., v. Hawk, 18 Am. & Eng. R. Cas. 194, 72 Ala. 11 3, 47 Am. Rep. 403. (3) Illustrations,— U the employes of a company operating the engine of the train see cattle, unattended, upon or about to go upon the railroad crossing over a public highway, at a distance of three hundred yards before reaching the crossing, and fail to sound the whistle to frighten them away from the track, and fail to slacken the speed of the train, and otherwise fail to take any steps to avcid running over the cattle, such omissions and conduct of the employes are sufficient to authorize a jury to render a verdict again«t the railroad company for the damages sustained by the owner of the rattle thrown from the track by the engine and train. Missouri Pac. R. Co. v. IVilson, 1 1 Am. &* Enff. R. Cas. 447, 28 Kan. 637. In a common-law action against a railroad for negligently running over and killing plaintiff's cattle on a highway crossing, the evidence tended to show that the cattle were killed by defendant's train at the crossing; that the servants of defendant having the management of the train failed to ring the bell or to blow the whistle as it approached the crossing; that the cattle had freely ap- proached the crossing a short time before the train arrived, and that there was noth- ing in their condition or situation to pre- vent them from escaping the train if the required signals had been given. Held, that these facts made out a prima facte case for plaintiff, and that a demurrer to the evidence by defendant was properly over- ruled. Taylor v. St. Louis, I, M. &* S. R. Co., 83 Afo. 386. HKI. PrcMiimptioii of iieKliKiMicv from t'aUiirv to mIkiiiiI.*— Under Ala- bama Code, J'iJ 1699, 1700, the failure of an engineer to observe the statutory prrciin- tions on approaching n highway crossing or depot is negligence per se, making the com- pany liable for stock killed or injured; and when sued, the burden is on it to show that the statute was complied with. East 'J'etin. V. &• G. R. Co. V. Deaver, 79 Ala. 216. Ala- bama, (J. (S- S. R. Co. V. Mc Alpine, 22 /////. <&- Ehj;. R. Cas. 602. 75 Ala, 113. A failure to give the signals before ap- proaching a crossing, as required by Cali- fornia Civ. Code, § 486, is presumptive neg- ligence, and where such failure is proved, evidence is immaterial whether the engineer could have seen the animals before they came upon the track only a few .'eet away, after which he did all that he could to avoid the injury. Oraitl v. Pacific Coast R. Co., 85 Cal. 291, 24 Pac. Rep. 661. When stock killed or injured at a crossing are in a condition and situation to escape if the required signal is given, a prima facie case is made against the company if it has failed to give such signal as is required by § 38 of the Missouri railroad act. Turner V. Kansas City. St./. 6- C. li. R, Co , 78 Mo. 578.— Approved in Keim v. Union R. & V. Co., 90 Mo. 314. Quoted in Halfertv v. Wabash, St. L. & P. R. Co., 82 Mo. 90.— Howenstein v. Pacific R, Co., 55 AIo. 33. — Followed in Holman v. Chicago, R. I. Si. P. R. Co., 62 Mo. 562. Quoted in Stone- man V. Atlantic & P. R. Co., 58 Mo. 503. — Illinois C. R. Co. v. Gillis. 68 ///. 317. And in order to rebut this presumption, the company must show that the men dis- charged every duty imposed by law, unless it be shown that the injured party has in some way contributed to the injury or the circumstances rebut the presumption that the injury resulted from neglect of duty on the part of the company. Howenstein v. Pacific R. Co., 55 Mo. 33. In Indiana, the omission of the employes of a company to give the statutory signals at a highway crossing is conclusive evidence of negligence on the part of the railroad company, and gives rise to t right of action * See ante, 84, 1 'J!v, 143 ; post, 207. ANIMALS, INJURIES TO, 104. [\)d lie cr- A'. fur injuries to animals upon lii^jliway cru&s- Ings, witliout contributory negligence on the part of tlie owner, resulting from a failure to give the statutory signals. Chicago, St. /,. 6- /'. A'. Co. V. Fenu, 3 hui, App. 250, 29 yV. E. Hip. 790. -yuoTINii Hill V. Louis- ville & N. K. Co.. 9 Heisk. (Tenn.) 823. 104. Failure to Higiial iiiiiMt be proxiiiiute i.-uiiHe.* — A failure on the part of those in charge of a train to ring a bell or sound a whistle at a crossing will not render the company liable for stock killed, unless it appears that such ringing or sounding would have prevented the killing. Illinois C. K, Co. v. Phelps, 29 ///. 447. — D I s- riNCiUlSHEl) IN Great Western R. Co. v. (ieddis, 33 III. 304; Toledo, W. & W. R. Co. V. FurKUSsoii, 42 111. 449; St. Louis, J. & C. K. Co. V. Tcrhune, 50 111. 151 ; Illinois C. R. Co. V. Phillips, 55 111. 194. Alabama Code 1876, ^ 1699, makes it the duty of railroad employes to blow a whistle or ring a bell before reaching crossings and other places; and if the proof shows that stock are injured, and that the cause could reason- ably be traced to a failure to observe the re- quirements of the statute, the company, to avoid liability, must prove that they had been complied with; but this rule does not apply where the injuries are not caused by a failure to observe the requirements of the statute. Alabama G. S. A'. Co. v. Mc Alpine, 22 Am. &* Eng. R, Cas. 602, 75 A/a. 113. The failure of the engineer to give the crossing signals required by Indiana statute {§ 4020, Rev. St. 1881), will not enable a party to recover for a cow killed by a pass- ing train upon a highway crossing, although she escaped from a sufficient enclosure without the fault of the plaintiff, who made diligent efforts to find her, unless the facts authorize the conclusion that the failure to give the signals caused the death of the ani- mal. Such a conclusion is not justified on account of a failure to sound the whistle, if the other statutory signals are given. Lou- isville, N. A. &* C. H. Co, V. Green, 120 Ind. 367, 22 A^. E. Hep. 327. If an animal is killed at a public crossing by reason of a failure or neglect to blow the whistle or ring the bell, as required by the Indiana statute, the company is liable; but the omission to give these signals will not authorize the rendition of a judgment against the company, unless the facts found * See ante, 35, 65. show that the killing was caused by the fail- ure to give them as required by the statute. Lake Shore ^ M. S. A'. Co. v. VanAiiken, I /«» T. H. R. Co. V. Russell, 39 ///. App. 443. When a team has become stalled on a highway crossing, or so near to their track as to be in danger of being struck by a parsing train, railway employes must be prompt and energetic in their efforts to sti p the train in season to avoid a collision. Girland v. Maine C. R. Co., 85 Me. 519, 27 All. Rep. 615. 108. Duty to slacken speed.'"— If an engineer discovers stock on the track at a crossing, or so near thereto that a collision may be expected, it is his duty to stop or slow his train and use such care as is nec- essary to avoid a collision. St. Lot /.:, A.&' T. H. R. Co. V. Russell, 39 ///. App. 443. VVhen an engine-driver sees, or can see, in time to slacken the speed of his train, a lot of cattle crossing the track upon a highway, but does not stop the train or slacken its speed, and kills an animal which has es- caped from the owner's inclosure, this will show negligence on his part of a high de- gree, and the company will be liable for the animal killed. Such a case is not like cases wliere the cattle were quietly grazing along- side the track when discovered. Chicago &- A. R. Co. V. Kellam. 92 ///. 245.— Dis- tinguishing Peoria, P. & J. R. Co. v. Cliamp. 75 ill. 577 ; Chicago, B. & Q. R. Co. V. Bradticld, 63 III. 220. Due diligence in operating night passen- ger trains does not require that their usual higli rate of speed shall be reduc-^d at every public crossing to fifteen miles an hour in order to avoid injury to cattle which may possibly be found thereon. Connyers v. .Sioux City »&* P. R. Co., 78 Iowa 410, 43 yV. W. Rep. 267. In an action ;o recover for a heifer which ran before defendant's train from a highway crossing into a cattle-guard, and was killed, defendant asked the following instructions : " Unless you find that the en- gineer, in the exercise of ordinary prudence, wiis bound to anticipate that the heifer would stay on the track, or run into the cattle-guard, your verdict should be for the defendant ; " and, " if you find that the natural thing for cattle on a crossing, un- der such circumstances as shown in this * See ante, 69. Duty to check speed of train at public cross ings, see 38 Am, & Eno. R. Cas. 307 abstr. case, would be for them to leave the track, instead of running into the cattle guard, then the engineer was justified in thinking that the cattle would leave the track, and it was not negligence for him not to stop or reverse his engine sooner than he did, and the defendant would not be liable in this case." Held, that the instructions were properly refused, because it is not enough always for an engineer in such a case to provide against what he believes or antici- pates will happen, but it is his duty to pro- vide against what he anticipates may hap- pen. Grimmell v. Chicago &» N. IV. R. Co. 31 Am. &* Eng. R. Cas. 537, 73 Iowa 93, 34 A. IV. Rep. 758. Where an animal is seen approaching a crossing only 30 or 40 feet away from it, the road being fenced on either side, it is such negligence as to make the company li- able, where the engineer does not sound an alarm, ciieck the speed of his train, nor do anything to prevent injury to the animal. Illinois C. R. Co. v. Person, 65 Miss. 319, 3 So. Rep. 375. In an action for the negligent killing of plaintiff's cows by defendant's trains, on a public crossing, mere proof that the speed of the trains was not checked, and that the '■"'tie could have been seen eighty rods off, does not establish defendant's negligence. Milburn v. Kansas City, S . J. &■* C. B. R. Co., 29 Am. &* Eng. R. Cas. 244, 86 Mo. 104. The Great W. R. crosses a highway on a level, and one of their trains going at its us- ual rate o( speed ran into and killed twocows, which were passing along the highway at their usual pace but without an attendant. The owner of the cows sued the company in an action on the case, founding his claim to damages solely on the ground of their neg- lect in not slackening speed at the cross- ing. It appeared in evidence that the track was not fenced. Held, that if the company were bound to fence in their road where the accident occurred, it was by their default the cows got upon the track, and therefore they could not object that the cows were not legally on the highway. That if the company were not bound to fence, still they were guilty of negligence as charged in the declaration, and therefore as against them the cows were legally there. Renaud v. Great IVestern R. Co., 12 U. C. Q. B. 408.— Reviewing Ricketts v. East & W. I. D. & R. Co., 12 C. B. 160.— Approved in Ham V. Grand Trunk R. Co.. 11 U. C. C. P. 86. 30^ ANIMALS, INJURrES TO, IIM), tiOO. i! —Distinguished in McFic v. Canadian Pac. R. Co., 2 Man. 6. 9. Injuries at Station Grounds, — Yards* 101). Geiieralliy.— (1) Statement of rttle. — A railroad company is not liable in damages, under the statute, for stock killed by its trains on depot grounds. Kyser v. Kansas City, St. /. &^ C. B. A\ Co., 56 /twa 207, 9 A'. If. Rep. 133. Where the board of county commission- ers has not, under Indiana Rev. St. 1881, A/. A'. Co. V. Stan/ey {Ind. App.), 27 N. E. Rep. 316.— Following Indianapolis, C. & L. R. Co. v. Harter, 38 Ind. 557 ; Jcffersonville, M. & I. R. Co. V. Huber, 42 Ind. 173; Jeflfersonville, M. & I. R. Co. V. Adams, 43 Ind. 402 ; Stone V. Kopka, 100 Ind. 458. Section 1289, Iowa Code, providing a remedy for animals killed on railways at places where tlie companies have the right to fence but fail to do so, and upon depot grounds by trains operated at a speed ex- ceeding eight miles per hour, applies only to stock running at large, and not to the case of a horse killed while being driven across the track upon the grounds of a depot. Johnson v. Chicago (S^» A^. \V. R. Co., 35 Am. &^ Eng. R. Cas. 131, 75 Iowa 157, 39 JV. IV. Rep. 242. The provisions of the Oregon statute (§§ 4044 and 4045) providing that, if a rail- road fails to fence its road against livestock, it shall be liable for the injuries resulting from such failure, etc., does not extend or apply to depot giounds ; and in the absence of negligence ihe company is not liable for stock killed thereon. A/oses v. Southern Pac. R. Co., 42 Am. &^ Eng. R. Cas. 555, 18 Oreg. 385, 23 Pac. Rep. 498.— QUOTING Davis V. Burlington & M. R. R. Co., 26 Iowa 554. (2) Sidings — Switch limits— Approaches, f/c— Under the statute railway companies are required to receive and discharge pass- engers and frei'jht at sidings, and a com- pany is not liable for killing stock at a place where there is a flag station, siding, and highway crossing, unless there was other * See Stations and Depots ;also ante,\m. negiigt-ncc besides u failure to fence. Gulf, C. &> S. E. R. Co. V. Wallace. 2 Tex. Civ. App. 270, 21 S. IV. Rep. 973.— Quoting In- ternational & G. N. R. Co. V. Cocke, 64 Tex. 150. Railroads are not bound to fence within the switch limits of stations where it is nec- essary to receive and discharge freights; and no recovery can be had for stock killed within such limits. Cleveland, C, C. &* St. L. R. Co. v. Roper, 47 ///. App. 320.— Fol- lowing Louisville. E. & St. L. Con. R. Co. V. Scott, 34 III. App. 635 ; Cleveland, C, C. & St. L. R. Co. V. Abney, 43 111. App. 92 ; Cleveland, C, C. & St. L. R. Co. v. Myers, 43 111. App. 251. In the absence of anything to show neg- ligence in the management of the train, a company is not liable for killing a horse near its depot, and within switch limits, where it was not practicable to maintain a fence. Swanson v. Melton, 4 Tex. App. (Civ. Cas.) 459, 17 S. IV. Rep. 1088. A company is not liable for the value of a cow killed on one of the approaches to a station by an engine run without negligence. Chicago &* G. T. R. Co. v. Camphell, 7 Am. St. L. R. Co. V. Adney, 43 ///. App. 92.— Quoting Chicago, B.&Q. R. Co. V, Hans, 11 1 111. 1 14.— Followed in Cleve- land, C, C. & St. L. R. Co. V. Roper, 47 111. App. 320. A railroad company is not liable for kill- ing stock on depot grounds which are nec- essarily left unfenced, without proof of negligence on the part of the trainmen. S7vearingen v. Missouri, A'. (S^ T. R. Co., 64 Afo.72, 17 Am. Ry. Rep. 2gi .— DiSTiNGVifiH- ING Tiarks v. St. Louis & I. M. R. Co., 5S Mo. 45. Following Lloyd v. Pacific R. Co., 49 Mo. 199; Morris v. St. Louis, K. C & N. R. Co., 58 Mo. 78. Neither under the Missouri damage act, § 5, nor under the general railroad act, § 43, are railroad companies liable for killing stock on depot grounds in incorporated towns or cities by reason of such grounds not being fenced, unless there be negligence. Llojfd v. Pacific R. Co., 49 Mo. 199. — Fol- lowed IN Swearingen v. Missouri, K. & T. R. Co., 64 Mo. 73 ; Edwards v. Hannibal & St. J. R. Co., 66 Mo. 567 ; Pryori/. St. Louis, K. C. & N. R. Co., 69 Mo. 215 ; Pearson v. Chicago, B. & K. C. R. Co., 33 Mo. App. 543. Quoted in Wymore v. Hanniba' & St. J. R. Co., 79 Mo. 247. Reviewed in Morris v. St. Louis, K. C. & N. R. Co., 58 Mo. 78. Where a railway company has brought cattle to its station-yard, a place not fenced from its track, and a porter comes out of the office in the night-time with a lantern, and the light startles some of the cattle and causes a bull to run upon the track, where it is killed by a passing train, the company is not liable, there being no evidence to show negligence on the part of its servants. loberts v. Great Western R. Co., 4 C. B, N. S. 506, 4/«r. N. S. 1240, 27 L.J. C. P. 266. In an action to recover for injury to the plaintiff's team, which he had driven be- tween tracks in a railway-yard, in a space not designated for standing room — held, that the company was liable if, after becom- ing aware of his danger, its engineer failed to use ordinary care to avoid doing injury. Kansas Pac. R. Co. v. Cranmer, 4 Colo. 524. In an action for killing stock at a depot, it was held that it is the duty of those oper- ating the train, if they discover the perilous condition of the stock in time to avert the injury, to use every reasonable effort at their command consistent with the safety of the train, etc., and that if they failed to do so and injury thereby resulted, the plaintiff is entitled to recover. Senate v. Chicago, M. &^ St. P. R. C(A,4i Mo. App. 295. Where the owner of stock turns them out upon commons near drpot grounds, and they stray therefrom to the track on the de- pot grounds and are killed, there can be no recovery without proof of wilful killing or gross negligence. Bennett v. Chicago &• N. W. R. Co., 19 Wis. 145.— Approved in Cecil V. Pacific R. Co., 47 Mo. 246. Distin- guished IN Bostwick V. Minneapolis & P. R. Co., 2 N. Dak. 440. 201. Bate of speed.*— Cattle which are by law permitted to run at large are not trespassers by going upon depot grounds; but if the owner turns them out where they are liable to go upon such grounds, the company is not bound to stop its trains and drive them off, nor even slacken the speed or change its time-table, in order to avoid injuring them. Smith v. Chicago, R. I. &^ P. R. Co., 34 Iowa 506, 5 Am. Ry. Rep. 535.— Followed in Connyers v. Sioux City & P. R. Co., 78 Iowa 410, 43 N. W. Rep. 267. Where by the unlawful speed of a train upon station grounds animals at large there- on are stampeded and run upon the track beyond the grounds, whether by breaking down fences or otherwise, and, without checking the speed of the train, they are run down and killed the unlawful speed of the train may fairly be said to be the proximate cause of the injury, and the company is liable therefor. Story v. Chicago, M. &*. St. P. R. Co., 79 Icnua 402, 44 N. W. Rep. 690.— Distinguishing Monahan v. Keokuk &D. M. R. Co., 45 Iowa 523. Iowa Code, § 1289, providing that railroad companies shall be liable for stock killed on depot grounds by trains running faster than eight miles an hour, imp oses no rate of »See ante, 36, 69-72, 198 ; />wr, 210, 211. s; '\ I i.'04 ANIMALS, INJURIES TO, li02-204. S speed upon trains while not running on de- pot grounds. So held in a case where stock were killed just outside the depot grounds. Monahan v. Keokuk &" D. M. K. Co., 45 Iowa 52.V 202. Injuries in inclosed railrosul- yards. — The yard of defendant, a railroad company, was full of timber, pitfalls, etc., and was a dangerous place for cattle ; it was inclosed by a high fence, with proper gates, which during the day were opened and shut for the passage of cars and at night were closed by a watchman. One afternoon a cow of plaintiff's strayed into the yard ; she was not discovered by the watchman, who searched the yard before closing the gates. At night he turned dogs loose in the yard. They chased the cow, she fell, broke her thigh, and died. Held, that the company was not liable for the cow. Leseman v. South Carolina K. Co., 4 Rich. (S. C.) 413. One who has often been in a railway-yard and knows the place well cannot complain of the insufficiency of a fence to such yard, whereby his horse, having been frightened by a train, received injury, there being no proof of want of reasonable care on the part of the company to prevent damage from un- usual danger. Manchester, S. <&<• L. H. Co. V. Woodcock, 25 Z,. T. N. S. 333. A company is liable for killing a horse which strays from a field onto a public road and thence into a yard not fenced from a railway, the gate of which was open through the neglect of the company's servants. Alid- land R. Co, v. Daykin, 17 C. B. 126, 25 L. J. C. P. 73. 10. Injuries in Cities, Villages, etc. 203. Generally.— The Indiana act of '853, § 3, as to the absolute liability of a company for animals killed by cars, is not applicable to a case where the injury is done by the cars at the crossing of a public street in a city, the company having no right to erect a fence thereon. Lafayette &* I. R. Co. V. Shri»er,(i Ind. 141. — REVIEWED IN Davis V. Burlington & M. R. R. Co., 26 Iowa 549. When stock are killed by a railroad train the company is not necessarily absolved from liability under ch. 94 of the Kansas laws of 1874, by proof that the place of in- jury was within the territorial limits of an incorporated city, or even that it was within such portion of those limits as Is regularly laid off into blocks and lots, surrounded by streets and alleys. Union Pac. R. Co. v. Dychc, 1 1 Am. &■■ Eng. R. Cas. 427, iS Kan. 200.— Distinguished in Atchison, T. & S. F. R. Co. V. Riggs, 15 Am. & Eng. R. Cas. 531, 31 Kan. 622. In Missouri a railroad company is not lia- ble for killing stock within the limits of an incorporated city, under Wagn. Mo. St. p. 310, § 43. Cousins V. Hannilial &" .St. J. R. Co., 66 Mo. 572. — Followinc; Edwards v. Hannibal & St. J. R. Co., 66 Mo. 567 ; Elliott V. Hannibal & St. J. R. Co., 66 Mo. 683. The general terms of the Texas statute im- posing a liability on railway companies for injuries to animals unless the tracks are fenced, do not apply to such places as public necessity or convenience requires shall be left unfenced, such as the streets of a city or town, depot and contiguous grounds, the crossings of highways and other like places. International &• G. N. R. Co. v. Dunham, 31 Am. &• Eng. R. Cas. 530,68 Tcx.2i\,/^S.W. y?<'/. 472.— Following International & G. N. R. Co. %>. Cocke, 64 Tex. 151. 204. No liability without proof of actual negligence.*— In a suit in Illinois against a company for injury to stock by its train within the limits of a city, town, or vil- lage, there can be no recovery without an averment and proof that the servants of the company were guilty of negligence in run- ning the train through such city, town, or village. Peoria, P. &* J. R. Co. v. Barton, 80 ///. 72. Where stock are killed by a railroad at a place where the law does not require the company to fence, the party seeking a recov- ery must prove that the killing of the stock was caused through the negligence of the company ; and where the proof shows that the stock were killed within the limits of a city, and there is no evidence of negligence on the part of the company, no recovery can be had. Illinois C. R. Co. v. Bull, 72 III. 537. There can be no recovery in Missouri for the killing by a railroad train of a domestic animal within the limits of an incorporated city, without allegation and proof of negli- gence. Evans P. /?. Co., 18 Mo. App. 391.— Following Wallace?/. St. Louis, I. M.& S. R. Co., 74 Mo. 594. — Wallace v. St. Louis, I. M. &> S. R. Co., 74 Mo. 594.— Distin- guished IN Kendig v. Chicago, R. I. & P. R. Co., 19 Am. & Eng. R. Cas. 493, 79 Mo. 207. Followed in Fitzgerald v. Chicago, R. I. & P. R. Co., 18 Mo. App. 391. Not FOLLOWED IN Wymore z/. Hannibal & St. J. R. Co., 79 Mo. 247. Where nothing is shown by the plaintiflf save the injury and the passing of the train, at the rate of twenty or twenty-five miles an hour, over a tract of land within a village, midway between public thoroughfares nine hundred feet apart, and there is no evidence that those in charge of the train saw the cow before or after she was killed, or that they might, with due care, have seen her in time to prevent the injury, there can be no recov- ery, and a demurrer to the evidence should be sustained. Lord v. Chicago, R. I. &» P. R. Co., 82 Mo. 139.— Followed in Sloop v. St. Louis, I. M. & S. R. Co., 22 Mo. App. 593. A company is not liable for killing stock by reason of a failure to fence where its track runs through grounds that are plotted for a town, where streets are laid off and dedicated to public use, unless there be proof of actual negligence, where the town exists otherwise than on paper; but it is not necessary that it be incorporated. Gerren V. Hannibal &* St. J. R. Co., 60 Mo. 405. 205. Rule as to aninuUs lawfully riinuing at large.*— Where a city ordi- nance permits cattle to run at large during certain hours of the day, it is not negli- gence per se for the owner of a cow to turn her loose upon the street, unattended and near a railroad track, and it is the duty of the company to operate its trains with refer- ence to the right of the owner to permit his cow to go at large, and to use reasonable and ordinary diligence to avoid injuring her. Fritz v. First Drv. St. Paul &* P. R. Co., 22 Minn. 404, 19 Am. Ry. Rep. 404. 206. Kiile as to aniinals nnlawt\illy running at large t — Gross negli- gence.) — If there be a city ordinance mak- • See post, 24a-250. + Set ante, 53-60, 152-159, 187;/^/, 260-270. tSee ante, il7, 50, 60, 200; post. 217, 218, 28^. ing 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 neg- ligence. International &^ G. N. R. Co, v. Code, 23 Ant. &> Eng. R, Cas. 226, 64 Tex, 151. When the owner of stock knowingly per- mits it to run at large in a town, city, or vil- lage in violation of statute, and it is injured by a railway train at a place where the rail- way company is not under legal obligation to fence its road, tiie railway company is responsible to the owner if the injury was caused by tlie gross, wanton, or wilful negli- gence of its employes, but not if such injury resulted merely from the violation of a mu- nicipal ordinance limiting the rate of speed of railroad trains. Windsor v. Hannibal Or* St. J. R. Ct>., 45 Mo. App. 123.— Distin- guishing Spence v. Chicago & N. W. R. Co., 25 Iowa 139 ; Fritz v. Milwaukee & St. P. R. Co., 34 Iowa 337. Reviewing Bow- man 21. Chicago & A. R. Co., 85 Mo. 533; Schwarz v. Hannibal & St. J. R. Co., 58 Mo. 207 ; Owens v. Hannibal & St. J. R. Co., 58 Mo. 386. 207. Presumption as to place of killing.'*' — While a company is not required to fence its track within the limits of a vil- lage, yet when an animal is killed near the village by cars, the presumption is that the houses compose the village, and if the place where the animal is killed is beyond them, it is beyond the village; and if the town ex- t(. ids beyond the houses the company must prove it in order to relieve itself of the ne- cessity of fencing its roads at such point. Ewing V. Chicago &> A. R. Co., 72 ///. 25. — Followed in Rockford, R. I. & St. L. R. Co. V. Irish, 72 111. 404. 208. Right to sound alarm to drive stock from track. — It is not negligence, affirmative or negative, for a locomotive en- gineer to blow the stock alarm-whistle in a town or city to frighten an animal from the track, in case of a sudden emergency, more especially where the scene of the occur- rence, though within the corporate limits, is not in a. populous quarter, but in the woods or fields adjacent to the city proper. Port Royal &* W. C. R. Co. v. Phinizy, 40 Am. &* Eng. R. Cas. 212, 83 Ga. 192. 9 5. E. Rep. 609. 200. Failure to give signals.! — Where it appeared that plaintiff's gate »Sce ,««/<■, 128. tSee-"• '8 Mo. App. 694. Acompa; v .-. :k.' Iia l^: 'u'' killing a cow at a crossing wh.l- .-,1 !. jperly allowed to run at large, where iici vocape was pre- vented by a rope attached to her being caught around a loose board on the cross- ing, where the speed of the train was a rea- sonable one, considering the place of the killing, it being in a sparsely-settled suburb of a town. Peoria, D. &* E. R. Co. v. Mil- ler, II ///. App. 375.— Quoted in Wabash, St. L. & P. R. Co, V. Hicks, 13 111. App. 407. The evidence showed that the engine, at the moment it struck the horse, was thrown * See ante, 52. t See ante, 36, 69-72, 198, 201. from the track, and that the momentum oi the train carried it forward for a distance of more than ninety paces, with the flanges of tlie wheels striking almost squarely against the lies, from which fact it appeared that tlie train must have been running at a very high rate of speed. The employes of the company certainly knew that the track was not fenced through the village through which the train was running. They also knew that persons, cattle, or horses might be on the track or crossing over it. Know- ing this danger, it was their duty to have run whilst in the village at such a rate of speed as to have tlieir train under control, and, failing to do this, the company was guilty of gross negligence, and the jury were warranted in so finding. Chicago &* A. R. Co. V. Engle, 84 ///. 397. 211. Biiniiiug at a prohibited rate of speed. — (i) Generally. — In Illinois, where a company runs trains through an incorporated city or village at a greater rate of speed than the ordinances of such city or village permit, if any live stock is killed by such trains, the killing, by the statute, will be presumed to have been done through negligence; and proof of the killing and violation of the ordinance will make out a prima-facie case and throw the ontis upon the company. Toledo, P. &>• IV. R. Co. v. Deacon, 63 ///. 91. Cleveland, C, C. &> St. L. R, Co. V. Ahrens, 42 ///. App. 434. Under the Mississippi Code 1880, § 1047, where an animal is killed by a train run- ning at a greater rate of speed than six miles an hour within the corporate limits of a city the company is liable. Louisville &* N. R. Co. V. Saucier, (Miss.) i So. Rep. 511. And the company is liable in such cases, under Mississippi Code 1880, § 1047, al- though the engine is checked when the animal is seen, and collides vith less mo- mentum. New Orleans, M. T. K. Co. v. Caster, (Miss.) 5 So. Rep. 388. Running a railroad train within the limits uf a municipal corporation at a greater rate of speed than permitted by its ordinance is negligence per se, and the road is liable for the killing of stock occasioned by reason of such illegal rate of speed. Bowman v. Chi- cago &> A. K. Co.. 85 Mo. 533.— Following Karle v. Kansas City, St. J. & C. B. R. Co., 55 Mo. 476; Kelley v. Hannibal & St. J. R. Co., 75 Mo. 138.— Reviewed in Boyle v. Missouri Pac. R. Co., 21 Mo. App. 416; Windsor v. Hannibal & St. J. R. Co,, 45 Mo. App. 123. See also Robertson v. IVabas/i, St. L. &• P. R. Co., 84 Mo. 119. The railroad would still be liable when running in a city at a greater speed than by ordinance allowed, although the stock were running at large in violation of the city ordinance, provided they had escaped from the owner's inclosure without his knowl- edge or consent, and the defendant, by the exercise of ordinary care and prudence, could have stopped the train so as to pre- vent the killing. Bmvman v. Chicago &• A. R. Co., 85 Mo. 533.— Reviewing Spence v. Chicago & N. W. R. Co., 25 Iowa 139. The imposition of a fine by an ordinance for running a train at a rate of speed pro- hibited by the ordinance does not relieve the company so violating the ordinance of pecuniary liability for an injury done to another by so doing. On the contrary, the imposition of the fine prohibited the act, and such prohibition by a valid ordinance rendered such an act negligent per se, and the one doing the act liable for all injury caused thereby. Backenstoe v. Wabash, St. L. &> P. R. Co., 23 Mo. App. 148 ,• affirmed in 86 Mo. 492, i West. Rep. 743. (2) Illustrations.— PtooI that stock were killed on a street where there was nothing to obstruct the view for two hundred and fifty feet ; that the speed of the train, which was running at a rate prohibited by a city ord inance, was not slackened ; that no signals were given ; and that the trainmen were looking at a gathering of people at the side of the car, is suflicient to render the company liable. Colorado C. R. Co. v. Caldwell, n Colo. 545, i<)Pac. Rep. 542. Where stock is killed within the corporate limits of a village by a train that is running at a prohibited rate of speed, to relieve the company from liability there must be a pre- ponderance of evidence showing that the killing did not result from such wrong.ul act of the company. St. Louis, V. &> T. H. R. Co. V. Morgan, 12 ///. App. 356. Proof that stock were killed within city limits by a train running ac a prohibited rate of speed raises a presumption of negligence, yet it is error to instruct the jury that the company must show by a preponderance of evidence that the injury was not caused by the excessive speed of the train. Chicago 6- N. W. R. Co. V. Carpenter, 45 ///. App. 294. Where in an action for the killing of an animal at a street crossing the evidence showed that th», plaintiff was without fault or negligence, that the defendant's train was running at the time at a greater rate of speed than that allowed by the city ordi- nance, and that the bell was not rung while passing over said .street, it was a question of fact to be determined by the jury whether said failure to ring the bell or the rate of speed caused the injury to the animal. Ohio &> M. R. Co. V. Craycraft, 5 Ind. App. 335, 32 N. E. Rep. 297. A company was sued for killing a cow at a street crossing where cattle were permitted to run at large under an ordinance of the city. It appeared that the train at the time was running at a rate of speed much greater than the limit fixed by an ordinance, and there was a conflict of evidence as to whether a bell was rung or a whistle sounded. Held, sufficient evidence to show negligence, and a verdict for plaintiff would not be disturbed. Fritz V. First Div. St. Paul ^ P. R. Co., 22 Minn. 404, 19 Am. Ry. Rep. 404. 212. Rule where voiupaiiy can but does not fence.*— A company is liable for killing stock within city and village lim- its, under the laws of Indiana, if it appears that it was at a place where the company might have fenced but failed to do so. Pitts- burgh, C. Eng. R. Cos. 512, 1 12 I lid. 93, 13 N. E. Rip. 403. The evidence showed that the stock were killed between two streets of a city on de- fendant's track, which was not there fenced, though a fence might have been built there without interfering with any street or alley, or with the usual running of the road. Ilcld, that the company was liable. Indianapolis, P. . Hannibal & St. J. R. Co. 79 Mo. 336; Lane v. Chicago, R. L & P. R. Co., 18 Mo. App, 555 ; Vanderworker 7k Missouri Pac. R. Co., 48 Mo. App. 654. Quoted in Rhea v. St. Louis & S. F. R. Co., 84 Mo. 345- So that if stock are killed within the cor- porate limits of a town or city, at a place where the track might have been fenced, it is not necessary to prove actual negligence to hold the company liable. Vottitg- v. Nan- nibal W, R, Co. v. Thomas, 18 Ind. 215. Where the negligence of the owner of stock has contributed directly to an injury to his cattle, there can be no recovery with- out proof of gross carelessness or wilful mis- conduct on the part of the company injur- ing them ; and a mere mistake of judgment on the part of an engineer as to what meas- ures would best prevent an injury will not render the company liable. Fisher v. Far- mers' L. &* T. Co., 21 IVis. 73. Under the Maryland acts of 1838 and 1846, railroad companies are bound to show that the injury to animals was the result of in- evitable accident only in cases where the * See ante, 126, 148 ; /w/. 364, 373, 374, 306, 307, 483. t Contributory negligence of owner of cattle killed or injured by trains, see notes, 20 Am. & F..N(;. R. Cas. 473 ; i L. R. A. 449. ANIMALS, INJURIES TO, 214-216. 800 party complaining has noi contributed in any manner, by hia own negligence or vio- lation of law, to the injury complained of. Baltimore St* 0. R. Co. v. Lamborn, I2 Md. 257. Although a person has a right to use the highway for the passage of his cows to and from the pasture, yet he must use ordinary and proper care and diligence in driving them, having reference to the situation of the road and the manner '.» which it is used. Clark V. Syracuse Sf U. R. Co., ii Barb. (.V. Y.) 112. (2) Where company has failed to fence.* — Railroad companies are not liable by reason of a failure to fence where cattle go upon the track through the negligence of their owner. Marsh v. A'ew Vork &* E. R. Co., 14 Barb. {N. Y.) 364.— Followed in Halloran V. New York & H. R. Co.. 2 E. D. Smith (N. Y.) 257. Under the New York act of 1 850, requiring the owners of railroads to properly fence the same, a foreign railroad company that has the privilege of running its cars over the track of a domestic corporation is not liable for killing stock thereon by reason of a failure to fence. There can be no common- law recovery in such case ; and the owner's contributory negligence may defeat a recov- ery. Shanchan v. New York &• N, H. R, Co., 10 Abb. Pr. {N. Y.) 398. In an action against a company for injury to stock occasioned by failure to erect or to maintain fences on the line of its road, as in other actions for negligence, contributory negligence of the plaintiff is a defense. Curry V. Chicago &> N. IV. R. Co., 43 IVis. 665.— Quoted in Murphy v. Chicago & N. W. R. Co., 45 Wis. 222 ; McCandless v. Chicago & N. W. R. Co., 45 Wis. 365. (3) Where company has failed to repair.] — A railroad company is not liable for in- juries to live stock that go upon the track over a fence that is allowed to become de- fective, where it appears that the owner's negligence contributed to the injury. Jones v. Sheboygan &' F. du L. R. Co., 42 Wis. 306. —Reviewed in Murphy v. Chicago & N. W. R. Co., 45 Wis. 222. — Martin v. Stewart, 38 Am. &* Eng. R. Cas. 316, 73 Wis. 553, 41 N. W. Rep. 538. 214. Effect of uegligeuce of owu- er*8 servan t.^— One whose team is injured •Seea«/^ 122-130. f Seeow/*-, 140-151. X See ante, 30, 37. I D. R. D.— 14. by a collision with a train at a railroad cross- ing while it is in the charge of his servant, is responsible for the conduct of the servant at the time of the accident ; and if he did not exercise due care the owner is charge- able with such want of care, and cannot re- cover. Louisville, N.A.&*C.R. Co. v. Stom- tnel, 126 Ind. 35, 25 N. E. Rep. 863. 215. Effect of drunkenness of per- sou in charge.— Unless the agents of a company while operating a train are guilty of gross negligence, the company is not lia- ble for a horse killed at a place on the track where it has no right to be, and it appears that the man in charge of the horse was drunk and that the employer had notice of his bibulous propensities. Cleveland, C, C. &* St. L. R. Co. V. Ducharme, 49 ///. App. 520. A company is not liable for killing a horse where the owner has loaned it to a man who got drunk and took the horse along a highway, where it intersected the track, and thence on the track, where the horse be- came frightened and ran onto a trestle, where it was caught and killed ; and the fact that the person who borrowed the horse had voluntarily made himself drunk could not affect the liability of the company. Welty v. Indianapolis &• V. R. Co., 105 Ind. 55, 24^»/. &- Eng. R, Cas. 371, 4 N. E. Rep. 410. Horses hitched to a sleigh, and in charge of a driver who has become intoxicated and fallen into a drunken stupor, are not, when wandering about on the prairie, "stock run- ning at large " within the meaningof § 1289 of the Code ; and for the killing of such horses by a passing train at a place where it had the right to fence its track but did not, defendant was not liable under said section. Grave v. Burlington, C. R. &* N. R. Co., 75 Iowa 163, 39 A'; W. Rep. 248.— Distinguish- ing Hinman v. Chicago, R. I. & P. R. Co., 28 Iowa 491. 216. What amounts to negligence on part of owner, generally.— Negli- gence in managing and restraining domestic animals is the absence of such methods and means of care as would be employed by men of ordinary prudence. Chicago, St. L. &* P. R. Co. v. Fenn, 3 Ind. App. 250, 29 A'; E. Rep. 790.— Quoting Dennis v. Louisville, N. A. &C. R. Co.. 116 Ind. 42. One who goes off the highway and at- tempts to avoid an approaching train by crossing the track at a private crossing, can- 210 ANIMALS, INJURIES TO, 217, 218. ■t izt not recover (or a hurac ihut is killed by rea- son of getting his foot fast in a hole in the track, which detained him until struck by the train. Cornell v. Skaneateles R. Co., 40 A', v. S. K.i,6i Hun 618, 15 N. Y. Supp. 581.— Reviewing Spooner v, Delaware, L. & \V. R. Co., IIS N. Y. 22, 23 N. Y. S. Rep. 554- Where a cow is turned out with a block and chain fastened to her, the owner can- not recover if she be killed on the track by reason of such block and chain preventing her escape. Guess v. Soutli Carolina R, Co., 30 So. Car. 163, 9 S. E. Rep. 18. Though a company may have been negli- gent in failing to erect and maintain neces- sary fences and cattle-guards, yet if a party, with full knowledge that there are no fences or cattle-guards, turns his horse out where he can go on the track, he cannot recover if the horse is killed by a passing train, where there is no negligence on the part of the company in the management of the train. Trow v. Vermont C. R. Co., 24 Vt. 487. One who, knowing that a severe storm on Saturday had prostrated fences, on Monday evening turned his cattle upon uninclosed lands without inquiry as to whether the railroad fences abutting thereon were un- injured, was guilty of such contributory negligence as would defeat his recovery for injuries received by such cattle on the rail- road track; and such facts appearing from his own evidence, a nonsuit should have been granted. Carey v. Chicago, M. &* Si. P. R. Co., 20 Am. &• Eng. R. Cas. 469, 61 Wis. 71,20 N. IV. Rep. 648. 217. Abandonment or wilful ex- posure. — An owner who knowingly aban- dons his animals to destruction by passing trains, or wilfully exposes them upon the track of a railroad company, cannot recover, although the company may not have per- formed the statutory duty of fencing its track. Welly v. Indianapolis &* V. R. Co., 105 Ind. S5, 24 Am. &* Eng. R. Cas. 371, 4 N. E. Rep. 410. Should a person voluntarily place his ani- mal upon the track, it seems he could not recover, but might, perhaps, be regarded as having abandoned his property. Indian' apolis &* C. R. Co. v. Townsend, 10 Ind. 38. — Followed in Jeflersonville R. Co. v. Applegate, 10 Ind. 49; Jeflersonville R. Co. V. Dougherty, 10 Ind. 549; Indianapolis & C. R. Co. V. Paramore, 12 Ind. 406; Hart v. Indianapolis & C. R. Co., 12 Ind. 478; New Albany & S. R. Co. v. McAhren, 12 Ind. 552 ; New Albany & S. R. Co. v. Beeler, 13 Ind. 560; Indianapolis & C. R. Co. z/. Mc> Kinney. 24 Ind. 283. Where the owner of animals voluntarily places them on the track, or purposely ex- poses them to danger, no recovery for their injury can be had. Missouri Pac. R, Co, v. Roads, 23 Am. Q. R. Co. v. Dannel, 48 ///. App. 251. 220. Fniliire to rebuikl or repair- feiioes.*— Plaintiff turned his colt into a pasture beside a railroad track knowing that there was nothing to prevent the animal from going upon the track, and using no precaution to prevent it from doing so by repairing or rebuilding the railroad fence, which had been destroyed by lire, which, under the statute, he had a right to do, and the animal went upon the track and was killed. Held, such contributory negligence as to defeat a recovery. The fact that he had no other pasture was of no importance. »Sce«w/^ 140-151. Martin v. Stewart, 38 Am, ^ Eng, R. Cas. 316, 73 Wis. 553. 41 A'. IV. Rep. 538- Where cattle break through a fence on the side of a railroad, and the owner repairs it with defective materials, but it is apparently .sufficient, and his cattle again break through the same place and are killed, and he knew that the fence was defeciive, and failed to notify the company — /leld, that he was guilty of negligence and could not recover. Chicago, B ijr' (J. R. Co. v. Seirer, 60 ///, 295. Under the Ohio act of March 35, 1859(1. S. & C. 331), where a railroad fence forms the boundary of an inclosed field, it is the duty of the landowner, as well as the rail- road company, to maintain the fence in proper order. If the landowner knows that such fence is insufficient, and, omitting to repair it, turns his stock into a field which it incloses, and by reason of such insufficiency the stock is killed upon the track without fault of the company in run- ning its trains, the landowner is guilty of such contributory negligence as will prevent a recovery by him. Sandusky &• C. R. Co. v. S/oan, 27 Ohio St. 341, 11 ^lin. Ry. Rep. 264. — FoLLowKi) IN Dayton & M. R. Co. v. Miami County Inlirniary, 32 Ohio St. 566. Where a fence, constructed by an indi- vidual and landowner; serves as a partition fence between a railroad track and the in- closed fields of such individual owner, but not so divided that each owner is charged with maintaining in repaira distinct portion thereof, the railroad company and indi- vidual landowner are each under equal ob- ligations to keep and maintain the entire fence in repair until so divided, and if the landowner, knowing the partition fence to be out of repair, turns his stock into a field inclosed by such defective fence, and, by rea- son of its insufficiency, his stock go upon the railroad track and are killed by a passing train run without negligence, such land- owner is chargeable with contributory neg- ligence, and cannot recover for the loss. Dayton &• M. R. Co. v. Miami County Infirm- ary, 32 Ohio St. 566.— Following Sandusky & C. R. Co. V. Sloan, 27 Ohio St. 341.— Distinguished in Busby 7/. St. Louis, K. C. & N. R. Co., 81 Mo. 43. Where the owner of stock knows that the fastening of a gate between his lands and a railroad track is insecure, and takes no measures to inform the company, nor to render it safe himself, cannot recover if his stock pass through it and are injured on 212 ANIMALb, INJURIES TO, 221,222. "I! « ~ *, iM the track. Chicago &* A. Ji. Co. s.Buck, 14 ///. App. 394- 221. Leavltiir gato open or burH dowu.* — A railroad company that is with- out fault itself is not liable tor injuries to tttock that go upon the track through a gate left open by a landowner. Hook v. Worcester &'N. A\ Co.. 58 A'.//. 351. Where gates arc allowed at farm crossings for the convenience of an adjoining land- owner, he is bound to keep them closed, and if he fails to do so, and his animals pass through them to the railroad and arc in- jured or killed, he cannot recover from the company on the ground that it has neg- lected to fence its track as required by the statute. In such case, and as to such land- owner, the company is not bound to main- tain cattle-pits at such crossing. Bon// v. Kwumnlle &• T. //. R. Co., 23 Am. &» Eng. K. Cas. 200, 100 /hi/. 301. — Followed in Louisville, N. A. & C. R. Co. v. Goodbar, 102 Ind. 596. Where the owner of land is permitted for his own convenience to maintain drawbars or gates in the fence along the line of a rail- road, the company is not liable for dam- ages done to his stock passing onto the track through such bars or gates, by reason of his own neglect or default in maintaining them. Indianapo/is, P. &^ C. R. Co. v. S/ttmer, 17 Ind. 295.— DiSTiNtiUiSHED IN Bartlctt V. Dubuque & S. C. R. Co.. 20 Iowa i88. Quoted in Bond v. Evansville & T. H. R. Co., 23 Am. & Eng. R. Cas. 200, 100 Ind. 301. The tenant of the landowner using the crossing is subject to the same rule. In- dianapolis, P. &- C. R. Co. V. Shimer, ly Ind. 295. Where a landowner leaves a gate open between his lands and a railroad track, neither he nor his lessees nor employes can hold a railroad company liable for a horse that passes through the gate and goes upon the track and is injured. Diamond Brick Co, V. Neiv York C. &• H. R. R. Co., 58 Hun (N. y.) 396, 34 N. y. s. R. 637, 12 A. y. Supp. 22. The owner of stock cannot recover from a railroad company where his son leaves a gate open through which they pass onto the track and are injured. Richardson v. Chicago < its failure to fence, ration v. West End iXarnrw Gallic A*. Co., 14 Mo. App. 589. One driving an unbroken or vicious horse, or one easily frightened by a locomotive, alon^ a public road running side by side with a railroad, docs so at his own peril ; the right of the company to move its trains on its road is as high as that of the indi- vidual to use the public road. Philadclpliia, ir. &* li. R. Co. V. Stini^er, 78 Pa. St. 219. Near where the cattle were killed was a small brook over which the company had built a culvert ; below the culvert was the plaintiff's pasture in which the cattle were kept, and across the creek in this pasture he had made a fence of long poles. A freshet brought down driftwood, which floated through the culvert and against the fence, and the company aided it through the cul- vert to prevent its accumulating above to an unsafe amount. At sunset the plaintiff knew of the exposed situation of his fence but would not remove his cattle, and in the night the fence was swept away, the cattle went upon the road, and were killed. /Md, that the plaintiff could not recover. Indian- apolis &* C. A'. Co. v. Wrig/it, 1 3 Ind. 2 1 3. A farmer turned his stock loose upon the track of a railroad on Sunday, not expecting any trains to pass. Hearing a train ap- proaching, he got upon the track to drive his stock off; and, although the train was in plain sight from the time it was several hun- dred yards off, he failed to escape in time, and was killed, /hid, that he had been guilty of such conduct as precluded all right of recovery, the railroad company not being in fault. Schittenhchn v. Louisville i5^ N. K. Co., (Ky.) 19 Ant. (S- En^^. R. Cas. 1 1 1.— Dis- tinguished IN Bostwick V. Minneapolis & P. R. Co., 2 N. Dak. 440. The charter of a railroad company not obliging them to fence the road against ad- joining lands, unless requested so to do by the owners, they agreed with the owner of a certain adjoining piece of land not to fence the road against his land, and a cow placed upon the above-mentioned land strayed on- to the track and was killed by the passing of the cars. NM, that the owner, having contributed, by his own neglect in permitting iIhtkw to |)asM II pi Ml till' riiad.lu its destruc- tion, was not eiititkd to damages for its loss, and that the charge of the court, that. " if the cow was killed by the neglect of the defendants to use ordinary care and skill in the common and ordinary use of the lands for railnjad purp(jses, then the defendants would be liable to the owner for damages, ' was erroneous. 7'o7i'ir v. Providence &* W. R. Co., 2 A". /. 404.— KKVii;wiN(i Tonawanda R.Co. V. Munger, 5 Den. (N. Y.) 255.— Dis- Ai'i>K(n'Ki) IN Cranston v. Cincinnati, H. \' D. K. Co., I Handy (Ohio) 193. 22:1. Turning cattlu Into rifrlit of way. — Where one habitually turns his lu)rses into the right of way of a railroad company, through a gate maintained for his accomodation, in order that they may reach a pasture-field adjoining the right of way, between which and the latter there is no fence, he cannot recover their value if killed. /■'/. Wayne, C. &^ L. R. Co. v. Woodward, 31 Am. &• Enif. R. Cas. 546, 112 Ind. 118, 11 ll'est. Rep. 101. 13 A'. A". Rep. 260.—QVOI- INO Loui-sville, N. A. & C. K. Co. v. Good- bar, 102 Ind. 596. — DlSTINUUiSHKD IN Heller 7'. Abbot, 79 Wis. 409. 224. IlriviiiK ciittlu upon truck.— If one wantonly or carelessly drives stock upon the track of a railroad he is guilty of contributory negligence, and, if the stock is injured, cannot recover in an action against the company. Forbes v. Atlantic &* N. C. R. Co., 76 A^. Car, 454, 14 Am, Ry, Rep. 313. 225. I>riviiig colts along right of way. — One who drives colts along a rail- road track which is fenced cannot recover if they are injured by a passing train without negligence on the part of those in charge of it. Davidson v. Central Iowa R. Co., 35 Am. &^ Eng. R. Cas. 158,75 Iowa 22, 39 A'. W. Rep. 163. 220. Failure to look and listen be- fore driving cattle [over crossing.— A person who drives his cattle over a rail- road crossing without looking or listening is guilty of negligence ; but where the cattle are killed by a train, and it is shown that the company's employes, by the use of ordinary care and diligence, could have avoided the injury after discovering the danger, a recov- ery cannot be defeated on account of the owner's contributory negligence. Wooster v. Chicago, M. &> St. P. R, Co,, 35 Am.&'Eng. R. Cas. 1 52, 74 Iowa 593, 38 A^. W. Rep. 425. —Following Morris v. Chicago. B. & Q R. Co., 45 Iowa 29. iH ANIMALS, INJURIES TO, tJ27-2;J2. :s Si is Plaintiff's wagon was beiiiy'drivcn by his son along a street, anotlierman sitting beside him, and in attempting to pass over a rail- way crossing with which both were familiar a locomotive struck the wagon, by which it and the horses were injured. It appeared that neither of them was looking out for or thinking of the train ; and it was not un- til they were within fifteen yards of the track that the man saw the train, when he sharply told the son to put on the whip, but he said the son appeared confused and did nothing ; he then attempted to get the whip and whip the horses across, but it was too late. The son acknowledged having heard what the man said, but said he did not un- derstand him. The weight of evidence went to show that the whistle was sounded and bell rung, and that the train was not going more than six or seven miles an hour. //(■/Eng. R. Cas. 248, 81 Ind. 264. 228. Leading liorse on traulc when train iff coming. — Plaintiff working upon a bridge across defendant' ailroad track, with knowledge of an appr. aching train, called to his little boy, eleven years old, to lead his horse across the track. In doing so the horse, tinough fright, escaped and got upon the rrack and was killed by the train. The proof failed to show negligence in the company. Held, that a verdict against the company for the value of the horse could not be sustained ; that plaintiff was guilty of great negligence on his part; that the law did not require a railroad to ring a bell at such a place, it being only a farm crossing. Toledo, P. &• W. R. Co. v. Head, 62 ///. 233. 220. Leaving horse unhitched near tlie track.— Where the plaintifl left his horse unguarded and unhitched, and in close proximity to a railroad track, upon which, as he knew, it was morally certain a train would pass within a few feet of where his horse was standing, with another train standing on the track not more than fifty feet away, ready to pull out, and the thoroughfares in the immediate vicinity blockaded with horses and vehicles, a re- covery was denied, although the defend- ant was guilty of negligence in failing to ring the bell, in failing to place a man on the rear end as it backed up at night, and in failing to place any head or other light at such rear etid. Louisville &* N. R. Co. v. Eves, I Ind. App. 224, 27 A^. E. Rep. 580.— Quoting Deville v. Southern Pac. R. Co., 50 Cal. 383. Plaintiff's servant drove to one of defend- ant's stations, and, leaving the horse un hitched, went into the station. The horse was frightened by the whistle of an ap- proaching train, ran upon the track, and was killed. Held, that there could be no re- covery. Edwards v. Philadelphia <&* R. R. Co., 148 Pa. St. 531, 23 Atl Rep. 894. 230. lliding unbridled horse upon the track.— Sending a boy to ride a horse without a bridle is such negligence as will defeat a recovery where the horse goes upon a railroad track, and, by reason of not having a bridle, the boy is unable to move him in time to avoid a collision with the train. Wabash, St. L. &* P. R. Co. v. Krough, 13 ///. App. 431- 231. Bushing cattle across track in front of approaching train. — In actions based on negligence there can be no recovery where the plaintiff and defend- ant stand in pari delicto. So held, in an action where it appeared that plaintiff, who was driving cattle, was told by a companion that he believed a train was approaching, and replied that he thought not, and that they would " rush " the cattle over the track anyway, and where some of them were killed by a train running without the re- quired signals. Ohio &• M. R. Co. v. Eaves, 42 ///. 288. 232. Stoppf ngr team close to track when train is approaching.— It is the duty of those in charge of a team unaccus- tomed to trains and easily frigiitened, to exercise proper care when trains are ap- proaching, and they should not stop the team close to the track ; and if they do so the railroad company is under no obligation to provide against their failure to exercise proper care. Hargis v. St. Louis, A. &• T. R. Co.. 71 Tex. 19, 12 5. W. Rep. 953. ANIMALS, INJURIES TO, 233,234. 215 d. What Is Not Contributory Negligence. 233. What does not amount to negligence on part of owner, gener- ally. — The plaintiff, who sued to recover for cattle killed by defendant's train, having, as he had a right to do, built his pasture-fence and located the gate for his cattle on his own land, the maintaining and use of this fence and gate did not constitute contrib- utory negligence on his part, and the court committed no error in failing to instruct the jury on contributory negligence. Chatta- nooga, R. A. R. Co., 38 Am. &^ Eng. R. Cas. 287, 41 Minn. 101, 42 N. //'. Rep. 924. 236. Escape of animal from se- curely-fenced inclosure.— Negligence cannot be imputed to a person simply from the fact that his beasts have escaped from his well-fenced field onto a railroad track. Spinner v. New York C. &^ H. R. R. Co., 67 N. v. 133; ajgirming 6 Hun Coo. — Fol- lowing Corwin v. New York & E. R. Co., 13 N. Y. 42.— Quoted in White v. Utica & B. R. Co., 15 Hun(N. Y.) 333. One who places a horse in an inclosure securely fenced along the line of a railroad is not chargeable with contributory negli- gence because the horse leaps the fence and escapes, unless it appears the horse was one that ordinary fences would not confine. Dennis v. Louisi>ille, N. A. Eng. R. Cas. 155, 100 A^. Car. 230, 5 S. E. Rep. 734. 239. Turning cattle into fields 'vliere railroad fences are defective.! -Where a statute makes a railroad com- pany liable for stock killed by reason of lit 'ing to fence its track, it is no defense to an action for killing stock that the owner turned his stock out knowing that the fence was down or defective. Bellefontaine R. Co. v. Reed, 33 Ind. 476. It is not conclusive evidence of contrib- utory negligence for one to allow his do- mestic animals to run in his pasture adjoin- ing a railroad, although he knew that the *See/o.f/, 281. Contributory negligence in placing cattle in unfenced field, see notes, 15 Cas. 540 ; 20 Id. 468 tSee/«/, 281. Am. & Eno. R. dividing fence, which tlie railroad company was bound to maintain, was defective. Evans v. St. Paul (3~> S. C. R. Co., 30 Minn, 489, 16 A^ W.Rep. 271. Where a cow is sent by the owner 'o a lot adjoining a railroad track in charge of a boy who permits her to go through an open- ing temporarily made by the railroad com- pany while making certain improvements, proof that the owner knew that the fence was open will not excuse the company for kill- ing her. Brady v. Rensselaer &• S. R. Co., i Hun {N. y.) 378. 3 T. &- C. 537. It is not contributory negligence for the owner of hogs to turn them into a field adjoining a railroad track which he knows the company hiis not fenced as required by statute. Cleveland, C, C. &• I. R. Co. v. Scudder, i^Am. &^ Eng. R. Cas. ^61, 40 0/tio St. 173. — .Approving Rogers v. Newbury- port R. Co., I Allen (Mass.) 16; Shepard v. Buffalo, N. Y. & E. R., 35 N. Y. 641 ; Toledo, W. & W. R. Co. V. Cory, 39 Ind. 218; Ham- mond V. Chicago & N. W. R. Co., 43 Iowa 168; McCoy V. California Pac. R. Co., 40 Cal. 532; Wilder v. Maine C. R. Co., 65 Me. 332. Following Pittsburgh, C. & St. L. R. Co. V. Smith, 38 Ohio St. 1.10. Under the Vermont statute, Rev. Laws, § 3184, one is not guilty of contributory neg- ligence in turning his cattle into his pas- ture, although he has knowledge that the division fence of an adjoining landowner is insufficient, and that if his cattle should escape into such owner's field they would be liable to injury ; and in an action to re- cover for injuries to the plaintiff's cattle evidence is not admissible in behalf of the defendant to prove such knowledge. Eddy V. /Finney, 60 Fi. 554, 15 All. Rep. 198. c. Comparative Negligence. 240. In Georgia.— Where neither the railroad company nor the owner of stock is required to fence, but the rights of each on uninclosed lands are the same, if stock be injured on such lands by passing trains the diligence of both the owner and the railroad company is material. Georgia R. 6- B. Co. V. Neely, 56 Ga. 540. In an action for killing a mule, the con- tributory negligence of plaintiff, however slight, will count against him in mitigation of damages, but the plaintiff is only bound to exercise ordinary care or reasonable dili- gence. Georgia R. &• B. Co. v. Neely, 56 Ga. 540.— Approved in Western & A. R. 218 ANIMALS, INJURIES TO, 241-246. ill Co. V. liloomingdale, 74 Ga. 604. Distin- guished IN Georgia R. Co. v. Thomas, 68 Ga. 744- 241. Ill Illinois.— Whether permitting male aniniais lu run at large, whicli are in- jured by trains, is contributory negli},'ence, depends, lirst, upon whether permitting them to run at large was a proximate or only a remote cause of the injury ; and if it was a proximate cause, then, secondly, whether such neglijjenci; of the owner was slight and that of the company gross. Rockford, R. I. &^ S/. L. R. Co. v. /ns/i. 72 III. \o\. It appearing from the evidence that tiie coir was on the railroad track when a train of several cars approached, and the engine- driver whistled for putting on brakes, which was not done, and that if the brakes had been applied, in obedience to the signal, the train could have been controlled so as to prevent the accident, and no explanation was made why the brakes were not applied — held, that, even if the plaintiff was negli- gent in permitting tlie colt to run at large, his negligence was slight and that of the defendant gross, and that plaintifT was enti- tled to recover. Toledo, VV. &^ IV. R. Co. v. McGinnis, 71 ///. 346.— Distinguishing Rockford. R. I. & St. L. R. Co. v. Linn, 67 111. 109. 242. In Wisconsin. — An ownerof live stock who is guilty of negligence in permit- ting them to go upon a railroad track can- not recover from the company damages for an injury thereto, on proof showing slight negligence on the part of the company. Calpin V. Chicago Ssr^ N. W. R. Co., 19 Wis. 604. 2. Animals Running at Large.* a. When Owner May Recover. 243. Rule where animal is law- ftilly riinniiiiir ft* larjfe— Alabama.— One living on the line of a railroad that runs through his pasture is guilty of no negli- gence in allowing his stock to run upon his own pastures or upon the commons. He is not required in Alabama to fence against *Stcante, 53-00, 152-150,187-206; />w/, 288, 337,411. Contributory negligence in allowing animals to run at large, see notes, 1 3 Am. & Eng. R. Cas. 578, 584 ; 15 Id. 557; 20/ Eng. R. Cas. 549, 71 Ala. 487. 244. California. — In California the owner is not guilty of negligence in al- lowing his horse to run at large. Waters V. Moss, 12 Cal. 535. Permitting animals to run at large near a railroad is not such contributory negligence as to prevent a recovery from the company which failed to use ordinary precautions and reasonable care and diligence to avoid injuring them. Richmond v. Sacramento Val- ley R. Co., 18 Cal. 351. 245. Florida.— A company is lia- ble for injuring or killing cattle or other live stock upon its track by its trains when- ever such killing or injury is the result of negligence upon the part of the agents operating the train. The fact that the owner of the live stock permits them to run at large does not constitute contributory neg- ligence. Savannah, F. &^ W. R. Co. v. Gei- ger, :.g Am. &* Eng. R. Cas. 274, 21 /7a. 669, 58 Am. Rep. 697. 246. Illinois. — Owners of stock killed by a train are not chargeable with con- tributory negligence because the stock are running at large at the time. Individuals may permit their stock to run on the com- mons and highways of the country, and in doing so they are guilty of no wrong. Chi- cago. B. &• Q. R. Co. V. Cauffman, 38 ///. 424. —Distinguished in Rockford, R. I. & St. L. R. Co. V. Linn, 67 111. 109. It being lawful for animals to run at large upon the commons, the owner of a cow, who lives in the country, and turns her out upon the commons, whence she strays upon a railroad, at a public crossing, and is killed, will not be guilty of negligence. Rockford, R. I. a 103.— Distinguished in Connyers v. Sioux City & P. R. Co., 78 Iowa 410, 43 N. W. Rep. 267. (2) Under § 1289 of the Code.* — Allowing swine to run on one's own land in close proximity to an unfenced railroad track is not that "wilful act of the owner" which, under § 1289 of the Code, exonerates the railroad company from liability in case they go on the track and are killed. Lee v. Min- neapolis (Sm St. L. R. Co., 20 Atn. &* Eng. R. Cas. 476, 66 Io7va 1 3 1 , 23 A'. IV. Rep. 299. The mere negligence of the owner of a team injured while running at large will not defeat his recovery. The statute provides that the company shall be liable unless the damage was caused by the wilful act of the owner or his agent. Inman v. Chicago, M. &• St. P. R. Co., 60 Iowa 459, 15 A^. W. Rep. 286. An instruction that " if plaintiff know- ingly allowed his horse to be upon and to frequent the depot and station grounds of defendant, where it was not required to fence, and where there was danger of the horse being struck by the trains of defend- ant, he is guilty of contributory negligence, and cannot recover in this action," i.e., for double damages, under Iowa Code, § 1289 — held, properly refused. Miller v. Chicago &^ N. W. R. Co., 59 Iowa 707, 13 A^. W. Rep. 859.— Distinguishing Van Horn v. Bur- lington, C. R. & N. R. Co., 59 Iowa 33. Following Kuhn v. Chicago, R. I. & P. R. Co,, 42 Iowa 420. 240. Kansas.— In counties where no order has been made by the board of county commissioners regulating or pro- hibiting the running at large of animals, in- dividuals may permit their stock to run on public highways, and in so doing they are not necessarily guilty of negligence. Mis- souri Pac. R. Co. v. Wilson, 1 1 Am. &• Eng. R. Cas. 447, 28 A'an. "^37.— Distinguishing Union Pac. R. Co. v. Rollins, 5 Kan. 167. 250. Mississippi.— An owner of domestic animals in Mississippi has the right to pasture them on the commons of incor- porated towns, in the absence of local regu- lations to the contrary, and such conduct, though dangerous and reprehensible, does not diminish his right to compensation from *Seea/(/^ 217,218. ANIMALS, INJURII'S TO, 251-254. Ik those who inji're them. Cliicago, St. L, &* A'. O. A'. Co. v./lvics, 1 1 Am. &• Eng. R. Cas. 450, 59 M/ss. 465. But in so doing he takes the risk of their loss or injury by unavoidable accident, such as going upon a railroad track. Rai/ordv. Mississippi C. R. Co., 43 A/iss. 233. Me»i- phis ' C. R. Co. V. Bhikeney, 43 Miss. 218. Persons in Mississippi living near rail- roads have the same right as those living at a greater distance to turn their cattle upon the range, but in doing so they assume uv increased danger of accidents that cannot be avoided. Xe^v Orhans,J. &^ G. iX. R. Co. v. Field, 46 Afiss. 573, 2 Am. Ry. Rep. 439. 251. Missouri.— It is not negli- gence in Missouri to permit stock to run at large near a railroad. Nolon v. Chicago &» A. R. Co., 23 Mo. App. 353. By the law of Missouri the owner of ani- mals is not bound to confine his stock within his own inclosures, and he is guilty of no negligence in not confining them. Hannibal &* St. /. R. Co. v. Kenney, 41 M ). 271. It is no defence to an action under § 38 of Missouri act for killing stock, that the plain- tiff allowed his animals to run at large upon the highway near the railroad. Turner v, Kansas City, St. J. &> C. B. R. Co., 19 Am. (S- Eng. R. Cas. 506, 78 Mo. 578.— Quoted IN Apitz V. Missouri Pac. R. Co., 17 Mo. App. 419. For the owner has the lawful right to turn out his horse upon the uninclosed lands adjoining the railroad. Tarwater v. Hannibal Eng. R. Cas. 619, 19 Oreg. 291, 24 Pac. Rep. 233. The act of 1887, §§ 4044-4049, Oregon Code, respecting cattleowner's right to re- cover for stock killed upon unfenced rail- road track by a moving train, does not relieve the owner from the duty of keeping ills stock within reasonable confines. He owes a duty to the public, which requires him to use reasonable efforts to prevent them from going where they will imperil the safety and security of persons and property ; and while he is allowed to depasture his horses and cattle upon "the common, unfenced range " without being chargeable with con- tributory negligence in case tliey are killed or injured as mentioned, yet he is not per- mitted to turn them out to roam wherever their instmcts incline tliem. Hindman v. Oregon R. &• N. Co., 38 Am. ^^ Eng. R. Cas. 310, 17 Oreg. 614, 22 Pac. Rep. 1 16. 250. South Carolina.— An owner who permits his horse to roam at large over uninclosed land is not guilty of such negli- gence as will embarrass his recovery should the horse be killed by the negligence of an- other. Murray v. South Carolina R. Co., 10 Ri.h. {So. Car.) 227. Testimony that the cow was turned out into the street to graze on the commons near the railroad track, that she was found lying in the ditch near the track with two legs broken, and that the land on both sides of the track at that point belonged to the de- fendant, is sufficient evidence to entitle the plaintiff to have his case submitted to the jury, and does not show contributory negli- gence on the part of plaintiff. Rowe v. Greenville &* C. R. Co., 7 So. Car. 167. 257. Tennessee.— Tennessee stat- utes recognize the running out of stock on the commons as lawful, and the fact that the owner of an animal allowed it to be out of his inclosure cannot be relied on either to defeat the action or in mitigation of dam- ages. Memphis &* C. R. Co. v. Smith, 9 Heisk. ( Tcnn.) 860, 20 Am. Ry. Rep. 60. 258. Texas.— Under the law of Texas it is not contributory negligence for an owner to permit his cattle to run at large within the corporate limits of the city where there is an ordinance which ex- pressly authorizes it. Texas f malice or wilfulness on de- fendant's part. McCandless v. Chicago &* N. W. R. Co., 45 Wis. 365, 19 Am. Ry. Rep. 374.— Quoting Curry 7'. Chicago & N. \V. R. Co.,43 Wis. 665; Chicago & N. W. R. Co. V. Goss, 17 Wis. 428.— Distinguished IN Heller v. Abbot, 79 Wis. 409. 203. Rule where auiiiialH are un- lawfully running at large — Alabama. —The Alabama act of February 28, 1881, making it unlawful for stock to run at large in certain designated portions of the state, and making the owner liable for all damages committed by them on the lands of others, and niaking him liable for a misdemeanor if he knowingly permits his stock to run at large, does not change the rule as to con- tributory negligence where he sues to re- cover from a railroad company for injuries thereto, Alabama, G. S. R. Co. v. Mc- nil m m 22i ANIMALS, iXJLUiKS TO, 'JiU li07. *•• "K, ■ Alpine, \\ Am, &* Eng. R. Cas, 544, 71 A/a. 545- a«4. Colorado.— Although the stat- uic makes companies liable in damages to tile owners of domestic animals killed or in- jured by their trains, yet where such animals are, at the time of the accident, running at large, contrary to the provisions of another section of the statute, and tiie injury thereto results without wilful or gross negligence on part of the railroad company, it is not liable in damages. Denver &^ R, G. R.Co. V. S(enmri, i Colo. App. 227, 28 Pac. Rep. 658. 205. Illinois.— A company has a right to the use of its track free from ob- structions caused by animals going thereon, and animals which are permitted to stray on the track are thereat the risk of their owner. Central M. T. R. Co. v. Rockafellow, 17 ///. 541. — Distinguished in Toledo, W. & W. R. Co. V. Furgusson, 42 111. 449. Over- ruled IN Illinois C. R. Co. v. Middles- worth, 46 III. 494. The owner of a horse, who voluntarily permits it to run at large contrary to law, cannot recover of a company for killing the animal by one of its trains, upon the ground that such company has failed to fence its track at the place where the animal is killed. In such a case, however, the railway company will not be relieved from its duty to observe all reasonable precautions to prevent injury to the property of plaintiff. Peoria, P. &* J. R. Co. v. Champ, 75 ///. 577. —Distin- guished IN Chicago & A. R. Co. v. Kellam, 92 111. 245. Quoted in Chicago & N. W. R. Co. V. Taylor, 8 111. App. 108; Cleveland, C.,C. &St. L. R. Co. V. Ahrens, 42 111. App. 434- 266. Indiana.— One who voluntarily permits his cattle to run at large near a railroad where it is not required to be fenced is guilty of contributory negligence, if the cattle stray upon the track and are killed by the negligent management of the train, and he cannot recover. Wabash, St. L. &* P. R. Co. v. Nice, 23 Am. &* Eng. R. Cas. 168, 99 /nd. 1 52. Cincinnati, H. &* D. R. Co. v. Street, 50 Ind. 225. However, the rule is otherwise where the cattle are wilfully killed. Jeffersonville, M. &* I. R. Co. V. Underhill, 48 Ind. 389. Jeffersonville, M. 6« /. R. Co. v. Adams, 43 Ind. 402.— Explaining Jeffersonville. M. & I. R. Co. V. Underhill, 40 Ind. 229. Following Indianapolis, C. & L. R. Co. v. Harter, 38 Ind. 557. - Ft. Wayne, C.&^L. R, Co. V. O'Keefc, 4 Ind. App. 249, 30 A'. E, Rep. 916. Chicago, St. L. &> P. R. Co. v. A'ash, I Ind. App. 298, 27 A'. E. Rep. 564. At common law the owner of animals is obliged to keep them on his own grounds, and is a wrongdoer if he suffers them to stray upon the grounds of others, which, as a rule, is the law of Indiana. So, where there is no order of the county commission- ers determining what animals may run at large, as prescribed by statute, and the owner of live stock knowingly permits them to run at large in the immediate vicinity of a railroad where fencing is not required, he is guilty of negligence, and cannot recover for an injury thereto without proof of wan- tonness in the management of the train. Indianapolis, C. &> /.. R. Co. v. Harter, 38 Ind. 557.— Followed in Jeffersonville, M. & I. R. Co. V. Adams, 43 Ind. 402. Re- viewed IN Jeffersonville, M. & I. R. Co. v. Huber, 42 Ind. 173. — Cincinnati, W. &* M. R. Co. v. Hiltzhauer, 99 Ind. 486. Ft. Wayne, C. &- L. R. Co. v. O'Keefe, 4 Ind. App. 249, 30 A^. E. Rep. 916. Chicago, St. L. ',9-1: $ •«» to go at large upon tiie public streets and stray upon u ruilroad cannot recover for injuries to the horse happeninfj thn^ugh the negligence of the railroad company, the neg- ligence of both parties in such case having contributed to the injury, Hulloran v. AVw York&'H. K. Co., 2 E. D. Smith (A'. )'.) 257. — FoiXowiNii Marsh v. New York & K. R. Co.. 14 Barb. (N. Y.) 364.— F()i.l.owKi) IN Van Horn v. Burling- ton. C. R. & N. R. Co.. 7 Am. & Eng. R. Cas. 591, 59 Iowa 33 ; Bowman v. Troy & B. R. Co,, 37 Barb. (N. Y.) 516; Mcniges v. New York & H. R, Co., i Hilt. (N. Y.) 425. The law charges the owner of cattle with a wrongful or negligent act if the beasts stray from his inclosure and go upon lands appropriated by a railroad corporation, al- though his inclosure is kept well fenced, and he is guilty of no actual carelessness in sullering them to escape. Miingcr v. Tona- •wanda R. Co., 4 N. V. 349.— Applied in Hance 7/. Cayuga & S. R. Co.. 26 N. Y. 428. DiSAPPROVEU IN Cranston v. Cincin- nati, H. & D. R. Co,, I Handy (Oliio) 193. Distinguished in Alabama G. S. R. Co. V, Powers, 19 Am. & Eng. R. Cas. 502, 73 Ala. 244. Followed in Price v. New Jersey R, & T. Co.. 31 N. J. L. 229. Re- viewed in Mentgcs v. New York & H. R, Co. I Hilt. (N. Y.)425; Moses v. Southern Pac. R. Co., 42 Am. & Eng. R. Cas. 555, 18 Oreg. 385. The owner of a cow who permits her to go at large, and unattended, on a street of a city on which railroad tracks are laid, is guilty of such carelessness as to defeat a recovery for an injury thereto by a passing train, if it is not the result of gross negli- gence in the management of the train. Bow- man v. Troy &- D. R. Co., 37 Barb. {N. K.) 516.— Distinguishing Corwin v. New York & E. R. Co., 13 N. Y. Rep. 42. Following Halloran v. New York & H. R. Co.. 2 E. D. Smith (N. Y.) 257. Reviewing Tonawanda R. Co. V. Muiiger. 5 Den. 255; affirmed in 4 N. Y. 349.— Distinguished in Brady v. Rensselaer & S. R. Co., i Hun (N. Y.) 378, 3 T. & C. 537. Followed in Van Horn v. Burlington C. R. & N. R. Co., 7 Am. & Eng. R. Cas. 591, 59 Iowa 33. Reviewed IN Moses 7/. Southern Pac. R. Co., 42 Am. & Eng. R. Cas. 555. 18 Oreg. 385. It is gross negligence for a man to suffer his cattle to go at large on the highways in the immediate vicinity of a railroad. Marsh V. New York &* E. R. Co., 14 Barb. (N. V.) 364.— Disapproved in Corwin v. New York & E. R. Co,. 13 N. Y. 42. Where the owner of a cow wrongfully permits her to go upon a highway, a com- pany is not liable for failing to remove snow from a cattle-guard, whereby the cow passes upon the track and is injured,* Hance v. Cayuga &^ S. R. Co., 26 /V. }'. 428, — Applying Munger ?'. Tonawanda R. Co., 4 N, Y. 349. Following Corwin 7>. New York & E. R. Co., 13 N. Y. 42.— Criti- cised IN Bostwick ?', Minneapolis «i P. R. Co., 2 N. Dak. 440. Di.STiNc.uisHED IN Brown v. Milwaukee & P. du C. R. Co., 21 Wis, 39. 27a. North Ciiroliiia. — If the owner of cattle permit them to stray off and get upon the track of a railroad and they are killed or hurt, the company is not liable unless the train was being carelessly run, or by the exercise of proper care after the animals were discovered the injury could have been avoided or prevented. Doggett v. Richmond ^^ 1), R. Co., 81 A'. Car. 459.— Quo IKD IN Winston v. Raleigh & G. R. Co., 19 Am. & Eng. R. Cas. 516, 90 N. Car. 66. 274. Ohio.— When the owner suf- fers his stock to run at large, contrary to the statutes of the state, he cannot recover if they stray upon a railroad track and are killed, although they may have done so by reason of the track not being fenced as re- quired by law, for the reason that in such case both parties arc regarded as wrong- doers, and neither can recover for injury resulting from the unlawful act of the other. Baltimore &- O. R. Co. v. Wood, 45 Am. ( control, after dark, and at a time when it was known that the train might be expected. The neglect of the company to blow the whistle or ring the bell in api)roa(liing the crossing could not affect the right of action, Thompson v. Grand Trunk R. Co., 18 U. C. Q.B.')2.— Followed and quoted in McGee v. Great Western R. Co., 23 U. C. Q. B. 293. Reviewed in Markhan v. Great Western R. Co., 25 U. C. Q. B. 572. Plaintiff sent three of his horses to a wa- tering-place on the highway with his serv- ant, who merely drove then) before him, not having any further means of control by bridle, halter, or otherwise. They passed the watering-place and got onto the railway over the cattle-guard, which was filled up with snow, and one of them was killed by the train some distance from the point of intersection. The jury found that tiie plain- tiff was guilty of no negligence, and that, had the cattle-guard been kept clear of snow the horses could not have got upon the track. Held, that the plaintiff nevertheless could not recover, for his horses were not "in charge of" any person within the meaning of 20 Vic. ch. 12. § 16, when they got upon the railway. Cooley v. Grand Trunk R. Co., 18 U. C. Q. B. 96.— FOLLOW- ING Simpson v. Great Western R. Co., 17 U. C. Q. B. 57 ; Ferris v. Grand Trunk R. Co., 16 U. C. Q. B. 474.— DlSTINGULSHED IN Hillyard v. Grand Trunk R. Co., 8 Ont. 583. 3. Proximate Cause.* *277. Generally. — In stock - killing cases, to establish contributory negligence, ~*See also ante, '34:-iW, »5, 136, 188^ lU-iipost, 344, 350, 454. 228 ANIMALS, INJURIES TO, 278, a7». if there must be some act or omission of the plaintiff proximately affecting the question of the exposure of the animal to danger or contributing to the accident. IVatii-r v. Chicago, Si. P., M. &' 0. A'. Co., 13 Am. &• Eitg. R. Cas. 582, 31 Afinn. 91, 16 A'. IV. Rep.'in. Contributory negligence, debarring the plaintiff's riglit of recovery, exists only where the negligence of plaintiff contributed proximately to the injury sued for; it does not exist where the injury sued for and that resulting from the fault of the plaintiff are disconnected. Pittucllw.Si.Louis.A. « T. Ji. Co., 49 Mo. App. 170. The negligence of the owner of cattle in permitting them to stray upon a railroad rack will not prevent a recovery for their : I'gligent killing, where it appears that the negligence of the owner is not the proxi- mate cause of the killing. Needham v. .San Francisco &* S. J. R. Co., 37 Cal. 409. — Quoting Isbell v. New York & N. H. R. Co., 27 Conn. 393. — Approved in Flynn v, San Francisco & S. J. R. Co., 40 Cal. 14. Explained in Toomey v. Southern Pac. R. Co., 86 Cal. 374. Followed in Kline v. Central Pac. R. Co., 37 Cal. 400. Quoted in Meeks v. Southern Pac. R. Co., 8 Am. & Eng. R. Cas. 314, 56 Cal. 513, 38 Am. Rep. 67 ; Bostwick v. Minneapolis & P. R. Co., 2 N. Dak. 440. The fact that horses run at large where they might trespass upon a railroad track and right of way, contrary to the California act of March 7, 1878, requiring all cattle to be confined by their owners, is not contrib- utory negligence constituting a defense, where they are killed by the railroad com- pany, unless it appears that such running at large was the proximate cause of the killing. Orcuit V. Pacific Coast R. Co., 85 Cal. 291, 2^ Pac. Rep. 66\. A company cannot avoid liability for stock killed that go from an adjoining field to the track after the railroad fence has been burned, and before the company has rebuilt, by showing that the owner tres- passed upon the track in driving the stock to the field, where it does not appear that such trespass was directly connected with the killing. Sika v. Chicago t called negligence, is not the proximate cause of the injury, and, in the sense of the law, docs not constitute contributory negligence. Moses v. Southern Pac. R. Co., 42 Am. &• Eng. R. Cas. 555. 18 Ong. 385. 23 Pac. Rep. 498. Alabama G. S. R. Co. v. .lie Alpine, 15 Am. &• Erg. R, ANIMALS, INJURIES TO, 280. 2-Z^ Cas. 544, 71 A/a. 545.— FOLLOWING Cairo & St. L. R. Co. V. VVoosley, 85 111. 370; Ewing V. Chicago & A. R. Co., 72 111. 25. The plaintiff's horse, for the killing of which by defendant's train of cars the action is brought, having escaped from the car in which he was being transported, ran several miles along a public road, until it inter- sected the railroad track, and up the rail- road track for nearly a mile, when it was overtaken by another train of cars, run over, and killed ; the fact that it escaped from the car through the negligence of the plaintiff himself, who had charge of the car contain- ing his horses, is not the proximate cause of the injury, and does not constitute such con- tributory negligence as will defeat a recovery. Louisville C. R. Co. v. Cahill, 63 Ind. 340. —Approving Toledo, W. & W. R. Co, v. Cory, 39 Ind. 218; Toledo. W. & W. R. Co. V. Cory, 37 Ind. 172; JelTerscmville, M. & I. R. Co. V. Ross, 37 Ind. 545 ; Toledo, W. & W. R. Co. V. Weaver, 34 Ind. 298 ; Jeffer- sonville, M. & I. R. Q,o.7>. O'Connor, 37 Ind. 95 ; Cleveland, C, C. & I. R. Co. v. Crossley, 36 Ind. 370 ; Bellefontaiiie R. Co. v. Reed, 33 Ind. 476 ; Indianapolis & C. R. Co. v. Parker, 29 Ind. 471. In such cases neither contributory negli- gence on the part of the owner nor the fact that the animal was a trespasser will consti- tute a defense. Such statutory liability is in the nature of a police penalty, and was designed to promote the public safety. Chi- cago, St. L. 6r* P. R. Co. v. Fenn, 3 Ind. App. 250. 29 N. E. Rep. 790.— Quoting New Al- bany & S. R. Co. V. Maiden, 12 Ind. 10. Where the streets and alleys of a town end at a railroad track and terminate at a high bank, which cannot be used for loading or unloading cars, it is the duty of the railroad company to fence, and it is liable for injury t< > cattle when it does not do so, without regard to the negligence of the owner of the ani- mals. Toledo, W. 6- W. R. Co. v. Cary. 37 Ind. 172, 5 Am. Ry. Rep. 557. If a horse be killed at a crossing where the company is not required to fence con- tributory negligence on the part of the owner will defeat a recovery ; but if the kill- ing be at a place where the company was bound to fence and had not securely fenced, then contributory negligence will not defeat a recovery. Baltimore, O. &• C. R. Co. v. Evarts, 112 Ind. 533, 14 N. E. Rep. 360. 11 West. Rep. 875. {"^Massachusetts— Michigan— Minnesota. —A company which is bound by statute to erect and maintain a sufficient fence is lia- ble in damages if a horse, feeding in an ad- jacent pasture, escapes through a defect in the fence and is run over and killed by the cars, without proof of any care on the part of the owner to preveni such an escape ; and evidence of notice to the owner that his horse had escaped two or three times before, and l)een upon the track, is immaterial. Rogers v. Newburyport R. Co., i Allen ill ANIMALS, INJURIES TO, 282. 231 (Mass.) i6.— Approved in Cleveland, C, C. & I. R. Co. V. Scudder, 13 Am. & Eng. R. Cas. 561, 40 Ohio St. 173. Reviewed in Wilder v. Maine C. R. Co., 65 Me. 332 ; Pittsburgh, C. & St. L. R. Co. v. Smith, 13 Am. & Eng. R. Cas. 579, 38 Ohio St. 410. The statutory liability of a company for injuries to cattle resulting from its neglect to put up and maintain side-fencing is not affected by the contributory negligence of the owner of the cattle. Act 198 of 1873. Grand Rapids &^ I, R. Co. v. Cameron, 45 Mich. 451, 8 N. IV. Rep. 99.— Following Flint & P. M. R. Co. v. Lull, 28 Mich. 510. Merely permitting cattle to run at large in violation of a special law prohibiting it in a certain town is not such contributory neg- ligence as prevents recovery by the owner where they have been killed by straying on- to the track of a railroad company through the latter's failure to fence. Watier v. Chi- cago, M. &^ St. P. R. Co., 12 Am. 6- E/tg. R. Cas. 582, 31 Minn. 91, 16 A^. IV. Rep. 537.— Distinguishing Locke v. First Div. St. P. & P. R.Co., 15 Minn. 283; Witherell v. Milwaukee & St. P. R. Co., 24 Minn. 410. Following Gillam v. Sioux City & St. P. R. Co., 26 Minn. 268. (4) Missouri — New Hampshire — New York. — Allowing stock to run at large in violation of the Missouri act of 1883 is not a defence to an action against a railroad com- pany for killing them at a point where its track was not fenced, as required by the statute. Boyle v. Missouri Pat R. Co., 21 Mo. App. 416.— Reviewing Stanley v. Mis- souri Pac. R. Co., 84 Mo. 625 ; Bowman v. Chicago & A. R. Co., 85 Mo. 533 ; Spence v. Chicago & N. W. R. Co., 25 Iowa 139; Fritz V. Milwaukee & St. P. R. Co., 34 Iowa 337. The fact that plaintiff's animals escaped from a pasture in which they were confined, situated about a mile and a half from the point where they went upon defendant's road, and were killed, cannot avail as a de- fense unless it is further shown that tliey passed through intervening lawful fences to reach defendant's road. Emmerson v. St. Louis &• H. R. Co., 35 Mo. App. 621.— Reviewing Berry v. St. Louis, S. & L. R. R. Co., 65 Mo. 172; Peddicord v. Missouri Pac. R. Co., 8s Mo. i6o. The neglect of a company to fence its road will make it liablefor injury to animals upon its track although the owner of such animals was aware of that neglect when he turned them put to graze on his own adjoin- ing land. Cressey v. Northern R. Co., 1 5 Am. &* Eng. R. Cas. 540, 59 A'. //. 564, 47 Am. Rep. 227.— Quoting Flint & P. M. R. Co. v. Lull, 28 Mich. 510; McCoy v. California Pac. R. Co., 40 Cal. 532; Wilder z/. Maine C. R. Co., 65 Me. 332, 20 Am. Rep. 698; Cook V. Champlain Transp. Co., i Den. (N. Y.) 91. Reviewing Kerwhacker v. Cleveland, C. & C. R. Co.. 3 Ohio St. 172. Where a company neglects to maintain fences and cattle-guards along its line, as re- quired by statute, and cattle get upon the track and are injured, the corporation is liable, although the owner is not an adjoin- ing proprietor, and it does not appear how or when the cattle came upon the track. The mere negligence of the owner in permitting his cattle to stray upon the land of another adjoining the railway, or to run at large in the highway which crosses the track, is not a defense to the corporation. Rhodes v. Utica, I. &' E. R. Co., 5 Hun (N. V.) 344.— Following Corwin v. New York & E. R. Co., 13 N. Y. 42 ; Bradley v. Buffalo, N. Y, & E. R. Co., 34 N. Y. ^2T.— Sheaf v. Utica &» B. R. R. Co., 2T.&*C. (N. v. ) 388. A cow owned by the plaintiff was left in charge of a boy, who drove her from plain- tiff's stable to an open lot adjoining defend- ant's track, near a crossing, in the vicinity of which some of the fences were tempo- rarily and necessarily down for the purpose of repairing the roadway of defendant. The boy having left the cow for a short time she strayed upon the track and was killed by a passing train. Heid, that the defendant was liable. Brady v. Rensselaer &* S. R. Co., i Hun (N. Y.) 378, 3 r. (S- C 537.— Distin- guishing Bowman v. Troy & B. R. Co., 37 Barb. (N. Y.) 516. The negligence of the owner of a horse in permitting him to run at large on a high- way and to trespass upon a neighbor's prem- ises is not a defense to an action against a railway company for killing him, where it appears that the horse went through an opening in a fence onto the right of way, which it was the duty of the company to keep closed. Munch v. New York C.R. Co., 29 Barb. {N Y.) 647. 282. Where company could linve prevented the accident. — Although the owner of stock kno\vin{;ly permits it to run at large in violation of statute, he may recover for an injury to it by a railway train, if such injury was due to the negligence of the employes of the railway company in 23d ANIMALS, INJURIES TO, 283,284. ill m •?*>■: running the train ; and the railway company is thus liable, whether such negligence was gross or wanton, or consisted only of the want of ordinary or reasonable care. Wind- sor V. Hannibal &* St. J. R. Co., 45 Mo. App. 123. — Following Dunckman v. Wabash, St. L. & P. R. Co., 95 Mo. 232. Plaintiff's mule was killed by defendant's train. Held, that even if the plaintiff was guilty of contributory negligence in turning the mule out of his inclosure, he is entitled to recover damages if defendant could have prevented the accident. But the plaintiff had the right to turn out the mule, and his act could in no sense be considered as con- tributory negligence. Farmer v. Wilming- ton St. P. R. Co. v. Phil- lips, 14 ///. App. 265. In an action under article 77 of the Maryland Code, to recover damages for kill- ing the plaintiff's colts, the plaintiff is enti- tled to recover, though guilty of negligence in allowing the colts to be on the railroad track, if the proof show that the killing could have been avoided by the observance of proper care and caution on the part of the defendant's agents. Northern C. R. Co. V. Ward, 63 Md. 362. If the plaintiff were guilty of negligence, or even of positive wrong, in allowing his cattle or horses to run in the highway, from whence, through the want of a fence wiiich it was the duty of the railroad corporation to maintain, they strayed upon the railroad track, the corporation is yet bound to the exercise of reasonable care and diligence in the usi; of its road and the management of the engine and train; and if for want of that care the injury arose, they are liable. Troiv V. Vermont C. R. Co., 24 Ft. 487. Where cattle have wrongfully got upon a railroad through the negligence of the owner, the company are still obliged to use ordinary care and caution to avoid a colli- sion ; and in this case, where horses had es- caped upon the track through a gate at a farm crossing which the owner had left open, but although they were seen by the engineer the speed was not slackened and no precaution was taken except sounding the whistle, the company were held liable. Campbell V. Great Western R. Co., is U. C. Q. B. 498.— Quoting Butterfield v. Forester, II East. 60.— Distinguished in Hurd v. Grand Trunk R. Co., 15 Ont. App. 58. 284. Where company is f^uilty of wilfkil or gross negligence.*— (i) Gen- erally. — Tiie fact that the owner of an ani- mal knowingly permitted it to run at large is not such contributory negligence as will defeat an action by him against a railroad * See also ante, 37-50, 60, 187, 200, 217,218. ANIMALS, INJURIi:s TO, 285. 233 company (or wilfully killing it. Detroit, E, R. St. J. R. Co., 45 Afo. App. 123.— Distinguishing Fritz V. Milwaukee & St. P. R. Co., 34 Iowa 337 ; Spence v. Chicago & N. W. R. Co., 25 Iowa 139. Reviewing Bowman 7/. Chicago & A. R. Co., 85 Mo. 533 ; Schwarz v. Han- nibal & St. J. R. Co., 58 Mo. 207; Owens z/. Hannibal & St. J. R. Co., 58 Mo. 386.— Cleveland, C, C. » Eng. R. Cas. 621, 34 Kan. 132, 8 Pac. Rep. 218.— QUOTING Atchison, T. & S. F. R. Co. v. Riggs, 31 Kan. 622. The fact that a horse was frightened and lot under the control of any one at a time .vhen it was struck by a railroad train on a highway crossing is not conclusive, as mat- ter of law, of such a want of care on the part of its owner as to defeat an action ANIMALS, INJURIKS TO, 288. 235 brought by him against the railroad corpora- tion to recover for the injury caused by its negligence. Soutlnvorth v. Old Colony (S-» W R. Co., 105 Mass. 342, 2 Am. Ry. Rep. 436. Evidence that a servant, whom traders employed to deliver goods, upon stopping with his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left the horse unfastened for four or five minutes while he was in the house, knowing that it was not afraid of cars, and having used it for three or four months without ever hitching it or know- ing it to start, is not conclusive, as matter of law, of a want of due care on his part ; but the question is for the jury. Southworth v. Old Colony 6- A'. R. Co., 105 Mass. 342. 288. When question of fact for the jury. — (i) Generally. — The contributory negligence of a boy in riding a horse, sup- posed to be gentle, to within seventy- five feet of a track, where he became frightened and jumped over an insufficient fence and was killed, is for tue jury. Hynes v. San Fran- cisco &<» A'. P. R. Co., 20 Am. Sf Eng R. Cas. 486, 65 Cal. 316, 4 Pac. Rep. 28. In a suit to recover for killing plaintiff's cow, whether there was contributory negli- gence on the part of plaintiflf, and if so, to whiit extent, and whether the negligence of the company probably caused or contributed to the injury, are questions of fact to be de- termined by the evidence. Illinois C. R. Co.v. Gillis, 68/11. 317. Whether or not the owner of a blind horse was guilty of negligence in turning out the horse to graze where he might be exposed to danger from passing railroad trains, was properly admitted to the juiy. Hammond v. Siou.x City <&* P. R. Co., 49 Iowa 450. Plaintiff's cow was killed by a" wild "train at a highway crossing. Plaintiff lived near the crossing and knew the time when trains passed, but more than an hour before a train would be due the cow was turned onto the highway, with the intention soon to drive her to a pasture beyond the track, but she was soon afterward killed. Held, that the question of plaintiff's contril)utory negli- gence was for the jury. Courson v. Chicago, M. a- St. P. R. Co., 71 Iowa 28, 32 N. IV. Rep. 8. In an action for injury to horses which go upon the track over an alleged insufficient cattle-guard, while the jury might not infer the insufficiency of the cattle-guard from the fart iliut the horses passed over it by .stepping between or upon the cross-ties, and further from the fact that cattle-guards somewhat differently constructed were in use, yet they iniglit properly consider such facts, in connection with others, in determin- ing the question of its sufficiency. Timins v. Chicago, R. I. &• P. R. Co., 31 Am. &• Eng. R. Cas. 541, 72 Iowa 94, 33 A^. W. Rep. 379. —Reviewing Krebs v. Minneapolis & St. L. R. Co., 64 Iowa 670; McKinley v. Chicago, R. I. & P. R. Co., 47 Iowa 76. Where cattle escape from the owner's barnyard to a track through a gate tliat the company is bound to maintain, and it ap- pears that it had been down or insufficient for some time, the negligence of both the company and the owner is for the jury. Estes V. Atlantic &* St. L. R. Co., 63 Me. 308. In actions for negligence in failing to erect or maintain fences under the statute, contributory negligence on the part of plaintiff is a defence ; but whether merely permitting stock to run in a pasture after notice that it had several times passed through the railroad fence adjoining, which was defective and insufficient, and went onto the track and was killed, is such contributory negligence or not, is for the jury. Johnson V. Chicago, M. <&* St. P. R. Co., 29 Minn. 425, 13 a; IV. Rep. 671. Whether, in exercising his right to use his land, the landowner has been guilty of negligence, contributing to an injury to his cattle, is ordinarily a question of fact for the jury, to be determined with reference to all the circumstances of the case, and to the duty of the company as above indicated. Merely suffering his cattle to graze upon his land, or to go to a spring thereon, in broad daylight, is not such negligence on the part of the landowner in law, notwithstanding the company's road is unfenced, and not- withstanding there is another railroad with- in a few hundred feet. Schubert v. Minne- apolis &• St. L. R. Co., 27 Minn. 360, 7 A^. W. Rep. 366. Whether a person was in the lawful use of a highway as a " traveller." and whether he was in the exercise of due care at the time of an injury to his horse, are questions for the jury. Sleeper v. Worcester &* A'. R. Co., 58 N. H. 520. Plaintiff, living about three-fourths of a mile from defendant's track, which he knew to be unfenced, permitted his cow to pasture 236 ANIMALS, INJURIES TO, 280-201. »i» w in summer (presumably with other cuttle) on a large tract of uti inclosed grass-land, extending from the neighborhood of his residence to the track, and she passed upon the track from said land, and was in- jured. Ne/d, that upon these facts the question of contributory negligence, being open to doubt and debate, was for the jury. Citrry v. Chicago (S- N. W. R. Co., 43 Wis. 665. — Reviewing Blair v. Milwaukee & P. du C. R. Co., 20 Wis. 254. In an action for the value of plaintid's horse, which escaped upon defendant's rail- way track from an adjoining field, and was killed by a train in consequence, as was alleged, of a defect in defendant's fence at that place — held, that if it had appeared that the horse was breachy and accustomed to jump or break lawful fences, and that plain- till, knowing these facts, had turned him loose in the field adjoining the track, the jury might have found upon this evidence that plaintiff was guilty of contributory negli- gence, though the court could not so hold as matter of law. Jones v. Sheboygan &^ F. du L. A'. Co., 42 IVis. 306, 1 5 Am. Ry. Rep. 229. Where a landowner leaves open a gate at a private crossing, and some of his horses escape onto the track and are killed, it is a question for the jury whether he was guilty of contributory negligence. Ellis v. London &- S. IV. R. Co., 2H.&'N. 424, ijur. N. S. 1008, 26 L.J. Exch. 349. A horse that escapes from plaintiff's ser- vant onto a highway, and thence by a rail- road gate onto the track, is not a trespasser, but the question as to whether the servant was negligent in allowing the horse to escape is for the jury. Towne v. Nashua &* L. R. Co., 124 Mass. loi. (2) Animals running at large. — In Dakota it is lawful to allow cattle to run at large, but it is the duty of the owner to exercise reasonable care to prevent their going on a railroad track; but the question as to whether such care has been exercised in a given case is for the jury. Williams v. Northern Pac. R. Co., 1 1 Am. &^Eng. R. Cas. 421, 3 £>ah. 168, 14 N. W. Rep. 97. In a suit in Illinois against a railroad for stock killed in consequence of its neglect to fence its road, where it appears such stock were permitted to run at large in violation of law, the question whether the owner has been guilty of contributory negligence in permitting them to run at large is one of fact, to be determined by the jury. Cairo 6- St. L. R. Co. v. Woos/ey, 85 /tf. 370. —Followed in Alabama G. S. R. Co. v. Mc Alpine, 15 Am. & Eng. R. Cas. 544,71 Ala. i\y—Rock/ord, R. I. - 273. aUO. l»roce(*».»— In an action against a company f Eng. R. Cas. 480, 74 Ala. 1 50. Under the provisions of the Georgia Code, S^ 3049, 33^9t 34u6> itii action against a rail- road company for killing stock cannot be instituted in a superior court by serving written notice on the company and tiling the san)e in the clerk's office, without other pleadings. Hodges v. Atlantic &* U. R, Co., 51 Ga. 244. — UibllNLiulSHiNU Jones 7/. Cen- tral R. & B. Co.. 18 Ga. 247. Where in an action brought, under the provisions of § 2988 of the Georgia Code, for stock killed, the notice required was served personally by the plaintitT, who at- tached his affidavit of such service thereto. Held, that such allidavit was sufficient evi- dence of such service, and not being tra- versed, it was not necessary to produce the witness on the stand to prove the same. Macon &* IV. R. Co. v. liabcr, 42 Ga. 300. In trespass for killing a cow the summons was returned, " served by leaving copy at Enon Station office ; " defendants not hav- ing appeared, service held insufficient, not having been made upon an officer or agent of the company. Ohio &• P. R. Co. v. Brit- tian, I Pittsb. (Pa.) 271. Semble, that in an action against a railroad company for killing cattle, the ten days' service of summons is not sufficient notice under the act of March 4, 1853. Ne7i< Albany &* S. R. Co. v. Welsh, 9 Ind. 479. 2. Right of Action — Form of Action — Demand. 207. Rigrlit of action, geiierally.f — The remedy provided by Dakota Code for an appraisement of stock killed or in- jured is merely cumulative, and a compli- ance therewith is not necessary to enable the party to sue in court. Volkman v. Chi- cago, St. P., M. &> O. R. Co., 35 Am. N. R. Co., 58 Afo. 109.— Distinguished in Lincoln v. St. Louis, L M. & S. R. Co., 75 Mo. 27; Carpenters. St. Louis, I. M. & S. R. Co., 20 Mo. App. 644. Followed in Rhea v. St. Louis & S. F. R. Co., 84 Mo. 345- No action can be maintained, under the 43d section of the Missouri railroad law (Wa^n. St. 310), for animals killed within the limits of a town or city; in such cases, where fences have not been but might lawfully be erected, the action should be brou;;lit under section 5 of the damage act (Wagn. St. 520), which dispenses with the proof of negligence ; or the action should be brought at common law. Elliott v. Hannibal &• St. J. R. Co., 66 Afo. 683.— Following Edwards 7). Hannibal & St. J. R. Co., 66 Mo., 567.— Followed in Cousins V. Hannibal & St. J. R. Co., 66 Mo. 572. 300. under ^ 800, Rev. St. of Missouri.— When the action is founded on § 809, Rev. St. of Missouri, there can be no recovery under Rev. St. § 2124. Rhea v. St. Louis &^ S. F. R. Co., 84 Afo. 345.— Following Cary v. St. Louis, K. C. & N. R. Co., 60 ivio. 209; Wood V. St. Louis, K. C. & N. R. Co., 58 Mo. 109. Under § 809, Rev. St. of Missouri, there can be no recovery for injuries to stock resulting from the negligent manage- ment of trains. Rhea v. St. Louis &* S. F. R. Co., 84 Afo. 345.— Following Cary v. St. Louis, K. C. & N. R. Co., 60 Mo. 209; Crutchfield v. St. Louis, K. C. & N. R. Co., 64 Mo. 355. 301. Election between statutory and voninioii-law actions.- Where n : ..jKi. ■ . % ■ ■ "K'l'"*!^ ■??■ MO ANIMALS, INJURIES TO, U02-:t04. stock arr killed by a railroad which has w^m- lectcd to fence its track in the time pie- scribed, the owner of such stock may elect, according to the (acts of the case, to base his action upon the sutute of 1855, or up<>!i the common-law grounds of neglii^ciice. Kockford, R. I. &* S/. L. A'. Co, v. I'hiUips, 66 ///. 548. The owner of stock killed by a railroad company may have his common-law action against the company for negligence, al- thoii^'li there is w statute making railroad companies liable for killing stock, without regard to the question of negligence, pro- vided the owner complies with the method of procedure laid down. Denver &* A'. (/. A'. Co. V. Henderson, 31 Am. &* Eitg. R. Cits. 559, 10 Co/o. I, 13 /' IV, R. Co, v. Arnold, 49 ///. 178. And in such ca.se, where there is no posi- tive proof that the defendant opera,ted the railway which, it is claimed, committed the injury, but such fact is infcrentially shown by the fact that the defendant was incorporated by the name it bears at a session of the legislature next previous to the injury com- plained of, — under such circumstances the inference is that such injury was done by the defendant's road, there being no proof that any other road was operated in that portion of the county where the damage was done. Toledo, P. &• W. R. Co. V.Arnold, 49 ///. 178. Where two cattle standing but a few feet apart are killed by a passing train there is but one cause of action, and where the value of the two together exceeds $50 the com- mon pleas court has jurisdiction. Lafayettt :ompany for killing stock to an agent ot the company, or to bring suit, within sixty days; and when the case is tried by e court without a jury, and the statute 1. set up as a defence, and the ..mount claimed is less than $20, it is error to render judgment for plaintiff without proof that such demand was made, or that the suit was commen -d as provided by statute. SouiA 6- N. . ita. R. Co. v. Reid, 66 Ala. 250. The original affidavit of loss must be served on a railway company to render it liable for stock killed vipon its track, the delivery of a copy of ich affidavit not ful- filling the requirement of the statute. Cole V. Chicago &* N. W. R. Co., 38 Iowa 311. — Distinguished in Brentner v. Chicago, M. & St. P. R. Co., 7 Am. & Eng. R. Cas. 574. 58 Iowa 625. To sustain an action, under Kansas Laws 1874, ch. 94. against a railroad company for the killing of stock, proof must be made of I D. R. D.— If). a demand in accordance with the provisions of § 2. Kansas l\\c. R. Co. v. Hall, 19 Kan, 535.— FOLLCJWKU IN Kansas City, Ft. S. & G. R. Co. 11. Frazier, 23 Kan. 6y8. 308. I'rool' mid Niifllcit'ncy of de- mand or notice— (1) ^llaluiwa.— Sec- tion 1701 of the Alabama Code of 1876 was superseded by the later enactment, now embodied in § 171 1 of that Code, as to the time within which the claim for damages for injuries done to stock by a railroad company should be presented ; but that section still stands as a regulation as to the manner in which the claim must be preferred. Hence, the claim must still be in writing, and must be presented to one of the officers or employes named in that section. Ala- batna G. .S. R, Co, v. Killian, 69 Ala. 277. Suit brought in less than six months is of itself sufficient presentment of claim. South (5- A^. Ala. R. Co. v. Hci s, 82 Ala, 340, 2 So. Rep. 752. In an action to recover damages for in- juries to stock (Alabama Code, § 1711), it being proved that plaintiff's claim was pre- sented, within six months after the injury, to an agent of the company, who promised to forward it to the proper officer or depart- ment, and afterward told plaintiff that he had forwarded it, and that he would pay it on his return trip; and the evidence show- ing, also, that other similar claims had been presented to said agent and had been paid by him, and that he held himself out as the agent to whom such claims could properly be presented ; this is sufficient evidence of due presentation to authorize the submis- sion of the question to the jury, although the defendant's evidence tended to show that said agent had no authority to receive the presentation of claims, but was only authorized to adjust and pay claims referred to him by the higher officers of the com- pany. Alabama G. S. R, Co, v. Roebuck, 23 Am. &* Eng. R. Cas, 176, 76 Ala, 277. Proof that an agent, appointed for the purpose of investigating and paying such claims, inquired after plaintiff to settle his claim within sixty days after it accrued, and offered to pay his attorney half the amount claimed, will authorize a jury to infer due presentment. South <&- A^. Ala, R, Co. v. Brown, 53 Ala. 651, 13 Am. Ry. Rep, 166. (2) Arkansas. — Under Mansfield's Arkan- sas Digest, § 5538, providing that when any stock are killed by a railroad train the rail- road company must post at the station- i'1 'mil J. 1 -:r 943 ANIMALS, INJURIES TO, 300. ?;:?«t I, Ml ill h « house nearest to the killing a description of the animal killed and the time and place of killing, or forfeit double damages for such killing, the posting of such notice at such station-house in any public place where it could be seen is a sufi^cient ompliance with the statute. St. Louis, /. M. &■• S. R. Co. V. Wrig/it, 57 Ark. 327. Proof that no advertisement of the kill- ing of an animal was posted at the nearest station-house, either at the place where such notices were usually placed or in front of the building, will, in the absence of evi- dence that there were other places suitable for such posting, justify a finding of the jury that no notice was posted. St. Louis, /. AT. &* S. R. Co. V. Wright, 57 Ark. 327. (3) Iowa.* — Where stock were killed by the "Central Iowa Railway Company," a notice served upon the " Iowa Central Rail- way Company " is a sufficient compliance with Iowa Code, § 1289, requiring notice to be served on the company killing stock in order to recover double damages. Martin V. Central Iowa R. Co., 59 Iowa 411, 13 A'^ W. Rep. 424. The affidavit served for the purpose of entitling claimant to double damages for stock killed by a railroad train need not specially designate the place where the in- jury was done. The jurat to such affidavit may be amended within such reasonable time as not to cause essential injury to the other party, and the notice of claim and the accompanying affidavit may be served by the plaintiff or any other person. Mund- henk v. Central Iowa R. Co., 1 1 Am. &* Eng. R. Cas. 463, 57 Iowa 718, 11 A^. IV. Rep. 656.— Following Mackie v. Central R.Co., 54 Iowa 540. Proof that a notice and affidavit of the killing of stock served on a railroad com- pany were similar to others introduced in evidence is sufficient. Keyser v. Kansas City, St. J. 6- C. B. R. Co., 56 Iowa 440, 9 A^. IV. Rep. 338.— Reviewing McNaught v. Chi- cago & N. W. R. Co., 30 Iowa 236. It is not essential that the notice and affi- davits required to be served upon the rail- road company, where damages are claimed for stock killed, should contain anything more than a statement of the claim and the fact of the injury. Mackie v. Central R. Co., 54 Iowa 540, 6 A^. W. Rep. 723. * Notice of injury to stock and tender by company of amount of claim under Iowa stat- ute, see 49 Am. & Eng. R. Cas. 585, abstr. A notice to a railroad company of stock killed which contains a statement of the loss complained of, and is sworn to, is a suf- ficient compliance with the laws of 9th Gen. Assembly of Iowa, ch. 169, § 6, and i: is not necessary that the notice and affidavit be on separate papers. Mendell v. Chicago &• N. W. R. Co., 20 Iowa 9. — Reviewed in Manwell v. Burlington, C. R. & N. R. Co., 45 Am. & Eng. R. Cas. 501, 80 Iowa 662. Service of such notice may be made by delivering to the defendant either the orig- inal or a copy. Mendell v. Chicago &* N. W. R. Co., 20 Iowa 9. (4) Kansas. — In an action under par. 1252 of the Kansas General Statutes of 1889, for injuries to stock, where there was evidence tending to show that there were both a verbal and a written demand, but the trial court rejected the copy of the notice of the written demand upon the ground that it was not the best evidence, and the jury found that there were both a written and a verbal demand — held, that the finding that there was a written demand was immate- rial, and that a new trial should not be granted for that reason. Missouri Pac. R. Co. V. Gill, 49 Kan. 441, 30 Pac. Rep. 414. Where the owner of a steer, killed by a company in the operation of its trains, makes out a bill in wri'. „, stating an ac- count in favor of himself and against the company, for the value of the animal killed, giving the date of the accident, and presents said bill to the company within thirty days from the date of the accident— //<-/ N. W. R. Co., 30 Iowa 336.— Distinguished in Brentner v. Chicago, M. & St. P. R. Co., 7 Am. & Eng. R. Cas. 574, 58 Iowa 625. Re- viewed IN Keyser v. Kansas City, St. J. ^ C. B. R. Co., 56 Iowa 440. Proof of the service of notice and affidavit of loss, to entitle plaintiff to double daniiif>cs for injury to animals, may be made by copies shown to be correct, without notice to defendant to produce the originals. Smith V. Kansas City, St. J. &* C. B. R. Co., 58 Iowa 622, 12 N. IV. Rep. 619. — FOLLOWING Brentner v. Chicago, M. & St. P. R. Co.. 58 Iowa 625. Upon the trial of an action against a rail- road company to recover double the value of a horse killed by a train, the value not having been paid after notice and pr of of the injury by affidavit, the statement in the return of the constable who served the affidavit upon the agent of the railroiid com- pany, that such service was made by giving 244 ANIMALS, INJURIES TO, 313. a copy of the affidavit to the agent, may be corrected by the constable's evidence show- ing that he served the original affidavit. Liston V. Central Iowa R. Co., 26 Am. &* Eng. R. Cas. 593, 70 Iowa 714, 29 N. W. Rep. 445. On a trial to recover for injury to stock killed by a train, a copy of the notice and affidavit served on the company under the statute is admissible when accompanied by the oath of the person who made the ser- vice, to prove it. McLenon v. Kansas City, St. J. 6- C. B. R. Co., 69 Iowa 320. 28 .V. W. Rep. 619. The notice and affidavit of the killing of stock by a railroad company, required by § 1289 of the Code of Iowa, in order to recover double damages, muy be served by simply delivering them to the proper officer or agent of the company without reading them. Brentner v. Chicago, M. &» St. P. R. Co., 19 Am. St* Eng. R. Cas. 448, 68 lofwa 530. 23 A'; W. Rep. 245, 27 N. W. Rep. 605. Proof of the service of the notice and affidavit of loss required by statute to be served upon the defendant, to entitle the plaintif! to double damages for injury to cattle, may be made by copies or duplicate originals, without serving notice upon the defendant to ptoduce the originals. Brent- ner V. Chicago, M. &* St. P. R. Co., 7 Am. Sf Eng. R. Cas. 574. 58 Iowa 625, 12 A^. l^'^. Rep. 615.— Distinguishing McNaught v. Chicago & N. W. R. Co., 30 Iowa 336; Cole V. Chicago & N. W. R. Co., 38 Iowa 311 ; Campbell v. Chicago, R. I. & P. R. Co., 35 Iowa 334. —Followed in Smith v. Kansas City, St. J. & C. B. R. Co.. 58 Iowa 622. Under Iowa act 1862, ch. 469, authorizing a recovery of double damages for stock killed or injured by a company, the affidavit of injury provided for by the act may be made either by the claimant or by any other person cognizant of the facts. Hen- derson V. St. Louis. K. C. &> N. R. Co., 36 Iowa 387. In proceedings under Iowa act 1862, ch. 169, providing for the recovery of double damages for stock killed by railroad com- panies, the original affidavit required to be made under the act must accompany the written notice of killing which is required to be served on the company. A copy of the affidavit does not meet the requirements of the law. Campbfll v. Chicago, R. I. 6r* P. R. Co., 35 Io:va 334. -DisriNouisHKi) in Brent- ner V. Chicago, M. & St. P. R. Co., 7 Am. & Eng. R. Cas. 574, 58 Iowa 625. Where a railroad is being operated by a receiver, the service of notice, in due form, of a claim for damages for an injury to stock upon the receiver and a station agent in the county where the stock were injured, is suffi- cient to entitle the claimant to recover from the receiver, under section 1289 of the Code Iowa, double damages for such injury, if payment is not made within thirty days after the service of such notice. Brockert v. Cen- tral Iowa R. Co., 82 Iowa 369, 47 A'^ W. Rep. 1026. 3. Parties. 313. Who may sue, generally.— One who has a special ownership in an animal killed by a railway train is empowered by the statute to recover its full value. St. Louis, I. M. &* S. R. Co. V. Taylor, 57 Ark. 136. Before a party can recover against a rail- road for injury to property, he must show that he is either the absolute or qualified owner of it. Ohio &* M. R. Co. v. Jones, 27 ///. 41- In an action for injuries to animals, it is necessary to show that plaintiff was the owner or had possession of the property. Ohio 6- M. R. Co. v. Saxton, 27 ///. 426. A man must be the owner of property be- fore he can recover for injury it has sustained ; and, where several persons sue, if any por- tion of the property belongs to other persons than the plaintiffs, or if any portion of it be- longrs to any one of them individually, they cannot recover for it. When several sue for injury to property belonging to them jointly, they can recover only for such property as they prove so belonged to them. Si. Louis, A. &* T. H. R. Co. V. Linder, 39 ///. 433. One having sheep in his possession, under an arrangement by which he is accountable for them or for any injury thereto, is the owner thereof within the meaning of the Indiana statute providing that the owners of stock killed may sue therefor. New York, C. &* St. L. R. Co. V. Auer, 24 Am. 6- Eng. R. Cas. 383, 106 Ind. 219, 55 Am. Rep. 734, 6 A^. E. Rep. 330. In an action for damages for the killing of a cow, evidence that the cow was given to the plaintiff by a third person, coupled with a request that at a future time the plaintiff give another cow to the plaintiff's son, is siilTicieiit evidence of ownership to support ANIMALS, INJURIES TO, :n4-;»10. 245 a judgment. PFood v. 5/. Louis, I. M. &* S. R, Co., 20 Mo. App. 601. In a suit against a railroad for double damages for injuries to cattle, brought under the statute (Wagn. Missouri St. 310, § 43), the p;irty injured is the proper plaintiff. Fickle V. .S7. Louis, K. C. &• N. K. Co., 54 Mo. 219, 1 2 Am. Ay. Rep. 376. — FOLLOWING Hudson v. St. Louis, K. C. & N. R. Co., 53 Mo. 525. Plaintiff, owning land adjacent to the rail- way, permitted one D., a servant of the company living within their fences, to culti- vate A small piece free of rent. D. made a gate in the railway fence to give him access to this land, and the plaintiff's horses passed through it to the railway track and were killed. Held, that the plaintiff was suffi- ciently in possession of the close from which the horses escaped to entitle him to recover. Henderson v. Grand Trunk R. Co., 20 U. C. Q. B. 602. 314. Bailee.— Under Mansf. Arkansas Dig. § 5540, providing that actions for dam- ages may be maintained by any person who has either a special or an absolute property in stock killed or injured by a railroad, one who has a horse hired under an agreement to return it in good condition may maintain an action against a railroad for killing it. SI. Louis, /. A/. &* S. R. Co. v. Bt£g^s, 50 ArJk. 169, 6 S. W. Rep. 724.— Quoting Heydon & Smith's case, 13 Coke 489; Whiter. Webb, 1 5 Conn. 302 ; T Tarker v. Dement, 9 Gill (Md.) 7 ; note to Armory v. Delamarie, 1 Smith's Leading Cases 701. Reviewing Poole v. Symonds, i N. H. 289; Lyle v. Barker, 5 Binn. (Pa.) 457. 315. Person who takes up an es- tray. — One in possession of a cow, taken up as an estray, may recover of a railroad where the cow is killed through the negligence of the company. Peoria, P. &* J. R. Co. v. Mclntire, 39 ///. 298. — Distinguished in Chicago & N. W. R. Co. v. Shultz, 55 111. 214. A party had taken up a colt as an estray, and after he had been in possession about eight months it was killed by a train by rea- son of the negligence of the company. The party so taking up the estray, in at- tempting to comply with the law, failed to post the animal in the proper manner, yet he could recover against the company for the injury, and such recovery would be a bar to any subsequent action against the company by the true owner for the same injury. Chicago &- N. W.R.Co. v. Shults, 55 ///. 421.— Distinguishing Peoria, P. & I. R. Co. V. Mclntire, 39 III. 298.— DISTIN- GUISHED IN Toledo, P. & W. R. Co. v. Johnston, 74 III. 83. 310. Licensee of a lessee.— A licen- see who has acquired from the lessees of land the right to pasture his sheep thereon occu- pies no more favorable position to recover from a railroad company for the loss of sheep .which strayed upon the track through an opening in the fence, made by the lessees for their own convenience, than that occu- pied by the lessees, who could not recover if the stock lost had been their own. McCoy V. Southern Pac. R. Co., $6 Am. &^ Eng. R. Cas. 132, 94 Cal. 568, 2g Pac. Rep. mo. 317. Vendor. — A cow was agreed to be sold for thirty dollars, but the price had not been paid nor the cow delivered, and the cow was killed by railroad. Another cow was delivered to the purchaser, and the vendor sued for the value of cow killed. Held, the suit might well lie. The title to the cow was still in the vendor. Railroad Co. V. Ford, 1 1 Heisk. ( Tenn.) 388, 318. Inliabitant of the Chickasaw nation. — Under the act of Congress of July 4, 1884, granting a right of way through the Indian Territory to the Southern Kan- sas Railway Company, and providing that the United States circuit and district courts for the northern district of Texas, western c. strict of Arkansas, and district of Kansas shall have concurrent jurisdiction over all controversies arising between said railroad company and the Indian tribes through whose territory the road passes, without reference to the citizenship of the parties or the amount involved, confers jurisdiction upon such courts of a suit by an innabitant of the Chickasaw nation to recover for stock killed by the cars of said company. Southern Kansas R. Co. v. Briscoe, 144 U. S. 133, 12 Sup. Ct. Rep. 538 ; affirming 40 Fed. Rep. 273. 319. Assignee of cause of action. — The assignee of a cause of action against a company for killing cattle may sue in his own name. East. Tenn,, G. &* V. R. Co. v. Henderson, i Lea (Tenn.) i. And this rule holds good in Indiana, not- withstanding a statute provides that, in actions for killing animals, the owner must make complaint and may sue. Louisville, N. A. &- C. R. Co. V. Goodbar, 13 Am. &- Eng. R. Cas. 599, 8&/nd. 213. And under the Iowa Code, § 1289, if ihe h, %, 246 ANIMALS, INJURIES TO, ;I20-;J2«. claim is not paid within tliiriy days after notice to company by assignee, he may sue for and recover, in his own name, double damages, just as the assignor might have done. Everett v. Central Iowa Ji. Co., 31 Am. &'Eng. R. Cas. 550, 73 loTi/a 442, 35 iV. /F. A'ep. 609. Where cattle were run over and killed by the cars of a railroad company, and the owner of the stock assigned the right to sue the company for the damage sustained, the assignment conveyed the right to sue, the tort being not to the person but to the estate. Galveston, H. » N. R. Co. v. Barker, 96 Ala. 435. 1 1 So. Rep. 453. A complaint which charges that the de- fendant " wilfully and willingly killed " the plaintiff's animal is sufficient to show an in- tentional killing. Chicago, St. L. 6r* P. R. Co. V. Nash, I /nd. App. 298, 27 N. E. Rep. 564.— Quoting Lewis v. Great Western R. Co., 3 Q. B. D. 19s ; Pittsburgh. C. & St. L. R. Co. V. Stuart, 71 Ind. 500; Carters. Louis- ville, N. A. & C. R. Co.. 98 Ind. 552 ; Palmer V. Chicago. St. L. & P. R. Co., 112 Ind. 250; Cincinnati & M. R. Co. w. Eaton, 53 Ind. 307. In an action for killing livestock, an aver- ment that the horses went upon the railroad *' by reason of the company's failure to main- tain sufficient fences and cattle-guards " must be held to be the practical equivalent of an allegation that they went upon the railroad at a point "where it was not securely fenced." Wabash R. Co. v. Ferris 11 If *' *. t; ; m ?il ^ m J48 ANIMALS, inji:kii:s to, ;J2«. {Ind. App.), 32 A'^. E. Rep. 1 1 2. Evaiisi'///,- &* r. H. R. Co. V. Tipton, loi Ind. 197. Where there was an allegation tliat the " right of way " was not securely fenced, it was considered equivalent to an allegation that the " road " was not securely fenced. Louisville, N. A. &» C. R. Co. v. Hi.xon, loi Ind. 337. An allegation that a railroad was not se- curely fenced will be held to mean that it was not inclosed with a good and lawful fence. Missouri Pac. R. Co, v. Morrow, 31 Am. &> Eng. R. Cas. 520, 36 Kan. 495, i^Pac. Rep. 789. Where a complaint in an action for killing a horse was in two paragraphs, and in the first it was charged that the agents and ser- vants of th'i railway company " wilfully and willingly " killed the horse by striking and running upon it with the locomotive and train of cars, and the second paragraph charged th.it the defendant company, by carelessness, negligence of its servants and employes, ran its locomotive and train of cars on plaintiff's animal and killed it at a highway crossing, that he was without fault, etc., — an objection that the first paragraph is not sufficient because it did not aver that the animal was wrongfully or unlawfully killed is not well taken. The word " wilfully," when employed to characterize the purpose for which an act was done or omitted, signi- fies that it was done or omitted, not vol- untarily, but without any justifiable excuse, and with the evil design to do or omit the act. Chicago, St. L. &* P. R. Co. v. Nash (Ind.). 24 A^ E. Rep. 884. The words " or by any other person at its special instance and request," as occurring in the complaint, which alleges that the track was not fenced by the company " or by any other |)erson at its special instance and request " at the point where the animal entered, do not imply that the track was fenced by some other person not at the spe- cial instance and request of the company. So held, on a motion in arrest of judgment. Ft. Wayne, M. &» C. R. Co. v. Mussetter, 48 Ind. 286. The declaration averred that on a day named defendant was operating a railroad through a certain county; but did not charge directly the day, or place of killing, but " at the time and place aforesaid." Held, on demurrer, that the time and place must be understood to be that named for the op- eration of the train, and that the averment was sufficient. .sV. Louis. J. iS- C A'. Co. v. Kiipatrick, 61 ///. 457. '2 ^''"- ^/- R<^P- 438- 320. Alle;;atiouH laying the venue. — The deciciratioii need not be more specific in its allegation as to locality than to state the county in which the killing occurred. Jacksonville, T. (S>» A'. W. R. Co. v. Wellman, 26 Fla. 344, 7 So. Rep. 845. Where, in an action of trespass on the case against a company for killing stock, the first count in the declaration alleges the act complained of to have been com- mitted " at the circuit aforesaid," and that the defendant "was, tlien and there, a cor- poration, operating and doing business, un- der and by virtue of the laws of the State of Illinois, and was, then and there, pos- sessed of a certain railroad track, over and upon which the said defendant was, then and there, running divers locomotive en- gines and railroad cars," — although not ac- curate in form, the words "then and there " obviously refer to the time and place pre- viously mentioned, which appear in the cap- tion ; no other time and place having pre- ceded the phrase ',' at the circuit aforesaid," in the averment, the venue is laid with suf- ficient accuracy. So, where the second and subsequent counts in the declaration allege the act complained of to have been com- mitted "at the circuit aforesaid," and that the defendant " was then and there running certain other locomotive engines and rail- road cars," wiiereby certain other described stock were killed, and the plaintiff thereby sustained great damage, the venue in these subsequent counts in the declaration was laid with sufficient accuracy. St. Louis, J. &* C. R. Co. V. Thomas, 47 ///. 116. In an action under the Indiana statute, against a company, to recover damages for killing or injuring stock, the plaintiff must allege in his comp'.aint, and prove on the trial, as a jurisdictional fact, that the injury complained of occurred within the county wherein such action is commenced. Evans- ville &* C. R. Co. V. Epperson, 59 Ind. 438- If such averment is omitted, the objec- tion to the complaint may be raised by answer or by demurrer assigning want of jurisdiction, but not by demurrer assigning failure to state facts sufficient. If the ques- tion of jurisdiction is not so raised, it is not waived, but the objection may be raised by motion in arrest of judgment. The failure to prove such fact is not a ground for a ANIMALS, INJURlliS TO, liitO, :t:il. 249 motion in arrest of judgment. Toledo, W. &* W. R. Co, V. Milligan, 52 Ind. 505. But it is not necessary that tiie proof be made by direct or positive testimony; it will be sutiicient if facts are proved from which it can be reasonably inferred. Louis- ville, N. A. &• C. A'. Co. v. /C/ous, 82 /nd. 357. In an action prosecuted under the Kan- sas stock law of 1874, the bill of particulars must state or show that the stock were in- jured or killed in the county in which the suit was commenced, St. Louis &• S. F. R. Co. V. Byron, 24 Kan. 350. Hadley v. Cen- tral Branch U. P. R. Co., 22 Kan. 359. Kan- sas City, Ft. S. Eng. R. Cas. i8i, 40 Kan. 734, 19 Pac. Rep. 791. IVic/tita &- C. R. Co. v. adds, 47 Kan. 274, 27 Pac. Rep. 991. In an action for damages arising out of its neglect to fence its railroad where it crossed the plaintiff's land, the want of venue in the declaration — held, cured by the statute (Com p. L. 1871, § 6051), where the injury complained of was located terri- torially upon land in the county where the suit was brought. Trial by the court stands in the same equity in this regard as trial by jury. Grand Rapids &* I. R. Co. v. South- wick, 30 Mich. 444. The venue was sufficiently laid in the fol- lowing cases : Where the complaint in an action under the statute showed the killing to have oc- curred in the county where the action is brought. Detroit, E. R. &* /. R. Co. v. Bar- ton, 61 /nd. 293. Where the complaint in action under statute alleged that the killing had occurred in the county where the action was brought, and that, at the point where the stock en- tered upon the defendant's railroad and were killed, such road was not " securely fenced." Detroit, E. R. &* /. R. Co. v. Blodgett, 61 /nd. 315. Where the complaint in an action under the statute (§ 4026) averred that the road was located upon a certain section of land in the county where the action was brought, that a portion of the road upon said section was not fenced, and by reason thereof the stock went upon the road and were then and there injured. Louisville, N. A. &* C. R. Co. v. Wilkerson, 83 Ind. 153.— Following Toledo, W. & W. R. Co. v. Cory, 39 Ind. 218. Where the complaint alleged that the company was indebted to the plaintiff in a certain sum " for a brown mule killed by the cars and locomotive of the defendant, run," etc., "and passing through the said county of Dearborn, state of Indiana, at said county of Dearborn." /ndianapolis &• C. R. Co. V. McKinney, 24 /nd. 283. Where the plaintiff alleged that the de- fendant company owned and operated the road over and across the plaintiff's premises in Reno county, and that the defendant killed the plaintiff's cow "on the said rail- way track of said defendant and by the operation of said railway," and no other railroad or railway track is mentioned in the pleadings except the one through the plaintiff's farm. Wichita &• C. R. Co. v. Gidds, 47 Kan. 274, 27 /'ac. Rep. 991. 330. Must not allege legal couclu- sioiiN.— A complaint against a railroad company for killing live stock, which al- leges that the " road was not fenced as re- quired by law," states a legal conclusion and is bad. /ndianapolis, /'. &* C. R. Co. v. Bishop, 29 /nd. 202.— Distinguishing In- dianapolis & C. R. Co. V. Adkins, 23 Ind. 340. Overruling Toledo & W. R. Co. v. Fowler, 22 Ind. 316.— Distinguished in Indianapolis, B. & W. R. Co. v. Lyon, 48 Ind. 119. Followed in Indianapolis, C. & L. R. Co. V. Robinson, 35 Ind. 380; Pitts- burgh, C. & St. L. R. Co. V. Keller, 49 Ind. zw.—JeffersonvilU, M. &* /. R. Co. v. Under- hill, 40 /nd. 229.— Distinguished in In- dianapolis, B. & W. R. Co. V. Lyon, 48 Ind. 119. Explained in Jeffersonville, M. & I. R. Co. V. Adams, 43 Ind. 402. But in an action, under the statute, against a company for injury to an animal, the alle- gation that "the road was not securely fenced as required by law " is not the state- ment of a mere conclusion of law, and is a sufficient allegation as to the fencing of the road, /ndianapolis, B. &* W. R. Co. v. Lyon, 4,% /nd. 119. — Distinguishing Indianapo- lis, P. & C. R. Co. V. Bishop, 29 Ind. 202 ; Indianapolis, C. & L. R. Co. v. Robinson, 3$ Ind. 380; Jeffersonville, M. & T. R. Co. v. Underbill, 40 Ind. 229. 331. Need not allege evidential facts.— The degree of negligence on the part of the company is an evidential fact, and gross negligence may be proved under an allegation of negligence. Chicago, B. &• Q. R. Co.,v. Carter, 20 ///. 390. A petition by a railroad company charg- ingthat the animals of defendant unlawfully and by reason of the negligence of defend- •1 ! I \ \- % .•:)U AiNIMALS, 1NJIRII<:S TO, ;i.* O. R. Co., ij W. Va. 628. - FoLLOWKD IN Searle v. Kanawha & O. R. Co., 37 Am. & Eng. R. Cas. 179, 32 W. Va. 370, 9 S. E. Rep. 248; Unfried v. Balti- more & O. R. Co., 34 W. Va. 260. 832. Certainty — Iiideflniteiiess.— (l) What allegations are sufficient.— 10 x^- cover damages for killing a cow, an averpient in the complaint that the engine was "so negligently operated by defendant's agents that plaintiff's cow was killed," and that said cow was killed on account of said neg- ligence, is sufficiently certain and definite. Western R. Co. v. Lazarus, 88 Ala, 453, 6 So. Rep. 877.— Applied in Stanton v. Louisville & N. R. Co., 91 Ala. 382. To recover damages for injuries to plain- tiff's horse, which was run over and killed by a passing train, an averment that the defendant did, "because of the negligence or want of skill of its employ6s in the man- agement or running of said train, locomo- tive, or cars, run over, kill, or disable" the animal ; or did, " because of the negligence or want of skill of the employes of said de- fendant, run over, kill, or injure" it — is each sufficiently certain and definite in the statement of facts constituting negligence. East Tenn., V. «S- G, R. Co. v. Watson, 90 Ala. 4\,7 So. Rep. Si y An averment in the complaint for the killing of a mule, "that the defendant, without any fault or negligence on plain- tiff's part, carelessly, negligently, and wrongfully ran its train over and upon the plaintiff's brown horse mule," is a sufficient allegation of the pirticular act of negli- gence complained of to withstand a motion to make more specific. Ohio &* M. R. Co. V. Craycraft, 5 Ind. App. 335, 32 A^. E. Rep. 297.— Following Cincinnati, H. & D. R. Co. V. Chester, 57 Ind. 297. In a complaint for killing a horse which had wandered upon the track, the com- plaint, among other things, stated that the liorse entered upon the track immediately north of the city of La Fayette. A motion to make the complaint more specific as to the point where the horse entered the track was correctly overruled. Louisville, N. A. &* C. R. Co. v. Consolidated Tank Line Co,, 4 Ind. App. 40, 30 N. E. Rep. 1 59. A complaint which charges that the company, by its servants, purposely and wilfully ran its locomotive engine and train upon and against the plaintiff's cattle, thereby killing and injuring them, is suf- ficiently specific. Louisville, E. &* St. L, R. Co. V. Hart, 2 Ind. App. 130, 28 N. E. Rep. 218. To recover for negligently killing a horse, the complaint alleged that the de- fendant was a corporation and operated a railroad; that because of its negligence in failing to repair a certain fence, culvert, and cattle-guard, which it was bound to repair, the plaintiff's horse, without plaintiff's fault, came on the track, and by reason of defendant's negligence in moving its cars was killed. Held, that the complaint stated a cause of action in a sufficiently definite manner. Downs v. Central Vt. R. Co., 38 A'. Y. S. R. 228, 14 N. Y. Supp. 573, 60 Hun 580. (2) W/tat a/legations are not sufficient. — In an action under Alabama Code, § 171 1, to recover for stock killed, it is necessary to state in the complaint the time when and the place where the killing or injury oc- curred, whether the action be before a jus- tice of the peace or in the circuit court, and a complaint stating only the month and the county is bad on demurrer. East Tenn., V. &* G. R. Co. v. Carloss, 77 Ala. 443.— Distinguished in South and N. Ala. R. Co., V. Schafner, 78 Ala. 567. The general allegation, in a declaration, of " damages done to this plaintiff's stock by defendant's engines passing over said railroad," etc., is not sufficiently precise to warrant a recovery for the destruction of a colt run over by a train ; this was a specific act, not so necessarily caused by the neglect of fencing that defendant could be ex- pected to meet the charge without having it pointed out directly. Grand Rapids &* /. R. Co. v. Southwick, 30 Mich. 444. 333. Duplicity— Statini; more than one cause of action in one count.— (i) Bad because of duplicity, — A count in a declaration averred that a company failed to to ford of ini ANIMALS, INJURIliSTO, :);{4-3.')0. •T)! fence its road, und iluit a iiaiii was run, con- ducted, and directed carelessly, wliercby plaintitl's liorse was killed. Held, that plaintilT might recover on proving either ground ; that the declaration was obnoxious to a demurrer for duplicity, but that both grounds were traversed by filing the general issue. Chicago, B. tS>» Q. R. Co. v. Magee, fxtlll. 529. In an action brought to recover for- the value of a cow allegcJ to have been killed at a crossing by a train of defendant, plaintiff charged negligence in not performing a statutory duty to ring a bell or blow a whis- tle before crossing a public highway, and, by leave of trial court, filed what he called an amendment to his declaration, stating facts which would show that the crossing was a very dangerous one, and that the railroad company ran its trains over the crossing at a high rate of speed, and in a reckless, dan- gerous manner. This amendment attempted to make out a case of common-law negli- gence. Held, on a general and special de- murrer by defendant, that two distinct causes of action cannot be set up in a single count of a declaration, and that judgment for plaintifl be reversed for error of court below in overruling demurrer to the amended declaration, which set up both a common-law and a statutory cause of action. Louisville, E. &* St. L. R. Co. v. Hill, 29 HI. App. 582. A petition against a railroad for killing stock, uniting in one count a cause of action for not maintaining fences, etc., also a cause of action at common law for not sounding the bell, etc., at a crossing, and a cause of action for negligence, is bad. Harris \. IVa- bash R. Ctf., 51 Mo. App. 125. (2) Not bad because of duplicity. — In an action for killing stock, brought under § 261 1, Missouri Rev. St. 1889, the plain- tiff may allege a failure to maintain fences witli openings and gates therein, and to maintain cattle-guards, and proof of either, with proof of the other necessary allegations, will authorize a recovery, and there is but one cause of action stated. Woods v. Mis- souri, K. &* T. R. Co., 51 Mo. App. 500. Negligence in fact may consist of any number of negligent acts preceding the in- jury and leading up to it and contributing to it. In stating a cause of action, there- fore, the plaintifT is not obliged to select one of these acts and rely upon it. And held, in this action, which was one for the killing of stock by a railway train, that the petition, which alleged in one count a number of neg- ligent acts on the part of the company con- ducing to the injury complained of, stated but a single cause of action. Hill \. Mis- souri Pac. K. Co., 49 Mo. App. 520. — Not FOLLOWING Hoffman v. Missouri Pac. R. Co., 24 Mo. App. 546; Welch w. Hannibal & St. J. R. Co., 20 Mo. App. 477. :I34. Several euiiutN lor sniiie ciuin« of action.— In a complaint to recover for stock killed, in one count whereof the stock are described as common stock, and in another as stock of full blood, such dif- ference is sufficiently material to sustain and render proper separate counts. Toledo &* IV. R. Co. V. Daniels, 21 //id. 256. Plaintiff can unite in the same petition two counts for the same cause of action, one under § 2124, Missouri Rev. St. 1889, and is entitled to go to the jury on both, and will not be compelled to elect. Straub v. Eddy, 47 Mo. App. 189.— Following Lin- coln V. St. Louis, I. M. & S. R. Co., 75 Mo. 27 ; Browncll 7'. Pacific R. Co., 47 Mo. 239. Where several cattle are killed by an en- gine at one and the same time, all damages resulting therefrom belong to one cause of action, and the peiitioii should contain but one count. Binicker v. Hannibal iS~» St. J. R. Co., 83 Mo. 660.— Quo'lF.i) IN Lanibt/. St. Louis Cable & W. R. Co., 33 Mo. App. 489. Under § 3220, Compiled Laws of Utah, 1888, providing for ihe joinder of several causes of action arising out of injuries to property, the plaintiff may unite two causes of action, each for the killing of the same horse, charged in different ways. Jensen v. Union Pac. R. Co., 6 Utah 253, 21 Pac. Rep. 994- 335. Joinder of causes of action —Several counts.*— When a pleader in- cludes in his statement or petition three distinct causes of action for killing live stock, it is unnecessary for him to repeat allegations which are applicable to them all. It is sufficient that such allegations refer to and are applicable to each count which might be defective without them. Bricker v. Missouri Pac. R. Co., 83 Mo. 391. 336. Mi^oinder.— Where a complaint for killing plaintiff's live stock alleged that the road was not securely fenced, and was otherwise sufficient for an action founded on the statute, and in addition charged the *Seea»/r, 203, 303. i :: I 5ii ' 869 ANIMALS, INJURIES TO, MM-iiiiiK M \ \ company with negligence, biii did nut ullcgc thai tlie plaintiff was free fruin negligence, it was insufficient as a complaint nt common law. But instead of treating the complaint as bad, for misjoinder o( causes of action, the allegations as to negligence might be disregarded ;is surplusage. JeffersotrvilU, M. &* I. A*. Co. V. Lyon, 55 Ind. 477. Two or more causes of action cannot be united in the same suit for the purpose of giving the circuit court or the common pleas court jurisdiction. Jeffersonville, M. &* I. R, Co. V. Brei'oort, 30 Ind, 324. Indi- anapolis &» C. A'. Co. V. Kercheval, 24 Ind. 139. Toledo, B. . Levistun, 97 Ind. 488. — Cincinnati, H. &* D. R. Co. v. Levis- ton, 19 Am. (S- Eng. R. Cas. 633, 97 Ind. 488. —Distinguishing Indianapolis «S M. R. Co. v. Solomon, 23 Ind. 534.— Reviewed in Wabash R. Co. v. Williamson, 3 Ind. App. 190. An allegation that the cattle " entered upon the said railway, and were then and there by the locomotive, cars, and carriages of the said defendant killed," is sufficient to show that defendant was in possession of the road and operating the train. Wabash, St. L. &* P. R. Co. V. Lash, 103 /nd. 80, 2 ^V. E. Rep. 250.— Distinguishing Wabash, St. L. & P. R. Co. V. Rooker, 90 Ind. 581. —Pittsburgh, C. &* St. L. R. Co. v. Hunt, 71 /nd. 229. In a joint action against two railroad companies for killing stock, the action being in the nature of a tort, it is not necessary to show in the complaint the relation that the roads sustain to each other. That is mattrr of proof, and there may be a joint or several liability, according to the facts. Indian- apolis, C. &> L. R. Co. v. Warner, 35 /nd. 515.— Distinguished in Jeffersonville, M. & I. R. Co. V. Downey, 61 Inri. 287. (2) Allegations not sufficient. — A complaint under the statute against a railroad company for killing stock, which avers that the act was done by "the defendant, or some lessee thereof, or other person unknown to the plaintiff," is bad on demurrer. Wabash, St. L. &* P. R. Co. V. Rooker, \ j Am. laiiitiir.'*'— Under the stock-killing act of Colorado as amended in 1885, before a per- son could claim that a railway company owed him any duty in respect to fencing its railway, it was necessary for him to allege that he was the owner or holder of land ad- jacent to such railway, and that he had re- quested the railway company to fence its line and put in cattle-guards and gateways; moreover, according to said act, the railway company could not, by complying with such reqiiest.exempt itself from the unconditional liability otherwise imposed, except as against the party making the request. Wadsworlh V. Union Pac. R. Co., 56 Am. <&* Eng. R. Cas. 145, 18 Colo. 600. Where the plaintiff is the mere occupant of the land, and not the owner, he must al- lege that neither he nor the owner has re- ceived compensation for fencing; it is not sufficient to allege that he has not received such compensation ; and from the allegation that he " occupied " the premises the pre- sumption must arise that he was not the *See ante, 313-310 ; MA 445. 471. real owner. Louisville &* X. Co. v. Belcher, 40 Am. &> Eng. R. Cas. 328, 89 Ky. 193, I3 .V. W. Rep. 195. A declaration against the Ontario, Sim- coe, & Huron Railway Co., alleging that plaintiff's horses were hiwfully upon certain la;id belonging to one M., out of which the defendants had taken a strip for their ro'td ; that the proprietor of said lands desired them to fence off the land so taken from his land, yet defendants neglected to do so, by means whereof the pluintitT's hoises, then being upon said land, escaped there- from onto the railway and were killed by the train, was held bad on demurrer, as it was not averred that the horses were on the land with the consent of its owner, and de- fendants therefore were not liable. Auger V. Ontario, S. 6- //. A'. Co., 16 U. C. Q. B. 92. —Distinguished in McFie v. Canadian Pac. R. Co., 2 Man. 6. Quotk.o in Mcin- tosh V. Grand Trunk R. Co., 30 U. C. Q. B. 601. 341. Need not allege that injury occurred on dcfendant'H track.— In an action on the case against a railroad corporation for killing cattle by carelessly and unskilfully running its locomotives against them, the declaration need not aver that this was done on the defendant's rail- road track. Baylor v. Baltimore &• O. R. Co., 9 W^. Va. 270. Housatonic R. Co. v. Waterbury, 23 Conn. loi. 342. Alleging negligence on part of company, generally. — (i) State- ment of the rule. — A complaint for killing stock to be good at common law must allege negligence on the part of the railroad com- pany. Toledo, IV. &• IV. R. Co. v. Weaver, 34 Ind. 298. Negligence on the part of a railroad com- pany is the basis of the right of the owner of live stock to recover in an action at com- mon law, and negligence of the company or of its servants must be averred in the dec- laration and be proved. Savannah, F. &* W. R. Co. V. Geiger, 29 Am. &* Eng. R. Cas. 274, 21 Fla. 669, 58 Am. Rep. 697. Ste- venson v. Ne^v Orleans Pac. R. Co., 35 La. Ann. 498. Orange, A. «S-» M. R. Co. v. Miles, 76 Va. 773. Jacksonville, T. iS- A'. W. R. Co. V. Garrison, 30 Fla. 557, 11 So. Rep. 929. Terre Haute, A. &* St. L. R. Co. v. Augustus, 21 ///. 186. Indianapolis, P. &• C. R. Co. v. JVilliams, 1 5 Ind. 486. Indianapolis, P. 6^ C. R. Co. V. Sparr, 15 Ind. 440. Terre Haute &- R. R. Co. v. Smith, 19 Ind. 42. il ij jj Hi! 954 ANIMALS, INJURIES TO, .142. 11 ili'i 4 mi Toledo, W. 6- W. A'. Co. v. Weaver, 34 InJ. 298.— DiSTINOUlSHKU IN Wabash R. Co. v. Forshec, 77 liul. 158. Followed in To- ledo, W. & W. R. Co. V. Cory. 39 Ind. 218. — Baltimore, P. &• C. A. Co. v. ^luderson, 58 Ind. 413.- For.i OWKU in Cincinnati, W. A M. R. Co. V. Stanley, 4 Ind. App. 364. — West V. Hannibal &^ St. J. A'. Co., 34 Afo. And a complaint in such an action is de- murrable unless it avers that the injury was negligent, or the result of negligence on the part of the defendant, its agents, or servants. Sout/t (Sx iV. A/a. A'. Co. v. Htigood, 53 Ala. 647.— guoTiNO Mobile & O. R. Co. v. Will- iams, 53 Ala. 595. Under ^ 4345 of the Texas St., imposing absolute liability for killing stock, a petition in an action for killing stock need not allege negligence on the part of the company in operating its trains, nor in failing to fence its road. Houston &• T. C. A'. Co. v. Lough- briiige, i Tex. App, (Civ. Cas.) 754. (2) Illustrations. — Under the Arkansas statute a complaint alleging that stock be- longing to plaintiiT were injured on a railroad track by defendant's cars, states a prima facie case. .SV. Louis, I. M. &* S. A'. Co. v. lirown, 49 Ark. 253,4 S. W. Hep. 781. In an action against a railroad company for causing the death of a horse, plaintiff filed a complaint averring that while the horse was being lawfully driven along a pub- lic road for the purpose of crossing defend- ant's track, defendant's servants negligently posted an engine at said crossing and negli- gently allowed steam to escape from unusual parts of said engine, whereat said horse be- came alarmed, reared up, and fell, breaking its neck. Held, that the complaint was good, the injury being the natural and prox- imate result of the defendant's negligence. Louisville &* N. R. Co. v, Schmidt, 8 Am. &' Eng. K. Cas. 248, 81 Ind. 264. A complaint against a company to recover damages for injury to a horse alleged to have been caused by the negligence of the defendant in not having its switch premises in a safe and suitable condition for use by persons loading cars for shipment of freight on the defendant's mad, averred that the plaintiff was engaged with his team of horses in loading timber at the usual place for loading timber on cars, which were on the defendant's switch ; that by the removal of a stake a hole had been left in the de- fendant's right of way, at or near said load- ing place, which the defendant had negli- gently omitted to fill ; that while the plain- tiff was engaged with his team of horses in loading timber at said place one of his horses stepped into said hole and was in- jured ; t^iat a covering of snow prevented plaintifi from seeing said hole; that said injury 10 the horse was without negligence on the part of the plaintiff. Held, that the compl'iint stated a good cause of action. Chicago &* I. C. K. Co. v. Deliaum, 2 Ind. App. 281, 28 A'. E. Rep. 447. A declaration to recover for killing a horse alleged that defendant was the owner of the railroad and operating it by running locomotives and trains thereon ; that plain- tiff's horse strayed and got upon defendant's railroad, and that defendant so carelessly, negligently, and improperly ran, conducted, and directed the locomotive and train of defendant, as that said locomotive struck plaintiff's horse with great force and viol- ence and killed it. Held, that the declaration showed a good cause of action at common law. Rockford, R. I. W. R. Co, V. Overton, 117 Ind. 253, 20 A'. E, Rep, 147- A complaint against a company charged that through the fault, misconduct, and negligence of the servants and employes of the defendant in running the locomotive and train out of their regular time and at a high rate of speed, to wit, forty miles an hour, and without giving any of the proper signals of their approach, the locomotive struck and killed two mules of the plaintiff, then and there upon the railroad track, at a point where a highway crossed the railroad. Held, a sufficient statement of negligence. Indianapolis, C, &* L, R, Co, v. Hamilton, 44 Ind. 76. 340. Allegation as to defectlvel}'- coiiHtructetl croHHing.— In an action for an injury to plaintiff's horse at a railway crossing, alleged to have been carelessly constructed, and permitted to remain in an unsafe condition, a complaint is sufficient which alleges that the plaintiff had no knowledge of the unsafe condition of the crossing, and that while the plaintiff's em- ploy6 was riding the horse over the crossing in a careful manner, one of its feet was caught in a space improperly between the iron on one side of the railroad track and the boards of the crossing, and the horse in trying to extricate itself received such in- juries that it was rendered worthless. To- ledo, St. L. 6- A'. C. R. Co. v. Milligan, 2 Ind, App. 578, 28 A'. E. Rep. 1019. 347. defect Ively-constructod gate, — A petition alleging that, by reason of the negligent construction of a gate of unsound and unsafe material in the defend- ant's right of way, the plaintiff's colts es- caped from a pasture through said gate upon the defendant's track and were killed ; that the notice and affidavit required by law had been served upon the defendant ; that said colts were of a value named ; and ask- ing judgment in double said sum, is suffi- cient to show a cause of action under § 1289 of the Code, though such statute is not spe- cifically pleaded. Morrison v. Burlington. C. R. &* N. R. Co., 84 Iowa 663, 51 N, W. R>p. 75. Ij i! ibCj ANIMALS, INJURIES TO, «48, .'149. J I\ 348. Insufficiency of cattle- (;iiard.— A declaration for an injury caused by the insutliciency of a cattle-guard is demurrable in failing to state the particu- lars in which it v/hs insufficient. Smead V. Lake Shore <3- M. S. Ji Co., 23 Am. &- Eng. K. Cas. 241, 58 Afic/i. 200, 24 N. IF. Hep. 761. 340. Alleging comiriany's failure to fence. — (i) General/^', -in actions under the stock-killing laws, making companies liable for not fencing their tracks, the plain- tiff's pleading must iillege that the defend- ant's road was not fenced. Kansas Pac. R. Co.v. Taylor, 17 Kan. 566.— Followed in St. Louis & S. F. R. Co. v. Ellis, 25 Kan. 108.- Toledo, W. &> ly. K. Co. v. Weaver, 34 Ina. ;o8. In an actiu.n under the Kansas statute of 1874, the petition must show that the rail- road was not inclosed with a good and lawful fence. Hadley v. Central Branch U. P. R. Co., 22 Kan. 359.— Followed in St. Louis & S. F. R. Co. V. Ellis, 25 Kan. 108. Where plaintiff relies upon the failure of the railroad company to fence its track ac- cording to a contract, that fact must be al- leged in the complaint. Gulf, C. &* S. F. R, Co. V. Washington, 49 Fed. Rep. 347, 4 U. S.App. \2\,\ CCA. 286. In an action to recover damages resulting to domestic animals from the failure of a railroad company to '■onstruct and maintain good and sufficient fences along the line of its road, as required by the act of .'\pril 26, 1871 (68 Ohio L. 78), the facts upon which the company's liability depends must be stated in the petition, and, if not admitted, must be established by the proof. An al- legation that the defendant was, by law, bound to fence and inclose said railroad, tenders an immaterial issue, and is not to be take., as true because not denied. Balti- more &* O. Ji. Co. V. Wilson, 31 Ohio St. 555- In a complaint to recover for stock killed by a locomotive upon a railroad track, an allegation that the track was not fenced where the - nimal was killed is not neces- sary. Wtioash R. Co. v. Forshee, 77 Ind. 1 58. (2) Illustrations. — An allegation that dam- age done was caused by the failure to main- tain a proper fence, includes all defects in the fence, and does not necessitate par- ticular reference thereto. McCoy v. South- ern Pac. R. Co. (Cal.). 26 Pac. Rrfi. 629. ,\ complaint in an action for killing; stock. which alleges that the fence along the road took fire, and the company's servants in ex- tinguishing the fire threw down a gate in the fence which was negligently left open, whereby plaintiff's cattle escaped from his field near by and were killed on the track, is equivalent to an averment that the fence was not properly maintained, and is there- fore sufficient. Indianapolis, P. &* C. R. Co. v. Truitt, 24 Ind. 162.— Distinguished in Cleveland, C. ,C. & !. R. Co. v. Brown, 45 Ind. 90. Where a petition alleges that the line of a railway runs through a county where a cow was killed, and that the line of the railway through the county and at the place where the cow was killed was not fenced, and fur- ther alleges that the cow was killed at a place where the railroad could be fenced, the alle- gations are sufficient concerning the failure to inclose the road with a fence to render the railroad company liable under the stock law of 1874. St. Louis &* S. F. R. Co. v. Dudgeon, 28 Kan. 283,— Distinguished in St. Louis & S. F. R. Co. V. Mossman, 30 Kan. 336. The plaintiff alleged in his original bill of particulars that " said colt was injured and killed by said defendant at a place where said roadbed and railway were not fenced, but ought to have been fenced, as required bj law, to keep stock from crossing on, over, along, and nca>" the railroad and bed of the defendant ; and that said animal was not in- jured and killed at or near any public road orcrossing." IMd, under the circumstances of this case, that said allegation is sufficient with regard to alleging the want of a suffi- cient fence. Missouri Par. R. Co. v. Piper^ 26 Kan. 58. General allegations of the continuous operation of the road, and the continuous neglect to fence it, and that damages result- ed therefrom, are sufficient to authorize a recovery foi such natural mischiefs as in- variably follow the destruction of fences and exposure of lands, and which cannot easily be itemized. Grand Rapids &> I, R. Co. v. Southwick, 30 Mich. 444. A complaint in an i\cLion for killing stock, alleging that they w<»nt, without any fault on the part of the plamtiff, upon defendant's track and were struck and killed at a point where the road passed along t^lrough an ad- joining inclosed and cultivated field, where defendant had failed to bulid and maintain lawful fences. SuiTiclcnliy avers a failure to fence. T. rry v. Missouri Pac. R. Co., 77 '■ ANIMALS, INJURIES TO, 350,351. 967 Afo. 254.— Followed in Campbell v. Mis- souri Pac. R. Co., 78 Mo. 639. Where it appears from the complaint that defendant's railroad tnick crossing plaintiff's farm was unfenced, and that plaintiff's bull went upon the track from said farm, without plaintiff's fault, and was killed, a cause of action is stated. Oregon K. &* N. Co. v. Dacres, 1 Was/i. 195, 21 Par. /Cefi. 41$. 350. Allc{;iiiK coiiipany'H failure to '♦ securely " fence.— A complaint for killing un animal, which, with the other necessary averments, alleges that the rail- road "was not securely fenced," is good, and if the railroad could not properly be fenced at the place, the fart is matter of defence concerning which the complaint need not make any averment. Trrre Haute iLV. /. /»'. Co. V. Penn. 1 5 Am. <&- Eng. R. Cas. 561, 90 //ti/. 284. To render a company liable under the statute for killing stock, it must be alleged and proved that the road was not securely fenced. It is not sufficient to aver that the road " was not fenced according to law." Indianapolis. C. Sr* L. R. Co. v. Robinson, 35 hut. 380, 4 Am. Ry. Rep. 544.— FOLLOWING Indianapolis, P. & C. R. Co. v. Bishop, 29 Ind. 202. Nor following Indianapolis & C. R. Co. V. Adkins, 23 Ind. 340. Over- ruling Toledo & W. R. Co. v. Fowler, 22 Ind. 316.— Distinguished in Indianapolis, H. & W. R. Co. V. Lyon, 48 Ind. 1 19. A complaint, in an action for killing stock, which avers that the road was not fenced at the place where the animals were killed, is equivalent to averring that the road is not " securely fenced in," within the meaning of Indiana act 1863, p. 26, § 7. Indianapolis &* C. R. Co. V. McKinney, 24 /nd. 283. A complaint against a company for stock killed on the road where it was not fenced will sufficiently aver the want of fence, if it alleges " that said railroad was not, at the time and place aforesaid, fenced in by said defendant in manner and form as in the statute provided ; " and under such averment proof may be made that the road had not been duly fenced in at all, or, if it had, that the fence had not been properly maintained. Toledo &* IV. R. Co. v. Fowler, 22 Ind. 316. —Distinguished in Bartlett v. Dubuque & S. C. R. Co., 20 Iowa 188. Overruled IN Indianapolis, P. & C. R. Co. v. Bishop, 29 Ind. 202 ; Indianapolis, C. & L. R. Co. v, Robinson, 35 Ind. 380. I D. R. D.— 17. 351. AlleKiiig that road was not fenced at place of entry.*— (1) Gener. ally. — The declaration must show where the stock got on the track, but it is immaterial where the killing was done. Great Western R. Co. V. Hanks, 36 ///. 281.— Approved in Cecil V. Pacific R. Co.. 47 Mo. 246. Quoted IN Alsop V. Ohio & M. R. Co., 19 III. App. 292. A complaint in an action for killing stock, which contains no allegations from which it might not be as reasonably inferred that the point where the animal entered on the road may have been where the railroad company was under no duty to fence as where the law requires 't to fence, is insuffi- cient. Moreland\. Missouri Pac. R, Co., 17 Mo. App. 77.— Following Perrinuez v. Missouri Pac. R. Co., 78 Mo. 91. In an action against a railroad under Missouri Rev. St. 1889, j! 2124, for killing stock, it is not necessary for the plaintiff to allege that the defendant was required to fence its road where the animal entered upon it. Radcliffe v. St. Louis, I. M. &* S. R. Co., 90 Mo. 127, 2 S. IV. Rep. 277. In an action under § 809, Missouri Rev. St., for the killing of stock, it is neces- sary for the statement or petition to allege, by direct averment or necessary implication, that the stock got ur.ni r'efendant's railroad track at a point whf., «' . St. Louis, I. M. & S. K. Co., 79 Mo. 196; Dryden v. Smith, 79 Mo. 525; Jackson v. St. Louis, I. M. & S. R. Co., 80 Mo. 147.— ytjOTKD IN Summers v. Hannibal & St. J. R. Co,, 29 Mo. A pp. 41. But under the Oregon statute for killing or injuring live stock on an unfenced track, it is not necessary to allege the point at vhich the animals entered upon the track of the railroad. Eaton v. Orei^on K. &' ^V. Co., 45 Am. (So Ktig. A'. Cas. 481, 19 f/Y^'. 371, 24 /'rtt-, AV/. 413. (2) Suffiiiint a/!fi,uitioiis.—\t. is sufficient to allege, on that point, that the place where the stock entered upon the track " was not fenced." Louisville, iV. A. &• C. K. Co. v. S/ianklin, 19 Am. &^ Eng. R. Cas. 552, 94 Ind. 297.— Followed in Louisville, N. A. & C. R. Co. V. Pixley, 94 Ind. 603. Although in an action for the killing of stock by a railroad it is essential to allege that the animal was killed at a point on the track where it was the duty of the company to erect and maintain fences, and it is also essential to aver that the animal got upon the track where it was the company's duty to erect and mai.itain fences, these aver- ments may be inferentially made, and it is sufficient if the essential facts are neces- sarily inferred. Briscoe v. Missouri Pac. R. Co., 25 Mo. App. 468. A complaint under the 43d section of the railroad law omitted to aver that the cattle injured came upon the track at a point where it was not fenced, but did state that the in- jury was occasioned "solely on account of the defendant's failure to maintain fences." Held, that this averment excluded every other implication than the one that the cattle came upon the track where it was not fenced, and sufficiently supplied the omis- sion. Fields V. Wabash, St. L. 6- P. R. Co., 80 Mo. 203. A complaint which charges that plaintiff's horse went upon defendant's track through defendant's f^'ult and was kdled by reason of its failure to fence its track, and charges that the same was not done upon a high- way crossing or depot grounds, is suffi- cient, though it does not directly charge that the horse went upon the tmck where the company was bound to fence. Blomberg V. Stewart, 67 Wis. 455, 30 A'. W. Rep. 617, (3) Insufficient alligations. — To recover for stock killed upon the company's road, it is not enougii to aver in the declaration that the road was not fenced at the place where the injury occurred, it not appearing from the pleading bi-t that the stock may have gone on the track at another place, and where the road was fenced; and in averring that the road had been opened for six months, it is not sufficient if such averment relates only to the place where the injury occurred, it not being shown but that the stock strayed upon the track at another place, nor where the road had not been opened for six months before the accident occurred. Toledo, P. ^^ W. R. Co. v. Darst, 51 ///. 365.— DisTlNGUisHi.VG St. Louis, A. & T. H. R. Co. V. Linder, 39 111. 433. A statement of a cause of action, under Missouri Rev. St. 1879, p 809, for double damages for the killing of stock by a rail- road company, is fatally defective if it fails to show that the stock came upon or was killed on the railroad track at a place where the railroad company was required by statute to fence. Wood v. Kansas City, Ft. S. tS^ M. R. Co., 39 Mo. App. 63.— Distinguish- ing Jackson i>. St. Louis. I. M. & S. R. Co., 80 Mo. 147. Following Ward v. St. Louis, I. M. & S. R. Co., 91 Mo. 168. A petition which oni) alleges that the de- fendant's cars ran over plaintiff's horses where its road was not inclosed by a lawful fence, and not in the crossing of a public highway, is not sufficient, for it must allege that the animal entered at a place which should have been but was not fenced. Smith V, Missouri Pac. R. Co., 29 Afo. App. 65. In an action for killing plaintiff's hogs, founded on the 43d section Railroad Law, the petition failed to state that the hogs came upon defendant's track at a point where defendant was required by law to fence. Held, that it was for this reason fatally defective. Asher v. St. Louis, I. M. &- S. R. Co., 19 Am. iS^ f:ng. R. Cas. 593, 79 Mo. 432. — FoLLOWK.D in Stanley ?'. Mis- souri Pac. R. Co., 84 Mo. 625. Rkviewed IN Jackson v. St. Louis, I. M. & S. R. Co., 80 Mo, 147. 352. Alleging failure to "se- curely " fence nt place of entry.— Where an action again.st a railroad » '>p.pany to recover for stock killed is commenced in l-\ ANIMALS, INJURIES TO, 363. 259 the circuit court, it must Lc averred in tho complaint and proved u^>on the trial that at the point where the animals entered upon the track the railroad was not securely fenced. Louis^nlle, E. &* St. L. R. Co. v. Thomas, io6 hid. lo, 5 A'^. E. Rep. 198. It is II ' siiiricienl to allege that a horse \v(iB ki'lcu on the track at a point where it w.i not sufficiently fenced, without showing whether the horse came on the track at a point where it was securely fenced or not. Louisville, N. A. &^ C. R. Co. v. Quade, 19 Ai)i. (S- Eng. > V. 595, 91 Itid. 295. In a complaint under the Indiana statute against a railroad company for the value of iiogs killed by a passing train, it is not sulf'i- cient to .'•Up'?;'*. in regard lo the fence, " that said rai':'.ar: v., is not, at the time and place where sw d i.imals were killed, fenced in by said defendant in manner and form as in the statute provided." Pittsburgh, C. &» .SV. /,. A'. Co. V. Keller, 49 Ind. 211. — Follow- ing Indianapolis, P. & C. R. Co. v. Bishop, 29 Ind. 202.— Followed in Pittsburgh, C. & St. L. R. Co. v. Keller, 49 Ind. 217. In a complaint to recover the value of animals killed by its cars, it is not sufficient to aver, generally, that the road was not se- curely fenced in, etc., without connecting the want of such fence with the injury by an averment that the road was not so fenced at tiic place where the anim C. R. Co. V. Overman. 88 /nd. t i 5. Toledo, IV. I. R. Co. v. Chenoweth, 30 Ind. 366.--10LLOW1NG Indianapolis & C. R. Co. V. Adkins, 23 Ind. 340. A complaint which avers "that at the place and time s;. d animal was killed by defend, nt's locomotive and cars the same was not securely fenced as required by law," isasuTicient averment that the road was not securely fenced at the point where the animal entered upon it. Indianapolis <"•• C. R. Co. v. Adkins, 2t^ Ind. 340. — Approvei. IN Bellefontainc R. Co. v. Suman, 29 Ind. 40. DiSTlNGULSHED IN Indianapolis, P. & C. R. Co. V. Bishop, 29 Ind. 202. Fol- lowed IN Jeffersonville, M. & I. R. Co. v. Chenoweth, 30 Ind. 366. Nor Followed IN Indianapolis, C. &. L. R. Co. 7'. Robinson, 35 Ind. 380. Overruled in Baltimore, O. & C. R. Co. V. Kreiger, 13 Am. & Eng. R. Cas. 602, 90 Ind. 380. :i53. Nofjativiiii; Htntiitory excep- tiouH OH to IciK'iiig.— (I) Illinois.— Pi. declaration, under the Illinois statute, in an action lor killing stock must negative the killing : t all the places where the company is not required by statute to fence, anr must show that the road was open for six months before the killing. Ohio &* M. R. Co. v. lirown, 23 ///. 94. — Explained in Great Western R. Co. v. Hanks, 36 III. 281.— (;>trative the exceptions con- tained in the statute. iV. Louis, A. &• T. H, R. Co. V. Over turf, ly ///. App. 656, mem. In an action for stock killed, under tiie act requiring the roads to fence (Scute's Comp. 953), except at certain places, it is only necessary to negative in the complaint the killing in the excepted places as set out in the enacting clause, and nut those also at the end of the first section of the statute. Great Western R. Co. v. Hanks, 36 ///. 281. — Explaining Chicago, B. & Q. \K.Qo.v. Carter, 20 III. 390; Ohio & M. R. Co. v. Brown, 23 III. 94; Great Western R. Co. V. Bacon, 30 III. 347. Where a statute provides that a railroad company need not fence its track through " uninclosed " lands, a declaration in an ac- tion for killing stock that uses the word "unimproved" is a sufficient compliance with the statute. Illinois C. Ji. Co. v. Wade, \f> III. 115. W'ere the declaration in such a case neg- atives 'n substance all the exceptions in the stature although not in the most formal mannet it is not demurrable on that ground alone. :7. Louis, J. &* C. R. Co. v. Thomas, 47 ill '.!('). Whc.ij plaintiff sues to recover for ani- mal.> killed by reason of the company failing to f ;;ice its track, the complaint should con- tain necessaTV averments that the killing was not within a village or at any other point where the company is not required to fence under the statute. Chicago, B. &* Q. R. Co. v. Carter, 20 ///. 390. — Explained IN Great Western R. Co. v. Hanks, 36 III. 281. A complaint in an action to recover for killing cattle need not negative the killing at a farm crossing. If the track is properly fenced at such place it is a matter of defense, and if not the company is liable. Great Western R. Co. v. Helm, 27 ///. 198.— Di.s TiNUUisHED IN Bartlett v. Dubuque & S. C. R. Co., 20 Iowa 188; Gill v. Atlantic & G. W. R. Co., 27 Ohio St. 240. (2) Indiana. — In a complaint, against a railroad company, to recover under the statute the value of an anim ;1 killed by the cars of such company, it is sufficient to allege that the railroad was not fenced at the place, etc. If the killing was at a point where the company was not required to fence its track, that is a matter of defense, and need not be negatived in the complaint. Ohio &* M. R (^'o.w. McClure,^j Ind. 317. Louisville, X. ^l. &* C. R. Co. v. Kious, 82 Ind. 357. Je£\rsonville, M. &* I. R. Co. v. Lyon, 7;? /'•(/. 107. — DiSTINGUISHKU IN Indianapolis & V. R. Co. v. Sims, 92 Ind. 496. — Louisville, E. (S- St. L. R. Co. v. Hart, 2 Ind. App. 130, 28 N. E. Rep. 218. In an action to recover the value of two horses belonging to the plaintiff, alleged to have been killed by the de- fendant's locomotive and train of cars, where the "iiiplaint charged, inter alia, "tiiat the railroad of the defendant was not fenced at the place where said horses got on the truck and where said horses were killed," the allegation as to want of fence is suffiv,iently definite and certain on a demurrer to the complaint for the want of facts. Louisville, N. A. &• C. R. Co. v. Harrigan, 19 Am. :'s* Eng. R. Cas. 598, 94 Ind. 245. A complaint is sufficient which alleges that stock, being the property of the plain- tiff, had entered upon the defendant's rij ht of way and track at a point where the sa.iic bid been carelessly and negligently left un- fenced, and, whilst there, was, by tiie de- fendant's train of cars, driven into a cut through which such track ran and there killed. Jeffersonville, M. Sf I. R. Co. v. Lyon, 55 Ind. 477. Where the complaint alleged, among other things, that the cattle entered the defendant's "track and right of way at a place where the same was not fenced," the complaint stated facts sufficient to consti- tute a cause of action. The facts that the place where the cattle entered upon the track was a public highway ; that the track could not be fenced at said place ; that the company was not bound to fence it at such place, or any other matters of «1efcnse, were to be taken advantage of by -he defendant. Terre Haute &» I. R. Co. v. Schaefer, 5 Ind. App. 86, 31 A^. E. Rep. 557. A complaint under the sta'nte for the killing of animals is sufficient .. it allege that the right of way was not securely fenced at the point where the animal entered upon the track and was killed ; and if it was not the duty of the com pan;- to fence the roatl at the place in question, such fact >h a matter of defense concerning which the complaint need not make any averment. Chicago &* E. R. Co. v. Brannegan, 5 Ind. App. 540. 32 X. E. Rep. 790. ANIMALS, INJURIES TO, iiSa. 261 (3) Kentucky — Missouri. — The plaintiff must, by his petition, negative an exception which forms a part of the clause imposing the liability. Louisville &* N. R. Co. v. Belcher, 40 Am. &- Eng R. Ciis. 228. 89 A>'. 193, 12 S. IV. Kep. 195. In an action under the statute for double dania^jes for killinj^ stock, the complaint need not specifically alleyc that the injury was occasi()nt'h might have been fenced.— (I) Indiana. — Where the complaint in an action for killing stock alleged that the railroad was not fenced at the place where the animal entered upon the track, it was not necessary to allege or show that it could have been properly fenced at such place. Lake Erie &* IV. R. Co. v. Fishback, 5 Ind. App. 403, 32 N. E. Rep. 346. Louis^'ille, N. A. &• C. R. Co. v. //a//. 19 Am. &■* Eng. R. Cas. 597. 93 /nd. 245. Jeffersonville, M. &* I. R. Co. v. Van- cant, 40 Ind. 233. For if it could not properly be fenced, this is a matter of defense. Louisville, N. A. &* C. R. Co. V. Hughes, 2 Ind. App. 68. 28 N. E. Rep. 1 58. (2) Missouri. — Under Missouri Rev. St. § 2124, providing that railroad companies shall fence their tracks at all points where they may be inclosed by a lawful fence, it is not sufficient to aver that the accident oc- curred where the road was not inclosed by a lawful fence. Russell v. Hannibal &• St. J. R. Co., 83 Mo. 507. The petition in an action brought under the 43d section of the railroad law for the killing of s' uck must show that the killing occurred at a place where the company was required by law to fence its track, and was occasioned by failure of the company to comply with the law. A mere statement that " the railroad was not fenced, and there was no crossing" at the place, is iiisiflficieni. Bates V. St. Louis. I. M. &* S. R. Co., 74 Mo. 60.— Approved in Hudg«'ns v. Hannibal & St. J. R. Co., 79 Mo. 41S Distinguished in Perriquez z/. Missouri Pac. R.Co., 78M0. 91 ; Blakely v. Hann bal & St. J. R. Co., 79 Mo. 388. Followed in Wade v. Missouri Pac. R. Co., 78 Mo. 362 ; Dryden v. Smith, 79 Mo. 525. Review«:d in Jackson v. St. Louis, I. M. & S. R. Co.. 80 Mo. 147. A complaint in such a case, wliicli states the obligation of defendant to fence its track where the accident occurred, and that the animals came upon the tra( k where it was not fenced, and where defcndiint was under obllKHtion to fence, and that they were killed in consequence ; and further states that it happened in the adjoining township to the one where the action is brought, is good, \oung v. Kansas, City. Ft. S. Sf M. R. Co., 39 Mo. App. 52.— Fol- LOWED IN Wood 7/. Kansas City, Ft. S. & M. R. C. . 39 Mo. App. 63. A petition in an action under the 43(1 section of the Railroad Law (Rev. St. 1879, ANIMALS, INJURIES TO, ;353, aSO. 263 § 809) alleged ^hat the sow " strayed upc^n said railroad track and was killed in conse- quence of the failure of defendant to erect and maintain a good and lawful fence on the sides of its said railroad at the point where said sow was killed, as in law it was bound to do." Held, that the petition stated a good cause of action. lUakely v. Hannibal &> St, J. R. Co., 79 Mo., 388.— Dl.s- TINGUISHINO Bates V. St. Louis, I. M. & S. R. Co., 74 Mo. 60. Following Edwards v. K insas City, St. J. & C. B. R. Co., 74 Mo. 117; Belcher v. Missouri Pac. R. Co., 75 Mo. 515. 355. NeccHHity of alleging place of killing.*— In an action under Missouri Rev. St. 1855, p. 649, § 5, for killing stock, a com- plaint which neither charges negligence nor misfeasance, nor facts from which such may be inferred, is insufficient. The complaint should state the place where the accident occurred, and all facts necessary to consti- tute the ground of action. Quick v. Han- nibal Sr- St. J. R. Co., 31 Mo. 399.— Fol- lowed IN Dyer v. Pacific R. Co., 34 Mo. 127. In an action under the statute (Rev. Code 1855, p. 649, § j) the petition should state ex- plicitly on what ground the liability of the company is placed. It is not sufficient to charge negligence and wilfulness, and also to allege that the road was not fenced and that there were no cattle-guards at the crossings, without stating where the acci- dent occurred. Negligence and unskilful- ness are not essential to a recovery if the accident happened where there was no fence and where there was no crossing, or where the crossing was not protected by a cattle-guard. Miles v. Hannibal &* St. J. R. Co., 3 1 Mo. 407. A complaint in a suit against a company for killing slock need not negative the de- fense that the company was not bound to fence at the place where the killing or in- jury occurred, such matters being proper for the answer. Jeffersonville, M. &• I. R. Co. V. Brevoort, 30 Ind. 324. A complaint is defective for not alleging the place where the animal "'as killed, as such allegation is a jurisdictional fact ; but the defect cannot be taken advantage of ui.-^er a demurrer averring that the com- plaint did not state facts sufficient " to con- stitute a cause of action " The demurrer > See anu, 320 ; post, 475. must specifically challenge the jurisdiction of the court. Lake Erie &• IV. R. Co. v. Fiihback, 5 Ind. App. 403, 32 A'. E. Rep. 346. 350. Alleging failure to fence as proximate cause.*— It is not enough to charge that stock were killed at a point where the company had failed to fence, without showing that they came on the track by reason of such failure. A com- plaint against a railroad company for kill- ing stock, alleging that the stock were killed where defendant failed to construct lawful fences— ^^///, defective in not alleging that the stock got on the track because of the failure to fence. Dryden v. Smith, 79 Mo. 525.— FoLLOWiWG Luckie v. Chicago & A. R. Co., 67 Mo. 245 ; Bates v. St. Louis, I. M. & S. R. Co., 74 Mo. 60; Sloan v. Missouri Pac. R. Co., 74 Mo. 47.— DisiiNOUisHEU IN Morrow v. Missouri Pac. R. Co., 82 Mo. \tf).—Hudgens v. Hannibal &* St. J. R. Co., 79 Mo. 418.— Approving Luckie v. Chicago tSt A. R. Co., 67 Mo. 245 ; Cunningham v. Hanni- bal & St. J. R. Co., 70 Mo. 202 ; Sloan v. Missouri Pac. R. Co., 74 Mo. 48; Bates v. St. Louis, I. M. & S. R. Co., 74 Mo. 60; Schulte V. St. Louis, I. M. & S. R. Co., 76 Mo. 324. — Followed in Clark v. Hanni- bal & St. J. R. Co., 79 Mo. 419. «. To authorize a judgment against a rail- road company for double the value of an animal killed on its track, the petition must aver, either directly or inferentially, that the killing was occasioned by the failure of the company to erect and maintain fences, as required by § 809, Missouri Rev. St. 1879. Sloan V. Missouri Pac, R. Co., 74 Mo. 47.— Approved in Hudgens v. Hannibal & St. J. R. Co., 79 Mo. 418. Distinguished in Ed- wards V. Kansas City, St. J. & C. B. R. Co., 74 Mo. 117 ; Belcher I/. Missouri Pac. R. Co., 75 Mo. 514; Perriquez v. Missouri Pac. R. Co., 78 Mo. 91 ; Morrow 7>. Missouri Pac. R. Co.. 82 Mo. 169. Foi lowed in Dryden v. Smith. 79 Mo. 525. Reviewed in Jackson V. St. Louis, I. M. & S. R. Co., 80 Mo. 147. — Luckie v. Chicago &* A. R. Co., 67 Mo. 245. —Approved in Hudgens?'. Hannibal & St. J. R. Co., 79 Mo. 418. Distinguished in Williams v. Missouri Pac. R. Co., 74 Mo. 453 ; Lincoln v. St. Louis, I. M. & S. R. Co., 75 Mo. 27. Followed in Cunningham 7/. Hannibal & St. J. R. Co., 70 Mo. 202 ; Dry- den V. Smith, 79 Mo. 525. A complaint under Missouri Rev. St. § 809, • See ante, 34, 136. -I 'I I Hi '« 264 ANIMALS, INJURIES TO, ;I57. tli«t a cow was killed "at a point on said railway where said road was not inclosed by a fence, as required by law " — held, insuffi- cient, because not alleging that the cow got on the track and was killed because of the failure of the defendant to fence, and that no negligence being alleged, it showed no action at common law, and that it showed no action under the 5th section of the dam- age act, Rev. St. § 2124, as fences are not by that section required to be constructed. Johnson v. St. Louis, K. C. &* N. R. Co., 76 Mo. 553. See also Dyer \. Pacific R. Co., 34 Mo. 127. It Is not necessary, in an action under the Missouri statute to recover double damages, that the complaint charge directly that the injury was caused by a failure of the com- pany to maintain proper fences. It is suffi- cient to state facts from which such may be inferred . Bowen v. Hannibal &* Si. J. R. Co., 75 Mo. 426.— yuoTiNG Edwards v. Kansas City, St. J. & C. B. R. Co.. 74 Mo. 117.— Reviewed in Jackson v. St. Louis, I. M. & S. R. Co., 80 Mo. 147. In an action for injuring stock, it is not necessary that the petition allege that the failure to erect and maintain a sufficient fence along the side of the road "occa- sioned " the injury, as used in the statute, if words equivalent thereto are used; neither is it necessary to instruct the jury that they must believe the failure to fence "occa- sioned " the injury. Williams v. Missouri Pac. R. Co., 74 Mo. 453.— Distinguishing Luckie v. Chicago & A. R. Co., 67 Mo. 245 ; Cunningham v. Hannibal & St. J. R. Co., 70 Mo. 202. Following Moore v. Missouri Pac. R. Co., 73 Mo. 438.— Followed in Terry v. Missouri Pac. R. Co., 77 Mo. 254- The complaint alleged that the killing oc- curred where the railroad " was not fenced, and where there was no crossing on said railroad, * ♦ * that defendant had failed and neglected to maintain good and suffi- cient fences on the side of its road where said mare got on the track and was killed ; and that by reason of the killing of said mare, and by virtue of the 809th section of the Missouri Rev. St.," judgment for double damages was prayed. Held, that it suffi- ciently implied that it was defendant's duty to erect and maintain fences at that place, and that the mare got on the track in con- sequence of defendant's failure to do this, and that the complaint was goou after ver- dict. Jackson v. St. Louis, I. M. &* S. R. Co., 80 Mo. 147.— Applying Edwards 7'. Kansas City, St. J.&C. B. R.Co., 74 Mo. 117. Reviewing Sloan v. Missouri Pac. R. Co., 74 Mo. 47; Bowen v. Hannibal & St. J. R. Co., 75 Mo. 427 ; Belcher v. Missouri Pac. R.Co., 75 Mo. 515; Asher v. St. Louis, I. M. & S. R. Co., 79 Mo. 432 ; Bates v. St. Louis, I. M. & S. R.Co., 74 M0.60. -Distinguished IN Morrow v, Missouri Pac. R. Co., 82 Mo. 169; Summers v. Hannibal & St. J. R. Co., 29 Mo. App. 41 ; Wood v. Kansas City, Ft. S. & M. R. Co., 39 Mo. App. 63. Followed IN Cowan V. St. Louis, I. M. & S. R. Co., 80 Mo. 423 ; Carpenter v. St. Louis, I. M. & S. R. Co., 80 Mo. 446 ; Greer v. St. Louis, I. M. & S. R. Co., 80 Mo. 555 ; Watson v. Chicago, R. I. & P. R. Co., 80 Mo. 662 ; Busby v. St. Louis, K. C. & N. R. Co., 81 Mo. 43. Quoted and followed in Johnson v. Missouri Pac. R. Co., 23 Am. & Eng. R. Cas. 180, 80 Mo. 620. Under Missouri Rev. St. § 809, an aver- ment that plaintiff's cow went upon de- fendant's track, where it runs adjoining inclosed fields and through uniiicloscd prairie-lands, where the track was entirely uninclosed, and was killed, is sufficient, it being unnecessary to allege that the cow went upon the track because it was not fenced. Briggs v. Missouri Pac. R. Co., 82 Mo. 37. — Quoting Edwards v. Kansas City, St. J. & C. B. R. Co., 74 Mo. 122. Wherea compliiiiit, in an action for double damages for injury to stock, avers that " one of plaintitT's horses went upon the track of said railroad at the point on said road de- scribed above, where the road is not fenced soastoprevent stock from their track, ♦ ♦ * and that the west-bound train struck said horse," etc., the implication is irresistible that the failure to fence caused the injury, and the statement must be held sufficient. Thomas v. Hannibal Sf St. J. R. Co., 23 Am. &* Eng. R. Cas. 183, 82 Mo. 538.— Quoted in Vail V. Kansas City, C. & S. R. Co., 28 Mo. App. 372. 357. Need not allege particular defects in fence. — In an action for killing stock, under Missouri Rev. St. 1879, § 809, the complaint need not allege that the de- fects in the company's fence, which caused the injury complained of, were permitted to remain longer than was necessary, by the exercise of reasonable diligence, to repair them. Chubbuck v. Hannibal 6- St. J. R. Co., 77 Mo. 591. ANIMALS, INJURIES T(J, aaH-JOl. 865 (I iMH. Alletjriiiyr'tiiiic rond liaH lioeii ill operation.*— A charj^i; in a complaint, in an action to recover for injuries to stocl<, under the Illinois statute, to the elTcct that the road had been in use more than six months and was still un- fcnced, is a material averment, and must 1)0 proven to entitle plaintitT to recover. C/i/iai;o i3- ^1. A'. Co. v. Taylor, 40 ///. 280. See also Ohio &» M. A'. Co. v. />ro7i>ti. 23 ///. 94. Galena &» C. U. R. Co. v. Sumner, 24 III. by. Where a railroad is sued under tlie statute requiring companies to fence within six months after the road, or any pun of it, is o|)cn, an averment in the declaration that " more than six months after saiil railroad was in use, to wit, ♦ ♦ * saiti defendant ne^iectefi to erect " fences, is good on gen- eral demurrer. Great Western R. Co. v. Hanks, 7,6 III. 281. In an action to recover damages arising from tiie neglect of a railroad company to fence its road, where the injuries complained of extended over a period within which there had been changes in the statute im- posing the duty of fencing, as to the extent of liability for the neglect, but not such changes as atlccted the duty of maintaining fences, a declaration which made no specific reference to the statutes — field, good, in the absence of demurrer; there would be no ])racticiil difficulty in determining the ad- inissibility of proofs by the laws in force at the time to which they refer. Continental Imp. Co. v. Ives, 30 Mie/i. 448. :t51>. Need not ulleKC other iiegli- {;eiii>e than failure to fcnce.t— Com- plaints in actions for stock killed or injured by a railroad company, under stat- utes imposing liability for failure to perform cev.ain duties, such as securely fencing the track, need only allege a failure to perform such statutory duties, other allegation of negligence on part of the company being unnecessary. Terre Haute, A. &* St. L. R. Co. v. Augustus, 21 ///. 186. West v. Han- ■lilial 6- .SV, /. K. Co., 34 Afo. 177. liij^ehnu v. North Mo. R. Co., 48 Afo. 510. Indianapo- lis, P. &* C. R. Co. V. Williams. 15 Iiul. 486. Indianapolis, /'. &* C. R. Co. v. Sparr, 15 /"yer v. Pacific R. Co., 34 A/o. 127.— Following Quick v. Hannibal 4 St. J. R. Co., 31 Mo. 399; Brown v. Hanni- bal & St. J. R. Co., 33 Mo. 309. To entitle the owner of stock injured or killed on the track to recover of the com- pany one half the loss sustained, under sec- tion 2 of chapter 57, Gen. St. of Kentucky, the plaintiff need not allege or prove negli- gence. LouisTille &* A'. A'. Co. v. lielcher, 40 //;//. &» Hni;. R. Cas. 228, 89 Ky. 193, 12 5. W. Rep. 195. 8» St. J. R. Co., 34 Mo. 235. PlaintifT stated specially a cause of action to have accrued before the passing of the Stat. 20 Vic. ch. 12, for the better prevention of railway accidents, and alleged a duty in defendant to erect and maintain sufficient fences on the line of its railway, and cliarged a breach of that duty, by means whereof certain fillies or colts of plaintitT, one of which was lawfully in a certain close near the railway, and the other was lawfully on the highway near the railway, by and through defendant's breach of duty, got upon the railway, and by means thereof and by and through the negligence of defend- ant in running ;ind propelling its loco- motive engines, and while said fillies or colts were fo upon the railway, a locomotive of defendant ran against them, etc. Held, that all the allegations respecting the duty ui defendant to fence and its breach of that duty, by which pluintill's fillies got on the railway, being struck out, the declara- tion, in alleging negligence on defendant's part in running and propelling its loco- motives, still disclosed a good cause of ac- tion. Chisholm v. Great Western R. Co., 10 U. C. C. P. 324.— Approving Gillis v. Great Western R. Co., 12 U. C. g. B. 427. 302. I'letuliiitf onliiiuiiucH. — The cause of action not being founded on the ordinance, it is not necessary to plead it, but if the defendant was running its train in vio- lation of It, such fact is competent to sup- port the charge of negligence. Robertson v. Wabash, St. I.. &* P. R. Co., 84 Mo. 119.— Applied in Windsor v. Hannibal & St. J. R. Co., 4S Mo. App. 123; Fiisili v. Missouri I^ac. R. Co., 45 Mo. App. 535. Followkd IN Judd V. Wabash, St. L. & P. R. Co., 23 Mo. App. 56. Reviewed in Welch 1'. Hannibal & St. J. R. Co., 26 Mo. App. 358. In an action for the killing of slock within the corporate limits of the city of Macon, and alleging the violation of an ordinance of that city regulating the run- ning of trains, it was neither averred in the petition that the city of Macon was incor- porated under a public law, nor was the title of the act of incorporation referred to, as by the statute provided, nor was the charter of said city offered or read in evi- dence, //eld, there was no evidence of the power of the city to enact the ordinance in question. O'Brien v. Wabash, St. L. » P. R. Co., 21 Mo. App. 12.— yuoTiNO Apitz v. Missouri Pac. R. Co., 17 Mo. App. 426. Re- viewing Wisdom V. Wabash, St. L. & P. R. Co., 19 Mo. App. 324. 303. NvceHMury alloKutioiiH to re- cover attoriiey'M fee"— To recover an attorney's fee, under the Kansas railroad stock law, it is not essential that the plain- tilT should state in his pleading that the employment of an attorney in the case was necessary. A full statement of the facts concerning the injury, and a prayer for an attorney's fee, will sustain such a re- covery. Kansas City, Ft. S. &* G. R. Co. v. Durge, 40 Am. (;ntiving plaintiffs t'oii- tribiitory iiegligence.t— A complaint against a railroad company for the negligent killing of live stock, which does not allege • See - lis C. & L. R. Co. V. Robinson, 35 Ind. 380. Toledo, W. Sf W. R. Co. v. Harris, 49 Ind. 1 19. Jeffersonville,At. &•/. R. Co. v. Under - hill, \nlnd. 229. A complaint for killing cattle upon a highway crossing by reason of the company's negligent failure to sound a whistle and ring a bell, as the statute requires, without any negligence of plaintifi, states a good cause of action. Cincinnati, IV. «S- Af. R. Co. V. Htltshauer, 99 Ind. 486.— DisilN- GUISHED IN Welly V. Indianapolis & V. R. Co., 24 Am. & Eng. R. Cas. 371, 105 Ind. 55. But where the killing of stock by a rail- road company is alleged to have been ivil- fully done, it is not necessary 10 aver atlirma- tively that the plaintifT's carelessness did not contribute to it. Indianapolis, P. &-• O R. Co. V. Pe/iy, 30 Ind. 261.— Quoied in Evansville & T. H. R. Co. v. Willis. 80 Ind. 225. .'{Off. "What allctratloDH may be Htricken out as surpluHaKe. — Where a declaration or petition in an action for killing stock states a good cause of action for negligence at common law, all other allegations respecting fencing and such statutory duties arc surplusage, and may be stricken out. Rockford, R. I. 6- St. L. R. Co. V. Phillips, 66 ///. 548. Garner v. Nan- nibal 6- Si. J. R. Co., 34 Ato, 235. Chisholm V. Great Western R. Co,, 10 U. C. C. P. 324. Jeffersowville, At. &* I. R. Co. v. Lyon, 55 Ind. 477. JIGO. Ainciidnieiits. — (i) Allmvable. —A complaint founded on the statute, averring neither negligence nor intentional injury resulting from direct force, is neither in case nor in trespass, and shows no cause of .lotion ; and an amended complaint, aver- ring that the injury was caused by the negli- gence of the company's servants, is allow- able. Simpson v. Aleinphis &• C. R. Co., 66 Ala. 85. In a complaint for the killing of a horse, (he sulKstituiion by amendment of the word iiune for the word horse does not make a new case. .So///// »^ A'. Ala. R. Co. v. Bits, 82 Ala. 340, 2 .SV*. Rep, 752. In an aciion for double damages for kill- ing (attic, a complaint which fails to show that the injury occurred at a point un the road where there should have been fences, but were none, or that ii was occasioned by the failure to fence, is defective, but under the present statute (Mo. Rev. St. 1879, ii 3060) may be amended after appeal to the circuit court. Drydcn v. Smith, j^Alo. 525. — Fol- lowing King V. Chicago, R. 1. & V, R. Co., 79 Mo. 328. Where a complaint is filed against a com- pany for killing stock, charging that the stock strayed upon the track without the fault of the owner and was injured through the negligence of the company in the operation of a train, it is proper to allow an amendment to the cfTect that the animal strayed upon the track through the negli- gence of the company in failing to build and maintain a proper fence, as required by statute. Bilker v. Ne^v York, L, E. &^. IV. R, Co., 31 A'. V. S. R. 750, 57 ////;/ 585, 10 A'. Y. Supp. 413. — Ai'i'ROViNc; Smith 7>. Eastern R. Co., 35 N. H. 356. Rkvikwinc; Corwin v. New York & E. R. Co., 13 N. Y. 42 ; Hungerford v. Syracuse, B. & N. Y. R. Co., 46 Hun 339. 12 N. Y. S. R. 204. (2) Not alUnvahle, — A plaiiKiff cannot be allowed, after issue joined, to amend his original petition so as to alter the substance of his demand. In an action against a railroad company for killing cattle plaintiff cannot amend his petition for the purpose of alleging that the company had no right of way over his lands, as the responsibility of a company running trains under legal rights is different from that of a trespasser. Day v. New Orleans Pac. R. Co., 35 La. Ann. 694. :i(l7. Defective alletftitiou cured by subNeqiient allocation.— A declara- tion in an action against a railroad con- tained but one count, and that was for kill- ing and crippling a mare and a mule, but it was not averred which animal was killed and which crippled. This defect was cured by a subsequent averment that by the act of defendant in running its train upon them they were lost to the owner, Toledo, W, 6^ W. R. Co. V. Cole. 50 ///. 184. 308. Defective allegations cured by subsequent proceedings.— The dec- I I I !! ••I ••• *>■ « « M «•'■■■';, i'^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I tt&fjU |25 Hi Uii 12.2 ■£ |«£ 12.0 u M IL25 mi 1.4 Wi^l 1.6 6" Photogra^Aiic Sciences Corporalioii 23 WIST MAIN STRir WnSTIR,N.Y. 14SM (716)«72-4S03 :V / '.ir,8 ANIMALS, INJURIES TO, .1«8. i*»C laration averrerf that the company had failed to fence the road at the place where the animal was killed, or where it got upon the track, and that it was not killed, nor did it get upon the track, at any of the ex- cepted places. Upon the objectio.i that it was not directly averred that tlie injury wiis the result of the company's failure to fence — /leM, that the facts averred would raise a prima facie presumpt'on that the injury resulted from that caii'^e. and, at least after verdict, on motion ii s'-eit, the declaration would be sulTicient. 'joledo, P. &• IV. Ji. Co. V. Darst, 52 /.'/. 89. In an action under ~ 'e tatute, com- menced 'n the circuit co .^.<; complaint alleged that, "at a pl^.i .r the track of said railroad where the san"e was not se- curely fenced," the defendant, " by its ser- vants, locomotives, and cars, ran upon, against, and over " the stock and killed it. Held, on motion in arrest, that as the de- fect in the allegation as to fencing could be and was supplied by the evidence and cured by the verdict, the complaint was sufficient. Louisville, N. A. &' C H. Co. v. Spain, 61 . liid. 460. In a suit to recover for animals killed, the complaint averred " that the railroad afore- said was not securely fenced in, and the fence properly maintained." Held, that this language may mean that the railroad was not securely fenced anywhere, and therefore imply that it was not so fenced where the animals entered upon the road ; and, after verdict for the plaintiff, it Is fair to assume, no objection appearing to have been made to the evidence, and the evidence not being in the record, that proof of the fact thus implied was made without objec- tion. Indianapolis, P. &' C. A\ Co. \. Petty, ya Ind. 261. In an action under Iowa Code, § 1289, for double damages for stock killed on a rail- road track on account of a failure to fence, the petition did not in terms aver that the animals were running at large. Held, that, as defendant had notice that the action was brought under the statute, and admitted all the averments of the petition except the valve of the animals, and went to trial with- out moving for a more specific statement, the petition ought to be held sufHcient after verdict. Shuck v. Chicago, R. I. &• P. R. Co., 73 Iowa 333, 35 A^. W. Rep. 429. In an action for double damages for stock killed, the petition alleged " that defendant had been duly notified of the killing of said cow, and payment thereof duly de- manded," which defendant had refused. Held, sufficient to warrant a judgment for double damages, where no objection was made until after judgment. Clary v. Iowa Midland R. Co., 37 Iowa 344. In an action for double damages for kill- ing a sow, an averment that she strayed upon the track at a point where it was not fenced " as the law directs" is, after ver- dict, to be regarded as equivalent to an averment that the road at the given point ran through the character of land required by the statute to be fenced, and that the sow was killed in consequesice of the want of such fence. Nicholson v. Hannibal &* St, J, R. Co., 82 Mo. 73.— Distinguishing Hudgens v. Hannibal & St. J. R.Co.,79 Mo. 418. In an action, under Missouri Rev. St. 1879, § 809, for double damages for killing plaintiff's hog, the petition alleged that the hog was killed at a point on defendant's railroad track where the same was not in- closed by a lawful fence sufficient to prevent the hog from getting on the track, and that plaintiff's damage was caused by the failure of defendant to erect and maintain lawful fences sufficient to prevent the hog from straying on the track. Held, that this suffi- ciently showed that the animal came upon the track by reason of the company's fail- ure to fence, and the petition was good after verdict. Morris v. Hannibal &* St. J. R. Co., 19 Am. &* Eng. R. Cas. 666, 79 Mo. 367. —Following Edwards v. Kansas City, St. J. &C. B. R. Co.. 74 Mo. 117. Where plaintiff's petition alleged that the cattle injured entered upon the track where it ran through his inclosed field, and also stated facts showing that the action was brought under § 43, Missouri Corporation Act, which could not have been done had the killing occurred within a town or city, it was held to contain averments sufficient, after verdict, to show that the stock entered upon the track at a point not within the limits of an incorporated town or city. Far r ell V. Union Trust Co., 13 Am. &* Eng. R. Cas. 552, 77 Mo, 475. The following allegations have been held to be sufficient after verdict: A complaint alleging that the railroad was not fenced at the point where the ani- mals entered, but where, instead of such averment, it is alleged that the road was m ANIMALS, INJURIES TO, 3«9-371. 269 not fenced at the point where the animals were killed. Louisville, N. A. &> C. R. Co. V. Goodbar, 102 Ind. 596, 2 N. E, Rep. 337, 3 N. E. Rep. 162. A complaint under the statute, otherwise sufficient, but containing no formal aver- ment that the plaintiff was damaged by the killing of his cattle. Louisville, N. A. &* C. R. Co. V. PecJt, 99 /tid. 68. An allegation that a company, " by its lo- comotive and cars, etc., on its railroad," ran over and killed animals, etc., is a good alle- gation as to the ownership of the road. Pittsburgh,C.Qr' St. L. R. Co. v. Hun/, 71 Ind. 229. An allegation that the company ran against and over the animal and killed it, but not alleging that the injury was done by the locomotive or cars. Louisville, N. A. <&>• C. /?. Co. V. Harrington, 19 Am. &> Eng. R. Cas. 606, 92 Ind. 457.— Distin- guishing Pittsburgh, C. & St. L. R. Co. v. Troxell, 57 Ind. 246; Pittsburgh. C. & St. L. R. Co. V. Hannon, 60 Ind. 417; Ricketts V. Sandifer, 69 Ind. 318. In an action under Missouri Rev. St. § 809, for damages for cattle killed by a rail- road train, an allegation that "the cow did, without fault of plaintiff, stray upon the track of said railroad at a point where it runs through and along cultivated fields, and where said road was not sufficiently or lawfully fenced or guarded by cattle-guards, and where there was no public crossing on said road." Edwards v. Kansas City, St. J. &* C. B. R. Co., 74 Mo. 117.— Distin- guishing Cunningham v. Hannibal & St. J. R. Co., 70 Mo. 202 ; Sloan 7>. Missouri Pac. R. Co., 74 Mo. 47.— Applied in Jackson v. St. Louis, I. M. & S. R. Co., 80 Mo. 147. Followed in Morrisz/. Hannibal & St. J. R. Co., 19 Am. & Eng. R. Cas. 666, 79 Mo. 367; Belcher v. Missouri Pac. R. Co., 75 Mo. 514; Campbell v. Missouri Pac. R. Co., 78 Mo. 639; Blakely v. Hannibal & St. J. R. Co., 79 Mo. 388; Marrett v. Han- nibal & St. J. R. Co., 84 Mo. 413 ; Stanley v. Missouri Pac. R. Co., 84 Mo. 625. Quoted in Bowen v. Hannibal & St. J. R. Co., 75 Mo. 426; Perriquez v. Missouri Pac. R. Co., 78 Mo. 91 ; Bt'sby v. St. Louis, K. C. & N. R. Co., 81 Mo. 43 ; Briggs v, Missouri Pac. R. Co., 82 Mo. 37. A declaration alleging negligence in the management of the train, although it may iiave appeared in evidence that the neg- ligence of the defendant existed in relation to fences, and not in the management of tlie train. Smith v. Eastern R. Ct;. , 35 A^. H. 356. A declaration merely allegiiig that the de- fendant neglected to keep a suitable fence along its track, and that " for want of such fence the plaintiff's horse escaped from his pasture and went at large, and by means of going at large the horse was greatly in- jured." Holden \. Rutland Qr'B. R. Co., 30 1 7. 297. 360. Defective nIle{[rAtioii8 not cured even after verdict. — A com- plaint against a company for stock killed by the machinery of the company will be bad, even after verdict, if it fails to aver negli- gence or that the road was not fenced. In- dianapolis, P. &^ C. R. Co. v. Brucey, 21 ind. 215. Action for four head of cattle. First and second counts allege that animals were killed by negligence or improper conduct of defendant's agents. Third and fourth counts contain no such allegation. As to killing of three of the animals, there is no evidence of negligence. But as to the fourth, there is ample. On demurrer to plaintiff's evi- dence — held: (\) Third and fourth counts are fatally defective, and not cured by verdict under statute of jeofails ; (2) That statute is intended to cure defective statements of cause of action, but not a statement which makes no case; (3) Thcie being no evidence of defendant's negligence in killing the jack, the bull, and the cow, there can be no recov- ery therefor ; but as to the horse, it is other- wise. Orange, A. &* M. R. Co. v. Miles, 76 Va. 773. b. Other Matters of Pleading. 370. Sufficiency of general denlaL — In a statutory action to recover for cattle killed, the defendant need not allege that the point where the stock entered upon its trac!' was one which could not properly be fenc \, but may show it by proof, under the gCwral denial. Jeffersonville, M.&--I. R. Co. v. Lyon, 55 Ind. 477. 371. Necessity of specific denial.* — Where a company is sued under Missouri Gen. St. 1865, ch. 63, for killing stock, and files an answer containing no specific denial of the allegations of the complaint, but sets up gross negligence on the part of the plain- tiff in turning his animal out on uninclosed lands, whereby it went upon the track and *■ Sec fost, 380. 270 ANIMALS, INJURIES TO, ;J73, 373. was killed, and by reason of which the com- pany's cars were thrown off the track and injured to the amount of $5000, such answer is properly stricken out as constituting neither a denial of the cause of action, nor a counterclaim in the nature of a set-ofT. Tarwater v. Hannibal Gf St. J. R. Co., 42 Mo. 193.— Followed in Vickers v. Hanni- bal & St. J. R. Co., 42 Mo. 198. To an action to recover the value of a mare killed on the defendants' line, the de- fendants pleaded specially that the fences on each side of their railway were good and sufficient; that there was no negligence; and that they had n3ver been put en demeu. with regard to their fences being out of o\ der. This was followed by a defense en fait. In the course of the enquete there was evi- dence which indicated that the locality where the accident occurred was not on the defendants' railway line, but on that of the Grand Trunk Company, which controlled the defendants' line. On defendants' offer- ing evidence on this point, the court below maintained the objection to the testimony on the ground that there was no contesta- tion raised as to the road on which the ac- cident occurred. Held, that the defendants having pleaded specially, without raising any question as to their ownership of the road, the plaintiff was not obliged to prove the truth of an allegation which had not been specially denied, and which must be taken as admitted. La Compagnie Du Chemin De Fer De Junction De Montreal et Champlain v. Severe Ste.-Marie, 4 Montr. L. R. {Q. B.) 283. 372. Pleading new matter, gen- erally. — A complaint charged in one para- graph the killing and injury of plaintiff's cattle by the servants and agents of the de- fendant company, and charged in another paragraph the failure of the company to fence its track at a point where it ought to have been fenced, resulting in the killing and injury. Held, that a paragraph of an- swer which assumed to answer the entire complaint, but which contained nothing which could amount to a defense of the charge of wilful injury, was bad ; and that it was also bad in assuming that the railroad company was not bound to fence its track through uninclosed land. Louisville, E. &* St. L. R. Co. V. Hart, 2 Ind. App. 130. 28 A'. E. Rep. 218. In an action for the killing of plaintiff's cow, which had entered upon the defendant's track where the track ought to have been securely fenced but was not, an answer set- ting up matters of evidence from which it might be inferred that it could not have been fenced without interfering with the rights of the public, or the free use of tlie track by the company, or jeopardizing the safety of its servants, but without alleging any issuable facts to that effect, is demur- rable. Pennsylvania R. Co. v. Zivick, \ Ind. App. 280, 27 A^. E. Rep. 508. The excuse that a reasonable time has not elapsed in which to repair known defects in a fence must be alleged in the answer. Jef- fersonville, M. &* /. R. Co. v. Sullivan, 38 /nd. 262. 373. Alleging plaiiitiftN contribu- tory negligence.*— To a complaint un- der the statute for killing the plaintiff's mare, the road not being fenced, etc., it was answered: i. That the plaintiff was the defendant's servant ; that as such it was his duty to keep the railroad track, near a cer- tain station, free from trespassing animals; that, in violation of such duty, he turned his mare out at such a place, near which the track was not fenced, whereby, etc. 2. That a certain station was a public place, with side-tracks and switches where large shipments of goods were made and re- ceived, and that plaintiff turned his mare loose in that immediate vicinity, and she went upon the track at a place where it was not securely fenced, etc. Held, that both paragraphs were bad on demurrer ; the first for not averring that, at the place where the animal entered upon the track and was killed, the employe was required by con- tract to keep off trespassing animals ; and the second, for failure to show that the ani- mal was killed at the station, where no fence was required. Louisville, New A. &* C. R. Co. v. Skelton, 19 Am. &* Etig. R. Cas. 542, 94 Ind. 222. An answer that the plaintiff had negli- gently, or in violation of a city ordinance, allowed the stock killed to run at large within the limits of an incorporated city, and in the vicinity of the defendant's rail- road, amounts only to an answer of con- tributory negligence, and is sufficient on demurrer. Louisville, N. A. &• C. R. Co. v. Cahill, 63 Ind. 340.— DISTINGUISHING Knight v. Toledo, & W. R, Co., 24 Ind. 402. Where an action is brought against a SeeuM/^ 371. ANIMALS, INJURIES TO, 374-379. 271 railroad to recover for a bull killed upon the track at a place where it was unfenced, an answer to the eflect that plaintiff knowingly allowed the bull to range at large and upon the track, in violation of the laws of Oregon, § 3393, when struck and killed, which was the result of the wrongful and unlawful act of plaintiff in allowing it to so range at large, states a good defense on demurrer, whether tlie bull was at large in violation of said section or not, as it showed con- tributory negligence. Hindman v. Oregon R. &• N. Co., 38 Am. and Eng. R. Cas. 310, 17 Oreg. 614. 22 Pac. Rep. 116.* 374. Alleging plaiutiff'8 gross contributory negligence. — Where the answer charges that the injury was the re- sult of the " gross negligence of the plain- tiff," it should aver in what particular act or omission his negligence consisted, /e/- fersonville, M. w/, 390. said upon defendants' lands, adjoining, and thence at said time when, etc., onto said railway, and then being so upon said rail- way, were accidentally injured witLout any design or default of defendants. Held, bad on demurrer. McDowell v. Great Western R. Co., 5 U. C. C. P. 130.— Ap- proving Fawcett v. York & N. M. R. Co., 16 Q. B. 610; Parneil v. Great Western R. Co., 4 U. C. C. P. 517. In an action for running over and kill- ing plaintiff's mare, the first count alleged that the mare was in the close of one W. by his leave, and that defendants neglected to fence along their line, whereby the mare strayed upon the railway. Defendants pleaded (among other pleas) that W. was not possessed of the close, and that the mare was not there by his leave. Held, that issues taken upon these pleas were material, and necessary to be proven. Con- nors V. Great Western R. Co. 13 U. C. Q. B. 401. 377. What may be pleaded in abatement.— Tl ^lilure of the owner of live stock killed . have their value ap- praised before bringing suit, as provided by Colorado Gen. Laws 1877, P- 850, may be taken advantage of by a plea in abate- ment, but if not so taken advantage of it will be regarded as waived. Atchison, T. 6- S. F. R. Co. V. Lujan, 6 Colo. 338.— Reconciled in Denver & R. G. R. Co. v. Henderson, 31 Am. & Eng. R. Cas. 559, 10 Colo. I. See also 10 Colo. 4. 378. Demurrer— Necessity of sep- arate demurrers.— Where suit is under the Iowa act giving double damages for stock killed, an objection that the petition does not set out the notice provided by statute to be served on the company must be raised by demurrer, and when not so raised will be regarded as waived. McKin- ley v. Chicago, R. I. 6- P. R. Co., 47 Iowa 76. When a complaint for negligently killing a horse contains two paragraphs or counts, one under the statute charging a failure to fence, and the other at common law, and the first is bad and the second good, a single demurrer to both paragraphs is rightly over- ruled, but a separate demurrer to the first paragraph should be sustained. Indian- apolis, P. &> C. R. Co. V. Taffe, 1 1 Ind. 458. 379. Replication, sufficiency of.— A company set up the defense to an action against it for killing stock that the plaintiff had contracted to fence the road, and that 272 ANIMALS, INJURIES TO, asO, ;J81. I ;^ by reason of his failure to do so the stock went upon tlic road and were killed. Plain- tiff filed a replication denying that he was bound by any contract to build such fence, and denied that his stock "came on said road by reason of plaintill not building ;i fence that he was bound to build by reason of any contract that he had made." Held, that the replication was sufficient, under the Missouri practice, to require the com- pany to produce the contract at the trial. Ells V. I'acific R. Co., 55 Mo. 278, Action against railroad corporation for injuries to stock; plea, that defendant had ceased to own or control the road, and was not interested in the control or ownership of it at the time of the alleged injury ; rep- lication, liiat the parties owning and con- trolling the road " run said property as a corporation, under the name of" the de- fendant corporation. NM, that the repli- cation was demurrable because it was a departure and sought to introduce new parties. Western R, Co. v. Davis, 66 Ala. 578. 380. Wliat may be set up by way of counterclaim.— In an action for kill- ing stock at a public crossing, when the negligence is alleged to have been a failure to blow the whistle and to ring the bell, the defendant cannot set up by counterclaim that the plaintifl negligently permitted his stock to stray upon such crossing and that the collision damaged his locomotive. Lake Shore (S- AT. S. R. Co. v. Van Aitken, i Ind. App.^<)2,27 N. E. Rep. 119.— Following Terre Haute & I. R. Co. v. Pierce, 95 Ind. 496. In an action to recover for the value of a horse killed by the defendant's cars, wherein one paragraph of the complaint was based upon the defendant's failure to fence its track, and another alleged a negligent kill- ing, the defendant could not set up, by way of counterclaim, that the plaintiff had neg- ligently suffered his horse to stray upon the track, where the cars ran upon it, and were thrown from the track, causing the defend- ant great damage, for which judgment was demanded. Terre Haute &• I. R. Co. v. Pierce, 19 Am. &* Eng. R. Cas. 581, 95 Ind. 496.— Distinguishing Judah v. Vincennes University, 16 Ind. 56; Grimes 7/. Duzan, 32 Ind. 361. — Followed in Lake Shore & M. S. R. Co. V. Van Auken, i Ind. App. 492. Where a company set up as a defense, to an action for killing stock, a counterclaim that plaintiff knowingly and intentionally permitted his stock to run at large and on defendant's premises, in violation of the herd law of the state, whereby defendant's train was wrecked and great damage done it, it is not necessiiry to further aver that the defendaiii. itself was free from fault and negligence. Defendant's fault or negligence is matter to be shown by plaintiff. Central Branch U. P. R. Co. v. Walters, 24 Kan. 504. In an action against appellant to recover the value of mules killed by one of its trains, the appellant pleaded as a counterclaim the damages sustained by reason of plain- tiff's negligence in allowing his stock to stray on the track, the plaintifi's alleged negligence consistinf n his not having a good and lawful fei., j, such as would keep the mules within his own inclosure. The damages claimed resulted from the wreck- ing of the train by reason of the collision with the stock. 'I'he company's road was not inclosed. Held, that a demurrer to the counterclaim was properly sustained. But even if it presented a good defense, it could not have availed in this case, for the reason that the jury, by a verdict for the plaintiff, have found that the damages sustained by the defendant were the result of its own negligence. Louisville &> A^. R. Co. v. Sim- mons, 85 A>. 151, 3 i'. W. Rep. 10. Horses on a railroad track were killed by a passing train, which was thereby thrown from the track and its engine injured. Held, that the injury to the engine was no proper counterclaim in an action for dam- ages brought by the owner of the horses against the company. Simkins v. Columbia S,'. L. R. Co. v, Stuart, 71 Ind. 500. — Quoted in Chicago, St. L. & P. R. Co. V. Nash, . Ind. App. 298. Animals killed or injured at different times constitute separate and distinct causes See/w/, 301-523. •*i '1 2J ill m 1: 274 ANIMALS, INJURIES TO, 383. is 'm of action, each of which should be stated in a sjparate paragraph of the complaint ; and where the complaint indicates but one cause of action, the plaintiflF should be confined in his evidence to a single transaction. Jeffer- sonville, M. &* I. R. Co. v. Brevoort, ytlnd. 324- Where it is charged that the negligence of an engineer caused the killing of cattle, it is not competent to prove habitual negli- gence of other employes of the company. Mississippi C. R. Co. v. Miller, 40 Miss. 45. —Followed in Southern R. Co. v. Ken- drick, 40 Miss. 374; New Orleans, J. & G. N. R. Co. V. Enochs, 42 Miss. 603 ; Mem- phis & C. R. Co. V. Orr, 43 Miss. 279. Where a complaint charges that stock were killed through the careless or negli- gent running of a train, it is not competent at the trial to prove negligence in permit- ting grass or water at or near its track, whereby the stock were attracted. Milburn V. Hannibal &» St. J. R. Co., 21 Mo. App. 426. It is not competent to prove that horses were killed by going on the track through an open gate in a fence along the railroad track, where there is no allegation in the complaint charging any negligence on the part of the company in allowing the gate to be open which would operate as the proxi- mate cause of the injury. Jahant v. Central Pac. R. Co., 74 Cal. 9, 15 Pac. Rep. 362. In an action to recover for the killing of animals, based on a neglect of the company to keep a gate in a fence built by it in re- pair, through which stock escaped and got upon the track, where they were killed, the defendant offered to prove that the erection of cattle-guards or a fence along its side- tracks would greatly endanger the lives of its employes, and inconvenience the public at large in loading and unloading cars from the side-tracks, and the cattle-guards would weaken the roadbed and thereby endanger the lives of passengers. Held, that the evi- dence was properly excluded, as the neglect to make cattle-guards was not complained of as a ground of recovery. Chicago &* E. I. R. Co. V. Guertin, 24 Am. &* Eng. R. Cas. 385, 115 ///. 466, 4 N. E. Rep. S07. In an action to recover, under the statute, the value of stock alleged to have been killed by the defendant's cars on its railroad, where the same was not but ought to have been securely fenced, it is error to admit evidence that such killing had been done by the defendant's cars on the railroad of another company. Cincinnati, H. &> D. R. Co. V. Bunnell, 61 Ind. 183. It is also error in such a case to permit the plaintiflf, over the objection of the de- fendant, to so amend his complaint as to conform to such erroneous evidence, where such action is commenced in the circuit court. Cincinnati, H. Q. R. Co., 74 Iowa 248. 37 N. IV. P.ep. 182.— Reviewed in Brockert v. Central Iowa R. Co., 82 Iowa 369. Where petition does not allege negligence to that effect particularly, there can be no recover under evidence to the effect that plaintiff was compelled to open the fence along defendant's railroad at a point where the wires composing it ended, because of a ditch which prevented the driving of his cattle to the desired place by any other route. Davidson v. Central Iowa R. Co., 35 Am. &^ Eng. R. Cas. 158, 75 Iowa 22, 39 N. W. Rep. 163. When there is an averment made in a pleading that a railroad crossing had been "negligently and defectively constructed," and there is no evidence in the cause sus- taining it, there cannot be recovery upon other and different grounds not alleged. It is a familiar rule in this state that if one alleges the negligence to be the doing or omitting to do certain acts, he must stand by the statement with his proofs. Ellis v. Wabash, St. L. &• P. R. Co., 17 Mo. App. 126. — Following Price t/. St. Louis, K. C. & N. R. Co., 72 Mo. 414 ; Waldhier v. Han- nibal & St. J. R. Co., 71 Mo. 514. Quot- ing Judson v. New York & N. H. R. Co., 29 Conn. 434. Where the petition (under Wagn. Mo. St. 310, § 43) alleges that the killing of stock was caused by the company's failure to fence its road at a point where it was re- quired to fence, and where the accident oc- curred, there can be no recovery on mere proof of negligence other than a failure to fence. Cary v. St. Louis, A". C. &• N. R. Co., 60 Mo. 209. — Distinguished in Lin- coln V. St. Louis, I. M. & S. R. Co., 75 Mo. 27. Followed in Edwards v. Hannibal & 3t. J. R. Co., 66 Mo. 567. A complaint alleged that the defendant negligently and wrongfully permitted to be and remain open a certain gate in a railroad fence, whereby a certain cow of plaintiff's entered upon defendant's railroad and was killed. The proof showed that the gate, some sixty yards from the right of way, had been put in for its own use by a coal com- pany, whose land abutted upon the right of way, and that there was no fence between the coal land and the right of way. Held, that plaintiff can predicate no rigiit to re- covery against defendant upon its failure to keep the gate of the coal company closed. Davis V. Wabash R. Co., 46 Mo. App. 477- Where it appeared that cows were past- ured in a lot adj(jining a railroad, between which and the railroad there was no fence, and there was no allegation in the pleadings to authorize evidence that they escaped upon the road through a defect of fences which the defendants were bound to repair, and no averment that the defendants were bound to fence at that point, or showing from what place, in what manner, or how the cattle came upon the road— held, that no action could be maintained against the railroad company for running over and kill- ing the cows by means of their engine and cars. Clari v. Syracuse 6>» (/. R. Co., il Barb. {N. K) 112.— Reviewed in Terry 7/. New York C. R. Co., 22 Barb. (N. Y.) 574- The declaration avers that the injury to the cattle was caused " solely by the negli- gence and carelessness of the defendant in this, that the defendant, seeing the plaintiff's cattle on the track, carelessly and wrongfully drove its locomotive on them." The plaintiff cannot under such a declara- tion recover if the evidence shows that the defendant's servants were guilty of no wrong or carelessness after the cattle were seen on the railroad, though they may have been guilty of such carelessness before they were seen. Hawker v. Baltimore &• 0. R. Co., 15 W. Va. 628.— Distinguished in Spicer V. Chesapeake & O. R. Co., 34 W. Va. 514. 384. Variance, what is not mate- rial.— Under a general allegation of negli- gence on the part of a company, in an action against it for single damages for the killing of stock, the plaintiff may suc- ceed either by proving negligence at com- mon law, or by proving the constructive statutory negligence in failing to erect and maintain fences at a requisite place. Hill v. Missouri Pac. R. Co., 49 Mo. App. 520.— Explaining Boone v. Wabash, St. L. & P. R, Co., 20 Mo. App. 232. 276 ANIMALS, INJURIES TO, 385,380. I ill III Id .4 ^ii I It is no variance for the statement of a statutory cause uf action for double damages for the killing of stock, to allege a failure of the railway company to maintain a fence on the sides of its road, and for evidence to show a failure of the company to maintain a cross-fence connecting the main fence with a cattle-guard. Foster v. St. Louis, I. M. &» S. A\ Co., 44 Afo. App. 1 1. There is no variance between an allega- tion that a calf was killed at a certain sta- tion, and proof that it was killed nine hun- dred feel distant from the station. Brown V. Missouri Pac. R. Co., 14 Mo. App. 580. In an action to recover damages for the alleged killing of animals, the complaint charged negligent and careless conduct on the part of the railroad employes, and the answer admitted the killing, but denied negligence and charged contributory negli- gence. The complaint contained no refer- ence to the railroad fences. On the trial evidence was introduced in reference to the fences along tlie track, without objec- tion by either party. There was no law requiring the defendant to fence its right of way, and the plaintiff did not contend that it was the duty of the defendant to keep its right of way inclosed so as to prevent stock from going on the track ; but the defendant had alleged in its answer that " such killing and destroying was the result of plaintiff's own carelessness contributing thereto, for which this defendant was in no wise respon- sible," this allegation being denied in the plaintiff's reply. Neither party made any explanation of the bearings of this evidence on the pleadings. The defendant relied to some extent upon the fact of having con- structed the fence inclosing its right of way as evidence of due care in the attempt to keep stock from going on its track. As against this evidence, the plaintiff intro- duced testimony to show the condition of certain gateways in the said fence, through which the animals had strayed upon the track. Held, that it could not reasonably be contended that there was no foundation laid in the pleadings for the introduction of such evidence, since it might hcve be... justified under the allegation and denial of contributory negligence. McMaster v. Mon- tana Union R. Co., 56 Am. &* Eng. R. Cas. 195, 12 Mont. 163, 10 Pac. Rep. 268. It is not a fatal variance in an action to recover for the value of a jennet, killed by cars of defendant, to allege that the jennet was killed on April 26, 1886, when testimony on trial proved the killing to be on April 26, 1889. St. Louis, A. &• T. R. Co. v. Evans, 78 Tex. 369, 14 S. IV. Rep. 798. 5. Matters of Defense.* 385. What may coiiHtitiite a valid defense.— Under the statute (§ 806 Mis- souri Rev. St. 1879, as amended in 1881) the company may show by way of defense that the failure to ring a bell or sound a whistle was not the cause of the injury. Smith V. Wabash, St. L. &* P. R. Co., 19 Mo. App. 120. Where a company is sued for killing stock which has gone upon the track through a defect in the fence, the fact that the company has not had time in which to repair the fence is a matter of defense. Busby V. St. Louis, K. C. &^ N. R. Co., iZ Am. &* Eng. R. Cas. 589, 81 Mo. 43. After plaintiff has made out & prima facie case in an action for killing stock, by prov- ing the killing, the question as to how far a regulation of the company as to rate of speed will constitute a defense depends upon whether the regulation was reasonable or not, and whether it was carried out by prudent and reasonable persons. Molair v. Port Royal » P. R. Co., 82 Iowa 199, 47 N. IV. Rep. 1004. 386. What 2-15», 103, Km, 107, 181, 182, 213-288, 370-377. ANIMALS, INJUKIKS TO, :JH7. :I8». «77 days allowefl by statute after receipt of said notice, the defendant was at the residence of the plaintiff, ready to pay him the full value of the stock injured, but the plaintiff was absent from home, and that the defend- ant wjis still ready to pay the amount of the actual damages sustained. Held, that a de- murrer to the defendant's plea was properly sustained. Hammans v. Chit ago, R. I.&* P K. Co., 83 /07ifa :!87. 48 A'. IV. Rep. 978.— Reviewing Manwell v. Burlington, C. K. & N.R. Co.. 80 Iowa 662. Under Mississippi Code 1880, § 1204, Pro- viding that a mortgagor, before foreclosure, shall be deemed the owner of the property mortgaged, it is no defense to an action against a railroad company for killing stock that the property was mortgaged and the mortgage past due. Illinois C. R. Co. v. Hawkins, i\ Am. Eng. R. Cas. 617, 18 Neb. 215. Curry v. Chicago A' N. W. Ji. Co., 43 Wis. 665. Chicago &• N. W. R. Co. v. Harris, 54 ///. 528. New Albany &* S. R. Co. v. Aston, 13 /nd. 545. Gillam v. Sioux City &• St. P. R. Co., 26 Minn. 268, 3 A^. W. Rep. 353. K'n-hs V. U/iiitritpdl/s iy- .SV. J.. A'. Co., 20 Am. &* Eng. R. Cits. 478, 64 /(W.i 670, 21 A^. H'. Rep. 131. Missouri Puc. R. Co. v. Roads, 23 Am. &> Eng. R. Cas. 165, 33 Kan. 640, 7 Pac. Rep. 213. Dujy v. AWr- Vorl: &• H. R. Co., 2 Hill. (A', )'.) 496. Corwin v. Neio York ^ E. R. Co., 13 A'. }'. 42.* JI87. IleleJise.— A party whose cattle had been killed through the failure of a com- pany to build proper fences agreed to release the company from all liability, provided they would furnish him with a cattle pass, con- struct certain fences, etc. Held, that until the company furnished such pass, fences, etc., the release was inoperative, and that the evidence was insufficient to show that the company had furnished them. Terre Haute &• I. R. Co. v. Flanigan, 20 Am. &* Eng. R. Cas. 452, 94 /nd. 336. The release of a right of way through his lands by a plaintiff suing for stock killed, the building of fences along the line of the railroad through the lands by the railroad company, and the use of the fields adjoining for pasturage by the plaintiff, relying on the fences for protection to his cattle, will not make the fences partition fences, which the plaintiff would be bound to keep up; and a release by the plaintiff to the company of the right of way through his land, and " of all damages and rights of damages, actions and causes of action, which I might sustain or be entitled to by reason of anything con- nected with or consequent upon the location or construction of said work, or the repairing thereof when finally established or com- pleted," does not extend to actions for damages for stock killed. Cleveland, C, C. 6- /. A'. Co. V. Crossley, 36 /nd. 370. A release in a right-of-way deed to a rail- road company, which " hereby releases all damages and claims thereto to all his [the grantor's] other lands by reason of, or occa- sioned by, the location, construction, and operation of a railway over and upon the premises hereby conveyed," does not con- stitute a defense to an action by the grantor for damages for killing stock occasioned by the failure to build the fence required by the statute. Stoutimore v. Chicago, M. &* St. P. R. Co. 39 Mo. App. 257, 388. Animals unlawfully within Indian Territory. f— A railroad company in the Indian Territory cannot excuse a lack • But for the rule in some of the States and in Canada, see ante, 1{S3. f See <>»/<-, 10,318. 5 m 278 ANIMALS, INJURIES TO, :I8»-.1«2. :1 is of care wliich leads to an injury to cuttle, by showing that the cattle arc unlawfully with- in the Territory. Gu//, C. &- S. /\ A'. Co. v. Was/iingtoH, 49 Fe; ruck. 12. iilly. n iir- s ruti tlic not o the flf to egli- ovcr- s cut Venn., 7 So. vant on a trial under ^ 2612 Missouri Kcv. St. 1889, (or injury to live stock. I^y'ggs V. St. Louis &• S. !•'. A', Co., 1 1 1 Mo. 168, 20 S. IF. /iep. 32. iW'3. Uvlcvuiit to Hhow i)laintiil''H duty to fence.— Where a company is sued for killing stock by reason of a defec- tive fence, it is competent for it to show that in the assessment of plaintiff's damages for ri^lit of way the increased cost of fencing was considered, and that he was allowed compensation therefor; such evidence tend- ing to show that it was the duty of the plaintiff to fence. Georgia A". <&>• B. Co. v. yhi(Ur^'>tr. -} Ga. no. :)1>4. Kclcvuut to show that fence was defective.— It was claimed that the cattle sued for went upon the railroad track by reason of the defective wing-fence on one side of a cattle-guard, and at the trial plain- tiff was permitted to j)rove by a witness, who lived in the neighborhood, that he had repeatedly seen live stock pass over the fence, and had seen a boy ride a horse across the fence. //<•///, that the evidence was properly admitted. Chicago &* N. IV. A'. Co. v. Hart, 22 ///. App. 207. To recover damages for the killing of stock caused by defective fences, plaintiff is not entitled to the admission of testimony to show that others of the plaintiff's stock had, on several occasions, months before, been seen on defendant's rigb* of way. /M V. Chicago 8. Relevant to show defective gate faHteu!n{;H.f — Where it is claimed that cows passed through a gate onto the railroad track by means of the imperfect fastenings of the gate, it is proper to allow testimony tending to show that other like fastenings had proved insufficient, where the court charges the jury that before such evi- dence could be considered it must appear that the fastenings were not only alike, but that the manner in which they were put on, and in which the gates were hung, was in all respects the same. Payne v. Kansas City, St. J. &• C. B. R. Co., 35 Ant. &- Eng. R. Cas. 113, 72 Iowa 214, 33 A^ IV. Rep. 633. 399. Relevant to nIiow how gate was opened. — Where it appears that cows escaped onto a company's track through a gate, it is competent to prove that their calves were on the other side of the track, as tending to show that the gate was opened by the cows themselves, and tending there- fore to disprove negligence. Payne v. Kan- sas City, St. J. &* C. B. R. Co., 35 Am. &* Eng. R. Cas. 1 1 3, 72 Iowa 214, 33 A'^, W. Rep. 633. 400. Relevant to show unlawf^il rate of speed.t— Where a company is sued for negligently killing stock within the limits of a village, it is competent to put in evidence the village ordinances regulating •See ante, 126, 148, 213-288,364, 373 + 's*ee ante, 178 ; post, 462, 504, 54.3. tSee ante, 69-72, 198, 210, 211, 345 ; post, 457, 481, 502, 545. 280 ANIMALS, INJURIES TO, 401-404. 31 ;» the speed of trains. Cleveland, C, C. &* Si. L. R. Co. V. Ahrens, 42 ///. App. 434. In a common-law action against u railroad for negligently running over and killing a cow, it is competent for the plaintiff :o prove that the train was running in excess of the spcjd permitted by an ordinance of the town in which the killing occurred. Robertson v. Wabash, St. L. &* P. R. Co., 84 Mo. 119. In an action for the value of a cow killed within the corporate limits of the city of L. the killing of the cow and her value were admitted. The question was whether the employes of the company were negligent in killing said cow. As bearing upon this question, the ordinances of the city limiting the rate of speed at which trains of cars might be run were proper evidence, but not conclusive proof of the fact of negligen* e, even if violated. Chicago, B. 6^ Q. R. Co. V. Richardson, 42 Am. Sf Eng. R. Cas. 592, 28 Neb. 1 18, 44 N. W. Rep. 103. 401. Relevant to show that car was calculated to frigrhten horses.— Evi- dence that another horse had become frightened at the same car, on a previous occasion, was competent to show that it was calculated to frighten horses, and negligence in permitting it to remain at that place. Harrell v. Albemarle 6f R. R. Co., 1 10 A^. Car. 215, 14 5. iE". Rep. 687. 402. What is irrelevant.— The evi- dence showed that it was not killed near any depot, road crossing, town, or other place at which the statute requires the bell to be rung, the whistle blown, and speed re- duced. At the trial the engineer who was in charge of the train appeared as a witness and was asked on cross-examination if he could remember, after making- a trip, at which points he rang the bell and blew the whistle, including depots and other points. Held, that the inquiry was irrelevant. Memphis (S- C. R. Co. v. Lyon, 62 Ala. 71. Evidence that the company had at differ- ent times paid other persons for cattle killed by its trains at the same place was irrelevant and inadmissible. Georgia R. P. R. Co., 64 Mo. 523. Under the Tennessee Code, railroads were prima facie liable for every injury to live stock by their moving trains, but were per- mitted to exonerate themselves by affirma- tive proof of observance of all the prescribed statutory precautions. The condition of track as to fencing was not material. Cin- cinnati, N. O. M. R. Co. v. Wrape, 4 Ind. App. 108, 30 N. E. Rep. 427. Where there is no direct evidence of a collision, nor of traces of one, along the track, evidence to show that such traces are always found when stock is struck by a train is not admissible. Clark v. Kansas City, St. L. &' N. IV. R. Co., 55 'owa 455, 8 N. W. Rep. 328.— Reviewing Stu'sman v. Burlington & S. W. R. Co., 53 Iowa 760. As the company must e."ercise the utmost care, in the enjoyment of their own privi- leges, to avoid doing injuries to others, it was held that, where recovery was sought for *See/>M^45a, 480. injury tu cattle, the fact that the road was not fenced must be taken into consideration by the jury in determining the degree of care and diligence to be used by the company. Gorman v. Pacific R. Co., 26 Mo. 441. Where there is no direct evidence that a cow was killed by a passing train, it is com- petent to prove tliat her body was found near the track, torn and mutilated, and that there was blood and cow-hair on and near the track. Blewett v. Wyandotte, K. C. &» N. W. A'. Co., 72 Mo. 583.— Reviewed in Hesse v. St. Louis, I. M. & S. R. Co., 36 Mo. App. 163. Where there is no direct evidence that an animal was killed by a passing engine, it is competent to prove that on the day when the animal was killed a passing engine at a station seventeen miles beyond had fresh blood and hair on it. International &* G. N. R. Co. V. Hughes, 81 Tex. 184, 16 S. W. Rep. 875. 406. Negative evidence.— Where the witness testified that the whistle of the en- gine was not sounded for a highway crossing near the place of the injury, he may also be permitted to state that his attention was particularly called to the omission by an in- quiry by liis son as to ' " y the engine did not whistle. Louisville, E. &* St. L. R. Co. V. Hart, 2 Ind. App. 130, 28 N. E. Rep. 218. 407. Judicial notice. — Where cattle are shown to be on a highway approaching a railroad track, a court will take judicial knowledge of the fact that the sight and sound of an approaching train will often frighten them back, while at other times the ringing of a bell or the sounding of a whis- tle will not do so. St. Louis, V. &» T. H. R. Co. V. Hurst, 25 III. App. 181. The supreme court takes judicial notice of county boundaries, and that a certain dis- tance from a place named in a county is within that county. So held, in an action for killing cattle. Terre Haute &* I. R. Co. W.Pierce, 19 Am. &• Eng. R. Cas. 581,95 /« Eng. Ii. Cas. 128, 84 Ala. 182, 4 So. Rep. 392. Parol testimony that a street has been abandoned is not admissible to prove that it has been vacated, for that is properly a matter of record (Code Iowa, § 464) ; nor is it admissible for the purpose of showing that the public has lost its rights by non- user, for as to that it would be the legal conclusion of the witness. So held, in an action for injury to stock at an unfenced street crossing. Lathrop v. Central Iowa R. Co., 6^Io7va 105, 28 N. W. Rep. 465. 400. Hearsay evidence.— In an ac- tion »or double damages for cattle killed by a train on defendant's railroad, at a place where defendant had a right to build fences but failed to do so, the testimony of a wit- ness of what he had seen and knew from acquaintance with the locality is not hear- say or evidence based upon tht opinion of the witness. Dunn v. Chicago &* N. W. R. Co., 7 Am. &• Eng. R. Cas. 573, 58 Iowa 674, 1 2 A^. W. Rep. 734. Where the exact point where the acci- dent happened is disputed, the plaintiff may testify to the place pointed out to him by a section foreman as the point where the colt was killed, but he may not state what the foreman said. Karr v. Chicago, R. I. &* P. R. Co. (Iowa), 54 N. IV. Rep. 144. Statements made as to the pedigree of a heifer killed by a railroad company, as that she was a thoroughbred, are not competent evidence where it does not appear that the party making the statements was either dead or beyond the process of the court ; and on the same principle a paper purport- ing to give such pedigree is not admissible, and its admission by the trial court is ground for reversal. Hamilton v. Wabash, St. L. &» P. R. Co., 25 Am. &• Eng. R. Cas. 294, 21 Mo. App. 152. 410. Sliowiugr similar accidents at same place. — Where a horse has been killed at a crossing through an alleged de- fect in a railroad track, it is not competent to prove other accidents at the same place. North Chicago St. R. Co. v. Hudson, 44 ///. App. 60. Evidence tending to show the defective condition of the crossing some months pre- vious to the injury, and that one of the horses driven by the witness was caught in the same way and at the same place, is ad- missible on the question of notice. Toledo, St. L. &* K. C. R. Co. V. Milligan. 2 Ind. App. 578, 28 A^. E. Rep. 1019. There was no error in rejecting evidence offered by plaintiff that other cattle were in the habit of running at large in the vicinity of the place of accident, and that some of them had been killed on the track, as those facts would not aid his case. Mc- Candless v. Chicago &* N. W. R. Co., 4$ Wis. 365. ( 411. Showing custom to allow animals to run at large. — In California, where a railroad company is sued for killing stock on a track, pnd sets up as a defense the negligence of the owner in permitting it to run at large, it is competent for the plaintiff to show that it was the custom of the country to permit such animals to go tn r- ANIMALS, INJURIES TO, 41ti-41<>. '^^•i at large upon uiiiiiclosed lands. IFah-rs v. Moss, 1 2 Ca/. 535. 412. Showing that repairs were made after the aocideut.— Where a company is sued foi an injury tu a liorse at a planked crossing, it is error to allow plain- tiff to prove that soon after the accident the company took up the planks at the crossing and put down new ones. Payne v. Troy M. K. Co. v. Wrapc, 4 Ind. App. 108, 30 N. E. Rep. 427. A question to a witness, " Where was the steer when the train struck him, as indicated by the marks on the ground and track ? " is not objectionable as calling for an opinion merely. Panning v. ^ong Island R. Co., 2 T. 6- C. (,X. Y.) 585. 414. Opinions as to cause of injury or deatli. — Where a witness stated the condition in which an aninuil was found on the side of a track, it was //6'A/ error tc allow him to be asked what, in liis opinion, caused the injury. Muff v. Wabash, St. L. &* P. R. Co., 22 Mo. App. 584.— Quoting Koons v. St. Louis & I. M. R. Co., 65 Mo. 597. Where a company is sued for killing stock, and the question is whether the injury in- flicted by the company caused death, it is error to permit a witness to give his opin- ion or conclusion that the injury caused the death of the animals, where he merely testifies that he has handled stock for twenty years, and is well acquainted with their pro- pensities and dispositions, but it does not appear that he was better acquainted with such stock and with causes producinir death than men of ordinary experience. Texas &^ P. R. Co. V. Weakly, 2 Tex. App. (Civ. Cas.) 728. 415. Opinions as to whether it was possible to have stopped train. — The vital question being whether the de- fendant's servants could have stopped the train in time to avoid the injury, after the cows were first seen on the track, it was error to take the opinions of witnesses who had no practical familiarity with the running of trains, nad never been employed on a locomotive, and whose only knowledge about the running and stopping of trains was derived from seeing them arrive and depart at the station in their vicinity. Gourley v. St. Louis &> S. F. R. Co., 35 Mo. App. 87. — Quoting Eckert v. St. Louis, I. M. & S. R. Co., 13 Mo. App. 352; Maher v. Atlantic & P. R. Co., 64 Mo. 276 ; Robertson V. Wabash, St. L. & P. R. Co., 84 Mo. 119; Boston & W. R. Co. v. Old Colony & F. R. R. Co., 3 Allen (Mass.) 142. — Followed in Igo V. Chicago & A. R. Co., 38 Mo. App. 377. 416. Opinions as to the number of animals that were killed. — In an action to recover for the death of stock through a flood occasioned by defendant's negligence, a witness who has stated fully his means of information as to the loss of Wii T I 284 ANIMALS, INJURIES TO, -H7-4-^;J. :^ w^ ■'i "f the stock, and shown that he was in a posi- tion to enable him to form an estimate, may give his opinion as to the number of dead animals when no better evidence can be ob- tained. Sabine iS- K. T. R. Co. \.Brousard, 34 Am. (s^ ling. K. Cas. 199, 69 Te.v. 617, 7 S. IV. Rep. 374. 417. OpiiiioiiM UM to how far an animal may be seen. — Where stock is killed in the moming before it is fully light, as touching the question of whether due care was used by those in charge of the train in not seeing the stock and avoiding the accident, it is competent to prove by wit- nesses their experience as to how far such an animal could be seen at that time in the morning. Chicago &* A. R. Co. v. Bock, 17 Ill.App. 17. 418. Expert testimony, generally. — An experienced grazier is competent to testify as an expert, in regard to the condi- tion of cattle and to causes affecting their health and weight, on a supposed state of facts, and is competent to give his opinion of the effect of disturbance on cattle, but not to say, as matter of opinion, that the con- struction of a railroad through the pasture on which they were feeding would disturb them and set them to running. Baltimore Sf^ O. R. Co. v. Thompson, xoMd. 76. 419. Expert testimony as to the management of train. — Where .the en- gineer, having several years' experience in that capacity, testified that he sounded the stock-alarm, put on the air-brakes, and re- versed the engine when he saw the cattle, he may further testify that, in his opin- ion, he did all that he could to prevent killing the cattle. Little Rock &* M.R. Co. v. Shoecraft, 56 Ark. 465, 20 5. W. Rep. 272. The engineer in charge of the loconiotive at the time of such killing, who saw the horses when they came upon the track, who is shown to be acquainted with the business of running railroad locomotives and trains, and had been engaged in s'lch business for five years, is competent to testify, as an ex- pert, upon questions in respect to the man- agement of locomotives and trains, and to give an opinion whether, in view of the dis- tance between the engine and the horses when latter came upon the track, it was pos- sible to avoid the injury complained of. Belief or taine <&* /. R. Co. v. Bailey, 1 1 Ohio St, 333.— Distinguished IN Burns 7'. Chicago, M. & St. P. R. Co., 69 Iowa 450, 420. Expert testimony as to fiie necessity aiul snflieieney of eattle- gnards.*" — It is not error to exclude the opinion of an expert witness that the plac- ing of a cattle-guard within a given di>tance from the end of a switch would endanger the safety of the trainmen. Pennsylvania R. Co. V. Lindley, 2 Ind, App. 1 1 1, 28 A'. E. Rep. 106. Where it is claimed that a hoise was killed by reason of the defective construc- tion of a railroad, it is incompetent to prove by an expert that cattle-guards were, in his opinion, necessary. Amstein \. Gardner, 16 Am. &* Eng, R. Cas. 585, 134 Mass. 4. 421. Expert te.stiniony as to the sufficiency of a fence.f — Where it is claimed that a fence is generally defective and insecure, it is proper for the plaintiff to inquire of competent witnesses whether such fence was such as good husbandmen usually kept. Louisville, N. A. &* C. R. Co. v. Spain, 61 Ind. 460. 422. Admissibility of experiments made by witnesses. — Where it is at- tempted to show that those in charge of a train were negligent in killing stock, it is proper to prove experiments by witnesses, made for the purpose of determini.ng wheth- er stock could have been seen under such circumstances as those existing at the time of the killing. Chicago A^A. R. Co. v. Legg, 32 ///. App. 218. And this is true though the conditions at the time of the accident were somewhat dif- ferent from th( se at the time of the experi- ments. Illinois C. R. Co. v. Burns, 32 ///. App. 196. 423. Showing value of animal killed, generally.!— In an action for kill- ing a cow, it is competent to admit all evi- dence tending to show the good qualities of the cow which affect her market value. St. Louis &>» S. F. R. Co. v. Dudgeon, 28 Kan, 283. Upon the question of damages, it is proper to allow witnesses to testify as to the value of animals before and after the injury. Louis- ville, N. A. &• C. R. Co. v. Peck, 99 Ind. 68. Where suit is brought for the killing of u horse, and the plaintiff states that he had bought it some four or five years before, and *SeeaM/e, 162, 348; fosf, 461. I See ante, 100-113, 349-353; 460, 488, 506. X See fast, 579-594. f«st. ANIMALS, INJURIES TO, 424-4»l. 285 that it was worth so much at the time of the killing, it is not competent on cross-examin- ation to ask him what he paid for it. John- son V. Baltimore (s* O. Ji. Co., 2S IV. Va. 570. So where a plaintiff testifies as to its value, and states that he paid for the horse by ex- changing other animals, it is not competent on cross-examination to further inquire where he got such other animals, what he paid for them, etc. Hohtine v. Oregon &* C. A\ Co., 8 Or eg. 164. Where the owner of stock killed procures an appraisement of it under the Alabama statute, the value fixed by the appraisers is evidence of an admission on the owner's part that the appraisement is the full value of the animal ; but this is only a presumption, and may be rebutted, as that he told the ap- praisers to fix the lowest cash value of the animal, under some agreement with an agent of the road that it should be paid without delay. East Tenn , V. 6- G. R. Co. v. Bay- liss, 19 Am. Sr' Eng. R. Cas. 480, 74 A/a. 1 50. The plaintiff introduced a witness who stated that he was acquainted with the value of horses, but had never seen the horse in controversy. The witness was then asked, " What, on the loth day of May (the day of the killing), was the average price of a horse fifteen or sixteen hands high, three or three and one-half years old, and sound, except the ringbone on the hind foot, which had been killed .' " NeM, that the court erred in per- mitting the witness to answer the question. To/edo, 6- IV. R. Co. v. SmttA, 25 /nd. 288. 424. Showing market value of the animal. — In an action for killing a mare, it is not error to permit the following question to be answered: "Suppose 'Little Miss' (the mare) 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 you to state what was her fair market value ; " especially so where counsel apprise the court that if they do not maintain the hypothesis upon which the question is put, the evidence will be struck out. Cincin- nati, H. <§<• /. R. Co. v. Jones, 31 Am. &' Eng. R. Cas. 491, III /«• /. R. Co. v. Jones, 31 Am &> Eng. R. Cas. 491, iii Ind. 259, 9 West. Rep. 602, 12 N. E. Rep. 113. 430. Who may testify as to ani- mal's value. — Every one is presumed to have some idea of the value of property which is in almost universal use; and it is not necessary to show that a witness is a drover or butcher before he is allowed to give an opinion as to the value of a cow killed. Ohio &> M. R. Co. v. Irvin, 27 ///. .78. Witnesses who are familiar with the kind of animals sued for are competent to testify as to their value without having ever seen them. Smith v. Indianapolis &> St. L. R. Co., 7 Am. &^ Eng. R. Cas. 582, 80 /nd. 233. — Quoting Bowen v. Bowen, 74 Ind. 470; Johnson v. Thompson, 72 Ind. 167 ; Com'rs of Marion County w. Chambers, 75 Ind. 409; Holten V. Com'rs of Lake County, 55 Ind. 194. Where the plaintiff testifies that he has bought and sold cattle for twenty years, he may properly be permitted to testify as to the value of the cattle injured. Plunkett v. Minneapolis, S. St. M. n. 6>» £n^. Ji. Cas. 557, II Mon/. 4S3, 28 Pac. Rep. 729. 432. Declarations of ent;iiieer.— Two mules having been run over and killed or injured by an engine in charge of an engineer or fireman, while running by night, the declaration or exclamation of the fire- man to the engineer " immediately after " running over the first mule, " You have knocked off one on this side," is not ad- missible as evidence against the railroad company, unless facts are shown that bring it within the principle of resgesta. Western Ji. Co. V. Sis trunk, 85 Ala. 352, 5 So. Rep. 79. Where a company is sued to recover for the value of stock killed through the al- leged negligence of an engineer in charge of a train, it is error to allow plaintiff to prove delarations of the engineer, touching the accident, made long after its occurrence. Price V. New Jersey R. &• T. Co., 31 N.J. L. 229.— Following Sharrod v. London & N. W. R. Co., 4 Exch. 580. 433. Declarations of section boss. — There was evidence tending to prove that a colt was killed by an engine ; that a servant of the company carelessly put down the fence through which the colt escaped from the field onto the track ; that a cherry-tree had been cut at the place where the colt went through the fence; that it could not have been cut without laying down the fence ; and that the agent of the company cut the tree, and necessarily put down the fence, following the declaration of the agent, made at another time and at a different place, and on the farm of another, to wit : "The section 'boss' told him [the witness] that he had been ordered by the railroad company to cut all the trees along the line, and that they had cut all the trees from Summit Point down." Held, that the evi- dence was inadmissible. Coyle v. Balti- more &- O. R. Co., 1 1 W. Va. 94. 434. Declarations of station agent. —Under the Kansas act of 1874, Conip. Laws 1879, p. 784, a demand must be made of a railroad company for the value of stock killed or the injuries thereto ; but this de- mand may be made of any ticket or station agent, and, under § 3 of the act, may be oral. Hence it follows that what the agent says when such a demand is made concerning the matter may be given in evidence against the company as part of the resgesta. Cen- tral Branch U. P. R. Co. v. Butman, 22 Kan. 639. 435. Docninentary evidence, gen- erally. — In an action by an administrator against a company for the negligent killing of stock belonging to the estate, the appraise- ment of such property returned by him as administrator is not competent as evidence of the value of said property, ex ept to rebut the testimony of the persons, making such appraisement, if called as witnesses upon that question. Morrison v. Burlington, C. R. &• N. R. Co., 84 Iowa 663, 51 N. W. Rep. 75. A paper purporting to be the pedigree of an animal, to recover damage? for the kill- ing of which the action is brought, is inad- missible in evidence to show that said animal was a thoroughbred, and therefore of greiit value. Hamilton v. Wabash, St. L. &^ P. R. Co., 25 Am. <&- Ettg. R. Cas. 294, 21 Mo. App. 152. affidavit. — Where the point in issue is : " Did the horse stray on the bridge and fall off, or was he driven on the bridge by an approaching train ?' an affidavit of the plaintiff filed in support of a motion .'■• • ; continuance, and showing that the a^jp . of a train drove the horse on the . C. R. Co. V. McClurg, 47 I mi. 1 38. On trial of an action for killing plaintiff's animal on the railroad with a locomotive, a failure to prove that tlie defendant was operating the road, and that it ran one of its locomotives thereon against the animal and killed it, as alleged, was a failure to prove two of the material allegations of the complaint. Wabash R. Co. v. Fo'shee,77 Ind. 158.— Distinguishing Evansville & C. R. Co. V. Smith, 65 Ind. 92 ; Evansville & C. R. Co. V. Snapp, 61 Ind. 303 ; Toledo, W. & W. R. Co. V. Weaver, 34 Ind. 298. In a suit against a railroad for killing stock, the evidence must show that the stock were killed by the defendant road. Loganspori, P. &> B. R. Co. v. Caldwell, 38 ///. 280.— Distinguished in Toledo, P. & W. R. Co. V. Eastburn, 54 111. 381. In a suit against a company to recover for stock killed, the allegation tliat the road was not fenced is a material one, and must be proved. Indianapolis &• C. R. Co. v. Wharton, 13 Ind. 509. In an action to recover for the killing or injuring of live stock by railroad cars, at a point on its track where the track might have been fenced, but was not, the allega- tion that the track was not fenced must be proved on the trial. Pittsburgh, C. &^ St. L. R. Co. V. Hackney, 53 Ind. 488. 442. Must show that killing or in- jury was caused by company's negli- gence. — To sustain a common-law action against a company, by the owner of an ani- mal, for injury negligently inflicted on the animal by the defendant's train of cars, there must be evidence that such injury re- sulted from the negligence of the defend- ant's employes operating such train. Cin- cinnati, H. &• I R. Co. V. Bartlett, 58 lud. 572, igA/n. Ry. Rep. 17. A demurrer to plaintiff's evidence is properly sustained where there is no proof except of the killing, but nothing to show that it was negligent. Flannery v. Kansas City, St. J. 6- C. B. R. Co., 23 Mo. App. 120; affirmed ^7 Mo. 192. To recover for negligently killing stock, there must be shown a connection between the killing and omission of duty required by law of the defendant; and an agreed statement of facts set out in the opinion does not in any way justify the legal con- clusion that the defendant negligently killed the plaintiff's cow. Smith v. Hanni- bal &• St./. R. Co. 47 Mo. App. 546. 44i<. Must show killing in county where action brought.* — In an ac- tion, under the Indiana statute, for killing stock, the evidence must affirmatively show, either directly or by inference, that the stock were killed within the county where the action was brought. Louisville, N. A, &* C. R. Co. V. Breckenridge, 64 Ind. 113. — Overruled in Terre Haute & I. R. Co. v. Pierce, 19 Am. & Eng. R. Cas. 581, 95 Ind. 496. — Croy V. Louisville, N. A. 6- C. R. Co., 19 Am. &* Eng. R. Cas. 608, 97 Ind. 126. Where, in an action under the stock law of 1874, lo recover damages for the killing of a horse by the train of defendant, the case coming to this court upon simply the find- ings of fact and without any testimony, the findings read " that said plaintiff then re- sided about three-quarters of a mile from the railroad of the defendant, in the county of D. and state of Kansas, and about two and one-half miles north of Baldwin city, and in said county and state," and then state the circumstances of the injury, which took place as he was riding towards a spring on the opposite side of the railroad, and about seventy-five yards therefrom — held, that a general conclusion and judgment in favjr of the plaintiff will not be reversed on the ground that it does not appear that the animal was killed in the county of D. Kan- sas City, L. -^S. R. Co. v. Phillibert, 25 Kan. 582. — Followed in Missouri Pac. R. Co. v. McCally, 41 Kan. 639, 655, 21 Pac, Rep. 574. 444. Need not show that defend- ant is a corporation. — Where an action is brought in a justice's court, under § 30, ch. 84, Comp. Laws 1885, against a railway com- pany for the killing of stock, and no answer is filed or appearance made by the defend- » See ante, 290, 329 ; post, 499. 'T ANIMALS, INJURIES TO, 445-447. 289 ant before the justice of the peace, and the defendant appeals to the district court, on the trial in the district court it is not nec- essary for the plaintiff to prove that the railway company is a corporation to entitle him to recover. The proof that the de- fendant was a railway company operating said railway at the time of tlie injury, under ^ 3", is sufficient. Kansas City, L. 6>» S. K. R. Co. V. Bolson, 35 Ain.&^Etig. A'. Cas. 144, 36 Kan. 534, 14 Pac. Rep. 5. Evidence that an animal was injured upon tiie track of a railway known as the Cincin- nati, Hamilton & Indianapolis Railroad, a i)ranch of the Cincinnati, Hamilton & Dayton Railroad, sufficiently indicates that the former is a corporation by thai name, and presumptively liable for the injury. Cincinnati, H. &* I. R. Co. v. AIcDougall, 108 Ind. 179, 8 A^. E. Rep. 571. 445. Sufficiency of evidence to sliow ownersliip of animal.'" — A judg- ment for plaintifT awarding damages for cat- tle killed cannot be supported without proof that he owned the cattle. Turner v. St. Louis (S- .S'. F. R. Co., 76 Mo. 261. A judgment in favor of plaintiff, in an action to recover for stock killed, cannot be supported without evidence showing that he was either the owner or in possession of property. Alexander v. Hannibal &* St. J. R. Co., 76 Mo. 494. Where a company admits the killing of stock and tenders a certain amount in pay- ment therefor, which is not accepted, and suit is brought, the only real question at issue is the value of the stock, as the tender is indirectly an admission that plaintiff is the owner, and he may dispense with proof thereof. Scott v. Chicago, M. &* St. P. R. Co., 78 /owa 199, 42 A'; IV. Rep. 645. Plaintiffs suing as joint owners in an action for killing live stock are required to make reasonably strict proof of their title and ownership. Illinois C, R. Co. v. Finnigan, 21 ///. 646. 446. To show that defendant owned railroad. t— In a suit for killing stock where the road was not fenced, it ap- peared that the road was part of a line which, when constructed, was supposed to belong to another company than the de- fendant (the C. & I. A. L. R. Co.), and that before the killing the defendant had mort- *See/w/, 471. t See ante. 339 ; post, 470-477. I D. R. D.— 19. gaged that line of road to secure certain bonds, reciting therein that the defendant had entered into an agreement of consolida- tion with the C. & I. A. L. R. Co., and agreed to issue the bonds a.-f* mortgage. It also appeared that the defendant did not run regular trains over that road until after the killing. Held, that the evidence justi- fied the inference that the defendant owned and controlled the road at the time of the killing. Louisville, N. A. &^ C. R. Co. v. Meadows, 87 /nd. 441. It cannot be said that there was no evi- dence tending to prove that at the time when the plaintiff's steer was killed trains were running on the defendant's railway, or that the defendant was owner of the railway, when the record shows that the cause was tried on an affirmative theory as to thoE" points, that the testimony of all the wit- nesses manifestly assumed such running of the trains, that the defendant's answer was under the name of the railway company charged, and the defendant made no objec- tion to the plaintiff's testimony that the animal was killed on the railway ider.tified with that name. Keltenbaugh v. St. Louis, A. Eng. R. Cas. 481, 19 Oreg. 371.— Following Hindman v. Ore- gon R. & N, Co., 17 Oreg. 619. (2) What is insufficient. — In an action for neyligenily killing stock, where there is an utter failure of proof of negligence, as in this case, there can be no recovery ; mere conjecture will not do. Perse v. Atchison, T. P. R. Co., 22 A/inn. 404. In an action for damages for killing cattle at a point not on or in the immediate vi- cinity of a public road crossing, the evidence of a failure to ring a bell or blow a whistle on approaching the crossing, at a consider- able distance from the place of the accident, is not such proof of negligence as will war- rant a verdict for plaintiff. Long v. St. Louis, A'. &^ N. IV. R. Co., 2}, Mo. App. 178. 450. Sliowiiig fhiliire to keep look- out, olicck trniii. or reverMe engine.* — (1) Proof Sufficient. — Proof that a cow that was killed on a track could have been seen when a mile away, that no effort was made to stop the train, and that no signals were given to frighten her off until within 150 yards of her, is sufficient proof of negli- gence to warrant a recovery against the company. Ohio, /. 6-« U\ R. Co. v. Klein- smith, 38 ///. App. 45. Proof that several cattle were crowded on a track in plain view of the engineer for 100 rods, but that he ran on without making any effort to stop the train, is sufficient to show such negligence as will make the company liable for an injury thereto. Laiusonv. Chi- cago, R. I. (S- P. R. Co., 57 lozva 672, 11 N. W. Rep. 633. A company will be adjudged guilty of negligence under evidence showing that a cow was injured by a train at a point where she might have been seen eight hundred feet away, and that the train might have been stopped within six hundred feet, but that it ran without slackening its speed or sounding a whistle, and that when near the cow she ran on the track some thirty feet before the engine before she was struck. Kansas City, Ft. S. &• G. R. Co. v. Nines, 19 Am. . 481, I o i/. .S; ////. 640, 4 C. C. A. 454.— Foi.i.fiWKi) IN Gulf, C. A S. F. R. Co. V. Seifred, 54 T'-'l. Rep. 485, 10 U. S. App. 650, 4 C. C. A. 459; Gulf, C. & S. F. R. Co. V. Wallace, 54 F-d. Rep, 485, 10 U. S. App. 647. 4 C. C. A. 458- (2) Proof Insufficient.— Prool that the en- gineer did not keep a look-out for stock straying upon the track does not show neg- ligence upon the part of the company, for he is only required to use ordinary and rea- sonable care after discovering such stock. Memphis &* L, A'. A\ Co. v. /Cerr, 40 /Im. <&«• ASng: A". Gis. 171, 52 Ari: 162, 12 S. W. Htp. 329, 5 A. A'. A. 429. Tlie court instructed that the defendant would be liable if tlic engineer, " in the ex- ercise of ordinary care, could and should have prevented said accident after he actu- ally saw the cattle on the track," The jury specially found that the engineer " might have seen the cattle sooner." Held, that, with no other evidence of negligence on de- fendant's part, a verdict for plaintiff was contrai-y to said instruction, and could not be sustained. Davidson v. Central Iowa R. Co., 35 Am. &» Eng, R. Cas. 158, 75 Iowa 22, 39 A^. IV. Rep. 163. 451. Showing that train waH be- hind time.— Evidence merely showing that a train was behind time will not, in the absence of proof of other negligence, render a company liable for an accident occurring at a private crossing. Annapolis &* B. S. L, R. Co. V. Pumphrey, 42 Am. &* Eng. R. Cas. 599, 72 Md. 82, 19 Atl. Rep. 8. 452. Showing negligence by cir- cumstantial evidence.*— Negligence on the part of a company in killing stock may be established either by proof of the facts and circumstances attending the transac- tion, or by showing that the injury was done on a part of the road not inclosed by a lawful fence, and not at the crossing of a public highway — facts from which the law raises an inference of negligence. Calvert V. Hannibal &* St. J. R. Co., 38 Mo. ifirj.— Following Brown v. Hannibal & St. J. R. * See ante, 405 ; post, 486. For circumstantial evidence as to condition of animal when found that will support a verds c for plaintiff, see 38 Am. & En(J. R. Cas. fo^, abstr. Co., 33 Mo. 309; Calvert v. Hannibal h St. J. R. Co., 34 Mo. 242. In order to establish the liability of a company for killing stock that go upon the track through a break in the fence, it is not necessary to show the facis by direct evidence, but they may be inferred from circumstances. Mi Bride v. Kansas City, S/. 7. i&- C. li. R. Co., 20 Mo. App. 216.— Fo I,. LOWING Gee v. St. Louis, I. M. & S. R. Co., 80 Mo. 283.— Applied in Harned v. Mis- souri Fac. R. Co., 51 Mo. App. 482. In an action brought under § 1289 of the Code of Iowa, to recover damages for inju- ries to a marc running at large, it appeared that the defendant's track ran east and west, and that the plaintiff's mare was found fast in the north end of the cattle-guard, outside of the r\oK\.\\ rail, on an embankment of earth some feet from the track, with her back under the ends of the ties, her head to the west and her feet projecting upwards and outwards; that when found the mare had bruises and injuries on the left side of her body, neck, and head, and some on her right side ; that the evidence tended to show that two trains passed west on the defend- ant's line early in the morning on the day the mare was thus found ; that the signal for stock on the track was heard ; that the track- men came to take the mare out, and that a horse's tracks were found in the snow, showing tliat some horse had come onto the grade east of the cattle-guard and traveller! west to within twelve or fifteen feet of the guard, where the tracks ended, and that no tracks were seen about the guard. Held, that a verdict awarding the plaintiff dam- ages as provided in the above section was supported by the evidence. Brockert v. Central Iowa R. Co., 82 Iowa 369, 47 N. W. Rep. 1026.— Reviewing Moore v. Burling- ton & W. R., 72 Iowa 75 ; Asbach?/. Chicago, B. & Q. R., 74 Iowa 248 ; Meade v. Kansas City, St. J. & C. B. R., 45 Iowa 699. Where there is a decided preponderance of evidence that the animals injured were not left in the right of way, but in an ad- joining pasture, and that the gate for the private way over the railway was closed, and that there was no way by which tlie coVs could escape from the pasture upon the right of way except by going through or ovr the railroad fence, evidence that the fence was insufficient and out of repair, and that the colts went over or through it, is sufficient to authorize a verdict for the m\ ANIMALS, INJURIES TO, 4551-455. %W plaiDtifl. Cochran v. Iowa C. /f. Co., (Iowa) 53 A'. W. Ref). 225. Proof that the pluintifT's cow was seen near tlie defendant company's railway track with one of its Irjjs br()ip. 68.— DlSTiNdUiSHiNO Chicago & N. W. R. Co. V. Barrie, 55 III. 227. QuoriNO Rock- ford, R. I. & St. L. R. Co. V. Connell, 67 III. 216. 453. Siiillclciicy of evidence to mIiow groHM iivKligcnce.* — Independent of the legal presumption, where cars were left on an inclined plane, where they could be easily set in motion, and were very inse- curely fastened, and one of the animals for the killing of which the suit was brought was killed a month previous to the other by a car which had escaped and run down the same grade, and the agents of the defendant, being thus apprised of the danger of such action, did not use proper precautions to prevent future injury — held, to be gross negligence for which the company was re- sponsible. Battle 71. Wilmington &• W. R. Co., 66 A^. Car. 343. The facts that the track was unfenced and that the train was running somewhat faster than usual at that place, and was not slacked nor any alarm given, would not have sus- tained a verdict that defendant was guilty of any wilful or malicious act, and a com- pulsory nonsuit was properly directed. Mc- Candlessv. Chicago &> N. IV. R. Co., 4$ f^"- 365, 19 Am. Ry. Rep. 374. In an action for the wilful or grossly neg- ligent killing of a mare which got upon the track in the night-time without the fault of the defendant, it appeared that the train which killed the mare was running from thirty to thirty-five miles an hour; that the engineer first saw some horses on or near the track and blew the whistle, whereupon they went in every direction ; that he con- tinued to sound the whistle until he got by *See ante, 50, 60. 187, 200, 206, 284, 343 ; post, 406 the horses and supposed the track was clear ; that after going some distance further he suddenly saw the marc running and stumbling on ihc track about i$o feet ahead of the engine ; that it was then too late, and he did not try to do anything, but struck the mare while going at full speed, and that, though it was a bright moonlight night, the engineer could not, from behind the head- light, see the track more than 150 feet ahead. Fhere was also evidence that the engineer kept on sounding the whistle until he had passed some distance beyond where he first saw the hors»»i, and that the mare had been running rapidly for some distance on the track before she was struck. Held, that the evidence was insufficinnt to suppor*. a verdict for the plaintiff. Jones v. Chicago, M. &* St. P. R. Co., 77 His. 585. 46 A'. IV. Rep. 884. 454. To nIiow that coinpniiy*N neg- ligence wiiH tile proximate cauHC.*— Proof that a train was backed, in the night-time, into an unlighted freight depot, without light or signal, and so noiselessly as to come suddenly upon one who was rightfully there with horses, giving no time for their removal, and killing the horses, is sufficient to support a finding that the company's carelessness was the sole cause of the loss. Hollender v. New York C. &* H. R. R. Co., 14 Daly {N. Y.) 219, 6 A'. Y. S. R. 352, 19 Abb. N. Cas. 18. Proof that live stock was found 50 to 60 yards from a railro M. R. Co., 34 Mo. App. 141.— Distin- guishing Gilbert V. Missouri Pac. R. Co., 23 Mo. App. 65. — Keltenbaugh v. St. Louis, A.Sf* T.R. Co., 34 Mo. App. 147. Direct evidence is not required to show that an animal killed got upon the track through a gap in the fence which it was the company's duty to maintain, nor is it neces- sary to show the collision of the cars with the animal by an eye-witness. Both these facts may be shown by circumstances. May field v. St. Louis &> S. F. R. Co., 91 Mo. 296, 3 5. W. Rep. 201. (2) Illustrations. — Testimony showing that plaintiff's cow was killed, and was found, w th her back broken, on the side of a railnad track at a point where there was a ditch filled with water on either side; that a meas- urement of the cow's tracks indicated that she had lun ahead of the train; and that there were indications where she had been struck by the train— //^/^/, sufficient to sus- tain the finding of a referee that the train killed the cow. Jacksonville, T. <3- fC. IV. R. Co. V. Garrison, 30 Fla. 557. 1 1 So. Rep. 929. Proof that stock was found by the side of a railroad track " badly smashed up," justifies a verdict that the injury was done by cars or locomotive of the company. Illinois C. R. Co. V. Whalen, 42 ///. 396.— Quoted in Ohio & M. R. Co. V. Atteberry, 43 111. App. 80. Evidence showing that a horse was well one day, and in a pasture near a railroad track, and the next morning was found dead by the side of the road, with a large scar on one side and otherwise bruised ; and that his tracks were found on the railroad, indicating that he had been running along the side of » See ante, 73-81, 135, 338; /^x/, 497. ANIMALS, INJURIES TO, 456. 395 (U. S.) the track and in attempting to cross had be«. . Jtruck and knocked off, justifies the inference that he had been struck and killed by the locomotive of a passing train. Louis- ville, N. A. &* C. R. Co. V. Hixon, loi Ind. 337. Testimony of a witness, that he heard a train whistle, saw cattle running away, went to the caitle-guard and saw an injured steer in it, is sufficient evidence that the animal was injured by the company's train. Baxter V. Chicago, R. I. &* P. R. Co., (Iowa) 54 A^. W. Rep. 350. Plaintiff's mare was found dead in her pasture near the defendant's right of way, at a place where defendant, though having the right to fence, had neglected so to do. Her right hind leg was broken above the hock and just below the stifle. No bruises were noticed, but sor.h: hair was off the leg and riglit flank. There were hoof-prints neai, upon the track. Tliere was also a ditch between the track and where the mare was found. Between the track and the ditch was some hair, and also nearer the ditch than the track was a hoof-mark. In the ditch also there was a hoof-mark, and two or three feet beyond it were indications that an animal had fallen there. From that point to where the mare was found was a broad trail, which appeared as though made by dragging her from that f^'cetothe place where siie was found, but tliece were no in- dications that she had struggled along that trail. One of defendant's trains had shortly before passed over the track. The jury found that the mare was killed, or caused to be killed, by defendant while running a train on its roaa. Held, that, considering ail the evidence and the circumstances attending the case, the court could not say that the evidence did not warrant the finding of the jury. Van Slyke v. Chicai!;o, St. P. &» K. C, R. Co., 80 /07va 620, 45 N. W. Rep. 396.— Distinguishing Asbach v. Chicago, B. & Q. R. Co., 74 Iowa 248 ; Rhines t. Chicago & N. W. R. Co., 75 Iowa 597; Brockert v. Central Iowa R. Co., 75 Iowa 529. In an action to recover the value of ii colt killed, the proof showed that on the morning before the colt was killed it was seen near the track, which was unfenced, a few hours before a train passed ; that on the following day it was found dead and buried some fifteen feet from the track ; that hair was found along the ends of the ties the same color as that of the colt, and that there were marks along the track, indicating that an animal had been dragged some distance which evidence was uncontradicted. Held, that a verdict in favor of the plaintiff would not be reversed and a new trial granted on the ground that there was not sufificient proof that the colt was killed in the opera- tion of the railroad. Central Branch U. P. R. Co. V. Pate, 21 Kan. 539. Where plaintiff's stock were seen upon the railroad track in the forenoon, and in the afternoon of the same day blood was seen upon the track, with the trace of it leading to the gap in the fence, and the animal was found dead not more than a quarter of a mile off, with a leg broken, it cannot be said that there is no evidence from which to find the fact that it was in- jured by the cars and died from the effects of that injury. May field v. St, Louis &• S, F. R. Co., 91 Mo. 296, 3 5. W. Rep. 201.— Applied in Harnedz*. Missouri Pac. R.Co., 51 Mo. A pp. 482. Where the action for killing stock is under Missouri Rev. St. § 809, the proof must show an actual collision of the cars or engine with the animals ; it is not enough to show that animals were four.d dead near the track, bruised and so marked as to indi- cate that they had been struck with great force while on the track, but there is no proof that the company at the time was operating the railroad, or that any train of cars had passed over the road at that point at any time. Gilbert v. Missouri Pac. R. Co., 23 Mo. App. 65.— Distinguished m Vaughan v. Kansas City, S. & M. R. Co., 34 Mo. App. 141 ; Keltenbaugh v. St. Louis, A. & T. R. Co. 34 Mo. App. 147. Where plaintiff's cattle were shown to be in his inclosiire one evening, and were found during the forenoon of the next day lying along a railroad track, one with a foot crushed and others gashed and cut, it may be fairly inferred that the injury was caused by the company's cars. McMillan v. Mani- toba &» N. IV. R. Co., 4 Man. 220. Where there is no direct evidence that a horse was struck or killed by a railway train, a verdict based on the fact that the horse's tracks were found on the railroad track jifter the horse had been found injured in the ditch where he had fallen from the bridge over a creek forty or fifty yards from the railroad track, will be set aside as not supported by the evidence. New Orleans a suit against a railroad company for killing stock showed that the stock was not killed within a corporation, nor near a crossing, the jury might infer that it was not killed within the limits of a town, city, or village. St. Lout's &• S. E. R. Co. V. Casner, 72 ///. 384. A verdict for plaintiff will not be upheld where he fails to show, by direct or circum- stantial proof, that the colt was killed on defendant's right of way, the engineer hav- ing testified that the colt was struck in the night-time, at a highway crossing, and was carried on the pilot of the engine to the point where it was found. ICtng v. Chicago, R. I. &^ P. R. Co., {Iowa) 54 A'. W. Rep. 204. Where it appeared from the evidence that the cattle were killed on plaintiff's farm, at a place where there was no highway or pub- lic crossing, this was sufficient to warrant *Seea«/• P. R. Co., 86 Mo. 492 ; affirmittg 23 Mo. App. 148. — Followed in Manuel v. Missouri Pac. R. Co., 19 Mo. App. 631. 405. To show knowledge of salt upon the track.* — Where it was shown that a solution of salt had been permitted to run down an embankment to a railroad track for more than a year, and that several cattle had been killed in the meantime, such evidence is sufficient to justify a finding that the company must have had knowledge of the fact, and that it was negligent in per- mitting it to remain. Morrow v. Hannibal 6- St. J. R. Co., 29 Mo. App. 432.— Followed IN Burger v. St. Louis, K. & N. W. R. Co., 52 Mo. App. 119. 466. To show unavoidabl acci- dent.f — To excuse a company from killing cattle on the ground that the killing was accidental, it is not enough to show that it was not intentional ; it must be shown to have occurred unavoidably and without the least fault on the part of the engineer. Banner v. South Carolina R. Co., 4 Rich. {So. Car.) 329. The uncontradicted testimony of the ser- vants of the railroad company showing that they did everything they could to pre- vent the killing of plaintiff's cow, but that It was impossible to stop the train in time, a recovery by the plaintiff was not war- ranted. Western &> A. R. Co. v. Trim- mier, 84 Ga. 112, 10 S. E. Rep. 503. Where the evidence fails to show that the engineer in charge of the train ever saw the cow sued for before the train struck her, or that after seeing her, if such was the fact, the train could have been stopped with safety before striking her, but, on the contrary, shows that the collision was almost simul- taneous with her getting on the track in an attempt to cross before the engine, there can be no recovery. Davis v. Wabash R. Co., 46 Mo. App. 477. * See ante. 40. f See ante, 61, 52 ;/cj/, 493, 615,660. ^ -> A \7 ' ' mm 300 ANIMALS, INJURIES TO, 466. ill ! Ml ■"A m «lti • iCi SI till WW t:iiil i Ml Where a beast on the railroarl woukl not be driven off from the track by a person trying to do so, and could not be scared off by the steam-whistle, the engineer striving with all his might to arrest the progress of the train before it reached it, but it was run over and killed — Ae/tf, that there was no negligence on the part of the company. Montgomery v. Wilmington &^ IV. K. Co., 6 Jones {N. Car.) 464.— FOLLOWED IN Win- ston V. Raleigh & G. R. Co., 19 Am. & Eng. R. Cas. 516, 90 N. Car. 66. A company is not liable for killing stock on a foggy night when within thirty yards of the engine when first seen, where the evidence shows that the train was carrying a headlight, that the whistle was blown after the stock were seen, and that the speed of the train was reduced from fifteen miles an hour to seven and a half. Raiford v. Mis- sissippi C. R. Co., 43 Miss. 233. In an action for killing cattle, where the evidence shows that the animal ran 150 yards down the track before reaching the trestle, and the engineer testified that he only saw the animal when within forty or fifty yards, and that he could not have seen it earlier under the conditions then existing, and there is no evidence introduced to dis- credit the engineer's statement, a verdict for the plaintiff is not supported by the evi- dence. Kansas City, M. St. P. A\ Co.. 13 Am. »S- E>tg^. R. Cas. 534, 60 Iowa 512, 15 N. fV. Rep. 303. — Quoting Comstock v. Des Moines Valley R. Co., 32 Iowa, 376. Where ihe township must be proved in which an injury occurred, the jury are not at liberty to infer that the locality of the injury, not shown to be in such township, was a place in said township. Harris v. St. Louis, I. M. C. R. Co., 35 Am. &* Eng. R. Cas. 141, 116 Ind. 42, 15 West. Rep. 547, 18 A^. E. Rep. 179, i L. R. A. 448.— Distinguishing Chicago & E. I. R. Co. v. Hedges, 105 Ind. 398. 479. Presumption as to existence of similar stock-killing laws in two states. — In an action in Colorado for stock killed in ■ New Mexico, a Colorado statute concerning the liability of railroads for stock killed does not apply ; and in the absence of proof of a New Mexico statute, the existence of such a law there will not be presumed. But if the stock were killed by the gross negligence of the company it is liable under common-law principles without regard to the statutes of New Mexico. Atchison, T. &*S.F. R. Co. v. Betts, 31 Am. «S- £■«;'• ^. Cas. 563, 10 Colo. 431, 15 Pac. Rep. 821. * See ante, 114-121. fSee ante, 339. 480. Presumption of negligence arising f!rom mere proof of killing.* — (i) At common law. — At common law proof of injury to, or killing of, stock on the track raises no presumption of negli- gence. Such presumption exists only under the statutes. Etuly v. Lafayette, 49 Fed. Rep. 798, 4 U. S. App. 243. I C. C. A. 432.— Followed in Eddy v. Dulaney, 49 Fed. Rep. 800, 4U. S. App. 246, I C. C. A. 435. Where the cattle-owner pursues the com- mon-law remedy instead of his statutory remedy, mere proof of killing or injury by the company does not raise a presumption of negligence. Denver &^ R. G. R. Co. v. Henderson, 31 Am. &* Eng. R. Cas. 559, 10 Colo. I, 13 Pac. Rep.<)\o. Atchison, T. &- S. F. R. Co. V. Walton, 3 N. Mex. ^ig, 9 Pac. Rep. 351. Indianapolis &^ C. R. Co. v. Means, 14 Ind. 30. — Approved in Atchison, T. & S. F. R. Co. V. Walton, 3 N. Mex. 319.— Mobile (S- O. R. Co. v. Hudson, 50 Miss. 572. In an action by an owner of live stock for killing or injuring the stock by its train, proof of the killing or injury is not of itself prima facie evidence of negligence upon the part of the company or its agents. To make out a prima facie case of negligence there must at least be evidence of circum- stances from which a presumption arises that the stock would not have been run upon by the train but for want of care on the part of those operating it. Savannah, F. iS* W. R. Co. V. Geiger, 29 Am. &* Eng. R. Cas. 274, 21 Fla. 669, 58 Am. Rep. 697. Where no duty is imposed on the com- pany to fence in its track, mere proof of killing or injury does not raise a presump- tion of negligence. Illinois C. R. Co. v. Reedy, 17 ///. 580. Schneir v. Chicago, R. I. &* P. R. Co., 40 Iowa 337. — Approved in Atchison, T. & S. F. R. Co. v. Walton, 3 N. Mex. 319. (2) The South Carolina rule. — Where a company is sued for killing cattle, proof by plaint ifl that his cattle were killed by a passenger train belonging to the com- pany while pasturing on his own land, and of the value of the cattle, makes out a prima facie case which will entitle him to recover, unless the company rebuts the pre- sumption of negligence by proof of the par- ticular circumstances or manner of the kill- ing. Danner v. South Carolina R. Co., 4 * See ante, 6, 29-33, 126, 359, 448. Killing of stock by train raises a presump- tion of negligence, see note, i. L. R. A. 448. '* A I"* 1 304 ANIMALS, INJURIES TO, 480. 1 SViiii :^ I Rich. (So. Car.) 329.— Applied IN Joy nerw. South Carolina R. Co., 29 Am. & Eng. R. Cas. 258, 26 Su. Car. 49, i S. E. Rep. 52. Approved in Gorman v. Pacific R. Co., 26 Mo. 441 ; Walker ?/, Columbia & G. R. Co., 25 So. Car. 141 ; Bcliije v. Houston & C. T. R. Co., 26 Tex. 604. Disapproved IN Savannah, F. & W. R. Co. v. Geiger, 29 Am. & Eng. R. Cas. 274, 21 Fla.669, 58 Am. Rep. 697. Distinguished in Wilson v. Wilmington & M. R. Co.. 10 Rich. (So. Car.) 52. Explained in Jones v. Columbia & G. U. Co., 19 Am. & Eng. R. Cas. 459, 20 So. Car. 249 ; Zeigler v. Northeastern R. Co., 5 So. Car. 221. Followed in Roof v. Charlotte, C. & A. R. Co., 4 So. Car. 61 ; Galpin v. Chicago & N. W. R. Co., 19 Wis. 604. Reviewed hut not followed in Atchison, T. & S. F. R. Co. v. Walton, 3 N. Mex. 319. Reviewed in Northeastern R. Co. V. Sineath. 8 Rich. (So. Car.) 185 ; Fuller V. Port Royal & A. R. Co., 24 So. Car. 132. Proof of ownership cf stock by plaintiff, and of the killing by defendant, makes out ii. prima facie case, and where the company produces no evidence in defense a nonsuit should be denied. Joyner v. South Carolina R. Co., 29 Am. Sf Eng. R. Cas. 258, 26 So. Car. 49, 1 S. E. Rep. 52. Roof v. Charlotte, C. &- A. R. Co., 4 So. Car. 61.— APPLYING Murray v. South Carolina R. Co., 10 Rich. (So. Car.) 227 ; Wilson v. Wilmington & M. R. Co., lo Rich. (So. Car.) 52. Follow- ing Danner v. South Carolina R. Co., 4 Rich. (So. Car.) 329. Reviewing New York & E. R. Co. v. Skinner, 19 Pa. St. 298. Compare Nashville &* C. R. Co. v. Fugett, 3 Coldw. ( Tenn^ 402. And this presumption of negligence is not confined to cases where the company introduces no testimony whatever, but con- tinues until rebutted by affirmative evidence that the company exercised due care, or that the accident was unavoidable. Joyner V. South Carolina R. Co., 29 Am. &• Eng. R. Cas. 258, 26 So. Car. 49, i S. E. Rep. 52.— Applying Danner t/. South Carolina R. Co., 4 Rich. (So. Car.) 330. Quoting Zemp v. Wilmington & M. R. Co., 9 Rich. (So. Car.) 84 ; Jones v. Columbia & G. R. Co., 20 So. Car. 258; Fuller v. Port Royal & A. R.Co., 24 So Car. 132. This rule in Danner's Case, that proof of killing stock raises a presumption of neg- ligence and, unexplained, entitles the owner to recover, is not changed by the subse- quent South Carolina laws requiring stock to be inclosed. Simkins v. Columbia fi- G. R. Co., 19 Am. (S- Eng. R, Cas. i^dy, 20 So. Car. 258.— Applied in Harlcy v. Eutaw- ville R. Co., 31 So. Car. 151. Followed in Joyner v. South Carolina R. Co., 29 Am. & Eng. R. Cas. 258, 26 So. Car. 49, i S. E. Rep. 52. Quoted in Molair v. Port Royal & A. R. Co., 29 So. Car. 1 52, 7 S. E. Rep. to.— Jones V. Columbia 6- 6". R. Co., 19 Am, «S- Eng. R. Cas. 459, 20 So. Car, 249.— Ex- plaining Danner v. South Carolina R. Co., 4 Rich. (So. Car.) 329.— Applied in Harlcy V. Eutawviile R. Co., 31 So. Car. 151. Quoted and followed in Joyner 7>. South Carolina R. Co., 29 Am. & Eng. R. Cas. 258, 26 So. Car. 49, I S. E. Rep. 52. (3) Alabama statute.— Prool that stock were injured by a passing train makes out a prima facie case under the Alabama stat- utes, and casts the burden on the company to show that there was no negligence, or that the statute had been complied with. East J'enn., V. &> G. R. Co. v. Bayliss, 19 Am. Ft. S. R. Co. v. Finley, 1 1 Am. Etig. K. Cas. 446, 42 Arl: 1 22. But this presumption may be repelled by proof of due diligence. St. Louis &* S. F. R. Co. V. Basham, 47 Ark. 32 1, \ S. IV. Rep. 555.— Following Little Rock & Ft. S. R. Co. V. Turner, 41 Ark. 161. k prima fiicic case of negligence is made under the Arkansas statute by proving the killing, and that the animals were attracted by cotton-seed which was allowed to ac- cumulate upon the track.* Little Rock &* Ft. a. R. Co. V. Dick, 42 Am. 6- Eng. R. Cas. 591, 52 Ark. 402, 12 5. IF. Rep. 785. (5) Florida statute. — Under the act of 1887, chapter 3740, laws of Florida, the kill- ing of live stock by a railway engine, cars, or train \^ prima facie evidence of negligence on the part of the company operating the engine or train, and where the testimony shows that live stock were killed by a train of cars on a n.i'.road, and there is nothing in the evidence to relieve the killing from the statutory presumption tliat it was neg- ligently done, it is sufficient to sustain a- judgment against the company. Jackson- ville, T. Eng. R. Cas. 448, 68 Iowa 530, 23 N. IV. Rep. 245, 27 N. W. Rep. 605. (9) Kentucky statute. — Under the Kentucky statute the killing of live stock raises the presumption of negligence against the rail- road company whose train causes the in- jury. Louisville &* N. R. Co. v. Simmons, 85 A>. 151, 3 S'. W. Rep. 10. (10) Maryland statute. — Upon proof of injury to the stock of the plaintiff by a rail- road company, a prima facie case is made, and the plaintiff is entitled under the statute (Art. 77,% I, o* the Maryland Code) to re- cover, unless the defendant can prove, to the satisfaction of the jury, " that the injury complained of was committed without any negligence on the part of the company or its agents." Western Md. R, Co, v. Carter, 13 Am. &* Eng. R. Cas. 573, 59 Md. 306. 306 ANIMALS, INJURIES TO, 481. ■>i;at Keech v. Baltimore A* W. R. Co.. 17 Md. 3a.— Approvki) in State v. Baltimore & O. R. Co., 24 M(l. %»,.— Northern C. A'. Co. v. lVarr//;/a /aw evidence of negligence on the part of the railroad cor- poration running the train causing the mis- chief (New Hampshire Comp. St. 350). Smith v. Eastern R. C<>., 35 N. H. 356.— RE- VIEWING Ellis V. Portsmouth & R. R. Co., 2 Ired, (N. Car.) 138; Suydam v. Moore, 8 Barb. (N. Y.) 358 ; Danner v. South Carolina R. Co.^ 4 Rich. (So. Car.) 329. (14) North Carolina statute. — Where it was proven or admitted that cattle had been killed by the train within six motths before the action was brought, there is a presumption that the killing was caused by the negligence of such company, and this presumption arises from the fact of killing (imder | 2326 of the North Carolina Code), where the animal is hitched to a wagon or cart, as well as where it is straying at large when killed. Randall v. Richmond &* D. R. Co., 45 Atn. &* Eng. R. Cas. 507, 107 N. Car. 748, 12 S. E. Rep. 605. Where an action for killing plaintiflf's mule is brought within six months after the accident, the fact of such killing (nothing further appearing) is prima facie evidence of defendant's negligence; and the burden of repelling the presumption is upon the company. Wilson v. Norfolk Sf S.R. Co., 19 Am. &* F-ng- A*. CVu. 453, 90 A'. Cflr. 69. —Distinguished in Snowden v. Norfolk S. K. Co., 95 N. Car. 93, Quoted in Rigler V. Charlotte, C. & A. R. Co., 26 Am. & Eng. R, Cas. 386, 94 N. Car. 604. The North Carolina act of 1857 (Bat. Rev. ch. 16, ^ 1 1), which makes the act of killing stock by the engines or cars of a railroad company prima facie evidence of negli- gence, applies only when the facts attending the killing are unknown and uncertain ; but when those facts are fully disclosed in evi- dence, and it is shown that the defendant company adopted every precaution in its power to avert the injury, the court should instruct the jury that the defendant is not chargeable with negligence. Durham v. Wilmington 6- W. R. Co., 82 A'. Car. 352. —Quoting Proctor v. Wilmington & W. R. Co., 72 N. Car. 579. — Approved in Volkman v. Chicago, St. P.,M. &0. R. Co., 35 Am. & Eng. R. Cas. 204, 5 Dak. 69, 37 N. W. Rep. 731. Explained in Aycock v. Raleigh & A. A. L. R. Co., 89 N. Car. 321. 481. Prcsiiiiiptiuii upon proof of prohibited rate of speert.*— -The run- ning of a train through a city, village, or town at a greater rate of speed than that allowed by the city ordinance raises a pre- sumption of negligence against the com- pany, Toledo, P. &* W. R. Co. v. Deacon, 63 ///. 91, 7 Am. Ry. Rep. 150. Cleveland, C, C. &' St. L. R. Co. V. Ahrens, 42 ///. App. 434. Chicago &* N. W. R. Co. v. Carpenter, 45 ///. App. 294. A jury may presume negligence on the part of a railroad where stock is killed in an incorporated town by a train running at a greater rate of speed than al- lowed by an ordinance. Chicago, B. &* Q. R. Co. V. Haggerty, 67 ///. 113. But the mere fact that the train was • See ante. 71,211, 345, 400, 457. 1. ■•;,:j^ ANIMALS, INJURlliS TO, 4H2-4H7. ao7 moving at a speed greater than was cum- toniary, though not in excess uf the speed allowed by statute and the rules of the company, is not evidence of negligence. Louisville lir* A'. A'. Co. v. Afarriott (A>.), 19 A1H.&' Eiig. N. Cos. 509.— Distinguishing Ml- Lend v. Olntijcr, 80 Ky.408. 4H2. Pn^Hiiiiiiitioii of HfroNH iu'i;ll- fj«'ii««.*— Proof that a train was moving at a usual speed when a horse was seen on tlie track, and that the speed of the train was not slackened, is not suflicient to raise a presumption of wanton mismanagement of the train. /Mrlinj; v. Boston y eircuniHtantial evidence.'*'— Proof of marks of an animal on the track and of the position of a dead body near the track, indi- cating that the animal had been killed by a train, is sufficient to meet the requirements of the Mississippi Code 1880, ^ 1059, making proof of an injury to stock prima facie evi- dence of negligence. Chicago, St. L. &* N. O. R. Co. V. Pachwood, 7 Am, &* Eng. R. Cas. 584, 59 Miss. 280. The facts that the crossing of a highway is out of repair and that a horse is injured thereon raise the presumption of negligence against the company. France v. Erie R. Co., 2 Hun (N. Y.) 513. 5 T M. R. Co., 43 Mo. App. 294. — Following Kinion v. Kansas City, Ft. S. & M. R, Co., 39 Mo. App. 382 ; Waltherz/. Pacirtc R. Co., 55 Mo. 271. A prima facie case is made out, under Missouri Rev. St., § 2124, by proof that the animal got upon the track and was injured where the track was not inclosed. Radcliffe v. St. Louis, I. M. &• S. R. Co., 90 Mo. 127, 2 5. IV. Rep. 277. In an action brought under § 43 of the Missouri act, touching railroad corporations for killing of stock (Wagn. Stat. 310-31 1), wherever it ib shown that stock have been killed on the track where it is the duty of the company to fence in the road, and the company has failed to fence in the manner required by law, a prima facie case is made for plaintiff. It is not requisite that the plaintiff should show further by affirmative evidence that the stock were caused to go upon the road by the failure of the com- pany to fence it. Walther v. Pacific R. Co., 55 /_ 271. — Following Fickle v. St. Louis, X. C. & N. R. Co., 54 Mo. 219. Not FOLLOWING Cecil V. Pacific R. Co., 47 Mo., 246. — Followed in Kinion v. Kansas City, Ft. S. & M. R. Co., 39 Mo. App. 382. Wood V. Kansas City, Ft. S. & M. R, Co., 43 Mo. App. 294. Quoted in Walton v. Wabash W. R. Co., 32 Mo. App. 634. In an action under § 43, page 311, of Wagner's Statutes, for damages to stock, where it is shown that plaintiff's stock have been killed at a point where it is the duty of the corporation to fence, and where it has not been fenced, a prima facie case is made for the plaintiff ; but where plaintiff's testimony further shows that the defect in the fence, for which the corporation was responsible, had nothing whatever to do with the killing of the stock, the corpora- tion is not liable. Higginbottom v. St. Louis, K. C. &• ^'. R. Co., 4 Afo. App. 596. In an action for double damages for kill- ing stock, proof that the animal was killed at a point a quarter of a mile from the de- pot, beyond the switch limits, where the road was fenced on one side but not on the other, is, prima facie, sufficient to show that the killing did not occur within the limits of an incorporated town or at a public crossing. Lepp v. St. Louis, I. M. &' S. R. Co., 29 Am. &^ Eng. R. Cas. 242, 87 Afo. 139. — Followed in Johnson v. Chicago, B. & K. C. R. Co., 27 Mo. App. 379. When it is shown in evidence that cattle were killed by a company where their track passed through uninclosed prairie-land, where the track was not fenced, and where there was no road crossing, the law pre- sumes negligence on the part of the com- pany. Lantz V. St. Louis, K. C. &• A\ /J. Co., 54 Mo. 228.— Followed in Kinion v. Kansas City, Ft. S. & M. R. Co., 39 Mo. App. 382. If a person's cattle are killed on a railroad track, where the track passes through his inclosed field, at a point which was not a public crossing and where there was no fence, the presumption is, unless the cir- cumstances of the case rebut it, that the cattle strayed on the track on account of the absence of the fence. Fickle v. St. Louis, K. C. &* N. R. Co., l\ Mo. 219, 12 Am. Ry. Rep. 376.— Following Aubuchon V. St. Louis & I. M. R. Co., 52 Mo. 522. Not following Cecil v. Pacific R. Co., 47 Mo. 246. — Followed in Gilmore v. St. Louis, K. C. & N. R. Co., 54 Mo. 227 ; Walther v. Pacific R. Co., 55 Mo. 271 ; Sparr v. St. Louis, K. C. & N. R. Co., 57 Mo. 152. Quoted in Walton v. Wabash W. R. Co., 32 Mo. App. 634. Where an un fenced railroad passes through a farm where live stock are run- ning, which stray upon the track and are killed by the train, these facts make a prima facie case against the railroad company. Johnson v. Baltimore&r* O. R. Co., 25 W. Va. 570. — Following McCoy 7/. California Pac. R. Co., 40 Cal. 532; Huyett v. Philadelphia & R. R. Co., 23 Pa. St. 373. Proof that the killing occurred within the station grounds will not raise a pre- sumption of negligence. Plaster \. Illinois C. R. Co., 35 Iowa 449, 5 Am. Ry. Rep. 528. 488. Showing; defective fence or gate."' — In an action under the Missouri »See ante, 10.'i-ll», 304 ; /w/, fiOO. ANIMALS, INJURIES TO, 480-4»2. 309 double damage act, proof that plaintiff's mule was injured on the track by reason of passing from his adjoining field over a fence which the company was bound to maintain, but which was not such as the law requires, makes out a prima facie case, and a demui - rer to such evidence is properly overruled. Williams v. Missouri Pac. R. Co., 74 Mo. 453. — Followed in Campbell v. Missouri Pac. R. Co., 78 Mo. 639. In an action ^or killing stock under the Missouri doubi^ damage act, evidence by plaintiff as to the defective condition of the company's fence, and proof of such circum- stances as would raise an inference that the cattle entered the track at such place, make out a prima facie case justifying its sub- mission to the jury. Walihers v. Missouri Pac. R. Ct?., 19 Am. &* Eng. R. Cas. 662, 78 Mo. 617. — Followed in Marrett v. Hanni- bal & St. J. R. Co., 84 Mo. 413. Proof that a farm-crossing gate was con- structed defectively and was out of repair will not raise the presumption that an ani- mal was injured by reason of such defects. Johnson v. Chicago, R. I. «a/a«> case of negligence established by proof that the animal was killed by a moving train is not overcome by proof that the engineer only exercised due diligence. Little Rock &- M. R. Co. v. Chriscoe, 57 Ark. 192, 21 S. W. Rep. 431. The statutory presumption of negligence from a killing of stock on defendant's track is not rebutted where defendant's engineer testified that the killing was unavoidable, if his testimony was improbable or inconsist- ent. St. Louis, I. M. M. R. Co. v. Summers, 45 Ark. 295. Where it appears that an animal is killed by a locomotive and no whistle was sounded, in order to rebut the presumption of negli- gence, under Georgia Code, § 3033, the com- pany must show that its agents exercised " all ordinary and reasonnble care and dili- gence," and merely showing that an animal was killed at a curve, and was hobbled, is not sufficient. Georgia R. Co. v. Fisk, 65 Ga, 714. The statutory presumption of negligence for killing live stock, when the action is brought within six months (North Carolina Code, § 2326), is not rebutted by showing that the live stock were under the control of a person at the time. Randall v. Rich- mond &> D. R. Co., 42 Am. S- Eng. R. Cas. 603, 104 N. Car. 410, \o S. E. Rep. 691. The prima facie evidence of negligence on the part of a company in a suit for dam- ages for killing stock is not impaired by a local act requiring stock to be fenced in, but the defendant must repel the presumption by satisfactory proof to the jury. Roberts v. Richmond &» D. R. Co., 20 Am. &» Eng. R. Cas. 473, 88 A^. Car. 560. It is enacted by the North Carolina act of 1856-57, ch. 7, "that when any cattle or other live stock shall be killed or injured by the engines or cars running upon any rail- road, it shall be prima facie evidence of neg- ligence ; " this rule can only be rebutted by showing that the agents of such railroad company used all proper precautions to guard against damage. It is not sufficient to prove that there was probably no negli- gence. Battle V. Wilmington (S» W. R. Co., 66 N. Car. 343.— Reviewed in Doggett v. Richmond & D. R. Co., 81 N, Car. 459; ^u- lars V. Richmond & D. R. Co., 25 Am, & Eng. R. Cas. 451, 94 N. Car. 654. The prima facie case under such act is not rebutted where the testimony of the plain- tiff showed that his horse had been injured on the defendant's road by the running of a train against it, and the evidence on the part of the defense left it doubtful whether the brakes had been applied after the animal was discovered to be on the track. Clark V. Western N. C.R. Co., i Winst. {N. Car.) 109. — Reviewed in Doggett v. Richmond & D. R. Co., 81 N. Car. 459. d. Burden of Proof.* 495. On ^>Iaiutiff' to show defend- ant's negligence, generally.! — The burden of proof in a suit in damages for the killing of animals by a railway company rests on the plaintiff to show negligence. Day V. New Orleans Pac. R. Co. , 36 La. Ann. 244. Waldron v. Portland, S. &• P. R. Co. , 35 Me. 422. — Reviewing Quimby v. Vermont C. R Co., 23 Vt. 393. — Bethje v. Houston Sf'C. T. R. Co., 26 Tex. 604.— Approving Danner v. South Carolina R. Co., 4 Rich. (So. Car.) 329. Where plaintiff sues for stock killed, the burden is on him to show negligence, or such facts as create a liability under the statute. Calvert v. Hannibal &• St./. R. Co., 34 Mo. 242.— Followed in Calvert z/. Han- nibal & St. J. R. Co., 38 Mo. 467. Quoted IN Hill V. Missouri Pac. R. Co., 49 Mo. App. 520. Reviewed in Iba v. Hannibal & St. ). R. Co., 45 Mo. 469. Mere proof of killing stock does not raise a presumption of negligence, so as to make the company liable, but the burden of * See ante, 285, 286. f Burden of proof, where it is claimed that statutory signals were not given to prevent in- juries to stock because such would have been unavailing, see note, 21 L. R. A. 724. 3l;i ANIMALS, INJURIES TO, 405. showing negligence is on the plaintiff. Illi- nois C. R. Co. V. Jieedy, 17 ///. 580.— Quoted IN Galena & C. U. R. Co. v. Jacobs, 20 111. 478. Distinguished in Toledo, W. & W. R. Co. V. Furgusson, 42 111. 449; Illinois C. R. Co. V. Phillips, 55 111. 194. Overruled IN Illinois C. R. Co. v. Middlesworth, 46 111. 494. — Mobile &* O. Ji. Co. v. Hudson, 50 Miss. 572. Schneir v. Chicago, R. I. &* P. R. Co., 40 Iowa 337. — Approved in Atchison, T. & S. F. R. Co. v. Walton, 3 N. Mex. 319. In an action to recover for stock killed or injured, the burden is on plaintiff to show either negligence on the part of the com- pany, or that it was its duty to fence at the place of the accident, which it had failed to do. Comstock v. Des Moines Valley R. Co., 32 Iowa 376, 10 Ant. Ry. Rep. 23. — FOL- LOWED IN Kyser v. Kansas City, St. J. & C. B. R. Co., 56 Iowa 207. Quoted in Smith V. Chicago, M. & St. P. R. Co., 13 Am. & Eng. R. Cas., 534, 60 Iowa 512. Proof of killing cattle on station grounds does not raise a presumption of negligence, and the burden of proving it is upon the plaintiff, when such proof is necessary to entitle him to recover. Plaster v. Illinois C. R. Co., 35 Iowa 449, s Am. Ry. Rep. 528. Proof that an animal was killed on the track raises no presumption of negligence in a common-law action for damages, but the burden of proving negligence is on plaintiff. Atchison, T. Of S. F. R. Co. v. Walton, 3 N. Mex. 319, 9 Pac. Rep. 351. — Reviewing New Jersey R. & T. Co. v. Pollard, 22 Wall. (U. S.) 341 ; Stokes v. Saltonstall, 13 Pet. (U. S.) 181 ; Danner v. South Carolina R. Co., 4 Rich. (So. Car.) 329. Quoting McCoy v. California Pac. R. Co., 40 Cal. 532. Approving Lyndsay v. Connecticut & P. R. R. Co., 27 Vt. 643; Chicago & M. R. Co. v. Patchin, 16 111. 198; Great Western R. Co. v. Morthland, 30 III. 451 ; Schneir v. Chicago, R. I. & P. R. Co., 40 Iowa 337; Indianapolis & C. R. Co. v. Means, 14 Ind. 30; New Orleans, J. &G. N. R. Co. V. Enochs, 42 Miss. 603 ; Mobile & O. R. Co. 7>. Hudson, 50 Miss. 572 ; Grand Rapids & I. R. Co. v. Judson, 34 Mich. 507 ; Brown v. Hannibal & St. J. R. Co., 33 Mo. 309 ; Scott V. Wilmington & R. R. Co., 4 Jones (N. Car.) 432 ; Walsh v. Virginia 4 T. R. Co., 8 Nev. in; Flattes v. Chicago, R. I. & P. R. Co., 35 Iowa 191 ; Kentucky R. Co. V. Talbot, 78 Ky. 621 ; Whittier v. Chicago,. M. & St. P. R. Co., 26 Minn. 484; Little Rock & Ft. S. R. Co. V. Henson, 39 Ark. 413 ; Little Rock & Ft. S. R. Co. v. Holland, 40 Ark. 336. The burden of showing negligence in the manner of running and operating a train is upon plaintiff. Pittsburgh, C. Sf St. L. R. Co. V. Heiskell, 13 Am. &* Eng. R. Cas. 555, 38 Ohio St. 666. In an action to recover damages for kill- ing live stock, the plaintiff must prove affirnrntively that want of ordinary care on the part of the company or its employes caused the injury. Such inference does not arise from the mere fact that the animal was killed ; and evidence showing that a horse escaped from pasture during the night and galloped upon a railroad track for about forty rods, where it was killed by the engine, is not sufficient to fix lia- bility upon the company. Pittsburgh, C.&* St. L. R. Co. V. McMillan, 7 Am. 04. 313 burden on the company to show that tlic track was fenced. Texas &> P. /i'. Co. v. Miller, i Tex. App. (Civ. Cas.) 104. By the common law, in order to main- tain an action against a company for in- jury to stock, it was incumbent on the plaintifl to prove that the damage resulted from the fault or negligence of the defend- ant or its agents; this has been clianged by the Maryland statute, which casts the onus of proof on tlie defendant. Keech v. Baltimore &* IV. R. Co., 17 Md. 32.— Apply- ing Baltimore & O. R. Co. 7/. Lamborn, 12 Md 257. 490. To show gross or wilful neg- ligence. — If the railway has erected and maintained sufficient fences and cattle- guards, and stock are killed '^r injured, the burden of proof is upon tlie owner to show that the injury resulted from the negligence or wilful act of the servants of the company. But if it has failed to comply with the stat- ute, the owner has only to show the injury and the omission. Galena &• C. If. H. Co. V. Crarvford, 25 ///. 529. 497. To show that killing was clone hy company's traiiN*— Where suit is brought to recover 01 a company for cattle found dead along the track, it is incumbent on plaintiff to show that they were killed by trains, but this may be done by circumstantial evidence.t Gulf, C, &* S. F. /?. Co. V. Washington, 49 Fed. Rep. 347. 4 U. S. App. 121. I CCA. 286. 498. To show company's negli- gence after discovering animal.|— The onus is on plaintifl to show want of such care after the cow was discovered by those in charge of the train. Locke v. First Div. St. P. &* P. R. Co., 15 Minn. 350 {Gill. 283). A company is not liable for an injury to a horse which becomes frightened and runs into a trestle, unless it appears that there was negligence after the dangerous condition of the animal 'vas discovered, the burden to prove which 'a on the plaintiff. Illinois C R. Q> V. V/eathersby, 63 Miss. 581. 499. To show killing within con ity where suit is brought.— The burden of proving that the killing was done within the county where suit is brought, is upon plaintiff. Indianapolis » C. R. Co. v. Renner, 17 Ind. 135. — Criticised in Indian- * Burden of proving that a train killed animals, see 56 Am. & Eng. R. Cas. 142, abstr. fSee atite, 405, 452. 486. I See ante, 49-52, 63, 64, 115. apolis & M. R. Co. 7>. Solomon, 23 Ind. 534- 500. To show company's failure to post statutory notice of injury. — Where a plaintiff claims double damages under the Arkansas statutes, on the ground that the company failed to post notice of the injury as required by statute, the burden is on him to prove such failure. Kansas City, S. &* M, R. R. Co. v. Summers, 45 Ark. 295. 501. To show ownership of animal.* — It is incumbent on one suing for damages for injury to stock to establish his ownership of the stock before he is entitled to recover. Welsh V. Chicago, B. €f Q. R. Co. 53 Iowa 632, 6 N. W. Rep. 13, 21 Am. Ry. Rep. 181. 502. To .show violation of ordi- nance as to speed. — In an action to re- cover the value of a horse killed on defend- ant's track, plaintiff alleged a violation of an ordinance which prohibited the running of trains, where the accident occurred, at a greater rate of speed than six miles an hour. Held, the burden of proving this averment was upon plaintiff, and the mere proof that the animal was killed on defendant's track within such portion of the town did not raise the presumption that the train was running at the prohibited rate of speed. Chicago io-r>i:t. :n5 plaiiitill. Perry v. Diii'iK/iir S. A'. Co., 2,6 Ia I02. 510. Where suit is nut broiif^ht within Mix months after injury.*— Where a company is sued for damages by its train to stock after six months from the time of the injury, not only is the burden of provinjj negligence on tiie plaintiff, but he must show facts inconsistent with the proba- bility of care : e.g., that the whistle was not blown. Jones v. North Carolina R. Co., 67 N. Car. 122. 511. When action is brought with- in six inontiis after opening of road. — Where stock were killed by the engine of a railroad, and the road was not open for use six months prior to the killing, it was incumbent on the owner to show negligence ont'ii; part of the company before a recovery could be had. Rock/or d. A'. /. &> Si. L. R. Co.v. Connell, 67 ///. 2 r6.— Quoting Chi- cago & N. W. R. Co. 7'. Barrie. 55 111. 226.— Quoted in Peoria, D. & E. R. Co. v. Aten, 43 111. A pp. 68. 512. Upon defendant, generally.— Under statutory provisions now in force (Alabama Code, § 1147; Sess. Acts 1886-7, p. 146, in footnote to said section) the bunien of disproving negligence is not on the railroad company, when the action is brought to recover damages for killing or injuring a cow, and it appears that the in- jury was caused by a freight car which, having been left standing on a side-track with its wheels scotched, broke loose and ran down on the cow. Montgomery &* E. R. Co. \. Ferryman, 91 Ala. 413. 8 So. Rep. 699. 513. To rebut statutory presump- tion of negligence, generally.— Proof that stock were injured by a running train establishes sl prima facte CAse oi negligence, and casts the burden on the company to overthrow this by proof of proper diligence. Alabama G. S. R. Co. v. Mc Alpine, 22 Am. (Sm Eng. R. Cas. 602, 75 Ala. 113. — Disap- I'ROVKU IN Georgia Pac R. Co. 7'. Hughes, 39 Am. & Eng. R. Cas. 674, 87 Ala. 610, 6 So. Rep. 413. — Birmingham Mineral R. Co. V. Harris, 98 Ala. 326.— Following South iS: N Ala. R. Co. v. Bees, 82 Ala. 340. OvKRRULiNGGeorgiaPac. R. Co.v. Hughes, 87 Ala. 610; Montgomery & E. R. Co. z/. Perryman, 91 Ala. 413. It being shown that the animal, for the negligent killing of which the action was * See ante, 123-125, 358, 467. brought, was on the railroad track when it was struck and killed (Alabama Code. § 1 147), the onus is on the defendant to acquit itself of the charge of negligence. Louis- ville (S» N. R. Co. V. Kelscy, 42 Am. «S- Eng. R. Cas. 584, 89 Ala. 287, 7 So. Rep. 648. In an action for tlie killing of plaintiff's sheep by the defendant's train, the burden of negativing negligence is upon the de- fenflant. Louisville iS^ A'. R. Co. v. Barker, 96 Ala. 435, 1 1 So. Rep. 453.— Applying Georgia Pac. R. Co. v. Hughes, 87 Ala. 610 ; Alabama G. S. R. Co. v. Moody, 90 .Ala. 46; Alabama G. S. R. Co. v. Moody, 92 Ala. 279. Distingulshing Montgomery & E. R. Co. v. Perryman, 91 Ala. 413. The presumption of negligence is against the railroad company, and the burden of proof upon it to show the contrary, even where the animal killed was in a pasture in- closed on both sides of the railroad. Wool- folk V. Macon &> A. R. Co.. 56 Ga. 457. — Following Macon & A. R. Co. v. Vaughn, 48 Ga. 464. Where it was proved that a row was killed by a train, this imposed on the company the burden of showing that it was in the exer- cise of all ordinarj' and reasonable care and diligence, or that the damage was caused solely by the negligence of the owner of the cow, or, to diminish damages, that both were at fault. Negligence is a question for the jury, and the issues thus presented neces- sarily depend upon facts. Therefore, where the plaintiff obtained a verdict on the appeal trial in a justice's court, and the defendant carried the case to the superior court by certiorari, if the judge sustained the cer- tiorari, it was proper to order a new trial and not to finally dispose of the case. Georgia R. Co. v. Bird, 76 Ga. 13. The burden of proof under the Illinois statute is upon the company to disprove negligence upon its part where the evidence shows that the stock were killed within the limits of a city, town, or village, while the train was running at a rate of speed pro- hibited by the city ordinance. Toledo, P. » W. R. Co. V. Deacon, 63 ///. i)i,7 Am. Ry. Rep. 150. In an action under § i, of article 77, of the Maryland Code, negligence is imputed to the railroad company, and the burden of proof is on the company to negative this imputa- tion, and to establish affirmatively that the injury complained of resulted from a dis- aster which could have been avoided by the s'\-A »:! 31(5 ANIMALS, INJUKlhS TO, 514, r.ir». if;' ,v| use ()- proper care and diligeiK c on the part of its agents, and tliat such proper care and diligence were observed by tiicin. North- ern C. A\ Co. V. Ifar,/, 63 A/ N. R. Co., (Aj.) Louisville &> N. R. Ky. 151, 3 S. W. Rep. Where it is shown two hundred yards engine before being struck, the burden is on the company to show that the train could not be safely stopped in that distance, as it is a matter of common knowledge that trains can ordinarily be stopped in that dis- tance or less. Gulf, C. &• S. F. R. Co. v. Ellis, IX Fed. Rep. 481, 10 U. S. App. 640, 4 C. C. A. 454. Proof that stock were killed on the track by the company's train raises a presumption of negligence, and casts the burden on it to show proper care, or that the killing was unavoidable. Nashville &* C. R. Co. v. Fu- gett, 3 Coldw. ( Tenn.) 402. Lapine v. New Orleans, O. &- G. IV. R. Co., 20 La. Ann. 158. 516. To show observance of statu- tory precautions.— Alabama Code, § 1699, providing that an engineer on perceiv- ing any obstruction on the track must use all means within his power to stop the train ; and § 1700, providing that railroad com- panies shall be liable for all damages to per- sons or property resulting from a failure to comply with the preceding section, or from any negligence on the part of the company or its agents ; and that when stock are killed or injured the burden of proof is on the com- pany to show a compliance with the preced- ing section : construed to mean that in any suit for injuries to property the burden of proof is on the company to show that these regulations were observed, if the injury oc- curred at any of the places mentioned in the statute. SoutA &* N. Ala. R. Co. v. IVilliams, 65 Ala. 74.— Followed in East Tenn., V. & G. R. Co. v. Bayliss, 19 Am. & Eng. R. Cas. 480, 74 Ala. 1 50. Where suit is brought in Alabama to re- cover for cattle killed, if it be shown that they were killed on or near a public road crossing, the burden is then upon the com- pany to disprove negligence by showing a compliance with all the statutory require- ments, or reasons why they were not com- plied with. Alabama G. S. R. Co. v. McAlpine, 80 Ala. 73.— Limiting Mobile & O. R. Co. v. Williams, 53 Ala. 595; Clements v. East Tenn., V. & G. R. Co., 77 Ala. 533. If live stock are injured by a railroad company by reason of an obstruction which could or ought to have been perceived, when within the corporate limits of a city or town at or near a depot or a public crossing, in order to excuse the company from liability, all the requirements of the statute as to signals, etc., must have been complied with; and under all circumstances railroad companies are liable for injuries which result from the negligence of its ser- vants or agents ; and in either case, where the plaintiff's evidence shows the injury, the burden is on the company to show a compliance with the statute, or to show that it was not negligent. Mobile Sf O. R. Co. V. Williams, 53 Ala. 595, 13 Am. Ry. Rep. 153.— Explained in Clements v. East Tenn., V. & G. R. Co., 77 Ala. 533. Fol- lowed IN East Tenn., V. & G. R. Co. v. Bayliss, 19 Am. & Eng. R. Cas. 480, 74 Ala. 150. Limited in Alabama G. S. R. Co. V. McAlpine & Co., 80 Ala. 73. After it is shown that plaintiff's mules were killed on defendant's railroad by a moving train, the burden of proof is on de- fendant to show that it was not negligent in respect to a look-out. Birmingham Min- eral R. Co. V. Harris, 98 Ala. 326, 13 So. Rep. 337. In an action for damages for killing a cow, the killing by the defendant's train being proved, it is not only incumbent on the de- fendant to prove that it did all in its power to avert the accident after the cow was dis- covered on the track, but it must also show that it was maintaining a careful and pru- dent look-out, and that, in the maintenance of such look-out, the cow could not have Oeen sooner discovered. Central R. &» B. Co. V. Lee, 96 Ala. 444, 1 1 So. Rep. 424.— :b 318 ANIMALS, INJURIES TO, 517-flao. ^ Quoting Louisville & N. R. Co. v. Posey, 96 Ala. 263. Under the Mississippi statute, after proof of the killing of stock, the burden is on the company to show that it exercised proper care, and this burden is not shifted by simply proving that the whistle was blown at the lime of the accident. Mobile &• 0. R. Co. V. Dale, 61 Miss. 206. 517. To mIiow Niifllclciicy of fence. — While a company is not required to fence its track or to maintain cattle-pits at points where to do so would interfere with the safety of its employes in operating trains, or where fences or cattle-pits would interfere with its rights or with the rights of the public in travelling or doing business with the company, yet the burden is upon the company to show that, in constructing and maintaining a bridge abutting upon a highway, it had adopted all reasonable and practicable precautions to keep animals from entering upon the bridge from the highway ; and it does not alter the case that the bridge may have been partially in the highway, or that the animal may have been struck while upon that part of the bridge extending into the highway, on ground ajjpropriated by the company. Cin- cinnati, H. &• I. Ji. Co. V. Jones, 31 Am. &• Eng. li. Cas. 491, in Ind. 259, 9 West. Rep. 602, 12 N. E. Rep. 113. Iowa Code, § 1289, provides that proof that stock were killed by a train shall be prima facie evidence of negligence on the part of the company; therefore the burden is on the company to show tiiat it had a sufficient fence under the statute, lircntner V. Chicago, M. Sf St. P. R. Co., 19 Am. (S- Eng. R. Cas. 448, 68 /on>a 530, 23 /V. IV. Rep. 245, 27 A'. IV. Rep. 605.— Following Small V. Chicago, R. I. & P. R. Co., 50 Iowa 338- 518. To show no duty to fence, generally.— In a suit for killing an animal on account of the want of a sufficient fence, if the company relies upon the fact that its road could not be fenced at the place in question, it has the burden of proof as to that matter. Louisville, N. A. 6- C. R. Co. V. Clark, 19 Am. 6>» Eng. R. Cas. 623, 94 Ind. III. In an action, under Missouri Rev. St. § 809, for double damages for, killing stock, the burden is on the company to show any circumstances exempting it from its duty to fence its right of way, as enjf)ined by the statute. Hamilton v. Missouri Pac. R. Co., 87 Mo. 85. 5 10. To hIiow no duty to fence ut place of entry. — The burden is upon the defendant to show atfirmatively that the place where the animals entered was one that it could not fence without endangering the safety of its employes. Chicago &^ E. I. R. Co. V. Modcsftt, 124 Ind. 212, 24 N. E. Rep. 986. Cincinnati, I., St I.. &' C. R. Co. V. Parker, 109 Ind. 235, 9 A'. E. Rep. 787. Chicago &* E. R. Co. v. Rrannegan, 5 Ind. App. 540, 32 N. E. Rep. 790. Jeffersonvillc, M. &* I. R. Co. V. Peters, i Ind. App. 69, 27 A'. E. Rep. 299. Toledo, St. L. &• A'. C. R. Co. V. Jackson, 5 Ind. App. 547, 32 A'. /;". Rep. 793. Pennsylvania R. Co. v. Lindley, 2 Ind App. 1 1 1, 28 N. E. Rep. 106. In an action to recover damages for the killing of animals which entered upon the track at a point where it was not fenced, the burden of proof is upon the defendant, when seeking to defeat a recovery upon the ground that the conjpany was not bound to maintain a fence at that point, as it would have endangered the lives of its employe;) engaged in switching; and a verdict in favor of the plaintiff will not be disturbed where it does not clearly appear from the evidence that the maintenance of a fence and cattle- guards at the point where the cattle entered upon the track would have endangered the safety of the employes of the company. Indianapolis, D. &* W. R. Co. v. Clay, 4 Ind. App. 282, 28 A'. E. Rep. 567, 30 N. E. Rep. 916. In a suit for killing plaintiff's cow, if the company claims that the animal entered its premises within its station or depot grounds, which are not required to be fenced, it has the burden of proof of such defense. Wilder v. Chicago (S- W. M. A\ Co., 35 Am. &^ Eng. R. Cas. 162, 70 Afich. 382, 14 West. Rep. 627, 38 A'. W. Rep. 289. —Followed in Rinear v. Grand Rapids & I. R. Co., 70 Mich. 620. 520. To 8I10W no duty to fence nt place of injury. — To relieve a company from liability for killing or injuring animals by locomotives or cars at a place not se- curely fenced, it is necessary that the com- pany show that it was not legally bound to fence at that place. Banister v. Pennsyl- vania R. Co., 19 Am. &* Eng. R. Cas. 570, 98 Ind. 220.— Quoting Evansville & T. H. R. Co. V. Willis, 93 Ind. 507 ; Baltimore, O. & C. R. Co. V. Kreiger, 90 Ind. 380. — Ft. ANIMALS, INJURIES TO, r.21-r»2«. 319 Wrtyw^, C. 6- L. R. Co. v. Herbold, 23 Am. &* Etig. R. Cas. 221, 99 Ind. 91. Cincinnati, If. &* /. R. Co. V. Ford, 13 Apn. <5- Eng. K. Cas, 571, 89 Ind, 92. JeffersonviUe, M. 6- /. ^. Co. V. O'Connor, 37 /«^. 95, 5 /Jw. Ay. AV/. 566. In an action under the Kansas statute to recover of a railroad company for stock killed, if it appears from the plaintiff's tes- timony that the road was unfenced at the place of injury, the burden of proof is on the company to show that it was under no obligation to fence at such place, or that the night herd law was in operation, and that the animals were killed in the night-time. Union Pac. R. Co. v. Dyche, 28 Kan. 200. Where domestic animals are killed or in- jured on a railway track not protected by fences or cattle-guards, the burden rests upon the railway company to show that it is not bound to fence at that place, on the {^ound that it is necessary to be kept open for the accommodation of the public. Cox V. Minneapolis. S. St. M. <5- A. R. Co., 38 Am. &* Eng. R. Cas. 287, 41 Minn. loi, 42 N. W. Rep. 924. Where it is shown that a mare was killed at a point on the track which is not fenced, the burden is on the company to show that it could not lawfully have placed a fence there, and proof that the killing was within an incorporated city is not sufficient unless it appear that it was within grounds that were laid out into streets and squares, and occu- pied. Texas . 512, 40 A'. W, Rtp. 223. Com|)are AfcCitnd- /iss V. Chititgo 6- N. W. K. Co., 45 W^"- 365, 19 Am, Ry. Rep. 374. Carey v. Chicago, A/. *- .S'A P. R. Co., 20 Am. ** Eng. R. Ciis. 469, 61 Wis. 71. 20 yV. W. Rep. 648. r3a. What Im a qiieMtioii of law lor the voiirt, geuerally.— The record of a board of appraisers, appointed by a jus- tice of the peace to fix the value of a mare killed hy a train of cars on a railway, as provided in § 6, chapter 57, Kentucky Gen. St., is not competent to be read as evidence bef'ire the jury by the plaintifT In his action against the railroad company for killing the mare. The questions arising on the pro- ceedings before the appraisers were for the court and not for the jury. Louisville &• N. R. Co. v. Bro7vn, 13 Bush (A>.) 475. n33. Ah to when statutory pre- NUiiiptioii of negligence is overcome. — Dakota Code Civ. Proc. § 679, makes proof of killing of slock prima/acie evidence of negligence on the part of the company. Held, that the question as to when this prima facie evidence is overcome by proof on behalf of the company is a question of law for the court. Volkman v. Chicago, St. P., Af. » /. R. Co. v. Shriner, 6 Ind. 141. — Followed in Northern Ind. R. Co. v. Martin, 10 Ind. 460. The question as to whether employes in charge of a train were negligent or not in killing stock is for the jury, and evidence that no signals were given, and that the train was running at a high rate of speed, is proper for the jury to consider in deter- mining the question of negligence. Edson V. Central R. Co., 40 Iowa 47, 8 Am. Ry. Rep. 412. But unless there is evidence of negligence on the part of a railroad sued for injuries done by its servants to cattle on the track, it is error to submit the question to the jury. New York &• E. R. Co. v. Skinner, 19 Pa. St. 298.— Quoted and disapproved IN Trout V. Virginia & T. R. Co., 23 Gratt. (Va.) 619. Reviewed in Roof v. Charlotte, C. & A. R. Co.. 4 So, Car. 61. However, when there is any evidence fairly tending to prove the negligent act of the defendant, it is not proper for the court to withdraw the decision of the issue from the jury by excluding the plaintiff's evidence or by directing the jury to find for the defend- ant. Hoge V. Ohio River R. Co., 35 W. Va. 562, 14 S. E. Rep. 1 52. And the fact that there was no evidence that the ringing of the bell, the sounding of the whistle, or other efforts to avoid the injury which might have been made, would probably have averted the accident, will not justify the court in taking the case from the jury. White v. St. Louis <&» S. F. R. Co., 20 Mo. App. 564. If the jury can, with reasonable certainty infer from the surrounding circumstance, that the cattle in question were crippled by being struck by defendant's engines, the question will be submitted to them, and their verdict will not be disturbed. Harned V. Missouri Pac. R. Co., 51 Mo. App. 482. — Applying Gee v. St. Louis, I. M. & S. R. Co., 80 Mo. 283 ; Mayfield v. St. Louis & S. F. R. Co.,91 Mo. 296; McBride z/. Kansas City, St. J. & C. B. R. Co., 20 Mo. App. 216. As soon as a company enters inclosed lands for the purpose of constructing its road, it is bound to use all reasonable and prudent means to prevent cattle from stray- ing on the track and to prevent the cattle of others from going upon the owner's land, and the question whether such means have been adopted, when applied to matters aris- ing before the company commences to run trains, depends upon the fpcts of each case, and must be left to the jury. Holden v. Rutland &* B. R. Co.,y>Vt. 297.— Quoted IN Comings v, Hannibal & C. M. R. Co., 48 Mo. 512. (2) Illustrations. — Defendant's fence be- tween its track and plaintiff's pasture was swept away by a flood, which was at its height about eight days before plaintiff's horses were injured on said track. During the three days immediately preceding the injury the water along the line of the fence had fallen at the rate of nearly eight inches each day, but at the time of the injury it had not subsided so as to leave the entire line of the fence at the place in question uncovered. The jury found that a new fence might have been properly and reasonably constructed two days before the injury. Held, that the court erred in submitting to them the ques- tion whether defendant was negligent in neglecting to rebuild the fence, for the evi- dence was insufficient to show negligence even if undisputed. Goddard w. Chicago &* N. IV. R. Co., 54 Wis. 548. In an action for negligently killing plain- ANIMALS, INJURIES TO, 636. 328 tiff's mare, he proved that on the night of October 13 the train was stopped while passing through or near his land, and that a passenger on the train saw the con- ductor and some of the other men em- ployed on the train exaniining a mare wliich was lying at the foot of an embank- ment near the railway, and unable to rise without assistance; that early the next morning plaintiff's mare was found dead near the same place with several of her ribs broken ; and that she had been grazing about there the previous evening and was tiien uninjured, ^^/r/, that there was ample evidence of the identity of the mare for the consideration of the jury. New Brunswick R. Co. V. Armstrong, 23 New Brun, 193. Evidence held sufficient to warrant submis- sion of . ompanys negligence to the jury in the following instances: In an action for killing a cow in passing a curve, where the proof showed that she could be seen from the engine at a distance of about 175 yards, and that had the engineer been looking from the right side of the cab he could have seen her in time to have stopped the train. Denver &* R. G. R. Co. v. Henderson, 10 Colo. I, 31 Am. 6^ Eng. R. Cas. 559, 13 Pac. Rep. 910. See also Denver <&>» R. G. R. Co. V. Henderson, lo Colo. 4, 13 Pac. Rep. 912. Where, under the statute exempting the inhabitants of ten counties in Dakota Terri- tory from liability for .ill damages done by their animals while trespassing upon the lands of another, S.'s stock strayed upon the defendant's railroad track, and it ap- peared the engineer saw it a mile and a half distant but did not discover its presence on the track until he was about sixty rods from it ; that he then whistled for brakes and they were applied, also air-brakes ; that it was down-grade, and there was a train of thir- teen loaded cars ; that the stock, instead of leaving the track, ran ahead of the train, when one was caught and killed ; that the others gathered around this one, and another train coming close behind, ran into them and injured two others ; that the engineer of the second train did not see tlie stock till within five rods of it. Sprague v. Fre- mont, E. &» M. V. R. Co., 6 Dah. 86, 50 A^. IV. Rep. 617. Where it appeared from the evidenee that a hand-car was moving along the track at a high rate of speed; that a cow was moving slowly towards the crossing and might have been seen by those on the car two or three hundred feet off ; that no at- tempt, however, was made to put on the brake until within about thirty feet of the cow, which was then directly on the crossing : and that the brake being worn smooth did not operate, and the car ran over the cow, kill- ing it. Missouri Pac. R. Co. v. King, 15 Am. &* Eng. R. Cas. 529, 31 X'an. 500, 3 Pac. Rep. 371.— Following Missouri Pac. R. Co. V. Wilson, 28 Kan. 637. Where sheep were killed by a train near a cattle-guard at a highway crossing, and there was testimony that the fencing near by was, and had long been, insufficient, and that the cross- fence was two feet short of the cattle- guard, and the latter shallow. Agnew v. Michigan C. R. Co., 20 Am., &• Eng. R. Cas. 441, 56 Mich. 56, 22 N. W. Rep. 108. In an action for killing a mule, where the engineer testified that the train was com- posed of twenty-two loaded cars and was ruiming twenty miles an hour, and that every precaution was taken, but it was impossible to stop the train in time ; but where there was other evidence, to the effect that the engineer saw the mule when some seventy-five to one hundred yards in advance of the engine, and that it ran three hundred yards before being struck. Mobile 6- O. R. Co. v. Gunn, 68 Miss. 366, 8 So. Rep. 648. — Distinguishing Yazoo & M. V. R. Co. v. Smith, 68 Miss. 359; Chicago, St. L. & N. O. R.Co. v. Pack- wood, 59 Miss. 280. Where, after plaintiff had proved the kill- ing of his mule by the company and made out a prima facie case, the engineer, testify- ing for the company, stated that the mule was killed at night when very dark and foggy ; that when first seen it was only about forty feet away and he was running rapidly on a down-grade, and that the locomotive struck the mule in less than two seconds ; that he did not sound the alarm nor reverse the engine because he did not have time ; and that there was a trestle just ahead which would have endangered the train if he had run on it with down brakes and reversed engine ; and another witness for the defense stated that the alarm could have been sounded in two seconds, but that the train in that time would have moved sixty feet ; but where in rebuttal there was evidence tend- ing to show that the mule ran forty feet be- fore it was struck, and that there was no such fog as claimed by the engineer. Ross v. I :; ( !< 324 ANIMALS, INJURIES TO, 536. ««: ^ Si' lit Naiches, /. «S- C. R. Co,, 23 Am. &• E>ig. R. Cas. 196, 62 Miss. 23.— Distinguishing Chicago, St. L. & N. O. R. Co. v. Packwood, 59 Miss. 280. In an action for killing an animal, where it appearea that it was on a clear starlight night, and that the animal ran some three hundred yards on the track in front of the engine, though the engineer testified that he was on the look-out and only saw it when within some twenty to thirty yards away. Kent V. NcTu Orleans &* T. R. Co., 67 Miss. 608,7 So. Rep. 391. Wiiere the railroad company allowed quantities of salt to be deposited on and near its track, at or near its station, where it would attract animals, and allowed the same to remain after it knew the salt was there, or, by reasonable care and diligence, might have known it.* Brown \. Hannibal &• St. J. R. Co., 27 Mo. App. 394.— Fol- lowed IN Burger v. St. Louis, K. & N. W. R. Co., 52 Mo. App. 1 19. Where evidence showed that defendant's train was running at the rate of twenty miles an hour, that plaintiff's cow was in full view at a town crossing when the train was thirty yards away, and that no signal was given or effort made to stop the train until just before the cow was struck. White v. St. Louis Sf S. F. R. Co., 20 Mo. App. 564.— Reconciling Evans v. St. Louis, I. M. &S. R. Co., i6 Mo. App. 522. Ii an action for the killing of horses be- longing to plaintiff, which had strayed upon the track through an open gate in the fence erected by the company, where the evidence showed that the train struck them in the night; that there was snow on the ground whi.h had lain there some time, and was packed and solid ; that a light snow had fallen on the night of the accident but pre- vious thereto; that the train was running at a high rate of speed ; and that from the tracks made in the recently-fallen snow it was ap- parent that the horses had run at a rapid rate of speed in front of the engine for some distance, but were finally caught, thrown from the track, and killed. Missouri Pac. R. Co. V. Vandeventer, 28 Neb. 1 1 2. Where the evidence shows that the ani- mals were killed at a place where there was no fence between the right of way and the owner's fields where the animals pastured ; that at the time of the accident they were * See ante, 40. feeding on the right of way on the opposite side from the owner's lands where there was a fence ; that the animals could have been seen for some distance; that the train ran without signals or without slowing its speed until within two hundred and fifty feet of the animals. Johnson v. Rio Grande IV. R. Co., 7 Utah 346, 26 J'ac. Rep. 926. In an action for killing a mule, where there was evidence to show that the fence at or near where it was killed was down in several places, that certain cattle-guards were so filled up as to allow stock to pass over them, that the mule was killed while running on the track in front of the train, there was high grass on the right of way, and that the fence was in good condition the day before. Wines v. Rio Grande W. R. Co., 9 Utah 228, 33 Pac. Rep. 1042. In an action for killing two horses, where plaintiff produced a witness who testified that she saw them running on the track a short distance ahead of the engine ; that the train was running about twenty-five miles an hour ; that she watched the train, the train- men, and the horses until they passed out of sight, and that as far as she could discover the engineer and fireman did nothing to check the speed of the train ; and that no bell was rung until just after the train passed out of sight, when the train was only one or two ii U egraph poles behind the horses. Tiiere was other evidence that the horses were found soon after the train had passed near the track with their legs broken and otherwise cut and bruised. Johnson v. Baltimore &" O. R. Co., 25 W. Va. 570. Where the evidence showed that the plaintiff's steer was turned loose to graze on uninclosed lands beside the railway track, at a place where the defendant was required by law to fence but had failed to do so, and the animal was afterwards found near the track verv badly injured, and blood and hair were found en the railway, indicating that the steer had been dragged or shoved along by a passing train. Jackson v. St. Louis, I. M. P. R. Co., 13 Am. &* Eng. R. Cas. 538, 62 /owa 299, 17 A'. IV. Rep. 520. — Followed in YouU v. Sioux City & P. R. Co., 21 Am. & Eng. R. Cas. 589, 66 Iowa 346. In an action for killing stock, where plain- tiff claimed that the negligence making the company liable was in running the train with the engine behind, and the evidence showed that the train was a short one with ii man on the front car to keep a look-out, that the accident occurred while going round a curve at a slow rate of speed, that every precaution was exerted after the stock were discovered to avoid the injury, and that th'.; train was stopped as soon as it could have been stopped if the engine had been in front. Falconer v. European &^ N. A. R. Co., \\ New Brun. 179. 537. Negligence where facts are in conflict. — In an action for killing cattle, where the evidence is such that a verdict for either party could not be disturbed on appeal, the question of a conflict of evidence should have been submitted to the jury and not decided by the court. Cage v. Louis- ville, N. O. 6f T. R. Co., {Miss) 7 So. Rep. 509. Where the evidence as to the situation and surroundings of an animal killed by a railroad train is conflicting, and is such that under some phase of it the jury might prop- erly conclude that the place was such as re- quired the company to fence, the question must be left to the jury under proper in- structions. Pennsylvania R. Co. v. Lindley, 2 Ind. App. Ill, 28 N.E. Rep. 106. Where the evidence was conflicting as to the condition of the fence, which it was the duly of the railroad company to keep in re- pair, at or a short time before the time of the injury, the question as to the knowl- edge, care, and diligence of the defendant should have been submitted to the jury. lirentner v. Chicago. M. fi* St. P. R. Co., 7 Am. &> Eng. R. Cas. 574, 58 Io7t>a 625, 12 A^. W. Rep. 611. Where there is a conflict of evidence as to the speed of the train which killed plaintifl's cow at a crossing, and as to the distance that she could have been seen by the en- gineer, and the evidence shows that there was a sharp curve in the track, and that the train was a wild one, the question as to whether the speed of the train was a danger- ous one is for the jury. Courson v. Chicago, M. ** St. P. R. Co., 71 Iffwa 28, 32 A^. W. Rep. 8. In an action for killing live stock at a crossing, the evidence showed that the stock were in plain view of the engineer for half a mile, that the train was running from forty to forty-five miles an hour and approached without signals, that those in charge of the stock knew the train was riue, and that as soon as the animals were seen the brakes were applied. Held, that as the evidence was conflicting, the questions of negligence and of contributory negligence should have been left to the jury. Wines v. Rio Grande W. R. Co., 9 Utah 228, 33 Pac. Rep. 1042.— Quoting Grand Trunk R. Co. v. Ives, 144 U. S. 417, 12 Sup. Ct. Rep. 679. 538. Negligence as to repairs in fence, etc.— Where a fence along a track was found to be burned in the evening, and a horse was killed the following night, the question of negligence in postponing the repairs is for the jury. Crosby v. Detroit, G. H.Sf M. R. Co., 58 Mich. 458, 25 N. IV. /?» St. P. R. Co., 13 Am. &* Eng. R. Cas. 566, 31 Afinn. 419, 18 N. W. Rep. 272. A company had fenced its track on both sides, but afterward opened a g.ip on one side for its own convenience. Sheep that had strayed on the track were killed while attempting to escape through the gap. Held, that it was a case which was proper to submit to the jury to pass upon the question as to whether the company had exercised proper care. Tyler v. Illinois C. R. Co., 19 Am. &* Eng. R. Cas. 519, 61 Miss. 445.— Limiting Chicago, St. L. & N. O. R. Co.r-. Packwood, 59 Miss. 280.— Explained in Illinois C. R. Co. ?/. Wiilktr. 63 Miss. 13. 543. Defective gate.— Where it is claimed that stock were killed by reason of escaping through a gate which the com- pany was required to maintain, and which was not provided witii proper fastenings, the question of the negligence of the com- pany in the construction of the gate is properly submitted to the jury. Hammond V. Chicago &^ N. W. R. Co., 43 Iowa 168, 14 Am. Ry. Rep. 412. Whether or not a company has been negligent in allowing bars to remain down for such a length of time as to make it liable for injury to animals coming upon the track, is a question of fact for the jury. Perry v. Dubuque S. W. R. Co., 36 Iowa 102. 544. Defective public crossing.— If the approaches to a railway at a high- way crossing are not built exactly opposite each other, it is a question for the jury whether the defect is such as to render the company liable for stock killed at the cross- ing. Meeker v. Chicago, M. peed at which a train was run- ning when cattle were killed, it is proper to Inquire whetiier, under all the circumstances of the case, the defendants exercised rea- sonable and proper care in '-unning their engine to avoid injury to plainiiff's cattle; but it is not proper to inquire wl;ether the train at the particular time and pkce was running faster than usual, and if so, why. All facts going to show a want of proper care should be left to the consideration of the jury. Centra/ Ohio R. Co. v. Lawrence, 13 Okio St. 66.— Following Cleveland. C. 6 C. R. Co. V. Elliott, 4 Ohio St. 474. Quot- ing Cincinnati, H. & D. R. Co. v. Waterson, 4 Ohio St. 434. In an action for killing a mule on the track the evidence showed that the mule was about the color of earth and was fastened in a culvert, but it did not appear how much of the mule was above the track ; and that it was night-time, and there was no evidence to show how far the headlight would shine, which was shown to be of the best kind and in good order ; but the evidence did show that by its light the engineer could not see more than thirty yards distant, and that he could not stop the train in less than forty rods. Held, that the question of negligence «Seeoif/<, 169. in running a train at a rate of speed so that it could not be stopped after seeing the mule was for the jury. Memphis &* C. R. Co. v. Zytf«, 62 .^/rt. 71.— Followed in Alabama G. S. R. Co. V. Jones, 15 Am. & Eng. R. Cas. 549, 71 Ala. 487. Qualified in Ala- bama G. S. R. Co. V. Moody, 92 Ala. 279. 546. Wilful negligence.— In an ac- tion for wilfully killing plaintitl's cow, a witness for the plaintitf testified that the train came almost to a stop about a thou- sand feet from the crossing where the cow was standing; that she could be seen by one upon the engine for a half-mile; that the train started up and increased its speed to thirty miles an hour until it struck the cow, and then ran much slower ; that the engineer was looking out of the cab in the direction of the crossing, but gave no sig- nal and made no attempt to frighten her from the track. The engineer testified that he did not see the cow in time to avoid striking her, that he tried to stop his en- gine, and that he did not intend to kill her. Held, that it was error to withdraw the case from the jury, as it was for them to say whether the killing was wilful. Overton v. Indiana, B. (S- \V. R. Co., i Ind. App. 436, 27 N.E.Rep. 651. 547. Proximate cause. — (i) Gener- ally. — Whether the failure to ring a bell, sound a whistle, or the excessive rate of speed at which a train is running through the streets of a city was the proximate cause of an injury to an animal, is a question of fact for the jury. Ohio &* M. R. Co. v. Crayeraft, 5 Ind. App. 335, 32 N. E. Rep. 297. Chica^i^o. St. L. &• P. R. Co. v. Fenn, 3 Ind. App. 250, 29 iV. E. Rep, 790. It is a question for the jury to say whether a failure to blow a whistle to frighten stock away that are seen on the right of way, but not on the track, is negli- gence, as the duty to blow a whistle is not imperative in all cases. Louisville, N. &* G. S. R. Co. V. Reidmond, 13 Am. &• Eng. R. Cas. 515, II Lea {Tenn.) 205. — Ap- proved IN East Tenn., V. & G. R. Co. V. Bayliss, 77 Ala. 429, 54 Am. Rep. 69. Those in charge of a train have a right to sound a whistle, to give notice of its approach both to the people that may be about street crossings and to the station agent, when the train is nearing a station ; but where such sounding of the whistle frightens horses at a street crossing and causes them to run on the track, the ques- s m 328 ANIMALS, INJURIES TO, 548. «% liMei WW as;* tion of whether the right to sound the whistle was abused is for the jury, and if an abuse of the right is found, as to whether the negligence caused the injury. Mayer V. New York C. &> H. R. R. Co., 8 N. Y. Supp. 461. Where all the circumstances connected with tiie striking of an animal by a train, including the illegal rate of speed of the train, are in evidence, it is proper to sub- mit to the jury whether the animal was struck by reason of such illegal rate of speed. Backenstoe v. Wabash, St. L. &• P. R. Co., 23 Mo.App. 148; affirmed 86 Mo. 492, I West. Rep. 743. In an action for the value of a colt killed by a passing train in a cattle guard which was filled with snow — held, that the question whether the condition of the cattle-guard in that respect was the proximate cause of the injury was, under the evidence, properly submitted to the jury. Giger v. Chicago, Sr* N. W. R. Co., 80 Iowa 492, 45 N. W. Rep. 906. (2) Illustrations. — Plaintiff sued to re- cover for a horse killed on the track, which went thereon through a gate which the company was bound to maintain. Plain- tiff and his servant testified that the gate had stood open most of the time for some two years by reason of its being so sagged that it would not close, and that they always kept it closed as long as it was in proper condition. The defendant intro- duced evidence tending to show that the sagging was caused by plaintiff leaving it open. Held, that it was proper to submit to the jury the question of plaintiff's care in using the gate, and also whether the company's negligence in not repairing it was the sole cause of the injury. Taft v. New York, P. &• B. R. Co., 157 Mass. 297, yzN.E.Rep. 168. Where stock go upon the track over a fence which has been erected by the com- pany, and are killed, and the evidence does not conclusively show that a fence such as the law requires would not have turned the cattle, it is for the jury to determine whether the failure of the company to have such a fence was the cause of the injury. Alexander v. Chicago, M. &» St. P. R. Co., 41 Minn. 515, 43 N. W. Rep. 481. Plaintiff was driving i. a highway beside the railroad track, and his horses, becoming frightened by a passing train, got beyond his control, ran upon the track, and were injured. Held, that it was proper to leave to the jury the question whether or not the failure to fence the road was the proximate cause of the injury. Maker v. Winona &* St. P. R. Co., 13 Am. &> Eng. R. Cas. 572, 31 Afinn. 401, 18 N. W. Rep. 105. — Fol- lowing Nelson v. Chicago, M. & St. P. R. Co., 30 Minn. 74. In an action against a railroad company, under Missouri Rev. St. § 806, for killing live stock at a public crossing, alleged to have been caused by failure to give the statutory signals, where there is no evi- dence to show anything to hinder the ani- mal from escaping, it is proper to leave it to the jury to find whether the killing was due to such failure. Kendrick v. Chicago &' A. R. Co., 81 Mo. 521.— Approved in Keim v. Union R. & T. Co., 90 Mo. 314. A township highway, unguarded by bar- riers, lay between two railroads, the fills of which crowded it somewhat on either side. The plaintiffs' cattle, driven thereon, were frightened by a train on one railroad and ran off upon the track of the other railroad, where they were struck by a locomotive and killed. In trespass against the town- ship, the questions whether the defendant was negligent in not providing barriers, and whether the absence of the latter was the proximate cause of the injury, were prop- erly submitted to the jury. Ewing v. North Versailles Tp., 146 Pa. St. 309, 23 Atl. Rep. 338.— Distinguishing West Mahanoy Tp. V. Watson, 112 Pa. St. 574. 648. Place of entry.— Where the evi- dence tends to show that plaintiff's animals went upon defendant's road at a point where it was the duty of defendant to fence, it is prof)er to overrule a demurrer to the whole evidence and submit the case to the jury. Emmerson v. St. Louis &• H. R. Co., 35 Mo. App. 621. Where the evidence showed that there were two points in the fence at which the stock sued for could have entered upon the railroad tracks, but did not positively or in any direct manner show at which of these twj places the entry had actually been made, it was held that it was for the jury to determine the point of actual entry. Jones V. St. Louis, I. M. &^ S. R. Co., ^Mo. App. IS. In an action for killing stock, whether the place where the plaintiff's animals strayed upon the defendant's railway track was not only within the claimed station ANIMALS, INJURIES TO, 54»-r,rt3. 329 grounds and switch limits, but also whether such grounds were necessary for the com- pany in conveniently and safely transacting its business, and for the accommodation of the public transacting business at the sta- tion, is a question for the jury. Straub v. Eddy, 47 Mo. A pp. 189. If the evidence shows that there was no fence on the side of the railroad track at a point on the same where by law a fence was required, and that at that point the animal was killed, that is sufficient evidence, nothing more appearing, upon which to submit to a jury the question whether or not the animal got upon the track at the point at whicii there was no fence, and direct proof of such fact is not necessary. Ehret v. Kansas City, St. J. &• C. B. R. Co., 20 Mo. App. 251.— Applied in Miller v. Wabash R. Co., 47 Mo. App. 630. Fol- lowed IN Pearson v. Chicago, B. & K. C. R. Co., 33 Mo. App. 543. Quoted in Wal- ton V. Wabash W. R. Co., 32 Mo. App. 634. Stock went from plaintiff's lands to ad- joining lands, whicli were occupied by him and another person in common, and thence to a wood-yard which plaintifi had leased to the railroad company, and thence to the track and were injured. There was no express agreement between plaintifi and the railroad company as to who should fence the wood-yard, or as to whether the company's use should be exclusive. Held, under these circumstances the court sliould leave it to the jury to say whether the com- pany was in the exclusive use of the wood- yard, and whether the stock escaped from adjoining lands to the wood-yard through a defective fence which the company was bound to repair. Holden v. Rutland Or* B. R. Co., 30 yt. 297. Ill an action to recover for the killing of plaintiff's ox by reason of defendant's fail- ure to fence its right of way, the testimony of plaintiff that there were ox tracks lead- ing from the west across a ditch, up an em- bankment, and across the side-track of a railroad to the main track, where the ox was killed, and that he found no cattle tracks at any other place on the right of way, warranted the submission to the jury of tlie question whether the ox came upon the right of way at the point where such tracks were seen. Dinwoodie v. Chicago, M. s to whether an en- gineer had seen animals on the track in time to have stopped the train, a verdict for the plaintiff decides the question in his favor as to whether a failure to give the statutory signals was the proximate cause of the injury, though the stock may have been on the track through plaintiff's want of care. Orcutt v. Pacific Coast R. Co., 85 Cal. 291, 24 Pac. Rep. 661. Where it appears that plaintiff's land did not adjoin the railroad company's, and that the highway was uninclosed on either side, so that a want of gates could not have occasioned the death of plaintiff's ox, a ver- dict acquitting the company of negligence in not having gates will bar a recovery for killing the ox. Jack v. Ontario, S. &* H. R. Co., 14 U. C. Q. B. 328. A finding that animals entered upon the railroad track " at a point where the railroad crosses a cartway or private way known as McQuiddy's crossing," is equivalent to a finding that the entrance was effected at a private farm crossing. Louisville, N. A. &* C. R. Co. V. Eizler, 40 Am. 6- Eng. R. Cas. 205, 1 19 Ind. 39, If) N.E. Rep. 615, 21 A''. E, Rep. 466. 556. SuflBciency of form of ver- dict. — In an action for double damages for killing stock, an instruction that if the stock got upon the track at a place where defend- ant failed to maintain a lawful fence, or at a necessary farm crossing where defendant had failed to erect and maintain a gate four and one-half feet high, with a latch or hook, and were killed by defendant's cars, the verdict should be for plaintiff, is defective in not stating that the killing or damage ANIMALS, INJURIES TO, r..-»7-.-»«H. 331 must have been caused by leasun ut tbc failure of defendant to so erect and main- tain such fence or gate. Montgomery v. Wabash, St. L. 6- P. R. Co., 90 Afo. 446, 2 S. W. Rep. 409. 557. Special verdict.— In an action against a railroad company for negligently killing an animal on a public crossing, be- cause of Its failure to blow the whistle or ring the bell, the special verdict must show that tne animal was on or ut the crossing when killed. Lake Shore &* M. S. R. Co. v. Van Auken, i Ind. App. 492, 27 N. E. Rep. 119. 558. Special flndlniir.— The evidence tended to snow that when theanimals came to the gateways in a fence they could freely pass in and along the right of way to where the fence was close to the track, so that they could not retreat into the open field upon the approach of a train. The gates were subject to ihe defendant's control, and after the killing of the stock the defendant made and enforced a rule to the effect that, if the said gates were not kept closed and locked by those who used them, the railroad com- pany would nail them up. The conditions were favorable for the construction of cattle- guards which would obviate the necessity of any gates at Jl. It was shown to the jury that the fence with the said gates might be less safe than no fence at all, and that the defendant's employes knew that the gates were open. Held, that a special find- ing of the jury that the defendant was neg- ligent in not keeping the said gates closed and locked was not unreasonable or ground- less in its premises. Mc Master v. Montana Union R. Co., 56 Am. &* Eng. R. Cas. 195, 12 Mont. 163, 30 Pac. Rep. 268. 559. Motion for judgment non ob- stante veredicto. — Where there was a verdict upon a complaint charging a wilful injuring, and were interrogatories sub- mitted to the jury relating wholly to the diligence of the trainmen and the train's coming in contact with the colt, a motion for judgment non obstante was correctly overruled. Ft. Wayne, C .&> L. R. Co. v. O'Keefe, 4 Ind. App. 249, 30 N. E. Rep. 916. b. Instructions.* 560. Interpretation.— Where an in- struction informed the jury that, in an action * Proper instruction on question of negligence, in action for killing stock, see 40 Am. & Eng. R. Cas. 188, abstr. for killing stock, plaintiff's damage would be the " assessed value " of the cattle, and there was no proof of any assessment of their value— ^^/d/, that these words must have been used and understood as the value proved or estimated by the jury from the evidence before them. Ohio (S- M. R. Co.v. Clutter, ^2 III. 123. In an action to recover double the value of stock killed, under the statute, after there was evidence showing that a tender had been made, the jury were instructed that if the stock were worth more than the amount tendered, then ihcy should return a verdict for double their value. Held, that this was equivalent to saying that the plain- tiff had the burden of proof to show that they were worth more than the amount tendered. Scott v. Chicago, M. &* St. P. R, Co., 78 Io7va 199, 42 N. W. Rep. 645. A statute making railroad companies liable for injury to stock had a proviso that " this act shall not apply to any railroad company or corporation * * ♦ whose road is inclosed with a good and lawful fence, to prevent such animal from being on such road." The court, after quoting the statute, charged the jurj' that it " does not apply to any railway or corporation * * * whose road is inclosed with a good and lawful fence which prevents such animals from being on such road." //>/ :- 334 ANIMALS, INJURIIiS TO, rt«5-A«7. |]l;:i!. S the company from liability In case it should be found that at the time of the accident the colt was not running at large, within the meaning of g 1289 of the Code, where the petition did not allege that the colt was running at large when killed, and no objec- tion to the omission was made by any plead- ing in the case, nor by a motion in arrest of judgment. Daugherty v. Chkago, M. &* St. /: A'. Co., (Iowa) 54 N. IV. R,p. 219. I'laintiQT was engaged with teams In con- structing u side-track along defendant's road, which was fenced, and for the con- venience of his work he made two K^^ps in the fence about four hundred feet apart, but between these two gaps there was another gap not made by him, and through this gap the mules in question, having escaped from plaintiff's control, went upon the track and were killed. Held, that the jury were justi- fied in finding, so far as the mere character of the place was concerned, that the mules were killed by reason of the want of a fence, and that instructions given upon the theory that they might so find, provided defendant could be charged with knowledge of the gap, were not erroneous. Accola v. Chica- go, B. &* Q. K. Co., 70 Iowa 185, 30 N. IV. AV/. 503. Where suit is brought to recover for a colt killed the company is not liable under the Missouri double damage act if it ap- pears that a fence of a proper kind had been built by the company, but had been broken down by the colt or other animals, by reason of which it went upon the track ; and an instruction that so states the law is free from objection. Wifliatiisv. Hannibal 6- St. J. R. Co., 80 Mo. 597. 565. Instructions relating to duty to construct and maintain cattle- guards. — ]n a suit by the owner of an ani- mal injured for the neglect of the defend- ant in not maintaining sufficient cattle- guards, it is not assignable error to instruct the jury that the duty of maintaining cattle- guards is laid upon railroad companies with reference both to the preventing of animals from straying onto the track and to the safety of passengers. Wait v. Bennington &> R. R. Co., 61 Vt. 268, 17 Atl. Rep. 284. An instruction that, if an animal enters on the track from a highway because of in- sufficient cattle-guards the company is by statute made liable for injury received by the animal from its locomotive or cars, is not objectionable. Whftewater R. Co. v. Bridgctt, 20 Am, &» Eng. R, Cat. 443, 94 /nd. 216. In an action to recover damages for the killing of stock by a passing train, the court instructed the jury, first, that to enable a person to recover under said statute he must show that the place where the animal went upon the railroad was at a point where the company was bound to fence the road, and that the road was not fenced at that point, or that the company was bound to maintain a cattle guard at said place, and that such guard was not in proper condition to keep stock off the railroad ; second, that said statute does not apply to the crossing of a public city or alley in a city, or a place within a city where, from the necessary use of the grounds, it would be unlawful or un- reasonable to require the railroad company to maintain a fence; third, that a railroad company is not bound under said statute to erect and maintain cattle-guards at the crossings of public streets and alleys within the corporate limits of a city, or to fence the lots lying on either side of the railroad track between such crossings; but beyond such crossings the company is bound to maintain fences and guards, the same as outside the corporation. Ne/d, that the de- fendant could not complain of these instruc- tions. 'Jeffersomiille, M. <&«» /. R. Co. v. Parkhurst, 34 Ind. 501. 500. InstructionH relating to main- tenance of gates at farm crosHings.— Where it is claimed that company i^ Uab' by reason of insufficiency of gate ^ ^s, it was proper to instruct the jui the questions were whether or not i uisten- ings of the gate were safe and rt.i Miiably sufficient for their purpose, and if not whether plaintiff's cattle got upon the trark and were injured by reason of such insuffi- ciency, and whether the fastenings were such, and put on in such a place and in such a way, as a man of usual and ordinary pru- dence would consider safe and sufficient for the purpose in that place. Payne v. Kansas City, St. J. &* C. B. R. Co., 35 Am. &* Eng. R. Cas. 113, 72 Iowa 214, 33 N. W. Rep. 633- 507. IVliat instructions are im- proper, generally.— An instruction that if the defendant, by its agent or servants, was guilty of negligence in killing the ani- mal, a verdict must be returned for the plaintiff, is erroneous as subjecting the de- fendant to liability for negligence other ANIMALS, INJURIES TO, fl67. 335 than that causing or contributing to the in- jury. Nashville, C. &* Sf. /,. A'. Co. v. Hem- tree, 38 Am. &• Eng. K. Las. 300, 85 A/a. 481. 5 So. Rep. 173. Where the evidence tends to show the use of a defective lieadlight on the en- l^ine at the time of the accident, a charge which instructs the jury tliat a headlight "such as are in use on tlic best equipped railroads " is the test of a proper headlight, is erroneous. Alabama G. S. A'. Co. v. Moody, 92 Ala. 279, 9 So. Rep. 238.— Fol- lowing Alabama G. S. R. Co. v. Jones, 71 Ala. 487 ; Alabama G. S, R. Co. v. McAl- pine, 7S Ala. 113.— Qualifving Memphis & C. R. Co. V. Lyon, 62 Ala. 71. If there is evidence tending to show that the engineer was competent, was keeping a proper lookout, and did not and could not see the approaching animal until it was too late to give the cattle-alarm or check the train It prevent tiie injury, it is error to charge tii" jury that the defendant is liable unless its servants or agents in charge of the train did all in their power which they could reasonably do to avoid the killing, without qualifying the charge by requiring the jury to be satisfied that there was no fault in not sooner discovering the stock, and that, when discovered, it was possible, by the exercise of diligence, to prevent the accident. Nashville, C. &* St. L. R. Co. v. Hembree, 38 Am. 6- Eng. R. Cas. 300, 85 ^/. 17. Where the evidence does not show the character of the place at the point where the innny to a colt occurred, an instruction, excluding from the jury the consideration that, if the colt was injured where the de- fendant had no right to fence, it would not be liable, was erroneous. Smith v. Kansas City, St. J. i3- C. B. R. Co., 58 Imva 622, 1 2 A'. ,W. Rep. 619. 500. luHtructioiis omitting to state essential facts. — If an instruction for plaintiff, which undertakes to enumerate the facts upon which a recovery may be had, omits the essential fact that the road had been opened six months, a judgment for plaintiff will be reversed unless such omitted fact is shown by the evidence. Chicago &^ N. W. R. Co. v. Dichl, $2 /ll. 441. It is error to leave it to the jury to say whethf^r cattle were killed near enough to a rr ■ crossing to afford the owner that protection which the law gives to a cross- ing, without telling them what the law is. Neely v. Charlotte. C. &* A. R. Co., 33 So. Car. 136, II S. E. Rep. 636. Plaintiff's horse escaped from his pasture at night onto a track over a fence which the company was bound to maintain, and was found in the morning in another pasture, some distance away, crippled. There was some evidence tending to show that it was crippled in the field where found. Held, that an instruction to the effect that if the jury were satisfied from the evidence that there was a clear connection between the escape of the horse and the injury received, plaintiff would be entitled to recover, was erroneous in not calling the attention of the jury to the difference between a direct and remote connection between the want of a suitable fence and the injury. Holden v. Rutland &* B. R. Co., 30 Vt. 297. The trial court instructed the jury as to proximate and remote negligence, and added that " plaintiff, in (uflfering his animus to ANIMALS, INJURIES TO, 570,571. 337 run at large in the vicinity of the road, was only guilty of remote negligence," and that if they find the company guilty of gross negligence plaintiff might recover. Held, that the instruction was erroneous in not calling attention to the degree of negligence of plaintiff contributing to the injury, as well as to its time of happening. Chicago &* N. W. R. Co. V. Goss, 17 Wis. 428.— Distin- guished IN HelW V. Abbot, 79 Wis. 409. 570. Iustriicti«:!!*« asHiiiiiiiig I'auts. — An instruction wiiich assumes that a plaintiff's claim was presented to an agent of the company within six months, as re- quired, is error where the evidence relating to the fact is oral and only tends to prove the fact of presentation. Alabama G. S. R, Co. v. Roebuck, 23 A»i, &• Eng. K. Cas. 176, 76 Ala. 277. A company is not liable for double dam- ages for animals killed for failing to main- tain suitable fences, under the Missouri statute, unless it appears that the killing re- sulted from such failure ; and an instruction which makes it liable, without reference to whether the killing resulted from the failure to fence, is erroneous. Ridenore v. Wabash, St. L. &- P. R. Co., 81 Afo. 227.— Following Harrington v. Chicago, R. I. & P. R. Co., 71 Mo. 384; Fitierling 7'. Missouri Pac. R. Co., 79 Mo. 504. In a statutory action for double damage for the killing of stock, an instruction which authorizes a recovery, without a find- ing that the stock came upon the track at a point where the statute required the com- pany to fence its right of way, is erroneous ; and the error is prejudicial when, under the evidence, it is uncertain whether the stock came upon the track at such a point. Roberts v. Qtiincy, O. 6- K. C. R. Co., 49 Mo. App. 164. Instructions that the stock reached the obstructed crossing without the negligence of the plaintiffs; that if the obstruction turned or caused the stock to turn up the track and they were killed by a passing train, then the jury should find for the plaintiffs, is erroneous, in assuming as a matter of infer- ence that the injury was caused by the ob- struction. Richmond 6-/?. R. Co. v. Noell, 86 Va. 19, 13 Va. L.J. 320, 9 5. E. Rep. 473. 571. Misleading iiistructioiiH.— The Alabama Code, § 1700, relating to the duty of engineers in approaching hifthway cross- ings or depots, applies exclusively to live stock. The next prerf^ding section relates I D. R. D.— aa. to the safety of human beings, and in a suit based on one section a charge as to the measure of duty under the other is mislead- ing. Mobile (S- M. R. Co. v. Blakely, 59 Ala. 471.— Followed in Alabama G. S. R. Co. V. Powers, 19 Am. & Eng. R. Cas. 502, 73 Ala. 244. The fact that a horse is killed on the track is not in itself proof of negligence, but where the killing is at a place where the company is required to fence, may be taken as a circumstance ' enable the jury to de- termine whether ' nces and cattle-guards were sufficient or not ; and an instruction which the jury might understand to mean that the fact of killing was proof of negli- gence, is misleading. Chicago &* A. R. Co. V. Utley, 38 ///. 4ro. Instruoiions are misleading which in effect tell the jury that if the stock while running at large went upon the road where it was unfenced, they were lawfully there, and that the company would be liable for killing the same if there was want of ordi- nary care and diligence; and that if the animals were killed by reason of the engi- neer not keeping a proper lookout, regard- less of his other duties, then the company was liable. Central M. T. R. Co. v. Rocka- fellow, 17 111. 541. The statute provides that the steam- whistle attached to an engine drawing a train of cars shall be sounded three times, at least, eighty rods from the place where the railroad shall cross any public road or street, except in cities and villages ; and in an action to recover damages for killing a colt at the crossing of a public road outside of a city or village, caused by the alleged negligence of the railroad company, an in- struction that, if the jury find from the evi- dence that the natural effect of sounding the whistle, as done by the engineer, was to drive the stock towards the track, then such whistling was negligence, is misleading. Manhattan, A. &* B. R. Co. v. Stewart, 13 Am. (?•• Eng. R, Cas. 503, 30 Kan. 226, 2 Pac. Rep 15J. In an action brought by the plaintiff to recover the value of stock killed at a public crossing by the negligence of the railroad company, the bifl of particulars alleged, among other things, "that the whistle of the engine was not sounded as prescribed by law ; and that in consequence thereof the stock were not warned of the approach of the train until it was too late to prevent * -fj TO m -A 338 ANIMALS, INJURIES TO, 572,573. them ti'om being killed; and that if the whistle of the engine had been sounded, as prescribed by law, the person in charge of the stocic could have prevented any injury." The bill of particulars further stated " that the company permitted a very high and dense growth of hedge to extend out on its right of way and nearly to the track," which "prevented persons travelling upon the public road from observing the ap- proach of trains." Held, that under the allegations of the bill of particulars it was misleading to instruct the jury that "if the company permitted and suffered a hedge to stand upon its right of way, so as to obstruct the view of the track, and but for such obstruction the injury to the stock would not have happened, the company is liable for the injury to the stock ; " and held, also, that where it appears from the instruc- tions and findings of the jury, under the allegations of such a bill of particulars, that the liability for the injury to the stock was fixed by the jury for the negligence of the company in permitting the hedge to grow upon the right of way as alleged, the verdict and judgment must be set aside. Atchison, T. &• S. F. R. Co. v. Hawkins, 40 Am. &- Eng. R. Cas. 201, 42 Kan. 355, 22 Pac. Rep. 322. 572. lustructlons outside the Issue. —In a common-law action for killing stock, negligence must be averred and proved ; and it is error to instruct the jury that if the company fail to fence its road as required by statute, by reason of which the cattle were killed, it is liable, whether the killing re- sulted from negligence or not. Terre Haute, A. &* St. L. R. Co. V. Augustus. 21 ///. 186. Where a company is sued for common- law negligence in killing stock, it is error to instruct the jury that plaintiff may recover for statutory negligence, such as failing to ring a bell before reaching a crossing. Chi- cago, B. &' Q. R. Co. V. IVells, 42 ///. App. 26. In an action at common law or under the Missouri damage act, § 5, for killing stock, it is error to instruct the jury as to the law laid down in the Missouri railroad act, $ 43. Tnrner v. St. Louis 6^ S. F. R. Co. 76 Mo. 261. Where suit is brought under Missouri Rev. St. § 809, for the killing of stock, an instruc- tion which makes the company liable if the killing was at a place where the track was not fenced, regardless of whether it came upon the track where it was fenced or not. is error. Henson v. St. Louis, I, M. &* S. R. Co., 34 Mo. App. 636.— Reviewing Muehl- hausen v, St. Louis R. Co., 91 Mo. 332. In a suit for damages for the killing of the plaintiff's cow by the defendant's railroad train, it is error to submit to the jury a ques- tion of the defendant's liability for common- law negligence when the evidence related only to the statutory negligence of failing to ring the bell or blow the whistle while approaching a public road crossing. Barrv. Hannibal 6- St. J. R. Co., 30 Mo. App. 248. Jeffersonville, M. &* /. R. Co. v. Lyon, 55 Ind. 477. 673. Instructions not correctly stating tlie law.— The cattle of the plain- tiff below were killed on the railroad track of the defendant by a train running over them. Held, that it was error for the court below to charge the jury that the de- fendant was liable if the cattle were killed through the negligence or want of ordinary care of the defendant. Union Pac, R. Co. V. Rollins, 5 Kan. 167. — QUOTED IN Hill v. Applegate, 40 Kan. 31. Proof of killing of stock, and of owner- ship by plaintiff, raises a presumption of negligence, and makes out a prima-facie case for plaintiff, which must be overthrown by proof by the defendant ; therefore an in- struction asked by the defendant company that when the defendant introduces evi- dence and explains the fact of killing, the plaintiff is required to prove by a prepon- derance of testimony that the company was negligent, does not correctly state the law. Vicksburg 6- M. R. Co. v. Hart, 19 Am. &• Eng. R. Cas. 521, 61 Miss. 468. Where the legislature has determined what signals ought to be given by moving trains to avoid injuries, it is error for a court to instruct a ju;y that they are at liberty to determine what signals should be adopted, and to regard their omission as negligence. Hollender v. New York C. 6- H. R. R. Co., 14 Daly (N. V.) 219, 6 A^. V. S. R. 352, 19 Aid. (N. Cas.) 18. The following instructions have been held erroneous as not correctly stating the law : An instruction which assumes that an en- gineer owes no duty to stock that are near the track, for, if they are seen near the track under circumstances tnat indicate ilanger, he is required to use necessary pre- cautions to avoid injury. Western R. Co. t. S/strunk, 85 Ala. 352, 5 So. Rep. 79. An instruction which made the company ANIMALS, INJURIES TO, 374,576. 339 liable for killing stock, if it did not " do everything in its power to prevent the in- jury," is erroneous, as stating a higher de- gree of care than the law requires, for the company is bound only to use reasonable care in the running of its trains. Cantrell V. Kansas City, M. &* B. R. Co., 69 Miss. 435, 10 So. Rep. 580. St. Louis, I. M. 6- S. R, Co. V. Vincent, 36 Ark. 451. An instruction to the effect that " when a railroad is properly fenced an engineer running a train thereon has a right to pre- sume that he will find a clear track, except at highway crossings, and in villages, towns, and cities, and is not bound to keep a look- out for animals trespassing on the track or elsewhere." Ohio &* M. R. Co. v. Stribling, iiin.App. 17. An instruction that submits the case on the old rule of contributory negligence and not of comparative negligence, as recognized in Illinois. Chicago &* E. I. R. Co. v. Bog- gess, 21 ///. App. 336. An instruction which authorizes the jury to find for plaintiff, if they find defendant guilty of a greater degree of negligence than plaintiff, assuming to correctly siate the law uf comparative negligence as applied in Illi- nois. Wabash R. Co. v. Jones, 5 ///. App, 007. An instruction that " defendant is not liable for injury to plaintiff's ar .nals unless it appears from the evidence tt.at the em- ployes in charge of defendant's engine wil- fully and maliciously blew the whistle on said engine with the intent of frightening plaintiff s animals, and not for the purpose of getting them to leave the track and get out of the way of approaching trains." Louisville that as the train was in advance of its sched- ule time when the flying switch was made, that was a fact the jury might consider. They might well have found it negligence on the part of the defendant's servants to throw the loaded cars on the siding before the usual time for so using it, when men and teams might be there engaged in mov- ing empty cars. Good v. New York, L. E. 6- W. R. Co., li N. Y. S. E. 77 i, 50 Hun 601, 2 A^. Y. Stipp. 419. Where the complaint, asking damages against a railway company for injury to stock, charges negligence and carelessness generally, it is not error to refuse to give in the charge to the jury a request limiting the cause of injury to the negligence of a single one of defendant's servants. Pittsburgh, C. &* St. L. R. Co. V. Fleming, 30 Ohio St. 480. Where the killing of cattle by a railroad train was proved, and the company offered no testimony in defense, the circuit judge committed no error in refusing to charge liiat the company were not liable unless shown to have been guilty of gross negli- gence or wilful injury. Jones v. Columbia &* G. R. Co., 19 Am. &> Et^. R. Cas. 459, 20 .SV. Car. 249. Handing to a trial judge the syllabus of a former case and asking him to read it to the jury, in an action for killing stock, where no more formal request is made, which is refused, such refusal is not ground for reversing a judgment, where the same proposition of law had been fully stated in the hearing of the jury. [McIver, J., dis- senting.] Molair v. Port Royal &• A. R. Co., 31 So. Car. 510, 10 S. E. Rep. 243.— Distin- guishing Harley v. EutawvilleR.Co.,31 So. Car. 151. The following requests for instructions were properly refused by the court : An instruction that if the jury believed that none of the mules was seen in time to stop the trains by the use of all possible means, or that, at their rate of speed, they could not have been stopped within the dis- tance within which the headlights would re- veal objects on the track, and that the head- lights were such as were used on well-regu- lated roads, they must find for defendant, since such instruction ignored the duty of the engineers to keep a lookout, and not to run their trains at a negligent rate of speed. Birmingham Mineral R. Co. v. Harris, 98 Ala. 326, 13 So. Rep. 377. Instructions which required plaintiff to show by what train the mules were killed, and that defendant was negligent. Birming- ham Mineral R. Co. v. Harris, 98 Ala. 326, 135^. Rep. 177. An instruction that if the jury believed the evidence they could not allow damages for the mules killed by either train was properly refused, since both engineers testi- fied that it was impossible, at the rate of speed at which they were running at the time of the accident, to stop their trains in time to save the mules. If so, it was negli- gence for which the company wns liable. Birmingham Mineral R. Co. v. Harris, 98 Ala. 326, 13 So. Rep. 377. An instruction which claims a verdict for the company, in an action for damages for killing a mule, " if the engineer was on the lookout for obstructions when he discovered the animal on the track, and then used all the means in his power to prevent the in- jury," ignoring the question whether the animal might not have been sooner dis- covered if a proper lookout had been kept, is properly refused. East Tenn., V. &* G. R. Co. V. Baker, 94 Ala. 632, 10 So. Rep. 211. An instruction " that if the engineer, on preceiviig the animal on the track, used 342 ANIMALS, INJURlL'S TO, 57«. M 4;^ all the means within his power known to skilful engineers in order to stop the train, then plaintiff cannot recover," because mis- leading, since the accident may have been proximately caused by his failure to keep a diligent lookout for obstructions. East Tenn., V. &* G. R. Co. v. IViitson, 90 Ala. 41, 7 So. Rep.iiy An instruction, in an action for killing a cow, that the failure of the company to keep its right of way clear of bushes is negligence, the question of negligence being exclusively for liie jury. Woolfolk v. Macon d» A. R. Co., 56 Ga. 457- A request to charge in general terms that a less degree of diligence is required in a county where the stock law prevails than in a county where it does not. Also a reque&t to charge that a less degree of diligence in looking out for stock is required while run- ning through a field than while running through lands uninclosed. Central R. Co. v. Summerford, 87 Ga. 626, 13 .S". E. Rep. 588. An instruction that, if the cattle were killed by the trains upon defendant's road it was incumbent upon plaintifT to show that the damages were caused by the negli- gence of defendant, as the jury might have inferred from it that it was necessary for plaintiff to prove wilful negligence, or some other negligence than the fact of the kill- ing and the omission to fence. Rockford, R. I. . 297. An instruction that the burden of proof of negligence is on plaintiff, or that plain- tiff's son should have notified the company of the defective condition of the fence, when an instruction had already been given directingthe jury that defendant is not liahle unless there was negligence in failing to repair the fences within a reasonable time after notice of their defective condition was had, and that defendant should have received notice of the want of repair. Du/i/i V. Chicago &* N. W. R. Co., 7 Am. &* Eng. R. Cas. 573, 58 Iowa 674, 12 A^. W. Rep. 734. An instruction that, "if the jury finds from the testimony in the case that the cow was struck in the highway by the defend- ant's engine and killed, the plaintiff cannot recover," the plaintiff claiming that if the animal was upon the highway crossing when injured it was because of the neglect of the defendant to properly fence its track, as such instruction excludes all idea that the defendant's negligence might have oc- casioned the cow's being upon the highway. /ebb\. Chicago &* G. T. R. Co., 31 Am. &• Eng. R. Cas. 532, 67 Mich. 160, 10 IVest. Hep. 905. 34 A'. W. Rep. 538. An instruction that " the mere fact that the gate in question was not hung or pro- vided with latches or hooks, and that plain- tiff's animal escaped through such gate and was killed, does not of itself make this de- fendant liable," when the same matter is made a distinct condition of recovery in other instructions. Cooper v. Atchison, T. case, and negligence is presumed ; but that when the defendant introduces evidence and explains the fact of the killing, the plaintiff is required to prove by a pre- ponderance of testimony that the defendant was negligent." Fuller v. Port Royal &* A. R.Co., 2\So. Car. 132.— REVIEWING Dan- ner v. South Carolina R. Co., 4 Rich. (S. Car.) 329. — Quoted in Joyner v. South Carolina R. Co., 29 Am. & Eng. R. Cas. 258, 26 So. Car. 49, I S. E. Rep. 52. 677. Directing verdict.— T^^ court properly directed a verdict for defendant in the following cases: Where there is no evidence tending to prove plaintiff's case. Hoge v. Ohio River R. Co., 35 IV. Va. 562, 14 S. E. Rep. 152. Where an engineer is the only witness who testifies as to the circumstances at- tending the killing of a horse, and his evi- dence disproves all negligence, and he is not impeached or contradicted. Alabama G. S. R. Co. v. Roebuck, 23 Am. &» Eng. R. Cas. 176, 76 Ala. 277. Where proof of killing stock has made out a prima-facie case under the Dakota statute, but defendant's evidence shows be- yond a doubt that the killing was withr>ut fault on the part of the employes of the com- pany. Volkman v. Chicago, St. P., M. &• 0. R. Co., 3S Am.&*Eng. R. Cas. 204, 5 Dai. 69, 37 A'. IV. Rep. 731.— Approving Louisville & N. R. Co. V. Wainscott, 3 Bush. (Ky.) 149; Chicago, St. L. & N. O. R. Co. v. Packwood, 7 Am. & Eng. R. Cas. 584, 59 Miss. 280; Kentucky C. R. Co. v. Talbot, 78 Ky. 621 ; Durham v. Wilmington & W. R. Co.. 82 N. Car. 352.— Followed in Hu- ber V. Chicago, M. & St. P. R. Co., 6 Dak. 392- Wliere the evidence vindicates a railway company from all blame for an accident which resulted in the rashness of a mule in walking across the track in front of a rap- idly moving train. /Kansas City, M. d* B. R. Co. v. Myers, (Miss.) 7 So. Rep. 321. In an action to recover damages for in- juries to several mules, which were run over by a freight train before daybreak one frosty morning as the train was crossing a trestle over a small creek, when the engi- neer of the train testifies that he did not see the animals until he was within ten feet of them, and could not see them sooner be- cause of a dense fog about one hundred yards wide, which covered the track at that point, extending up and down the creek ; there being no evidence in conflict with his testimony, and none which authorized an inference inconsistent with it. Central R. &» B. Co. V. Ingram, 95 Ala. 1 52. Where in an action for killing a horse the undisputed evidence showed that the acci- dent occurred at a place where there was a down-grade; that the train was running from eighteen to twenty miles an hour ; that the horse came upon the track from five to ten rods ahead of the engine ; that the engi- neer immediately upon seeing the horse whistled and reversed the engine ; that the brakes were applied and everything was done possible to avert the accident ; that the en- gine and cars were provided with the neces- sary appliances for stopping them ; that the employes in charge of the train were experi- enced and competent ; and that the horse was hobbled at the time of the accident. Huber V. Chicago, M. &* St. P. R. Co., 40 Am. 6- Eng. R. Cas 188, 6 Dak. 392, 43 N. W. Rep. 819.— Approving Grundy V. Louisville & N. R. Co., (Ky.) 2 S. W. Rep. 899; Spaulding V. Chicago & N. W. R. Co., 33 Wis. 582; Kentucky C. R. Co. v. Talbot, 7 Am.& Eng. R. Cas. 585, 78 Ky. 621. Following Volk- man V. Chicago, St. P.M. A R. Co., 5 Dak. 69. Where in an action for killing a mule plaintiff testified that the animal's tracks showed that it had run some forty yards on the track before it was struck, and the en- gineer testified for the company that the animal was killed at night, and when first seen by the use of the headlight was standing on the track about fifty yards ahead of the engine, and then it was im- possible, at the rate of speed he was run- ning, to stop the train in time to avoid the accident, as the evidence was easily recon- cilable, and that of the engineer was prob- able. Louisville, N. O. &* T. R. Co. v. Tate, 70 Miss. 348, 12 So. Rep. 333. But where there is no direct evidence in an action for killing stock, but there are circumstances tending to show the killing, the jury must determine whether the cir- cumstantial evidence is sufficient or not, and it is error to give a peremptory in- struction to find for the defendant. South &- N. Ala. R. Co. V. Small, 70 Ala. 499. 578. Erroneous yet harmless in- structions.— (1) Generally. — A Connecti- cut statute provides that railroad com- panies shall construct cattle-guards at 344 ANIMALS, INJl'RIKS TO, 578. 1^1 highway crossings, nnless ihc railroad ( om- missioners are of the opinion that they are not necessary. When sued for killing stock through the alleged failure to construct such cattle-guards, the company introduced evidence that the commissioners had fre- quently passed over that portion of the road on official business and had never di- rected a cattle-guard ; but it appeared that their attention had never been specially called to it. The court instructed the jury that such evidence was not conclusive as to the opinion of the commissioners. Held, that as the evidence was scarcely admis- sible, the company could not complain of such instruction, it being more favorable than it was entitled to. Hulkley v. New York 6- N. H. A'. Co., 27 Conn. 479- In a suil for killing a cow, where no negligence was imputable to plaintiff, and consequently the doctrine of comparative negligence was not involved, an instruc- tion which states the rule in such case in- correctly will not be such an error as to reverse a just judgment ; nor will evidence that there was much trouble in the vicinity with the company. Rockford, R. I. 6*« St. L, R. Co. V. Rafferty, 73 ///. 58. (2) Relating to measure of damages.*— Where suit is brought to recover both for animals killed and injured, an objection that the instructions given as to the value of the animals injured does not state the measure of damages correctly is not ground for the reversal of a judgment for plaintifl for a total of $436, where the value of the cattle killed was alleged to be $425 and of those injured ^o. Lainiger v. Kansas City, St. J. &* C. B. R. Co., 41 Mo. App. 165. An error in instructing the jury In an action under the 43d section of the Missouri railroad act that they may allow interest on the value of animals killed is not ground for reversing a judgment where it appears that no interest was allowed. Wade v. Missouri Pac. R. Co., 19 Am.&»Eng. R. Cat. 586, 78 Mo. 362. (3) Relating to degree of care.\ — The owner of cattle which stray upon a track by reason of the insufficiency of a fence which the railroad company is under ob- ligation to maintain, who brings an action upon the case against the company for • See toit, 586-589. t See ante, 48, 58, 02, 116, 141. 186. killing the cattle by means of a loco- motive engine, is entitled to have the de- gree of care which the company is bound to exercise defined in a more strict manner than by instructing the jury that the com- pany is bound to the exercise of such care as a man of ordinary prudence would use, who was the owner of both the rail- road and the cattle; but if such instruction is given to the jury the defendant cannot complain. Quimby v. Vermont C. R. Co., 23 Vt. 387.— FoLLOWKU IN Sioux City & P. R, Co. V. Stout, 17 Wall. (U. S.) 657. Where plaintiiT produces several witnesses who testify that his mutes were killed by a train, in daylight, with nothing to obstruct the view ; that no eflort was niade to stop the train, but that, on tho other hand, the engineer seemed to be trying 10 run them down ; and that the mules ran a considerable distance ahead of the train on the track, which evidence is undisputed, as it goes to show a liability of the company in any event, it is harmless error to instruct the jury that the engineer was bound to use the " utmost care." St. Louis 6» S. /<". A'. Co. v. O'Loughlin, 49 Fed. Rep. 440, 4 U. S. App. 283, I C.C.A.iw. (4) Relating to company's failure to fence.* — Where a company is sued for killing stock by reason of a failure to fence its track within six months, as required by statute, a failure to instruct the jury that the com- pany was not liable for a failure to fence until the lapse of six months after the road was opened is harmless error, where the evidence clearly shows that the road had been used for much longer than six months. Chicago &* N. IV. R. Co. v. Dement, 44 ///. 74- An instruction to the effect that where cattle get on the track of a railroad on ac- count of the want of a fence where the right to fence exists, and are killed by the cars, the company is liable, whether the cattle were running at large at the time or not, was erroneous; but, since it was clearly shown on the trial that the cattle in question were running at large, the error could not have prejudiced defendant, and was no ground for reversal. Brent ner v. Chicago, M. &> St. P. R. Co., 19 Am. &* Fng. R. Cas. 448, 68 /o7t/a S30, 23 A^ IV. Rep. 245, 27 N. IV. Rep. 605. The error in charging the jury that to entitle the stock-owner to recover it is only * Sit ante. 122-130. AMMAI-S, IN JURIES TO, 571»-5M2. 345 necessary for liiin to |ii'i>ve Uie injury lo ur (lestructiuii uf his property, is cured by subsequent instructions that the plaintiff must prove tlie allegations of his complaint by a preponderance of evidence, and could only recover in case it appeared that the (olt while running at large passed onto de- fendant's track by reason of its omission or neglect to inclose its right of way with a sutHcient fence, and while so upon the track i>' a point where defendant had a right to fence was struck and injured by an engine. Ktxrr V. Chicago, R. I. &* P. R. Co., {Iowa) 54 A'. IV. Rep. 144.— RicviEWlNG Manwell V. Burlington, C. R. & N. R. Co., 80 Iowa 666, 4S N. W, Rep. 568. In an action lor injury to cattle under Missouri Rev. St. § 809, if the complaint is sulllcient and the fuels warrant a judgment for ihc piaintifT, the judgment will not be set aside because the instructions do not require the jury to find that the injury was occasioned by the company's failure to fence. Terry v. Missouri Pac, R. Co., 77 Mo. 254.— Following Moore v. Missouri I'ac. R. Co., 73 Mo. 438; Williams v. Mis- souri Pac. R. Co., 74 Mo. 453.— Approved IN Phi!lips V. Missouri Pac. R. Co., 24 Am. k Eng. R. Cas. 368, 86 Mo. 540. 8. Afnount of Recovery, 579. Generally.*— A jury need not fix the value of stock killed at the exact sum testified to by any one witness or by any two, but may find an intermediate sum. Jeffersonville, M. &'/. R. Co. v. Tull, yj Ind. 34 1 • The Indiana statute requiring company to fence, and awarding damages to the own- ers of animals killed or injured by the roll- ini; stock of any company, applies to ani- mals killed by freight as well as passenger trains. Indianapolis^* C. R. Co.v. Snelling, 16 Ind. 4iS. ft80. Coiiipeiisatory damageH.— The damages for stock killed by a railway through negligence merely, as a neglect to fence its track, are compensatory only. To authorize more, circum.stances of aggrava- tion must be shown. Toledo, P. &* W. R. Co. v. Johnston, 74 ///. 83, Consequential damages resulting from * Damages for killing or injuring animals, see note, 49 Am. & Enc. R. Cas. 563. Damages for stock liable to be killed, see note, 44 Am. & Eno. R. Cas. 113. fright to animals injured by falling through a bridge, not caused by actuiil collision, or any negligence or wilful misconduct on the part of the servants of the company, are not embraced in Nebraska Coinp. St. ch. 72, J§ I, 2. Burlington &* M. R. R. Co. v. Shoe- maker, 22 /////. %, 14 ///. App. 265. A reasonable attorney's feu is allowable under the statute only where a railroad company is sued to recover damages caused by its failure to erect a fence on each side of its track. Wabash. St. L. &* P. A'. Co. V. Xeikirk, 13 ///. App. 387. Chicago, M. Sf* St. P. A. Co. V. Phillips, 14 ///. App. 265. The owner of stock cannot recover their value and an attorney's fee, as provided by statute, unless it appears tliat the road was opened to use for at least six months be- fore the injury complained of. Peoria, D. &* K. A. Co. V. Purviance, 1 5 ///. App. 1 1 2. Under a statute allowing a plaintiff in an action for stock killed to recover reason- able attorney's fees, where there is a second trial he is entitled to such fees at both trials, though the second trial was granted by conse 't of his counsel. Indianapolis, B. &* W. A'. Co. V. Buckles, 21 ///. App. 181. The statute making a railway corporation liable to the owner of animals injured or killed on its track when it has failed to make and keep in repair fences, etc., and also for reasonable attorney's fees, is notice to such corporation, when sued for such an injury, that such attorney's fees will be claimed, and it is not necessary it should have any other notice. Peoria, D. &* E. A. Co. v. Duggan, 20 Am, 6- Eng. A. Cas. 489, 109 ///. 537, 50 Am. Aep. 619. The liability of a company for attorney's fees in an action to recover for an injury to animals, growing out of its neglect to fence its track, etc., under the Illinois act of 1879, arises at the same instant with its liability for damages; and such fees may be assessed in the same suit with the damages, the law not favoring a multiplicity of actions. Peoria, D. 6- E. A. Co, v. Duggan, 20 Am. ijr* Eng. A. Cas. 489, 109 ///. 537, 50 Am. Aep. 619. (2) Kansas— Missouri. — Where the find- ings show that an animal was injured on a railroad track through the failure of the company to fence the track and the negli- gence of the company in running and oper- ating the cars on its road, attorney's fees are recoverable under the statute of 1874. Central Branch U. P. R. Co. v. Nichols, 24 Kan. 242. See also Missouri Pac. R. Co. v. Abney, 30 Kan. 41, i Pac. Rep. 385. No attorney's fees can be allowed for de- fending in this court a proceeding in error to review a judgment rendered under the Kansas railroad stock law of 1874. Kansas Pac. A. Co. v. IVooii, 24 Kan. 619. Under ? 3613, Rev. St. Missouri, 1889,8 reasonable attorney's fee may be taxed in favor of a plaintitT prevailing in an action founded on ^ 2612, for injury to live stock which entered upon the company's right of way at a place not inclosed by a fence as required by law, and received injuries in consequence of being frightened by passing cars. Briggs v. St, Louis (S- S. F. A. Co. ,111 Mo. 168, 20 S. W. Rep. 32. ff8A. ExpeiiseN of litigious litiga- tion.— In an action for killing an animal, evidence that plaintifT offered to compro- mise, and that defendant offered a small sum which he would not accept, though weak, is still admissible to show special litigiousness on part of defendant, in order to the recov- ery of expenses of litigation under § 2891, Irwin's Rev. Code. Selma, A. 6- D. A. Co. V. Fleming, 48 Ga. 514. 58-••. App. (CVv. L'as.) 377. The measure uf damages is the market value of the animal killed. The market value at u given time and place may be proved by the evidence of cattle sales for like property, and evidence as tu a single sale is relevant and admissible, but not suf- ficient alone to establish the market value. In the absence of evidence to establish the market value, it is competent to prove what price had been ofTcred for the animal, as tending to show its market value. Houston &* T. C. A'. Co. V. LoUf;hbrii1ge, 1 Tex, App. (Civ. Ciis.) 754. Under Texas Kev. St. art 4245, declaring that railroad companies shall be liable to the owner for the value of all stock killed or injured, the " value " contemplated by the statute is the measure of damage, and this value is ordiNarily to be ascertained by proof of the price at which such animals are bought and sold ; if there is a market for such animals, the market price is the meas- ure of value ; if there is no market at the place, evidence may be admitted of the price at the nearest market. S/. Louis, A. &* T. R. Co. v. Pickens, 3 Tex. App. (Civ. CrtJ.) 471. In an action for the recovery of damages, under the Kansas stock law of 1874, for the killing of a cow, the plaintiff is entitled to recover the market value of the animal. The jury, in estimating this value, may con- sider all the qualities of the animal which affect her market value, and are not limited in their inquiry to the value of the cow for beef or milking purposes. Central Branch U. P. R. Co. V. Nichols, 24 Kan. 242. Upon an issue in respect to the value of a chattel, in an action to recover for the de- struction thereof, the measure of damages is its market value. Evidence of its intrinsic qualities is not, as a rule, alone sufficient to establish such value. Additional evidence is required, and that which is commonly re- ceived is evidence of th«- opinions of wit- nesses shown to be competent to speak on the subject, and which is to be considered and weighed by the jury in connection with the evidence of the description of the prop- erty. Harrow v. St. Paul «S- I). R. Co., 43 Minn. 71, 44 A^- W- Hep. 881. The measure of damages is the value of the stock when killed; that value is the market value of such stock, not some |>«'- culiar or particular value attached to it by plaintiff. Uullington v. A'eii'Port AWw <»- A/, r. R. Co., 32 /F. ya. 436. 9 a. E. Rep. 876. rt88. wlicro iiijiirod Htock In retaliie. value of live animal lesH tliv value of the liide or beef.*— The measure of damages, when a railroad company negligently kills a cow, is the dif- ference between the value of the cow alive and its value for beef. Roing v. Raleijih &^ G. R. Co.. 91 A'. Car. 199.— Following Roberts v. Richmond & D. R. Co., 20 Am. & Eng. R. Cas. 473, 88 N.Car. ^60.— Roberts V. Richmond &* L). R. Co., 20 Am. &* JCng. R. Cas. 473, 88 A'. Car. 560.— FOLLOWED IN Doing V. Raleigh & G. R. Co., 91 N. Car. 199. Reconcilkd in Godwin v. Wilming- ton & W. R. Co., 104 N. Car. 146. 10 S. E. Rep. 136. In an action for an animal killed by neg- ligence, in which there is no evidence of the value of the dead body, the measure of damages is the value of the animal less a price received by the owner for the hide. Godwin v. Wilmington &* IV. R. Co., 104 A'. Car. 146, 10 5. E. Rep. 136.— RECONCILING Roberts v. Richmond & D. R. Co., 20 Am. & Eng. R. Cas. 473. 88 N. Car. 560. Where a company is found liable for kill- ing stock, if it appears that the owner has used the dead body or given it away, the company is entitled to have the value of the body deducted in estimating the damages. Case V. St. Louis 6- S. F. R. Co., 1 3 Atn. &> Eng. R. Cas. 564, 75 Afo. 668. If an ox is killed by a company, and the owner is informed of the accident in such time that he could by reasonable diligence have used the hide or the meat for beef, the value of the hide and of the meat should, in assessing damages against the railroad company, be deducted from the value of the ox when killed. Memphis &* C. R. Co. v. Hembree, 35 Am.&* Eng. R. Cas. 128, 84/1/0. 182, 4 So. Rep. 392.— Following Georgia Pac. R. Co. V. Fullerton, 79 Ala. 298. * Value of animal after injury, see note, 35 AM. ft Eno. R. Cas. 130. i tem m ANIMALS, INJURIES TO, ftIM). 340 In an action for killing plaintiff's heifer he joicied a count for trover, unci a verdict was rendered for the value of the heifer as beef, and not for her value before the injury. Held, error for which a new trial should be ordered. Sampsell v. Chicitgo &* G. T, A". Co., 13 Am. &* Eng, A'. Cus, 591, 51 Mn/i, Cos, 17 N. W. Rep. 77. 5»0. Uiity of piuiiititr to keep (IniiiageH iin Iowrh poMHible.— (i) Gett- er a fly.— 1\\c owner of cattle negligently killed by a railroad train can only recover the difference between their value before the injury and immediately thereafter, and it is his duty to use reasonable effort to pre- vent loss after the injury, and reduce the damage as much as possible; and where such cattle are available after the injury, he cannot abandon them and then claim their full value. Harrison v. Missouri Pac. R. Co., 88 Mo. 625.— QuorrNO Illinois C. R. Co. V. Finnigan, 31 III. 649. Where animals fit for food are killed the owner should dispose of them to the best advantage, and if he fails to do so without excuse he cannot recover full value. The proper measure of damages in such case is the ditTerence between the value of the cattle living and dead. Illinois C. R. Co. v. Finnigan, 21 ///. 646.— Quoted in Harrison V. Missouri Pac. R. Co., 88 Mo. 625. And in such a case the owner is entitled to a reasonable time after the killing within which to dispose of the animals. Toledo, P. &* IV. R. Co. V. Parker, 49 ///. 385. What is a reasonable time is a question for the jury; but taking charge of a dead animal by the company's employes on the evening of the same day that it was killed and burying it is not a reasonable time. Toledo, P. 6- W. R. Co. v. Parker, 49 ///. 385. The measure of damages for cattle killed is the difference between the value of the animals when living and when dead, and it is only where the body is worthless that the owner may abandon it and recover the full value. If by reasonable diligence he can dispose of it he should do so, and the amount realized should be deducted from the full value. Georgia Pac. R. Co. v. Ful- lerlon, 79 Ala. 298.— DISTINGUISHING Ohio & M. R. Co. V. Hays, 35 Ind. 173.— Foi,- LOWKi) IN Memphis & C. R. Co. v. Hem- bree, 3S Am. & Eng. R. Gas. 128, 84 Ala. 182, 4 So. Rep. 392. Where the value of a milch cow is de- stroyed as such, but she is still valuable for beef, the owner cannot abandon her and re- cover full value from the t.iilrciad company injuring her. though notice of ihc intention to abandon be givt n the company. Har- rison V. Missouri Pac. R. Co., 88 .\/o. 625. (2) When owner way ahandon animal. — The owner of an animal killed bv a loco- motive at a point on a railroad where the road is not fenced may abandon the animal; and the company will be liable for the value of an animal when injured. Ohio &* M. R, Co. v. Hays, 35 ///2. What may not be hIiowii in niltluatloii.— The jury having been in- structed that the owner of an injured ani- mal must use ordinary care, judgment, and prudence in taking care of it and in em- ploying a veterinary surgeon to treat it, were further instructed that such owner " is not responsible for all mistakes made, if any are made, by such surgeon." Held, no error. Page V. Sumpter, 53 Wis. 652, 11 N. W. Rep. 60. 503. ExccMgivo damages.— The meas- ure of plaintiff's recovery in an action for killing stock is limited to the amount claimed, and where the judgment is in ex- cess of that amount it will be reversed. Horton v. St. Louis, I. M. &- S. A\ Co., 83 A/o. 541. Where the judgment as to the value of an animal alleged to have been killed exceeds its market value as shown by the testimony, it is excessive and will be set aside, /aciit- sonviile, T. &* K. W. R. Co. v. Garrison, 30 Fla. 431, II So. Rep. 932. But if the finding of the jury is slightly in advance of what the court would have assessed the damages at, the verdict will not, for such reason, be disturbed. Rock- ford, R. /. al&* St.J. R. Co., 58 Mo. 480. Although the jury's finding is 'u\ excess of the amount claimed, an appellate court will not presume that the jury intended to find double damages where the record recites * For note on the Missouri double damage act fnr stock killed, see 52 Am. Rep. 3)5. Aitioii (or double come frightened while on the track and are injured by jumping oflf. Lafferty v. Hanni" bal &» St. J, R. Co., 44 Mo. 291. — Distin- guishing Coy V. Utica & S. R. Co., 23 Barb. (N. Y.) 643. Following Peru & I. R. Co. V. Haskett, 10 Ind. 409. Nor fol- lowing Moshier 7/.Utica & S. R. Co.. 8 Barb. (N. Y.) 427.— Not followed in Meeker V. Northern Pac. R. Co., 21 Oreg. 513. Re- viewed IN Young :'. St. Louis, K. C. & N. R. Co., 44 Iowa 172. A company is liable for double damages for injuries to cattle entering upon the rail- way tracks by reason of a failure to erect fences between the railway tracks and a contiguous parallel public highway. Patton V. West End N. G. R. Co., 14 Mo. App. 589. Under Mo. Rev. St. 1889, § 261 1, the owner of stock killed may recover double damageswhen the killing occurs where the track runs through uninclosed lands, whether the stock went on the track from such lands or not, and without reference as to whether he is an adjoining owner or not. Jackson v. St. Louis, /, M. &- S. R. Co., 43 ''"^^- App. 324. —Distinguishing Ferris v. St. Louis 4 H. R. Co., 30 Mo. App. 122. 604. When suoh damapres may not be recovered.— In an action under Mo. Rev. St. § 809, for double damages for in- juries to an animal caused by a failure to fence, it is enor to charge that plaintiff r il' III !-'CS '<'"' I !! If fl 354 ANIMALS, INJURIES TO, «Ort. may recover if the animal was injured where the tracit was not fenced, without regard to where it entered on the track. Foste, v. St. Louis, J. Af. <&* S. A\ Co., 90 Afo. 1 16, 2 .V. JV. Kep. 138. Compare Snider v. Current River R. Co., 53 Mo. App. 638. hatman v. Kansas City, Ft. S. 6- M. R. Co., 53 Mo. App.xi. Where a complaint is filed under § 43 of the Missouri act, giving double damages, plaintiff must recover, if at all, under that section. He cannot recover under § 5 of the dama^^e act, or on a cause of action at com- mon law. Luckie v. Chicago &* A. A. Co., 67 Mo. 245. Under VVagn. Mo. St. p. 310, § 43, pro- viding for double t'amages for stock killed, a company is not liable wherr the killing occurs wlicre the track cosses a pri- vate road, or v nerc it runs through unin- closcd lands, fither timbered or from which the timber 'ins been renjoved; and this is so though it runs through a narrow strip of unincloscd lands, with adjoining inclosed lands on either side of the strip. Walton v. St. Louis, I. Af. &» S. R. Co., 67 Mo. 56.— Distinguishing and criticising Roi> inson i>. Chicago & A. R. C.>., 57 Mo. 494. — DiSTlNGUisHKP IN Morris v. Hannibal * St. J. R. Co.. 19 Am. & Eng. R. Cas. 666, 79 Mo. 367. Followed in Schable v. Han- nibal & St. J. R. Co., 69 Mo. 91. Quoted IN Jenkins 7/. Chicago & A. R. Co., 27 Mo. App. 578. Reconcilkd in Rutledge v. Hannibal & St. ]. R. Co., 78 Mo. 286. Re- viewed IN Roberts T/. Quincy, O. & K. C. R. Co., 43 Mo. App. 287. Uninclosed lands which have been cleared of timber are not "prairie-lands," within the meaning of Wagn. Mo. St. p. 310, § 43, providing for double damages for stock killed; and a railroad company is not liable in double damages for cattle killed on such lands. Schable v. Hannibal^ St. J. R. Co., 69 Afo. 91.— Following Walton v. St. Louis, I. M. k S. R. Co.. 67 Mo. 56. Only persons whose lands adjoin a rail- road track can recover the double damages for stock killed, under the Missouri statute; and a person whose cattle strayed from his grounds, which do not adjoin the track, to other grounds which do adjoin, and thence to the track, cannot recover double damages by reason of the company failing to erect and maintain proper fences. Ells V. Pacific R. Co., 55 Mo. 278. Where it appears that plaintiff's lands do not border a railroad, and that his horse went from his grounds through thu fields of an adjoining (jwnerand thence on the track, he cannot recover the double damages pro- vided by statute for killing the horse, unless he prove that lie was in the adjoining pro- prietor's field by permission, or that the field was inclosed by a lawful fence. John- son v. Missouri Pac. R. Co., 23 Atn. &* Eng. R. Cas. 180, 80 Afo. 620.— Quoting and Fol- lowing Harrington v. Chicago, R. I. & V. R. Co., 71 Mo. 384— Applied in Branden- burg V. St. Louis & S. F. R. Co., 44 Mo. App. 224. Where it appeared that one of its trains was wrecked where the track ran through plaintiff's fielo ; that there was no fence along the track ; rh^t the hogs and cattle in the train were necessarily turned into the field in the attemp* to extricate them froiii the wreck ; that they were collected to- gether and driven away ; and that while in the fields they damaged the crops: and there was no allegation that the daniiigc was caused by the fi ilure of the railroad to construct or maintai; 1 fences or cattle-guaids as rcquiref*. by law — held, that the statute (Wagn. Mo. St. 310-11,? 43) did not con template the allowance of double damages. Grau V. St. Louis, K. C. &* N. R. Co., 54 Afo. 240, 1 2 Am. Ry. Rep. 376. When the evidence is to the effect merely that an animal was not killed at a public or private road, and does not show the char- acter of the land where the animal got upon the track or where it was killed, it will not warrant a recovery against a rail- road company for double damages for the killing of stock. Sayer v. Kansas City, P't S. 6- M. R. Co., 43 Mo. App. 360.— Follow- ing Kinion v. Kansas City, Ft. S. & M. R. Co., 39 Mo. App. 382. Only thp adjoining owner or persons claimin)^ under him can recover, under Mo. Rev. St. § 809, double damages for in- jury to cattle which go upon the railroad track because of the insufficiency of the rail- road fence Smith v. St. Louis, I. Af. &* S. R. Co., 25 Mo. App. ii3.~FoLLOWiNO Car- penter V. St. Louis, I. M. & S. R. Co.. 25 Mo. App. no. \Q. Procedure in Justices' Courts. 005. Genernlly.— Before the enactment of the Georgia statute of 1843, amending the act of 1840, defining liability of railroads for stock killed or wounded and to regulate f^.l ANIMALS, INJURIES TO, UOU, U07. 355 11 the procedure in sucli cases, the justices' courts had no jurisdiction in any case souiidin;^ in damages for any trespass on tiie person or property. Girlman v. Central R. &^ B. Co., I Ga. 173. The statute (N. C. Rev. St. ch. 17, g 7) •^iviii^ jurisdiction to a magistrate in cases of stocic killed on a railroad does not alter the rules of the common law in relation to such injuries. Gar r is v. Portsmouth &* R. R. Co., 2 hid. (X. Car.) 324. <(0(l. Jiiri»>-4li<*tioii must aflirnia- tivHjr nppoar. - In an action hefbre a justice for d >uble damages for killing stock, the fact that nnl fact be averred in the statement ; it mu;t also be shown by the evidence. Back- jnstoe V. Wabasf't. St. L. &* P. K. Co., 86 .\fo. 40-; affirming 23 Mo. App. 148. — FoL- i.owiNCi Mitchell v. Missouri Pac. R. Co., 82 Mo. 106. QuorrNO Nail %>. St. Louis, K. C. & N. R. Co., 59 Mo. 112.— Di.sTiNc.uiSHED IN Emmerson v. St. Louis & H. R. Co., 35 Mo. App. 621. Followed in Roberts v. Missouri Pac. R. Co., 19 Mo. App. 649; Palmer v, Missouri Pac. R. Co., 21 Mo. App. 437- Where suit is commenced before a justice t) recover for stock killed, and the state- ment filed by plaintiff before the justice sliows that the injury occurred in the same township where suit was brought, and it ap- peared by evidence at what point it oc- curred, the justice obtains jurisdiction, and a judgment on appeal will not be reversed because the circuit court, in a trial there, refused to instruct that proof of venue must jiirirmatively appear to entitle plainiifT to a verdict. Nail v. St. Louis, K. C. &» N. A\ Co., 59 Mo. 1 12, 8 ..///. Ry. Rep. 447.— CRiTt- ( isEU IN Backenstoe 7/. Wabash, St. L. A P. R. Co., 23 Mo. App. 148. Quoted in Backenstoe v. Wabash, St. L. & P. R. Co., 86 Mo. 492. Under Mo. Rev. St. § 3060, statements lilefl in actions hefore justices of the peace may be amended in the circuit court so as 10 supply any deficiency or omission. Where suit is brought before a justice to re- I over for stock killed, a defect in such state- ment, ill failing to show that the justice has i tr '^diction, may be cured by amendment in 11 I ircnit court under the above statute. Vaug/in V. Missouri Pac, R. Co., 17 Mo. App. 4. Evidence dehors the record of facts which the law does not require to appear of record may be received in aid of a justice's juris- diction ; hence, although a justice's tran- script fails to show the venue in a local ac- tion, as in an action for damages for stock killed by a railway train, it may be proved in the circuit court on appeal. St. Louis, L M. &» S. R. Co. V. Lindsay, 55 Ark. 281, 18 .V. W. Rep. 59. 007. Jurisdiction hh dependent upon amount.'"— In Indiana a justice of the peace has no jurisdiction in an action for killing a horse where the sum demanded is over one hundred dollars. Evansville &* C. R. Co. V. R'arjfus, 10 Jnd. 182. Query, whether the rule that justices have no jurisdiction in actions of tort where the damages claimed exceed fifty dollars, is inapplicable in a case of stock killed or injured by a railroad ; and whctii.tr § 171 1, Ala. Code of 1876, is constitutional. Alabama G. S. R. Co. v. Christian, 82 Ala. 307, I So. Rep. 121. In Georgia tliecivil jurisdiction of justices of the peace, under the constitution and laws, extends to $100, which is held to in- clude actions against railroad companies for killing stock. The remedy provided by Ga. Code, § 3043, is merely riiinulative, and does not oust general jurisdiction under the constitution and statutes. Western &* A. R. Co. V. Broivn, 58 G(>. 534. In Missouri justices of the peace have jurisdiction over suits against railroads for killing, maiiiiing, etc., cattle, etc., in their respective townships, without regard to the value of the animals or the amount of dam- ages claimed. Hudson v. .SV, Louis, K. C. &* N. R. Co., 53 .1A». 525. -Followed in Parish v. Missouri, K. & T. R. Co., 63 Mo. 284. — Manuel v. Missouri Pac. R. Co., 19 Mo. App. 631. The provision of Mo. Rev. St. 1879, § 2835, conferring jurisdiction upon justices ii; ac- tions for killingstock, without regard to the value of the animal killed or the amount claimed, is constitutional. Steele v. Mi.i- souri Pac. R. Co., 84 Mo. 57. — Following Humes V. Missouri Pac. R. Co., 82 Mo. 221. —Dent V. St. Louis. L M. &' .?. R. Co., 83 * See ante. 293. m- '4 356 ANIMALS, INJURIES TO, «08. il/t;. 496.— Reviewing Fitterling v. Missouri Pac. R. Co.. 79 Mo. 504. Under Missouri act of 1861, entitled " An act to extend the jurisdiction of justices of the peace," giving them concurrent jurisdic- tion with the circuit courts in actions for stock killed or injured by railroads, but limit- ing the action to some justice of the township where the injury was committed, the fact that the suit is under said statute must ap- pear on the face of the papers in order to confer jurisdictiofi. Hansberger v. Ptuific R. Co., 43 Mo 196. — DiSTINGUISHKD IN Minter v. Hannibal & St. J. R. Co., 82 Mo. 128. FoLi.owKi) IN Roberts v. Missouri Pac. R. Co., 19 Mo. App. 649; Backenstoe V. Wabash. St. L. k P. R. Co., 23 Mo. App. 148. yt'OTKn IN Rohland v. St. Louis & S. F. R. Co., 89 Mo. 180. Reviewed in Pol- hans V. Atchison, T. & S. F. R. Co., 45 Mo. App. 153- The third subdivision of § 3 of the act concerning the jurisdiction of justices of the peace (Wagn. Mo. St. 808) provides that justices shall have concurrent jurisdic- tion with the circuit courts in all actions for injuries to persons or to perso.al or real property where the damages shall ex- ceed $20 and not exceed $jo. The fifth subdivision provides that the jurisdiction shall be concurrent in all actions a^Es^inst any railroad company to recover damages for the killing or injuring of live stock, without regard to the value of such animals or the amount of damages claimed. Held, that an action to recover a combined claim for killing a horse and injuries to the har- ness must be under said subdivision 3, and judgment must be limited to (50; and that the claim for killing the horse cannot be made undn.'r subdivision 5, and the claim for damages to the harness under subdivision 3. Dillardv. St. Louis, K. C. &* N. A'. Co., 1% Mo. 69.-— DisTiNdUisnED IN Fenton v. St. Louis, K. C. & N. R. Co., 72 Mo. 259. 008. Jurisdiction aH (lepciidciit upon townHhIp Huoh.— (i) Justices 07vn township. -K justice ol the peace hns no juiisdiniitn outside of his own township, and there can be no recovery in an action (or killing lock, unless the proofs show that the animals wrnt upon the track or were injured in the township where suit is brought. Geltz v. St. Louis &^ S. F R. Co., 38 Mo. App. 579. An action before a ju«ii S. F. R. Co., 89 Mo. 180, I S. W. Rep, 147.— Quoting Hans- bcrger v. Pacific R. Co., 43 Mo. 196. — f^ing V. Chicago, R. /. &» P. R. Co., 90 Mo. 520, 3 .v. /C. Rep. 217. Mitchell v. Missouri Pac. R. Co. 82 Mo. 106.— Followed in Backen- stoe V. Wabash, St. L. & P. R. Co., 86 Mo. \<)2. Reviewed in Roberts v. Missouri I'ac. R. Co., 19 Mo. App. 649; Backenstoe V. Wabash. St. L. & P, R.Co., 23 Mo. App. \\i.-lVhitesides v. St. Louis, K. &* N. IV. R. Co., 49 Mo. App. 250. Palmer v. Mis- souri Pac. R. Co., 21 Mo. App. 437.— Fol- lowing Backenstoe v. Wabash, St. L. & P. R, Co., 23 Mo. App. 148. — Wright v. Hannibal &> St. J. R. Co., 25 Mo. App. 236. in construing Mo. Rev. St. $ 2835, and the fifth subdivision of § 2839 the court held : That, taking the two sections together, the jurisdiction of justices of the peace in actions against railroad companies to re- cover damages for killing or injuring horses * • * or other animals is still local, with the locality in which the jurisdiction is exercised extended so as to include any township ad- joinii^ tiie f /nship in which the horses, etc., may be injured, etc., and no further; that this jurisdiction, as thus extended, is still purely and entirely local, "without re- gard to the value of such animals or the amount claimed for killing or injuring the Slime." Creason v. Wabash, St. L. » P. R. Co., \T Mo. App. III. -Following Iba ?'. Han- nibal & St. j. R. Co., 45 Mo. 469, Haggard V. Atlantic & P. R. Co., 63 Mo. 303. Mo. Rev. St. § 2839, provides that " any action against a railroad company for kill- ing or injuring horses, mules, cattle, or other animals, shall be brought before a justice of the peace of the township in which the in- jury happened, or in an adjoining township." Held, that the words "or in an adjoining township" must be construed to mean an adjoining township in the same county only. Creason v. Wabash, St. L. &* P. R. Co., 17 Mo. App. III. A justice of a city formed from territory lying wholly within a township has jurisdic- tion of a suit against a defendant who re- sides in a township adjoining said first- named township. Jebb v. Chicago 6- G. T. R. Co., 31 Am. (S- Fng. R. Cas. 532, 67 Mich. 160, 10 West. Rep. 905. 34 A'. W. Rep. 538. Ofkvt eiitricM. — In an action to recover tiie value of cattle killed by a railroad company, which is begun before a justice and is taken on appeal to the circuit court, the action should not be dismissed because the justice had not copied the cause of action upon his docket. Judian- apolis &* C. A'. Co. v. '/oon, 20 /ml. 230. — Followed in Indiana|K)lis & C. R. Co. v. Smither, 20 Ind. 228. tttii. Wlinii qiieHtioii ofjiirisdictioii iiiiiHt be raiMMl.— If an action to recover damages for killing a cow of value more than $50 is brought against a railroad com* pany in a justice's court, objection to his want of jurisdiction must be made before him, and cannot be raised for the first time in the appellate court. IVestern K. Co. v. Lasarus, 88 Ala. 453. 6 So. Rep. 877. U14. Discretion of Justice.— In an action for the value of a cow killed by one of the defendant's engines, the plaintiff, after he had rested his case and the defend- ant had introduced part of its testimony, applied to the justice for leave to with- draw his rest for the purpose of proving the value of the cow, which request was granted — hild, not an abuse of discretion. Chicago, B. a 304. In civil actions originating before a jus- tice, the complaint is sufficient on demur- rer if it states enough facts to inform the defendant of the nature of the plaintiff's action, and is so explicit that a judgment thereon will constitute a bar to another action for the same cause. Louiyville, N. A. 6- C. R. Co. V. Zink, 92 Ind. 406.— FoL- • See ante, 326-370. Pltading in action before justice of the pca( e, see note, 19 Am. ft Eno. R. Cas. 605. i.uwF.n IN Louisville, N. A. & C. R. Co. v. Zink, 93 Ind. 602. A complaint before a justice against a company averring that on, etc., at, etc., the defendant's servants wilfully and negli- gently, and without any fault of the plain- titr, ran its cars upon plaintifT's mare, whereby, etc., is sufficient after verdict. Pennsylvania Co. v. Rusie, 95 Ind. 236. A complaint before a justice for killing stock alleged "that the defendant, on or about," etc., "at and in siiid county of," etc., "and state of Indiana, by its loco- motive and train of cars then running on its railroad, at a point on its said road in said county where its railroad track was not securely fenced, ran over and killed two hogs of the plaintiff of the value of fifty dollars; whereof," -etc. Held, that the complaint stated sufficient facts. Belle/on- taine R. Co. v. Reed, 33 Ind. ^76. The Kansas stock law of 1874 makes pro- vision for the recovery of a reasonable at- torney's fee for the prosecution of a suit for damages for injuring or killing stock in the operation of railroads; therefore there is less reason for favoring insufhcieiit and de- fective complaints in those actions than in the ordinary cases commenced in justices' courts. St. Louis &• S. F. R. Co. v. Byron, 24 Kan. 350. A statement setting forth the ownership of a steer, the fact that it was killed by the negligence of defendant's servants, and the amount of the damage — held, to set forth a good cause of action for the negligent kill- ing of the steer by a company. Kendig v. Chicago, R. I. i is be- fore a justice, a statement which advises the ANIMALS, INJURIKS TO, (»1U,<(17. :)5!l defendant o( the nature of plaintiff's claim, and wliicli is specific enough to make a judgment a bar to a subsequent action, is sufficient. Norton v. Hannibal &* St. J. A'. Co., 48 Mo. 387. Ill an action before a justice to recover double damages for stuck killed, a state- ment filed by pluintifl showing that the animals "strayed upon the track of said railroad on or near a farm crossing, at a point in the line of said railroad where it was not fenced, and where the crossing and cattle-guards were not made as the law re- quires, and that defendant so carelessly and negligently ran and managed its cars and locomotives that they ran against and over tlie animals and killed them," is sufficient. lieUher v. Missouri Pac. R. Co., 75 Mo. 514. —Distinguishing Sloan v. Missouri Pac. R. Co., 74 Mo. 47. Following Edwards V. Kansas City, St. J. & C. B. R. Co., 74 Mo. 117.— Followed in Campbell 7/. Mis- souri Pac. R. Co., 78 Mo. 639; Blakely z/. Hannibal & St. J. R. Co.. 79 Mo. 388. Quoted in Vail v. Kansas City, C. & S. R. Co., 28 Mo. App. 372. Reviewed in Jack- son V. St. Louis, I. M. & S. R. Co., 80 Mo. '47- 016. Must charge negligence.— A complaint or statement filed on appeal from a justice's court, in an action to recover damages from a railroad for killing stock, which fails to aver that the killing was neg- ligent or the result of negligence on the part of the company, its servants or agents, does not contain a substat,tial cause of ac- tion. Mobile &* O. R. Co. v. Williams, 53 Ala. 595, 13 Am. Ry. Rep. 153.— Quoted in Soutli & N. Ala. R. Co. v. Hagood, 53 Ala. 647. 017. Laying the venue*— County or township.— (I) CV««/y.— The complaint in an action before a justice, to recover for stock killed, should aver that they were killed in the county, and such averment must be supported by pro-jf. Indianapolis, Sf C. R. Co. V. Wilsey, 20 Ind. 229. — Criti- cised in Indianapolis & M. R. Co. v. Solo- mon, 23 Ind. 534. Followed in Indian- apolis & C. R. Co. 7/. Smither, 20 Ind. 228; Indianapolis & C. R. Co. v. Toon, 20 Ind. 230; Indianapolis & C. R. Co. v. Brinkman, 30 Ind. 230. A statement or complaint filed in a suit l>efore a justice against a railroad company » See ante, 329. for killing stock, stating that " a locomotive owned and used by the defendant on its road in the county of F. '" ♦ ♦ killed one hog of the plaintifT, and that at the time and place of the killing the road was not fenced," is sufficient to show that the animal was killed in F. county by the defendant. White Water Valley R. Co. v. Quick, 30 Ind. 384- (2) Justice's own township. — Where the jurisdiction of justices in actions to recover for stock killed is confined to cases where the killing occurs in their township, a state- ment filed with the justice must show in which town.ship the killing took place. And this cannot be established by reference to a writ which only shows where the de- fendant is served and the township where the justice presides. Haggard v. Atlantic 6- P. R. Co., 63 Mo. 302. — Followed in Creason v. Wabash, St. L. & P. R. Co., 17 Mo. App. Ill ; Roberts 7'. Missouri Pac. R. Co., 19 Mo. App. 649. Where suit is brought under Mo. Rev. St. 1879, § 809, to recover for stock killed, it should be averred that the killing was in the township where suit was brought ; but where there is no specific allegation of this fact, and the defendant appears and goes to trial, and the record shows that the killing was in such township, the defect in the pleadings will be considered cured on appeal. Kron- ski V. Missouri Pac. R. Co., 77 Mo. 362. Where an action is commenced before a justice to recover under the statute double damages for stock killed, a statement filed by plaintid with the justice must show that the stock were killed in the township where suit is brought. Cummings v. St. Louis, I. M. &* S. R. Co. ,70 Mo. 570.— Followed in Hines V. Missouri Pac. R. Co., 86 Mo. 629. Where a suit is under the Missouri Rail- way act, § 43, before a justice to recover damages for stock killed, it must appear either from his transcript or a statement filed with him that the killing occurred in the township in which suit is brought in order to give him juri.sdiction,and if it does not, the question of jurisdiction may be raised for the first time on appeal. Barnett v. Atlantic &* P. R. Co., 68 Mo. 56.— Fol- lowed IN Thomason v. St. Louis. I. M. & S. R. Co., 74 Mo. 560; Fields 7/. Wabash. St. L. & P. R. Co., 80 Mo. 203. (3) Adjoining township. — In a suit before a justice, under the Missouri statute, for the killing of the plaintiff's cow in a township W\ V 4 t I 800 ANIMALS, INJUKIi'S TO. UIH.HIU. • ii other than that in which the suit is broiifjht, the fact tliat the twt) townships adjoin each other is jurisdictionui, and must be both averred and proved. ll'iseiitan v. St. Louis, A. &* T. N. Co., 30 Mo. App. 516. Kinion v. Kansas City, H. &• A/. A'. Co., 30 A/o. App. 573. Jones V. CMicaf^o, B. &* A'. C. A'. Co., 52 Afo. App, 381. Under section 2838, Missouri Kcv. St. 1879, fixing the jurisdiction of justices' courts in actions against railroads fur Icilliiig stock in the township where the injury hap- pened, or in any adjoining township, where the action is brouj^ht in an adjoining town- ship, plaintifl must allege and prove the township in which the injury happened, and that the township in wliich the action is brought adjoins the township in which the Injury happened ; and where the records show no evidence of such facts the court must hold that there was no jurisdiction in the court below, and reverse and remand the cause. Jeivett v. Kansas City, C. Sh S. R, Co., 38 Mo. App. 48. Briggs v. St. Louis Eng. R. Cas. 589, 81 A/o. 43.— Distinguishing Jackson?/. Rutland & B. R. Co., 25 Vt. 150; Dayton H M. R. Co. v. Miami County In- firmary, 32 Ohio St. 566. Following Nance v. St. Louis, I. M. & S. R. Co., 79 Mo. 196; Jackson v. St. Louis, I. M. & S. R. Co., 80 Mo. 147. Quoting Edwards v. Kan- sas City, St. J. & C. B. R. Co., 74 Mo. 123. The statement in an action for statutory damages for the killing of stock by a railway company must allege that the stock came upon the railroad track at a place where the company was under a legal obligation to erect and maintain fences, and was in- jured owing to the company's failure to observe this obligation. But where this appears from the statement by reasonable inference, a judgment again 't the company will be upheld, /ones v. St. Louis, I. M. &* S.R. Co., 44 A/o. App. 15. Where the statement under § 809, Rev. St. does not in clear and explicit terms charge that the animal killed came upon the right of way at a place where it was the defendant's duty to fence, but contains that averment by fair intendment sufficient to make it good after verdict, and no objec- tion of insufficiency was offered at the trial, an objection to the statement on that ac- count cannot be sustained on appeal, //en- son v. St. Louis, I. A/. &* S. R. Co., 34 A/o. App. 636. (2) Insufficient. — A statement before a justice in an action under Mo. Rev. St. $809, for double damages for killing stock, is in- sufficient which fails to allege that the stock entered upon the track at a point where the same passes through, along, or adjoining inclosed or cultivated fields or uninclosed lands where, by law, the railroad is required to fence. Ward v. St. Louis, /. M. 6* S. R. Co., 91 Mo. 168.— FoLLowKD in Wood i>. Kansas City, Ft. S. & M. R. Co., 39 Mo. ANIMALS, INJURIiiS TO, 020.02I. Ml A pp. 6y—MaHM v. St. Louis, I. A/. tS- .V. A'. Co., 87 A/o. J78. A statement under the fifth section of the damage act (Mo. Rev. St. $ 2134) for killing stock is iiisullicient which does not allege that the injury occurred at a place where the railroad track might have been inclosed by a lawful fence. Ctarkson v. H'ahash, St. L. 6- /'. /i'. Co., 84 Mo. 583.— guoiiNG Tiarks r. St. Louis & I. M. R, Co., 58 Mo. 45- Where action is brought to recover single damages for killing plaintiff's cow, and by tlie statement it is not averred that the place where the cow went upon tlie railroad track was where defendant might have in- closed the road with a lawful fence, but it is only averred that the road " was not inclosed with a lawful fence," this is not sufficient. lioyli V, Missouri Fac. R, Co., 21 Mo, App. 416. 020. and tliat mieli place waH not a pnhlic croHMini; or within a city or town.* — A statement in an action before a justice under Missouri railroad law, D 43, to recover for stock killed, must aver that the killing was not within the limits of an incorporated town. Schulle v. St. Louis, I. M. &* S. A\ Co.. 76 Mo. 324.— Following Rowland v. St. Louis, L M. & S. R. Co., 73 Mo. 619.— DiSTiNGUtsHKD IN Campbell z>. Missouri Pac. R. Co., 78 Mo. 639; Williams V. Hannibal & St. J. R. Co., 80 Mo. 597. Followed in Holland 7'. West End N. G. R.Co., 16 Mo. App. 172. In an action under Mo. Rev. St. § 809, for double damages for killing stock, it is not necessary that the stat(>ment should contain an expressaverment that the point at which the animal entered upon the track was not within the corporate limits of an incorpo- rated city or town. It is sufficient if that fact appears by necessary implication from the other facts stated. Ringo v. St, Louis, I, M. W. R. Co. v. Eid- son, 51 Ind. 67. (2) Michigan. — A declaration which charges that defendant is a corporation owning a railroad in a given township, which it has been operating for over a year last past, and has not fenced its road at any place through the township, and that on a given date the plaintiff was the owner of a colt of the value of $100, which was lawfully in said township, and which went onto the track of said railroad and was there killed through the negligence of the defendant, and because its track was not fenced, sets out a cause of action, and is as full as is usual or necessary in a justice's court. Talbot v. Minneapolis, St. P. &* S. St. M. R. Co., 82 Mich. 66, 45 N. W. Rep. 11 13. (3) Missouri. — A statement in an action before a justice of the peace against a rail- road for single damages for killing stock, based upon Mo. Rev. St. § 2124, should allege that the defendant might have in- closed with a lawful fence that portion of the road on which the accident occurred. Russell V. Hannibal'&' St. J. R. Co., 83 Mo. 507. But the statement under Mo. Rev. St. § 2124, is not defective in failing to allege that the animal was injured in consequence of the failure of the road to erect fences. Radcliffe v. St. Louis, I. M. 6* S. R. Co., 90 Mo. 127, 2 S. IV. Rep. 277. Where the statement alleges facts which show that the defendant might have fenced its road at the point where the mare en- tered upon the track, it is sufficient. Rad- cliffe v. St. Louis, I. M. &• S. R. Co., 90 Mo. 127, 2 5. W. Rep. 277. Where suit is instituted under Mo. Rev. St. § 809, to recover for stock killed, the com- plaint must allege that the killing was occa- sioned by reason of a fnilure of the com- pany to erect and maintain such fences as are required by the statute. Rowland v. St. Louis, I. M. 6- S. R. Co., 7 Am. Gr-Eng. R. Cas. 566, 73 Mo. 619. — Distinguished in Perriquez v. Missouri Pac. R. Co., 78 M(\ 91 ; Campbell v. Missouri Pac. R. Co., 78 Mo. 639. Followed in Schultc v. St. Louis, I. M. & S. R. Co., 76 Mo. 324; Wade V. Missouri Pac. R. Co., 78 Mo. 362. I'-'im ANIMALS, INJURIES TO, «22. 363 Quoted in Holland 7'. West End N. G. R. Co., i6 Mo. App. 172. RiiviicwEU in Will- iams?^. Hannibal & St. J. K. Co., 80 Mo. 597. — Cunningham v. Hannibal Sf St. J. R. Co. , 70 Mo. 202.— Following Luckie v. Chi- cago & A. R. Co., 67 Mo. 245; Cecil 7\ Pacific R. Co., 47 Mo. 246. — Approved in Hudgens v. Hannibal & St. J. R. Co., 79 Mo. 418. Distinguished in Edwards v. Kansas City, St. J. & C. B. R. Co., 74 Mo. 117; Williams v. Missouri Pac. R. Co., 74 Mo. 453. In a suit under Mo. Rev. St. 1879, § 809, before a justice and against a railroad com- pany for killing stock, the statement must allege, by direct averment or necessary im- plication, that the stock got upon the track at a point where by law the defendant was bound to erect and maintain fences. A/c- Intosh V. Hannibal &^ St. J. R. Co., 26 Mo. App. 377- Where a suit is brought in a justice's court against a company for killing stock, and a statement is filed showing that the animal got on the track where the company is required to fence, it is not necessary to refer to Mo. Rev. St. § 809, making the com- pany liable. Jenkins v. Chicago » A. R. Co., 32 Mo. App. 552. Where suit is commenced before a justice to recover for stock killed, a complaint or statement filed by the plaintiff alleging that defendant, where its road passed "along and adjoining inclosed and unin- closed lands, and not at a private or public crossing of said road, by its agents, ran the same upon and over plaintiff's horse, of the value of $75, thereby killing said horse ; and that defendant failed and neglected to erect or maintain good or sufficient fences where said horse got upon the track and was killed ;" and recites the statute and claims double damages thereunder, is sufficient. Johnson v. Missouri Pac. R. Co., 23 Am. &* Eng. R, Cas. 180, 80 Mo. 620.— Quoting AND following Jackson v. St. Louis, I. M. & S. R. Co., 80 Mo. 147. A complaint before a justice against a company to recover for stock killed alleged " that the defendant had failed and neg- lected to erect or maintain good or suffi- cient fences on the sides of its road at the point where said cow got on the track and was killed," with a further charge that the injury occurred at a point on the road where the defendant was bound to fence. Ht'lii, that after verdict this was a suflicient allegation that the injury was occasioned by a failure to erect and maintain fences. Kronski v. Missouri Pac. R. Co., 77 Mo. 362. —Followed in Campbell v. Missouri Pac. R. Co., 78 Mo. 639; Stanley v. Missouri Pac. R. Co., 84 Mo. 625. In an action for injury to stock it is suffi- cient if the statement contain such facts as reasonably justify the inference of the ab- sence of a fence, and such as negative the existence of a public road, or that it was inside the town limits, or that it was at a place where the company could fence if it so desired, especially after verdict. And if the road was not fenced at such point it is not incumbent upon the plaintiff to prove actual negligence in running and managing the cars. Vail v. Kansas City, C. &* S. R. Co., 28 Mo. App. 372.— Quoting Thomas V. Haimibal & St. J. R. Co., 82 Mo. 538; Belcher v. Missouri Pac. R. Co., 75 Mo. 514. Reviewing Stanley v. Missouri Pac. R. Co., 84 Mo. 625. In an action brought under § 43, Wagn. Mo. St. p. 310, for killing cattle — held, that a statement charging merely that, where the accident occurred, the defendant's road was "unfenced," stated no facts consti- tuting a cause of action under said section, and that the section applies only to those localities where the law requires the railroad to be fenced. Davis v. Missouri, K. 6- T. R. Co., 65 Mo. 441. A complaint before a justice for killing stock by reason of an insufficient cattle- guard should allege, first, that there was a certain crossing over defendant's railway in a certain township; second, that adjacent thereto defendant had failed to erect and maintain proper cattle guards, etc. ; third, that by reason thereof plaintiff's mare passed from the crossing to the track, etc. Jones v. Chicago, B. &* K. C.R. Co.. 52 Mo. App. 381. 022. Averment that no signals were g .en. — The statement did not state a jause of action at common law or under the statute where it attempted to state a cause of action under § 806, Mo. Rev. St., but failed, because it averred that the failure of defendant " to ring the bell or blow the whistle " did not occur at a public crossing. Cletnings v. Chicago, R, I, &■» P. R. Co., 21 Mo. App. 606.— Disapproved in Polhans v. Atchison, T. & S. F. R. Co., 45 Mo. App. 1 53. 4 ¥ a* 364 ANIMALS, INJURIES TO, «a«-627. 623. Allegation of owiit'rNliip of adjoining land.*— A statement tiled be- fore a justice under Mo. Rev. St. § 809, is not defective or insufficient because it fails to allege that the plaintiff is the owner of land adjoining the railway, from which the ox strayed upon the track by reason of the defendant's failure to fence as required by law. It is only where the animal strays upon the track from an inclosed field that the allegation of ownership must appear, and there is nothing here inconsistent with the conclusion that the railway passed through uninclosed lands. Board v. St. Louis, I. M. &* S. /?. Co., 36 Mo. App. 151. G24. Negativing contributory neg- ligence. f — In a common-law action com- menced before a justice for negligence in killing the plaintiff's mule, the complaint will be held defective when attacked by a motion in arrest of judgment, when it con- tains no averment that the killing com- plained of was without the contributory fault or negligence of the plaintiff. While the same strictness of pleading is not re- quired in cases originating before a justice of the peace as in those commenced in the circuit court, still, where there is a failure in an action instituted before a justice to plead some independent fact essential to a recovery, the omission is fatal, even on a motion in arrest of judgment. Cincinnati, W. f complaint or statement.! — Where o claim is made for attorney's fees, as allowed by statute in an action for killing stock, before a justice, on removal of tlie case to court, it is proper to allow an amendment so as to include a de- mand for such fees. Chicago &^ A. R. Co.v. Henry, 17 ///. App. 521. A statement before the justice, under Mo. Rev. St. § 809, which is held insuffi- cient by the supreme court, may, upon the cause being remanded to the circuit court, be there amended, if warranted by the facts. Manz v. St. Louis, I. M. &* S. R. Co., 87 Mo. 278. Upon appeal from a justice of the peace to the court of common pleas or the circuit court, in an action for damages for killing stock, the plaintiff may, under Mo. Rev. St. § 3060, be allowed to amend his complaint so as to show that the township in which the original action was brought adjoined the one in which the injury occurred. Mitchell V. Missouri Pac. R. Co., 82 Mo. 106. —Followed in Kitchen v. Missouri Pac. R. Co., 82 Mo. 686. — Kitchen v. Missouri Pac. R. Co., 82 Mo. 686. — Following Mitchell V. Missouri Pac. R. Co., 82 Mo, 106. * See ante, .335-336. t See au/e, 366. ■*■• 3G6 ANIMALS, INJURIES TO, «30. Under Missouri Rev. St. 1879, § 3060, pro- viding that, on appeal from a judgment of ci justice of tlie peace, the statement may be amended so as to supply any deficiency therein, provided no new cause of action be introduced, a statement filed before a justice of tiie peace, in an action for killing stock, which shows enough to make it appear that it is intended to be under §43 of Missouri railroad act, but which omits certain essen- tial facts, may be amended in the circuit court. King v. Chicago, R. I. fi^ P. R. Co., 79 Mo. 328. — FoLLOWKU IN Dryden v. Smith, 79 Mo. 525. Where the statement filed before a justice is in the form of a bill for damages " for killing stock," etc., it may, under Missouri Rev. St. § 3060, be so amended on appeal to the circuit court as to allege the failure of the defendant company to fence its track as the cause of the injury ; but the effect of such amendment would be to limit the proof solely to the absence of the fence as a ground of recovery. Minter v. Hannibal &* St.J.R. Co., 82 Mo. 128. Where suit against a railroad company for killing stock is commenced before a justice and is removed to the circuit court, it is proper for that court to permit an amendment where it is inferentially evident that the action is brought under Missouri railroad act, § 43. Rowland v. St. Louis, I. M. &• S. R. Co., 7 Am. 6- Eng. R. Cas. 566, 73 Mo. 619., In an action for injury to live stock, the statement originally filed alleged that the injury was caused by failure of the company to erect and maintain cattle-guards, as re- quired by §43 of the Missouri railroad law. An amended statement was afterward per- mitted to be filed charging the same injury, but alleging that it occurred in consequence of the failure of the company to construct a crossing where its road crossed a public highway, as required by the act of 1875, amending §39 of the railroad law (Sess. acts 1875, p. ^30). Held, that there was no error in permitting the amendment, both counts referring to the same injury. Lincoln V. SI. Louis, /. M. &• S. R. Co., 75 Mo. 27.— Distinguishing Luckie 7/. Chicago & A. R. Co., 67 Mo. 245 ; Cary v. St. Louis, K. C. & N. R. Co., 60 Mo. 209; Wood v. St. Louis, K. C. & N. R. Co. 58 Mo. 109; Crutchfield V. St. Louis, K. C. & N. R. Co., 64 Mo. 255 ; Hansberger V. Pacific R. Co., 43 Mo. 196. — Followed in Straub v. Eddy, 47 Mo. App. 189. 030. Evidence under the plead- iiifj^H.* — In an action commenced before a justice to recover for live stock alleged to have been killed or injured by the de- fendant's cars, on the defendant's road, where the same was not but ought lawfully to have been securely fenced, the defendant may prove, without plea, in bar of the action, that such road was at the time of such killing or injury owned by another railroad company, but was being run by the defendant, as lessee, in her own name. Pittsburgh, C. &* St. L. A'. Co. v. Rolner, 57 Ind. 572, 18 Am. Ry. Rep. 450. A complaint in an action before a justice to recover for a cow killc' was for "one cow killed by your locom' /e," stating the state, county, and townsnip. Held, that under such statement it was not competent tc prove that the company's track was not fe.iced. Toledo &• W. R. Co. v. Reed, 23 Ind. loi. — Following Indianapolis & C. R. Co. V. Clark, 21 Ind. 150. In an action before a justice to recover damages for cattle killed on the railroad (under Iowa laws 1862, ch. 169, §6) it is not necessary to plead the notice and affidavit required in such case, in order to make them admissible in evidence. Brandt v. Chicago, R. I. M. R. Co., 36 Mo. App. 51. 637. Affirmance for want of pros- ecutibn. — Where an appeal is allowed from a justice on a day subsequent to that of the judgment, in an action against a rail- road for killing stock, and appellant fails to give the ten days' notice of his appeal re- quired by the statute (2 Wagn. Mo. St. 850, § 21), before the second ensuing term of the circuit court, the appellee may appear simply for the purpose of having the judgment af- firmed, and will be entitled to such affirm- ance, by reason of the continued failure of appellee to give such notice. But judgment of affirmance for want of p/osecution can- not be taken at the return term of the ap- peal unless appellee enter his appearance % l\ 368 ANIMALS, INJURIES TO, 638-fJ43. on or before the second day of the term. AVy V. Hannibal^ St. J. R.Co ,l\ Mo. 575. —Followed in Transiert/. St. Louis, K C. & N. R. Co.. 54 Mo. 189 ; Dooley v. Mis- souri Pac. R. Co., 83 Mo. 103. Reviewed IN Priest V. Missouri Pac. R. Co., 85 Mo. 521. 038. Ucniandin^ to Justice for new trial.— In an action against a railroad, in a justice's court, for i• G. R. Co., 28 So. C*r. 401, 13 Am. St. Rep. 686, 5 S. E. Rep. 835.— Reviewing Washington A. & G. R. Co. v. Brown, 17 Wall. (U. S.) 450; National Bank V. Atlanta & C. A. L. R. Co., 25 So. Car. 222. — Disapproved in Arrowsmithv. Nash- ville & D. R. Co., 57 Fed. Rep. 165. A railroad company is liable for killing live stock, unless its track is fenced, whether it owns or operates the railroad ; and it is liable as owner, although it may have pre- viously leased the road to some other com- pany or corporation. Oregon R. &> N. Co, V. Dacres, i Wash. 195, 23 Pac. Rep. 415. — Explained in Oregon R. & N. Co. v. Smal- ley, I Wash. 206. 645. Lessee's liability. — (i) Gener- ally. — Where a company leases a road for fifty years, with the " exclusive right to run, operate, and control it," and has fenced the same, it is liable for stock injured or killed by reason of defects in the fence. Tracy v. Tr. To luitt for injury to animals, see Animals, ANTE-MORTEM DECLARATIONS. Admisiibility of, at part of tho res geste, see EVIDKNCE, VI. ANTICIPATED PROFITS. When allowed as d»'nages, see Damages, 1,6. APPAREL. What may be carried as baggage, see Bag- GAGE, 29. APPEAL AND ERROR. Froiw awards, see Arbitration and Award, 2i>. — justice courts, see Justice of thk Peace, II. In actions for injury to live stock, see Ani- mals, Injuries to, U32-041. — condemnation proceedings, see Eminent Domain, XII, XV, 6. — injunction cases, see Injunction, lO. — mortgage foreclosures, see Mortuacies, VI, 12. — proceedings to build branch roads, see Hkancii and Lateral Roads, 10. Review of attachment proceedings by writ of error, see Attachment, 70. — of municipal subscriptions by, see Muni- cipal AND Local Aid, XIV. I. WHO KAT APPEAL AND WHAT lo BEVIEWABLE 373 1 . /« Genera/. 373 2. IV/iat is Appealable 375 3. Matters of Discretion in Court Below 381 II. HOW APPELLATE JUBISDICTIOK IS XXEBOISED 384 1. The Presumption of Regular- ity 384 2. What Errors are Ground for Reversal 386 3. What Errors and Irregularities may be Disregarded 397 4. Objections not Properly Taken Below 414 5. Matters not Apparent on the Record. 421 6. Reviewing the Evidence or the Facts 423 7. Reviewing the Amount Award- ed 434 III. TAXING AND PERFECTING AN AP- PEAL 438 17. PBOCEDUHE IN APPELLATE COUBT.. 443 I. WHO MAT APPEAL AND WHAT IS BB- VIEWABLX. I. In general. 1. Tlio ri|;lit to appeal.— When a right of appeal exists only by virtue of an act, only tliose embraced within the descrip- tion of persons i. liom the right is given can appeal. Mtlniyre \. East on &* A. R. Co., 26 N.J. Eq..\2i A party w'" not b" deprived 'if the right to appeal I ,> an agreement .lot to appeal, unless such agreenunt be based on a consid- eration, or the facts re such as to work an estoppel. OgdiHsburgh &* L, C, R. Co. v. Vermont &^ C. R. Co., 6^ N. V. 176; not dismissing appeal from 4 Hun 'J\2,(i T. &> C. 488, which are affirmed in 16 Abb. Pr. N. S. 249.— DisTiNOUiSHEU IN Wheclock v. Lee, 74 N. Y. 495. Where two companies arc sued jointly for negligently injuring plaintiff, and each answers separately, denying negligence, and a trial results in a verdict against one of the companies only, saying nothing about the other, the company against whom there is no verdict cannot appeal from an order granting a new trial as to the other com- pany. Rankin v. Central Pac. R. Co. 73 Cal. 96, 1 5 Pac. Rep. 57. An affidavit made for the purpose of ob- taining an appeal from a board of county commissioners issuing bonds in aid of a railroad, must show the nature of appel- lant's interest, as where the appeal is by a taxpayer, that he is a resident taxpayer. Fordyce v. Board of Com'rs, 28 Ind. 454. A separate appeal to the municipal court of the city of St. Paul may be taken by a garnishee from a judgment against him rendered by one of the city justices; and such right of appeal is not dependent upon the removal by appeal of the judgment in the principal action. Albachten v. Chicago, St. P. &* K. C R. Co., 40 Minn. 378 ; 42 JV. W. Rep. 86.— Followed in Richter v. Trash, 40 Minn. 379, n. The right of appeal is secured, and not only to all parties in the suit, but to third persons, when they are aggrieved by the judgment, if the amount involved is suffi- cient to give the appellate court jurisdic- tion. (La. C. P. 571.) When, therefore, I t^i 374 APPEAL AND ERROR, 2. £ the state auditor and slate treasurer are made parties-defendants in a suit, to compel them to register bonds of the state which have been authorized by law in favor of a railroad company, which registry by these offictrs is required by law as a prerequisite to their delivery to the company, and the judgment of the court requires them to make such a registry, then and in such case they or either of them have the right of ap- peal from such judgment secured to them, if the bonds sought tu be registered are suf- ficient in amount to give the appellate court jurisdiction, and a mandamus will issue, on application of the auditor and treasurer, or eitiier of them, from the supreme court, directing the judge a quo to grant the ap- peal. State V. Judge, 23 La. Ann. 595. After a decree of foreclosure was entered, but at the same time, in a suit by a railroad mortgage trustee to foreclose, certain bond- holders were made parties for the purpose of appealing. Held, that an appeal taken thereunder was good as to the interest of such bondholders. Sage v. Central R. Co., 93 U. S. 412. In an action for damages, the defense was (i) That the action should have been against the township, inasmuch as the accident oc- curred within tlie lines of a public highway, and (2) that plaintiff's contributory negli- gence was a bar to his recovery. The court submitted the second question to the jury and reversed the first. The jury rendered a verdict for plaintiff, but the court entered judgment for defendant non obstante vere- dicto. Upon appeal by plaintiff the judg- ment was reversed and judgment was entered upon the verdict. Subsequently defendant appealed, assigning as error the submission of the question of plaintiff's contributory negligence to the jury. Held, that defendant was entitled to an appeal. There is nothing in the Pennsylvania acts of May 9, 1889 (P. L. 158), and May 20, 1891 (P. L. loi), to pre- vent such appeal. Gates v. Pennsylvania R. Co., 154 Pa. St. 566, 26 Atl. Rep. 598. 2. as dependent upon the amount in controversy.— (i) Illinois. — Where an action is brought to recover dam- ages to real estate by the construction of tracks in a street in close proximity to plain- tiff's lots, and by depressing the grade of the street, and the declaration charges damages exceeding j^iooo, and the evidence tends to prove them in excess of that sum, an appeal may be allowed to the supreme court, from the final judgment of the court affirming a judgment in favor of defendant. Baber v. Pittsburgh, C. &• St. L. R. Co., 93 ///. 342. In an action against a railroad for negli- gently killing stock, the damages, being sus- ceptible of direct proof, must exceed the sum of $1000, in order to give the supreme court jurisdiction on appeal from the appellate court. It is not enough that the damages amount to $1000 and no more. Hankhis V. Chicago 6- A'. W. R. Co., 100 ///. 466. Where a judgment for the defendant, in an action on the case to recover damages for a personal injury claimed to have been caused by the negligence of the defendant's servants, is affirmed by the appellate court, the judgment being for "less than $1000, exclusive of costs," no appeal or writ of er- ror lies to review the judgment of the ap- pellate court, unless a majority of the judges of that court shall certify the case under the statute. Baxtrom v. Chicago &" N. IV. R. Co., 117 III. 150, 7 N. E. Rep. 268. (2) Iowa. — Under the Code, § 3173, in cases where the amount in controversy does not exceed $100 the supreme court has no jurisdiction on appeal, except as to questions of law. Where the question certified was where the evidence, in a suit against a rail- road to recover for injuries to a horse, showed rontributory negligence on the part of the plaintiff, as held by the trial judge, upon which he directed a verdict for the defend- ant, there is no question of law raised, and the supreme court has no jurisdiction except to dismiss the case. Chilton v. Chicago, R. I. &* P. R. Co., 72 loTva 689, 34 A^. IV. Rep. 473- (3) Kentucky.— The act of April 22, 1882, giving the superior courts exclusive appel- late jurisdiction, except, inter alia, over "judgments for money or personal property, if the value in controversy be greater than $3000," confers upon such courts jurisdic- tion of an appeal by a railroad company from a judgment against it for $1600, in an action for a personal injury, where plaintiff sued for $5000. Louisville H. K. R. Co., i Silv. App. 331, 5 A^. Y. S. R.^^\•, affirming 34 Hun 224. (5) Texas. — The supreme court of Texas cannot review on appeal a judgment of the court of civil appeals, affirming and render- ing a final judgment for $283.03, for freight, brought up from the district court of Trin- ity county, which by statute exercises the same jurisdiction as county courts. Mis- souri, K. &* T. R. Co. V. Trinity County Lumber Co., 85 Tex. 405, 21 5. W. Rep. 539. Under Tex. Rev. St. art. 1068, provid- ing that the court of appeals shall have ju- risdiction of cases on appeal where "the judgment rendered or the amount in con- troversy shall exceed $100, exclusive of in- terest and costs," the court has no juris- diction unless the judgment exceeds $100; and it does not have jurisdiction of a case commenced against a railroad company to recover $92.25 damages where a judgment is rendered for $47.50 and $79.89 costs. Houston » T. C. R. Co. v. Pressley, 2 Tex. App. {Civ. Cas.) 451. A builder sued a railroad company for $ O. R. Co., 28 fV. Va. 815. 3. effect of remittitur of part of amount recovered.* — A remittitur en- . tered after verdict rendered in a case in which the matter in dispute exceeds $2000, does not cut off defendant's right to appeal from a judgment against him. Gayden v. Louisville, N. O. &* T. R. Co., 39 La. Ann. 269, I So. Rep. 792. Where a verdict in a personal injury case is for $5500 plaintiff should not be permitted to remit $750, so as to deprive the supreme court of jurisdiction, though the trial judge be of opinion that the defendant would not be successful on appeal. Smith v. Mem- phis iS- L. R. R. Co., iSPed. Rep. 304.— FOL- LOWING Thompson v. Butler, 95 U. S. 694. 4. Appeals to intermediate appel- late court. — A bill filed to test the au- thority of a railroad company to use a public street in front of complainant's residence for the use of its railroad track does not in- volve the right, title, or va' ^ity of a fran- chise, and an appeal in such case is properly taken to the appellate court in the first in- stance. Mills v. Parlin, 14 Am. &* Eng. R. Cas. 147, 106 ///. 60. An action of debt, brought by the state attorney in the circuit court, against a rail- road company, for the recovery of penalties for alleged extortion and unjust discrimina- tion, which is dismissed by the court, not being a criminal case above the grade of a misdemeanor, and not involving a franchise or freehold, or the validity of a statute, or construction of the constitution, and not re- lating to the revenue, and the state not be- ing interested in it, as a party or otherwise, when the only question involved is the right of the state's attorney to bring the suit, no appeal lies directly to the supreme court. In such case the appeal should be to the appellate court. People v. St. Louis &* C. R. Co., 106///. 412. 2. What is Appealable. 5. What is appealable, grenerally.— Power in a railroad company to exercise the •See also /M/, 126. lli 376 APPHAL AND ERROR, «, 7. )(# right of eminent domain in a city is a " fran- chise," within the meaning of the constitu- tion, defining what cases must be taken to the superior court by appeal or writ of error. Chicago &* IV. I. R. Co. v. Dunbar, i An,. &*Eng. R. Cas. 214,95///. 571.— Reviewing Chicago City R. Co. v. People, 73 111. 541 ; Board of Trade v. People, 91 111. 80; Bank of Augusta V. Earle, 13 Pet. (U. S.) 519; Bridgeport v. New \ork & N. H. R. Co., 36 Conn. 255. Although the direct object of a bill in chancery be not to oust a railroad company from the possession of a franchise, but to enjoin it from condemning property within a city, and a decree is rendered granting the relief sought on the assumed ground that the company has no such right, thus depriv- ing the company of the right claimed, an appeal will lie from such decree to the su- preme court. Chicago &> IV. I. R. Co. v. Dunbar, i Am. &• Eng. R. Cas. 214, 95 ///. 571. — Distinguished in Highway Com'rs V. Chicago & N. W. R. Co., 34 111. App. 32. Where a question is whether the board of railway commissioners can maintain an ac- tion in equity to enforce an order which they have made, and the demurrer denies their right to the relief which they demand, and questions their riglit to maintain the action, the filing of the demurrer questions their right to maintain an action, and is re- viewable on appeal. Smith v. Chicago, M. &». St. P. R. Co., 86 Iowa :.02, 53 A^. W. Rep. 128. Though a chancery court that has ap- pointed a receiver of a railroad has not juris- diction of an action against the receiver to recover for personal inju.les caused by the negligence of persons operating trains under him, such party being entitled to a trial by jury in an action at law, yet where such pro- ceeding is instituted in chancery, and an order refusing the right of trial by jury is not appealed from, and both parties submit to trial before the vice-chancellor, his de- cision is reviewable on the merits on appeal. Palys V. Jewett, 32 A^ /. Eq. 302 ; reversing, on another point, 30 A'^. /. Eq. 604. 6. What is not. — Under Ala. Rev. Code, § 2759, a voluntary nonsuit taken in consequence of the courts sustaining a de- murrer to the complaint is not reviewable on appeal. Amerson v. Montgomery &* M. R. Co., so Ata.^gy, Where a judgment, recovered at a special term of the superior court by a plaintiff for an injury to his person, is reversed at a gen- eral term of said court, and remanded to special term for a new trial, and thereafter the plaintiff dies, no appeal lies from such reversal to the supreme court in favor of the administrator of the deceased. Stout v. Indianapolis &* St. L. R. Co., 41 Ind. 149. There is no appeal to the court of ap- peals to review questions of fact passed upon by commissioners, after personally in- specting the premises and hearing proofs, in a proceeding under the New York general railroad act, laws of 1850, ch. 140, § 22, by an aggrieved landowner who petitions for a change in the proposed route of a railroad. In re New York, !.£.&• IV. R. Co., 99 N. y. 388, 2 A'. E. Rep. 35 ; dismissing appeal from zt Hun 673.— Followed in Niagara Falls, H. P. & M. Co. v. Niagara Falls & L. R. Co., 51 N. Y. S. R. 887. Under the constitution of West Virginia the supreme court of appeals can only re- view proceedings of the circuit courts which are of a judicial nature ; and since a pro- ceeding in a circuit court, supervising the decision of the board of public works in as- sessing railway property for taxation, is ad- ministrative only, it follows that no appeal lies in such case. Pittsburg, C. &^ St. L. R. Co. V. Board of Public Works, 28 W. Va. 264. A special case stated by the railway com- missioners under the Regulation of Railways Act 1873, § 26, cannot be appealed from a divisional court to the court of appeal. Hall V. London, B. &> S. C. R. Co., 17 Q. B. D. 230, 5 Ry. &* C. T. Cas. 28. The college of Ste. Therese having peti- tioned for an order for payment to them of a sum of %ifioo, deposited by the appellants as security for land taken for railway pur- poses, a judge of the superior court in chambers, after formal answer and hearing of the parties, granted the order under the railway act, R. S. C. ch. 109, § 8, sub-sec. 31. Held, that the order in question having been made by a judge sitting in chambers and further acting under the statute as a persona designata, the proceedings had not originated in a superior court within the meaning of § 28 of the supreme and ex- chequer courts 2SX, and the case was there- fore not appealable. Canadian Pac. R. Co. v. Little Seminary of Ste. Therese, 16 Can, Sup. Ct. 606. 7. What Judgments or decrees are final.— A judgment is final which dis- poses of all matters in controversy as AlMMi AL AND ERROR, 8. 377 to all the parties to a suit; iience, a judg- ment dissolving an injunction wliich was once issued to restrain a railway company from constructing and operating its road, when to secure such restraint was the ob- ject of the suit, is a final judgment. From such a judgment an appeal may be taken which will give jurisdiction to the supreme court over the case ; and this though the case may have been dismissed by the court below, on the plaintiff's request after the entry of the order dissolving the injunction. Gulf, C. .r. 98. 2 S. W. Rep. 199, 3 5. W. Rep. 564. In a suit growing out of an assignment of a railroad, a perpetual injunction re- straining the assignor violating the terms and purposes of the assignment is a final decree for the purposes of an appeal. French V. Shoemaker, 12 Wall (£/. 5.) 86. A decree in a suit to foreclose a railroad mortgage which ascertains the amount of the debt and directs that the property be sold at public auction, unless the amount, with interest and costs, be paid by a given time, is a final decree for the purposes of an appeal, and the time fixed in which an ap- peal can be taken begins to run from the date of the decree. Bronson v. La Crosse &> M.R. Co., 2 Black {U. 5.) 528. In a suit to compel a transfer of certain shares of railroad stock, a decree denying appellant relief, and dismissing the bill as to him, but retaining it as to a matter in which he was not interested, is a final de- cree within the law relating to appeals, and matters adjudicated therein cannot be re- viewed in an appeal from a subsequent decree. Hill v. Chicago » E. R. Co., 140 U. S. 52, 1 1 Sup. Ct. Rep. 690.— Reviewed IN Grant v. East & W. R. Co., 50 Fed. Rep. 795, 2 U. S. App. 182, I C. C. A. 681. Where an auxiliary bill is filed in a rail- road foreclosure suit, which charges that certain bonds are involved, and seeks to ex- clude them from benefit under the mortgage, a decree dismissing the auxiliary bill, but retaining the suit, and referring it to a mas- ter, is a final decree as to the auxiliary bill, and therefore appealable. Grant v. East &* W. R. Co.. 50 Fed. Rep. 795. 2 17. S. App. 182, I C. C. A. 681.— Reviewing Hill v. Chicago & E. R. Co.. 140 U. S. 52, II Sup. Ct. Rep. 690.— Approved ik Pennsylvania Co. v, Jacksonville. T. & K. W. R. Co.. 55 Fed. Rep. 131. A decree establishing liens on railroad property and directing a sale thereof is a final decree and appealable, and the right to appeal therefrom is not affected by a subse- quent decree consolidating the suit with other causes and directing a sale, but pro- viding that the proceeds of sale shall be paid into court until the priorities of the various liens are ascertained. Texas, S. F. &• N. R. Co. V. Ortnan, 3 A^. Mex. 308, 9 Pac. Rep. 253. A proceeding by motion under § 4029, Rev. St. Ind. 1881, to enforce the payment of a judgment against a railroad company for stock killed, is a new and original suit, a civil action, and the decision of the court upon a hearing is not interlocutory, but is a final order and judgment from which an appeal will lie. Indianapolis, D. &• IV. R, Co. V. Crockett, 2 Ind. App. 136, 28 A^. E. Rep. 222.— Following Chicago & A. R. Co. v. Summers, 113 Ind. 10. A court in Louisiana, on the ex parte ap- plication of a holder of railroad bonds, granted an order in the nature of a fore- closure. Afterward the railroad company appealed and filed a petition seeking to sus- pend the order to seize and sell the r, until a final hearing, and, among other things, denying the power to make the order without notice to the company. The court dismissed the company's petition with costs. Held, to be a final judgment for the purposes of an appeal. New Orleans, O. S* G. W. R. Co. v. Af organ, 10 Wall. (U. S.) 256. An express company filed a bill against a railroad to enjoin any interference with the facilities it enjoyed over the railroad. After a preliminary injunction a decree was en- tered which required the road to carry the express goods, fixed the compensation, ad- judged costs, and awarded an execution. Held, to be a final decree for the purposes of an appeal, although leave was given the parties to apply for a modification of rates. St. Louis, I. M. &* S. R. Co. v. Southern Exp. Co., 16 Am. &> Eng. R. Cas. 95, 108 U. S. 24, 2 Sup. Ct. Rep. 6.— See 10 Fed. Rep. 869.— Followed in Missouri. K. & T. R. Co. V. Dinsmore, 108 U. S. 30, 2 Sup. Ct. Rep. 9. 8. What judgments or decrees are not final. — There must be a degree of finality about every judgment taken up to be reviewed by appellate courts. Judgment appointing commissioners to fix a just com- iU:^ :J78 AI'PICAL AND liKROR, 9, to. r pensation for land proposed to hv taken in condemnation proceedings is not final anfl appealable. Ludlow v. Norfolk, 87 Va. 319, 12 S. E. Rep. 612.— Followed in Postal Tel. Cable Co. v. Norfolk & W. R. Co., 87 Va. y^().— Postal Td. Cable. Co. v. Norfolk i5- W. R. Co., 87 !'a. 349, 12 S. E. Rep. 613.— FoLLOWiNc; Ludlow v. Norfolk, 87 Va. 319. A judgment, in a suit against two defend- ants, for plaintiff, against one defendant, without showin;^^ any disposition of the cause as to the other, is not a final judg- ment, and is therefore not appealable. Mis- souri Pac. R. Co. V. Seott, 78 Tex. 360, 14 S, IV. Rep. 791. A judgment dissolving a temporary in- junction and awarding costs, but not other- wise disposing of the subject-matter of the litigation, is not a final judgment, and will not support an appeal. International » G. N. R. Co. V. Smith County, 58 Tex. 74. — Fol- lowing Herndon v. Bremond, 17 Tex. 432. Where suit is instituted against a railroad for failing to provide farm-crossings, a judg- ment reciting that a plea is bad, and that plaintiff is entitled to damages, but staying judgment therefor until the damages could be ascertained, is not final so as to be appeal- able. Grand Trunk R. Co. v. Amey, 20 U. C. C. P. 6. A decree directing one railroad to pay rent to another for rolling stock which does not settle the title to the rolling stock, which is the real matter in litigation, is not a final decree, so that an appeal therefrom may be had. Milwaukee &• St. P. R. Co. v. Sautter, 131 U. S. 86, app'x. A decree ii. a railroad foreclosure suit which directs a sale, but which leaves the amount of the debt undetermined, and does not ascertain and define the property to be sold, is not a final decree so as to allow an appeal therefrom. North Carolina R, Co. v. Swasey, 23 Wall. {[/. S) 405. A decree that all proceedings on a judg- ment should be stayed, and that no writ of habere facias possessionem should issue thereon until the final determination of a pending proceeding to assess damages for taking the land recovered, subject to such further order of the court as the justice of the case may require, is not a final decree, and a writ of error thereto will not lie. O'Hara v. Pennsylvania R. Co., 2 Grant's Cas. {Pa.) 241. 0. What orders are appealable, grenerally.— Under the Indiana law, an appeal may be taken from an order of the board of county commissioners donating money to aid in the construction of a rail- road. Fordyce v. Board of Com'rs, 28 Ind. 454. As an attorney-general has a supervisory power over the acts of district-attorneys in matters in which the public is interested, the attorney-general may demand that a judg- ment be set aside in a suit to recover state and county taxes against a railroad, which, by the consent of the district-attorney, has been entered for a sum less than that sued for, and if the court refuses to set aside such judgment, an appeal will lie. Sacramento County V. Central Pac. R. Co., 61 Cal. 250. Certain bonds were pledged for the secur- ity and protection of the receiver of a rail- road against debts and liabilities of the corporation. Held, that an order of court for the sale of the bonds, or granting leave to the receiver to dispose of them, made on rule to show cause why they should not be disposed of, is an appealable order. Phila- delphia &» R. R. Co. v. Little, 41 N. J. Eg. 519, 7 Atl. Rep. 356. 10. What orders are not appeal- able. — As the Indiana statute was in De- cember, 1872 (Rev. St. 1 88 1, § 5772), an appeal was not allowed from an order of a board of county commissioners, selling railroad stocks belonging to the county. 0' Boyle v. Shannon, 80 Ind. 1 59. In an action appointing a receiver an appeal will not lie from the ruling of the court overruling a motion to vacate an or- der appointing a receiver, but in order to secure an appeal the course pointed out by :he statute must be followed. Wabash R. Co. V. Dykeman, 133 Ind. 56, 32 N. E. Rep. 823. Prior to the adoption of the Iowa Code of 1873, §3165, there was no appeal from an order of a judge of the supreme court dissolving an injunction ; and said section allowing such appeal will not be construed to be retroactive, so as to include an order of such judge, dissolving an injunction, re- straining a railroad company from laying its track in a city street. Davenport v. Davenport » St. P. R. Co., 37 Iowa 624. An order appointing a receiver for rail- road property pending litigation to foreclose a trust, is not appealable. Maysville &* L. R. Co V. Punnett, 15 B. Mon. (Ky.) 47.— Followed in Douglass v. Cline, 12 Bush (Ky.)6o8. APPEAL AND ERROR, 11,12, 370 An order of tlie supreme court, i^cncral term, overruling exceptions in that court in tiie first instance, and ordering judgment on the verdict is not appealable to the court of appeals before there is any judgment entered in pursuance of the order. Del- aware, L. &• jr. A'. Co. V. Rurkhard, 15 A^ Y. S. A". Sir- All order refusing leave to individuals to bring an action against a railroad company, in the name of the state, for the purpose of avoiding tlie company's charter, is not one from which an appeal will lie, not being an order In "an action or suit." Oregon v. Oregon C. /?. Co., 2 Or eg. 256. Appeals as of right from orders of the county court in controversies concerning roads only exist where the controversy is concerning the establishment of a road, and not where it is a collateral controversy concerning the damages occasioned by a road already established. Hancock v. Rich- mond &^ P. R. Co., 3 Gratt. (Va.) 313. Where the order of the county court is interlocutory and not final, it cannot be re- vised by the ciicuit court in any mode of proceeding. Hancock v. Richmond &* P. R. Co., 3 Gratt. {Va.) 313. 11. Wliat orders are Una!.— A writ of error or appeal will lie to the refusal of a judge to vacate a commissioner's certificate of "ascertainment and assessment," in a proceeding to condemn land for a railroad, such being a final determination. Denver &" N. O. R. Co. v. Jackson, 6 Colo. 340. Though the property of a railroad be sold under a decree for the foreclosure of a mort- gage, on bill taken firo con/esso, stHl the company may appeal from a final order directin- a distribution of the proceeds of sale, and adjudging a balance still due the mortgage creditors. Ohio C. R. Co. v. Cen- tral Trust Co., 133 U. S. 83, 10 Sup. Ct. Rep. 235- 12. What orders are not final. — The discharge of a receiver furnishes no ground of appeal. Nor does the rescision of an interlocutory order of sale, which deter- mined no right. Washington City &» P. L. R. Co. V. Southern Md. R. Co., 55 Md. 153. An order of reference in proceedings by certiorari under the act of 1880 (chap. 269, Laws of 1880), to review and correct an al- leged illegal, erroneous, or unequal assess- ment, or an order refusing to set aside such an order of reference, is not reviewable in the court of appeals ; neither order is final. nur does it affect a substantial right within the meaningof the Code of Civil Procedure, section 190. People ex rel. v. Smith, Si, N. Y, 628 ; dismissing appeal from 24 Hun. 66. In controversies concerning roads no ap- peal or supersedeas lies to an interlocutory order of the county court. Treziilian v. Louisa R. Co.,^ Gratt. (Va.) 312. Where a common carrier is sued for an overcharge on freights, an order requiring the company to produce its books to show that other shippers had been allowed re- bates, is not a final order, and is therefore not appealable under the Iowa Code, § 3164. Cook v. Chicago, R. I. &- P. R. Co., 75 Iowa 169, 39 N. W. Rep. 253. Under §§ 426, 429, Code Proc. when an ar- bitration of the differences between parties has failed for any reason, the superior court is clothed with full jurisdiction to proceed to a final determination of the controversy, and an order of such court setting aside the award of the arbitrators is not such a final order as will sustain an appeal. Tacoma R. &• M. Co. V. Cummings, 5 Wash. 206, 31 Pac. Rep. 747, 33 Pac. Rep. 507. Where in an action against a railroad com- pany the jury returned a verdict against the company, and also made certain special find- ings of fact, and the company made a mo- tion for judgment upon those findings, the verdict to the contrary notwithstanding, which motion was overruled by the court, and thereafter the company made a motion to set aside the verdict and judgment and for a new trial, which motion was sustained — held, that as no judgment had been ren- dered against the company and no final or- der made against it. no petition in error would lie in this court to review the action of the district court in refusing a judgment upon the special findings in favor of the com- pany. Atchison, T. &^ S. F. R. Co. v. Brown, 6 Am. &* Eng. R. Cas. 228, 26 Kan. 443 — Further Appeals, Brown v. Atchison, T. & S. F. R. Co., 15 Am. & Eng. R. Cas. 271, 31 Kan. I. The following orders have been held not to be "final orders," and hence not to be review- able on appeal or error : An order made in a railroad foreclosure suit before judgment, making certain in- debtedness of the receiver of the road a first lien, and ordering its payment out of the proceeds of sale. Illinois T. <&* S. Bank v. Pacific R. Co., ggCal 407, ^^Pac. Rep. 1132. An order overruling a motion to set aside rpl II 380 APl'EAL AND ERROR, J.'J, 14. 1 -M t a sale of a railroad, previously ordered. Ra- cine 6"* M, li. Co. V. Farmer's L. &» T. Co., Jo III. 249. An order in an equitable action against an elevated railway, to the effect that plain- lifT was not entitled to an injunction to re- strain the operation of the road, and pro- viding that the complaint shall be dismissed unless plaintiff, within a designated time, give notice that he elects to try the case on the law side of the court. Kich v. Manhat- tan R. Co., S3 A^. Y. S. R. 346, 138 A^. V. 668, mem., 34 N. E. Rep. 402; dismissing appeal from ig N. Y. Sitpp. 543. An order appointing a receiver to receive the revenues, etc., of a railroad, and bring the same into court, subject to its order, etc., and without any application of its funds except to certain costs accrued. Ea- ton v. H. R. Co. V. Varnum, 10 OAio St. 622. —Distinguished in Cincinnati, S. &C. R. Co. V. Sloan, 31 Ohio St. 1. An order in condemnation proceedings directing a writ of inquiry as to damages. Camp V. Coal Creek &* W.G. R. Co.,\\ Am. 6- Eng. R. Cas. 372, 11 Lea {Tenn.) 705. 13. Orders affecting a substantial right.— An order of the circuit court con- demning land for the use of a railroad com- pany is a final order, affecting a substantial right in a special proceeding, and is appeal- able. Wisconsin C. R. Co. v. Cornell University, 49 IVis. 162, 5 N. W. Rep. 33'- An order made in a special proceeding, pursuant to Wis. Act of 1859; ch. 211, direct- ing the election of directors of a railroad, is an order "affecting a substantial right," within the meaning of the act of i860, ch. 264, §10, and is therefore appealable. In re Fleming's Petition, 16 Wis. 70. 14. Matters conclusively settled in court below.— The supreme court will not review the conclusion of the court below, as to the existence of negligence, unless it can see from the record that in drawing its in- ference the trier imposed some duty upon the parties which the law did not impose, or absolved them from some duty which the law required of them in the circumstances, or in some other respect violated some rule or principle of law. Farrell v. Waterbttry Horse R. Co., 46 Am. &* Eng. R. Cas. 207, 60 Conn. 239, 21 Atl. Rep. 675, 22 Atl Rep. 544. — Applied in Fritts v. New York & N. E. R. Co., 62 Conn. 503. Followed in Andrews v. New York & N. E. R. Co., 60 Conn. 293. In an action to recover for a personal injury, the question of negligence of the defendant, and also that of the plaintiff, are questions of fact, and the judgment of the appellate court affirming that of the trial court is con- clusive upon this court on appeal or error. Toledo, St. L. Sf K. C. R. Co. v. Clark, 147 ///. 171, 35iV. E. Rep. 167. All controverted questions of fact, such as whether the verdict is sustained by the evi- dence and whether the damages found are excessivo or not, are conclusively settled by the finding of the appellate courts, and are not subject to review in the Illinois supreme court. Chicago, B. &* Q. k. Co. v. Sullivan, (III.) 17 A^. E. Rep. 460. Where a trial court has not misstated he rule for ascertaining damages or otherwise misdirected the jury to the hurt of the de- fendant, judgment of the appellate court sustaining the findings of the trial court as to the damages sustained will be regarded as conclusive in the supreme court. Chi- cago, B. &> Q. R. Co. v. Sullivan, {III.) 17 N. E. Rep. 460. Issues of fact arising in the trial term are properly for the exclusive determination of that term, and, consequently, when they are heard and decided there the decision will not be revised here. To support a bill of exceptions, some legal error must be alleged and shown. Mooney v. Boston &* M. R. Co., 65 A^. H. 670, 19 Atl. Rep. 571. The court referred a proceeding by con- tractors against a receiver of a railway £■-. recoveV payment for certain work done, tl * order of reference directing the master i'; ascertain the amount "justly and equitably due as the true value of the work done and materials furnished." The master found the work was done and the ma- terials furnished under a contract, and reported the contract price as the amount due, and refused to hear evidence as to their value, which report was confirmed by the court and judgment thereon en- tered. Held, that the trial court having confirmed the report, an appellate court would not reverse the finding, though the language of the reference might seem to be open to a broader construction as to the true value of the work than was given it by the master and court. Girard Life Ins., A. &* T. Co. V. Cooper, 51 Fed. Rep. 332, 4 U. S. App. 631, 2 C. C. A. 245. APPEAL AND ERROR, 15-21. 881 3. Matters of Discretion in Court Below. 15. In general.— Where a charge to a jury lays down no erroneous rule of law, but contains statements which may have im- properly influenced the jury, the court be- low, in its discretion, may set aside the ver- dict, but the charge is not reviewable in the court of appeals. Conners v. Walsh, 131 A''. K. 590, 30 A^ E. Rep. 59, 42 A^ Y. S. R. 868. It is generally in the discretion of the court, when it finds error in part of a judg- ment requiring a reversal of that part, to reverse the whole judgment, and such dis- cretion will not, except under peculiar cir- cumstances, be interfered with upon appeal to the court of appeals. Gray v. Manhattan R. Co., 128 A^. v. 499, 28 A^. E. Rep. 498, 40 N. V. S. R. 478 ; affirming 35 A^, Y. S. R. 32, 12 ^V. Y. Siipp. 542. The court of appeals will review upon ap- peal the determination of the courts below> even upon a discreti .nary order, where it appears that the discretion was based on the ground of a want of power to grant the ap- plication. So held, in reviewing the order of the general term, denying a motion to compel a plaintiff to give security for costs in an action against a railroad. Tolman v. Syracuse, B. 6- N. Y. R. Co., 92 A^. Y. 353; reversing 29 Hun 143. 16. Admitting evidence founded on experiment. — Experiments and dem- onstrations used in evidence should be made under conditions similar to those at- tending the fact to be illustrated ; and when this rule is observed, the discretion of the trial court in allowing the result of such ex- periments to go to the jury will not be re- viewed in the absence of abuse thereof. Leonard v. Southern Pac. R. Co., 21 Oreg. 5 55, 28 Pac. Rep. 887. 17. Amendment of pleadings.— Suit was brought against a company to recover a strip of land used for a right of way, plain- tiff admitting that he had conveyed a right of way, but not the land where the road was built; and without denying these allega- tions, the company proceeded to trial ; but after it had begun, asked to file a denial, which the court refused. Held, that such matter rested in the discretion of the trial court, and such refusal was not an abuse of that discretion. Owensboro, F. R. &* G. R. Co. v. Harrison, (A>.) 22 .V. IV. Rep. 545- 18. Denial of requests to charge.*— Where a railroad company is sued for killing stock, a refusal to instruct the jury to make a separate finding as to each ani- mal killed is within the discretionary power of the court. Gulf, C. &> S. F. R. Co. v. Washington, 49 Fed. Rep. 347, 4 U. S. App. 121, I C. C.A. 286. In an action against a railroad for killing stock, the company's attorney asked the court to instruct the jury that a failure to produce as witnesses the company's em- ployes who operated the train doing the killing should not be considered in deter- mining how the injury was inflicted, but which the court refused to give. Held, that the refusal to so instruct was a matter dis- cretionary with the trial court. Taylor v. Chicago, St. P. &• A'. C.R. Co., 76 fowa 753, 40 N. W. Rep, 84. 10. Granting or refusing continu- ances.— The granting or refusing of a con- tinuance is largely within the discretion of the trial court, and, unless it appears that such discretion has been abused, its ruling will be sustained. St. Louis, W. &» W. R. Co. V. Ransom, 29 Kan. 298. 20. Granting or refusing man- damus.— An action was commenced by the people to vacate the charter of a railroad corporation which had applied for a writ of mandamus to compel the issuing of a per- mit to enter upon the streets along its route for the purpose of commencing the con- struction of its road ; an alternative writ was granted and a return made thereto. The court denied a motion by the people for an injunction to stay such proceeding by mandamus, upon the relator's stipulating that no permit should issue until the deter- mination of said action. Before such de- termination, the relator, after a trial of the issues presented by the motion, moved for a peremptory mandamus, which motion was denied. Held, that the granting of the mo- tion was at least discretionary, and so the decision was not reviewable in the court of appeals. People v. Newton, 126 N. Y. 656, 27 A^. E. Rep. 370, 37 A'. Y. S. /?. 391, dis- missing appeal from 26 /. 382 APPEAL AND ERROR, 22, 23. 5^ cretion of the court at special term, and will not be reviewed by the general term, unless it clearly appears that the special term has erroneously exercised its discre- tion. So held, on a motion to compel a rail- road to produce its books for the purpose of a discovery. Hart v. Ogdensburg Eng. R. Cas. 72, 27 Kan. 463. 20. ICefiisal to rt'opeii case. — In an action for personal injuries the refusal to fii'iifc 384 APPEAL AND ERROR, 27-20. £ h permit plaintiff, after the close of defend- ant's testimony, tu show by mortality tables the probable length of her life, was within the sound discretion of '.he court. McDer- molt V. Chicago 6- N. IV. R. Co., 85 IVis. 102, 55 /V. W.Rep. 179.- Applying Berrin- kott V. Trapiiagen, 39 Wis. 219. Defendant company owned a railroad bridge across the Missouri river, between the states of Iowa and Nebraslca, and contracted witii plaintifT company for the joint use of it. Suit was brought to enforce this con- tract, and at the final argument, and after the evidence had closed, defendant offered evidence to show that plaintiff had never complied with a Nebraska statute prescrib- ing the conditions upon which it might en- ter that state, and that the contract was not, therefore, mutually enforceable. Held, that the refusal of such evidence was within the discretion of the trial judge. Union Pac. R. Co. V. Chicago, R. I. &*P. R. Co., 51 Am. &> Eng. R. Cas. 162. 51 Fed. Rep. 309, 2 C. C. A. 174; affirming ^7 Fed. Rep. 15, 47 Am. 6- Eng. R. Cas. 340.— Following Joy v. St. Louis, 138 U. S. I, II Sup. Ct. Rep. 243. 27> Ilestraiiiiiit; counsel in their artriiineiits.'*'— It is in the sound discre- tion of the trial court to determine the effect upon the jury of improper remarks and statements made by counsel when trying a case, and whether such remarks and state- ments were prejudicial to the defeated party. Mykleby v. Chicago, St. P., M. &> O. R. Co., 49 Minn. 457, 52 N. W. Rep. 213.— Fol- lowing Loucks V. Chicago, M. & St. P. R. Co., 31 Minn. 526. In a suit against a company for causing the death of an employe, where the evi- dence is not conflicting, and the issues under the instructions are direct and simple, it is not an abuse of the discretion of the trial court to limit the arguments of counsel to 25 minutes. Louisville » A'^, R. Co. v. Earl, (Ky.) 22 S. IV. Rep. 607. 28. Billings upon evidence.— Rul- ings on the admission of testimony will not be reviewed on appeal to the supreme court unless they have done substantial injustice. Port Huron &* S. W. R. Co. v. Voorheis, 14 Am. &* Eng. R. Cas. 227, 50 Mich. 506, 1 5 N. IV. Rep. 882. It is so largely a matter of discretion in the trial judge as to whether a witness in a condemnation proceeding shows sufficient • See also post, 3», 69, 97. knowledge as to the value of land in the neighborhood of the land taken, to ren- der him competent to testify as to the dam- ages, that his ruling thereon will not be disturbed on appeal unless there is a mani- fest abuse of such discretion. Smalley v. loiva Pac. R. Co., 36 lazva 571. In an action upon a contract promising to pay a specified amount upon the comple- tion of a certain railroad, where the declara- tion avers the contract tu have been made for a valuable consideration, and the ante- cedent negotiations out of which the con- tract grew are relied upon as constituting such consideration, it is not error to allow such preliminary negotiations to be very fully disclosed, and a wide discretion in that regard must be left with the trial judge. Tower v. Detroit, L. &* L. M, R. Co., 34 Mich. 328. The question of permitting the introduc- tion of records to prove the title of the plaintiff, in an action for injury to crops and to the land itself, instead of requiring the production of the original evidence of title, rests, to a great extent, in the discretion of the trial court, and unless there is n clear abuse of that discretion error will not lie. Fremont, E. &* M. V. R. Co. v. Mar ley, 25 Neb. 138,40 A': W. Rep. 948. U. HOW APPELLATE JDBI8DI0II0N 18 EXEBCISED. I. The presumption of regularity, 29. In general — Where the court makes out the bill of exceptions and states that there is a disagreement of counsel, it must b^ conclusively presumed that this statement is true, and no facts outside of the record will be considered to show the contrary. Sabine &* E. T. R. Co. v. Joach- imi, 58 Tex. 452. Where a clerk executes a release from li- ability for damages to the goods of a firm employing him, it will be presumed that the trial court acted correctly, where the evi- dence contained in the record does not show the extent of his authority, McCann V. Baltimore &* O. R. Co., 20 Md. 202. Where the consideration for a release of damages for personal injuries was ordered K) be deposited with the clerk and the can- cellation of the release decreed, it will be presumed on an appeal from a judgment in an action at law for the damages, the rec- ord being silent on the subject, that the re- ■w APPKAL AND liRROR, :iO-;i;i. 385 (juired deposit was made. B/nir v. Chica- _ifO &' A. A\ Co., 89 Afo. 383, I .S". IV. Rtp. 350. Where a petition avers that a great rail- way company leased the roadbed and side- tracks of another railway company, it will tx! presumed after judgment in favor of plaintiff, when the evidence admitted on the trial is not brought to tiiis court, that tlu; roadbed leased is an extension and con- tinuation of the railroad of the lessee. At- chison, T. &* S. F. R. Co. v. English, 38 Kas. 1 10, 16 Pac. Rep. 82. Where a railroad in the hands of a re- ceiver consists of two or more divisions, which are sold under foreclosure separately and at different times to different purchas- ers, it will be presumed, in the absence of any evidence to the contrary, that the court below correctly distributed charges for sup- plies furnished among the different divi- sions to which they properly belonged. Kneeland v. Bass Foundry &* Mack. IVor/ts, 48 Am. Gr' Eng. R. Cas. 675, 140 I/. S. 592, 1 1 Sup. a. Rep. 857. An appeal was taken from a decree allow- ing a judgment in a railroad foreclosure suit, and directing payment out of the pro- ceeds of sale, the decree reciting that the judgment was one of a class already ad- judged to be of a preferential character, but the record did not show the nature of the demand on which the judgment was re- covered. Held, that an appellate court must presume that the finding of the lower court was correct as to the nature of the claim. St. Louis S. W. R. Co. v. Graham, 56 Fed. Rep. 258.— Following St. Louis S. W. R. Co. V. Stark, 55 Fed. Rep 758. 30. As to a((eot' person li^jiired.— Where a child is injured at a crossing, and there is no evidence of her exact age, but the witnesses refer to her as " a little child," the court will presume that she was too young to be guilty of contributory negli- gence. Wiley V. Long Island R. Co., 27 N. Y. Supp. 722, 76 Hun 29. 31. As to the pleadings.— In consid- ering and determining an appeal from an order of a judge of a circuit court allowing an injunction, the bill being properly veri- fied by the affidavit of the plaintiff, and the proceeding being altogether ex parte, the appelate court must take and consider the allegations of the bill as being /rma facie true. Fresh: -xter W.Pittsburgh, W.&^K. R. Co., 6 W. Va. 503. 1 D. R. D — 25. 32. As to evidence.— Where judgment for plaintiff in un action for the death of plaintiff's intestate is affirmed by the a|)pcl- late court, it will be assumed that whatever the evidence tended to prove was found in favor of plaintiff, and such finding is con- clusive upon the supreme court. Missouri Furnace Co. v. Abend, 107 ///. 44; affirming 9 ///. App.y^. In suit for injuries from negligence, where the specific acts constituting such negligence are averred in the complaint, it must be presumed on appeal, in the absence of any- thing in the record to the contrary, that the evidence of negligence was confined to those acts, even where there is a general verdict for plaintiff. Kelley v. Chicago, M. » B. R. Co. v. Burton, 97 Ala. 240. Louisville iS- A'. R. Co. v. Mothershed, 97 Ala. 261, But if no plea of contributory negligence is interposed, and the cause is not conducted in such manner as if it had been interposed, the appelliite court will not review the rul- ings of the lower court with respect to mat- ters falling within that iisue. Tennessee C, I. &*R. Co. V, Hayes, 97 Ala. 201, 12 So. Rep. 98. An action was brought by a lot owner to recover damages from a railroad company for obstructing the alley at the rear of his lot and preventing passage to and from the same. It was tried by the parties and the court below upon the theory that the occu- pancy and obstruction were permanent and enduring. Held, that it will be so considered and treated in the supreme court. Leaven- worth, N. nrlin(; an appeal from an order nppoint- iiiK a receiver for a railroad, the parties filed an a(;reement dismissing the case, and the ( iiurt entered an order that each party should l>;iy half the costs of the appeal, but neither should recover costs otherwise. Afterward ili(! receiver moved in the court below (or iui allowance for his services, which was al- lowed and ordered to be taxed as costs, de* fcndant to pay one half. An appeal was taken from this order. Held, that it was in conflict with the order of the appellate court and should be reversed. Morsev. Hannibal &* Sf.J. a: Co., 72 Mo. 585. In a suit on a verbal contract made with its chief engineer for erecting depot build- ing.s, whose authority was denied by defend- ant, the plaintiff and his witnesses were al- lowed to refer repeatedly to the defendant, "as the party dealing or dealt with," against objection. Held, that the objection should have been regarded, and that the court, by allowing witnesses to persist in such refer- ences, placed the jury in a position where they were not only liable to be misled, but to overlook the necessity of proof of the en- gineer's authority to make the contract. Jiond v. Pontiac, O. G^ P. A. A'. Co., 26 /l/n. ci- Efig. A*. Cas. 57 1 , 62 A/ic/i. 643, 29 A^. IV. Rep. 482. \Yl, ErroiieoiiH admlHHioii of evi- d«Mice.*— ( I ) General rules.— It is reversible error to admit parol evidence of a written subscription to stock, without any excuse for the absence of the original ; and without any attempt to produce a certified copy from the books of the corporation. Cincinnati, P. (5- C. R. Co. v. Coc/tran, 17 Ind. 516.— FiK.LOWED IN Cincinnati, P. & C. R. Co. 7'. Emrick, 19 Ind. 289. Where a street-car company is sued for negligently causing a personal injury in the operation of its cars, evidence that fails to show that the driver who was on the car at the time was employed by the defendant, or whether the defendant owned or controlled the cars doing the injury, fails to show that the company was negligent, and therefore a judgment for plaintiff should be reversed. Cords w. Third Ave. R. Co ,2^J.&^S.{N. Y.) 570, 4 A^. V. Snpp. 713. 23 A'. Y. S. R. 201. In an action for killing plaintiff's intes- tate, it is error to allow a witness to testify * See a!so/oj/, 01-07. to what he heard the engineer in charge say after the killing occurred ; nor is such error cured by the subsequent admissi Eng. R. Cas. 167, 36 IV. Va. 165, 14 S. E. Rep. 465.— FOL- LOWED IN Gunn v. Ohio River R. Co., 37 W. Va. 421. Where a passenger sues for an injury and the company claims that it was the result of his own act in goini^ upon the platform, and the conductor testifies that he and plaintiff went to the platform together, and, after giving an order about setting the brakes, he returned into the car and sat down, while plainJH remained on the platform, all of which is denied by plaintiff, it is reversible error to refuse a question put by the defend- ant to a passenger on the train tending to corroborate the conductor as to whether he returned to the car and sat down before the accident occurred. Mitchell v. Southern Pac. R. Co., 87 Cal. 62, 25 Pac. Rep. 245. ■t is error to refuse to permit one who was in a buggy behind that in which plain- tiff was travelling to testify that he, at a p'lint one hundred feet from the crossing, Inokofl alontr the railroad in the direction of the approaching train, and could not see the train, as this testimony tended to show that when the buggy in which plaintiff was trav- elling was within about seventy feet of the crossing, the train, not yet in sight,must have been more than twelve hundred feet away, that being the distance at which a train could be seen, and tlierefore, if running at the usual speed, would probably not have struck the buggy. Cahill v. Cincinnati, H. O. &> T. P. R. Co., 49 Am. &• Eng. R. Cas. 390, 92 Rj/. 345, 18 S. JV. Rep. 2. A witness was asked, " How much rent more, in your opinion, was it worth (mean- ing plaintiff's premises) on account of the road being there ?" This was excluded as immaterial. Neltl, that while the question vas objectionable on grounds not taken on the trial, it was error to exclude it as imma- terial, as evidence of benefits is always ma- terial and admissible. Odell v. Metropolitan El. R. Co., 3 Misc. {^N. Y.) 335, 52 N. Y. S. R. 7. Plaintiff alleged that he was wrongfully ejected from a train and robbed by defend- ant's employes. The evidence was conflict- ing as to whether it was plaintiff or his son who was ejected from the train, and as to the car from which he was ejected. Held, that it wa^ error to strike out the testimony of plaintiff that he never made any com- plaint to defendant about the ejection or robbery until the action was commenced, two years afterwards. Washburn v. Chi- cago, St. P., M. (S- O. R. Co.. 84 IVis. 251, 54 N. IV. Rep. 504. Upon the question as to the identity of the person ejected, a wide range of inquiry should have been allowed ; and it was error to refuse to allow defendant to cross-examine the son as to whether he had trouble with the conductor of the train, what he said to the conductor or brakeman, whether he was put off from the train by the conductor or trainmen, and whether, for several minutes prior thereto, he had not been engaged in a conversation or wrangle with the conductor. Washburn v. Chicago, St. P., M. &* O. R. Co., 84 Wis. 251, 54 A^. W. Rep. 504. 30. Improper remarks by counsel.* — (i) General rules. — In suits for personal injuries, it is reversible error to allow plain- tiff's attorney to read to the jury reported cases from the supreme court, where large damages have been given, and the cases af- * See, ;ilsi), fost, 08. * See, also, ante, 27 ; post, 60, 97. f APPEAL AND ERROR, 40. 389 ;ethe that trav- f the liave way, train ng at liave C/, H. Cas. tirnicd. Calvcston, //. &> S. A. R. Co. v. ll'csc'i. 85 yV.r. 593, 22 S. IV. Rep. 957. 1 lie aiguinent of counsel in addressing a jury should be confined to a discussion of facts in evidence, and when language is used relating to matters not in evidence, and of a character calculated to inflame and prejudice the minds of the jurors against the adverse party, the judgment will be reversed, espe- cially in a case where the verdict seems ex- cessive. Galveston, H. &• H. R. Co. v. Cooper, 70 Tex. 67, « 5. W. Rep. 68. Sta» foments by counsel for plaintiff, in an action against a railroad, to the effect that "railroad companies never do justice to any one unless compelled to do so ; they will take any advantage, no matter how just the cause again-'l them," and that he hopes the jury will make the defendant company pay " the last cent they can," are good grounds for reversal, though the court instructed the jury not to be influenced by such remarks, where it appears, nevertheless, from the amount of the verdict, that the jury did at- tempt to make the company pay the " last cent " that they could. Galveston, H. &* S. A.' R. Co. v. Kutac, 72 Tex. 643, 11 5. W. Rep. 127. (2) Illustrations. — In an action for killing a boy, counsel for plaintiff, in his closing ad- dress to the jury,used the following language: " Tliey talk about the co.. ration; what is the corporation ? Go to New York City and there view Huntington in his princely man- sion, surrounded by all that wealth can give — there is the corporation. What does he care for the lives of these boys ? There is only one thing to make him care, and that is, 12 men of his country." The verdict was in favor of the plaintiff for $7000 damages. Held, as it could not be made to appear that the jury was not influenced by the improper language of counsel, that it was ground for reversal. Dillingham v. Scales, 78 Tex. 205, 14 5. W.Rep. 566. In an action by a husband to recover for personal injuries to his wife, the court made an order for a physical examination of her injuries by a board of physicians, who made the examination a id testified as to the re- sult. No objection was made to the order directing the examination, but in his closing add. ess to the jury, plaintiff's attorney de- nounced the order for the examination as an outrage upon the wife, etc. No attempt was made by the court to control the attor- ney or to suppress his language. Held, that the language of the attorney, together with the silence of the court, may have misled the jury, and is ground for reversing a judg- ment in favor of the plaintiff for large dam- ages. Gulf, C. (^ S. F. R. Co. V. Butcher, 52 Afn. &• Eng. R. Cas. 615, 83 Tex. 309. 18 S. IV. Rep. 583. In an action by a passenger for damages received in an accident alleged 10 have been occasioned by the company's wanton dis- regard of its legal obligations, and by its gross negligence in running its train, and in permitting its bed and track to become grossly defective and unfit for use, wherein the plaintiff recovered $2000 for actual dam- ages and I8000 for exemplary damages, the court trying the cause permitted the coun- sel for the plaintiff, in his closing argument, over the objection of the defendant, to read to the jury, as was read by plaintiff's coun- sel in the opening argument, the following quotation from Redfield on Carriers, coupled with the statement that the author was counsel for railway companies where he lived, viz. : " Section 539. The truth is that common juries, with the highest instincts of justice, have always in our country been ac- customed to view the matter of railway re- sponsibility for passenger transportation in the light of higher and fuller responsibility than either the courts or the profession." Held, error sufficient to entitle defendant to a new trial. Houston 6r> T. C. R. Co. v. Nichols, ( Tex.) 9 Am. (Sr- £ng. R. Cas. 361. Judgment reversed because of the refer- ence by plaintiffs' counsel in his argument 10 the jury, without provocation, to the de- fendant, as " the unfortunate city railway, whether driven through the streets by the mob or driving along in its usual course,'' in view of the great excitement and anger of the populace, which culminated in mob violence against the defendant but a few weeks before the trial, and of which the court cannot fail to take judicial knowledge as a matter of current history. Geist v. De- troit City R. Co., 91 Mich. 446, 51 N. \V. Rep. 1 1 12. 40. Erroneous instructious, gen- erally.* — There may be cases where the proof is so strong as to justify the court in instructing the jury as a matter of law that certain acts constitute negligence, but de- murrers to evidence and peremptory in- structions are not favored under the Texas * See, also, post, 70-83. ;t. :{90 APPEAL AND KRROR, 41, practice; and wliere siicli instructions arc complained of, tlie judgment will not be sup- ported, unless it clearly appears that the complaining party was not injured thereby. Texas &> P. R. Co. v. Murphy, 46 Tex. 356, 13 Am. Ry. Rep. 319. Where an employe is injured while on a construction train by being run into by a rear passenger train, questions whether the accident was due to the negligence of fel- low servants, or whether the injury was pro- duced by causes incid nt to the service, are essential to a recovery by the plaintiff, and the action of the court below in ignoring such questions is ground for reversal. Wa- bash, St. L.^r- P. R. Co. V. Gordon, 17 ///. App. 63. Where an employe sues the company for a personal injury caused by the negligence of another employe, an instruction which tells the jury that defendant is liable, if the one causing the injury was a vice-principal, is ground for reversal where there is a gen- eral verdict for plaintiff, and the appellate court decides that the one causing the in- jury was a fellow-servant and not a vice- principal. What Cheer Coal Co. \. Johnson, 56 Fed. Rep. 810. Where the evidence is conflicting as to the fact whether a railway company, on the approach of one of its trains to a public road crossing, gave the statutory signals, it is error to instruct that if the defendant failed to give such signals as to enable the person injured or killed to ascertain its ap- proach and avoid injury, the company is lia- ble. Chicago. B. &> Q. R. Co. v. Dougherty, ig Am &* Eng. R. Cas. 292, no ///. 521 ; reversing 14 ///. App. ig6; further appeal, 125 ///. 127. It was error on the part of the court be- iow to authorize a finding because the com- pany failed to ring its bell or blow its whistle continuously until the train passed the cross- ing at which the plaintiff was injured by a passing train. Paducah &* M. R. Co. v. Hoehl, 12 Bush {h'y.) 41, 18 Am. Ry. Rep. 338. In an action for personal injuries counsel for plaintiff asked th*; court to charge " that if defendants here failed to produce wit- nesses that they could have done, who were in the employ of the contractors at the time of the accident, and who were present at the time of the accident, that fact the jury shall take into consideration in coming to a con- clusion." The court said : " That is a ques- tion the jury will consider for themselves." Held, reversible error. Flynn v. Nenu York- El. R. Co., iS/.&'S. (N. V.) 375. The case did not disclose that the wit- nesses were under the control of defendants more than of plaintiff, or more in theii- in- terest, or more easily reached by subpoena. Neither side had called them. So fai- as tlie contingencies of the request are regarded, the fact of not calling them bore against one party as much as against the other. Flynn v. New York El R. Co., 18 /. &• S. (N. Y.) 375. Arbitrators having awarded compensation to the plaintiff for injuriously affecting his land, to an action on the award defendants pleaded that the sum awarded was exces- sively and fraudulently exorbitant, and that the award was made by the fraud of the plaintiff and the arbitrators. The jury were directed that if the plaintiff contended be- fore the arbitrators that by law and under his deed he had such an exclusive right to the water in front of his land as would en- title him to damages, when he had not, this was I vidence of fraud under the plea, //eld, that this was a misdirection. Wi'dder v. Buffalo &* L. //. R. Co., 27 U. C. Q. B. 425. 41. Instructions outside of, or broader than the issue. — It is reversibie error to submit a case on instructions which are broader than thecase made by the plead- ings, //ouston &* T. C. R. Co. v. Terry, 42 Tex. 4SI. Where a complaint charges negligence in running trains over a track that had been rendered unsafe by recent floods, an in- struction is erroneous which permits the jury to find the company negligent as to its roadbed, or as to the ties or other materials used. Ely v. St. Louis, K. C. Or' N. R. Co., 16 Ant. &* Eng. R. Cas. 342, 77 Mo. 34. It is error to instruct that if there was a city ordinance requiring the defendant to keep a flagman at a crossing, " then the de- fend int could not fail or neglect to comply with its requirements, without being guilty of negligence," if such negligence be not con- nected with the alleged injury. Pennsyl- vania Co. V. //ensil, 6 Am. &» Eng. R. Cas. 79, 70 /nd. 569, 36 /Jw. Rep. 188. Where suit is brought to recover for per- sonal injuries, and the issue is made as to whether plaintiff was a passenger at the time or not, an instruction which permits the jury t<» f.nd for plaintiff, though they might believe that such relation did not APPKAL AND ERROR, 42-44. 891 Ives. Vori- wit- dants ir in- )oena. IS the rded, gainst )ther. <5- S. exist, is error, justifying a reversal. C//i- cago, B. &• Q. A'. Co. v. Melilsack, 44 ///. App. 124. — Distinguishing Chicago & A. R. Co. %>. Wilson, 63 111. 167. Quoting Chicago, B. & Q. R. Co. v. Mehlsack, 131 111.61. In an action for personal injuries where the plaintiff specifically alleged that the in- jury was caused by the negligence of his co- employe, the engineer of the train, and no other basis of recovery was stated, it was error for the court to present to the jury a question not made by the pleadings, by in- structing them that the plaintiff might re- cover if the injury was caused by the negli- gence of the fireman. Atchison, T. &* S. F. R. Co. V. Irwin, 35 Kan. 286, 10 Pac. Rep. 820. 42. lustriictious on the weight of evidence. — It was prejudicial to defendant for the court to tell the jury that he knew of no direct testimony tending to show plaintiff's knowledge of the character of machinery used by which he was injured, and of his consent to its use, when plaintiff was present and saw the pole used, and the manner of its use ; and the error was not cured by leaving it to the jury to say what were the facts, after having called their at- tention to the contention of the defendant's counsel in regard to these facts. Young v. Virginia &* N. C. Const. Co., 109 iV. Car. 618, 14 S. E. Rep. 58. Plaintiff's icehouses were destroyed by a fire which started a few minutes after de- fendant's engine had passed along a side- track near them. Defendant's evidence tended to show that the engine had the most approved appliances to prevent the escape of fire, that these appliances were all in good condition, the dampers properly closed, and the ash-pan properly cleaned at the time, and that under such circumstances coal or cinders could not escape from the ash-pan. There was no positive evidence of any defect in the engine, and no evidence as to the size of the coal or spark that started the fire ; but the evidence tended to show that the fire started between the rails of the track, and that a strong wind was blowing at the time. Held, that from this evidence it might be inferred that the fire was not started by a cinder from the smoke-stack, which would probably have been blown to some distance from the track, but by cin- ders escaping from the ash-pan, and that, in fact, the ash-pan was not properly con- structed or was out of repair, or not prop- erly cleaned or managed. It was error, therefore, for the trial court to rule that there was no evidence tending to show negligence of the defendant in that respect, and to take that question from the jury. Kurtz &* H. Ice Co. V. Milwaukee &• N. R. Co., 84 IVis. 171, S3 ^- ^^- K«P- 850. — Distinguishing Spaulding v. Chicago & N. W. R. Co., 30 Wis. no. 43. Instructions assuming disputed facts. — In an action for personal injuries by an employe, alleged to have resulted from a defective hand-car, it was a disputed fact under the evidence as to whether notice had been given to the company of the de- fect. Held, that it was error for the court to assume as a fact that such notice had been given, and so charge the jury. Texas Of P. R. Co: V. Kane, 2 Tex. App. {Civ. Cas.) 24. Suit was brought for a breach of contract to sell railroad bonds. Plaintiff claimed that the number sold was 600, while de- fendant claimed it was but 500. The evi- dence was conflicting and would have supported a verdict for either party. The contract was oral, and the amount of each bond was not shown. Five days after the contract was made defendant gave plaintiff a written order for 60 bonds, which closed : " You may also deliver him any other of said bonds, not exceeding $600,000 in all, he may take at same time." In instructing the jury, the court assumed that this meant 600 bonds at $1000 each, which would make the total amount mentioned in the order, and told the jury that it plainly fixed the term; and the number of bonds at 600. Held, that, while it might tend to prove that number of bonds, it was a question for the jury, and such instruction was reversible error. Goodwin v. Burke, 10 N. V. Supp, 628. 44. Instructions unsupported by evidence. — It may be reversible even to charge a sound proposition of law upon a supposed state of facts which there is no evidence to support. Texas Pac. R, Co, v, tVisenor, 66 Tex. 674, 2 5. IV. Rep. 667. In an action against a railroad to recover damages for a personal injury to a passen- ger, it is error to instruct the jury that plaintiff can recover for loss of time, where there is no evidence to show the value of the time lost. International S^ G. N. R. Co. V. Lock, (Tex. Civ. App.) 20 S. IV. Rep. 855, Where an instruction told the jury, in 81)2 APPEAL AND ERROR, 46. estimating plaintifT's damages, to allow any expense incurred for drugs or treatment by ohysiirians, and there was no evidence of any such expense, it was reversible error. Cul- berson V. Chicago, M. &- Sf. P. R. Co., 50 Mo. App. 556. In an action for personal injuries, in which it was alleged that the plaintiff, while at- tempting to enter one of defendant's " down- cars,' and actually being on one of the steps of its platform, was thrown from it upon the street, and in consequence of the negligence of defendant's servants, in both the " down- car " and a passing " up-car," was severely injured by collision with the " up-car," a judgment for the plaintiff will be reversed if the trial judge, while instructing the jury correctly as to the negligence of defendant's servants upon the "down-car," instructs them to take into consideration the conduct of the driver of the " up-car," and there is no testimony of any negligence upon his part, and it does not appear from the ver- dict upon which charge the jury passed their findings. Black v. Brooklyn City R. Co., 34 Am. &• Eng. R. Cas. 526, 108 A". K. 640, i Silv. App. 580, 15 N.E. Rep. 389, 13 A^. Y. S. R. 645. Where a suit is brought to recover against a railroad company for various items of damage to land, among which is one for throwing dirt and rocks upon plaintiff's land while a railroad is being constructed, it is reversible error for the court to in- struct the jury that they are authorized to find damages for such cause, where there is no evidence showing that any dirt or rocks were thrown upon the land, and where plaintiff, at the trial, has expressly aban- doned this item of damage. Missouri Pac. R. Co. v. Cox, 2 Tex. App. (Civ. Cas) 217. Plaintiff, who was employed as a sweeper, wa."? injured by stepping into a hole in the round-house. There was no evidence that plaintiff had ever been employed about the round-house before. The court neverthe- less instructed the jury that if plaintiff had been employed about the round-house be- I fore, and knew of the excavation, he could . not recover. Held, that as the instruction was based upon facts of which there was no proof, it was erroneous. Manning v. Bur- lington, C. R. &* N. R. Co. {Iowa) 15 Am. &* Eng. R. Cas. 171, 17 N. IV. Rep. 669. 45. Instructions invading province of jury.— A charge which takes from the consideration of the jury the question of whether jumping from a moving train was an act of negligence or not is erroneous. Covington v. Western » B. R. Co. V. Sledding, 19 Am. &* Eng. R. Cas. 36, 62 Md. 504. — Applied in Elliot v. Chicago, M. & St. P. R. Co., 38 Am. & Eng. R. Cas. 62, 5 Dak. 523, 3 I,. R. A. 363, 41 N. W. Rep. 758. Where a boy is riding a horse near a track, and the horse takes fright and runs on the track, where it is killed, and the boy injured, the liability of the company de- pends upon whether the track was properly fenced, if at a place where it should have been, and as to whether the boy was guilty of contributory negligence, which are ques- tions for the jury ; and an instruction which takes from the jury the question whether the boy exercised due care, considering his age and all the circumstances of the case, is such error as to be ground for reversal. Hynes v. San Francisco &• N. P. R. Co., 20 Am. &* Eng. R. Cas. 486, 65 Cal. 316, 4 Pac. Rep. 28. Where a passenger sues for damages, and it clearly appears from his own evidence that the relation of carrier and passenger did not exist, it is not reversible error, as an invasion of the province of the jury, for the court to instruct that the evidence justi- fies a verdict for the company; but where it becomes important to determine whether the statements of the agent who sold the ticket formed part of the contract, and whether he had authority to bind the com- pany by a special stipulation in reference to the right to stop over on a connecting road, the question should be left to the jury, and a failure to do so is ground for reversal. Robinson V. Louisville &> N. R. Co., 2 Lea {Tenn.) 594. Where a company is sued for an injury at a crossing, the question of the company's negligence should be left to the jury, where I '►»« APPEAL AND ERROR, 40, 47. 393 there is evidence upon wliicli tlie jury might have found that no whistle was sounded or bell rung, and a failure to so submit the case to the jury is error. Duffy v. Chicago Sr* N. IF. ^. Co., 32 iVts. 269. To instruct the jury that " plaintiff's tes- timony shows that deceased was familiarly acquainted with the crossing and the time of the passing of trains, and it was his duty to have avoided bemg run against by de- fendant's train by keeping off the track at crossing-titne, and if lie failed so to avoid the train and placed himself so close to the train as to put it out of the power of the defendant's employes to avoid injuring him, then the law is for the defendant " is error, inasmuch as it interferes with the province of the jury. It requires that an care and caution be used by the deceased and none by the railroad company. Louisville, C. &• L. R. Co. V. Goetz, 14 A»t. &' Eng. Ji. Cas. 627, 79 A>. 442, 42 Am. Rep. zrj. In an action for damages for injuries caused by the alleged negligence of de fendant, the trial justice charged the jury as follows : " You have a right to believe or disbelieve the plaintiff entirely, unless he is corroborated ; if he is corroborated, you have no right to disbelieve him." Held, that as the charge of the court took from the jury the right to determine as to whether plaintiff's con.i n- hen there is no testimony to .tfiuiH :' , verdict for such damages. Atchi- son, T. Sf S. F. R. Co. V. McGinnis, 46 Kan, 109, 26 Pac. Rep. 453. — Following Kansas City, Ft. S. & G. R. Co. v. Kier,4i Kan. 671. An error in authorizing the jury to give punitive damages in a case in which they are not recoverable will work a reversal where it cannot be determined from the verdict whether or not it includes such • See iA%o post, 81. f See also post, 82. damages. Patry v. Chicago, St. P., M. &* O. R. Co., 77 IVis. 218. 46 A'. IV. Rep. 56. A charge is erroneous which merely in- structs the jury that they may allow vin- dictive damages if they find that the de- fendant's act was characterized by "gross negligence," without explaining that "gross negligence " in this connection implies such entire want of care or recklessness of con- duct as is the equivalent of " positive mis- conduct," or evinces "a conscious indiffer- ence to consequences." East Tenn., V.&^G. R. Co. V. Lee, 90 Tenn. 570, 18 5". W. Rep. 268. It was error to instruct the jury that if the defendant was guilty of wilful neglect they ought to award punitive damages. Nor was the error cured by telling them in another instruction that they " could " find any sum as punitive damages not exceeding the amount claimed in the petition. Ken- tucky C. R. Co. V. Gastineau, 83 Ky. 1 19. It is error to charge that a corporation master is liable in punitive damages for the wilful tort of its servant, in the absence of evidence that the master authorized or rati- fied the tort, or was guilty of misconduct in the employment or retetition of the servant. Donivan v. Manhattan R. Co., i Misc. {N. Y.) 368, 49 A^. Y. S. R. 722, 21 A^. Y. Supf>. 457-— Quoting Cleghom v. New York C. & H. R. R. Co., 56 N. Y. 44 ; Fisher v. Met- ropolitan EI. R. Co., 34 Hun 433. It is error to charge that a corporation master is responsible in punitive damages for an inexcusable assault and battery by its servant, when the evidence authorizes the inference that the servant acted from an innocent motive, and in the supposed dis- charge of his duty. Donivan v. Manhattan R. Co., I Misc. {N. Y.) 368, 49 A^. Y. S. R. 722, 21 A': Y. Supp. 457. 60. Misleading instructions.*— An instruction that " where a plaintiff was com- pelled to act at once in the presence of im- mediate imminent danger, he cannot be held guilty of contributory negligence as a matter of law merHy because he did not choose the best means of escape," was im- proper, since, as applied to the facts, It left the jury to conclude that if plaintiff chose the best means of escape which occurred to him, this fact might relieve him from the consequences of the contributory negli- gence, if any, by which he was brought into * See also post, 74. APPEAL AND liRKOK, r.l T.JJ. 395 the dangerous condiiioii. luiltzcr v. Chi- aigo, M. • N. R. Co., 65 Mo. 569. 5G. Prejudice, vrhen presumed.— If there be error at the trial a presumption of prejudice arises therefrom, and it will be disregarded only when the record shows there was no prejudice in fact. Potter v. Chicago, R. I. iS- P. R. Co., 46 loava 399. 16 Am. Ry. Rep. 57.— QUOTED IN Hall v. Chicago, R. I. & P. R. Co.. 84 Iowa 311. The reception of illegal evidence is pre- w APPEAL AND ERROR, 57-59. 80? sutnptivcly injurious to tiic party objecting to its admission. Any illegal evidence that has a tendency to excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgment of jurors in any degree cannot be considered harmless. Evidence cannot be said to be entirely harmless where the party objecting to it is obliged to call a witness to explain or con- tradict it. Anderson v. Koine, H\ &* O. A*. C'<^,54A'. r. 334. Unless it is made to appear that an erroneous charge, which was calculated tu mislead the jury, did not have this effect, the judgment will be reversed. The burden (if showing that no injury resulted is, in such case, on the appellee. Gu//, C. &* S, F. R. Co. v. Greenlee, 23 Am. &* Enj^. A'. Cas, 322, 62 Tex. 344. Where the evidence is conflicting upon the question of negligence, a judgment will be reversed unless it appears that the in- structions on behalf of the successful party stated the law correctly and were free from errors calculated to mislead the jury. Lai'e Shore 6- M. S. R. Co. v. Elson, 15 ///. App. 80. 3. What errors and irregularities may be disregarded. 67. In {jeueral.— A railroad company was sued for the loss of baggage. The proof was conflicting as to whether the baggage was delivered on the loth or the i6th of a certam month. The owner of the baggage recovered, and the court allowed interest on its value from the loth of the month. Held, that the error, if any, was too small to be ground of reversal, whether the baggage was delivered on the loth or the i6th. Missouri Pac. R. Co. v. Colquitt, {Tex.) gS. IV. Rep. 6oy Plaintiff's awning was set on fire by a coal of fire almost as large as a walnut, emitted from one of defendant's engines. Defendant's evidence showed v^hat the ap- paratus of the engines for preventing the escape of fire were of the most approved pattern, and that orders were issued for frequent examination and reparation, which were habitually carried out; but no evi- dence was given as to this particuler engine. The evidence showed that the engines fre- quently emitted large sparks and that the ash-pans had openings m the side through which the coals might fall. Held, that the conclusion of the court that defendant's negligence caused the fire was not such crrur as to call for reversal. Sugarinan v. Manhattan El. R. Co., 42 A'. )'. S. R. 30, 16 N. V. Supp. 533. 58. Errors I'avuriiblo to uppclluiit — When the measure of damages given hy the court lo the jury is more favorable to the pliiintitr than the one prescribed by law, the plaintilT has no cause to be dissatisfied therewith. Wilson v. Atlanta Eng. R. Cas. 25, 82 Ga. 386, 10 N. E. Rep. 1076. The fact that the court treated the de- ceased, in an action for his death by reason of defendant's negligence, as a trespasser on the company's track, being error in defend- ant's favor, affords no ground for a reversal of the judgment. Lynch v. St. Joseph (&>» /. R. Co., Ill Mo. 601, 19 S. W. Rep. 11 14. 59. Nou-prejndivial errors, t^eiier- ally, — In an action for personal injuries, the plaintilT having recovered a judgment on the verdict, and reserved exceptions to several rulings of the court on the trial, the supreme court, on appeal by him, will not consider any ruling adverse to him which does not affect the question of the measure or amount of damages, since, if erroneous, it could not have injured him. Carrington v. Louisville &> N. R. Co., 41 Am. &* Eng. R. Cas. 543. 88 Ala. 472, 6 So. Rep. 910. — Following Donovan v. South & N. Ala. R. Co., 79 Ala. 429. Where, in a suit for the value of stock killed by a railway company, testimony was received on both sides tending to show the value of the animals killed and the damage to those injured, and the jury were per- mitted to take to the jury-room a state- ment made by the plaintiff's counsel show- ing the highest amounts given by any witness of such value and damage, and th'e jury rendered a verdict for less than the average of such amounts, with interest, the use by the jury of such statement was error without prejudice. Harroun v. Chicago ,'ainsi a company to recover for a loss re- sulting from fire negligently escaping from a locomotive, the plaintifT should aver as definitely as he can the train from which and the time when the tire escaped ; but the failure of tiic court to require such definite statement is not ground for reversal where it appears that the company was not preju- diced thereby. Missouri Pac. K. Co. v. Mer' rill, 40 Kan. 404, 19 Pac. Kep. 793. Where a passenger sues for being ejected from a train, and charges that he was "forced o(T," and the company in its atiswer denies committing any violence toward him, a judgment for pluintilT will not be reversed on the ground that there was no claim made for punitive damages. Kno^vles v. Norfolk S. R. Co., 102 N. Car. 59, 9 S. E. Rep. 7. Although it may, strictly speaking, be irregular for the court, after an improper plea has been filed, and thereby become a part of the record, to entertain and grant a motion to reject the same, still, if the court does so, it must, in substance and effect, be regarded as setting aside the plea, and though it is done irregularly the pro- ceedings will not be reversed for such ir- regularity. In such case the court, having done right substantially, its proceedings will not be reversed because of mere informality in the mode of doing it. Hart v. Baltimore &* O. R. Co., 6 W. Va. 336. The injury to plaintiff was caused by the negligence of the C. & D. R. Co. Subse- quently the said railway was sold to the D. k S. C. R. Co., under a contract whereby the latter company assumed all the debts and liabilities of the former, and the plain- tiff sought to recover the amount of his damages b)' virtue of said contract of the said D. & S. C. R. Co., but alleged in his petition that such agreement was made by the S. C. & D. R. Co., instead of by the railway named. Held, that as there was no room to doubt that it was intended to charge the D. & S. C. R. Co. with such lia- bility, the error was without prejudice. Knott w. Dubuque &> S. C. R. Co., 84 Imva 462, 51 A^. W.Rep.yj. ALout 60 days after a railroad had been sold and the receiver discharged, suit was brought against the receiver for services rendered, and an order was pcnulttcd strik- ing out the name of the receiver as defend- ant and substituting that of the purchasers. Under the terms of sale the purchasers became liable for all the debts of the com- pany. Held, that it was not .lUcli error as would allow the purchasers to prosecute un appeal, where they had been served with process and allowed the statutory time in which to answer. Abbott v. Ne^v York, L. E. &* IV. R. Co., 120 A', y. 652, 24 .V. /-:. Rep. 810, 31 A^. y. S. R. 649. 2 .SV/7/. App. 599 ; affirming 46 Hun 6S0, 1 2 A^. 1 '. S. R. 565. Ul. Non-prejudieial or liariiilcss evidence. — Mere abstract error is not enough to justify a reversal ; it must be error with reference to the issues, and where the bill of exceptions does not show whether the evidence could have prejudiced the com- plaining party, its admission is not grouiui for reversal. Missouri Pac. R. Co. v. Edwards, 75 Tex. 334, 12 i". W. Rep. 853. The putting of an improper question to a witness can afford no ground for the re- versal of a judgment when, from the nature of the answer, it is manifest that it did not affect injuriously tlie rights of the party complaining. Hughes v. Galveston, H. &> S. A. R. Co., 34 Am. IV. R. Co. v. T APPEAL AND ERROR, 62-64. 399 IVorcesttr, 36 Aw, &* Eng. R. Cas. 447, 147 Mass. 518, 18 A'. L. AV/. 409. Errors in the admission of evidence as to the rate of speed at which a train was running at the time of the collision is not reversible error where it appears that the engineer only saw the other train when 100 feet away, iind that he was running at a rate of speed making it impossible to stop in that dis- tance. Kansas City, Ft. S, &• At, R. Co, v. atoner, 52 Am. &* Eng, R. Cas. 462, 51 /•>i ground of re- versal. Central R. Co. v. ^llhnon, 1 47 III. 47 1 , 35 A'. E. Rep. 725. Where plaintiff sues for personal injuries, it is no ground for reversal that he was per- mitted to give his opinion as to the value of his services while he was disabled, where the value of the services is not definitely fixed, and where he gives facts upon which his opinion is based. Hart v. Charlotte, C. / H. R. Co., 44 N. Y. S. R. 688, 63 Hun 630, 17 A'. )'. Supp. 801 ; affirmed 136 A'. K. 638, mem.; 32 A'^. E. Rep. 1014,49 A'- ^' ^- ^'- 9'3. mem. On cross-examination, a plaintiff who sued for a personal injury received by walk- ing on a track was asked whether he had at any time climbed on the cars to get a ride. An objection to this question was sustained, but he was allowed to testify that he did not attempt tf) climb upon the cars at the time he was injured, but that some- times when cars were switching about the place of the injury he did get on freight cars for a ride. Held, that the error in the ruling, if any, was cured. Whalen v. Chicago 6- A^. W. R. Co., 41 Am. 6- Eng. R. Cas. 558, 75 Wis, 654. 44 N. W. Rep. 849. In an action for personal injuries, where one of the principal disputed questions is, whether the plaintiff at the time of the in- jury was in the employ of the company sued or of a contractor constructing the road, it is error for the court to permit the general question to be asked of plaintiff: " In whose employ were yon at the time of your injury?" But where the witness upon further examination narrates in detail all th,^ facts and circumstances connected with his employment— ^^A/, the error is not material. Solomon R. Co. v. /ones, 34 A^an. 443. 8 Pac. Rep. 73°- APPEAL AND liRROR, 0«, «7. 401 The trial court permitted a witness, who wax present at th^- origin of the lire out of which the action arose, to tesiiiv that he had said at the time, " that if there were any coals under tlic plank walk wc would have a blaze." Held, to be error, but, in view of other testimony in the cause cor- roborating the correctness of the remark, error without injury. JacksonvilU,T. &*K. W. A'. Co. V. Pininsular L., T. &* Af. Co., 49 Am, iS- Eh£. A'. Cas. 603, 27 F/a. i, g So. Kep. 661. In an action against an elevated railway to recover damanes to abutting property, a witness, over various objections, was per- mitted to testify as to the rental value of the property for the following years, both with and without the road. In the further progress of the trial both parties gave sim- ilar testimony without objection. Held, that the error was no ground, under the circumstances, for reversal. Kernochan v. New York El. R. Co., 29 A^. V. S. A'. 523. GH. KcMiilt not aft'eoted by the im- proper evidence.— Error in admitting evidence upon a point on which plaintilT failed to recover is no ground for reversing the cause on defendant's appeal. Keyser v. Kansas City, St. J. &• C. R. K. Co., 61 Iowa 175, 16 A^. IV. AV/>. 68. Where a court tries a case without the intervention of a jury, the admission of im- proper, immaterial, or irrelevant evidence is no ground for reversal where it clearly ap- pears that it did not influence the judg- ment. St. Louis, A. dr- T. N. Co. v. Turner, I Tex. Civ. App. 625, 20 S. IV. Rep. 1008. Where a company is sued for an injury alleged to have been caused by a defective car, the admission of a book showing that subsequent to the injury the car was sent to the shops and repaired, is not ground for reversal where the jury find that the car was defective in the particular which caused the injury. Belair v. Chicago &* N. IV. R. Co., 43 foivti 662. It is not reversible error to have per- mitted the plaintiff to testify that she had an infant child by a former marriage, where ihe verdict was for thirty-five hundred dollars, as such evidence does not appear to have influenced tiie amount of damages. Soeder v. St, Louis, L M. &* S. R. Co., 100 Mo. 673. 13 S. W. Rep. 714. The admission of evidence as to exem- plary damages is not ground for reversal where the court excludes a recovery for such I D. R. n. — 26. damages and where the verdict rendered is clearly wiihin the amount of compensatory damages which plaiiitifT was shown to be en- titled to. A'eyesv. A/innetipol/s »5- .SV. L. R. Co., id Minn. 290. 30 ^V. W. Rep. Soli In an action to restrain the operation of an elevated railway, and for damages, the admission of evidence under questions im- proper in form is not reversible error, where it appears that the judgment of the court was not based on such evidence. Korn v. New York El. R. Co., 37 N. Y. S. R. 630, 59 Hun 625, 13 A'. Y. Supp. 514. In un action for personal injuries the trial court permitted the defendant to cross-ex- amine the plaintiff as to encumbrances on his property, the object being to show that he was financially embarrassed, and was simulating or exaggerating the character and extent of the injuries. The jury found that there was no actionable negligence. Held, that the error in permitting the cross- examination could not have prejudiced the plaintiff. Beery v. Chicago &• N. IV. R. Co., 73 IVis. 197, 40 A'. Hl Rep. 687. The admissior; of evidence as to damages on account of the loss of hire of the mules in question, if error at all, was not such error as would give the plaintiff in error a right to complain, it not appearing that the jury allowed any damages for such loss of hire, and the amount of damages found be- ing fully authorized by the evidence as to the injury to the wagon and the mules, which damages were sufficiently alleged in the declaration. East Tenn., V. &» G. R. Co. v. War mack, 86 (7a. 351, 12 5. £•. Rep. 813. 67. Waiver of objections to evl* dence.* — When a witness for a landowner is asked and testifies, over the objection of the company, that his farm was damaged a certain sum per acre, naming it, by the tak- ing of the right of way through it, this is erroneous ; yet if it is shown that the objec- tion made was also to the competency of the witness to testify as an expert who wa« competent, and it is also shown that objec- tions to like questions asked other witnesses were sustained, and also that in the course of the trial like evidence had been given to proper questions without any objection of defendant, and the defendant also, in cross- examination, repeatedly asked like ques- tions, the error is not sufiicient to compel a reversal of the judgment. Chicago, K. &* 11 * See also ante, 37. 403 APPEAL AND ERROR, 68. IV. a. Co. V. Brunson, 43 Kan. 371, 23 Pac. In an action for the killing of stock, where both plaintiff and defendant introduced tes- timony respecting the broken-down condi- tion of gates at the place of the accident, the appellant cannot in the Supreme Court object that the evidence was introduced improperly. McMaster v. Montana Union R. Co., 49 Am.&' Eng. R. Cas. 564, 12 Mont. 163, 30 Pa. Rep. 268. 68. Exclusion of evidence.* — (i) Generally. — A judgment will not be reversed for error in excluding evidence whicli is merely cumulative. Gulf, C. Sf S. F. R. Co. V. Shearer, i Tex. Civ. App. 343, 2i S. W.Rep. 133. Where a company is sued for destroying property by fire the exclusion of the report of the engineer who was in charge of the locomotive starting the fire is not ground for reversal where the engineer himself is a witness, and states everything that is in the report. Chicago &• A. R. Co. v. Shenk, 30 III. App. ^Zd; reversed on another point, 131 ///. 283. Where the boy testified that he knew it was wrong to ride ^n the cars, and that he had often been driven away from them, the exclusion of evidence by the father that he had told the boy to keep away from them is harmless error. Brill v. Eddy, 1 1 5 Mo. 596, 22 S. W. Rep. 488. Where a certain rule adopted by a rail- road company is in question, and the court sanctions it, and instructs the jury that it is a legal and valid rule, it is not error to re- ject othe vidence tending to show that the rule ib -he same as that of railroad com- panies generally. Tracy v. New York &* H. R. Co., ()Bosw. {N. v.) 396. (2) Illustrations. — The error, if any, in excluding a question put to defendant's superintendent as to whether there was anything in the appearance of the broken rod "from which a person could tell whether there was a flaw in it previous to the time it broke, or how extensive that flaw was," was cured by allowing him to an- swer the question, " Is there anything in the condition of that iron which would in- dicate to you what its condition was at the time it broke? " Cowan v. Chicago, M. &» St. P. R. Co., 80 fVis. 284, 50 N. W. Rep. 180. • See also ante, 38. Where the trial court excluded evidence of a rule forbidding employ6s "jumping on or off trains or engines in motion, and get- ting between cars in motion to uncouple them," but the testimony for defendant showed a practical abandonment of the rule by employes and their managing superiors, the exclusion of that evidence was not prej- udicial error. Alcorn v. Chicago &* A. R. Co., 53 Am. (S- Eng. R. Cas. 87, 108 Mo. 81, 18 S. W. Rep. 188.— Reviewing Parker v. Georgia Pac. R. Co., 83 Ga. 539 ; Memphis & C. R. Co. V. Askew, 90 Ala. 5, 7 So. Rep. 823 ; Shenandoah Valley R. Co. v. Lucado, 86 Va. 422, 10 S. E. Rep. 422; Alexander v. Louisville & N. R., 83 Ky. 589. In a trial where the defense consists of proceedings under the provisions of the statute for the condemnation of certain real estate to the use of a railroad company, evidence was offered tending to prove that said real estate was necessary to said com- pany for the purpose of its business, which evidence was excluded. Evidence tending to prove the condemnation of the real estate by the railroad company was offered and received. It having been held in a former opinion of this court in the same case that said condemnation proceedings as proved were ineffectual on account of defects in the notices and other material matters of pro- cedure, without considering and before arriving at the point as to whether the real estate in question was necessary to the rail- road company or not— held, that the fact of said real estate being necessary to the said company, as affecting its power to con- demn, is ancillary to that of actual legal condemnation, and that actual legal condem- nation not being proved, the exclusion of the evidence under consideration was not reversible error. Chicago, B. &* Q. R. Co. v. Hull, 24 JVed. 740. On the trial the court refused to allow a witness of the plaintiff to testify as to an accident other than that in question, but subsequently a witness of the defendant testified that another accident happened, the plaintiff's counsel declaring that it was the same he sought to prove by the plaintiff's witness. It was not questioned that the accident occurred. Held, that if there was error in rejecting the evidence offered by tlip plaintiff, the same was harmless. Grant v. Raleigh &* G. R. Co., 108 N. Car. 462, 13 .S". E. Rep. 209. APPEAL AND ERROR, 69. 403 69. Improper remarks of counsel.* —(I) In general. — The practise of using language in an argument referable to facts not in evi('ence and calculated to rouse the prejudices of the jury against a party to the cause, should not be permitted. But when such language is used in response to similar lan<;uage used by the adverse counsel, and equally unauthorized, the party provoking such a course of argument will not be heard to complain on appeal. Texas &* P. R. Co. V. Garcia, 2i Am. &* Eng. R. Cas. 384, 62 Tex. 285. Where the jury appear to be uninfluenced by an improper appeal made by counsel in addressing them regarding matter outside of the record, the misconduct is immaterial. Gulf, C. &*S. F. R. Co. V. Fox, 33 ( Tex.) Am. &* Eng. R. Cas. 543, 6 5. W. Rep. 569. It is not reversible error Tor an attorney on the trial of a cause to comment in his closing argument upon the absence of wit- nesses or their non-production, when they are shown to be cognizant of the facts in issue. Missouri Pac. R. Co. v. White, 48 Am. &> Etig. R. Cas. 206, 80 Tex. 202, 1 5 5. fT. Rep. 808. It is not reversible error that plaintiff's counsel, in the closing argument to the jury, illustrated the force of a relevant physical fact by the use of apparatus not previously exhibited in evidence, and that the court, in the charge to the jury, com- mented upon the conclusive effect of the illustration. Hoffman v. Bloomsburg fi- S. R. Co., 143 Pa. S/. 503, 22 Ai/. Rep. 823. A statement by plaintiff's counsel in his argument to the jury that " we know that the accident occurred, from defendant's own agent," although not warranted by the testimony, is not prejudicial error where the /act of the occurrence of the accident is not disputed. Harris v. Detroit City R. Co., 76 Mich. : /,^2N.IV. Rep. i n i . It does not sufficiently appear that a jury, in an action to recover for damage done to cattle while being carried, weie unduly in- fluenced by the argument of plaintiff's coun- sel expressing a regret at the trial in court that a larger sum had not originally been claimed, it appearing that the case had been first tried before a justice, and that the jury in court renders no greater verdict than had been rendered in the trial before the justice. See also atife. 27, .39 ; fiosf, 97. Galveston, H. &> S A. R. Co. \. Johnson, (Ky) 195. W. Rep. 867. (2) Illustrations. — The plaintiff's counsel, in his closing argument to the jury, said : " For more than twenty years I have stood as a humble advocate of the people against the power of such monopolies as this." On objection thereto, the court observed that "the remark was very objectionable and must not be repeated, and the jury should entirely disregard it." Held, that the re- mark was culpably out of place, in violation of professional duty, and should meet a court's pointed rebuke ; but the court de- clined to reverse for that alone. Chicago &» A. R. Co. V. Johnson, 116 ///. 206, 4 N. E. Rep. 381. The court permitted plaintiff's counsel in his opening statement and closing argument to refer to the number of trials that had been had in the case and how they had resulted, and to state that the judgment on the first hearing had been reversed by a mere technicality. Held, that if the matter complained of was improper, it was not of so serious a character as to justify a reversal of a judgment in favor of the plaintiff. Chicago &* A. R. Co. v. Dillon, 32 Am. dr* Eng. R. Cas. i, 123 ///. 570, 1 5 A^. £". Rep. 181, 1 3 IVest. Rep, 286 ; affirming 24 ///. App. 203. A remark of counsel to an expert witness : " Remembering that you told us you ex- pected your extra fee in this case, I hope you won'tcharge the poor railroad company anything extra," is not objectionable unless it appears that great injustice has been done to the party complaining of such remark. Chicago, B. &* Q. R. Co. v. Sullivan, {III) 17 N. E. Rep. 460. It appeared that the attorney for the company in his argument to the jury used improper language, which provoked plain- tiff's attorney to also use very improper language, which was assigned as error by the defendant. Held, that the court would not attempt to justify a wrong by the second attorney by way of retaliation, still the judgment will not be reversed on that ground where there is nothing in the verdict to indicate that the jury were misled by such remarks. Gulf, C. &• S. F. R. Co. v. IVifte, 68 Tejt. 295, 4 S. IV. Rep. 490. Plaintiff's counsel in his closing argu- ments said : " I do not agree with my co- counsel that $ro,ooo is enough. Ten thou- sand dollars is a small sum compared with m m m I 404 APPEAL AND ERROR, 70-72. £ the injuries my client has received. I feel as deep an interest in this case as any I ever tried. It is true that I have a pecuniary interest in the result myself, but the interest I feel on this account is insignificant when compared with the great interest I feel for my client." Held, that since it did not appear that the remarks prejudiced the jury or worked injury to the defendant, a verdict for the plaintiff should not be disturbed on account of such talk. Missouri Pac. R. Co. V. White, 48 Am. &* Eng. R. Cas. 206, 80 7V.tr. 202, 15 S. W. Rep. 808. A female passenger sued for being carried past her station and being put ofT at a lonely place unprotected in the night-time. In his argument to the jury her counsel used, among other words, tlie following : " I want you to understand, gentlemen of the jury, that your verdict in this case will be remem- bered as an evidence of the estimate of tlie rights of women of the country, and your families, as to the respect and protection due them at the hands of the railroad, and as you estimate them and their rights, so find by your verdict." //^/((/, conceding that the language was reprehensible, yet a ver- dict will not be set aside in favor of the plaintiff where it is clearly supported by the evidence. Texas &• P. R. Co. v. Pollard, 2 Tex. App. (Civ. Cas:) 424. A verdict for $30,000 had been set aside. On the second trial counsel for the plaintiff, in an argument to the court in the presence of the jury, referred to the former verdict, claiming that in view of additional facts shown the damages then awarded would not now be excessive. Held, that these remarks were not so outside of the case as to justify a reversal of the judgment, especially as the second verdict was for only $18,500. Heddles V. Chicago 6- A^. W. R. Co., 77 Wis. 228, 46 A^. W.Rep. 115. Plaintiff's counsel, in addressing the jury, said that " the defendant can bring experts from one end of the world to the other to defeat [the plaintiff). They have money enough to do if," but in the closing argu- ment for plaintiff this remark was expressly discountenanced. It not appearing affirma- tively that defendant was prejudiced, an ex- ception to the remark was overruled. Dugan V. Chicago, St. P., M. <&* O. R. Co., 85 Wis. 609, 55 V. W. Rep. 894. 70. Improper instrnetioiiH, k<'i>- ornlly.* — Where the instructions given * Sec also ante, 40-53. cover the law of a case, an omission to par- ticularize more fully is not ground for re- versal, unless the trial court is asked to give special instructions. Gulf, C. 6f S. F. R. Co. V. Shearer, i Tex. Civ. App. 343, 21 S. W. Rep. 133. Where the negligence of the defendant company, if any, has been slight, and that of the plaintiff, gross, and where, had the verdict been different, the court must have set it aside, the court will not reverse the judgment and remand the cause, even though there are errors in some of the instructions. Foster v. Chicago Sr* A. R. Co.. 94 ///. 164, 16 Am. Ry. Rep. 452. Where a claim for damages is based upon two acts of negligence, a judgment based upon a general verdict for the damages sus- tained from both causes will not be reversed for an error of'the trial court in instructing as to one of the acts of negligence. Cady v, Chicago, M. &^ St. P. R. Co., 5 /> Eng. R. Cas. 425, 70 Tex. 553, 8 i'. li'. Rep. 129. An instruction which does not injure the complaining party is not ground for re- versal. So /leld, where a street-car company was sued for injuring a child on the track, and it did not appear that the child was seen by the driver, but the court instructed as to the degree of care required where a person is seen on the track. Giraldo v. Coney Island 6- B. R. Co., 16 N. Y. Supp. 774. 62 Hun 620, 42 A^. K 5. .ff. 9 1 5 ; affirmed »« 1 35 A^. Y. 648, mem. ; 48 A^. Y. S. /?. 931. A railroad company being bound to ex- ercise the highest degree of care that hu- man foresight can provide in carrying pass- engers to their journey's end, an instruction that if the employes of the company, i.e., the fireman and brakeman, moved or " per- mitted the engine to be moved, without the consent of the engineer, whether within the scope of their employ- ment or not," the company would be liable for injuries arising there- from, will not be a ground for reversal, if the circumstances are such that the com- pany would be liable for the acts of the fire- man and brakeman in any event. Lakin v. Oregon Of P. R. Co., 34 Am. &• Eng. R. Cas. 500, 15 Oreg. 220, 15 Pac. Rep. 641. The accident in which the plaintifT was injured having been caused by the spread- ing of the rails, the defendant asked two instructions, to the effect that the fact that the switch at which the car left the track was not locked did not constitute negligence, if the purpose of the lock was not to pre- vent spreading of the rails. These instruc- tions the court modified by adding the words, " if the defendant used due care and diligence, as herein expressed, to otherwise fasten and secure the switch." Held, that as the verdict would have been for the de- fendant if the jury had found that the de- fendant had used due care to fasten and secure the switch, the modification of the instruction was without prejudice to the defendant. Flanagan v. Baltimore &• O. R. Co., 83 foTva 639, 50 A^. IV. Rep. 60. 74. Instructions which did not mislead the jury.*— Where the court, in charging the jury, defines the different de- grees of negligence, and instructs the jury that the only question for them to determine •See also ,int,; rtO. .iii 406 APPEAL AND ERROR, 75-77. is the negligence of the respective parlies, and that if they find from the evidence that the defendant had done "wrong" and caused the injury, the prima-facie case for com- pensation was made out, the use of the word " wrong " instead of the word " negligence " is not so misleading as to be cause for re- versal. Union Pac. R. Co. v. Henry, 36 Kan. 565, 14 Pac. Rep. I.— Quoting Kansas Pac. R.Co. V. Pointer, 14 Kan. 50. In an action under chapter 94 of the Kansas laws of 1874, to recover for stock killed, in which it was claimed that the fence over which the stock passed onto the rail- road track was defective and insufficient, the court quoted in its instructions §§ 2561, 2562, and 2563, Comp. Laws 1879. Held, that al- though some parts of those sections may not have been applicable to a fence of the kind and materials disclosed by the testimony, there can be no reason to believe that the jury were misled in the least thereby. Kan- sas City, Ft. S. &* G. R. Co. v. Hay, 13 Am. &• Eng, R. Cas. 600, 31 Kan, 177, i Pac. Rep. 766. An elevated railway was sued to recover for personal injuries received by plaintiff while a passenger during what is known as the great New York blizzard of March 12, 1 888. After the court had charged as to the liability of the company for results produced by unexpected and unforeseen storms, that it was not liable for injuries resulting from such storms as could not be guarded against by due care, and that the company was not bound to anticipate and provide against such storms as had never been known within practical experience in the locality ; it then added that "the railroad and its servants and agents must exercise the care which is necessary under those circumstances to pre- vent accidents." Held, that this latter qual- ification was error, but as it appeared from the entire charge that the jury could not have been misled, it was not ground for re- versal. Connelly v. Manhattan El. R. Co., 52 N. Y. S. R. 462. In an action to recover damages sustained by falling from a platform while boarding a railroad car, the charge to the jury called attention to the height of the platform as an element of danger, although the evidence did not show that the height in any way contributed to the accident. Held, not material, as the jury were not misled. Gulf, C. &* S. F. R. Co. V. Fo.v, (Tex) 33 Am. &» Eng. R. Cas. 543, 6 S. fV. Rep. $69. 75. Repetition of abstract princi- ples. — While the giving of undue promi- nence in a charge to some special feature of the case may sometimes be so calculated to influence a verdict as to afford cause for reversal, the mere repetition in a charge, in a suit for personal injuries, of the abstract principles that the jury might consider tlu; physical and mental suffering the plaintitT had endured, in estimating damages, cannot be regarded as calculated to affect a jury of ordinary intelligence, and will afford no ground for reversal. Houston «S>» T. C. R. Co. V. Larkin, 64 Tex. 454. The court in its charge repeated several times that a great degree of care was re- quired of the conductor of a train in expel- ling an insane woman from a car. Held, that the repetition of the statement could do no harm unless it induced the jury to believe that the court thought there was evidence showing a want of the requisite care. The repetition was not of a character to thus mislead the jury, and occurred only when it was necessary to qualify the principles ap- plicable to the different phases of the case. International &* G. N. R. Co. v. Leak, 64 Tex. 654. 76. In.striictions on the weig:lit of evidence. — A trial judge may express his opinion freely on the weight and value of evidence, and when he does so without mis- leading or controlling the jury in the dispo- sition of the facts there is no ground for reversal. Fredericks v. Nor t kern C. R. Co., in Pa. St. 103.— Quoting Leibigv. Steiner, 94 Pa. St. 466; Spear v. Philadelphia, W. & B. R. Co., 1 19 Pa. St. 61 ; Kilpatrickt/. Com., 31 Pa. St. 216. A charge which, taken together, means that the train had the right of way, but that it was the duty of the trainmen to keep a lookout for persons on the track, and to take steps to avoid injuring them if discov- ered, is not erroneous as being upon the weight of evidence. McDonald v. Inter- national &* G. N. R. Co., (Tex.) 55 Am. &* Eng. R. Cas. 280, 20 5. W. Rep. 847. 77. Instrnctions as to expert tes- timony. — Where several physicians testi- fied as experts as to the plaintiff's physical condition, the nature and extent of her in- juries, their probable consequences, etc., and the court thereupon instructed the jury, ex mero motu, "that the opinion of expert wit- nesses should not be substituted for such opinion as the jury may form from the APPEAL AND ERROR, 78, 7«. 407 iiei- omi- re of id to i for e, ill tract tin; ntifT mnot ry of no whole facts and whole evidence in the case ; * "that these opinions should be weighed along with all the other facts in the case ; " " that in no case should the jury accept the opinion of an expert as true, unless it agrees with their conclusions as based on all the facts Eng. R. Cas. 157, 91 Mo. 332, 1. S. IV. Rep. 315. Where a plaintiff in an action for personal injuries claims both actual and exemplary damages, the company cannot complain of a refusal of the court to instruct the jury touching exemplary damages, where the verdict of the jury is for actual damages only. Texas &^ P. R. Co. v. Watts, (TV.r.) 18 6: W. Rep. 312. Where a railroad company is sued for the negligence of its employes it cannot com- plain of the refusal of the trial court to give an instruction which it asks for, imposing a higher degree of care upon such employes than that imposed by the instruction which the court gave. Ft. Worth &> D. C. R. Co. v. Mackney, 83 Tex, 410. i8 5. W. Rep. 949. It may be error to refuse to charge that a railway company is required to exercise more than the usual amount of care in running its trains through populous towns, because of the greater peril ; still in an action for personal injuries such error is cured by a finding that the injury sued for was sus- tained through the negligence of the com- pany. McAdoo V. Richmond &* D. R. Co., 41 Am. &* Eng. R. Cas. 524, 105 N. Car. 140, i\ S. E. Rep. 316. In the absence of proof that plaintiff was in charge of the car at the time of the in- jury, except so far as implied in his service as brakeman, or had any duty of inspecting it, there was no error in refusing to charge that it was his duty to observe any defect in it, and to avoid it, if dangerous, and that his failure to do so would prevent a re- covery. Wedgwood v. Chicago &* N. W. R. Co., 44 Wis. 44, 19 Am. Ry. Rep. 393. In an action for injuries caused by collid- ing with a street car, the company requested * See also ante, 18, 53. an instruction that if plaintiff "wilfully" obstructed the passage of the car he was guilty of contributory negligence. The court had already instructed as to plaintiff's duty to turn off the track, and that a failure to do so would constitute contributory negligence. Held, that a denial of the re- quest was no ground for the reversal of a judgment. Qttinn v. Atlantic Ave. R. Co., 12 A'. Y. Supp, 223.— Followed in Wiite V. Brooklyn City R. Co., 4 Misc. (N. Y.) 286. A passenger sued an elevated railway company for injuries received, caused by the train starting before he had time to alight. The issue was whether an employe of the company or a stranger pulled the bell-cord and caused the train to start. The court fully instructed the jury as to the liability of the company in either case. Held, that after this a refusal to charge that there was no proof that the company's service was faulty, or that the bell-cord was improperly located, was not prejudicial to the defend- ant. Ferry v. Manhattan R. Co., 44 Am. &* Eng, R. Cas. 331, 118 A^. V. 497, 23 A^ /•". Rep. 822, 29 A'. V. S. R. 933 ; affirming 22 J. &- S. 325, 6 A^. Y. S. R. 821. In an action for personal injuries there was positive evidence by plaintiff's physician that he would never recover from his in- juries. Held, that a refusal to charge iliat there was no evidence to justify an allow- ance for future damages or for permanent disability was not error. Johnson v. Broad- way Of S. A. R. Co., 2 Silv. Sup. Ct. 532. Plaintiff, a passenger, sued two railroad companies for a personal injurj' received by his train colliding with a freight train on the other road, at a point where the two tracks crossed. It appeared that the freight train was running "wild." Held, that, as defendant's liability was fixed by conclusive evidence showing negligence at the cross- ing, the refusal of the court to instruct as to whether a statute requiring trains to run on schedule time was applicable to such case or not was harmless error. Kansas City, Ft. S. 6- Af. R. Co. v. Stoner, 52 Am. 6- Eng. R. Cas. 462, 51 Fed. Rep. 649, 4 U. S. App. 109, 2 C. C. A. 437.— Following j Iron S. M. Co. v. Mike & S., G. & S. M. Co., | 143 U. S. 394, 12 Sup. Ct. Rep. 543, Quot- ing Smith V. Shoemaker, 17 Wall. (U. S.) 630. 84. Refusal to direct venlict.*— A case may be presented in which the re- * See also post, lOl. APPEAL AND KRKOK, H5. 411 fasal to direct a verdict for the defendant at the close of plaintiff's testimony will be a good ground for the reversal of a judg- ment in favor of the plaintiff if defendant rests his case on such testimony and intro- duces none on his own behalf ; but where a railroad company is sued for personal in- juries to a fireman, and the company goes on with its defense and puts in testimony after such refusal ; and the jury, under proper instructions, find against the company on the whole evidence, a judjjment will not be reversed, in the absence of defendant's test i- mony, on account of the original refusal, even though it would not have been wrong to give the instruction at the time it was asked. Grand Trunk A'. Co. v. Cummings, io6 U. S. 709, I Suf>. Ct. Rep. 493. 85. Errors cured by other parts of the charge. — (i) General rules. — Every charge of a court to a jury must be tested by the facts to which it is applicable; the announcement, therefore, of a general prin- ciple in a charge, which in the abstract may be wrong, will not be cause for reversal if it was so modified by the charge, in view of the facts of the case, that it could not affect the rights of the party complaining. Texas &* P. R. Co. V. Wright, 23 Am. &• Eng. R. Cas. 304, 62 Tex. 515. Although one part of a charge, when taken alone, may be inaccurate or seem to intimate an opinion on the evidence, yet if the whole charge, taken together, lays down the law correctly, and is sufficiently clear to be understood by jurors of ordinary capacity and understanding, it is sufficient, and a reversal will not be granted. Georgia R. Co. V. Thomas, 73 Ga. 350. An error of law in instructing for the ap- pellee is no ground for reversal where the same proposition of law is given in an in- struction for the appellant. Crutchfieldv, St. Louis, K. C. f plaintiff, the error will be harmless when that requirement is promi- nently set forth as an essential element to a recovery in other instructions on both sides. Chicago &* A. R. Co. v. Johnson, 116 ///. 206, 4 A'^ E. Rep. 381. Dougherty v. Mis- souri R. Co., 34 Am. , Metropolitan El. K. Co.. 58 Hun (N. Y.) S17. 36 N- Y. S. R. 2, 12 N. Y. Supp. 848. 8t>. CaHCH where, on the whole, JiiMtice has been done. — Errurs in charging the jury are no groimd for revers- ing a judgment which is clearly right. Taylor v. Danville, O. &* O. R. Co., 10 ///. App.iM. The fact that the trial court did not em- phasize the rule as to the highest degree of care, skill, and prudence required on the part of the company did not furnish a ground for reversal, as, in view of the un- contradicted testimony in the case as to the injury having been caused by the criminal act of a stranger, it was only necessary ti inquire whether defendant had rebutted the presumption of negligence which arose from the fact of the injury. Fredericks v. Nortl. rn C. R. Co., (Pa.) 58 Am. &* PS/ig. R. Cajr. 41.— Quoting Spear z/. Philadelphia, W. &B. R. Co., 119 Pa. St. 61. Nor did the fact that the court expressed its opinion that the precautions taken by the defendant were sufficient to relieve it of the charge of negligence, constitute rever- sible error where the jury were distinctly told that the question was for their decision, and they were left entirely free to act upon their own judgment. Fredericks v. Northern C. R. Co., {Pa.) 58 Am. &* Eng. R. Ca.\. 91. Where the verdict against a railway com- pany for killing stock by the careless run- ning of a train is satisfactory to the trial judge, and is also satisfactory to this court upon the substantial merits) of the contro- versy, tested by the evidence adduced by the company itself, the case will not be remanded for a new trial on account of mistakes or inaccuracies in the ciiarge of the court to the jury. East Tenn., V. Eng. R. Cas. 485. A complaint against the "Wichita & Southwestern Company," as a corpora- tion, omitting the word " railroad," bu; subsequently describing the corporation by its full name, is not ground for reversing a judgment where no objection is made in the trial court. Atchison, '/'. Hh S. E. R. Co. V. English, 38 Kat,. 1 10, 16 Pac. Rep. 82. In an action against common curriers, an objection that the declaration docs not al- lege tliiit the defendants were common car- riers should be made in the court below, or it is niH open on u bill of exceptions. San- ford V. Housatoni'- R, Co., 11 Cush, {Mass.) «55- Under N. Y. act of 1850, p. 232, an objec- tion, where a passenger, who holds a check for lost baggage sues, that the compiaint does not allege that he was a passenger, cannot be i aised for the first time on appeal. Davis V. Cayuga (S~» S. R, Co., 10 How. J'r, (.V. K)330. Where there are four counts in an action against a railroad for killing stock, all sim- ilar except as to the description of the stock killed, the supreme court will not reverse the cause because a general judgment on all the counts was rendered for plaintiff, wlien such question was not brought before the lower court in the motion for a new trial. Eickle v. St. Louis, K. C. &* N. R. Co., 54 Mo. 219, 12 Am. Ry. Rep. 376. — Quoted in Sweet v. Maupin, 65 Mo. 65. After a trial on the merits it is too late for the defendant then to object that the question whether it had placed a competent man in charge of the work was not raised by the pleadings. Where pleadings wouL. have been amendable of course in the court below, the amendment will be consid- ered as having been made. Trainor v. Philadelphia &^ R. R. Co., 137 Pa. St. 148, 20 Atl. Rep. 632. It was objected that an action against a railroad company for killing stock was tried and presented to the jury upon issues not raised in the pleadings. There were special exceptions, but none as to this ob- jection. Held, that the making of specific exceptions in the court below must be re- garded as a waiver of others not urged. Price V. Burlington, C. R. &* M. R. Co., 42 Iowa 16. In an action against a raiload company for trespass in constructing and operating its railroad upon a public street in a citv, between the centre thereof and plaintiff's adjacent lots, the complaint properly dc- APPEAL AND ERROR, «:», »4. 41.') KCribed the lots, and alleged that the tres- pass was committed thereon, but did not allef^e plaintiff's ownership of the fee to the centre of the street in front of the lots, The answer admitted, und the evidence at the trial proved, that the road was con- structed in the street, but no objection was taken in the court below on tlic ground that the complaint failed to describe prop- erly the locus in quo, and it appeared that the defendant had not been misled or prejudiced by the description in the com- plaint. HeiJ, that an objection to such description could not be taken for the first time in the appellate court. Harts v. St. Paul&* S. C. /i. Co., 21 Minn. 358, 18 Aui. Ay. AV/. 430. 03. Objections to conipcteiioy of jlirurs.— In an action against a railroad to recover damages to real estate caused by the location and building of its road, objec- tions to the competency of jurors on ac- count of bias in favor of the landowner must be assigned in the motion for a new trial, to be available in the supreme court. Hastings &* G. I. R. Co. v. Ingalls, 1 5 Neb. 123. — Followed in Weir v. Burlington & .M. R. R. Co., 19 Neb. 212. 04. Objectioiig to competency of evidence. — (i) General rules. — General objections to the admission of evidence are sufficient on appeal if it appears that the ground for objection could not have been misunderstood, and, if it had been specified, the objection could not have been obviated. Tozerv. New York C. 6- H. R. R. Co., 8 N. V. S. R. 56. 105 A^. v. 659, I Silv. App- 450. Where a case is tried by the court with- out a jury, and there is abundant evi- dence, which is not objected to, to sup- port the findings, an appellate court will sustain a judgment where the objections to evidence do not sufficiently point out error to enable the complaining party to niise the point intended. Bohlen v. Met- ropolitan El. R. Co., 39 A'. Y. S. R. 151, 14 A^. Y. Supp. 378, 27 /. &* S. 56s ; re- versed in 133 N. Y. 677, mem.; i\ N. E. Rep. 626. 45 A^. Y. S. R. 931.— Distinguishing McGean ■;•. Manhattan R. Co., 117 N. Y. 219, 27 N. Y. S. U. 337; Avery v. New York C. R. & H. R. R. Co., lai N. Y. 31. 30 N. Y. S. R. 471. When on the trial no objection was made to any evidence on which the plain- tiff relied to sustain his claim for damages, and a verdict for the plaintiff showed the special grounds on which the jury rested their verdict, the pleadings being sufllicient to authorize such verdict, in support of which there was some evidence, tlir judg- ment was not reversed on appeal. Houston, E. A- W. T. R. Co. V. Hardy, 61 TV.r. 230. Where the question was a proper one to put to the witness it is no ground for a new trial that the answer was objectionable, when no motion was made in the court below to strike out the answer, Woodiey v. lialtimore » Eng. R. Cas. 545, 33 Minn. 311, 53 Am, Rep. 35, 23 A^. W. Rep. 229. Where a railroad, without objection, per- mits the introduction of evidence to show that the company had not afforded an em- ploy6 a safe place to work and had not properly protected him against the care- lessness of fellow-servants, the complaint charging that he was injured by reason of the careless management of the company's train, without fault on his part, it cannot be objected after a verdict that the evidence was improperly admitted as showing negli- gence not charged in the complaint. St. Louis, A. &- T. R. Co. v. Triplett, 54 Ark. 289, 16 5. W. Rep. 266. 15 S. W. Rep. 831. —Quoting St. Louis, I. M. & S. R. Co. v. Harper, 44 Ark. 527. Where evidence in relation to certain damage is admitted without objection or exception at the trial, the propriety of in- including such damage, if any, in the assess- ment cannot be questioned on appeal. Colo- rado Midland R. Co. v. Brown, 47 Am. &> Eiig. R. Cas. 164, 15 Colo. 193, 25 Pac. Rep. 87. (2) Illustrations. — A company when sued for negligently causing the death of a minor pleaded as a defense a release of damages by the plaintiff. Plaintiff did not • I I-' ■111®^ 416 APPEAL AND ERROR, 9.1-07. g ^ ■'■5'" deny the execution of the release in the manner required by Cal. Code of Civ. Proc. § 448, but was permitted to prove, without objection, that at the time the re- lease was executed he was not competent to contract. The verdict being for plaintiff, defendant objected that there was no issue as to the execution of the release, and that by failing to make the affidavit required by said section the execution of the release was admitted. //eM, that the question could not be raised in the supreme court, and that it was not tenable. Crowley v. City R. Co. , 60 Cai. 628. A witness was permitted to testify to the condition of a roadbed of a railroad a year after an accident there. He was on the train derailed, and assisted the party injured and the other passengers out of the wreck, and testified tnat he then saw pieces of broken rail and some rotten ties, but his attention was not particularly directed to them, and estimated the number of rotten ties on the roadbed at one out of every five. It turned ou* on cross-examination that the estimate was, in part at least, based upon an exami- nation of the ties and track made by him shortly before the trial. No objection was made on the trial to this evidence or motion to exclude the same. // H. R. R. Co., 23 A". Y. Supp. 197. Where a defendant submits the question of negligence to the jury by an instruction, he will be estopped, on appeal or error, from claiming that there was no proof of negli- gence. Consolidated Coal Co. v. Haenni, 146 ///. 614, 35 N. E. Rep. 162. I D. R. D.— 27. Where the defendant's attorney, upon the trial, submitted to an alleged error in the charge, and encouraged it by preparing and submitting requests to charge upon the point, in which he recognized the propriety of its consideration as an element of damage, it is too late on appeal to urge error in this particular. Redmond \. St. Paul, M. &^ M. R. Co., 39 Minn. 248, 40 N. IV. Rep. 64. When an exception is reserved to a charge which contains two or more distinct or sep- arable propositions, the attention of the court should be directed to the precise point of objection. An exception " to this charge and to each part thereof, separately and suc- cessively," will be construed as a general exception to the entire charge. South &* N. Ala, R. Co. V. Jones, 56 Ala. 507.— QUOTED IN Mobile & M. R. Co. v. Jurey, iii U. S. 584. Where suit is brought to recover for in- juries to a team, and no claim is made in the complaint for injury to the harness, and the evidence relating thereto is stricken out on motion of defendant, an instruction that the jury should allow for the harness, not objected to at the time, is not reversible error. Leak v. Rio Grande IV. R. Co., 9 Utah 246, 33 Pac. Rep. 1045. 99. Objections to prayer for in- structions.— The plaintiff, while going over a railroad crossing, had his foot fast- ened in a hole in a culvert which covered a little drain that ran along the side of the track. While in this condition an engine backed down upon him and cut off his foot. At the trial the plaintiff offered ten prayers, which were all granted by the court. The defendants made objections. Held, that where prayers of the opposite party are excepted to only on the ground of want of evidence to support them, the objection that they are incorrect as legal propositions is deemed waived, and will not be considered on appeal. Baltimore &• O. R. Co. v. Mali, 28 Am. 6- Eng. R. Cas. 628, 66 Md. 53, 5 Atl. Rep. 87. 1 00. Necessity of request to charge. — (i) General rules. — When the statement of the cause of action and of the defense made by the court in its charge is correct as far as it goes, it is the duty of a party desiring further instructions to ask for them, other- wise he cannot complain that they are not given. San Antonio St. R. Co. v. Helm, 19 Am. 6- Eng. R. Cas. 158. 64 Tex. 147. In the absence of a request for a more ti 418 APPEAL AND ERROR, lOO. »,;' specific charge, a judgment, in an action against a street-car company to recover for personal injuries to a passenger, will not be reversed on the ground that no sufficient instruction was given the jury by which to determine the da* -ages. Pederson v. Seattle Con. St. R. Co., 6 Wash. 202, 33 Pac. Rep. 351, 34 Pac. Rep. 665. Where a passenger sues for being ejected from the cars after he had surrendered a ticket, as he claimed, and the defense is made that he was ejected because he never had or surrendered a ticket, and that he was intoxicated and used unbecoming lan- guage, the want of an instruction in rela- tion to the right of the conductor to remove the plaintiff, if intoxicated, or using im- proper language, is not the subject of ex- ception where no request was made for such instruction. Moore v. Fitchburg R. Co., 4 Gray (Mass.) 465. Where a company is sued to recover for personal injuries, and relies on contributory negligence as a defense, after the court has properly instructed the jury as to the " or- dinary care " that the company should use to prevent injuries, it is not ground for ex- ception that the court fails to instruct as to the effect of contributory negligence, where no request is made for such additional in- struction. Baltimore &* O. R. Co. v. Ba/irs, 28 Afd. 647. //art v. Charlotte, C. &* A. R. Co., 33 So. Car. 427, 12 S. E. Rep. 9. The failure of the court to define " unfit, ness gross negligence, and carelessness," which it instructed the jury would author- ize a recovery by plaintiff, is not reversible error when defendant's counsel requested no definition of such terms. Galveston, //. &* S. A, R. Co., V. Art'spe, 48 Am. &> Eng. R. Cas. 350, 81 Tex. 517, 17 5. W. Rep. 47. Error cannot be predicated upon the omission of the court to define the terms "diligence," "negligence," and "extraor- dinary care " employed in instructions to the jury in an action for personal injuries, when the party complaining of such omis- sion has failed to ask the court to define the terms. Cogswell v. West St. &* N. E. Elect. R. Co.. 52 Am. 6- Eng. R. Cas. 500, 5 Wash. 46. 31 Pac. Rep. 411. Instructions to the jury, defining negli- gence as " failure to exercise that degree of care which persons ordinarily exercise under like circumstances," and ordinary care as " such care and prudence as may reasonably be expected of a woman of the age plaintiff was under tlie circumstances in which she was placed," are held, though somewhat meagre, not to be erroneous, in the absence of any request to make them more full. Patrjf V. Chicago, St. P., M. &• O. R. Co., 82 Wis. 408, 52 A^. W. Rep. 312. (2) /llustrations. — The court below, at the request of the plaintiff, instructed the jury upon four separate and distinct proposi- tions, the first two containing only state- ments of facts not disputed, the last two propositions of law conceded to be correct. //eld, on appeal, that if the defendants claimed that, in considering the last two propositions the jury had no right to take into account the facts stated in the first two, and claimed that the jury might have been led to do so by the fact that the court stated those facts, they should have asked the court to give such instruction as would guard against it ; and, not having done so, they could not insist upon the objection in the appellate court. Hartson v. First Div. St. P. 6- P. R. Co., 21 Mrnn. 517. The plaintiff, a coal-handler, was injured while employed about an appliance for the storage of coal, dangerous and unfamiliar to him, and placed in the charge of a fel- low-employe during the temporary absence of the regular foreman, the appliance being supplied by a contractor who was to "erect and operate it " at his own expense, //eld, that the question whether the temporary foreman was competent to manage the ap- pliance having been fairly raised by the evi- dence, and the trial judge having correctly . stated who were fellow-servants, error can- not be assigned to the omission of specific instructions as to the relation of the fore- man to the plaintiff, where no request for them was made. Trainor v. Philadelphia &* R. R. Co., 137 Pa. St. 148. 20 Atl. Rep. 632. Suit was prosecuted against a company by parents for negligently causing the death of their son, who Wc.;; an employ6 of defend- ant. The court instructed the jury that if the death was caused by the "unfitness, gross negligence, and carelessness " of the officers of the company, then they must find for the plaintiff. Held, that, in the ab- sence of any request by the defendant for a definition of these terms, a failure to so de- fin'j them was not ground for reversal. Galveston, H. &* S. A. R. Co. v. Arispe, 48 Atn. &* Eng. R. Cas. 350, 81 Tex. 517, 17 S. W. Rep. 47. APPEAL AND ERROR, 101-105. 419 101. Necessity of motion to direct verdict.*— In the absence of a request for a direction to find for the defendant, on the trial of an action for personal injuries, it can- not be alleged that the case should have been taken from the jury, on the ground of con- tributory negligence and that the injury was received under a risk apparent and as- sumed by the plaintifl as incident to his employment. Bentley v. Cranmer. 137 Pa. St. 244, 20 Atl. Rep. 709. 102. Objections to findings of fact. —If the conclusions of fact by the court are not sufficiently full and specific, the at- tention of the court should be called to the defect by motion, exceptions, or in some other proper method, otherwise it will not be considered on appeal. The findings of fact by the court stand on the same footing, in this respect, as the verdict of a jury. Gulf, C. (S- 5. F. Ji. Co. V. Fossett, 66 Tex. 338, I S. IV. Rep. 259.— Following Inter- national & G. N. R. Co. V. Smith, 62 Tex. 252 ; Belo V. Wren, 63 Tex. 727; Moehring V. Hall, 66 Tex. 240. The referee found that defendant " re- ceived into its care the said plaintiff and his baggage, consisting of one trunk con- taining his personal effects," and that the value thereof was $554. These findings wiMc excepted to. It was claimed by de- f "HJjin, on appeal, that certain of the arti- cles contained in the trunk, and included in the findings, were not in fact baggage. Held, that the exception was not available to present the question ; that it should have pointed out and designated the specific arti- cles claimed not to have been properly in- cluded. Ledoux V. Grand Trunk R. Co., 61 A^. Y. 613 103. Objections to the judgrment. — An objection that a judgment is for a greater amount than the sum claimed in the complaint cannot be raised for the first time on appeal. Government St. R. Co. v. Hanlon, 53 Ala, 70. An objection that a judgment against a railroad company for destroying grain by fire included some grown on the company's right of way cannot be raised for the first time on appeal. Slossen v. Burlington, C. R. oli- tan El. R. Co., 4 Silv. App. {N. Y.) 82. Where an infant passenger is injured and sues for damages, the question of his right to recover for a diminished power to earn money during minority cannot be raised on APPEAL AND liRROK, lOK-llO. Vn A'. appeal for the first time. Richmond v. Second Ave. R. Co., 27 N. Y. Supp. 780. When there is a mistrial of a cause and tlie jury is discharged, the cause may be again tried at the same term, and no objec- tion on account of such second trial can be considered on appeal, unless . motion was made in the court below to continue for the term or postpone to a later day in the term. Texas &~ P. R. Co. v. Garcia, 2i Am. &• Eng. R. CrtJ. '384, 62 Tex. 285. Where a party does not insist on his right to arbitrate, but goes to trial on the merits, the error in refusing an arbitration cannot be raised on appeal. London, C. &* D. R, Co. V. South Eastern R. Co., 40 Ch. D. 100. A suit to recover damages to adjacent property, caused by the location and opera- tion of a railroad, was tried by both parties on the theory that plaintifT was entitled to recover any diminution in the value of his property caused by such location and oper- ation. Held, that, if the suit was not tried on the correct theory, neither party could take advantage of it on appeal. Chicago &* G. IV. R. Co. V. IVede/, 44 ///. App. 215. Ill an action to recover damages to plain- tiff's premises caused by the maintenance and operation of defendant's road, the de- fendant claimed upon appeal to this court that the premises being in the possession of tenants under plaintiff, he could not main- tain the action. No such defense was pleaded, nor was the question in any man- ner raised upon the trial. He/d, that the point could not be considered in the court of appeals. Post v. Manhattan R. Co., 125 125 M Y. 697, 26 A^. E.Rep. 14, 3 Silv.App. 274, 34 A^. Y. S. R. 590 ; affirmine: 23 N. Y. S. R. 1007. Where, under N. C. Rev. Code, ch. 17, § 7, in a proceeding by a warrant, upon an appeal to the superior court, a verdict was taken for the value of an animal killed on a railroad— ^^W, that it was too late to take the objection in the appellate court that the judgment of the justice of the peace was rendered without a valuation of the animal by freeholders. Aycock v. Wilmington &* W. R. Co., 6 Jones (N. Car.) 231. 5. Matters not apparent on the record. 108. TlieKeueral rule.— The supreme court cannot revise the action of the courts below on account of facts not included in the case. Chicago, M. &* St. P. R. Co. v. Wilson, 42 Am. &* Etig. R. Cas. 153, 133 ///. 55, 24 A'^, E. Rep. 555 ; affirming 35 ///. App. 346. The appellate court will not entertain an appeal, in an action against a carrier for in- juries to a horse while in transit, where the abstract does not contain the substance of the record as to the parts assigned as error. Chicago &* G. T. R. Co. v. Crolie, 33 ///. App. 17- 109. SuflBciency of the record, generally.— Courts will take judicial no- tice of the public laws of the state, and they need not be specially pleaded or inserted in the record on appeal, and this is so of a public act incorporating a railroad com- pany. Cincinnati, H. in, 46 Ind. 180. The supreme court cannot pass on the effect of misconduct of counsel below, when the only reference thereto in the record is in the form of a statement contained in the motion for a new trial. Gray v. Chicago, M. &» St. P. R. Co., 7S Iowa 100, 39 N. W. Rep. 213. That the attention of the court, on a motion for a new trial, was called to the fact that defendant had accepted the provi- sions of the act of April 4, 1868, P. L. 58, limiting the liability of railroad companies to $5000 in case of death caused by their negligence, it not having been offered in evidence on the trial, does not put it upon the record. In such case the supreme court will not pass upon the effect of Article III, § 3, of the constitution, on the acceptance of said act by defendant. Phila- delphia, W. 6- B. R. Co. V. Conway. 112 Pa. St. 511,4 Atl. Rep. 362. — Explaining Lang- don V. Pennsylvania R. Co., 92 Pa. St. 21. 110. or of recitals therein.— Where a railroad company and another are sued, a record of the trial court reciting that "the defendants were severally duly called, but came not, nor either of them," is sufficient to show that the company was not present by attorney or otherwise. Union Pac. R. Co. v. Horney, 5 Kan. 340. 423 APPEAL AND ERROR, 111-113. In an action to recover damages for flood- ing plaintiff's land, a judgment entry, " General demurrer to plaintiff's trial amend- ment, overruled. Sjiecial exceptions, except the one of injury to the cattle, overruled," is too indefinite to show what exce|)tion was sustained, if any, where several were made relating to the same subject-matter. Broussard v. Sabine &* li. T. R. Co., 75 Tex. 702. 13 .S". \\\ Kep. 68. 111. Wliiit must appear in the record, generally. — The court of appeals will review upon appeal the determination of the courts below, even upon a discretion- ary order, where it appears that the decision was based on the ground of the want of power to grant the application ; and where the order is not intelligible without reading the opinion filed below, and it constitutes a part of the record, the court will look to it, where it is referred to in the order, and shows that the motion was denied upon the ground stated in such opinion. Tol- man v. Syracuse, B. &* N. Y. H. Co., 92 N. y- 353; reversing 2<) Hun 143. Improper language of counsel in his argu- ment to the jury will not be considered when only shown by affidavits. The ob- jectionable language should be in the record. Ray burn v. Central Iowa R. Co., 74 fowa 637. — Followed in Fowler v. Strawberry Hill, 74 Iowa 644. An objection that municipal bonds sued on were not stamped as required by the United States revenue laws cannot be con- sidered when the bill of exceptions in the case is silent as to whether they were stamped or not. Chambers County v. Clews, 21 WalliU. S.)3i7. Error of the court in refusing to dismiss an action of trespass on the ground that the same elements of damage were passed upon and paid for in a proceeding to coriemn the land, cannot be urged upon appe I unless so mucii of the proceedings of the uit for condemnation are brought up as is neces- sary to show that the grounds upon which recoveries were had in the two suits were identical. Downs v. Seattle &* M. R. Co., 5 IVasA. 778, 32 Pac. Rep. 745. 33 Pac. Rep. 973- Where witnesses in testifying refer to a map used on the trial, and without which their testimony is unintelligible, if an ap- pellant desires this court io consider the weight of such evidence, the map should be returned, with the places and objects to wiiich the witnesses referred identified, so as to make the evidence intelligible. La/- son V. Northern Pac. R. Co., 33 Minn. 20, 21 ^V. W.Rep.^id. Plaintiff sued for the killing of a horse in two paragraphs or counts, and a demurrer was sustained to the first, but damages were assessed and judgment rendered for plain- tiff. Held, that it was The right of tlie defendant to ask the court to instruct the jury to assess damages only under the good paragraph ; but where the record on appeal is silent on that point, the court will pre- sume that such course was taken, and will therefore sustain the judgment. Indian- apolis, P. &• C. R. Co. V. TaJ'e, 11 Ind. 458. — F'OLLOWED IN Indianapolis, P. & C. R. Co. V. Keeley, 23 Ind. 133. In an action by a conductor of a street car to recover for injuries received by collidin S. R. Co., 7 Am. &* Eng. R. Cas. 558, 73 Mo. 465.— Followed and distinguished IN Boswell V. St. Louis, I. M. & S. R. Co.. 73 Mo. 470. Under § 242 of the Montana Code of Civil Procedure, a direction to the jury to find for the defendant, on the ground of plain- tiff's contributory negligence, is a nonsuit, and if an appeal be taken by plaintiiT from the direction of the court he must incorpo- rate his evidence in the record. McKay v. Montana Union R. Co., {Mont.) 31 Pac. Rep. 999. The failure of a jury to determine the question of contributory negligence, whefe the same is made an issue, is only ground for the reversal of a judgment where the record contains evidence tending to show such con- tributory negligence. McNarra v. Chicago &> N. IV. R. Co., 41 IVis. 69. Although the refusal, at the close of plain- tiff's testimony, in a suit against a railroad for personal injuries, to direct a verdict for defendants would justify a reversal of a judgment against them, yet if they proceed with their defense and introduce testimony which is not in the record, the judgment on the verdict which the jury, under proper in- structions, find against them will not be re- versed on account of that refusal. Grand Trunk R, Co. v. Cummings, 1 1 Am. &* Eng. R. Cas. 254, 12 Am. &* Eng. R. Cas. 204, 106 U. S. 700, I Sup. Ct. Rep. 493. Where a company was enjoined from lay- ing its track over certain lands, but the in- junction was subject to be dissolved on pay- ing certain damages awarded to the land- owner, and the case is appealed, the supreme court has a right to hear evidence outside of the record, to show that such award has been paid and the case settled ; and it appearing by such evidence that the matters in dispute had been settled, and that the road is already constructed and in operation, the appeal will be dismissed. Atlanta &• F. R. Co. v. Blanton, 80 Ga. 563, 6 5. E. Rep. 584.— Quot- ing Dakota County v. Glidden, 113 U. S. 222. 1 14. or bill of exceptions.— Where a diagram of a locality, showing where stock was killed, is offered in evi- dence and rejected, it must be set out in a bill of exceptions, in order to reserve the question on the ruling. Indianapolis, P. S" C. R. Co. V. Irish, 40 Ind. 277. A bill of exceptions may contain all the evidence, although it appear that the jury were allowed to inspect the place where the matters referred to in the pleadings occurred. Jeffersonville, M. &* I. R. Co. v. Bowen, 40 Ind. 545.— Overruling Evansville, I. & C. S. L. R. Co. V. Cochran, 10 Ind. 560. A contractor sued to recover for work done under a contract providing that the estimates of the engineer were to be final, but charging fraud and collusion between the engineer and the defendant company in making the estimates. The court instructed the jury that the estimates of the engineer were conclusive if honestly made, but on ap- peal the bill of exceptions did not contain the contract nor any of the evidence to which the instruction related. Held, that the supreme court had nothing before it by which it could determine whether there was error in the ruling or not. Hinkle v. San Francisco &> N. P. R. Co., 55 Cal. 627. 6. Reviewing the Evidence or the Facts. 115. How far reviewable, gener- ally. — (i) Rule of non-interference. — It is the uniform practice of the supreme court not to disturb the verdict of a jury or the finding of a court on questions of fact when the verdict or finding is not clearly wrong on the evidence. Ft. Wayne, M. &* C. R. Co. V. Grove, 47 Ind. 1 33. Where there are circumstances strongly supporting the verdict of a jury, the supreme court will not disturb such verdict. Indian- apolis, P. 6* C. R. Co. V. Collingwood, 71 Ind. i' ■4 424 APPKAL AND ERROR, 115. Co. 7'. m 476.— Distinguishing Ohio &M. R. Cole, 41 Ind. 331. The verdict of a jury upon questions of fact properly submitted to it will not be dis- turbed on appeal in the absence of error in the record. Fisher v. Delaware (S>» ff. C. Co., 153 Pa. St. 279, 26 A//. Rep. 18. In all judiciiil proceedings in this state facts are for the jury, and there being evi- dence enough to support the verdict, and the true facts as found by the jury making a case recoverable under the common law as generally understood and ruled wherever that system prevails, and not at variance with the latest adjudications in South Caro- lina, where the accident occurred ; and the presiding judge having approved the finding of the jury, this court will not interfere ex- cept in cases of abuse of discretion. Atlanta &* C. A. L. R. Co. V. Tanner, 68 Ga. 384. No repetition by courts of review, that cer- tain evidence doer or does not sustain the verdict finding care or negligence in the par- ticular case, makes the conclusions of fact ar- rived at by such courts, and the language in which they express such conclusions, doc- trines of law for other cases. Chicago &* N. W. R. Co. v. Bouck, 33 ///. App. 123. The questions where and how a crossing should be built, and whether under or over defendant's tracks, were questions of fact for the trial court, and there being evidence to sustain its findings in these respects, and it appearing that it had fairly exercised its discretion, its determination could not be disturbed here. Buffalo S. 6- C. Co. v. Dela- ware, L. &* W. R. Co., 130 N. V. 152, 29 JV. E. Rep. \i\,\i N.Y.S. R. z^^', affirming 27 N. Y. S. R. 216. 7 N. V. Supp. 604. Where judgment was entered upon the award of a referee in a submission under Pa. act June 16, 1836, P. L. 718, § 6 (in this case an action ex delicto against a railroad company for unlawful discriminations), the specifications of error, relating chiefly to the referee's findings of fact, being approved by the court, and the testimony not being fully presented, the findings cannot be re- viewed, even if it were proper under the act. Borda v. Philadelphia S* R. R. Co., 141 Pa. St. 484, 21 Atl. Rep. 665. Where real estate has been condemned (or the purpose of a railroad, and damages have been awarded to a landowner by a jury, and the only error assigned in the supreme court is that the verdict is excessive, the court ordinarily will not vacate or modify it if based upon the evidence of witnesses acquainted with the land and capable of making a fair estimate. Omaha Belt R. Co. V. Johnson, 24 Ned. 707, 40 N. W. Rep. 134, —Followed in Fremont, E. & M. V. R. Co. V. Meeker, 28 Neb. 94. Where the jury believe that an injury to an employ6 was occasioned by the con- ductor's negligence, and without fault on plaintiff's part, and the trial judge refuses to grant a new trial, the court will let the ver- dict stand unless there was some abuse of his discretion. Georgia R. &* B. Co. v. Gohlwire, 56 Ga. 196. The supreme court will not disturb the finding of the jury on the question whether the servant at the time of the accident was engaged in the prudent and careful dis- charge of his duties in his employment. Gutridge v. Missouri Pac. R. Co., 105 Mo. 520, 16 5. W. Rep. 943. Where the proof shows that a cow was found on her back in the ditch at the side of the track dead, with the body bloated and blood oozing from her nose, a verdict finding that she was killed by a train will not be disturbed on appeal, though the court may have doubts as to its correctness. Chicago &* N. W. R. Co. v. Dement, 44 ///. 74.— Distinguished in Moore v. Burling- ton & W. R. Co., 31 Am. & Eng. R. Cas. 572, 72 Iowa 75, 33 N. W. Rep. 371. Quoted in Ohio & M. R. Co. v. Atleberry, 43 111. App. 80. Where in an action for injury to cattle at a farm crossing, where the railway ran through plaintiff's yard, the jury twice found for the plaintiff, acquitting him of all blame, and found the company guilty of negligence in not keeping a sufficient lookout on rounding the curve before coming to the crossing, the court refused to interfere. Bender v. Canada S. R. Co., 37 I/. C. Q. B. 25.— Applied in Bennett v. Grand Trunk R. Co., 3 Ont. 446. An animal was killed by a train where a small town was built up and used as a sta- tion. The road had been fenced at the place, but a gap had been opened by some one in front of the town. It was not dis- tinctly shown whether the town was laid out up to and along the railroad or not. Held, that the court on appeal would not find, in opposition to the trial court, that the company was not in fault in not closing up the fence. Indianapolis S- C. R. Co. v. Snelling, 16 Ind. 435. APPEAL AND l-KKOK, 115. 425 While always disposed to give to verdicts of juries all proper weight, the law of Lou- isiana imposes on the court the duty of re- viewing their findings on the facts as well as on the law»and when, upon the evidence before them, it appears that a verdict is naiiifestly erroneous, they are bound to reverse it. Olivier v. Louisville &* N. R. Co., 47 Am. (S- I£ng. R. Cas. 576, 43 La, Ann. 804, 9 So. Rep. 431. (2) Question of contributory negligence. — Where a railroad company is sued for negligently causing an injury, and contribu- tory negligence is relied upon as a defense, and the case is submitted to the jury on proper instructions as to the law of both negligence and contributory negligence, with direction to the jury to determine the case upon their own recollection of the evi- dence, a verdict for the plaintiff will not be disturbed. Akersloot v. Second Ave. R. Co., 40 iV. Y. S. R. 231, 27/. of. Held, that the supreme court cannot, under the evidence and as a matter of law, say that the finding of the jury is erroneous. St, Louis &> S, F, R, Co. v. Weaver, 28 Am. &* Eng, R, Cas. 341, 35 Kan. 412, 11 Pac. Rep, 408. A brakeman sued for injuries received while passing through a tunnel by striking an arch which was but 4 feet and 7 inches above the top of the car. At the first trial he testified that he was sitting down when he entered the tunnel, and a judgment in his favor was reversed on the ground that, if sitting on the top of the car it was im- possible for him to come in contact with the arch. At a second trial he testified that he was sitting down, but rose up as he en- tered the tunnel, and that he was not asked on the first trial whether he stood up. Held, that a verdict in his favor would not be dis- turbed on appeal. Hunter v. New York, O. &* W. R. Co., ID A^. Y, Supp, 795. In an action for the non-delivery of a car- load of lumber, where the evidence shows that the car was placed on a side-track in the presence of the agents of the consignee, and that he or some of his employes jumped on the car and, pulling out a- piece of the lumber, said, "This is the lumber we have been waiting for," a judgment for the de-. I: !■ 426 APPliAL AND ERROR, 110,117. IW f (endant will not be disturbed on appeal. Armistead L, Co. v. Louimillf, N. O. &* T. A*. Co., (Miss.) II So. Kep. 472. A company was sued to recover for a house which was washed away, as alicijed, by the negligent construction of a railroad em- bankment. The evidence showed thai the embankment did raise the water, hut it was not shown that tiie increased deptii of water contributed to the destruction of the iiuusc. Held, that a finding tiiat it did not do so will not be disturbed on appeal. Ilfrey v. Sabine &* E. T. R. Co., 76 Tex. 63, 13 S. W. Kep. 165. lltt. on appeal from iiiterinc- diate appellate court.— The affirmance of a judgment for the plaintiff by the Illinois appellate court, in an action for negligence, must be taken as settling all questions of fact necessary to a recovery, in favor of the plaintitl below, and as holdin^r the evidence sufficient to sustain tlie finding of the jury under the issues made by the pleadings. Lake Shore &* M. S. R. Co. v. Brmvn, 31 Am. 6- Eng. R. Cas. 61 , 123 ///. 162, 14 A'. E. Rep. 197. Indianapolis &* S/. L. R. Co. v. Mor- genstern, 12 Am. 6^ Eng. R. Cas. 228, 106 ///. 216. Lake Erie &' IV. R. Co. v. ZoJ^n- ger, 15 Am. &• Eng.R. Cas. 371, 107 ///. 199. Chicago, R. I. &- P. R. Co. v. Lewis, 19 Am. &• Eng. R. Cas. 224, 109 ///. 120; affirming 13 ///. App. 166. Pennsylvania Co. v. Ellett, 42 Am. &• Eng. R. Cas. 64, 132 ///. 654, 24 A^. E. Rep. 559. Where the liability of a defendant com- pany depends upon the existence of negli- gence, a verdict for the plaintifT, supported by some evidence, and approved by the New York general term, cannot be reviewed by the court of appeals as being against the weight of evidence. Downs v. New York C. R. Co., 56 A^. Y. 664 ; affirmitig i T. . 39y. ■/. Z. St. w. '. c. '35- |V. A. deuce to su|)port a vcrdirt, or wlu;ii llu- verdict is pal|>ably ugainst the wcij^lit of evi- dence, that the appellate court lan disturb the findings u( the jury. Jcvas &*X. O.K. Co, V. Ludtkc, 3 Tex. Civ. App. 308, 23 S, ir. Kep. 82. Chuaf,'o, M. 6- SI. P. R. Co. V. Krueger, 23 III. App. 639; ajfu med in part 1 24 ///. 457. Where suit is brought to recover for per- sonal injuries alleged to have been caused by negligence, and the evidence of plaintiff, if believed, is sufficient to make out a case, and the evidence of the defendant is suffi- cient to relieve it from liability, if believed, it is proper to submit the case to the jury, and a court will presume that the jury dis- believed the evidence of one party and be- lieved the evidence of the one for whom the verdict is, and will not disturb the ver- dict on that account. Styler v. Long Island a: Co.. 75 //nn {N. V.) 547, 27 N. V. Supp. II 13. (2) Illustrations. — The decision of the trial court upon a motion for a new trial for alleged misconduct of jurors, made upon conflicting affidavits, will not be reversed unless clearly erroneous. Tierney v. Min- neapolis &* St. L. R. Co. , 2 1 Am. &* Eng. R. i-'<'s. 545. 33 ^^finn. 3". 53 Am. Rep. 35, 23 N. W. Rep. 229. The evidence being in conflict upcm a question as to whether or not a car would or could, when " kicked " by a locomotive, spring or jump forward, a judgment ren- dered upon the verdict of the jury will not be disturbed unless the appellate court knows judicially that the verdict stated that which was physically an impossibility. Chi- cago, St. L. &* P. R. Co. v. C/iampion, (Ind.) 32 A'. £. Rep. 874. A conductor sued his company for a bal- ance of salary, and the company set up the defense that he was not to receive his pay until he had accounted for all fares col- lected, which he had failed to do. There was the evidence of private detectives that he had received two fares for which he had not accounted, but which was denied by plaintiff. Held, that a verdict for plaintifl[ would not be disturbed where it also ap- peared that his salary had been paid, and that he had not been discharged, for two months after the company had knowledge of the facts as testified to by the detectives. Rand V. Rome, IV. Eng. R. Cas. 350, 33 A'an. 422, 6 Pac. Rep. 566. A passenger sued to recover damages re- ceived while alighting from a train. The evidence showed that he was young and active, and unencumbered with baggage, and that the train stopped long enougli to allow him to alight with safety. There was some evidence tending to show that the station and platform were not sufliclently lighted, but it was not shown that this contributed directly to the injury. Held, that a veraict finding the railroad company negligent as to lighting its station, and that this caused the injury, would not be disturbed on appeal where the case was submitted on proper in- structions. St. Louis, I. M. (S~» S. R. Co. v. White, 30 Am. &* Eng. R. Cas. 545, 48 Ark. 495, 4 S. VV. Rep. 52. (4) injuries to persons at crossings. — Where a company is sued for causing an injury at a crossing, and there is a conflict of evidence as to the negligence of those in charge of the train, a verdict finding the company negligent will not be disturbed on appeal. Purinton v. Maine C. R. Co., 78 Me. 569, 7 Atl. Rep. 707. Where a company is sued for an injury at a crossing alleged to have been caused by the 4128 APPKAL AND liKKOR, 117. defective condition uf the planking ut the crossing, and there is a conHict of (.'vidcnce as to whether the plani H. A'. R. Co., 38 A'. Y. S. A". 790, 60 //«« 581, 14 A'. Y. Siipp. 801. Where the issue is made as to the time thiit stock were killed, and a witness for pi.iintilT swears that it occurred at 6 a.m., anrl the engineer swears that it occurred at iialf-past 12 P.M., the case may be sub- mitted to the jury to determine the lime of killing, and in such case their finding will not be disturbed on appeal. Texas &* N. O. A'. Co. V. Ludtke, 3 Tex. Civ. App. 308, 23 .s. W. Rep. 82. If all the evidence can be harmonized by the exercise of reason and in accord with the probabilities arising from the nature of the case, it is not what the law regards as a conflict of evidence; and where, when so considered, the testimony. showed without conflict that the stock in question were in- jured upon the highway crossing, the ver- dict for damages was not sustained by the evidence, and should have been set aside. Sullivan v. Wabash St. L. &* P. R. Co., 58 Iowa 602, 1 2 A^. W. Rep. 620. Where suit was brought against a railroad company for negligently killing a cow of the plaintiff, and the evidence was conflict- ing as to the distance at which the cow could have been seen by the agents of the defendant, and the court below refused to disturb the verdict of the jury in favor of the plaintiff, this court will not control his discretion thus legally exercised. Georgia R. Co. v. Sigman, 77 Ga. 71. Where suit is brought to recover for cattle killed at or near a highway crossing, the appellate court will not interfere with a ver- dict found on conflicting evidence as to whether the cattle were on the crossing or not. Chicago whether the horse did go upon the track through the opening was submitted to the jury, who found that he did. Held, that as the question was fairly submitted on conflicting evidence, a verdict for plain- tiff should not be disturbed. Hungerford V. Syracuse, B. Sf N. Y. R. Co., 19 ^V. Y. S. R. 47, 50 Hun 602. 4 N. Y. Supp. 643. 118. Weight of cvidciiev.— The su- preme court will not disturb a verdict on the mere weight of the evidence. Ft. Wayne, J. &* S. R. Co. v. Husselinan, 65 Ind. 73.— CRirrcisiNG Toledo & W. R. Co. v. Goddard, 25 Ind. \^.—Evansville &■• C. R. Co. V. Smith, 65 Ind. 92. Lake Erie &• W. R. Co. V. Mattix, 4 Ind. App. 176. 30 A^. E. Rep. 81 1. The special findings of a jury, like a gen- eral verdict, cannot be disturbed upon the ground that they are against the weight of the evidence, unless they are flagrantly so. Louisville St. L. R. Co., 7 Am. 6- Eng. R. Cas. 589, 29 Minn. 170, 12 A^. W. Rep. 461. Van Gent v. Chicago, M. Or* St. P. R. Co., 80 lo^va 526, 45 N. W. Rep. 913. Where the questions of negligence and contributory negligence have both been sub- mitted to and passed upon by the jury, the court will not reverse the judgment on the ! !; ;■: 430 APPEAL AND ERROR, 119. '1 . , weight of the evidence. Pittsburgh, C. &• St. L. A\ Co. V. Martin, 8 Am. : ., r, 28 Kan. 200. 110. Prepoiiileraiice of evidence. — Though the preponderance of evidence seems to be against the verdict, if there is enough to support it the refusal to grant a second new trial is not an abuse of discre- tion. City &> S. R. Co. V. Waldhaur, 84 Ga. 706, II S.E. Rep. 452. Kansas City, Ft, S. &* M. R. Co. V. Grimes, 50 Kan. 655, 32 Pac. Rep. 376. Louisville &* N. R. Co. v. Adams, (A^.) 10 5. W. Rep. 425. Where in an action for injuries alleged to have been occasioned by negligence tiie jury have by their verdict found that there was such negligence, and also that the plain- tiff was free from contributory negligence, the court cannot set the verdict aside upon the mere preponderance of the testimony. Evansville, R. &* E. R. Co. v. Harrington, 8 Am. &* Eng. R. Cas. 395, 82 fnd. 534. Where the verdict of a jury is not sus- tained by sufficient evidence to make out a primafacie case in favor of such verdict, the judgment founded thereon should in all cases be reversed. But where the verr'ict is APPEAL AND ERROR, 120,121. 431 sustained by evidence sufficient lo malce out a prima-facie case, and all the evidence against the verdict is merely in parol, the judgment founded upon such verdict should not be reversed unless some ground for re- versal is found other than merely that the preponderance of the evidence is against the verdict. Kansas Pac. R. Co. \. Brady, 17 Kan. 380.— Quoting Atchison, T. & S. F. R. Co. 2/. Stanford, 12 Kan. 369. — Quoted IN Kansas City, Ft. S. & G. R. Co. v. Fos- ter, 39 Kan. 329. It is the province of the jury to pass upon the credibility of the witnesses and upon the consideration and weight which shall be given to the testimony, and when they have passed upon it and the trial court refuses to grant a new trial, upon the ground that the verdict is against the clear preponderance of the evidence, this court will not reverse the judgment on that ground when there is any evidence to support it. Pool v. Chicago, M. &• St. P. R. Co., 8 Am. &> Eiig. R. Cas. 360, 56 Wis. 227, 14 ^V, IV. Rep. 46. A preponderance of the evidence must be manifestly and palpably in favor of the ver- dict to justify an appellate court in revers- ing an order of the trial court setting it aside. Ayers v. Minneapolis, St. P. &* S. St. M. R. Co., 46 Minn. 134, 48 N. W. Rep. 683. Plaintiff sued for the value of a mare which was found lying about six feet from a cattle-guard on defendant's road so seriously injured that she died the next day. The jury found that she was struck by a train or frightened by an engine so that she ran into the cattle-guard, and so was injured. The evidence to sustain such finding was all cir- cumstantial, while defendant's employes tes- tified that no such accident occurred. Held, that while the preponderance of the evi- dence seemed to be against the finding of the jury, yet the court cannot say that the jurv were not warranted in so finding, nor that the trial judge erred in overruling a motion for a new trial, since they saw and heard the witnesses, and were better able to judge of the weight that should be given to their testimony. Cox v. Burlington &* IV. R. Co., 77 /owa 478, 42 N. IV. Rep. 429. 120. Credibility of witueHses.— Where a railroad company is sued for kill- ing stock, and live witnesses testify as to the condition of the animals when found, tending to show that they were killed by a train, a verdict for plaintiff will not be dis- turbed on appeal because the fireman and engineer testify positively that they were not so killed. Rosecrans v. Wabash, St. L. (S- P. R. Co., 83 Mo. 678. Plaintiff sued for personal injuries re- ceived by being struck by a moving train when about to cross a track on a street. He and several other witnesses testified that no bell was rung nor signal given, but that the train approached silently at a point where the view was obstructed ; while several wit- nesses for tiie defendant testified posiiively to the ringing of the bell, the witnesses for the defendant ha' ' \^ a preponderance in numbers. Held, i it it was a question for the jury as to the belief of the witnesses, and for them to consider all the surround- ing circumstances, and their verdict will not be disturbed by the general term. Ander- son V. New York, L. E. Sf IV. R. Co., 2 Silv. Sup. Ct. (iV. V.) 9. 121. InsuiUcieucy of evidence.— (i) General rules. — The claim that if the evidence "tends to support" the verdict the court could not reverse the judgment of the evidence is not strictly correct. The true rule is that if the verdict was not sup- ported by sufficient evidence it may be re- versed, although the evidence " tends to support " the verdict. The court cannot weigh conflicting evidence, but may decide the question of the sufficiency of evidence. Cleveland. C, C. &• I. R. Co. v. Wynant, {Ind.) 55 Am. &* Eng. R. Cas. 80, 34 N. E. Rep, 569. A verdict will only be set aside on appeal for insufficiency of evidence when the court can say that the evidence did not tend to support the verdict. Moore v. Missouri Pac. R. Co., 7 Am. &» Eng. R. Cas. 568, 73 Mo. 438.— Followed in Williams v. Missouri Pac. R. Co., 74 Mo. 453; Terry v. Missouri Pac. R. Co., 77 Mo. 254. An appellate court will not disturb a ver- dict on the ground of insufficient evidence where the testimony was conflicting and the greater number of witnesses testified in accordance with the verdict. Hughes v. Chicago, St. P. &* K. C. R. Co., {Iowa) 55 A'. W. Rep. 470. Where the question of negligence is one of fact, the supreme court will, so far as the demurre' to the evidence is concerned, only look to see if there is sufficient evidence to support the verdict. Winters v. Kansas City Cable R. Co., 40 Am. &* Eng. R. Cas, 261, 99 Mo. 509, 12 5. W. Rep.^%2, 6 L. R. A. 536. WM t 43'^ APPEAL AND ERROR, 121. A judgir.ent in an action to recover for an injury resulting from negligence will not be reversed on the ground of variance in the allegation of the negligence, and the proof or failure of the evidence to sustain the allegation, if there is evidence tending to prove such allegation. Laie i>/tore &* Af. S. K. Co. V. Hmidt, 140 ///. 525, 30 A^. E. Rep. 458; affirming 41 ///. App. 220. Where a railroad company is sued for per- sonal injuries caused by negligence, and there is evidence by plaintiff tending to prove all the elements of such a cause of action, a verdict for plaintiff will not be dis- turbed. Chicago, M. &* St, P. /i. Co. v. yaiido, 26 ///. App, 601. See also to same effect Savannah, D. &" IV. S, L. R. Co. v, Schieffdin, So Ga. 576, 5 S. E. Rep. 781. Central R. &* B. Co. v. Dodd, 83 Ga. 507, 10 S. E. Rep. 206. Louisville, N. A. &* C. R. Co. V. Diamond State I. Co., 25 ///. App. 536. Fogerty v. Minneapolis &» St. L, R. Co., 30 Minn. 185. 14 N. IV. Rep, 878. Where plaintiff makes out a prima-facie case under the statute, in an action for kill- ing stock, the appellate court will not dis- turb a verdict in favor of plaintiff. Ohio &» M. R. Co. V. O'Domull, 26 ///. App. 348. In an action for killing stock, where the evidence is unsatisfactory and conflicting, the appellate court will not disturb a verdict for that cause alone. Peoria, D. &* E, R. Co. V. Powell, 32 ///. App. 53. (2) Illustrations.—^hcYt a company is sued to recover for the value of cross-ties taken from land, proof showing that the company took 274 ties is insufficient to sup- port a verdict for the value of 1000 ties. Jacksonville, T, &* K, W, R. Co. v. Roberts, 22 Fla, 324. Where on the trial of an action for a per- sonal injury on the ground of negligence in operating the road, it is practically conceded by both parties that the defendant was in the possession of the road and operating it, and that the men in charge of the road and its machinery were servants of the defend- ant, the objection that such facts are not proven will be devoid of merit. Lake Erie, &* IV, R. Co. v. Wills, 140 ///. 614, 31 N. E. Rep, 122; affirming 39 ///. App. 649. Suit was brought to recover the value of a mare alleged to have been killed by defend- ant's train, and the proof showed that she was found in a cattle-guard so injured that she afterwards died ; but the evidence failed to show that she was thrown or driven into the cattle-guard or injured by a train, but rather compelled a contradictory inference. Held, that a verdict for plaintiff should have been set aside as without evidence to sup- port it. Brockert v. Central Iowa R. Co., 75 Iowa 529, 39 N. W. Rep. 871.— Distin- guished IN Van Slyke v. Chicago, St. P. & K. C. R. Co., 80 Iowa 620. A bill of exceptions allowed to the ruling of a judge that three defendant railroads, which were sued jointly for the loss of goods, were liable, if either was liable, omitted to state the facts on which the ruling was based. It appeared that the three roads formed a continuous line ; that the goods lost were delivered to one of the companies without any written contract, and were lost while in the hands of another of the companies ; and no agreement was shown between the com- panies for the through transportation of goods. There was conflicting evidence as to the terms of the plaintiff's contract for the transportation of his goods and as to the arrangement between the three com- panies. Held, that the exceptions must be sustained. Pratt v. Ogdensbutg &* L. C. R. Co., 102 Mass. 557. In an action for personal injuries plaintiff offered no evidence except his own, which was quite contradictory, and which was con- tradicted also by credible witnesses for de- fendant. There was also evidence tending to prove that his memory was affected by the injuries. Held, that the evidence was too unreliable to sustain a verdict in his favor. Kenney v. Ocean Steamship Co., 1 1 A'. Y. Supp, 412. In an action for damages to stock at a public crossing, by reason of the failure to sound the whistle eighty rods from the crossing, and the further reason that the speed of the train was not slackened, where there is some evidence to show that the sig- nal was not given and that the train did not slow up, and that the injury might have been prevented if the signal for the crossing had been given or the train slackened, the verdict, otherwise supported by evidence, will not be disturbed. Southern Kansas R. Co. v. Schmidt, 45 Am. &» Eng. R, Cas. 489, 44 Aaw. 374, 24 Pac. Rep. 496. Plaintiff commenced an action before a justice of the peace to recover for a colt killed by the defendant railroad company, and obtained a judgment, which was re- versed in the county court. There was no evidence that any engine or cars had passed lli APPEAL AND ERROR, 122, 123. 433 over the road during the time after the colt was last seen alive and before it was found dead, or that the company had any notice that its fence, over which the colt v,ent onto the track, was defective. Held, that for these reasons there was a doubt as to whether plaintiff had introduced proof enough to entitle him to recover, but the judgment should only be reversed and so modified as to allow a new trial before the justice. Hathaway v. Fitchburg R. Co., 49 N. V. S. R. 466, 66 Hun 628, 20 N. Y. Supp. 917. 122. Entire absence of evidence. — Where the question is one purely of fact, yet if there is a total failure of proof to sus- tain the verdict of the jury, the supreme court will set aside the judgment and re- mand the cause for a new trial. Atchison, T. 6- 5. F. R. Co. v. Seeley, 24 Kan. ?6s.— Distinguished in Union Pac. R. Co. v. Harris, ii Am. & Eng. R. Cas. 431, 28 Kan. 206.— Indianapolis Eng. R. Cas.iS2, 78 Mich. 513, 7 Z. /?. A. 500, 44 N. W. Rep. 502. Where a verdict is the evident result of prejudice, partiality, or mistake, and not of that calm and considerate weighing of the facts in evidence which should always char- acterize the deliberations of a jury, the ap- pellate court will not hesitate to interfere. Duggan V. Wabash W. R. Co., 46 Mo. App. 266. — Following Spohn v. Missouri Pac. R. Co., 87 Mo. 74 ; Jackson v. St. Louis, I. M. & S. R. Co., 29 Mo. App. 500. — McKinley V. Chicago &* N. IV. R. Co., 44 Iowa 314. While courts may review the finding of juries in actions for personal injuries, still, when only the amount of the verdict is ob- jected to, they interfere with much caution and hesitation, and only reverse where the verdict is plainly and palpably excessive. Dalzell V. Long Island R. Co., i Silv. Sup. a. {N. Y.) 582, Where the verdict of a jury is excessive it is the duty of the nisiprius court to set it aside ; but its refusal to do so cannot be re- viewed by this court. Nelson v. Oregon R. 6- A'; Co., 13 Or^. 141, 9 Pac. Rep. 321. Where a verdict is for a gross sum, an objection that it included interest will not be APPEAL AND ERROR, 126. 435 reviewed on appeal. Wilson v. Atlanta &* C. A. L. R. Co., i6 So. Car. 587. The supreme court of South Carolina cannot review a judgment on the ground that the damages awarded are excessive. Bowen v. Atlantic &* F. B. V. R. Co., 14 Am. &• Eng. R. Cas. 332, 17 So. Car. 574.— Ap- plying Brickman v. South Carolina R. Co., 8 So. Car. 173; Steele v. Charlotte, C. 4 A. R. Co., 1 1 So. Car. 589. An appellate court can grant relief on the ground that a verdict in a suit for per- sonal injuries inflicted by the negligence of another is excessive, only when the amount is so disproportionate to the injuries inflicted as to evidence a wrong motive on the part of the jury. Gulf, C. &• S. F. R. Co. v. Greenlee, 23 Am. &* Eng. R. Cas. 322,62 Tex. 344- Where a party sues a railroad company for putting him off the cars with force, at a place not authorized by law, and he recov- ers damages grossly in excess of the injuries received, the verdict of the jury should be set aside by the court trying the cause, and, failing to do so, the judgment will be re- versed that a new trial may be had. Chicago a^ N. W. R. Co. v. Peacock, 48 ///. 253. Where a company is sued for a horse fatally injured while in the hands of a com- mon carrier, a verdict for a much larger sum than is warranted by the evidence will be set aside on appeal, though the evidence as to the value of the horse is conflicting. Harris V. Panama R. Co., 5 Bosw. (N. V.) 312. Where the value of stock killed by a rail- road is laid, under a ^'idelicit, at $200, and there is also an averment that each is of the value of $19.50, and the verdict is for a sum less than $200 but more than the separate values arfded—Z/ij/rf, that the verdict might be sustained by treating the averment of separate values as surplusage. Ohio &* At. R. Co. V. Clutter, 82 III. 123. On a creditor's bill against a railroad com- pany some of the debts proved are under $500, but there is one for$i 11 7.60 proved be- fore ♦he commissioner, and the decree of the circuiv court is in favor of all the creditors a^rainst the company. An appeal by the company brings up all of them, and the ap- pellate court will pass upon all. Winchester «S- S. R. Co. V. Col/elt, 27 Gratt. ( Fa.) 777, 17 Am. Ry. Rep. 121. 135. When the verdict will not be disturbed.*— (1) Ingeneral. — The court of * When appellate court will not disturb ver- appeals has no jurisdiction to reverse a judgment in an action for negligence be- cause of excessive damages. Gale v. New York C. Eng.R. Cas. 108, 116 Mo. 450, 21 S. IV. Rep. 1094.— Quoting Griffith v. Mis- souri Pac. R. Co., 98 Mo. 168. (3) Eminent domain cases. — Where a jury a S. R. Co. V. Hall, 42 Am. 6- Eng. R. Cas, 208, 53 Ark. 7,\iS. W. Rep. 138.— Ap- proving Blunt V. Little, 3 Mason (U. S.) ; 438 APPEAL AND ERROR, I27-12U. (?7. I02. Limiting Little Rock & Ft. S. R. Co. V. Barker, 39 Ark. 491. Where it appeared that plaintiff was left after an accident fully able to earn a liveli- hood, only needing proper treatment to effect a complete cure, and that the acci- dent resulted in nothing more serious than inflammation of the hip, which caused great pain, some loss of time, and considerable expense for medical attendance, a verdict for $25,000 was held excessive, and ordered to be reduced to $500. Peyton v. Texas &* P. J{. Co., 41 Am. &* Eng. R. Cas. 550, 41 La. Ann. 861, 6 5o. Rep. 690. A verdict of f 10,000 in favor of a married woman, 43 years old, for injuries which caused nervous prostration and other pain and inconvenience, but which did not pre- vent her from walking about, held to be ex- cessive and ground for a new trial, unless she stipulated to accept I4000. Lockwood V. Twenty-third St. R. Co., 15 Daly (N. V.) 374 ,7N.V. Supp. 663 ; 28 A^. Y. S. R. 16. Plaintiff was at the time of the accident thirty-six years of age, with an earning capacity of eight dollars a week. The jury gave him a verdict of $20,000. Held, exces- sive, and reduced to $15,000. Pfeffer v. Buffalo R. Co., 4 Misc. {N. K.) 465. A judgment for $10,000 for the loss of a hand to a man who was earning $75 per month and who had fully recovered, except the loss of the hand, held to be excessive, but affirmed upon remission of all above $4000. Brown v. Southern Pac. R. Co., 7 Utah 288, 26 Pac. Rep. 579. 127. Setting atiide verdict for in- adequate damages.— If the owner of stock killed is entitled to recover at all, he is entitled to the full value of the stock, and a judgment for one-fourth of the value, as proved, will be set aside as inconsistent. Smedley v. Chicago .r.) 6 S. W. Rep. 618. 128. Increaslngr inadequate dnni- asres.— Damages allowed by a jury will not be increased on appeal unless manifestly inadequate. Moses v. Louis7 psBnoiiHO ah appeal. 120. In ereneral.— When a statute gives a court jurisdiction to try an action upon appeal, the court does not obtain jurisdic- tion of the subject-matter of the action unless the appeal be taken in a proper case and in the manner prescribed by law. Spaulding v. Milwaukee, L. S. &* W. R. Co., lo Am. &* Eng. R. Cas. 509, 57 IVis. 304. Where the president of :i railroad com- pany was informed that a suit was about to be brought against his company, before a APPEAL AND ERROR, I.JO, 131. 439 justice of tlic peace, and, believing that a ii'coveiy in such suit would be unjust, gave i istructions to tlie most convenient station ii;;ent to attend the trial, and, in case of a rtcuvery against the company, to appeal to cnuri, and such agent was a diligent and faithful officer, but from ignorance of the law failed to procure security for the appeal— AM, that there was no such luclies on the part of the president as de- prived the company of a right to a recar- 'hxri. North Carolina R. Co, v. Vinson, 8 Jones (N. C.) 119. 130. Time of taking.— In proceed- ings to acquire title to land under Code Iowa, § 1254, the time for taking an appeal from the assessment of commissioners be- gins to run from the time the assessment is actually made and reduced to writing and made public, or in some legitimate manner brought to the notice of the parties inter- ested. Jamison v. Burlington &* W. R, Co., 27 Am. St* Eng. R. Cas. 413, 69 Iowa 670, 29 N. IV. Rep. 774. Where a party entitled to an appeal in eminent domain proceedings uses diligence in endeavoring to perfect the same, ihe law will not permit him to be deprived of it through the neglect of the officer whose duty it was to prepare the transcript. Re- publican Valley R. Co. v. McPherson, 1 2 Neb. 480, 11 N. W. Rep. 739.— Distinguished IN Clinton v. Missouri Pac. R. Co.. 122 U. S. 469. Reviewed in Giflordz/. Republican V. & K. R. Co.. 20 Neb. 538. A suit is suspended during the period between the death of a party and the order granting a continuance, and this period is not to be deemed any part of the time lim- iti'fi for taking an appeal. Mcliridc v. .\orlhern Pac. R. Co., 42 AiU. Sf Eni;;. R. Cas. 146, 19 Or eg. 64, 23 Pac. Rep. 814. Where the depositions taken in support of a rule show that the justice of the peace has no jurisdiction of an action of trespass to recover for injuries to a car, and that the defendant was misled by the justice's statement, the district court will grant relief by allowing an appeal nunc pro tunc. Hestonville Pass. R. Co. v. BoyU, i Pa. Dist, 230. A decree in a quo warranto proceeding to enforce a forfeiture against a railroad company will not be reviewed on appeal unless it be prosecuted at the term of the court in session, or, if not in session, at the first term to be held after judgment has been rendered In u district court, as provided by statute. International &» G. N. R. Co. v. State, 41 Am. 6- Eng. R. Cas. 6ii, 75 Tex, 356, 7 R.R.&* Corp. L.J. 305, 12 .V. W.Rep, 685. Where an appeal is a matter of right, the efflux of the time within which it may be taken is stopped by the filing of the appeal bond ; but where the appeal depends upon discretion or allowance, the time of limita- tion runs until the application or petition for appeal is presented. Womtr v. Ravens- wood, S. 6- G, R. Co., 37 W. Va. 287, 16 S. E, Rep. 488.— Quoting and following Long V. Ohio River R. Co., 35 W, Va. 333. 131. Notice of aiipetil.— The filing of proof of a legally effectual service of the notice of appeal is jurisdictional, and a failure to comply with the statute cannot be cured by amendment after the time to appeal has expired. Stolt v. Chicago, M. &* St. P. R. Co., 49 Minn. 353, 51 A'. W^. Rep, H03. Under N. Y. Code Civ. Proc. § 3046, au- thorizing '.lie appellate court to allow an amendment upon such terms as justice re- quires, where the appellant has omitted to do any act necessary to perfect the appeal, the omission to subscribe a notice of appeal ii;ay be cured by amendment. Gutbrecht v. Prospect Park &* C, I. R. Co., 28 Hun (N. y.) 497- Notice of an appeal was required to be served on a railroad company, and also upon the clerk of the court, but in taking an appeal the citation was served upon the company, and afterward filed with the clerk, and its contents were made known to him. Z/eM, that such service upon the clerk, though informal, was not ground for dis- missing the appciil. Black v. Chicago Sf N. W. R. Co., 18 Wis. 208. By an obligation payable to a certain per- son or bearer, the maker, in consideration of one dollar, the receipt of which was there- in confessed, and of the delivery to be made to him by a certain railroad company of a specified number of shares of its capital stock, acknowledged himself to be indebted in a certain sum, which he promised to pay in instalments as the construction of the roadbed progressed, in proportion to month- ly estimates thereof, and that the whole should be paid on the completion of such roadbed. Held, that such company having been made a party defendant, but no judgment having been rendered against it !''■' 440 AI'PliAL aNU 1:RK()K, lilii, 13;i. «b ,*» Mi'-'.' i3 f below, it need nut be made a party tu nor served witli nutice uf an appeal ; and that a failure tu give nutice to the cunipany uf such an appeal is gruund for setting aside a submission of the cause on default, but nut for a dismissal uf the appeal. c/'. d* Q. R. Co., 27 Neb. 699, 43 N. IV. Rep. 423. In a suit by bondholders to foreclose a mortgage to secure the bonds, wherein the railroad company and the mortgage trustees are defendants, the company is the only real defendant, and may appeal alone. Nor- wich 6- W. R. Co. V. Johnson, 15 Wall. {U. S.)i. A judgment was obtained against the "Southern Pacific Railroad Company" in a suit filed Sept. 6, 1871. On July 10, 1873, a writ uf errur was directed to the "Texas & Pacific Railway Company." Held, that the acts of May 24, 1871, and May 2. 1873, clearly show a consolidation of the first- mentioned company under the name of the latter, and that therefore the writ was prop- erly directed. Stephenson v. Texas &* P. R. Co., 42 Tex. 162.— Approved in Acres v. Moyne, 59 Tex. 623. Followed in Texas & P. R. Co. V. Murphy, 46 Tex. 356. The Connecticut act of 1889 relating to grade crossings (Sess. Laws 1889, ch. 220) provides in effect that the directors of every company which operates a railroad in that state shall apply for the removal of at least one grade crossing each year for every sixty miles of road; * * '* and that if the directors of any company fail so to do the commissioners shall order such crossing or crossings removed, etc. Held, that the railroad commissioners were proper parties defendant to an appeal taken from an order made by them under the statute. New York &> N. E. R. Co.'s Appeal, 55 Am, &* Eng. R. Cas. 88, 62 Conn. 527, 26 All. Rep. 122. Where a suit was instituted against a railway company and was prosecuted to a judgment in the lower court, and the rights and franchises of that company were trans- ferred to another company thereafter, such latter company cannot be made a party to the appeal by muiion in the supreme court. If it is the successor uf the defeiiUant com- pany it must have an uppurtuniiy tu con- test the pretension that it inherits the liabiiiiics uf that company, and the appel- late cuuri cannot assume as undisputed fact that it represents its predecessor in sutli sense as to be liable fur thai predecessor's obligations. Ranger v. A'tii' Orleans,/. &• G. N. R. Co., Mann. (La.) 176. W. filed his declaration in the county court, alleging that E., as superintendent and general manager of the Macuii & Brunswick Railroad, and the Macon & Brunswick Railroad had damaged him the sum of eighty dollars, by reasun uf une of the railroad trains running over certain cows. The declaration closed with a prayer for process against E., as superintendent, and the railroad company. Service was perfected on the company, but nut un K. Judgment was rendered fur the plaintitT, and the cumpany appealed. Held, that the company was a party to the suit and had a right to appeal whether the other party did so or not, and that a dismissal of such appeal, on motion, fur want of proper parties thereto, was errcjr. Macon &* B. R. Co. v. Washington, 69 Ga. 764. 133. Security. — An instrument in- tended as an appeal bund, and piuportiii); in the body thereof to bind a railroad com- pany, but which is signed by a certain person as agent of the company, followed by a scrawl for a seal, is not a valid bond of the company. Savannah, F. &* W. R. Co. V. Clark, 23 Fla. 308, 2 So. Rep. 667. Where an appeal bond of a railway com- pany is sued on, and there is no plea under oath denying that it is such bond as it pur- ports on its face to be, and it is signed by the president and secretary, with the cor- porate seal atuched, no other proof of its being the bond of the company is necessary. Keithsburg &* E. R. Co. v. Henry, ^Jll. 255. Where an appeal bond executed in the name of a railroad company has the seal of the corporation attached, the presumption is that the person using the seal had author- ity to do so. Indianapolis &* St. L. R. Co. v. Morganstern, 9 Am. &* Eng. R. Cas. 469, ir; ///. 149. Perfecting an appeal from a decree de- claring the charter of a railroad company forfeited, by giving an appeal bond, sus- pends the decree of forfeiture and enables AIMM: AL AND KRROR, i:»4, l;irt. 44t the company to execute ap|)cal or writ of error bonds to have other judgments against it reviewed; and the validity of such blinds will not be nfTected by a subsequent atrirmance of the decree of forfeiture. Tfxas Trunk A\ Co. v. Jackson, 85 Tex, 605, 22 S. ir. Hfp. 1030. The decree ordered payment of a sum 0/ money by a raril way company, and in default that a receiver should be appointed; from it the company gave notice of appeal, and moved to stay the appointment of the receiver and the enforcement of the debt until after judgment on appeal. The court refused the application unless security were given for payment of the debt in case the decree should be affirmed ; and in any event ordered defendants to pay the cost of the motion.- Fox v. Toronto &* N. R. Co., 26 Grant Ch. (Ont.) 352. On an appeal by a railroad company from a judgment rendered by a justice of the peace, to the circuit court, the appeal bond was executed by the company's attorneys only, notwithstanding a rule of the latter court prohibiting attorneys " from being received as security in such cases." Held, on motion to dismiss the appeal, that such attorneys, though probably liable for con- tempt of such rule, are liable on the bond, and that the bond is sufficient. Ohio &* M, R. Co. v. Hardy. 64 Ind. 454. See.also Ohio (S- M. R. Co. V. Hay, 64 Ind. 597. Where a judgment is rendered in favor of A. against C., before a justice of the peace, on a similar award of damages for a right of way made by a board of county commis- sioners, and C, for the purpose of perfect- ing an appeal to the district court, gives a bond running to B, an entire stranger to the record and proceedings, and no special equities are shown— ^^/. V. I'iatt, 51 Minn. 5f)«, 53 A'. \\\ A',/. «77. In an action for personal injuries at a crossing, an assignment of error tliat the court erred in refusing to give the jd, 4th. 5tii, and 6th charge is too general to he con- sidered, iiiilveilon, //. &* S. .1, A'. Co. v. .»/ prevent injustice. ISonntr v. Whilcomb, 80 Te.x. 178, 15 S. W. Ktp. 899. Amendments to the appellant's assign- ment of errors will be allowed in the su- preme court where the appellee will not be prejudiced thereby, nor the submission of the cause delayed. Hall v. Chicago, R. I. 6- P. K. Co., 84 /ffw,! 311. 51 A'. IV. Kep. 150.— Quoting Potter v. Chicago, R. I. & P. R. Co., 46 Iowa 399. By an obligati(jn payable to a certain per- son or bearer, the maker, in consideration of one dollar, the receipt of which was therein confessed, and of the delivery to be made to him by a certain railroad company of a specified number of shares of its capital stock, acknowledged himself to be indebted in a certain sum, which he promised to pay in instalments as the construction of roadbed progressed, in proportion to the monthly estimates thereof, and that the whole should be paid on the completion of such roadbed. Held, that, the company having been, by the assignment of errors, made an appellee instead of an appellant, such assignment is informal, but that a fail- ure to object thereto is a waiver of such informality. Clark v. Continental Imp. Co., 57 Ind. 135. 18 Am. Ry. Rep. 505. 130. Bill of ex(;cption8.— A question raised by appellant upon a demurrer to evi- dence, where the matters relating to it have not been preserved in a bill of exceptions, cannot be considered on appeaf. IVillisch v. Indianapolis cord ; and in order to have this court review the ruling of the court below in rejecting such ofTercd amendment, it should be set out in the bill of exceptions or annexed to the same as an exhibit properly authenticated. Harnett v. F.ast Tenn., V.&'G. R. Co., 87 Ga. 766. 13 .V. E. Rep. 904.— Following Sibley w. Mutual R. F. L. Assoc, 87 Ga. 738. Recitals in a bill of exceptions, to the effect that " the plaintiff introduced evi- dence tending to prove his claim for dam- ages," and that " the court found the issues for the plaintiff," are sufficient to show that the finding of the court as to the recovery 'vas based upon evidence in the cause. Boswell V. St. Louis, I. M. 5 -J*'- ^• Hep. 1099. In appeals to the supreme court of Texas, in the absence of a statement of facts that court will consider the trial judge's conclu- sions of facts as correctly drawn ; therefore, in an action against a railroad for personal injuries, in the absence of such statement of facts the conclusions of the judge that there was no negligence on the part of the plain- tiff contributing to her injuries must be deemed correct. Texas &> P. R. Co. v. Cole, (Tex.) I S. W. Rep. 631.— Dlstinguishing Texas & P. R. Co. v. Cole, (Tex.) i S. W. Rep. 629. 140. Filiii(( the record. — When a record is not filed in the appellate court within the first two days of the first term succeeding that at which the judgment was rendered, an appeal will be dismissed. Chi- cago. B. 6- Q. R. Co. v. Aurora, 5 ///. App. 395. speck V. Hickman, 5 III. App. 395. Where the record of appeal is not tiled within three judicial days after the return day, and no extension of time has been ob- tained, the appeal must be dismissed if re- quired by the appellee. A'i-ni> Orleans &» C. A'. Co. V. Hood, 3 l.a. Ann. 226. Sec also lialtinme i^ O. R. Co. v. Harris, 7 ff'd//. (d'. .V.) 574. — Foi.i.dWKK IN Chicago, R. I. & P. R. Co. V. (irinncll, 53 Iowa 55. The filing of a transcri, t in the district court within sixty days after the assessment of damages, in an eminent domain proceed- ing, as provided by Neb. Coinp. St. ch. 16, { 97, is essential to the validity of an appeal. Gifford v. Republican V. &* K. R. Co., 20 Aed. 538,31 A', ir. Ri-p. II.— Revikwino Republican Valley R, Co. t>. Linn, 15 Neb. 234 ; Nebraska R. Co. v. Van Dusen. 6 Neb. 160; Republican Valley R. Co. v. McPher- son, 12 Neb. 480. IV. PBOGEDURE IN AFPXLLATX OOUXT. 141. Ill gciierui. — A ruling made on the first appeal of a cause will be adhered to on all subsequent appeals of the same cause, whether wright or wrong. And so, the conclusion of this court, announced in the opinion on rehearing on a former ap- peal (see 62 Iowa 594), as to what constitutes a conflict of evidence as to negligence in an action against a railway company for dam- ages for a fire caused by a locomotive, is adhered to on this appeal without recon- sideration. Baicockv. Chicago^ N. W. R. Co., 72 Iowa 197, 28 A'. W. Rep. 644, 33 A'; W. Rep. 628.— Following Adams County V. Burlington ft M. R. R. Co.. 55 Iowa 94. Where, on a former appeal, the supreme court held that, according to the statutes of Missouri, which were introduced in evidence to support the answer of the railroad com- pany, the judgment of garnishment rendered in a justice's court in St. Louis was void, and constituted no defense to the cause of action set out in the complaint, such declara- tion continues to be the law of the case on a subsequent appeal to the appellate court. Terre Haute &* I. R. Co. v. Baker, 4 Ind. App. 66, 30 A^. E. Rep. 431. A company was enjoined from construct- ing its road across a tract of land until payment of the damages that had been awarded, and pending an appeal it paid the damages under protest and entered upon the land. Held, that the appellate court could not enter judgment for the amount so paid. 444 APPEAL AND ERROK, 142. or any part thereof, and tliat the fact of its being paid under protest would make no difference. Atlanta &* F. R. Co. v. Blan- ton, 80 Ga. 563, 6 S. K. Rep. 584. 142. Afllrmanee.— (I) Whm proper, generally. — Where a bond is sued on and the dii mages equal or exceed the penalty, it is usual to allow interest after the date of the breach , but where a bond is given to secure the building of a railroad, in a penalty equal to the value of certain lands con- veyed as a bonus to aid in tlie building of the road, and it appears that the lands were unproductive and the company derived no income therefrom, in an action upon the bond for a failure to build the road, the action of the court in refusing to find inter- est will not be disturbed on appeal. Blewett V. Front St. C. R. Co., 51 Fed. Rep. 625, 7 U. S. App. 285, 2 C. C. ^. 415 ; affirming 49 Fed. Rep. 126. The s lie question involved was the correct- ness of the trial court in directing a verdict on the ground that plaintitf was guilty of negligence ; and it appearing that the exer- cise of even slight care on the part of the plaintiff would have enabled him to avoid the accident, the judgment is affirmed. Gelh- hard v. Detroit, G. H. &- M. R. Co., 79 Mich, 586, 44 A^. W. Rep. 1045. Where the pleadings upon which the cause was tried do not appear in the tran- script of the record, all presumptions are in favor of the action of the trial court, and thn. judgment will be affirmed. Central Sav. Bank v. Bellefontaine R. Co., 2 Mo. App. 601, mem. Where a writ of mandamus, directed to a commissioner of public works in the city of New York, requiring him ;o issue a permit to the relator for the removal of a pave- ment, hnd been fully executed and the per- mit av;) Jed of by the relator, and thereafter the commissioner had gone out of office — held, on appeal to this court, that as there was no question of practical importance to be decided, the order granting the writ should be affirmed without considering the questir .< as to whether the relator was enti- tled to the writ. People v. Squire, no N. Y. 666, 2 Silv. App. 113, \Z N. E. Rep. 362, 18 A^ Y. S. R. 528; affirming 21 /. 6- S. 536. Where two corporations are sued jointly, and there is a separate verdict against each, and the court on appeal finds reversible error as to one but not as to the other, a judgment as to the one where there is no error will be affirmed on the plaintiff dis- missing the suit as to the other; otherwise the entire case will be reversed and re- manded. Western Union Til. Co. v. Phil- lips, 2 Te.x: Civ. App. 608, 21 S. W. Rep. 638. Where an appeal is taken from a judg- ment awarding damages for stock killed by a railroad company, and the error assigned is in allowing interest on the value of the animals, and the plaintiff files a remittitur of such interest, the judgment will be affirmed as thus corrected. Galveston, H. 6- S. A. R. Co. V. Carter, { Tex. App.) 18 S. IV. Rep. 196. Where an action by a passenger against a railroad company is appealed by the com- pany, and the error assigned consisted in the introduction of improper testimony, which could only affect the verdict by in- creasing the damages, a rehearing will be allowed on application accompanied by an offer to remit the excessive damages ; and the judgment, as thus reduced, will be affirmed. Galveston, H. &* S. A. R. Co. v. Wesch, {Tex. Civ. App.) 21 S. IV. Rep. 313; affirmed 21 .S. IV. Rep. 1014. Where, on appeal, in an action by a father to recover damages for an injury to his daughter, alleged to have been caused by defendant's negligence, the record shows that the verdict for the plaintiff is sustained by a preponderance of evidence, and that the instructions to the jury were sufficiently favorable to the defendant, the judgment will be affirmed. Larson v. LaJte Superior, T. 6- T. R. Co., 79 Wis. 201, 48 A^. W. Rep. 421. (2) Illustrations. • — Suit was brought against a company for negligently causing the death of a conductor. Two trials re- sulted in the same verdict. Held, in the appellate court, that a judgment based upon the second verdict should be affirmed, there being no substantial error in the record. Chicago, M. 6- St. P. R. Co. v. Snyder, 27 ///. App. 476. In an action by a female, who claimed to be a passenger, to recover for personal in- juries caused by iumpi'.igfrom acar to avoid a collision, it appeared that she had no pass, but had money to pay her fare ; but the con- ductor, without directly demanding a fare, was referred to her brother, who was a brake- man on the same train ; but plaintiff was not permitted to testify as to previous con- APPEAL AND ERROR, 143. 445 IS IKI iff dis- erwisc nd re- riiil- . Rep. versations with her brother on the subject, but did testify that she had no previous ar- rangement by whicii she was to travel on a pass, and had purchased no ticlcet. Held, that a verdict and judgment in favor of plaintiff, based upon the fact that she had no pass and was a regular passenger, should not be disturbed. Morris v. New York, O. d^W. R. Co.. 73 Hun (N. V.) 560, 26 A^, y. Supp. 342, 56 A^. Y. S. R.iy. Two actions were brought again;>t a rail- road company to recover for personal in- juries to a minor girl— one by the father, and the other by the girl herself. The action by the father was tried, resulting in a judgment in his favor, which was affirmed on appeal. When the second case came on for trial it was conceded that the plaintiff was entitled to recover unless the evidence varied mate- rially from that in the former action. At the trial of the second case, an engineer, who had testified at the former trial that he did not whistle until plaintiff was struck, was not produced as a witness, and two other witnesses, whose evidence had supported the engineer at the former trial, did not give similar testimony, but there was evidence on the part of the defendant that the whistle was blown much earlier. Plaintiff's testi- mony was the same as that given by her at the former trial, //e/d, that a judgment for plaintiflF should be affirmed. Swt// v. Staten Island R. T. R. Co., 44 A^. Y. S. R. 747, 63 ffun 628, 17 A^. Y. Supp. 654. 143. Reversal.— (i) When proper, gen- erally. — Where the jurisdiction of a federal court depends upon diverse citizenship under the statute, which is not suthcicntly shown by the record, the appellate court will reverse a judgment, though no exception to the jurisdiction was taken in the trial court; and no amendment will be allowed in the appellate court. St. Louis, I. M. &* S. R. Co. V. Newcom, 56 Fed. Rep. 951.— Quoting Mansfield, C. & L. M. R. Co. z/. Swan, in U. S. 379, 4 Sup. Ct. Rep. 510. Where two judgments in the same cause, awarding damages to the plaintiff, based upon the same evidence, have been reversed for want of evidence to sustain them, and a third judgment is obtained upon substan- tially the same evidence, such judgment will be reversed and the cause dismissed, since it is evident that the litigation can serve no legitimate end. St. Louis, /. M. &* S. R. Co. v. Aforgart. 56 Ark. 2 1 3, 19 i". \V. Rep. 75'- Where, under any view whicli can be taken of the testimony of the witnesses who saw the conduct of plaintiff's decedent, it appears that he was not in the exercise of that care and caution which it was his duty to observe in approaching and crossing a railroad trcick, a judgment for his administrator will be re- versed. Apsey V. Detroit, L. efendant hafi contracted to supply the '■'I APPEAL AND ERROR, 144. £ H. & L. H. R. Co. witli W(X)d. In 1858 de- fendant released the railway company from the contract, and the company covenanted to indemnify defendant against all contracts made by him with one M., among which was a contract to convey to M. two lots of land. In 1865 defendant wrote to the rail- way company stating that plaintiffs had claimed from him rent in arrear on thes.. two lots amounting to $2000, and offering, if the company would pay him that sum a'ld reconvey the leases, to assume them for the future. The company assented, paid him the $2000, transferred to him the leases which he had trans.'^rred to them, and took a receipt under seal froni defendant as in full of all claims for such leases, by which receipt defendant dischar^jed the company of all further liability in respect of such leases under the indenture of 1858. The company had previously paid the rent of both these lots, and defendant, after receiv- ing this money, paid the rent on one lot. The plaintiflfs having recovered from defen- dant as for money received to their use — keld, that the verdict was wrong, for though the settlement was made on the basis of the amount due to them on the leases, yet the money was paid to defendant, not as plaintiffs' money, but a^ the price of the company's discha.'ge, and there was no privity between the plaintiffs and defendant. Ciinatfa R. Co. V. McDomiU, 25 U. C. Q. ii. 384. 144. DiMiiiisHtil of appeal.— An ap- peal will be dismissed where the notice of appeal gives one date to the judgment appealed from and the undertaking another date, but the record only shows one of an earlier date than either, Atkinson v. Chicago &» N. W. R. Co., 69 Wis. 362, 34 N. IV. Rep. 63- Where, upon inspection of the record filed in the court of appeals in an action tried by a jury, it appears that the case presents no question of law that can be re- viewed, the appeal will be dismissed on motion. Dalzcll v. /.f«,c Island R. Co., 119 N. y. 626, 2 Silv. App. 531, 23 N. E. Rep. 487, 28 A^. 1'. S. R. 946; dismissing ap- peal from 53 Hun 633, 25 A^. Y. S. R. 166, i Silv. Sup. Ct. 582, 6 A'. Y. Supp. 167. An appeal will lie from a personal decree for the balance of a railroad mortgage debt after a sale of the mortgaged property, but a reversal of" the former decrees of fore- closure vacatrs such personal decree, in which case the appeal will be fli^niissed for want of a subject-ma' ter on which to oper- ate. Chicago, D. 6- V. R. Co. v. Fosdick, 12 Am. es alleged to have been sustained by the plain- tiff in consequence of the closing of the ditches on his plantation by the building of a railroad, and no evidence was given on the trial from which an estimation of the damages could be formed, and the jury found a verdict for the plaintiff, the court remanded the case for a new trial. Trudean \. New Orleans, J. ^ G. V. R. Co., 15 La. Ann. 717. Where a man suffered serious injury as a remote consequence of being carried by his railway station in tho night, tli » only dirrrt injury being that he was obliged to walk an extra hundred rods, he was still allowed a new trial on reversal of a verdict for the remote injury, as it could not be said that damages for the direct injury would not carry costs. Lewis v. Flint &* P. M. R. Co., 56 Mich. 638, 23 A^. IV. Rep. 469. In an action by an employe for personal injuries, two issues were made : (i) As to whether the machinery used was defective; (2) whether the defendant's superintendent was negligent. Held, that it was proper to instruct the jury as to the law relating to each issue, and that if there was evidence rela- ting to the defective machinery, and there was nothing to show on which is.^ue the verdict was found, an order granting a new trial for refusing to properh' instruct as to the defective machinery was proper. Brymer v. Southern Pac. R. Co . 90 Cal. 496, 27 Pac. Rep. 371- Three several actions were commenced before a justice of the peace against a rail- road company for killing stock, but only one citation was issued. The justice refused to consolidate the suits and proceeded to irial. If the three claims had been consolidated the amount would have exceeded the juris- diction of the justice ; but on appeal to the circuit court the cases were ordered consol- idated and judgment was rendered for the plaintiff. Held, that such judgment must be reversed and, so far as the first claim was involved, rennanded to the circuit court to be retried, and th^t the other two claims should be remanded to the justice to be pro- ceeded on as claim 5 where no summons had issued. Louisville &^ N. R. Co. v. McCollis- ter, 66 Miss. 106, 5 So. Rep. 695. 140. Slandnte, and ftirtlier pro- cecdiiif^s below.— (I) General rules.— In a suit for damages resulting from an ac- cident, a fact proved in the case, and bear- ing on a subsequent case growing out of the same cause, will be noticed in the subsequent case, in which the testimony is reticent on the point. Under such circumstances the second case will be remanded for testimony on the point, in furtherance of substantial justice. Paland v. Chicago, St. L. &> A'. O. R. Co., 42 La. Ann. 290, 7 So. Rep. 899. A case will not be remanded to a lower court wheie it is brongiii to compel a rail- road to transfer stock to a purchaser at an execution sale, in order that the conflicting claims of third parties may be adjudicated. Third parties will not be bound by the W>. ' "n'li 448 APPEAL AND ERROR, 146. K i $» .ih judgment and may assert their rights in separate actions. Morehead v. Westsrn N. C. A\ Co.. 96 JV. Car. 362, 2 S. E. Rep. 247. AVhere a decree of the lower court, in a railmaf*. foreclosure suit, was reversed on appeal and sent back with a mandate to the court below to niuke certain specified cor- rections, no new investigation is meant, and it is not error in the court below to refuse to reopen the case to hear new matter dis- covered since the f^rst trial. Kneelandv. American L. A- T. Co., 138 U.S. 509, 11 Sup. a. R^p. 426. Where a judgment of the United State; district court is reversed by the supreme court, and a mandate is sent down to enter judgment for the defendant, the lower court must obey the mandate. . ;".i- par!e Dubuque S. A'. Co., 76 J/tf. 324. Upon petition tiled in a suit, wherein a railway company had been put into a re- ceiver's hands, for damages for the negli- ^cnt killing of petitioner's horse, alleged to have been of the value of $50,000, a refer- ence had been made to ascertain the value of the horse. The commissioner, having taken evidence, reported the horse to have hee;^ worth $40,000; but the court recom- iiutle'. W. y.p. 381. Where an appeal is in the nature of a writ of error, and only carries up the case to the court of appeals as an appellate court for the correction of errors that may have inter- vened on the trial of the case below, and for its adjudicaticm upon the question whether the judgment appealed from should be affirmed, reversed, or modified, and the court has no other than appellate powers to affirm, reverse, or modify, then such ap- peal docs not vacate, but merely suspends, the operation of the judgment. So held. where a plaintiff who had sued for personal 1 D. R. D.— 29. injuries died pending an appeal from an order reversing a judgment. Lewis v. St. Louis . 651, 9 S. IV. Rep. 832.— Following 13akcr7'. Louisville & N. R. Co., 4 Bush. (Ky.) 619. Quoting Harkness v. Hyde, 98 U. S. 476. — DISTINGUISHKD IN Harper v, Newport News & M, V. Co., 90 Ky. 359. 2. EfTect, generally.— Where proceed- ings for the appraisalofdamages.commenced before the first judge of a court of common pleas, were directed by him to be trans- ferred to the county judge, on one (• ly's notice being given to the owner of the land, and the landowner subsequently appeared before the county judge without raising the objection that he had not had notice of the transfer — held, that such notice being f IV. R. Co., ^ Barb. (JV. V.) 449. 3. to collier jurisdiction. — A corporation existing under the laws of an- other state, having appeared and pleaded to an action in the New York supreme court, cannot subsequently object to the jurisdic- tion of the court. Cook v. Champlain Tramp. Co., I Den. (N. K.) 91. Brooks v. Nnv York 6- G. L. R. Co.. 30 Hun {N. V.) 47. Where a non-resident corporation is sued in a slate court, and served by process out- side of the state, an appearance is a waiver of objections to the jurisdiction of thd ourt, so far as the non residence is concerned, though it be expressly declared that the ap- pearance is fr>r the purpose of raising the question of jurisdiction only. St I.ouis, A. 5- 7. R. Co. V. Whitley, 77 Tex. 126, 13 S. W. Rep. 853. In transitory actions, private corpor.-uions, like natural persons, may be sued anywhere where the court can obtain jurisdiction of the corporation, either by legal service of process or its appearance by attorney ; and where such corporation appears and pleads to the action, and the court has juri.sdiction over the subject-matter, it cannot raise the question of the authority of the court to finally dispose of the case. New Orleans, J. 6- G. N, R. Co. V. Wallace, 50 Afiss. 244. Carpenter v. Central Park, N. &* E. R. R. Co., II Aid. Pr. N. S. {JV. K) 416, 4 /Jaly 550, mem. Appearance by counsel for a defendant cr.'poration, and taking part in the argu- ment of the case in the supreme court, re- served in the district court, will constitute a general appearance in the case and submis- sion to the jurisdiction of the court, and such appearance in the supreme court estops the defendant from denying his appearance in the district court. Cleveland, C. ally before a justice of the peace, in an at- tachment proceeding, and moves to sei aside a judgment by default, it thereby waives any defect in the service of summons. Gant V. Chicago, R. /. &* P. R. Co.. 79 Mo. 502.— Followed in Fitterling v. Missouri Pac. R. Co., 20 Am. & Eng. R. Cas. 454, 79 Mo. 504. Where a corporation appears in a suit in a circuit court of the United States and answers generally, it thereby waives the right to object that the court had not ac- quired jurisdiction over it because process was served on it in a district where it had no corporate existence. Kelsey v. Pennsyl- vania R. Co., 14 Blatchf. (U. S.) 89.— Dis- tinguishing Pomcroy v. New York & N. H. R. Co , 4 Blatchf. (U. S.) 120. O. as an adiniHsioii of corporate cliaractcr. — A corporation by appearing to a suit thereby admits its corporate exist- ence. Missouri River, Ft. S. &* G. R, Co. v. Shirley, 20 Kan. 660.— DISTINGUISHING Stanleys. Farmers' Bank, r; Kaii. 592. Fol- lowing Seaton v. Chicago, R. I. & P. R. Co., 55 Mo. 416.— Followed in Atchison, T. & S. F. R. Co. V. Brewer, 20 Kan. 669. Where a foreign corporation voluntarily appears in an attachment suit and gives bond in its corporate name, it is thereby estopped from denying its corporate exist- ence. Hudson V. St. Louis. K. C. &* N. R. 158 APPKARANCli, 7,8. Co., 53 Afo. 525. Smith v. Burlington &* M. K. A'. Co., II Mo. 526. Where a public corporation appears to an action and makes an affirmative defense, liice a private corporation, it admits its cor- porate existence. Eubank v. lidina, 88 Mo. 650. Where defendants are sued as a corpora- tion, a general appearance and filing an affidavit of merits do not prevent them from thereafter denying that they are a corpora- tion. Greenwood v. Lake Shore A'. Co , 10 Gray (Mass.) 373. 7. Special or limited apiietirtiiicc.— A full appearance waives defects in pro- cess, but a limited one, for the purpose of making objections, does not. New Albany &* S. R. Co. V. Combs, 13 /ml. 490. A special appearance for the single pur- pose of objecting to the jurisdiction of the court and setting aside service of sum- mons, and to dismiss the action for want of service, is not a general appearance or waiver of defects in the service. Sanderson V. Ohio C. H. &*C. Co.. 61 IVts. 6og, 21 N. W. Rep. 818. A provision of a state statute which gives to a special appearance, made to challenge the court's jurisdiction, the effect of a gen- eral appearance, so as to confer jurisdiction over the person of the defendant, is not binding upon the federal courts in that state, and does not apply to a suit brought against a railroad company in a district in which the company has not headquarters or a principal office. Galveston, H. &* S. A. R. Co. v. Gonzales, 1516^. A. 496.— Following Southern Pac. R. Co. v. Denton, 146 U. S. 202 ; Mexican C. R. Co. v. Pinkney, 149 U. S. 194. Reviewing Thorn v. Central R. Co., 26N. J. L. 121. Where a corporation enters a special ap- pearance for the purpose of removing a cause from a state to a federal court, it does not thereby consent to the jurisdiction of the state court. Hendrickson v. Chicago. R. I. &- P. R. Co., 22 Fed. Rep. 569.— Dis TINGUISHED IN Tallman v. Baltimore & O. R. Co., 45 Fed. Rep. 1 56. Where special appearance is entered for the purpose of moving to quash the officer's return on the summons, incidentally praying judgment in connection with the motion whether it should be compelled to plead, it is not such an appearance as would waive objection to the service of process. Fair- banks v. Cincinnati, N. O. &• T. P. R. Co., 54 Fed. Rep. 420, 9 U. S. App. 212, 4 C. C. A. 403. Where a company is sued for injuries to stock, a special appearance for no other pur|>ose except to a|)pcal from a justice of the peace to the district court, and there to make a case for the supreme court, i.s not such an appearance as will waive def( cts in the bill of particulars. ,S/. Louis &^S. I'. A". Co. V. Mc Reynolds, 24 Kan. 368.— F()I.I.(»\vki) IN St. Louis & S. F. R. Co. v. Ellis, 25 Kiin. 108 ; Kansas City, L. & S. W. R. Co. v. Richol- son, 31 Kan. 28. M. Comiielliiig appearniire.— Action was brought by plaintifT against defendants, a company incorporated in Nova Scotia, hut residing in the United States, and not British subjects. An attorney in Halifa.x was retained by them to defend the cause, and took some proceedings therein, and, ar- cording to the affidavit of pkintitT's attor- ney, promised to appear and plead. This, however, defendants' attorney denied. Plaintiff's attorney, after some years' delay, applied to the court for an order requirin); defendants' attorney to enter an appearance, in order that the court might have jurisdic- tion. Held, that if defendants' attorney hail given a signed understanding to appear, he would be compelled to do so, but that other- wise the court had no jurisdiction, and could not grant the desired order. Belloni v. Sydney &* L. R. Co., 9 Nov. Sc. 137. APPLICATION. For appointment of receiver, see Receivers, IV. — certiorari, see Certioraki, 8. Necessity of, to abate suit, set Abatement, 11. Of payments, see Payment, 7. APPOINTMENT. Of agents, see Agency, l-O. — attorneys, see Attorneys, 1-3. — directors, see Baltimore & Ohio Railroad, 1. — directors by city, see Direciors, 4. — personal representatives, see Exkcutoks AND Administrators, 1-4. — railway commissioners, see Railway Com- missioners, II. — receiver, see Receivers, I-III. — receiver, when abates action, see Abate- MI-NT, 8. 1'!^ AIM'KHNTICliS, 1.— ARBITRATION AND AWARD. 1. •i:>3 Of trustees, see Tkusts and Trustbks, I. — trustees for bondholders, mc Mortoaobs, V.I. — umpire, see Arbitration and Award, 10« APPBAI8EMENT. Of damages for killing stock, constitntional- ity of statutes as to, see Animals, In- JURIBS TO, 8. — land taken, see Eminent Domain, XI, 4. — property levied on, see Execution. 19. APPRENTI0E8. 1. Master'H right of action for in* Juries to.— A master may recover for per- sonal injuries to his apprentice, whereby he loses his services, caused by the negligence of a street-car company while on its cars as a passenger, though the contract to safely carry was made by the company and the apprentice in the absence of the master. Ames V. Union R. Co., 117 Mass. 541, 6 Am. Ky. Rep. 260. ARBITRATIOH AND AWARD. Assessment of land damages by arbitrators, see Eminent Domain. XI. 5 ; XV, 5 ( run trains, the matter comes within the terms of an agreement for referring all mat- ters and differences between the parties to arbitration. Llanelly R. &*D. Co. v. London -.*- C. T. Cas. 391. Port pat rick R. Co. v. Cale- donian R. Co., 3 Ry.Sf C. T. Cas. 189. The Railway Companies Arbitration Act, 1859, does not authorize railway companies to refer differences between them to arbitra- tion, but merely authorizes railway compa- nies to agree to a reference in a particular form and manner. Waterford &• L. R. Co. V. Great Western R. Co., 3 Ry. &* C. T. Cas. 546. 1 1 i \ '^r^. 454 ARBITRATION ANU AWARD, 2. III! M! With regard to diflcrvnces arising iti the course uf tiieir business, railway companies have power to agree to u reference without the authority of an act of parliament. VVattrford &* L. R. Co. v. Great IVestern R. Co., 3 A>. &* C. T. Cas. 546. The 8tli section of the Regulation of Railways Act, 1873, does not apply to an ar- bitration clause inserted in an agreement between railway companies, made in pursu- ance of a special net, where such special act does not in itself require or authorize the matters comprised in the arbitration clause to be referred. Waterford &* L. A'. Co. v. Great Western A*. Co., 3 Ry. &* C. T. Cas. 546. An agreement between two railway com- panies provided that all disputes were to be referred to a single arbitrator to be named as therein stated. The agreement was made under the provisions of a special act, but there was no clause in such act requiring or authorizing matters in difference to be re- ferred to arbitration. Held, that the rail- way commissioners had no jurisdiction to determine the matters in dispute on a refer- ence for that purpose. Waterford &* L. R. Co. v. Great Western R. Co., 3 Ry. 6- C. T. Cas. 546. Under a provision in a working agree- ment providing for the submission to arbi- tration of all questions arising between the companies as to its construction, the ques- tion whether certain new works on the line were a capital or revenue charge, and whether works of the former class were chargeable to the owning company, was re- ferred to the commissioners. The agree- ment contained no reference to new ex- penses not chargeable to revenue ; but it was contended that it must have been fore- seen that new works would be required from time to time, and that the question how they were to be executed and paid for was & matter arising generally out of the agree- ment, and, therefore, one of those matters which the companies had agreed, in case of difference, to settle by arbitration. Held, that such particular difference could not properly be said to arise out of anything contained in the agreement, and that the arbitration clause did not, save questions of p.-oviding for the due working of the line ill I lie manner contemplated by the agree- ment (e.g., to meet some requirement needed for the protection of the public), apply to matters not mentioned in any part of the agreement. Midland G. W. R. Co. V. Dublin &• Af. R. Co., 4 Ry. &• C. T. C,u. HI- An apparatus for heating water for tin- comfort of passengers is a revenue charged, for whether made a fixture or not, such an apparatus is more an accessory to the busi- ness done upon a railway than to the mil way upon which the business is done. Miii land G. W. R. Co. v. Dublin &* Af. R. Co., 4 Ry. 6- C. T. Cas. 145. 2. Who may Hiibiiilt or apply I'or reference.— It is within the powers of the directors of a railroad company to in- quire into the regularity of a dividend that has been made, and to order that the sum paid be refunded, but they have no power to submit such questions to arbitration, especially against the consent of some of the stockholders. Grata v. Redd, 4 B. Mon. (Ay.) 178. Where a dispute arises between a railroad company and a party who had erected ai\ eating-house at a station, on the lands of the company, a resolution of the board of direc- tors, authorizing the president of the com- pany to receive the building at the valuation of disinterested parties, clothed him with the power to refer the matter to arl)itraiioni and the appearance of the company be- fore the arbitrators, by its agents and counsel, without objection to the reference, amounts to a ratification, and estops it from making any objection to the submission after the award is made. Memphis &* C. A'. Co. V. Scruggs, 50 Aliss. 284. Agents of a railroad company, who were employed to purchase land, had frequently, but without express authority, referred the question of the price that should be paid for land to arbitrators, and the price awarded had been paid by officers of the company. Held, that the agents had the implied au thority to submit such matters, and that the company would be bound thereby. Wood v. Auburn '^'- C. T. Cas. 267.— Reviewing Caledonian R. N' m ARIU I RATION AND AWARD, », 4. 4b:t A'. c;>. r. c'«.v. Co. »'. Greenock & W. B. R. Co.. L. R. a II. L. Sc. 347 ; Great Western R. Co. v. Waterford & L. R. Co., 17 Ch. D. 493. DlSTiNOUlSH- INO Great Western R. C<>. v. Halesowen R, Co.. 53 L.J.Q. B.473, 4 Ncv. & Man. 224. The clause in the 8th section of the Re- gulation of Railwuy.s Act, 1873, which eii- nbles one party to apply for the arbitration of the railway commissioners, " where any (lifTerence between railway companies is, under the provisions of any general or siicciul act, required or authorized to be referred to arbitration," applies only to cases in which the specific diflfercncc has been required or authorized by a general or special act to be referred to arbitration. OrM/ Western K. Co. V. Waterford &* L. R. Co.. L. R. 17 Ch. D. 493. 5° f- /• '^h. D. 5'3. 44 /^. T. N. S. 723, 29 W. R. 826.— CoN.siDKRKiJ IN Stan- nard v. Vestry of St. Giles. L. R. 20 Ch. D. 190, 51 L. J. Ch. 629, 46 L. T. 243, 30 W. R. 693- 3. Wlicii a miliinlHHioii may 1>« coiiipclhMl. — It seems that an agreement which provides that all ditTcrcnces shall be referred to arbitration when the agreement has been scheduled to and continned by an act of parliament, entitles one of the com- panies parties to the agreement to compel a reference to the railway commissioners, under § 8 of the Regulation of Railways Act. 1873. Bedford &^ N. R. Co. v. Midland R. Co.. 4 Ry.&'C. T. Cas. 170. A working agreement between two com- panies, made in pursuance of a special act, contained a general arbitration clause. Hrld, that a difference under this agreement was a difference between railway companies under the provisions of a special act re- quired or authorized to be referred to arbi- tration, within the meaning of the 8th section of the Regulation of Railways Act. 1873. Portpatrick R. Co. v. Caledonian R. Co., 3 Ry. &- C. T. Cat. 189. A clause in a special act of a railway com- pany provided that the engines, carriages, officers, and servants in charge should have the privilege of using one railway to a certain junction, and that any differences which might from time to time arise should be set- tled by arbitration. Held, that it was not a condition precedent to the exercising of the running powers and facilities conferred by the above section that the differences stated should be settled by arbitration. Toff Vale R. Co. v. Rarry D. 6- R. Co., 7 Ry. &» C. T. Cas. 53. 4. ICft'ert of tlic mihiiiiHMioii to oimt JiiriH«llcttoii of coiirtN.— Where, under an agreement nmlirmed by act of parlimcnt, the parties were l>ound to settle by arbitra- tion all differences that might arise between them as to the meaning and effect of the agreement, or as to the mmie of carrying it out — AM/, that the jurisdiction of the courts was by this agreement excluded, and that all disputes arising under it must be settled by arbitration. Caledonian R. Co. v. Grten- ock &* W. B. R. Co.. I.. R. 2 .SV. ////. 347, 3 Ry. * I). R. Co. v. South Eastern R. Co., 40 Ch. 1). 100, 6 Ry. &• C. T. Cas. Ixviii.— DiSTiNCJUiSHiNG Wat- ford & R. R. Co. V. London & N. W. R.Co., L. R. 8 Eq. 231 ; Caledonian R. Co. v. Green- ock & W. B. R. Co.. L. R. 2 H. L. Sc. 347. Although an account between two mil- way companies is of such a nature as to render it a proper subject of a suit in equity, the court is bound to give effect to a defi- nite agreement to refer disputes to arbitra- tion, under the Railway Companies Arbi- tration Act. i8j9, $ 26. and cannot entertain the suit. Watford &- R. R. Co. v. London &* N. W. R. Co., L. R. 8 Eq. 231, 38 L. J. Ch. 449, 17 W. R. 814. 21 L. T. N. S. 81. Where an agreement between two rail- way companies contains a provision to refer all differences to an arbitrator to be ap- pointed each year, the jurisdiction of the court to determine a controversy is not ousted where no standing arbitrator has been appointed in accordance with such provision. Wolverhampton &* W. R. Co. v. London &- N. W. R. Co., L. R. 16 Eq. 433, 43 L. J. Ch. 131.— Considered in Don- nell V. Bennett, L. R. 22 Ch. D. 835, 52 L. J. Ch. 414, 48 L. T. 68, 31 W. R. 316. Where a contract provides that the cer- tificate of the engineer or of an arbitrator shall be a condition precedent to payment, the court does not obtain jurisdiction be- cause of the power to refer to arbitration. Sharpe v. San Paulo R. Co., L. R. 8 Cli. 597. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 U;|2j8 M2.S uiUii ■ 2.2 Kl ai^ Mil u us lit u 124 tiS. 12.0 I iRni PhotDgraphic Sciences Corporation 23 WIST MAIN STMIT WnSTII,N.Y. 14SM (716)t7a-4S03 ,% •y: 456 ARlilTKATION AND AWARD, 5-8. I An agreement between twn lailrcad com- panies, to refer all matters of dispute be- tween tliem to arbitration, does not oust a court, either at law or in equity, oi jurisdic tion, but upon a proper case made a court will even enjoin a submission to arbitration. March v. Eastern R. Co., 40 A'^. H. 548. An agreement to submit to arbitration will not be held valid when its effect is to oust the court of jurisdiction. Chamberlain V. Connecticut C. R. Co., 54 Co"n. 472, 4 N. Eng. Rep. 477, 9 At I. Rep. 2\i . By the terms of a contrat jei.'een C. & Co. and the defendants, a railway company, it was agreed that all matter.^ i-^ dispute between the parties arising or tv 'vc"". out of or connected with the contr^c ' :'d be settled by arbitration. C. & C ;.' came insolvent, and this suit was brought iy their assignee in insolvency to recover the cost of the construction of the railway. Upon the application of the defendants under § 167 of the C. L. P. Act (C. S. U. C. c. 22), an order was granted staying all proceedings in this suit, it being held that the circum- stance that the contractor had become in- solvent did not take the case out of the statute. Johnson v. Montreal 6f O. R. W. Co., 6 Prac. (Ont.) 230. 5. What ainouiits to h submission. — Defendant entered into an agreement with a railroad company to erect stone crushers along the line of its road, with a provision in the contract to the effect that when the stone was all furnished the com- pany should have the option of buying the crushers, and if a satisfactory price could not be agreed on between the parties each should select an arbitrator and the two thus selected should select athird, who should fix the price of such crushers, which decision should be final. Held, that this was a sub- mission to arbitrators whose decision hadall the force of an award. Missouri, K. <&• T. R. Co. V. Elliott, 56 Fed. Rep. 772. 6. Revocation.— Where matters in dis- pute have been submitted to arbitration, a mistake of law by the arbitrator touching I matters within his jurisdiction does not give a dissatisfied party the right to come into court and have the submission revoked. James V.James, 22 Q. B. Z>. 669. — Explain- ing East & W. I. D. Co. V. Kirk, 12 App. Cas. 738. After the directors of a company had en- tered into an agreement to arbitrate a cer- tain matter, they voted to revoke the sub- mission unless the arbitrators would make certain findings. Subsequently the presi- dent of the company signed a paper in the name of the corporation, absolutely revoking the submission, which was laid before the directors and ratified and approved, with a recital that the directors " will treat the said submission as no longer in force." Held, that this was an unconditional revoca- tion of the submission. Boston &^ L. R. Co. V. Nashua 6» L. R. Corp., 139 Mass. 463.— Reviewed in Nashua & L. R. Corp. V. Boston & L. R. Corp. , 1 57 Mass. 268. II. PROCEEDINGS BEFOBE THE ARBITRATORS. 7. Qualifications of arbitrators.— A bank held shares of a railroad company as collateral security for the debt of a per- son of fair standing and good credit. Held, that this would not disqualify stockholders of the bank from acting as arbitrators in a matter wherein the railroad company was interested. Their interest was too remote and contingent to induce a reasonable sus- picion that it would influence their decision. Leominster v. Fitchburg &* IV. R. Co., 7 Allen (Mass.) 38. A railway company entered into a con- tract, one provision of which was that T., "if and so long as he shall continue to be the company's principal engineer," should be the arbitrator as to matters in difference. Afterwards the company was amalgamated by act of parliament with another railway company. Disputes having arisen between the parties to the contract, T. made two awards as to the subject-matter of it. Held, that he was still the proper person to make the awards. Wansbeck R. Co. v. Trowsdale, L. R. I C. P. 269, 1 2 Jur. N. S. 740. 8. Their jurisdiction anrt powers.— The arbitrators to be appointed under the Ga. Act of 1847, to assess and award damages against railroad companies for injuries done to property, are a court with limited jurisdiction, and the record of their proceedings must show nil that the Act re- quires to give jurisdiction, and if it does not the proceeding is coram nonjudice and void. Macon iS- W. R. Co. v. Davis, 13 Ga. 68. The record in such case should show that the proceedings took place at the depot of the company in that magistrate's district, on the line of the road, in the direction the train was moving when the injury occurred, nearest to the point where the injury did 1 1 1 f i ARBITRATION AND AWARD, it-Ui. 45^ f I occur; that the magistrate who appointed the arbitrators was a magistrate of the dis- trict ; that the arbitrators are freeholders of that district ; and that the agent of the company did not attend at the depot in that district, to hear complaint, as directeu by the statute. Macon &* IV. R. Co. v. Davis, 13 Ga. 6S. When the agent fails so to attend, and arbitrators are then appointed, and they pro- ceed to make an award, it is not necessary that the company should have notice of their proceedings. Macon &^ IV. K. Co. v. Davis, 13 Ga. 68. Where real property is to be surrendered to the lessor, and the matter of compensa- tion that he is to make to the lessee is sub- mitted to arbitration, the arbitrators have the right to construe the contract, and esti- mate the value of the property at the time, upon the testimony before them ; and al- though they may have erred in the applica- tion of tiie law or the facts, the court will not decree their award void. Memphis &* C. R. Co. V. Scruggs, 50 Miss. 284.— QUOT- ING Jones V. Boston Mill Co., 6 Pick (Mass.) 148. Reviewing Boston Water Power Co. v. Gray, 6 Met. (Mass.) 131. An agreement, submittmg to arbitration the question of damages to an abutting owner caused by the erection and operation of an elevated railway, provided that the arbitrators, by a majority vote, might exer- cise their discretion as to the manner and way in which to inform themselves of the matters and tilings in dispute, and that they might refuse to hear witnesses and counsel, and proceed to follow their determination in whatever manner they, or a majority of them, might decide. Held, that this authorized the arbitrators to inform them- selves by reading the evidence in other similar cases reported. Bennett v. Union El. R. Co., 5 Silv. Sup. Ct. 464, 9 N. Y. Supp. 915.— Distinguishing Halsteadz/. Seaman, 82 N. Y. 27. 9. Evidence on the hearing.— An agreement providing for the appointment of commissioners to fix the value of certain property to be acquired by a railroad com- pany, provided that the commissioners should be governed, in estimating said valuation, by the rules of law applicable to proceedings under the statute, with a right of appeal ; that no compensation was to be allowed for damage to this or adjoining property, but they were to take into co;!- sideration "the capabilities of the premises for any use whatever." Helil, thai this would fairly admit, as an element of value, evidence of improvements of which the property was capable. In re New York, L. Sm IV. R. Co., 27 Am. &* Eng. R. Cas. 404, 102 N. Y. 704, 7 N. E. Rep. 559, 2 N. Y. S. R. 456, I Silv. App. 79 ; reversing 40 Hun 130; which modified 2 Hviv. Pr. N. S. 225. 10. Appointment of umpire. — An appointment of an umpire by the board of trade within twenty one days after the last appointment of two arbitrators who made no award is valid. In re East "ere referred to arbitration. By clause 2 of the order, the referees were directed to make and publish their award in writing on or before January 3, 1887, or such other day as they should appoint ; but during the reference it was agreed that they should go on the ground and ascertain the quantities of material moved, and certify their findings; other questions to remain open. On August 23d, preceding the above date, the arbitrators made and published a report as to the quantities of material moved. Held, that such finding was not an award as provided for under said clause 2, nor an award within the meaning of the C. L. P. Act, § 209, but merely a finding of facts pending the reference, so as to enable the arbitrators thereafter to make an award, Conmee v. Canadian Pac. R. Co., 16 Ont. 639. 10. Time within whicli to make.— Under § 23 of the Lands Clauses Consol- idation Act, 1845, the umpire must make his award within three months from the date of his appointment. Pullen &> Liverpool, {Mayor) in re, ^i L.J. Q. B.28S, 46 Z. T. N. S. 391. An award made after the statutory period of three months will not be set aside if the parties have consented enlarge the time. Palmer v. Metropolitan R. Co., 31 L. J. Q. B. 259. Where an arbitrator from time to time enlarged the period for making his award under the submission made by the parties, the award was valid notwithstanding it was not made within the statutory period of three months. Caledonian R, Co. v. Lock- hart, 6Jur. JV. S. 131 1,8 py. R. 373, 3 L. T. N. S. 252, 3 Macq. H. L. Cas. 808. 20. All the arbitrators must con- cur in award.— An award, by the com- mon law, to be valid must have been concurred in by all the arbitrators. Jeffer- sonville R. Co. V. Mounts, 7 Ind. 669. Under § 5 of "an act for the benefit of the Ohio & Indianapolis Railroad Com- pany," etc. (Local Laws 1849, p. 364), there can be no valid award where all the arbitra- tors have not agreed thereto. Jeffersonville R. Co. v. Mounts, 7 Ind. 669. The general statute of 1843, concerning arbitrations, and the fifth section of "an act for the benefit of the Ohio & Indianapolis Railroad Company," etc., above men- tioned, cannot be taken in pari tnnteria. Jeffersonville R. Co. v. Mounts, 7 Ind. 669. One of the arbitrators was not present when an award was agreed upon, nor noti- fied of the meeting at which it was made. Held, under the Rev. St. 1843, that the award was invalid. Jeffersonville R. Co. v. Mounts, 7 Ind. 669. i^t I: !! \m 460 ARBITRATION AND AWARD, 21-25. Where, under tlie terms of a submission, the award is to be by the arbitrators or a majority of them, an award made by a ma- jority, in the absence of anything to show fraud, will not be set aside merely because the amount is excessive. Port Huron &* N. W.R. Co. V. Callanan, 6i Mich. 22, 11 West. Rep. 525, 34 A'. W. Rep. 678. 21. Award luiiMt follow submis- sion. — Where the parties submitting tlie matter to arbitration request the arbitrators to hear and determine separately the dif- ferent items submitted, an award is not invalid because not embracing all the mat- ters submitted ; nor is its validity affected where the agreement to arbitrate was re- voked after the award was made and pub- lished. Nashua &* L. R. Corp. v. Boston &• L. R. Corp., 157 Mass. 268, 3t N. E. Rep. 1060.— Reviewing Boston & L. R. Corp. v. Nashua & L. R. Corp.. 139 Mass. 463. 22. Returi>. of award to court.— An award inclosed in an envelope and sent by mail, addressed to the clerk of the court, at the court house, and received by him and so endorsed, is a return of the award to the court within the meaning of Mass. Pub. St. ch. 188, § 8, providing that "the award shall be delivered by one of the arbitra- tors to the court * * * , or shall be inclosed and sealed by the arbitrators and trans- mitted to the court. " Morrellv. Old Colony R. Co., 158 Mass. 69, 32 N. E. Rep. 1030. Under Mass. Pub. St. ch. 188, § 8, requiring that awards be inclosed in an envelope and sealed by the arbitrators and transmitted to the court, it is not necessary that there be anything written on the envelope showing its contents, though it is a common and con- venient practice to do so. Morrell v. Old Colony R. Co., 158 Afass. 69. 32 A^. E. Rep. 1030. 23. What awards are valid.— Where a proceeding is instituted under the Penn- sylvania act of April 3, 1830. to obtain the possession of demised premises for non- payment of rent, an award by the arbitra- tors finding a certain amount of money due is irregular, and the award will be set aside. Philadelphia N. R. Co.. 2 Ry. &• C. T. Cas. 251. The R. Co. having incurred considerable outlay in the construction of the joint station and line, applied for an order for payment from the N. Co., or that the latter company might give security. The N. Co. contended that no payment was due from them until the works were completed. Held, that under the award payment must b** concurrent with both parties, but that the R. Co. was not entitled to be paid until they advanced the side of the works in which the N. Co. were interested as far as their own, and that in the meantime the N. Co. must give security for the costs and expenses incurred by the R. Co. Isle of Wight R. Co. v. Ryde • A*. A. L. R. Co. V. Mangham, 49 Ga. 266. Where an arbitrator, in passing upon the claim of a contractor with a railway com- pany for extra work, has not been guilty of misconduct, and lias acted witliin liis juris- diction, his mistake in point of law, in ad- mitting certain evidence, is ncj ground for setting aside the award. Favicll x. Eastern Counties R. Co., 2 Exch. 344, 17 L.J. Exch. 223. A railroad hotel or eating-house was built upon the lands ("' a company, and at the end of the term the matter of compensation that should be paid by the company upon taking possession of the property was referred to arbitration, w itli a provision that tlie amount of the award should constitute a lien on the property. Held, that as this lien could only be enforced by a court of chancery by a sale of the property, the lien attached from the making of the award and gave the court equity jurisdiction. Memphis &* C. R. Co. v. Scruggs, 50 Miss. 284. 32. Iiiipeacliiiieut fur fraud or cor- ruption.— A distinction must be made where an award is sought to be vacated upon motion, and where a court of equity is re- resorted to to set aside the award for fraud or concealment. In the first class of cases the award will not be set aside or vacated where any mistake of law or fact does not appear on the face of the award itself ; but in the second class extrinsic evidence may be resorted to to show that the arbitrators have acted through prejudice, or that there have been fraudulent practices or conceal- ments by the prevailing party. Valle v. North Mo. R. Co., 37 Mo. 446. Though the simple fact that one of the parties to the submission wrote the award in the absence of the other, who was not noti- fied of the time and place of meeting of the arbitrators proceeding to make their award, may not, of itself, be sufficient to invalidate the award, still it may be considered, unex- plained, as affording just ground for sus- picion and criticism. But where such party in such case wrote the award himself,and so wrote it that it is materially erroneous and deceptive in his favor, and the arbitrators did sign it as written, a court of equity may set it aside, Dickinson v. Chesapeake 6* O. R, Co., 7 W. Va. 390. Mediators (amiables compositeurs) are not subject to the provisions of art. 1346, Quebec Code of Procedure, and their award can only be set aside by reason of fraud or collusion if given on the matters referred to them. So held, on petition by a contractor for the construction of a railway, to set aside the i ■i ■ t Hi .^ aU\ 4G4 ARBITRATION AND AWARD, 33— ARREST, 1. iiward of arljitiator!) rinding tlic amount due liin). McGrifvy v. Queen, 19 Can. Su/>. Ct, I So; reversing 14 Can. Sup. CI. 735. Where a railroad company is one of the parlies in an arbitration procecdinK. proof lliat one (jf tiie arbitrators hud received an oiler of the solicitorship of tlic company while the reference was pending, which lie accepted after a finding, is good ground for setting aside the award. Conmec v. Cana- dian Pac. R. Co., 16 Ont. 639. Matters in dispute between a railroad company and its contractor were submitted t(^ arbitration, and resulted in an award and judgment for a large sum in favor of the contractor. Afterward the company began suit to set aside the award, on the ground of fraud, in that its assistant engineer was a secret partner in the contract. Held, that proof that the assistant engineer only ac- quired an interest after the contract was made and had no connection with the mak- ing of the contract or superintending the work was not sufficient to set aside the award. Union K. Co. v. Dull, 124 U. S. 173, 8 Sup. a. Rep. 433. It is no ground for setting aside an award in such case that the assistant engineer was sworn as a disinterested witness and gave evidence before the arbitrators in favor of the contractor, where there is no evidence to show that he did not tell the truth, but where in fact he was corroborated. Union R. Co. V. Dull, 124 U. S. 173, 8 Sup. Ct. Rep. 433- 33. Impeaclimeut for iniscouduct of arbitrators.— If the arbitrators proceed without the knowledge of either party and without giving him an opportunity to be heard, or if they decide without any evi- dence, it is such misconduct as will set aside their award. West Jersey R. Co. v. Thomas, 21 N.J. Eq. 205. A proceeding for malicious prosecution against a railroad company was submitted to arbitration, with the provision that the referees, or two of them, should report to the court, whose report should be binding and conclusive upon tlie parties. Held, that an award which was unobjectionable upon its face will not be set aside upon the ground that a heated conversation took place between two of the referees on the one side against the other, whereupon the two refused to further confer with the third and made the award without his signing it. Roberts v. Old Colony R. Co., 123 Muss. 552. ARGUMENT. Of counsel to the jury, see Trial, V, 5. discretionary power of court over, see Api'Eal, 27. improper remarks, when ground for re- versal, see Afpeai., 30, . objections to, how to be taken, see AlTEAL, 1)7. reading statutes to jury, see Animals. Injuries to, 525. ARKANSAS. Aid to railroads by the state, see State Aid. II. Double damages for killing stock in, see Ann MALS, Injuries to, 505. ARREST. For crime, see Criminal Law, II. Of execution sales, see Execution, 24. — judgment, see Judomenp, V. — receiver, when a contempt, see Contempt, 4. Offense of resisting, see Criminal Law, III. See also False Imprisonment. 1. In civil actions (grounds for.— Where the agent of a railroad company re- ceives gold as the funds of the company and pays in silver at a time when gold is at a premium, proof that he had not accounted for the premium, but had written a threat- ening letter to prevent one from informing the company that he had been dealing with brokers and had made over $5000, is suffi- cient evidence to warrant an order of arrest in an action for the premium so converted. Panama R. Co. v. Robinson, 4 T. (S- C. (A^. Y.) 672, 2 Hun 381. Defendants, while acting in a fiduciary capacity toward the company, took certifi- cates of stock and converted them, with the coupons attached, and disposed of the same and appropriated the proceeds. Held, that, if the certificates were the property of the company, then the defendants were liable to arrest under N. Y. Code, § 179. subsec. 2, authorizing nrrest of the party in an action fc. property embezzled or fraudu- lently misapplied by an officer or agent of a corporation, in the course of his employ- ment as such, or by ^ . agent or other person acting in a fiduciary capacity. Northern R, Co. V. Carpentier, 4 Abb. Pr. {N. Y) 47. Under the N. Y. Code, § 206, a party may be arrested when he nas been guilty of a ARREST, a-5. 465 fraud in concealing and disposing of the property, or in the talcing, detention, or conversion for which the action is brought ; and to maintain this action it is not essen- tial that the plaintiffs should be the owners of property taken, detained, or converted. A bailee, trustee, or any other person who is responsible to liis principal may maintain the action. Northern R. Co. v. Carpentier, 4 Abb. Pr. {N. )'.) 47. 2. Of feiiinlcM. — A female defendant was shown to have aided and abetted co- defendants in taking railroad certificates of stock and disposing of the same for their own nse and benefit. Held, that this showed a wilful injury to property, subject- ing the female to arrest under the N. Y. Code, § 179, providing that no female shall be arrested in any action except for a wilful injury to a person, character, or property. Northern R. Co. v. Carpentier, 3 Abb. Pr. {N. Y.) 259, 13 How. Pr. 222. A woman who was known to be of lewd character came into defendant's waiting- room several hours before train time, and for misconduct there was removed by the police at the request of the company's agent. Held, that if she was entitled to a verdict at all it was for nothing more than nominal damages, and that a verdict in her favor for $175 should be set aside. Beeson v. Chi- cago, R. I. &- P. R. Co., 13 Am. &^ Eng. R. Cas. 45, 62 Iowa 173, 17 N. W. Rep. 448. 3. Of passengers, at instance of carrier.* — A police officer who, in re- sponse to the invitation of the regular agents of the company, assists in ejecting a passenger becomes a special agent of the company for that purpose, and is subject to the same rule in regard to excessive vio- lence in executing the regulations of the company as its employes. Jardine v. Cor- nell, 34 Am. &> Ettg. R. Cas. 307, 50 N. J. L. 485, 14 Atl. Rep. 590. If the conduct of a passenger unlawfully persisting in riding in a railroad car is such as to constitute him a disorderly person, a policeman may, by virtue of his office, arrest such disorderly character, notwithstanding the fact that such policeman was originally called in as an agent of the company; and for violence incident to such arrest the * Liability of company for arrests of passen- gers by servants, see note, 32 Am. St. Rep. 100. Company not liable for unlawful arrests by servants, see note, 18 Am. & Eno. R. Cas. 386. I D. R. D.— 30. company and its agents ate not liable. Jar- dine v. Cornell, 34 Am. &^ Eng. R. Cits. 307, 50 N. J. L. 485, 14 ////. Rip. 590. When a city police officer takes by force a disorderly person from the scene of dis- order to the |)olice station, such action will be presuini'd to have been done by virtue of his official character, notwithstanding the fact tiial prior to such disorderly conduct the officer was in law the agent of the de- fendant ; and for force used in making said arrest the defendant is not liable. Jar- dine V. Cornell, 34 Am. &^ Eng. R. Cas. 307, 50 A\J. L. 485, 14 Atl. Rep. 590. 4. Of person obstructing track.— Persons in cliarge of a passenger train saw an obstruction on the track, and about the same time saw plaintiff running from the place of the obstruction. They stopped the train, suspecting that he had placed the obstruction there, captured him, and took him before an officer for a preliminary ex- amination. Sufficient evidence was not produced to hold him, and he was dis- charged and returned without expense to himself. They had no authority to make the arrest, unless such authority were im- plied from their being employes of the company. Held, that the company was not liable. Porter v. Chicago, R. I. 6- P. R. Co., 41 Iowa 358. 5. Power of ofScer in effecting arrest. — An officer having a writ by which he is commanded to arrest the body of the defendant, a railroad engineer, may, for the purpose of making the arrest, lawfully stop a train of cars run by such engineer. St. Johnsbury icious persons, assaulted him, as he thought, for the purpose of preventing him committing the robbery. Held, that the mistake of the conductor did not exempt the company from liability for the actual damage resulting from the act, and that %'zuQO was not <■. < cssive. Texas ^ P. R, Co. V. Graves, 2 I ) x. Unrep. Cas. 306. Plaintiff bought a through limited ticket, and after ')■ had b( nght it wns infomed that the regui; ' irain had gono, ^lut that a special train iiad been nv 'Ic up for him and others who had not flep.M'.id on the regular train. This train, liowe\ er, did not run to the end of plaintiff's journey, and at a station where he was required 10 change cars the gate- keeper refused to allow him ti, 1 ass the gate, saying his ticket was not good, and assaulted him and violently pushed him back. Held, in an action for this assault, that the com- pany was liable. It was its duty to inform its agents along the routf* of the status of plaintiff, and that his ticket must be hon- ored. Wat kins v. Pennsylvania R. Co., {D. C.) 52 Am. (&^ Eng. R. Cas. 1 59. 3. by rtmHoii of ratifivatiuii.— An assault by a servant of a railway com- pany who imprisons a passenger to compel iiim to pay his fare may be ratified by the company. Eastern Counties R. Co. v. Broom {in error), 6 Excli. 314, 15 Jur. 297, 20 L. J. Exch. 1 96, 6 Riu'lw. Cas. 743. — Nor FOLLOWED IN Goff V. Great Northern R. Co., 3 El. & El. 672, 30 L. J. Q. B. 148, 7 Jur. N. S. 286, 3 L, T. 850. Where a railway company ratifies an act of its agent in committing an assault on its behalf and for its benefit, it is liable to an action therefor. Eastern Counties R. Co. v. Broom {in error), 6 Exc/i. 314, 6Rail7V. Cas. 743, x^Jur. 297, 20 L.J. Exch. 196.— Not FOLLOWED IN Goff V. Great Northern R. Co., 3 El. & El. 672, 30 L. J. Q. B. 148, 7 Jur. N. S. 286. 3 L. T. 850. Retaining a conductor in the service of the company after it has notice that he has committed an assault upon a passenger is sufficient ratification of his act by the com- pany as to authorize a jury to give exeni- plary damages. Bass v. Chicago &* N. //'. R. Co., 39 Wis. 636. 4. Wanton and inalicions assault,''. — (1) Company liable.— \ railroad coinpaiy is liable in damages for a wanton and nia!'- cious assault by one of its .scr\aiUs nti a •4 468 ASSAULT, CIVIL ACTION FOR, 4. § Ss passenger. Williams v. Pullman Palace Car Co., 33 Am. &* Eng. R. Cas. 414, 40 La. Ann. 417, 4 So. Rep. 85.— Quoting Keene V. Lizard i, 5 La. 433. The company is liable for the wilful as- sault of a brakeman upon a passenger who is lawfully on the train. Chicago &^ E. I. R. Co. V. Flexman, 9 ///. App. 250. It is the duty of railroad companies to protect their passengers against outrage and insult; and a company will be liable for an assault by a conductor upon a passenger, though it be malicious and outside of the conductor's line of duty. Dillingham v. Anthony, yj Am. &• Eng. R. Cas. i , 73 Tex. 47. 3 L. R. A. 634, II 5. W. Rep. 139. A railroad company is responsible to a passenger for a battery by the conductor, committed first on the car, and repeated shortly afterward at the office of the com- pany, whither the passenger had gone to make complaint to the superintendent. Savannah Si. &^ R. R. Co. v. Bryan, 86 Ga. 312, 12 S.E. Rep. 307. No degree of carelessness or negligence on the part of a passenger will excuse a wanton and malicious attack on him by the conductor or other servant of the railroad company. No matter how negligent a pas- senger may be for his safety, that will not warrant the infliction of a wilful injury by a railroad employe. Wabash, St. L. &> P. A'. Co. V. Rector, 9 Am. &* Eng. R. Cas. 264, 104///. 296. (2) Company not liable. — For a wilful and malicious trespass by a servant, not com- manded or ratified by the master, but per- petrated to gratify the private malice of the servant, under mere color of discharging the duty which he has undertaken for his master, no action will lie against the mas- ter. Evansville &* C. R. Co. v. Baum, 26 Ind. 70.— Disapproving Pennsylvania R. Co. V, Vandiver, 42 Pa. St. 365 ; Seymour z/. Greenwood, 30 L. J. Exch. 189. — Distin- guished IN Indianapoli.s P. & C. R. Co. V. Anthony 43 Ind. 183. Followed in Brokaw v. New Jersey R. & T. Co., 32 N. J. L. 328. But if the act of the servant was neces- sary to accomplish the purpose of his em- ployment, and was intended for that pur- pose, then it was implied in the employ- ment, and the master is liable, though the servant may have executed it wilfully and maliciously. Evansiiille &* C. R. Co. v. Baum, 26 Ind. 70. A railway company is not liable for dam- ages resulting from a wilful and malicious trespass committed upon a stranger to the company by its engineer or conductor, out- sif'e of and beyond the scope of his au- thority or line of duty. New Orleans, J. . Rep. 414.— Reviewed in Atchison, T. & S. F. R. Co. V. Gants, 34 Am. & Eng.. R. Cas. 290, 38 Kan. 608. 21. Kecoverics held not excessive. — The passenger having been badly beaten, kicked, cut with a knife, and had his arm broken, a verdict for $2000 is not excessive. Savannah St. &* R, R. Co. v. Bryan, 86 Ga. 312, 12 5. jE'. Rep. 307. A verdict of $4000 where punitive dam- ages were authorized is not so excessive as to demand a reversal, where the action was by a passenger for being assaulted by a brakenian with an iron poker, from which he received a fracture of the skull and was threatened with paralysis of the optic nerve. Hanson v. European &* N. A. R. Co., 62 Me. 84. — Following Goddard v. Grand Trunk R. Co., 57 Me. 202. A female passenger sued for improper familiarities taken with her by a conductor. It appeared that she was a school-teacher of considerable refinement and capable of keenly feeling such indignities. Held, that a verdict for $1000 in her favor was not ex- cessive. Craker v. Chicago &* N. W. R. Co., 36 Wis. 657, 9 Am. Ry. Rep. 1 18.— Followed IN Hinckley v, Chicago, M. & St. P. R. Co., 38 Wis. 194. ASSENT. Estoppel by. see Estoppel, IV, 3. ASSESSMENTS. For drainage, see Drains, 7. — local improTements, see Streets and High- ways V, 5 ; Street Rah ways, VIII, 3. Of damages, see Damages, III. for land taken, see Eminent Domain, XI, 3-7; XV. 5. — taxes, see Taxaiio.n, VII. upon street railways, see Street Rail- ways, VIII. On stock subscriptions, see Subscriptions to SrocK, II. I ASSESSORS. Boards of, see Taxation, VII, 4, 5. ASSETS. Administration of, in equity, see Equity, O. Marshalling, see Insolvency, 5. What are, see Executors and Adminis- trators, 7« ASSIGNEE. Generally, rights and remedies of, see As- signmknt, 17-24:. Of bankrupt, rights and powers of, see Bank- ruptcy, 0-9. Right of assignee of cause of action to sue see Animals, Injuries to, 318. ASSIGNMENT. Of claims for wages, see Employes, 11. — dower in railroad stock, see Dower, 2> — errors, see Appeal, 135. — franchises, see Franchises. 4. — lease, see Landlord and Tenant, 5. — laborer's lien, see Liens, III, 4. — patent rights, see Patents for Inventions, III. — stocks, see Stock, V. — warehouse receipt, see Warehousemen, 3. I. WHAT IS ASSIGNABLE 475 n. WHO HAT ASSIGN, AND HOW 478 m. VALIDITY, INTEBPBETATION, AND EFFECT 478 IV. BIGHTS AND BEMEDIES OF THE ASSIGNEE 480 V. EaVITABLE ASSIGNMENT 481 I. WHAT IS ASSIGNABLE. 1. In general.— A contract between a railroad company and individuals, that the company will construct a depot at a certain place, and that upon its construction the in- dividuals will pay to the company a certain sum of money, is negotiable by indorse- ment so as to vest the title thereof in each indorsee successively. Vannoy v. Duprez, 72 Ind. 26. One who has a right of action against a railway company for damages to his city lot on account of the building of a road on the : n 476 ASSIGN Ml' NT, '2,:i. I in- '■Hf , ''act adjacent street, does not transfer his right o( action by conveying the lot to another by warranty deed after the road is built and in operation, /'ra// v. JMi AToines N. VV. J\\ Co., 32 Afft. &* /fw;'. A*. Ccts. 236, 72 /own 249, 33 N. IV. Rep. 666. — DiSTlN- UUISHKD IN Merchants' llnion Barb-Wire Co. V. Chicago. R. I. & P. K. Co., 43 Am. & Eng. R. Cas. 121, 79 Iowa 613. FoL- LOWKu IN Jolly V. Des Moines N. W. R. Co., 72 Iowa 759. The mere naked right to sue, unaccom- panied by a conveyance of the property itself, is not assignable. Graham v. La Crosse <&- M. R. Co., 1 Am. 6- Eng. R. Cas. 416, 102 U. S. 148. A railroad company entered into a con- tract with certain parties for the transfer of their passengers and freight across a river. Held, that such contract was assignable with the consent of the company, and that the assignment was good consideration for a note given therefor ; but that where the note was afterward sued on the makers might se. up as a defense that the company had re- pudiated the assignment : but where such defense is denied by a replication, it is error to take judgment without proofs. Early v. Kced, 60 Mo. 528. Where a contract provides that payments equal to eighty-live per cent of the contract value of the work to be done were to be made monthly, and that fifteen per cent of the contract value of the work done each month was to be retained and paid within ninety days after the entire completion of the work — held, that the retained percent- age became a separate and distinct demand which could be assigned. Adler v. Kansas City, S. &* M. R. Co., 92 Mo. 242, 10 West. Rep. 333, 4 •§■. W. Rep. 917. — Applying Union R. & T. Co. v. Traube, 59 Mo. 363. 2. Causes of action on contract.* — A right of action against a common car- rier for injury to goods while in course of transportation is assignable. Norfolk &* VV. R. Co. v. Read, 87 Va. 185, 12 S. E. Rep. 395- A claim against a common carrier for loss of goods in transit is a cause of action aris ing on contract, and is assignable. Watson V. Hoosac Tunnel Line Co., \ 3 Mo. App. 263. The right of action against a railroad company, as a common carrier, for negli- *Assignment of right of action against carrier for injury to goods, see 45 Am. &. Eng. R. Cas. 373 abstr. gence in failing to safely carry or deliver goods is assignable, and the assignee may sue in his own name, the action being in the nature of one for the conversion of personal property. Smith v. Ne^v York &* A'. H. R. Co., 28 Barb. {N. K.) 605, 16 Ho^v. Pr. 277. A right of action against a common car- rier to recover tlie value of property en- trusted to him is assignable, and the as- signee may sue in his own name. Merrill V. Grinnell, 30 N. Y. 594. 3. Causes of action in tort,*— A right of action arising from a tort to property is assignable under the Code. Snyder v. Wabash, St. L. <3- P. R. Co., 29 Am. (S- Eng. R. Cas. 237, 86 Mo. 613.— Reviewing Butler V. New York & E. R. Co., 22 Barb. (N. Y.) no. Distinguishing Cable v. Marine R. & D. Co.. 21 Mo. 133; Burnett V. Crandall, 63 Mo. 410.— Followed in Doering v. Kenamore, 86 Mo. 588. The provision of the act of Congress of 1875, to the effect : " Nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless the suit might have been prosecuted in such court to recover therecjn, if no as- signment had been made, except in cases of promissory notes, negotiable by the law merchant and bills of exchange," does not change the common-law rule as to the as- signment of causes of action based upon torts. Northern Ins. Co. v. St. Louis &• S. F. R. Co., 5 McCrary (U. S.) 126, 15 Fed. Rep. 840. All such rights of action for a tort as would survive to the personal representa- tives of the party may be assigned so as to pass an interest to the assignee, which he can assert in his own name in a civil action under the Code, as he formerly might do in the name of the assignor at law. Applied to an action for killing an ox. Butler v. Ne7v York &* E. R. Co., 22 Barb. {N. Y.) 1 10. —Approved in Galveston H. & S. A. R. Co. V. Freeman, 57 Tex. 1 56. Reviewed in Snyder v. Wabash, St. L. & P. R. Co., 29 Am. & Eng. R. Cas. 237, 86 Mo. 613. Under the New York statute the right of action against a corporation for personal injuries is not assignable, unless it is where the injury affects the estate of the party rather than the person. Hodgman v. West- ''^ Assignability of cause of action for personal torts, see note, 14 L. R. A. 512. m ASSIGNMENT, 4,5. 477 ern X. Corp. 7 Hcnv, Pr. (N. V.) 492-— Quoted in Galveston, H. & S. A. R. C6. v. Freeman, 57 Tex. 156. The rule of law that a cause of action founded on injuries to the person is not assignable has not been altered by the Code of New York. Purple v. Hudson River R. Co., \ Abb. Pr. {N. Y.) 33. 4 Duer 74. A right of action for an unliquidated, un- recognized claim, arising ex delicto, such as a claim against an express company for loss of goods intrusted to it, is not assignable so as to enable the assignee to sue in his own name. Thurman v. IVclls, 18 Barb. (N. Y.) 500. The right of action against a railroad company for killing stock may be assigned, and the assignee may sue in his own name. (McFarland, J., dissenting.) East Tenn., G. &• V. R. Co. v. Henderson, i Lea {Tenn.) i. A right of action against a railroad com- pany, under the Indiana statute, for killing stock where the road is not fenced, is as- signable, though the statute says that the " owner " must make complaint, and that the "owner" may sue, etc. Louisville, N. A. &* C. R. Co V. Goodbar, 13 Am. 6- Eng. R. Cas. 599, 88 Ind. 213. Under Iowa Code, § 1289, a claim against a railroad company for killing stock on its track is assignable, and, if not paid within thirty days after notice by the assignee, as required by statute, he may recover double damages, just as his assignor might have done. (Reed, J., dissenting.) Everett v. Central Iowa R. Co., 31 Atn. 6^ Eng. R. Cas. 550, 73 Iowa 442, 35 N. IV. Rep. 609. A right of action against a railroad com- pany for negligently starting a fire and de- stroying property is assignable. Fried v. New York C. R. Co., 25 How. Pr. (A^. K) 285, I Shelden i. A right of action in a pending suit against a railroad company for negligently setting fire to plaintiff's property may be assigned in whole or in part, and the suit continued to be prosecuted in assignor's name for benefit of assignee. Tyler v. Ricamore, 87 Fa. 466, \2S.E. Rep. 799. An employe sued a railroad company to recover for personal injuries, and compro- mised the suit before judgment and signed a release ; whereupon his attorneys inter- vened, claiming that they were prosecuting the suit for an interest in the damages, which had been assigned to them, and deny- ing the right of their client to release their portic 1. //(f/ir/, that the cliciit'.s unliquidated claim for dan^agcs could nov be assigned. Stewart v. Houston &^ T. C. R. t^o.,62 Tex. 246.— Following Galveston, H. & S. A. R. Co. V. Freeman, 57 Tox. 156. 4. Ciaiiiis of laborers.— A railroad laborer cannot assign wages which are not then earned, northc contract of service then made. Lehigh Valley R. Co. v. W'oodring, 116 Pa. St. 513. f)Atl. Rep. 58.— FOLLOWING Jermyn v. Moflitt, 75 Pa. St. 402. Under Maiisf. Ark. Dig. § 473, making all agreements and contracts in writing for the payment of money assignable, a mere memorandum of accounts given to railroad laborers, and only intended as information to theroad-master in auditing such accounts, cannot be said to be a written agreement, and therefore is not assignable. St. Louis, I. M. &* S. R. Co. V. Camden Bank, {ArJb.) i.S. fV. Rep. 704. An assignment of a portion of the wages of a railway employe may be made, and the courts will recognize and protect the equit- able interest of the assignee. L>ean v. St. Paul &• D. R. Co., 53 Minn. 504, 55 N. W. Rep. 628. The N. Y. act of 1871, ch. 609, § 4, made it the duty of railroad companies to station flagmen at certain highway crossings, and upon a failure of the company to employ such flagmen it became the duty of the highway commissioners to appoint them, their compensation to be paid by the com- pany. Held, that the compensation or wages earned by such flagmen, appointed by such commissioners, is assignable. Stoothoff v. Long Island R. Co.. 32 Hun (N. K) 437. Time-checks issued to laborers by a con- tractor for labor in building a railroad are assignable, and carry witli them the statu- tory lien on the road, which msiy be enforced against the same. Texas &» P. R. Co. v. McMullen, i Tex. App. (Civ. Cas.) 64. 5. Corporate bonds. — The bond of a corporation, made payable to the obligee or his assigns, is not negotiable so as to enable the holder to sue at law in his own name, without an assignment, under the Pa. act of May 28, 1715, providing that assignments of bonds payable to order or assigns shall be under hand and seal, and before two wit- nesses. Bunting v. Camden Gr' A. R. Co., 81 Pa. St. 254, 15 Am. Ry. Rep. 370.— DISTIN- GUISHING Licey 7/. Licey, 7 Pa. St. 251 ; Carr 7'. Le Fevre, 27 Pa. St. 413. ! 478 ASSIGNMENT, 0-13. 6. Corporate franchlf-e.— The provi- sion of tlic California constitution that "corporations may be formed under general laws, but sliall not be created by special act," does not prevent a legally organized corpo- ration from assigning its franchise. People ex rel. v. Stanford, 77 Cat. 360, 18 Pac, Rep. 85, 19 Pac. Rep. 693. 7. Kailroad tickets.*— A commutation mileage ticket is not an " instrument," with- in the meaning of Iowa Code, § 3086, provid- ing that wlien " by the terms of an in- strument its assignment is prohibited, an assignment of it shall, nevertheless, be valid ; " and where such ticket is issued " not transferable," on its face, a person riding on it, not the one to whom it is issued, does not sustain the relation of a passenger so as to entitle him to recover for injuries. Way V. Chicago, R. I. &* P. R. Co., 64. Iowa 48, 52 Am. Rep. 431, 19 A^. W. Rep. 828. 8. Subscriptions to stock.— A cor- poration may assign a subscription to its capital stock, or the amount unpaid thereon. Racine County Bank v. Ayres, 12 IVis. 512. — Following Downie v. Hoover, 12 Wis. 174; Downie z'. White, 12 Wis. 176. O. Verdicts and judgnicntSt — A judgment recovered in an action for a tort against a railroad for a personal injury is not assignable before it has been rendered or entered up, although a verdict has been returned upon which judgment can be and is afterwards signed. The plaintiff acquires title, not by the verdict, but by the judg- ment, and until its rendition he has no title to assign ; until then his action for the tort is not terminated, but is still pending and in progress. Gamble v. Central R. &• B. Co., 80 Ga. 595, 7 S.£. Rep. 315. II. WHO MAT ASSIGN, AND HOW. 10. Corporate ofiScers. — The power of a corporation to assign a cause of action cannot be questioned by the defendant in an action thereon by the assignee. Small v. Chicago, R. I. &• P. R. Co., 55 Iowa 582, 8 A'^, W. Rep. i^yj. A writing recited, " for value received we assign to M. any claim or cause of action we may have * * * under the contract with " a certain railroad named, and was signed by the president and secretary of the company as such, and had the corporate seal at- * Assignability of railroad tickets, see note 18 L. R. A. 55, tached. Held, that, notwithstanding the use of the word "we," it sufficiently appeared that the officers were acting for the cor- poration, and that the writing was its deed. Musser v. Johnson, 42 Mo. 74, 11. Consolidated company. — A plaintiff who declaies upon an assignment of his claim to him by a consolidated rail- road company must fail if lie does not show that the statutory conditions to consolida- tion were substantially observed. Rodgers V. IVells, 44 Mich. 4ri, 6 A'. IV. Rep. 860. One who declares upon a claim held under an assignment from a consolidated company cannot recover on proof merely that it was assigned by one of the constituent com- panies to his assignor. Rodgers V. IVells, 4^ Mich. 411, 6 N. IV. Rep. 860. 12. Assignment by delivery of snb- ject-matter.— Certain parties interested in procuring a railroad entered into an agree- ment that they would pay certain specified sums to any company that would build a railroad, and placed this agreement in the hands of their agents to negotiate with, and deliver the samelo, any com| any that might undertake to build the road. Held, that the interest in such contract passed by a deliv- ery to a company agreeing to build the road, and that no formal assignment was neces- sary to enable such company to sue thereon. Cedar Rapids &• St. P. R. Co. v. Stewart, 25 Iowa 115. m. VALIDITT, INTEBFBETATIOH, AND EFFECT. 13. Validity.— An agreement by a rail- road company to pay for work in bonds issued for stock subscribed by a county, where the persons agreeing to receive them have full knowledge of the terms upon which they were issued, is not an assignment of the bonds, or placing them in the hands of third parties, so as to prevent an order declaring them cancelled. Mercer County v. Pitts- burgh 6^ E. R. Co., 27 Pa. St. 389. Where a claim for damages for personal injuries caused by the negligence of a rail- road was assigned, the court, without decid- ing whether the assignment and a collateral agreement were champertous, held tl at, even were they champertous, the defendant company could not plead that fact to defeat the action, it being a stranger to the con- tract and not injuriously affected by it. Vimont v. Chicago &* N. IV. R. Co., 19 Am. ' ASSIGNMET^T, 14-1«. 479 6* Ettg. R. Cas. 213, 69 Iowa 296, 22 A'. IV. Jiep. y)6, 28 A^. W. Rep. 613. An employ^ of a railroad company as- signed his wages, using a printed form in which the names, amounts, and dates were left blank, with an agreement that the as- signee should fill the blanks whenever nec- essary. Held, that the assignment of the wages and the authority to till in the blanks constituted a valid assignment and contract within the statute of frauds, and that the assignee could recover said wages. Cole v. New York. L. E. (S- W. R. Co., 37 Hun {N. y-) 394. The appellant, who had sustained bodily injuries in a collision on a railroad, assigned his claim for damages therefor to an attor- ney for $330, who was to prosecute the claim, and did so successfully. The amount event- ually recovered against the railroad com- pany was $4000. Held, (i) that the assign- ment, as to the excess beyond reasonable compensation to the attorney for his services, was void as to appellant's antecedent judg- ment-creditors ; (2) that a receiver appointed under an unsatisfied execution issued on the judgment of such creditors could maintain a suit in chancery to avoid the assignment. Colgan v. Jones, 44 N. J. Eq. 274, 18 Atl. Rep. 55. 14. How construed. — A contractor, entitled to money under a contract with the S. & M. R. Co., made an assignment of the same by a written notice and statement ad- dressed to " George H. Nettleton, president and manager of K. C, S. & M. R. R." It appeared that Nettleton was the president of both corporations, and that the S. & M. Railroad was known by the name of the Kansas City, S. & M. Railroad, as well as by its own name, and was managed by the same chief officers. Held, that it was competent for the trial court to apply the assignment to its proper subject-matter by disregarding the letters " K. C." in the description of Nettleton's office. Adler v. Kansas City, S. &» M, R. Co., 92 Mo. 242, 10 West. Rep. 333, 45. W. Rep. 917. 15. What will pass by an assigrn- ineut. — Where goods while in transit are damaged and sold by the carrier, the assignor may assign all his interests in the goods, and such assignr:"**nt will convey a valid right of action to the assignee. Waldron v. Willard, 17 N. Y. 466. Whether an assignment of the accruing profits of a railroad attached to an incorpo- rated railroad and banking company, by the corporation, be not also an assignment of the estate on which the road is built, to the 4. :tent of the assignment of the profits of the roal, quaref Arthur v. Commercial &* R. U 'Ilk, 17 Aliss. 394. PlaintitI sued as assignee of a passenger whose baggage was lost while travelling on a through ticket. The assignment was of all his claim against one of the intermediate lines. The suit was against the initial car- rier. Held, that the assignment would not support the action. Talcott v. Wabash R. Co., 50 N. Y. S. R. 423, 66 Hun 456, 2i N.Y. Supp. 318. 10. EflPect.— Where a party conveys a part of Ills land, after a railroad is located over it, the right to the whole damages is in him ; and where his deeds contain covenants against incumbrances, the remedy of his vendees is by action of covenant under the deed, and persons taking an assignment of only the right that the vendees have to damages for land taken by the railroad cannot maintain an action against the vendor to recover a part of the damages that have been awarded to him. NewYork&* N.E.R. Co. V. Drury, 10 Am. &^ Eng. R, Cas. 518, 133 Mass. 167. It will hardly do to affirm that a railroad, a citizen of Iowa, may enter into a contract with a citizen of New York, and, after in- curring liability thereunder, may, for the purpose of defeating the jurisdiction of the federal courts, assign such contract, or his right of action thereon, to another citizen of New York, with an agreement that the latter shall prosecute the suit to judgment, pay the costs and expenses, and theiv pay the balance to the assignor, who is to remain the real litigant. Goodno70 v. Litchfield, 4 McCrary {U. S.) 215. A ferry company contracted with a railroad company to furnish the latter with grounds for a depot, in consideration that it would give the ferry company the ferrying of all goods required to be transported across a river at that point. There was a provision in the contract authorizing its assignment to another company, and stipulating that all its covenants should be binding on the assignee, it being understood at the time that it was procured with a view to such assignment. Held, that the assignee was bound by the stipulation, and was liable to be sued for a breach of stich covenants. Wiggins Ferry Co. v. Chicago &* A. R. Co., 1 ifif 480 ASSIGNMENT, 17-20. 5 Atn, &* Eng. A'. Cos. i, 73 Mo. 389, 39/lw. Hep. 519; revtrsing 5 /l/o. /4//. 347, IV. BIOHTS AND BEMEDIIB OF THE ASSIGNEE. 17. ItlKlitH ut' UNHigaue, generally. — The assifjnec of a judgment against a railroad company acquires only the right of tlie judgmenl-crediior as against tlie com- pany. Butler V. Rahm, 46 Md. 541, i8 Am. Ky. Rep. 86. 18. ot'aNHigiict; of labor claiiiiH. — The assignment of labor claims invests the assignee with all the rights the labor "rlaimants themselves would have had if their claims had not been sold and assigned. Huntingdon »S- B. T. R. Co.'s Appeal, (Pa.) 6 Atl. Rep. 383. 10. Notiuo to debtor of the assigii- iiieiit. — The assignee of an employe of a railroad company presented an assignment of wages to the head officer of the trans- portation and freight department of the company at one end of the line where the en)ploy6 was hired but not paid. When presented, said officer told the assignee that if the claim was sent to the head office the employ^ would lose his position, whereupon the assignee took the claim away. Held, that it was error to instruct the jury, in an action on the assignment, that these facts constituted actual notice to the company of the assignment as a matter of law. Corbett V. Fitchburg R. Co., wo Mass. 204. 20. When assignee may sue in his own name.— The assignee or equitable owner of a chose in action may sue in his own name. Galveston, H. &* S. A. R. Co. v. FreenKin, 57 Tex. 156.— Reviewing Sublett V. McKinney, 19 Tex. 438.— Followed in Stewart v. Houston & T. C. R. Co., 62 Tex. 246. The assignee of a claim against the re- ceiver of a railway company, having ob- tained permission from the proper court, may, under the Code, bring suit in his own name, and though the assignment be in- dorsed to another, he may still maintain the action in his own name so long as he retains possession of the instrument of assignment, and may cause ■ the record to be amended by adding the name of the indorsee as the use party, who will thereafter be entitled to control the proceedings, and will be bound by the judgment. Jackson v. Hamm, 14 Colo. 58, 23 Pac. Rep. 88. The assignee of a claim for damages for por.sonal injury may maintain an action thereon. Hawley v. Chicago, li. &* Q. R. Co., 71 /owa 717, 29 N. \V. Rep. 787.— Foi,- LOWING Viniont v. Chicago & N. W. R. Co., 64 Iowa 513, 69 Iowa 296. A party to whom a claim for damages for personal injuries caused by the negligence of a railroad company in Iowa has been as- signed, may maintain an action thereon in the courts of this state, although such assignment was executed and delivered in another state, by the law of which it would be void. Viinont v. Chicago Sf N. W. R. Co., 19 Am. &^ Eng. R. Cas. 213,69 /owa 296, 22 A'. W. Rep. 906, 28 N. VV. Rep. 612. Where the judgment superseded was as- signed, with an agreement that the proceeds should be paid to several parties, and the assignee has a beneficial interest in the judg- ment, he may, when a liability arises on the undertaking, bring an action thereon in his own name, without joining with him all the parties who are to receive a part of the pro- ceeds of the judgment, and for whose benefit the action is in part prosecuted. IValburn v. Chenault, 43 Kan. 352, 23 Pac. Rep. 657. —Reviewing St. Louis, Ft. S. & W. R. Co. V. Tiernan, 37 Kan. 606. The assignee of a claim against a railroad company for negligently killing a horse may maintain an action in his own name under Miss. Code 1880, § 1507, providing that an assignee of a chose in action may sue in his own name. Chicago, St. L. iS- A'. O. R. Co. v. Packwood, 7 Am. &• Eng. R. Cas. 584, 59 Miss. 280. If the interest of one of a company which has contracted to do a work for hire be as- signed, with the assent and concurrence of the company, to another, to whom also a portion of the work and of the expected compensation is by them allotted, and upon the completion of the work the stipulated price is paid to the company, it is liable to such assignee in an action for money had and received; and it is the same whether the assignee derives his interest in the con- tract directly from the original party or through a mesne assignee. Frost v. Reed, 30 N. H. 17. Under such circumstances he may main- tain the action without first exhibiting the written assignment, although requested to exhibit it, n: ciaim having been made by the intp.mtdiate assignee. Frost v. Reed, 30 N. .:-{. 17. Actions for damages which survive to the ) ASSIGNMENT, 21-26. 481 r ' personal representative arc assignable. So an assignee is tiic n-ui party in interest, and it is immaterial wlietljcr or not any consid- eration was paid for the assignment, or wlictlier or not tlic assignment was merely for the purpose of bringing a suit. Wines V, Rio Grande \V, R. Co., 9 UiaA 228, 33 Pdc: Rep. 1042. The assignee of a railway bond is the proper party to sue thereon under Com- panies Clauses Act, 8 A 9 Vict. c. 16, § 46, Vertue\. lui.st Ani^lian R. Co., G Railiv. Cas. 252, 5 Exch. 208, I L, M. &* /', 302, 19 L. J. Exclt. 235. Claims against a railroad company, ^rising under the Missouri act of Feb. 24, 1853, en- titled " An act to authori/c the formiition of railroad associations and to regulate the same," were assigned with power to the as- signee to collect them in his own name. The assignee was to pay all costs, re- ceive one-fourth of the amount of the claims, and pay the remainder to the as- signor. Held, that the assignee might sue on the claims in his own name. Peters v. St. Louis &* I. M. R. Co., 24 Mo. 586. A cause of action for the obstruction of a navigable river was assigned absolutely in consideration of the assignee applying the net proceeds of the claim to the payment of certain debts of the assignors, and paying any overplus to such assignors. Held, that the assignee might maintain the action in his own name. Gates v. Northern Pac. R. Co., 64 Wis. 64, 24 N. W. Rep. 494. 21. Assiffiiur, wlicn a necessary party. — Where a claim against a railroad for personal injuries is assigned without recourse, the assignor has no further in- terest in the matter, and is not a necessary party in a suit thereon. Vimont v. Chicago 6r* N. W. R. Co.. 13 Am. &> Eng. R. Cas. 176, 19 Am. &* Eng. R. Cas. 215, 64 Iowa 513. 21 N. W. Rep. 9. 22. Pleading in suits by assignees. — A complaint, against a railroad company, which alleges that the company's contractors issued checks to their workmen, which plain- tiff cashed and took an assignment of at the special instance and request of the com- pany, and upon a promise that it would re- nay plaintiff the money, shows a good cause of action. Ware v. Galveston, H. 6^ S. A. R. Co., 2 Tex. App. {Civ. Cas.') 648.— Dis- tinguishing Austin & N. W. R. Co. v. Rucker, 59 Tex. 587. Plaintiff bought property after a railroad I D. R. D.— 31. had been built in the .street adjoining it, and sued as assignee to recover damages to the property caused by the erection and opera- tion of the road before liis purchase, and united a further claim for damages after the purchase. //<•/(/, that under the Ohio Code he could sue as assignee in his own name, and unite the claims; but that as there were two causes of action, each must be set out in a separate count. Hall v. Cincinnnti, H. &• D. R. Co., I Disn. (Ohio) 58. 2;). Wlieii asHlKnccN ronieily is agniiist aNHignor only. -A construction company assigned, wit'; the consent of the railway company, its contract to build the road, The assignee was protected by cer- tain 6 percent mortgage bonds of the rail- way cf)mpany deposited with a trust com- pany. There was a stipulation that the 6 per cent bonds should not be paid until certain 7 per cent bonds of a prior issue had been paid by the railway company. This the company failed to do. Held, that the remedy of the assignee, if any, was against the assignor. Appeal of Kelly, {Pa) 12 Atl. Rep. 256. 24. Extent of aN.si|;iiec'8 recovery. — Insured cotton was lost by the negligence of a railroad company while in its hands, and the owners assigned their interest to the insurance company. Held, that the insur- ance company, as against the carrier, was entitled to recover the value of the cotton at the time of the loss, with interest from the time it should have been delivered if properly carried. North American Ins. Co. V. St. Louis, I M. &* S. R. Co., 3 McCrary {U. S.) 233, II Eed. Rep. 380. V. EQUITABLE A88IORHENT. 25. What amounts to an equitable assignment.— The keeper of a boarding- house for railroad employfes made an agree- ment with the railroad company whereby the boarding dues of each employ^ were deducted from his pay and forwarded in the form of a check to the boarding-house keeper each month. Subsequently he pro- cured an advance of money from a bank on the credit of the amounts which were to fall due on the following pay-day, and by promising to turn such amounts over to the bank. The railroad company consented to transfer such payments to the bank. Held, that this constituted an equitable assign- ment of such sums, so as to vest title in the bank as against a creditor of the boarding- il'ii*" m 482 ASSIGNMENT FOR BENEFIT OF CREDITORS, 1. I k 9 I house keeper, who garnished the same in the hands of the railroad company. Cham- ber lin V. Gilinan, lo Colo. 94, 14 Pac. Hep. 107. Subsequent declarations of the boarding- house keeper, indicative of an intention to set apart such sums to the payment of his debt to plainiifl in garnishment, are not ad- missible in evidence to impeach the title vested by prior assignment. Chamberlin v. Gilman, 10 Colo. 94, \^Pac. Rep. 107. The mere fact that the railroad company, after it had consented to the transfer of the indebtedness to the bank, continued to draw its check in favor of the boarding- house keeper was held not to divest the bank of the title acquired under the equitable as- signment. Chamberlin v. Gilman, 10 Colo. 94, 14 Pac. Rep. 107. Whether the railroad company had notice of such assii^nment in no way affects the rights of plaintiff in garnishment, and there- fore the admission of evidence of such notice is not prejudicial error. Chamberlin v. Gil- man, 10 Colo. 94, 14 Pac. Rep. 107. A. J. A. was a subcontractor under J. F. to build certain sections of a railroad, which work he again sublet to H., L. & L., who were performing said work. Upon the completion of said contract said J. F. would be indebted to A. J. A. $2413.27. H., L. & L. filed a statutory lien on said railroad for their work and labor in building said sec- tions thereof. W. R. C, in the presence of A. J. A., presented for acceptance and payment to J. F. a draft or order drawn by A. J. A. on J. F., in favor of and payable to W. R. C, for the sum of $1041.50 in full of all claims. Whereupon J. F. stated to A. J. ^., in the presence of W. R. C, that he would not pay it until all the liens for la- bor on said se'^t ions were settled and paid off. N. G. O. C. sued out an attachment against A. J. A. and garnished J. F. Held, that there was an equitable assignment and appropriation of the money payable from J. F. to A. J. A., to W. R. C. , to the amount called for in said draft or order, subject to the said statutory liens. Code v. Carlton, 18 Neb. 328. The judgment-debtor, through his sub- contractors, delivered to the garnishees cer- tain railway ties, and gave the subcontrac- tors an order on the garnishees for all money coming to him therefor. Subse- quent to this, but before the garnishees had any notice of the above order, they were served with the'aitaching order in this case. Held, that the order in favor of the subcontractors operated as an assign- ment of the fund' to tiiem, although there was no notice of- it to the garnishees, they not having been led by the want of notice to alter their position so as to make it in- equitable as against them to enforce the as- signment. Brown v. McGuffin, 5 Prac. (Ont.) 231. — Quoting Pickering v. Ilfra- combe R. Co., L. R. 3 C. P, 235. 20. What does not.— In order to con- stitute an equitable assignment by a debtor to his creditor of a sum due to the debtor from a third person, it is not enough that there be an agreement to pay the creditor out of the particular fund, but there must be an appropriation of the fund, either by giving an order upon it or by transferring it in such a manner that the holder would be authorized to pay it to the creditor directly, without the further intervention of the debtor. Hoyt v. Story, 3 Barb. (N. V.) 262. Where a railway company and its con- tractors agreed with a subcontractor that, in consideration of his furnishing laborers' board, the amount due for their board should be taken out of their wages and be due to the subcontractor and should con- stitute a lien upon the road, the laborers not being parties to such an agreement, there was not such an assignment of the claim as would give the subcontractor a laborer's lien. Texas &> St. L. R. Co. v. McCatighey, 62 Tex. 271. To show that the subcontractor was sub- rogated to the rights of the laborers there must appear to have been an extinguish- ment of the original debt ; and to create an equitable assignment in this case the debt must have been purchased of the laborers for a consideration satisfactory to them. Texas &• St. L. R. Co. v. McCaughey, 62 Tex. 271. ASSIGNMENT FOR BENEFIT OF CREDITORS. See also Bankruptcy, Insolvency, Receivers. 1. What constitutes an assignment for creditors— Recording. — The lease of a railroad reserving rent in trust for the benefit of the creditors of the lessors is an assignment, within the meaning of the act of March 24, 18 18, and must be recorded l\ ASSIGNMENT P'OR BENEFIT OF CREr3ITORS, 2-4. 483 / ', J\ within thirty days in the proper county. Lucas ". Sunbury &* E. R. Co., 32 Pa. St. 458.— UIST.INGUISHJNG Guy V. Mcllree, 26 Pa. St. 92.— Distinguished in Gratz v, Pennsylvania R. Co.. 41 Pa. St. 447. An assignment by a railroad company of unpaid instalments due on subscriptions'to capital stock to an indorser, to secure him. against loss by reason of his indorsement for the company, is not an assignment in trust for creditors, and therefore is not in- valid because not recorded, nor an inventory filed wi' bin thirty days thereafter. Mc- Broom's Appeal, 44 Pa. St. 92. 2. Preler'cnces. — One railroad com- pany made a lease to another which was declared but an assi!»nment for the benefit of creditors, with preferences. A preferred creditor who had a claim against the road .'or rolling stock continued to work for the assignee company upon the promise of its president to pay him, and upon its failure to do so brought his action of assumpsit, claiming that the company had received profits enough to pay his claim. Held, that as the promise of the president was nothing more than to carry out the preferences made in the lease, which was void under the law, his action could not be maintained. Bittenbender v. Sunbury &* E. R. Co., 40 Pa. St. 269. 3. Validity, generally Though the act incorporating the New York and Erie Railroad Company, § 18, expressly refers to and adopts the provisions of the Rev. St. ch. 18, title 3, pt. I, it is not to be construed as exeiT^pting the company from the provi- sions of the same chapter, title 4 ; therefore an assignment by the company of its prop- erty in contemplation of insolvency is void. Bowen v. Lease, 5 Hill (N. Y.) 221. Subcontractors who had no claim against the company until nearly a year after the assignment was made cannot allege that it is invalid, under the act of 21st Jan., 1843, providing that no public internal improve- ment company shall make an assignment, etc., of real or personal estate, while debts or liabilities to contractors, laborers, and workmen remain unpaid, without first ob- tainmg their written consent. McBroom's Appeal, 44 Pa. St. 92. Where an assignment was made by an in- corporated railroad and banking company of all Its efTects, real and personal, to trustees, for the purpose, first, of enabling them to borrow money to complete the road ; and, second, out of the profits of the road when completed, to pay, first, the money borrowed, then the salaries of the assignees, the expenses of the trust, the bank, and the railroad, and the residue to the general creditors who might come in under the assignment - the leading object of the as- signment being to save the forfeiture of the charter of incorporation, which provided that the act of incorporation should be null and void if the road were not built in a lim- ited time. Held, that if the assignment were otherwise obnoxious to the law this motive would not avail to sustain it, as the charter of incorporation, by a failure to erect the road in the limited period, would not ipso facto have been avoided, nor until the state, by proper judicial proceeding, had obtained a judgment of forfeiture. Arthur v. Commercial &• R. Bank, 1 7 Miss. 394. 4. When void for fraud.— An assign- ment by a railroad in trust to sell part of the property assigned to pay for advances, and to retain part of it, subject to the future order of the assignor, is intended only as a cover to keep of! execution creditors, and has premeditated fraud on its face. Hart v. McFarland, 13 Pa. St. 182. An assignment, by a railroad corporation actually insolvent, of all its estate for the se- curity of certain bonds to be afterward issued for the purpose of raising money to put a portion oi the road in use, is not \o\dkper se, although it provides that the estate shall be retained by the corporation until maturity of the bonds, and then sold in case of default for the benefit of the holders of the bonds, and afterward of its creditors generally, who shall prove their demands, etc.; but the deed is imperative as a security, unless the bonds are actually issued to bona-fide cred- itors before the lien of other creditors at- taches or the property is conveyed either by judgment or execution, as the estate is real or personal. Allen v. Montgomery R. Co.,\i Ala. 437. The circumstances that the corporation is actually insolvent at the time of making such a deed, and that all the estate conveyed by it is afterward sold in a lump by the trn.stee and does not produce a sum suffi- cient to p:iy the bondholders, is not suffi- cient proof of fraud to avoid the deed ; nor does the fact that the deed reserves the prop- erty from sale prevent any execution creditor from sellmg the reversionary interest of the corporation at any time previous to the liiw % k 484 ASSIGNMENT FOR BENEFIT OF CREDITORS, 5, 6. I h day of the deed. A/Zen v. Montgomery R. Co., 1 1 Ala. 437.— Followed in Pollard v. Maddox. 28 Ala. 321. A company organized to do a railroad and banking business made an assignment of ail its bank effects, directing the trustees to borrow $250,000 to complete the road and to collect all claims, and from the assets in their hands to pay first the loan of $250,000. If there were not assets remaining sufficient to pay the bank creditors they were to be paid pro rata from dividends of the railroad after its completion. Held, that the assignment was fraudulent and void as to creditors not assenting thereto. Bodleys. Goodrich, 7 How. {U. S.) 277. Where an incorporated railroad and bank- ing company, in failing circumstances, made an assignment of a very large amount of real and person.il estate and choses in action, in- cluding the railroad, and imposed thereby various onerous and responsible duties on the assignees, and provided in the deed of assignment that each assignee should, out of the property assigned, receive an annual salary of eight thousand dollars, it was held that the amount of salary, though very large, and calculated to excite suspicion, was not necessarily fraudulent on the face of the assignment, but was a subject to be inquired into by proof. Arthur v. Commercial <&* R. Bank, 17 Miss. 394. Where an incorporated railroad and bank- ing company, being in failing circumstances, and by its charter owning in fee simple the site of the railroad and other buildings and lots attached to it, assigned by deed all its real and personal estate to assignees to pay therewith and out of the profits of the rail- road, when completed — it being then unfin- ished — a certain debt to be contracted by the assignees for the completion of the road, and all the expenses of the trust and of the corporation, and then the debts of the cor- poration; and no provision whatever was madf for the sale of the fee simple of the corporation in the site of the road and in the buildings and lots attached to it, and the as- signment of the profits of the road was in- definite in its duration, except that it was to last until the debts were paid, when the fee, with the road, was to revert to the corpora- tion — held, that the tendency of the assign- ment was to lock up the estate indefinitely, to create a perpetuity, to hinder and delay creditors unreasonably, and to secure an ultimate and permanent advantage to the corporation, and that the assignment was therefore void. Arthur v. Commercial &* R, Bank, 17 Miss. 394. — Approving Fellows v. Commercial & R. Bank, 6 Rob. (La.) 246. 5. Effect of the nssignnieiit, and what will pass thereby.— A claim against a railroad corporation for injury to the person does not, before the recovery of judgment, pass by an assignment of the estate of the injured person under the in- solvent laws. Stone v. Boston &• M. R. Co., 7 Gray (Mass.) 539. An assignment by one who holds certifi- cates of stock in a railroad company, "of all his estate and effects," for the benefit of creditors, is an assignment of everything he owns, and includes the certificates of stock. Haldeman v. Hillsborough &^ C. R. Co., 2 Handy (Ohio) loi. The assignee under a deed of assignment for the benefit of creditors, conveying, among other things, stock in a railroad com- pany, will be preferred to subsequent attach- ing creditors, though there is no transfer of the certificates to the assignee on the com- pany's books. Haldeman v. Hillsborough &» C. R. Co., 2 Handy {Ohio) loi. An uncompleted contract for the construc- tion of a railroad was assigned to creditors. The assignor then made an agreement with the plaintiff that he should complete the contract at his own expense and receive a certain compensation, The creditors drew an order on theassignt^ in favor of plaintiff for the amount expended by him on the work, and for a certain sum for his trouble. The work having been completed by the plaintiff — held, that the order became irrevo- cable, whether drawn before or after perform- ance of the work ; and that one of the cred- itors receiving a dividend out of the fund from the assignee was liable to the plaintif! in an action for money had and received. Cunningham v. Garvin, 10 Pa. St. 366. A mining company which has entered into an agreement with a railway company to furnish daily, for the period of one year, a specified quantity of coal taken from a par- ticular vein cannot assign the contract. If the mining company fails, its assignees in in- solvency cannot compel the railway com- pany to complete the contract. Warden v. Chicago 6- N. W. R. Co., 82 /oa/a 735, 48 N. W. Rep. 71. 6. Sale by assignee and ri^^hts of purchasers. —The Montgomery R. Co., having made a valid assignment of its road ASSUMPSIT, 1-3. 485 was and all its effects, the purchasers at the trus- tee sale, who were afterwards incorporated under a new name, acquired and succeeded to all the rights which the old company had under a deed conveying the right of way for tiie construction of the road. Pollard v. Maddox, 28 Ala. 321.— Following Allen v, Montgomery R. Co., 1 1 Ala. 437. ASSISTANT CONDUGTOB. See Conductor, 15. ASSUMPSIT. Ag^ainst conductor for not collecting fares, see Conductor, 8. 1. When assumpsit will lie.— Where a party agrees to do certain work in the con- struction of a railroad, to be paid partly in cash and partly in stock of the company, and does extra work for which he is entitled to be paid, the whole of the payment for the extra work is to be paid in money as upon an implied assumpsit. Childs v. Somerset &• K. R. Co., Brunner Col. Cas. {U. S.) 593. Where a right of way is conveyed to a company on condition that it will erect and maintain necessary crossings and fences, an acceptance of the deed and entering upon the land raises an implied contract, and upon the failure of the company to carry out the conditions of the deed the injured party may maintain assumpsit. Wtllenborg v. Illinois C. R. Co., ix III. App. 298. Where a debtor abandons his contract, and the owner, being indebted to the contractor for work done, pays the laborers, deducting what they owe A., then pays A., deducting what he owes B., all parties thus paid acced- ing to the arrangement, there is an implied undertaking on the part of the owner to pay B. the amounts thus retained, and B. has a right of action therefor upon the implied promise thus made for his benefit. Gibson V. St. Louis, K. C. M. R. R. Co., 14 Ohio 563. Assumpsit for money had and received will not lie to recover from a railroad com- pany an amount paid by plaintiff for freight on goods in excess of the rates the com- pany were by law entitled to exact; the payment having been made after the goods had been carried and delivered, and withi ut objection, protest, or notice of discontent. Kenneth v. South Carolina R. Co., 1 5 Rich. (S.Car.) 284. (2) Illustrations. — \ railroad company, of which both plaintiff and defendant were directors, transferred to the former, by reso- lution of the board of directors, a quarter's pay due from the Post-office Department on a contract for carrying the mail (which con- tract was in defendant's name), as collateral security for his indorsement of a note for the benefit of the company, which he subse- quently paid ; and afterward, by another resolution, transferred the same quarter's pay to defendant for the purpose of paying other debts, which defendant accordingly paid. Held, that plaintiff might maintain assumpsit for money had and received against the defendant, to the amount paid on the note. Sherrod v. Hampton, 25 Ala, 652. Plaintiffs paid their note to a railroad company before maturity in railroad bonds, but by an oversight failed to take up the note, which was negotiated before maturity, and they were compelled to pay it. After suit was brought against them and before judgment they instituted suit against the company for money paid and money had and received. Held, that, as the bonds were taken the same as cash in payment of the note, the action could be maintained. Con- necticut &* P. R. R. Co. V. Newell, 31 Vt. 364- The paymaster of a railroad paid the salary of one employe to another upon an order in favor of the party receiving the money, but he afterward discovered that lie had paid the same salary to the employe earning it at another place. Held, that the money could be recovered from the person holding the order, although the order was given before the payment to the person giving it, but where the company had no notice of it ASSUIylPSIT, 5, 6. 487 lulcr : law rt of d in- A". A\ until after such payment. Stebbins v. Union Pacific R. Co., 2 IVyom. 71. Plaintif! loaned money to the treasurer of a corporation, for the corporation, under the belief that he was authorized to borrow, but it appeared that under the by-laws of the company he and the president were author- ized to borrow and sign notes in the name of the company. The money borrowed was used in paying the debts of the corporation, but it appeared that the treasurer was a defaulter at the time, and that the money was used to cover up his defalcation by paying company debts created by reason of his former embezzlement. Held, that an action for money had and -'■"•ived would not lie against the corporation. Craft v. South Boston R. Co., 28 Am. &* Eng Corp. Cas. 579, 150 Mass. 207, 2 B^g. L. /. 276, 5 L. R. A. 641, 22 N. E. Rep. 920. 5. Pleading and evidence.— PlaintiiT sued to recover for services under a contract employing him as the general agent of de- fendant company for at least six months, or until a contract made on the same day by the defendant company with another rail- road company should be rescinded. Held, that it was not necessary for plaintiff to al- lege that the contract with the other com- pany still remained in force, such matters being proper for the defense. Kitchen v. Cape Girar dealt &* S. L. R. Co., 59 Mo. 514, 8 Am. Ry. Rep. 481. A railroad company appointed plaintifT their "permanent land com lissioner" and notified him of his appointment by letter with the corporate seal attached. He after- ward sued in assumpsit for a wrongful dis- missal. Held, that he could not set up the hiring as under seal in that form of action. Belch v. Manitoba &* N. IV. R. Co., 4 Man. 198. In assumpsit upon a promissory note, al- leged to have been made by the W. I. R. W. & C. Co. , payable to defendants, and indorsed by them to plaintiffs, a plea that the writing sued on is an instrument under the seal of the company and not a promissory note, or negotiable as such, is good on demurrer. The declaration is also good, as the court could not assume that the company was not authorized to make notes. Merritt v. Maxwell, 14 U.C. Q. B. 50. Where a party declares in assumpsit against a common carrier or bailee for hire, without regard to the bills of lading which he receives from the carrier for the trans- portation of goods, and which appear from their face to be special contracts, to the stipulations whereof both parties are equally bound, he cannot introduce the bills in evidence, they not being applicable to any of the counts in the declaration. Balti- more Qr'O.R. Co. V. Rathbone, i W. Va. 87. —Quoted in Kline v. McLain, 33 W. Va., 32. An action was brought against a railroad company to recover for services rendered. The plaintifT had been engaged in obtaining a loan for an investment company. The defendant sought to prove that the invest- ment company was the real owner of the railroad and that the plaintiff was estopped, by his representations to it, from making any claim for his services. Held, that as the investment company was not a party to the action, the evidence was inadmissible. Ten Eyck V. Pontiac, O. &• P. A. R. Co., 37 Am. &• Eng. R, Cas. 273, 74 Mich. 226, 41 A'. W. Kep. 905, 3 L. R. A. 378. Plaintiff sued to recover for services ren- dered under a contract with defendant cor- poration appointing him as its general agent. Held, that, after plaintiff had shown a contract to employ and pay him. it was not necessary for Iiim to prove a subsequent contract or agreement to pay him ; and that, after he had proven that he had once noti- fied the company of his constant readiness to perform the services contracted for, it was not necessary for him to show that from lime to time he gave further notice of his address and where notice would reach him. Kitchen v. Cape Girardeau &* S. L. R. Co. , 59 Mo. 514, 8 Am. Ry. Rep. 481. O. Quantum meruit.— In an action of quantum meruit for services rendered a re- covery is not warranted in the absence of evidence either of the reasonable value of the services or of a special contract fixing the rate of compensation. Sanfordw. Cape Girardeau &• S. W. R. Co., 40 Mo. App. 15. When, in the performance of a contract for work, its stipulations are deviated from by mutual agreement, the contract prices gov- ern, if applicable; but if the deviation re- lates to extra work not provided for in the contract, the party performing the work may recover on a quantum meruit. Houston, E. 6- W. T. R. Co. V. Snelling, 59 Te.v. 116. One who performs services for a railway company, under a special agreement that he siiould receive therefor an annual pass over defendant's road, may, upon refusal of de- fendant to give the pass, recover upon a quantum meruit for his services, as the ' 488 ASSUMPSIT, 7,8. I a 1 1 '1 1 k * value of such pass is impossible of proof or of estimation as a measure of damages. Brown v. St. Paul, M. &>• M. /?. Co., 36 Minn. 236, 31 A''. IV. Rep. 941. 7. Use and occupation.— (i) When action will lie. — Where a corporation has actually used and occupied land for a cor- porate purpose, by permission of the owner, it is liable for use and occupation, though there is no contract under seal. Lowe v. London &* N. IV. R. Co., tSQ.B. 632,17 Jur. 375, 21 L.J. Q. B. 361, 7 Railw. Cas. 524. Where a corporation occupying premises was a railway company, within the provision of 8 & 9 Vic. c. 16, Companies Clauses Act, § 97, authorizing parol contracts by the directors of a company, a parol contract may be presumed against the company in an action for use and occupation in the ab- sence of direct evidence to the contrary. Lowe V. London &* N. W. R. Co., 18 Q. B. 632, 17 Jur. 375, 21 Z. /. Q. B. 361, 7 Railw. Cas. 524. Although a corporation may be liable for use and occupation of premises, it can only be so for the period of actual occupation ; and a continuous occupation for several years will not render it a tenant from year to year. Finlay v. Bristol R. Co., 7 Exch. 409, 7 Railw. Cas. 449, 21 L./. Exch. 1 17. Where the tenancy was not for any definite period, the fact that the landlord commenced proceedings against the tenant railroad company to compel it to pay for the lot, which proceedings resulted in a sur- render of the possession to him, will not prevent his recovering for the use and occu- pation prior to the commencement of those proceedings. Vt'ittman v. Milwaukee, L. S. 6- :- ^ ..51 Wit. 89, 8 N. W. Rep. 6. :iiv.'< will not lie. — An action -psit will not lie for use and .' -'.J^\. of way over the plain- .oad when such holding has been autrtiie. McLendon v. Atlanta &* W. P. R. Co., 54 Ga. 293. Where there is a lease under seal, an aic- tion for use and occupation cannot be maintained, either against the lessee or his assignee; the action must be upon the demise to recover the rent reserved. JCter- sted V. Orange I. Co., 32 So. Car. 319, II 5. £■. Rep. 192, 638. Where the demand for which the action was brought arose upon written contracts for the payment of money made, executed, delivered, and made payable in Canada, and all the labor done and materials furnished were, under those contracts and upon work located in Canada, for a railroad created by the laws of Canada and existing there, ex- cept a small part, which was performed in New York by virtue of said contracts — held, not a case where the subject of the action was situated in New York ; and although the defendant (the forei.Tjn corporation) had property in this state liable to attachment, the attachment could not be sustained by a non-resident plaintiff. Campbell v. Cham- plain &• St. L. R. Co., 18 How. Pr. {N. Y.) 412. III. WHO MAY BE SUED. I . As principal debtor. 8. In general. — In an action to recover the sum of $45,000 and interest, as damages for the breach of an alleged contract to de- liver to plaintiff certain town bonds, an at- tachment may properly issue agiiinst a non- resident defendant. Clews v. Rockford, R. I. &• St. L. R. Co., 2 Hun (N. V.) 379, 4 3". » 5/. /. K. Co. v. Crane, 102 ///. 249,40 Am. Rep. 581.— Followed IN Fairbaiik v. Cincinnati, N. O. & T. P. R. Co., 54 Fed. Rep. 420,9 U. S. App. 212, 4 C. C. A. 403; Wai)ash R. Co. v. Dougan, 142 III. 248. A foreign corporation admitted to do business in the state of New Jersey, and owning property there, is not Uable to at- taciiment. PhilUpsburg Bank v. Lacka- wanna K. Co., 27 N.J. L. 206. In the absence of a statute giving the courts jurisdiction generally, a foreign cor- poration can be sued in Massachusetts only by attachment, Andrews v. Michigan C.R. Co., 99 Afass. 534. Under the Missouri Attachment Act of 1855 foreign corporations can only be pro- ceeded against by attachment where their chief office or place of business is out of the state. An attachment will not lie against a corporation that has its chief office or place of business in the state. Farnsworth v. Terre Haute, A. Cf St. L. R. Co., 29 Mo. 75. —Reviewed in Robb v. Chicago & A. R. Co., 47 Mo. 540. The Mobile and O. R. Co., a corporation created by the state of Alabama, by "an act to authorize the Mobile & O. R. Co. to extend their railroad from the south bound- ary line of the state of Kentucky to the Mississippi or Ohio river," passed by the general assembly of Kentucky, and ap- proved Feb. 26, 1846 (Sess. Acts, 1847-8, p. 344-5), had conferred on said corporation the right of extending the road through Kentucky; and the said act further pro- vided that said corporation "shall be en- titled to all the privileges, rights, and im- munities, and subject to all such restrictions as are granted, made, and prescribed for the benefit, government, and direction of said company as is conferred on it by the act of incorporation passed by the legislature of Alabama." In a suit in the Hickman cir- cuit court, in Kentucky, against said cor- poration to coerce the payment of some bonds issued by it, the plaintiff sued out an attachment against the defendant on the ground that it was a foreign corporation. The circuit court dismissed the attachment. On this appeal that judgment was affirmed. Martin v. Mobile O. R. Co. v. Gal- lahue, 12 Gratt. (Fa.) 655. ■X 49a ATTACHMENT; GARNISHMENT; TRUSTEE PROCESS, 12. I 3 i ill Under Wisconsin statutes officers <>{ a railroad company who liave money or property of the company in their possession are liable to garnishment. Everdell v. She- boygan &* F.dti L, R. Co., 41 Wis. 395. The Boston and Maine Railroad is a cor- poration in New Hampshire, amenable to the process and subject to the jurisdiction of the courts of the state, and answerable for funds collected for the principal defend- ants in another state, without any express stipulation as to the place of their payment. Smith V. Boston, C. &- Af. A\ Co., 33 A'. H. 337.— Followed in Littleton N. Bank t. Portland & O. R. Co., 58 N. H. 104. Where a railroad company contracts with a person that he shall furnish at a given sum per mile its right of way at his own expense, purchasing and condemning in the name of the company, the public and landowners are not bound to take any notice of the inter- mediate contractor ; as to them the com- pany is the only responsible party : and where a right of way had been condemned by the contractor and the award paid to the sheriff, but the landowner had taken an appeal, and the company had been gar- nished by a judgment-creditor of the land- owner — hM, that the contractor was bound to take notice of the garnishment, and that his payment of an additional sum to the landowner in settlement of the appeal, and for a deed for the right of way in question, did not exonerate the company from liability, as garnishee, to account for the additional sum so admitted to be due to the landowner, and that judgment in this case had been properly rendered against it as garnishee for such sum. Buchanan County Bank v. Cedar Rapids, I. F. 6- N. W. R. Co., 20 Am. 6- En^. R. Cas. 417, 62 Iowa 494, 17 A^. IV. Rep. 737. 12. Forelprii Corporations.— A rail- road company incorporated under the laws of another state, operating a railroad in Ohio with the assent of the legislature, is liable to the process of garnishment pre- scribed by the Ohio Civil Code, § 200; and such process may be served as upon domes- tic corporations. Pennsylvania R. Co. v. Peoples, 31 Ohio St. 537.— REVIEWING Mc- Gregor 7/. Erie R. Co., 35 N. J. L. 118. A corporation created by the laws of another state, but having an office in Massa- chusetts for its president and treasurer, where the principal business of the company relating to such offices is transacted, is lia- ble to be garnished, under the act of 1870, ch, 194, providing that non-rcsid' ts and corporations established by the laws of another state may be summoned as trus- tees if they have their usual place of busi- ness in this commonwealth. National Bank of Commerce v. Huntington, 129 Mass. 444. The fact of a receiver of a railway cor- poration being non-resident is immaterial, where the receiver is operat^ng a portion of the railway within the jurisdiction of the court issuing the garnishee process, and where the sum due the judgment debtor is payable. Phelan v. Ganebin, 5 Colo. 14. A foreign railroad corporation coming into Kansas and leasing and operating a line of railroad there may be garnished for a debt due to one of its employes, although such employ6 is not a resident of this state, and although the debt was contracted out- side of the state. Burlington &* M. R. R. Co. V. Thompson, 16 Am. (S>« Eng. R. Cas. 480, 31 Aa«. 180, 47 Am. Rep. 497, i Pac. Rep. 622.— Approved in Carson v. Memphis & C. R. Co., 88 Tenn. 646. A foreign railroad corporation that has accepted the privilege of extending its works through New York state, upon the condi- tion that it keeps at least one manager or other officer resident within the state, on whom process in actions against the com- pany may be served, may be made gar- nishee in an attachment execution, in respect to a debt owing by it to a non-resident. Fithian v. New York &* E. R. Co., 31 Pa. 5/. 114. A foreign corporation having no property of the debtor in Nebraska, nor owing money to him payable therei:., is not subject to garnishment in that state. Wright v. Chicago, B. 6- Q. R. Co.. 25 Am. <&- Eng. R. Cas. 427, 19 Nell. 175, 27 A'. JV. Rep. 90. Where a debt is contracted in Iowa, the parties residing there, and a creditor of the debtor is not subject to garnishment in that state, the exemption will continue in New Hampshire in case an action is brought on the claim. Wright v. Chicago, B. &• Q. R. Co., 25 Am.&*Eng. R. Cas. 427, 19 Neb. 175, 27 A^. W. Rep. 90. A foreign corporation cannot be charged by trustee process where it has no existence in Massachusetts except in the operation of leased roads. Gold v. Housatonic R. Co., i Gray {Mass.) 424. — Following Danforth V. Penny, 3 Met. (Mass.) 564. ATTACHMENT; GARNISHMENT; TRUSTEE PROCESS, 13-10. 493 ^;i 13. Uallway coniimny chartered in two states. — A railway cuinpaiiy doing business in Illinois und another state may be garnished in Illinois by a resident of such other state for a debt owing by such company to another resident of that state ; and the motives of the garnishing cred- itor seeking the collection of a just debt by means of remedies in Illinois are wholly immaterial. Wabash A\ Co. v. Dougan, 142 ///. 248, 31 N. E. Rep. 594; affirming 41 ///. App. 543. — Following Hannibal «S£ St. J. R. Co. V. Crane, 102 111. 249; Mineral Point R. Co. V. Barron, 83 111. 365. Re- viewing Drake w. Lake Shore & M. S. R. Co., 69 Mich. 168. A railroad corporation that owns and operates under one management a continu- ous line through Tennessee and two other states, having separate charters from each of the three states, — that obtained in Ten- nessee being the youngest,— is a resident and domestic corporation of Tennessee, and subject, as such, to be made garnishee in the courts of that state. Mobile 6- O. R. Co. v. Barnhill, 50 Am. &* Eiig. R. Cas. 646, 91 Tefift. 395, 19 S. W. Rep. 21. Holland v. Mobile &* O. R. Co., 16 Lea (Tenn.) 414. Such corporation is subject to garnish- ment, by a citizen of Tennessee, in the courts of that state, although the debt sought to be reached is due to a non-resident, and was contracted in one of the other states where the company is chartered. Mobile . — A passenger's route took him over the line of an Alabama rail- road, but starting from a point in (ieorgia and running through Alabama and back into (icorgia in a county dilTcrent from the •jne where he started. While the passenger was en route in Alabama an attachment was served upon the company's agent at the startitig-point in Georgia, attempting to at- tach the passenger's trunk. It did not ap- pear that the agent upon whom the process was served had any power to fli^posc of the trunk at the terminus of the route. Held, that the attachment did not bind the coni- panv. (Jackson, J., disscnti!l^,^) Western R. Co. V. Thornton, 60 (/(/. 300. -Appro vkd IN Bates V. Chicago, M. cSj St. P. R. Co., 14 Am. & Eng. R. Cas. 700, 60 Wis. 296. 22. BoiuIh. — Railroad bonds of a debtor, payable to bearer, are not attachable by process of foreign attachment in the hands of a third party holding the same ; and where certificates of stock of a foreign railroad corporation an* so held, the stock cannot be reached by either foreign or do- mestic attachment. T^ueedy v. Bogart, 56 Conn. 419, 15 Atl. Rep. 374. Bonds of a railroad company, not sold and negotiated, but merely pledged by it as collateral security, when discharged and surrendered are not properly of, the com- pany liable to be reached by garnishment against an officer of the company receipting for the same, but who in fact never received them. Galena 6f S. W. R. Co. v. Stahl, 103 ///. 67. Where the revenues and property of a railroad are mortgaged to secure outstand- ing bonds, and the revenues are insufficient to pay the interest on said bonds, they can- not be attached at the suit of ordinary creditors; and, if necessary, attachment or execution thereon will be restrained by injunction. Dunham v. Isett, 15 Iowa 284. — Not followed in Smith v. Eastern R. Co., 124 Mass. 154. Bonds of a foreign corporation in the hands of an agent for sale are not liable to attachment against the corporation. Cod- dington V. Gilbert, 17 N. V. 489; affirming 2 Abb. Pr. 242, 5 Duer 72. Where, pending the forech^sure of a rail- ATTACHMENT; GAKNJSIIMENT; TRUSTEE PROCESS, 23-a«. VXt way mortga(;e, a contract was proposed whereby ccrtiiin bonds were to be distrib- uted among the stockholders of the corpo- ration in return for their certiticutes of stock, which contract was never executed, but a declaration of trust was afterwards made referring to the contract, and propos- ing to distribute the bonds as contemplated in the contract, and reciting the receipt of the certificates of stock which were to con- stitute the consideration for said bonds — Ml/, that the bonds were held by the trustee subject to the debts of the company, and were liable to garnishment in his hands. WarrfH v. I>oot/t, 51 Imm 215.— ADHERED TO IN Warren v. Booth, 53 Iowa 742. 23. Coupons.— Coupons j-ivon for the payment of mtercston railroad bonds, being choses in action, cannot be taken by trustee process or sold on execution. One holding such coupons as collateral security does not come within the provisions of Me. Rev. St. 1841, ch. 119, if 58, as that section applies only to property not exempt from attach- ment. Stnith V. Kennebec &• P. A'. Co., 45 Me. 547. 24. Eariiiiif^H of road.— The earnings of a railroad company in the hands of a trustee, as receiver of a connecting road, are attachable. F/rs/ Nat. Hank v. Port- land '. Co. v. C(j/i^, 48 ///. 402.— QuoTKD IN Micliigan C. R. Co. V. Chicago & M. I.. S. R. Co.. 1 III. App. 399. QUOTF.I) AND APPROVI'.D IN Bates V. Chicago, M. & St, P. R. Co., 14 Am, & Eng. R. Cas. 700, 60 Wis. 296. A carrier who receives goods under an engagement to forward them to the con- signee cannot hold them to answer an at- tachment at the suit of a creditor of the shipper, previously i^erved upon him ; nor is he liable in respect, to them upon the at- tachment. Bingham v. Lamping, 26 Pa. St. 340. Con. St. c. 37, § 65, was intended for the protection of carriers against actions which might be brought or threatened by rival claimants to goods, nnd does not extend to goods in the possession of a carrier seized by an officer under legal process. Mer- chants' Bank v. Peters, 1 Man. 372. Persons in New Orleans ordered goods manufactured in New York and shipped to them, to be paid for on delivery. The goods were accordingly manufactured and placed in the hands of a carrier, directed to the parties ordering them at New Orleans. Held, that the title did not pass to the con- signees until the delivery of the goods at place of consignment, and that therefore they were not attachable in a suit against the consignees while they were still in New York. Bates v. New Orleans, J. &* G. N. R. Co., 4 Ad6. Pr. {N. V.) 72, 13 How. Pr. 516. 26. Judf^uients.— A judgment due by a foreign railroad company doing business in Pennsylvania is subject to attachment in the courts of that state. Fithian v. Ne^v York 6- E. R. Co., 2 Phila. {Pa.) 318. A debt established by judgment may be attached, even though it be the judgment J A -J M * Attachment of ^nods in hands of carrier, see note, 14 Am. & Enu. R. Cas. 709. See also ante, 14. 490 ATTACHMENT; GARNISHMENT; TRUSTEE PROCESS, 27. i 'ft?-. of the court of another state. Jones v. New York &0 E. R. Co., i Grant Cas. (Pa.) 457. Fithian v. New York &* E. R. G?., 31 Pa. St. 114. A judgment obtained by a husband and wife apiinst a railwry company for injuries sustained by the wife cannot be attached for a debt due by the husband, being exempted from execution in virtue of section 43 of article 3 of the constitution, which provides that " the property of the wife shall be pro- tected from the debts of the husband." Clark V. Wootton, 63 Md 113. 27. Money. — (i) When subject to al- /(ic/if/tent.— Money collected by a railroad company through its agents for connecting lines, as their share of the business, is the money of the company collecting it, and is liable to a judgment against such company. Ever dell v. Sheboygan &> F. du L. R. Co., 41 Wis. 395. Money deposited by an officer of a rail- way company with private bankers in his own name, but which is known to be the funds of the company, creates the relation of debtor and creditor between :ne com- pany and the banker, and the funds may be attached at the suit of a creditor of the company. Ruel v. Consolidated European &* N. A. R. Co., 16 New Brun. 481. The funds of an insolvent corporation in the hands of a banker are liable to execution attachment by a creditor of tht corporation, and it is no defense that the banker is also a creditor of the corporation to an amount exeeeding the funds in his hands. Penrose V. Erie C. Co., 3 Phila. {Pa.) 198. Under the ommon-Law Procedure Act, 1864, §6i,moi..ydue to a railway company as rent from another railway company may be attached by judgment creditors in the hands of the latter company. Bouch v. Sevenoaks, M. Sf T. R. Co., L. R. 4 Exch. D. 1 33, 48 L. J. Exch. D. 338, 40 L. T. N. S. 560, 27 W. R. 507. Under 38 Vic. c. 5, declaring that " when any action is commenced in respect to any cause of action for which a writ of attach- ment may issue, and any debt or sum of money is due or owing to the debtor from any other party, it shall be lawful for the party for whom such first cause of action subsists to attach and recover any debt or sum of money due or owing to his debtor from any other party, or sufficient thereof to satisfy the claim of the primary creditor," money received by an agent of a railway company is liable to attachment by a cred- itor of the company, though the money is received by him in the course of his em- ployment and is held subject to the orders of the company. Ruel v. Consolidated Euro- pean &^ N. A. R. Co.. 16 A^ew Brun. 481. An officer of a railroad company depos- ited money in bank to his own credit, but with the abbreviation " Supt." after his name. Held, that where it fully appeared that the depositor was the company's super- intendent, and that the money belonged to the company, it was liable to garnishment as the property of the company. Gregg v. Farmers' &* M. Bank, 80 Mo. 251.— Dis- tinguishing McPherson v. Atlantic & P. R. Co., 66 Mo. 103. A railroad was leased to another road which was mortgaged. The trustee in the mortgage took possession of both roads, but notified the parties interested in the leased line that he would not ratify the lease and would only operate the road temporarily. Held, that a fund coming to his hands while thus operating the road was the property of the leased road and could be garnished in his hands at the suit of one of the cred- itors of said road. Mihvaukee & B. Co. , 4 N. J. Eq. 377.— Quoted in Coe v. Columbus, P. & I. R. Co., 10 Ohio St. 372 ; Hill V. La Crosse & M. R. Co., 11 Wis. 214. Reviewed and approved in Dinsmore v. Racine & M. R. Co., 12 Wis. 649. A railroad company cannot be garnished for the debt of another company because it has in its possession cars of the debtor com- pany, which it is rsing under an arrange- ment between the companies for a mutual exchange of through freight cars, instead of unloading and transferring the freight in the cars at the point of connection. Michi- gan C. R. Co. V. Chicago n. &* Eng. R. Cas. 480, 31 Kan. 180,47 Am. Rep. iffj, I Pac. Rep, 622.— Distin- guished IN Missouri Pac. R. Co. v. Maltby, 21; Am. & Eng. R. Cas. 421, 34 Kan. 125; Kansas City, St. J. & C. B. R. Co. v. Gough, 35 Kan. I ; Missouri Pac. R. Co. v. Sharitt, 44 Am. & Eng. R. Cas. 657, 43 Kan. 375, 387. The wages of an employe of the Union Pac. R. Co., a corporation organized under the laws of the United States, wliere the wages are earned in Nebraska, and both the employ6 and his creditor reside there, may be garnished in Iowa; and the court will acquire jurisdiction by personal service on the railroad company in Iowa. Mooney v. Union Pac. R. Co., 60 Iowa 346. — Approved IN Carson v. Memphis & C. R. Co., 88 Tenn. 646. Followed in Oberfelder v. Union Pac. R. Co., 60 Iowa 755. Under Me. Rev. St., ch. 86, § 55, provid- ing that " no trustee shall be charged by reason of any money or other thing due from him to the principal defendant, unless at the time of the service of writ upon liim it is due absolutely, and not on any contingency," the price of labor contracted to be paid for upon estimates being made, fixing its amount and value, is not exempt from attachment, as no such contingency as the statute contemplates exists. Ware v. Gmven, 65 Me. 534. Under the terms of the contract between a railroad company and an employe, the em- ploy6 was to be paid about the middle of one month for the work of the preceding; month, on an estimate and certificate of the com- pany's engineer. On the 4ih of a month the company was served with trustee process, attaching the former month's wages, but the estimate and certificate of the engineer were not completed until the loth of the month, after such process. Held, that tlie debt was due " absolutely," within the mean- ing of the statute, and that the company was therefore chargeable as trustee. Ware v. Gffwen, 65 Me. 534. (2) When not subject to attachment. — A debt due by a corporation organized under the laws of Kentucky, to one of its employes in that state, cannot be reached by a creditor in Alabama by attachment against the debtor and garnishment against the corporation. Louisville &• N. R. Co. v. Dooley, 78 Ala. 524. Where at the time of service of garnishee process the defendant is in the employ of the garnishee, and continues thereafter in such employment, the garnishee proceed- ings bind only the amount due at the date of the service of process, and do not reach to amounts subsequently earned, even under a prior contract of employment. Burlington '. R. Co., 97 Mich. 33, 56 .V. W. Rep. 106. 2. Exemptions. 36. Law of place.— Exemption from garnishment in another state in which the debtor resides cannot be pleaded by a gar- n t m m n m i 1 500 ATTACHMENT; GARNISHMENT; TRUSTEE PROCESS, 36. ,F.: nishee in this state, unless the amount due to the debtor from the garnishee is also exempt by the laws of Iowa. Leiber v. Union Pac. R. Co., 49 Iffwa 688.— Distinguishing Moore V. Chicago, R. I. & P. R. Co., 43 Iowa 385.— Approved in Missouri Pac. R. Co. v. Malt- by, 25 Am.& Eng. R. Cas. 421, 34 Kan. 125. It is the settled rule that in a garnishment proceeding in Iowa the exemption laws of another state or territory cannot be pleaded or relied on as a defense by either the gar- nishee or the judgment-debtor. Broadsireel V. Clark, 65 Iowa 670, 22 N. IV. Rep. 919. Where a citizen of Kansas attempts by a proceeding in garnishment against a for- eign railroad corporation to subject to the payment of his claim in the courts of that state the personal earnings of a citizen of another state, which personal earnings are, by the laws of Iowa and also of such other state, exempt from being so applied, the earnings of such debtor are exempt from such process. Kansas City, St. J. Eng. R. Cas. 421, 34 Kan. 125, 8 Pac. Rep. 235. — Approving Leiber v. Union Pac. R. Co., 49 Iowa 688. Distinguishing Burlington «& M. R. R. Co. V. Thompson, 16 Am. & Eng. R. Cas. 480, 31 Kan. 180. 36. Wati^es, when exempt, geuer- ally.— The Md. Code, art. 10, § 36, em- bodies the substance of the acts of 1852, ch. 340, and 1854, ch. 23, by exempting from attachment aU wages not actually due, and of wages actually due, the sum of $10. House v. Baltimore St* O. R. Co., 48 Md. 130. In the act of 1874, ch. 45, tiie object of which was only to increase the amount of the exemption, the proviso does not enlarge the class of wages or salary subject to at- tachment, by extending the effect of the at- tachment to wages not due ; but as to debts existing prior to the act of 1874, ch. 45, it limits the exemption to $10, as under the repealed sec. 36 of art. 10 of the Maryland Code. House v. Baltimore » O. R. Co., 48 Md. 130. Under How. Ann. St. (Mich.) § 3423, a railroad company may withhold payments for the protection of laborers and material- men as against a garnishing creditor of the contractor, though no bill of items of material and labor has been furnished, as provided in the statute. Dawson v. Iron Range 6m H. B. R. Co., 97 Mich. 33, 56 N. W. Rep. 106. — Distinguishing Dudley v. Toledo, A. A. & N. M. R. Co., 65 Mich. 655. The wages for sixty days' services of laborers, mechanics, or clerks who are heads of families, in the hands of those by whom such laborers, mechanics, or clerks may be employed, are exempt from execution, at- tachment, or garnishment, whether the em- ploy6 is a resident of the state or not. Such wages are absolutely exempt. Wright v. Chicago, B. &- Q. R. Co., 25 Am. &* Eng. R. Cas. 426, 19 Neb. 175, 27 N. IV. Rep. 90. — Followed in Turner v. Sioux City & P. R. Co., 19 Neb. 241. Wis. Rev. St. 1858, ch. 79, § 40, exempt- ing railroad employ6s from garnishment in certain cases, was repealed by implication by I i , ^, ATTACHMENT; GARNISHMENT; TRUSTKI-: PROCESS, 37-30. 501 the act of 1S58, ch. 148 ; and the subsequent amendment of such chapter by the act of 1861, ch. 280, limiting the exemption to married persons, makes it apply to railroad employes the same as to all other persons. Bur lander v. Milwaukee &* St. P. R, Co. , 26 IVis. 76. 37. Wages earued in foreign states. — Where the wages of a railroad employe, residing in another state, are gar- nislieed in Illinois, the exemption given by the laws of the state of his residence has no application, but he will be allowed the same exemption that is allowed a resident of II- linoij by the laws of tliat state. Mineral Point R. Co. V. Barron, 83 ///. 365.— Fol- lowed IN Wabash R. Co. v. Dougan, 142 111. 248. Where an employe, whose w.-^ges are ex- empt in Indiana, does no act whereby he subjects himself to the jurisdiction of the courts of Michigan, and where the contract for his services is made and payable in In- diana, and the services are performed there, and no jurisdiction of the person or prop- erty of the employe is obtained in Michigan save by the disclosure of the garnishee, and tlie debt of the employe \ as also contracted in Indiana, proceedings in attachment and garnishment cannot be successfully main- tained in Michigan by an assignee of the claim. Drake v. Lake Shore &' M. S. R. Co., 69 Mich. 168, 37 N. W. Rep. 70. Where a railroad employe is entitled to an exemption of wages under the laws of Mississippi, such exemption cannot be de- feated by attaching the wages in the hands of the company in another state. Where both debtor and creditor reside in Mississippi its courts will give effect to its own exemp- tion laws, regardless of the laws of another state. Illinois C. R. Co. v. Smith, 70 Miss. 344, 12 So. Rep. 461. A railroad company, the lines of which extended throutjh Ohio and West Virginia, owed one month's wages to a brakeman resident in Ohio. By the laws of Ohio one month's wages art sxempt from attachment and execution. A creditor of the brake- man instituted attachment proceedings against him in West Virginia, attaching the wages due by the company. The brakeman had notice of the proceedings, but did not appear, and the company, under order of the West Virginia court, paid into court the amount in its hands as satisfaction of the debt. An assignor of the brakeman subse- quently brought suit in Oliio against the company, for the amount of the wages due. Held, that the exemption law of Ohio did not extend in this case to West Virginia ; that there was no presumption that a simi- lar law existed in such state, that even if the brakeman could have set up such ex- emption in the West Virginia court it did not appear that the company defendant could have done so; that the company did not appear to liave neglected any duty in- cumbent upon it ; that its payment of the amount of the wages due operated as a dis- charge ; and that tiierefore plaintiff was not entitled to recover. Eichelburger v. Pitts- burgh, C. &* St. L. R. Co., {Ohio) 9 Am. &- Eng. R. Cas. 158.— Distinguishing Pierce V. Chicago & N. W. R. Co., 36 Wis. 285 ; Chicago & A. R. Co. v. Ragland, 84 III. 375. — Ai'PROVKD IN Carson v. Memphis &C. R. Co., 88 Ten n. 646. 38. Kffect of payment of wages by ganiisliee to creditor.— If a gar- nishee pays over money due from him to his employe for wages which are exempt from garnishee process, it seems that he cannot set that fact up in defense to a suit brought by such employe to recover such wages. Chicago &* A. R. Co. v. Ragland, 84 ///. 375. Where the debt due from a railroad gar- nishee to the defendant in the garnishment is exempt, as, for instance, wages for the pre- vious thirty days, its payment under order of the court to tlie plaintiff in the garnishment will not entitle the garnishee to subrogation. Dunn V. Missouri Pac. R. Co., 45 Mo. App. 29. 39. or failure to make defense. — Where wages in the hands of a railroad company are not subject to garnishment it is the duty of the company to interpose that defense, and if it fails to do so it cannot have credit for the amount thus unneces- sarily paid in the garnishment proceeding in an action by its employe. Terre Haute • Eng. R. Cas. 426, 19 Neb. 175, 27 N. IV. Rep. 90. Turner v. Sioux City &* P. R. Co., 19 Neb, 241. — Following Wright v. Chicago, B. & '■?*, 50'^ ATTACIIMKNT; GAKNiSILMENT; TRUSTEL: PROCESS, 40,41. Q. R. Co., 19 Neb. lyi.— Missouri Pac. K. Co.\. Wh.ipsker,n Tex. 14, 13 5. ^. Rep. 639. Pierce v. Chicago &* N. IV. A'. Co., 36 IVis. 283.- DiSAPPROVKD IN Moore v. Chi- cago, R. I. & F. R. Co., 43 Iowa 385 ; Car- son V. Memphis & C. R. Co., 88 Tenn. 646. Distinguished in Eichelburger v. Pitts- burgh, C. & St. L. R. Co., (Ohio) 9 Am. & Eng. R. Cas. 158. A railroad company is not bound to make a defense for an employe in proc "dings against him in another sta e in 'le company is summoned as garnisi n'x failure to do so will not render it 1 .lLIl. u> me employe for wages in its hands. Chicago, St. L. &• P. R. Co. V. Meyer, 117 t.nc'. 563, 19 N. E. Rep. 320. A Missouri corporation having the wages of one of its employes garnished in its hands in Missouri, the wages being earned in Iowa, where they are exempt under the laws of that state, is not bound to interpose the defense of the exemption in Iowa; and a judgment against it in Missouri will con- stitute a good defense when sued in Iowa to recover the same wages. Moo^e v. Chicago, R. I.&»P. R. Co., 43 Iowa 385. — Disapprov- ing Pierce v. Chicago & N. W. R. Co., 36 Wis. 283. Following Baltimore & O. R. Co. V. May, 25 Ohio St. 347. — Distin- guished IN Leiber w. Union Pac. R. Co.,49 Iowa 688. Reconciled in Missouri Pac. R. Co. V. Sharitt, 44 Am. & Eng. R. Cas. 657, 43 Kan. 375, 387, Where there was no charge of bad faith on the part of the employer in failing to state in the answer in garnishment that the wages were exempt, and the employer, in pursuance of the order of the court, paid the money into court, where the debtor claimed it as exempt, and filed a motion supported by affidavits for its delivery to him, which motion was overruled, the debtor will, so far as the garnishee is concerned, be concluded by the garnishment proceedings, and can- not afterwards bring an action against the garnishee to recover the debt. Turner v. Sioux City &'P. R. Co., 19 Neb. 241, 27 N. IV. Rep. 103. ▼. PBOOEDUBE. I. Suing out the Writ. 40. The affidavit.— An affidavit for an atuchment under § 3702, Rev. St., if not made by the plaintiff, must contain a sworn statement that it is made on his behalf. A mere recital, as " J. K., on behalf of I. S., being duly sworn," etc., is insufficient. Miller v. Chicago, M. St. P. R. Co., 58 IVis. 310, 17 ^V. IV. Rep. 130. An affidavit made as the basis of an at- tachment proceeding against a railroad cor- poration need not allege the corporate character of the company. Mississippi C. R. Co. V. Plant, 58 Ga. 167. The title of the act incorporating a rail- road company need not be slated in an affi- davit for attachment against it ; and if such statement be necessary, its omission is not a jurisdictional defect, and may be supplied by amendment either before or after judgment, Ruthe V. Green Bay &* M. R. Co. yj Wis. the i' idiorityto issue an attachment rests on iacts, the principal of which is the obli- gation to pay, and the proof of which would be indispensable before a judgment could be obtained and an execution fssued ; and the affidavit for an attachment should show the libility of the defendant by such evidence as would make out a prima-facie case at the trial ; so where the facts alleged in an affi- davit and complaint are made upon informa- tion and belief, but there is nothing stated to show the source of the information or how it was derived, the affidavit and com- plaint are not sufficient. Pride v. Indian- apolis, D. &* W. R. Co., 21 N. V. S. ^. 261, 51 Hun {N. v.) 640, 4 JV. V. Supp. 15. 41. Time and place of issue. — A railroad cannot be required to answer a summons of garnishment in any other county than that in which its principal business office is situated, unless it appear from the record that the debt charged is one for which, by statute, it may be sued else- where. Clark V. Chapman, 45 Ga. 486. A railway company does not, within the meaning of 32 Vic. ch. 23, § 7, O., providing where garnishee process may issue, "live and carry on business " at any other place than the head office at which its business is carried on. Ahrens v. McGilligat, 23 U. C. C.P.iji. Westoverv. Turner, 26 U. C. C. P. Sio. The fact of the railway company having, in addition to its local station, a factory for the making and repair of the roUmg stock used on the road, and employing a number of workmen therein, did not bring such place within the section. IVestover v. TV/r- ner, 26 U. C. C. P. 510. The defendant, a railroad comn-iny, in an ATTACHMENT; GARNISHMENT; TRUSTEE PROCESS, 42-44. uOU m action (or a tort is not subject to garnish- ment until final judgment is recovered. A garnishment issued and served after a first verdict for the plaintiff in the action, which verdict is subsequently set aside and a new trial granted, and answered before a second trial is had, the answer denying any indebt- edness, seizes nothing, and forms no lien on the final recovery. Gamble v. Central R. &* B. Co., 80 Ga. 595, 7 S. E. Rep. 315. 42. Form and sufficiency of the writ.— The C. R. Co., one of the trustees named in the writ, is a foreign corporation. The process alleged that said company " has an authorized agent resident within the state of Vermont at Bellows Falls, in the town of R. and the county of W. and said state." Such allegation is sufficient to give the court jurisdiction when legal service has been made. Chaffee v. Rutland R. Co., 16 Am. &• Eng. R. Cas. 408, 55 Vt. no. An attachment against the estate of the C. I. Co. summons M., president of the S. V. R. Co., garnishee, to answer what property of the C. I. Co. he has in hand, and a judg- ment is rendered that the plaintiff recover of M., president of the S. V. R. Co., gar- nishee of the C. I. Co., a sum of money, are not an attachment and judgment against the S. V. R. Co. as garnishee, and do not bind property in the hands of the latter company belonging to the C. I. Co.; and a sale of the property under execution upon such judg- ment does not pass title thereto, or bar the C. I. Co. from setting up its claim to such property against the S. V. R. Co., either under the general law, or under the law of Pennsylvania. Fidelity I., T. &* S. D. Co. v. Shenandoah Valley R. Co., 43 Am. 6f* Eng. R. Cas. 356, 33 IV. Va. 761,11 S. E. Refi. 58. Such property being negotiable mortgage bonds, and it not appearing that when judg- ment was rendered they had been so exe- cuted as to be considered in existence as valid mortgage bonds, a sale if them under such proceeding would not pass title thereto under the Pennsylvania law. Fidelity /., T. &* S. D. Co. V. Shenandoah Valley R. Co., j^ZAm. &* Eng. R. Cas. 356, 33 W. Va. 761, II S. E.Rep. 58. 2. Service, levy, and custody of the property. 43. Notice to principal defendant. — Where the property of a non-resident cor- poration is attached, it is necessary, under the 14th amendment to the constitution of the United States, relating to "due process of law," to give the company notice of sonic kind. Martin v.\Central Vt. R. Co., 50 //un (N. V.) 347, 20 N. Y. S. R. 375, 3 A^. Y. Supp. 82.— Reviewing Gray v. Delaware & H. C. Co., 5 Abb. N. Cas. 131 ; Towle v. Wilder, 57 Vt. 622. 44. Service upon g^arnisliee— Who may be served. — A judgment nisi in pro- ceedings by garnishment against a railroad company, and a judgment final thereon against such company, cannot be sustained unless they show in the record of such judg- ments that the court had satisfactory evi- dence that the person upon whom such gar- nishment and notice of the judgment nisi were served was the president of such rail- road company at the time of such service, when there is no appearance on behalf of said company. Montgomery &* E. R. Co. v. Hart'well,MAla. 508. Under the Georgia statute service of gar- nishment on a domestic corporation must be upon the president, if he is in tiie state, and the temporary absence of such oflker will not justify service upon a subordinate officer or agent. Steiner v. Central R. Co., 60 Ga. 552. Where a state designates the officer of a corporation upon whom process may be served, service cannot be upon the com- pany's attorney, who is not mentioned as such officer, neither can he accept service for the corporation. Northern C. R. Co. v. Rider, 45 Aid. 24. In Michigan garnishee process issued by a justice of the peace against a railroad company must be served on the company's general agent or principal officer ; service on a local agent is not sufficient. Detroit, H. &* I. R. Co. V. Younghaus, 2 Mich. (N. P.) 143. Where the law authorizes service of gar- nishee process upon one officer of a corpo- ration, while the property sought to be reached is in the actual possession of an- other officer or employe, if the latter de- livers such property to a person author- ized to receive the same before such other officer or employe can, with reasonable dili- gence on the part of the officer served, be notified by the latter to retain possession thereof, the corporation is not liable as gar- nishee. Bates V. Chicago, M. &> St, P. R. Co., 14 Am. &* Eng. R. Cas. 700, 60 Wis. 296, 19 N. IV. Rep. 72, 50 Am. Rep. 369.— Approved in Pennsylvania R. Co. v. Pen- nock, 51 Pa. St. 244; Western R. Co. v. i| liiikL 6U4 ATTACHMENT; GAKMSIIMliNT; TRUSTEK l^KOCESS, 45-47. I a I Thornton, 60 Ga. 300; Wheat v. Platte City &Fi. D. M. R. Co., 4 Kan. 317; Illinois Cent. K. Co. V. Cobb, 48 111. 402. 46. Place of service. — Where a judg- ment is rendered in the circuit court, pro- cess of garnishment can be sent to any county in the state where the garnishee may be found, and in this respect there is no dirterence between natural person' and corporations. Either may be served as gar- nishee. Toledo, W. Sf W. R. Co. v. Rey- nolds, 72 ///. 487. 46. Officer's return of service.— The service of a garnishment against a railroad company returned in these words; " Served on the Montgomery & Eufaula Railroad Company, the garnishee, by leav- ing a copy of the garnishment with Lewis Owen, president of said road, ' is insufficient to authorize a judgment nision tailure to an- swer, against said company, at tlie time of said service, if there is no appearance for said company; and this proof must be made a part of tlie record of the judgment. Mont- gomery &• E. R. Co. V. Hartwell, 43 Ala. 508. The service of notice of such judgment nisi in these words, " Executed by leaving a copy of the within with Lewis Owen, presi- dent of the Montgomery & Eufaula Rail- road Company, this 4ih day of May, 1868," is insufficient to sustain a judgment final on said judgment nisi, on failure to answer, without proof that Owen was such presi- dent at the date of service. Montgomery <&- E. R. Co. v. Hartwell, 43 Ala. 508. By the act of October i6th, 1885 (Ga. Acts 1884-5, p. 99), service of summons of garnishment may be made upon the agent in charge of the office or business of a cor- poration in the county or district at the time of the service, but not upon any other agent of the corporation. It follows that the officer's return designating the person served merely as " agent," without describ- ing him as the agent in charge of the office or business of the railroad corporation in the county or district, will not afford a basis for taking judgment against the corporation for failure to answer. Hargis v. East Tenn., V. &* G. R. Co., 90 Ga. 42. Under the Maryland statute providing that process against a corporation shall be served on its " president or any director, manager, or other officer of the company," it is neces- sary that the return show that a garnishee process was served upon an officer desig- nated by the statute, and a return merely that it was servctl upon ilie corporation is not sufficient. Northern C. R. Co. v. Rider, 45 Md. 24. A justice does not acquire jurisdiction in garnishment over a railroad company on return of service upon a specified person described merely as " agent of the within- named defendant," and the appearance of some person of a different name describing himself as "ticket agent of said road." Lake Shore ICng. R. Cas. 368, 78 A>. 250. 48. Necessity tliut ofHocr take act- ual possession. — Where the property to be attached is susceptible of seizure, the officer must take possession in order to bind it. So where such property of a railroad is in another county, mere service of garnishee process upon the company will not hold it. Pennsylvania R. Co. v. Pennock, 51 Pa. St. 244. — Approved in Bates v. Chicago, M. & St. P. R. Co.. 14 Am. & Eng. R. Cas. 700, 60 Wis. 296. To constitute a valid levy of attachment upon railway bonds in the hands of a de- positary, it is necessary that the officer take them into actual custody ; but where such depositary refuses to surrender them, but ex- poses them to the officer, who takes pos- session and then agrees to leave them with the depositary for the officer, it is a suffi- cient compliance with the law. Coffin v. Northwestern C. Co., 19 AM. N. Cas. {N. V.) 383. Where a statute provides that personal property capable of manual delivery may be attached by taking it into custody, goods in the hands of a railroad company to be shipped are not properly attached by service of notice upon the company without any manual delivery; and upon the consignee becoming insolvent the seller may claim them under his right of stoppage in transitu as against the attaching creditor. Kiesel v. Union Pac. R. Co., 6 Utah 1 28, 2 1 Pac.Rep. 499. The levy of an attachment upon goods in the hands of a railroad for transportation, by tacking a copy of the order of attach- ment upon the goods and notifying an agent of the road thereof, is insufficient. Louisville &* N. R. Co. v. Spalding, {Ky.) 22 Am. M. S. R. Co., 21 Ohio St. 221. 4». Preveutiiid: levy.— A railroad company is not liable at the suit of an at- taching plaintiff because one of its agents prevented the officer from levying the attachment upon goods already in a train, and by immediately running the train out of the state. Western R. Co. v. Thomas, 60 Ga. 313, 3. Quashing or vacating. 50. Gruiiuds for Quashing:.— Under Tex. Rev. St. 1879. art. 183, an application for a writ of garnishment in a suit where an original attachment was issued must show that an original attachment was issued in the suit, and a failure to so state is ground for quashing the writ, and cannot be cured by amendment. Scurlock v. Gulf, C. &- S. F. R. Co., 77 Tex. 478. 14 S. IV. Rep. 148. An attachment in a suit to collect interest coupons detached from railroad bonds will not be dissolved by showing that the plam- tiff had brought a prior suit in equity to compel an accounting of the net income of the road, and to obtain payment of the same coupons, which suit had passed to an inter- locutory decree ordering an accounting. As to how far such suit would constitute a defense must be determined at the trial, but it is not ground for abatement or for quashing the attachment. Seeley v. Missouri, K. &• T. R. Co., 39 Fed Rep. 252. 51. or vacating.— Where it ap- pears, on a motion to vacate an attacnment, in an action by a ncn-resident against a foreign corporation, that the plaintiff has done work for the corporation in building its road, which work was largely in South Carolina, there is no error in sustaining the attachment on the ground that the cause of action arose in that state, at least to such extent as the plaintiff might show at the trial that it did arise in that state. Central R. &^ B. Co. v. Georgia, C. &■• I. Co., 32 So. Car. 3ig, II S.E. Rep. 192, 638. A railroad company moved to set aside an attachment, on the ground that the property attached was not the property of defendants, being subject to a bill of sale to the Dominion government. Held, that the defendant company could not take advan- If lO ■ !!!. 1 ii"'-;^ m • m ; f ;=:na ^ n i i 5UU ATTACHMENT; (JAKMSIIMIINT; TKUSTi:!' PROCKSS, 52-50. tage of llie luct that llic properly hclonncd to a tliird party. Kitchen v. Ckntltam li. A. Co., 17 A'ew Unin. 215. 4. Fixing the liability of the garnishee or trustee. 02. Ill i^enernl. — The liability of a trustee is deterinined by the state of facts existing at the time of liis disclosure and set forth therein. Smith v. Boston, C. <>* M. R. Co., 33 A'. //. 337. A garnishee's liability is determined ordi- narily by his accountability to the defendant, and if by any pre-existing bona-Jide contract that accountability has been removed or modified, the garnishee's liability is corre- spondingly affected. Baltimore &* O. R. Co. V. Wheeler, 18 Md. 372. 53. Wliut del'eii8e8 are open, gen- erally. — It is no defense to an action for a debt that attaching orders have been served upon defendant for the claim, or that he lias been ordered to pay it over, under the garnishment clauses of the C. L. P. A. Tliere must be payment on such orders, or execution levied on defendant. Sykes v. Brockville Sr* O. R. Co., 22 U. C. Q. B. 459. If a garnishee duly served delivers prop- erty to the receiver of the principal defen- dant appointed in another suit he does so at his own risk, but he will be allowed to show in defense that the receiver was entitled to the possession of the property as against the plaintiff in garnishment. Crerar\. Mil- waukee &* St. P. R. Co., 35 Wis. 67. In a garnishment proceeding against a railroad company the company denied hav- ing any funds or owing the defendant, but ad- mitted that, at the time of the writ, a certain agent of theirs held certain funds belonging to the debtors, which had been paid to the creditor in the garnishment proceeding, but that such funds were not the funds of the railroad company. Held, that the company was not again liable to the creditor. East Line &* R. R. R. Co. v. Terry, 50 Tex. 1 29. 64. Payment of Judgment in an- other state.* — A judgment in the trustee process, in Massachusetts, against an in- habitant of the state, who owes a debt to a corporation established in another state, will protect the trustee against a suit brought in that state by such corporation to recover * See also ante, 2. such debt, Ocean Ins. Co. v. J\» tsmouth Marine R. Co., 3 Met. {Mass.) 420. Where a debt due from a railroad has been garnished in its hands in anotlier state, payment there will constitute a good defense when sued in New York for the same debt. Duggan v. Lake Shore iS* M. S. R. Co., I Sheld. (N. V.) 399. Where the wages of a railroad employe have been garnisheed in the hands of the company, which is a foreign corporation, in another state, payment there will constitute a good defense when action is brought against the company in New York. J?eal- ing V. New York, N. H. «^ H. R. Co., 8 A^. Y. S. R. 386. Robarge v. Central Vt. R. Co., 1 8 Abb. N. Cas. (N. Y.) 363. In an action by an employe of an Ala- bama railroad corporation, whose road was also partly operated in Tennessee, to recover wages or compensation for work done here, plaintiff being then and still a resident of Alabama, a judgment rendered against the company in Tennessee, under a garnishment issued on a judgment there rendered against the plaintiff on personal service, and pay- ment thereof by the garnishee, constitute no defense, in the absence of evidence show- ing that, by the statutes of Tennessee, the court there had acquired jurisdiction of the debt sought to be reached and subjected. Alabama G. S. R. Co. v. Chumley, 92 Ala. 317, 9 So. Rep. 286. — Explaining East Tenn., V. & G. R. Co. v. Kennedy, 83 Ala. 462. 55. Effect of notice to garnishee of assignment of debt. — If a railroad com- pany answers a foreign attachment of the wages of an employ^, after it has notice that such wages have been assigned, admit- ting that it owes the amount which is gar- nished in its hands, a judgment in such proceeding is not a good defense to a sub- sequent action brought by the assignee. Illinois C. R. Co. v. Bryant, 70 Miss. 665, 1 2 So. Rep. 592. 56. Garnishee's answer— Who may malfe.— Where a railroad company is gar- nisheed it may answer by its proper officer under oath. Oliver v. Chicago &» A. R. Co., 17 ///. 587. Where a corporation is garnished it may answer by its chief executive officer under the seal of the corporation, but the answer must be sworn to by some proper officer. Chicago, R. L &* I'. R. Co. v. Mason, 1 1 ///. . ATTACH. MI' NT; (iAKNISIIMl'NT; TKUSTliK I'KOCliSS, fl7, 58. .".u; App, 525.--F0LUJWING Oliver v, Chicago & A. K. Co., 17 III. 587. Where a corporation is garnished any officer having; knowleilge of the facts may make the affidavit, but it need tujt be made by the same officer upon whom tlie writ was served. Duke v. Rhode Island Locomotive Works, 11 R. I. 599. Under Ala, Code, § 3222, an answer of a corporation as garnishee cannot be made by any person unless he makes affidavit that he is the duly authorized agent of such corporation to make such answer. Memphis r relcnNe of {gar- nishee. — The existence of a contingent liability on the part of a trustee for the principal defendant furnishes no valid ground for the discharge of the trustee ; nor will the court, after disclosure com- pleted, direct a suit to be continued to await the result of such contingent liability. Stnith V. Boston, C. » T. Co., 50 Am. <&* Eng. R. Cas. 683, 81 Tex. 530, \^ S. IV. Rep. 60.— Followed in State 7>. Kennedy, 81 Tex. 553- 2. Election of remedies.— Where a railroad company is charged with a viola- Hisi fllM m m f! h 513 ATTORNEY-GENERAL, 3-6.-ATTORNEYS, 1. tion of legal duty, the attorney-general may proceed against it either by an information in the nature of a guo warranto or by in- junction, but he cannot proceed by both remedies. Attorney-General v. Chicago &* N. W. y?. Co., 35 Wis. 425. 3. Power to bind state. — ^The author- ity conferred upon the attorney-general by the So. Car. act of 1871, authorizing him to institute actior- against railroads which were in default in paying interest on their bonds guaranteed by the state, to bind the state by appearing in an action against a railroad company, must be confined to cases similar to those which, by the same act, he was authorized to bring against railroad companies. Ex parte Dunn, %So. Car. 207. Where the constitution of a state does not make it liable to be sued, an action cannot be maintained against it except as provided by the constitution of the United States. The mere consent of the attorney-general, by appearing to the action and answering the complaint in the name of the state, does not bind it. Ex parte Dunn, 8 So. Car, 207. The attorney of the commonwealth for the county of Suffolk, after the Massachu- setts act of 1843, ch.99, abolishing the office of attorney-general, and previous to that of 1849, ch. 186, re-establishing that office, was authorized by law, upon the requisition of the governor, to institute proceedings be- fore the proper tribunal, for the recovery of damages su stained by the commonwealth for land taken for a railroad, and to prose- cute the sap~e to their final termination ; and such attorney had a right, also, with the permission of the court or tribunal in which the proceedings were pending, and for suf- ficient cause, to avail himself of the aid of other suitable counsel, in conducting and managing the same, under his direction and control and upon his responsibility. Com- monwealth v. Boston &* M. R, Co., 3 Cush. (Mass.) 25. 4. Enforcement of penal laws by.— A state's attorney should not be permitted to prosecute actions, in the name of the state, for his own benefit, to recover the penalty prescribed by 111. St. ch. 114, §§ 63, 64, against conductors and engineers for leaving cars on the track at highway cross- ings, to be prosecuted for in the name of the state for the use of the person who may sue lor the same. People v. IVabasli, St. L. &• P. R. Co., 12 ///. App. 263.-QUOTING Peo- ple ex rel. v. North Chicago R. Co., 88 III. 537. 5. Interveninj; in suits against cor- porations. — The attorney - general was asked to intervene in an application for an injunction to restrain the building of an electric railway through the Gettysburg battlefield grounds. Held, that, so far as the question involved the good taste or sentiment in building a road through such grounds, the attorney - general would not express an opinion. Gettysburg B. F.Assoc. V. Gettysburg E. R. Co., 2 Pa. Dist. 659. ATTORNEYS. Advice of, as a defense, see Contempt, 6; Malicious Prosecution, 13. Employment of physicians by, see Medical Services, 4. Power of county commissioners t » employ, see Counties, 6. I. EMPLOYMENT OF AND SELATION WITH CLIENT 512 II. AUTH0BIT7 AND POWERS 513 in. COMPENSATION AND LIEN 515 17. PBiyiL£OEI> COMMUNICATIONS. ... 521 I. EMPLOYMENT OF AND RELATION WITH CLIENT. 1. Power to appoint and how ex- ercised. — The power to employ attorneys and counsellors-at-law is among the implied powers of the managing officers of a cor- poration, and a formal resolution authoriz- ing them to do so is not necessary. South- gate V. Atlantic T. C. R. Co., 9 Am. &* Eng. R. Cas. 197, 58 Tex. 134. II. ATTTHOBITT AND FOWEBS. 5. In general.— Where an attorney is employed to attend to a suit he has the im- plied power to do anything necessary in the suit, which would include the suing out of a commission to take depositions and the employment of competent persons to exe- cute the same. Fairchild v. Michigan C. R.Co.,Zni. App. 591. An attorney-at-law employed to prosecute a suit is impliealy authorized to collect the judgment therein. Conway County v. Little Rock &* Ft. S. R. Co., 39 Ark. 50. A notice to the general attorney of a rail- road company relating to matters connected with its land department, before the institu- tion of any action against the company, is not notice to the company's land depart- ment, unless the general attorney has been given special charge of the subject-matter. Atchison, T. &* S. F. R. Co. v. Benton, 42 J^an. 698, 22 Pac. Rep. 698. Neither the Pennsylvania act of May 25, 1887, giving plaintiff's attorney, in an action of trespass, power to sign the statement, nor Court Rule xxxi, authorizes the attorney to swear to the statement. Warner v. Rail- road Co., I Pa. Dist. 247. 6. Authority to appear in suits.— A corporation is bound by the acts of an attorney who has appeared for it to the knowledge of the directors, although the attorney's authority has not been given under the seal of the corporation. Faviell V. Eastern Counties R. Co., 2 Exch. 344, 6 D. &» L. 54, 17 L. J. Exch. 297, 17 L.J. Exch. 223. The appearance of counsel specially for a railroad, and his moving to dismiss a petition by a creditor for the appointment of a re- l! '''..,. m 514 ATTORNEYS, 7-10. ■^ ^«'' m ceiver of its property, do not preclude him from subsequently appearing for the mort- gage trustee in a proceeding to foreclose a mortgage of the company. S/taw v. £ii/, 95 I/. S. 10. 7. Power to bind client, {generally. — An attorney employed by a railroad com- pany merely to represent it in a condemna- tion proceeding for right of way across cer- tain land, has no authority to bind the railroad by an agreement for the payment of damages to a person not a party^to the suit, on account of interference with a log- ging road operated by him across such pro- posed right of way. Haynes v. Taconta, O. 6- G. H. R. Co., 7 Wash. 211, 34 Pac. Rep. 922. In treating with the owner of lands for the right to cross the same by a railway, or in proceedings before arbitrators ap- pointed between him and the company, with a view to ascertain the amount of com- pensation, the solicitor acting for the com- pany at the arbitration is not qualified to enter into any special agreement binding the company to construct and maintain a crossing. IVood v. Hamilton &* N, W. R. Co., 25 Grant Ch. {Ont.) 135. Plaintiff brought suit against a railroad company to recover the value of certain wool which was claimed to have been de- stroyed by fire while in the defendant's warehouse. After the company had answered, plaintiff served upon the at- torney for the defendant a demand, under Cal. Civ. Code, § 1838, to be informed of the circumstances under which the loss oc- curred. Held, that the attorney was not authorized by virtue of his employment to give such information or to make in pais admissions or statements in respect to the circumstances under which the loss oc- curred, and that his answer was therefore not admissible in evidence against the com- pany. Wilson V. Southern Pac. R. Co., 53 Cal. 735- Plaintiff, a female passenger, sued a rail- road compHny for the loss of her trunk, and in giving her deposition the company's at- torney put a cross-interrogatory to her which she claimed was libellous, and by an amendment she set it up as additional claim for damages. Held, that, in the absence of anything to show that the act of the attor- ney was directed or approved by the com- pany, the latter would not be bound by his act, even if the interrogatory was libellous. Galveston, H. &- S. A. R. Co. v. Smith, 81 Tex. 479, 17 S. W. Rep. 133. 8. by admissions.— An admission of service of process, signed by the attorney of a railroad company, and returned with the writ, must be construed as a waiver of ser- vice on the company, and a consent by him to appear voluntarily in the cause for the garnishee. The authority of tlie attorney to waive service and give such consent will be presumed. Northern C. R. Co. v. Rider, 45 Md. 24. Where a railroad company is sued for damages, an admission by the company's attorney as to the amount of plaintiff's dam- ages, in case he was entitled to recover at all, is not binding on the company at a second trial. Weisbrod v. Chicago 6» N. W. R. Co., 20 Wis. 419. 9. by .stipulations.— Where a client intrusts the management of a suit to his attorney, that management is exclusive, and neither the client himself nor his agent can sign a stipulation for a continuance. Night- ingale v. Oregon C. R. Co., 2 Sawy. { U. S.) 338. An attorney employed by a railway com- pany to procure a condemnation of land for a right of way cannot bind the peti- tioner by his agreement or stipulation as to the plan of constructing the road, in the absence of special authority to do so. Wabash, St. L. &* P. R. Co. v. McDougall, 36 Am. 6- Eng. R. Cas. 597, 126 ///. in, 18 N. E. Rep. 291, I L. R. A. 207. 10. Power to make compromises. — Pending a suit against a railroad company for personal injuries, plaintiff's attorney, acting under a mistake of fact as to his authority, entered into an executory agree- ment with the company for a compromise of the suit, which was not entered of record. Held, that the company could not specifi- cally enforce the agreement against the plaintiff. New York, N. H. C H. R. Co. v. Martin, 158 Mass. 313, 33 A^. E. Rep. 578. —Quoting and following Moulton v. Bowker, 1 1 5 Mass. 36. An attorney-at-law cannot bind his client by an unauthorized agreement to compro- mise a damage suit against a railroad com- pany, and where seasonable application is made the court has power to vacate a judgment entered upon such agreement, and to place the parties in statu quo. Dal- ton v. West End St. R.Co., 1 59 Mass. 221, 34 A'. E. Rep. 261.— Approving New York, ATTORNEYS, 11, 12. 515 N. H. & H. R. Co. V. Martin, 158 Mass. 3«3. An attorney for a railway company has no authority, when acting under general au- thority as sucli, in defending a suit insti- tuted against tiie company by an employe for damages, to compromise the suit on terms which involve the permanent future eniploymeni y the company of the plaintiff. Such a contract can only be valid when made in pursuance of special authority. Jiast Line Eng. R. Cas. 16, 72 Tex. 70, 10 S. W. Rep. 99, 298. Ill an action for damages for breach of a contract to employ the plaintiff, evidence that the defendant's attorney agreed to a compromise judgment in a suit at plaintiff's instance, that the judgment was paid by de- fendant, and that the attorney had charge of other suits arising out of the r-ame acci- dent and endeavored to compromise them, is sufficient to warrant the jury in finding that he had authority to make the compro- mise upon which the action is founded, and, as part thereof, to agree to give the plain- tiff employment. East Line &* R. R. R. Co. V. Scott, 38 Am. &* Eng. R. Ctts. 16, 72 TV.r. 70, 10 S. W. Rep.^% 298. 11. Proof of authority, and when presiiiiiefl.— An offer to show that the solicitor of a company had control of its legal business is not sufficient proof of his authority to accept the surrender of a lease or an abandonment of the premises. James- town &* F. R. Co. V. Egbert, 1 52 Pa. St. 53, 2^Atl. Rep. 151. Where a suit for a tort is instituted against a railroad company, and a notice is served on the company, which is signed by an at- torney for the plaintiff, and the same attor- ney signs the declaration and appears in the suit for the plaintiff, in the absence of anything to the contrary the court will pre- sume that the attorney had authority to sign the notice. Steffe v. Old Colony R. Co., 156 Mass. 262, 30 N. E. Rep. 1137. ni. ooMPnriATiov ahd lieh. 12. Ckimpensation, generally.* — Where a railroad company contracts to pay an attorney reasonable fers for assisting in " trials in cases against the company," the right of the attorney to compensation is not * .\ttorney's fees in stock-killing cases, see note, 20 Am. & Eng. R. Cas. 491. See also Animals, Injuries to, O. limited to trials in the narrowest technical meaning of the word, but he is entitled to pay for services rendered in actions where no issues of fact were tried. Louisville, N. A. &• C. R. Co. V. Reynolds, 118 /« Eng. R. Cas. 380, 31 Minn. 239, 17 N. W. Rep. 385. 14. A{;reeiiieiit!4 for Hliare in siib- ject-inatter of litigntioii.— The right of attorneysat-law to contract in good faith for a contingent interest in the subject- matter of the litigation, by way of compen- ."ation for professional services, is now recog- nized. Stewart v. Houston 6- T. C. R. Co., 62 Tex. 246. An agreement between an attorney and his client that the former will, for a certain share of the damages, prosecute a suit against a railroad company to recover for personal injuries is not void as champertous. McDonald v. Chicago &> N. W. R. Co., 29 Iowa 170.— Distinguishing Boardman v. Thompson, 25 Iowa 487. — Followed in Winslow V. Central Iowa R. Co., 71 Iowa 197. The above rule, applied where the attorney was to pay no costs or expenses except his own personal expenses, is not champertous. Winslow V.' Central Iowa R. Co., J I Iowa 197, 32 N. W. Rep. 330. — Following McDonald V. Chicago & N. W. R. Co., 29 Iowa 170; Jewel V. Neidy, 61 Iowa 299. A claim by a father and mother against a railroad company for negligently killing their child does not survive to their legal representative ; and as only claims which survive are assignable, an attorney cannot take an assignment of a one-half interest in a claim against a railroad company which he is prosecuting to recover for the death of a child, and therefore cannot acquire such an interest in the claim as would prevent a compromise between the railroad company and his clients, and the payment of the whole sum to the clients. Texas Mex. R. Co. V. Showalter, 3 Tex. App. (Civ. Cas^ 92. 15. Compensation out of trust ftinds or jussets.— The rule that a neces- sary expens J of the legal management of a trust fund, whether incurred by the trustee or the beneficiary, may be charged upon the fund by a decree in equity, is applicable to the property of a business corporation. Burke v. Concord R. Co., 62 A'. H. 531. Though suit may be brought by second- mortgage bondholders for the appointment of a receiver of a railroad, if a receiver is ap- and - / ^ ATTORNEYS, lO, 17. 5r pointed by the consent of all parties inter- ested, services rendered by the attorneys for the plaintiffs, being for the common good, should oe paid for out of the common assets of the company. Bound v. South Carolina A'. Co., 43 /•>., II ugh- Hun a railroad company for damages caused by negligence cannot by any agreement before judgment give his attorney any such inter- est therein as will defeat a settlement of the suit by the parties themselves. Cough- lin V. New York C. &• H. R. R. Co., 71 A^. Y. 443, 27 Am, Rep. 75 ; reversing 8 Hun 136.— Distinguished in Smith v. Chicago, R. I. & P. R. Co., 56 Iowa 720. Reviewed IN Lamont z/. Washington & G. R. Co., 15 Am. & Eng. R. Cas. 383, 2 Mackey (D. C.) 502. In Texas an attorney has no lien for his fee except the common-law lien, which does not attach to anything which is not in his possession ; therefore an attorney who has agreed to prosecute a damage suit against a railroad, for one-half the damages re- covered, has no lien against the railroad company where his clients compromise the suit and receive the whole of the money, though the company knew of the contract at the time, and knew that the clients were insolvent. Texas Mex. R. Co. v. Shcrwalter, 3 Tex. A pp. {Civ. Cas) 92. 20. Eiiforccnieiit of lien by con- tinuance of litigation. — Where a plaintiff, in an action against a railroad for personal injuries, proposes a compromise, which is effected, .n the absence of any- thing to show collusion leave will not be granted to the plaintiff's attorneys to prose- cute the action, regardless of the settle- ment. Stuanson v. Chicago, St. P. 6>» K. C. R. Co., 35 Fed. Rep. 638. Where there is an agreement between the person suing for personal injuries and the company for a compromise, which is subse- quently set aside, and the case is brought to trial, payment by the defendant of the amount which had been agreed upon does not establish the cause of action so as to dispense with evidence of negligence at a trial by the attorney to enforce his lien. Casucci v. Alleghany &* K. R. Co. , 29 Abb. N. Cas. (N. Y.) '252, 20 N. Y. Supp. 343- Where an attorney for a railroad company has prosecuted a suit for it to judgment, and has a lien thereon for his costs, a re- ceiver of the company subsequently ap- pointed is not entitled to the amount of the judgment ; and if the judgment-debtor pays it to the receiver, with notice of the attorney' s lien, he is not protected, and execution m 520 ATTOKNI'VS, ai. t}. h 11 I !' k f tliat during suid period the defendunt com- pany carried the plaintifT on its said rail- road free of charge on an annual pass issued to him by the receiver of the company. Ohio &* M. R. Co. V. Smith, 5 Ind. App. 36, 31 iV. £•. Kep. 371. An instruction that " no greater fee would be reasonable against a wealthy man or cor- poration than a poor man for the same ser- vices " was properly refused, in an action by an attorney to recover counsel fees from u corporation, where tliere was no evidence as to the wealth of the parties and no such issue was made. International 6- G. N. R. Co. V. Clark, 48 Am. » M. R. Co. v. Smithy 5 Ind. App. 36, 31 A^. E. Rep. 371. An attorney-at-law sued a railroad com- pany for professional services based upon the following account : To services in raising subsidy at W f 1,000 Examination of charter and correction of same 100 Drawing subscription contract in June, 1889 100 Drawing bond for $40,000 R. R. Co. to directors and Commercial Club 350 Various questions under law of corpora- tions and tlie Texas R. \\ . act during July, Aug., and Sept., 1889 500 •1.950 Held, that the account was not sufficiently explicit to require the company to plead thereto. Weatherford, M. W. &* N. IV. R. Co. V. Granger, ( Tex. Civ. App.) 22 S. W. Rep. 70. ATTOKNliYS, ati, L':{.— AUXILIARY C( ).Ml'ANIi:s, 1. -BAGGAGE, bil IV. FBIVILEOED COMMUNICATIONS. 22. What cuiiiniiiiilcutioiiH are privileged.— An attorney is not obliged to produce ii writing intrusted to liim by his client, or to disclose its contents, without his consent ; but he may be required to state whether he has it in his possession, for the purpose of uuliiorizing the adverse party to Xive parol evidence of its contents. Stokoe V. St. Paul. M. &* M. A\ Co., 40 A/inn. 545. 42 A'. IV. Rep. 482. 23. Wlitit arc not.— The protection which tlic law gives to communications be- tween attorneys and clients does not extend to matters openly communicated ordisclosed in the presence of third parties. So held, where an attorney for a railroad company was required to disclose what company had employed and paid him in certain litigation. Mobile &* M. K. Co. v. Yeates, 67 Ala. 164. To employ physician, sec Mkdkai. Sbrvicu, a. 4. I ATTORNETS' FEES. When allowed, generally, see Costs, I. Constitutionality of statutes allowing, see Animals, Injuries to, 1>. Demand for, in bill of particulars, see Ani- mals, Injukiesto, 027. In stock-killing cases, see Animals, Injuries to, 584. I AUTHORITY. Of attorneys, see Attoknkys, 1-11. — conductor, see Conductor, 1, 12. — president of company, see President, 1-4. — railway commissioners, see Railway Com- missioners, III. — referee, see Reference, 3. — station agents, see Station Aoents, 3-8. To construct tramways, see Tramways, 2. AUXILIARY COMPANIES. 1. Wlio litiblc lor negligence of.— Where aj,'reat railroad company, opcratinga long line of road in the state, aids, as stock- holder or bondholder, or as the guarantor of bonds, another railroad company in con- structing its road, under the provisions of chapter 105, Laws of 1873, si;ch auxiliary company docs not become, on account of such aid, the servant or agent of the parent company; and the parent company is not, on account of being such stockholder or bondholder, or guarantor of bonds, respon- sible for the negligence or other default of the auxiliary company in constructing its road in its own name. Atc/iisoti, T. &-• S. F. R. Co. V. Diwis, 34 Kan. 209, 8 J'ac. Rep. ^30 ; rerersiiig 25 Am. &• Eng. R. Cas. 30,, 34 h'att. 199, 8 Pac. Rep. 146. — DlSTiNOUiSMiNt; Newport & C. B. Co. v. Woolley, 78 Ky. 523.— Explained in Solomon R. Co. v. Jones, 34 Kan. 443. Foi.i.owK.n in South- ern Kansas & P. R. Co. 7>. Towner, 41 Kan. 72,21 Pac. Rep. 221. Quoted IN Atchison, T. & S. F. R. Co. V. Cochran, 41 Am. tV Eng. R.Cas. 48, 43 Kan. 225, 7 L. R. A. 414, 23 Pac. Rep. 151. AWARD. In condemnation proceedings, when raises estoppel, see Estoppel, II, 2. Of damages for land tnken, see Eminent Do- main, XI, 14, 16. Validity and eilfect, generally, see Arbitra- tion and Award, III. See also Reference. B BAOOAOE. When subject to attachment, see Attach- ment, ETC., 21. I. LIABILITY AS CABBIEB8 07, OEN- EBALLT. 522 1. Wlien Liable as Common Carriers 522 2. Extent and Limits of the Liability 523 3. Baggage on One Train, Owner on Another 525 4. Connecting Lines 526 n. WHAT -VvILL BE DEEMED TO BE BAOOAGE 533 m. COMMENCEMENT AND TEBMINA- TION OF THE LIABILITY 541 1. Delivery to Company, of Checks for Baggage 541 2. Delivery by Company 546 3. Duty of Oivner to Call for Baggage 548 4. Company when Liable as Warehouseman Only 551 5. Transfer Companies 554 Ml BAGGAGE, 1-3. Il a i k • nr. CUSTODY of bagoaoe, etc., by PAUEXOEB 5S4 T. DISOLOSUBE Oil COHCEALMINT or VALVE or comteii ts 558 TL THE OABBIER'8 LIXH UPON BAG- OAOB 560 VII. LIMITATION or LIABILITY 561 Vin. ACTIONS FOR LOSS or BAOOAOX. . . 566 IX. CLOAK ROOMS, PARCEL ROOMS. ... 57$ I. LIABILITY AS CARRIERS Or, GENERALLY. I . JVAen Liiible as Common Carriers, 1. Ill g«iiurttl.* -A common carrier is liable as such for the personal ba^'ga^jc of a passenger delivered to and received by it solely for transportation and not for stor- age, although, for the convenience of the carrier, the passenger consents to some de- lay i 11 the transportation. S/iaw v. Northern Pac. R, Co.,i,u Minn. 144, 41 A'. W^. Rep. 548. As regards the passengers' baggage, rail- road companies, stage proprietors, steam- boat owners, and omnibus proprietors, who carry passengers for hire, are, like common carriers, liable for its loss, unless caused by the act of God or the public enemy. Dibble V. Brown, 12 Ga. 217. A carrier of passengers, by the sale of a passenger ticket, as incident to the contract, without any specific agreement or separate compensation, becomes obligated to carry t he baggage of the passenger to a reasonable amount, and to deliver it at the end of the route to the passenger or his duly authorized agent. Isaacson v. New York C. 'ired, without extra charge, to carr)* personal luggage of certain weight and di- mensions. Williams v. Great Western R, Co., 10 Exch. 15. 2. 'When liable an liiNiirerN.— Car- riers of passengers are responsible for the carriage and safe delivery of such baggage as by custom and usage Is ordinarily carried by travellers, and the payment of the usual fare includes in legal contemplation a com- pensation for the conveyance of such bag- gage. They are insurers of such baggage in tlic same manner and to the same extent as for goods or freight. Oa/^es v. Northern Pac. R. Co., 47 Am. Sr* Eng. R. Cas. 437, 20 Oreg. 392, 26 Pac. Rep. 230. Merrill v. Grinnell, 30 A'. Y. 594. The usual contract of a carrier of passen- gers includes an undertaking to receive and transport their baggage, though nothing be said about it ; and if it be lost, even witliout the fault of the carrier, he is responsible. Hawkins v. Hoffman, 6 Hill (N. Y.) 586.— Quoted in Hopkins v. Westcott,6 Blatchf. (U. S.) 64. Reviewed in Cohen v. Frost, a Duer (N. Y.) 335. A company using steamboats and railroads for the transportation of passengers and their baggage is liable as a common carrier for damages happening to the baggage of passengers from a defect in the vehicles or machinery used, although the company is not chargeable with actual negligence or want of skill, or with want of care in securing th»* safety of the baggage; if injury happens it, nothing will excuse the company bi inevitable accident arising from superhu- man cr.' ses, or from the acts of the enemies of the country. Camden 6- A. R. &* T. Co. V.Burke, 13 Wend. (N. Y.) 611.— Quoted IN Sager v. Portsmouth, S. & P. & E. R. Co., 31 Me. 228, The same rule does not apply if injury happens to the persons of the passengers. In such cases, if the company has done all that human foresight and care can do to insure the safety of the passengers it is not liable to respond in damages. Camden &-A.R.&' T. Co. V. Burke, 13 Wend. {N. Y.) 6i!.— Criticised in Galena & C. U. R. Co. V. Yarwood, 17 111. 509. 3. liiability when that of carriers of goods.* — It is now well settled that * Liability of a carrier of passengers for loss of merchandise intrusted to it by passenger, sea note, 14 L. R. A. 515. \ < I BAGGAGE, 4, 5. 523 in the curriugc of a pusscriKcr's l)a(;gage the carrier incurs the full rcs|)onsiliility of the common carrier of ^;oocls, Louisville, N. A. &* C. R. Co. V. NichoUii, 4 Ind. App. 1 19, 30 A'. E. Rep. 424. Dill v. South Ctiro' Una A'. Co., y Rich. (So. Car.) 158. Where a railroad company receives for transportation, in cars which accompany its passenger trains, property of a passenger other than his baggage, in relation to which no fraud or concealment is practised or at- tempted upon its employes, it assumes, with reference to the property, the liability of a common carrier of merchandise. Hannibal &• St. J. R. Co. V. Swift, 1 2 Wall. ( U. S.) 262, I Aw. Ry. Rep. 434.— Disapproved in Hum- phreys V. Perry, 148 U. S. 627. UlsilN- fJUisHED IN Ffister I/. Central Pac. R. Co., 70 Cal. 169. FoLLOWKD IN Metz v. Cali- fornia Southern R. Co., 44 Am. & Eng. K. Cas. 433, 85 Cal. 329. Quoted in Waldron V. Chicago & N. W. R. Co., i Dak. 351. Reconciled in Roderick v. Baltimore & O. R. Co., 7 W. Va. 54. Reviewed in Blumantle v. Fitchburg R. Co., 127 Mass. 322. If proprietors of railroads, steamboats, stage coaches, and omnibuses, etc., who are engaged in the business of transporting passengers, holding themselves out to the world as persons exercising a public em- ployment, and as being ready to carry goods for hire, receive goods or extra baggage, to be carried for compensation, they are, as to such extra baggage and goods, liable as common carriers. Dibble \. Brown, 12 Ga. 217. 4. Liability of steamboat com- panies.'*' — The provisions of § 7 of the R. & C. Tr. Act, 1854, are by § 16 of the Regu- lation of Railways Act, 1868, extended to the c( .iveyance by water of luggage by rail- way companies using steam vessels for the purpose of carrying on a communication between any towns or ports. Cohen v. South Eastern R. Co., 2 Ex. D. (C. A.) 253. 46 Z./. (Ap, Ex. 417, 3 Ry. *» C. T. Cas. xxv. The question whether a steamboat com- pany is liable as a common carrier of bag- gage was not decided by an evenly divided court. McKee v. Owen, 15 Mich. 115. — Reviewed in LafTreyz/.Grummond,37 Am. & Eng. R. Cas. 235, 74 Mich. 186. 2, Extent and Limits of the Liability. 5. In g^eneral.— A carrier of passengers * See a\so pott, 81. and their baggage is ans\ver;ihlc for the bag- gage if lost, though no distinct price is paid for tr.msporting it, it being included in the ciirr of the passenger. Orange County Bank v. Brown, 9 H'eml. (A". )'.) 85. It is not nfcessary to pay passage-money in advance to render the carrier liable for loss cf baggage ; and it matters not whether the passenger pays for the transportation himself or whether others pay it for him. Van Horn v. Kermit, 4 E. D. Smith (A'. K.) 453- A railroad company is liable for baggage which is lost through the mistake of one of its agents in sending it over a wrong route. Isaacson v. A'cw York C. &*H. R. R. Co., 16 Am. 6- Eng. R. Cis. 188, 94 A'. V. 278, 46 Am. Rep. 142; reversing 25 Hun 350. — Rec- onciled in Talcott V. Wabash K. Co., 50 N. Y. S. R. 423. Reviewed in Poole v. Delaware, L. & W. R. Co.. 35 Hun (N. Y.) 29. A railroad company is not liable for goods of a third party shipped in a trunk of a pas- senger as baggage, where it had no knowl- edge ol such ownership. Gurney v. Grand Trunk R. Co., 37 A^. K S. R. 155, 14 A^. K. Supp. 321, 59 Hun 625. The fact that a passenger pays extra fare on a trunk and informs the baggage-master of its contents, but does not inform him that certain articles in it belong to another per- son, is not sufficient to constitute an im- plied contract that the company will carry such articles as freight, so as to render the carrier liable to the owner in case of loss. Talcott V. tVabash R. Co., 50 A'. K. .S". R. 423, 66 Hun 456, 21 A'. V. Supp. 318.— Re- viewing Stoneman v. Erie R. Co., 52 N.Y. 429 ; Sloman v. Great Western R. Co., 67 N.Y. 211. If a common carrier of passengers and of goods and merchandise has reasonable ground for refusing to receive or carry passengers applying for passage, and their baggage and other property, he is bound to insist, at the time, upon such ground, if de- sirous of avoiding responsibility. If, not thus insisting, he receives the baggage and other property, his liability is the same as though no ground for refusal existed. Han- nibal P. R. Co. v. Conklin, 16 Am. 6- Eng. R. Cas. 1 16, 32 Kan. 55, 3 Pac. Rep. 762. TI.o failure of a carrier to deliver baggage to the owner on demand, prima facie es- tablishes negligence and want of due care, and casts the onus of accounting for it on the carrier. Burnell v. New York C. R. Co., 45 A', y. 184, 6 Am. Rep. 61.— DISTIN- GUISHED IN Magnin v. Dinsmore, 3 J. & S. (N. Y.) 182. If no explanation is given of the disap- pearance of baggage before delivery, the carrier is liable for the value. Pelland v. Canadian Pac. R. Co., 7 .\font. L. R. {Sup. Ct.) 131. The proof showed that plaintiff's baggage was delivered to the defendant company in good condition ; that it carried it over its road and delivered it to a connecting line, which delivered it to plaintiff damaged from having been wet. It was raining at the time it was delivered to defendant, and the bag- gage remained for some time in a shed not well covered, and the mould on the articles indicated that they could not have gotten wet later than the delivery to the second carrier. Held, that there was sufficient evi- dence to justify a finding that it was dam- aged while in defendant's hands. Estes v. St. Paul, M. &* M. R. Co., 27 N. Y. S. R. 594, 55 Hun 605, 7 A'. Y. Supp. 863. 7. Law of place.* — Where baggage is delivered to a company in Pennsylvania to be carried into New York, if the company fails to deliver in New York its liability will be determined by the law of that state and • See also post, 101. not by the law of Pennsylvania. Curtix /. Delaware, L. 6- W. R. Co., 74 N. Y. 1 16. The liability of a New Jersey railroad for loss of baggage between Philadelphia and a point in New Jersey is measured by the law of New Jersey; and this though the baggage is carried across the Delaware river, the common line between the two states, where both exercise equ»l jurisdiction. Brown v. Camden &* A. R. Co., 83 Pa. Si. 316, 15 Am. Ry. Rep. 421. 8. Conversion by carrier.— A com- mon carrier who has received the baggage of a passenger for transportation and re- fuses to deliver it at the place of destina- tion, cannot relieve himself of liability for its loss by tendering the baggage more than a year after the demand therefor was made. Lake Shore &* M. S. R. Co. v. Warren, 21 Am. &» Eng, R. Cas. 302, 3 Wyom. 134, 6 Pac. Rep. 724. A conductor took up a satchel, belonging to a passenger, which had been left in a car and delivered it to the receiver of the road, who delivered it to the wrong person . Held, that the company was liable as for a con- version. Morris v. Third Ave. R. Co., t Daly (N. Y.) 202, 23 How. Pr. 345. A passenger who was travelling with his family asked the baggage-master at the place of starting to check several trunks as baggage. Th.'' baggage-master claimed an extra charge . nich the passenger refused to pay, and demanded his trunks, which were refused, the baggage-master claiming that they were already in the car and that he could not get them out before time for the train to start, but on this point there was a conflict of evidence. The passenger did not leave on the train, but went to the pres- ident of the company and obtained an order directing a delivery of the trunks at an in- termediate station. The day following he went to the intermediate station and de- manded his trunks, but was informed that they had gone on. The company claimed that the passenger assented to this, but on this point also there was a conflict of evi- dence. Before the passenger reached the end of the route the trunks had been re- ceived and placed in the baggage-room, where they were destroyed by fire. Held, that there was a conversion at the starting- point, and that the passenger had not so far authorized or approved of the transporta- tion of the trunks to the place where they were destroyed as to prevent his recover- BAGGAGE, 9-13. 525 ing full damages. McCormick v. Pennsyl- vania C. R. Co., 21 Am. <&* Eng. R. Cas. 296, 99 A^. Y. 65, I A^. E. Rep. 99, 52 Am. Rep. 6; terming 30 Hun 87, w;««. But see former appeal, where it was held on slightly different evidence that the passenger had so far as- sumed control of the baggage as to prevc nt a recovery of more than nominal damages for the original conversion. McCormick v. Pennsylvania C. R. Co., 80 N. Y. 353.— DIS- TINGUISHING McCorn'ick v. Pennsylvania C. R, Co., 49 N. Y. 303. Revifwing Hiort V. London & N. W. R. Co., 48 L. J. Exch. 545- O. liiability for ba^{;age carried free. — Where a common carrier undertakes to carry baggage without reward it is liable only as a gratuitous bailee for bad faith or gross negligence. Rice v. Illinois C. R. Co., 22 ///. App. 643.— Reviewing Steers v. Liverpool, N. Y. & P. S. Co.. 57 N. Y. 1. But the rule is different as to carriers of free passengers. Flint &* P. M. R. Co. v. Weir, yj Mich, in.— Distinguished in Way v. Chicago, R. I. & P. R. Co., 64 Iowa 48, 52 Am. Rep. 431. 10. Delay or detention of bae- ga|;e. — The act of the 13th Gen. Assembly of Iowa, ch. 165, providing "that for every day's detention to travellers in consequence of damage for delay of baggage and neces- sary delay in suit for same, common carriers shall pay to the person so delayed not less than $3, which shall be added to the judg- ment for damage to property, should the action be sustained," does not authorize a recovery for delay caused to a traveller by the mere detention of baggage, but only for such delay as results from damage to the baggage. Anderson v. Toledo, W. &• IV. R. Co., 32 Iowa 86, 10 Am. Ry. Rep. 16. 11. Effect of non-compliance with carrier's rules by passenger.— A car- rier is not liable for the loss of baggage which occurs through the failure of a pas- senger to comply with a reasonable regula- tion of the carrier. Gleason v. Goodrich Tramp. Co., yi W^/j. 85.— Quoting Macklin v. New Jersey Steamboat Co., 7 Abb. Pr. N. S. (N. Y.) 241, 9 Am. Law Reg. N. S. 239. A common carrier will not be relieved from liability for loss of baggage on the ground that the passenger neglected or re- fused to comply with a reasonable regulation of the carrier, unless it appears that the pas- senger had knowledge of such regulation, or that it was so notorious and universally known that he ought to have known of it. Macklin v. A'ezv Jersey Steamboat Co.,j Abb. Pr. N. S. (^N. K.) 229. 12. Sudden and uuforMcen acci- dents.— It is a complete defense to an action against a common carrier for loss of baggage to show that the baggage was destroyed by a flood of such unprecedented character as could neither have been anticipated nor ))r(> vided against, and which amounted to an act of God. Long v. Pennsylvania R. Co. 147 Pa. St. 343, 23 Atl. Rep. 459. Where an accident, b' vhich baggage is lost in the hands of w omnion carrier, is not due to the failure o\ any of the appli- ances of transportation, but to flood, amount- ing to an act of God, there is no presumption of negligence which will shift the burden of proof upon the carrier to show that he was not negligent, l^ong v. Pennsylvania R. Co., H7 Pa. St. 343, 23 Atl. Rep. 459.— D1.STIN- GUISHING Spear z*. Philadelphia, W.& B. R. Co., 119 Pa. St. 61. Following Laing v. Colder, 8 Pa. St. 482 ; Pennsylvania R. Co. V. MacKinney, 124 Pa. St. 462. In such a case, where there is no evidence of want of care on the part of the employes of the common carrier, it is proper for the court to give binding instructions for the defendant. Long v. Pennsylvania R. Co., 147 Pa. St. 343, 23 Atl. Rep. 459. Trunks containing samples were received at a depot and checked for transportation, but before they had departed the depot was flooded by the sudden rise of a river, and the samples were injured. Held, that the owner's right to recover depended upon whether the rise of the river was so sudden that the trunks could not have been moved by the exercise of reasonable and proper dili- gence ; but that, having been received with knowledge of their contents, if the owner was entitled to recover at all he might re- cover the value of the samples. Stroussv. IVabas/i, St. L.&*P. R. Co., 17 Fed. Rep. 209. 3. Baggage on One Train, Owner on Another. 13. Company not liable where owner and baggaKe are on different trains. — A ticket entitles a passenger to safe transportation of himself and bagpage on the same train, and nothing more. />///• menthal v. Maine C. R. Co., 34 Am. &• Eng. R. Cas. 247, 79 Me. 550, 5 N. Eng. Rep. 355, II Atl. Rep. 605. The owner of a portmanteau, who allows his servant to carry it hy train as his own I a 626 BAGGAGE, 14-17. personal luggage, the servant taking and paying for his ticket, and the owner travel- ling by a later train, cannot maintain an ac- tion against the company for the loss of the portmanteau. Becker v. Great Eastern R. Co., L. R. 5 Q. B. 241, 39 L.J. Q. B. 122, 3 Ry, 6- C. T. Cas. xx, 18 IV. R. 627, 22 L. T. 299. The obligation of a railroad company is to take whatever is delivered and received as baggage, from a passenger, into the baggage- car of the passenger train in which the pas- senger takes his passage, and to take it along with and deliver it to the passenger at the place of destination, in the usual manner of transporting and delivering baggage. The obligation is the same whether the baggage is within the quantity allowed to a passenger to be carried without extra charge or whether it is an extra quantity, for which an additional charge is made. If it be taken as the baggage of the passenger, whether Ok- dinar>' or extra, it is to be carried with the passenger, unless there is some agreement to the contrary. Glasco v. New York C. R. Co., 36 Barb. (N. Y.) 557. The plaintiff sent by a passenger train a quantity of merchandise, expecting to go himself in the same train, but did not. The goods were lost without any gross negligence in the carrier, or any conversion by him. Held, that the carrier was not liable for the loss. Collins V. Boston &• M, R. Co., 10 Cush. {Mass.) 506.— Approved in Michigan C. R. Co. V. Carrow, 73 111. 348. Reconciled IN Wilson V. Grand Trunk R. Co., 57 Me. 138. 14. BafiTgrage goes asi)reight in such cases. — Carriers are only obliged to carry baggage, as such, where it goes on the same train with the passenger ; and if received later and carried it goes as freight, and the carrier is entitled to compensation. Graf- fam V. Boston &* M. R. Co., 67 Me. 234, 1 5 Am. Ry. Rep. 372.— Following Wilson v. Grand Trunk R. Co., 56 Me. 60, 57 Me. 138. —Explained in Blumantle v. Fitchburg R. Co., 127 Mass. 322. — Wilson v. Grand Trunk R. Co., 57 Me. 138. Wilson v. Grand Trunk R. Co., 56 Me. 60. — Applied in Curtis V. Delaware, L. & W. R. Co., 74 N. Y. 116. Followed in Graffam v. Boston A M. R. Co., 67 Me. 234. 15. Exception to tlie rule —Where it ij tlic settled law that passengers arc only entitled to have their baggage carried where it goes on the same train with them, a hus- band may recover for loss of baggage be- longing to himself and family, where they are all passengers, and the baggage goes on the train with his family, but he goes on another train. Curtis v. Delaware. L. &* W. R. Co., 74 ^- Y- 116.— Applying Wil- son V. Grand Trunk R. Co., 56 Me. 60; Beclier v. Great Eastern R. Co., L. R. 5 Q. B. 241 ; Stimson v. Connecticut River R. Co., 98 Mass. 83 ; Belfast & B. Co. v. Keys, 9 H.ofL. Cas 556. Distinguishing Mag- nin V. Dinsmore, 62 N. Y. 35. IG. Coiupuuy liable whether ptis- seiiger travels on suine train or not. — A carrier is liable for lost baggage whether it goes on the same train with the passenger or not. Wilson v. Chesapeake &* O. R. Co., 21 Gratt. (F<7.)654. If a passenger on a railroad pays his fare, and his baggage is sent forward pursuant to an agreement and as a part of the considera- tion moving from the company for the fare prepaid by the passenger, the same rules of care and diligence on the part of the com- pany apply whether the baggage is for- warded on the same, the preceding, or a subsequent train. Warner v. Burlington &* M. R. R. Co., 22 Iowa 166. Upon applying to a baggage-room to have his trunk checked, a passenger was told by an agent that it was locked up then, but would be sent on by the next train. The passenger inquired for his trunk on the day after his arrival at destination and on the following day, but did not find it. On the third day it was found in the passenger waiting-room, but broken open and the con- tents stolen, it appearing that the room had been broken open at night. Held, that there was such negligence on the part of the company in failing to forward promptly, and in not placing it in the proper place for storage, as to make it liable for the loss of the contents. Warner v. Burlington &* M. R.R. Co., 22 Iowa 166. 4. Connecting Lines. 17. Their liability, generally.*— Baggage checked over connecting lines is subject to the contract made by the pas- senger with the first company, and this is not affected by a charge at the starting- point for overweight. Gulf, C. &* S. F. R. Co. * Liability of connecting lines for loss of bag- gage: when companies jointly liable, see 44 Am. & Eng. R. Cas. 436, abstr. r BAGGAGE, 18, 10. 537 V. lom, 3 Tex. Civ. App,(>\% 22 5. W. Rep. lOII. Where three separate railroad companies owning distinct portions of a continuous rail- road between two termini run their cars over the whole road, employing the same agents to sell passage-tickets and receive luggage to be carried over the entire road, an action may be maintained against one of them for the loss of luggage received atone terminus to be carried over the whole road. Hart V. Rensselaer &* S. R. Co., 8 A^. Y. 37.— Distinguished in Atchison, T. & S. F. R. Co. V. Roach, 27 Am. & Eng. R. Cas. 257, 35 Kan. 740 ; Milnor v. New York & N. H. R. Co., S3 N. Y. 363. Followed in Quimby V. Vanderbilt, 17 N. Y. 306; Buffett v. Troy & B. R. Co., 40 N. Y. 168; Gary v. Cleve- land & T. R. Co., 29 Barb. (N. Y.) 3, ; Schroeder v. Hudson River R. Co., 5 Duer (N. Y.) 55 ; Louisville & N. R. Co. v. Weaver, i6Am. & Eng. R. Cas. 218,9 Lea (Tenn.) 38. Reviewed in Peterson %i. Chicago, R. I. & P. R. Co., 80 Iowa 92, 45 N. W. Rep. 573 ; Barter v. Wheeler, 49 N. H. 9; Gray V. Jackson, 51 N. H. 9 ; Dillion v. New York & E. R. Co., I Hilt. (N. Y.) 231, 12 Abb. U. S. 479 ; Check v. Little Miami R. Co., 2 Disn. (Ohio) 237. PlaintifT bought a through ticket, by rail to a certain point and thence by boat, and had his baggage checked accordingly. At the point where he took the boat, the rail- road agent, instead of delivering the baggage to the boat delivered it to another road, which carried it to the place of destination, where it was lost. Held, that such agent was in no sense the agent of the passenger so as to bind him by his act. Fairfax v. New York C. &* H. R. R. Co., 73 A^. Y. 167 ; affirming 11 /.&- S. 18 ; referring to 67 N. Y. II, which reversed 5/. . Wabash R. Co.. 50 N. Y. S. R. 423. Dis- tinguished in Milnor?'. New York & N. H. R. Co., S3 N. Y. 363. Followed in Brown v. Canadian Pac. R. Co., 3 Man. 496. ■^M M m 1! .•I i :;:i 528 BAGGAGE, 20. I:: ir a I '•( i Reviewed in Gray v. Jackson, 51 N. H. 9. —Atchison, T. &* S. F. R. Co. v. /ioac/t, 27 Am. &* Eng. R. Cas. 257, 35 A'an. 740, 12 Piu. Rep. 93. Croft v. Baltimore and O. R. Co., i MacArth. {D. C.) 492. Baltimore Eng. R. Cas. 411, 75 Ala. 587.— Explaining AND modifying South & N. Ala. R. Co. V. Wood. 71 Ala. 215. Where it is the custom of a railroad at the end of its route, and where it connects with another carrier, to keep baggage in its room to be delivered to the agents of the ..ext carrier, baggage arriving in the night and left for a few hours, to be reshipped, remains in the company's hands as carrier and not as warehouseman. Ouimit v. Hen- shau; 35 Vt. 605.— Reviewed and dis- tinguished IN Blumenthal v. Brainerd, 38 Vt. 402. The initial carrier is not liable for bag- gage lost after it is delivered to the second carrier simply because it sells a through ticket and checks biiggage through, and the two carriers divide the money received, where the ticket was in two parts easily detached from each other, and where there was nothing in common between the two roads except the mere arrangement to sell til rough tickets. Milnor v. New York &» N. H. R. Co., 53 A^. Y. 363, S Am. Ry. Rep. 381 : affirming 4 Daly 355.— DISTINGUISH- ING Quimby v. Vanderbilt, 17 N. Y. 306; Hart V. Rensselaer &. S. R. Co., 8 N. Y. 37 ; Weed V. Saratoga & S. R. Co.. 19 Wend. I n R 0.-14. 534 ; Gary v. Cleveland & T. R. Co., 29 Barb. 35; Burnell v. New York C. R. Co., 45 N. Y. 184. Where baggage arriving at a union depot is placed where the baggage for the next connecting line is usually put, and there destroyed by fire, there is no such delivery to the next carrier as to relieve the initial carrier from liability. Hyman v. Central Vt. R. Co., 49 N. Y. S. R.313, 66 Hun (N. Y.) 202, 21 N. Y. Supp. 119. — Reviewing Isaacson v. New York C. & H. R. R. Co., 94 N. Y. 278. A delivery of baggage at the end of the passenger's journey, either to him or to his authorized agent, terminates the liability of the 'company as a common carrier; but a delivery at the terminus of the defendant's road to the baggage-master of an inde- pendent steamboat company, who, by agree- ment between the railroad and steamboat companies, always entered the defendant's cars and took the baggage-checks of through passengers, giving in exchange for them the checks of the steamboat company, would not discharge the defendant from liability for a loss caused by the larceny of its servants after the delivery of the baggage to the baggage-master of the boat, unless the baggage-master was the plaintiff's authorized agent to receive the bafrgage ; which, being a controverted question, is for the jury. Mobile &» 0. R. Co. v. Hopkins, 41 Ala. 486. 21. Right of initial carrier to limit liability to its own route.'"— Where a railroad company sells a ticket for the car- riage of a passenger over its line and other connecting lines, it may, by a stipulation printed on the ticket and agreed to by the passenger, limit its liability for injury to his baggage to such injury as may occur on its own line. Peterson v. Chicago, R. J. &* P. R. Co., 80 Iowa 92. 45 A^. W. Rep. 573. A condition printed on a through ticket that the initial carrier only acts as the agent of the next carrier in selling the ticket, and will not be liable beyond its own line, is suf- ficient to advise a passenger that such is the fact ; and in such case the duty of the ini- tial carrier as to the passenger's baggage is fully discharged when it is safely carried over its line and delivered to the next carrier. Nealon v. Grand Trunk R. Co., 5 N. Y. S. R. 256, 42 Hun 651. Pennsylvania *Sct aXno pott, 95-108. 530 BAGGAGE, 22, 23. C. R. Co. V. Schwarzenberger, 45 Pa. St. 208. —Distinguishing Camden & A. R. Co. v. Baldauf, 16 Pa. St. 67.— Approved in Har- ris V. Howe, 39 Am. & Eng. R. Cas. 498, 74 Tex. 534. Reviewed in Mullarkey v. Philadelphia, W. & B. R. Co., 9 Phila. (Pa.) 114. Railroad companies have a right to con- tract, in the sale of through tickets, that they will only be liable for loss of baggage upon their own lines; and a passenger buy- ing a ticket with such conditions printed on its face is bound by it, though he may not have read it, as the initial carrier would not be bound anyhow in the absence of an ex- press contract, or something like a partner- ship arrangement between the roads. Cen- tral Trust Co. V. Wabash, St. L. &* P. R. Co., 31 Am. &* Eng. R. Cas. 103, 31 Fed. Rep. 247. 22. Liability of intermediate car- rier. — Each carrier is liable for the result of its own negligence, and, although the first carrier may have assumed the responsi- bility for the transportation to a point be- yond its own route, any of the subsequent or connecting lines to whose negligence the loss or injury can be traced will also be liable to the owner. Atchison, T. &* S. F. R. Co. V. Roach, 27 Am. &• Eng. R. Cas. 257i 35 R^t. 740, 12 Pac. Rep. 93. LouiS' ville &* N. R. Co. v. Weaver, 16 Am. &* Eng. R. Cas. 218, 9 Lea (Tenn.) 38. An intermediate carrier may be liable for loss of baggage of a through passenger, where the proof shows clearly that it came into its possession, and the proof tending to show that it delivered it to the next con- necting line is not legally sufficient for that purpose. Baltimore Steam Packet Co. v. Smith, 23 Md. 402. Where baggage has been checked over more than one road, if it is not found at the end of the first line by the agents of the second they should at once give notice to the owner or the initial carrier, anc failing to do so, the second carrier will be liable. Davis V. Michigan S. &» N, I. R. Co., 22 ///. 278.— Distinguished in Chicago, R. I. & P. R. Co. V. Clayton, 78 111. 616. Where baggage is carried over three lines and delivered in a damaged condition, and it appears that it was in good condition when delivered by the first company to the second and by that to the third or delivering company, mere proof of its bad condition when delivered will not cast on the inter- mediate company the burden of showing that it was in good condition when delivered by it to the delivering company. Montgomery &• E. R. Co. V. Culver, 22 Am. &* Eng. R. Cas. 411, 75 Ala. 587. An arrangement between three com- panies, whose roads are connected, to sell through tickets, and to check through bag- gage, each being entitled only to the fare for transportation over its own line, does not render one company liable for a loss oc- curring on another's line ; and the interme- diate company is only bound to receive from the initial company, and safely carry over its own road, and deliver to the terminal company. Montgomery &* E. R. Co. v. Cul- ver, 22 Am. &* Eng. R. Cas. 41 1, 75 Ala. 587. —Quoting Michigan C. R. Co. v. Min- eral Springs Mfg. Co., 16 Wall. (U. S.) 318; Mobile & G. R. Co. v. Copeland, 63 Ala. 219. Reviewing Lindley v. Richmond & D. R. Co., 88 N. Car. 547. Where a connecting line over which an* other company issues through tickets re- ceives baggage of a through passenger to forward it, it commits a breach of duty in neglecting to do so, for which it is respon- sible apart from any question of contract. Hooper v. London &* N. W. R. Co., 50 L.J. Q. B. D. 103, 43 L. T. N. S. 570, 29 W. R. 241. 23. Last carrier, when liable.*— Where a passenger purchased a through ticket over a line of railroads, having a cou- pon attached for each road, and checked his baggage through to his destination, if, upon his arrival, it was found to be lost, he could hold the last road of the line responsible therefor. Savannah, F. &* W. R. Co. v. Mcintosh, 27 Am. &* Eng. R. Cas. 269, 73 Ga. 532.— Following Hawley v. Screven, 62 Ga. 347 ; Wolff v. Central R. Co., 68 Ga. 653.— Applied in International & G. N. R. Co. V. Foltz, 3 Tex. Civ. App. 644. Re- viewed IN Peterson v. Chicago, R. I. & P. R. Co., 80 Iowa 92, 45 N. W. Rep. 573. Where a railroad company sells a through ticket and checks baggage over its own and connecting roads, and, in pursuance of the contract thus made, the passenger is trans- ported to his destination, and his baggage is delivered to him by the last carrier, with the lock broken, and a portion of the contents * Liability of last carrier of connecting lines fur baggage lost or injured, see note, 37 Am. ft Eng. R. Cas. 271. BAGGAGE, 24. 631 stolen, he is entitled to recover damages from the last carrier, unless it shows that the baggage was delivered in the same con- dition as received. Lin v. Terre Haute &* I. R. Co., lo Mo. App. 125.— Distinguish- ing Wyman v. Chicago & A. R. Co., 4 Mo. App. 35 ; Watkins v. Terre Haute & I. R. Co., 8 Mo. App. 570.— Followed in Jacobs V. Tutt, 33 Fed. Rep. 412. Where the last of connecting carriers de- livers baggage in a damaged condition, the presumption prevails that the baggage con- tinued in the same condition as when de- livered to the first carrier, and casts on the last carrier the burden of showing its con- dition when received. Montgomery &* E. R. Co. v. Culver, 22 Am. &* Eng. R. Cas. 411, 75 Ala. 587. Lin v. Terre Haute &• /. R. Co., 10 Mo. App. 125. Where a passenger buys a through ticket with coupons for each road, where the last carrier receives tiie coupon for its road, and carries the passenger, and delivers to him a check for his baggage, and delivers a part of it, it will be liable fur the portion not deliv- ered or lost. ATcCormick v. Hudson River R. Co., 4 E. D. Smith (N. V.) 181.— Ap- PLIKD IN Louisville & N. R. Co. v. Weaver. 16 Am. & Eng. R. Cas. 218, 9 Lea (Tenn.)38. 24. Lnst carrier, when not liable. — Ga. Code § 2084, providing that the last of a connecting line of railroads over which goods are shipped which receives them as in good order is liable to the consignee, does not apply to baggage of a passenger checked and accompanying him on his passage. IVolJ" V. Centra! R. Co., 6 Am. &* Eng. R. Cas. 441. 68 Ga. 653, ^lAtn.Rep. 501.— Fol- lowed IN Savannah, F. & W. R. Co. v. Mcintosh, 27 Am. & Eng. R. Cas. 269, 73 Ga. 532. Mere failure on the part of the last con- necting carrier to deliver baggage is not of itself proof of negligence, so as to make it liable. Stimson v. Connecticut River R. Co., 98 Mass. 83. Where plaintifl travels over several con- necting lines on a coupon ticket, and has baggage checked througii, the last carrier is not liable for its loss without some evidence to show that it came into its hands. Kess- ler V. i\',w York C. (S- H. R. R. Co., 61 A'. Y. 538, 1 2 Am. Ry. Rep. 1 34 ; affirtning 7 Lans. 62. — Following Milnor v. New York & N. H. R. Co., 53 N. Y. 363.— Reviewed IN Poole V. Delaware. L. & W. R. Co., 35 Hun (N. Y.) 29; Wardw. New York C. & H. R. R. Co., 56 Hun (N. Y.) 268, 30 N. Y. S. R. 604. 9 N. Y. Supp. 377- In the absence of evidence to show a joint contract between connecting roads, one road is not liable for loss of baggage before it reaches its line. EeUier v. Colum- bia &* G. R. Co., 27 Am. &* Eng. R. Cas. 264, 21 So. Car. 35, 53 Am. Rep. 656.— DIS- TINGUISHING Bradford v. South Carolina R. Co., 7 Rich. (So. Car.) 201, Where, by traffic arrangements between two companies, passengers are ticketed through, over both lines, there is one entire contract between the passenger and the company issuing the ticket. Accordingly the passenger has no cause of action against the second company for the loss of luggage on its line. Mytton v. Midland R. Co., 4 H. . {Civ. Cas'). 724. —Distinguished in Atchison, T. &S. F. R. Co. V. Roach, 27 Am. & Eng. R. Cas. 257, 35 Kan. 740. Reviewed in Peterson v. Chicago, R. I. & P. R. Co., 80 Iowa 92, 45 N. W. Rep. m.— Missouri Pne. R. Co. v. Slater, 3 Tex. App. (Civ. Cas.) 25. As to through baggage, it is the duty of the company receiving it, and selling a through ticket, to sec that the baggage is delivered at the end of the route, and its duty does not cease until this is done. If it delivers to a connecting line, the latter nets as its agent in the further carrying and delivering. Lin v. Terre Haute &* I.R. Co., 10 Mo. App. 125. Plaintiff purchased a through ticket and had his baggage checked through, but ar- rived at his place of destination over a con- necting line. Two days afterward he de- manded his baggage, but it could not be found. It appeared that the company sell- ing the ticket had delivered the baggage to the connecting carrier, who had carried it to its place of destination, but that it was lost about the baggage-room. Held, that the second company was but the agent of the first, and that the first was liable either as carrier or warehouseman. Burnell v. Neiv York C. R. Co., 45 N. Y. 184, 6 Am. Rep. 61. —Limiting Roth v. Buffalo & S. L. R. Co., 34 N. Y. 548.- Applied in Talcott v. Wa- bash R. Co., so N. Y. S. R. 423. DiSTiN. guished in Price v. Oswego & S. R. Co., 50 N. Y. 213; Milnor v. New York & N. H. R. Co., 53 N. Y. 363. Followed in Gross- man V. Fargo, 6 Hun (N. Y.) 310; Burgevin V. New York C. & H. R. R. Co., 23 N. Y. Supp. 415 ; Brown v. Canadian Pac. R. Co., 3 Man. 496. Suit was instituted against the Texas & Pacific Railway for baggage lost at some unknown point between Memphis and Dallas, through checks for said baggage being delivered to plaintiff at Memphis by an agent of the Memphis and Little Rock Rail- road, over three uniting lines, including the Texas and Pacific Railway. Held, that the check delivered at Memphis was the check of appellant railroad, as well as of the other com- panies, and that the contract w;is appellant's contnict, and it was bound by it. Texas &» P. R. Co. v. Fort, 9 Am. H. R. R. Co., 8/. &* S. {N. y.) 128.— Following Coleman v. Livingston, 4 J. & S. 32. 28. Effect of recognition of ticlcet solil by aiiotlicr road.— Where two rail- roads connect, and sell through tickets which are recognized by each road, they are jointly liable for through baggage that may be lost. S/. Louis, I. M. 6- S. R. Co. v. Hindsmun, i Tex. App. {Civ. Cas.) 82. Where a passenger ticket entitles the holder to travel over different lines of road to his place of destination, to which his baggage is checked, all of them recognizing the validity of the ticket, each company into whose possession the baggage may come will be liable for its loss while in the posses- sion of such company. Chicago &• R. I. R. Co. V. Fa hey, 52///. 81. Where a passenger seeks to hold one of several roads in his line of transit liable for the loss of his baggiige, the recognition of his ticket, purchased at the beginning of his trip, by the conductor of such road is, in effect, an admission that it was issued by some person having competent authority to bind the company ; and in such case it is immaterial whether the ticket was issued by a special agent of the company sought to be held liable or by the ticket agent of some other company. Chicago 6r» R. I. R. Co.v. Fahey,^iIlL 81. II. WHAT WILL BE BEEMBD TO BB BAGOAOE. 20. What is included within the term *• bafff^age,'* generally.*— A car- *What constitutes baggage, see notes. 16 Am. & Eng. R. Cas. 131 ; 33 Id. 486; 31 Id. 97; 34 ricr of passengers for hire is, at comnioii law, only bound to carry their personal lug- gage. Great Northern R. Co. v. Sheperd, 8 Exch. 30, 7 Railw. Cas. 310, 21 L. /. Exch. 286. Under the California Civil Code the term " luggage " means the same as the term " baggage." Pfister v. Central Pac, R, Co., 70 Cat. 169, II Pac. Rep. 686. A carrier of passengers is liable only for a loss of wearing apparel or personal effects of the passenger, and for money enough to de- fray his travelling expenses. Dunlap v. In- ternational Steamboat Co., 98 Mass. 371. Whit more v. Steamboat Caroline, 20 Mo. 513. The baggage which a passenger is entitled to have carried is limited to a reasonable amount, which may include such articles as are necessary and convenient for the per- sonal use of the passen^rr, and such as pas- sengers usually carry. New Orleans, J. ^^ G. N. R. Co. v. Moore, 40 Miss. 39. Mctz \. California Southern R. Co., 44 Am. &■• /-"//.v . R. Cas. 433, 85 Cal. 329, 24 Pac. Rep. 6\v. — F'OLLOWINO Hannibal & St. J. R. Co. t'. Swift, 12 Wall. 2y2.—Hutchittgs v. Western &* A. R. Co., 25 Ga.6\. As a rule any article which is carried by a passenger for personal use and conven- ience and according to the want ol a par- ticular class of travellers to which he belongs, and carried with reference to im- mediate wants, is properly a part of his bag- gage. Gleason v. Goodrich Transp. Co., 32 Wis. 85.— Quoting Macrow v. Great West- ern R. Co., L. R. 6 Q. B. 622 ; Hopkins v. Westcott, 6 Blatchf. (U. S.) 64. Reviewing Phelps V. London & N. W. R. Co., 19 C. B. N. S. (115 E. C. L.) 221-— Macrow v. Great Western R . Co., L. R. 6 Q. B. 612, 40 L. J. Q. B. 300, 24 L. T. 618, 19 W. R. 8, 3 Ry. &* C. T. Cas. xix. A carrier is liable for the loss of such arti- cles of baggage as passengers usually carry for their personal use, comfort, instruction, amusement, or protection, considering the object and length of the journey. Parmt- lee v. Fischer, 22 ///. 212.— Following Davis V. Michigan S. & N. I. R. Co., 22 111. 278. The term baggage may also include trav- elling articles, a reasonable amount, which may be purchased while abroad for the use of the traveller's family at home, such as or- 1 ;a Id. 249; 47 Id. 444; 7> Am. Dec. 158; 8 Am. Rkp. 303; 3 L. R. A. 346, II Id. 759. 534 BAGGAGE, 3<), :il. 't ?■' ': i* n* dinarily men ure in the habit u( bringing to their families in that way. /ones v. Priestfr, I Ttx. A ftp. {Civ. Cas.) 326. But it does nut extend to articles pur- chased for strangers. Dexter v. Syracuse, B. 6- A'. J'. R. Co., 42 A', y. 326.— Dis- I'lNuuiSHiNU Pardee!/. Drew, 25 Wend. 460. Following Merrill v. Grinnell, 30 N. Y. 594. 30. Wliut \» or Ih not baggage a questiou I'or tlic Jury.— What articles of property, as to quantity and value, con- tained in a trunk may be deemed baggage within the rule is to be determined by the jury according to the circumstances of the case, subject to the power of the court to correct any abuse. Oakes v. Northern Pac. K. Co., 47 Am. &* Eng. R. Cas.^n, 20 Oreg. 392, 2SJ'ac. Rep. 230. Maurt'tz v. New York, L. E. 6- W. R. Co., 21 Aw. &• Eng. R. Cas. 286, 23 Fed. Rep. 765. What articles are usually carried by pas- sengers is a question to be left to the jury, under the direction of the court, upon a consideration of the time of life of the trav- eller, his habits, vocation, and tastes, the length of his journey, and whether he trav- els alone or with his family, and of the usage of the time and place, and all the cir- cumstances of each case. Dibble v. Brown, 12 Ga. 217. — Quoting Orange County Bank V, Brown, 9 Wend. (N. Y.) 1 15 ; Hawkins v. Hoflman, 6 Hill (N. Y.) 589. The question as to what is etnbraced in the term baggage is one made up of both law and fact ; whether certain classes of articles usually transported by the different modes of public conveyance should be in- cluded within the term or not is a question of law ; but when the question is as to the quantity of the articles generally coming under that denomination, then it becomes a question of fact to be found by the jury. Jones V. Priester, i Tex. App. {Civ. Cas.) 326. Where there is a dispute as to whether articles lost fall within the meaning of pas- senger's personal baggage or not, it is a mixed question of law and fact to be deter- mined by the jury upon the proper instruc- tions of the court. Texas &» P. R. Co. v. Ferguson, 9 Am. &* Eng. R. Cas. 395, i Tex. App. {Civ. Cas.) 724- To the extent that articles carried by a passenger for his personal use when travel- ling exceed in quantity and value such as arc ordiiiurily or usually carried by |)assen- gcrs uf like station and pursuing like jour- neys, they are not baggage for which the carrier, by common law, is responsible as insurer. But whether a passenger has car- ried such an excess of baggage is not a pure question of law for the sole or final deter- mination of the court, but a question of fact for the jury, under proper guidance as to the law of the case ; and their determina- tion of the facts, no error of law appearing, is not subject to re-examination in this court. New York C. &* H. R. R. Co. v. Frahff, 100 U. S. 24, 21 Am. Ry. Rep. 428. — DIS- APPROVED IN Humphreys v. Vt.xraggage, see note, 16 Am. ft Eng. R. Cas. 400. iNo McGill V. Rowand, 3 Pa. St. 451, 4$ Am. Dec. 654. — Cadwallader v. Grand Trunk R. Co., 9 Loiv. Can. 169. 37. MeruliaiuliHC— Currier not lia- ble.* — The term " baggage," for which pas- senger carriers are responsible, does not include articles of merchandise not in- tended for personal use. Collins v. Boston &* .1/. R. Co., 10 Cusli. {Mass.) 506.— FoL- i.owiNc; Jordan v. Fail River R. Co., 5 Cush. (Mass.) 69. — Oakes v. Northern Pac. R. Co., 20 Ortg. 392, 26 Pac, Rip. 230. A railroad company is not bound by the sale of a ticket to a passenger to carry mer- chandise offered as baggage, and is not liable as common carrier for tlie loss of merchan- dise so offered and received by ii without any intimation of its true nature. Blumen- thai V. Maine C. R. Co., 34 Am. &^ Eng. R, Cas. 247, 79 Me, 550. 5 A'. Eng, Rep. 355, II All. Rep. 605. Dibble v. Brown, 12 Ga. 217. Michigan Southern &• N. I. R. Co. v. Oehm, 16 III. 293,4 Am. Ry. Rep, 451.— Follow- ing Cincinnati & C. A. L. R. Co. v. Marcus, 38 111. 223. — Hamburg- American Packet Co. V. Gattman, 1 27 ///. 598, 20 A^. E. Rep. 662 ; affirming 27 ///. App. 182. Mississippi C. R. Co. V. Kennedy, 41 Miss. 671. Pardee v. Drew, 25 Wend. (N. Y.) 459.— FOLLOWING Orange County Bank v. Brown, 9 Wend. 85.— Distinguished in Dexter v. Syracuse, B. & N. Y. R. Co., 42 N. Y. 326. Fol- lowed IN Richards v. Wescott, 7 Bosw. (N. Y.) 6.— Belfast &> B. R. Co. v. Keys, 9 H. L. Cas. 556, 9 W. R. 793. 4 L. T. 841, 8/«r. A^. S. 367. Cahill v. London &» N. W. R. Co., 10 C, B, N. S. 154, 7 fur, N. S. 1 164. 30 L, f. C. P. 289, 9 W. R. 653, 4 L. T. N. S. 246 ; affirmed on appeal in 13 C B. N. S. 818. 8 fur. N. S. 1063. 31 L. /. C. P. 271, 10 W. R. 321. Great Northern R. Co. V. Shepherd, 8 Exch. 30, 7 Railw. Cas. 31a 21 L.f. Exch. 286. And the carrier is not bound to inquire as to the nature of the property, but may assume tliat it contains only such things as are properly baj^gage. Haines v. Chicago, St. P., M. &* O. R. Co., 29 Minn. 160, 43 Am. Rep. 199, 12 N. W. Rep. 447. Articles carried for sale are not baggage without regard as to what the articles may be. Spooner v. Hannibal . Goodwin, 19 Wend. (N. Y.) 234.— Explained in Indiana C. R. Co. v. Gulick, 19 Ind. 83. Although the carrier in such case is not liable as an insurer, he is liable as a bailee without reward for loss or injury caused by his gross negligence; but such negligence must be proved, and is not to be presumed from the mere fact of the loss. Smith v. Boston &^ M. K. Co., 44 A'. //. 325. The fact tluit other agents had at other times and places received and checked the merchandise as baggage with knowledge of its true nature, will not operate as notice to thecompany of its nature, with respect to the trip during which it was lost. Bltimenthals. Maine C. R. Co., 34 Am, &* Eng. R. Cas. 247, 79 Me. 550, 5 A^. Eng. Rep. 355, 11 Atl. Rep. 605. Smith V. Boston 6- M. R. Co., 44 N. H. 325.— Following Elkins v. Boston & M. R. Co., 23 N. H. 286 ; Murch v. Concord R. Co., 29 N. H. 41. The plaintifl, an emigrant for Toronto, brought with him from England a box as personal luggage which contained only rare plants and roses intended for sale. He de- livered it to the defendant's baggage-master at Quebec, saying that he would pay for it, but not stating its contents, on which the latter asked for his ticket, and on seeing that it was a third-class government emigrant ticket he said there was nothing to pay, and that it might go with plaintiff in the train. The plaintiff said the box was marked somewhere " Plants, perishable," but he could not say that defendant's officer saw it, and it was sworn that if defendant had been notified that it was freight or merchan- dise it would not have been taken. Held, that the defendant was not liable for its loss. Lee V. Grand Trunk R. Co., 36 U. C. Q. B. 350.— Reviewing Cahill v. London & N. W. R. Co., 13 C. B. N. S. 818, 10 C. B. N. S. 1 54.— Followed in McCafifey v. Cana- dian Phc. R. Co., I Man. 350. 38. Merchandise— Carrier liable.— If a carrier receives goods as baggage, knowing them tu be articles of merchan- dise, and undertakes to transport them, it is liable for iheir loss. Stoneman v. Erie R. Co., S2 A^. v. 429 ; affirming 1 Sheld. 286.— Distinguished in Plistcr v. Central Pac. R. Co., 7oCal. 169. Reviewed in Talcott V. Wabash R.Co, 50 N. Y. S. R. \2y—Ross V. Missouri, K. «S- /'. R. Co., 4 Mo. App. 582. Where the duly authorized agent of a railroad company receives personal prop- erty to be transported as baggage, the railroad company must account fur such property as baggage, although in strict lan- guage it might not he baggage. Chicago, R. I. &* P. R. Co. v. Conilin, 16 Atn. 6* Eng. R. Cas. 1 16, 32 A'lin. 35, 3 Pac. Rep. 762. Where property is offered by a passenger, but not so packed as to assume the out- ward appearance of ordinary baggage, or as to deceive or to conceal its true character, it is within the scope of the agent's business and duty to decide whether the company will receive and carry it as baggage, and if so received, to be forwarded, the company is liable. IValdron v. Chicago &* N, IV . R. Co., I Dak. 351, 46 A^. W. Rep. 456, 1 Dak. T. 336.— Quoting Hannibal & St. J. R. Co. V. Swift, 12 Wall. (U. S.) 274; Great Northern R. Co. v. Shepherd, 7 Railw. Cas. 3aggage, stores, arms, etc., sent by railway, in charge of troops, specified in 7 & 8 Vic. ch. 85, § 12, is their baggage, no matter what may be the disproportion between the amount of baggage and the number of the force, and it must be carried at the rates imposed by that «;ection. Attorney-General V. Great Southern &> W. R. Co., 14 Ir. Com. Law Rep. 447. 40. Money.*— (i) Carrier liable.— k * See also post, 84. Liability of company for money transported as baggage, see note, 18 Am. & Eng. R. Cas. 627. Passenger carrying money as baggage may passenger has a right to carry money in his trunk as baggage in a sum proper for trav- elling expenses, and if lost the carrier will be liable therefor. Merrill v. Griniiell, 30 N. Y. 594. — Followed in Dexter v. Syra- cuse, B. & N. Y. R. Co.. 42 N. Y. 326.— Torpey v. Williams, 3 Daly (N. Y.) 162. Taylor v. Monnot, 4 Duer {N. Y.) 116, i Ad6. Pr. 325.— Following Weed v. Sara- toga & S. R. Co., 19 Wend. (N.Y.) 534; Jordan v. Fall River R. Co., 5 Cush. (Mass.) 69. Not following Hawkins t/. Hoffman, 6 Hill (N.Y.) 589.— Reviewed in Merrill z;. Grinneil, 30 N. Y. $^.— Missouri Pac. R. Co. V. Yor/t, 2 Te.x. App. {Civ. Cas.) 557. International &* G. N. R. Co. v. McCown, 2 Tex. App. (Civ. Cas.) 624. Cadwallader v. Grand Trunk R. Co., 9 Low. Can. 169. In determining the amount of money which a passenger may have carried as baggage his expenses for his entire trip must be considered, and not his expenses merely over the line of the defendant company. In addition to necessary travelling expenses he is entitled to a proper allowance for acci- dents, sickness, and sojourning by the way, such as a prudent man would consider necessary to make. Merrill v. Grinneil, 30 A'. Y. 594. Bank bills amounting to $300 are a reasonable sum for a passenger to carry as baggage in his trunk without informing the company. Illinois C. R. Co. v. Copelanl, 24 ///. 332- A person making an ocean steamship voyage may retain in his trunk money for small personal expenses, and the owner of the vessel will be liable therefor if lost ; and the amount may differ from that allowed where a person is travelling by railroad or stage coach, where the journey is much briefer as to time. Duffy v. Thompson, 4 E. D. Smith (A. F.) 178. (2) Carrier not liable. — Common carriers of passengers are not responsible for money included in the baggage of a passenger to an amount exceeding what a prudent person would deem proper and iitcessary, or in- tended for purposes other than for the ex- penses of the journey, unless the loss is occasioned by the gross negligence of the carriers or their servants, Jordan v. Fall River R. Co., 5 Cush. (Mass.) 69.— Applied IN Merrill v. Grinneil. 30 N. Y. 594. FOL- be compelled to pay freight, see note, 27 Am. ft Eng. R. Cas. 2^6 m BAGGAGK, 41. 530 'i J I LOWKD IN Collins V. Boston & M. R. CO.. lo Ciish. (Mass.) 506; Taylor v. Monnot, 4Diier (N. Y.) 116. Rkvikwku in Davis v. Cayuga & S. R. Co., 10 How. Pr. (N. Y.) 330. A traveller cannot recover from a car- rier for the loss of money contained in his trunk checked as baggage, which he ex- pected to expend in buying mercandise at the end of his journey. Hickox \. Naupa- tuck R. Co., 31 Conn. 281. When the baggage consists of an ordinary travelling trunk, in which there is a large sum of money, such money is not considered as included under the term baggage, so as to render the carrier responsible for it. It seems, however, that the carrier would be liable for money in the trunk not exceeding an amount ordinarily carried for travelling expenses. Orange County Bank v. Brown, 9 Wend. (JV. Y.) 85. — Appi.ikd in Merrill v. Grinncll, 30 N. Y. 594. Foli.owkd in Pardee V. Drew, 25 Wend. (N. Y.) 459. Quoted in Hopkins v. Westcott, 6 Blatchf. (U. S.) 64 ; Dibble z/. Brown, 12 Ga. 217; Oppenheinier V. United States Exp. Co., 69 111. 62. Re- viewed in Pacific Exp. Co. f. Foley, 46 Kan. 457. It seems that money to pay travelling ex- pen&es, carried in the passenger's trunk, is not included in the term baggage. Haw- kins V. Hoffman, 6 Hill {N. V.) 586.— Nor FOLLOWED IN Merrill v. Grinnell, 30 N. Y. 594. Gold, silver, notes, etc., contained in a travelling-bag are not baggage, and a person carrying a bag containing such on a train and keeping entire possession and control of it near his own person is liable to pay freight therefor. Hutchings v. Western &* A. /i. Co., 25 Ga. 61. Where money amounting to $90,000 is presented by a passenger, the company may refuse to carry it as luggage and insist that it shall go by express. Pfister v. Central Pac, R. Co., 27 Am. St* Eng. R. Cas. 246, 70 Cal. 169, II Pac. Rep. em. A county treasurer who is travelling to the place of deposit of his funds is not en- titled to carry with him, as baggage, a large sum of money, and the carrier may refuse to carry it, though for years it had allowed him to travel on the train with large sums of money. Pfister v. Central Pac. R. Co., 27 Am. &* Eng. R. Cas. 246, 70 Cal. 169, 11 Pac. Rep. 686.— Distinguishing Minter v. Paci- fic R. Co., 41 Mo. 504 ; Butler v. Hudson River R. Co., 3 E. D. Smith 571 ; Stonenian V. Erie R. Co., 52 N. Y. 429; Sloman v. Great Western R. Co., 67 N. Y. 208 ; Hanni- bal & St. J. R. Co. V. Swift, 12 Wall. (U. S.) 262, (3) Question of liability for jury.— V^\\t\.\\er a sum of money carried in a trunk is more than would ordinarily be required to meet the expenses of a journey is a question for the jury, fones v. Priestcr, i Tex. App. {Civ. Cas.) 326. As to what is a reasonable amount of money to be carried by a passenger as bag- gage must depend upon the character of the journey and the special circum.stances of each case. Merrill v. Grinnell, 30 N. V. 594.— Applying Weed v. Saratoga* S. R. Co., 19 Wend. 534 ; Orange County Bank v. B:own, 9 Wend. 85 ; Jordan v. Fall River R. Co., 5 Cush. (Mass.) 69. As to what is a reasonable amount of money to be carried by a passenger as bag- gage is a question to be determined by the jury or a referee; and where the referee has passed upon the fact and determined what is a reasonable sum, his finding should not be disturbed on appeal. Merrill v. Grinnell, 30 N. V. 594.— Reviewing Orange County Bank 1'. Brown, 9 Wend. 85 ; Weed ?'. Sara- toga & S. R. Co., 19 Wend. 534; Taylor v, Monnot, 4 Duer 1:6. Plaii'tiff was moving a long distance with himse!' ..■ i family, and with other things shipped ^jo in money in a trunk, which was lost, and he claimed that such amount was necessary under the circumstances, and that there was less danger of pickpockets. HeM, that the question as to whether the money was necessary under the circumstances for their personal comfort and convenience, and was therefore baggage, was a question of fact. Missouri Pac. R. Co. v. I'orA; 2 Tex. App. (Civ. Cas.) 557. 41. Price-IistH, ontaloffucs, etc.— A " price-book " carried by a travelling sales- man, containing lists and prices which he used in his business and could not remem- ber, is properly personal baggage. Gleason V. Goodrich Transp. Co., 32 Wis. 85, 14 Am. A"*'/. 716.— Followed in Staub?/. Kendrick, 40 Am. & Eng. R. Cas. 632, 121 Ind. 226, 23 N. E. Rep. 79, 6 L. R. A. 619. A catalogue prepared by a travelling salesman at his own expense, and which was his own individual property, and was carried with him as an article convenient and neces- sary for use in his business while travelling. m 'Nil 1 i-'t s ( ■■ ■ . ll \\ ■ ftiW ft40 BAdCiACK, 4iJ-4r». i: 1 i^ a i !'■ is an article of j)er.s» G. R. Co. v. Alorrison, 34 Kan. 502, 55 ///;/. Rep. 252, 9 Pac. Rep. 225. —Quoting Macrow v. Great Western R. Co.. L. R. 6 Q. B. 612. Reviewing Davis V. Cayuga & S. R. Co., 10 How. Pr. (N. Y.) 330; Porter 7'. Hildebrand, 14 Pa. St. 129. The tools of a harness-maker, valued at $10, packed in his trunk with clothing and shipped as baggage — held to be such, under proof that it was customary for a harness- maker when quitting ore place to pack and transport his tools in that way. Davis v. Cayuga » -S'. R. Co., 10 Ho 52 N. Y. 429; BAGGAGE, 4«, 47. 641 Hannibal & St. J. R. Co. v. Swift, 12 Wall. (U. S.) 26?. Where a traveller is a shipmaster, com- mon carriers will be held responsible for a dressing-case, and for night-glasses or tele- scopes, upon the presumption that he may reasonably have thought they would be use- ful to him in the course of his intended voyage across the Atlantic. Cadwallader v. Grand Trunk R. Co., 9 Low. Can. 169. Thf following articles have been held to be within the meaning of the term " baggage" so as to render the carrier liable for their lo. A limited quantity of goods cut into shirt patterns. Duffy v. Thompson, 4 E. D. Smith (iV. Y.) 178. An opera-glass. Toledo, IV. &* IV. K. Co. S. E. R. Co. v. /ons, 3 Tex. Civ. App. 619, 22 S. W. Rep. 101 1. The mere payment of extra compensation on account of overweight of baggage does not convert it into freight. Hamburg- American Packet Co. v. Gall man, 127 111. 598, 20 A'. E. Rep. 662; affirming 27 ///. App. 182. A rule that the passenger may carry with him a certain weight of luggage, permits a husband and wife travelling together to take double that weight. Great Northern R. Co. V. Sheperd, 21 L.J. Exch. 114. III. C0MM£NCE1IENT AHO TEBMIHATION OF THE LIABILITY. I. Delivery to Company — Checks for Baggage. 47. Necessity of delivery to com- pany. — A common carrier is not liable for loss of baggage unless it appears thai there was son.e contract on its (wrt id carry the bag^agfe, or that it came into tlu- carrier's hands. Michigan, S. ^ A'. /. R, Co. v. M.jres, 21 /ll.()27. DisriNcinsiiKD in Chi- dM 54:J BAGGAGE, 48, 49. ft I If; Ji: V '5 7 I- W 1: cago, R. I. & P. R. Co. V. Clayton, 78 111. 616. 48. Suiflcieiicy of the delivery, generally.— It is inunutertal wlien bag- gage cuines lu the possession of the carrier, whether at the time the check is issued or at a subsequent time. In cither case, the carrier's liability as an insurer becomes fixed in case of a loss. Chicago, R. I. &* P. A*. Co. V. Clayton, 78 ///. 616. Receiving baggnge, in the evening, from passengers intending to take a morning train, where that is the custom of the company, makes tlic company liable as carrier of the baggage from tlie time of its receipt. Green V. Mihvaukee «S- .SV. P. R. Co., 41 Iowa 410. — Reviewed in Lake Shore & M. S. R. Co. V. Foster, 104 Ind. 293, 54 Am. Rep. 319. Mere depositing of baggage on the vt hide of a carrier, without notifying the car- rier or his agent of an intention to take passage, is not such constructive notice as will sustain an action for its loss. IVright V. Caldwell, 3 Mich. 51.— DISTINGUISHED IN Lake Shore & M. S. R. Cc v. Foster, 104 Ind. 293, 54 Am. Rep. 319. A common carrier may assent to the de- livery of baggage at its station without no- tice to its agents, and this assent maybe inplied from the course of business and custom of the carrier in allowing baggage ro be deposited in its rooms; but whetlier such delivery is to be regarded by the com- pany as binding upon it is a question of fact, which should be left to the jury. Green v. Milwaukee &• St. P. R. Co., 38 /o7c>a 100. The company is not liable as a carrier if the passenger, finding that his trunk is too large to be put in the caboose, on his own account and responsil)ility, and not as a delivery to a common carriir, places it in a box car, the company having no knowl- edge as to the character of its contents. Ritier v. IVafiasA, S/. L. 6- P. R. Co., 14 Mo. App. 529. Plaintiff, an intending passenger by de- fendant's railway, a quarter of an hour be- fore the train started entered a passenger car standing at the station at the original starting-point, left his valise on a vacant seat, and went out ; on his return shortly afterward his valise was gone. It was not shown that at the time he left the valise any one was in charge of the train, or that there was nny other passenger in the car. Held, no sufficient rielivcry nf the valise to defendants to render them liable Kerr v. Grand Trunk R. Co., 24 U. C. C. P. 209. — Distinguishing Talley v. Great We-^Lcrn R. Co., L. R. 6 C. P. 44 : Gamble v. Great Western R. Co., 24 U. C. Q. B. 407. 4il. Delivery to bat^giiise-iiiaMter.— Tiie proprietors of a railroad, who receive passengers and commence their carriage at the station of another road, are bound to have a servant there to take charge of the baggage until it is placed in their cars; and if it is the custom of the baggage-master of the station, in the absence of such servant, to receive and take charge of baggage in hiii acead, the proprietors will be responsi- ble for baggage so delivered to him. Jordan V. Fall River R. Co., 5 Cus/t. (Mass.) 69. —Distinguished in Michigan C. R. Co. z/. Car'ow, 73 111. 348. The delivery of a trunk to a baggage- master at his railroad station, and his ac- ceptance of such trunk for transportation, impose upon the railroad company the ob- ligation of common carriers. IVilson v. Grand Trunk R. Co., 57 Me. 138.— Recon- ciling Elkins V. Hoston & M. R Co., 23 N. H. 287 ; Collins %>. Boston & M R. Co., 10 Cush. (Mas«.) 507. Reviewing Mayall v. Boston & M. R. Co., 19 N. H. 122. Where a baggageman is the agent of a railway company, with general authority to receive the baggage of persons intending to go upon the company's train, and does receive baggage in violation of the rules and regulations of the company, the latter will be liable for the loss of such baggage to the owner who has delivered the same in good faith within a reasoable time before the departure of the train, unless the exist- ence of such rules is brought to the knowl- edge of such owner. Lake Shore York C. Eng. R. Cas. 188, 94 N. J'. 278, 46 Am. Rep. 142 ; reversing 25 Hun 350. The general duty of a carrier to transport baggage of passengers cannot be extended to imply a special contract to carry baggage which has been receipted for by a train baggage-master, where the owner has paid no fare to the carrier, but takes passage by another route to the same place of destina- tion , and the carrier receiving the baggage will pot be liable for its loss. Fair/a.v v. Ne7v York C. &• H. R. R. Co., 5 /. 6- S. {N. Y.) 516. Where a package of goods was delivered to a baggage-master along with the passen- ger's trunk, and the latter was checked, and the baggage-master told the passenger that the goods would go safely without being checked, the company was liable for their loss, though the baggage-master was in- structed by his company not to receive articles of merchandise as baggage. Minler v. Pacific R. Co., A,\ Mo. 503. —Disapproved IN Humphreys v. Perry, 148 U. S. 627. DISTINGUI.SHKD IN I fister ». Central Pac. R. Co., 70 Cal. 169. Reviewed in Cantling V. Hannibal & St. J. R. Co., 54 Mo. 385. Plaintiff presented his baggage to be checked, but was told by the baggage- master that he must first buy tickets. While gone to purchase tickets the baggage-master placed the baggage in the car, and on plain- tiff's return with his tickets he was told that he would have to pay for extra weight on the baggage, which he declined to do, and demanded his baggage, but the bag- gage-master said it was already loaded and he could not get it off the train before time for its departure. Plaintiff declined to take passage, but the baggage was carried to its place of destination and there destroyed by fire. Held, in an action for conversion of the baggage, that the company did not occupy the position of common carrier of plaintiff, and therefore could not avail itself of any of the rules governing common carriers, and that it was liable for the act of its baggage-master, even if the act was wrongful. McCormick v. Pennsylvania C. R. Co., 49 A^. K. 303, 4 Am. Ry. Rep. 429.— Following Higgins v. Watervliet "Turn- pike Co., 46 N. Y. 23.— Distinguished in McCormick v. Pennsylvania C. R. Co., 80 N. Y . 353. 50. Delivery to porter.*— The liabil- ity of a railway company as insurers of lug- gage commences from the moment when luggage is placed nnder the control of one of their porters for tiie purpose of putting it in transit. Lovell v. London. C. &• D. R. Co., 45 L. J. Q. B. 476, 34 /,. r. 127, 24 W. R. 394, 6 Ry. &» C. T. Cas. Ixix. When a porter receives luggage at the entrance of a station for the purpose of labelling it and putting it in a train, he re- ceives it as agent of the company, and the company is liable for its safety, although the passenger has not yet taken a ticket. Lan'ell v. London. C. « and bag- gage, as well as of merchandise, are answer- able, under their common-law liability, for baggage left at their otiices for transporta- tion in charge of their agents, with the intention of proceeding with the same on the next conveyance. Camden &* A. R. &^ Tr. Co. V. .Belknap, 21 IVend. (N. V.) 354. —Reviewed in Waldron v. Chicago & N. W. K. Co., I Dak. 351 ; Lake Sliore & M. S. R. Co. V. Foster, 104 Ind. 293, 54 Am. Rep. 3'9- Proof that baggage was delivered to a person acting as the agent of the company, who received and accepted it, establishes a prima-facie delivery to the company, though it appears that such person was not the actual agent having charge of the receipt of baggage and freight. Rogers v. Long Island R. Co., 38 //ojo. I'r. u\. Y.) 289. 2 Lans. 269. — Di.STiNOUlsHiNt; Grosvenorv. New York C. R. Co., 39 N. Y. 34. Where baggage is sent to a railroad sta- tion in c'tre of an expressman, who delivers it to the company's agent and calls his at- tention to it, who replies " All right," it is a sufficient delivery to make the company lit. lie for its loss. Rogers v. Long Island R. Co., I T. &> C. (.V. r.) 396; affirmed, 56 A'. K.620, /«/#».— Reviewed in Lake Shore & M. S. R. Co. V. Foster, 104 Ind. 293, 54 Am. Ro|v 319, When a p.issenger notifies the servants of a railroa't company of hia wish that his bag- gage go with him, it is *' e duly 01 the com- pany to take charge of it. The company is liable as for a breach of that duty if the passenger, having been directed by a servant of the company where to deposit his bag- gage, delivered it at the place designated, but, by mi.st.tke, to another than an employe of the comptny. International Sr* G. N. R. Co. v. Folliard, 66 Te.x. 603. i S. W. Rep, 624. 64. Delivery Hoinc time iu advance of 4lopartiir« of train.*— The question of the intent of the parly in leaving baggage at a station sonic time in advance of the d«'parture of a train determines whether the company is liable for it as a common carrier. So where baggage is left in good faith, the owner intending to take passage, the rom- pany is liable, though the owii'-r siihsequcnt- ly changes hii) mind and does not become a * See also fast, 73. Liability for baggaf^e lost before (tnin time. AKcnt's iiiithority, sec 36 Am. & Enu. K. Cas. 1)9 ahslr. I BAGGAGE, ff5-57. 045 passenger. Green v. Milwaukee &- 5/. P. R. Co., 41 Iowa 410. If a person leaves his baggage with a railroad agent as a matter of accummoda- tion, without any direction as to siiipment, i. 55. Nature and use of clieckH for \\wg,^WIic riio purpose of delivering a ( iietk for bagpage is to relieve the passenger of its burden and care, which devolve upon I D. R. D.-35. the carrier. Check v. Little Miami R, Co., 2 Disn. (Ohio) zyj. The usual baggage check delivered to a passenger is not regarded as embodying the contract of carriage, but only as a voucher or token to enable him to identify and claim his baggage at the end of the route. Isaac- son v. Nc!i> York C. &> H. R. R. Co., 16 Am, &> Eng. R. Cas. 188, 94 N, V. 278, 46 Am. Rep. 142 ; reversing 25 Hun. 350. The check is a mere receipt and is only intended as evidence of ownership and to identify the baggage. Hickox v. Naugatucft R. Co., 31 Conn. 281. A check for baggage may be issued with a ticket for only part of the way. In such case the check may be considered as stand- ing in the place of a bill of lading for the distance called for, and it imposes the duty to carry and deliver accord ingly. Louisjnlle • 427. 24 L. J. C. P. 137. 3 M'. R. 409. A passenger by the M. R. from G. to B., on arriving at B., told a porter there that he wished to proceed by the B. & E. R., whose station closely adjoined that of the M. R. The porter thereupon placed the portman- teau on a truck with other luggage, and entered the B. & E. station with the truck. There was no evidence that the portmanteau was ever afterward seen. In an action against the M. R. Co. — held, that there was no evidence of a breach of its contract. Mid- land R. Co. v. Bromley, 17 C. B. 372, 2jur. N. S. 140, 25 L.J. C. P. 94. If a passenger has notice of reasonable regulations of the company, touching the manner of delivering baj^gage, he is bound thereby without directly assenting thereto. Gleason v. Goodrich I'ransp. Co., yi Wis, 85. 02. Place of delivery.— A railroad company is liable where it carries baggage beyond the proper station and puts it in its baggage-room at another station, from which it is stolen. Toledo W. iS- W. R. Co. v. Hammond, 33 Ind. 379. A steamship passenger bound for the port of New York, being sick, left the vessel at the quarantine station, some distance from the city, but left his baggage on the vessel. Held, that in the absence of any offer of the vessel to deliver the baggage at the quaran- tine station, it was bound to carry it to the end of the journey and deliver it when called for. Gilhooly v. New York &* S. S. N. Co.. I Daly (N. Y.) 197. " The port of New York " does not neces- sarily mean New York City ; so where an immigrant sailed with his baggage for the port of New York — held, that the carrier's obligation was ended by discharging him in New Jersey, opposite New York City, and that the vessel was not liable for the loss of his baggage between there and the city. Klein v. Hamburg-American Packet Co., 3 Daly {A\ Y.) 390. ' 03. Leavitifir bag:gage in agent's cus- tody after delivery by company.*— Where a passenger tells a station porter that he will leave his luggage at the station for a short time and then send for it, and ti.e porter replies that he will take care of it, this amounts to a delivery of the luggage by the company and a redelivery by the pas- senger to the porter as his agent; accordingly the company is not liable for the loss of such luggage. Hodkinson v. London &^ N. *See aUo fosf, 71, 128-1.31. Iv ml ^ II 648 BAGGAGE, U4. f. '.vi' hi 14' K ' r • 5 s i :i ■ ,.. i IV. K. Co.. L. R. IS Q. B. D. aal. 32 W. R. 663, 5 Ry. &* C. T, Las. ix. The liability o( u common carrier is ter- minated after a reasonable time after the arrival of baggage at its place of destina- tion ; and although, if the station-master at such place consents to h(il(l such bag- Kage for the owner after such time, the carrier's liability continues, yet, if the sta- tion-master is ignorant of the fuel that the articles carried arc not personal baggage, the company is not responsible, notwith- standing that the receipt of the articles as baggage hud previously estopped it from denying that the articles were baggage. V'fxiis &^ /'. R. Co. V. Capps, 16 Am. &^ A''(^', A'. t'lVi. 118, 2 7c.t. .\pp. \civ. Cits ) 35. A lady was prevented from taking her baggage with her at the end of her jour- ney by the baggage- master placing it in tiie baggage-room and immediately leav- ing. Some three hours afterward she sent her son for the baggage, who, not find- ing the baggage-master in, hunted him up, delivered the checks, and the baggage was drawn to the front d(M)r; but meanwhile the hack retained to remove the baggage had c^oiie away and no other could be pro- cured that day, and the baggage was left in charge of the baggage-master. During the night it was broken open and the contents were stolen. Held, that the company's lia- bility as common carrier had not terminated, and that it was liable. Dininny v. New York <&- A^. H. R. Co., 49 A^. V. 546. 4 /////, Ry. Rep. 457. PlaintifT was a passenger upon defend- ant's road from K. to P., having the usual check for her baggage. On arriving at P. she informed the baggage-master at the station that she desired to leave her trunk for a few days. The baggage-trtaster replied that he was not allowed to and could not keep baggage with the checks on, but that if she gave up her check the baggage would be perfectly safe. This she did, and the trunk was left. It was subsequently deliv- ered to one falsely claiming authority to re- ceive it. Id an action to recover the value of the trunk and contents — Aelii, that the declaration of defendant's agent was, in sub- stance, a notification to plaintiff that he was without power to continue in force the obli- gation of the company in respect to the baggage indicated by the check ; that the surrender of the check was, in effect, an ad- mission of tlif I'lrformance of that oblijj.i- tion, i.e., the safe arrival and delivery of the baggage ; that in thu absence of evi- dence tending to show that the agent had power thereafter to bind the company by a new agreement, or that it had acquiesced in the exercise by him of such pc^wer, and it appearing that it was in clear violation of the regulations of the company, defendant could not l)c held liable ; and that the sub- mission to the jury of the question as to the autiiority of the agent was error. Mattison V. Xiio York C. R. Co., 57 ;V. )'. 5s2.-D1.s- TiNUUisiiiNU Dininny f. New York lic enemy i! HA(i(iA(il':, 4(.i, no. 54!) will relieve a coinmun carrier from its liability for the safe carriage and delivery of baggage. This liability docs not necessarily terminate at the end of the route, but con- tinues until the baggage is delivered to the owner ; but if the owner fails to call for it within a reasonable lime the liability of the carrier is thiit of bailee only, and it is liable only for a loss which is the result of its own neglect. Roth v. liuffnlo &* S. /.. A'. Co., 34 A'. )'. 548.-I)isriN(iUisHiNr. Powell v. Myers, 26 Wend. 591 ; Garside if. Trent & M. Nav. Co., 4 Term Rep. 581.— Followed IN Hedges v. Hudson River R. Co., 49 N. Y. 223; Curtis 7'. Avon,G. & Mt. M. R. Co., 49 BarD. (N. Y.) 148; Holdridge 7'. Ulica & B. R. R. (■().. 56 Barb. (N. Y.) 191 ; Hurgcvin7'. New \ Oik C. A H. R. R. Co., 23 N. Y. Supp. 415. LiMlTKl) IN Burnell 7'. New York C. R. Co., 45 N. Y. 184. yuAl.lFiEi) IN Lamb V. Camden & A. R. & T. Co., 2 Daly (N. Y.) 454. Reviewed in Burgevin v. New York C. & H R. R. Co., 52 N. Y. S. R. 617. 05. What Ih n ronipliaiicc with tlie rule oil the part ot'tho imHH<>iig:t'r. — Where it is usual to deliver baggage im- mediately after its arrival the owner should apply for it as soon as it is possible for him Willi due dilifjencc to do so, and this rule applies even where the baggage arrives at a late hour of the night, if the company is ready to deliver it. Ouimit v. Henshaw, 35 Vt. 605. A traveller should call for his baggage within a reasonable time, and where both come on the same train this should be im- mediately after his arrival, and the transfer of the baggage to the platform, making due allowance for the delay and confusion caused by the arrival and departure of trains and the crowd that usually is about the platform Chicago &» A. R. Co. v. Addizoat, \ 7 ///. App. 632.— DiSTiNfiUi.sHiNG Stevens v. Boston & M. R. Co., I Gray (Mass.) 277. Where a party is informed that the bag- gage has not arrived on the train with him, and he fails to give any directions concern- ing it or notice where he may be found, he should call and make inquiry as soon as convenient after the arrival of the next train. Chicago ^-A.R. Co. v. Addisoat, 17 ///. App. 632. Where the agents of a railroad company agree that biiggage arriving in the evening may remain in the baggage-room until the following morning, it remains during that time at the risk of the company. Burgei'in V. \,w York C. &* Ji. R. R. Co., 23 A'. )'. .SV///. 415. Where a passengcris lame andcannotcarry his baggage, but arranges with the baggage- master to leave it until sent for, llic liability of the company continues as common car- rier until he sends fur it. Cut/is v. Avon, G. &* Aft. A/. R. Co.. 49 /lar/>. (X. }'.) 148. A delay (»f several days in calling f P. R. Co. v. Cook, 2 Tex. App. (Civ. Cas.) 576. K H. R. R. Co., 23 A^. Y. Supp. 415. Where baggage arrives in the evening, until the next morning is a reasonable time for the passenger to call for and take it away ; and where the carrier is sued for the loss of baggage which is thus left overnight, an instruction that the company was not liable as a common carrier, but only as a ware- houseman, and leaving it to the jury to determine whether there was such negli- gence as to make it liable as warehouseman, was more favorable than the company had a right to ask for, as it was in fact liable as carrier. Burgevin v. New York C, 6- ff. R. R. Co., 52 N. Y. S. R. 617.— Reviewing Roth V. Buffalo & S. L. R. Co., 34 N. Y. 548. The morning of the second day after baggage arrived— >*(?/» Eng. R. Cas. 271, 1 3 Ont. App. 93. From afternoon until between nine and ten o'clock of the next day is not a reason- able time for a passenger to delay demand- ing his baggage at the place of destination. Jacobs v. Tutt, 33 Fed. Rep. 412. From Friday night until the following Monday morning is not a reasonable time to leave baggage in the company's depot, and if it is destroyed in the meantime the company is not liable. Watkins v. New York C. &• H. R. R. Co., 16 N. Y. S. R. 592, 3 N. Y. Supp. 946. (2) //lustrations. — The owner of a valise which had been transported as baggage allowed it to remain in the company's open depot, where baggage was usually kept, without making any arrangement for it, for some twenty-four hours before calling for it, and in the meantime it was stolen, //eld, that the liability of the company as carrier ceased upon the arrival of the baggage, and that therefore it was only liable as bailee. //o/dridge v. l/tica &^ B. R. R. Co., 56 Barb. (N. Y.) 191.— Following Roth v. Buffalo & St. L, R. Co., 34 N. Y. 548. The plaintiff was a passenger on defend- ant's railway from P. to S., with two trunks for which he had checks. At S. the trunks were put on the platform, and he assisted defendants' servant to carry them into the baggage-room, and went up in an omnibus to the hotel ; this was about 3 P.M. In the evening about 8 he sent his checks for his trunks, but one or them had disappeared, and the evidence went to show that it had been stolen. Held, that defendants were not responsible, that their duty as common carriers ended when the trunk had been placed on the platform, and that the plaintiff • See also post, 69. BAGGAGE, 08,69. tiSl !2 Am. bbb 7'. LOWED Co., i6 8. ial;1c>.* ssenijer til the n thai) niently in the in tlie ny will Grand as. 271, had had a reasonable time to remove it. A nonsuit was therefore ordered. Pen- ton V. Grand Trtmk R. Co., 28 U. C. Q. B. 367.— Following Inman v. Buffalo & L. H. R. Co., 7 U. C. C. P. 325 ; Shepherd v. Bristol & E. R. Co.. L. R. 3 Exch. 189.— Followed in Brown v. Canadian Pac. R. Co., 3 Man. 496. Reviewed in Vineberg v. Grand Trunk R. Co., 13 Ont. App. 93. Plaintiff sued for baggage burned in a baggage-room. The railroad set up the de- fense tliat the baggage was safely carried to its destination, and not being called for was stored, and was there destroyed by fire without fault on their part. Plaintiff replied that his passage had been over several lines ; that while on an intermediate line he was informed that his baggage was not on the same train as himself ; that on reaching his destination at defendant's station he looked in defendant's baggage-car, and not seeing his baggage went away without calling for it ; and that he called the next day but was told that it had been destroyed. Held, that the replication was bad on demurrer. Brown V. Canadian Pac. P. Co., 3 Man. 496. 4. Company When Liable as Warehouseman Only. 68. When liability as carrier ceases, generally.* — The liability of a railroad company as a common carrier ceases upon the expiration of a reasonable time after putting baggage off at a station, and after the expiration of such reasonable time the company's liability for baggage in its custody is that of a warehouseman for hire ; and in case of the destruction of the bag- gage by the burning of the station there is no presumption of .legligence against the company. Wald v. Louisville, E. &> S/. L. R. Co. {Ky.), 58 Am. <&- Eng. K. Cas. 123. Where a passenger with baggage arrives at a railroad station, and for his own con- venience leaves his baggage at the station overnight, the railroad company is no longer liable as a common carrier, and if the bag- (^age is destroyed by accidental fire, without the company's fault, the company is not liable therefor. Ross v. Missouri, K. &* T. R. Co., 4 Mo. App. 582. Leaving baggage with a carrier either for temporary convenience, or from necessity, sickness, or accident, is not such an unusual * When company's liability as carrier ceases, see note, 2i Am. & Enr. R. Cas. 312. or exceptional circumstance as to create a presumption that it was not within the contemplation of the carrier at the time the contract to carry was made. Burnell v. New York C. R. Co., 45 N. Y. 184, 6 Am. Pep. 61. Where a passenger on board a steamboat checks his baggage through to his destina- tion, and, having taken advantage of his stop-over, the baggage is warehoused sub- ject to delivery on call and presentation of check, the carrier is not liable for its loss by fire while in the warehouse. Laffrey v. Grunimond, 37 Am. &* Eng. P. Cas. 235, 74 Mich. 186, 41 N. W. Pep. 894.— Reviewing McKee I/. Owen, 15 Mich. 115. 69. Expiration of reasonable time to call for baggape.*— Where baggage is not called for within a reasonable time it is the duty of the carrier to properly store it, and when this is done its liability as carrier ceases and that of warehouseman attaches. Mote v. Chicago <&>» N. W. P. Co., 27 Icwa 22. St. Louis &* C. P. Co. v.Hardway, 17 ///. App. 321.— Following Bartholomew t/. St. Louis, J. & C. R. Co., 53 111. 227.— Chi- cago &> A. P. Co. V. Addizoat, 17 ///. App. 632. Louisville, C. 6f L. P. Co. v. Mahan, 8 Bush (Ky.) 184. Wald v. Louisville, E. L. R. Co. V. Mahan, 8 Bush (Ky.) 184. 71. Voluntary bailment by pas- senger.*— A passenger's baggage was deliv- ered to him at the end of his journey, but afterward he asked the baggage-master, as a matter of convenience, to keep it until he sent for it. Held, that the bailment being gratuitous, the company was not liable for '■-,, subsequent loss, as a common carrier, and ^v juld only be liable at all for gross negli- gence. Minor v. Chicago &* N. IV. R. Co., 19 IVis. 40. Arriving at his destination at half-past eight P.M., the passenger left his baggage in the custody of the agent of the company, and during the same night the depot and contents, including the baggage, were de- stroyed by fire. Held, that in order to make the company liable for tiie baggage so de- stroyed, it was incumbent on the owner to show that the fire was the result of such negligence on the part of the employes of the company as would render liable a bailee for hire. Louisville, C. &* L. R. Co. v. Mahan, 8 Bush {Ky.] 184. A lady left a trunk at a depot till she was ready to proceed on her journey, or until she called for it, if she should decide not to go. //i?/ir/, that the liabilityof the company, at most, was not more than that of a gratuitous bailee. Little Rock &> Ft. S. R. Co. v. Hun- ter, iZA»i.&* Eng.R. Cas. 527, 42 Ark. 200. Where the baggage of a passenger is placed in charge of the carrier, and upon arriving at his place of destination the pas- senger leaves it in charge of the carrier, the liability of the carrier, as such, will not be changed to that of warehouseman, until the baggage is stored in a safe and secure warehouse. If the baggage be placed in an insecure room, and is stolen, the carrier will be responsible in that capacity, not as ware- houseman. In this regard, the same rule applies to the carrying of baggage as to the carrying of ordinary freight. Bartholomew V. St. Louis,/. (S- C. R. Co., 53 /// 227. 72. Baggage reacliing destination ahead of passenger.— Where a passen- * See also ante, 63 ; post, 128-131. I ■!^p BAGGAGE, 78, 74. 60a I ger is detained *// route by sickness, causing his baggage to reach its destination ahead of him, and the baggage is placed in the baggage-room, the carrier will be liable thereafter only as warehouseman. Chicago, R. I. &■> P. A'. Co. V. Boj'u; 72, III. 510. 73. or held over for later train. "* — A carrier is only liable as carrier for a passenger's baggage which is left with it for immediate transportation, and where such baggage is voluntarily deposited for safe keeping, as when it is brought to the depot for one train, and on learning that it could not go till a Liter train is left for such later train, the liability for loss is merely that of warehouseman. Goodbar v. Wabash R. Co., 53 Mo.App.\T,\. — Quoting O'Neil V. New York C. & H. R. R. Co., 60 N. Y. 138 ; Watts v. Boston & L. R. Corp., 106 Mass. 466. Reviewing Hunter v. Little Rock & Ft. S. R. Co., 42 Ark. 200; Gregory V. Wabash R. Co., 46 Mo. App. 574. 74. Extent of the liability as ware- houseman.— On the trial of an action for the loss of a passeng s trunk, it was not error to charge that if the company failed to deliver it and undertook to deposit it in its warehouse, its liability would be that of a warehouseman, and it would be bound to use ordinary diligence in takirig care of it, and if it failed, the plaintiff would be enti- tled to recover. Georgia R. &• B. Co. v. Thompson, 86 Ga. 327, 12 S. E. Rep. 640. When a passenger checks baggage to his destination, and such baggage arrives, \)ut is not, from any cause, delivered to such passenger, it is the duty of the company to deposit such baggage in their baggage-room, in which event the responsibility becomes that of warehouseman. It is not neces- sary that such place of deposit should be absolutely fire-proof or burglar-proof, but it should be such a place as a man of ordi- nary prudence would use for the storage of his own goods. Chicago, R. I. &• P. R. Co. v. Fairclough. 52 ///. 106. Where a lady's trunk arrives in the even- ing and is placed overnight, in the ladies' waiting-room, where it is broken open and the contents are stolen, the company is liable for the loss. St. Louis v his own property under like circumstances; and such care does not require the carrier to keep a night-watch about a warehouse, or to have some one sleep therein, where the average amount of goods stored therein does not exceed $500. Pi/;e v. Chicago, At. 6* St. P. R. Co., 40 Wis. 583, 13 Am. Ny. Rep. 447- Where a vessel arrives in port on Monday evening and baggage is called for on Wed- nesday morning, but is lost, the burden is on the owners of the vessel to show that it was lost without their fault, or the fault of their servants. Van Horn v. Kermit, 4 E. D. Smith (iV. Y.) 453. 5. Transfer- Companies. 75. Bight to solicit business.— Going on an incoming passenger train, at out stations, and soliciting the transfer of baggage from passengers, is not a violation of a city ordinance prohibiting soliciting any passenger at any of the "stands, rail- road stations, steamboat landings, or else- where in said city," where no baggage was taken at the time, and only checks were given therefor. Reg. v. Verral, 18 Ont. 117. 76. Sufficiency of delivery to.— In an action against the W. Express Co. to re- cover a trunk and contents, it appeared that plaintiffs' agent took passage by railroad and checked the trunk at Detroit for New York City ; that he stopped over en route ; that the trunk arrived at the Grand Central depot twenty-four hours before him ; and that it was taken out of the car on its arrival by defendant's employes, but was left in the baggage-room of the railroad company and in its possession and control, to be delivered, in accordance with custom, to any one pre- senting the check. H. gave the check to defendant's agent on the train, who, upon reaching New York, searched for the trunk, but it could not be found. Held, that plain- tiffs failed to show a delivery of the trunk to defendan'., and that therefore it was not liable. Aikin v. Westcott, 123 N. Y. 363, 25 N. E. Rep. 503, 33 A^. Y. S. R. 623. 77. Liability for loss of trunk.— A passenger on a railway train, having arrived at the point of destination, entered into a contract with a transfer company, for an agreed compensation, to procure his bag- gage from the railroad company's depot a v\ haul it to his residence, and for that purpose surrendered his baggage checks. Held, that the transfer company was respon- sible to the passenger for the safe keeping and delivery of the baggage. DaPonte v. New Orleans Transfer Co., 42 La. Ann. 696, 7 So. Rep. 608. Under this state of facts, contractual rela- tions existed between the passenger and the transfer cu.ripany, which the former could enforie by suit and sequestration. DaPonte v. New Orleans Transfer Co., 42 La Ann. 696, 7 So. Rep. 608. Defendant was engaged in transferring baggage arriving at a city depot. An in- coming passenger surrendered his checks to one of defendant's agents on the train, and another employe of defendant testified that plaintiff's two trunks came to the sta- tion and were taken cha e of by him for defendant, as was theii justom under an arrangement with railroad company. One of the trunks was delivered to plaintiff. Held, that there was sufficient evidence to call on defendant to answei why the other was not delivered, and it was error to dis- miss the complaint. Aikin v. Westcott, 14 Daly (N. Y.), 504, 9 N Y. Supp. 481, 16 A^. Y. S. R. 600. 78. Limitation of liability.— Where a transfer company receives the baggage of a person to be transferred from a railroad station to her home, merely putting in her hand a card of the company with a condi- tion printed on it, limiting the company's liability, will not bind her, where there is nothing to show that she assented thereto. Such a contract applies only to steamboats and railroads. Prentice v. Decker, 49 Barb. (N. K) 21. IV. CU8T0DT OF BAOOAOE BT PA88ENO£B. 79. General rule exempting car- rier from liability.*— A railway company is liable for the loss of baggage only when it is placed in its charge, not when it is retained in the possession of the passenger. Cohen v. Frost, 2 Duer {N. K) 335.— Fol- lowing Burgess v. Clements, 4 M. & S. 306. Reviewing Hawkins v. Hoffman, 6 Hill (N. Y.) 586. Where the counsel for the plaintiff dis- claims any taking charge by the defendants as common carriers of articles lost, and it appears that the plaintiff, during her whole travel, kept them in her possession, ♦Liability of company for baggage in passen- ger's custody, see notes 16 Am. & Eno. R. Cas. 399; 42 Am. Dec. 27. r BAGGAGE, 80. 56f) under her charge, no question of liability as common carriers can arise. Tolatio v. National Steam Nav. Co., 5 J^obt. {N. Y.) 318, 4 Abb. Pr. 316. 35 How. Pr. 496. If a passenger retains the exclusive con- trol of his baggage, the carrier is not respon- sible for its loss, unless such loss results from the latter's negligence. Pullman Palace Car Co. v. Pollock, 34 Am. &• Eng. R. Cas. 217, 69 Tex. 120, 5 Am. St. Rep. 31,5 5. W. Rep. 814. A railway company is not liable for the loss or theft, without any negligence on its part, of luggage placed in the same compart- ment with a passenger at his request. Berg- heim v. Great E. R. Co., L. R. 3 C. P. D. 221, 47 L.J. C. P. Div. 318, 38 L. T. N. S. 160, 26 W.R. 301, 3 Ry. &> C. T. Cas. xx. If a passenger's luggage be intrusted to a porter of the carrier, the latter will be liable as common carrier; but where the passen- ger talces it into the carriage and under his own control, a railway company is not lia- ble as common carrier, it it is lost, and will be liable in any way 01. ly for negligence. Bunch V. Great Western K. Co., 26 Am. &* Eng. R. Cas. 137, 17 Q. B. D. 215, 55 L. J. Q.B. 525, 5 RySf C. T. Caj.viii.— Explain- ing Bergheim v. Great Eastern R. Co., 3 C. P. D. 221 ; Cohen v. South Eastern R. Co., 2 Exch. D. 253. Reviewing Butcher 7/. London and South Western R. Co., 16 C. B. 13, 24 L. J. (C. P.) 137 ;' Richards t/. Lon- don. B. & S. C. R. Co., 7 C. B. 839, 18 L. J. (C. P.) 251. A railway company accepting passenger's luggage to be carried in a carriage with the passenger, enter into a contract as common carriers, subject to this modification, that in respect of his interference with heir ex- clusive control of his luggage, the company are not liable for any loss or injury occur- ring during its transit, to which the act or default of the passenger has been contrib- utory. Great Western R. Co. v. Bunch 13 App. Cas. 31, 57 L.f. Q. B. 361, 3 Ry. &• C. T. Cas. Ixix. If the negligence of a passenger who has his luggage with him in the carriage causes its loss, the company is not liable. Talley V. Great Western R. Co., L. R. 6 C. P. 44, 40 L.J. C. P. 9, 19 f^- H- 1 54. 23 L. T. N. S'. 413, 3 J^y- &* C. T. Cas., XX.— Approved IN Bergheim v. Great Eastern. R. Co., 26 VV. R. 301, L. R. 3 C. P. D. 221, 47 L. J. C. P. 318, 38 L. T. 160, If a passenger having his luggage in the carriage with liim gets out at an intermedi- ate station and negligently fails to find the same carriage again, finishing his journey in a different one, and his portmanteau is stolen, the company is not liable. Talley V. Great Western R. Co., L. R. 6 C. P. 44, 40 L. J. C. P. 9, 19 W. R. 154, 23 L. T N. S. 413, 3 Ry. &• C. T. Cas. xx. Steamboat owners are regarded as com- mon carriers and are subject to the law reg- ulating such carriers, but there is no law making a common carrier responsible for the wearing apparel of a passenger or for money which he carries upon his person and which is under his own immediate care and con- trol; but it is otherwise when such things are made baggage and delivered to the steamboat owners or their agents. Steam- boat Crystal Palace v. Vanderpool, 16 B. Man. {Ky) 302. Jewels of $6000 value retained by a pas- senger in liis own care are not baggage for the loss of which a carrier is chargeable. In order to render the carrier liable for losses of baggage, or of goods shipped as freight, they must be delivered and en- trusted to the carrier. Del Valle v. Steam- boat Richmond, 27 La. Ann. 90. 80. Limits and exceptions to tlie rule. — Where no interference with a com- mon carrier's control of property carried is attempted, it is not a ground for limiting its responsibility that the owner of such property accompanies it and keeps a watch- ful lookout for its safety. Hannibal <&* St. J. R. Co. V. Swijt, 12 Wall. {U. S.) 262, i Am. Ry. Rep. 434. A carrier is not to be regarded as the in- surer of money or other baggage which is lost while being carried in the control of the passenger; but such carrier is liable if its negligence is the proximate cause of the loss. Bonner v. Grumbach, 2 Tex. Civ. App. 482, 21 .<>. W. Rep. loio. A carrier is bound to deliver the pas- senger's luggage to liim at the end of the journey, although it may have been in the same carriage with him and under his per- sonal care ; and if the usual course of de- livery is at a particular syot, that is the place of delivery. Richards v. London &* S. C. R. Co., 7 C. B. 839, 6 Railw. Cas. 49, '3 A''- 986, 18 L. f. C. P. 251. A railway company is liable for the loss of a passenger's luggage, though carried in the carriage in which he hinself is trav- elling. LeConteur v. London 'S* S. W. R, -„.'* ^m ■^ 556 BAGGAGE, 81. I a I Co., 6£.&^ S. 961, 35 L.y. (J. li. 40. \2jur. N. S. j66, L. R. I Q,. B. 54, 14 W. K. 80, 13 L. T. 325.— Commented on in Bergheim V. Great Eastern R. Co., 26 W. R. 301, L. R. 3,C. P. D. 221,47 L. J. C. P. 3i8,38L.T. 160. If a passenger keeps liis luggage with him during the journey, it is in the custody of the company, which is responsible for its loss. Great Northern R. Co. v. Shepherd, 8 Exch. 30, 7 Railw. Cm. 310, 21 L.J. Exch. 286. The mere fact of a passenger travelling in a railway carriage retaining possession of a bag or other small article of luggage does not, without some evidence of contract ex- press or implied to that effect, relieve the company from their liability as common carriers in case of loss. Gamble v. Great Western R. Co., 3 Up. Can. Error &> App, 163. Where a passenger directs a porter to place his luggage on the carriage seat, which is done, this alone is not a sufficient taking of such luggage from under the con- trol of the company so as to relieve it from liability for its loss. LeConteur v. London &* S. W. R. Co., 6 H. &^S. 961, 35 L.J. Q. B. 40, 12 Jur. N. S. 266, L. R. i Q. B. 54, 14 IV. R. 80, 13 L.T. 325. The company receiving a passenger's lug- gage, to be carried in the carriage with the passenger, contracts as a common carrier, except that it will not be liable for any loss or injury to which the passenger's own act contributed. Great Western R. Co. v. Bunch. 34 Am. &* Eng. R. Cas. 224, 13 App. Cas. 31 ; affirming 17 Q. B. D. 215. — Approving Richards v. London, B. & S. C. R. Co., 7 C. B. 839 ; Talley v. Great Western R. Co., L. R. 6 C. P. 44. Disapproving Bergheim V. Great Eastern R. Co., 3 C. P. D. 221. Quoting Butcher v. London & S. W. R. Co., 16 C. B. 13. 81. Placiii{>: articles ill state-room.* — Where a passenger by boat is given a state-room (and the key to it), in which he places his baggage, and from which it is stolen in his absence while the door is locked, the owners of the boat are liable. Mudgett v. Bay State Steamboat Co., i Daly (N. F.) 151.— Followed in Gleason v. Goodrich Transp. Co., 32 Wis. 8$.— Gleason v. Goodrich Transp. Co., 32 Wis. 85. It seems that carriers by water may re- * See also ante, 4. quire passengers to deposit baggage not necessary for daily use in some designated place in their care ; but to hold the ship- owners liable it is not necessary for the passenger, of his own motion, to place it in charge of the officers of the vessel. Van Horn V. Kermit, 4 E. D. Smith (iV. F.) 453. Where a passenger pays extra for a state- room on a vessel, a rule requiring him to place his baggage in the care of an officer . of the vessel and forbidding him to take it into his state-room is an unreasonable rule, so far as it applies to articles required for present use, and will not relieve the com- pany from liability in case of loss. Macklin V. New Jersey Steamboat Co., 7 Abb. Pr. N. S. {N. y.) 2:9. Where a passenger by vessel places his baggage in a state-room and it is stolen at night, without negligence on his part, the owners of the vessel are liable, though the articles lost are such things as a pocket- book and money, and a watch and chain. And a notice posted up requiring such bag- gage to be put in the custody of an officer of the boat does not apply where the passen- ger is furnished with a state-room. Crozier V. Boston, N. Y.&'A. Steamboat Co., 43 How, Pr. {N. y.) 466.— Quoted in Woodruff, S. & P. Coach Co. V. Diehl, 9 Am. & Eng. R. Cas. 294, 84 Ind. 474, 43 Am. Rep. 102. If a passenger by steamboat deposits his wearing apparel in his state-room, the owners of the vessel are liable if it is stolen there- from without fault on the part of the owner. Gore V. Norwich &* N. K. Transp. Co., 2 Daly {N. F.) 254. The fact that a passenger by steamboat wears an overcoat and deposits it in his state-room cannot be regarded as such ex- clusive possession as to relieve the carrier from liability if it be stolen without the owner's fault. Gore v. Norwich Eng. R. C^xs. 421, 124 iV. Y. 53, 26 A^. E. Rep. 277. 34 N. Y. S. R. 854; affirming 15 A'. Y. S. R. 345. H Daiy 457. 85. Company's liability where pas- seii{;er is robbed.— Under the ordinary contract of carriage, a carrier of passengers makes no contract and enters into no duty as to articles of property of great value forming no pnrt of the passenger's ordinary baggage or personal equipment ; and where a passenger carries such articles upon his per- son, without notice to or knowledge of the carrier, and they are violently taken from him by robbers, in the absence of gross neg- ligence or fraud the carrier is not liable, although negligent in the exercise of its duty of protecting its passengers from vio- lence. Weeks v. New York, N. H. 6- H. R. Co., 72 N. Y. 50, 28 Am. Rep. 104; affirming 9 Hun 669.— Distinguishing Tower v. Utica & S. R. Co., 7 Hill (N. Y.) 47- Whether, where a passenger is robbed of articles of clothing or usual and reasonable articles of personal adornment,under circum- stances charging the carrier with a neglect to perform its duty of protecting the pas- senger from violence, the carrier is liable for the loss, quare. Weeks v. New York, N. H. €r- H. R. Co.. 72 N. Y. 50, iZAm.Rep. 104 ; affirming 9 Hun 669. 86. Refusal to rce(>iv<> parcel as baggage.* — A railway company cannot re- fuse to carry as luggage a package brought by a passenger and made up in a railway wrapper or a horse-rug, on the ground that it consists of articles of clothing; nor can they oblige the passenger to take it along with him in the carriage, so as to throw on him the responsibility for its safety. Munster * See also ante, S9. V. South Eastern R. Co., ^Jur. N. S. 738, 27 L.J. C. P. 308, 4 C. B. N. S. 676. 87. Rights of passenger stoppiui; over. — Where a passenger buys through- tickets over a railroad and a connecting stage line, on arriving at the end of the rail- road he has a right to have his baggage taken to a hotel where he waits until the next morning for the stage, without breaking the continuity of through transportation of his baggage. Wilson v. Chesapeake 6- O, R. Co., 21 Gratt. (P'a.) 654. V. DISCIOSURE OR COKCEALMENT OF VALUE OR CONTENTS. 88. l>iity of passent;er to disclose value and nature of contents. — It is the duty of a passenger having valu- ables in his trunk, and desiring its trans- portation, to disclose to the carrier the nature and value of the contents; and if the latter then cliooses to treat it as baggage, without extra compensation, the liability of common carrier will attach, but not other- wise. Michigan C. R. Co. v. Carroru>, 73 ///. 348. In order to charge a railroad company for loss of articles which it receives in a trunk and transports as baggage, but which are not properly baggage, it must appear that the company at the time of shipment had notice of the contents of the trunk. Texas &^ P. R. Co. v. Capps, 2 Tex. App. {Civ. Cas.) 35. If a passenger practises a fraud on the carrier by inducing it to accept jewelry, merchandise, and other valuables for trans- portation as baggage, such fraud releases the carrier from liability as i common car- rier. Cincinnati 6^ C. A. L. R. Co. v. Marcus, 38 ///. 219.— Distinguished in -Michigan C. R. Co. v. Carrow, 73 111. 348. Followed in Michigan S. & N. I. R. Co. V. Oehm, 56 111. 203. Where a valise is accepted by a carrier as baggage, without notice that it contains in addition to baggage proper a large amount of gold, the carrier is not liable for the loss of the gold, though stolen by one of its ^j^ents. Doy/e v. Riser, 6 /nd. 242. Where a passenger knows that a carrier has a fixed rate of charges for transporting gold, surreptitiously obtaining the carrier to take charge of gold as baggage is such fraud as will release the company from liability in case of a loss ; but if the carrier knows that the baggage contains gold, and '' BAGGAGE, 80. 609 A/p. charges as for extra baggage, there is no fraud, and the company is liable for a loss. Htllman v. Holladay, i Woohv. {U. S.) 365. If a passenger on a railway brings a trunk to the depot which contains jewelry of the value of $30,000, and gives no notice of its contents, and has the same checked as ordi- nary baggage, and there is nothing about the trunk indicating its contents, and the same is consumed by fire while being car- ried, the company not being guilty of gross negligence, it cannot be held liable. Michi- gan C. R. Co. V. Carrow, 73 ///. 348. Where a person, under the pretence of having baggage transported, places in the hands of the agents of a railroad jewelry and other valuables, without notifying them of its character and value, he practises a fraud upon the company which will prevent his recovery in case of a loss, unless it occurs through gross negligence. Afichigan C. K, Co. v. Carrow, 73 ///. 348. Where goods are shipped as freight, if the shipper use fraud or artifice to deceive the carrier, whereby his risk is increased or his care and vigilance are lessened, the carrier is relieved from liability. There is a distinc- tion with regard to money carried as part of freight and money carried as part of bag- gage. Missouri Pac. K. Co. v. York, {Tex.) 18 Am. &- Eng. R. Cas. 623. As a condition precedent to any contract for the transportation of baggage, the car- rier may require information from the pas- senger as to its value, and may demand extra compensation for any excess beyond that wliich the passenger may reasonably de- mand to have transported as baggage under the contract to carry the person. New York C. &* H. R. R. Co. v. Fraloff, 100 U. S. 24, 21 Am. Ry. Rep. 428. The carrier may be discharged from lia- bility for the full value of the passenger's baggage if the latter by any device or arti- fice puts off inquiry as to such value, whereby is imposed upon the carrier a responsibility beyond what it is bound to assume in consideration of the ordinary fare charged for the transportation of the person. New York C. 6»» H. R. R. Co. v. Fraloff, 100 U.S. 24, 21 Am. Ry. Rep. 428. A rule of a railroad company that it will carry as baggage only the passenger's wearing-apparel on passenger trains is rea- sonable \ and where plaintiff, who had been in the habit of carrying his peddler's ware as baggage, declined to certify that his trunk contained nothing except wearing apparel, the company had a right to decline to carry the trunk, and he is not entitled to damages therefor. Norfolk &■• IV. R. Co. v. Irvine, 84 Va. 553, i L. R. A. 110, 5 S. E. Rep. 532.— Quoting Phelps v. London & N. W. R. Co., 19 C. B. N. S. 321. 8U. NeccMHity of inquiry uii part of carrier. — (i) Such inquiry necessary. — In the absence of legislation, or of special regulations by the carrier, or of conduct by the passenger misleading the carrier as to the value of baggage, the failure of the pas- senger unasked to disclose the value of his haggage is not in itself a fraud upon the carrier. New York C. &^ H. R. R. Co. v. Fraloff, 100 {/.S. 24, 21 Ain.Ry.Rep. 428. A person who sends bagyage by a com- mon carrier is not bound to declare its value unless required to do so, and in the absence of proof to the contrary this will be pre- sumed, in an action in the courts of New Jersey, to be the rule of law in that state. Brown v. Camden &• A. R. Co., 83 Pa. St. 316, IS Am. Ry. Rep. 421.— Reviewed in Ryan v. Missouri, K. & T. R. Co., 23 Am & Eng. R. Cas. 703, 65 Tex. 13. A passenger, whose trunk contained a quantity of coin, paid the charge for extra baggage demanded by the baggage-master, but did not inform him that the trunk con- tained coin, in addition to clothing. Held, in an action against the carrier for the loss of the trunk, that the carrier was liable for the value of the coin. Baldraff v. Camden &» A. R. Co., 2 Fed. Cas. 507. Where a trunk of a passenger contains specie it is not incumbent on him to inform the carrier of its contents, unless inquired of, notwithstanding the advertisement of the carrier, that passengers are " prohibited from taking anything as baggage but their wearing-apparel, which will be at the risk of the owner ; " and where the extra weight of the passenger's baggage, including the trunk, was paid for, and the agents of the carrier took charge of \t—held, that it was immaterial whether the trunk was to be viewed as baggage or freight, and that the carrier was responsible for its loss through the negligence or fraud of its agent. Cam- den &-■ .-/. R. Co. V. Baldauf, 16 Pa. Si.67.— Distinguished in Pennsylvania C. R. Co. V. Schwarzenberger, 45 Pa. St. 208. An emigrant shipped a quantity of gold coin packed in the centre of a box of cloth- ing and household goods, //eld, that the car- m p 660 BAGGAGE, 00-03. I |-'-" w I 1 .1 riers were not liable for a loss if there were no circumstances to lead them to infer that the box contained coin; but if the carriers knew that emigrants were in the habit of transporting gold put up in a similar way, and might reasonably have inferred that plaintiff's box contained money, then it was ihcir duty to inquire as to its contents, and failing to do so they would be liable as car- riers, /^u/ir V. Michi^ixn C. A'. Co., i /J/ss. {('. S.) 3S.— DiSAPi'RovEiJ IN Humphreys I'. Perry, 148 'J. S 627. DisTiNGUisHEU in Michigan C. R. Co. v. Carrow, 73 111. 348. (2) Sue A inquiry untuxessary.—A carrier of passengers is not bound to inquire as to the contents of a trunk delivered to it as ordinary baggage, such as travellers usually carry, even if the same is of considerable weight, but may rely upon the representa- tion, arising by implication, that it contains noliiiiifj more than baggage. M.'higan C. A'. Co. V, CnrrtKo, 73 ///. 348. After buying a railroad ticket atravelling salesman for a jewelry firm asked the agent to check his trunk, but without informing him that it contained jewelry, and without any inquiry on the part of the agent as to what it contained. The trunk was found to be overweight as baggage, and an extra charge was paid and the trunk checked. The trunk was so constructed as to show that it was a jeweller's sample-trunk. The carrier had been in the habit of checking similar trunks, but there was no evidence to show that it knew when doing so what the trunks contained. NM, that the agent was not bound to inquire what the trunk contained, that the evidence was not suffi- cient to show that he had knowledge of its contents, or had reason to believe it con- tained jewelry, and that the company there- fore was not liable for a loss. Humphrcyi v. Perry, 54 Am. &» Eng. R. Cas. 29, 148 (/. S. 627, 1 3 Sup. Ct. Rep. 711; reversing 40 Am. &* Eng. R. Cas. 636.— Disapproving Kuter V. Michigan C. R. Co.. i BIss. (U. S.) 35; Minterr/. Pacific R. Co., 41 Mo. 503; Han- nibal & St. J. R. Co. V. Swift, 12 Wall. (U. S.) 262 ; Stoneman v. Erie R. Co., 52 N. Y. 429 ; Slonian 7>. Great Western R. Co., 67 N. Y. 208; Millard z/. Missouri, K. & T. R. Co., 86 N. Y. 441 ; Texas & P. R. Co. v. Capps, 2 Tex. App. (Civ. Cas.) 35 ; Butler v. Hudson River R. Co., 3 E. D. Smith (N. Y.) 571 ; New York C. & H. R. R. Co. v. Fra- lofT, 100 U. S. 24 ; Talcott v. Wabash R. Co., 21 N. Y. Supp. 318. 00. Reqiiiriiii; tiflidavil hn iu cou" teiits.—A passenger In the habit of carry- ing niercliandise in his trunk against the carrier's rules may be required to prove con- tents as a condition of receiving and check- ing it. Norfolk &• W. R. Co. v. Irvine, yj Am. iS- Eng. R, Cas. 227, 85 Va. 217,7 ^^ E. h't'P- 233. Whether a i.i Iroad company may or may not reasonably require a peddler who has been in the habit of transporting his wares as baggage to sign an affidavit as to the contents of his trunk, the court will not entertain an action at his instance when it appears that he had taken the trunk with nothing in It except wearing apparel, and insisted that it should be checked for the patent purpose of having the agent refuse to check it unless he should sign an affidavit as to its contents, and of making such re- fusal the foundation for an action against the company. Norfolk &• W, R. Co. v. Ir- vine, 37 Am. &^ Eng. R. Cas. 227, 85 Va. 217.7 S.E. Rep. 233. VI. THE OARBIEB'8 LIEN UPON BAOOAOE. 01. For passenger's fare. —The fare paid by a passenger to a carrier includes transportation of his baggage ; and the car- rier has a lien thereon for the fare, and may detain the same until payment thereof. Roberts v. Koehler, 12 Sawy. (d/. 6^) 252, 30 Fed. Rep. 94. A passenger purchased an unconditional ticket for a passage on the Oregon & C. rail- way from P. to A., and. after his ticket had been taken up by the conductor, stopped over at an intermediate point without his consent, leaving his baggage to be carried on to A. On the next day he got on the train to A. but refused to pay the fare thereto, when the conductor allowed him to remain on the train, but refused to deliver him his baggage at A. until he paid the additional fare. Held, that the journey from P. to A. was performed under one contract, modified by the action of the passenger in stopping over, whereby he incurred an additional charge for his transportation, for which the carrier had a lien on the baggage so long as it remained in its possession. Roberts v. Koehler, 30 Fed. Rep. 94, 12 Sawy. (17. 5.) 252. 03. For carriage of baggage.— If a passenger holding an excursion ticket which does not allow him to carry higga^je has a ^ BAGGAGE, 03-»7. 561 portmanteau placed in the luggage-van, without inforniing the porter that lie was travelling on uii excursion ticket, he im- pliedly contracts for the carriage of the portmanteau for hire, and the company is justified in detaining it till the carriage is paid. Rumsey v. North Eastern R. Co., 14 C. B. N. S. 641, 32 L.J. C. P. 244, II W. R. 911, 8 L. T. N. S. 666, 10 Jur. N. S. 208. 03. For advance uliari;c8 paid.— A carrier who had carried plaintifT into this country agreed to forward her baggage. He sent it by another carrier, in care of defend- ant, who advanced certain charges thereon. HelJ, that \ ?. had a lien on the baggage for such adv.iin.i;s, there being no proof that the charges had been paid to the first ciinier. Nordemeyer v. Loescher, i Hilt. {N. Y.) 499. 04. Liability for safety of baggatfe held under lien.— A railroad is liable for articles taken from a trunk which it was holding under a lien for the payment of the fare of a passenger. Southwestern R. Co. v. Bent ley, 51 Ga. 311. yil. IIMITATIOK OF LIABIIITT. 05. Power to limit the common- law liability.* — Carriers may limit their liability for the loss of baggage intrusted to them not resulting from their negligence. Laitig V. Colder, 8 Pa. St. 479. — Following Atwood V. Reliance Transp. Co., 9 Watts (Pa.) 87; Bingham v. Rogers, 6 W Us & S. (Pa.) 495.— Disapproved in Indianapolis, P. & C. R. Co. V. Allen, 31 Ind. 394. FOL- LOWED in Philadelphia & R. R. Co. v. Anderson, 6 Am. & Eng. R. Cas. 407, 94 Pa. St. 351, 39 Am. Rep. 787. U is competent for passenger carriers by specific regulations which are reasonable and not inconsistent with any statute or its duties to the public, and which are distinct- ly brought to the knowledge of the pas- senger, to protect themselves against liabil- ity as insurers of baggage exceeding a fixed amount in value, except upon additional compensation proportioned to the risk. New York C. &* H. R. R. Co. v. Fraloff, 100 U. S. 24.— Followed in The Majestic, 56 Fed. Rep. 244. It is competent for a commoii carrier to contract for exemption from liability for jewelry carried as baggage, unless its value be made known and an extra charge paid * Limiting liability for Am. & Eng. R. Cas. 292. \ D. R. D.-3'^.. e, see note, 13 thereon. The Bermuda, 27 Fed. Rep. 476, 23 Blatchf. {U. S.) 5S4.--DlSTI.\GUISHING Lebeau v. General S. Nav. Co,, L. R. 8 C. P. 88. Common carriers can only relieve them- selves from their common-law liability, as to baggage, by express contract and not by words stamped on a check, and in no case can they relieve themselves by contract for u loss resulliii)., from a want of care. Indi- anapolis iS- C. A'. Co. V. Cox, 29 Ind. 360. — Disapproving Moore v. Evans, 14 Barb. (N.Y.) ^M. 00. '.Vhat rcgiilatijus are reason- able^. — A railw.v coinpany is not precluded from making i,yvj idl arrangements for the ex- clusion of l.iggage by cheap excursion trains, although its charter requires it to carry a certain amount uf passenger luggage with- out extra charge. Rumsey ". North Eastern R. Co., 14C.B. N. S. 641, 32 L.J. C. P. 244, II W. R. 911, 8 Z. T. N. S. 666, 10 Jur. N. S. 208. At the time a travelling salesman shipped his samples as baggage he paid an excess- baggage charge, and received in addition to the ordinary brass checks an excess-baggage coupon ticket, which expressly provided that it should be surrendered with the check in order to get the baggage. Held, that the requirement providing for a surrender of the excess-baggage coupon was reasonable and proper, and not an infringement of the statute providing that common carriers shall not limit their common-law liability. Texas Mex. R. Co. V. Willis, 3 Tex. App. (Civ. C'rtJ.) 94. 07. What limitations are unrea- sonable.— The limitation of the liability of the carrier, authorizing recovery for wearing- apparel to the extent of one hundred dollars, and no more, is not valid. Davis v. Chicago, R. /. 6- P. R. Co., 83 fowa 744, 49 N. W. Rep. 77. A regulation of a carrier that it would not be responsible for any passenger's luggage unless fully and properly addressed with the name and destination of the owner thereon, is not a just and reasonable condition, within the Railway and Canal Trafiic Act, 1854, § 7, and will not be enforced. Cutler v. North London R. Co., 31 Am.SfEng.R. Cas. 105, 19 Q. B. D. 64. A railway company has no power to make a by-law relieving itself from responsibility for the care of baggage unless it is booked and paid for, in contravention of its act re- 962 BAGGAGE, 98. I a I quiring it to carry personal effects as bag- gage with the liability of the common car- rier. IVilliams v. Great Western R. Co., lo Exch. 15. Plaintiff's ticket for transportation from Hamburg to New Yorlc City, issued by de- fendant, contained a condition limiting de- fendant's liability for loss of baggage to fifty dollars. Plaintiff's baggage, consisting of wearing-apparel for herself and two children, and valued at $283, was lost on the way. Held, that a finding by a jury that the pro- vision limiting defendant's liability was un- reasonable was right. Glovtnsky v. Cunard Steamship Co., 4 Misc. (N. Y.) 266. The plaintiff was a season-ticket holder on the defendants' line from B. to K. under a special contract, by which he undertook to abide by all the rules, regulations, and by-laws of the defendants. One of such regulations was that the defendants would not be responsible for any passenger's lug- gage unless fully and properly addressed with the name and destination of the owner. The plaintiiT having with him a bag, which was not so addressed, saw it labelled for K. by one of the defendants' servants; he left the train at C, an intermediate station, and proceeded to K. by a subsequent train ; on his arrival at K. his bag was missing. There was no evidence that the bag ever reached K. Held, that the regulation of the defendants was not a just and reasonable condition within § 7 of the R. & C. Tr. Act, 1854 (17 & 18 Vic. c. 31), and could not be enforced against the plaintiff. Cutler v. North London R. Co., 19 Q. B. D. 64, 5 Ry. &* C. T. Cas. ix. 08. Effect of condition or notice printed on ticket. — (i) General rules. — To restrict the liability of a railroad com- pany as a common carrier for the loss of the baggage of a passenger, there must be proof of actual notice to the passenger of such restriction before the cars are started ; and an indorsement on the ticket given to the passenger is not enough, unless it is shown that he knew its purport before the cars started. Wilson v. Chesapeake &• O. R. Co., 21 Graft. (Va.) 654. Mauritz v. New York, L. E. &* W. R. Co., 21 Am. &* Eng. R. Cas. 286. 23 Fed. Rep. 765. Discovery of the condition after the jour- ney has commenced will not affect the rights of the passenger. Raivson v. Pentt' sylvania R. CV.,48 N. K. 212, 3 Am. Ry. Rep. 528 ; affirming 2 Abb. Pr. N. S. 220.— Fol- lowing Blossom V. Dodd, 43 N. Y. 264.— Distinguished in Elmore v. Sands, 54 N. Y. 512. Followed in Kent v. Baltimore & O. R. Co., 31 Am. & Eng. R. Cas. 125, 45 Ohio St. 284, 10 West. Rep. 459, 12 N. E. Rep. 798- Such a notice printed on the back of a ticket does not raise a legal presumption that the passenger knew of and assented to such condition before the journey was com- menced ; and whether the passenger did have actual notice of such condition before starting on the journey is a question for the jury. Brown v. Eastern R. Co., 11 Cush. (Mass.) 97. — Distinguishing Austin v, Manchester, S. & L. R. Co., 10 C. B. 454 ; Shaw V. York & N. M. R. Co., 6 Railw. Cas. 87, 13 Q. B. 347.— Distinguished im Grace v. Adams, 100 Mass. 505; Fonseca V. Cunard Steamship Co., 153 Mass. 553; Malone v. Boston & W. R. Co., 12 Gray (Mass.) 388 ; Kent v. Baltimore & O. R. Co., 31 Am. & Eng. R. Cas. 125, 45 Ohio St. 284, 10 West. Rep. 459, 12 N. E. Rep. 798. Quoted in Blossom v. Dodd, 43 N. Y. 264. The fact that a passenger receives a ticl;et, printed on the face "Look on the back," where there is a provision limiting the car- rier's liability, does not raise a legal con- clusion that the passenger had notice of such provision. Malone v. Boston &• W. R. Corp., 12 Gray (Mass.) 388. Words on a railroad ticket or baggage- check limiting the liability of the carrier to a specific amount for loss of baggage are not binding on a passenger unless, with knowledge of such limitation, he agrees to it ; and the burden of showing such agree- ment is on the carrier. Baltimore &• O. R. Co. V. Campbell, 3 Am. N. W. K. Co., 3 H. &' C. 135, xojur. N. S. 805, 33 L.J. Exch. 199, 12 W. Ji.689, 10 L. T. N. S. 302.— Overruled in Cohen v. South Eastern R. Co., L. R. 2 Exch. D. 253, 46 L. J. Exch. 417, 36 L. T. N. S. 130, 25 W. K. 475. (2) Illustrations. — Z. took a through ticket from the C. C. station of the S. E. R. Co. to P. ; the ticket was in three coupons — (i) from L. to D. ; (2) from D. to C. ; (3) from C. to P. His luggage consisted of a portmanteau and a hat-box, which were registered through to P. Upon the ticket was printed the following condition : " The company is not responsible for loss or de- tention of or injury to luggage of the pas- senger travelling by this through ticket, except while the passenger is travelling by the company's trains or boats." The port- manteau was lost on the journey between C. & P. In an action for the loss — held, thac the R. & C. Tr. Act, 1854, only applied to the traffic of the company on their own line, and therefore the company was at lib- erty to make the special contract contained in the ticket. Zunz v. South Eastern R. Co., L. R. 4 Q. B. 539, 38 L. J. Q. B. 209, 3 Ry. &* C. T. Cas. xix. The plaintiff purchased from an agent a non-transferable return ticket which had printed on it a number 01 conditions, one of which limited the liability of the com- pany for baggage to wearing apparel not exceeding $100 in value, and another re- quired tlie signature of the passenger for the purpose of identification and to prevent a transfer. The agent obtained the plain- tiff's signature to the ticket, explaining that it was for the purpose of identification, but did not read or explain to her any of the conditions ; and having sore eyes at the time siie was unable to read them . .rself. An accident happened to the train, and plain- tiff's baggage, valued at over |iooo, caught lire and was destroyed. In an action for damage for such loss — held, that there was sufficient evidence that the loss of the bag- gage was caused by defendant's negligence, and that, the special conditions printed on the ticket not having been brought to tlu; notice of plaintiff, she was not bound by them and could recover the full amount of her loss from the company. Bate v. Cana- dian Pac. R. Co., 18 Can. Sup. Ct. 697. A ticket contained a condition limiting the liability of the company for loss of bag- gage to $100, below which was a contract agreeing to the condition in consideration of the reduced rate at which the ticket was sold, with a blank space for the purchaser's signature. The agreement was not signed, and it was shown that the ticket was not sold at a reduced rate. Held, that there was no agreement by the purchaser to the con- dition. Anderson v. Canadian Pac. R. Co., 40 Am. &^ Eng. R. Cas. 624, 17 Ont. 747. 99. Stipulatious or coiuUtious in receipts for bajfgage.— A mere accept- ance of a receipt containing a memorandum, attempting to limit the carrier's liability as to baggage to $100, does not, as a matter of law, constitute a contract between tiie carrier and the passenger, where the pas- senger's attention is not called to such memorandum and he does not assent thereto. Madan v. Sherard, 73 A^. Y. 329 ; affirming 10 /. &* S. 353. — Following Blossom V. Dodd, 43 N. Y. 264. — Reviewed IN London & L. Fire I > . Co. v. Rome, W. & O. R. Co., 23 N. Y. Supp. 231, 68 Hun 598, 52 N. Y. S. R. s^i. — Limburger v. Westcott, 49 Barb. {IV. Y.) 283. Proof that an express company gave a receipt for baggage, at night, in a dimly- lighted and rapidly-running car, which at- tempts to limit the carrier's liability, is not sufficient to constitute a contract, where the provision is obscurely printed and there is nothing to show that the passenger as- sented to it. Blossom v. Dodd, 43 N. Y. 264. —Distinguishing Grace v. Adams, loo Mass. 505 ; Van Toll v. South Eastern R. Co., 104 E. C. L. 75. QcOTiNG Butler v. Heane, 2 Camp. 415; Brown w. Eastern R. Co., 1 1 Cush. (Mass.) 97. — Madan v. Shcr- rard, \oJ. &* S. {N. Y.) 353.— Distinguish- ing Grace v. Adams, 100 Mass. 505; Van Toll V, South Eastern R. Co., 104 E. C. L. 75. Following Blossom v. Dodd, 43 N. Y. 264. Notices attempting to limit a carrier's liability for lost goods or baggage are to be construed most strongly against the carrier. So a provision in a receipt attempting to limit such liability to S'oo "on any article" will be construed not as a limitation of lia> liilitv to that amount for the whole contents :\^ii 564 BAGGAGE, lOO, lOl. 1 : fe 13 I of a trunk, but as a limitation to that amount on each article that may be in the trunk. EarU V. Cadmus, 2 Daly (N. Y.) 237, /fop- kins V. Westcott, 6 Blatchf. {C/. S.) 64. After a lady had left her baggage at the ofliceof a carrier and given directions about where it should be taken, and received a check therefor, she turned back and asked a clerk to give her a receipt, which was given, containing a provision attempting to limit the carrier's liability to $!oo, but which pro- vision was not read by her until after a loss of her baggge. //e/d, that there was nothing showing such assent thereto as would con- stitute an agreement, and that she was there- fore entitled to recover full value for the baggage lost. Woodruff \. Sherrard, 9 Hun (N. K.) 322. 100. Notices posted at stations, etc. — Stage-coach proprietors are answerable as common carriers for the baggage of passen- gers, and cannot restrict their liability by a general notice that "the baggage of passen- gers is at the risk of the owners." Hollister V. Nffwlen, 19 Wend. {N. F.) 234. Camden &» A. R. &* T. Co. V. Belknap, 21 Wend. (N. K) 354. Notice in the usual form, " All baggage at the risk of the owners, ' though brought home to th-i knowledge of the passengers, will not in such cases excuse the company. Common carriers cannot, by such notice, excuse themselves from thj implied agree- ment that the vessel, coach, or other vehicle for the transportation of goods or baggage is sufficient for the business in which it is employed. Camden &* A. R. (i^ T. Co. v. Burke, 13 Wend. {N. K) ^11.— Followed IN Potts V. Wabash, St. L. & P. R. Co., 17 Mo. App. 394. — Hollister v. Nowlen, 19 Wend. (N. Y.) 234. Distinguished in Kimball V. Rutland & B. R. Co., 26 Vt. 247. Fol- lowed IN Camden & A. R. & T. Co. v. Belknap, 21 Wend. (N. Y.) 354. Reviewed in Slocum 7'. Fairchild, 7 Hill (N. Y.) 292. A passenger's luggage cannot be said to be off the line of a railway company until it is out of its custody and in the custody of some person responsible for its loss, within the meaning of a notice that the company does not hold itself responsible for any loss arising " off its lines." Kent v. Midland R. Co., L. R. loQ.B.i.u L. J. Q. B. 18, 31 L. T. N. S. 430. 23 W. R. 25. A steamboat passenger is not charged with notice posted about in the boat stating certain rules of the carrier touching the de- livery of baggage ; but if he be specially in- formed of such rules, he will be bound thereby so far as they are reasonable. Glea' son V. Goodrich Transp. Co., 32 Wis. 85. — Quoting Macklin v. New Jersey Steam- boat Co., 7 Abb. Pr. N. S, (N. Y.) 241. A statute provided that railway commis- sioners might make "regulations for the safe construction and working of the rail- ways under their charge for the transmission of goods and passengers thereon," but that such regulations must be first approved by the governor in council. Notice was posted at stations limiting the carrier's liability, but which had not been approved by the gov- ernor in council, and of which plaintiff had no notice at the time of shipping baggage over the road, which was lost en route. Held, that defendants were liable for the loss as common carriers. Willis v. European &• N. A. R. Co., 13 New Brun. 157. 101. LiniitiiiiT liability for negli- gence— Law of place.*— Passengers' lug- gage is within §7 of the Railway and Canal Traffic Act, and railway companies are liable for the negligent loss of or injury to such luggage, notwithstanding any notice or condition made and given by them in any wise limiting such liability. Cohen v. Southeastern R. Co., 46 L. J. Exch. D. 417, L. R. 2 Exch. D. 253, 36 L. T. N. S. 130, 25 W. R. 475 ; affirming L. R. i Exch. D. 217. 45 L. J. Exch. D. 298, 24 W. R. 522, 35 Z. T. N. S. 213. Approved in Doolan V. Midland R. Co., 37 L. T. 317, L. R. 2 App. Cas. 792. A railway company is not exempt from liability for damage caused by its own neg- ligence under a special contract for the transportation of troops, whereby it is pro- vided that "the baggage shall remain in charge of a guard provided by the troops, the company accepting no responsibility." Martin v. Great Indian Peninsular R. Co., 37 /. Exch. 27, L. R. 3 Exch. 9, 17 L. T. N. S. 349- If a ticket bought in England for an ocean passage, consisting of a large sheet of paper nearly covered on both sides with print and writing, with the printed heading on the face " Passengers' Con- tract Ticket," contains elaborate pro- visions for governing the conduct, rij-lits, and liabilities of the parties till the steam- ship reaches the port of destination in Mas- * See also ante, 7. BAGGAGE, 102, 103. 565 sachusetts, among other things exempting the carrier from liability for any loss arising from his negligence, the passenger, in ac- cepting and using the ticket, even if he did not read it, wii! be conclusively held to have assented to its terms ; and the stipu- lation, being valid in England, will be en- forced here, notwithstanding that a similar contract made in Massachusetts would be void as against public policy. Fonseca v. Cunard Steamship Co., 153 Mass. 553, 27 A^. E. Rep. 665.— - Distinguishing Brown v. Eastern R. Co., 1 1 Cush. (Mass.) 97 ; Malone V. Boston 4 W. R. Co., 12 Gray (Mass.) 388 ; Henderson v. Stevenson, L. R. 2 H. L. Sc. 470; Quimby v. Vanderbilt, 17 N. Y. 306; Grand Trunk R. Co. v. Stevens, 95 U. S. 655.— Followed in New York, L. E. & W. R. Co. V. Bennett, 50 Fed. Rep. 496, 6 U. S. App. 95, 1 C. C. A. 544. A contract made in the United States for the carriage of a passenger and his baggage into Canada, which contains a provision limiting the carrier's liability as to the bag- gage, is to be governed by the law of the latter country ; and a provision of a state law, where the contract was made, allowing carriers to contract against certain liabilities, will not be enforced in Canada. Brown v. Canadian Pac. R. Co., 4 Man. 396. 102. No limitatJion as against viW- ftil acts of servants. — A special contract made between the carrier and a passenger, limiting the carrier's liability to a certain amount of baggage, is not binding as against the wilful acts or torts of its employes. Mobile &* O. R. Co. v. Hopkins, 41 Ala. 486. Where a railroad company issues a free ticket, containing the provision ther.^on that "the person accepting this free ticket in consideration thereof assumes all risk of accident, and expressly agrees that the company shall not be liable under any cir- cumstances, whether of the negligence of their agents or otherwise, for any injury to the person or property," the company is not relieved thereby from liability for loss of baggage which results from the wilful act or tort of its employes. Mobile &* O. R. Co. V. Hopkins, 41 Ala. 486.— Criticising Indiana C. R. Co. v. Mundy, 21 Ind. 48 ; Wells V. New York C. R. Co., 24 N. Y. 181. Followed in Jacobus v. St. Paul & C. R. Co., 20 Minn. 125 (Gil. iio.) Not fol- lowed IN Griswold v. New York & N. E. R. Co., 26 Am. & iSng. R. Gas. 280, 53 Conn. 371, 55 Am Rep. 115. I 103. Special contracts limiting^ lir,- bility. — While a common carrier can'.iot by a general notice free itself from all lia- bility for property transported by it, yet it may reasonably qualify its liability by notice brought to the knowledge of the owner, and by special contract Jt may relieve itself from its common-law liability, except for such loss as results from negligence. Where a special contract exists, the burden to prove negligence is on the plaintiff. Smith V. North Carolina R. Co., 64 N. Car. 235. — Followed in Capeiiart v. Seaboard & R. R. Co., 81 N. Car. 438. In an action for loss of baggage, an in- struction to the jury that gave them to understand that it was of little importance whether the plaintiff omitted to read the contract to which she had signed her name, which agreed to a limitation of the liability of the company, provided the railroad com- pany had not ca11c<.^ her attention specially to its terms, was erroneous, as it was her duty to read the contract if she had the opportunity of doi ig so, and no fraud, impo- sition, or deception was practised to prevent her from doing so. Louisville, N. " If C. R. Co. V. Nicholai, 4 Ind. App. 1 19, 30 N. E. Rep. 424. The defendant railroad company, in con- sideration of a sum paid to it by the plain- tiff, undertook to safely carry the plaintiff and her baggage from Portland, Ore., to Indianapolis, Ind., by way of its own road and connecting lines. The ticket con- tained the following words: "None of the companies represented in this ticket will assume any liability on baggage except for wearing-apparel, and then only for a sum not exceeding $100." Following this was the signature of the general passenger agent, and immediately after that the fol- lowing: "I agree to the above contract. — Mrs. Osceola Nicholai." When the trunk reached its destination it was discovered that a sealskin sacque, jewelry, etc., of the value of three hundred dollars had been abstracted en route. Held, that where the exemption provided for by contract is not for loss or damage from a particular cause, but as to . amount only (as in the case at bar), and the carrier will not account nor attempt to account for a refusal to deliver the property which it undertook to safely carry, the presumption is that there lias been negligence on the part of the rarrier, and the plaintiff may recover the fuU 506 BAGGACili, I04-107. ■IV :■ i: amount of the loss she has sustained. Lou- isville, N. A. &* C. R. Co. V. Nicholai, 4 Ind. App. 1 19, 30 N. E. Rep. 424. VIU. ACTIONS FOS LOSS OF BAGOAOE. 104. Jurisdiction. — Where a party sues for money shipped in baggage, and also for baggage lost in transitu, and the allegations of his petition are sufficient to warrant a recovery for the money lost, the facts that he did not recover for the money and that the value of the goods lost was not within the jurisdiction of the court, form no ground for sustaining a plea to the jurisdic- tion. Missouri Pac. R. Co. v. York, 18 Am. &- Et^. R. Cas. 623, 2 Tex. App. (Civ. Cas.) 557. 105. Bight of OpCtion, generally.— Formerly the only remedy for negligent loss of baggage or goods was either a spe- cial action on the case for breach of the carrier's public duty to safely carry and de- liver, or assumpsit for a breach of the un- dertaking; and it seems that, under the Code, a plaintiff in drawing his complaint must still observe the distinction between a mere negligent loss and a cot version of the baggage. Samuels v. McDonald, 11 Abb. Pr. N. S. (N. Y.) 344. Tolafu v. National Steam Nov. Co., 5 Ro6t. (K. Y.) 318, 4 Abb. Pr. A^. 5. 316, 35 How Pr. 496. Where porters are licensed and required to give bond, a passenger whose baggage is lost by the negligence of such porter may maintain an action on his bond. Chillicothe ex rel. v. Raynard, 80 Mo, 185. The general railroad act of New York, passed in 1850, relating to actions against carriers for loss of baggage, is limited in its operation to domestic corporations. Gar- vey V. Camden &• A. R. Co., 1 Hilt. {N. K) 2So,^ AM. Pr. 171. A gratuitous bailee 13 not liable in an action of assumpsit for th? loss of a thing Intrusted to him; therefore, an ::ct-111. s a I *' were not liable for its loss, the liability, if there was any, being upon the railroad com- pany. Semler v. Com'rs of Emigration, i Hilt. (iV. Y.) 244. 109. Complaint — Declaration. — Where the owner of baggage sues to re- cover for its loss, it is sufficient to describe it in the complaint as one trunk, containing articles described as clothing, jewelry, etc. Montgomery &• E. R. Co. v. Culver, 22 Am. &* Eng. R. Cas. 411,75 Ala. 587. The production of a baggage-check is prima-facie evidence that plaintiff was a passenger, and, in suing for lost baggage, it is not necessary to allege that he was a passenger and the owner of tlie lost bag- gage. Illinois C. R. Co. v. Copeland, 24 ///. 332. — Followed in Candee v. Pennsyl- vania R. Co., 21 Wis. 582. A party is not entitled to have baggage carried until the relation of carrier and pas- senger exists. So a complaint alleging a contract by a common carrier to carry plain- tiff over a certain portion of its road and the delivery of baggage, and a subsequent loss of the baggage, is not open to the objec- tion, on demurrer, that it states two causes of action, one a breach of contract and the other a tort. Rothschild v. Grand Trunk R. Co., 38 N. Y. S. R. 869, 60 Hun 582, 14 N. Y. Supp. 807. A charge in a complaint against a railroad company for the loss of a valise, setting out that plaintiff was a passenger on a train of the defendant company, having bought and paid for a ticket recognized by the agents of the company, sufficiently sets out a con- tract with the company for the safe carriage of himself and baggage. Bonner v. De Mendoza, 4 Tex. App. (Civ. Cas) 392, 16 S. IV. Rep. 976. Where baggage is shipped to be tran- sported over several connecting lines on a through ticket, a complaint against the ini- tial carrier, which alleges a partnership between the defendant and the other car- riers, is sufficient to show a separate liability of the defendant. International &» G. N. R. Co. v. Folts, 3 Tex. Civ. App. 644, 22 S. W. Rep. 541. 110. Schedule attached to com- plaint. — A plaintiff sued for a trunk and its contents, which were lost as baggage, and attached to the complaint a schedule containing a list of the contents and their value, sworn to as " correct and true." Held, tha- this did not estop plaintiff from filing ii further schedule showing that the trunk contained other articles, and fixing a higher value upon articles contained in the first schedule, especially where objection was not made to the amendment, but was raised at the trial, and on a motion for a new trial. Forbes v. Davis. 18 Tex. 268. 111. Plea.— Where a railroad company is sued for loss of baggage, a plea is good to the effect that it did not operate its road in the county where suit is brought, and had no office or agent therein, though it appears that the baggage was checked to a point in the county at a station on a connecting line. Gulf, C. &- S. F. R. Co. v. Jackson, 4 Tex. App. {Civ. Cas) 73, IS S. IV. Rep. 128. In an action for the loss of a passeng- r's luggage, the defendant's plea tliat it r n- tained merchandise and that the passenger had not paid for it as such was a good answer. Belfast &* B. R. Co. v. Keys, 9 W. R. 793. 4 L. T. N. S. 841, 9 A^. L. Cas. 556, 8 Jur. N. S. 367. In an action for the loss of a passenger's portmanteau, the defendant's pica that plaintiff did not comply with the carriers' act, in declaring the nature and value of the goods which were lost while in its posses- sion as a carrier by land, was good ; but the same plea to a count alleging that the de- fendant refused to carry the plaintiff's port- manteau, but not alleging its loss, was bad. Pianciani V. London &* S. W. R. Co., 18 C. B. 226. In an action by a military officer for the non-delivery of and for injury to his uq- gage, a plea by the company that the car. riage was under a contract with the goviiP ment, and that there was no contract be- tween the company and the passenger, is an answer to the count for non-delivery, but not an answer to the count for negligence in causing injury to the luggage. Martin v. Great Indian Peninsular R. Co., 37 L.J. Exch. 27, L. R. 3 Exch. 9, 17 Z. T. N. S. 349- Where a declaration against a company alleges the non-delivery of the passenger's luggage and injury thereto by the negli- gence of the company, a plea is good which alleges that the passenger was an officer travelling in command of soldiers, and that the non-delivery and injury were caused by the mutinous acts of the soldiers. Martin v. Great Indian Peninsular R. Co. , 37 L. J. Exch. 27, L. R. 3 Exch, 9, 17 L. T. N. S. 349- ' BAGGAGE, 112, 113. 5Gir.) 203. (4) Competency of husband or wife. — Either husband or wife may be admitted to prove the quantity and value of the wearing- apparel belonging to each, including in the catalogue the wife's jewelry, and every other article pertaining to her wardrobe that may be necessary or convenient to either in trav- ciiitig. McGill V. Kowand, 3 Pa. i/. 451. — Approved in Mad River & L. E. R. Co. v. P'ulton, 20 Ohio 318. Distinguished in Metz V. California Soutliern R. Co., 44 Am. & Eng. R. Cas. 433, 85 Cal. 329. The principle of necessity, which enables a party.under certain circumstances, to prove the contents of a lost box or trunk, applies with as much, if not greater, force to the wife as to the husband. McGill v. Rowand, I Pa. St. 451. A husband may prove, in a suit by himself to recover for lost baggage, the articles lost by either himself or his wife; but on account of their interest, they are not permitted to prove their value. Illinois C. R. Co. v. Tay- lor, 24 ///. 323. The evidence of the wife of the owner is admissible to prove value and contents, but tiie rule for the admission of such evidence does not extend further than to the proof of such articles as are commonly carried in a travelling trunk. Mad River &■» L. E. R. Co. v. Fulton, 20 Ohio 318.— Approving Whitesell v. Crane, 8 Watts & S. (Pa.) 369, McGill V. Rowand, 3 Pa. St. 451. (5) Limitation of plaintiff's testimony. — Plaintiff's testimony as to the contents of a box lost by the carrier should be limited to clothing and personal ornaments. Pudor v. Boston &* M. R. Co., 26 Me. 458. Where the owner sues for lost baggage he is a competent witness to prove the con- tents of the baggage and its loss, but not the value of such contents. The contents should be described and left to the knowl- edge of the jurors to assess the value. Il- linois C. R. Co. V. Copeland, 24 ///. 332. Where suit is brought for lost baggage, the owner should only be permitted to tes- tify as to the value of such articles as are ordinarily carried as baggage, and only then where the carrier has interfered in an un- warranted manner with the goods. Garvey v. Camden 6- A. R. Co., 1 Hilt. (JV. V.) 280, 4 AM. Pr. 171.— Reviewing Snowt/. Eastern R. Co., 12 Met. (Mass.) 44.— Mad River 6- L. E. R. Co. V. Fulton, 20 Ohio 318.— Approv- ing Whitesell v. Crane, 8 Watts & S. (Pa.) 369.— Reviewed in Dill v. South Carolina R. C- ., 7 Rich. (So. Car.) 1 58. 115. AtlmiMsiuiis luid > led tratious. —Where a carrier has been sut.^ for the re- covery of lost baggage, an admission by one of its othcers, against the carrier's interest, is not competent evidence. Green v. New York C. R. Co., 12 Abl). Pr. N. S. tni, 4 Daly 553- In case of a disaster resulting in the de- struction by tire of a baggage car and its contents, the company can in no event be bound by the subsequent declarations of one of its brakemen as to the cause of the disaster. Michigan C. R. Co. v. Carrow, 73 ///. 348. A passenger by railroad train, as soon as practicable after its arrival at the place l,; destination, presented to the agent in charge of the baggage-room a check for his baggage and demanded the same, which baggage he had delivered to the carrier when he took passage on the train. The agent, being un- able to find the baggage, took the number of the check and requested the passenger to call again. On the same evening the passenger returned to the depot, but the agent informed him that he had made fur- ther search and the baggage could not be found. Held, that such acts and declarations of the agent were competent evidence for the passenger in his action against the car- rier for loss of such baggage. Baltimore &* O. R. Co. V. Campbell, 3 Am. &* Eng. R. Cas. 246, 36 Ohio St. 647, 38 Am. Rep. 617. C. sought to recover the value of a trunk and contents lost from cars of defendant. On the trial evidence was admitted that B. (who was since deceased), a clerk in an office of defendant, declared some time after the loss that he had discovered what had become of the trunk — that it had been put oil the cars at a certain point and the contents lost, etc. Held, that there being no effort in the case to fix the liability of the defendant by reason of any act or agree- ment of the supposed agent, B., but a mere attempt to prove by his declarations a fact with which he was not in any way con- nected, and of which he did not appear to have any personal knowledge, the evidence was improperly admitted. Baltimore &• O. R. Co. V. Christie, 5 IV. Va. 325. 116. Offers to compromise.— Where baggage is lost the company will not be made liable by an offer to pay a certain m 572 BAGdAGli, 117-1 I ». 'II f 5 I k' amount as compromise, nor by the voluntary acts of its agents in assisting in looking after it. Michigan S. &<• N. I. R. Co. V. Meyers, 2i ///. 627. Suit was brought to recover for a trunk lost by a train going through an opening in a bridge caused by a flood. It appeared that the company liad offered to settle for the loss connected with the disaster by pay- ing $50 to all claimants, wliere no value was fixed upon the baggage at time of shipment, which was so as to plaintiff's baggage, and that amount was offered to plaintiff. At the trial it was .idmitted that plaintiff was en- titled to I175, if entitled to recover at all. Held, that a judgment for plaintiff should be affirmed, as it would be taken that the court below understood the offer to pay $50 as an admission of liability, and that being estaLlished, he had a right to recover the $175. Fox v. Adams Exp. Co., 116 Mass. 292. 117. Burden of proof.— In an action against a carrier of passengers for loss of baggage, the burden of showing delivery of the baggage is upon defendant ; transporta- tion of the baggage to the place of destina- tion is not sufficient to discharge from responsibility. Matteson v. Ne^u York C. &-H.Ji.R. Co.,76N. F. 381. In an action for the loss of baggage, which had been stolen from the place where it had been deposited by the carrier at the place of destination, if the latter seeks to avoid liability as a carrier, and places his defense on the ground that he is only liable as warehouseman, the burden of proof is upon him to show that the baggage was stored in a safe and secure warehouse. Bar- tholomew V. St. Louis, J. &* C. R. Co., 53 ///. 227.— Followed in St. Louis & C. R. Co. V. Hard way, 17 111. App. 321. In an action against a railway company for not delivering luggage to another rail- way company at B., to be carried by such last-mentioned company from B. to C, the plaintiff must give such evidence of a non- delivery at B. as preponderates over the presumption of a delivery. It is not enough to show that the luggage never reached C, or to give evidence of a loss which is equally consistent with a loss by the one company as by the other. Midland R. Co. V. Bromley, 17 C. B. 372, 2 Jur. N. S. 140, 25 Z./. C.P.9A- 118. Variance. — An averment, in an action to recover for lost baggage, that the defendant coMipaiiy almie agreed to trans- port the baggage to a certain place and there deliver it to plaintiff, is not supported by proof that the contract was to carry to a certain place and there deliver to a con- necting carrier. Montgomery &* E, R. Co. V. Culver, 22 Am, &> Eng. R. Cas, 411, 75 Ala. 587. 119. What may be shown in de- fense, generally.— A common carrier is not liable for the loss of money of one passenger froni the valise of another pas- senger, shipped as the property of the latter. Dunlap V. International Steamboat Co., 98 Mass. 371. Where persons are sued as receivers of a railroad for loss of baggage, it is competent on defense to show that the receivers had been discharged and their possession ended before the loss. Corscr v. Russell, 20 Abb. N. Cas. {N. Y.) 316. Where a passenger in sailing from the United States to a foreign port takes mer- chandise on board the vessel in his trunk, to be carried as baggage, in the absence of anything to show fraud or concealment the owners of the vessel cannot confiscate it as an attempt to violate the laws of the United States, though it may have been taken on the vessel in violation of the carrier's rules. Tancov. Booth, 15 A^. Y. Supp. no. In an action against a railroad to recover the value of baggage lost by the company, the evidence tended to show that it be- longed to a third person, who took it away from the depot without the knowledge of the agen and then procured plaintiff to bring suit for its recovery. Held, that a letter written by such third person to a stranger to the transaction, going to show the con- spiracy, was admissible in evidence against the plaintiff. Chicago, R. I. 6r* P. R. Co. v. Collins, 56 ///. 212, 4 Am. Ry. Rep. 453. A railway company, when sued for loss of baggage, defended on the ground that the baggage was carried under a condition in the passenger's ticket limiting the carrier's liability to $100, and at the trial offered a letter written by the baggage agent to the passenger agent, asking why the plaintiff had not signed the ticket, and if her atten- tion had been called to the conditions of it, and the reply of the ticket agent, stating that the ticket was sold at full rates, and that under the rules of the company it was not necessary that it be signed. Held, that the letters were admissible as evidence, but that 1=1 i \ BAGGAGE, 120-123. 673 they were of no consequence where the ticket showed on its face that it was not sold subject to the conditions Vt which the letters related. Anderson v. Canadian Pac. li. Co., 40 Am. &* Eng. R. Cas. 624. 17 Ont. 747. — Following Kirkstall Brewery Co. v. Furness R. Co.. L. R. 9 Q. B. 468. 120. Contributory iiegligcuce as a defense.— Where a passenger's baggage is checked to the wrong station, his failure to read a check given to him, which would have shown the mistake, is sucii contributory negligence as to defeat a recovery for a delay in having it returned to him. Gonthier v. New Orleans, J. Or* G. N. R. Co., 28 La. Ann. 67. 121. Questions of fact for the Jury. — Wliere a passenger sues for a loss of bag- gage, and it appears that he was travelling by boat under a contract exempting the carrier from liability except for gross neg- lect, the case should be submitted to the jury where the only proof of negligence is that the vessel was burned at sea. Downey V. Inman &* I. S. S. Co., 2 A^. K. i>u/>p. 659. 122. Instructions to the jury.— Where suit is brought to recover for the value of a. trunk which was burned in the company's station, and the evidence shows that the company's employes were occupied at the time in saving property, which was in the line of their duty, an instruction to the effect that the company would not be liable as warehouseman for the negligence of its employes when not acting in the line of duty is properly refused, as not applicable to the facts of the case. Galveston, H. &* S. A. R. Co.v. Smith, 81 Tex. 479, 175. IV. Rep. 133- Where a trunk is burned in the compa- ny's station, and it is sued as warehouseman, and the jury has been instructed to find for plaintiff if they find a want of ordinary care, it is error to refuse when requested to further charge that the company was not liable if the jury find that ordinary care was exercised. Galveston, H. <&- S. A. R. Co. v. Smith. 81 Tex. 479, 17 S. IV. Rep. 133.— DISTINGUISH- ING Aldrich v. Boston & W. R. Co., 100 Mass. 31. Where a steamboat passenger sues for a loss of baggage from his state-room, and the owners of the vessel defend on the ground th-^t the passenger had notice that no baggagk was allowed in state-rooms, without regard to what it miglit be used for, they are not entitled to an instruction to the effect that the carrier might require all baggage " not necessary for daily use " to be deposited in a baggage-ruom. Mack' lin V. New Jersey Sleamlioal Co., 7 Abb. Pr. N. S. {N. y.) 229. 123. Duniugus recovernble, geu- evally.— In case of loss or injury to bag- ;jage through the carrier's fault, the mea- sure of damages is the value of the baggage at the place of destination. In such case the value of clothing carried us baggage is its value to the owner for use, and not merely what it could be sold for in money. Lake Shore Sf M. S. R. Co. v. IVarren, 21 Am. &* Eng. R. Cas. 302, 6 Pac. Rtp. 724. Fairfax v. New York C. &* //. A'. R. Co., 73 A'; Y. 167; affirming \\ J.&* S. 18; refer- ring to (yj N. Y.\ , 15 Am. Ry. Rep. 141, which reversed S/. A" S. 516. Texas &* P, R. Co. V. Taylor, 3 Tex. App. {Civ. Cas.) 234. Where baggage is lost, the true measure of damages is the value of the articles, and not what it cost the owner to buy other articles to replace them. Ne7i/ Orleans, J. &* G. N. R. Co. V. Moore, 40 M/;<-. 39. The true measure of damages for lost baggage is the value of the articles lost at the place where the suit is brought, and not at the place from which they were shipped. Douglass V. The Railroad, i Phila. (Pa.) 337. The measure of damages for lost baggage is its market value with interest, if rt has a market value, and if not, then the value of its use to the plaintiff. Spooner v. Hanni- bal (S- St. J. R. Co., 23 Mo. App. 403. Texas &* P. R. Co. V. Ferguson, 9 Am. &• Eng. R. Cas. 395, I Tex. App. {Civ. Cas.) 724. Texas &* P. R. Co. V. Cook, 2 Tex. App. {Civ. Cas.) 576. In the absence of proof as to the contents of a trunk and their value, which is lost as baggage, the jury may give damages pro- portioned to the value that the articles were worth, in their judgment, with what the trunk did and might fairly contain. Dill V. South Carolina R. Co., 7 Rich. {So. Car.) 158.— Reviewing Mad River & L. E. R. Co., V. Fulton 20 Ohio 318. Where a trunk is checked as baggage and arrives at its destination with some of the contents lost and others damaged, and the same is tendered by the company to ilie owner in a reasonable time, it is his duty t» receive it, and upon failure to do so the amount of recovery against the company is limited to the value of the goods actually 'W^^l^ 574 BAGGAGE, 124-127. I lost and the damage to the others, and not ' the whole value of the trunk and its con- tents. Gu//, C. &* S. /■'. A'. Co. V. Jackson, 4 Tex. App. (.Civ. Cas.) 73, 15 S. W. Rep. 128. Suit was brought aj^ainst a railroad com- pany to recover for luces which had been transmitted without purchase for many gen- erations, and therefore had no known market value, and which were shipped as baggage. Held, that their value could not be assessed upon mere conjecture, and that, in the ab- sence of any evidence to show their market value, only nominal damages could be re- covered (or the loss. Fraloff v. New York C. &- //, K. R. Co., 10 Blatchf. (U. S.) 16. 124. ExpeiiHCH of Hearcli. — The owner of lost baggage cannot recover for money expended in searching for it. Mis- sissippi C. R. Co. V. Kennedy, 41 Miss. 671. Texas &• P. R. Co. v. Ferguson, 9 Am. &> ling, A'. Cas. 395, I 7'ex. App. (Civ. Cas.) 724. Si. Louis, 1. M. &^ S. R. Co. v. Hindsman, i Tex. App. {Civ. Cas) 82, Provencher v. Canadian Pac. R. Co., S Montr. L. R. {Sup. CI.) 9. In an action for loss of baggage plaintifl is not entitled to recover damages for ex- penses incurred in searching for his bag- gage, except such as were tiecessarily in- curred in ascertaining whether the baggage had reached its destinsition. Texas 6^ P. R. Co. V. Ferguson, 9 Am. &* Fng. R. Cas. 395, I Tex. App. {Civ. Cas.) 724. PlaintifT, a passenger on defendant's rail- way, gave his baggage in charge of its ser- vants. The baggage having been lost, plain- tiff sued for the value of the articles and for damage sustained in consequence of such loss, both in expense incurred thereby and in loss of time. Held, that the damage must be confined to reasonable expenses of searching for the baggage, such as tele- graphing, cab hire in going to defendant's office, etc. Morrison v. European &* N. A. R. Co., 15 New Brun. 295. Suit was brought against a railroad com- pany, claiming $50 for the value of baggage lost; increased travelling expenses, hotel bills, etc., incurred by reason of the loss of baggage, $64.20; for loss of an engage- ment as a school - teacher and preacher, resulting from the loss of baggage, $350. Held, that the two last items were special, and were not recoverable unless the com- pany was informed at the time the baggage was shipped of the facts which would ren- der such damage probable in the event of a loss. Ttxas &* P. R. Co. v. Taylor, 3 Tex, App. {Civ. Cas.) 234. 125. DuiiiuKCH for delay.— Where a passenger sues to recover for a delay in the delivery of baggage, the measure of damages is the value of the baggage to the owner during the time of the delay. (Jul/, C. &* S. F. R. Co. V. I'amil, 2 Tex. Civ. App. 427, 21 S. IV. Rep. 303. The ordinary measure of damages in case of delay in the trans|)<>rtati()n and delivery of baggage is the value of the use of the same during tlie delay, which in most cases would be the rental value of the property during the time of the delay; but this rule does not apply where the delayed baggage is the passenger's own wearing -apparel, which might have no rental value, the measure of damages in such case being the value of the use of the apparel to the owner during the time, excluding from the esti- mate damages which are remote, specula- tive, or uncertain. Te.ras &> P. R. Co. v. Taylor, 3 Tex. App. {Civ. Cas.) 234. 120. ExecNsive damage^.— What is wearing apparel is necessarily a question of fact, and what is reasonable and customary wearing apparel to be carried by a traveller upon a particular journey is also a question of fact, to be determined with reference to the tastes and habits of the traveller, his pecuniary circumstances, position in society, and the conveniences and necessities of the particular journey. So where a foreign lady of high rank and large estate was travelling extensively in the United States and other countries, it was held to be a question of fact for the jury to determine the amount and value of the baggage that she had a right to carry as such ; and where the ques- tion was properly left to the jury, under evidence warranting their finding, a verdict in her favor for $10,000 for laces lost from her trunk while in the hands of a railroad company will not be disturbed. Fraloff \, New York C. 6- //. R. R. Co., 48 How. Pr. {N. F.) 535 ; affirmed, 100 U.S. 24. A lady travelling away from home had all her clothes, except those that she was wearing, in her trunk, which was shipped as baggage, and by the negligence of the car- rier they were delayed about one month. Held, that a verdict in her favor for $125 would not be set aside as excessive. Gulf, C. <^ • J.F.R. Co.v. Vancil, 2 Tex. Civ. App. 4i7. n S. W. Rep. 303. 127. Costs.— Where baggage has been BAGGAGH, 12H-13]. 575 IVIicrc a y ill the damages ic owner If, C. &- //A 427. found after suit ha« been brouglit, und it hai been accepted by the owner, the cuin- pany is only responsible for the taxal)le costs incurred up to date of delivery. Provencher V. Canadian Pac. R. Co , 5 Montr. L. R. (Sup. Ct.) 9. IZ. OLOAX BOOKS PABOXL BOOMS. 128. Duty ol' ooiiipuuy to deliver tliluir depoHited.— In the absence of any stipulation, there is an implied contract be- tween a railway company and a passenger depositing a parcel in a cloak-room at a sta- tion, paying the usual charge, that the com- pany will deliver the parcel on reasonable request and in a reasonable time. Stallard V. [jreat Winern P.. Co., 2 B. &» S. 419, 8 Ju/. N. S. 1076, 31 L. J. Q. B. 137, 10 W. R. 488, 6Z. r. 217. A railway company which receives a pas- senger's portmanteau in its cloak-room, giving him a ticket providing that it would not deliver up luggage except to persons presenting the proper receipt, is bjuiid to deliver up the portmanteau on Sunday as well as on other days, on a reasonable re- quest and within a reasonable tiiiic Whether there is an unreasonable delay owing to which the passenger loses his train and is compelled to suy overnight is a question for the jury. StuUard v. Great Western R. Co., 2 B.&*S. 419, 31 L. J. Q. B. 137. 129. Liability I'ur Iohh, geucriilly. — Where a commercial traveller deposits a case of patterns in a station waiting-room and it is lost, in an action against the com- pany as warehouseman he cannot recover damages beyond the actual value of the article lost. Anderson v. North Eastern R. Co.. 4 L. T. 216, 9 IV. R. 519, 17 & 18 Vic. c. 31, § 7, does not apply to the loss of a travelling-bag deposited by a passenger in the cloak-room at a railway station, the passenger taking and paying for a ticket therefor. Van Toll v. Souih- Eastern R. Co., 12 C. B. N. S. 75, 31 L. J. C. P. 241, 8 Jur. N. S. 1213, 10 W. R. 578, 6 L. T. 244. 130. Limitation of liability in ticket or clieck.— If a railway company stipulates that it will not he liable for articles deposited in its cloak-room exceeding the value of ;£io, this stipulation protects it from liability for delay in delivering an article exceeding the value named, at least where the delay is not-caused by its wilful act. Ptpptr V. .^outh Eastern R. Co., 17 L. 7-. 469. Conditions in a ticket received by a pas- senger depositi'ig parcels in a station cloak- room, exempting the company from liability for any package beyond the value of /s unless the value is declared and increased chaigcs are paid, are applicable to a loss owing to the failure of the servants of the company to put the parcels into the cloak- room, leaving them in a vestihule without any protection. Harris v. Great Western R. Co., 45 L.y. Q. n. 729. /,. A'. I Q. B. D. 515, 25 W.R.63. 34 Z. ■/. 647. The owner of a bag exceeding the value of £s deposited it in a railway cloak-room and received a ticket with tiie following conditions: "The company are not to be answerable for loss of any anicle exceeding the value of £^ unless at the time of delivery the true value be declared, and a sum at the rate of id. for every 20i-. of the declared value be paid for such article," above the ordinary charge. The bag was delivered by mistake to a wrong person and was never recovered, //eld, that the word " loss" in- cluded misdelivery and that the railway company were not liable. Skipwiths. Great Western R. Co., 59 Z. P. 520, 6 Ay. &» C. T. Cas. Ixx. 131. Depositor, when bound by conditlonH on check.— A passenger de- positing a travelling-bag in a cloak-room at a station will be presumed to have assented to the terms of a notice on the ticket which he received for it. Van Toll v. South East- ern R. Co., 12 C.B. N. S. 75, 31 L. J. C. P. 241, 8 Jur. N. S. 1213, 10 W. R. 578, 6 Z. T. 244. Where a ticket given to a person deposit- ing a parcel in a station cloak-room plainly refers to conditions printed on the back, the depositor is bound thereby although he may not have read the conditions. Harris V. Great Western R. Co., 45 Z. /. Q. B. 729, Z. R. I Q. B. Z>. 515, 25 W. R. 63, 34 Z. T. 647. When a person delivers a p^'cel at a sta- tion cloak-room and receives a ticket with conditions on the back limiting the com- pany's liability, he is not bound if he does not know there is writing on the ticket ; but if he knows there is writing containing con- ditions he is bound ; if he knows there is writing but does not know that it contains conditions he is bound, if in the opinion of the jury reasonable notice is given. Parker ■HR ■M 676 BAILMENT, 1.2. a I V. SoutA Eastern R. Co., 37 L. T. 540, 25 Jf . /?. 564, Z,. i?. 2 C. P. D. 416. 46 Z. /. C. />. 768, 3 Ry. &* C. T. Cas. xiji. It should not be left to the jury to decide whether a passenger who deposited a parcel in a station cloak-room was aware of a con- dition printed on the back of the ticket he received limiting the liability of the com- pany, and whether he was under any obliga- tion to make himself aware of it, the iace of tlie ticket having on it the words " See back." Parker v. South Eastern R. Co., yj L. T. 540, 25 W. R. 364, L. R. 2 C. P. D. 416, 46 L.J. C. P. 768; reversing L. R. i C. P. D. 618, 45L./.C.P.siS.3A^- 7-. 654. BAOOAOE CASS. Injury to passenger riding in, see Carriage OF Passengers, III, 7. BAOOAGE-HASTER. Effect of delivery of baggage to, see Bag- gage, 49, 63. BAILMENT. Of baggage by passenger after arrival, see Baggage, 71. Right of bailee to sue for killing stock, see Animals, Injuries to, 314. See also Pledge, etc. ; Warehousemen. 1. Sale or bailment. — Certain boat- builders engaged to build boats for a canal company, which kept lumber for such pur- pose, but not for sale generally. Lumber had been delivered at various times, and at first it was paid for in cash, but afterward credited on the price of the boats. The lumber in suit was furnished and a bill sent to the builders, who became insolvent and sold the lumber to plaintiffs, from whom the canal company took it without permission. ^VM, in an action for such taking, that whether the delivery to the builders was a sale or a bailment was for the jury. Crosby V. Delaware &- H. C. Co., ^^N. Y. S. R. 763, 59 Hun 617, 13 N. Y. Supp. 306 ; reversed in 128 N. Y. 641, mem. 40 N. Y. S. R. 85, 3 S/tv. App. 550. — Following Crosby v. Delaware & H. C. Co., 119 N. Y. 334, 29 N. Y. S. R. 453. 3. Rights and liabilities of bailee.* — Where a bailment of and an injury to goods • Liability of comrrion carrier as bailee, sec note, 6 L. R. A. 853. while in the hands of a bailee are proved, the law presumes negligence, and imposes upon the bailee the burden of showing the degree of care required by the nature of the bailment. Rice v. Illinois C. R. Co., 22 ///. App. 643. In an action for goods lost by a bailee it is generally optional with the plaintiff to declare against the bailee in form ex con- tractu, or in tort ; but in whatever form he may frame his declaration the action is still one of contract, wherever the liability of the defendant in fact arises out of a contract. Belmont Coal Co. v. Richer, 31 W. Va. 858, 8 S. E. Rep. 609. Bailments for the benefit of the bailor de- positum or ntandatum are founded upon ex- press contract, and require the assent of the bailee to make him responsible. In such case the bailee is required to use only slight care, and he can be made liable only for fraud or gross negligence. Belmont Coal Co. V. Richer, 31 W. Va. 858, 8 S. E. Rep. 609. The delivery of a non-negotiable instru- ment to a bailee for the purpose of trans- mitting it to a third party does not so clothe such bailee with the indicia of title as to give validity to a fraudulent transfer of such instrument. New Jersey Midland R. Co. v. Hitchcock, 14 Atn. &* Eng. R. Cas. 598, 37 N.J. Eg. 549. A bailee cannot avail himself of the title of a third person (though the person be the true owner), for the purpose of keeping the property for himself, in any case where he has not yielded to the paramount title. But he can show that his bailor has parted with his title. Cole v. Wabash, St. L. &» P. R. Co., 21 iMo. App. 443. The owner of a horse, who hires it to a street-railway company, undertakes that it is reasonably fit and suitable for the work of hauling cars for which it is hired, and the company has the right to rely upon its being fit and suitable for such work, and is only required to use and treat it with rea- sonable care ; but if, after trying the animal at such work, it is plainly manifest that it is unfit for it, and that further use at such work would be injurious and would endan- ger its health and life, it is the duty of the company to abstain from further use with- out notifying the owner ; the company has no right to abuse the animal. Bass v. Can- tor, 123 Ind. 444, 24 N. E. Rep. 147. It is the usage in this country for all railroad companies receiving cars from BAILMENT, 3, 4. 577 proved, imposes ring the e of the 22 ///. other roads to make necessary repairs at their '"wn expense, unless the car is in- spected and branded as defective when received ; and in view thereof, a company which claims cars belonging to another road, and pending a judicial determination of the title thereto, is by agreement per- mitted to retain and use them, subject to a rental in case the decision is against it, can- not, after such decision, set off against the rental any claim for the cost of repairs. Central Trust Co. v. Wabash, St. L. &• P. R. Co., 1,0 Fed. Kep. 857. A railroad company hired a slave from the plaintiff to work on its road, and it was asjreed that the slave should not be employed on the cars or locomotives, but that he might be carried on the cars or locomotiv.^s " from any one place 10 another place on the railroad where his services may be required." The slave, with the knowledge of the con- ductor, went on the cars and was carried beyond the place at which his services were that day required, and in jumping from the cars while they were in motion, was killed. Held, that the company was liable to the * plaintiff for the loss. Duncan v. South Carolina R. Co., 2 Rich. {So. Car.) 613. The defendant in error hired to the plaintiff \n error, for the year 1856, two slaves. The contract of huiug contained the following stipu'ation : " And all risks in- curred, or liability to accidents whilst in said service, is compensated for and covered by the pay agreed upon ; the said railroad company assuming no responsibility for damages frorr. accident, or any cause what- ever." The stipulation does not relieve the company from liability for any injury or loss resulting from the wilful wrong or gross negligence of said company or its agents, but it is responsible for the same. Memphis &' C, R. Co. v. Jones, 2 Head (Tenn.) 517. — Approved in Runt v. Herring, 21 N. Y. Supp, 244. Reviewed in Nashville & C. R. Co. V. Carroll, 6 Heisk. (Tenn.) 347. 3. Care and diligence required.— It is well settled that if a mandatary under- take the busin.^ss submitted to him he is bound to use a degree of diligence and at- tention adequate to the performance of his undertaking, and whether or not such dili- gence has been used is a question for the jury, in an action against him by the man- dator for loss. Kirtland v. Montgomery, i Swan (Tenn.) 452. 1 U. K U.— 37. Where a bailment is made for the exclu- sive benefit of the bailor, as in the case of a railway company carrying a passenger's trunk containing articles of great value without reward and without knowledge of its contents, the bailee is only obligated to slight care, and is liable only for gross neg- ligence. Michigan C. R. Co. v. Carrow, 73 ///. 348.— Approving Collins v. Boston «S M. R. Co., 10 Cush. (Mass.) 506. Distin- guishing Jordan v. Fall River R. Co., 5 Cush. (Mass.) 69; Cincinnati & C. A. L. R. Co. z/. Marcus, 38 III. 219; Kuterz/. Michigan C. R. Co., I Biss. (U. S.) 35. Persons receiving baggage as bailees without hire can be held liable only upon proof of want of ordinary care in keeping it, or of an actual subsequent appropriation of it to their own use ; but in order to estab- lish the liability in either case it must be shown that the baggage came into their possession for the purpose of being kept by them subject to the call of the owner. Samuels v. McDonald, 1 1 Abb, Pr. N, S. {N, y.) 344, 42 How. Pr. 360. A railroad company allowing goods to re- main on the cars at tlie place of destination as an accommodation to the consignee is a bailee without reward, and therefore only liable for a loss resulting from its gross neg- lect. Knowles v. Atlantic &* St. L. R. Co. , 38 Me. 55. When the bailor or depositor not only knows the general character and the habits of the bailee, but the place where and the manner in which goods deposited are to be kept, he must be presumed to assent in ad- vance that his goods should be thus treated, and if under such circumstances they are damaged or lost, the bailee is not liable. So held, where a railroad company, after carry- ing goods to the end of its line, permitted the owner to push the car onto its wharf, there to remain until it should be conveni- ent for the owner to reship by vessel, and the goods were lost by reason of the wharf giving way. Knowles v. Atlantic 6- St. L. R. Co., 38 Me. 55. 4. Bailee's lien.— A railway company entered into an agreement with A. for the delivery to it of a certain quantity of coal, to be carried by it for hire, in A.'s cars, the company to have the right to detain any cars of A. on certain defaults on his part. A. agreed with B. to supply a portion of the coal in cars which had been hired for a term from A. by B., but relet for hire Ih 678 BAILMENT, 5, «.— BALTIMORE & OHIO R. CO., 1-3. m I 3 I I. '• from him tu A. A. made default, and the company seized and detained the cars then on the line, which were in fact sent by B. under his agreement with A. Ne/d, that company could not retain such cars as against B. North v. Great Northern R. Co., tjur. N. S. 98. 5. Redelivery of subject of bail- ment. — Where property is not put in bailee's charge by the owner, but comes into his possession through the owner's neglect— as where a passenger inadvertently leaves a salcliel on a car — and where he may not know to whom it belongs, or by whom it was left, he should not be held responsible for delivering it to the wrong person, if he has exercised all thie care and vigilance that could reasonably be expected of him under the circumstatices. Morris v. Third Ave. R. Co., I Daly {N. V.) 202, 23 //ow. Pr. 345- If a slave hired for a term die during the term, the hire must be apportioned, even though his death was caused by the negli- gence of tlie hirer. Muldrow v. Wilmington &*M. R. Co., 13 Rich. (So. Car.) 69. 6. Action by bailee against third persons.— Where the bailee of property delivers it to a carrier for transportation, either the bailee or bailor niay maintain an action against the carrier for the loss of the property. Elkins \. Boston &• M.R. Co., 19 A^. H. 337. A bailee of property who has an interest in it may maintain an action in his own name for any injury done to it, either tort- wise or by the breach of any obligation or duty which another may be under in refer- ence to it. White v. Bascom, 28 Vt. 268. A bailee has a right to sue for damages for injury to the thing bailed which goes beyond the particular loss which he, by by reason of his possession, has sustained. So where a horse was injured by coming in contact with a street car while in the posses- sion of one who had hired it for the day, it was held, that he might recover for the full injuries to the animal. Jatho v. Green 6- C, St. Pass. R. Co., 4 Phila. {Pa) 24. Cloth was sent to plaintiff to be made into suits and returned. After being made up plaintiff delivered it to a railroad com- pany to be carried back to the owners. Held, that he had not such an interest as bailee as would entitle him to recover for a loss. Mors* V. Androscoggin R. Co., 39 Me. 285. BALTIMOBE & OHIO B. CO. 1. Appointment of directors. — The city of Baltimore held a large amount of stock in the Baltimore & Ohio Railroad Company, which stock was increased by taking additional shares derived from divi- dends declared on the original stock. The city was entitled to appoint directors of the company to represent its original stock. Held, that it was not entitled to appoint further directors to represent the additional stock. Wheeling v. Mayor, etc., of Balti- more, I Hughes {U. S.) 90. 2. Charter powers, generally.— The B. & O. R. Company is not an ordinary pri- vate corporation, created only for the pecu- niary benefit of its stockholders. The powers granted to it are of the most exten- sive and comprehensive kind, involving in their exercise great public interests, to promote which was tlie cliief object of its charter. Mayor, etc., of Baltimore v. Balti- more Gf O. R. Co. , 2 1 Md. 50. To induce the company to accept the act of March 6, 1847, the city of Wheeling and the company entered into a contract by which Wiieeling undertook to do certain things therein specified ; and the committee of the company agreed to recommend to it to accept said act : " it being the intention of the parlies to the agreement, among other things, to secure to the city of Wheel- ing the practical benefits of the terminus of the Baltimore & O. R. according to the provisions of said law." Held, that the company is not forbidden by the contract to connect with the Ohio river, or with a rail- road in the state of Ohio, at any point be- tween the mouth of Grave creek and Wheel- ing. Baltimore 6- O. R. Co. v. Wheelitig, 13 Gratt. (Va.) 40. 3. Power to act as warehouseman. — The Maryland act 1826, ch. 123, did not authorize the company to carry on the gen- eral and ordinary business of a warehouse- man ; and if the act 1830, ch. 117, or any subsequent act, did authorize the company to receive and charge for the storage of grain and other freight generally, the gross receipts derived from tlie exercise of this special privilege or franchise were liable to the tax imposed by the act 1872, ch. 234. State V. Baltimore &^ O. R. Co., 48 Md. 49. If no such power had been conferred, and these structures were owned and used by the company for the purpose of carrying on BALTIMORE & OHIO R. CO., 4-«. 579 .CO. ctors. — re amount > Railroad Teased by from divi- ock. The ;ors of the nal stock, to appoint additional o/ Balti- Illy.— The jinary pri- the pecu- ers. The lost exten- volving in erests, to iject of its ■e V. Balti- pt the act eeling and on tract by do certain • comnuttee mend to it e intention nt, among of Wheel- erminus of ng to the , that the :on tract to nth a rail- I point be- nd Wheel- Whetlittg, iiiseniau. 3, did not n the gen- rarehouse- 17. or any company storage of , the gross ise of this : liable to 2, ch. 334. 8 Md. 49. erred, and 1 used by irrying on a business separate from its business and obligations as a carrier, then sucii structures were taxable according to valuation as other real property. State v. Baltimore &* O. R. Co., 48 Afd. 49. 4. Power to run hotels. — The com- pany is not authorized by its charter to build and conduct hotels for the accommodation uf the public generally, but as hotels for the accominodaiion of its passengers are nec- essiiry to its business, they are therefore within its charter, which would include its Cumberland and Viaduct hotels, being mainly designed for the accommodation of passengers and for ticket and telegraph ofhces and waiting-rooms ; and under its general charter, exempting its stock from taxation, the gross receipts of these hotels are exempt ; but its Oakland and Deerpark hotels, being used primarily as summer resorts, and not being necessary to the oper- ation of the road, are not so exempt ; but tiiey can only be taxed as other real prop- erty and are not liable to a tax on their receipts, under the Maryland act of 1872, ch. 234. State V. Baltimore &• O. K. Co., 48 Mtl. 49. 5. Power to construct or control lateral roads— Taxation. — The author- ity given to the company by the Maryland act 1836, ch. 276, to subscribe towards the construction of any lateral or connecting road, and to acquire an interest therein, not exceeding two-fifths of the estimated cost of constructing such road, is a distinct priv- ilege or franchise granted to the company, and the gross receipts derived from the interest thus acquired in such lateral or con- necting road are liable to the tax levied by the act 1872, ch. 234. State v. Baltimore &* O. R. Co.,4,% Md.\<). The Metiopolitan Railroad, having been built, not under the provision in the original charter which authorized the Baltimore & Ohio Railroad Company to construct lateral roads, but under the act 1865. ch. 70, which did not exempt the projected road or its franchises from taxation, the gross receipts of the Metropolitan road were subject to the tax imposed by the act 1872, ch. 234; but no separate account having been kept of such receipts, they having been mingled with those derived from the main stem of the Baltimore & Ohio Railroad, the only rule by which to approximate to the receipts of the former was to make them bear the same proportion to the entire gross receipts derived from the main stem in the state, as the number of miles of the Metropolitan road bears to the entire length of the Balti- more & Ohio Railroad. State v. Baltimore 6- O. R. Co., 48 Md. 49. No power is conferred on the company by its charter to acquire or hold any interest in steamship or steamboat lines; but such power is granted by the Maryland act of 1868, ch. 471, § 218, and being a separate and distinct franchise, the receipts or dividends derived from the interest acquired in such steamship or steamboat litics are liable to the gross-receipt tax imposed by the act of 1872. State v. Baltimore &• O. R. Co., 48 Md. 49. Bonds of other railroad companies, held outside of the franchises of the company, sought to be taxed are liable to taxation according to their market value, as other bonds. State v. Baltimore 6- O. R. Co., 48 Md. 49. The gross receipts derived from all prop- erties and investments owned by the com- pany under franchises granted subsequent to its charter, and upon which no exemption from taxation was engrafted, were liable to the tax imposed by the act 1872, ch. 234, if earned in the state. State v. Baltimore &* O. R. Co., 48 Md. 49. A short lateral road diverges from the main stem of the Baltimore & Ohio Rail- toad at Benwood and terminates upon the bank of the Ohio river, opposite to Belair, the station of the Central Ohio Railroad, and communication between the two roads for goods and passengers is kept up by a steam ferryboat, //fid, that, under the Md. act of 1836, ch. 276, which authorized the Baltimore & Ohio Railroad Company "to subscribe towards the construction of any lateral, continuing, or connecting road, and to acquire any interest therein, to an extent not exceeding two-fifths of its estimated cost," the Central Ohio Railroad is a con- necting road, and that the Baltimore & Ohio Railroad Company may lawfully loan or furnish money to aid in its construction and take a mortgage or other-security therefor. Mayor, etc., of Baltimore v. Baltimore &• O. R. Co., 21 Md. 50. O. Use of track by other roads.— The company is not subject to the operation of the act of 1874, ch. 446, of Maryland, re- quiring railroads crossed by or connecting with any other railroads to allow the latter the use of their tracks for a certain fixed ■ ,,.■ 580 BALTIMORE & POTOMAC R. CO., 1.— BANKRUPTCY, 1. \ s S & s S I li^" .'i:.,i. . compensation. Pennsylvania R. Co, v. Baltimore Sf O. R. Co., 14 Am. &* Eng. R. Cas. 79, 60 Mil. 263. 7. Use of track of other roads.— Tlie company had a contract with the Philadelphia, Wilmington & Baltimore Railroad, which was controlled by the Pennsylvania Railroad, to form a connection at Philadelphia, and for the latter road to receive the cars of the Baltimore & Ohio road at Philadelphia and transport the same to New York, which contract, by its terms, might be terminated on thirty days' notice. Upon such notice being given the Baltimore & Ohio Company filed a bill to compel the Pennsylvania Company, as a common car- rier, to receive and transport its cars. Held, that in order to justify^ mandatory in- junction, as prayed for, upon filing the bill, plaintiff's right should be quite clear, and not being so, the injunction was refused. Baltimore &• O. R. Co. v. Pennsylvania R. Co., 17 P/iila. (Pa.) 569. 8. Suits by and against.— Under the Va. act of March 8, 1827, the Baltimore & Ohio Railroad Company became a domestic corporation as to that state, and may sue and be sued in its courts as such. Baltimore «&-0. R. Co. V. Gallahue, 12 G^raW. ( Fa.) 655. — Approved in Goshorn v. Supervisors, i W. Va. 308. Quoted in Dixon v. Order of Ry. Conductors, 49 Fed. Rep. 910. Balti- more & O. R. Co. V. Pittsburg, W. & K. R. Co., 10 Am. & Eng. R. Cas. 444, 17 W. Va. 812. Reviewed in Baltimore & O. R. Co. V. Wightman, 29 Gratt. (Va.) 431. BALTIMORE & POTOMAC R. CO. 1. Terminal facilities at Washing- ton.— The charter of the Baltimore & Potomac Railroad Company, act of Con- gress of February 5, 1867, authorizes it to take and use for depot purposes, with the turnouts necessary to reach it, any lots of ground in the city of Washington contigu- ous to the line of its road ; that is to say, any lots between the front of which and the line of the road no other lots intervene ; and for this purpose square 232 is contiguous to the line of the road, although by the recess caused by the intersection of several streets it does not touch Maryland avenue, along which the road runs. Baltimore &* P. R. Co. V. Etimonils, 3 Mackey {D. C.) 526. The company has no legal iiuihority to use its tracks on Maryland avenue, between Ninth and Tenth streets, in the city of Washmgton, as a general shifting-ground for its cars. Fitzgerald v. Baltimore &- P. R. Co., 8 Mackey [d. C.) 513. The act of congress permitting the com- pany to lay in the city of Washington, at or near its depots or stations, "as many tracks as its president and board of directors may deem necessary," does not authorize the company to use those tracks for the purpose of shifting cars and making up and breaking up trains in the conduct of its general busi- ness; but the use of such tracks must be limited and restricted to the necessary operations of said railroad, connected with the careful use of the depot or station at or near which the said tracks are laid. Hopkins V. Baltimore &* P. R. Co., 6 Mackey (D. C.) 311.— Reviewing District of Columbian. Baltimore & P. R. Co., 1 14 U. S. 460. On Februarys, 1 867, congress authorized the company to construct a lateral branch of their road into the District of Columbia, and prescribed how the road might pass along the public streets and alleys to the point of terminus within the city of Wash- ington, and in no way subjected the rail- road corporation to the control or super- vision of the municipal government of said city. Held, therefore, that said corporation was exempted from all interference from such city government, and that it was erroneous to admit in evidence on the trial an ordinance of the common council in reference to the use of a street by said com- pany. Barnes v. District of Columbia, i MacArth. (Z?. C.) 322. BANKRUPTCY. 1. Operation of the act upon rail- roads. — Railroad corporations are "mon- eyed business or commercial corporations," within the meaning of the bankrupt act of •867, § 37, and may therefore be proceeded against as such. In re California Pac. R. Co., 3 Sawy. {U. S.) 240.— Quoting Winter V. Iowa, M. & N. P. R. Co., 7 Bankr. Reg. 291.— Winter v. Iowa, M. &* N. P. R. Co., 2 Dill. {CI. S.) 487.— Approving Alabama, etc., R. Co. V. Jones, 5 Bankr. Reg. 97 ; Adams v. Boston, etc., R. Co., 4 Bankr. Reg. (99), 314; Sweatt v. Boston, H. & E. R. Co., 3 Clifi. (U. S.) 339. 5 Bankr. Reg. 234. —Followed in New Orleans, S. F. & L. R. Co. 7/. Delamore, 114 U. S. 501. — Adams v. Boston, H. &* E. R. Co., i Holmes {U. S.) ^m te BANKRUPTCY, 2. 681 30.— Quoting Hall v. Sullivan R. Co., 11 Law. Rep. 138.— Followed in New Orleans, S. F. & L. R. Co. V. Delamore, 1 14 U. S. 501. — Rankin v. Florida, etc., R, R. Co., i Bankr. Reg. (196) 647 ; Adams v. Boston, etc., R. Co., 4 Bankr. Reg. (99) 314; Alabama, etc., R. Co. V.Jones, 5 Bankr. Reg. 97 ; Sweat t V. Boston, H. &* E. R. Co., 5 Bankr. Reg. 234 ; In re Southern Minn. R. Co., 10 Bankr. Reg. 86 ; In re Union Pac. R. Co., 10 Bankr. Reg. 178. It is within the general power of congress to enact bankrupt laws, and there is nothing to prevent such laws from embracing in their effect railroad corporations whicli are chartered by state laws ; su_! corporations are not " instiiutions or means of govern- ments," such as congress has no jurisdiction over. Sweatt v. Boston, H. &• E. R. Co. , 3 Cliff. (,U.S.-)'sy). Characteristics of a public nature attach to every corporation, inasmuch as they are created for the public benefit ; but if a cor- poration is not created for the administra- tion of political or municipal power, it is private, witiiin the meaning of the bank- ruptcy act, unless the whole interest be- longs to the government. Sweatt v. Boston, H. &- E. R. Co., 3 Clif. ([/. S.) 339. The district courts of the United States iiave the same jurisdiction to adjudge rail- road corporations bankrupt as any other debtors. Sweatt v. Boston, H. &* E. R. Co., •z Cliff. (u.s.)m. A railroad company is a j^rivate corpora- tion, and is not such a public corporation as to be a necessary means of state govern- ment, whicii would exclude federal control ; and therefore the general power of congress to pass uniform bankrupt laws includes the power to authorize the federal courts or registers in bankruptcy to sell and transfer a railroad franchise in proceedings in bank- ruptcy, though the railroad was chartered by state laws. Sweatt v. Boston, H. &• E. R. Co., 3 Cliff. {U. S.) 339. The fact that a railroad company is created under state laws, subjecting it to certain duties and liabilities, and declaring that these liabilities are not transmissible, and that the corporation's duties cannot be delegated, the corporation itself not being vested with the power of transferring these duties, does not operate to exempt them from the effect of the general bankrupt laws. Adams v. Boston, H. &* E. R. Co., 1 Holmes {U.S.) 30. 2. Jiirisclictionul questions.'*'— The United States bankruptcy court has juris- diction to declare a railroad company a bankrupt and to administer its property. New Orleans, S. F. &* L. R. Co. v. Delamore, 114 £/. 5. 501, 5 Sup. Ct. Rep. 1009.— Fol- lowing Adams v. Boston, H. & E. R. Co.. I Holmes (U. S.) 30; Sweatt 7/. Boston, H. & E. R. Co., 5 Bankr. Reg. 234; Alabama & C. R. Co. V. Jones, 5 Bankr. Reg. 97; Winter v. Iowa, M. & N. P. R. Co., 2 Dill. (U. S.) 487. In the absence of an express provision, the question of where corporations may be sued will be determined by the judiciary act of Sept. 24, 1789, § II, which forbids that any civil suit shall be brought in either the district or circuit courts of the United States, by original process, against an in- habitant of the United States, except in the district where he is an inhabitant or in which he may be found and served ; and therefore a railroad corporation must be pro- ceeded against in the district where its road is built, maintained, and operated. In re Alabama &• C. R. Co., 9 Blatchf. {U. S.) 390. The provision of the general bankrupt act, § 37, providing that suits shall be brought in the district in which the debtor "has re- sided or carried on business," when applied to a railroad corporation, must be confined to the state creating the corporation. In re Alabama P. R. Co. v. Thomas, 2 Phila. {Pa.) z\*,- A special receiver or assignee of the prop- erty of a railroad ccipoiation, appointed in bankruptcy proceedings, involuntary on its part, is not an agent or servant of the cor- poration, and it is not liable for damages occasioned by his negligence. Metz v. Buf- falo, C. &^ P. R. Co., 58 A^. V. 61.— Fol- lowed IN Davis V. Duncan, 17 Am. & Eng. R. Cas. 295, 19 Fed. Rep. 477. 7. Sales by assignee — Rights of purchasers.— It seems that, upon a sale by an assignee in bankruptcy of the tracks, fixtures, rolling stock, and franchises of a railroad corporation, the corporation, as a legal entity, does not vest in the purchasers, and they do not become stockholders or corporators therein. Nor are the pur- chasers liable for damages resulting from negligence of those operating the road, be- tween the time of sale and the confirma- tion thereof by the court. Metz v. Buffalo, C. &^ P. R. Co., $8 N. K. 61, 7 Am. Ry. Rep. 92,9 Am. Ry. Rep. 480.— DISTINGUISHING Com. V. Central Pass. R. Co., 52 Pa. St. 506. 8. Setting aside transfers in fraud of the act. — Where an insolvent railroad company makes provision for paying one of its creditors, without provision for the other creditors, and it appears that such preferred creditor is one of the company's directors, and was present at the meetings that de- vised and carried out the plan for such payment, such arrangement will beset aside as fraudulent as to the company's assignees in bankruptcy subsequently appointed, and such creditor will be enjoined from setting up any claim to the property turned over by the company in such payment. Bradley v. Farwell, i //olmes ( U. 5.) 433.— Quoting European & N. A. R. Co. v. Poor, 59 Me. 277. — Bradley \, Converse, 4 Cliff. {17. S.) 375- 0. Discontinuance proceedings- Securing creditors. — After proceedings in bankruptcy were instituted against a railroad company, its stockholders bought up all the indebtedness of the company except a very few small claims, and asked that the bankruptcv proceedings be discon- tinued, //eld, that their petition should be # 584 BANKRUPTCY, lO, 11. A : k^ Asite:.'LL granted, upon giving security to the few minority creditors securing their claims. In re Indianapolis, C\ &*L. F. R. Co., I £iss, (i/. 5.) 287. A court of bankruptcy will not retain pos- session of the property of a railroad to assist a few small creditors to coerce payment, where the stockholders, after bankruptcy proceedings have been instituted, have bought up all of the debts, and desire that the bankruptcy proceedings be discontinued. In re Indianapolis, C. &* L. F. R. Co., 5 Biss. {U. S.) 287. A court of bankruptcy may allow the dis- continuance of proceedings against a railroad company where all the debts have been ad- justed except a very few, but it will require a deposit sufficient to recover such claims, and require them to be prosecuted in a rea- sonable time. In re Indianapolis, C. &* L, F.R. Co., I Biss. {U.S.)2Z7. 10. Bights of company on bank- ruptcy of persons dealing with them. — One who contracts with a railroad com- pany to grade and build its road is not, by virtue of such contract and his acts under it, a merchant or trader within § 39 of the bankrupt act ; and the suspension of his commercial paper is therefore not an act of bankruptcy. In re Smith, 2 Low. {U. S.) 69. The proper procedure defined where bank- rupts hold certain shares of stock in a cor- poration, where the mortgage bondholders of the corporation are proceeding to compel the corporation to make assessments on stockholders to pay accrued interest on bonds, where the charter provides that stock shall be forfeited to the company upon a failure to pay assessments, charging that fictitious certificates have been issued for stock not paid for. Gibson v. Lewis, 11 Bankr. Reg. 247. A railroad company transported and deliv- ered coal to the consignee, agreeing to waive a lien thereon for freight, so long as there was no default in payment of such freight. Certain coal was delivered, and before there was any default the consignee went into bankruptcy. Held, that, after default, and after the property in the coal became vested in the assignee in bankruptcy, the railroad company could not set up a lien on it for its freight as against such assignee. Sicardv, Buffalo, N. V. &* P. R. Co., 15 BlalcA/. (£/. 5.) 525. The bankrupts, while solvent, agreed to build an engine for a railroad company. and about the time the engine should have been completed informed the president of the company that the engine had been shipped and drew on the company for the price, which was paid. As a matter of fact, the engine at that time had not been completed or shipped, but there were two engines in the shops which were nearing completion, one of which was subsequently finished and sold to third parties, but which seemed not to be the one intended for the railroad company. Before the second engine was shipped the builders went into bankruptcy. Held, in an action by the com- pany to obtain possession of the engine from the assignees, that as the bankrupts themselves would have been estopped from claiming that the engine in the shops was not the one intended for the company, the assignees were also estopped, as tliey held no better title than the bankrupts, and that the company therefore might claim the engine. Ex parte Rockford, R. I. &* St. L. R. Co., i Low. {U. S.) 345. A shareholder became bankrupt, and afterward, and before he obtained his cer- tificate, calls were made. The assignees possessed themselves of the scrip, and a cor- respondence took place between the official assignee and the trade assignee, in the course of which the latter sent the former a statement of the bankrupt's property, com- prising in it the value of the shares, and resulting in an estimate of the probable amount forthcoming to work the fiat and pay dividends. The trade assignee subse- quently wrote to the official assignee, sug- gesting the propriety of selling the shares, which continuer a certain sum of money, after deducting whatever credits the company may be entitled to, as having been paid to the employes themselves, being payable upon a contingency and for a less sum than the face of the order, are not bills of exchange. Slebbinsv. Union Vac. R. Co., 2 Wyoin. 71. A writing reciting that the treasurer of a railroad company named would pay to A. or order $1700, and purporting to be executed by the board of directors, and signed by the company's president and secretary, is a bill or note within the meaning of Wagn. Mo. St. p. 1014, § 5, providing that where the suit is founded upon "a bond, bill, or note " for the direct payment of money or property, and the defendant has been served with process, he shall demur or answer before the second day of the term. Gihtrap v. St. Louis, M. &* O. A. L. R. Co., 50 Mo. 491, 3 Am. Ry. Rep. 245. A paper in the following words is, f.rima facie, a good promissory note, viz.: " Rome, September 10, 1846, $500. Due the Mem- phis Branch Railroad and Steamboat Com- pany of Georgia five hundred dollars, paya- ble on demand. D. R. Mitchell." Mitchell V. Rome R. Co., 17 Ga. 574. 2. "What is a negotiable bill or note. — The essentials of a negotiable promissory note are, that it must be paya- ble at all events, and not dependent on any contingency, nor payable out of a particular fund ; and that it must be fur the payment of money only, and not for the performance of any other thing or in the alternative. Arnold v. Rock River V. U. R. Co., 5 Duer {N. V.)207. The obligations of a municipal corpora- tion, acknowledging it to be indebted to a certain railroad company in a certain sum with interest, as set forth, in the coupons at- tached, Hnd agreeing to pay the sum to the order of the railroad company, and properly signed by the municipal officers, are nego- tiable instruments under the law-merchant. MIF.I.S, NOTES, ANU CIIIXIKS, ;i, 4. :)8r the same as oidiiiaiy promissory notes. Burleigh v. Rot/ifsdr, 5 /Vv/. Ref>. 667, A note given by a railroad company, which is otherwise negotiable, is not a fleeted by a provision reciting the deposit of bonds as collateral security, with power to sell them if the note is not paid on maturity, and a further provision for the payment of the balance of the note, if the bonds should not sell for enough to pay it in full. Arnold V. Roik River V. U. R. Co., 5 Duer {N. V.) 207. Where an instrument is drawn in the form of an ordinary promissory note, its negotiability is not afTected by a recital tliat it is one of a series given for cars, and pro- viding that the title thereto shall remain in the payee until all of the series are paid, and that upon a failure to pay any one of the series all should at once become due. Mer- chants' Nat. Hank v. Chicago R. Equipment Co., 25 Fell. Rep. 809. An instrument in writing, having in every respect the form of a promissory note, ex- cept that the corporate seal was impressed, whrreby a railroad corporation promised to pay to the order of A. a certain sum of money — held, to be a negotiable promissory note. Central Nat. Bank v. Charlotte, C. &* A.R. Co., s So. Car. 156. A railroad company issued instruments in writing, by which it agreed to pay at a place named and to a certain person " or order $1000, with interest semi annually, as per interest-warrants hereto attached, as the same shall become due; or upon the sur- render of this note together with the inter- est-warrants not due to the treasurer at any time until six months of its maturity," in which case it would exchange stock there- for. /Md, that the writings were negotiable promissory notes. Hodges v. Shuler, 22 A'^, Y. 1 14; affirming 24 Barb. 68. A note falling due in four months con- tained a further provision that it was one of a series of 25 given for the price of a lot of cars, the title to which was retained in the vendor, and that it should fall due upon a failure to pay principal and interest of any one of the series. Held, a negotiable prom- issory note, under the law of Illinois and the general mercantile law, unaffected by the condition that it might fall due before the lapse of four months on a failure to pay anyone of the series, or that the title to the cars was retained by the vendor. Chicago R. Equipment Co. v. Merchants' Bank, 136 U.S. 268, 10 Sup. Ct. Rep. 999. .'t. What iiiNlrniiiviitN an' not iit>- K»tial>l(>. Interest warrants payable to bearer, detached from bonds, convertible into stock at maturity, if not sooner paid, are not negotiable notes within Mass, Pub. St. § 9, and are not entitled to days of grace. Chaffee v. Middlese.v R. Co., 146 Mass. 224, 6 A'. Eng. Rep. 59, 16 A'. E. Rep. 34. A pronjise to pay money by a corporation, signed by its officers and under seal, is a specialty, and not a promissory note nego- tiable by the law-merchant; and where the payee, on account of citizenship, could not sue in the federal courts thereon, his as- signee cannot do so, u ndcr the act of congress March 3, 1875, § i, providing that no circuit court shall have cognizance of any suit founded on contract in favor of an assignee, unless a Suit might have been prosecuted in such court to recover thereon if no as- signment had been made, except in cases of promissory notes negotiable by the law-mer- chant and bills of exciiange. Coe v. Cayuga Lake R. Co., 19 Blatchf. (U. S.) 522, 8 Fed. Rep. 534. — DlSTlNCUiSHED IN Farr v. Town of Lyons, 21 Blatchf. (U. S.) 116. 4. Execution. — Prima facie a corpora- tion has the power to execute notes, and as such notes can only be executed through agents or officers, a complaint in a suit thereon need not allege that such agents or officers were appointed by a written or sealed commission. Hamilton v. Newcastle &* D. R. Co., 9 Ind. 359. Where the charter of a railroad company authorizes it to make contracts, this ex- tends to the power to contract by executing promissory notes, and where such notes do not disclose on their face the object for which they were made, it will be presumed, until the contrary be shown, that they were executed for purposes authorized by the charter. Mitchell v. Rome R. Co., 17 Ga. 574. Where a railroad company is authorized by its charter to contract for the use of other roads, it is impliedly authorized to execute bills or notes for the expense of altering the gauge of a road so contracted for, so that its cars can be run over it. Smead v. Indianapolis, P. &r^ C. R. Co., 11 Ind. 104. If a corporation is empowered by an amendment to its charter to draw bills of exchange, and afterward draws a bill, an acceptance of the amended charter will be 588 BILLS, NOTES, AND CIIKCKS, 5. 1 ~ \ presumed without showing any direi i act uf acceptance by the crjrporatioii or its authorized agents. IVetiinip/iu -^r* C. A'. Co. V. Binghatn, 5 Ala. 657. Under the original charter of tlie Indian- a|>olis and Ik-llefontaine Railroad Company that corporation liad no genera! power to execute promissory notes and bills of ex- change. Smcaii v. Indianapolis, /'. &* C. A'. Co., II /«ress power to execute bills and notes being given, — could make only such as migiit be necessary or proper in carrying tlirough that undertaking. Sineaii v. Jndi- anapolis, P. &* C. A'. Co., 11 /ml. 104.— Ah- I'l.lKl) IN Tod V. Kentucky Uniorf Land Co., 57 Fed. Rep. 47. Distinguished in Board of Coni'rs v, Lafayette, M. & li. R. Co., 50 Ind. 85. And could not execute accommodation paper, or paper to aid an undertaking not contemplated by its cliarter ; and such paper, if executed, would be void in the hands of an assignee. Sinead v. Indianapolis, P. &* C. K. Co., II Ind. 104. A railway company has no power to draw, accept, or indorse bills of exchange. Bate- man V. Mid -Wales A'. Co.. 35 L./. C. P. 205, 12 /ur. N. S. 453, L. Ji. I C. P. 499, I //. &* A'. 508, 14 H^. A'. 672. All companies registered under the Com- panies Act 1862 do not have power, by § 47 of such act, to issue negotiable instruments; such power exists only when it appears that it was intended to be conferred by the mem- orandum and articles of association. Peru- vian Ji. Co. v. Thames 6- M. At. I. Co., L. R. 2 Ch. 617, 36 L.J. CIt. 864. 16 L. T. N. S. 644, 1 5 IV. A'. 1002. Where the articles of association of a railway company give the directors power to do all things and make all contracts which in their judgment are necessary and proper for carrying into eflfect the object mentioned in the memorandum, they have power to issue negotiable instruments. Peruvian A'. Co. v. Thames &» M. M. I. Co., L. K. 2 CIt. 617, 36 L. J. Ch. 864, 16 L. T. N. 5.644, 15 ^- A". 1002. The defendant railway, desiring to raise money, drew a bill and requested the plain- tiff railway to endorse it for their accommo- dation, which the plaintiffs did, and defend- ants having discounted and failed to meet it, the plaiiitifTs paid it to the bank. Held that, assuming that the defendants had no power to draw the bill, they were neverthe- less liable to the plaintitTs as for money paid for them. Hrockville &* O. A'. Co. v. Canada C.R. CV.,41 U. C. Q. H. 431. A railway company, chartered with cer- tain enumerated powers, but without any provision conferring power on the company or its officers to make or sign promissory notes, will be deemed not to have the power. A provision in the charter that " in case of the absence or illness of the president, the vice-president shall have all the powers of the president, and shall be competent to sign all notes, bills, debentures, or other in- struments," will not confer such power in the absence of some direct provision to show that the president possessed such power when present and not ill. Topping v. Buf- falo, B. &> G. R. Co., 6 U. C. C. /». 141. 5. Acceptance of bills. — Where a written order for the payment of money, or a bill of exchange, is drawn upon a corpo- ration in the name of its vice-president and is accepted by the corporation, either orally or in writing, such acceptance binds the corporation. Louisville, E. 6- .SV. L. R. Co. V. Caldwell, 98 Ind. 245. Where a bill of exchange or written order, drawn on a corporation by its creditor in favor of a creditor of the drawer, is orally accepted by the corporation, the acceptance is not within the second clause of § 4904, Rev. St. 1881, of the statute for the pre- vention of frauds and perjuries, and is valid and binding, though not in writing, and its payment may be enforced by action against the acceptor. Louisville, E. &* St. L. R. Co. V. Caldwell, 98 Ind. 245. , The provisions of Louisiana act of 1880, ch. 134, form part of a contract between railroad companies and other parties under- taking public works and their contractors. Hence, a railroad company cannot be held liable on an order for money drawn by one of its contractors before the latter has made provision for the payment of the wages due to his laborers, as provided by the statute, or to those of his subcontractors, when the company has refused to accept such order. Meyer v. Vicksburg, S. 6- P. R. Co., 35 La, Ann. 897. A railway company with the usual powers cannot accept bills of exchange. Bateman v. Mid- Wales R. Co., L. R. i C. P. 499, 35 L. J. BILLS, NOTliS, AND CHECKS, «. fitJU C. p. 205, 13 /«r. N. S. 453. «4 H^. A*. 673. Under Companies Act of 1863, if 47, a corporation not otherwise authorized can- not accept bills of exchange. Peruvian A*. Co. V. Thames 6- M, At. I. Co., 36 L. J. Ch. 864, L. R. 2 Ch. 617, 15 W. R. 1002. Under 7 & 8 Vic. c. no, § 45, if a bill drawn upon a company regulated by that act is accepted by two directors, the accept- ance is void if not expressed to be accepted by such dit'ccluis on behalf of the company, though the clause does not contain any words of nullification. But where a bill drawn upon the company by its corporate name and sealed with its seal, having the name of the company circumscribed, was accepted by two persons styling themselves directors, appointed to accept the bill, and the acceptance was countersigned by the company's secretary — held, that such ac- ceptance was sufTiciently express. Halford V. Cameron sC, etc., R. Co., 16 Q. li. 442, 15 Jur. 335, 20 L.J. Q. B. 160 S. P., Edwards V. Cameron's C, etc., R. Co., 16 Q. li. 336 note, 6 Exch. 269. A person doing a banking business ac- cepted drafts of a railroad company under an agreement that he should hold bonds of the company as collateral, which he might sell to reimburse himself if the company failed to provide funds to pay the drafts as they fell due, and that in the meantime he might use the bonds, to be replaced by others if the drafts were paid before maturity. It was agreed that the money realized on the drafts was to be used in completing the company's road. Held, that the acceptances were not merely as an accommodation, but were for value on the part of the banker, where there was nothing to show that he used the bonds, or lost anything thereon ; and that, being so, it was immaterial whether the company used the money to complete its road or not, or whether persons to whom they were indorsed paid value therefor or not. Moore v. IVard, i Hilt, (N. Y.) 337. A bill of exchange addressed "To the President, Midland Railway," was accepted in these words: " For the Midland Railway of Canada, accepted, H. Read, Secretary; Geo. A. Cox, President." Held, that de- fendant Cox (who was admitted to be the president) was personally liable, the bill not being drawn on the company. Madden v. Cox, 44 U. C. Q. B. 543. O. C'oiislrutluii>— Where a note is given ill consideration of stock in a railroad, a subsequent illegal incrcastMif tlie stock by the company's dliectors may be set up as a good defense to an actiim on the note. Merrill v. Reaver, 46 loiva 646.— Follow- ing Merrill v. Gamble, 46 Iowa 615. Hut such defense is good only iipmi proof that the stcjck illegally issued could not he disiiiiguishefl from the legal stock. Merrill v. Reaver, 50 Imva 404. A promissory note given as a volunliiry contribution in aid of a radroiid will iwjt be held invalid for want of consideration where the pro|)osed road has been construrted and put in operation. ll'rit;/it w./nviii, 35 Mich. 347. Notes given to induce a railway company to construct its road to a given point are not void as against public policy, and the construction of the road constitutes a suffi- cient consideration therefor, /'irst Nat. Rani' V. Hendrie, 49 hnva 402. — Disiin- OUISHINO Pacific R. Co. v. Seely, 45 Mo. 212; Fuller A Dame, 18 Pick. (Mass.) 472; St. Joseph & D. C. R. Co. v. Ryan, 1 1 Kan. 602; Butternuts & O. T. Co. v. North, 1 Hill (N. Y.) S18; Ft. Kdward & Ft. M, P. R. Co. V. Payne, 15 N. Y. 583. Nor fol- lowing Holladayi'. Patterson, 5 Oieg. 177. The consideration of a note given to a railroad for the payment of money when the road shall have been completed is such completion of the road, and a plea averring that the only consideration was a contem- poraneous parol agreement of the railroad to complete the road within a given time is bad. Were such plea allowed to alter the written agreement of the parties, the parol agreement to complete the road within a given time would have been only a condi- tion, and not the consideration for the note. Cairo &* V. R. Co. v. Parker, 84 ///. 613.— Followed in Cairo & V. R. Co. v. Delap, 7 III. App. 60. A note was given to aid in the construc- tion of a railroad which was to be payable on the arrival of the first train of cars on the road at a certain place, and if the road was not completed by a certain day and the cars running, the note was to be null and void. It appeared that the cars did run to the place named on the day named over a tem- porary track laid down for the purpose, but that it was some four months afterward be- fore they were running regularly. Held, that the road, though not finished in every par- 590 BILLS, NOTES, AND CHECKS, 7,8. 9 a I V ticular, should have been so far completed that the cars might have been run with reasonable regularity, and that, not being so finished at the time specified, the note was void. Freeman v. Matlock, 67 Ind. 99. The defendants gave their notes in 1869 for balances of subscriptions made by them to aid in the building of a railway. The work on the road had ceased for want of funds, and the notes were given for the pur- pose of raising funds for the prosecution of thft work, and they were payable when the cars were running between certain named points on the road. The cars were not so running until more than fourteen years after the notes were givT.. Held, that the notes contemplated that the condition of payment should be fulfilled within a reason- able time, that the consideration had failed, and that defendants were not liable thereon. Blake v. Brown, 80 Iowa rjT, 45 N, IV. Rep. 75'- Defendants took an assignment of a gov- ernment contract for carrying ma'is, the contract being one which, under the law, might be cut down and the pay reduced, which was done after tne assignment and after a promissory note had been executed for such assignment. Held, that the reduc- tion by the government could not be set up in a suit on the note as a partial failure of consideration, and that parol evidence was inadmissibl to show a verbal agreement that if the pay were cut down defendants should only be liable for a corresponding propor- tion of the nc '^ Wells v. Curr, 11 Sawy. {U. 5.) 272. 7. Renewals.— A note given by a direc- tor of a railway company as a renewal of a similar note originally given as accommo- dation paper to raise money to pay the debts of the corporation incurred in the course of its legitimate business, and trans- ferred by the company in payment of a debt due, ^^/d/ valid, as against the maker. Lucas V. Pitney, 27 N. J. L. 221. A common carrier who, by a written agreement with the owner of notes, has un- dertaken to procure their renewal or to return them, cannot excuse himself for the non-performance of his undertaking by proving that an indorser, to whom he had delivered them for examination and com- parison prior to the renewal, was summoned as trustee of a subsequent indorser, and thereupon refused to give them up or renew them. Wareham Bank v. Burt, 5 Allen (Mass.) 113. II. VALIDITY AND INTERPRETATION. 8. Validity, generally.— The charter of a railroad corporation authorized the corporation to '* make contracts." The corporation took a promissory note. Held, that prima facte the note is to be considered evidence of such a contract as the corpora- tion was authorized to make. Mitchell v. 'iome R. Co., 17 Ga. 574. In a promissory note in the following word j, " For value received, I promise to pay to Quincy Railway Company or order one thousand and thirty dollars, in six months," the inserting of the words " the order of E. P." over "Quincy Railroad Company or order," without erasing the latter words, by the treasurer of said com- pany, unknown to the maker, in an action brought by the payee against the maker — held, in the absence of fraud, not to be an alteration affecting the validity of the note. Granite R. Co. v. Bacon, 15 Pick. {Mass.) 239. A railroad corporation, by its ciiarter, was prohibited from issuing, for circulation, any notes or bills, or from making contracts for the payment of money except under its cor- porate seal, and then only for debts con- tracted by it. The railroad corporation subsequently made a contract with the Branch Bank of the State of Alabama at Montgomery, by which the latter agreed to receive in payment of debts and to pay out in circulation, such notes as the former should issue in payment of its debts. The railroad corporation issued certain bills single, in sums of from one to twenty dollars, engraved as bank notes, in payment of debts due from it, and these were received by the bank under its contract with the railroad corpora- tion. Afterward the bank loaned the bills single thus received and certain bills of ex- change, at the request of the borrower, the bills being made for the purpose of effecting the loan. Held, that these transactions on their face were not illegal so as to prevent the bank from recovering in a suit on the bills of exchange ; that if the bills were law- fully issued by the railroad corporation they could be lawfully received by the bank and again loaned by it ; but if the contract was a mere pretext to avoid the prohibition of the charter, it would be void, and the bills single invalid in the hands of any one connected with the illegal contract. Held, BILLS, NOTES, AND CHECKS, 0-11. 591 also, that the validity or invalidity of the transaction depended upon the intention with which tlie bills single had been issued and received, and that that was a question for the jury. Branch Bank v. Crocheron, 5 Ala. 250. 9. of checks. — A check drawn to the order of an individual as treasurer of a corporation, before he is elected to that office, which check is in payment of the 10 per cent on stock necessary to be paid, under the statute, before tiling articles of association, does not atfect the validity of the payment. In re Staten Island R, T. K. Co., 38 Nun (,N. Y) 381. A check drawn by a committee of a rail- way company, not dated as drawn at any place, but headed with the name of the company, does not indicate any place so as to satisfy the terms of the statute exempting checks from duty, and is void. Ward v. Oxford K. Co., 2 DeG. AI. &• G. 750, 22 L. J. Ch. 905. Three directors of a railway company, in fraud of the company, drew a check upon the company's bankers in favor of one of them. This check, though bearing the company's stamp and countersigned by the secretary, did not purport to be drawn on behalf of the company, nor did the drawers describe themselves as directors. Held, that the company was not liable for the amount to a bona-fide holder for value. Serrell v. Derbyshire, S. &> W.J. R. Co., 9 C. B. 8n, 19 Z./. C. P. 371. 10. How construed, generally.— In interpreting obligations or subsidy notes given by citizens to a railroad as an induce- ment to the latter to build to a certain place, the railroad's charter, with all its obligations thereunder, is to be considered as entering into and forming a part of the agreen-.;nt. Miller v. Gulf, C. &* S. F. R. Co., 24 Am. Gr» Eng. R. Cas. 158,65 Te.r. 659. V^here money is borrowed to pay interest on . ailroad bonds, provisions in notes given therefor to the effect that a certain part of the gross earnings of th; company was pledged in liquidation of tiie notes, do not give such notes any priority over its bonded debt. Mcllhenny v. Bins, 80 Tex. i, 13 5. W. Rep. 655. A promissory note, payable to the treas- urer of the Chicago & C. S. R. Co., was made " in consideration of the construction of" the railway through or within half a mile of the village of D. " within three years after this dote, and the building of a passen- ger and ireighi depot" at D.; and it was made payable " in thirty days after said road and depot are constructed as aforesaid." The articles of incorporation of the railway com- pany named Chicago as one of the termini. The track was laid through D. and the depot put up, but instead of extending the road to Chicago it was connected with other routes at a point beyond D., so as to form a through line. Hi/d, that the note was made to afford aid in constructing the road, and was intended to be payable in case of the completion, as agreed, of the portion built, regardless of the failure to extend it to Chicago within three years, as stipulated. Stowell V. Stffwell, o Am. &* E'lg- R. Cas. 598, 45 A/ich. 364, 8 iV. W. Rep. 70.— Fol- lowing Swartwout v. Michigan A. L. R. Co., 24 Mich. 389.— Followed in Gardner V. Walsh, 95 Mich. 505. 1 1 . Conditions.— A condition in a note given in aid of a railroad that the road shall be completed within a designated time is of the essence of the contract. (Paterson, J., dissenting.) AtcLaughlin v. Clausen. 85 Cal, 322, 24 Pac. Rep. 636.— Overruling Front St., M. & O. R. Co. V. Butler, 50 Cal. 574. When a note is executed payable to a railroad company, but to be held by a trustee and not delivered unless the road is com- pleted to a certain place within a given time, a delivery by the trustee in violation of the contract does not make the note binding on the maker. (Paterson, J., dissenting.) McLaughlin v. Clausen, 85 Cal. 322, 24 Pac. Rep. 636. Where a note is given for stock in a rail- way company, payable on condition that a depot be established within so many rods of a town, the question whether the depot was established within that distance must be de- termined by the corporate limits of the town at the time when the note was given, and not according to a subsequent extension of the corporate limits. Davenport &* St. P. R. Co. v. Refers, 39 Iowa 298, 9 Am. Ry. Rep. 92, 20 Am. Ry. Rep. 85. Where a note is executed for stock in a railroad company, payable on condition that a depot be located at a designated place, the maker, when sued on it, cannot, in the absence of anything to show fraud or mis- take, recover, by way of countercfaim, par- tial payments voluntarily made on it, upon showing that such depot had not been es- tablished. Davenport »S- St. P. R. Co. v. 592 BILLS, NOTES, AND CHECKS, 12. I A'o^i-fs, 39 /ouia 298, 9 Am. Ry. Rep. 92, 20 Am. Ry. Rep. 85. Defendant gave his note to a railroad company, agreeinj? to pay a certain sum of money if it would build its depot on a cer- tain lot. Subsequently the company pro- cured such an amendment to its charter as to make it substantially a difTerent corpora- tion, among other things materially ciiang- ing the route of the road ; but the road was built and the depot erected on the lot designated. Held, that it being substan- tially a different corporation the maker of the note was not bound, and that the fact that the depot was of the same benefit to him as it would have been had the corpora- tion remained the same was of no impor- tance. Carlisle v. Tcrre Haute &^ R. R. Co., 6 /lid. 316.— Approved in Pacific R. Co. v. Seely, 45 Mo. 212. A promissory note was executed by the defendant, payable to the Grinnell & M. R. Co. upon the completion of its road and the running of trains thereon within a given time. The initial point of said road, as designated by the articles of incorporation of the company, was the town of G. Held, that the construction of the road from a point on another line, three and one-half miles from G., and the running of trains from G. over such other road for that dis- tance, did not constitute a compliance with the conditions of the note authorizing its collection. Cooper v. McKee, 53 Iowa 239, S N. W. Rep. 121. Where a note executed on the 5th of July, 1869, was made " demandable and payable as soon as, and not before, the legislature shall pass an act recognizing a certain class of bonds " — held, in an action on the note: (1) that, by the provisions of ch. 175, acts 1874-75, the state recognized the bonds so issued as valid ; (2) that the note, in legal effect, imported a promise to pay on that contingency; and {3) that, according to the true construction of the contract, a right of action accrued to the plaintiff upon said recognition, and that he was entitled to judg- ment for the value of the note. Leak v. Bear,io N. Car. 271. 12. Bills and notes executed by agentn and officers.— A bill drawn as of a railroad company, signed by its president with the abbreviation of his office added to his signature, is the bill of the company, where it appears that it was for the benefit of the company and was to be charged to it. Olcott v. Tioga R. Co., 27 N. V. 546 ; aj^rm- ing i^o Barb. 179.— Quoted in Hirschmann V. Iron Range «& H. B. R. Co., 97 Mich. 384. Where a draft is drawn which purports to be that of a railroad company, and is signed by the president, with the words " Prest. T. N. Co." after it, his signature will be deemed official, where there is proof that such per- son was the president of the company, and that he drew the draft in his official capacity for the benefit of the company, which re- ceived the proceeds of the draft. Thompson v. Tioga R. Co., 36 Barb. (.V. F.) 79. Where the directors of a corporation gave authority to its president and secretary to execute a note for a certain sum and in- terest, the insertion of an attorney-fee clause in the note was in excess of the authority given, and did not bind the corporation, Hardin v. Iowa R. Sf C. Co., 40 Am, &* Eng. R. Cas. 394, 78 Iowa 726, 6 L. R. A. 52, 43 N. IV. Rep. 543. Where one made a promissory note com- mencing, " I promise to pay," etc., and signed it with his own name, adding, " Agt. Bellamy Man. Co.," and at the same time executed a mortgage in the name of the company to secure the payment of it — Ae/d, that the note would bind the company, as their promissory note, if the individual had authority at the time to execute the note, or if the transaction was subsequently ratified by the company. Despatch Line of Packets v. Bellamy Mfg. Co., 1 2 A'. H. 205. A note running " We promise to pay," and signed " B. & S. R. Co.," with the words " V. K. Moore, A. Tr.," underneath, '\% prima facie the note of the company, and does not bind the estate of Moore. Turner V. Potter, 56 Iowa 251, 9 A'. W. Rep. 208. " I, G. W. C, land agent of the Ohio and Mississippi Railroad Co., agree to pay to A. six hundred dollars for waste grounds, which cover some eight town lots on the south side of the railroad ; also, two hun- dred and fifty dollars for waste grounds and wood-yard on the north side of the road, making a total of $850. Witness my hand and seal." (Signed) " G. W. C, land agent." [Seal.] Held, that this document was the personal contract of the signer. Prather v. Ross, 17 Ind. 495. A superintendent of a railroad belonging to a state was authorized by statute to con- tract in sums not exceeding $3000 in connec- tion with the management of the road, but the statute provided that " all contracts for BILLS, NOTES, AND CHECKS, 13, 14. 593 a sum above that amount must be submitted to the governor and approved in writing." Held, that notes executed by the superin- tendent above $3000, without having been approved by the governor, were void in the hands of innocent purchasers, and that this was so although other similar notes had been paid by the superintendent. Elliott Nat. Bank v. Western &* A. R. Co., 2 Lea (Tenn) 676. The fact that the president and manager of a corporation had executed negotiable notes in the corporate name, which they had taken care of without the knowledge of the board of trustees, will not render the corporation liable on other notes issued by such officers without the authority of the board of trustees, although the president and manager were two of the five trustees. Elwell\. Puget Sound Sf C. R. Co., 7 Wash. 487, 35 Pac. Rep. 376. 13. Bills aud notes payable to agents aud ofScers.— A note made pay- able to a person, as treasurer of a railroad company, is payable to him as an individual, and not to the company, the addition to the name of such person being but descrip- tive of the individual. Chadsey v. McCreery, 27 ///. 253. A note payable to the president of a rail- road company individually can be assigned so as to give the holder the rights of an as- signee, but only in his own name. In no other way can the legal title to the note pass. Peck V. Bligh, 37 ///. 317. m. TBAKSFERS AND CONSEa^ENT BiaHTB AND LIABILITIES. 14. Power to transfer or indorse.— A railroad company has power to take notes originating in a transaction, or to secure an indebtedness within the scope of its cor- porate undertaking; and as a general prop- osition a corporation has power to assign a note that it has power to take. Hardy v, Merriweather, 14 Ind. 203. A corporation may authorize its proper officer to assign a note by delivery. Blake V. Holley, 14 Ind. 383. A railroad company has necessarily the right to take a promissory note and nego- tiate it in the ordinary course of business, and an assignment by the secretary \% prima facie the act of the company. Frye v. Tucker, 24///. 180. It is within the powers of the president of a railroad company to assign notes and I D. R. n.— 3r. mortgages by indorsement which are given to aid in the construction of the road, and where so transferred before maturity the holder will take them freed from any equi- ties existing between the maker and the company. Irwin v. Bailey, 8 Biss. {U. S.) 523- Where a note and mortgage are trans- ferred as collateral to a bond of a corpora- tion, a subsequent indorsement by the com- pany's president will pass the legal title to the equitable owner. A subsequent indorsee, though he has no actual interest in the noic, may sue in his own name if it was indorsed to him for that purpose. Irwin v. Bailey, 8 Biss. {[/. S.) 523. An indorsement, on a promissory note made payable to a railroad company, of the name of the company "per M. S.Henry, Prest." in assigning the note, \s prima facie the act of the corporation by its authorized officer. Goodrich v. Reynolds, 31 ///. 490. A note was executed to aid in the con- struction of a railroad, with the understand- ing that it and others, executed for the same purpose, should be delivered to the company if they aggregated a certain amount. The notes did not aggregate the amount, and the company to which they were payable did not build the road, but the note was assigned to another company which did. Held, that the note was collectible upon complying with the conditions im- posed upon the first company. Merrills. Gamble, ^6 Iowa 615, 16 Am. Ry. Rep. 65. The president of a corporation indorsed and transferred a note In the name of the cotnpnny, and also indorsed it individually. There was evidence that he paid the amount of the note to the company himself. When sued the company claimed that the president was not authorized to indorse notes, and the evidence showed that his act of so indorsing had been approved by a vote of three of the five directors, at an impromptu meeting, without notice to the other two. Held, that if the president paid for the note he could transfer it by his individual indorsement; but that in any event a judgment for plaintiffs would not be disturbed because the trial court instructed the jury that, as a rule, the three directors could not act without notice to all, but that the jury " might take into consideration the course of dealing of a par- ticular corporation." Hitchings v. St, Louis, N. 0. &'O.C.&' T. Co., 52 N. Y. S. R. 247. 22 N. V. Supp. 719, 68 Hun 33. I 1 I 594 BILLS, NOTES, AND CHECKS, 16. I a is I The New York act of 1866, ch. 433, pro- vided that a certain city might issue bonds in aid of a railroad, and § 4 provided that they should be paid by a tax upon the tax- able property in the city, and when collected should be paid to the railroad commission- ers and by them applied to the discharge of such bonds. Held, that an indorsement to a bank by such commissioners of an order on the city treasurer, to be paid out of such fund, drawn by the county commissioners, did not give the bank title to the fund so as to authorize a mandamus to the city treas- urer to pay over the amount of the order. Feo^U v. S/upp. 18 iV. v. S. Ji. 500, 49 //un 544. 2 JV. V. Supp. 537. 15. Kigrhts of bona-fide holders.— The transfer, before maturity, of negoti- able paper as security for an antecedent debt merely, without other circumstances — if the paper be so indorsed that the holder bL'comes a party to the instrument — although the transfer is without express agreement by the creditor for indulgence, is not an im- proper use of such paper, and is as much in I lie usual course of commercial business as its transfer in payment of such debt. In ci Jicr case the bona-fide holder is unaffected by equities or defenses between prior parties ol wliich he had no notice. Brooklyn City L. E. R. Co., 55 A^. Y. S.R. 181, 72 Hun 380. — FoLLOV'NG Wilson z/. Metropolitan El. R. Co., 120 N, Y. 145, 30 N. Y. S. R. 787. The purchaser of a promissory note pur- porting to have been issued by a corpora- tion, who makes the purchase under circum- stances which impose upon him the duty of inquiry as to its validity, assumes no greater risk, by his failure to make inquiry, than the burden of proving tha the facts he could have discovered, had he made inquiry, would have protected him. Wilson v. Metropoli- tan El. R. Co., 120 A^. Y. 145, 24 N. E. Rep. 384, 30 A'. Y. S. R. 787 ; affirming 14 Daly 171,6 N. Y. 5./?. 234. Where a railroad negotiated one of its bonds and delivered with it the note of defendant as security, but without indorse- ment, but the bond contained an assignment of such note, which was made transferable with the bond and not otherwise — held, that the bond of the company was the principal, and the note the incident, and was not transferred as an independent instrument, and that such a transfer of the note should have put the party receiving it upon his guard as to any defenses the maker miglit have. Haske .'/ ' v. Brown, 6$ ///. 29. A railroad company executed notes to enable its president to purchase rolling stock, the notes being payable to the presi- deni's private secretary. The president used the notes in his private affairs, and they came to the hands of plaintiff, after matur- ity, from the one to whom the president had transferred them. Held, in an action thereon, that the first transferee was bound to inquire into the circumstances under which the notes were held, and that, having failed to do so, and it appearing that inquiry would have revealed the fact that the president was not authorized to transfer tiiem as he did. neither lie nor those holding under him after maturity could recover. Cheever v. Pittsburgh, S. &- L. E. R. Co., 55 A^. Y.S.R. 181,72 Hun 380. 17. Transfers after maturity.— A subscriber to railroad stock took a negoti- able promissory note from the company, with the understanding that it be paid out of the next assessments on his stock. A subsequent assessment was made larger than the amount of the note. The subscriber paid the difference but did not surrender the note. Held, that one taking the note from him when overdue could not recover. Paine v. Central Vt. R. Co., 25 Ami. &» Eftg. R. Cas. 37, 118 U. 5. 152, 6 Sup. Ct. Rep. 1019; affirming 14 Fed. Rep. 269. — Applied in Bound v. South Carolina R. Co., 47 Fed. Rep. 30. 18. Presentment and demand. — If the certificate of a notary who protested a note shows that notice of demand and non- payment was served on the indorser at any time during the day following demand, it is sufficient to bind him as indorser ; it need not show that it was during business hours. Bonner v. New Orleans, 2 Woods {U.S.) 135. A bill drawn by the president of a railroad company on the treasurer of the company, payable on demand, is, when dishonored, properly sued on as a bill of exchange, and to recover on it in a suit against the com- pany, presentment for payment and notice of the dishonor must be proved or an excuse for failing to do so shown. Wetumpka &* C. R. Co. V. Bingham, 5 Ala. 657. In such a case, if it be doubtful from the face of the bill whether it was drawn by one in his private character or as agent of the corporation and by its authority, parol evi- dence is admissible to show the true nature of the transaction. Wetumpka &* C. R. Co. V. Bingham, 5 Ala. 657. A complaint in an action on drafts drawn by the president of a railroad company on the treasurer is bad on demurrer if it does not allege that the drafts had been pre- sented or state the excuse for not present- ing them. Marion &* M. R. Co. v. Dillon, 7 Ind. 404. Where a debt is due from a corporation, and it is the duty of one officer or set of offi- cers to allow demands and draw for pay- ment upon another officer, who has the custody of and is charged with the duty ^ r 596 BILLS, NOTES, AND CHECKS, 19,20. I' I II a ii of disbursing the funds, the order must, as a general rule, be presented in a reasonable time for payment. Marion &* M. R. Co. v. Dillon, 7 Ind. 404.— Followed in Marion & M. R. Co. V. Spence, 8 Ind. 415 ; Marion & M. V. R. Co. V. Lomax, 8 Ind. 459. Overruled in Indiana & I. C. R. Co. v. Davis, 20 Ind. 6. Where the secretary of a corporation draws an order upon the treasurt^r for a debt actually due from th'i coic t to the payee, the latter need hcr p . , »t ♦ to the treasurer for payment with-i; w r< . ;jnable time after receiving it, or at any time befi re suing upon it, as a conditin precedent to such suit. Indiana &' I. C. R. Cc v. Da- , 20 Ind. 6. Plaintiff, a ticket agent, acting on his indi- vidual responsibility, accepted from various persons sums of money and a bank draft on deposit, with a right in the depositors to re- call their money or take tickets for an ex- cursion which was to leave on the 14th of April, the draft being received on the 9th. On the 14th the parties took their tickets, and plaintiff, on the next day, in the usual course of business, made up his ticket account and forwarded the draft. The referee held the delay reasonable. Held, that this finding was not legally erroneous. Nutting V. Burked, 48 Mich. 241, 12 A'. W. Rep. 184. An agent, residing in New York, who was charged with the collection of certain divi- dends upon railroad stock, requested a per- son in another state to collect the dividends and transmit them to him by draft. The dividends were collected and remitted by New York draft, but the agent left New York before receiving it. Held, that it was his duty to have left some one to receive the check and present it for payment, and that a failure to present the check for four days, during which time the drawee failed, dis- charged the drawer. Brady v. Little Miami R. Co., 34 Barb. (N. V.) 249. IV. ACTIONS 05 BILLS AND NOTES. 19. The right of action.— An order drawn by an incorporated company upon its own treasurer in favor of a third person is a clear acknowledgment of an indebtedness in favor of the drawee, and may be the founda- tion of an action. Such orders must be pre- sented for payment. Marion Eng. R. Cas. 525, 37 Kan. 606, 1 5 Pac. Rep. 544. Where a bill of exchange is so drawn as to leave it doubtful whether a railroad company or its president individually is the drawer, it will be presumed that it is the individual bill of the president, but it may be shown by parol evidence what the intention of the parties was. Kean v. Davis, 21 N.J. L. 683. The defendant, the general manager of a railroad company, made a contract with I. for the grading of a part of the road, and I. sublet some of the work to D., who, hav- ing performed a portion of what he had agreed to do, by a fraudulent collusion with the engineer procured the acceptance of a draft by the defendant for work done under the subcontract, notwithstanding such work had already been paid for by the contractor. Held, in an action upon the draft, that the defendant might be permitted to testify to the particulars of the contract between the contractor and the railway company. Del- aware County Bank v. Duncombe, 48 Iowa 488. A railroad company of which plaintiff was president drew drafts on the defendant in favor of the plaintiff, which defendant accepted. In an action on the drafts it ap- peared that plaintiff, as president of the railroad company, made a demand upon the defendant for settlement for bonds sold. r BILLS, NOTLS, AM) ClIliCKS, 25.— BILLS OI" LADIN(i, 1,2. <)0l and the evidence tended to show that the defendant was then owing the railroad com- pany on occount of bonds much more than the amount of the drafts, and that the drafts were given in settlement. Held, that a general verdict for plaintiff, and a special finding that the drafts were accepted in set- tlement of a disputed claim made by the railroad company, and that defendant had not paid the company the amount due for its bonds, were sufficiently supported by the evidence. Gafford v. American M. &* I. Co., 77 Iowa 736, 42 N. IV. Rep. 550. 25. DuniU{;eM.— In a suit upon a prom- issory note payable in certain railroad scrip, where the maker had failed to pay in such scrip, the market value of the scrip is the measure of damages. Parks v. Marshall, 10 Ind. 20. BILLS OF LADING. Power of agents to issue, see Agency, 07. Power to bind company by, see Station Agents. 4. See also. Carriage of Live Stock, V. Carriage of Merchandise, VIII. Express Companies, II, 9. I. OENEBAL NATUBE, INTEBPBXTA- TIOM, AND EFFECT 601 1. Definition; Execution; Issu- ance 601 2. The Bill Considered as a Re- ceipt 603 3. The Bill Considered as a Con- tract 608 4. The Bill Considered as a Mu- niment of Title 624 II. CONDITIONS, LIMITATIONS, EXCEP- TIONS, Etc 625 1 . In General 625 2. Limiting Liability for Loss by Fire , 631 3. Stipulations as to Amount of Recovery in Case of Loss. . . 635 4. Effect of Various Particular Stipulations and Clauses — 638 ni. NEGOTIABILITY AND TBAN8FEB.. 643 1. Negotiability and Mode of Transfer 643 2. Rights of Transferee 645 3. Transfer as Collateral Secur- ity 647 I. OENIBAL NATUBE, INTEBPEETATION, AND EFFECT. I . Definition ; Execution ; Issuance, 1. What deemed to be a bill of lading.'*' — A bill of lading is a memoran- dum or acknowledgment in writing, signed by the captain or master of a ship or other vessel, that he has received in good order, on board of his ship or vessel therein named, at the place therein mentioned, certain goods therein specified, which he promises to deliver in like good order (the danger of the seas excepted) at the place therein ap- pointed for the delivery of the same, to the consignee therein named, or to his assigns, he or they paying freight for the same. Union R. &• T. Co. v. Yeager, 34 Ind. 1 . The instrument in writing provided for by Texas Rev. St, art. 280, enacting that " Common carriers are required, when they receive goods for transportation, to give to the shipper, when it is demanded, a bill of lading or memorandum in writing stating the quantity, character, order, and condition of the goods," constitutes a bill of lading, and is binding upon both the shipper and the carrier. Schloss v. Atchison, T. &* S. F. R. Co., 85 Tex. 601, 22 S. IV. Rep. 1014. An account for freight, usually called a freight-bill, is not a bill of lading. Coosa River Steamboat Co. v. Barclay, 30 Ala. 120. Where Y. purchased flour to be manu- factured by a mill in St. Louis, and agreed orally with L. for the sale of such flour, terms cash on delivery an instrument styled a bill of lading, dat( d before the flour was manufactured, given to L. by a freight company, acknowledging the receipt of the flour by the company and agreeing to trans- port it to M. in Boston, cannot be regarded as a bill of lading. Union R. &* T. Co. v. Yeager, 34 Ind. i . 2. Analogry of the bill to a bill of excliangef — Alteration. — Where the maker of a note uses a printed blank and fills in the amount for which he intends to become liable, leaving a space to the left of the amount, in which, after the note has been put in circulation, words are fraudulently inserted, which increase the amount of the note, the maker'- iability is * What is a bill of lading, see note, 38 Am. Dec 407. Nature of a bill of lading, see note, 40 AM, & Eng. R. Cas. 89; 23 Id. 701. tSee/0f/, 108-128. coa miJ.S OK I.ADINC, ;»-«. I extinguished, and no recovery (an 1)" had tlicreon against him ; and tills rule applies with even greater force to bills of lading, Lehman v. Central 1^. Sf />'. Co., 4 Woods {V. S.) 560, 12 /•>. 595. A carrier is no more bound by a bill of lading issued by his agent, for goods not received by him, than a person is bound by a bill of exchange signed in his name by one who has no authority to sign it. Hunt V. Mississippi C. R. Co., 29 /.a. Ann. 446. 3. Execution of bill by carrier's nifciit.*— Tlie agent of a carrier has no authority to execute a bill of lading for goods which he has not received. Nun/ v. Mississippi C. A'. Co., 29 La. Ann. 446. As between a carrier and third persons, the true limit of a railway agent's authority to bind his company by a bill of lading is the apparent authority with which he is in- vested. Brooke v. A^env York, L. E. &* W. K. Co., 21 Am. 6- Eng. A'. Cas. 64, 108 Pa, St. 529, I Atl. Kep. 206. Express authority of an agent to make a receipt or bill of lading for goods need not be shown, he having acted as such agent in the proiHir place for receiving goods for the company, and having been in possession of the company's stamp to be used on such receipts, and the company having taken possession of the goods and caused them to be shipped, presumably with knowledge of the receipt. Hansen v. Flint &* P. M. R. Co., 37 Am. &* Eng. K. Cas. 628, 73 IVis. 346, 41 A^. IV. Kep. 529. The position of one authorized to make contracts for the transportation of freights for a carrier is one of special trust and con- fidence, and cannot be discharged by a sub- stitute. So a bill of lading which should have been signed by such person is not valid if signed by a substitute. Pendall v. Rench, 4 McLean {U. S.) 259. 4. Execution by one carrier as agent for another.— A bill of lading for goods received to be carried over more than one line recited that " the several railroad companies between Boston and Zanesville agree to carry," etc., and was signed by the defendant in his own name, " for the corpo- rations," but the names of the several rail- road companies were not given. Held, that defendant was not personally bound thereby. Lyon V. Williams, 5 Gray {Mass.) 557. * Limitation of agent's authority to issue bills of lading, see note, 21 Am k Eng. R. Cas. 68. Whi-ri- a second ( arricr is sued for the loss of goods, and the complaint sets up the making of a bill of lailing by the initial car- rier, but does not charge any partnership or arrangement between the initial ran ier and defendant, or that the latter authoii^sed the execution of the bill of lading, the defendant may deny that it is bound thereby without filing a plea of non est factum. Dillingham V. I'ischl, I Tex. Civ. App. 546, 21 .V. W. Kep. 554. Where a railroad company delivers to a shipper a bill of lading guaranteeing a cer- tain rate over connecting lines, it holds itself out to the shipper as authorized to enter into a binding contract on behalf of the connecting carriers, and if their charges exceed those guaranteed it is liable to re- fund the excess. Little Rock &^ Ft. S. R. Co. V. J>aniels, 32 Am. &* Eng. R. Cas. 479, 49 Ark. 352. 5 .S-. W. Rep. 584. A statutory penalty for refus.il to deliver freight upon the payment of the charges shown in the bill of lading applies only where the railroad sought to be ciiarged has either executed the bill of lading or author- ized another company to do so, or has rati- fied it by voluntary act; and the acceptance of freight by the railroad company from a connecting company being compulsory un- der the statutes, such acceptance cannot be deemed a ratification of the bill of lading; nor can an acceptance of the terms of the bill of lading be presumed from the fact that the defendant offered to deliver up the goods upon the payment of the freight specified therein, provided the shipper would surrender the bill of lading and exe- cute a receipt to the railroad company for the overcharge demanded by reason of freight rates over its own line, the purpose of the carrier evidently being to look for reimbursement to the connecting carrier. Gulf, C. 6"- S. F. R. Co. v. Dwyer, 55 Am. '• Ciis. i(;4, i9 5'<;. Car. 353. .Uatiis Exp. Co. V. Haynes, 42 ///. 89. Cincinnati, //, &• D. A'. Co. V. Pontius, 19 O/z/o .SV, 221. Under I 1261, Dak. Civ. Code, providing that "the obli>;ati<)ns of a common carrier, etc., may be limited by special contract,' bills of lading must be signed by the con- signor or consignee, llarlwill v. Northern I'll! . Exp. Co., 37 /////. &* /','//(,■. A'. Cas. 635, 5 yAfX-. 463, 3 L. A'. A. 342, 41 N. ir. Kip. 732. Where the consignee brings his action in the state of Illinois aj^ainst a carrier, he is bound by a bill of lading issued in New York, executed and signed by the consignor as the agent of the consignee, containing the stipulation to the effect that only the connecting lino over which the goods are to be transported shall be liable for their loss by fire while in transportation, lirown v. Louisville &* N. A'. Co.. 36 ///. Apfi. 140. 7. Leaving' blank N|m<'« for voii- Hii^iice'H nanus— The execution of a bill of lading with the space for the name of the consignee left blank is equivalent to a con- tract on the part of the carrier to deliver the goods therein mentioned to the con- signor or his assignee. Gartlen Grove Bank V. Humeston &^ S. H. Co., 23 Ant. &* Eng. R. Cas. 695, 67 Iowa 526, 25 A'. IV. Rep. 761. 8. Execnted In clnplloato.*— Where two papers are executed in duplicate as a bill of lading limiting a carrier's liability, one of the parties signing one of the papers and the other party signing the other, both papers together are to be treated as one document. Richmond &*D. R, Co. v. Shomo, 90 Ga, 496. O. Carricr'8 duty to isHuc the bill. — An undertaking by a railroad company to accept freight and deliver it at a point beyond its own line is a matter of contract between it and the shipper; but it cannot be compelled to give a bill of lading for the safe delivery of the goods beyond its own line. Lotspeichv. Central R. &^ B. Co., 18 Am. Sf Eng. R. Cas. 490, 73 Ala. 306. There is no rule of the common law, and no provision of the Massachusetts statutes, which requires a railroad company to give bills of lading. When such companies trans- port goods in connection with carriers by water it is a convenient and proper arrange- ment, but it can only be made essential by • See post, 61. contract or <;ustom. Johnson v. SiodJanf, 100 Mass. 306. 10. Penalty for ref UHal to Imhuo.*— If a bill of lading is demanded and refused the party injured has his remedy under the Tecas statute in a penalty of from $5 to $500. Missouri Pac. R. Co. v. Douglass, 16 Am. &* Eng. R, Cas, 98, 2 Tex. App. (C'/t. Cas.) 32. Where a railroad company gives a bill of lading for lumber, described as a carload when the shipper demands that the weight be stated, the company incurs the penalty provided by Texas Rev. St. 1879, art. 280, imposing a penalty on common carriers for refusing m give, on demand, a bill of lading stating tlie quantity, character, and condi- tion of the goods shi|)pcd. Texas &* P. R, Co. V. Cuteman, 4 Tex. App. (Civ, Cas.) 17, 14 5. /('. Rep. 1069. Under Texas Rev. St. art. 280, prescribing a penalty < f from $5 to $500 for refusing to execute and deliver a bill of lading, an action to recover the penalty may be maintained by the shipper, whether he is the owner of the goods or not; but if the action be under art. 279, then it can only be maintained where the plaintiff is the owner of the goods. Missouri Pac. R. Co. v. Price, 3 Tex. App. (Civ. Cas^ 430. 11. SellerN duty to procure and forward to purcliascr.— There is no rule of law, in the absence of custom, which makes its obligatory upon the seller of goods delivered to be carried on a railroad, and by the railroad forwarded by steam- boat, to take out an " internal bill of lad- ing," and forward it to the purchaser at or about the time of sending the goods. John' son V. Stoddard, 100 Mass. 306. 2. The Bill Considered as a Receipt. 12. Generally.!— A bill of lading par- takes of the nature both of a receipt and of a contract. Wayland v. Moseley, 5 Ala. 430. Mc Tyer v. Steele, 26 Ala. 487. Louisville, E. &* St. L. R. Co. V. Wilson, 40 Am. &* Eng. R. Cas. 85, 119 Ind. 352, 21 N.E.Rep. 341. Steamboat Missouri V. Webb, f) Mo. 193. Wolfe V. Myers, 3 Sandf. (N. V.) 7. Cafero V. Welsh, 8 Phila. (Pa.) 130. Van Etten v. * Penalty for refusing to give a bill of lading under ihe Texas statute, see 45 Am. & Enc R. Cas. 311 nbstr. f Bill of lading regarded in double aspect of a receipt and a contract, see note, 4 L. R. A. 244. i Li 004 BILLS OF LADING, i:J, 14. ^!! Newton, 134 A'. Y. 143, 45 A'. Y. S. /?. 768, y N.E. Rep. 334. A bill of ladin<; issued by a carrier is to be treated as a receipt and subject to explana- tion in that respect. Tibbiis v. Rock Island &» P. R. Co., 49 ///. App. 567, B/ssel v. Price, 16 ///. 408. So far as n fleets the carrier's liability there is no difference between a carrier's receipt and a bill of lading. The receipt of the carrier is really a bill of lading for goods to be transported by land. Dodge v. Meyer, 61 Cal. 405. 13. Parol evidence to vary or ex- plaiD.* — A bill of lading, so far as it is in the nature of a receipt, may be contradicted, varied, or explained by parol evidence. Way- land V. Mosely, 5 Ala. 430. Louisville, E. &* St. L. R. Co. V. IVilson, 40 Am. 6- Eng. R. Cas. 85, H9 Iftd. 352, 21 A^. E. Rep. 341. Steamboat Missouri v. Webb, 9 Mo. 193. Cafiero v. Welsh, 8 Phila. {Pa.) 130. Tib- bit ts V. Rock Islands^ P. R. Co.,\() III. App. 567. Meyer v. Peck, 28 N. Y. 590, 26 How. Pr. 601 ; affirming 33 Barb. 532. Van Etten V. Neivton, 134 N. Y. 143, 45 A'; Y. S. R. 768, 31M.E. Rep. 334. A bill of lading stating that the article carried is "at owner's risk of breakage" may be explained by proof of a verbal con- tract between the shipper and the com- pany's agent that in consideration of the payment of extra freight on delivery by the carrier, the risk shall be borne by the lat- ter ; the shipper being told by the agent, at the time of handing him the bill of lading, that it was "a receipt" for the goods shipped, and the shipper taking the paper without reading it. Union Pac. R. Co. v. Marston, 30 Neb. 241. 14. As evidence that carrier re- ceived goods, generally.— A bill of lad- ing is //■/■;/«-/«<:/. Michigan C. R. Co., 65 N. \. in. Re- viewing AND QUOTING Wichita Sav. Bank V. Atchison, T. & S. F. R. Co., 20 Kan. 519. —Not followed in National Bank v. Chicago, B. & N. R. Co., 44 Minn. 224. A bill of lacing was issued by the agent on what turned out to be a forged ware- house receipt — no goods, in fact, being de- livered. Plaintiffs paid drafts with the bills of lading attached. It appeared that the issuing of bills of lading was within the scope of the employment of the railroad agent. Held, that the company was bound by the agent's act, and was estopped from denying the receipt of the goods. Armour \ . Michigan C. R. Co., 6^ N. V. iii , 22 Am. Rep. 603 ; reversing 3 /. &* S. 563. — Fol- lowing Haille v. Smith, i B. & P. 563. Overruling Grant v. Norway, 10 C. B.66s. —Distinguished in Dean v. Driggs, 137 N. Y. 274. Explained in Lake Shore & M. S. R. Co. V. Foster, 104 Ind. 293, 54 Am. Rep. 319. Not followed in National Bank v. Chicago, B. & N. R. Co., 44 Minn. 224. Reviewed in Sioux City & P. R. Co. • Whether carrier is estopped from denying receipt of goods as against a bona-fide holder, see 45 Am. & Eng. R. Cas. 308 abstr. V. First Nat. Bank, i Am. & Eng. R. Cas. 278, 10 Neb. 556. Where a shipping-clerk, in collusion with the consignor, issues a fictitious bill of lad- ing, the goods represented by it not having been received, the railway company is liable to an innocent third person deceived there- by. Brooke v. New York, L. E. &• W. R. Co., 21 Am. &* Eng. R. Cas. 64, 108 Pa. St. 529, I Atl. Rep. 206.— Disapproved in National Bank v. Chicago, B. & N. R. Co., 44 Minn. 224. The defendants, having received a con- signment of wheat, sent to the consignees an advice note, which described the con- signment as " sacks wheat, four trucks," and did not contain any details as to weight, rates, or charges, but across the printed form was written, "account to follow." The consignees gave to B. a delivery order in re- spect to this wheat, and he obtained an advance from the plaintiffs upon it; the plaintiffs sent this delivery order to the defendants, and they accepted it. On the following day the defendants sent to B. an- other advice note on a printed form similar to the one already sent, but across the upper part was written the words, " charges only :" the invoice number was different ; the con- signment was described as 151 sacks of wheat ; the weight, the rate, and the amount of charges were filled in. B. filled up the delivery order at the bottom in favor of the plaintiffs, produced it to them, and obtained a second advance from them, as they be- lieved it to relate to a second parcel of wheat. The plaintiffs delivered this order to the defendants, who accepted it, and who allowed the plaintiffs on both occasions to take samples of the wheat. There was, in fact, only one parcel of wheat, and the two advice notes related to the same parcel. B. went into liquidation, and the plaintiffs having lost the amount of one of the ad- vances so made by them, sued the defend- ants for the amount. //>/rf, that the plaintiffs were entitled to recover the amount claimed, for the defendants had so dealt with the wheat and advice notes as to lead the plain- tiffs to believe that there were in fact two consignments of w heat, and the defendants were in consequence estopped from after- ward alleging that there was in fact but one consignment of wheat. Coventry v. Great Eastern R. Co., 11 Q. B. D. 776, ^2 L. /. Q. B. D. {App.) 694, 4 Jiy- 6- C. T. Cas. xiii. fi GOG BILLS Ol' LADING, 10, 17. 16. Currier when not estopped ilrom denying: receipt of goods.***- As a rule bills of lading issued for goods not yet delivered to tlie carrier are void. Stone v. Wabash, St. L. &* P. R. Co., 9 ///. App. 48. A carrier, liaving given a bill of lading for goods, cannot relieve himself from liability on the ground that the goods were never received by him. except by the clearest proof of that fact. Little Miami, C. &* X. R. Co. V. Dodds, I Cin. Super. Ct. 47. Under the Arkansas act approved March 15, 1887, which prohibits carriers from issu- ing bills of lading except for goods actually received into their possession, and gives a right of action against the carrier to the party aggrieved, a railway company which has issued bills of lading to the owners of cotton in the hands of a compress company is not estopped, as to third persons, from denying that the cotton was in its possession or control. Martin v. St. Louis, f. M. » S. R. Co., 55 Ark. 510, 19 S. W. Rep. 314. Carrier is not responsible for the value of goods described in a bill of lading executed by its station agent, when such property was never received by the carrier. Hunt v. Mississippi C. R. Co., 29 La Ann. 446. Williams v. Wilmington &* W. R. Co., 93 JV. Car. 42. And in such a case the principal is not estopped thereby from showing, by parol, that no goods were in fact received, although the bill las been transferred to a bona-fide holder for value. Williams v. Wilmington &* W. R. Co., 93 JV. Car. 42. A bill of lading issued by a station or shipping agent of a railroad company or other common carrier, without receiving the goods named in it for transportation, im- poses no liability upon the carrier, even to an innocent consignee or indorsee for value ; and the carrier is not estopped by the statements in the bill from showing that no goods were in fact received for transporta- tion. National Bank v. Chicago, B. 6- A^. R. Co., ^ Minn. 224,46 A^. W. Rep. 342, 560. —Not following Armour t/. Michigan C. R. Co., 65 N. Y. \\\; Bank of Batavia v. New York, L. E. & W. R. Co., 106 N. Y. 195 ; Sioux City & P. R. Co. v. First Nat. Bank, 10 Neb. 556; St. Louis & I. M. R, Co. v. Larned, 103 111. 293 ; Brooke v. New York, * Company may deny receipt of goods as against bona-fide holder of bill of lading, see note, 53 Am. Rep. 453. L. E. & W, R. Co., 108 Pa. St. 529 ; McCord V. Western Union Tel. Co., 39 Minn. 181. 17. As evidence of quantity of Hliipnieut.i'— A bill of lading is a receipt as to the quantity of the articles shipped. Wolfe V. Myers, 3 Sandf. {N. Y.) 7. A bill of lading is not conclusive as 10 the amount of goods received. Bronty v. Five Thousand Two Hundred and Fifty- Six Bundles of Elm Staves, 21 Fed. Rep. 590. Pereira v. Central Pac. R. Co., 18 Am. &• Eng. R. Cas. 565. 66 Cal. 92, 4 Pac. Rep. 988. Meyer v. Peck, 28 N. Y. 590, 26 How. Pr. 601 ; affirming 33 Barb. 532. Abbe v. Eaton, ^i N. Y. 410. A bill of lading as a receipt is open to ex- planation or contradiction as to the quan- tity of the goods specified therein. Bissel V. Price, 16 ///. 408. Wolfe v. Myers, 3 Sandf. {N. Y.) 7. Meyer v. Peck, 28 N. Y. 590, 26 How. Pr. 601 ; affirming 33 Barb. 532. Graves v. Harwood, 9 Barb. {N. Y.) ^77. Abbe V. Eaton, 51 ^V. Y. 410. A bill of lading is not conclusive as be- tween the shipper and carrier as to the quantity represented to be delivered, or as to the goods named ; and any fraud or mis- take as to either may be shown by outside evidence. Meyer v. Peck, 28 N. Y. 590, 26 How. Pr. 601 ; affirming 33 Barb. 532. A carrier may explain a bill of lading against an assign e thereof for value when- ever the bill, taken iis a whole, shows that the carrier does not vouch for the correct- ness of the written statement of quantity received. Tibbits v. Rock Island «&* P. R. Co.. 49 ///. App. 567. 7'he material part of a bill of lading on the subject of the freight rate is that which fixes the rate per one himdred pounds. Weigh- ing the freight is purely a mechanical proc- ess, and may be done at the point of ship- ment or at the pcint of delivery. Where the weight of the merchandise is uniformly the same, the carrier c»- the consignee may ask to have the weight verified up to the moment of delivery, and it is the weight disclosed by the scales, and not the weight marked on the bill of lading, that controls. Baird v. St. Louis, L M. &> S. R. Co., 42 Am. &* Eng. R. Cas. 281, 41 Fed. Rep. 592. Notwithstanding the recital of a bill of * Bill of lading not conclusive as to quantity, see note, 38 Am. Dec 413. Effect of recitals in bill of lading as to quantity of goods received, set note, 30 Am. & Eno, R. Cas. loi. BILLS OF LADING, 18-21. 607 lading that one hundred and sixty-seven cattle, *' more or less," had been received by the carrier, the number of catilc actually shipped may be proved by parol. Chapin V. Chicago, M. 6* St. P. R. Co., 42 Am. 6- Eng. R. Cas. 542, 79 Iowa 582, 44 N. W. Rep. 820. A railway company is not estopped from denying the correctness of the weight of iron bundles mentioned in a bill of lading, and upon proving delivery of all bundles received is discharged from liability. Horsman v. Grand Trunk R. Co., 30 U. C. Q. B. 130. 18. As evidence of quality of ship- ment. — A bill of lading, acknowledging the receipt by a carrier of " the following packages, contents unknown, * ♦ * marked and numbered as per margin, to be tran- sported " to the place of destination, is not a warranty, on the part of the carrier, that the goods are of the quality described in the margin. St. Louis, I. M. &^ S. R. Co. v. Knight, 30 Am. 6- Eng. R. Cas. 88, 122 U. S. 79, 7 Sup. Ct. Rep. 1 132. The statements in a bill of lading refer- ring to the quality of the goods represented by the bill may be explained by parol testi- mony. Meyer v. Peck, 28 A^. Y. 590, 26 How. Pr. 601 ; affirming 33 Barb. 532. 19. As evidence of value of ship- ment.* — Where the bill of lading described the freight as one horse and one colt, and the term " value $100 " was so placed that a question arose as to whether it applied to the horse alone or to the horse and colt, it was held that the pl.iintifl was not entitled to a charge that " the statement of value affected only the horse and had no refer- ence to the colt," but that it was for the jury to say, upon an inspection of the bill of lading, which was meant. Coupland v. Housatonic R. Co., 6f Conn. 531, 23 All. Rep. 870. 20. As evidence of condition of shipment, penerally.t— A railroad com- pany is not concluded by a receipt stating that goods were received in good order. Illinois C. R. Co. v. Cowles. 32 ///. 116. That part of a bill of lading which relates to the condition of the goods is to be treated * Effect of recitals in a bill of lading as to the value of the goods received by the carrier, see note, 30 Am. & Eng. R. Cas. ioi ; see also post, 81-87. t Bill of lading not conclusive as to condition of goods, see note, 38 Am. Dec 415. as a mere receipt, and not as a written con- tract, and may be explained, varied, or even contradicted. Meyer v. Peck, 28 A^. Y. 590, 26 How. Pr. boi ; affirming 33 Barb. 532. Bissel v. Price, 16 ///. 408. Hunt v. Mississippi C. R. Co., 29 La. Ann. 446. When a receipt is given by a railroad company for goods before they are actually examined, it is prima-facie evidence only of what it contains. The receiptor is not concluded from shpwing the actual condi- tion of the property. Porter v. Chicago &- N. W. R. Co., 20 Iowa 73. — Distinguish- ing Skinner v. Chicago & R. I. R. Co., 12 Iowa 192. A bill of lading for through goods is only prima-facie evidence that the last carrier received them in good condition ; and it is competent for him to show that they were damaged while in the hands of a previous warehouseman or carrier. Great IVestern R. Co. V. McDonald, 18 ///. 172. —FOLLOW- ING Bissel V. Price, 16 III. 408. 21. Recital that goods were re- ceived *26. li iiiii Where a carrier receives goods for ship- ment, and gives a bill of lading in which the goods arc described to be in apparent good order, the bill of lading \% prima-/ acie evidence that the goods were in good con- dition. Illinois C. R. Co. v. Cobb, 72 ///. 148. A stipulation in a bill of lading to the effect that the carrier received the goods therein mentioned " in good order " is prima-facie evidence only, and may be con- tradicted by parol evidence. Seller v. Steam- ship Pacific, I Oreg. 409. 22. received " in good order and well conditioned." — A receipt, " in good order," by a carrier of goods which are boxed, is not conclusive upon the carrier, but he may show by parol evidence that the goods were in fact damaged when shipped. To make such a receipt conclu- sive upon the carrier would subject him to the necessity of examining and ascertaining the condition of all freight shipped, which would be inconvenient and impracticable. Gowdy V. Lyon, 9 B. Mon. {Ky.) 112. — FOL- LOWING Warden v. Greer, 6 Watts (Pa.) 424.— Followed in Keith v. Amende, i Bush (Ky.) 455- In bills of lading the expression that the goods were shipped " in good order and well conditioned" should be considered as re- ferring to the exterior and apparent con- dition of the boxes, and to their internal condition only so far as it might be inferred from appearances. Keith v. Amende, 1 Bush (Ky.) 45$.— Following Gowdy v. Lyon, 9 B. Mon. (Ky.) 112. The acknowledgment in a bill of lading that the goods wer^ shipped "in good order and well conditioned" is conclusive against the master and owner as to the external order and condition of the goods at the time of the shipment, unless there is evidence of fraud or mistake. Benjamin v. Sinclair, i Bailey {So. Car.) 174. 23. Burden on receiptor to show condition other than that stated in the bill. — A bill of lading is prima- facie evidence that the goods were in the condition at the time of their receipt as described therein, and the burden of proof is on the carrier to show that they were dif- ferent, or that he was deceived or defrauded when he signed it. Bissel v. Price, 16 ///. 408.— Followed in Grean Western R. Co. V. McDonald, 18 111. IJ2.— Illinois C. B. C«. V. Cffwles, 32 ///. 1 16. 3. The Bill Considered as a Contract. 24. Generally.* — The contract to carry goods on the part of a carrier may be by parol or in writing, as a bill of lading. Mobile &* M. R. Co. w.Jurey, 16 Am, &* Eng. R. Cas. 132, III U. S. 584, 4 Sup. Ct. Rep. 566. The terms of the contract of shipment between the shipper and carrier are repre- sented by the bill of lading, and a shipper , is bound by the terms of the bill given to him at the time of the shipment. Bishop v. Empire Transp. Co., 48 How. Pr. (N. Y.) 119. Bills of lading are mere contracts between the carrier and shipper, not representations to the public that they may advance their money thereon. (By Burton, A.J. ; contra, Pattenson, A.J.) Erbv. Great Western R. Co., 3 Ont. App. 446 ; affirming 42 U. C. Q. ^.90. On its face a bill of lading is but a memo- randum, and not in form a complete con- ract between the parties thereto. Baltimore &* P. S. Co. v. Brown, 54 Pa. St. 77. 25. Necessity for assent by shipper. — A shipper of goods is not bound by a clause in a carrier's bill of lading given on receipt of goods for transportation, limitinij the common-law liability of the carrier, un- less the shipper assents to the same. Erie &* JV. Transp. Co. v. Dater, 91 ///. 195. Merchants' Despatch Transp. Co. v. Theilbar, 86 ///. 71. A company cannot limit its liability by in- serting a provision in a through bill of lad- ing providing that in case of loss or damage the remedy should be against the company only in whose hands the goods might be at the time of such loss or injury, and sending ittto the shipper after the goods were shipped under a condition making it liable as at common law, and where the bill of lading was neither agreed to nor signed by the shipper. Central R. Co. v. Dw^ht Mfg. Co., 75 Ga. 609. 26. What constitutes absent by the shipper.f— (I) Generally.— Iht. fact that a shipper sent a freight contract limiting the carrier's liability under a misapprehension of its contents— it having been executed in auplicate, and one copy retained by him — will not in the absence of fraud or undue advantage by the carrier vitiate the limi- *SeeiU in favor of the shipper, in every case of doubt. Alabama G. S. R. Co. V. Thomas, 89 Ala. 294, 7 So. Rep. 762. If the contract of a railroad company, as expressed in its bill of lading for shipping goods, leaves it in doubt whether the com- pany was exempted from liability for loss happening by fire, the doubt must be re- solved against the company. Little Rock, M. R. &• T. R. Co. v. Taldot, 18 Am. &* Eng. R. Cas. 598, 39 Ark. 523. 36. Law of place.— Where goods were' received by a railroad company in another state, where it is lawful for carriers to limit their liability, to be shipped to Iowa, where such limitation is not permitted, in case of a loss without the fault of the carrier before the goods reach Iowa, the contract will be held valid. Talbott v. Merchants' Despatch Transp. Co., 41 Iowa 247. — Reviewing McDaniels v. Chicago & N. W. R. Co., 24 Iowa 412.— Followed in Hazel v. Chicago, M. & St. P. R. Co., 82 Iowa 477. Re- viewed in Hartmann v. Louisville & N. R. Co.. 39 Mo. App. 88.— Western &^ A. R. Co. V. Exposition Cotton Mills, 35 Am. &* Eng. • See f>/'sf, 88-107. R. Cas. 602, 81 Ga. 522, 7 S. E. Rep. 916, a L, R. A. 102. Provisions in a bill of lading which are authorized by the law of a state in which the company is incorporated will, where the bill of lading is accepted by the shipper, constitute a special contract and be valid. Farnham v. Camden &» A. R. Co., 55 Pa, St. 53. An action in Pennsylvania brought on a bill of lading issued in New York is gov- erned, as to matters of contract, by the law of the latter state, and, as to the remedy, by the law of the former. Brooke v. New York, L. E. &> W. R. Co., 21 Am. &- Eng.R. Cas. 64, 108 Pa. St. 529. I Atl. Rep. 206. A clause in a through bill of lading, ex- empting the carrier " from damages or loss by fire while in depot," made in the state of Tennessee by a connecting road, being ille- gal in Texas, will not be passed upon in the absence of allegation and proof that such limitation was legal where executed. In- ternational &* G. N. R. Co. V. Moody, 71 Tex.' 614, 9 S. W. Rep. 465. It will not be presumed that the parties to a bill of lading intended to have their contract governed by different laws, accord- ing as a loss might occur in one or in another state, unless circumstances were proved showing such an intention. Ryan V. Missouri. K. &*. T. R. Co., 23 Am. &* Eng. R. Cas. 703, 65 Tex. 13. When there are no circumstances attend- ing the transaction, except the mere execu- tion, delivery, and acceptance of a bill of lading, the safest rule to arrive at the inten- tion of the parties is that which upholds, rather than that which defeats, the contract ; and the laws of the state under which the contract is valid siiould be applied. Ryan V. Missouri, K. &* T. R. Co., 23 Am. &» Eng. R. Cas. 703, 65 Tex. 1 3. If a bill of lading is given in one state for the transportation of goods from a point in that state to a place in another state, and the lex loci contractus is that a provision contained in a bill of lading and limiting the common-law liability of the carrier is illegal unless the shipper knew of and assented to such provision, and that the mere acceptance of the bill of lading is not, of itself, evidence of such assent, the suffi- ciency of the assent is a matter appertaining to the validity and effect of the contract, and is to be adjudged in a foreign tribunal in accordance with the law of the place of ■if. 614 BILLS OF LADING, .•17-40. f I I contract, and not the luw of the forum. Hartmann v. Loiihville <&«• A'. R. Co., 39 Mo. App. 88. Where a party claims to recover on a bill of lading issued in another state, the burden is on him to sliow its validity. Interna- tional &» G. N. K. Co. V. Moody, 71 Tex. 614. 9 S. W. Rep. 465. !17. CoiiKtriictiuii of the bill a qiieNtioii of law.— Where goods are re- ceived by a carrier for transportation, and a bill of lading is given to the shipper showing the contract, it is error for the court, by an instruction, to leave it to the jury to say what the contract was. The court should tell the jury what, by the bill of lading, the contract was. Wabash, St. L. &» P. R. Co. V. Jaggerman, 23 Am. &* Eng. R, Cas. 680, 1:5 ///. 407, 4 iV. E. Rep. 641. Compare Co/es V. Louisville, E. &* St. L. R. Co., 41 III. App. 607. Halffv. Alljin, 60 Tex. 278. 38. CoiiHtriictiou as to point of destination, route, etc.— A bill of lad- ing for goods to a railroad depot, the ship- ping point for a neighboring town for which they were destined, cannot determine that depot as the destination contemplated be- tween the buyer and seller. Were it other- wise, the legal ciTect of the bill of lading would be for the court and not for the jury. Halffv. Allyn, 60 Tex. 278. Goods were received in New York marked to a consignee in Memphis, Tenn., but the bill of lading given recited that they were to be transported to Philadelphia and there delivered to the Pennsylvania Railroad, "all rail to Cincinnati, Ohio." The goods were duly received in Cincinnati, and for- warded by water to Memphis, but were lost on the voyage. Held, that prima facie the ultimate destination of the goods was Mem- phis and not Cincinnati ; and that, in the ab- sence of evidence to the contrary, the agents were justified in forwarding them to Mem- phis, and were not liable to the owners for their loss. Brown v. Mott, 22 Ohio St. 149. Apples were shipped at Staunton, under a bill of lading, by which the company ac- knowledged their receipt, "to be forwarded to East St. Louis station, on its line," and under the heading" Marks and Destination," in the bill of. lading, was written, " G. A. B., St. Louis, Mo." Held, that the words in the bill of lading, "to be forwarded to East St. Louis station, on its line," were not sufficient to overcome the implied undertaking, arising from the " marks and destination," to carry to St. Louis, Mo. Wabash, St. L. Eng, K. Cas. 586, 17 S. E. Rep. 838. Where a bill of lading contains a stipula- tion as to the amount to be charged for transportation, it is conclusive upon the shipper; and where the amount to be charged is not stated in the bill of lading, the law implies that the carrier shall have a reasonable compensation, such as is com- monly or customarily charged others for like services under like conditions, and evi- dence of a previous oral contract fixing the charge is not admissible. Louisville, E. &* S/. L. Ji. Co. V. Wilson, 40 Am. &> Eng. K. Cas. 85. 119 Ind. 352, 21 A'. E. Hep. 341. If a bill of lading does not stipulate the price to be paid for the carriage of the goods, the law imports into it the agreement that the compensation shall be reasonable, and such as is customarily charged others for like service under like conditions, and parol testimony is not admissible to prove a verbal agreement as to the rate. Louisville, E. &* Si. L. A\ Co. V. Wilson, 40 Am. 6- Eng. K. Cas. 85, 119 Ind. 352, 21 N. E. Rep. 341. A carrier and his customer do not stand on the same plane, or footing of equality, and in many cases the latter has no alter- native as to the kind of bill he will receive, and cannot be estopped by its contents. Lallande v. His Creditors, 45 Am. &• Eng. R. Cas. 301, 42 La. Ann. 705, 7 So. Rep. 895. Parol evidence is inadmissible to show that a company was not a common carrier for the whole distance stated in the bill of lading, as the distance of carriage men- tioned therein. Chouteaux v. Leech,\% Pa. St. 224. (2) Illustrations.— \ihttt a shipper ac- cepts a bill of lading which designates no route by which the consignment is to be forwarded after reaching the terminus of the contracting company's line, it is not competent to prove a prior parol agreement to forward by a particular line. Snow v. Indiana, B.&* W. R. Co., 28 Am. 6- Ettg. R. Cas. 77, 109 Ind. 422, 9 A^. E. Rep. 702.— Distinguishing Guillaume v. General Transp. Co., 100 N. Y. 491.— Reviewed in McAbsher v. Richmond & D, R.Co., 108 N. Car. 344. The shipper, in such case, authorizes the first carrier to select any usual or reasonably direct and safe route by which to forward the consignment beyond its line, and this provision, being imported into the contract by law, is as unassailable by parol as the ex- press terms of the contract. Stioiv v. Indi- ana, B. 6- W. R. Co., 28 Am. 6- Eng. R. Cas. 77, 109 Ind. 422. 9 A'. E. Rep. 702. Where a bill of lading is given to a shipper showing that the goods are to be transported to the end of the carrier's line, the shipper will not be permitted to testify to an oral contract with the company's agent at the place of shipment by which the goods were to be transported to a point beyond the terminus of the carrier's line. Hewett v. Chicago, B. 6- Q. R. Co., 18 Am. 6- Eng. R. Cas. 568, 63 Iffwa 611, 19 A^. W. R:p. 790. Where a shipper of property takes from the carrier a bill of lading, receipt, or other voucher expressing the terms and con- ditions upon which the property is to be transported, the writing, in the absence of proof of fraud or mistake, must be taken as the evidence, and the sole evidence, of the final agreement of the parties, and by it their duties and liabilities must be regulated. Resort cannot be had to prior parol negotia- tions to vary its terms. Long v. New York C. R. Co., so A^. r. 76, 3 Am. Ry. Rep. 350.— Distinguishing Bostwick v. Baltimore & O. R. Co., 45 N. Y. 712.— Followed in Hinckley v. New York C. & H. R. R. Co., 56 N. Y. 429; Dana v. New York C. & H. R. R. Co., 50 How. Pr. (N. Y.) 428. A bill of lading stated an agreement to transport lumber from P. to C. for specified rates per thousand feet. Held, that parol evidence was inadmissible to prove that these rates were to be demanded if the sale of the lumber should produce so much ; but, if not, that the charge for freight should not exceed the sum realized from the sale. Gardner v. Chace, 2 R. I. 112. A bill of lading imported on its face an absolute undertaking. On the back thereof were printed rules and regulations that modified such undertaking, but it did not appear that the shippers had knowled(>e thereof. Held, that evidence modifying such unde: taking should come from the party apparently bound thereby. Neivellv. Smith, 49 Vt. 255, 17 Am. Rv. Rep. 100. Where a freight bill is signed by certain fiit; BILLS OF LADINC;, 41.42. |: \ , '(' 'j^ [•crsons with the word "agents" after their iiameH, and contains nothing un its face to show that it is the contract of a railroad company, parol evidence is inadmissible to show it to be such. Dixon v. Columbus &* I. R. Co., 4 Diss. {U. S.) 137. A railroad company received wheat, and gave a bill of lading reciting that it was to be carried to the scacoast, and from there to a foreign port " upon \.\,c vessel called the * Argosy,' or other vessel of equal class for marine insurance." Held, that the bill of lading constituted the contract, and that the railroad company had a ri^ht to ship by any vessel of equal class as tn insurance with the " Argosy," and that it was not competent to prove by parol that the shipment was to be in the " Argosy" only. HeUiwell\. Grand Trunk R. Co., 10 Biss. (I/. 5.) 170, 7 Fed. Rep. 68. Parol testimony is inadmissible in the fol- lowing instances : To vary the terms of that portion of a bill of lading which constitutes the contract part as distinguished from the bill as a receipt. Van Etten v. Newton, 134 N. V. 143, 45 JV. V. S. R. 768, 31 JV. E. Rep. 334. Ger mania Fire Ins. Co. v. Memphis Sf C. R. Co., 72 A^. Y. 90, 28 Am. Rep. 115; affirming 7 Hun 233. Louisville &* N. R. Co. v. Fulgham, 91 Ala. 555, 8 So. Rep. 803, Grace v. Adams, 100 Mass. 505. Cox V. Peterson, 30 Ala. 608. To contradict what a bill of lading clearly expresses. Baltimore &* P. Steamboat Co. v. Brown, 54 Pa. St. 77. To contradict or vary a bill of lading so far as it relates to the carrier's liability for loss. Arnold v. Jones, 26 Tex. 335. To contradict or vary the terms of a bill of lading when one accepts it as embracing the terms of the contract. Cincinnati, U. &* Ft. IV. R. Co. V. Pearce, 28 Ind. 502. To show that a shipper did not read the provisions in a bill of lading delivered to him. Grace v. Adams, 100 Mass. 505. To add to or vary, in behalf of the shipper, the terms of a special contract contained in a bill of lading accepted and signed by him before the goods were shipped, it not ap- pearing that his siij;ning was the result of fraud or mistake. Richmond &* D. R. Co. v. Shomo, 90 Ca. 496.— Distinguishing Pur- cell V. Southern Exp. Co., 34 Ga. 315 ; Bost- wick V. Baltimore & O. R. Co., 45 N. Y. 712 ; Hamilton v. Western N. C. R. Co., 96 N. Car. 398. 41. Purol eviiloiici' to vnry in enN<>H ol'iyniid or nilNtako. — In cases of fraud or mistake in bills of lading, parol evidence is admissible to contradict or vary the terms of the instrument, just as in other written contracts. Long v. New York C. A'. Co., 50 A^. Y. 76, 3 Am. Ry. R,p. 350. Jia/ti- more &* P. Steamboat Co. v. lUmun, 54 Pa. St. 77. Louisville. E. &* St. L. R. Co. v. IVilson, 40 Am. &• Eiig. R. Cas. 85, 1 19 ///(/. 352. 21 N. E. Rep. 341. Grace v. Adams, loo Mass. 505. Richmond &* D. R. Co. v. Shomo, 90 Ga. 496. That a clause in the bill of lading, limiting the responsibility of the carrier, was inserted or left in the printed bill of \ading by mis- take may be proved by circumstantial as well as positive evidence. The questi'>n as to mistake was for the jury; the burden of proof as to it was on plainiids who alleged it. Chouteaux v. Leech, 18 Pa. St. 224. Where the Columbus & Indianapolis Railway is sued for the loss of goods, a bill of lading which contains nothing to indicate that the defendant road constituted a part of the route, except the initials and words " I. & C. Central R. R.," is not sufficient to show prima facie that the contract was made by the defendant company, in the ab- sence of any allegation of a misnomer, or an ofTer to prove that the initials used meant the defendant company. Dixon v. Colum- bus Eng. R. Cas. 52, 30 Kan, 298, 2 Pac. Rep. 496.— Followed in St. Louis & S. F. R. Co. v. Clark, 48 Kan. 321. By the common law carriers are exempt from " inevitable accidents," and where no such exemption is provided for in a bill of lading, the law implies it in favor ot the car- rier ; but such implication may be repelled by parol evidence, showing a contract on the part of the carriers guaranteeing abso- lutely the safe delivery of the goods. Mor- rison v. Davis, 20 Pa. St. 171. Where goods are received marked " in cabin state-room," and receipted foras such, and an extra price is paid for being carried in the cabin, the owner may recover from the vessel for damages to the goods by rea- son of not being so carried, though the bill of lading was in the usual form, and the gocds were not placed in the cabin. The Star of Hope, 2 Sawy. {(/. S.) 15. Where a bill of lading to carry cotton ex- cepted the company's liability for loss by fire— held, that the shippers might show that the true contract was by parol, and contained no such exception. Mobile 6- M. R. Co. V. Jurey, 16 Am. 6- Eng. R. Cas. 132, III (/. S. 584, 4 Sup. Ct. Rep. 566. In a suit against a railroad to recover for 618 BILLS OF LADING, 44. m w wi goods destroyed by fire, the bill of lading in evidence showed that the company was not liable for such loss, but the uncontradicted evidence showed an independent oral con- tract containing no exemption from lia- bility. The rate paid was also higher than when the carrier was relieved from loss by tire. The court charged the jury that the paper read as a bill of lading contained no restriction upon the liability of the carrier. Helii, that the instruction must be under- stood to mean that the bill of lading, as modified by the oral contract, and con- sidered in connection with surrounding cir- cumstances, contained no such restriction. Mobile &' M. R. Co. v. Jurey, id Am. &* Eng. R. Cas. 1 32, i u U. S. 584, 4 Sup. Ct. .'{ep. 566. The respondents sued the appellants for breach of contract to carry petroleum in cov- ered cars from L. to H., alleging that they neg- ligently carried the same upon open platform cars, whereby the barrels containing the oil were exposed to the sun and weather, and were destroyed. At the trial a verbal contract between plaintiffs and defendants" agent at L. was proved, by which the defend- ants agreed to carry the oil in covered cars with despatch. The oil was forwarded in open cars and delayed in different places, and in consequence a large quantity was lost. On the shipment of the oil a receipt note had been given which said nothing about covered cars, and which stated that the goods were subject to the conditions en- dorsed thereon, one of which was " that the defendants would not be liable for leakage or delays, and that the oil was carried at the owner's risk." //^A/, per Sir W.J. Ritchie, C. J., and FouRNiER and Henry, J. J., that the loss resulted not from any risks by the contract imposed on the owners, but from the wrongful act of the carrier in placing the oil on open cars, which act was inconsistent with the contract they had entered into, and in contravention as well of the under- taking as of their duty as carriers. Pe' Strong, Fournier, Henry and Gwynne, J. J.: The evidence was admissible to prove a verbal contract to carry in covered cars, which contract the agent at L. was author- ized to enter into, and the non-compliance with the provisions of that contract pre- vented the appellants from setting up the condition that " oil was carried at owner's risk," as exempting them from liability. Grand Trunk R. Co. v. Fitzgerald, 5 Can. Sup. Ct. 204.— Applying Malpas v. Lon- don & S. W. R. Co., L. R. I. C. P. 336. Quoting Robinson v. Great Western R. Co., 35 L. J. C. P. 123; Lewis v. Great Western R. Co., 3 Q. B. D. 195, 44. Merger of previous negotia- tions, etc., in Hubsequent bill of lad- ing.* — (i) Merger effe'ted. — All previous parol agreements or negotiations touching the shipment of goods are merged in a written bill of lading, made out by the carrier, delivered to the shipper, and ac- cepted by him. Bostwick v. Baltimore &* O. R. Co., SS Barb. {N. Y.) 137 ; reversed, it seems, in 45 A'. Y. 712. A bill of lading, so far as it is a contract, merges all prior and contemporaneous agreements, and, in the absence of fraud, concealment, or mistake, and when free from ambiguity, its terms or legal import cannot be explained or added to by parol. Louisville, E. &* St. L. R. Co. v. Wilson, 40 Am. &• Eng. R. Cas. 85, 119 Ind. 352, 21 A^. E. Rep. 341. Where a shipper's receipt, delivered to the consignor at the time of shipment, states that upon application a bill of lading will be issued at a place designated, and that the shipment will be made subject to conditions therein, the bill of lading and not the ship- ping receiot will embody the contract of the parties, t J the consignee will be bound by the conditions of the bill. Wilde v. Mer- chants' Despatch Trat:sp. Co., 47 Io7va 272. — Distinguishing Bostwick v. Baltimore & O. R. Co., 45 N. Y. 712. (2) No merger.— Ih^ rule that prior ne- gotations are merged in a subsequent written contract does not apply where goods have been shipped under a verbal contract, and afterward a bill of lading is given containing limitations of the carrier's liability, which is not examined by the shipper. In such case the shipper may show the actual agreement. Bostwick V. Baltimore 6- O. R. Co., 45 A'; Y. 712 ; reversing 55 Barb. 137.— Following Corey v. New York C. R. Co., April 1871 (not reported).— Applied in Magnin v. Dinsmore, 56 N. Y. 168. Approved in Pruitt V. Hannibal & St. J. R. Co., 62 Mo. 527. Distinguished in Richmond & D. R. Co. V. Shomo, 90 Ga. 496 ; Wilde v. Merchants' Despatch Transp. Co., 47 Iowa 272; Long V. New York C. R. Co., 50 • MerRerof previous parol aRreement in sub- sequent bill of lading, see note, 30 Am. & E'.o. R. Cas. 7. BILLS OF LADING, 45-47. 619 V. Lon- P. 336. stem R. V. Great N. Y. 76; Germania Fin; Ins. Co. v. Mem- phis & C. R. Co., 72 N. Y. yo. Explained IN Hill V. Syracuse, B. & N. Y. R. Co., 73 N. Y. 351. Followed in Condict v. Grand Trunk R. Co., 54 N. Y. 500 ; Lamb v. Cam- den & A. R. Co., 4 Daly (N. Y.) 483. Where goods are shipped under a verbal agreement, sucli agreement is not merged in a subsequent bill of lading given, partly written and partly printed, which contains conditions limiting the carrier's liability, with a statement that by accepting it tiie shipper agrees to its terms ; and mere accept- ance of such bill of lading does not prevent the shipper from proving the actual verbal agreement under which the goods were shipped. Schiff v. New York C. &• //. /i. a: Co., 52 How. Pr. (N. V.) 91. A verbal agreement to send peaches to Olean without changing the cars is not merged in a shipping bill subsequently ex- ecuted, when there is no reference to such agreement in the bill, /^t'/ey v. Neiv York, L. E. &^ IV. R. Co., 34 Him {N. Y.) 97. A failure to object to limitations in a bill of lading delivered in New York two days after the goods had been shipped will not, in a suit in Illinois, be held to be a waiver of a prior oral contract containing different terms. Merchants' Despatch Transp. Co. v. Furthmann, 47 ///. App. 561. A bill of lading issued by a common carrier only determines the conditions upon which the freight is to be transported after it passes under its control ; it does not abrogate or annul any contract made by the common carrier before it was issued, in re- gard to receiving and forwarding the freight. Hamilton v. IVestern N. C. fi. Co., 30 Am. &» Eng. R. Cas. 1, 96 iV. Car. 398, 3 S. E. Rep. 164.- -Distinguished in Richmond & D. R. Co. V. Shomo, 90 Ga. 496. The agent of a railroad company agreed to have cars ready to forward freight on a cer- tain day. The cars were not ready on that day. HeM, that the contract was not abrogated by the terms of a bill of lading issued when the freight was shipped on a subsequent day. Hamilton v. IVestern N. C. R. Co., 30 Am. (S- Eng. R. Cas. i,g6 N. Car. 398, 3 S. E. Rep. 164. — Followed in McAbsher v. Richmond & D. R. Co., 108 N. Car. 344. The plaintifTs made an oral contract with a carrier by which the latter a}» D. R. Co., 108 A'. Car. 344, 1 2 S. E.Rep. 892.— Following Hamilton?/. West- ern N. C. R. Co., 96 N. Car. 398. Reviewing Hopkins v. St. Louis & S. F. R. Co., 16 Am. & Eng. R. Cas. 126, 29 Kan. 544; Snow v, Indiana, B. & W. ' Co., 28 Am. & Eng. R. Cas. 77, 109 Ind. < i. 45. Effect of notices printed on the bill. — In America it is generally held that a mere notice printed on the bill of lading will not bind the owner, though brought to his knowledge. Rj^an v. Mis- souri, K. &* T. R. Co., 23 AHLGfEitg. R. Cas. 703, f 5 Tex. 13. The liability of the carrier cannot be lim- ited by a mere notice in the bill of lading; but if a special contract be incorporated in the bill of lading and signed by both parties, it is sufficient. Georgia R. Co. v. Spears, 66 Ga. 485.— Quoted in Mitchell v. Georgia R. Co., 68 Ga. 644. 4U. Effect of memoranda in tlie margin of bill.— A memorandum written on the margin of a bill of lading requiring claims for loss or damage to be presented to the delivering line within thirty-six hours after the arrival of freight is as valid as if it had been in the body of the bill of lading, and if found to be reasonable will be held binding; but such provisions are not as a matter of law held reasonable, and when set up as a defense the company must allege and prove facts which show them to be reasonable. Brown v. Adams, 3 Tex. App. {Civ. Cas.) 462. 47. Effect of bill upon the manner and validity of the ilellvcry by the carrier.*— (i) Generally. — A bill of lading is a contract to deliver the goods therein specified at a certain point of destination to u certain person as consignee. Wolfes, Myers, 3 Sandf. (N. Y.) 7. As between the owner and shipper of the goods and the common carrier, the bill of lading fixes and determines the duty of the latter as to the person to whom it is (at the time) the pleasure of the former that the goods shall be delivered ; but there is noth- * Delivery of goods without requiring pres- entation of bill of lading, see note, 33 Au. ft Eng. R. Cas. 508. 620 BILLS OF LADING, 47. s It a ing final or irrevocable in its nature. Hal- seyv. Warden, 25 Kan. 128. A railroad company has no right to make a delivery of freight otherwise than in strict accordance with the bill of lading. Penn- sylvania R. Co. V. Stern, 35 Am. &* Eng. R. Cas. 551, iig Pa. St. 24, 12 At/. Rep. 756. Where the space for consignee's name in a bill of lading is left blank the contract is to deliver to consignor or his assigns, and a verbal agreement between consignor and railroad company to ship goods to a third party will not authorize or excuse the de- livery by the company to such person, as against an assignee of the bill of lading without notice. Garden Grove Bank v. Humeston &* S. R. Co., 23 Am. &■» Eng. R. Cas. 695, 67 Iowa 526, 25 A^. W. Rep. 761. The fact that a bill of lading contains a direction to notify a person named, ^n the arrival of the goods, is no indication that he has any interest therein ; nor is it authority to deliver the goods to the person named, nor enough to put a person dealing with the bill of lading on inquiry. Illinois C. R. Co. V. Southern Bank, 41 ///. App. 287. Where a railroad company, following the usual custom, has issued a bill of lading for goods upon delivery to it of a warehouse receipt for them, it is a good defense to an action against it for a failure to deliver part of the goods that it delivered the whole of the goods which it received from the ware- houseman ; and the fact that the action is brought by an assignee of the bill of lading does not ailect the company's right to plead such defense. Hazards. Illinois C. R. Co., 42 Am. &* Eng. R. Cas. 455. 67 Miss. 32. 7 So. Rep. 280. (2) Illustrations.— Cotton was shipped over a railroad to a seaport town, whence it was to go to a foreign country by vessel, the through bill of lading reciting that it was to be delivered in port " to the ship T. or to some other steamship company or line, or vessels chartered thereby." Hfld, that, in the absence of actual notice that the vessel T. was under a charter-party, the second railroad company was not bound to accept from that vessel a bill of lading with qualifications, as thp bill of lading given by the first railroad company was not sufficient notice, either to the second railroad com- pany or to the owner, that the vessel was under charter. Held, also, that the second railroad company could maintain a libel against the vessel T. to recover the cotton, upon the master's refusal to sign a bill of lading, without adding the additional qualification, " other conditions as per charter-party." TAe Torgorm, 48 Fed. Rep. 584. F. & Co., carriers, delivered to a railway at their station goods for conveyance ad- dressed to the consignees. With such goods a consignment note was handed to the railway containing, in addition to the names and addresses of the consignee, the words " To the care of F. & Co." The com- pany refused to recognize the latter words, and delivered the goods to the consignees by their own agents or other carriers. Held, that the words " To the care of F. & Co." imported that the goods on their arrival at the terminal stations were to be given to F. & Co. or their agents for delivery to the consignees: that as between the railway and F. & Co. the latter were the consign- ors; and that the company accepted the goods upon* the terms stated in the con- signment note and were precluded from delivering them to the consignees, and should have delivered them to F. & Co. or their agents. Fishbourne v. Great Southern &* W. R. Co., 2 Ry. *• C. T. Cas. 224. Cotton was shipped, and the consignors took a bill of lading, making the cotton de- liverable to their order, and forwarded it with a draft to a bank for collection, with a notice to notify certain parties who ap- peared to be the consignees. Held, that it was the duty of the carrier to deliver the cotton only upon the order of the consign- ors, and that there was nothing in the notice to require the bank to notify the carrier not to deliver to the consignees, nor to inquire whether the cotton would be so delivered. Mational Bank v. Atlanta &* C. A. L. R. Co., 2$ So. Car. 216. A bill of lading recited that the goods were "to be delivered without delay at a certain port to a certain person named or his assigns, he or they paying freight for said goods at the rate of $274.40, charges payable when collected by boat; charges to be col- lected," the value of the goods being stated. Held, that if the carrier delivered the goods without collecting such charges he is liable therefor to the shipper. Meyer v. Lemcke, 31 Ind. 208. See also Canfieldv. Northern R. Co., 18 Barb. {N. V.) 586, ^ BILLS OF LADING, 48. G21 48. Delivery by carrier without demanding presentation of tlie bill.* — (i) Generally. — Where a carrier delivers goods without the production of the bill of lading he takes upon himself the burden of showing that the delivery was made to the proper person. National Bank v. Atlanta 6- C. A. L. R. Co., 2$ So. Car. 216. Where a bill of lading is indorsed in blank and negotiated for value as security for a draft drawn on a third person by the con- signor, to whose order the goods are con- signed, the carrier cannot deliver the goods to such third person without production of the bill of lading or authority from the holder thereof. Boatmen's Sav. Bank v. Western &* A. R. Co., 81 Ga. 221,7 S. E. Rep. 125. The effect of New York laws 1058, ch. 326, as amended in 1859, ch. 353, prohibit- ing the delivery by a common carrier of property covered by a bill of lading, except upon surrender and cancellation of the bill, and authorizing the transfer of the property by indorsement of the bill, is to incorporate into every instrument the statutory condi- tion and make it an element of the contract, unless the case is within the exception con- tained in sec. 5 of the act, by having the words "not negotiable" written or stamped on the face of the bills. Colgate v. Pennsyl- vania Co., 102 N. Y. 120, 6 A^. E. Rep. 114, I N. V. S. R. i66; affirming j' Nun 297. Where goods are shipped to the order of the consignor, the railroad company is not justified in delivering them to a third per- son without the bill of lading, and merely upon the production of an invoice and a letter from the consignor giving him notice of a draft, which is to accompany the bill of lading, drawn upon him by the consignor and which he is required to protect. Penn- sylvania R. Co. V. Stern, 35 Am. 6- Eng. R. Cas. sst, 119 Pa. St. 24. 12 All. Rep. 756. (2) ///wj/ra/w/iJ.— Plaintiff shipped hay to his broker and telegraphed him : " Do the best you can. Whatever you do will be satisfactory." HeM, that the telegram was a waiver of the necessity of a bill of lading in the hands of the broker as a condition precedent to his right to obtain possession of the hay, and the carriers were not liable as for a wrongful conversion by delivering * See pott, 04. Delivery of goods without requiring presen- tation of bill of lading, see note, 32 Am. & Eng. R. Cas. 508. the hay to the broker. Mitchell v. Chesa- peake d» O. R. Co., 17 ///. App. 231. A bill of lading contuiniiig a provision that the goods are to be delivered on " pres- entation of duplicate thereof," establishes the fact that the consignor is the owner of the goods, and if the carrier delivers the goods to the consignee without the presen- tation of any bill of lading the carrier be- comes liable to the consignor. Jeffersonville, M. &* I. R. Co. v. Irvin, 46 Ind. 1 80. If such condition had not been in the bill of lading the title to the goods would have vested in the consignee on iheir delivery to the carrier, but being there, the property remained in the consignor until the goods were paid for by the consignee. Jefferson- ville, M. &• I. R. Co. V. Irvin, 46 Ind. 180. In an action against a railroad company for damages consequent upon the loss of merchandise consigned to plaintiff, occa- sioned by its improper delivery by defendant to a third person before the production by such person of the bill of lading, and before the acceptance by him of a draft attached thereto, the fact that defendant had several times previously delivered freight, so con- signed, to such third party before the ac- ceptance of like drafts, such drafts, however, having always been paid, will not justify a finding that there was a course of dealing between the parties which would take the case out of the rule requiring that the de- livery must be in accordance with the bill of lading and justify defendant in delivering the goods before payment of the draft. Pennsylvania R. Co. v. Stern, 35 Am. &• Eng. R. Cas. 551, 119 Pa. St. 24, 12 Atl. Rep. 756. Plaintiff's assignees delivered to the B. S. P. Co., at Norfolk, Va., 100 bags of peanuts, marked "V," for shipment to Denver, re- ceiving a bill of lading, in which, after specifying the property, the weight, and freight, was the following: " Marked Y, or- der notify Zucca Bros." In the course of transportation the peanuts were delivered to defendant. It received no bill of lading or copy thereof from the preceding carrier, and it was not notified that any had been issued. It received a " transfer sheet " which contained this entry, "Consignee ' Y,' Hup Zucca Bros," The same entry was made in the way-bill made up by defendant's agenis at the forwarding station, but under a col- umn therein headed "consignee and desti nation," the destination but no consignee was given. Defendant teceived no other 622 BILLS OF LADLNG, 40-63. fh -.1 in ' i h u I it notification as to the ownership or disposi- tion of the goods. It delivered them at Denver to Zucca Bros, without the produc- tion or surrender of the bill of lading, That firm had no title to or interest in the goods and had refused to pay a draft drawn upon them by the shippers, forwarded for collec- tion, which was attached to the bill of lading ; these papers had, in consequence, been re- turned to liie shippers. NM, that defend- ant, upon failure to deliver to plaintiff on demand, became liable for a conversion of the goods ; that the use of the word " notify " in the bill of lading showed that Zucca Bros, were not intended as the consignees, and as none were named no delivery could be safely made without production ot the bill. Ftir- man v. Union lac. R. Co., 32 Am.&' Eng R. Cits. 500, 106 A'. V. 579, 13 N. E. Rep. 587, II A'^, V. 5. R. 192; reversing 35 Hun 669, mem. 49. Delivery where goods ure iu excess of amount specified in bill.— Grain was shipped and a bill of lading given containing a provision that the full quantity mentioned should be delivered, and that if a deficiency occurred it should be paid for by the carrier, but that any excess should be paid for to the carrier by the consignee. Held, that in case of an excess the carrier was not entitled to the excess, but that the consignee was bound to pay freight on it. Ford V. Head, 34 Hun (JV. V.) 146. Two railroad companies shipped on plain- tiff's vessel a quantity of wheat consigned to a bank in care of defendants. The bills of lading contained the following provision : " All deficiency in cargo to be paid for by the carrier, and deducted from the freight and any excess in the cargo to be paid for to the carrier by the consignee." The quantity described in the bills of lading was ) 5,338 bushels, while the actual quantity shipped was 15,838 bushels, and the dis- crepancy was shown to have occurred by the omission by mistake to include 500 bushels. Plaintiff claimed that he was en- titled to the 500 bushels for his own use. He/d, that the provision in the bill of lading did not give it to him, and that no custom or usage was proved giving the provision such meaning, and that defendants, who had accounted for such excess to the shipper, were therefore held not liable to plaintiff. Murton v. Kingston &• M. Forwarding Co. , 32 I/. C. C. P. 366. 50. Shipper's right to substitute consignee. — The owner of goods shipped may change his purpose before the delivery of the goods or the bill of lading to the party named as consignee in the bill, and order the delivery to be made to some other person. Halsey v. Warden, 25 Kan. 128. A debtor shipped goods by a carrier to his creditor to sell and apply the proceeds on his debt, and forwarded a bill of lading. Held, that he could afterward change the shipment to another person without making the carrier liable to the first consignee. Chaff e V. Mississippi &• T. R. Co., 9 Am. &* Eng. R. Cas. 426, 59 Miss. 182. 51. Two bills issued for one ship- ment.'*' — When the bill of lading has been executed and issued in duplicate, one signed by the shipper and the other by the car- rier, the two papers must be treated as one document and construed together in de- termining the correct interpretation to be put upon the bill. Richmond &* D. R. Co. v. Shomo, 90 Ga. 496. Where two bills of lading are issued and there is a variance between them, the one given to the shipper will control. On- tario Bank v. Hanlon, 23 Hun {N. Y.) 283. 52. How long the bill remains in force.t — A bill of lading issued by a steam- ship company in England, and headed " Montreal Ocean Steamship Company, Allan Line, and Grand Trunk Railway of Canada," stated that the goods were to be delivered at Portland " unto the Grand Trunk R. W. Co., and by them to be for- warded thence by railway to the station nearest to Hamilton," etc. Held, not hav- ing been superseded byany otherdocument, to be in force up to the time of its indorse- ment by the consignee over to a third party. Clementson v. Grand Trunk R. Co. , 42 U. C. Q. li. 263. Compare also Forbes v. Bos- ton (S- L. R. Co., 9 /////. &* Eng. R. Cas. 76, 80, 133 Mass. 154. Merchants' D. iS- T. Co. V. Merriam, 31 Am. &* Eng. R. Cas. 78, in Ind. 5, II A'; E. Rep, 954. Rawson v. Holland, 59 A'. Y. 611; affirming 5 Daly 155, 47 Houi. Pr. 292. 5.3. Through bills of lading.t- Where a bill of lading specifies a rate for freight to one point and is for the delivery of the goods at a point less distant, it will be taken to be a through contract, which will bind the carrier to deliver at the more • See ante, O. fSee/w/, 110. iSee ante, 4, 30; post, C5-0S. BILLS OF LADING, 53. 688 distant point. Woodward v. Illinois C. R. Co., I Biss. {U. S.) 403. A bill of lading held to be a through bill where it contains among other provisions one fur a continuous shipment between points that require it to pass over different lines, and that the conditions of the con- tract should apply to and govern the trans- portation over any and all roads which form a part of the route, and where the last carrier receives the whole of the freight charges. Missouri Pac, R. Co. v. Ryan, 2 Tex App. (Civ. Cas.) 378. A bill of lading acknowledging the re- ceipt of goods to be carried to the consignee at a designated point, with the provision that " this receipt can be exchanged for a through bill of lading," renders the carrier liable for the transportation of the goods to the place of destination, though that be be- yond its own line. Myrick v. Michigan C. R. Co., ^ Biss. {{/. S.) 44. The question whether a common carrier agrees to transport beyond its own line is to be determined from the bill of lading, as it regulates and determines the duties and obligations of both sliipper and carrier. Piedmont Mfg . Co. v. Columbia &* G. R. Co. , 16 Am. &* Eng. R. Cas. 194, 19 So. Car. 353. The recitals and stipulations of a bill of lading were as follows: "Shipped in good order and condition by Jewett, Hall & Co. (on account and risk of whom it may concern) on board the good steam- boat called the Virginia and Mobile Trade Company, whereof is master for the present voyage, now lying at the port of St. Louis, Mo., and bound for Mont- gomery, Ala., the following packages or articles marked and numbered as below, which are to be delivered, without delay, in like good order and condition at the afore- said port (the damages of the river, fire, and unavoidable accident only excepted), unto Rufus L. Logan or his or their assigns, he or they paying freight for said goods at the r.ite of 30 cents per 100 lbs. to New Orleans, $1.98 per bbl. flour (through), and $6.35 per cask, $3. 15 per tierce bacon, and 93 cents per box crackers, thence to Montgomery. In witness whereof the owner, master, or clerk of said steamboat subscribes to four bills of lading, all of this tenor and date, one of which being accomplished, the others stand void. Dated at St. Louis, Mo., this 2d day of October, 1866." (Here follows a description and wrsght of the goods.) " Privilege of re-shipping at New Orleans and Mobile." (Signed) "Jewett, Hall & Co., Agt's M. T. Co." "It is understood and agreed that the above goods are to be sent through at above rates, if any boats are going through to Wetumpka." (Signed) " Jewett, Hall & Co., Agt's, Mo- bile Trade Co." Held, that it imposed an obligation on the party making it to send the goods therein named " through to Wetumpka," either from Mobile or Mont- gomery, " if any boats are going through to Wetumpka," when the goods are delivered either at Mobile or Montgomery. Logan v. Mobile Trade Co., 46 Ala. 514. According to Central R. Co. v. Dwight Manuf'g Co., 75 Ga. 609, and Falvey v. Georgia Railroad Co., 76 Ga. 597, the valid contracts embraced in the bills of lading involved in the present case were through contracts for shipment from Griihn, Ga., to New York and Philadelphia, and the com- pany with whom they were made was re- sponsible for performance both to and be- yond the terminus of its own road. The first of these authorities cuts off the com- pany from availing itself of any limitations or restrictions of its general liability ex- pressed in the bills of lading, the shipper not having expressly assented thereto, and there being no evidence to prove his assent, save the mere acceptance by him of the bills of hiding. Central R. &• B. Co. v. Hassel- kus, {Ga.) 55 Am. &• Eng. R. Cas. 586, 17 5. £. Rep. 838. A bill of lading for transportation of goods from Hillsboro, Texas, to Galveston, in the same state, and for the delivery at the latter place to the consignee or a con- necting carrier, is not a contract for carriage beyond that place, notwithstanding it guar- antees a through rate to a town in another state, named as the ultimate point of desti- nation. Bennitt v. Missouri Pac. R. Co., 46 J/o. ..4/1/. 656.— Reviewing Coatesz/. United States Exp. Co., 45 Mo. 238, 241 ; Snider v. Adams Exp. Co., 63 Mo. 376.— Quoting Wheeler t>. St. Louis & S. E. R. Co., 3 Mo. App. 359- A bill of lading is a through contract of carriage where, containing no limitation of liability to the initial carrier's line only, it in effect provides for the shipment of goods by the " C. Line of Propellers," to be deliv- ered " a» addressed on the margin, or to his or their consignees, upon paying freight and charges, etc.," and on the margin are these 624 BILLS OF LADING. S4-50. m r'V ' t if (5 words, '"G. F. W., Providence, . . . Care A. T. Co., Buffalo. . . . Rate to Provi- dence per loo lbs., 45 cents, ... to be landed at Jndia Wharf," and isduly sig.?ed by the agent of the initial line. IVa/t/ v. Ho//, 26 ^Vts. 703.— Following Peet v. Chicago* N. W. R. Co., 19 Wis. 118.— Dis- tinguished IN Tolman v. Abbot, 78 Wis. 192. Evidence is sufficient to show a through contract where the bill of lading stipulates that in case of loss or injury to the mer- chandise named therein, for which any car- rier under the same might be liable, such carrier might have the benefit of any insur- ance taken out by or for tiie benefit of the owner. lVah/\. Ho//, 26 IVt's. 703. 54. Guaranteed bills of lading.*— Where a carrier in a bill of lading guaran- tees a certain rate over connecting lines, it is liable to refund the excess if its charges exceed those guaranteed. Li///e Rock &* F/. S. A\ Co. v. Danie/s, 49 Ar/c. 352, 32 Am. &• Eng. R. Cas. 479, 5 5. 11^. Rep. 584. Compare also Fry v. Louisv:7/e, N. A. &• C. R. Co., 22 Am. ///^ establishes prima facie the liability of the carrier sued ; and to avoid liability the burden is upon it to prove such facts as would constitute a valid defense. Gulf, C. &> S. F. R. Co. v. Golding. 3 Tex. App. {Civ. Cas.) 60. (2) Illustrations.— Pl stipulation in a bill of lading given by one of an associated through line of common carriers to trans- port goods beyond its own line, to the effect that if damage to the goods be sustained by the shipper that company alone in whose custody the goods were at the time of the loss shall be answerable, is a reasonable one and consistent with public policy ; and the shipper who accepts it is bound b^ its terms and conditions, whether he reads it or not. Phifer v. Carolina C. R. Co., 89 N. Car. 311, 45 Am. Rep. 687.— Quoting York Mfg. Co. V. Illinois C. R. R. Co., 3 Wall. (U. S.) 113; Michigan C. R. .Co. v. Mineral Springs Mfg. Co., 16 Wall. (U. S.) 328. Reviewing Myrick v. Michigan C. R. Co., 107 U. S. 102. — Distinguished in Knott z/. Raleigh & G. R. Co., 98 N. Car. 73.— Followed in Weinberg v. Albemarle & R. R. Co., 18 Am. & Eng. R. Cas. 597, 91 N. Car. 31. Where goods were received by what is called a dispatch company, to be transported to a place which necessarily requires them to pass over several lines, and a bill of lading is given which does not disclose the names of the several companies forming the dispatch company, but does contain a pro- vision that " the company shall alone be held answerable therefor in whose actual custody the same may be at the time " of loss or damage, the owner need not sue the road on which the loss actually occurs, but may sue the dispatch company. Plock v. Fitchburg R. Co., 21 Am. &* Eng. R. Cas. i, 139 Mass. 308, I A'. E. Rep. 348. BILLS OF LADING, «7-«U. 029 U.S. ntlua, 'runic uston (Civ. 07. Liiiiitiiiff liability to Iohs oi>- ciirrlutf oil initial carrier's line.— A provision in a bill of lading that the carrier shall not be held liable for damage to goods after they have left its own line has no re- lation to that part of the contract which fixes and guarantees the rate of carriage. Little Rock &* Ft. S. A\ Co. v. Danieh, 32 Am. Sf Eng. R. Las. 479, 49 Ark. 352, 5 S, W. Rep. 584. At common law carriers are not required to transport goods beyond their own lines. The obligation to so carry is a matter of contract, but the receipt of goods marked to a point beyond the initial carrier's line is prima • facie evidence of such a contract; but a provision in the bill of lading limiting the carrier's lia- bility to its own line, which is known to the shipper, is sufficient to rebut siich//-////|1- I I' ^ «30 BILLS Ol' Iw\DIN(i, 70 72. provision in a bill of lading uxcmpting the carriers from liability (or loss resulting from the misconduct of its subordinate employes is valid. McMillan v. Michigan S. &* A'. /. A". Co., 1 6 Mhh, 79. 70. Kxccptloii ol' loHN caiiHt'd by ••iK't of Oo«L"— A loss, occasioned by accidental tire, not arising from negligence or carelessness, is not within the exemption of a li;ss caused by " act of God." Gilmore V. Carman, 9 J//jv. 279. 71. NeuoHMity ol'vliurgiiig a lower riitc— A provision in a bill of lading limit- ing the carrier's liability, which is not made in consideration of a lower rate of freight, is not valid as against a loss or injury result- ing from the carrier's negligence. Adams Express Co. v. //arris, 40 /Im &* Eng. A\ Ciis. 151. 120 /nd. 73, 21 A^. A", /if p. 340. To make valid a provision in a bill of lading exempting the shipowners from liability for loss through "any act or omis- sion, negligence, default, or error in judg- ment " of employes, it is not necessary that there be a stipulation for a lower rate of freight. Rubens v Ludgate //ill Steamship Co., 20 N. Y. Supp.ifix. Where no reduction in freight is made upon goods shipped under bills of lading containing a fire clause, there is no con- sideration for the stipulation, and it is in- valid. Louisville &* N, K. Co. v. Gilbert, 42 Am. &* Eng. A'. Cas. 372, 88 Tenn. 430, 12 S. W. A'ep. 1018, 7 L. /{. A. 162. 72. Showing Iomm or liijiiry to be within the llnilttitlonH or exceptions. — As it is not competent for carriers to limit their liability for their own negli- gence, where goods are shipped under a bill of lading attempting to limit the car- rier's liability, the burden of proof, in case of injury or loss, is upon the carrier to show that the injury or loss wiis without its fault or negligence. Southern Exp. Co. v. Seide, 42 Am. &• Eng. K. Cas. 398, 67 Miss. 609, 7 So. Rep. 547. See also Little Rock, M. R. 6- T. R. Co. v. Talbot, 18 Am. &- Eng. R. Cas. 598, 39 Ark. 523. Where goods are shipped under a bill of lading containing exceptions as to the car- rier's liability, in order to relieve it in case of loss or damage, it must clearly appear that the excepted causes were the proxi- mate and sole cause of the loss or injury ; and if it appears that the carrier's negligence contributed to the injury or loss as an ac- tive ciiusc, the carrier is liable. Ready. St. Louis. A'. C. *• JV. R. Co.. 60 Mo. 199.-- QuoTKD IN Davis v. Wabash, St. L. & P. R. Co., 26 Am. & Eng. R. Cas. 315. 89 Mo. 340. Rrconcilkd in Drew v. Red Line Transit Co., 3 Mo. App. 495. Where the bill of lading exempts the car- rier from liability for breakage of the goods carried, it is the duty of the carrier, in an action for damages for such breakage, to bring himself in the first instance within iho exemption; the burden of proof is then upon pliiiiitifl to prove the carrier's negli- gence. IVitting V. .St. Louis, 6- S. F. R. Co., 45 Am. &* Eng. R. Cas. 369, 101 Afo. 631, 14 S. IV. Rep. 743.— Approving Read v. St. Louis, K. C. & N. R. Co., 60 Mo. 199. Foi,- LOWiN(> Lamb v. Camden & A. R. & F. Co., 46 N. Y. 271 ; Whitworth v. Erie R. Co.. 87 N. Y. 413 ; Farnham v. Camden & A. R.Co., 55 Pa. St. 53; Patterson v. Clyde, 67 Pa. St. 500 ; Little Rock, M. R. & T. R. Co. v. Talbot, 39 Ark. 526; Memphis & C. R. Co. V. Reeves, 10 Wall. (U. S.) 176. Nor fol- lowing Brown v. Adams Exp. Co., 15 W. Va. 812 ; Berry i>. Cooper, 28 Ga. 543 ; Chi- cago, St. L. & N. O. R. Co. V. Moss, 45 Am. Rep. 428, 60 Miss. 1003 ; Graham v. Davis, 4 Ohio St. 362 ; Union Express Co. v. Gra- ham, 26 Ohio St. 595. Overruling Lever- ing V. Union Tp. & I. Co., 42 Mo. 89; Ketchum v. American Merchant's U. Exp. Co., 52 Mo. 390. Reviewed in Hance v. Pacific Exp. Co., 48 Mo. App. 179. In an action against a carrier upon a bill of lading containing an exception of the dangers of the river navigation and inevit- able accidents, after the non-delivery of the goods is shown, the burden of proof is upon the carrier to show not only a loss within the terms of the exception, but also that proper care and skill were exercised to prevent it. Graham v. Davis, 4 Ohio St. 362. — Not followed in Witting v. St. Louis & S. F. R. Co., ioi Mo. 638, Goods were shipped by a carrier under a bill of lading stipulating that they were carried at the owner's risk of breakage, chafing, etc., and under a standing release of all damage " from any cause not the re- sult of collision of trains, or of cars being thrown from the track while in transit." There was evidence tending to show that the goods were carefully packed when shipped, that plaintiff's goods so packed uniformly reached the place of delivery in good condition, and that the goods in con- troversy were injured when at their destina- ii: ; i BILLS OF LADING. 73-74. m tion. //eM, that it was for the jury to say whether the injury was not the result of de- fendant's negligence; that, to entitle the plaintiff to recover, under the terms of the release, he was not restricted to proof of such gross negligence as would result in collision or derailment; and that, in the absence of such proof, the question whether the carrier was guilty of negligence in the transportation of the goods was a question of fact for the jury. Phanix Pot Works v. Pittsburgh &» L. E.R, Co., 139 Pa. St. 284, 20 Atl. Rep. 1058. 2. Limiting Liability for Loss by Fire. 73. Validity niid cfTect, generally. — A provision in a bill of lading exempting the carrier from liability for loss by fire is valid if the loss does not occur through the carrier's negligence. Little Rock, M. R. &» T. R. Co. V. Talbot, 18 Am. p1aced the common-law relation between the parties and controlled their rights. Shelton v. Mer- chants' Despatch Transp. Co., 59 A^. Y. 258. 48 How. Pr. 257 ; reversing 4/. &* S. 527. A carrier is released fron liability for losr of goods by fire while p.waiting tranship ment in the company's depot under a bill of lading issued in -.mother state, stipulating that no carrier shall be liable for loss by fire from any cause, or that no carrier shall be liable fov loss by fire while goods are awaiting transhipment to any point. Brown BILLS OF LADING, 7«-78. 633 V. LohisTilU' &^ A'. K. Co.. 36 '///. App. 140. 70. Cotton burned In warehouse of n coiupreNM company. — A carrier is excused where his bill of lading contained a valid tire-clause exempting him from liability for loss " by tire or other casualty in or at any cotton press or during transporta- tion to or from press." Denting v. Mer- chants' C. P. &» S. Co., 90 Tenn. 306, 17 S. W. Rep. 89. A valid stipulation in a bill of lading ex- empting the carrier from liability for loss of cotton by tire "while at depots, stations, yards, landings, warehouses, or in transit," exempts him from liability for loss thereof by fire occurring without fault of himself or agent, while the cotton is in the warehouse for compression by his agent — the ware- houseman . Lancaster Mills v. Merchants' Cotton-Press Co.,.^j Am.&* Eng.K. Caj. 423, 89 Tenn. i, 14 i". ]V. Rep. 317. Carriers are not excused, however, from liability for loss of cotton by lire, caused without their negligence, after its delivery to the Carrie.' and while it remained in the warehouse of a compress company for com- pression for shipment, although their respective bills of lading contained valid fire- clauses, providing for exemption from liabil- ity for loss by fire, in genera! terms, or "while in depots or places of tranship- ment," or "while in transit or at stations." The warehouse of a compress company is not included in any of said clause. Deniing V. Merchants C. P. i'f S. Co., 90 Tenn. 306, 17 5. IV. Rep. 89. 77. Goods burned by a lawlesH mob. — A provision in a bill of lading ex- empting the carrier from liability for "loss or damage of any article or property what- ever by fire or other casualty while in transit or while in depots or places of tranship- ment," applies to a case where a lawless mob takes the goods while in transit and burns them, where the negligence of the carrier does not contribute to such loss. Hall v. Pennsylvania R, Co., 3 Am. iS- Eng^. R. Cas. 274, I Fed. Rep. 226. Goods were shipped under a provision in a bill of lading that the carrier should not be liable for " loss or damage by tire, unless it could be shown that such loss or damage occurred through negligence or default of the agents of the company." Upon the ar- rival of the goods at their place of destina- tion, ihe car in which they were stored \, 80. n i relates to the condition of the goods, and docs not allecl ilic liability ot llic carrier for a failure to deliver witliiii the time specified in another provision of the bill of lading. Hiiruiony v. lUn^ham, i Dtter (A'. J'.) 209. A bill of lading issued by a railroad com- pany contained a clause exempting the company from liability " for damage or loss to any article from or by fire or explosion of any kind." Hclii. not to a[)ply to a loas by fire started \i\ sparks from the company's locomotive, '.hrougli a failure to provide the {(jcomotive with spark-arresters, which were known and in actii:i> use; but the company was not bound to resort to the use of all the contrivances known t A'. Co., 43 A'. )■. 123. - Kkvikwino Ford v. Lon- don & S. VV. K. Co., 2 F. iS[ F. 730; Hege- man v. Western K. Co., 13 N. Y. 9. — AiM'LiKD IN Magnin t-. Dinsmore, 56 N. Y. 168; My- nard v. Syracuse, li. & N. V. K.Co., 71 N. Y. 180. DisTlNGUisiiKD IN Jacksonville, T. & K. \V. R. Co. 7'. Peninsular L.. T. & M. Co., 27 Fla. I. yuoTKi) IN Bevier v. Delaware & H. C. Co., 13 Hun (N. Y.) 254; Manson 7\ Manhattan K. Co , 23 J. & S. (N. Y.) 18; babcock 7/. Fitchburg R. Co., 46 N. Y. S. R. 796. Reviewku in Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282. The bill of lading contained a clause ex- empting defendant from liability for loss by fire. HcU, that, if the fxemi)tion applied to the goods after th York C. ** //. A'. A". Co., 21 lilatchf. (U. S.) 439, 17 Fed. Rep. 905.— Foi.i.owino New York C. R. Co.TA Lockwood, 17. Wall. (U. S. 357. North American Ins. Co. v. Si. Louis, I. Af. &• S. R. Co., 3 MtCrary ( U. S.) 233, 1 1 Fed. Rep. 380. Little Rock, AI. R. 6- T. R. Co. V. Tallot, 18 Am. &> F.ng. R. Cas. 598, 39 Ark. 523. Germania Fire Ins. Co. v. Mem- phis &* C. R. Co., 72 A'. V. 90, 28 Am. Rep. " 5 ; affirming 7 Hun 233. Grace v. Adams, 100 Mass. 505. Adams Ftp. Co. v, Sharp- Itss, 77 Pa, St. 516. York M/g. Co. v, Illinois C. R. Co., 3 IVall. (U 5.) 107. See also Levering v. Union P. &* I. Co. 42 Mo. 88, A provision in a bill of lading excn'.pting the carrier from liability for loss by fire is not absolute even where valid. It is the carrier's duty to exercise reasonable care to prcvv-nt tires, and if a fire occurs it is bound to do all that prudent men would do under tiie same circumstances to stop it, so as to pr::- vent an entire loss; and if it fails to do so it is liable to the extent that goods might have been saved. Woodward v. Illinois C. R. Co., I Hiss. (U. S.) 403. A provision in a bill of lading issued by an express company to the etlect that the company is not to bi: liable " in any manner, or to any extent, for any loss or damage or detention of such package or its contents, or of any portion thereof, occasioned by lire," docs not relieve the company from liability if the goods be destroyed by lire caused by its negligence or the negligence of a rail- road company to which the express com- pany had delivered the goods to be carried over part of the route. Public policy de- mands that the right of owners to absolute security against the negligence of carriers, and of all persons engaged in performing the carrier's duty, shall noi be taken away by any reservation iti the carrier's receipt or by any arrangement between him and the performing company. Hank of Ky. v. Ad- ams F..-p. Co., 93 U. S. 174. 80. Iliirdoii of showliif; tbat rar- ri(>rN iio8^1it(eiice oaiiMiMl tbc loss.— Where bills of lading contain a general exemption from liability for loss by fire it is incuml>ent on the owner of the propcrtv, in order to avoid the effect of the exemption, to show that the loss resulted from the carrier's negligence or some breach of duty which contributed to the loss. W'hituwth V. Frie R. Co., 6 .-/;;/. ming 20 J. &* S. I F BILLS OF LADLNC, Hi. 685 I 496.— Applying Lamb t. Camden & A. R. & T. Co., 46 N. Y. 271; Cuchran v. Dins- more, 49 N. Y. 249; Germania Fire Ins. Co. V. Memphis & C. R. Co., 72 N. Y. 90. Where a bill of lading relieves the carrier from liability for loss by fire, in case of a loss by tire the burden is on the owner to show fault on the part of the carrier. Colton V. Cleveland &* P. R. Co., 67 /' Eng. R. Cas. 358, 91 Ala. 340, 8 So. Rep. 649. A r.iilroad company received certain wines for transportation, giving a bill of lading in which it was stated that the wines were " shipped at an agreement valuation of $20 per barrel." The wines were lost in transit by the negligence of the company's servant. Held, that the company was liable only in the sum of $20 per barrel. Graves v. Lai-e Shore 6f M. S. R. Co., 16 Am. &" Eng. R. Cas. 1 08. 137 A/ass. 33, 50 Am. Rep. 282. — Ari'ROVKD IN Hart v. Pennsylvania R, Co., H2 U.S. 331. Distinguishkd in Louis- ville & N. R. Co. V. Wynn, 45 Am. & Eng. * Validity of stipulations limiting carrier's lia- bility to particul.'ir amoiini, aRret-cl valiuitions, see note, 45 Am & V.sc. R. Cas. 319, 21 /ille &• N. R. Co., 91 7enH. 516, ig S. IV. Rep., 67^. 83. or less than luarkct value at destination.— If a bill of lading is issued containing a provision limiting the carrierVi liability to a certain amount for damaf,es for loss or injury, the damages are limitrd to such amount, regardless of the mark't value of the goods at the place of destiration. Brown v. Cunard Steamship Co., 147 Mass. 58, 16 .V. E. Rep. 717.— Crh- icisiNc The Lydian Monarch, 23 Fed. Rep. 298; Pear.se v. Quebec Steamship Co., 24 Fed. Rep. 285. 84. Limiting amount to value at point and time of shipment.— A pro- vision in a bill of lading that in the event of a loss of any properly for which the carrier might be responsible the value and cost of the same at the point and time of shipment should govern in the settlement for the same is not inoperative as an attempt to limit a coinmon-law liability. Titbits v. Rock Island &- P. R. Co., 49 ///. App. 567. A stipulation in a bill of lading that the cost of property at the point of shipment shall govern in the case of loss does not refer to damage or deterioration while in transit. Heil v. St. Louis, I. At. S» S. R. Co., 16 Afo. App. 363. The bill of lading stipulated that " in the event of the lo.*s of any property," etc., " the value or cost of the same at the point and lime of the shipment is to govern," and that the company in such case was to h?.ve the benefit of any insurance on the pi-operty lost. Held, that the delivery of the flour at the point of destination to a wrong person was not a loss within the iiitentof the bill of ladi ig, and that the proof of value was not, thet :fore, limited to the point of shipment. Haiti more &• O. R. Co. V. Mc Whinney, 36 Ind. 436, 5 Am. Ry. Rep. 312. By a bill of lading, loss occurring during the transportation was to be " computed at the value of the cost of the goods at the time and place of shipment.'' A tarifT of rates of freight put " high wines " in the first class, and in the fourth class " high wines '"'''''' at an agreed valuation not exceeding $20 per barrel ; " the freight for flrst class was $1.60, for fourth class 50 cents per 100 pounds. The rate of freight written in the bill was " 50 cents per 100 pounds," and valuation $20 per barrel." Held, that this valuation and rate were controlling parts of the b.li, and t.iat loss to the goods was to be estimated at %zo per barrel. Efkins v. Empire Transp, Co., 81 Pa. St. 315.— Approved in Hart v. Pennsylvania R. Co., 112 U.S. 331. Dl.s- tinguished in Weiller v. Pennsylvania R. Co., 42 Am. & Eng. R. Cas. 390, 134 Pa. St. 310. S. shipped at special rates four horses under bill of lading containing this clause: " And it is further agreed that should dam- ages occur for which the railroad company may be liable, the value at the place and date of shipment shall govern the settle- ment, in which the amount claimed shall Ai \> ir I t.— A pro- ihe event which the value and nd time of settlement an attempt Titbits V. 4pp. S67. ig that the shipment s does not n while in «S- S. R. Iiat " in the rty." etc., t ihe point o govern," case was to ice on the delivery of lUtion to a within the It the proof ted to the ^ O. R. Co. w. Ry. Rep, ring during Dmputed at )ods at the A tariflr of cs" in the :lass " high Uiition not freiglit for h class 50 ! of freight ts per 100 jr barrel." rate were I t^jat loss ed at $20 'ransp, Co., i Hart V. 33'- Dis- nnsylvania 10, 134 Pa. )ur horses his clause: ould dam- company place and he settlc- med shall BILLS OF LADING, 85,86. 63: not ezceeed for a stallion or jack, 200; for a horse or mule, $100; * * '*' which amounts, it is agreed, are as much as such stock as are herein agreed to be transported are reasonably worth.'' S. sued for injury to one of the horses and recovered $550. Held, that the clause quoted tixes tiie value of each animal separately, and is in form a valid contract. Louisville &* N. R, Co. v. Sowell, 49 Am. &* Eng. R. Cas. 166, 90 Tenn. 17, IS S. iy.Rep.8i7. Such contract is valid, although the carrier did not actually tender another without the clause as to value of animals, if he offered to ship, upon reasonable ternib, under a bill of lading containing no limita- tion as to value, or was ready to do so upon di mand being made by the shipper. Louis- vil'e 6- N. R. Co. v. Sot^/ell, 49 Am. &• Eng. R. Cas. 166, 90 I'enn. 17, 15 S. IV. Rep. 837. Where goods were shipped with a provi- sion in the bill of lading that the value or cost of the property at the point of ship- ment should govern in the settlement of any claim for loss or damage, a judgment, where suit is brought for a loss, in accordance with such provision is proper. Missouri Pac. R. Co. v. Rarnes, 2 Tex. App. (Civ. Cas.) 507. Where it is expressly stipulated in a bill of lading that in the event of loss or dam- age, the value or cost at the point of ship- ment shall govern the settlement of the same, the insertion by the carrier, without the knowledge or consent of the shipper, of almost illegible abbreviations, which are in- terpreted by the carrier to mean " Leaks and outs excepted, $20 railroad valuation," will not bind the shipper, and he may re- cover the actual value. Rosen/eld v. Peoria, D. 5- E. R. Co., 21 Am. &> Eng. R. Cas. B7, 103 /nd. 121, S3 Am, Rep. soo, 2 A'. E. Rep. 344.--QUOTED IN I eonard v. Chicago & A. R. Co., 54 Mo. App. 293. A bill of lading for shipment of live stock provided that in case damage should oc- cur for which the carrier would be liable, " the value at the place and date of ship- ment shall govern the settlement, in which the amount claimed shall not exceed for a stallion or jack, $200; for a horse or mule, $100; ♦ * ♦ which amounts, it is agreed, are as much as such .stock as are herein agreed to be transported are reasonably worth." The proof showed that the thirteen horses shipped were worth, at date and place of shipment, from $130 to $235 each ; and that nine of these were injured in course of transportation. Of the injured horses one died and the value of the other eight was impaired from $2$ to $100 each. All the injured horses brought over $100, except one that brought $90. The court in- structed the jury that the shipper could re- cover only $100 for the dead horse, and $10 for the injured horse that brought only $90. Held, error, and that under said contract the carrier was liable for damage done to each horse to the extent of $100, without regard to his value after receiving the injury. Starnes v. Louisville &* N. R. Co., 91 Tenn. S16, 19 S. IV. Rep. 67s. 85. Effect of luNH caii8ed by car- rier's actiiul ncg:li{;eiice. — A provision in a bill of lading issued by an express com- pany providing that the liability of the com- pany should be limited to a certain amount, unless the true value of the property should be stated and inserted in the bill of lading at the time of shipment, is valid only so far as a loss or injury occurs without the fault or negligence of the carrier. Southern Exp. Co. v. Seide, 42 Am. &* Eng. R. Cas. 398, 67 A/iss. 609, 7 So. Rep. $47. A carrier is not exempted from paying full value for goods lost through its own negligence, although the bill of lading stipulates that " in consideration of rates in- serted it is agreed that, in case of loss or damage, the same shall be adjusted at a valuation of $20 per barrel. ' Alabama (S. S. R. Co. v. Little, 1 2 Am. &> Eng. R. Cas. 37, 71 Ala. 611. A common carrier is liable for the value of the goods lost through his negligence, notwithstanding the bill of lading provides that the carrier shall not be liable beyond an amount named therein, when it is under- ^ ood by the parties that the sum so agreed on is less than the value of the goods. Such an agreement can, at most, cover a loss arising from some cause other than the negligence or default of the carrier or his servants, and the rule of damages is the same, although less is charged and paid for the transportation than when the exempting clause is omitted. United States Exp. Co. v. Backman, 28 Ohio St. 144, 14 Am. Ry. Rip. 82.— Kf.vikwing neck v. Evans, 16 East 243.— DrsAPPROVED in Hart v. Penn- sylvania R. Co., 112 U. S. 331. Followed IN Baltimore & O. R. Co. v. Campbell, 36 Ohio St. 647. 86. GfTect of the stipulation where o.'irricr l.s guilt)* of <'onvorsloii.— Al- M««iV G38 BILLS OF LADING, 87-91. f . though a bill of lading contains a stipula- tion that in case uf loss the measure of damages shall bu the value of the goods at the place of shipment, such stipulation does not limit the liability of the currier for the wrongful conversion of the goods, and he is liable for their value at the place of destina- tion. Erie Dispatch v. Johnson, 40 Am. &* Eng. R. Cas. 113, 87 Ti-nn. 490, 11 S. IV. Rep. 441. 87. Waiver uf limitation by pay- ment of lart;cr miimi. — A provision in a bill of lading limiving the carrier's liability with respect to the amount of damages in case of loss or injury to a horse is waived by the carrier takinj; the iiorse after he is injured, and paying a larger sum than tlic limit fixed in the bill of lading. Chicago &* E. I. R. Co. v. Katsenbach, 38 Am. tS- Eng. R. Cas. 375, 1 18 Ind. 174, 20 N. E. Rep. 709, 4. Particular Stipulations and Clauses.* 88. Fixinj; rates. — Where a shipper is familiar with the published tariff rates of a railroad company, a bill of lading contai'' - ing the provision that it was issued " sub- ject to the published tariff of said company and its connections," the rates specified in the tariff schedule relating to the kind of goods shipped forms part of the contract. Atchison, T. &» S. F. R. Co. v. Kobens, 3 Tex. Civ. App. 370, 22 5. W. Rep. 1S3. 89. Guaranteeiiiif Rates.t— A pro- vision in a through bill of lading guarantee- ing a certain rate of carriage is not affected by a provision limiting the issuing carrier's liability for damage to that which occurs while the goods are in transit over its own line. Little Rock <&* Ft. S. R. Co. v. Daniels, 32 Am. 5- Eng. R. Cas. 479.49 ^rk. 352. 5 S. IV. Rep. 584. See also Baltimore &* O. R. Co. V. Wilkens, 44 Md. 11. Tardos v. Chi- cago, St. L. &• N. O.R. Co., 35 /. Iowa 580; Butler 7/. East Tenn. & V. R, Co., 8 Lea (Tenn.) 32. A stipulation in a bill of lading issued by a transportation company that goods re- ceived for shipment at Boston are ' to be forwarded to Louisville depot only,'' does not relieve the carrier from its duty to properly care for them after their arrival at the latter place. Merchants' D 39 113 V. Case, 1 8 Am. & Eng. R. Cas. $78, 21 Fed. Rep. 885. In an action by the shipper of apples under a bill of lading exempting the carrier from liability for damage to |)erisliuble prop- erty from delay, it is competent for the de- fendant to prove that prior to such ship- ment the plaintiff had filled up similar blank bil's for shipments, which contained the same stipulation in regard to perishable property, as going to show plaintiff's knowl- edge of and assent to such provision. IVa- dash, St, L. &» P. /i, Co. v. Jaggerman, 23 Am. 6t* Eng. R. Cas. 680, 1 1 5 ///. 407, 4 A'. E. Rep. 641. Notwithstanding a provision in a bill of lading that the carrier should not be re- sponsible for "damage to perishable properly of any kind occasioned by delays from any cause," he may and will become liable for delay as the result of actual negligence. But proof of delay, merely, is not sufficient to show negligence in transporting the goods. Wabash, St. L. &> P. R. Co. v. Jaggerman, 23 Am. &* Eng. R. Cas. 680, 1 1 5 ///. 407, 4 N.E. Rep. 641. A provision in a bill uf lading providing that the carrier shall not be liable for loss of perishable goods caused by delay does not apply to a loss through delay which is caused by the negligence of the carrier, where there is no provision in the bill of lading exempting the carrier from liability for such negligence. McKay v. New York C. &• H. R. R. Co., 50 Hun {N. Y.) 563. 20 N. Y. S. R. 816, 3 N. Y. Supp. 708.— Apply- ing Condict V. Grand Trunk R. Co., 54 N. Y. 500; Lamb v. Camden & A. R. & T. Co.. 46 N. Y. 271 ; Mynard v. Syracuse. B. & N. Y. R. Co.. 71 N. Y. 180. 02. Liinitiiiir liability for Iohh by freezing. — Where a carrier agrees to trans- port perishable fruits through, in refrigerator cars, without a change, it is liable for a loss occurring by the fruit freezing by reason of being transferred to common box cars, not- withstanding the delivery of a bill of lading ^.fier the shipment containing a provision that the carrier would not be liable for in- juni or ios« occasioned by the weather. Mil chants' D. 5* T. Co. v. Cornforth, 3 Colo. 280. A provision in a bill of lading providing that potatoes were to be carried at the owner's risk of freezing does not relieve the carrier from liability for a loss c.iused by a failure to carry them promptly. Read v, St. Louis, K. C. &> N. R. Co., 60 Mo. 199, 9 Ant. Ry. Rep. 201. 93. Limiting liability for injuries to Mtock while being: loaded.— A pro- vision in a bill of lading exempting the carrier from liability for injuries to live stock while being loaded does not relieve it from liability for an injury caused by a failure to provide safe and sufficient accommoda- tions for loading it. Potter v. Sharp, 24 Hun (.V. Y.) 179. 04. Requiring bill to be presented indoFMed.* — A provision in a bill of lading requiring the bill uf lading to be presented indorsed as a condition precedent to the right to demand delivery of the goods is valid, but a provision requiring it to be indorsed and presented before the goods reached their place of de.stination is not valid. Bishop v. Empire Transp. Co., \ J. &- S. (N. J'.) 99. 05. Restrivtini; liability for Iohs of packngfcs. — Seventy thousand pounds of corn in bulk is not a "package " within the meaning of a printed clause in a bill of lad- ing restricting the carrier's liability for the loss of packages. Rosenstein v. Missouri Pac. R. Co., 16 Mo. App. 225. 00. Stipulation aw to place of pre- senting claim for loss.— The " place of delivery" within the meaning of a bill of lading issued by the first of a line of through carriers and requiiing notice of a claim for damages for loss or delay to be made to the agent "at the place of delivery " is the place of ultimate destination and not the place where the carrier issuing the bill of lading turns the goods over to a connecting line. Mason v. Grand Trunk R. Co., 37 U. C. Q. n. 163. 07. As to the time within which to present such claim.— A provision in a bill of lading requiring a claim for loss or damage to be presented within thirty days :■* valid and binding. Kaiser v. Hoey, i6 A'. Y. S. R. 803, I N. Y. Sup/). 429. A provision in a bill of lading that a claim for loss or damage should be presented within forty days does not apply to dam- ages resulting from a failure of the carrier to furnish cars. Gulf, C. &■> S. F. R. Co. v. McCarty. 82 Tex. 608, 18 S. IV. Rep. 716.— Following McCarty v. Gulf, C. & S. F. R. Co., 79 Tex. 33. Stipulation in bill of lading as to notice * See anit, 48. I'll. . W\ S40 BILLS OF LADING, «7. of claim for damage done to goods while /n transitu, and before delivery, held not to apply where owner refused to receive goods. Gulf, C. &>» S. F. R. Co. V. Golding, 23 Am. &» Eng. K. Cas. 73a. 3 Tex. App. (Civ. Cas) 60. A carrier cannot require a shipper who sustains a loss to give notice of his claim within a short period of the date of the bill of lading without reterence to the time of the loss. Pacific Exp. Co, v. Darnell, ( Tex.) 32 Am. &• Eng. R. Cas. 543. 6 S. IV. Rep. 765. A stipulation in a bill of lading as to notice of a claim for damages to the goods shipped is valid and binding, and must be complied witii by the shipper before he has a right of action for damages. Texas &* P. R. Co. V. Jackson, 3 Tex. App. {Civ. Cas.) 65. A stipulation in a bill of lading which exempts the carrier from liability unless notice is given of the damage within a specified time is one of the matters for- bidden by $ 2068 of the Georgia Code, and is not effectual without proof of assent thereto by the shipper. Central R. &* B. Co. V. Hasselkus (Ga.), 55 Am. &» Eng. R. Cas. 586. 17 S. E. Rep. 838. Provisions requiring claims for loss or damage to be presented within thirty-six hours after the arrival of the goods are not as a matter of law reasonable. Bro7un v. Adams, 3 Tex. App. {Civ. Cas.) 462. Five barrels of whiskey were shipped, and a bill of ladingwastaken containing the pro- vision : " Claims for loss or damage must be presented to the delivering line within tliirty- six hours after the arrival of the freight." One of the barrels was never delivered. Held, in an action for failure to deliver the one barrel, that the provision did not apply ; and that an assurance by the local agent, upon delivering the four barrels, that the other would be delivered in a few days was a waiver of such notice. Galveston, H. &* S. A. R. Co. v. Ball, 80 Tex. 602, 16 S. IV. Rep. 441. An express company undertook to carry C. O. D. goods under a bill of lading stipu- lating that in no event should the company be liable for loss or damage unless theclaim should be presented in writing within thirty days after the date of the bill of lading, with a further provision that " if nny sum of money besides the cliarge of transportation is to be collected from the consignee on delivery of the property, and the sum is not paid within thirty days from the date of the bill of lading, the shipper agrees that this company may return such property to him at the expiration of that time, subject to the conditions of its receipt, and that he would pay the charges for transportation both ways, and that the liability of the com- pany while in this position, for the purpose of making such collection, should be that of warehouseman only." The company failed to collect the amount or to return the property, //eld, that the owner of the property was not restricted to thirty days in the presentation of his claim, but was en- titled to a reasonable time in which to do so. Smit/t V. Dinsmore, 9 Daly {N. Y.) 188. — Applied in Hirshberg v. Dinsmore, 12 Daly (N. Y.) 429, 67 How. Pr. 103. A stipulation in a bill of lading that in case any claim for damage should arise for the loss of articles mentioned in the receipt, while in transitu or before delivery, the extent of such damage or loss shall be ad- justed before removal from the station, and the claim therefor made in thirty days to a "trace agent" of the carrier, is an un- reasonable provision which the courts will not uphold. Capehart v. Seaboard &* R. R. Co., 81 A^. Car. 438.— Followinc. New Jersey Sleam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344; Bank of Ky. v. Adams Exp. Co., 93 U. S. 174. A provision in a bill of lading that any claim fur injury thereto shall be adjusted in the presence of an officer before the goods arc removed from the station, and requiring notice to be given within ten days from the time the goods are del.vered, ha? no application where the goods are so dam- aged as be entirely worthless and the con- signee refuses to receive them. Gulf, C, &* S. F. R. Co. V. Golding, 23 Am. &• Eng. R. Cas. 732, 3 Tex. App. (Civ. Cas.) 60. The carrier must allege and prove the reasonableness of a provision requiring claims for loss or damage to be presented within thirty-six hours after the arrival of the goods. Brown v. Adam, 3 Tex. App. {Civ. Cas.) 462. A condition in a bill of lading that no claim for damages for loss or detention of goods will be allowed " unless notice in writing and the particulars of the claim for said loss, damage, or detention " are given within thirty-six hours, is not complied with by writing to the agent " that the delay has BILLS OF LADING, U8-102. 641 been unreasonable and loss siifTered through the detention, that plaintiff has been com- pelled to reorder goods, and will imld the company accountable," such notice contain- ing no purticiilars of the loss. Mason v. Grand Trunk A'. Co., 37 I/. C Q. />'. 163. 98. Cuiiditioii iiH to iHiyiiiciit of t'roiglit cliuri;eH by coiiNiKiieeM before ih'llvepy.*— A clause in ii bill of lading making the payment of freight by the con- sij^nec a condition of the delivery of the gr)od.s is inserted for the benefit of the carrier. It is regarded as a letter of request from the consignor, and the reception of the property causes an implication that the consignees intend to comply with the re- quest, and the law implies a promise upon which the carrier may found an action for the freight; and this rule applies to every consignee named in the bill of lading, whether final or intermediate. Canfidd V. Northern A\ Co.. 18 Bard. (/V. V.) 586. Compare also Meyer v. Lemcke, 31 Ind. 208. 1M>. Stipiilutioii for benefit of iii- siiriiii<;c.f — .\ carrier may stipulate in his .(ontract of shi|)ment for the benefit of any insurance that may have been effected upon the goods to be transported, and, in the ab- sence of notice to the contrary, a carrier has the right to presume that an agent of the shipper has authority to contract for such a stipulation ; and such an agreement by the agent defeats the insurer's right of subrogation. Furthermore, the subroga- tion clause in the bill of lading cannot be held invalid on account of lack of consider- ation, simply because there was no corre- sponding reduction of the freight-charges. Missouri Pac. R. Co. v. International Marine Ins. Co., 55 Am. to be transported partly by rail and partly by water, and it was stipulated in the bill of lading that " it is especially agreed and understood that the company is not resiton- sible for loss or damage on the lakes or rivers, unless it can be shown that such damage or loss occurred through the negli- gence or default of the agents of the com- pany;" and the freight, after being carried by the defendant, was placed upon a wharf- boat, awaiting the arrival of a packet, wherein to ship it, and the wliarf-boat sank without the fault of the railroad qpmpuny, and the freight was lost — AM, that the loss was not one occurring on the lakes and rivers within the meaning of the bill of lad- ing, and that the bill of lading should be construed to mean that, in the absence of negligence, the carrier was not to be re- ponsible for loss or damage occurring in the navigation of the lakes or rivers. .SV. Lout's 6r* S. £. R. Co, v. StnucJt, 49 /« Eng, R. Cas, 168, 87 N. Car. 255. A railroad company accustomed to trans- port cotton owned 120 flat cars which were usually ample to carry on all its business in that line. In the autumn of 1881 the cot- ton crop was very heavy, and there were many delays in consequence. At the same time a connecting line, over which much of the cotton was forwarded, gave notice that it would thereafter transport cotton only in box-cars and not in flat cars. The company first above-named had nut siillicient box- cars to carry on its business and was wholly unable at once to obtain more. At this juncture, A. & Co. delivered certain cotton to the railroad for transportation, receiving a through bill of lading over the connecting line, which bill contained a clause providing that tiie cotton was received for transporta- tion "at the company's convenience." A. A Co., although well able to read, did not no- tice said clause until after the bringing of the suit hereinafter mentioned. The cot- ton waa not shipped for more than five days, owing to the circumstances above mentioned. In a suit by A. A Co. against the railroad company to recover the statu- tory penalty — he/ti, that under the circum- stances of the case the clause above cited in the bill of lading was a valid one, and might be taken advantage of by the com- pany, and that therefore plaintilTs could not recover. Whitehead v. Wilmington &* W. R. Co.. 9 Am. 6- Eng, R. Cas! 168, 87 A^. Car. 255. 104. EflTect of the clauHO "nt owner'M tIhU."— The term " at the owner's risk " in bills of lading which are declared to be special contracts, taken in connection with the other stipulations therein, is held to limit the carrier to such loss and damage only as might result frr)m ordin ^ry neglect ; which is defined to mean that want of care and diligence which prudent men usually bestow on their own coniereis. /ialtimort 6- O, R. Co. V. Rathbone, 1 //'. \'a. 87. Where by the bill of lading the goods are received "at owners' risk of loss or damage," any damage to the goods must be proved to have been caused by the fault of the carrier before he can be held liable. Mississippi Valley Transp. Co. v. Fostick, Mann. (La.) 3. Even if verbal evidence was admissible to prove a contract to carry oil in covered cars, defendants were not liable thereon, as the agent had no authority to make such a contract ; but, held, that they were not guilty of negligence, liability for which, the condi- tion that "oil will unuer no circumstances be carried save at the risk of the owners " did not exempt them. Fitzgerald v. Grand Trunk R. Co., 4 Ont. App. 601 ; affirming 28 U. C, C, P. 586.— Rkviewing Peck v. North Staflfordsbire R. Co., 10 H. L. 473; Shaw V. York & N. M. R. Co., 13 Q B. 347 : Carr %>. Lancashire & Y. R. Co., 7 Kx. 707; I' > All BILLS OF LADING, lUS-llO. (>43 'at Allday v. Great Western R. Co., s B. A S. 903. DisTrN(iUisMiN(i D'Arc v. London & N.VV. U. Co.. L. R. «;C. P. 325. In a bill of lading given by a railroad com|)uny, an exception or stipulation in the Words "taken at owner's risk" does not change the churactrr of the employment, but only exempts the company from its lia- bility as insurer, and the company when sued for a failure to deliver the goods is not relieved from the onus of making at least a prima-fttih' showing that the loss was not caused by its neglect ; and the showing that the transaction occurred dur- ing the war, and that the railroad was fre- quently used by the military authorities, and there was a great want of safety and certainty in the trans|K)rtation of freight, docs not make out such priiiia-fixcie case. Mobile &* O. R. Co. v. Jarboe, 41 Ala. 644.— Rkviewki) in Mobile & O. R. Co. v. Thomas, 42 Ala. 672. lUff. KflTevt orfliuiMc " privilege of rcMliippliig.**— The words " privilege of reshipping" in a bill of lading are intended for thR benefit of the carrier, but do not limit his responsibility, lie is bound for the safe delivery of the property precisely as if such words were not in the bill of lading. liroait- ■ii'ell v. liutltr, 6 Ate Lean ((/. H.) 296. 100. lOft'vvt of ciniiNo " iiiiiivolduble iM'cid«'iitM," etc. — An except ion contained in a bill of lading of a common carrier by land "of unavoidable dangers and accidents of the road," is not a restriction of his gen- eral liability. Waipole v. liruiges, 5 lilackf. (Ind.) 222. The use of the words " unavoidable acci- dents" in a bill of lading, instead of the usual ones, " inevitable accidents," does not vary the meaning of the instrument or change the liability of the carriers. Fowler V. Davenport, 2 1 Tex. 626. See also f/ar- mony v. Bingham, 1 Duer (N. K) 209. 107. Meaning of the tcrniH " break- ing" and "chafing."— In respect to every injury except those specially ex- cepted the defendant was subject to all the responsibilities of a common carrier. Among the exceptions were "breaking" and "chafing." Held not to have been in- tended to apply to live stock, and that the breaking of the leg of a mare was not covered by them. Coupiand v. Housatonic R. Co.,f>\ Conn. 531. 23 ////. Kep. 870. — Dis- TINCUlSHlNi; Camp v. Hartford & N. Y. Steamboat Co., 43 Conn. 333. III. mSOOTIABILITT AVD THANiriB.* I. Negotiability and Mode of iramfer, lUH. Negotiability of the bill, gen- erally.f — iiills of lading arc not negotiable in the same sense in which billsof exchange or promissory notes are. Italtitnore »&«• O, R, Co. v. Wilkens, 44 Md. 11. Doiiglas v. People's Rank, 86 A>. 176. 5 .S". W. K,p. 420, Ratavia Rank v. A'P- 822, ii A'. E. Rep. 433; affirming 33 Hun 589. Missouri Pac. R. Co. v. Heidenheimer, 8a Tex. 195. 17 >'. \y. R'P. 6o«, Stone v. Wa- bash, St. I.. &* P. R. Co., 9 ///. App. 48. Na.ional Rank v. Atlanta &* C. .1. I.. R, Co., 2$ So. Car. 216. .Shaw v. Merchants' Nat. Rank, 101 U. S. 557. Lehman v. Central R. &* R. Co., 4 Woods (U. S.) 560, 1 2 Fed. Rep. 595. A bill of lading is to be regarded as a ^// Eng. R. Cas. 76, 80, 133 Mass. 154. — Compare also Clementson v. Grand Trunk R. Co., 42 U. C. Q. B. 263. 111. Transfer of the bill, generally. —Though a bill of lading is not negotiable in the ordinary sense of the term, it is assign- able to the same extent as the property that it represents, and the rights of innocent holders should be protected the same as if they were in possession of the property it- self. S/one V. IVadas/i, St. L. Sf P. R. Co., 9 ///. App. 48. The right of property in goods may be transferred by delivery or indorsement of the bill of lading. Baltimore 6^ O. R. Co. v. Wilkens, 44 Md. 1 1. Gen. St. Minnesota 1878, ch. 124, § 17, merely makes a transfer and delivery of bills of lading symbols of property, in the mode therein prescribed, equivalent, for certain purposes, to a transfer and delivery of the property itself. National Bank v. Chicago, B.&'N. R. Co., 44 Minn. 224, 46 N. IV. Rep. 342, 560. It is not absolutely necessary that a bill of lading should be actually indorsed or even delivered to the buyer to mai T. R. Co., 54 Mo. App. 400. A bill of lading, though not negotiable in the full sense of that term, is negotiable so far that by indorsement the right to the pos- session of the goods mentioned in it passes. National Bank v. Atlanta 6- C. A. L. R. Co., 25 So. Car. 216. A bill of lading may be transferred by iii dorsement and transfer, and passes a good title to the assignee in the goods represented by the bill. Missouri Pac. R, Co. v. Heiden- heimer, 82 Tex. 195, 17 5. W. Rep. 608. 1 13. Transfer by delivery \t'ithont indorsement.! — A formal assignment of a bill of lading is not essential to transfer title to the goods therein mentioned. Jef- fersonville, M. &* I. R. Co. v. Ir'i'in, 46 Ind. 180. The transfer of a bill of lading by the ship- per, on a sale or pledge of the property shipped, is a symbolical delivery of the prop- erty, without any indorsement on the bill. Michigan C. R. Co. v. Phillips, 60 ///. 190. In such a case the same rule applies to the shipper who is not the owner, but has been put in possession of the property under such circumstances as to sell and pass the title to an innocent purchaser. Such a pledge and transfer of the bill of lading transfers a legal and not a mere equitable title in the pledge. Michigan C. R. Co. v. Phillips, 60 ///. 190.— Reviewed in Illinois C R. Co V. Southern Bank, 41 111. App. 287. Goods shipped under bill of lading drawn *Seert»/^ 00. f See ante, 57, 58. Transfer of bill of lading without indorse- ment, see note, 30 Am. & Eng. R. Cas. 105. Delivery of unindorsed bill of lading, see note, 18 Am. & Eng. R. Cas. 651. Delivery of goods by carrier on unindorsrd bill of lading, fictitious name-, see 45 Am. & Eng. R. Cas. 384, abstr. BILLS OF LADING, 114-110. OVi to order of the shipper may be transferred by delivery of the bill of lading witliout in- dorsement. Merchants Bank v. Union R. i3«» 7'. Co., 69 N. V. 373 ; affirming 8 Hun 249. — Following Bank of F'^chester v. [ones, 4 N. Y. 497 ; City Bank v. Rome, W. \0. R. Co.. 44N. Y. 136. Tiie mere delivery of a bill of lading trans- fers the title to tlie property. Jeffersonviile, M. &^ I. Ji. Co. V. Irvin, 46 Ind. 180. Where a bill of lading requires freight to be delivered to the order of the consignor, tlie deposit in the post of the bill of lading, unindorsed, attached to a draft drawn upon a third person for the purchase-price of the freight, and directed to such third person, does not necessarily raise a conclusive pre- sumption that such third person was there- l)y vested with the title to the freight ; but it may be shown that it was vendor's inten- tion to retain the title in himself until after tlie acceptance or payment of the draft. Alabama G. S. R. Co. v. Mi. Vernon Co., 35 Am. &• En^. R. Cas. 657, 84 A/a. 173, 4 So. Kfp. 356. 114. Effect of words "nou-nego- tinble " written in the bill.— At com- mon law a carrier can limit its liability, and the statute relating to bills of lading is in derogation of the common law, and the object of the statute in requiring the inser- tion of the words " not negotiable " in bills of lading was not to affect any transfer of the title with notice that the shipper's ven- dor had not been paid the purchase-price, etc., but to notify the shipper himself that the bill of lading was not subject to the operation of the statute. Dymock v. Mis- souri, K. &> T. R. Co., 54 Mo. App. 400. Bills of lading are not negotiable in the fullest sense of the term, but they are trans- ferable, and carry with them the ownership, either general or special, of the property described ; and unless the carrier has limited its liability by stamping them as "not ne- gotiable," it is bound to know that their office and effect is not limited to the person to whom they are first issued, and to deliver the property only on production of the bills. Bank of Butavia v. Ne%v York, L. E. Si^ W. R. Co., 32 Am. &• Eng. R. Cas. 497, 106 N. V. 195. 8 N. v. S. R. 209, 7 Cent. Rep. 822, 12 A^. E. Rep. 433; affirming ^^ Nun 589. Compare also Colgate v. Pennsylvania Co., 102 .V. Y. 120, I A^. Y. S. R. 166, 6 A^. E. Rep. 114; affirming 31 Nun 297. 2. Rig /its 0/ Transferee, 115. Generally.*— A hill of lading is not such a negotiable instrument as to give to the assignee any other or greater rights than the assignor had. Naas v. A'ansas City, Ft. S. <&* G. R. Co., 35 Am. &• Eng. R. Cas. 572, 81 Ga. 792, 7 S. E. Rep. 629. A delivery by the consignor to the con- signee of a bill of lading vests title in the goods therein mentioned so far as the consignor had title thereto. Ela v. Amer- ican Merc/iants' U. Exp. Co., 29 Wis. 611. The transfer of a bill of lading, for value, by indorsement and delivery, passes to the transferee whatever title the transferrer had to the property at the time. Hc/d, accord- ingly, that such transferee's title is superior to the lien claim of a person, to whom the carrier delivered the property, for charges against the transferrer on prior consign- ments. Dickson V. Merc/iants' E/evator Co. , 44 Mo. App. 498. The holder of a railway receipt or bill of lading can acquire no greater rights under it than were possessed by the original con- signee. Hunt V. Mississippi C. R. Co., 29 La. Ann. 446. The transfer of a bill of lading operates only as a transfer of whatever title the trans- ferrer has at the time to the goods covered by it. And if a shipper takes a bill of lading to himself as consignee, and the carrier de- livers the goods to another with the consent of the shipper, but without surrender of the bill of lading, a subsequent consignee of the bill of lading, though acquiring it without notice and for value, has no recourse against the carrier. Alabama Nat. Bank v. Mobi/e 6- O. R. Co., 42 Mo. App. 284. 116. Rig:lits of bona-flde holders, geuerally.f — Where one of two innocent parties must suffer from wrongful or tor- tious acts of a third party the law casts the b :den or loss upon him by whose act,omis- ".on, or negligence such third party was en- abled to commit the wrong which occasioned the loss. So //fW, where a carrier negligently issued two original bills of lading for the same goods. IVic/iita Sav. Bank v. Atc/ti- * Indorsement and transfer of bill of lading, title of holder, see note, 38 Am. Dec 419. t See ante, 15, 16. Indorsee for value, when without notice, of a bill of lading, not bound by terms of extrinsic collateral agreements, see note, 23 Am. & Eng. R. Cas. 701. aw BILLS OF LADING, 117-121. !• ' <>-- ii' 1 1 I i .It son, T. &^ S. F. R. Co., 20 Art//. 519, 20 Aw. Ay. Kep. 299. The purchaser of a bill of lading who has reason to believe that his vendor was not the owner thereof, or that it was held to secure an outstanding draft, is not a bona- fide purchaser, nor is he entitled to hold the merchandise covered by the bill against its true owner Shaiu v. Merchants' Nat. Bank, loi U. S. 557. One who clothes another with evidence of ownership of a bill of lading, thereby put- ting it in his power to deal with it as his own, is estopped from asserting his real title as against a purchaser having no knowledge of such title ; and this, too. though such bii oc merely assignable. Dymock v. Missouri, A . 6- T. R. Co., 54 Mo. A pp. 400. 117. Who is a boiia-fitle holder, a question of fact.— In a suit by assignees of a bill of lading against a railroad for a non-delivery of the goods, the question whether plaintifTs are assignees for value is one of fact, and cannot be determined on demurrer. Royal Canadian Bank v. Grand Trunk R. Co., 23 U. C. C. P. 225.— DrSTiN- GUiSHED IN Oliver v. Great Western R. Co., 28 U. C. C. P. 143. 118. Bight of indorsee or trans- feree to sue in his own name.— A stat- ute making bills of lading negotiable by in- dorsement and delivery, without attempting to define the effect of the transfer, is to be understood as merely giving the indorsee the right to sue in his own name. Shaw v. Merchants' Nat. Bank, loi U. S. 557. Bills of lading stand in the place of the goods they represent, and delivery or in- dorsement of them transfers the right of property in the goods, but not in the con- tract itself, so as to enable the indorsee to maintain at common law an action on it in his own name. Baltimore &• O. R. Co. v. Wilkens, 44 Md. 1 1. The assignee of a bill of lading cannot sue thereon in his own name, but must sue in the name of the assignor, for his use, as such an instrument is a chose in action and is not negotiable. Kn^ht v. St. Louis, I. M. &* S. R. C(?., 141 ///. 1 10; affirming 40 ///. App. 471. 30 N- £■ R(p' 543- Under the Code the transferee of a bill of lading may bring an action thereon in his own name against the carrier. Merchants' Bank v. Union R. &* T. Co., 69 A'. Y. 373 ; affirming 8 Hun 249. 119. Right to maintain action of trover. — A claim for the conversion of goods is assignable, and the transfer of a bill of lading will pass to the transferee a claim of the transferrer for the conversion of the goods represented by such bill. Dick- son V. Merchants' Elevator Co., 44 Mo. App. 498. The remedy of the transferee of a bill of lading, where the carrier has delivered the property without a production of the hill, as required by statute, is not confined to an action for damages as given by the N. Y. act of 1866, ch. 440, § 3, but he may main- tain an action for the conversion of the property, even though the delivery was hy mistake, without evil intent. Colgate v. Pennsylvania Co., 102 A^. Y. 120,6 A^ E. Rep. 114. A railroad company transporting grain deposited the same, in accordance with the custom of trade, in a grain elevator at the point of destination, where it was nii-red with other grain of like quality. Subse- quently, on demand, it delivered to the con- signee of such grain an equal quantity to that transported, but without demanding the bill of lading, which was drawn to the consignee's order. An indorsee of said bill prior to the arrival of the grain brought trover against the railway company for a misdelivery. Held, that the plaintiff was entitled to recover. Forbes v. Boston &• L. R. Co., gAm. &- Eng. R. Cas., 76, 80, 133 Mass. 154. 120. Transferee of lost or stolen bill.i' — The holder of a lost or stolen bill of lading is not protected by the rule that a bona-fide purchaser of a lost or stolen bill or note, indorsed in blank or payable to bearer, is not bound to look beyond the instrument. The bill of lading is not negotiable in the sense of bills and notes, and the rule does not apply. Shaw v. Merchants' Nat. Bank, loi U. S. 557. 121. Transferee of bill issued when no gooils were actually re- ceived.! — The carrier is liable to a t)ona- fide holder or innocent purchaser or indorsee of a bill of lading, even though the whole amount or no part of the goods mentioned in the bill was ever received by the carrier. Wichita Sav. Bank v. Atchison, T. Eng. R. Cas. 442, 140 A'. V. 267, 55 A^. V. S. R. 656, 35 A^. E. Rep. 592 ; re- versing 63 Hun 624, 44 A'^ Y. S. ^. 9, 17 A'. Y. Supp. 336. The acquisition by a railroad corporation of the right of way does not carry with it the privilege of throwing stones or other material, by blasting, to a distance of two hundred yards or more onto the lands of an adjacent proprietor, whereby the family of the latter are exposed to danger while en- gaged in their domestic duties. Blackivell V. Lynchburg &• D. R. Co., i\\ N. Car. 151, 16 5. E. Rep. 12. Where those engaged in the construction of a railway employ a powerful explosive in blasting — of the effects of which they will be presumed to have knowledge— it is their duty to cover the blast, or otherwise restrict the effect of the explosion, so as to prevent danger to others ; and if this be im- practicable, they should give timely warning of the explosion to all persons who may be in danger from it. Blackwell v. Lynchburg Subropation of sureties, see Subrogation, 1-3. ;• J BONDS, 1,2. 6BA :d or nol. (t\ 30 Am, Pac. Rtp, Taxation of interest due on. rcc Rp.vkn'f., n. To itecure compensation for land condemned, »ee Eminkni' Domain, XI, i (c). When subject to attachment, see Attach- MBNT, ETC., 22. execution, sec Exkcution, 11. Sec also Inukmnhy Hcjnds. I. FOWEB TO nSUB 655 1. In General. 655 2. Formalities Attending the Issue of Bonds 658 II. HEOOTIABILITT 659 III. VALIDITY 661 IT. BIGHTS or PUBCHA8EB8 AND HOLDBBB 663 1. Rights of Bondholders, as Such 663 2. Bona-Frde Purchasers 672 y. ACTIONS ON BONDS 6;6 I. FOWEB TO ISSUE. I. In General. 1. Power to isHiic, generally. ♦—A corporation, lilce a natural person, has tlie right to carry on its legitimate business by all legal and necessary means not prohib- ited by law or by its charter; and it may issue its bonds for the purpose of carrying out the object of its creation, and it will be bound thereby. Philadelphia 6- 5. R. Co. V. Lewis, 33 Pa. St. 33. A railroad company has the power, with- out any specific authority being conferred by the charter, to accept a rerpetual loan and to issue irredeemable bonus to the lend- ers. Philadelphia Or- R. R. Co.'s Appeal, 4 Am, &* Eng. R. Cas. ii«, 11 W. N, C, {Pa,) 325- The power to borrovr money and to give the ordinary evidences of loans in the form of bonds or other obligations to the same effect is a necessary incident to the power of the corporation to mortgage its property, and need not be expressly granted ; more- over, it is a necessary incident of the power to build a railroad. Gloninger s. Pittsburgh &* C, R. Co., 46 Am. &• Eng. R. Cas 276, 139 Pa. St. 13, 21 Atl. Rep. 211. Where a railroad company is authorized to issue its own bonds, it may receive bonds of another corporation in payment of debts, and may guarantee their payment in selling ihem again. Rogers L. &• M. Works v. Southern R. Assoc, 34 Fed. Rep, 278. * Issue of bonds by railroad companies, see noie, 7 Am. & Eng. R. Cas. 117. Where a railroad company proceeds under How. Mich. St. ? 3352, authorizing an issu- ing of bonds by resolution for the purpose of borrowing money, it may lawfully pledge such bonds to secure borrowed money. Farmers' L. 6- T. Co. v Toledo 6- .S". //. R. Co., 54 Fid. Rep. 759, 4 C. C. A. 561.— Fol- lowing Piatt V. Union Par. R.Co., 99 U. S. 48; htov. Union Pac. P.. Co., 17 Fed. Rep. 275. The flirt will not interfere to regulate the charaiier of payments or the instru- ment to be issued therefor by a corpo- ration authorized to issue bonds under a va' ' contract, unlers iiicy are expressly for- bidden or unaut'u rized. WiUoughbyv. Chi- cago, f. R. C U. S, Co., 50 N.f. Eq. 656, 25 Atl. R-j>. 27/. A creditor of a corporation having only a claim for unliquidated damages cannot en- join the corporation from issuing bonds se- cured by a mortgage ui from selling per- sonal property. Erie R. Co. v. Wilkesbarre C. Enr. R, Cas. loi, 103 ///. >87.— Distinguishing Oldsv. Cuminings, 31 111. 188. Overrul- ing IN PART Chicago, D. & V. R. Co. v. Lowenthal, 93 111. 433. Under the above provision of the consti- tution, railroad companies have no right to rent, give away, or sell on credit their bonds or stock, nor have they a right to dispose of them except for a present consideration and for corporate purposes. But if, upon a sale of its stocks or bonds for present considera- tion, the company should subsequently ui- vert the proceeds to other than corporate purposes, a dona-fide purchaser of the stock or bonds, or his assignee, cannot be affected by the subsequent misappropriation by the company. Peoria &• S. R. Co. v. Thompson, 7 Am. » Eng. R. Cas. 118, II IV. N. C. {Pa.) 325. 5. Power to issue under agree- ment for reorganization. — The stock- holders, bondholders, and creditors of a mortgaged railroad entered into an agree- ment with the mortgage trustees, pending foreclosure proceedings, to the effect that the latter would take up the outstanding bonds of the company and issue their own certificates in lieu thereof, and that the property should be conveyed to a new cor- poration to be organized, which would issue two series of bonds secured by mortgages, the second series to be issued in redeeming the certificates issued by the trustees. The agreement contained a condition that the "certificate holders might at •'ny time, by the vote or assent of a majoriiy'n par value of their number, modify or change this agreement, or any provision thereof, or the plan herein set forth in any manner they may deem best for the interest of all con- cerned." Held, that the power of amend- ment or alteration was limited to the creation of the new company and the con- I D. R. D.— 42. veyance of the property to it by the trus- tees, as provided for by the agreement ; and tliat a pretended modification authorizing the issue of one series of bonds to be secured by one mortgage, to be used, so far as necessary, in redeeming the trustees' certifi- cates, was not authorized, and therefore not binding on interested parties not assenting thereto. Dutenhofer v. Adirondacks R. Co., 38 N. V. S. R. 710, 60 Hun 578, 14 A^. V. Supp. 558. O. Issuing bonds in payment of debts of company.— The power of a rail- road corporation to contract debts includes the power to issue its bonds as an acknowl- edgment of such a debt. Commissioners of Craven v. Atlantic &* N. C. R. Co., yy N. Car. 289. Certain directors and stockholders made advances to their corporation to pay for re- pairs and improvements, and failed to col- lect interest on mortgage bonds held by them. A subsequent meeting of stock- holders authorized an issue of second mort- gage bonds in a sum larger than the claim held by such creditors, which were required to be sold at not less than 65 per cent of their par Value. Held, that a purchase by such creditors, holdir E.R. R. Co., 4 Gill (Md.) 58. Where the legislature, by a subsequent act (1843, ch. 188), submitted the claim of P. to other arbitrators, to proceed de novo, disregarding the act of 1841, and directed the company to issue the bonds mentioned in the first act to such additional amount as would be sufficient to pay the second award, it was further AeM, that ^he credit- ors of the company, or such of them as had agreed to the law of i84i,and their claims, ascertained by the company, had an interest in the fund, and that without their consent no part nf It could be applied to the pay- ment of any debt for which the act of 1841 did not provide. McCullough v. Annapolis fi- E. R. R. Co., 4 Gill (Md.) 58. 7. Issuing bonds for lease of another road. — A contract entered into by certain stockl'.olders and directors of a railroad company for the lease of a railroad owned by an iron company, in which the same parties were directors and stock- holders, the railroad company to pay there- for in its bonds, which lease is ratified by the unanimous vote of the stockholders of the railroad company, is not void, but at most only voidable ; and where the contract for the lease was fairly entered into, bonds issued in carrying it out will be held valid. Coe v.East &> W. R. Co., 52 Fed. Rep. 531.— Applying Elyton Land Co. v. Birmingham, W. & E. Co., 92 Ala. 407, 9 So. Rep. 129. Following Van Cott v. Van Brunt, 82 N. Y. 535 ; Barr v. New York. L. E. & W. R. Co., 125 N. Y. 263, 26 N. E. Rep. 145, 8. Issuing bonds convertible into stock.* — Where the directors of a railroad company have borrowed money to complete the road or to operate it, they have the right to issue bonds therefor, convertible into stock, though the whole amount of stock may exceed that fixed by charter; and it follows that they have a right to issue stock in exchange for such bonds. Belmont V. Erie R. Co., 52 Bard. {JV. K) 637 •See/w/, 40. But if it sufficiently appear that such issue of bonds is about to be made for the pur> pose of fraudulently increasing the capital stock of the company, and not for the pay- ment of money so borrowed, an injunction will be awarded to restrain the issuing of such bonds; and an injunction may be awarded to restrain the conversion of such bonds into stock against persons holding them who had notice that they did not rep- resent a bona-fide indebtedness. Belmont v. Erie R. Co., 52 Barb. (N. V.) 637. 0. Bight of foreign corporation to issue.— The law of Ohio, authorizing rail- road companies to sell their own bonds and notes at such prices as they may deem ex- pedient, is extended by comity to the com- panies of other states authorized to transact business in Ohio. Junction R. Co. v. Ash- land Bank, 12 Wall. (U. 5.) 226. 10. Ratification of irregular issue. — A corporation having power to issue its bonds to another corporation, for the pur- pose of enabling it to exchange them for bonds of the state, may ratify and affirm, by subsequent action of its stockholders, a previous irregular issue and exchange of its bonds, made by officers or stockholders of the company. State v. Florida C. R. Co., 15 F/a. 690. Where the president of a railroad com- pany is authorized by the directors to exe- cute a mortgage on the road to secure bonds, and exceeds his power by inserting a provision that the principal sum shall be- come due, at the option of the holder, upon default of payment of semi-annual interest, it is competent for the directors to subse- quently ratify the bonds as issued ; but in this case there was not sufficient evidence of such ratification, /esup v. City Bank, 14 JVis. 331. 2. Formalities Attending the Issue of Bonds. 11. Xecesslty of formal issue.— Bonds executed by a railroad company and in the hands of its agents to be negotiated for its use are not property as described by the New York Code, and cannot be seized on attachment, execution, or other process against the corporation. Cunningham v. Pennsylvania, S. &* N. E. R. Co., 11 N. Y. S. R. 663. Silkies V. Richardson, 23 Hun {N. y.) 559- 12. Responsibility of signers.— A bond in these terms, "We, J. B., T. H. (and nineteen others), stockholders in the D. & BONDS, 13-16. 6fi9 t such issue or the pur- the capital )r the pay- injunction : issuing of )n may be 3n of such ns holding lid not rep- Belmont v. 7. •ration to >rizing rail- I bonds and y deem ex- ;o the com- to transact Co. V. Ash- liar issue. to issue its vc the pur- e them for d affirm, by :holders, a lange of its (holders of 7. R. Co., 15 Iroad com- ors to exe- to secure >y inserting m shall be- older, upon aal interest, s to subse- led ; but in evidence of y Bank, 14 u of Bonds. 1 issue.— mpany and negotiated escribed by >t be seized ;her process ningham v. ff., II A^. Y. 23 Hun (N. Ipners.— A , T. H. (and in the D. & A. R. R.. send greeting: Whereas the D. & A. R. R. Co. borrowed of J. B. (and two others) thirty-five thousand dollars; and whereas we, whose names are hereunto sub- scribed and seals affixed, have agreed with the said J. B. and others that in case the corporate property should fail to pay said thirty-five thousand dollars and interest, so that a loss or deficiency should happen, that in that event each of us and each of them, the said J. B. and others, shall sustain an equal portion of said loss," expresses on its face that each should become responsible when and as he signed it, and excludes parol proof that none was to be responsible until all the stockholders had signed it. B/ack V. Shreve, i^ N, J. Eq. 455. 13. Tlie accompanying security- Mortgage or deed of trust. — The bonds issued by the Brunswick & F. R. Co. under its charter, as amended by Ga. act of 1838, without the execution of any mortgage to secure them, do not ipso facto become a lien upon the property of the corporation so as to be superior or even equal in dignity to other bonds issued by the company and secured by deed of trust. Brunswick &* A. R. Co. V. Hughes, 52 Ga. 557, 7 Ani.Ry. Rep. 137. A railroad having a claim for an unpaid subscription to its stock has the power to sell it or to make a contract to dispose of it for the purposes of the road, as much as to assign a promissory note. But the power to sell such securities does not include the power to mortgage them. So the act of the legislature of Wisconsin, in relation to the ex- ecution of mortgages by railroad companies, does not authorize such companies in that state to mortgage their stock subsciiptions as security for the payment of their bonds. Morris v. Cheney, 51 ///. 451. 14. Guaranty by directors.*— The fact that the directors of a railroad company guarantee the company's bonds in their in- dividual capacity does not change what would otherwise be a sale of the bonds into a loan ; but the fact of the personal guaran- tee is a circumstance to be looked to in de- termining whether the transaction was a sale or a loan. If a sale, the guarantee passes as an incident, and is, in equity, assignable to subsequent purchasers of the bonds. Bank of Ashland \. fanes, 16 Ohio St. 145. • Guaranty of '.i.^nds of another company ; validity of, see note, 26 Am. & Eno. R.Cas. 105. 15. Saie or exchange of bondi. — Where railroad bonds are subscribed (or, to be paid for upon call, the buyer may tender the price at any time without waiting for calls, and may demand the bonds. IVatjen V. Green, 46 A»t. &^ Eng. R. Cas. 343, 48 N.f. Eq. 322, 21 Atl. Rep. 1028. An act which authorizes the directors of a company to sell or negotiate bonds issued by said company, at such rates as they may think proper, and which provides that the bonds so sold shall be as valid in every respect as if sold at their par value, applies both to the bonds and to the security given for their payment; and, therefore, the sale of the bonds at a discount does not render invalid a mortgage given to secure them. Coe V. Columbus, P. Sf I. R. Co., 10 Ohio St. 372.— Reviewed in State ex rel.v. Goshen Tp., 14 Ohio St. 569. A company with authority to issue bonds and sell them at such rates as the directors may think proper may exchange them for iron rails. Coe v. Columbus, P. 6s^ I. R. Co., 10 Ohio St. 372. A corporation created by state law and authorized to issue bonds and '1 them to raise funds may sell them either in the state or out, and if sold out of the state, where a lower rate of interest exists, the transaction will not be regarded as a loan. Bank of Ashland y. fones, 16 Ohio St. 145. II. NEGOTIABILITT. 16. In generai."* — Railroad bonds pay- able to a person named, or order, at a place named, are negotiable instruments, and the title thereto passes by delivery without in- dorsement- by the payee ; and this is so whether they are under sale or not. Cok- necticut Mtit. L. Ins. Co. v. Cleveland, C &* C. R. Co., 26 HoTV. Pr. (N. Y.) 225, 41 Barb. ^•, affirming 11 How. Pr. 180.— APPLYING Zabriskie v. Cleveland, C. & C. R. Co., 23 How. (U. S.) 400. Where a railroad corporation issues its bonds payable to bearer, their negotiability is not affected by a provision therein that they may " be registered and made payable by transfer only on the books of the com- pany." Savannah &* M. R. Co. v. Lancaster, 62 Ala. 555. A mere general recital in a bond issued by a railway company, negotiable on its • Railroad bonds are negotiable, see note, 14 Am. & Eng. R. C.\s. 565. 660 BONDS, 17 liO. i I?-' >■ ii^ ! :r: M i'lrl face, that such bond belongs to a series of bonds secured by a trust deed of the prop- erty of the company, whose absolute obli- gation it purports to be, is not sufficient to destroy its negotiability, or to put the dona- fide holder upon inquiry as to the existence of conditions in the deed qualifying the terms of the bond, or affecting his right to maintain a suit at law thereon, upon default in the payment thereof when due. Guil- ford V. Minneapolis, S. St. M. &* A. R. Co., SI Atn. &* Eng. R. Cas. 98, 48 Minn. 560, 51 N. W. Rep.6efi. — Distinguishing Manning V. Norfolk S. R. Co., 29 Fed. Rep. 838; CaylusT/. New York, K. & S. R. Co., 10 Hun (N. Y.) 295. Although, as a general rule, bonds issued by a corporation for the purpose of procur- ing loans, and made payable to bearer, are negotiable, when such instruments contain special stipulations, and their payment is subject to contingencies not within the con- trol of the holder^, they are deprived there by of the character of negotiable instru- ments, and are subject, in the liands of a transferee, to any defense existing thereto that would be available if they were still held by the original payee. McClelland v. Norfolk S. R. Co., no N. V. 469, iS N. £. Rep. 237, 18 JV. y. S R. 344, I L. R. A. 299, 6 Am. St. Rep. y)7; 38 Alb. L.J. 410; revers- ing 3 N. V. S. R. 250. To be negotiable such an instrument must provide for the unconditional payment to a person or order, or bearer, of a certain sum of money, at a time capable of exact ascer- tainment. McClelland V. Norfolk S. R. Co., no N. Y. 469, 18 N. E. Rep. 237, 18 N. Y. S. R. 344, I L. R. A. 299, 6 Am. St. Rep. 397, 38 Alb. L J. 410; reversing 3 N. Y. S. R. 250. 17. Coupon bonds.*— Coupon bonds issued by a corporation and drawn payable to bearer are negotiable instruments. Lang- ston V. South Carolina R. Co 2 So. Car. 248. Where bonds and cou[)ons payable in an- other state are so framed as to be "egoti- able by the general law-merchant, the)' will, in the absence of evidence to the contrary, be presumed to be negotiable by the law of such other state. Tyrell v. Cairo &* St. L. R. Co., 7 Mo. App. 294. 18. municipal aid bonds. t— A bond * Coupon bonds, character and negotiability of, g-;nerally, see note, 64 Am. Dec 428. See also title Coupons. t See also Municipal and Local Aid, XII. issued in part payment of a municipal sub- scription to railroad stock, payable at_ a bank in New York City at a certain time, and providing that it shall be a lien on the stock of the railroad company issued to the city, and that it may be exchanged for a part of said stock at any time before a cash dividend is declared, with coupons at- tached for the annual interest accruing, is governed by the law of New York, and, as such, is governed by the law-merchant, and is negotiable. Aurora v. West, 22 Ind. 88. 19. Liability ul' company indorsin^jr void bonds.— A railroad company sold on the market bonds of a state which were indorsed by the company. The latter certi- fied that the state held its first-mortgage bonds for an equal amount. It was after- ward decided that the bonds of the state were unconstitutional, and that therefore it was not bound. Held, that the railroad was bound by its certificate and indorsement, the case coming within the rule that an in- dorser of commercial paper is a guarantor of its genuineness. Florida C. R. Co. v. Schutte, 3 Am. &* Eng. R. Cas. i, 103 {/. S. 118.— Followed in Tompkins v. Little Rock & Ft. S. R. Co., 21 Fed. Rep. 370,120 U. S. 160, 7 Sup. Ct. Rep. 469, 5 McCrary (U. S.) 597, i8 Fed. Rep. 344 Refkrred TO IN Smith V. Florida C. & W. R. Co., 43 Fed. Rep. 731. Under these circumstances the company is estopped, as to its own liability as in- dorser, from denying the validity of the bonds. Florida C. R. Co. v. Schutte, 3 Am. &• Eng. R. Cas. i, 103 U. S. 118. 20. Transfer by delivery.— Railroad bonds issued payable to the holder are negotiable instruments, and the title thereto passes by delivery. Carpenter v. Rommel, $ Phila.{Pa.) 34. — DISTINGUISHING Diamond V. Lawrence County, 37 Pa. St. 353. FOL- LOWING Carr v. Le Fevre, 27 Pa. St. 413: Bullock v. Wilcox, 7 Watts (Pa.) 328. Over- ruling McCullough v. Houston, i Dall. (U. S.) 441. Quoting Delafield v. Illinois, 2 Hill (N. Y.) 159. Railroad bonds payable to a person named, or his assigns, are negotiable commercial paper, and the title thereto passes by de- livery by an assignment in blank, and their transfer cuts off prior equities existing be- tween the company and the ori Eng. R. Cas. 379, 71 Md. 338, \^Atl. Rep. 661. 24. Interest and Usury. — Railroad bonds are not void by a provision therein to pay an illegal rate of interest, but are only void as to the excess in the rate of interest. Philadelphia &* S. R. Co. v. Lewis, 33 Pa. Si- 33- The Arkansas act of January 22, 1855, § 7, limiting the rate of interest to seven percent on corporation bonds issued for an increase of stock or for borrowed money, does not apply to bonds issued in payment of railroad Pi.^perty bought at a foreclosure sale. Memphis (S- L. R. R. Co. v. Dow, 120 (/. S. 287. 7 Sup. Ct. Rep. 482. Bonds of a railroad company are not void because, under authority to issue them at "a rate of interest not exceeding eight per cert per annum, and having not more than thirty years to run," the company issued bonds with interest payable semi-annually and contracted that, in default of the reason- ably prompt payment of the interest as it should accrue, the principal sum might be treated as due and payable, as an amend- ment to the charter was accepted by the company by issuing and selling the boiids and executing the mortgage to secure their payment as authorized by the amend- ment. Newport &^ C. Bridge Co. v. Douglass, 12 Bush (Ay.) 673, 18 Am. Rj: Rep. 221. 'i M m 663 BONDS, 25-28. I i t i i i i 1 '.■':■ j i : :1 •■ •a \ i ^t I rl i. i ' !4i 1 ,, i 25. Illegality.— A board of county com- missioners, without being authorized by law, issued to a company orders on the couDty treasury for the purpose of aiding in build- ing its road, and for the orders received in- come bonds of the compauy. The orders were not applied to the purpose for which they were issued ; but before they were paid, the commissioners took the personal bond of the directors, conditioned that, whereas the orders had been issued to enable the company to complete its road, and they had been otherwise used, without so doing, the bond should be void !f the road was finished in a specified time, and then paid tiie orders as they afterward became due. //M, that the orders, having been issued without au- thority, and in violation of the constitution and laws of the state, were illegal and void ; that the bond of the directors to the com- missioners, having been taken in further- ance of an illegal purpose, was taken in vio- lation of the public policy of the state, and was therefore void; and that, though the con- dition of the bond might be broken, no re- covery could be had thereon, for either the penal sum named therein or the amount paid on the illegal orders. Delaware County Cota'rs V. Andrews, i8 Ohio St. 49. 26. Invalidity cured by statute.— An act was passed by the legislature of Quebec (37 Vic. ch. 23) limiting the issue of bonds by the L. & K. Ry. to ^^300,000; ;£ 1 00,000 to be issued at once, ;£ 100,000 when forty-five miles of the road had been completed and in running order, as certified by the government inspecting engineer, and the remaining ;^ioo,ooo as soon as thirty ad ditional miles should have been completed In 1875, by the act 39 Vic. ch. 57, the leg islature modified the condition to be ful filled before the third issue could be made, the preamble of which act declared that " Whereas it appears that, a total length of forty-five miles of the company's Jine having been completed, the first and second issue each of / 100,000 of the company's deben- tures have been made." Held, that the effect of this act was to make the bonds therein mentioned valid and binding on the company although the conditions precedent specified in 37 Vic. ch. 23 might not have been fulfilled when they were issued, and although it was in fact shown that only forty-three and one-half miles of the road had been completed when the second issue of £r 00,000 was made. Quebec v. Quebec C. R. Co., 10 Can, Sup. Ct. 563.— Quoting In re Bagnalstown & W. R. Co., L. R. 4 Ir. Eq. 526 ; In re Cork & Y. R. Co., 21 L. T. 738. 27. Incomplete bondH, generally. — A railroad company issued its bonds, which were incomplete by reason of not having the certificate of a certain trust com- pany thereon, and not having the seal of the railroad company; in this condition tiiey were stolen, and the certificate and seal forged thereto, and they subsequently passed into the hands of the plaintiffs, who were bona- fide purchasers for value. Held, that the company was not bound thereby. Maas v. Missouri. K. (S- T. R. Co., 1 1 Hun i^N, Y.) 8. 28. filling blanks. — A railroad company issued its bonds payable in blank, and delivered them to a citizen of the state. After several transfers, they cami into the hands of plaintitT, a citizen of anc .ner state. Held, that he had a ri<>ht to fill the blank by inserting his own name as payee, and to sue thereon in the United States circuit court on account of diverse citizenship. White v. Vermont 6- M. R. Co., 21 How. {U. S.) 575. Explained in Brainerd v. New York & H. R. Co., 25 N. Y. 496. Quoted in Beaver County V. Armstrong, 44 Pa. St. 63. Re- viewed IN Brainerd v. New York & H. R. Co., 10 Bosw. (N. Y.) 332. A railroad company issued bonds in all respects complete and perfect instruments, except that they were issued with the name of the payee blank. Subsequently they were ratified and confirmed by an act of the leg- islature. Held, that a holder of such bonds might sue thereon in his own naii7e. ' ' .- pin v. Vermont &- M. R. Co., 8 Gra^ . i,v 57S- A railroad company issued, honds knowledging "the receipt of $ioc<.> ..i , and in consideration thereof the railroad company promise and agree to pay or assigns the sum of $1000." A complaint in an action thereon averred that " the corpora- tion received the money from some person unknown to the plaintiff and delivered the bond to such person for the purpose and with the intent that the same should be as- signable and transferable by delivery from hand to hand without other writing; that before its maturity it came lawfully into the possession of the plaintiff for value, and that he is the owner and holder." Held, that the complaint was good on demurrer, as it was lawful for any holder to fill his BONDS, 30-31. 668 name in the blank as payee. Hubbard v. New York «S- H. R. Co., 36 Barb. {N. Y.) 286, 14 Abb. Pr. 275, Railroad bonds were issued for a certain amount sterling, if payable in London, or for a certain number of dollars, if payable at certain designated cities in the United States, with coupons for interest to corre- spond. They recited that the president of the company was authorized by indorsement to fix the place of payment ; but the presi- dent indorsed them, " I hereby agree that the within bond and interest-coupons thereto attached shall be payable in " Held: (i) that the bonds were not ne- gotiable, not being made payable at a place certain; (2) that the bonds having been stolen and come into the hands of an inno- cent purchaser for value, such purchaser had no authority to fill the blank so as to desig- nate a place of payment, but would hold the bonds subject to the defects in title caused by the manner in which they had been put in circulation. Jackson v. Vtcksburg, S. &* T. R. Co., 2 Woods {U.S.)\\\. Bonds of a railroad corporation, which were conditioned for the payment of either of two specified kinds anfl amounts of na- tional currency, to be determined by the place to be fixed for their payment ; which contained a clause authorizing the president of the corporation to fix by his indorsement such place of payment ; and which had been indorsed in blank by the president, were stolen while still in the possession of the corporation — held, that a bona-fide holder was not authorized to fill the blank, and that he acquired and could convey no title to the bonds. Ledwich v. McKim, 53 N. Y. 307 ; affirming i J. &* S. 304. 29. Altered bonds.— Where negoti- able bonds which form part of a large issue by a railroad company are stolen, and the numbers altered, and they are purchased in good faith before maturity and for value, the original owner cannot recover while the bonds are outstanding in the hands of the purchaser. Wylie v. Missouri Pac. R. Co., 43 Am. &* Eng. R. Cas. 431, 41 Fed. Rep. 623. The numbers of bonds which form part of a large issue by a railroad company, in which the numbers only serve the collateral purpose of protection and convenience, and do not directly or indirectly enter into the tenor of the contract, are not material ; and where negotiable bonds are stolen and the numbers are altered, and the bonds are afterward sold to a bona-fide purchaser for value, such alteration does not affect the validity in the hands of the purchaser. Wylie V. Missouri Pac. R. Co., 43 Am. &» Eng. R. Cas. 431, 41 Fed. Rep. 623. 30. Over-issue. — Where a railroad company had contracted that it would not issue its first-mortgage bonds in excess of (io,ooo per mile of completed road, but, subsequent to the sale of its first-mortgage bonds to that extent, it did issue its bonds in excess of such an amount— Aeld, that such over-issue was void as against the holders of the bonds regularly issued to the extent limited, none of the holders of such over- issue being innocent purchasers for value. Union Trust Co. v. Nevada &» O. R. Co., 17 Am. &* Eng. R. Cas. 207, 20 Fed. Rep. 80, 10 Sawy. {U. S.) 122. A railroad company executed a mortgage to secure a certain number of bonds, each bond of the series to be numbered. Several bonds were issued above the number desig- nated, but all were indorsed and certified alike. Held, that the numbering of the bonds was only a matter of convenience and did not affect their validity ; that those above the designated number, in the hands of bona-fide holders for value, were of equal validity with the others; and that upon a foreclosure, if the railroad property did not sell for enough to pay all, the whole issue should be paid pro rata. Stanton v. Ala- bama &• C. R. Co., 2 Woods {U. S.) 523.— Applied in McLane v. Placerville & S. V. R. Co., 26 Am. & Eng. R, Cas. 404, 66 Cal. 606. IV. BI0HT8 OF PURCHASEB8 ADD E0IDEE8. I. Rights of Bondholders as Such. 31. In general.*— Each bondholder is brought into contract relations with his co- bondholders, and his absolute rights in re- spect to the procedure for the collection of the principal or interest are limited by the provisions of tne trust deed and the pecu- liar nature of the security. Guilford v. Minneapolis, S. St. M. &* A. R. Co., ^i Am. &* Eng. R. Cas. 98, 48 Minn. 560, 51 N W. Rep. 658. Where a railroad company issues bonds under an act giving the holder the right to * Rights of bondholders purchasing bonds un- der fraudulent prospectus, see 33 Am. & Eng. R. Cas. 32, adstr. w m ■ ii ■ m Ii 1.V6 664 BONDS, ;ia. ili:l vote for directors, but containing nothing tu prohibit a consolidation with another road, the holder of such bonds will be deemed to have taken them subject to the contin- gency of such consolidation, and cannot complain if it occurs. (Herrick, J., dis- sents), //ari V. Ogdensburg &* L, C, R. Co., 52 A'; Y. S. R. 799. Notwithstanding 7 & 8 Vic. ch. 85, § 19, which imposes penalties on a company for giving loan notes or securities, the holders of instruments under the seal of a railway company, given with the knowledge of the shareholders, and acknowledging money to be due from the company (called Lloyd's bonds), have a valid claim against the assets of the company so far as it has had the benefit of the money. Cork &* Y. R. Co. in re Overend, Gurnet Sr* Co. ex parte, L. R. 4 Ch. 748. 39 L.J, Ch. 277, 21 L. T. 735.— Criticised in In re National P. B. B. Soc. e.x parte Williamson, L. R. 5 Ch. 309, 22 L. T. 284, 18 W. R. 388. So long as a company is a going concern debenture-holders are not entitled to inter- fere with the directors in dealing with the assets in the ordinary course of business. If there is a default in payment of principal or interest the remedy is by appointment of a receiver. Phelps v. St. Catharines &^ N. C. R. Co., 46 A/n. &* Etig. R. Cas. 336, 19 Ont. 501.— Quoting Gardner v. London, C. & D. R. Co., L. R. 2 Ch. 217; In re Panama, N. Z. & A. R. Mail Co., L. R. 5 Ch. 318. Reviewing Simpson v. Ottawa & P. R.Co., I Clian. Cham. 126; Peto v, Welland R. Co., 9 Grant Ch. 455. A mortgage bondholder of a railroad company entered into an agreement to ex- change his bonds for lands that the com- pany had acquired by a grant from the government, the company covenanting to warrant and defend the title ; subsequently another company succeeded to the rights in the property of the former, becoming lia- ble for all of its debts. Held, that such bondholder could maintain an action on the covenant against the succeeding rail- road company for being evicted from the lands. Wood v. Dubuque &• S. C. R. Co., 28 Fed. Rep. 910. A railroad company issued its bonds to run for a term of thirty years, and after- ward made an arrangement with another company for the operation of the road, by which it was to retain a certain share of its net earnings as a fund for the payment of such bond.s, the contract to run for thirty years, or for a time sufficient to accumulate a fund to pay of! tlie whole of the bunds, and such agreement was indorsed un the bonds. Held, that the company had not the riglit to call in the bonds in a shorter time than thirty years, and pay them off, upon having the money to do so. Chicago &* I. R. Co. V. Pvne, 30 Fed. Rep. 86. The first- and second-mortgage bond- holders of the Vermont & Canada R. Co., having elected to avail themselves uf an authority given for their benefit, and at public meetings chosen a committee to rep- resent them in matters appertaining to the management of the property, are all bound by the acts of said committee within the scope of its authority. The issuing of loans by the receivers and managers, as such, for the benefit and conservation of the prop- erty, was a matter within the scope of its authority to advise with the receivers and managers about, and assent to. Langdon v. Vermont &* C. R. Co., 4 Am. &• Eng. R. Cas. 33, 53 Vt. 228. A Spanish railway company issued bonds charged on their railway. Owing to delay in realizing the bonds it became impossible to carry out the undertaking. At the suit of a minority of bondholders the court ad- ministered the unspent part of the proceeds of such bonds in the hands of English trustees, on the footing that such funds ought to be applied, in the first place, in saving and realizing the property charged, and then be distributed firo rata among the bondholders, and that interest on and am- ortization of the bonds should cease from the date of the judgment. Collingham v. Sloper, SAAm. St. L. R. Co., 36 Am. (S- Eng. R. Cas. 227, 148 Mass. 411, 19 A^, £. Rep. 337, i L. R. A. 7^7. A bill will not lie in favor of the creditors of such company to compel the subscrip- tions to the bonds to be applied on their claims; and the fact that such debenture bonds were issued to enable the company to complete its road creates no trust in favor of creditors for supplies furnished in its ccmstructlon. Pei 'Hon v. Toledo, C. S^ Si. L. R. Co., 36 Am. is Eng. R. Cas. 227, 148 Mass. 411, ig JV. E. Rep. 337, i L, R. A. 787. Massachusetts Pub. St. ch. 151, § 2, cl. 11, giving a remedy in equity ♦o creditors, to reach "any property, right, title, or interest, legal or equitable," of a debtor, does not apply to such contracts between the sub- scribers to the bonds and the corporation, since the contract is executory on both sides and is not assignable by cither party. Pettibone v. Toledo, C. &• St. L. R. Co., 36 Am. &* Eng. R. Cas. 227, 148 Mass. 411, 19 N. E. Rep. 337, I L. R. A. 787. 35. Bondholder's right t^ sue, generally."* — The owner of corporate bonds who has a lien upon the lands of the corporation to secure payment of such bonds has as much interest in the subject- matter as a stockholder, and may maintain a suit to prevent another corporation from obtaining the same land by the wrongful use of the name of the corporation whose bonds he holds. Newby v. Oregon C. R. Co., I Sawy. {U. S.) 63. 30. Bight to sue for an account- ing. — When money applicable to the pay- ment of mortgage bonds of a railroad com- pany has come to the hands of the trustees for the bondholders, each holder at that time becomes immediately entitled to the share of the money applicable to his bond, and can immediately recover the same. Dwight V. Smith, 13 Fed. Rep. 50. The question whether bondholders who acquired their bonds after money applicable to the bonds accrued in the hands of the trustees are entitled to share in that money, depends upon the nature of the right and of the transaction by which they acquired the bonds. Dwight v. Smith, 13 Fed. Rep. 50. Where a railroad company issues its bonds for a corporate debt, and mortgages its property to trustees, money coming to the hands of the trustees is security for that debt, and when the debt passes, the security passes also, without reference to when hold- ers acquire their bonds ; and when the trus- tees have funds in their hands, after satisfy- ing prior liens, the bondholders are entitled * See post, 51-64. ■?? I :ir 11 w lli' I! I'M' ii 1 f ..■. . sTs. r-' ' '"^ 1 I :|K fe'fi 666 HONDS, 37. to have it npplieci to the discliarj^c of their bonds and intcest. D^vighl v. Smit/t, 13 Fed. Rep. 50. A railroad corporation, defendant, issued certain income bonds secured by mortgage on its road. Each of said bonds contained a covenant for the payment of interest semiannually out of the earnings of the road, followed by a proviso to the eflfect that no more interest should be paid than should be certified by defendant's " board of directors, for the time being, to have been by said corporation earned over and above all expenses, including necessary repairs, during six months ending one month before such time fixed for such half-yearly pay- ments, and theretofore to have accumulated during the current year; and in default of said certificates no interest shall be paya- ble." In an action by holders of a portion of said bonds for an accounting, etc. — held, that no trust-relation between the bond- holders and the company authorizing an accounting was created by the contract; that the designation of a fund out of which the interest was to be paid did not operate as an equitable assignment of the fund for the benefit of the bondholders, or create an equitable lien thereon in their favor, so as to constitute the surplus earnings a trust fund ; that until there was a surplus beyond what was required for expenses and neces- sary repairs, ascertained as provided in the contract, the company remained the abso- lute owner of the fund, and the bondholders acquired no title, legal or equitable, thereto ; and that, so long as the company remained solvent, while a breach of the contract ren- dered it liable to the bondholders, the only remedies left open to them were such as the law affords for a breach of contract in other cases. Thomas v. New York corporation cannot obtain an injunction to restrain the directors thereof from sacrificing its inter- ests to another corporation, where the * Injunction by income bondholders to re- strain a misapplication of funds, see 36 4u. & Eng. R. Cas. 339, abstr. company is solvent and abundantly capable of responding in damages to the complain- ant. Matthews v. Murchison, 9 Am. &* Eng, R. Cas. 693, 15 Fed. Rep. 691. Where a suit is brought at the instance of income-mortgage bondholders, alleging that the board of directors of the corporation have fraudulently failed to set apart the net earnings of the road for the payment of in- terest, no relief can be had in such action if the complainant fails to show fraud on the part of the directors, even though it appears that the directors had erroneously diverted the income to other purposes. Spies v. Chicago &* E. I. R. Co., 40 Am. &* Eng. R. Cas. 401, 40 Fed. Rep. 34. A railway income mortgage provided that the board of directors should deduct from the gross income the necessary oper- ating expenses and betterments required to maintain the road in first-class condi- tion, and declared that, if the board of directors should adjudge that nonet income had been realized during the year applicable to the payment of interest on the mortgage bonds, they should thereupon enter a resolu- tion to that eflfect on the journal of their pro- ceedings, and that the adjudication should be final and conclusive as an award, and should operate as a bar against any demand by any bondholder for interest for that year, ffe/d, that the bondholders were entitled to have an honest eflfort on the part of the directors to ascertain the net earnings of the railroad, and that the mere passing of a resolution that no income has been earned, without an attempt to ascertain the fact, was not a com- pliance with the terms of the contract. spies V. Chicago &• E. I. R. Co., 40 Am. &* Eng. R. Cas. 401, 40 Fed. Rep. 34. Where the owner of railroad bonds sues in his own behalf and that of other bond- holders to restrain a judgment-creditor from levying on the property of the company until overdue interest is paid on the bonds, it is no objection to a continuance of the injunction that some of the bonds had been pledged by him to other persons as col- lateral security. Butler v. Rahm, 46 Md. 541, 18 Am. Ry. Rep. 86. Bondholders of a corporation of the same class cannot take advantage of the fact that directors have issued a large number of shares to themselves at a discount, where the transaction is not ultra vires, and the corporation itself does not complain. If the directors abuse their power complaint must ' if I hi H BONDS, JJM, JJJ). (JOT be made by the corporation or its torpora- tors. Bank of Toronto v. Cobourg, P. &* M. R. Co., \oOnt. 376. 38. ICiKhtH of holder who is a pledgee. — A pledgee of certain bonds claimed that the pledge had been forec'osed by sale at auction, and that through su h sale he became the owner ; the terms of th'. sale, or whether before sale there had beer a demand of payment or notice to redeeti, did not appear. Held, that, as no right to sell was shown, the holder of the bonds must still be treated as pledgee. Duncomb v. New York, H. &* N. K. Co., 4 Am. &^ Eng. R. Cus. 293, 84 yV. V. 190 ; reversing liHun 291. D. & B. contracted with the M. & K. R., one of the defendants, to construct its rail- road for, among other things, $40,000 cash, to be paid in monthly instalments by the N. & L. R., another defendant, who had promised to loan that sum to the M. & K. R. on its notes and securities agreed upon and delivered. The N. & L. R. exacted from D. & B., as a condition of payingthe money, double the amount of bonds in the M. & K. R., which D. & B. deposited with the N. A: L. R., and subsequently assigned to the plaintiffs as security for money advanced by them to D. & B. to aid in the construction of the railroad. After the insolvency of D. &B.,and without the knowledge or con- sent of B. or of the plaintiffs, D. assigned the bonds to the N. &. L. R. In a suit for the recovery of the bonds — held, that the N. & L. R. had no title to them against the claim of the plaintiffs, to whom they should be delivered. Hale v. Nash ua &• L. R, Co., 60 N. H. 333. 39. Surrender of bouds and accept- ance of new bonds.— In an accounting under a railroad mortgage, in which pro- vision is made for retiring a series of second- income bonds and issuing, in exchange, new boads which are to be held by a trust com- pany until all the second-income bonds are retired, a bondholder declining to sur- render his bonds is not entitle I to claim as interest more of the income than his share would have been had there been no sur- render of the bonds. Barry v. Missouri, K. 5- T. R. Co., 36 Am. 5- Eng. R. Cas. 332, 34 Fed. Rep. 829. In ascertaining income applicable to the payment of interest, an allowance made by the n -^rtgagor company to a connecting road for a division of earnings was under ilic peculiar facts and circumstances of the c.ise rejected. Barry v. Missouri, K. S. J). Co. V. Shenandoah Valley R. Co., 43 Aw. Sr* Eng. R. Cas. 356, 33 IV. Va. 761, 11 S. E. Rep. 58. 40.CuiiverMluiiofbuiidHiiitoNtu('k.* — Where railroad bonds are issued with a privilege to holders to have them exchanged for stock at any time on or before their ma- turity, a holder forfeits his right to ex- change them for stock by a failure to pre- sent them on or before maturity. Chaffet V. Middlesex R. Co., 146 Mass. 224, 6 A'. Eng. Rep. 59, 16 A'. E. Rep. 34. Where railroad bonds were payable in money or convertible into stock "at matur- ity," at the option of the holder, and they matured on Sunday, a presentation for the purpose of a conversion on the preceding Saturday at 3.10 o'clock r.M. is seasonable, though the business hours of the company's office closed at 3 o'clock. Chaffee v. Mid- dlesex R. Co., 146 Mass. 224, 6 A'. Eng, Rep. 59, 16 A'. E. Rep. 34. The holder of a railroad bond, convertible into stock, at his option, at maturity, cannot assign the right of action for a breach of the stipulation for conversion while he retains the bond ; and a petition which fails to state that plainiitf is the holder of the bond for the non-conversion of which he sues is fatally defective. Denney v. Cleveland &> P. R. Co., 28 Ohio St. 108, 14 Am. Ry. Rep. 73. Where, by the terms of a railroad bond, a period was fixed within which it might be converted into stock at the option of the holder — held, that an agreement for the ex- tension of time of payment before maturity of the bond did not extend the right of con- version after the time limited. Muhlenberg V. Philadelphia 6- R. R. Co., 47 Pa. St. 16. A decree in a railroad foreclosure suit provided that where bondholders became purchasers of the property they might ex- change their bonds for stock if they chose to do so. //eld, that the choice of making the exchange must be exercised before the property is conveyed to those who have de- cided to become purchasers and make the exchange, and that this is so though a bond- holder was not aware of the legal proceed- ings, and had overlooked the fact of his owning bonds until after the conveyance, Landis v. Western Pa. R. Co., 133 Pa. St. 579, 26 IV. N. C. 64, 19 All. Rep. 556. * See ante, 8. BONUS, 41,42. 6G0 l)unds had . r. Sf S. :o., 43 Am. 761, II S. iicd with n cxchan;;cd L- their ina- jilt to ex- ile to prc- Chaffe* 124. 6 A'. payable in 'at matur- r, and tlicy ion for tlie preceding seasonable, company's 'V.) 673, 18 Am. Ky. Rep. 221. A railroad company issued its bonds, providing for a sinking fund for their redemption, with a right to redeem a cer- tain number each year, to be determined on • Provision in bonds that railway shall have option to pay Interest in scrip. When option must be exercised. Demand by t)onaholders, see 33 Am. & F.ng. R. Cas. 55 abstr. a date fixed by drawings by lot, and that in a ceiiain time after such drawing the prin- cipal of the bonds so drawn should be payable, at the option of ilie holders, with any interes-t unpaid, and that thereafter the interest thereon sliould cease. Held, that where bonds were so drawn and not sur- rendered foi payment the interest thereon ceased; that the provision that the bonds when so drawn should be payable "at the option of the holders " only meant that btmdholders had a right toietain possession of the bonds, but that if tiicy did so they could draw no interest. Henry v. Syracuse, G. Sr* C. R. Co., 24 .V. V. S. R. 21, 25 /. 6- S. 69, 5 A^. }'. Supp. 437. A contract, by designating a fund out of which interest is to be paid, does not ope- ._ as an equitable assignment of the fund to the bond creditors or create an equitable lien thereon in their favor, so that when any sum has been earned applicable to the pay- ment of interest it should be constituted a trust fund in the hands of the company for the benefit of the bondholders; but they acquire no title, legal or equitable, to the fund itself. Thomas v. New Vorf: &» G. L. R. Co., 54 N. Y. S, R. 498 ; affirming 47 A'. V. S. R. 250. A board of directors are bound to act in good faith, but any expenditures incurred which, by fair construction, come within the permitted charges are conclusive upon the bondholders. It is for the board to de- termine, in the first instance, what repairs are necessary ; and a mistake in judgment as to the necessity or extent of repairs directed will afford no ground of complaint by the bondholders. Thomas v. Ne^v York 6- G. L. R. Co., 54 N. Y. S. R. 498 ; affirming 47 a; Y. S. R. 250. When interest-coupons of mortgage bonds have been presented and paid at the place of payment with money furnished by a third party, a private arrangement between such third party and the mortgagor that the transaction shall be treated as a purchase of the coupons by the former is not en- forceable against the bondholders. Fidelity I., T.&^ S. D. Co. V. Western Pa. &- S. C. R. Co., 138 Pa. St. 494, 21 All. Rep. 21. 42. Funding: coupons.— Certain rail- road bonds were issued under a statute declaring them a first lien on the company's property, and subsequently a statute was passed postponing the lien and providing for funding past-due coupons for bonds. .'.'■ii.' lip I 670 BONDS, 43. ..! i IK mi Pi' 'r i; i Held, that persons funding under the second act were estopped from claiming a first lien under the original act. Hand v. Savannah &* C. Ji. Co., 17 So. Car. 219. After railroad bonds had been issued and guaranteed by the state under a statute de- claring them a first lien, a further law was passed postponing the lien and providing for a surrender of past-due coupons and accepting bonds in lieu thereof under the second act. Held, that the question whether a holder of such coupons who had exchanged them for bonds was estopped from claiming a prior lien under the original act was one of fact for the jury, with the burden of proof on the one asserting the estoppel. Hand v. Savannah &* C. R. Co., 17 So. Car. 219. A statute provided that holders of parx- due coupons from railroad bonds might exchange them for bonds of the company. Held, that entries in the handwriting of a treasurer of the company, made eleven years before in the regular books of the company, were competent evidence to show who had funded coupons. Hand v. Savan- nah &> C. Ji. Co., 17 .S'^. Car. 219. Where a statute provides for funding past-due coupons by exchanging tiiem for bonds of the company, the mere fact that coupons were funded is not sufficient to show that the persons who did the funding are the same parties who, years afterward, owned bonds, with such certainty as to estop the parties. Hand v. Savannah &• C. R. Co., 17 So. Car. 219. The present owners of bonds may have acquired them prior to 1869 without the coupons, but f afterward, the act of that year did not charge them with notice that the coupons cut off had been funded by perbuns then owning the bonds from which they had been cut. Hand v. Savannah &* C.R. Co., 17 So. Car. 219. 43. Registration of bonds as sbares to enable bolder to vote.— A statute provided that, in the event of interest on railway bonds being due and unpaid, the holders of the bonds " at the next general meeting of the company " should have the right to vote as share- holders, upon having the bonds and any transfers thereof registered as shares. Held, that the words " next general meet- ing " only fixed the earliest time at which bondholders might vote; that no new regis- tration was necessary to entitle a bond- liolder to vote at any subsequent meeting; and that the right to vote extended to all matters that might come before an annual meeting upon which shareholders might vote. Hendrie v. Grand Trunk R. Co., 13 Am. &* Eftg. R. Cas. 62, 2 Onl. 441. And where by amendment to the above statute the right of such bondholders is ex- tended to " special meetings," the right to vote extends to all subjects properly com- ing before such meetings. Hendrie v. Grand Trunk R. Co., 13 Am. &» Eng. R. Cas. 62, 2 Onl. 441. A statute provided that a railway com- pany might enter into an agreement with any otlier company for the leasing or work- ing of its road upon the consent of two- thirds of its shareholders. Held, that the term " shareholders " must be understood to include not only shareholders proper, but also bondholders who had registered, under the statute, for the purpose of voting the same as shareholders, on account, of interest on the bonds being due and un- paid, including the right to vote at a special meeting called to obtain the consent of the shareholders to such lease or working agree- ment. Hendrie v. Grand Trunk R. Co., 13 Am. &* Eng. R. Cas. 62, 2 Ont. 441. A mandamus will issue to compel a regis- tration of railway bonds, under 38 Vic. ch. 56, O., in the name of a transferee, without the production or registration of the inter- mediate transfers. In re Osier v. Toronto, G. C R. Co., 29 Pa. St. 1 54. A railroad company executed a mortgage to secure its bonds upon " all its property, real and personal, and all rights and inter- ests therein now owned and hereafter to be acquired." A foreclosure decree conveying the property to complainant mentioned the real, personal, and mixed property of the company, and " any and all other property, real, personal, or mixed, belonging to the corporation." Complainant claimed to be the owner of certain municipal aid bonds is- sued to the company and held by it under the mortgage and foreclosure. The condi- tions upon which the bonds were issued were not complied with by the railroad com- pany, and the municipality resisted payment. Held, that complainant was not a bona-fide BONDS, 47. 673 holder of the bonds and could not sue and recover thereon. Foote v. Mt. Pleasant, i McCrary{U. 5.) loi. By statute, the charter of a railway com- pany was extended to enable it to complete its road ; and it was authorized to issue its bonds, registered or coupon, for $1,200,000, and sell them at less than par, and secure them by mortgage or deed of trust upon all the property and franchises of the company. By the same act it was provided that, un- less the road should be completed to a certain point by a certain day, the company should forfeit to the state their corporate [ranchises and rights, together with their road-track and roadbed, and all works and materials thereon, or other property; the state to hold the same as trustee for certain parties named. The company accepted the charter, issued $480,000 of bonds, and exe- cuted a deed of trust upon its property and franchises to secure them. The company failed to complete the road to the point fixed by the time prescribed, or, as it would seem, to expend any money in its construc- tion ; and the state proceeded to declare the charter forfeited, and to take possession of the road and the other property and franchises of the company, and to turn it all over to the cestuis que trustent, who or- ganized another company. Persons, one of whom was the president of the road, and all of whom were the principals in the road when the act was passed, or were connected with them, claimed that they were the holders of $323,500 of the bonds issued, and filed their bill to enforce the deed of trust. Held: (i) that under the provisions of the forfeiture of the charter the state took the property and franchises of the company free from the trust ; (2) that upon the failure of the company to complete the road to the point fixed by the day prescribed, the for- feiture became absolute and complete; and that, the state having entered and elected to hold under the forfeiture, no inquisif'on, or judicial proceedings, or inquest, or find- ing of any kind was required to consummate the forfeiture; (3) that, from the relations of these plaintiffs to the company and to each other, they must be held to have had notice of the terms of the act which authorized the execution of the deed of trust under which they claim ; (4) that, as no money had been expended on the road, or, as they claimed, paid for interest, the strong presumption was that the company received no money 1 D. R D.— 43. for the bonds; and (5) that the plaintiffs were not, therefore, innocent purchasers for value and holders of the bonds without notice of the provisions of the act. Silliman V. Fredericksburg, O. 6t* C. R. Co., 27 Gratl. (Va.) 119, 17 Am. Ry. Rep. 157. 47. The protection accorded them.* — A citizen of the United States purchasing the bonds of a railroad organized under a foreign government takes them sub- ject to the policy of that government, and is bound by its statutes. This is the case though the bonds are payable in the United States, and though their payment could be enforced by tiie courts of this country. Canada S. R. Co. v. Gebhard, 14 Am. &* Eng. R. Cas. 581, 109 U. S. 527, 3 Sup. Ct. Rep. 363. — Quoted in St. Albans v. National Car Co., 57 Vt. 68. A bona-fide purchaser for value, without notice, of railroad bonds payable to bearer, which had been stolen, has a good title as against the former owner. Carpenter v. Rommel, 5 Phila. {Pa.) 34. Where railroad bonds, with coupon at- tached, which were transferable by delivery, are stolen, a subsequent bona-fide purchaser before they are due, paying market value therefor, will have a good title as to the bonds and all interest coupons which are not due, but not as to those which are past- due. Gilbough v. Norfolk &• P. R. Co., I Hughes {U. S.) 410. Coupon bonds of a railroad company pay- able to bearer pass by delivery ; and a bona- fide purchaser of them before maturity takes them freed from any equities that may have been set up against the original holders of them. The burden of proof is on him who assails the bona fides of such purchase. Kneeland v. Lawrence, 46 Am. &• Eng. R. Cas. 319, 140 U. S. 209, II Sup. Ct. Rep. 786. Ftnneganv. Lee, 18 How. Pr. {N. K.) 186. Bona-fide holders of railroad bonds, exe- cuted in due form and by the proper officers, cannot be prejudiced by the fact that the mortgage given to secure the same was executed out of the state, or by virtue of a resolution of its directors, at a meeting held out of the state. The company and its privies are bound thereby. Galveston, H. &* H. R. Co. V. Cowdrey, 11 Wall. {U. S.) 459- * Bona-fide purchasers of negotiable bonds before maturity acquire title, see note, 46 Am. & Eng. >?. Cas. 322. m\ '-.x-^ imn SI' 674 BONDS, 48. IS- mil The purchaser of negotiable railroad bonds before maturity, without notice, is not bound by a judgment against his vendor declaring the bonds void. Enfield v. Jordan, 1 19 U. S. 680, 7 Sup. a. Rep. 358. The purchasers of bonds sold to satisfy debts for which they were held as collateral are vested with title as owners of such bonds. Newport &* C. Bridge Co. v. Doug- lass, 12 Bush {Ky.) 673, liAm. By. Rep. 221. As against a bona-fide holder of bonds issued by a railroad corporation, it may not be shown that restrictions imposed by its charter on its power to issue bonds were violated, as such corporations, in general, have power to issue bonds. Ellsworth v. St. Louis, A. &> T. H. R. Co., 98 N. K 553 ; affirming 33 Hun 7. — Following Woods v. Lawrence County, i Black (U. S.) 386; Mercer County v. Hackett, i Wall. (U. S.) 83. Where railroad bonds are issued with a covenant in the mortgage securing them that they are to be sold and the proceeds applied to improving the road, but they are sold under a different agreement and the proceeds applied to other purposes, neither the purchasers nor those holding under tliem without actual knowledge of the covenant can enforce specific performance of its provisions, and this is so even where the mortgage contains a provision that it shall be for the benefit of all persons who become holders or owners of the bonds. Belden v. Burke, 20 N. V. Supp. 320. It is no defense to an action on the bonds of a railroad company that the defendant's books do not show that any value had been received for them, and that the bonds had been delivered to the president, who had made no return of the proceeds. The bonds being in form to pass by delivery, a bona-fide purchaser had nothing to do with the application of the money paid for them. Philadelphia t paid at places the them for a le is sufii- juiry as to sale of the - N. E. R. s are past ds are sold r a holder m in good McLane v. n. &* Eng, ep. 748. rage bonds the road, Iway com* made to :he bonds, Dupons at- inquiry by irged with deed, and ;in. Guil- A. R. Co., nn. 560, 51 which put ind satisfy Ice further C. R. Co., trizing the o consoli- rchaser of iving con- templated at the time of the purchase a probable consolidation. Tysen v. Wabash R. Co., 13 Am. . > 2 Am. & Eng. R. Cas. 374, 17 Fed. - o. a The right to sue generally.*- Where a railroad company issues negotiable bonds payable to bearer, and they are in- dorsed or guaranteed by another company before the bonds are put in circulation, no disability of the bearer to sue the assignee arises under the judiciary act of September 24, 1789, § II. Codman v. Vermont «S- C. R. Co., 17 Blatchf. (U. S.) i. It is immaterial whether a railroad mort- *See «»«//■, 36-37. gage secures interest on its bonds by a lien upon the lands of the conipiiny or by a lien upon its earnings, or by a lien upon both, or whether it is not secured at all by the com- pany. If there is an agreement to pay in- terest and it is not paid, there is a breach of the bond for which the holder can main- tain an action. Marlor v. Texas &- /'. A'. Co., 17 Am.&'Eng.R. Cas. 215, 19 Fed. Rep. 867. Where a railroad company issues bonds with a provision in the mortgage securing them, that if the net earnings of the road are not sufficient to pay interest on the bonds the company may in its option issue scrip in lieu thereof, the bondholder's right of action is prima facie perfect upon proof of nonpayment of the interest on the presentment of his bond at the place where the interest is made payable. It then devolves upon the company to show the existence of the f?ct whicli authorized it to issue the scrip, and then the exercise of the option. Marlor v. Texas &• P. R. Co., 17 Am. &* Eng. R. Cas. 215, 19 Fed. Rep. 867. Where the bondholders of a railroad hold stock of the company as collateral security for the payment of the bonds, and the road is afterward leased, such bondhold- ers cannot maintain a bill in equity against the lessors to charge them with the earnings of the road, where there is no charge that the lease is v(;id or voidable as between the lessor and lessee. Gibson v. Richmond &• D. R. Co., 37 Fed. Rep. 743, 2 L. R. A. 467. Where a railway company issues its bonds payable to bearer, with interest-coupons at- tached, and secures them by a mortgage or deed of trust, making them a first lien on the road, a holder may enforce his own lien for bonds or coupons held by him or on be- half of persvons to whom he has transferred coupons. Wright v. Ohio &* M. R. Co., i Disney {Ohio) 465. The holder of railway bonds which con- stitute a privileged claim on the movable property of the company may, for the pro- tection of his rights, proceed against such property by an attachment in revendication in the nature of a saisie conservatoire. Wyatt V. Senecal, 4 Queb. L. R. 76. A railroad company issued its bonds pa) - able to bearer, with semi-annual interest- coupons, secured by a mortgage upon the income from the operation of its road and from the sale of its lands, and subsequently liil BONDS, 53-50. GT7 the road was consolidated with another. Held, that holders of the bonds had a spe- cific lien upon the property, and might file a bill against the consolidated company to enforce payment. Rutten v. Union Pac. R. Co., 12 Am. &^ Eng. R. Cas. 374, 17 Fed. Rep. 480.— Di'TiNGUisHiNG Walscr z*. Selig- man, 13 Fed. Rep. 415; Jones v. Green, i Wall. (,U. S.) 330; Wliipple z/. Union Pac. R. Co., 28 Kan. 474; Hayward v. Andrews, 106 U. S. 672, I Sup. Ct. Rep. 544; New York G. & 1. Co. v. Memphis Water Co., 107 U. S. 205, 2 Sup. Ct. Rep. 279. A railroad company issued its bonds pay- able in blank and secured them by a mort- gage. Subsequently the legislature passed a law ratifying and confirming the bonds. Ne/d, that any holder might sue thereon in his own name. Chapin v. Vermont &* M. R. Co., 8 Gray (Mass.) 575. The defendant company gave a bond, to the plaintiff, reciting that the 'atter had agreed to lend it ;^2 5,000, to assist in con- structing its railway, and conditioned that the company should not expend the loan or begin to construct its road until the whole sum necessary to complete it from Wood- stock to Port Dover should be obtained. /Md, that there was nothing in the 19 Vic. ch. 74 to relieve defendant from liability for a previous breach of this condition. Town Council of Woodstock v. Woodstock 6f L.E, R. Co., \6 U.C. Q. B. 146. 53. Right of one holder to sue for benefit of all. — One holder of part of the bonds of a railroad company may file a bill in his own name, but for the use and benefit of himself and all other bondholders, to compel payment of the bonds. Mason v. York <, that the right to recover was not affected by the fact that the notary protesting the bonds did not have them to present when the interest coupons were presented and payment demanded. Codman v. Vermont &* C. R. Co., 17 Blatchf. {U.ii.)i. In an action by the holder of certain bonds issued by a railroad company against the trustee named in a mortgage of the road and franchises securing the bonds, and against another company holding title to the mortgaged properly, among otiier things, to have the property charged with the lien of the mortgage, and to recover the amount of the bonds; which action was based upon allegations of breach of trust on the part of the trustee in transferring title to the mortgaged property, which he had acquired by purchase under a fore- closure sale, it appeared that plaintiff had acquiesced in and ratified the acts of the trustee complained of — held, that plaintiff was not entitled to have judgment for a proportionate share of the money received by the trustee upon such transfer; and that, having failed to sustain the cause of action stated in the complaint, it was properly dis- missed. Butter field v. Cowing, 112 N. Y. 486. 20 A^. E. Rep. 369. 21 A^. Y. S. R. 500. Plaintiff sued to recover the amount of railway bonds, and the company asked judgment that plaintiff be required to exe- cute a satisfaction or release of the mort- gage given to secure the bonds. Held, that, in order to entitle the company to such sat isfaction piece, it should pay or tender the amount due on the bonds. Roosevelt v. New York 6- H. R. Co., 30 How. Pr. (N. Y.) 226, 45 Barb. 554. A corporation issued bonds with interest- coupons payable semi-annually, and agreed that upon three successive defaults in pay- ment of interest the principal should be- come due. The bonds were secured by a mortgage in which it was provided that the trustees in it should sell the mortgaged property at the request of the holders of bonds of the value of $100,000. Held, that this provision in the mortgage was no de- fense to a suit on the bonds after a breach of their condition. Philadelphia &> B. C. R. Co. V. /ohnson^ 54 Pa. St. 127.— DISTIN- GUISHING Ashhurst v. Montour Iron Co., 35 Pa. St. 30 ; Bradley v, Chester Valley R. Co.. 36 Pa. St. 154. •^T"™i«i' >> nONDS, 58-01. 079 •i 1 58. Replication.— A plea of tender is an admission of liie justice of plaintiiT's claim to the extent of the sum tendered, but to render it valid the money should be brought into court ; but where plaintiff sued on railway bonds and the company set up a tender, a replication thereto tendering an issue is a waiver of the irregularity in not bringing the money into court, and the court will order payment of the amount tendered. Roosevelt v. New York &* H. R. Co., 30 How Pr. {N. Y.) 226, 45 Barb. 554. In an action on a Lloyd's bond issued by a railway company, it pleaded an agreement with the plaintiff that he should pay the bond at maturity and indemnify the com- pany therefrom and from all losses and dam- ages which it might become liable to or be called upon or compelled to pay on account of the nonpayment on such bond. The plaintiff replied that he assigned the bond for value to third parties without notice, and that he was suing as trustee on their behalf. Held, that the replication was a good an- swer to the equitable plea. Dickson v. Swansea Vale &• N. &• B.J. R. Co., 17IV.R. 51, 19 L. T. 346, L. R. 4 Q. B. 44, 38 L. /. Q. B. 17. 69. Amount of recovery— Scaling laws. — Holders of bonds issued during the war of the rebellion, and sold for Confed- erate currency, are only entitled to recover thereon, as against subsequent purchasers of the road, the value of the currency at the time of the purchase with interest thereon. Spence v. Mobile &* M. R. Co. , 79 Ala. 576. In 1862 a North Carolina railroad issued bonds, falling due at different times from 1869 to 1875. In 1865 the state adopted an ordinance relating to contracts during the civil war, and in 1866 a law was passed, as required by the ordinance, fixing the value of Confederate currency in gold on the first day of each month from November, i86i,to April, 1865. Under the law a contract pay- able in " dollars " was presumed to be pay- able in Confederate currency, but this pre- sumption might be rebutted. If found payable in currency the amount was to be " scaled " to the gold value at the time made. Held, that the circumstances attending the execution of the railroad bonds especially the long time they were to run, overcame the presumption that they were payable in Confederate currency, and that the company therefore was not entitled to the benefit of the scaling act, as to the principal and interest. though it was payable semi-annually. At- lantic, T. &* O. R. Co. V. Carolina i\'at. Bank, 19 Wall. (i/. S.) 548. 00. Action for ret^isal to complete purchase. — A party agreed to take five bonds of a railroad company of $1000 each, for which he was to pay $650 for each bond on demand of the secretary, he also to re- ceive five shares of stock for each bond so taken, which bonds were secured by a first mortgage bearing seven per cent interest, payable semi-annually, which mortgage pro- vided that if any of the interest was not paid within ninety days after due, the entire principal and interest should become due. He received and paid for two of the bonds, upon which the company made default in the payment of interest for more than ninety days before it brought suit to recover dam- ages of him for refusing to receive and pay for the other three bonds. Held, that the payment of interest on the bonds was a part of the consideration, and that the failure to pay the interest for ninety days made the bonds become due and payable, and that the party, when sued for not completing his contract, might recoup the amount due on his two bonds against the damages growing out of his refusal to accept and pay for the other three bonds. Galena &^ S. W. R. Co. V. Barrett, 2 Am. &» Eng. R. Cas. 520, 95 ///. 467. — Following Christy w. Ogle, 33 III. 295; Streeterz/. Stroeter, 43 111. 155. 61. Action for rescission on ground of lYaud.— To entitle a party to rescind a contract because he was induced to enter into it by means of false and fraud- ulent representations, he must first return, so far as he may not be prevented from doing so by the act of the defendant, what- ever he has received through the perform- ance of the contract. So, where the pur- chaser of railroad bonds exchanged them for bonds in a reorganized company, he was held not entitled to a rescission for fraudu- lent representations inducing the purchase of the original bonds. Cohen v. Ellis, 52 Hun {N. Y.) 133, 5 N. Y. Supp. 133. After a railroad mortgage securing bonds had been foreclosed, a holder of bonds was induced to exchange them for bonds issued by a reorganized company, at the rate of fifty cents on the dollar of the bonds ex- changed. At the time suit was brought the new bonds had a greater market value than the old ones would have had if they had been retained. Held, that the holder was i i ill G80 HONDS, «iJ,«;i.— BOYCOTTING, 1. If i !H not in a position t<> insist upon n rescission of the contract by whicii he purchased tiie original bonds; and that he could not re- cover the purchase-money paid therefor upon tendering back the new bonds, though there was such fraud in the representations of the seller inducing the purchase as would have entitled him to a rescission if he had retained the original bonds. Co/mu v. £//ts, 52 Nun (iV. V.) 133, 5 N. v. Supp. 133. 62. Suit to enforce surrender 'or cancellation. — Where bonds of a corpo- ration, pledged as security for its debt, were void under § 1753, Rev. St., because issued without its receiving seventy-live per cent of their par value, no action for the surren- der or cancellation thereof could be main- — tained by the corporation, or by a stock- holder in its right, without a tender of the ahiount due to the pledgee. The plaintiffs in this case the corporation and a stock- holder who, as president, had participated in the unlawful issue of the bonds— were in equal wrong with the party to whom they were issued, and were not entitled to relief. Hinckley v. Pfister, 83 Wis. 64, 53 A^. W. Rep. 21. 63. Suits on lost bonds.— The owner of registered railroad bonds was lost on board of a vessel, and the bonds were lost at the same time, and his administrator sued the company to compel it to issue dupli- cate bonds and to recover past-due interest. Held, that the company would be required to do both upon receiving an indemnity bond. Rogers v. Chicago S* N. W, R. Co., 6 Abb. N. Cas. {N. Y.) 253. Certain persons holding ten first-mort- gage bonds and thirty-seven non-mortgage bonds of a railroad corporation, all of which were alleged to have been destroyed, although there was difficulty in establishing the loss, made, through their attorney, with the corporation, an agreement by which, in settlement of their claims, they received interest-fund bonds to the amount of |86oo for their first-mortgage bonds, and state- guaranteed bonds to the amount of $16,000 and interest-fund bonds for I6725 for their non-mortgage bonds ; and upon such bonds they collected interest for four years. The corporation afterward became insolvent, and upon sale realized enough to pay its first- mo: tgage and state-guaranteed bonds in full, but the non-mortgage and interest-fund bonds proved to be worthless. The bond- holders, retaining their state-guaranteed bonds, offered to return their interest-fund bonds of $8600 and to establish their ten lost first-mortgiige bonds, claiming the lien of the first mortgage, and that the substi- tuted bonds were u/lra vires. Held, that the intention of the settlement was payment and not substitution ; and that, for that reason, and because it was a compromise of a doubtful right, made with full knowledge of the facts, and an arrangement which was a unity, the petitioners could not be allowed to establish the ten lost bonds, or to claim for the substituted bonds the lien of the first mortgage. Gibbes v. Greenville S^ C. R. Co., 12 Am. . — to employes as to safety of, see Em- PLovfis, Injuries to, I, 6. BRANCH AND LATERAL ROADS. 1. What 1h a "branch road."— Under a charter authorizing a railroad com- pany "to extend branches into and through any counties that the directors may deem advisable, a road constructed from the junction of the main line of one road with another, but extending in a different direc- tion, is a branch road within the meaning of a provision of the charter authorizing counties to subscribe to the stock of branch roads. Howard County v. Central Nat. Bank, 108 U. S. 314. 2 Sup. Ct. Rep. 689. A short elevated track running from the terminus of a railroad along a public land- ing is a branch road within the meaning of Fa. act of April i, 1868. giving tiie company the right to construct branch railroads. Mc.^boy's Appeal, loj Pa. St. 548.— Quoted IN Volmer v. Schuylkill River E. S. R. Co., 18 Phila. (Pa.) 248 ; Philadelphia z/. Philadel- phia & R. R. Co., 19 Phila. (Pa.) 507. 2. Validity of statutes.— The Pa. act of May 5, 1832, authorizing the construction of lateral railroads to connect private property with public improvements, is con- stitutional. Harvey v. Thomas, 10 Watts (Pa.) 63. Harvey v. Lloyd, 3 Pa. St. 331. — Followed in Shoenberger v. Mulhollan, 8 Pa. St. 1^4.— Hays v. Rtsher, 32 Pa. St. 169. The general railroad act of April 4, 1868, P. L. 62, in so far as it confers powe^ on a railroad company to construct branches from its main line, is not repealed. The act of May 21, 188 1, P. L. 27, has no appli- cation to the power to construct branches conferred by the former act. Volmer' s Ap- peal, lis Pa. •S''- '66, 8 Atl. Rep. 223. 3. I*owvr to <-oii.striict, generally.* — It is unlawful to build any branch roads which have not first been found by a judge of the superior court, upon application and public notice, to be of public convenience and necessity. Shepaug Voting Trust Cases, 60 Conn. 553, 24 Atl. Rep. 32. The mere fact that the building of lateral branch roads may add to the earnings of the main line of a railroad company, or increase its business, will not authorize such corpora- tion to build the same where its charter fails to so provide. Chicago «^ /;'. /. R. Co. V. IViltse, 24 .Im. &^ Eng. R. Cas. 261, 116///. 449, 6 A'. E. Rep. 49.— Followed in Illi- nois C. R.Co. V. Chicago, 138 III. 453. The right of the Elizabetlitown & P. R. Co. to build branch roads is as full and complete as the right to construct the main road itself, and a second subscription of stock in said company by the city of Louisville, for the purpose of building a branch road, is valid ; nor does the express grant to the company of the right to extend its main road to the city of Louisville preclude it from connecting with that city by a branch road. Tyler v. Elisabcthtown &* P. R, Co., i) Bush {ky.) 510. Under a provision in a railway charter authorizing the company " to construct branch roads from the main line to other points or places in the several counties through which said road may pass," the right to construct branches is limited to such as begin and end in the same county. Works V. Junction R. Co., 5 McLean {U. S.) 425. Where a railroad company is chartered to build a road between designated points, with authority to vary the route and change the location of its road, for certain causes named, it is authorized not to disregard the termini named, but only to vary or change its route at intermediate points for the causes named. Works v. Junction R. Co., 5 McLean {U. S.) 425. The right to construct a lateral railroad to a navigable river is not affected by the fact that it would cross an ordinary railroad, as to the portion lying between the railroad and the river; nor does the existence of such ordinary railroad prevent the lateral railroad from appropriating land for a wharf * Rii;ht of company to contract for construc- tion of branches, see 52 Am. & Eno R. Cas. 6, abstr. See also note, 20 Am. & Eni;. R. Cas. 319. w ;lii:' 689 UKANCII AND LATERAL ROADS, 4. m i; i f ! > i ' ' fit-! or landing on the river; nciiiicr docs the fact of crossing an onJiiiary riiilroad destroy the continuity of the latural railroad. //ayj V. Brigi^'s, 3 Piltsb. (Pa.) 504. The N. P. K.Co. not being authorized by its charter utider act of congress to con- struct a brancii line between Tacoma and Gray's Harbor, tlie Tacoma, O. & G. H. R., although constructed and operated by the N. P. R. Co., is net entitled to the benefit of reservations of rights of way in convey- ances made by the latter company. £t7es v. Tacoma, O. &^ G,H. R. Co., 5 Wash. 509, 32 Pac. Rep. 211. A grantee of the N. P. R. Co. is not estopped by the recitals in the deed from denying the right of his grantor to build a branch road, when such branch road is one that the grantor is not legally authorized to construct. Biles v. Tacoma, 0. &* G. H. R. Co., 5 IVasA. 509, 32 Pac. Rep, 211. Permissive words in an act of parliament authorizing a railway company to construct a branch line are not obligatory. Edin- burgh, P. &» D. R. Co. V. Philip, 2 Macg. H. L. Cas. 514, zjur. N. S. 249. A new line made by the defendant com- pany to form a connection between two branch lines on opposite sides of the main line was a railway or a portion of a railway which under 5 & 6 Vic. c. 55, § 4, could not be opened without previous notice to the board of trade. Attorney-General v. Great Western R. Co., L. R. 7 Ch. 767. 4. Power to construct under stat- utes of Penusylvauia.— The power given to a company to build a main line involves the right to build branches and sidings to carry out the purposes of the company's charter. Schofield v. Pennsylvania S. V. R. Co. , 2 Pa. Dist. 57. If the power of constructing branch rail- roads is not conferred upon the company in plain words or by necessary implication it is deemed to be withheld. Philadelphia, W. <^ B. R. Co. V. Philadelphia S^ R. R. Co., I Pa. Dist. 73. Pa. act. of March 29, 1 840 (Lateral Rail- roads) is a supplement to the act of May 5, 1832, is in pari materia with it, and should be so construed. Neither act authorizes the connection of a lateral road, except with a public improvement, railroad, or highway, as enumerated in those acts. Keeling v. Griffin, 56 Pa. St. 305. The Pa. act of April 4, 1868, and the sup- plement thereto of April 28, 1871, relating to the formation of railroad companies, vest in voluntary associations the powers which had previously been giyen by special charters, and applied to railroad companies in the sense in which the term is usually used, but do not authorize the construction of lateral railroads. Edgewood R. Co.'s Ap- pial, 79 Pa. St. 257. The Pa. act of March 17, 1869, § 1, pro- viding that it should be lawful for any rail- road, canal, or slack-water navigation com- pany " to make new feeders," refers only to canal companies, and does not confer upon railroad companies the power to construct brancli roads. Philadelphia, W. 6- B. R. Co. V. Philadelphia y this common- wealth that might become a purchaser should possess, hold, and use the same under the provisions of their act of incorpo- ration ; " and the Pennsylvania company be- came the purchaser. Held, that by virtue of these two acts the company had the same power to construct lateral railroads or brandies on the line purchased from the state that it had on its original line. Dun- can V. Pennsylvania R, Co., 13 Phila. (Pa.) 68. The act of April 10, 1867, P. L. 993, does not extend the branching powers of the Pennsylvania Railroad Company to tiie lines it holds by lease. In view of the previous legislation relative to railroad companies the words " lands, tenements, and property " are not used in a new sense which includes established roads. Pennsyl- vania R. Co.'s Appeal, IIS Pa. St. 514, 5 All. Rep. 872.— Distinguishing Getz's Ap- peal, loW. N. C. 453. The charter of defendant railroad com- pany authorized it to build a railroad be- tween designated points in a city, and a complaint was filed charging that it was about to commence the construction of a railroad about midway between the desig- nated points and build to a navigable river, without complying with the act of 1881 pro- viding that any company chartered under the act of 1868, upon deciding to construct a railroad not exceeding fifteen miles in length, should obtain supplementary articles of incorporation accepting the provisions of article 16 of the constitution of the state. The company answered that it was con- structing, not an extension, but a branch under the act of 1868, § 9. Held, that the company had a right to construct a branch without com plying with the statute, and that an injunction to restrain it from doing so should be refused. Voliner v. Schuylkill River E. S. R. Co., 18 Phila. {Pa) 248.— Quoting McAboy's Appeal, 107 Pa. St. 548. Reviewing Mayor of Pittsburgh v. Pennsylvania R. Co., 48 Pa. St. 355 ; Western Pa. R. Co.'s Appeal, 99 Pa. St. 155. A statute giving a railroad company power to build a road " with power to con- struct such branches as the directors may deem necessary, and to connect all or either of them with any railroad or railroads now constructed, or that may hereafter be con- structed," gives a continuing power to con- struct branch roads, and the time limited for the completion of the railroad has no relation to the building of the branches. Pittsburgh. V. &* C. R. Co. v. Pittsburgh, C. &' S. L. R. Co.. (Pa.) 57 /////. &' Eng. R. Cas. 46. Where a railroad company was given a certain time to complete its road " with one or more tracks, sidings, depots, and appur- tenances," the word " appurtenances " does not comprehend branches, consequently branches cannot be constructed after the expiration of the time thus limited. Pitts- burgh. V. &* C. R. Co. V. Pittsburgh. C. &- S. L. R. Co., (Pa.), 57 Am. &^ Eng. R. Cas. 46. 5. Coniicctiii(( with niiotlicr main line.— Where, by its charter, power is given a railroad company to construct branch or lateral roads, such power includes au- thority to construct a branch line running in the same general direction as the main line; and the fact that the new line will connect the main line with another railroad makes it none the less a branch road. Slant on v Richmond, P\ &* P. R. Co.. 43 Am. &* Eng. R. Cas. 617, 86 Va. 618, 10 S. E. Rep. 925. 6. Witliin city limits.— The construc- tion of a new track further into a city by virtue of an ordinance of the city council, whereby certain provisions were made as to its location and grade, was fully authorized by the act of June 9, 1874 (P. L. 282), en- abling cities to contract with railroad com- panies for the relocating, changing, or elevating of tracks so as to secure the safety of life or property and promote the interests of the municipality. Appeal of the Western Pa. R. Co.,\ Am. &* Eng. R. Cas. 191,99 Pa. St. 155. A provision in the charter of the Louis- ville & Nashville Railroad Company author- izing it to construct lateral- or side-tracks from its main track to terminate on the bank of the Kentucky river, in the city of Frankfort, does not authorize the construc- tion of a lateral- or side-track which does not commence at the main track or termi- nate at the river, and the city had no power to grant a right of way across its streets and through an alley for the construction of such a track— no such power being con- ferred by its charter. Commonwealth v. Frankfort, 92 Ky, 149. One Jessup purchased, under a deed of trust, the road and franchises of the North Missouri Railroad Company ; respondent I ill i;, i, frt! 084 BRANCH AND LATERAL ROADS, 7-10. dfi iiM filed articles of association and became a body corporate, and purchased the North Missouri Railroad and franchises from Jessup. Among these franchises was the right to construct lateral or branch roads to any point. Respondent acquired the right from the city of St. Louis to pass from west to east through the city to the Union depot, and proceeded to construct a branch road from Ferguson station, on the line of said road, to the Union depot in said city, He/d, tiiat it had the right to do tLii, and that the policy of the state — that hI! rail- roads entering a city should find a terminus at one common centre — having been de- clared by the act of March i8, 1871, the state could nol object on the ground that respondent was usurping powers not granted by the state. S/ate ex rel. v. St. Louis, K. C. &' N. R. Co., 3 Mo. App. 180.— Distin- guishing Works V. Junction R. Co., 5 Mc- Lean (U. S.) 425.— Reviewing Pittsburgh V. Pennsylvania R. Co., 48 Pa. St. 355. 7. Extensions of main line. — Where the charter of a r.ilroad company authorizes it to build branches, it may build what is practirally an extension of the main line by beginning at one terminus and building in the same general direction that the main line runs. Atlantic n of a rail- "W.H.Co., al railroads insert, the >d connec- main track, •r empty, to cording to lil on other y, 2 Pittsb. iral lines. ate branch vay.and for is subject that wliere ossing it, it ereof. Rex adjoining 5 across the m " for the and every 3ni they or time give ■ such pur- ly require," construct a rry it under it as a pub- Ht4ghes V. • *- /• 352. landowners es to com- :s that the make an they have on, or yard, in opening the nature ed. BeU\. nd, and lo- purpose of entitled to against a :s a lateral V. Br^gs, rhe acts of t of lateral 1 roads to tter act a •r sfdings, width may be used for those specific purposes. In that event the special additional structures, to- gether with the quantity of ground requi- site fr>r the purpose, should be carefully de- scribed in the petition and order, so that they may appear on the record. Pittsburgh Nat. Bank v. Shoenberger, 25 Am, 6- Ettg, R. Ciis. 177, III Pa. St. 95, 2 At/. Rep. 190. As a greater width than twenty feet is expressly prohibited by the original act of 1 832, the width becomes a jurisdictional fact which may be taken advantage of at any stage of the proceeding. Pittsburgh Nat. Bank V. Shoenberger, 25 Am. &* Eng. R. Cas. 177, III Pa. St. 95, 2 At/. Rep. 190. 11. Length of the rotul. — A railroad company organized under the general law may build and construct lateral and branch roads not exceeding fifty miles in length, and use and operate any part or portion of their main line and branch or branches, when completed, the same as though the whole of the proposed railroad were fully completed. (Chapter 54, § 69, Code W. Va. 1887.) Wkee/ing, B. &> T. R. Co. v. Camden Conso/idated Oi/ Co., 47 Am. &" Eng. R. Cas. 27, 35 W^- ya. 205, 13 5. £". Rep. 369. Such branches may have, in part, a com- mon stem leading from the main line — that is, there may be a branch from a branch — provided the limit as to length is not ex- ceeded, IVhee/ing, B. (S» T. R. Co. v. Cam- den Conso/idated Oi/ Co., 47 Am. &• Eng. R. Cas. 27, 35 IV. Va. 205, 13 5. £". Rep. 369. The construction of a branch railroad nearly double the length of the main line is not of itself an abuse of the branching powers conferred on railroad companies by Pa. act of April 4, 1868 (P. L. 62). The relative importance of the main Ime and the branch cannot always be measured by their length respectively. Vo/mer's Appeat, lis P». St. «66, 8 At/. Rep. 233. 12. Who authorized to build.— Pa. ac* of March 28, 1840, amending the act of M..y 5, 1832, entitled "An act regulating lateral railroads," extends the right of mak- ing and constructing lateral railroads over intervening lands to the owner or owners of land, mills, quarries, coal or other mines, lime-kilns, or other real estate, in the vicin- ity of any railroad, canal, or slack-water navigation, made or to be made thereafter, by any company, individuals, or by the state of Pennsylvania, to each and every county ill the state. Shoenberger v. Mu/ho//an, 8 Pa. St. 134. Pa. act of 1832 empowers "any owner or owners " of lands near public improvements to construct lateral railroads — /le/d, to in- clude a case where plaintiff was in possess- ion of a coal mine under an equitable title. Shoenberger v. Mu/lio/lan, 8 Pa. St. 134. A company desirous of constructing a branch road agreed to lease its land for the purpose of ubtaining the means of doing so, and the branch was constructed under 27 Vic. cl). 60, by the lessees and the defend- ants as their assignees. The above act sanc- tions the construction of tlie branch by au- thority of the company, and confers on the lessees the right to use it under the fran- chise of the company. He/d,\.\rAX. the lessees and their assignees were not personally liable for anything which was done within the powers given to the company under the acts relating thereto. Hami/ton v. Covert, 16 U.C. C. P. 205. 1.3. Time within wliieli to build.— Where a railroad company is authorized to construct a main line and lateral roads, a subsequent act extending the time in which it may complete its road operates to extend the time also in which to complete the lateral roads. Newha// v. Ga/ena &- C. U. R. Co., 14///. 273. 14. Who may use and operate — Mandamus. — Pennsylvania lateral rail- road act of May 5, 1832, does not contem- plate that the petitioner for a road to public works should own land at the point of connection ; he may use his road there consistently with the interests of the owners of the land. Harvey v. Thomas, 10 IVatts {Pa.) 63. Mandamus will lie in a proper case to compel the builder of a lateral railroad to permit others to use his road, under the provisions of the lateral railroad law of May 5, 1832, § 7, and the pendency of pro- ceedings for assessment of the owner's damages through whose land the road is laid, is no reason for excluding transporters from the use of the road ; nor the possibility that the transporter might convey his ton- nage by some other route ; nor the fact that his cars and wagons would be an obstruc- tion to the business of the proprietors of the road. Com. ex re/, v. Corey, 2 Pittsb. (Pa.) 444. Where a railway company is authorized to construct a branch railway there is no duty imposed upon it which will be en- forced by mandamus. Great Western R If \m 7:jJK( M 686 BRANCH AND LATERAL ROADS, 15-18. I 'nt' 'ri Co. V. Queen, i Et. &* Bl. 874, 16 Jur. 675- The court will not interfere on a com- plaint by the proprietor of a branch line, that a suflicient number of trains of the main line do not stop at the junction, or at convenient times, unless the public are not sufficiently accommodated. In re Caterham K. Co., I C. B. N. S. 410, 26 L.J. C. P. 161. 15. Takiiij; lands for branch roads, generallj'.*~When a conjpany has the power to build an additional lateral road — that is, a lateral road whose construction and maintenance are possible only upon an independent right of way — the right of way statute does not prevent the condemnation of land for such additional road. Lower v. Chicago, B. &* Q. A'. Co., 10 Am. &* Ettg. R. Cas. 17, 59 Iowa 563, 13 A'; IV. Rep. 718. A private road is a wagon or cart road, and cannot be converted into a lateral rail- road by putting a railroad track on it when opened. The restrictions of the lateral rail- road act upon the exercise of the power of taking private property for public use can- not be evaded by converting a private road into a lateral railroad. Heeling's Road, 59 Pa. St. 358. Under the Pa. act of Feb. 17, 1871, land cannot be taken for a lateral railroad wharf or landing when the owner bona fide intends to use it for the same purpose in the future. Hays v. Briggs, 74 Pa. St. 373. Under Pa. act of June 9, 1874, authoriz- ing counties, cities, and townships to con- tract with railroad companies 'or the relo- cation or elevation of their roads in such manner as the authorities may deem best adapted to secure the safety of life and property, a company has the right, after ob- taining the consent of a city, to appropriate longitudinally any street to the construction of a branch road. Duncan v. Pennsylvania R. Co., 13 Phila. (Pa.) 68. 16. procedure, appeals, etc.— The number of viewers in locating lateral rail- roads is regulated by the practice under the act of 1849, and should be seven. Pittsburgh Nat. Bank v. Shoenberger, 25 Am. &* Eng. R. Cas. 177, III Pa. St. 95, 2 Atl. Rep. 190. Under the Pa. lateral railroad act of May 5, 1832, an appeal does not lie to the su- * Exercise of the right of eminent domain for branch road, see note, 36 Am. & Eng. R. Cas. 551. Right of way for lateral- and spur-tracks, see note, 4 L. R. A. 376. preme court from a decree of the common pleas overruling exceptions to a report ot viewers. Halts Appeal, 56 Pa. St. 238. Exceptions were filed to the report of viewers for a lateral railroad and an appeal to the common pleas was taken. The excep- tions were overruled while the appeal was pending ; there was no final judgment, and a certiorari from the supreme court was premature. Halls Appeal, 56 Pa. St. 238. Where proceedings under the Pennsylva- nia lateral railroad act to obtain the location of a wharf or landing for a lateral railroad are appealed, it is not necessary to put the report of the viewers marking off the landing in evidence on the trial on appeal. Hays v. Briggs, 3 Pittsb. {Pa.) 504. Where the landowner only appeals from the report of a jury alloting land for a lat- eral railroad and a landing, it is error on appeal to increase the amount of land al- loted. If the petitioner is dissatisfied with the allotment he should file exceptions. Hays v. Briggs, 74 Pa. St. 373. 17. subsequent remedies of landowner. — The Pa. lateral railroad act of May 5, 1832, is not mtended to give the petitioner more than a privilege to open, con- struct, complete, and use a railway through the land of another. He may use material from the right of way to construct the road, but coal displaced belongs to the owner of the fee, and he may maintain trover for its conversion. Lyon v. Gormley, 53 Pa. St. 261. The owner of a coal mine proceeded by petition under the Pa. act of May 5, 1832, to ascertain the amount of damage which a landowner would sustain by reason of the location of a railroad. The matter was pro- ceeded with so that a verdict was rendered for the amount of damage, which amount the petitioner paid into court, The pei tioner then entered upon the land and made the road before a judgment was entered on th? verdict. Held, that though the pro- ceedings under the petition did not furnish a justification of the trespass, yet they pro- tected him from vindictive damages. Har- vey v. Thomas, 10 Watts (Pa.) 63. 18. Taxation of branch roads.— Branch railroads built under Mo. act of March 21, 1868, are practically independent lines,and are not exempt from taxation under an exemption in the charter of the main line. Chicago, B. &* K. C. R. Co. v. Guf- fey, 29 Am. &* Eng. R. Cas. 200, 120 U. S. 569, 7 Sup. Ct. Rep. 693.— Approved in BRANCH AND LATERAL ROADS, 10.— BRIDGES— VIADUCTS, 1. GST he common a report ot S/. 238. e report of 1 an appeal The excep- appeal was inent, and a court was •a. .*./. 238. Pennsyiva- the location ral raihoad to put the the landing il. //ays V. ppeals from d for a lat- is error on of land al- tisfied with exceptions. nedies of railroad act to give the 3open,con- 'ay through ise maieridl ct the road, le owner of over for its Pa. Si. 261. oceeded by lay s, 1832, tge which a isoii of the er was pro- is rendered ch amount The pel I and niadi. entered on h the pro- not furnish t they pro- ges. Mar- roads.— «fo. act of dependent ation under r the main ^o. V. Gu/- I, 120 C/. S. 'ROVED IN State ex rel. v. Keokuk & W. R. Co., 41 Am. & Eng. R. Cas. 694, 99 Mo. 30, 6 L. R. A. 222, 12 S. W. Rep. 290. 19. Forfeiture of franchise.— Rail- road companies are not required to provide trains for passengers or freight which are not wanted or which the business of the road would utterly fail to support; and a company having other lines to support does not forfeit its charter, at the suit of the com- monwealth, by reason of a failure to run the number of trains on a branch road that it had formerly run, after the legislature has cut down its patronage by chartering a par- allel rival road. Commonwealth v. Fitch' burg R. Co., 12 Gray (Mass.) 180. BREACH. Of contracts, generally, see Contracts, VI. , measure of damages in actions for, see Damaoes, II, I. — covenant, what constitutes, see Covb- NANTS, 13, 14. BREAKWATERS. Right to erect, see Riparian Rights, 8* BRIDOE BUILDERS. When deemed fellow-servants with other employes, see Fellow-servants, VI, a. BRIDOE COMPANIES. See Bridges, 89-104. BRIDGES— VIADUCTS. Claims against government for rebuilding, see Claims Against United States, 11. Defects in, causing flooding of land, see Flooding Lands, I, a. Destroyed by military authority, liability for, see War, 7. Disobeying order of superintendent of draw- bridge, see Criminal Law, III. Duty to employes as to safety of, see Em- ployes, Injuries to, 1, 5. Injuries to animals on, see Animals, Injuries to, 77. Obstructing navigation, criminal prosecution for, see Criminal Law, III. Offense of burning, see Criminal Law, III. When deemed fixtures, see Fixtures, 5. I. OOHSTRirCTIOH, BEFAIBIITa, AlTD BXBDILDIKO 687 1. Statutes 687 2. Authority to Construct 690 3. Duty to Construct 691 4. Sufficiency 693 5. Rebuilding 696 6. Duty to Keep in Good Condi- tion and Repair 697 7. Approaches 700 8. Viaducts 702 11. ACTIONS FOR INJVBIE8 AT OR HEAR BRIDGES 703 1 . Injuries to Property 703 2. Personal Injuries 705 m. BBIDOES OVEB NAVIGABLE WA- TEB8 7 09 I. In General 709 3. Drawbridges 713 a. In General 713 b. Rights, Duties, and Liabilities with respect to Pass- ing Vessels 715 3. Obstructing Navigation 716 XV. TOLL BBIDGES; BBIDGE COMPA- NIES 720 I. In General 720 3. Rights, Duties, and Liabili- ties of Bridge Companies, or Persons who Maintain Bridges 724 I. 00H8TBVCTI0N, BEFAIEIHO, AND REBVILDINO. I. Statutes.* 1. Constitutionality.— The Alabama act of February 27, 1889, authorizing the board of revenue of two designated coun- ties to erect a bridge across the Alabama river near the city of Montgomery, making it a free foot and wagon bridge, or a rail- road bridge, or both combined, and author- izing the issuing of county bonds to pay for it and to levy a tax to pay interest on the same, is, so far as it authorizes the counties to build a bridge for railroad pur- poses, or a foot and wagon and railroad bridge combined, in violation of article 4, § 55, of the constitution, declaring that no county, city, or municipality shall lend its credit or grant public money or anything of value in aid of or to any individual, associa- tion, or corporation ; and is also in violation of article 9, § 5, of the constitution, prohibit- ing counties from levying in any one year a tax greater tlian one-half of one per sent, ex- cept in cases of necessary bridges. Garland * See post, 19. 21, 22, 96, 69-08, 04. if m\\ G88 BRIDGES— VIADUCTS, 2,3. a s mi U'l It! '■A V. Montgomery County Revenue Board, 87 Ala. 223, 6 5tf. Rep. 402. The act of the Delaware assembly of 1837 (vol. 959), authorizing the railroad company to erect a close bridge over White Clay creek, is constitutional, and gives no riglit of action to the owner of a mill above, though damage results to him from the loss of navigation and obstructing tlie flowage of water; but such bridge must be made and kept up in conformity with the law,and any additional obstruction is unauthorized, and, if attended with special damage, ac- tionable. Bailey v. Philailelpkia, IV. 2. The royal assent to the building of a rail- road bridge was given on June 10, 1857, the statute providing that all persons "who shall give notice to the company within three months from the passing of this act of their intention to make claim for com- pensation in consequence of the erection of such bridge shall be entitled to compensa- tion," Notice was given of a claim on Sept. loth of the same year. Held, that the three months commenced to run from the day after the passage of the act, and that the notice was therefore in time. St. Andrew's Church V. Great Western R. Co., 12 U. C. C, P. 399. See also in re New York Bridge Co., 67 Barb. (N. Y.) 295. O. statutes providing remedy for violation of fVancliise.t— The rem- • See post, 30-42. tSee/w/, 91,02. I D. R. D.— 44 edy given by a statute, providing that the owner of franchise to build a bridge and collect tolls may sue and collect before a justice treble the amount of tolls of an owner of an unauthorized bridge used in competi- tion with the authorized bridge, is merely cumulative, and does not preclude an action in equity for a violation of the franchise. Thompson v. New York c . Tossings may be safely passed ove • , ' r. :. . , made by the company before the establishmei t of the highway or other obstructions to travel within the limits of the rif ' t of w " ' 'it be- yond the limits of a proper copstrnction < ' " approaches " to the railroad crossing's, are not within the terms of the statute, and such ditches therefore need not be bridged. 0' Fallon v. Ohio 6- M. R. Co., 45 ///. App. 572. (3) " ^ay."— The word " bay," as used in the act chartering the Hudson River R. Co., and requiring bays to be bridged by draw- bridges under certain conditions and cir- cumstances, does not include such places as at low water are used only by one person, and are covered with but a few inches of water. Getty v. Hudson River R, Co., 21 Barb. {N. K) 617, (4) "Bridge." — A structure erected over a railroad track where it crosses a highway, for the passage of travellers, is a " bridge " within the meaning of the Maine statutes. State V. Gorham, 37 Me. 451. The New York act of 1856, ch. 146, en- titled " An act authorizing the construction of a bridge across the Hudson river at Al- bany," construed to authorize a bridge for the transportation of railroad trains and also as a common highway for the accom- modation of the general public. Silliman v. Hudson River Bridge Co., 4 Blatchf. {{/. S.) 74- (5) " Profits." — Under the act of congress of June 30. 1864, § 122, providing, inter alia, that all profits of a railroad company carried to " the account of any fund or used for con- struction shall be subject to and pay a duty of 5 per centum on the amount of such profits," moneys used for repairing a rail- road bridge of the same materials and dimensions are not " profits used for con- struction," within the meaning of the stat- ute ; but the additional cost of replacing a wooden bridge by a more expensive stone bridge is within the statute. But if the cost of the stone bridge be charged to the company's expense account, and the whole amount of such account for the year is not more than a proper per centage of its gross earnings to cover current expenses and to make necessary repairs, the additional cost of such bridge will not be deemed within the provision of the statute. Hartford &* N. H. R. Co. V. Grant, 9 Blatchf. {[/. S.) 542. (6) "Public works." — Under a provision of § 20 of Ohio St. May I, i852(Curwen'3 Rev. St. Ohio, § 3317, 6th ed.), pro- viding that whenever the line of any railroad company shall cross any canal or any navigable water, the company shall file with the board of public works, or with the acting commissioner thereof having charge of the public works for such crossing as proposed, the plan of the bridge and other fixtures for crossing, the expression " public works " does not coniine the jurisdiction of the commissioner to such works only as shall be constructed over waters made navigable by the state, but extends to railway bridges over any navigable waters of the state. Works v. Junction R. Co., 5 McLean {U. S.) 425. (7) " Streams."— lYi^ New York act of 1857, ch. 639, authorizing bridges over streams dividing towns, does not authorize bridges over bays, lakes, or other bodies of water, nor does it authorize causeways and bridges over marshes or such waters, they not being " streams " within the meaning of the statute. In re Irondequoit, 68 N. Y. 376. 2. Authority to Construct. 10. Generally.'*' — Railroad companies have lawful authority to build across streams, but must restore the stream to its former state or to such state as not un- necessarily to impair its usefulness. Culver v. Chicago, R. L &> P. R. Co., 38 Mo. App. 130. The prohibition to a railroad corporation to build a bridge over the waters of Charles river at Boston, or to place any obstruc- tion therein, does not apply to an arm of the river that has been dammed off so as to form a basin for the storage of * See post, 45, 59-64, 69. No express charter power required to build bridges, see note, 13 Am. & Eng.' R. Cas. 172. BRIDGES— VIADUCTS, 11-15. 691 m isive stone 3ut if the ged to the the whole ^ear is not of its gross ses and to tional cost Tied within artford &* i/. (I/. S.) provision 2 (Curwen's ed.), pro- e of any any canal company of public nmissioner iblic works he plan of tr crossing, does not nmissioner onstructed the state, 5 over any Works V. I.) 425. orlc act of idges over t authorize r bodies of seways and vaters, they meaning of i N. V. 376. ct. companies ild across ream to its is not un- ss. Culver \ Mo. App. :orporation of Charles ly obstruc- ;o an arm immed off storage of ed to build Cas. 172. water, but only to the waters of the river below the dam and open to navigation, and was designed mainly tu protect navigation. Boston Water Pmver Co. v. Boston 6- W. B. Co., 23 Pt'ci (Mass.) 360. The Wisconsin act of 1873, ch. 119, § 11, authorizing a railroad company to construct its road " across, along, or upon any stream of water, watercourse, or highway," au- thorizes it to bridge the same. Miller v. Prairie du Chien &* McG. B. Co., 34 Wis. 533- 11. Permission of commissioners. — Commissioners were appointed by the commonwealth to superintend the filling and laying out of what is known as the Back Bay in Boston, and arrangement was made by which a water-power company was to fill and own a certain part thereof. The directions of the commissioners provided that a street was to be carried over a rail- road by a bridge about thirty feet in length, the remainder to be filled up with clean gravel and hard earth, but that the " dis- tances and dimensions of the bridge may be increased hereafter, if found * ♦ * desir- able." Certain lots were sold to a railroad company which covenanted to carry out the agreement of the water-power company. The commissioners voted to allow the rail- road company to construct a bridge not to exceed three hundred and sixty-seven feet long, whereupon a property-owner on the street filed a bill for an injunction. Held, that the power to make the change in the bridge was reserved to the commissioners, and that the bill could not be maintained. Gardner v. Boston Water- Power Co., <) Allen {Mass) 466. 12. Under contract with munici- pality.— The city of Chester had power, under the special Pennsylvania act of March 25, 1873 (P. L. 376), to make a valid contract with the Philadelphia, W. & B. R. Co. whereby the city wtuld grade off Pennell street so as to cross over a bridge at such a height as to permit the easy operation of the railroad under the street, provided the railroad company would construct a bridge there of a certain kind and character. Phil- adelphia, W. (S- B. B. Co.'s Appeal, 121 Pa. St. 44, 1 5 All. Rep. 476. 13. Bight to purchase bridge al- ready built. — A corporation authorized by law to build a bridge at a given point may buy one already built at the same point if suitable for their purpose. Thompson v. New York &• H. B. Co., 3 Sandf. Ch. (N. K) 625. A railroad company was chartered with power to build a bridge for their railway across a river. At or near the place where it had to cross, a private bridge had been erected by individuals duly authorized by law to build a bridge for their own private use, which was entirely convenient and of suffi- cient strength for the purposes of the rail- road ; and the company purchased the bridge of the owners, reserving to the latter the use of it as before. Held, that the owners were authorized to sell and the company to buy the bridge. Thompson v. New York &* H. B. Co., 3 Sandf. Ch. {N. Y.) 625. Where the consent of the county authori- ties to the use of the bridge had been given, and the condition on which it was accorded was accepted and acted on by the company, it became a binding contract until the license was revoked by the only authority having power to revoke it. Floyd County v. Bome St. B. Co., 77 Ga. 614, 3 S. E. Bep. 3. The Georgia act of October 7, 1885, did not affect the right of the railroad company to the use of the bridge, which had previ- ously accrued. That act was intended not to restrict the company's franchise, but to extend it upon the conditions named therein. Floyd County v. Bome St. B. Co., 77 Ga. 614, 3 S. E. Bep. 3. 14. Bight to bridge river rather than establish ferry.— A charter author- izing a railroad company to cross a river by bridge or ferry, "as may be most conven- ient," regards the convenience of both the navigation and the railroad interest; and, in the absence of any designation to the contrary, makes the railroad company the judges as to v.iiich will be the most conven- ient. That a bridge would be less convenient to navigation than a ferry does not deprive the company of the right to build a bridge. Attorney-General ex rel. v. New York &* L. B. B. Co., 24 N. J. Eg. 49.— Following Stephens & C. Transp. Co. v. Central R. Co., 34N.J. L. 281. 3. Duty to Construct. 15. Generally.* — A company owes no r m ■(,*' *Sttpost, 41, 70. Bridges over railroads, obligation to construct, see note, 39 Am. & Eng. R. Cas. 248. Duty of railroad companies to build bridfrf over track and maintain farm >'riissiiigs; who has a right to locate, see 26 Am. &. Enu. R. Cas. 364, alisir. 1 1^1 693 BRIDGES— VIADUCTS, 16, 17. 1 1 f i 1 ; 1^^^' ' ^Dl»|t'.::.||; duty of building a road or bridge on its right of way unless the same is rendered necessary by the construction of the rail- road. OAto &* M. R. Co. V. Bridgeport, 43 ///. App. 89. Railroad companies are only bound to build and maintain such bridges and other structures as ordinary and reasonable men can foresee will be necessary to meet the ordinary contingencies aiiH demands of na- ture. Peoria &* P. U. R. Co. v. Bar/on, 38 ///. App. 469. Railroad companies are required to keep in proper repair public roads or private ways established by law where they cross the rail- road, and to build suitable bridges or make proper excavations or embankments; but they are not required to build bridges for crossings which are neither public nor pri- vate ways established by law. Cox v. East Tenn., V. &* G. K. Co., 68 Ga. 446. 16. Under contract with abutting landowner.— A company contracted with the owner of land over which its road ran to build a bridge over its track at a specified point on said land within twelve months after the completion of the road. The road was not completed for several years and the bridge was never built. Held, that the owner of the land was not entitled to re- cover damages. St. Louis, J. 6- C. R. Co. v. Lurton, 72 III. ii8. In a suit against a railroad company for a failure to build a bridge over its road at a given point, in pursuance of a contract so to do, the measure of damages was held to be, not the difference in the value of property to be affected by the bridge, or the want of it, but the cost of building such a bridge, together with reasonable compensation to the other party to the contract, for his time and labor in procuring and managing its construction, and perhaps such damage as might be sustained during the time required to build it. St. Louis, J. &* C. R. Co. v. Lur- ton, 72 ///. 118. A railway company which obtains a con- veyance from a landowner for the purposes of its road, and binds itself thereby to erect and maintain a bridge of certain width over a road leading to such owner's property, is bound not to depart from those conditions, and another company claiming under it is equally bound. Edinburgh &* G. R. Co. v. Campbell, 9 Z. T. 151. 17. At crossings of streets and highways.*— Under the Maine Rev. St„ ch. 81, § 62, railroad companies are required to erect necessary bridges where their tracks pass over or under any highway. State v. Gar ham, 37 Me. 45 1 . The lawful construction of a railroad upon the grade of a street does not exempt it from bridging when it becomes necessary. State V. Minneapolis 6- St. L. R. Co., 35 Am. &• Eng. R. Cas. 250, 39 Minn. 219, 39 N. W.Rep. 153. Under New Hampshire Gen. Laws,ch. 161, § 3, a railroad company may be required to bridge a highway established but not con- structed. Worcester, N. A- R. R. Co. v. Nashua, 63 N. H. 593. 4 Atl. Rep. 298. The duty of a railroad company to con- struct and keep in repair good and sufficient bridges or passages where any public road shall cross the same is continuous. State (_Reed, pros.) v. Camden, 53 N.J. L. 322, 21 Atl. Rep. 565. The duty of building necessary bridges at highway crossings which was imposed upon the Montclair Railroad Company by its charter devolves upon the new corporation which purchased the property and franchises of the old corporation at the foreclosure sale and reorganized under the New Jersey Railroad and Canal Act, § 56. New York &> G. L. R. Co. V. State, 32 Am. 6- Eftg. R. Qts. 186, 50 N. J. L. 303, II Cent. Rep. 555, 13 Atl Rep. I. Under the New York general railroad act of 1850 it is the duty of railroad com- panies in constructing tracks across high- ways to restore them to their former state, or to such state as not to unreasonably im- pair their usefulness ; and where a bridge over a railroad track becomes necessary, the company is bound to construct it and keep it in repair as long as the highway exists, or as long as the company continues to exer- cise and enjoy its franchise. People ex rel. V. Troy cS- B. R. Co., 37 Haw. Pr. {N. V.) 427. The North Carolina R. Co. is not re- quired, under its charter, to construct cross- ings and bridges over its track except where the same is crossed by public roads which are kept in repair at the public ex- pense by overseers and laborers duly ap- * Authority to impose on raili-. '^^ the duty to make bridges and crossings over new streets and highways, see note, 32 Am. Eng. R. Cas. 276. BRIDGES— VIADUCTS, l»-ao. (!93 i pointed to work them. Coon v. North Caro- lina R. Co., 65 A^. Car. 507. A road company incorporated under the general acts was *held entitled to maintain an action against the Hamilton & Toronto Railway company for neglecting to make, within a reasonable time, a proper bridge over their railway where it crossed the plain- tiiT's road. Streetsville Plank Road Co. v. Hamilton &* T. R. Co., 13 [/. C. Q. B. 600.— Following Rose v. Miles, 4 M. & S. loi. — — Distinguished in Hamilton & B. Road Co. V. Great Western R. Co., 17 U. C. Q. B. 567. 18. Where several railroads cross a street.— Each of several railroad companies crossing streets nearly at the same place may properly be required to construct the parts of the bridges above its own system of tracks, and the necessary approaches, with- out other apportionment between them of the cost of the entire bridge structure and approaches. State v. Minneapolis &* St. L, R. Co., 35 Am. &> Eng. R. Cas. 250, 39 Minn. 219, 39 M W. Rep. 153. 10. Mandamus to enforce sta1n|tory duty. — Where a railway company refuses to construct a bridge over a river, so as to leave the same width of water-way and a clear height of five feet above the level of the river, an adjoining landowner is en- titled to a mandamus to compel it to comply with the statute, although by such statute he is given power to apply to a justice for an order enabling him to make the bridge at the expense of the company. Reg. V. Norwich &* B. R. Co. , 4 Railw. Cas. 112, iD.&'L. 385, 15 L.J. Q. B. 24. Upon the trial of mandamus proceedings against two railroad companies to compel the restoration of highways crossed by their tracks, evidence was admissible in the pro- ceeding against the one company as to the extent of the use of the street-crossing by the other company, showing the necessity for a bridge at the place in question. StAte V. Minneapolis &> St. L. R. Co., 35 Am. &* Eng. R. Cas. 250, 39 Minn. 219, 39 N. IV. Rep. 153- The fact that it is necessary that the St. Paul, M. & M. R. Co. shall also bridge its tracks is not a fatal objection to a man- damus proceeding against the Minneapolis & St. L. R. Co., where the former com- pany has been in fact required to construct the bridges over its tracks. State v. Minne- apolis &» St. L. R. Co., 35 Am. 6- Eng. R. Cas. 250, 39 Minn. 219, 39 N. Jl'. Rep. 153.— Following State v. St. Paul, M. & M. R. Co., 3S Minn. 131, 38 Minn. 246. 4. Sufficiency.* 20. Generally. — Railroad bridges over which trains are to pass should be con- structed of the best and most durable ma- terials that will insure the greatest safety to the travelling public. Toledo, P. &* W^. R. Co. V. Conroy, 68 ///. 560.— Quoted in Wilson V. Denver, S. P. & P. K. Co., 15 Am. & Eng. R. Cas. 192, 7 Colo. 101. In building a bridge at the crossing ot its track over a public street a railroad company is bound to construct it of such material and in such manner as to make and keep it safe for public travel. Caldwell v. Vicksburg, S. &» P. R. Co., 39 Am. <&- Eng. R. Cas. 245, 41 La. Ann. 624, 6 So. Rep. 217. In constructing and maintaining its bridges a railway company is bound to take into account the fact that accidents may occur in the operation of its road, and to construct its bridges with reference thereto; and it is held to a very high degree of care in that respect. Pershing v. Chicago, B. &* Q. R. Co., 34 Am. &- Eng. R. Cas. 405, 71 Iowa 561, 32 N. IV. Rep. 488. The degree of care required of a railroad company in constructing a bridge across a watercourse is such as to bring to bear such engineering skill as is ordinarily applied to works of that kind, in view of the size and habits of the stream, the character of its channel, and the declivity of the circum- jacent terr tory forming the watershed. Ohio &> M. R. Co. V. Thillman, 143 ///. 127, 32 A'; E. Rep. 529. If the proprietors of a bridge allow a rail- road company to lay tracks over it and to operate trains thereon, they must provide necessary guards against injuries liable to occur through the increased danger. Peo- ria Bridge Assoc, v. Loomis, 20 ///. 235. — Quoted in Chicago & R. I. R. Co. v. Mc- Kean, 40 111. 218. A bridge having been built by a com- pany under the authority of the general railroad law, the township had power to erect any superstructure on it to render it safe, and collect the cost from the company. Newlin Tp. v. Davis, 77 Pa. St. 317. The statutes of Connecticut (Rev. St. 323, 324, §§ 28, 30) do not require the rail- *See/w/, 40, 71. :!;:■ ^k^'' 694 BKIlJ(iKS— VIAUUCTS, 21-23. road company to maintain tlic liighway un- der the bridge so as to prevent the bridge from interfering with public travel. Gray V. Danbury, 29 Am. ridge, and narrowing is caused, rian owner ompany is A'. Co., 39 l^a. 39. 10 V. Ports- Revikw- R. Co., 16 istructed a river, the n center to Tied above if the river hereby the estroyed — ; evidence js between permit the of ice and xpected to favor of B ! set aside. 20 Am. S- !V. W. Rep. -(I) What Iway com- 5s a water- irovide for which, by nspection, . R. Co. V, ep. 245, riflge over rater, and 'n to hiive 2 required > its char- :umjacent ' of water that if in- of former ke in the rks upon egligence >proach oi light and unsubstantial soil, reaching into the water-way. Kansas Pac. R. Co. v. Miller, 2 Colo. 442, 20 Am. Ry. Rep. 24$. A railway company is liable for damage done to property by the carrying away of its bridge by a flood of extraordinary and un- usual violence, if the bridge was carried away because of its negligent and unskilful con- struction ; but if it was constructed in such manner, and was in such condition of repair, as to allow the water of an ordinary flood to be carried off and to resist the force of the .same, and was carried away solely by reason of the unusual height and destructiveness of the flood, the company is not liable. Pied- mont &* C. R. Co. V. McKenzie, 52 Am. &* Enfr. R. Cas. 667, 75 Md. 458, 24 Atl. Rep. "57. Railway companies should construct their bridges and trestles so as to be secure and sufficient against usual and ordinary floods in that particular section of country; and even a defective condition of their bridges caused by a sudden and extraordinary freshet will not be excused, if there be time, in the exercise of reasonable care and attention, to discover the defect. Whether there was such time or not is a question of fact for,the jury. Knahtla v. Oregon, S. L. &* U. N. R. Co., 21 Oreff. 136, 27 Pac. Rep. 91. The company is bound to exercise ordi- nary care, which is such care as is usually exercised under like circumstances by men of ordinary prudence in their own affairs. It is its duty to guard against such floods or freshets as men of ordinary prudence can foresee, but not against such extra- ordinary floods and accidental casualties as cannot reasonably be anticipated. Ohio <5» M. R. Co. v. Thillman, 143 ///. 127, 32 N. E. Rep. 529.— Quoting Illinois C. R. Co. v. Bethel, 11 111. App. 17. (2) What floods need not be provided for. — In the location and construction of bridges and trestles a railroad company is required to bring to the work the engineer- ing skill and knowledge generally known and applied in business, having regard to the size and nature of the stream, the char- acter and features of the adjacent country which constitutes its watershed, the relative position and formation of the abutting land, its liability to overflows, and their probable extent and effect; but it is not bound to provide against unusual or extraordinary floods such as have never been known to occur before, and which could not reason- ably have been anticipated by competent and skilful engineers. Columbus &* W. R. Co. v. Bridges, 38 Am. &* Eng. R. Cas. 136, 86 Ala. 448, 5 So. Rep. 864. Peoria f/ami, C, C. &* St. L. A'. Co. v. IVa/- ttr, 147 ///. 60, 3 A', E. Rep, 529. -FOLLOW- ING Chicago & A. R. Co. v. Johnson, 116 III. 206. A railroad company cannot, under any circumstances, construct a bridge over its tracli so low that brakemcn on top of the train in discharge of their duties cannot avoid danger by bending or stooping. Louisville &* N. A'. Co. v. //«//. 39 Aw. &> Eng. R. Cas. 298, 87 Ala. 708, 4 L. R. A. 710, 6 So, Rep. 277. When in crossing a highway it becomes necessary for a railroad company to con- struct a bridge across its truck, it is its duty, if reasonably practicable, to place the stnu l- ure at such an elevation that trains can pass under it without injury to persons em- ployed upon them. But if the conforma- tion of the ground is such as to render the elevation impossible, or as to cause incon- venience to the public in the use of the bridge, or greatly increase the expense to the railroad company, the bridge may be so constructed as to extend below the line of absolute safety. Louisville &* A'. R. Co. v. //all, 39 Am. (S- Eng. R. Cas. 298. 87 Ala. 708. 4 L. R. A. 710, 6 So. Rep. 277. Where a railroad company built a bridge over a highway, and was itself guilty of no negligence, and the bridge was built upon such plans and at such height as the borough required, the comp.iny is not bound to pre- vent the highway from being raised, nor to preserve the original space between it and the bridge. Gray v. Danbury, 29 Am. ^ Eng. R. Cas. 486, 54 Conn. 574, 10 Atl.Jitp. 198. 26. When need not provide for other than railway traffic— Defend- ants were chartered with power to build a bridge both for railroad traffic and ordinary travel. A bill filed by tiie attorney-general stated that the bridge had been completed for railway traffic and leased to a company ; that a foot-passage had been constructed, but the public were not allowed to cross thereon, and that no carriageway had been constructed, the company having aban- doned the idea of opening it for ordinary travel, //eld, on demurrer, that a court of equity could not grant a prayer of the bill so far as it asked that the bridge be abated as a nuisance by reason of not being com- pleted; but that it did make a case for equitable relief so far as it prayed that the footway be opened to the public. Attorney- General v. /niernational Bridge Co,, 27 Gnint C/i. (Ont.) 37. It was proper that said bill be filed by the attorney-general, and that the railroad '■onjpany using the bridge be made a dc- icndant. Attorney General v. /nternational Bridge Co., 27 Grant Ch. (Ont.) 37. I'OL- I.OWINCJ Attorney (Jeneral v. Niagara Falls I. Bridge Co., 20 Grant Ch. (Ont.) 34. 27. Proof of insiiHicleiicy.— /V/'w /-ng. R. Cas. 467, 101 A/o. 79, 13 S. IV. /\'ep. 410. 5. Rebuilding. 28. Generally.— A corporation, pur- chaser of canals and public works of the state, " subject to all contracts and arrange- ments heretofore made by act of Pennsyl- vania assembly, or otherwise for or in re- spect to the use of such works ; " and re- quired to " carry out the same w ith all per- sons interested therein in the same manner as the commonwealth f)r its agents were re- quired to do by law," is bound to rebuild a bridge, necessary to the public, which had been erected by the state over the canal when made, but which had fallen down since the purchase. /Pennsylvania R. Co. v. Duquesne Borough, 46 Pa. St. 223. — Re- viewed IN District of Columbia v. Wash- ington & G. R. Co., 4 Am. & Eng. R. Cas. 161. I Mackey (D. C.) 361. While the state owned the canal the ques- tion of the necessity of the bridge was for the canal commissioners alone, because of the immunity of the state from suit; but when it passed to a private corporation the question of necessity and consequent duty became one of a private right, and passed into the jurisdiction of the courts. Penn- sylvania R. Co. v. Duquesne Boroug/t, 46 Pa. St. 223. Though the state could not be compelled to rebuild the bridge because of its state character, the purchaser of the public works has not that immunity; for a duty which cannot be enforced by action because owed by the state, becomes a subject of ac- tion when transferred to private persons. HRIIXil'S -VIADUCTS, 'JiU ilii. dOT Pennsylvania A", to. v. Duqucsnt- liotough, 46 Pa. S/. 22y 20. Itvbullt by tuwii or county.— A railroad company having; in the construction of its road changed the location of a town- sliip road, and having erected a bridge over a creek for a new public road, and n-fused to repair and maintain it, the touii:4hip re- built it. J/e/ii, that the company was liable to the township for the cost of the bridge. The company having originally built the bridge to meet the necessities tA the public, the duty devolved upon it to maintain and repair it. Pennsylvania K. Co. v. Borough oj Jnvin, 85 Pa. St. 336, 18 Am. Ky. Rep. 562. The board of commissioners of a county is the proper party to bring an action to re- imburse the county for expenses incurred by such board in rebuilding a bridge upon a county road within the limits of a village, which bridge had been so far wrongfully in- jured by a railroad company in theccmstrur tion of its railroad across such county road as to require the construction of a new bridge. Perry County v. Neivark, S. &* S. A". Co., 43 Ohio St. 451, 2 N. E. Pep. 854.— DisiiN(;uisHiNG Lawrence R. Co. 7'. Com'rs of Mahoning County, 35 Ohio St. i.— DlS- TiNc.uiSHKU IN Com'rsof Mahoning County V. Piiisburgh & W. R. Co., 45 Ohio St. 401. UO. " To the sutiHt'nctioa of board of trade." — Where a railway bridge is blown down and an act is passed authoriz- ing the company to construct a new one, but requiring it to remove the ruins and debris of the old bridge to the satisfaction of the board of trade, this is an absolute obligation, and the board of trade have no discretionary power to dispense with the performance of any part of it ; the import of the expression, " to the satisfaction of the board of trade," is, that though not bound to submit its plans of removal, in- cluding the time and manner, yet, as a mat- ter of prudence, the company ought to do so. North British R. Co, v. Perth, Provost of, L. R. 10 App. Cas. 59. 6. Duty to Keep in Good Condition and Repair.* 31. Generally. — Where a railway crosses a city street below grade, and a bridge and approaches are erected by the company to carry the travel upon the street • See post, 79, 85. above the track, it is the duty of the com- pany to keep both the bridge and the ap- proaches in a safe condilii)!!. Newton v. Chicago. R. 1. &* /'. R. Co., 23 Ami. 6-* ling, R. Cas. 298, 66 towa 422, 23 A'. /F. Rep. 905. — Foi.l.owiNd Farley v. Chicago, R. I. & P. R. Co., 42 Iowa 237, If a railroad company accepts permission granted to it by the highway commissioners to construct a bridge over a crossing, the duty is liiereby imposed upon it of keeping the same in proper repair. Hayes v. New York C. &* H. R. R. Co., 9 //un (N. V.) 63. Under the New York act of 1850, ch. 140, § 24, a railroad company carrying a high- way over its track, as therein authorized, is bound to keep the bridge in proper re- pair, .uid is liable to indictment for a failure to do so. People v. New York C. &* H. R. R. Co., 74 A'. Y. 302; modifying 12 Hun '95. A railway company must keep its bridge over the track in such a condition as not to be dangerous to any one using it in a lawful manner. Lay v. Midland R. Co., 34 L. T. 30 ; ri"iiersing 30 /,. 'P. 529. A company must keep its railroad bridges in such condition and repair as to make them safe for the travelling public. Cald- well V. Vicksburg, S. &* P. R. Co., 39 Atn. jS- Eng. R. Cas. 245, 41 La. Ann. 624, 6 So. Rep. 217. The bridgeway over the Missouri river at Kansas City is a public highway, being held and operated under a franchise granted for the purpose of a public roadway for the transportation of passengers over the river; and the company owning it is underas much obligation to keep it in a reasonably safe condition as if it were a ferry. Pembroke v. Hannibal &• St. f. R. Co., 32 Mo. App. 61. 32. Scope and extent of the rule. — The duty on the part of the railroad com- pany of keeping in repair bridges where a public road crosses the track is continuous. State (Reed, pros.) v. Camden, 53 N.f. L. 322, 21 All. Rep. 565. The duty of a railway company is not dis- charged by trusting, without inspecting and testing, to the reputation of manufacturers and the external appearance of materials used in the construction of bridges. The law requires that before the lives of passengers are trusted to the safety of its bridges the company shall carefully and skilfully test and inspect the materials it uses in such structures; and after the bridges are con- ■i.»: m. r'-' ■ m 1, 608 BRinC.l'S— VIADUCTS, US. 5 A H '!■' > 1 1 1 J : -i [ 1 i^k:,: strutted it is the duty of tiie company to test them from time to time to ascertain whether they are being impaired by use or exposure to the elements. Louisville, N. A. (J* C. R. Co. V. Snyder, 37 Am. vision of providing road, and eep up at or over hich tbey be buili in ids," does e the pas- '^ilmington Wilming- ' does not md repair s laid out said rail- R. Co., 74 Pennsyl- ing for the ling Canal ry & E. R. a private :n done by he bridge the canal awanna & built their where the he bridge g it in re- , the canal :upon suit rni. Held, t relieved bridge in company I of their mat Co., ^ -A special , when its construct ipike road r the road ot restrict I the com- 's liability \'e7vcastle- >ad ( Trus- tees) V. North Staffordshire R. Co., S H. &• N. 160; s. c. nom. Leech v. North Stafford- shire R. Co., 29 L.J.M. C. 150. %W.R.i\(i. Where a person is authorized by private act to make a road under a railway, and to maintain a bridge to the satisfaction of the company's engineer, the company cannot without giving such person notice make repairs and hold him liable for the expense, although the necessity for such repairs could only be ascertained by entry on and examination of the bridge. London &* S. W. R. Co. v. Fiower, 45 L. J. C. P. 54, 33 L. T. 687, (6) Locomotive Act, 24 S^ 25 Vic. ch. 70, § 7. — The Locomotive Act, 24 & 25 Vic. ch. 70, § 7, relating to the repair of bridges damaged by reason of any locomotive pass- ing over or coming into contact with the same, does not apply to bridges repairable by the inhabitants of the county. Reg. v. Kitchener, 29 L. T. 697, 12 Co.x C. C. 522, L. R. 2 C. C. 88, 43 L. J. M. C. 9. 22 W. R. «34- (7) Rat/ways Clauses Consolidation Act, 8 Vic. ch. 20, §§ 46, 65. — Where a railway crosses a highway, and the road is carried over the railway by means of a bridge, in accordance with the provisian of § 46 of the Railways Clauses Consolidation Act 1845, the railway company are bound to keep in repair the roadway upon the bridge, such roadway being part of the bridge which by the section the company are to maintain. Mayor, etc., of Bury v. Lancashire airs at one end only, without thorough examination — held, that the company were negligent to such a degree as to merit the severest censure. Act- ual knowledge of the defects is not neces- sary, but it is sufficient if the company might have been informed by the use of such diligence as the law requires. Toledo, P. &- IV. R. Co. V. Conroy, 63 ///. 560. Where a bridge is weakened by a sudden and unprecedented flood, and there is no time or opportunity for inspecting it, the railroad company is not responsible for an injury resulting from its giving way beneath a train run with proper care and skill ; but it is otherwise if its unsafe condition may reasonably be discovered in time to avoid danger. Louisville, N. A. &• C. R. Co. v. Thompson, 27 Am. &" Eng. R. Cas. 88, ro7 fnd. 442, 57 Am. Rep. 120, 8 A^. E. Rep. 18, 9 A'. E. Rep. 357.— Distinguishing Pitts- burg, Ft. W. & C. R. Co. V. Gilleland, 56 Pa. St. 445; Flori v. St. Louis, 69 Mo. 341, 33 Am. Rep. 504; Livezeyv. Philadelphia, 64 Pa. St. 106, 3 Am. Rep. 578; Nashville • ;n«> I •sill' W'^^ i- iii ■,■ TOO BRIDGES -VIADUCTS, ;jr.-ao. If ' i. 'I '4- l*^. ll 6 C. R. Co. t'. David, 6 Hcisk. (Teiin.) 261, 19 Am. Rep. 594. 35. ExpcuKCS of repairing.— The plaintiff company repaired a bridge owned by the defendant, although the defendant had had no notice nor any icnowledge or means of ascertaining that tlie repairs were necessary. It was AM, that the company was i.ot entitled to recover expenses so in- curred. London i. Delaware &* B. B. R. Co., 27 N.J. Eq. I ; affirmed in 27 N.J. Eq. 631. The viaduct thus built by the Delaware & Bound Brook Railroad Company held not to interfere with the navigation of the river and not to be a nuisance in fact. Attorney- General V. Delaware &» B. B. R. Co., 27 N.J. Eq. I ; affirmed in 27 A'^. /. Eq. 631. The viaduct so constructed is not a toll bridge, but merely the railroad connection of two railroads — a highway, by railroad, over the river. The company so operating it isnot chargeable with a usurpation of a franchise to take tolls. Attorney-General v. Delaware &» B. B. R. Co., 27 N. J. Eq. i ; af- firmed in 27 A^. /. Eq. 631. The construction of a viaduct, to be ex- clusively used for the passage of locomotives and cars, is not a bridge within the meaning of a bridge company's charter, granting it the exclusive right and franchise of main- taining a bridge and collecting tolls for travel thereon. Proprs. of Bridges v. Hobo- kiH L. &» I. Co., xiN.J.Eq.Zw affirmed in 13 N.J. Eq. 503. n. A0TI0K8 FOB IITJURIXS AT OB NSAB BBIDOES. I. Injuries to Property. 40. Generally.— A bridge with lateral embankments, erected by a railroad corpo- ration for the purpose of raising a highway and carrying it over their road, is as much a part of the structure authorized by their charter as the railroad itself ; and any per- son injured by the erection of such bridge and embankments is entitled to recover his damages thereby occasioned, in the manner provided by the Massachusetts Rev. St. c. 39. § 56. Parker v. Boston &• M. R. Co., 3 Cush. {Mass.) 107.— QUOTED IN White v. Quincy, 97 Mass. 430. The erection of bridge abutments upon the side of an unfrequented country road, which are not presently used or needed for use, but are overgrown with bushes and weeds, will not inflict a serious public injury of the character which will induce this court to in- terfere by preliminary injunction. Raritan rp. V. Port Reading R. Co., 50 Am. &* Eng. R. Cas. 169, 49 A^. /. Eq. 1 1, 23 Atl. Rep. 127. An action will not lie against a railroad company for consequential damages caused by their erection of a bridge over their rail- road, done under New Hampshire Rev. St. ch. 142, § 4. Towle v. Eastern R. Co., 17 N. H. 519.— Distinguished in Eaton v. Boston, C. & M. R. Co., 51 N. H. 504. The board of county commissioners of Mahoning county can only maintain such actions as are authorized by statute, and cannot, under §§ 860, 863, and 4938, Ohio Rev. St., giving them general power to erect and maintain bridges, maintain an ac- tion against a railroad which, in constructing its road under one end of the bridge, ex- cavated dirt near one of the abutments, in such a way as to render it insecure and to damage the bridge and render it unsafe for travel. Com'rs Mahoning County v. Pitts- burgh &* W. R. Co., 45 Ohio St. 401, 15 A^. E. Rep. 468.— Distinguishing Perrj' County V. Newark, S. & S. R. Co., 43 Ohio St. 451. 47. Obstructing access to high- way. — A railway company were sued for erecting a bridge over and along a public highway running through the plaintiff's land and crossed by their line of railway running under ^ch bridge, and for the in- jury thereby occasioned to the plaintiff's land in obstructing the access to the high- way, etc. There was, however, sufficient room left for access at one end of the bridge. The jury found for the defendants, on the ground that no damage had been sustained, and the court refused to disturb the verdict. McDonell v. Ontario, S. 6* H. R. Co.,\i U. C. Q. B.27\. 48. Obstructing flow of water- Flooding lands.*— A railroad company building a bridge across a river in such *See(i»/^ 22. 'If I -I :; m 704 BRIDGES— VIADUCTS, 48. \}l manner as to obstruct the passage of the water are liable for flooding adjacent lands, unless they show that they have taken reasonablr precautions to prevent unneces- sary damage to his land. MelUn v. Western R. Co., 4 Gray (Mass.) 301.— DISTINGUISHED IN Eaton V. Boston, C. & M. R. Co., 51 N. H. 504. A company bridging a stream is liable to the owner of a water-mill above who is in- jured by the bridge being so constructed as to prevent the water from flowing from the mill as freely as it had formerly done, but is not liable for increased expense in getting logs up the stream to his mill, whether the stream is navigable for rafts and boats, or not. B/ood v. Nashua &• L. R. Co., 2 Gray {Mass.) 137.— Distinguished in Eaton v. Boston, C. & M. R. Co., 51 N. H. 504. A complaint against a railroad company for flooding the plaintiff's land alleged that the same was caused by the building of a railroad bridge across a creek too low and the placing of the piling so close as to obstruct the stream and dam up the water on plaintiff's land. Held, that it was error to charge that the company was liable if the injury was caused by " negligence, careless- ness, or improper construction of the bridge." There was no right to recover unless the bridge was defective in the particulars speci- fied in the complaint. Abbott v. Kansaz City, St. J. 6- C. B. R. Co., 20 Am. 6- Eng. R. Cas. 103, 83 Mo. 271, 53 Am. Rep. 581.— Approved in Jonas z/. St. Louis, I. M.& S. R. Co., 84 Mo. 151 ; Moss v. St. Louis, I. M. & S. R. Co., 85 Mo. 86. Distinguished in Brink v. Kansas City, St. J. & C. B. R. Co., 17 Mo. App. 177. Reviewed in SuUens v. Chicago, R. I. & P. R. Co., 74 Iowa 659, 7 Am. St. Rep. 501, 38 N. W. Rep. 545 ; Martin V. Benoist, 20 Mo. App. 262. Where, however, there is lawful authority for the construction of a bridge or other structure over such stream, the person build- ing it is liable oniy in case of negligence or unskilfulness in the manner of doing the work, to one suffering injury from its inter- ference with the running water. Abbott v. Kansas City, St. J. &• C. B. R. Co., 20 Am. &» Eng. R. Cas. 103, 83 Mo. 271, 53 Am. Rep. 581. The erection and maintenance of a bridge in such a position that it forms an obstruc- tion to the flow of waters and causes a periodical overflow of the adjacent lands is a continuing nuisance, in consequence of which a recovery is limited to damages which may have accrued before an action is brought ; and a judgment in one action is not a bar to a second action brought for damages sustained thereafter. Omaha &* R. V. R. Co. V. Standen, 34 Am. &» Etig. R. Cas. 179, 22 Neb. 343, 3S A^. W. Rep. 183. A railroad company is liable in damages for building a bridge across a river, with a pier turned obliquely to the course of the river in such a manner as to turn the water of the stream, in time of freshets, upon the plaintiff's grass-line, thereby throwing sand and earth upon it, and gullying and washing away the same, it appearing that the bridge could, at an additional expense, have been erected, with safety to the railroad, in such a manner as not to injure said land. Held further, that the plaintiff was not estopped from maintaining his action for the damage so caused to his land by reason of having previously, by deed, conveyed to the said railroad corporation a portion thereof for the purposes of a railroad, and, in consid- eration of the purchase-money, released all claim for damages which might be awarded by commissioners, inasmuch as the commis- sioners could have appraised and awarded only such damages as would have resulted from the construction of the road in a legal and proper manner. Spencer v. Hartford, P. 6- F. R. Co., 10 R. I. 14, 6 Am. Ry. Rep. 150. A railroad company, although authorized by law to construct its road across a stream, is liable for damage done to lands adjacent thereto by the construction of a bridge which causes the water and ice to gorge and over- flow such land ; and in the selection of the character of bridge to be built, due regard must be had to the rights of the adjacent landowners, as well as to the safety of the public who may travel over its road, or who may require the use of the same for the transportation of property. McClcneghan v. Omaha in a legal Hart/ord, '. Ry. Rep. luthorized a stream, s adjacent dge which and over- ion of the lie regard adjacent ;ty of the d, or who e for the '^Uneghan >>• Eng. R. op' 35° — '.o.v. Fin- 3 Omaha >. QUOT- 12 N. Y. ~ ifl's land lents, the hey find, nkments he safety of passengers and property passing over the road, and that it was built, constructed, and erected with care, skill, and prudence, not only as to the safety of persons and property passing over the road, but also for the pro- tection and safety of the property-holder, they must find for defendant. Terre Haute &• I. R, Co. V. McKinley, 33 Ind. 274. 40. Collisious with the bridge piers. — Where the owners of vessels sue to recover for damages thereto caused by the imperfect construction of a railroad bridge, and no question is made as to the probable profits of the voyage, the proper measure of damages is the chartered value of the boat during the time it is detained and the cost of necessary repairs. Missouri River Packet Co. v, Hannibal Eng. R. Cas. 506. Where plaintiff's vessel was damaged by reason of a sunken pontoon, kept in the channel of the river by the railroad com- pany, having changed the course of the cur- rent so that the vessel was thrown against a bridge pier unlawfully constructed and maintained by the defendants, and the acci- I D. R. D.— 45. dent was due to both causes, there should be a recovery for the injury sustained. Mis- souri River Packet Co. v. Hannibal &* St. J. R. Co.. I McCrary {U. S.) 281 j 2 Fed. Rep. 285.— Distinguished in Silvers. Missouri Pac. R. Co., loi Mo. 79. Quoted in Mis- souri River Packet Co. v. Hannibal & St. J. R. Co., 20 Am. & Eng. R. Cas. 275, 79 Mo. 478. Where a railway company, having law- ful authority so to do, crosses a public navigable stream or watercourse with its road, erecting in a proper manner the proper and necessary structures for such crossing, occupying therewith the space and no more than the space permitted to it, and so erects and uses such structures as that they shall not unnecessarily abridge or destroy the use- fulness of such stream to the public as a navigable highway, using in a proper man- ner a movable drawbridge by which it crosses that part of such stream left open for the public navigation thereof, it is not liable for injuries resulting to vessels navi- gating such stream from coming in contact with obstructions in the open space or chan- nel of water under such drawbridge, when such obstructions are present without fault on such company's part. The open space left to be temporarily spanned from time to time by the railway's drawbridge is left not only to the free use, but to the control and care of the public ; and the railway company is under no more obligation to keep it free of obstructions, present without its agency, than it is to care for any other part of the channel of such stream. Pensacola &> A. R. Co. v. Hyer, 32 Fla. 539, 14 So. Rep 381. 2. Personal Injuries, 60. Generally.*— A bridge at which an injury occurred was thirty or forty feet long and sixteen feet high, was in the limits of a city, and over a public street in the immedi- ate vicinity of the railroad. It had been covered by defendants, but was uncovered at the time of the accident for repairs, and plaintiil, in attempting to get upon the cars at midnight, fell through the bridge. Held, that it was the duty of the company to have the bridge covered or, if uncovered for re- pairs, so protected as to prevent such in- juries. Chicago &* N. W. R. Co. v. Fillmore, 57 ///. 265, to Am. Ry. Rep, 462. • Personal injuries resulting from negligence in the construction of bridges, see note, 27 Am. & Eng. R. Cas. 314. I ^■1?: 706 BRIDGES-VIADUCTS, 51,62. For a failure to perform its duty as to the constructing and keeping in repair of its bridges a company is responsible to a trav- eller who sustains personal injury by reason of the defective condition of a bridge. Ca/tf- well V. Vicksburg, S. &> P. R. Co., 39 Am. &» Etig. R. Cas. 245, 41 La. Ann, 624, 6 So. Rep. 217. It being the duty of a railroad company in constructing its bridge to make the lateral embankments adjoining the highway so as not to render them dangerous to foot-pas- sengers by day or night, a failure to perform this duty will render the company liable to a passenger injured there, even though he may have accidentally deviated from the highway. Baltimore &* O. R. Co. v. Boteler, 38 Md. 568, 10 Am. Ry. Rep. 506. A railroad comp<\ny in repairing a bridge put down a plank, the edges of which stood above those on either side, and failed to bevel it down, and in walking across the bridge plaintiff struck his foot against tlie edge of the plank and fell and was injured. Held, in a suit to recover for the injury, that both the negligence of the defendant and the contributory negligence of the plaintiff were questions for the jury. Kelly v. New York C. &* H. R. R. Co.. 29 N. Y. S. R. 646, 9 A^. Y. Supp. 90, 56 Hun 639. A street-railway company which uses ap- proaches in the street to its bridge, con- structed of plank, is liable to one who is injured while passing along the street by falling over a board which lias become loose and is allowed to project into the street. Murphy v. Suburban Rapid Transit Co., 40 N. Y. S. R. 228, 15 iV. K Supp.Zyj. 51. Injuries to passengers.— In the absence of proof that the safety of a prop- erly constructed railroad bridge may depend upon the soundness of a single iron rod, the jury should not be instructed that if the bridge broke down because of a defect in such single rod, which was not discoverable, and the injury to a passenger resulted there- from, there could be no recovery. Bedford, S., O. &* B. R. Co. v. Rainbolt, 21 Am. &■* Er^. R. Cas. 466, 99 Ind. 551. The inability of the company, for want of means, to build a better bridge constitutes no defense, for the company ought not to have undertaken to carry passengers until it could do so with safety. Oliver v. New York 6f E. R. Co., i Edm. Sel. Cas. (N. Y.) 589. Where a passenger sues for an injury re- ceived by being precipitated through a bridge which was being repaired, it is not sufiicient to rebut the presumption of neg- ligence on the part of tlie carrier, to show that it was using the means and appliances ordinarily employed by prudent persons in making such repairs, without also showing that they are ordinarily sufficient, and that they were without known or discoverable defect, and were used with the utmost practical care and diligence. Louisville, N. A. <&* C. R. Co. V. Pedigo, 27 Am. &* Eng. R. Cas. 310, 108 Ind. 481, 8 N. E. Rep. 627. Plaintiff, who was a passenger on one of defendant's cars, while crossing a canal bridge was injured by the breaking of an attachment to the bridge, which was defec- tive when placed in position, the defect being discoverable by the maker in the pro- cess of manufacture, but not discoverable from any examination that could be made by any person using the bridge for crossing. The plan and method of construction of the bridge were approved by and it was bi'ilt under the direction and supervision of the proper state officers ; it had been in position and use for over a year, and nothing had occurred to raise a doubt as to its entire safety. Held, that an action was not main- tainable against defendant to recover dam- ages for the injury. Birmingham v. Roches- ter, C. &• B. R. Co., 137 A^. Y. 13, 32 A^. E. Rep. 995, 49 N. Y. S. R. 888; reversing 63 Hun 635, 45 A^. Y. S. R. 724, 18 A^. Y. Supp. 649. In an action for injuries to a passenger caused by a bridge breaking down, it is a question for the jury whether the company engaged the services of competent engi- neers, who had adopted the best methods and had used the best material. If the company has done this it is not liable ; but the mere fact that it has engaged the ser- vices of such a person will not relieve it from the consequences of an accident aris- ing from a deficiency in the work. Grote V. Chester its entire s not main- cover dam- m V. Roches- 3, 32 A^. E. ''tg 63 Hun . Supp. 649. I passenger iwn, it is a le company etent engi- st methods rial. If the liable ; but d the ser- t relieve it :ident aris- jrk. Grote lxch.2$i, 5 es.*— Rail- ' the safety ired to an- ead bridges, 6. to employes ote, 53 Am. a defective 385 abstr. ticipate and guard against every possible danger, but only such as are likely to occur. So a company is not liable for the death of a brakeman whose train was stopped on a bridge at night, which was being repaired, and who fell througii and was killed. Koonts V. Chicago, R. I. (S- P. R. Co., 18 Am. &* E/tg. R. Cas. 85, 65 /ozva 224, 54 Am. Rep. 5, 21 A'. W. Rep. 577. Where a servant of a railway is killed in consequence of the giving way of a wooden bridge, which is defective through age, the company cannot escape liability by show- ing that the bridge was constructed properly in the first place, and that it employed skil- ful and competent subordinates to inspect and repair its bridges. Toledo, P. &* IV, R. Co. V. Co/troy, 68 ///. 560. Where there has been an unusually severe storm since a bridge was inspected, the question whether a railroad company is negligent in sending out a work-train with- out making inspection as to the condition of the bridge over which such train must pass, is for the jury. Con/on v. Oregon, S. L. &* U. N. R. Co., 53 Am. &• Eng. R. Cas. 356, 23 Oreg. 499, 32 Pac. Rep. 397. 53. Frightening tcani8.— Where no defect of construction in a railroad bridge crossing a city street is shown, but, on the contrary, ' was the work of competent engineers, approved by the chief engineer and siirveyer of the city, and was in pursu- ance of an ordinance of councils authorizing it, the company cannot be held responsible for injuries resulting from the frightening of horses by the operation of its road over the bridge without negligence and without malice. Ryan v. Pennsylvania R. Co., 132 Pa. St. 304, 19 All. Rep. 81. 54. Who may be sued— Parties defendant.— AVhere a railroad company has constructed a bridge over a street of the proper height, it is not bound to raise the bridge from year to year as the street may be raised by the municipality, by plac- ing gravel or earth thereon; and as the municipality alone could make repairs to the streets, it alone is liable for an injury received by a party while passing under the bridge by reason of the earth having been raised, so as to cause him to come in con- tact with the bridge overhead. Gray v. Danbury, 29 Am. &* Eng. R. Cas. 486, 54 Conn. 574, 10 All. Rep. 198. Conn. Rev. St. 232, § 10, does not make a railroad company liable where the injury resulted from the negligence of the party bound to keep the highway in repair. Gray V. Danbury, 29 Am. &* Eng. R. Cas. 486, 54 Conn. 574. 10 All. Rep. 198. Where a railroad company is authorized to maintain a bridge over a highway, and it becomes necessary to rebuild, and the company is not, in the opinion of the town selectmen, proceeding with necessary despatch, their whole duty is discharged by urging the company to proceed with more haste, and then applying to the dis- trict attorney and county commissioners, and filing a complaint with the railroad commissioners ; and after doing so the town is not liable to a traveller injured on the highway under Mass. Pub. St. ch. 52, § 18; and the selectmen have no right to forcibly tear down and remove a temporary bridge erected by the company which they claim obstructs the highway. Elanders v. Norwood, 141 Afass. 17, 5 A^. E. Rep. 256. Where a railroad company is charged with the duty of keeping in proper repair a bridge and the approaches thereto, which form part of a highway, the town is not liable for injuries resulting from defects therein, though it may have contributed within six years to keeping the same in repair. W^ilson \. Boston, 117 Mass. 509. — Qualifying Commonwealth v. Deerfield, 6 Allen (Mass.) 449. A railroad company upon constructing their road along the bank of a stream built a bridge for travel over it, and closed up a fording previously used. Held, that the bridge became a public highway, and the township was liable for injury arising from its being negligently out of repair. Tp. of Newlin v. Davis, 77 Pa. St. 317, Where a railroad appropriates a part of a public road and builds a bridge over its roadbed as a substitute for the part of the road appropriated, the railroad and the township do not stand in any relation to which the rule of respondeat superior ap- plies. They are independent parties, each charged with a duty to the public involving liability to an individual specially injured by a neglect of such duty. Neither can escape liability by alleging the primary lia- bility of the other. Gates v. Pennsylvania R. Co., 150 Pa. St. 50, 24 All. Rep. 638. 55. Contributory negligence. — (1) What is. — In the construction of a railroad across private property the com- pany raised an embankment at a travelled :jl m W ilii M Mil ro8 BRIDGES— VIADUCTS, 56, 57.' ;.'■ 'i ■. S| Sf'l '3 I road, which had never been establislied or maintained as a public iiighway, and con- structed a three-span trestle a short distance away, under which the public passed there- after, generally going under the middle span as it was higher than the others. PiaintilT, to avoid the mud under the middle span, attempted to cross under one of the end spans on a loaded wagon and struck the trestle, on account of its being low, and was injured. The company had done nothing to indicate that the passage under tlic trestle was opened as a highway, //t/ii, in an action to recover for the injury, that the company was entitled to an instruction to the jury that, if they believed from the evi- dence that tiie company did not construct the trestle for the purpose of an undergrade crossing, and did nothing to induce plaintifl to believe that it was so intended, they must find for the company. Gu//, C. &* S. F. R. Co, V. Montgomery, 85 Tex. 64, 19 S. W. Rep. 1015. In such case, even if it appeared that the railroad company intended the place as a public crossing, to entitle the plaintitT to recover it must have appeared that the place where the injury occurred was in- cluded, it appearing that the middle span was a safer place. Gulf, C. &» S. F. R. Co. v. Montgomery, 85 Tex. 64, 19 5. W. Rep. 1015. Where plaintiff goes upon a railroad bridge, contrary to directions and knowing that it is defectively constructed, he can- not recover from the company for injuries received. Carney v. Caraquet R. Co., 29 New Brun. 425. (2) What is not.— Where a person, trav- elling on horseback, attempted to cross a bridge constructed and maintained by a railroad company as a portion of a crossing over its right of way, and such bridge was the only practicable crossing for him in the direc- tion in which he was travelling, he was not guilty of negligence contributing to injuries caused through defects in such bridge, al- though he attempted to cross in the knowl- edge of such defects. Gulf, C. &* S. F. R. Co. V. Gasscamp, 34 Am. &• Eng. R. Cas. 6, 69 Tex. 545, 7 S. IV. Rep. 227. It is the duty of a railway company to keep a bridge over its track in such a state as not to be dangerous to any one using it in a lawful manner, and a child four years of age, falling through an opening in the orna- mental ironwork with which the bridge was fenced, is not guilty dI contributory negligence. Lay v. Mid/and R. Co., 34 L. T. 30 Ex. D.; reversing s. c, 30 L. T. 529. (3) Question of fact. — The question whether a party in attempting to cross a bridge on a totally dark night without any light was wanting in proper care and dili- gence is one of fact and not of law. Swift V. Newbury, 36 F/. 355. 56. Doclartitioii. — Where a railroad company is bound to keep a bridge forming part of a highway in a town in repair, no- tice to it that a person has been injured " by a defect in the bridge" is not sufficiently explicit in designating the cause of the in- jury, as is required by Mass. St. of 1877, ch. 234i § 3; and a complaint against the com- pany, in an action to recover for injuries by reason of such defect, is bad on demurrer that alleges the cause of action in such gen- eral way. Dickie v. Boston 6- A. R. Co., 8 Am. &* Eng. R. Cas. 203, 131 Mass. 516. Before a person can maintain an action against a company for injuries received by means of a defective bridge forming part of a highway, and which the company is bound to keep in repair, he must give the notice required by Mass. St. of 1877, ch. 234, k) 3; and a declaration which does not aver the giving of such notice is bad on demurrer. Dickie v. Boston &• A. R. Co., 8 Am. 6- Eng. R. Cas. 203, 131 Mass. 516. 67. Evidence.— Where a company is sued for the death of a passenger caused by a bridge giving way, proof of a new bridge being subsequently constructed in a differ- ent manner is an admission that the one causing the injury was improperly con- structed ; but it does not amount to an ad mission that the defects were due to negli- gence. Kansas Pac. R. Co. v. Miller, 2 Colo. 442, 20 Am. Ry. Rep. 245. " Where a railway was sought to be charged with the death of a person resulting from a defective bridge, the company's bridge build- er's opinion, as an expert, whether the acci- dent WHS caused by defects in the bridge or not, was not admissible, the condition of the bridge being shown by other witnesses, they testifying to facts. Toledo, P. 6- W. R. Co. v. Conroy, 68 III. 560. If a brick falls from a railway bridge over a highway, and injures a person passing be- neath, there is prima-facie evidence from which the jury may infer negligence on the part of the company in keeping the bridge. Kearney y. London, B. &* S, C. R. Co., L. R itributory Co., 34 Z. T. 529. question o cross a Lhout any and dili- w. S7t>t// BRIDGJiS VIADUCTS, 58-«0. 70!) s G //^i'. 30/-/ Q- //• 200, 18 ir. K. 1000. 23 L. r, 886 ; affirmed 40 Z./. g. i9. 285. /.. K. 6 (2- ^'. 759. 24 ^- 7". 913, 20 W. R. 24. 08. InHtructioiis.— In a suit against a railway 10 recover for a personal injury re- ceived in consequence of a defective bridge, un instruction which seeks to make defend- ant's liubil Ity depend upon actual knowledge of the defects, and leaves out of view the obligation resting upon the company to use all reasonable means to acquire knowledge of ihe condition of its road, bridges, and other structures, is properly refused. Toledo, P. &* W. R, Co, v. Conny, 68 ///. 560, III. BBID0K8 OTBX HAVIOABLB WATEB8. I. In General. 50. Authority to construct, gen- erally. — The right to bridge a navigable stream must be clearly and explicitly given ; and it will not be implied simply because a navigable stream intervenes between the terminal points of the chartered right of way of a railroad. In such case the road must be carried across the stream upon such structures or in such a manner as not to seriously impair the usefulness of the stream for the purpose of navigation. Little Rock, M. R. r/. AV/. 9. The ri){lit given to the Pac. Railroad Company in its original charter by implica- tion to bridge the Missouri river between Omaha and Coiiiiril Hhifls, and expressly conferred by the act of Congress of July 2, 1874, was not repealed, but increased, recog- nized, and regulated by the act of February 24, 1871, entitled "An act to autiiorize the Union Pacific Kiiii.oad Company to issue its bonds to construct a bridge across the Missouri river at Omaha, Neb., and Coun- cil UlulTs, Iowa." United States v. Union Pac. R. Co., 4 Diil. (U. S.) 479. A railroad road company was enjoined from erecting a bridge across a navigable river. Pending the case and after a prelimi- nary injunction had issued, congress |)assed an act legalizing the structure. Held: (1) that it was competent for congress to legalize the bridge under its power to regulate com- merce ; (2) that the act gave the rule of decisions for the court at a final hearing. Grav V. C/ticago, I. «S- A'. R. Co., 10 Wall. (t/.'5.)4S4. 01. Authority given by Htate Htat- utes.— (I) Generally. — The states may au- thorize the construction of bridges over niivigable rivers within their boundaries, until congress intervenes and supersedes the authority. The power of congress is exclusive only as to matters that arc na- tional in their character and require uni- form regulations. Cardwell v. American River Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423. — Followed in Hamilton v. Vicksburg, S. & P. R. Co., 119 U. S. 280; Rhea v. Newport News & M. V. R. Co., 52 Am. & Eng. R. Cas. 657. 50 Fed. Rep. 16. States may authorize the bridging of nav igable streams, if such authorization does not conflict with the United States consti- tution and laws. Wilson v. Blackbird Creek Marsh Co., 2 Pet. (U. S.) 245.— Followed IN Rhea v. Newport News & M. V. R. Co., 52 Am. & Eng. R. Cas. 657, 50 Fed. Rep. 16. Quoted in Easton v. New York & L. B. R. Co., 9 Phila. (Pa.) 475- A state legislature may authorize the building of a bridge or other structure tending to obstruct the navigation of a navigable ri /er which is altogether within its own own boundary, so long as congress does not interfere. Green &• B. R. Nav. Co. V. Chesapeake, O. &* S. W. R. Co., 37 Am. 6- Eng. R. Cas. 238. 88 Ky. i, 10 S. W. Rep. 6. —Following Green & U. R. Nav. Co. ?'. Palmer, 83 Ky. 646. QuoriNO Hamihon V. Vicksburg. S. & P. R. Co., 1 19 U. S. 280. — Followed in Rhea v. Newport News tk. M. V. R. Co., 52 Am. & Eng. R. Cas. 657, 50 Fed. Rep. 16. When a navigable river is entirely within the boundaries of a state, the state legislat- ure may authorize the building of a bridge or other structure which tends to obstruct the navigation, and such power is only lim- ited by the constitutional provision confer- ring u|K)n congress the right to regulate commerce between the states, when con- gress has declared that such obstructions are an unlawful exercise of the power of the state. Green &* B. R. A'av. Co. v. C/iesa- peake, O. 6- .V. W. R. Co., yj Am. .'s Appe.l, 79 Pa. St. 257. The authority to build a bridge over a navigable stream is implied from the powi r to construct a railroad over such stream. Works v. /unction R. Co., $ McLean ( U. S. 1 425. The right to cross a navigabl'* ^'^ , a railroad bridge must be g the sovereign power, by a gener. special act. Where this is not done, ilierth< state board of public works of Ohio nor the acting commissioner thereof can appro\c of the building of a bridge over it. lVo> ks s. Junction R. Co., 5 McLean {U. S.) 425. (2) California. — The State of California was admitted into the Union by an act con- taining a provision to the effect that its navigable waters should be "common high- ways and forever free." Held, that this did not prevent the state from conferring au- thority upon a company to bridge a navi- gable stream. People v. Potrero &* Ji. V. R. Co., 67 Cal. 166, 7 Pac. Rep. 445. (3) Kentucky. — The state of Kentucky, having improved the navigation of the Green and Barren rivers by means of locks and dams, incorporated a navigation com- :' h HKIIXJKS- VIADUCTS, «2-«4. 711 fav. Co. 7'. Hutnilion U. S. 280. rt News A :as. 657, 50 cly within tc letjislai- f a bridge fj obstruct only lim- oti coiifcr- regulate hen ciin- •structions wcr of the V. Uiesii- . <&>• Jui^. Ri-p. 6.~ p. S & I'. 90, 119 U. a railroad its road it became river, the able nian- r. Pennsyl- 57.-Di,s- 's Appe.,|. ge over a the povvi r h stream. an (U. S.\ < •> tlic special iiher th( nor t' I.' 1 appro , (• s.) 425. California I act con- that its ion high- t this did rring au- : a navi- S- /)'. /'. Kentucky, of the of locks ion com- pany and leased to it " the (irecn and Bar- ren river line of navigation, together with the grounds, houses, etc., and all the franchises thereunto belonging or ap- pertaining." The lessee was required to keep the line of luivigation in repair and to permit water-craft to navigate tlie rivers upon the payment of tolls. //eM, that the navigation company only acquired an exclusive right to the use of the locks and dams and other improvements, that its interest in the right of navigation was the same as belonged to the public generally, and that the state might, without impairing any contract entered into by it, authorize a railroad company to construct a bridge across the river. Green &* B. R, Nav. Co. V. Chesapeake, O. . i, 10 S. W. Rep. 6. The repair of the bridge having become necessary, the railway company gave notice to the navigation company of its intention to execute the necessary repairs. The re- pairs were made at a time of the year when the work was likely to interfere with naviga- tion least, and no unreasonable delay took place. Helil, that the railroad company was not bound to adopt an unusual and expen- sive course in executing the repairs for the purpose of leaving the navigation entirely free, and that any loss sustained by the navigation company from the interruption was damnum absque injuria. Green &* B. R. Nav. Co. v. Chesapeake, O. &* S. W. R. Co., 37 Am. &^ Eftg. R. Cas. 238, 88 Ky. i, 10 5. W. Rep. 6. (4) South Carolina. — A statute provided that a railroad company might bridge a navigable river, although the bridge might not be of sufficient height to permit steamboats to pass without lowering their smoke-stacks, but that the company should pay all the expense which any steamboat might incur by reason of any alterations which might be rendered necessary and by the necessity of lowering the smoke-stacks of such steamers. Held, that, under this statute, owners of steamboats could not recover such damages as resulted to them which were common to the public gener- ally, or for expenses incurred by having to keep boats both above and below the bridge, or for other expenses not coming within the terms of the statute; and the fact that the owners of such boats were a corporation would give them no greater rights than were given to individuals. Soitlh Carolina Stiamhnit Co. v. South Caro- lina R. Co., 30 So. Car. 539, 4 /,. /\', ./. 209, 9 .S'. E. Rep. 65o.~Di,STiNGUisiiiN(i Crouch V. Charleston & S. R. Co., 21 So. Car. 495. (5) WVift>«.y/«.— The Wisconsin legisla- ture may authorize the construction of bridges across the navigable waters leading into the Mississippi river, but such bridges must be so constructed and maintained as not materially or unnecessarily to obstruct navigation. Sweeney v. Chicago, M. &* St. P. R. Co., 20 Am. &• Eng. R. Cas. 268, 60 IVis. 60, 18 A'. W. Rep. 756. 02. Autliority kIvcii liy 20 Vic. cli. 12. — At the time a railroad company built a fixed bridge across a navigable river the law made such bridges unlawful, but be- fore a bill was filed to remove the bridge, the law was changed so as, inter alia, to provide that it should not be lawful for a railway company to substitute any swing, draw, or other movable bridge in the place of any fixed bridge, without the con- s'*nt of the governor in council, held, that tlie law legalized the bridge and that the bill would not lie. Cull v. Grand Trunk R. Co., 10 Grant Ch. (U. C) 491. It would seem that in such a case the bill should be by the attorney-general, the stat- ute referred to having been passed for the general benefit of the public. Cull v. Grand Trunk R. Co., 10 Grant Ch. {(/. C) 491. Oil. Authority ^ivcii l>y iiiiiniviiml ordinance. — A bridge built by a railway company over a navigable stream within the limits of a city, for the use of the rail- road, under an ordinance of the city grant- ing permission and providing the manner in which it should be built, may be regarded as having been constructed by the city, and as falling fairly within the power given to it to construct and repair bridges and regulate the use thereof. McCartney v. Chicago &* E. R. Co., 29 Am. Sf Eng. R. Cas. 326, 112 ///. 6ri. 04. Authority given by company's charter. — A provision in the charter of a railroad company to build by a designated route which crosses navigable streams, con- tains the implied right to the company to bridge the streams. People v. Potrcro &* B. V. R. Co., 67 Cal. 166, 7 Pac. Rep. 445. A declaration, the gravamen of which was that the defendants had built a railroad bridge over navigable water — held, bad on demurrer, it appearing to the court, from the charter of the defendants and its sup- % i ;;i; 713 BRIDGES-VIAUUCTS, «r.-«8. It ! plement, that they were authorized to ex- tend their road over the waters in question, and to erect bridges over all navigable waters in the line of such extension. 5/^- phens &* C. Transp. Co. v. Central R. Co., 33 N.J.L. 229.— Distinguished in Weber V. Morris & E. R. Co., 35 N. J. L. 409. 05. Bridging river whicli is boundary between states.*— Under its power to regulate interstate commerce, congress may authorize the bridging of a navigable river which forms the line be- tween two states, though one of the states refuses to give its consent thereto. Penn- sylvania R. Co. V. Baltimore S- N. V. R. Co., 37 Fed. Rep. 129. 66. Powers and duties of commis- sioners. — Under the provisions of 3 Cur- wen, Ohio Rev. St. 1852, § 20, either the board of public works or the acting com- missioner thereof, within his district, may approve the plan of a proposed bridge across a navigable stream, and as the law provides for no appeal in such case, the decision of such commissioner in favor of a proposed railroad bridge is final. Works v. Junction R. Co., 5 McLean {U. S.) 425. Compare Waterbury's Appeal, 57 Conn. 84, 17 All. Rep. 355. 67. Powers and duties of the sec- retary of war. — Congress has the right to regulate the building of bridges across the Mississippi river, and it may delegate the power of so regulating them to the head of one of the departments of the gen- eral government, such as the secretary of war. United States v. Milwaukee &* St. P. R. Co., 5 Biss. {[/. S.) 410. Under the acts of congress of April i and June 4, 1872, the secretary of war has a right to declare that a bridge across the Mississippi river at any particular place shall not be built, having first determined that it would seriously affect navigation. United States v. Milwaukee «S- St. P. R. Co., I Biss. (U. 5.) 410. The power of the secretary of war, under acts of congress, to consent to or disapprove of bridges across the waters of the Missis- sippi being undoubted, his disapproval in a given case will not be disregarded by the courts, though technically it is not in such form as it should have been, but where there * Power of congreis with respect to bridging navigable streams which are buuiidary lines be- tween sutet, see 37 Am. & Eng. R. Cas. 244, aistr. is sufficient to make his disapprobation ap- parent. United States v. Milwaukee 6- St. P. R. Co., 5 Biss. (U. S.) 410. Where the plans of a proposed bridge across the Ohio river, to be erected under the act of congress of December 17, 1872, have been submitted to the secretary of war and approved bv a board of engineers ap- pointed to examine them, with a dike 300 feet long, after the structure is nearly com- pleted it is not competent for the secretary of war to order the company to construct a dike 918 feet long, and the company need not comply with such order. United States e.r rel. v. Pittsburgh &* L. E. R. Co., 26 Fed. Rep. 113. 68. Sufficiency— Must conform to the requirements of law.* — When a company bridges a navigable stream under authority of law, the bridge must be con- structed and maintained in conformity with the requirements of the law. Bailey v. Philadelphia, W. 6- B. R. Co., 4 Harr. {Del.) 389. Where a company is proceeding to erect a bridge across a navigable stream under an act of congress, the United States may maintain a suit to compel compliance with the terms of the statute, or to abate the bridge. United States ex rel. v. Pittsburgh &> L. E. R. Co., 26 Fed. Rep. 113. ' :e authority from congress, or from a siatt, to bridge a navigable stream does not make the bridge a lawful structure unless it conforms to the law authorizing it. Pennsylvania R. Co. v. Baltimore &• N. Y. R. Co., yj Fed. Rep. 129. Under the act of congress of July 25, 1886, authorizing the construction of a bridge across the Missouri river at Kansas City, but providing that such bridge, if a drawbridge, shall be built "with spans of not less than 160 feet in length in the clear on each side of the central or pivot pier of the draw, and the pier of said bridge shall be parallel with the current of the river," the distance of the spans must be obtained by measuring along a line, between the piers, drawn perpendicularly to the faces of the piers and the current of the river ; and a bridge measuring less than 160 feet between the piers, so calculated, although having a span of 160 feet measuring along the line of the bridge, is not a lawful structure. Han- nibal &• St. J. R. Co. v. Missouri River *SeeaM/«, 21. 1; i BRIDGES— VIADUCTS, «0, 70. 713 Packet Co., 34 Am, &» Eng. R. Cas. 157, 125 U. S. 260. 8 Sup. a. Rep. 874. Where the charter of a railroad company requires it to construct a suitable bridge over any navigable stream tiiat may be crossed, and requires that such bridge shall be located at a point convenient for naviga- tion, in the absence of any allegation of want of care or good faith in the selection of the location of such bridge, the company is not liable at tlic suit of an individual who claims to have been damaged from a mis- location of the bridge. If the company has not exercised good faith in the matter the remedy is by a suit in the name of the state. Stephens &* C. Transp. Co. v. Central R. Co., 34 A^. /. L. 280.— Quoting Clarke v. Birmingham & P. Bridge Co., 41 Pa. St. 147. —Followed in Attorney-General ex rel. V. New York & L. B. R. Co., 24 N. J. Eq. 49- A statute authorizing a company to bridge a navigable river, but providing that the bridge should be at least 42 feet high, re- quires it to maintain the structure that height, in a case where the bed of the river is filled up after the bridge is constructed ; and though a first bridge may be of the required height, a second bridge erected after the river is filled, which is not 42 feet high, is a violation of the statute. State v. South Carolina R. Co., 28 So. Car. 23, 4 S. E. Rep. 796. Special damages attending the noncon- formity of a railroad bridge over a naviga- ble stream with the requirements of the statute by virtue of which it was con- structed are actionable. Bailey v. Phila' deiphia, W. &• B. R. Co., 4 Harr. {Del.) 389. 2. Drawbridges. a. In General. 69. Authority to construct. — Where a railroad company is authorized to erect a drawbridge over a navigable stream, per- sons interested in its navigation cannot because of any contract between the legis- lature and the plaintiffs maintain an action to prevent the erection of the bridge, on the alleged ground that it will inconvenience tlie navigation of the river. Each interest, as against the other, is entitled to all of a reasonable construction that the grant will justify. Attorney-General ex rel. v. New York l, which cut off the water connection. Held, that a court of chancery would not grant the prayer of the bill, /oliet 6- C. R. Co. v. Hea/y, 94 ///. 416. 71. Sufflcleiicy. — A bridge company built a bridge over the Missouri river, under authority of an act of congress, which pro- vided that such bridge should not interfere with the free navigation of the river, beyond what was necessary in order to carry into effect the rights and privileges granted the act ; that if built as a drawbridge it should be a pivot drawbridge, with the draw over the mam channel of the river at an accessi- ble and navigable point, and with spans of certain length on each side of the pivot pier, and that the piers should be parallel with the current. The bridge company built their bridge with two draw-rests, one above and the other below the pivot pier, and one hundred and forty feet distant from it. Afterwards the brWge company leased the bridge structure to the defendant. Three years after, plaintiff's boat, while attempting to go through the draw during a high stage of water, was driven against one of the piers by the current and sunk. The plain- tiff charged that the piers were not parallel to the current, and that the draw-rests above the bridge caused a cross-current which drove the boat against the pier. He/d, that if the bridge was so built that the piers were parallel to the usual and ordinary course of the current it was a sufficient com- pliance with the act, and that this question was properly one for the jury. Silver v. Missouri Pac. R. Co., 44 Am. &* Eng. R. Cas. 467, 101 Mo. 79, 13 S. W. Rep. 410. There being no evidence tending to show that the draw-rests were unauthorized structures, that issue should not have been submitted to the jury. Silver v. Missouri Pac. R. Co., 44 Am. &• Eng. R. Cas. ^67, loi Mo. 79, 13 iS". W. Rep. 410. Under the act of congress of July 26, 1866, authorizing the construction of certain bridges and providing that the spans on each side of a drawbridge built with a pivot should be at least 160 feet wide in the clear aftd parallel with the current of the river, in ascertaining whether a span is of the re- quired length the measurement must be on a line running at right angles with the cur- rent. Missouri River Packet Co. v. Hanni- bal &» St. J. R. Co., 20 Am. Sf Eng. R. Cas. 275, 79 Mo. 478. Attorney-General ex rel. V. New York &* L. B. R. Co., 24 N. J. Eg. 49- 72. Not deemed nnisances.'*' — The erection of bridges over rivers, with proper draws, so constructed and placed as to do the least possible injury to navigation, has never been held to be a nuisance. The slight but unavoidable obstruction which such bridges occasion is a necessary evil which must be borne for the sake of the public good which demands it. Attorney- General V. Paterson &* H. R. R. Co., 9 N. J. Eg. 526.— Distinguished in Attorney-Gen- eral ex rel. v. New York & L. B. R. Co., 24 N. J. 49. Quoted in Raritan Tp. v. Port Reading R. Co., 49 N. J. Eq. 1 1. Reviewed in Stevens v. Paterson & N. R. Co., 20 N. J. Eq. 126. 73. Wideningr the draw. — - Where the commonwealth owns a drawbridge over a navigable stream its right to widen the draw is not aifected by the fact that it has granted to a street-car company the right to run cars over the bridge, and that the same will be temporarily interrupted by widening the draw. Middlesex R. Co, v. Wakefield, 103 Mass. 261. 74. Speed of train while on bridge. — Where a railroad drawbridge over a nav- igable river is approached on one side by a very long trestle, and where the rules of a company and a statute, conceded by coun- sel to be applicable, require trains to 'sfow down to a speed of not more than four miles an hour before running on or crossing * See post, 88. BRIDGES— VIADUCTS, 75-77. 716 5- Eftff. Jf. p. 410. ig to show authorized have been r. Missouri f. Cas. 467, )f July 26, I of certain spans on itli a pivot n the clear the river, of the re- nust be on th the cur- , Hanni- ig. R. Cas. ral ex rel. N. J. Eg. 88.* —The itt/i proper 1 as to do gation, lias ince. The ion which essary evil ake of the Attorney- Co., 9 A^. /. 3rney-Gen- R. Co., 24 'p. V. Port Reviewed 'o., 20 N. J. I — Where )ridge over widen the that it has the right d that the rupted by R. Co. V. n bridge. }ver a nav- e side by a rules of a i by coun- s to '• sfow than four 3r crossing any drawbridge," the restriction as to speed applies to the bridge proper and not to the trestle or approach thereto. This is matter of construction for the court, and not a question of fact for the jury. If tiie speed of the train is so regulated that it will not be more than four miles an hour when it runs on the drawbridge, there is no viola- tion of the rule or of the statute in approach- ing the bridge. Savannah, /■ . &* W. R. Co. V. Daniels, 90 Ga. 608. b. Rights, Duties, and Liabilities with Respect to Passing Vessels. 75. Generally. — Where a railroad bridge with its draw closed is an obstruc- tion of a navigable river, parties using the river are not bound to notify the railroad company to open the draw every time they wish to pass through, nor are they bound to open tiie draw themselves, nor to use only such vessels as can pass under tlie bridge when the draw is closed. Gates v. Northern Pac. R. Co., 64 IVis. 64, 24 .V. IV. Rep. 494.— Quoting Smith v. Chicago & N. W. R. Co., 23 Wis. 267. Reviewing Hooper v. Chi- cago & N. W. R. Co., 27 Wis. 81. A railroad company authorized by its charter to erect a bridge over a navigable river, " provided that it does not unneces- sarily impair the usefulness of the river to the public," and requin.g it to construct a draw, is not entitled to i m injunction to re- strain towboats from passing the bridge with more than two boats in tow, at least before the company establishes its right by an ac- tion at law where defendant may have a trial by jury. Texas &* P. R. Co. v. Interstate Transp. Co., 45 Fed. Rep. 5. 76. Duty to open draw. — Under Massachusetts Pub. St. ch. 112, § 150, pro- viding that the superintendent of a draw- bridge shall at all hours of the day and night be ready to open it for the passage of vessels, but providing that " a railroad train shall be allowed fifteen minutes to cross a draw before and after it is due by its time- table, and any approaching train shall be allowed a further reasonable time to pass," a superintendent has no right to open the draw within the fifteen minutes provided by the statute. Jennings v. Fitchhurg R. Co., 146 Afass. 621, 6 A^. Etig. Rep. 269, 16 A^ E. Rep. 468. A railway company which has bridged an unnaviKable river is not required by § 15 of the Railways Clauses Act 1863 to open the span of the bridge for a barge with a mast so constructed that it can be lowered. IVest Lancashire R. Co. v. Iddon, 49 L. T. 600, 48 /■ P- '99. A railway company which has employed a contractor to construct a bridge in con- formity with the provisions of a statute forbidding the detention of vessels, is liable if, owing to some defect in the construction of the bridge, it cannot be opened and a vessel is prevented from passing. Hole v. Sittingbourne i^ S. R. Co., 6 H. &> N. 488, 30 L.J. Ex. 81, 9 IV. R. 274, 3 L. T. 750. A count in a declaration charging defend- ants with neglect and refusal to open a bridge and permit vessels to enter or leave a canal is defective, in not alleging that it was not at such times being actually used by defendants for the passage of their trains. Desjardins Canal Co. v. Great Western R. Co., 27 U. C. Q. B. 363. 77. Delay in opening draw.— A rail- road company which maintains a draw- bridge over navigable waters must exercise reasonable care, not only not to impede the safe navigation of passing vessels, but also to obviate any unnecessary delay to such vessels; and where the character of the water-way demands it, it must employ and enforce a system of signals by which ap- proaching vessels can be informed when a safe distance from the bridge whether they can proceed or must manoeuvre for delay. Central R. Co. v. Pennsylvania R. Co., ^SAni. &• Eng. R. Cas. 619, 59 Fed. Rep. 192. The opening of a draw in a railroad bridge was so delayed after signals that those in charge of a tug navigating her in the exer- cise of their best judgment were unable to avoid a collision with the bridge, whereby tiie tow sustained injury. Held, that the railroad company was liable because of its neglect to seasonably open the draw or to give proper notice of its intention to do so when the tow was sufficiently far away to permit proper precautions to be taken for its safety. Central R. Co. v. Pennsylvania R. Co.. 58 Am. 5- Eng. R. Cas. 619, 59 Fed. Rep. 192. Where a railroad company is authorized by an act of congress to construct a draw- bridge over a navigable rivt-r, such act pro- viding that it shall keep the draw " in effi- cient working condition at all times," the company is liable for delays to vessels caused by the draw being injured by a passing vessel, and consequently closed for several m i' If w If; I i'- m n\ n ^^p 716 BRIDGES— VIADUCTS, 78-82. h ■ days for repairs. Jones v. Baltimore &* P. R. Co., 4 Mackey (D. C.) io6. 78. Ri((ht to close draw.— The New Jersey act of 1874, providing that the owners of bridges may in certain cases ob- struct navigation, does not authorize an en- tire obstruction by closing drawbridges, un- less it be when work is being done on the bridges which requires that they be closed. Lister v. Newark Plank Road Co., 36 A^. /. Eq. 478. Which means of travel — the highway across the stream or the highway up and down the stream — is to be preferred is a question which can only be decided by the legislature. So held, where the owners of a railroad bridge, with a draw, claimed the right to close the draw and stop the naviga- tion of the river. Lister v. Newark Plank Road Co., 36 N.J. Eq. 477. The railway company had the control of a swing-bridge over a canal. Plaintiff's ship was navigating the canal at the same time that trains were about passing and re- passing the bridge. Notice was given of plaintiiif's vessel being about to pass by blowing a horn and hailing, and notice was given by the railway company's servants by signal (the usual and customary one) that the bridge could not then be swung, and in- jury was received by plaintiff's vessel from the bridge remaining closed. Held, that as the requirements of the railway traffic com- pelled the bridge to be closed, the company were not then bound to open the bridge, and were not liable for the injury occasioned the vessel. Turner v. Great Western R, Co., 6 U. C. C. P. 536. 70. Iiviuries to vesselM caused by defective «lpaw.s. — Knowledge on the part of persons navigating a river tiiat a draw in a railroad bridge is defective will not relieve the owners of the bridge from all responsibility ; neither is it such proof of contributory negligence as to authorize a court to order a nonsuit in an action for in- juries to a vessel. Crouch v. Charleston &* S. R. Co., 29 Aw. &* Eiig. R. Cas. 495, 21 So. Car. 495.— Distinguished in South Carolina Steamboat Co. 7a South Carolina R. Co., 30 So. Car. 539. South Carolina Gen. St. § in 5, provid- ing a forfeiture of $50 against all vessels, boats, or rafts passing under any bridge without dropping anchor and dragging through under the same, has no applicRtion where the owner of a vessel sues a company owning a bridge for injuries received while navigating the river by reason of a defective draw. Crouch v. Charleston &* S. R. Co., 29 Am. &* Eng. R. Cas. 495, 21 So. Car. 495. 80. Running train into open draw. — Where a railroad company negligently runs a train into an open draw, which it is bound to maintain, thereby obstructing the navigation of the river, it is liable to per- sons engaged in the navigation for delays caused thereby, though it uses due dili- gence to remove the obstruction. Brtggs v. New York C. /. Louis, I. M. &> S. R, Co. v. Meese, 44 Ark. 414. • Obstructinn of navigation of vessels in rivers, see note. 29 Am. & Eng. R. Cas. 494. Broken railroad bridge in a navigable river. Duty of company to remove debris, see 25 Am. ft Eno. R. Cas. 285, abstr. BRIDGES— VIADUCTS, 83, 84. M :eived while a defective S. R. Co., 29 Car. 495. [>eii draw. negligently which it is ructing the able to per- for delays s due dili- Briggsv. fun {N. Y.) entitled ictof 1874, indent of a icide which draw first, time; and ge was au- >t liable for n allowing CommoH' tendent of :wo vessels two apply me be sail- d by Mass. affected by ::t only ap- he passage nd has no !ls in con- ng vessels, structions. f. 7. n. '■ duty of e streams event the ;he piers, ice of the ivigatlon ; clear will es to ves- oper care R. Co. V. sin rivers, ible river. ee 35 Am. The owners of a wharf upon which rests the end of a railroad bridge, built across navigable water by authority of the legis- lature, cannot recover damages of the rail- road company under Mass. Rev. St. ch. 39> § S^i {or occupying with their bridge the space over the navigable channel, which would otherwise serve for a vessel's berth at such wharf. Boston IV. A'. Corp. v. 0/d Colony R. Corp., 12 Ctish. {Mass.) 605. — Criticised in Boston Gas Light Co. v. Old Colony & N. R. Co., 14 Allen (Mass.) 444. Distinguished in Eaton v. Boston, C. & M. R. Co., SI N. H. 504. Bridges built under and pursuant to the terms of an act of congress are lawful struct- ures. An act of congress authorizing a partial obstruction of navigation will not, however, protect an impediment not con- templated by the statute, and any excess in the exercise of the powers granted by which navigation is impaired becomes a nuisance pro tanto. Silver v. Missouri Pac. R. Co., 44 Am. &- Eng. R. Cas. 467, 101 Mo. 79, 13 S. W. Rep. 410. Where an act of congress authorizes the construction of a bridge over a navigable river, if the bridge in any part be not con- structed according to the terms of the act, it will be an unlawful structure to the ex- tent of such departure, and will render the owners liable for injuries to vessels where they are navigated with ordinary skill and care. Missouri River Packet Co. v. Hanni- bal &* St./. R. Co., 20 Am. &* Eng. R. Cas. 275, 79 Mo. 478.— Quoting Missouri River Packet Co. v. Hannibal & St. J. R. Co., 2 Fed. Rep. 290. The bridge over the Ohio river at Par- kersburg being authorized by a law of con- gress, the obstruction of navigation at that point, so far as it was reasonable and neces- sary to the construction of the work, was justified i and in considering the rights of navigation, they must be viewed as limited by those rights which have been conferred upon the bridge company by the law authorizing the structure in question. Bal- timore &* O. R. Co. V. Wheeling, P. &* C. Tramp. Co., 32 Ohio St. 116. An act of congress declaring a bridge " a lawful structure " supersedes a decree of the U. S. Supreme Court ordering it abated as an obstruction. Pennsylvania v. Wheeling &* B. Bridge Co., 18 How. {(/. S.) 421.— Reviewed in Easton v. New York & L. B. R. Co., 9 Phila. (Pa.) 475. 83. While the bridge is being built.'*' — The obstruction of navigation is lawful when caused by the construction of a bridge across a navigable stream by a rail- way company under authority of its charter, by the placing in the stream of such tem- porary structures as are absolutely essential, and without which the work could not be accomplisiied, the railway company taking care that sucii obstruction shall extend no further and be maintained no longer than is absolutely necessary for the erection and completion of the bridge by the exercise of due diligence and the employment of an adequate force of men and machinery. Cant r ell \. Kno.wille, C. G. O. R. Co. v. Hicks, 5 Sneed ( Tenn.) 427. Where a railroad company commenced the erection of a bridge in the month of January, and was not authorized by a legislative act to build the bridge until the March follow- ing, such authority to build will not relieve tiie company from liability for damages oc- curring between the above dates. Smith v. Louisville, N. O. &* T. R. Co., 62 Miss. 510. 84. While a bridge is being re- built. — A railroad company which began to rebuild a bridge crossing navigable waters on January 7th, and finished the work on March 2d, is liable for damages for obstruct- * Obstruction of stream while building a bridge, how far allowable, see 5a Am. & Eng R. CAS.667, iihstr. Liability of railroad companies in const run - ing bridges over navigable rivers, see note, 20 Am. Si Enu. K. Cas. 385. ■j; If v ftf ■'-■- 718 BRIDGES— VI/^::>UCTS, 85, 80. !'f« MM ' if. ; 511 it J ing navigation upon the last two days, by force of the provisions of the act respecting bridges. New Jersey Rev. p. 87, § 10. Delaware, L.SfW. R. Co. v. M^hrhof, 53 N. J. L. 205, 23 At I. Rep. 170. 85. While a bridge is being: re- paired."'— A railroad compuny authorized to bridge a navigable river is not liable in damages 10 the owner of a vessel for a tem- porary obstruction of navigation while re- pairing the bridge. The inconvenience is damnum absque injuria, Hamilton v. Vicis- burg, S. &* P. R. Co., 29 Am. Sf Eng. R. Cas. 490, 1 19 U. S. 280, 7 Sup. Ct. Rep. 206.— Fol- lowing Escanaba Co. v. Chicago, 107 U. S. 678; Cardwellt/. American River Bridge Co., 113 U. S. 205.— Followed in Central Tiust Co. V. Wabash, St. L. & P. R. Co., 32 Fed. Rep. 566; Rhea I/. Newport News & M. V. R. Co., 52 Am. & Eng. R. Cas. 657, 50 Fed. Rep. 16. A railroad company was authorized to bridge a certain navigable stream " so as not unreasonably to obstruct navigation." After the bridge was erected it became necessary to repair it, and in doing so it became neces- sary to obstruct temporarily the navigation of the river, but the company offered to transfer all river freights without extra charge to the shippers. The amount of shipping by railroad largely exceeded that by the river. Held, that this was not an un- reasonable obstruction, and that a shipper who refused to send any freight by water could not recover from the company the extra cost of sending it over another line. Rhea v. Newport News «S- M. V. R. Co., 52 Am.&» Eng. R. Cas. 657, 50 Fed. Rep. 16.— Distinguishing Pennsylvania v. Wheel- ing & B. Bridge Co., 13 How. (U. S.) 518; Grand Trunk R. Co. v. Backus, 46 Fed. Rep. 216. Following Northern Transp. Co. V. Chicago, 99 U. S. 635 ; Hamilton v. Vicksburg, S. & P. R. Co.. 119 U. S. 280, / Sup. Ct. Rep. 206 ; Green & B. R. Nav. Co. V. Chesapeake, O. & S. W. R. Co., 88 Ky. 1, 10 S. W. Rep. 6. Quoting Cardwell v. American River Bridge Co., 113 U. S. 210, 5 Sup. Ct. Rep. 423. In repairing a railroad bridge it was nec- essary to set piles in the river. The repairs were finished when the river was frozen over, and the piles were cut off even with the ice, and as the river fell they were cut * Obstruction of navigation beyond period al- lowed by statute while repairing a bridge ; see 53 Am. & Enu. R. Ca '. 666, ahtr. oft again, so that after the ice had broken up they were left some 18 to 30 inches below the surface of the water. Plaintiff was en- gaged in floating rafted logs down the river and sued on account of an obstruction to the navigation. The master found that plaintiff continued to safely float his logs after the ice broke until the following summer, when the river was too low to be so used, if the stumps of the piles had been removed. Held, that this was equivalent to a finding that the piles had been properly removed, and that plaintiff was not entitled to dam- ages. Central Trust Co. v. Wabash, St. L. 6>» P. R. Co., 32 Fed. Rep. 566.— Followinc; Hamilton v. Vicksburg, S. & P. R. Co., 119 U. S. 280, 7 Sup. Ct. Rep. 206. The power to build a bridge across a navi- gable stream implies the power to make nec- essary repairs thereon ; and where piling is necessary in making such repairs a party temporarily obstructed from navigating the river by reason of such piles cannot recover damages therefor, where the piles are driven and used in an ordinarily skilful manner. Central Trust Co. v. Wabash, St. L. 6- /'. R. Co., 32 Fed. Rep. 566. 80. Remedy for obstructing navi- gation.— (i) Generally.— Ihe obstruction of a navigable stream by a railroad bridge is a public nuisance to be abated by indict- ment, but a party who has been specially damaged thereby may maintain an action against the railroad. South Carolina R. Co. V. Moore, 28 Ga. 398. A person interested in the navigation of a stream or an arm of the sea cannot recover damages caused by the navigation being obstructed by a bridge, where the plaintiff is only damaged in common with the whole public ; and the fact that plaintiff is the only person maintaining a wharf above a bridge which cuts him off from reaching it by vessel, will not entitle him to damages where there is nothing to show that his injury is differ- ent from what may occur to other riparian proprietors above the bridge whenever they shall decide to use their lands for a similar purpose. Blackwell\. Old Colony R. Co., 122 Mass. I. After notice was given to a railroad com- pany to alter its bridge over a certain river so as not to obstruct navigation, as provided by an act of congress of August 11, 1888, but before lapse of the time therein provided for doing so, the property of the company passed nito the hands of a receiver in a fore- BRIDGES— VIADUCTS, 87. 719 M broken up :hes below iff was en- n the river :tiontothe lat plaintiff after the mer, wlien ised, if the removed. a finding removed, d to dani- as/t, S/. L. OLLOWINC t. Co., 119 OSS a navi- malce iiec- re piling is rs a party gating tlie ot recover are driven 1 m;inncr. L. Gf P. K. ugr iiavi- bstruction 3ad bridge by indict- 1 specially an action '/>/ T. R. Co., 43 Fed. Rep. 414. (2) Jurisdiction. — The act of congress of July 26, 1866, authorizing the construction of certain bridges over the Missouri river at or near Kansas City, and providing further that " in case of any litigation arising from any obstruction or alleged obstruction to the free navigation of said river, the cause may be tried before tlie district court of the United States of any state in which any portion of said obstruction or bridge touches," does not confer exclusive jurisdic- tion upon the federal courts, but only con- current jurisdiction with the state courts. Missouri River Packet Co. v. Hannibal &» St. J. R. Co., 20 Am. 6- Eng. R. Cas. 275, 79 Mo. 478.— Followed in Silver v. Missouri Pac. R. Co., loi Mo. 79. (3) Pleading. — A complaint alleging that the channel of the Wisconsin river was so obstructed by a bridge built by the defend- ant below the city of Por;age, that no boats or rafts could pass in : a ety without guide- booms extending up the river from each end of the main span ; that such guide-booms were not maintained ; and that in conse- quence thereof the plaintiff suffered dam- age — is held to state a cause of action, al- though it does not allege that the channel span of such bridge has been designated by the engineer of the United States in accord- ance with § 1605, Rev. St. U. S., or that there has been any violation of § 1837, Rev. St. U. S, The obstruction to naviga- tion being unnecessary and unlawful, the fact that the channel span had not been so established could not be a defense to an action for actual damages, although it would be a defense to an action for treble damages under § 1606, Rev. St. Sweeney v. Chi- cago, M. Sf St. P. R. Co., 20 Am. &* Eng. R. Cas. 268, 60 IVis. 60, iSN. W. Rep. 756. jn an action by a steamboat company against a railroad company to recover dam- ages for obstructing a navigable stream by the erection of a bridge, some particular in- jury must be averred in the declaration, but It is not indispensable to a recovery that the injury shall be proved precisely as laid. Thus where the verdict, under the charge of the court, was based upon the expenses incurred by the boat in making the trip which was rendered fruitless by the obstruc- tion, and the declaration based the dam- ages upon the fact that the boat company were deprived of the profits which they would otherwise have made by the use of said boat in the carrying trade along said stream, it was held tiiat such variance could not affect the verd ict. Memphis i. S.) 485.— Quoted in State v. Portland & K. R. Co., 57 Me. 402. In such a case the lower court decreed an abatement of the bridge on the Iowa side to the middle of the river. Under the proofs it was extremely doubtful if that part con- stituted a nuisance, the main channel being on the Illinois side, where the damage com- plained of had occurred. Held, under the peculiar circumstances and facts of the case, that the bill should be dismissed. Missis- sippi &* M. R. Co. V. Ward, 2 Black {U. S.) 485.— Followed in Rheaz^. Newport News & M. V. R. Co., 52 Am. & Eng. R. Cas. 657, 50 Fed. Rep. 16. Plaintiff was owner of a steam-vessel ply- ing a lake and accustomed to run into a river where it leaves the lake, and to lie in a basin alongside a wharf. Defendants, in ex- tending their line of railway, constructed a bridge across the river, which completely obstructed the entrance, and caused, it was alleged, special damage to plaintiff, who was obliged to moor his boat in a basin on the lake side of the bridge. While the bridge was in construction some correspondence took place by plaintiff personally and through his solicitor with defendants' general man- ager, in the nature of protests, but the bridge had been in use for several years without action on the part of plaintiff, when a bill was filed praying that it might be de- clared a nuisance and abated. Held, that by the delay in taking action, and otherwise, there had been unequivocal acquiescence in the action of defendants. Sanson v. North- ern R. Co., 29 Grant Ch. (Ont.) 459. IT. T0LL-BBID0E8— BBIBOE COM FANIES. I. /« General. 89. What is deemed to be a toll- bridge. — The Missouri Bridge Act author- ized bridge companies to permit railroad companies to extend their tracks over bridges belonging to the former. The powers confe:rcd upon a bridge company were conferred upon a railroad company, which was authorized, in connection with its railroad bridge, to erect a bridge for the passage of teamt , carriages, and foot-passen- gers. It was also provided that all railroads might run their cars over the bridge. A bridge was built which formed a necessary BRIDGES— VIADUCTS, 00, 01. rzi ight there, in these V. IVard, State V. part to the railroad company's track, al- though it was also used for carriages and luot-passengers. He/d, that the bridge so built was not a toll-bridge, but was a rail- road bridge, and assessable as an integral part of the railroad. S/ate ex rel. v. Hannibal «S- St. J. R. Co., 37 Am. 6- Eng. R. Cas. 406, 97 A/o. 348, 10 S. IV. Rep. 436.— Distinguished in Glenn v. Mississippi River Bridge Co., 109 Mo. 253. Although ihe Missouri State Board of Equalization is empowered to assess taxes on toll-bridges and to determine what bridges are toll-bridges, the question whether a bridge is in fact a toll-bridge or a railroad bridge is jurisdictional, and the conclusion of the state board in that respect is re- viewable by the court. State ex rel. v. Hannibal ** St. J. R. Co., 37 Am. 6* Eng. R. Cas. 406, 97 Mo. 348. 10 5. W. Rep. 436. 00. Extent aud elt'eet of the fk>un- chise.— A franchise to erect a toll-bridge is not exclusive. A second and free bridge may be chartered over the same waters, so near as to destroy the value of tiie first franchise. Charles River Bridge v. Warren Bridge, 11 Pet. {U. S.) 420.— Applied in Aikin v. Western R. Co., 20 N. Y. 370. Commented on in Raritan & D. B. R. Co. V. Delaware & R. Canal Co., 18 N. J. Eq. 546. Followed in Thompson v. New York & H. R. Co., 3 Sandf. Ch. (N. Y.) 625 ; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Jancsviile Bridge Co. v. Stoughton, i Finn. (Wis.) 667. Quoted in Thorpe v. Rutland & B. R. Co., 27 Vt. 140; Com- monwealth V. Chesapeake & O. R. Co., 27 (Jralt. (Va.) 344- The proprietors of the bridges over the rivers Passaic and Hackensack have, by contract with the state, the exclusive fran- chise of maintaining said bridges and taking toll therein, and such contract is within the protection of the constitution, which declares that no law shall be passed impair- ing the obligation of contracts. But the construction of a viaduct over said river for a railway, to be used exclusively for the passage of locomotives, engines, and rail- road cars, is not a bridge within the prohi- bition of said charter. Prop'rs of Bridges v. Hoboken L. &- /. Co., 1 3 N.J. Eq.ii; affirmed in 13 N.J. Eq. 503.— Reviewing Mohawk Bridge Co. v. Utica & S. R. Co., 6 Paige (N. Y.) 564; McRee v. Wilmington & R. R. Co., 2 Jones (N. Car.) 186. An act granting a company the right to I I). R. D.— 4". construct a toll-bridge, but which does not claim to be an exclusive right, does not pre- vent the incorporation of another company and the erection of another bridge over the same waters, which does not obstruct the passage of the first bridge, but which will have the effect of diminishing its tolls and profits, and the proprietors of the first bridge cannot maintain a bill to restrain the erection and use of the second bridge. Janesville Bridge Co. v. Stoughton, i Finn. ( Wis.) 667. — - Following Charles River Bridget. Warren Bridge, 11 Pet. (U. S.)42o. 01. Yiulation of exclusive frau- cliise, generally.* — The grant to a cor- poration of the right to erect a toll-bridge across a river without any restriction as to the right of the legislature to grant a simi- lar privilege to others, does not deprive a future legislature of the power to authorize the erection of another toll-bridge across the same river so near to the first as to divert a part of the travel which would have crossed the river on the first bridge if the last had not been erected; and ihe building of a bridge across a river by a railroad com- pany, and the transportation of passengers across the river on the bridge, in railroad cars, in the ordinary course of business, is not an infringement of the chartered rights of a toll-bridge which excludes others. Mohawk Bridge Co. v. Utica &• S. R. Co., 6 Paige {N. Y.) 554.— Applied in People v. Brooklyn, F. & C. I. R. Co., 9 Am. & Eng. R. Cas. 454. 89 N. Y. 75. Approved in Mayor, etc., of New York v. New England Transfer Co., 14 Blatchf. (U. S.) 159. Fol- lowed in Thompson v. New York & H. R. Co., 3 Sandf. Ch. (N. Y.) 625. Quoted in McLeod V. Savannah, A. & G. R. Co., 25 Ga. 445 ; Prop'rs of Bridges 7/. Hoboken L. & I. Co., 13 N.J. Eq. 503; affirming 13 N. J. Eq. 81. Sheboygan v. Sheboygan & F. du L. R. Co., 21 Wis. 667. Referred TO IN Hudson & D. Canal Co. v. New York & E. R. Co., 9 Paige (N. Y.) 323. Re- viewed IN Prop'rs of Bridges v. Hoboken L. & I. Co., 13 N. J. Eq. 503; affirming 13 N. J. Eq. 81. Where an act conferring a franchise to build a bridge and to take tolls provided that the owner of an unauthorized bridge or vessel used to transport passengers at the same point should pay treble tolls, to be recovered by the donee in an action of debt * See ante, O. I m .•>.i 798 bRIUGES— VIADUCTS, 954. I : ^1 before a justice ; in a suit in equity by the owner of the bridge, against a corporation, for a violation of his franchise through a new bridge, alleged to be unauthorized— Ae/d: (I) that the remedy given by the act was cumulative, and did nut preclude the donee from resorting to other aciiuns; (2) if the act were otherwise, the necessity of the case would warrant another remedy, as the corporation ceuld not be sued before the justice; (3) that chancery had jurisdiction to restrain, by injunction, the unlawful use of the new bridge, at the suit of the owner of the franchise ; (4) that chancery would not maintain a suit in his behalf for an ac- count of the tolls lost through the use of the new bridge, but that, if a case were made for its interposition by way of injunction, it would decree an account as an incident to such relief ; (5) that this court would not enforce the penalty provided by the act. Thompson v. New York &* H. R. Co., 3 Sandf. Ch. (N. V.) 625. 02. Erection of railroad bridge not an infriuffemcut of a bridge franchise. — The erection of a railroad bridge and the running of trains thereon is not an infringement of the exclusive right granted by the legislature in 1806 to a cer- tain person to maintain a toll-bridge over the Ogeechee river at the same point, and collect tolls upon persons and the vehicles and conveyances then in use. McLeod v. Savannah, A. &* G. R. Co., 25 Ga. 445. A subsequent grant of the right to erect a railroad bridge alongside a toll-bridge does not interfere with the franchise of the toll-bridge erected under a provision in its charter prohibiting any other bridge across the same water within one mile. Lake v. Virginia &* T. B. Co., 7 Nei>. 294.— Dis- approving Enfield Toll Bridge Co. v. Hart- ford & N. H. R. Co., 17 Conn. 40. Quot- ing Thompson v. New York & H. R. Co., 3 Sandf. Ch. (N. Y.)625; McRee v. Wil- mington & R. R. Co., 2 Jones (N. Car.) 186; Tucker v. Cheshire R. Co., 21 N. H. 29. A franchise granted by the assembly, in 1766, to A., his heirs and assigns, to erect and keep a toll-bridge over a stream, and forbidding the erection of any other bridge or ferry within six miles, is not violated by a railroad company (incorporated by a mod- ern act) which carried passengers over a railroad bridge, authorized by their charter as part of the road, though erected within the six miles. McRee v. Wilmington &• R. R. Co., 2 Jones {N. Car.) 186.— APPLIED IN Raleigh & G. R. Co. v. Reid, 64 N.Car. 155. Appruvkd in Mayor, etc., of New York v. New England Transfer Co., 14 Blatchf. (U. S.) 159. yuoTEU IN Lake v. Virginia & T. R. Co,, 7 Nev. 294. Reviewed in Prop'rs of Bridges v. Hoboken L. & I. Co., 13 N. J. Eq. 503; affirming 13 N. J. Eq. 81. The legislature, in 1790, authorized M. to erect a toll-bridge across a navigable river or arm of the sea, where the tide flowed, and to maintain the same for sixty years ; and the act provided that it should not be lawful for any person or persons to erect or maintain a bridge or ferry between the two places which were to be connected by M.'s bridge. The toll-bridge was built accord- ingly. In 1832 the legislature authorized the construction, between two distant places, of a railway which would necessarily cross the river at or near such bridge, and which was carried across the river by a bridge one-fourth of a mile distant from the former, and on its operation the railroad diminished by one-third the accustomed receipts of the toll-bridge. Held: (i) that the act conferring the franchise on M. was not a covenant or grant that no similar franchise should be conferred on others, and did not restrict the authority of a future legislature to establish a toll-bridge or ferry at the same place ; (2) that the grant to the railroad company did not impair the obli- gation of any contract with M. within the meaning of the prohibition in the constitu- tion of the United States; (3) that the fran- chise granted to the railroad company was not the same as that conferred on M., nor so similar as to be deemed an interference with the latter, in the sense in which a new bridge or ferry interferes with one pre- viously established at the same point ; (4) that if it were a direct interference, the railroad company were authorized to erect and maintain a bridge for the use of their railroad, adjacent to M.'s bridge.and the act granting them the power was valid. Thomp- son V. New York en the two led by M.'s lilt accord* authorized |vo distant necessarily ch bridge, tie river by istant from the railroad iccustomed /.• (1) that on M. was no similar on others, 'of a future Ige or ferry jrant to tiie ir the obli- within the le constitu- at the fran- •mpany was on M., nor nterference 'hich a new 1 one pre- point ; (4) srence, the ed to erect ise of their and the act d. Thomp- Sand/. Ch. vego Fails ^)Ch. 547; S. R. Co., :r Bridge v, .20 ; Meads ellor's Dec. nal Co. V. NCUISHINC :r, 5 Johns. Ch. (N. y.) 101.— Follow Kij in Niagara Falls I. Bridge Co. v. Great Western R. Co., 39 Barb. (N. Y.) 312; Mayor, etc., of New York 7>. New England Transfer Co., 14 Blatchf. (U. S.) 159. Quoted in Lake v. Virginia & T. R. Co.. 7 Nev. 294. Rk- VIEWEU in Prop'rs of Bridges z^. Hoboken L. & I. Co., 13 N. J. Eq. 503; affirming 13 N.J. Eq. 81. Where a state granted to a company in 1 790 the right to erect a toll-bridge over a river, with a provision that no other bridge should be erected within a given distance of it — held, that a contract was thereby created within the meaning of the United States constitution which could not be impaired by the erection of any other bridge in use at that time; hut that railroad bridges not then being known were not included, and the state mi(;iit authorize the same within the prohibited distance. Prop'rs of Bridges v. Hoboken L. &• I. Co., i Wall. ( U. S.) 1 16. Where a person is empowered to build a bridge over a river and to take tolls, and the statute forbids other persons than he to convey persons across the river within cer- tain limits, a railway company constructing a bridge over the same river within such limits as authorized by statute cannot be treated as a wrongdoer, and no action can be bronght by the bridge-owner to obtain the demolition of its bridge ; and even if the owner of the first bridge was entitled to compensation, the making of such compen- sation was not a condition precedent to the exercise of the powers granted by the statute of the company. Jones v. Stanstead, S. 6- C. K. Co., 41 L.J. P. C. 19. 20 W. K. 417. 8 Moore P. C. C. N. 5. 312, L. K. 4 P. C. 98, 26 Z. T. 456. 03. Forfeiture of flranchiHe. — A statute authorizing an individual to erect a bridge and to receive tolls for its use con- fers upon him a franchise, and a substan- tial compliance with the conditions imposed by the act will invest him with its rights and privileges. Where a franchise has be- come vested in the donee or grantee, it is no defense to a suit brought by him to assert or maintain the franchise, that he has forfeited it by any subsequent acts of commission or omission. There must be a judicial forfeiture of the franchise, at the suit of the state, before individuals can avail themselves of such acts. It cannot be impeached collaterally. Thompson v. New York <&«» //. /i*. Co.. 3 S,wdf. Ch. {N. Y.) 625. 04. ltci;iilutloiiof tollH by Hiuliite.* — It seems that congress has the power, under its right to regulate commerce, to prescribe what compensation shall be paid for the use of a bridge cont-tnicted across waters which arc the dividing line between the United States and Canada, under a joint cliarter from the latter Rovcrnment and one of the states of the Union. Canada Southern K. Co. v. International liridf;e Co., 8 Fed. Rep. 190. The Georgia act of 1828, providing that wagons and carriages loaded with corn and cotton should pass the Ocmulgee bridge free of toll, is repealed pro tanto by the act of 1847, which vests in the corporate authori- ties of the city of Macon the right to regu- late the tolls of said bridge, and repeals all laws or parts of laws which would mili- tate against its provisions. Mayor of Macon v. Macon &* W. R. Co., 7 Ga. 221. By incorporating into the charter of a bridge company a provision authorizing the president and directors to fix the rates of toll, and providing that they should, from time to time, reduce the rates so that the net profits of the bridge should not exceed 1 5 per cent per annum, the state does not sur- render its power to regulate the bridge toils so long as the company realized not ex- ceeding 15 per cent profit. Commonwealth v. Covington &* C. Jiridge Co., (Ky.) 54 Am. &- Eng. R. Cas. 461, 21 S. IV. Rep. 1042. In determining whether an act regulating bridge tolls will reduce the receipts to less than the operating expenses, so as to con- stitute a taking of private property for pub- lic use without compensation, the receipts of the entire structure must be considered, including foot- and wagon- ways, where they are a part of the main bridge. Common- wealth V. Cffvington &* C. Bridge Co., {Ky.) 54 Am. » Eng.R. Cas, 461, 21 .S'. W. Rep. 1042. 05. Coudeiiiuiiigr lnii.) 50 Am. &* Eng. R. Cas. 395, 19 S. W. Rep. 403. A company was jointly chartered in the United States and Canada to build a bridge across the Niagara river, which forms the boundary line between the two countries. The relators, a railroad company of Canada, were authorized bv statute to cross the bridge, which was refused. One railway company already had the privilege to cross, under a lease, and it appeared that by the United States charter that company had the right to exclude other roads. Held, that the exclusive lease to the railway company, under the Canadian charter, was void ; but it appearing that the court had no power to grant the complaining company power to pass the centre of the bridge, and that it had not actually connected with the bridge, and probably could not do so without crossing the lands of the road already crossing the Ijridgc, a tuiiii of equity could grant no re- lief. Attorney-Lien,ral v. Xiagara Falls /. Bridge Co., 20 Grant Ch. (Ont.) 490. 102. Liability iin diHtliiiruiMhc>(l from that of carrier.— As the proprietors of a toll-bridge do not have the actual and exclusive possession of goods transported, as do common rarricrs, they arc not liable to the same extent ; that is, they are not in- surers of the safety of the goods. Frank- fort liridge Co. v. Williams, 9 Dana (A>.) 404. lOt'l. Bridtru voiiMtriictiou voiii- IMiiiy not liable for deatli of brake- man.'*'— An iron bridge company that erects a bridge over a railroad track so low thai a brakeniiMi cannot sit erect on top of freight cars and pass thereimder is not liable for the death of a brakeman who is killed by coming in contact with such bridge. Stoneback v. Thomas Iron Co., (Pa.) 4 Atl. Rep. 721. 104. Liability of lessee for not charflring and eolleotingrtollH.- Where a railroad company leases the privilege of running cars across a toll bridge, and per- sists in allowing persons to pass without paying toll, it may be enjoined as for a con- tinuing nuisance. Niagara Falls I. Bri^e Co. v. Great Western R. Co., 39 Barb. (A'. Y.) 212.— Following Thompson v. New York & H. R. R. Co., 3 Sandf. Ch. 625.— Di.stin- GUISHED IN Troy & B. R. Co. v. Boston, H. T. & W. K. Co., 7 Am. & Eng. R. Cas. 49. 86 N. Y. 107. Where a railroad company leases the right to lay a track over a bridge and to run cars on the same, it will be liable to the pro- prietors of the bridge for allowing persons to pass over without the payment of tolls and for collecting tolls from others, and for failing to provide the directors of the bridge with passes over its road, according to agreement ; and the amount of damages is the amount that such directors were com- pelled to pay out for fares, and the amount of tolls collected from such persons. Niag- ara Falls I. Bridge Co. v. Great Western R. Co., ig Barb. (N. K) 212.— Distinguished IN Richmond v. Dubuque & S. C. R. Co., 33 Iowa 422. BRIEFS. On appeal, see Appeal, etc.. 137* i * See ante, 25. it. .1: frr BY-LAWS, 1-3. 1 i^ < v^I mi lit ''1 •;• .' •' '1 BROKERS. Implied power* of agents to tell or purchase, see Agency, 15, lU. Ticket brokers, see Ikkeis and Fakks, IV. BUFFERS. Duty io employes as to safety of, see Em- FLOvii, Injuries to, 1, 6. BUILDINGS. Injuries to, by blasting, see Rlastinr, 4. Removal of, across railway track, power to authorize, see Aukncy, OA. When deemed fixtures, see Fixturrs, O. BURDEN OF PROOF. As respects contributory negligence, see Contributory Negligknck, VI. As to contributory negligence of injured em- ploye, see Emi'Loyks, Injuriks to. III. 8, As to limitation of liability, see Limitation of Liability, IV. As to negligence, in Illinois, see Compara- TiVK Negligence, 5. In actions for injuries to passengers, see Carriage of FAssF.Nt.ERs, III, i. In actions for loss of baggage, see Bargagk, 117. In actions for negligence, see Negligence, III. 3. In cases of derailment, see Derailment, 3. In cases of injuries to employes, see Em- ployes, Injuries tu, I, g. In collision cases, see Collisions, 5. In replevin, see Replevin, 5. In suits generally, see Evidence, III, 3. To show negligence in causing fires, see Fires, II. 8. To shc^ negligence in stock-killing cases, see Animals, Injuries to, S85, 280, 495>S23. BURGLARY. Offense of, generally, see Criminal Law, III. BT-LAWS. Of cities, see Municipal Corporations, I; Streets and Hiuhwavs, V. Of relief associations, see Relief Associ- ations, 7. 1. Power to alter, amend, or mod- ify.— The by-laws, orders, and resolutions adopted by a railroad company or its stock- holders arc always under the control of the Uiajority, unless expressly provided other- wise by the charter; and they may be re- pealed, altered, or nioditied from time to time, as in the judgiiieir. of the majority may be deemed expedient. And it forms no legal ground of complaint that some regu- lation or resolution of the company which existed at the time a particular individual became a member, and upon the faith uf the continuance of which alone he was in- duced to subscribe for stock, was afterwards abrogated or changed in a manner not in- consistent with the charter. East Tenn. » V. R. Co. V. Gammon, 5 Sneed ( Tenn.) 567. Though a by-law of a company au- thorizes the directors to alter or amend the by-laws, the directors have no authority under said by-law or otherwise to disregard or alter another by-law which was Intended to impose a limitation on their powers. Stevens v. Davison, 18 Gratt. (Fi.) 819. 2. Validity. — By-laws must be reason- able and for the common benefit, and must operate upon all equally. So a resolution of a corporation declaring the stock of one member forfeited for unpaid assessments, and directing a sale of the same, is not a by-law where there were other delinquent subscribers. Budd v. Multnomah S. R. Co., 15 Oreg-. 413, IS Pac. Rep. 659, A bylaw imposing a tine upon a member of an association of common carriers, who might carry freight for less than a prescribed rate, is against public polity and will not be enforced. Sayre v. Louisville U. B. Assoc, I Duv. (A>.) 143. The validity of a by-law of a corporation is a question of law, as is also the question whether a by-law is in conflict with law or with the company's charter; but a regula- tion of common carriers that affects the rights of passengers, such as requiring that they should exhibit tickets when requested, or not to smoke or indulge in other of- fensive practices, or that male passengers should not enter a place set apart exclu- sively for females, are not by-laws proper, and their validity depends upon whether they are reasonable, which is a question of fact for the jury. State v. Overton, 24 A'. /. I" 435- 3. Interpretation and effect.— Third parties dealing with a corporatio 1 are not affected by a by-law providing how special meetings of the board of directors shall be called. Samuel v. Holladay, i Woolw. {U. S.) AOO. The by-laws of the defendants provided n CABLE RAILWAYS, !-3. m .:> that interest should be allowed on all instal- ments until the road was completed and in running order. NM, that the defendants could not recover of the plainiiils, who had contracted to construct and complete the road by a specified time, the interest which accrued upon the instalments between that time and the time when the road was actu- ally completed. Barker v. Troy &* /i. R. Co., 27 Vt. 766. A by-law of a railroad corporation pro- vided that in case of a sale of shares for nonpayment of assessments the treasurer should give notice to the delinquent owner, when his residence was known, of the time and place of sale, by letter seasonably put into the mail. Held, that this by-law was directory to the treasurer, and not a condi- tion precedent ; and that a written notice of the time and place of sale, signed by the treasurer, and delivered to the owner of the shares, or left at his dwelling house, and re- ceived by him as soon as he was entitled to receive it by mail, was sufficient. Lexington &• IV. ex. Co. V. Chandler, 13 Met. {Mass.) 311. GABLE RAILWAYS. For decisions applicable to cable railways in common with other street railways, see Strekt Railways. I. BIGHT TO C0N8TBUCT AXD OFEB- ATS 727 U. LIABILITY FOB INJUBIEB CAUSED BT NEGLIOEirCB 7^9 1. 7'o J'assengers 729 2, To Persons in the Street.. 731 I. BIOHT TO COKSTBUCT ABD OPEBATT,. 1. Ill t^eueral— Under K^iierul rail- way act. — A horse-car company can only ciaim an exclusive franchise as to such modes of transportation as are known at the time that it is chartered ; and such r.liar- ter will not exclude the use of competing cable cars that are unknown when the char- ter was issued. Omaha Horse A'. Co. v. Caile Trannvay Co., 30 Fed. Rep. 324.— Distin- guished IN Detroit City R. Co. v. Mills, 85 Mich. 634. A company organized under the New York general railroad act of 1850 obtains no right to build a cable road on streets of a city, the only power gained thereby being the right to apply to the city authorities for permission to do so, which must be given before a road can be built. Schapcr v. Brooklyn &* L. I. C. R. Co., 4 N. Y. S. R. 860, 42 Hun 657 ; affirmed in 124 A^. Y. 630, mem., 3 5/77/. A/>p. 335. 26 A^. E. Rep. 311, 35 A'. Y. S. R. 1 1 i. People ex rel. v. Niwlon, 16 N. Y. S. R. 86, I N. Y. Supp. 197 ; revers- ing 14 A'. Y. S. R. 906. 2. Under municipal ft*anchlse8.— A municipality may grant a franchise to oper- ate cable cars on tlie streets, but it cannot grant the right to operate the power-house with its engines, so as to relieve it of lia- bility for damages to adjoining proprietors who may be injured by the manner in which the power house is nm. Tuebner v. Cali- fornia St. R. Co., 19 Am. &* Eng. R. Cas. 147, 66 Cal. 171, 4 J'ac. Rep. 1162. Where a company holds a franchise to operate a cable railway upon certain streets through compliance >.vith the absolute con- ditions contained in the grant, but operates a horse railway instead of a cable railway upon one of the streets, the proper course for the city is not to abate such horse rail- wiiy as a nuisance, but to ta'xe such legal proceedings as will compel the operation of the road by cable instead of by horses. Spo- kane St. R. Co. v. Spokane Falls, 6 IVask, 521, 33 Pac. Rep. 1072. !l. Kig:lit tu open streets and lay cables. — A corporation organized under the New York general railroad act (Laws 1850, c. 140) was authorized by a city " to lay a double track for a railroad " in certain streets, upon condition that it should keep in good repair the space between the tracks and a space on each side of the same, and that the tracks should be laid upon a good foundation, with a rail even with the sur- face of the streets. Pursuant to this au- thority, a horse railway was constructed and operated for many years. Held, that th> authority conferred upon the company by the ciiy did not authorize it to open up the i •f 7SW C^BLIi RAILWAYS, 4-«. p., I u streets fur the purpose of constructing a cable railroad in place of the horse railway. People V. Newton, 38 Am. «S- Eng. A'. Cas. 391, 112 N. V. 396, 19 A'. /:. AV/. 831,21 A^. V. S. A'. 8 ; affirming 48 Hun im, i A'. Y. Supp. 197. 16 iV. Y. S. A\ 86.— Fol- lowing People ex rel. v. Thompson, 98 N. Y. 6.— Distinguished in AV Washington St. A. & P. R. C. Co., 1 1 5 N. Y. 442. 22 N. E. Rep. 356, 26 N. Y. S. R. 504; Hudson River Tel. Co. V. Watervliet T. & R. Co.. 135 N. Y. 393; Hudson Riv. Tel. Co. v. Watervliet T. & R. Co., 48 N. Y. S. R. 417 ; revers- ing 39 N. Y. S. R. 952. 4. UightH of abutting uwiierH— Consent. — A cable railroad company which derives from the city its rij^ht to alter the grade of a street for the purpose of con- structing its road is liable for the damages to the abutliiij; propcrty-ow ners caused by the alteration of the street. Sheeliy v. Kan- sas City Cable A'. Co., 32 ^Im. 6^ l\»g. R. Cas. 233, 94 Mo. 574, 13 IVest Rtp. 653. 7 S. W. Rep. 579. An abutting property-owner has such an easement in the street as will support an ac- tion for the damages peculiar lo him by reason of such change in the street. Sheehy V. Kansa: City Cable R. Co., 32 Am. p. 876. O. RojoriilHtion by city ordinance- Municipal ordinances re},^iilati'i(4 the running of streci-riiilway cable and othei cars are applicable to al. ilways employed in the r CABLE RAILWAYS, 7-l>. 789 transpurtutiuii of pussciigcis tlirough the streets uf a city, without distinction as to the character of the nrntive power. Lamb v. St. Louis C. &* IV. A\ Co., 33 A/n. App. 489. An ordinance of the city of St. Louis, which was in force for more than thirty years, provided in regard to street railways tliat " the conductor and driver of each car siiall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or movinf^ towards it, and, on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible." Held, that this ordinance is not applicable to street railways propelled by cable, but only to street railroails propelled by horse-power^ Olenville v. St. Louis A'. Co., 51 Afo. App. 629. 7. ItiKlitH <>f liorMe railway crosMctl or iiaralhMvtl.— Where a line of horse cars is atierward paralleled and crossed by a cable-car line, the former may recover from the latter damages for incovcnience of access to its cars where the cable cars run between the horse-car track and the sidewalk ; but it is not entitled to recover damages resulting from a mere matter of competition, or from the fact that the better facilities offered by the cable road attracted passengers, nor for its track being cro, >;d by the cable line. Omaha Horse R. Co. v. Cable Tramway Co., yx Fed. Rep. 727. U. LIABIUTT FOB INJVBEIS OAUUD BT MEOLIOElfOE. I, To Passengers. 8. In general— Pre8iiiiii>tion of neg- ligence. — A passenger injured while oc- cupying a seat upon the dummy-car of a cable railway is not guilty of contributory negligence, as such seals art provided for passengers, and any one sittiog there has the same right to be protected ag.iinst the neg- ligence of the company's servants as pas- sengers in the trail-car. Hawkins v. Front St. Cable R. Co., 3 H'asA. 592, 28 Pac. Rep. I02I. Where a cable car is stopped so suddenly as to throw a [)asscnger from her scat and to break the glass in the car-windows, a pre- sumption ul negligence arises on the part of the ( i)m[)any. Clow v. Pittsburgh Traction Co., 158 Pa. St. 410. Proof of an accident and resulting injury to a passenger is not always sufficient to raise a presumption of negligence on the part of the carrier, or to make out a prima' facie case in favor of the passenger. So where a passenger on a cable car was in- jured by coming in collision with a horse and buggy on tiie street, while the curtains were drawn to protect him from the rain, obstructing the view on that side of the car of both him and the manager of the car — held, that the burden of proof was on him to show negligence. Potts v. Chicago City R. Co., 33 Fed Rep. 610. U. Defective aiipIianceH. — An in- struction to the jury that a street-railway company propelling cable cars, as respects precautions for the safety of passengers, is bound to exercise the greatest care and fore- sight in tiie construction and operation of its cars, correctly slater, .'ie law. Watson v. St. Paul City R. Co.. 41 Am. S- F.ng. R. Cas. 1 14, 42 Minn. 46, 43 A'. IK Rep. 904. Railroad companies are only required, in providing for the safety of passengers, to use the best appliances known to and obtainable by them, after inquiry and investigation, and after subjecting such appliances to a reason- -\ble test as to strength and ntness. A cable-car company, after selecting it's appli- ances as above, and after having properly tested them, is not liable for an accident re- sulting from tiie breaking of the shank of a grip through some hidden defect which could not be discovered by proper examina- tion. Carter v. Kansas City Cable R. Co., 42 Fed. Rep. 37. In an action for personal injuries alleged to have beer caused by insufficient and de- fective grip-irons and brakes on a cable- railway car, plaintifT cannot complain that he was compelled to carry the burden of proof at the trial, where the court in- structed at his request that " the burden of proof is upon the defendant to establish to the reasonable satisfaction of the jury that it could not discover any insufficiency of the grip-shanks or rail-brakes, if any there was, by the exercise of the utmost practica- ble skill and human foresight." Sharp v. Kansas City Cable R. Co., 52 Am. &• Eng. R, Cas, 561, 714 Mo. 94, 20 .S". H'. Rep. 93. In such action an instruction asked by plaintiff, basing his right to recover upon the defective construction of the grip-irons and brakes, should have been given, and the error in refusing it was not cured by an instruction given by the court of its own motion, which placed his right to recover upon want of repair. Sharp v. Kansas City ft :. t '! ii 730 CAULK RAILWAYS, 10-13. Gid/i- A'. Co., 52 ^/w. (S- /:\. A'. Cis. 561. 1 14 Mo. 94, 20 .s'. //'. AV/. 95. An instruction wliicli excuses the dcf-nd- ant, if the liubility of the break-shani< to brake, or tiie insulliciency of the brake, was either not known tu the defend:int or was such as could not have been known by tiie utmost practicable care, is erroneous in the use of or for a/u/, as the mere want of knowledge of the insutriciency of the grip or brake would not relieve the defendant. Sharp V. Kansas City Cable R. Co., 52 Am. 6- Eni;. K. Cas. 561, 1 14 JA;. 94, 20 X U'. A\p. 93. In such case, proof that the brakes were insufTicient to hold the car makes a prima facie case for the plai 'tifl. Sharp v. Kan- sas City Cable R. Co., 52 Aw. 3. A cable railway company in supplying grips and bva'ces for its cars and in keeping them in repair is bound to anticipate and take into consideration all such weather and conditions of the track as may be rea- sonably expected in che climate where oper- ated. Sharp. V, Kansas City Cable R. Co., 52 Am. 6- Eng. R. Cas. 561, 1 14 Mo. 94, .:o .V. W. Rep. 93. 10. ExceHHivc speed. — Where a pas- senger alights from a cable car while it is running at a rate of speed prohibited by ordinance and is injured by a similar car moving in the opposite direction, it caimot be said that the speed of the train had no direct agency in causing the injury. Weber V. Kansas City Cable R. Co., 41 Am. &* Eng. R. Cas. 117, 100 Mo. 194, 12 S. W. Rep. 804, 135. IV. Rep. 587, 7 L. R. A. 819. Evidence held to justify a finding of negli- gence in respect to the condition or operation of a train of cable cars which, while carrying passengers, ran down a steep declivity com- posing a part of the line at very great and dangerous speed, and apparently beyond the control of those operating the train. Bishop v. St. Raul City R. Co., 48 Minn. 26, 50 A^. IV. R.p. 927. 11. lujiiry tu paMHeiiffer boanlingr car. — Two parallel streetcar tracks were so near together that cars goin^; in opposite directions would pass witiiin two feet of each other. The cars were operated by cable. Held, negligence for a person, after dark, to deliberately stand between the tracks, wait for and attempt to take passage on cars coming on one track, at the same time paying no attention to see whether cars were approaching within dangerous prox- imity on the other track. Aliiler v. St. Paul City R. Co., 42 Minn. 454, 44 A'. IV. Rep. 533. 12. riding on platform. — It is not negligence per se for a passenger to stand upon the front platform of the trailer of a cable train in the absence of any rule of the company forbidding it, and where it. is customary for passengers to occupy that position. Muldoon v. Seattle City R. Co., ( Wash.) 58 Am. &* Eng. R. Cas. 546. Where a train of cable cars on which the plaintid was a passenger, standing on the platform of the rear car, came to a stop when about half-way through the tunnel, and remained standing several minutes, when another train descending through the tui nel collided with the rear car of the standing train and thereby inflicted a per- sonal injury — held, that the mere fact of the injury raised a presumption of negligence which was sufficient to sustain a general charge of negligence in the running and operating of the defendant's road and the cars propelled ther« on. North Chicago St. R. Co. V. Cotton, 52 Am. &* Eng. R. Cas. 238, 140 III. 486, 29 A'. E. Rep. 899; affirming 41 III. App. zw. 13. aliKlitinfi: fk-oni car. — The facts that the door of a cable car was open on the side next to the parallel track, and that no guard was there to prevent persons from getting of! thro.igh it, cannot be con- strued as an invitation to a passenger to alight while the train was at full speed. The fact that the train did not stop or check up was a warning to the passengers rot to get off. Weber v. Kansas City Cable .'i. Co., 4t Am. &» Eng. R. Cas. 117, 100 Mo. 194, 12 S. W. Rep. 804, 13 S. W. Rep. 587, 7 L. R. A. 819. One in the possession of hisfaci Ides, who was accustomed to cable cars and must have known that they passed each other every few minutes, who left his seat with- out signifying to the brakeman near him any desire to get off, and who, without any reason to believe the cars would stop, went to the door of the car and jumped oil while it was in full speed, and was injured by an approaching tram, without looking for it, when he might have seen it had he looked, is guilty of contributory negligence. Weber V. Kansas City Cable R. Co., 4« ^m. 6- Eng. /*. f Vcr. 117. \aoMo. 104, \2S. W. Rep. 804, 13 S, W. Rep. 587, 7 Z. R. A. 819.— Rev»ewinu CABLIi RAILWAYS, 14,16. 781 Chicago City R. Co. v. Robii>son, 36 Am. & Eiig. R. Cas. 66. 127 111. 9. Plaintiff was a passenger upon a cable car and got out of it on the north side in a place of entire safety. Except in so far as the cur from which he alighted obstructed his view, he could bv.e the south track for a square or more. Without looking or wait- ing, he turned sharply around the rear of the car and started to cross the street. The space between the two tracks was four and a ha)f feet, and while crossing it he might have seen the approaching car. In- stead of looking, lie stepped right into the car, which was upon him at the instant he set foot upon the south track. Held, that the plaintiff was guilty of contributory neg- ligence and that a nonsuit was properly ordered, liuzby v. Philadilphia Traction Co., 42 Am. &•' Etig. R. Cas. 144, 126 /'a. Sf, 559, 17 At/. Rep. 895. 2. To Persons in the Street. 14. Ill guiierni— Carv required of {l^ripiiiau. — A cable-railway company op- erating dangerous machmery at <. rapid speed on and along the public streets of a city must know, and in law is bound to know, that men, women, and children have an equal right to the use of the highway, and will be upon it, Winters v. Kansas City Cable R. Co., 40 Am. 6- Eng. R. Cas. 261 , 99 Mo. 509, 1 2 .S". W. Rep. 652, 6 L. R. A. 536.— Quoted in Cambeis 7>. Third Ave. R. Co., 48 N. Y. S. R. 709. It is the duty of the company's servants to be on the lookout and to take all reason- able measures to avoid injuries to persons on the streets. Winters v. Kansas City Cable R. Co., 40 Am. Sf Eng. R. Cas. 261, 99 Afo. 509, 12 S. W. Rep. 652, 6 L. R. A. 536. It is not, as a matter of law, suflicient care on the par', "f the gripman, when approach- ing a curve in the street, to ring the bell, and, having seen that the way was clear in front, to go ahead without thereafter look- ing to the right or left. Winters v. Kansas City Cable R. Co., 40 Am. f the case, the car was managed with reasonable care. Wrig/it v. Third Ave. R. Co., 23 A^. Y. S. A'. 483, 5 A^. Y. Supp. 707. — Rkvikwing McGrath v. New York C. & H. R. R. Co., 63 N. Y. 522. In such case it was error to instruct that it was the duty of the gripman 10 keep a strict lookout forward for obstructions or objects which might come upon the track, as it was for the jury to determine whether the car was properly managed, in the ab- sence of such strict lookout. Wright v. Third Avenue R. Co., 23 A^. Y. S. R. 483, 5 A'. Y. Supp. 707. 15. CulliHioiiN. — The cable-car gripman is required to exercise ordinary care to pre- vent injuries to persons on the street, which would include the duty to stop the car so as to prevent a collision, if it could be done with safety to the car and its passengers. Pope V. Kansas City Cable R. Co., 43 Atn. &* Eng. R. Cas. 290, 99 Mo. 400, 12 S. W. Rep. 891.— Distinguishing Hell v. Hannibal & St. J. R. Co., 72 Mo. 50. In an action for a personal injury result- ing from the collision of a cable car and plaintiff's wagon, an instruction which told the jury that "if the gripman intentionally and carelessly ran the defendant's car against the plaintiff's wagon, that this was negli- gence, " is condemned, as "intentionally" and " carelessly " express different and in- consistent views of the same manner. Bind- beutal V. Street R. Co., 43 Mo. App. 4O3. — Distinguished in Holmes v. Atchison, T. & S. F. R. Co., 48 Mo. App. 79. The error contained in said instruction was prejudicial, and the more so when taken in connection with another instruction, which told the jury that if they found that M 73a CAULli RAILWAVS, IO-18. hi ^ ? ' p" H'' p ■ i. the injuries sustained were wilfully and intentionally inflicted, they should allow plaintiff punitory damages ; as also, when taken in connection with u further instruc- tion to the effect that if the injury was " intentional, " then the defense of contribu- tory i)c}{li|i;encc could not avail defendant. liindbt-iitiil V. Street K, Co., 43 Mo. App. 463. In an action for damages fur injuries re- sulting to plaintiff from the collision of a cable car with her wagon, which she was unable to get off the track because of the refusal of her horses to move, an instruction asked by defendant that " if it appears from the evidence that the plaintiff was guilty of any negli^^encc whatever which contributed to cause the injury complained of in this action, or concurred with the negligence of the defendant, if any, in producing it, then your verdict must be for defendant," was properly refused, on the ground that it im- poses a greater degree of care upon the party injured than upon the one committing the injury. Spurrier v. Front St. Cable K. Co., 3 Wash. 659, 29 Pac. AV/.346. Plaintiff, who had hitched his horse *o an awning-post, untied the hitching-strap while standing on the pavement, with some boxes between the horse and himself. Just then a cable car came along and the ringing of the bell alarmed the horse. It pullcii the strap from plaintiff's hand, ran U|x>i) the track, and was struck by the cable car. Plain- tiff tesliticd that when the horse reached the track the cable car was about eighteen to twenty feet distant. He also testified f nat the gi ipman could have stopped the car and have seen the horse, but there was no evidence to corroborate his testimony in that respect. Held, that there was not sufficient evidence to submit to the jury the question whether the gripman was negligent in not stopping the car in lime to prevent a collision, the plaintiff not being qualified to express an opinion upon that point; that the ringing of the bell was not negligence ; and that plaintilT could not rficover. Philadelphia Traction Co. v. Bernheimer, j8 Am ** Kng. R. Cas. 487, r25 Pa. St. 615, 17 ////. AV/. 477. - Followed in Steiner v. Philadelphia TratlionCn .41 Am.& Eng. R. Cas. 535, 134 Pa. St. lyv. lU. Failure to riiisr bell hi crosHlnir. — Where an -ordinance requires a bell to be rung on cable cars in passing street cro.ss- ings, a failure to do so is not xcused by showing that the car-conductor was tempo- rarily absent, and that the gripman was otherwise engaged. Driscoll v. Market .s/. Cable R. Co., 97 Cal. 553, 32 Pac. Rep. 591. A person walking on the street was killed by a cable car at a street crossing. A city ordinance required that a bell should be rung continuously from a point 25 feet from the crossing until after it should be passed. Held, that the failure to do so was negli- gence, both as a violation of a reasonable ordinance and because the circumstances showed in this case that it was carelessness not to do so. Driscoll v. Market St. Cable R. Co., 97 Cal. SS3, 32 Pac. Rep. 591. 17. Frightening liorNeM.— Where damages are claimed for injuries sustained through the plaintiff's horses taking (right at a traction car, evidence that the gripman rang the bell of tiie car at or near a b./eet crossing, where it was his duty to ring, does not establish negligence on the part of the gripman so as to render the company liable. Steiner v. Philadelphia Traction Co., 41 //;//. &* Eng. R. Cas. 535, 134 Pa. St. 199, 19 Atl. AV/. 491.— Following Philadelphia Trac- tion Co. V. Bernheimer, 125 Pa. St. 615. Quoting Philadelphia, W. & B. R. Co. v. Stinger, 78 Pa. St. 219. 18. KxceHttive width of grip-»lot.— A cable-car company was sued for injuries caused to a person driving on ihi; street by the wheels of his carriage on one side droj)- ping through the slot. Held, that the com- pany was liable if the widening of the slot occurred by reason of defects in tho original construction or design of the road, and that it was equally liable if the widening resulted from frost and thawing, as it was che com- pany's duty to properly inspect the track, to provide against such accidents. Griveaud V. St. Louis C. &' IV. R. Co., 33 Mo. App. 458. --Qu'rriNG KeitelT/. St. Louis C. & W. R. Co., 28 Mo. App. 665. An instruction to the effect that the de- ft ndant would not be liable for the plain- tiff's injuries resulting from the opening of the slot in a cable railway if the said open- ing was caused by heavy teams passing over the same, and if defendant did not know that such opening existed and could not have known thereof from the most careful inspection in time to have remedied the de- fect before the occurring of the accident, was properly refused, because it omitted one possible clement of the defendant's liability, namely, that the roadbed may have been de- ficient in original construction and design. CABLIi RAILWAYS, 1«.— CANALS, 1,2. 789 Cn'veaud v. St. Louis C &• IV. /t. Co., 33 Mo. App. 458. A cable-car company was sued for injuries tu a horse by catching tlie calk of his slioe in the slot. The liability uf the company depended upon whether the slot was more than three-fourths of an inch wide, and if so, whether the excess of width was the cause of the injury, upon which there was a conHict of evidence. Held, that it was proper to submit these questions to the jury, and that their verdict should not be disturbed. Humbert v. Brooklyn Cable Co., 12 N. Y. S. R. 172. In an action against a street-cable rail- way company for damages occasioned by the excessive and improper width of the grip-slot at a particular point, it is not necessary for the piaintifl to plead the de- fendant's notice or knowledge of such de- fective condition of its roadway. A'eitelv. St. Louts C. &^ IV. A". Co., 28 A/o. App. 657. 10. Contributory iieglit;eiicc.— An attempt to pass with a wagon in front of a cable car forty feet away and approaching at a speed of ten miles an hour is negligence as matter of law. Hamilton v. Third Ave, R. Co., 6 Misc. (,N. Y.) 382, 26 N. Y. Supp. 754. 56 N. Y. S. R. 397. Where a cable-railway company is sued for negligently killing a person on the street, and there is evidence tending to show con- tributory negligence, it is error to ignore such contributory negligence and simply charge that " if the jury believed that the gripman was looking back, and the ac- cident would not have occurred had he been looking forward, ■•■ ■*■ ■•■ and that this inatten- tion was the proximate cause of the acci- dent, then the defendant is liable." Wright v. Third Ave. R. Co., 27 A'. Y. S. R. 523, 5 A'. Y. Supp. 707. — Reviewing McGrath v. New York C. & H. R. R. Co., 63 N. Y. 522. An aged woman of good eyesight, but slight') deaf, sued to recover for injuries fur being struck by a car. At the trial she testified that it was always her habit before crossing the track to look both ways for cars but that she could not recollect having d jnc so at the time of the accident, and that she co'-'.d have seen the car half a block away, but did not either see or hear i'.. Another witness testified that plaintiff Jid look both way.s. Held, sufficient evidence to support a finding that plaintiiT used reasonable care. Cowan v. Third Ave. R. Co., <) N. Y. Supp. 610. CALIFOSNIA. Animals running «t large in, see Animals, iNjURibs TO, 244. State aid to railroads in, see Spate Aid, II. Statutes of, relative to kiUing stock, see Animals, Injukiks to, 19. CALLS. For directors' meetings, see Dirf.ctors, 18. Upon shares, see SuiiscKinioNs to Stock, II. CANADA. Examination of persons before trial in, see Discovery, lO. Government railroads in, see Government Railroads, II. Incorporation under statutes of, see Incor- I'o ration, 5. Land grants in, see Land Grants, VI. Protection of private ways by statute in, see Private Ways, lO. Rule as to animals running at large in, see Animals, Injuries to, 158. Statutes of, concerning fires caused by loco- motives, see Fires, 1, 2. Taxation of railroads in, see Taxation, XII. CANALS. Property of, when subject to execution, see Execution, 4. 1. Private canalN, generally. — Where a canal is constructed and main- tained at private expense, it is like a private road built and maintained in the same way, over which the public is permitted to travel but in which it obtains no vested rights. Potter v. Indiana &» L. M. R. Co., 95 Mich, 389, S4 A'. W. Rep. 956. 2. Contracts for the passage of boats. — The right to make contracts or agreements for the passage of boats, etc., through the Louisville and Portland Canal is a necessary incident to the powers speci- fically granted to the corporation to which the canal belongs ; and for any failure to perform a contract or undertaking of that sort, the corporation is liable, in the same manner and to the same extent that a nat- ural person would be. Muir v. Louisx'ille A^P. Canal Co.. 8 Dana (A>.) 161. When a boat is induced by a company to enter its canal in the expectation that, for a fair compensation, it shall have a pas- Siige through, the law implies an agreement on the part of the corporation that the boat sli.dl get tlirou^h in u reasonable time. f: CANALS, 3-7. «, •;i- Muir V. LouhvilU &* P. Canal Co., 8 Dana (Ky.) i6i. 3. Breukiiii; awuy of cnibauk- ineutii.— A cunal company is bound to use all ordinary and reasonable means and ap- pliances to guard against the breaking away of the embankment of its canal ; and fail- ing to do so, if a break occurs resulting in injury to the person or property of others, it is liable. Ale Arthur v. Green Bay &» M. Canal Co., 34 Wis. 139. 4. Siiiiiluy iiaviKiitioii.-A canal is a public highway which all persons complying with ail lawful requirements may navigate and use at their pleasure on all days except Sunday, and on Sunday in cases of neces- sity. Mc Arthur v. Green Hay &* M. Canal 0,34 Wis. 139. A regulation of a canal company that " no boat will be allowed to pass the lock on Sunday without a written permit from the superintendent or his assistant, and this permit will not be granted unless in case of actual necessity," is unreasonable, and neither tlie superintendent nor the board of directors of the company has power to es- tablish and enforce it. Mc Arthur v. Green lUy &' M. Canal Co., 34 Wis. 1 39. 5. State oannlH— RiglitN of piir- uliasers from state. — The state of Indi- ana held the fee to the title in the real estate over which the Wabash & Erie Canal was constructed, which passed to its pur- chasers, and upon abandonment of the canal for navigation and converting it to the pur- poses of a railroad, the property did not re- vert to the original proprietors. Mason v. Lake Erie, E. &- S. W. Ji. Co., 9 Jiiss. (U. S.) 239, I Fed. Rep. 712. Under a lease by the state of the use of so much of the surplus water, not required for navigation, of the Wabash & Erie Canal, owned by the state, as would be sufficient to propel machinery in the lessee's mill, the implied covenant for quiet enjoyment was such that so long as the canal was used for purposes of navigation, and while there was, during that period, a surplus of water, the state agreed to do no acts which would de- prive the lessee of its enjoyment. Hoag- land V. New York, C. &^ St. L. R. Co., 30 Am. &* Eng. R. Cas. 186, 1 1 1 htd. 443, 12 A'; E. Rep. 83, 9 West. Rep. 252. But the contract in such case did not im- pose upon the state, or upon a railroad com- pany that subsequently became its grantee, any obligation to keep the canal in repair. or to maintain it in such a condition that surplus water would be available, or to sup- ply any water whatever ; but the lessee look the lease subject to the right of the state or its grantees to abandon the canal for the purpose of navigiition, and to appropriate it to other uses, including the right to con- struct a railroad there(jn. Hoaglaml v. New York, C. &• at. L. R. Co., 30 Am.&'Eng. R. Cas. 186, III /«wer to declare the sale void for inadequacy ul price, or for any undue favor to local interests supposed to have influenced it. Sunbury &* E. R. Co. V. Cooper, 33 Pa. St. 278. The purchasers of the state canals under the Pa. act of April 21, 1858, took the same subject to all provisions of the resolution of April 14, 1843, respecting the payment of the tolls collected at Williamsport to the Williamsport & Eimira Railroad Company. Williamsport &* E. R. Co. v. Commonwealth, 33 Pa. St. 288. The title of a railroad company wiiich has succeeded to the pro[)i;rty and rights of the former Pennsylvania canals cannot be at- tacked by one who holds no title except by possession, on the ground that the land was not necessary for canal purposes. The ac- tion of the canal commissi )ners in buyinj; and selling the land is conclusive. Harris V. Pensylvania &- N. Y. C. 6- A'. Co., {Pa.) 9 All. Rep. 174. C. T. Cas. 113. In a statute granting a gross toll to the Birmingham Canal Company, it was recited that it would be of public advantage for the canal from Warwick to Birmingham to be opened into the Dij^betb branch ; and that, in order to induce the Birminghum Com- pany to agree to such junction taking place, it had been proposed and agreed that the Birmingham Company should have the rates or dues thereinafter mentiotied. Botii these statutes were repealed by others sub- stituting fresh tolls. Held, that the partic- ular circumstances wliich led to the original establishment of the tolls did not prevent them coming under the jurisdiction of the commissioners in fixing through tolls under the Regulation of Railways Act 1873, § 11. Proprietors of Warwick &• B. C. N. Co. v. Proprietors of Birmingham C. N. Co., 3 Ry, (S- 6". 7". Cas. 1 1 3. A canal company had a dividend guaran- teed to them by a railway company under a statute, which provided that they should not reduce or vary their tolls without ih<: consent of the railway company. Held, that the consent of the railway company to the granting of a through toll affecting tiie tolls of the canal company was not required. Proprietors of Warwick &* B. C. N. Co. v. Proprietors of Birmingham C. N. Co. , 3 Ry, &* C, T. Cas. 113. See also Id. 324. Upon a reference to the railway commis- sioners by the board of trade, under 37 & 38 Vic. c. 40, § 6, they reduced the lolls charged by the Great Western Railway Com- pany upoH the Kennct & Avon Canal, upon the complaint of traders using the canal under the provisions of the Great Western Act 1852. Wilts, S. &• B. C. T. Assoc, v. Great Western R, Co., 3 Ry. ,Ken> opiilly.* — As to the power of a receiver to contract with a car-trust association, see Taylor v. Philadelphia &* R, R. Co., 3 Am. &• Eng. R. Cas. 177, 9 Fed. Rep. i, 2. Lenses of ciirN.— Where a car-trust association is represented by trustees, and they enter into an agreement with a com- pany that has already leased cars, by which the terms of the lease are modified, but which only purports to bind such stock- holders of the trust association as authorize it by an indorsement on their certificates representing stock, and not a minority who fail to assent, the trustees still represent the minority, and may sue on the original lease to recover for them according to its terms. Humphreys v. Xew York, L. E. &- W. R, Co., 43 Am. &* Eng. R. Cas.yoo, 121 A'. V. 435, 24 A'. E. Rep. 695, 31 A'. V. S. R. 299. Tlie iru.stees of a car-trust association leased to defendant company certain cars anil locomotives, by \\Vw\\ tlie latter was to M * Car trusts and c;ir-:riist certificates, see note, 57 Am. & Kno R Cas. 243. r3fl CAR-TRUST ASSOCIATIONS, 3— CARRIAC.H OF LIVE STOCK. VS.! t;l:^ II'T pay, as rental, 6 per cent on certificates rep- reMnting the capital stock of the trust com- pany, and a further fixed sum, to be applied in purchasing the certificates. This lease was afterward modified " on behalf of such of the holders of said certificates as have already autliorizcd or shall hereafter author- ize the same," and the rental was reduced to 5 percentandotherchangesweremade. Some of the certificate holders never authorized the same or assented thereto. Held, that the modified lease was only binding upon such certificate holders as authorized it ; that the trustees could maintain an action to recover for the non-consenting certificate holders according to the terms of the origi- nal lease ; and that the mere form of the lease was not binding on all, as it was evident from the whole lease that the trustees only intended to bind those who assented to the modification. Humphreys v. New York, L. E. &* IV. Ji. Co., 43 Aim. &> Eng. R. Cas. 700, 131 A^. Y. 435, 24 N. E. Rep. 695, 31 A'. Y. S. R. 299. 3. Tnxution of.— An association known as a car trust is a " person," within the meaning of Maus. Pub. St. ch. 11, § 20, pro- viding that personal property held in trust, the income of which is payable to another person, shall be assessed to the trustee in the place where such other person resides, if within the commonwealth. Ricker v. American L. &>• T. Co., 140 A/ass. ^6. For the purpose of taxation under a stiitute providing that "property held in trust, the income of which is payable to another person, should be taxed where such other person resides," when such other per- son, or the cestui fue trust, is a partnership, the place where the partnership resides is the place where its business is carried on ; and where its business is carried on by a trustee, the latter's place of business fixes the resi- dence of the partnership. Ricker v. Ameri- can L. &* T. Co., 140 Mass. 346. There is no intermediate form of organiza- tion between a corporation and a partner- ship known to the laws of Massachusetts, and therefore, where a car-trust association is not acorporation it must be deemed a partnership and not simply an association of co-owners. Rickers .American L.&^T. Co., \\oMass. 346. Under Mass. Pub. St. ch. 1 1, § 24, provid- ing that " partners, whether residing in the same or different places, may be jointly taxed under their partnership name in the place where their business is carried on, for all the personal properly employed in such business," and under § 20 of the same chapter, providing that " personal property held in trust, the income of which is paya- ble to another person, shall be assessed to the trustee in the place where such other person resides if within the common- wealth," the personal profierty of a car-trust association which was so orf>anized as to constitute a partnership, whose property was held and business conducted by a trus- tee in Boston, and where the members of the association had no other place of meet- ing or business, is properly taxable to the trustee in Boston. Ricker v. American L. &* T. Co., 140 Mass. 346. CARBIAOE OF LIVS STOCK. Authority to allow persons to ride on cattle- car, see CoNUUcroR, 2. By ferry, see Ferkirs, lO. Duty to deliver under contract, see Stock- Yards, 3. I. OBLIOATIOX TO BBOIITX AMD CABBT 737 1. In General 737 2. Duty to Furnish Cars 737 3. Duty to Ship Promptly 741 n. OELIVEBT TO THE OABBIEB 743 UI. DOTT OF OABBIXB OUBIHO TBAH- M» 745 I. In General. 745 3. Food and Water 750 3. Delays in Transit 753 4. Negligence on Part of Com- pany 754 5. Contributory Negligence of Chjner 756 lY. DILI7EBT BT THE GABBOCB . . 757 1 . In General 757 2. Delivery to the Wrong Person. 760 y. SHIFPINO C0NTBACT8 760 I . Consideration and Construc- tion 760 3. Limitations of Liability, Gen- erally 761 3. Special Contracts Limiting Liability 763 Tl. COHVECTINO IINEB 783 VII. TBANBPOBTATIOir OF DISBAaBD LIVE STOCK 788 VUI TBAN8P0BTATI0N OF D008 790 IX. 0U8TODIAHSTBAVELLIHG OX CAT- TLE TBAIHS: DB0VER8' PA88E8, 791 1. Rights of. Generally 791 2. Personal Injuries 792 X. PBOCEDUBE IH ACTI0H8 801 CARRIAGE OF LIVE STOCK, 1-4. 737 737 •••• 737 737 .... 741 743 ftAH. 745 .... 745 .... 7SO .... 753 7om- .... 754 f of .... 756 I .. 757 .... 757 rson. 760 ..760 ruc- 760 len- .... 761 fi'tig .... 763 . ... 783 ,8XD . ... 788 . ... 790 JAT- 8E8. 791 ... 791 ... 792 ....801 I. OBUOATIOV TO BIOIITX AID OAIBT. I. In Central. 1. Not carriers of live ttock at com- mon law.*— Railroad companies are not by the common law carriers of live stock, and can only make themselves carriers of that species of property by assuming to convey it as carriers. Lake Shore &* M. S. R. Co. V. Perkins, 25 Afich. 329.— FOL- LOWING Michigan, S. & N. I. K. Co. v. McDonough, 31 Mich. 165. Unless required to do so by charter or by a statute a railroad company iti not bound to receive and carry live stock as common carriers. Michigan, S. &> N. I. R. Co. v. McDonough, i Mich. {N. P.) [Sufifi.] Ixxxvi. A railroad charter only binds the com- pany as a common carrier to transport such property as was usually transported by rail- road companies at the time the charter was granted; and where cattle were not trans- ported by rail at the time a charter was granted, the company is not bound to transport them as a common carrier, unless it holds itself out to the public as transport- ing them, or enters into a special contract to do so. Michigan, S. &» N. I. R. Co. v. McDonough, 21 Mich. 165. Evidence that a company had carried, and still offers to carry, live stock for hire for all who desired on terms, as to duties, lia- bilities, and relations, not recognized by the law of carriers, but in some respects variant, and in others repugnant thereto, does not tend to prove that such company is a carrier of live stock. Lake Shore &* M. S. R. Co. v. Perkins, 25 Afich. 329, 5 Am. Ry. Rep. 249. 2. Rcfkisal to receive, when proper. — A railway company is not liable for dam- ages sustained by reason of its refusal to receive cattle for carriage into a county, the local authorities of which require that before " any movement into the county district " a license shall be procured, the owners of such cattle having produced no license. Williams v. Great Western R. Co., 52 L. T. 250, 49/. P. 439. 3. Cattle-pens.f— Texas Rev. St. art. 4236, providing that railway companies " shall erect stations, suitable buildings, or iticlosures to protect produce, wares, and merchandise and freight of every descrip- tion," includes necessary stock-pens for • See also post, 22. f See also /oj/, 16, 63. I D. R. n.— .17. cattle tendered for shipment, and they must be made sufficiently safe. Gulf, C, &* S. F. R, Co. v. Trawiik, 8o Tex. 270, 15 5. W. Rep. 568, 18 i". W. Rep. 948. The carrier of live slock cannot exonerate itself from damages resulting from a breach of its duty to furnish suitable stock-pens, on the ground that the owner of the stock .saw the condition of the pens. Mason v. Mis- souri Pac. R. Co., 25 Mo. A pp. 473.— Rk- VIEWING Potts V. Wabash, St. L. & P. R. Co., 17 Mo. App. 394. Where stock tendered for shipment are placed in pens provided by the company it cannot relieve itself from liability for in- juries occurring through defects in the pens, by showing that the owner had knowledge of such defects. Gulf, C. &* S. F. R. Co. v. rra'wick,So Tex. 270, 15 .S". \V. Rep. 568, 18 S, W. Rep. 948.— Rkvikwed in Galveston, H. & S. A. R. Co. V. Wesch. 85 Tex. 593. Where a railway company to which are delivered pigs for carriage places them in a pen where they are injured by coming in contact with a covering of lime, it is no de- fense in an action for such injury for the company to allege that the lime was placed in the pen by order of the lord lieutenant in council, under the provisions of the Con- tagious Diseases Act 1878. Shaw v. Great S. 6- W. R. Co., L. R. 8 Ir. 10. 2. Duty to Furnish Cars. 4. Company must ftiriiish safe and secure cars.'*' — Carriers are bound to fur- nish safe and properly constructed cars in which to transport live stock, and suitable with reference to the kind and value of the stock. Coupland v. Housatonic R, Co., 61 Conn. 531, 23 Atl. Rep. 870. Potts v. Wabash, St. L. 6- P. R. Co., 17 Mo. App. 394.— DIS- TINGUISHING Miltimore v. Chicago & N. W. R. Co., 37 Wis. 190. Reviewing Illinois C. R, Co. V. Hall, 58 111. 410; Betts v. Farmers' L. & T. Co., 21 Wis. 87 ; Hawkins v. Great Western R. Co., 17 Mich. 63, 18 Mich. 433. —Reviewed in Mason v. Missouri Pac. R. Co., 25 Mo. App. 473. A carrier of live stock is under the same obligation to provide cars of sufficient strength as are carriers of merchandise. St. Louis &• S. E. R. Co. v. Dor man, 72 ///. 504. A carrier of live stock is only bound to provide suitable, safe, and sufficient cars * Duty of company to furnish suitable cars for transportation of live stock, see notes, 9 L. R. A. 449, 30 Am. & Eng. R. Cas. 48. # IMAGE EVALUATION TEST TARGET (MT-3) 1.0 tt&|2j8 12.5 ■iA Itt 12.2 S 144 ■" :s 1^ 12.0 u ,1.1 I.*"! 7 Photographic Sciences Corporalion 23 ¥VBT MAIN STRHT WIUTn,N.Y. 14SM (71*)t73-4S03 ;V ^ 788 CARRIAGE OF LIVE STOCK 5. i h* with proper motive power, and is not bound to provide " the safest and best approved motive power with the best appliances in use." Illinois C. K. Co. v. Haynes, 63 Miss. 485. Where a common carrier of live stock provides suitable cars, and exercises due care in other respects, it is not liable for in- juries to the animals resulting from their ownviciousness,or their struggles in efforts to escape ; but it \.> bound to provide cars strong enough '/ p event them escaping, even though thi,;, 're unruly or vicious. Smith V. New Haven &• N. R. Co., 12 Allen (Mass.) 53;.— QuoTKi' 'N Bo'vie 7>. Balti- more & O, R. Co., ' M \rth. (D. C.) 94; Mynani v. Syr?.cuso, ^ N. Y. R. Co., 71 N. Y. 180. The shipment of horse ; under a contract providing that the owner assumed the risk of loss or injury in " loading, unloading, conveyance, and ^-herwise, whether arising from negligence, default, or misconduct, gross or culpnble or otherwise, on the part of the railway company's servants, agents, or officers," does not relieve the company from the duty of furnishing suitable cars, Hawkins v. Great Western R. Co., 17 Mich. 57. — Reviewed in Potts v. Wabash, St. L, & P. R. Co., 17 Mo. App. 394. Mo. Rev. St. 1889, §§ 2598-2600, which require railroad companies to furnish double- decked cars for carrying sheep when re- quested, and impose a penalty for refusal to do so, are constiiuiional, being a reason- able regulation of common carriers. Emer- son v. St. Lonis &* H. R. Co., iii Mo. 161, 195. IV. Rep. 1 1 13. The defendant undertook to transport for the plaintiff a car-load of live stock. Held, that it was bound to furnish a suitable and safe car, and was responsible for any loss arising from neglect of duty in this partic- ular; and that the mere presence of the owner did not lessen this responsibility, if he had no power over the train nor right to make any change in the disposition of the cars, which were necessarily under the con- trol of the agents of the company. Peters V. New Orleans,/. &• G. N. R. Co., 16 La. Ann. 222. 5. Llabiltty for failure to mrnish cars.* — A common carrier of live stock is 'Liability of company for failure to furnish cars so thai stock could reach destination in tim? to be exposed for sale on Sunday, see 55 Am. & Eno. R. Cas. 344, abstr. bound to furnish suitable cars upon reason- able notice whenever it can do so with reasonable diligence, without jeopardizing its other business ; and when it is sued for failing to do so, the burden of showing that it could not is upon the company, even where the plaintiff has expressly pleaded the contrary. Ayres v. Chicago &* N. W. R. Co., 35 Am. &• Eng. R. Cas. 679, 71 Wis. 372, 5 Am. St. Rep. 226, 37 N. W. Kep. 432. —Followed in Pittsburgh, C, C. & St. L. R. Co. V. Racer, 5 Ind. App. 209. There is nothing to prohibit a railroad company from entering into a contract to furnish cars at a particular place and time for the shipment of stock, if they can be had; and where it appears that the cars were on hand, but were used in shipping other stock, the company is liable under its contract, though in the absence of such 'con- tract it would have been relieved under the circumstances from liability. Cross v. Mc- Faden, i Tex. Civ. App. 461, 20 S. W. Rep. 846. In the absence of a special contract, a common carrier of live stock is not liable for a failure to have cars in readiness on the day that the shipper has given notice that he would have the stock ready, where there is nothing to show that the notice given was a reasonable one, within the meaning of Wis. Rev. St. § 1798, providing that every railroad company shall, upon reasonable notice, when within its power to do so, fur- nish cars to any person applying therefor for the transportation of freight. Richard- son V. Chicago S. W. Rep. contract, a is not hable liness on the notice that where there lotice given the meaning g that every reasonable 3 do so, fur- ing therefor ;. Richard- , 18 Am. &* 5, 21 JV. W. mon carrier number of n indicated, ure for the the carrier, :itute a con- I furnish the furnish the dity of the act that the stock when '«rgA, C, C. i. App. 209, liiroad corn- its cars for , and which rs as agreed on, may be made the basis of recovery against the company for all damages caused thereby. It cannot claim that its liability did not attach until the signing of a bill of lading for the cattle, which were delivered at a subsequent day, and after ttie contract had been violated. The liability of the company for damages w^as for a breach of contract, which made delivery of the cattle at the time specified impossible; and arts. 281, 282, and 283 of the Rev. St. refer only to the liability of a common car- rier after delivery of the thing to be trans- ported and after signing a bill of lading therefor. Texas Pac. R. Co. v. Nicholson, 21 Am. &* Eng. R. Cas. 133, 61 Tex. 491. Texas &* P. R. Co. v. Hamm, 2 Tex. App. (Civ. Cas.) 436.— Following Texas Pac. R. Co. V. Nicholson, 61 Tex. 491. Where a railroad company which is a common carrier of live stock is requested, a reasonable time beforehand, to furnish cars suitable for the transportation of live stock at a specified time and shipping point, it is its duty to inform the applicant within a reasonable time whether it can furn'sh such cars at the time required ; and where it fails to give such notice, and the shipper, relying upon its performance of duty as a common carrier, prepares and has his stock ready for shipment at the time and place named, the company is liable for the damages suffered by him by reason of its failure to so furnish the cars. Ayres v. Chicago &* N. W. R, Co. , 35 Am. Eng. R. Cas. 437. 75 ^^"^ 596. SI ■^"'- Kep. 489. The carrier, however, is bound to see that the freighter has knowledge of a defect in a car. He is not bound to enter the ve- hicles to examine them. To exonerate the carrier he must show that defects not pal- pable and visible were pointed out, or prove such circumstances as will justly charge the freighter with knowledge of their existence. Harris v. Northern Ind. R. Co., 20 N. V. 232. The acceptance (or assent to the use) of a defective box-car, by the shipper, does not relieve a railroad company from liability for damages caused by such car. IValiing- ford v. Columbia &* G. R. Co., 30 Am. &* Eng. R. Cas. 40, 26 So. Car. 258, 2 S. E. Rep. 19. Ogdensburg &* L. C. R. Co. v. Pratt, 49 How. Pr. {N. J'.) 84. A railroad company placed a mare and a colt in an ordinary box freight-car, the roof of which was so low that the mare on lifting her head struck it, and it was without par- titions, so that she was thrown down by the motion of the cars and her leg was broken. But the plaintiff's agent, who had charge of the animals, was told of the defects of the car, and was offered a more suitable one if he would pay a higher but reasonable freight, but he decided to have this one used, and padded the rafters and placed a stuffed hood on the mare's head. Held, that the jury should have been charged that it was competent for them to find from these facts alone that the plaintiff assumed the risks incident to the unsuitableness of the car. Coupland V. Housatonic R. Co., 55 Am, &* Eng. R. Cas. 380, 61 Conn. 531, 23 At I. Re^. 870. In an action to recover for the loss of hogs which escaped from the cars while in the course of transportation, the bill of lad- ing provided tljat the hogs should be taken care of by the owner, and that the company le character t afterwnrd, juries to the other cars of carrying Chicago &• IVi's. 511. :ontracts to nt, and ac- beddiiig, he 2S resulting >««., V. «S- %. H. Cas. }■ jnd to see ! of a defect Iter the ve- anerate the cts not pa]- Jt. or prove charge the r existence. , 20 AT. V. tiie use) of ipper, does om liability Walliiig- 30 Am. iS- 2 S. E. Rep. V. Pratt, 49 nare and a ar, the roof e on lifting ithout par- own by ^he 'as broken, i charge of ects of the lie one if he ble freight, : used, and a stuffed i, that the hat it was these facts 1 the risks )f the car. iS Am. S. F. R. Co. V. McCorqiiodale, 35 Am. &> Eng. R. Cas. 653, 71 Tex. 41, 9 S. IV. Rep. 80. Railroad agents ?re placed at stations for the express purr ,e of receiving and for- warding freights und making contracts with reference thereto ; and where an agent has agreed to receive and ship stock at a par- ticular time the company is bound thereby, unless a delay in shipping was due to some unforeseen event, such as the law recognizes as sufficient. So held, where a railroad company insisted that its agent was not au- thorized to contract for the shipment of live stock during very cold weather. Pruilt V. Hannibal &• St. J. R. Co., 62 Mo. 527. It is the duty of the carrier when applied to for cars to advise the shipper of the sit- uation and circumstances which would likely occasion any unreasonable delay ; and if he does not so advise and obtain consent either express or implied, to the delay, he be- comes bound to carry the goods within a reasonable time ; and he will not be heard to say that his delay was caused by some con- tingency. And such unavoidable difficulty, though wholly unknown and unanticipated at the time of acceptance, will not excuse him. Guinn v. Wabash, St. L. 'i. &^ S. JV. Rep. stations for ng and for- ntracts with n agent has )ck at a par- ind thereby, due to some V recognizes a railroad was not au- shipment of tier. Pruitt Mo. 527. hen applied r of the sit- hich would : delay ; and ain consent lelay, he be- 'ds within a : be heard to i^some con- le difficulty, 'anticipated not excuse *• P. R. Co., 3 Pruitt V. 539. )ck cannot e by reason : it appears d the place red if they If, C. ridge was broken down, making it necessary to ship by another route. Guinn v. Wabash, St. L. i^ P. R. Co., 20 Mo. App. 453. A delay of twenty-five days in shipping one drove of hogs and one of forty-one days in shipping another, which were claimed by the company to be due to heavy snows, but where trains were oper- ated to some extent, are prima -facie evidence of negligence inexcusable, unless by the total cessation of all business by the company for the public. Pruitt v. Hanni- bal &» St. J. R. Co., 62 Mo. 527.— Reviewed IN Davis V. Wabash, St. L. & P. R. Co., 26 Am. & Eng. R. Cas. 315, 89 Mo. 340. Where the negligence of a carrier of live stock concurs in and contributes £0 the injury, he is not exempt from liability on the ground that the immediate damage was occasioned by the act of God or inevitable accident. Pruitt v. Hannibal &* St. J. R. Co., 62 Mo. SV — Approving Michaels v. New York C. R. Co., 30 N. Y. 564 ; Read v. Spaulding, 30 N. Y. 630. Bostwick z/. Bal- timore & O. R. Co., 45 N. Y. 712. Fol- lowing Wolf V. American Exp. Co., 43 Mo. 421 ; Reed v. St. Louis, K. C. & N. R. Co., 60 Mo. 199. Reconciling Clark z/. Pacific R. Co., 39 Mo. 184. Snowstorms of sufficient violence or dura- tion to obstruct the passage of trains are a sufficient excuse, during their continuance, for a delay by a carrier in shipping live stock ; but such violent storms or excessive cold weather should hardly be regarded as an extraordinary event in the latitude of northern Missouri during the months of December and January. Pruiit v. Hanni- bal 6- St. J. R. Co., 62 Mo. 527. A carrier cannot be permitted negligently to delay a shipment of cattle beyond the time it could well make and does customarily make shipments, and then excuse itself by showing that it still made the trip within the period stipulated as a reasonable time, as such interpretation would make the stipu- lation against public policy, which does not permit a carrier to be negligent with im- punity. Such stipulation means that the cattle were to be taken with all reasonable dispatch, and was a protection against a failure so to dispatch them. Leonard v. Chicago &* A. R. Co., 54 Mo. App. 293. II. DELIVEBT TO TH£ C&BBIEB. 15. SufScieucy, generally. — Where plaintiff has contracted to ship a horse, and has brought him to the place designated by the company's agent for loading, and the horse is injured while being loaded by rea- son of a rotten gangway breaking down, there is such a delivery as to render the company liable for a failure to provide safe means of loading. McCuUough v. Wabash W. R. Co., 34 Mo. App. 23 —Quoting Mason v. Missouri Pac. R. Co., 25 Mo. App. 473- Where the owner of cattle, in considera- tion of a reduced rate, contracts with the carrier to take personalchargeof them while being carried, and to assume the risk of trans- portation, there is no complete delivery to the company, and it will only be liable for injury or loss resulting from its gross negligence or willful misfeasance. Illinois C. R. Co. v. Morrison, i<)Ill. 136. — Followed in Illinois C. R. Co. V. Adams, 42 111. 474. Quoted in Annas v. Milwaukee & N. R. Co., 27 Am. & Eng. R. Cas. 102, 67 Wis. 46, 57 Am. Rep. 388, note. Where there is no evidence to show that a railway company's porter was given au- thority, or held himself out as having author- ity, to receive or contract for the carriage of animals in any other than the usual way, viz., by the porter and the shipper both sij^n- ing a consignment note, a railway company is not liable for the non-delivery of animals received by a porter without conforming to such practice. Slim v. Great Northern R. Cc, 14 C. B. 647, 2 C. L. R. 864, 8 Jur. 1 119, 23 Z./. C. P. 166. Where a rrvntract was entered into by which four horses were to be transported from Washington to Baltimore on the rail- road of defendant, and the horses were to be accompanied by their grooms, if the horses, in accordance with the agreement, were ad- mitted to the inclosure where the defendant usually received such freight, and the de- fendant notified that they were there ; and if the process of loading them had been par- tially completed by the shipment of three of the horses .with their grooms — held, that al- though the agents of both parties were engaged in sucli lor.ding when the injury occurred, these facts would constitute a de- livery of the animali. Bowie v. Baltimore &* O. R. Co., I MacArth . {D. C) 609. Such an agreement is no waiver of the strict responsibility of the defendant as a common carrier, any further than it might be modified by the fact that persons were to be sent by the owner dong with the prop- 744 CARRIAGE OF LIVE STOCK, 1«-19. erty; and if the property is injured through the negligence of the agents of the defeiid- ^nt, it is liable for the damage; and if the injury is caused by the act or conduct of the owner's servants, the defendant will not be responsible. Bowie v. Baltimore &* O. R. Co., I MacArth. {D. C.) 609. 16. Receiving cattle iu stock-pens.* — The liability of a railroad company, as a common carrier of live stock, attaches when the stock are received in its pens for trans- portation. Gu//, C. &* S. F. R. Co. V. Tra- wick, 80 Tex. 270, 15 S. W. Rep. 568, 18 S. W. Rep. 948.— Reviewing East Line & R. R. R. Co. V. Hall, 64 Tex. 620. Such liability attaches from the moment of such delivery, and not from the time the car in which they are loaded is put in motion. Mason v. Missouri Pac. R. Co., 25 Mo. App. 473.— Reviewing Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527. The reception of hogs in the pens of a common carrier for transportation is equiv- alent to an obligation to forward them with- out unnecessary delay, Pruitt v. Hannibal &* St. J. R. Co., 62 Mo. 527.— Approving Deming v. Grand Trunk R. Co., 48 N. H. 455. — Reviewed in Mason v. Missouri Pac. R. Co., 25 Mo. App. 473. Where cattle intended for shipment are placed in a railroad company's stock-pens at a station on its road, the refusal of such company afterward to receive and carry such cattle excuses any further delivery, or offer to deliver, for transportation on the part of the shipper. Louisville, N. A. &^ C, R. Co. V. Godman, 104 Ind. 490, 4 N. E. Rep. 163.— Followed in Louisville, N. A. & C. R. Co. V. Flannagan, 113 Ind. 488. Where a common carrier of live stock re- ceives cattle for immediate shipment, it is liable for a loss that occurs by their breaking through defective pens before they are loaded on the cars. Mason v. Missouri Pac. R. Co., 25 Mo. App. 473.— Quoted in McCul- lough V. Wabash W. R. Co., 34 Mo. App. 23- Mere permission, to the owner of cattle, by the agent of a railroad company to place them in the company's cattle-pens does not make the company liable for a loss resulting from their escaping therefrom, where it ap- pears that at the time of escaping the cattle had not been received for shipment, nor had the company become responsible therefor, * See also ante, 3 ; post, 53. or chargeable with the escape by reason of any negligence on its part. Ft. Worth &* D. C. R. Co. v. Riley, {Tex. App.) 27 Am. &* Eng. R. Cas. 49, i 5. ^r. Rep, 446. A railroad company holding itself out as a carrier of live stock is obliged to provide suitable facilities for receiving and discharg- ing such stock. In certain cases this duty cannot be performed except by providing in- closed yards in which tlie stock may be re- ceived or discharged ; and the carrier can- not, in addition to the customary and legitimate charges for transportation, make a special charge for merely receiving or de- livering stock in and through such yards. Covington Stock Yards Co. v. Keith, 49 Am. &* Eng. R. Cas. 149, 139 [/. S. 128, 11 Sup. Ct. Rep. 461.— Followed in Oregon S. L. & U. N. R. Co. V. ilwaco R. & N. Co., 51 Fed. Rep. 611. 17. Duty of carrier to ilirnish fa- cilities for loading.— In respect to the mere loading and unloading of live stock at a particular city, the carrier is required to furnish such suitable and convenient ap- pliances as are reasonably sufficient for the business at that place. Covington Stock Yards Co. v. Keith, 49 Am. &* Eng. R. Cas. 149, 139 U. S. 128, II Sup. Ct. Rep. 461. 18. Duty of shipper to have car loaded before arrival of train. Where the ways and means. for loading are in proper condition, and the duty of loading is upon the shipper, it is his duty, to have the car loaded so that the train which is to move it may not be unreasonably delayed, Louisville, N. A. &* C. R. Co. v. Godman, 104 /nd. 490, 4 N. E. Re'p. 163. Where cattle for shipment were placed in cars and the train that was expected to take them passed the station between ten and eleven o'clock at night, the owner was not negligent in allowing thtm to remain in the cars until nine o'clock of the next morning before he took them out. Illinois C. R. Co. V. Waters, 41 ///. 73. 10. Liability tor injuries during loading. — A railroad which undertakes to transport live stock is liable as a common carrier, though the shipper agneesto furnish the cars and to load and unload them en- tirely. Fordyce v. MFlynn, 56 Ark. 424, 19 S. W. Rep. 961. A carrier who relied upon the undertak- ing of a shipper of live stock to load and unload them will not be liable for an injury to the stock occasioned by the negligent CARRIAGE OF LIVE STOCK, 20,21. "45 by reason of /. Worth &* .) 27 Am. &* 46. itself out as d to provide nd discharg- es this duty Toviding in- may be re- carrier can- omary and ation, make iving or de- such yards. ?ith, 49 Am. 28, u Sup. regon S. L. : N. Co., SI iriilsh fa- )ect to the ive stock at . required to /enient ap- ient for the gton Stock ng. R. Cas. p. 461. have car n. Where ng are in f loading is have the hich is to ly delayed. odman, 104 J placed in :ed to take n ten and er was not lain in the 1 morning s C. /?. Co. I diiringr ertakes to I common to furnish them en- i. 424, 19 undertak- load and an injury negligent manner in which the loading was done, though there was a general duty resting upon the carrier to see that they were prop- erly loaded. Fordyce v. M'Flynn, 56 Ark. 424, 19 5. W. Rep. 961. Where the property consists of race- horses, accompanied by the agent of the owner, assisted by other persons in the em- ployment of the owner, three of whom are race-riders for the horses, and who travel with and take care of them ; and where there was a difficulty in loading one of the horses on the car, such agent insisting on loading it as he thought best, after having been re- quested by the railroad employes to place the horse under their control, the owner would not be entitled to recover for an in- jury to the horse sustained under such cir- cumstances. Bowie v. Baltimore &^ 0. R. Co., I MacArth. (D. C.) 94.— Quoting Smith V. New Haven & N. R. Co., 12 Allen (Mass.) 531 ; Michigan S. & N. I. R. Co. v. McDonough, 21 Mich. 165. On the trial of an action for injury to a race-horse while being loaded upon a car, where there is a conflict of testimony as to whether the agents of the road or those of the owner had charge of the horse when the accident occurred, it is erroneous to charge the jury that, if the ser- vants or agents of the owner refused obedi- ence to the agents of the road the latter would still be responsible for the injury; and that it was their duty, if they could not con- trol the servants of the owner, to refuse transportation of the horse, in order to escape such responsibility. Bowie v. Balti- more . McDonouph, 21 Mich. 165; Dwight v. Brewster, i Pick. (Mass.) 50; Carr w. Lancashire & Y. R. Co., 7 Exch. 711.— Approved in Atchison & N. R, Co. V. Washburn, 5 Neb. 117; Bamberg V. South Carolina R. Co., 9 So. Car. 61. Not followed in Lupe v. Atlantic & P. R. Co., 3 Mo. App. 77. — Missouri Pac. R. Co. V. Graves, 2 Tex. App. {Civ. Cas.) 594. Rix/ord\. Smith, 52 A^. H. 355, 13 Am. Rep. 42. Kansas Pac. R. Co. v. Nichols, 9 Kan. 235, 5 Am. Ry. Rep. 275.— EXPLAINING AND distinguishing Michigan S. & N. I. R. Co. V. McDonough, 2i Mich. 165. Quoting Kimball v. Rutland & B. R. Co., 26 Vt. 247 ; Great Western R. Co. v. Hawkins, 18 Mich. 427, — Approved in Atchison & N. R. Co. V. Washburn, 5 Neb. 117; Bamberg v. South Carolina R. Co., 9 So. Car. 61. — East Tenn., V. &^ G. R. Co. V. Johnston, 22 Am. &• Eng. R. Cas. 437, 75 Ala. 596, 51 Am. Rep. 489.— Approved in Central R. & B. Co. v. Smitha, 85 Ala. 47, 4 So. Rep. joi.—Moulton v. St. Paul, M. &• M. R. Co., 1 2 Am. &" Eng. R. Cas. 13, 31 Minn. 85,47 Am. Rep. 781, 16 N. W. * Liability of carriers of live stock. General rule. Cases in which liability held not to be that of common carriers. See note, 67 Am. Dec. 208. Duty c.( carrier of live stock overtaken by snowstorm. Pleading act of God. See 45 Am. & Eng. R. Cas. 351, adstr. .'I-: 746 CARRIAGE OF LIVE STOCK, 21. 1 Rep. 497. Pringh v. Vennsyhmnia R. Co., 3 Phila. {Pa.) 82. Lupc v. Atlantic &* P. R. Co., 3 Mo. App. 77. Atchison &* N. R. Co. V. Washburn, 5 Neb, i\7,\^ Am. Ry. Rep. 139. — Approving Kansas Pac. R. Co. v. Reynolds, 8 Kan. 634; Kansas Pac. R. Co. ■7: Nichols, 9 Kan. 248; Wilson v. Hamilton, 4 Oliio St. 722 ; Palmer v. Grand Junction R. Co., 4 M. & W. 749. Approving and QUOTING Kimball v. Rutland & B. R. Co., 26 Vt. 247. The common-law liability of carriers of merchandise applies to carriers of live stock, so far as it may be applicable ; and it is only modified so far as made necessary by the peculiar character of the property to be transported. McCoy v. Keokuk &* D. M.R. Co., 44 Iowa 424. The duty of a railroad in carrying live stock is the same as a carrier of goods, so far as the route is concerned. Michigan C. R. Co. v. Myrick, 9 Am. &* Eng, R, Cas. 25, 107 I/. S. 102, I Sup. Ct. Rep. 425. When a common carrier undertakes to transport fat cattle to niarket in a live stock train it must be held to have undertaken a business which calls for diligence and dis- patch commensurate with the trust it has accepted. Leonard \. Chicago &*A. R. Co., 54 Mo. App. 293. A carrier of live stock, in the absence of a special agreement, is not liable for injuries to the animals which could not be foreseen or prevented by the exercise of due dili- gence and care. Where there is a special contract the carrier's liability will be regu- lated by it; in which case he will be held only to the duties specified in the agreement, or for injuries resulting from negligence or wilfulness. Penn v. Buffalo &* E. R. Co., 49 N. Y. 204, 3 Am. Ry. Rep. 355 ; revers- ing 3 Lans. 443. — Applied in Steiger v. Erie R. Co., 5 Hun (N. Y.) 345. Quoted in Central R. & B. Co. v. Smitha, 85 Ala. 47, 4 So. Rep. 708. While a carrier, when overtaken by an occurrence known as the act of God, is not bound to the highest degree of diligence to preserve the property from injury, yet in such an emergency he is required to bestow such care as an ordinarily prudent person or carrier would use under like circum- stances, and if he fails to do so and loss re- sults therefrom, he is liable. Black v. Chi- cago, n. &> Q. R. Co., 30 Neb. 197, 46 N. W. Rep. 428.— Quoting Gillespie v. St. Louis, K. C. & N. R. Co., 6 Mo. App. 554. If the owner of live stock request ihat they be transported by a company, as com- mon carriers, he is only to pay a reasonable compensation therefor, and may refuse to enter into any special contract on any other terms, and the company will be responsible for their safe carriage and delivery ; and this is so whether transportation of cattle is re- garded as the company's principal business or whether it is incidental and subordinate. Kimball v. Rutland 3^ B. R. Co., 26 17. 247. — Following Carr v. Lancashire R. Co., 14 Eng. L. & Eq. 340.— Approved and quoted in Atchison & N. R. Co. 7/. Washburn, 5 Neb. 117. Railroads, as carriers of live stock, are not liable to the same extent as carriers of mer- chandise, but are required to use reasonable care and diligence. Baker v. Louis7/ille &* N. R. Co., 16 Am. &• Eng. R. Cas. 149, 10 Lea (Tenn.) 304.— Followed in Louisville & N. R. Co. V. Wynn, 45 Am. & Eng. R. Cas. 312, 88 Tenn. 320, 14 S. W. Rep. 311. If it be conceded that carriers of live stock do not assume the same liability as carriers of merchandise, still they are bound to exercise ordinary care. German v. Chi- cago &» N, IV, R. Co., 38 Iowa 1 27. A common carrier of live stock is bound to use reasonable diligence, and, failing to do so, the owner may recover damages for an injury or loss to the stock. Coles v. Louis- ville, E. '. &* .s: 173, \o/ur. X. .v. 673, 33 L.y. Q. B. 233. 12 W. R. 1054, 10 L. 7. 609; iipfirmed in 13 W.R.n%,l^L.J.Q.B. 85. 23. How fur carrier i8 an insurer. "* — The common law rule which made car- riers practically insurers of property while l)eing carried by them has, from the neces- sity i)f the case, been in a measure relaxed in the case of live stock. Coupland v. //ousatonk R. Co., 61 Conn. 531, z^Atl. Rip. 870. But the company is bound to the exercise of a high degree of diligence, such as a prudent and careful man would exercise in such matters, and is liable for ordinary neg- ligence. Louisville, C. &* L. R. Co. v. Hedger, 9 lUish {Ky.) 645. A common carrier of live stock is not an insurer against injuries unavoidably result- ing from the inherent nature or propen- sities of the animals, or against loss caused by the act of God. Black v. Chicago, B, &• Q. R. Co., 30 Neb. 197, 46 A^. W. /?*•/. 428. A common carrier of chattels is not bound to insure them against their own fault or the fault of their owner, and is not liable to him for loss or damage caused by an inherent defect in the thing or animal carried without any fault of the carrier, or by the manner of packing or loading, the responsibility of which the owner has assumed, or by any want of care which the owner was to exercise. Rixford v. Smith, 52 A^. H. 355, 13 Am. Rep, 42. — Quoting Coggs v. Bernard, 2 Ld. Raym. 900 ; Forward v. Pittard, i D. & E. 27. Carriers of live stock are not absolutely liable as insurers for injuries caused by the kicking of one horse by anotlier, nor for an injury caused by the owner of stock at- taching a halter to the jaws of a horse in a manner which might cause or increase restiveness and bad temper, nor for a fail- ure on his part to remove the horse's shoes. Evans \. Fit c hburg R. Co., 11 1 Mass. 142. — Quoting Hall v. Renfro, 3 Mete. (Ky.) 51 ; Conger v. Hudson River R. Co., 6 Duer (N.Y.)37S. A railroad company is not responsible for losses occasioned by cattle dying or being injured by heat, unless the loss or damage has been occasioned by some negligence or misfeasance of the company or of its servants. Maslin v. Baltimore &• O, R. Co., * See also ante, 1. 14 ff. I'a. 180. Not KOI, lowing Lake Shore & M, S. U. Co. 7-. Perkins, 25 Mich. 329, 12 Am. Rep. 275; Louisville, C. & L. R. Co. V. Hedger, 9 Bush (Ky.) 645, 15 Am. Rep. 740. 23. lliMkH roHiiltiiif; from (liseuMC or from inliercnt vice.- The law does not hold carriers of live stock liable for injuries which result from the sickness or violence of the animals, or for those due to their vicious- ness or restlessness excited by the carriage, where there is nothing to show improper loading or transportation. Illinois C. R. Co. v. Brelsford, 13 ///. App. ?5i. Where live freight is carried, the shipper, in order to hold the carrier for injury to it, must show that a human agency caused or concurred in causing the injury, the risk resulting from disease or vice inherent to such freight being one which the shipper, and not the carrier, assumes. Hance v. Pacific Exp. Co., 48 Mo. App. 179.— Quoting Clark V. Rochester & S. R. Co., 14 N. Y. 573. — Great Western R. Co. v. Blo%ver, 41 L. J. C. P. 268, L. R. 7 C. P. 655, 20 W. R. 776, 27 L. T. 883, 3 Ry. &- C. r. Cas. xii. 24. Injuries oceaHioned by tlic in- herent nature or propensities of tlie animals.* — The genial rule of the abso- lute liability of a common carrier for the safe transportation and delivery of property committed to it for carriage is applicable, although the property consists of live stock, but subject to the exception that it is not an insurer against injuries re- sulting from the inherent nature or pro- pensities of the animals, and without fault of the carrier. Lindsley v. Chicago, M. (S- St. P. R. Co.,i\ Am. &^ Eitg. R. Cas. 86, 36 Minn. 539, 33 A^. W. Rep. 7.— Ap- proved in Louisville & N. R. Co. v. Wynn, 45 Am. & Eng. R. Cas. 312,88 Tenn. 320, 14 S. W. Rep. ^i I. —South 6- A'. Ala. R. Co. v. Henlein, 52 Ala. 606. Western R. Co, v. Harwell, 45 Am. &' Eng. R. Cas. 358, 91 Ala. 340, 8 So. Rep. 649. Coupland v. Housatouic R. Co., 55 Am. &> Eng. R. Cas. 380, 61 Conn. 531, 23 Atl. Rep. 870. Indianapolis &^ St. L. R. Co. V. Jurey, 8 ///. App. 160. Central * Liability of carriers of live stock for injury or loss resulting f'om the nature or propensities of the animals, see note, 67 Am. Dkc. 210. What are injuries resulting from the inherent nature and propensities of animals for which car- rier is not liable, and liability where injury is caused by combined negligence of carrier and propensities of animals, see note, 31 Am. & Eng. R. Cas. 91. 748 CAKklAGIi OF LIVli STOCK, 24. s \ rM Jf. &* li. Co. v.S»u//ut, 85 .l/it. 47, 4 So. KiJ>. 708.— Approving Clarke v. Rochester & S. R. Co.,i4N. Y. 570; Michigan S.& N. I. R. Co. V. McDonough, 21 Mich. 165; East Teiin., V. & G. R. Co. v. Johnson, 75 Ala. 596. Quoting Penn. v. Buffalo & E. R. Co., 49 N. Y. 204.— iV. Louis &> S. F. K. Co. V. Cliirk, 48 Katt. 321, 29 J'ac. Rep. 312. Hall V. Renfro, 3 Mete. {Ky.) 51.— Quoted IN Evans v. Fitchburg R. Co., in Mass, 142. — Evans v. Fitchburg R. Co., iii Mass. 142. JiroTVM V. iraias/t, St. L. i^ P. R. Co., 18 Mo. App. >i68. -Following Potts v. Wabash, St. L. & P. R. Co., 17 Mo. App. y^s.—My- Hard V. Syracuse, B. t&- A^. Y. R. Co., 7 1 N. Y. 180, 15 Am. Ry. Rep. 412, 27 Am. Rep. 28; reiursing 7 Hun 399. — APPLYING Palmer v. Grand Junction R. Co., 4 M. & W. 749. Distinguishing Cragin v. New York C. R. Co., 51 N. Y. 61. Following Clarke v. Rochester & S. R. Co., 14 N. Y. 573. Quoting Smith v. New Haven & N. R. Co., 12 Allen (Mass.) 531.— Followed IN Holsapple v. Rome. W. & O. R. Co., 86 N. '^.271.— Louisville &^ N. R. Co. v. Wynn, 45 Am. &'Eng. R. Cas. 312, 88 Tenn. 320, 14 S, IV, Rep. 311.— Approving Hart v. Penn- sylvania R. Co., 112 U. S. 331; Lindsley z/. Chicago, M. & St. P. R. Co., 36 Minn. 539; Ayres v. Chicago & N. W. R. Co., 71 Wis. 372, Following Baker v. Louisville & N. R. Co., 10 Lea (Tenn.) 304; Nashville & C. R. Co. V. Jackson, 6 Heisk. (Tenn.) 271 ; East Tenn., V. & G. R. Co. v. Hale, 85 Tenn. 69; Smitha v. Louisville & N. R. Co., 86 Tenn. 198 ; Louisville & N. R. Co. v. Ma- son, II Lea (Tenn.) 116. — Ayres v. Chicago 6- A^. W. R. Co., 35 Am. &> Eng. R. Cas. 679, 71 IVis. 372, 5 Am. St. Rep. 226, 37 N. IV. Rep. ^12. — Quoting Richardson v. Chicago & N. W. R. Co., 18 Am. & Eng. R. Cas. 530, 61 Wis. 601 ; Johnson v. Midland R. Co., 4 Exch. 372.— Approved in Louisville & N. R. Co. V. Wynn, 45 Am. & Eng. R. Cas. 312, 88 Tenn. 320, 14 S. W. Rep. 311. And for a stronger reason is this so where they are shipped under a contract requiring the owner to accompany them and to take the charge and oversight thereof. IVabash, St. L. S. R. Co., 14 A^. Y. 570.— Applying Boyce v. Anderson, 2 Pet. (U. S.) 150; Palmer v. Grand Junction R. Co., 4 M. & W. 749.— Approved in Central R. & B.Co. V. Smitha, 85 Ala. 47, 4 So. Rep. 708 ; Bam- berg V, South Carolina R. Co., 9 So. Car. 61. Followed in Mynard v. Syracuse, B. &. N. Y. R. Co., 71 N. Y. 180. Quoted in Hance?/. Pacific Exp. Co., 48 Mo. App. 179. A carrier of live stock is not liable for a loss or injury that results from overexertion or overheating of the animal from its own disposition, which is unprovoked by any misconduct of the carrier or its servants. Chicago, B. &* Q. R. Co. v. Owen, 21 ///. -^PP- 339- A railroad company is not liable for the death of a bullock which, after he has been properly fastened in a proper car, by his own efforts and exertions releases himself. Great Western R. Co. v. Blower, 41 L. J. C. P. 268, L. R. 7 C. P. 655, 20 IV. R. 776, 27 L. T. 883. Where the cause of damage to live stock for which recompense is sought from a car- rier is connected with the character or pro- pensities of the animals undertaken to be carried, the ordinary responsibility of the carrier does not attach ; but where it is shown that such propensities are active only while tlie car in which the animals are carried is standing still, and it appears that the damage in question occurred on ac- count of unusual delay caused by accident, and that the damage might have been avoided by unloading the animals or by giving them personal attention during the it CARRIAGE OF LIVE STOCK, 25-27. 749 Miss. 319, 6 • S. A\ Co. V. Chicago, At, .a: Crij.jsi, ode of con- lits and in- sof securing 9 of goods, or by refus- I'ery precau- tempting to each other; not liable if id foresight )\vever, the ed with the iniinals car- ties of the V. Rochester -Applying J. S.) 150; o., 4 M. & R. & B. Co. 708 ; Bam- 3o. Car. 61. cuse, B. &. lUOTED IN •■ App. 179. liable for a rerexertion >m its own ed by any ;s servants. lc to the vitality of the fk-eight.— Tlie common- law rule making common carriers of mer- chandise liable as insurers, except for injury or loss resulting from the act of God or the public enemy, is modified as to carriers of live stock, to the extent of relieving them from liability for injuries or loss resulting by reason of the vitality of the freight. Cragin v. New York C. R. Co., 51 A'. >'. 61, 4 Am. Ry. Rep, 418.— Applied in Nicholas V. I,\w York C. & H. R. R. Co., 4 Hun (N. Y.) 327; Steiger v. Eric R. Co., 5 Hun (N. Y.) 345. Distinguished in Mynard v. Syracuse, B. & N. Y. R. Co.. 71 N. Y. 180. Followed in Hayman v. Philadelphia & R. R. Co., 8 N. Y. S. R. 86. 22 J. & S. 158. Quoted in Rubens v, Ludgate Hill Steam- ship Co.. 20 N. Y. Supp.481. Reconciled IN Mynard v. Syracuse, B. & N. Y. R. Co., 71 N. Y. \%o.—Dow V. Portland Steam Packet Co., 84 Me. 490, 24 All. Rep. 945. Hayman v. Philadelphia &* R. R. Co., 8 N. V. S. R. 86.— Following Cragin v. New YorkC. R. Co., 51 N. Y. 61. In the transportation of live stock, the carrier, in the absence of negligence, is not responsible for such injuries as occur in consequence of the vitality of the freight ; that is, such injuries as are able to occur to live animals by reason of their being alive, and not to ordinary merchandise. Chicago, R, I, &* P. R. Co, v. Harmon, 12 ///. App. 54. Where a mare while in a car becomes overheated by reason of the hot weather, and the carrier does not by any act of negligence contribute to the result, it cannot be held liable for her death ; that is. if the mare died from her lack of inherent vitality and not from any want of proper ventilation or care. Chicago, R. I. &* P. R, Co, v. Harmon, 1 2 ///. App, 54. 26. Injuries not attributable to any known cause. — A railway company is not liable for an unexplained injury to a horse delivered to it for carriage, where it shows that nothing unusual occurred to the train during the journey. Kendall v, London &* S, W, R. Co., 41 L.J, Ex. 184. L, R, 7 Ex, 373, 20 W, R, 886. 26 L, T, 735. Where it appears that the hoof of a mule was torn off, and there is nothing to show whether it was done 011 tlie train or after it left it. but it does appear that the car in which it was carried was suitable, that the track was in good ccjtidition, that the equipments and appliances of the train were adequate, and that there was no culpable delay in the transit, and no fault, negligence, or want of care on the part of ihe carrier in handling the mule or in the innagement of the train, the carrier is not l'ali.( for tlie injury, which may have been self-inflicted or caused by oilier mules in the .iam''"■ considcra- nd the fact was but a "oupland v. >if . R. Can, 'oocl and :ompany to Its on the stock, and •orted died :id that the '. (^ W. R. "OLLOWING 111. 474. stock for ined by the not being n of proof bility rests W. K. Co. negligence ip at a sta- water can- 1 its train ; cplain why I show that 'edo, IV. Eng. R. Cas. 666, 72 Tex. 127, 9 S. W. Rep. 749, 2 L. R. A.7S. Where live stock are shipped under a con- tract that the shipper shall feed and water them while en route the carrier cannot avoid liability for a failure to properly feed and water, without showing that it offered the shipper reasonable facilities for doing so ; neither will the shipper's failure to notify the carrier of his wish and readiness to feed and water affect the carrier's liability. Taylor, B. &• H. R. Co. v. Montgomery, 4 Tex. App. (Civ. Cas.) 401, 16 S. IV. Rep. 178. 32. Retlisal to allow shipper to 11 11- load. — Where cattle are shipped under a contract providing that the owner shall accompany tliem and care for them in feed- ing and watering, and shall assume the risk of damage sustained by delay, and the train is delayed by a flood submerging the track, the company is not bound to unload the cattle ; but, upon being requested to do so, it is bound to place the cars in a convenient and accessible place, if practicable, where the owner can unload and care for the stock; and if it fail;, to do so it is liable for injuries. Bi7/s v. New York C. R. Co., 3 Am. W, R. Co. V. Sutherland, 89 Fa. 703. 34. Penalty for keepinjir cattle in cars more than 28 consecutive hours.— Under U. S. Rev. St. § 4386, for a railroad company to keep live stock upon its cars for more than twenty-eight con- secutive hours, without unloading for rest, water, and food, is negligence per se ; and such company is liable, not only for the penalty prescribed in the statute, but also for any damage or injury that may thereby be sustained by the owner of the stock. Nashville, C. &• St. L. R. Co. v. Heggie, 86 Ga, 210, 12 S, E, Rep, 363. The above statute does not apply to the carriage of animals between points in the same state, but only where the carriage is from one state to another. United States v. East Tenn., V. &* G. R, Co , g Am, &* Eng R, Cas, 259, 13 Fed. Rep. 642. The statute is within the power of con- gress to regulate interstate commerce. United States v. Boston &* A. R. Co., 1 5 Fed, Rep, 209. "The penalty provided is not to be reck- oned upon the number of animals confined, the confinement of dl being carried consti- tuting but one offense. United States v. Boston «S- A. R. Co., 1 5 Fed. Rep. 209. One of several connecting lines is liable m ■■(n— - CARRIAGE OF LIVE STOCK, 35, 36. r53 only for a violation of the statute which occurs on its own line ; but where the stock have been confined a part of the twenty- eight hours on one line, that time is counted against the next succeeding carrier in de- termining whether it violates the statute. United States v, Louisville &- N. R. Co., i8 Fed. Rep. 480. A violation of the statute will not of itself render the carrier liable where the animals are shipped under a special con- tract providing that the owner shall accom- pany them and care for, feed, and water them on the road, and where there is no evidence to show wiiat part of the damages was caused by a failure to feed and water. Missouri Pac. R. Co. v. Texas &* P. R. Co., 41 Fed. Rep. 913. The statute imposes a penalty "unless prevented from so unloading by storm or other accidental causes." There is a further exception where animals " have proper food, water, space, and opportunity to rest" on the cars, //eld, that in addition to the pen- alty imposed by statute, a railway company which failed to comply with the above re- quirement would be liable in damages to the owner of the stock ; but that to state a cause of action the petition must show that the case is not within the exceptions named. //ale V. Missouri Pac. R. Co., 36 Ned. 266, 54 iV. IV. Rep. 517. The statute does not confer upon carriers the privilege of confining the animals for twenty-eight hours, if doing so would be negligent. The question of negligence on the part of the carrier in handling stock, unloading, feeding, and watering, for which a civil action might lie for damages, io still left as at common law, notwithstanding the statute. Missouri Pac. R. Co. v. /vy, 79 Tex. 444, 155. W. Rep. 692. 35. Penalty for failure to feed dur- ing transit. — Under a statute which im- poses upon common carriers a penalty for failure to feed live stock during transit, the statutory grounds of liability should be particularly set forth in an action for the penalty, and should be clearly established by the proof; and where two places were alleged to be the feeding-stations on the route, and the evidence shows that the cat- tle were fed atone, and it is not satisfactorily shown that they were not fed at the other, there can be no recovery. Good v. Galveston, H. road for an unnecessary delay in shipping cattle, whereby they are so reduced and emaciated that the owner could not sell them for the price that he had contracted for, in the absence of an allegation and proof that the company knew that the cattle were being shipped to fill a contract, or that it was important to have them at their destination at a given time. Gulf, C. &• S. F. R. Co. v. Cole, 4 Tex. App. (Crv. Cas.) 144, 16 S. W. Rep. 176. 4. Negligence on Part of Company. 39. When presumed— Burden of proof.* — The burden of proof rests upon a carrier of live animals to show that loss resulted, not from its negligence, but from some other cause for which it was not re- sponsible. Louisville «&* A'^. R. Co. v. Wynn, 45 Am. &* Eng. R. Cas. 312, 88 Tenn. 320, 14 S. W. Rep. 311.— Quoted in Louisville & N. R. Co. V. Manchester Mills, 88 Tenn. 653, 14 S. W. Rep. 314. Where a carload of horses are shipped, but two are missing at the place of destina- tion, in the absence of any explanation the carrier is liable for their value. Missouri Pac. R. Co. V. Texas &* P. R. Co., 41 Fed. Rep. 913. If property be lost in an injurious acci- dent happening to or by reason of that which a carrier has provided for its trans- portation, the law, imposing the exercise of utmost care upon him, presumes the accident to be due to the want of that care, and puts upon him the burden of successfully reliev- ing himself from that presumption. But in an action to recover for live stock lost in transitu, when the fact of an " injurious ac- cident" is not shown to exist, the pre- sumption of negligence on the part of the defendant does not arise, and the burden of proving it remains with the plaintiff. Pennsylvania R. Co, v. Raiordon, 119 Pa. St. 577, 12 Cent. Rep. 177, 13 Atl. Rep. 324, 21 W. N. C* 283. International &> G. N. R. Co. V. Smith, i Tex. App. {Crv. Cas^) 484. Smith v. Midland R. Co., 57 L. T. 813, 6 Ry. 6r» C. T. Cas. Ixviii. In an action on a contract for the car- * Presumption of negligence where live stock ist, 147, 148. ury to live 17 L. R. A. riage of a horse, charging that the liorse was killed while in transit through the neg- ligence of the carrier, it is not essential for the plaintiff to establish the negligence in the flrst instance, since, in the absence of a special contract, the carrier would ordina- rily be liable under his common-law obliga- tions. Doan V. St. Louis, A'. &* N. IV. R. Co. 38 Mo. App. 408. The mere fact that a horse was shipped in good condition, and was delivered sick and dying, is not enough to charge the carrier with negligence, or to charge him with the burden of proof to show that he was not in fault. Husseyv. Saragassa, 3 Woods {U. S.) 380. The loss or injury of live stock while in the custody and care of the company for transportation is prima-facie evidence of negligence, but where the owner of the stock agrees to load and unload them, and does in fact do so, the burden of proof is upon him to show negligence causing such loss or injury. Louisville, C. 6- L. R. Co. v. Hedger, 9 Bush (A>.) 645. — Not followed IN Maslin v. Baltimore & O. R. Co., 14 W. Va. 180. Quoted IN Terre Haute & L. R. Co. V. Sherwood, 132 Ind. 129. 40. Exposure in stock-yard during snowstorm. — The defendant accepted for transportation plaintiff's live stock, consist- ing of cows and calves. Plaintiff paid the freight and was given a receipt, which con- tained no express contract or limitation of the defendant's common-law liability. The train which carried the stock was delayed by a snowstorm and the cars containing tbem were put in a stock-yard. Some died, others were injured by cold and exposure. Held, that the defendant was liable for dam- ages as a common carrier. Feinberg v. Dela- ware, L. &•• W. R. Co., 45 Atn. &* Eng. R. Cas. 348, 52 N./. Z. 451, 20 All. Rep. 33. 41. Failure to provide proper bed- ding.— A failure of a railroad company to provide proper bedding for live stock dur- ing transportation is not in itself prima-facie evidence of negligence. Easl Tenn., V. &^ G. R. Co. v. Johnston, 22 Am. &* Eng. R. Cas. 437. 75 Ala. 596, 51 Avt. Rep. 489. Where the owner of a horse at the time of shipment asks for tan for bedding, but is informed by the company's agent that it cannot be had, but directs him where he can j;et straw, the company is liable for injuries to the horse occurring by reason of the straw taking fire from sparks from its engine. Pmvell V. Pennsylvania R. Co., 32 Pa. St. 414.— Followed in Holsapple v. Rome, W. & O. R. Co., 3 Am. & Eng. R. Cas. 487, 86 N. Y. 275. 42. Refusal to relieve overheated hogs. — Where hogs while in a car become heated, necessitating the throwing of water upon them, a failure of the conductor to apply the water, after a notice of the neces- sity of doing so, where it is customary to furnish water, and the necessary conveni- ences for applying it were provided, consti- tutes gross negligence, rendering the com- pany liable for any hogs that may die or be injured. Illinois C. R. Co. v. Adams, 42 ///. 474.— Followed in Toledo, W. & W. R. Co. v. Thompson, 71 111. 434; Toledo, W. & W. R. Co. v. Hamilton, 76 111. 393. 43. Befiisal to side-track or lay oft" car.*— Where cattle and hogs shipped together in the same car are found to be suffering, it is no excuse for a refusal on the part of a conductor to layoff the car, so that they can be unloaded, because the com- pany's stock-pens at the station were unsafe for hogs, where there is nothing to show that the company was relieved from the duty of making its pens secure, and nothing to show that the cattle could not have been separately unloaded. Johnson v. Alabama &• V. R. Co., 69 Miss. 191, II So. Rep. 104. The plaintiff claimed that his agent on the way informed the defendant's agents in charge of the train that a mare of plaintiff's was becoming frightened and acting badly, and was in danger of being killed by further transportation, and requested them to set the car on a side-track at a place where they were next to stop. The court charged the jury that if they found the request to have been made, it was the duty of the de- fendant's agents to have complied with it if it could reasonably have been done. Held to be correct. Coupiand v. Housatonic R. Co., 55 Am. &* Eng. R. Cas. 380, 61 Conn. Si\,2zAtl.Rep.87o. 44. When question of negligence is for the Jury. — Live stock were shipped under a special contract requiring the owner to care for the same during transportation. In a suit for injuries there was evidence tending to show that the train did not stop long enough to allow the owner to properly care for them, and, upon inquiry by him whether the train would stop at a station • Src also ijfilr, 28. I If 756 CARRIAGE OF LIVE STOCK, 45, 46. i m m long enough to allow him to do so, he was told by the conductor to lie down, that the brakeman was looking after the cattle. Ne/d, that there was no error in submitting the question of the carrier's negligence to the jury. Dawson v. St, Lout's, K. C. &* N. R. Co., y6 Mo. 514. 5. Contributory Negligence of Owner. 45. In geueral— Burden of proof.* — Where the property which a railroad com- pany agreed to carry was live stock, and the owner undertook, by special contract entered into with the company, to go with the stock and care for it, he is bound to show that the injury or loss for which he is seeking to recover damages was not attrib- utable to the failure to perform or the negligent or improper performance of acts which he undertook to perform. He must show that the injury was caused by the car- rier's breach of duty. Terre Haute 6- L. R. Co. V. Sherwood, 55 Am. charged with loading the horses asVi n ,;;•- gently leaves the car-door open Iroiti v -M. the horse jumped. Hutchinson v. C/t. ,io, St. P., M. &* O. R. Co., 37 Minn. 524, 35 "V. IV. Rep. 433. Under a contract with a common carrier for the transportation of horses, they were placed in a car, and an employ^ of the company was directed to lock it, but was prevented from doing so by an agent of the owner of the horses, and while in passage some of them were lost by escaping through the door. Held, that the company was not liable for the loss. Lee v. Raleigh &* G. R. Co., 72 N. Car. 236. Where the shipper of live stock agrees to load them on the cars, and knows that a car-door is unsafe, and neglects to inform the station agent, who has no knowledge of the fact, he cannot recover for the cattle that escape through the door. Rttts v. f '' 3». ii CARRIAGK OF LIVli STOCK, 47-50. en in viola* ?v. Chicago tg. R. Cas. 97. IS provided )r the ship- hipper who :reof is not ce preclud- :s, althougii e that ihey naii, N. O. R. Cas. 547, >e liable for by the im- I ice of the ^nagement mployes of '■more &* 0. ING Hanni- bal]. (U. S.) ock door the owner lading, and je attached tile doors liable for h the open "P. R.Co., recover for iping from ;)ce . '• ■,!!; ill. ,; ,v ;> aHi fi ..•;;'- 'rum V. :!) V. CV/. ^./;, 524, 35 JV- ion carrier they were •y6 of the it, but was :ent of the n passage ig through y was not i Sr' G. R. agrees to ws that a to inform wlcdge of the cattle fit//S V. Farmers' L. S" T. Co., 21 PVis. 80.— Foi,- LOWED IN Miltlmore v. Chicago & N. W. R. Co., 37 Wis. 190; Jenkins v. Chicago, M. &St. P. R.Co., 41 Wis. 112. 47. Placing^ combustible matter ill car. — When sued for an injury to live stock the carrier set up the defense that the injury occurred by reason of plaintiff violating a rule of the company by putting straw and other combustible matter in the cars, which took fire. Ne/d, that the com- pany was not liable, independent of any such rule, if the injury complained of was occa- sioned by the neglect or wrongful act of the plaintiff in putting such material in the car without the knowledge or consent of the company. Prat/ v. Ogdensburg &* L. C. R. Co., 102 Mass. 557. 48. Overcrowding of hogs, causing suffocation. — A railroad may let its cars to a shipper for the purpose of transporting hogs therein, and in such case the shipper may control the loading of his freight upon the cars, subject to certain implied restric- tions as to weight, injury to the cars, etc. ; and the carrier will n()t be liable for injuries caused to animals by being overcrowded by the owner, who has chartered the cars. East Tenn. 6- G. R. Co. v. Whittle, 27 Ga. 535. Where the shipper of hogs contracts to have them carried at a reduced rate, in con- sideration that the company be exempted from certain risks, including a loss by suffo- cation, the company cannot be held liable for injuries arising from overcrowding and suffocation, to which the negligence of the person sent by the owner to attend the transportation contributed. Squire v. New York C. R. Co., 98 Mass. 239. 49. Neglect to feed and water.— The shipper of live stock by railway, under a special contract in which he agrees that, " in case of accidents to or delays of time from any cause whatever," he " is to feed, water, and take proper care of the stock at his own expense." cannot recover damages resulting from his own failure to perform his part of the contract, although the com- pany may have consumed more time than necessary in effecting the transportation. Boaz v. Central R. Co., 87 Ga. 463, 13 5. £". Rep. 7\i. Where live hogs are shipped in cars and are doing well, and are not suffering for water at a given station, it is not negligence on the part of the shippers attending them not to water them at that point, in the absence of information that water cannot be had at the next station ; and if it is a fact that water is scarce at the next station, it is the duty of the company to inform the shippers of the fact. Toledo, IV. A- W. R. Co. v. Thompson, 71 ///. 434. When sued for injuries to horses the car- rier set up contributory negligence of the owner in failing to properly feed and water them, as he was required to do under the contract of shipment. There was evi- dence tending 10 show that when the defendant company received the horses from a preceding carrier they were in ap- parently good condition, and that they were not transferred and started on defendant's road for several hours after their arrival on the other road, and that the owner was pre- vented from feeding and watering them by being informed by the train-dispatcher that they would be forwarded promptly; but such evidence was contradicted by the company. Held,\.\i&\. the question of contributory neg- ligence was for the jury, and that it was error to charge, as a matter of law, that there was no contributory negligence, if the owner was informed that the horses would be for- warded promptly. Mobile &* O. R. Co. v. Mullins, 70 Miss. 730, 1 2 So. Rep. 826. IV. DELIYEBT BT THE GABBIEB. I. In General. 50. Obligation to deliver. — The common-law liability of a carrier for de- livery of live animals is the same as that for thedeliveiyof inanimate things, with this ex- ception to the rule, as generally stated, that he is not liable for injuries caused by the peculiar character and propensities of the animals. Bamberg v. South Carolina R. Co., 9 So. Car. 61.— Approving Kansas Pac. R. Co. V. Reynolds, 8 Kan. 623 ; Kansas Pac. R. Co. V. Nichols, 9 Kan. 235, 12 Am. Rep. 494 ; Clark v. Rochester & S. R. Co., 14 N. Y. 570; Great Western R. Co. v. Blower, 2 Moak 700. Disapproving Michigan S. & N. I. R. Co. 7A McDonough, 21 Mich. Rep. 165, 4 Am. Rep. 466 ; Lake Shore & M. S. R. Co. V. Perkins, 25 Mich. 329, 12 Am. Rep. 275. Quoting Smith v. New Haven & N. R. Co., 12 Allen (Mass.) $3^— North Pa. R. Co. V. Commercial Bank, 35 Am. &* Eng, R. Cas. 556, 123 U. S. 727, 8 Sup. Ct. Rep. 266. In undertaking the carriage of live stock, the carrier assumes the obligation to deliver 758 CARRIAGE OF LIVE STOCK, 51,52. m % safely and within a reasonable time, having due respect to the circumstances of the case. Philadelphia, W. &' B. R. Co. v. Lehman, 6 Am. &» Etig. R. Cas. 194, 56 Md. 209, 40 Am. Rep.^iy A promise " to deliver" in a bill of lading for the carriage of live stock implies un- loading them ; so also does a provision to the effect that the carrier would store them un- less called for. Thisbeingso, a usageof the company's agent at the place of destination requiring the owner or consignee to unload is of no consequence. The usage cannot override the contract. Benson v. Gray, 1 54 Mass. 391, 28 N. E. Rep. 275. The duty of the carrier of live stock is to deliver the animals alive; and where, dur- ing transportation, they are killed by an acci- dent for which the carrier is not responsible, he is not required to deliver their dead bodies, though they may have a market value. Lee v. Marsh, 28 How. Pr. (N. V.) 275, 43 Bard. 102. 51. Place and manner of delivery. — Where the carrier and shipper ol live stock enter into a written contract regulating the terms upon which the stock shall be carried and delivered, a mere usa^e concerning the manner of delivery cannot atTect the rights of the parties when it is in conflict with, the written contract, especially when such usage is not known to the shipper. Myrick v. Michigan C. R. Co., 9 Biss. (U. S.) 44. Although the contract required the appel- lants to unload the stock, it was the duty of the company to provide a safe mode of de- livery by having a platform suitable for the purpose of unloading stock ; and if the agents of the company required appellant's agent to remove a horse from the car onto a platform not ordinarily safe for the de- livery of stock, and the horse was injured thereby, the company is responsible, al- though the agent of the owners may have been apprised of the danger. Owen v. Louisville &* N. R. Co., 35 Am. &» Eng. R. Cas. 687, 87 Ky. 626, 9 i". W. Rep. 698. If the servants of a railway company in unloading horses from a car leave a space between the flap and the body of the car, into which a horse steps and is injured, the company is liable. Combe v. London &* S, W. R. Co., 31 L. T. 613. Where a cow is killed owing to the porter letting her out of the car without waiting a reasonable time, the railway company is liable to the owner for its value. Gill v. Manchester, S. &' L. R. Co., 42 L.J. Q. B. 89, /.. R. 8 Q. B. 186, 21 W. R. 525, 28 L. T. 537. A railway company is not bound to pro- vide fences at a station where live stock may be landed, so as to prevent the animals straying onto the track. Roberts v. Great Western R. Co., ^/ur. N. S. 1240, 4 C. B. A'. S. 506,27 L.J. C. P. 266. A calf died from overexertion soon after delivery to the consignee. The negligence charged against tlie carrier was in unload- ing at the station instead of at cattle-pens, and that the number of persons assisting were too great and frightened it. Held, that unloading at the station would not render the company liable, where it was the custom to unload single animals there ; neither would the large numberof persons employed, when they seemed necessary, owing to the animal's very vicious disposition and actions. Chicago, B. &* Q. R. Co. v. Owen, 21 ///. App. 339- 62. Sufllciency of delivery.— A com- mon carrier of live stock is required neither to deliver the stock to the consignees, nor to give them notice of its arrival. Its obliga- tion as a common carrier ceases when it has delivered the stock at their place of destina- tion, and unloaded them from its cars; after which its only duty is to store them in a proper place, to see that they are properly cared for, and to deliver them on demand to the shipper or his consignees. Chicago &» E. I. R. Co. V. Pratt, 13 ///. App. 477- Plaintiff shipped horses by rail consigned to a third party, proceeded himself to the place of destination, and went with the consignee to the company's office, but could not find the animals. After some delay they were found in a city across a river from the place of destination, in stables, where they had been put by the employes of the carrier, but for what reason did not appear. Thereupon plaintiff, without any communi- cation with the company, directed the owner of the stables to keep the horses until he went home and returned, taking the con- signee with him, who was a man in his em- ploy. During his absence the horses were destroyed by an accidental fire in the stables. /feld, that there was a sufficient delivery to plaintiff to relieve the company from liabil- ity. Cleveland 6- P. R. Co. v. Sargent, 19 Ohio St. 438. Cattle arriving at a station were placed in pens by the servants of the company, as- CARRIAGE or LIVli STOCK, 53-56. 759 L.J.Q.Ji. !5. 28 L. r. ind to pro- stock may le animals is V. Great , 4 C. B. A'. soon after negligence n unload- attle-pens, s assisting Held, tiiat not render he custom neither employed, ing to the nd actions. '.ilil.App. . — A corn- ed neither ses, nor to ts obliga- hen it has [)f destina- cars ; after them in a e properly lemand to "hicago Eng. R. Cas. 55, 69 Iowa 665, 29 N. IV. y?^/. 772.— Distinguished in Illinois C. R. Co. V. Peterson, 68 Miss. 454. When an animal is delivered to the carrier in a sound, healthy condition, and when de- livered at the place of destination is found to be lame or diseased, if the carrier would excuse himself, the burden is upon him to prove that the injury to the animal was without his fault. Dow v. Portland Steam Packet Co., 84 Me. 490, 24 Atl. Rep. 945. 56. Wrongful refusal to deliver.'"' — The plaintiff delivered cattle, carriage pre- paid, to the defendant railway company for carriage on the terms of signed conditions whereby, in consideration of an alternative reduced rate, it was agreed that the com- pany was " not to be liable in respect of any loss or detention of or injury to the said animals, or any of them, in the receiving, forwarding, or delivery thereof, except upon proof that such loss, detention, or injury arose from the wilful misconduct of the company or its servants." The cattle were carried ; but, on application made for them by the plaintiff, the defendant, in conse- quence of their clerk having negligently omitted to enter the cattle on the consign- ment note as "carriage paid," refused to deliver them, and alleged that the carriage was not paid. The cattle were kept exposed to the weather until the next day, when, the mistake having then been ascertained, they were delivered. They were damaged by the exposure. In an action for damages by rea- son of wrongful detention and negligence — held, that the withholding of the cattle, un- * See also /w/, 81-84. I> J rco CARRIACil- or LIVli STOCK, r»7 OO. ''■V m. 'im m] ' & m H 1^ 1 der a groundless claim to retain them, at the end of the trans't 'vas not " detention " with- in the conditions, and that the company was therefore liable. Gordon v. Great Western R. Co., 3 Am. &* Eng. R. Cas. 619, L. R. 8 Q. £. D. 44. 2. Delivery to the Wrong Person, 67. Cairler, when liable.*— Plaintiff loaded his live stock into a car that was pointed out to him by the company's agent, but by a mistake of a clerk in the car-num- ber it was billed to another party, and the stock were delivered to him and lost to plaintiff. Held, that as plaintiff took the specific car designated by the company's agent, and the matter of car-numbers con- cerned the carrier alone, it was liable to plaintiff for the loss. Chicago 6- N. W. R. Co. V. Ames, 40 ///. 249.— DISTINGUISHED IN Indianapolis, B. & W. R. Co. v. Murray, 72 111. 128 ; Illinois C. R. Co. v. Cobb, 72 III. 148. A shipper of hogs was told to put them in a certain car, which he did, but by a mis- take in making out the shipping bills the number of another car containing inferior hogs was put on the margin of the contract, and the inferior hogs were delivered to plaintiff's consignee, his own hogs going to another person. Held, that a provision in the contract providing that a claim for loss or damage must be made within five days from the time the stock were removed from the cars did not apply ; neither could plain- tiff be affected by the mistake of the com- pany's employ^ in writing the wrong car- number on the contract. Wilson v. Wa- bash, St. L. &• P. R. Co., 23 Mo. App. 50. 68. When not liable.— A carrier who is sued for improperly surrendering the plain • tiff's cattle to a constable cannot be held liable where the writ is valid on its face. Mc A lister v. Chicago, R. I. &* P. R. Co., 7 Am. &* Eng, R. Cas. 373, 74 Mo. 351. Plaintiffs shipped certain hogs by de- dendant's road, prepaying charges; at tht. place of destination they were taken from the carrier by a stranger and a dray- man who was an employe of the consignees, and taken by them to consignees, the stranger representing that he had bought them of consignors, and exhibiting an ex- * Liabilities of carriers of live stock for mis- carriage and wrongful delivery, see note, 9 L. R. A. 451. pensc bill which he had obtained from the carrier, whereupon he was paid for them by the consignees. Held,ihatthe shipper could not recover from the carrier, and that his remedy was against the consignees. Ryder v. Burlington, C. R. &* N. R. Co., 51 Iowa 460, I N. W. Rep. 747. 60. Delivery without production of bill of lading. — Where a railroad com- pany receives for transportation cattle con- signed to the order of the shipper, with directions to notify a certain person at the place of destination, and delivers them to the party whom it is directed to notify, without the production of tiie bill of lading, it will be liable to a bank discounting con- signor's draft upon the person whom it was directed to notify for the value of the cattle so delivered ; and the fact that it has been customary for defendant to so deliver other shipments of cattle between the same par- ties is no defense, where it is not shown that such custom was brought to the knowl- edge of the consignor. North Pa. R, Co. v. Commercial Bank, 35 Am. Gf Eng. R. Cas, 556, 123 U. S. 727, 8 Sup. Ct. Rep. 266. V. 8HIFFIN0 CONTRACTS. I. Consideration and Construction, 60. Consideration. — A complaint against a railroad compatiy alleged a breach, by the defendant, of an agreement between the plaintiff and the defendant, whereby the latter agreed to ship certain live stock which the plaintiff agreed and attempted to de- li er to the defendant for shipment. Held, that the agreement was based upon a suffi- cient consideration. Pittsburgh, C. &* St. L. R. Co. V. HolloTvell, 65 Ind. 188. Plaintiff made a parol contract with de- fendant to furnish a special live-stock train to ship his cattle to the Chicago market within a certain time. The train was fur- nished and the cattle were loaded as agreed, and just as the train was about to move off defendant's agent presented him a contract, which defendant signed. Held, that the written contract was substituted for the original verbal one, and that the cancella- tion thereby of the old oral contract was a sufficient consideration for the substituted written one. Leonard v. Chicago &■» A. R, Co., 54 Mo. App. 293.* * Merger of oral and written contracts, see 55 Am. & Eng. R. Cas. 334, abstr. II T^ CAKklACJI- or LIVl' STOCK, move off contract, that the I for the cancella- ict was a ibstituted 6fA.R. racts, see />i»(/(i/r V. LaiUits/iire Sr' V. A'. Co., 7 Naihv. Cas. 824, i^ Jiir. 1 106, 12 /.. y. (2- ^'' 22. i'//(i«/ V. York &- A^. J/. A'. Co.. 6 AVj/'/w. Chj. 87, 13 Q. B. 347. \lj">- 385. \^L.J.Q.D.\%\. It is not the fluty of a carrier's agent, on giving a receipt for goods to be shipped, to call the shipper's attention to its language limiting the carrier's liability; it is the shipper's duty to read it. Snider v. Adams Exp. Co., 63 Mo. 376, 20 Am. Ay. Kep. 435. A railroad company's custom was to carry horses ai the owner's risk, and at re- duced rates for that reason, and the letters "O. R.," signifying "Owner's Risk," were upon the receipt given to plaintiff for his horses, and retained and put in evidence by him ; and he testified that " he did not see " those letters, but not that he did not under- stand their meaning. Held, that the re- stricted liability of the company clearly ap- peared from plaiiitiflf's evidence. Morrison V. Phillips Sr» C. Constr. Co., 44 Wis. 405, 19 Am. Ry. Rep. 312. 05. General rule denying right to limit liability for negligence.'*'— A common carrier may limit his common- law liability for live stock transported by him, but may not exempt himself from lia- bility for his own negligence. East Tenn., V. &* G, R. Co, V.Johnston, 22 Am. &^ Eng. R. Cas. 437, 75 Ala. 596, 51 Am. Rep. 489. Sprague v. Missouri Pac. R. Co., 23 Am. . Goodrich Transp. Co., 55 Wis. 319; Alabama G. S. R. Co. v. Little, 71 Ala. 611 ; Rosenfeld 7/. Peoria, D. & E. R. Co., 103 Ind. 121 ; Missouri Pac. R. Co. V. Pagan, 72 Tex. 127. Disapprov- ing Squires v. New York C. R. Co., 98 Mass. 239; South & N. Ala. R. Co. v. Henlein, * Limitation of liability for negligence, see 55 Ah. & Eng. R. CAS.353, abslr. 52 Ala. 606; Magnin v. Dinsmore, 56 N. Y, 168; St. Louis, \. M. & S. R, Co. v. Weakly, 50 Ark. 397. Distinguishing Hart v. Penn- sylvania R. Co., 112 U. S. 331; Harvey v. 'rcrre Haute & \. R. Co., 74 Mo. 539 ; Graves V. Lake Shore & M. S. R, Co., 137 Mass. 33 ; Brehme v. Uinsmore, 25 Md. 329; Louis- ville & N. R. Co. 7'. Sherrod, 84 Ala. 178 — DisTiNOUiSHKD IN Louisville & N. R. Co. V. Sowell, 90 Tenn. 17. A common carrier cannot lawfully stipu- late for exemption from responsibility for the negligence of himself or his servants, or the insufficiency of his cars for the trans- portation of the freight deposited in them. St. Louis, L M. &* S. R. Co. v. Lesser, 46 Ark, 236.— Quoting New York C. R. Co. v. Lockwood, 17 Wall. (U. S.) 357; Welsh v. Pittsburg, Ft. W. & C. R. Co.. 10 Ohio St. 65; Rhodes v. Louisville & N. R. Co., 9 Bush (Ky.) 688. 06. Contrary rule— Siicli limitation valid. — Common carriers cannot by con- tract stipulate for immunity against gross negligence, but may stipulate for a partial exemption from it> full liability. Chicago, R. I. &• P. R. Co. v. Harmon, 17 ///. App. 640. Where a railroad conipany contracts for exemption from liability from the negli- gence of its servants or from the insecurity of its cars, it will not be liable for an injury to stock carried in a grain car, unsafe for stock but suitable for grain, there being other and suitable cars provided by the company, which its servants neglected to use. Wilson v. Ne^v York C. 6- H. R. R. Co., 21 Am. &* Eng. R. Cas. 148, 97 A^. Y. 87 ; affirming 27 Hun 149.— Distinguish- ing Nicholas v. New York C. & H. R. R. Co., 89 N. Y. 370. 07. Limitation of liability for wH- ful acts. — A contract by a railway com- pany carrying cattle by sea, exempting it from liability for acts of wilful misconduct on the part of seamen and crew, is unreason- able. Ronan v. Midland R. Co., L. R. 14 Lr. 157. A contract for the shipment of cattle partly by rail and partly by sea, exempting the company, among other things, from liability for the fault, negligence, or mistake of seamen or crew of the vessel, does not in its terms exempt the company from liability for icis or wilful misconduct on the part of tfe seamen and crew. Ronan v. Midland A?. Co., L. R. 14 /r. 157. CARKlAdK OF lAVli STOCK, «H. «U. •;«3 ore. 56 N. Y, i. I/. Weakly, lartv. Penn- ; Harvey v. 539 ; Graves 37 ^'i•9s. 33; 329; Louis- [ Ala. 178.-- & N. R. Co. vfully stipii- nsibiiity for servants, or r the trans- cd in them. R. Co. V. '; Welsh v. 10 Oliio St. f. R. Co., 9 liiuitntlon lot by con- ^ainst gross or a partiii! y. Chicago, 17 III' A pp. on tracts for the negli- e insecurity it iin injury , unsafe for here being ded by the eglected to ' H. R. R. 8, 97 A'. Y. STINGUISH- k H. R. R. y for wH- ilway com- empting it nisconduct 3 unreason- , L, R. 14 ■ of cattle exempting ings, from or mistake Iocs not in m liability he part of . Midland 3. Special Contracts Limiting Liability. «8. l*ower to lliiiit linhillty by Hpecliil 4'oiitruct.'*'— Carriers of live stock may limit tlicir liability in respect thereto by special contract, iicorgia A'. Co. v. spears, 66 Ga. 485. Morrison v. PhiHips&^ C. Constr. Co., 44 Wis. 405. 19 ^lui. Ry. Rep. 312.— Foi.i.owiNd Bettsf. Farmers' L. & T. Co., 21 Wis. 80.— Rkvikwkd in Annas v. Milwaukee & N. R. Co.,27 Am. & Eng. R. Cas. 102, 67 Wis. 46, 57 Am. Rep. 388, note. — Central R. Co. v. Bryant, 73 Ga. 722. Great Western R. Co. v. McCarthy, 2g Am. Sr* Eng. R. Cas. 87, 1 2 App. Cas. 218; reversed in Ir. L. R. 18 Q. R.I). I.— AFPR()VlW(i Peek v. North Staffordshire R. Co., 10 H. L. Cas. 473 ; Manchester. S. & L. R. Co. v. Brown, 8 App. Cas. 703. Where a person ships cattle over a rail- way under a special contract of carriage, he cannot elect to charge the railroad company with the liabilities of a common carrier. Lake Shore &» M. S. R. Co. v. Bennett, 6 Am. &» Eng. R. Cas. 391, 89 Ind. 457. A railwiiy company is bound, as a common carrier, to receive and transport live animals, when offered for transporta- tion from one point to another in Texas, as other property, and is liable, after receiving them, as an insurer against loss from any cause, except the act of God or of the pub- lic enemy, the act of the owner of the stock, or the vicious propensities or inherent character of the animals. This liability a railroad company cannot limit by special contract, even in regard to matters concern- ing which it might legally contract at com- mon law. Gulf, C. 6- S. F. R. Co. v. Tra- wick, 30 Am. 6»» Eng. R. Cas. 49, 68 Tex. 314, 4 .S". IV. Rep. 567. Whenever railroad companies receive cattle or live stock to be transported over their road from one place to another, such companies assume all the responsibilities of a common carrier, except so far as such re- sponsibilities may be modified by a special contract ; and under the Tex. St. the modifi- cations which may be made by a special contract, and are to operate within the lim- its of the state, can only be such as will not diminish the common-law liability of a rail- road company as a common carrier. Mis- souri Pac. R. Co. v. Harris, I Tex. App. * Limitation of liability of carriers of live stock by contract, see note, 67 Am. Dec. 213. (C/'v. t'<»,v. I 730. I'i.vas &* /'. A'. Co, V, Uamm, 3 Ttx. App. (Civ. Cas.) 43 >. A reasonable condition contained in a contract for the carriage of live stock is valid as a liinitaiion of the currier's com- mon-law liability, where the contract is made in another state and the carriage is to be interstate, li such case the inhibition of the Texas statute iigainst common car- riers limiting their liability does not apply. International \ir* G. X. A". Co. v. li'att, 2 7>r. App. (Civ. Ciis.} 686. «!l. What liniititiioii,H urc valid and binding, gracrally. -In so fur as a contract for the carriage of live stock un- dertakes to relieve the company from lia- bility on account of any delay in tnins' tation, it is void ; and it is also void in so far as it requires the shipper to give notice of his claim before he unloads his stock. But it is valid in so fat as it provides that the owner shall go with the stock and shall take care of it, and prepare the car for the use of the stock, and shall see to the load- ing and unloading. Ormsby v. Union Pac. R. Co., 2 McCrary (I/. S.) 48, 4 Eed. Rep. 706. —Quoting Michigan C. R. Co. v. Mineral Springs Mfg. Co.. 16 Wall. (U. S.) 328. A special contract by which, in consider- ation of reduced rates and a free passage for himself, a shipper of live stock assumes (re- leasing the railroad company from) all injuries, loss, or damage the animals may sustain from injuries to themselves or to each other, or from heat, suffocation, over- loading, fright, viciousness, and from "any damages incidental to railroad transporta- tions which shall not have been caused by the fraud or gross negligence of said rail- road," is reasonable and valid, except in the attempt to limit the liability of the railroad to gross negligence. Central R. B. Co. v. Smitha, 85 Ala. 47, 4 So. Rep. 708. Under provisions in a contract for the transportation of live stock releasing the company from liability for delays at termi- nal points, and for delays at points where the stock were to be delivered to connect- ing lines, the shipper agreeing to assume the risk of transportation, a carrier is not liable for the injury that results to the stock by reason of a delay caused by a strike on its road, which it could not control. Bart- lett V. Pittsburgh, C. Of St. L. R. Co., 18 Am. &* Eng. R. Cas. 549, 94 fnd. 281. Where live stock are shipped under a con- tract that the shipper assumes all risk of delay caused by a *' strike " or threatened violence to personal property, there can be no recovery against the company for a delay caused by a " strike " of such magni- tude as to require the military force of the state to suppress it. Gulf, C. P. R. Co., 27 Am. &* Eng. R. Cas. 53. 90 Mo. 98, 2 S. W. Rep. 263. A provision in a bill of lading of live stock providing that the owner should ac- company them and. take care of them, and should assume the risk of injury that they gents, and, in "n any cHuse ke care of the ng furnished the railroad, mself accom- and perform fact that, at e, on presen- he agent in licli enabled train, though le train with iver of these the perforin- Central R. 7, 4 So. Hefi. tract for the ■eleasing the lys at termi- joints where to connect- er to assume arrier is not 1 to the stock ' a strike on itrol. Bart- \.Co., i8Am. I. underacon- is all risk of r threatened here can be npany for a such magni- force of the in consid- ire for thti.j oading and risks inci- s from any ' upon the after being Ithough its Id them all. Ji. Co., 27 ?8. 2 S. IV. ng of live should ac- them, and f that thejr CARRIAGE OF LIVE STOCK, 71. 765 night do to themselves or to each other, will not be treated as waived upon proof that the company had been in the habit of conveying cattle for the same party without his presence on the train. Chicago S. F. R. Co. v. Wilhelm, 3 Tex. App. {Civ. Cas.) 558. ■ tiyv"-". 1^1" w'f»i** CARRIAGE OF LIVE STOCK, 73-75. 767 do so effec- cial contract with certain ; the carrier :o the main- based on his eof by negli- , y. 6m G. Rep. 309.— 1 R. Co., 87 a shipper of arrier, limit- le, is not en- through the s employes. St. L. K. Co., lilroad com- tract that it eglect or the of its cattle- W. &^ C. A\ NG Sager v. Co., 31 Me. idale V. Lan- & Eq. 395. N. R. Co. V. )TED IN St. ,46 Ark. 236. IS a common special con- esponsibility 1 neglect of ;mployment. ig from de- les, notwith- to the con- «'. App. (Civ. A contract exonerating the company from all claims which may arise for injury to stock whilst in the cars of the com- pany does not exonerate them from the consequences of negligence in the perform- ance of their duty as common carriers. Pffwell V. Pennsylvania R. Co., 32 Pa. St. 414. — Following Goldey v. Pennsylvania R. Co., 30 Pa. St. 242. A cattle dealer delivered to the Va. & T. R. Co. a lot of fat cattle for transportation. The cattle were received by an agent of the company, and a paper, signed by the agent, was delivered to and accepted by the owner, which provided that, in consideration of the reduced charge for freight by the company, the company was released from all injury, loss, and damage or depreciation which the animals, or any of them, might suffer in consequence, etc. (specifying several modes of injury), and from all other damage inci- dental to railroad transportation, wnich shall not be established to have been caused by the gross negligence or delinquency of any of the officers or agents of the said rail- roaa company. The cattle were all de- stroyed in consequence of the car in which they were carried being precipated over a bridge on said railroad. Held that, not- withstanding the contract, the company was responsible if the damage was caused by any negligence of the company or its agents. Virginia &* T. R. Co. v. Sayers, 26 Gratt. (Va.) 328.— Approving New York C. R. Co. V. Lockwood, 17 Wall. (U. S.) 357. Disapproving Wells v. New York C. R. Co., 26 Barb. (N. Y.) 641. Quoting Wyld V. Pickford, 8 M. & W. 442 ; Philadelphia & R. R. Co. V. Derby, 14 How. (U. S.) 486 ; Farnham v. Camden & A. R. Co.. 55 Pa. St. 53. Reviewing New Jersey S. N. Co. v. Merchants' Bank, 6 How. (U. S. 344; United States Exp. Co. v. Kountze, 8 Wall. (U. S.) 342. A common carrier cannot, by special con- tract with a shipper of live stock, shield himself from the consequences of his own negligence ; and where certain causes of injury are excepted in a special contract, which limits the liability for injuries from such causes, and the testimony in an action is not sufficient to show from what cause the death of animals ensued, the burden is upon the carrier to show that death resulted from the excepted causes, and that it was not guilty of negligence as a common car- rier. Johnstone s. Richmond &* D. R. Co., 55 Am. &- Eng. R. Cas. 346, 39 So. Car. 55, 17 S. E. Rep. 512. 73. or bill of lading.— A com- mon carrier of live stock cannot contract in the bill of lading against damages which result from the carrier's own negligence. Louisville &* N. R. Co. v. Owens, {Ky.) 19 S. W. Rep. 590.— Following Louisville, C. & L. R. Co. V. Hedger, 9 Bush (Ky.) 645; Rhodes z/. Louisville & N. R. Co., 9 Bush (Ky.) 688. Where a railroad receiving mules for shipment placed them in a car, bedded with straw, next to the engine, which the uncon- troverted evidence showed was negligent and dangerous conduct on its part, and the car was ignited by sparks from the engine and the mules were burned, the provision in the bill of lading whereby the shipper assumed the risk of loss or injury to the mules by fire, or on any account whatever, is no protection to the carrier. McFadden V. Missouri Pac. R. Co., 30 Am. &* Eng. R. Cas. 17, 92 Mo. 343, 10 West. Rep. 372, 4 S. IV. Rep. 689. — Explained in Doan v. St. Louis. K. & N. W. R. Co., 38 Mo. App. 408. Reviewed IN Conoverz/. Pacific Exp. Co., 40 Mo. App. 31. In a provision in a bill of ladii.g for the carriage of live stock, providing that when the company furnishes the shipper with laborers to assist in loading or unloading they shall be deemed the servants of the shipper, and that the company shall not be liable for their negligence, is void. Missouri Pac.R. Co. V. Smith, (Tex.) 16 S. W. Rep. 803. 74. Limits and exceptions to the rule. — A common carrier's liability does not attach to a railway company contracting to move a menagerie in the latter's own cars controlled by its own agents, and, though operated by railway smploy6s, run upon a time-schedule to suit the menagerie. And a stipulation that the company shall not be liable for injuries to the menagerie caused by want of care may be upheld. Coup v. IVabask, St. L. » P. R. Co., 18 Am. &^ Eng. R. Cas. 542, 56 Mic/t. iii, 22 A^. IV. Rep. 215, 56 Am. Rep. 374. 75. New York rule allowing lia- bility for negligence to be limited.— The common-law liability of common car- riers of merchandise, making them msurers against loss or injury, except it be by the act of God or tne public enemy, does not apply in its full extent to the carriage ol 768 CARRIAGE OF LIVE STOCK, 76, 77. i^K. n ft*! m- ' !-* nil live stock ; and in New York it is well set- tled that a common carrier may by express contract exempt itself from damages result- ing from any degree of negligence on the part of its servants, agents, or employes. Therefore, where hogs are shipped under an agreement entered into for reduced rates, whereby the owner assumes the risk of injuries to them in consequence of heat, the contract will exempt the carrier from loss by heat, due to its negligence in not watering and cooling the hogs, as otherwise the contract would be meaningless in not giving more than the law gives. Cragin V. New York C. R. Co., Si N. K 6i, 4 A»t. Ry. Rep. 418.— Distinguished in Magnin V. Dinsmore, 56 N. Y. 168 ; Holsapple v. Rome, W. & O. R. Co., 3 Am. & Eng. R. Gas. 487, 86 N. Y. 275. The shipment of horses under a special contract by which the owner assumes " all risk of loss, injury, damage, and other con- tingencies in loading, unloading, convey- ance, and otherwise," relieves the company from liability, and a nonsuit is properly al- lowed, even though the horses are wilfully and negligently run on a side-track and there left locked up for four days without food, it being impossible to feed them in the car, and the agent of the company refuses to permit them to be unloaded. Heineman v. Grand Trunk R. Co., 31 How. Pr. (N. V.) 430, I SAe/d. 95. — Commented on in Keeney v. Grand Trunk R. Co., 59 Barb. (N. Y.) 142. 76. Cases not witbln the New York rule. — A provision in a contract for the shipment of live stock which attempts to relieve the company from liability result- ing from negligence in the loading, unload- ing, or conveyance, or in failing to trans- port them promptly, does not apply to a case where the cars are wilfully detached and placed on a side-track to allow other freight to pass, and are kept there for several days locked up where it is impossible to feed or water the stock, as such conduct is not negligence, but a wilful breach of con- tract. Keeney v. Grand Trunk R. Co., 47 A'; y. 525, I Am. Ry. Rep. 466 ; affirming 59 Barb. 104. A contract with two railroad companies for the transportation of certain sheep, by its terms, in consideration of a reduction of the charges for freight, released them from liability for injuries to the sheep "caused by burning of hay, straw, or other material used for feeding said animals, or otherwise." The contract contained no words expressly exempting the carriers from liability for their own negligence. A fire occurred in the cars which destroyed a number of the sheep, the loss resulting, as found by the jury in an action brought to recover dam- ages, from the negligence of the defendant, one of said companies, in omitting to sup- ply the train with such appliances as would have enabled those in charge to have stopped it and extinguished the fire before serious damage had resulted. Held, that the exemption did not include negligence, and that defendant was liable. Holsapple v. Rome, W. • Eng, R. NGUISHING I N. Y. 6i. B. & N. Y. )gdensburg \T, Powell a. St. 414. York C. & \n rule.— , as well as X, that de- le for any uct, gross, )art of de- any other I the death, il shipped, e it sufli- must have bed within Vestern R, G Shaw V. 7 ; Wise v. f. 63; Par- I H. & N. chaster, 3. t 1868, 31 nended by jy Consol. § 25, sub- companies St liability 3n, or dec- he Grand company lation, in a stock, that r the neg- servants. 7 Am. &• Eng. R. Cas. 18, 1 1 Can. Sup. Ct. 612; affirm- ing 10 Ont. App. 162, which affirms 2 Ont. UJ7. 78. Liiniitatiou of liability to cases iiivolviug " t^ross or wilful " iiegli- {{Ciice. — A railroad company receiving cattle for transportation as a common car- rier cannot by special stipulations limit its liability to injuries caused by " gross or wan- ton negligence," or to that of a mere agent of the consignor, in the matter of delivering the cattle to tiie next connecting road, such stipulations being contrary to public policy. Alabama G. S. R. Co. v. Thomas, 32 Am. &■* Eng. R. Cas. 464, 83 Ala. 343, 3 So. Rep. 802. Though under the contract of shipment a railroad may have been liable only for dam- ages arising from gross negligence in not attending to live stock, yet where it carried the stock beyond the agreed destination, and there kept them for a time, its liability as to such time was not limited to the re- sults of gross negligence. Bryant v. South- western R. Co., 6 Am. &• Eng. R. Cas. 388, 68 Ga. 805. By the contract releasing the company from all claims for damage to stock while in the cars of the company, or for delay in their carriage, or for escape thereof from the cars, and generally from all claims relating thereto, except such as might arise from the gross negligence of the company, the burden is on the plaintiff of proving not merely that the live stock were i. jured and damaged by accident and delay occurring in their transportation, but also that these were caused by the gross negligence or default of the defendant's agents. Bankard v. Balti- more &» O. R. Co., 34 Md. 197. The fact that cattle were injured by ac- cidents while in the course of transporta- tion, that considerable delays occurred in their carriage, and that they were lessened in weight and value from these causes, does not raise the presumption of negligence against the company, within the meaning of a contract limiting the company's liability to cases of gross negligence only. Bankard v. Baltimore (S- O. R. Co., 34 Md. 197. Provisions in the contract for transporta- tion of horses, attempting to discharge the carrier from any liability for any cause, ex- cept wilful negligence of its agents, or pro- viding that the damage in no case should exceed $100 per head, are not valid, as being an attempt, in whole or in part, to exempt I D. R. D — 49 the carrier from liability for its own negli- gence. Moulton v St. Paul, M. &* M. R. Co., 12 Am. &* Eng. R. Cas. 13, 31 Minn. 85, 47 Am. Rep. 781, 16 N. W. Rep. 497.— Approved in Louisville & N. R. Co. v. Wynn, 45 Am. & Eng. R. Cas. 312, 88 Tenn. 320, 14 S. W. Rep. 311. Disapproved in Hart V. Pennsylvania R. Co., 112 U. S. 331. The doctrine once held that carriers of animals did not incur the responsibilities of common carriers, that they were private car- riers, and were subject only to such liabilities as the law imposed upon such bailees, or as the contract between the parties tixed, does not obtain in Texas. The carriers of such property are common carriers, subject to the same responsibilities imposed by law on car- riers of other property, except as these are modified by the inherent character of such property. It follows that a special contract which by Its terms purports to exempt a railway company from liability ior injury in the transportation of cattle, except such as might result from the wilful negligence of the company, cannot be enforced. Missouri Pac. R. Co. V. Harris, 28 Am. &* Eng. R. Cas. 107, 67 Tex. 166, 2 S. W. Rep. 574.— Followed in Missouri Pac. R. Co. v. Cornwall, 70 Tex. 611. Quoted in Good V. Galveston, H. & S. A. R. Co., 40 Am. & Eng. R. Cas. 98, 11 S. W. Rep. 854 —Mis- souri Pac. R. Co. v. Cornwall, 70 Tex. 611, 8 5. W. Rep. 312.— Following Missouri Pac. R. Co. V. Harris, 67 Tex. i66. Where a bridge was washed away and a shipment of stock delayed such a length of time that loss was occasioned by extra feed- ing, etc., and it appeared that had the rail- road company forwarded the stock promptly they would have been transferred to another road before the bridge went down, and the delay avoided— /4tf/d^, that the delay of the railroad company was such gross negligence as to Invalidate a release e.xecuted to them by the plaintiff exempting the company from all liability except that occasioned by their own gross negligence, and that a judg- ment far plaintiff should be affirmed. In- dianapolis l shipper gets reduced rates, to the efTect that he shall attend and care for the stock at bis own expense, is reasonable, and will relieve the carrier from liability for loss or injury if it is not the result of its want of diligence. SoutA &* N. Ala. R. Co. v. Henlein, 52 Ala. 606. A common carrier cannot limit his com- mon-law liability by a special contract in writing with the shipper, unless it is freely and fairly made ; and the carrier cannot ex- act as a condition precedent for carrying stock or goods that the shipper must sign a contract in writing, limiting or changing the common-law liability. If the carrier has two rates or charges for carrying stock or goods— one, if carried under the old common-law liability ; and the other, if carried under a special contract — the shipper must have real freedom of choice in making his selection. Atchison, T. &* S. F. R. Co. V. Dill, 55 Am. &» Eng. R. Cas. 375, 48 Kan. 210, 29 Pac. Rep. 148. Where a contract for the shipment of live stock recites that the company's liability is limited, as to certain specified matters, " in consideration of reduced rates," but the fact shows that no reduced rates were given, there is no consideration for such limitation, and the shipper is not bound thereby. Gulf, C. &• S. F. R. Co. v. McCarty, 82 Tex. 608, 18 S. W.Rep. 716.— Reviewed in Gulf, C. & S. F. R. Co. V. Wright, i Tex. Civ. A pp. 402. 80. Stipulation requiringr notice of claim before removal of stock.— (i) Validity of the stipulation. — A common carrier of live stock may limit its liability except as against negligence or misconduct, >nd may contract that no claim will be 'lowed for loss or injury unless it is pre- f, /"u in writing at or before the stock are .ii.OE'led; but it is competent for the carrier u ■ ■ ^^e such written notice. Rice v. Kan- ./'; . 'cc. R. Co., 63 Mo. 314, 20 Am. Ry. Rep. 424. — Following Southern Exp. Co. v. Caldwell, 21 Wall. (U. S.) 264. — Distin- guished IN Dunn V. Hannibal & St. J. R. Co. 68 Mo. 268. Followed in Dawson V. St. Louis, K. C. & N. R. Co., 76 Mo. 514 ; Carroll v. Missouri Pac. R. Co., 88 Mo. 239. Quoted in Wabash, St. L. & P. R. Co. v. Black, 1 1 111. App. 465. A provision in a contract for the ship- ment of horses, that in case of injury the shipper shall give notice of his claim to some officer of the company, or to its nearest station agent, before the horses are removed from the place of destination or mingled with other stock, is reasonable and binding, if fairly entered into. Sprague v. Missouri Pac. R. Co., 23 Am. &» Eng. R. Cas. 684, 34 Kan. 347, 8 Pac. Rep. 465.— Following Goggin V. Kansas Pac. R. Co., 12 Kan. 416. Distinguished in Atchison, T. & S. F. R. Co. V. Temple, 47 Kan. 7. — Owen v. Louis- ville &* N. R. Co., 35 Am. &* Eng. R. Cas. 687, 87 Ky. 626, 9 S. IV. Rep. 698. Selby v. Wilmington &* IV. R. Co., 11^ N. Car. 588, 18 S. E. Rep. 88.— Distinguishing Cape- hart V. Seaboard & R. R. Co., 81 N. Car. 438. Following Rice v. Kansas Pac. R. Co., 63 Mo. 314; Goggin v. Kansas Pac. R. Co., 12 Kan. ^16.— Texas C. R. Co. v. Morris, 16 Am. &* Eng. R. Cas. 259, i Tex. App. {Civ. Cas:) 158. Galveston. H. &• S. A. R. Co. V. Harman, 2 Tex. App, {Civ, Cas.) 128. Texas 6- P. R. Co. v. Scrivener, 2 Tex. App. {Civ. Cas.) 284. — FOLLOWING McMillan v. Michigan S. & N. 1. R. Co., 16 Mich. 112. Where live stock are shipped under a bill of lading containing a provision that the shipper, in case of loss or damage, will give notice in writing, verified by affidavit, of his claim to some general officer of the com- pany, or to its nearest station agent, the giving of such notice is a condition prece- dent to the shipper's right to recover, and it is necessary to both allege and prove that such provision was complied with. Texas &> P. R. Co. V. Hamm, 2 Tex. App. {Civ. Cas.) 436. In order that a carrier may take advantage of a stipulation requiring the shipper to give notice of his claim before removing the cat- tle from the place of delivery, he must prove that such a condition in the contract is rea- sonable, and must show by proper pleadings and evidence the existence of facts that call for an enforcement of the condition. Ft. Worth &» D. C. R. Co. v. Greathouse, 49 Am. 6- Eng. R. Cas. 157, 82 Tex. 104, 17 S. W. Rep. 834. A condition in a bill of lading for a through shipment of live stock, providing that the owner or consignee shall give writ- ten notice of any claim for damage to the company issuing the bill of lading, before the stock is removed from its place of des- tination, or mixed with other stock, is un- reasonable and cannot be enforced. Coles v. Louisville, E. &> St. L. R. Co., 41 ///. App. 607. Gulf, C &> S. F. R. Co. V. Vaughn. CARRIAGE OF LIVE STOCK, 80. ri are removed or mingled md binding, V. Missouri Cas. 684, 34 Following 2 Kan. 416. '. & S. F. R. >en V. Louis- r«^. R. Cas. 98, Seiby V. N. Car. 588, HI NO Cape- 81 N. Car. sas Pac. R. Cansas Pac. ^. R. Co. V. • 259. I Tex. on. H. &* S. App. (Civ. V. Scrivener, Following r. I. R. Co., under a bill 3n that the ge, will give pdavit, of his of the com- ™ agent, the lition prece- cover, and it 1 prove that 'ith. Texas . App. {Civ. e advantage pper to give ing the cat- : must prove tract is rea- :r pleadings cts that call dition. Ft. eathouse, 49 r. 104, 17 S. ding for a ;, providing I give writ- age to the ing, before ace of des- ock, is un- ced. Coles \\ III. App. '. Vaughn. 4 Tex. App. (Civ. Cas.) 269, \6 S. IV. Rep. 775- Such a contract is void for uncertainty as to the person to whom the notice should be given, and because it is an attempt to pro- tect the carrier from liability from losses caused by its own fault, by imposing an un- reasonable and difficult duty on the shipper as a condition precedent to his right to re- cover. Smitha v. Louisville &* N. A. Co., 86 Tenn. 198, 6 S. W. Rep. 209.— Followed IN Louisville & N. R. Co. v. Vvynn, 45 Am. & Eng. R. Cas. 312, 88 Tenn. 320, 14 S. W. Rep. 311. Where a railroad company sets up, in an action against it for failing to deliver cattle within a reasonable time, a special contract by which it was agreed that as a condition precedent to the plaintiff's right to recover damages for loss or injury the shipper should give notice in writing of his claim to the officers of the company or to iis nearest station agent before the cattle were removed from the place of destination or mingled with other stock, and it appears that the defendant's line of railway does not extend to the point of destination, and that both parties understood that the cattle were to pass to a connecting road, the provision is unreasonable and invalid, and will not be enforced. Missouri Pac. R. Co. v. Harris, 28 Am. &■* Eng. R. Cas. 107. 67 Tex. 166, 2 S. IV. Rep. 574.— Quoting Southern Exp. Co. V. Caperton, 44 Ala. 103. Reviewing Southern Exp. Co. v. Caldwell, 21 Wall. (U. S.) 264 ; United States Exp. Co. v. Harris, 51 Ind. 127; Westcottw. Fargo, 61 N. Y. 542; Adams Exp. Co. v. Reagan, 29 Ind. 21. Quoted in Missouri Pac. R. Co. v. Child- ers, I Tex. Civ. App. 302. (2) T/ie person to be notified. — Where a contract for shipment provides that notice shall be given to some officer of the com- pany, before the stock are removed, of any claim for damages, but the company lias no officer at. the place of destination, and not even in the state, the burden is upon it to show that such provision is reasonable. St. Louis, A. &* T. R. Co. v. Turner, i Tex. Civ. App. 625, 20 S. IV. Rep. 1008. Where a railroad company relies upon a noncompliance with such provision it must allege and prove that it had an officer or agent at or near the place at which the prop- erty was to be delivered, to whom the notice could be given, and in the absence of proof of such facts the provision as to notice will be deemed unreasonable and not binding. Galveston, H. &> S. A. R. Co. v. Soothe, 3 Tex. App. (Civ. Cas.) 433.— Quoting Mis- souri Pac. R. Co. V. Harris, 67 Tex. 166. — Good\. Galveston, H. iS"* S. A. R. Co., ( Tex.) 40 Am. &• Eng. R. Cas. 98, 1 1 S. W. Rep. 854.— Quoting Missouri Pac. R. Co. v. Harris, 67 Tex. 172. Where live stock, for injury to which dam- ^es are claimed from the railroad company which transported it, was shipped from a point at which the company had no agent, it is incompetent for defendant to show a custom among railroad companies to require the shipper of live stock to agree, as a condition precedent to his right of recovery for loss or damage to the stock during shipment or transportation, that he will immediately and before removal of the stock from the point of shipment, or from the possession of the company at its destination, as the case may be, give notice of his claim to an agent or officer of the road ; for it is not reasonable to require such a notice where the company has no agent at the point of shipment upon whom such a notice can be served. Mis- souri Pac. R. Co. v. Fagan, 35 Am. &* Eng. R. Cas. 666, 72 7V.V. 1 27, 9 5. W. Rep. 749. (3) Sufficiency of the notice, generally. — Where a railroad company contracts to carry stock beyond its own terminus, and there is a stipulation in the contract, which is a con- dition precedent to a right to recover for loss or injury, that the shipper must give written notice of his claim to an officer of the company, or to its nearest station agent, before the stock are removed from the place of destination or delivery, or is mingled with other stock, the officers and agents of the connecting company used and adopted by the contracting company should, for the purposes of the contract, be treated as the officers and agents of the' latter company; and notice given to the agent of the con- necting company at the place of destination will be sufficient. Wichita &* W. R. Co. v. Koch, 55 Am. &* Eng. R. Cas. 452, 47 Kan. 753, 28 Pac. Rep. 1 01 3. A contract between a railroad company and a shipper of stock stipulated that, as a condition precedent to his right to recover damages for any loss or injury to such stock, he should give notice in writing to some officer of the railroad company, or its near- est station agent, before the removal of such stock from the place of delivery. In an ac- tion to recover damages for injuries to such 772 CARRIAGE OF LIVE STOCK, 80. I m » stock while en route, where the condition of the stock was made known to the station agent of the railroad company at the place of destination, and such agent consented to the removal of the stock from the car, and had an opportunity to examine and inspect the animals after such removal and before they had mingled with other stock, or had been removed from the place of destination, and a written notice for damages was trans- mitted to the claim agent of the railroad company within four days after the removal of the stock from the car ; and, ten days thereafter, upon the death of one of the ani- mals, a subsequent notice for damages was given to the railroad company— ^fW, that there had been asubstantial compliance with the contract upon the part of the sliipper. Atchison, T. 6- S. F. Ji. Co. v. Temple, 47 Kan. 7, 27 Pac. Rep. 98.— Distinguishing Goggin V. Kansas Pac. R. Co., 12 Kan. 416; Sprague v. Missouri Pac. R. Co., 34 Kan. 352. A letter written by a shipper of cattle to the general freight agent of a railroad com- pany, complaining that his cattle had been delayed en route and that an agent had com- pelled him to pay $15, expetise of transporta- tion, in addition to the contract price per car, without making any mention of loss or in- jury to the cattle, or any claim for damages thereto, is not a compliance with a condition in the bill of lading requiring him to give notice in writing, of any claim for damages* to some general officer of the company or to the nearest station agent before removing the cattle, and will prevent any recovery for damage to the cattle. Texas &* P. R. Co. V. /ackson, 3 Tex. App. (Civ. Cas.) 65. (4) fVAen verbal notice is sufficient. — The object of such a provision in a contract for the shipment of cattle is to give the com- pany and plaintiff time to inspect the stock before they are mixed with others, or slaughtered, so as to ascertain their true con- dition ; and such a provision is substantially complied with where stock arrived at the place of destination in the nighttime, and the owner asserted a claim for damages to tiie company's yard-master, and notified him tiiat he would not receive the cattle unless under protest, and the yard-master assured the owner, without making any objection to the demand not being in writing, that it was not necessary to go to the company's office that night, and advised the owner, on ac- count of the rain and the condition of the stock-yards, to remove the cattle at once to his own place ; and so far as such contract was not complied with, it was waived, where the written notice was not given till after the stock were removed. Rice v. Kansas Pac. R. Co., 63 Mo. 314, 20 Am. Ry. Rep. 424.— Distinguishing Goggin v. Kansas Pac. R. Co., 12 Kan. 416.— Distinguished IN Oxley V. St. Louis, K. C. & N. R. Co., 65 Mo. 629. Mules were shipped under a special con- tract providing that the shipper should give notice in writing to the agent of the carrier of his claim for damages before the stock should be removed from the place of desti- nation, and before it was mingled with other siock. At the place of destination one mule was unloaded in the presence of the station agent, who saw that it was injured, and the owner refused to receive it, and it was al- lowed to run on the commons about the station. Held, in an action to recover for the injuries, that it was proper to refuse to instruct the jury that the plaintiff could nut recover because of his failing to give notice in writing of his claim for damages, as the mule had never been removed from its place of destination, nor mingled with other .stock, within the meaning of the provision in tlie contract. Chicago, St. L. &* N. O. R. Co. v. Abels, 21 Ant. &* Eug. R. Cas. 105, 60 Miss. 1017. Where cattle are shipped under such a contract, a verbal notice to the superintend- ent of a stock-yard and to the conductor of the train is not a sufficient compliance with the condition requiring notice. And being informed by these parties that a mem- ber of the company would come and settle with him did not amount to a waiver on the part of the company of such written notice. Missouri Pac. R. Co. v. Scott, 2 Tex. App. (Civ. C«J.) 279. Cattle shipped under such a contract reached the place of destination at night, when it was dark and raining, and they were put off without the company having pens to put them in. They scattered, and it was several days before they could be collected, and some of them never were recovered. Held, under the circumstances, that verbal notice on the night of the arrival and a written notice aa soon as the cattle were re- covered were a reasonable compliance Willi the provision of the contract. Houston &* T. C. R. Co. V. Hester, 2 Tex. Unrep. Cas. 396. at once to h contract ved, where till after f^ansas />. A\J). V. Kansas NGUISHED R. Co., N pecial con- hould give the carrier the stock e of desti- with other n one mule the station ;d, and the it was al- about the ecover for > refuse to '. could not jive notice ges, as the m its place ther stock, iion in tiie ?. R. Co. V. 5, 60 Miss. ler such a perintend- nductor of ompliance ice. And at a mem- and settle ver on the sn notice. Tex. App. contract at night, they were g pens to d it was ;ollected, ^covered. at verbal al and a were re- mce with 'iiston &* rep. Cas. 1 CAKRIAGE OF LI\ l- SIOCK, 81. 778 (5) Construction — Reasonable time to give notice, — A stipulation requiring notice of the injury before the removal of animals at the place of delivery is not to be strictly con- strued against the shipper, and the shipper has a reasonable time after tiie removal, in case the injury is not then discovered, in which to give the notice, and what is a rea- sonable time is a question for the jury. Western R. Co. v. Harwell, 97 Ala. 341, 11 So. Rep. 781. Western R. Co. v. Harwell, 45 Am. &* Eng. R. Cas. 358, 91 Ala. 340, 8 So. Rep. 649. Where a railway company, being a com- mon carrier of live stock, transports a car- load of cattle for the plaintiff at special rates, under a special contract signed by both parties, by the terms of which tiie plaintiff is to accompany the stock and su- perintend it on the way; and where, by an- other clause in the contract it is stipulated that damages to such stock in transit shall not be allowed unless notice in writing of a claim therefor be given to the company at or before the time of unloading the cattle; and it appears that plaintiff did accompany the stock and knew at the time that they had been injured, but did not give notice of such injury for more than a year, he cannot re- cover. Goggin v. Kansas Pac. R. Co., 12 Kan. 416.— Reconciling Adams Exp. Co. V. Reagan, 29 Ind. 21 ; Southern Exp. Co. z'. Carperton, 44 Ala. loi. — Distinguished in Atchison, T. & S. F. R. Co. v. Temple, 47 Kan. 7 ; Rice v. Kansas Pac. R. Co., 63 Mo. 314. Followed in Sprague v. Missouri Pac. R. Co., 23 Am. & Eng. R. Cas. 684, 34 Kan. 347. Where notice was not given to the carrier until twelve days after the delivery and re- moval of the stock, such notice was not given as the contract required, or within a reasonable time. Wichita ereof in waived is made under a djust it. fo. App. •n car. ict, vol- ed into rtation, rate no shipper shall be allowed or paid by the carrier, or sued for in any court, unless a claim for such loss or damage shall be made in writ- ing, verified by the affidavit of the shipper or his agent, and delivered to the general freight agent of the carrier, at his office, within five days from the time such stock are removed from the cars, will be binding upon the shipper, and is not void as being con- trary to any law or to public policy. Black V. Wabash, St. L. 6r* P. R. Co., 25 Am. d- A/^f. R. Cas. 388, HI ///. 351.— Reviewed IN Coles 7/. Louisville, E. & St. L. R. Co., 41 III. App. 607. — Dawson v. St. Lout's, K. C, &* N. R. Co., 76 Mo. 514.— Following Rice V. Kansas Pac. R. Co., 63 Mo. 314. — Fol- lowed IN Brown v. Wabash, St. L. & P. R. Co.. 18 Mo. App. ybZ.—McBeath\. Wabash, St. L. &* P. R. Co., 20 Mo. App. 445. The five days within which notice is to be given only begin to run from the time the stock were removed from the car. Wil- son V. Wabash, St. L. iting their liability for injuries to or loss or destruction of live stock to the sum of |ioo is against the policy of the law and will not be enforced, as it niiglu enable the carrier to contract against iis own negli- gence or that of its servatits. Chicago, R. I, &* P. R. Co. V. Harmon, 12 ///. App. 54. A regulation of a railway company to the effect that no animal possessing a special value, such as blooded stock, shall be re- ceived for shipment until a contract is signed by the owner releasing the company from liability for injury to such stock above the value of ordinary stock, is void under Iowa Code, § 1308, providing that "no con- tract, receipt, rule, or regulation shall ex- empt any corporation engaged in transport- ing persons or property by railway from the liability of a common carrier, or carrier of passengers, which would exist had no contract, receipt, rule, or regulation been made or entered into." McCune v. Burling' ton, C. R. &- N. R. Co., 52 Iowa 600, 3 N. IV. Rep. 61$. Where tlie owner of a horse sent it in care of a boy to be shipped, and the agent had knowledge of the fact that it was a race- horse and very valuable, and, without any inquiries as to its actual value, and against the protest of the boy, arh'trarily inserted a provision in the bill of lading limiting the company's liability to $100, the owner will not be bound thereby, and may recover full damages. Kansas City, St. J. &• C. B. R. Co. V. Sitnpson, 16 /////. <&«• Eng. R. Cas. 1 58, 2 Pac. Rep. 82 1 , 30 A'rtw. 645, 46 Am. Rep. 104.— DiSAPPKOVKD in Hart v. Pennsyl- vania R. Co., 112 U. S. 331. Distinguished in Pacific Exp. Co. v. Foley. 46 Kan. 457. 88. Such limitation inoperative where neg^ligence in the cause of loss. — A provision in a bill of lading fixing the carrier's liability at $100 for an animal worth $800 is not the measure of the carrier's lia- bility in case of loss through its negligence, where there was no agreed valuation adopted as a basis forfreightcharges. Louisville dr^N. R. Co. V. IVynn, 45 Am. &* Eng. R. Cas. 312, 88 Tenn. 320, 14 S. W. Rep. 311.— Disap- proved IN Pacific Exp, Co. v. Foley, 46 Kan. 457. The company gave the owner's agent a receipt for a number of horses, stating that CAURr.\(ii': OK i.ivi-: stock, m»,oo. r77 N(; Iiiteriiu- Iwell, 3 Tex. iipuiiics litn- to or loss or ilic sum of lie law and t enable the own negli- liicago. A'. /, ///• 54. pany to the IK a special ihall be rc- contract is ic company lock above void under It "no con- n shall ex- 1 transport- ilway from r, (jr carrier ist had no lation been V. Burling, a 6oo, 3 N. sent it in i tlie agent was a race- lithout any and against S inserted a imiting the owner will recover full <3^ C. B. ng. R. Cas. [6 Am. Rep. . Pennsyl- INGUISHED Can. 457. ►perative *e of loss. fixing the imal worth irrier's lia- legligence, 3n adopted svilleSr'N. if. Cas. 312, r.— DlSAP- Foley, 46 's agent a ating that ill consiiieration of special latcs the lialiility assumed could not exceed $100 per heail, unless by special agreement noted thereon. Till.: (i.iuse was held void as against gross negligence, but would have been valid as respects damages resulting from any cas- ualty against which the carrier might limit his liability if knowingly assented to by the shipper. Chicago 6^ N. W. R. Co. v. Chap- man, 42 ^lin. Sr* Kitg. A'. Cas. 392, 133 ///. 96, 24 A'. E. Rep. 417 ; ajfirming 30 ///. A pp. 504. 8ft. liimitatioii to chhIi value at place of Nliipincnt.— A provision in a contract for the shipment of live stock en- tered into in consideration of the shipper getting reduced rates, limiting the carrier's liability in case of injury or loss to the value of the animals at the place of shipment, and in no case exceeding $5° per head for ordi- nary beef cattle, is valid, and will be held as the measure of the carrier's liability. South &* N. Ala. R. Co. V. Henlein, 52 Ala. 606.— Approved in Hart z'. Pennsylvania R.Co., 112 U. S. 331. Followed in Louisville & N. R. Co. V. Oden, 80 Ala. i^.— South &* A^. Ala. R. Co. V. Henlein, 56 Ala. 368, 19 Am. Ry. Rep. 200.— Following South & N. Ala. R. Co. V. Henlein, 52 Ala. 606. — Missouri Pac. R. Co. v. Ryan, 2 Tex. App. (Civ. Cas.) 378. Independent of any right of a "ommon carrier of live stock to stipulate against negligence, a contract between the shipper and carrier, to the effect that the value of the animals at the place of shipment shall constitute the measure of damages in case of loss, is neither unreasonable nor against public policy. Chicago, R. I. 6- P. R. Co. V. Harmon, 17 ///. App. 640. A carrier has no right to require, as a condition precedent to receiving live stock for transportation, an agreement by the shipper that, in case of total loss of the live stock, the measure of damages shall not ex- ceed its cash value at the place of shipment. Missouri Pac. R. Co. v. Fagan, 35 Am. &• Eng. R. Cas. 666, 72 Tex. 127, 9 S. IV. Rep. 749- Where cat'le are shipped by rail and in- juries and damages result from a violation of the contract of shipment, growing out of the negligence of the carrier, the carrier cannot restrict and limit its liability to less than the true value of the property, and a stipulation that in case of loss or partial loss the shipper's damages shall be limited to the valui' o( the cattle at the place of ship- ment cannot alltti the shipper's right to recover the value of the cattle at the place of their destination. Ft. Worth &* I). C. R. Co, V. Grtathouse, 49 //;;/. ir* Eng. R, Cas. 157, 82 Tex. 104, 17 S. If. Hep. 834.— yuoTi'.D IN Missouri I'ac. R, Co. v. Chil- ders, I Tex. Civ, Api». 302. A common carrier of live stock cannot limit its liability in the bill of lading by a provision that in case of loss the damage shall not exceed the value of the stock at the place of shipment, regardless of its value at the place of destination. Taylor, B. &• H, R, Co. v. Montgomery, 4 Tex. App. {Civ. Cas.) \o\, 16 .S", \V. Rep. 178.— Approving Southern Pac. R. Co, v. Maddox, 75 Tex. 300, 12 S. VV, Kep. 815. 00. Liiiiitutioii to value agreed upon at time of sliipnieiit.*— Where a shipper of stock by s|)ecial contract agrees upon a value to be placed upon such stock in case of loss, and in consideration thereof obtains a reduced rate of transportation, he is bound by such stipulation, and is estopped from showing that the real value of the stock was greater than tliat specified in the contract ; and he will not be relieved froiii the terms of the agreement merely because he signed the contract hurriedly and with- out reading it. Johnstone v. Richmond &» D. R. Co., 55 Am. 6- Eng. R. Cas. 346, 39 So. Car. 55, 17 S. E. Rep. 512. M'Cance v. Lon- don 6- A'. W. R. Co., 3 iV. r V. North- R. Cas.in, 1072.— Re- Lockwood, [>f amount al delivered fe is injured ervants, and made, the ited to the \ proviso of Traffic Act, was made. :. 740, 31 L. / Q. B. 113, 6/,. T. 466.— Overruled in Ashen- den V. London. B. & S. C. R. Co., L. R. 5 Ex. D. 190, 42 L. T. 586, 28 W. R. 511, 44 J. P. 203. A condition that horses shall be carried entirely at the owner's risk is just and reasonable where there is the alternative of a higher rate under a different contract, but such a condition will not protect the com- pany from liability for delay where the contract was to deliver in a reasonable time. Robinson v. Great Western R. Co., 14 IV. R. 206. I //. &* R. 97, 35 L. J. C. P. 123, L. R. I C. P. 329.— Followed in D'Arc v, London & N. VV. R. Co.. L. R. 9 C. P. 325. 30 L. T. 763, 22 W. R. 919. 93. what are " unjust " op " un- reasonable."— A special contract entered into respecting the carriage of live stock, providing that the stock shall be conveyed " at the owner's risk in connection with the sea part of the transit," is unjust and un- reasonable. Corrigan v. Great Northern &* M. F. L. R. Cos.! L. R. 6 /r. 90. Doolan V. Mid/and R. Co., 25 IV. R. 882. 37 L. T. 317; reversing L. R. 10 Jr. C. L., and re- storing 9 Ir. C. L. 20. A condition in a special contract for the carriage of live stock, to the effect " that where the charge of conveyance is per wagon, as the owner or his servant is re- quired to superintend the loading of the stock and is allowed to place as many ani- mals in such wagons as he considers may be conveyed with safety, the company will not be responsible for loss arising in any way from the overcrowding of such wagons, or for injuries done in the loading or unload- ing thereof, or in consequence of one ani- mal i.juring another," is unjust and un- reasonable. Corrigan v. Great Northern &* M. '^. L. R. Cos., L. R. 6 Ir. 90. it. condition in a carrier's oflfer to carry at certain reasonable rates, " that it would not be accountable for the correct selection of the owners' cattle on landing, nor on load- ing into the wagon at L." (the termination of the sea journey), " nor on unloading at destination," is unreasonable and unjust. McNally v. Lancashire &* V. R. Co., L. R. 8 fr. 81, A condition in a special contract for the carriage of live stock that the owner shall undertake all risks, and that the company shall not h*^ liable for any loss or injury from any cause 'vhatsoevcr, is unreasonable, although by another condition the company undertakes to give free passes to persons having the care of live siock, as an induce- ment to owners to send proper persorfs to take care of them. Such conditions do not relieve the company from its common-law duty 10 keep its station in a proper condi- tion and to deliver the cattle at a proper place. Root A v. Northeastern R. Co., 36 L.y, Exch. 83. L. R. 2 E.xch. 173, 15 W. R. 695, 1 5 Z. r. 624. A condition is unreasonable, within the meaning of § 7 of the Railway and Canal Traffic Act 1854, where it stipulates that the company is not to be lial)le for any conse- quences arising from over-carriage, deten- tion, or delay in or in relation to the con- veying or delivering of the cattle to be carried, no matter how caused, there being no reduced rate as a consideration for the special contract. Allday v. Great Western R. Co., s B. &' S. 903, 1 1 /ur. N. S. 1 2, 34 Z. /. Q. B.S.13 '^- ^- 43. II L. T. 267. A condition whereby a railway company stipulates to be free from any injury to cattle in consequence of over-carriage, de- tention, or delay is unreasonable, although a reduced rate is charged. Allday v. Great Western R. Co., $ B. &• S. 903. 1 1 /ur. N. S. 12, 34 Z./. Q. B. 5, 13 W. R. 43, II L.T. 267. Under the Railway and Canal Traffic Act 1854, § 7, a railway company cannot stipu- late that it will not be liable " in any case " above certain specified values for loss or damage to a horse or dog, unless the value is declared ; such a condition is not just and reasonable within the meaning of the act. Ashenden v. London &* B. R. Co., L. R. 5 Ex. D. 190, 42 Z. T. 586. 28 W. R. 511. Conditions in a contract for the carriage of cattle that the company is to be relieved from all liability and that the owner is to see to the efficiency of the car before his stock is placed therein, complaint to be made in writing to the company's agent be- fore the car leaves the station, are neither just nor reasonable. Gregory v. West Mid- land R. Co., 2 //.&* C. 944, 10 /ur. AL S. 243, 33 Z./. Exch. 155, n W. R. 528. A condition in a special contract for the carriage of horses, exempting the company from all liability whatsoever, is unjust and unreasonable, although the horses are car- ried at a reduced rate. Such condition jmrr iiSO CARRIAGE OF LIVE STOCK, M4, 95. il m i ' :.f is not aided by an altenuuivc condilion wiiereby llie cunipany assumes tlie risk upon payment of additional charges, but refuses to entertain any claim unless the injuries are pointed out to the company's agent at the time of unloading, that condi- tion also not being in itself just and reason- able. L/(>yti V. Water/ ord &^ L. R. Co., 15 //-. C. L. 37, 9 ^- T. 89. A condition in a contract for the carriage of horses, relieving the company of all liability whatsoever, is neither just nor reasonable ; and if the truck in which the horses are conveyed is defective, owing to which the horses are injured, the company is liable. M'Manus v, Lancashire &* Y. R. Co., 4//.&^N. 327, 5 /«/-. A^. 5. 651, 28 L. J. Ex. 353, 33 L. T. 259; reversing 27 L. J. E.x. 201, 2 H.&^ N. 693. 94. Execution of the contract- Duress. — Where the owner of live stock has contracted with the carrier for cars for several loads and has himself delivered one car-load and signed a contract containing provisions limiting the carrier's liability, it will be presumed that persons whom he sends with others are authorized to sign contracts containing similar provisions. Illi- nois C. R. Co. V. Morrison, 1 9 ///. 1 36. A provision in a contract for the shipment of live stock to the effect that the owner should have a pass on the road for the purpose of taking care of the stock, and that he should assume the risk of injury to the stock by each other, but not signed until after most of the stock had been shipped, is without consideration, and will not relieve the carrier from the duty of exercising ordinary care. German v. Chi- cago Gf N. W. R. Co., 38 Iowa \ 27. The Railway and Canal Traffic Act 1854 applies to cases where a special contract has been signed, in accordance with the proviso in § 7, that no special contract between com- pany and shipper respecting the receiving of animals shall be binding unless signed by the shipper or the person delivering the animals, M'Manus v. Lancashire &* Y. R, Co., ^ H. &* N. 327, 5 Jur. N. S. 651, 28 L. J. Ex. 353, 33 L. T. 259: reversing 27 L. J. Ex. 201, 2H.Sr' N. 693. After plaintiff had purchased certain horses he contracted with the soliciting agent of defendant railroad company to ship by its line, and he delivered the horses to the ap;ent, who afterward handed plaintiff a bill of lading which was signed by the agent in the name of the persons from whom plain- tiff bought, and contained conditions limit- ing the carrier's liability, plaintiff having given no authority to either party to sign such a bill of lading. Held, that he was not bound thereby. Ohio &* M. R. Co. v. Ham- lin, 42 ///. App. 441. Where a railway company had in fact only one rate at which it carried or offered to carry cattle from O. to S. , although it had posted up, in the office of its agent at O., other and higher rates, and an owner of cattle, without anything being said about any special contract, but with the consent of the company, placed liis cattle in the company's cars ai O., to be transported to S., and the agent of the company at O. then presented to the shipper a certain special contract for carrying such cattle at the full rate at which the company carried cattle, though less than the posted rates, and with certain restrictions, limitations, etc., as to the company's responsibility, and demanded that the shipper should sign such special contract or have his cattle unloaded, and gave to the shipper no other option or alternative, whereupon the shipper signed such special contract — held, that the spe- cial contract, so far as it attempted to restrict the liability of the railway company, or to impose additional burdens upon the shipper, as conditions precedent to a re- covery for damages resulting from the neg- ligence of tlie railway company, was with- out consideration and void. Kansas Pac. R. Co. v. Reynolds, 17 Kan. 251. 95. Igrnorancc of shipper as to contents of special contract.— Where a party who can read accepts a bill of lading containing limitations of the carrier's liabil- ity for injuries to live stock shipped, in the absence of proof of fraud or coercion ' i cannot relieve himself from its terms on t . ground that he did not know its conten'.s, where lack of such knowledge was because he did not choose to read it and inform himself. Wabash, St. L. &* P. R. Co. v. Black, 1 1 ///. App. 465. Where a common carrier enters into a contract for the carriage of live stock, with conditions limiting its common-law liability such as are reasonable and binding, the shipper can only recover for a breach by declaring upon the contract ; and he cannot avoid such conditions on the ground tliat he had not read them or did not know their contents when he executed the contract. whom plaiii- iditions limit- aintiff having party to sign lat he was not i'. Co. V. //am- r had in fact ied or offered though it had agent at O., an owner of >g said about 1 the consent cattle in the isported to S., ly at O. then ertain special ttle at tile full carried cattle, ates, and with •s, etc., as to ind demanded I such special unloaded, and ler option or hipper signed that the spe- aitempted to way company, ens upon the dent to a re- from the neg- my, was with- A'ansas Pac. I. |»per r.s to •act.- Where bill of lading :arrier's liabil- fiipped, in the coercion ' ; i terms on i . its contcnis, was because : and inform P. R. Co. V. inters into a e stock, with i-Iaw liability binding, the a breach by nd he cannot ground that It know their he contract. CARRIAGE OF LIVE STOCK, OO, 97. 781 International &* G. N. R. Co. v. Watt, 2 Tex. App. {Civ. Cas.) 686. Plaintifl sent some cattle from B. by de- fendants' railway, signing a paper which declared he undertook all risk of loss, injury, or damage, in conveyance and other- wise, whether arising from the negligence, default, or misconduct, criminal or other- wise, on the part of defendants and their ser- vants. He was told by the station-master that he would have to sign these condi- tions, which he did, without taking time to read them. To an action for negligence in the carriage of the cattle, by which five of them were killed, defendants pleaded these conditions, which the jury found that the plaintiff had signed. Held, that he was bound by them, though he might not have read or understood the paper. O'Rorke v. Great Western R. Co., 23 U. C. Q. B. 427.— Distinguishing Simons v. Great Western R. Co., 2 C. B. N. S. 620.— Followed in Hood V. Grand Trunk R.Co., 20 U. C. C. P. 361. There was also a count in trover for con- version of the five cattle, as to which the defendants paid into court $52, being the price for which they were sold by defend- ants' station-master after they had been killed. Held, that such payment admitted only a cause of action, not the particular cause sued for, and that the evidence proved no conversion by defendants, the sale not being the ordinary duty of a sta- tion-master. O'Rorke v. Great Western R. Co., 23 U. C. Q. B. 427.— Quoting Perren V. Monmouthshire R. Co., 11 C. B. 865. 06. Interpretation of special con- tracts limiting liability."' — A clause in a contract for the shipment of live stock, among other things exempting the carrier from liability for loss caused by suffocation, will not relieve the company in case of loss, if the suffocation is the result of unnecessary delay, Ballv. Wabash, St. L. &• P. R. Co., 25 Am. &* Eng. R. Cas. 384, 83 Afo. 574. A provision in a contract for the trans- portation of horses, that the carrier should not be liable for various specified injuries, including "being injured by the burning of hay, straw, or any other material for feed- ing the stock, or in any way," does not relieve the carrier from liability for a horse that is killed by a collision. The words "in any way" should be restricted to a •Secrtw/^ «1. burning in any way, or at least they are too indefinite to include a loss from any cause. Zimmcr v. New York C. 6f* H. R. R. Co., 42 N. Y. S. R. 63, 62 Hun 619, 16 A'. Y. Supp. 631.— Quoting Holsapple v. Rome, W. & O. R. Co., 86 N. Y. 278. Where cattle are shipped under a con- tract providing " that in case of accident to or delay from any cause whatever the owners or shippers are to feed, water, and take proper care of the stock," it is error to charge that in all cases, except of unavoid- able delay, accident, or collision, the car- rier was obliged to feed and water the stock, as the contract does not undertake to bind the carrier to feed and water in all cases where the owner is not to do so. Louisville &- N. R. Co. v. Trent, 16 Am. &* Eng. R. Cas, 170, 11 Lea {Tenn.) 82. Where by special contract a railway com- pany is relieved of all liability for damage to horses carried, it is not liable for injury to a horse which, at its destination, is for- gotten and left tied up in the car in an ex- posed place for twenty-four hours. Wise V. Great Western R. Co., i H. &• N. 63, 25 L. J. Ex. 258. Where a "shipper of horses signs a special contract relieving the company from lia- bility for injuries occasioned by the fear or resiiveness of the animals, the company is not relieved from liability in cases where the injury flowed immediately from the fear and restiveness of the animals, directly oc- casioned by some act of negligence on the part of the company. Moore v. Great Northern R. Co., L. R. 10 Ir. 95. HI. illustrations.— A shipper of live stock signed a bill of lading which pro- vided that the railroad company should not " be liable for damage or loss ♦ * ♦ by rea- son of breaking, chafing, weather, fire, or water, except where collision or running from the track, resulting from negligence of the corporation's agents, shall cause the same, and the shipper and owner hereby promise to pay the freight, and to claim no deduction therefrom by reason of any dam- age or loss." Held, that the breaking of an animal's leg, and other injuries occasioned by the movement of the car, were not prop- erly described by the words " breaking " and "chafing" in the bill of lading, and were not, therefore, injuries against which the defendant undertook to exempt itself from liabilitv; and that the bill of lading did not prevent recovery from the defend- 782 CARRIAGE OF LIVE STOCK, 08. M ant under its common-law " liability as car- rier of livestock," Coupland \ . Housatonic R. Co., 6 1 Conn. 531, 23 Ail. Rep. 870, 55 Am. &* Eng. R. Cas. 380. In an action for delay in transporting hogs, it appeared that the contract was that the company should not be liable for loss " by delay of trains, or any damage said property might sustain, except such as might result from a collision of a train." or when cars were thrown from the track, while all the cars containing the hogs remained on the track. Held, that the company were liable for whatever hogs were lost, or what- ever shrinkage occurred by reason of tiie delay caused by the accident ; but not for injury resulting from delay caused by cold weather. Illinois C. R. Co. v. Owens, 53 ///. 39»- A contract of affreightment provided that in case of total loss of any of the stock shipped the actual cash value at the time and place of shipment, but in no case to exceed $100 per head, should be taken and deemed full compensation. Held, that the provision did not fix the actual cash value of the stock, but only limited the compen- sation, and that parol evidence was admissi- ble to show that tlie shipper had agreed with the carrier's agent at the time of shipping at $10 per head. Named v. Missouri Pac. R. Co., 51 Mo. APP.4.S2. Cattle were shipped under a contract pro- viding that the owner assumed the risk of all damage from delays, or in consequence of heat, suffocation, or the ill effects of being crowded' on the cars, and was to have a man accompany the stock, and was to load and unload them at his own risk, with the carrier's " assistance, if required." While in transit the car was detained some three days by reason of a snowstorm, and the cattle remained during a large part of the time in the car without proper attention, by reason of the carrier failing to provide a platform, or the necessary means of unloading, whereby some of the cattle died and others were in- jured. Held, that the provision that the carrier should assist if necessary in loading and unloading referred only to the ends of the route, and did not require it to furnish facilities for unloading at any other point. Penn v. Buffalo &* E. R. Co., 49 A^. Y. 204, 3 Am. Ry. Rep. 355 ; reversing 3 Lans. 443. Contracts are to be construed so as to give to every part of them such meaning as will best effectuate the intention of the par- ties. A written bill of lading of live stock in one provision recited that the place of destination was the terminal point of the receiving company's line, and in otiier pro- visions recited that an intermediate point was the end of its line, and contained pro- visions limiting its liability to its own line. Held, that upon a comparison of all of the provisions it was apparent that the interme- diate point was the terminus of the receiv- ing company's line, and that it was therefore not error to introduce oral evidence to show the fact, as it only tended to make certain what was a fair construction of the contract itself. Swank v. San Antonio &^ A. P. R. Co., I Tex. Civ. App. 675, 23 S. W. Rep. 249. The plaintiff delivered cattle, carriage prepaid, to the defendant railway company for carriage on the terms of signed condi- tions, whereby, in consideration of an alter- native reduced rate, it was agreed that the company were " not to be liable in respect of any loss or detention of or injury to the said animals, or any of them, in the receiv- ing, forwarding, or delivery thereof, except upon proof that such loss, detention, or injury arose from the wilful misconduct of the company or its servants." The cattle were carried ; but, on application made for them by the plaintiff, the defendants, in consequence of their clerk having negli- gently omitted to enter the cattle on the consignment note as "carriage paid," re- fused to deliver them, and alleged that the carriage was not paid. The cattle were kept exposed to the weather until the next day, when, the mistake having been dis- covered, they were delivered. They were damaged by the exposure. In an action for damages by reason of wrongful detention and negligence — held, that the withholding of the cattle under a groundless claim to retain them at the end of the transit was not "detention" within the conditions, and the company were therefore liable. Gordon V. Great Western R. Co., ^ Q.B.D. ^,^\ L. J. Q. B. 58. 4 Ry. ntained pro- its own line, of all of the the interme- 'f the receiv- was therefore lence to show make certain the contract &^ A. P. a. S. IV. Rep. tie, carriage .'ay company igned condi- 1 of an alter- eed that the jle in respect njury to the n the receiv- ereof, except Retention, or lisconduct of The cattle on made for ;fendants, in aving negli- :attle on the fe paid," re- jed that the cattle were itil the next g been dis- They were m action for il detention withholding ss claim to transit was ditions, and •le. Gordon xix. nent iiot- litraet. — as to the ;ock cannot isions of a is delivered or mistake, imiting the carrier's liability, and is presented to him for signature after the stock are loaded in the cars, and when he has not sufficient time to examine its contents. St, Louis, K. C. any for losses that might occur. Held,-\.\\2X the court waL warranted in submitting to the jury the question of what constituted the contract of the parties, and also in defining what the common-law liability of the com- pany was, in case they should find in favor of the theory of the shipper. St. Louis &• S. F. R. Co. V. Clark. 55 Am. <&* Eng. R. Cas. 367,48 R'an. 321, 29 Pac. Rep. 312. — Following Missouri Pac. R. Co. v. Bee- son. 30 Kan. 298.— Followed in St. Louis & S. F. R. Co. V. Clark, 48 Kan. 329. 99. Effect of deviation by eoiiipaiiy flroiii terms of special contract.— If a railroad company deviates from a contract to transport live stock by shipping them by freight service instead of passenger service, as agreed upon, and the stock are injured by the delay and rougher service, the company cannot avail itself of the stipulation in the contract relieving it from liability as insurer at common law ; but such deviation does not relieve the shipper from notifying the company of his claim for damages within five days, where the contract provides for such notice. Pavitt v. Lehigh Valley R. Co., 1 53 Pa. St. 302, 25 Atl. Rep. 1 107. Where a contract for the shipment of live stock contains mutual conditions and limi- tations, such as that the shipper shall be en- titled to ride free on the train with his stock, and other conditions in favor of the carrier limiting its common-law liability, a violation by the carrier of the contract, in failing to carry the shipper, releases him from all stipulations that are favorable to the carrier. Texas &^ P. R. Co. v. Davis, 2 Tex. App. {Civ. Cas.) 156. 100. Burden on carrier to show loss witliin limitation.* — In an action for tlie death of live stock in the course of transportation and while wholly under the care of the carrier, the burden is upon the defendant to show that the death was within tlie exception qualifying its general liability. Lindsley v. Chicago, M. St. L. R. Co., 36 Minn. 396, 31 A^. W'. Rep. 102. Duty to notify second car- rier. — A bill of lading given by a railroad for live stock which recites that the com- pany is to notify a party beyond its own line, is not in itself a contract to carry the cattle to that point. Michigan C. R. Co. v. Myrick, gA/u. &<• £n£. R. Cas. 25, 107 C/. S. 102, I Sup. Ct. Rep. 425.— Reviewed in Phifer V. Carolina C. R. Co., 89 N. Car. 311,45 Am. Rep. 687. Where a carrier undertakes to transport cattle to a point beyond its own line, it is liable for a delay at the end of its line caused by the train on the connecting line having departed before the one carrying the cattle arrived; and it is proper to admit evidence to show that the owner had re- quested an agent to telegrapli ahead, notify- ing the connecting line that the stock were coming, where it appeared that it was usual to give such telegraphic notice, and for one road to hold its trains for cars on the other ; and evidence to show the condition of the stock at the place of destination, their value, and what the value would have been if there had been no delay. Dunn v. Han- nibal &> St. /. R. Co., 68 Mo. 268. 103. Delivery to Hiicceeding car- rier.* — A railroad company receiving cat- tle as a common carrier for transportation over its own road, to be delivered at its terminus to the next connecting road, and thence by other connecting roads to the place of destination in another state, is lia- ble only for the safe transportation of the cattle over its own road and their proper delivery at its terminus to the next connect- ing road. Alabama G. S. R. Co. v. Thomas, 32 Am. &• Eng. R. Cas. 464, 83 Ala. 343, 3 So. Rep. 802.— Distinguishing Mobile & G. R. Co. V. Copeland, 63 Ala. 219; Buckland V. Adams Exp. Co., 97 Mass. 124; Nashua Lock Co. V. Worcester & N. R. Co., 48 N. H. 339; Cutts V. Brainerd, 42 Vt. 566; Wilcox V. Parmelee, 3 Sandf. (N. Y.)6io; Mercan- tile Mut. Ins. Co. V. Chase, i E. D. Smith (N. Y.) 115; East Tenn., V. & G. R. Co. v. Rogers, 6 Heisk. (Tenn.) 143; St. Louis, K. C. & N. W. R.Co. V. Piper, 13 Kan. 505. The defendant company having received cattle for transportation over its own road and safe delivery at its terminus to a con- necting road, and having transferred them at its terminus to cars furnished by the connecting road, was bound to permit the consignor to put the cars in proper condi- * Duty of carrier of live stock to torward by connecting lines, see note, 3 L.R. A. 766. Duty of company in receiving stock for through shipment to deliver to next connecting carrier, see note, 9 L. R. A. 450. CARRIAGE OF LIVE STOCK, 104. 785 o carry the C /?. Co. V. 5. 107 U. S. VIEWED IN 89 N. Car. transport ■n line, it is of its line lecting line :arryingthe to admit ler had re- ead, notify- stock were t was usual and for one 1 the other ; tion of the tion, their have been ntt V. /fan- ling car- eiving cat- isportation ered at its ; road, and ads to the state, is lia- :ion of the leir proper xt connect- V. Thomas, ^^/a. 343, 3 lobile & G. Buckland 4; Nashua i., 48 N. H. )6; Wilcox • ; Mercan- . D. Smith r. R. Co. V. . Louis, K. an. 505. g received own road to a con- rred them ed by the hermit the iper condi- torward by 766. slock for connecting dition for the safe transportation of the cattle, as he had agreed to do, or to have that duty performed by its own servants with reasonable care and diligence, provid- ing suitable bedding, necessary partitions, etc., and avoiding undue crowding of the animals in the cars; and, the injury to the cattle resulting from the negligent perform- ance of this duty by defendant's servants, after plaintiff had offered to discharge it himself, the defendant is liable. Alabama G. S. K. Co. V. Thomas, 89 Ala. 294, 7 So. Rep. 762. In such a case it is competent to prove that, on the arrival of the cars at the de- fendant's terminus, plaintifl asked the depot agent if the cattle were to be trans- ferred to oliier cars, as he desired to super- intend the transfer and preparation of the cars, and was told by the agent that no transfer would be made; that the cattle were afterwards transferred during his tem- porary absence, and that he then notified the agent that if any injury resulted from the improper transfer or preparations he would hold the defendant liable for it. As to these matters, the agent was acting within the scope of his authority and duties, and the evidence tends to show an offer by plaintiff to perform the duties imposed on him by the contract. Alabama G. S. R. Co. V. Thomas, 89 Ala. 294, 7 So. Rep. 762. Where cattle have been carried to the end of the first line, it is gross negligence for the carrier to hold them for three hours before delivering to a connecting line, or to fail to notify the connecting line or the consignees, during which lime repeated in- quiries are made therefor. Rock Island &• P. R. Co. v. Potter, 36 ///. App. 590. Though the owner of mules is travelling with them, under a contract with the car- rier that he shall take care of them while in transit, still if a delay is necessary in de- livering them to a sec ind carrier, it is the duty of the company to unload and feed and water them, and this duty cannot be imposed upon the owner until the contract of shipment. Dunn v. Hannibal &- St. J. R. R. Co., 68 Mo. 268. A common carrier of live stock has a right to unload them, upon receiving them from a connecting carrier, for the purpose of transferring them to its own cars, pro- vided there be no delay in doing so, and where there is no contract nor circum- stances making it its duty to carry them I D. R, D.— 50. through without a change of cars. McAl- lister V. Chicago, R. I. &> P. R. Co., 7 Am. &* Eng. R. Cas. 373, 74 Mo. 351. 104. Right of initial carrier to limit liability to Hh own line.— (1) General rule. — A carrier of live stock may limit the damages recoverable from It for loss or injury thereto to injuries occurring on its own line. Gul/, C. &* S. F. R. Co. v. Thoinp. son, {Tex. Civ. App.) 21 S. W. Rep. 186.— Following McCarn v. International & G. N. R. C(j., 84 Tex. 352, 19 S. W. Rep. 547. An initial carrier of live stock is not lia- ble for an injury thereto after it has been reloaded on cars of a connecting carrier, where the stock is shipped under a contract providing that the initial carrier shall not be liable for injuries received after delivery to a connecting line. Gulf, C. 6r* S. F. R. Co.v. Tennant, (Tex. Civ. App) 22 S. W. Rep. 761. A bill of lading whereby a carrier agrees to ship cattle over its own line and certain connecting lines at a fixed rate for the whole distance, is construed to be Ji through bill of lading; and a stipulation therein limit- ing the liability of the carrier to loss on its own line is not binding. Gulf, C. &* S. F. R. Co. V. Vaughn, 4 Tex. App. (Civ. Cas.) 269, 16 5. JV. Rep. 775.— Quoting Bank of Ky. V. Adams Exp. Co., 93 U. S. 180. (2) Illustrations. — Cattle were shipped to a point in another state which would re- quire them to pass over connecting lines. The bill of lading provided that suit for damages should be brought within forty days ; that the company would not be liable for delays caused by "strikes" or mobs, and that the company would only be liable while the cattle were on its road. The shipment was delayed in another state by a connecting line failing to carry them promptly on account of a "strike." Held, that the limitations of liability contained in the bill of lading were valid, whether the contract of shipment were deemed inter- state or to be wholly performed within the state. Gul/, C. &• S. F. R. Co. v. Gatewood, (Tex.) 14 5. W. Rep. 913. — Approving Gulf, C. & S. F. R. Co. V. Trawick, 68 Tex. 314, 4 S. W. Rep. 567. A company operated another road under a lease, and contracted to carry certain live stock from a point on the line of the lesser company to a point out of the state, and be- yond the line of either lessor or lessee, the contract containing a provision limiting the 786 CARRIAGE OF LIVE STOCK, 106. it. is fiability for damages to loss upon its own line, //>/, /. M. &* Eng.R.Cas. p. 104, 8 .9. Louis, I. M. !36. ive stock at nericus over carrier, and, rst road they id Americus, dbythecon- ! not reh'eve ng by reason the place to ed. Bryant 6- Ettg. R. D IN South- Ga. 61. by a carrier >ad, limiting ions, a con- perty at the >t claim the for injuries t, when the tlie through ^er connect- )y authority ! compensa- . the special ire to their sly limited ; irrier, while road, con- s stock, as to titiK line to le liability of lee 45 Am. k. tracts also for its "connecting lines," and it is declared that the exemptions shall inure to the benefit of the connecting lines, " un- less they shall otherwise stipulate " on re- ceiving the goods. Western R. Co. v. Har- well, 45 Am. (S- Eng. R. Cas. 358, 91 Ala. 340, 8 So. Rep. 649. Where the initial carrier by accepting live stock destined to a point beyond its line makes a contract for the entire journey, and places the stock in cars belonging to a connecting line, and some of the stock are found to be injured on arriving at their destination at a station on such connecting line owing to a defect in one of the cars, the connecting line is not liable. Coxen or Coxon v. Great Western R. Co., 5 H. &* N. 274, 29 L. J. Exch. 165, I L. T. S. 442. 106. As respects damaf^e done be- fore stock reached second carrier's line.— Where the initial carrier of live stock contracts for transportation beyond its own line, but limits its liability to its own road, the last of several connecting lines which carries the stock to their place of destination is not liable as a joint contractor or partner . for injuries received by the stock before they ' reach its line. Ft. Worth 6- D. C. R. Co. v. Williams, 42 Am. &* Eng. R. Cas. 464, 77 Tex. i2i,i^S.W. Rep. 637.— Followed in International & G. N. R. Co. v. Thornton, 3 Tex. Civ. App. 197 ; McCarn v. Interna- tional & G. N. R. Co., 84 Tex. 352. Receiving live stock by a railroad com- pany from a connecting line, as it is bound to do under the Texas statute, without any arrangement constituting a partnership or other agreement for through shipments be- tween the different companies, will not render it liable for injuries occurring before it received the stock. Fort Worth &» D. C. R. Co. V. Fuller, 3 Tex. Civ. App. 340, 22 S. W. Rep. 1006.— Following Gulf, C. & S. F. R. Co. V. BaJrd, 75 Tex. 256, 12 S. W. Rep. 530. Texas Rev. St. art. 4251, makes it the duty of railroad companies in the state to receive the passengers and merchandise of any connecting road. Where cattle are shipped from a point in another state under a contract limiting the initial carrier's lia- bility to its own road, the mere fact of a road in Texas receiving the stock from an intermediate carrier is not sufficient proof of a joint contract, or of a partnership, to make it liable for injuries before the stock reached its line, as under the above statute it had no choice about receiving the stock. Gulf, C. Sf S. F. R. Co. v. Baird, 40 Am. 6- Eng. R. Cas. 160, 75 Tex. 256, 12 S. W. Rep. 530.— Followed in Ft. Worth & D. C. R. Co. v. Williams, 42 Am. & Eng. R. Cas. 464, 77 Tex. 121, 13 S. W. Rep. 63 ; McCarn v. International & G. N. R. Co., 84 Tex. 352 ; International & G. N. R. Co. V. Campbell, i Tex. Civ. App. 509; Missouri Pac. R. Co. v. Weisman, 2 Tex. Civ. App. 86; International & G. N. R. Co. V. Thornton, 3 Tex. Civ. App. 197. It is the duty of the carrier to receive live stock from a connecting line for shipment whenever tendered, unless it has a legal ex- cuse for not doing so; and if a wrongful refusal on its part contributes to causing an injury, it will be liable for the whole damage, even though the preceding con- necting carrier has been guilty of negli- gence which aided in producing the dam- age, it being settled that where two wrong- doers contribute in causing an injury both are liable for the whole damage, though they have acted separately. Gulf, C. &* S. F. R. Co. V. Godair, 3 Tex. Civ. App. 514, 22 S. W. Rep. 777. 107. Subsequent carriers as agents of initial carrier. — Where the initial carrier contracts for the shipment of cattle beyond its own line it is its duty to notify each succeeding carrier of the conditions of the shipment, and each of them becomes the agent of the initial carrier for the safe transportation and delivery of the cattle; and this will apply to the managers of a stock-yard to whom the cattle are delivered by the last carrier, making the initial car- rier liable for their mismanagement. Myrick V. Michigan C. R. Co., 9 Biss. {U. S.) 44. Where one of two railways having ar- rangements respecting through traffic is the agent of the other to make carriage con- tracts, and makes a contract for the carriage of live stock under conditions which do not protect its associate company, an action will lie against the latter company for the loss of the stock. Gil. v. Manchester, S. &* L. R. Co., 42 L.J. Q. B. 89. L. R. 8 Q. B. 186, 21 W. R. 525. 28 L. T. 587. 108. liien of connecting carrier for freight charges. — Though a shipper has entered into a contract with the initial carrier for a through freight rate on live stock shipped he cannot demand the stock from a connecting carrier at the place of destination upon tendering the amount of 788 CARKIAGli OF LIVE STOCK, lOB-111. ^» the agreed freight, unless he shows that such initial carrier was authorized to enter into the contract for himself and the con- necting line. Lewis v. Richmond &> D, li. Co., 25 So. Car. 249. A shipper of horses who is present and permits a carrier to receive his horses from a prior carrier and pay advance charges, so as to have a lien therefor on the horses, cannot set off damages done to the horses by the prior carrier against such lien, tliough the connecting carrier knew of the damages, and that tlic shipper intended to demand compensation from tiie prior car- rier. St. Louis, /. M. &* S. R. Co. v. I^^ar, 55 Ami. (5^ JC»g. R. Cas, 414, li^Ark. 399, 15 .S-, IV. Rep. 330. yil. TBAKSFORTATION OF DISEASED LIVE STOCK. 100. CoiiHtitiitionality of HtatiitCM. — A statute of a state wiiich prohibits driv- ing or conveying any Texas, Mexican, or Indian cattle into the state between the first day of March and the first day of No- vember in each year, is in conflict with the clause of the constitution which ordains : " Congress shall have power to regtdate commerce with foreign nations, and among the sevrral states, and with the Indian tribes." Hannibal &^ S/. J. R. Co. v. Husen, 95 U. S. 465, 15 Am. Ry. Rep. 325. — Approved in Gilmore v. Hannibal & St. J. R. Co., 67 Mo. 323. Followed IN Adams Exp. Co. v. IBoard of Police, 65 How. Pr. (N. Y.) 72 ; Chicago & A. R. Co. V. Erickson, 91 111. 613. Quoted IN State 7'. Baltimore & O. R. Co., 18 Am. & Eng. R.Cas. 466. 24 W. Va. 783; Hardy V. Atchison, T. & S. F. R. Co., 18 Am. & Eng. R. Cas. 432, 32 Kan. 698 ; Fryt/. State, 63 Ind. 552 ; Commonwealth v. Wilson, 14 Phila. (Pa.) 384; Norfolk & W. R. Co. v. Commonwealth, 88 Va. 95. Reviewed in Baggz/. Wilmington, C. & A. R. Co., 109 N. Car. 279. The act in relation to Texas and Chero- kee cattle (Illinois Rev. St. 1874, p. 141) is void, as being repugnant to the constitu- tion of the United States, art. i, § 8, which provides that " Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Chicago &> A. R. Co. v. Erickson, 91 ///. 613.— FOLLOWING Hanni- bal & St. ]. R. Co. V. Husen, 95 U. S. 465. Overruling Yeazel v. Alexander, 58 111. 254; Stevens?'. Brown, 58 111. 289; Somer- ville V. Marks, 58 III. 371 ; Chicago & A. R". Co. V. Ga.saway, 71 111. 570. The Missouri statute, Wagn. Mo. St. p. 251, i! I, known as the Texas cattle act, prohibiting the introduction of Texas, Mexi- can, or Indian cattle into tiie state between March i and November 1, unless tluy had been kept the entire previous winter in the state, is in conflict with that provision of the constitution of the United States con- ferring upon congress the power to regulate commerce among the states. Gilmore v. Hannibal Sf^ St. J. R. Co., 67 Mo. 323.— Foi,- LowiNc; Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465. OvF.KRUl.iNf; Wilson v. Kan- sas City, St. J. & C. B. R. Co., 60 Mo. 184 ; Diniond %>. Kansas City, St. J. & C. B. R. Co., 60 Mo. 393 ; Meicer v. Kansas City, St. J. & C. B. R. Co., 60 Mo. 397 ; Kenney v. Hannibal and St. J. R. Co., 62 Mo. 476. 110. Illinois.— A railroad is not bound, as a common carrier, to receive for trans- portation that which the law prohibits it from carrying, and it is liable for any injury occasioned by its bringing Texas or Chero- kee cattle into this state, the sanie as an individual is. Chicago 6- A. R. Co. v. Gas- away, 71 ///. 570. An unconstitutional law, prohibiting rail- ways from carrying Texas or Cherokee cat- tle into or through the state, being void, will afford no excuse for a refusal or delay in receiving and shipping such cattle when offered. Chicago &> A. R. Co. v. Erickson, 9! ///. 613. In an action for bringing Texas and Cherokee cattle into this state by one who purchased the same, to recover for a fatal disease communicated to his native cattle, the declaration will be fatally defective if it fails to aver that the cattle were not brought into the state between October i and the 1st of the following March, as without this his purchase and ownership is illegal, and, being a violation of the law, he can main- tain no action for an injury growing out of his wrongful act. Frye v. Chicago, B. 6- Q. R. Co., 73 Lll. 399. 111. Iowa.— The Iowa St. (c. 126, Acts 2ist Gen. Assem.) prohibiting any person or corporation from bringing into the state cattle in such condition as to infect other cattle with pleuro-pneumonia or Texas fever, and giving any person damaged by violation of the act a right of action to re- cover the damage suffered from the person 9; Somer- ;ago & A. Mo. St. p. ciiltle act. !xas, Mexi- e bftweeii llu-y liad Iter ill tlu! ovisioii of latcs coii- ) rcfjulatc iliiiore V. 23.— Foi,- V. Huscn, 11 V. Kan- Mo. 184; C. B. R. IS City, St. Kenncy v. X 476. lot bound, for trans- oliibits it any injury f)r Chcro- nie as an "i». V. Gas- t)iting rail- roln to re- e person CARRIAGE Ol' LIVIi STOCK, llti. Il.'l. 780 or corporation violating tiie statute, docs not impose upon a railroad company an ab- solute liability to pay all damages arising by reason of the carrying of infected animals into the siate. Such a statute only makes the fact of an injury so occurring prima- facie evidence of negligence, which may be rei)utted by the railroad company showing that it had no notice, and could not, by the use of reasonable care, have ascertained that the animal was diseased. Furley v. Chicago, M. &^ S/. P. A'. Co.. 57 Am.&*Eng. K. Cas. 26, {Iowa) 57 A^. W. Rep. 719. 112. KaiiMnH.— Under the Kansas Act of 1881, ch. 161, as amended in 1883, ch. 145, and 1884, ch. 3, for the protection of cattle against contiigious diseases, a railroad company is not liable for transporting cat- tle into the state where it acts in good faith and without knowledge, or upon such facts as to charge it with knowledge, that the cattle are of a kind liable to communi- cate disease to the domestic cattle of the state. Missouri Pac. P. Co. v. Finley, 38 A'(i«. 550, 16 Pac. Rep. 951. Where a railway company, transporting through Kansas cattle diseased with the Texas splenic or Spanish fever, has its train wrecked within the state, so as to make it necessary to unload the cattle, and there- upon is notified that the cattle are from Texas, and will spread disease if permitted to run at large or driven on the high- way, it should corral the cattle at or near the wreck, or otherwise prevent them from running at large or getting upon the public highway; and if it drives the cattle upon the highway or allows them to run at large after receiving such notice, it is liable for diseases communicated, unless the owners of the domestic cattle are guilty of contrib- utory negligence. Missouri Pac. R. Co. v. Finley, 38 Kan. 550, 16 Pac. Rep. 951. 113. Missouri.— Under Wagn. Mo. St. p. 251, § I, prohibiting the importation of Texas, Mexican, or Indian cattle between March i and November i, unless they had been kept in the state the previous winter, it makes no difference where the cattle started from, whether in or out of the state. If the cattle have not been kept in the state for an entire previous winter, the driving or conveying of them into another county of the state is prohibited, and the statute makes the persons wrongfully bring- ing in such cattle liable for all damages, di- rect or remote, due to his wrongful act ; and this will apply to diseases communicated while they arc in his control or caused by want of proper care, without regard to the question of negliyence. Wilson v. Kansas City, St. J. A^ C. B. R. Co., 60 Mo, 184.— FoiLOWKU IN Husen v. Hannibal & St. J. K. Co., 60 Mo. 226; Dimond v. Kansas City, St. J. & C. B. R. Co.. 60 Mo. 393; Mercer v. Kansas City, St. J. & C. B. R. Co., 60 Mo. 397 ; Kenncy v. Hannibal & St. I. R. Co.. 62 Mo. 476. The liability of railroad companies for violating Missouri Rev. St, § 4358, prohibit- ing the bringing or moving through the state, or from one part of the state to another, of diseased cattle is not an un- qualified one; but the liability is limited to the diseases communicated to any other animal or cattle in the neighborhood or along the line of such transportation or re- moval. Coyle V. Chicago &^ A. R. Co., 27 A/o. App. 584. The meaning of the " line " of the rail- road, as used in this statute, is its right of way, usually one hundred feet in width ; and the expression, " along the line " of the road, means in a line with it — by the side of it, near to it. The meaning of the term, " neighborhood," is a place near — vicinity, adjoining district, etc. Coyle v. Chicago Sf A. R. Co., 27 Mo. App. 584. If a railway furnishes cattle-cars in order that ties should be loaded thereon, and these cars contain sucli an accumulation of refuse matter, resulting from the carriage of cattle, that the loading of the ties on them necessarily involves t ir^ ejection of some of this refuse matter, such ejection constitutes an unloading of the matter by the railway company within the purview of the statutory inhibition (Mo. Rev. St. § 2669), though the ties are loaded on the cars by the servants of an independent contractor. Pike v. Eddy, S3 Mo. App. 505. The fact that the loading of the ties by these servants reasonably and properly in- volved the ejection of this matter, is not sufficient to render the ejection an ' nload- ing of the matter by the railway company, so as to subject it to liability under the statute. Pike v. Eddy, 53 Mo. App. 505. Though a company may have violated the statute by bringing in Texas cattle, it is not liable for the spread of disease after it has parted with them and they have been driven by the owner into another county, as each transportation is an independent of- 790 CARRIAGE OF LIVIi STOCK, 114-116. ■!.: » I' 3 ) fensc. Surface v. ilannihal &* S/. J. R. Co., 6o Mo. 3iC. Surjacc v. Hannibal &* S/. /• A'. Co.,6i Mo. 452.— Following Wilson t-. Kansas City, St. J. & C. B. R. Co., 60 Mo. «95 1 14. TexuH.— A shipper of cattle is not required to have his entire herd inspected, as required by the Texas statute, before de- livery to a carrier for shipment ; neither would the agent of the currier violate the statute by receiving the entire herd for ship- ment before full compliance with the law. So, where part of the cattle have been in- spected, the loading may begin while the re- mainder are being inspected, so as not tu cause a delay. International &* G. N. A'. Co, v. Wright, 2 Tex. Civ. A pp. 198, 21 S. IV. Rip. 56. Plaintifl applied for cars, which were fur- nished (ind pointed out to him, but before his cattle were all inspected, as required by statute, other cuttle were offered for ship- ment and were placed in the cars, causing a delay in the shipment of plaintiff's. At the time the second herd were otiered the inspection of plaintiff's cattle had so far pn\gressed that the loading might have commenced at once without any delay. Held, that the company was liable for the delay caused by giving the other herd the preference. International &* G. N. A'. Co. V. IVr^ht, 2 Tex. Civ. App. 198, 21 S. W. Rep. 56. 115. English decisionH.— A railway company commits no breach of duty in re- fusing to carry cattle witliout a declaration from the owner or person in charge under the Contagious Diseases (Animals) Act 1878, where a local authority of the county makes a regulation requiring such declaration be- fore bringing cattle into the county. Will- iams V. Great Western R. Co., 52 L. T. 250, 49/- -''• 439 D. Where cattle are carried over a series of connecting lines, a railway company carry- ing them over a portion of the route termi- nating in the county of D., although not into such county, which had prohibited the movement of animals into that district, is liable to be convicted of an offense against the Contagious Diseases (Animals) Act 1878, as persons " causing, directing, or permitting the movement of the animals in contraven- tion of the regulations of the local author- ity." Midland R. Co', v. Freeman, L. R. 12 Q. B. D. 629, 53 L. J. M. C. 79. 3* Vl^' R- 830, 48/. /».66o. VIII. TRAHSFOBTATION OV DOQI. 110. Liability I'ur Ionn or Injury.*— (I) Generally.— k railroad company is liiihic for the loss of a dog where it is carricfl under a regulation of the company us " luij,'- gage-men's perquisites," and a sum is paid for the transportation. Cantling v. /lumii- bal a- St. J. R. Co., 54 Mo. 385, 12 /////. Ay. Rep. 387.--Rf.viewin(; Mintcr?'. I'acilic K. Co., 41 Mo. 503. A passenger, taking his dog with him on a hunt, and being required by the conduc- tor to put him in the baggage-car, mav maintain an action against the company for the loss of the dog, which the baguage-masler refused to deliver at his destination with- out the payment of a small fee, and which WHS then carried on and lo.si ; and a rule of the company in reference to the curry in>,' of dogs, requiring that they be placed in the bag- gage-car, and allowing the liagfjagc-master a small charge for his care, is no defense to the action, when it is not shown that tlic passenger had knowledge or notice of it. Kansas City, M. &* li. R. Co. v. Higdon, 52 Am. «S- Eng. R. Cas. 495, 94 Ala, 286, 10 So. Rep. 282. (2) In England. — A dog is within §7 of the Railway and Canal TrufTic Act, 1854. Har- rison V. London, B. 6>* S. C. R. Co., 6 Jur. N. S. 954, 29 L.J. Q. B, 209. 2 B.Qr^S. 122, 8 W. R. 524, 2 L. T. 423 ; reversed in 8 Jur. N.S. 740,31 L.J.Q. B.iiy Section 7 of the Railway and Canal Traffic Act, 1854, applies solely to cases where the loss or injury is occasioned by the neglect or default of the company. The loss of the dog in this case was purely accidental, and the company is exempt from liability by the terms of its contract. Harrison v. London, B. &- S. C. R. Co., 2 B.&' S. 122, 8/ur. N. S. 740, 31 L./. Q. B. 113, 6 L. T. 466.— Overruled in Ashenden v. London, B. & S. C. R. Co.. 5 Ex. D. 190, 42 L. T. 586, 28 W, R. 511. 44 J. P. 203. If a carrier gives a receipt for a dog which is afterwards lost, it cannot, when sued, set up as a defense that the dog was not prop- erly secured when delivered to it. Stuart v. Crawley, 2 Stark, 323.— Distinguished in Richardson v. North Eastern R. Co., L. R. 7 C. P. 75, 41 L. J. C. P. 60, 26 L. T. 131, 20 W. R. 461. * Carrier not liable at common law for refus- ing to carry dogs, see note, 57 Am. Rep. 24. CAHklAOb; OF LIVE STOCK, 117-119. 791 DOGS. iiij'iry.*— any is liiihlc is carricfi ny as "Iiuk- ■fiitn is piiirj 'f; V. H,xntti' 12 Am. Ky, Pacific K. I'itli him on the condiic- fc-car, niav nipany for affe-niaster union witii- , anrl wiiicli id a rule of carrying' of dinthebaj,'- jiiKC-master I defense to vn that the otice of it. Higdon, 52 1.286. lo.V,;. in §7 of the 854. Har- Co., 6 /iir. J^i'. 122. 8 / in 8 /ur. anal Traffic i where the ! neRlfct or OSS of the Jenial, and ility by the V. London, ,&Jur. A'. T. 466.— idon, B. & T. 586, 28 dog which I sued, set not prop- Stuart V. MSHED IN o.. L. R. 7 T. 131, 20 > for refus- EH. 24. If a railway company fastens a dog de- livered to it for carriage by the means fur- nished by the owner himself, which at the time appeared sufficient, it is not liable if the dog yets lost and is killed. Richardson V. North Eastern R. Co. L. R. 7 C. l\ 75, 41 /, /. C. P. 60. 26 L. T, 131, 21; ft'. R, 461. 117. Liniitiiig the llublllty. — A re({uiation of a railway company that it will only be liable for loss of dogs transported, or for injury thereto, in the sum of 1^2, unless a higher valuation be placed upon the animal, and a charge of 5 per cent thereon be paid additional, is unreasonable, and will not protect the company where a loss, resulting from its negligence, exceeds /2. Dickson v. Great Northern R. Co., 28 Am. * relieve company from duty to care for stock. —'sFuing a pass to the owner of live stock shipped, or to his servant, so that he may accompany them, does not relieve the car- rier from the duty of properly caring for them. Feinherg v. Delaware, L. - erty or for any delay that the owner migh: sustain during transportation. Held, that these conditions only referred to any in- juries that might occur during transpor- tation, and did not apply to damages result- ing from a failure to furnish cars. Hast- ings V. New York, O. &> VV. R. Co., 25 N. V. S. R. 249, 53 Hun 638, 3 Silv. Sup. 422,6 iV. Y. Supp. 836. 123. Right to stop at intermediate point. — The right of a person to travel on a drover's pass is not affected by his in't-n- tion to stop at an intermediate point. He is entitled to travel to that point on his pass. Graham v. Pacific R. Co., 66 Mo. 536. 124. Damages for ejection of drover on return trip.— One who has shipped live stock and is entitled to return on a drover's pass may recover damages for being wrongfully ejected from the train, although the conductor used no physical force, and acted under an honest misunder- standing as to plaintiff's right to travel on the pass. Graham v. Pacific R. Co., 66 Mo. 536. 2. Personal Injuries.* 125. Persons so travelling are pas- sengers. — A person travelling in a railroad train on a drover's pass is a passenger, and is under the same obligations to conform to the general rules and regulations of the company as if he had bought a ticket. Little Rock 6- Ft. S. R. Co. v. Miles, 13 Am. &* Eng. R. Cas. 10, 40 Ark. 298, 48 Am. Rep. 10. Where a person is travelling in a caboose car in charge of stock and furniture, and an entry in reference to him is made on the ay-bill by the assistant superintendent " as a man in charge," he is a passenger and is entitled to all the rights and remedies of * Liability of company to freight-shipper who is riding free, see note, 2 L, R. A. 166. iti CARRIAGE OF LlVli STOCK, 126. 793 thout paying but he is en- nlysuch sum oneys neces- re and hotel irnational &^ r. Civ. App. to furnish ned, among pany should incesforany ige to proji- •wner mighi Held, that to any in- g transpor- lages result- ars. Hast- Co., 25 .V. Sup. 422,6 rmediute travel on his intr.n- poinc. He Jnt on his (>6Mo. 536. ction of e who has 1 to return r damages 1 the train, 3 physical misunder- travel on To., 66 Mo. are pas- a railroad ;nger, and onform to IS of the a ticket, w, 13 Am. 3, 48 Am. i. caboose e, and an e on the ntendent nger and tiedies of ipper who a passenger on a freight train, and he may recover for injuries. Indianapolis, B. &* W. R. Co. V. Beaver, 41 Ind. 493.— Distin- guished IN Ohio & M. R. Co. V. Dickerson, 59 Ind. 317. A drover transported over a railroad on a pass, for the purpose of taking care of his stock on the train, is a passenger, not a fellow-servant with the servants of the com- pany, and the company cannot stipulate for exemption from liability for injuries to him caused by its negligence. Carroll v. Mis- souri Pac. R. Co., 26 Am. Eng. R. Cas. 61, 123 ///. 162, 14 M. E. Rep. 197. By contract it was stipulated that the shipper of stock " or his agent or agents in charge of the stock should ride upon the freight train upon which the stock was be- ing shipped." The shipper and one servant entered the car, and upon an objection being made that both could not ride free, the shipper informed the conductor that the employe could be put off, but no further objection was made. The shipper was injured. Held, that he was a passenger, and not a trespasser, by reason of having the employe on the train. Missouri Pac. R. Co. V. Aiken, 71 Tex. 373, 9 S. W. Rep. 437. 126. Care and (!uty required from the company.* — (i) General ride stated. — A company whicii charges for the transpor- tation of cattle, but permits the shipper to travel on a free pass upon the cars to take care of the cattle, is a common carrier for hire, as to both passenger and cattle. Maslin v. Baltimore S^CR. Co., 14 IV. Va. 180. Where a person is travelling on a freight car in charge of stock, under such condi- tions as to make him a passenger for hire, he is entitled to the same care as any other passenger on a freight train. He only as- sumes the risks incident to such a mode of travel, and the company will be liable to him for its own negligence or the negligence of its servants resulting in personal injuries, or will be liable to his next of kin if death results. ^Missouri Pac. R. Co. v. Ivy, yj Am. » St. P. R. Co, V. Carpenter, 56 Fed. Rep. 451. (2) Its Extent and Limits. — Notwith- standing a stipulation in a drover's ticket that he assumed certain risks of per- sonal injury, still the company owed him, as a passenger, due diligence in protecting him from harm. Pitcher v. Lake Shore &• M. S. R. Co., 40 N. V. S. R. 896, 61 Hun 623, 16 A^. Y. Supp. 62 ; affirmed in 137 A'. Y. 568, mem., 50 N. Y. S. R. 943, 33 A'^. E. Rep. 339- If a conductor of a railway train receives on his train minors, knowing that they are travelling, under a " drover's pass," as as- sistant to a drover, under a pass which contained a provision that minors should not be permitted to travel as assistants under such a pass, the minors are entitled to all the rights, as against the company, for injuries received through the negligence of its servants, that any other passenger would have. Texas &* P. R. Co. v. Garcia, 21 Atn. &* Eng. R. Cas. 384, 62 Tex. 285. A contract for the shipment of cattle provided that the owner should send a hand upc .1 the train to look after the cattle and that such hand should be regarded as an em- ploy6 of the carrier, and should assume all the risks of one. During the transportation the hand was killed by a collision. Jle/d, in an action by uis next of kin, that such em- ploye was a passenger for hire, and was en- titled to the care due to any other passenger upon a freight train ; and that the company was liable for negligence resulting in his death. Missouri Pac. R. Co. v. Ivy, 37 Am. &* Eng. R. Cas. 46, 7 1 Tex. 409, i L. R. A. 500, 95. W. Rep. 346. The owner of a horse shipped in a box- car, the doors of which could only be fastened from the outside, and who is inside the car with the horse, has a right to expect that the conductor of the train will see that the door of the car is closed and properly fast- ened before the train is started. Lavoie V. Queen, 3 Can. Exch. 96. Where a carrier sends a person with a train manned by its employes, which will pass over other lines, to attend to unloading and returning the cars, such person is an employ^ of the first company, and the only obligation a latter company is under is to furnish him a safe track, and if it fails to do this and he is killed by reason of a defective track, it is liable. Killian v. Augusta &* K. R. Co., 79 Ga. 234, 45. E. Rep. 165. The shipper of live stock travelling on a freight train with his stock, though not pay- ing directly for his fare, is a passenger to whom there is due all the diligence of the railroad to protect him from harm ; but he is not entitled to the same facilities for get- ting on and off as are persons travelling on passenger trains ; and no negligence can be imputed to the company for omission to erect stations or platforms at the places of departure or arrival of such trains. Pitcher v. Lake Shore 6- M. S. R. Co., 28 A^. Y. S. R. 647, 8 A^. Y. Supp. 389. (3) Illustrations. — Plaintiff had a horse shipped with others belonging to a third party, but all were shipped in the name of such third party. A printed rule of the company provided that only one person should go free with stock, and the agent, being applied to, told such third party that if plaintiff went he would have to pay fare. Being hurried after com- pleting the loading of the stock, plaintiff had not time to procure a ticket, but entered the car, intending to pay his fare, but be- fore he had paid the train was negligently run into and he was injured. Held, that the company was not liable. The intention of plaintiff to pay his fare and his good faith in the matter were immaterial. No contract relation existed between him and the company. Gardner v. New Haven &• N. Co., 18 Am. &* Eng. R. Cas. 170, 51 Conn. 143, 50 /^w Rep. 12. At M. plaintiff delivered to defendant a car in which was his horse, some furniture, and other proptrty, to be transported over its line to S., under a contract by which he agreed to load, unload, and reload, and to feed, water, and attend the stock at his own expense and risk while at the company's stock-yards or on the cars ; and he assumed the duty of securely placing the stock in the cars, and keeping the. same securely locked and fastened, so as to prevent the escape of stock. The car arrived at S. in the night. The plaintiff left the car for a few minutes, and, on its being placed on a side-track, returned to it, and lay down. I' CARRIAGli OF LIVE STOCK, 127, 138. 796 to unloading )erson is an ind the only under is to it fails to do if a defective Augusta &* 'P. i6s. irelling on a igh not pay- >assenger to ence of the arm ; but he ties for get- ravelling on ;ence can be omission to he places of ns. P'tcher \ N. Y. S. R. ad a horse to a third the name ted rule of only one stock, and told such k he would d after com- )ck, plaintiff , but entered fare, but be- negligently Held, that ie intention id his good iterial. No ;n him and ' Haven &<• 70, 51 Conn. lefendant a i furniture, )orted over y which he sad, and to at his own company's lie assumed e stock in le securely »revent the :d at S. in s car for a ilaced on a lay down. Soon after he was injured by an engine run- ning against the car. Held, that, although not then a passenger, yet, if prudent atten- tion to his horse rendered it proper for him to be in the car (and of that the jury is to judge), he was rightfully there, and that de- fendant owed him a duty of care to avoid in- juring him. Orcutt v. Northern Pac. R. Co., 45 Minn. 368, 47 A^ W. Rep. 1068. Certain horses and goods were shipped in a box-car, and plaintiff was employed by the owner to accompany them to take care of the property. While the train was lying at the end of a division where the conductor had left the train, after having, without au- thority, collected fare for the whole distance, plaintiff entered the car without the knowl- edge of the employ6s who would have charge of the train from that point on, and who had no knowledge that he was in it, and about the time of starting locked it up, and after it was started plaintiff was injured by fire before he could escape from the car. Held, that the mere fact that the first conductor collected a through fare would not charge the employds of the train at the time of the injury with knowledge that plaintiff was in the car. Jenkins v. Chicago, M, &» St. P. R. Co., 41 IVis. 112.— Following Betts v. Farmers' L. & T. Co.. 21 Wis. 81. 127. Validity of contract to as- sume all risks."' — It is competent for a common carrier of live stock to restrict its liability for injuries to the owner who travels on a drover's pass to such as result from recklessness, wilfulness, or gross neg- ligence. Boswell V. Hudson River R. Co., 10 Abb. Pr. {N. V.) 442, 5 Bosw. 699.— Re- viewing Weed V. Panama R. Co., 5 Duer 193. 17 N. Y. 362. A contract by a shipper of live stock that, in consideration of a free pass for himself over the road he v/ould assume all risks of loss or damage to the stock, except such as might be caused by collision or running off the track, was neither unreasonable nor contrary to public policy. Georgia R. Co. V. Spears, 66 Ga. 485.— Quoted in Georgia R. Co. V. Beatie, 66 Ga. 438,42 Am. Rep. 75. Where a cattle-dealer accompanies his cattle, under a contract providing that they are shipped at reduced rate"!, and there is no independent consideration for the con- veyance of himself, he is bound by a pro- vision that he shall travel at his " own risk * See also ante, 70, 7 1. of personal injury from whatever cause." Bissell V. Nexv York C. R. Co.. 25 A^. Y. 442 ; rei'ersing 29 Barb. 602. It seems, if a shipper of cattle who travels on the train with them pays the full rates, a provision in the contract that he shall travel at his own risk of personal injury is with- out consideration, and therefore not bind- ing. Bissell V. New York C. R. Co., 25 N. Y. 442 ; reversing 29 Barb. 602. A stipulation in a contract for the car- riage of live stock in providing for the transportation also of the owner, but ex- empting the company from all liability for negligence, is against the policy of the law, and constitutes no defense to an action to recover for personal injuries to the shipper. Cleveland, P. &* A. R. Co. v. Curran, 19 Ohio St. I.— Approving Pennsylvania R. Co. V. Henderson. 51 Pa. St. 315. Disap- proving Bissell V. New York C. R. Co., 25 N. Y. 442. Quoting Philadelphia & R. R. Co. V. Derby, 14 How. ,U. S.) 486.— Ap- proved IN Atchison & N. R. Co. v. Wash- burn, 5 Neb. 117. Not followed in Gris- wold V. New York & N. E. R. Co., 26 Am. & Eng. R. Cas. 280, 53 Conn. 371, 55 Am. Rep. 115. A drover travelling on a freight train for the pupose of taking care of his stock on the train, for which stock he paid freight, received from the railroad company a ticket called a " stock pass," with an indorsement signed by him as follows : " In consideration of receiving this ticket I voluntarily as- sume all risk of accidents, and expressly agree that the company shall not be liable, under any circumstances, whether by negli- gence of their agents or otherwise, for any injury to my person or for any loss or injury to my property ; and I agree that, as for me, in the use of this ticket, I will not consider the company as common carriers, or liable to me as such." In an action for damages for injury to the person of the drover, caused by the negligent act of the railroad com- pany — held, (!) that the agreement was in- valid as a defense to said action ; (2) that the stock-drover was a passenger for hire, and was not a gratuitous passenger. Ohio &* M. R. Co. V. Selby, 47 Ind. 471, 8 Am. Ry. Rep. 177.— Approving Louisville, C. & L R. Co. V. Hedger, 9 Bush (Ky.) 645. Following New York C. R. Co. v. Lock- wood, 17 Wall. (U. S.) 357. 128. Effect of condition that drover travels at his own risk.— (i) In Etig- WT I 796 CARRIAGE OF LIVE STOCK, 128. l^'-^ .'■'i'i land. — A condition in a ticket that persons in charge of cattle who travel free shall travel at their own risk applies to the whole of a through journey over connecting lines. //.:// v. Norih Eastern A'. Co., 33 L. T. 306, 23 W. R. 860, L. R. 10 Q. B. 437, 44 /,. /. Q. B. 164. Injury to a passenger after leaving a train in the course of his departure from the com- pany's premises is included within the con- dition of a free drover's ticket, by the terms of which he travels at his own risk. Gallin v. Lotidon Sf N. IV. R. Co., 23 IV. R. 308, 32 L. T. 550, 44 L.y. Q. B. 89, L. R. 10 Q. B. 212. A condition in a contract for the ship- ment of cattle allowing the drover in charge to travel free, providing he does so at his own risk, printed on the back of the invoice, with a direction on the face referring to the back for conditions of carriage, is a part of the written contract, and if a drover elects to travel free he is bound by the conditions and cannot recover for injuries. Duff v. Great Northern R. Co., L. R. 4 Ir. 178. A drover in charge of his cattle signed a contract with a railway company which stated that the cattle were to be conveyed upon the conditions mentioned upon the back of the invoice handed to him, and on the back of the invoice there was printed, amongst other conditions, the following: "That, as a drover is allowed to attend the cattle during transit, they will allow such drover to travel free of charge, upon condi- tion that he so travel at his own risk." On the face of the invoice there was nothing referring to passengers except the words " Drover in charge free," and at the foot of it were the words, " For conditions of car- riage, see back hereof." The drover did travel Iree, and in consequence of a collision occurring on the journey he received per- sonal injuries, for which he brought an ac- tion against the railway company. Held, that the condition allowing a drover in charge of his cattle to travel free, provided he did so at his own risk, was part of the written contract signed by the drover, and that as he had elected to travel free he was bound by the conditions and could not recover damages for the personal injuries sustained. Duff v. Great Northern R. Co., L. R. 4 /r. 178, 3 ^y. &* C. T. Cas. xiv. (2) In Ne^v York. — Defendant received of plaintifl at Newark a car-load of sheep to be transported to Albany under a contract which contained a clause by which plaintiff agreed to go or send some one with the sheep, " who should take all the risks of personal injury from whatever cause, whether of negligence of defendants, its agents, or otherwise." After the sheep were loaded, plaintiff, who was intending to accompany them, afid had a drover's pass, in passing by the tender to the engine, was injured by a stick of wood negligently thrown therefrom. Held, that, under the contract, defendant was exempted from liability. Poucher v. New York C. R. Co., 49 A^. Y. 263.— DIS- TINGUISHING Stinson v. New York C. R. Co., 32 N. Y. 333.— Reviewed in Blair v. Erie R. Co., 66 N. Y. 313. In an action for personal injuries the fact that plaintifl was riding on a drover's ticket containing a provision that he should ride in charge of the stock, but that if he should leave the caboose and pass along the train or track it should be at his own risk of per- sonal injury, does not relieve the company from liability, where he is told that the train will wait forty-five minutes at a station and he leaves it to get supper, and, returning be- fore the time is up, is injured while attempt- ing to get on the cars by a sudden movement of the train. Pitcher v. Lake Shore &• M. S, R. Co., 1 6 A^. Y. Supp. 62 ; affirmed in 137 A^. Y. 568, 33 N. E. Rep. 339. (3) In Pennsylvania. — A drover transport- ing live stock in the cars of a railroad com- pany, for which he paid freight, received a ticket to " pass the bearer in charge of his stock," on which was indorsed : "The person accepting this free ticket assumes all risks of accidents, and expressly agrees that the company shall not be liable under any cir- cumstances, whether by the negligence of their agents or otherwise, for au injury to the person or for any loss or injury to the per- sonal property of the person using this ticket." Held, that the drover was not a gratuitous but a paying passenger, and that the indorsement was no excuse for negli- gence. Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315.— Disapproving Wells v. New York C. R. Co.. 24 N. Y. 181 ; Perkins V. New York C. R. Co., 24 N. Y. 197 ; Smith V. New York C. R. Co., 24 N. Y. 222 ; Bissell V. New York C. R. Co. , 2 5 N. Y. 442. Quot- ing Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 468.— Approved in Rose v. Des Moines Valley R. Co., 39 Iowa 246; Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. I. Distinguished IN Kinney V. CARRIAGE OF LIVE STOCK, 129. 797 cliich plaintiff one with the the risics of :ause, whether its agents, or were loaded, :o accompany , in passing by injured by a wn therefrom, ct, defendant Poucher v. v. 263.— Dis- York C. R. ) IN Blair v. uries tht fact rover's ticicet e should ride ; if he should )ng the train I risk of per- ;he company hat the train \ station and eturning be- hile attempt- in movement Shore &» M. Hrmed in 137 er transport- ail road com- t, received a liarge of his "The person nes all risks !es that the der any c'lr- giigence of njuryto the to the per- using this was not a er, and that e for negli- Henderson, 3 Wells V. I ; Perkins 197; Smith 22; Bissell 12. QUOT- Derby, 14 IN Rose V. Iowa 246; Curran, 19 Kinney v. Central R. Co., 34 N. J. L. 513 ; affirming 32 N. J. L. 407. Not followed in Griswold V. New York & N. E. R. Co., 26 Am. & Eng. R. Cas. 280, 53 Conn. 371, 55 Am. Rep. 1 11;. 129. Bight to recover for personal injuries, generally. *—(i) When may re- cmer. — A shipper of cattle who travels as a passenger on the freight train with tiie cattle may recover from the carrier for per- sonal .iijuries caused by its negligence ; and the fact that the accident was due to a delay which was at his request to enable him to get his stock loaded will not prevent such recovery. Flinn v. Philadelphia, IV. &* B. R. Co., I Houst. (Z?^/.) 469.— Not followed IN Griswold v. New York & N. E. R. Co., 26 Am. & Eng. R. Cas. 280, 53 Conn. 371. 55 Am. Rep. 115. Where a party having the care of stock in a freight -car, requ I ring his aUention,attempted to enter the car with the sanction of the conductor, and under his assurance that it would be safe, and that he would have ample time to do so before the train moved, and was injured by the sudden and unex- pected movement of the train while in the act of entering the cas— held, that the com- pany was liable. Olson v. St. Paul &* D. R. Co., 47 Am. «S- Eng. R. Cas. S73. 4S Minn. 536, 48 JV. W. Rep. 445. The action of a conductor who, on a dark night, promised to transfer a shipper of stock from his freight train going east to . one going west, at a regular station which was presumably a safe place, but instead transferred him at a different and danger- ous place, without notifying him of the change or warning him of the danger, the shipper being injured while passing hur- riedly from one train to the other by falling into a deep water-way, constitutes gross negligence, and the railroad company is liable for the injury. Griffith v. Missouri Pac. R. Co., 98 Mo. 168, 1 1 5. W. Rep. 559.— Following McGee v. Missouri Pac. R. Co., 92 Mo. 208. A shipper of hogs entered into a contract * Liability of company for injuries to drovers riding on trains with stock, see note, 48 Am. Rep. 15. Liability of company for injuries to persons riding on complimentary passes to stock-drov- ers, express agents, newsboys, and the like, see note, 2i L. R. A. 794. Liability of company for injury to stock- shipper injured by falling into water-way while passing from one train to another in the dark, see 39 Am. & Eng. R. Cas. 479, absir. reciting that, in consideration of reduced rates he should accompany the animals and take charge of them, but should do so at his own risk of personal injury from what- ever cause. One sum was paid, which seemed to be intended as compensation both for Ills transportation and for that of the hogs. While en route the owner was killed by reason of using an unsafe car. Held, that the company was liable in damages. Smith V. New York C. R. Co., 24 A'. V. 222; affirming 29 Barb. 132. — APPLYING Wells V. Steam Nav. Co., 8 N. Y. 375. Re- viewing Sager v. Portsmouth R. Co., 31 Me. 228; New Jersey Sieam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 383. — Ap- proved in New York C. R. Co. w. Lock wood, 17 Wall. (U. S.) 357. Disapproved in Penn- sylvania R. Co. V. Henderson, 51 Pa. St. 315. Followed in Stinson v. New York C. R. Co., 32 N. Y. 333. Reviewed in Blair v. Erie R. Co., 66 N. Y. 313. (2) Who may not recover. — Where there is no evidence to show a defect in the construction or condition of a sliding- door in a stock-car, the company is not liable for an injury to a shipper of stock who has a right to open the door, in ac- companying and caring for the stock, but who is injured by its becoming detached and falling on him. Kleimenhagen v. Chi- cago, M. O. R. Co. v. Elliott, 58 Am. s from Char- ^ the conduc- lat there the that he would f a stock-car inville about ne moments, vith a brake- 1 the caboose n when to get idso. Shortly ly. When he ! platform of id some one ntifldid.and n fifteen or Reaching I " ladder to in motion. ^ his valise F> of the car, ground and tiff was not utory negli- have the trol of him d in a rail- ed under a the carrier, ust sue for *te ulf, C. 6- S. F. R. Co. V. Wright, i Tex. Civ. App. 402, 21 5. W. Rep. 80.— Reviewing Gulf, C. & S. F. R. Co. V. McCarty, 82 Tex. 608. (3) In Wisconsin.— In an action to re- cover damages occasioned by the defend- ant's failure to furnish cars for the shipment of stock at the time agreed, and by a failure to transport such stock with reasonable diligence, the complaint should show what part of the total delay was occasioned by the failure to furnish cars, and what part occurred «?« route. Richardson v. Chicago &» N.W R. Co., 16 Am. &» Eng. R. Cas. 172, 58 Wis. 534. 17 A^. W. Rep. 399. But where the complaint shows that the delay in furnishing cars was "about four extent of |6 and is sutii- icc to show (I, and I he iction that. lumber of yearlings, such (leaiii "<1 for the Missouri «'-»■■ J07. 14 r (htmages liilc travel- complaint ose for the e, the train ind he was of a car ; and that ductor he nd in at- )rn the top averments n why lie d as to his request of exception, {Tex.) 41 '■ i^v/. 833- ecover for ransporla- t up under :t of shi|)- ability for ..ii. of .. (fidavit, 65. liulf. Tex. Civ. SVIEWING ^, 82 Tex. Jn to re- 5 defend- shipment ra failure :asonable low what ioned by fhat part Chicago R. Cas. 9- that the lout four CARRIAGE OF I.IVH STOCK, i;»0-141. 805 days," and that the total delay was "about fourdays," the complaint is sufficiently defi- nite and certain, kic/iariison v. Chicago &* N. W. H. Co., 16 Am. &* Eug. li. Cas. 172. 58 Wis. 534, 17 N. IV. Rep. 399. Where several acts of negligence are charged, it is proper that the defendant should be informed what damages result from each act. So where a company is sued for damages to live stock, and dam- ages are claimed both for a failure to furnish cars and for the negligent manner of run- ning the train, the complaint should set out the damages resulting from each of said acts. Ayrts V. Chicago &* N. W. R. Co., 16 Am. St. L. R. Co. V, Racer, 5 Ind. App. 209, 31 N. E. Rep. 853. When sued for the loss of live stock, it is competent for the carrier to plead by way of special defense, in connection with the general issue, a special contract with the shipper, whereby he was to accompany the stock and care for it, and that he did so, but failed to take proper care, and the stock was lost in consequence thereof; and the fact that the action is in tort does not prevent such defense being pleaded. Oxley v. St. Louis, K. C. &' N. R. Co., 65 Mo. 629.— Distin- guishing Rice V. Kansar, Pac. R. Co., 63 Mo. 314. Reviewing Reade v. St. Louis, K. C. & N. R. Co., 60 Mo. 199. in an action by a shipper of live stock tt recover damages thereto, the company pleaded specially a stipulation in the con- tract of shipment, to the effect that the shipper should give notice in writing of his claim for damages to some agent of the company as a condition precedent to his right to recover damages, and that the com- pany had an agent at the place of destina- tion to which notice could have been given ; Out the plea did not name the agent or where he could be found, nor allege thai the shipper knew the fact thai the company had such agent. Held, that the plea was insuffi- cient. Gulf, C. &> S. r. R. Co. V. Wilhelm, 3 Tex. App. (Civ. Cas.) 558.— Following Missouri Pac. R. Co. v. Harris, 67 Tex. 166. 142. Iteplicatiuii.— Where a company is sued for injuries to live stock during transportation, and sets up a special agree- ment, to the effect that the owner was to give notice within forty days of his chiim for injuries as a condition precedent to the right to sue, the effect of such defense is avoided by a replication showing that with- in three days after the injury the defend- ant's agent pi omised to pay the damages, if plaintiff would put them in a reasonable sum; that he was misled by various promises to pay until after the lapse of the forty days ; and that during that time lie acted under the belief that defendant meant to pay with- out suit. Gulf, C. ecial agrt-e- ^ner was to f his claim dent to ilie defense is that wiiii- he defend- damages, if reasonable JS promises forty days; cted under > pay with- Co. V. Tra- S68, 18 S. QUOTING rb. (N. Y.) ' City Ins. =". & M. I. -(I) Valid the traiis- d contains shipper, in ■at tie will d his fail- Jtes to an )t respon- Rep. 649. ved from lie shows 5 of trans- Be of care required, ier liable were in- S- R. R. y. S. R. ric C. R. certain >Ie for a mid not of that lie, and for the 3f market of the next day. Missouri Pac. R. Co. V. Paine, i Tex. Civ, App. 621, 21 S. W. Rep. 78. In an action for damages for keeping horses for a number of days upon a plank floor after their arrival at the destination to which they had been shipped, evidence is admissible of a custom to keep horses upon plank floors in that locality, and that it is impracticable to keep them upon earth floors. Moses v. Port Townsend S. R. Co., S IVasA. 595. 32 Pac. Rep. 488. (2) Invalid defense. — Where a company is sued for injuries to cattle by reason of de- fects in the cars, it cannot defend on the ground that the cars furnished were such as had always been used by it in carrying cat- tle. In such cases it is competent to show tlie kind of cars in general use by railroads, but not the usage of the defendant road in furnishing cars. Leonard v. Fitchburg R. Co., 28 Am. &* Eng. R. Cas. 105, 143 Mass. 307, 9 A^. E. Rep. 667. A railroad company cannot excuse a fail- ure to forward stock promptly on the ground that it had not the proper appliances for doing so. Tucker v. Pacific R. Co., 50 Mo. 385, 3 Am. Ry. Rep. 291.— FOLLOWED IN Faulkner v. South. Pac. R. Co., 51 Mo. 31 1. A written statement given by the shipper of live stock to the carrier, admitting the stock to be in good condition, will not estop him from claiming damages fen* injuries thereto, on the ground that the giving of such state- ment induced the carrier to forego an ex- amination at the point of destination, where there is no evidence that it had that effect and that by reason of it no examination was made. St. Louis, A. &' T. R. Co. v. Turner, I Tex. Civ. App. 625, 20 S. W. Rep. 1008. A company cannot plead ignorance of the existence of a contract of shipment made by letters and recognized as such by it, ow the ground that it was misled by the prom- ise of the shipper to make out a contract at a specified time, where, after notice by the latter to obtain the cars which he was to furnish, it fails unreasonably so to do, so as to relieve it from liability in dam- ages for the consequences of its delay. Lawrence v. Milwaukee, L. S. &• W. R. Co., 84 Wis. ^rj, 54 N. IV. Rep. 797. 144. What evidence is admissible. — (i) Generally. — Where the special con- tract for the shipment of a car-load of stock provided that the plaintiff could not recover exceeding a certnin amount for each mule. evidence of the real value (whatever it might be) of one of them which was injured was admissible for the purpose of showing that this value was at least equal to the amount specifled in the contract. Georgia R. •! 32 Minn. ders V, Chi- Minn. 193, )mpetent to transporta- es based on n delivered, on the cars, her and the on the cars 'erdict of a 'und in ac- llinois C. R. ules were 1 for dam- to escape he alleged ing hands that it was s, who was dge of the how many drive 250 iimstances. '• 453- r damages ing trans- Jve, in the ^ the tnare assuming t, to prove '. «** O. Ji. lere there r and the live stock ight-book ig a state- y-bilJ, are prove the S. E. R, :arry live ne, in an delay, a :ting line " Mr. S. rites that : 29th of : defend- an hour more on lay, they fiof Oc- tober," is admissible as evidence of unrea- sonable delay. Ruddy v. Midland G. W. R. Co., L. R. 8 Tr. 224. 145. What evidence is inadmis- sible. — (i) Generally. — The company in- troduced a witness to prove that the plain- tiff had used the stock-passes of the company, and then offered in evidence one of those blank passes, on the back of which was a statement that the owner of stock should feed and take care of them at his own expense and risk, and that he assumed all risk of injury that the animals might do themselves, or that might arise from the delay of trains or otherwise. Held, that the evidence did not tend to prove the ex- istence of a pleaded usage to carry poultry only when owner went with it *o see that the coops were kept properly righted, and that it was properly rejected. Evansville &* C. R. Co. V. Young', 28 /nd. 516. A shipper of live stock sued a company for damages, alleging as negligence that the company flrst loaded the stock in unsafe cars, which necessitated their reloading, which was done in a negligent manner. Under the terms of the contract of ship- ment the owner was to load and unload at his own risk. He introduced evidence to show that the car to which the stock were transferred was not properly provided with bedding, //eld, that plain /ff had assumed the risk, if bedding the ca'ti* was included in the loading; and if not, then a failure to properly bed did not come within the alle- gations of the complaint ; and that in either event the evidence was irrelevant. Atchison V. Chicago, R. /. &• P. R. Co., 80 Mo. 213. Where a company is sued for damages for a failure to furnish cars and to re- ceive and transport cattle, the damages being claimed for cost of keeping them, and for loss of a market, evidence on the part of the company that plaintiff had con- tracted for the sale of the cattle at their destination, and that they were refused be- cause not such as had been represented, is irrelevant, and therefore improper. Gulf, C. &* S. F. R. Co., V. McCorquodale, 35 Am. &* Ens^. R. Cas. 653, 71 Tex. 41, 9 5. IV. Rep. 80. Where a carrier is sued for injuries to horses shipped, evidence of injuries to other horses not sued for is calculated to prejudice the jury, and its admission is re- versible error. Missouri Pac. R. Co. v. Smith, 84 Ttx. 348, 19 S. IV. Rep. 509. (2) Depreciation in price — Loss of profits. — In an action for injuries to a jack during transportation, evidence of uncertain prof- its to have been made by letting the jack to mares is improperly admitted. Chicago, B. Gf Q. R. Co. V. Hale, 83 ///. 360. Wh^re plaintiff seeks damages against defendant for breach of a contract to re- ceive and transport cattle upon a specified day, caused by cost of keeping the cattle for the additional period, and by depreci- ation in the market price, it is incompetent for defendant to show that the depreciation in price was caused by failure of the cattle to conform to the standard, and not by the delay in shipment. Gulf, C. &* S. F. R. Co. V. McCorquodale, 35 Atn. &* Eng. R. Cas. 653, 71 Tex. 41, 9 5. W. Rep. 80. (3) Custom. — Evidence to prove a custom among railroads not to receive live stock unless the shipper agrees to hold the rail- road harmless for all original delays in tak- ing up freight is incompetent, as such a custom would not be necessary if the law held the railroad harmless for such delays, and it could not prevail over the law if the latter did not hold the railroad harmless. Missouri Pac. R. Co. v. Fagan, 35 Am. &» Eng. R. Cas. 666, 72 Tex. 127, 9 S. W. Rep. 749- In an action for injury to stock caused by the negligence of the defendant in delaying their transportation, defendant's counsel asked a witness of the plaintiff what was the custom in such cases as to some one going along with the stock. It did not ap- pear that, even if it was the duty of the shipper to accompany the stock, the per- formance of such duty would have avoided the injury, or that the remission of such duty contributed thereto. Held, that an objection to the question was properly sup- ported, since the fact sought to be elicited was not relevant. Richmond &* D. R. Co. v. Trousdale, (Ala.) 55 Am. &»Eng. R. Cas. 400, 13 So. Rep. 23. (4) Hearsay — Res gestce. — Where, in an action against a railroad company for the loss of a jack in transportation, it was proved that a tramp was found in the car containing the jack, with a stick in his hand, and that the jack was afterwards found dead in the car, with blood running from its mouth and nose, it was incompetent to allow plain- tiff to prove a statement made by the tramp in the conductor's presence, soon after his removal from the car: "If it had not been UlU CARRIAGE OF LIVE STOCK, 140. m .M for lopping them mules over the head I would have froze," as such statement is not a part of the res ^esta. St. Louis, I. M. &* S. Ji. Co. V. lVtfa4;/y, 35 A//t. &- Eug, R. Cas. A-.) . Rep. 854. there was rtation of leedlessly :rent sta- ised and train on cause of >ss negli- tly estab- S. A. R. 98.11 S. udgment car-load of hogs, claimed by the shipper to have been consigned to a third party without his permission, reversed on the weight of evi- dence. Chicago &» A. R. Co. v. Purvines, 58 ///. 38, 10 Am. Ry. Rep. 369. Where live stock are carried under a special contract, providing that the shipper shall have the care of the stock while in trans- portation, and shall unload, feed, and water the animals at his own risk and expense, the shipper cannot recover for losses occa- sioned to said stock solely upon evidence of a failure to deliver the same. Terre Haute &* L. R. Co. v. Sherwood, 55 Am. &* Eng. R. Cas. 326, 132 /«iiir a fence ilure to keep )air, whereby :scaped from the cars was was to carry or can a re- predicated vas not held cattle could • C. A\ Co. V. Jiep. 163. ainst a com- cattle trans- lipped under the carrier s of its own rier, which it ed that the end of the leered to the changed to •act witli the ed by reason at there was gations and Lv. Thomas, ^^«' 343.3 on that the :ration the itock at the ■ time when \ had they ict.and the averred in ormed the le of mak- ; were de- But the art of the e facts and ito admit recovery, petition. £. H. Co., sued for :rment is 1 to carry »e no re- \i bill of jury was ing line. tyfield, 4 'iefi. 503. )ie value of a calf that had been carried by the com- pany is nut supported by the evidence, where it is shown that the calf did not die until 10 days after its delivery, and there was no evidence to show any lack of care in feeding and watering or otherwise tend- ing while in the hands of the company ; that it was sick when delivered to the com- pany, and that there was nothing to show directly that its death was not due to natural causes. Missouri Pac. R. Co. v. Heath, (Tex.) 18 5. W. Rep. ^77. (2) Immaterial. — A request to charge the jury that, inasmuch as the declaration charged the defendant merely as a common carrier, but the proof was that the stock was shipped under a special contract, the proof did not support the declaration, and that the verdict must be for the defendant, was properly denied. Couplandv. Housa- tonic R. Co., 55 Am. &* Eng. R. Cas. 380, 61 Conn. 531, 23 Atl. Rep. 870. If the live stock delivered to the carrier consisted of both cattle and hogs, it is not a material variance that they are described in the written contract as one car-load of cattle, the action being treated as one of tort, and not as founded upon the contract. Central R. Co. v. Pickett, 87 Ca. 734, 13 S. E. Rep. 750. The averment of a declaration in a suit for the value of hogs, which were shipped on defendant's railroad, and died through the fault of defendant, was, that the train was stopped and was permitted to stand for a long space of time in a piece of timber, where the air did not circulate. The evidence showed that the train did stop in a piece of timber, but it further showed that it was in Vt cut on the road as well as the timber. Held, that there was no variance. Toledo, W. ** W. R. Co. v. Thompson, 71 ///. 434. 151. What iustriictious are proper. — An instruction to the jury that " the evi- dence is undisputed that a reasonable time for the delivery of said animals, after the delivery of the same to the railroad, is ten or twelve hours, and if their being kept on the car for a longer time by the defendant caused them to be vicious and to injure one another, the defendant is liable to answer in damage for such injury," was not incon- sistent with testimony that " usually stock in shipping go through very nicely in ten, fifteen, or twenty hours." Richmond &» D. R. Co. v. Trousdale, {Ala.) 55 Am. &* Eng. R. Cas. 400, 13 So. Rep. 23. An instruction that " if the defendant, having undertaken to deliver the stock, failed to deliver it in a safe condition with- in a reasonable time, the presumption of negligence arises, and the burden of proof is shifted to the defendant to excuse itself from negligence," was nut erroneous as assuming or declaring that the stock was in a sound condition when shipped, and thut sucii con- dition was not the result of negligent trans- portation. Richmond &• D. R. Co. v. Trous- dale, {Ala.) 55 Aph. &* Eng. R. Cas. 400, 13 So. Rep. 23. An instruction that the responsibility of a railroad continued from the time stock were intrusted to it for transportation until the same reached their destination, in a suit to recover for a loss and injury to the ani- mals, is not open to the objection that it asserts an absolute liability, without regard to any defense set up by defendant. McCol- lom v. Indianapolis &* St. L. R. Co., 94 ///. 534- The court, after instructing as to the duty of the carrier and his liability and the bur- den of proof, charged that if the shipment of the stock was unable to proceed by reason of a storm and extreme cold, and defendant unloaded the cattle without the consent of the plaintiffs and placed tliem in yaros insufficient in strength or size to ordinarily prevent cattle from escaping therefrom, and they escaped therefrom without any fault or negligence on the part of the plaintiffs; and if, in placing the stock in insufficient yards, the defendant did not exercise reasonable care and prudence, and the escaping cattle were lost and perished without plaintiffs' contributory negligence, a verdict for the plaintiffs must be returned ; but that if the cattle were in charge of one of the plaintiffs and were unloaded at his request, to be sheltered and fed, and he took charge of the same and placed them in the yards from which they escaped and per- ished, then the defendant would not be lia- ble ; and that if defendant was requested to place the cars of cattle next the coal-sheds and failed to comply with such request, its failure would not as a matter of law be neg- ligence; and that all the facts and circum- stances in evidence must be considered in determining the defendant's negligence — held, that the instruction was as favorable to the defendant as it had any right to claim, and that, although it might be errone- ous, it formed no ground for reversal. 814 CAKKIACJIi OF LIVE STOCK, 152. r% |l;-.« t// G. N, K. Co. V. Hynes, 3 Tex. Civ. App. 20, z\ S.W, Rep. 622. 154. Questions for tbe Jury.*— In an action to recover damages for not properly feeding, watering, and caring for stock dur- ing transportation, the company contended that the only contract of shipment was a special contract specifying that plaintiff should accompany the stock and attend to watering and feeding; while plaintiff de- nied this, and said that the only contract was the one contained in the bill of lading, except that there was an oral contract by which he was to have a ticket free. It ap- peared that plaintiff obtained a ticket at reduced rates, but rode on a passenger train. Held, that the question as to what the con- tract was, and the rights of the parties thereunder, should have been submitted to the jury. Cincinnati, N. O. &» T. P. R. Co. v. Disbrow, 76 Ga. 253. A company was sued for a delay in deliv- ering cattle in time for the market of a cer- tain day. After allowing for the ordinary delays of freight trains, it was doubtful whether, if there had been no special delay, the train would have arrived in time for the market of that day. The stock were deliv- ered in the evening and were ready for the market the next day. Held, that the ques- tion of the company's negligence as to delay was for the jury. Wabash, St. L. &* P. R. Co. V. AfcCasland, 11 ///. App. 491. * See also ante, 44. A train containing stock accompanied by the owner was delayed by water submerging the track, and tiie owner requested the con- ductor to place the cars in a position where he could unload and feed the stock, which he declined to do. The engine was disabled by running into the water, but it appeared that another engine could have been had 43 miles away, but the conductor failed to telegraph for n. Held, that there was no error in submitting to the jury the question whether it was not gross negligence for de- fendant to omit to send for the engine, if it could be had 43 miles distant. Pills v. Ne%v York C. R. Co., 3 Am. is V. Xew ) 543- he charges ama(;cs for !ath, is the of deslina- d til is is so rhile in the the point d its line. ohnston, 22 lla. 596, 51 ish suitable or fails to liable time, measure of e value of rival at the lue at same lould have . Nicholson, le measure )ver for in- to such as rival at the expense to • two days ^e accepted ding about recovered. «/, 16 Lea neasure of the value It and their applies to r delivered )n, and not ned by the n the point V. Nichol- , 61 Tex. ; part of a nares with :t in such if damages s hands is ^es, which e place of 'hich they een trans- ri Pac. R. TrtJ. 666, 72 Rep. 749. In assessing (liimaf;fs frir an injury to live stock wliicii iicccssilutcfl killing it, only the lift iinionnt which should have i)CL'n realized friim a sale of it, after reasonable iillowancc made for time and troiibk; required in ef- fecting the sale, should be deducted from the value of the stock. Dean v. Chicago &* N. IV. R. Co., 43 IVis. 305. Where race-horses are shipped, and some are killed and others injured, the measure (if damages, as to those killed, is not what the owner might have made by the horses on the track, but their reasonable market value in cash at the place where the loss oc- currcfl ; and as to those injured, the dam- ages are the actual loss which the owner sustains by reason of the injuries, which is to be determined by the jury from all the evi- dence and the facts and circumstances of the <;ase. Oniisby v. Union Pac. A'. Co., 2 Mc- Crary ( U. S.) 48, 4 /Vv/. A'f/>. 706. Where a shipper of cattle seeks to recover damages to cattle while being carried, and the issue is made as to whether the damage was caused by the negligence of the com- pany, an instruction states the law correctly which tells the jury that if plaintiff is en- titled to recover, the measure of damages is the difference between the value of the cat- tle as they were at and when they reached the place of destination and their value at the same place and time had they arrived in good condition ; but that, if they find that the cattle were not damaged by the company, or its agents, or employes, then they must find for the defendant. Galveston, //. &* S. A. R. Co. V.Johnson, (Tex.) 19 S. IV. Rep. 867. An instruction to the jury that the meas- ure of damages for injury to live stock was the difference in the market value of the stock if they had been delivered without delay and their market-value after delivery in an unsound condition was not erroneous, as declaring or assuming that the stock was injured by unreasonable delay in transporta- tion. Richmond &* D. R. Co. v. Trousdale, (Ala.) 55 Am. &* Eng. R. Cas. 400, 13 So. Rep. 23. (3) Under special contract. — The cause of action being the negligence which caused the killing of the horse, outside of the con- tract under which he was being transported, the plaintiff is entitled to recover, if at all, the full value of the animal, and is not lim- ited to the sum stated in the contract as the maximum for which the company would be I D. R. D.— 53.tt lialile in the event of Idss or injury ; though the contrail of alTreightnieiit, coiitiiining the limitation .i> to the liability for loss or damage, is admissible as evi(leiic<' on the (luestion of value. Louisville &» W R. Co. V. Kelsey. \x Am. fr' Lug. R. Cas. 584, 89 .lla. 287, 7 .So. A'f/>. (148. Where it appeared that there was aspei iai contract exempting defendant fiom liabiliiy for any loss by sulTocation <>f the hogs, and that several were sulToeatefl in the cars — //(•/(/, that, if this resulted from the negli- gence of defendant, plaintilT was entitled to recover for the loss, and that the measure of his recovery would be the dilfcrcnce in the v.iliie of ihe hogs when alive and when dead at the point (jf delivery. Stur^ron \. St. Louis, K. C. iiiot«' daiii- !!{;«'«•— Suit was brou^lil to recover dam- a^es (or tlie lireach of a verbal contract for till' transportation of cattle, and anionji the icins of daniafje was the value of liftceii head, which escaped during a stampede and wiiich were not recovered, the stampede bcinfj caused, as alleged, dnriny a delay in kc'pingthe cattle before shipment, by their gttiiiig hungry and lliirsty. //ld the cattle to pay the fine and costs. The owner then sued the rail- road company for damages, claiming that the sei. ure would not have taken place if the cattle had not been unloaded. Held, in the absence of anything to show that de- fendant was bound to continue the trans- portation without a change of cars, or that it knew that they were of the kind of cattle that it was unlawful to bring in, that it was not liable for the unloading, and that the damages sufTered by plaintifl were too re- mote to be recovered. McAlister v. Chi- cago, R, I. &* P. R. Co. 7 Am. (&«• lCng. R. Cas. 373, 74 Afo. 351.— Distinguishing Streetcr v. Horlock, 7 Moore 283. 158. LoHH of market— Decline in ^ prices.* — Where a cairier of live stock fails to transport them to the place of desti- nation in time for market on a certain day. *See also . South Carolina K.Co., 9 So. Car. 61. Kkvikwku in Wiston v. Grand Trunk K. Co., 54 Me. yjb.— Sangamon &* M. R. Co. V. Utnry, 14 ///. 156.— Distin- (iUlsiiKU in Priestly v. Northern I. & C. R. Co., 26 111. 2q(>.— Kent v. Hudson River R. Co., 22 Barb. (N. V.) 278.— Kkvikwino Wilson V. York. N. C. k 13. K. Co., 18 Eng. L. and Eq. 553.— Nor kollowku in Jones V. New York & E. R. Co.. 29 Barb. (N. Y.) 633 ; Kirkland v, Leary, 2 Sweeny (N. Y.) bn.-Gulf, C. &- S. J-'. R. Co. V. McCarty, 82 Tex. 608. 18 i". W. Rep. 716. /•■/. Worlli 6- D. C. R. Co. v. Greathouse, 49 ///;/. (&- Eng. R. Cas. 157. 82 Tex. 104. 17 S. IV. Rep. 834. Texas l\u. R. Co. v. Nich- olson, 2\ Am. St' Eng. R. Cas. 133.61 Tex. 491. Ring V. Woodbridge, -^^ F/. 565. Uiit evidence to show a decline in the market between the time of their arrival and th(! time when they were sold is not ad- missible, itlascock V. Chicago &' A. R. Co., G^ Afo. 589. — Followed in Armstrong z'. Mis.souri I'ac. R. Co.. 17 Mo. App. 403. Where it is sought to recover for the loss of hogs while in course of transportation, if it usually took twenty-four hours to get a car of hogs from the place ii I lie (lay and their vliicli tlicy yni/ Haven — yucjTi 1) Co., 9 So. 7'. Grand %ui>iion (3- — DlSTIN- n I & C. /aon Ki'vi'f KVIKWINC . 1 8 Eng. 'N Jones 29 Barb. 2 Sweeny A'. Co. V. />A 716. >eathouse, '-». 104, 17 0. V. AVf//- 3.61 7>.t. S65. ne in tlic ir arrival is not ad- ^. />'. Co., istrong V. App. 403. >r the loss rtation, if 5 to get a pment to logs were nt in the price of the next not be Illinois ^m. Ay. damages vc stock le stock market ntil Fri- arket in lay, the ige and lensc of ntil the < could can be expense of keeping beyond that d.iy. . I) res v. c//- cii^o &» X. If. A'. Co., 40 ,////. &* l''"ji' A', til*. 108, 75 //'/v. 215, 43 A'. //'. /('. 594- IffO. Dcturiuratioii in quality or C'Oiiditiuil.— Where the owner of live stock sues to recover damages for a delay in transportation, he is enliilcd to recover l)oth for a decline in the market and for extra shrinkage of the strjck caused by tiie delay. Stnrt^con v. .St. Louis, A". C. &^ A'. K. Ck, 65 Mo. 569.— Iu)i,i,()wr.l) IN Ann- strong 7'. Missouri I'ac. K. Co., 17 Mo. App. 4.0^. —liods V. Ctntral A'. Co., 87 (Jn. 463, 13 S. li. Rep. 711. The fact that cattle are allowed to stand for some time in the cars without foofi is a proper element of damages in an action against the carrier, where it was under cir- cumstances where the owner could not be expected to provide food. Illinois C. R. Co. V. W.aters, 41 ///. 73. Where live stock are shipped, and some are never delivered and others are de- livered in an injured condition, the measure of damages is the value of the animals not delivered at the jilacf! of destination and the actual damage incurred on .iccount of the injuries to the others. IWillinyiford v. Columhiti &• Ci. R. Co., 3c Am. i^ l'-»ii- R. Cas. 40, 26 .SV). Car. 258, 2 ^^ A". A'9- The general rule as to the measure of dam- ages for injuries sustained by cattle during transportation is the dilTercnce between their market value at the place of destina- tion, in the condition in which they are de- livered, and what would have been their market value if they had not been injured; but it only applies where cattle are shipped to be sold in the market, and not where they are intended to be kept by the own 25. Missouri I'm. R. Co. V. Russe/l, ( /«M.) 15 .V. //'. /up. 206. Where a railroad company lails u> trans- port with reasonable dispatch live stock delivered to it f(jr shipnient. and it ap- pears that the owner has been |)ut to ex- pense ill feeding the stock, and that the market has fallen, and that the stock, owing to driving and ex|>osure, have sliiunk in weight from 60 to 70 pounds, a vt-rdici for $134 will not be regarded as excessive dani- ag<'S. Illinois C. R. Co. v. Simmons, 49 ///. ^PP- 443- Where a r.iilway company fails to jirovide horse-boxes for the conveyance of horses for sale, pursuant to contract, and the owin r is compelled to send the horses by road, and they arrive in bad condition, and do not realize such prices as would otherwise have been obtained, the measure of damages in an action against the railway company is the deterior.ition winch the horses, if in ordi- nary condition and fit to make the journey, would havi- sufTered thereby, and the time and labor expended on the road, ll'aller V. Midland U. II'. R. (Ireland) Co., I.. R. 4 //•. 376 ; reversing I.. R. 1 //'. 520. lUO. lOvidciire on qiio.slioii of dam- a(;<'><> — Where hogs are shipped by rail from Illinois to Pittsburgh, and the freight is paid through, and some of them are lost en route, proof of their value at their destination may be considered by the juiy in hxing their value between the two places. Indian- apolis, B. (S^ W. R. Co. V. Strain, 81 ///. 504. It seems that proof of the market value of a bloodefl animal, and of her value fors|ieed and breeding at the place of shipment, is competent to show the measure of damages, where she is injured while in transportation; and where the animal is shipped with a pro- vision in thecontract that in case of injury ti'M CAKKIAGii or LIVE STOCK, 101, 102. the value of the sKjcIc ut tlic place and date uf shipment sliall (jovcrii the seltlcnient, sucli evidence is clearly admissible. C'///- i:ij,^o&' E. I. K. Co. V. Katziiikxch, 38 Am. «> Eng, R. Las. 375, 118 /«icDonald v. Unaka 'limber Co., 88 Tenn. 38. Followed in Louisville & N. R. Co. V, Wynn, 45 Am. & Eng. R. Cas. 312, 88 Tenn. 320, 14 S. W. Rep. 311. in a suit against a railroad for injuring live stock while being shipped, whicii is in- tended (or breeding purposes, its market v.ilue at a place where there is a market for such animals may be shown, it appearing jthatiliere is no market for sjch animals where kilK-d. Gtil/, C. &• S. F. R. Co. v. Dunman, 4 Tex. App. {Civ. Cas.) 147, 16 S. W. Rep. 421. lUl. Interest oil duiiia|j;vN. — Wherea carrier of live stock is sued for a failure to deliver them within a r(asonal>le time, it is proper to instruct ihc jury that i)!aiiitifl is entitled to interest from the date of the breach of the contract, if the suit be con- sidered as one for breach of contract, or from the date of the iiiiury, if the action is viewed as one in tort. Illinois C. R. Co. v. Jlaynes, 30 .,-/;//. &• Eng. R. Cas. 38, O4 Miss. 604, I So. Rep. 76 5. Under the statute and decisions of the courts of Missouri it is improper to allow interest on the amount of damages from the time of bringing suit in an acti(jn against a carrier st on the amount of damages sus- tained. /■/. Worth &* D. C. R. Co. v. Great- house, 49 Am. &' Eng. R. Cai. 1 57, 82 Te.r. 104. 17 S. IV. Rep. 834.— AuilERKU TO IN Inter-ialional & G. N. R. Co. 7'. Anderson, 3 Tex. Civ. App. 8. 102. Iteview. — Where a carrier of live stock is sued for injuries caused by a col- lision, one of the claims for damages being for the abortions of certain cows, which were claimed to have been caused by the collision, and the case has been submitted on proper instructions, a verdict finding for the plain- tilT will not be reviewed on appeal on the weight of evidence, where ther^ is sufficient evidence to sustain the verdict. A'eiv York, L. E. &- ir. R. Co. V. Estill, 147 0\ S. 591, 13 Sup. Ct. Rep. 444 A railroad com|)any carrying cattle to a point beyond its own line was sued for dam- ages, and the case was tried upon the theory that the measu" oi damages was their value at the place of destination. Jlelil, that the question whether the true meiisure of dam- ages wouU! not be the value of the cattle ai the end of defendant's line could not he CARRIAGE OF LIVIi STOCK, 102. 821 late of the iuit be con- contract, or lie action is f. J\\ Co. V. 38, 64 Miss. ons of tlic LT to allow ;es from llie i 82 Tex, 104, 17 .S". IV. Rep. S34. In an action against a railroad company to recover damages for injury to live stock while being carried, where the company ap- peals from a justice to the county court, and reduces the amount of the judgment, it is error to adjudge that it shall pay all costs, in the absence of anything in the record showing why the costs are thus adjudged. Southern Pac. R. Co. v. Duncan, 3 Ttx. App. {Civ. Cas.) 285. lovers darn- ing carried, rest on the ijury to the /. 6- .v. A. V. Rep. 867. ; asking for r to recover jortation of iry to allow mages sus- So. V. Great- 57, 82 Tex. :kkd to in \nderson, 3 rrier of live d by a col- lages being which were ic collision, on proper r the plain- leal on the is sufficient A'civ Vori', 7 (^'-S. 591, cattle to a ed for dam - 1 the theor> itheii value U, that the ire of (lani- he caiile at uld not he \i 5