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F2446
KF
H^ANDBOOK
63?
I /
ON THE
LAW OF NEGLIGENCE
By MORTON BARROWS, A. B., LL. B.
OF THE ST. PAUL BAR
ST. PAUL, MINN.
WEST PUBLISHING CO.
1900
COPYRIGHT, 1899,
BY
WEST PUBLISHING CO.
PREFACE.
Perhaps no single subdivision of general law has, in the last dec-
ade, so largely engrossed the attention of our courts, both state and
federal, as that of Negligence. The most common form in which
litigation of this class has obtruded into the courts is that of per-
sonal injury cases, so called. It has spread through the country like
an epidemic, but, unlike the ordinary epidemics of physical disease,
it gives no sign of passing away, and fairly promises to become en-
demic and permanent. At least two results are already conspicuous:
On the one hand, the increased precautions against physical injury
and legal liability which are being taken by property owners and
employers of labor; and, on the other, the more precise definition
and exact enunciation by the courts of the involved law. The former
appeals more directly to the laity; the latter, to the legal profession;
but the two are inseparable, and form a potent factor for the public
weal.
It is in these changed conditions the enforced attitude of prop-
erty holder and employer, the altered rights of citizen and laborer,
and the recent adjustments of these complex relations by the courts
that the present work finds its raison d'etre. It is not claimed
for it that it is a treatise, or that it is an exhaustive consideration
of the subject. The aim has been to fairly and impartially state the
settled law, and to so place before the reader the mooted points and
conflicting decisions that he may arrive at his own conclusions, ir-
respective of any expressed sentiment on the part of the author.
In general, the text is the author's expression of the gist of the law
as found in the leading cases and decisions of the courts of last re-
sort ; its only claim to merit lying in its accuracy and simplicity.
In the preparation of the chapter devoted to "Death by Wrongful
Act," extended use has been made of the excellent work on that sub-
ject by Mr. Francis B. Tiffany.
St. Paul, Minn., November 1, 1899.
TABLE OF CONTENTS.
CHAPTER I.
DEFINITION AND ESSENTIAL ELEMENTS.
Section Page
Introductory 1-2
1. Definition 3
2. Essential Elements 8-9
31. Proximate Cause 9-17
5. Efficient, Intervening, or Co-operating Cause Definition. ... 17-33
CHAPTER H.
CONTRIBUTORY NEGLIGENCE.
6. Definition 34-35
7. General Rule 35-36
8. Proximate Cause 36-38
9. Degree of Care 38-39
10. Terror Caused by Real or Fancied Peril 40-41
11. Knowledge of Danger 41-42
12. Assumption of Risk 43-44
13. Anticipation of Negligence 41 45
14. Legal Status of Plaintiff as Affecting His Contributory Negli-
gence 45-48
15. Plaintiff as Trespasser or Licensee 48-50
16. The Relative Time of Plaintiff's Negligence as Affecting His
Right to Recover 51-53
17. Plaintiff's Negligence after the Accident 53-54
18-19. Contributory Negligence of Third Persons 54-55
20. Master and Servant or Principal and Agent 55-56
21. Shipper and Carrier of Goods 56-58
22-23. Passenger and Common Carrier 58- oo
24. Negligence of Husband Imputed to Wife 60-61
25-27. Imputed Negligence 61-65
28. Degree of Care Required of a Child 65-73
29. Lunatics and Idiots 73-74
30. Physical Condition an Element of Contributory Negligence... 74-76
31. Intoxication 76-79
BAR.NEG. (vii)
Vlll TABLE OF CONTENTS.
Section Page
32. Comparative Negligence 79-81
33. Evidence Burden of Proof 81-84
34. Pleading Contributory Negligence 85-86
35. Contributory Negligence as Question of Fact 8G-S8
CHAPTER HI.
LIABILITY OF MASTER TO SERVANT.
36. Duty of Master 89-90
37. Appliances and Places for Work 90-96
38. Selecting and Retaining Servants 97-101
39. Rules and Regulations 101
40. Promulgation of Rules 102-105
41. Warning and Instructing Servants 105-107
42. Limitation of Master's Duty 108
43. Ordinary Risks 10S-111
44. Known Dangers Assumed 111-113
45. Unusual Dangers not Assumed 113-117
46. Unknown Defects or Daxigers 117-119
47. Promise to Repair 120-122
48. Compliance with Express Orders 122-124
49. Servants and Fellow Servants 124-129
50. Common Employment as Test 129-131
51-52. Vice Principal 131-142
53-54. Rule in Federal Courts 142-145
55. Concurrent and Contributory Negligence 146-151
56. Servants' Own Negligence as Proximate Cause 152
CHAPTER IV.
LIABILITY OF MASTER TO THIRD PERSONS.
67. Nature of Master's Liability 153-154
58. Relationship 155-160
59-60. Independent Contractor 160-162
61. Reasonable Care in Selection of Contractor 162
62. Liability When the Object of the Contract is Unlawful. . 163
63. Absolute Personal Duties 163-167
64. Willful Torts of Servants 167-169
65. Torts Outside Scope of Employment 170-171
66. Independent Torts 172-174
TABLE OF CONTENTS. IX
CHAPTER V.
COMMON CARRIER OF PASSENGERS.
Section Page
67. Definition ' 175-176
68. The Relation of Passenger and Carrier 176-178
69. Termination of Relation 178
70. Arrival of Passenger at Destination 178-180
71. Transfer of Passenger to Connecting Carrier 181-182
72. Ejection of Passenger 183-186
73. Who are Passengers Definition 186-193
74. Prepayment of Fare 193-194
75. Classification of Passengers 194-197
76. The Contract 197
77. The Ticket as Evidence 197-200
78. Compensation 200-201
79. Liability to Passengers 201-209
80. Liability for Delay 210-211
81. Limitation of Liability 212-213
CHAPTER VI.
CARRIERS OF GOODS.
82. Definition 214-217
83. Liability for Loss or Damage 217-225
84. Act of God or Public Enemy 225-230
85. Act of Shipper 230-232
86. Authority of Law 232-233
87. Inherent Nature of Goods 233-234
88-89. Liability for Delay 234-236
90. Special Contract of Delivery-' 237
91. Contracts Limiting Liability 237-243
92. Limitation in Illinois 244
93. Limitation in New York 244-246
94. Limitation of Amount of Liability 247-250
95. Limiting Time and Manner of Making Claims 250-251
96. Consideration 252-253
97. Construction of Limiting Contracts 253-254
98. Notices Limiting Liability 254-259
99. Actual Notice of Reasonable Rules 259-261
100. Special Classes of Goods 261
101. Live Stock 261-266
102. Baggage 267-278
X TABLE OF CONTENTS.
Section Page
103. Effects of Occupants of Sleeping Cars 278
104-105. Beginning of Liability 278
106. Delivery for Immediate Transportation 279-280
107. Acceptance 280-281
108. Termination of Liability 281
109. Delivery to Consignee 282-290
110. Delivery to Connecting Carrier 290-296
111. Excuses for Nondelivery 296
112. Superior Adverse Claim 297
113. Stoppage in Transitu 297-298
114. Excepted Perils 299
CHAPTER VH.
OCCUPATION AND USE OF LAND AND WATER.
115. Duties General Rule 300-301
116. Lateral Support 301-302
117. Dangerous Premises 302-303
118. Visitors, Licensees, and Trespassers 304-307
119. Hidden Dangers, Excavations, etc 308-310
120. Private Grounds 310-311
121. Landlord and Tenant 311-312
122. Contract to Repair 312-313
123. Premises Defective at Time of Renting 313-315
124. Liability to Tenant 315-316
125. Safe Access to Rented Property 316-317
126. Water Courses 317-318
127. Construction and Maintenance of Dams 318
128. Rule in United States 318-319
129. Obstruction of Navigable Streams 319-320
CHAPTER VIII.
DANGEROUS INSTRUMENTALITIES.
130. Railroads Degree of Care Exacted in Operating 321-322
131-132. Collision with Persons Care Required of Railroad 322-325
133. Care Proportioned to Danger 325-328
134. Signals 328-329
135. Care Required of Persons 329-332
136. Failure to Give Signals 332-333
137. Assurance of Safety by Agents 333-534
13a Obstructed View.. ..334-335
TABLE OF CONTENTS. XI
Section Page
139. Infirm Travelers 336
140. Contributory Negligence 337-340
141. Collision with Animals 340-341
142. Wanton or Willful Injury 342-343
143. Care after Discovery 343-344
144. Fences 343-348
145. Fires 348-349
146. Intentional Fires 349-350
147. Accidental Fires 351-353
148. Railroad Fires 353
149. Degree of Care 353-360
150. Animals 360-363
151. Domestic Animals 363-365
152. Communicating Disease 366
153. Firearms 367-368
154. Explosives 368-369
155. Poisons 369-370
CHAPTER IX.
NEGLIGENCE OF ATTORNEYS. PHYSICIANS, AND PUBLIC OFFICERS.
156. Negligence of Attorneys 371-374
157. Damage Essential to Liability 375
158. Negligence of Physicians 375-378
159. Burden of Proof Evidence Pleading 378-379
160. Negligence of Public Officers Governmental Officers 379-380
161. Ministerial Officers 380-381
162. Sheriffs and Constables 381-385
163. Notaries Public 385-387
164. Clerks of Court and Registers of Deeds 387-389
CHAPTER X.
DEATH BY WRONGFUL ACT.
165-166. Kight of Action 390-397
167. Instantaneous Death 397-398
168. Proximate Cause of Death 398-402
169. Beneficiaries 402-404
170. Damages 404-415
171. Pleading 415-417
172. Evidence 418-419
173. Limitation of Commencement of Action ..419-422
Xll TABLE OF CONTENTS.
CHAPTER XI.
NEGLIGENCE OF MUNICIPAL CORPORATIONS.
Section Page
174-175. Public and Private Corporations 423124
176. Public Corporations Definition 424-425
177. Right of Action 425-427
178. Liability for Injuries 428-438
179. Alteration of Grades 438-440
180. Acts of Officers or Agents 440-444
181. Acts Ultra Vires 444-448
182. Judicial or Legislative Duties 448-451
183. Conflagrations and Destruction by Mobs 451-452
184. Public Health and Sanitation 453
185. Quasi Municipal Corporations 454-457
HANDBOOK
ON THE
LAW OF NEGLIGENCE.
CHAPTER I.
DEFINITION AND ESSENTIAL ELEMENTS.
1. Definition.
2. Essential Elements.
8-4. Proximate Cause.
5. Efficient, Intervening, or Co-operating Cause Definition.
All attempts to bind down and limit the subject of this work by
terse definition have necessarily proved unsatisfactory. The most
that can be realized by an effort in this direction is a clear and con-
cise grouping into a statement of pertinent words which shall serve
to direct attention to the essential elements of the conditions com-
posing and embraced in the word "negligence." Anything which at-
tempts to go beyond this ceases to be a definition, and becomes merely
descriptive and analytical. 1
i Among numerous definitions, we note the following: "Actionable negli-
gence consists in the neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of observing ordinary care and
skill, by which neglect the plaintiff, without contributory negligence on his
part, has suffered injury to his person or property." Also, in same case:
"Whenever one person is by circumstances placed in such a position with
regard to another that every one of ordinary sense who did think would at
once recognize that, if he did not use ordinary care and skill in his own con-
duct with regard to those circumstances he would cause danger of injury to
the person or property of the other, a duty arises to use ordinary care and
skill to avoid such danger." Brett, M. R., in Heaven v. Fender, 11 Q. B. Div.
506. "The omitting to do something that a reasonable man would do, or the
BAR.NEG. 1
2 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
For mere purposes of convenience in outlining the scope of this
work, and not as a solution of the difficulty, or even an improvement
over a dozen other definitions, we define actionable negligence thus:
doing something which a reasonable man would not do; and an action may
be brought if thereby mischief is caused to a third party, not intentionally."
Alderson, B., in Blyth v. Waterworks Co., 25 Law J. Exch. 213. "Negligence,
in its civil relations, is such an inadvertent imperfection, by a responsible
human agent, in the discharge of a legal duty, as immediately produces, in an
ordinary and natural sequence, a damage to another. The inadvertency, or
want of due consideration of duty is the injuria, on which, when naturally
followed by the dainnum, the suit is based." Whart. Neg. 3. "Negligence
is the failure to do what a reasonable and prudent person would ordinarily
have done under the circumstances of the situation, or doing what such a
person, under the existing circumstances, would not have done. The essence
of the fault may lie in omission or commission." Swayne, J., in Baltimore &
P. R. Co. v. Jones, 95 U. S. 439, at page 442. "Negligence constituting a
cause of civil action is such an omission, by a responsible person, to use the
degree of care, diligence, and skill which it was his legal duty to use for the
protection of another person from injury, as, in a natural and continuous
sequence, causes unintended damage to the latter." Shear. & R. Neg. 3.
"Negligence is any lack of carefulness in one's conduct, whether in doing or
abstaining from doing, wherefrom, by reason of its not fulfilling the measure
of the law's requirement in the particular circumstances, there comes to an-
other a legal injury to which he did not himself contribute by his own want
of carefulness or other wrong." Bish. Noncont. Law, 436. "Some relation
of duty, public or private, special or general, must exist, either by contract or
as an implication of public policy, before one man becomes liable to another
for the consequences of a careless act or omission on the part of the first
man which causes injury to the second man; and when such duty does exist,
and such careless act or omission occurs, causing an injury in direct and reg-
ular sequence, the careless act becomes, in the eyes of the law, actionable neg-
ligence, for which the party injured has a right of action against the person
inflicting the injury." Pol. Torts, 352. "Negligence, in law, is a breach of
duty, unintentional, and proximately producing injury to another possessing
equal rights." Smith, Neg. 1. See, also, definitions in following cases: Texas
& P. Ry. Co. v. Murphy, 46 Tex. 356; Baltimore & P. R. Co. v. Jones, 95 U. S.
442; Gardner v. Heartt, 3 Denio (N. Y.) 232, at page 236; Tonawanda R. Co. v.
Munger, 5 Denio (N. Y.) 255; Brown v. Railway Co., 49 Mich. 153, 13 N. W.
494; Northern Cent. Ry. Co. v. State, 29 Md. 420; Philadelphia, W. & B. R. Co.
v. Stinger, 78 Pa. St. 225; Barber v. Town of Essex, 27 Vt. 62; Elaine v. Rail-
road Co., 9 W. Ya. 252; Fletcher v. Railroad Co., 1 Allen (Mass.) 9; Cayzer v.
Taylor, 10 Gray (Mass.) 274; Frankford & B. Turnpike Co. v. Philadelphia & T.
R. Co., 54 Pa. St. 345; Kelsey v. Barney, 12 N. Y. 425; Unger v. Railway Co.,
51 N. Y. 497; Grant v. Moseley, 29 Ala. 302; Pennsylvania R. Co. v. Matthews,
2) ESSENTIAL ELEMENTS.
DEFINITION.
1. The inadvertent failure to perform a noncontractual
duty, to the logically consequent damage of a third
person.
ESSENTIAL ELEMENTS.
2. The essential elements are at once discerned:
(a) A legal duty.
(b Failure in performance.
(c) Inadvertence.
(d) Damage.
It is, of course, assumed that the neglector is a legally responsible
person, otherwise a legal duty could not be predicated of his conduct.
The Legal Duty.
The duty violated must be one recognized by law; that is, one
which the law requires to be done or forborne, either towards the
public or a particular person. With every duty there is, of course,
a corresponding right to compel its enforcement. But, as used in
the definition, the term "duty" must be greatly contracted in its ap-
plication, for not every failure to perform a legal duty, although the
other elements of negligence may be present, will constitute action-
able negligence. E. g. it is the legal duty of the maker of a prom-
issory note to pay the same at maturity. The matter may entirely
escape his mind, and the nonpayment damage the holder much be-
yond the amount for which the note was made, yet no action for neg-
ligence would lie.
36 N. J. Law, 531; Bizzell v. Booker, 16 Ark. 308; Chicago, B. & Q. R. Co. v.
Johnson, 103 111. 512, 521; Great Western R. Co. v. Haworth, 39 111. 340, 353;
Carter v. Railroad Co., 19 S. C. 20, 24; Kerwhaker v. Railroad Co., 3 Ohio St.
172; Galloway v. Railway Co., 87 Iowa, 458, 54 N. W. 447; Texas & P.
Ry. Co. v. Gorman, 2 Tex. Civ. App. 144, 21 S. W. 158; Moulder v. Railroad
Co., 1 Ohio N. P. 361; Texas & P. Ry. Co. v. Curlin, 13 Tex. Civ. App. 505,
36 S. W. 1003; Missouri, K. & T. Ry. Co. of Texas v. Hannig, 91 Tex. 347,
43 S. W. 508; Irvin v. Railway Co. (Tex. Civ. App.) 42 S. W. 661; Missouri,
K. & T. Ry. Co. of Texas v. Webb (Tex. Civ. App.) 49 S. W. 526; Yaughan v.
Railroad Co., 5 Hurl. & N. GS7.
4 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
The duty violated must be noncontractual between the parties,
implied or expressly created by law. When the minds of two parties
meet, and they mutually agree to govern their conduct in accordance
with expressed stipulations, any breach of that agreement is refer-
able for adjustment to the contract. But the affairs of mankind are
so intricate, and human nature so selfish, the tendency to jostle and
crow r d so ingrained in every class of society and business, that law r
by implication and statute, is compelled to direct and check the in-
dividual at every turn, and to impress on him that he is not absolute-
ly unrestricted in the enjoyment of his property; that "sic utere tuo ut
alienum non laedas."
The duty must be owing from the defendant to the plaintiff, other-
wise there can be no negligence, so far as the plaintiff is concerned. 1
Moreover, it should be borne in mind that there can be no duty to do
an act unless one has a right to do it, 2 and the duty must be owing to
plaintiff in an individual capacity, and not merely as one of the general
public. 8
Same Breach of Moral Duty Insufficient.
This excludes from actionable negligence all failures to observe the
obligations imposed by charity, gratitude, generosity, and the kindred
virtues. The moral law would obligate an attempt to rescue a per-
son in a perilous position, as a drowning child, but the law of the
land does not require it, no matter how little personal risk it might
involve, provided that the person who declines to act is not respon-
sible for the peril.
Failure in Performance.
The breach of duty may consist in the omission to perform a posi-
tive duty, or in the commission of an act which is forbidden. Austin
1-2. i Hofnagle v. Railroad Co., 55 N. Y. 608; Gross v. Railway Co. r
73 111. App. 217.
a Carpenter v. City of Cohoes, 81 N. Y. 21; Veeder v. Village of Little Falls,
100 N. Y. 343, 3 N. E. 306 (city held not liable for not putting fences on high-
way belonging to state).
s Peck v. Village of Batavia, 32 Barb. 634 (action against city for negligence
in failing to keep bridge in repair); City of Albany v. Cunliff, 2 N. Y. 165;
Blagrave v. Waterworks Co., 1 Hurl. & N. 369 (defendant blocked highway,
and compelled public to cross plaintiff's land in order to get by the obstruc-
tion).
: 2) ESSENTIAL ELEMENTS. 5
says : 4 "The party who is negligent omits an act and breaks a
positive duty; the party who is heedless does an act and breaks a
negative duty." This distinction is metaphysical, and of no practical
value. Failure in performance will be discussed at greater length
Tiereafter. For the present analysis, it is sufficient to state that in
general the breach of duty consists in the failure to use the kind of
care usually exercised by competent, prudent persons, in sufficient
numbers to form a class, in similar transactions.
Inadvertence.
The failure to perform the required duty must be inadvertent.
'This is implied in the word "negligence" itself. Austin distinguishes
"between "negligence" and "heedlessness," but admits that the words
indicate precisely the same state of mind. 'In either case the party
is inadvertent. In the. first case he does not an act which he was
bound to do, because he adverts not to it; in the second case he does
an act which he w r as bound to forbear, because he adverts not to cer-
tain of its probable consequences. Absence of a thought which one's
duty would naturally suggest is the main ingredient in each of the com-
plex notions which are styled 'negligence' and 'heedlessness.' * * *
'The party who is guilty of rashness thinks of the probable mischief, but
in consequence of a misapprehension, begotten by insufficient advert-
ence, he assumes that the mischief will not ensue in the given in-
stance or case. * * *" 5 It is immaterial how we define and dis-
tinguish the various mental conditions implied by these different
terms. Each carries the characteristics of inadvertence, the fail-
ure to connect the act with the result; and the culpability of the
defendant lies equally in each, being referable to his want of due con-
sideration for his duty.
Same "Heedlessness" and "Malice" Distinguished.
Although the term "willful negligence" is paradoxical, authorities
are not entirely wanting who sanction its use. 6 It is probable, as
* Aust. Jur. (3d Ed.) 1440.
e Id.
Peoria Bridge Ass'n v. Loomis, 20 111. 235, 71 Am. Dec. 263; Toledo, W.
.& W. Ry. Co. v. Beggs, 85 111. 80; Holmes v. Railway Co., 48 Mo. App. 79;
Hancock v. Railroad Co. (Ind. App.) 51 N. E. 369; Jacksonville S. E. Ry.
Co. v. South worth, 135 111. 250, 25 N. E. 1093; Chicago & N. W. R. Co. v.
-Chapman, 30 111. App. 504; Chesapeake & O. Ry. Co. v. Yost (Ivy.) 2'J S. W.
6 DEFINITION AND ESSENTIAL ELEMENTS. (Gil. i
suggested by Mr. Smith, 7 that in many instances "willful" is used to
mean only "reckless," but the explanation, if true, in no degree ex-
cuses the use of the word when applied to negligence. Moreover, to
say that cases of negligence, as they arise in practice, and as found in
reports, are not determined by theoretical considerations, 8 is beside
the issue. It is on the line of practical treatment that we insist
the distinction should be drawn. It is true that in many cases it is
immaterial, as to the justice of the verdict, whether the act com-
plained of is really willful or merely inadvertent, but in very many
more the question of intent is vital to the issue. "The distinction
between 'negligence' and 'willful tort' is important to be observed, not
only in order to avoid a confusion of principles, but it is necessary in
determining the question of damages, since, in case of an injury by
326. In Cleveland, C., C. & I. Ry. Co. v. Asbury, 120 Ind. 289, 22 N. E.
140, the complaint alleged "wanton" and "willful" negligence, and "intention
to injure" plaintiff, but the court held the gist of the action to be simple negli-
gence, and sustained the complaint. Also, see Louisville & N. R. Co. v. Mitch-
ell, 87 Ky. 327, 8 S. W. 706; Hays v. Railway Co., 70 Tex. 602, 606, 8 S. W. 491.
Whitt. Smith, Neg. p. 3: "If an act be intentional, it becomes fraudulent and
criminal, or it may be a trespass. * * * 'Intentional negligence,' a phrase
sometimes used, seems to involve a contradiction in terms. So, also, the words
'willful negligence' are often used, where, if by 'willful' is meant 'intentional/
the same objection applies; but if by 'willful' only 'recklessness' is meant, the
phrase 'willful negligence' seems unobjectionable." Actions for "willful" and
"wanton" negligence are frequently brought. Kentucky Cent. R. Co. v.
Gastineau's Adm'r, 83 Ky. 119. Willful neglect in this case is defined as
an intentional failure to perform a manifest duty in which the public has
an interest, or which is important to the person injured in either preventing
or avoiding the injury. Newport News & Mississippi Val. Co. v. Dentzel's
Adm'r, 91 Ky. 42, 14 S. W. 958. In some cases knowledge of probable conse-
quences is held equivalent to willfulness, and a consciousness must exist that
the conduct will almost surely result in an injury. Georgia Pac. Ry. Co. v.
Lee, 92 Ala. 262, 9 South. 230; Richmond & D. R. Co. v. Vance, 93 Ala. 144,
9 South. 574. It has been held that to run a locomotive in the dark, along a
frequented road, at a high and dangerous rate of speed, without a headlight,
and without ringing the bell, is evidence sufficient to establish willful neg-
ligence. East St. Louis Connecting Ry. Co. v. O'Hara, 49 111. App. 282, affirmed
in 150 111. 580, 37 N. E. 917. Again, in Chesapeake & O. Ry. Co. v. Yost
(Ky.) 29 S. W..326, it was said that the term "willful neglect" applied only to
actions for loss of life involving punitive damages.
T Whitt. Smith, Neg. p. 3.
8 Pigg. Torts, 208.
2) ESSENTIAL ELEMENTS. 7
the former, damages can only be compensatory, while in the latter
they may also be punitory, vindictive, or exemplary. 9 The distinction
is also needful because of the defenses which may be set up. Con-
tributory negligence of the plaintiff is no bar to an action for a willful
tort, though it is a complete bar to an action for negligence." 10
From a consideration of the cases it seems probable that the words
"willful," "malicious," and others indicating a wrongful, deliberate
intention, are often coupled with the word "negligence" by the courts,
and thus used to designate what they would term "gross negligence" ;
the recovery being limited to the immediate or proximate results of
the wrongful act. And again "gross negligence" is made sufficiently
elastic to include acts mala in se, and thus support a verdict for re-
mote damages, as for a willful tort. This inaccuracy is to be re-
gretted, for its evil consequences are far-reaching. Decisions thus
made are quoted, as authorities, and serve to sustain recovery for
simple negligence, where the cause was remote, and also to allow the
wrongdoer to escape the just penalty for an act which is malum in se,
and not "gross negligence."
In criminal as well as in civil actions the term "negligence" is
made to include both "heedlessness" and "rashness," provided always
that the element of evil design is not injected to change the mental
condition of mere inadvertence into malicious intent.
This mental condition involving malice the intent that harm
should flow from the act or omission was clearly recognized by the
Roman law under the term "dolus." Theoretically, at least, the pres-
ence of malicious intent is fatal in an action for negligence. If the
malice is pleaded, it must be shown. Proof of mere negligence will
9 Walrath v. Redfield, 11 Barb. (N. Y.) 368; 1 Suth. Darn. 724; Day v. Wood-
worth, 13 How. 3G3. The recovery of punitive or vindictive .damages is
allowed only where the act causing the injury has been willfully done, or where
the circumstances indicate that there was a deliberate, preconceived, or posi-
tive intention to injure, or show that reckless disregard of person or prop-
erty which is equally culpable. Wallace v. Mayor, etc., 2 Hilt. (N. Y.) 440;
Moody v. McDonald, 4 Cal. 297.
10 Derby's Adm'r v. Kentucky Cent. R. Co. (Ky.) 4 S. W. 303; McMahon
v. Davidson, 12 Minn. 357 (Gil. 232). In Carroll v. Railroad Co., 13 Minn. 30
(Gil. 18), McMillan, J., says: "It is a well-settled rule that, although the de-
fendant may be guilty of negligence, unless there was some intentional wrong
on his part, the plaintiff cannot recover for an injury to which he himself has
contributed."
8 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
not sustain a verdict. 11 On the other hand, it not infrequently hap-
pens that under a complaint for negligence proper the evidence elicit-
ed shows clearly the willfulness of the act or omission. The develop-
ment of this element at the trial cannot nonsuit the plaintiff. The
greater includes the less. He has overproved his case, and it will
not be allowed to react to the injury of his claim. But, on the other
hand, the plaintiff should not, in such an event, be allowed to make
use of this element of malice for the purpose of influencing the jury,
and securing greater damages than should be awarded in strict con-
formity to the pleaded case.
It follows, as a corollary to what has just been said, that, if malice
has not been specifically pleaded in the complaint, direct proof of such
intent is inadmissible at the trial. 12
Damage.
The damage must be a logical consequence; the injury complained
of must follow the breach of duty in an ordinary and natural sequence.
Much of the confusion which exists in the discussion of principles,
and many of the apparent conflicts in reported cases, arise from an
inaccurate use of terms. The Latin language was peculiarly adapted
to exact definition, and the Romans themselves were strict and uni-
form in their employment of legal terms. On the other hand, the
English language is proverbially loose and inexact, and the employ-
ment of many of the Latin terms therefore becomes not only con-
venient, but in many cases absolutely essential to distinct expression
in legal analysis. Unless, however, the original and precise meaning
of terms thus incorporated is carefully preserved, confusion and mis-
understanding inevitably result. For the double purpose, therefore,
11 Indiana, B. & W. Ry. Co. v. Burdge, 94 Ind. 46; Hancock v. Railway Co.
(Ind. App.) 51 N. E. 369; Pennsylvania Co. v. Smith, 98 Ind. 42. In this
case the complaint alleged that: "* * * defendant's engineer on said train,
In a willful, reckless, careless, and unlawful manner, let on such a volume of
steam to the engine as caused said train to jump," etc. The court says: "The
principal question arising on the motion for a new trial is, was the verdict
sustained by sufficient evidence? A verdict cannot be disturbed where there
is any competent evidence tending to support it. Under the allegations of
the complaint here, there could be no recovery unless the injury was proved
to have been willful. We think there was no evidence tending to show a
willful injury."
12 Pennsylvania Co. v. Smith, 98 Ind. 42.
3-4) PROXIMATE CAUSE. 9
of exactness and convenience, it is necessary to call attention to the
distinction between the "injuria" and the "damnum," both of which
must be present in every case of actionable negligence. These terms
will be used frequently hereafter in their strict application.
Same "Iiywria" and "Damnum" Distinguished.
Injuria does not mean injury or mischief. In its derivative sense
it means unlawfulness ; in its legal adoption it embodies whatever is
done contrary to law. Damnum is legal mischief flowing in a direct
.and natural sequence from the injuria. Theoretically, at least, every
fracture of the law injuria must be productive of damnum or
Tiarm ; but the converse, viz. that every damnum or harm is the result
of injuria, is 'not true. Damnum may occur without injuria. Thus,
the harm done another by the willful destruction of his property is
damnum, and, in the abstract sense, a law is violated; but in the con-
crete act under consideration it may well be that the circumstances
excused the performer, as, in the event of a conflagration in a city,
the blowing up of buildings to prevent the spread of the fire is upheld
.and sanctioned by law as a necessity to avert greater loss. 18
PROXIMATE CAUSE.
3. Negligence being proved, the relation of cause and ef-
fect must be established, directly connecting the
breach of duty -with the injury to plaintiff.
4. A proximate cause may be denned as one which, oper-
ating in accordance with natural laws, in a con-
tinuous sequence, is the main factor in producing
the event in question.
It has been sometimes said that a person is not liable for an in-
jury which he cannot foresee as the result of his act, 1 but this is cer-
tainly not true. The case of Blyth v. Birmingham Waterworks 2
has been often cited as supporting this doctrine, but we are unable
!3 Respublica v. Sparhawk, 1 Dall. 357; Maleverer y. Spinke, 1 Dyer, 36;
Smith v. City of Rochester, 76 N. Y. 506; Neuert v. City of Boston, 120 Mass.
-338. And see post, p. 452.
3-4. i Whitt. Smith, Xeg. p. 24.
2 Law J. 11 Exch. 781.
10 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
so to interpret this decision. In the case of Smith v. London & S. W.
R. Co., 3 Channel!, B., said: "Where there is no direct evidence
of negligence, the question what a reasonable man might foresee is
of importance in considering the question whether there is evidence
for the jury of negligence or not; and this is what was meant by
Bramwell, B., in his judgment in Blyth v. Birmingham Waterworks
Co.; * * * but, where it has been once determined that there is
evidence of negligence, the person guilty of it is equally liable for its
consequences, whether he could have foreseen them or not." In the
case of Milwaukee & St. P. Ry. Co. v. Kellogg 4 the court say : "It is
admitted that the rule is difficult of application. But it is generally
held that, in order to warrant a finding that negligence, or an act not
amounting to wanton wrong, is the proximate cause of an injury, it
must appear that the -injury was the natural and probable conse-
quence of the negligence or wrongful act, and that it ought to have-
been foreseen in the light of the attending circumstances." In this
and many other decisions, 5 which may be regarded as leading, it will
s L. E. 6 C. P. 21.
* 94 U. S. 469, 475.
s Hoag v. Railroad Co., 85 Pa. St. 293: "A man's responsibility for his
negligence and that of his servants must end somewhere. There is a possibil-
ity of carrying an admittedly correct principle too far. * * * The true rule
is that the injury must be the natural and probable consequence of the negli-
gence; such a consequence as, under the surrounding circumstances of the
case, might and ought to have been foreseen by the wrongdoer as likely ta
flow from his act." See, also, Pol. Torts, 36, 37; Pittsburgh Southern Ry. Co.
v. Taylor, 104 Pa. St 306; Jacksonville, T. & K. W. Ry. Co. v. Peninsular
Land, Transp. & Mfg. Co., 27 Fla. 1, 157, 9 South. 661; Deisenrieter v. Malt-
ing Co., 97 Wis. 279, 72 N. W. 735; Schneider v. Railway Co., 99 Wis. 378, 75
N. W. 169; Motey v. Granite Co., 20 C. C. A. 366, 74 Fed. 155. In McGrew
v. Stone, 53 Pa. St. 436, the language of the court is still stronger: "Within
the probable range of ordinary circumspection." In Milwaukee & St. P. Ry.
Co. v. Kellogg, 94 U. S. 469, plaintiff's property, a sawmill, was destroyed by
fire alleged to have been negligently caused by defendant in the operation of
its steamboat. The testimony tended to show that defendants' steamboat set
fire to defendants' elevator, and that the fire was thence communicated to
plaintiff's mill. At the time of the fire a strong wind was blowing from the
elevator towards the mill, which was '538 feet distant, and towards plaintiff's
lumber, the nearest pile of which was 388 feet distant. The supreme court
held that it was not error on the part of the trial court to refuse to charge
as follows: "If they believed the sparks from the Jennie Brown set fire to the
3-4) PROXIMATE CAUSE. 11
be observed that the language is, "ought to have been foreseen." This
theory is substantially sustained by a long line of decisions, in which
the courts seemingly hold that the result must be so intimately con-
nected with the cause, in a direct and natural sequence of events,
that a man of ordinary prudence and intelligence would actually have
foreseen some injurious result, although not necessarily the one that
did ensue. 6
elevator through the negligence of the defendants, and the distance of the
elevator from the nearest lumber pile "was three hundred and eighty-eight feet,
and from the mill five hundred and thirty-eight feet, then the proximate
cause of the burning of the mill and lumber was the burning of the elevator,
and the injury was too remote from the negligence to afford a ground for a
recovery." The court then goes on to say: "The true rule is that what is the
proximate cause of an injury is ordinarily a question for the jury. It is not
a question of science or of legal knowledge. It is to be determined as a
fact, in view of the circumstances of fact attending it. The primary cause
may be the proximate cause of a disaster, though it may operate through suc-
cessive instruments, as an article at the end of a chain may be moved by a
force applied to the other end, the force being the proximate cause of the
movement; or as in the oft-cited case of the squib thrown in the market
place. The question always is, was there an unbroken connection between
the wrongful act and the injury, a continuous operation? Did the facts con-
stitute a continuous succession of events, so linked together as to make a
natural whole, or was there some new and independent cause intervening be-
tween the wrong and the injury?"
e Louisville & N. R. Co. v. Guthrie, 10 Lea (Tenn.) 432; West Mahanoy Tp.
v. Watson. 112 Pa. St. 574, 3 Atl. 8G6; Wabash, St. L. & P. Ry. Co. v. Locke,
112 Ind. 404, 14 N. E. 391; McClary v. Railroad Co., 3 Neb. 44; Atkinson v.
Transportation Co., 60 Wis. 141, 18 X. W. 764; Toledo, W. & W. Ry. Co. v.
Muthersbaugh, 71 111. 572; Tutein v. Hurley, 98 Mass. 211; Lane v. Atlantic
Works. Ill Mass. 136; Hill v. Winsor, 118 Mass. 251; Campbell v. City of
Stillwater, 32 Minn. 30$, 20 N. W. 320; McDonald v. Snelling, 14 Allen (Mass.)
290; Scheffer v. Railroad Co., 105 U. S. 249; Pittsburgh Southern Ry. Co. v.
Taylor, 104 Pa. St. 306; Ward v. Weeks, 7 Bing. 211 (slander); Greenland v.
Chaplin, 5 Exch. 243; Clark v. Chambers, 3 Q. B. Div. 327; Illidge v. Goodwin,
5 Car. & P. 190; Coley v. City of Statesville, 121 N. C. 301, 28 S. E. 482.
In Glover v. Railroad Co., L. R. 3 Q. B. 25, a counter, which had been left
for some time on the sidewalk, unexpectedly fell, and killed a child. There
was no doubt that the child's death was the proximate and direct result of
defendant's action in leaving the counter where he did, but it was decided
that he had not been negligent in so doing, and therefore no recovery could be
had for the injury. Pol. Torts, pp. 36, 37: "It follows that if, in a particu-
lar case, the harm complained of is not such as a reasonable man in the
12 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
Te t of Negligence must not be Used as Test of Proximate Cause.
In attempting to distinguish between the decisions that follow the
doctrine laid down in Smith v. London & S. W. K. Co. and those that
adopt the principle enunciated in Milwaukee & St. P. R. Co. v. Kellogg
it should be observed that in many of the latter class there was no
direct evidence of negligence or breach of duty on the part of defend-
ant, but, instead of subjecting the original act of the defendant to
the test of proper care, they apply this same test to the result of his
act, in order to determine the relation of cause and effect. The argu-
ment shapes itself something like this: The injury could not have
been foreseen by the use of proper care; therefore the lack of proper
care cannot be its proximate cause. The inquiry should be conducted
something as follows: Was proper care observed in the circumstan-
ces? And in determining this question reference must be had to
possible injurious results happening to any one. If answered in the
affirmative, the case falls to the ground, for there can be no recovery.
If answered in the negative, it must then be asked, does the injury
complained of fall within the class of results contemplated as possi-
ble in testing the degree of care required of the defendant? and, lastly,
is the particular injury a regular and natural consequence of defend-
ant's negligence?
It must be kept in mind that a breach of duty is essential to a re-
covery in an action for negligence. Harm may result directly from
a nonnegligent act; there may be damnum without injuria. 7 A per-
son, in a careful and prudent manner, attempts to separate two dogs
which are fighting, and accidentally injures plaintiff. 8 Here the de-
defendant's place should have foreseen as likely to happen, there is no wrong
and no liability." In attempting to distinguish between these cases and those
which follow the rule laid down in Smith v. Railroad Co., viz.: "Where there
is evidence of negligence, the person guilty of it is equally liable for the con-
sequences, whether he could have foreseen them or not," it should be observed
that in many of the preceding and similar cases there was no evidence of
negligence other than the fact that the injury complained of resulted, more
or less remotely, from defendant's act. In other words, the question to be
determined in many of these cases is, was defendant guilty of any negli-
gence at all? and not, was the injury the proximate result of defendant's
act? See City of Chicago v. Starr, 42 111. 174.
7 See ante, p. 9.
Brown v. Kendall, 6 Cush. (Mass.) 292.
3-4) PROXIMATE CAUSE. 13
fendant's act was unquestionably the proximate cause of the injury,
but it is equally unquestionable that no one in defendant's position
could have foreseen the possibility of injury resulting to any one,
and, if he used the proper degree of care in attempting to separate
the dogs, there can be no liability. The difficulty experienced in lay-
ing down a general rule to cover every case has led some of the ablest
judges to decline to state a fixed rule. 9 -Notwithstanding these au-
thorities, the tendency of the courts would seem to be that, negligence
being established, the person guilty of it is liable for its consequences,
whether they be such as he could or ought to have foreseen or not. 1 *
Page v. Bucksport, 64 Me. 51; Willey v. Inhabitants of Belfast, 61 Me.
569. Fleming v. Beck, 48 Pa. St. 309 (Agnew, J.): "In strict logic it may be
said that he who is the cause of loss should be answerable for all the losses-
which flow from his causation. But in the practical -workings of society the
law finds, in this as in a great variety of other matters, that the rule of logic
is impracticable and unjust. The general conduct and the reflections of man-
kind are not founded upon nice casuistry. Things are thought and acted upon
rather in a general way than upon long, laborious, extended, and trained in-
vestigation. Among the masses of mankind, conclusions are generally the-
results of hasty and partial reflection. Their undertakings, therefore, must be
construed in view of these facts; otherwise, they would often be run into a
chain of consequences wholly foreign to their intentions. In the ordinary
callings and business of life, failures are frequent Few, indeed, always come
up to a proper standard of performance, whether in relation to time, quality,
degree, or kind. To visit upon them all the consequences of failure would set
society upon edge, and fill the courts with useless and injurious litigation. It
is impossible to compensate for all losses, and the law therefore aims at a just
discrimination, which will impose upon the party causing them the proportion
of them that a proper view of his acts and the attending circumstances would
dictate."
10 Smith v. Railroad Co., L. R. 6 C. P. 14. "The word 'proximately' is to-
be distinguished from the word 'culpably.' An act, to be culpable, that is,
to be a breach of legal duty, must, as we have seen, be such as a reasonably
careful man -would foresee would be productive of injury, and the person i&
not liable for an injury he could not foresee; but a breach of duty, to be
proximately producing injury, must be such that, whether defendant could,
foresee the injury to be probable or not, the breach of duty is in fact the
probable cause of the injury." Smith, Neg. *16. Louisville, N. A. &, C. R..
Co. v. Nitsche, 126 Ind. 229, 26 X. E. 51, 45 Am. & Eng. R. Cas. 532 (Elliott,
J.): "The wrong of the appellant put in motion the destructive agency, and
the result is directly attributable to that wrong. In this instance cause and
effect are interlinked. There is no break. The chain is perfect and complete.'^
14 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
The apparent severity of this rule is modified when it is considered
that the establishment of negligence is a condition precedent to its
enforcement, and in determining this question of negligence the test
may be applied whether the occurrence of some such injury as that
suffered by -plaintiff, if seasonably suggested, would not have been
recognized by defendant as a possible consequence of his act. In
theory, at least, there is no escape from the conclusion that there is
no limit to the liability of a person for the direct, natural results of
his negligence. Consider the case of a fire set by defendant's loco-
motive. Concede that it occurred by reason of a defective spark
Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 74, 619, 18 Am. & Eng. R. Gas.
220; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 18 Am. & Eng. R. Cas. 234;
Liming v. Railroad Co., 81 Iowa, 246, 47 N. W. 67; Hess v. Mining Co., ITS
Pa. St. 239, 35 Atl. 990; Rosenbaum v. Shoffner, 98 Term. 624, 40 S. W. 1080;
International & G. N. R. Co. v. Mclver (Tex. Civ. App.) 40 S. W. 438; Webster
v. Symes, 109 Mich. 1, 66 N. W. 580. In Lowery v. Railway Co., 99 N. Y.
158, 1 N. E. 608, fire fell from defendant's locomotive upon a horse attached
to a wagon, and also on the driver's hand. The horse ran away. The driver
tried to stop him, and, failing, turned him onto the curb. The horse crossed
the curb, and injured plaintiff. The court > said: "* * * If he made a mis-
take of judgment, the defendant was not relieved of liability. We think
that the damage sustained by the plaintiff was not too remote, and that the
wrongful act of the defendant in allowing the coals to escape from the locomo-
tive, thus causing the horse to become frightened and run, was the proximate
cause of the injury, and that the running away of the horse and the collision
with the plaintiff were the natural and probable consequences of the negli-
gence of the defendant." In this case the court attempts to distinguish it
from Ryan v. Railroad Co., 35 N. Y. 210, but it would appear that the Ryan
Case is overruled both by this and Webb v. Railroad Co., 49 N. Y. 420. An
instruction which attempts to define the character and degree of negligence
which would authorize a recovery for an injury, but which omits the essential
qualification that the negligence upon which a recovery must be based is such
as contributed to the injury, and such alone, is erroneous. Chicago & N. W.
Ry. Co. v. Carroll, 12 111. App. 643. In Ehrgott v. Mayor, etc., 96 N. Y. 264,
Earl, J., emphatically refuses to recognize any limit of liability imposed by
inability to foresee the injurious consequences. After a vigorous summary,
he concludes as follows: "The true rule, broadly stated, is that a wrongdoer
is liable for the damages which he causes by his misconduct. * * * The
best statement of this rule is that a wrongdoer is responsible for the natural
and proximate consequences of his misconduct, and what are such consequences
must generally be left for the determination of the jury." But see Cook v.
Railway Co., 97 Wis. 624, 74 N. W. GUI.
3-4) PROXIMATE CAUSE. 15
arrester, and that the conditions prevailing were a high wind, a
drouth, and unlimited prairies, continuously covered with a heavy
growth of dead, dry grass. A falling spark sets fire to a tie, is com-
municated to weeds growing on the roadbed, spreads to the prairie
grass, which in turn sets fire to A.'s house, situated 100 feet from the
track. Unquestionably defendant is liable to A. 11 No new element
is introduced by the supposition that A.'s house is removed 1 mile or
50 miles further out into the prairie grass. The determining condi-
tions are unchanged by increasing the distance, and the defendant
must still be held liable. Xor is the situation in any respect altered
by apportioning the title to the intervening 50 miles among 50 or 100
owners. 12 In discussing the causal connection in such cases, Dr.
Wharton says: 13 "Of course, we will all hold that in such case the
liability must stop somewhere. The only rule to which we can re-
sort is that just noticed, that causal connection ceases where there
is interposed between the negligence and the damage an object which,
if due care had been taken, would have prevented the damage." It
would seem to us that in this solution the learned doctor has not
more than barely escaped a petitio principii. The only limitation
of liability in cases like this, where the causal connection is not
broken, must be placed by the good sense of the jury, under proper
instructions from the court.
Where defendant's steamboat negligently set fire to accumulated
shavings and sawdust on the shore, which in turn set fire to a planing
mill, burned nearly 100 intervening houses, and finally destroyed
plaintiff's building, at a distance of nearly a mile from the starting
point, defendant's negligence was held to be the proximate cause of
11 Webb v. Railroad Co., 49 N. Y. 420; Haverly v. Railroad Co., 135 Pa. St.
50, 19 Atl. 1013, 26 Wkly. Notes Cas. 321.
12 Cincinnati, N. O. & T. P. R. Co. v. Barker, 94 Ky. 71, 21 S. W. 347. If
the fire spreads from the matter first ignited, the intervention of considerable
space, or of various physical objects, or a diversity of ownerships, does not
preclude recovery, or affect the company's liability for its first negligent act.
Chicago, St. L. & P. R. Co. v. Williams, 131 Ind. 30, 30 N. E. 696; Union
Pac. Ry. Co. v. McColluni, 2 Kan. App. 319, 43 Pac. 97; Chicago, R. I. & P.
Ry. Co. v. McBride, 54 Kan. 172, 37 Pac. 978; Chicago & E. R. Co. v.
Luddington, 10 lud. App. 636, 38 N. E. 342; Cincinnati, N. O. & T. P. Ry. Co.
v. Barker, 94 Ky. 71, 21 S. W. 347.
is Smith, IS" eg. 149, 150.
16 DEFINITION AND ESSENTIAL ELEMENTS. (Ch . 1
the injury to plaintiff. The case follows Milwaukee & St. P. Ry. Co.
v. Kellogg, 14 although it is an extension of the principle therein de-
cided. In rendering its decision the court says: "In our opinion,
upon the evidence in this case, it was for the jury, and not the court,,
to say whether the negligence of the defendant was the proximate
cause of the burning of the Atkinson house. * * * The force of
the wind at the time, the dryness of the season, and the combustible
nature of the buildings intervening between the place where the fire
was kindled and the place where the plaintiff's house stood, were all
facts to be considered in determining whether there was a reasonable
probability that the fire would extend so far; and the jury must pass
upon these facts as bearing upon the question of reasonable prob-
ability." 15 The court then cites with approval the language of Dixon,
J., in Kellogg v. Chicago & N. W. Ry. Co., 16 as follows: "It will be
observed that the rule, as we find it laid down, and as we believe it
to be, is not that the injury sustained must be the necessary or un-
avoidable result of the wrongful act, but that it shall be the natural
and probable consequence of it, or one likely to ensue from it."
In Milwaukee & St. P. Ry. Co. v. Kellogg 1T the United States su-
preme court approve the language of the circuit court in instruct-
ing the jury as follows : "The question' always is, was there an un-
broken connection between the wrongful act and the injury, a con-
i*94 U. S. 469.
is Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. 764; Green
Ridge R. Co. v. Brinkman, 64 Md. 52, 20 Atl. 1024; Grain v. Railroad
Co., 1 N. D. 252, 46 N. W. 972; Potter v. Gas Co., 183 Pa. St. 575, 39 Atl. 7;
Denver, T. & G. R. Co. v. Robbins, 2 Colo. App. 313, 30 Pac. 261. But see
Pennsylvania Co. v, Whitlock, 99 Ind. 16; Louisville, X. A. & C. Ry. Co. v.
Nitsche, 126 Ind. 229, 26 N. E. 51.
1626 Wis. 223, at page 281.
IT 94 U. S. 469, repudiating the doctrine of Ryan v. Railroad Co., 35 N. Y.
210, and Pennsylvania R. Co. v. Kerr, 62 Pa, St. 353. But in a subsequent
case Scheffer v. Railroad Co., 105 U. S. 249 it was held that the suicide of
deceased "was not a result naturally and reasonably to be expected from the
injury received on the train. It was not the natural and probable conse-
quence, and could not have been foreseen in the light of the circumstances
attending the negligence of the officers in charge of the train." In this case
the injuries sustained by deceased, through defendant's negligence, produced
insanity leading to suicide. The ruling in Kellogg v. Railway Co. is, bow
ever, fully approved.
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 17
tinuous operation? Did the facts constitute a continuous succes-
sion of events, so linked together as to make a natural whole, or was
there some new and independent cause intervening between the
wrong and the injury? It is admitted that the rule is difficult of ap-
plication. But it is generally hel'd that, in order to warrant a find-
ing that negligence, or an act not amounting to w r anton wrong, is the
proximate cause of an injury, it must appear that the injury was the
natural and probable consequence of the negligence or wrongful act,
and that it ought to have been foreseen in the light of the attending
circumstances. * * * We do not say that even the natural and
probable consequences of a wrongful act or omission are in all cases
to be chargeable to the misfeasance or nonfeasance. They are not
when there is a sufficient and independent cause operating between
the wrong and the injury. * * * In the nature of things, there is
in every transaction a succession of events, more or less dependent
upon those preceding, and it is the province of a jury to look at this
succession of events or facts, and ascertain whether they are natu-
rally and probably connected with each other by a continuous se-
quence, or are dissevered by new 7 and independent agencies, and this
must be determined in view of the circumstances existing at the
time."
EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE-
DEFINITION.
5. Where an independent, efficient, "wrongful cause inter-
venes between the original wrongful act and the
injury ultimately suffered, the former, and not the
latter, is deemed the proximate cause of the injury.
Intervening Cause.
An efficient, intervening cause is a new proximate cause, which
breaks the connection with the original cause, and becomes itself
solely responsible for the result in question. It must be an inde-
pendent force, entirely superseding the original action, and rendering
its effect in the chain of causation remote. 1
5. i Louisville & X. R. Co. v. Kelsey, 89 Ala. 287, 7 South. 648; Pennsyl-
vania Co. v. \Vhitlock, 99 Ind. 16; Read v. Nichols, 118 N. Y. 224, 23 N. E.
BAR.NEG. 2
18 DEFINITION AND ESSENTIAL ELEMENTS. (Cll. 1
It is immaterial how many new elements or forces have been intro-
duced; if the original cause remains active, the liability for its result
is not shifted. 2 Thus, where a horse is left unhitched in the street,
468; Fairbanks v. Kerr, 70 Pa. St. 86; Scheffer v. Railroad Co.. 105 U. S.
249; Agnew v. Corunna, 55 Mich. 428, 21 N. W. 873; Smith v. Sherwood Tp.,
62 Mich. 159, 28 N. W. 806; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S.
469; Wellman v. Borough of Susquehanna Depot, 167 Pa. St. 239, 31 Atl. 566:
St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448, 62 N. W. 891; Texas & P.
Ry. Co. v. Woods, 8 Tex. Civ. App. 462, 28 S. W. 416; Pollard v. Railroad
Co., 87 Me. 51, 32 Atl. 735; .City of Peoria v. Adams, 72 111, App. 662; Willis
v. Armstrong Co., 183 Pa. St. 184, 38 Atl. 621; Childrey v. City of Huntington,
34 W. Va. 457, 12 S. E. 536; Schwartz v. Shull (W. Va.) 31 S. E. 914; St.
Louis, I. M. & S. Ry. Co. v. Maddry, 57 Ark. 306, 21 S. W. 472; Read v.
Nichols, 118 N. Y. 224, 23 N. E. 468. In Beall v. Athens Tp., 81 Mich. 536, 45
N. W. 1014, a horse driven by plaintiff shied at a log of wood, and, being struck
with the whip, tipped the buggy over, causing the injuries complained of. The
court says: "The important question in the case is whether the narrowness of
the highway and the neglect to place railings or barriers along it primarily
caused the accident. The township is only liable where the neglect complained
of was the proximate cause of the injury. If such neglect was the secondary
or remote cause, the township is not liable. The testimony shows conclu-
sively, and without contradiction, that the primary cause of the accident
arose from the horse taking fright at a log at the side of the road, and the
act of the driver in striking the horse a blow with his whip." The trial
court instructed the jury: "So it makes no difference what the horse got fright-
ened at, if the negligence of the township is the cause of the accident not be-
ing prevented." This was held error, for the reason that it loses sight of
the distinction between proximate and remote cause, the appellate court say-
ing: "An injury caused by negligence and an accident not being prevented by
negligence are very distinct in operation and effect."
2 Scott v. Shepherd, 2 W. Bl. 892, 3 Wils. 403 (squib case); City of Atchisou
v. King, 9 Kan. 550; Murdock v. Inhabitants of Warwick, 4 Gray (Mass.)
178; Lane v. Atlantic Works, 111 Mass. 136; Lake v. Milliken, 62 Me. 240;
Marble v. City of Worcester, 4 Gray (Mass.) 395; McMahon v. Davidson, 12
Minn. 357 (Gil. 232); Nagel v. Railway Co., 75 Mo. 653; Benjamin v. Railway
Co., 133 Mo. 274, 34 S. W. 590; Willis v. Publishing Co. (R. I.) 38 Atl. 947:
Jensen v. The Joseph B. Thomas, 81 Fed. 578; Gould v. Schermer, 101 Iowa,
582, 70 N. W. 697; Union Pac. Ry. Co. v. Callaghan. 6 C. C. A. 205, 56 Fed.
988; Mexican Nat. Ry. Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075; Stanton
v. Railroad Co., 91 Ala. 382, 8 South. 798; Murdock v. Walker, 43 111. App.
590; Gibney v. State, 137 N. Y. 1, 33 N. E. 142; Howe v. Ohmart. 7 Ind. App.
32, 33 N. E. 466; East Tennessee, V. & G. Ry. Co. v. Hesters, 90 Ga. 11,
15 S. E. 828; Same v. Hall, 90 Ga. 17, 16 S. E. 91; Johnson v. Telephone
Exch. Co., 48 Minn. 433, 51 N. W. 225; Chicago & N. W. Ry. Co. v. Prescott,
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 19
and unattended, and is maliciously frightened by a stranger, and
runs away. But for the intervening act he would not have run away,
and the injury would not have occurred; yet it was the negligence
of the driver in the first instance which made the runaway possible.
This negligence has not been superseded or obliterated, and the driver
is responsible for the injuries resulting. 3 If, however, the interven-
ing, responsible cause be of such a nature that it would be unreason-
able to expect a prudent man to anticipate its happening, he will not
be responsible if damage results solely from the intervention. 4 The
intervening cause may be culpable, intentional, or merely negligent. 5
Co-operating Cause.
It is the universal rule that where an intelligent, wrongful cause
co-operates or concurs with the act complained of to produce the in-
jury, no matter what the degree of its causation may be, it in no way
relieves the defendant from legal responsibility. 6 Thus, where de-
8 C. C. A. 109, 59 Fed. 237; Cairncross v. Village of Pewaukee, 86 Wis. 181,
56 N. W. G48; Union Pac. Ry. Co. v. Callaghan. 6 C. C. A. 205, 56 Fed. 988;
Elder v. Coal Co., 157 Pa. St. 490, 27 Atl. 545, 33 Wkly. Notes Cas. 333;
City of Albany v. Watervliet Turnpike & Railroad Co., 76 Hun, 136, 27
N. Y. Supp. 848; Mexican Nat. Ry. Co. v. Mussette, 86 Tex. 708, 26 S. W.
1075; Berg v. Railway Co., 70 Minn. 272, 73 N. W. 648; Meade v. Railway
Co., 68 Mo. App. 92; Gardner v. Friederich, 25 App. Div. 521, 49 N. Y. Supp.
1077; Murdock v. Walker, 43 111. App. 590.
3 McCahill v. Kipp, 2 E. D. Smith (X. Y.) 413.
* Parker v. City of Coboes, 10 Hun, 531 (excavation properly guarded, and
barriers removed in the night by third party); Carter v. Towne, 103 Mass.
507; Davidson v. Nichols, 11 Allen (Mass.) 514.
s Pennsylvania Co. v. Whitlock, 99 Ind. 16; Otten v. Cohen (City Ct. N. Y.)
1 N. Y. Supp. 430; Scheffer v. Railroad Co., 105 U. S. 249; Kitteringham v.
Railway Co., 62 Iowa, 285, 17 N. W. 585; McClary v. Railroad Co., 3 Neb. 44;
Louisville & N. R. Co. v. Guthrie, 10 Lea (Term.) 432; West Mahonoy Tp. v.
Watson, 116 Pa. St. 344, 9 Atl. 430.
s Martin v. Iron Works, 31 Minn. 407, 18 N. W. 109; Atkinson v. Trans-
portation Co., 60 Wis. 141, 18 N. W. 7G4; Eaton v. Railroad Co., 11 Allen
(Mass.) 500; Delaware, L. & W. R. Co. v. Salmon, 39 N. J. Law, 299; Hunt
v. Railroad Co., 14 Mo. App. 160; Liming v. Railroad Co., 81 Iowa, 246, 47
X. W. 66; Johnson v. Telephone Exch. Co., 48 Minn. 433, 51 N. W. 225;
Wilder v. Stanley, 65 Vt 145, 26 Atl. 189; McKenna v. Baessler, 86 Iowa, 197,
53 N. W. 103; Board of Com'rs of Boone Co. v. Mutchler. 137 Ind. 140, 36
N. E. 534; Postal Tel. Cable Co. v. Zopfi, 93 Tenn. 309, 24 S. W. 633; Id.,
19 C. C. A. 605, 73 Fed. 009; Jung v. Starin, 12 Misc. Rep. 362, 33 N. Y. Supp.
20 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
fendant negligently piled a quantity of smokestacks and other ma-
terial near the track of a railroad company, and, a train coming
along, one of the cars caught one of the stacks, pushed it against a
tower, in which plaintiff was stationed in his employment of signaling
trains, and he was injured, the defendant was held liable, although
the railroad company may also have been negligent in running its
trains; the danger of contact with the pile of smokestacks being evi-
dent. 7 The court, in its opinion, says: "If piling the material near
the track was a negligent act, it was negligence not only as to the
railroad company, whose property and trains might be endangered
thereby, but also as to all persons who might probably be put in
danger from its probable consequences. * * * It was for the jury
to say whether an ordinarily prudent person would have foreseen that
so piling the material made liable to happen the very things that did
happen, to wit, that a passing train should catch or push or carry tho
material against the tower, so as to endanger any one stationed in
it." 8 In a recent Wisconsin case, 9 however, where two fires united,
either one of which would have destroyed plaintiff's property, a novel
doctrine is laid down: "When a cause set in motion by negligence
reaches to the result complained of in a line of responsible causation,
and another cause, having no responsible origin, reaches it at the
same time, so that what then takes place would happen as the effect
of either cause, entirely regardless of the other, then the consequence
' cannot be said with any degree of certainty to relate to negligence as
its antecedent." But the court concludes that, if each fire had been
caused by a responsible person, the liability would have been joint
and several, "because, whether the occurrence be intentional, actual,
or constructive, each wrongdoer in effect adopts the conduct of his co-
actor, and for the further reason that it is impossible to apportion the
650; Chicago, R. I. & P. Ry. Co. v. Sutton, 11 C. C. A. 251, 63 Fed. 394;
South Bend Mfg. Co. v. Liphart, 12 Ind. App. 185, 39 N. E. 90S; Waller v.
Railway Co., 59 Mo. App. 410, 1 Mo. App. Rep'r, 56; McClellan v. Railway
Co., 58 Minn. 104, 59 N. W. 978; Gould v. Schermer, 101 Iowa, 582, 70 X. W.
697; Connelly v. Rist, 20 Misc. Rep. 31, 45 N. Y. Supp. 321.
T Martin v. Iron Works, 31 Minn. 407, 18 N. W. 109.
s Martin v. Iron Works, 31 Minn. 407, 18 N. W. 109.
Cook v. Railway Co., 97 Wis. 624, 74 N. W. 561; Marvin v. Railway Co.,
79 Wis. 140, 47 N. W. 1123; Pierce v. Michel, 1 Mo. App. Rep'r, 74; fcituue \\
Railroad Co., 171 Mass. 536, 51 N. E. 1.
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 21
damage, or to say that either perpetrated any distinct injury that can
be separated from the whole."
Distinction between Cause and Condition.
Cause implies a responsible human agent, capable of making a de-
liberate choice. Take away this power of volition to influence his
own conduct, and he becomes a mere automaton, another form of
matter, a natural force or a condition. 10 It follows that, if choice
and volition cannot be exercised by such an agent, neither blame nor
civil liability should attach to his acts. Such irresponsible agents
are: Insane persons, infants, 11 or those under duress. 12 They may
be regarded as conditions only, or as states of nature; and a mere
condition cannot divert or relieve a rational agent from responsi-
bility. 13
"Inevitable Accident." "Act of God."
"Inevitable accident" and "act of God" introduce no new elements
into the consideration of this branch of the subject. They are merely
convenient "catch-words" for designating a class of cases in which the
conditions indicated by these phrases are factors, more or less potent,
in determining liability. They are generally used of extraordinary
exhibitions of natural forces, extraordinary either in point of the
time of their occurrence or their severity; as of snow, rain, wind,
thunder and lightning. It is sometimes said that the term "act of
God," in legal phraseology, emphasizes the occurrence as opposed to
human will; but we think this idea is misleading, and tends to con-
vey the impression that when, in this class of cases, a man is released
from responsibility, it is because his will and efforts must necessarily
be unavailing when opposed to the Deity. All natural phenomena
but emphasize the laws which they exemplify, and the observation
of these laws in daily life is essential to the discharge of the most or-
10 Whart. Neg. 87.
11 Coombs v. Cordage Co., 102 Mass. 572; Chicago & A. R. Co. v. Gregory,
58 111. 220.
12 Johnson v. Railroad Co., 70 Pa. St. 357; Scott v. Hunter, 46 Pa. St. 192.
is Salisbury v. Herchenroder, 106 Mass. 458; Woodward v. Aborn, 35 Me.
271; Jensen v. The Joseph B. Thomas, 81 Fed. 578; McFarlaue v. Town of
Sullivan, 99 Wis. 361, 74 X. W. 559; City of Atchison v. King. 9 Kan. 550
(sidewalk defective, and coated with ice; the condition concurs with the neg-
lijroiifp to produce in.iury. but the persons responsible for the condition of the
road are liable); Dickinson v. Boyle, 17 Pick. (Mass.) 78.
22 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
diuary duties. A man is presumed to intend the natural conse-
quences of his acts, and "natural," in this sense, includes the opera-
tion of cosmic law. But our knowledge of certain natural laws as
those controlling meteorological conditions is at present limited, and
our responsibility should cease when our well-considered acts con-
duce to injury through a manifestation of natural law which is so un-
usual as to lie practically outside the pale of experience. It is in this
sense only that a so-called "act of God" is of importance in determin-
ing the question of liability.
Where defendant negligently left a wire connecting plaintiff's build-
ing with another, which stood on elevated land, and on which was a
pole about 25 feet high, and plaintiff's building was burned by reason
of the lightning striking the pole, and being thence conducted along
the wire, the court said: "The further argument is made that the
stroke of lightning was the 'act of God,' for which no one is responsi-
ble. Certainly a stroke of lightning is an 'act of God'; but that is
not the question here presented, or, rather, another element i. e.
the negligence of man is added to the question, which materially
alters its scope. If I, owning a high mast or building, which I know
is so situated as to be likely to be struck by lightning, construct an
attractive path for the lightning to my neighbor's roof, so that his
house is destroyed by a bolt which strikes my mast or building, shall I
escape liability for my negligent or wrongful act by pleading that the
lightning was the act of God? Certainly not. I invited the stroke
of one of the most destructive powers of nature, and negligently
turned its course to my neighbor's property. * * * The lightning
stroke is in no greater degree the act of God than the usual freshets
occurring in a river." 14 It follows that a natural occurrence, extraor-
dinary either in point of season or severity, is available for purposes
of defense in an action for negligence only in so far as its unusual
character may serve to negative any presumption of negligence in the
conduct of the defendant.
For purposes of convenience the following propositions may be
formulated:
When an act, either negligent or nonnegligent, is followed by, but
not connected with, an extraordinary natural occurrence or accident,
i* Jacksou v. Telephone Co., 88 Wis. 243, 60 N. W. 430.
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 23
which alone produces injury, the occurrence becomes the proximate
cause, and, of course, no liability results to the original actor. 15
When a negligent or wrongful act is followed by an extraordinary
natural occurrence, which connects the act with consequent injury,
the wrongdoer is still liable; and this is true even if the original negli-
gent act, without the concurrence of the natural phenomenon, would
not in itself have produced harm. 16
is Wald v. Railroad Co., 162 111. 545, 44 N. E. 888 (Johnstown flood); In-
ternational & G. N. R. Co. v. Hynes, 3 Tex. Civ. App. 20, 21 S. W. 622; Black
v. Railroad Co., 30 Neb. 197, 46 N. W. 428; Blythe v. Railway Co., 15 Colo.
333, 25 Pac. 702; Smith v. Railway Co., 91 Ala. 455, 8 South. 754; Norfolk &
W. R. Co. v. Marshall's Adni'r, 90 Va. 836, 20 S. E. 823. Horse takes fright,
and runs away, and injury is caused by contact with defect in highway or
bridge; town not liable. Davis v. Inhabitants of Dudley, 4 Allen (Mass.) 557,
and Moulton v. Inhabitants of Sandford, 51 Me. 127. In Baltimore & O. R,
Co. v. Sulphur Springs Independent School Dist, 96 Pa. St. 65, a defective
culvert, not sufficient to carry off water in a flood. Green, J.: "If the act of
God in this particular case was of such an overwhelming and destructive
character as, by its own force, and independently of the particular negligence
alleged or shown, produced the injury, there would be no liability, though there
was some negligence in the maintenance of the particular structure." Nitro-
Phosphate & O. C. Manure Co. v. London & St. K. Docks Co., 9 Ch. Div. 503;
River Wear Com'rs v. Adamson, 2 App. Gas. 743; Blyth v. Waterworks Co.,
11 Exch. 781. Withers v. Railway Co., 3 Hurl. & N. 969: Held, that the
company was not bound to have constructed their embankment so as to meet
such extraordinary floods. International & G. N. R. Co. v. Halloren, 53 Tex.
46; Salisbury v. Herchenroder, 106 Mass. 458. But it is not error to refuse
to charge that defendant was not liable if his sign, whose fall injured plaintiff,
fell by the act of God, the strongest testimony in support of that hypothesis
being that it fell on a windy day in March. St. Louis, I. M. & S. Ry. Co. v.
Hopkins, 54 Ark. 209, 15 S. W. 610. Where a building fell during a violent
storm that wrecked other neighboring buildings, and there was evidence tend-
ing to show that building was unsafe, held, that fall of building would be pri-
marily attributed to storm, and burden rested on plaintiff to show unfitness
of building. Turner v. Haar, 114 Mo. 335, 21 S. W. 737.
is Palmer v. Inhabitants of Andover, 2 Cush. (Mass.) 600; Savannah, F. &
W. Ry. Co. v. Commercial Guano Co., 103 Ga. 590, 30 S. E. 555; Rich-
mond & D. R. Co. v. White, 88 Ga, 805, 15 S. E. 802; Adams Exp. Co. v. Jack-
sou, 92 Tenn. 326, 21 S. W. 666; Lang v. Railroad Co., 154 Pa. St. 342. 26
Atl. 370; Gleeson v. Railway Co., 140 U. S. 435, 11 Sup. Ct. 859; Detzur v.
Brewing Co. (Mich.) 77 N. W. 948; Tyler v. Ricamore, 87 Va. 466, 12 S. E. 799;
Salisbury v. Herchenroder, 106 Mass. 458 (swinging sign, contrary to ordi-
nance, blown down by severe gale); Woodward v. Aborn, 35 Me. 271; Lords
24 DEFINITION AND ESSENTIAL ELEMENTS. (Cil. 1
When an act is followed by and connected with an extraordinary
natural occurrence, which alone produces injury, the character, unsea-
sonableness, and degree of severity of the phenomenon may be con-
sidered in determining whether the original act was negligent or
not. 17 A person's legal duty does not obligate him to govern his con-
duct with a view to guarding against every possible contingency.
He must use the reasonable care of an ordinarily prudent person in
similar circumstances, the circumstances being essential to the deter-
mination of the requisite degree of care. Thus, although water con-
. Bailiff-Jurats of Roniney Marsh v. Trinity House, L. R. 5 Exch. 204; Davis
v. Garrett, 6 Bing. 716; Dickinson v. Boyle, 17 Pick. (Mass.) 78. Where the
fall of a railroad bridge is caused by an act of God, as a cloudburst, an em-
ploy6 cannot hold the company liable unless its negligence, to an extent
amounting to want of ordinary care, contributed to the disaster. Rodgers v.
Railroad Co., 67 Gal. 607, 8 Pac. 377. But where extraordinary occurrence con-
curs with negligent delay of defendant, authorities do not agree as to liability.
The following are against liability: Morrison v. Davis, 20 Pa. St. 171; Denny v.
Railroad Co., 13 Gray (Mass.) 481; Daniels v. Ballantine, 23 Ohio St. 532; Du-
buque Wood & Coal Ass'n v. City and County of Dubuque, 30 Iowa, 176 (com-
pare this case with Scott v. Hunter, 46 Pa. St. 192, and Dickinson v. Boyle, 17
Pick. [Mass.] 78); McOlary v. Railroad Co., 3 Xeb. 44; Memphis & C. R. Co. v.
Reeves, 10 Wall. 176; Hoadley v. Transportation Co., 115 Mass. 304. The
following hold defendant liable where negligent delay concurs with extraordi-
nary occurrence to produce injury: Republican Val. R. Co. v. Fink, 18 Xeb.
89, 24 X. W. 691 (in this case an improperly constructed embankment gave
way in an unusual flood); Conflict v. Railway Co., 54 N. Y. 500; Michaels v.
Railroad Co., 30 X. Y. 564. Where a wire was negligently placed, and at-
tracted lightning, setting fire to a house, "act of God" was held no defense,
Jackson v. Telephone Co., 88 Wis. 243, 60 X. W. 430. In Austin v. Steamboat
Co., 43 X. Y. 75, the court says: "A party cannot avail himself of the defense
of 'inevitable accident,' who, by his own negligence, gets into a position which
renders the accident inevitable." Titcomb v. Railroad Co., 12 Allen (Mass.)
254. And where a load of cotton was delayed in railroad yard half an hour,
when a break in machinery caused fire and loss of cotton, it was held that
the breakage of machinery, coupled with the delay, constituted the proximate
cause. Deming v. Storage Co., 90 Tenn. 306, 17 S. W. 89.
17 Where an unusual frost burst water pipes laid according to law. Blyth
v. Waterworks Co., 11 Exch. 781. Fall of a railroad bridge, caused by a cloud-
burst Rodgers v. Railroad Co., 67 Cal. 607, 8 Pac. 377; Withers v. Rail-
road Co., 3 Hurl. & N. 969 (in this case the court held "the company was no?
bound to have a line constructed so as to meet such extraordinary floods");
City of Clay Centre v. Jevons, 2 Kan. App. 568. 44 Pac. 745; Kincaid v. Rail-
way Co., 1 Mo. App. Rep'r, 543, 62 Mo. App. 365.
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 25
fined in a large body by a dam becomes a very dangerous instru-
mentality, requiring the exercise of a very high degree of care, rea
sonable prudence does not demand that the dam shall be so con-
structed as to be absolutely safe, and to withstand the pressure of an
unprecedented volume of water, caused by an extraordinary flood. 18
But the unusual character, unseasonableness, and severity of the
flood are proper matters for consideration in determining whether
the dam was constructed with reasonable care and skill. 19
Concurring Negligence.
If the concurrent negligence of two or more persons results in in-
jury to a third, he may maintain an action for damage against either
or all. 20 A common illustration of this principle is found in the fre-
quent suits brought against municipal corporations for damages
caused by defects in the highway, which defective conditions were
brought about by the acts of third persons. 21
In all cases where the negligence of two or more persons concurs to
is Withers v. Railroad Co., 3 Hurl. & IS 7 . 969.
i Id.
20 Eaton v. Railroad Co., 11 Allen (Mass.) 500; Lockhart v. Lichtenthaler.
46 Pa. St. 151; Congreve v. Morgan, 18 X. Y. 84; Ricker v. Freeman, 50 X.
H. 420; Wheeler v. City of Worcester, 10 Allen (Mass.) 501; Chapman v.
Railroad Co., 19 N. Y. 341; Barrett v. Railroad Co., 45 X. Y. 628; McMahon
v. Davidson, 12 Minn. 357 (Gil. 232) ; Griggs v. Fleckenstein, 14 Minn. 81 (Gil.
62); Lynch v. Xurdin. 1 Q. B. 29; Illidge v. Goodwin, 5 Car. & P. 190; Me-
Cahill v. Kipp, 2 E. D. Smith (X. Y.) 413; South Bend Mfg. Co. v. Liphart, 12
Ind. App. 185, 39 X. E. 908; Quill v. Telephone Co., 13 Misc. Rep. 435, 34
X. Y. Supp. 470; Waller v. Railway Co., 59 Mo. App. 410; McClellan v. Rail-
road Co., 58 Minn. 104, 59 X. W. 978; Lake Shore & M. S. Ry. Co. v. Mc-
Intosh, 140 Ind. 261, 38 X. E. 476; Connelly v. Rist, 20 Misc. Rep. 31, 45 X.
Y. Supp. 321; Jung v. Starin, 12 Misc. Rep. 362, 33 X. Y. Supp. 650; Chicago,
R. I. & P. Ry. Co. v. Sutton, 11 C. C. A. 251. 63 Fed. 394; Galveston, H. &
S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App. 160, 25 S. W. 486; Wolff Mfg. Co.
v. Wilson, 46 111. App. 381; Wilder v. Stanley, 65 Vt 145, 26 Atl. 189; Kan-
sas City, M. & B. R. Co. v. Burton, 97 Ala. 240, 12 South. 88; Gardner v.
Friederich. 25 App. Div. 521, 49 X. Y. Supp. 1077; Pratt v. Railway Co.,
107 Iowa, 287, 77 X. W. 1064. And see ante, "Co-operating Cause," p. 19.
21 Xorristown v. Moyer, 67 Pa. St. 355; City of Lowell v. Spaulding. 4
Cush. (Mass.) 277; Mayor, etc., of Baltimore v. Peudleton, 15 Md. 12; Wil-
lard v. Xewbury, 22 Vt. 458; Hammond v. Town of Mukwa, 40 Wis. 35;
Veazie v. Railroad Co., 49 Me. 119; Welle Dine v. Inhabitants of Leeds, 51 Me.
313; Currier v. Inhabitants of Lowell, 16 Pick. (Mass.) 170; Preutiss v. Bos-
26 DEFINITION' AND ESSENTIAL ELEMENTS. (Cll. 1
produce the injury complained of, the law disregards the relative
importance of the different acts as affecting the result, 22 although, if
the injuries resulting from the distinct acts of negligence are separa-
ble, the damage may be apportioned correspondingly. 23 Thus, where
the steamboat of defendant negligently set fire to piles of shavings
which had been allowed to accumulate about the planing mill of B.,
from which the fire spread to the planing mill, and thence, after de-
stroying many intervening houses, to the property of plaintiff, situate
nearly a mile distant from the planing mill, it appeared that the owner
of the planing mill had been negligent in allowing the shavings and
sawdust to accumulate about his mill, and it was claimed by defend-
ant that this negligence of the mill owner was such an intervening
cause between the negligence of defendant and the final destruction
of plaintiff's house that its destruction must be, in law, attributed
to such intervening cause. In disposing of this point the court says:
"Whether we consider the negligence of the owners of the planing
mill as an interposition before or concurrently with the negligence
of the defendant in producing the damage, it is no defense to the plain-
tiff's action. * * * In one sense the negligence of the owner of
the planing mill was concurrent with the negligence of the defendant.
The negligence of the owner of the mill was a continuing negligence ;
it was present and acting at the time of the negligence of the defend-
ant; it aided in kindling the fire and spreading it to the mill, and from
that to the surrounding buildings." 24
ton, 112 Mass. 43; Elliot v. Concord, 27 N. H. 204; Town of Centerville v.
Woods, 57 Ind. 192; Thuringer v. Railroad Co., 82 Hun, 33, 31 N. Y. Supp. 419.
2 2 Hunt v. Railroad Co., 14 Mo. App. 160; Eaton v. Railroad Co., 11 Allen
(Mass.) 500; Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. 764; Mar-
tin v. Iron Works, 31 Minn. 407, 18 X. W. 109; Delaware, L. & W. R. Co. v.
Salmon, 39 N. J. Law, 299; Chicago, R. I. & P. Ry. Co. v. Sutton, 11 C. C. A.
251, 63 Fed. 394; Galveston, H. & S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App,
160, 25 S. W. 486.
23 Nitro-Phosphate & O. C. Manure Co. v. London & St K. Docks Co., 9 Ch.
Div. 503. In this case the apportionment was made where the injury was
caused in part by negligence of defendant and in part by act of God.
2* Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. 764. And see
generally on same point: Bartlett v. Gaslight Co., 117 Mass. 533; Ricker v.
Freeman, 50 X. H. 420; Lake v. Milliken, 62 Me. 240; Small v. Railroad Co.,
55 Iowa, 582, 18 N. W. 437; Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62);
Pastene v. Adams, 49 Cal. 87; Lane v. Atlantic Works, 107 Mass. 104; Pow-
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 27
Degrees of Care.
Under the Roman law, negligence or "culpa" was divided into three
distinct classes: "Culpa levis," "culpa," and "culpa lata"; and these
three terms were respectively co-ordinated with the duty whose
breach was under consideration. If the duty demanded was of an
imperative nature, its breach was determined by an act or omission
involving only slight negligence, or culpa levis. If of an ordinary
kind, demanding only normal or average prudence, very slight negli-
gence was insufficient to establish liability. The act or omission
must involve more than culpa levis; it must involve culpa; while a
breach of duty of the lightest nature must be attended with culpa lata,
or a flagrant disregard of the rights of the aggrieved party.
For the purpose of further classifying the kinds of duty whose
breach and attendant negligence was under consideration, the duties
were divided into three groups: When the transaction was for the
benefit of (1) the performer, (2) of both parties, and (3) for the per-
formee only. Under the first division, where the transaction was
carrried on for the benefit of the performer, the other party being
only in the capacity of an auxiliary, and not sharing in the antici-
pated profit or advantage, the policy of their law decreed that the per-
former should take the greatest possible care not to injure the other
party, and was accordingly held accountable for culpa levis. Under
the second division, where both parties were equally interested in
the prosecution of the work, and would share in the result, it was
considered that the performer had discharged his duty if he used
ordinary care, and was, therefore, held responsible for culpa only.
In the third division, where the work was for the exclusive benefit
of the third party, its prosecution promising no advantage to the
performer, slight care w r as held to satisfy the requirements of the
ell v. Deveney, 3 Cush. (Mass.) 300; Weick v. Lander, 75 111. 93; Delaware,
L. & W. R. Co. v. Salmon, 39 N. J. Law, 309; Orandall v. Transportation
Co., 16 Fed. 75; Stetler v. Railway Co., 4*5 Wis. 497, 1 N. W. 112; Oil City
Gas Co. v. Robinson, 99 Pa. St. 1; Lynch v. Xurdin, 1 Q. B. 29; Pierce v.
Michel, 1 Mo. App. Rep'r, 74; Benzing v. Steinway, 101 N. Y. 547, 5 N. E.
449; Phillips v. Railroad Co., 127 N. Y. 657, 27 N. E. 978; St. Louis Bridge
Co. v. Miller, 138 111. 465, 28 X. E. 1091; Ry lands v. Fletcher, L. R. 3 H. L. 330;
Child v. Hearn, L. R, 9 Exch. 183; Illidge v. Goodwin, 5 Car. & P. 190; Davis
v. Garrett. 6 Bing. 716; Greenland v. Chaplin, 5 Exch. 243.
28 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
relation, and the beneficiary was required to show gross negligence,
or culpa lata, to entitle him to recover.
The most noted jurists of both ancient and modern times have
devoted much time and ability to theoretical discussions of the
degrees of care, or its co-ordinate, negligence, recognized by courts
of law. Of all recent discussions of the doctrine of degree of care
as associated with negligence that of Dr. Wharton is easily the
most scholarly and exhaustive, and to this eminent writer is cer-
tainly due the credit of clearing up much of the uncertainty, and
removing many of the errors, that have hung about the modern
acceptation of the old Roman doctrine. 28
It is not within the scope of this work to devote time and space
to the consideration of theories, however interesting, except in so
far as such consideration may seem necessary to a clear understand-
ing of the principles involved as they are found in the practical
treatment of cases of negligence by our courts to-day. It seems,
however, that we could not properly proceed to the practical con-
sideration of the subject without calling attention to one of the
conclusions reached by Dr. Wharton, and in which we have the
temerity to differ from that learned jurist. He concludes, after an ex-
haustive discussion of the matter, involving deep research, that under
the Aquilian law but two degrees of care or negligence were rec-
ognized, and that the conditions existing to-day are not so altered
as to require the addition and recognition of a third degree by our
courts. The two degrees of care which he recognizes are: (1)
The degree of care to be required of one who is not, and does not
profess to be, a good man of business, or an expert in the affairs
under consideration; (2) the degree of care or prudence to be ex-
ercised by and required of the man who actually has, or professes
to have, expert knowledge of the particular kind of business in-
volved. For purposes of distinction he would term the degree of
care for which the first class should be held responsible "slicrht care" ;
that for which the second class should be held responsible "ordinary
care." By this system of grouping he would not hold any person
or class of persons responsible for the exercise of extreme, or even
great, care, his test of degree in the highest class being the kind of
care used by an expert in that particular kind of business; and
20 Whart. Neg. 27 et seq.
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 29
this, in turn, would be measured by what is customary among his
compeers in the same avocation or trade. With all due deference
to the ability of this writer, it seems to us that the insufficiency of
this limited and exclusive division must become apparent in con-
sidering the development of the law of negligence within the pres-
ent century in one line of cases, that of the liability of common
carriers for injuries inflicted on passengers.
It may be taken as the settled law of this country, at least, that
a common carrier of persons is responsible for an injury arising
through any flaw or defect in the appliances used, whose existence
could have been foreseen or detected by any known test. 26 In
other words, the settled law requires the utmost possible degree
of care known to human skill and intelligence. To this, in defense
of Dr. Wharton's division, it may be replied that this extreme de-
gree of care is nothing more than "ordinary" and "usual" among
experts engaged in constructing and operating railroads and steam-
boats. But it is not necessary to go back to any remote period in
the history of this class of decisions to ascertain that it is the
decisions of the courts themselves that have raised the degree of
skill and care to its present supreme elevation, and that the court*
in making these same decisions, were urged by consideration for
the safety of the public to go far beyond what was then customary
among experts in this line of business. Inventions to prevent and
tests to disclose latent defects in castings were in existence, and
their employment was required by the courts, long before they were
in such general use as to authorize its description by the word
"customary." This point is strongly and tersely stated by one of the
ablest works on this subject: 27 "The modern demand for the ex-
ercise of what is often called 'the utmost care' is largely due to the
essentially modern regard for human life and the development of
applied science. It is only within a very recent period that life
has been considered more sacred than property, and, side by side
26 Carroll v. Railroad Co., 58 X. Y. 126; Ingalls v. Bills, 9 Mete. (Mass.> 1;
Caldwell v. Steamboat Co., 47 N. Y. 282; Meier v. Railroad Co., 64 Pa. St. 225;
Hegenian v. Railroad Corp., 13 N. Y. 9; Pennsylvania Co. v. Roy, 102 U. S,
451; Palmer v. Canal Co., 120 N. Y. 170, 24 X. E. 302; Texas & P. Ry. Co.
v. Hamilton, 66 Tex. 92, 17 S. W. 406; Louisville, N. A. & C. Ry. Co. v. Sny-
der, 117 Ind. 435. 20 X. E. 284.
27 Shear. &. II. Xeg. (4tli Ed.) 46.
30 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1
with the growth of the feeling, there has been a wonderful exten-
sion of human powers by means of new inventions. In ancient
times it would have seemed preposterous to claim a greater degree
of care for the preservation of the life of a slave than for the statue
of an emperor, and it would have seemed the height of tyranny to
hold any man of business to a degree of care which no one in that
business had ever displayed, and to require him to do that which
every one in the business believed to be impossible. But in our own
time legislatures have absolutely forbidden gas companies to cast
their refuse into rivers, although these companies unanimously de-
clared with entire sincerity that they could not conduct their busi-
ness at all in any other way. So legislatures have compelled man-
ufacturers to consume their own smoke, although none of them
knew how to do it. And the result in these and other cases has
fully vindicated the wisdom of the stern legislation. When the
factories were compelled to consume their own smoke, their own-
ers paid inventors to devise a method of doing so. When gas com-
panies were threatened with ruin if they could not dispose of their
refuse, they paid the cost of experiments which resulted in the in-
vention of aniline colors, and increased the wealth of the gas com-
panies themselves, while putting an end to an intolerable nuisance,
which they had always declared to be unavoidable. In the light
of such experiences the courts are justified in holding those who
take charge of the lives of human beings to any degree of care
which is not incompatible with the transaction of business, espe-
cially when its practicability has been demonstrated by its adop-
tion in that business by the most careful class of persons." 28
It must appear on the most casual consideration that in deter-
mining the liability of carriers for injuries to passengers the courts
have required a degree of care certainly not usual among experts in
the carrying business, and in many instances without precedent. 29
It appears, then, that at least three distinct degrees of care must
be recognized, viz.:
28 Fleet v. Hollenkemp, 13 B. MOD. (Ky.) 219. "Extraordinary diligence is
required as to passengers, and the company is responsible for the utmost care
and watchfulness, and answerable for the smallest negligence." Sandham v.
Railroad Co., 38 Iowa, at page 90; McGrew v. Stone, 53 Pa. St. 436.
28 Cf. "Carriers of Passengers," post, pp. 175-213.
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 31
Same Slight Care.
Such as is required in the transaction of daily duties by the
average person, and when the obligor has not assumed unusual
responsibilities by voluntary action, 30 as by the purchase of a dan-
gerous animal, the damming up of water, or the confinement of
steam, or the use of fire. Within this class would fall the degree
of care required of a person driving on the public road and observ-
ing the law of the road, excavating on his own premises, 31 owning
a ruinous and deserted house, 32 or of a bailee when the bailment is
for the sole benefit of the bailor. 88
Same Ordinary Care.
The care proportionate to the responsibility assumed, as carry-
ing a loaded gun; 34 where a bailment is for the mutual advantage
of the parties, as the hirer of a horse, who is liable for ordinary
care and skill in driving him, 35 or one hired to drive a horse. 36
The degree of care requisite in operating trains within municipal
limits to avoid injury to persons at highway crossings falls within
this class. Statutory signals should be given; gates operated, if
required; engineers and trainmen at their posts, closely observant
of the track and crossings; the regulation rate of speed observed;
and in fact every precaution taken commensurate with the lia-
bility to injure members of the public incident to running a train
of cars through a city or village. 37 In the construction of a dam
so Earing v. Lansingh, 7 Wend. (N. Y.) 185; Daniels v. Clegg, 28 Mich. 32.
si Gillespie v. McGowan, 100 Pa, St. 144; Lorenzo v. Wirth, 170 Mass. 596,
49 X. E. 1010; Ratte v. Dawson, 50 Minn. 450, 52 N. W. 965; Ennis v. My-
ers, 29 App. Div. 382, 51 N. Y. Supp. 550; Dobbins v. Railway Co., 91 Tex. 60,
41 S. W. 62; Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656.
32 Lary v. Railroad Co., 78 Ind. 323.
33 Coggs v. Bernard, 2 Ld. Raym. 909; Whitney v. Lee, 8 Mete. (Mass.) 91;
Spooner v. Mattoon, 40 Vt 300.
** Tally v. Ayres. 3 Sneed (Tenn.) 677.
35 Mooers v. Larry, 15 Gray (Mass.) 451; Purnell v. Minor, 49 Neb. 555,
68 X. W. 942.
se Newton v. Pope, 1 Cow. (X. Y.) 109.
37 Frick v. Railway Co., 75 Mo. 595; Illinois Cent R. Co. v. McCalip (Miss.)
25 South. 166; Baker v. Railroad Co. (Mo. Sup.) 48 S. W. 838; San Antonio
& A. P. Ry. Co. v. Peterson (Tex. Civ. App.) 49 S. W. 924; Lake Shore &
M. S. Ry. Co. v. Boyts, 16 Ind. App. 640, 45 X. E. 812; Stevens v. Railway
Co., 67 Mo. App. 356; Washington S. Ry. Co. v. Lacey, 94 Va. 460, 2G S. E.
32 DEFINITION AND ESSENTIAL ELEMP:NTS. (Oh. 1
or reservoir the work should be done in such a manner as a dis-
creet and prudent man understanding the circumstances and the
liability to cause damage to adjacent lands would have performed
it, and it is not necessary that it should be built in the strongest
and most skillful way. 38
Same Great Care.
That degree of attention and prudence exercised by the class of
persons possessing the highest qualifications of skill and diligence
in the line of business under consideration. It is not the care be-
stowed on the matter in hand by the most skilled member of the
craft or occupation, but by the class composed of the most skilled
members. In this age of wonderful scientific progress and inven-
tion it would be unreasonable that liability should attach for fail-
ure to employ some newly-discovered device or process scarcely
past the experimental stage, and whose efficacy and practicability
had been determined and adopted by only one person. How gen
eral the use must be in order to establish a class must be deter-
mined by the circumstances of each case, the nature of the busi-
ness under discussion, and the number of persons engaged in its
prosecution. To illustrate: A practical test for discovering flaws
in iron castings would be of such general and wide-spread utility,
834; Cookson v. Railway Co., 179 Pa. St. 184, 36 Atl. 194; Iron Mountain R.
Co. v. Dies, 98 Tenn. 655, 41 S. W. 860; Walter v. Railroad Co., 6 App. D.
C. 20; Pinney v. Railway Co., 71 Mo. App. 577; Cleveland, C., C. & St. L,
Ry. Co. v. Doerr, 41 111. App. 530; Johnson v. Railway Co., 2 Tex. Civ. App.
139, 21 S. W. 274; Alabama G. S. R. Co. v. Anderson, 109 Ala. 299, 19 South.
516;' Chicago, M. & St. P. Ry. Co. v. Walsh, 157 111. 672, 41 N. E. 900; Den
ver & R. G. R. Co. v. Ryan, 17 Colo. 98, 28 Pac. 79.
ss Hoffman v. Water Co., 10 Cal. 413; Wolf v. Water Co., Id. 541. See
generally, as defining "ordinary care," Chicago City Ry. Co. v. Dinsmore, 162
111. 658, 44 N. E. 887; Paris, M. & S. P. Ry. Co. v. Nesbitt (Tex. Civ. App.) 38
S. W. 243; Graham v. Town of Oxford, 105 Iowa, 705, 75 N. W. 473; New
Orleans & X. E. R. Co. v. McEwen & Murray, 49 La. Ann. 1184, 22 South.
675; Brown v. Bank (N. H.) 39 Atl. 336; Beck v. Hood, 185 Pa. St. 32, 39
Atl. 842; Houston & T. O. R. Co. v. Sgalinski (Tex. Civ. App.) 46 S. W. 113;
Heunesey v. Railroad Co., 99 Wis. 109, 74 N. W. 554; Baltimore & O. S. W.
Ry. Co. v. Faith, 175 111. 58, 51 N. E. 807; Waco Artesian Water Co. v. Cau-
ble (Tex. Civ. App.) 47 S. W. 538; Chicago, St. P. & K. C. R. Co. v. Ryan, 62
111. App. 264; Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S. E. 869;
Olwell v. Railway Co., 92 Wis. 330, 66 N. W. 362.
5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 33
and the opportunity for its employment so unlimited, that its adop-
tion by a comparatively large number of founders would be essen-
tial to the establishment of a class within our definition. On the
other hand, locomotion by balloons is unusual, and the adoption
by three, or even two, aeronauts of a new invention for steering
them, might properly be held to be usage by a class.
Test of Requisite Care.
It follows, then, that to determine the degree of care requisite in
each case the criterion must be the kind of care usually exercised
by competent, prudent persons in similar transactions, in suffi-
cient numbers to establish a class.
No Degrees of Negligence.
It follows, as a corollary of what has been said, regarding the
degrees of care required by law, that theoretically there can be
no degrees of negligence. Failure to observe the kind of care
requisite in any set of circumstances is negligence for which,
other conditions being present, recovery may be had according to
the extent of the injury suffered; conversely, any case of alleged
negligence is directly referable for test to the kind of duty violated,
and the degree of care lacking in the violation. As a matter of cus-
tom, a habit not easily thrown off, it is probable that the terms
"slight negligence," "ordinary negligence," and "gross negligence"
will continue to stand on the lucus a non principle, for something
which they do not represent, until such time as the courts shall
break away from the meaningless and misleading phraseology.
BAR.XEG.--3
34 CONTRIBUTORY NEGLIGENCE. (Ch. 2
CHAPTER H.
CONTRIBUTORY NEGLIGENCE.
6. Definition.
7. General Rule.
8. Proximate Cause.
9. Degree of Care.
10. Terror Caused by Real or Fancied Peril.
11. Knowledge of Danger.
12. Assumption of Risk.
13. Anticipation of Negligence.
14. Legal Status of Plaintiff as Affecting His Contributory Negligence.
15. Plaintiff as Trespasser or Licensee.
16. The Relative Time of Plaintiff's Negligence as Affecting His Right to
Recover.
17. Plaintiff's Negligence after the Accident.
18-19. Contributory Negligence of Third Persons.
20. Master and Servant or Principal and Agent.
21. Shipper and Carrier of Goods.
22-23. Passenger and Common Carrier.
24. Negligence of Husband Imputed to Wife.
25-27. Imputed Negligence.
28. Degree of Care Required of a Child.
29. Lunatics and Idiots.
30. Physical Condition an Element of Contributory Negligence.
31. Intoxication.
32. Comparative Negligence.
33. Evidence Burden of Proof.
34. Pleading Contributory Negligence.
35. Contributory Negligence as Question of Fact.
DEFINITION.
6. Contributory negligence is such negligence on the part
of the plaintiff as to proximately cause the injury
complained of, superseding the prior "wrongful con-
duct of the defendant, and rendering him incapable
of averting its consequences.
The intervening or concurrent negligent act of any third party,
which in any degree assists or promotes the happening of the injury,
7) GENERAL RULE. 35
is, properly speaking, contributory to such result; but the term "con-
tributory negligence" has, by common consent and usage, been lim-
ited in its application to the negligent acts of the person who seeks to
recover damages for the injury.
GENERAL RULE.
7. Plaintiff cannot maintain an action for injuries caused
by the negligence of defendant, if his own neg-
ligence contributed in any degree to produce the re-
sult complained of, unless
(a) The defendant, having knowledge of plaintiff's neg-
ligence, fails to use ordinary care to avert the con-
sequences, or unless
(b) The contributory negligence of plaintiff is caused by
sudden peril and terror in the situation wherein he
has been placed by defendant's negligence.
The most satisfactory reason for this doctrine seems to be that the
causal connection between defendant's negligent act and the injury
is broken by the intervention of plaintiff's independent volition. 1
WiUful Injury.
In considering the doctrine of contributory negligence, it should be
borne in mind that it has no application in cases of willful injury,
but is confined strictly to negligence under the definition. Contrib-
utory negligence is not a defense in an action for a willful tort. 2 But,
7. i Tuff v. Warruan, 5 C. B. (X. S.) 573; Witherley v. Canal Co., 12 C. B.
(X. S.) 2, 8; Ellis v. Railroad Co., 2 Hurl. & N. 424; Martin v. Railroad Co.,
16 C. B. 179; Bridge v. Railroad Co., 3 Mees. & W. 244. Approved in Davies
v. Mann, 10 Mees. & W. 546. Cited and explained in Dowell v. Navigation
Co., 5 El. & Bl. 195; Holden v. Coke Co., 3 C. B. 1; Baltimore & P. R. Co.
v. Jones, 95 U. S. 439; Tan Lien v. Manufacturing Co., 14 Abb. Prac. (N. S.)
74; Ince v. Ferry Co., 100 Mass. 149.
2 Wallace v. Express Co., 134 Mass. 95; Steinmetz v. Kelly, 72 Ind. 442;
Birge v. Gardner, 19 Conn. 507; Williams v. Railroad Co., 2 Mich. 259; Cin-
cinnati, H. & D. R. Co. v. Waterson, 4 Ohio St 425; Bunting v. Railroad Co.,
16 Xev. 277; Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255; Sanford v.
Railroad Co., 23 X. Y. 343. Where defendant's act was wanton and reckless,
failure of plaintiff to use ordinary care will not defeat recovery. Central
Railroad & Banking Co. v. Newman, 94 Ga. 560, 21 S. E. 219; Kansas City,
36 CONTRIBUTORY NEGLIGENCE. (Cll. 2
if the action is founded on inadvertent misfeasance or nonfeasance,
contributory negligence will prevent recovery, regardless of the de-
gree of negligence involved in defendant's conduct. 3
PROXIMATE CAUSE.
8. To establish the defense of contributory negligence, the
causal connection between plaintiff's negligence and
injury must be shown.
It is not enough that plaintiff's conduct is marked by the absence of
even the slightest care. If it does not contribute to produce the in-
jury, it is immaterial. 1
What has been already said regarding proximate cause is equally
applicable where the negligence in question is contributory. 2 The
limitation imposed by the word "contributory," however, indicates
that the negligence of plaintiff need not in fact must not be the
sole cause.
Courts have said that the negligence of plaintiff must "substantial-
ly" contribute to the injury, 3 must be an "efficient" or "essential"
M. & B. R. Co. v. Lackey, 114 Ala. 152, 21 South. 444; Lake Shore & M. S.
Ry. Co. v. Bodemer, 139 111. 596, 29 N. E. 692; Louisville Safety- Vault & Trust
Co. v. Louisville & N. R. Co. (Ky.) 17 S. W. 567.
3 Catawissa R. Co. v. Armstrong, 49 Pa. St. 186; Grippen v. Railroad Co. r
40 N. Y. 34; Cunningham v. Lyness, 22 Wis. 236; Mangam y. Railroad Co.,
36 Barb. 230; Carroll v. Railroad Co., 13 Minn. 30 (Gil. 18); Griggs v. Fleck-
enstein, 14 Minn. 81 (Gil. 62); Neal v. Gillett, 23 Conn. 437; Rowen v. Rail-
road Co., 59 Conn. 364, 21 Atl. 1073; Ruter v. Foy, 46 Iowa, 132; Carrington
v. Railroad Co., 88 Ala. 472, 6 South. 910; Florida Southern Ry. Co. v. Hirst,
30 Fla. 1, 11 South. 506; International & G. N. R. Co. v. Kuehn, 11 Tex. Civ.
App. 21, 31 S. W. 322.
8. i Tendency to disease, increasing damages, defendant still liable. Mc-
Namara v. Village of Clintonville, 62 Wis. 207, 22 N. W. 472. Ox negligently
killed by defendant, value of hide and meat, which plaintiff might have used,
may be deducted from the damages. Memphis & C. R. Co. v. Hembree, 84 Ala.
182, 4 South. 392; Georgia Pac. R. Co. v. Fullerton, 79 Ala. 298. The vital
point is, did the negligence of plaintiff contribute to the happening of the
injury, not to its increase? Sills v. Brown, 9 Car. & P. 601, 606; Stebbins v.
Railroad Co., 54 Vt. 464.
2 See ante, pp. 9-17.
s Daley v. Railroad Co., 26 Conn. 591; Montgomery Gaslight Co. v. Mont-
gomery & E. Ry. Co., 86 Ala. 372, 5 South. 735; West v. Martin, 31 Mo. 375.
8) PROXIMATE CAUSE. 37
cause; * that, although plaintiff was negligent, if ordinary care on
his part would have availed nothing against defendant's wrong con-
duct, he mav still recover. 5 But to attempt to define the essential
degree of intimacy between plaintiff's negligence and injury is un-
profitable and dangerous. In Monongahela City v. Fischer 6 the court
says: "The doctrine of this court has always been that, if the negli-
gence of the party contributed in any degree to the injury, he can-
not recover." And it is now well settled that, if the negligence of
plaintiff contributed in any degree to cause the injury complained of,
he cannot recover, 7 unless it further appears that the defendant
might, by the exercise of reasonable care and prudence, have avoided
* Sullivan's Adm'r v. Bridge Co., 9 Bush (Ky.) 81.
5 Village of Orleans v. Perry, 24 Neb. 831, 40 N. W. 417; Eadley v. Rail-
road Co., L. R. 9 Exch. 71.
e 111 Pa. St. 9, 2 Atl. 87. See, also, Oil City Fuel-Supply Co. v. Boundy, 122
Pa. St. 449, 15 Atl. 865; Mattimore v. City of Erie, 144 Pa. St. 14, 22 Atl. 817;
Banning v. Railroad Co., 89 Iowa, 74, 56 X. W. 277; Kennard v. Burton, 25
Me. 39.
7 Crandall v. Transportation Co., 11 Biss. 516, 16 Fed. 75; Munger v. Rail-
road Co., 4 N. Y. 349; Willard v. Pinard, 44 Vt. 34; Oil City Fuel-Supply
Co. v. Boundy, 122 Pa. St. 449, 15 Atl. 865; Monongahela City v. Fischer,
111 Pa. St. 9, 2 Atl. 87; Murphy v. Deane, 101 Mass. 455; Coombs v. Purring-
ton, 42 Me. 332; Hearne v. Railroad Co., 50 Cal. 482; Flemming v. Railroad
Co., 49 Cal. 253; Cremer v. Town of Portland, 36 Wis. 92; Laicher v. Rail-
road Co., 28 La. Ann. 320; Broadwell v. Swigert, 7 B. Mon. (Ky.) 39; Cata-
wissa R. Co. v. Armstrong, 49 Pa. St. 186; Stiles v. Geesey, 71 Pa. St. 439;
Claus v. Steamship Co., 32 C. C. A. 282, 89 Fed. 646; Maxwell v. Railway
Co., 1 Marv. 199, 40 Atl. 945; United States Exp. Co. v. McCluskey, 77 111.
App. 56; Guthrie v. Railway Co., 51 Neb. 746, 71 N. W. 722; Briscoe v. Rail-
way Co., 103 Ga. 224, 28 S. E. 638; South Chicago City Ry. Co. v. Adam-
son, 69 111. App. 110; Atwood v. Railway Co., 91 Me. 399, 40 Atl. 67; O'Con-
nor v. Ditch Co., 17 Nev. 245, 30 Pac. 882; Jones v. Railroad Co., 107 Ala. 400,
18 South. 30; Payne v. Railroad Co., 129 Mo. 405, 31 S. W. 885; Lack v.
Seward, 4 Car. & P. 106; Luxford v. Large, 5 Car. & P. 421; Woolf v.
Beard, 8 Car. & P. 373; Vennall v. Garner, 1 Cromp. & M. 21; Dowell v.
Navigation Co., 5 El. & Bl. 195. And this is true although the original negli-
gence of defendant involved the violation of an ordinance or statute. Payne
v. Railroad Co., 129 Mo. 405, 31 S. W. 885. But see Alaska Treadwell Gold-
Min. Co. v. Whelan, 12 C. C. A. 225, 64 Fed. 462, where it was held that
gross negligence of defendant may excuse slight contributory negligence in
the plaintiff. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11
Sup. Ct. G53.
38 CONTRIBUTORY NEGLIGENCE. (Ch. 2
the consequences of the injured "party's negligence. 8 In the language
of Lamar, J., if the proximate and immediate cause of the injury can
be traced to the want of ordinary care and caution in the person
injured, an action for the injury cannot be maintained unless it fur-
ther appears that the defendant might, by the exercise of ordinary
care and prudence, have avoided the consequences of the injured
party's negligence. 9
DEGREE OF CARE.
9. The plaintiff is obligated to that degree of care which
an ordinarily prudent person of similar intelligence
would exercise in the circumstances.
In determining whether the conduct of plaintiff was negligent in
the circumstances, the test is similar to that applied to the conduct
of the defendant in determining his primary liability, although in the
case of the former the law does not exact so high a degree of dil-
igence and care. It is certain that the plaintiff must use at least
ordinary care to avoid the injurious consequences of defendant's mis-
conduct. 1 It is impossible to define the duty of plaintiff by any lesser
s Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Clark v.
Railroad Co., 109 N. C. 430, 14 S. E. 43; Spencer v. Railroad Co., 29 Iowa, 55;
Newport News & M. V. Co. v. Howe, 3 C. C. A. 121, 52 Fed. 303; Morris v.
Railroad Co., 45 Iowa, 29; Deeds v. Railroad Co., 69 Iowa, 164, 28 N. W. 488;
Czezewzka v. Railway Co., 121 Mo. 201, 25 S. W. 911; McKean v. Railroad
Co., 55 Iowa, 192, 7 N. W. 505; O'Rourke v. Railroad Co., 44 Iowa, 526; Den-
ver & B. P. Rapid-Transit Co. v. Dwyer, 20 Colo. 132, 36 Pac. 1106; Nashua
Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159; Indiana Stone Co,
v. Stewart, 7 Ind. App. 563, 34 N. E. 1019; Tobin v. Cable Co. (Cal.) 34 Pac.
124. Also cf. Holmes v. Railway Co., 97 Cal. 161, 31 Pac. 834, with Overby
v. Railway Co., 37 W. Va. 524, 16 S. E. 813; Pierce v. Steamship Co., 153
Mass. 87, 26 N. E. 415; Evarts v. Railroad Co., 56 Minn. 141, 57 N. W. 459;
Keefe v. Railroad Co., 92 Iowa, 182, 60 N. W. 503; Little v. Railway Co., 88-
Wis. 402, 60 N. W. 705; Texas & P. Ry. Co. v. Lively, 14 Tex. Civ. App.
554, 38 S. W. 370; Baltimore City Pass. Ry. Co. v. Cooney, 87 Md. 261, 39
Atl. 859; Thompson v. Rapid-Transit Co., 16 Utah, 281, 52 Pac. 92; Omaha
St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007; Styles v. Railroad Co., 118
N. C. 1084, 24 S. E. 740.
Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679.
9. i In Patrick v. Pote, 117 Mass. 297, Devens, J., says: "The plaintiff, in
order to show that he was in the exercise of due care, must prove that he
9) DEGREE OF CARE. 39
latitude than that measured by this word "ordinary" in its common
significance. Very slight care may not be, and generally is not, suffi-
cient to exempt him from the charge of contributory negligence;
neither is his failure to exercise unusual care a defense to his claim
for damages. 2
Xo rule sufficiently elastic to meet the requirements of the varying
circumstances which influence the conduct of those menaced by sud-
den danger can be formulated. The "prudent man," so often set up
as a model and standard of comparison, is phlegmatic, conservative,
and far-sighted; but he acquires these and other excellent attributes
in circumstances which admit of mature deliberation. What his con-
duct would be if the opportunity for such deliberation were lacking,
is purely a matter of conjecture. All definitions of ordinary or prop-
er care, as affecting contributory negligence, are misleading and un-
satisfactory. The proper degree must be determined in the light of
the circumstances as disclosed by the evidence in each case; the fact
whether the right degree has been used being usually for the jury, un-
der the general instructions of the court. 3
bad acted as men of ordinary prudence, exercising this faculty, and pos-
sessed of sufficient sense and capacity to act intelligently, would have acted
under similar circumstances." Monger v. Kailroad Co., 4 N. Y. 349; Priest v.
Nichols, 116 Mass. 401; Kailroad Co. v. Jones, 95 U. S. 439; Peverly v. City
of Boston, 136 Mass. 366; Gannon v. Inhabitants of Bangor, 38 Me. 443;
Brown v. Railway Co., 22 Minn. 165; Salem-Bedford Stone Co. v. O'Brien,
12 Ind. App. 217, 40 X. E. 430; Chicago & E. I. R. Co. v. Roberts, 44 111. App.
179; Mattimore v. City of Erie, 144 Pa. St. 14, 22 Atl. 817.
2 Lyons v. Railroad Co., 57 N. Y. 489; Mark v. Bridge Co., 103 N. Y. 28,
8 N. E. 243; Chicago & N. Ry. Co. v. Donahue, 75 111. 106; Xewbold v. Mead,
57 Pa. St. 487; Davies v. Mann, 10 Mees. & "W. 546; Quirk v. Elevator Co..
126 Mo. 279. 28 S. W. 10SO. In Chase v. Railroad Co., 24 Barb. (N. Y.) 273,
it was held that "ordinary" care and "reasonable" care were not synonymous,
and that "reasonable care" was required. The same degree of diligence is
not required of a person about to cross a public street to avoid contact with
vehicles as would be required at a railroad crossing. Eaton v. Cripps, 94
Iowa, 176, 62 N. W. 687; St. Louis S. W. Ry. Co. v. Rice, 9 Tex. Civ. App.
509, 29 S. W. 525.
s McGrath v. Railroad Co., 59 N. Y. 468. In Otis v. Town of Janesville,
47 Wis. 422, 2 N. W. "S3, the court, after charging that "slight negligence"
would not prevent recovery, but that a "want of ordinary care" would do so
if it contributed in any "material degree" to produce the injury, refused to
charge that a "slight want of ordinary care," in consequence of which the
40 CONTRIBUTORY NEGLIGENCE. (Ch. 2
SAME TERROR CAUSED BY REAL OR FANCIED PERIL.
10. When a person, by reason of terror, caused by real or
fancied peril produced by the negligence of defend-
ant, fails to use ordinary care to avoid the danger,
and thereby suffers injury, it cannot be said that,
as a matter of law, he is guilty of contributory neg-
ligence.
This proposition illustrates the futility of attempting to fix a uni-
versal standard by which the conduct of plaintiff may be invariably
measured. Where the circumstances are extraordinary, it would be
unjust to measure the conduct of the plaintiff by that of the prudent
man unruffled by emergency. "If I place a man in such a situation
that he must adopt a perilous alternative, I am responsible for the
consequences." 1 And so if a person, reasonably apprehending dan-
ger, leaves a position of safety, and is thereby hurt, he may still
maintain his action. 2 Neither is it contributory negligence in a per-
injury occurred, would have that effect. Held, that the instruction should
have been given. In Randall v. Telegraph Co., 54 Wis. 140, 11 N. W. 419,
this decision is affirmed, "however gross defendant's negligence may have
been." Chicago & G. T. Ry. Co. v. Kinnare, 76 111. App. 394; Manning v.
Railway Co., 160 Mass. 230, 44 N. E. 135; Harmon v. Railroad Co., 7 Mackey,
255; Apsey v. Railroad Co., 83 Mich. 440, 47 N. W. 513; Eichel v. Senhenn,
2 Ind. App. 208, 28 N. E. 193; Central R. Co. v. Hubbard, 86 Ga. 623, 12
S. E. 1020.
10. i Lord Ellenborough, in Jones v. Boyce, 1 Starkie, 493. See, also,
Walters v. Light Co. (Colo. App.) 54 Pac. 960; Hefferman v. Alfred Barber's
Son, 36 App. Div. 163, 55 N. Y. Supp. 418; Heath v. Railway Co., 90 Hun,
560, 36 N. Y. Supp. 22; Kreider v. Turnpike Co., 162 Pa. St. 537, 29 Atl. 721;
Dunham Towing & Wrecking Co. v. Dandelin, 143 111. 409, 32 N. E. 258;
Gibbons v. Railway Co., 155 Pa. St. 279, 26 Atl. 417.
2 Lincoln Rapid-Transit Co. v. Nichols, 37 Neb. 332, 55 N. W. 872, where
one is placed by the negligence of another in a situation of sudden peril, his
attempt to escape danger, even by doing an act which is also dangerous, and
from which injury results, is not contributory negligence, such as will pre-
vent him from recovering for the injury, if the attempt be such as a person
acting with ordinary prudence might, under the circumstances, make. South
Covington & C. St. Ry. Co. v. Ware, 84 Ky. 267, 1 S. W. 493; Brown v. Rail-
way Co., 54 Wis. 342, 11 N. W. 356; Gurnz v. Railway Co., 52 Wis. 672, 10
N. W. 11; Turner v. Buchanan, 82 Ind. 147; Iron R. Co. v. Mowery^SG Ohio
11) DEGREE OF CARE KNOWLEDGE OF DANGER. 41
son rightfully on a railroad track, in terror at the sudden appearance
of a train, to jump in front of it. 3 Cases are numerous where pas-
sengers on railway trains and street cars, apprehending collision or
other disaster, are injured by jumping off, when they would have been
unhurt had they kept their seats. 4 In these and similar cases the
question whether the injured exercised due caution is a proper one
for the jury. 5
SAME KNOWLEDGE OF DANGER.
11. Knowledge by plaintiff, either actual or implied by law,
of the danger to which defendant has exposed him,
is a prerequisite to the defense of contributory neg-
ligence.
Theoretically, at least, the duties of defendant and plaintiff are
reciprocal, and a breach by the former does not release the latter
from his obligation to use ordinary care to avoid its injurious con-
st. 418; Wilson v. Railroad Co., 26 Minn. 278, 3 N. W. 333; Roll v. Railway
Co., 15 Hun, 496. "If he makes such a choice as a person of ordinary care,
placed in the same situation, might make." Twomley v. Railroad Co., 69 X.
Y. 158. Also see Com. v. Boston & M. R. R., 129 Mass. 500; Pennsylvania Co.
v. Roney, 89 Iiid. 453; Linnehan v. Sampson, 126 Mass. 506; Pennsylvania
R. Co. v. Snyder, 55 Ohio St. 342, 45 N. E. 559; Missouri, K. & T. Ry. Co. of
Texas v. Rogers, 91 Tex. 52, 40 S. W. 956.
s Indianapolis, B. & W. Ry. Co. v. Oarr, 35 Ind. 510; Coulter v. Express
Co., 56 N. Y. 585.
* Buel v. Railroad Co., 31 N. Y. 314; Dyer v. Railway Co., 71 N. Y. 228; Mo-
bile & M. R. Co. v. Ashcraft, 48 Ala. 15; Georgia Railroad & Banking Co.
v. Rhodes, 56 Ga. 645; Cuyler v. Decker, 20 Hun, 173; Chitty v. Railway Co.
(Mo. Sup.) 49 S. W. 868; Washington & G. R. Co. v. Hickey, 5 App. D. C. 43(j;
Houston, E. & W. T. Ry. Co. v. Norris (Tex. Civ. App.) 41 S. W. 708; Wade
v. Power Co., 51 S. C. 296, 29 S. E. 233; Xicholsburg v. Railroad Co., 11 Misc.
Rep. 432, 32 N. Y. Supp. 130; Killien v. Hyde, 63 Fed. 172.
B Instruction as to contributory negligence was modified by adding that if,
through defendant's negligence, injured was placed in a position of peril and
confronted with sudden danger, then the law did not require of him the snnie
degree of care and caution that it does of a person who has ample oppor-
tunities for full exercise of his judgment. Dunham Towing & Wrecking Co.
v. Dandelin, 143 111. 409, 32 X. E. 258; Lincoln Rapid-Transit Co. v. Nichols,
37 Xeb. 332, 55 X. W. 872; Cook v. Railroad Co. (Ala.) 12 Repoiter, 35li; Chi-
cago, B. & Q. R. Co. v. Gunderson, 74 111. App. 356.
42 CONTRIBUTORY NEGLIGENCE. (Ch. 2
sequences; 1 but it is evident that this duty which rests on plaintiff
cannot arise until he has knowledge of the danger to which he has
been exposed. 2
The question of knowledge is generally one of mixed law and fact,,
to be determined by the jury under proper instructions from the
court; 3 but the danger may be so patent, or the circumstances of
such a nature, as to admit of but one finding, in which case it is im-
proper to submit the question to the jury. 4
11. i Tucker v. Duncan, 9 Fed. 867.
* Wall v. Town of Highland, 72 Wis. 435, 39 N. W. 560; Moomey v. Peak,.
57 Mich. 259, 23 N. W. 804; Jeffrey v. Railroad Co., 56 Io\va, 546, 9 N. W.
884; Langan v. Railway Co., 72 Mo. 392; Dush v. Fitzhugh, 2 Lea, 307; Fow-
ler v. Railroad Co., 18 W. Va. 579; Gray v. Scott, 66 Pa, St. 345; Thirteenth
& F. St Pass. Ry. Co. v. Boudrou, 92 Pa. St. 475; Pennsylvania Tel. Co. v.
Varnau (Pa.) 15 Atl. 624; Citizens' St. R. Co. v. Sutton, 148 Ind. 169, 46 N. E,
462; Hallyburton v. Association, 119 N. C. 526, 26 S. E. 114; Ma con & I. S.
St. Ry. Co. v. Holmes, 103 Ga. 655, 30 S. E. 563; City of Peoria v. Adams, 72
111. App. 662; Cochran v. Railroad Co., 184 Pa. St. 565, 39 Atl. 296; Stone v.
Hunt, 114 Mo. 66, 21 S. W. 454; Brannock v. Elmore, 114 Mo. 53, 21 S. W.
451; Thayer v. Railroad Co., 93 Mich. 150, 53 N. W. 216; Cannon v. Lewis, 18-
Mont. 402, 45 Pac. 572; St. Louis & S. F. Ry. Co. v. Traweek, 84 Tex. 65, 19-
S. W. 370; Platt v. Railway Co., 84 Iowa, 694, 51 N. W. 254; Giraudi v. Im-
provement Co., 107 Cal. 120, 40 Pac. 108; Davis v. Railroad Co., 105 Cal. 131,
38 Pac. 647; Rowell v. Railroad Co., 64 Conn. 376, 30 Atl. 131. A saloon
keeper is not presumed to know that sewer gas, when mixed in proper pro-
portions with common air, will explode. Kibele v. City of Philadelphia, 105
Pa. St. 41. One injured by an electric wire cannot be presumed, in the ab-
sence of evidence, to have had knowledge that moisture destroyed the insula-
tion of such a wire. Giraudi v. Improvement Co., 107 Cal. 120, 40 Pac. 108.
s Hathaway v. Railroad Co., 29 Fed. 489; Philbrick v. City of Niles, 25-
Fed. 265; Hendricken v. Meadows, 154 Mass. 599, 28 X. E. 1054; Jennings v.
Van Schaick, 108 N. Y. 530, 15 X. E. 424.
4 Knowledge implied by law from the circumstances, as in Schofield v. Rail-
way Co., 8 Fed. 488; Patterson v. Hemenway, 148 Mass. 94, 19 N. E. 15, cit-
ing Taylor v. Manufacturing Co., 140 Mass. 150, 3 N. E. 21; Messenger v.
Dennie, 141 Mass. 335, 5 N. E. 283; and Taylor v. Manufacturing Co., 14$
Mass. 470, 10 X. E. 308. Knowledge presumed not to exist in the circumstances.
Kibele v. City of Philadelphia, 105 Pa, St. 41; Giraudi v. Improvement Co._
107 Cal. 120, 40 Pac. 108.
12) ASSUMPTION OF RISK. 4S
ASSUMPTION OF RISK.
12. When a person exposes himself or his property to a
danger of -which he has knowledge, he is presumed
to assume -whatever risks are reasonably incident
to his conduct.
As where plaintiff, knowing a bridge to be out of repair and un-
safe, although in public use, attempted, with the greatest care and
caution, to drive over it, and was injured, the court held that he had
assumed the risk, and was guilty of contributory negligence. 1
An apparent exception to this rule exists in cases where a person
knowingly encounters danger for the purpose of saving his own prop-
erty, which has been placed in peril by the defendant; or endangers
his own life in attempting to rescue another from imminent peril. In
this class of cases, however, the courts hold that it is the right, and
even the duty, of one to endeavor, in such circumstances, to protect
his own property, and to save life, if it may be attempted without a
reckless exposure to danger. 2
12. i Morrison v. Shelby Co., 116 Ind. 431, 19 X. E. 316. Plaintiff stood
for an hour and a half -within two feet of an unguarded trench, dug by de-
fendant, looking at election returns, when a sudden surging of the crowd
pushed him into the trench, and he was injured. Held, that he had volun-
tarily exposed himself to the danger. Roe v. Crimmins, 10 Misc. Rep. 711,
31 X. Y. Supp. SOT; Walker v. Lumber Co., 86 Me. 191, 29 Atl. 979; Moore v.
Railway Co., 126 Mo. 265, 29 S. W. 9; Whalen v. Light Co., 151 X. Y. 70, 45
X. E. 363; Berg v. Railway Co., 70 Minn. 272, 73 X. W. 648: West Chicago
St. R. Co. v. Schenker, 78 111. App. 592; Bunnell v. Bridge Co., 66 Conn. 24,
33 Atl. 533; Larkin v. Railroad Co., 166 Mass. 110, 44 X. E. 122; Culbertson
v. Railroad Co., 88 Wis. 567, 60 X. W. 998; Downes v. Bridge Co. (Sup.) 58 X.
Y. Supp. 628.
2 In Rexter v. Starin, 73 X. Y. 601, the plaintiff's boat being fastened to the
pier, and plaintiff in another boat alongside, defendant's boat approached in
such a manner as to make a collision imminent. Plaintiff jumped onto his own
boat to do what he could to avert the collision, and was injured, by being
struck by a piece of timber that was torn off in the collision. Defendant
claimed that it was contributory negligence for him to put himself in the way
of a danger that was imminent and evident. The court held, however, that
it was plaintiff's right and duty to look to the safety of his boat, and it was
for the jury to determine whether his act was that of a reasonable man, under
44 CONTRIBUTORY NEGLIGENCE. (Ch. 2
Absent-mindedness or failure to remember is no excuse. If the
plaintiff at any time had knowledge of the defective or dangerous con-
ditions, it is sufficient to charge him with the assumption of the risk.
This is frequently illustrated in cases of injury at railroad crossings,
where persons, familiar with the locality, fail to look out for or ob-
serve approaching trains. 3 In view of what has already been said, it
is hardly necessary to add that such knowledge in itself does not
constitute contributory negligence, for, as has been seen, one may
lawfully expose himself to danger in certain circumstances, or, ex-
posing himself negligently, may suffer from a cause which he could
not reasonably anticipate.
SAME ANTICIPATION OF NEGLIGENCE.
13. A person is obligated to anticipate only such danger
or negligence as is to be reasonably apprehended in
the circumstances.
A long line of decisions support the general proposition that, as
every one is presumed to act with due care and observance of the
law, negligence cannot be imputed to one who fails to anticipate that
another will do an unlawful act, or be remiss in his duty. 1 But every-
the circumstances. Wasmer v. Railroad Co., 80 N. Y. 212. But a person must
not be reckless in his exposure to danger, even in an effort to save his own
property negligently imperiled by another. Hay v. Railroad Co., 37 U. C. Q. B.
456. It is not contributory negligence per se for a stranger to go on premises
where a fire is raging, which endangers life or safety, if he does so in good
faith, for the purpose of saving life or property. Henry v. Railroad Co., 67
Fed. 426.
s Baltimore & O. R. Co. v. Whitacre, 35 Ohio St 627. See, also, Bruker v.
Town of Covington, 69 Ind. 33; Bassett v. Fish, 75 N. Y. 303; Weed v. Vil-
lage of Ballston Spa, 76 X. Y. 329; Salem-Bedford Stone Co. v. O'Brien, 12
Ind. App. 217, 40 X. E. 430. Where the plaintiff knew of the obstructions,
but thought they had been removed, Mahon v. Burns, 13 Misc. Rep. 19, 34 X.
Y. Supp. 91.
13. i Xolan v. Railroad Co., 53 Conn. 461, 4 Atl. 106; Central Trust Co.
v. Wabash, St. L. & P. Ry. Co., 26 Fed. 896; Maloy v. Railway Co., 84 Mo.
270; Sickles v. Ice Co., 80 Hun, 213, 30 X. Y. Supp. 100. A traveler crossing
the track may presume that the train will not run at a speed prohibited by
ordinance, Hart v. Devereux, 41 Ohio St. 565; and that the statutory warning
not be omitted, Missouri Pac. Ry. Co. v. Stevens, 35 Ivan. 622, 12 Pac. 25;
14) LEGAL STATUS OF PLAINTIFF. 45
day experience shows that such a presumption is incompatible with
ordinary care and prudence, and it is well settled that the intervening
negligence of a third person does not relieve the first wrongdoer from
liability if such intervening act was one which would ordinarily be ex-
pected to flow from his negligence. 2
Although there is but little authority to support the position, it
is difficult to understand why the standard of ordinary care, when
applied to the conduct of the plaintiff, should not include the prob-
abilities and considerations which actually shape the conduct of the
typically prudent man. Presumptions in questions of evidence are
one thing, and presumptions in the conduct of every-day business are
another. Every man is presumed innocent until proved guilty; but
the prudent man keeps his money in the bank, and locks his doors at
night. 8
LEGAL STATUS OF PLAINTIFF AS AFFECTING HIS CON-
TRIBUTORY NEGLIGENCE.
14. The legal status of plaintiff at the time of the in-
jury does not conclude the question of his con-
tributory negligence, although it may place on him
the burden of showing that his conduct, if illegal,
did not influence the result complained of.
As the degree of care required to relieve a person of the charge
of negligence varies according to the duty which he must discharge,
so does the measure of diligence to avoid harm, exacted from the
plaintiff, increase or diminish in proportion to the duty which is owed
him by the defendant. It may be put in this way: The degree of
care required of plaintiff to rebut the charge of contributory negli-
gence is inversely as the duty owed him by the defendant. This prop-
osition is, of course, of no practical value further than to direct atten-
and need not anticipate a negligent act, O'Connor v. Railway Co., 94 Mo. 150,
7 S. W. 106. Also see cases collected, Beach, Contrib. Neg. p. 52.
2 Henry v. Dennis, 93 Ind. 452 (a case said to be wrongly decided). Pastene
v. Adams, 49 Gal. 87; Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); Lane v.
Atlantic Works, 111 Mass. 136; Weick v. Lander, 75 111. 93.
s Texas & St. L. R. Co. v. Young, 60 Tex. 201; Beach, Contrib. Neg. p. 51.
46 CONTRIBUTORY NEGLIGENCE. (Ch. 2
tion to the shifting nature of the relation which exists between the
reciprocal duties of plaintiff and defendant in actionable negligence.
It is true that even slight negligence will defeat plaintiff's right to
recover, but, in determining if he has been guilty of any negligence,
the degree of care which he has exercised must be examined in the
light of the circumstances.
The relationship of the parties as affecting the degree of requisite
care will be considered later, but the legal status of the plaintiff at
the time the injury occurred is often significant in determining
whether he has used that ordinary care which is suited to the occa-
sion.
Illegality of Plaintiffs Conduct.
The fact that at the time of the injury plaintiff was engaged in an
illegal act is not contributory negligence per se. It is undoubtedly
proper matter for consideration as tending to show want of ordinary
care, but its effect may be rebutted by showing that the illegal act
was merely collateral, and did not influence the result of defendant's
negligence. Thus when, at the time of the accident, plaintiff was
violating a statute regulating speed, it was held that this fact merely
placed on him the burden of showing that the violation of the statute
in no way contributed to the collision. 1 And in general it may be
said of the violation of a statute, whether by plaintiff or defendant,
that it is merely evidence of want of ordinary care. 2 The law on this
14. i Minerly v. Ferry Co., 56 Hun, 113, 9 X. Y. Supp. 104; Piollet v. Sim-
mers, 106 Pa. St. 95; Philadelphia, W. & B. R. Co. v. Philadelphia & H. de
G. Steam Towboat Co., 23 How. 209; Spofford v. Harlow, 3 Allen (Mass.) 176;
Baker v. Portland, 58 Me. 199. In the latter ease the plaintiff was driving at
a rate of speed on the streets in violation of a city ordinance, and the court
says: "While it might subject the offender to a penalty, it will not excuse
the town for a neglect to make its ways safe and convenient for travelers, if
the commission of the plaintiff's offense did not in any degree contribute to
produce the injury of which he complains." Norris v. Litchfield, 35 N. H. 271,
277. But compare Toledo, W. & W. Ry. Co. v. Brooks, 81 111. 245, and Chi-
cago & A. R. Co. v. Michie, 83 111. 427. See, also, Needham v. Railroad Co., 37
Cal. 409.
2 Clark v. Railroad Co., 64 X. H. 323, 10 Atl. 676; Briggs v. Railroad Co., 72
N. Y. 26; Augusta & S. R. Co. v. McElmurry, 24 Ga. 75; Hanlon v. Railroad
Co., 129 Mass. 310; Philadelphia, W. & E. R. Co. v. Kerr, 25 Md. 521; Knup-
fle v. Ice Co., 84 N. Y. 488 (reversing 23 Hun, 159); Vincett v. Cook, 4 Hun
(X. Y.) 318. Welch v. Wesson, 6 Gray (Mass.) 505: One of two persons en-
14) LEGAL STATUS OF PLAINTIFF. 47
point is thus stated by Bell, J., in a New Hampshire case: 8 "As a
general principle, it seems to us wholly immaterial whether, in the
abstract, the plaintiff was a wrongdoer, or a trespasser, or was acting
in violation of the law. For his wrong or trespass he is answerable
in damages, and he may be punishable for his violation of law; but
his rights as to other persons and as to other transactions are not af-
fected by that circumstance. A traveler may be traveling on a turn-
pike without payment of toll ; he may be riding on a day when riding
Is forbidden, or with a speed forbidden by law; * * * and in
none of these cases is his right of action for any injury he may sus-
tain from the negligent conduct of another in any way affected by
gaged in trotting their horses against each other may maintain an action
against the other for willfully running him down, although they were trotting
for money, contrary to law. "We presume it may be assumed as an undis-
puted principle of law that no action will lie to recover a demand or a sup-
posed claim for damages if, to establish it, the plaintiff requires aid from an
illegal transaction, or is under the necessity of showing and depending in any
-degree upon an illegal agreement, to which he himself had been a party."
Merrick, J. He further says, in effect: The plaintiff presented a case with
no taint of illegality, which, if undisputed, entitled him to recover. The de-
fendant then invoked the aid of an illegal agreement and conduct, in which
t>oth parties equally participated, and from such a source neither party should
be permitted to derive a benefit. In Steele v. Burkhardt, 104 Mass. 50, plain-
tiff had placed his horse and wagon at right angles to the sidewalk while un-
loading goods, contrary to a city ordinance, and defendant negligently drove
his horse against that of plaintiff, when, by exercising reasonable care, he
might have passed safely. The court said that the violation of the ordinance
was admissible to show negligence in respect to keeping the ordinance, but
did not necessarily show negligence that contributed to the injury. So, also,
in Jones v. Inhabitants of Andover, 10 Allen (Mass.) 18, 20; Bigelow, C. J.,
says: "So, in case of collision of two vehicles on a highway, evidence that the
plaintiff was traveling on the left side of the road, in violation of the statute,
when he met the defendant, would be admissible to show negligence." But
see, also, Wallace v. Express Co., 134 Mass. 96, where it was held that if a
person sailing for pleasure on the Lord's Day, in violation of a statute, is in-
jured by being negligently run into by a steamboat, his unlawful act neces-
sarily contributes to the injury, but otherwise if the act of those in charge of
the steamboat was wanton and malicious. There is very little authority to
support this proposition, and the fact that three of the justices, including
Holmes, now chief justice, dissented, is significant.
3 Xorris v. Litchfield, 35 N. H. 271, 277.
48 CONTRIBUTORY NEGLIGENCE. (Ch. 2
these circumstances. He is none the less entitled to recover, unless
it appears that his negligence or his fault has directly contributed to
his damage."
Nor, on the other hand, is contributory negligence any the less
available as a defense by reason of the fact that the defendant has
failed to perform a duty imposed by statute. 4 But when the illegal
act in any manner contributes to produce the injury it constitutes the
defense of contributory negligence to the same extent only as though
it were not tainted with illegality.
Conversely, the fact that defendant's negligence involves a breach
of statute or an ordinance does not in any degree relieve plaintiff
from the charge of contributory negligence ; as where one carelessly
walks into an elevator opening, left unguarded contrary to statute. 5
SAME PLAINTIFF AS TRESPASSER OR LICENSEE.
15. The bare fact that plaintiff was committing a tres-
pass -when injured -will not prevent his recovery for
defendant's negligence.
As Trespasser.
Negligence is a breach of duty, and the duties owed to an actual
trespasser are few and slight. The law does not impose upon any
one the duty to anticipate a trespass, and guard against possible in-
jury to a wrongdoer; x but it will not excuse a willful or wanton in-
* Anderson v. Lumber Co., 67 Minn. 79, 69 X. W. 630; Knisley v. Pratt,
148 N. Y. 372, 42 N. E. 986; O'Maley v. Gaslight Co., 158 Mass. 135, 32
X. E. 1119.
5 McRickard v. Flint, 114 N. Y. 222, 21 X. E. 153; and see cases collected in
Beach, Contrib. Xeg. (2d Ed.) p. 67. Also Trask v. Shotwell, 41 Minn. 66,
42 X. W. 699; Beehler v. Daniels, 19 R. I. 49, 31 Atl. 582; South Bend Iron
Works v. Larger, 11 Ind. App. 367, 39 X. E. 209.
15. i Trask v. Shotwell, 41 Minn. 66, 42 X. W. 699: Elevator in ship-
ping room. Plaintiff's intestate came for goods, and was told to call at door
of shipping room, but to wait outside. He went into the room, and was
killed by falling down an elevator shaft, left unguarded, contrary to> statute.
Held no recovery. In Larmore v. Iron Co., 101 X. Y. 391, 4 X. E. 752, plain-
tiff went onto premises without invitation to seek employment, and while
passing along was injured by operation of a machine not obviously dangerous,
although the defect might have been discovered by the exercise of reasonable
care. Xo recovery. Followed in Sterger v. Vansicklen, 132 X. Y. 499, 30 X. E.
15) LEGAL STATUo OF Pi.AlNTIFK. 49
jury inflicted on him. But where plaintiff relies upon the violation of
some statute or ordinance enacted for the protection of those right-
fully upon certain premises, he must show that at the time of the
injury he belonged to the class intended to be benefited by the stat-
ute or ordinance, and if it appears that he was at that time a tres-
passer he cannot complain of the violation. Thus, where a statute
required railroad companies to block all frogs in their yards, and
plaintiff's decedent, a trespasser in defendant's yards, was killed by
reason of catching his foot in an unblocked frog, no other negli-
gence on the part of defendant being shown, no recovery was allowed;
the court observing: "A violation of a statutory duty can be made
the foundation of an action only by a person belonging to the class
intended to be protected by such regulation, and all statutes requiring
the owner or occupant of premises to adopt certain precautions to ren-
der them safe are designed for the protection, not of the wrongdoers
or trespassers, but of those who are rightfully upon them. Hence it
is held universally, except, perhaps, in Tennessee, that in case of
noncompliance with such a statute the injured person, in order to
recover, must have been rightfully in the place, and free from contrib-
987; distinguished in Byrne v. Railroad Co., 104 N. Y. 362, 10 N. E. 539; Mil-
ler v. Woodhead, 104 N. Y. 471, 11 N. E. 57; cited in Splittdorf v. State, 108-
X. Y. 205, 15 X. E. 322; Cusick v. Adams, 115 N. Y. 55, 21 N. E. 673; Larkin
v. O'Neill, 119 X. Y. 221, 23 N. E. 563. See, also, Redigan v. Railroad Co.,
l.">5 Mass. 44, 28 X. E. 1133. where owner of private way failed to put up-
sign. Stevens v. Xichols, 155 Mass. 472, 29 X. E. 1150; Reardon v. Thomp-
son, 149 Mass. 207, 21 X. E. 369; Omaha & R. V. R. Co. v. Martin, 14 Xeb.
295, 15 X. TV. 696; Blatt v. McBarron, 161 Mass. 21, 36 X. E. 468; Mergen-
thaler v. Kirby, 79 Md. 182, 28 Atl. 1065; Fredericks v. Railroad Co., 46 La.
Ann. 1180, 15 South. 413; Berlin Mills Co. v. Croteau, 32 C. C. A. 126, 88
Fed. 860; Biggs v. Wire Co. (Kan. Sup.) 56 Pac. 4; Ritz v. City of Wheeling
(W. Va.) 31 S. E. 993; Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598; Butz
v. Cnvanaugh, 137 Mo. 503, 38 S. W. 1104; Missouri, K. & T. Ry. Co. of Texas
v. Dobbins (Tex. Civ. App.) 40 S. W. 861; Dublin Cotton-Oil Co. v. Jarrard
(Tex. Civ. App.) 40 S. W. 531; Reeves v. French (Ky.) 45 S. W. 771; Anderson
v. Railway Co., 19 Wash. 340, 53 Pac. 345; Hector Min. Co. v. Robertson, 22
Colo. 491, 45 Pac. 406; Hutson v. King, 95 Ga. 271, 22 S. E. 615; Magner v.
Baptist Church, 174 Pa. St. 84, 34 Atl. 456; LOAVC v. Salt Lake City, 13 Utah,
91, 44 Pac. 1050; Dicken v. Coal Co., 41 W. Va. 511, 23 S. E. 582; Pelton
v. Schmidt, 104 Mich. 345, 62 X. W. 552; Barney v. Railroad Co., 126 Mo.
372, 28 S. W. 1069; Walsh v. Railroad Co., 145 X. Y. 301, 39 N. E. 10US;.
Elliott v. Carlson, 54 111. App. 470.
BAR.XEG. 4
50 CONTRIBUTORY NEGLIGENCE. (Ch. 2
utory negligence. Such statutes were never designed to abrogate the
ordinary rules that, to recover, the neglected duty must have been
due to the party injured, and that he himself must have been free
from contributory negligence." a
A.S Licensee.
But where the circumstances are such as to create or imply a
license or invitation to go upon premises, the owner is bound to ex-
ercise ordinary care for his safety. 3 And in some cases it would seem
to be sufficient if the owner exercised but slight care. 4 The weight of
authorities seems to support the proposition that, if the owner is
ignorant of the danger, or it is patent, the licensee or invited person
cannot recover. 8
2 Akers v. Railway Co., 58 Minn. 540, GO N. W. 669.
a Campbell v. Boyd, 88 N. C. 129; Hooker v. Railway Co., 76 Wis. 542, 44
N. W. 1085; Brezee v. Powers, 80 Mich. 172, 45 N. W. 130; Toomey v. San-
born, 146 Mass. 28, 14 N. E. 921; Emery v. Exposition, 56 Minn. 460, 57 N.
W. 1132; Davis v. Ferris, 29 App. Div. 623, 53 N. Y. Supp. 571; Brehmer v.
Lyman (Vt.) 42 Atl. 613; Kinney v. Onsted, 113 Mich. 96, 71 N. W. 482; Mc-
Govern v. Oil Co., 11 App. Div. 588, 42 N. Y. Supp. 595; Richmond & M. Ry.
Co. v. Moore's Adm'r, 94 Va. 493, 27 S. E. 70; Barman v. Spencer (Ind. Sup.)
49 N. E. 9; Anderson & Nelson Distilling Co. v. Hair (Ky.) 44 S. W. 658;
Doherty v. McLean, 171 Mass. 399, 50 N. E. 938; Wilson v. Olano, 28 App. Div
Supp. 448, 51 N. Y. Supp. 109; Smith v. Day, 86 Fed. 62; Blackstone v.
Foundry Co., 170 Mass. 321, 49 N. E. 635; Fitzpatrick v. Manufacturing Co.
(N. J. Sup.) 39 Atl. 675; Clarkin v. Biwabik-Bessemer Co., 65 Minn. 483, 67
N. W. 1020; Lowe v. Salt Lake City, 13 Utah, 91, 44 Pac. 1050; Hart v.
Park Club, 54 111. App. 480; Peake v. Buell, 90 Wis. 508, 63 N. W. 1053; Pel-
ton v. Schmidt, 104 Mich. 345, 62 N. W. 552.
* Woodruff v. Bowen, 136 Ind. 431, 34 X. E. 1113; Beehler v. Daniels, 18
R. I. 563, 29 Atl. 6; Walsh v. Railroad Co., 145 N. Y. 301, 39 N. E. 1068;
Plummet v. Dill, 156 Mass. 426, 31 N. E. 128; Faris v. Hoberg, 134 Ind. 209.
33 N. E. 1028; Gibson v. Leonard, 143 111. 182, 32 N. E. 182; Akers v. Rail-
road Co., 58 Minn. 540, 60 N. W. 669; Stevens v. Nichols, 155 Mass. 472. 29
N. E. 1150.
5 Campbell v. Boyd, 88 N. C. 129; Cusick v. Adams, 115 N. Y. 55, 21 N. E.
673; Eisenberg v. Railway Co., 33 Mo. App. 85. See, also, Shir. Lead. Gas.
<3d Ed.) p. 276: "A licensee can only maintain an action against his licensor
when the danger through which he has sustained hurt was of a latent charac-
ter, which the licensor knew of and the licensee did not." And it is fre-
quently said that the owner of premises is liable to a licensee for something
in the nature of a trap or a concealed danger only. Southcote v. Stanley,
16) BKLATIVE TIME OF PLAINTIFF'S NEGLIGENCE. 51
THE RELATIVE TIME OF PLAINTIFF'S NEGLIGENCE AS
AFFECTING HIS RIGHT TO RECOVER.
16. Referring to defendant's negligence, the relative time
of the negligence of plaintiff as happening before,
at the time of, or subsequent to that of defendant,
is immaterial.
Plaintiff negligently walks on the railroad tracks of defendant, who
discovers him in time to prevent injury by the exercise of ordinary
care. Failing in this, defendant is liable to plaintiff, although the lat-
ter is, at best, but a mere licensee, for injuries thus caused. 1 A
person may be induced by defendant's conduct to assume the risk, 2
or he may assume some risks with the reasonable expectation that
those having knowledge of his position will use ordinary care to
avoid inflicting injury on him; 3 and if, having this knowledge, they
fail to use the proper degree of care, and plaintiff is consequently
1 Hurl. & N. 247; White v. France, 2 C. P. Div. 308; Bolch v. Smith, 7 Hurl.
.& N. 730; Pickard v. Smith, 10 C. B. (N. S.) 470.
16. i Lay v. Railroad Co., 106 N. C. 404, 11 S. E. 412; Houston & T. C.
Ry. Co. v. Carson, 66 Tex. 345, 1 S. W. 107; Wooster v. Railway Co., 74 Iowa,
593, 38 N. W. 425; Kansas Pac. Ry. Co. v. Cranmer, 4 Colo. 524; Kelly v.
Transit Co., 95 Mo. 279, 8 S. W. 420; Austin v. Steamboat Co., 43 N. Y. 75;
Baltimore & O. R. Co. v. Kean, 65 Md. 394, 5 Atl. 325; Button v. Railroad
Co., 18 N. Y. 248; Cleveland, C. C. & I. R. Co. v. Elliott, 28 Ohio St. 340;
Doggett v. Railroad Co., 78 N. C. 305; Needham v. Railroad Co., 37 Cal. 409;
Chicago & A. R. Co. v. Anderson, 166 111. 572, 46 X. E. 1125; Embry v. Rail-
road Co. (Ky.) 36 S. W. 1123; St. Louis S. W. Ry. Co. v. Bishop, 14 Tex.
Civ. App. 504, 37 S. W. 764; Lindsay v. Railroad Co., 68 Vt. 556, 35 Atl.
513; Blankenship v. Railroad Co., 94 Va. 449, 27 S. E. 20; Gunn v. Railroad
Co., 42 W. Va. 676, 26 S. E. 546; Thomas v. Railway Co., 103 Iowa, 649, 72
N. W. 783; Willis v. Railroad Co., 122 N. C. 905, 29 S. E. 941.
2 Dewire v. Bailey, 131 Mass. 169; Looney v. McLean, 129 Mass. 33.
s Gothard v. Railroad Co., 67 Ala. 114; Zimmerman v. Railroad Co., 71
Mo. 476; Trow v. Railroad Co., 24 Vt. 487; Wright v. Brown. 4 Ind. 95;
Baltimore & O. R. Co. v. State, 33 Md. 542; Baltimore & O. R. Co. v. Mul-
ligan, 45 Md. 486; Mississippi Cent. R. Co. v. Mason, 51 Miss. 234; Johnson
v. Railroad Co., 27 La. Ann. 53; Isbell v. Railroad Co., 27 Conn. 393; Under-
wood v. Waldron, 33 Mich. 232; O'Rourke v. Railroad Co., 44 Iowa, 526;
Illinois Cent. R. Co. v. Hoffman, 67 111. 287; Lane v. Atlantic Works, 107
Mass. 104; Tuff v. Warmau, 2 C. B. (N. S.) 740.
52 CONTRIBUTORY NEGLIGENCE. (Ch. 2
injured, their breach of duty becomes the proximate cause of the in-
jury, and they are liable. 4 When plaintiff was riding in a phaeton,,
and, in attempting to cross the tracks of defendant, the view being
unobstructed, was struck by a car, and injured, the court said: "If
the motorman so saw the plaintiff in such danger and unconscious
of her peril, and might, by the exercise of reasonable care and pru-
dence, have avoided the consequences of the plaintiff's negligence,
but failed to do so, then such failure Was something more than a want
of ordinary care on his part, and amounted to wanton or reckless
conduct." 6
If the negligence of plaintiff is contemporaneous with that of de-
fendant, and the mutual negligent acts combine to produce the harm,,
it is evident that there can be no recovery. 6 It was so held where
plaintiff, in the employment of a third person, was engaged, under
the direction of a servant of defendant, in withdrawing from a rock
an unexploded charge of powder. The two men, working together,
employed a dangerous method of performing the work, and plaintiff
was injured by an explosion. 7 If the acts of negligence are not con-
* Gothard v. Railroad Co., 67 Ala. 114; Shear. & R. Neg. (-ith Ed.) 99;
Little v. Raihvay Co., 88 Wis. 402, 60 N. W. 705; Baltimore & O. 11. Co. v.
Hellenthal, 88 Fed. 116, 31 C. C. A. 414; Higgins v. Railway Co., 1 Marv.
352, 41 Atl. 86; Maxwell v. Railway Co., 1 Marv. 199, 40 Atl. 945; Krenzer
v. Railway Co., 151 Ind. 587, 52 N. E. 220; Texas & P. Ry. Co. v. Lively, 14
Tex. Civ. App. 554, 38 S. W. 370; Baltimore City Pass. Ry. Co. v. Coouey, 8T
Md. 261, 39 Atl. 859; McKeon v. Railway Co., 20 App. Div. 601, 47 N. Y.
Supp. 374; Thompson v. Rapid-Transit Co., 16 Utah, 281, 52 Pac. 92; Omaha
St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007; Styles v. Railroad Co., 118-
N. C. 1084, 24 S. E. 740; Hall v. Railway Co., 13 Utah, 243, 44 Pac. 1046;
McGuire v. Railroad C.o., 46 La. Ann. 1543, 16 South. 457; Moore v. Raihvay
Co., 126 Mo. 265, 29 S. W. 9; Little v. Railway Co., 88 Wis. 402, 60 N. W.
705; Keefe v. Railway Co., 92 Iowa, 182, 60 N. W. 503.
B Little v. Railway Co., 88 Wis. 402, 60 N. W. 705; and see Carroll v..
Railroad Co., 13 Minn. 30 (Gil. 18); Griggs v. Fleckenstein, 14 Minn. 81
(Gil. 62).
e Stucke v. Railroad Co., 9 Wis. 202; Straus v. Railroad Co., 75 Mo. 185;
Haley v. Railroad Co., 21 Iowa, 15; Needham v. Railroad Co., 37 Cal. 409;
Reynolds v. Hindman, 32 Iowa, 146; Northern Cent. Ry. Co. v. State, 29 Md.
420; Connor v. Traction Co., 173 Pa. St. 602, 34 Atl. 238; Central Railroad"
& Banking Co. v. Newman, 94 Ga. 560, 21 S. E. 219; King v. Railway Co.
(Minn.) 79 N. W. 611.
i Corneilson v. Railway Co., 50 Minn. 23, 52 N. W. 224.
17) RELATIVE TIME OF PLAINTIFF'S NEGLIGENCE. 53
temporaneous, the liability must be referred to the author of the act
which was the proximate cause of the injury.
Lastly, when the negligence of plaintiff is subsequent to that of de-
fendant, the ordinary, typical case exists where the plaintiff, having
knowledge of defendant's prior negligence, is bound to use ordinary
care, in the circumstances, to avoid its probable consequences. If
he fails to use such ordinary care, and the failure is the proximate
cause of his injury, he cannot recover. Thus, if a person, with full
and present knowledge of the defective condition of a sidewalk, and
of the risks incident to its use, voluntarily attempts to travel upon it,
when the defect could easily have been avoided by going around it,
he is not in the exercise of reasonable care, but must be presumed
to have taken his chances, and, if injury results, he cannot recover
against the city. 8
It is therefore immaterial at what time the negligence of plaintiff
operated, whether it was prior to, contemporaneous with, or subse-
quent to defendant's negligence. If it was the proximate cause of
his injury, he cannot recover. The principle has been tersely put in
the following language: ''The party who last has a clear opportunity
of avoiding the accident, notwithstanding the negligence of his oppo-
nent, is considered solely responsible for it." 9
SAME PLAINTIFF'S NEGLIGENCE AFTER THE ACCIDENT
17. Plaintiff's negligence occurring after the accident, and
thereby increasing the damage, is not a defense to
his right of action, but is a bar to recovery of the
excess of damages thus produced.
In other words, plaintiff being without fault in causing the legal
injury, defendant is liable for so much of the damage only as proxi-
mately resulted from his own negligence. 1
s Wright v. City of St. Cloud, 54 Minn. 94, 55 N. W. 819.
9 2 Quart. Law Rev. (1886) p. 507.
17. i Thomas v. Kenyon, 1 Daly (N. Y.) 132; Gould v. McKenna, 86 Pa.
St. 297; Secord v. Railway Co., 5 McCrary, 515, 18 Fed. 221; Tift v. Jones,
52 Ga. 538; Sherman v. Iron-Works Co., 2 Allen (Mass.) 524; Hunt v. Gas-
light Co., 1 Allen (Mass.) 343; Wright v. Telegraph Co., 20 Iowa, 195; Chase
v. Railroad Co., 24 Barb. (X. Y.) 273; Hamilton v. McPherson, 28 N. Y. 72;
54 CONTRIBUTORY NEGLIGENCE. (Ch. 2
It is immaterial that the injury was aggravated by subsequent mal-
treatment of physician, or by lack of judgment on the part of the
plaintiff, provided that good faith and ordinary prudence in the cir-
cumstances are shown. 2
The above rule has, of course, no application except in those cases
where a distinct division and apportionment of the injury or damages
can be made.
CONTRIBUTORY NEGLIGENCE OF THIRD PERSONS.
18. The negligent act of a stranger, contributing to pro-
duce the injury complained of, is no defense to the
action; 1 but in certain circumstances the plaintiff
may be so identified -with a third person, either by
express contract or by implication of law, as to be
chargeable with his misconduct, and make his neg-
ligence his own.
Milton v. Steamboat Co., 37 N. Y. 210; Greenland v. Chaplin, 5 Exch. 243.
Can recover up to excess caused by his own negligence. Stebbins v. Rail-
road Co., 54 Vt. 464; Miller v. Mariner's Church, 7 Me. 51; State v. Powell, 44
Mo. 436; Douglass v. Stephens, 18 Mo. 362; Illinois Cent. R. Co. v. Finnigan,
21 111. 646; Worth v. Edmonds, 52 Barb. (N. Y.) 40. Where there are two or
more injuries, to one of which only plaintiff has contributed, he can recover
for the other. Northern Cent. Ry. Co. v. State, 29 Md. 420. Plaintiff, being
injured on a railway, died from gross negligence of employe's. It was held
immaterial whether he contributed to the original injury. If his death resulted
from defendant's negligence, his representatives could recover.
2 Lyons v. Railroad Co., 57 N. Y. 4S9; Hope v. Railroad Co., 40 Hun (X. Y.)
438; Ehrgott v. Mayor, etc., 96 N. Y. 264; Lawrence v. Railroad Co., 29 Conn.
390; Stover v. Inhabitants of Bluehill, 51 Me. 439; Simpson v. City of Keokuk,
34 Iowa, 568; Sauter v. Railroad Co., 66 N. Y. 50; Vandenburgh v. Truax,
4 Denio (N. Y.) 464; Pollett v. Long, 56 N. Y. 200; Standard Oil Co. v. Bow-
ker, 141 Ind. 12, 40 N. E. 128; Strudgeon v. Village of Sand Beach, 107 Mich.
496, 65 N. W. 616; Bradford City v. Downs, 126 Pa. St. 622, 17 Atl. 884.
18-20. i Webster v. Railroad Co., 38 N. Y. 260; Barrett v. Railroad
Co., 45 N. Y. 028; Arctic Fire Ins. Co. v. Austin, 69 X. Y. 470; Paulmier v.
Railroad Co., 34 N. J. Law, 151. And see Sullivan v. Railroad Co.. 30 Pa. St.
234; Gee v. Railroad Co., L. R. 8 Q. B. 161, 174; Harrison v. Railroad Co.,
3 Hurl. & C. 231; Burrows v. Coke Co., L. R. 5 Exch. Cas. 67; Warren v.
Railroad Co., 8 Allen (Mass.) 227; Eaton v. Railroad Co., 11 Allen (Mass.) 503;
Ingalls v. Bills, 9 Mete. (Mass.) 1; McElroy v. Railroad Corp., 4 Cush. (Mass.)
400; Cayzer v. Taylor, 10 Gray (Mass.) 274; Churchill v. Holt, 127 Mass. 165.
18-20) CONTRIBUTORY NEGLIGENCE^ OF THIRD PERSONS. 55
19. To make the misconduct of a third party a defense to
the action, to make it contributory negligence,
within the definition, it must be shown that be-
tween the plaintiff and the person contributing to
cause the injury there existed such a relation or
connection as to make the former legally responsible
for the negligent act of the latter.
Such identification or relationship may exist between
(a) Master and servant or principal and agent.
(1) Shipper and carrier of goods.
(b) Guardians and persons non sui juris.
(1) Children.
(2) Lunatics, idiots, etc.
SAME MASTER AND SERVANT OR PRINCIPAL AND AGENT.
20. When the relation and circumstances are such that
the master would be responsible for the negligent
acts of his servant in an action for injuries caused
thereby, such negligence may be imputed to the
master as contributing to the injury complained of
by him.
Thus, where the servant, being in charge of plaintiff's team, negli-
gently left the horses unhitched, and engaged in a boisterous alterca-
tion with the defendant, at which the horses took fright, and ran
away, and were injured, in this case the court says: "But if Keddick
[the servant] was guilty of such negligence in the care of the team as
would preclude him, if he had been its owner, from maintaining an
action against Reasor [the defendant], this negligence must be equally
fatal in an action brought by this plaintiff, who confided the team to
Reddick's [his servant's] care." 2 It is apparent that if the horses, in
2 Puterbaugh v. Reasor. 9 Ohio St. 484; and nearly identical, Page v.
Hodge, 63 X. H. 610, 4 Atl. 805. Also, Toledo & W. Ky. Co. v. Goddard,
25 Ind. 185; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Louisville,
N. A. & C. Ry. Co. v. Stommel, 126 Ind. 35, 25 X. E. 863; Welty v. Railroad
Co., 105 Ind. 55, 4 X. E. 410; Abbitt v. Railway Co., 150 Ind. 498, 50 X. E.
729; Xesbit v. Town of Garner, 75 Iowa, 314, 39 X. W. 516; City of Joliet v.
56 CONTRIBUTORY NEGLIGENCE. (Ch. 2
running away, had injured a traveler, he could have maintained his
action against the master, who was responsible for his servant's negli-
gence.
But where the contributory negligence is based upon knowledge of
the existence of danger, the negligence of the agent cannot be imput-
ed to the principal, unless the failure to communicate the knowledge
is in itself negligence on the part of the agent. 3 So, also, the knowl-
edge of the principal is not imputed to the agent unless it appears
that, in the circumstances, ordinary care and prudence would have
permitted and required that he should inform the agent, in order that
he might avoid the injury; as, where an obstacle is negligently left
in the road and the principal, having knowledge of it, but no reason-
able cause to apprehend danger, fails to warn his agent, who, with-
out personal fault, drives his principal's wagon against it. 4 But
where the negligence of the master contributes with that of a third
person, to the injury of his servant, it cannot be imputed to the
servant in an, action against such third party. 5 Nor can the con-
tributory negligence of a co-employ^ be imputed to the plaintiff in a
suit against the principal. 6
21. SHIPPER AND CARRIER OF GOODS By weight of
authority, the shipper of goods is so identified -with
the common carrier that he cannot recover in an
action against a third person for injuries to the goods,
to which the negligence of the carrier contributed.
The doctrine of identification reached its extreme limit in the
famous, but now exploded, case of Thorogood v. Bryan, 1 wherein it
Seward, 86 111. 402; Minster v. Railway Co., 53 Mo. App. 276; Bronson v.
Railroad Co., 24 App. Div. 262, 48 N. Y. Supp. 257.
3 Weisser's Adm'rs v. Denison, 10 N. Y. 68; Board of Com'rs of Boone Co.
v. Hutchler, 137 Ind. 140, 36 N. E. 534; Fuller v. Benett, 2 Hare, 402.
* Gannon v. Bangor, 38 Me. 443.
B Galveston, H. & S. A. Ry. Co. v. Garteiser, 9 Tex. Civ. App. 456, 29 S. W.
939, where a railroad contractor negligently failed to send out a flagman, and
his employ^ was injured.
e Poor v. Sears, 154 Mass. 539, 28 N. E. 1046; Seaman v. Koehler. 122 X. Y.
646, 25 N. E. 353; Abbitt v. Railroad Co. (Tnd. Sup.) 40 X. E. 40; McCormack
v. Railroad Co., 18 App. Div. 333, 46 N. Y. Supp. 230.
21. 18 C. B. 115.
21) SHIPPER AND CARRIER OF GOODS. 57
was held that a passenger in a public conveyance was so identified
with the vehicle, although having no authority over the driver, as to
be chargeable with any negligence of the proprietors which contrib-
uted with the negligence of a stranger to injure the passenger. Al-
though this decision is no longer followed in either the English or
American courts, 2 with possibly one or two exceptions in the latter,
the case stands to-day as a monument to the absurdity of a doctrine
founded on the shadow of a principle and carried to such an extreme
as to be purely scholastic and eminently unjust.
But long prior to the decision in Thorogood v. Bryan, it was well
settled in England that as between the common carrier of goods and
the shipper, there was such privity of negligence as would prevent the
latter from recovering against a third person for injuries to which
the negligence of the former contributed. 3
The contract of agency between the shipper and the carrier is per-
fect. The carrier's care and control of the goods is absolute. The
2 The Bernina, 12 Prob. Div. 58, affirmed in 13 App. Cas. 1; Little v. Hack-
ett, 116 U. S. 366, 6 Sup. Ct. 391. In Chapman v. Railroad Co., 19 N. Y. 341,
Johnson, C. J., says: "He was a passenger on the Harlem cars, conducting
himself as he lawfully ought, having no control over the train or its manage-
ment; on the contrary, bound to submit to the regulations of the company
And the directions of their officers. To say that he is chargeable with negli-
gence because they have been guilty is plainly not founded on any fact of
conduct on his part, but is mere fiction." Webster v. Railroad Co., 38 X. Y.
260; Colegrove v. Railroad Co., 6 Duer, 382, affirmed in 20 N. Y. 492; Bar-
rett v. Railroad Co., 45 N. Y. 628; Busch v. Railroad Co., 29 Hun (X. Y.) 112;
Harvey v. Railroad Co., 23 X. Y. Wkly. Dig. 198; Bennett v. Transportation
Co., 36 X. J. Law, 225; New York, L. E. & W. R. Co. v. Steinbrenner, 47 X.
J. Law, 161; Transfer Co. v. Kelly, 36 Ohio St. 86; Town of Albion v. Het-
rick, 90 Ind. 545; Wabash, St. L. & P. R. Co. v. Shacklet, 105 111. 364; Cud-
dy v. Horn, 46 Mich. 596, 10 X. W. 32; Malmsten v. Railroad Co., 49 Mich. 94,
13 X. W. 373; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Louisville,
. & L. R. Co. v. Case's Adm'r, 9 Bush (Ky.) 728; Danville, L. & X. Turnpike
Co. v. Stewart, 2 Mete. (Ky.) 119; Philadelphia, W. & B. R. Co. v. Hogeland. 66
Md. 149, 7 Atl. 105; McMahon v. Davidson, 12 Minn. 357 (Gil. 232); Foil-
man v. City of Mankato, 35 Minn. 522, 29 X. W. 317; Hillnian v. Xewingtou,
57 Cal. 56; Tompkins v. Railroad Co., 66 Gal. 163, 4 Pac. 1165; Roach v. Rail-
road Co., 93 Ga. 785, 21 S. E. 67; Guif, C. & S. F. Ry. Co. v. Pendry, 87 Tex.
553, 29 S. W. 1038.
s Vanderplank v. Miller, 1 Moody & M. 169; Arctic Fire Ins. Co. v. Austin,
69 X. Y. 470.
58 CONTRIBUTORY NEGLIGENCE. (Ch. 2
owner himself could not exercise any greater authority than that of
the agent in possession. The representation is complete, and the
contributory negligence of the carrier should be imputed to the owner
of the goods to the extent of depriving him of any remedy against a
third party for a loss to which the wrongful act of his agent has con-
tributed. 4
22. PASSENGER AND COMMON CARRIER By weight
of authority, in the carriage of passengers, the neg-
ligence of the carrier contributing with that of a
third person to injure plaintiff is not a defense in
an action by the latter against the third person.
23. Although the passenger is not so identified with the
carrier that the latter's negligence is ipso facto im-
puted to him, he is, nevertheless, bound to exercise
ordinary care and prudence.
CONVERSELY If the negligence of the occupant of a ve-
hicle contributes with that of the driver and a third
person, the former cannot recover against the lat-
ter. 1
The relation of passenger and carrier stands on a different basis,
and requires further consideration. The carrier of passengers is
.not an insurer of their safe transportation. He has but a partial
and incomplete control over them, and is in no sense their representa-
tive. The contract is one of limited agency only, and, the conduct
of the carrier being beyond the influence and direction of the passen-
ger, there is no assignable reason why he should be responsible for it.
While, therefore, there is some lack of uniformity in the decisions, it
is believed that the weight of authority, and certainly that of reason,
* Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470; Duggins v. Watson, 15 Ark.
118; Broadwell v. Swigert, 7 B. Mon. (Ivy.) 39. See cases reviewed in Simp-
son v. Hand, 6 Wliart. (Pa.) 311.
22-23. i Beach, Contrib. Neg. (2d Ed.) 115. If the occupant voluntarily
rides with driver, not a common carrier, over ground obviously dangerous, he
cannot recover against the township. Crescent Tp. v. Anderson, 114 Pa. St. G43,
8 Atl. 379. Riding with back towards driver in approaching well-known rail-
road crossing, and failure to look and listen or take any precautions, is con-
tributory negligence. Dean v. Railroad Co., 129 Pa. St 514, 18 Atl. 718.
22-23) PASSENGER AND COMMON CARRIER. 59
sustains the proposition that in the carriage of passengers the negli-
gence of the carrier, contributing with that of a third person to in-
jure plaintiff, is not a defense in an action against the third person.*
When the injury by a third person is inflicted on a passenger in a
railroad car, the question of actual negligent conduct on his part i&
seldom raised, by reason of his entire lack of control over the man-
agement of the train. When, however, the conveyance is a carriage
or similar vehicle, the circumstances may be such that he is able
and bound to exercise some discretion regarding its management. In
such cases he is held to the use of such ordinary care and prudence
as the circumstances may demand. 3 But where one travels in a
vehicle over which he has no control, no relationship of principal and
agent exists between him and the owner or driver, and, although he
so travels voluntarily, he is not responsible for the negligence of the
driver when he himself is not chargeable with negligence.* Other-
2 Chapman v. Railroad Co., 19 X. Y. 341. Vide language of court in this
case, section 21, note 2, supra, Danville, L. & X. Turnpike Oo. v. Stewart, 2
Mete. (Ky.) 119; Gulf, C. & S. F. Ry. Co. v. Pendry, 87 Tex. 553, 29 S. W.
1038. See, also, Beach, Contrib. Xeg. (2d Ed.) 114.
s Little v. Hackett, 116 U. S. 366, 6 Sup. Ot. 391; Haff v. Railway Co., 14
Fed. 558; The Washington and The Gregory, 9 Wall. 513; Gray v. Railroad
Co., 24 Fed. 168; Masterson v. Railroad Co., 84 N. Y. 247; Robinson v. Rail-
road Co., 66 X. Y. 11; Dyer v. Railroad Co., 71 X. Y. 228; Smith v. Railroad
Co., 38 Hun (X. Y.) 33; Harris v. Uebelhoer, 75 X. Y. 169; Meenagh v. Buck-
master, 26 App. Div. 451, 50 X. Y. Supp. 85. But the extreme of this rule was
held in Brannen v. Gravel-Road Co., 115 Ind. 115, 17 X. E. 202, where it was
said that, unless plaintiff showed that he was not negligent in trying to stop
the intoxicated driver, he could not recover. See, however, Town of Knights-
town v. Musgrove, 116 Ind. 121, 18 X. E. 452, which distinguishes the former
case.
* Little v. Hackett, supra; Haff v. Railway Co., supra; Masterson v. Rail-
road Co., supra; Dyer v. Railroad Co., supra; Smith v. Railroad Co., supra;
Harris v. Uebelhoer, supra; Bennett v. Railroad Co., 133 X. Y. 563, 30 X. E.
1149; Alabama & V. Ry. Oo. v. Davis, 69 Miss. 444, 13 South. 693; Baltimore
& O. R. Co. v. State, 79 Md. 335, 29 Atl. 518, following Philadelphia, W. & B.
R. Co. v. Hogeland, 66 Md. 149, 7 Atl. 105; Davis v. Guarnieri, 45 Ohio St
470, 15 X. E. 350; Randolph v. O'Riordon, 155 Mass. 331, 29 X. E. 583; Pyle
v. Clark, 25 C. C. A. 190, 79 Fed. 744; Lake Shore & M. S. Ry. Co. v. Boyts,
16 Ind. App. 640, 45 X. E. 812; Missouri, K. & T. Ry. Co. of Texas v. Rogers,
91 Tex. 52, 40 S. W. 956; Harper v . Railroad Co., 22 App. Div. 273, 47 X. Y.
Supp. 933; Baltimore & O. R. Co. v. Adams, 10 App. D. C. 97; Bryant v. Rail-
60 CONTRIBUTORY NEGLIGENCE. (Ch. 2
wise, however, if the carrier or driver was in fact the agent of the
plaintiff, 5 or was incited or encouraged by him in his negligent acts. 6
4. NEGLIGENCE OF HUSBAND IMPUTED TO WIFE
In general, in an action by or for the wife, the con-
tributory negligence of the husband is not charge-
able to her, unless she knowingly adopted or con-
curred in his negligent act.
road Oo. (Tex. Civ. App.) 46 S. W. 82; Ritger v. City of Milwaukee, 99 Wis.
190, 74 X. W. 815; Robinson v. Navigation Co., 20 C. C. A. 86, 73 Fed. 883;
Weldon v. Railroad Co., 3 App. Div. 370, 38 N. Y. Supp. 206; Ouverson v. City
of Grafton, 5 N. D. 281, 65 N. W. 676; Cincinnati St. Ry. Co. v. Wright, 54
Ohio St. 181, 43 X. E. 688; Texas & P. Ry. Co. v. Curlin, 13 Tex. Civ. App.
505, 36 S. W. 1003; Roach v. Railroad Co., 93 Ga, 785, 21 S. E. 67; Gulf, C.
& S. F. Ry. Co. v. Pendry, 87 Tex. 553, 29 S. W. 1038; Union Pac. R. Co. v.
Lapsley's Adm'r, 2 C. C. A. 149, 51 Fed. 174, following Little v. Hackett, 116
U. S. 366, 6 Sup. Ct. 391; Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co., 41
Fed. 316; Whelan v. Railroad Co., 38 Fed. 15. But in Whittaker v. City of
Helena, 14 Mont. 124, 35 Pac. 904, and Otis v. Town of Janesville, 47 Wis. 422,
2 X. W. 783, it was held that the driver's negligence was imputed to a volun-
tary passenger, and the latter could not recover damages against the city for in-
juries caused by city's negligence, where the negligence of the driver contrib-
uted to the injury. And in Xew York, where plaintiff occupied seat with
driver and had equal knowledge and opportunity to discover the danger, the
driver's negligence was imputed to him; but this is clearly within our rule.
Brickell v. Railroad Co., 120 X. Y. 290, 24 X. E. 449. In Indiana the inclina-
tion is clearly towards imputing the driver's negligence to the passenger.
Brannen v. Gravel Rd. Co., 115 Ind. 115, 17 X. E. 202; Town of Knightstown
v. Musgrove, 116 Ind. 121, 18 X. E. 452. Also in Iowa, Slater v. Railway Co.,
71 Iowa, 209, 32 X. W. 264; but overruled in Xesbit v. Town of Garner, 75
Iowa, 314, 39 X. W. 516.
s In Brickell v. Railroad Co., 120 X. Y. 290, 24 X. E. 449, the court says:
"The rule that the driver's negligence may not be imputed to the plaintiff
should have no application to this case. Such rule is only applicable to cases
where the relation of master and servant or principal and agent does not ex-
ist, or where the passenger is seated away from the driver, or is separated
from the driver by an inclosure, and is without opportunity to discover danger
and inform the driver of it. It is no less the duty of the passenger where he
has the opportunity to do so than of the driver to learn of danger, and avoid
it, if practicable." Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Eaton
v. Railroad Co., 11 Allen (Mass.) 500; Stevens v. Armstrong, 6 X. Y. 435;
Omaha & R. V. Ry. Co. v. Talbot, 48 Xeb. 627, 67 X. W. 599.
Stafford v. City of Oskaloosa, 57 Iowa, 749, 11 X. W. 008.
2527) IMPUTED NEGLIGENCE. 61
There is an apparent conflict of authority as to the effect of the-
husband's contributory negligence on the wife's right of action
against a third person. Where the rights of the wife are still limit-
ed by the rules of the common law, it is apprehended that the con-
tributory negligence of the husband would bar the wife's recovery to-
the same extent which it would bar his own in an action to recover
for loss of services. 1 But in those states where the wife can bring,
such an action in her own name, and recover damages for her separate
use, it seems that the husband's negligence is not chargeable to her
unless she knowingly adopts or concurs in his negligent conduct, 2
or makes him her agent. 3
IMPUTED NEGLIGENCE.
25. The negligence of a third person may prevent a re-
covery by the plaintiff -when the relation is such
that, in law, the negligent conduct of the former is
imputed to the latter.
24. i McFadden v. Railway Co., 87 Cal. 464, 25 Pac. 681; Borough of
Xanticoke v. Warne, 106 Pa. St 373; Shear. & R. Xeg. (4th Ed.) 67; Honey
v. Railway Co., 59 Fed. 423.
2 Yahn v. City of Ottuinwa, 60 Iowa, 429, 15 N. W. 257; Xesbit v. Town of
Garner, 75 Iowa, 314, 39 X. W. 516; Peck v. Railroad Co., 50 Conn. 379. In Shef-
field v. Telephone Co., 36 Fed. 164, and Shaw v. Craft, 37 Fed. 317, the United.
States court holds that the husband's "contributory" negligence will not de-
leat the wife's recovery if defendant's negligence "directly" contributed to the
injury. But see Honey v. Railway Oo., 59 Fed. 423, where it is held that to
render the contributory negligence of a wife, regarded as the agent or servant
of her husband, imputable to him, the circumstances must be such that he
would be liable for her negligent act if it had resulted in injury to a third
person. Flori v. City of St. Louis, 3 Mo. App. 231; Hedges v. City of Kansas,
18 Mo. App. 62; Plate v. City of Cohoes, 24 Hun (X. Y.) 101, affirmed in 89'
N. Y. 219; Street v. Inhabitants of Holyoke, 105 Mass. 82; Louisville, X. A.
& C. Ry. Co. v. Creek, 130 Ind. 139, 29 X. E. 481; Lake Shore & M. S. Ry. Co.
v. Mclntosh, 140 Ind. 201, 38 X. E. 476; Galveston, H. & S. A. Ry. Co. v. Ku-
tac, 78 Tex. 473, 13 S. W. 327; Reading Tp. v. Telfer, 57 Kan. 798, 48 Pac.
134; Munger v. City of Sedalia, 66 Mo. App. 629; Finley v. Railway Co., 71
Minn. 471, 74 X. W. 174. In Carlisle v. Town of Sheldon, 38 Vt. 440, the court
follows the reasoning in Thorogood v. Bryan, and imputes the husband's neg-
ligence to the wife, ipsa relatione.
s Davis v. Guarnieri, 45 Ohio St 470, 15 X. E. 350; Honey v. Railway Co.,.
59 Fed. 423. See section 24, note 2, supra.
62 CONTRIBUTORY NEGLIGENCE. (Ch. 2
26. In an action by the parent in his own behalf for in-
juries to his minor child, the contributory negli-
gence of the parent or of the infant is a good de-
fense.
27. In an action in behalf of the child for injuries suffered
by him
(a) The failure on his part to exercise the degree of care
reasonably to be expected in the circumstances of
children of his age, if it contributes to the injury,
is a defense.
(b) If the negligence of the parent contributes to the in-
jury, the weight of authority and reason is opposed
to imputing his negligence to the infant.
When the action is for the benefit of the parent, it is founded on
the quasi relation of master and servant, the damnum being the tech-
nical loss of service. In theory, therefore, this class of actions does
not properly fall under this subdivision. It is, however, considered
at this time for the purpose of emphasizing the danger of confusing it
with those cases where the personal rights of the infant constitute the
issue. When the parent is the beneficiary of the action, the ordi-
nary rules of contributory negligence apply to his conduct, 1 and, if
the contributory negligence of the child is such as would bar an
25-27. i Glassey v. Railroad Co., 57 Pa. St. 172; Bellefontaine Ry. Co.
v. Snyder, 24 Ohio St. 670; Bellefontaine & I. R. Co. v. Same, 18 Ohio St. 399.
In the last two cases the actions were on the same state of facts, for the
benefit of the parent and child, respectively. In the former the contributory
negligence of the parent was held a bar, and in the latter was held no de-
fense. Pittsburg, A. & M. Ry. Co. v. Pearson, 72 Pa. St. 169; Philadelphia &
E. R. Co. v. Long, 75 Pa. St. 257; Isabel v. Railroad Go., 60 Mo. 475; Daley
v. Railroad Co., 26 Conn. 591; Albertson v. Railroad Co., 48 Iowa, 292; Pitts-
burgh, Ft. W. & C. Ry. Co. v. Vining's Adm'r, 27 Ind. 513; City of Chicago
v. Major, 18 111. 349; Louisville & P. Canal Co. v. Murphy, 9 Bush (Ky.) 522;
Williams v. Railroad Co., 60 Tex. 205; Baltimore & O. R. Co. v. State, 30 Md.
47; Walters v. Railroad Co., 41 Iowa, 71; Bamberger v. Railway Co., 95 Tenn.
18, 31 S. W. 163; Spokane & P. Ry. Co. v. Holt (Idaho) 40 Pac. 56; City of Pe-
kin v. McMahon, 154 111. 141, 39 X. E. 484; Xewdoll v. Young. 80 Hun, 364,
50 N. Y. Supp. 84; Chicago City Ry. Co. v. Wilcox, 138 111. 370, 27 X. E. 899.
JBut see Wright v. Railroad Co., 4 Allen (Mass.) 283.
25-27) IMPUTED NEGLIGENCE. 63
action for his own benefit, it will likewise bar the action of the par-
ent. 2
Degree of Care Required of the Parent.
In examining the conduct of the parent to determine whether he
has been negligent in the care of the child, reference must be had not
only to the age of the child, and the circumstances attending the acci-
dent, but to the parent's station and occupation in life, and his gen-
eral ability to place safeguards about his children. 3 To constitute a
defense to his action, it must appear that the parent was actually in
fault, 4 and that the fault clearly contributed to the injury. 5 To al-
2 Kennard v. Burton, 25 Me. 39; Burke v. Railroad Co., 49 Barb. (N. Y.)
529; Honegsberger v. Railroad Co., 2 Abb. Dec. (N. Y.) 378; Fitzgerald v.
Railway Co., 29 Minn. 336, 13 N. W. 168; Gilligan v. Railroad Co., 1 E. D.
Smith (X. Y.) 453; Chicago & G. E. Ry. Co. v. Harney, 28 Ind. 28; St. Louis
& S. F. Ry. Co. v. Christian, 8 Tex. Civ. App. 246, 27 S. W. 932. Per contra,
Ihl v. Railroad Co., 47 N. Y. 317.
s In Kay v. Railroad Co., 65 Pa. St. 277, Agnew, J., says: "But here a
mother toiling for daily bread, and having done the best she could, in the
midst of her necessary employment, loses sight of her child for an instant,
and it strays upon the track, with no means to provide a servant for her
child. Why should the necessities of her position in life attach to the child,
and cover it with blame? When injured by positive negligence, why should
it be without redress?" Philadelphia & R. R. Co. v. Long, 75 Pa. St. 257;
Pittsburg, A. & M. Ry. Co. v. Pearson, 72 Pa. St. 169; Isabel v. Railroad Co.,
60 Mo. 475; Frick v. Railway Co., 75 Mo. 542; O'Flaherty v. Railroad Co., 45
Mo. 70; Walters v. Railroad Co., 41 Iowa, 71; Hoppe v. Railway Co., 61 W T is.
357, 21 N. W. 227; Hewitt v. Railway Co., 167 Mass. 483, 46 N. E. 106.
4 McKenna v. Bedstead Co., 12 Misc. Rep. 485, 33 N. Y. Supp. 684, where a
child two years old ran into the street without the knowledge of the mother,
who was engaged in her household duties; and in Hedin v. Railway Co., 26
Or. 155, 37 Pac. 540, where a child three years old was sent out to play un-
der the care of a nine year old brother, and was injured while crossing the
street alone, the question of the contributory negligence of the parent was
held properly submitted to the jury. See, also, cases cited in section 27, note
3, supra. Gunn v. Railroad Co., 37 W. Va. 421, 16 S. E. 628; Alabama G. S.
R. Co. v. Dobbs, 101 Ala. 219, 12 South. 770; Weitzman v. Railroad Co., 33
App. Div. 585, 53 N. Y. Supp. 905; Wise v. Morgan (Tenn. Sup.) 48 S. W. 971;
Trow v. Thomas, 70 Vt 580, 41 Atl. 652; Ploof v. Traction Co., 70 Vt. 509, 41
Atl. 1017.
s The causal connection between plaintiff's negligence and the injury must
always be shown. See ante, section 8, note 1, and cases cited.
64: CONTRIBUTORY NEGLIGENCE. (Ch. 2
low a child to go unattended on the street is not negligence per se,*
and the test of conduct would seem to be whether the parent took that
degree of care of his child which a reasonably prudent parent of
the same class and means would ordinarily use in similar circum-
stances. 7
Negligence of child.
In applying the rules of contributory negligence to the conduct of
very small children, a problem full of difficulties is presented. To re-
quire of a mere infant any degree of judgment or discretion in avoid-
ing danger is manifestly absurd; and, on the other hand, to hold a
third person solely responsible for an injury to which the negligence
of the parent has contributed at least equally with his own, is an ap-
parent injustice. Yet decisions are not lacking where theTmerest babies
have been held, in law, bound) to exercise the same' judgment and care
in avoiding danger which would be required of an adult; and the ex-
treme doctrine of imputed negligence, first enunciated in the cele-
brated case of Hartfield v. Roper, 8 is to-day followed in many of our
state courts, although its rigor has been somewhat modified. The
theory of this case is concisely stated by Mason, J., in the later case
of Mangam v. Brooklyn R. Co. : 9 "An infant, in its first years, is
not sui juris. It belongs to another, to whom, discretion in the care
of its person is exclusively confided. The custody of the infant of
tender years is confided by law to its parents, or those standing in
loco parentis, and, not having that discretion necessary for personal
protection, the parent is held, in law, to exercise it for him, and in
cases of personal injuries received from the negligence of others the
law imputes to the infant the negligence of the parents. The infant
e Riley v. Transit Co., 10 Utah, 428, 37 Pac. 681; McVee v. City of Water-
town, 92 Hun, 306, 36 X. Y. Supp. 870; Bergen County Traction Co. v. Heit-
man's Adm'r (N. J. Err. & App.) 40 Atl. 661; Ehrmann v. Railroad Co., 23
App. Div. 21, 48 N. Y. Supp. 379; Karahuta v. Traction Co., 6 Pa. Super. Ct.
319.
' Philadelphia & R. R. Co. v. Long, 75 Pa. St. 257; Ihl v. Railroad Co., 47 X.
Y. 317; Chicago & A. R. Co. v. Gregory, 58 111. 226; Karr v. Parks. 40 Cal.
188; Metcalfe v. Railway Co., 12 App. Div. 147, 42 N. Y. Supp. 661; Gunn v.
Railroad Co., 42 W. Va, 676, 26 S. E. 546; Fox v. Railway Co., 118 Cal. 55, 50
Pac. 25; McNeil v. Ice Co. (Mass.) 54 N. E. 257.
s 21 Wend. (N. Y.) 615.
38 X. Y. 455.
28) IMPUTED NEGLIGENCE. 65
being non sui juris, and having a keeper, in law, to whose discretion,
in the care of his person, he is confided, his acts, as regards third per-
sons, must be held, in law, the act of the infant; his negligence the
negligence of the infant." But even in states where the decision is
still followed the severity of the rule has been greatly softened in
later decisions by insisting that the conduct of the child must first
be shown to be a proximate cause of his injury, and by holding, where
this does not appear, that the negligence of the parent in permitting,
him to be on the street was remote and immaterial. 10
SAME DEGREE OF CARE REQUIRED OF A CHILD.
28. The degree of care required of a child is that reason-
ably to be expected of children of a like age in
similar circumstances; but in their earliest years
they are incapable of discretion, and personal neg-
ligence cannot then be predicated of their conduct.
At what exact age a child ceases to be non sui juris, and acquires
a capacity for any degree of thoughtful action, is not determined, but
it is now generally held that in their earliest years they are entirely
without such capacity, and consequently incapable of legal negli-
gence. 1 Unless, however, the child is so young as to clearly preclude
10 Lynch v. Smith, 104 Mass. 52; and in this case the court further said
that, even if his parents were negligent in permitting him, a child 4 years-
and 7 months old, to cross the street alone, their negligence was not contribu-
tory, and he may recover, if in crossing he did no act which prudence would
have forbidden, and omitted no act which prudence would have dictated, what-
ever was his physical or intellectual capacity. See, also, cases cited in sec-
tion 27, notes 4 and 5, supra.
28. i A child under three years of age is prima facie incapable of negligence,
Barnes v. Railroad Co., 47 La. Ann. 1218, 17 South. 782. In North Penn-
sylvania R. Co. v. Mahoney, 57 Pa. St. 187, it was broadly held that contribu-
tory negligence was impossible in any child of "tender years." Presurnptioa
as to age of a "little child," Bottoms v. Railroad Co., 114 X. C. 699, 19 S. E. 730;.
Wiley v. Railroad Co., 76 Hun, 29, 27 N. Y. Supp. 722; Gunn v. Rail-
road Co., 42 W. Va. 676, 26 S. E. 546; Missouri Pac. Ry. Co. v. Prewitt (Kan.
App.) 51 Pac. 923; South Covington & C. St Ry. Co. v. Herrklotz (Ky.) 47 S.
W. 265; Rice v. Railroad Co. (La.) 24 South. 791; Wise v. Morgan (Teun. Sup.>
48 S. W. 971; McToy v. Oakes, 91 Wis. 214, 64 N. W. 748; Merritt v. Hjpen-
BAR.NEG. 5
66 CONTRr UTORY NEGLIGENCE. (Ch. 2
the supposition of any degree of rational conduct, it is generally left
to the jury to determine the measure of care that he should use. 2
But when he is either so old or so young as to leave no room for
doubt, it is the duty of the court to rule as to his capacity; 3 and
courts have varyingly extended the period in which, as a matter of
law, a child is non sui juris, from the time of his birth to the age of
7 years, 4 while in Indiana it has even been held that at 8 years his
capacity is a question for the jury. 6
stal, 25 Can. Sup. CL 150; Barnes v. Railroad Co., 47 La. Ann. 1218, 17 South.
782.
2 Western & A. R. Co. v. Young, 81 Ga. 397, 7 S. E. 912; McCarthy v. Rail-
way Co., 92 Mo. 536, 4 S. W. 516; Silberstein v. Railroad Co., 52 Hun, 611,
4 X. Y. Supp. 843; Bridger v. Railroad Co., 25 S. C. 24; Wilson v. Railroad
Co., 132 Pa, St. 27, 18 Atl. 1087; StrawbrJdge v. Bradford, 128 Pa. St. 200,
18 Atl. 34<>; Dorman v. Railroad Co. (City Ct. Brook.) 5 X. Y. Supp. 769; Chi-
cago City Ry. Co. v. Wilcox, 138 111. 370, 27 X. E. 899; Stone v. Railroad Co.,
115 X. Y. 104, 21 X. E. 712; Connolly v. Ice Co., 114 X. Y. 104, 21 X. E. 101;
Whalen v. Railway Co., 75 Wis. 654, 44 X. W. 849; Dealey v. Muller, 149 Mass.
432, 21 X. E. 763; Consolidated Traction Co. v. Scott, 58 X. J. Law, 682, 34
Atl. 1094; Wise v. Morgan (Tenn. Sup.) 48 S. W. 971; Penny v. Railway Co.,
7 App. Div. 595, 40 X. Y. Supp. 172.
sxagle v. Railroad Co., 88 Pa. St. 35, where Paxson, J., said: "At what
age, then, must an infant's responsibility for negligence be presumed to com-
mence? This question cannot be answered by referring it to the jury. That
would furnish us with no rule whatever. It would give us a mere shifting
standard, affected by the sympathies or prejudices of the jury in each par-
ticular case. One jury would fix the period of responsibility at 14, and an-
other at 20 or 21. This is not a question of fact for the jury; it is a ques-
tion of law for the court." Tucker v. Railroad Co., 124 X. Y. 308, 26 X. E.
916.
* Toledo, W. & W. Ry. Co. v. Grable, 88 111. 441; Callahan v. Bean, 9 Allen
(Mass.) 401; Evausville & C. R. Co. v. Wolf, 59 Ind. 89; Jones v. Railroad
Co., 36 Hun (X. Y.) 115; Ryan v. Railroad Co., 37 Hun (X. Y.) 186; Kreig v.
Wells, 1 E. D. Smith (X. Y.) 74; Central Trust Co. of Xew York v. Railway
o., 31 Fed. 246; Moynihan v. Whidden, 143 Mass. 287, 9 X. E. 645; O'Fla-
herty v. Railroad Co., 45 Mo. 70; Mangaru v. Railroad Co., 38 X. Y. 455; Mas-
check v. Railroad Co., 3 Mo. App. 600; Pittsburg, A. & M. Pass. Ry. Co. v.
Caldwell, 74 Pa. St. 421; Jeffersonville, M. & I. R. Co. v. Bowen, 40 Ind. 54.",;
McGarry v. Loomis, 63 X. Y. 104; Lehman v. City of Brooklyn, 29 Barb. (X.
Y.) 234; Gavin v. City of Chicago, 97 111. 66; Bay Shore R. Co. v. Han-is. <;7
Ala. 6; Morgan v. Bridge Co., 5 Dill. 96, Fed. Cas. Xo. 9.802; Frick v. Rail-
* Louisville, X. A. & C. Ry. Co. v. Sears, 11 Ind. App. 654, 3S X. E. 837.
28) IMPUTED NEGLIGENCE. 67
When it has been decided that the infant was possessed of some
capacity to avoid danger, the degree of care he should be required to
exercise in the circumstances of the particular case is always a ques-
tion for the jury, 6 under proper instructions to the effect that his con-
duct should be guided by such prudence and discretion only as is rea-
sonably to be expected of children of the same age in similar circum-
stances. 7 Nor does this apparent curtailing of the law of contribu-
way Co., 75 Mo. 542; City of Chicago v. Starr, 42 111. 174; Meeks v. Railroad
o., 52 Cal. 602; Gillespie v. McGowan, 100 Pa. St 144; Maekey v. City of
Vicksburg, 64 Miss. 777, 2 South. 178; Westbrook v. Railroad Co., G6 Miss.
560, 6 South. 321; City of Vicksburg v. McLain, 67 Miss. 4, 6 South. 774;
City of Pekin v. McMahon, 154 111. 141, 39 N. E. 484; Kentucky Hotel Co. v.
Camp, 97 Ky. 424, 30 S. W. 1010; Pierce v. Conners, 20 Colo. 178, 37 Pac. 721;
City of Pekin v. McMahon, 154 111. 141, 39 X. E. 484, where it was held that a
child of more than 7 years ceases to be non sui juris.
e Mitchell v. Motor Co., 9 Wash. 120, 37 Pac. 341. See, also, cases cited
in section 28, note 2, supra; Geibel v. Elwell, 19 App. Div. 285, 46 N. Y. Supp.
76; Price v. Water Co.. 58 Kan. 551, 50 Pac. 450; Thompson v. Rapid-Transit
Co., 16 Utah, 281, 52 Pac. 92; Walters v. Light Co. (Colo. App.) 54 Pac.
.960; Biggs v. Barb-Wire Co. (Kan. Sup.) 56 Pac. 4; Atchison, T. & S. F. R.
Co. v. Roemer, 59 111. App. 93; Kite-hell v. Railroad Co., 6 App. Div. 99, 39 X.
Y. Supp. 741; Schmidt v. Railway Co., 23 W T is. 186; Kerr v. Forgue, 54 111.
482; Philadelphia & R. R. Co. v. Spearen, 47 Pa. St. 300; Boland v. Railroa(J
Co., 36 Mo. 484; Oakland Ry. Co. v. Fielding, 48 Pa. St. 320; Philadelphia
City Pass. R. Co. v. Hassard, 75 Pa. St. 367; Manly v. Railroad Co., 74 X. C.
r,.".-; Mobile & M. R. Co. v. Crenshaw, 65 Ala. 566; Casey v. Railroad Co., 6
Abb. X. C. (X. Y.) 104; Byrne v. Railroad Co., 83 N. Y. 620; Galveston, H. &
H. Ry. Co. v. Moore, 59 Tex. 64; Houston & T. C. Ry. Co. v. Simpson, 60
Tex. 103; Meibus v. Dodge, 38 Wis. 300; Government St. R. Co. v. Hanlon,
53 Ala. 70; Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 534; McMillan
v. Railroad Co., 46 Iowa, 231; East Saginaw City Ry. Co. v. Bohn, 27 Mich.
503.
T Springfield Consol. Ry. Co. v. Welsch, 155 111. 511, 40 X. E. 1034; Wabash
R. Co. v. Jones, 53 111. App. 125; Hayes v. Xorcross, 162 Mass. 546, 39 X. E.
282. General rule, Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010;
Pierce v. Conners, 20 Colo. 178, 37 Pac. 721; San Antonio & A. P. Ry. Co. v.
Jazo (Tex. Civ. App.) 25 S. W. 712; Texas & P. Ry. Co. v. Mother, 5 Tex. Civ.
App. 87, 24 S. W. 79; Chicago, B. & Q. R. Co. v. Grablin, 38 Xeb. 90, 56 X. W T .
796; Wiswell v. Doyle, 160 Mass. 42, 35 N. E. 107; Central Railroad & Bank-
ing Co. v. Phillips, 91 Ga. 526, 17 S. E. 952; Brown v. City of Syracuse, 77
Hun, 411, 28 X. Y. Supp. 792; Omaha & R. V. Ry. Co. v. Morgan (Xeb.) 59 X.
W. 81; Mitchell v. Motor Co., 9 Wash. 120, 37 Pac. 341; Washington & G. Ry.
o. v. Gladrnon, 15 Wall. 401; Sioux City & P. R. Co. v. Stout, 17 Wall. 657; Me-
68 CONTRIBUTORY NEGLIGENCE. (Ch. 2
tory negligence work the injustice and hardship on the defendant that
is sometimes claimed. In contending against this alleged limitation
of the doctrine, it would seem that the obligation resting on the plain-
tiff to establish a positive breach of duty by the defendant is not in-
frequently overlooked. So notable a jurist as Alderson, B., in an
opinion involving this question, says: "The negligence, in truth, i&
attributable to the parent who permits the child to be at large. It
seems strange that a person who rides in his carriage without a serv-
ant, if a child receives an injury by getting up behind for the purpose
of having a ride, should be liable for the injury." 8 It is evident that
in the case supposed there is damnum absque injuria. If the driver
of a carriage, conducting himself lawfully, and being guilty of no
breach of duty, becomes the unwitting instrument of harm to another
person, whether infant or adult, he is without legal fault, and no-
action can be founded on his conduct. Thus, in a recent case, de-
fendant's grocery wagon is being driven along a well-traveled street
at a speed of about five or six miles an hour, with ordinary care, when
a boy of 5 years, with his mother's permission, starts to cross the
street. While the wagon is but a few feet distant, and close to the
curb, he darts quickly in front of it, and is run over in broad daylight.
Govern v. Railroad Co., 67 N. Y. 417; Ihl v. Railroad Co., 47 N. Y. 317; Rauch
v. Lloyd, 31 Pa, St. 358; Gray v. Scott, 66 Pa. St. 345; Robinson v. Cone, 22
Vt. 213; Lynch v. Smith, 104 Mass. 52; O'Connor v. Railroad Co., 135 Mass.
352; Birge v. Gardner, 19 Conn. 507; Bronson v. Town of Southbury, 37 Conn.
199; Baltimore & O. R. Co. v. State, 30 Md. 47; Galveston, H. & S. A. Ry_
Oo. v. dark (Tex. Civ. App.) 51 S. W. 276; Kinchlow v. Elevator Co., 57 Kan.
374, 46 Pac. 703; Frauenthal v. Gaslight Co., 67 Mo. App. 1; Weldon v. Rail-
road Co. (Del. Sup.) 43 Atl. 156; Baltimore & P. R. Co. v. Webster, 6 App.
D. C. 182; Calumet Electric St. Ry. Co. v. Van Pelt, 68 111. App. 582; Texas
& P. Ry. Co. v. Phillips, 91 Tex. 278, 42 S. W. 852; Smith v. Railway Co., 90
Fed. 783; Western & A. R. Co. v. Rogers, 104 Ga. 224, 30 S. E. 804; Felton v.
Aubrey, 20 C. C. A. 436, 74 Fed. 350; Georgia, C. & N. Ry. Oo. v. Watkins, 97
Ga. 381, 24 S. E. 34; Norton v. Volzke, 158 111. 402, 41 N. E. 1085; Baltimore
& O. S. W. Ry. Co. v. Then, 159 111. 535, 42 N. E. 971; Van Natta v. Power Co.,.
133 Mo. 13, 34 S. W. 505; Cincinnati St. Ry. Co. v. Wright, 54 Ohio St. 181,
43 N. E. 688; Kucera v. Lumber Co., 91 Wis. 637, 65 N. W. 374; Springfield
Consol. Ry. Co. v. Welsch, 155 111. 511, 40 N. E. 1034; Payne v. Railroad Co.,.
129 Mo. 405, 31 S. W. 885; Lynch v. Nurdin, 1 Q. B. 29.
s Lygo v. Newbold, 9 Exch. 302.
28) IMPUTED NEGLIGENCE. 69
Even at so young an age. he was held in fault, and not entitled to re-
cover. 9
^Machines and Places Attractive to Children.
But where dangerous instrumentalities, in their nature attractive
to children, are left in an exposed and accessible place where children
are likely to be, the law is well settled that the proprietor cannot
shield himself in an action for injuries caused thereby to an infant by
showing that the machine or article was not in itself dangerous, and
would have done no harm if the plaintiff had not meddled or tampered
with it. The turntable cases furnish the most familiar illustration
of this principle. 10 In Keffe v. Milwaukee & St. P. By. Co., 11 which
is a type of this class of cases, the defendant left its turntable, situ-
ated in a public place near the home of plaintiff, unfastened and un-
guarded. It revolved easily, and could be moved even by small chil-
dren. Plaintiff, a child of 7 years, was injured while playing upon
and revolving it, and it was held that he could recover against the
railroad company, the court citing with approval the rule established
in Sweeny v. Old Colony & N. R. Co. 12 that an owner or occupant of
premises is bound to keep them in a safe and suitable condition for
those who come upon and pass over them using due care, if he has held
out any inducement, invitation, or allurement, either express or im-
plied, by which they have been led to enter thereon. The court fur-
ther observes that what an express invitation would be to an adult
the temptation of an attractive plaything is to a child of tender years.
Hayes v. Xorcross, 162 Mass. 546, 39 N. E. 282.
10 Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railroad Co., 21 Minn. 207;
Kerr v. Forgue, 54 111. 482; Xagel v. Railway Co., 75 Mo. 653; Evansich v. '
Railway Co., 57 Tex. 126; Kansas Cent. Ry. Oo. v. Fitzsimmons, 22 Kan. 686;
Koons v. Railroad Co., 65 Mo. 592; Gulf, C. & S. F. Ry. Co. v. Styron, 66
Tex. 421, 1 S. W. 161; Bridger v. Railroad Co., 27 S. C. 456, 3 S. E. 860; Fer-
guson v. Railway Co., 77 Ga. 102; Gulf, C. & S. F. Ry. Co. v. McWhirter, 77
Tex. 356, 14 S. W. 20. Turntables: Carson v. Railway Co., 96 Iowa, 583, 65
N. W. 831; Merryman v. Railway Co., 85 Iowa, 634, 52 N. W. 545. St. Louis,
V. & T. R. Co. v. Bell, SI 111. 76, does not clearly follow the rule laid down
in the above decisions, but in this case the isolation of the position of the
turntable was material in determining defendant's negligence. Walsh v. Rail-
road Co., 145 X. Y. 301, 39 X. E. 1068, a recent Xew York case, is opposed to
general rule as above laid down.
11 21 Minn. 207.
12 10 Allen (.Mass.) 368.
70 CONTRIBUTORY NEGLIGENCE. (Ch. 2
These cases in no way disturb the doctrine of contributory negligence,
but mark a consistent and humane adaptation of the well-settled law.
Curiosity, the love of investigation, is as strong in children as in
adults, but is not, in them, coupled with mature discretion and judg-
ment; and if, in gratifying this curiosity, using such intelligence and
care as^their years may furnish, they are injured by an unfastened,
unguarded, and dangerous machine, their conduct is not negligent,
and cannot prevent their recovery. 18 The distinction between the
conduct of children in these cases in going upon and "meddling"
with the property of defendant and that of a voluntary trespasser is
this: That the children are attracted and induced to go upon de-
fendant's property by the defendant's own conduct, the danger being
hidden, and in the nature of a trap. 14
Same Negligence of the Parent not Imputed to the Child.
In an action for the benefit of the child for injuries negligently
caused by a stranger, the negligence of the parent or custodian is not
imputed to the infant, except in California, 15 Indiana, 16 Kansas, 17
Maine, 18 Maryland, 19 Massachusetts, 20 Minnesota, 21 and New York. 22
13 The English cases on this proposition are conflicting, and leave the mat-
ter in doubt in their courts. Lynch v. Nurdin, 1 Q. B. 29; Hughes v. Macfie, 2
Hurl. & C. 744; Mangan v. Atterton, L. R. 1 Exch. 230.
14 Keffe v. Railway Co., 21 Minn. 207, 210.
IB Karr v. Parks, 40 Cal. 188; Meeks v. Railroad Co., 52 Cal. 602.
is Pittsburgh, Ft. W. & C. Ry. Co. v. Vining's Adrn'r, 27 Ind. 513; although
the negligence of his custodians cannot be imputed to a child (eight years).
having capacity to exercise discretion in his own behalf, Louisville, N. A. &
C. Ry. Co. v. Sears, 11 Ind. App. 654, 38 N. E. 837; City of Evansville v.
Senhenn, 151 Ind. 42, 47 N. E. 634; MeXamara v. Beck (Ind. App.) 52 N. E.
707; City of Jeffersonville v. McHenry (Ind. App.) 53 N. E. 183.
IT Missouri, K. & T. Ry. Co. v. Shockman, 59 Kan. 774, 52 Pac. 446; Union
Pac. Ry. Co. v. Young, 57 Kan. 168, 45 Pac. 580; Atchison, T. & S. F. R.
Co. v. Smith, 28 Kan. 541; Smith v. Railroad Co., 25 Kan. 738.
is Leslie v. City of Lewiston, 62 Me. 468; Brown v. Railway Co., 58 Me. 384.
is McMahon v. Railway Co., 39 Md. 439.
20 Casey v. Smith, 152 Mass. 294, 25 N. E. 734; Lynch v. Smith, 104 Mass.
52; Gibbons v. Williams, 135 Mass, 333.
21 Fitzgerald v. Railway Co., 29 Minn. 336, 13 N. W. 168.
22 Hartfield v. Roper, 21 Wend. 615; McGarry v. Loomis, 63 X. Y. 104; Low-
ery v. Ice Co., 26 Misc. Rep. 163, 55 N. Y. Supp. 707. The imputation of the
parents' negligence is denied in the following states: ALABAMA. Government
St. R. Co. v. Hanlon, 53 Ala. 70; ARKANSAS, St. Louis, I. M. & S. Ry. Co. v.
28) IMPUTED NEGLIGENCE. 71
In the states named, the doctrine of Hartfield v. Koper, 23 is followed
with varying consistency, but with a tendency to somewhat abate its
harshness. In Maryland it has been held that if, by the exercise of
ordinary care, the defendant could have avoided the injury, the
neglect of the parents will not prevent recovery by a child non sui
juris; 24 also, in another case, 25 it was left to the jury to determine
whether a child of 5 years and 9 months had acted with the degree
of care and caution in the circumstances which might reasonably be
expected from a child of his age and intelligence. In Massachusetts
the courts have so reasonably and leniently considered the conduct
of both parent 26 and child 27 in determining the question of their
contributory negligence as to materially soften the rigor of the rule.
Rexroad, 26 S. W. 1037; CONNECTICUT, Birge v. Gardner, 19 Conn. 506;
GEORGIA, Ferguson v. Railway Co., 77 Ga. 102; Atlanta & C. Air-Line Ry.
Co. v. Gravitt, 93 Ga. 300. 20 S. E. 550; ILLINOIS, Chicago City Ry. Co. v.
Wilcox, 138 111. 370, 27 N. E. 899; Louisville & St. L. Consol. R. Co. v.
Gobin, 52 111. App. 565; IOWA, Wymore v. Mahaska Co., 78 Iowa, 396. 43
N. W. 264; KENTUCKY, South Covington & C. St. Ry. Co. v. Herrklotz, 47
S. W. 2G5; LOUISIANA, Westerfield v. Levis, 43 La, Ann. 63, 9 South. 52;
MICHIGAN, Power v. Harlow. 57 Mich. 107, 23 N. W. 606; Shippy v. Vil-
lage of Au Sable, 85 Mich. 280, 48 N. W. 584; MISSISSIPPI, Westbrook v.
Railroad Co., 66 Miss. 560, 6 South. 321; MISSOURI. Winters v. Railway Co.,
99 Mo. 509, 12 S. W. 652; NEBRASKA, Huff v. Aines, 16 Neb. 139, 19 N. W.
023: NEW HAMPSHIRE, Bisaillon v. Blood. 64 N. H. 565, 15 Atl. 147;
NEW JERSEY, Newman v. Railroad Co., 52 N. J. Law, 446, 19 Atl. 1102;
NORTH CAROLINA, Bottoms v. Railroad Co., 114 N. (J. 099, 19 S. E. 730;
OHIO, Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350; PENNSYLVANIA,
North Pennsylvania R. Co. v. Mahoney, 57 Pa. St. loV ; Philadelphia &
R. R. Co. v. Long, 75 Pa. St. 257; TEXAS, Gaiveston, H. & H. Ry.
Co. v. Moore, 59 Tex. 64; Texas & P. Ry. Co. v. Fletcher, b Tex. Civ. App.
736, 26 S. W. 446; VERMONT. Robinson v. Cone. 22 Vt. 2i3; Ploof v. Traction
Co., 69 Vt. 509, 41 Atl. 1017; VIRGINIA, Norfolk & P. R. Co. v. Ormsby, 27
Grat. 455; Norfolk & W. R. Co. v. Groseclose's Adm'r, 88 Va, 267, 13 S. E.
4.-,4: WASHINGTON, Roth v. Depot Co., 13 Wash. 525, 43 Pac. 641; WEST
VIRGINIA, Dicken v. Coal Co., 41 W. Va. 511. 23 S. E. 582.
23 21 Wend. (N. Y.) 615.
24 Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 534.
25 McMahon v. Railroad Co., 39 Md. 439.
2c Bliss v. South Hadley. 145 Mass. 91, 13 N. E. 352; Marsland v. Murray,
148 Mass. 91, 18 N. E. 680; Slattery v. O'Counell, 153 Mass. 94, 26 N. E. 430;
2- Mnttey v. Machine Co., 140 Mass. 337, 4 X E. 575; Lynch v. Smith, 104
Mass. 52,
72 CONTRIBUTORY NEGLIGENCE. (Ch. 2
Same Limitation of the New York Rule.
As the so-called "New York Rule," having its inception in Hartfleld
v. Roper, 28 continues to hold its place in that and several other states,
its limitations in decided cases should be carefully observed. Re-
stated, that rule holds that when a child, too young to be sui juris,
fails to exercise the degree of care to be expected of an adult in simi-
lar circumstances, the negligence of its parents, or those in loco
parentis, is imputed to it. Although, in theory, this doctrine applies
whenever a child is negligently exposed to harm by its custodian, in
the majority of actual cases where it has been enforced very young-
children have been allowed to run abroad and wander into places of
danger without suitable attendants. Moreover, it may be fairly said
that the full application of the principle is now restricted to cases
where the child is subjected, through the negligence of the parent, to
such a degree of exposure and risk as an adult could not encounter
voluntarily without being guilty of contributory negligence. Thus,
if a little child is permitted by its parent to cross a much-traveled
street, where it would be imprudent for an adult to attempt to pass,
he cannot recover for injuries inflicted by the negligent driving of a
carriage. And the converse of this proposition is equally true. If
the conduct of the child is marked by no act or omission which would
indicate a lack of prudence in an adult, the fact that his parents were
grossly negligent in allowing him to be unattended on the street
would not affect his right to recover for injuries negligently inflicted
on him by a stranger. 29 In Ihl v. Forty-Second St. & G. S. F. R. Co. 30
a child of 3 years was sent across defendant's track, unattended ex-
cept by a 9 year old child, and was struck by a car and killed. It was
held by the appellate court that this was not per se such negligence as
would defeat a recovery. If the deceased, it was ruled, exercised due
care, and the injury was caused solely by the negligence of defend-
ant's driver, the defendant was liable, without regard to the question
Wiswell v. Doyle, 160 Mass. 42, 35 N. E. 107; Creed v. Kendall, 156 Mass. 291,
31 N. E. 6; Mulligan v. Curtis, 100 Mass. 512; Lynch v. Smith, 104 Mass. 52.
28 21 Wend. 615.
aoMcGarry v. Loomis, 63 X. Y. 104; Ihl v. Railroad Co., 47 X. Y. 317;
O'Brien v. McGlinchy, 68 Me. 552.
o 47 N. Y. 317.
29 IMPUTED NEGLIGENCE. 73
whether it was negligence in the parents to let the child go with so
young an attendant.
SAME LUNATICS AND IDIOTS.
29. In general, the contributory negligence of lunatics and
others non compos mentis is determined by the
same principles that are applied to the conduct of
children.
In considering the conduct of lunatics and their custodians, as
affecting their right to recover for injuries negligently inflicted on
them by strangers, the same general principles apply as in the case of
children. 1 And as the degree of care required of children varies ac-
cording to their age, so more prudence is expected of one whose
mind is only slightly clouded than of one who is entirely bereft of rea-
son. As the mental condition of the lunatic is not ordinarily dis-
covered by his appearance, the public is not put on its guard to the
same extent as with children, whose stature and movements at once
proclaim their youth and immature faculties. 2 For this reason the
question of knowledge of the mental condition of the idiot is often
important in determining the negligence of the defendant. Thus,
one whose mind is merely dull, and who is capable of earning his
living, there being no apparent necessity of putting him under the
29. i Willetts v. Railroad Co., 14 Barb. (N. Y.) 585; Worthington v. Men-
eer. 96 Ala. 310, 11 South. 72; Johnson v. Railway Co., 67 Minn. 260, 69 X.
W. 900; Platte & D. Canal & Milling Co. v. Dowell, 17 Colo. 376, 30 Pac. 68;
Lynch v. Railway Co., 112 Mo. 420, 20 S. W. 642.
2 East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503; Pittsburg, A. & M. P.
liy. Co. v. Caldwell, 74 Pa. St. 421; Brennan v. Railroad Co., 45 Conn. 284;
Walters v. Railroad Co., 41 Iowa, 71, 76. In Robinson v. Cone, 22 Vt. 213. at
page 224, Redfleld, J., says: "And we are satisfied that although a child or
idiot or lunatic may, to some extent, have escaped into the highway through
the fault or negligence of his keeper, and so be improperly there, yet, if he
Js hurt by the negligence of the defendant, he is not precluded from his redress.
If one know that such a person is in the highway, or on a railway, he is
bound to a proportionate degree of watchfulness; and what would be but
ordinary neglect in regard to one whom the defendant supposed a person of
full age and capacity would be gross neglect as to a child, or one known to
be incapable of escaping danger."
74 CONTRIBUTORY NEGLIGENCE. (Ch. 2
protection of a guardian, is chargeable with the same degree of care
for his personal safety as are others of brighter intellect; but, if he
is so devoid of intelligence as to be unable to apprehend apparent
danger, one through whose negligence he is injured, having notice of
his mental incapacity, cannot escape liability on the ground of con-
tributory negligence. 3
PHYSICAL CONDITION AN ELEMENT OF CONTRIBUTORY
NEGLIGENCE.
30. The physical condition of plaintiff at the time of the
injury may properly be considered in determining
the degree of care to be exercised by both himself
and the defendant, reference being had to plain-
tiff's possible decrepitude, blindness, deafness, lame-
ness, and sex.
Physical condition is merely one of the circumstances to be con-
sidered in applying the test of ordinary care to the conduct under in-
vestigation, but is often all-important in determining liability. While
it is not negligence per se in an active, able-bodied man to get on or
off a car when it is moving slowly, 1 such an act would be clearly negli-
gent in one old, weak, sick, lame, or otherwise infirm. 2 Physical in-
firmities place on the afflicted person an obligation for increased
prudence and care. While a person cannot be held responsible for
failure to exercise a faculty which he does not possess, yet the knowl-
edge of his infirmity should render him more cautious about placing
himself in a position where his incapacity increases the danger, and
when necessarily, in a dangerous place the incapacity imposes the
obligation of an increased activity of the remaining unimpaired v
senses. 3 Thus deafness requires increased vigilance in the use of
s Worthington v. Mencer, 96 Ala. 310, 11 South. 72.
30. i Citizens' St. R. Co. v. Spahr, 7 Ind. App. 23, 33 X. E. 446; Chicago-
& A. R. Co. v. Byrum, 153 111. 131, 38 X. E. 578; Lewis v. Canal Co., 145 X. Y.
508, 40 X. E. 248; Schacherl v. Railway Co., 42 Minn. 42, 43 X. W. 837.
2 Cincinnati, H. & D. Ry. Co. v. Xolan, 8 Ohio Cir. Ct. R. 347; Chicago & A.
R. Co. v. Means, 48 111. App. 396; Briggs v. Railway Co., 148 Mass. 72, 19 X.
E. 19.
3 Chicago & X. E. Ry. Co. v. Miller, 46 Mich. 532, 9 X. W. 841; Hayes v. Rail-
road Co., Ill U. S. 228, 4 Sup. Ct 3G9; Central R. Co. v. Feller, 84 Pa. St.
30) PHYSICAL CONDITION AS AN ELEMENT. 75
the eyes, 4 and when crossing a railroad track it is negligent in a deaf
person not to keep a sharp lookout for trains. 5
Negligence will never be imputed to those who are physically de-
ficient for the mere reason that they are pursuing their ordinary avo-
cations when injured, 6 but they must still exercise ordinary care,
such as they are capable of using; and one with poor sight should
use greater care to avoid obstructions in the street than one whose
eyesight is normal. 7 The mere fact of blindness in one who, unat-
tended, walks the streets of a large city, does not warrant the con-
clusion of contributory negligence if he is injured by falling into a
cellar way negligently left open. 8
The sex of the injured party is also a proper matter to be consid-
ered by the jury in determining what was ordinary care in the circum-
stances, on the part of both plaintiff and defendant; 9 and, although
it has been held error to charge that the law requires a less degree
of care in a woman than in a man, 10 it is apprehended that, in certain
conditions, acts which in a man would be merely for the consideration
of the jury, as affecting the question of ordinary care, would in a
226; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Laicher v. Railroad
Co., 28 La. Ann. 320; Purl v. Railway Co., 72 Mo. 168; Cogswell v. Railroad
Co., 6 Or. 417; Morris & E. R. Co. v. Haslan, 33 X. J. Law, 147; Chicago, B. &
Q. R. Co. v. Triplett, 38 111. 482.
4 Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570; Fenneman v. Holden,
75 Md. 1, 22 Atl. 1049.
s Illinois Cent. R. Co. v. Buckner, 28 111. 299.
Sleeper v. Sandown, 52 X. H. 244; Davenport v. Ruckman, 37 X. Y. 5G8.
The test is always ordinary care in the circumstances. Cox v. Road Co., 33
Barb. (X. Y.) 414; Frost v. Inhabitants of Waltham, 12 Allen (Mass.) 85;
Thompson v. Inhabitants of Bridgewater, 7 Pick. (Mass.) 188; Renwick v.
Railroad Co., 36 X. Y. 133.
" Winn v. City of Lowell, 1 Allen (Mass.) 177; Sleeper v. Sandown, 52 X.
H. 244; Davenport v. Ruckman, 37 X. Y. 5G8; Peach v. City of Utica, 10 Hun
(X. Y.) 477.
s Smith v. Wildes, 143 Mass. 556, 10 X. E. 4443, followed in Xeff v. Inhabit-
ants of Wellesley, 148 Mass. 487, 20 X. E. 111.
a Hasseuyer v. Railroad Co., 48 Mich. 205, 12 X. W. 155; Benjamin v. Rail-
way Co., 160 Mass. 3, 35 X. E. 95.
ioHassenyer v. Railroad Co., supra. In this case the court said, in sub-
stance: A woman driving a horse presumably lacks the amount of skill,
knowledge, dexterity, and steadiness of nerve or coolness of judgment in
short, the same degree of competency that we would expect in a man.
76 CONTRIBUTORY NEGLIGENCE. (Cll. 2
woman be held to constitute contributory negligence, as getting off
.a moving car. 11
On the other hand, when the infirmity or incapacity of the person
exposed to danger is known, or. might reasonably be inferred, by the
defendant, it becomes his duty to use proportionate care to avoid in-
juring him. 13 If an engineer sees a person walking on the track, he
has the right, ordinarily, to assume that he will get out of the way
when the proper signal is given. "If, however, he sees a child of
tender years upon the track, or any person known to him to be, or
from his appearance giving him good reason to believe that he is, in-
sane, or badly intoxicated, or otherwise insensible of danger, or un-
able to avoid it, he has no right to presume that he will get out of the
way, but should act upon the belief that he might not, and should
therefore take means to stop his train in time." 13
SAME INTOXICATION.
31. Intoxication is always competent, but never conclu-
sive, evidence of contributory negligence. 1
11 In Snow v. Provincetown, 120 Mass. 580, the charge of the trial court was
approved: "Care implies attention and caution, and ordinary care is such a
degree of attention and caution as a person of ordinary prudence, of the
plaintiff's age and sex, would commonly and might reasonably be expected to
exercise under like circumstances;" and on appeal it was held unexceptionable.
And in City of Bloomington v. Perdue, 99 111. 329, the charge that plaintiff
was bound to observe the conduct of a woman of common or ordinary pru-
dence was held not to be erroneous.
12 Schierhold v. Railroad Co., 40 Cal. 447; Chicago & R. I. R. Co. v. Mc-
Kean, 40 111. 218; Reg. v. Longbottom, 3 Cox, Cr. Cas. 439; East Tennessee &
G. R. Co. v. St. John, 5 Sneed (Tenn.) 524; O'Mara v. Railroad Co., 38 N. Y.
445; City of Champaign v. White, 38 111. App. 233; Rex v. Walker, 1 Car. &
P. 320.
is Christiancy, C. J., in Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274.
31. i Abb. Tr. Ev. p. 585, 12, citing Stuart v. Machiasport, 48 Me. 477;
Baker v. City of Portland, 58 Me. 199. See, also, Seymer v. Town of Lake, 66
Wis. 651, 29 N. W. 554; Wynn v. Allard, 5 Watts & S. (Pa.) 524; Illinois
Cent. R. Co. v. Cragin, 71 111. 177; Cleghorn v. Railroad Co., 56 X. Y. 44;
People v. Eastwood, 14 N. Y. 562; Wood v. Village of Andes, 11 Hun (N.
Y.) 543; Cassedy v. Stockbridge, 21 Vt 391; Chicago, R. I. & P. R. Co. v.
Bell, 70 HI. 102; Fitzgerald v. Town of Weston, 52 Wis. 354, 9 N. W. 13; Bal-
timore & O. R. Co. v. State, 81 Md. 371, 32 Atl. 201.
31) PHYSICAL CONDITION AS AN ELEMENT. 77
Intoxication does not generally deprive a person entirely of his-
senses or his judgment, and, although it is a matter of common
knowledge that a man is not so prudent when he is drunk as when he-
is sober, the vital question remains, as always, did he use the ordi-
nary care of a sober man? 2 or, failing to use that ordinary care, was-
his negligence a proximate cause of his injury? 3 U A drunken man
is as much entitled to a safe street as a sober one, and .much more in
need of it;" * and if, in the exercise of ordinary care, he is injured
through the negligence of defendant, he may have his recovery. 5 But
the fact of intoxication in no degree lessens the amount of care which
he is required to take, and he is held to equal prudence with a sober
person in like circumstances. 6 He may, however, require that others
2 Alger v. Lowell, 3 Allen (Mass.) 402: Ford v. Umatilla Co., 15 Or. 313, 1&
Pac. 33; but his conduct in the circumstances may be such as to preclude any
right to recover, Wood v. Village of Andes, 11 Hun (N. Y.) 543; Cassedy v,
Stockbridge, 21 Vt. 391.
s Ward v. Railway Co., 85 Wis. G01, 55 X. W. 771; Alger v. City of Low-
ell, 3 Allen (Mass.) 406; Central Railroad & Banking Co. v. Phinazee, 93 Ga.
488, 21 S. E. GG; Robinson v. Pioche, 5 Cal. 4GO; Rhyner v. City of Menasha,
1)7 Wis. 523, 73 X. W. 41; Ward v. Railway Co., 85 Wis. 601, 55 N. W. 771;
Morris v. Railroad Co., 68 Hun, 39, 22 X. Y. Supp. 666; Bradwell v. Railway
Co., 153 Pa. St. 105, 25 Atl. 623; Lane v. Railway Co., 132 Mo. 4, 33 S. W. 645.
* Heydenfeldt, J., in Robinson v. Pioche, 5 Cal. 461.
5 Seymer v. Town of Lake, 66 AVis. 651, 29 N. W. 554; Stuart v. Machias-
port, 48 Me. 477; Ford v. Umatilla Co., 15 Or. 313, 16 Pac. 33; Weymire v.
Wolfe, 52 Iowa, 533, 3 X. W. 541; Loewer v. City of Sedalia, 77 Mo. 431; Al-
ger v. Oity of Lowell, 3 Allen (Mass.) 406; City of Salina v. Trosper, 27 Kan.
545; Baker v. City of Portland, 58 Me. 199, 205; Baltimore & O. R. Co. v.
Boteler, 38 Md. 568; Healy v. Mayor, etc., 3 Hun (X. Y.) 708; Ditchett v.
Railroad Co., 5 Hun (X. Y.) 165; Kingston v. Railway Co., 112 Mich. 40, 70 1
X. W. 315, 74 X. W. 230.
e Johnson v. Railroad Co., 104 Ala. 241, 16 South. 75; Ford v. Umatilla Co.,.
15 Or. 313, 16 Pac. 33. In the latter case the court says: "Whether the re-
spondent (plaintiff) was drunk or sober, he had a right to suppose that a
bridge open to the use of the public, and under control of the county officials,,
would bear up his load in crossing it; * * * and, because the respondent
might bo inclined to be more credulous when intoxicated than when sober,
it was no fact that would excuse the appellant. * * * There is no pre-
tense that respondent drove his team carelessly or recklessly, or did any act
which contributed to the injury, except in attempting to cross the bridge, and"
the appellant, in the manner before suggested, invited him to do that.'' And
it is no excuse for injuries caused by defendant when intoxicated that the-
78 CONTRIBUTORY NEGLIGENCE. (Ch. 2
shall exercise ordinary care in their conduct towards him, and his in-
toxication will not excuse them for failure so to do, or relieve them
from liability for injuries caused thereby. 7
Intoxicated Trespassers.
Although intoxication is never a defense to contributory negli-
gence, there would seem to be no valid reason why an intoxicated
trespasser should be treated by the law with greater severity than
a sober one. If it appears that a sober trespasser, in the same cir-
cumstances, and using the same degree of care, would be entitled to
recover for injuries caused by the negligence of the proprietor, it is
submitted that no degree of inebriety should change his legal status. 8
While this position is not strongly supported by decisions, few, if any,
cases can be found which directly refute it, although so eminent an
authority as Mr. Beach takes a radically different view of the propo-
sition, and says : "Drunkenness, however, on the part of a trespasser,
is universally held to be such negligence as will prevent entirely any
recovery of damages for injuries sustained at the time or by reason
of the trespass." 9 We fail to find any authorities for this proposi-
tion. It is true the courts have quite uniformly, and very consistent-
ly, held that trespassers upon railroad property cannot recover for
injuries suffered by reason of their intoxication; but it is believed
that the gist of this holding, in every case, lies in the finding, either
of fact or law, that their negligent conduct contributed to the harm,
not that the combination of drunkenness and trespass created an
absolute bar to recovery. 10
liquor was sold him by the plaintiff. Cassady v. Magher, 85 Ind. 228; John-
son v. Railroad Co., 61 111. App. 522.
7 Rommel v. Schambacher, 120 Pa. St. 579, 11 Atl. 779; Kean v. Railroad
Co., 61 Md. 154; Houston & T. C. R. Co. v. Reason, 61 Tex. 613.
In. Louisville, O. & L. R. Co. v. Sullivan, 81 Ky. 624, a drunken passenger
refused to pay his fare, and was negligently put off in the snow by the con-
ductor. Held, that he could recover. Memphis & C. R. Co. v. Jones, 2 Head
<Tenn.) 517.
Beach, Contrib. Neg. (2d Ed.) 391, 392.
10 Denman v. Railroad Co., 26 Minn. 357, 4 X. W. 605; McClelland v. Rail-
way Co., 94 Ind. 276; Yarnall v. Railway Co., 75 Mo. 575; Little Rock & Ft.
S. Ry. Co. v. Pankhurst, 36 Ark. 371; Houston & T. C. R. Co. v. Smith, 32
Tex. 178; Houston & T. C. R. Oo. v. Sympkins, 54 Tex. 615; Illinois Cent. R.
o. v. Hutchinson, 47 111. 408; Manly v. Railroad Co., 74 N. C. 655; Richard-
32) COMPARATIVE NEGLIGENCE. 79
The opinion of witnesses, other than experts, is competent to prove
intoxication, 11 and it is always a question for the jury.
COMPARATIVE NEGLIGENCE
32. It was formerly held in a few states that, where the
negligence of the defendant greatly outweighed
that of the plaintiff, slight negligence on the part
of the latter would not prevent a recovery, but the
doctrine is now practically obsolete.
The doctrine of comparative negligence exists in but one or two
states to-day, and, indeed, it is doubtful if any state is prepared to
admit frankly that the rule, pure and simple, obtains in its courts.
The rule is thus stated in one of the earlier cases in Georgia: "That,
although the plaintiff be somewhat in fault, yet, if the defendant be
grossly negligent, and thereby occasioned or did not prevent the mis-
chief, the action may be maintained." x This has been modified ma-
terially in later decisions, 2 and it may be said that the Georgia rule is
not yet settled. 3 although the tendency of their courts is to require
the jury to reduce the damages in proportion to the contributory
son v. Railroad Co., 8 Rich. Law (S. C.) 120; Felder v. Railroad Co., 2 McMui.
(S. C.) 403; Southwestern R. Co. v. Haukerson, 61 Ga. 114; Weymire v.
Wolfe, 52 Iowa, 533, 3 N. W. 541; Mulherrin v. Railroad Co., 81 Pa. St. 366.
11 Thomp. Xeg. p. 779, 2, and cases there collected; also see People v.
Eastwood, 14 N. Y. 562; Brannan v. Adams, 76 111. 331; Woolheather v. Ris-
ley, 38 Iowa, 486; McKee v. Nelson, 4 Cow. (X. Y.) 355; People v. Gaynor, 33
App. Div. 98, 53 X. Y. Supp. 86; Quinn v. O'Keeffe, 9 App. Div. 68, 41 X. Y.
Supp. 116; Felska v. Railroad Co., 152 X. Y. 339, 46 N. E. 613.
32. i Augusta & S. R. Co. v. McElmurry. 24 Ga. 75, substantially fol-
lowed, in Mayor, etc., of City of Rome v. Dodd, 58 Ga. 238. In Atlanta &
R. A. L. R. Co. v. Ayers, 53 Ga. 12, we find this modification of the rule:
"If it appears that both parties were guilty of negligence, and that the person
injured could not, by ordinary care and diligence, have avoided the conse-
quences to himself of the negligence of the company's agents, the plaintiff may
recover, but the jury should lessen the damages in proportion to the negligence
and want of ordinary care of the injured party." See, also, Macon & W. R.
Co. v. Davis, 27 Ga. 113; Flanders v. Meath, Id. 358.
2 Atlanta & R. A. L. R. Co. v. Ayers, 53 Ga. 12.
Beach, Coutrib. Xeg. (,2d Ed.) 92.
80 CONTRIBUTORY NEGLIGENCE. (Ch. 2
negligence of the plaintiff.* A similar result seems to be reached by
statute in Tennessee in actions against railroads, unless the plaintiff's
contributory negligence is the direct cause of his own injury. 5
In Kansas, from an early date, it has been quite uniformly held
that the plainiiff need not be entirely free from negligence to entitle
him to recover; but it would seem that the relative fault of the
parties must be in strong contrast, gross negligence of defendant
against slight negligence of plaintiff, with a similar comparison of
its causative effect. 8 This confusion of the degrees of negligence
with proximateness and remoteness of cause appears in the leading
case on this subject, the court saying: "An act that may be grossly
negligent, if it proximately contributes to the injury, may be reason-
ably careful, if it only remotely contributes thereto." 7 And in a
later case the following instruction is approved: ''If the jury believe
from the evidence that the plaintiff's negligence contributed to the
injury complained of, he cannot recover. But if such negligence was
only slight, or the remote cause of the injury, he may still recover,
notwithstanding such slight negligence or remote cause." 8 Thus, as
observed by Mr. Beach, 9 the doctrine is formulated in such a way as
to suggest the conclusion that "slight negligence" is synonymous with
negligence which is but a remote cause, and that "gross negligence"
means hardly more than negligence which is a proximate cause, a
mistaking of causation for negligence.
* Atlanta & R. A. L. R. Co. v. Ayers, 53 Ga. 12; Alabama G. S. Ry. Co. v.
Coggins, 32 C. C. A. 1, 88 Fed. 455; Southern Ry. Co. v. Watson, 104 Ga. 243,
30 S. E. 818.
B East Tennessee, V. & G. R. Co. v. Fain, 12 Lea, 35; Louisville, N. & G. S.
R. Co. v. Fleming, 14 Lea, 128; Dush v. Fitzhugh, 2 Lea, 307; Railroad Co.
v. Walker, 11 Heisk. 383; Southern R. Co. v. Pugh, 97 Tenn. 624, 37 S. W.
555.
Union Pac. Ry. Co. v. Rollins, 5 Kan. 167; Wichita & W. R. Co. v.
Davis, 37 Kan. 743, 16 Pac. 78; Caulkins v. Mathews, 5 Kan. 191; Sawyer v.
Sauer, 10 Kan. 466; Pacific R. Co. v. Houts, 12 Kan. 328; Kansas Pac. Ry.
Co. v. Pointer, 14 Kan. 37; Edgerton v. O'Neil, 4 Kan. App. 73, 46 Pac. 206;
Atchison, T. & S. F. R. Co. v. Henry, 57 Kan. 154, 45 Pac. 576; St. Louis &
S. F. Ry. Co. v. Stevens, 3 Kan. App. 176, 43 Pac. 434.
T Union Pac. Ry. Co. v. Rollins, 5 Kan. 167, at page 182.
s Sawyer v. Sauer, 10 Kan. 466.
Beach, Contrib. Neg. (2d Ed.) 87.
33) EVIDENCE BURDEN OF PROOF. 81
It appears that the doctrine is no longer recognized by the supreme
court of Illinois. 10
EVIDENCE BURDEN OF PROOF.
33. If contributory negligence is not disclosed by plain-
tiff's case, the burden of proving it is on the de-
fendant.
"The question as to burden of proof in respect to plaintiff's freedom
from negligence, and as to whether he should make the affirmative
averment that he exercised proper care and was free from negligence,
is new in this court, and is involved in uncertainty by the conflicting
and evasive decisions of the courts of other states. While some
courts hold that he must allege and affirmatively establish that he
was free from culpable negligence contributing to the injury, others
hold that his negligence is matter of defense, of which the burden of
pleading and proving rests upon the defendant." * The question,
which party shall shoulder the burden of proving contributory negli-
gence or freedom from fault, seems to be as far from a definite set-
tlement to-day as when the opinion from which the above is an ex-
cerpt was written. In the same case, Wagner, J., goes on to say:
''Negligence on the part of the plaintiff is a mere defense, to be set
up in the answer and shown like any other defense, though, of course,
it may be inferred from the circumstances proved by the plaintiff upon
the trial. It seems to be illogical, and not required by the rules of
good pleading, to compel a plaintiff to aver and prove negative mat-
ters in cases of this kind." On the other side, an equally high au-
thority says : "Wherever there is negligence on the part of the plain-
tiff, contributing directly, or as a proximate cause, to the occurrence
from which the injury arises, such negligence will prevent the plain-
tiff from recovery; and the burden is always upon the plantiff to es-
tablish either that he himself was in the exercise of due care, or that
the injury is in no degree attributable to any want of proper care on
10 City of Lanark v. Dougherty, 153 111. 163, 38 N. E. 892; Chicago & A.
R. Co. v. Kelly, 75 111. App. 490; Chicago, B. & Q. R. Co. v. Levy, 160 111. 385,
43 N. E. 357; Cicero & P. St. Ry. Co. v. Meixner, 160 111. 320, 43 N. E. 823;
Kinnare v. Railway Co., 57 111. App. 153.
33. i Thompson v. Railroad Co., 51 Mo. 190.
BAR.NEG. 6
82 CONTRIBUTORY NEGLIGENCE. (Ch. 2
his part." 2 This ruling is founded in good sense as well as sound
law, and is undoubtedly the generally accepted doctrine to-day
throughout this country. 3 Even in those states, however, where this
doctrine has been uniformly accepted, an occasional divergence oc-
curs which would seem to indicate a tendency to break away from
the rule. Thus, in Minnesota it has been uniformly held that, to
maintain an action, it must appear that the injury was occasioned by
negligence on defendant's part, and it must not appear that there was
contributory negligence on plaintiff's part; and, when the undisputed
facts of the case show contributory negligence on the part of the
plaintiff, it is proper for the court to rule, as a matter of law. That
the plaintiff cannot recover. 4 Notwithstanding this w y ell-settled rule,
however, the supreme court of Minnesota has recently held that the
plaintiff may establish a prima facie case, although his own uncdn-
troverted testimony discloses contributory negligence in law. 8
2 Wells, J., in Murphy v. Deane, 101 Mass. 466, citing Trow v. Railroad
Co., 24 Vt. 487; Birge v. Gardner, 19 Conn. 507.
s Allyn v. Railroad Co., 105 Mass. 77; Burns v. Railroad Co., 101 Mass. 50;
Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Rothe v. Railroad Co., 21
Wis. 256; Belief ontaine Ry. Co. v. Hunter, 33 Ind. 335; North Pennsylvania
R. Co. v. Heileman, 49 Pa. St. 60; McKee v. Bid well, 74 Pa. St. 218; Wilcox
v. Railroad Co., 39 N. Y. 358; Conner v. Railroad Co., 146 Ind. 430, 45 N. E.
662; Miller v. Miller, 17 Ind. App. 605, 47 N. E. 338; Whalen v. Gaslight Co.,
151 N. Y. 70, 45 N. E. 363; Padgett v. Railroad Co., 7 Kan. App. 736, 52 Pac.
578; Kammerer v. Gallagher, 58 111. App. 561; Campbell v. Mullen, <>0 111.
App. 497; City of Huntingburg v. First (Ind. App.) 43 N. E. 17; Wahl v.
Shoulders, 14 Ind. App. 665, 43 N. E. 458.
< Donaldson v. Railway Co., 21 Minn. 293; St. Anthony Falls Water-Power
Co. v. Eastman, 20 Minn. 277 (Gil. 249).
6 Cleary v. Packing Co., 71 Minn. 150, 73 N. W. 717. In the trial court the
defendant made a motion to direct a verdict on the ground that the plaintiff
had failed to make out a prima facie case, and an appeal was taken from the
order denying this motion. The appellate court reversed the order, and
directed judgment entered for defendant, on the ground that it conclusively
appeared that plaintiff was guilty of contributory negligence in law. On a
motion for a rearguinent the appellate court modified its ruling, and remanded
the case for a new trial, on the ground that the defendant, in making its
motion to direct a verdict, did not specify the contributory negligence of plain-
tiff as a ground; thus, in effect, holding that a plaintiff may make out a prima
facie case, although his contributory negligence in law conclusively appears
in its presentation.
33) EVIDENCE BURDEN OF PROOF. 83
Much time has been devoted by jurists and theorists to the dis-
cussion of the question whether a presumption of ordinary care or of
negligence exists as to the plaintiff's conduct; but it is believed that
in the practical consideration of the problem, as it presents itself in
trials, the want of harmony is not so great as it appears.
The gist of actionable negligence is injury, proximately caused by
the legal fault of the defendant. If the plaintiff proves these main
facts, he has made out a prima facie case, and need go no further.
Suppose, however, that he shows defendant's negligence and his own
damage; it remains to show the causal connection, and if it appears
that this has been in any degree broken, or interrupted or seriously
jostled, by his own wrong conduct, his proof is insufficient, and his
case will fail, unless he overcomes the presumption, now raised for
the first time, of want of ordinary care. And it is apprehended that
a slight disturbance of this causal connection by his own wrong con-
duct will be sufficient to raise the presumption of want of ordinary
care on the part of the plaintiff. Thus, if, in the development of his
case, it appears that in the circumstances a positive duty devolved
upon the plaintiff, he must show either performance, or inability to
perform, or that the nonperformance had no proximate influence on
the result of defendant's breach of duty, as the duty of a person
about to cross a railroad track to look and listen ; 6 or if it appears
that he w r as in an intoxicated condition at the time of the accident ; 7
or if the plaintiff, by reason of infirmity, is incapable of ordinary
care; 8 and, if the instrumentalities furnished by plaintiff were de-
fective, the presumption is raised against him, unless he shows that
he was not in fault in employing them. 9 A fortiori, where it appears
plainly that plaintiff's undoubted negligence contributed to the in-
jury. 10 On the other hand, the absence of any fault on the part of
the plaintiff must be inferred in some circumstances. So, if he proves
e Missouri Pac. Ry. Co. v. Lee, 70 Tex. 496, 7 S. W. 857; State v. Maine
Cent. R. Co., 76 Me. 357; Cleveland, C. & C. R. Co. v. Crawford, 24 Ohio St
631; Pennsylvania R. Co. v. Beale, 73 Pa. St 504.
T Button v. Railroad Co., 18 X. Y. 248; Fitzgerald v. Town of Weston, 52
Wis. 354, 9 X. W. 13; Stuart v. Machiasport, 48 Me. 477.
s Curtis v. Railroad Co., 49 Barb. (N. Y.) 148.
9 Winship v. Enfleld, 42 X. H. 197.
10 Sprong v. Railroad Co., 60 Barb. (X. Y.) 30; Stoeckman v. Railroad Co.,
15 Mo. App. 503.
84 CONTRIBUTORY NEGLIGENCE. (Ch. 2
that, while he was walking on a public sidewalk, he was struck by
a plank negligently dropped from defendant's building by his servant.
Here his case is complete, and he need not prove the absence of bar-
riers, that he looked up or heard no warning cry, or any other matter
to negative a presumption of carelessness.
In the opinion of Denio, J., in a New York case, 11 often cited a
expounding the rule of that state, which is supposed to place the bur-
den of proof on the plaintiff, we find the following: "The true rule,
in my opinion, is this: The jury must eventually be satisfied that the
plaintiff did not, by any negligence of his own, contribute to the in-
jury;" which is nothing more than a negative and illogical form of the
proposition that the plaintiff must prove that defendant's negligence
was the cause of his injury, and it goes without saying that this is not
proven if it appears in any way that the plaintiff's negligence in any
degree contributed to the injury.
The above would seem to be the only logical rule in all cases, and
it is well settled in many states and in the federal courts that the
burden of proving contributory negligence, where it does not appear
from the plaintiff's own case, is on the defendant. 12
11 Johnson v. Railroad Co., 20 N. Y. 04.
12 Walker v. Westfield, 39 Vt. 246; Smith v. Railroad Co., 35 N. H. 356;
Cassidy v. Angell, 12 R. I. 447; Delaware, L. & W. R. Co. v. Toffey, 38 N. J.
Law, 525; Pennsylvania R. Co. v. Weber, 76 Pa. St. 157; County Com'rs of
Prince George Co. v. Burgess, 61 Md. 29; Crouch v. Railway Co., 21 S. C.
495; Thompson v. Central Railroad & Banking Co., 54 Ga. 509; Mobile
& M. R. Co. v. Crenshaw, 65 Ala. 566; Dallas & W. R. Co. v. Spicker, 61 Tex.
427; Louisville, C. & L. R. Co. v. Goetz's Adm'x, 79 Ky. 442; Fowler v. Rail-
road Co., 18 W. Va. 579; Baltimore & O. R. Co. v. Whitacre, 35 Ohio St.
627; Hoth v. Peters, 55 Wis. 405, 13 N. W. 219; Hocum v. Weitherick, 22
Minn. 152; Stephens v. City of Macon, 83 Mo. 345; Lincoln v. Walker, 18
Neb. 244, 20 N. W. 113; Kansas City, L. & S. R. Co. v. Phillibert, 25 Kan.
405; Sanderson v. Frazier, 8 Colo. 79, 5 Pac. 632; Lopez v. Mining Co., 1
Ariz. 464, 2 Pac. 748; MacDougall v. Railroad Co., 63 Cal. 431; Grant v. Baker,
12 Or. 329, 7 Pac. 318; Hough T. Railway Co., 100 U. S. 213; Indianapolis
& St. Louis R. Co. v. Horst, 93 U. S. 291; Washington & G. Ry. Co. v. Glad-
mon, 15 Wall. 401; Morgan v. Bridge Co., 5 Dill. 96, Fed. Cas. No. 9,802; The
America, 6 Ben. 122, Fed. Cas. No. 282; Western Ry. Co. of Alabama v. Wil-
liamson, 114 Ala, 131, 21 South. 827; Consolidated Traction Co. v. Behr, 59
N. J. Law, 477, 37 Atl. 142; Sopherstein v. Bertels, 178 Pa. St. 401, 35 Atl.
1000; Doyle v. Railroad Co., 27 C. C. A. 264, 82 Fed. 869; Fitchburg R. Co.
v. Nichols, 29 C. C. A. 500, 85 Fed. 945; Louth v. Thompson (Del. Super.) 39
34; PLEADING CONTRIBUTORY NEGLIGENCE. 85
PLEADING CONTRIBUTORY NEGLIGENCE.
34. It is a general and almost universal rule that plaintiff
need not allege his freedom from fault. The ad-
missibility of proof of contributory negligence un-
der a general denial is not general, varying in dif-
ferent states.
In those states where the burden of proof is on the defendant, it
follows, as of course, that freedom from fault need not be alleged in
the complaint, 1 and, even in those states where the burden is on the
plaintiff, the same rule prevails, with one or two exceptions; 2 this
seeming inconsistency being explained on the ground that, if plain-
tiff proves that the injury complained of was proximately caused by
defendant's negligence, it must follow that plaintiff's fault did not
contribute to the result.
Of the states placing the burden on the plaintiff, Indiana appears
to be the only one which consistently requires the plaintiff to allege
that he was free from contributory negligence. 3
Atl. 1100; Wood v. Bartholomew, 122 N. C. 177, 29 S. E. 959; City of Hills-
fcoro v. Jackson (Tex. Civ. App.) 44 S. W. 1010; Houston & T. C. Ry. Co. v.
O'Neal (Tex. Civ. App.) 45 S. W. 921; Harrington v. Mining Co. (Utah) 53
Pac. 737; Rhyner v. City of Menasha, 97 Wis. 523, 73 N. W. 41; Pullman
Palace-Car Co. v. Adams (Ala.) 24 South. 921; Maxwell v. Railway Co., 1
Marv. 199, 40 Atl. 945; Mills v. Railway Co., 1 Marv. 269, 40 Atl. 1114;
Baker v. Railroad Co. (Mo. Sup.) 48 S. W. 838; Cox v. Railroad Co., 123 N. C.
04, 31 S. E. 848; Daly v. Hinz, 113 Cal. 366, 45 Pac. 693; Prosser v. Rail-
way Co., 17 Mont. 372, 43 Pac. 81; Union Stockyards Co. v. Conoyer, 41 Neb.
17, 59 N. W. 950; Omaha St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007;
Stewart v. City of Nashville, 96 Tenn. 50, 33 S. W. 613; Central Tex. & N. W.
Ry. Co. v. Bush, 12 Tex. Civ. App. 291, 34 S. W. 133.
34. i Holt v. Whatley, 51 Ala. 569; Robinson v. Railroad Co., 48 Cal.
409; Cox v. Brackett, 41 111. 222; Hocum v. Weitherick, 22 Minn. 152; Smith
v. Railroad Co., 35 N. H. 356; Potter v. Railway Co., 20 Wis. 533; Matthews
v. Bull (Cal.) 47 Pac. 773; Berry v. Railroad Co., 70 Fed. 193; Johnson v.
Improvement Co., 13 Wash. 455, 43 Pac. 370; Thompson v. Railway Co., 70
Minn. 219, 72 N. W. 962.
2 May v. Inhabitants of Princeton, 11 Mete. (Mass.) 442; Lee v. Gaslight
Co., 98 N. Y. 115.
Evansville & C. R. Co. v. Hiatt, 17 Ind. 102; Rogers v. Overton, 87 Ind.
411; Williams v. Moray, 74 Ind. 25. But it is sufficient to allege that the
86 CONTRIBUTORY NEGLIGENCE. (Ch. 2
In some states proof of contributory negligence is admissible un-
der a general denial, 4 while in others it must be expressly averred in
the answer. 6 There is no general rule on this subject, although we
find it thus stated by two of the leading authorities: "But evidence
of the plaintiff's fault is inadmissible under a general denial;" 6 and r
"The defense of contributory negligence is admissible under the gen-
eral plea of not guilty or under a general denial." 7
CONTRIBUTORY NEGLIGENCE AS QUESTION OF FACT.
35. The question of contributory negligence is generally
one of fact for the jury, and, unless the plaintiff's
conduct was palpably careless, it should not be de-
cided by the court. 1
injury was without fault on plaintiff's part, Gheens v. Golden, 90 Ind. 427;
Ohio & M. Ry. Co. v. Nickless, 71 Ind. 271; or even that it was wholly caused
by defendant's negligence, Brinkman v. Bender, 92 Ind. 234; Wilson v. Road 1
Co., 83 Ind. 326; City of Anderson v. Hervey, 67 Ind. 420; Peirce v. Oliver,
18 Ind. App. 87, 47 N. E. 485.
* St. Anthony Falls Water-Power Co. v. Eastman, 20 Minn. 277 (Gil. 249);
Cunningham v. Lyness, 22 Wis. 236; Ellet v. Railway Co., 76 Mo. 518; (but
see Stone v. Hunt, 94 Mo. 475, 7 S. W. 431); MacDonell v. Buffum, 31 How,
Prac. 154; Indianapolis & C. R. Co. v. Rutherford, 29 Ind. 82; Jonesboro &
F. Turnpike Co. v. Baldwin, 57 Ind. 86; Grey's Ex'r v. Trade Co., 55 Ala.
387; Denver, T. & Ft. W. R. Co. v. Smock, 23 Colo. 456, 48 Pac. 681; Chesa-
peake & O. Ry. Co. v. Smith (Ky.) 39 S. W. 832.
e Stone v. Hunt, 94 Mo. 475, 7 S. W. 431 (but see Ellet v. Railway Co., 76
Mo. 518); Western Union Tel. Co. v. Apple (Tex. Civ. App.) 28 S. W. 1022;
Willis v. City of Perry, 92 Iowa, 297, 60 N. W. 727; Martin v. Railway Co.,
51 S. C. 150, 28 S. E. 303; Clark v. Railway Co., 69 Fed. 543.
a Beach, Contrib. Neg. (2d Ed.) 443.
7 Shear. & R. Neg. (4th Ed.) 113.
35. i O'Brien v. McGlinchy, 68 Me. 552; Sleeper v. Railroad Co., 58 N,
H. 520; Fassett v. Roxbury, 55 Vt. 552; Brooks v. Railroad Co., 135 Mass.
21; O'Connor v. Adams, 120 Mass. 427; Beers v. Railroad Co., 19 Conn. 566;
Bell v. Railroad Co., 29 Him (N. Y.) 500; Thomas v. City of New York, 28
Hun (N. Y.) 110; Salter v. Railroad Co., 88 X. Y. 42; Orange & N. H. R, Co.
v. Ward, 47 N. J. Law, 560, 4 Atl. 331; North Pennsylvania R. Co. v. Kirk,
90 Pa. St. 15; Mayor, etc., of City of Baltimore v. Holmes, 39 Md. 243; Sheff
v. City of Huntington, 16 W. Va. 307; Central R. Co. v. Freeman, 66 Ga,
170; Louisville, C. & L. R. Co. v. Goetz's Adm'x, 79 Ky. 442; Hill v. Gust, 55
Ind. 45; Town of Albion v. Hetrick, 90 Ind. 545; Wabash, St. L. & P. Ry. Co.
35) CONTKIBUTORY NEGLIGENCE AS QUESTION OF FACT. 87
The same rules substantially govern the submission to the jury
of either the plaintiff's or defendant's negligence, due regard being
had to the rule of the particular court in placing the burden of proof.
Nor should the court withdraw the case from the jury for the rea-
son that to its mind the facts were so weak as to give no support to
the proposition of negligence, either of plaintiff or defendant. The
question is, rather, are the facts so weak, in the estimate of fair,
sound minds, that the law would not tolerate a verdict founded upon
them ? 2 If but one inference can be drawn from the evidence, it is,
of course, purely a question of law for the decision of the court.
Where the action is to recover for death caused by defendant's
negligence, there is a lack of harmony as to the presumption of negli-
gence on the part of plaintiff, there being no direct evidence on the
point; and this, even in those courts which hold that the burden of
proof is on the plaintiff. 3 In the courts where the defendant must
assume the burden, the discussion can hardly arise.
v. Shacklet, 105 111. 364; Anderson v. Morrison, 22 Minn. 274; Garrett v.
Railway Co., 36 Iowa, 121; Kelly v. Railroad Co., 70 Mo. 604; Swoboda v.
Ward, 40 Mich. 420; Kelley v. Railway Co., 53 Wis. 74, 9 X. W. 816; Fer-
naudes v. Railroad Co., 52 Cal. 45; Bierbach v. Rubber Co., 14 Fed. 826, 15
Fed. 490; Cunningham v. Railway Co., 115 Cal. 561, 47 Pac. 452; Town of
Salem v. Walker, 16 Ind. App. 687, 46 N. E. 90; Hadley v. Railroad Co. and.
App.) 46 N. E. 935; Union Pac. Ry. Co. v. Lipprand, 5 Kan. App. 484, 47 Pac.
(J25; Village of Culbertson v. Holliday, 50 Neb. 229, 69 N. W. 853; New York
& G. L. Ry. Co. v. Railway Co., 60 N. J. Law, 52, 37 Atl. 627; Klinkler v.
Iron Co., 43 W. Va. 219, 27 S. E. 237; Patton v. Railway Co., 27 C. C. A. 287,
82 Fed. 979; Herbert v. Southern Pac. Co., 121 Gal. 227, 53 Pac. 651; West
Chicago St. R. Co. v. Feldstein, 1G9 111. 139, 48 N. E. 193; Ashland Coal, Iron &
Railway Co. v. Wallace's Adm'r (Ky.) 42 S. W. 744; Stone v. Railroad Co.,
171 Mass. 536, 51 X. E. 1; Lillibridge v. McCann (Mich.) 75 N. W. 288; Hy-
gienic Plate Ice Mfg. Co. v. Railroad Co., 122 N. C. 881, 29 S. E. 575; Heck-
man v. Evenson, 7 N. D. 173, 73 N. W. 427; Mitchell v. Railway Co., 100
Tenn. 329, 45 S. W. 337; Reese v. Mining Co., 15 Utah, 453, 49 Pac. 824; Deis-
enrleter v. Malting Co., 97 Wis. 279, 72 X. W. 735; Ward v. Manufacturing
Co., 123 X. C. 248, 31 S. E. 495; Ryan v. Ardis, 190 Pa, St. 66, 42 Atl. 372;
Schwartz v. Shull (W. Va.) 31 S. E. 914.
2 Hart v. Bridge Co., 80 X. Y. 622. See, also, Xorthrup v. Railway Co., 37
Hun (X. Y.) 295; Greany v. Railroad Co., 101 X. Y. 419, 5 N. E. 425; Payne
v. Reese, l(fo Pa. St. 301.
s Where there was no direct evidence as to the care of the deceased, In-
diana, B. & W. Ry. Co. v. Greene, 106 Ind. 279, 6 N. E. 603; Cordell v. Rail-
88 CONTRIBUTORY NEGLIGENCE. (Ch. 2
In any event, if there is any evidence reasonably tending to show
contributory negligence on the part of plaintiff, the defendant is en-
titled to an instruction that plaintiff cannot recover if his negligence
in any degree contributed to the injury complained of, unless it fur-
ther appears that the defendant might, by the exercise of reasonable
care and prudence, have avoided the consequences of the injured
party's carelessness.*
road Co., 75 N. Y. 330. Where evidence was not sufficient to warrant a find-
ing that there was no negligence on the part of deceased, Reynolds v. Rail-
road Co., 58 N. Y. 248. Per contra, absence of evidence of ordinary care does
not justify a presumption of negligence, Massoth v. Canal Co., 64 N. Y. 524.
See, also, in general, Jones v. Railroad Co., 28 Hun (N. Y.) 364; Lindeman
v. Railroad Co., 42 Hun (N. Y.) 306.
* See ante, 8, notes 7, 8, and cases cited; Pittsburg, Ft. W. & C. Ry. Co.
v. Krichbaum's Adm'r. 24 Ohio St. 119; Baltimore & O. R. Co. v. Whittaker,
Id. 642. Also, see, Patterson v. Railroad Co., 4 Houst. (Del.) 103.
36) LIABILITY OF MASTER TO SERVANT. 89
CHAPTER HE.
LIABILITY OF MASTER TO SERVANT.
36. Duty of Master.
37. Appliances and Places for Work.
38. Selecting and Retaining Servants.
39. Rules and Regulations.
40. Promulgation of Rules.
41. Warning and Instructing Servants.
42. Limitation of Master's Duty.
43. Ordiaary Risks.
44. Known Dangers Assumed.
45. Unusual Dangers not Assumed.
46. Unknown Defects or Dangers.
47. Promise to Repair.
48. Compliance with Express Orders.
49. Servants and Fellow Servants.
50. Common Employment as Test.
51-52. Vice Principal.
53-54. Rule in Federal Courts.
55. Concurrent and Contributory Negligence.
56. Servants' Own Negligence as Proximate Cause.
DUTY OF MASTER.
36. It is the duty of the master, -which cannot be shifted
by delegation, to exercise ordinary care to protect
his servants from injury while in his employment, 1
and includes
36-37. i Hough v. Railway Co., 100 U. S. 213; Baltimore & O. & C.
R. Co. v. Rowan, 104 Ind. 88, 3 N. E. 627; Tissue v. Railroad Co., 112 Pa. St.
91, 3 Atl. 667; Noyes v. Smith, 28 Vt. 59; Ryan v. Fowler, 24 N. Y. 410;
Wabash R. Co. v. Kelley (Ind. Sup.) 52 N. E. 152; McGeary v. Railroad Co.
<R. I.) 41 Atl. 1007; Keown v. Railroad Co., 141 Mo. SO, 41 S. W. 926; Oliver
v. Railroad Co., 42 W. Va. 703, 26 S. E. 444; Sievers v. Lumber Co., 151 Ind.
642, 50 N. E. 877; Texas Cent. Ry. Co. v. Lyons (Tex. Civ. App.) 34 S. W.
362; Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S. E. 869; Burues
v. Railway Co., 129 Mo. 41, 31 S. W. 347; Gulf, W. T. & P. Ry. Co. v.
Abbott (Tex. Civ. App.) 24 S. W. 299; Morrisey v. Hughes. 65 Vt. 553. 27
Atl. 205. And it is error to charge that a railroad company owes a duty
90 LIABILITY OF MASTER TO SERVANT. (.Ch. 3
(a) The duty to provide proper opportunities and instru-
mentalities for the performance of the work.
(b) The duty to select competent fellow servants in suf-
ficient number.
(c) The duty to establish proper regulations.
SAME APPLIANCES AND PLACES FOR WORK.
37. The master is bound to use ordinary care in providing
a reasonably safe place in which, and reasonably
safe and proper materials and instruments with
which, the servant may do his work.*
to its employes to do all that human care, vigilance, and foresight can do.
consistently with the operating of its road, regarding all appliances. Cleve-
land, C., C. & St. L. R. Co. v. Selsor, 55 111. App. 685. That the duty cannot
be shifted by delegation, Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 647,
U Sup. Ct. 590, 593, where the court says, "No duty required of him for the
safety and protection of his servants can be transferred, so as to exonerate
him from such liability." On this point see, also, Booth v. Railroad Co., 73-
N. Y. 38, 40; Ford v. Railroad Co., 110 Mass. 240; Chicago & N. W. Ry. Co.
v. Jackson, 55 111. 492; Cooper v. Railroad Co., 24 W. Va. 37; Texas & P.
Ry. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707; Herdler v. Range Co., 136-
Mo. 3, 37 S. W. 115; Rollings v. Levering, 18 App. Div. 223, 45 N. Y. Supp.
942; Norfolk & W. R. Co. v. Ampey, 93 Va. 108, 25 S. E. 220; Denver &
R. G. R. Co. v. Sipes (Colo. Sup.) 55 Pac. 1093; Ferris v. Hernsheim (La.)
24 South. 771; Stewart v. Ferguson, 34 App. Div. 515, 54 N. Y. Supp. 615;
Wright v. Railroad Co., 123 N. C. 280, 31 S. E. 652; McCauley v. Railway
Co., 10 App. D. C. 560; Huber v. Jackson, 1 Marv. 374, 41 Atl. 92; Chicaga
& A. R. Co. v. Maroney, 170 111. 520, 48 N. E. 953; Edward Hines Lumber
Co. v. Ligas, 172 111. 315, 50 N. E. 225; Rice & Bullen Malting Co. v. Paulsen,
51 111. App. 123; G. H. Hammond Co. v. Mason, 12 Ind. App. 469, 40 N. E.
642; Northern Pac. R. Co. v. Poirier, 15 C. C. A. 52, 67 Fed. 881. Thus, in
the selection and dismissal of servants, Wright v. Railroad Co., 28 Barb. 80;.
Walker v. Boiling, 22 Atl. 294; in providing and maintaining suitable nia-
2 McCarthy v. Muir, 50 111. App. 510; Mclntyre v. Railroad Co., 163 Mass,
189, 39 N. E. 1012; Fenderson v. Railroad Co., 56 N. J. Law, 708, 31 AtL
767; Fosburg v. Fuel Co., 93 Iowa, 54, 61 N. W. 400; Galveston, H. & S. A.
Ry. Co. v. Gormley (Tex. Civ. App.) 27 S. W. 1051; Nordyke & Marmon Co. v.
Van Sant, 99 Ind. 188; Chicago & N. W. R. Co. v. Swett, 45 111. 197; Perry
v. Ricketts, 55 111. 234; Louisville & N. R. Co. v. Johnson, 27 C. C. A. 367,
SI Fed. 679.
37) APPLIANCES AND PLACES FOR WORK. 91
It is not incumbent upon the master to furnish the best or safest
equipment for the performance of the duty. It is sufficient if the
tools, materials, and facilities generally are reasonably suitable for
the prosecution of the work, and could be used with reasonable safety
if the workman exercised ordinary care. 3 It follows that it is not
necessary that the newest inventions or the most improved safeguards
should be adopted by the employer, 4 and, a fortiori, questions of mere
chinery. etc., Hough v. Railway Co., 100 U. S. 213; Fuller v. Jewett, 80 N. Y.
46; Benzing v. Steimvay, 101 X. Y. 547, 5 X. E. 449; Ford v. Railroad Co., 110
Mass. 240; in inspection of machinery, etc., Durkin v. Sharp, 88 N. Y. 225;
Brann v. Railroad Co., 53 Iowa. 595, 6 N. W. 5; Fay v. Railway Co., 30 Minn.
231, 15 X. W. 241; O'Xeil v. Railway Co., 9 Fed. 337; and in repairing ma-
chinery, etc., Shanny v. Androscoggin Mills, 66 Me. 420; Xorthern Pac. R.
Co. v. Herbert, 116 U. S. 642, 651, 6 Sup. Ct. 590; Bessex v. Railroad Co., 45
Wis. 477; Drymala v. Thompson, 26 Minn. 40, 1 N. W. 255.
s Illinois Cent. R. Co. v. Jones, 11 111. App. 324; Greenleaf v. Railroad Co.,
29 Iowa, 14: Payne v. Reese, 100 Pa. St. 301; Jones v. Granite Mills, 126
Mass. 84; Bajus v. Railroad Co., 103 N. Y. 312, 8 N. E. 529; Johnson v.
Mining Co., 16 Mont. 164, 40 Pac. 298; Fosburg v. Fuel Co., 93 Iowa, 54, 61
X. W. 400; St. Louis S. W. Ry. Co. v. Jagerman, 59 Ark. 98, 26 S. W. 591;
Xutt v. Railway Co., 25 Or. 291, 35 Pac. 653; Williams v. Railway Co., 119
Mo. 316, 24 S. W. 782; Kansas City & P. R. Co. v. Ryan, 52 Kan. 637, 35
Pac. 292; Atchison, T. & S. F. R. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204;
Watts v. Hart, 7 Wash. 178, 34 Pac. 423; Huber v. Jackson & Sharp Co., 1
Marr. 374, 41 Atl. 92; Chicago & E. I. R. Co. v. Garner, 78 111. App. 281;
Chicago, B. & Q. R. Co. v. Oyster (Xeb.) 78 X. W. 359; Fritz v. Light Co.
(Utah) 56 Pac. 90; Schwartz v. Shull (W. Va.) 31 S. E. 914; Last Chance Min-
ing & Milling Co. v. Ames, 23 Colo. 167, 47 Pac. 382; Quintana v. Refining
Co., 14 Tex. Civ. App. 347, 37 S. W. 369; Jones v. Shaw (Tex. Civ. App.) 41
S. W. 690; Gormully & Jeffery Mfg. Co. v. Olsen, 72 111. App. 32; Disano v.
Brick Co. (R. I.) 40 Atl. 7. Railroad companies are not bound to provide the
best appliances, Lake Shore & M. S. Ry. Co. v. McCormick, 74 Ind. 440;
Umback v. Lake Shore & M. S. Ry. Co., 83 Ind. 191; nor the most improved
machinery in a factory, Harsha v. Babicx, 54 111. App. 586; and it was held
error to charge that the appliances should be "of modern improvements and
safe," Galveston, H. & S. A. Ry. Co. v. Gormley (Tex. Civ. App.) 27 S. W.
1051.
4 Matteson v. Railroad Co., 62 Barb. (X. Y.) 364; Sweeney v. Envelope Co.,
101 X. Y. 520, 5 X. E. 358; Wabash Paper Co. v. Webb, 146 Ind. 303, 45 X. E.
474; Shadford v. Railway Co., Ill Mich. 390, 69 X. W. 661; Murphy v.
Hughes (Del. Super.) 40 Atl. 187; Bonner v. Bridge Co., 5 Pa. Super. Ct. 281;
Texas & P. Ry. Co. v. Thompson. 17 C. C. A. 524, 70 Fed. 944; Chicago & G.
W. Ry. Co. v. Armstrong, 62 111. App. 228; Wood v. Heiges, 83 Md. 257, 34
92 LIABILITY OF MASTER TO SERVANT. (Ch. 3
convenience or facility are immaterial. 8 And where the tools are
simple, and their construction and adaptability to the work within
the comprehension of ordinary, untrained intelligence, the user can-
not complain, after injury, that they were unsuitable, as a ladder
used for lighting lamps, which was not provided with hooks or spikes,
and, in consequence, slipped, and caused plaintiff to fall, after he had
used it with safety for some six weeks. 6
The Existence of the Relation.
A servant is one who is actually or impliedly engaged in rendering
service or assistance at the request and for the benefit of the master,
and the peculiar duties which the master owes the servant arise only
when the servant is thus employed in doing his work. At other
times, although the contract relation may continue, the master's duty
to him is no other or greater than he owes to any third person in like
circumstances, and the schedule hours of labor afford no material
test of the existence of the relation in any concrete case. 7 Ordinarily
the relation does not exist while the sen-ant is going to or from the
place of work, but, if the master provides transportation for the serv-
ant, the relation and concomitant duties exist w y hile he is being so
Atl. 872; Gulf, C. & S. F. Ry. Co. v. Warner (Tex. Civ. App.) 36 S. W. 118;
Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S. E. 869; France v. Rail-
road Co., 88 Hun, 318, 34 N. Y. Supp. 408; Rooney v. Cordage Co., 161 Mass.
153, 36 N. E. 789. Failure to provide "target switches" on railroad, Salters
v. Canal Co., 3 Hun (N. Y.) 338; nor (in the absence of statute) need a rail-
road company block its frogs, McGinnis v. Bridge Co., 49 Mich. 466, 13 N. W.
819; also Lake Shore & M. S. R. Co. v. McCormick, 74 Ind. 440; Philadelphia
W. & B. R. Co. v. Keenan, 103 Pa. St. 124; Burns v. Railroad Co., 69 Iowa,
450, 30 N. W. 25. Failure to use air brakes instead of hand brakes, when lat-
ter were considered reasonably safe and suitable, France v. Railroad Co., 88
Hun, 318, 34 N. Y. Supp. 408.
e Cook v. Manufacturing Co., 53 Hun, 632, 7 N. Y. Supp. 950; Hough v.
Railway Co., 100 U. S. 213; Baltimore & P. R. Co. v. Mackey, 157 U. S. 72,
15 Sup. Ot. 491.
o Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56; Guggenheim Smelting Co.
v. Flanigan (N. J. Err. & App.) 41 Atl. 844; Biddiscomb v. Cameron, 35 App.
Div. 561, 55 N. Y. Supp. 127.
T But where a laborer customarily ate his dinner in the master's pump house,
with his sanction, not having time to go home to dinner, and was there in-
jured by the negligent escape of steam, the master was held liable. Cleve-
land, C., 0. & St. L. R. Co. v. Martin (Ind. App.) 39 N. E. 759.
37) APPLIANCES AND PLACES FOR WORK. 9&
conveyed. Thus, where an employe" of a railroad company was passed
daily over the road, in going to and from his work, free of charge,
and by reason of a defective track the train on which he w 7 as riding
was derailed, it was held that while he was so riding the relation of
master and servant, and not that of common carrier and passenger,
obtained. 8 But if the servant pays any fare for such transportation,
even by a deduction from his wages, he has all the rights of a passen-
ger. 9
Safe Place to Work.
The general duty rests upon the master to see to it that the place
in which the servant must do the work is reasonably safe for the
purpose, 10 and in general to provide safe means of access and de-
parture. 11 In this connection is included the duty to foresee and
provide against dangers which, in the exercise of proper diligence,
s Seaver v. Railroad Co., 14 Gray (Mass.) 466; Moss v. Johnson, 22 111. 633;
McGuirk v. Shattuck, 160 Mass. 45, 35 X. E. 110.
oO'Donnell v. Railroad Co., 59 Pa, St 239; Vick v. Railroad Co., 95 N.
Y. 267. In the latter case it was held that, in the circumstances, the deduc-
tion did not amount to a payment of fare.
10 Fosburg v. Fuel Co., 93 Iowa, 54, 61 X. W. 400. Cf. Oollins v. Crimmin*
(Super. N. Y.) 31 N. Y. Supp. 860. Also, see Blondin v. Quarry Co., 11 Ind.
App. 395, 37 N. E. 812, affirmed in 39 N. E. 200; Austin v. Railroad Co., 172
Mass. 484, 52 N. E. 527; Callan v. Bull, 113 Cal. 593, 45 Pac, 1017; Parlin
& Orendorff Co. v. Finfrouck, 65 111. App. 174; Ryan v. Armour, 166 111. 568,
47 X. E. 60; Barber Asphalt Pav. Co. v. Odasz, 29 C. C. A. 631, 85 Fed. 754;
Gibson v. Sullivan, 164 Mass. 557, 42 X. E. 110; Smith v. Transportation Co.,
89 Hun, 588, 35 N. Y. Supp. 534; Mc-Kenna v. Paper Co., 176 Pa. St. 306, 35-
Atl. 131; Big Creek Stone Co. v. Wolf, 138 Ind. 496, 38 X. E. 52; Gulf, C. &
S. F. Ry. Co. v. Jackson, 12 C. C. A. 507, 65 Fed. 48; Curley v. Hoff (X. J. Err. &.
App.) 42 Atl. 731; San Antonio & A. P. Ry. Co. v. Brooking (Tex. Civ. App.)
51 S. W. 537. Illinois Cent. R. Co. v. Gilbert, 51 111. App. 404; Mississippi Cot-
ton Oil Co. v. Ellis, 72 Miss. 191, 17 South. 214; McGonigle v. Canty, 80 Hun, 301,
30 X. Y. Supp. 320; Plank v. Railroad Co., 60 X. Y. 607 (trench); Wilson v. Lin-
en Co.. 50 Conn. 433 (defective shafting); Benzing v. Steinway, 101 N. Y. 547,
5 X. E. 449; Ferren v. Railroad Co., 143 Mass. 197, 9 X. E. 608 (plaintiff
crushed between car and building); Sunney v. Holt, 15 Fed. 880 (unlighted
hatchway); Campbell v. Railroad Co. (Pa. Sup.) 2 Atl. 489.
11 Brydon v. Stewart, 2 Macq. 30; Buzzell v. Manufacturing Co., 48 Me. 113;:
Ferris v. Hernsheim (La.) 24 South. 771; Lauter v. Duckworth, 19 Ind. App_
535, 48 X. E. 864.
94 LIABILITY OF MASTER TO SERVANT. (Ch. 3
might have been anticipated. 12 But, like all general propositions,
this must be interpreted reasonably, and with due consideration for
the character of the work to be done. So, in tearing down an old
building, the master's duty is not to furnish a safe place for his
servants in which to do a work necessarily dangerous, but consists in
not subjecting them to a danger of which, in the exercise of due care,
he, but not they, should have knowledge. 13 And in general it may
be said that the requirement of providing a safe place in w r hich to
work does not apply to cases where the servant's work consists in
making dangerous places or things safe; 14 or where the business or
work consists in or necessitates the handling of unsafe or unsound
things, known to the servant to be so, as where the employment con-
sists in moving damaged and defective cars to the repair shops. 15
Moreover, if the place or appliance is put to an unusual test, 16 or a
use not reasonably to be anticipated, 17 the master is not responsible
for resulting injury.
Materials and Instruments.
The materials and instruments with which the servant is required
to labor must be reasonably safe and suited to the employment, due
reference being had to the character of the work. 18 The servant has
12 Prendible v. Manufacturing Co., 160 Mass. 131, 35 N. E. 675; Denning
v. Gould, 157 Mass. 563, 32 N. E. 862; Cougle v. McKee, 151 Pa. St. 602, 25
Atl. 115; Union Pac. Ey. Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. 65; Lineoski v.
Coal Co., 157 Pa. St 153, 27 Atl. 577; Linton Coal & Mining Co. v. Persons,
11 Ind. App. 264, 39 N. E. 214; Union Pac. Ry. Co. v. Erickson, 41 Neb. 1, 59
N. W. 347; Muncie Pulp Co. v. Jones, 11 Ind. App. 110, 38 N. E. 547; Hen-
nessy v. City of Boston, 161 Mass. 502, 37 X. E. 668; Norfolk & W. R. Co.
v. Ward, 90 Va. 687, 19 S. E. 849; Indiana Pipe Line & Refining Co. v. Neus-
baum, 21 Ind. App. 559, 52 N. E. 471.
is Clark v. Liston, 54 111. App. 578.
i* Fiualyson v. Milling Co., 14 C. C. A. 492, 67 Fed. 507. See, also, Gulf,
C. & S. F. Ry. Co. v. Jackson, 12 C. C. A. 507, 65 Fed. 48.
10 Flannagan v. Railway Co., 50 Wis. 462, 7 N. W. 337; on former appeal,
45 Wis. 98; Watson v. Railroad Co., 58 Tex. 434; Yeaton v. Railroad Corp.,
135 Mass. 418.
i Preston v. Railway Co., 98 Mich. 128, 57 N. W. 31.
1 7 Richmond & D. R. Co. v. Dickey, 90 Ga. 491, 16 S. E. 212.
isBuzzell v. Manufacturing Co., 48 Me. 113; Laning v. Railroad Co., 49 N.
Y. 521; Xordyke & Marrnon Co. v. Van Sant, 99 Ind. 188; Chicago & X. \V.
R. Co. v. Swett, 45 111. 197; Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 4.4 9;
"7) APPLIANCES AND PLACES FOR WORK. 95
the right to assume that all reasonable attention will be given by his
employer to his safety, so that he will not be needlessly exposed to
risks which might be avoided by ordinary care and precaution. 19
But it does not follow that a tool or implement which has become
worn, or even defective, if still useful, should be cast aside as dan-
gerous, unless its continued employment involves an apparent risk.
"Defect" is not synonymous with "danger." 20 The obligation of the
master to supply proper materials and instruments to his servants
is, as in other matters, largely one of good faith, and is, in every
situation, measured by the character and necessary exposures of the
business, 21 and the test of his liability would seem to be, not wheth-
er he omitted to supply something or do something which he could
have supplied or done, and which would have lessened the danger
or averted the injury, but whether, in the circumstances and the ex-
ercise of ordinary care and prudence, he failed to take the course
or precautions which a prudent and careful man would have adopt-
ed. 22
Inspecting and Keeping in Repair.
Moreover, it is the general duty of the master to inspect and keep
in repair and suitable condition the places of work, instruments, and
appliances; but the same limitation of reasonableness is placed upon
the degree of care which is in this respect required of the master.
And, having provided a reasonably safe and proper place or appliance,
Collyer v. Railroad Co., 49 N. J. Law, 59. 6 Ati. 437; Louisville & X. R. Co.
v. Semonis (Ky.) 51 S. W. 612; Jones v. Railway Co. (La.) 26 South. 86; But-
ler v. Railroad Co. (Sup.) 58 X. Y. Supp. 1061; Green v. Sansom (Fla.) 25
South. 332; Cleveland, C., O. & St. L. Ry. Co. v. Brown, 20 C. 0. A. 147, 73
Fed. 970; Central R. Co. of Xew Jersey v. Keegan, 160 U. S. 259, 16 Sup. Ct.
209; Xorthern Fac. R. Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843; Same
v. Charless. 162 U. S. 359, 16 Sup. CL 848; Hathaway v. Railway Co., 92
Iowa, 337, 60 X. W. 651; French v. Aulls, 72 Hun, 442, 25 N. Y. Supp. 188.
i Boyce v. Fitzpatrick, 80 Ind. 526; Western Coal & Mining Co. v. Berber-
ich, 36 C. C. A. 364, 94 Fed. 329; McFarlan Carriage Co. v. Potter (Ind. Sup.)
53 X. E. 465.
20 Little Rock & F. S. R. Co. v. Duffey, 35 Ark. 602; Xelson v. Car- Wheel
Co., 29 Fed. 840.
21 Devitt v. Railroad Co., 50 Mo. 302; Wonder v. Railroad Co., 32 Md. 411;
Myers v. W. C. De Pauw Co.. 138 Ind. 590. 38 X. E. 37.
22 Leonard Y. Collins, 70 X. Y. 90; Carroll v. Telegraph Co., 160 Mass. 152,
35 X. E. 45G.
96 LIABILITY OF MASTER TO SERVANT. (Ch. 3
he has a right to assume that it will be used intelligently and care-
fully, and he need not constantly inspect it to see that it does not
become unsafe through misuse or carelessness; as in the case of a
scaffold the boards of which are necessarily movable, the master
has the right to assume that they will be properly moved and ad-
justed, as occasion may require, and kept in place by the servant,
and, if the servant allows them to become so misplaced that in walk-
ing over them they give way, and he is injured, he cannot recover. 23
But where one has been injured through a defect in an appliance
which could have been discovered and remedied by proper inspection
and care, it is no defense to an action based thereon that the master
was not in fact informed of the defect or danger. 2 * And the duty
of inspection and care applies equally to places and instrumentalities
which the servant uses in the course of his employment, no matter
whether they are the actual property of the master or not; as in
the case of a railroad employe" who is required to handle cars not
belonging to the employing company, 25 or to run the cars of his own
employer over the tracks of another company. 26
as Jennings v. Iron Bay Co., 47 Minn. Ill, 49 N, W. 685; Wachsmuth v.
Crane Co. (Mich.) 76 N. W. 497; Coyle v. Iron Co. (N. J. Sup.) 41 Atl. 680;
Miller v. Railroad Co., 21 App. Div. 45, 47 N. Y. Supp. 285.
24Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 449; McFarlan Carriage
Co. v. Potter (Ind. Sup.) 53 X. E. 465; Union Show Case Co. v. Blindauer,
75 111. App. 358; Cleveland, C., C. & St L. Ry. Co. v. Ward, 147 Ind. 256, 45
X. E. 325, and 46 N. E. 462.
25 Gottlieb v. Railroad Co., 29 Hun (X. Y.) 637, affirmed in 100 N. Y. 462.
3 X. E. 344; O'Neil v. Railway Co., 9 Fed. 337. But see, also, Michigan Cent.
R. Co. v. Smithson, 45 Mich. 212, 7 X. W. 791; Baldwin v. Railroad Co.,
50 Iowa, 680; Ballon v. Railway Co., 54 Wis. 257, 11 X. W. 559; Mackin v.
Railroad Co., 135 Mass. 201; Baltimore & P. R. Co. v. Mackey, 157 U. S. 72, 15
Sup. Ct. 491; Dooner v. Canal Co., 164 Pa, St. 17, 30 Atl. 269; Atchison, T.
& S. F. R. Co. v. Myers, 11 C. C. A. 439, 63 Fed. 793; Union Stock-Yards
Co. v. Goodwin (Xeb.) 77 N. W. 357.
so Stetler v. Railway Ckx, 46 Wis. 497, 1 X. W. 112; Id., 49 Wis. 609, 6 N.
W. 303.
38) SELECTING AND RETAINING SERVANTS. 97
SAME SELECTING AND RETAINING SERVANTS.
38. It is the duty of the master to exercise ordinary care
in the selection and retention of his servants, -with
a view to employing a sufficient number, and only
such as are fairly skillful and competent, to the end
that co-employes may not be endangered in the per-
formance of their duty by the conduct of persons
who are not possessed of these reasonable qualifi-
cations. 1
If the master fails in the performance of this duty, he is liable
for any injury to his servant resulting therefrom; that is to say, if
the negligence, unskillfulness, or incompetency of a co-employe", such
as might have been reasonably anticipated or discovered by ordinary
care on the part of the master, is the cause of injury to a servant,
he can recover therefor against the employer. 2 This liability is
based on the master's supposed knowledge of the servant's incom-
petency, or, what amounts to the same thing, the means of knowl-
edge in the exercise of ordinary care; and it follows, of course, that
actual knowledge of incompetency, although increasing the respon-
sibility, is not essential. 3
- 38. i Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct 932; Cur-
ley v. Harris, 11 Allen (Mass.) 112, 121; Chicago & G. E. Ry. Co. v. Harney,
28 Ind. 28; Laning v. Railroad Co., 49 X. Y. 521; Crew v. Railway Co., 20
Fed. 87; Porter v. Machine Co., 94 Term. 370, 29 S. W. 227; McPhee v.
Scully, 163 Mass. 216, 39 N. E. 1007 (fellow servant obviously drunk at time
defendant ordered him to work); Norfolk & W. R. Co. v. Xuckol's Adm'r, 91
Va. 193, 21 S. E. 342 (duty of master to keep himself informed of servant's
competency); Jungnitsch v. Iron Co., 105 Mich. 270, 63 N. W. 296 (only rea-
sonable care required, and not such care as will reduce danger to a minimum).
2 Faulkner v. Railway Co., 49 Barb. (N. Y.) 324; Chicago & N. W. Ry.
Co. v. Swett, 45 111. 197; Chicago & G. E. Ry. Co. v. Harney, 28 Ind. 28;
Kordyke & Marmon Co. v. Van Sant, 99 Ind. 188; Blake v. Railroad Co., 70
Me. 60; Mann v. Canal Co., 91 X. Y. 495; Huntsinger v. Trexler, 181 Pa. St
497, 37 Atl. 574; Murphy v. Hughes (Del. Super.) 40 Atl. 187; Wright v.
Railway Co., 123 N. C. 280, 31 S. E. 652.
s Laning v. Radlroad Co., 49 X. Y. 521; Oilman v. Railroad Corp., 10 Allen
(Mass.) 233; Huntingdon & B. T. R. Co. v. Decker, Si Pa. St. 419.
BAR.XEG. 7
98 LIABILITY OF MASTER TO SERVANT. (Cll. 3
The mere fact of incompetency is not sufficient to establish the
responsibility of the master. In some cases the proof of incompe-
tency may be of such a nature as to raise an inference of knowledge
sufficient to sustain a verdict, although it would not raise a legal
presumption of notice. Thus, in an action by a coal miner for in-
juries sustained while being lowered into a mine, proof that the
operating engineer had theretofore always been a mule driver or
manual laborer was held to be merely evidence of negligence in his
selection for the consideration of the jury. 4 But, apart from all
question of notice, it should be observed that the individual negligent
act of the fellow servant which caused the injury complained of is
not in itself sufficient evidence of the fact of incompetency. 5
The number of employe's, also, should be sufficient to do the work
with reasonably safety, and to this end the master must exercise the
same reasonable degree of care to hire and maintain a fairly ade-
quate force. 6 And this duty is not discharged by the mere provision
of a sufficient number of men for the manual labor to be performed.
It may also require the stationing of lookouts, 7 patrols, and watch-
men ; 8 in short, there must be servants enough, not only for or-
dinary, but for extraordinary, occasions, and it will not do to say
that "one man cannot be in two places at one time." There must be
"a man for every place, as need may be." 9
< Joeh v. Dankwardt, 85 111. 331; Bunnell v. Railway Co., 29 Minn. 305, 13
N. W. 129; no presumption, Murphy v. Pollock, 15 Ir. C. L. 224; Wright v.
Railroad Co., 25 N. Y. 562; Harvey v. Same, 88 N. Y. 481; O'Loughlin v.
Same, 87 Hun, 538, 34 N. Y. Supp. 297.
s McCarthy v. Shipowners' Co., L. R. Ir. 10 Exch. 384; Hathaway v. Rail-
way Co., 92 Iowa, 337, 60 N. W. 651; liut a former commission of a similarly
incompetent act, if known to the master, is competent evidence of notice.
Wabash Western Ry. Co. v. Brow, 13 C. C. A. 222, 65 Fed. 941. On proof of
incompetency, see post, p. 100.
s Flike v. Railroad Co,, 53 X. Y. 549; Booth v. Same, 73 N. Y. 38. See,
also, Whitt. Smith, Neg. p. 125, etc., and cases cited; McMullen v. Railway
Co., 1 Mo. App. Rep'r, 230.
T Burlington & M. R. Co. v. Crockett, 19 Neb. 138, 26 N. W. 921, 24 Am. &
Eng. R. Gas. 390.
s Hardy v. Railway Co., 76 X. C. 5 (washout, and failure of railroad to
have a man at the break to warn the train).
o Read, J., in Hardy v. Railway Co., 76 X. C. 5,
38) SELECTING AND RETAINING SERVANTS. 99
If the injured sen-ant knew of the incompetency, 10 or had oppor-
tunities of knowledge equal to those of the master, 11 he cannot re-
cover.
Evidence*
Evidence of general reputation for incompetency is admissible as
tending to show notice; 12 as is also the previous record, when ob-
tainable by the master. 13 The decided weight of authority supports
the proposition that the ultimate fact of unfltness cannot be estab-
lished by proof of general reputation for incompetency. 14 Keputa-
tion is but a suggestion of what actual investigation will disclose.
If the disclosed fact does not accord with the reputation, the latter
cannot be proof of a fact which exists only as a rumor. Suppose
.a banker is reputed to be worth a million dollars. Actual investiga-
tion discloses that he is, in fact, insolvent. Is proof of his general
reputation competent to show his solvency? In Gier v. Los An-
geles Consol. Electric Ky. Co. 15 the court says: "It becomes ap-
parent, therefore, that, as evidence of reputation becomes necessary
only where there is an inability to furnish direct proof of the em-
ployer's knowledge, so it is proper only after the establishment of the
10 Parker v. Sample, 11 Ind. App. 688, 39 N. E. 173.
11 Bonnet v. Railway Co. (Tex. Civ. App.) 31 S. W. 525.
12 Driscoll v. City of Fall River, 163 Mass. 105, 39 N. E. 1003; Park v.
Railroad Co., 85 Hun, 184, 32 N. Y. Supp. 482; Norfolk & W. R. Co. v.
Hoover, 79 Md. 253, 29 Atl. 994; Monahan v. City of Worcester, 150 Mass.
439, 23 N. E. 228; Morrow v. Railway Co. (Minn.) 73 N. W. 973; Park v.
Railroad Co., 155 X. Y. 215, 49 X. E. 674; Galveston, H. & S. A. Ry. v. Hen-
ning (Tex. Civ. App.) 39 S. W. 302; Stoll v. Mining Co. (Utah) 57 Pac. 295.
13 Baltimore & O. R. Co. v. Camp, 13 C. C. A. 233, 65 Fed. 952.
14 Gier v. Railway Co., 108 Cal. 129, 41 Pac. 22; Gilman v. Railroad Co.,
13 Allen (Mass.) 433. In the latter case the court says: "It is indeed objected
that the admission of evidence that Shute had the general reputation of being
intemperate, was erroneous. But such evidence was admitted, as the report
expressly states, not for the purpose of showing that he was intemperate,
but for the purpose of showing that his habitual intemperance, which there
was other evidence tending to prove, was well known in the community.
This fact was competent to show that the defendants, if they used due care,
must have known that he was habitually intemperate, and therefore an unsuit-
able servant to be employed by them." And see Driscoll v. City of Fall River,
103 Mass. 105, 39 X. E. 1003.
is 108 Cal. 129, 41 Pac. 22, at page 24.
100 LIABILITY OF MASTER TO SERVANT. (Ch. 5
fact that the employe" is in truth an unfit person. And reputation
is not proof of that fact A man's reputation may be at variance
with his character or in accord with it. He may be reputed reck-
less, and in fact be careful. An employer is not bound to discharge
an employ^ merely because of his ill repute, but he is culpable if he
retains in his employ a servant with a bad reputation, well founded.
So it is that evidence of individual acts evincing negligence or in-
competency is admissible." And in a Massachusetts case the court
says: "A general reputation regarding the incompetency of a serv-
ant is admissible on the ground that it furnished some reason to-
believe that, if a master had exercised due care, he might have
learned or heard of the incompetency." The conclusion, supported
by the great weight of authority, is that the fact of incompetency
can be established only by specific acts. 18
Incompetency not Proof of Negligence.
Incompetency of the servant and his prior acts in that regard are
not admissible in proof of his negligence at the time of the injury
complained of. In Cunningham v. Los Angeles Ky. Co. 17 the law
i Driscoll v. City of Fall River, 163 Mass. 105, 39 N. E. 1003; Cosgrove v.
Pitman, 103 Cal. 274, 37 Pac. 232; Baulec v. Railroad Co., 59 N. Y. 356; Davis
v. Railroad Co., 20 Mich. 105; Norfolk & W. R. Co. v. Hoover, 79 Md. 253,
29 Atl. 994; Monahan v. City of Worcester, 150 Mass. 439, 23 N. E. 228;.
Lake Shore & M. S. Ry. Co. v. Stupak, 123 Ind. 210, 229, 23 N. E. 246.
115 Cal. 561, 47 Pac. 452; Warner v. Railway Co., 44 N. Y. 465; Mc-
Donald v. Savoy, 110 Mass. 49; Maguire v. Railroad Co., 115 Mass. 239; Whit-
ney v. Gross, 140 Mass. 232, 5 N. E. 619; Boggs v. Lynch, 22 Mo. 563;
Thompson v. Bowie, 4 Wall. 463; Morris v. Town of East Haven, 41 Conn.
252; Tenney v. Tuttle, 1 Allen (Mass.) 185; Bryant v. Railroad Co., 56 Vt. 710;
Dunham v. Rackliff, 71 Me. 345; Central Railroad & Banking Co. v. Roach,
64 Ga. 635; Jagger v. Bank. 53 Minn. 386, 55 X. W. 545. In Baltimore & O.
R. Co. v. Colvin, 118 Pa. St. 230, 12 Atl. 337, the court says: "The general
reputation of a flagman at a railroad crossing for carelessness is inadmissible
in evidence to prove his carelessness on a particular occasion. * * * It
was also error to admit the evidence offered to show that the flagman had
the reputation of being a careless and incompetent person for the place.
He may have had a bad reputation, and yet have discharged his duty faith-
fully on this occasion. The question was, what did he do? How did he
discharge his duty at this time? What he had done or left undone on former
occasions was wholly immaterial and irrelevant, and the only effect of the
admission of the evidence objected to was to excite the prejudices of the jury
against the flagman and his employer, and so indirectly and improperly iru-
39) RULES AND REGULATIONS. 101
on this point is thus tersely stated in the opinion of the court: "De-
fendant was responsible to plaintiff for a want of ordinary care only,
and whether it was in the exercise of such care was to be deter-
mined from a consideration of what actually occurred at the time
of the alleged negligent act, regardless of any fact affecting the gen-
eral character of the servant for skill or proficiency in the discharge
of his duties. The question was, did the servant exercise the ordi-
nary care to avoid the injury? If he did, the plaintiff could not
recover, no matter how wanting the servant may have been in gen-
eral competency; while, if he did not exercise such care, plaintiff
was entitled to recover, even if the servant possessed the utmost
degree of efficiency and skill in the performance of his duty. The
sole question, therefore, was, what was the conduct of the servant
at the time? and this was to be unembarrassed by any considera-
tion of his general qualifications." Where, therefore, the com-
petency of the servant is not in issue, this class of testimony is in-
admissible for any purpose; and, where the competency of the serv-
ant is in issue, evidence of this kind, even if properly introduced, can-
not be made the basis of improper argument by counsel to show
negligence at the time of the injury.
SAME RULES AND REGULATIONS.
39. For the protection of his servants, the master is fur-
ther obligated
(a) To prescribe and publish suitable rules, and
(b) To warn and instruct his servants.
peach his credit, and injure the defendant." In Fonda v. Railway Co. (Minn.)
74 X. W. 166, at page 168, the action being by a stranger, the court says:
"The defendant is liable, if at all, for the acts of its servant upon the doc-
trine of respondeat superior. If the motorman was negligent upon this occa-
sion, the defendant is liable, no matter how competent he was, or how habit-
ually careful he had been, on other occasions. On the other hand, if he was
not negligent on this occasion, the defendant is not liable, notwithstanding
that he may have been incompetent or habitually careless on former occa-
sions. * * * If the plaintiff could offer testimony as to the general incom-
petency or as to prior negligent acts or omissions of the motorman, then, with
equal propriety, the defendant, upon the issue of contributory negligence, might
offer evidence of plaintiffs general carelessness, or of his negligent acts on
other occasions."
102 LIABILITY OF MASTER TO SERVANT. (Ch. 3
40. PROMULGATION OF RULES It is the duty of the
master to prescribe and publish such suitable rules
as the circumstances may reasonably require for
the proper and safe transaction of the business. 1
This duty of the master to protect his servants by making suita-
ble rules for the safe management of the business becomes more
imperative in proportion to the danger and complication of the
work; 2 but whether any rule at all is required in the exercise of
ordinary care, in a particular case, or whether the one in effect at
the time of the injury was reasonably sufficient, are generally ques-
tions of fact for the jury. 3 The rules must also be sufficiently pub-
lished and brought to the attention of the workmen. 4 And this is
especially true regarding changes in established rules, as where
an accommodation train was altered to an express, and the running
time changed, without notice to an employe", who was run over and
39-40. i Lake Shore & M. S. Ry. Co. v. La valley, 36 Ohio St. 221; Pitts-
burg, Ft. W. & C. Ry. Co. v. Powers, 74 111. 341; and generally, Berrigan v.
Railroad Co., 131 N. Y. 582, 30 N. E. 57; Richmond & D. R. Co. v. Williams,
88 Ga. 16, 14 S. E. 120; Murphy v. Hughes (Del. Super.) 40 Atl. 187; Abel v.
Canal Co., 128 N. Y. 662, 28 N. E. 663; Morgan v. Iron Co., 133 N. Y. 666,
31 N. E. 234; Gordy v. Railroad Co., 75 Md. 297, 23 Atl. 607. The reasonable-
ness of such rule is a question of law. Kansas City, Ft. S. & M. Ry. Co. v.
Hammond, 58 Ark. 324, 24 S. W. 723; Little Rock & M. R. Co. v. Barry, 28
C. C. A. 644, 84 Fed. 944; Nolan v. Railroad Co., 70 Conn. 159, 39 Atl. 115;
Willis v. Railroad Co., 122 N. C. 905, 29 S. E. 941. The master must exercise
such supervision as to have reason to believe that the business is conducted
in pursuance to the rule. Warn v. Railroad Co., 80 Hun, 71, 29 N. Y. Supp.
897. Officers charged with notice of customary breach. Lowe v. Railway
Co., 89 Iowa, 420, 56 N. W. 519.
2 Slater v. Jewett, 85 N. Y. 61; Sheehan v. Railroad Co., 91 N. Y. 332;
Dana v. Railroad Co., 92 N. Y. 639.
s Kain v. Smith, 80 N. Y. 458; Abel v. Canal Co., 103 N. Y. 581, 9 N. E.
325; Ely v. Railroad Co., 88 Hun, 323, 34 N. Y. Supp. 739; Eastwood v. Min-
ing Co., 86 Hun, 91, 34 N. Y. Supp. 196; Moore Lime Co. v. Richardson's
Adm'r, 95 Va. 326, 28 S. E. 334.
* Haynes v. Railroad Co., 3 Cold. (Tenn.) 222; Bradley v. Railroad Co., 62
N. Y. 99; Chicago & N. W. R. Co. v. Taylor, 69 111. 461; Chicago, B. & Q.
R. Co. v. Oyster (Neb.) 78 N. W. 359; Whalen v. Railroad Co., 114 Mich.
512, 72 N. W. 323. Rules for making "flying switches," excessive speed of
locomotives running backwards, Cooper v. Railroad Co., 44 Iowa, 134.
40) PROMULGATION OF RULES. 103
killed. 5 And the master must also exercise ordinary care to see that
the rules and regulations are enforced. So, track repairers have a
right to rely on the customary signals being given by approaching
trains. 6 An accepted custom, uniformly acquiesced in, becomes a
rule, and is as much entitled to be relied on as though formally
promulgated, as that the person coupling cars should give the sig-
nals for the movement of the train. 7 But whether or not certain
rules have been established is a question for the jury. 8 As a mat-
ter of course, an arbitrary rule, framed for the convenience and
benefit of the master, cannot relieve him of a responsibility which
he is bound to carry, as that of inspecting appliances. So, one re-
quiring brakemen to examine brakes before leaving a terminal sta-
tion, and report any found out of order. 9 If a servant knowingly
violates reasonable rules, or, knowing of their habitual violation
by fellow servants, fails to make objection, or report the same, such
conduct may constitute contributory negligence; 10 but the violation
may be so universal as to constitute a custom, and, if known to the
master, will not prevent recovery. 11 If the servant bases his right
to recover on the failure of the employer to prescribe and enforce
suitable rules, such failure must be affirmatively proved. 12
s Baltimore & O. R. Co. v. Whittington's Adm'r, 30 Grat. (Va.) 805.
e Erickson v. Railroad Co., 41 Minn. 500, 43 N. W. 332; Moran v. Railway
Co., 48 Minn. 46. 50 N. W. 930; Schulz. v. Railway Co., 57 Minn. 271, 59
X. W. 19L'; Anderson v. Mill Co., 42 Minn. 424, 44 N. W. 315; Northern
Pac. R. Co. v. Charless, 7 U. S. App. 359, 2 C. C. A. 380, and 51 Fed. 562;
Alabama G. S. R. Co. v. Fulghum, 94 Ga. 571, 19 S. E. 981. Rules not required
by nature of business, Texas & N. O. Ry. Co. v. Echols, 87 Tex. 339, 27 S. W.
60, 28 S. W. 517.
T Kudik v. Railroad Co., 78 Hun. 492, 29 N. Y. Supp. 533; Rutledge v. Rail-
way Co., 123 Mo. 121, 24 S. W. 1053. affirmed 27 S. W. 327.
s Gulf, C. & S. F. Ry. Co. v. Finley, 11 Tex. Civ. App. 64, 32 S. W. 51.
9 Louisville & X. R. Co. v. Orr, 91 Ala. 548, 8 South. 360; Kerns v. Railway
Co., 94 Iowa, 121, 62 X. W. 692. But see Louisville, E. & St. L. Consol. R.
Co. v. Utz, 133 Ind. 265, 32 X. E. 881.
10 Lake Shore & M. S. Ry. Co. v. Knittal, 33 Ohio St 468; Drake v. Rail-
road Co., SO Hun, 490, 30 X. Y. Supp. 671.
11 Strong v. Railway Co., 94 Iowa. 380, 62 N. W. 799; Chicago & W. I.
R. Co. v. Flynn, 154 111. 448, 40 X. E. 332; 54 111. App. 387, affirmed.
12 Eose v. Railroad Co., 58 X.,Y. 217; Texas & N. O. R. Co. v. Tatrnan, 10
Tex. Civ. App. 434, 31 S. W. 333.
104 LIABILITY OF MASTER TO SERVANT. (Ch. 3
Private Rules as Affecting Strangers.
Although falling under another division of this subject, it is proper
to call attention at this time to the fact that the infraction of pri-
vate rules of the master, adopted for the benefit of his employe's,
and the safe conduct of his business, is not admissible in evidence
in an action by a stranger, 13 unless where the rules have been so
long in use as to establish a custom, or where the stranger plain-
tiff, having knowledge of them, relied upon them. 14 The degree of
care required in any particular case is determined by the common
law, and is not affected by a city ordinance requiring street cars,
in certain cases, to be stopped "in the shortest time possible." 15
And so the degree of care can in no, case be determined by the pri-
i Louisville, N. A. & C. Ry. Co. v. Berkey, 136 Ind. 181, 35 N. E. 3; Louis-
ville, E. & St. L. Consol. R. Co. v. Utz, 133 Ind. 268, 32 N. E. 881; Central
Railroad & Banking Co. v. Ryles, 84 Ga. 420, 11 S. E. 499.
i* Larson v. Ring, 43 Minn. 88, 44 N. W. 1078; Same v. Railroad Co.,
43 Minn. 423, 45 N. W. 1096; Fonda v. Railway Co., 71 Minn. 438, 74 N. W.
166.
10 Fath v. Railway Co., 39 Mo. App. 447. In this case the court said:
"We are inclined to agree with the defendant on the second proposition. The
municipal assembly, in paragraph 4, not only undertook to regulate the run-
ning of street cars, but endeavored to legislate on the subject of diligence as
an abstract question. The question is whether the ordinance is valid for the
purpose of establishing a different degree of care to be exercised by the de-
fendant than that exacted by the common law. It must be conceded that the
city council had the right to prescribe all reasonable rules and regulations for
the government of street railways, and under the power thus conferred its
ordinances regulating the speed of cars, the motor power to be used, the
construction of the cars, and other regulations, must be upheld. But beyond
this it cannot go. It cannot prescribe such duties, and then determine the
degree of care to be used in their performance. In controversies between
third persons and a street railway, growing out of an alleged failure to prop-
erly observe such regulation, the degree of diligence to be exercised by the
defendant in the discharge of the duty imposed must be determined by the
application of common-law principles, and not by another and different rule
provided in the ordinance. In the case under consideration the ordinance re-
quires the car to be stopped 'in the shortest space and time possible.' In the
discharge of the duty imposed the ordinance demands the exercise of the
'greatest possible diligence,' whereas the general law exacts reasonable care.
To this extent the ordinance in question is inconsistent with the law of the
state."
41) WARNING AND INSTRUCTING SERVANTS. 105
rate rules adopted by the master, which may involve a greater or
less degree of prudence than that established by the common law.
41. WARNING AND INSTRUCTING SERVANTS Rea-
sonable precaution for the safety of his servants
further requires the master to point out such dan-
gers as are not readily discoverable by the servant
in the exercise of ordinary care.
The converse of this proposition is equally true, that the master
need not warn the servant of those ordinary hazards which are pat-
ent to the average workman, or discoverable in the exercise of ordi-
nary intelligence and care. Thus, it is obviously unnecessary to
warn a laborer who is undermining a bank that the force of gravity
will, sooner or later, cause the surface crust to break off and fall; 1
but it would be otherwise if some unusual element, such as 'the ex-
treme friability of the soil, made the danger of caving greater than
was apparent, and this fact was known to the master. 2 And the
master may rightfully assume that the servant possesses such knowl-
edge, experience, and judgment as is ordinarily found in workmen
of his grade, and that he is reasonably skilled in what he under-
takes to do. Thus, where one who was engaged to fill defendant's
ice houses, being ordered to couple cars, in which he was unskilled,
went about the work without objection, and so awkwardly that he
was injured, it was held that he could not recover. 3 But if laborers
41. i Griffin v. Railway Co., 124 Ind. 326, 24 N. E. 888; Swanson v. City
of Lafayette, 134 Ind. 625, 33 N. E. 1033. See, also, Fones v. Phillips, 39
Ark. 17; Keats v. Machine Co., 13 C. C. A. 221, 65 Fed. 940; McCarthy v.
Mulgrew (Iowa) 77 N. W. 527; Gleason v. Smith (Mass.) 51 N. E. 460; Ford
v. Pulp Co. (Mass.) 52 N. E. 1005; Ryan v. Armour, 166 111. 568, 47 N. E. 60;
Hill v. Drug Co., 140 Mo. 433, 41 S. W. 909; Richmond Locomotive Works
v. Ford, 94 Va. 627, 27 S. E. 509.
2 Lynch v. Allyn, 160 Mass. 248, 35 N. E. 550. Also, Railsback v. Turnpike
o., 10 Ind. App. 622, 38 X. E. 221; Larich v. Moies, 18 R. I. 513, 28 Atl. 061.
But see St. Louis, A. & T. Ry. Co. v. Torrey, 58 Ark. 217, 24 S. W. 244, where
it was held that a bridge carpenter was not entitled to warning where there
was no evidence of inexperience or necessity for special training. General
rule, Deweese v. Mining Co., 128 Mo. 423, 31 S. W. 110. And see Carlson
V. Telephone Exch. Co., 63 Minn. 428, 65 X. W. 914.
Whittaker v. Coombs, 14 111. App. 498; Wilson v. Retinning Co., 103 Mass.
106 LIABILITY OF MASTER TO SERVANT. (Ch. 3
engaged in hazardous occupations are not informed of the accompany-
ing dangers by the master, and, remaining in ignorance, are conse-
quently injured, the employer is responsible; 4 and, in general, what-
ever the nature of the work, if the dangers are not obvious, and are
known to, or reasonably knowable by, the master, he must bring them
to the actual knowledge of the servant. 5 The distinction between
apparent and latent dangers and the corresponding duty of instruc-
tion is clearly stated by Sanborn, J., in Bolm Mfg. Co. v. Erick-
son: 6 "Obviously, the line between dangers apparent and latent
varies with the varying experience and capacity of the servants em-
ployed. Kisks and dangers that are apparent to the man of long
experience and of a high order of intelligence may be unknown to
the inexperienced and ignorant. Hence, if the youth, inexperience,
and incapacity of a minor who is employed in a hazardous occupa-
tion are such that a master of ordinary intelligence and prudence
would know that he is unaware of, or does not appreciate, the ordi-
nary risks of his employment, it is his duty to notify him of thenu
and instruct him how to avoid them. This notice and instruction
should be graduated to the age, intelligence, and experience of the
servant. They should be such as a master of ordinary prudence
315, 39 N. E. 1039; Arcade File Works v. Juteau, 15 Ind. App. 385, 40 N. E.
818, and 44 N. E. 326; but, if his ignorance or inexperience is brought to his
notice, he must warn him, Rummell v. Dihvorth, 111 Pa, St. 343, 2 Atl. 355;
Louisville, N. A. & C. Ry. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Spelman
v. Iron Co., 56 Barb. (N. Y.) 151; Smith v. Iron Co., 42 X. J. Law, 407;
Reynolds v. Railroad Co., 64 Vt. 66, 24 Atl. 134 ("single deadwoods" made to
couple those with double deadwoods); Bennett v. Railroad Co., 2 N. D. 112,
49 N. W. 408 (drawbars of unusual dimensions).
* Mather v. Rillston, 156 U. S. 391, 15 Sup. Ct. 464; International & G. N.
R. Co. v. Smith (Tex. Civ. App.) 30 S. W. 501 (vicious steer); Felice v. Rail-
road Co., 14 App. Div. 345, 43 N. Y. Supp. 922; Turner v. Lumber Co., 119
N. C. 387, 26 S. E. 23.
5 Helmke v. Stetler, 69 Hun, 107, 23 N. Y. Supp. 392 (vicious horse) ; Lowe
v. Railway Co., 89 Iowa, 420, 56 N. W. 519; Leigh v. Railway Co., 36 Neb.
131, 54 N. W. 134; O'Connor v. Adams, 120 Mass. 427; Coombs v. Cordage
Co,, 102 Mass. 572; Parkhurst v. Johnson, 50 Mich. 70, 15 X. W. 107; Ryan
v. Tarbox, 135 Mass. 207; Wolski v. Knapp, Stout & Co. Company, 90 Wis.
178, 63 X. W. 87 (skidding logs); Carlson v. Telephone Exch. Co., 63 Minn.
42S, Co X. W. 914.
5 C. C. A. 341, 55 Fed. 943.
41) WARNING AND INSTRUCTING SERVANTS. 107
and sagacity would give under like circumstances for the purpose
of enabling the minor not only to know the dangerous nature of
the work, but also to understand and appreciate its risks, and avoid
its dangers. They should be governed, after all, more by the ex-
perience and capacity of the servant than by his age, because the
intelligence and experience of men measure their knowledge and
appreciation of the dangers about them far more accurately than
their years."
The source of the servant's information as to the peril, is immate-
rial, provided he has actual notice. 7
The employer need not anticipate every risk which may happen r
but discharges his duty if he gives such general instructions as will
enable the servant to comprehend the danger. 8
Infants.
The above propositions apply with equal force where the servant
is a minor. Whether the servant be an adult or an infant, he is
equally entitled to notice of the dangers which he is likely to en-
counter. If the master furnishes this notice, he has- discharged his
duty. But in the case of a minor the question may arise whether
he was possessed of a mind sufficiently mature to appreciate the
danger which was pointed out, whether in fact he had the necessary
knowledge or notice, 9 and this is generally for the jury to deter-
mine. 10
7 Foley v. Railway Co., 48 Mich. 622, 12 X. W. 879; Hanson v. Hammell
(Iowa) 77 X. W. 839; Hayes v. Colchester Mills, 69 Vt. 1, 37 Atl. 269.
s Thompson v. Edward P. Allis Co., 89 Wis. 523, 62 X. W. 527.
Coombs v. Cordage Co., 102 Mass. 572; Andersen v. Berlin Mills Co., 32
C. C. A. 143, 88 Fed. 944; Ohielinsky v. Hoopes & Townsend Co., 1 Marv.
273, 40 Atl. 1127; Hettchen v. Chipman, 87 Md. 729, 41 Atl. 65; Verdelli v.
Commercial Co., 115 Cal. 517, 47 Pac. 364; Ryan v. Armour, 166 111. 568, 47
X. E. 60; Missouri, K. & T. Ry. of Texas v. Evans (Tex. Civ. App.) 41 S. W.
80; Latorre v. Stamping Co., 9 App. Div. 145, 41 X. Y. Supp. 99.
10 Hayden v. Manufacturing Co., 29 Conn. 548.
108 LIABILITY OF MASTER TO SERVANT. (Ch. 3
LIMITATIONS OF MASTER'S DUTY.
42. The master does not guaranty the safety of his serv-
ant, -who assumes:
(a) Ordinary risks incident to the employment.
(b) Known dangers, however great, but not
1. Unusual dangers, unless
(1) Patent or reasonably observable, or unless
(2) Notified of their existence by the master.
2. Nor defects or dangers not discoverable by him
in the exercise of ordinary care.
3. Nor a known defect which the master neglects
to repair within a reasonable time after promise .
4. Nor a danger incurred under express orders, un-
less the risk is known and appreciated.
(c) Bisk of negligence of fellow servants.
SAME ORDINARY RISKS.
43. The servant is held to assume the ordinary risks inci-
dent to his employment, in so far as they may fair-
ly be presumed to be within his knowledge, in the
exercise of ordinary care, 1 provided the master has
used ordinary diligence to eliminate them.
42-43. i Peoria, D. & E. Ry. Co. v. Hard wick, 53 111. App. 161; Hal-
liburton v. Railroad Co., 58 Mo. App. 27. And so a civil engineer employed
by railroad to build bridges assumes risk from absence of watchman at a
bridge on the railroad, Texas & P. Ry. Co. v. Smith, 14 C. C. A. 509, 67 Fed.
524; and even if the employment is very dangerous, Stewart v. Railroad Co.,
40 W. Va. 188, 20 S. E. 922; and where a brakeman employed for three years,
while riding on the front of an engine, was killed by collision with a wagon,
caused by failure of the railroad to maintain gates or signals, the risk was
held to be assumed, Bancroft v. Railroad Co. (N. H.) 30 Atl. 409. Also, Doyle
T. Railway Co., 42 Minn. 79, 43 N. W. 787; Jacksonville, T. & K. W. Ry. Co.
v. Galvin, 29 Fla. 636, 11 South. 231; Northern Pac. R. Oo. v. Everett, 152
U. S. 107, 14 Sup. Ct. 474; Johnson v. Snuff Co. (N. J. Err. & App.) 41 Atl,
936; Reese v. Railroad Co., 42 W. Va. 333, 26 S. E. 204. But see Dewey v.
Railway Co., 97 Mich. 329, 56 X. W. 756. Uneven new side track, O'Neal v.
Railway Co., 132 Ind. 110, 31 N. E. GUS); appliances generally, Texas & P.
43) ORDINARY RISKS.
This is true, not only of those dangers which are incident to the
employment at the time he enters the service, 2 but applies equally
to such hazards as may afterwards naturally and observably attach
to the employment. 3 And it is the duty of the employs' to observe
his surroundings and the incidental risks, and if, by reason of his
inattention, he is injured, he cannot recover. 4 The degree of ac-
tual danger involved is immaterial, so long as it is ordinary or in-
cident in that particular line of work. 5
On the other hand, it is the duty of the master to use ordinary
Ry. Co. v. Rogers, 6 C. C. A. 403, 57 Fed. 378; Craven v. Smith, 89 Wis. 119,.
61 N. W. 317; McGuirk v. Shattuek, 160 Mass. 45, 35 N. E. 110.
2 Haas v. Railroad Co., 40 Hun (N. Y.) 145; Gibson v. Railroad Co., 63 N.
Y. 449; Shaw v. Sheldon, 103 N. Y. 667, 9 N. E. 183; Huber v. Jackson &
Sharp Co., 1 Marv. 374, 41 Atl. 92; Chicago & E. I. R. Co. v. Maloney, 7T
in. App. 191; Broderick v. Railway Co. (Minn.) 77 N. W. 28; Nourie v.
Theobald (N. H.) 41 Atl. 182; Pennsylvania Co. v. Ebaugh (Ind. Sup.) 53 X.
E. 763; Worlds v. Railroad Co., 99 Ga. 283, 25 S. E. 646. Absence of side
platform on which to stand when trains pass on elevated road, Kennedy v.
Railroad Co., 33 Hun (N. Y.) 457; iron rails projecting from ends of cars to
be coupled by brakeman, Wabash, St. L. & P. Ry. Co. v. Deardorff, 14 111. App.
401; drawheads on different levels, Hulett v. Railroad Co., 67 Mo. 239; "fly-
ing switches," Lake Shore & M. S. Ry. Co. v. Knittal, 33 Ohio St. 468; throw-
ing mail bags into moving trains, Coolbroth v. Railroad Co., 77 Me. 165; roll-
ing a grindstone over an uneven floor, Walsh v. Railroad Co., 27 Minn. 367,
8 N. W. 145; riding on handcar and run over by delayed train, Railway
Co. v. Leech, 41 Ohio St 388.
s Houston & T. C. Ry. Co. v. Conrad, 62 Tex. 627; Dowell v. Railroad Co.,
62 Iowa, 629, 17 X. W. 901; Taylor v. Manufacturing Co., 140 Mass. 150,
N. E. 21; rolling a grindstone over an uneven floor, Walsh v. Railroad Co.,
27 Minn. 367, 8 N. W. 145; Baltimore & O. S. W. Ry. Co. v. Welsh, 17 Ind.
App. 505, 47 N. E. 182. In a cold climate railroad employes assume the-
risks incident to the accumulation of snow and ice on the tracks. Lawson
v. Truesdale, 60 Minn. 410, 62 N. W. 546.
* Chicago & N. W. R. Co. v. Kane, 50 111. App. 100. The opportunity of
knowledge is the equivalent of actual knowledge. McDugan v. Railroad Co.
(Com. PI.) 10 Misc. Rep. 336, 31 N. Y. Supp. 135.
5 Stewart v. Railroad Co., 40 W. Va. 188, 20 S. E. 922; moving a "dead'
engine," Anglin v. Railway Co., 9 C. C. A. 130, 60 Fed. 553; uncovered
gearing in plain sight, McGuerty v. Hale, 161 Mass. 51, 36 N. E. 682; commu-
tator of electric motor, Burnell v. Railroad Co., 87 Wis. 387, 58 N. W. 772.
See, also, Red River Line v. Cheatham, 9 C. C. A. 124, 60 Fed. 517, reversing:
56 Fed. 248.
110 LIABILITY OF MASTER TO SERVANT. (Ch. 3
care to eliminate or reduce tlie dangers of the employment, and if,
by reason of his negligence in this respect, a servant is injured, he
cannot avail himself of the defense of assumption of risk; the ques-
tions of negligence and contributory negligence are open to the
jury. 6
Low Bridges.
Thus in the case of bridges over railroad tracks, built so low that
a, brakeman upon a freight car cannot safely pass under them in
an erect position, it is now very generally held by our courts of
last resort that the risk of injury is not assumed by the trainman, 7
unless actual knowledge of the danger by the servant affirmatively
appears. 8
In general, however, it is immaterial how extraordinary is the ac-
tual danger involved in any given line of work, if it is properly in-
cident and germane to the employment. If the business is conducted
with the usual methods, in a manner fairly prudent in the circum-
stances, the hazards become ordinary so far as the servant's ex-
posure is concerned. Thus the work of removing damaged or crip-
pled cars to the repair shop is extremely dangerous, but the danger,
however great, is necessarily incident to the employment. 9 So, also,
the employment of coupling cars is one of constant peril, but car
couplers are held to assume the risks connected therewith. 10
Sowden v. Mining Co., 55 Cal. 443; Hawkins v. Johnson, 105 Ind. 29, 4
N. E. 172; Northern Pae. R. Oo. v. Mortenson, 11 C. C. A. 335, 63 Fed. 530;
Gaar, Scott & Oo. v. Wilson, 21 Ind. App. 91, 51 X. E. 502; Banks v. City
of Effingham, 63 111. App. 221.
T Baltimore & O. & C. R. Co. v. Rowan, 104 Ind. 88, 3 N. E. 627. In ILLI-
NOIS it Is held to be the absolute duty of the railroad company to build its
Abridges sufficiently high to avoid all danger of brakeman being injured by
striking them, Chicago & A. R. Co. v. Johnson, 116 111. 206, 4 N. E. 381; Atchi-
son, T. & S. P. R. Co. v. Rowan. 55 Kan. 270, 39 Pac. 1010; and in KEN-
TUCKY the construction of "low bridges" is held to be willful negligence, Cin-
cinnati, N. O. & T. P. Ry. Co. v. Sampson's Adm'r, 97 Ky. 65, 30 S. W. 12;
Fitzgerald v. Railroad Co., 37 App. Div. 127, 55 N. Y. Supp. 1124.
8 Brossrnan v. Railroad Co., 113 Pa. St. 490, 6 Atl. 226.
Stewart v. Railroad Co., 40 W. Va. 188, 20 S. E. 922, where it was pointed
10 Hathaway v. Railroad Co., 51 Mich. 253, 16 N. W. 634; Toledo, W. & W.
Ry. Co. v. Fredericks, 71 111. 294; Northern Cent. R. Co. v. Hussoii, 101 Pa.
St. 1; Hannigan v. Railway Co., 157 N. Y. 244, 51 N. E. 992,
44) KNOWN DANGERS ASSUMED. Ill
And if a servant voluntarily undertakes dangerous work, outside
the scope of his employment, and is injured by reason of his un-
familiarity with the work, or his lack of appreciation of the danger
involved, he assumes the risk, and cannot recover. 11
Distinction between Risk and Condition.
It should be observed that it is not sufficient that the condition
of the place, machine, utensil, or equipment is within the knowledge
of the servant. In order to establish his assumption of the risk, it
must appear that he knew, or in the exercise of ordinary prudence
should have known, that the condition involved possible injury or
risk. Thus, in the case of a brakenian coupling cars, equipped, one
with the old-style platform, and the other with the then new Miller
platform, the conditions were known to the brakeman, yet the court
said that the servant might not have understood that, upon the curve
where they were to be coupled, there was danger of the drawbars
passing one another; in other words, although he knew the condi-
tions, he might not have appreciated the risk. 12
SAME KNOWN DANGERS ASSUMED.
44. A servant assumes the risks arising from dangers con-
nected with the employment, of which he has knowl-
edge, or which are so obvious as not to escape the
observation of an ordinarily prudent person. 1
out that the test of liability is the negligence of the master, not the danger
of the employment; removing damaged or "crippled" cars, Chicago & N. W.
R. Co. v. Ward, 61 111. 130; Flannagan v. Railway Co., 50 Wis. 462, 7 N. W.
337; Yeaton v. Railroad Corp., 135 Mass. 418.
11 Richmond & D. R. Co. v. Finley, 12 C. C. A. 595. 63 Fed. 228; Central
Railroad & Banking Oo. v. Chapman, 96 Ga. 769, 22 S. E. 273.
12 Russell v. Railway Co., 32 Minn. 230, 20 N. W. 147; Mundle v. Manu-
facturing Co., 86 Me. 400, 30 Atl. 16 (splinter from floor penetrating foot).
44. i Moore v. Wire Mill Co., 55 Mo. App. 491; Claybaugh v. Railway
Co., 56 Mo. App. 630; Mclntosh v. Railway Co., 58 Mo. App. 281; Hoyle v.
Laundry Co., 95 Ga. 34, 21 S. E. 1001; Connelly v. Woolen Co., 163 Mass. 156,
39 N. E. 787. Light not used on switch, Illinois Cent R. Co. v. Swisher, 53
111. App. 411; trees bordering an unfinished railroad, risk of striking, Man-
ning v. Railway Co., 105 Mich. 260, 63 N. W. 312; insecure prop, Lucey v. Oil
Co., 129 Mo. 32, 31 S. W. 340; and even where the servant is ordered to
engage in the dangerous work, or lose his position, Dougherty v. Steel Co.,
112 LIABILITY OF MASTER TO SERVANT. (Ch. 3
This is equally true, although it appears that the work in ques-
tion might just as well have been performed in a less dangerous
manner. Where plaintiff had been injured by the caving-in of a
bank, after being fully advised of the attendant danger, the court
said: "It is immaterial that there was a customary, better, and
safer way in which the work might have been done, which, had it
been done in that way, would have relieved the plaintiff from peril
and avoided the injury." *
And if the risk, although not necessarily incident to the business,
is manifest, it is none the less assumed; as if an employe", volun-
tarily and unnecessarily, uses an obviously defective ladder to ad-
just electric lights, and is injured thereby, he cannot recover. 3
But, if the danger or the involved risk is not fairly within the
reasonable knowledge or observation of the servant, it is not as-
sumed. This is well illustrated in the case of Gates v. State, 4 where
a laborer on a scow was transferred by the foreman to work in re-
pairing a defective bridge, which fell and injured him. The court
there says: "While, in work of an inherently dangerous nature, the
workman is ordinarily held to assume that certain risk which must
attend upon its execution, that rule involves, and must depend for
its application upon, the knowledge or means of knowledge, upon
88 Wis. 343, 60 N. W. 274. But see Wells & French Co. v. Gortorski, 50 111.
App. 445; Leary v. Railroad Co., 139 Mass. 580, 2 N. E. 115. Also, where
the danger arises from the negligence of the employer, Bonnet v. Railway
Co. (Tex. Civ. App.) 31 S. W. 525; Mundle v. Manufacturing Co., 8G Me. 400,
30 Atl. 16. See, also. Goodes v. Railroad Co., 162 Mass. 287, 38 X. E. 500;
Railsback v. Turnpike Co., 10 Ind. App. 622, 38 N. E. 221; Marean v. Rail-
road Co., 167 Pa. St 220, 31 Atl. 562; Kennedy v. Railway Co., 145 X. Y.
288, 39 X. E. 956 (in the latter case the servant fell through an opening in
an elevated railroad); Muncie Pulp Co. v. Jones, 11 Ind. App. 110, 38 X. E.
547; Michaelson v. Brick Co., 94 Iowa, 725, 62 N. W. 15; Colorado Coal &
Iron Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251.
2 Lyon, J., in Xaylor v. Railway Co., 53 Wis. 661, 11 X. W. 24.
Jenney Electric Light & Power Co. v. Murphy, 115 Ind. 566, 18 X. E. 30
(but cf. Burns v. Steamship Co., 84 Ga. 709, 11 S. E. 493); Steinhaiiser v.
Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102; O'Xeal v. Railway Co., 132
Ind. 110, 31 X. E. 669; Matchett v. Railway Co., 132 Ind. 334, 31 X. E. 792;
and in respect to a defective telegraph pole, Foley v. Light Co., 54 X. J. Law,
411, 24 Atl. 487.
li:s X. Y. 2-21, 28 X. E. 373.
45) UNUSUAL DANGERS NOT ASSUMED. 113
the workman's part, of the attendant peril to him. Such knowledge
may be presumed to be possessed by reason of previous employment
and experience, or to be suggested by ordinary observation and ap-
pearances. If the workman is without experience in the particu-
lar work required of him, and if, as here, danger for him exists from
causes not apparent, but which are known to his employers, I think
it unquestionable in principle that an obligation should be deemed
to rest upon them to communicate such information as would apprise
the workman of the nature of the work, and of the possible risks
in its execution."
45. UNUSUAL DANGERS NOT ASSUMED The servant
does not assume the risk arising from unusual dan-
gers, such as he could not reasonably anticipate as
incidental to the employment, unless
(a) The peril is so patent as to be discoverable in the ex-
ercise of that intelligence -which the servant may be
reasonably presumed to possess; or unless
(b) He has actual knowledge of the peril from some
source.
When the servant has no actual or presumptive knowledge of the
equipment or methods of his master's business, he may rightfully
assume that he will be exposed to no dangers or risks other than
those which are naturally and ordinarily incident to service of that
kind, and if in the discharge of his duty he is, without warning,
subjected to such a danger, and is injured, he may recover. Thus,
where an employe" in an iron foundry having been ordered, contrary to
the accustomed service, to assist others in conveying a ladle of
melted iron across an alley way coated with ice, one of the assistants
slipped, and the liquid metal, coming in contact with the ice, was
thrown on the employe", burning him so that he died. 1 And where
45. i Smith v. Car Works, 60 Mich. 501, 27 X. W. 662. At least there
is no presumption that he assumes the unusual and unknown risk, and the
question of the master's negligence is open for the jury. Tissue v. Railroad
Co., 112 Pa. St. 91, 3 All. 667, 33 Alb. Law J. 284. See, also, Baxter v. Rob-
erts, 44 Cal. 187; Fairbank v. Haentzsche, 73 111. 236; Atlas Engine Works
v. Randall, 100 Ind. 293; Sullivan v. Manufacturing Co., 113 Mass. 396.
BAR.XEG. 8
114 LIABILITY OF MASTER TO SERVANT. (Ch. 3
a watchman was bitten by a savage dog, which the employer gen-
erally kept fastened, but which, on this occasion, had been let out
without warning to the servant, the court said: "He [the watch-
man] assumed the risks consequent upon the keeping of a ferocious
dog which was kept fastened, except when he was otherwise no-
tified." 2 But in the large majority of cases where the injury com-
plained of is the result of an unusual risk, or one not contemplated
at the inception of the service, the main question is the knowledge
or ignorance of the servant of the encountered danger, whether he
knew, or in the exercise of reasonable care and intelligence should
have known, of its existence. In the admirably considered case of
Foley v. Jersey City Electric Light Co., 3 the court says: "Obvious
dangers which he [the servant] enters upon voluntarily are impliedly
assumed by him, if he continues in the service. * * * If the serv-
ant knows of the defect, and it is of such a nature that a prudent
person will not abandon the service on account of it, then no neg-
ligence can be charged to the master for permitting the defect to
continue. * * * The servant and the master had equal means
of forming a correct judgment. Therefore, whatever want of pru-
dence in taking the risk is chargeable to the one must be imputed
to the other. * * * The cases rigidly hold the doctrine that
the servant takes upon himself such definite and determinate risks
as are obvious, and no action will lie against the master for in-
juries to the servant in such cases. There is no circumstance pres-
ent in this case to take the case out of the general rule."
It is the duty of the servant to exercise care to avoid injuries to
himself. He is under as great obligation to provide for his own
safety from such dangers as are known to him, or discernible by ordi-
nary care on his part, as the master is to provide for him. 4
In a voluminous class of cases falling under this head, some con-
flict and confusion is found in the decisions. The case of Dorsey v.
Phillips & Colby Const. Co. 5 will serve as an illustration. In this
case the conductor of a freight train was injured while climbing up
2 Muller v. McKesson, 73 X. Y. 195. See, also, Fitzgerald v. Paper Co., 155
Mass. 155, 29 X. E. 464; Malioney v. Dore, 155 Mass. 513, 30 X. E. 366.
s 54 X. J. Law, 411, 24 Atl. 487.
< Wormell v. Railroad Co., 79 Me. 397, 10 Atl. 49.
B 42 Wis. 583.
45) UNUSUAL DANGERS NOT ASSUMED. 115
the ladder of a car, by being struck by a cattle chute placed near
the track. During his employment of several months he had passed
the chute almost daily, and knew of its existence and exact loca-
tion; yet the court said that, while he may have known generally
of the proximity of the chute in question to the track, yet neces-
sarily it did not follow that he knew its precise distance therefrom,
and consequently not its precise danger. So, also, in a similar case,
where a switchman in climbing the ladder of a freight car was struck
by a signal post, the court says: "We are not prepared to say,
however, that this is conclusive evidence that he was negligent, or
that he knew, or should have known, if he used ordinary prudence,
the danger of such an accident. * * * While he must have
known of the existence and location of the post, he may not have
known, from mere observation, or unless his attention had in some
way been specially called to it, that it was near enough to the ears
to be dangerous, but might be misled, unless he had made actual
measurement or calculation." 6 In these and other similar cases, 7
the injured person was perfect!}- familiar with the condition which
embraced the danger. It did not require unusual intelligence or
special training to foresee the menace which existed in the proximity
of the structures to the track. It is the servant's duty to use rea-
sonable care to inform himself by an examination of his surround-
ings, 8 and, if the defect or danger is obvious, knowledge will be pre-
sumed. 9 That a switchman or conductor is not informed of the ex-
act number of inches that will intervene between a signal post and
a passing car cannot raise any possible inference that he does not
know and appreciate the danger. But by far the greater weight
of authority in this line of cases holds strongly that, when the con-
dition, character, and position of structures incident to the serv-
ice are known to the servant, he must be presumed to know the
6 Johnson v. Railway Co., 43 Minn. 53, 44 N. W. 884. Compare Bengtson
v. Railway Co., 47 Minn. 486, 50 N. W. 531.
' Sweet v. Railroad Co., 87 Mich. 559, 49 N. W. 559; Goodes v. Railroad
Co., 102 Mass. 287, 38 X. E. 500.
sWorruell v. Railroad Co., 79 Me. 397, 10 Atl. 49; Batterson v. Railway
Co., 53 Mich. 125, 18 N. W. 584.
Lovejoy v. Railroad Co., 125 Mass. 79; and see cases cited in section 45,
note 10, inl'ia.
116 LIABILITY OF MASTER TO SERVANT. (Ch. 3
danger and to assume the attendant risk. 10 Thus, in Tuttle v. De-
troit, Gr. H. & M. Ry. Co., 11 the alleged defect and negligence con-
sisted in the sharpness of the curves on a side track. The court
here says: 'The perils in the present case, arising from the sharp-
ness of the curve, were seen and known. Everything was open and
visible, and the deceased had only to use his senses and his faculties
to avoid the dangers to which he was exposed."
From what has already been said, it follows, as a general proposi-
tion of law, that if an employ^ continues in the service, after full
knowledge and appreciation of a defect and accompanying danger,
he cannot recover for injuries sustained thereby. Exception has
been taken to this rule, as being unjust, and not based on sound
legal principle, and the following has been offered as the true rule
of the effect of notice in such cases: "A servant cannot recover
against his master, for an injury suffered through exposure to dan-
ger from defects of which he had notice, if, under all the circum-
stances, a servant of ordinary prudence, acting with such prudence,
would not have continued the same work under the same risk." 12
The proposition is doubtless sound, but the corollary suggests itself:
If, on the contrary, in the circumstances, a servant of ordinary
prudence, acting with such prudence, would have continued the same
work, under the same risk, the defect in question could not be of
such a nature as to place the imputation of negligence upon the
master, if he permitted it to continue. 13
loLovejoy v. Railroad Co., 125 Mass. 79; Gibson v. Railway Co., 63 N. Y.
449; De Forest v. Jewett, 88 N. Y. 264; Batterson v. Railway Oo., 53 Mich.
127, 18 N. W. 584; Michigan Cent. R. Co. v. Austin, 40 Mich. 247; Illick
v. Railroad Co., 67 Mich. 632, 35 X. W. 708; Alabama G. S. R. Co. v. Davis
(Ala.) 24 South. 862; Chielinsky v. Hoopes & Townsend Co., 1 Marv. 273, 40
Atl. 1127; Westville Coal Co. v. Milka, 75 111. App. 638; Whelton v. Rail-
way Co. (Mass.) 52 N. E. 1072; Lang v. Transportation Line (Mich.) 77 N.
W. 633; Nashville, O. & St. L. R. Co. v. Gann (Tenn. Sup.) 47 S. W. 493; Du-
gal v. City of Chippewa Falls (Wis.) 77 N. W. 878; Henion v. Railroad Co.,
25 C. C. A. 223, 79 Fed. 903; Louisville & N. R. Co. v. Kemper, 147 Ind. 561,
47 N. E. 214; Chicago, B. & Q. R. Co. v. McGinnis, 49 Neb. 649, 68 N. W. 1057;
Nuss v. Rafsnyder, 178 Pa. St. 397, 35 Atl. 958.
11 122 U. S. 189, 7 Sup. Ct. 1166. See, also, Randall v. Railroad Co., 109
U. S. 478, 3 Sup. Ct. 322; Stephenson v. Duncan, 73 Wis. 404, 41 N. W. 337.
12 Shear. & R. Neg. (4th Ed.) 211 et seq.
i Foley v. Light Co., 54 N. J. Law, 411, 24 Atl. 487.
46) UNKNOWN DEFECTS OR DANGERS. 117
- Discovered Dangers.
When the knowledge of the defect or danger is so recent as not,
in the circumstances, to afford reasonable opportunity for an esti-
mate of the attendant risk, as in the case of a newly-hired servant
or an unusual danger injected into the service after its inception,
the proposition becomes entirely different, and an assumption of the
peril cannot be imputed to the employe". 14
46. UNKNOWN DEFECTS OR DANGERS The servant
does not assume the risk of injury from defects or
dangers not known, and not discoverable by him in
the exercise of ordinary care.
Thus, where the employe" of a shipbuilder was directed to do certain
work beneath a scaffolding which was improperly constructed, 1 and
where a brakeman was required to couple cars furnished with double
deadwoods, 2 no instructions as to the attendant, unknown danger
having been given in either case, the risk was not assumed. Thus,
also, in the case of Pantzar v. Tilly Foster I. Min. Co., 3 the court said:
"The evidence tends to show that the plaintiff was ignorant of the
dangerous condition of the rock, and that his duties did not call him
to any place from which it could be observed. He therefore had a
right to rely upon the performance of the duty owing by the master,
i* Brakeman on his first trip struck by a signal post, Scanlon v. Railroad
Co., 147 Mass. 484, 18 N. E. 209; reasonable opportunity not afforded employe.
to become familiar with location of an awning on station house, Nugent v.
Railroad Co., 80 Me. 62. 12 Atl. 797.
46. i Connolly v. Poillon, 41 Barb. (N. Y.) 366, affirmed in 41 N. T. 619.
2 Gibson v. Railroad Co., 46 Mo. 163. See, also, Philadelphia & R. R. Co.
v. Huber, 128 Pa. St. 63, 18 Atl. 334; Sherman v. Railway Co., 34 Minn. 259,
25 N. W. 593; Barbo v. Bassett, 35 Minn. 485, 29 N. W. 198; Buzzell v.
Manufacturing Co., 48 Me. 113; Reber v. Tower, 11 Mo. App. 199; Baker
v. Railroad Co., 95 Pa. St. 211; Ryan v. Fowler, 24 N. Y. 410; Arkerson v.
Dennison, 117 Mass. 407; Warden v. Railroad Co., 137 Mass. 204; Hough v.
Railway Co., 100 U. S. 213; Toledo, W. & W. R. Co. v. Ingraham, 77 111. 309;
Alabama G. S. R. Co. v. Davis (Ala.) 24 South. 862; Xof singer v. Goldman
(Cal.) 55 Pac. 425; Alton Paving, Building & Fire-Brick Co. v. Hudson, 176
111. 270, 52 X. E. 256; Norfolk & W. R. Co. v. Ampey, 93 Va. 108, 25 S. E.
226.
3 99 N. Y. 368, 2 N. E. 24.
118 LIABILITY OF MASTER TO SERVANT. (Ch. 3
of adopting proper and suitable measures of precaution to guard him
against the consequence of any danger arising from the obviously
unsafe condition of the rock, and is not justly censurable for an omis-
sion to discover the impending danger himself in time to avoid it."
But it does not follow that, in the event of injury to the servant
from a danger of this class, the master is necessarily liable. If the
master has exercised ordinary care to guard against the defect or
danger, and is unaware of its existence, he is exonerated. The
negligence of the master must combine with the nonassumption of
risk on the part of the servant in order to justify a recovery. 4
Nor does the servant assume the risk of injury when, taking all
the circumstances into consideration and the physical defect or condi-
tion being known, he does not, in the exercise of ordinary care and
prudence, appreciate the attendant danger. 5 In a suit by a carpenter
for injuries caused by the use of a defective "jigger" in loading car
wheels, the court used the following language: "It is said the plain-
tiff might also see the defects. True, but he did not know the effect
of such deficiencies, and was, moreover, directed by his superior to
get and use the instrument, and whether, under the circumstances,
he should be charged with knowledge, and with negligence by reason
of it, was also for the jury."
The foregoing rule as to the appreciation of an incurred risk is*
perhaps, somewhat emphasized in the case of minors, although, in
principle, no distinction should be made on account of the age of the
servant. 7 As a matter of fact, a person of immature age and judg-
* Painton v. Railroad Co., 83 N. Y. 7.
5 The test as to assumption of risk by an employe" who uses a dangerous
machine is whether an ordinarily prudent person of his age and experience,
under like circumstances, would have appreciated the danger. Craven v.
Smith, 89 Wis. 119, 61 N. W. 317. See, also, Louisville & X. R. Co. v. Vestal
(Ky.) 49 S. W. 204; Whitney & Starrette Co. v. O'Rourke, 172 111. 177. 50 N.
E. 242; Gusman v. Railroad Co., 49 La. Ann. 1264, 22 South. 742; Galveston,
H. & S. A. Ry. Co. v. McCrary (Tex. Civ. App.) 43 S. W. 275.
6 Kain v. Smith, 89 X. Y. 375. See, also, Smith v. Car-Works, 60 Mich. 501 r
27 X. W. 662; McGowan v. Smelting Co., 3 McCrary, 393, 9 Fed. 861; Dale
v. Railway Co., 63 Mo. 455.
7 Pittsburgh, C. & St. L. Ry. Co. v. Adams, 105 Ind. 151, 5 X. E. 187;
Gartland v. Railway Co., 67 111. 498; De Graff v. Railroad Co., 76 X. Y. 125;
Kaufhold v. Arnold, 163 Pa. St. 269, 29 Atl. 883; Alabama Mineral R. Co. v.
46) UNKNOWN DEFECTS OB DANGERS. 119
ment is less likely to appreciate the exact danger of a given defect
than one of riper years and intelligence. For this reason, the age,
intelligence, and experience of the servant are material circumstances
for consideration in determining the question of realization of the
peril, 8 but, if the risk is actually appreciated, the rule is not relaxed
on account of the age of the servant. 9
For the reasons above stated, it is the duty of the master, in set-
ting minors to work at dangerous machinery or in exposed positions,
to warn them in plain, explicit language of the attendant danger.
Instructions by the master which might easily satisfy the require-
ments of ordinary care in dealing with an adult might fall far short
of the standard of duty when given to a child of tender years and
slight experience. 10 And, even if a full explanation of the danger is
given the minor, if he is not sufficiently mature to appreciate the
risk it is not assumed, and recovery may be had for injuries sus-
tained thereby. 11 But, where the danger is obvious to even a child,
it is not the duty of the master to point it out. Thus, in the case
of a boy 14 years old, who was injured in an elevator by allowing his
foot to project beyond the door, it was held that the danger was one
which a child of his age should have observed and appreciated with-
out warning. 12 The test in these cases is similar to that stated un-
der contributory negligence, if the danger is one which, by fair
presumption, would be observed and realized by a reasonably prudent
child of the same age in similar circumstances, the master is not
bound to give special instruction or warning. 13
Marcus. 115 Ala. 389, 22 South. 135; Dunn v. McXamee, 59 X. J. Law, 498,
37 Atl. Gl.
a Luebke v. Machine Works, 88 Wis. 442, GO N. W. 711.
Reardon v. Card Co., 51 X. Y. Super. Ct. 134; Curran v. Manufacturing
Co., ISO Mass. 374; Anderson v. Morrison. 22 Minn. 274; Schliermann v.
Typewriter Co., 11 Misc. Rep. 546, 32 X. Y. Supp. 748.
10 Coombs v. Cordage Co., 102 Mass. 572; Buckley v. Manufacturing Co., 41
Hun (X. Y.) 450; Louisville, X. A. & C. Ry. Co. v. Frawley, 110 Ind. 18, 9
X. E. 594.
11 Hamilton v. Railroad Co., 54 Tex. 556; Coombs v. Cordage Co., 102
Mass. 572; Turner v. Railroad Co., 40 W. Va. 675. 22 S. E. S3.
12 Costello v. Judson, 21 Hun (X. Y.) 396; and where a child of 10 years
had her hand crushed between hot rollers, Phillips v. Michaels, 11 Ind. App.
672, 39 X. E. 669.
is Atlas Engine Works v. Randall, 100 Ind. 293; Hayes v. Colchester Mills,
120 LIABILITY OF MASTER TO SERVANT. (Ch. 3
47. PROMISE TO REPAIR If a servant, noting a defect
in the appliance or place, complains to the master,
who promises that it shall be remedied, he may, in
reliance on the promise, continue in the service for
a reasonable time thereafter without thereby as-
suming the risk, provided the danger is not of so
imminent a character that a person of ordinary
prudence would refuse to continue in the service.
In Hough v. Texas & P. Ry. Co. 1 defendant's engineer complained
of a defective cowcatcher on his engine, which, it was promised,
would be remedied. The repair was not made, and the engineer was
injured in consequence. The court held that the continued use of
the engine, in the well-grounded belief that it would be put in proper
condition within a reasonable time, did not necessarily, as a matter
of law, make the engineer guilty of contributory negligence; that it
was for the jury to determine whether, relying upon such promise,
and using the machinery after he knew of its defective or insufficient
condition, he was in the use of due care.
But it must appear that the master, and not some unauthorized
person, made the promise to repair upon which the servant relied, 2
and there must be no equivocation or uncertainty about the proni-
69 Vt. 1, 37 Atl. 269; Vorbrich v. Manufacturing Co., 96 Wis. 277, 71 N. W.
434; Chicago, B. & Q. R. Co. v. Eggrnan, 59 111. App. 680.
47. 1 100 U. S. 213. The principle applies equally to both appliances and
places, Greene v. Railway Co., 31 Minn. 248, 17 N. W. 378; and to incompe-
tent fellow servants, Laning v. Railroad Co., 49 N. Y. 521. See, also, Wuotilla
v. Lumber Co., 37 Minn. 153, 33 N. W. 551; Lyberg v. Railroad Co., 39 Minn.
15, 38 N. W. 632; Missouri Furnace Co. v. Abend, 107 111. 44; Conroy v. Iron
Works, 62 Mo. 35; Union Mfg. Co. v. Morrissey, 40 Ohio St. 148; Parody v.
Railway Co., 15 Fed. 205; Linch v. Manufacturing Co., 143 Mass. 200. 9 N. E.
728; Hatt v. Nay, 144 Mass. 186, 10 N. E. 807; Buzzell v. Manufacturing Co.,
48 Me. 113; Donley v. Dougherty, 174 111. 582, 51 N. E. 714; McFarlan Car-
riage Co. v. Potter (Ind. Sup.) 52 N. E. 209; Miller v. Mining Co. (Utah) 55 Pac.
58; Nelson v. Shaw (Wis.) 78 N. W. 417; Texas & N. O. R. Co. v. Bingle, 91
Tex. 287 ; 42 S. W. 971; Standard Oil Co. v. Helmick, 148 Ind. 457, 47 N. E. 14.
2 Ehmcke v. Porter, 45 Minn. 338, 47 N. W. 1066; Chesapeake, O. & S. W.
R. Co. v. McDowell (Ky.) 24 S. W. 607. Promise of superintendent in charge
sufficient. Patterson v. Railroad Co., 76 Pa. St. 389.
47) PROMISE TO REPAIR. 121
ise. 3 Where complaint is made, but there is a failure to repair the
defect within a reasonable time, there can be no recovery. 4 But
where a particular danger is foreseen by the servant, and the work
is undertaken in reliance upon an express promise to provide against
it, the same general principle holds true; as where a servant of a
railroad company, sent out to shovel snowdrifts, was frozen by rea-
son of the master's failure to provide a warming car, according to
promise. 5
If, however, the danger which threatens is of such an immediately
impending and menacing character that a continuance in the service
would not be consistent with ordinary prudence, a promise to repair
will not relieve the servant from the assumption of the risk, if he
proceeds with the work. 6
It is apprehended that this general rule must be restricted to some
extent, where the use of simple tools and utensils, and not compli-
cated and dangerous machinery, is involved. In Marsh v. Checkering 7
the court said: "In cases, however, where persons are employed in
the performance of ordinary labor, in which no machinery is used,
-and no materials furnished, the use of which requires the exercise
a Wilson v. Railroad Co., 37 Minn 326, 33 N. W. 908; Jones v. File Co. (R.
I.) 42 Atl. 509; Brewer v. Railway Co.. 97 Tenn. 615, 37 S. W. 549. A mere
acknowledgment of defect by the master, with an evasive remark, is not a
promise to remedy. Breig v. Railway Co., 98 Mich. 222, 57 N. W. 118. But
see Indianapolis Union Ry. Co. v. Ott, 11 Ind. App. 564. 38 N. E. 842; Roth-
enberger v. Milling Co., 57 Minn. 461, 59 N. W. 531. And even a promise to
repair is immaterial if the continuance at the work is not made in reliance
upon the promise. Showalter v. Fairbanks. Morse & Co., 88 Wis. 376, 60
N. W. 257. Mere objection or protest on the part of the servant, unless
coupled with a promise by the master, is insufficient. Sweeney v. Envelope
Co., 101 N. Y. 520, 5 N. E. 358; Cole v. Railway Co., 71 Wis. 114, 37 X. W.
S4;' Webber v. Piper. 38 Hun (N. Y.) 353; Ft. Wayne, J. & S. R. Co. v. Gilder-
fileeve, 33 Mich. 133.
* Morbach v. Mining Co., 53 Kan. 731, 37 Pac. 122; Trotter v. Furniture
Co. (Tenn. Sup.) 47 S. W. 425.
s Hyatt v. Railroad Co., 19 Mo. App. 287; Huber v. Jackson & Sharp Co.,
1 Marv. 374, 41 Atl. 92.
e Indianapolis Union Ry. Co. v. Ott (Ind. App.) 35 N. E. 517, 38 N. E. 842;
Russell v. Tillotson, 140 Mass. 201, 4 N. E. 231; Greene v. Railway Co.. 31
Minn. 248, 17 N. W. 378; Atchison, T. & S. F. R. Co. v. Midgett, 1 Kan. App.
138, 40 Pac. 995; Erdman v. Steel Co., 95 Wis. 6, 09 N. W. 993.
7 101 X. Y. 399, 5 N. E. 57.
122 LIABILITY OF MASTER TO SERVANT. (Ch. 3
of great skill and care, it can scarcely be claimed that a defective
instrument or tool furnished by the master, of which the employe"
has full knowledge and comprehension, can be regarded as making
out a case of liability, within the rule laid down. * * * He fully
comprehended that the spade, or the hoe, or the ladder, or the in-
strument which he employed was not perfect. If he was thereby
injured, it was by reason of his own fault and negligence. The fact
that he notified the master of the defect, and asked for another in-
strument, and the master promised to furnish the same, in such a
case does not render the master responsible if an accident occurs."
48. COMPLIANCE WITH EXPRESS ORDERS When a
servant, in obedience to instruction, undertakes to
perform a service outside the scope of his employ-
ment, he assumes only such increased risks as are
patent and obvious, or discoverable in the exercise
of such skill and intelligence as are presumably
possessed by -workmen of the grade of his original
employment.
Courts are not entirely harmonious as to the character and ex-
tent of risks which should be deemed assumed in the conditions
named, but it is believed that the foregoing proposition fairly car-
ries the weight of authority. 1
The principle may be more cautiously expressed as follows: If a
common laborer, who, at the request of his master, attempts to per-
form a hazardous service temporarily, outside his employment, with-
out objection, is injured while performing such duty, his apparent
consent will not alone defeat his right of recovery, although the dan-
ger is apparent to a person possessed of skill, but not to a common
laborer. 2 It follows, as a corollary of the stated rule, that when
the temporary service required of the employe" is entirely different
in kind, and the attendant perils of such a nature that the servant
48. i Dougherty v. Steel Co., 88 Wis. 343, 60 N. W. 274; Rooney v.
Carson, 161 Pa. St. 26, 28 Atl. 996; Gill v. Homrighausen, 79 Wis. 634, 48
X. W..862. See, also, Davidson v. Cornell, 132 N. Y. 228, 30 X. E. 573. But
see Fitzgerald v. Paper Co., 155 Mass. 155, 29 N. E. 464.
a Paule v. Mining Co., 80 Wis. 350, 50 N. W. 189.
48) COMPLIANCE WITH EXPRESS ORDERS. 123
could not acquire a knowledge of them in the work for which he
was hired, he has not assumed the increased risk. 3
It should be observed that the cases cited in support of this rule
are based on the ignorance, actual or presumed, of the dangers to
which the change in employment subjected the servant; but there
would seem to be no tenable theory by which the master could be
held liable for injuries sustained by the servant in the performance
of a temporary and unusual service, merely by reason of the increased
risks and dangers attendant thereon, and which were fully under-
stood and appreciated by the servant. 4 In the case of Cole v. Chi-
cago & X. W. Ry. Co., 5 counsel for the plaintiff argued that the
mere act of the master in directing the performance of such tem-
porary and dangerous work is such negligence as to sustain the
action of the servant for injuries suffered in its performance, while
using ordinary care. But the court says: "We are very clear that
the broad rule contended for by the learned counsel for the respond-
ent is not sustained by the authorities nor by the general rules of
law which define the relations of the employer and employed Some
of the cases cited by the learned counsel for the respondent may have
some general statements in the opinions which give some countenance
to the rule as stated by counsel; but, when the facts of each case
are considered, it will, we think, be found that no such broad rule
was ever intended to be sanctioned by any of the courts."
In Leary v. Boston & A. R Co. 6 the general rule is laid down
s Paule v. Mining Co.. 80 Wis. 350, 50 N. W. 189; Mann v. Print Works, 11
R. I. 152.
* McGinnis v. Bridge Co., 49 Mich. 466, 13 N. W. 819; Wormell v. Railroad
Co., 79 Me. 397, 10 Atl. 49; Rummell v. Dibvorth, 111 Pa. St. 343, 2 Atl. 355;
Leary v. Railway Co., 139 Mass. 587, 2 X. E. 115; Union Pac. Ry. Co. v.
Fort, 17 Wall. 554; Cahill v. Hilton, 106 N. Y. 512, 13 X. E. 339; Lalor v.
Railway Co., 52 111. 401; Ohio & M. R. Co. v. Hammersley, 28 Ind. 371; Pitts-
burgh, C. & St. L. Ry. Co. v. Adams, 105 Ind. 151, 5 N. E. 187; Mann v.
Print Works. 11 R. I. 152; Chicago & X. W. Ry. Co. v. Bayfield. 37 Mich.
205; Cook v. Railway Co., 34 Minn. 45, 24 X. W. 311; O'Connor v. Adams, 120
Mass. 427; Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 449. And, even if the
unusual danger is incurred in obedience to the command of a superior, but in
violation of an established rule, the servant assumes the risk. Richmond &
D. R. Co. v. Finley, 12 C. C. A. 595, 63 Fed. 228.
s 71 Wis. 114. 37 X. W. 84.
e 139 Mass. 580, 2 X. E. 115; Hogau v. Railroad Co., 53 Fed. 519. And see
124 LIABILITY OF MASTER TO SERVANT. (Ch. 3
with great breadth: If a servant of full age and ordinary intelli-
gence, upon being required by his master to perform other duties
more dangerous and complicated than those embraced in his orig-
inal hiring, undertakes such duties knowing their dangerous char-
acter, although unwillingly and from fear of losing his employment,
and he is injured, he cannot maintain an action for the injury.
SAME SERVANT AND FELLOW SERVANT.
49. A servant, on entering employment, impliedly agrees
with his master to assume all ordinary risks inci-
dent to the service, including that of negligence on
the part of a fellow servant, unless
(a) The master was negligent in employing the fellow
servant; or unless
(b) The master's personal negligence caused or co-oper-
ated to cause the injury complained of.
The earliest reported case in any degree embodying the present
doctrine of fellow servant is said to be that of Priestley v. Fowler l
{1837), but the first clear enunciation of the rule occurred in 1841
in a South Carolina case (Murray v. South Carolina K. Co.), 2 and
was thoroughly established a year later by the masterly opinion of
Judge Shaw in Farwell v. Boston & W. R. Co. 3 The federal courts
early recognized the general doctrine, and when construing the com-
mon law of a particular state on this point, they regard the ques-
tion as one of construction of general contract of service and not as
cases collected In 14 Am. & Eng. Enc. Law, p. 859, note 1. But compare
Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366; O'Maley v. Gaslight Co., 158
Mass. 135, 32 N. E. 1119. In Leary v. Railroad Co., supra, the court further
adds: "Morally to coerce a servant to an employment, the risks of which he
does not wish to encounter, by threatening otherwise to deprive him of an
employment he can readily and safely perform, may sometimes be harsh; but,
when one has assumed an employment, if an additional and more dangerous
duty is added to his original labor, he may accept or refuse it."
49. ! Priestley v. Fowler, 3 Mees. & W. 1. In Hutchinson v. Railway
Co. (1850) 5 Exch. 343, the English courts unreservedly adopted the rule.
2 1 McMul. 385.
84 Mete. (Mass.) 49.
49) SERVANT AND FELLOW SERVANT. 125
a rule of property. Under such circumstances, therefore, local de-
cisions do not control. 4
The reason for the doctrine of fellow servant is founded on the
same basis as the assumption of any other risk incident to the ac-
cepted employment. The men employed in building a house or dig-
ging a trench are as truly a part of the appliances of the work as
a scaffold or a spade. If the master has selected them in sufficient
number, with due care, he has performed his immediate duty, and
the outcropping of negligence in an individual servant is neither
more nor less than a human defect, which could not be foreseen
or guarded against, and against which the master did not undertake
to protect the employ 6. "The general rule, resulting from considera-
tions as well of justice as of policy, is that he who engages in the
employment of another for the performance of specified duties and
services, for compensation, takes upon himself the natural and ordi-
nary risks and perils incident to the performance of such services^
and, in legal presumption, the compensation is adjusted accordingly.
And we are not aware of any principle which should except the
perils arising from the carelessness and negligence of those who are
in the same employment. These are perils which the servant is likely
to know, and against which he can as effectually guard as the mas-
ter. They are perils incident to the service, and which can be a
distinctly foreseen and provided for in the rate of compensation
as .any others. * * * The master, in the case supposed, is not
exempt from liability because the servant has better means of pro-
viding for his safety, when he is employed in immediate connection
with those from whose negligence he might suffer; but because the
implied contract of the master does not extend to indemnify the
servant against the negligence of any one but himself, and he is not
liable in tort, as for the negligence of his servant, because the per-
son suffering does not stand towards him in the relation of a
stranger. Hence the separation of the employment into different
departments cannot create that liability when it does not arise from
* Newport News & M. V. Co. v. Howe, 3 C. C. A. 121, 52 Fed. 362. As to
Kentucky rule that brakeman and engineer are not fellow servants, see Louis-
ville & N. R. Co. v. Brooks' Adm'x. 83 Ky. 131 (in this case the negligence
was willful); also Louisville & N. R. Co. v. Brantley's Adm'r, 96 Ky. 297,.
28 S. W. 477; Jag. Torts, p. 1031.
126 LIABILITY OF MASTER TO SERVANT. (Ch. 3
express or implied contract, or from a responsibility created by law
to third persons and strangers for the negligence of a servant." '
This is doubtless the only satisfactory, logical basis of the doc-
trine, and in theory it is very simple and unobjectionable, but, when
its practical application is attempted in the multiplex and constantly
changing relations and gradations of employment, its difficulties at
once appear. Any one may properly assume a risk, and thus bar
his right to recover for consequent injury, and there is nothing
peculiar in the relation of master and servant that should except it
from the operation of the rule. But the difficulty arises in changing
the general doctrine of the assumption of risk to meet the changes
in the relationship. The day is not long past when all employments
were comparatively simple. Fellow servants, in a given occupation,
were limited in number and well known in the community where
they worked. Hand labor was the rule, machinery the exception,
and in these conditions the danger of being injured by the careless-
ness of a co-employe' was a risk easily measured, and properly classed
as incident to the service. But, while the rule has been preserved
by the conservatism of the courts, the tremendous mechanical de-
velopment of the last few decades has outstripped the conditions
which justified its adoption, and left it more or less of a burden
upon the great class of employe's. Some relief has been afforded in
a few states by exempting certain classes of servants, notably those
of railroads, from the operation of the rule, and in some courts the
assumption of risk and the relationship of fellow servant are treated
as questio'ns of fact to be determined by the jury. 6
The hopeless conflict of decisions in the various state courts and
the federal courts on this subject is not due to any lack of harmony
o Judge Shaw in Farwell v. Railroad Co., 4 Mete. (Mass.) 49. See, also,
Baltimore & O. R. Co. v. Baugh, 149 U. S. 368. 13 Sup. Ct. 914, where the
court says: "The obvious reason for this exemption is that he has, or in law
is supposed to have, them [the dangers] in contemplation when he engages in
the service, and that his compensation is arranged accordingly. He cannot,
in reason, complain if he suffers from a risk which he has voluntarily assumed,
and for the assumption of which he is paid."
e Wenona Coal Co. v. Holmquist, 152 111. 581, 38 X. E. 946; Mexican Nat.
Ry. Co. v. Finch, 8 Tex. Civ. App. 409, 27 S. W. 1028; Northern Pac. Coal Co.
v. Richmond, 7 C. C. A. 485, 58 Fed, 756; Lake Erie & W. R. Co. v. Hid-
dleton, 142 111. 550, 32 X. E. 453.
49) SERVANT AND FELLOW SERVANT. 127
in the acceptation of the general doctrine of the servant's assump-
tion of the risk of injury from consociation with other negligent em-
ploye's, but to inability to agree on any fixed, general rules for the
determination and definition of the relationship of fellow servant
At the outset, however, it may be stated that all courts would agree
to the fundamental proposition that the act of any employe", done in
the proper discharge of the master's duty, is not the act of a fellow
servant, but of the master. No court would, in the absence of stat-
ute, stop short of this, but many would extend the liability of the
master on much broader lines.
To attempt a definition of the relationship of fellow servant would,
for the reasons stated, be absurd. It would amount to nothing more
than a selection from the many conflicting decisions of the inter-
pretation placed on the term by one particular court, to the exclu-
sion of all others which had not adopted a similar theory. Thus, in
New York a fireman is held to be a fellow servant of the conductor, 7
but in Michigan a common laborer is not a fellow servant of the con-
ductor of a construction train. 8 In Virginia a conductor is not a fel-
low servant of trainmen, 9 while in the federal courts the relationship
would appear to depend on the circumstances of the individual case
and the character of the duty with which the conductor was charged
at the time of his shortcoming. 10
In the discussion of this subject it should not be overlooked that
the mere establishment of the fact that the offending employ^ was
not a fellow servant of the injured co-laborer does not, ipso facto,
determine the master's liability. The question of fellow servant be-
ing eliminated, it then becomes necessary to ascertain whether the
master, or the representative to whom his authority was delegated,
was lacking in the exercise of the proper degree of care which was
demanded in the circumstances.
Primarily, however, and as a condition precedent to the determina-
tion of the relationship of the different employe's, it is essential that
the master's duty in the circumstances should be clearly settled.
T Slater v. Jewett, 85 N. Y. 61.
8 Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205.
Ayers' Adm'x v. Railroad Co., 84 Va. 679, 5 S. E. 582.
10 Chicago, M. & St. P. Ry. Co. v. Ross. 112 U. S. 377, 5 Sup. Ct. 184; Bal-
timore & O. R. Co. v. Eaugh, 149 U. S. 368, 13 Sup. Ct. 914.
128 LIABILITY OF MASTER TO SERVANT. (Ch. 5
The general duties of the master to his servants have already been
enumerated, furnishing and keeping in repair proper appliances and
instrumentalities, hiring competent workmen in sufficient number,,
promulgating and enforcing rules, and exercising a general supervi-
sion of the work, etc.; but in Ohio, which is the exponent of a
clearly-defined line of decisions on this subject, and in those states-
which adopt her doctrine, the further duty of a detailed supervision
of the work and servants is imposed on the master. It will there-
fore be readily seen that in determining the relation of one servant,
as a conductor, to another, as a brakeman, the question of detailed
supervision, in other words, the master's duty, in the circumstances,
would be all important.
Community of Service.
To establish the relation of fellow servant, it is invariably essential
that community of service should exist; that both servants should
be employed by the same master. 11 So, if the wife of a servant is
injured by a co-employ of the latter, the defense of fellow servant
cannot be maintained by the master against the claim for damages. 12
And for the purposes of the relation he is to be deemed the master
for whose benefit the servant is laboring at any given time. Tims,
a servant, placed by his general employer temporarily in the service
of another, becomes for the time the servant of the latter, and as-
sumes the risk of injury from the negligence of his regular employe's,
and, if he is injured by their carelessness, he can recover from neither
his general nor temporary master. 13 And in some instances a volun-
11 Sullivan v. Railroad Co., 112 N. Y. 643, 20 N. E. 569; Sanford v. Oil Co.,
118 N. Y. 571, 24 N. E. 313; Johnson v. Navigation Co., 132 N. Y. 576, 30
N. E. 505; Devlin v. Smith, 89 N. Y. 470; Catawissa R. Co. v. Armstrong, 49
Pa. St. 186; Johnson v. Spear, 76 Mich. 139, 42 N. W. 1092; Hardy v. Rail-
road Co., 57 N. J. Law, 505, 31 Atl. 281; Rehin v. Railroad Co., 164 Pa. St.
91, 30 Atl. 356; Edward Hines Lumber Co. v. Ligas, 68 111. App. 523; Chi-
cago & A. R. Co. v. O'Brien, 155 111. 630, 40 N. E. 1023; Wilson v. Railway
Co., 51 S. C. 79, 28 S. E. 91.
12 Campbell v. Harris, 4 Tex. Civ. App. 636, 23 S. W. 35; Gannon v. Rail-
road Co.. 112 Mass. 234.
is Illinois Cent. R. Co. v. Cox, 21 111. 20; Hasty v. Sears, 157 Mass. 123, 31
N. E. 759; Coyle v. Pierrepont, 33 Hun (N. Y.) 311; Burke v. Refining Co.,
11 Hun (N. Y.) 354; The Harold, 21 Fed. 428; Ewan v. Lippiucott, 47 N. J.
Law, l'J2.
50; COMMON EMPLOYMENT AS TEST. 129
teer becomes a servant of the person for whose benefit he contributes
his service, and cannot recover against the employer for injuries sus-
tained by the negligence of his fellow workmen; 14 but, if the service
is contributed with the knowledge and consent of the master, he
has been held entitled to recover for such injuries. 15 Servants of
different connecting lines of railroad are not fellow servants, no mat-
ter what the agreement between the different roads may be. 16 And,
in general, the servants of one employer, and those of another en-
gaged in conducting an independent piece of work, although laboring
side by side, are not fellow servants. 17
50. COMMON EMPLOYMENT AS TEST In the English,
and in a few American, courts, the test of common
employment is applied to determine the relationship
of fellow servant.
To attempt to define or test the relation of fellow servant by the
community of employment would seem to merely increase the con-
n Potter v. Faulkner. 31 Law J. Q. B. 30; Millsaps v. Railway Co., 69 Miss.
423, 13 South. 696; Holmes v. Railway Co., L. R. 4 Exch. 254.
is Eason v. Railway Co., 65 Tex. 577; Chicago, M. & St. P. Ry. Co. v. West,
125 111. 320, 17 X. E. 788.
16 Sullivan v. Railroad Co., 112 N. Y. 643, 20 N. E. 569; Catawissa R. Co,
v. Armstrong, 49 Pa. St. 186; Sawyer v. Railroad Co., 27 Vt 370; Stetler v.
Railroad Co.. 46 Wis. 497, 1 X. W. 112; Smith v. Railroad Co., 19 X. Y. 127;
In re Merrill, 54 Vt. 200; Connolly v. Davidson, 15 Minn. 519 (Gil. 428); Taylor
v. Railroad Co., 45 Cal. 323; Zeigler v. Railroad Co., 52 Conn, 543; Gray v.
Railroad Co., 24 Fed. 168; Strader v. Railroad Co., 157 N. Y. 708, 52 N. E.
1126. And a Pullman car porter is not a fellow servant of switchman in
employ of railroad company. Hughson v. Railroad Co., 2 App. D. C. 98. See,
also, Tierney v. Railroad Co., 85 Hun, 146, 32 N. Y. Supp. 627; Bosworth v.
Rogers, 27 C. C. A. 385, 82 Fed. 975; Strader v. Railroad Co., 157 N. Y. 70S,
52 X. E. 1126.
IT Coughtry v. Woolen Co., 56 N. Y. 124; Hass v. Steamship Co., 88 Pa. St.
269; Cunningham v. Railroad Co., 51 Tex. 503; Goodfellow v. Railroad Co.,
106 Mass. 461; Lake Superior Iron Co. v. Erickson, 39 Mich. 492; Galveston,
H. & S. A. Ry. Co. v. Masterson (Tex. Civ. App.) 51 S. W. 1091. But see Ewan
v. Lippincott, 47 X. J. Law, 192; Johnson v. City of Boston, 118 Mass. 114;
Illinois Cent. R. Co. v. Cox, 21 111. 20; Charles v. Taylor, 3 C. P. Div. 492,
As to the servants of a subcontractor, see Curley v. Harris. 11 Allen, 112; Wig-
gett v. Fox. 11 Exch. 832; Murray v. Currie, L. R. 6 C. P. 24.
BAR.XEG. 9
130 LIABILITY OF MASTER TO SERVANT. (Ch. 3
fusion attending this subject by the addition of a new phrase. Yet
the English courts have adopted this test, and hold that a "common
employment" is established if it appears that both servants were en-
gaged in one general business, in the service of the same master, with
one aim or result in view. 1 Mr. Pollock says: "All persons engaged
under the same employer, for the purposes of the same business, how-
ever different in detail those purposes may be, are fellow servants.
The kind of work need not be the same; the employer must be. They
need not be engaged in the same department of service, but they must
be working for a common object." 2 Thus, it was held that a general
carpenter in the employ of a railroad company, who was injured
while at work on a shed near the tracks, by the careless shifting by
porters of an engine, which struck and knocked down the scaffold
on which he was standing, could not recover from his employer. 3
And similar decisions are not wanting in our own courts. 4 In Illi-
nois it is necessary, to constitute co-employe's "fellow servants in the
same common employment," either that, at the time the injury is
suffered, they should be actually co-operating in the achievement of
the object in view, or should be in constant, habitual association in
the performance of their ordinary duties; 5 as a common laborer on
a wood train and the engineer of the same train. 6 And some of our
ablest American text writers not only make the determination of the
question of common employment of supreme importance, but even
go so far as to make it the test of the master's exemption, to the
exclusion of the relation of fellow servant. Thus, Shearman and Red-
field in their most excellent treatise say: "The opinions of the courts
50. i Bartonshill Coal Co. v. Reid, 3 Macq. H. L. Cas. 2G6.
2 Pol. Torts, pp. 86-88.
Morgan v. Railway Co., 5 Best & S. 570, L. R. 1 Q. B. 149. See, also,
Swainson v. Railway Co., 3 Exch. Div. 341.
* Catawissa R. Co. v. Armstrong, 49 Pa. St. 186; Moynihan v. Hills Co.,
146 Mass. 586-594, 16 N. E. 574; Webb v. Railway Co., 7 Utah, 363, 26 Pac.
981; Dixon v. Railroad Co., 109 Mo. 413, 19 S. W. 412. See, also, Griffiths v.
Wolfram, 22 Minn. 185; Osborne v. Morgan, 130 Mass. 102.
6 Chicago & N. W. R. Co. v. Snyder, 117 111. 376, 7 N. E. 604; Honner v.
Railroad Co., 15 111. 550; Illinois Cent. R. Co. v. Cox, 21 111. 20; Columbus,
C. & I. C. Ry. Co. v. Troesch, 68 111. 545; Gartland v. Railroad Co., 67 111.
498. See, also, Chicago & A. li. Co. v. Kelly, 127 111. 637, 21 N. E. 203; Joliet
Steel Co. v. Shields. 134 111. 209, 25 N. E. 069.
e Illinois Cent. R. Co. v. Cox, 21 111. 20.
51-52) VICE PRINCIPAL. 131
have generally failed to distinguish, between the questions of what
constitutes a fellow servant and what constitutes common employ-
ment; and in many cases it has been held that two servants of the
same master were not fellow servants, when all that was really
meant by the court was that they were not in the same common em-
ployment." 7 Whereby it would appear that two persons may be fel-
low servants, and yet not be in the same common employment. But,
from a logical as well as a common-sense point of view, common em-
ployment would seem to be a mere prerequisite, a condition precedent
to the establishment of the relationship of fellow servant, and not
an added condition. All fellow servants must be in the same com-
mon employment, but not all in the same common employment are
necessarily fellow servants. Whatever the proper function of the
term may be, its use in a technical sense is apt to breed confusion,
and will not be so used hereafter.
51. VICE PRINCIPAL In American courts the relation
of fellow servant is commonly tested by the appli-
cation of the doctrine of vice principal.
52. A vice principal, for the purposes of the test, is one
who, regardless of grade, is actually engaged in the
discharge of some positive duty owed by the com-
mon master to his employes.
In determining the relation of fellow servant, and the consequent
exemption from liability of the master, the consideration of the re-
lation of vice principal is, in a majority of cases, intimately blended;
for the circumstances of employment of two men may in every way
satisfy the requirements of the relation of fellow servants, yet if it
happen that the offending employe', at the time of his shortcoming,
is, with authority, attempting to discharge a master's duty, the em-
ployer would, in any court, be held liable for the consequent injury
to his fellow.
Prima facie all who enter into the employment of a single master
are engaged in a common service, and are fellow servants. A fel-
low servant ceases to be such, and becomes a vice principal, when
he is clothed with power of control and direction, and, in the due
T Shear. & K. Xeg. (4th Ed.) 234.
132 LIABILITY OF MASTER TO SERVANT. (Ch. &
exercise of such power, is intrusted with the performance of some
positive duty, owed to other employe's, and which has devolved on
him from the master.
A master assumes the duty towards his servant of exercising
reasonable care and diligence to provide the servant with a reasona-
bly safe place in which to work, with reasonably safe machinery,
tools, and implements to work with, with reasonably safe mate-
rials to work upon, and with suitable and competent fellow servants
to work with him; and, when the master has properly discharged
these duties, then, at common law, the servant assumes all the risks
and hazards incident to and attendant upon the exercise of the
particular employment or the performance of the particular work,
including those risks and hazards resulting from the possible neg-
ligence and carelessness of his fellow servants and co-employe's. 1
In other words, the master may not absolve himself from the per-
formance of a positive duty by delegating it to a subordinate. But r
to render the master liable, it would appear that the act complained
of, whether it be that of himself or one acting for him, must involve
the commission of some positive wrong, the breach of some special
duty. If he discharges all that may be called positive duty, and
is himself guilty of no neglect, it would seem that he should be
absolved from all personal responsibility. 2 And so, in the federal
and many other courts, the liability of the master is not made to
depend in any manner upon the grade of service of a co-employe',
but upon the character of the act itself, and a breach of a positive
obligation of the master; it being immaterial how or by whom the
master undertakes to discharge the duty. 3
51-52. i Atchison, T. & S. F. R. Co. v. Moore, 29 Kan. 632, 644; Union
Pac. R. Co. v. Doyle, 50 Neb. 555, 70 N. W. 43; Norfolk\& W. R. Co. v. Houch-
1ns' Adm'r, 95 Va. 398, 28 S. E. 578.
2 Baltimore & O. R. Co. v. Bangh, 149 U. S. 368, 13 Sup. Ct. 914.
Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914; Chicago.
M. & St. P. Ry. Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184; Hough v. Railway
Co., 100 U. S. 213; Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct.
590; Loughlin v. State, 105 N. Y. 159, 11 N. E. 371; Slater v. Jewett, 85 N. Y.
61; Filbert v. Canal Co., 121 N. Y. 207, 23 N. E. 1104; O'Brien v. Dredging
Co., 53 N. J. Law, 291, 21 Atl. 324; Potter v. Railroad Co., 46 Iowa, 399;
State v. Malster, 57 Md. 287; Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514;
Gaffuey v. Railroad Co., 15 R. I. 456, 7 Atl. 284.
51-52) VICE PRINCIPAL. 133
Much diversity of opinion exists in different courts as to what
constitutes the master's duty, the breach of which, by his representa-
tives, will render him liable. In any instance, the determination of
this question is of the first and vital importance.
In Xew York the gist of the matter consists in determining whether
the duty violated by the negligent servant is one owed by him as
a co-operative or in a capacity representative of the master. His
grade or authority is of no importance. The superintendent is not
disqualified by his position from being a fellow servant with the
lowest grade of employe', and, if he negligently performs the duty
of a mere employ^, the act, however careless or injurious, is that of
a servant only.* If, however, the act, such as the repair of ma-
chinery, is within the master's duty, and is negligently performed
by any employe' charged with its execution, such employe", whatever
his grade, is a vice principal, so far as that act is concerned. 5 A
similar rule, modified in some instances by statute, is found in many
other states. 6
It is observable, however, that those who are working together
* Filbert v. Canal Co., 121 X. Y. 207, 23 N. E. 1104; Loughlin v. State, 105
N. Y. 159, 11 X. E. 371; Jenkinson v. Carlin, 10 Misc. Rep. 22, 30 X. Y. Supp.
530; Kennedy v. Iron Works, 12 Misc. Rep. 336, 33 X. Y. Supp. 630; Con way
v. Railroad Co., 13 Misc. Rep. 53, 34 N. Y. Supp. 113; Fitzgerald v. Honkomp,
44 111. App. 365 (citing Chicago & A. R. Co. v. May, 108 111. 288); Stewart v.
Ferguson, 34 App. Div. 515, 54 X. Y. Supp. 615; Perry v. Rogers, 157 X. Y.
251, 51 X. E. 1021.
B Scherer v. Manufacturing Co., 86 Hun, 37, 33 X. Y. Supp. 205; Redington
v. Railway Co., 84 Hun, 231, 32 X. Y. Supp. 535; Crowell v. Thomas, 18 App.
Div. 520, 46 X. Y. Supp. 137; Egan v. Railroad Co., 12 App. Div. 556, 42 N. Y.
Supp. 188; Strauss v. Manufacturing Co., 23 App. Div. 1, 48 X. Y. Supp. 425;
O'Connor v. Barker, 25 App. Div. 121, 49 X. Y. Supp. 211.
6 Smoot v. Railroad Co., 67 Ala. 13 (statute); McLean v. Mining Co., 51
Cal. 255 (statute); Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 X. E. 380;
Doughty v. Log-Driving Co., 76 Me. 143; Moynihan v. Hills Co., 146 Mass. 586,
16 X. E. 574 (statute); Adams v. Cliffs Co., 78 Mich. 271, 288, 44 X. W. 270;
Lindvall v. Woods, 41 Minn. 212, 42 X. W. 1020 (but see Blomquist v. Railway
Co., 60 Minn. 426, 62 X. W. 818); Xew Orleans, J. & G. X. R. Co. v. Hughes,
49 Miss. 258 (statute); Jaques v. Manufacturing Co., 66 X. H. 482, 22 Atl.
552; Ell v. Railroad Co., 1 X. D. 336, 48 X. W. 222; International & G. X.
Ry. Co. v. Ryan, 82 Tex. 565, 18 S. W. 219 (statute); Zintek v. Mill Co., 9 Wash.
395. 37 Pac. 340; Dwyer v. Express Co., 82 Wis. 307, 52 X. W. 304 (statute);
Thomas, Xeg. p. S6G.
134 LIABILITY OF MASTER TO SERVANT. (Ch. 3
in making, repairing, or altering the appliances or machinery are
engaged in a common service, each performing the master's duty r
and, inter se, are fellow servants. 7
The Rule in Ohio.
The Ohio rule embodies all the requirements of that of New York,
but goes further, requiring a detailed supervision to be exercised
over servants. The heads of departments, therefore, even in minor
subdivisions, are representative of the master, and are charged with
the performance of the duties that the law lays upon him. This is
but an extension of the duty, not of the principle. The distinguish-
ing characteristic of the Ohio rule consists in the adaptation, once
a vice principal, always a vice principal. That is to say, the person
in control cannot in any way devest himself of his representative
capacity and accompanying responsibility; he cannot pull a rope
or lift on a timber as an ordinary employe', a fellow servant with
the others, but the act, if carelessly or unskillfully done, is the neg-
ligence of the master, and carries liability for consequent injury. 8
In Illinois, mere possession of authority or power to control and
discharge does not create the relation of vice principal. There must
be an exercise of such authority and power at the particular time
in question. This is in direct contrast to the Ohio rule. As a pre-
requisite, however, to the establishment of the relation of fellow
servant, it is essential that the employe's of the same master should
immediately co-operate in the same line of employment, to the end
and extent that they may have opportunity to observe and avoid
the negligent acts of each other. At the time of the injury they
must be actually co-operating in the particular business in hand,
or their usual duties must bring them into habitual consociation,
so that they can exercise an influence upon each other promotive of
proper caution for their personal safety. 9 And under this rule a
7 Murphy v. Railroad Co., 88 N. Y. 146.
s Little Miami R. Co. v. Stevens, 20 Ohio, 415; Berea Stone Co. v. Kraft,
31 Ohio St. 287. But see Lake Shore & M. S. Ry. Co. v. Lamphere, 9 Ohio
Cir. Ct. R. 2G3; Baltimore & O. R. Co. v. Sutherland, 12 Ohio Cir. Ct. R. 309;
McCann v. Pennsylvania Co., 10 Ohio Cir. Ct. R. 139, 3 Ohio Dec. 444; Lake
Shore & M. S. Ry. Co. v. Hunter, 13 Ohio Cir. Ct. R. 441, 7 Ohio Dec. 206.
Chicago & X. W. Ry. Co. v. Moranda, 108 111. 576; North Chicago Rolling-
Mill Co. v. Johnson, 114 111. 57, 29 X. E. 186; Chicago & A. R. Co. v. O'Brien,
155 111. 630, 40 X. E. 1023; Kolb v. Carrington, 75 111. App. 159.
51-52) VICE PRINCIPAL. 135
station agent, having charge of defendant's station, grounds, side
tracks, etc., is not a fellow servant of a brakeman on a pile-driver
train, so as to prevent a recovery by the latter for injuries caused
by the negligence of the former in leaving a car on a side track too
close to the main track to allow the brakeman's train to pass. 10
Whether the employe's were so operating and consociating, within
the rule as above stated, is a question of fact for the jury. 11 The
rule as to superior and subordinate in Illinois is thus stated by the
supreme court: "A sen-ant having the exclusive control over other
servants under a common master, including the hiring and dis-
charging, is, in the exercise of those powers, the representative of
the master, and not a mere fellow servant. The mere fact, however,
that one of a number of servants, who are in the habit of working
together in the same line of employment for a common master, has
power to control and direct the actions of the others with respect
to such employment, will not, of itself, render the master liable for
the negligence of the governing servant, resulting in an injury to one
of the others, without regard to the circumstances. On the other
hand, the mere fact that the servant exercising such authority some-
times or generally labors with the others as a common hand will
not, of itself, exonerate the master from liability for the former's
negligence in his exercise of authority over others. Every case, in
this respect, must stand upon its own circumstances. If the negli-
gence complained of consists of some act done or omitted, by one hav-
ing such authority, which relates to his duty as a co-laborer with those
under his control, and which might just as readily have happened
with one of them having no such authority, then the common master
will not be liable; but when the negligent act complained of arises
out of, and is the direct result of, the exercise of the authority con-
ferred upon him by the master over his co-laborer, the master will
10 St. Louis, A. & T. H. R. Co. v. Biggs, 53 111. App. 550; West Chicago
St. R. Co. v. Dwyer, 57 111. App. 440; Chicago & A. R. Co. v. Swan, TO 111.
App. 331; Illinois Cnt. R. Co. v. McCowan, Id. 345; Chicago & A. R. Co. v.
House, 172 111. 601, 50 X. E. 151.
nAYestville Coal Co. v. Schwartz, 177 111. 272, 52 X. E. 276; Chicago & A.
R. Co. v. O'Brien, 155 111. 630, 40 X. E. 1023; Consolidated Coal Co. v. Schei-
ber, 167 111. 539, 47 X. E. 1052; Mobile & O. R. Co. v. Massey, 152 111. 144,
38 X. E. 787; Chicago & X. W. Ry. Co. v. Moranda, 108 111. 576; Chicago &
X. W. Ry. Co. v. Tuite, 44 111. App. 535.
136 LIABILITY OF MASTEK TO SERVANT. (Ch. 3
be liable. To illustrate the rule, when a railway company confers
upon one of its employe's authority to take charge of and control a
gang of men in carrying on some particular branch of its business,
he is the direct representative of the company, and all commands
given by him, within the scope of his authority, are, in law, the com-
mands of the company. The fact that he may have an immediate
superior standing between him and the company makes no differ-
ence in this respect. In exercising the power, he does not stand on
the same plane with those under his control. His position is one
of superiority. When he gives an order within the scope of his au-
thority, if not manifestly unreasonable, those under his charge are
bound to obey, at the peril of losing their situations; and such com-
mands are, in contemplation of law, the commands of the company,
and hence it is held responsible for the consequences." 12
Tfe Rule in Michigan.
The general rule in Michigan is concisely stated in Adams v. Iron
Cliffs Co.: 13 "All who serve the same master, work under the same
control, derive authority and compensation from the same common
source, and are engaged in the same general business, though it may
be in different grades or departments of it, are fellow servants.
* * * Nor does it make any difference that the servant guilty of
the negligence is a servant of superior authority, unless such superior
servant rises to the grade of the alter ego of the principal." Thus,
a brakeman is not a fellow servant with a car inspector; 14 a train
dispatcher, having absolute control of the running of trains, is not
a fellow servant of those, subject to his directions, who are engaged
in operating the trains. 15 To constitute the servant vice principal,
his control and superintendence must be general, and it matters not
Chicago & A. R. Co. v. May, 108 111. 288, 300. See, also, Fraser v. Schroe-
der, 163 111. 459, 45 X. E. 288.
is 78 Mich. 271, 288, 44 N. W. 270, 276; Smith v. Potter, 46 Mich. 263, 9
N. W. 273. A founder having charge of the work inside a blast furnace is a
fellow servant of the engineer of the locomotive used in moving cars on the
premises. Adams v. Iron Cliffs Co., 78 Mich. 271, 44 X. W. 270. Painters are
fellow servants of carpenters in the use of a scaffolding previously constructed
and used by the latter. Hoar v. Merritt, 62 Mich. 3S6, 29 X. W. 15; Beesley
v. Wheeler, 103 Mich. 196, 61 X. W. 658.
i* Morton v. Railroad Co., 81 Mich. 423, 46 X. W. 111.
icHunn v. Railroad Co., 78 Mich. 513, 44 X. W. 502.
51 O 2) VICE PRINCIPAL. 137
how the authority devolved on him. 16 But he must have full and
absolute charge over both the work and the men, so that his discre-
tion and control dominate. 17 A special authority, giving a power of
supervision over a limited portion of the work only, does not make
the qualified superintendent a vice principal, or change his relations
to his co-laborers so as to make the master responsible for injuries
to a servant resulting from his negligence. 18 It would, however, ap-
pear that the rule of fellow servant in Michigan has no application
when the servant is performing duties outside the scope of his em-
ployment, or when he is sent into a dangerous place or exposed to
extraordinary perils by one in authority over him. 19 It is, moreover,
well settled that those employed to provide and keep in repair the
places or supply the machinery and tools for labor are engaged in
employments distinctly separate from those who use the places and
appliances so furnished, and are not fellow servants with them. 20
But the decisions are not so clear or consistent as to make it certain
that this rule applies to those charged with keeping in repair the in-
strumentalities other than the place where the labor is to be per-
formed. 21
The Rule in Massachusetts.
In Massachusetts the rule is involved in great perplexity. In Hoi-
den v. Fitchburg R. Co., 22 the court says: "It is well settled in this
commonwealth and in Great Britain that the rule of law that a
.servant cannot maintain an action against his master for an injury
i Ryan v. Bagaley, 50 Mich. 179, 15 X. W. 72.
IT Slater v. Chapman, 67 Mich. 523. 35 X. W. 106; not vice principal, Schroe-
der v. Railroad Co., 103 Mich. 213, 61 X. W. 663; Morch v. Railway Co., 113
Mich. 154, 71 X. W. 464.
is Quincy Min. Co. v. Kitts, 42 Mich. 34, 3 X. W. 240; Ryan v. Bagaley, 50
Mich. ISO, 15 X. W. 72.
i Chicago & X. W. Ry. Co. v. Bayfield, 37 Mich. 210.
20 Roux v. Lumber Co., 94 Mich. 607, 54 N. W. 492, approving Sadowski v.
<3ar Co., 84 Mich. 100, 47 X. W. 598.
21 Roux v. Lumber Co., 94 Mich. 607, 54 X. W. 492, partially adopting the
rule as stated in Xorthern Pac. R. Co. v. Herbert, 116 U. S. 653, 6 Sup. Ct.
590; Ashman v. Railway Co., 90 Mich. 567, 51 X. W. 645, approvingly citing
Ford v. Railroad Co., 110 Mass. 240. And see Hoar v. Merritt, 62 Mich. 330,
29 X. W. 15; Van Dusen v. Letellier, 78 Mich. 492, 44 X. W. 572; Dewev v.
Bailway Co., 97 Mich. 329, 56 X. W. 756; Frazee v. Stott (Mich.) 79 X. W. 896.
22 129 Mass. 208, 271.
138 LIABILITY OF MASTER TO SERVANT. (Oh. 3-
caused by the fault or negligence of a fellow servant is not confined
to the case of two servants working in company, or having opportu-
nity to control or influence the conduct of each other, but extends
to every case in which the two, deriving their authority and their
compensation from the same source, are engaged in the same busi-
ness, though in different departments of duty; * * * and it makes
no difference that the servant whose negligence causes the injury is a
submanager or foreman, of higher grade or greater authority than
the plaintiff." And again, in Ford v. Fitchburg R. Co.: 23 "The
agents who are charged with the duty of supplying safe machinery are
not, in the true sense of the rule relied on, to be regarded as fellow
servants of those who are engaged in operating it. They are charged,
with the master's duty to his servant. They are employed in distinct
and independent departments of service, and there is no difficulty
in distinguishing them, even when the same person renders service
by turns in each, as the convenience of the employer may require.
In one the master cannot escape the consequences of the agent's neg-
ligence; if the servant is injured in the other, he may." The lan-
guage employed in these cases has occasioned much perplexity and:
concern in subsequent decisions by the same court, and its excuse has
been attempted in Johnson v. Boston Tow-Boat Co. 24 and subsequent
23 110 Mass. 240, 260.
24 135 Mass. 209. And see Dowd v. Railroad Co., 162 Mass. 185, 38 N. E.
440; McPhee v. Scully, 163 Mass. 216, 39 N. E. 1007; Trimble v. Machine
Works, 172 Mass. 150, 51 X. E. 463; Meehan v. Manufacturing Co. (Mass.)
52 N. E. 518; McCoy v. Town of Westboro (Mass.) 52 N. E. 1064; Whelton
v. Railway Co. (Mass.) 52 X. E. 1072. Inspector of cars is fellow servant with
brakeman. Bowers v. Railroad Co., 162 Mass. 312, 38 N. E. 508. In John-
son v. Tow-Boat Co., 135 Mass. 209, the court says: "When a master has
furnished suitable structures, means, and appliances for the prosecution of a
business, all persons employed by him in carrying on the business by the
use of the means provided, including those who use the means directly in;
the prosecution of the business, those who maintain them in a condition to-
be used, and those who adapt them to use by new appliances and adapta-
tions incidental to their use, are fellow servants in the general employment
and business. One employed in the care, supervision, and keeping in ordi-
nary repair of the means and appliances used in a business is engaged in the
common service." See, also, rule as stated in Moynihan v. Hills Co., 146 Mass,
SSu. 1G X. E. 574, wherein it is stated that the master's duty is to "main-
tain," as well as "provide," suitable machinery, appliances, etc. The Massa-
51-52) VICE PRINCIPAL. 139 1
cases, with the result that the whole subject is involved in still
greater doubt and uncertainty.
Tlie Rule in Pennsylvania.
The rule in Pennsylvania is in many respects similar to that in
Massachusetts; the test of fellow servant being the employment by
the same master in common service, without regard to immediate
superiority of grade, although the representative having absolute and
entire charge is vice principal.
In Lewis v. Seifert, 25 the rule is stated in the following language:
"It is sufficient if they are in the same employment by the same
master, engaged in the same common work, and performing duties
and services for the same general purpose. To constitute such fel-
low servants, they need not at the time be engaged in the same par-
ticular work." But it will be at once discerned that this enunciation
is too broad and vague to determine any particular doctrine, or'throw
any light on the exact position held by the court. As pointed out
by Judge Bailey, 26 it is not exactly true that those servants who are
employed by the same master, engaged in the common work, and per-
forming duties for the same general purpose, are fellow servants.
Their employment for the purposes named is a prerequisite to their
chusetts statute determining the liability of masters in certain cases is in
part as follows (chapter 270, Laws 1887): "Section 1. Where, after the pas-
sage of this act, personal injury is caused to an employs, who is himself In
the exercise of due care and diligence at the time: (1) By reason of any
defect in the condition of the ways, works, or machinery connected with or
used in the business of the employer, which arose from, or had not been
discovered or remedied owing to, the negligence of the employer, or of any
person in the service of the employer, and intrusted by him with the duty
of seeing that the ways, works, or machinery were in proper condition; (2)
by reason of negligence of any person in the service of the employer, in-
trusted with and exercising superintendence, whose sole duty is that of
superintendence; (3) by reason of the negligence of any person in the serv-
ice of the employer who has the charge or control of any signal, switch, loco-
motive, engine, or train upon a railroad, the employe, or, in case the injury
result in death, the legal representatives of such employe, shall have the
same right of compensation and remedies against the employer as if the
employ^ had not been an employs of nor in the service of the employer, nor
engaged in its work."
25 116 Pa. St. G2S, 11 Atl. 514.
*e Bailey, Mast. Ldab. p. 2t>5.
140 LIABILITY OF MASTER TO SERVANT. (Ch. 3
classification as fellow servants, but not all thus employed are fel-
low servants. This is recognized by the court later on in the same
decision quoted above: "There are some duties which the master
owes to the servant, and from which he cannot relieve himself, ex-
cept by performance. Thus, the master owes every employe" the duty
of providing a reasonably safe place in which to work, and reasonably
safe instruments, tools, and machinery with which to work. This is
a direct, personal, and absolute obligation; and, while the master
may delegate these duties to an agent, such agent stands in the
place of his principal, and the latter is responsible for the acts of such
agent; and where the master or superior places the entire charge of
his business, or a distinct branch of it, in the hands of an agent or
subordinate, exercising no discretion or oversight of his own, the
master is held liable for the negligence of such agent or subordi-
nate." 2T The law as enunciated in this case may probably be taken
as the accepted doctrine in Pennsylvania, although earlier and con-
flicting decisions have not been expressly overruled. 28 These earlier
decisions clearly indicate that the master may relieve himself of re-
sponsibility in supplying machinery and appliances, however defective
and unsuitable they may be in fact, provided he intrusts their struc-
ture or selection to competent and skillful persons; but, as they are
no longer cited with approval, the disapproval of their principles
may be taken as implied.
The doctrine of superior and subordinate is not recognized in this
state.
The Rule in Minnesota.
In Minnesota the duty of providing reasonably safe places, appli-
ances, and instrumentalities cannot be delegated by the master so as
27 Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514; Xoll v. Railroad Co., 163
Pa. St. 504, 30 Atl. 157; Rehm v. Railroad Co., 164 Pa. St. 91, 30 Atl. 35G;
Prevost v. Refrigerating Co., 185 Pa. St. 617, 40 Atl. 88. But where the
control is qualified, see Schroeder v. Railroad Co., 103 Mich. 213, 61 N. W. 663.
28 Ardeseo Oil Co. v. Gilson, 63 Pa. St. 150. The court illustrates the prin-
ciple by saying: "If I employ a well-known and reputable machinist to con-
struck a steam engine, and it blows up from bad materials or unskillful work,
I am not responsible for any injury which may result, whether to my own
servant or to a third person." Mansfield Coal & Coke Co. v. McEnery, 91 Pa.
St. 185.
5152) VICE PRINCIPAL. 141
to relieve him of responsibility. 29 Differences of grade or authority
do not determine the relation of fellow servant. 30 The employ 6 be-
comes vice principal only when he is intrusted with the performance
of some absolute duty of the master himself, such as the provision,
of proper instrumentalities with which the servant is to perform his
work. 31 But in the construction of appliances or instrumentalities
all those who are engaged in the work are fellow servants, regardless
of grade or department of service; such building or construction be-
ing regarded as a part of the regular work which they are hired ta
perform. The leading case on this point is that of Lindvall v.
Woods, 32 in w T hich a foreman and laborers under him were held to be
fellow servants while engaged in building a trestle to be used in fur-
therance of the general business. In the later case of Blomquist v.
Chicago, M. & St. P. Ky. Co., 33 the foreman of a crew of laborers en-
gaged in constructing bridge piers, and having authority, in the ab-
sence of defendant's engineer, to superintend the work, was held to-
be a vice principal; but in the latter case the violation of defendant's
duty consisted in the negligence of the foreman in adjusting and pla-
cing the derrick, by means of which the stones were raised into place,,
the plaintiff being absent when the derrick was so placed.
The master also owes the duty to his servants of reasonable in-
spection and maintenance of appliances and instrumentalities, 34 and
those engaged in making repairs are representative of the master.
The Minnesota statute defining vice principals is nothing more than
29 Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020; Brown v. Railway Co.,.
31 Minn. 553, IS N. W. 834. But car inspector is not fellow servant of brake-
man. Fay v. Railway Co., 30 Minn. 231, 15 N. W. 241; Tierney v. Railway
Co., 33 Minn. 311, 23 N. W. 229; Macy v. Railroad Co., 35 Minn. 200, 28 N. W.
240.
so Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020; Fraker v. Railway
Co., 32 Minn. 54, 19 X. W. 349; Brown v. Railway Co., 31 Minn. 553, 18 N.
W. S34; Tierney v. Railway Co., 33 Minn. 311, 23 N. W. 229.
31 Brown v. Railway Co., 31 Minn. 553, 18 X. W. 834; Stahl v. City of
Dulutli, 71 Minn. 341, 74 N. W. 143; Lundberg v. Shevlin-Carpenter Co., 6&
Minn. 135, 70 N. W. 1078; Holman v. Kempe, 70 Minn. 422, 73 N. W. 186.
32 41 Minn. 212, 42 N. W. 1020; Fraser v. Lumber Co., 45 Minn. 235, 4T
N. W. 785.
as 60 Minn. 426, 62 X. W. 818.
s* Anderson v. Railroad Co., 39 Minn. 523, 41 N. W. 104.
142 LIABILITY OF MASTER TO SERVANT. (Ch. 3
.an enunciation of the doctrine which has long been the well-settled
common law of the state. 35
53. RULE IN FEDERAL COURTS The master is re-
sponsible for any breach of a positive duty owed
by him to his employes, and the grade of the serv-
ant through -whose immediate negligence the breach
occurs is immaterial in determining the master's
liability, although a distinction is drawn between
servants exercising no supervision and those whose
duties are those solely of superintendence and direc-
tion.
64. The master cannot avoid responsibility in the delega-
tion of his duty as to premises, appliances, and ma-
chinery.
The case of Baltimore & O. R Co. v. Baugh * enunciates the law
on this subject as now settled in the federal courts. In that case
the fireman on a locomotive engine was injured by reason of the
negligence of the engineer in charge of the engine, which was run-
ning without any train attached. The judgment of the trial court,
-allowing recovery, was reversed, the court holding that the engineer
and fireman were fellow servants. The doctrine therein stated as
the correct rule for determining the relation of vice principal is a
modification of that found in the earlier case of Chicago, M. & St.
P. Ry. Co. v. Boss, 2 decided in 1884. The latter case involved a some-
what radical departure from the former holdings of this court on the
same subject. Ross was a locomotive engineer, and was injured
through the negligence of the conductor in charge of the train to
so Whenever a master or employer delegates to any one the performance
of his duties which he, as master or employer, owes to his servants, or any
part or portion of such duties, the person so delegated, while so acting for
his master or employer, shall be considered the vice principal and represent-
ative of the master. Chapter 173, 2, Gen. Laws 1895.
53-54. i 149 U. S. 308, 13 Sup. Ct. 914.
2 112 U. S. 377, 5 Sup. Ct 184. In support of its position in this case the
court cites Little Miami R. Co. v. Stevens. 20 Ohio, 415; Cleveland, C. & C. R.
Co. v. Keary, 3 Ohio St 201; Louisville & N. R. Co. v. Collins, 2 Duv. (Ky.) 114.
53-54) RULE IN FEDERAL COURTS. 143
which his engine was attached. His recovery in the lower court
was affirmed, it being distinctly held that the conductor and en-
gineer were not fellow servants. The opinion of the court, writ-
ten by Mr. Justice Field, who also wrote 'a dissenting opinion in the
Baugh Case, clearly holds the individual train to be a distinct and
separate department of the general service, of which department the
conductor had the sole and exclusive charge. The court says: "We
agree with them in holding and the present case requires no fur-
ther decision that the conductor of a railway train, who commands
its movements, directs when it shall start, at what stations it shall
stop, at what speed it shall run, and has the general management
of it, and control over the persons employed upon it, represents the
company, and, therefore, that for injuries resulting from his negli-
gent acts the company is responsible. If such a conductor does not
represent the company, then the train is operated without any rep-
resentative of its owners." And again: "There is, in our judg-
ment, a clear distinction to be made, in their relation to their com-
mon principal, between the servants of a corporation exercising no
supervision over others engaged with them in the same employment,
and agents of the corporation clothed with the control and man-
agement of a distinct department, in which their duty is entirely
that of direction and superintendence." As abstract propositions
of law, the foregoing statements are not open to objection, but the
hypothesis deprives them of value when applied to the case under
consideration. Is it true that the conductor has absolute direction
and control of his train, as assumed in the opinion? Is he not sub-
ject to the limitations of time-tables, train dispatchers, special orders,
and fixed rules? Has he any discretion as to the speed of the train,
or at what stations it shall stop? It is to be observed that the
language of the court is general, and not limited to the particular
circumstances of this case.
In Baltimore & 0. R. Co. v. Baugh the opinion in the Ross Case
is fully discussed, and the extremity of its doctrine palpably cur-
tailed. The court says: "And from this natural separation flows
the rule that he who is placed in charge of such separate branch
of the service, who alone superintends and has the charge of it,
is as to it in the place of the master. But this is a very differ-
144 LIABILITY OF MASTER TO SERVANT. (Ch. &
ent proposition from that which, affirms that each separate piece
of work in one of these branches of service is a distinct depart-
ment, and gives to the individual having control of that piece of
work the position of vice principal or representative of the master.
Even the conclusion enunciated in the Eoss Case was not reached
by a unanimous court, four of its members being of opinion that it
was carrying the thought of a distinct department too far to hold
it applicable to the management of a single train."
That the court gives no weight to the bare relation of superior and
subordinate appears from the following excerpt from the same opin-
ion : "But the danger from the negligence of one specially in charge
of the particular work is as obvious and as great as from that of those
who are simply co-workers with him in it. Each is equally with the
other an ordinary risk of the employment. If he is paid for one, he
is paid for the other; if he assumes the one, he assumes the other.
Therefore, so far as the matter of the master's exemption from liabil-
ity depends upon whether the negligence is one of the ordinary risks
of the employment, and, thus assumed by the employe', it includes all
co-workers to the same end, whether in control or not. But if the
fact that the risk is or is not obvious does not control, what test or
rule is there which determines? Kightfully, this: There must be
seme personal wrong on the part of the master, some breach of
positive duty on his part. If he discharges all that may be called
positive duty, and is himself guilty of no neglect, it would seem as
though he were absolved from all responsibility, and that the party
who caused the injury should be himself alone responsible. It may
be said that this is only passing from one difficulty to another, as it
leaves still to be settled what is positive duty and what is personal
neglect; and yet, if we analyze these matters a little, there will ap-
pear less difficulty in the question. Obviously, a breach of positive
duty is personal neglect; and the question in any given case is, there-
fore, what is the positive duty of the master?"
Respecting the duty of the master to furnish and maintain reason-
ably safe premises, instrumentalities, and machinery for the perform-
ance of the work, this court is in harmony with New York rule.
These are positive duties, and cannot be delegated by the master so
as to relieve him from liability for their improper performance. The
persons intrusted with their performance represent the master, and
53-54) RULE IN FEDERAL COURTS. 145
are vice principals, and not fellow servants, as to those engaged in
the use of the instrumentalities thus furnished. 3
Other states adhere to various combinations and adaptations of the
foregoing principles in determining the relations of vice principal
and fellow servant. 4
3 Northern Pac. R. Co. v. Herbert, 116 TJ. S. 650, 6 Sup. Ct. 590; Baltimore
& O. R. Co. v. Baugh, 149 U. S. 3G8, 13 Sup. Ct. 914. See, also, on general
subject of fellow servants and vice principals: Locomotive engineer not a fellow
servant of hostler's helper engaged in switching engines in the railroad yard.
Atchison, T. & S. F. R. Co. v. Mulligan, 14 C. C. A. 547, 67 Fed. 569. The
duty of opening and closing a switch in the ordinary operation of a railroad
is not one of the personal duties of the master. St. Louis, I. M. & S. Ry.
Co. v. Xeedham, 11 C. C. A. 56, 63 Fed. 107. An engineer in temporary
charge of a train cannot waive a rule prohibiting coupling, etc., without a
stick. Richmond & D. R. Co. v. Finley, 12 C. C. A. 595, 63 Fed. 228. A
telegraph operator and an engineer of train on same road are fellow servants,
Baltimore & O. R. Co. v. Camp. 13 C. C. A. 233, 65 Fed. 952; but a train
dispatcher is not a fellow servant of an engineer of a train on his division,
Baltimore & O. R. Co. v. Camp, supra; Clyde v. Railroad Co., 69 Fed. 673;
nor is a car inspector a fellow servant of a brakeman, Atchison, T. & S. F.
R. Co. v. Myers, 11 C. C. A. 439, 63 Fed. 793; Terre Haute & I. R. Co. v.
Mansberger, 12 C. C. A. 574, 65 Fed. 196. Section men and laborers on repair
trains are fellow servants, and employer is not liable to one for injuries
caused by negligence of another, though such other has control over a gang
of men. Thorn v. Pittard, 10 C. C. A. 352, 62 Fed. 232. Negligence of con-
ductor in transmitting order of train master to yard master, whereby brake-
man was injured, is the negligence of fellow servant. Martin v. Railway
Co., 65 Fed. 384. Mine inspector not fellow servant of miner. Gowen v.
Bush, 22 C. C. A. 196, 76 Fed. 349. Mate of vessel not fellow servant of
workman on wharf. Hermann v. Mill Co., 71 Fed. 853. Engine hostler and
car accountant not fellow servants. Northern Pac. R. Co. v. Craft, 16 C. O.
A. 175, 69 Fed. 124. Section foreman and section hands are fellow servants.
Northern Pac. R. Co. v. Charless, 162 U. S. 359, 16 Sup. Ct. 848. Foreman
in charge, and personally assisting laborers, a fellow servant. Coulson v.
Leonard, 77 Fed. 538.
* ALABAMA: Smoot v. Railroad Co., 67 Ala. 13; Mobile & O. R. Co. v.
Thomas, 42 Ala. 672; Mobile & M. R. Co. v. Smith, 59 Ala. 245; Tyson v.
Railroad Co., 61 Ala. 554; Mobile & O. R. Co. v. George, 94 Ala. 199, 10 South.
145; Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262;
Alabama G. S. R. Co. v.- Davis (Ala.) 24 South. 862; Buckalew v. Railroad
Co., 112 Ala. 146, 20 South. 606; Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193,
22 South. 854. ARIZONA: Hobson v. Railroad Co., 11 Pac. 545; South-
ern Pac. Co. v. McGill, 44 Pac. 302. ARKANSAS: St. Louis, I. M. & S. Ry.
BAR.NEG. 10
146 LIABILITY OF MASTER TO SERVANT. (Ch. 3
CONCURRENT AND CONTRIBUTORY NEGLIGENCE.
65. Although the servant assumes the risk of the negli-
gence of his fellow servants, he does not assume
that of his master; and, if the master's negligence
concurs -with that of a fellow servant to produce
the injury complained of, the servant may recover
therefor, provided the servant's own negligence does
not proximately contribute to the injurious result.
Co. v. Rice, 51 Ark. 467, 11 S. W. 699; St. Louis, I. M. & S. Ry. Co. v. Gaines,
46 Ark. 555; Bloyd v. Railway Co., 58 Ark. 66, 22 S. W. 1089; St. Louis S. W.
Ry. Co. v. Henson, 61 Ark. 302, 32 S. W. 1079; Hunter v. Bridge, 29 C. C.
A. 206, 85 Fed. 379; St. Louis, I. M. & S. Ry. Co. v. Rickman, 45 S. W. 56.
CALIFORNIA: Civ. Code, 1970; McLean v. Mining Co., 51 Cal. 255; McKune
v. Railroad Co., 66 Cal. 302, 5 Pac. 482; Beeson v. Mining Co., 57 Cal. 20;
Stephens v. Doe, 73 Cal. 27, 14 Pac. 378, approving McLean v. Mining Co.,
supra; Trask v. Railroad Co., 63 Cal. 96; Bums v. Sennett, 44 Pac. 1068;
Foley v. Horseshoe Co., 115 Cal. 184, 47 Pac. 42; Donnelly v. Bridge Co.,
117 Cal. 417, 49 Pac. 559. COLORADO: Wells v. Coe, 9 Colo. 159, 11 Pac. 50;
Orman v. Mannix, 17 Colo. 564, 30 Pac. 1037. The principle of the "Ross
Case" is approved in the following: Colorado M. Ry. Co. v. Naylon, 17
Colo. 501, 30 Pac. 249; Denver, S. P. & P. R. Co. v. Discoll, 12 Colo. 520, 21
Pac. 708; Grant v. Varney, 21 Colo. 329, 40 Pac. 771; Colorado Coal & Iron
Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251; Denver Tramway Co. v. O'Brien, 8
Colo. App. 74, 44 Pac. 766. CONNECTICUT: Darrigan v. Railroad Co., 52 Conn.
285; Wilson v. Linen Co., 50 Conn. 433; McElligott v. Randolph, 61 Conn.
157, 22 Atl. 1094; Sullivan v. Railroad Co., 62 Conn. 209, 25 Atl. 711. DELA-
WARE: Foster v. Pusey, 8 Houst. 168, 14 Atl. 545; Wheatley v. Railroad
Co., 1 Marv. 305, 30 Atl. 660. FLORIDA: Parrish v. Railroad Co., 28 Fla. 251,
9 South. 696. GEORGIA: Code 1882, 2083, 2202, 3036; Baker v. Rail-
road Co., 68 Ga. 699; Western & A. R. Co. v. Adams, 55 Ga. 279; Keith
v. Coal Co., 81 Ga. 49, 7 S. E. 166; McGovern v. Manufacturing Co., 80 Ga.
227, 5 S. E. 492; Augusta Factory v. Barnes, 72 Ga. 217; Central R. Co.
v. De Bray, 71 Ga. 406; Atlanta Cotton Factory Co. v. Speer, 69 Ga. 137;
Georgia Railroad & Banking Co. v. Miller, 90 Ga. 571, 16 S. E. 939; Gates v.
Itner, 104 Ga. 679, 30 S. E. 884; Boswell v. Barnhart, 96 Ga, 521, 23 S. E.
414; Taylor v. Marble Co., 99 Ga. 512, 27 S. E. 768; Blackman v. Electric Co.,
102 Ga. 64, 29 S. E. 120. INDIANA: Krueger v. Railway Co., Ill Ind. 51, 11
N. E. 957; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. 380; Indi-
ana Car Co. v. Parker, 100 Ind. 181; Atlas Engine Works v. Randall, Id.
293; Louisville, N. A. & C. Ry. Co. v. Buck, 116 Ind. 566, 19 N. E. 453; Jus-
55) CONCURRENT AND CONTRIBUTORY NEGLIGENCE. 147
It has already been stated that the master cannot avail himself of
the defense of fellow servant, if the negligent employe' causing the
injury had been carelessly or improperly selected or hired, and, fur-
thermore, that this defense cannot be urged whenever the offending
tice v. Pennsylvania Co., 130 Ind. 321, 30 X. E. 303; Clarke v. Same, 132
Ind. 199, 31 X. E. 808 (see, also, cases cited in Bailey, Mast. Liab. p. 279, etc.);
Xeutz v. Coke Co., 139 Ind. 411, 38 N. E. 324, 39 X. E. 147; City of Leb-
anon v. McCoy, 12 Ind. App. 500, 40 N. E. 700; Indiana, I. & I. Ry. Co. v.
Snyder, 140 Ind. 647, 39 N. E. 912; Ohio & M. Ry. Co. v. Stein, 140 Ind. 61,
.39 X. R 24G; Louisville, X. A. & C. Ry. Co. v. Isom, 10 Ind. App. 691, 38
X. E. 423; Hodges v. Wheel Co. (Sup.) 52 X. E. 391; Perigo v. Brewing Co.
(App.) 52 X. E. 462; Peirce v. Oliver, 18 Ind. App. 87, 47 N. R 485; Ameri-
can Telephone & Telegraph Co. v. Bower, 20 Ind. App. 32, 49 N. E. 182;
Louisville, X. A. & C. Ry. Co. v. Heck, 151 Ind. 292, 50 X. R 988. IOWA: The
liability of railways for negligence in their operation is regulated by stat-
ute (Code 1S73, 1307); but the statute has received a rather limited con-
struction as to what constitues the "operation" of a railroad. Stroble v.
Railway Co.. 70 Iowa, 555, 31 X. W. 03; Foley v. Railway Co., 64 Iowa, 644,
21 X. W. 124; Malone v. Railway Co., 65 Iowa, 417, 21 X. W. 756. The
plaintiffs in following cases held to have been engaged in "operating," within
the statute: Schroeder v. Railroad Co., 47 Iowa, 375; McKnight v. Con-
struction Co., 43 Iowa, 406; Frandsen v. Railroad Co., 36 Iowa, 372; Deppe
v. Same, Id. 52; Pyne v. Railroad Co., 54 Iowa, 223, 6 X. W. 281. Other-
wise in the following: Malone v. Railway Co., 65 Iowa, 417, 21 X. W. 756;
Potter v. Railroad Co., 46 Iowa, 399; Foley v. Same, 64 Iowa, 644, 21 X.
W. 124; Luce v. Railway Co., 67 Iowa, 75, 24 X. W. 600; Stroble v. Rail-
way Co., 70 Iowa, 555, 31 X. W. 63. Mere superiority of grade is imma-
terial, Peterson v. Mining Co., 50 Iowa, 673; but a person charged with the
exercise of primary duties represents the master, Brann v. Railroad Co., 53
Iowa, 595, 6 X. W. 5; Theleman v. Moeller, 73 Iowa, 108, 34 X. W. 765;
Hathaway v. Railway Co., 92 Iowa, 337, 60 X. W. 651; Blazenic v. Coal
Co., 102 Iowa, 706, 72 X. W. 292; Fosburg v. Fuel Co., 93 Iowa, 54, 61 X.
W. 400; Hathaway v. Railway Co., 92 Iowa, 337, 60 X. W. 651. KAXSAS:
Hannibal & St. J. Ry. Co. v. Fox, 31 Kan. 586, 3 Pac. 320; Atchison, T. &
S. F. R. Co. v. McKee, 37 Kan. 592, 15 Pac. 484; St. Louis & S. F. Ry. Co.
T. Weaver, 35 Kan. 412, 11 Pac. 408; Missouri Pac. Ry. Co. v. Dwyer, 36
Kan. 58, 12 Pac. 352; Walker v. Gillett, 59 Kan. 214, 52 Pac. 442. KEX-
TUCKY: Louisville & X. R. Co. v. Collins, 2 Duv. 117; Louisville, C. & L. R.
Co. v. Cavens' Adm'r, 9 Bush, 566; Illinois Cent R. Co. v. Hilliard, 37 S.
W. 75; Cincinnati, X. O. & T. P. Ry. Co. v. Palmer, 98 Ky. 382, 33 S. W.
199; Ashland Coal, Iron & Railway Co. v. Wallace's Adm'r, 42 S. W. 744;
Edmondson v. Railway Co., 49 S. W. 200, 448. LOUISIAXA: The Ross Case
followed: Towns v. Railway Co., 37 La. Ann. 632, 55 Am. Rep. 508; Fareu
148 LIABILITY OF MASTER TO SERVANT. (Ch. 3-
employ^ was at the time of the injury engaged in the discharge of a
primary duty owed by the master to all his servants, or was, in other
words, a vice principal; but the true rule is much broader and more
v. Sellers, 39 La. Ann. 1011, 3 South. 363; Mattise v. Manufacturing Co.,
46 La. Ann. 1535, 16 South. 400. MAINE: Doughty v. Log Driving Co.. 70
Me. 143; Shanny v. Androscoggin Mills, 66 Me. 426; Wormell v. Railroad
Co., 79 Me. 397, 10 Atl. 49. MARYLAND: Wonder v. Railroad Co., 32 Md. 411;
Hanrathy v. Railway Co., 46 Md. 280; Yates v. Iron Co., 69 Md. 370, 16
Atl. 280; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338; Norfolk &
W. R. Co. v. Hoover, 79 Md. 253, 29 Atl. 994. MISSISSIPPI: Code 1892, 3559;
New Orleans, J. & G. N. R. Co. v. Hughes, 49 Miss. 258; Howd v. Rail-
road Co., 50 Miss. 178; Illinois Cent. R. Co. v. Jones, 16 South. 300; MIS-
SOURI: Dayharsh v. Railroad Co., 103 Mo. 570, 15 S. W. 554; Miller v. Railway
Co., 109 Mo. 350, 19 S. W. 58; Moore v. Railway Co., 85 Mo. 588; Smith v. Rail-
way Co., 92 Mo. 359, 4 S. W. 129; Foster v. Railway Co., 115 Mo. 165, 21 S. W.
916. Track repairer and engineer are not fellow servants, Schlereth v. Rail-
way Co., 115 Mo. 87, 21 S. W. 1110; but brakeman upon one and fireman
upon another freight train are fellow servants, Relyea v. Railroad Co., 112
Mo. 86, 20 S. W. 480; Sheehan v. Prosser, 55 Mo. App. 569; Musick v.
Packing Co., 58 Mo. App. 322; Jones v. Railway Co., 125 Mo. 666, 28 S. W.
883; Rodney v. Railroad Co., 127 Mo. 676, 28 S. W. 887; Card v. Eddy, 129'
Mo. 510, 28 S. W. 753, 979; Donahoe v. City of Kansas City, 136 Mo. 657,
38 S. W. 571; Bradley v. Railway Co., 138 Mo. 293, 39 S. W. 763. MONTANA:
Regulated by statute. Comp. St. 1888, p. 817, 697. NEBRASKA: Chicago,
St. P., M. & O. Ry. Co. v. Lundstrom, 16 Neb. 254, 20 N. W. 200; Burlington.
& M. R. R. Co. v. Crockett, 19 Neb. 138, 26 N. W. 921; Sioux City & P. R.
Co. v. Smith, 22 Neb. 775, 36 N. W. 285; Chicago, B. & Q. R. Co. v. How-
ard, 45 Neb. 570, 63 N. W. 872; Omaha & R. V. Ry. Co. v. Crow, 54 Neb.
747, 74 N. W. 1066; Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 127, 74 N.
W. 454; Omaha & R. V. Ry. Co. v. Krayenbuhl, 48 Neb. 553, 67 N. W. 447; Un-
ion Pac. R. Co. v. Doyle, 50 Neb. 555, 70 N. W. 43; Clark v. Hughes, 51 Neb.
780, 71 N. W. 776. NEW HAMPSHIRE: Jaques v. Manufacturing Co., 66 N.
H. 482, 22 Atl. 552. NEW JERSEY: Rogers Locomotive & M. Works v. Hand,
50 N. J. Law, 464, 14 Atl. 760; McAndrews v. Burns, 39 N. J. Law, 117;
Ewan v. Lippincott, 47 N. J. Law, 192. The separate department rule does
not obtain, and those engaged in making instrumentalities may well be fel-
low servants of those who are to use them. Rogers Locomotive & M. Works
v. Hand, 50 N. J. Law, 464, 14 Atl. 766; Harrison v. Railway Co., 31 N. J.
Law, 293. Nor does mere superiority of grade affect the relation. O'Brien v.
Dredging Co., 53 N. J. Law, 291, 21 Atl. 324; Hardy v. Railroad Co., 57 N.
J. Law, 505, 31 Atl. 281; Ingebretsen v. Steamship Co. (Err. & App.) 31 Atl.
619. NEW MEXICO: Cerrillos Coal R. Co. v. Deserant, 49 Pac. 807. NORTH
CAROLINA: Ross Case, 112 U. S. 377, 5 Sup. Ct 184, followed; Mason v. Rail-
55) CONCURRENT AND CONTRIBUTORY NEGLIGENCE. 149
comprehensive than this, and it may be stated generally that when-
ever the master has been guilty of the breach of a personal duty to a
road Co., Ill N. C. 482, 16 S. E. 698; Pattern v. Railroad Co., 96 N. C. 455,
1 S. E. 863. Superiority of grade no test. Webb v. Railroad Co., 97 X. C.
387, 2 S. E. 440; Logan v. Railroad Co., 116 N. C. 940, 21 S. E. 959; Shadd v.
Railroad Co., 96 N. C. 968, 21 S. E. 554; Pleasants v. Railroad Co., 121 N.
C. 492, 28 S. E. 267. NORTH DAKOTA: The rule of the federal courts is quite
closely followed. Ell v. Railroad Co., 1 N. D. 336, 48 N. W. 222. Primary
duties cannot be delegated so as to relieve the master of liability. Ell v.
Railroad Co., supra. OREGON: Miller v. Southern Pac. Co., 20 Or. 285, 26
Pac. 70; Carlson v. Railway Co., 21 Or. 450, 28 Pac. 497. Switchman is fel-
low servant of train operatives. Miller v. Southern Pac. Co., 20 Or. 285, 26
Pac. 70. The question of superiority of grade does not appear to be fully
settled. Knahtla v. Railway Co., 21 Or. 136, 27 Pac. 91; Fisher v. Railway
Co., 22 Or. 533, 30 Pac. 429; Mast v. Kern, 54 Pac. 950. RHODE ISLAND:
Separate department rule does not obtain. Brodeur v. Valley Falls Co., 16
R. 1. 448, 17 Atl. 54. Station agent held to be fellow servant of brakeman
injured through negligence of former. Gaffney v. Railroad Co., 15 R. I. 456,
7 Atl. 284, following Brown v. Railway Co., 31 Minn. 553, 18 N. W. 834,
and Hodgkins v. Railroad Co., 119 Mass. 419; Parker v. Railroad Co., 18 R.
I. 773, 30 Atl. 849; Morgridge v. Telephone Co., 39 Atl. 328. SOUTH CAROLINA:
Master is not relieved of responsibility by delegating primary duties. Calvo
v. Railroad Co., 23 S. C. 526; Couch v. Railroad Co., 22 S. a 557; Coleman
v. Railroad Co., 25 S. C. 446. Doctrine of Ross Case is fully indorsed. Boat-
wright v. Railroad Co., 25 S. C. 128; Whaley v. Bartlett, 42 S. C. 454, 20
S. E. 745; Wilson v. Railway Co., 51 S. C. 79, 28 S. E. 91. TENNESSEE: Sep-
arate department theory recognized as to railroads. Nashville & C. R. Co.
v. Carroll, 6 Heisk. 347; Knoxville Iron Co. v. Dobson, 7 Lea, 367. Supe-
riority of grade is, in some degree, a test, Knoxville Iron Co. v. Dobson,
7 Lea, 367; Louisville & N. R. Co. v. Lahr, 86 Tenn. 335, 6 S. W. 663; East
Tennessee & W. N. O. R. Co. v. Collins, 85 Tenn. 227, 1 S. W. 883; a crew
who negligently loaded a car with lumber are fellow servants of those who
operate the train, Louisville & N. R. Co. v. Gower, 85 Tenn. 465, 3 S. W.
824; conductor being in charge of train, engineer is fellow servant of brake-
man, East Tennessee V. & G. Ry. Co. v. Smith, 89 Tenn. 114, 14 S. W. 1077;
and brakemen, brake repairers, and car inspectors are fellow servants, Nash-
ville, C. & St. L. Ry. Co. v. Foster, 10 Lea, 351; Nashville, C. & St. L. R.
Co. v. Gann (Sup.) 47 S. W. 493; National Fertilizer Co. v. Travis (Sup.) 49
S. W. 832; Knox v. Railway Co. (Sup.) 47 S. W. 491. TEXAS: Doctrine not
well settled in this state. International & G. N. Ry. Co. v. Ryan, 82 Tex. 565,
18 S. W. 221; Gulf, C. & S. F. R. Co. v. Wells (Sup.) 16 S. W. 1025; Mis-
souri Pac. Ry. Co. .v. Williams, 75 Tex. 4, 12 S. W. 835; Texas & P. Ry.
Co. v. Reed, 88 Tex. 439, 31 S. W. 1058; San Antonio & A. P. Ry. Co. v.
McDonald (Civ. App.) 31 S. W. 72; San Antonio & A. P. Ry. Co. v. Kel-
150 LIABILITY OF MASTER TO SERVANT. (Ch. 3
servant, whereby injury has resulted, he cannot defend by saying that
the negligence of a fellow servant also contributed to produce the
ler, 11 Tex. Civ. App. 569, 32 S. W. 847; Texas & N. O. Ry. Co. v. Bin-
gle (Civ. App.) 41 S. W. 90; San Antonio & A. P. Ry. Co. v. Taylor (Civ.
App.) 35 S. W. 855; Gulf, C. & S. F. Ry. Co. v. Warner, 89 Tex. 475, 35 S.
W. 364; Southern Pac. Go. v. Ryan (Civ. App.) 29 S. W. 527; International
& G. N. Ry. Co. v. Sipole, id. 686; San Antonio & A. P. Ry. Co. v. Bowles
(Civ. App.) 30 S. W. 89; Same v. Reynolds, Id. 846; Texas & X. O. R. Co.
v. Tatman, 10 Tex. Civ. App. 434, 31 S. W. 333; Gulf, C. & S. F. Ry. Co. v.
Calvert, 11 Tex. Civ. App. 297, 32 S. W. 246; San Antonio & A. P. Ry. Co.
v. Harding, 11 Tex. Civ. App. 497, 33 S. W. 373; Sanner v. Railway Co.
(Civ. App.) 43 S. W. 533; Terrell Compress Co. v. Arrington (Civ. App.) 48
S. W. 59; Houston & T. C. R. Co. v. Patterson, Id. 747; Same v. Stuart, Id.
799. UTAH: Anderson v. Mining Co., 16 Utah, 28, 50 Pac. 815; Dryburg v.
Milling Co., 55 Pac. 367. VERMONT: Respondea.t superior does not apply
where an order is negligently given by a servant in command to an inferior
servant Davis v. Railroad Co., 55 Vt. 84. The master is jealously held to
the performance of his primary duties, the early decision in Hard v. Railroad
Co., 32 Vt. 473, being disapproved. VIRGINIA: Norfolk & W. R. Co. v. Don-
nelly's Adm'r, 88 Va. 853, 14 S. E. 692; Richmond & D. R. Co. v. Norment,
84 Va. 167, 4 S. E. 211; Moon's Adm'r v. Railroad Co., 78 Va. 745; Ayer's
Adm'x v. Railroad Co., 84 Va. 679, 5 S. E. 582; Johnson's Adm'x v. Railroad
Co., 84 Va. 713, 5 S. E. 707; Richmond & D. R. Co. v. Williams, 86 Va. 165 T
9 S. E. 990; Norfolk & W. R. Co. v. Brown, 91 Va. 668, 22 S. E. 496; Mc-
Donald's Adm'r v. Railroad Co., 95 Va. 98, 27 S. E. 821; Norfolk & W. R.
Co. v. Houchins' Adm'r, 95 Va. 398, 28 S. E. 578; Richmond Locomotive
Works v. Ford, 94 Va. 627, 27 S. E. 509; Moore Lime Co. v. Richardson's
Adm'r, 95 Va. 326, 28 S. E. 334. WASHINGTON: Sayward v. Carlson, 1 Wash.
St. 29, 23 Pac. 830; Zintek v. Mill Co., 6 Wash. 178, 32 Pac. 997; Ogle v. Jones,
16 Wash. 319, 47 Pac. 747; McDonough v. Railway Co., 15 Wash. 244, 46
Pac. 334; Bateman v. Railway Co., 54 Pac. 996; Hughes v. Improvement
Co., 55 Pac. 119. WEST VIRGINIA: If the inferior servant is substantially
under the control of the superior, they are not fellow servants. Madden's
Adm'r v. Railroad Co., 28 W. Va. 610. A car checker and engineer operating
switch engine in same yard are fellow servants, Beuhring's Adm'r v. Railway
Co., 37 W. Va. 502, 16 S. E. 435; but brakeman and conductor on different
trains are not fellow servants, Daniel's Adm'r v. Railway Co., 36 W. Va. 397,
15 S. E. 162; Johnson v. Railway Co., 36 W. Va. 73, 14 S. E. 432; Flannegan
v. Railway Co., 40 W. Va. 436, 21 S. E. 1028; Jackson v. Railroad Co., 43
W. Va. 380, 27 S. E. 278, 31 S. E. 258. ' WISCONSIN: The master cannot dele-
gate primary duties so as to escape liability, Brabbits v. Railway Co., 38
Wis. 289; and a suitable place for doing the work must be not only pro-
vided, but properly maintained, Bessex v. Railway Co., 45 Wis. 477; and must
use ordinary care in selection of servants, Heine v. Railway Co., 58 Wis.
55) CONCURRENT AND CONTRIBUTORY NEGLIGENCE. 151
injury. 1 If a machine is defective or improper for the intended use,
the employer is liable for injury to an employe" caused thereby, al-
though the negligence of a fellow servant may have contributed to
the result. 2 If the servant is, however, responsible for the selection
of an improper instrument, other and suitable ones being available,
it follows, as of course, that he cannot recover, as no fault rests on
the master. 3
531, 17 X. W. 420. The Wisconsin doctrine closely follows the New York
rule. On the general subject see Johnson y. Bank, 79 Wis. 414, 48 N. W. 712;
Dwyer v. Express Co., 82 Wis. 307, 52 X. W. 304; McClarney v. Railway
Co., 80 Wis. 277, 49 X. W. 963; Cadden v. Barge Co., 88 Wis. 409, 60 N. W.
800; Eingartner v. Steel Co., 94 Wis. 70, 68 X. W. 664; Smith v. Railway
Co., 91 Wis. 5C3, G5 X. W. 183; Prybilski v. Railway Co., 98 Wis. 413, 74
X. W. 117; Jarnek y. Dock Co., 97 Wis. 537, 73 N. W. 62; McMahon v. Min-
ing Co., 101 Wis. 102, 76 X. W. 1098. WYOMIXG: The few decisions in this
state seem to incline strongly to the rule of the federal court MeBride v.
Railway Co., 3 Wyo. 247, 21 Pac. 687.
55. i Franklin y. Railroad Co., 37 Minn. 409, 34 X. W. 898; Graver v.
Christian. 36 Minn. 413, 31 X. W. 457; Grand Trunk Ry. Co. v. Cummings,
106 U. S. 700, 1 Sup. Ct 493; Stringham v. Stewart, 100 X. Y. 516, 3 X. E. 575;
Elmer y. Locke, 135 Mass. 575; Pullman Palace-Car Co. v. Laack, 143 111. 242, 32
X. E. 2S5; Browning y. Railway Co., 124 Mo. 55, 27 S. W. 644; Denyer & R. G.
R. Co. v. Sipes (Colo. Sup.) 55 Pac. 1093; International & G. N. R. Co. v. Bonatz
(Tex. Civ. App.) 48 S. W. 767; Missouri, K. & T. Ry. Co. of Texas v. Hannig
(Tex. Civ. App.) 49 S. W. 116; Wheatley y. Railroad Co., 1 Mary. 305, 30 Atl.
000; Lago v. Walsh, 98 Wis. 348, 74 X. W. 212; Jensen y. The Joseph B.
Thomas, 81 Fed. 578; Wright v. Southern Pac. Co., 14 Utah, 383, 46 Pac. 374;
Haudley v. Mining Co., 15 Utah, 176, 49 Pac. 295.
2 Young y. Railway Co., 46 Fed. 160, affirmed in 1 C. C. A. 428, 49 Fed.
723. See, also, Rogers v. Leyden, 127 Ind. 50-53, 26 X. E. 210; Richmond
& D. R. Co. v. George, 88 Va. 223, 13 S. E. 429; Xorthwestern Fuel Co. v.
Danielson, 6 C. C. A. 636, 57 Fed. 915-919; Browning y. Railway Co., 124
Mo. 55, 27 S. W. 644; Steinke v. Match Co., 87 Wis. 477, 58 X. W. 842; Frank-
lin v. Railroad Co., 37 Minn. 409, 34 X. W. 898; Gardner y. Railroad Co., 150
U. S. 349, 14 Sup. Ct. 140; Leonard y. Kinnare, 174 111. 532, 51 X. E. 688; In-
ternational & G. X. R. Co. v. Zapp (Tex. Ciy. App.) 49 S. W. 673; Chicago
& X. W. Ry. Co. v. Gillison, 173 111. 264, 50 X. E. 657; Lauter v. Duckworth,
19 Ind. App. 535, 48 X. E. 864; Stucke y. Railroad Co., 50 La. Ann. 172, 23
South. 342; Troxler y. Railway Co., 122 X. C. 902, 30 S. E. 117.
3 Thyng y. Railroad Co., 156 Mass. 13, 30 X. E. 169; Hefferen v. Railroad
Co., 45 Minn. 471, 48 X. W. 1.
152 LIABILITY OF MASTER TO SERVANT. (Ch. 3
SAME SERVANT'S OWN NEGLIGENCE AS PROXIMATtt
CAUSE.
66. In any event the servant cannot recover from the mas-
ter if his own negligence proximately caused the
injury complained of.
In considering the reciprocal duties of master and servant, and the
involved doctrine of fellow servant, it must not be overlooked that the
law of contributory negligence is in no degree abated, and may al-
ways be shown as a complete bar to recovery. Thus, the fact that a
stop block at the end of a trestle was defective will not render the
company liable for the death of an engineer who ran his engine off
the end of the trestle, when the accident was caused by running the
engine at such a rate of speed that no block would have been effect-
ive. 1
56. i Louisville & X. R. Co. v. Stutts, 105 Ala. 368, 17 South. 29; Cen-
tral Railroad & Banking Co. v. Brantley, 93 Ga. 259, 20 S. E. 98; City of
Lebanon v. McCoy, 12 Ind. App. 500, 40 N. E. 700; Nelling v. Railroad Co.,
98 Iowa, 554, 63 N. W. 568, 67 X. W. 404; Light v. Railway Co., 93 Iowa, 83,
61 N. W. 380; Duval v. Hunt, 34 Fla. 85, 15 South. 876. A fireman falling asleep
in the roundhouse with foot on track, Price v. Railroad Co., 77 Mo. 508;
conductor failing to stop his train in time to prevent collision, Chicago & N 1 .
W. R. Co. v. Snyder, 117 111. 376, 7 N. E. 604; Clark v. Railroad Co., 80 Hun,
320, 30 N. Y. Supp. 126; brakeman uncoupling cars contrary to rules, Lock-
wood v. Railway Co., 55 Wis. 50, 12 X. W. 401; Robinson v. Manufacturing
Co., 143 Mass. 528, 10 N. E. 314; Crabell v. Coal Co,, 68 Iowa, 751, 28 X. W.
66.
57) LIABILITY OF MASTER TO THIRD PERSONS. 153
CHAPTER IV.
LIABILITY OF MASTER TO THIRD PERSONS.
57. Nature of Master's Liability.
58. Relationship.
59-60. Independent Contractor.
61. Reasonable Care in Selection of Contractor.
62. Liability When the Object of the Contract is Unlawful.
63. Absolute Personal Duties.
64. Willful Torts of Servants.
65. Torts Outside Scope of Employment.
66. Independent Torts.
NATURE OF MASTER'S LIABILITY.
57. The master is liable for the negligence of his servant
occurring -within the course of his employment;
but not
(a) When the negligence concerns matters foreign to the
general business; nor
(b) When the business is transacted by an independent
contractor.
The liability of the master to third persons for the negligent or
wrongful acts of those in his employment is based on the broad prin-
ciple of the general security of society and business. As every one
is responsible for the results of his own negligence, a person may not
devest himself of liability by deputizing another to act for him, and
then disclaiming the consequence of his acts, if they result in injury
to the person, property, or reputation of another. In the early case
of Quarman v. Burnett, 1 Parke, B., was of the opinion that he was
properly held liable "who selected him as his servant, from the knowl-
edge of, or belief in, his skill and care, and who could remove him for
misconduct, and whose orders he was bound to receive and obey."
57. 16 Mees. & W. 499. See, also, Hern v. Nichols, 1 Salk. 289. And in
Lane v. Cotton, 12 Mod. 473, the liability of the master for injuries inflicted
by his servant on a stranger was placed on the ground that the stranger had
had no hand in selecting the servant.
154 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4
Thus, where a servant was ordered to shovel snow from a roof, his-
master was held liable to a third person for his carelessness in per-
forming the work. 2
And the broad principle of this rule of law cannot be narrowed or
thwarted by permitting the master to plead that the servant was act-
ing contrary to specific instructions or outside the definite bounds of
his authority. To permit this defense would be to abrogate the doc-
trine of respondeat superior. And so, where the defendants sent their
servant to make a test of a boiler under a pressure not to exceed 150
pounds, and he, acting partly on the request of the purchaser and
partly on his own judgment, raised the pressure to 198 pounds, and
then held down the lever of the safety valve so that the boiler ex-
ploded and injured a passer-by, it was held that, although the servant's-
action was foolhardy and contrary to express instructions, it was-
nevertheless committed within the scope of defendants' business, and
they were liable. 3 Although a strict enforcement of the rule fre-
quently appears to work a hardship on one who has used every pre-
caution in the choice of his servants, it is, nevertheless, so generally
ingrafted in the conduct of all lines of business and society that the
importance of its maintenance can hardly be overestimated. 4
2 Althorf v. "Wolfe, 22 N. Y. 355; where a driver in defendant's employ-
ment carelessly ran over plaintiff, a pedestrian, Groth v. Washburn, 89 N. Y.
615; where an apprentice borrowed his employer's team to take a ride, and
carelessly injured plaintiff, Sherwood v. Fischer, 3 Hun (N. Y.) 606.
3 Ochsenbein v. Shapley, 85 N. Y. 214; and where wheat was consigned to-
Albany, and the master of the boat, on reaching that point, was directed by
consignees to proceed to a point further on, before reaching which the cargo-
was injured, Gibbs v. Van Buren, 48 N. Y. 661; Quinn v. Power, 87 N. Y. 535.
The doctrine of "particular command," as a test of the master's liability, was
in force in the time of Edward I., and is thus stated by Bacon: "In commit-
ting of lawful authority to another, a party may limit it as strictly as it
pleaseth him; and if the party authorized do transgress his authority, though
it be but in circumstance expressed, yet it shall be void in the whole act."
Bac. Max. 16. See, also, Jag. Torts, p. 249.
* The historic origin of the rule is uncertain, but is ascribed by Chancellor
Kent to the Roman law. "The true explanation of the doctrine seems to be
historical, dating back to the period of the Roman law, when servants were
slaves, for whom paterfamilias was responsible as part of his general responsi-
bility for the family which he represented and governed." 2 Kent, Comnu
U-th Ed.) 260, note 1.
58) RELATIONSHIP. 155
RELATIONSHIP.
58. To establish the master's liability, it is essential
(a) That the relation of principal and agent exist at the
time of the wrongful act.
(b) That the -wrongful act be committed fairly within
the scope of the general business for -which the serv-
ant is engaged.
The relationship may be the result of definite agreement or may be
inferable from the circumstances of a given case, but its establish-
ment by some means is a sine qua non to the application of the doc-
trine of respondeat superior. 1 And, when the privity is destroyed, it
follows, as a corollary, that the responsibility of the master termi-
nates. 2 And if one knowingly and customarily avails himself of the
services of another, although he has not employed him and does not
pay him, he will be liable as an employer for his negligence in the
business in which he serves him. Thus, where the defendant rail-
road used the roundhouse of another company, and a servant of the
latter was accustomed to bring defendant's engines out when re-
quired, while so engaged he was held to be in the service of the de-
fendant, which w r as liable for his negligence while so employed. 3
The cases are somewhat conflicting and unsatisfactory in defining
the employer's liability when the injury is caused by the negligence
of one employed by a servant without the authority, sanction, or
knowledge of the master. In at least some of the cases ordinarily
cited to affirm the master's liability in such circumstances, examina-
tion discloses that a quasi custom or quasi knowledge was established
58. i Thorpe v. Railroad Co., 7G X. Y. 402; Dwinelle v. Same, 120 N. Y.
117, 24 N. E. 319; Pennsylvania Co. v. Roy, 102 U. S. 451; Wood v. Cobb, 13
Allen (Mass.) 58; Kimball v. Cushman, 103 Mass. 194; Ward v. Fibre Co., 154
Mass. 419, 28 N. E. 299; Welsh v. Parrish, 148 Pa. St. 599, 24 Atl. 86; Cor-
coran v. Railroad Co., 6 C. C. A. 231, 56 Fed. 1014.
2 A discharged employ*} maliciously misplaced a switch. East Tennessee,
V. & G. R. Co. v. Kane, 92 Ga. 187, 18 S. E. 18; Illinois Cent. R. Co. v.
Andrews, 78 111. App. 80; Healey v. Lothrop, 171 Mass. 263, 50 N. E. 540.
s Missouri, K. & T. Ry. Co. v. McGlamory (Tex. Civ. App.) 34 S. W. 359;
Denver & R. G. R. Co. v. Gustafson. 21 Colo. 393, 41 Pac. 505; Wellman y.
Miner, 19 Misc. Rep. 644, 44 X. Y. Supp. 417.
156 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4
by the evidence, 4 while in a few instances the liability is unqualifiedly
asserted 5 or denied. 6 If the injury is caused by the impertinent inter-
ference of a stranger, without the request or consent of the servant,
it is evident that the master cannot be held responsible. 7
While in many cases the existence of the relationship is undisputed,
it frequently happens that some difficulty is experienced in determin-
ing the proper person to be charged with liability as master. In
such cases, reference must be had to the contract of service as well as
to the particular circumstances. When a contractor let his servant
and team to the city by the day, although it appeared that he was
under the exclusive control of the city, his master was nevertheless
held liable for damages caused by the horse kicking a loose shoe
through an adjacent window while his driver was beating him. 8 In
determining who is the master, the question of choice or selection of
the servant is important, although not decisive. 9 The master, in
hiring out his servant, may so completely part with his authority and
control over him as to be released from the responsibility, which is
thereby shifted to his immediate employer. 10 The matter of selec-
* Gleason v. Amsdell, 9 Daly (N. Y.) 393; Simons v. Monier, 29 Barb. (N. Y.)
419.
5 Suydam v. Moore, 8 Barb. (N. Y.) 358; Althorf v. Wolfe, 22 N. Y. 355;
Ryan v. Boiler Works, 68 Mo. App. 148; Sinaltz v. Boyce, 109 Mich. 382,
69 N. W. 21; Booth v. Mister, 7 Car. & P. 66.
e Jewell v. Railway Co., 55 N. H. 84.
t Edwards v. Jones, 67 How. Prac. 177.
s Huff v. Ford, 126 Mass. 24; Quinn v. Construction Co., 46 Fed. 506. See,
also, Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381; Colvin v. Peabody, 155
Mass. 104, 29 N. E. 59. And, in a contract to manufacture and ship goods,
the designation of a certain person to care for the goods does not make him
an agent of both parties, so as to relieve the shipper from liability for his
negligence or incompetency. Paige v. Roeding, 96 Cal. 388, 31 Pac. 264.
A person employed by master's servant without his knowledge or author-
ity is not his servant, Mangan v. Foley, 33 Mo. App. 250; and the person so
employed assumes the risks of his employment, Blair v. Railroad Co., 60 Mich.
124, 26 N. W. 855; Jewell v. Railway Co., 55 X. H. 84; Gahagan v. Aermoter
Co., 67 Minn. 252, 69 N. W. 914; Hess v. Mining Co., 178 Pa. St. 239, 35 Atl.
990.
10 Brown v. Smith, 86 Ga. 274, 12 S. E. 411; Burke v. De Castro, 11 Hun
<N. Y.) 354; Sweeny v. Murphy, 32 La. Ann. 628; McCauley v. Casualty Co.,
16 Misc. Rep. 574, 38 N. Y. Supp. 773; Buckingham v. Vincent, 23 App. Div.
238, 48 N. Y. Supp. 747.
58) RELATIONSHIP.
tion is but one element to be considered in the determination of the
question. It is necessary to go further, and ascertain who was in
the exercise of full control and supervision of his movements at the
time of the misconduct, and especially whose interest and will he
represented and in whose place he stood. 11
This brings us to the consideration of the relation which exists in
a well-defined class of cases where the owner hires or leases some
specific piece of property, as a team, a boat, or an engine, and fur-
nishes servants to operate or care for it. In such cases, the lessee
acquires a limited authority or control over such servants, but it i&
directed only to results, not to the means or the manner of the accom-
plishment, and they are, almost uniformly, held to remain the serv-
ants of the lessor, who is responsible for their negligence. Thus, a
stevedore, undertaking to unload a ship at defendants' dock, leased
from defendants, for the purpose of handling the cargo, a portable
engine, with engineer and power to operate it. Through the care-
lessness of the engineer in lowering a "sling" of boxes, plaintiff was
injured, and defendants were held liable as masters. 12
It is very evident that, for all torts committed at his express direc-
tion, or which he has subsequently assented to, the master is liable;
as if the master directs his servant to perpetrate a fraud, maintain
a nuisance, commit a trespass, or convert to his own use the property
of another. 13 When these torts are the direct result of deliberate
11 Corbin v. American Mills, 27 Conn. 274; Wyllie v. Palmer, 137 N. Y.
248, 33 X. E. 381; Paige v. Roeding, 96 Cal. 388, 31 Pac. 264; Quinn v. Con-
struction Co., 46 Fed. 506; Higgins v. Telegraph Co., 8 Misc. Rep. 433, 28
N. Y. Supp. 676. In fixing the responsibility for the negligence where the
injury occurred in the management or use of some specific piece of property,
as a vehicle or machine, it is sufficient, prima facie, to prove the ownership,
the presumption arising that the owner exercised control of his property.
Xorris v. Kohler, 41 N. Y. 42; McCoun v. Railroad Co., 66 Barb. (N. Y.) 338;
Joyce v. Capel, 8 Car. & P. 370.
12 Coyle v. Pierrepont, 37 Hun (N. Y.) 379, overruling 33 Hun (N. Y.) 311;
Currier v. Henderson, 85 Hun, 300, 32 N. Y. Supp. 953; Byrne v. Railroad:
Co., 9 C. C. A. 666, 61 Fed. 605; Crockett v. Calvert, 8 Ind. 127; Ames v. Jor-
dan, 71 Me. 540; Union Steamship Co. v. Claridge, 6 Reports, 434; Id. [1894],
App. Cas. 185; Dalyell v. Tyrer, El., Bl. & El. 899. But see, per contra, Burke
v. De Castro, 11 Hun (X. Y.) 354; Thiry v. Malting Co., 37 App. Div. 391, 56
X. Y. Supp. 85; Samullian v. Machine Co., 168 Mass. 12, 46 X. E. 98.
is Southerne v. Howe, 2 Rolle, 5-26; State v. Smith, 78 Me. 260, 4 Atl. 412;.
158 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4
intention on the master's part, he is chargeable with responsibility in
a like degree as if he had performed the acts in person. The doc-
trine of identification of master and servant is exemplified. And the
ratification by the master of his servant's torts rests on the same prin-
ciple. 14
A servant is hired to assist in the prosecution and furtherance of
his master's business, and, to make the master liable for his negligent
act, it must be committed in the line of the general employment. 15
If the act is foreign to the purpose for which he was hired, or occurs
in the transaction of a matter not reasonably incident to the business,
the employer is not responsible. 16 Thus, where a boy was invited by
defendant's teamster to ride on the dump cart which he was driving,
and by request took the reins, the driver going to sleep, and fell off
and was injured, it was held that defendant was not liable, as the
invitation of the teamster was outside the scope of his employment. 17
Ketcham v. Newman (1894) 141 N. Y. 205, 36 N. E. 197; Carman v. Railroad
Co., 4 Ohio St. 399; Hobdy v. Margotto, 4 Lack. Leg. News, 17; Little Rock
Traction & Electric Co. v. Walker (Ark.) 45 S. W. 57; Robinson v. Railway
Co., 94 Wis. 345, 68 N. W. 961.
i* International & G. N. Ry. Co. v. Miller, 9 Tex. Civ. App. 104, 28 S. W.
233; Fletcher v. Railroad Co., 168 U. S. 135, 18 Sup. Ct. 35; East St. Louis
Connecting Ry. Co. v. Reames, 173 111. 582, 51 N. E. 68; Eagle Const. Co. v.
Wabash R. Co., 71 Mo. App. 626; Stranahan Bros. Catering Co. v. Coit,
55 Ohio St. 398. 45 N. E. 634.
IB Lovingston v. Bauchens, 34 111. App. 544; Osborne v. McMasters, 40
Minn. 103, 41 N. W. 543; Tuel v. Weston, 47 Vt. 634; Singer Mfg. Co. v.
Rahn, 132 U. S. 518, 10 Sup. Ct. 175; Camp v. Hall, 39 Fla. 535, 22 South.
792; Clack v. Supply Co., 72 Mo. App. 506; Todd v. Havlin, Id. 565; Knowles v.
Bullene, 71 Mo. App. 341; McDonald v. Franchere, 102 Iowa, 496, 71 N. W.
427; Holmes v. Railroad Co., 49 La. Ann. 1465, 22 South. 403; Gray v. Rail-
road Co., 168 Mass. 20, 46 N. E. 397.
is Brown v. Engineering Co., 166 Mass. 75, 43 N. E. 1118; Hartman v.
Muelbach, 2 Mo. App. Rep'r, 956; Illinois Cent. R. Co. v. Andrews, 78 111.
App. 80; Penny v. Railroad Co., 34 App. Div. 10, 53 N. Y. Supp. 1043; Rob-
inson v. McNeill, 18 Wash. 163, 51 Pac. 355; Barabasz v. Kabat, 86 Md. 23,
37 Atl. 720; International & G. N. R. Co. v. Yarbrough (Tex. Civ. App.) 39
S. W. 1096; Winkler v. Fisher, 95 Wis. 355, 70 N. W. 477; Rudgeair v. Trac-
tion Co., 180 Pa. St. 333, 36 Atl. 859.
IT Driscoll v. Scanlon, 165 Mass. 348, 43 N. E. 100. Also, where an en-
gineer, intending a joke, squirted hot instead of cold water on plaintiff, whom
he had invited to ride in the engine. International & G. N. R. Co. v. Cooper,
88 Tex. 607, 32 S. W. 517.
58) RELATIONSHIP. 159
But mere deviation from instructions, 18 or mistake in judgment, 19 or
slight excess of authority, 20 is not sufficient to relieve the master
from responsibility.
Keceivers of railroads and other corporations are responsible, to
the extent of the trust funds or assets, for the negligence of those em-
ployed by them to carry on the business; 21 and trustees and others
occupying fiduciary positions are likewise accountable for the conduct
of their assistants and employe's. But in certain cases, where the
hiring of the servant is compulsory, the employe" does not become an
agent so as to render the employer accountable for his negligence or
misconduct, unless the employer is permitted to some extent to exer-
cise a choice in the matter of his selection. Such an instance is
found in the compulsory acceptance of the first pilot to board an in-
coming vessel within certain distance limitations. 22 In like manner,
a receiver appointed in involuntary proceedings is not a servant of
the corporation so as to render it responsible for his own negligence
or that of the servants whom he employs to assist him in the manage-
ment of the business. 23
Negligence Leading to Willful Injury.
It not infrequently happens that a servant, by mere carelessness,
places himself in a position where he cannot escape or protect his
master's property without committing deliberate injury to the person
or property of another. In these circumstances, although he has no
authority to commit a willful tort, a proper regard for the interest of
his master raises an implied authority to commit the wrongful act;
is Postal Telegraph Cable Co. v. Brantley, 107 Ala. 683, 18 South. 321; Pow-
ell v. Deveney, 3 Gush. (Mass.) 300; Com. v. New York, N. H. & H. R, Co., 112
Mass. 412.
19 Eichengreen v. Railroad Co., 96 Term. 229, 34 S. W. 219.
20 Brevig v. Railway Co., 64 Minn. 168, 66 N. W. 401. Or when the au-
thority is subsequently ratified. Denipsey v. Chambers, 154 Mass. 330, 28 X.
E. 279.
*i Murphy v. Holbrook, 20 Ohio St. 137; Dalton v. Receivers, 4 Hughes,
180, Fed. Cas. No. 3,550.
22 General Steam Nav. Co. v. British & C. S. Xav. Co., L. R. 3 Exch. 330.
But see Fletcher v. Braddick, 2 Bos. & P. (N. R.) 182. But otherwise when
the master can exercise an option. Martin v. Temperley, 4 Q. B. 298; Yates
v. Brown, 8 Pick. (Mass.) 23.
23 Metz v. Railroad Co., 58 N. Y. 61.
160 LIABILITY OF MASTER TO THIRD PERSJX3. (Ch. 4
as if the servant drive his master's team so carelessly that he arrives,
at a position from which he can extricate himself and team in nc*
other way than by deliberately driving into plaintiff's horse and
wagon. 2 *
INDEPENDENT CONTRACTOR.
59. An independent contractor is one who, exercising
own volition and judgment as to means and meth-
ods, undertakes to achieve a definite result.
60. The employer is not responsible for the negligence of
the independent contractor or his subagents while
the work is in progress, unless
(a) He is negligent in the selection of the contractor; or
unless
(b) The object of the contract is unlawful; or unless
(c) He has omitted to perform an absolute, personal
duty.
As a general proposition, it may be said that the liability of the
master for torts committed by his servants is based on the theory
of selection and control, either actual or implied; that he may
choose who shall do his work, direct how it shall be accomplished,
and retain or discharge the workmen, at his option; and, as has al-
ready been stated, if these essential principles of agency are lacking r
the doctrine of respondeat superior does not apply. If I send my
horse to the smith to be shod, although he and his helpers do my
work, it is evident that they are not my "servants," within the ac-
cepted legal sense of the word, and that I am not responsible for any
injury that may come to others through their negligent manner of
doing my work; and, if I engage a carpenter to make and deliver to-
me a box of certain dimensions, it is still quite clear that I cannot be
compelled to respond in damages for his carelessness in executing my
order. In each of these cases the contract is for a specific thing.
If the horse is returned properly shod, or the box finished according
to specifications, it is immaterial where, how, or by whom the actual
work is done. Those are intermediate considerations, over which the
24 Wolfe v. Mersereau, 4 Duer (N. Y.) 473; Price v. Simon (X. J. Sup.) 4O
Atl. G89.
59-60) INDEPENDENT CONTRACTOR. 161
employer exercises neither volition nor control. In such conditions
the person so undertaking to achieve a certain result, free from dicta-
tion or interference, is called, for purposes of convenience, an inde-
pendent contractor. 1
If the work has been completed and accepted by the employer, his
immunity from responsibility for any dangerous elements that it
may contain ceases, and his liability is determined by the rules of law
ordinarily applicable to the breach of the duties of ownership and con-
trol. 2 Likewise, if the contractor abandons the work. 3 And if the
employer interferes with the performance of the work, or assumes to
assist therein, he may thereby incur liability. 4 If the employer re-
59--60. i Spoue v. Hemmingway, 14 Pick. (Mass.) 1; Singer Mfg. Co.
v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175; Waters v. Fuel Co., 52 Minn. 474,
55 X. W. 52; Powell v. Construction Co., 88 Tenn. 692, 13 S. W. 691; Law-
rence v. Shiprnan, 39 Conn. 586; Crenshaw v. Ulhnan, 113 Mo. 633, 20 S.
W. 1077; Cuff v. Railroad Co., 35 N. J. Law, 17; Long v. Moon, 107 Mo. 334 r
17 S. W. 810; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Scarborough
v. Railway Co., 94 Ala. 497, 10 South. 316; Hawver v. Whalen, 49 Ohio St.
69, 29 N. E. 1049; Charlebois v. Railroad Co., 91 Mich. 59, 51 N. W. 812;
City & S. Ry. Co. v. Moores, 80 Md. 348, 30 Atl. 643; Harris v. McNamara,
97 Ala. 181, 12 South. 103; Savannah & W. R. Co. v. Phillips, 90 Ga. 829, 17
S. E. 82; Welsh v. Parrish, 148 Pa. St. 599, 24 Atl. 86; Haley v. Lumber
Co., 81 Wis. 412, 51 N. W. 321, 956; New Albany Forge & Rolling Mill v.
Cooper, 131 Ind. 363, 30 N. E. 294; Piette v. Brewing Co., 91 Mich. 605, 52
N. W. 152. As to relation of tenant, as independent contractor, to his land-
lord, see Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421; City of Independence
v. Slack, 134 Mo. 66, 34 S. W. 1094; Frassi v. McDonald, 122 Cal. 400, 55
Pac. 139, 772; McXamee v. Hunt, 30 C. C. A. 653, 87 Fed. 298; Jefferson v,
Jameson & Morse Co., 165 111. 138, 46 N. E. 272; Leavitt v. Railroad Co., 8d
Me. 509, 36 Atl. 998; Drennan v. Smith, 115 Ala. 396, 22 South. 442; Roswell
v. Prior, 12 Mod. 635; Cheetham v. Hampson, 4 Term R. 318; Leslie v.
Pounds, 4 Taunt. 649. A question for the court. Emmerson v. Fay, 94 Va.
60, 26 S. E. 386.
2 Donovan v. Transit Co., 102 Cal. 245, 36 Pac. 517; Read v. Fire District
(R. I.) 40 Atl. 760.
a Savannah & W. R. Co. v. Phillips, 90 Ga. 829, 17 S. E. 82.
* Burgess v. Gray, 1 Man., G. & S. 578; Fisher v. Rankin, 78 Hun, 407,
29 N. Y. Supp. 143; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn.
495, 28 Atl. 32; Woodman v. Railroad Co., 149 Mass. 335, 21 N. E. 482; King
v. Railroad Oo., 66 N. Y. 181; Eaton v. Railway Co., 59 Me. 520, 532, 534;
Clark v. Fry, 8 Ohio St. 358; Robinson v. Webb, 11 Bush (Ky.) 464; Hushes
v. Railway Co., 39 Ohio St. 461; Chicago Economic Fuel Gas Co. v. Myers,
BAR.NEG 11
162 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4
serves the right of dismissing the contractor, such reservation is
merely an element to be considered in determining whether, viewing
the contract as a whole, the relation of independent contractor ex-
isted. 5
SAME REASONABLE CARE IN SELECTION OP
CONTRACTOR.
61. The master may be responsible for the negligent con-
duct of an independent contractor, if he has failed
to use reasonable care in selecting him.
It is quite evident that the employer may be guilty of negligence in
intrusting the work to an unskilled or incompetent person, and in
such event he is liable for resulting injury. 1 Difficulty arises, how-
ever, in determining what degree of care in the selection is sufficient
to exonerate the employer from the charge of negligence, and the
cases afford no satisfactory rule. It would seem that each case must
be decided upon its own circumstances, the character of the work,
and the corresponding degree of skill required in its accomplishment,
the probable attendant dangers, and the general reputation of the
contractor for skill and efficiency. 2
168 111. 139, 48 N. E. 66. But see Weber v. Railway Co., 20 App. Div. 292, 47
N. Y. Supp. 7; Burke v. Ireland, 26 App. Div. 487. 50 N. Y. Supp. 369; Bohrer
v. Harness Co., 19 Ind. App. 489, 45 N. E. 668.
B Morgan v. Bowman, 22 Mo. 538; City of Chicago v. Joney, 60 111. 383;
New Albany Forge & Rolling Mill v. Cooper, 131 Ind. 363, 30 N. E. 294; Bayer
v. Railroad Co., 68 111. App. 219.
61. iBerg v. Parsons, 84 Hun, 60, 31 N. Y. Supp. 1091; Xorwalk Gas-
light Co. r. Borough of Xorwalk, 63 Conn. 495, 28 Atl. 32. See, also, Ardesco
Oil Co. v. Gilson, 63 Pa. St. 146; Sturges v. Society, 130 Mass. 414; Bran-
nock v. Elmore, 114 Mo. 55, 21 S. W. 451; Cuff v. Railroad Co., 35 N. J. La\v,
17; Conners v. Hennessey, 112 Mass. 96.
2 See "Negligence of Master in Selecting Competent Co-employes," ante, p. 97.
In an action to recover damages for defendant's want of care in employing an
incompetent contractor to blast stone near plaintiff's house, the evidence does
not show that defendant made sufficient inquiries as to the contractor's com-
petency, where it appears that he inquired only of a lawyer's clerk, and that
he claimed to have seen some work that the contractor had done reasonably
well, it not appearing that defendant was informed that the contractor had
ever done any work of the kind for which defendant had employed him.
Berg v. Parsons, 84 Hun, GO, 31 N. Y. Supp. 1091.
63) ABSOLUTE PERSONAL DUTIES. 163
SAME LIABILITY WHEN THE OBJECT OF THE CONTRACT
IS UNLAWFUL.
62. When the thing contracted to be done is tortious or
unlawful, merely doing it by another person, under
any form of contract, will not relieve the employer
from responsibility. 1
Thus, when a company, without the necessary municipal authority,
employed a contractor to open trenches in the streets of a city, and a
person was injured by falling over a heap of stones left by the con-
tractor, the company was liable for the contractor's unlawful act. 2
Or, if the contract in its purview contemplates an act necessarily
injurious to the rights or property of another, the contractee is liable
ior resulting damage; as where a canal company contracted for the
repair of its canal with soil to be taken from certain land belonging to
.another, the removal of which was, of necessity, injurious to the stran-
.ger's property. 3
SAME ABSOLUTE PERSONAL DUTIES.
63. The employer cannot avoid responsibility for the neg-
ligent conduct of his contractor
(a) Where a positive duty is imposed by contract or
general law.
(b) Where an obligation is imposed by statute.
(c) Where the work to be done is intrinsically danger-
ous.
62. i Ellis v. Gas Consumers' Co., 23 Law J. Q. B. 42; Blessington v.
City of Boston, 153 Mass. 409, 26 N. E. 1133; Sturges v. Society, 130 Mass.
414; Curtis v. Kiley, 153 Mass. 123, 26 X. E. 421; Woodman v. Railroad Co.,
149 Mass. 335, 21 X. E. 482; Babbage v. Powers, 130 X. Y. 281, 29 X. E. 132.
When the main act is lawful, and the contractor incidentally commits an un-
lawful act, the employer is not liable. Wilson v. White, 71 Ga. 506.
2 Ellis v. Gas Consumers' Co., 23 Law J. Q. B. 42, 2 El. & Bl. 767.
3 \Villiams v. Irrigation Co., 96 Cal. 14, 30 Pac. 961; Crenshaw v. Ulltnan,
113 Mo. 633, 20 S. W. 1077.
164 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4
Positive General Duty.
While, in the large majority of cases, there is no reason, founded
on public policy or on the relations of the parties, why the employer
should be liable to third parties for the negligence of the contractor,
there are nevertheless certain duties of so grave a nature that the
responsibility for their performance cannot be avoided by delegation.
Where a person is bound to perform an act as a duty, or is held to-
a certain standard of conduct, he cannot escape responsibility by in-
trusting its performance to another; and if the person so intrusted
fails to perform such act, or conform to such standard of conduct,
whether he bore the relation of contractor or servant, the person on
whom the duty rests is liable for his negligence, and it is immaterial
whether the obligation is imposed by contract or general law. 1 Thus,
the duty rests on a municipal corporation to keep its streets in a safe
and passable condition, and where a contractor with the city failed.
to place proper guards about an excavation, thereby causing injury
to a passer-by, the city was held liable. 2 And, in an action against
a railroad company by a passenger for injuries resulting from an ob-
struction of the track by work being done thereon, it is no defense
that defendant had placed the work in the hands of an independent
contractor, and that his negligence had caused the obstruction. 3 It
is a precept of law that, when the performance of a duty rests upon
one absolutely, he cannot shift it to the shoulders of another, but is-
still liable for its nonperformance, although the fault be directly at-
tributable to an independent contractor. This is equally true of
common-law duties. Thus, the occupant of a house on whom de-
63. iMattise v. Manufacturing Co., 46 La. Ann. 1535, 16 South. 400;
City & S. Ry. Co. v. Moores, 80 Md. 348, 30 Atl. 643; Starrs v. City of Utica,
17 N. Y. 104; Colgrove v. Smith, 102 Cal. 220, 36 Pac. 411; Williams v. Irri-
gation Co., 96 Cal. 14, 30 Pac. 961; Pye v. Faxon, 156 Mass. 471, 31 N. E,
640; Hole v. Railroad Co., 6 Hurl. & N. 488.
2 Storrs v. City of Utica, 17 N. Y. 104; City of Ironton v. Kelley, 38 Ohio-
St. 50; Wilson v. City of Troy, 60 Hun, 188, 14 N. Y. Supp. 721; Id., 135 N.
Y. 96, 32 N. E. 44; City of Sterling v. Schiffmacher, 47 111. App. 141; City of
Beatrice v. Reid, 41 Xeb. 214, 59 N. W. 770; Kollock v. City of Madison,
84 Wis. 458, 54 N. W. 725; Hepburn v. City of Philadelphia, 149 Pa. St. 335,
24 Atl. 279; Ray v. City of Poplar Bluff, 70 Mo. App. 252.
s Carrico v. Railway Co., 39 W. Va. 86, 19 S. E. 571. See, also, Donovan
v. Transit Co., 102 Cal. 245, 36 Pac. 516; Lancaster Ave. Imp. Co. v. Rhoads,.
116 Pa. St. 377, 9 Atl. 852.
63) ABSOLUTE PERSONAL DUTIES.
volved the duty of caring for a lamp which, overhung the highway,
.and who employed an independent contractor to make repairs upon it,
was liable for damages caused by its falling on a passer-by. 4
Obligations Imposed by Statute.
When the obligation is raised by statute or ordinance, the responsi-
bility for its performance is absolute. "But when certain powers
and privileges have been specifically conferred by the public upon an
individual or corporation, for private emolument, in consideration of
which certain duties affecting public health or the safety of public
travel have been expressly assumed, the individual in receipt of the
emoluments cannot be relieved of liability by committing the perform-
ance of these duties to another. In such cases liability cannot be
evaded by showing that the injury resulted from the fault or neglect
of a third person employed to perform these public duties." 5 And
where a building is being constructed on a city lot, and the excava-
tion in the sidewalk is not protected as required by ordinance, the
owner of the lot is liable to persons injured by falling therein, al-
though the work is being done by an independent contractor. 6
Work Intrinsically Dangerous.
There is still another class of cases where the contract calls for the
performance of work intrinsically dangerous. Although in these
cases the thing to be done may be lawful, it is none the less opposed
to the spirit and policy of the law to permit the person who has as-
sumed the imposed duty to escape liability by shifting it to a con-
tractor. Thus, blasting of necessity involves danger to all who are
* Tarry v. Ashton, 1 Q. B. Div. 314; Gleeson v. Railway Co., 140 U. S.
435, 11 Sup. Ct. 859. It is immaterial what time the accident happened,
whether before, after, or during the work. Pig. Torts, 96. And see Khron
v. Brock, 144 Mass. 516, 11 X. E. 748. As to party walls and similar cases,
see Ketcham v. Newman, 141 N. Y. 205, 36 N. E. 197; Bower v. Peate, 1
Q. B. Div. 321.
B Mr. Justice Clark in Lancaster Ave. Imp. Co. v. Rhoads, 116 Pa. St. 377,
9 Atl. 852; Wood, Mast. & Serv. pp. 621-624; Ketcham v. Newman, 141 N.
Y. 205, 36 N. E. 197; Smith v. Traders' Exchange, 91 Wis. 360, 64 N. W.
1041; Taylor, B. & H. Ry. Co. v. Warner (Tex. Civ. App.) 31 S. W. 66; Hole
v. Railroad Co., 6 Hurl. & N. 488.
Spence v. Schultz, 103 Cal. 208, 37 Pac. 220; Crenshaw v. Ullman, 113
Mo. 633, 20 S. W. 1077; Savannah & W. R. Co. v. Phillips, 90 Ga. 829, 17
S. E. 82; Lancaster v. Insurance Co., 92 Mo. 460, 5 S. W. 23.
166 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4
in the immediate vicinity, and when the owner of premises within the
city employs a contractor to do work thereon which necessitates
blasting he is liable for injuries caused thereby to a third person. 7
When the work to be done is itself lawful, and is likely to be at-
tended with injurious consequences, it is manifestly difficult to draw
a clear line of distinction, or formulate a general rule determining
just what degree of danger is necessary to place the responsibility
on the employer. It would seem, however, that if the contemplated
work is of such a nature that in the exercise of ordinary care it could
be done with safety, although, in the absence of such care, it would
be attended with danger, and probable injury, to third persons, the
contractor alone would be responsible. 8 Where alterations in a build-
ing were being made by a contractor, and a wall, weakened by age and
decay, fell, and injured a third person, the owner was not liable, for
the work was not intrinsically dangerous, and could have been done
with safety had due care been used. 9
Liability for Negligence of /Subcontractors.
The same rules apply in determining responsibility for acts of a
subcontractor as in the case of a contractor. 10 If the relation of
master and servant exists between the contractor and subcontractor,
the former is liable for the negligence of the latter, otherwise the
responsibility rests solely on the subcontractor. And this general
rule is subject to the same exceptions that modify it in its application
i
i James' Adm'r v. McMinimy, 98 Ky. 471, 20 S. W. 435. Burning piles of
brush is not intrinsically a dangerous work. Shute v. Princeton Tp., 58 Minn.
337, 59 X. W. 1050; Carlson v. Stocking, 91 Wis. 432, 65 X. W. 58; Bren-
nan v. Schreiner (Super. N. Y.) 20 X. Y. Supp. 130; Stone v. Railroad Corp.,
19 N. H. 427; City of Tiffin v. McCormack, 34 Ohio St. 638. But see Tibbetts
v. Railroad Co., 62 Me. 437; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451;
McCafferty v. Railroad Co., 61 X. Y. 178; Booth v. Railroad Co., 140 X. Y.
267, 35 X. E. 592; French v. Vix, 143 X. Y. 90, 37 X. E. 612; Mahouey v.
Dankwart (Iowa) 79 X. W. 134.
s Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052; Conners v. Hennessey,
112 Mass. 96; McCafferty v. Railroad Oo., 61 X. Y. 178; Butler v. Hunter,
7 Hurl. & X. 826.
Engel v. Eureka Club, 137 X. Y. 100, 32 X. E. 1052.
10 Cuff v. Railroad Co., 35 X. J. Law, 17; Xew Orleans & X. E. R. Co. v.
Reese, 61 Miss. 581; The Harold, 21 Fed. 428; Hawke v. Brown, 28 App.
Div. 37, 50 X. Y. Supp. 1032; Rapson v. Cubitt, 9 Mees. & W. 710; Knight
v. Fox, 5 Exch. 721; Overton v. Freeman, 11 C. B. 867.
64) WILLFUL TORTS OF SERVANTS. 167
between employer and contractor. Thus, if one authorizes the doing
of an unlawful act, the responsibility therefor attaches to him, no
matter what subcontractor or deputy may hare actually committed
the wrong or injury; as, if one, without special authority, makes an
excavation in the sidewalk of a public street, whereby a pedestrian
is injured, he is liable, although the injury was caused by the negli-
gence of a subcontractor in not properly guarding the excavation. 11
WILLFUL TORTS OF SERVANTS.
64. The master is liable for the -willful misconduct of his
servant
(a) When committed within the course of the employ-
ment.
(b) When committed -without the scope of the employ-
ment, if the misconduct is the proximate cause of
the nonperformance of some duty owed by the
master to the aggrieved person.
Xot only is the master responsible for the negligence of his serv-
ant, as already stated, but he is liable for damages caused by his
acts of willful misconduct, within certain limitations. When the
act is committed at the express command or direction of the master,
the responsibility of the latter is clearly to be seen. Thus, if the
master directs his servant to commit a trespass, maintain a nui-
sance, perpetrate a fraud, or convert property of another to his own
use. 1 And if the authority or command is contingent on the hap-
pening of a certain event, or is otherwise qualified, and the serv-
11 Creed v. Hartmann. 29 X. Y. 591. See, also, Overton v. Freeman, 11 C.
B. 867. When both contractor and subcontractor are negligent, and the dam-
age cannot be distinguished, each is liable for the whole. Van Steenburgh v.
Tobias, 17 Wend. (X. Y.) 5C2; Partenheimer v. Van Order, 20 Barb. (X. Y.)
479.
64. i Southerne v. Howe, 2 Rolle, 5-26. See, also, State v. Smith, 78
Me. 260, 4 Atl. 412; Ketcham v. Newman, 141 X. Y. 205, 36 X. E. 197; Car-
man v. Railway Co., 4 Ohio St. 399; Searle v. Parke (N. H.) 34 Atl. 744.
Liability of master for criminal acts. Dyer v. Munday [1895] 1 Q. B. 742, 14
Reports, 306; Lloyd v. Business College, 13 Ohio dr. Ct. R. 358, 7 Ohio Dec.
318.
168 LIABILITY OF MASTER TO THIRD PERSONS. (Cll. 4
ant, disregarding the limitation, commits the tort, the master is still
responsible; as if the guard of an omnibus, being instructed to re-
move disorderly persons, should violently eject an inoffensive pas-
senger. 2 And it is generally sufficient to charge the master if the
servant acts on the belief that the circumstances calling for the
exercise of the authority have arisen. 3
More difficulty is experienced in attributing the tort of the serv-
ant to the master in cases where not only was the conduct purely
voluntary on the servant's part, but in direct violation of his orders;
as where defendant directed his superintendent to test a steam boiler
up to 150 pounds pressure, and no further, and the latter, in a spirit
of recklessness, attempted to test it up to 200 pounds, thereby caus-
ing it to burst, and injure plaintiff, a bystander. 4 The law in this and
similar cases would seem to be the outgrowth of public policy, rather
than the logical expression of an equitable rule, and can be justified
only by reasoning as to the actual authority with which the servant is
vested, and which alone rendered the misconduct and injury pos-
sible. "To visit a man with heavy damages for the negligence of
his servant, when he is able to show that he exercised all possible
care and precaution in the selection of him, is apt to strike the com-
mon mind as unjust." 6
Masters Benefit.
However unwarranted or extreme the misconduct of the servant
may be, if it was directly connected with the general business, and
prompted by a desire to promote the interests of his master in the
line of his employment, the responsibility reverts to the superior;
as in the case of a driver who, in order to feed his horses, and enable
him to complete the journey he was making for his master, con-
verted hay for his horses' use. 6 And where a brakeman, in the
2 Seymour v. Greenwood, 7 Hurl. & N. 355, 6 Hurl. & N. 359; Passenger
R. Co. v. Young, 21 Ohio St. 518; Southern Ry. Co. v. Wideman (Ala.) 24
South. 764; Bayley v. Railroad Co., L. R. 8 C. P. 148.
s Croft v. Alison, 4 Barn. & Aid. 590; Eckert v. Transfer Co., 2 Mo. App.
36; McCauley v. Hutkoff, 20 Misc. Rep. 97, 45 N. Y. Supp. 85.
Ochsenbein v. Shapley, 85 N. Y. 214.
5 Hays v. Millar, 77 Pa. St. 238, 242. See, also, Postal Telegraph Cable
Co. v. Brautley, 107 Ala. 683, 18 South. 321.
e Potulni v. Saunders, 37 Minn. 517, 35 N. W. 379; Walker v. Johnson, 28
Minn. 147, 9 N. W. 632; Levi v. Brooks, 121 Mass. 501; Voegeli v. Granite
64) WILLFUL TORTS OF SERVANTS. 169
course of his duty of keeping the cars free from intruders, kicked a
boy, who fell from the train against a pile of wood, and thence un-
der the wheels, and was injured, the defendant railroad was liable. 7
But in exercising his discretion in the use of force the servant must
use no more than is necessary, nor in any other way needlessly exag-
gerate the injury or damage. 8
On the other hand, if the servant, influenced by personal motive,
whim, or passion, for a purpose foreign to the service in which he
is engaged, willfully inflicts injury on the person or property of an-
other, it is his personal tort, not the master's. Thus, where plain-
tiff was crossing a street-car track, and the driver of a car cursed
him, and said, "I can smash you, anyhow," and then let go the brake,
and injured him. 9 And, in general, his authority and position must
not be used by the servant as a mere pretext for willful misconduct
and injury to others. 10
Co., 49 Mo. App. 643; People v. Roby, 52 Mich. 577, 18 X. W. 365; Pitts-
burgh, C. & St. L. Ry. Co. v. Kirk, 102 Ind. 399, 1 N. E. 849; but see Sta-
ples v. Schmid, 18 R. I. 224, 26 Atl. 193-196; Crocker v. Railroad Co., 24
Conn. 249; Knight v. Luce, 116 Mass. 586; Youmans v. Paine, 86 Hun, 479,
.35 N. Y. Supp. 50; Postal Telegraph Cable Co. v. Brantley, 107 Ala. 683, 18
South. 321; McDonald v. Franchere, 102 Iowa, 496, 71 N. W. 427; Nelson
Business College Co. v. Lloyd (Ohio Sup.) 54 N. E. 471. But see Little Rock
Traction & Electric Co. v. Walker (Ark.) 45 S. W. 57, where a street-car com-
pany was held not liable for arrest and prosecution of passenger.
T Rounds v. Railroad Co., 64 N. Y. 129. See, also, Johnson v. Railroad Co.,
-58 Iowa, 348, 12 N. W. 329.
8 Jones v. Glass, 35 X. C. 305; Pennsylvania R. Co. v. Vandiver, 42 Pa. St.
:365; Sanford v. Railroad Co., 23 X. Y. 343; Gallena v. Railroad Co., 13 Fed.
116; State v. Kinney, 34 Minn. 311, 25 X. W. 705. And a direction by de-
fendant to tear down plaintiff's fence warrants no inferred authority to com-
mit an assault on the person of plaintiff. Wagner v. Haak, 170 Pa. St. 495,
.32 Atl. 1087.
Wood v. Railway Co., 52 Mich. 402, 18 X. W. 124. But see Eckert v.
Transfer Co., 2 Mo. App. 36. And, generally, see Wright v. Wilcox, 19 Wend.
(X. Y.) 343; Pennsylvania Co. v. Toomey, 91 Pa. St. 256 (but see McClung
v. Dearborne, 134 Pa, St 396, 19 Atl. 698); Illinois Cent. R. Co. v. Downey,
18 111. 259; De Camp v. Railroad Co., 12 Iowa, 348; Marion v. Railroad Co.,
59 Iowa, 428, 13 X. W. 415; Moore v. Sanborne, 2 Mich. 519; Sutherland v.
Ingalls, 63 Mich. 620, 30 X. W. 342; Kaiser v. McLean, 20 App. Div. 32G, 46
N. Y. Supp. 1038.
10 Mali v. Lord, 39 N. Y. 381; Foster v. Bank, 17 Mass. 479; Henry v. Rail-
road Co., 139 Pa. St 289, 21 Atl. 157, but see Burns v. Railroad Co., 4 App.
170 LIABILITY OF MASTKR TO THIRD PERSONS. (Ch.
SAME TORTS OUTSIDE SCOPE OF EMPLOYMENT.
65. Where the servant, acting -without the scope of his
employment, commits a willful tort, whereby an
injury is done to a person to whom the master
owes a duty, the latter is still liable.
In the prior consideration of the liability of the master for his
servant's torts reference has been had to the relationship existing
between the master and servant only, but it is to be observed that
the privity between the master and the aggrieved party should also-
be considered. It not infrequently happens that the servant, act-
ing willfully and maliciously, and outside the scope of his employ-
ment, injures one to whom the master owes a special duty. In such
cases the master is liable, his responsibility resting purely on the
failure to perform the duty, the servant's misconduct being the im-
mediate cause of such failure. Instances of this kind occur most fre-
quently in the case of common carriers, who owe an absolute duty
of protection to their passengers from insult and injury by their
employe's. 1 Thus, in the case of a passenger who was attacked by
the driver of a street car, without provocation, and wantonly beaten
and bruised. 2 But the same rule exists in other vocations, where
the duty owed the aggrieved person is not of so high a character as-
that of the common carrier to the passenger. A patron of a the-
Div. 426, 38 N. Y. Supp. 856; Johanson v. Fuel Co. (Minn.) 75 N. W. 719;
Feneran v. Manufacturing Co., 20 App. Div. 574, 47 X. Y. Snpp. 284.
65. i Stewart v. Railroad Co., 90 N. Y. 588, overruling Isaacs v. Railroad
Co., 47 X. Y. 122; Richberger v. Express Co., 73 Miss. 161, 18 South. 922;
Gray v. Railroad Co., 168 Mass. 20, 46 X. E. 397; Southern Ry. Co. v. Wide-
man (Ala.) 24 South. 764; Spade v. Railroad Co. (Mass.) 52 X. E. 747; Haver
v. Railroad Co. (X. J. Err. & App.) 41 Atl. 916; Texas & P. Ry. Co. v. Hum-
phries (Tex. Civ. App.) 48 S. W. 201.
2 Fisher v. Railway Co., 34 Hun (X. Y.) 433; Craker v. Railroad Co., 3t>
Wis. 657; Bryant v. Rich, 106 Mass. 180; Philadelphia & R. R. Co. v. Derby,
14 How. (U. S.) 468; Goddard v. Railway Co., 57 Me. 202; McKinley v. Rail-
road Co., 44 Iowa, 314; Sherley v. Billings, 8 Bush (Ky.) 147 (per contra
Little Miami R. Co. v. "Wetmore, 19 Ohio St. 110); Palmeri v. Railway Co.,
133 X. Y. 261, 30 N. E. 1001; Warner v. Pacific Co., 113 Cal. 105, 45 Pac. 187.
See, also, consideration of this matter by Thos. S. Gates in Texas & P. Ry.
Co. v. Scoville, 62 Fed. 730, 34 Am, Law Reg. 120.
65) TORTS OUTSIDE SCOPE OF EMPLOYMENT. 1 7 1
ater has a right to be protected while in the theater, and if the-
ticket agent call out to any one of the audience to "put him out"
the proprietor will be liable for his wrongful ejectment. 3 A mer-
chant owes a duty to customers whom he has invited to enter his-
store or premises, and is responsible for willful and malicious ar-
rests 4 and assaults 5 upon them by his servants; and, even where
an insane servant killed a person who was in the master's office on
business, the master was liable. 6
Hours of Employment not a Test of Liability.
While it is true that the master is not liable for the tort of hi
servant committed after the employment is ended, 7 the hours of
employment do not constitute a satisfactory or decisive test of lia-
bility. For, on the one hand, the servant may commit an inde-
pendent tort during the hours of work, 8 and, on the other hand, he
may do something outside of working hours, either negligent or
willful, which will render his master liable. 9
a Drew v. Peer, 93 Pa. St. 234. And see, also, Dickson v. Waldron, 135
Ind. 507, 34 N. E. 506, and 35 X. E. 1.
* Geraty v. Stern, 30 Hun (N. Y.) 426; Clack v. Supply Co., 72 Mo. App.
506; Knowles v. Bullene, 71 Mo. App. 341; Stranahan Bros. Catering Co. y~
Coit, 55 Ohio St. 398, 45 X. E. 634 (but see Mali v. Lord, 39 N. Y. 381).
e Mallach v. Ridley (Sup.) 9 X. Y. Supp. 922.
e Christian v. Railway Co., 90 Ga. 124, 15 S. E. 701. Duty of railroad
company to one standing on its platform. Ohio & M. Ry. Co. v. Simms, 43
111. App. 260. And if in a saloon an intoxicated person, in the presence of the
proprietor, attach a burning piece of paper to his drunken companion's clothes,
the proprietor is liable for damages resulting. Rommel v. Schambacher, 120-
Pa. St. 579, 11 AtL 779; Brazil v. Peterson, 44 Minn. 212, 46 N. W. 331.
7 Yates v. Squires, 19 Iowa, 26; Baird v. Pettit, 70 Pa. St. 477-483; Hurst
r. Railroad Co., 49 Iowa, 76; Baltimore & O. R. Co. v. State, 33 Md. 542-554.
But see Ewald v. Railway Co., 70 Wis. 420, 36 N. W. 12.
s Hower v. Ulrich, 156 Pa. St. 410, 27 Atl. 37.
a Xoblesville & E. Gravel Road Co. v. Cause, 76 Ind. 142; Broderick v. De-
pot Co., 56 Mich. 261, 22 N. W. 802; Morier v. Railway Co., 31 Minn. 351,
17 X. W. 952; Rosenbaum v. Railroad Co., 38 Minn. 173, 36 N. W. 447; Wink
v. Weiler, 41 111. App. 336; Evansville & R. R. Co. v. Maddux, 134 Ind. 571,
33 X. E. 345.
172 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4
INDEPENDENT TOETS.
66. For the independent, individual torts of his servants
the master is not liable. 1 The question of what
conduct is -within and -what is -without the course
of employment is ordinarily one of fact for the jury.
But when one who is in fact a servant commits a tort, it is not clear
what amount of deviation from the course of his employment is suf-
ficient to interrupt the relation so as to relieve the master from lia-
bility. In the earlier cases a very slight deviation was held sufficient
to exonerate the master, but they are no longer generally followed in
this respect. Strong distinctions appear in the different classes of
cases. Thus, a carrier may be liable for forbidden assaults by his
agents upon passengers, to whom he owes a peculiar duty, 2 but when
the duty is performed the liability ceases, and an assault .upon a
passenger after he has left the train creates no responsibility upon
the railroad company. 3 Nor is the company responsible for a purely
personal encounter between its employe's and persons between whom
and the corporation there is no privity.* But a master is liable for
the act of his clerk in assaulting another because he refused to pay
for a bicycle, 5 or of his bartender in ejecting a person from his sa-
loon. 6 The driving cases are analogous. If the driver, abandoning
his master's service, engages in a journey wholly foreign to the em-
ployment, and for a purpose exclusively his own, the master is not
66. i Hower v. Ulrich, 156 Pa. St. 410, 27 Atl. 37.
2 Baltimore & O. R. Co. v. Barger, 80 Md. 23, 30 Atl. 560. Although the
assault was committed in resenting an insult. Texas & P. Ry. Co. v. Wil-
liams, 10 C. C. A. 463, 62 Fed. 440; Savannah, F. & W. Ry. Co. v. Quo, 103
Ga. 125, 29 S. E. 607; Williams v. Gill, 122 N>. C. 967, 29 S. E. 879; Louisville
& N. R. Co. v. Donaldson (Ky.) 43 S. W. 439.
s Central Ry. Co. v. Peacock, 69 Md. 257, 14 Atl. 709; Hanson v. Railway
Co., 75 111. App. 474.
*Gilliam v. Railroad Co., 70 Ala. 268; Candiff v. Railway Co., 42 La. Ann.
477, 7 South. 601. See, also, Cofleld v. McCabe, 58 Minn. 218, 59 N. W. 1005;
Golden v. Newbrand, 52 Iowa, 59, 2 N. W. 537.
5 Baylis v. Cycle Co. (City Ct. Brook.) 14 N. Y. Supp. 933.
Fortune v. Trainor, 65 Hun, 619, 19 N. Y. Supp. 598; Brazil v. Peterson,
44 Minn. 212, 46 N. W. 331.
66) INDEPENDENT TORTS. 173
liable for Ms acts while so engaged. 7 But where a driver, delivering
porter by the barrel, to a customer, at his request drove to a store to
get him a faucet, and by reckless driving injured plaintiff, it was for
the jury to determine whether or not the driver was acting within the
scope of his authority. 8
Substantially the same distinction holds in cases of false arrest,
It was formerly held in New York that the test of liability was the
command of the master, either actual or implied. 9 This rule did not
obtain for any great length of time. It was soon recognized that it
was the course of employment, not the command of the master, which
determined the liability, and that the master would be liable although
the conduct of the servant exceeded the authority. 10 The distinction
between what is and what is not in the due course of employment i&
well illustrated by the following cases: A ticket agent, having
caused the arrest of one who had paid him good money, but whom he
suspected of being a counterfeiter, it was held that his conduct was
merely in the capacity of a citizen, and not in that of an employe" of
the railroad company. 11 But where a dispute arose as to the amount
of change which had been given to the purchaser by the ticket agent,
and the latter followed her to the platform, charged her with passing
counterfeit money, detained her, and called her vile names, it was
7 Mitchell v. Crassweller, 13 C." B. 237; Aycrigg's Ex'rs v. Railroad Co.,
30 X. J. Law, 460; Douglass v. Stephens, 18 Mo. 362; Thorp v. Minor, 109
X. C. 152, 13 S. E. 702; Moore v. Sanborne, 2 Mich. 520; Courtney v. Baker,
00 X. Y. 1; Cavanagh v. Dinsmore, 12 Hun, 465; Stone v. Hills, 45 Conn.
44; Mott v. Ice Co., 73 X. Y. 543; Joel v. Morison, 6 Car. & P. 501; Ray-
iier v. Mitchell, 2 C. P. Div. 357; Storey v. Ashton, L. R. 4 Q. B. 476.
s Guinney v. Hand, 153 Pa. St. 404, 26 Atl. 20. Servant deviating from hia
established route on his own account, and leaving his team unhitched, mas-
ter is liable for injuries caused by team running away. Ritchie v. Waller,
63 Conn. 155, 28 Atl. 29; Quinn v. Power, 87 X. Y. 535; Flint v. Transporta-
tion Co., 34 Conn. 554; Mulvehill v. Bates, 31 Minn. 364, 17 N. W. 959; Jos-
lin v. Ice Co., 50 Mich. 516, 15 N. W. 887.
9 Mali v. Lord, 39 N. Y. 381; Lafitte v. Railroad Co., 43 La. Ann. 34, 8
South. 701.
10 Lynch v. Railroad Co., 90 N. Y. 77; Smith v. Munch, 65 Minn. 256, 68-
N. W. 19; Eichengreen v. Railroad Co., 96 Tenn. 229, 34 S. W. 219.
11 Mulligan v. Railway Co., 129 N. Y. 506, 29 N. E. 952; Davis v. Hough-
tellin, 33 Neb. 582, 50 X. W. 765; Allen v. Railroad Co., L. R. 6 Q. B. 65; Ed-
wards v. Railway Co., L. R. 5 C. P. 445.
174 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4
held that the agent's conduct was in the line of his employment; that
he was endeavoring to protect its interests, and recover its property ;
that the tort was not his individual wrong, and that the company
-was liable. 12
Each case must be determined in the light of the attendant facts,
.and whether the particular conduct is within the course of the em-
ployment is ordinarily a question of fact for the jury. 13 Where, how-
ever, there is no evidence forming a reasonable basis for the con-
clusion that the particular conduct was in the course of the employ-
ment, the court should take the case from the jury. 1 *
Real and Personal Property No Distinction in Principle.
It was formerly supposed that the duty resting upon the owner of
real estate was of a higher order than any connected with personalty,
.and that for the negligence of one employed thereon for the owner's
benefit he would be held to a more strict accounting. This distinc-
tion between owners of real estate and owners of personalty is no
longer recognized. 15
12 Palmeri v. Railway Co., 133 X. Y. 261, 30 X. E. 1001; Fortune v. 'Trainor,
65 Hun, 619, 19 X. Y. Supp. 598; Smith v. Webster, 23 Mich. 298; Oakland
City Agricultural & Industrial Soc. v. Bingham, 4 Ind. App. 545, 31 X. E. 383;
Harden v. Felch, 109 Mass. 154; Cameron v. Express Co., 48 Mo. App. 99;
Kolzem v. Railroad Co. (Com. PI.) 1 Misc. Rep. 148, 20 N. Y. Supp. 700;
Duggan v. Railroad Co., 159 Pa. St. 248, 28 Atl. 182; Staples v. Schmid, 18
K. I. 224, 26 Atl. 193.
is Smith v. Spitz, 156 Mass. 319, 31 X. E. 5; Guinney. v. Hand, 153 Pa.
St 404, 26 Atl. 20; Brunner v. Telegraph Co., 151 Pa. St. 447, 25 Atl. 29; Lang
v. Railroad Co., 80' Hun, 275, 30 X. Y. Supp. 137; Tinker v. Railroad Co.,
71 Hun, 431, 24 X. Y. Supp. 977, distinguishing Mulligan v. Railway Co., 129
K Y. 506, 29 X. E. 952; Pittsburgh, Ft. W. & C. Ry. Co. v. Maurer, 21 Ohio
.St 421; Dells v. Stollenwerk, 78 Wis. 339, 47 X. W. 431; Robinson v. Rail-
way Co., 94 Wis. 345, 68 X. W. 961.
i* Towanda Coal Co. v. Heeman, 86 Pa. St, 418; Bank of Xew South Wales
T. Owston, 4 App. Cas. 270.
IB Reedie v. Railway Co. (1849) 4 Exch. 243; Bush v. Steinman (1799) 1 Bos.
.& P. 404; Quarman v. Burnett (1840) 6 Mees. & W. 499; McCafferty v. Rail-
road Co., 61 N. Y. 178, distinguishing Storrs v. City of Utica, 17 X. Y. 104;
Water Co. v. Ware, 16 Wall. 566; Hay v. Cohoes Co., 2 X. Y. 159.
67) COMMON CARRIER OF PASSENGERS. 175
CHAPTER V.
COMMON CARRIER OF PASSENGERS.
67. Definition.
68. The Relation of Passenger and Carrier.
69. Termination of Relation.
70. Arrival of Passenger at Destination.
71. Transfer of Passenger to Connecting Carrier.
72. Ejection of Passenger.
73. Who are Passengers Definition.
74. Prepayment of Fare.
75. Classification of Passengers.
76. The Contract.
77. The Ticket as Evidence.
78. Compensation.
79. Liability to Passengers.
80. Liability for Delay.
81. Limitation of Liability.
DEFINITION.
67. Any person, partnership, or corporation -whose gen-
eral business, either in whole or in part, consists
in the transportation of passengers for hire or ben-
efit of any kind, is a common carrier. They are:
(a) Public carriers, -who are bound to accept for trans-
portation, -without discrimination as to compensa-
tion or service, all proper persons -who are not for
any reason liable to injure other passengers; 1 or
(b) Private carriers, who carry only incidentally or un-
der special contracts.
67. i Eads v. Railway Co., 43 Mo. App. 536; but need not carry one with
contagious disease, Paddock v. Railroad Co., 37 Fed. 841; nor on Sunday,
Walsh v. Railway Co., 42 Wis. 23; nor an insane person, Meyer v. Railway
Co., 4 C. C. A. 221,. 54 Fed. 116; Atchison. T. & S. F. R. Co. v. Weber, 33
Kan. 543, 6 Pac. 877; nor a person so intoxicated as to be disgusting or
annoying to other passengers, Pittsburgh, C. & St. L. Ry. Co. v. Vandyne,
57 Ind. 576; Vinton v. Railroad Co., 11 Allen (Mass.) 304.
176 COMMON CARRIER OF PASSENGERS. (Ch. 5-
In its ordinary significance, the term "common carrier" is applied
to public carriers only, but it is no less applicable to any person or
company which transports people for hire. It is of the former class,
so largely in the majority, that this chapter mainly treats. The
duties and liabilities of a private carrier are greatly abridged. He
is bound to carry those only whom he may select, and his duty to-
wards them is discharged by the exercise of ordinary care only^
Where railroad contractors, operating a construction train, take on
a passenger for hire as a mere favor, they are responsible only for
the exercise of such skill and care in its management and operation
as ordinarily prudent and cautious men would exercise under similar
circumstances. 2 In such a case the court said of the contractors:
"They did not hold themselves out as capable of carrying passengers
safely, they had no arrangements for passenger service, and they
were not required to make provisions for the protection of the road r
such as are usually adopted and exacted of railroad companies." *
If, however, the carriage of persons upon construction trains is cus-
tomary, persons having no knowledge of a contrary rule of the com-
p..ny would have a right to rely on the supposed authority of the
conductor in charge to grant permission to ride thereon.*
THE RELATION OF PASSENGER AND CARRIER.
68. The relation of passenger and carrier begins -when the
person intending passage has entered the vehicle
or has entered upon the grounds or premises of the
carrier in the customary manner for the purpose of
embarkation "within a reasonable time. 1
The relation of passenger and carrier must usually be inferred
from circumstances. A person about to take passage upon a train
2 Shoemaker v. Kingsbury, 12 Wall. 369.
s Shoemaker v. Kingsbury, 12 Wall. 369.
* St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461. But see
Evansville & R. R. Co. v. Barnes, 137 Ind. 306, 36 N. E. 1092. Logging com-
pany a carrier. Albion Lumber Co. v. De Nobra, 19 C. C. A. 168, 72 Fed. 739.
68. i Chicago & E. I. R. Co. v. Chancellor, 60 111. App. 525. A reason-
able time. Harris v. Stevens, 31 Vt. 79. Intention to take a train by per-
son waiting in station makes him a passenger. Grimes v. Pennsylvania Co.,
36 Fed. 72.
> 68) THE RELATION OF PASSENGER AND CARRIER. 177
does not formally deliver his body over to tbe conductor or otber
agent of tbe company; he merely conducts bimself, directs bis move-
ments, in a manner usual witb tbose about to undertake a journey
in similar circumstances. Tbe point to be determined is whether
the would-be traveler has so conducted himself in the circumstances
that the carrier must be deemed to have accepted him as its pas-
senger, and, if this point is affirmatively shown, it is immaterial
that the contemplated journey has not been actually begun. There
are, of course, certain reasonable limitations to such an inference of
a contract; and so, where a person boarded a railway train after it
had started, it was held that he did not thereby become a passenger
until he had reached a safe place in the car. 2 But where the carrier
provides a waiting room at its station, and a person, intending pas-
sage within a reasonable time, enters such room to await the train,
he becomes, and is entitled to all the rights of, a passenger. 3 And
when a person attempts to board an omnibus or street car which
has slowed up or stopped in response to his signal, whether he is
successful or not, he is none the less a passenger, while the attempt
is being made with the knowledge and acquiescence of the carrier. 4
The implied invitation of the carrier to the public to become passen-
gers upon its vehicles does not cover every time and place; the time
must be proper, the place suitable, and the traveler must offer him-
self in an ordinarily prudent and reasonable manner; and where a
would-be passenger ran, rapidly and carelessly, directly in front of
an incoming train, it was held that he did not hold himself in read-
2 Merrill v. Railroad Co., 139 Mass. 238, 1 N. E. 548; Sharrer v. Paxson,
171 Pa. St. 26, 33 Atl. 120.
a Gordon v. Railroad Co., 40 Barb. 546; Grimes v. Pennsylvania Co., 36 Fed.
72; Phillips v. Railway Co. (N. C.) 32 S. E. 388; Wells v. Railroad Co., 25
App. Div. 365, 49 N. Y. Supp. 510; St. Tx>uis S. W. Ry. Co. v. Franklin (Tex.
Civ. App.) 44 S. W. 701; St. Louis S. W. Ry. Co. v. Griffith, 12 Tex. Civ. App.
631, 35 S. W. 741.
* Brien v. Bennett, 8 Car. & P. 724; Smith v. Railway Co., 32 Minn. 1,
18 N. W. 827. But mere fact of signaling and intent of driver to stop ear
is not sufficient to establish the relation. Donovan v. Railway Co., 65 Conn.
201, 32 Atl. 350. See, also, Schepers v. Railroad Co., 126 Mo. 665, 29 S. W.
712; Jones v. Railroad Co., 163 Mass. 245, 39 X. E. 1019; Rogers v. Steamboat
Co., 86 Me. 261, 29 Atl. 1069; Washington & G. R. Co. v. Patterson, 9 App.
D. C. 423; Young v. Railroad Co. (Mass.) 50 N. E. 455; Chicago & E. I. R.
Co. v. Chancellor, 60 111. App. 525.
BAR.NEG. 12
178 COMMON CARRIER OF PASSENGERS. (Ch. 5
iness to be taken as a passenger, nor present himself in a proper
way. 6 But the actual purchase of a ticket or entrance into the ve-
hicle of the carrier is not essential to the establishment of the rela-
tion of passenger and carrier. 6 Thus, a person who is injured while
attempting to board a train under the direction of the servants of
the carrier is a passenger, whether a ticket has been purchased or
not; 7 and a person who enters the carrier's train, with its consent,
before it is ready to start, is an accepted passenger. 8
TERMINATION OF RELATION.
69. The relation of passenger and carrier is terminated by
(a) The arrival of the passenger at his destination;
(b) The transfer of the passenger to connecting carrier;
(c) The ejection of the passenger from the vehicle.
SAME ARRIVAL OF PASSENGER AT DESTINATION.
70. The relation of passenger and carrier is ordinarily
terminated only by the voluntary departure of the
passenger from the vehicle and premises of the car-
rier at the end of the journey, provided such de-
parture is made -within a reasonable time and in the
usual way. 1
B Webster v. Railroad Co., 161 Mass. 298, 37 N. E. 165; Dodge v. Steamship
Co., 148 Mass. 207, 19 X. E. 373.
e Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. 1069; Allender v. Railroad
Co., 37 Iowa, 264; Gordon v. Railroad Co., 40 Barb. 546. But see Gardner
*. Northampton Co., 51 Conn. 143; Indiana Cent. Ry. Co. v. Hudelsou, 13
Ind. 325.
7 Warren v. Railroad Co., 8 Allen (Mass.) 227; McDonald v. Railroad Co.,
26 Iowa, 124; Allender v. Railroad Co., 37 Iowa, 264; Norfolk & W. R. Co.
v. Groseclose's Adm'r, 88 Va. 267, 13 S. E. 454. Per contra, Indiana Cent. Ry.
Co. v. Hudelson, 13 Ind. 325.
s Hannibal & St. J. R. Co. v. Martin, 111 111. 219; Lent v. Railroad Co., 120
N. Y. 467, 24 X. E. 653. And see Poucher v. Railroad Co., 49 X. Y. 2(53; Gard-
ner v. Railroad Co., 94 Ga. 538, 19 S. E. 757.
69-70. i Pittsburg, C. & St. L. Ry. Co. v. Martin (Super. Ct. Gin.) 2
Ohio N. P. 353; St. Louis S. W. Ry. Co. v. Griffith, 12 Tex. Civ. App. 631, 35
S. W. 741. Reasonable time. Chicago, K. & W. R. Co. v. Frazer, 55 Kan. 582,
40 Pac. 923; Smith v. Railway Co., 29 Or. 539, 46 Pac. 136, 780. If he de-
70) ARRIVAL OF PASSENGER AT DESTINATION.
The passenger may, however, sever the relation at any intermedi-
ate point by abandoning the contract of carriage and surrendering;
his rights thereunder. 2 But the intention to abandon the contract
must be reasonably certain, and leaving the conveyance for a tem-
porary purpose, 3 or to pass from one vehicle to another, 4 or by ren-
dering assistance to the carrier or his servants in case of an acci-
dent, 6 does not constitute a surrender of his rights as a passenger..
Getting Off at Stations.
Ordinarily the passenger does not surrender his rights as such at:
the termination of his journey by the mere act of getting off the
train. He is still entitled to the care and protection of the carrier
until he has had a reasonable opportunity to leave the station and
premises. 8 At the terminus of the journey, as in transit, it is the
duty of the carrier to use the highest degree of care in the execu-
tion of his contract. To this end he must stop the conveyance at
the usual point of debarkation, and not at a distance on either side. 77
barks at a place other than the station, and is injured while crossing the-
tracks, and without invitation, he is not a passenger. Buckley v. Railroad
Co., 161 Mass. 26, 36 N. E. 583. One getting on wrong train, and walking:
back to station and falling into cattle guard, cannot recover. Finnegau v.
Railway Co., 48 Minn. 378, 51 N. W. 122; Pittsburgh, C. & St. L. Ry. Co. v~
Krouse, 30 Ohio St. 222; Imhoff v. Railway Co., 20 Wis. 344.
2 Buckley v. Railroad Co., 161 Mass. 26, 36 N. E. 583. But see Johnson T-..
Railroad Co., 63 Md. 106.
s Parsons v. Railroad Co., 113 N. Y. 355, 21 N. E. 145; Keokuk Northern
Line Packet Co. v. True, 88 111. 608; Watson v. Railroad Co., 92 Ala. 320, &
South. 770; Dice v. Locks Co., 8 Or. 60; Jeffersonville, M. & I. R. Co. v. Riley,
39 Ind. 568. But see Johnson v. Railroad Co., 125 Mass. 75; Illinois Cent_
R. Co. v. Whittemore, 43 111. 420; McClure v. Railroad Co., 34 Md. 532; Den-
ver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. 557.
* Xorthrup v. Assurance Co., 43 N. Y. 516; Hulbert v. Railroad Co., 40 X_
Y. 145; Chicago & A. R. Co. v. Winters, 175 111. 293, 51 N. E. 901; Washing-
ton & G. R. Co. v. Patterson, 9 App. D. C. 423.
o Street Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333.
Allerton v. Railroad Co., 146 Mass. 241, 15 N. E. 621. And compare Platt
v. Railroad Co., 4 Thomp. & a 406; Pittsburg, C. & St. L. Ry. Co. v. Mar-
tin, 2 Ohio X. P. 353, 3 Ohio Dec. 493; Atlanta Consol. St. Ry. Oo. v. Bates,
103 Ga. 333, 30 S. E. 41. See, also, cases cited in section 70, note 1, ante.
7 Louisville, N. A. & C. Ry. Co. v. Cook, 12 Ind. App. 109, 38 N. E. 1104 -
Brulard v. The Alvin, 45 Fed. 766; Miller v. Railway Co., 93 Ga. 630, 21 S. EL
153; Dudley v. Smith, 1 Camp. 16-7; International & G. X. Ry. Co. v. Terry,.
180 COMMON CARRIER OF PASSENGERS. (Ch. 5
To stop the train and announce a station is an invitation to alight
at that point, and if such point is remote from the platform, or other-
wise unsuitable, the carrier is liable for resultant injury to a prop-
erly debarking passenger. 8 While it is no part of the carrier's duty
to assist passengers in alighting, 9 the stations should be an-
nounced, 10 and a reasonable length of time afforded for debarka-
tion. 11
62 Tex. 380; Illinois Cent. R. Co. v. Able, 59 111. 131; Illinois Cent. R. Co.
v. Chambers, 71 111. 519; Reed v. Railway Co., 100 Mich. 507, 59 N. W. 144;
East Tennessee, V. & G. R. Co. v. Lockhart, 79 Ala. 315; White Water R. Co.
v. Butler, 112 Ind. 598, 14 X. E. 599; Alabama G. S. R. Co. v. Sellers, 93 Ala.
9, 9 South. 375; Georgia Railroad & Banking Co. v. McCurdy, 45 Ga. 288;
Mobile & O. R. Co. v. McArthur. 43 Miss. 180; New Orleans, J. & G. N. R.
Co. v. Hurst, 36 Miss. 660; Southern R. Co. v. Kendrick, 40 Miss. 374; For-
dyce v. Dillingham (Tex. Civ. App.) 23 S. W. 550; Texas & P. Ry. Co. v. Man-
sell, Id. 549; West Chicago St. R. Co. v. Walsh, 78 111. App. 595.
s Columbus & I. C. Ry. Co. v. Fan-ell, 31 Ind. 408; Terre Haute & I. R.
Co. v. Buck, 96 Ind. 346; Philadelphia, W. & B. R. Co. v. McCormick, 124
Pa. St. 427, 16 Atl. 848; Philadelphia & R. R. Co. v. Edelstein (Pa. Sup.) 16
Atl. 847; McNulta v. Ensch, 134 111. 46, 24 N. E. 631; Gulf, C. & S. F. Ry.
Co. v. Sain (Tex. Civ. App) 24 S. W. 958; International & G. N. R. Co. v.
Smith (Tex. Sup.) 14 S. W. 642; Memphis & L. R. Ry. Co. v. Stringfellow, 44
Ark. 322; Richmond & D. R. Co. v. Smith, 92 Ala. 237, 9 South. 223; Hous-
ton & T. C. R. Co. v. Dotson (Tex. Civ. App.) 38 S. W. 642. But the mere
calling of the name of a station will not, under all circumstances, be con-
strued an invitation to alight. Central R. Co. of New Jersey v. Van Horn, 38
N. J. Law, 133; Smith v. Railway Co., 88 Ala. 538, 7 South. 119; England
v. Railroad Co., 153 Mass. 490, 27 N. E. 1; Philadelphia, W. & B. R. Co. v.
Anderson, 72 Md. 519, 20 Atl. 2; International & G. X. R. Co. v. Eckford, 71
Tex. 274, 8 S. W. 679; Louisville, N. A. & C. Ry. Co. v. Lucas, 119 Ind. 583, 21
X. E. 968; Richmond City Ry. Co. v. Scott, 86 Va. 902, 11 S. E. 404; Griffith v.
Railway Co., 98 Mo. 168, 11 S. W. 559; Cockle v. Railway Co., L. R. 5 C. P.
457; Id., L. R. 7 O. P. 321; Lewis v. Railway Co., L. R. 9 Q. B. 66; Weller v.
Railway Co., L. R. 9 C. P. 126; Bridges v. Railway Co., L. R. 7 H. L. 213.
Xunn v. Railroad Co., 71 Ga, 710; Rabeu v. Railway Co., 73 Iowa, 579, 35
X. W. 645; Id., 74 Iowa, 732, 34 N. W. 621; Sevier v. Railroad Co., 61 Miss.
8; Texas & P. Ry. Co. v. Alexander (Tex. Civ. App.) 30 S. W. 1113. But a
sleeping-car company is bound to awaken passengers. Pullman Palace-Car
Co. v. Smith, 79 Tex. 468, 14 S. W. 993.
loRaben v. Railway Co., 73 Iowa, 579, 35 N. W. 645; Hurt v. Railway
Co., 94 Mo. 255, 7 S. W. 1; Southern R. Co. v. Kendrick, 40 Miss. 374; Louis-
ville, N. O. & T. R. Co. v. Mask, 64 Miss. 738, 2 South. 360.
11 Keller v. Railroad Co.. 27 Minn. 178, 6 X. W. 486; Raben v. Railway
71) TRANSFER OF PASSENGER TO CONNECTING CARRIER. 181
%
SAME TRANSFER OF PASSENGER TO CONNECTING
CARRIER.
71. In the absence of special contract, the carrier's liabil-
ity is at an end "when he delivers the passenger for
further transportation over the connecting line or
route of another carrier.
The principles underlying the termination of liability by delivery
to connecting carriers apply equally to carriers of passengers and
carriers of goods, and will be found more fully and conveniently dis-
cussed under the latter head. 1
When the obligation of the initial carrier is to transport only to
the end of his line, his liability to the passenger ceases when that
point is reached. 2 This much is beyond controversy. The diffi-
culty lies in determining what constitutes a contract for carriage
beyond the terminus of the initial carrier's line, so as to extend his
liability beyond that point. That the initial carrier may so obli
Co., 73 Iowa, 579, 35 N. W. 645; Hurt v. Railway Co., 94 Mo. 255, 7 S. W. 1;
Straus v. Railroad Co., 75 Mo. 185; Mississippi & T. R. Co. v. Gill, 66 Miss.
39, 5 South. 393; Fairmount & A. S. P. Ry. Co. v. Stutler, 54 Pa. St. 375;
Pennsylvania R. Co. v. Kilgore, 32 Pa. St. 292; Mulhado v. Railroad Co.,
30 .N. Y. 370; Ferry v. Railway Co., 118 X. Y. 497, 23 N. E. 822; Baker v.
Railroad Co., 118 X. Y. 533, 23 X. E. 885; Wood v. Railway Co., 49 Mich. 370,
13 X. W. 779; Finn v. Railway Co., 8(5 Mich. 74, 48 N. W. 696; Krai v. Rail-
way Co., 71 Minn. 422, 74 X. W. 166; Minor v. Railroad Co., 21 App. Div. 307,
47 X. Y. Supp. 307; Cable v. Railway Co., 122 X. C. 892, 29 S. E. 377; Pierce
v. Gray, 63 111. App. 158; Luse v. Railway Co., 57 Kan. 361, 46 Pac. 768;
Southern R. Co. v. Mitchell, 98 Tenn. 27, 40 S. W. 72. If one about to alight
is injured by the premature starting of the train, he may recover. Washing-
ton & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571, 13 Sup. Ct. 557; Hill v.
Railway Co., 158 Mass. 458, 33 N. E. 582; Gilbert v. Railway Co.. 160 Mass.
403, 36 N. E. 60; Onderdonk v. Railway Co., 74 Hun, 42, 26 X. Y. Supp. 310;
Bernstein v. Railroad Co., 72 Hun, 46, 25 X. Y. Supp. 669; Chicago & A. R.
Co. v. Arnol, 144 111. 261, 33 X. E. 204; Illinois Cent. R. Co. v. Taylor, 46 111.
App. 141.
71. i See post, pp. 290-296.
2 Hartan v. Railroad Co., 114 Mass. 44; Pennsylvania R. Co. v. Connell, 112
111. 295; Kerrigan v. Railroad Co., 81 Cal. 248, 22 Pac. 677; Atchison, T. &
S. F. R. Co. v. Roach, 35 Kan. 740, 12 Pac. 93.
182 COMMON CARRIER OF PASSENGERS. (Cll. 5
gate himself is unquestioned, 3 and it is equally well settled that he
may contract against any liability beyond the terminus of his own
line.*
In the absence of an unequivocal, express contract, the weight of
authority seems to be to the effect that a through ticket is merely
evidence to be considered and weighed in connection with other cir-
.-cumstances, 5 although in some of the earlier cases, which have not
been expressly overruled, it was held, following the rule in Mus-
champ v. Lancaster & P. J. Ry. Co., 6 that the first carrier issuing a
.through ticket is prima facie liable for the entire distance. 7
No matter what the contract of the first carrier may be, as to the
point of termination of his liabilitj 7 , the right of the passenger to
ue the particular carrier on whose line the injury is suffered is un-
. affected thereby. 8
Quimby v. Vanderbilt, 17 N. Y. 306; Van Buskirk v. Roberts, 31 N. Y.
661; Bussman v. Transit Co., 9 Misc. Rep. 410, 29 N. Y. Supp. 1066; Gary v.
Kailroad Co., 29 Barb. 35; Candee v. Railroad Co., 21 Wis. 589; Cherry v.
Railroad Co., 1 Mo. App. Rep'r, 253; Nashville & C. R. Co. v. Sprayberry, 9
:Heisk, (Tenn.) 852; Watkins v. Railroad Co., 21 D. C. 1. That such a con-
tract is not ultra vires, see Buffett v. Railroad Co., 40 N. Y. 168; Bissell v.
Hailroad Co., 22 N. Y. 258; Chicago & A. R. Co. v. Dumser, 161 111. 190, 43 N.
.E. 698.
* Berg v. Railroad Co., 30 Kan. 561, 2 Pac. 639; Moore v. Railway Co. (Tex.
Civ. App.) 45 S. W. 609.
sHartan v. Railroad Co., 114 Mass. 44; Pennsylvania R. Co. v. Connell, 112
111. 295; Young v. Railroad Co., 115 Pa. St. 112, 7 Atl. 741; Nashville & C. R.
Oo. v. Sprayberry, 9 Heisk. (Tenn.) 852; Knight v. Railroad Co., 56 Me. 234;
Hood v. Railroad Co., 22 Conn. 1. And see Brooke v. Railroad Co., 15 Mich.
332; Kessler v. Railroad Co., 61 N. Y. 538.
e 8 Mees. & W. 421.
7 Illinois Cent. R. Co. v. Copeland, 24 111. 332; Najac v. Railroad Co., 7
-Allen (Mass.) 329; Wilson v. Railroad Co., 21 Grat. (Va.) 654; Candee v.
IRailroad Co., 21 Wis. 589; Carter v. Peck, 4 Sneed (Tenn.) 203; Barkinan v.
Itailroad Co., 89 Fed. 453; Omaha & R. V. Railway Co. v. Crow, 54 Neb.
"747, 74 N. W. 1066. The English cases support this rule. Great Western Ry.
vCo. v. Blake, 7 Hurl. & N. 987; Mytton v. Railway Co., 4 Hurl. & N. 614.
sSchopruan v. Railroad Corp., 9 Gush. (Mass.) 24; Chicago & R. I. R. Co.
r. Fahey, 52 111. 81; Johnson v. Railroad Co., 70 Pa. St. 357. But see Furst-
venheim v. Railroad Co., 9 Heisk. (Tenn.) 238.
72) EJECTION OF PASSENGER. 183
SAME EJECTION OF PASSENGER,
72. The carrier may, in certain circumstances, eject the
passenger from the vehicle, and thus terminate the
relation, provided
(a) That the ejection is made at a suitable place, and
(b) That it is made with due regard for the passenger's
safety, and that no more force is used to accom-
plish the purpose than is necessary.
Whenever the passenger becomes guilty of disorderly conduct, or
it seems inevitable or probable that he will be guilty of rudeness or
indecency, the carrier is justified in ejecting him from the vehicle. 1
And if the passenger is intoxicated, and uses boisterous, profane, or
otherwise indecent language, it is not only the right, but the duty,
of the carrier, towards other passengers, to eject him. 2 But mere
drunkenness, if unaccompanied by specific acts of offensive conduct,
does not ordinarily warrant expulsion. 3 If the passenger refuses to
pay his fare, 4 or to otherwise comply with proper and reasonable reg-
72. i Vinton v. Railroad Co., 11 Allen (Mass.) 304; Sullivan v. Railroad
Co., 148 Mass. 119, 18 N. E. GTS: Baltimore, P. & C. R. Co. v. McDonald, 68
Ind. 316; Peavy v. Railroad C^., 81 Ga. 485, 8 S. E. 70; Chicago City Ry.
Co. v. Pelletier, 134 111. 120, 24 X. E. 770.
2 Yinton v. Railroad Co., 11 Allen (Mass.) 304. And see, generally, as to
drunken passengers, Missouri Pac. Ry. Co. v. Evans, 71 Tex. 361, 9 S. W. 325;
Cincinnati, I., St. L. & C. R. Co. v. Cooper, 120 Ind. 469, 22 N. E. 340; Strand
v. Railway Co., 67 Mich. 380, 34 N. W. 712; Murphy v. Railway Co.. 118
Mass. 228; Chicago & A. R: Co. v. Randolph, 65 111. App. 208; Edgerly v.
Railroad Co. (X. H.) 36 Atl. 55S; Robinson v. Rockland, T. & C. St. Ry. Co.,
87 Me. 387. 32 Atl. 994.
s Putnam v. Railroad Co., 55 N. Y. 108; Prendergast v. Compton, 8 Car. &
P. 454,
4 Ohio & M. R. Co. v. Muhling, 30 111. 9; Pittsburgh, C. & St. L. Ry. Co.
v. Dewin, 86 111. 296; Great Western Ry. Co. v. Miller, 19 Mich. 305; Gibson
v. Railroad Co., 30 Fed. 904; O'Brien v. Railroad Co., 15 Gray (Mass.) 20;
State v. Campbell, 32 X. J. Law, 309; Wyman v. Railroad Co., 34 Minn. 210,
25 X. W. 349; Lillis v. Railway Co., 64 Mo. 464; Grogan v. Railway Co., 39
W. Va. 415, 19 S. E. 593. Cf. Ramsden v. Railroad Co., 104 Mass. 117; Tre-
zona v. Railway Co., 107 Iowa, 22, 77 X. W. 486; McGhee v. Reynolds (Ala.)
23 South. 68; Illinois Cent. R. Co. v. Marlett (Miss.) 23 South. 583; Krueger
v. Railway Co., 68 Minn. 445, 71 X. W. 683.
1S4 COMMON CARRIER OF PASSENGERS. (Cll. 5
illations, he forfeits his right to be carried; 5 or if he insists on using
the vehicles of the carrier for the purpose of vending his wares.
But because a carrier has the right to reject an applicant for pas-
sage, as being of bad character or otherwise objectionable, it does
not follow that, having accepted him, he retains an option to eject
him at any time for a like reason. 7
Tender after Refusal.
A tender of fare or an offer of compliance with regulations may
nevertheless be effectually made by the recalcitrant passenger at any
time before the carrier has actually begun to eject him, and the car-
rier is then bound to accept such proffer, and to permit him to con-
tinue his journey. 8 When, however, the carrier has already taken
decisive steps towards his removal, as stopping the train, such a ten-
der need not be accepted, and the ejection may be carried out. 9 In
such cases, if the passenger has already paid the whole or a part of
his fare, the amount paid must be refunded, before the right of ejec-
tion is complete. 10
5 Illinois Cent. R. Co. v. Whittemore, 43 111. 420; McClure v. Railroad Co.,
34 Md. 532; Denver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. 557;
Noble v. Railroad Co., 4 Okl. 534, 46 Pac. 483; Decker v. Railroad Co., 3
Okl. 553, 41 Pac. CIO; McMillan y. Railway Co., 172 Pa. St. 523, 33 Atl. 500.
e The D. R. Martin, 11 Blatchf. 233, Fed. Cas. No. 1,030; Com. v. Power,
7 Mete. (Mass.) 590; Barney v. Steamboat Co., 67 N. Y. 301.
7 Pearson T. Duane, 4 Wall. 605.
s Hutch. Carr. (2d Ed.) 591a; Ham v. Canal Co., 142 Pa. St. 617, 21 Atl.
1012; O'Brien v. Railroad Co., 80 N. Y. 236; Louisville & N. R. Co. v. Garrett,
8 Lea (Tenn.) 438; Texas & P. Ry. Co. v. Bond, 62 Tex. 442; South Caro-
lina R. Co. v. Nix, 68 Ga. 572; Baltimore & O. R. Co. v. Norris, 17 Ind. App.
189. 49 N. E. 554.
o Hibbard v. Railroad Co., 15 N. Y. 455; O'Brien v. Railroad Co., 80 N. Y.
236; Pease v. Railroad Co., 101 N. Y. 367, 5 N. E. 37; Hoffbauer v. Railroad
Co., 52 Iowa, 342, 3 N. W. 121; State v. Campbell, 32 N. J. Law, 309; Cin-
cinnati, S. & C. R. Co. v. Skillman, 39 Ohio St. 444; Pic-kens v. Railroad Co.,
104 N. C. 312, 10 S. E. 556; Clark v. Railroad Co., 91 N. C. 506; Atchison, T.
& S. F. R. Co. v. Dwelle, 44 Kan. 394, 24 Pac. 500; Louisville, N. & G. S.
R. Co. v. Harris, 9 Lea (Tenn.) 180; Galveston, H. & S. A. Ry. Co. v. Turner
(Tex. Civ. App.) 23 S. W. 83; Harrison v. Fink. 42 Fed. 787; Guy v. Railway
Co., 6 Ohio N. P. 3; Illinois Cent. R. Co. v. Bauer, 66 111. App. 121.
10 Bland v. Railroad Co., 55 Cal. 570; Iseman v. Railroad Co., 52 S. C. 566,
30 S. E. 488; Lake Shore & M. S. R. Co. v. Orndorff, 55 Ohio St. 589, 45 N. E.
447. But see Hoffbauer v. Railroad Co., 52 Iowa, 342, 3 N. W. 121, contra,
72) EJECTION OF PASSENGER. 185
The Ejection must ~be Made at a Suitable Place.
In those states where there is no statute requiring railroads, in
cases of ejection, to put off the offending passenger at a station or
near a dwelling house, the train may be stopped and the passenger
required to get off at any point 11
Exercise of Reasonable Care.
In exercising the right of ejection, reasonable care must be taken
that the person is not needlessly or wantonly exposed to ijajury or
suffering. He must not be ejected in a dangerous place, 12 nor from
a train in rapid motion. 13 No more force must be used than is es-
sential for the purpose, and the carrier will be liable for any unnec-
essary or excessive force or willful injury. 14 Kesistance by the pas-
senger may, however, be overcome by a necessary amount of force. 15
where the amount paid was no more than the carrier was entitled to for the
distance the passenger was carried before being ejected. And compare
Burnham v. Railroad Co., 63 Me. 29S; Cheney v. Railroad Co., 11 Mete.
(Mass.) 121.
11 Illinois Cent. R. Co. v. Whittemore, 43 111. 420; O'Brien v. Railroad Co.,
15 Gray (Mass.) 20; Brown v. Railroad Co., 51 Iowa, 235, 1 N. W. 487; Wy-
rnan v. Railroad Co., 34 Minn. 210, 25 N. W. 349; Lillis v. Railway Co., 64
Mo. 464; Great Western Ry. Co. v. Miller, 19 Mich. 305; McClure v. Railroad
Co., 34 Md. 532; Young v. Railway Co. (La.) 25 South. 69; Guy v. Railway
Co., 6 Ohio X. T. 3; McCook v. Xorthup (Ark.) 45 S. W. 547; Burch v.
Railroad Co., 3 App. D. C. 346; Boehm v. Railway Co., 91 Wis. 592, 65 N. W.
506.
12 Gulf, C. & S. F. Ry. Co. v. Kirkbride, 79 Tex. 457, 15 S. W. 495; Louis-
ville & N. R. Co. v. Ellis' Aclm'r, 97 Ivy. 330, 30 S. W. 979; Johnson v. Rail-
road Co., 104 Ala. 241, 16 South. 75; Edison v. Railway Co. (Miss.) 23 South.
369; Louisville & N. R. Co. v. Johnson, 108 Ala. 62, 19 South. 51. Ejection of
one under physical disability. Young v. Railway Co. (La.) 25 Sotith. 69.
is Sanford v. Railroad Co., 23 N. Y. 343; State v. Kinney, 34 Minn. 311, 25
N. W. 705; Brown v. Railroad Co., 66 Mo. 588; Gulf, C. & S. F. Ry. Co. v.
Kirkbride, 79 Tex. 457, 15 S. W. 495; Fell v. Railroad Co., 44 Fed. 248; Bos-
worth v. Walker, 27 C. C. A. 402, 83 Fed. 58; Union Pac. Ry. Co. v. Mitchell,
56 Kan. 324, 43 Pac. 244.
14 New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039;
Holmes v. Wakefield, 12 Allen (Mass.) 580; Pennsylvania R. Co. v. Vandiver,
42 Pa. St. 365; Bass v. Railroad Co., 36 Wis. 450; Mykleby v. Railway Co.,
39 Minn. 54, 38 N. W. 763; Evansville & I. R. Co. v. Gilmore, 1 Ind. App. 468,
27 N. E. 992; Gulf, C. & S. F. Ry. Co. v. Kuenhle (Tex. App.) 16 S. W. 177;
is Townsend v. Railroad Co., 56 N. Y. 295.
186 COMMON CARRIER OF PASSENGERS. (Ch. U
Wrongful Ejection.
When a passenger is wrongfully expelled from a train, it is not
necessary for the protection of his rights that he resist, in order that
the carrier may be compelled to use force. It is amply sufficient if,
at the demand of the conductor, he leaves the car under protest. 16
If the attempt to remove the passenger is in itself wrongful, he
may use a reasonable amount of force in resisting; but, even where
the passenger is right and the conductor wrong, it has been held
to be contributory negligence to resist the latter by engaging in an
unnecessary trial of strength. 17 Of course, a party may resist when,
in the circumstances, resistance is necessary for the protection of his
life or to prevent serious injury, as when a train is in rapid mo-
tion. 18 .
WHO ABE PASSENGERS DEFINITION.
73. Generally speaking, a passenger is one, other than
an employe, who, in accordance with the reasona-
ble regulations of the carrier, has seasonably pre-
sented himself for transportation.
Not every one who rides upon the conveyances of a common car
rier is entitled to exact the extraordinary degree of care which the
Knowles v. Railroad Co., 102 N. C. 59, 9 S. E. 7; Jardine v. Cornell, 50 X. J.
Law, 485, 14 Atl. 590; Brown v. Railroad Co., "66 Mo. 588; Philadelphia, W.
& B. R. Co. v. Larkin, 47 Md. 155. But see Pittsburgh, C., C. & St. L. Ry.
Co. v. Russ, 6 C. C. A. 597, 57 Fed. 822.
i Southern Kan. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817. See, also. Pull-
man Palace-Car Co. v. Reed, 75 111. 125; Hall v. Railroad Co., 15 Fed. 57;
Bradshaw v. Railroad Co., 135 Mass. 407; Townsend v. Railroad Co., 56 N. Y.
301; Pennsylvania R. Co. v. Connell, 112 111. 296; Ray v. Traction Co., 19
App. Div. 530, 4G N. Y. Supp. 521; Consolidated Traction Co. v. Taborn. .",8
N. J. Law, 1, 32 Atl. 685.
IT Brown v. Railroad Co., 7 Fed. 51, 65; Hall v. Railroad Co., 15 Fed. 57.
is Southern Kan. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817; Hall v. Rail-
road Co., 15 Fed. 57; Brown v. Railroad Co., 7 Fed. 51; Sanford v. Railroad
Co., 23 N. Y. 343; English v. Canal Co., 66 N. Y. 454; Louisville, N. A. & C.
Ry. Co. v. Wolfe, 128 Ind. 347, 27 N. E. 606. In the last two cases the passen-
ger had paid his fare, and was ejected for refusal to pay again, and was
in each instance permitted to recover for injuries due to his reasonable re-
sistance.
73) WHO ARE PASSENGERS DEFINITION. 187
carrier is bound to extend towards a passenger. 1 The common car-
rier may properly set apart and designate certain vehicles for the
carriage of passengers and others for freight; and a railroad has
the undoubted right to reserve particular cars for its exclusive use
in the proper conduct of its business, and upon which it is not bound
to carry passengers, as pay cars, 2 private cars, and hand cars. 3
And, if the company makes other suitable provision for transport-
ing its passengers, it is not compelled to admit them to travel on
its freight trains. 4 It follows that the relation of carrier and pas-
senger does not exist between a railroad and one who, either sur-
reptitiously or by force, obtains an entrance into a freight train. 5
It is, of course, otherwise if the company habitually permits or
tacitly consents to the use of its freight trains by passengers, al-
though such carriage is prohibited by the regulations of the road. 6
But when there is no coach attached to the train at all fitted or
suitable for the carriage of passengers, or calculated to invite en-
trance, and the well-known regulations forbid such carriage, the
burden of proof falls upon the person claiming damages to show an
invitation or permission, either express or implied, to enter such
train as a passenger. 7 "The presumption of law is that persons rid-
73. i St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461.
2 Southwestern R. Co. v. Singletou, 66 Ga. 252.
3 Hoar v. Railroad Co., 70 Me. 65; Willis v. Railroad Co., 120 N. C. 508,
26 S. E. 784.
* Jenkins v. Railway Co., 41 Wis. 112; Gardner v. Northampton Co., 51
Conn. 143.
5 Eaton v. Railroad Co., 57 N. Y. 382; Houston '& T. C. Ry. Co. v. Moore,
49 Tex. 31; Arnold v. Railroad Co., S3 111. 273; Thomas v. Railway Co., 72
Mich. 355, 40 N. W. 463; Murch v. Railroad Corp., 29 N. H. 9; Hobbs v. Rail-
way Co., 49 Ark. 357, 5 S. W. 586; Louisville & N. R. Co. v. Hailey, 94
Tenn. 383, 29 S. W. 367; San Antonio & A. P. Ry. Co. v. Lynch, 8 Tex. Civ.
App. 513, 28 S. W. 252.
Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31; Lucas v. Railway Co., 33
Wis. 41; Dunn v. Railroad Co., 58 Me. 187; Alabama G. S. R. Co. v. Yar-
"brough, 83 Ala. 238, 3 South. 447; St. Joseph & W. R. Co. v. Wheeler, 35
Kan. 185, 10 Pac. 461; Burke v. Railway Co., 51 Mo. App. 491; Boehm v.
Railway Co., 91 Wis. 592, 65 N. W. 506; Arkansas Midland Ry. Co. v. Grif-
fith, 63 Ark. 491, 39 S. W. 550.
7 Houston & T. C. Ry. Co. v. Moore, -19 Tex. 31; St. Louis S. W. Ry. Co. v.
White (Tex. Civ. App.) 34 S. W. 1042.
188 COMMON CARRIER OF PASSENGERS. (Ch. 5
ing upon trains of a railroad carrier which are manifestly not de-
signed for the transportation of persons are not lawfully there; and,
if they are permitted to be there by the consent of the carrier's em-
ploye's, the presumption is against the authority of the employe's to
bind the carrier by such consent. But such presumption may be
overthrown by special circumstances, as, where the railroad com-
pany would derive a benefit from the presence of drovers upon its
cattle trains, and its employe's in charge of such trains invite or per-
mit drovers to accompany their cattle, the presumption against a
license to the person thus carried may be overthrown." 8
On the other hand, if a railroad company permits any of its freight
trains to be used for carrying passengers, it is equivalent, so far as
the public is concerned, to authorizing the conductors of all freight
trains to receive passengers; 9 and, if such other conductors are not
so authorized or are expressly forbidden to carry passengers, they
are in the nature of secret limitations upon the apparent author-
ity, and not binding upon third persons without actual notice. 10
Although the ordinary passenger pays his fare in consideration of
his carriage, the compensation may be indirect, and his purpose on
the train other than that of mere transportation. Express mes-
sengers, 11 newsboys, 12 and postal clerks 13 are none the less pas-
sWaterbury v. Railroad Co., 17 Fed. 671.
Dunn v. Railway Co., 58 Me. 187; St. Joseph & W. R. Co. v. Wheeler, 35
Kan. 185, 10 Pac. 461; Brown v. Railroad Co., 38 Kan. 634, 16 Pac. 942;
Wagner v. Railway Co., 97 Mo. 512, 10 S. W. 486; Texas & P. Ry. Co. v.
Black, 87 Tex. 160, 27 S. W. 118.
10 Lawson v. Railway Co., 64 Wis. 447, 456, 24 N. W. 618; St. Joseph &
W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461; Illinois Cent. R. Co. v. Axley,
47 111. App. 307.
11 Blair v. Railway Co., 66 N. Y. 313; Chamberlain v. Railroad Co., 11 Wis.
238. Cf. Pennsylvania Co. v. Woodworth, 26 Ohio St. 585; Yeomans v. Navi-
gation Co., 44 Cal. 71; San Antonio & A. P. Ry. Co. v. Adams, 6 Tex. Civ.
App. 102, 24 S. W. 839; Voight v. Railway Co., 79 Fed. 561.
12 Com. v. Vermont & M. R. Co., 108 Mass. 7; Yeomaus v. Navigation
Co., 44 Cal. 71.
is Pennsylvania R. Co. v. Price, 96 Pa. St. 256; N;olton v. Railroad Corp.,
15 N. Y. 444; Seybolt v. Railroad Co., 95 N. Y. 562; Hammond v. Railroad
Co., 6 S. C. 130; Houston & T. C. R. Co. v. Hampton, 64 Tex. 427; Arrowsmith
v. Railroad Co., 57 Fed. 165; Louisville & N. R. Co. v. Kinguian (Ky.) 35
S. W. 264; Norfolk & W. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811; International
73) WHO ARE PASSENGERS DEFINITION. 189
sengers because they are carried under special contracts, and the lia-
bility of the carrier towards them cannot in any case be modified
by such special contract, unless they are privy to it; 14 but the ab-
solute duty of carrying the mails is imposed by United States stat-
ute, and cannot be modified by contract limiting or abrogating lia-
bility for injuries to agents engaged in the postal service. 15 Al-
though traveling on Sunday may be illegal by statute, the carrier is
not thereby relieved of liability. 18
If the carrier receives into its vehicles the passengers of another
carrier, 17 or furnishes motive power for their transportation, 18 they
become the passengers of the carrier so transporting them; so, also,
of the servants of another company. 19
Employes as Passengers.
When an employ^ of the carrier is transported daily or frequently
to and from his work in the vehicles of his master, without charge,
even if his work is entirely unconnected with the operation of the
road or system, while so traveling he is not a passenger, and his
& G. N. Ry. Co. v. Davis (Tex. Civ. App.) 43 S. W. 540; Collett v. Railway Co.,
16 Q. B. 984.
11 Blair v. Railway Co., 66 N. Y. 313; Pennsylvania Co. v. Woodworth, 26
Ohio St. 585; Yeomans v. Navigation Co., 44 Cal. 71; Hammond v. Railroad
Co., 6 S. C. 130.
1 5 Arrowsrnith v. Railroad Co., 57 Fed. 165; Mellor v. Railway Co., 105
Mo. 455, 16 S. W. 849; Seybolt v. Railroad Co., 95 N. Y. 562. Cf. Pennsyl-
vania R. Co. v. Price, 96 Pa. St. 256. See, also, Louisville & N. R. Co. v.
Kingman (Ky.) 35 S. W. 264; Norfolk & W. R. Co. v. Shott, 92 Va. 34, 22 S.
E. 811.
16 Carroll v. Railroad Co., 58 N. Y. 126.
if Foulkes v. Railway Co., 4 C. P. Div. 267, 5 C. P. Div. 157; White v.
Railroad Co., 115 N. C. G31, 20 S. E. 191; Reynolds v. Railway Co., 2 Rose. N.
P. Ev. 735; Dalyell v. Tyrer, 28 Law J. Q. B. 52; Martin v. Railway Co., L.
R. 3 Exch. 9. And see Skinner v. Railway Co., 5 Exch. 787.
is Sehopman v. Railroad Corp., 9 Gush. (Mass.) 24; Galveston, H. & S. A.
Ry. Co. v. Parsley, 6 Tex. Civ. App. 150, 25 S. W. 64.
19 Zeigler v. Railroad Co., 52 Conn. 543; Philadelphia, W. & B. R. Co. v.
State, 58 Md. 372. Cf. Illinois Cent. R. Co. v. Frelka, 110 111. 498; Pennsyl-
vania Co. v. Gallagher, 40 Ohio St. 637; In re Merrill, 54 Vt. 200; Lockhart v.
Lichtenthaler, 46 Pa. St. 151, 159; Cumberland Val. R. Co. v. Myers, 55
Pa. St. 288; Brown v. Railway Co., 40 U.C. Q. B. 333; Vose v. Railway Co.,
2 Hurl. & N. 728. And see Torpy v. Railway Co., 20 U. C. Q. B. 446; Lacka-
waniia & B. R. Co. v. Chenewith, 52 Pa. St. 382.
190 COMMON CARRIER OF PASSENGERS. (Ch. 5
rights are determined by the law of master and servant. 20 But, al-
though he pays no fare, if he is traveling on his own business he is
a passenger. 21 And, when the carrier either directly or indirectly
receives compensation for his carriage, he is a passenger, and not a
servant; as if the transportation is considered in fixing his wages,
or a deduction is made therefrom on that account. 22 But when
transportation is given an employe' at irregular or infrequent inter-
vals, as to a surveyor who was hired by the month, and was being
carried from his home to the place of his work, it has been held that
he can recover as a passenger for injuries suffered through the neg-
ligence of the carrier. 23
Gratuitous Passengers.
The extraordinary duties which a common carrier owes to its pas-
sengers do not depend alone on the consideration paid for the serv-
ice. They are imposed by law even when the service is gratuitous. 24
The leading case on this point is that of Philadelphia & K. R. Co. v.
Derby. 25 The president of one railroad, riding on the invitation of
the president of another over the latter's road, was injured by a col-
lision, and was allowed to recover therefor; the court saying that
20 Vick v. Railroad Co., 95 X. Y. 267; Gillshannon v. Railroad Corp., 10 Gush.
(Mass.) 228; Seaver v. Railroad Co., 14 Gray (Mass.) 4G6; New York, L. E. &
W. R. Co. v. Burns, 51 N. J. Law, 340, 17 Atl. 630; Ryan v. Railroad Co.,
23 Pa. St. 384; O'Donnell v. Railroad Co., 59 Pa. St. 239; Russell v. Rail-
road Co., 17 N. Y. 134; Wright v. Railroad Co., 122 N. C. 852, 29 S. E. 100.
Porter on palace car. Jones v. Railway Co., 125 Mo. 666, 28 S. W. 883. Con-
tra, Hughson v. Railroad Co., 9 App. D. C. 98.
21 Ohio & M. R. Co. v. Muhling, 30 111. 9; Doyle v. Railroad Co., 162 Mass.
66, 37 N. E. 770. But see Higgins v. Railroad Co., 36 Mo. 418.
22 O'Donnell v. Railroad Co., 59 Pa. St. 239, in seeming opposition to Vick
v. Railroad Co., 95 N. Y. 267; but in the latter case it did not appear that the
consideration of transportation was material in making the contract.
23 Ross v. Railroad Co., 5 Hun (N. Y.) 488, affirmed in 74 N. Y. 617.
24 Todd v. Railroad Co., 3 Allen (Mass.) 18; Com. v. Vermont & M. R. Co.,
108 Mass. 7; Littlejohn v. Railroad Co., 148 Mass. 478, 20 N. E. 103; Files
v. Railroad Co., 149 Mass. 204, 21 N. E. 311; Philadelphia & R. R. Co. v. Der-
by, 14 How. 468; The New World v. King, 16 How. 469; Quimby v. Rail-
road Co., 150 Mass. 365, 368, 23 N. E. 205; Waterbury v. Railroad Co., 17 Fed.
671; Nolton v. Railroad Corp., 15 *?. Y. 444; Perkins v. Railroad Co., 24 N.
Y. 197; Jacobus v. Railway Co., 20 Minn. 125 (Gil. 110).
2514 How. 468.
WHO ARK PASSENGERS DEFINITION. 191
the defendant railroad owed plaintiff the duty of safe transporta-
tion, independent of any contract. The invitation to ride free must,
however, be given by one in authority; otherwise, and especially if
it is in known violation of rules, he is not a passenger. 26 But a
child riding with her parents without payment of fare can claim the
rights of a passenger, provided she is within the age at w 7 hich the-
road permits children to ride free. 27 Stockmen in charge of stock
to look after them in transit, traveling on drovers' passes, are en-
titled to protection and safe carriage, as ordinary passengers. 28
It is held by some courts that the carrier may, by contract, limit
his liability for the carriage of gratuitous passengers. 29
Duty to Accept Passengers.
Those who hold themselves out to the public as common carriers
of persons are bound to accept for transportation all proper persons
who apply in the customary manner. 3p This does not mean that
20 Hoar v. Railroad Co., 70 Me. 65; Eaton v. Railroad Co., 57 N. Y. 382;
Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31; Waterbury v. Railroad Co.,
17 Fed. 671, and note; Ohio & M. Ry. Co. v. Allender, 59 111. App. 620; Wil-
cox v. Railway Co., 11 Tex. Civ. App. 487, 33 S. W. 379; Brevig v. Railway
Co., 64 Minn. 168, 66 N. W. 401; De Palacios v. Railway Co. (Tex. Civ. App.)
45 S. W. 612; Galaviz v. Railroad Co. (Tex. Civ. App.) 38 S. W. 234.
-' Austin v. Railway Co., 8 Best & S. 327, L. R. 2 Q. B. 442. In this case the
child was 3 years and 3 months old, and should have paid half fare, yet a
recovery was permitted.
28 Indiauapolis & St. L. R. Co. v. Horst, 93 U. S. 291; Florida Ry. & Nav.
Co. v. Webster, 25 Fla. 394, 5 South. 714; Olson v. Railroad Co., 45 Minn. 536,
4S X. W. 445; Orcutt v. Railroad Co., 45 Minn. 368, 47 N. W. 1068; Missouri
Pac. Ry. Co. v. Ivy, 71 Tex. 409, 9 S. W. 346; New York, Q & St. L. R. Co. v.
Blumeuthal, 160 111. 40, 43 X. E. 809; Omaha & R. V. Ry. Co. v. Crow, 47
Neb. 84, 66 N. W. 121; Saunders v. Southern Pac. Co., 13 Utah, 275, 44 Pac.
932; Chicago & A. R. Co. v. Winters, 175 111. 293, 51 N. E. 901; St. Louis S.
W. Ry. Co. v. Nelson (Tex. Civ. App.) 44 S. W. 179; Louisville & N. R. Co. v.
Bell (Ky.) 38 S. W. 8; Ft. Scott, W. & W. Ry. Co. v. Sparks, 55 Kan. 288, 39
Pac. 1032.
29 See post, p. 212. Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. 1069; Mul-
doon v. Railway Co., 10 Wash. 311, 38 Pac. 995.
so West Chester & P. R. Co. v. Miles, 55 Pa. St. 209; Sanford v. Railroad
Co., 2 Phila. (Pa.) 107; Day v. Owen, 5 Mich. 520; Hollister v. Nowlen, 19
Wend. (N. Y.) 234; Hannibal R. R. v. Swift, 12 Wall. 262; Saltonstall v.
Stockton, Taney, 11, Fed. Cas. No. 12,271; Indianapolis, P. & C. Ry. Co. v.
Rinard, 46 Ind. 293; Lake Erie & W. R. Co. v. Acres, 108 Ind. 548, 9 N. E,
192 COMMON CARRIER OF PASSENGERS. (Cll. 5
they must carry every person who is not positively dangerous or ob-
noxious to other passengers, but merely that carriers cannot consult
personal prejudice or exercise nice discrimination in determining
whom they will transport. They need not carry persons having con-
tagious diseases, 31 nor those who are intoxicated and disorderly. 32
Neither are they obligated to carry criminals, or those going upon
the train with the intent of committing an assault on a passenger.
The would-be passenger must be free from unlawful intent, and the
carrier is not bound to accept persons who intend using the trains for
gambling purposes. 33 Likewise, if the presence of a person on a
train or his arrival at the proposed destination would probably be
productive of violence or disorder, he may be refused passage. 34
Peddlers, Book Agents, Etc.
In the absence of specific contract, a passenger has no right to
use the vehicles of the carrier for purposes of traffic, and the car-
rier may properly refuse to admit to its trains or vehicles those in-
tending to come aboard for that purpose, 35 or may eject those who,
being on the train or boat, engage in such traffic contrary to the
regulations. 36
453; Mershon v. Hobensack, 22 N. J. Law, 372; Baltimore & 0. R. Co. \.
Carr, 71 Md. 135, 17 Atl. 1052.
si Tburston v. Railroad Co., 4 Dill. 321, Fed. Cas. Xo. 14,019. Rule as to
blind men: Zachery v. Railroad Co., 74 Miss. 520, 21 South. 246; Id., 75 Miss.
746, 23 South. 434.
82 Putnam v. Railroad Co., 55 X. Y. 108; Pittsburgh & C. R. Co. v. Pillow,
76 Pa. St. 510; but not slight intoxication, Pittsburgh, O. & St. L. R. Co. v.
Vandyne, 57 Ind. 576; Milliman v. Railroad Co., 66 N. Y. 642; Vinton v.
Railroad Co., 11 Allen (Mass.) 304; Pittsburgh, Ft. W. & C. Ry. Co. v. Hinds,
53 Pa. St. 512; Flint v. Transportation Co., 34 Conn. 554; Freedon v. Rail-
road Co., 24 App. Div. 306, 48 N. Y. Supp. 584.
33 Thurston v. Railroad Co., 4 Dill. 321, Fed. Cas. Xo. 14,019; Galveston, H.
& S. A. Ry. Co. v. McMonigal (Tex. Civ. App.) 25 S. W. 341.
s* Pearson v. Duane, 4 Wall. 605. But see, as to a prostitute, Brown v.
Railroad Co., 7 Fed. 51.
sis Jencks v. Coleman, 2 Suinn. 221, Fed. Cas. Xo. 7,258; Com. v. Power, 7
Mete. (Mass.) 596; Xew Jersey Steam Xav. Co. v. Merchants' Bank of Bos-
ton, 6 How. 343; The D. R. Martin, 11 Blatchf. 233, Fed. Cas. Xo. 1,030; Bar-
ney v. Steamboat Co., 67 N. Y. 301; Smallinan v. Whilter, 87 111. 545.
ae The D. R. Martin, 11 Blatchf. 233, Fed. Cas. Xo. 1,030.
74) PREPAYMENT OF FARE. 193
Limited Accommodations.
When the accommodations of the carrier are limited, he is not
bound to receive passengers after the room is exhausted. 37 But if,
having sold a person a ticket, the carrier is unable or fails to fur-
nish him with suitable accommodations, he is liable for breach of
contract. 38
SAME PREPAYMENT OF FARE.
74. The prepayment of fare may be demanded, as a con-
dition precedent to accepting a person as a passen-
ger.
As it is the business of the carrier to transport for hire, he is
bound to carry only those who are able and willing to pay the fare,
and prepayment may be demanded, as a condition precedent to ac-
cepting a person as a passenger. 1 But, in order that the passenger
may be rightfully on the train for transportation, it is not neces-
sary that he should have paid his fare before entering, or bought his
ticket. 2 It is sufficient if he intends paying his fare when demand-
37 Chicago & X. W. R. Oo. v. Carroll, 5 111. App. 201; Evansville & C. R. Co.
v. Duncan, 28 Ind. 441.
ss The Pacific, 1 Blatchf. 569, Fed. Cas. No. 10,643; Evansville & C. R. Co.
v. Duncan, 28 lad. 441; Alabama & V. Ry. Co. v. Drummond, 73 Miss. 813,
20 South. 7; Hawcroft v. Railway Co., 8 Eng. Law & Eq. 362. A carrier is
bound to furnish seats for passengers, and, on his failure to do so, the pas-
senger may refuse to surrender his ticket and leave the train, but cannot insist
on being carried if he retains his ticket. Hardenbergh v. Railway Co., 39 Minn.
3, 38 X. W. 625; Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5;
Davis v. Railroad Co., 53 Mo. 317; St. Louis, I. M. & S. Ry. Oo. v. Leigh, 45
Ark. 368; Louisville, X. O. & T. Ry. Co. v. Patterson, 69 Miss. 421, 13 South.
607.
74. iDay v. Owen, 5 Mich. 520; Tarbell v. Railroad Co., 34 Cal. 616;
Nashville & C. R. Co. v. Messino, 1 Sneed (Tenn.) 220; McCook v. Xorthup
(Ark.) 45 S. W. 547; Ker v. Mountain, 1 Esp. 27. A strict tender of fare is
not necessary. Day v. Owen, supra; Pickford v. Railway Co., 8 Mees. & W.
372.
2 Cleveland v. Steamboat Co., 68 N. Y. 306; Carpenter v. Railroad Co., 97
X. Y. 494; Ellsworth v. Railway Co. (Iowa) 63 X. W. 584; Houston & T. C.
R. Co. v. Washington (Tex. Civ. App.) 30 S. W. 719; Cross v. Railway Co.,
56 Mo. App. 664; Missouri, K. & T. Ry. Co. v. Simmons, 12 Tex. Civ. App.
500, 33 S. W. 1096.
BAR.XEG. 13
194 COMMON CARRIER OF PASSENGERS. (Cll. 5
ed, and is guilty of no deceit which prevents such demand being
made; 3 and this is true even when the rules of the carrier require
that tickets shall be bought before entering the train, by persons
intending to take passage. 4
When the carrier is in possession of knowledge which would war-
rant him in refusing to accept a person as a passenger, he should
make his election, either to receive or refuse him, at the earliest pos-
sible moment. If, being in possession of such knowledge, he sells
him a ticket, he cannot thereafter refuse him transportation. 5 If
a ticket is inadvertently sold to such a person, the contract of car-
riage cannot, in any event, be rescinded without a repayment of the
fare. 8
SAME CLASSIFICATION OF PASSENGERS.
75. A common carrier is bound to furnish equal accom-
modations to similar persons paying the same fare,
but the charge may properly be graduated accord-
ing to the service, and such regulations may be
made and enforced as reasonably tend to the com-
fort and convenience of passengers generally.
While the carrier is obligated to accept for transportation all suit-
able persons who apply in the customary way, he may very properly
regulate the character of the accommodations in accordance w y ith a
fixed scale of prices. 1 Such an arrangement is in entire accord with
well-settled business principles, and adds to the comfort and conven-
ience of all classes of travelers. 2 And it is not only reasonable, but
eminently desirable, that proper provision be made for the comfort
s Columbus, C. & I. C. Ry. Co. v. Powell, 40 Ind. 37. Per contra, see Gard-
ner v. Northampton Co., 51 Conn. 143.
* Doran v. Ferry Co., 3 Lans. (N. Y.) 105.
e Hannibal R. Co. v. Swift, 12 Wall. 262; Pearson v. Dnane, 4 Wall. 605;
Tarbell v. Railroad Co., 34 Cal. 616. But see Com. v. Power, 7 Mete. (Mass.)
596; The D. R. Martin, 11 Blatchf. 233, Fed. Gas. No. 4,092.
e Thurston v. Railroad Co., 4 Dill. 321, Fed. Cas. No. 14,019.
75. i Wright v. Railway Co., 78 Cal. 300, 20 Pac. 740; St. Louis, A. & T.
Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711; Nolan v. Railroad Co., 41 N. Y.
Super. Ct. 541; Alabama & V. Ry. Co. v. Drummond, 73 Miss. S13, 20 South. 7.
2 Day v. Owen, 5 Mich. 520; Westchester & P. R. Co. v. Miles, 55 Pa. St. 209.
75) CLASSIFICATION OF PASSENGERS. 195
and protection of women by affording them separate compartments,
where they may be free from contact with, and annoyance by, the
male passengers. 3 It follows, of course, that, if the carrier maj
make such regulations, he has the authority and the right to have
them enforced. But all such classification must be reasonable, and
dictated not by whim or prejudice, but by sound and judicious pol-
icy.* And while the carrier may not unjustly, or from mere caprice,
discriminate between passengers on account of color, race, social
position, or religious belief, 5 he may provide separate apartments for
white and colored passengers, provided they are substantially alike,
and comfortable. 6
Trespassers not Passengers.
To entitle a person to recover for injuries inflicted during trans-
portation by the negligence of the carrier, it is essential that he be
rightfully on the train or vehicle, otherwise he is a trespasser to
whom the carrier owes no duty except to abstain from willful in-
jury. 7 And a person who attempts to defraud the carrier by the use
s Peck v. Railroad Co., 70 N. Y. 587; Memphis & C. R. Co. v. Benson, 85
Tenn. 627, 4 S. W. 5; Chicago & X. W. R. Co. v. Williams, 55 111. 185; Bass v.
rtailroad Co., 36 Wis. 450. 39 Wis. 630, and 42 Wis. 654; Brown v. Railroad
Co., 7 Fed. 51. And see Marquette v. Railroad Co., 3a Iowa, 562, Sufficient
accommodations for other passengers must be provided elsewhere. Bass v.
Railroad Co., supra.
* Coger v. Packet Co., 37 Iowa, 145; Central R. Co. v. Green, 86 Pa. St. 427;
>\'estchester & P. R. Co. v. Miles, 55 Pa. St. 209; Chicago & N. W. R. Co. v.
Williams, 55 111. 185. But see Goines v. McCandless, 4 Phila. (Pa.) 255.
e Coger v. Packet Co., 37 Iowa, 145; Central R. Co. v. Green, 86 Pa. St.
427; Westchester & P. R. Co. v. Miles. 55 Pa. St 209.
s Chicago & X. W. R. Co. v. Williams, 55 111. 185; Houck v. Railway Co.,
38 Fed. 226; The Sue, 22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318;
Murphy v. Railroad Co., Id. 637; Anderson v/ Railroad Co., 62 Fed. 46. And
see Gray v. Railroad Co., 11 Fed. 683; Louisville & X. R. Co. v. Com., 99 Ky.
663, 37 S. W. 79; Ohio Valley Railway's Receiver v. Lander (Ky.) 47 S. W.
344, 48 S. W. 145; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct 1138. But
see, also, Railroad Co. v. Brown, 17 Wall. 445.
T Gardner v. Xorthampton Co., 51 Conn. 143; Hendryx v. Railroad Co., 45
Kan. 377, 25 Pac. 893; Toledo, W. & W. Ry. Co. v. Brooks, 81 111. 245; Chi-
cago & A. R. Co. v. Michie, 83 111. 427; Chicago, B. & Q. R. Co. v. Mehlsack,
131 111. 61, 22 X. E. 812; Bricker v. Railroad Co., 132 Pa. St. 1, 18 Atl. 9S3;
Haase v. Xavigation Co., 19 Or. 354, 24 Pac. 238; Condran v. Railway Co.,
14 C. C. A. 506, 67 Fed. 522; Union Pac. Ry. Co. v. Xichols, 8 Kan. 505; Wa-
196 COMMON CARRIER OF PASSENGERS. (Ch. 5
of a false ticket, 8 or a similar deceit, 9 is a trespasser; and the fraud-
ulent use of a ticket or pass issued to another person deprives the
user of the rights of a passenger. 10
Rules and Regulations.
It is not only the right, but the duty, of the carrier to make and
enforce reasonable rules and regulations to insure the safety, or-
derly conduct, and the comfort and convenience of its patrons. 11
To this end the following regulations have been held reasonable.
Forbidding passengers on railroad trains to ride upon the platforms,
baggage cars, or engines; 12 prohibiting the carriage of passengers
on freight trains; 13 to quell disturbances, to preserve order and de-
corum, and hence to use sound discretion in ejecting from its vehicles
all persons whose conduct is such as to render acts of indecency,
bash R. Co. v. Kingsley, 177 111. 558, 52 N. E. 931; Texas & N. O. R. Co. v.
Demilley (Tex. Civ. App.) 41 S. W. 147.
s Toledo, W. & W. Ry. Co. v. Beggs. 85 111. 80; Lillis v. Railway Co., 64
Mo. 464; Brown v. Railway Co., Id. 536. And see Robertson v. Railroad Co..
22 Barb. (N. Y.) 91; Gulf, C. & S. F. Ry. Co. v. Campbell, 76 Tex. 174, 13
S. W. 19; McVeety v. Railway Co., 45 Minn. 268, 47 X. W. 809; Toledo, W.
6 W. Ry. Co. v. Brooks, 81 111. 245; Great Northern Ry. Co. v. Harrison, 10
Exch. 376.
9 Union Pac. Ry. Co. v. Nichols, 8 Kan. 505. And see Higgins v. Railroad
Co., 36 Mo. 418; Trezona v. Railway Co. (Iowa) 77 N. W. 486; McGhee v.
Reynolds (Ala.) 23 South. 68; Illinois Cent. R. Co. v. Marlett, 75 Miss. 956, 23
South. 583.
10 Toledo, W. & W. Ry. Co. v. Beggs, 85 111. 80; Way v. Railway Co., G4.
Iowa, 48, 19 N. W. 828.
11 Day v. Owen, 5 Mich. 520; Chicago & N. W. R. Co. v. Williams, 55 111.
1S5; Hoffbauer v. Railroad Co., 52 Iowa, 342, 3 X. W. 121; State v. Chovin,
7 Iowa, 204; Hibbard v. Railroad Co., 15 N. Y. 455; Vedder v. Fellows, 20
N. Y. 126; Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21; Du Laurans v.
Railroad Co., 15 Minn. 49 (GiK 29); Gleason v. Transportation Co., 32 Wis.
85; Bass v. Railroad Co., 36 Wis. 450; State v. Overton, 24 N. J. Law, 435;
Brown v. Railroad Co., 4 Fed. 37, 7 Fed. 51; Ft. Scott, W. & W. Ry. Co. v.
Sparks, 55 Kan. 288, 39 Pac. 1032. Reasonableness of rule requiring station
to be kept open during certain hours. Louisville, X. A. & O. Ry. v. Wright,
18 Ind. App. 125, 47 N. E. 491.
12 O'Donnell v. Railroad Co., 59 Pa. St. 239; Houston & T. C. R. Co. v.
Onernmons, 55 Tex. 88; McMillan v. Railway Co., 172 Pa. St. 523, 33 Atl. 560;
Montgomery v. Railway Co., 24 App. Div. 454, 48 N. Y. Supp. 849.
is See ante, p. 1S7; Galaviz v. Railroad Co. (Tex. Civ. App.) 38 S. W. 234;
Houb.cn, E. & W. T. Ry. Co. v. Norris (Tex. Civ. App.) 41 S. W. 708.
77) THE TICKET AS EVIDENCE. 197
rudeness, or disturbance, either inevitable or probable. 14 And the
duty of anticipating and preventing danger, disorder,- and discom-
fort among its passengers is just as important as that of quelling
any of these elements after they have actually begun. 15 But the
carrier may not make foolish or unreasonable rules, as forbidding
passengers to pass from one car to another, or to change their
seats. 16
THE CONTRACT.
76. The contract of a public carrier of passengers will be
discussed under the following heads:
(a) The ticket as evidence.
(b) Compensation.
(c) Liability to passengers.
(d) Limitations of liability.
SAME THE TICKET AS EVIDENCE.
77. The prepayment of fare is a proper condition pre-
cedent to accepting a person for transportation, and
the carrier may further require the purchase and
presentation of a ticket before the passenger enters
the vehicle.
The carrier may properly require the purchase and presentation
of tickets before entering the car or other vehicle. 1 The ticket is a
receipt for the payment of fare to the point designated thereon, and
is merely evidence of the contract of carriage. 2 Its terms may be
i* Vinton v. Railroad Co., 11 Allen (Mass.) 304; Sullivan v. Railroad Co.,
14S Mass. 119, IS X. E. G78; Baltimore, P. & C. R. Co. v. McDonald, 68 Ind.
316: Peavy v. Railroad Co., SI Ga. 485, 8 S. E. 70; Chicago City Ry. Co. v.
Pelletier. 134 111. 120, 24 X. E. 770; Robinson v. Railway Co., 87 Me. 387,
32 Atl. 994.
1 5 Vinton v. Railroad Co., 11 Allen (Mass.) 304. But see Putnam v. Rail-
road Co., 55 N. Y. 10S.
1 s state v. Overton, 24 N. J. Law, 435, 441. And see South Florida R. Co.
v. Rhodes, 25 Fla. 40, 5 South. 633. Reasonableness a question for court.
Gregory v. Railway Co., 100 Iowa, 345, 69 X. W. 532.
76-77. i Cleveland. C. & C. R. Co. v. Bartram. 11 Ohio St. 457.
2 Rawson v. Railroad Co., 48 X. Y. 212; Quimby v. Vanderbilt, 17 N. Y.
198 COMMON CARRIER OF PASSENGERS. (Ch. 5
varied by parol evidence. 3 As between the conductor and passen-
ger, however, and the right of the latter to travel, the ticket pro-
duced must be conclusive evidence ; and the passenger must produce
it when called upon as the evidence of his right to the seat he
claims. 4 This ruling is based on experience and necessity, but does
not conclude the passenger in his right to recover under the actual
contract, if the latter is inconsistent with that expressed in the
ticket. 5 Thus, if the passenger has paid his fare to a point beyond
that called for by the ticket, and was compelled to pay a second time
for the additional distance, the excess could be recovered in a suit-
able action. 6
306; .Boice v. Railroad Co., 61 Barb. (N. Y.) 611; Barker v. Coflin, 31 Barb.
<N. Y.) 556; Elmore v. Sands, 54 N. Y. 512; Johnson v. Railroad Corp., 46
N. H. 213; Gordon v. Railroad Co., 52 N. H. 596; State v. Overton, 24 N. J.
Law, 435; Nevins v. Steamboat Co., 4 Bosw. (N. Y.) 225; Scott v. Railway
Co., 144 Ind. 125, 43 N. E. 133; Henderson r. Stevenson, L. R. 2 H. L. Sc. 470.
s Van Buskirk v. Roberts, 31 N. Y. 661; Northern R. Co. v. Page, 22 Barb.
<N. Y.) 130; Barker v. Coflin, 31 Barb. (N. Y.) 556; Nevins v. Steamboat Co.,
4 Bosw. (N. Y.) 225; Rawson v. Railroad Co., 48 N. Y. 212; Elmore v. Sands,
54 N. Y. 512; BroAvn v. Railroad Co., 11 Cnsh. (Mass.) 97; Johnson v. Rail-
road Corp., 46 N. H. 213; Crosby v. Railroad Co., 69 Me. 418; Burnham v.
Railway Co., 63 Me. 298. But see Hufford v. Railway Co., 53 Mich. 118, 18
N. W. 580.
4 Mosher v. Railway Co., 23 Fed. 326; Hall v. Railroad Co., 15 Fed. 57;
Petrie v. Railroad Co., 42 N. J. Law, 449; Atchison, T. & S. F. R. Co. v.
Gants, 38 Kan. 608, 17 Pac. 54; McKay v. Railway Co., 34 W. Va. 65, 11 S. E.
737; Rose v. Railroad Co., 106 N. C. 168, 11 S. E. 526; Bradshaw v. Railroad
Co., 135 Mass. 407; Hufford v. Railway Co., 53 Mich. 118, 18 N. W. 580;
Townsend v. Railroad Co., 56 .N. Y. 295; Chicago, B. & Q. R. Co. v. Griffin,
8 111. 499; McClure v. Railroad Co., 34 Md. 532; Shelton v. Railroad Co., 29
Ohio St. 214; Yorton v. Railway Co., 54 Wis. 234, 11 N. W. 482.
s Murdock v. Railroad Co., 137 Mass. 293; Muckle v. Railway Co., 79 Hun,
32, 29 N. Y. Supp. 732; Townsend v. Railroad Co., 56 N. Y. 295; Elliott v.
Railroad Co., 53 Hun, 78, 6 N. Y. Supp. 363; Frederick v. Railroad Co., 37
Mich. 342; Lake Erie & W. Ry. Co. v. Fix, 88 Ind. 381; Pennsylvania Co. v.
Bray, 125 Ind. 229, 25 N. E. 439; Pittsburgh, C., C. & St. L. Ry. Co. v.
Berryman, 11 Ind. App. 640, 36 N. E. 728; St. Louis, A. & T. Ry. Co. v.
Mackie, 71 Tex. 491, 9 S. W. 451; Appleby v. Railway Co., 54 Minn. 169, 55
N. W. 1117. But see Bradshaw v. Railroad Co., 135 Mass. 407.
e Frederick v. Railroad Co., 37 Mich. 342. In this case the plaintiff was not
allowed to recover against the company, as the action was not properly
Drought. In delivering the opinion of the court, Marston, J., said: "Where
77) THE TICKET AS EVIDEJCCE. 199
Provisions in the ticket to the following effect are binding on the
passenger: That the ticket is not assignable; 7 that coupons are not
good if detached; 8 that the ticket must be stamped for the return
trip; 9 that it is good on certain trains only; 10 that the ticket must
be used within a limited time lx . (but it is sufficient if the journey is
a passenger has purchased a ticket, and the conductor does not carry him ac-
cording to its terms, or if the company, through the mistake of its agent, has
given him the wrong ticket, so that he has been compelled to relinquish his
seat, or pay his fare a second time in order to retain it, he would have a rem-
edy against the company for a breach of the contract; but he would have to
adopt a declaration differing essentially from the one resorted to in this case."
See, also, Hufford v. Railway Co., 53 Mich. 118. 18 N. W. 580.
- Way v. Railway Co., 04 Iowa, 48, 19 N. W. 828; Post v. Railroad Co., 14
Neb. 110, 15 N. W. 225; Walker v. Railway Co., 15 Mo. App. 333; Drummond
v. Southern Pac. Co., 7 Utah, 118, 25 Pac. 733; Levinsou v. Railway Co.
(Tex. Civ. App.) 43 S. W. 1032; Rahilly v. Railway Co., 06 Minn. 153, OS N.
W. 853; Spencer v. Love joy, 96 Ga. 657, 23 S. E. 836.
s Boston & M. R. Co. v. Chipman, 140 Mass. 107, 14 N. E. 940; Norfolk &
W. R. Co. v. Wysor, 82 Ya. 250; Louisville, N. & G. S. R. Co. v. Harris, 9
Lea (Tenn.) ISO; Houston & T. C. R. Co. v. Ford, 53 Tex. 364. But see,
where coupons are detached by mistake, Wightman v. Railway Co., 73 Wis.
169. 40 N. W. 089. And compare Chicago, St. L. & P. R. Co. v. Holdridge, 118
Ind. 281, 20 N. E. 837; Rouser v. Railway Co., 97 Mich. 505, 56 N. W. 937;
Thompson v. Truesdale, 61 Minn. 129, 63 N. W. 259.
o Mosher v. Railway Co., 127 TJ. S. 390, 8 Sup. Ct. 1324; Boylan v. Rail-
road Co., 132 U. S. 146, 10 Sup. Ct. 50; Edwards v. Railway Co., 81 Mich.
364, 45 N. W. 827; Bowers v. Railroad Co., 158 Pa, St. 302, 27 Atl. 893;
Central Trust Co. v. Railway Co., 65 Fed. 332; Southern Ry. Co. v. Barlow,
104 Ga. 213. 30 S. E. 732; Houston & T. C. Ry. Co. v. Arey (Tex. Civ. App.)
44 S. W. 894.
10 Lake Shore & M. S. Ry. Co. v. Rosenzweig, 113 Pa. St 519, 6 Atl. 545;
Thorp v. Railroad Co., 61 Vt 378, 17 Atl. 791; McRae v. Railroad Co., 88
N. C. 526.
11 Hill v. Railroad Co., 63 N. Y. 101; Barker v. Coflin, 31 Barb. (N. Y.)
556; Boice v. Railroad Co., 01 Barb. (N. Y.) Oil; Wentz v. Railway Co., 3
Hun (N. Y.) 241; Boston & L. R. Co. v. Proctor, 1 Allen (Mass.) 267; State
v. Campbell, 32 N. J. Law, 309; Pennington v. Railroad Co., 02 Md. 95;
Lewis v. Railroad Co., 93 Ga. 225, 18 S. E. 650; Johnson v. Railroad Corp.,
46 X. H. 213; Rawitzky v. Railroad Co., 40 La. Ann. 47, 3 South. 387. But
the limitation must be reasonable for the journey, Texas & P. Ry. Co. v. Den-
nis, 4 Tex. Civ. App. 90, 23 S. W. 400; by statute, Dryden v. Railway Co., 00
Me. 512; Boyd v. Spencer, 103 Ga. 828, 30 S. E. 841; Trezona v. Railway Co.
(Iowa) 77 N. W. 486; Illinois Cent. R. Co. v. Marlett, 75 Miss. 950, 23 South.
200 COMMON CARRIER OF PASSENGERS. (Ch. 5
begun within the time limited; it need not be finished before the
time has expired; 12 and if there is no limitation, the ticket is good
at any time). 13 In the absence of an agreement, the passenger can-
not stop at an intermediate point, and afterwards continue to his
destination on the same ticket. 14
SAME COMPENSATION.
78. The carrier is entitled to charge a reasonable com-
pensation for the carriage of passengers, and may
require it to be prepaid.
A reasonable compensation for the carriage of passengers is a
proper charge, 1 but it must be uniform, and not the subject of un-
reasonable discrimination between passengers. 2 In the absence of
statute 3 it is regulated by custom. 4 It has already been stated that
583; Missouri, K. & T. Ry. Co. of Texas v. Murphy (Tex. Civ. App.) 35 S. W.
GG; Texas & N. O. R. Co. v. Powell, 13 Tex. Civ. App. 212, 35 S. W. 841.
i2Auerbach v. Railroad Co., 88 N. Y. 281; Lundy v. Railroad Co., 66 Cal.
191, 4 Pac. 1193; Gulf, C. & S. F. Ry. Co. v. Wright, 10 Tex. Civ. App. 179,
30 S. W. 294; Evans v. Railway Co., 11 Mo. App. 463; Texas & P. Ry. Co^v.
Dennis, 4 Tex. Civ. App. 90, 23 S. W. 400.
!3 Pennsylvania R. Co. v. Spicker, 105 Pa. St. 142. And see Dryden v.
Railway Co., 60 Me. 512; Boyd v. Spencer, 103 Ga. 828, 30 S. E. 841; Louis-
ville & N. R. Co. v. Turner, 100 Tenn. 213, 47 S. W. 223,
i* Hamilton v. Railroad Co., 51 N. Y. 100; Beebe v. Ay res, 28 Barb. (N. Y.)
275; Terry v. Railroad Co., 13 Hun (N. Y.) 359; Cheney v. Railroad Co., 11
Mete. (Mass.) 121; Oil Creek & A. R. Ry. Co. v. Clark, 72 Pa. St. 231; Diet-
rich v. Railroad Co., 71 Pa. St. 432; Vankirk v. Railroad Co., 76 Pa. St. 66;
Wyman v. Railroad Co., 34 Minn. 210, 25 N. W. 349; Pennsylvania R. Co.
v. Parry, 55 N. J. Law, 551, 27 Atl. 914; Cleveland, C. & C. R. Co. v. Bar-
tram, 11 Ohio St. 457; Drew v. Railroad Co., 51 Cal. 425; Breen v. Railroad
Co., 50 Tex. 43; Johnson v. Railroad Co., 63 Md. 106; Roberts v. Koehler,
30 Fed. 94; Coombs v. Reg., 26 Can. Sup. Ct. 13; Robinson v. Southern Pac.
Co.. 105 Cal. 526, 38 Pac. 94, 722.
78. i Spofford v. Railroad Co., 128 Mass. 326; McDuffee v. Railroad Co..
52 N. H. 430; Johnson v. Railroad Co., 16 Fla, 623.
2 Johnson v. Railroad Co., 16 Fla. 623; Atwater v. Railroad Co., 48 N. J.
Law, 55, 2 Atl. 803; Spofford v. Railroad Co., 128 Mass. 326. And see Hale.
Bailm. & Carr. p. 335.
- s Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155; Peik v. Railway Co., 94
* Spofford v. Railroad Co., 128 Mass. 326.
79) LIABILITY TO PASSENGERS. 201
a regulation requiring the purchase and presentation of tickets be-
fore entering the cars is a reasonable one. The passenger is not
obliged to tender the exact amount of his fare. The carrier must
furnish change in a reasonable amount. 5 Although the conductor
may require the surrender of the ticket, 6 he must, on demand, fur-
nish a check or other evidence of payment. Should the passenger
lose his ticket, he is entitled to a reasonable opportunity to find it; 7
but, failing to do so, he must pay again. 8
SAME LIABILITY TO PASSENGERS.
79. The carrier of passengers is bound to exercise the
highest degree of care possible in the circumstances
for the safety of the passenger.
D> </ree of Care.
While the public carrier of passengers is not, like the carrier of
goods, an insurer of their safety, yet the degree of care demanded of
U. S. 1G4; Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct. 832; Stone v. Trust
Co., 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191; Dow v. Beidelman, 125 U. S.
GSO, 8 Sup. Ct. 1028; Chicago, M. & St P. Ry. Co. v. Minnesota, 134 U. S.
418, 10 Sup. Ct. 462, 702; Georgia Railroad & Banking Co. v. Smith, 128
U. S. 174, 9 Sup. Ct. 47; St. Louis & S. F. Ry. Co. v. Gill, 54 Ark. 101, 15
S. W. 18.
s Barrett v. Railway Co., 81 Cal. 296. 22 Pac. 859. Cf. Curtis v. Railway Co.,
94 Ky. 573, 23 S. W. 363; Fulton v. Railway Co., 17 U. C. Q. B. 428. Tender
of $5 bill for 5-ceut fare not a reasonable tender. Muldowney v. Traction
Co., 8 Pa. Super. Ct. 335, 43 Wkly. Notes Cas. 52; Barker v. Railroad Co., 151
X. Y. 237. 45 X. E. 5r.O.
e Illinois Cent. R. Co. v. Whittemore, 43 111. 420; Havens v. Railroad Co.,
28 Conn. 69; Northern R. Co. v. Page, 22 Barb. (N. Y.) 130; Van Dusan v.
Railway Co., 97 Mich. 439, 56 N. W. 848. But the carrier cannot take up
the ticket and refuse to carry the passenger. Yankirk v. Railroad Co.,
76 Pa. St. 66.
" Maples v. Railroad Co., 38 Conn. 557: Knowles v. Railroad Co., 102 N. C.
59, 9 S. E. 7; International & G. N. R. Co. v. Wilkes, 68 Tex. 617, 5 S. W.
491.
s Standish v. Steamship Co., Ill Mass. 512; Cresson v. Railroad Co., 11
Phila. (Pa.) 597; Crawford v. Railroad Co., 26 Ohio St. 580; Atwater v.
Railroad Co., 48 N. .1. Law, 55. 2 Atl. 803; International & G. N. R. Co. v.
Wilkes, 68 Tex. 617, 5 S. W. 491. But see Pullman Palace-Car Co. v. Reed,
75 111. 125.
202 COMMON CARRIER OF PASSENGERS. (Ch. 5
him is so great that it falls little short of a warranty. 1 The duty
becomes more absolute in proportion to the risk, and the carrier
must exercise as much care and diligence as an expert is accustomed
to use. 2 In the case of Christie v. Griggs, 3 Mansfield, C. J., ex-
presses the extent of the obligation to be that, "as far as human care
and foresight could go, he would provide for their safe conveyance";
and this definition, or its equivalent, is very generally in use to-day.
But in using this definition it must not be supposed that the law re-
quires the carrier to exercise every device that the ingenuity of man
can conceive. Such an interpretation would act as an effectual bar
to the business of transporting people for hire. Thus, in operating
trains, the carrier is not required to use iron or granite cross-ties
because such ties are less liable to decay, and hence safer, than
wood; nor upon freight trains is he obliged to use air brakes, beli
pulls, and a brakeman upon each car. 4 It is sufficient if the car-
rier omits nothing essential or conducive to the safety of passengers
79. i Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291; Chicago & A. R.
Co. v. Byrum, 153 111. 131, 38 N. E. 578; Chicago, P. & St. L. Ry. Co. v. Lewis,
145 111. 67, 33 N. E. 960; Spellman v. Rapid-Transit Co., 36 Neb. 890, 55 N. W.
270; Gulf, C. & S. F. Ry. Co. v. Higby (Tex. Civ. App.) 26 S. W. 737; Doug-
lass v. Railway Co., 91 Iowa, 94, 58 N. W. 1070; Bischoff v. Railway Co.,
121 Mo. 216, 25 S. W. 908; Wilson v. Railroad Co., 26 Minn. 278, 3 N. W. 333;
International & G. N. Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 391; Taylor v.
Pennsylvania Co., 50 Fed. 755; Jackson v. Railway Co., 118 Mo. 199, 24 S. TV.
192; Gulf, C. & S. F. Ry. Co. v. Stricklin (Tex. Civ. App.) 27 S. W. 1093;
Dunn v. Railway Co., 58 Me. 187; Houston, E. & W. T. Ry. Co. v. Richards
(Tex. Civ. App.) 49 S. W. 687; Fitchburg R. Co. v. Nichols, 29 C. C. A. 500.
85 Fed. 945; Illinois Cent. R. Co. v. Beebe, 174 111. 13, 50 N. E. 1019; Smedley
v. Railway Co., 184 Pa. St. 620, 39 Atl. 544; St. Louis S. W. Ry. Co. v. Mc-
Cullough (Tex. Civ. App.) 45 S. W. 324; Cincinnati, N. O. & T. P. Ry. Co. v.
Vivion (Ky.) 41 S. W. 580. As to operation of horse-car lines, Noble v. Rail-
way Co., 98 Mich. 249, 57 N. W. 126; Watson v. Railway Co., 42 Miuu. 46,
43 N. W. 904; Keegan v. Railroad Co., 34 App. Div. 297, 54 N. Y. Supp. 391;
Parker v. Railway Co., 69 Mo. App. 54; Stierle v. Railway Co., 156 N. Y.
70, 50 N. E. 419; Koehne v. Railway Co., 32 App. Div. 419, 52 N. Y. Snpp.
1088; Brown v. Railway Co., 16 Wash. 465, 47 Pac. 890; Bartnik v. Railroad
Co., 36 App. Div. 246, 55 N. Y. Supp. 266.
2 Whart. Neg. 627-637. But see Carrico v. Railway Co., 35 W. Va, 389,
14 S. E. 12.
3 2 Camp. 79.
* Indianapolis & St L. R. Co. v. Horst, 93 U. S. 291.
LIABILITY TO PASSENGERS. 203
which can be done or employed consistently with the most approved
methods of transacting similar business. 5
In Pennsylvania Co. v. Roy 6 the court said: "He [the carrier] is
responsible for injuries received by passengers in the course of their
transportation which might have been avoided or guarded against
by the exercise upon his part of extraordinary vigilance, aided by
the highest skill. And this caution and vigilance must necessarily
be extended to all agencies or means employed by the carrier in the
transportation of the passenger. Among the duties resting upon
him is the important one of providing cars or vehicles adequate
that is, sufficiently secure as to strength and other requisites for
the safe conveyance of passengers. That duty the law enforces with
great strictness. For the slightest negligence or fault in this re-
gard, from which injury results to the passenger, the carrier is liable
in damages."
Latent Defects.
To relieve the carrier from responsibility, a latent defect must be
such only as no reasonable degree of skill and foresight could guard
against. 7 He is not an insurer, and therefore is not liable for those
defects in appliances which no human care or skill could either have
detected or prevented. 8 A seeming limitation upon this rule as to
latent defects exists in attributing the negligence of the manufactur-
er to the carrier, but it is for the negligence only of the manufac-
turer that the carrier is liable. If the defect in manufacture is one
which could not have been discovered or avoided by known tests or
5 Tuller v. Talbot, 23 111. 357; Pittsburg, C. & St. L. Ry. Go. v. Thompson,
56 111. 138; Dunn v. Railway Co., 58 Me. 187; Hegeman v. Railroad Corp.,
13 X. Y. 9; Kansas Pac. Ry. Co. v. Miller, 2 Colo. 442; Pershing v. Railway
Co., 71 Iowa, 561, 32 X. W. 488.
e 102 U. S. 451, 456.
7 Ingalls v. Bills, 9 Mete. (Mass.) 1; Palmer v. Canal Co., 120 N. Y. 170.
24 X. B. 302. See, also, Frink y. Potter, 17 111. 406; Galena & C. U. R. Co.
v. Fay, 16 111. 558; Sawyer v. Railroad Co., 37 Mo. 24; Derwort v. Loonier.
21 Conn. 245; Mobile & O. R. Co. v. Thomas, 42 Ala. 672; Anthony v. Rail-
road Co., 27 Fed. 724; Carter v. Railway Co., 42 Fed. 37; Frink v. Coe, 4 G.
Greene (Iowa) 555; Western Ry. of Alabama v. Walker, 113 Ala. 267, 22
South. 182; Texas & P. Ry. Co. v. Buckalew (Tex. Civ. App.) 34 S. W. 165.
s Ingalls v. Bills, 9 Mete. (Mass.) 1; Palmer v. Canal Co., 120 N. Y. 170, 24
X. E. 302.
204 COMMON CARRIER OF PASSENGERS. (Ch. 5
methods, either in use or process of manufacture, no liability
attach to either the carrier or the manufacturer; but, if the flaw was
discoverable by the maker, his negligence in failing to detect it will
be attributed to the carrier. 9 Hence it is now universally agreed
that the duty to furnish a "roadworthy" vehicle is not absolute. 10
Unavoidable Dangers.
In all modes of conveyance, whether by land or water, by elec-
tricity or steam, there are certain added dangers which cannot be
entirely guarded against or overcome, and which the traveler must
assume. ''We are surrounded by dangers at home and abroad, and
they are greater when we travel than when we remain stationary.
In some modes of travel these dangers are greater than in others.
They may be greater on water than on land; on a fast line of stages
than on a slow one. And every passenger must make up his mind
to meet the risks incident to the mode of travel he adopts which
cannot be avoided by the utmost degree of care and skill in the prep-
aration and management of the means of conveyance. This is the
only guaranty given by the proprietor of the line. 11 Thus, when a
steamboat was just leaving the dock, and a man fell overboard. As
the cry was being raised, the passengers with one accord rushed to
the side of the boat, and plaintiff was crowded through the gangway,
which had not yet been closed, and fell into the water. It was held
that the carrier could not reasonably anticipate and prevent such
an accident. 12
sHegeman v. Railroad Corp., 13 X. Y. 9; Caldwell v. Steamboat Co., 47
N. Y. 282; Carroll v. Railroad Co., 58 N. Y. 126; Curtis v. Railroad Co., 18
X. Y. 534, 538; Perkins v. Railroad Co., 24 X. Y. 196, 219; Illinois Cent. R.
Co. v. Phillips, 49 111. 234; Bartnik v. Railroad Co., 3G App. Div. 246, 55 X. Y.
Supp. 266; Arkansas Midland Ry. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550:
Houston, E. & W. T. Ry. Co. v. Xorris (Tex. Civ. App.) 41 S. W. 708; Rich-
mond Railway & Electric Co. v. Bowles, 92 Va. 738, 24 S. E. 388. But see
Grand Rapids & I. R. Co. v. Huntley. 38 Mich. 537.
10 Readhead v. Railroad Co., L. R. 2 Q. B. 412, affirmed in L. R. 4 Q. B. 379;
Carroll v. Railroad Co., 58 X. Y. 126; Witsell v. Railway Co., 120 X. C. 557,
27 S. E. 125; Christie v. Griggs, 2 Camp. 79.
11 McKinney v. Xeil, 1 McLean, 540. Fed. Cas. Xo. 8,865.
12 Cleveland v. Steamboat Co., 68 X. Y. 306, 89 N. Y. 627, and 125 N. Y. 299,
26 X. E. 327; Houston, E. & W. T. Ry. Co. v. Richards (Tex. Civ. App.) 49 S.
W. 687; Denver & R. G. R. Co. v. Andrews, 11 Colo. App. 204, 53 Pac. 518.
79) LIABILITY TO PASSENGERS. 205
Neither will the carrier be liable for defective conditions which
are observable, and which the passenger accepts as incident to that
manner of transportation; as the failure to place a chain across the
rear of a caboose attached to a freight train, and which was not pro-
vided or equipped for passengers. 13
Operation of Trains, etc.
The carrier is bound to exercise the highest degree of care, in view
of all the circumstances, to avoid injury to passengers in the oper-
ation of its means of conveyance, avoiding a dangerous rate of
speed, 14 sudden starts and stops, 15 or danger from curves. 16 It is
the duty of the carrier to properly announce stations, 17 and to use
due care with reference to the physical and mental condition of an
accepted passenger. Hence the carrier must take care of one who
is decrepit or otherwise incapacitated, 18 even if the incapacity arises
is Chicago, B. & Q. R. Co. v. Hazzard, 26 111. 373. See, also, San Antonio
& A. P. Ry. Co. v. Robinson, 79 Tex. 608, 15 S. W. 584.
i* Andrews v. Railway Co., 86 Iowa, 677, 53 N. W. 399; Chicago, P. &
St. L. Ry. Co. v. Lewis, 145 111. 67, 33 N. E. 960; Pennsylvania Co. v. New-
meyer, 129 Ind. 401, 28 N. E. 860; Willmott v. Railway Co., 106 Mo. 535, 17
S. W. 490; Mexican Cent. Ry. Co. v. Lauricella, 87 Tex. 277, 28 S. W. 277;
Chicago, R. I. & P. Ry. Co. v. Martin, 59 Kan. 437, 53 Pac. 461; Schmidt v.
Railroad Co., 26 App. Div. 391, 49 N. Y. Supp. 777.
15 Holmes v. Traction Co., 153 Pa. St. 152, 25 Atl. 640; Yarnell v. Railway
Co., 113 Ma. 570, 21 S. W. 1; North Chicago St. R. Co. v. Cook, 145 111. 551,
33 N. E. 958; Bowdle v. Railway Co., 103 Mich. 272, 61 N. W. 529; Poole v.
Railroad Co., 89 Ga. 320, 15 S. E. 321; Cassidy v. Railroad Co., 9 Misc. Rep.
275. 29 N. Y. Supp. 724; Hill v. Railway Co., 158 Mass. 458, 33 N. E. 582;
Chicago & A. R. Co. v. Arnol, 144 111. 261, 33 N. E. 204. As to street cars when
passengers are alighting: Cawfleld v. Railway Co., Ill N. C. 597, 16 S. E. 703,-
Chicago, B. & Q. R. Co. v. Landauer, 36 Neb. 642, 54 X. W. 976; Robinson v.
Railway Co., 157 Mass. 224, 32 N. E. 1; Washington & G. R. Co. v. Harmon's
Adm'r, 147 U. S. 571, 13 Sup. Ct. 557; McCurrie v. Pacific Co., 122 Oil. 558, 55
Pac. 324; Pomeroy v. Railroad Co., 172 Mass. 92, 51 N. E. 523; Hassen v. Rail-
road Co., 34 App. Div. 71, 53 N. Y. Supp. 1069.
16 Lynn v. Southern Pac. Co., 103 Cal. 7, 36 Pac. 1018; Francisco v. Rail-
road Co., 78 Hun, 13, 29 N. Y. Supp. 247; Brusch v. Railway Co., 52 Minn. 512,
55 N. W. 57.
i" Pennsylvania Co. v. Hoagland, 78 Ind. 203; Pennsylvania R. Co. v. As-
pell, 23 Pa. St. 147; Chicago, R. I. & T. Ry. Co. v. Boyles, 11 Tex. Civ. App.
522, 33 S. W. 247.
isWeightman v. Railway Co., 70 Miss. 563, 12 South. 586; Meyer v. Rail-
way Co., 4 C. C. A. 221, 54 Fed. 116; Sawyer v. Dulany, 30 Tex. 479; Sheri-
206 COMMON CARRIER OK PASSENGERS. (Ch. 5
from intoxication. 13 In the case of railroads, the roadbed and tracks
are a part of the equipment, and in their construction and mainte-
nance the carrier is held to the same extraordinary diligence as in
the management of trains. 20 The duty of careful and frequent in-
spection is absolute. 21
Liability for Negligence of Connecting Carrier.
The broad basis of public policy on which the liability of common
carriers of passengers has been established requires that they should
be held responsible for the negligence of any of the agencies which they
may employ in the conduct of their business. Agreeably to this doc-
trine, if the railway carrier transports its passengers in the vehicles
or over the tracks of any other line, it assumes and is responsible
for any negligence of such other carrier which is material in caus-
ing injury to its own passengers. 22 Nor is the concurring negli-
gence of any third party a defense in an action against the carrier,
if the negligence of the latter in any degree contributed to cause the
injury complained of. 23 When a passenger is injured by the- colli-
dan v. Railroad Co., 36 N. Y. 39; Philadelphia City Pass. Ry. Co. v. Hassard,
75 Pa. St. 367; Allison v. Railroad Co., 42 Iowa, 274; Jeffersonville, M. & I. R.
Co. v. Riley, 39 Ind. 568. 584; Indianapolis, P. & C. R. Co. v. Pitzer, 109 Ind.
179, 6 N. E. 310, 10 N. E. 70; Croom v. Railway Co., 52 Minn. 296, 53 N. W.
1128; Spade v. Railroad Co., 172 Mass. 488, 52 X. E. 747; Haug v. Railway
Co. (X. D.) 77 N. W. 97; International & G. N. R. Co. v. Gilmer (Tex. Civ.
App.) 45 S. W. 1028.
i Fisher v. Railroad Co., 39 W. Va. 366, 19 S. E. 578.
20 Knight v. Railroad Co., 56 Me. 234; Toledo, W. & W. R. Co. v. Apper-
son, 49 111. 480; Nashville & C. R. Co. v. Messino, 1 Sneed (Tenn.) 220. Ex-
pansion of rails improperly laid. Reed v. Railroad Co., 56 Barb. (N. Y.) 493;
Arkansas Midland Ry. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550; Lynch v.
Railroad Co., 8 App. Div. 458, 40 N. Y. Supp. 775; Houston, E. & W. T. Ry.
Co. v. Xorris (Tex. Civ. App.) 41 S. W. 708.
21 Taylor v. Railway Co., 48 N. H. 304; Holyoke v. Railway Co., Id. 541;
Curtiss v. Railroad Co., 20 Barb. (X. Y.) 282, affirmed in 18 N. Y. 534; Toledo,
P. & W. Ry. Co. v. Conroy, 68 111. 560.
22 Buxton v. Railway Co., L. R. 3 Q. B. 549; Candee v. Railroad Co., 21
Wis. 589; Schopman v. Railroad Corp., 9 Cush. (Mass.) 24; Thomas v. Rail-
way Co., L. R. 5 Q. B. 226; Great Western Railway Co. v. Blake, 7 Hurl. &
X". 087. So, also, where the track ran over a public bridge. Birmingham v.
Railroad Co. (Sup.) 14 N. Y. Supp. 13. And see Hannibal & St. J. R. Co. v.
Martin. Ill 111. 219.
zs Eaton v. Railroad, 11 Allen (Mass.) 500.
79) LIABILITY TO PASSENGERS. 207
sion of trains of different carriers, he may maintain his action
against either or both. 24
Wrongful Acts of Agents, Fellow Passengers, and Others.
As has been already stated, the carrier is liable for the wrongful
acts of its agents or servants done within the course of their employ-
ment. 25 Although there is no privity existing between the carrier
and passenger whereby the former becoines liable for the wrongful
acts of the latter, yet, by reason of the circumstances and the au-
thority which he is bound to exercise, the carrier must protect hi&
passengers against the violence and improper conduct of fellow pas-
sengers or outsiders, so far as he is able to do so in the exercise of
reasonable care and foresight. 26 And so, if a passenger receives an
injury, which might have been reasonably anticipated, from one who
is improperly received, or permitted to continue in the vehicle, the
carrier is responsible. 27
Stationed Facilities.
In providing, equipping, and maintaining stational facilities and
appliances the carrier is bound to exercise only ordinary care in view
of the dangers to be apprehended. 28 Although the carrier is not
24 Cuddy v. Horn, 46 Mich. 596, 10 N. W. 32; Flaherty v. Railway Co.. 39
Minn. 328, 40 N. W. 160; Tompkins v. Railroad Co., 66 Cal. 163, 4 Pac. 1165;
Colegrove v. Railroad Co., 20 N. Y. 492; Central Pass. Ry. Go. v. Kuhn, 86
Ky. 578, 6 S. W. 441; Holzab v. Railroad Co., 38 La. Ann. 185; Union Railway
& Transit Co. v. Schacklett, 19 111. Apo. 145.
25 See ante. pp. 167-171.
2s Pittsburgh, Ft. W. & C. R. Co. v. Hinds, 53 Pa. St. 512; New Orleans,.
St. L. & C. R. Co. v. Burke, 53 Miss. 200; Felton v. Railroad Co., 69 Iowa, 577,
29 X. W. 618; Britton v. Railroad Co., 88 N. C. 536; Putnam v. Railroad Co.,
55 N. Y. 108; Batton v. Railroad Co., 77 Ala. 591; Chicago & A. R. Co. v.
Pillsbury, 123 111. 9, 14 X. E. 22; Pittsburgh & C. R. Co. v^ Pillow, 76 Pa. St.
510.
27 Putnam v. Railroad Co., 55 X. Y. 108; Flint y. Transportation Co., 34
Conn. 554; Pittsburgh, Ft. W. & C. Ry. Co. v. Hinds, 53 Pa. St. 512; Flint
v. Transportation Co., 6 Blatchf. 158, Fed. Cas. Xo. 4,873; McDonnell v. Rail-
road Co.. 35 App. Div. 147, 54 X. Y. Supp. 747; Exton v. Railroad Co. (N. J. Sup.)
42 A. 486; Wood v. Railroad Co. (Ky.) 42 S. W. 349; Bailey v. Railroad Co.
(Ky.) 44 S. W. 105. Acts of third persons. Texas & P. Ry. Co. v. Jones (Tex.
Civ. App.) 39 S. W. 124; Murphy v. Railway [1897] 2 Ir. 301.
28 Kelly v. Railway Co., 112 X. Y. 443, 20 X. E. 383; Palmer v. Pennsyl-
vania Co., Ill X. Y. 488, 18 X. E. 859; Moreland v. Railroad Co., 141 Mass..
208 COMMON CARRIER OF PASSENGERS. (Ch. 5
held to so high a degree of care in these matters as in the act of
transportation, it is still his duty to see that all reasonable precau-
tions are taken to insure both the safety and comfort of persons who
are on the premises as passengers. Approaches to the station and
platforms must be properly built, and maintained in good order. 29
Ordinarily, the carrier is not bound to place platforms on both sides
of the track; 30 and, if the platform is reasonably suitable, the car-
rier will not be liable to a passenger who is accidentally injured upon
it. 31 The failure to properly light the approaches, platforms, and
station, 32 to allow snow and ice 33 or other obstructions 34 to accu-
mulate and remain thereon, have been held to constitute actionable
negligence. And, even if the approaches are somewhat remote, the
duty to maintain them in a safe condition still exists. Thus, the car-
rier was held liable for the death of one who, in approaching the
31, 6 X. E. 225; Chicago & G. T. Ry. Co. v. Stewart, 77 111. App. GO; Finseth
v. Railway Co., 32 Or. 1, 51 Pac. 84.
2 Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315; Hulbert v. Railroad
Co., 40 N. Y. 145; Warren v. Railroad Co., 8 Allen (Mass.) 227; Union Pac:
Ry. Co. v. Sue, 25 Neb. 772, 41 X. W. 801; Liscomb v. Transportation Co., G
Lans. (X. Y.) 75; Pennsylvania Co. v. Marion, 123 Ind. 415, 23 X. E. 973; To-
ledo, W. & W. Ry. Co. v. Grush, 67 111. 262 ; Alabama G. S. Ry. Co. v. Cog-
gins, 88 Fed. 455, 32 C. C. A. 1; Illinois Cent. R. Co. v. Treat, 75 111. App. 327;
Louisville & X. R. Co. v. Keller (Ky.) 47 S. W. 1072; Ayers v. Railroad Co..
158 X. Y. 254, 53 X. E. 22; Trinity & S. Ry. Co. v. O'Brien (Tex. Civ. App.) 40
S. W. 389; Union Pac. R. Co. v. Evans, 52 Xeb. 50, 71 X. W. 1062.
so Michigan Cent. R. Co. v. Coleman, 28 Mich. 440.
si Stokes v. Railroad Co., 107 X. C. 178, 11 S. E. 991; Walthers v. Railway
Co., 72 111. App. 354.
32 Xicholson v.'Railway Co., 3 Hurl. & C. 534; Jamison v. Railroad Co., 55
Cal. 593; Peniston v. Railroad Co., 34 La. Ann. 777; Patten v. Railway Co.,
32 Wis. 524, 36 Wis. 413; Beard v. Railroad Co., 48 Vt. 101; Buenemann v.
Railway Co., 32 Minn. 390, 20 X. W. 379; Dice v. Locks Co., 8 Or. 60; Louis
ville & X. R. Co. v. Ricketts (Ky.) 37 S. W. 952.
33 Memphis & C. R. Co. v. Whitfield, 44 Miss. 466; Weston v. Railroad Co.,
42 X. Y. Super. Ct. 156; Seymour v. Railway Co., 3 Biss. 43, Fed. Gas. Xo.
12,685; Waterbury v. Railway Co., 104 Iowa, 32, 73 X. W. 341.
s* Osborn v. Ferry Co., 53 Barb. (X. Y.) 629; Martin v. Railway Co.. 16 C.
B. 179. Holes in platform. Knight v. Railroad Co., 56 Me. 234; Chicago &
X. W. Ry. Co. v. Fillmore, 57 111. 265; Liscomb v. Transportation Co.. G Lans.
(X. Y.) 75. Passengers obliged to cross tracks. Keating v. Railroad Co., 3
Lans. (X. Y.) 469; Baltimore & 0. B. Co. v. State, 60 Md. 449; Klein v. Jew-
ett, 2U X. J. Eq. 474.
79) LIABILITY TO PASSENGERS. 209
station, was killed by falling off a bridge erected by the company as
a means of more convenient access to its depot. 35
The same rules apply to carriers by water in the provision and
maintenance of suitable wharves 36 and gang planks. 37 If, however,
the carrier has observed ordinary precautions for the safety of the
passenger in and about its stations and approaches, its duty is per-
formed, and it is not bound to anticipate or guard against the failure
of the passenger to use ordinary care on his part. 38
Liability of Lessees and Trustees.
A common carrier of passengers cannot escape liability for the
nonperformance of its duties by transferring its business and prop-
erties to the hands of a lessee or trustee, unless it is done with leg-
islative sanction. 39 It will, therefore, in the absence of such author-
ity, be liable to passengers for injuries sustained by them through
the negligence of a lessee 40 or trustee which it has selected, 41 or for
the negligence of any other person or body of persons to whom it
has delegated the transaction of its business or the performance of
its duties, 42 even if such delegation is merely temporary, and for a
specific purpose. 43 In such cases a joint or several action may also
be maintained against the representative of the carrier. 44
ss Longmore v. Railway, 19 C. B. (N. S.) 183.
se Knight v. Railroad Co., 56 Me. 234; Bacon v. Steamboat Co., 90 Me. 46,
3* Atl. 328.
37 Hrebrik v. Carr, 29 Fed. 298; Croft v. Steamship Co. (Wash.) 55 Pac. 42.
ss Sturgis v. Railway Co., 72 Mich. 619, 40 X. W. 914; Bennett v. Railroad
Co., 57 Conn. 422, 18 Atl. 668.
so Thomas v. Railroad Co., 101 U. S. 71; New York & M. L. R. Co. v. Wi-
nans, 17 How. 30; Nugent v. Railroad Co., 80 Me. 62, 12 Atl. 797; Pennsyl-
vania R. Co. v. St. Louis, A. & T. H. R. Co., 118 U. S. 290, 6 Sup. Ct. 1094;
Gulf, C. & S. F. Ry. Co. v. Morris, 67 Tex. 692, 4 S. W. 156; Railway Co. v.
Brown, 17 Wall. 450.
40 International & G. N. R. Co. v. Dunham, 68 Tex. 231, 4 S. W. 472.
41 Naglee v. Railroad Co., 83 Va. 707, 3 S. E. 369.
42 Littlejohn v. Railroad Co., 148 Mass. 478, 20 N. E. 103; Peters v. Ry-
lands, 20 Pa. St. 497.
43 Chattanooga, R. & C. R. Co. v. Liddell, 85 Ga. 482, 11 S. E. 853.
44 Davis v. Railroad Co., 121 Mass. 134; International & G. N. R. Co. v.
Dunham. 68 Tex. 231, 4 S. W. 472; Ingersoll v. Railroad Co., 8 Allen (Mass.)
438.
BAR.NEG. 14
210 COMMON CARRIER OF PASSENGERS. (Ch. 5
80. LIABILITY FOR DELAY A public carrier of pas-
sengers is bound to use due diligence in transport-
ing them according to published schedule time, and
is liable to them for damages occurring by reason
of its failure in that respect.
The published time-table is a part of the contract made with all
persons who apply for transportation in accordance therewith. 1 If
changes are made in the time-table, the same publicity should be
given to such alteration as to the original publication. If the origi-
nal time-table was published in a newspaper, the mere posting of a
notice in the carrier's office would not be sufficient notice of a change
of time to excuse the carrier. 2 It has, however, been held that, even
after the sale of the ticket, the carrier has the right, on giving rea-
sonable notice, to vary the running time of its trains. 3 But, when
the transportation has actually begun, the carrier must use due dili-
gence to conform to schedule time, and will be liable to the passen-
ger for damage caused by any delay arising through its negligence;
otherwise, if it occurs through the act of God, 4 unless the carrier has
made a special contract to carry within a definite time. 5
Injuries to Persons not Passengers.
Towards all other persons, not passengers, with whom the carrier
is brought in contact, he is bound to exercise no more than ordinary
80. i Sears v. Railroad Co., 14 Allen (Mass.) 433; Savannah, S. & S. R.
Co. v. Bonaud, 58 Ga. 180; Heirn v. McCaughan, 32 Miss. 17; Hawcroft v.
Railway Co., 8 Eng. Law & Eq. 362; Hamlin v. Railway Co., 1 Hurl. & N. 408.
2 Sears v. Railroad Co., 14 Allen (Mass.) 433.
s id.
* Quimby v. Vanderbilt, 17 N. Y. 306; Williams v. Same, 28 N. Y. 217;
Weed v. Railroad Co., 17 N. Y. 362; Van Buskirk v. Roberts, 31 N. Y. 601;
Eddy v. Harris, 78 Tex. 661, 15 S. W. 107; Alabama & V. Ry. Co. v. Purnell,
69 Miss. 652, 13 South. 472; Cobb v. Howard, 3 Blatchf. 524, Fed. Cas. No.
2,924; Houston, E. & W. T. Ry. Co. v. Rogers (Tex. Civ. App.) 40 S. W. 201;
Hamlin v. Railway Co., 1 Hurl. & N. 408; Hobbs v. Railway Co., L. R. 10
Q. B. 111.
s Walsh v. Railway Co., 42 W T is. 23. And see, also, Williams v. Vander-
bilt, 28 N. Y. 217; Ward v. Same, 4 Abb. Dec. (N. Y.) 521; Watson v. Duy-
kinck, 3 Johns. (N. Y.) 335; Dennison v. The Wataga, 1 Phila. (Pa.) 468;
Brown v. Harris, 2 Gray (Mass.) 359; Porter v. The New England, 17 Mo.
290; West v. The Uncle Sam, 1 McAll. 505, Fed. Cas. No. 17,427.
30) LIABILITY FOR DELAY. 211
care. Thus, persons coming to a railroad station to escort arriving
or departing passengers do so on the implied invitation of the car-
rier, who owes them the duty of ordinary care only as to stational
facilities. 6 Hackmen who bring passengers to the station are
entitled to the same degree of care, 7 and employe's of another car-
rier, rightfully there in the discharge of their duties. 8 And if the
escort of a passenger is known to be on the train, 9 it is the duty of
the carrier to protect him from sudden startings, and to give the
customary signals. 10
a McKone v. Railroad Co., 51 Mich. 601, 17 N. W. 74; Dowd v. Railway Co.,
84 Wis. 105, 54 N. W. 24; Doss v. Railroad Co., 59 Mo. 27; Little Rock & Ft. S.
Ry. Co. v. Lawton, 55 Ark. 428, 18 S. W. 543; Langan v. Railway Co., 72
Mo. 392; Stiles v. Railroad, 65 Ga. 370; Tobin v. Railroad Co., 59 Me. 183;
Yarnell v. Railroad Co., 113 Mo. 570, 21 S. W. 1; Hamilton v. Railway Co.,
64 Tex. 251. This case goes to the extreme length of holding that the facilities
should be absolutely "safe," followed in Texas & P. Ry. Co. v. Best, 66 Tex.
116, 18 S. W. 224; Lucas v. Railroad Co., 6 Gray (Mass.) 64; Griswold v. Rail-
road Co., 64 Wis. 652, 26 N. W. 101; Missouri, K. & T. Ry. Co. v. Miller, 8
Tex. Civ. App. 241, 27 S. W. 905; Gautret v. Egerton, L. R. 2 O. P. 371.
7 Tobin v. Railroad Co., 59 Me. 183.
Catawissa R. Co. v. Armstrong, 49 Pa. St 186; Philadelphia, W. & B.
R. Co. v. State, 58 Md. 372; Illinois Cent. R. Co. v. Frelka,'110 111. 498; Zeig-
ler v. Railroad Co., 52 Conn. 543; Pennsylvania Co. v. Gallagher, 40 Ohio
St. 637; In re Merrill, 54 Vt. 200; Vose v. Railway Co., 2 Hurl. & N. 728.
And see, as to consignees and their agents personally assisting in the recep-
tion and delivery of freight, Foss v. Railway Co., 33 Minn. 392, 23 N. W. 553;
Holmes v. Railway Co., 4 Exch. 254; Watson v. Railway Co., 66 Iowa, 164,
23 N. W. 380; Illinois Cent. R. Co. v. Hoffman, 67 111. 287; Xewson v. Rail-
road Co., 29 N. Y. 383; New Orleans, J. & G. N. R. Co. v. Bailey, 40 Miss.
395; Shelby ville L. B. R. Co. v. Lewark, 4 Ind. 471; Dufour v. Railroad Co.,
67 Cal. 319, 7 Pac. 769; Mark v. Railway Co., 32 Minn. 208, 20 N. W. 131;
Goldstein v. Railway Co., 46 Wis. 404, 1 N. W. 37; Burns v. Railroad Co., 101
Mass. 50; Rogstad v. Railway Co., 31 Minn. 208, 17 N. W. 287.
o Coleman v. Railroad Co., 84 Ga. 1, 10 S. E. 498; Griswold v. Railroad Co.,
64 Wis. 652, 26 N. W. 101; McLarin v. Railroad Co., 85 Ga. 504, 11 S. E. 840.
10 Doss v. Railroad Co., 59 Mo. 27; Johnson v. Railway Co., 53 S. C. 303,
31 S. E. 212; International & G. N. R. Co. v. Satterwhite (Tex. Civ. App.)
47 S. W. 41; Id., 38 S. W. 401; Missouri, K. & T. Ry. Co. v. Miller (Tex.
Civ. App.) 39 S. W. 583.
212 COMMON CARRIER OF PASSENGERS. (Ch. 5
SAME LIMITATION OF LIABILITY.
51. The prevailing doctrine in this country denies the right
of the common carrier of passengers to place any
limitation upon his liability for the result of his
negligence or that of his servants.
"It is now well settled by the great weight of authority that the
-carrier of passengers cannot, even by special contract, relieve him-
self in any degree from liability for injuries caused to his passengers
iby the negligence of himself or his servants. 1 "Public policy forbids
that he should be relieved by special agreement from that degree
of diligence and fidelity which the law has exacted in the discharge
of his duties." 2 In some courts a distinction has been made in the
case of gratuitous passengers permitting a limitation, by express
contract, of liability for anything less than gross negligence. 3 In
commenting on this point, Mr. Justice Grier said: "And whether
consideration for such transportation be pecuniary or otherwise,
81. i Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1; Jacobus v.
TRailway Co., 20 Minn. 125 (Gil. 110); Rose v. Railroad Co., 39 Iowa, 246;
Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315; Indiana Cent. Ry. Co. v.
iMundy, 21 Ind. 48; School Dist. in Medfield v. Boston, H. & E. R. Co., 102
ZSIass. 552; Empire Transp. Co. v. Wamsutta Oil-Refining & Mining Co., 63
Ja. St. 14; Flinn v. Railroad Co., 1 Houst. (Del.) 469; Virginia & T. R. Co.
v. Sayers, 26 Grat. (Va.) 328; Sager v. Railroad Co., 31 Me. 228; Mobile &
O. R. Co. v. Hopkins, 41 Ala. 486; Southern Exp. Co. v. Crook, 44 Ala. 469;
Ohio & M. R. Co. v. Selby, 47 Ind. 471; Maslin v. Railway Co., 14 W. Va.
180; Gulf, C. & S. F. Ry. Co. v. McGown, 65 Tex. 640; Merchants' Dispatch
.& Transportation Co. v. Cornforth, 3 Colo. 281; Rice v. Railway Co., 63 Mo.
314; Grand Trunk Ry. Co. v. Stevens, 95 U. S. 655; Union Exp. Co. v. Gra-
liam, 26 Ohio St. 595; Carroll v. Railway Co., 88 Mo. 239: Clark v. Geer, 32
. C. A. 295, 86 Fed. 447; Illinois Cent R. Co. v. Beebe, 174 111. 13, 50 X. E.
1019; Louisville, N. A. & C. Ry. Co. v. Keefer, 146 Ind. 21, 44 N. E. 796; Louis-
ville & N. R. Co. v. Bell (Ky.) 38 S. W. 3; Doyle v. Railroad Co., 166 Mass.
-492, 44 N. E. 611; Baltimore & O. R. Co. v. McLaughlin, 19 C. C. A. 551, 73
Ted. 519.
2 Davidson v. Graham, 2 Ohio St. 131. See Starr v. Railway Co., 67 Minn.
18, 69 N. W. 632.
s Arnold v. Railroad Co., 83 111. 273; Illinois Cent R. Co. v. Read, 37 111.
-484; Indiana Cent. R. Co. v. Mundy, 21 Ind. 48.
81) LIMITATION OF LIABILITY. 21S>
the personal safety of the passengers should not be left to the sport
of chance or the negligence of careless agents. Any negligence inv
such cases may well deserve the epithet of 'gross.' " * And in the-
leading case of New York Cent. K. Co. v. Lockwood, 5 it was also held
that no distinction as to the degrees of negligence could be consid-
ered in determining the validity of contracts for the limitation of
the carrier's liability; that a failure to exercise the degree of care
requisite for the safety of the passenger in the circumstances of the
case would constitute negligence, against which the carrier would
not be permitted to contract. 6 In those courts where it is permit-
ted the carrier to make such absolving contracts with gratuitous
passengers, it is essential to their validity that they be clearly and.
unequivocally expressed. 7
* Philadelphia & R. R. Co. v. Derby, 14 How. 468, at page 486. See, alsoy.
Williams v. Railroad Co. (Utah) 54 Pac. 991.
e 17 Wall. 357.
See cases collected in Whart. Neg. 589.
i Keniiey v. Railroad Co., 125 N. Y. 422, 26 N. E. 626.
214 CARRIERS OF GOODS. (Ch. 6
/
CHAPTER VI.
CARRIERS OF GOODS.
82. Definition.
83. Liability for Loss or Damage.
84. Act of Cod or Public Enemy.
85. Act of Shipper.
86. Authority of Law.
87. Inherent Nature of Goods.
88-89. Liability for Delay.
90. Special Contract of Delivery.
91. Contracts Limiting Liability.
92. Limitation in Illinois.
93. Limitation in New York.
94. Limitation of Amount of Liability.
95. Limiting Time and Manner of Making Claims.
96. Consideration.
97. Construction of Limiting Contracts.
98. Notices Limiting Liability.
99. Actual Notice of Reasonable Rules.
100. Special Classes of Goods.
101. Live Stock.
102. Baggage.
103. Effects of Occupants of Sleeping Cars.
104-105. Beginning of Liability.
106. Delivery for Immediate Transportation.
107. Acceptance.
108. Termination of Liability.
109. Delivery to Consignee.
110. Delivery to Connecting Carrier.
111. Excuses for Nondelivery.
112. Superior Adverse Claim.
113. Stoppage in Transitu.
114. Excepted Perils.
DEFINITION.
82. A common carrier is one who represents to the public
that he will carry goods for hire for all persons, at
all times.
82) DEFINITION. 215
Essential Characteristics.
In essential characteristics the carrier of goods resembles the car-
rier of passengers. 1 It should be observed, however, that the car-
rier of passengers remains such even in the gratuitous transportation
of a passenger, 2 whereas, if no consideration is paid in a particular
case for the carriage of goods, the carrier, although regularly en-
gaged in the business of carrying goods for hire for the public gener-
ally, is not, in that particular case, a common carrier, but a gratui-
tous bailee. 3
The employment of the carrier must be public and habitual, other-
wise he will be. no more than a special or private carrier, whose rights,
duties, and liabilities are materially modified. 4 The test is said to
be, "not whether he is carrying on a public employment, or whether
he carries to a fixed place, but whether he holds out, either expressly
or by a course of conduct, that he will carry for hire, so long as he has
room, the goods of all persons indifferently, who send him goods to
be carried."
The following have been held to be common carriers: Express
companies; 6 transportation companies; 7 canal companies; 8 stage
82. i Hale, Bailm. & Carr. p. 304. And see "Carriers of Passengers,"
Ante, pp. 175, 176.
2 See ante, p. 190.
s Hale, Bailrn. & Carr. p. 308; Citizens' Bank v. Nantucket Steamboat Co.,
2 Story, 16, Fed. Gas. No. 2,730.
* 2 Story, Cont. (5th Ed.) 919.
s Nugent v. Smith, 1 C. P. Div. 19, at page 27; Id., 423; Chattock v. Bellamy,
15 Reports, 340.
o United States Exp. Co. v. Backman, 28 Ohio St. 144; Buckland v. Express
o., 97 Mass. 124; Lowell Wire-Fence Co. v. Sargent, 8 Allen (Mass.) 189;
Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174; Sweet v. Barney, 23 N.
Y. 335; American Exp. Co. v. Hockett, 30 Ind. 250; Gulliver v. Express Co.,
38 111. 503; Verner v. Sweitzer, 32 Pa. St. 208; Christenson v. Express Co.,
15 Minn. 270 (Gil. 208); Sherman v. Wells, 28 Barb. (N. Y.) 403; Baldwin v.
Express Co., 23 111. 197; Southern Exp. Co. v. Newby, 36 Ga. 635; Hayes v.
Wells. Fargo & Co., 23 Cal. 185.
- Merchants' Dispatch Transp. Co. v. Bloch, 86 Tenn. 392, 6 S. W. 881.
But a mere forwarding agent is not a common carrier. Roberts v. Turner,
12 Johns. (N. Y.) 232.
s Miller v. Navigation Co., 10 N. Y. 431; Hyde v. Navigation Co., 5 Term R.
389.
216 CARRIERS OF GOODS. (Ch. 6
coaches and omnibuses, as to baggage carried; 9 hackmen and cab
drivers; 10 railroad companies, as to baggage " and freight; 12 barge-
men, lightermen, canal-boat men; 13 ferries; 14 rafts or flat boats; 15
steamboats and merchant ships; 16 railroad receivers 1T and trustees. 18
Verner v. Sweitzer, 32 Pa. St. 208; Bonce v. Railway Co., 53 Iowa, 278,
5 N. W. 177; Parmelee v. Lowitz, 74 111. 110; Dibble v. Brown, 12 Ga. 217;
Parmelee v. McXulty, 19 111. 550. Cabs, drays, etc., see Story, Bailm. 496;
Richards v. Westcott 2 Bosw. (N. Y.) 589; Powers v. Davenport, 7 Blackf.
(Ind.) 497; McHenry v. Railroad Co., 4 Har. (Del.) 448. See, also, Sales v.
Stage Co., 4 Iowa, 547; Hollister v. Nowlen, 19 Wend. (N. Y.) 234; Powell v.
Mills, 30 Miss. 231.
10 Lemon v. Chanslor, 08 Mo. 340; Bonce v. Railway Co., 53 Iowa, 278,
5 N. W. 177.
11 Macrow v. Railway Co., L. R. 6 Q. B. 612; Hannibal R. Co. v. Swift,
12 Wall. 262.
12 Norway Plains Co. v. Boston & M. R. Co., 1 Gray (Mass.) 263; Thomas
v. Railroad Corp., 10 Mete. (Mass.) 472; Root v. Railroad Co., 45 N. Y. 524;
Fuller v. Railroad Co., 21 Conn. 557, 570; Rogers Locomotive & Machine Works
v. Erie R. Co., 20 N. J. Eq. 379; Noyes v. Railroad Co., 27 Vt. 110; Contra
Costa Coal Mines R. Co. v. Moss, 23 Cal. 323.
is Bowman V. Teall, 23 Wend (N. Y.) 306, 309; Parsons v. Hardy, 14 Wend.
(N. Y.) 215; De Mott v. Lara way, Id. 225. Compare Fish v. Clark, 49 X. Y.
122, And see Humphreys v. Reed, 6 Whart. (Pa.) 435; Fuller v. Bradley, 25
Pa. St. 120; Arnold v. Halenbake, 5 Wend. (N. Y.) 33.
i*Wyckoff v. Ferry Co., 52 N. Y. 32; Le Barren v. Ferry Co., 11 Allen
(Mass.) 312; Lewis v. Smith, 107 Mass. 334; White v. Winnisimmet Co., 7
Cush. (Mass.) 156; Fisher v. Clisbee, 12 111. 344; Pomeroy v. Donaldson, 5
Mo. 36; Whitmore v. Bowman, 4 G. Greene (Iowa) 148; Miller v. Pendlcton,
8 Gray (Mass.) 547; Claypool v. McAllister, 20 111. 504; Sanders v. Young, 1
Head (Tenn.) 219; Wilson v. Hamilton, 4 Ohio St. 723; Harvey v. Rose, 26
Ark. 3; Powell v. Mills, 37 Miss. 691; Griffith v. Cave, 22 Cal 535; Hall v.
Renfro, 3 Mete. (Ky.) 52; Babcock v. Herbert, 3 Ala. 392.
is Steele v. McTyer's Adm'r, 31 Ala. 667.
i2 Kent, Comm. 599; Harrington v. McShane, 2 Watts (Pa.) 443; Clark v.
Barn well, 12 How. 272; The Delaware, 14 Wall. 579; Hastings v. Pepper, 11
Pick. (Mass.) 41; Gage v. Tirrell, 9 Allen (Mass.) 299; Elliott v. Rossell, 1O
Johns. (N. Y.) 1; Williams v. Branson, 5 N. C. 417; Crosby v. Fitch, 12 Conn.
410; Parker v. Flagg, 26 Me. 181; Swindler v. Hilliard, 2 Rich. Law (S. C.)
286; McGregor v. Kilgore, 6 Ohio, 358; Benctt v. Steamboat Co., 6 C. B.
775; Crouch v. Railway Co., 14 C. B. 255, 284.
IT Nichols v. Smith, 115 Mass. 332; Paige v. Smith, 99 Mass. 395; Blumenthal
v. Brainerd, 38 Vt. 402.
is Rogers v. Wheeler, 2 Lans. (N. Y.) 486; Id., 43 N. Y. 598; Faulkner v.
Hart, 44 N. Y. Super. Ct. 471; Sprague v. Smith, 29 Vt 421. Truckmen are
So) LIABILITY FOR LOSS OR DAMAGE. 217
But a company operating sleeping cars in connection with railway
trains is not a common carrier, nor an innkeeper, as to goods or
baggage of the passenger; 19 but such companies are liable for failure
to use ordinary care in protecting their passengers from loss by
theft. 20 So, also, in the case of steamships, packets, etc. 21 Where a
railroad lets cars and furnishes tracks and motive power, it has been
held that it is 22 and is not 23 a common carrier.
LIABILITY FOR LOSS OR DAMAGE.
83. In the absence of special contract varying the obliga-
tion, the common carrier is an insurer of the goods
intrusted to him, and is liable for all loss or dam-
age, except such as is caused by
(a) The act of God or the public enemy.
(b) The act of the shipper.
(c) Authority of law.
(d) Inherent nature of goods.
common carriers, Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34,
52 N. E. 6G5; and street car companies, State v. Spokane St. Ry. Co., 19 Wash.
518, 53 Pac. 719.
is Pullman Palace-Car Co. v. Smith, 73 111. 360; Pullman Car Co. v. Gard-
ner, 3 Penny. (Pa.) 78; Blum v. Car Co., 1 Flip. 500, Fed. Gas. No. 1,574;
Woodruff Sleeping & Parlor & Coach Co. v. Diehl, 34 Ind. 474; Pullman
Palace-Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226; Barrott v. Car Co., 51 Fed.
796; Pullman Palace-Car Co. v. Freudenstein, 3 Colo. App. 540, 34 Pac. 578.
20 Lewis v. Car Co., 143 Mass. 267, 9 N. E. 615; Whitney v. Car Co., 143
Mass. 243, 9 N. E. 619; Pullman Palace-Car Co. v. Pollock, 69 Tex. 120, 5
S. W. 814.
21 Clark v. Burns, 118 Mass. 275. Steamboat owners are common carriers,
but are not responsible to passengers for loss of personal belongings which are
not delivered to the designated officer of the boat for safe-keeping. The Crys-
tal Palace v. Yanderpool, 16 B. Mon. (Ky.) 302; Abbott v. Bradstreet, 55 Me.
530.
22 Mallory v. Railroad Co., 39 Barb. (N. Y.) 488; Hannibal R. Co. v. Swift,
12 Wall. 262.
23 East Tennessee & G. R. Co. v. Whittle, 27 Ga. 535; Ohio & M. R. Co. v.
Dunbar, 20 111. 624; Kimball v. Railroad Co., 26 Vt. 247. Logging railroad
not a common carrier, Wade v. Lumber Co., 20 C. C. A. 515, 74 Fed. 517; nor
towboat, Knapp, Stout & Co. v. McCaffrey, 178 111. 107, 52 N. E. 898; Emiliusen
V. Railroad Co., 30 App. Div. 203, 51 N. Y. Supp. 600.
218 CARRIERS OF GOODS. (Ch. 6
The warranty of the carrier is that he will safely and securely carry
-and deliver, and under the common law this is his obligation unless
he has made a special contract with the customer, modifying the lia-
bility. 1 Hence proof of nondelivery of the goods at the destination
establishes, prima facie, a breach of the warranty. 2 To sustain an
action for loss, diminution, 3 or damage, 4 it is sufficient to show the
difference in amount or quality at the time of shipping and the time
of receipt by the consignee.
Custody of Shipper.
In order to impose this utmost liability on the carrier, it is essen-
tial that the goods should be placed and remain in the exclusive
custody of the carrier. If the shipper or his personal representative
accompanies them, and retains over them any degree of control or
possession, the extraordinary liability of a common carrier does not
attach. 5 Having elected not to intrust the care of his goods to the
carrier, but to retain them in his own control, there is no basis of
liability on which to charge the carrier. And so where one shipped
goods by boat, put a guardian on board, who locked the hatches, and
went with the goods, to see that they were delivered safely, the pro-
83. i Coggs v. Bernard, 2 Ld. Raym. 909; Fish v. Chapman, 2 Ga, 349;
Williams v. Grant, 1 Conn. 487; Merritt v. Earle, 29 N. Y. 115; Parsons v.
Hardy, 14 Wend. (N. Y.) 215; Colt v. McMechen, 6 Johns. (N. Y.) 100; Wood v.
Crocker, 18 Wis. 345; Welsh v. Railroad Co., 10 Ohio St. 65; Parker v. Flagg,
26 Me. 181; Blumenthal v. Brainerd, 38 Vt. 402; Hooper v. Wells, Fargo &
Co., 27 Cal. 11; Adams Exp. Co. v. Darnell, 31 Ind. 20; Gulf, C. & S. F. Ry.
Co. v. Levl, 76 Tex. 337, 13 S. W. 191; Daggett v. Shaw, 3 Mo. 264; Forward
T. Pittard, 1 Term R. 27.
2 Gilbart v. Dale, 5 Adol. & E. 543; Griffiths v. Lee, 1 Car. & P. 110.
s Hawkes v. Smith, Car. & M. 72,
Higginbotham v. Railway Co., 10 Wkly. Rep. 358. Proof of injury is
sufficient where the freight is live stock. "The shipper must show some 'in-
jurious accident,' or some injury to the thing shipped, which could not have
been the result of its inherent nature or defects, or which stimulated or acceler-
ated the injury arising out of such inherent nature or defects." Hutch. Carr.
768a; Pennsylvania R. Co. v. Rairordon, 119 Pa. St. 577, 13 Atl. 324; Hussey
v. The Saragossa, 3 Woods, 380, Fed. Gas. No. 6,949. But see The America,
.8 Ben. 491, Fed. Cas. No. 283; Lindsley v. Railway Co., 36 Minn. 539, 33
N. W. 7; Louisville & N. R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311; Colum-
bus & W. Ry. Co. v. Kennedy, 78 Ga. 646, 3 S. W. 267.
6 Tower v. Railroad Co., 7 Hill (N. Y.) 47. But see Hollister v. Nowlen,
19 Wend. (N. Y.) 234; Yerkes v. Sabin, 97 Ind. 141.
83) LIABILITY FOR LOSS OR DAMAGE. 219
prietor of the boat was held not liable as a common carrier, there "not
being any trust in the defendant, and the goods were not to be con-
sidered as ever having been in his possession, but in the possession
of the company's servant. 6
Burden of proof .
It is therefore evident that in an action for the loss or damage of
goods, in the absence of special contract, proof of the fact of loss or
injury is sufficient to establish a prima facie case of liability. The
burden of proof then devolves on the defendant to show that the loss
or injury was the result of one of the excepted causes before alluded
to, viz. the act of God or the public enemy, the act of the shipper, the
exercise of public authority, or the inherent nature of the goods,
against which the carrier is not an insurer. 7 Where it is made to ap-
pear that one or more of these excepted causes was instrumental in
producing the injury complained of, the carrier is, prima facie, not
liable. To charge him with the loss, the burden of proof is then
shifted to the shipper, to show that he was negligent. 8 On this lat-
ter point, however, many courts hold that it is incumbent on the car-
rier to show not only that the loss or injury was caused by an except -
e East India Co. v. Pullen, 2 Strange, 690.
7 Davis v. Railway Co., 89 Mo. 340, 1 S. W. 327; Wallingford v. Railroad
Co., 20 S. C. 258, 2 S. E. 19; Slater v. Railway Co., 29 S. C. 96, 6 S. E. 936;
Grieve v. Railway Co., 104 Iowa, 659, 74 N. W. 192; Texas & P. Ry. Co. v.
Payne (Tex. Civ. App.) 38 S. W. 366; Georgia Railroad & Banking Co. v.
Keener, 93 Ga. 808, 21 S. E. 287; George v. Railway Co., 57 Mo. App. 358;
The Majestic, 166 U. S. 375, 17 Sup. Ct. 597.
s Witting v. Railway Co., 101 Mo. 631, 14 S. W. 743; Davis v. Railway Co.,
89 Mo. 340, 1 S. W. 327; Read v. Railroad Co., 60 Mo. 199 (cf. Hill v. Sturgeon,
28 Mo. 323); Steers v. Steamship Co., 57 N. Y. 1; Lamb v. Transportation Co.,
46 X. Y. 271; Cochrau v. Dinsmore, 49 N. Y. 249; Patterson v. Clyde, 67 Pa,
St. 500; Colton v. Railroad Co., 67 Pa. St. 211; Faruham v. Railroad Co., 55
Pa. St. 53; Goldey v. Railroad Co., 30 Pa. St. 242 (cf. Pennsylvania R. Co. v.
Miller, 87 Pa. St. 395; Hays v. Kennedy, 41 Pa. St. 378; Whitesides v. Rus-
sell, 8 Watts & S. [Pa.] 44); Little Rock, M. R. & T. R. Co. v. Corcoran,
40 Ark. 375; Little Rock, M. R. & T. R. Co. v. Harper, 44 Ark. 208; Kan-
sas Pac. Ry. Co. v. Reynolds, 8 Kan. 623; Kallman v. Express Co., 3 Kan.
205; Kelham v. The Kensington, 24 La. Ann. 100; Smith v. Railroad Co., 64
N. C. 235; Hubbard v. Express Co., 10 R. I. 244; Louisville & N. R. Co. v.
Manchester Mills, 88 Tenn. 653, 14 S. W. 314; Memphis & C. R. Co. v.
Reeves, 10 Wall. 176; Western Transp. Co. v. Downer, 11 Wall. 129; Christie
v. The Craigton, 41 Fed. 62; Reed v. Steamboat Co., 1 Marv. 193, 40 Atl. 955.
220 CARRIERS OF GOODS. (Ch. 0-
ed peril, but that he exercised reasonable care and skill in the cir-
cumstances. 9 Whatever may be the weight of authority regarding
the burden of proof on this point, it is undisputed that even when the
carrier is not an insurer he is bound to exercise ordinary care to carry
safely and securely. 10 What is ordinary care in the various excepted
perils, will be discussed later.
Reason of Rule.
"The law charges this person [the common carrier] thus intrusted
to carry goods against all events but acts of God and of the enemies
of the king. For, though the force be never so great> as if an ir-
resistible multitude of people should rob him, nevertheless he is
chargeable. And this is a politic establishment, contrived by the
policy of the law, for the safety of all persons, the necessity of whose
affairs oblige them to trust these sorts of persons, that they may be
safe in their ways of dealing; for else these carriers might have an
opportunity of undoing all persons that had any dealings with them,
or combining with thieves, etc., and yet doing it in such a clandestine
manner as would not be possible to be discovered. And this is the
reason the law is founded upon in that point." 1X
"When goods are delivered to a carrier, they are usually no longer
under the eye of the owner. He seldom follows or sends any servant
with them to the place of their destination. If they should be lost or
injured by the grossest negligence of the carrier or his servants, or
stolen by them, or by thieves in collusion with them, the owner
would be unable to prove either of these causes of loss. His wit-
South & N. A. R. Co. v. Henlein, 52 Ala. 606; Steele v. Townsend, 37 Ala.
247; Berry v. Cooper, 28 Ga. 543; Chicago, St. L. & N. O. R. Co. v. Moss, 60
Miss. 1003; Same v. Abels, Id. 1017; Gaines v. Insurance Co., 28 Ohio St. 418;
United States Exp. Co. v. Backman, Id. 144; Graham v. Davis, 4 Ohio St. 362;
Union Exp. Co. v. Graham, 26 Ohio St. 595; Slater v. Railway Co., 29 S. C.
96, 6 S. E. 936; Swindler y. Milliard, 2 Rich. Law (S. C.) 286; Baker v.
Brinson, 9 Rich. Law (S. C.) 201; Missouri Pac. Ry. Co. v. Manufacturing Co.,
79 Tex. 26, 14 S. W. 785; Ryan v. Railway Co., 65 Tex. 13; Brown v. Ex-
press Co., 15 W. Va. 812; Shriver v. Railroad Co., 24 Minn. 506; Chicago, B.
& Q. R. Co. v. Manning, 23 Neb. 552, 37 N. W. 462.
10 Marshall v. Railroad Co., 11 C. B. 655, 665, note; Gill v. Railroad Co. r 42
Law J. Q. B. 89; Jackson Architectural Iron Works v. Hurlbut, 158 N. Y.
34, 52 N. E. 665; Hinton v. Railway Co. (Minn.) 75 N. W. 373; Faucher v.
Wilson (N. H.) 38 Atl. 1002.
11 Coggs v. Bernard, 2 Ld. Raym. 909, 918.
83) LIABILITY FOR LOSS OR DAMAGE. 221
nesses must be the carrier's servants, and they, knowing they could
not be contradicted, would excuse their masters and themselves.
To give due security to property, the law has added to that responsi-
bility of a carrier which immediately rises out of his contract to carry
for a reward namely, that of taking all reasonable care of it the
responsibility of an insurer. From his liability as an insurer the
carrier is only to be relieved by two things, both so well known to
all the country, when they happen, that no person would be so rash
as to attempt to prove that they had happened when they had not,
namely, the act of God and the king's enemies." 12
Excepted Risks Generally.
The exercise of ordinary care in a given set of circumstances is
always a duty, and the breach of such a duty, followed by damage, is
negligence. In the emergency, therefore, of any of the risks before
mentioned, which except the carrier from his extraordinary liability
iis insurer, he is not entirely relieved from responsibility, but must
still exercise due diligence, and use all available means, to protect
the goods from loss or damage. 13 Failure on the part of the carrier
to exercise such diligence in the face of the excepted risk is negli-
gence; and if this negligence directly caused, or in connection with
the excepted risk contributed to cause, the injury complained of, he
is liable. 14 Moreover, it is the duty of the carrier to use reasonable
care to guard against all risks, including the excepted ones; and if,
failing to take reasonable precautions, the goods are damaged by rea-
son of the excepted peril, the negligence is regarded as the proximate
12 Riley v. Home, 5 Bing. 217.
is Marshall v. Railway Co., 11 C. B. 655, 665, note; Miller v. Railway Co.,
1 Mo. App. Rep'r, 474; Gill v. Railroad Co., 42 Law J. Q. B. 89.
I* Craig v. Cbildress, Peck (Tenn.) 270; Day v. Ridley, 16 Vt. 48. But the
-care need be only reasonable. Nashville & C. R. Co. v. David, 6 Heisk. (Tenu.)
261; Morrison v. Davis, 20 Pa. St. 171; Railroad Co. v. Reeves, 10 Wall. 176;
Black v. Railroad Co., 30 Neb. 197, 46 N. W. 428; Gillespie v. Railway Co.,
6 Mo. App. 554; Nugent v. Smith, 1 C. P. Div. 423; The Generous, 2 Dod.
322. But see The Niagara v. Cordes, 21 How. 7; King v. Shepherd, 3 Story,
349, Fed. Cas. No. 7,804. See, also, Smith v. Railway Co., 91 Ala. 455, 8 South.
754; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469; Blythe v. Railway
Co., 15 Colo. 333, 25 Pae. 702; Baltimore & O. R. Co. v. Sulphur Spring Inde-
pendent School Dist, 96 Pa. St. 65; Denny v. Railroad Co., 13 Gray (Mass.)
481.
222 CARRIERS OF GOODS. (Ch. 6
cause of the injury, and the carrier is liable. 15 Therefore the carrier
may not ship the goods in an unseaworthy vessel, 16 or attempt to
cross a stream with an insufficient team, 17 or when a dangerous wind
was blowing/ 8 and defend against resulting loss by claiming that it
was caused by the act of God. 19
Ordinarily, as we have seen, the responsibility of the carrier is that
of an insurer ; otherwise, in the case of excepted risks, his liability is
identical with that of the ordinary bailee for hire, he must exercise
the degree of diligence required by law to protect the goods intrusted
to him from injury resulting from conditions which, in the exercise
of ordinary care, might be ameliorated or averted. 20 In this aspect
of his liability as a bailee, the carrier does not become liable for
causes which, from their nature, cannot be known or averted. But
it is his duty, from an inspection of bills of lading or otherwise, to
acquaint himself with the character of the goods, and furnish the care
and protection which their nature requires. 21 Live animals must be
15 Wolf v. Express Co., 43 Mo. 421; Pruitt v. Railroad Co., 62 Mo. r.JT;
Davis v. Eailway Co., 89 Mo. 340, 1 S. W. 327; Elliott v. Rossell, 10 Johns.
(X. Y.) 1; Thomas v. Lancaster Mills, 19 C. C. A. 88, 71 Fed. 481; Richmond &
D. R. Co. v. White, 88 Ga. 805, 15 S. E. 802; Lang v. Railroad Co., 154 Pa. St.
342, 26 Atl. 370.
IB Bell v. Reed, 4 Bin. (Pa.) 127.
IT Campbel v. Morse, 1 Harp. (S. C.) 468.
is Cook v. Gourdin, 2 Nott & McC. (S. C.) 19.
i Williams v. Grant, 1 Conn. 487; Klauber v. Express Co., 21 Wis. 21; Cook
v. Gourdin, 2 Nott & McC. (S. C.) 19; United States Exp. Co. v. Kountze, 8 Wall.
342; Savannah, F. & W. Ry. Co. v. Guano Co. (Ga.) 30 S. E. 555.
20 Bird v. Cromwell, 1 Mo. 81; Chouteaux v. Leech, 18 Pa. St. 224; Chicago
& A. R. Co. v. Davis, 159 111. 53, 42 N. E. 382; Notara v. Henderson, L. R.
5 Q. B. 346, L. R. 7 Q. B. 225. Applying water to hogs to prevent overheat-
ing. Illinois Cent. R. Co. v. Adams, 42 111. 474; Toledo, W. & W. R. Co. v.
Thompson, 71 111. 434; Toledo, W. & W. Ry. Co. v. Hamilton, 76 111. 393. See,
also, The Niagara v. Cordes, 21 How. 7; American Exp. Co. v. Smith, 33 Ohio
St. 511. But a carrier is not bound to interrupt his voyage to preserve goods.
The Lynx v. King, 12 Mo. 272.
21 Butter shipped in warm weather must be protected from heat. Beard v.
Railway Co., 79 Iowa, 518, 44 N. W. 800 (citing Hewett v. Railway Co., 63
Iowa, 611, 19 N. W. 790; Sager v. Railroad Co., 31 Me. 228; Hawkins v.
Railroad Co., 17 Mich. 57, 18 Mich. 427; Ogdensburg & L. C. R. Co. v. Pratt,
22 Wall. 123; Wing v. Railroad Co., 1 Hilt. [N. Y.] 641; Merchants' Dispatch
6 Transportation Co. v. Cornforth, 3 Colo. 280; Boscowitz v. Express Co.,
83) LIABILITY FOR LOSS OR DAMAGE. 223-
supplied with water, and fruits must be protected from frost. 22 Al-
though, by the contract, the carrier is exempted from liability for
loss bj* fire, he will nevertheless be responsible for damage to the-
goods from sparks, occurring through his negligence in failing to
equip his engine with a proper spark arrester. 23 The vehicles must
be reasonably suited for the conveyance of particular classes of
goods, 24 and the cars or other vehicles, even if they are the property
of another carrier, must be reasonably secure and strong. 25 The car-
rier must not mingle goods, if their character is known to him, cal-
culated to do injury one to another, as flour and turpentine, 26 cloths
and acids. 27 He must use reasonable diligence in checking waste
or damage during transit, of which he either knew, or, in the exer-
cise of ordinary care, should have known, as leakage of a cask, 28 or
the deterioration of perishable goods through lack of ventilation. 29
93 111. 523; Steinweg v. Railway Co., 43 N. Y. 123); Alabama & V. R. Co. v.
Searles, 71 Miss. 744, 16 South. 255; Helliwell v. Railway Co., 7 Fed. 68; Peck
v. Weeks, 34 Conn. 145; Sherman v. Steamship Co., 26 Hun, 107.
22 Merchants' Dispatch & Transportation Co. v. Cornforth, 3 Colo. 280. Per
contra, where the shipper selects the vehicle, Carr v. Schafer, 15 Colo. 48, 24
Pac. 873; Tucker v. Railroad Co., 11 Misc. Rep. 366, 32 N. Y. Supp. 1.
23 Steinweg v. Railway Co., 43 N. Y. 123; Maxwell v. Railroad Co., 48 La.
Ann. 385, 19 South. 287.
24 Shaw v. Railway Co., 18 Law J. Q. B. 181, 13 Q. B. 347; Root v. Rail-
road Co., S3 Hun, 111, 31 N. Y. Supp. 357. If a package is too large to be car-
ried in a closed car, it is not negligence to carry it on an open one, provided
reasonable care is used to protect it from the weather. Burwell v. Railroad
Co., 94 N. C. 451.
25 Combe v. Railroad Co., 31 Law T. (X. S.) 613; Amies v. Stevens, 1
Strange, 128; Blower v. Railway Co., L. R. 7 C. P. 655.
26 The Colonel Ledyard, 1 Spr. 530, Fed. Cas. No. 3.027.
27 Alston v. Herring, 11 Exch. 822. But, if the goods are of a nature likely
to be injured by contact with others, it is the duty of the shipper to notify the
carrier, and, if he fails to do so, the latter will not be liable. Hutchinson v.
Guion, 28 Law J. C. P. 63, 5 C. B. (N. S.) 149.
23 Beck v. Evans, 16 East, 244. And see, also, Cox v. Railway Co.; 3 Fost.
& F. 77; Hunnewell v. Taber, 2 Spr. 1, Fed. Cas. No. 6,880; Cincinnati, N. O.
& T. P. Ry. Co. v. N. K. Fairbanks & Co., 33 C. C. A. 611, 90 Fed. 467; Davis
v. Railroad Co., 66 Vt. 290, 29 Atl. 313.
29 Davidson v. Gwynne, 12 East, 381. See, also, Bird v. Cromwell, 1 Mo.
81; Chouteaux v. Leech, 18 Pa. St. 224; Densmore Commission Co. v. Duluth.
S. S. & A. Ry. Co., 101 Wis. 563, 77 N. W. 904; Chicago & A. R. Co. v. Davis :
159 111. 53, 42 N. E. 382.
224 CARRIERS OF GOODS. (Cll. 6
Deviation and Delay.
Neither can the carrier plead exemption from liability by reason
of the act of God or other excepted peril, if he has, without sufficient
reason, deviated from the usual or agreed route of travel; in such
circumstances his liability is absolute, regardless of the cause of
loss. 30 "This absolute liability rests on the proposition that the
wrongful deviation amounts to a conversion, and the carrier is there-
after liable as owner until the original owner voluntarily accepts a
return of the goods." 31
A master deviating in his voyage from the customary course was
held liable for loss caused by tempest. 32 Where the carrier agreed
to carry by land, but sent the goods by water, he was held liable for
their destruction by the act of God. 33 If the owner of a designated
line of boats declines to receive the goods, the carrier should advise
the shipper and await instructions; 3 * but if he forwards by another
line, without such instructions or on his own authority, he is lia-
ble. 35 Nothing short of actual necessity is a sufficient reason for a
deviation from the customary course, 36 and the burden is upon the
carrier to prove the necessity. 37
It is held by some writers that a negligent and unreasonable delay
should impose on the carrier a liability as absolute as that raised by
a deviation from the ordinary route, if the loss can be traced with
30 Crosby v. Fitch, 12 Conn. 410; Powers v. Davenport, 7 Blackf. (Ind.)
497; Merchants' Despatch Transp. Co. v. Kahn, 76 111. 520; Louisville & N.
R. Co. v. Gidley (Ala.) 24 South. 753; International & G. N. R. Co. v. Went-
worth, 8 Tex. Civ. App. 5, 27 S. W. 680; Smith v. Railway Co., 91 Ala. 455,
8 South. 754; Davis v. Garrett, 6 Bing. 716.
31 Hale, Bailm. & Carr. p. 360.
32 Davis v. Garrett, 6 Bing. 716; Powers v. Davenport, 7 Blackf. (Ind.) 497;
Phillips v. Brigham, 26 Ga. 617; Lawrence v. McGregor, Wright N. P. (Ohio)
193.
33 Johnson v. Railroad Co., 33 N. Y. 610; Cox v. Foscue, 37 Ala. 505. The
carrier must follow instructions as to mode of conveyance, Wilcox v. Parmelee,
3 Sandf. (N. Y.) 610; and as to selection of carriers beyond his own route,
Johnson v. Railroad Co., 33 N. Y. 610.
3* Goodrich v. Thompson, 44 N. Y. 324. And see Fisk v. Newton, 1 Denio, 45.
35 Johnson v. Railroad Co., 33 N. Y. 610.
36 Hand v. Baynes, 4 Whart. (Pa.) 204; Johnson v. Railroad Co., 33 N. Y.
610.
ST Le Sage v. Railway Co., 1 Daly (N. Y.) 306.
84) ACT OF GOD OR PUBLIC ENEMY. 225
any degree of certainty to the fault of unreasonable delay, 38 and this
is substantially the ruling of the courts of New York. 39 The more
rational principle, supported by the greater weight of authority,
would seem to be that the carrier should not be held liable for the
loss unless it occurred as a natural and foreseeable consequence of
the delay. 40
SAME ACT OF GOD OR PUBLIC ENEMY.
84. When the loss or damage is caused by what, in legal
phraseology, is known as the "act of God or the
public enemy," the liability of the carrier as insurer
does not attach.
When the loss or damage is caused by the act of God, the duty of
the carrier is performed by the exercise of the degree of care re-
quired of the ordinary bailee for hire. 1 The only difficulty to be met
with in the consideration of this principle,, either among the text
writers or the decisions, is its application. Some writers hold that
the occurrence falls within the definition provided the carrier is with-
out fault and no human agency is connected with the occurrence; 2
while others insist that the action of nature must be essentially vio-
ss Browne, Can. 98; Hutch. Carr. 199, 200.
39 Read v. Spaulding, 30 N. Y. 630; Michaels v. Railroad Co., Id. 564;
Condict v. Railway Co., 54 X. Y. 500; Dunson v. Railroad Co., 3 Lans. (N. Y.)
265. See, also, Hewett v. Railway Co., 63 Iowa. Oil, 19 N. W. 790; Read v.
Railroad Co., 60 Mo. 199; McGraw v. Railroad Co., 18 W. Va. 361; Pruitt v.
Railroad Co., 62 Mo. 527; Michigan Cent. R. Co. v. Curtis, 80 HI. 324; South-
ern Exp. Co. v. Womack, 1 Heisk. (Tenn.) 256.
40 Memphis & C. R. Co. v. Reeves, 10 Wall. 176; Morrison v. Davis, 20 Pa.
St. 171; Denny v. Railroad Co., 13 Gray (Mass.) 481; Hoadley v. Transporta-
tion Co., 115 Mass. 304; and see Jones v. Gilmore, 91 Pa. St. 310, 314; St.
Louis, I. M. & S. Ry. Co. v. Bland (Tex. Civ. App.) 34 S. W. 675; Palmer v.
Railroad Co., 101 Cal. 187, 35 Pac. 630; Missouri Pac. Ry. Co. v. Levi (Tex.
App.) 14 S. W. 1062; Gulf, C. & S. F. Ry. Co. v. Gatewood, 79 Tex. 89, 14 S.
W. 913; Black v. Railroad Co., 30 Neb. 197, 46 N. W. 428; Blythe v. Railway
Co., 15 Colo. 333, 25 Pac. 702.
84. i Ante, p. 222.
2 Hutch. Carr. 175; Story, Bailrn. 489, 490. 511; 2 Kent, Comm. 597.
See criticism of Colt v. McMechen, 6 Johns. 160, in American notes to Coggs
v. Bernard, 1 Smith, Lead. Cas. 317.
BAR.NEG. 15
226 CARRIERS OF GOODS. (Ch. 6
lent 3 But the question of violence would seem to be entirely im-
material, except that it might have importance in determining the
care or negligence of the carrier in the circumstances. 4 Moderate
disturbances of the elements are of common occurrence, and their
possible happening should be taken into consideration by the car-
rier in providing for the safety of the goods. Losses happening in
such circumstances would naturally be attributed to the failure of
the carrier to guard against them, rather than to the elemental na-
ture of the occurrence. 5 Again, the true test is said to be the en-
tire absence of any human agency in producing the loss. 6 But this
is far from satisfactory; for, as has just been intimated, the violence
and nature of the disturbance must be considered in determining
whether the carrier should not, in the exercise of due diligence, have
anticipated and provided against a disturbance of like severity and
frequency; and, if due diligence and foresight could have anticipat-
ed and prevented the loss, it follows that human agency was the legal
producing cause. The only rational solution of the matter would
seem to lie in a consideration of the circumstances surrounding each
case, due regard being had for prevailing, known conditions and gen-
eral experience in similar matters.
In the circumstances of the various cases, the following causes
have been held to be the act of God : Lightning; 7 tempest; 8 earth-
quake; 9 extraordinary flood; 10 a sudden gust 11 or a severe gale
3 Lawson, Bailm. 120; Hutch. Carr. 176.
* Schouler, Bailm. p. 391.
5 Ante, p. 221.
Hale, Bailm. & Carr. p. 357; Merritt v. Earle, 29 N. Y. 115; McArthur v.
Sears, 21 Wend. (N. Y.) 190; Ewart v. Street, 2 Bailey (S. C.) 157; Backhouse
r. Sneed, 5 N. C. 173; Trent Nav. Co. v. Ward, 3 Esp. 127.
7 Forward v. Pittard, 1 Term R. 27, 33.
s Gillett v. Ellis, 11 111. 579.
Slater v. Railway Co., 29 S. C. 96, 6 S. E. 936.
10 Levering v. Coal Co., 54 Pa. St. 291; Nashville & C. R. Co. v. David, 6
Heisk. (Tenn.) 261; Davis v. Railway Co., 89 Mo. 340, 1 S. W. 327; Norris v.
Railway Co., 23 Fla. 182, 1 South. 475; Smith v. Railway Co., 91 Ala. 455, 8
South. 754; Wald v. Railroad Co., 1(52 111. 545, 44 N. E. 888; International &
G. N. R. Co. v. Wentworth (Tex. Civ. App.) 27 S. W. 680. A flood such as has
11 Germania Ins. Co. v. The Lady Pike, 8 Am. Law Reg. (N. S.) 614, Fed.
Cas. No. 7,985.
84) ACT OF GOD OR PUBLIC ENEMY. 22T
of wind; 12 the sudden cessation of win:!: 13 snowstorms; 14 the-
breaking of a dam; 15 freezing of navigable waters; 16 the freezing
of fruit trees in transit; 1T a hidden, unknown rock; 18 a snag lodged
by a freshet in a river. 19 If the carrier is negligent in failing to
avoid the peril, the loss cannot be ascribed to the act of God. 20 On.
the other hand, and in some instances inconsistently with the fore-
going cases, losses caused by fire not originating from lightning, 21 '
the explosion of a boiler, 22 collision, 23 heat, 24 hidden obstructions to
navigation, 25 and the shifting of a buoy, 26 have been held not to be
caused by the act of God.
occurred but twice in a generation is an act of God. Pearce v. The Thomas-
Newton, 41 Fed. 106.
12 Blythe v. Railway Co., 15 Colo. 333, 25 Pac. 702. And see Miltimore Y.
Railway Co., 37 Wis. 190; Gulf, C. & S. F. Ry. Co. v. Compton (Tex. Civ. App.>^
38 S. W. 220.
is Colt v. McMechen, 6 Johns. 160.
14 Black v. Railroad Co., 30 Neb. 197, 46 N. W. 428; Feinberg v. Railroad;'
Co., 52 N. J. Law, 451, 20 Atl. 33; Chapin v. Railway Co., 79 Iowa, 582, 4*
N. W. 820; Palmer v. Railroad Co., 101 Cal. 187, 35 Pac. 630.
is Long v. Railroad Co., 147 Pa. St. 343, 23 Atl. 459 (the Johnstown flood:
of 1889).
IB Bowman v. Teall, 23 Wend. (N. Y.) 306; Parsons v. Hardy, 14 Wend.
(N. Y.) 215; Worth v. Edmonds, 52 Barb. (N. Y.) 40; West v. The Berlin, -
Iowa, 532.
IT Vail v. Railroad Co., 63 Mo. 230.
is Williams v. Grant, 1 Conn. 487; otherwise, if laid down in a chart, Penne-
will v. Cullen, 5 Har. (Del.) 238.
is Sinyrl v. Niolon, 2 Bailey (S. C.) 421.
20 Norris v. Railway Co., 23 Fla. 182, 1 South. 475; Missouri, K. & T. Ry.
Co. v. Olive (Tex. Civ. App.) 23 S. W. 526.
21 Forward v. Pittard, 1 Term R. 27, 33; Condict v. Railway Co., 54 N. Y~
500; Miller v. Navigation Co., 10 N. Y. 431; Parsons v. Monteath, 13 Barb^
(N. Y.) 353; Patton's Adm'rs v. Magrath, Dud. (S. C.) 159; Gilmore v. Carman,.
1 Smedes & M. (Miss.) 279; Moore v. Railroad Co., 3 Mich. 23; Cox v. Peter-
son, 30 Ala, 608; Hyde v. Navigation Co., 5 Term R. 389. Per contra, Chicago
& N. W. R. Co. v. Sawyer, 69 111. 285, the great fire, held not to be act of God_
22 The Mohawk, 8 Wall. 153; Bulkley v. Cotton Co., 24 How. 386.
23 Mershon v. Hobensack, 21' N. J. Law. 372; Plaisted v. Navigation Co., 2T
Me. 132.
24 Beard v. Railway Co., 79 Iowa. 518, 44 N. W. 800.
25 New Brunswick Steamboat & Canal Transp. Co. v. Tiers, 24 N. J. Law,
<J'J7; Friend v. Woods, G Grat. (Va.) 189.
26 Reaves v. Waterman, 2 Speer (S. C.) 197.
228 CARRIERS OF GOODS. (Cli. 6
Proximate Cause.
To relieve the common carrier from liability, the act of God must
have been the proximate cause of the loss. 27 If any agency, other
than a natural one, contributes to cause the loss, it is not imputable
solely to the act of God, and hence it follows that the act of God
relied on as a defense must be shown to be the exclusive cause of the
loss. 28 Thus, if a vessel sinks, partly by reason of being unsea-
worthy and partly by reason of a violent wind, the carrier will be
liable. 29 So, also, where a steamer came in collision with the mast
of a schooner recently sunk by a severe gale; 30 and, where a boat
undergoing repairs on a dry dock was blown into the water by a sud-
den gust of wind, the court said: "The act of God which shook the
dock from under the vessel was not the immediate cause of the dam-
ages. It was the holes in the vessel admitting torrents of water as
soon as it touched the surface." 31
A mistaken judgment, although occurring in the exercise of a
sound discretion and prudence, does not relieve the carrier from lia-
bility. In McArthur v. Sears, 32 Cowen, J., said: "I have sought in
vain for any case to excuse the loss of the carrier, where it arises
from human action or neglect, or any combination of such action or
neglect, except force exerted by a public enemy. No matter what
degree of prudence may be exercised by the carrier and his servants,
although the delusion by which it is baffled or the force by which it is
overcome be inevitable, yet, if it be the result of human means, the
carrier is responsible. * * * I believe it is matter of history
that inhabitants of remote coasts, accustomed to plunder wrecked
27 Merritt v. Earle, 29 N. Y. 115; Smith v. Shepherd, Abb. Shipp. (13th Ed.)
p. 459; New Brunswick Steamboat & Canal Transp. Co. v. Tiers, 24 N. J. Law,
697.
as Packard v. Taylor, 35 Ark. 402; Merritt v. Earle, 29 N. Y. 115; Michaels
v. Railroad Co., 30 N. Y. 564; King v. Shepherd, 3 Story, 349, Fed. Gas. No.
7,804; Ewart v. Street, 2 Bailey (S. C.) 157; Sprowl v. Kellar, 4 Stew. & P.
(Ala.) 382; Lang v. Railroad Co., 154 Pa. St. 342, 26 Atl. 370; Savannah, F. &
W. Ry. Co. v. Guano Co. (Ga.) 30 S. E. 555.
29 Packard v. Taylor, 35 Ark. 402; Bell v. Reed, 4 Bin. (Pa.) 127.
so Merritt v. Earle, 29 N. Y. 115. And see Trent Navigation Co. v. Ward,
3 Esp. 127.
31 Packard v. Taylor, 35 Ark. 402.
3221 Wend. (N. Y.) 190.
84) ACT OF GOD OR PUBLIC ENEMY. 22$
vessels, have sometimes resorted to the expedient of luring benighted
mariners, by false lights, to a rocky shore. Even such a harrowing
combination of fraud and robbery would form no excuse. * * *
The difficulty returns, therefore; if we receive the immediate agency
of third persons in any shape, we open that very door for collusion
which has denied an excuse by reason of theft, robbery, and fire."
The Public Enemy.
The common carrier is not an insurer against losses caused by the
acts of the public enemy. The "public enemy," in its legal signifi-
cance, is an organized military force, moving against the sovereign-
power of the carrier's country. Hence a common carrier will not
be exempt from liability for losses caused by a mere insurrection, 3 *
unless it assumes the proportions of a civil war. 3 * Neither do the
acts of thieves, robbers, strikers, or rioters fall within the excep-
tion. 35 Nor do the acts of soldiers in the regular army, if they are
acting willfully and unlawfully, and not in the discharge of their reg-
ular duty. 36 If actual hostilities exist, it is not essential that there
SB Missouri Pac. Ry. Co. v. Nevill, 60 Ark. 375, 30 S. W. 425; Forward v.
Pittard, 1 Term R. 27, 29. But see Nesbitt v. Lushington, 4 Term R. 783;
Missouri Pac. Ry. Co. v. Nevill, GO Ark. 375, 30 S. W. 425.
S* Mauran v. Insurance Co., 6 Wall. 1; Nashville & C. R. Co. v. Estes, 10
Lea, 749;* The Prize Cases, 2 Black, 635; Hubbard v. Express Co., 10 R. I.
244; Lewis v. Ludwick, 6 Cold. (Tenn.) 368. In the recent Civil War the
Confederate forces were neither robbers on land nor pirates by sea. Fifield
v. Insurance Co., 47 Pa. St. 166; Mauran v. Insurance Co., 6 Wall. 1. Per
contra, Dole v. Insurance Co., 51 Me. 465.
35 Coggs v. Bernard, 2 Ld. Raym. 909, 918; The Belfast v. Boon, 41 Ala. 50;
Boon v. The Belfast, 40 Ala. 184; Lewis v. Ludwick, 6 Cold. (Tenn.) 368;
Schieffelin v. Harvey, 6 Johns. (N. Y.) 170; Watkinson v. Laughton, 8 Johns.
(N. Y.) 213; Morse v. Slue, 1 Vent. 190. Indians on the warpath are public-
enemies. Holladay v. Kennard, 12 Wall. 254. Strikers are not a public
enemy, Missouri Pac. Ry. Co. v. Nevill, 60 Ark. 375, 30 S. W. 425; but their
interference may excuse delay, Geismer v. Railway Co., 102 N. Y. 563, 7 N. E.
828; Pittsburgh, Ft. W. & C. R. Co. v. Hazen, 84 111. 36; Lake Shore & M. S.
Ry. Co. v. Bennett, 89 Ind. 437; Pittsburgh, C. & St. L. Ry. Co. v. Hollowell,
65 Ind. 188; Haas v. Railroad Co., 81 Ga. 792, 7 S. E. 629; Gulf, C. & S. F.
Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191; Missouri Pac. Ry. Co. v. Same (Tex.
App.) 14 S. W. 1062; Gulf, C. & S. F. Ry. Co. v. Gatewood, 79 Tex. 89, 14 S.
W. 913; Southern Exp. Co. v. Glenn, 16 Lea (Tenn.) 472, 1 S. W. 102.
se Seligman v. Armijo, 1 N. M. 459.
230 CARRIERS OF GCODS. (Ch. 6
should be a formal declaration of war. 87 Pirates, although nothing
more than sea robbers, have always been included in the exception
as the common enemy of all mankind. 38
Although the loss is caused by the act of the public enemy, this
does not relieve the carrier from his obligation to use due diligence
in escaping capture or avoiding injury and loss. 39 And, if the loss
occurs while the carrier is deviating from the usual course, he is lia-
ble therefor, regardless of the question whether it was caused by the
-deviation or not. 40 In the event of an unreasonable delay, the car-
rier will not be liable for a loss caused by the public enemy, unless
it appears that such loss was a result naturally to be anticipated
:from the delay. 41
SAME ACT OF SHIPPER.
."85. Common carriers of goods are not insurers against
loss or damage caused by the act of the shipper.
'If the shipper, by any act or by any species of deception, misleads
'the carrier as to the true nature or value of the goods, whereby he is
led to exercise a care, less in degree or different in kind from what
lie would have bestowed had he been informed of their true nature,
and the goods are consequently lost or damaged, the carrier is not
liable. 1 Thus, where an attempt was made to defraud the carrier
jof his just compensation, by shipping money hid in the midst of a
T The Prize Cases, 2 Black, 635.
s Hutch. Carr. 205; Lawson, Bailm. 129; Story, Bailm. 526; Picker-
ing v. Barkley, Style, 132. But see The Belfast v. Boon, 41 Ala. 50.
Forward v. Pittard, 1 Term R. 27; Parker v. James, 4 Camp. 112; Clark
v. Railroad Co., 39 Mo. 184; Express Co. v. Kountze, 8 Wall. 342,
o Parker v. James, 4 Camp. 112.
*i Southern Exp. Co. v. Womack, 1 Heisk. (Tenn.) 256; Hollaclay v. Ken-
nard, 12 Wall. 254.
85. i Gorham Mfg. Co. v. Fargo, 45 How. Prac. 90; Camden & A. R. Co. v.
"Baldauf, 16 Pa. St. 67; Relf v. Rapp, 3 Watts & S. (Pa.) 21; Southern Exp. Co.
v. Crook, 44 Ala. 468; New York Cent. & H. R. R. Co. v. Fraloff, 100 U. S.
24; Phillips v. Earle, 8 Pick. (Mass.) 182; Chicago & A. R. Co. v. Thompson,
19 111. 578; Magnin v. Dinsmore, 62 N. Y. 35; Earnest v. Express Co., 1
Woods, 573, Fed. Cas. No. 4,248; Ocean S. S. Co. of Savannah v. Way, 90
Ga. 747, 17 S. E. 57; Shackt v. Railroad Co., 94 Tenn. 658, 30 S. W. 742.
85) ACT OF SHIPPER. 231
bag of hay, the shipper was not allowed to recover for its loss. 2 So,
likewise, where a diamond ring was sent in a small paper box, tied
up with a string. 3 And, in general, it is true that, if the method
of packing is calculated to mislead the carrier and make him under-
estimate the value of the goods, it is not material that actual fraud
should be intended or proved. 4 The evident reason for this is that
the carrier is thereby "thrown off his guard, and neglects to give the
package the care and attention which he would have given it had he
known its actual value." B
A hidden defect in packing the goods, whereby they are subject
to injury and damage in the ordinary course of transportation, in a
manner unknown to the carrier, relieves him from liability for a loss
thus caused. 6
If the shipper assumes any part of the responsibility connected
with the transportation of the goods, either by express direction or
by act of interference or assumption of authority, a resulting loss
will be attributed to his, and not the carrier's, negligence. 7 Where
the shipper of a horse opened a window in the box car, and left it
2 Gibbon v. Paynton, 4 Burrows, 2298; Southern Exp. Co. v. Everett, 37 Ga.
688; Phillips v. Earle, 8 Pick. (Mass.) 182; The Ionic, 5 Blatchf. 538, Fed.
Cas. No. 7,059; Crouch v. Railway Co., 14 C. B. 255; Edwards v. Sherratt, 1
East, 604; Batson v. Donovan, 4 Barn. & Aid. 21.
s Everett v. Express Co., 46 Ga. 303.
4 Warner v. Transportation Co., 5 Rob. (N. Y.) 490; Orange Co. Bank v.
Brown, 9 Wend. (N. Y.) 85: Pardee v. Drew, 25 Wend. (N. Y.) 459; Chicago
& A. R. Co. v. Thompson, 19 111. 578; Shackt v. Railroad Co., 94 Tenn. 658,
30 S. W. 742; Great Northern Ry. Co. v. Shepherd, 8 Exch. 30, 14 Eng. Law
& Eq. 367.
B Hutch. Carr. 213. Where a box contains glass, the carrier should be
informed of it. American Exp. Co. v. Perkins, 42 111. 458. And generally,
see Hollister v. Nowlen, 19 Wend. (N. Y.) 234; Hayes v. Wells, Fargo & Co.,
23 Cal. 185; St. John v. Express Co., 1 Woods, 612, Fed. Cas. No. 12,228.
e Klauber v. Express Co., 21 Wis. 21; Goodman v. Navigation Co., 22 Or.
14, 28 Pac. 894; Gulf, C. & S. F. Ry. Co. v. Holder, 10 Tex. Civ. App. 223,
30 S. W. 383. But see The Colonel Ledyard, 1 Spr. 530, Fed. Cas. No. 3,027.
But, to relieve the carrier from liability, the loss must arise from the improper
packing. Shriver v. Railroad Co., 24 Minn. 506.
? White v. Winnisirnruet Co., 7 Gush. (Mass.) 155; Wilson v. Hamilton, 4
Ohio St. 722; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 522, 7
S. E. 916; Miltirnore v. Railway Co., 37 Wis. 190; Rixford v. Smith, 52 N. H.
355; Ross v. Railroad Co., 49 Vt. 364; Betts v. Trust Co., 21 Wis. 80; East
232 CARRIERS OF GOODS. (Cll. 6
open without the knowledge of the carrier, the latter was not liable
for the loss of the horse, which jumped through the window and was
killed. 8 So, also, if he furnishes the car 9 or accompanies the goods
under an agreement to care for them. 10 Nor is the carrier liable for
the miscarriage 1X or wrong delivery of the goods, 12 if the shipper
has been guilty of negligence in improperly marking their destina-
tion.
SAME AUTHORITY OF LAW.
86. Common carriers are not liable for loss occurring
through the lawful exercise of public authority.
Whenever, in the course of transportation, the carrier is compelled,
under the paramount authority of the law, to yield the possession of
goods to its officers, he cannot be held liable for the loss. 1 It was
so held where, in the exercise of police powder, goods infected with
contagious diseases or intoxicating liquors were seized. 2 If the
goods are taken under legal process, it is not incumbent on the car-
rier to ascertain positively the validity of the writ before surrendering
the possession; it is sufficient if it bears the ordinary indicia of
validity. 3 "Whatever may be a carrier's duty to resist a forcible
Tennessee, V. & G. R. Co. v. Johnston, 75 Ala. 596; Pennsylvania Co. v. Ken-
wood Bridge Co., 170 111. 645, 49 N. E. 215.
s Hutchinson v. Railway Co., 37 Minn. 524, 35 N. W. 433.
Illinois Cent. R. Co. v. Hall, 58 111. 409; or other appliances, Loveland v.
Burke, 120 Mass. 139; Ross v. Railroad Co., 49 Vt. 364.
loGleason v. Transportation Co., 32 Wis. 85; South & N. A. R. Co. v.
Henlein, 52 Ala. 606; McBeath v. Railway Co., 20 Mo. App. 445.
11 Congar v. Railroad Co., 24 Wis. 157; The Huntress, 2 Ware, 89 (Dav. 82),
Fed. Cas. No. 6,914; Erie Ry. Co. v. Wilcox, 84 111. 239; Southern Exp. Co. v.
Kaufman, 12 Heisk. (Tenn.) 161; Finn v. Railroad Corp., 102 Mass. 283.
12 Lake Shore & M. S. R. Co. v. Hodapp, 83 Pa. St. 22.
86. i Stiles v. Davis, 1 Black, 101; Nashville & C. R. Co. v. Estes, 10 Lea
(Tenn.) 749; Indiana, I. & I. Ry. Co. v. Doremeyer, 20 Ind. App. 605, 50 N. E.
497.
2 Wells v. Steamship Co., 4 Cliff. 228, Fed. Cas. No. 17,401. Game unlaw-
fully killed. Thomas v. Express Co. (Minn.) 75 N. W. 1120.
s Stiles v. Davis, 1 Black, 101; Bliven v. Railroad Co., 36 N. Y. 403; Pin-
gree v. Railroad Co., 66 Mich. 143, 33 N. W. 298; Furman v. Railroad Co., 57
Iowa, 42, 10 N. W. 272; Id., 62 Iowa, 395, 17 N. W. 598; Id., 68 Iowa, 219,
26 N. W. 83; Id., 81 Iowa, 540, 46 N. W. 1049; Ohio & M. Ry. Co. v. Yohe,
87) INHERENT NATURE OF GOODS. 233
seizure without process, he cannot be compelled to assume that regu-
lar process is illegal, and to accept all the consequences of resisting
officers of the law. If he is excusable for yielding to a public enemy,
he cannot be at fault for yielding to actual authority what he may
yield to usurped authority." 4 Where an attachment had been wrong-
fully issued against goods in the hands of the carrier, the court said:
"It is true that these goods had been delivered to the defendant as
carriers by the plaintiffs, to be conveyed for them to the place of desti-
nation, and were seized under an attachment against third persons;
but the circumstance did not impair the legal effect of the seizure or
custody of the goods under it, so as to justify the defendant in taking
them out of the hands of the sheriff. The right of the sheriff to hold
them was a question of law, to be determined by the proper legal pro-
ceedings, and not at the will of the defendant nor that of the plain-
tiffs." 6
SAME INHERENT NATURE OF GOODS.
87. The common carrier is not an insurer against loss
arising from the inherent nature, vice, defect, or
infirmity of the goods, 1 unless his negligence has
contributed thereto. 2
51 Ind. 181; French v. Transportation Co., 134 Mass. 288; Jewett v. Olsen, 18
Or. 419, 23 Pac. 262; The M. M. Chase, 37 Fed. 708; Savannah, G. & N. A.
R. Co. v. Wilcox, 48 Ga. 432. But see Bingham v. Lamping, 26 Pa. St. 340;
McAlister v. Railroad Co., 74 Mo. 351; Mierson v. Hope, 2 Sweeny (N. Y.) 561;
Bennett v. Express Co., 83 Me. 236, 22 Atl. 159.
* Per Campbell, C. J., in Pingree v. Railroad Co., 66 Mich. 143, 33 N. W. 298.
5 Stiles v. Davis, 1 Black, 101; Frank v. Railroad Co., 9 Pa. Super. Ct. 129.
87. i Hale, Bailm. & Carr. p. 368; Story, Bailm. 492a; Hutch. Carr.
216a.
2 Beard v. Railroad Co., 79 Iowa, 518, 44 N. W. 800; Harris v. Railroad Co.,
20 N. Y. 232; Ohio & M. R. Co. v. Dunbar, 20 111. 624; Welsh v. Railroad Co.,
10 Ohio St. 65; Powell v. Railroad Co., 32 Pa. St. 414; Smith v. Railroad Co.,
12 Allen (Mass.) 531; Conger v. Railroad Co., 6 Duer (N. Y.) 375; and as to
whether perishable property must be given preference in transportation, Swet-
land v. Railroad Co., 102 Mass. 276; Peet v. Railroad Co., 20 Wis. 594; Tier-
ney v. Railroad Co., 76 N. Y. 305; Marshall v. Railroad Co., 45 Barb. (N. Y.>
502.
:234 CARRIERS OF GOODS. (Ch. 6
Thus, the carrier is not liable for the decay of fruits, the evapora-
tion or leakage of liquids, and like deteriorations. 3
LIABILITY FOR DELAY.
88. In the absence of special contract, the obligation of
the common carrier is merely to use ordinary dil-
igence to deliver the goods within a reasonable
time.
89. When the carrier makes a specific agreement to carry
and deliver the goods within a limited time, the
obligation is absolute.
In the absence of special agreement, it is the duty of the carrier
to use ordinary care to avoid delays in transportation and to deliver
the goods within a reasonable time. 1 It follows that his liability for
delay in transportation is determined by the test of reasonable care
and reasonable time. Even if the delay is unreasonable, the owner
is still bound to receive the goods when tendered at the destination. 2
In such cases, his remedy is not for a conversion, but for damages,
measured by the loss proximately caused by the delay. 3
s Beard v. Railroad Co., 79 Iowa, 518, 44 N. W. 800; Gulf, C. & S. F. Ry.
Co. v. Levi, 76 Tex. 337, 13 S. W. 191; Cragin v. Railroad Co., 51 N. Y. Gl;
Louisville, N. O. & T. Ry. Co. v. Bigger, 66 Miss. 319, 6 South. 234; Illinois
Cent. R. Co. v. Brelsford, 13 111. App. 251; The Howard v. Wissman, 18 How.
231; The Collenberg, 1 Black, 170; Swetland v. Railroad Co., 102 Mass. 276;
Warden v. Greer, 6 Watts (Pa.) 424; Powell v. Mills, 37 Miss. 691; Evans v.
Railroad Co., Ill Mass. 142. Thus, of peaches, American Exp. Co. v. Smith,
33 Ohio St. 511, 31 Am. Rep. 561, and note; and of potatoes, The Howard v.
Wissman, 18 How. 231; fermentation of molasses, Warden v. Greer, 6 Watts
(Pa.) 424; Faucher v. Wilson (N. H.) 38 Atl. 1002.
88-89. i Scovill v. Griffith, 12 N. Y. 509; Michigan Cent. R. Co. v. Bur-
rows, 33 Mich. 6; Empire Transp. Co. v. Wallace, 68 Pa. St. 302; Kinnick v.
Railroad Co., 69 Iowa, 665, 29 N. W. 772; Savannah, F. & W. Ry. Co. v. Pritch-
ard, 77 Ga. 412, 1 S. E. 261; Johnson v. Railway Co., 90 Ga. 810, 17 S. E. 121.
2 Hutch. Carr. 328; Scovill v. Griffith, 12 N. Y. 509.
s Scovill v. Griffith, 12 N. Y. 509; Ruppel v. Railway Co., 167 Pa. St. 166, 31
Atl. 478; Hudson v. Railway Co., 92 Iowa, 231, 60 N. W. 608; Fox v. Rail-
road Co., 148 Mass. 220, 19 N. E. 222; Pereira v. Railroad Co., 66 Cal. 92, 4
.Pac. 988; Douglass v. Railroad Co., 53 Mo. App. 473; Gulf, C. & S. F. R. Co.
88-89) LIABILITY FOR DELAY. 235
What is a reasonable time is always a question of fact, requiring a
consideration of all the attendant circumstances, the nature of the
goods; the distance; the character of the journey, whether by land
or water; the motive power; the season of the year; the weather;
and the like.*
Ei-iusesfor Delay.
If the delay in transportation occurs without the fault or negli-
gence of the carrier, he cannot be held liable for resulting loss. 5 Nor
will the carrier be liable for delay caused by mere accident or mis-
fortune, although not of such a nature as to be characterized as "in-
evitable," provided it could not have been anticipated and avoided by
the exercise of ordinary care. 6 Thus, the carrier will not be liable
for delay caused by the violence of mobs or strikers, 7 although he
v. Hughes (Tex. Civ. App.) 31 S. W. 411; The Caledonia, 157 U. S. 124, 15
Sup. Ct. 537; Houseman v. Transportation Co., 104 Mich. 300, 62 N. W. 290.
And the shipper may recover expenses to which he has been put by the delay.
Black v. Baxendale, 1 Exch. 410; Galveston, H. & S. A. Ry. Co. v. Tuckett
(Tex. Civ. App.) 25 S. W. 150; Gulf, C. & S. F. Ry. Co. v. Hume. 87 Tex. 211,
27 S. W. 110.
* Coffin v. Railroad Co., 64 Barb. (N. Y.) 379; Wibert v. Railroad Co., 12 N.
Y. 245; Nudd v. Wells, 11 Wis. 407; Parsons v. Hardy, 14 Wend. (N. Y.) 215;
Michigan Southern & N. I. R. Co. v. Day, 20 111. 375; Bennett v. Byram, 38
Miss. 17; East Tennessee & G. R. Co. v. Nelson, 1 Cold. (Tenn.) 272; Gerhard
v. Xeese, 36 Tex. 635; McGraw v. Railroad Co., 18 W. Va. 301; Peterson v.
Case, 21 Fed. SS5; St. Louis, I. M. & S. Ry. Co. v. Heath, 41 Ark. 476; Ormsby
v. Railroad Co., 2 McCrary, 48, 4 Fed. 170, 706; St. Clair v. Railroad Co., 80
Iowa, 304, 45 N. W. 570.
5 Ruppel v. Railway Co., 167 Pa. St. 166, 31 Atl. 478; Philadelphia, W. & B.
R. Co. v. Lehman, 56 Md. 209; Taylor v. Railroad Co., L. R. 1 C. P. 385. But
he is liable for negligent delay. Rawson v. Holland, 59 N. Y. 611; Michigan
Southern & N. I. R. Co. v. Day, 20 111. 375; Rathbone v. Xeal, 4 La. Ann. 563.
Hutch. Carr. 330.
T Pittsburgh, C. & St. L. R. Co. v. Hollowell, 65 Ind. 188. But see Black-
stock v. Railroad Co., 20 X. Y. 48. Where the places of striking employes
are promptly supplied by other competent men, and the strikers then prevent
the new employes from doing their duty by lawless and irresistible violence,
the company is not liable for delay caused solely by such violence. Pittsburgh,
Ft. W. & C. R. Co. v. Hazen, 84 111. 36; Pittsburgh, C. & St. L. R. Co. v.
Hollowell, 65 Ind. 188; Geismer v. Railway Co., 102 N. Y. 563, 7 X. E. 828;
Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191; Haas v. Railroad
Co., 81 Ga, 792, 7 S. E. 629; International & G. N. Ry. Co. v. Tisdale, 74 Tex.
8, 11 S. W. 900; Lake Shore & M. S. Ry. Co. v. Bennett, 89 Ind. 457; Bait-
236 CARRIERS OF GOODS. (Ch. 6
would be absolutely liable for loss or damage from the same source. 8
Other causes of excusable delay are: A low stage of water, imped-
ing navigation; 9 collision either on land 10 or water; 1X an unusual
press of freight; 12 heavy snow; 13 freezing of navigable waters; 1 *
and the like. 15
Not infrequently the ultimate safety of the goods must be consid-
ered, rather than their speedy delivery, and in such circumstances
delay may become a positive duty. Thus, where the customary route
of a vessel through Long Island Sound became blocked with ice, and,
in attempting to make the passage by way of the open ocean, the
vessel and goods were lost in a storm, the carrier was held liable, on
the ground that the master should have waited until the safer route
was open. 16
When a delay occurs, it is the duty of the carrier to use ordinary
care to preserve the goods from injury or deterioration, 17 and he
must resume and complete the transportation so soon as the cause
of the delay is removed. 18
lett v. Railway Co., 94 Ind. 281; Missouri Pac. Ry. Co. v. Levi (Tex. App.) 14
S. W. 1062; Southern Pac. Ry. Co. v. Johnson (Tex. App.) 15 S. W. 121; Gulf,
C. & S. F. Ry. Co. v. Gatewood, 79 Tex. 89, 14 S. W. 913.
s See ante, p. 229.
Bennett v. Byrain, 38 Miss. 17; Silver v. Hale, 2 Mo. App. 557.
10 Conger v. Railroad Co., 6 Duer (N. Y.) 375.
11 Parsons v. Hardy, 14 Wend. (N. Y.) 215.
12 Wibert v. Railroad Co., 12 N. Y. 245; Michigan Cent. R. Co. v. Burrows,
33 Mich. 6. But see Thomas v. Railway Co., 63 Fed. 200; International & G.
N. Ry. Co. v. Anderson, 3 Tex. Civ. App. 8, 21 S. W. 691; Louisville & N. R.
Co. v. Touart, 97 Ala. 514, 11 South. 756.
is Pruitt v. Railroad Co., 62 Mo. 527; Ballentine v. Railroad Co., 40 Mo. 491;
Briddon v. Railway Co., 28 L. J. Exch. 51.
i* Bowman v. Teall, 23 Wend. (N. Y.) 306; Beckwith v. Frisbie, 32 Vt. 559.
But see Spann v. Transportation Co., 11 Misc. Rep. 680, 33 N. Y. Supp. 566.
is Generally, Vicksburg & M. R. Co. v. Ragsdale. 46 Miss. 458; Livingston
v. Railroad Co., 5 Hun (N. Y.) 562; Taylor v. Railway Co., L. R. 1 C. P. 385.
Atmospheric conditions crippling telegraph service, International & G. X. R.
Co. v. Hynes, 3 Tex. Civ. App. 20, 21 S. W. 622; floods, St. Louis, I. M. & S.
Ry. Co. v. Jones (Tex. Civ. App.) 29 S. W. 695; International & G. N. R.
Co. v. Wentworth, 8 Tex. Civ. App. 5, 27 S. W. 680.
IB Crosby v. Fitch, 12 Conn. 410.
IT Bowman v. Teall, 23 Wend. (N. Y.) 306; Bennett v. Byram, 38 Miss. 17.
isHadley v. Clarke, 8 Term R. 259; Palmer v. Lorillard, 16 Johns. (X. Y.)
348.
91) CONTRACTS LIMITING LIABILITY. 237
SAME SPECIAL CONTRACT OF DELIVERY.
90. When the carrier, by special contract, agrees to de-
liver the goods -within a specified time, he becomes
an insurer in that respect, and the duty is abso-
lute, 1 and not even the act of God will relieve him
from liability. 2
In all contracts of this kind, it is the duty of the shipper to fur-
nish the goods at the time agreed on, and, on his default in this par-
ticular, the carrier cannot be held liable if the transportation is not
completed within the prescribed time. 3
CONTRACTS LIMITING LIABILITY
91. In the absence of a prohibiting statute, the common
carrier of goods may, by special contract -with the
shipper, limit his liability to that of ordinary bailee
for hire; but he cannot thereby relieve himself of
responsibility for the negligence of himself or his
agents.
EXCEPTIONS (a) By the Illinois rule, the carrier may
stipulate against the ordinary, but not the gross,
negligence of his servants.
(b) By the New York rule, the carrier may contract
against liability for any degree of negligence on the
part of his servants, but cannot escape responsibility
for his personal negligence.
90. i Fox v. Railroad Co., 148 Mass. 220, 19 N. E. 222; Pereira v. Rail-
road Co., 66 Cal. 92, 4 Pac. 988; Chicago A. R. Co. v. Thrapp, 5 111. App. 502:
Deming v. Railroad Co., 48 N. H. 455; Place. v. Express Co., 2 Hilt. (X. Y.I
19; Harrison v. Railway Co., 74 Mo. 304; Parmalee v. Wilks, 22 Barb. (N. Y.I
539; Harmony v. Bingham, 12 N. Y. 99; Cantwell v. Express Co., 58 Ark. 487.
25 S. W. 503. The contract may be implied from acceptance of the goods with
knowledge that they are intended to be at their destination on a given day.
Chicago & A. R. Co. v. Thrapp. 5 111. App. 502; Grindle v. Express Co.. 67
Me. 317; Philadelphia, W. & B. R. Co. v. Lehman. 56 Md. 209. But see United
States Exp. Co. v. Root 47 Mich. 231, 10 X. W. 351.
2 Harmony v. Bingham, 12 X. Y. 99; Id., 1 Duer (X. Y.) 209; Miller v. Rail-
way Co., 1 Mo. App. Rep'r, 474.
s Hutch. Carr. 319a; Fowler v. Steam Co., 87 N. Y. 190.
238 CARRIERS OF GOODS. (Ch. 6
In England, in the early part of the present century, the rigor of
the common law was relaxed, and the right of the carrier to limit
his extraordinary liability by special contract was clearly recog-
nized, 1 and he was even permitted to exempt himself from liability
for .his own negligence. 2 In this country, the earliest recorded case
in which the question squarely arose was that of Gould v. Hill. 3
Basing its decision on grounds of public policy, the court held in
that case that the carrier could not qualify or vary his common-law
liability by contract. This was followed, after an interval of a few
years, by the case of New Jersey Steam Nav. Co. v. Merchants'
Bank, 4 in which the supreme court of the United States disapproved
the ruling in Gould v. Hill, and unanimously decided that the com-
mon carrier might, by special contract, restrict his liability. And it
is now almost universally held in this country that the carrier may
contract against his liability as an insurer, but not against liability
for damages caused by his own or his servants' negligence. 6 While
91. i Izett v. Mountain, 4 East, 371; Nicholson v. Willan, 5 East, 507;
Clarke v. Gray, 6 East, 564; Harris v. Packwood, 3 Taunt. 264; Beck v. Evans,
16 East, 244; Munn v. Baker, 2 Starkie, 255; Wyld v. Pickford. 8 Mees. & W.
443; Carr v. Railway Co., 7 Exch. 707.
2 Maying v. Todd, 1 Starkie, 72; Leeson v. Holt, Id. 186; Carr v. Railway
Co., 7 Exch. 707.
s 2 Hill (N. Y.) 623.
4 6 How. 344.
5 South & N. A. R. Co. v. Henlein, 52 Ala. 606, 56 Ala, 368; East Tennessee,
V. & G. R. Co. v. Johnston, 75 Ala. 596; Little Rock, M. R. & T. Ry. Co. v.
Talbot, 47 Ark. 97, 14 S. W. 471; Taylor v. Railroad Co., 39 Ark. 148; Over-
land Mail & Express Co. v. Carroll, 7 Colo. 43, 1 Pac. 682; Merchants' Dispatch
& Transportation Co. v. Cornforth, 3 Colo. 280; Union Pac. R. Co. v. Rainey,
19 Colo. 225, 34 Pac. 986; Camp v. Steamboat Co., 43 Conn. 333; Welch v.
Railroad Co., 41 Conn. 333; Central R. Co. v. Bryant, 73 Ga. 722, 726; Berry
v. Cooper, 28 Ga. 543: Flinn v. Railroad Co., 1 Hotist. (Del.) 469, 502; Bosco-
witz v. Express Co., 93 111. 523; Erie Ry. Co. v. Wilcox, 84 111. 239; Rosenfeld
v. Railway Co., 103 Ind. 121, 2 N. E. 344; Bartlett v. Railway Co., 94 Ind. 281;
Ohio & M. Ry. Co. v. Selby, 47 Ind. 471; Sprague v. Railway Co., 34 Kan.
347, 8 Pac. 465; St. Louis, K. C. & N. Ry. Co. v. Piper, 13 Kan. 505; Louisville
& N. R. Co. v. Brownlee, 14 Bush (Ky.) 590; Louisville, C. & L. R. Co. v.
Hedger, 9 Bush (Ky.) 645; New Orleans Mut. Ins. Co. v. Railroad Co., 20 La.
Ann. 302; Roberts v. Riley, 15 La. Ann. 103; Little v. Railroad Co., 66 Me.
9.39; Willis v. Railway Co., 62 Me. 488; McCoy v. Transportation Co., 42 Md.
-i/d; Brehme v. Dinsmore, 25 Md. 328; Hoadley v. Transportation Co., 115
91) CONTRACTS LIMITING LIABILITY. 239'
conceding the justice and reason of the rule permitting the carrier
to restrict his liability as an insurer, our courts have recognized the
unequal footing upon which the carrier and the shipper stand, and
have steadfastly held it a matter of public policy to place some limi-
tation upon the rule. They have, accordingly, been almost unani-
mous in denying the right of common carriers to contract against
liability for negligence, either of themselves or their agents or em-
ploye's. The elaborate opinion of Mr. Justice Bradley in New York
Mass. 304; Pemberton Co. v. Railroad Co., 104 Mass. 144, 151; School Dist. in
Medfleld v. Boston, H. & E. R. Co., 102 Mass. 552; Grace v. Adams, 100 Mass.
505; Squire v. Railroad Co., 98 Mass. 239; Feige v. Railroad Co., 62 Mich. 1,
28 X. W. 685; Michigan Cent. R. Co. v. Ward, 2 Mich. 538, overruled in Mich-
igan Cent. R. Co. v. Hale, 6 Mich. 243; Boehl v. Railway Co., 4^ Minn. 191,
40 X. W. 333; Hull v. Railway Co., 41 Minn. 510, 43 N. W. 391; Ortt v. Rail-
way Co., 3G Minn. 396, 31 X. W. 519; Chicago, St. L. & N. O. R. Co. v. Abels,
60 Miss. 1017; Xew Orleans, St. L. & C. R. Co. v. Faler, 58 Miss. 911; McFad-
den v. Railway Co., 92 Mo. 343, 4 S. W. 689; Ball v. Railway Co., 83 Mo. 574;
Craycroft v. Railroad Co., 18 Mo. App. 487; Atchison & N. R. Co. v. Washburn,
5 Xeb. 117, 121; Chicago, R. I. & P. R. Co. v. Witty, 32 Xeb. 275, 49 N. W.
183; Rand v. Transportation Co., 59 X. H. 363; Moses v. Railroad Co., 24
X. H. 71, 32 X. H. 523; Ashmore v. Transportation Co., 28 N. J. Law, 180;
Phifer v. Railway Co., 89 N. C. 311; Smith v. Railroad Co., 64 N. C. 235; Gaines
v. Insurance Co., 28 Ohio St. 418; United States Exp. Co. v. Backman, Id,
144; Union Exp. Co. v. Graham, 26 Ohio St. 595; Armstrong v. Express Co.,
159 Pa. St. 640, 28 Atl. 448; Merchants' Despatch Transp. Co. v. Bloch, 86
Tenn. 392, 397, 6 S: W. 881; Coward v. Railroad Co., 16 Lea (Tenn.) 225;
Gulf, C. & S. F. Ry. Co. v. Trawick, 68 Tex. 314, 4 S. W. 567 (under statute);
Gulf, C. & S. F. Ry. Co. v. McGown, 65 Tex. 640; Houston & T. C. R. Co,
v. Burke, 55 Tex. 323; Mann v. Birchard, 40 Vt. 326; Blumenthal v. Braiuerd,
38 Vt. 402; Virginia & T. R. Co. v. Sayers, 26 Grat. (Va.) 328; Wilson v.
Railroad Co., 21 Grat. (Va.) 654, 671; Brown v. Express Co., 15 W. Va. 812;
Maslin v. Railroad Co., 14 W. Va, 180; Abrams v. Railway Co., 87 Wis. 485,
58 X. W. 780. And see Black v. Transportation Co., 55 Wis. 319, 13 N. W,
244; Thomas v. Railway Co.. 63 Fed. 200; Hudson v. Railway Co., 92 Iowa,
231, 60 X. W. 60S; Xew York Cent. R. Co. v. Lockwood, 17 Wall. 357; Michi-
gan Cent. R. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 328; Ogdensburg
6 L. C. R. Co. v. Pratt. 22 Wall. 123; Xew Jersey Steam Xav. Co. v. Merchants'
Bank, 6 How. 344; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U,
S. 397, 9 Sup. Ct. 469; Thomas v. Lancaster Mills, 19 C. C. A. 88, 71 Fed.
481; Liverpool & L. & G. Ins. Co. v. McXeill, 32 C. C. A. 173, 89 Fed. 131;
St. Louis & S. F. Ry. Co. v. Tribbey, 6 Kan. App. 467, 50 Pac. 458; Cox v.
Railroad Co., 170 Mass. 129, 49 X. E. 97; Bird v. Railroad Co., 99 Tenn. 71,
42 S. W. 451; International & G. X. R. Co. v. Parish (Tex. Civ. App.) 43 S,
240 CARRIERS OF GOODS. (Ch. G
Cent. R. Co. v. Lockwood 6 is almost exhaustive upon the subject:
"It is contended that, though a carrier may not stipulate for his own
negligence, there is no good reason why he should not be permitted
to stipulate for immunity for the negligence of his servants, over
whose actions, in his absence, he can exercise no control. If we ad-
vert for a moment to the fundamental principles on which the law
of common carriers is founded, it will be seen that this objection is
inadmissible. In regulating the establishment of common carriers,
the great object of the law was to secure the utmost care and dili-
gence in the performance of their important duties, an object es-
sential to the welfare of every civilized community. Hence the com-
mon-law rule, which charged the common carrier as an insurer.
Why charge him as such? Plainly, for the purpose of raising the
most stringent motive for the exercise of carefulness and fidelity in
his trust. In regard to passengers, the highest degree of careful-
ness and diligence is expressly exacted. In the one case the secur-
ing of the most exact diligence and fidelity underlies the law, and is
the reason of it ; in the other, it is directly and absolutely prescribed
by the law. It is obvious, therefore, that if a carrier stipulate
not to be bound to the exercise of care and diligence, but to be
at liberty to indulge in the contrary, he seeks to put off the es-
sential duties of his employment, and to assert that he may do
so seems almost a contradiction in terms. Now, to what avail
does the law attach these essential duties to the employment of the
common carrier, if they may be waived in respect to his agents and
servants, especially when the carrier is an artificial being, incapable
of acting except by agents and servants? It is carefulness and dili-
gence in performing the service which the law demands, not an ab-
stract carefulness and diligence in proprietors and stockholders who
take no active part in the business. To admit such a distinction in
the law of common carriers, as the business is now carried on, would
be subversive of the very object of the law. It is a favorite argu-
ment, in the cases which favor the extension of the carrier's right
to contract for exemption from liability, that men must be permitted
to make their own agreements, and that it is no concern of the pub-
W. 10G6; Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302;
Pittsburgh, C., C. & St. L. Ry. Co. v. Sheppard, 50 Ohio St. 68, 46 N. E. 61.
e 17 Wall. 357.
91) CONTRACTS LIMITING LIABILITY. 241
lie on what terms an individual chooses to have his goods carried.
Thus, in Dorr v. New Jersey Steam Xav. Co., 7 the court sums up its
judgment thus: 'To say the parties have not a right to make their
own contract, and to limit the precise extent of their own respective
risks and liabilities, in a matter no way affecting the public morals
or conflicting with the public interests, would, in my judgment, be an
unwarrantable restriction upon trade and commerce, and a most pal-
pable invasion of personal right.' Is it true that the public interest
is not affected by individual contracts of the kind referred to? Is
not the whole business community affected by holding such con-
tracts valid? If held valid, the advantageous position of the com-
panies exercising the business of common carriers is such that it
places it in their power to change the law of common carriers, in
effect, by introducing new rules of obligation. The carrier and his
customer do not stand on a footing of equality. The latter is only
one individual of a million. He cannot afford to higgle, or stand
out and seek redress in the courts. His business will not admit
such a course. He prefers, rather, to accept any bill of lading or
sign any paper the carrier presents; often, indeed, without knowing
what the one or the other contains. In most cases he has no alter-
native but to do this or abandon his business. In the present case,
for example, the freight agent of the company testified that though
they made 40 or 50 contracts every week like that under considera-
tion, and had carried on the business for years, no other arrange-
ment than this was ever made with any drover. And the reason is
obvious enough: If they did not accept this, they must pay tariff
rates. These rates were 70 cents a hundred pounds for carrying
from Buffalo to Albany, and each horned animal was rated at 2,000
pounds, making a charge of $14 for every animal carried, instead of
the usual charge of $70 for a car load; being a difference of three
to one. Of course, no drover could afford to pay such tariff rates.
This fact is adverted to for the purpose of illustrating how complete-
ly in the power of the railroad companies parties are, and how nec-
essary it is to stand firmly by those principles of law by which the
public interests are protected. If the customer had any real free-
dom of choice, if he had a reasonable and practicable alternative,
and if the employment of the carrier were not a public one, charging
i 4 Sandf. (N. Y.) 13G.
BAR.NEG. 16
242 CARRIERS OF GOODS. (Oil. 6
him with the duty of accommodating the public in the line of his
employment, then, if the customer chose to assume the risk of neg-
ligence, it could with more reason be said to be his private affair,
and no concern of the public. But the condition of things is entirely
different, and especially so under the modified arrangements which
the carrying trade has assumed. The business is mostly concentrat-
ed in a few powerful corporations, whose, position in the body politic
enables them to control it. They do, in fact, control it, and impose
such conditions upon travel and transportation as they see fit, which
the public is compelled to accept. These circumstances furnish an
additional argument, if any were needed, to show that the condi-
tions imposed by common carriers ought not to be adverse, to say the
least, to the dictates of public policy and morality. The status and
relative position of the parties render any such conditions void.
Contracts of common carriers, like those of persons occupying a fidu-
ciar}' character, giving them a position in which they can take undue
advantage of the persons with whom they contract, must rest upon
their fairness and reasonableness. It was for the reason that the
limitations of liability first introduced by common carriers into their
notices and bills of lading were just and reasonable that the courts
sustained them. It was just and reasonable that they should not
be responsible for losses happening by sheer accident, or dangers of
navigation that no human skill or vigilance could guard against; it
was just and reasonable that they should not be chargeable for mon-
ey or other valuable articles liable to be stolen or damaged, unless
apprised of their character or value; it was just and reasonable that
they should not be responsible for articles liable to rapid decay, or
for live animals liable to get unruly from fright, and to injure them-
selves in that state, when such articles or live animals became in-
jured without their fault or negligence. And, when any of these
just and reasonable excuses were incorporated into notices or special
contracts assented to by their customers, the law might well give
effect to them without the violation of any important principle, al-
though modifying the strict rules of responsibility imposed by the
common law. The improved state of society, and the better admin-
istration of the laws, had diminished the opportunities of collusion
and bad faith on the part of the carrier, and rendered less imperative
the application of the iron rule that he must be responsible at all
91) CONTRACTS LIMITING LIABILITY. 24->
events. Hence the exemptions referred to were deemed reasonable
and proper to be allowed But the proposition to allow a public car-
rier to abandon altogether his obligations to the public, and to stip-
ulate for exemptions that are unreasonable and improper, amount-
ing to an abdication of the essential duties of his employment, would
never have been entertained by the sages of the law. Hence, as be-
fore remarked, we regard the English statute called the Railway an 1
Canal Traffic Act,' passed in 1854, which declared void all notices
and conditions made by common carriers, except such as the judge at
the trial, or the courts, should hold just and reasonable, as substan-
tially a return to the rules of the common law. It would have been
more strictly so, perhaps, had the reasonableness of the contract
been referred to the law, instead of the individual judges. The deci-
sions made for more than half a century before the courts com-
menced the abnormal course which led to the necessity of that stat-
ute, giving effect to certain classes of exemptions stipulated for by
the carrier, may be regarded as authorities on the question as to
what exemptions are just and reasonable. So the decisions of our
own courts are entitled to like effect, when not made under the
fallacious notion that every special contract imposed by the common
carrier on his customers must be carried into effect, for the simple
reason that it was entered into without regard to the character of
the contract and the relative situation of the parties. Conceding,
therefore, that special contracts made by common carriers with their
customers, limiting their liability, are good and valid so far as they
are just and reasonable (to the extent, for example, of excusing them
for all losses happening by accident, without any negligence or fraud
on their part), when they ask to go still further, and to be excused
for negligence (an excuse so repugnant to the law of their founda-
tion and to the public good), they have no longer any plea of justice
or reason to support such a stipulation, but the contrary; and then
the inequality of the parties, the compulsion under which the cus-
tomer is placed, and the obligations of the carrier to the public oper-
ate with full force to devest the transaction of validity."
244: CARRIERS OF GOODS. (Ul. G
SAME LIMITATION IN ILLINOIS.
92. The decisions in Illinois sustain contracts limiting the
carrier's liability to losses caused by gross negli-
gence.
Under the decisions in Illinois, the right of the carrier to contract
against liability is carried to the extreme; he is thereby permitted
to restrict his responsibility to the gross or willful negligence of his
sen-ants. 1 A few other states have lent their sanction to the same
doctrine. 2
SAME LIMITATION IN NEW YORK.
93. Under the New York decisions, the carrier is permit-
ted to contract against the results of his servants',
but not against those of his own, negligence.
The argument for the New York rule is clearly stated in the case
of French v. Buffalo & E. R. Co.: x "A party may certainly consent
to place the instruments and agencies which he is employing in his
business at the service, pro hac vice, of another, undertaking to set
them in motion under the scheme or plan of management which he
has established, and say: 'You shall have the benefit of my enter-
prise, my machinery, my servants, my rules, my regulations, and
scheme of administration; but I propose that you shall take the
hazards of everything but my own fraud or gross negligence, and re-
gard me in no respect insuring or guarantying the fidelity or the pru-
dence, diligence, or care of those servants, whom I have no reason
to distrust, but who may, out of my personal presence, neglect their
92. i Arnold v. Eailroad Co., 83 111. 273; Illinois Cent. R. Co. v. Morrison.
19 111. 136; Same v. Read, 37 111. 484; Erie Ry. Co. v. Wilcox, 84 111. 239;
Wabash Ry. Co. v. Brown, 152 111. 484, 39 N. E. 273; Adams Exp. Co. v.
Haynes, 42 111. 89; Illinois Cent. R. Co. v. Adams. Id. 474; Same v. Smyser,
38 111. 354; compare Adams Exp. Co. v. Stettaners, 61 111. 184; Boskowitz
v. Express Co. (111.) 5 Cent. Law J. 58; Cleveland, C., C. & St. L. Ry. Co. v.
Newlin, 74 111. App. 638.
2 Meuer v. Railway Co., 5 S. D. 568, 59 N. W. 945. The INDIANA and
ALABAMA courts now follow the ordinary rule. See ante, 91, note 5.
i WJ. i *43 N. Y. 108.
93) LIMITATION IN NEW YORK. 245
duty or prove otherwise unfaithful.' There is no sound reason for
denying that if a contract is made on those terms, and presumptively
for a much less compensation to be paid, it shall not bind the parties.
It may safely be assumed that, in this country, at least, men of
business are shrewd enough to take care of their own interests, and
that, if a party consents to such a bargain, it is because it is for his
interest to do so. He expects to make or save money by relieving
the other party from risks which he is willing to assume, and in gen-
eral his expectation is realized. There is neither honesty nor policy
in permitting him, when a loss happens through one of the risks he
consented to bear, to deny the binding force of his contract. This
is now the practical view of the subject, which is recognized as law."
It will be gathered from the foregoing opinion that a distinction
is here recognized between the personal negligence of the carrier
and that of his servants or agents, it being permitted to contract
against the latter, 2 but not against the former. 3 The distinction is
clearly unsound, whether the common carrier be a corporation or an
individual. The dissenting opinion of Wright, J., in Smith v. New
York Cent. R. Co., 4 although dealing with the right of the carrier of
passengers to limit his liability generally, presents a strong argu-
ment on the general proposition that it is contrary to law and public
policy to permit the carrier to contract against the result of neg-
ligence, either of himself or his agents: "Whether a contract shall
be avoided on the ground of public policy does not depend upon the
question whether it is beneficial or otherwise to the contracting par-
ties. Their personal interests have nothing to do with it, but the
interests of the public are alone to be considered. The state is in-
terested not only in the welfare, but in the safety, of its citizens.
To promote these ends is a leading object of government. Parties
2 Wilson v. Railroad Co., 97 X. Y. 87; Eissell v. Railroad Co., 25 N. Y. 442;
Perkins v. Same, 24 X. Y. 19G; Wells v. Same, Id. 181; Smith v. Same, Id.
222. But the decisions in New York have not been uniform. Wells v. Xaviga-
tion Co., 8 X. Y. 375; Maguiu v. Dinsmore, 70 X. Y. 410; Alexander v. Greene,
7 Hill, 533; Dorr v. Xavigation Co., 11 X. Y. 485; Cole v. Goodwin, 19 Wend.
251; Mynard v. Railroad Co., 71 X. Y. ISO.
s Smith v. Railroad Co., 24 X. Y. 222. Contra, Cragin v. Railroad Co., 51
X. Y. 01. See, also, Hawkins v. Railroad Co., 17 Mich. 57; Indianapolis, B. &
W. Ry. Co. v. Strain, 81 111. 504; Welsh v. Railroad Co., 10 Ohio St. 65.
* 24 X. Y. 222.
246 CARRIERS OF GOODS. (Ch. 6
are left to make whatever contracts they please, provided no legal
or moral obligation is thereby violated, or any public interest im-
paired; but, when any effect or tendency of the contract is to im-
pair such interest, it is contrary to public policy and void. Con-
tracts in restraint of trade are void, because they interfere with the
welfare and convenience of the state, yet the state has a deeper in-
terest in protecting the lives of its citizens. It has manifested this
interest unmistakably in respect to those who travel by railroads.
Whether a carrier, to whose exclusive charge the safety of a pas-
senger has been committed, by his own culpable negligence and mis-
conduct, shall put in jeopardy the life of such passenger, is a ques-
tion affecting the public, and not the party alone who is being car-
ried. It is said that the passenger should be left to make whatever
contract he pleases; but, in my judgment, the public having an in-
terest in his safety, he has no right to absolve a railroad company,
to whom he commits his person, from the discharge of those duties
which the law has enjoined upon it in regard for the safety of men.
Can a contract, then, which allows the carrier to omit all caution
or vigilance, and is, in effect, a license to be culpably negligent, to
the extent of endangering the safety of the passenger, be sustained?
I think not. Such a contract, it seems to me, manifestly conflicts
with the settled policy of the state in regard to railroad carriage.
Its effect, if sustained, would obviously enable the carrier to avoid
the duties which the law enjoins in regard to the safety of men, en-
courage negligence and fraud, and take away the motive of self-
interest on the part of such carrier, which is, perhaps, the only one
adequate to secure the highest degree of caution and vigilance. A
contract with these tendencies is, I think, contrary to public policy,
even when no fare is paid."
It is the duty of the carrier to carry safely and to see to it that
there is no negligence in the performance of this duty. The master
is equally liable whether the negligence is that of himself or of his
agents. This is the general law. Were the rule otherwise, any one
might escape liability for negligence in the performance of his duly
by delegating the performance of his business to agents or servants.
LIMITATION OF AMOUNT OF LIABILITY. 247
SAME LIMITATION OF AMOUNT OF LIABILITY.
94. Within reasonable limits, the carrier may restrict his
responsibility to an agreed valuation of the merchan-
dise offered, if the compensation for carriage is sched-
uled on that basis.
Some confusion and conflict exist among the decisions as to
the limitation of liability for losses occurring through the negli-
gence of the carrier, and especially where the carrier attempts by
contract to fix the limit below the value of the property carried.
It is certainly settled by the weight of authority that if the ship-
per, for the purpose of obtaining a reduced rate, places a depreciated
value upon the articles to be carried, or by any device, misrepresen-
tation, or artifice induces the carrier to do so, he cannot, in either
case, recover beyond the value which has been thus fixed. 1 The
tariff is properly proportioned according to the value of the goods
and the consequent risk which the carrier assumes, and a knowl-
edge of the value is essential to determining the degree of care
which should be bestowed on the goods. To permit the shipper
to obtain reduced rates by misrepresentation, and, in the event
of loss, to hold the carrier liable for the higher, concealed value,
would be a gross injustice, and the placing of a premium on fraud. 2
In the leading case upon this subject, the supreme court of the
United States declares its position in very clear language: 3 "The
limitation as to value has no tendency to exempt from liability for
negligence. It does not induce want of care. It exacts from the
94. i Roseufeld v. Railway Co., 103 Ind. 121, 2 N. E. 344; Moses v. Rail-
road Co., 24 N. H. 71; Durgin v. Express Co., 60 N. H. 277, 20 Atl. 328; Hill
v. Railroad Co., 144 Mass. 284, 10 X. E. 836; Graves v. Railroad Co.. 137
Mass. 33; Squire v. Railroad Co., 98 Mass. 239; Magnin v. Dinsmore, 70 N. Y.
410; Steers v. Steamship Co., 57 N. Y. 1; New York Cent. & H. R. R. Co. v.
Fraloff, 100 U. S. 24; Black v. Transportation Co., 55 Wis. 319, 13 N. W.
244; Pacific Exp. Co. v. Foley, 46 Kan. 457, 26 Pac. 665; Harvey v. Railroad
Co., 74 Mo. 538.
2 Graves v. Railroad Co., 137 Mass. 33; Hart v. Railroad Co., 112 U. S. 331,
5 Sup. Ct. 151; Rosenfeld v. Railway Co., 103 Ind. 121, 2 N. E. 344.
3 Hart v. Railroad Co., 112 U. S. 331, 5 Sup. Ct 151.
248 CARRIERS OF GOODS. (Ch. 6
carrier the measure of care due to the value agreed on. 4 The car-
rier is bound to respond in that value for negligence. The com-
pensation for carriage is based on that value. The shipper is
estopped from saying that the value is greater. The articles have
no greater value for the purposes of the contract of transporta-
tion between the parties to the contract. The carrier must re-
spond for negligence up to that value. It is just and reasonable
that such a contract, fairly entered into, and where there is no
deceit practiced on the shipper, should be upheld. There is no vio-
lation of public policy. On the contrary, it would be * * * re-
pugnant to the soundest principles of fair dealing, and of the free-
dom of contracting, and thus in conflict with public policy, if a ship-
per should be allowed to reap the benefit of the contract if there
is no loss, and to repudiate it in case of loss." Certainly, there can
be no injustice in restricting the shipper's claim for damages to
Ihe value which he has himself placed upon the property for trans-
portation. 5 On the other hand, it is equally certain that the car-
rier cannot bind the shipper by an arbitrary valuation of the articles
received for carriage. If there is no representation of value by the
shipper or request of him for a statement of value; if there is no
notice and agreement and no valuable consideration, the carrier,
in case of loss, must respond in damages for the full value of the
property, regardless of any arbitrary valuation which he may have
seen fit to place upon it. 6
It remains to consider the power of the common carrier to limit
his liability in cases of negligence to an amount less than the value
* See Graves v. Railroad Co., 137 Mass. 33; Squire v. Railroad Co., 98 Mass.
239; Rosenfeld v. Railway Co., 103 Ind. 121, 2 N. E. 344; Hopkins v. Westcott,
6 Blatclif. 64, Fed. Cas. No. 6,692; The Aline, 25 Fed. 562; The Hadji, 18 Fed.
459.
5 Duntley v. Railroad Co., 66 N. H. 263, 20 Atl. 327. See, also, Magnin v.
Dinsmore, 62 N. Y. 35; Graves v. Railroad Co., 137 Mass. 33; Hill v. Railroad
Co., 144 Mass. 284, 10 N. E. 836; Alair v. Railroad Co., 53 Minn. 160, 54 N. W.
1072; Toy v. Railroad Co. (Sup.) 56 N. Y. Supp. 182; Pierce v. Southern Pac.
Co., 120 Cal. 156, 47 Pac. 874, and 52 Pac. 302; Goodman v. Railway Co., 71
Mo. App. 460; Smith v. Express Co., 108 Mich. 572, 66 N. W. 479.
e Kansas City, St. J. & C. B. R. Co. v. Simpson, 30 Kan. 645, 2 Pac. 821;
Louisville & N. R. Co. v. Levi, 8 Ohio Dec. 373; Gillespie v. Platt, 19 Misc.
Rep. 43, 42 N. Y. Supp. 876; Donovan v. Oil Co., 155 N. Y. 112, 49 N. E. 678;
Chicago & N. W. Ry. Co. v. Simon, 160 111. 648, 43 N. E. 590.
94) LIMITATION OF AMOUNT OF LIABILITY. 240
of the property. Some courts have held that all contracts in any
degree limiting the amount of liability in such cases are void. 7
The argument supporting this view runs thus: "The carrier can-
not, by contract, excuse itself from liability for the whole nor any
part of a loss brought about by its negligence. To our minds, it
is perfectly clear that the two kinds of stipulation that providing
for total, and that providing for partial, exemption from liability
for the consequences of the carrier's negligence stand upon the
same ground, and must be tested by the same principles. If one
can be enforced, the other can; if either be invalid, both must be
held to be so, the same considerations of public policy operating in
each case. With great deference for those who may differ with
us, we think it entirely illogical and unreasonable to say that the
carrier may not absolve itself from liability for the whole value
of property lost or destroyed through its negligence, but that it
may absolve itself from responsibility for one-half, three-fourths,
seven-eighths, nine-tenths, or ninety-nine hundredths of the loss
so occasioned. With great unanimity, the authorities say it can-
not do the former. If allowed to do the latter, it may thereby
substantially evade and nullify the law r , which says it shall not do
the former, and in that way do indirectly what it is forbidden to
do directly. We hold that it can do neither. The requirement of
T Oppenheimer v. Express Co., 69 111. 62; Adains Exp. Co. v. Stettaners, 61
111. 184; Alabama G. S. R. Co. v. Little, 71 Ala. 611; South & N. A. R. Co.
v. Henlein, 52 Ala. 606; Mobile & O. R. Co. v. Hopkins, 41 Ala. 486; Adams
Exp. Co. v. Harris, 120 Ind. 73, 21 N. E. 340; Chicago, St. L. & N. O. R. Co.
v. Abels, 60 Miss. 1017; Southern Exp. Co. v. Moon, 39 Miss. 822; Coward v.
Railroad Co., 16 Lea (Tenn.) 225; Georgia Railroad & Banking Co. v. Keener,
93 Ga. 808, 21 S. E. 287; Ruppel v. Railroad Co., 167 Pa. St. 166, 31 Atl. 478;
AA'abash Ry. Co. v. Brown, 152 111. 484, 39 N. E. 273; Kansas City, St. J. &
C. B. R. Co. v. Simpson, 30 Kan. 645, 2 Pac. 821; United States Exp. Co. v.
Backman. 28 Ohio St. 144; Black v. Transportation Co., 55 Wis. 319, 13 N. W.
244; Moulton v. Railroad Co., 31 Minn. 85, 16 N. W. 497; Louisville & N. R.
Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311; Grogan v. Express Co., 114 Pa. St.
523, 7 Atl. 134; Weiller v. Railroad Co., 134 Pa. St. 310, 19 Atl. 702; Adams
Exp. Co. v. Holmes (Pa. Sup.) 9 Atl. 166; American Exp. Co. v. Sands, 55 Pa,
St. 140; Westcott v. Fargo, 61 N. Y. 542; Southern Pac. Ry. Co. v. Maddox, 75
Tex. 300, 12 S. W. 815; St. Louis & S. F. Ry. Co. v. Sherlock, 59 Kan. 23,
51 Pac. 899; Baltimore & O. S. W. Ry. Co. v. Ragsdale, 14 Ind. App. 406, 42
N. E. 1106; Ohio & M. Ry. Co. v. Tabor, 98 Ky. 503, 32 S. W. 168.
250 CARRIERS OF GOODS. (Ch. 6
the law has ever been, and is now, that the common carrier shall be
diligent and careful in the transportation of its freight, and public
policy forbids that it shall throw off that obligation by stipulation
for exemption, in whole or in part, from the consequences of its
negligent acts." 8
It is believed, however, that a contract of this nature, fairly en-
tered into, does not conflict with the general rule that common
carriers cannot limit their liability for losses occurring through
their negligence. Such a contract leaves the carrier responsible
for his negligence; it merely fixes the rate of tariff and liquidates
the damages. 9 It should be noted, however, that a reduced freight
rate, or other valuable consideration, is essential to the validity of
contracts of this class. 10
SAME LIMITING TIME AND MANNER OF MAKING CLAIMS.
95. The common carrier may, by special contract, limit the
time -within -which any claim for damages shall be
presented, provided a reasonable time is allowed. 1
The circumstances of each case must be considered in determin-
ing what length of time is reasonable. 2 Thus, a stipulation requir-
s Louisville & N. R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311.
Harvey v. Railroad Co., 74 Mo. 538. See, also, Hart v. Railroad Co., 112
U. S. 331, 5 Sup. Ct. 151; Calderon v. Steamship Co., 16 C. C. A. 332, 69 Fed.
574.
10 McFadden v. Railway Co., 92 Mo. 343, 4 S. W. 689. In this case the rate
charged was usual and regular, and the contract was avoided for want of
consideration. Many of the cases cited in support of the former view may be
similarly reconciled with the principles stated in this paragraph, when the
facts are closely considered. See post, pp. 252, 253.
95. i Gulf, C. & S. F. Ry. Co. v. Trawick, 68 Tex. 314, 4 S. W. 567;
Southern Exp. Co. v. Hunnicutt, 54 Miss. 566; Southern Exp. Co. v. Caldwell,
21 Wall. 264; Weir v. Express Co., 5 Phila. 355; United States Exp. Co. v.
Harris, 51 Ind. 127; Southern Exp. Co. v. Glenn, 16 Lea (Tenn.) 472, 1 S. W.
102; Baltimore & O. S. W. Ry. Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E.
1106; Lewis v. Railroad Co., 5 Hurl. & N. 867. But see Grieve v. Railway
Co., 104 Iowa, 659, 74 N. W. 192.
2 Cox v. Railroad Co., 170 Mass. 129. 49 N. E. 97; Gulf, C. & S. F. Ry. Co.
v. Yates (Tex. Civ. App.) 32 S. W. 355. The following intervals have been held
reasonable: Ninety days, Southern Exp. Co. v. Caldwell, 21 Wall. 264; thirty
9-5) LIMITING TIME AND MANNER OF MAKING CLAIMS. 251
ing the consignee of cattle to present any claim for damages at
the time the cattle were received, and before they were unloaded
and mingled with the other cattle, was held reasonable and valid. 3
But a stipulation requiring goods to be examined before leaving
the station, as applied to a car load of cotton, is not reasonable. 4
The manner of presenting claims may also be regulated by con-
tract in a reasonable manner, 5 and the requirement that notice of
loss be made in writing, 6 or at the place of shipment, is valid. 7
days, Hirshberg v. Dinsmore, 12 Daly (N. Y.) 429; Kaiser v. Hoey (City Ct.
N. Y.) 1 N. Y. Supp. 429; Southern Exp. Co. v. Hunnicutt, 54 Miss. 566; Glenn
v. Express Co., 86 Term. 594, 8 S. W. 152; Weir v. Express Co., 5 Phila. 355;.
five days, Chicago & A. R. Co. v. Simms, 18 111. App. 68; Dawson v. Railway
Co., 76 Mo. 514; sixty days, Thompson v. Railroad Co., 22 Mo. App. 321; seven
days, Lewis v. Railway Co., 5 Hurl. & N. 867. The following periods have
been held unreasonable: Sixty days from date of contract, Pacific Exp. Co.
v. Darnell (Tex. Sup.) 6 S. W. 765; thirty days from date of contract, Adams
Exp. Co. v. Reagan, 29 Ind. 21; Central Vermont R. Co. v. Soper, 8 C. C. A.
.341, 59 Fed. 879; Southern Exp. Co. v. Caperton, 44 Ala. 101; thirty-two days
from date of shipment contract, Southern Exp. Co. v. Bank, 108 Ala. 517,
18 South. 664. But see Southern Exp. Co. v. Caldwell, 21 Wall. 264;
Central Vermont R. Co. v. Soper, 8 C. C. A. 341, 59 Fed. 879. What is a rea-
sonable time is a question of law for the court. Heimann v. Telegraph Co.,
57 Wis. 562, 16 N. W. 32; Browning v. Railroad Co., 2 Daly (N. Y.) 117. Fail-
ure to present a claim within the stipulated time is not a bar to recovery, if
the failure was not caused by the owner's fault. Glenn v. Express Co., 86
Tenn. 594, 8 S. W. 152.
3 Goggiu v. Railway Co., 12 Kan. 416. Compare Smitha v. Railroad Co.,
86 Tenn. 198, 6 S. W. 209. As to what is removing or intermingling, see Chi-
cago, St. L. & N. O. R. Co. v. Abels, 60 Miss. 1017. See generally, The Santee,
2 Ben. 519, Fed. Cas. No. 12,328; Rice v. Railway Co., 63 Mo. 314; Sprague v.
Railway Co., 34 Kan. 347, S Pac. 465; Owen v. Railroad Co., 87 Ivy. 626, 9
S. W. 698.
* Capehart v. Railroad Co., 81 N. C. 438. See, also, Owen v. Railroad Co.,
87 Ky. 626, 9 S. W. 698; Rice v. Railway Co., 63 Mo. 314; Sprague v. Railway
Co., 34 Kan. 347, 8 Pac. 465. Such a stipulation does not apply to latent in-
juries, which could not be discovered at time of delivery. Ormsby v. Railroad
Co., 4 Fed. 170, 706; Capehart v. Railroad Co., 77 N. C. 355.
A requirement that the claim be verified by affidavit is valid. Black v.
Railway Co., Ill 111. 351. Cf. International & G. X. Ry. Co. v. Underwood. 62
Tex. 21. Notice in writing to a particular officer may be required. Dasvson
v. Railway Co., 76 Mo. 514.
e Hirshberg v. Dinsmore, 12 Daly (N. Y.) 429; Chicago & A. R. Co. v. Simms,
1 See note 7 on following page.
252 CARRIERS OF GOODS. (Ch. (>
SAME CONSIDERATION.
96. All contracts in any degree limiting the liability of the
carrier are, in a manner, detractions from the legal
obligation to receive and carry safely, and, to be
effectual, must be supported by a valid considera-
tion other than the mere undertaking of carriage. 1
But an agreement to do something to which the carrier is not
already obligated is sufficient, as to carry at a reduced rate, 2 or
to receive a passenger on a freight train, 3 or to carry a customer
free of charge. 4 When the rate charged is fixed by law, an agree-
ment to carry at that rate furnishes no consideration for a contract
limiting liability, 5 and the same is true, a fortiori, when the rate
charged is the highest permitted by the law. 6 But, when the rate
18 111. App. 68; Wood v. Railway Co., 118 N. C. 1056, 24 S. E. 704. But see
Smitha v. Railroad Co., 86 Tenn. 198, 6 S. W. 209.
7 Such requirement is waived where the carrier has no officer at the place
named to whom notice could be given. Good v. Railway Co. (Tex. Sup.) 11
S. W. 854; Missouri Pac. Ry. Co. v. Harris, 67 Tex. 166, 2 S. W. 574.
96. i Bissell v. Railroad Co., 25 N. Y. 442; McMillan v. Railroad Co.. 16
Mich. 79; German v. Railroad Co., 38 Iowa, 127. See, also, Missouri, K. & T.
Ry. Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 565; Kansas Pac. Ry. Co. v.
Reynolds, 17 Kan. 251; Kellerinan v. Railroad Co., 136 Mo. 177, 34 S. W. 41.
and 37 S. W. 828; San Antonio & A. P. Ry. Co. v. Barnett, 12 Tex. Civ. App.
321, 34 S. W. 139. A common carrier has no right to demand of a shipper
a waiver of his rights as a condition precedent to receiving freight. Missouri
Pac. Ry. Co. v. Fagan, 72 Tex. 127, 9 S. W. 749.
2 Bissell v. Railroad Co., 25 N. Y. 442; Nelson v. Railroad Co.. 48 X. Y. 498;
Jennings v. Railway Co. (Sup.) 5 N. Y. Supp. 140; Dillard v. Railroad Co.. 2
Lea (Teun.) 288; Stewart v. Railway Co., 21 Ind. App. 218, 52 N. E. 89;
Berry v. Railroad Co., 44 W. Ya. 538, 30 S. E. 143: Baltimore & O. S. W.
Ry. Co. v. Crawford, 65 111. App. 113. A stipulation, in a bill of lading, ex-
empting the receiving carrier from its common-law liability for the loss of
goods while in its warehouse at the end of its line, and before delivering to the
connecting carrier, is void, unless there is a special consideration for such ex-
emption, other than the mere receipt of the goods, and the undertaking to-
carry them. Wehmann v. Railway Co., 58 Minn. 22, 59 N. W. 546.
Arnold v. Railroad Co., 83 111. 273.
* Bissell v. Railroad Co., 25 N. Y. 442.
s Wehmann v. Railway Co., 58 Minn. 22, 59 N. W. 546.
See cases cited in section 96, note 1, supra.
97) CONSTRUCTION OF LIMITING CONTRACTS. 253
charged is the usual tariff to all coiners, it does not follow that
it is not a reduced rate, and it will be a sufficient consideration
to support the agreement limiting the liability, provided the car-
rier might have lawfully charged a higher rate. 7
CONSTRUCTION OF LIMITING CONTRACTS.
97; Contracts in limitation of liability are to be construed
strictly against the carrier, 1 giving the shipper the
benefit of all doubts and ambiguities. 2
And so, if the carrier has given two notices, he will be bound
by the one least favorable to himself. 3 Nor will a general clause
be permitted to enlarge specific exemptions. For example, a re-
lease from liability for loss arising from "leakage or decay, chafing
or breakage, or from any other cause,", does not exempt the car-
rier from liability for loss by fire.* A general exemption from lia-
bility for loss will not include losses occurring through negligence. 5
The lex loci contractus determines the validity of contracts lim-
iting liability. 8 But the existence of the contract, the admission
7 Duvenick v. Railroad Co., 57 Mo. App. 550. But see Hance v. Railway Co.,
56 Mo. App. 476.
97. i Magnin v. Dinsmore, 56 N. Y. 168; Edsall v. Transportation Co.,
50 X. Y. 661; Hooper v. Wells, Fargo & Co., 27 Cal. 11; Levering v. Insurance
Co., 42 Mo. 88; Rosenfeld v. Railroad Co., 103 Ind. 121, 2 N. E. 344; St. Louis
& S. E. R. Co. v. Smuck, 49 Ind. 302; Gronstadt v. Witthoff, 15 Fed. 265;
Marx v. Steamship Co., 22 Fed. 680; Ayres v. Railroad Corp., 14 BlatcM. 9 f
Fed. Cas. No. 689.
2 Kansas City, M. & B. R. Co. v. Holland, 68 Miss. 351, 8 South. 516; Black
v. Transportation Co., 55 Wis. 319, 13 N. W. 244; Little Rock,' M. R. & T.
Ry. Co. v. Talbot, 39 Ark. 523.
s Munii v. Baker, 2 Starkie, 255. And see Edsall v. Transportation Co., 50
N. Y. GG1; Airey v. Merrill, 2 Curt. 8, Fed. Cas. No. 115.
4 Menzell v. Railroad Co., 1 Dill. 531, Fed. Cas. No. 9,429. See, also, Hawkins
v. Railroad Co., 17 Mich. 57.
s Aslmiore v. Transportation Co., 28 N. J. Law, 180; Mynard v. Railroad
Co., 71 N. Y. 180. But see Cragin v. Railroad Co., 51 N. Y. 61.
o Talbott v. Transportation Co., 41 Iowa, 247; Fonseca v. Steamship Co., 153
Mass. 553, 27 N. E. 665; Hoadley v. Transportation Co., 115 Mass. 304; West-
ern & A. R. Co. v. Cotton Mills, 81 Ga. 522, 7 S. E. 916; McDaniel v. Railway
Co., 24 Iowa, 412; Caiitu v. Bennett, 39 Tex. 303; First Nat. Bank of Toledo
254 CARRIERS OF GOODS. (Ch. 6
of evidence, and the remedy upon the contract are matters con-
trolled by the lex fori. 7
SAME NOTICES LIMITING LIABILITY.
98. Notices limiting liability, to be effectual, must receive
the assent of the shipper; and such assent cannot be
inferred from a mere knowledge, folio-wed by a de-
livery of the goods to the carrier.
In considering the various forms of notices employed by common
carriers to limit their liability, and their legal effect, it must be re-
membered that the carrier has no right to refuse goods properly
offered for carriage. Subject to certain reasonable regulations,
every man has a right to insist that his property, if classed as car-
riageable goods, shall be transported subject to the carrier's com-
mon-law liability. The carrier cannot impose a stipulation of re-
duced liability as a condition precedent to their reception and car-
riage. The owner can insist that they be received subject to all
the risks and responsibilities that the law annexes to the carrier's
employment. 1 It is therefore apparent that the carrier cannot de-
vest himself of his legal obligations by any act of his own which
is purely ex parte. And if it appear that a restrictive notice has
actually been seen by the shipper, no presumption is thereby raised
that he assents to its terms. It is equally inferable that he has
the intention to insist on his legal rights, and the burden is on the
carrier to establish the contract qualifying his liability. 2 "Conced-
v. Shaw, 61 N. Y. 283; Brockway v. Express Co., 168 Mass. 257, 47 N. E. 87;
Texas & P. Ry. Co. v. Payne (Tex. Civ. App.) 38 S. W. 366. But see Chi-
cago, B. & Q." R. Co. v. Gardiner, 51 Neb. 70, 70 N. W. 508. Compare Dyke
v. Railway Co., 45 N. Y. 113; Curtis v. Railroad Co., 74 N. Y. 116.
7 Hoadley v. Transportation Co., 115 Mass. 304. And see Faulkner v. Hart,
82 X. Y. 413.
98. i See Hollister v. Nowlen, 19 Wend. (N. Y.) 234; Cole v. Goodwin, Id.
251; Jones v. Voorhees, 10 Ohio, 145; Bennett v. Button, 10 N. H. 481, 487;
New Jersey Stearn Nav. Co. v. Merchants' Bank, 6 How. 344, 382; Moses
v. Railroad Co., 24 N. H. 71; Kiniball v. Railroad Co., 26 Vt. 247, at page
256; Dorr v. Navigation Co., 4 Sandf. (N. Y.) 136; Id., 11 N. Y. 485; Michigan
Cent. R. Co. v. Hale, 6 Mich. 243; Slocum v. Fairchild, 7 Hill (N. Y.) 292.
2 McMillan v. Railroad Co., 10 Mich. 79, 111; New Jersey Steam Nav. Co. v.
Merchants' Bank, 6 How. 344, 383.
98) NOTICES LIMITING LIABILITY. . 255
ing that there may be a special contract for restricted liability,
such a contract cannot, I think, be inferred from a general notice
brought home to the employer.' The argument is that, where a party
delivers goods to be carried, after seeing a notice that the carrier
intends to limit his responsibility, his assent to the terms of the
notice may be implied. But this argument entirely overlooks a very
important consideration. Notwithstanding the notice, the owner
lias a right to insist that the carrier shall receive the goods subject
to all the responsibilities incident to his employment. If the deliv-
ery of goods under such circumstances authorizes an implication of
any kind, the presumption is as strong, to say the least, that the
owner intended to insist on his legal rights, as it is that he was
willing to yield to the wishes of the carrier. If a coat be ordered
from a mechanic after he has given the customer notice that he
will not furnish the article at a less price than $100, the assent of
the customer to pay that sum, though it be double the value, may,
perhaps, be implied; but if the mechanic had been under a legal
obligation not only to furnish the coat, but to do so at a reasonable
price, no such implication would arise. Now, the carrier is under
a legal obligation to receive and convey the goods safely, or answer
for the loss. He has no right to prescribe any other terms; and
a notice can, at the most, only amount to a proposal for a special
contract, which requires the assent of the other party. Putting the
matter in the most favorable light for the carrier, the mere delivery
of goods after seeing a notice cannot warrant a stronger presump-
tion that the owner intended to assent to a restricted liability on
the part of the carrier than it does that he intended to insist on
the liabilities imposed by law; and a special contract cannot be im-
plied where there is such an equipoise of probabilities." 3
What Constitutes Assent.
A notice amounts to nothing more than a proposition which
can ripen into a contract only when followed by assent. A pre-
requisite to assent is, of course, a knowledge of the terms and con-
ditions contained in the notice. Various methods have been adopted
by the carrier for placing notices before the shipper, and bringing
s Hollister v. Nowlen, 19 Wend. (X. Y.) 234, 247. See, also, Merchants'
Dispatch Transp. Co. v. Furtliinann, 149 111. G6, 36 N. E. 624; Schulze-Berge v.
The Guildhall, 58 Fed. 796; Wabash R. Co. v. Harris, 55 111. App. 159.
256 CARRIERS OF GOODS. (Ch. G
home to him a knowledge of their contents, such as advertisements
in newspapers, posting notices, or printing them upon bills of lading,
receipts, tickets, and the like. As there is no presumption that
even a person who takes a newspaper reads all its contents, this
method has been abandoned as impracticable. 4 The same objec-
tion applies to notices by means of signs, posters, handbills, and
the like. A person may see a sign without reading it. 5
Same Bills of Lading.
Delivery to and acceptance by a shipper of a bill of lading or
shipping receipt will constitute a contract as to the stipulations
affecting the terms of shipment, although no express assent to
such terms is shown. 6 The explanation for this seeming exception
is not entirely satisfactory, depending, as it does, on the presump-
tion that persons receiving them must know, from their uniform
character and the nature of the business, that they contain the
terms upon which the property is to be carried. 7 To be binding upon
the shipper, the receipt or bill must be delivered before transporta-
tion has commenced, and while it is still in his power to recall the
goods. 8 But if the shipper knew the contents of similar bills or re-
ceipts issued by the carrier, and his custom to deliver them after
* Michigan Cent. R. Co. v. Hale, 6 Mich. 243; Barney v. Prentiss, 4 Har.
& J. (Md.) 317; Judson v. Railroad Corp., G Allen (Mass.) 48G; Baldwin v. Col-
lins, 9 Rob. (La.) 468; Rowley v. Home, 3 Bing. 2; Munn v. Baker, 2 Starkie,
255.
s Clayton v. Hunt, 3 Camp. 27; Hollister v. Xowlen, 19 Wend. (X. Y.) 234;
Gleason v. Transportation Co., 32 Wis. 85; Lake Shore & M. S. Ry. Co. v.
Greenwood, 79 Pa. St. 373; Cantling v. Railroad Co., 54 Mo. 3S5; Butler v.
Heane, 2 Camp. 415; Brooke v. Pickwick, 4 Bing. 218; Kerr v. Willan. 6
Maule & S. 150, 2 Starkie, 53.
Grace v. Adams, 100 Mass. 505; Mulligan v. Railway Co., 36 Iowa, 181;
Kirkland v. Dinsmore, 62 N. Y. 171; Anchor Line v. Dater, 68 111. 369; even
though he neglects to read its terms, Davis v. Railroad Co., 66 Vt. 290, 29 Atl.
313. Acceptance of a bill of lading is not conclusive evidence that the shipper
assented to a stipulation limiting the carrier's liability to his own line.
Wabash R. Co. v. Harris, 55 111. App. 159; Chicago & N. W. Ry. Co. v. Simon,
160 111. 648, 43 N. E. 596. See, also, Schulze-Berge v. The Guildhall, 58 Fed.
796.
7 Blossom v. Dodd, 43 N. Y. 264, 2G9.
s Wilde v. Transportation Co., 47 Iowa, 247: Merchants' Dispatch Transp. Co.
v. Furthmann, 149 111. 66, 36 N. E. 624, affirming 47 111. App. 561; Michigan
Cent. R. Co. v. Boyd, 91 111. 268.
98) NOTICES LIMITING LIABILITY. 257
shipment, he would be bound. 9 "Bills of lading are signed by the
carrier only, and, where a contract is to be signed only by one
party, the evidence of assent to its terms by the other party con-
sists usually in his receiving and acting upon it. This is the case
with deeds poll, and with various classes of familiar contracts,
and the evidence of assent derived from the acceptance of the con-
tract without objection is commonly conclusive. I do not perceive
that bills of lading stand upon any different footing. If the car-
rier should cause limitations upon his liability to be inserted in
the contract in such a manner as not to attract the consignor's at-
tention, the question of assent might fairly be considered an open
one; 10 and, if delivery of the bill of lading was made to the con-
signor under such circumstances as to lead him to suppose it to
be something else, as, for instance, a mere receipt for money,
it could not be held binding upon him as a contract, inasmuch as
it had never been delivered to and accepted by him as such. 11 But,
except in these and similar cases, it cannot become a material
question whether the consignor read the bill of lading or not." 12
S im.e Express Receipts.
It was formerly held that the mere acceptance of express re-
ceipts, unless the terms were read and assented to by the shipper,
did not amount to a contract, 13 but they now occupy the same po-
sition as bills of lading, and, when accepted without objection, con-
stitute the contract between the parties. 1 *
s Shelton v. Transportation Co., 59 N. Y. 258.
10 Brown v. Railroad Co., 11 Gush. (Mass.) 97.
11 King v. Woodbridge, 34 Vt. 565.
12 McMillan v. Railroad Co., 16 Mich. 79. But where the notice Is printed
on the back of the paper, and not in and as a part of the proposed contract,
assent is not implied by acceptance. Michigan Cent. R. Co. v. Mineral Springs
Mfg. Co., 16 Wall. 318; Michigan Cent. R. Co. v. Hale, 6 Mich. 243; The Isa-
bella, 8 Ben. 139, Fed. Cas. No. 7,099; Newell v. Smith, 49 Vt. 255; Ayres v.
Railroad Corp., 14 Blatchf. 9, Fed. Cas. No. 689.
is Kirkland v. Dinsuiore, 2 Hun (N. Y.) 46, 4 Thomp. & C. (N. Y.) 304. re-
versed 62 N. Y. 171; Belger v. Dinsmore, 51 Barb. (N. Y.) 69, reversed 51
N. Y. 1G6; Adams Exp. Co. v. Nock, 2 Duv. (Ky.) 562; Kember v. Express Co.,
22 La. Ann. 158.
i* Huntington v. Dinsmore, 4 Hun (N. Y.) 66, 6 Thomp. & C. (N. Y.) 195;
Snider v. Express Co., 63 Mo. 376; Soumet v. Express Co., 66 Barb. (N. Y.I
2S4; Brelime v. Express Co., 25 Md. 3,28; Christenson v. Express Co., 15
BAR.NEG. 17
258 CARRIERS OF GOODS. (Ch. 6
Same Tickets, Baggage Checks, Receipts, Etc.
Transportation tickets and baggage checks do not stand upon
the same footing with bills of lading in respect to conditions and
limitations printed and stamped upon them, and assent is not pre-
sumed from mere acceptance without objection. 16 Tickets and bag-
gage checks are not in the nature of contracts, or even receipts,
but are merely tokens or vouchers adopted for convenience. 16 Con-
sequently they cannot be presumed to embody the terms upon which
the property is shipped, and as limiting the liability of the carrier.
Therefore a passenger is not bound by a notice printed upon the
face of his ticket, limiting the weight and value of his baggage,
unless his attention is called to the notice, or he is aware of it at
the time his ticket is purchased; 17 -nor even then, unless he assents
to it, 18 although such assent might possibly be implied from ac-
ceptance without objection. 19 Where a printed receipt containing
Minn. 270 (Gil. 208); Kirkland v. Dinsmore, 62 N. Y. 171; Belger v. Dins-
more, 51 N. Y. 166; Magnin v. Dinsmore, 56 N. Y. 168; Westcott v. Fargo, 61
X. Y. 542; Adams Exp. Co. v. Haynes, 42 111. 89; Merchants' Dispatch Transp.
Co. v. Leysor, 89 111. 43; Grace v. Adams, 100 Mass. 505; Boorman v. Express
Co., 21 Wis. 154. But see Adams Express Co. v. Stettaners, 61 111. 184; Ameri-
can Merchants Union Exp. Co. v. Schier, 55 111. 140. In ILLINOIS carriers
are forbidden to limit their liability by stipulation in the receipt given for the
property. But see Illinois Cent. R. Co. v. Jonte, 13 111. App. 424. In DAKOTA
and MICHIGAN the shipper's assent is, by statute, required to be shown by
his signature. Hartwell v. Express Co., 5 Dak. 463, 41 N. W. 732; Feige v.
Railroad Co., 62 Mich. 1, 28 N. W. 685.
is Prentice v. Decker, 49 Barb. (N. Y.) 21; Limburger v. Westcott, Id. 283;
Sunderland v. Westcott, 2 Sweeny (N. Y.) 260; Isaacson v. Railroad Co., 94
N. Y. 278; Lechowitzer v. Packet Co., 6 Misc. Rep. 536, 27 N. Y. Supp. 140.
is Rawson v. Railroad Co., 48 N. Y. 212. Cf. Baltimore & 0. R. Co. v.
Campbell, 36 Ohio St. 647.
17 Rawson v. Railroad Co., 48 N. Y. 212; Mauritz v. Railroad Co., 23 Fed.
765; Nevins v. Steamboat Co., 4 Bosw. (N. Y.) 225; San Antonio & A. P. Ry.
Co. v. Newman (Tex.) 43 S. W. 915; Wiegand v. Railroad Co., 75 Fed. 370.
But a "contract ticket," issued by a steamship company, containing two quarto
papers of printed matter describing the rights and liabilities of the parties.
binds the party to its stipulations, although he has neither read nor sigued it.
Fonseca v. Steamship Co., 153 Mass. 553, 27 N. E. 665.
"Baltimore & O. R. Co. v. Campbell, 36 Ohio St 647; Indianapolis & C.
R. Co. v. Cox, 29 Ind. 360, 95 Am. Dec. 640; Kansas City, St J. & C. B.
R. Co. v. Rodebaugh, 38 Kan. 45, 15 Pac. 899.
i Rawson v. Railroad Co., 48 N. Y. 212.
99) ACTUAL NOTICE OF KEASONABLE RULES. 25S 1
a condition limiting liability was given plaintiff by the agent olT
a baggage express company in exchange for a baggage check, the*
plaintiff was held not bound thereby. Andrews, J., in delivering:
the opinion of the court, said: "When a contract is required to-
be in writing, and a party receives a paper as a contract, or wheife
he knows, or has reason to suppose, that a paper delivered to hirr*
contains the terms of a special contract, he is bound to acquaint
himself with its contents; and, if he accepts and retains it, he-
will be bound by it, although he did not read it. But this rule can-
not, for the reasons stated, be applied to this case, and the court
properly refused to charge, as matter of law, that the delivery of:
the receipt created a contract for the carriage of the trunk, undef
its terms. The question whether, in a particular case, a party re-
ceiving such a receipt accepted it with notice of its contents, is.'
one of evidence, to be determined by the jury. The fact of notice;
may be proved by direct or circumstantial evidence." 20
SAME ACTUAL NOTICE OF REASONABLE RULES:
99. The shipper -will be bound, even without his assent, by-
actual notice of reasonable regulations and require-
ments to furnish information necessary for fixing
rates and other-wise properly conducting the busi-
ness.
In the proper regulation of his business, the carrier may give gei*-
eral notice to all his employers, requiring them to observe the meth-
ods employed, and to give information concerning the nature anct
value of the goods delivered for shipment. These are but reason-
able regulations, which every man should be allowed to establish
for the proper conduct of his business, to insure regularity anol
promptness, and to properly inform him of the responsibility he-
assumes. 1 The shipper is bound by the terms of notices of this
class without his assent. The right of the carrier to graduate his
charges according to the value of the goods and the risk involved,*"
20 Madan v. Sherard, 73 N. Y. 329.
99. i McMillan v. Railroad Co., 16 Mich. 79, 110.
2 Gibbon v. Payntou, 4 Burrows, 2298 (per Lord Mansfield and Ashton, 3.)^:
Tyly v. Morrice, CarUi. 485;- Southern Exp. Co. v. Newby, 36 Ga. G35; Batsoia.
2GO CARRIK15S OF GOODS. (Cll. G
and the fraud and injury which would be worked upon him by
withholding information essential to fixing the amount of reason-
able compensation and determining the degree of care and diligence
to be exercised in the carriage, 3 are the foundation of this doctrine.
"This would not seem to be any infringement upon the principle
of the ancient rule. He must have a right to know what it is that
he undertakes to carry, and the amount and extent of his risk.
We can see nothing that ought to prevent him from requiring no-
tice of the value of the commodity delivered to him, when, from
its nature, or the shape or condition in which he receives it, he may
need the information; nor why he should not insist on being paid
in proportion to the value of the goods, and the consequent amount
of his risk." *
As has been already stated, in the absence of inquiries by the
carrier, the shipper is not bound to disclose the character or value
of the goods, but must answer truly, if interrogated. 5 The object
and effect of notices of this class is to dispense with the necessity
for a special inquiry in each case. 6 "If he has given general notice
that he will not be liable, over a certain amount, unless the value
is made known to him at the time of delivery, and a premium for
insurance paid, such notice, if brought home to the knowledge of
the owner, is as effectual in qualifying the acceptance of the goods
as a special agreement; and the owner, at his peril, must disclose
the value and pay the premium. The carrier, in such case, is not
bound to make the inquiry; and, if the owner omits to make known
the value, and does not, therefore, pay 'the premium at the time of
delivery, it is considered as dealing unfairly with the carrier, and
he is liable only to the amount mentioned in his notice, or not at
all, according to the terms of his notice." 7
v. Donovan, 4 Barn. & Aid. 21; Orange County Bank v. Brown, 9 Wend. (N. Y.)
85, 116.
s Fish v. Chapman, 2 Ga. 349; Cole v. Goodwin, 19 Wend. (N. Y.) 251; Jud-
son v. Railroad Corp., 6 Allen (Mass.) 486; Magnin v. Dinsmore, 62 N. Y.
35; Hopkins v. Westcott, 6 Blatchf. 64, Fed. Cas. No. 6,692; New Jersey Steam
Nav. Co. v. Bank, 6 How. 344; Farmers' & Mechanics' Bank v. Champlain
Transp. Co., 23 Vt. 186.
* Moses v. Railroad Co., 24 N. H. 71, 91.
s See ante, p. 248.
Pntson v. Donovan, 4 Barn. & Aid. 21, 28.
7 Orange County Bank v. Brown, 9 Wend. (N. Y.) 85, 114.
5 101) LIVE STOCK. 261
When the same bill or receipt contains both kinds of notices,
the one of reasonable regulations, and valid without assent, and
the other limiting liability, and not valid without assent, they are
severable, and the one may be enforced and the other rejected. 8
SPECIAL CLASSES OF GOODS.
100. Within certain limitations, it is the duty of the com-
mon carrier to transport all goods offered. Certain
classes of property, however, possess such marked
peculiarities that they require separate considera-
tion. These are:
(a) Live stock.
(b) Baggage.
SAME LIVE STOCK.
101. The nature of the goods carried does not determine
the character of the transportation, and the carrier
of live stock is a common carrier wherever he would
be such if carrying other goods. But he is liable
for injuries by reason of the vitality of the freight,
only where they occur through his negligence.
The extension of the common-law liability of common carriers to
carriers of live animals involves a question on which, a conflict of
opinion exists. Its decision is of great importance, as it involves
the placing of the burden of proof in cases where damages are
claimed for loss or injury. 1 If the liability of the defendant is not
that of a common carrier, the burden is on the plaintiff to show
that the loss occurred through the negligence of the carrier. If,
however, the defendant is liable as a common carrier, the burden
is on him to show that, without negligence, the loss occurred by
reason of one of the excepted perils. As the question most fre-
quently arises in connection with railroads, which are created com-
mon carriers by their organic acts, the decision of the matter is
s Oppenheimer v. Express Co., 69 111. 62; Moses v. Railroad Co., 24 N. H. 71;
The Majestic, 9 C. C. A. 101. GO Fed. 624.
100-101. i Kansas Fac. Ky. Co. v. Reynolds, S Kan. 623.
;262 CARRIERS OF GOODS. (Ch. 6
.^furthermore important in determining whether they are obligated
to carry live stock for all who offer.
The weight of authority supports the proposition that carriers
of live stock are common carriers, and liable as such whenever a
^carrier of other freight would be, in similar circumstances. 2 The
.leading case in support of this view is that of Kansas Pac. By. Co.
"v. Nichols, 3 in which the court said: 'That railroads are created
common carriers of some kind we believe is the universal doctrine
of all courts. The main question is always whether they are corn-
anon carriers of the particular thing then under consideration. The
question in this case is whether they are common carriers of cattle.
"So far as our statutes are concerned, no distinction is made be-
tween the carrying of cattle and that of any other kind of property.
Under our statutes a railroad may as well be a common carrier
of cattle as of goods, wares, and merchandise, or of any other kind
>*>f property. Now, as no distinction has been made by statute be-
tween the carrying of the different kinds of property, we would
infer that railroads were created for the purpose of being common
carriers of all kinds of property which the wants or needs of the
public require to be carried, and which can be carried by the rail-
;roads; and particularly we w 7 ould infer that railroads were created
::for the purpose of being common carriers of cattle. * * * It
2 Mynard v. Railroad Co., 71 N. Y. 180; Cragin v. Railroad Co., 51 N. Y.
61; Perm v. Railroad Co., 49 N. Y. 204; Conger v. Railroad Co., 6 Duer (N. Y.)
375; Clarke v. Railroad Co., 14 N. Y. 570; Harris v. Railroad Co., 20 N. Y.
.:232; St. Louis & S. E. Ry. Co. v. Dorman, 72 111. 504; Ohio & M. R. Co. v.
Dunbar, 20 111. 624; Chicago, R. I. & P. R. Co. v. Harmon, 12 111. App. 54;
-Ayres v. Railroad Co., 71 Wis. 372, 37 N. W. 432; Evans v. Railroad Co., Ill
:Mass. 142; Rixford v. Smith, 52 N. H. 355; Kinnick v. Railroad Co., 69 Iowa,
665, 29 N. W. 772; McCoy v. Railroad Co., 44 Iowa, 424; German v. Rail-
aroad Co., 38 Iowa, 127; Powell v. Railroad Co., 32 Pa. St 414; Atchison &
:N. R. Co. v. Washburn, 5 Neb. 117; Porterfield v. Humphreys, 8 Humph.
<Tenn.) 497; Wilson v. Hamilton, 4 Ohio St. 722; Welsh v. Railroad Co.,
^0 Ohio St. 65; South & N. A. R. Co. v. Henlein, 52 Ala. 606; Kimball v.
; Railroad Co., 26 Vt. 247; Moulton y. Railway Co., 31 Minn. 85, 16 N. W.
497; Agnew v. The Contra Costa, 27 Cal. 425; Lindsley v. Railway Co., 36
Minn. 539, 33 N. W. 7; Gulf, C. & S. F. Ry. Co. v. Trawiok, 68 Tex. 314,
-4 S. W. 567; Myrick v. Railroad Co., 107 U. S. 102, 1 Sup. Ct. 425; Brown v.
Railroad Co., 18 Mo. App. 569; McFadden v. Railway Co., 92 Mo. 343, 4 S.
IV. 689. And see Jag. Torts, p. 1073.
- 9 Kan. 235.
101) LIVE STOCK. 263
is claimed, however, that 'the transportation of cattle and live
stock by common carriers by land was unknown to the common
law.' Suppose it was; what does that prove? The transportation
of thousands of other kinds of property, either by land or water,
was unknown to the common law r , and yet such kinds of property
are now carried by common carriers and by railroads every day.
* * * The reason why cattle and live stock were not transported
by land by common carriers, at common law, was because no com-
mon carrier, at the time our common law was formed, had any
convenient means for such transportation. Among the other kinds
of property not transported by common carriers, either by land
or water, at the time our common law was formed, are the fol-
lowing: Keapers, mowers, wheat drills, corn planters, cultivators,
threshing machines, corn shellers, gypsum, guano, Indian corn, po-
tatoes, tobacco, stoves, steam engines, sewing machines, washing
machines, pianos, reed organs, fire and burglar proof safes, etc.;
and yet no one would now contend that railroads are not com-
mon carriers of these kinds of articles. At common law the char-
acter of the carrier was never determined by the kind of property
that he carried. * * * At common law no person was a com-
mon carrier of any article unless he chose to be, and unless he held
himself out as such; and he was a common carrier of just such
articles as he chose to be, and no others. If he held himself out
as a common carrier of silks and laces, the common law would
not compel him to be a common carrier of agricultural implements,
such as plows, harrows, etc. If he held himself out as a common
carrier of confectionery and spices, the common law 7 would not com-
pel him to be a common carrier of bacon, lard, and molasses.* And
it seems to us clearly beyond all doubt that, if any person had, in
England, prior to the year 1607, held himself out as a common
carrier of cattle and live stock by land, the common law would
have made him such. If so, where *is the valid distinction that is
attempted to be made between the carrying of live stock and the
carrying of any other kind of personal property? The common
law never declared that certain kinds of property only could be
carried by common carriers, but it permitted all kinds of personal
property to be so carried. At common law any person could be
Tunnel v. Pettijohn, 2 Har. (Del.) 48.
264 CARRIERS OF GOODS. (Ch. 6
a common carrier of all kinds, or any kind, and of just such kinds
of personal property as he chose; no more, nor less. Of course, it
is well known that at the time when our common law had its
origin that is, prior to the year 1607 railroads had no existence.
But when they came into existence it must be admitted that they
would be governed by the same rules, so far as applicable, which
govern other carriers of property. Therefore it must be admitted
that railroads might be created for the purpose of carrying one
kind of property only, or for carrying many kinds, or for carrying
all kinds of property which can be carried by railroads, including
cattle, live stock, etc. In this state it must be presumed that they
were created for the purpose of carrying all kinds of personal
property. It can hardly be supposed that they were created simply
for the purpose of being carriers of such articles only as were
carried by common carriers under the common law prior to the
year 1607; for, if such were the case, they would be carriers of
but very few of the innumerable articles that are now actually
carried by railroad companies. And it can hardly be supposed that
they were created for the mere purpose of taking the place of pack
horses, or clumsy wagons, often drawn by oxen, or such other
primitive means of carriage and transportation as were used in
England prior to that year. Railroads are undoubtedly created for
the purpose of carrying all kinds of property which the common
law would have permitted to be carried by common carriers in any
mode, either by land or water, which probably includes all kinds
of personal property. Our decision, then, upon this question, is
that, whenever a railroad company receives cattle or live stock
to be transported over their road from one place to another, such
company assumes all the responsibilities of a common carrier, ex-
cept so far as such responsibilities may be modified by special con-
tract."
In support of the contrary doctrine, it is said, in the case of older
corporations, at least, that the common carrier, in entering the
business, was required and undertook to transport only such prop-
erty as was usually carried by similar companies at the time of its
organization and the inception of its business, and such other kinds
of property as, in the progress of invention and business methods,
might be tendered for carriage, and which did not, from its nature,
101) LIVE STOCK. 265
impose risks of a different character, or require an essentially dif-
ferent mode of management, or the incurring of extra expense for
equipment on account of its new and different character; that the
transportation of live stock by common carriers on land was un-
known to the common law at the time when their extraordinary
liabilities were fixed, making them insurers against all losses not
occurring through the act of God or the public enemy; that the
very nature and vitality of the animals, their constant tendency
and inclination to move about, jostle, crowd, trample, and injure
one another, introduces an element of hazard and risk wholly un-
known, and not contemplated in the original undertaking of the
carrier as a public servant; that, although this risk may be greatly
lessened by care, by feeding and watering, and by constant vigi
lance, there is nevertheless imposed upon the carrier a degree of
responsibility and an amount of labor so different from what is
required in the case of other kinds of property that it is neither
just nor right that he should be compelled to accept and carry live
stock under the same strict rules of liability that attach to the
carriage of other kinds of property. 6
InJterent, Pernicious Condition of Animals.
As has been already stated, it is the duty of the common car
rier to bestow upon the goods delivered to him for transportation
the kind and degree of care which their disclosed nature demands. 6
If his duty has been discharged in this respect, and, without neg-
ligence on his part, the property is destroyed or damaged by any
of the excepted perils, he w r ill not be liable. 7 The same proposition
holds true regarding the carriage of live stock. The carrier's lia-
bility is further contingent upon the inherent vice, disease, or con-
dition of the animals shipped. By "vice" is meant that abnormal
condition which, by its internal development, tends to the injury
or destruction of the animal. 8 Animals may injure or destroy them-
selves or one another; they may perish from fright, or die of starva-
tion because they refuse to eat the furnished food; they may suc-
Michigan S. & N. I. R. Co. v. McDonough, 21 Mich. 165. See, also, Lake
Shore & M. S. R. Co. v. Perkins, 25 Mich. 329.
Ante, p. 222.
7 Ante, p. 225.
s Blower v. Railway Co., L. R. 7 C. P. G55.
266 CARRIERS OF GOODS. (Ch. 6
cumb to the effects of heat or cold. These are but developments
of conditions inherent in live animals, against which the carrier
gives no absolute warranty. In these cases it is sufficient for the
carrier to show that he has not been negligent; that he has pro-
vided suitable means of transportation, and has exercised the de-
gree of care, in the circumstances, which the nature of the prop-
erty required. 9
9 Cragin v. Railroad Co., 51 N. Y. 61; Giblin v. Steamship Co., 8 Misc.
Rep. 22, 28 N. Y. Supp. 69; Armstrong v. Express Co., 159 Pa. St. 640, 28
Atl. 448. See, also, Cleveland, C., C. & St. L. Ry. Co. v. Patterson, 69 111.
App. 438; Hendrick v. Railroad Co., 170 Mass. 44, 48 N. E. 835; Comer
v. Railroad Co., 52 S. C. 36, 29 S. E. 637; Cincinnati, N. O. & T. P. Ry. Co.'s
Receiver v. Webb (Ky.) 46 S. W. 11; Richardson v. Railway Co., 61 Wis.
596, 21 N. W. 49; Illinois Cent. R. Co. v. Scruggs, 69 Miss. 418, 13 South.
698; Louisville, N. O. & T. Ry. Co. v. Bigger, 66 Miss. 319, 6 South. 234;
Smith v. Railroad Co., 12 Allen (Mass.) 531; Penn v. Railroad Co., 49 N. Y.
204. Suitable provisions having been made, and injuries occurring through
propensities, such as fright and bad temper, carrier is not liable. Evans v. Rail-
road Co., Ill Mass. 142; Regan v. Express Co., 49 La. Ann. 1579, 22 South.
835. The shipper must make known the necessity of unusual care in order
that proper precaution may be used. Wilson v. Hamilton, 4 Ohio St. 722. On
the liability of the carrier for the safe transportation of cattle as an insurer,
see Clarke v. Railroad Co., 14 N. Y. 570; Rixford v. Smith, 52 N. H. 355;
Goldey v. Railroad Co., 30 Pa, St. 242; McDaniel v. Railroad Co., 24 Iowa,
412. Delay caused by unavoidable accident, resulting in damage, does not
excuse the carrier, unless, during the delay, he used the highest degree of
care for the safety of the freight. Cincinnati, N. O. & T. P. Ry. Co.'s Re-
ceiver v. Webb (Ky.) 46 S. W. 11; Kinnick v. Railroad Co., 69 Iowa, 665,
29 N. W. 772. A carrier of live stock cannot stipulate for exemption from lia-
bility from the results of his own negligence. Moulton v. Railway Co., 31
Minn. 85, 16 N. W. 497; Kansas City, St. J. & C. B. R. Co. v. Simpson, 30
Kan. 645, 2 Pac. 821; St. Louis & S. F. Ry. v. Tribbey, 6 Kan. App. 497,
50 Pac. 458; Chicago & A. R. Co. v. Grimes, 71 111. App. 397; Leonard v.
Whitcomb, 95 Wis. 646, 70 N. W. 817. Reasonableness of contract. Kansas
& A. V. Ry. Co. v. Ayers, 63 Ark. 331, 38 S. W. 515.
102) BAGGAGE. 257
SAME BAGGAGE.
103. Carriers of passengers are common carriers of the
passengers' reasonable baggage, and are liable as
such for its safe delivery.
Obligation to Carry Baggage.
The obligation to carry his baggage is incident to and a part of
the contract to carry the passenger, and he has a right to require
that a reasonable amount be carried with him without extra charge. 1
The compensation for the carriage of the baggage is included in
that paid for the fare of the passenger. 2 The amount of baggage
may be restricted within reasonable limits, either by contract or
statute; but, in the absence of such limitation, the carrier is liable
for any amount received. 8 The liability of the carrier for bag-'
gage which it receives is that of a common carrier of goods,* un-
less the passenger is carried free, 6 or the property, legally speak-
ing, does not constitute baggage, 8 in either of which events the car-
rier is liable only as a gratuitous bailee.
102. i Originally, carriers were not held liable for baggage unless a
separate compensation was paid therefor. Middleton v. Fowler, 1 Salk. 282.
Subsequently a reasonable amount was allowed, by usage, without extra com-
pensation, but the amount was jealously restricted. Pardee v. Drew, 25 Wend.
(X. Y.) 459; Orange County Bank v. Brown, 9 Wend. (N. Y.) 85. Reasonable-
ness of regulation requiring purchase of ticket before baggage will be checked.
Coffee v. Railroad Co. (Miss.) 25 South. 157.
2 Orange County Bank v. Brown, 9 Wend. (N. Y.) 85; Hollister v. Nowlen,
19 Wend. (N. Y.) 234; Cole v. Goodwin, 19 Wend. (N. Y.) 251. It is imma-
terial that the fare was paid by a third person. Roberts v. Koehler, 30 Fed.
94.
s New York Central & H. R. R. Co. v. Fraloff, 100 U. S. 24; Merrill v.
Grinnell, 30 N. Y. 594. Where no inquiry is made by the carrier as to the
value of the baggage, and the passenger does not, by act or artifice, mislead
the carrier as to the true value, his failure to disclose the value will not
relieve the carrier of liability. New York Cent. & H. R. R. Co. v. Fraloff,
100 U. S. 24.
* Hollister v. Nowlen, 19 Wend. (N. Y.) 234.
s Flint & P. M. Ry. Co. v. Weir, 37 Mich. 111.
e See post, pp. 270. 272.
268 CARRIERS OF GOODS. (Ch. &
What Constitutes Baggage.
"The term 'baggage' includes such goods and chattels as the
convenience or comfort, the taste, the pleasure, or the protection
of passengers generally makes it fit and proper for the passenger
in question to take with him for his personal use, according to
the wants or habits of the class to which he belongs, either with
reference to the period of the transit or the ultimate purpose of
the journey." 7 In Hawkins v. Hoffman, 8 Brownson, J., suggested
as a proper test that whatever is usually carried as baggage should
be so considered: "I do not intend to say that the articles must
be such as every man deems essential to his comfort, for some
men carry nothing, or very little, with them when they travel,
while others consult their convenience by carrying many things.
Nor do I intend to say that the rule is confined to wearing ap-
parel, brushes, razors, writing apparatus, and the like, which most
persons deem indispensable. If one has books for his instruction
or amusement by the way, or carries his gun or fishing tackle,
they would undoubtedly fall within the term 'baggage,' because
they are usually carried as such. This is, I think, a good test for
determining what things fall within the rule." Some other defini-
tions are: "Only such articles as a traveler usually carries with
him for his comfort or convenience, both during the journey and
during his stay at the place of his destination;" 9 "all articles which
it is usual for persons traveling to carry with them, whether from
necessity or for convenience or amusement;" 10 "such articles of
personal convenience or necessity as are usually carried by passen-
gers for their personal use, and not merchandise, or other valu-
ables." 11
' Lawson, Bailm. 272.
s 6 Hill (N. Y.) 586.
Wood, Ry. Law, 401.
ioAng. Carr. 115.
1 1 Hutch. Carr. GTO. The criticism of Judge Story's definition in Dibble-
v. Erown, 12 Ga. 217, 226, would apply equally well to that of Mr. Lawson:.
"When we settled down with Judge Story upon the proposition that by
'baggage' is to be understood 'such articles of necessity or personal con-
venience as are usually carried by passengers, for their personal use,' we are
still without a rule for determining what articles are included in baggage;,
for such things as would be necessary to one man would not be necessary
102) BAGGAGE. 269
Same Articles Held to l)e Baggage.
Among the numerous articles which have been held to be bag-
gage when carried by a passenger, are the following: Bedding,
when the passenger is required to provide it, 12 but not otherwise; 13
clothing; 14 cloth and materials, when intended for clothing; 15 guns,
for sporting purposes, 16 pistols, 17 and rifles; 18 tools of mechanics; 19
to another. Articles which would be held but ordinary conveniences by A.
might be considered incumbrances by B. One man, from choice or habit,
or from educational incapacity to appreciate the comforts or conveniences of
life, needs, perhaps, a portmanteau, a change of linen, and an indifferent
razor; while another, from habit, position, and education, is unhappy with-
out all the appliances of comfort which surround him at home. The quantity
and character of baggage must depend very much upon the condition in life
of the traveler, his calling, his habits, his tastes, the length or shortness
of his journey, and whether he travels alone or with his family. If we
agree further with Judge Story, and say that the articles of necessity or of
convenience must be such as are usually carried by travelers for their per-
sonal use, we are still at fault, because there is, in no state of this Union,
nor in any part of any one state, any settled usage as to the baggage which
travelers carry with them for their personal use. The quantity and char-
acter of baggage found to accompany passengers are as various as are
the countenances of the travelers."
12 Hirschsohn v. Packet Co., 34 N. Y. Super. Ct. 521..
is Connolly v. Warren, 106 Mass. 14G; Macrow v. Railroad Co., L. R. 6 Q.
B. 612. Contra, Ouimit v. Henshaw, 35 Vt. 605. And see Parmelee v.
Fischer, 22 111. 212.
i* Dexter v. Eailroad Co., 42 N. Y. 326; Toledo, W. & W. Ry. Co. v. Ham-
mond, 33 Ind. 379, 382; Dibble v. Brown, 12 Ga. 217, 225; Baltimore Steam-
Packet Co. v. Smith, 23 Md. 402. Laces worth $10,000 have been held to be
baggage. New York Cent. & H. R. R. Co. v. Fraloff, 100 U. S. 24.
isMauritz v. Railroad Co., 23 Fed. 765, 21 Am. & Eng. R. Gas. 286, 292;
Van Horn v. Kermit, 4 E. D. Smith (N. Y.) 453; Duffy v. Thompson, Id. 178.
is Van Horn v. Kermit, 4 E. D. Smith (N. Y.) 453.
IT Davis v. Railroad Co., 22 111. 278. More than one revolver for a trav-
eling grocer was held unnecessary, Chicago, R. I. & P. R. Co. v. Collins, 56
111. 212; although a pair of dueling pistols and a pocket pistol was held a
proper equipment for a passenger in Woods v. Devin, 13 111. 746.
isBruty v. Railway Co., 32 U. C. Q. B. 66; Davis v. Railroad Co., 10
How. Prac. (N. Y.) 330.
19 Davis v. Railroad Co., 10 How. Prac. (N. Y.) 330; Porter v. Hildebrand,
14 Pa. St. 129. So, also, of a mechanic in watchmaking or jewelry, what
is a reasonable quantity of tools being a question for the jury. Kansas City,
Ft. S. & G. R. Co. v. Morrison, 34 Kan. 502, 9 Pac. 2i>5.
270 CARRIERS OF GOODS. (Ch. 6
surgical instruments; 20 opera glasses and telescopes; 21 watches and
jewelry, for wearing purposes; 22 dressing cases; 23 books and manu-
scripts; 24 carpets; 25 money, for expenses; 26 and merchandise has
been held to be baggage when its character is disclosed, or its nature
apparent. 27
Same Articles Held not to le Baggage.
The circumstances and the purposes for which the particular
article was being carried are often decisive of its legal character.
In the circumstances attending the particular case the following
articles have been held not to constitute baggage: Money not in-
tended for personal use; 28 cloth for dresses for a third person; 29
20 Hannibal R. Co. v. Swift, 12 Wall. 262. A dentist's Instruments, Brock
v. Gale, 14 Pla. 523.
21 Toledo, W. & W. Ry. Co. v. Hammond, 33 Ind. 379; Cooney v. Palace-
Car Co. (Ala.) 25 South. 712; Cadwallader v. Railroad Co., 9 L. C. 169.
22 McCormick v. Railroad Co.. 4 E. D. Smith (N. Y.) 181; Torpey v.
Williams, 3 Daly (N. Y.) 162; McGill v. Rowand, 3 Pa. St. 451; Coward
v. Railroad Co., 16 Lea (Tenn.) 225; American Contract Co. v. Cross, 8
Bush (Ky.) 472.
23 Cadwallader v. Railroad Co., 9 L. C. 169; Cooney v. Palace-Car Co.
(Ala.) 25 South. 712.
24 Gleason v. Transportation Co., 32 Wis. 85; Hopkins v. Westcott, 6
Blatch. 64, Fed. Gas. No. 6,692; Doyle v. Kiser, 6 Ind. 242; Texas & P.
Ry. Co. v. Morrison's Faust Co. (Tex. Civ. App.) 48 S. W. 1103.
25 Minter v. Railroad Co., 41 Mo. 503.
26 Illinois Cent. R. Co. v. Copeland, 24 111. 332 (but cf. Davis v. Rail-
road Co., 22 111. 278); Merrill v. Grinnell, 30 N. Y. 594; Orange Co. Bank
v. Brown, 9 Wend. (N. Y.) 85; Hutchings v. Railroad Co., 25 Ga. 61; Bomnr
v. Maxwell, 9 Humph. (Tenn.) 621; Doyle v. Kiser, 6 Ind. 242; Adams v.
Steamboat Co., 151 N. Y. 163, 45 N. E. 369. In Merrill v. Grinnell, 30 N.
Y. 594, $800 in gold was not considered too large an amount for the passen-
ger to carry in his trunk for the whole of the contemplated journey from
Hamburg to New York, and thence to San Francisco.
27 Stoneman v. Railway Co., 52 N. Y. 429; Sloman v. Railroad Co., 67
N. Y. 208; Hellman v. Holladay, 1 Woolw. 365, Fed. Gas. No. 6,340. Where
the carrier knows the contents of the trunk to be merchandise, and ac-
cepts it. he will be liable as a common carrier of goods. Hannibal R. Co.
v. Swift, 12 Wall. 262; Waldron v. Railroad Co., 1 Dak. 351, 46 N. W. 456;
Texas, etc., R. Co. v. Capps, 18 Cent. Law J. 211, 16 Am. & Eng. R, Gas. 118.
28 Orange Co. Bank v. Brown, 9 Wend. (N. Y.) 85; Weed v. Railroad Co.,
19 Wend. (N. Y.) 534; Whitmore v. The Caroline, 20 Mo. 513; Jordan v.
2 Dexter v. Railroad Co., 42 N. Y. 326.
102) BAGGAGE. 271
bedding and household goods; 30 presents; 31 toys; 32 medicines,
handcuffs, and locks; 33 samples of traveling salesmen; 34 watches,
in quantity; 35 bullion, and jewelry not for wearing purposes; 36
deeds and documents; 37 engravings and valuable papers; 38 and
many other articles. 39
Custom and Usage in Determining Character.
Usage and custom of the particular carrier is always relevant
in determining whether the particular article is baggage or not,
for by usage the carrier holds himself out to the traveling public
as ready and willing to carry certain classes of property, without
Railroad Co., 5 Gush. (Mass.) 69; Dunlap v. Steamboat Co., 98 Mass. 371;
Dibble v. Brown, 12 Ga. 217; Davis v. Railroad Co., 22 111. 278; Hutchings
v. Railroad Co., 25 Ga. 61. Money carried in the passenger's trunk for
transportation merely is not baggage, and, if the carrier is not informed of
its presence, he is not liable for its loss. Orange Co. Bank v. Brown, 9
Wend. (X. Y.) 85.
so Connolly v. Warren, 106 Mass. 146; Macro w v. Railroad Co., L. R. 6 Q.
B. 612; Texas & P. Ry. Co. v. Ferguson, 9 Am. & Eug. R. Cas. 395.
si Xevius v. Steamboat Co., 4 Bosw. (N. Y.) 225; The Ionic, 5 Blatchf.
538, Fed. Cas. No.. 7,059.
32 Hudston v. Railroad Co., 10 Best & S. 504 (a child's rocking horse).
33 Bomar v. Maxwell, 9 Humph. (Tenn.) 620.
s* Hawkins v. Hoffman, 6 Hill (N. Y.) 586; Pennsylvania Co. v. Miller,
35 Ohio St. 541; Texas, etc., R. Co. v. Capps, 16 Am. & Eng. R. Cas. 118;
Ailing v. Railroad Co., 126 Mass. 121; Stimson v. Railroad Co., 98 Mass. 83.
35 Belfast & B. Ry. Co. v. Keys, 9 H. L. Cas. 556.
se Cincinnati & C. A. L. R. Co. v. Marcus, 38 111. 219; Nevins v. Steam-
boat Co., 4 Bosw. (N. Y.) 225; Steers v. Steamship Co., 57 N. Y. 1; Michigan
Cent. R. Co. v. Carrow, 73 111. 348.
37 Phelps v. Railway Co., 19 C. B. (N. S.) 321.
ss Xevius v. Steamboat Co., 4 Bosw. (N. Y.) 225 (engravings); Phelps v.
Railway Co., 19 C. B. (N. S.) 321; Thomas v. Railroad Co., 14 U. C. Q. B. 389
(valuable papers).
39 Dog, transferred from coach to baggage car on demand of brakeman,
held to be baggage, Cantling v. Railroad Co., 54 Mo. 385; stage properties
held not to be baggage, Oakes v. Railroad Co., 20 Or. 392, 26 Pac. 230;
Masonic regalia held not to be baggage, Nevins v. Steamboat Co., 4 Bosw.
(X. Y.) 225; nor a sacque, muff, and napkin ring (for a man), Chicago, R.
I. & P. R. Co. v. Boyce, 73 111. 510. And see, as to hunting dog, Kansas
City, M. & B. R. Co. v. Higdon, 94 Ala. 286, 10 South. 282; Honeyman v.
Railroad Co., 13 Or. 352, 10 Pac. 628; books bought by wife for husband,
Hurwitz v. Packet Co. (City Ct. X. Y.) 56 N. Y. Supp. 379; uncrated bicycles,
State v. Railway Co., 71 Mo. Apy. oso.
272 CAERIERS OF GOODS. (Ch. 6
extra compensation, as personal baggage. In such cases he is
clearly liable as a common carrier for articles so receive:!. In
fact, such an offer to carry unusual articles as baggage is not in-
frequently a direct inducement to the selection of the particular
carrier. 40
Mercfiandise as Baggage.
It follows from what has already been said that the common
carrier of passengers is not bound to carry as baggage that which
does not, in a legal sense, properly fall within that classification. 41
The carrier may, of course, volunteer to accept any kind of prop-
erty in any amount as baggage, either in special instances or by
established usage, and in all such cases he becomes liable as a
common carrier of goods for the property so received for transporta-
tion. 42 And, if goods are so packed that their nature is obvious,
knowledge of their character on the part of the carrier will be pre-
sumed; 43 as if a roll of carpet be received as baggage. 44 But
knowledge of the nature of the contents will not necessarily be
presumed from the exterior of the package, as if a box be tendered
instead of a trunk; 48 nor will the fact that a trunk is of the kind
generally used by commercial travelers imply any notice that it con-
tains merchandise, such as samples. 46 A passenger tendering a
40 Dibble v. Brown, 12 Ga. 217; Texas, etc., R. Co. v. Capps, 16 Ani. &
Eng. R. Cas. 118. But see Ailing v. Railroad Co., 126 Mass. 121. The
course of business and practice of a railroad company in respect to the
custody of baggage passing over its line and to be transferred to a con-
necting road is of great importance in determining the nature of its liability
therefor. Ouimit v. Henshaw, 35 Vt. 605.
41 Pfister v. Railroad Co., 70 Gal. 169, 11 Pac. 686; Norfolk & W. R. Co.
v. Irvine, 84 Va. 553, 5 S. E. 532; Id., 85 Va. 217, 7 S. E. 233.
42 Jacobs v. Tutt, 33 Fed. 412; Toledo & O. C. Ry. Co. v. Dages, 57 Ohio
St. 38, 47 N. E. 1039; Trimble v. Railroad Co., 39 App. Div. 403, 57 N. Y.
Supp. 437.
43 Thomp. Carr. 523; Waldron v. Railroad Co., 1 Dak. 351, 4G N. W. 456;
Butler v. Railroad Co., 3 E. D. Smith (N. Y.) 571. If the carrier has knowl-
edge of the character of the articles, he will be liable for their safety.
Cakes v. Railroad Co., 20 Or. 392, 26 Pac. 230. And see cases collected in
Hale, Bailm. p. 385, note.
44 Minter v. Railroad Co., 41 Mo. 503.
45 Belfast & B. Ry. Co. v. Keys, 9 H. L. Cas. 556.
40 !See Michigau Cent. R. Co. v. Carrow, 73 111. 348; Ailing v. Railroad
102) BAGGAGE. 273
package to be carried as baggage impliedly represents that it con-
tains only baggage, 47 and the carrier has a right to rely on such
representation, 48 and will be liable only for gross negligence, in
the event of loss, if he has been deceived. 49 Questions put by the
carrier as to the nature of the contents must be answered truly,
and, if the passenger refuses to answer, the carrier may decline to
transport the baggage. 60
Passenger jtfust be Owner.
That the liability of the carrier as insurer of a reasonable amount
of personal baggage may attach, it is essential that the passenger
have either a general or special property in the baggage in ques-
tion. Thus, if money, placed by one passenger in the valise of an-
other, with the latter's knowledge, and by him delivered for trans-
portation as his baggage, is lost, the owner cannot recover. 61 But
Co., 126 Mass. 121; Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711.
Goods and samples of a commercial traveler are to be considered as per-
sonal baggage where their character was fully understood at the time of
their reception. Dixon v. Navigation Co., 15 Ont. App. 647, 39 Am. & Eng.
R. Cas. 425. See, also, Sloman v. Railroad Co., 67 N. Y. 208, reversing 6
Hun, 546.
47 Michigan Cent. R. Co. v. Carrow, 73 111. 348; Humphreys v. Perry, 148
U. S. 627, 13 Sup. Ct. 711; Haines v. Railroad Co., 29 Minn. 160, 12 N. W.
447. Contra, Kuter v. Railroad Co., 1 Biss. 35, Fed. Cas. No. 7,955.
* s if the transaction was a legal fraud, it is sufficient to avoid the con-
tract. Michigan Cent. R, Co. v. Carrow, 73 111. 348. See, also, Blumenthal
v. Railroad Co., 79 Me. 550, 11 Atl. 605; Hellman v. Holladay, 1 Woolw.
365, Fed. Cas. No. 6,340.
* 9 Michigan Cent. R. Co. v. Carrow, 73 111. 348; Smith v. Railroad Co.,
44 N. H. 325; Ailing v. Railroad Co., 126 Mass. 121; Blumantle v. Railroad
Co., 127 Mass. 322. And see Haines v. Railroad Co., 29 Minn. 160, 12 N.
W. 447; Pennsylvania Co. v. Miller, 35 Ohio St. 541; Greenwich Ins. Co.
v. Memphis & C. Packet Co., 4 O. L. D. 405; Bowler & Burdick Co. v.
Toledo & O. C. Ry. Co., 10 Ohio Cir. Ct. R. 272; Cahill v. Railway Co., 13
C. B. (N. S.) 818; Great Northern Ry. Co. v. Shepherd, 8 Exch. 30.
so New York Cent. & H. R. R. Co. v. Fraloff, 100 U. S. 24; Norfolk &
W. R. Co. v. Irvine, 84 Va. 553, 5 S. E. 532; Id., 85 Va. 217, 7 S. E. 233.
si Dunlap v. Steamboat Co., 98 Mass. 371; Becher v. Railroad Co., L. R.
5 Q. B. 241. Traveling man's samples, where goods are owned by employer,
Missouri Pac. Ry. Co. v. Liveright (Kan. App.) 53 Pac. 763; Cattaraugus
Cutlery Co. v. Buffalo R. & P. Ry. Co., 24 App. Div. 267, 48 N. Y. Supp. 451.
BAR.NEG. 18
274 CARRIERS OF GOODS. (Ch. 6
members of the same family may carry one another's effects, 52
and it has been held that where the plaintiff went on in advance,
leaving his baggage to be brought seven days later by his wife,
with her own baggage, defendant was liable to plaintiff for its loss. 53
But where a servant preceded his master, carrying his luggage,
the carrier was held not liable for its loss. 54
Passenger Need not Accompany Baggage.
In the absence of special agreement, or negligence on the part
of the carrier, a passenger is liable for freight charges on his bag-
gage unless he accompanies it. But if a passenger pays his fare
with an agreement as to the forwarding of his baggage, the com-
pany is liable as a common carrier, whether the baggage is for-
warded on the same, the preceding, or a subsequent train, and the
owner is not liable for any additional charge. 55 To render the car-
rier liable as an insurer, it is not, therefore, essential that the pas-
senger accompany his baggage. Neither is it essential that the
compensation be paid in advance. It is sufficient if the carrier
receives and undertakes to transport the baggage according to
an agreement, either receiving his compensation in advance or un-
dertaking to collect it when the carriage is complete. The fare paid
by the passenger is full compensation for the carriage of his rea-
sonable, personal baggage; but if baggage is subsequently for-
warded under the direction of the passenger, in the absence of spe-
cial agreement or negligence on the carrier's part, it must be paid
for as ordinary merchandise. 58
62 Dexter v. Railroad Co., 42 N. Y. 32G. But not partnership property
carried by a member of the firm. Pennsylvania R. Co. v. Knight, 58 N.
J. Law, 287, 33 Atl. 845.
es Curtis v. Railroad Co., 74 N. Y. 116.
64 Becher v. Railroad Co., L. R. 5 Q. B. 241.
65 Warner v. Railroad Co., 22 Iowa, 1G6. See, also, Shaw v. Railroad Co.,
40 Minn. 144, 41 N. W. 548; Collins v. Railroad Co., 10 Cush. (Mass.) 506;
Wilson v. Railway, 56 Me. 60; Wald v. Railroad Co., 162 111. 545, 44 N. E.
888. Railroad companies are not obliged to receive as baggage the trunk
of one who does not go by the same train. Graffam v. Railroad Co., 67
Me. 234.
ee Wilson v. Railway, 56 Me. 60. Where the passenger, with the consent
of the carrier, stops over, and permits his baggage to go on, the carrier is
liable as an insurer until a reasonable time elapses after the baggage has
reached its destination without the passenger calling for it. Logan v. Rail-
102) BAGGAGE. 275
In Custody of Passenger.
To charge the common carrier as insurer, it is essential that he
should have sole custody of the goods. 57 Kegarding the baggage
of passengers, the question of custody arises most frequently in
connection with articles retained by the passenger under his super-
vision in the same car or compartment. These cases fall naturally
into three classes:
(a) Where the passenger retains in his possession, without no-
tice, articles which are not technically baggage. In such cases
the carrier is not liable for their loss, even if it occurs through
his negligence, 58 for the reason that the carrier's liability to the
passenger is limited by his contract, and he is under no obligation
to carry more than a reasonable amount of ordinary personal bag-
gage. 59 Thus, when a passenger was violently robbed of a large
amount of bonds, which he was carrying on his person, unknown
to the carrier, the latter was held not to be liable. 60
(b) When the passenger's ordinary baggage is delivered to the
carrier, but, for the convenience of the former, is transported in
the car or state-room with the passenger where he can have access
to it, the carrier is liable as insurer. 61 A regulation forbidding
passengers to take light baggage, necessary for use during the jour-
ney, into the state room or car with them, except at their own
risk, is not a reasonable regulation. 62 W T hat constitutes a sum-
road Co., 11 Rob. (La.) 24; Chicago, R. I. & P. R. Co. v. Fairclough, 52 III.
106. But see Laffrey v. Grummond, 74 Mich. 186, 41 N. W. 894.
57 See ante, p. 218.
SB Hillis v. Railway Co., 72 Iowa, 228, 33 N. W. 643; First Nat. Bank y.
Marietta & C. R. Co., 20 Ohio St. 259; Weeks v. Railroad Co., 72 N. Y. 50.
59 Henderson v. Railroad Co., 20 Fed. 430; Id., 123 U. S. 61, 8 Sup. Ct
60.
eo Weeks v. Railroad Co., 72 N. Y. 50, 56; First Xat. Bank of Greenfield
v. Marietta & C. R. Co., 20 Ohio St. 259.
si Van Horn v. Kermit, 4 E. D. Smith (N. Y.) 453; Dunn v. Steamboat
Co., 58 Hun, 461, 12 N. Y. Supp. 406; Mudgett v. Steamboat Co., 1 Daly (X.
Y.) 151; Gore v. Transportation Co., 2 DaJy (N. Y.) 254; Macklin v. Steamboat
Co., 7 Abb. Prac. N. S. (N. Y.) 229; Walsh v. The H. M. Wright, 1 Xewb.
494, Fed. Cas. Xo. 17,115. But see Williams v. Packet Co., 3 Cent. Law J.
400: Gleason v. Transportation Co., 32 Wis. 85; Dawley v. Car Co., 109 Mass.
315. 47 X. E. 1024.
e^ Maekliu v. Steamboat Co., 7 Abb. Prac. N. S. (N. Y.) 229; Gleason v.
270 CARRIERS OF GOODS. (Ch. 6
cient delivery of baggage to the carrier, is a question involving
much perplexity and confusion of authorities. Even if the bag-
gage is ordinary and proper, and is not retained in possession by
the passenger for the purpose of taking care of it, animo custo-
diendi, the carrier will be liable only for negligence. 63 The Eng-
lish rule is supported by weight of authority, and is succinctly
stated by Cockburn, C. J., in a case where the carrier was held
liable for the loss of a chronometer, placed in a seat in a railway
carriage. After stating that such circumstances must exist as
"lead irresistibly to the conclusion that the passenger takes such
personal control and charge of his property as altogether to give
up all hold upon the company, before we can say the company, as
carriers, are relieved from liability in case of loss," 64 the learned
chief justice continues: "What really took place- appears to be
this: That, by desire of plaintiff, the porter of the company placed
the article in a carriage, upon a particular seat, which was to be
reserved for the plaintiff. I am far from saying that no case can
arise in which a passenger, having luggage which, by the terms of
the contract, the company is bound to convey to the place of desti-
nation, can release the company from the care and custody of an
article by taking it into his own immediate charge; but I think the
circumstances should be very strong to show such an intention
on the part of the passenger, and to relieve the company of their
ordinary liability. And it is not because a part of the passen-
ger's luggage, which is to be conveyed with him, is, by the mutual
consent of the company and himself, placed with him in the car-
riage in which he travels, that the company are to be considered
as released from their ordinary obligations. Nothing could be
more inconvenient than that the practice of placing small articles,
which it is convenient to the passenger to have about him in the
carriage in which he travels, should be discontinued; and if the
company were, from the mere fact of articles of this description
being placed in a carriage with a passenger, to be at once relieved'
Transportation Co., 32 Wis. 85; Mudgett v. Steamboat Co., 1 Daly (N. Y.)
151; Gore v. Transportation Co., 2 Daly (N. Y.) 254.
63 Post, p. 277.
64 Le Conteur v. Railroad Co., L. R. 1 Q. B. 54. Cf. Kinsley v. Railroad
Co., 125 Mass. 54.
102) BAGGAGE. 277
from the obligation of safe carriage, it would follow that no one
who has occasion to leave the carriage temporarily could do so con-
sistently with the safety of his property. I cannot think, there-
fore, we ought to come to any conclusion which would have the
effect of relieving the company, as carriers, from the obligation to
carry safely, which obligation, for general convenience of the public,
ought to attach to them."
It is undoubtedly the law that when a passenger does not de-
liver his property to the carrier, but retains exclusive possession
and control of it himself, . no liability rests on the carrier, in the
absence of negligence; as, for instance, where the passenger's
pocket is picked, or his overcoat or satchel is taken from a seat
occupied by him. 65 But there is no such possession or exclusive
control in the case of persons occupying berths in sleeping cars,
and the carrier is liable to them for the loss of personal effects oc-
curring through his negligence. 66 And in the case of carriers by
water the assignment of a state room to a passenger is an invita-
tion to him to place his ordinary baggage there, with the assur-
ance that it will be protected, and safely delivered. 67
(c) When articles are retained in the possession and control of
the passenger, aninio custodiendi, of a class which would be proper
baggage if delivered to the carrier, the latter is liable only for
losses occasioned by his own negligence, 68 and, a fortiori, if the
65 Tower v. Railroad Co., 7 Hill (N. Y.) 47. See, also, Hillis v. Railway
Co., 72 Iowa, 228, 33 N. W. 643.
ee Pullman Palace-Car Co. v. Freudenstein, 3 Colo. App. 540, 34 Pac. 578.
67 Hutch. Carr. 700; Mudgett v. Steamboat Co., 1 Daly (N. Y.) 151; Gore
v. Transportation Co., 2 Daly (N. Y.) 254; Walsh v. The H. M. Wright, 1
Xe-wb. 494, Fed. Cas. No. 17,115; Macklin v. Steamboat Co., 7 Abb. Prac.
X. S. (X. Y.) 229. See, also, American S. S. Co. v. Bryan, 83 Pa. St. 446;
The R. E. Lee, 2 Abb. (U. S.) 49, Fed. Cas. Xo. 11,090; Del Valle v. The
Richmond, 27 La. Ann. 90; Williams v. Packet Co., 3 Cent. Law J. 400; Ab-
bott v. Bradstreet, 55 Me. 530; Clark v. Burns, 118 Mass. 275.
es Clark v. Burns, 118 Mass. 275; Pullman Palace-Car Co. v. Pollock, 69
Tex. 120, 5 S. W. 814; The Crystal Palace v. Vanderpool, 16 B. Mon. (Ky.)
302. See, also, Tower v. Railroad Co., 7 Hill (N. Y.) 47; Runyan v. Railroad
Co., 61 N. J. Law, 537, 41 Atl. 367. The carrier is still liable for negligence.
American S. S. Co. v. Bryan, 83 Pa. St. 446; Kinsley v. Railroad Co., 125
Mass. 54; Williams v. Packet Co., 3 Cent. Law J. 400.
278 CARRIERS OF GOODS. (Ch. 6
loss is occasioned by the negligence of the passenger, there can
be no recovery.
SAME EFFECTS OF OCCUPANTS OF SLEEPING CARS.
103. Sleeping-car companies are not common carriers,
either of passengers or of their baggage.
The railroad company contracts for the transportation of both
the sleeping car and its occupants, and assumes the responsibilities
and liabilities of the carrier. Nevertheless, a sleeping-car company
is bound to use ordinary care to protect the persons and prop-
erty of its occupants, and to prevent intruders from picking the
pockets and carrying off the clothes of the passengers while they
are asleep. 1 A sleeping-car company is not an innkeeper. 2
BEGINNING OF LIABILITY.
104. The liability of the carrier attaches -when goods are
accepted by him for immediate transportation.
105. Acceptance may be presumed from conformity with
custom of carrier in this respect, or may be con-
cluded from the contract.
103. i Pullman Car Co. v. Gardner, 3 Penny. (Pa.) 78; Efron v. Car
Co., 59 Mo. App. 641; Chamberlain v. Car Co., 55 Mo. App. 474; Pullman
Palace-Car Co. v. Freudenstein, 3 Colo. App. 540, 34 Pac. 578; Lewis v. Car
Co., 143 Mass. 267, 9 N. E. 615; Pullman Palace-Car Co. v. Pollock, 69 Tex.
120, 5 S. W. 814; Same v. Gavin, 93 Tenn. 53, 23 S. W. 70; Whitney v. Car
Co., 143 Mass. 243, 9 N. E. 619; Pullman Palace-Car Co. v. Adams (Ala.) 24
South. 921; Williams v. Webb, 22 Misc. Rep. 513, 49 N. Y. Supp. 1111; Id.,
27 Misc. Rep. 508, 58 N. Y. Supp. 300; Belden v. Car Co. (Tex. Civ. App.) 43
S. W. 22; Voss v. Car Co., 16 Ind. >pp. 271, 43 N. E. 20, and 44 N. E. 1010;
Pullman Palace-Car Co. v. Hall (Ga.) 32 S. E. 923.
2 Pullman Palace-Car Co. v. Smith, 73 111. 360; Falls River & Machine Co.
v. Pullman Palace-Car Co., 6 Ohio Dec. 85, 4 Ohio N. P. 26; Pullman Palace-
Car Co. v. Hall (Ga.) 32 S. E. 923.
106) DELIVERY FOR IMMEDIATE TRANSPORTATION. 279
SAME DELIVERY FOR IMMEDIATE TRANSPORTATION.
106. The responsibility of the carrier does not attach un-
til there has been a complete delivery to him of the
goods for the purpose of immediate transportation. 1
To complete the delivery of the goods to the carrier, it is essen-
tial that the property be placed in a position to be cared for, and
under the control of the carrier or his agent, with his knowledge
and consent. 2 After the carrier has accepted the goods for ship-
ment, it is, of course, immaterial what disposition he may make
of them to suit his convenience. His liability as a carrier remains
in force. 3 But if the goods are held by the carrier pending some
further action by the shipper before they can be forwarded, the
delivery is not complete, and the carrier is not liable as such.*
So long as the goods remain in the carrier's hands for any other
purpose than immediate shipment, as, for example, awaiting some
further action by the shipper, the liability imposed is that of a
warehouseman. 5 The relation between shipper and carrier in these
104-106. i Michigan Southern & N. I. R. Co. v. Shurtz, 7 Mich. 515;
Grand Tower Mfg. & Transp. Co. v. Ullrnan, 89 111. 244; Clarke v. Needles,
25 Pa. St.. 338; Merriam v. Railroad Co., 20 Conn. 354; Blossom v. Griffin,
13 X. Y. 569; St. Louis, I. M. & S. Ry. Co. v. Murphy, 60 Ark. 333, 30 S.
W. 419; London & L. Fire Ins. Co. v. Rome, W. & O. R. Co., 144 N. Y. 200,
39 X. E. 79; Id., 68 Hun, 598, 23 N. Y. Supp. 231; Stewart v. Gracy, 93 Tenn.
314, 27 S. W. 664; Gulf, C. & S. F. Ry. Co. v. Trawick, 80 Tex. 270, 15 S.
W. 568, and 18 S. W. 948; McCullough v. Railway Co., 34 Mo. App. 23; Bar-
ron v. Eldredge, 100 Mass. 455; Illinois Cent. R. Co. v. Smyser, 38 111. 354.
2 Grosvenor v. Railroad Co., 39 N. Y. 34. See, also, Bergheim v. Railway
Co., 3 C. P. Div. 221; St. Louis, I. M. & S. Ry. Co. v. Murphy, 60 Ark. 333,
30 S. W. 419.
3 Rogers v. Wheeler, 52 N. Y. 262; Fitchburg & W. R. Co. v. Hanna, 6
Gray (Mass.) 539; Boehni v. Combe, 2 Maule & S. 172, 174; Hutch. Carr.
89.
* Michigan Southern & N. I. R. Co. v. Shurtz, 7 Mich. 515; Moses v. Rail-
road Co., 24 N. H. 71; Rogers v. Wheeler, 52 N. Y. 262; O'Neill v. Rail-
road Co., 60 N. Y. 138; Wade v. Wheeler. 3 Lans. (X. Y.) 201; Barren v.
Eldredge, 100 Mass. 455; Fitc-hburg & W. R. Co. v. Hanua, 6 Gray (Mass.)
539; St. Louis, I. M. & S. Ry. Co. v. Knight, 122 U. S. 79, 7 Sup. Ct. 1132.
s St. Louis, A. & T. H. R. Co. v. Montgomery, 39 111. 335; Barren v. El-
dredge, 100 Mass. 455; Mt. Vernon Co. v. Railroad Co., 92 Ala. 296, 8 South.
280 CARRIERS OF GOODS. (Ch. 6
circumstances is a question of law to be determined on the facts
of the individual case. 6
Place of Delivery.
The place of delivery of goods is immaterial, provided there is
an acceptance of them by the carrier. 7 But, if the delivery is not
made at a regular shipping point, no acceptance will be presumed. 8
There must be an actual acceptance by the carrier or an agent in
full authority.*
SAME ACCEPTANCE.
107. No liability attaches to the carrier until there has
been an actual or constructive acceptance by him
of the goods.
The acceptance may be either actual or constructive, 1 but there
can be no liability on the part of the carrier, as such, until he
has accepted the goods. 2 In the absence of special agreement, the
reasonable rules and regulations of the carrier as to place and
G87; O'Neill v. Railroad Co., 60 N. Y. 138; Schmidt v. Railway Co., 90 Wis.
504, 63 N. W. 1057.
e Story, Bailm. 535; Buckland v. Express Co., 2 Redf. Am. Ry. Cas. 46;
Judson v. Railroad Corp., 4 Allen (Mass.) 520; Barron v. Eldredge, 100 Mass.
455.
' Phillips v. Earle, 8 Pick. (Mass.) 182.
8 Blanchard v. Isaacs, 3 Barb. (N. Y.) 388.
Hutch. Carr. 87; Cronkite v. Wells, 32 N. Y. 247; Southern Exp. Co.
v. Newby, 36 Ga. 635. Cf. Witbeck v. Schuyler, 44 Barb. (N. Y.) 469; Mis-
souri Coal & Oil Co. v. Hannibal & St. J. R. Co., 35 Mo. 84.
107. i Merriam v. Railroad Co., 20 Conn. 354; Converse v. Transporta-
tion Co., 33 Conn. 166; Ford v. Mitchell, 21 Ind. 54; Green v. Railroad Co.,
38 Iowa, 100, 41 Iowa, 410; Wright v. Caldwell, 3 Mich. 51; Packard v.
Getman, 6 Cow. (N. Y.) 757; Freeman v. Newton, 3 E. D. Smith (N. Y.) 246;
Illinois Cent. R. Co. v. Srnyser, 38 111. 354; O'Bannon v. Express Co., 51 Ala.
481; Yoakum v. Dryden (Tex. Civ. App.) 26 S. W. 312; Evansville & T. H. R.
Co. v. Keith, 8 Ind. App. 57, 35 N. E. 296. Delivery of bill of lading not es-
sential. Meloche v. Railway Co. (Mich.) 74 N. W. 301; Berry v. Railway Co.,
122 N. C. 1002, 30 S. E. 14; Gulf, C. & S. F. Ry. Co. v. Compton (Tex. Civ.
App.) 38 S. W. 220. Delivery of warehouse receipts with order for delivery
of the goods not a constructive delivery. Stewart v. Gracy, 93 Tenn. 314, 27
S. W. 664.
2 Missouri Pac. Ry. Co. v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990.
108) TERMINATION OF LIABILITY. 281
mode of shipment will govern. And so, while a deposit of goods on
a dock would be insufficient to bind the carrier, in the absence of
notice, 3 it would be otherwise if there were an agreement that
goods might be delivered at that or any other designated place
without any notice.* In the latter case an acceptance is presumed.
There is likewise a presumption of acceptance where goods are de-
livered at a particular place, in accordance with an established
custom or usage. 5
TERMINATION OF LIABILITY.
108. The liability of a common carrier terminates -when
the transportation is completed according to the
terms of the contract. Ordinarily, this occurs either
by
(a) Delivery to the consignee, or
(b) Delivery to a connecting carrier.
Ordinarily, the liability of the common carrier does not termi-
nate until his contract of carriage is fully performed. 1 Generally,
the performance of the contract is accompanied by surrender of
possession, 2 but the possession by the carrier, as such, may termi-
nate, and the goods still be retained by him in the capacity of ware-
houseman.
s Packard v. Getiuan, G Cow. (N. Y.) 757; Merriam v. Railroad Co., 20
Conn. 354; or merely leaving them on his premises, Grosvenor v. Railroad
Co., 39 N. Y. 34; Bucknian v. Levi, 3 Camp. 414.
* Hutch. Carr. 90; Wright v. Caldwell, 3 Mich. 51.
B Lake Shore & M. S. Ry. Co. v. Foster, 104 Ind. 293, 4 N. E. 22; Wright
v. Caldwell, 3 Mich. 51; Converse v. Transportation Co., 33 Conn. 166; Mer-
riam v. Railroad Co., 20 Conn. 354; Green v. Railroad Co., 38 Iowa, 100;
Id., 41 Iowa, 410; Montgomery & E. Ry. Co. v. Kolb, 73 Ala. 396.
108. i Stone v. Waitt, 31 Me. 409; De Mott v. Laraway, 14 Wend.
(N. Y.) 225; Michigan Southern & N. I. R. Co. v. Day, 20 111. 375; Western
Transp. Co. v. Newhall, 24 111. 466.
2 But the carrier must obey instructions of shipper or owner of goods
as to their delivery. Michigan Southern & N. I. R. Co. v: Day, 20 111. 375.
The carrier's risk ends if the consignee assumes control of the goods be-
fore they Lave arrived at place of delivery. Stone v. Waitt, 31 Me. 409.
282 CARRIERS OF GOODS. (Ch. 6
SAME DELIVERY TO CONSIGNEE.
109. Delivery to the consignee is effected
(a) By a personal delivery to the consignee, -when it is
required by contract or custom; or
(b) By notice of arrival of goods and reasonable oppor-
tunity to remove them; or
(c) By the arrival (in most states) of the goods at the
usual depot of the company.
Personal Delivery.
The conditions which, at an earlier day, made the custom of per-
sonal delivery almost universal, have nearly disappeared with the
advent of improved means of transportation. 1 When, however, the
same primitive means are still employed, the requirements of de-
livery are unchanged. 2 The duty of the different kinds of carriers
as to personal delivery has been so well settled by adjudication that
it is to-day a matter of law, rather than of custom. On account
of the mode of transportation, personal delivery is not required
of either carriers by water 3 or railroads. 4 Personal delivery is,
however, required of express companies, 5 except at small stations
and villages. 6
109. i Fenner v. Railroad Co., 44 N. Y. 505.
* Fisk v. Newton, 1 Denio (N. Y.) 45; Gibson v. Culver, 17 Wend. (N. Y.)
305; Storr v. Crowley, 1 McClel. & Y. 129; Hemphill v. Clienie, 6 Watts &
S. (Pa.) 62; Eagle v. White. 6 Whart. (Pa.) 505; Bansemer v. Railway Co.,
25 Ind. 434.
s Gibson v. Culver, 17 Wend. (N. Y.) 305; Cope v. Cordova, 1 Rawle (Pa.)
203; Union Steamboat Co. v. Knapp. 73 111. 506; Chickering v. Fowler, 4
Pick. (Mass.) 371.
* Hutch. Carr. (2d Ed.) 367; Merchants' Dispatch Transp. Co. v. Hal-
lock, 64 111. 284; Thomas v. Railroad Corp., 10 Mete. (Mass.) 472; Norway
Plains Co. v. Railroad Co., 1 Gray (Mass.) 263; Fenner v. Railroad Co.,
44 N. Y. 505.
e Baldwin v. Express Co., 23 111. 197; American Merchants' Union Exp.
Co. v. Schier, 55 111. 140; Same v. Wolf, 79 111. 430; Witbeck v. Holland,
Baldwin v. Express Co., 23 111. 197; Gulliver v. Express Co., 38 111.
503. It has been held that the consignor must have known of the usage
when he shipped the goods, or he is not bound by it Packard v. Earle,
113 Mass. 280.
109) DELIVERY TO CONSIGNEE. 283
Where a persoiml delivery is necessary, it must be made to the
consignee in person, or to an authorized representative, 7 and at
a reasonable time. 8 It must be made at his residence or office, 9
and not at the foot of the stairs leading to his apartments. 10 If,
on a proper tender of delivery, the consignee refuses to accept, or
to vpay the reasonable charges, the carrier may store the goods, 11
and is no longer liable as a common carrier, 12 but as a warehouse-
man. 13 If the consignee is dead, or cannot be found after reason-
able diligence, the carrier's liability as such terminates. 14 But,
if the carrier knows that the goods are the property of the con-
signor, it is his duty to advise him of the nondelivery, 18 otherwise
if he has no knowledge as to the ownership. 16
45 N. Y. 13; American Union Exp. Co. v. Robinson, 72 Pa. St. 274; Union
Exp. Co. v. Ohleman, 92 Pa. St. 323; Marshall v. Express Co., 7 Wis. 1;
Southern Exp. Co. v. Armstead, 50 Ala. 350; Sullivan v. Thompson, 99
Mass. 259; Bennett v. Express Co., 12 Or. 49, 6 Pac. 160; Gary v. Express
Co. (Tex. Civ. App.) 40 S. W. 845.
T Southern Exp. Co. v. Everett, 37 Ga. 688; Sullivan v. Thompson, 99
Mass. 259. Delivery to clerk. Sullivan v. Thompson, 99 Mass. 259. De-
livery of consignment "in care of" another. United States Exp. Co. v.
Hammer, 21 Ind. App. 186, 51 N. E. 953.
s Marshall v. Express Co., 7 Wis. 1; Merwin v. Butler, 17 Conn. 138;
Hill v. Humphreys, 5 Watts & S. (Pa.) 123.
e Gibson v. Culver, 17 Wend. (N. Y.) 305; Fisk v. Newton, 1 Denio (N.
Y.) 45; Duff v. Budd, 3 Brod. & B. 177; Storr v. Crowley, 1 McClel. & Y.
129; Hyde v. Navigation Co., 5 Term R. 389.
10 Haslam v. Express Co., 6 Bosw. (N. Y.) 235.
11 Schouler, Bailm. 513. And see Hawkins v. The Hattie Palmer, 63 Fed.
1015.
12 storr v. Crowley, 1 McClel. & Y. 129; Illinois Cent. R. Co. v. Carter,
165 111. 570, 46 N. E. 374; Manhattan Rubber Shoe Co. v. Chicago, B. & Q.
' R. Co., 9 App. Div. 172, 41 N. Y. Supp. 83.
is Weed v. Barney, 45 N. Y. 344; Gibson v. Express Co., 1 Hun, 387.
i* Adams Exp. Co. v. Darnell, 31 Ind. 20; Marshall v. Express Co., 7
Wis. 1; Clendaniel v. Tuckerman, 17 Barb. 184; Roth v. Railroad Co., 34
N. Y. 548; Alabama & Tenn. R. Co. v. Kidd, So Ala. 209; Hasse v. Ex-
press Co., 94 Mich. 133, 53 N. W. 918.
is American Merchants' Union Exp. Co. v. Wolf, 79 111. 430; Stephenson
v. Hart, 4 Bing. 476, 484.
is Kremer v. Express Co., 6 Coldw. (Tenn.) 356; Fisk v. Newton, 1
Denio (N. Y.) 45; Weed v. Barney, 45 N. Y. 344; Neal v. Railroad Co.. 8
Jones, Law (N. C.) 482; Manhattan Rubber Shoe Co. v. Railroad Co., 9
284 CARRIKRS OF GOODS. (Ch. 6
D livery of Goods C. D.
When the carrier receives goods for transportation C. O. D., the
additional duty devolves on him to collect and return the money
to the shipper. 17 Such liability arises, however, only from con-
tract, express or implied; 18 but a previous course of dealing be-
tween the parties may imply such contract. 19 In all such cases the
instructions of the consignor form part of the contract of delivery,
and must be fully carried out. 20
Notice of Arrival Carriers ty Water.
The carrier of goods by water need not make a personal deliv-
ery, 21 but may land them at a wharf at the port of destination. 22
If no other point is designated, 23 they should be landed at the usual
wharf. 24
Ordinarily, if there is but one consignee, or if all consignees are
unanimous, the carrier should consult their convenience as to one
of several wharves within the same port. 25 Where there is a num-
App. Div. 172, 41 N. Y. Supp. 83. Mr. Hutchlnson thinks that when the
consignee refuses to receive the goods there should be a presumption of
ownership in the consignor. Hutch. Carr. (2d Ed.) 384.
17 United States Exp. Co. v. Keefer, 59 Ind. 263. As to the carrier's
liability for the safe return of the money, see Harrington v. McShane, 2
Watts (Pa.) 443.
is American Exp. Co. v. Lesem, 39 111. 313; Chicago & N. R. Co. v. Mer-
rill, 48 111. 425; Southern Ry. Co. v. Kinchen, 103 Ga. 186, 29 S. E. 816;
Louisville & N. R. Co. v. Hartwell, 99 Ky. 436, 36 S. W. 183.
is American Exp. Co. v. Lesem, 39 111. 313.
20 Murray v. Warner, 55 N. H. 546; Meyer v. Lemcke, 31 Ind. 208; Feiber
v. Telegraph Co. (Com. -PI.) 3 N. Y. Supp. 116; Libby v. Ingalls, 124 Mass.
503. But the consignor may ratify a delivery not in accordance with his
instructions. Rathbun v. Steamboat Co., 76 N. Y. 376.
21 Ante, p. 282.
22 Chickering v. Fowler, 4 Pick. (Mass.) 371; Segura v. Reed, 3 La. Ann.
695; Goodwin v. Railroad Co., 50 N. Y. 154, 10 Am. Rep. 457; Scott v.
Province, 1 Pittsb. R. 189.
23 Johnston v. Davis, 60 Mich. 56, 26 N. W. 830.
24 Richmond v. Steamboat Co., 87 N. Y. 240; The Boston, 1 Low. 464,
Fed. Gas. No. 1,671; The E. H. Fittler, 1 Low. 114, Fed. Cas. No. 4,311;
Montgomery v. The Port Adelaide, 38 Fed. 753; Dovato v. Barrels of Plum-
bago, 20 Fed. 510; Gatliffe v. Bourne, 4 Bing. (X. C.) 314; Salmon Falls
Mfg. Co. v. The Tangier, 1 Cliff. 396, Fed. Cas. No. 12,266.
so Richmond v. Steamboat Co., 87 N. Y. 240; Dixon v. Dunham, 14 111.
109) DELIVERY TO CONSIGNEE. 285
ber of consignees, the same rule obtains as to the convenience of
a majority, if the preference is made known to the master within
a reasonable time. 28
A reasonable time must be allowed by the carrier for removal
of the goods, and he cannot require their removal on Sunday, or
on a legal holiday on which labor is forbidden. 27 And until the
goods have been placed by the carrier in a situation favorable for
removal, his liability as insurer continues. 28 But the consignee is
bound to act with due promptness in removing the goods, and his
failure to do so will relieve the carrier of his liability as insurer. 29
The carrier must use due diligence to discover and notify the con-
signee of the arrival of the goods, and his failure to do so will ren-
der him liable for consequent damages. 30 The circumstances of
each case control in determining what is due diligence in this re-
spect, and is always a question of fact for the jury. 31 Reasonable
notice and reasonable time are such as give the consignee time
enough, under all proper and ordinary circumstances, and proceed-
ing in the ordinary mode of those engaged in the same business,
324; The Sultana v. Chapman, 5 Wis. 454; The E. H. Fittler, 1 Low. 114,
Fed. Cas. No. 4,311; O'Rourke v. Tons of Coal, 1 Fed. 619; Teilman v.
Plock, 21 Fed. 349; The Mascotte, 2 C. C. A. 400, 51 Fed. 606.
26 The E. H. Fittler, 1 Low. 114, Fed. Cas. No. 4,311; The Boston, 1 Low.
464, Fed. Cas. No. 1,671; Devato v. Barrels of Plumbago, 20 Fed. 510.
27 Richardson v. Goddard, 23 How. 28; Gates v. Ryan, 37 Fed. 154. As
to the Fourth of July, see Russell Mfg. Co. v. New Haven Steamboat Co.,
50 X. Y. 121; Scheu v. Benedict, 116 N. Y. 510, 22 N. E. 1073.
2 s The Eddy, 5 Wall. 481; The Ben Adams, 2 Ben. 445, Fed. Cas. No.
1,289; Goodwin v. Railroad Co., 58 Barb. (X. Y.) 195. See, also, Xorton v.
The Richard Winslow, 67 Fed. 259; Kirk v. Railway Co., 59 Minn. 161,
60 X. W. 1084.
29 Redmond v. Steamboat Co., 46 X. Y. 578; Hedges v. Railroad Co., 49
N. Y. 223; Liverpool & G. W. Steam Co. v. Suitter, 17 Fed. 695; De Grau
v. Wilson, Id. 698; Constable v. Steamship Co., 154 U. S. 51, 14 Sup. Ct.
1062, 38 L. Ed. 903.
so Zinn v. Steamboat Co., 49 X. Y. 442; Sherman v. Railroad Co., 64 X.
Y. 254; Union Steamboat Co. v. Knapp, 73 111. 506; Illinois Cent. R. Co. v.
Carter, 62 111. App. 618; Price v. Powell, 3 N. Y. 322; Barclay v. Clyde,
2 E. D. Smith (X. Y.) 95.
si Zinii v. Steamboat Co., 49 X. Y. 442.
286 CARRIERS OF GOODS. (Ch. &
to provide for the care and removal of the goods. 32 The obliga-
tions as to delivery are the same with carriers by inland waters
as by sea. 88 The giving of notice may be waived by custom of the
parties, 84 or a usage dispensing with notice may be shown by the
carrier. 36 But no such usage, or contract waiving notice, will re-
lieve the carrier from losses occurring through his negligence. 36
The carrier is not justified in abandoning or exposing to injury
goods which the consignee refuses or fails to accept. 37 In such
a contingency it is his duty to see them properly stored, whereby
the liability is shifted from the carrier to the warehouseman. 38 But,
so long as he has the custody of the goods, notwithstanding the
fact of a constructive delivery, it is his duty to use ordinary care
to protect and preserve the property. 39
Delivery Tyy Railroad Companies.
In some states it is held that the rule as to delivery is the same
which governs carriers by water. 40 It is said that the liability of
32 Hale, Bailm. & Carr. p. 455; Constable v. Steamship Co., 154 U. S.
51, 14 Sup. Ct. 1062.
ss Me Andrew v. Whitlock, 52 N. Y. 40.
34 Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121; Ely v.
Same, 53 Barb. (N. Y.) 207.
ss Gibson v. Culver, 17 Wend. (N. Y.) 305; McMasters v. Railroad Co., 69
Pa. St. 374; Dixon v. Dunham, 14 111. 324; Crawford v. Clark, 15 111. 161;
Farmers' & Mechanics' Bank v. Champlain Transp. Co., 16 Vt. 52, 23 Vt. 186;
Sleade v. Payne, 14 La. Ann. 453; Stone v. Rice, 58 Ala. 95; Gatliffe v.
Bourne, 4 Bing. N. C. 314, 329; Garsicle v. Navigation Co., 4 Term R. 581.
86 The Surrey, 26 Fed. 791; The Spartan, 25 Fed. 44, 56; New Jersey Steam
Nav. Co. v. Merchants' Bank, 6 How. 344; Bank of Kentucky v. Adams Exp.
Co., 93 U. S. 174; Mynard v. Railroad Co., 71 N. Y. 180; The Hadji, 20 Fed.
875.
ST Hermann v. Goodrich, 21 Wis. 543; Merwin v. Butler, 17 Conn. 138;
Chickering v. Fowler, 4 Pick. (Mass.) 371; Dean v. Vaccaro, 2 Head (Tenn.)
488; Shenk v. Propeller Co., 60 Pa. St. 109; Northern v. Williams, 6 La. Ann.
578; Segura v. Reed, 3 La. Ann. 695; Tarbell v. Shipping Co., 110 N. Y. 170,
17 N. E. 721; Redmond v. Steamboat Co., 46 N. Y. 578; McAndrew v. Whit-
lock, 52 N. Y. 40; The City of Lincoln, 25 Fed. 835, 839; Richardson v.
Goddard, 23 How. 28, 39; The Graf ton, 1 Blatchf. 173, Fed. Cas. No. 5,655.
ss Redmond v. Steamboat Co., 46 N. Y. 578.
8 Tarbell v. Shipping Co., 110 N. Y. 170, 17 N. E. 721.
*o Moses v. Railroad Co., 32 N. H. 523; Anniston & A. R. Co. v. Ledbetter,.
92 Ala. 326, 9 South. 73; Columbus & W. Ry. Co. v. Ludden, 89 Ala. 612, T
109) DELIVERY TO CONSIGNEE. 287
the railroad as a carrier terminates only with its control over the-
goods, and that control must be deemed to continue until there has
been some act which is legally equivalent to a delivery. 41 Under
this rule the carrier must notify the consignee of the arrival of the
goods, and allow him a reasonable time for their removal. 42 Pe-
culiar or unusual circumstances of the consignee will not be con-
sidered in determining what is a reasonable time. 43 If the goods
are held longer than a reasonable tune, to suit the convenience of
the consignee, the carrier becomes merely a bailee for hire. 44 So,
also, if the consignee or his authorized agent is present, and sees
the arrival of the goods, and has an opportunity to take them.
South. 471; Louisville & X. R. Co. v. Oden, 80 Ala, 38; Missouri Pac. Ry.
Co. v. Nevill, 60 Ark. 375, 30 S. W. 425; Missouri Pac. Ry. Co. v. Wichita
Wholesale Groceiy Co., 55 Kan. 525, 40 Pac. 899; Leavenworth, L. & G. R.
Co. v. Mails, 16 Kau. 333; Jeft'ersonville R. Co. v. Cleveland, 2 Bush (Ky.)-
4GS; Maignan v. Railroad Co., 24 La. Ann. 333; Buckley v. Railroad Co., 18
Mich. 121; Feige v. Railroad Co., 62 Mich. 1. 28 N. W. 685; Pinney v. Rail-
road Co., 19 Minn. 251 (Gil. 211); Derosia v. Railroad Co., 18 Minn. 133 (GiL
119); Kirk v. Railway Co., 59 Minn. 161, 60 N. W. 1084; Mills v. Railroad
Co., 45 X. Y. 622; Hedges v. Railroad Co., 49 X. Y. 223; Rawson v. Holland.
59 X. Y. 611; McKinney v. Jewett, 90 X. Y. 267; McDonald v. Railroad Corp.^
34 X. Y. 497; Fenner v. Railroad Co., 44 X. Y. 505; Sprague v. Railroad Co.,
52 X. Y. 637; Faulkner v. Hart, 82 X. Y. 413; Pelton v. Railroad Co., 54 X.
Y. 214; Tarbell v. Shipping Co., 110 X. Y. 170, 17 N. E. 721; Lake Erie & W.
R. Co. v. Hatch, 52 Ohio St. 408, 39 X. E. 1042; Gaines v. Insurance Co.,
28 Ohio St. 418; Hirsch v. The Quaker City, 2 Disn. (Ohio) 144; Lake Erie-
& W. R. Co. v. Hatch, 6 Ohio Cir. Ct. R. 230; Ouimit v. Henshaw, 35 Vt.
604; Blumenthal v. Brainerd, 38 Yt. 402; Winslow v. Railroad Co., 42 Vt.
700; Wood v. Crocker, 18 Wis. 345; Parker v. Railway Co., 30 Wis. 689;
Lenike v. Railway Co., 39 Wis. 449; Michigan Cent. R. Co. v. Mineral Springs
Mfg. Co., 16 Wall. 318. This is also the rule in England. Mitchell v. Rail-
way Co., L. R. 10 Q. B. 256.
41 Moses v. Railroad Co., 32 X. H. 523.
Roth v. Railroad Co., 34 X. Y. 548; Hedges v. Railroad Co., 49 N. Y.
223; Lemke v. Railway Co., 39 Wis. 449; Columbus & W. Ry. Co. v. Ludden,
89 Ala. 612, 7 South. 471.
43 Moses v. Railroad Co., 32 X. H. 523; Wood v. Crocker, 18 Wis. 345;
Lenike v. Railway Co., 39 Wis. 449; Derosia v. Railroad Co., 18 Minn. 133
(Gil. 119); Pinney v. Railroad Co., 19 Minn. 251 (Gil. 211); Railroad Co. v.
Maris, 16 Kau. 333.
" Moses v. Railroad Co., 32 X. H. 523; Frank v. Railway Co., 57 Mo. App.
ISL
288 CARRIERS OF GOODS. (Ch.
away. 48 And in such circumstances the carrier may charge a rea-
sonable amount for storage. 48
Arrival at Depot.
Under the Massachusetts rule the liability of the railroad com-
pany as a common carrier ceases when the goods arrive at the
destination, and are transferred from the cars to the warehouse
of the company. 47 This rule has been followed in a large number
of states, and may now be considered as embodying the generally
accepted doctrine on this point. 48 If it is the duty of the consignee
to unload the goods from the car in which they arrive, the car-
rier's liability does not terminate until it has placed the car in a
position suitable for the purpose. 49
* 5 Moses v. Railroad Co., 32 N. H. 523; Miller v. Mansfleld, 112 Mass.
260; Ban-on v. Eldredge, 100 Mass. 455; Goold v. Chapin, 20 N. Y. 259; Weed
v. Barney, 45 N. Y. 344; Tarbell v. Shipping Co., 110 N. Y. 170, 17 N. E.
721; Brown v. Raihvay Co., 54 N. H. 535; Kennedy v. Railroad Co., 74 Ala.
430; Alabama & T. R. Co. v. Kidd, 35 Ala. 209; Cairns v. Robins, 8 Mees.
& W. 258; Mitcbell v. Railway Co., L. R. 10 Q. B. 256.
46 White v. Humphrey, 11 Q. B. 43; Norfolk & W. R. Co. v. Adams, 90
Va. 393, 18 S. E. 673; Baumbach v. Railway Co., 4 Tex. Civ. App. 650, 23 S.
W. 693; Cairns v. Robins, 8 Mees. & W. 258.
47 Norway Plains Co. v. Boston & M. R. Co., 1 Gray (Mass.) 263; Rice v.
Hart, 118 Mass. 201.
48 Jackson v. Railway Co., 23 Cal. 268 (but see Wilson v. Railroad Co., 94
Cal. 166, 29 Pac. 861); Southwestern R. Co. v. Felder, 46 Ga. 433; Rome R.
Co. v. Sullivan, 14 Ga. 277, 282; Porter v. Railroad Co., 20 111. 407; Richards
v. Railroad Co., Id. 404; Chicago & A. R. Co. v. Scott, 42 111. 132; Mer-
chants' Dispatch Transp. Co. v. Hallock, 64 111. 284; Rothschild v. Railroad
Co., 69 111. 164; Bansemer v. Railway Co., 25 Ind. 434; Cincinnati & A. L.
R. Co. v. McCool, 26 Ind. 140; Pittsburgh, C. & St. L. Ry. Co. v. Nash, 43
Ind. 423, 426; Mohr v. Railroad Co., 40 Iowa, 579; Francis v. Railroad Co.,
25 Iowa, 60; Independence Mills Co. v. Burlington, C. R. & N. Ry. Co., 72
Iowa, 535, 34 N. W. 320; Norway Plains Co. v. Boston & M. R. Co., 1 Gray
(Mass.) 263; Rice v. Hart, 118 Mass. 201; Holtzclaw v. Duff, 27 Mo. 392;
Gashweiler v. Railway Co., 83 Mo. 112; Rankin v. Railroad Co., 55 Mo. 167;
Buddy v. Railway Co., 20 Mo. App. 206; Piudell v. Railway Co., 34 Mo. App.
675, 683; Neal v. Railroad Co., 53 N. C. 482; Morris & E. R. Co. v. Ayres,
121) N. J. Law, 393; McCarty v. Railroad Co., 30 Pa. St. 247; Shenk v. Pro-
peller Co., 60 Pa. St. 109; Hipp v. Railway Co., 50 S. C. 129, 27 S. E. 623.
49 Independence Mills Co. v. Burlington, C. R. & N. Ry. Co., 72 Iowa. 535,
34 N. W. 320; East Tennessee, V. & G. R. Co. v. Hunt, 15 Lea (Tenu.) 201.
B
10'J) DELIVERY TO CONSIGNEE. 289
Baggage.
In the case of baggage the passenger is entitled to a reasonable
length of time after its arrival in which to remove it, and during
this interval the liability of the carrier as an insurer continues. 50
The decisions are by no means unanimous in determining the length
of time that may be called reasonable in this connection, but it
may be safely stated that it is generally held to be much less than
that allowed for the removal of freight, 51 and in several cases where
the passenger and baggage arrived at night it was held an unrea-
sonable delay to postpone the removal of the baggage until the fol-
lowing morning. 52 If delay occurs by reason of the fault of the
carrier, the latter's liability is not, of course, permitted to be ter-
minated thereby. 53 And, in any event, the carrier must use ordi-
nary care to protect the baggage, and is liable, even after the lapse
of a reasonable time, as a warehouseman. 5 *
so Ouimit v. Henshaw, 35 Vt. 604; Hoeger v. Railway Co., 63 Wis. 100,
23 X. W. 435; Pennsylvania Co. v. Liveright, 14 Ind. App. 318, 41 N. E. 350;
Hurwitz v. Packet Co. (City Ct. N. Y.) 56 N. Y. Supp. 379; Patscheider v.
Railway Co., 3 Exch. Div. 153.
si Chicago & A. R. Co. v. Addizoat, 17 111. App. 632; Patscheider v. Rail-
way Co., 3 Exch. Div. 153.
52 Jacobs v. Tutt, 33 Fed. 412; Louisville, C. & L. R. Co. v. Mahan, 8 Bush
(Ky.) 184; Roth v. Railroad Co., 34 N. Y. 548; Ross v. Railroad Co., 4 Mo.
App. 583; Graves v. Railroad Co., 29 App. Div. 591, 51 N. Y. Supp. 636;
Kansas City, Ft. S. & M. Ry. Co. v. McGahey, 63 Ark. 344, 38 S. W. 659.
Arrival on Sunday, notwithstanding a statute prohibiting travel on that day,
will, not excuse delay. Jones v. Transportation Co., 50 Barb. (N. Y.) 193;
Hoeger v. Railway Co., 63 Wis. 100, 23 N. W. 435; Van Horn v. Kermit, 4 E.
D. Smith (N. Y.) 453; Burnell v. Railroad Co., 45 N. Y. 184; Holdridge v.
Railroad Co., 56 Barb. (X. Y.) 191.
53 Dininny v. Railroad Co., 49 X. Y. 546; Kansas City, Ft. S. & G. R. Co.
v. Morrison, 34 Kan. 502, 9 Pac. 225; Prickett v. Xew Orleans Anchor Line,
13 Mo. App. 436.
5-t Burnell v. Railroad Co., 45 X. Y. 184; Mattison v. Railroad Co., 57 N.
Y. r.r.l'; Fairfax v. Railroad Co., 67 X. Y. 11; Chicago, R. I. & P. R. Co. v.
Fairclough, 52 111. 106; Bartholomew v. Railroad Co., 53 111. 227; Mote v.
Railroad Co., 27 Iowa, 22; Rome R. R. v. Wimberly, 75 Ga. 316; Kansas
City, Ft. S. & M. R. Co. v. Patten, 3 Kan. App. 338, 45 Pac. 108. As to what
is a proper place to store baggage, see Hoeger v. Railway Co., 63 Wis. 100,
23 X. W. 435; St. Louis & C. R. Co. v. Hardway, 17 111. App. 321.
BAR.XEG. 19
290 CAERIERS OF GOODS. (Ch. 6
Since the baggage, in the ordinary course of transportation, ar-
rives at the same time as the passenger, no notice of its arrival is
held to be necessary.
SAME DELIVERY TO CONNECTING CARRIER.
110. The initial carrier is not liable for losses occurring
after the goods have been delivered to a connect-
ing carrier, unless he has undertaken by special
contract to convey the goods to their destination.
So far as the common law is concerned, the relations and obliga-
tions existing between the initial carrier and the connecting car-
rier, as to the reception and delivery of the goods, are the same
as those existing between the carrier and the individual shipper. 1
Who is a Connecting Carrier.
A connecting carrier is one whose line forms one of the links
in the chain of transportation between the point of reception and
destination. The connecting carrier may be the agent of either
the first carrier, where the contract of carriage is to deliver at the
destination, or the agent of the shipper, where the contract is to
deliver to the next carrier. 2
The Delivery.
Where, under the circumstances, or by virtue of the contract, the
carrier is obligated to carry safely only to the end of his own line,
his liability as an insurer is not terminated until a complete deliv-
ery has been made to the connecting carrier. This additional obli-
gation is assumed by the reception of the goods billed to a point
remote from the initial line. 3 To constitute a delivery of this na-
110. i ShelbyviUe R. Co. v. Railroad Co., 82 Ky. 541.
2 Nanson v. Jacob, 12 Mo. App. 125, 127; Western & A. R. Co. v. Expo-
sition Cotton Mills, 81 Ga. 522, 7 S. E. 916. But see Missouri Pac. Ry. Co.
v. Wichita Wholesale Grocery Co., 55 Kan. 525, 40 Pac. 899; Union Pac. Ry.
Co. v. Vincent (Neb.) 78 N. W. 457; St Louis S. W. Ry. Co. v. Elgin Con-
densed Milk Co., 74 111. App. 619.
a Myrick v. Railroad Co., 107 TJ. S. 102, 1 Sup. Ct. 425; Hoffman v. Rail-
way Co. (Kan. App.) 56 Pac. 331; American Roofing Co. v. Memphis & C.
Packet Co., 5 Ohio N. P. 146; Fremont, E. & M. V. R. Co. v. Waters, 50 Neb.
592, 70 N. W. 225; Hoffman v. Railroad Co., 85 Md. 391, 37 Atl. 214. Ship-
DELIVERY TO CONNECTING CARRIER. 231>
ture, the act must be so complete as to impose on the connecting
line the liability of an insuring carrier. 4 This is in accordance
with prevailing custom, and imposes no hardship. When the ship-
per surrenders possession and control of his goods, it is but right
that the responsibility for their safety should be definitely placed,
and continued until they arrive at their destination.
Th rough Transportat ion Liab ility for.
The common carrier is not obligated to transport goods beyond
the terminus of its own line, or to contract for such further trans-
portation. 5 But it may, by express contract, enlarge its liability,
and even become an insurer of the goods during the entire course
of their journey, and while passing over the lines of connecting car-
riers. 6 In such cases the latter become agents of the initial car-
ping directions must be delivered. Bosworth v. Railway Co., 30 C. C. A. 541,
87 Fed. 72. If the goods are forwarded by a different carrier, contrary to the
shipper's orders, the initial carrier is liable for any loss sustained. Isaacson
v. Raiload Co., 94 N. Y. 278; Johnson v. Railroad Co., 33 N. Y. 610; Georgia
R. Co. v. Cole, 68 Ga. 623. The carrier undertaking to forward from the-
terruinus of his own line must transmit all special instructions or become lia-
ble for resulting loss. Little Miami R. Co. v. Washburn, 22 Ohio St. 324;
Dana v. Railroad Co., 50 How. Prac. (N. Y.) 428. A carrier acting as for-
warding agent for the owner of goods, in transmitting directions to subsequent
carriers, is liable only for want of reasonable diligence and care. Northern
R. Co. v. Railroad Co., 6 Allen (Mass.) 254.
< Wehmann v. Railway Co., 58 Minn. 22, 59 N. W. 546. A mere notifica-
tion to the succeeding carrier to take the goods, which he does not do, is
not a delivery. Goold v. Chapin, 20 N. Y. 259. See, also, Condon v. Railroad
Co., 55 Mich. 218, 21 N. W. 321; Lawrence v. Railroad Co., 15 Minn. 390
(Gil. 313); Wood v. Railway Co., 27 Wis. 541; Conkey v. Railway Co., 31
Wis. 619. The fact that a part of the goods were taken from the initial car-
rier, and the rest of the goods were pointed out, and ready to be taken, does
not necessarily make a constructive delivery of the whole. Gass v. Railroad
Co., 99 Mass. 220. Where there are no public means of transportation beyond
terminus of initial carrier's line, he may properly deliver to warehouseman or
wharfinger. Hermann v. Goodrich, 21 Wis. 543.
5 Berg v. Railroad Co., 30 Kan. 561, 2 Pac. 639; Cincinnati, N. O. & T.
P. Ry. Co. v. X. K. Fairbanks & Co., 33 C. C. A. 611, 90 Fed. 467.
eBurtis v. Railroad Co., 24 X. Y. 269, 272; Root v. Railroad Co., 45 N.
Y. 524, 532; Quimby v. Vanderbilt, 17 X. Y. 306; Hill Mfg. Co. v. Boston)
& L. R. Corp.. 104 Mass. 122; Gray v. Jackson, 51 X. H. 9; Phillips v.
Railroad Co.. 78 X. C. 204: Railroad Co. v. Pratt, 22 Wall. 123; Woodward'
v. Railroad Co., 1 Biss. 403, Fed. Cas. Xo. 18,006; Atchison, T. & S. F. Ry.
292 CARRIERS OF GOODS. (Ch. 6
rier, for whose default it is liable. Such a contract, however, will
not be inferred from ambiguous agreements or doubtful circum-
stances. It must be supported by clear and satisfactory evidence. 7
It is not essential that it be framed in express words. The ex-
tended liability may be raised by implication from strong circum-
stances or special words in the bill of lading or receipt. 8 The fol-
lowing circumstances, in the courts following the general rule that
the carrier is prima facie liable for losses on its own line, are evi-
dence, but not conclusive, of a through contract: 9 The use of the
words "to forward," or "to be forwarded," in the carrier's receipt; 10
a receipt or bill of lading which purports to be a through con-
tract; 11 the giving of a through rate; 12 the prepayment of freight
Co. v. Grant, 6 Tex. Civ. App. 674, 26 S. W. 286; Central Railroad & Bank-
ing Co. v. Georgia Fruit & Vegetable Exchange, 91 Ga. 389, 17 S. E. 904;
Benett v. Steamboat Co., 6 C. B. 775. But see dicta per contra in Hood v.
Railroad Co., 22 Conn. 502; Converse v. Transportation Co., 33 Conn. 166;
Naugatuck R. Co. v. Waterbury Button Co., 24 Conn. 468; Elmore v. Rail-
road Co., 23 Conn. 457. As to liability for delay, see International & G. N.
Ry. Co. v. Anderson, 3 Tex. Civ. App. 8, 21 S. W. 691.
7 Myrick v. Railroad Co., 107 U. S. 102, 1 Sup. Ct. 425. Making through
rate will not make carrier liable for acts of connecting carrier. Gulf, W.
T. & P. Ry. Co. v. Griffith (Tex. Civ. App.) 24 S. W. 362.
s Berg v. Steamship Co., 5 Daly (N. Y.) 394; Robinson v. Transportation
Co., 45 Iowa, 470; Piedmont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353;
Illinois Cent. R. Co. v. Kerr, 68 Miss. 14, 8 South. 330; Candee v. Railroad
Co., 21 Wis. 582; International & G. N. Ry. Co. v. Tisdale, 74 Tex. 8, 11 S.
W. 900; Railroad Co. v. Androscoggin Mills, 22 Wall. 594. And see Camden
& A. R. Co. v. Forsyth, 61 Pa. St. 81.
a Root v. Railroad Co., 45 N. Y. 524, 532; Hill Mfg. Co. v. Boston & L. R.
Corp., 104 Mass. 122; Camden & A. R. Co. v. Forsyth, 61 Pa. St. 81; Pied-
mont Mfg. Co. v. Columbia & G. R. Co., 19 S. C. 353; Woodward v. Railroad
Co., 1 Biss. 403, Fed. Cas. No. 18,006.
10 Reed v. Express Co., 48 N. Y. 462; Mercantile Mut. Ins. Co. v. Chase,
1 E. D. Smith (N. Y.) 115; Wilcox v. Parmelee, 3 Sandf. (N. Y.) 610; Schroe-
der v. Railroad Co., 5 Duer (N. Y.) 55; Buckland v. Express Co., 97 Mass. 124;
Nashua Lock Co. v. Worcester & N. R. Co., 48 N. H. 339; Cutts v. Braiii-
erd, 42 Vt. 566; East Tennessee & V. R. Co. v. Rogers, 6 Heisk. (Tenn.)
143; St. Louis, K. C. & N. Ry. Co. v. Piper, 13 Kan. 376; Coif ax Moun-
tain Fruit Co. v. Southern Pac. Co., 118 Cal. 648, 50 Pac. 775, 40 Lawy.
Rep. Ann. 78.
nHelliwell v. Railway Co., 7 Fed. 68; Richardson v. The Charles P.
12 See note 12 on following page.
110) DELIVERY TO CONNECTING CARRIER. 293
for the entire distance; 13 the carrier's holding out to convey over
the entire distance; 14 or an agreement that the goods be carried
through in a particular car. 15 In the states following the English
rule, these circumstances are conclusive of a through contract. 16
In the large majority of our states the carrier does not assume this
Chouteau, 37 Fed. 532; Harp v. The Grand Era, 1 Woods, 184, Fed. Cas.
No. 6,084; Myrick v. Railroad Co., 9 Biss. 44, Fed. Cas. No. 10,001; Houston
& T. C. R. Co. v. Park, 1 White & W. Civ. Cas. Ct. App. 332; Texas &
P. R. Co. v. Parrish, Id. 942; Loomis v. Railway Co., 17 Mo. App. 340;
Moore v. Henry, 18 Mo. App. 35; Wiggins Ferry Co. v. Chicago & A. R.
Co., 73 Mo. 389.
12 Weed v. Railroad Co., 19 Wend. (N. Y.) 534; Berg v. Steamship Co.,
5 Daly (N. Y.) 394; Clyde v. Hubbard, 88 Pa. St. 358; Candee v. Railroad
Co., 21 Wis. 589; Aiken v. Railway Co., 68 Iowa. 363, 27 N. W. 281; Rail-
road Co. v. Androscoggin Mills, 22 Wall. 594. But see McCarthy v. Rail-
road Co., 9 Mo. App. 159; East Tennessee & G. R. Co. v. Montgomery, 44
Ga. 278.
is Berg v. Steamship Co., 5 Daly (N. Y.) 394; Candee v. Railroad Co., 21
Wis. 589; Weed v. Railroad Co., 19 Wend. (N. Y.) 534; Piedmont Mfg.
Co. v. Columbia & G. R. Co., 19 S. C. 353; Illinois Cent. R. Co. v. Kerr, 68
Miss. 14, 8 South. 330.
i* Lawson, Bailrn. 103; Root v. Railroad Co., 45 N. Y. 524; Collender
v. Dinsmore, 55 N. Y. 200; Toledo, P. & W. Ry. Co. v. Merriman, 52 111.
123; Hill Mfg. Co. v. Boston & L. R. Corp., 104 Mass. 122; Robinson v.
Transportation Co., 45 Iowa, 470; Harris v. Railroad Co. (R. I.) 16 Atl. 512;
St. John v. Express Co., 1 Woods, 612, Fed. Cas. No. 12,228; Chicago, St.
L. & P. R. Co. v. Wolcott, 141 Ind. 267, 39 N. E. 451; Eckles v. Railway
Co., 72 Mo. App. 296.
i s International & G. N. Ry. Co. v. Tisdale, 74 Tex. 8, 11 S. W. 900.
is Hutch. Carr. (2d Ed.) 152; Ohio & M. R. Co. v. Emrich, 24 111. App.
245; Wabash, St. L. & P. Ry. Co. v. Jaggerman, 115 111. 407, 4 N. E. 641;
Illinois Cent. R. Co. v. Copeland, 24 111. 332; Same v. Johnson, 34 111. 389;
Same v. Frankenberg, 54 111. 88; Central Railroad & Banking Co. v. Georgia
Fruit & Vegetable Exchange, 91 Ga. 389, 17 S. E. 904; Adams Exp. Co.
v. Wilson, 81 111. 339; Weed v. Railroad Co., 19 Wend. (N. Y.) 534; Hansen
v. Railroad Co., 73 Wis. 346, 41 N. W. 529; Angle v. Railroad Co., 9 Iowa,
487; Mulligan v. Railway Co., 36 Iowa, 181; Pereira v. Railroad Co., 66
Cal. 92, 4 Pac. 988; Halliday v. Railway Co., 74 Mo. 159; Atlanta & W. P.
R. Co. v. Texas Grate Co., 81 Ga. 602, 9 S. E. 600; Baltimore & O. R. Co.
v. Campbell, 36 Ohio St. 647; Carter v. Peck, 4 Sneed (Tenn.) 203; Western
& A. R. Co. v. McElwee, 6 Heisk. (Tenn.) 208; East Tennessee & V. R. Co.
v. Rogers, Id. 143; Louisville & N. R. Co. v. Campbell, 7 Heisk. (Tenn.) 253,
294 CARRIERS OF GOODS. (Ch. 6
extended liability by the mere acceptance of goods billed to a point
beyond its own terminals. 17
English Rule.
The English rule, as laid down in Muschamp v. Lancaster & P.
-J. Ry. Co., 18 holds that when the carrier receives goods billed to a
particular place, and fails to limit his responsibility by a positive
agreement, he impliedly undertakes to carry them to the point of
destination, although it may lie beyond the limits within which
17 Elmore v. Railroad Co., 23 Conn. 457; Hood v. Railroad Co., 22 Conn.
502; Naugatuck R. Co. v. Waterbury Button Co., 24 Conn. 468; Converse
v. Transportation Co., 33 Conn. 166; Savannah, F. & W. Ry. Co. v. Harris,
26 Fla. 148, 7 South. 544; Pittsburgh, C. & St L. Ry. Co. v. Morton, 61
Ind. 539; Hill v. Railroad Co., 60 Iowa, 196, 14 N. W. 249; Perkins v.
Railroad Co., 47 Me. 573; Skinner v. Hall, 60 Me. 477; Inhabitants of
Plantation No. 4 v. Hall, 61 Me. 517; Baltimore & O. R. Co. v. Schumacher,
:29 Md. 168, 176; Nutting v. Railroad Co., 1 Gray (Mass.) 502; Darling v.
Railroad Corp., 11 Allen (Mass.) 295; Burroughs v. Railroad Co., 100 Mass.
26; Lowell Wire-Fence Co. v. Sargent, 8 Allen (Mass.) 189; Pendergast
v. Express Co., 101 Mass. 120; Pratt v. Railroad Co., 102 Mass. 557; Craw-
ford v. Railroad Ass'n, 51 Miss. 222; McMillan v. Railroad Co., 16 Mich.
79; Detroit & B. C. R. Co. v. McKenzie, 43 Mich. 609, 5 N. W. 1031; Rick-
erson Roller-Mill Co. v. Grand Rapids & I. R. Co., 67 Mich. 110, 34 N. W.
269; Irish v. Railway Co., 19 Minn. 376 (Gil. 323); Lawrence v. Railroad
Co., 15 Minn. 390 (Gil. 313); Grover & Baker Sewing-Mach. Co. v. Missouri
Pac. Ry. Co., 70 Mo. 672; Van Santvoord v. St. John, 6 Hill (N. Y.) 157;
Lamb v. Transportation Co., 46 N. Y. 271; Condict v. Railway Co., 54 X.
Y. 500; Rawson v. Holland, 59 N. Y. 611; Reed v. Express Co., 48 N. Y.
462; Phillips v. Railroad Co., 78 N. C. 294; Lindley v. Railroad, 88 N. C.
547; Knott v. Railroad Co., 98 N. C. 73, 3 S. E. 735; Carnden & A. R. Co.
v. Forsyth, 61 Pa. St 81; American Exp. Co. v. Second Nat. Bank, 69
Pa. St. 394; Pennsylvania Cent. R. Co. v. Schwarzenberger, 45 Pa. St. 408;
Clyde v. Hubbard, 88 Pa. St. 358; Knight v. Railroad Co., 13 R. I. 572;
Harris v. Railway Co., 15 R. I. 371, 5 Atl. 305; Piedmont Mfg. Co. v.
Columbia & G. R. Co., 19 S. C. 353 (but see Kyle v. Railroad Co., 10 Rich.
Law [S. C.] 382); McConnell v. Railroad Co., 86 Va. 248, 9 S. E. 1006;
Myrick v. Railroad Co., 107 U. S. 102, 1 Sup. Ct. 425; Stewart Y. Railroad
Co., 1 McCrary, 312, 3 Fed. 768; Michigan Cent. R. Co. v. Mineral Springs
Mfg. Co., 16 Wall. 318; Ogdenburg & L. C. R. Co. v. Pratt. 22 Wall. 123;
St. Louis Ins. Co. v. St. Louis, V., T. H. & I. R. Co., 104 U. S. 146; Wichita
Val. Ry. Co. v. Swenson (Tex. Civ. App.) 25 S. W. 47.
i8 Mees. & W. 421.
110) DELIVERY TO CONNECTING CARRIER. 295
he professes to operate. 19 This rule is also followed in some Ameri-
can courts. 20 The English cases go so far as to hold that in these
circumstances the first carrier only can be held liable for a loss
occurring on connecting lines. 21
Authority of Agents to Make Through Contracts.
A general freight agent of a company may bind his principal by
a contract to carry beyond the limits of his own line, 22 but ordi-
narily, and in the absence of previous dealings raising a presump-
tion of authority, a station agent has no such power. 28
Presumption and Burden of Proof .
As the shipper, after the goods have passed from his possession
and control, has no means of proving how the loss occurred, cer-
tain presumptions are raised in his favor. 24 In the first instance,
i Watson v. Railway Co., 3 Eng. Law & Eq. 497; Mytton v. Railway
Co., 28 Law J. Exch. 385; Coxon v. Railway Co., 5 Hurl. & N. 274; Bristol
& E. Ry. Co. v. Collins, Id. 969, 29 Law J. Exch. 41.
20 Mobile & G. R. Co. v. Copeland, 63 Ala. 219; Louisville & N. R. Co.
v. Meyer, 78 Ala. 597; Falvey v. Railroad Co., 76 Ga. 597; Rome R. Co. v.
Sullivan, 25 Ga. 228; Mosher v. Express Co., 38 Ga. 37; Southern Exp.
Co. v. Shea, Id. 519; Cohen v. Express Co., 45 Ga. 148; Illinois Cent. R. Co.
v. Copeland, 24 111. 332; Illinois Cent. R. Co. v. Johnson, 34 111. 389; Illi-
nois Cent. R. Co. v. Frankenberg, 54 111. 88; Chicago & N. W. R. Co. v.
People, 56 111. 365; United States Exp. Co. v. Haines, 67 111. 137; Adams
Exp. Co. v. Wilson, 81 111. 339; Erie Ry. Co. v. Wilcox, 84 111. 239; Angle
v. Railroad Co., 9 Iowa, 487; Mulligan v. Railway Co., 36 Iowa, 181; Cin-
cinnati, H. & D. R. Co. v. Spratt, 2 Duv. (Ky.) 4; Nashua Lock Co. v.
Worcester & N. R. Co., 48 N. H. 339; Western & A. R. Co. v. McEhvee, 6
Heisk. (Tenn.) 208; East Tennessee & V. R. Co. v. Rogers, Id. 143; Louis-
ville & N. R. Co. v. Campbell, 7 Heisk. (Tenn.) 253; Carter v. Peck, 4 Sneed
<Tenn.) 203; East Tennessee & G. R. Co. v. Nelson, 1 Cold. (Tenn.) 272.
21 Collins v. Railway Co., 11 Exch. 790; Barter v. Wheeler, 49 N. H. 9;
Chicago & N. W. Ry. Co. v. Northern Line Packet Co., 70 111. 217; Chesa-
peake & O. R. Co. v. Radbourne, 52 111. App. 203; Southern Exp. Co. v.
Hess, 53 Ala. 19; Coxon v. Railway Co., 5 Hurl. & N. 274; Mytton v. Rail-
way Co., 4 Hurl. & N. 615.
22 Grover & Baker Sewing-Mach. Co. v. Missouri Pac. Ry. Co., 70 Mo.
072; White v. Railway Co., 19 Mo. App. 400.
23 Burroughs v. Railroad Co., 100 Mass. 26; Turner v. Railroad Co., 20
Mo. App. 632; Grover & Baker Sewing-Mach. Co. v. Missouri Pac. Ry. Co.,
70 Mo. 672; White v. Railway Co., 19 Mo. App. 400.
24 Laughlin v. Railway Co., 28 Wis. 204.
296 CARRIERS OF GOODS. (Ch. 6.
it is essential only that the plaintiff show a delivery in good order
to the first carrier, and either nondelivery or delivery in a dam-
aged condition to the consignee. 25 In an action against the first
carrier the latter may show that the goods were delivered to the
next carrier in good order, or in the same condition in which he
received them. 26 A prima facie case is made out against the last
carrier by showing that the goods were delivered to the initial car-
rier in good condition; the presumption being, in the absence of
proof to the contrary, 27 that this condition continued, and that
the injury occurred on the last line. 28
EXCUSES FOR NONDELIVERY.
111. Failure to deliver goods according to the contract of
carriage is excused
(a) When a superior adverse claim to the goods is asserted.
(b) When there is a stoppage in transitu by the consignor.
(c) When the delivery is prevented by an excepted peril.
25 Smith v. Railroad Co., 43 Barb. (N. Y.) 225; Brintnall v. Railroad Co.,
32 Vt. 665; Missouri Pac. Ry. Co. v. Breeding (Tex. App.) 16 S. W. 184;
Goodman v. Navigation Co., 22 Or. 14, 28 Pac. 898.
ze Laughlin v. Railway Co., 28 Wis. 204; Smith v. Railroad Co., 43 Barb.
(N. Y.) 225; Brintnall v. Railroad Co., 32 Vt. 665; Gulf, C. & S. F. Ry. Co.
v. Malone (Tex. Civ. App.) 25 S. W. 1077.
27 Gulf, C. & S. F. R. Co. v. Malone (Tex. Civ. App.) 25 S. W. 1077;
Texas & P. Ry. Co. v. Barnhart, 5 Tex. Civ. App. 601, 23 S. W. 801; Louis-
ville & N. R. Co. v. Jones, 100 Ala. 263, 14 South. 114; Forrester v. Rail-
road Co., 92 Ga. 699, 19 S. E. 811; Georgia Railroad & Banking Co. v.
Forrester, 96 Ga. 428, 23 S. E. 416; Newport News & M. V. R. Co. v. Men-
dell (Ky.) 34 S. W. '1081; Farmington Mercantile Co. v. Chicago, B. & Q.
R. Co., 166 Mass. 154, 44 N. E. 131; Louisville & N. R. Co. v. Tennessee
Brewing Co., 96 Tenn. 677, 36 S. W. 392; Morganton Mfg. Co. v. Ohio R.
& C. Ry. Co., 121 N. C. 514, 28 S. E. 474.
28 Laughlin v. Railway Co., 28 Wis. 204; Mobile & O. R. Co. v. Tupelo
Furniture Mfg. Co., 67 Miss. 35, 7 South. 279; Texas & P. Ry. Co. v. Barn-
hart, 5 Tex. Civ. App. 601, 23 S. W. 801; Texas & P. R. Co. v. Adams, 78-
Tex. 372, 14 S. W. 66G; Lin v. Railroad, 10 Mo. App. 125; Central Railroad
& Banking Co. v. Bayer, 91 Ga. 115, 16 S. E. 953; International & G. N. Ry,
Co. v. Foltz, 3 Tex. Civ. App. 644, 22 S. W. 541; Faison v. Railway Co.,
69 Miss. 569, 13 South. 37. But see International & G. N. Ry. Co. v. Wolf,
3 Tex. Civ. App. 383, 22 S. W. 187; Western Ry. Co. v. Harwell, 97 Ala..
341, 11 South. 781.
113) STOPPAGE IN TRANSITU.
SAME SUPERIOR ADVERSE CLAIM.
112. The carrier acts at his peril in refusing to recognize
a superior adverse claim, by whomsoever made.
Ordinarily, the carrier is bound by the presumption that the
person who delivers the goods for carriage is fully representative
of the owner, and his title is not open to dispute by the consignor.
His directions as to delivery are authoritative, and must be fol-
lowed. 1 But this presumption holds good only as to the voluntary
action of the carrier. If the assertion of an adverse superior title
is made by a third party, it does not apply. 2 If the goods have
been demanded by and delivered to a third party, the carrier may
always defend such delivery by showing the superior title in the
third party. 3 Moreover, the carrier cannot be held liable if he has
delivered the goods according to contract before claim is made by
the real owner. 4
SAME STOPPAGE IN TRANSITU.
113. Nondelivery to the consignee is always excused by a
stoppage in transitu by the consignor. 1
The right of stoppage in transitu exists whenever an unpaid ven-
dor learns of the insolvency of the consignee before the goods
111-112. i Sheridan v. New Quay Co., 4 C. B. (X. S.) 618; Lacloucb
v. Towle, 3 Esp. 115.
2 Wells v. Express Co., 55 Wis. 23, 11 N. W. 537, and 12 N. W. 441; West-
ern Transp. Co. v. Barber, 56 N. Y. 544; Bates v. Stanton, 1 Duer (X. Y.) 79;
Floyd v. Bovard, 6 Watts & S. (Pa.) 75; King v. Richards, 6 Whart. (Pa.)
418; The Idaho, 93 U. S. 575; Rosenfield v. Express Co., 1 Woods, 131, Fed.
Cas. Xo. 12,060; Great Western Ry. Co. v. Crouch, 3 Hurl. & N. 183; Bur-
oughes v. Bayne, 5 Hurl. & X. 296; Taylor v. Plumer, 3 Maule & S. 562.
s Sheridan v. Xew Quay Co., 4 C. B. (N. S.) 618; American Exp. Co. v.
Greenhalgh, 80 111. 68; Young v. Railway Co., SO Ala. 100; Wolfe v. Rail-
way Co., 97 Mo. 473, 11 S. W. 49; Hardinan v. Willcock, 9 Bing. 382; Biddle
v. Bond, 6 Best & S. 225; Cheesman v. Exall, 6 Exch. 341; Dixon v. Yates,
5 Barn. & Adol. 340.
4 Sheridan v. Xew Quay Co., 4 C. B. (X. S.) 618.
113. i Hutch. Carr. (2d Ed.) 409; McFetridge v. Piper, 40 Iowa, 627;
Reynolds v. Railroad Co., 43 X. H. 5SO; Newliall v. Vargas, 13 Me. 93.
^298 CARRIERS OB' GOODS. (Ch. 6
have been delivered, 2 but the carrier is not bound to inform him-
self as to such insolvency before delivering the goods to the con-
signor, on his demand. 3 To excuse the carrier for nondelivery to the
consignee, the notice of stoppage in transit must be made while
the goods are actually in transit. 4 Transit, within this rule, is
deemed to continue until the buyer, or his agent in that behalf,
takes delivery of the goods from the carrier either before or after
their arrival at the appointed destination, or after the arrival of
the goods at their appointed destination the carrier attorns to
Ihe buyer, and continues in possession as bailee for the buyer, 6 or
the carrier wrongfully refuses to deliver the goods to the buyer or
his agent in that behalf. 7
2 Rowley v. Bigelow, 12 Pick. (Mass.) 307, 313; Durgy Cement & Umber
Co. v. O'Brien, 123 Mass. 12; Seymour v. Newton, 105 Mass. 272; Muller
v. Pondir, 55 N. Y. 325; Gossler v. Scliepeler, 5 Daly (N. Y.) 476; Gwyn v.
Railroad Co., 85 N. C. 429; Benedict v. Schaettle, 12 Ohio St. 515; Reynolds
v. Railroad Co., 43 N. H. 580; Loeb v. Peters, 63 Ala. 243; Secomb v. Nutt,
14 B. Mon. (Ky.) 324; Millard v. Webster, 54 Conn. 415, 8 Atl. 470. Where
the right does not exist, see Lester v. Railroad Co., 73 Hun, 398, 26 N. Y.
Supp. 206.
3 Hale, Bailm. & Carr. p. 480; The Vidette, 34 Fed. 396; The E. H. Pray,
27 Fed. 474; Allen v. Railroad Co., 79 Me. 327, 9 Atl. 895; Bloomingdale
v. Railroad Co., 6 Lea (Tenn.) 616; The Tigress, Brown & L. 45.
* Schotsmans v. Railroad Co., 2 Ch. App. 332; Rowley v. Bigelow, 12
Pick. (Mass.) 307.
6 Seymour v. Newton, 105 Mass. 272; Kingman v. Denison, 84 Mich. 608,
48 N. W. 26; White v. Mitchell, 38 Mich. 390; Jenks v. Fulmer, 160 Pa.
St. 527, 28 Atl. 841; Grive v. Dunham, 60 Iowa, 108, 14 N. W. 130; Symns
v. Schotten, 35 Kan. 310, 10 Pac. 828; Wheeling & L. E. Ry. Co. v. Koontz,
15 Ohio Cir. Ct. R. 288; Whitehead v. Anderson, 9 Mees. & W. 518; Craw-
.shay v. Eades, 1 Barn. & C. 182; Bolton v. Railway Co., L. R. 1 C. P. 431;
James v. Griffin, 2 Mees. & W. 623.
e McFetridge v. Piper, 40 Iowa, 627; Langstaff v. Stix, 64 Miss. 171, 1
South. 97; Williams v. Hodges, 113 N. C. 36, 18 S. E. 83; James v. Griffin.
2 Mees. & W. 623; Ex parte Cooper, 11 Ch. Div. 68.
T Bird v. Brown, 4 Exch. 786.
114) EXCEPTED PERILS. 299
SAME EXCEPTED PERILS.
114. The carrier is not responsible for nondelivery of goods
occasioned by perils excepted by the common law.
The perils which exempt a common carrier from liability for
loss of goods intrusted to him have already been discussed. 1 If
goods are lost by reason of circumstances which relieve the car-
rier of liability therefor, it follows that there can be no liability
for nondelivery.
114. i See ante, pp. 225-232.
300 OCCUPATION AND USE OF LAND AND WATER. (Ch. 7
CHAPTER VH.
OCCUPATION AND USE OF LAND AND WATER.
115. Duties General Rule.
116. Lateral Support.
117. Dangerous Premises.
118. Visitors, Licensees, and Trespassers.
119. Hidden Dangers, Excavations, Etc.
120. Private Grounds.
121. Landlord and Tenant.
122. Contract to Repair.
123. Premises Defective at Time of Renting.
124. Liability to Tenant.
125. Safe Access to Rented Property.
126. Water Courses.
127. Construction and Maintenance of Dains.
128. Rule in United States.
129. Obstruction of Navigable Streams.
DUTIES GENERAL RULE.
115. The breach of duties attached to the ownership or
occupation of land does not involve principles dif-
ferent from the ordinary rules of negligence as ap-
plied to the use of chattels.
If A. agree to convey land to B., the latter undertaking to erect
a house thereon, and the workmen of B., in preparing the foundation,
undermine and injure C.'s adjoining house, the negligence, if any,
is that of B., who is alone responsible, although the title to the
land still remains in A. 1 In general, one may rightfully occupy
his real estate, and enjoy and use it in any way that suits his
pleasure or whim, provided he does not transgress the rule, "Sic
utere tuo ut alienum non laedas." And even regarding this rule it
is to be observed that he is not to be literally restricted thereby,
for there are many acts which he may rightfully perform on his
115. i Earle v. Hall, 2 Mete. (Mass.) 353. See, also, Painter v. Mayor,
etc., 46 Pa. St. 213; Hilliard v. Richardson, 3 Gray (Mass.) 349; Prairie State
Loan & Trust Co. v. Doig, 70 111. 52.
116) LATICRAL SUPPORT. 30 1
own land, although they will certainly result in injury to his neigh-
bor. 2 All that the law requires of the landholder is that he exer-
cise ordinary prudence and skill, to the end that he may not do
unnecessary harm to his neighbor, as in putting down the founda-
tions of his house. 3
LATERAL SUPPORT.
116. A person may lawfully sink the foundation of his
house on his own land, and adjacent to that of anoth-
er, below the foundation of his neighbor's, and is
not liable for any damage resulting to his neigh-
bor's house, provided he has used due care and dili-
gence to prevent injury thereto.
In the absence of negligence and unskillfuness, a person is not
answerable in damage for the exercise of a right. 1 Following this
principle, the New York courts hold that one may rightfully exca-
vate upon his own land to any depth, provided he uses due care
and diligence not to do unnecessary harm to his neighbor's prop-
erty. 2 The Massachusetts courts, on the contrary, hold that a per-
son has the right to have his soil, independent of any artificial im-
provements, remain in its natural condition, and that any one who
interferes with that right is a wrongdoer, independently of any
question of negligence. In the case of Gilmore v. Driscoll, 3 Gray,
C. J., says: "The right of an owner of land to the support of the
land adjoining is jure naturae, like the right in a flowing stream.
Every owner of land is entitled, as against his neighbor, to have
the earth stand and the water flow in its natural condition. * * *
But in the case of land w r hich is fixed in its place, each owner has
the absolute right to have land remain in its natural condition,
2 See post. pp. 310. 311.
3 Paiiton v. Holland, 17 Johns. (N. Y.) 92. See, also, Radcliff's Ex'rs v.
Brooklyn, 4 N. Y. 195; Phelps v. Nowlen, 72 N. Y. 39.
11G. i Pantoii v. Holland, 17 Johns. (N. Y.) 92; Hemsworth v. Gushing,
115 Mich. 92, 72 N. W. 1108; Spohn v. Dives, 174 Pa. St 474, 34 Atl. 192.
2 Panton v. Holland, 17 Johns. (X. Y.) 92; Bailey v. Gray, 53 S. C. 503,
31 S. E. 354; Krish v. Ford (Ky.) 43 S..W. 237; Lapp v. Guttenkunst (Ky.)
44 S. W. 964; Obert v. Dunn, 140 Mo. 476, 41 S. W. 901.
3 122 Mass. 199.
302 OCCUPATION AND USE OF LAND AND WATER. (Ch. 7
unaffected by any act of his neighbor; and, if the neighbor digs
upon or improves his own land so as to injure this right, may main-
tain an action against him, without proof of negligence. But this
right of property is only in the land in its natural condition, and
the damages in such an action are limited to the injury of the land
itself, and do not include any injury to buildings or improvements
thereon. While each owner may build upon and improve his own
estate, at his pleasure, provided he does not infringe upon the
natural right of his neighbor, no one can, by his own act, enlarge
the liability of his neighbor for an interference with this natural
right. If a man is not content to enjoy his land in its natural
condition, but wishes to build upon or improve it, he must either
make an agreement with his neighbor, or dig his foundations so
deep, or take such other precautions, as to insure the stability of
his buildings or improvements, whatever excavations the neighbor
may afterwards make upon his own land in the exercise of his right."
DANGEROUS PREMISES.
117. It is the general duty of the owner or occupant of
lands to so occupy and use them that they shall
not become a source of danger to those who are
rightfully upon or about the premises.
To this end it is the duty of the owner to use reasonable care
that structures placed upon the land are properly constructed, and
so maintained that they shall not endanger passers-by upon the
street, or others rightfully about the premises. Thus, if the owner
of a building which has been partially destroyed by fire permits the
walls to remain standing, without taking proper precautions to pre-
vent their falling into the adjacent street, he will be liable for in-
jury to a passer-by caused by such neglect. 1 And the fact that the
117. i Church of the Ascension v. Buckhart, 3 Hill (N. Y.) 193. See,
also, Seabrook v. Hecker, 2 Rob. (N. Y.) 291; Schell v. Bank, 14 Minn. 43
(Gil. 34); Glover v. Mersman, 4 Mo. App. 90; Schwartz v. Gilmore, 45 111.
455. The owner of a building veneered with brick, the brick portion of the
wall of which fell through the failure of the builder to anchor the same to
the sheathing of the wall, as was proper and customary, was not liable for
injuries occasioned by the fall, in the absence of evidence that, by his exer-
117) DANGEROUS PREMISES. 303-
walls were, at the time of the accident, in the charge of a con-
tractor, would not relieve the owner of liability. 2 But, to charge
the owner or occupant with negligence, the defect or danger must
be actually known, or discoverable in the exercise of ordinary dili-
gence. 3
Furthermore, it is the duty of the owner to construct his build-
ings so that natural accumulations of ice and snow upon the roof
will not be discharged iji a manner likely to harm travelers in the
street. 4 So, also, if a spout for conveying water from the roof is
so placed as to discharge upon a neighbor's land, to his injury; 5 or
if the water is discharged upon the sidewalk, forming ice, by reason
of which a traveler is injured. 6 If the owner of a building per-
mits to be hung over the sidewalk lamps, signs, or other heavy
articles likely to produce injury by falling, it is his duty to use at
least ordinary care to see that they are securely fastened and main-
tained. 7
cising ordinary care before the wall fell, he might have discovered the de-
fect therein. Ryder v. Kinsey, 62 Minn. 85, 64 N. W. 94. But see Cork
v. Blossom, 162 Mass. 330, 38 N. E. 495, where it was held that one who
erects a chimney on his land is liable to an adjoining owner for injuries
caused by its fall, when it is not the result of inevitable accident, or wrongful
acts of third parties.
2 Sessengut v. Posey, 67 Ind. 408; Knoop v. Alter, 47 La. Ann. 570, 17 South,
139.
s Metzger v. Schultz, 16 Ind. App. 454, 43 N. E. 886; Ryder v. Kinsey,
62 Minn. 85, 64 N. W. 94. But cf. Cork v. Blossom, 162 Mass. 330, 38 N. E.
495; Glase v. City of Philadelphia, 169 Pa. St. 488, 32 Atl. 600.
4 Garland v. Towne, 55 N. H. 55; Wash v. Mead, 8 Hun (N. Y.) 387; Ship-
ley v. Fifty Associates, 101 Mass. 251.
e Reynolds v. Clarke, 2 Ld. Rayni. 1399; Bellows v. Sackett, 15 Barb. (N,
Y.) 96.
e Kirby v. Association, 14 Gray (Mass.) 249; Lumley v. Manufacturing Co. r
20 C. C. A. 1, 73 Fed. 767; Thuringer v. Railroad Co., 82 Hun, 33, 31 N. Y.
Supp. 419; Citron v. Bayley, 36 App. Div. 130, 55 N. Y. Supp. 382.
T Tarry v. Ashton, 1 Q. B. Div. 314; Salisbury v. Herchenroder, 106 Mass.
458; Detzur v. Brewing Co. (Mich.) 77 N. W. 948.
304 OCCUPATION AND USE OF LAND AND WATER. (Ch. 7
SAME VISITORS, LICENSEES, AND TRESPASSERS.
118. In a general way, the duty incumbent upon the occu-
pant of premises towards those coming thereon is
proportioned to the rightfulness of their presence-
Those entering by invitation are entitled to a higher
degree of care than those who are present by mere
sufferance.
Visitors and Licensees.
In considering the degree of care which it is the duty of the owner
to extend to those coming upon his land or premises, regard must
be had to the character of the party, and his reasons for being there.
One who comes into the store of a merchant by invitation, either
express or implied, is entitled to greater consideration and care than
one who enters by mere sufferance or is committing a trespass.
It is the duty of the occupant of premises to use ordinary care
to maintain them in a reasonably safe condition for the accommo-
dation of those who are invited there for the purposes of business. 1
The rule is equally applicable in all cases where the visitor is in-
duced to come upon the premises for purposes beneficial to the owner
or occupant. 2 The person thus induced to come upon the premises
118. i Coughtry v. Woolen Co., .56 N. Y. 124; Bennett v. Railroad Co.,
102 U. S. 577; Weston v. Railroad Co., 73 N. Y. 595; Carleton v. Steel Co., 99
Mass. 216; Homer v. Everett, 47 N. Y. Super. Ct. 298; Nave v. Flack, 90
Ind. 205; Pastene v. Adams, 49 Cal. 87; Parker v. Barnard, 135 Mass. 116;
Learoyd v. Godfrey, 138 Mass. 315; Chapman v. Roth well, EL, Bl. & El. 168.
Guest of a tenant, Defiance Water Co. v. Olinger, 54 Ohio St. 532, 44 N. E.
238; Metzger v. Schultz, 16 Ind. App. 454, 43 N. E. 886; Glase v. City of Phila-
delphia, 169 Pa. St. 488, 32 Atl. 600; Barman v. Spencer (Ind. Sup.) 49 X. E.
9; Anderson & Nelson Distilling Co. v. Hair (Ky.) 44 S. W. 658; Doherty v.
McLean, 171 Mass. 399, 50 N. E. 938; Wilson v. Olano, 28 App. Div. 44S, 51
N. Y. Supp. 109; Texas Loan Agency v. Fleming (Tex. Civ. App.) 46 S. W. 63.
That the immediate cause was the act of a trespasser does not excuse negli-
gence of defendant, Colorado Mortg. & Inv. Co. v. Rees, 21 Colo. Sup. 435,
42 Par. 42.
2 Currier v. Association, 135 Mass. 414; Brown v. Society, 47 Me. 275;
Camp v. Wood, 76 N. Y. 92; Baker v. Tibbetts, 162 Mass. 468, 39 N. E. 350;
Lepnick v. Gaddis, 72 Miss. 200, 16 South. 213.
118) VISITORS, LICENSEES, AND TRESPASSERS. 305
may rightfully assume them to be reasonably safe, 8 but he is not
excused from the exercise of ordinary care on his part; as if he
should proceed along a dark passageway, and fall down an ordinary
staircase, when common prudence would have dictated that he
should take -a light. 4
Although it seems to be generally conceded that the landowner
does not owe to the invited guest upon his premises the same degree
of care that is due to one who comes there for purposes of business,
it is not clear on what ground the distinction rests, or just how far
it may be carried. Shearman and Redfield say: "In our judgment,
the same rule should be applied in such a case that would be ap-
plied if the property were personal instead of real. The host should
always be held responsible to the guest for gross negligence; 5 that
is, for such want of care as would justify a suspicion that he was
indifferent to the safety of his guest." 8 A bare licensee entering
upon the premises of another must take them as he finds them,
and cannot complain if he is injured by reason of their unfit or un-
safe condition. 7 Under these circumstances the owner would be
liable only for injuries resulting from negligence of such a char-
acter as to justify the conclusion that it was intentional or wan-
ton. Thus, where workmen had been excavating sand on defend-
ant's land, and had left an overhanging bank, in a vacant lot, where
children sometimes played, and the bank fell, and killed an infant,
who was then in charge of a sister, it was held that no recovery
s Francis v. Cockrell, L. R. 5 Q. B. 184. Application of rule to wife of
prospective purchaser. Davis v. Ferris, 29 App. Div. 623, 53 N. Y. Supp. 571.
But he cannot assume premises to be safe for an unreasonable or unintended
use. Edwards v. Railroad Co., 98 N. Y. 245. Barbed wire stretched across
a way not public, but customarily traveled. Morrow v. Sweeney, 10 Ind. App.
626, 38 N. E. 187.
t Wilkinson v. Fairrie, 1 Hurl. & C. 633; Zoebisch v. Tarbell, 10 Allen
(Mass.) 385; otherwise, if there be special inducement, Sweeny v. Railroad
Co., 10 Allen (Mass.) 368.
s As in case of gratuitous passengers on railroads. Philadelphia & R. R.
Co. v. Derby, 14 How. 468.
e Shear. & R. Neg. (4th Ed.) 706.
7 Sweeny v. Railroad Co., 10 Allen (Mass.) 368; Zoebisch v. Tarbell, Id.
385; Gillis v. Railroad Co., 59 Pa. St. 129; Frost v. Railroad Co., 10 Allen
(Mass.) 387; Pierce v. Whitcomb, 48 Vt. 127; Lake Erie & W. R. Co. v.
BAR.XEG 20
306 OCCUPATION AND USE OF LAND AND WATER. (Ch. V
could be had, as defendant was not bound to keep the premises in
safe condition for licensees or trespassers. 8 If it were known to the
owner that children were accustomed to play upon the land, it
would be his duty to use ordinary care to see that it was reason-
ably safe, or, at least, that it contained no dangers which a child
would not appreciate, as lumber so carelessly piled that it was liable
to fall. 9 This seeming exception, in the case of children, to the
rule that the landowner owes no duty to the bare licensee or tres-
passer on his premises, has this apparent limitation: The liability
of the landowner extends only to those cases where dangerous ma-
chinery, structures, and contrivances of a nature calculated to at-
tract and entertain young children have been left unguarded, and
caused injury to infants so young as to be non sui juris? An illus-
tration of this is found in the so-called "Turntable Cases." 10 But,
Maus (Ind. App.) 51 N. E. 735; Flanagan v. Asphalt Co., 37 App. Div. 476.
56 N. Y. Supp. 18; Brehmer v. Lynian (Vt.) 42 Atl. 613; Smith v. Day, 86
Fed. 62; Blackstone v. Foundry Co., 170 Mass. 321, 49 N. E. 635; Fitzpatrick
v. Manufacturing Co. (N. J. Sup.) 39 Atl. 675; Kinney v. Onsted, 113 Mich.
96, 71 N. W. 482. And where, under these circumstances, the injury is caused
by the direct act of a stranger, a fortiori there is no liability. Mahoney v.
Libbey, 123 Mass. 20. But see Clarkin v. Biwabik-Bessemer Co., 65 Minn.
483, 67 N. W. 1020, where defendant was held liable to the licensee, injured
by an explosion of dynamite.
s Ratte v. Dawson, 50 Minn. 450, 52 N. W. 965; Grindley v. McKechnie,
163 Mass. 494, 40 N. E. 764; Richards v. Connell, 45 Neb. 517, G3 N. W.
915. See, also, Knight v. Abert, 6 Pa. St. 472; Galligan v. Manufacturing
Co., 143 Mass. 527, 10 N. E. 171; Hargreaves v. Deacon, 25 Mich. 1; In re
Demarest, 86 Fed. 803; Kayser v. Lindell (Minn.) 75 N. W. 1038.
a Bransom's Adm'r v. Labrot, 81 Ky. 638. See, also, Beehler v. Daniels,
19 R. I. 49, 31 Atl. 582. And generally, as to injuries to trespassers, see
Pelton v. Schmidt, 104 Mich. 345, 62 N. W. 552; Gulf, C. & S. F. Ry. Co.
v. Cunningham (Tex. Civ. App.) 30 S. W. 367; Walsh v. Railroad Co., 145
N. Y. 301, 39 N. E. 1068; Elliott v. Carlson, 54 111. App. 470; Biggs v. Barb-
Wire Co. (Kan. Sup.) 56 Pac. 4; Ritz v. City of Wheeling (W. Va.) 31 S.
E. 993, 43 Lawy. Rep. Ann. 148.
10 Keffe v. Railway Co., 21 Minn. 207, approved in Union Pac. Ry. Co.
v. McDonald, 152 U. S. 262, 14 Sup. Ct 619; Kolsti v. Railway Co., 32 Minn.
133, 19 N. W. 655; Doyle v. Railway Co., 42 Minn. 79, 43 N. W. 787; O'Mal-
ley v. Railway Co., 43 Minn. 294, 45 N. W. 440; City of Pekin v. McMahon,
154 111. 141, 39 N. E. 484; Siddall v. Jansen, 168 111. 43, 48 X. E. 191, 39
Lawy. Rep. Ann. 112; Price v. Water Co., 58 Kan. 551, 50 Pac. 450. But
118) VISITORS, LICENSEES, AND TRESPASSERS. 307
even as to children non sui juris, not more than ordinary or rea-
sonable care is required, 11 and the question of adequate care in the
particular case must be for the jury. 1 *
Trespassers.
If the occupant of premises owes no duty to the licensee, still
less can a trespasser be heard to complain of the negligence of
the landowner upon whose premises he has unlawfully entered. And
so, where a statute required railroads to block ah" frogs upon their
tracks, and plaintiff, a trespasser in the yards of defendant com-
pany, was injured by reason of the failure to comply with such stat-
ute, he was not allowed to recover; the court saying that the stat-
ute was passed for the protection of those rightfully upon the prem-
ises in the discharge of their duty, and not for the protection of
trespassers. 18
a very strong line of decisions take the opposite view in this class of cases.
Walsh v. Railroad Co., 145 N. Y. 301, 39 N. E. 1068; Frost v. Railroad Co.,
64 N. H. 220, 9 Atl. 790; Daniels v. Railroad Co., 154 Mass. 349, 28 N. E.
283; Stendal v. Boyd (Minn.) 75 N. W. 735; Delaware, L. & W. R. Co. v.
Reich (N. J. Err. & App.) 40 Atl. 682; Peters v. Bowman, 115 Cal. 345, 47
Pac. 113, 598; Dobbins v. Railway Co. (Tex. Sup.) 41 S. W. 62.
11 Kolsti v. Railway Co., 32 Minn. 133, 19 N. W. 655; Keffe v. Railroad
Co., 21 Minn. 207; O'Malley v. Railway Co., 43 Minn. 294, 45 N. W. 440;
City of Pekin v. McMahon, 154 111. 141, 39 N. E. 484; Moran v. Car Co., 134
Mo. 641, 36 S. W. 659. Ties insecurely piled. Missouri, K. & T. Ry. Co.
of Texas v. Edwards, 90 Tex. 65, 36 S. W. 430.
12 Doyle v. Railway Co., 42 Minn. 79, 43 N. W. 787. So held where plain-
tiffs, as bare licensees, remained in an abandoned camp where dynamite
was stored by defendants, and which was exploded by heat, and injured
plaintiffs. It was for the jury to determine whether plaintiffs had been
afforded a reasonable time to vacate after they knew of the storage of
the dynamite. Clarkin v. Biwabik-Bessemer Co., 65 Minn. 483, 67 N. W. 1020.
is Akers v. Railway Co., 58 Minn. 540, 60 N. W. 669. See, also, Beehler
v. Daniels, 19 R. I. 49, 31 Atl. 582. And generally, as to injuries to tres-
passers, see Pelton v. Schmidt, 104 Mich. 345, 62 N. W. 552; Gulf, C. & S.
F. Ry. Co. v. Cunningham (Tex. Civ. App.) 30 S. W. 367; Walsh v. Rail-
road Co., 145 N. Y. 301, 39 N. E. 1068; Elliott v. Carlson, 54 I1L App. 470;
Berlin Mills Co. v. Croteau, 32 C. C. A. 126, 88 Fed. 860; Reeves v. French
<Ky.) 45 S. W. 771; Anderson v. Railway Co., 19 Wash. 340, 53 Pac. 345.
308 OCCUPATION AND USE OF LAND AND WATER. (Cll. 7
SAME HIDDEN DANGERS, EXCAVATIONS, ETC.
119. The occupant of premises is liable for injuries inflicted
by reason of maintaining contrivances or conditions
involving hidden dangers, and likely to do harm,
although the person injured is unlawfully or -wrong-
fully on the premises.
From a very early date in this country, the landholder has been
liable for injuries caused by traps or other harmful devices, placed
out of doors for the purpose of doing harm to the person or prop-
erty of those who came unbidden upon the premises. 1 In England,
however, until the early part of the present century, the courts up-
held the placing of spring guns and other mankilling devices in cer-
tain circumstances, 2 even where the land was not inclosed. 3 Al-
though certain early decisions in this country apparently sustained
the right of the householder to set spring guns inside his buildings
for the purpose of injuring burglars, 4 the courts have not com-
mitted themselves unreservedly to the doctrine, and there can be
no question that an innocent person, although a technical trespasser,
if injured by such devices, could recover. 6
Although spring guns, traps, and other similar barbaric devices
now exist only in history, the courts still find analogous conditions
in concealed dangers to which the simile of "trap" is applied, and
it is now almost universally held that a person is liable for injuries
inflicted by reason of maintaining a contrivance or condition in-
volving a hidden danger, likely to do harm, even though the person
injured is wrongfully or unlawfully upon the premises. And al-
though a person may make such excavations as he sees fit upon his
own land, and is, in general, not bound to place guards about them, 6
119. i Johnson v. Patterson, 14 Conn. 1; State v. Moore, 31 Conn. 479.
2 Ilott v. Wilkes, 3 Barn. & Aid. 304. But it would seein that the owner
was obliged to give proper notice that the premises were thus protected.
Bird v. Holbrook, 4 Bing. 628. But see Jordin v. Crump, 8 Mees. & W. 782.
s Jordin v. Crump, 8 Mees. & W. 782. The practice was forbidden by
Act May 28, 1827 (St. 7 & 8 Geo. IV. c. 18).
* Gray v. Combs, 7 J. J. Marsh. (Ky.) 478.
6 State v. Moore, 31 Conn. 479.
e Kohn v. Lovett, 44 Ga. 251.
119) HIDDEN DANGERS, EXCAVATIONS, ETC. . 309
yet in this respect he must be governed entirely by the circum-
stances of the case. If the point of excavation is remote from the
highway or any public or customary path, he owes no duty to
strangers to fence or otherwise protect the hole. 7 But if the hole
is so located that, in the ordinary course of events, there is a likeli-
hood that a passer-by may fall into it, he leaves it unguarded at
his peril, 8 and the fact that the injured person digressed slightly
from the highway or path, and became even a technical trespasser,
will not necessarily excuse the landowner. 9 It is evident that no
specific . rule can be laid down for determining the exact distance
from a highway or traveled path at which the landowner may, with
impunity, dig, and leave unguarded, a hole. The distance must
necessarily vary with the circumstances of each case. 10 Each case
must be determined by its peculiar incidents, having due regard for
the general rule that, in taking care to use his property so as not
to injure his neighbor, one is not bound to look beyond the natural
and probable consequences of the act he is about to perform. 11
Substantially the same rules have always been applicable in cases
of injury to domestic animals by reason of the negligence or wan-
ton carelessness of landowners, it being the common-law duty of
the owner to fence them in, and not that of the landowner to fence
them out. 12 And so it was held in a very early case, where de-
T Knight v. Abert, 6 Pa. St. 472; Kelley v. City of Columbus, 41 Ohio
St. 263 (30 feet from sidewalk); Hardcastle v. Railroad Co., 4 Hurl. & X.
67 (20 feet from highway); Gillespie v. McGowan, 100 Pa. St. 144 (well,
80 feet from highway); Turner v. Thomas, 71 Mo. 596.
s Barnes' Adnrr v. Ward, 9 C. B. 392; Haughey v. Hart, 62 Iowa, 9G, 17
X. W. 189; Graves v. Thomas, 95 Ind. 361; Yale v. Bliss, 50 Barb. (X. Y.)
358; Houston v. Traphagen, 47 X. J. Law, 23; Hutson v. King, 95 Ga. 271,
22 S. E. 615; Binny v. Carney (Sup.) 46 X. Y. Supp. 307; Hadley v. Taylor,
L. R. 1 C. P. 53.
9 Yale v. Bliss. 50 Barb. (X. Y.) 318; Hector Min. Co. v. Robertson, 22
Colo. 491, 45 Pac. 406; Lowe v. Salt Lake City, 13 Utah, 91, 44 Pac. 1050;
Butz v. Cavanaugh, 137 Mo. 503, 38 S. W. 1104.
101 Thomp. Xeg. (1st Ed.) p. 299; Young v. Harvey, 16 Ind. 314. Cf.
Durham v. Musselnian, 2 Blackf. (Ind.) 96. And see post, p. 310.
11 Yale v. Bliss, 50 Barb. (X. Y.) 358; Kinchlow v. Elevator Co., 57 Kan.
374, 46 Pac. 703; Drennan v. Grady. 167 Mass. 415, 45 X. E. 741; Rosen-
baum v. Shoffner, 98 Tenn. 624, 40 S. W. 1086.
12 Mason v. Keeling, 12 Mod.. 332, 1 Ld. Rayrn. 606; Bush v. Brainard,
1 Cow. (X. Y.) 78.
310 OCCUPATION AND USE OF LAND AND WATER. (Ch. 7
fendant had dug a pit in a common, into which the plaintiff's mare
fell and was killed, that the plaintiff could not recover. 13 So, also,
where plaintiff's cow strayed into defendant's wood, and drank
maple sap which had been left exposed, and died, 14 and where de-
fendant kept pickling brine exposed near the highway, and plain-
tiff's oxen were killed by reason of drinking it, 15 the defendants
were not held liable. But where defendant placed traps, baited with
meat, near the highway, without notice, but on his own premises,
for the purpose of catching his neighbors' dogs, and plaintiff's dog,
attracted by the meat, was killed, defendant was held liable. 18
SAME PRIVATE GROUNDS.
120. Where one's grounds are private, secluded, and in no
way open to the public, the owner is under no ob-
ligation to maintain them with a view to the safety
of those who come upon them without invitation,
either express or implied. 1
In Hargreaves v. Deacon, 2 referring to the duty of the landowner
under the above circumstances, Graves, J., says: "On private prop-
erty it applies less generally, and only to those who have a legal
right to be there, and to claim the care of the occupant for their
security, while on the premises, against negligence, or to those
who are directly injured by some positive act involving more than
passive negligence. Cases are quite numerous in which the same
questions have arisen which arise in this case, and we have found
none which hold that an accident from negligence, on private prem-
ises, can be made the ground of damages, unless the party injured
is Blyth v. Topham, Cro. Jac. 158, 1 Rolle, Abr. 88.
14 Bush v. Brainard, 1 Cow. (X. Y.) 78.
IB Hess v. Lupton, 7 Ohio, 216; Aurora Branch R. Co. v. Grimes, 13 I1L
585.
18 Townsend v. Wathen, 9 East, 277. Cf. Crowhurst v. Board, 4 Exch.
Div. 5 (see 18 Alb. Law J. 514); Firth v. Iron Co., 3 C. P. Div. 254.
120. i Gautret v. Egerton, L. R. 2 C. P. 371; Stone v. Jackson, 16 O.
B. 199; Roulston v. Clark, 3 E. D. Smith (N. Y.) 366; Zoebisch v. Tarbell,
10 Allen (Mass.) 385; Frost v. Railway Co., Id. 387; Kohn v. Lovett, 44
Ga. 251.
2 25 Mich. L
121) LANDLORD AND TENANT. 311
has been induced to come by personal invitation, or by employment
which brings him there, or by resorting there as to a place of busi-
ness or of general resort, held out as open to customers or others
whose lawful occasions may lead them to visit there. We have
found no support for any rule which would protect those who go
where they are not invited, but merely with express or tacit permis-
sion, from curiosity, or motives of private convenience, in no way
connected with business or other relations with the occupant."
LANDLOKD AND TENANT.
121. Primarily, the occupant, and not the owner, of leased
premises is liable to third persons for injuries caused
by the failure to keep the premises in repair. 1 The
liability may, however, be extended to the landlord
(a) When the latter has made a contract to repair, or
(b) Where the premises were defective at the inception
of the lease.
From a very early date it has been established by the common
law that he who occupies, and not the landlord, is bound to pro-
tect the public against danger or injury arising from any defect
in the condition of the premises. 2 Thus, in the early case of Cheet-
ham v. Hampson 3 it was held that an action on the case for not
repairing fences, to the injury of plaintiff, could be maintained
121. i Payne v. Rogers. 2 H. Bl. 350; O'Brien v. Cap well, 59 Barb.
(N. Y.) 497; Shindelbeck v. Moon (Ohio Sup.) 17 Am. Law Reg. 450; Kastor
v. Newhouse, 4 E. D. Smith (X. Y.) 20; Gridley v. City of Bloomington,
68 111. 47; Blunt v. Aikin, 15 Wend. (N. Y.) 522; Szathmary v. Adams, 166
Mass. 145, 44 N. E. 124; Simon-Reigel Cigar Co. v. Gordon-Burnham Bat-
tery Co., 20 Misc. Rep. 598, 46 N. Y. Supp. 416; Gleason v. Boehm, 58 N. J.
Law, 475, 34 Atl. 886; Reg. v. Watts, 1 Salk. 357; Cheetham v. Hampson,
4 Term R. 318; Russell v. Shenton, 3 Q. B. 449; Reg. v. Bucknall, 2 Ld.
Raym. 804; Brent v. Haddon, 3 Cro. Jac. 555; Coupland v. Hardingham,
3 Camp. 398; Tarry v. Ashton, 1 Q. B. Div. 314. But see Trustees of Vil-
lage of Canandaigua v. Foster, 156 N. Y. 354, 50 N. E. 971; Fox v. Buffalo
Park, 21 App. Div. 321, 47 N. Y. Supp. 78S.
2 See ante, note 1.
s 4 Term R. 318.
312 OCCUPATION AND USE OF LAND AND WATER. (Ch. 7
against the occupant only, and not against the owner of the fee, not
in possession. 4
SAME CONTRACT TO REPAIR.
122. The landlord also may become liable to the public for
injuries received through failure to repair, if he has
violated his express contract -with his tenant in
that regard.
When the landlord has entered into an express agreement with
the tenant to keep the premises in repair, he will be liable to the
public for injuries caused by his failure to do so. 1 And this even
if the tenant is to pay for the omitted repairs. 2 And so, when
workmen repairing a hall under such an agreement, negligently left
the cellar entrance open during the night, and plaintiff fell into it,
and was injured, the landlord was liable. 3 But, if the landlord un-
dertakes to transmit power to adjacent buildings, he is liable for
an injury to an employe* of the tenant by neglecting to keep the
pulleys and shafting in safe condition, although the lease required
the tenant to keep the shaft in repair. 4 As a general proposition,
* See Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193; Sterger v. Van Sicklen,
132 N. Y. 499, 30 N. E. 987. Lessor of railroad is not liable for torts of
lessee. Miller v. Railroad Co., 125 N. Y. 118, 26 N. E. 35. Landlord is not
liable for damage caused by want of repair of ordinary nature to privy
vaults. Pope v. Boyle, 98 Mo. 527, 11 S. W. 1010. And generally, see City
of Chicago v. O'Brennan, 65 111. 160; Gridley v. City of Bloomington, 68 111.
47; City of Lowell v. Spaulding, 4 Gush. (Mass.) 277; Brunswick-Balke-
Collender Co. v. Rees, 69 Wis. 442, 34 N. W. 732; Texas Loan Agency v.
Fleming (Tex. Sup.) 49 S. W. 1039; Metropolitan Sav. Bank v. Manion, 87
Md. 68, 39 Atl. 90.
122. i Benson v. Suarez, 43 Barb. (N. Y.) 408; Payne v. Rogers, 2 H.
Bl. 350; Black v. Maitland, 11 App. Div. 188, 42 N. Y. Supp. 653.
2 Leslie v. Pounds, 4 Taunt. 649; Nelson v. Brewery Co., 2 C. P. Div. 311.
But reservation of right to enter premises to repair the same does not at-
tach liability to landlord. Clifford v. Cotton Mills, 146 Mass. 47, 15 N. E. 84.
Landlord is under no implied obligation to make ordinary repairs. Medary
v. Gathers, 161 Pa. St. 87, 28 Atl. 1012.
.3 Leslie v. Pounds, 4 Taunt. 649.
* Poor v. Sears, 154 Mass. 539, 28 N. E. 1046. So, also, where the owners of
a defective pier were held liable to a stevedore for its falling down, although
the lessees had covenanted to keep it in repair. Swords v. Edgar, 59 N. Y. 28.
123) PREMISES DEFECTIVE AT TIME OF RENTING. 313
however, where the tenant covenants to keep the premises in re-
pair, he, and not the landlord, will be liable for any failure in that
respect. 5 But if the landlord undertakes to make repairs, regard-
less of any agreement either on his part or that of the tenant, he will
be liable for any negligence in that connection. 6
SAME PREMISES DEFECTIVE AT TIME OF RENTING.
123. The landlord is liable, equally -with the tenant, to
persons other than patrons or guests of the latter,
for injuries resulting from, the defective condition
of the premises at the inception of the lease.
When the landlord makes a lease of premises which are at the
time in a ruinous or defective condition, he is considered as au-
thorizing or abetting a wrong, and will be liable for injuries suffered
by third persons in consequence, and in such case the tenant is
equally liable with the owner. 1 The burden is, however, on the
plaintiff to show the existence of the defective condition prior to
the inception of the lease. 2 But guests or patrons of the tenant,
coming on the premises at his request, cannot look to the land-
lord for recompense for injuries which they receive through defects
e Glass v. Colman, 14 Wash. 635, 45 Pac. 310; Pretty v. Bickmore, L. R.
8 C. P. 401, approved in Gwinnell v. Earner, L. R. 10 C. P. 658.
s Gill v. Middleton, 105 Mass. 477; Callahan v. Laughran, 102 Cal. 476, 36
Pac. 835.
123. ! Both the owner who constructs an offensive cesspool and the
tenant who uses the premises are liable for injury to an adjoining occupant.
O wings v. Jones, 9 Md. 108; Joyce v. Martin, 15 R. I. 558, 10 Atl. 620. See,
also, McDonough v. Gilman, 3 Allen (Mass.) 264; O'Connor v. Andrews, 81
Tex. 28, 16 S. W. 628; McGuire v. Spence, 91 X. Y. 303; Davenport v. Ruck-
man, 10 Bosw. (N. Y.) 20, 37, 16 Abb. Prac. (X. Y.) 341, affirmed in 37 X. Y. 568:
Moody v. City of Xew York, 43 Barb. (N. Y.) 282; Fish v. Dodge, 4 Denio
(X. Y.) 311; Kuauss v. Brua, 107 Pa. St. 85; Dorman v. Ames, 12 Minn. 431
(Gil. 347); House v. Metcalf, 27 Conn. 031; Larue v. Hotel Co., 116 Mass. 67;
Hines v. Willcox, 96 Tenn. 148, 33 S. W. 914; Todd v. Flight, 9 C. B. (X. S.)
377; Gaudy v. Jubber, 5 Best & S. 485; Rich v. Basterfield, 4 C. B. 783; Rus-
sell v. Shenton, 3 Q. B. 449. Boarder of tenant, Stenberg v. Willcox, 96 Term.
163, 33 S. W. 917; Matthews v. De Groff, 13 App. Div. 356, 43 N. Y. Supp.
237; Mancuso v. Kansas City, 74 Mo. App. 138.
2 Union Brass Mfg. Co. v. Lindsay, 10 111. App. 583.
314 OCCUPATION AND USE OF LAND AND WATER. (Ch. 7
in the premises, even if the defects existed before the tenant went
into possession, 3 or even if the landlord has agreed to repair. 4
It is essential to the landlord's liability that he had notice, either
actual or constructive, of the existence of the defect. 5 It follows
as a corollary that when, at the time of the leasing, the premises are
not dangerous, and do not constitute a nuisance, but become such
through the act of the tenant, the owner is not responsible. 6 Thus,
if a landlord lets premises with a stack of chimneys in a ruinous or
fallen condition, he is liable for damages ; 7 but if he builds a chim-
ney, which, by the act of the tenant, becomes a nuisance, although
the tenant could have built fires so that a nuisance could have been
avoided, the tenant is liable, and not the landlord. 8 But if the con-
dition of nuisance develops as a natural consequence from the use
for which the premises were demised, the liability rests on the land-
lord for injury caused thereby. 9 So, where the demise was of a
lime kiln and quarry, the landlord was held liable for the nuisance
resulting from smoke from the kiln, as being the necessary conse-
quence of an act he had authorized. 10 Where the landlord licenses
Bobbins v. Jones, 15 C. B. (N. S.) 221, 240; Moore v. Steel Co. (Pa. Sup.)
7 Atl. 198; Mellen v. Morrill, 126 Mass. 545; Marshall v. Heard, 59 Tex. 266;
Ploen v. Staff, 9 Mo. App. 309; Burdick v. Oheadle, 26 Ohio St. 393. But see,
as to employ^, Anderson v. Hayes, 101 Wis. 538, 77 N. W. 891.
* Burdick v. Cheadle, 26 Ohio St. 393; Ploen v. Staff, 9 Mo. App. 309.
c Welfare v. Railway Co., L. R. 4 Q. B. 693; Southcote v. Stanley, 1 Hurl.
& N. 247; Slight v. Gutzlaff, 35 Wis. 675. But such knowledge may be con-
structive. Timlin v. Oil Co., 12G N 7 . Y. 514, 27 N. E. 786; Dickson v. Railway
Co., 71 Mo. 575. And it has been held that, even if the landlord had notice of
the defect, he is not liable if the tenant is bound to repair. Pretty v. Bick-
more, L. R. 8 C. P. 401; Gwinnell v. Earner, L. R. 10 C. P. 658. But see
Ingwersen v. Rankin, 47 N. J. Law, 18; Coupe v. Platt, 172 Mass. 458, 52 N.
E. 526; Willcox v. Hines, 100 Tenn. 524, 45 S. W. 781.
e Roswell v. Prior, 12 Mod. 635; Godley v. Hagerty, 20 Pa. St. 387; Coii-
greve v. Smith, 18 N. T. 79; Clifford v. Dam, 81 N. Y. 52. Cf. Fisher v.
Thirkell, 21 Mich. 1-20. The owner and tenant may be jointly liable. Joyce
v. Martin, 15 R. I. 558, 10 Atl. 620 (reviewing cases).
7 Todd v. Flight, 9 C. B. (N. S.) 377.
Rich v. Basterfield, 4 C. B. 783; Stickney v. Munroe, 44 Me. 195.
e Godley v. Hagerty, 20 Pa. St. 387; Congreve v. Smith, 18 N. Y. 79; Clif-
ford v. Darn, 81 N. Y. 52.
10 Harris v. James, 45 Law J. Q. B. 545.
124) LIABILITY TO TENANT. 315
the lessee to perform acts amounting to a nuisance, he is, of course,
liable. 11
SAME LIABILITY TO TENANT.
124. The landlord is not, in general, liable to his tenant,
or his tenant's servants or guests, for injuries caused
by defects in the premises, unless
(a) The former has agreed to repair, or unless
(b) The tenant is compelled to endanger himself in ob-
taining access to the premises.
It is a generally accepted rule that, in the absence of fraud or
deceit, no implied covenant exists that the premises are adapted
or fit for the purposes for which they are demised. 1 If, therefore,
the leased premises become unfit for use, the tenant, in the ab-
sence of a specific agreement, has no redress against the landlord, 2
11 White v. Jameson, L. K. 18 Eq. 303. And see Lufkin v. Zane, 157 Mass.
117, 31 N. E. 757.
124. i Jaffe v. Harteau, 56 N. Y. 398; O'Brien v. Capwell, 59 Barb. (N.
Y.) 497; Cleves v. Willoughby, 7 Hill (N. Y.) 83; Flynn v. Hatton, 43 How.
Prac. (N. Y.) 333; Button v. Gerrish, 9 Gush. (Mass.) 89; Foster v. Peyser,
Id. 242; Royce v. Guggenheim, 106 Mass. 201; Elliott v. Aiken, 45 N. H. 30;
Scott v. Simons, 54 N. H. 426; Hart v. Windsor, 12 Mees. & W. 68; Chappell
v. Gregory, 34 Beav. 250. If the landlord, in making repairs, neglects to use
ordinary skill, thereby injuring the tenant, he is liable, although the repairs
were gratuitous, and at the solicitation of the tenant. Gill v. Middleton, 105
Mass. 477; Callahan v. Laughran, 102 Cal. 476, 36 Pac. 835; Buckley v.
Cunningham, 103 Ala. 449, 15 South. 826; Baker v. Holtpzaffell, 4 Taunt. 45;
Bowe v. Hunking, 135 Mass. 380; Naumberg v. Young, 44 N. J. Law, 331-345.
But the law has been changed by statute in OHIO and INDIANA. See, also,
Hollis v. Brown, 33 Am. Law Reg. 114, 115, 159 Pa. St. 539, 28 Atl. 360; Harpel
v. Fall, 63 Minn. 520, 65 N. W. 913; Holton v. Waller, 95 Iowa, 545, 64 N. W.
633. The maxim caveat emptor applies equally to the transfer of real as well
as personal property. Thomp. Neg. p. 323.
2 Mumford v. Brown, 6 Cow. (N. Y.) 475; Howard v. Doolittle, 3 Duer (N.
Y.) 464; Doupe v. Genin, 45 N. Y. 119. And, of course, if the lessee, by the
terms of the lease, assumes all risk, the lessor will not be liable for damages
by reason of nonrepair. Fera v. Child, 115 Mass. 32. Per contra, if the
agreement is otherwise. Moore v. Steljes, 69 Fed. 518; Laird v. McGeorge,
16 Misc. Rep. 70, 37 N. Y. Supp. 631; Schanda v. Sulzberger, 7 App. Div. 221,
40 N. Y. Supp. 116; Miller v. Rinaldo, 21 Misc. Rep. 470, 47 N. Y. Supp. 636;
Wynne v. Haight, 27 App. Div. 7, 50 N. Y. Supp. 187; Willcox v. Hines, 100
316 OCCUPATION AND USE OF LAND AND WATER. (Ch. 7
and servants and others entering under the tenant's title assume
the like risk. 3 But the landlord may neither impair the tenure by
his own acts, or permit it to be impaired by the acts of third per-
sons. 4 And so a tenant may maintain an action against his land-
lord for permitting a third person to construct a chimney obstruct-
ing plaintiff's windows. 6
125. SAFE ACCESS TO RENTED PROPERTY The ten-
ant is entitled to reasonably safe ingress to and
egress from the leased premises, and has recourse
against the landlord for his failure of duty in this
regard.
The landlord cannot compel the tenant to endanger himself in
obtaining access to the demised premises; and when the tenant,
in order to reach the leased property, is obliged to pass over other
property belonging to the landlord, he is entitled to have them kept
in a reasonably safe condition. 1
If the owner agrees to make repairs, damage consequent on fail-
ure to perform the covenant may be actionable ex contractu. If
damage result from negligence in making repairs under the agree-
ment, recovery may be had ex delicto. 2 But the rule does not apply
Tenn. 538, 46 S. W. 297; Lane v. Cox [1897] 1 Q. B. 415; Dowling v.
Nuebling, 97 Wis. 350, 72 N. W. 871; Haizlip v. Rosenberg, 63 Ark. 430, 39
S. W. 60. But see Feinstein v. Jacobs, 15 Misc. Rep. 474, 37 N. Y. Supp. 345.
3 Nelson v. Brewery Co., 2 C. P. Div. 311; O'Brien v. Capwell, 59 Barb.
(N. Y.) 497; Bui-dick v. Cheadle, 26 Ohio St. 393; Anderson v. Hayes (Wis.)
77 N. W. 891; Whitmore v. Paper Co., 91 Me. 297, 39 Atl. 1032, 40 L. R. A.
377; Robbins v. Jones, 15 C. B. (N. S.) 221, 240. Members of lessee's family.
Clyne v. Holmes (N. J. Sup.) 39 Atl. 707.
* Hysore v. Quigley, 9 Houst. 348, 32 Atl. 960; Jefferson v. Jameson &
Morse Co., 60 111. App. 587.
s Case v. Minot, 158 Mass. 577, 33 N. E. 700.
125. i Totten v. Phipps, 52 N. Y. 354; Elliott v. Pray. 10 Allen (Mass.)
378; Gleason v. Boehm, 58 N. J. Law, 475. 34 Atl. 880; Feinstein v. Jacobs.
35 Misc. Rep. 474, 37 N. Y. Supp. 345; Harkin v. Crumbie, 14 Misc. Rep.
439, 35 N. Y. Supp. 1027; O'Dwyer v. O'Brien, 13 App. Div. 570, 43 X. Y.
Supp. 815.
2 Jag. Tofts, p. 227; Clapper v. Kells, 78 Hun. 34. 28 X. Y. Supp. 1018;
Randolph v. Feist, 23 Misc. Rep. 650, 52 X. Y. Supp. 109; Barman v. Spencer
(Ind. Sup.) 49 N. E. 9; Robbins v. Atkins, 168 Mass. 45, 46 X. E. 425; Wert-
120) WATER COURSES. 317
where the injury is sustained by the guest of the tenant, who comes
on the leased premises under the tenant's invitation. In such case
the injured party must look to the tenant for his compensation. 3
It is hardly necessary to add that the tenant cannot throw the
burden of liability on the landlord in any case where the injury is
due to his improper or careless use of an appurtenance or appliance
which, although defective, could have been safely used with due
care, or need not have been used at all. Thus, if a tenement con-
tains a defective chimney, and the tenant, knowing its condition,
uses it carelessly or unnecessarily, he cannot complain if he is
damaged thereby; nor, if such use result in injury to others, could
he defend by showing a covenant to repair on the part of the land-
lord.*
WATER COURSES.
126. Every riparian owner is entitled to have the -water
flow in its natural channel, and any interference
with its movement is a direct violation of such right,
for -which the injured party may obtain redress. 1
heimer v. Saunders, 95 Wis. 573, 70 N. W. 824. Necessity of notice to land-
lord to fix liability. Marley v. Wheelwright, 172 Mass. 530, 52 N. E. 1066;
Idel v. Mitchell, 158 N. Y. 134, 52 N. E. 740; Lynch v. Swan, 167 Mass. 510,
40 X. E. 51. But the fact that the landlord, after the cellar had become
flooded with filth and water, gratuitously undertook to remove the same,
and did so negligently, does not entitle the tenant to abandon the prem-
ises. Blake v. Dick. 15 Mont. 236, 38 Pac. 1072; Callahan v. Loughran, 102
Cal. 476, 36 Pac. 835.
s Bobbins v. Jones, 15 C. B. (N. S.) 221, 240; Mellen v. Morrill, 126 Mass.
545; Marshall v. Heard. 59 Tex. 266; Moore v. Steel Co. (Pa. Sup.) 7 Atl. 198;
Ganley v. Hall, 168 Mass. 513, 47 N. E. 416; Harkin v. Crumbie, 20 Misc.
Bep. 568, 46 X. Y. Supp. 453; Hanson v. Beckwith (R. I.) 37 Atl. 702. Nor
is it material that the injuries are sustained during the existence of a
covenant on the part of the landlord to repair. Ploen v. Staff, 9 Mo. App.
309; Burdick v. Cheadle, 26 Ohio St. 393; Eyre v. Jordan, 111 Mo. 424, 19
S. W. 1095. But see Barman v. Spencer (Ind. Sup.) 49 N. E. 9.
* Boston v. Gray, 144 Mass. 53, 10 N. E. 509; Shindelbeck v. Moon, 32
Ohio St. 264; Reiner v. Jones (Sup.) 56 N. Y. Supp. 423; Pickard v. Smith,
10 C. B. (N. S.) 470.
126. i Bellinger v. Railroad Co., 23 N. Y. 42. See, also, Pixley v.
Clark. 35 X. Y. 520; Selden v. Canal Co., 24 Barb. (N. Y.) 362; Plattsmouth
Water Co. v. Smith (Xeb.) 78 N. W. 275.
318 OCCUPATION AND USE OP LAND AND WATER. (Ch. 7
Ordinarily, the question of want of due care or negligence does not
arise in this class of cases, for the reason that the action depends
on the immediate and direct violation of the right of the riparian
owner to have the water flow in its natural channel; but, if the in-
terference is pursuant to legislative authority, liability results for
such injury only as arises from want of due care and skill in the
performance of the work. 2
SAME CONSTRUCTION AND MAINTENANCE OF DAMS.
127. One may rightfully construct a dam on his own land,
but he must so construct it as not to injure others
having vested rights liable to be affected thereby.
Thus, one who builds a darn is liable to another riparian owner
for damages caused by the consequent displacement of the water,
whether it occurs by reason of flowage, overflow, or percolation. 1
But, when the injury is to other mills on the same stream, to entitle
the injured party to redress it must appear either that the work was
improperly done, or that the injury was direct and palpable. 8 In
such cases the law raises a presumption of damage. 8
128. RULE IN UNITED STATES When one builds a
milldam upon a proper model, and the work is well
and substantially done, he is not liable in an action,
though it break away, in consequence of which his
neighbor's dam and mill below are destroyed. Neg-
ligence must be shown, in order to make him lia-
ble. 1
* Bellinger v. Railroad Co., 23 N. Y. 47.
127. iPixley v. Clark, 35 N. Y. 520; Crittendon v. Wilson, 5 Cow. (N.
Y.) 165.
2 Robertson v. Miller, 40 Conn. 40; Hartzall v. Sill, 12 Pa. St. 248; Hoy
v. Sterrett, 2 Watts (Pa.) 327; Shear. & R. Neg. (4th Ed.) 730.
s Hatch v. Dwight, 17 Mass. 289; Woodman v. Tufts, 9 N. H. 88; Van
Bergen v. Van Bergen, 3 Johns. Ch. (N. Y.) 282.
128. i Livingston v. Adams, 8 Cow. (N. Y.) 175.
129) OBSTRUCTION OF NAVIGABLE STREAMS. 319
The foregoing is the rule almost universally followed. in this coun-
try. 2 If, therefore, one rightfully constructs a dam, and, by rea-
son of an unforeseen accumulation of water or ice, it bursts through,
and floods the surrounding country, or washes away the dam of a
lower mill owner, he will not be liable for the consequent damage,
unless it appears that it was caused through his fault or negli-
gence. 3 Of course, it will not be sufficient defense in such case to
show that the dam was strong enough to resist ordinary floods; 4
it must appear that it was constructed with due diligence and care,
and was strong enough to resist freshets reasonably within the
range of probability. 5
The English rule differs from the above. Under their decisions
the accumulation of water, either in dams or reservoirs, by artifi-
cial means, is made analogous to the possession and confinement
of wild and dangerous animals, which must, at the peril of the owner,
be kept from doing harm. The question of due care and diligence
in the construction of dams is, therefore, eliminated from their
cases. 6
SAME OBSTRUCTION OF NAVIGABLE STREAMS.
129. The rights of the riparian owner and the navigator
of a stream are reciprocal, and neither may un-
necessarily or negligently interfere with the erjoy-
ment by the other of his prerogative.
a Livingston v. Adams, 8 Cow. (N. Y.) 175; Pixley v. Clark, 32 Barb. (N.
Y.) 268, reversed in 35 N. Y. 520; Losee v. Buchanan, 51 N. Y. 476, directly
overruling Fletcher v. Rylands, L. R. 1 Exch. 265; Lapham v. Curtis, 5
Vt. 371; Todd v. Cochell, 17 Cal. 97; Inhabitants of Shrewsbury v. Smith,
12 Gush. (Mass.) 177; Sheldon v. Sherman, 42 N. Y. 484.
a Ang. Water Courses, 336.
* Ang. Water Courses, 336.
s Livingston v. Adams, 8 Cow. (N. Y.) 175; Pixley v. Clark, 32 Barb. (N.
Y.) 268; Everett v. Flume Co., 23 Cal. 225; Gray v. Harris, 107 Mass. 492;
Lapham v. Curtis, 5 Vt. 371; Town of Monroe v. Connecticut River Lum-
ber Co. (N. H.) 39 Atl. 1019; Hunter v. Pelham Mills, 52 S. C. 279, 29 S.
E. 727.
e Fletcher v. Rylands, L. R. 1 Exch. 2G5, affirmed in L. R. 3 H. L. 330;
Smith v. Fletcher, L. R. 7 Exch. 305.
320 OCCUPATION AND USE OF LAND AND WATEK. (Ch. 7
The rights. of the riparian owner and one seeking to use the wa-
ters for legitimate purposes are reciprocal. The one has an abso-
lute right to the peaceable enjoyment of his lands; the other, as
a member of the public, has an equal right to navigate the stream;
but neither may unnecessarily or negligently interfere with the
other's enjoyment of his prerogative. Thus, keeping a boom fas-
tened to the shore unnecessarily, or for too long a time, would create
a nuisance, 1 and would be abatable by indictment. If, however, the
owner of a wreck abandons it, he will not be responsible for ob-
structing the channel, nor to another vessel owner for damages
caused thereby ; 2 but, if he retains control of it, he is bound to
exercise due care and diligence in its removal. 3 And if a bridge
is built across a navigable stream, even with legislative sanction,
it will still be an abatable nuisance if not constructed with due
care and regard for the navigable properties of the stream.*
129. iWeise v. Smith, 3 Or. 445.
2 Winpenny v. Philadelphia. 65 Pa. St. 136; Rex v. Watts, 2 Esp. 675.
But see Boston & Hingham Steamboat Co. v. Munson, 117 Mass. 34.
s Taylor v. Insurance Co., 37 N. Y. 275; Boston & Hingham Steamboat
Co. v. Munson, 117 Mass. 34.
* Dugan v. Bridge Co., 27 Pa. St. 303; Monongahela Bridge Co. v. Kirk,
46 Pa. St. 112; Eastman v. Manufacturing Co., 44 N. H. 143; Lansing v.
Smith, 8 Cow. (N. Y.) 146; Ely v. City of Rochester, 26 Barb. (N. Y.) 133.
130 DANGEROUS INSTRUMENTALITIES. 32]
CHAPTER VIII.
DANGEROUS INSTRUMENTALITIES.
130. Railroads Degree of Care Exacted in Operating.
131-132. Collision with Persons Care Required of Railroad.
133. Care Proportioned to Danger.
134. Signals.
135. Care Required of Persons.
136. Failure to Give Signals.
137. Assurance of Safety by Agents.
138. Obstructed View.
139. Infirm Travelers.
140. Contributory Negligence.
141. Collision with Animals.
142. Wanton or Willful Injury.
143. Care after Discovery.
144. Fences.
145. Fires.
146. Intentional Fires.
147. Accidental Fires.
148. Railroad Fires.
149. Degree of Care.
150. Animals.
151. Domestic Animals.
152. Communicating Disease.
153. Firearms.
154. Explosives.
155. Poisons.
BAILROADS DEGREE OF CARE EXACTED IN OPERATING.
130. It is the duty of a railroad company to use ordinary
care in the operation of its trains to avoid injury
to those persons who, not being passengers or em-
ployes, are rightfully upon or near its tracks.
Many of the duties incident to the operation of railroads have
been already enumerated and discussed under the heads of "Com-
mon Carriers" or "Master and Servant." It remains, however, to
consider the relation of this class of carriers to that portion of the
BAR.NEG. 21
322 DANGEROUS INSTRUMENTALITIES. (Ch. 8
general public whose rights are affected by involuntary contact
with the operation of railroads, and the mutual duties that spring
from such relation. Aside from its duties as a common carrier of
goods or passengers, a railroad, in its general conduct and opera-
tion, is subject only to the application of those general rules of care
and prudence which the law imposes upon any one who controls or
operates a dangerous instrumentality. It is only in so far as the
operation of railroads involves the use of unusually and obviously
dangerous agencies which, in the absence of proportionate care,
would endanger the lives and property of the general public, that
the subject demands special attention. And in this particular it is
evident that the chief source of danger is that of collision between
railroad trains and persons or animals.
SAME COLLISION WITH PERSONS CARE REQUIRED OP
RAILROAD.
131. It is the duty of the company to exercise towards a
member of the public, rightfully upon or near its
track, that degree of care which an ordinarily pru-
dent person would exercise in operating a train in
similar circumstances.
132. The care required in a given case must be in propor-
tion to the liability of collision, and includes rigid
observance of statutory requirements, and such
other and further signals, lights, rate of speed, and
regulations as circumstances reasonably require.
The speed and weight of a railroad train constitute a danger-
ous agency, raising the degree of actual care commensurate with
its safe operation vastly higher than that required in driving a de-
livery wagon or a coach. 1 And therefore, while it is strictly ac-
curate to say that no more than ordinary care for the safety of
the nontraveling public is required in the operation of railroad
trains, it is misleading, for "ordinary care," in such a sense, often
131-132. i Johnson v. Railroad Co., 6 Duer (.N. Y.) 633, affirmed in 20
N. Y. 05.
131-132) COLLISION WITH PERSONS. 323
amounts to very nearly the utmost care which the circumstances
permit. 2
But while the true test is doubtless the degree of care which an
ordinarily prudent person, skilled in the management of trains,
would have employed in the particular circumstances, it must be
borne in mind that the circumstances themselves entitle the opera-
tor of the train to make certain presumptions. Thus, the engineer
of a train approaching a crossing, and giving the proper and reason-
able signals by ringing or whistling, may rightfully assume that a
person upon the crossing, having ample time to do so, will cross
before the arrival of the train, and to this extent, at least, the train
has the right of way. 8 The same is also true of the operation of
street cars, and the walking and driving public are bound, so far as
they can reasonably do so, to keep out of the way of the cars. And
so, if defendant's street car collides with plaintiff's wagon, which
is being driven upon its tracks, it does not follow conclusively that
the collision was due to defendant's negligence. It is essential, to
a recovery in such a case, to show that defendant failed to exercise
the degree of care which an ordinarily prudent person would have
used in similar circumstances. 4
Ordinary Care Illustrations.
Illustrations of the care required of railroads towards those right-
fully upon or near their tracks are almost innumerable. A railroad
2 In Johnson v. Railroad Co., 20 N. Y. 65, the court charged that, in the
circumstances, the defendants were "bound to exercise the utmost care and dili-
gence, and, for the purpose of avoiding accidents endangering property and
life, were bound to use all the means and measures of precaution that the
highest prudence could suggest, and which it was in their power to employ."
See, also, Weber v. Railroad Co., 58 N. Y. 451; Kay v. Railroad Co., 65 Pa. St.
269; Pennsylvania R. Co. v. Coon, 111 Pa, St. 430, 3 Atl. 234; Fallen v.
Boston, 3 Allen (Mass.) 38; Fletcher v. Railroad Co., 1 Allen (Mass.) 9.
a Black v. Railroad Co., 38 Iowa, 515; Madison & I. R. Co. v. Taffe, 37 Ind.
361, 364; Pennsylvania Co. v. Krick, 47 Ind. 368; Illinois Cent. R, Co. v. Ben-
ton, 69 111. 174.
* Gumb v. Railway Co., 53 N. Y. Super. Ct. 466. See, also, Com. v. Boston
& W. R. Corp., 101 Mass. 201. But see Bernhard v. Railway Co., 68 Hun,
369, 22 N. Y. Supp. 821; Harvey v. Railroad Co., 35 App. Div. 307, 55 N. Y.
Supp. 20; De loia v. Railroad Co., 37 App. Div. 455, 56 X. Y. Supp. 22; Lef-
kowitz v. Railway Co. (Sup.) 56 N. Y. Supp. 215; Cawley v. Railway Co.,
101 Wis. 145, 77 N. W. 179.
324 DANGEROUS INSTRUMENTALITIES. (Ch. 8
company is liable to one rightfully standing on its platform for in-
juries resulting from being struck by a mail bag 5 or timber 6 thrown
from its train; for letting off steam or hot water in a negligent
manner. 7 Whether it is the duty of a railroad to warn persons
passing a crossing that there is danger from steam escaping is a
question for the jury. 8 Unnecessary and extraordinary use of the
whistle is negligence. 9 It is negligence to back a train, for pur-
poses of coupling, without giving customary signals. 10 And, al-
though a signal is not required by statute, if reasonable precaution
requires it, it should be given; X1 and, conversely, the giving of
statutory signals does not always discharge the company from neg-
ligence. 12 Where plaintiff's intestate, in crossing defendant's tracks
at their intersection with a city street, on a dark night, was struck
by an engine moving backwards, the charge that "the company was
bound to have so much light, and so located, that a person reason-
ably diligent, and of natural powers of observation, might have
been able to discover it," was held correct. 13 As a matter of law,
it is not negligence if an engineer, seeing danger 400 feet ahead,
and doing everything in his power, is not able to check his train. 14
It is for the jury to determine, in the circumstances, whether the
s Galloway v. Railway Co., 56 Minn. 346, 57 N. W. 1058; Carpenter v. Rail-
road Co., 97 N. Y. 494.
e Toledo, W. & W. Ry. Co. v. Maine, 67 111. 298; Fletcher v. Railroad Co.,
168 U. S. 135, 18 Sup. Ct. 35.
7 Texas & P. Ry. Co. v. Woodall, 2 Willson, Civ. Gas. Ct. App. 471.
s Lewis v. Railroad Co., 60 N. H. 187.
Philadelphia & R. R. Co. v. Killips, 88 Pa. St. 405. And see Gibbs v. Rail-
way Co., 26 Minn. 427, 4 N. W. 819; Billman v. Railroad Co., 76 Ind. 166;
Pennsylvania R. Co. v. Barnett, 59 Pa. St. 259. Negligently blowing whistle
and scaring horses. Chicago, B. & Q. R. Co. v. Yorty, 158 111. 321, 42 N. E.
64; Gulf, C. & S. F. Ry. Co. v. Spence (Tex. Civ. App.) 32 S. W. 329; Rodgers
v. Railway Co., 150 Ind. 397, 49 N. E. 453.
10 Roniick v. Railway Co., 62 Iowa, 167, 17 N. W. 458.
11 Bradley v. Railroad Co., 2 Gush. (Mass.) 539.
12 Bradley v. Railroad Co., 2 Cush. (Mass.) 539; Thompson v. Railroad Co.,
110 N. Y. 636, 17 N. E. 690; Vandewater v. Railroad Co., 135 N. Y. 583, 32 N. E.
636.
is Cheney v. Railroad Co., 16 Hun ^N. Y.) 415; Purnell v. Railroad Co., 122
N. C. 832, 29 S. E. 953.
i* Ex parte Stell, 4 Hughes, 157, Fed. Cas. No. 13,358.
133) CARE PROPORTIONED TO DANGER. 325
so-called "flying switch" is safe and prudent. 15 Although not re-
quired by law to keep a flagman at a crossing, the company is liable
for the negligence of one voluntarily so placed. 18 So, also, in the
operation of a gate voluntarily placed at a crossing. 17 But one
for whose benefit a signal was not intended cannot complain of its
omission, and it was so held where the death of one killed at a
farm crossing was attributed to defendant's failure to give custom-
ary signals for the highway crossing beyond. 18
133. CARE PROPORTIONED TO DANGER The degree
of actual care required of the company increases in
proportion to the danger of accident arising from
the location of the track or crossing, or any other
circumstance of -which the company has knowledge,
and which tends to conceal, obscure, or otherwise
increase the danger of collision.
Where the track parallels the highway, or runs upon it, or where
crossings are unusually numerous or frequented, the danger of ac-
cident from the operation of trains is greatly increased, and ordi-
nary care in these circumstances may require a very high degree
of diligence. 1 Circumstances may require a greater degree of care
IB White v. Railroad Co., 136 Mass. 321; Howard v. Railroad Co., 32 Minn.
214, 20 N. W. 43. But a flying switch over a highway has been held gross
and criminal negligence. Brown v. Railroad Co., 32 N. Y. 597; O'Connor v.
Railroad Co., 94 Mo. 150, 7 S. W. 106; Chicago & A. R. Co. v. O'Neil, 64 111.
App. 623.
is Sweeny v. Railroad Co., 10 Allen (Mass.) 368; Kissenger v. Railroad
Co., 56 X. Y. 538. And even the absence of a gate or flagman may impute
negligence, Eaton v. Railroad Co., 129 Mass. 364; or may be for the jury,
Lesan v. Railroad Co., 77 Me. 85.
17 Glushing v. Sharp, 96 N. Y. 676; Palmer v. Railroad Co., 112 N. Y. 234,
19 N. E. 678.
is Yandewater v. Railroad Co., 135 N. Y. 583, 32 N. E. 636; Reynolds v.
Railroad Co.. 16 C. C. A. 435, 69 Fed. 808; Atlanta & Central Air-Line Ry.
Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550. Per contra, Galveston, H. & S. A.
Ry. Co. v. Garteiser, 9 Tex. Civ. App. 456, 29 S. W. 939.
133. i Toledo, W. & W. R. Co. v. Harmon, 47 111. 298; Weber v. Railroad
Co., 58 N. Y. 451; Dyer v. Railroad Co., 71 X. Y. 228; Thompson v. Railroad
Co., 110 N. Y. 636, 17 N. E. 690; Houston & T. C. R. Co. v. Laskowski (Tex.
326 DANGEROUS INSTRUMENTALITIES. (Ch. 8
than is comprehended in such ordinary precautions as a slow rate
of speed, 2 ringing the bell, 3 and sounding the whistle, 4 and it was
held that it was not error to charge that the engineer must "keep
a lookout to see whether he is running down foot passengers who
are crossing the railroad track upon the highways of the city." 5
Where the danger is increased by the darkness of night, suitable
rear and head lights must be used, and the number and character
is for the jury to determine in the circumstances. 6 In approaching
crowded or much-used crossings, the engineer, in addition to ordi-
nary signals, should slacken speed, so that he can readily place it
under control if it becomes necessary; 7 but an instruction that a
train approaching a crossing should be under control has been held
erroneous. 8 Where the location of the crossing is such that the
traveler cannot see the train, or readily hear the signals, the engi-
neer must observe every reasonable precaution. 9 The proximity in
which trains are run over public crossings may also constitute neg-
Civ. App.) 47 S. W. 59. Causing an obstruction of the view from a crossing
by piling wood or erecting buildings, Mackay v. Railroad Co., 35 N. Y. 75; or
permitting weeds to grow in right of way, with same result, Indianapolis &
St. L. R. Co. v. Smith, 78 111. 112, is negligence.
2 Chicago, B. & Q. R. Co. v. Dougherty, 12 111. App. 181; Chicago & A. R.
Co. v. Dillon, 123 111. 570, 15 N. E. 181.
sVandewater v. Railroad Co., 74 Hun, 32, 26 N. Y. Supp. 397; Barry v.
Railroad Co., 92 N. Y. 289.
* Indianapolis & St. L. R. Co. v. Stout, 53 Ind. 143.
e Cheney v. Railroad Co., 16 Hun (N. Y.) 415.
Cheney v. Railroad Co., 16 Hun (N. Y.) 415; Indianapolis & St. L. R. Co.
v. Galbreath, 63 111. 436; Baltimore & O. S. W. Ry. Co. v. Alsop, 71 111. App. 54.
7 Powell v. Railway Co., 59 Mo. App. 626; Lafayette & I. R. R. Co. v. Adams,
26 Ind. 76; Maginnis v. Railroad Co., 52 N. Y. 215. But this does not apply to
crossings seldom frequented. Warner v. Railroad Co., 44 N. Y. 465; Chicago,
R. I. & P. Ry. Co. v. Ohlsson, 70 111. App. 487.
s Cohen v. Railroad Co., 14 Nev. 376. See, also, Telfer v. Railroad Co., 30
N. J. Law, 188; Chicago & A. R. Co. v. Robinson, 9 111. App. 89.
Grippen v. Railroad Co., 40 N. Y. 34; Eilert v. Railroad Co., 48 Wis. 606,
4 N. W. 769; Richardson v. Railroad Co., 45 N. Y. 846; Baltimore & P. R.
Co. v. Webster, 6 App. D. C. 182; Willet v. Railroad Co., 114 Mich. 411, 72
N. W. 260. It is negligence on the part of the company to permit weeds to
grow in its right of way adjacent to a crossing so as to obstruct the view of
one about to cross. Indianapolis & St. L. R. Co. v. Smith, 78 111. 112; Chicago,
B. & Q. R. Co. v. Lee, 87 111. 454.
133) CARE PROPORTIONED TO DANGER. 327
ligeuce, if it is so great as to make the customary signals unavail-
ing. This was so held in a case where plaintiff was waiting for a
long train to pass in order to cross. So soon as the train had
passed, and after looking up and down the track so far as was
possible, she attempted to cross, but was injured by another train,
following closely behind the first. 10 To constitute a public cross-
ing, it is not necessary that it should be a highway. When the
public have for a long time openly, habitually, and with the ac-
quiescence of the railroad company crossed a railroad at a point
not a traveled way, such acquiescence amounts to a license, and the
company is bound to exercise reasonable care to avoid injury to
persons crossing at that point; " and this is true even if such cross-
ing is contrary to statute, 12 or in violation of the rules of the com-
pany. 13 It is for the jury to determine in such case as to the suffi-
ciency and reasonableness of the warning. 14 But where the com-
pany has merely permitted an indiscriminate crossing, 15 or the act
is in itself a trespass, 16 the company will be relieved of liability by
10 Chicago & E. I. R. Co. v. Boggs, 101 Ind. 522; Golden v. Railroad Co., 187
Pa. St. 635, 41 Atl. 302, 43 Wkly. Notes Cas. 106; but this would not* be neg-
ligence at a place not a public crossing, Philadelphia & R. R. Co. v. Spearen,
47 Pa. St. 300. And see French v. Railroad Co., 116 Mass. 537.
11 Norfolk & W. R. Co. v. De Board's Adm'r, 91 Va. 700, 22 S. E. 514; Han-
sen v. Railway Co., 105 Cal. 379, 38 Pac. 957; Swift v. Railroad Co., 123 N.
Y. 645, 25 N. E. 378; Taylor v. Canal Co., 113 Pa. St. 162, 8 Atl. 43; Byrne
v. Railroad Co., 104 N. Y. 362, 10 N. E. 539; Cleveland, C., C. & St. L. R.
Co. v. Adair, 12 Ind. App. 569, 39 N. E. 672, and 40 N. E. 822; Boothby v.
Railroad Co., 90 Me. 313, 38 Atl. 155; Johnson v. Railway Co., 7 N. D. 284,
75 X. W. 250; Seymour v. Railroad Co., 69 Vt. 555, 38 Atl. 236; Smith v.
Railway Co., 90 Fed. 783. But the federal court holds that a railroad is liable
to a bare licensee for gross negligence only. Cleveland, C., C. & St. L. R. Co.
v. Tartt, 12 C. C. A. 618, 64 Fed. 823.
12 Davis v. Railway Co., 58 Wis. 646, 17 N. W. 406; Townley v. Railroad
Co., 53 Wis. 62G, 11 N. W. 55.
is Delaney v. Railroad Co., 33 Wis. 67. But see Matze v. Railroad Co., 1
Hun (X. Y.) 417; Hansen v. Railway Co., 105 Cal. 379, 38 Pac. 957.
i* Byrne v. Railroad Co., 104 N. Y. 362, 10 N. E. 539; Swift v. Railroad Co.,
123 X. Y. 645, 25 X. E. 378.
15 Harrison v. Railroad Co., 29 L. T. (X. S.) 844.
IB Matze v. Railroad Co., 1 Hun (N. Y.) 417; Felton v. Aubrey, 20 C. C. A.
436, 74 Fed. 350.
328 DANGEROUS INSTRUMENTALITIES. (Ch. 8
showing the very least degree of care, falling little short of gross
negligence. 17
134. SIGNALS Violation of statutes requiring the giving
of certain signals is generally held to constitute
negligence per se. 1
Tt should be observed, however, that the mere fact of omission
to give certain signals required by statute or ordinance is not con-
clusive of violation, for extenuating circumstances may be shown,
which would relieve the company from the penalty imposed by the
law, thus negativing the presumption of violation. 2 Moreover, to
render the railroad liable, it must appear that the injury was due
to such failure to give statutory signals. 3 The mere giving of statu-
tory signals does not, however, in all cases relieve the company of
liability, as in the case of an injury caused by running a train at
a high rate of speed through a village; 4 and the question of rea-
17 Roth v. Depot Co., 13 Wash. 525, 43 Pac. 641; Mitchell v. Railroad Co.
(N. H.) 34 Atl. 674; Kansas City, Ft. S. & M. R. Co. v. Cook, 13 C. C. A.
364, 66 Fed. 115; Thomas v. Railway Co., 93 Iowa, 248, 61 N. W. 967.
134. i Cordell v. Railroad Co., 64 N. Y. 535; Chicago & E. I. R. Co. v.
Boggs, 101 Ind. 522; Pennsylvania R. Co. v. Ogier, 35 Pa. St. 60; Chicago &
N. E. Ry. Co. v. Miller, 46 Mich. 532, 9 N. W. 841; Prewitt v. Railway Co.,
134 Mo. 615, 36 S. W. 667; Gulf, C. & S. F. Ry. Co. v. Calvert, 11 Tex. Civ.
App. 297, 32 S. W. 246. Other courts have merely held that violation of the
statute was some evidence, but not conclusive, of negligence. Hanlon v.
Railroad Co., 129 Mass. 310; Lamb v. Railway Co. (Mo. Sup.) 48 S. W. 659;
Simons' Adm'r v. Railway Co., 96 Va. 152, 31 S. E. 7; Walsh v. Railroad Co.,
171 Mass. 52, 50 N. E. 453; Houston & T. C. R. Co. v. Rogers (Tex. Civ. App.)
39 S. W. 1112; Hunter v. Railway Co. (Mont.) 57 Pac. 140; Chicago, St. P.,
M. & O. Ry. Co. v. Brady, 51 Neb. 758, 71 N. W. 721; Missouri Pac. Ry. Co.
v. Geist, 49 Neb. 489, 68 N. W. 640.
2 Hanlon v. Railroad Co., 129 Mass. 310; Karle v. Railroad Co., 55 Mo. 476.
Atchison, T. & S. F. R. Co. v. Morgan, 31 Kan. 77, 1 Pac. 298; Chicago
& A. R. Co. v. Robinson, 106 111. 142; Chicago, B. & Q. R. Co. v. Harwood, 90
111. 425; Houston & T. C. R. Co. v. Nixon, 52 Tex. 19; Baltimore & O. S. W. Ry.
Co. v. Conoyer, 149 Ind. 524, 48 N. E. 352; Atlantic & D. Ry. Co. v. Rieger,
95 Va. 418, 28 S. E. 590.
* Thompson v. Railroad Co., 110 N. Y. 636, 17 N. E. 690; Zimmer v. Railroad
Co., 7 Hun (N. Y.) 552. In the following cases the statutory warning was held
sufficient: Lake Shore & M. S. R. Co. v. Elson, 15 111. App. 80; Chicago, B.
& Q. R. Co. v. Dougherty, 110 111. 521.
135) CAKE REQUIRED OF PERSONS. 329
sonableness and sufficiency of the signals used may be submitted
to the jury. And, where it appeared that plaintiff was familiar
with the custom of defendant to give warning of the approach of
trains, evidence was held admissible that at the time of the acci-
dent the custom was not followed. 5 In the absence of a statute
imposing upon the company the duty of giving certain signals on
approaching crossings, failure to give signals is not, per se, neg-
ligence, and in such cases it is for the jury to determine whether
the omission is negligent. 6 In the absence of any statute govern-
ing the giving of signals, the question of reasonableness and suffi-
ciency is for the jury. 7
SAME CARE REQUIRED OF PERSONS.
135. It is the duty of a traveler in proximity to or about
to cross a railroad track to use that degree of care
which a person of ordinary prudence -would exercise
in similar circumstances. This rule requires of one
about to cross a railroad that he should look and
listen, unless
(a) The company, through its servants or rules, relieves
him of the precaution by assurances of safety, or
(b) Local conditions, as the conformation of the land or
obstructions or other causes, render the precaution
useless, or unless
(c) By reason of some infirmity or incapacity of the
traveler the usual rule is abrogated or modified.
The duties of a person approaching a railroad track are in many
respects similar to those of the company. Neither the train nor
the person has an absolute right of way, regardless of the rights
of the other. Each must be governed by circumstances, and ob-
serve that degree of caution w r hich they require. When a collision
s Vandewater v . Railroad Co., 74 Hun, 32, 26 N. Y. Supp. 397. Defendant
aeld liable in such case even where plaintiff failed to exercise ordinary care.
Chicago, B. & Q. R. Co. v. Johnson, 53 111. App. 478.
e Sauerborn y. Railroad Co., 69 Huu, 429. 23 N. Y. Supp. 478.
7 Mitchell v. Railroad Co. (N. H.) 34 Atl. 074.
330 DANGEROUS INSTRUMENTALITIES. (Ch. 8
occurs without negligence on the part of either the company or the
traveler, neither will be heard to complain of the other. 1 It is
equally evident that where a collision results from the mutual fault
of both parties neither will have a right of action.
The way traveler should always exercise a degree of caution pro-
portioned to the danger, and this rule requires that on approach-
ing a railroad crossing he should look in both directions, and listen
for approaching trains. 2 And it is probably not going too far to
hold that in certain cases he should stop before going on the cross-
ing, 3 or even get down from his wagon, if driving, and approach
on foot, for purposes of a more careful survey. 4 The test is what
135. i Cosgrove v. Railroad Co., 13 Hun (N. Y.) 329; Rothe v. Railroad
Co., 21 Wis. 256; Evansville & C. R. Co. v. Lowdermilk, 15 Ind. 120.
2 Brown v. Railroad Co., 22 Minn. 165; Stackus v. Railroad Co., 7 Hun (N.
Y.) 559; Chicago & R. I. R. Co. v. McKean, 40 111. 218; Chicago, R. I. & P. R.
Co. v. Houston, 95 TJ. S. 697; Linfield v. Railroad Co., 10 Gush. (Mass.) 562;
Davis v. Railroad Co., 47 N. Y. 400; Weber v. Railroad Co., 58 N. Y. 451;
Louisville, N. A. & C. Ry. Co. v. Stephens, 13 Ind. App. 145, 40 N. B. 148;
Sprow v. Railroad Co., 163 Mass. 330, 39 N. E. 1024; Gulf, C. & S. F. Ry.
Co. v. Scott (Tex. Civ. App.) 27 S. W. 827; Philadelphia & R. R. Co. v. Peebles,
14 C. C. A. 555, 67 Fed. 591; Baltimore & O. R. Co. v. Griffith, 159 U. S.
603, 16 Sup. Ct. 105; Smith v. Railroad Co., 87 Me. 339, 32 Atl. 967; Vree-
land v. Railroad Co., 109 Mich. 585, 67 N. W. 905; Howe v. Railroad Co., 62
Minn. 71, 64 N. W. 102; Judson v. Railway Co., 63 Minn. 248, 65 N. W. 447;
struck by a closely following car (for jury), Bowen v. Railroad Co., 89 Him, 594,
35 N. Y. Supp. 540; Collins v. Railroad Co., 92 Hun, 563, 36 N. Y. Supp. 942;
Davidson v. Railroad Co., 171 Pa. St. 522, 33 Atl. 86; Martin v. Railroad Co.,
176 Pa. St. 444, 35 Atl. 183; Cleveland, C., C. & St. L. Ry. Co. v. Miller, 149
Ind. 90, 49 N. E. 445; Little Rock & F. S. Ry. Co. v. Blewett (Ark.) 45 S. W.
548; Chicago, B. & Q. R. Co. v. Thorson, 68 111. App. 288; Mayes v. Railroad
Co., 71 Mo. App. 140; Northern Pac. R. Co. v. Freeman, 174 U. S. 379, 19 Sup.
Ct. 763; Muscarro v. Railroad Co. (Pa. Sup.) 43 Atl. 527; Conkling v. Railroad
Co. (N. J. Err. & App.) 43 Atl. 666; Jencks v. Railroad Co., 33 App. Div. 635,
53 N. Y. Supp. 623; Atchison, T. & S. F. Ry. Co. v. Holland (Kan. Sup.) 56
Pac. 6.
s Pennsylvania Canal Co. v. Bentley, 66 Pa. St. 30; Wilds v. Railroad Co.,
29 N. Y. 315, 328; Nelson v. Railroad Co. (Minn.) 78 N. W. 1041; Ritzman v.
Railroad Co., 187 Pa. St. 337, 40 Atl. 975; Decker v. Railroad Co., 181 Pa. St.
465, 37 Atl. 570. But see Judson v. Railroad Co., 158 N. Y. 597, 53 N. E. 514.
Burden of proof, Steele v. Railway Co. (Wash.) 57 Pac. 820; Manley v. Canal
Co., 69 Vt. 101, 37 Atl. 279.
* Pennsylvania R. Co. v. Beale, 73 Pa. St. 504.
135) CARE REQUIRED OF PERSONS. 831
would be expected of a person of ordinary prudence in similar cir-
cumstances. 5
It not infrequently happens that a view of the track may be ob-
tained from some particular point only on the highway, more or less
remote from the crossing. In such case it is not conclusive of negli-
gence that the traveler did not look at the one open point of view,
but the question of negligence is for the jury to determine in the
circumstances. 6 It is otherwise if the view is, in general, open and
unobstructed for a short distance only, close to the track. 7 It is
not requisite that the person should take every possible precaution,
and it is error to charge that it is the duty of the person "to look
and listen at all points" on approaching a crossing. 8 In Bellefon-
taine Kailway Co. v. Hunter, 9 Eay, C. J., thus defines the mutual
duties of the traveler and the company: "In the case- before us
each party had a right of passage, limited by that maxim of equity,
'Sic utere tuo ut alienum non laedas.' Upon each rested the obliga-
tion, in the exercise of this right, to use such reasonable degree of
foresight, skill, capacity, and care as would be consistent with a
proper regard for the safety of all others exercising the same right
and using the like precautions. We do not say that such care must
be used by each as would prevent the possibility of injury to himself
or another. There are inevitable accidents. But such care is re-
quired as would reasonably, and under all ordinary circumstances,
avoid collision with one using like caution, such care as a prudent
man, in the exercise of his usual diligence, will observe. It is true
that prudent men are sometimes careless. When so, they must
accept the consequences of their departure from their usual line of
e McNown v. Railroad Co., 55 Mo. App. 585; Baker v. Railroad Co. (Mo.
Sup.) 48 S. W. 838.
Massoth v. Canal Co., 64 N. Y. 524. See, also, Pepper v. Southern Pac.
Co., 105 Cal. 389, 38 Pac. 974; Cleveland, C., C. & St. L. R. Co. v. Smith, 78
m. App. 429; White v. Southern Pac. Co. (Cal.) 54 Pac. 956; Central R. Co.
v. Smalley (N. J. Err. & App.) 39 Atl. 695; Tilton v. Railroad Co., 169 Mass.
253, 47 N. E. 998.
T Campbell's Adm'r v. Railroad Co. (Va.) 21 S. E. 480; Atchison, T. & S. F.
R. Co. v. Holland (Kan, Sup.) 56 Pac. 6; Stewart v. Railroad Co. (Mich.)
77 N. W. 643.
s Winey v. Railway Co.. 92 Iowa, 622, 61 N. W. 218*
33 Ind. 335, at page 305.
332 DANGEROUS INSTRUMENTALITIKS. (Ch. 8
conduct, and the exception is not to mark the amount of care exacted
by the law."
136. FAILURE TO GIVE SIGNALS Failure on the part
of the company to give customary or statutory
signals does not relieve a person approaching an
unobstructed crossing from the duty to look and
listen.
"Where a person knowingly about to cross a railroad track may
have an unobstructed view of the railroad, so as to know of the
approach of a train a sufficient time to clearly avoid any injury from
it, he cannot, as a matter of law, recover, although the railroad com-
pany may have been also negligent, or have neglected to perform
a statutory requirement." J This rule has been slightly modified
in a few carefully considered cases to the extent of holding, where
the railroad company fails to give statutory signals, one is not de-
barred from recovery by reason of being incautiously or imprudently
on the tracks, provided he keeps a proper lookout. 2 The great
136. i Artz v. Railroad Co., 34 Iowa, 153. See, also, Ernst v. Railroad
Co., 39 N. Y. 61; Baxter v. Railroad Co., 41 N. Y. 502; Nicholson v. Railway
Co., Id. 525; Morris & E. R. Co. v. Haslan, 33 N. J. Law, 147; Chicago & A.
R. Co. v. Fears, 53 111. 115; Toledo & W. Ry. Co. v. Goddard, 25 Ind. 185;
Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570; North Pennsylvania R.
Co. v. Heileman, 49 Pa. St. 60; Parker v. Adams, 12 Mete. (Mass.) 415;
Gangawer v. Railroad Co., 168 Pa. St. 265, 32 Atl. 21; Caldwell v. Railroad Co.,
58 Mo. App. 453; Johnson's Adm'r v. Railway Co., 91 Va. 171, 21 S. E. 238;
Conkling v. Railroad Co. (N. J. Err. & App.) 43 Atl. 666; Baker v. Rail-
road Co. (Mo. Sup.) 48 S. W. 838; Blackburn v. Pacific Co. (Or.) 55 Pac. 225;
Walsh v. Railroad Co., 171 Mass. 52, 50 N. E. 453; Gulf, C. & S. V. Ry. Co. v.
Hamilton (Tex. Civ. App.) 42 S. W. 358; Rangeley's Adm'r v. Railway Co.,
95 Va. 715, 30 S. E. 386; Severy v. Railway Co., 6 Okl. 153, 50 Pac. 162; Schnei-
der v. Railway Co., 99 Wis. 378. 75 N. W. 169; Mesic v. Railroad Co., 120 N. C.
489, 26 S. E. 633. Traveler cannot rely solely on custom to have flagman at
crossing. Smith v. Railroad Co., 141 Ind. 92, 40 N. E. 270.
2 Baltimore & O. R. Co. v. State, 33 Md. 542. And see Cliff v. Railroad
Co., L. R. 5 Q. B. 258; Baltimore & O. S. W. Ry. Co. v. Conoyer, 149 Ind. 524,
48 N. E. 352. The extreme opposite view holds it to be negligence per se to
go on the track in front of an approaching train, notwithstanding precautions
of stopping, looking, and listening. Sheehan v. Railroad Co., 166 Pa. St. 354,
31 Atl. 120.
137) ASSURANCE OF SAFETY BY AGENTS. 333
weight of American authority is, however, opposed to even this
slight modification of the rule. Yet the rule as laid down is not
absolutely inflexible, being governed to some extent by circum-
stances; as if a person actuated by fright, and to escape from a
runaway team, should, without preliminary caution, run upon the
tracks. 3 And if one, having w T ith due caution come upon a cross-
ing where the tracks are numerous, is confused by the smoke and
noise of passing trains, and is injured by a train coming from an
opposite direction, and which he failed to observe, although he
might have done so had he looked, the question of his negligence
may be submitted to the jury. 4
137. ASSURANCE OF SAFETY BY AGENTS If the pos-
itive acts or omissions of the agents of the company
are such as -would lead an ordinarily prudent person
to believe that a safe crossing was afforded, the
traveler may be justified in omitting some or all of
the ordinary precautions. 1
Thus, where defendant's flagman, stationed at a crossing, signaled
to plaintiff to cross, and he did so, looking straight ahead, and
was injured by an approaching train, it was held that he could re-
cover. 2 So, also, where a tacit assurance of safety was extended
to plaintiff by leaving the gate open. 3 And where plaintiff at-
tempted to cross on seeing the gate raised, and was injured, al-
though he might have seen the train, the court said: "The raising
Moore v. Railroad Co., 47 Iowa, 688; Pratt v. Railway Co., 107 Iowa, 287,
77 X. W. 1064.
* Greany v. Railroad Co., 101 N. Y. 419, 5 N. E. 425; Haycroft v. Railroad
Co., 64 N. Y. 636. But see Purdy v. Railroad Co., 87 Hun, 97, 33 N. Y.
Supp. 952.
137. i Chaffee v. Railroad Corp., 104 Mass. 108; Wheelock v. Railroad
Co., 105 Mass. 203; Clark v. Railroad Co., 164 Mass. 434, 41 N. E. 666;
Steel v. Railway Co., 107 Mich. 516, 65 N. W. 573; Waldele v. Railroad Co.,
4 App. Div. 549, 38 N. Y. Supp. 1009; Chicago & A. R. Co. v. Blaul, 70 111.
App. 518.
2 Sweeny v. Railroad Co., 10 Allen (Mass.) 368.
a Palmer v. Railroad Co., 112 N. Y. 234, 19 N. E. 678; Oldenburg v. Railroad
Co., 124 N. Y. 414, 26 X. E. 1021; Walsh v. Railroad Co., 171 Mass. 52, 50
N. E. 453; Chicago & A, R. Co. v. Redmond, 70 111. App. 119.
334 DANGEROUS INSTRUMENTALITIES. (Ch. 8
of the gate was substantial assurance to him of safety, just as sig-
nificant as if the gateman had beckoned to him, or invited him to
come on, and that any prudent man would not be influenced by it
is against all human experience. The conduct of the gateman can-
not be ignored in passing upon plaintiff's conduct, and it was prop-
erly to be considered by the jury with all the other circumstances
of the case." *
138. OBSTRUCTED VIEW If the view of one approach-
ing a crossing in a vehicle is obstructed by natural
or artificial causes, he is not necessarily negligent
if he does not alight, and go forward on foot, to
determine the safety of the crossing. 1
And where, in similar circumstances, he approaches the crossing
on foot, it is not per se negligence if he does not stop, but is for the
jury. 2 The rule of ordinary care is in no degree abated by these
decisions, but is rather exemplified. When obstructions intercept
the view, the danger is increased, and the traveler should approach
with increased caution. If he cannot see, he should listen the more
intently. 8 And, if the conditions are such that he can neither see
* Glushing v. Sharp, 96 N. Y. 676. See, also, Lindeman v. Railroad Co., 42
Hun (N. Y.) 306. Per contra, Denver & R. G. R. Co. v. Gustafson, 21 Colo. 393,
41 Pac. 505. Plaintiff, at the invitation of agent, attempted to cross at a
dangeroiis place. Warren v. Railroad Co., 8 Allen (Mass.) 227. But compare
Hickey v. Railroad Co., 14 Allen (Mass.) 429, where permission to do a negli-
gent act is distinguished from an invitation. An invitation to cross by a
flagman or other agent does not, however, entirely relieve the traveler from
the duty of ordinary care, and it cannot be held, as matter of law, that one
acting on such an invitation is, ipso facto, free from negligence. Chicago, B.
& Q. R. Co. v. Spring, 13 111. App. 174.
138. i Mackay v. Railroad Co., 35 N. Y. 75; Dolan v. Canal Co., 71 N. Y.
285; Kellogg v. Railroad Co., 79 N. Y. 72; Southern Ry. Co. v. Prather (Ala.)
24 South. 836; Houston & T. C. R. Co. v. Pereira (Tex. Civ. App.) 45 S. W.
767.
2 Link v. Railroad Co., 165 Pa. St. 75. 30 Atl. 820; Northern Pac. R. Co. v.
Austin, 12 C. C. A. 97, 64 Fed. 211; Lake Shore & M. S. Ry. Co. v. Anthony,
12 Ind. App. 126, 38 N. E. 831; Hubbard v. Railroad Co., 162 Mass. 132, 38
N. E. 366; Whalen v. Railroad Co., 58 Hun, 431, 12 N. Y. Supp. 527, distin-
guishing Kellogg v. Railroad Co., 79 N. Y. 72.
a Hoffmann v. Railroad Co., 67 Hun, 581, 22 N. Y. Supp. 463; Beisiegel v.
138) OBSTRUCTED VIEW. 335
nor hear, ordinary care requires that he should stop, and it is neg-
ligence not to do so. 4
Where a crossing is obstructed for an unreasonable length of
time by cars standing on the track, there is good authority for hold-
ing that it is not negligence for the foot traveler to pass over the
cars, 5 or between them if separated; 6 but, in any event, he must use
ordinary care, and not needlessly incur danger, as when one at-
tempted to cross between two cars by putting a foot on either side
of the pin head, w r here they would necessarily be caught if the train
moved. 7 Other courts have held that any attempt to cross by pass-
ing between or over the cars is negligence which will prevent a re-
covery. 8
It is not quite clear why a person about to cross a railroad should
be permitted to relax his vigilance in any degree by reason of the
fact that a train has just passed, yet some decisions embody this
holding. 8
Railroad Co., 34 N. Y. 622; Chicago, R. I. & P. Ry. Co. v. Williams, 59 Kan.
700, 54 Pac. 1047; Stewart v. Railroad Co. (Mich.) 77 N. W. 643; Keppleman
v. Railway Co. (Pa. Sup.) 42 Atl. 697; Central R. Go. of New Jersey v. Smalley
(N. J. Err. & App.) 39 Atl. 695. Attempt not negligence when view obstructed
by smoke of train which has just passed. Chicago & N. W. Ry. Co. v. Hansen,
106 111. 623, 46 N. E. 1071. Contra, Manley v. Railroad Co., 18 App. Div. 420,
45 N. Y. Supp. 1108; Hoveuden v. Railroad Co., ISO Pa. St. 244, 36 Atl. 731.
Where plaintiff heard whistle, but drove on, hoping to cross in time, he could
not recover. Pennsylvania Co. v. Morel, 40 Ohio St. 338.
* Flemming v. Railroad Co., 49 Cal. 253, where the rattling of plaintiff's
wagon prevented his hearing and the dust prevented seeing.
sRauch v. Lloyd, 31 Pa. St. 358; Phillips v. Railroad Co., 80 Hun, 404,
30 N. Y. Supp. 333; Weber v. Railroad Co., 54 Kan. 389, 38 Pac. 569; San
Antonio & A. P. Ry. Co. v. Bergsland, 12 Tex. Civ. App. 97, 34 S. W. 155.
6 Baltimore & O. R. Co. v. Fitzpatrick, 35 Md. 32. But see Lewis v. Railroad
Co., 38 Md. 588; Mahar v. Railway Co., 19 Hun (N. Y.) 32; Lake Erie & W.
R. Co. v. Mackey, 53 Ohio St. 370, 41 N. E. 980.
T Hudson v. Railway Co., 123 Mo. 445, 27 S. W. 717.
s Stillson v. Railroad Co., 67 Mo. 071; Gahagan v. Railroad Co., 1 Allen
(Mass.) 187; O'Mara v. Canal Co., 18 Hun (N. Y.) 192. But see Phillips v.
Railroad Co., 80 Hun, 404, 30 X. Y. Supp. 333. Traveler held negligent in
climbing over bumpers, although using great care. Magoon v. Railroad Co., 67
Vt 177, 31 Atl. 150; Wherry v. Railway Co., 64 Minn. 415, 67 N. W. 223.
Greany v. Railroad Co., 101 N. Y. 419, 5 N. E. 425; McXamara v. Railroad
Co., 136 X. Y. 650, 32 N. E. 075; Xorthrup v. Railway Co., 37 Hun (X. Y.)
295; Beckwith v. Railroad Co., 54 Hun, 446, 7 N. Y. Supp. 719, 721; Gray v.
336 DANGEROUS INSTRUMENTALITIES. (Ch. 8
139. INFIRM TRAVELERS Although the exercise of or-
dinary care is required of those -who are physically
infirm by reason of age or other-wise, yet the stand-
ard by -which that degree of care must be measured
is somewhat relaxed, and must conform to -what
would reasonably be expected from persons of that
particular age or physical condition. 1
"The old, the lame, and infirm are entitled to the use of the
streets, and more care must be exercised towards them by engineers
than towards those who have better powers of motion. The young
are entitled to the same rights, and cannot be required to exercise
as great foresight and vigilance as those of maturer years." 2 But
those persons who are afflicted with deafness, 3 or imperfect vision, 4
being aware of their infirmities, should take added precautions in
approaching places of unusual danger, such as railroad crossings.
Railroad Co., 172 Pa. St. 383, 33 Atl. 697; Bowen v. Railroad Co., 89 Hun,
594, 35 N. Y. Supp. 540; Baker v. Railroad Co. (Mo. Sup.) 48 S. W. 838; Pin-
ney v. Railway Co., 71 Mo. App. 577.
139. i Elkins v. Railroad Co., 115 Mass. 190; Costello v. Railroad Co., 65
Barb. (N. Y.) 92; Philadelphia & R. R. Co. v. Spearen, 47 Pa. St. 300; Chicago
& A. R. Co. v. Becker, 84 111. 483; McGovern v. Railroad Co., 67 N. Y. 417;
Paducah & M. R. Co. v. Hoehl, 12 Bush vKy.) 41; Haas v. Railroad Co., 41
Wis. 44; deafness, New York, N. H. & H. R. Co. v. Blessing, 14 C. C. A. 394,
67 Fed. 277.
2 O'Mara v. Railroad Co., 38 N. Y. 445; Allen v. Railway Co., 106 Iowa, 602,
76 N. W. 848; Chicago, R. I. & P. Ry. Co. v. Ohlsson, 70 111. App. 487; Smeltz
v. Railroad Co., 186 Pa. St 364, 40 Atl. 479; Atchison, T. & S. F. R. Co. v.
Cross, 58 Kan. 424, 49 Pac. 599; Cariner v. Railway Co., 95 Wis. 513, 70 N.
W. 560.
s Illinois Cent. R. Co. v. Buckner, 28 111. 299; Cleveland, C. & C. R. Co. v.
Terry, 8 Ohio St. 570; Ormsbee v. Railroad Corp., 14 R. I. 102; Central R. Co.
v. Feller, 84 Pa. St. 226; Chicago, R. I. & P. Ry. Co. v. Pounds, 27 C. C. A.
112, 82 Fed. 217; Phillips v. Railway Co., Ill Mich. 274, 69 N. W. 496.
* Peach v. City of Utica, 10 Hun (N. Y.) 477; Sleeper v. Sandown, 52 N. H.
244; Davenport v. Ruckman, 37 N. Y. 568; Winn v. City of Lowell, 1 Allen
(Mass.) 177.
140) CONTRIBUTORY NEGLIGKNCE. 337
140. CONTRIBUTORY NEGLIGENCE Failure of the
traveler to use ordinary care, within the foregoing
definition, -when approaching a railroad crossing,
or otherwise coining into proximity with railroad
tracks, constitutes contributory negligence which
will prevent a recovery, provided the omission was
the proximate cause of the injury. 1
When it appears that, in the existing conditions, the ordinary
precautions, such as looking and listening, would have been use-
less, their omission is not negligence which will prejudice plaintiff's
right to recover. 2 Thus, where two trains were approaching one
another at a crossing, the one carrying a headlight, and making
much noise, and the other approaching in comparative quiet, without
any light, and the traveler was struck and killed by the latter, it
was held that, as it would have been useless for deceased to have
140. i Duvall v. Railroad Co., 105 Mich. 386, 63 N. W. 437; Smith v.
Railroad Co., 141 Ind. 92, 40 X. E. 270; Bates v. Railroad Co., 84 Hun, 287, 32
X. Y. Supp. 337; eveii if railroad is also negligent, Louisville, N. A. & C. Ry.
Co. v. Stephens, 13 Ind. App. 145, 40 N. E. 148; and he cannot recover even if
the crossing is improperly constructed, Tobias v. Railroad Co., 103 Mich. 330,
ill X. W. 514. See, also, Sheehan v. Railroad Co., 166 Pa, St. 354, 31 Atl. 120;
Miller v. Railroad Co., 81 Hun, 152, 30 N. Y. Supp. 751; Xelson v. Railroad
Co., 88 Wis. 392, 60 X. W. 703. In the following cases the question was held
properly submitted to the jury: Link v. Railroad Co., 165 Pa. St. 75, 30 Atl.
820; Connerton v. Canal Co., 168 Pa. St. 339, 32 Atl. 416; Wilcox v. Railroad
Co., 88 Hun, 263, 34 X. Y. Supp. 744; Crosby v. Railroad Co., 88 Hun, 196,
34 X. Y. Supp. 714; New York, X. H. & H. R. Co. v. Blessing, 14 C. C.
A. 394, 67 Fed. 277; Miles v. Railroad Co., 86 Hn, 508, 33 N. Y. Supp.
729; Meddaugh v. Railway Co., 86 Hun, 620, 33 X. Y. Supp. 793; Cincinnati,
X. O. & T. P. Ry. Co. v. Farra, 13 C. C. A. 602, 66 Fed. 496; Smith v. Railroad
Co. (Ky.) 30 S. W. 209; Lake Shore & M. S. Ry. Co. v. Anthony, 12 Ind. App.
12C, 38 X. E. 831; Hubbard v. Railroad Co., 162 Mass. 132, 38 X. E. 366;
Struck v. Railway Co., 58 Minn. 298, 59 N. W. 1022; Lynch v. Railroad Co., 16
C. C. A. 151, 69 Fed. 86; Howe v. Railroad Co., 62 Minn. 71, 64 X. W. 102.
2 Struck v. Railway Co., 58 Minn. 298, 59 N. W. 1022; Texas & P. Ry. Co.
v. Xeill (Tex. Civ. App.) 30 S. W. 369; Smedis v. Railroad Co., 88 N. Y. 13;
Judson v. Railway Co., 63 Minn. 248, 65 X. W. 447; Philadelphia & R. R. Co.
v. Peebles, 14 C. C. A. 555, 67 Fed. 591; Derk v. Railway Co., 164 Pa. St. 243,
30 Atl. 231; Reeves v. Railroad Co., 92 Iowa, 32, 60 X. W. 243; Jensen v.
Railroad Co., 102 Mich. 176, 60 X. W. 57; Pepper v. Railroad Co., 105 Gal. 389,
38 Pac. 974; Sprow v. Railroad Co., 163 Mass. 330, 39 X. E. 1024.
BAR.XEG. 22
338 DANGEROUS INSTRUMENTALITIES. , (Cll. 8
looked and listened for the latter train, his attention being pre-
sumptively engrossed with the former, his omission to do so was
immaterial, and therefore no assumption to that effect could be
based on the evidence. 8
Effect on Statutory Liability.
Where the failure of railroad companies is, by statute, made neg-
ligence per se, the right of recovery by the traveler, notwithstand-
ing contributory negligence, is not thereby changed.* Statutes of
this kind have the effect merely of establishing in certain cases the
negligence of the railroad, 5 but they cannot be construed to relieve
the traveler of the duty of exercising ordinary care. 8
Contributory Negligence not Conclusive against Plaintiff.
Neither is the fact of plaintiff's contributory negligence conclu-
sive against his right to recover in all cases. 7 If the plaintiff's own
negligence exposes him to injury, he may yet recover if defendant's
failure to use ordinary care, after discovering his danger, was the
Smedis v. Railroad Co., 88 N. Y. 13.
* Daseomb v. Railroad Co., 27 Barb. (N. Y.) 221; Chicago, R. I. & P. Ry.
Co. v. Kennedy, 2 Kan. App. 693, 43 Pac. 802; Central Texas & N. W. Ry.
Co. v. Nycum (Tex. Civ. App.) 34 S. W. 460; Miller v. Railroad Co., 144 Ind.
323, 43 N. E. 257; Judson v. Radlway Co., 63 Minn. 248, 65 N. W. 447; Collins
v. Railroad Co., 92 Hun, 563, 36 X. Y. Supp. 942; Steinhofel v. Railway Co., 92
Wis. 123, 65 N. W. 852; Alabama G. S. R. Co. v. Anderson, 109 Ala. 299, 19
South. 516. But see Lloyd v. Railway Co., 128 Mo. 595, 29 S. W. 153, and 31
S. W. 110.
s Shirk v. Railroad Co., 14 Ind. App. 126, 42 N. E. 656; Pittsburg, C., C.
& St. L. Ry. Co. v. Shaw, 15 Ind. App. 173, 43 N. E. 957; Texas & P. Ry. Co.
r. Brown, 11 Tex. Civ. App. 503, 33 S. W. 146; Chicago, M. & St. P. R. Co. v.
Walsh, 157 111. 672, 41 N. E. 900.
6 Baltimore & O. R. Co. v. Talmage, 15 Ind. App. 203, 43 N. E. 1019; Collins
v. Railroad Co., 92 Hun, 563, 36 N. Y. Supp. 942; Texas & P. Ry. Co. v. Cody,
166 U. S. 606, 17 Sup. Ct. 703; Comer v. Shaw, 98 Ga, 543, 25 S. E. 733; Pay lie
v. Railroad Co., 136 Mo. 502. 38 S. W. 308.
T Davies v. Mann, 10 Mees. & W. 546; Green v. Railroad Co., 11 Hun (N. Y.)
333; Cleveland. C., C. & I. R. Co. v. Elliott, 28 Ohio St. 340; Trow v. Rail-
road Co., 24 Vt. 487; Isbell v. Railroad Co., 27 Conn. 393; Lovett v. Salern &
S. D. R. Co., 9 Allen (Mass.) 557; Underwood v. Waldron, 33 Mich. 232; Lane
v. Atlantic Works, 107 Mass. 104; Illinois Cent R. Co. v. Hoffman. 67 111. 287;
Donaldson v. Railroad Co., 21 Minn. 293; Kuhn v. Railroad Co., 42 Iowa, 420;
Wright v. Brown, 4 Ind. 95; Tuff v. Warman, 5 C. B. (N. S.) 573.
140) CONTRIBUTORY NEGLIGENCE. 339
proximate cause of the injury. 8 Thus, where one was walking be-
tween the double tracks of a railroad, with an umbrella over her
head, and was visible at a long distance, and those in charge of the
train made no effort to avoid injury after they saw her peril, the
case was for the jury. 9 In an earlier case the court said: "Though
the deceased may have incautiously gotten upon the track of de-
fendant's road, yet, if he could not, at the time of the collision, by^
the exercise of ordinary care, have avoided the consequences of the
defendant's negligence, assuming that there were such, the right to-
recover exists. 10
Presumptions.
It by no means follows as a presumption that the omission of
that which is beneficial in its object is harmful. Thus, an engineer
may, contrary to custom and the dictates of prudence, fail to ring;
the bell on approaching a crossing, but the traveler may, neverthe-
less, have been fully warned in other ways of the approach of the
train, and in such case the company could not be held responsible
for the failure to give the customary signals. 11 On the other hand,
in certain circumstances, there is a presumption that, had the cus-
tomary or proper signal been given, its warning would have been
heeded, and the injury avoided. "The very object of requiring the
engineer to sound an alarm before reaching the crossing is to put
the way traveler on his guard, and when the engineer neglects the-
necessary signals he deprives the traveler of one of the means
upon which he has a right to rely for protection against the danger
Chamberlain v. Railway Co., 133 Mo. Sup. 587, 33 S. W. 437, and 34 S. W.
842; Pickett v. Railroad Co., 117 X. C. 616, 23 S. E. 264; Chaffee v. Railroad
Co. (R. I.) 35 Atl. 47; Comer v. Barfield, 102 Ga. 485, 31 S. E. 89; Texas Mid-
land R. Co. v. Tidwell (Tex. Civ. App.) 49 S. W. 641; Baltimore & O. R. Co. v.
Anderson, 29 C. C. A. 235, 87 Fed. 413; Norton v. Railroad Co., 122 N. C.
910, 29 S. E. 886; Pittsburg, C., C. & St. L. Ry. Co. v. Lewis (Ky.) 38 S. W.
482; Western Maryland R. Co. v. Kehoe, 86 Md. 43, 37 Atl. 799; Dlauhi v. Rail-
way Co., 139 Mo. 291, 40 S. W. 890; Baltimore & O. R. Co. V. Few's Ex'rs,
94 Va. 82, 26 S. E. 406.
Kreis v. Railway Co., 131 Mo. 533, 33 S. W. 64.
10 Northern Cent. Ry. Co. v. State, 29 Md. 420.
11 Dascomb v. Railroad Co., 27 Barb. (N. Y.) 221; Steves v. Railroad Co.,
18 N. Y. 422. Knowledge of danger. Douglas v. Railway Co., 100 Wis. 405,
76 N. W. 356.
340 DANGEROUS INSTRUMENTALITIES. (Ch. 8
of collision." 12 But the burden of proving that the injury resulted
from the failure to give the signal has been held to be on the plain-
tiff. 13 Where there are no obstructions to the view, and the in-
jured person was of good eyesight, it is a warranted presumption
that he did not look and listen. 14 And, where no negligence is
shown on the part of the railroad company, no presumption will be
raised that the deceased took ordinary precautions to avoid the
accident. 15 But, in the absence of any evidence to the contrary,
there is generally a presumption that a person approaching a dan-
gerous place exercised ordinary care. 16 When the traveler has a
fair view of the train, and the usual or statutory signals are made
to give warning of its approach, the company's servants have gener-
ally the right to presume that they will be observed. 17
SAME COLLISION WITH ANIMALS.
141. Where the common law regarding fences is in force,
cattle running at large and coming upon railroad
property are trespassers, and the company is not
responsible for their injury, 1 unless
12 Beisiegel v. Railroad Co., 34 N. Y. 622. Presumption of safety of crossing
from absence of flagman. Martin v. Railroad Co. (Del. Super.) 42 Atl. 442;
Chicago & A. R. Co. v. Blaul, 175 111. 183, 51 N. E. 895.
is Galena & C. TL R. Co. v. Loomis, 13 111. 548.
i* Kelsay v. Railway Co., 129 Mo. Sup. 362, 30 S. W. 339; Tobias v. Rail-
way Co., 103 Mich. 330, 61 fc. W. 514; Seamans v. Railroad Co., 174 Pa. St.
421, 34 Atl. 568; Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125;
Lesan v. Railroad Co., 77 Me. 85; Wilcox v. Railroad Co., 39 N. Y. 358.
isLivermore v. Railroad Co., 163 Mass. 132, 39 N. E. 789. Per contra,
Chicago, R. I. & P. Ry. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993; Reynolds
v. Railroad Co., 58 N. Y. 248.
is Huntress v. Railroad Co., 66 N. H. 185, 34 Atl. 154; Haverstick v. Rail-
road Co., 171 Pa. St. 101, 32 Atl. 1128; Missouri Pac. Ry. Co. v. Moffatt
(Kan. Sup.) 55 Pac. 837; Louisville & N. R. Co. v. Clark's Adm'r (Ky.) 49 S.
W. 323; Chesapeake & O. Ry. Co. v. Steele, 29 C. C. A. 81, 84 Fed. 93;
Houston & T. C. R. Co. v. Laskowski (Tex. Civ. App.) 47 S. W. 59.
IT St. Louis, A. & T. H. R. Co. v. Manly, 58 111. 300; Chicago. B. & Q.
R. Co. v. Harwood, 80 111. 88; Chicago, B. & Q. R. Co. v. Damerell, 81 111.
450.
141. i Munger v. Railroad Co., 4 N. Y. 349; Cot-win v. Railroad Co.,
13 N. Y. 42; Pittsburgh, C. & St. L. Ry. Co. v. Stuart, 71 Ind. 500; Vauhoru
141) COLLISION WITH ANIMALS. 341
(a) The injury is caused by the willful or wanton act of
the company, or unless
(b) The injury is due to the failure of the company to
use ordinary care after discovering the presence
of the cattle on the track.
Under the common law there was no obligation resting upon
landowners to so fence or guard their property that cattle could
not enter upon it, but, on the contrary, the owners of cattle were
required to keep them from straying off their lands. 2 In those
states, therefore, which have retained this feature of the common
law. 3 cattle become trespassers when they go upon the property of
a railroad,* and it is immaterial whether it happens through the
negligence of their owners or not, 5 provided it does not occur
through the negligent or wrongful act of the company, such as
breaking dow y n the fence which inclosed them. In such an event
the railroad would, of course, be liable if they escaped through the
breach thus made, and wandered upon the track, and were injured.
But even those states which still adhere to the common law regard-
ing fences in general have, in many instances, indirectly modified
it by statutory enactments requiring railroads to fence their right
of way or tracks. Subject to the modifications hereinafter made,
however, the proposition holds good that, where cattle are tres-
passers upon railroad property, the company is not responsible for
their injury. 7
v. Railway Co., 63 Iowa, G7, 18 N. W. 679; Eames v. Railroad Co., 98 Mass.
560; Maynard v. Railroad Co., 115 Mass. 458; Pittsburgh, Ft W. & C.
Ry. Co. v. Methven, 21 Ohio St. 586; Moser v. Railroad Co., 42 Minn. 480,
44 N. W. 530; New York & E. R. Co. v. Skinner, 19 Pa. St 298; Johnson
v. Railway Co., 43 Minn. 207, 45 N. W. 152; North Pennsylvania R. Co. v.
Rehman, 49 Pa. St. 101.
2 Wiseman v. Booker, 3 C. P. Div. 184; Dawson v. Railroad Co., L. R,
8 Exch. 8; Buxton v. Railroad Co., L. R. 3 Q. B. 549; Manchester, S. & L,.
R. Co. v. Wallis, 14 C. B. 213.
s Wright v. Railroad Co., IS Ind. 168.
* Munger v. Railroad Co., 4 N. Y. 349, affirmed in 5 Denio (N. Y.) 255.
s North Pennsylvania R. Co. v. Rehman, 49 Pa. St. 101; Munger v. Rail-
road Co., 4 N. Y. 349, affirmed in 5 Denio (N. Y.) 255; Corwin v. Railroad Co.,
13 N. Y. 42; Spinner v. Railroad Co., 67 N. Y. 153.
e Wright v. Railroad Co., 18 Ind. 168.
7 See cases cited under section 141, note 1, supra.
342 DANGEROUS INSTRUMENTALITIES. (Cll. 8
142. WANTON OR WILLFUL INJURY In no event is
the railroad justified in wantonly or willfully in-
juring animals upon its right of way.
The foregoing rule is evidently subject to the modification which
governs all branches of negligence that one may not intentionally
or wantonly inflict injury on another or on his property; hence
there are few, if any, states where a railroad is not liable for in-
juries wantonly or willfully inflicted, even on trespassing animals. 1
And the weight of authority holds that, if the engineer could have
escaped the collision by the exercise of that degree of care and
diligence which an ordinarily prudent person of his vocation would
use in similar circumstances, the company cannot avoid liability
on the ground that the cattle were trespassers. 2 And, if the com-
pany exercises ordinary care after a timely discovery of the ani-
mals on the track, it is not, in the absence of special statute, liable
for their injuries. 3 What is ordinary care in the circumstances is
nearly always a question for the jury, and the mere fact that the
engineer did not take some particular precaution such as slacken-
ing the speed of the train on discovering the animals on the track
is not necessarily negligence.* In some states, however, espe-
cially in the Eastern, the interpretation that is given to "ordinary
care" is so broad that railroad companies have been practically re-
142. i Missouri, K. & T. Ry. Co. v. Meithvein (Tex. Civ. App.) 33 S. W.
1093; Magilton v. Railroad Co., S2 Hun, 308, 31 N. Y. Supp. 241.
2 Eames v. Railroad Co., 08 Mass. 560; Toledo, P. & W. R. Co. v. Bray,
57 111. 514; Perkins v. Railroad Co., 29 Me. 307; Towns v. Railroad Co.,
.21 N. H. 364; Locke v. Railroad Co., 15 Minn. 351 (Gil. 283); Parker v. Rail-
road Co., 34 Iowa, 399; Louisville & N. R. Co. v. Wainscott, 3 Bush (Ky.)
149; Cincinnati & Z. R. Co. v. Smith, 22 Ohio St. 227; Needham v. Railroad
Co., 37 Cal. 409; Bemis v. Railroad Co., 42 Vt 375; Isbell v. Railroad Co.,
27 Conn. 393; Pearson v. Railroad Co., 45 Iowa, 497; Chicago & N. W. R.
Co. v. Barrie, 55 111. 226; Omaha & R. V. Ry. Co. v. Wright, 47 Xeb. 886,
<66 N. W. 842; Lake Erie & W. R. Co. v. Norris, 60 Dl. App. 112.
s Barnhart v. Railway Co., 97 Iowa, 654, 66 N. W. 902; McGhee v. Gaines,
98 Ky. 182, 32 S. W. 602; Lovejoy v. Railway Co., 41 W. Va. 693, 24 S.
E. 599.
* Warren v. Railway Co., 59 Mo. App. 367, 1 Mo. App. Rep'r, 37; Scott
v. Railroad Co., 72 Miss. 37, 16 South. 205; Granby v. Railroad Co., 104
Mich. 403, 62 N. W. 579.
143) CARE AFTER DISCOVERY. 343
lieved of responsibility for all injuries to trespassing animals, 8 while
others hold squarely that, when animals are wrongfully on the track,
and the company has neglected no duty imposed by statute, it need
not exercise usual or ordinary care to avoid injuring them. 8 A
few states have held that, if the stock escape without fault on the
owner's part, as by the negligence of an adjoining owner, and
stray onto the track, and are injured, the company must show itself
free from negligence in order to escape liability. 1
143. CARE AFTER DISCOVERY Even if animals are
wrongfully on the track, it is the duty of the rail-
road company, after discovering them, to use ordi-
nary care to avoid doing them injury.
It is a generally accepted rule in nearly all states, whether cattle
be lawfully on the track or not, that, after they are seen, or, in the
exercise of ordinary care, should be seen, by those in charge of the
train, ordinary care and diligence should be observed to prevent
injuring them. 1 It should be observed in this connection, however,
e Darling -v. Railroad Co., 121 Mass. 118; Maynard v. Railroad Co., 115
Mass. 458; Boyle v. Railroad Co., 39 Hun (N. Y.) 171; Price v. Railroad
Co., 31 N. J. Law, 229; McCandless v. Railroad Co., 45 Wis. 365; Delta
Electric Co. v. Whitcamp, 58 111. App. 141.
e Simmons v. Railway Co., 2 App. Div. 117, 37 N. Y. 532.
7 Marietta & C. R. Co. v. Stephenson, 24 Ohio St. 48; Bulkley v. Railroad
Co., 27 Conn. 479; Moriarty v. Railway Co., 64 Iowa, 696, 21 N. W. 143;
Pearson v. Railroad Co., 45 Iowa, 497; Doran v. Raihvay Co., 73 Iowa, 115,
34 N. W. 619; Trout v. Railroad Co., 23 Grat. (Va.) 619.
143. i Lafayette & I. R. Co. v. Shriner, 6 Ind. 141; Illinois Cent. R,
Co. v. Phelps, 29 111. 447; Cincinnati & Z. R. Co. v. Smith, 22 Ohio St.
227; Jackson v. Railroad Co., 25 Vt 150; Pritchard v. Railroad Co., 7 Wis.
232; Isbell v. Railroad Co., 27 Conn. 393; Williams v. Railroad Co., 2 Mich.
239; Bowman v. Railroad Co., 37 Barb. (N. Y.) 516; Delta Electric Co. v.
White-amp, 58 111. App. 141; Omaha & R, V. Ry. Co. v. Wright, 47 Neb.
886, 66 N. W. 842; St Louis, A. & T. H. R. Co. v. Stapp, 53 111. App. 600;
Warren v. Railway Co., 59 Mo. App. 367, 1 Mo. App. Rep'r, 37; Denver
& R. G. R. Co. v. Nye, 9 Colo. App. 94, 47 Pac. 654; Mooers v. Railroad Co.,
69 Minn. 90, 71 N. W. 905; Chicago & N. W. Ry. Co. v. Smedley, 65 111. App.
644; Beattyville & C. G. R. Co. v. Maloney (Ky.) 49 S. W. 545; Louisville
& N. R. Co. v. Brinckerhoff (Ala.) 24 South. 892.
344 DANGEROUS INSTRUMENTALITIES. (Ch. 8
that the primary duty of the railroad is to care for the safety of its
passengers, and in those cases where cattle are not observed until
it is too late to stop the train, and a collision appears unavoidable,
it may be justifiable to increase, rather than diminish, the speed
of the train, as the latter course might result in its derailment. 2
There is a difference of opinion as to what degree of diligence
satisfies the requirement of ordinary care in looking out for and
seeing trespassing cattle. 3 In some states it is held that those in
charge of the train should use greater diligence in this regard when
the probability of meeting straying cattle is great,* and that they
are bound to see cattle when the view is unobstructed for a consid-
erable distance, and the cattle do not jump suddenly onto the track. 5
It would seem that no reasonable objection could be raised to the
rule last stated, and, since ordinary care for the safety of the train
requires a vigilant outlook for obstacles on the track, it is difficult
to understand why, in all cases, those in charge of the train should
not be held bound to see cattle upon the track, whose presence was
discoverable in the exercise of ordinary care.
2 Cleveland v. Railroad Co., 35 Iowa, 220; Owens v. Railroad Co., 58
Mo. 386; O'Connor v. Railroad Co., 27 Minn. 166, 6 N. W. 481; Parker v.
Railroad Co., 34 Iowa, 399; Bellefontaine & I. R. Co. v. Schruyliart, 10 Ohio
St. 116; Eemis v. Railroad Co., 42 Vt. 375; Louisville & A. R. Co. v. Bal-
lard, 2 Mete. (Ky.) 177; East Tennessee, V. & G. R. Co. v. Selcer, 7 Lea
(Tenn.) 557.
s Chicago & N. W. R. Co. v. Barrie, 55 111. 226; Jones v. Railroad Co.. 70
N. C. 626; Harrison v. Railway Co., 6 S. D. 100, 60 N. W. 405; Louisville
& N. R. Co. v. Boweu (Ky.) 39 S. W. 31.
* Campbell v. Railway Co., 59 Mo. App. 151, 1 Mo. App. Rep'r, 3; St. Louis
S. W. Ry. Co. v. Russell, 64 Ark. 236, 41 S. W. 807; Chattanooga S. R. Co. v.
Daniel (Ala.) 25 South. 197.
8 Kean v. Chenault (Ky.) 41 S. W. 24; Yazoo & M. V. R. Co. v. Whitting-
ton, 74 Miss. 410, 21 South. 249. Thus, where cattle were observable for half
a mile, Chicago & N. W. R. Co. v. Barrie, 55 111. 226; or where a horse
runs for 200 yards in front of a train, Jones v. Railroad Co., 70 N. C. 626;
but where a cow jumped suddenly onto the track, 200 yards ahead of the
train, and the engineer used every means to stop the train, the company
was held not liable. Proctor v. Railroad Co., 72 N. C. 579. See, also, Ala-
bama G. S. R. Co. v. McAlpine, 75 Ala. 113.
144) FENCES. 345
144. FENCES Although cattle upon the tracks of the rail-
road company may be illegally at large, yet the
company will be liable for their injury if it has
omitted to perform a statutory duty regarding fen-
cing or guards, and the cattle become trespassers by
reason of such omission. 1
Statutory Duty.
But if, in such case, the negligence of the owner contributes to
the injury, his right of recovery may be thereby defeated. 2 Gen-
erally the question of negligence on the part of the railroad com-
pany does not arise where there has been an omission of its statu-
tory duty to build and maintain fences. 3 The liability in such cases
is absolute. But if it should appear that the presence of the cattle
on the track was not due to the omission to fence, no recovery can
be had against the company, unless negligence is shown. If the
company has fulfilled its duty in building fences, the further re-
quirement to maintain them is satisfied by an exercise of ordinary
care. 4 Hence if cattle should enter upon the tracks through a
breach made by a freshet or an unusually strong wind, and suffer
injury by collision, the company could successfully defend by show-
ing that the fence was properly built, and that a reasonable time
144. i Rogers v. Railroad Co., 1 Allen (Mass.) 16; McGhee v. Guyn
(Ky.) 32 S. W. G15; Lake Erie & W. R. Co. v. Beam, 60 111. App. 68; Conolly
v. Railroad Co., 4 App. Div. 221, 38 N. Y. Supp. 587; Vanduzer v. Railway
Co., 58 X. J. Law, 8. 32 Atl. 376; Spinner v. Railroad Co., 67 N. Y. 153; Patrie
v. Railroad Co. (Idaho) 56 Pac. S2.
2 Hill Y. Railroad Co., 67 X. H. 449, 32 Atl. 766. See "Contributory Neg-
ligence," post, pp. 346-348.
3 Corwin v. Railroad Co., 13 N. Y. 42; Gorman v. Railroad Co., 26 Mo. 441;
Gillam Y. Railroad Co., 26 Minn. 2GS, 3 X. W. 353; Kelver Y. Railroad Co.,
126 X. Y. 365, 27 X. E. 553; Smith Y. Railroad Co., 35 N. H. 356; Indianapolis
& C. R. Co. Y. Townsend, 10 Ind. 38; Veerhusen v. Railway Co., 53 Wis. 689,
11 X. W. 433; Fraysher Y. Railway Co., 66 Mo. App. 573; Connolly v. Rail-
road Co.. 158 X. Y. 675, 52 X. E. 1124.
* Toledo & C. S. Ry. Co. Y. Eder, 45 Mich. 329, 7 X. W. 898; Case v.
Railroad Co., 75 Mo. 668; Chicago & X. W. R. Co. Y. Barrie, 55 111. 226;
Lemmon Y. Railroad Co., 32 Iowa, 151. Burden on plaintiff where impossible
to build fences. Texas & P. Ry. Co. v. Scrivener (Tex. Civ. App.) 49 S. W.
049.
-346 DANGEROUS INSTRUMENTALITIES. (Ch. 8
had not been afforded to ascertain and repair the break. 8 The rule
lias been thus stated: "After fences have once been erected as re-
quired by law, the company is only liable for a negligent failure
to maintain such fences, and it is therefore entitled to a reasonable
time in which to make repairs, after having knowledge of a defect
therein, or after that period has elapsed in which, by the exercise
of reasonable diligence, it could have had knowledge of such de-
fect." 6 But the company must use diligence in making seasonable
repairs, 7 and the lapse of sufficient time to afford reasonable oppor-
tunity to inspect will charge the company with knowledge of the
defect. 8
Sufficient Fences and Guards.
What constitutes a sufficient fence or guard varies in different
states according to the statutes and the decisions of the courts.
In all states fences must be sufficiently strong and high to restrain
horses and cattle, and in some they must be sufficient to keep hogs
and sheep from pushing through. 9 In every case the fence must be
substantial enough to keep out the strongest, and even vicious, ani-
mals; 10 but not, necessarily, frightened or stampeded animals. 11
And, if a guard is ordinarily sufficient, the fact that in a particular
instance cattle succeeded in passing it will not render the company
liable. 12
Contributory Negligence.
The fact that cattle are running at large in violation of the law
is not generally sufficient to charge the owner with contributory
B Hodge v. Railroad Co., 27 Hun (N. Y.) 394.
Clardy v. Railroad Co., 73 Mo. 57G; Shear. & R. Neg. 459.
7 Brady v. Railroad Co., 1 Hun (N. Y.) 378; Spinner v. Railroad Co., 67
N. Y. 153; Chicago & N. W. R. Co. v. Harris, 54 111. 528; Peirce v. Radder-
man, 77 111. App. 619. And it is immaterial that the breach has been wrong-
fully made. Munch v. Railroad Co., 29 Barb. (N. Y.) 647.
s Corwin v. Railroad Co., 13 N. Y. 42; Ohio & M. R. Co. v. Clutter, 82
111. 123.
Lee v. Railway Co., 66 Iowa, 131, 23 N. W. 299; Missouri Pac. Ry. Co. v.
Bradshaw, 33 Kan. 533, 6 Pac. 917; ISew York, C. & St. L. Ry. Co. v. Zurn-
'baugh, 17 Ind. App. 171, 46 N. E. 548. Gates must be strongly constructed,
.Hill v. Railway Co., 66 Mo. App. 184.
10 Cincinnati, H. & I. R. Co. v. Jones, 111 Ind. 259, 12 N. E. 113.
11 Chicago & A. R. Co. v. Utley, 38 111. 410.
12 Jones v. Railway Co., 59 Mo. App. 137.
144 FENCES. 347
negligence, 18 but turning stock loose on the highway adjoining un-
fenced depot grounds/ 4 or with knowledge that cattle guards were
insufficient, and that stock had repeatedly passed over them onto
the tracks, 18 is contributory negligence sufficient to defeat a recov-
ery. But where fences were necessarily down during a repair of
the roadway near a railroad crossing, and a boy left cows in an
open lot near by, and they strayed onto the track, and were in-
jured, the railroad was liable. 18 And in a majority of cases where
injuries are caused to cattle through the failure of the railroad to
perform its statutory duty of fencing, the contributory negligence of
the owner in permitting them to stray upon the tracks, even though
they may be unlawfully at large, does not constitute a defense. 17
If the owner of cattle has a right to use land adjoining a railroad,
he cannot be debarred from that use by the failure of the com-
pany to fence its tracks, and may recover from the company for
injuries inflicted by it upon his stock, although he turned them loose
with full knowledge of the existing conditions. 18 And if, in the
above circumstances, the cattle escaped onto the track through an
insufficient fence, built by the owner himself, either for his own
convenience or by contract with the railroad company, the owner
would not be barred from recovery. 19 But failure of the owner or
custodian occupying land adjacent to a railroad to keep gates at
is Atchison, T. &, S. F. R. Co. v. Cupello, 61 111. App. 432.
i* Schneekloth v. Railway Co.. 108 Mich. 1, 65 N. W. 663.
is La Flamme v. Railway Co., 109 Mich. 509, 67 N. W. 556. But see Gulf,
C. & S. F. Ry. Co. v. Cash, 8 Tex. Civ. App. 569, 28 S. W. 387.
is Brady v. Railroad Co., 1 Hun (N. Y.) 378. See, also, Flint & P. M.
Ry. Co. v. Lull, 28 Mich. 510; Indianapolis & C. R. Co. v. Parker, 29 Ind. 471.
IT Corwin v. Railroad Co., 13 N. Y. 42; Shepard v. Railroad Co., 35 N. Y. 641;
Anderson v. Railway Co., 93 Iowa, 561, 61 N. W. 1058; Wabash R. Co.
v. Perbex, 57 111. App. 62; Atchison, T. & S. F. R. Co. v. Cupello, 61 111. App.
432; Galveston, H. & S. A. Ry. Co. v. Wessendorf (Tex. Civ. App.) 39 S. W.
132; Missouri, K. & T. Ry. Co. v. Bellows (Tex. Civ. App.) 39 S. W. 1000;
Chicago & E. I. R. Co. v. Blair, 75 111. App. 659.
is Gardner v. Smith, 7 Mich. 410; Shepard v. Railroad Co., 35 N. Y. 641;
Wilder v. Railroad Co., 65 Me. 332; Kuhn v. Railroad Co., 42 Iowa, 420;
Cleveland, C., C. & I. R. Co. v. Scudder, 40 Ohio St. 173; Gulf, C. & S. F.
Ry. Co. v. Cash, 8 Tex. Civ. App. 569, 28 S. W. 387.
is Illinois Cent. R. Co. v. Swearingeu, 33 111. 289; Xorris v. Railroad Co..
-39 Me. 273.
348 DANGEROUS INSTRUMENTALITIES. (Cfa. 8-
farm crossings closed, will preclude recovery for consequent inju-
ries to his cattle. 20
The negligence of the owner may be of such a character as to
amount to a willful exposure of his cattle to injury. In such case
the owner's conduct is equivalent to an abandonment, and there
can be no recovery, "for the legislature cannot be presumed to have
intended that one who abandons his property shall nevertheless re-
cover its value." 21
Cattle not Trespassers.
Where animals are rightfully on the track of a railroad, the lat-
ter is liable to the owner for injuries caused by its negligence; that
is, the company is responsible for its failure to use ordinary care. 2 *
Cattle are rightfully upon a railroad when crossing it on highways
under care of a proper custodian, 23 or, having escaped from the con-
trol of their custodian, who is using all proper diligence for their re-
capture, have continued on or come upon its tracks. 24
FIRES.
145. The common law of England imposed liability upon
the originator of a fire irrespective of negligence,
but it has been uniformly held in the United States
that he who permits a fire to start upon his own
land is liable for injurious consequences to another's
20 Ranney v. Railroad Co., 59 111. App. 130. And see Indianapolis, P. &
C. R. Co. v. Shinier, 17 Ind. 295; Illinois Cent. R. Co. v. McKee, 43 111. 119;
Pittsburg, C. & St. L. Ry. Co. v. Smith, 26 Ohio St. 124; Lake Erie & W.
R. Co. v. Welsel, 55 Ohio St. 155, 44 N. B. 923; Harding v. Railroad Co.,
100 Iowa, 677, 69 N. W. 1019.
2iWelty v. Railroad Co., 105 Ind. 55, 4 N. E. 410. And see Bunnell v.
Railway Co., 13 Utah, 314, 44 Pac. 927; McCann v. Railway Co., 96 Wis.
664, 71 N. W. 1054; Case v. Railroad Co., 59 N. J. Law, 471, 37 Atl. 65.
22 Fritz v. RailroaJ Co., 22 Minn. 404; Lane v. Railroad Co., 31 Kan. 525,
3 Pac. 341.
23 Lane v. Railroad Co., 31 Kan. 525, 3 Pac. 341; White v. Railroad Co.,
30 N. H. 188.
24 Louisville & N. R. Co. v. Williams, 105 Ala. 379, 16 South. 795; Tona-
wanda R. Co. v. Munger, 5 Denio (N. Y.) 255.
146) IXTKXTIOXAI. FIRES. 349
property only when he has been guilty of negli-
gence, either in permitting the fire to start or in
extinguishing it.
Negligence the Gist of the Liability.
At common law a person using dangerous instrumentalities acts
at his peril, and is responsible for any damages not caused by ex-
traordinary natural consequences, or by the intervention of stran-
gers; 1 and it was well settled that one who kindled a fire, either
in his house or in his field, must see that it did no harm, or answer
for damages done, 2 that is, irrespective of negligence or interven-
ing agencies, the originator of the fire must answer in damages for
injurious results. Such has never been the law in this country,
the decisions being uniform that negligence or misconduct is the
gist of the liability. 3 Nor does the destruction of property by fire
raise any presumption of negligence, except, in some states, in the
case of railroad fires.*
SAME INTENTIONAL FIRES.
146. A person may intentionally set out a fire, for a legit-
imate purpose, without becoming responsible for
damage caused thereby, provided he uses ordinary
care in the circumstances.
It follows that one may set fire to his own land, whether tim-
ber, grass, or stubble, for a legitimate purpose, such as to clear
or otherwise improve it, without incurring liability for injurious
consequences to adjoining owners, provided he uses ordinary care
145. i Fletcher v. Rylands, L. R. 1 Exch. 265, 279.
2 Tubervil v. Stamp, 1 Salk. 13.
s Clark v. Foot, 8 Johns. (X. Y.) 421; Bachelder v. Heagan, 18 Me. 32;
Stuart v. Hawley, 22 Barb. (X. Y.) 619; Barnard v. Poor, 21 Pick. (Mass.)
378; Dewey v. Leonard, 14 Minn. 153 (Gil. 120); Higgins v. Dewey, 107 Mass.
494; Grannis v. Cummings, 25 Conn. 165; McCully v. Clarke, 40 Pa. St.
399; Miller v. Martin, 16 Mo. 508; Fahn v. Reichart, 8 Wis. 255; Sturgis
v. Robbins, 62 Me. 289; Tourtellot v. Rosebrook, 11 Mete. (Mass.) 460;
Fraser v. Tupper, 29 Yt. 409.
* Bryan v. Fowler, 70 X. C. 590. As to railroad fires, see post, pp. 3.~>3-:Hv>.
350 DANGEROUS INSTRUMENTALITIES. (Ch. 8
in the selection of the time, and is not negligent in other respects. 1
The rule is thus stated in a Maine case: 2 "Every person has a
right to kindle a fire on his own land for the purposes of hus-
bandry, if he does it at a proper time, and in a suitable manner,
and uses reasonable care and diligence to prevent it spreading,
and doing injury to the property of others. The time may be suit-
able, and the manner prudent, and yet, if he is guilty of negligence
in taking care of it, and it spreads, and injures the property of an-
other, in consequence of such negligence, he is liable in damages for
the injury done. The gist of the action is negligence, and if that
exists in either of these particulars, and injury is done in conse-
quence thereof, the liability attaches; and it is immaterial whether
the proof establishes gross negligence, or only a want of ordinary
care on the part of the defendant." And, in general, it is imma-
terial for what purpose the fire is kindled by the landowner or occu-
pant, provided it is a lawful one. If it spreads to and injures prop-
erty on adjoining land, he* who seeks to enforce liability therefor
must affirmatively prove negligence, either in the inception or sub-
sequent handling of the fire. 3 But the burden of proof would seem
to be on the defendant to establish his freedom from negligence,
where he has either intentionally or accidentally set fire upon land
not his own; 4 otherwise it is upon the plaintiff. 5 And where the
fire is set upon the land of another the originator is, in general,
liable for whatever damage results. 6
146. i Clark v. Foot, 8 Johns. (N. Y.) 421; Bachelder v. Heagan, 18 Me.
32; Stuart v. Hawley, 22 Barb. (X. Y.) 619; Dewey v. Leonard, 14 Minn.
153 (Gil. 120); Fahn v. Reichart, 8 Wis. 255; Fraser v. Tupper, 29 Vt. 409;
Hays' Adru'r v. Miller, 6 Hun (N. Y.) 320; Hanlon v. Ingram, 3 Iowa, 81;
Dolby v. Hearn, 1 Marv. 153, 37 Atl. 45; Lillibridge v. McCann (Mich.) 75
N. W. 288.
2 Hewey v. Nourse, 54 Me. 256.
3 Tourtellot v. Rosebrook. 11 Mete. (Mass.) 460; Bachelder v. Heagan, 18
Me. 32; Ellsworth v. Ellingson, 96 Iowa, 154, 64 N. W. 774.
* Cleland v. Thornton, 43 Cal. 437; Jordan v. Wyatt, 4 Grat. (Va.) 151.
B Bachelder v. Heagan, 18 Me. 32; Clark v. Foot, 8 Johns. (N. Y.) 421;
Stuart v. Hawley, 22 Barb. (N. Y.) 619; Dewey v. Leonard, 14 Minn. 153
(Gil. 120); Miller v. Martin, 16 Mo. 508; Fahn v. Reichart, 8 Wis. 255; Fraser
v. Tupper, 29 Vt. 409.
Finley v. Langston, 12 Mo. 120.
fc 117) ACCIDENTAL FIRES. 351
SAME ACCIDENTAL FIRES.
147. When damage is caused by fires accidental in their
origin, the test of liability is the degree of care ex-
ercised by the defendant.
When fires originate without any deliberate intent, the usual test
of ordinary care applies. 1 Where the servants of defendant left
oil and inflammable material close to a stove, which was constantly
growing hotter, thus producing a conflagration, which destroyed
plaintiff's property, it was held that a verdict of negligence was
warranted. 2
Proximate Damage from Negligent Fires.
To what extent a person is liable for damage caused by his neg-
ligence in starting or permitting a fire to spread, is a question in-
volving much difficulty, and embracing many conflicting decisions.
It has already been observed 3 that, in theory, at least, there is no
escape from the conclusion that there is no limit to the liability
of a person for the direct, natural results of his negligence. If be-
tween the act of the person and the damage complained of there
intervenes an act or condition legally sufficient to break the causal
connection, to obliterate the influence of the primary cause, and
make the results its own offspring, the original actor cannot be-
held responsible. The proposition is simple; the difficulty lies in
its application to concrete cases. In discussing this subject, the su-
preme court of the United States says: "One of the most valuable
of the criteria furnished us by the authorities is to ascertain whether
any new cause has intervened between the fact accomplished and
the alleged cause. If a new force or power has intervened, of itself
sufficient to stand as the cause of the misfortune, the other must
be considered as too remote." * The great weight of authority in
this country undoubtedly holds that the mere intervention of space
147. i Spaulding v. Railway Co., 30 Wis. 110; Webb v. Railroad Co^
49 X. Y. 420; Lansing v. Stone, 37 Barb. (N. Y.) 15.
2 Read v. Railroad Co., 44 X. J. Law, 280.
s See "Xegligence," ante, pp. 17-33.
* Mutual liis. Co. v. Tweed, 7 Wall. 44.
352 DANGEROUS INSTRUMENTALITIES. (Ch. 8
does not make the damage remote. Thus, if the defendant negli-
gently starts a fire, which communicates to the land of B., and
thence to the land of C., and so on through succeeding holdings to
the property of the plaintiff, the mere fact of the remoteness of
the plaintiff's property from the place where the fire originated will
not preclude his recovery from the defendant. 5 In Perley v. Eastern
R. Co., 6 the court says: "The fact, therefore, that the fire passes
through the air, driven by a high wind, and that it is communicated
to the plaintiff's property from other intermediate property of other
men, does not make his loss a remote consequence of the escape
of the fire from the engine. * * * If, when the cinder escapes
through the air, the effect which it produces upon the first com-
bustible substance against which it strikes is proximate, the effect
must continue to be proximate as to everything which the fire con-
sumes in its direct course. As a matter of fact, the injury to the
plaintiff was as immediate and direct as an injury would have been
which was caused by a bullet, fired from the train, passing over the
intermediate lots, and wounding the plaintiff as he stood upon his
own lot." In the latter case a locomotive set fire to grass near
the track, and the fire crossed the land of A., B., and C. before-
reaching and destroying the property of the plaintiff, w r ho was al-
lowed to recover. In another case where recovery was permitted
the fire was communicated from dry grass on the defendant's right
6 Hart v. Railroad Co., 13 Mete. (Mass.) 99; Perley v. Railroad Co., 98
Mass. 414; Powell v. Deveney, 3 Cush. (Mass.) 300; Vandenburgh v. Truax,
4 Denio (N. Y.) 464; Cleaveland v. Railway Co., 42 Vt. 449; Toledo. P. & W.
Ry. Co. v. Pindar, 53 111. 447; Milwaukee & St. P. Ry. Co. v. Kellogg, 94
U. S. 4(59; Missouri Pac. R. Co. v. Texas & P. R. Co., 31 Fed. 32U; At-
kinson v. Transportation Co., GO Wis. 141, 18 N. W. 764; Delaware, L. &
W. R. Co. v. Salmon, 39 N. J. Law, 300; Hoyt v. Jeffers, 30 Mich. 181;
Billman v. Railroad Co., 76 Ind. 1GG; Henry v. Railroad Co., 50 Cal. 176;
Small v. Railroad Co., 55 Iowa, 582, 8 N. W. 437; Sibley v. Railroad Co.,
32 Minn. 526, 21 N. W. 732; Ingersoll v. Railroad Co., 8 Allen (Mass.) 438;
Annapolis & E. R. Co. v. Gantt, 39 Md. 115; Coates v. Railway Co., 61 Mo.
38. In direct conflict with this rule are Ryan v. Railroad Co., 35 N. Y. 210;
Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353; Chicago, R. I. & P. Ry. Co. v.
McBride, 54 Kan. 172, 37 Pac. 978; Chicago & E. R. Co. v. Luddiugton, 10
Ind. App. 636, 38 N. E. 342.
e 98 Mas*. 414, at pages 418, 419.
149) DEGREE OF CARE. 353
of way to the adjoining fields, and thence traveled nearly a mile
before destroying plaintiff's property. 7 In Poeppers v. Missouri, K.
& T. Ry. Co., 8 the fire, which originated in dry grass beside defend-
ant's road, extended a distance of about eight miles before reach-
ing and destroying the property for which plaintiff was allowed to
recover. In some states the liability of railroad companies for dam-
ages caused by fire originating from their locomotives is affected
by special statutes.
SAME EAILROAD FIRES.
148. In the absence of special statute, it is the well-settled
law, both of England and the United States, that
the gist of liability for fires set by locomotives is
negligence. 1
In a few states, by statutory enactment, the question of negli-
gence is entirely eliminated, and railroad companies are liable, ipso
facto, for any damage resulting from fires kindled by their engines. 2
149. DEGREE OF CARE A railroad company chartered
with the right to use steam as a motive power is
liable for fires kindled by its engines only -when it
has failed to use that degree of care in their opera-
tion which a prudent man, skilled in the particular
business, would exercise.
^ Burlington & M. R. Co. v. Westover, 4 Neb. 268.
s 67 Mo. 715.
148. i Philadelphia & R. R. Co. v. Yeiser, 8 Pa. St. 366; Frankford &
B. Turnpike Co. v. Philadelphia & T. R. Co., 54 Pa. St. 345; Philadelphia
& R. R. Co. v. Yerger, 73 Pa. St. 121; Illinois Cent. R. Co. v. Mills, 42 111.
407; Indiana & C. R. Co. v. Paramore, 31 Ind. 143; Jackson v. Railroad Co.,
31 Iowa, 176; Kansas Pac. Ry. Co. v. Butts. 7 Kan. 308; Ellis v. Railroad Co.,
2 Ired. (X. C.) 138; Morris & E. R. Co. v. State, 36 N.'j. Law, 553; Burroughs
v. Railroad Co., 15 Conn. 124; Home Ins. Co. v. Pennsylvania R. Co., 11
Hun (N. Y.) 182; McHugh v. Chicago & N. W. Ry. Co., 41 Wis. 78; Woodson
v. Railway Co., 21 Minn. 60; Continental Trust Co. v. Toledo, St. L. &
K. C. R. Co., 89 Fed. 637.
2 Perley v. Railroad Co., 98 Mass. 414; Simmonds v. Railroad Co., 52
Conn. 264; Rowell v. Railroad Co., 57 N. H. 132.
BAR.NEG. 23
354 DANGEROUS INSTRUMENTALITIES. (Ch. 8
In Yaughan v. Taff Yale R. Co., 1 Cockburn, C. J., says: "When
the legislature has sanctioned and authorized the use of a particu-
lar thing, and it is used for the purpose for which it was author-
ized, and every precaution has been observed to prevent injury, the
sanction of the legislature carries with it this consequence: that, if
damage results from the use of such thing, independently of negli-
gence, the party using it is not responsible."
Such negligence as will render the company liable may be other-
wise stated to be the failure to use every reasonable precaution
to guard against setting fires. 2 It goes without saying that the
reasonableness of a precaution may depend entirely on the prevail-
ing conditions, the same care not being required when the ground
is covered with snow, or drenched with rain, as when the land is
suffering from a drought, and materials along the route have be-
come dry and inflammable like tinder. The care, therefore, as in
other cases, must be proportioned to the danger.
Construction of Engines.
Locomotives should be supplied with all well-known and tested
appliances for preventing the escape of sparks, 3 and, even when
such appliances have been adopted, the company is not excused if
sparks escape through negligent usage, as overcrowding the en-
149. i 5 Hurl. & N. 679.
2 Jackson v. Railroad Co., 31 Iowa, 176; Huyett v. Railroad Co., 23 Pa.
St. 373; Illinois Cent. R. Co. v. McClelland, 42 111. 355; Bass v. Railroad
Co., 28 111. 9. And see Rood v. Railroad Co., 18 Barb. (N. Y.) 80; Philadel-
phia & R. R. Co. v. Yeiser, 8 Pa. St. 366; Burroughs v. Railroad Co., 15
Conn. 124; Baltimore & S. R. Co. v. Woodruff, 4 Md. 242; Indiana, B. & W.
Ry. Co. v. Craig, 14 111. App. 407; St. Louis S. W. Ry. Co. v. Knight (Tex.
Civ. App.) 49 S. W. 250; St. Louis & S. F. Ry. Co. v. Hoover, 3 Kan. App. 577,
43 Pac. 854. But the fact that, after a fire has been negligently started
by a railroad company on its right of way, employe's used every effort to
extinguish it, will not relieve the company from liability. Chicago & E. R.
Co. v. Luddington, 10 Ind. App. 636, 38 N. E. 342.
s Menominee River s'ash & Door Co. v. Milwaukee & N. R. Co., 91 Wis.
447, 65 N. W. 176; Watt v. Railroad Co., 23 Nev. 154, 44 Pac. 423. And
failure to use a spark arrester is negligence per se. Anderson v. Steamboat
Co., 64 N. C. 399; Bedell v. Railroad Co., 44 N. Y. 367. Relative merits of
smoke-consuming appliances a question for jury. American Strawboard Co.
v. Chicago & A. R. Co., 75 111. App. 420.
149) DEGREE OF CARE.
gine. 4 The company need not experiment with every new inven-
tion that is offered. Failure to adopt a particular appliance is neg-
ligence only when it has been found effective, and generally adopted. 5 "
An instruction to the effect that defendant was guilty of negli-
gence unless his boat was provided with all the means and appli-
ances which science has discovered to prevent the escape of fire-
is erroneous. 6 But, to relieve the company from liability, it is not
sufficient to show that the machinery used was such as was itt
common and general use, and had been approved by experience. 7 "
The requirement that engines should use the best-known appliances-
to prevent injury to property by fire has been held both reason-
able 8 and unreasonable. 9
Combustibles on Right of Way.
Ordinary care on the part of a railroad company to prevent the*
kindling and spread of fires requires that it should keep its prop-
erty adjacent to the tracks free from inflammable materials, and
failure to do so is evidence of negligence. 10 Such failure, however,.
is not conclusive against the railroad, the question of negligence
being for the determination of the jury on the facts, 11 and the com-
* Toledo, P. & W. Ry. Co. v. Pindar, 53 I1L 447; Atchison, T. & S. F. R_
Co. v. Huitt, 1 Kan. App. 788, 41 Pac. 1051.
s Frankford & B. Turnpike Co. v. Philadelphia & T. R. Co., 54 Pa. St_
345; Steinweg v. Railway Co., 43 N. Y. 123; Paris, M. & S. P. Ry. Co, T.
XesbStt, 11 Tex. Civ. App. 608, 33 S. W. 280; Spaulding v. Railroad Co., 3O
Wis. 110. And mistaken judgment in choosing a poorer instead of a better
contrivance is not necessarily negligence. Hoff v. Railroad Co., 45 N. J.
Law, 201.
6 Read v. Morse, 34 Wis. 315.
7 Pittsburgh, C. & St. L. R. Co. v. Nelson, 51 Ind. 150.
s Watt v. Railroad Co., 23 Nev. 154, 44 Pac. 423.
Paris, M. & S. P. Ry. Co. v. Nesbitt, 11 Tex. Civ. App. 608, 33 S. W. 280L
10 Pittsburgh, C. & St. L. R. Co. v. Nelson, 51 Ind. 150; Clarke v. Railway-
Co., 33 Minn. 359, 23 N. W. 536; Kellogg v. Railway Co., 26 Wis. 223; OMo-
& M. R. Co. v. Shanefelt, 47 111. 497; Eddy v. Lafayette, 163 U. S. 456, ia
Sup. Ct. 10S2; Louisville & N. R. Co. v. Miller, 109 Ala. 500, 19 South. 983;.
Blue v. Railroad Co., 117 N. C. 644, 23 S. E. 275; New York. P. & N. R_
Co. v. Thomas, 92 Va. 606, 24 S. E. 264; Briant v. Railroad Co., 104 Mich_
307, 62 N. W. 365; Black v. Railroad Co., 115 N. C. 667, 20 S. E. 713, 909;:
Watt v. Railroad Co., 23 Xev. 154, 44 Pac. 423; Mobile & O. R. Co. v. Stin-
suu, 74 Miss. 453, 21 South. 14.
11 Illinois Cent. R. Co. v. Mills, 42 111. 4U8; Richmond & D. R. Co. v.
356 DANGEROUS INSTRUMENTALITIES. (Ch. 8
pany is not relieved from liability for negligence in this respect,
although it used the newest and most-approved spark arresters. 12
Proof of Cause of Fire.
The burden of proving that the fire in question was set by de-
fendant's locomotives is upon the plaintiff, but it need not be shown
beyond a reasonable doubt, or by a preponderance of testimony.
It is sufficient if the evidence reasonably warrants the conclusion. 13
But the mere fact that a fire started upon the right of way of a
railroad is insufficient to support a verdict for damages caused
thereby, 14 although very slight evidence is enough to support a
verdict against the railroad when no other cause or theory for the
origin of the fire is presented. 15 It is not essential that the origin
of the fire be traced to a particular engine, and evidence that on
previous occasions different engines of defendant on the same road
had dropped live coals or emitted sparks, is competent as tending
to show habitual negligence, and will be sufficient to support a find-
ing that the fire complained of was set in the same way. 16 Very
slight evidence as to the origin of the fire entitles the question to
submission to the jury. 17
Medley, 75 Va. 499; Brown v. Railroad Co., 4 App. Div. 465, 38 N. Y. Supp.
655; Taylor v. Railroad Co., 174 Pa. St. 171, 34 Atl. 457; Padgett v. Railroad
Co., 7 Kan. App. 736, 52 Pac. 578; Waters v. Railroad Co. (N. J. Sup.) 43
Atl. 670.
12 Texas & P. Ry. Co. v. Ross, 7 Tex. Civ. App. 653, 27 S. W. 728; Gal-
veston, H. & S. A. Ry. Co. v. Polk (Tex. Civ. App.) 28 S. W. 353; New York,
P. & N. R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264; Toledo, P. & W.
Ry. Co. v. Endres, 57 111. App. 69; Chicago & A. R. Co. v. Glenny, 70
111. App. 510; Tutwiler v. Railway Co., 95 Va. 443, 28 S. E. 597; Chicago
& E. R. Co. v. Bailey, 19 Ind. App. 163, 46 N. E. 688; International & G.
N. R. Co. v. Newman (Tex. Civ. App.) 40 S. W. 854.
is Watt v. Railroad Co., 23 Nev. 154, 44 Pac. 423, and 46 Pac. 52; Lake-
side & M. R. Co. v. Kelly, 10 Ohio Cir. Ct. R. 322, 3 Ohio Dec. 319; Sheldon
v. Railroad Co., 29 Barb. (N. Y.) 226.
i* Taylor v. Railroad Co., 174 Pa. St. 171, 34 Atl. 457.
is Keniiey v. Railroad Co., 70 Mo. 243; Cole v. Railway Co., 105 Mich.
549, G3 N. W. 647; Fremantle v. Railroad Co., 10 C. B. (N. S.) 89.
16 Field v. Railroad Co., 32 N. Y. 339; Sheldon v. Railroad Co., 14 N.
Y. 218. And see Frier v. Canal Co., 86 Hun, 464, 33 N. Y. Supp. 886; Pig-
got v. Railroad Co., 3 C. B. 229.
IT Cole v. Railway Co., 105 Mich. 549, 63 N. W. 647.
149) DEGREE OF CARE. 357
Proof of
By the great weight of authority, a presumption of defendant's
negligence arises when the setting of the fire has been brought
home to the railroad company. 18 In Field v. New York Cent. E.
Co. 19 the court says: "Undoubtedly, the burden of proving that
the injury complained of was caused by defendants' negligence was
upon the plaintiff. To show r negligence, however, it was not neces-
sary that he should have proved affirmatively that there was some-
thing unsuitable or improper in the construction or condition or
management of the engine that scattered the fire communicated to
his premises. It often occurs, as in this case, that the same evi-
dence which proves the injury shows such attending circumstances
as to raise a presumption of the offending party's negligence, so as
to cast on him the burden of disproving it. Then the injury was
caused by dropping from the defendants' engine coals of fire. The
fact that the sparks or coals were scattered at all upon their road-
way, in such quantities as to endanger property on abutting prem-
ises, raised an inference of some weight that the engines were im-
properly constructed or managed. But this was not all. It was
conceded and proved that, if the engine is properly constructed,
and in order, no fire of any amount will escape to be distributed
along the track. * * * It was legitimately to be inferred from
these facts that the scattering of coals of fire from the defendants'
engines, which were found upon their track, and which produced
is Piggot v. Railroad Co., 3 C. B. 229; Bass v. Chicago, B. & Q. R.
Co., 28 111. 9; Fitch v. Railroad Co., 45 Mo. 322; Illinois Cent. R. Co. v.
Mills, 42 111. 407; Case v. Railroad Co., 59 Barb. (N. Y.) 644; Bedford v.
Railroad Co., 46 Mo. 456; Spaulding v. Railroad Co., 30 Wis. 110; Slossea
v. Railroad Co., 60 Iowa, 215, 14 N. W. 244 (statutory); Chicago & A. R.
Co. v. Pennell, 110 111. 435 (statutory); Lowery v. Railway Co., 99 N. Y..
158, 1 N. E. 608; Green Ridge R. Co. v. Brinkman, 64 Md. 52, 20 Atl. 1024;.
Ellis v. Railroad Co., 24 N. C. 138; McCready v. Railroad Co., 2 Strob_
(S. C.) 35G; Cleaveland v. Railroad Co., 42 Vt. 449 (statutory); Simpson v..
Railroad Co., 5 Lea (Tenn.) 456; Burlington & M. R. Co. v. Westover, 4;
Neb. 268; International & G. N. R. Co. v. Timmermann, 61 Tex. 660; Sibil-
rud v. Railroad Co., 29 Minn. 58, 11 N. W. 146; Edwards v. Bonner, 12 Tex.
Civ. App. 236, 33 S. "W. 761; Gulf, C. & S. F. Ry. Co. v. Johnson (Tex..
Sup.) 50 S. W. 563; Texas M. R. Co. v. Hooten (Tex. Civ. App.) 50 S. W.
499.
i 32 N. Y. 339.
358 DANGEROUS INSTRUMENTALITIES. (Ch. 8
the injury, was the result either of effectiveness in the machinery,
or neglect in repairing it." Pennsylvania and Ohio are exceptions
to this rule, having held that it rests with the plaintiff to show
^defendant's failure to observe some necessary precaution. 20 This
presumption of negligence is generally held to be rebutted by proof
that the engine was equipped with the best appliances, and was
-carefully handled; 21 but when the origin of the fire is proved to
l>e from sparks emitted from defendant's engine, and the latter
proves that the engine was equipped with the best appliances, and
properly handled, the question whether the statutory presumption
of negligence on the part of defendant has been rebutted has been
held to be for the jury. 22 But where it appears by the uncontra-
<dicted evidence that defendant used the best spark arrester known,
It is error to submit to the jury the question of defendant's negli-
gence in using such arrester. 23 It has been held to be sufficient evi-
dence that a spark arrester is defective to show that for a con-
siderable time prior to the fire complained of it has emitted sparks
which presumably set fire to the right of way. 24
Contributory Negligence.
The owner or occupant of property must use ordinary care to
preserve his property from destruction or injury by fire which threat-
zo Philadelphia & R. B. Co. v. Yerger, 73 Pa. St. 121; Jennings v. Rail-
road Co., 93 Pa. St. 337; Ruffner v. Cincinnati, H. & D. R. Co., 34 Ohio
St 96.
siSearles v. Railroad Co., 101 N. Y. 661, 5 N. E. 66; Brown v. Railroad
Co., 19 S. C. 39; Lake Erie & W. Ry. Co. v. Gossard, 14 Ind. App. 244,
42 N. E. 818. But see Lake Erie & W. R. Co. v. Holderman, 56 111. App.
H.44; Menominee River Sash & Door Co. v. Milwaukee & N. R. Co., 91
Wis. 447, 65 N. W. 176; Cleveland, C., C. & St. L. Ry. Co. v. Case, 71
mL App. 459; Louisville & N. R. Co. v. Dalton (Ky.) 43 S. W. 431. Evidence
not sufficient to show careful handling. Atchison, T. & S. F. R. Co. v. Huitt,
1 Kan. App. 788, 41 Pac. 1051.
- Burud v. Railroad Co., 62 Minn. 243, 64 N. W. 562; Callaway v. Stur-
geon, 58 111. App. 159.
" Frace v. Railroad Co. (reversing [Sup.] 22 N. Y. Supp. 958) 143 N.
T. 182, 38 N. E. 102; Menominee River Sash & Door Co. v. Milwaukee
A.N. R. Co., 91 Wis. 447, 65 N. W. 176.
** Louisville, N. A. & C. Ry. Co. v. McCorkle, 12 Ind. App. 691, 40 N.
B. 26; Peck v. Railroad Co., 37 App. Div. 110, 55 N. Y. Supp. 1121; Mc-
3Cavish v. Railway Co. (N. D.) 79 N. W. 443.
149) DEGREE OF CARE. 359
ens it, 25 but he is not bound to anticipate the negligence of a rail-
road company in the operation of its engines. 26 He may, without
subjecting himself to the charge of contributory negligence, use his
land for any legitimate purpose; 27 and may either cut his grass,
or permit it to stand and become dry, as he may see fit; 28 and he
may so use his property, in the exercise of ordinary care, although
he may know that the neighboring railroad has, through its negli-
gence, set frequent fires. 29 He may erect his buildings in close
proximity to the railroad, 30 and roof them with what material he
may choose. 31 As has been aptly stated by Shearman and Red-
field: 32 'Tor, if the frequent recurrence of sparks large enough to
set thatched roofs on fire is to make it an act of negligence in a
peasant owner to cover his house with a thatched roof, then a few
more sparks w r ill preclude him from using shingles."
In a certain class of cases where the owner has placed or per-
mitted inflammable matter, otherwise than in due natural course,
2 s Illinois Cent. R. Co. v. McClelland, 42 111. 355; St. Louis & S. F. Ry.
o. v. Stevens, 3 Kan. App. 176, 43 Pac. 434; Gulf, C. & S. F. Ry. Co. v.
Jagoe (Tex. Civ. App.) 32 S. W. 717; Texas Pac. Ry. Co. v. Leon & H. Blum
Land Co. (Tex. Civ. App.) 49 S. W. 253.
20 Ernst v. Railroad Co., 35 N. Y. 9; Fox v. Sackett, 10 Allen (Mass.) 535;
Reeves v. Railroad Co., 30 Pa. St. 454; New York, C. & St. L. R. Co. v.
Orossman, 17 Ind. App. 652, 46 N. E. 546; Mobile & O. R. Co. v. Stinson,
74 Miss. 453, 21 South. 14, 522.
27 Kalbfleisch v. Railroad Co., 102 N. Y. 520, 7 N. E. 557.
as Philadelphia & R. R. Co. v. Schultz, 93 Pa. St. 341; Pittsburgh, C.
& St. L. Ry. Co. v. Jones, 86 Ind. 496; Richmond & D. R. Co. v. Medley, 75
Va. 499; Fitch v. Railroad Co., 45 Mo. 322; Vaughan v. Railroad Co., 3
Hurl. & N. 743; Union Pac. Ry. Co. v. Ray, 46 Xeb. 750, 65 N. W. 773;
Padgett v. Railroad Co., 7 Kan. App. 736, 52 Pac. 578.
29 Snyder v. Railway Co., 11 W. Va. 14.
so Burke v. Railroad Co., 7 Heisk. (Tenn.) 451; Grand Trunk R. Co. v.
Richardson, 91 U. S. 454. But see Briant v. Railroad Co., 104 Mich. 307,
G2 N. W. 365; Cleveland, C., C. & St L. Ry. Co. v. Scantland, 151 Ind. 488;
51 N. E. 1068. Failure to replace broken glass in window facing track in
building filled with hay not negligence. Wild v. Railroad, 171 Mass. 245,
50 N. E. 533.
si Burke v. Railroad Co., 7 Heisk. (Tenn.) 451; Alpern v. Churchill, 53
Mich. 607, 19 N. W. 549; Louisville & N. R. Co. v. Malone, 116 Ala. 600,
22 South. 897.
2 Shear. & R. Neg. (4th Ed.) 680.
360 DANGEROUS INSTRUMENTALITIES. (Ch. 8
to accumulate in close proximity to a railroad, and where it is liable
to be ignited by sparks from passing engines, the question of his
contributory negligence has been held properly submitted to the
jury. 33 It is impossible, however, to draw any rational distinction
in principle between exposing a cord of wood or a barn to the dan-
ger arising from fire from locomotives. If one may rightfully, and
without incurring the Charge of contributory negligence, place his
dwelling house within two feet of a railroad track, where engines
are constantly passing, it is difficult to see why he may not with
equal impunity pile his wood in a similar place. The reasoning of
the court in Vaughan v. Taff Vale R. Co., 34 which has been so fre-
quently followed in the United States, would seem to be convincing.
A person ought not to be charged with negligence because he does
not change his legitimate mode of conducting his business, in or-
der to accommodate himself to the negligent conduct of his neigh-
bor. His right to make an unrestricted use of his own property
should not be curtailed by the fear that his neighbor will make a
negligent use of his. He is not required to spend time, money, and
labor in endeavoring to make his property proof against another's
careless conduct. 35 We conclude that the true rule in these cases
is that a plaintiff is not responsible for the mere condition of his
premises lying alongside a railroad, but, in order to be held for
contributory negligence, must have been guilty of the omission of
some positive duty, which, concurring with the negligence of the
defendant company, is the proximate cause of his injury. 38
ANIMALS.
150. Animals ferae naturae are presumptively dangerous,
and their owner is responsible for their injurious
acts, caused by his negligence, regardless of his
knowledge of their individual dispositions.
a Murphy v. Railway Co., 45 Wis. 222; Collins v. Railroad Co., 5 Hun
(N. Y.) 499; Niskern v. Railway Co., 22 Fed. 811; Omaha Fair & Exposi-
tion Ass'n v. Missouri Pac. Ry. Co., 42 Neb. 105, 60 N. W. 330; Coates v.
Railway Co., 61 Mo. 38.
34 3 Hurl & N. 743.
86 Thomp. Neg. p. 168.
e Philadelphia & R. R. Co. v. Hendrickson, SO Pa. St. 182.
150) ANIMALS. 361
The right of recovery for injuries caused by animals rests on the
same basis as that for harm done by any other dangerous instru-
mentality, and the gist of the action is, in every instance, negli-
gence. If a man negligently permits fire to escape from his con-
trol, to the damage of his neighbor's property, he is liable; and if
he negligently permits his bull, confessedly dangerous, to escape
from the pasture, and gore his neighbor, the latter may recover
therefor. When the instrumentality is admittedly dangerous, no
difficulty arises. Hence there is little controversy where the harm
is done by animals terse nature. It is a matter of common knowl-
edge that animals of this class, following their natural instincts,
are liable to do mischief to those with whom they come in contact.
Against the owners of such animals a conclusive presumption arises
of knowledge as to the disposition and characteristics of that spe-
cies. 1 And if such animals as bears, monkeys, lions, etc., are per-
mitted to run at large, or are left in a place where they may do
injury, a presumption of negligence arises. 2 And it would seem
that this presumption has in some cases been held conclusive, the
court sajung in one instance, ''The gist of the action is the keep-
ing the animal after knowledge of its mischievous propensities." 3
But this conclusion is not supported by reason or analogy. If a
person lawfully keeps a wild animal for a useful purpose, his obli-
gation to so confine it that it cannot injure other people is not
greater or otherwise than it is in the case of fire, or any other dan-
gerous instrumentality. And it is therefore believed that the gist
of the action for injuries caused by a wild beast or by any con-
fessedly dangerous animal, whether the injury is inflicted while
the animal is confined or at large, is negligence on the part of its
owner or keeper. 4 And it has been held that no recovery can be
had against the owner of a savage dog, kept for the protection of
150. iBesozzi v. Harris, 1 Fost. & F. 92 (injuries by a bear, previously
tame and inoffensive); May v. Burdett, 9 Q. B. 101 (a mischievous monkey).
2 Id.
s May v. Burdett, 9 Q. B. 101; Brown v. Carpenter, 26 Vt. 638; Van
Leuven v. Lyke, 1 N. Y. 515; Scribner v. Kelley, 38 Barb. (N. Y.) 14. And
see Shear. & R. Neg. (4th Ed.) 629.
* Earl v. Van Alstine, 8 Barb. (N. Y.) 630; Scribner v. Kelley, 38 Barb.
(N. Y.) 14; Laverone v. Mangianti, 41 Cal. 140; Ulery v. Jones, 81 111. 403;
Canefox v. Crenshaw, 24 Mo. 199.
562 DANGEROUS INSTRUMENTALITIES. (Oh. 8
the household, and which was allowed to go loose in the yard at
night, where it attacked and bit the plaintiff, who had negligently
entered the yard, knowing that the dog was loose, and inclined to
bite. 5 One may not, however, place a dangerous dog in a position
where he is liable to do harm to one coming innocently on his prem-
ises. 6 The utmost that can be said of the conduct of one who
undertakes to exercise restraint upon an animal confessedly dan-
gerous is that the act of keeping raises a presumption of negligence
in the event of injury caused by the animal. 7
Control of Animals.
The right of action for injuries caused by animals lies not only
against the owner, but equally against him having the right of
control. 8 Where animals are the subject of joint ownership, an
action for injuries caused thereby will lie against either or both
owners, although but one had the custody or actual control at the
time of the injury. 9 And so, if the defendant had the right of con-
trol, although he had parted with the possession of the animal,
he is none the less liable for its mischievous acts. 10 Where, how-
ever, the animal is in the possession of a bailee, the right of con-
trol having been temporarily suspended, it seems that the action
will not lie against the ow^ner. 11 A person may be liable for in-
juries caused by an animal kept by him contrary to the wish of
o Brock v. Copeland, 1 Esp. 203; Woodbridge v. Marks, 17 App. Div. 139,
45 N. Y. Supp. 156.
e Sarch v. Blackburn, 4 Car. & P. 297; Curtis v. Mills, 5 Car. & P. 489.
Nor even to a trespasser without notice. Loomis v. Terry, 17 Wend. (N. Y.)
496.
7 Earl v. Van Alstine, 8 Barb. (N. Y.) 630.
Barnum v. Vandusen, 16 Conn. 200; Lyons v. Merrick, 105 Mass. 71;
Ward v. Brown, 64 111. 307; Tewksbury v. Bucklin, 7 N. H. 518.
Oakes v. Spaulding, 40 Vt. 347. Notice of vicious propensities of dog to
one of several joint keepers is notice to all. Hayes v. Smith, 8 Ohio Dec.
92.
10 Marsh v. Jones, 21 Vt. 378.
11 Tewksbury v. Bucklin, 7 N. H. 518; Rossell v. Cottom. 31 Pa. St. 525;
Eck v. Hocker, 75 111. App. 641. Liability of one temporarily harboring a
dog. O'Donnell v. Pollock, 170 Mass. 441, 49 N. E. 745; Bush v. Wathen
(Ky.) 47 S. W. 599. Sufficiency of evidence of harboring. Boylan v. Everett,
172 Mass. 453, 52 N. E. 541; Plurniner v. Ricker (Vt.) 41 Atl. 1045.
151) DOMESTIC ANIMALS.
the owner, 18 or habitually harbored, regardless of any question of
ownership. 13
SAME DOMESTIC ANIMALS.
151. In order to charge the owner of animals not confess-
edly dangerous for damage done by them, it is es-
sential to allege and prove that he had notice of
such harmful propensities, and that, knowing this,
he negligently permitted the injury to be inflicted. 1
Domestic animals, or those niansuetse naturse, under the common
law, were those in which an absolute property right might be vested,
but the term is now used to indicate those species of animals useful
to man which, either by nature or successive generations of cap-
tivity, have come to be generally regarded as peaceable and harm-
less, including horses, 2 cattle, 3 bees, 4 dogs, 6 etc.
Scienter.
To establish knowledge on the part of the owner of the danger-
ous character of the animal, it is sufficient to prove facts which
would indicate a vicious or dangerous disposition to a person of
ordinary observation and prudence. 6 Nor is it essential that pre-
vious instances of injury or viciousness should be numerous; three, 7
12 Mitchell v. Chase, 87 Me. 172, 32 Atl. 867.
is Bundschuh v. Mayer, 81 Hun, 111, 30 N. Y. Supp. 622; Shulz v. Grif-
fith, 103 Iowa, 150, 72 N. W. 445, 40 Lawy. Rep. Ann. 117.
151. iWormley v. Gregg, 65 111. 251; Vrooinan v. Lawyer, 13 Johns.
(N. Y.) 339; Earl v. Van Alstine, 8 Barb. (N. Y.) 630; Van Leuven v. Lyke,
1 N. Y. 515; Marsh v. Jones, 21 Vt. 378; Norris v. Warner, 59 111. App. 300;
Short v. Bohle, 64 Mo. App. 242, 2 Mo. App. Rep'r, 1103.
2 Cox v. Burbidge, 13 C. B. (N. S.) 430.
3 Vrooman v. Lawyer, 13 Johns. (N. Y.) 339.
4 Earl v. Van Alstine, 8 Barb. (N. Y.) 630.
B Perkins v. Mossman, 44 N. J. Law, 579; Woolf v. Chalker, 31 Conn.
121; Fairchild v. Bentley, 30 Barb. (N. Y.) 147.
Kittredge v. Elliott, 16 N. H. 77; Linnehan v. Sampson, 126 Mass.
506; Cockerham v. Nixon, 33 N. C. 269; Hayes v. Smith, 8 Ohio Dec. 92;
Trinity & S. Ry. Co. v. O'Brien (Tex. Civ. App.) 46 S. W. 389.
7 Wheeler v. Brant, 23 Barb. (N. Y.) 324; Bauer v. Lyons, 23 App. Div.
205, 48 N. Y. Supp. 729.
364 DANGEROUS INSTRUMENTALITIES. (Cll. 8
two, 8 or even one 9 instance may be sufficient, according to the cir-
cumstances or the nature of the injury. 10 The previous instances
of vicious conduct need not be entirely similar to the one for which
recovery is demanded. 11 It is sufficient if the previous act is of
such a character as to reasonably lead to the belief that the animal
is likely to do harm; 12 and so defendant's knowledge that his dog
had previously attacked sheep would impute to him a knowledge of
his mischievous nature sufficient to establish the scienter in an
action for injuries caused by the same dog biting plaintiff's horse. 13
In an action for worrying sheep, proof that the same dog had habit-
ually attacked men and hogs was held competent. 14 In general,
however, evidence of this nature is not conclusive of knowledge,
and should be submitted to the jury. 15 And it was so held in an
action for damage done to plaintiff's horse by a bull, evidence be-
ing received of a previous attack by the bull upon a man. 16 But
evidence that a dog habitually bit other animals will not support
an action for attacking a man. 17 Nor is the vicious propensity
of a dog, established by proof that at the command of his master
he was accustomed to drive trespassing cattle from the premises. 18
It has been held that the fact that a dog is commonly kept confined
is evidence from which the jury may infer knowledge of his vicious
character, 19 but it is submitted that this proposition would hold
s Buckley v. Leonard, 4 Denio (N. Y.) 500; McConnell v. Lloyd, 9 Pa. Super.
Ct. 25, 43 Wkly. Notes Cas. 245.
Loomis v. Terry, 17 Wend. (N. Y.) 496; Kittredge v. Elliott, 16 N. H.
77; Woolf v. Chalker, 31 Conn. 131.
10 Tupper v. Clark, 43 Vt. 200.
11 Pickering v. Orange, 2 111. 338, 492; Kittredge v. Elliott, 16 N. H. 77.
12 McCaskill v. Elliot, 5 Strob. (S. C.) 196; Byrne v. Morel (Ky.) 49 S. W.
193.
is Jenkins v. Turner, 1 Ld. Raym. 109. See, also, Hartley v. Harriinan,
1 Holt, N. P. 617.
i* Pickering v. Orange, 2 111. 338, 492.
is Turner v. Craighead, 83 Hun, 112, 31 N. Y. Supp. 369.
leCockerham v. Nixon, 33 N. C. 269.
IT Keigbtlinger v. Egan, 65 111. 235.
is Spray v. Ammermau, 66 111. 309.
iGoode v. Martin, 57 Md. 606; Flansburg v. Basin, 3 111. App. 531;
Godeau v. Blood. 52 Vt. 251; Warner v. Chamberlain, 7 Houst. 18, 30 Atl.
638.
151) DOMESTIC ANIMALS. 365
good only in the event that no other satisfactory explanation for
the confinement was forthcoming. When it appears that the ani-
mal was well known to be of a fierce and dangerous disposition, it
is not always necessary to point out previous instances of actual
injury to sustain an action for damage committed by it. 20
The knowledge of the servant becomes notice to the master only
where the former occupies a position making his admissions bind-
ing on the latter. 21
Contributory Negligence.
The fact that plaintiff was a technical trespasser on the premises
where he was injured will not prevent his recovery. 22 To sustain
the defense of contributory negligence, the fault of the complaining
party must have been a naturally proximate cause of the injury, 23
and so it was held that one who w r rongfully enters a yard, and is
injured by a dog kept there for the purpose of protection, cannot
recover. 24 It is doubtless imprudent to step on a dog's tail, but is
not necessarily such negligence on the part of plaintiff as will pre-
vent his recovery for a consequent bite. 25 As one may rightfully
assume that a vicious dog will not be allowed to run at large, it is
not negligence in a parent to permit his child to play with a strange
<3og on the street, nor for a person to tread on a dog's toes. 26 But
one who deliberately kicks, teases, or abuses a dog cannot legally
complain if he is consequently injured. 27
20 Earhart v. Youngblood, 27 Pa. St. 331; Flansburg v. Basin, 3 111. App.
531; Curtis v. Mills, 5 Car. & P. 489; Rider v. White, 65 N. Y. 54.
21 Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518; Clowdis v. Irrigation Co., 118
Cal. 315, 50 Pac. 373; Friedinann v. McGowan (Del. Super.) 42 Atl. 723;
Brown v. Green (Del. Super.) 42 Atl. 991; Baldwin v. Casella, L. R. 7
Exch. 325. And see Applebee v. Percy, L. R. 9 C. P. 647.
22 Marble v. Ross, 124 Mass. 44; Woolf v. Chalker, 31 Conn. 121; Loomis
v. Terry, 17 Wend. (N. Y.) 496; Rider v. White, 65 N. Y. 54; Shulz v.
Griffith. 103 Iowa, 150, 72 N. W. 445, 40 Lawy. Rep. Ann. 117.
23 ghehan v. Cornwall, 29 Iowa, 99.
z* Sarch v. Blackburn, 4 Car. & P. 297. And see Buckley v. Gee, 55 111.
App. 388.
25 Woolf v. Chalker, 31 Conn. 121.
26 Smith v. Pelah, 2 Strange, 1264.
27 Keightlinger v. Egan, 65 111. 235; Bush v. Wathen (Ky.) 47 S. W. 599.
366 DANGEROUS INSTRUMENTALITIES. (Cll. 8
SAME COMMUNICATING DISEASE.
152. In the absence of statute, a person may keep diseased
animals upon his own land without subjecting him-
self to liability for communicating the disease to
the healthy animals of his adjoining neighbor. 1
This is but an extension of the rule that sanctions the unqualified
use of one's own premises for any legitimate purpose, provided such
use stops short of being a nuisance. And one may keep diseased
animals as above stated, although he has knowledge that his neigh-
bor's healthy animals are liable to come upon the premises and
suffer infection, provided such neighbor is warned of the danger. 2
It would be otherwise, however, if he negligently permitted his dis-
eased cattle to transmit the disease by coming in contact with
other cattle outside his premises. 3 And it is a general rule that the
owner of diseased animals is liable for their transmission of the
disease while they are trespassing, whether such owner has knowl-
edge of their condition or not. 4 But in such case the scienter may
be proved, although not pleaded, to enhance the damages. 5 So,
also, where contagion and injury result from reliance on misrepre-
sentations made by the owner of diseased animals, recovery may be
had; as where the owner of land upon which a licensee had pastured
diseased sheep relied upon the misrepresentations of the latter that
the pasture was free from contagion. 6
In the sale of infected animals the rule of caveat emptor applies, 7
unless the buyer w r as misled or put off his guard either by misrepre-
sentation or fraud. 8
152, iFisher v. Clark,- 41 Barb. (N. Y.) 329.
2 Walker v. Herron, 22 Tex. 55; Fisher v. Clark, 41 Barb. (N. Y.) 329.
3 Earp v. Faulkner, 34 Law T. (N. S.) 284; Fultz v. Wycoff, 25 Ind. 321;
Hite v. Blandford, 45 111. 9; Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756.
And see, also, Selvege v. Railway Co., 135 Mo. 163, 36 S. W. 652; Croff v.
Cresse. 7 Okl. 408, 54 Pac. 558.
4 Barnum v. Vandusen, 16 Conn. 200; Anderson v. Buckton, 1 Strange, 192.
e Barnum v. Vandusen, 16 Conn. 200.
e Eaton v. Winnie, 20 Mich. 157.
7 Hill v. Balls, 2 Hurl. & X. 299.
s Mullett v. Mason, L. R. 1 C. P. 559.
153) FIREARMS. 367
FIREARMS.
153. The bearer of loaded firearms is bound to exercise the
utmost diligence in their handling, and he is liable
for any injury caused by their discharge, unless it
appear that he was entirely without fault. 1
The degree of diligence requisite to constitute ordinary care is
proportioned to the danger to be apprehended. As the danger to
be apprehended from the possible discharge of a gun directed to-
wards another person in near proximity is of the gravest nature,
practically a certainty, the law exacts the highest degree of care
of the person handling it. Under the old common-law procedure
an action for trespass vi et armis did not admit of the defense of
inadvertence or absence of intent. To relieve himself of liability,
the defendant was obliged to show that the injury was inevitable,
and occurred without the slightest fault on his part; and it wa&
so held where the defendant, a soldier, had accidentally shot a
comrade while exercising, 2 and likewise where defendant's gun was
accidentally discharged in some unexplained manner, and killed
plaintiff's mare. 3 And where defendant, drawing a pistol in a
crowded room, accidentally discharged it, and killed plaintiff's
husband, it was held that the circumstances brought the action
within the statute providing civil damages for death caused by
"willful neglect." * But one using firearms in a wilderness need
not exercise the same extreme care required in a populous neigh-
borhood; 5 although a hunter may be liable for shooting another,
153. i Morgan v. Cox, 22 Mo. 373; Seltzer v. Saxton, 71 111. App. 229;
Chaddock v. Tabor, 115 Mich. 27, 72 N. W. 1093. Necessity of averment
of absence of contributory negligence of plaintiff. Kleineck v. Reiger (Iowa>
78 N. W. 39.
2 Weaver v. Ward, Hob. 134. See, also, Underwood v. Hewson, 1 Strange,
596.
s Tally v. Ayres, 3 Sneed (Tenn.) 677. And see Chataigne v. Bergeron, 10'
La. Ann. 699; Castle v. Duryee, *41 N. Y. 169, 32 Barb. (N. Y.) 480.
i Chiles v. Drake, 2 Mete. (Ky.) 146, 154. At a fox hunt, defendant tried
to shoot the fox, and killed plaintiff's dog. Wright v. Clark, 50 Vt. 130.
5 Bizzell v. Booker, 16 Ark. 308. And see People v. Chappell, 27 Mich.
486, for construction of statute as to negligent use of firearms in MICHIGAN..
368 DANGEROUS INSTRUMENTALITIES. (Ch. 8
even if he did not know of his presence. 6 One who negligently dis-
charges firearms upon or near the highway is liable for resulting in-
juries, although such injuries are induced by fright, and are not
caused by the missile; as, where plaintiff's horse was frightened
by the report of a gun, and ran away, and broke the carriage. 7 The
extreme rigor of the foregoing rule, which practically holds one
liable for all injuries caused by a firearm while in his possession
or under his control, is seen in an English case decided early in
the present century. The defendant, having occasion to use his
loaded gun, sent his servant to the keeper in whose possession it
was, with instruction to the latter to remove the priming, and
send it by the servant. The priming was removed, and the gun
given to the servant, who took it to the kitchen, and, knowing that
the priming had been removed, aimed it in sport at plaintiff's child,
when it was discharged, and seriously wounded the latter. The
latter was allowed to recover, the court saying: "* * * And,
though it was the defendant's intention to prevent all mischief,
and he expected that this would be effectuated by taking out the
priming, the event has unfortunately proved that the order to Leman
was not sufficient. Consequently, as by this want of care the in-
strument was left in a state capable of doing mischief, the law will
hold the defendant responsible." 8
EXPLOSIVES.
154. The degree of care required in keeping or using ex-
plosives is proportionate to the danger and the dam-
age probably resultant on their explosion.
One who keeps nitroglycerine, powder, or other explosives is bound
to use diligence commensurate with the danger involved in the
keeping; and, as the danger may increase according to the amount
stored, negligence may be predicated upon the quantity, without re-
gard to the manner in which it is protected. And it has accord-
ingly been held erroneous to charge that the defendant is not liable
e Hankins v. Watkins, 77 Hun, 360. 28 N. Y. Supp. 867.
7 Cole v. Fisher, 11 Mass. 137.
s Dixon v. Bell, 5 Maule & S. 198. See, also, Babel v. Manning, 112 Mich.
24, 70 N. W. 327, 36 Lawy. Rep. Ann. 523.
155) POISONS. 269
unless it is found that the manner in which he kept the explosive
was negligent. 1 But when the defendant carrier is ignorant of the
fact that he is carrying a dangerous explosive, he is chargeable with
ordinary care only. 2 But where one intrusts, without warning,
to the care of another, a dangerous substance or instrumentality,
whose true nature is not apparent, he is liable for results injurious
to the bailee or third persons. 3 And to sustain a recovery in such
circumstances it is sufficient to show that the defendant had knowl-
edge of the dangerous nature of the substance, while the bailee
had not. 4 It is not necessary to show any deception on the part
of the defendant. 5
POISONS.
155. A very high degree of care is required of those deal-
ing in or handling poisons.
Apothecaries and others dealing in or handling poisons or other
mischievous material are obligated to a very high degree of care
to guard against any injury to others arising from their use. And
if one sells a poisonous substance, which he has negligently mis-
labeled, thereby causing injury to a third person, the latter, or his
personal representatives, may recover therefor. 1 Or if a person
negligently exposes a poison under such circumstances that it is
154. iHeeg v. Licht, 80 N. Y. 579. See. also, Mills v. Railway Co., 1
Marv. 209. 40 Atl. 1114; St. Mary's Woolen Mfg. Co. v. Bradford Glycerine
Co., 14 Ohio Cir. Ct. 522, 7 Ohio Dec. 582; Kinney v. Koopman, 116 Ala.
310, 22 South. 593; Rudder v. Koopman, 116 Ala, 332, 22 South. 601; Simon
v. Henry (N. J. Sup.) 41 Atl. 692. Joint liability for injuries. Prussak v.
Hutton. 30 App. Div. 66, 51 N. Y. Supp. 761. Injunction to restrain keeping
and vending of dynamite in thickly-settled community. McDonough v. Roat,
8 Kulp (Pa.) 433.
2 Parrot v. Wells, Fargo & Co., 15 Wall. 524.
s Farrant v. Barnes, 11 C. B. (N. S.) 553; Brass v. Maitland, 6 El. & Bl.
470.
* Brass v. Maitland, 6 El. & Bl. 470; Williams v. East India Co., 3 East,
192. As to liability of vendor of explosive oil under MASSACHUSETTS stat-
ute, see Hourigan v. Xowell, 110 Mass. 470.
6 Farrant v. Barnes, 11 C. B. (N. S.) 553.
155. iNorton v. Sewall, 106 Mass. 143; Callahan v. Warne, 40 Mo. 131;
Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543. See, also, Wise v. Mor-
gan (Tenn. Sup.) 48 S. W. 971.
BAR.NEG. 24
370 DANGEROUS INSTRUMENTALITIES. (Ch. 8
likely to do harm to others, he is responsible for the consequences. 2
And in cases of this class it is not essential that any privity exist
between the negligent person and the one who was injured. In the
case of Thomas v. Winchester, 3 a manufacturer and dealer in vege-
table extracts was sued by a stranger for damages suffered by the
use of one of these preparations labeled as extract of dandelion, a
harmless medicine, but which was in fact extract of belladonna, a
poison, and a recovery was allowed. But liability attaches to the
manufacturer, vendor, or custodian of poisons, 4 spoiled food, 5 or
materials otherwise dangerous, 6 only when he has been negligent. 7
And so where a manufacturer used a dye, reasonably supposed to
be harmless, and a purchaser of cloth colored by the material was
poisoned thereby, the latter was not allowed to recover. 8
2 Crowhurst v. Board, 4 Exch. Div. 5; Kennedy v. Ryall, 67 N. Y. 379.
s 6 N. Y. 397. And see Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543.
* Walton v. Booth, 34 La, Ann. 913 (sulphate of zinc sold as Epsom salts) ;
Brown v. Marshall, 47 Mich. 576, 11 N. W. 392; Norton v. Sewall, 106 Mass.
143; Gwynn v. Duffield, 66 Iowa, 708, 24 N. W. 523. When a physician on a
steamer gave calomel instead of quinine, the natural confusion aboard the
ship was held to negative negligence. Allan v. Steamship Co., 132 N. Y. 91,
30 N. E. 482.
o Craft v. Parker, Webb & Co., 96 Mich. 245, 55 N. W. 812; contaminated
water, Buckingham v. Water Co., 142 Pa. St. 221, 21 Atl. 824.
As chloride of lime stored in a vessel. Brass v. Maitland, 6 El. & Bl. 470.
' In KENTUCKY it would appear that the liability is absolute, regardless
of any question of negligence. Fleet v. Hollenkemp, 13 B. Mon. 219.
Gould v. Woolen Co., 147 Mass. 315, 17 N. E. 531.
156) NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. 371
CHAPTER IX.
NEGLIGENCE OF ATTORNEYS, PHYSICIANS, AND PUBLIC OFFICERS.
156. Negligence of Attorneys.
157. Damage Essential to Liability.
158. Negligence of Physicians.
159. Burden of Proof Evidence Pleading.
160. Negligence of Public Officers Governmental Officers.
161. Ministerial Officers.
162. Sheriffs and Constables.
163. Notaries Public.
164. Clerks of Court and Registers of Deeds.
NEGLIGENCE OF ATTORNEYS.
156. A lawyer is liable to his client for failure to possess
such reasonable knowledge of the law, and to em-
ploy such diligence in its application to the matter
in hand, as is common among members of the legal
profession in that locality in similar circumstances.
"It would be extremely difficult to define the exact limit by which
the skill and diligence which an attorney undertakes to furnish
in the conduct of a case is bounded, or to trace precisely the divid-
ing line between that reasonable skill and diligence which appears
to satisfy his undertaking, and that crassa negligentia, or lata culpa,
mentioned in some of the cases, for which he is undoubtedly re-
sponsible. The cases, however, which have been cited and com-
mented on at the bar, * * * appear to establish, in general, that
he is liable for the consequences of ignorance or nonobservance of
the rules of practice of this court, 1 for the want of care in the prepa-
ration of the cause for trial, 2 or of attendance thereon with his wit-
nesses, and for the mismanagement of so much of the conduct of
156. iCaldwell v. Hunter, 10 Q. B. 69, 83; Bracey v. Carter, 12 Adol.
& E. 373. Negligently suffering judgment by default. Godefroy v. Jay, 7
Bing. 413; Hoby v. Built, 3 Barn. & Adol. 350.
2 Or bringing an action in a court not having jurisdiction. Williams v.
Gibbs, 6 Xev. & il. 788; Cox v. Leech, 1 C. B. (N. S.) 617.
372 NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. (Ch. 9
a cause as is usually and ordinarily allotted to his department of
the profession; whilst, on the other hand, he is not answerable
for error in judgment upon points of new occurrence or of nice or
doubtful construction." 8
The attorney is not bound to be absolutely accurate or exact, or
to be familiar with abstruse, or unusual, or new points.* "God for-
bid," said the learned Chief Justice Abbott, "that it should be im-
agined that an attorney, or a counsel, or even a judge, is bound to
know all the law." 5 The English attorney or solicitor is essentially
the same as an American lawyer, and is required to exercise such
diligence as is common with members of good standing in the pro-
fession, in similar circumstances. 6 He must exercise reasonable
care and diligence only, 7 unless there has been an express stipula-
tion for a higher degree of care. 8 It follows as of course that he
cannot be liable for mistake on a debatable point, not yet settled
in the courts, or one on w r hich reputable and well-informed lawyers
3 Tindal, C. J., In Godefroy v. Dalton, 6 Bing. 460, 467. An action for pro-
fessional negligence will not lie against a barrister. Swinfen v. Chelrnsford,
5 Hurl. & N. 890. See, also, Malone v. Gerth, 100 Wis. 166, 75 N. W. 972 - r
Lawall v. Groman, 180 Pa. St. 532, 37 Atl. 98.
* Godefroy v. Dalton, 6 Bing. 460; Morrison v. Burnett, 56 111. App. 129.
6 In Montriou v. Jefferys, 2 Car. & P. 113. And in Pitt v. Yalden, 4 Bur-
rows, 2060, Lord Mansfield said: "That part of the profession which is-
carried on by attorneys is liberal and reputable, as well as useful to the
public, when they conduct themselves with honor and integrity; and they
ought to be protected where they act to the best of their skill and knowl-
edge. But every man is liable to error, and I should be very sorry that it
should be taken for granted that an attorney is answerable for every error
or mistake. * * * A counsel may mistake as well as an attorney. Yet
no one will say that a counsel who has been mistaken shall be charged with
the debt. * * * Not only a counsel, but judges, may differ, or doubt, or
take time to consider. Therefore an attorney ought not to be liable in cases
of reasonable doubt." And see Laidler v. Elliott, 3 Barn. & C. 738.
e Kepler v. Jessupp, 11 Ind. App. 241, 37 N. E. 655; Isham v. Parker, 3-
Wash. St. 755, 29 Pac. 835; Holmes v. Peck, 1 R. I. 242; Stevens v. Walker,
55 111. 151; Wilson v. Russ, 20 Me. 421; Stubbs v. Beene's Adm'r, 37 Ala.
627; Gambert v. Hart, 44 Cal. 542.
T O'Barr v. Alexander, 37 Ga. 195; Kepler v. Jessupp, 11 Ind. App. 241, 37
N. E. 655; Wilson v. Russ, 20 Me. 421; Strodtinan v. Menard Co., 56 I1L
App. 120; Morrison v. Burnett, 56 111. App. 129.
s Babbitt v. Burnpus, 73 Mich. 331, 41 N. W. 417.
156) NEGLIGENCE OF ATTORNEYS. 373
hold conflicting opinions. 9 The early standard acquitted the attor-
ney if he acted honestly, and to the best of his ability, 10 but he ia
now held to a much higher degree of care and skill, which must,
at least, compare reasonably with that of good practitioners at the
same bar. He has accordingly been held liable in the following,
among many other, cases: In not commencing an action against
a debtor in failing circumstances; 11 or in time to avoid a bar by
the statute of limitations; 12 or to properly conduct an appeal; 13
or in failing to notify client of an impending tax sale; 14 or to properly
prepare a mechanic's lien; 15 or for failure, in an action for divorce, to
take proper and customary steps to prevent the decree being subse-
quently opened; 16 for failing to observe the omission of the word
"hundred," usually printed in the form of writ, and to insert it,
thereby causing the loss of the debt; 17 for advising his client, un-
necessarily, to relinquish his claim for the reimbursement of money
which he had paid out as surety. 18 In general, in an action to re-
cover for professional services, any evidence of negligence or want of
skill in conducting the case, which, by reasonable inference, tended
Watson v. Muirhead, 57 Pa. St. 161; Citizens' Loan, Fund & Savings
Ass'n v. Friedley, 123 Ind. 143, 23 N. E. 1075; Potts v. Button, 8 Beav. 493;
Taylor v. Gorman, 4 Ir. Eq. 550; Wilson v. Tucker, 3 Starkie, 154; Drax
v. Scroope, 2 Barn. & Adol. 581; Stannard v. Ullithorne, 10 Bing. 491. And
one is justified in relying on a decision of the supreme court of his state,
so long as it is not overruled. Marsh v. Whitmore, 21 Wall. 178; Hastings
v. Halleck, 13 Cal. 204.
10 Lynch v. Com., 16 Serg. & R. (Pa.) 368; Crosbie v. Murphy, 8 Ir. C. L.
301; Gilbert v. Williams, 8 Mass. 51; although he was held liable for gross
negligence, Baikie v. Chandless, 3 Camp. 17; Elkington v. Holland, 9 Mees.
& W. 659. Expression of opinion as to the amount likely to be realized at
judicial sale as creating liability. Reumping v. Wharton (Neb.) 76 N. W.
1076.
11 Rhines' Adm'rs v. Evans, 66 Pa. St. 192.
12 FOX v. Jones (Tex. App.) 14 S. W. 1007; King v. Fourchy, 47 La. Ann,
354, 16 South. 814; Drury v. Butler, 171 Mass. 171, 50 N. E. 527.
is Jamison v. Weaver, 81 Iowa, 212, 46 N. W. 996.
" Wain v. Beaver, 161 Pa. St. 605, 29 Atl. 114.
IB Joy v. Morgan. 35 Minn. 184, 28 N. W. 237.
is Von Wallhoffen v. Newcombe, 10 Hun (N. Y.) 236.
IT Varnum v. Martin, 15 Pick. (Mass ) 440.
is Cochrane v. Little, 71 Md. 323, 18 Atl. 698.
374 NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. (Cll. 9
to prejudice the client's case, is admissible in defense, 19 but not if
the carelessness or lack of skill has been excused. 20
The requisite degree of care and skill must be computed by com-
parison in similar circumstances. 21 "A metropolitan standard is
not to be applied to a rural bar." 22 If the relation of client and
attorney exists, to maintain an action against the former for neg-
ligence it is not essential that the service was performed for com-
pensation; the liability may be incurred even if the service was
gratuitous. 28
In the examination of titles due diligence should be observed,
and the records closely scrutinized. Mistakes arising from failure
in this respect, as failure to note the existence of an incumbrance, 24
will render the attorney liable. 25 He is likewise liable for negligence
in preparing and recording instruments. 26
i 2 Greenl. Ev. 143. And see, also, Caverly v. MeOwen, 123 Mass. 574;
Huntley v. Bulwer, 6 Bing. N. C. Ill; Hopping v. Quin, 12 Wend. (N. Y.)
517; Weed v. Bond, 21 Ga. 195; Bowman v. Tallman, 2 Rob. (N. Y.) 385;
Lewis v. Samuel, 8 Q. B. 685; Hill v. Allen, 2 Mees. & W. 283; Newman v.
Schueck, 58 111. App. 328; Struckmeyer v. Lamb, 64 Minn. 57, 65 N. W. 930.
20 Gleason v. Kellogg, 52 Vt. 14; Can's Ex'x v. Glover, 70 Mo. App. 242.
21 Hart v. Frame, 6 Clark & F. 193; Stannard v. Ullithorne, 10 Bing. 491;
Gambert v. Hart, 44 Cal. 542; W T alpole's Adm'r v. Carlisle, 32 Ind. 415;
Bowman v. Tallman, 2 Rob. (N. Y.) 385; Watson v. Muirhead, 57 Pa. St. 161.
22 Weeks, Attys. 289; Pennington's Ex'rs v. Yell, 11 Ark. 212.
2 s Donaldson v. Haldane, 7 Clark & F. 762. But erroneous advice given
offhand to a stranger, without compensation, does not carry liability. Fish
v. Kelly, 17 C. B. (N. S.) 194. Qne falsely holding himself out as an attorney
is accountable to his client with the same strictness as though he were an at-
torney. Miller v. Whelan, 158 111. 544, 42 N. E. 59.
24 Pennoyer v. Willis (Or.) 32 Pac. 57; or at least the question of negli-
gence will be for the jury, Pinkston v. Arrington, 98 Ala. 489, 13 South. 561.
25 Watson v. Muirhead, 57 Pa. St. 161; Gore v. Brazier, 3 Mass. 523;
Sprague v. Baker, 17 Mass. 586; Chase v. Heaney, 70 111. 268; Byrnes v.
Palmer, 18 App. Div. 1, 45 N. Y. Supp. 479.
26 Stott v. Harrison, 73 Ind. 17; Miller v. Wilson, 24 Pa. St. 114; preparing
instruments, Elkington v. Holland, 9 Mees. & W. 659; White v. Reagan, 32
Ark. 281.
158) NEGLIGENCE OF PHYSICIANS. 875
SAME DAMAGE ESSENTIAL TO LIABILITY.
157. As in all other actions for negligence, damage prox-
imately resulting from the carelessness complained
of must be proved.
To sustain an action for negligence, it must appear reasonably
certain that, had due diligence and skill been observed, the result
would have been more favorable to the client. 1 Thus, if it is
claimed that the attorney failed to use certain facts which had
been communicated to him by the client, it must appear that they
were susceptible of proof, and that, when proved, they would have
varied the result. 2 But negligence cannot be proved by the opinion
of another attorney. 3 To constitute negligence in failing to take
an appeal, it must appear that, had it been taken, it would have
been sustained. 4
The measure of damages is the amount actually lost by the neg-
ligence of the attorney. 5
Ordinarily, the question of negligence is for the jury, under proper
instruction from the court. 6
NEGLIGENCE OF PHYSICIANS.
158. The implied undertaking of a physician or surgeon is
to have and to employ such reasonable skill and
diligence as are ordinarily possessed and exercised
in the profession by thoroughly educated physicians
and surgeons in the particular locality.
157. i Although -the mere fact that another course might have been more
advantageous to the client, is no proof of negligence, it appearing that the
attorney acted in good faith. Harriman v. Baird, 6 App. Div. 518, 39 N. Y.
Supp. 592.
2 Hastings v. Halleck, 13 Cal. 204.
3 Gambert v. Hart, 44 Cal. 542.
* Hays v. Ewing, 70 Cal. 127, 11 Pac. 602.
s Dearborn v. Dearborn, 15 Mass. 316; Huntington v. Rumnill, 3 Day (Conn.)
390; 2 Greenl. Ev. 146; Lawall v. Groman, 180 Pa. St. 532, 37 Atl. 98.
Pennington's Ex'rs v. Yell, 11 Ark. 212; Pinkston v. Arrington, 98 Ala.
489, 13 South. 561; Hunter v. Caldwell, 10 Q. B. 69. And see Gambert v. Hart,
44 Cal. 542; Abeel v. Swann, 21 Misc. Rep. 677, 47 N. Y. Supp. 1088.
376 NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. (Ch. 9
A physician may make a special contract to perform an absolute
cure, 1 but, in the absence of such agreement, he does not insure
that his treatment will be successful, or even beneficial; 2 and a
failure to effect a cure does not raise a presumption of want of skill
or failure to exercise due diligence. 3 When, however, the failure
to employ ordinary skill and diligence, due regard being had to the
nature of the ailment and the standard of skill in the locality, re-
sults harmfully to the patient, the physician is liable for negli-
gence. 4 The injury, however, need not be physical; actionable neg-
ligence may be predicated on an incorrect diagnosis, although treat-
ment is neither asked nor given. 5 Not only must the medical prac-
titioner use ordinary care and diligence, but he must be possessed
of at least the ordinary skill and attainments of the profession.
It has accordingly been held erroneous to instruct a jury that it was
"entirely immaterial to the inquiry whether defendant, at the time
he undertook the reduction of the dislocation, was or was not re-
puted to be, or was or was not, a skillful surgeon"; the court saying
that, having undertaken a matter requiring skill and care, he was
liable for the omission to exercise it. 6
Although the law does not require the highest degree of skill
and science, 7 yet in estimating the standard of due care regard must
158. i See Leighton v. Sargent, 7 Fost. (N. H.) 460; Van Skike v. Potter,
53 Neb. 28, 73 N. W. 295. But an undertaking to "set, dress, take care of, and
manage, as such physician and surgeon, said broken bone, in a proper, prudent,
and skillful manner," is not a contract to effect a cure. Reynolds v. Graves,
3 Wis. 416.
2 Ewing v. Goode, 78 Fed. 442.
Lawson v. Conaway, 37 W. Va. 159, 16 S. E. 564; Wurdemann v. Barnes,
92 Wis. 206, 66 N. W. 111.
Landon v. Humphrey, 9 Conn. 209; Carpenter v. Blake, 60 Barb. (N. Y.)
488; McNevins v. Lowe, 40 111. 209; Gramm v. Boener, 56 Ind. 497. Actual
injury must result from the malpractice, to constitute actionable negligence.
Ewing v. Goode, 78 Fed. 442.
e Harriott v. Plimpton, 166 Mass. 585, 44 N. E. 992.
e Carpenter v. Blake, 60 Barb. (N. Y.) 488. And see Cayford v. Wilbur, 86
Me. 414, 29 Atl. 1117.
7 Cayford v. Wilbur, 86 Me. 414, 29 Atl. 1117; McCandless v. McWha, 22
Pa. St. 261, approved in Smothers v. Hanks, 34 Iowa, 286; Leighton v. Sargent,
7 Fost. (N. H.) 460; Peck v. Hutchinson, 88 Iowa. 320, 55 X. W. 511; McNev-
ins v. Lowe, 40 111. 209; Wood v. Clapp, 4 Sneed (Tenn.) 65; Hewitt v. Eisen-
bart, 36 Neb. 794, 55 N. W. 252; Lawson v. Conaway, 37 W. Va. 159, 16 S. E.
158) NEGLIGENCE OF PHYSICIANS. 377
"be had to the advanced stage of the profession at the time; many
of the methods formerly in vogue as indiscriminate and extensive
blood-letting being no longer recognized by legitimate practition-
ers. And so the standard of ordinary care and skill may vary, even
in the same state, according to the greater or less opportunity af-
forded by the locality for observation and practice, from which
alone the highest skill can be acquired. 8
Errors of judgment do not constitute legal negligence in the prac-
tice of medicine, 9 provided they are not made on a point which is
well settled in the profession. 10 Nor is a physician in general
practice liable for failure to call in a specialist to treat a disease
not arising from his lack of skill in handling the original case. 11
The different "schools" of medicine are not recognized as such
in the courts. All systems of medicine are recognized in law, and
the physician is required to regulate his practice according to the
system which he elects and professes to follow. Thus the requisite
degree of care and skill required of a homeopathic physician must
be estimated according to the precepts and standards of that
school, 12 and evidence to prove that defendant's treatment of a case
vas according to the botanic system of practicing medicine, which
he professed and was known to follow, is admissible. 13 It is true,
564; Tefft v. Wilcox. 6 Kan. 46. And see Carpenter v. Blake, 60 Barb. (N. Y.)
488; Degnan v. Ransom, 83 Hun, 267, 31 N. Y. Supp. 966.
s Smothers v. Hanks, 34 Iowa, 286; Hewitt v. Eisenbart, 36 Neb. 794, 55
:N. W. 252; Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511; Whitesell v. Hill
Uowa) 66 X. W. 894; Pelky v. Palmer, 109 Mich. 561, 67 N. W. 561; McCracken
v. Smathers, 122 N. C. 799, 29 S. E. 354.
McClallen v. Adams, 19 Pick. (Mass.) 333. And see Twombly v. Leach, 11
Cush. (Mass.) 397. That information, and not treatment, was requested, will
not excuse physician for mistaken diagnosis. Harriott v. Plimpton, 166 Mass.
585, 44 X. E. 992.
10 Carpenter v. Blake, 60 Barb. (N. Y.) 488: Patten v. Wiggin, 51 Me. 594.
11 Jones v. Vroom, 8 Colo. App. 143, 45 Pac. 234.
12 Force v. Gregory, 63 Conn. 167, 27 Atl. 1116. And see Buruham v.
Jackson, 1 Colo. App. 237, 28 Pac. 250; Martin v. Courtney (Minn.) 77 X. W.
S13.
is Bowman v. Woods, 1 G. Greene (Iowa) 441; Com. v. Thompson, 6 Mass.
134; Patten v. Wiggin, 51 Me. 594; fractures near elbow joint, Wilmot v.
Howard, 39 Vt. 447; fractures near shoulder, Baird v. Morford, 29 Iowa, 531;
fractures near wrist, Smothers v. Hanks, 34 Iowa, 286; Ritchey v. West, 23
378 NEGLIGKXCE OF ATTORNEYS, PHYSICIANS, ETC. (Cll. 9
however, that certain principles of medicine are so well known and
universally received that to ignore them would be negligence in
law, no matter what the practice might be in the particular school
to which the physician might belong. 14
The right of the state to provide rules and tests for ascertain-
ing the qualifications of applicants for authority to practice medi-
cine is a proper exercise of the police power, which is constantly
used by the legislatures. Such statutes do not modify the laws of
negligence as applied to those licensed to practice thereunder; and
if a person, acting as a medical practitioner, is guilty of malprac-
tice, he is none the less liable because he has not conformed with
the law. 16
SAME BURDEN OF PROOF EVIDENCE PLEADING.
159. The burden of proving the essential elements of neg-
ligence rests on the plaintiff in cases of malpractice,
as in all other actions of a similar nature.
111. 385; Scudder v. Crossan, 43 Ind. 343; Stevenson v. Gelsthorpe, 10 Mont.
563, 27 Pac. 404; fractures near ankle, Almond v. Nugent, 34 Iowa, 300; and
generally as to fractures, Young v. Mason, 8 Ind. App. 264, 35 N. E. 521;
Gedney v. Kingsley, 62 Hun, 620, 16 N. Y. Supp. 792; dislocation, Carpenter
v. Blake, 60 Barb. (N. Y.) 488; "Colics' fracture," Link v. Sheldon, 136 N. Y.
1. 32 N. E. 696; amputation, Alder v. Buckley, 1 Swan (Tenn.) 69; Howard v.
Grover, 28 Me. 97. One of the most celebrated malpractice cases, in which the
alleged malpractice consisted in opening an abscess, is Walsh v. Sayre, 52 How.
Prac. (N. Y.) 335. Failure to discover serious rupture of perineum, Lewis v.
Dwinell, 84 Me. 497, 24 Atl. 945; obstetric cases, Gcannis v. Brandeu, 5
Day (Conn.) 260 ; frost bite, Kay v. Thomson, 10 Am. Law Reg. (N. S.) 594;
Patten v. Wiggin, 51 Me. 594; liability of hospital physician for nurse, Perio-
nowsky v. Freeman, 4 Fost. & F. 977; vaccination, Landon v. Humphrey, 9 1
Conn. 209; felons, Twombly v. Leach, 11 Cush. (Mass.) 397; erysipelas, Coch-
ran v. Miller, 13 Iowa, 128; medical cases, Peck v. Martin, 17 Ind. 115; Com.
v. Thompson, 6 Mass. 134; Rex v. Long, 4 Car. & P. 398-423; liability of one
holding himself out as a physician, Matthei v. Wooley, 69 111. App. 654.
i* As failure to remove the placenta after childbirth. Lynch v. Davis, 12
How. Prac. (N. Y.) 323; Moratzky v. Wirth, 67 Minn. 46. 69 N. W. 480.
is Ruddock v. Lowe, 4 Fost. & F. 519, note a, p. 521; Jones v. Fay, Id. 525,
note a, p. 526. As to diploma as evidence of competency under statute and at
common law. see Stough v. State, 88 Ala. 234, 7 South. 150; Townsheud v.
Gray, 62 Vt. 373, 19 Atl. 635.
160) NEGLIGENCE OF PUBLIC OFFICERS. 379
Burden of Proof.
When the ignorance or lack of skill of the defendant is alleged, it
must be proved. 1 In such cases proof of general skill is admissible r
but ordinarily, where the issue is upon the treatment of a particular
case, such evidence is not competent for the defense. 2
Evidence,
Contributory negligence, either by way of pre-existing bodily con-
ditions or failure to follow the directions of the defendant, is al-
ways proper matter of defense, as the failure to keep an injured
limb in a state of perfect quiet, thereby retarding or preventing re-
covery; 3 or the excessive use of alcoholic stimulants within a
period not too remote to influence the patient's recovery.*
Pleading.
It is not essential that the complaint specifically allege negligence
if the facts set out will fairly warrant no other conclusion than a
lack of ordinary care and skill. 5
NEGLIGENCE OF PUBLIC OFFICERS GOVERNMENTAL
OFFICERS.
160. Governmental officials are responsible only to the
public at large, and their negligent acts in the per-
formance of their duties cannot become the subject
of private actions.
For purposes of convenience public officials may be separated into
two general groups or classes: Those who serve the public col-
lectively as a body, and those who serve the public distributively
159. i Scudder v. Crossan, 43 Ind. 343; Kendall v. Brown, 86 111. 387.
And see Pelky v. Palmer, 109 Mich. 561, 67 N. W. 561; Ewing v. Goode, 78
Fed. 442. In Iowa the burden of proof appears to be on plaintiff to prove his
freedom from contributory negligence. Whitesell v. Hill, 66 N. W. 894.
2 Holtzman v. Hoy, 118 111. 534, 8 N. E. 832; Mertz v. Detweiler, 8 Watts
& S. (Pa.) 376; Lacy v. Kossuth Co., 106 Iowa, 16, 75 N. W. 689. Admissi-
bility of nonexpert evidence. Williams v. Nally (Ky.) 45 S. W. 874.
3 Geiselman v. Scott, 25 Ohio St. 86. See, also, Whitesell v. Hill (Iowa) 66
N. W. 894; Richards v. Willard, 176 Pa. St. 181, 35 Atl. 114.
* McCandless v. McWha, 25 Pa, St. 95.
5 Crowty v. Stewart, 95 Wis. 490, 70 N. W. 558; Williams v. Nally (Ky.) 45
S. W. 874.
380 NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. (Ch. 9
as individuals. Within the first division are included all govern-
mental officials, both legislative, executive, and judicial, with all
their subordinates and agents through whom the functions of gen-
eral government are performed. Their duties are administrative,
and are performed for the public at large. They enjoy a kind of
sovereignty. Hence the acts of these officers as agents and repre-
sentatives of the government cannot be made the subject of pri-
vate actions by individuals who are personally aggrieved or injured
thereby. They must, however, keep within the limit of their pow-
ers, and abstain from malicious or corrupt acts. With this proviso
they are responsible to the people only l by public impeachment.
The sovereignty of the judiciary reaches even further, and renders
its members exempt from individual redress for their judicial acts,
although they may be conceived in oppression and corruption. 2 But
they may be held liable in a civil action if injury results from an
act clearly outside their jurisdiction. 3 In Houlden v. Smith * Pat-
terson, J., said: "Although it is clear that the judge of a court of
record is not answerable at common law in an action for an er-
roneous judgment, or for the act of any officer of the court wrong-
fully done, * * * yet we have found no authority for saying
that he is not answerable in an action for an act done by his com-
mand and authority when he has no jurisdiction."
SAME MINISTERIAL OFFICERS.
161. By virtue of their offices the law raises an implied
contract between ministerial officials and those in-
dividuals whom they serve, for the breach of which
contract they become liable.
To the second class of public officers belong all those whose du-
ties are purely ministerial; duties simple and definite, and with re-
spect to which nothing is left to discretion. 1 They include sheriffs
160. i Wright v. Defrees, 8 Ind. 298; Attorney General v. Brown, 1 Wis.
522.
2 Bradley v. Fisher, 13 Wall. 335; Rains v. Simpson, 50 Tex. 495.
a Bradley v. Fisher, 13 Wall. 335.
* 14 Q. B. 841.
1G1. i Friedman v. Mathes, 8 Heisk. (Tenn.) 488.
162) SHERIFFS AND CONSTABLES. 381
and constables, notaries public, clerks of court, and recorders of
deeds. These officers are required, by statutes governing the va-
rious offices which they fill, to perform certain designated duties
for any individual who may have occasion to resort to them, paying
any statutory fee which may be required for the service demanded.
For the performance of these duties the law raises an implied con-
tract between the officer and the individual, and the latter may re-
cover from the former any damages he may suffer from the failure
of the officer to perform the required duty.
SAME SHERIFFS AND CONSTABLES.
163. A sheriff is liable to the creditor named in the pro-
cess for any damage he may sustain through the
failure of the officer to exercise reasonable care and
diligence in its execution.
Compensatory damages cannot, of course, be recovered without
proof; but not even nominal damages can be recovered if it clearly
appears that no actual damage was suffered, 1 although, in the ab-
sence of proof as to actual damage, nominal damage may be re-
covered. 2
Liability to the creditor may generally be predicated upon the
failure of the officer to use ordinary care and diligence in the exe-
cution of any valid process. 3 What constitutes reasonable diligence
depends on the circumstances of the case, and is always a mixed
question of law and fac.t. 4 If the creditor directs immediate serv-
ice, informing the officer of the danger of delay, 5 greater diligence
162. i Wylie v. Birch, 4 Q. B. 566.
2 Humphrey v. Hathorn, 24 Barb. (N. Y.) 278; Selfridge v. Lithgow, 2 Mass.
374; Bales v. Wingfleld, 4 Q. B. 580, note a.
a Dorrance's Adm'rs v. Com., 13 Pa. St. 160; Wolfe v. Dorr, 24 Me. 104;
Barnard v. Ward, 9 Mass. 269; Peirce v. Partridge, 3 Mete. (Mass.) 44; Kitt-
redge v. Bellows, 7 N. H. 399; Sherrill v. Shuford, 32 N. C. 200; Watkinson v.
Bennington, 12 Vt. 404; Neal v. Price, 11 Ga. 297; Chittenden v. Crosby, 5
Kan. App. 534, 48 Pac. 209; Stiff v. McLaughlin, 19 Mont 300, 48 Pac. 232.
* Whitsett v. Slater, 23 Ala. 626.
6 Tucker v. Bradley, 15 Conn. 46; Smith v. Judkins, 60 N. H. 127; Peirce v.
Partridge, 3 Mete. (Mass.) 44; Eanlett v. Blodgett, 17 N. H. 298; Root v.
Wagner, 30 N. Y. 9.
382 NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. (Ch. 9
and speed is necessary, although, in general, the c-'ncer may exe-
cute the process at any time before the return day. But he must
make a true return, 7 and within the allotted time. 8 No right of ac-
tion for damages accrues to the individual whose property or per-
son is seized under execution of process, whenever it appears that
the writ is regular on its face, and that it was issued by a court of
competent jurisdiction in respect to the subject-matter, 9 provided
the writ does not disclose the actual want of jurisdiction in respect
to the person. 10
Unlawful Acts of Officer.
But for conduct under a defective writ, or for an unauthorized act,
the officer becomes liable to the individual against whom he pro-
ceeds; J1 as for unlawfully breaking into a person's house to make
a levy. 12 He is also liable when he makes a wrongful seizure, 13
e On the general subject of diligence, see Parrott v. Dearborn, 104 Mass.
104; Crosby v. Hungerford, 59 Iowa, 712, 12 N. W. 582.
7 Barnard v. Leigh, 1 Starkie, 43; Goodrich v. Starr, 18 Vt. 227; Blair v.
Flack, 62 Hun, 509, 17 N. Y. Supp. 64.
s Hawkins v. Taylor, 56 Ark. 45, 19 S. W. 305; Atkinson v. Heer, 44 Ark.
174, followed in Wilson v. Young, 58 Ark. 593, 25 S. W. 870. By statute,
Humphrey v. Hathorn, 24 Barb. (N. Y.) 278; Peck v. Hurlburt, 46 Barb.
<N. Y.) 559; Jenkins v. McGill, 4 How. Prac. (N. Y.) 205; McGregor v. Brown,
5 Pick. (Mass.) 170. But at common law he was not liable in an action for
failure to return the writ. Com. v. McCoy, 8 Watts (Pa.) 153; Moreland v.
Leigh, 1 Starkie, 388. The writ must be returned to the proper office. Frink
v. Scovel, 2 Day (Conn.) 480. Inability or failure to serve is no excuse for fail-
ure to return. Kidder v. Barker, 18 Vt. 454; Webster v. Quimby, 8 N. H. 382.
Goldis v. Gately, 168 Mass. 300, 47 N. E. 96; Muuns v. Loveland, 15 Utah,
250, 49 Pac. 743. See, also. Henline v. Keese, 54 Ohio St. 599, 44 N. E. 269,
56 Am. St. Rep. 36; Miller v. Hahn (Mich.) 74 N. W. 1051; O'Briant v. Wilker-
son, 122 N. C. 304, 30 S. E. 126; Sears v. Lydon (Idaho) 49 Pac. 122; Johnson
v. Randall (Minn.) 76 N. W. 791; State v. O'Neill (Mo. Sup.) 52 S. W. 240.
Invalidity of process as defense by officer sued for failure to make arrest.
Belcher v. Sheehan, 171 Mass. 513, 51 N. E. 19.
10 Orr v. Box, 22 Minn. 485; Savacool v. Boughton, 5 Wend. (N. Y.) 170.
11 Cases collected in McLendon v. State, 92 Tenn. 520, 22 S. W. 200.
12 Welsh v. Wilson, 34 Minn. 92, 24 N. W. 327; Thompson v. State, 3 Ind.
App. 371, 28 N. E. 996.
is Francisco v. Aguirre, 94 Cal. 180, 29 Pac. 495; McAllaster v. Bailey, 127
N. Y. 583, 28 N. E. 591; Tillman v. Fletcher, 78 Tex. 673, 15 S. W. 161; Walker
v. Wonderlick, 33 Neb. 504, 50 N. W. 445; Rogers v. McDowell, 134 Pa. St.
424, 21 Atl. 166; Harris v. Tenney, 85 Tex. 254, 20 S. W. 82; Allen v. Kirk,
162) SHERIFFS AND CONSTABLES. 383
and may be jointly liable with his deputy, 14 or with the plaintiff
in the original action. 15 The officer may also be liable to the de-
fendant for subjecting him to oppression or undue hardship, 16 or
for abusing process. 17 Liability likewise attaches when the sheriff
intentionally takes property not coyered by the writ. In such cases
he is a trespasser ab initio, and is liable for all consequences of an
unlawful entry and seizure. 18 * * * If the officer levies on and
sells property which he knows, or should know, is exempt under
the statute, he is liable to the debtor therefor. 18 The presumption
being that the debtor would claim the privilege of exemption be-
fore sale, an officer may, in general, defend an action for failure to
levy an execution on the ground that the debtor is a resident, and
that his property did not exceed in value the amount of the exemption
allowed by statute. 20
Sufficient Levy.
It is the duty of the sheriff to exercise sound judgment and dis-
cretion in estimating the amount of property necessary to realize
the demand of the writ, and for mistaken judgment in this respect
he is liable to neither the creditor nor the debtor, if the levy re-
si Iowa, 658, 47 N. W. 906; State v. Koontz. 83 Mo. 323; Palmer v. McMas-
ter, 10 Mont. 390, 25 Pac. 1056; Whitney v Preston, 29 Neb. 243, 45 N. W.
619. For measure of damages, see Collins v. State, 3 Ind. App. 542, 30 N. E.
12; Mitchell v. Corbin, 91 Ala. 599, 8 South. 810.
i* Frankhouser v. Cannon, 50 Kan. 621, 32 Pac. 379; Luck v. Zapp, 1 Tex.
Civ. App. 528, 21 S. W. 418; State v. Dalton, 69 Miss. 611, 10 South. 578.
is Jones v. Lamon, 92 Ga. 529, 18 S. E. 423.
is Wood v. Graves, 144 Mass. 365, 11 X. E. 567; Baldwin v. Weed, 17 Wend.
(N. Y.) 224; Page v. dishing, 38 Me. 523.
IT Holley v. Mix, 3 Wend. (X. Y.) 350.
is Grunberg v. Grant, 3 Misc. Rep. 230, 22 N. Y. Supp. 747. And see Wil-
liams v. Mercer, 139 Mass. 141, 29 N. E. 540; Armstrong v. Bell (Ky.) 42 S.
W. 1131; Hyde v. Kiehl, 183 Pa. St. 414, 38 Atl. 998; Sharp v. Lamy (Sup.)
55 N. Y. Supp. 784; Berwald v. Ray, 8 Pa. Super. Ct. 365, 43 Wkly. Notes
Cas. 217.
i Whittington v. Pence (Ky.) 38 S. W. 843, and 47 S. W. 877. And see Corry
v. Tate, 48 S. C. 548, 26 S. E. 794; Parker v. Canfield (Mich.) 74 N. W. 296;
Castile v. Ford, 53 Neb. 507, 73 N. W. 945; Second Nat. Bank of Monmouth v.
Gilbert, 174 111. 485, 51 N. E. 584. Duty of officer to acquaint debtor with
exemption rights. State v. Lindsay, 73 Mo. App. 473.
20 Moss v. Jenkins, 146 Ind. 589, 45 N. E. 789.
384 NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. (Ch. 9
suits in a deficiency or excess. 21 But the burden is on the officer
to show that he exercised a sound discretion, and, if there is suffi-
cient property of the debtor at hand to satisfy the debt, the officer
will be prima facie liable for failure to make a sufficient levy. 22
So, likewise, the sheriff or other officer will be liable to the debtor
if he makes an excessive levy, when the value of the property is
easily ascertainable. 23 The mere fact that the property, after sei-
zure, depreciates in value, or does not bring sufficient at the sale
to satisfy the debt, will not support a charge of negligence against
the officer making the levy. 24
Negligence in Making Sale.
The officer must sell the property lawfully taken under process
with reasonable diligence and business prudence, and in accordance
with legal requirements; and, if he omits the latter in any respect,
as the posting of proper notices of the sale of real estate, 25 he
will be liable. As he is bound to make the sale with due dili-
gence, 26 he will be responsible for any depreciation in the value of
the goods consequent on a negligent delay. 27 The officer also ren-
ders himself liable to the judgment creditor if he makes any varia-
tion from the authorized terms; as accepting a check in lieu of
cash. 28
Officer as Bailee.
The liability of the sheriff for the forthcoming of goods levied on
by him is similar to that of a common carrier, and unless deprived
of the goods by the act of God, inevitable accident, or the public
21 Com. v. Lightfoot, 7 B. Mon. (Ky.) 298. But where, there being abundant
property at hand to satisfy the debt, and the officer failed to make a sufficient
levy, and was held liable for his negligence, see Adams v. Spangler, 17 Fed.
133; Ransom v. Halcott, 18 Barb. (X. Y.) 56; Governor v. Powell, 9 Ala. 83.
22 Ransom v. Halcott, 18 Barb. (X. Y.) 56; Adams v. Spangler, 17 Fed. 133;
Gilbert v. Gallup, 76 111. App. 526. But see Conway v. Magill, 53 Xeb. 370,
73 X. W. 702; Smith v. Heineman (Ala.) 24 South. 364.
23 Holland v. Anthony, 19 R. I. 216, 36 Atl. 2.
2* Governor v. Carter, 10 N. C. 328; Lynch v. Com., 6 Watts (Pa.) 495.
25 Sexton v. Xevers, 20 Pick. (Mass.) 451.
26 Dorrance v. Com., 13 Pa. St. 160; State v. Herod, 6 Blackf. (Ind.) 444.
27 Carlile v. Parkins, 3 Starkie, 163. On failure to make sale with due dili-
gence (at advertised time), he may become a trespasser ab initlo. Bond v.
Wilder, 16 Vt. 393.
28 Robinson v. Brennan, 90 X. Y. 208.
163) NOTARIES PUBLIC. 385
enemy, he must answer for them in a proper action. 29 This lia-
bility is of very ancient origin, and founded on sound public policy. 30
The officer is responsible for moneys collected, and deposited in a
solvent bank, which afterwards fails.. 31 He is likewise liable for the
escape of a prisoner, whether the negligence or fault be that of
himself or his deputy. For the loss of goods attached on mesne
process there is authority for holding that ordinary care will dis-
charge the officer from liability. 32
SAME NOTARIES PUBLIC.
163. A notary public is liable for any loss or damage-
caused by his negligent failure to properly perform
the duties strictly pertaining to his office.
In the United States the duties of a notary public are confined
to taking acknowledgments of deeds and other instruments for
the purpose of entitling them to record, presenting negotiable in-
struments, and protesting them for nonpayment, administering
oaths, and, in many states, taking depositions, and even perform-
ing the marriage ceremony. 1 . As these acts are purely ministerial
and, with few exceptions, must be performed in exact conformity
with governing statutes, these officers are held very strictly ac-
countable for a diligent and skillful performance of their duties.
Thus the requisites of a formal acknowledgment of a deed are, a
a rule, fully prescribed by statute, and it is inexcusable careless-
ness in the notary to omit to state therein that the person making:
29 Hartleib v. McLane's Adm'rs, 44 Pa. St. 510. Cf. Mitchell v. Com., 3T
Pa. St. 187; Chapman v. Reddick (Fla.) 25 South. 673. But see, as to a lesser
liability, Eastman v. Judkins, 59 N. H. 576; Browning v. Hanford, 5 Hill
(X. Y.) 588. For criticism of latter case, see Phillips v. Lamar, 27 Ga. 228-
And see Gilmore v. Moore, 30 Ga. 628; Bond v. Ward, 7 Mass. 123.
so Sly v. Finch, Cro. Jac. 514.
si Phillips v. Lamar, 27 Ga. 228, criticising Browning v. Hanford, 5 Hillf
(N. Y.) 591, in which latter case the sheriff was held liable for property deliv-
ered to a solvent receiptor, in whose hands it was accidentally burned. And see
Gilmore v. Moore, 30 Ga. 628.
32 Winborne v. Mitchell, 111 N. C. 13, 15 S. E. 882. So as to jailer. Saun-
ders v. Perkins, 140 Pa. St. 102, 21 Atl. 257.
163. i LOUISIANA and FLORIDA.
BAR.XEG. 25
386 NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. (Ch. 9
the acknowledgment was known to him, 2 and, if the grantee should
suffer damage in consequence of such negligence, the notary would
be liable. 3 A fortiori would he be liable for knowingly making a
false certificate. 4 He is bound to know the truth of matters con-
tained in his certificate,, and will not be heard to excuse a mistake
as to the identity of parties, 5 certainly not where there is a clear dere-
liction of duty." He has even been held liable to a legatee for negli-
gence in drawing a will. 7
Protesting Notes and Bills.
In the performance of the duties attached to the protesting of
negotiable instruments, the notary is not held to so high a degree
of care and skill as in taking the acknowledgment of deeds, for
the reason that these duties require the exercise of judgment and
discretion, which are not required in taking acknowledgments. He
is, however, bound to use ordinary diligence and care, 8 and if, by
reason of his failure to use such ordinary care, the owner of the
bill is damaged, the notary will be liable. It is the duty of the
notary to personally make demand for the payment, and the duty
cannot be delegated, 9 although, in view of a well-established cus-
tom to make such presentments by deputy, such delegation of au-
thority has been sustained. 10 The notary is bound to know the
residence of the holder of the obligation, to whom he should apply
2 Fogarty v. Finlay, 10 Cal. 239:
s Id.
* Hatton v. Holmes, 97 Cal. 208, 31 Pac. 1131; People v. Butler, 74 Mich.
643, 42 N. W. 273; Heidt v. Minor, 113 Cal. 385, 45 Pac. 700; People v. Colby,
39 Mich. 456; State v. Plass, 58 Mo. App. 148. Cf. Com. v. Haines, 97 Pa. St.
228. Where notary acts as agent, in individual capacity, the principal cannot
recover on the notarial bond. State v. Boughton, 58 Mo. App. 155.
s State v. Meyer, 2 Mo. App. 413.
Com. v. Haines, 97 Pa. St. 228; Henderson v. Smith, 26 W. Va. 829; Scot-
ten v. Fegan, 62 Iowa, 236, 17 N. W. 491; Brigham v. Bussey, 26 La. Ann.
676; Fox v. Thibault, 33 La. Ann. 33; Schmitt v. Drouet, 42 La. Ann. 1004,
8 South. 396.
T Weintz v. Kramer, 44 La. Ann. 35, 10 South. 416. Cf. Schmitt v. Drouet, 42
La. Ann. 1064, 8 South. 396.
a Shear. & R. Neg. (4th Ed.) 597.
Chenowith v. Chamberlin, 6 B. Mon. (Ky.) 60; Commercial Bank v. Barks-
dale, 36 Mo. 563; Onondaga County Bank v. Bates, 3 Hill (N. Y.) 53.
10 Commercial Bank v. Varnum, 49 N. Y. 2G9.
164) CLERKS OF COURT AND REGISTERS OF DEEDS. 387
for information essential to a legal protest and notice; 11 but he is
not obligated to know where the parties or intermediate indorsers
can be found. 12 It has been held that if the notary, acting on in-
formation furnished by the last indorser, misdirects a notice, he is
not responsible; 13 otherwise, if he acts on information furnished
by a stranger. 14
Failure to make demand and protest at the proper time to make
it either before 1S or after 16 maturity of the bill is certainly neg-
ligence for which he will be liable.
Proximate Cause of Loss.
To sustain an action against the notary for negligence, it must
appear that the loss was the direct result of his omission of duty. 17
And if the holder of the bill has, by his own negligence, in any
way contributed to cause the loss, or render it possible, he cannot
recover from the notary. 18
SAME CLERKS OF COURT AND REGISTERS OF DEEDS.
164. Clerks of court, as well as town and county clerks,
being ministerial officers, are bound to know the
law applicable to their duties, and for any viola-
tion, omission, or negligent performance thereof are
liable in damages to the party injured.
Such liability is independent of statutes, which in many states
expressly provide for any dereliction in duty. Thus, if the clerk,
on being informed that the right of recovery would shortly be barred
ly the statute of limitations, should neglect or refuse to issue a
11 Vandewater v. Williamson, 13 Phila. (Pa.) 140.
12 Mulholland v. Samuels, 8 Bush (Ky.) 63; Vandewater v. Williamson, 13
Phila. (Pa.) 140.
is Bellemire v. Bank, 4 Whart. (Pa.) 105.
i* Citizens' Bank v. Howell, 8 Md. 530.
IB Stacy v. Bank, 12 Wis. 629; American Exp. Co. v. Haire, 21 Ind. 4.
is Warren Bank v. Suffolk Bank, 10 Gush. (Mass.) 582; Fabens v. Bank, 23
Pick. (Mass.) 330.
IT Mechanics' Bank v. Merchants' Bank, 6 Mete. (Mass.) 13.
is Swinyard v. Bowes, 5 Maule & S. 62; Franklin v. Smith, 21 Wend. (N.
Y.) 624; Eeed v. Darlington, 19 Iowa, 349.
388 NEGLIGENCE OF ATTORNEYS, PHYSICIANS, ETC. (Ch. 9
citation, he would be liable to the creditor for the amount of the
debt thereby lost. 1 When it is by law made the duty of a clerk
of court, upon the filing of a praecipe by the moving party in an ac-
tion, to issue process to the sheriff, whose duty it is to serve the
same, and return it to the clerk, who must then receive and record
the return, the clerk cannot defend an action for negligence in
these duties by showing that the plaintiff failed to see to it that
the duties had been properly performed. 2 And when it is his duty
to pass on the sureties on a bond, and damage results from ac-
cepting those who are worthless or insufficient, he will be liable.*
Mistakes of the clerk in making a certificate as to judgments en-
tered in his office render him liable for any damage caused thereby.*
And it is immaterial whether the search was made by himself or his-
deputy, or even by a volunteer. 5 He is also liable for negligently
filing papers, 8 and for their loss or destruction; 7 and when he has
failed to issue an execution when ordered by the plaintiff's attorney r
an averment that the papers are lost, and that the costs, for that
reason, could not be taxed, and the execution issued, is not a suffi-
cient defense. 8
In the same manner a register of deeds is liable for negligence
or omission in the record of instruments, or in the performance of
other duties incident to his office. 9 Where the clerk of court, ex
officio the parish recorder, failed to properly record an act of sale,
164. i Anderson v. Johett, 14 La. Ann. 614.
a Baltimore & O. R. Co. v. Weedon, 24 C. C. A. 249, 78 Fed. 584.
s McNutt v. Livingston, 7 Smedes & M. (Miss.) 641. And generally, see
Brown v. Lester, 13 Smedes & M. (Miss.) 392; Governor v. Wiley, 14 Ala. 172;
Governor v. Dodd, 81 111. 163; Johnson v. Schlosser, 146 Ind. 509, 45 N. E,
702, 36 Lawy. Rep. Ann. 59; Logan v. McCahan, 102 Iowa, 241, 71 N. W,
252.
* Maxwell v. Pike, 2 Me. 8; Ziegler v. Com., 12 Pa. St. 227; Chase v. Heaney,
70 111. 268. To make the clerk responsible, it is not necessary that a fee-
should be paid for the search. Harrison v. Brega, 20 U. C. Q. B. 324.
e Morange v. Mix, 44 N. Y. 315.
Rosenthal v. Davenport, 38 Minn. 543, 38 N. W. 618.
i Toncray v. Dodge Co., 33 Neb. 802, 51 N. W. 235.
s Benjamin v. Shea, 83 Iowa, 392, 49 N. W. 989. And see People v. Bartels,.
138 111. 322, 27 N. E. 1091.
Welles v. Hutchinson, 2 Root (Conn.) 85; Johnson v. Brice (Wis.) 78 N.
W. 1086.
164) CLERKS OF COURT AND REGISTERS OF DEEDS. 389
reserving a vendor's lien for the unpaid portion of the purchase
money, and which had been placed in his hands for that purpose,
he was held liable for the consequent loss. 10
10 Baker v. Lee, 49 La. Ann. 874, 21 South. 588. See, also, Welles v. Hutch-
inson, 2 Root (Conn.) 85.
390 DEATH BY WRONGFUL ACT. (Ch. 10
CHAPTER X.
DEATH BY WRONGFUL ACT.
165-166. Right of Action.
167. Instantaneous Death.
168. Proximate Cause of Death.
169. Beneficiaries.
170. Damages.
171. Pleading.
172. Evidence.
173. Limitation of Commencement of Action.
BIGHT OF ACTION.
165. At common law no right of action accrues to the per-
sonal representatives of the deceased to recover
damages suffered by reason of his -wrongful death.
166. Under Lord Campbell's act, and in the states which
have modeled their statutes thereon, whenever
death is caused by wrongful act, neglect, or default
such as would, if death had not ensued, have en-
titled the party injured to sustain an action, an ac-
tion may be maintained to recover
(a) Such damages, consequent on the death, as directly
result to the beneficiaries;
(b) Such action to be for the exclusive benefit of certain
designated members of the family of the deceased.
The maxim, "Actio personalis moritur cum persona," applies,
under the common law, to any right of action for an injury result-
ing in death, irrespective of the length of time which may inter-
vene between the injury and death. Nor does any right of action
survive to the master, parent, or husband for the recovery of dam-
ages for loss of services or society. The earliest case is that of
Higgins v. Butcher, 1 in 1606. In that case the declaration stated
that the defendant assaulted and beat the plaintiff's wife, of which
1G5-1GG. i Yel. 89.
165-166) RIGHT OF ACTION. 391
she died, to his damage. To this it was objected that "the declara-
tion was not good, because it was brought by the plaintiff for beat-
ing his wife; and that, being a personal tort to the wife, is now
dead with the wife. * * * And by Tanfield. J., if a man beats
the servant of J. S. so that he dies of the battery, the master shall
not have an action against the other for the battery and loss of
service, because, the servant dying of the extremity of the battery,
it is now become an offense to the crown, being converted into a
felony, and that drowns the particular offense and private wrong
offered to the master, and his action is thereby lost." It does not
appear that the question was again before the courts of England
for about 200 years, when the leading case of Baker v. Bolton 2
was tried before Lord Ellenborough, and in which the great jurist
instructed the jury that "in a civil court the death of a human be-
ing could not be complained of as an injury."
Lord Campbell's act, 3 entitled "An act for compensating the fam-
ilies of persons killed by accidents," was passed in 1846, and has
stood as a model for similar acts in most of the states of this
country. The act provides that: "^Whensoever the death of a per-
son shall be caused by wrongful act, neglect or default, and the
act, neglect or default is such as would, if death had not ensued,
have entitled the party injured to maintain an action and recover
damages in respect thereof, then, and in every such case, the per-
son who would have been liable if death had not ensued, shall be
liable to an action for damages, notwithstanding the death of the
person injured, and although the death shall have been caused un-
der such circumstances as amounted in law to a felony."
It will be seen that this act creates a new cause of action, for,
although the action can be maintained only when the death is
caused under such circumstances as would have entitled the party
injured to maintain an action had he survived, it cannot be main-
2 1 Camp. 493. The earlier cases in the United States in which this ques-
tion was considered are: Cross v. Guthery. 2 Root (Conn.) 90, overruled in
Connecticut Mut. Life Ins. Co. v. New York & N. H. K. Co., 25 Conn. 265;
Ford v. Monroe, 20 Wend. (X. Y.) 210. overruled in Green v. Railroad Co., *41
N. Y. 294; Carey v. Railroad Co.. 1 Cush. (Mass.) 475; Skinner v. Railroad
Corp., 1 Cush. (Mass.) 475; Eden v. Railroad Co., 14 B, Mon. (Ky.) 204; James
v. Christy, 18 Mo. 162; Shields v. Yoiige, 15 Ga. 349.
a 9 & 10 Viet. c. 93, 1.
DEATH BY WRONGFUL ACT. (Ch. 10
tained to recover damages resulting from the personal injury to
him, but lies only for the recovery of damages for the pecuniary
loss resulting to his family from his death. 4 A large majority of
the states have enacted laws embodying the substantial elements
of Lord Campbell's act. 5 In these statutes the language, in some
instances, varies materially, but the substance of the parent act
is very generally preserved. The statutes of Connecticut, 6 Iowa, 7
New Hampshire, 8 and Tennessee 9 possess the distinguishing pe-
culiarity of providing for a survival of the injured party's right of
action, instead of creating a new and independent right. A pecul-
iarity of the Maine 10 and Massachusetts 1X statutes is the grant-
ing of a remedy by way of indictment. Many of the statutes in
force in the United States contain other peculiar provisions lying
outside the province of the present discussion, which is intended
to cover only the general principles of the act which are substan-
tially common to the statutes of a large majority of the states.
The constitutionality of the various acts providing a remedy for
wrongful death has been repeatedly upheld, 12 and rarely questioned.
* In Blake v. Railway Co., 18 Q. B. 93, 21 Law J. Q. B. 233, Coleridge, J.,
said: "This act does not transfer the right of action to his representatives,
but gives to his representatives a totally new right of action, on different prin-
ciples."
6 Tiff. Death Wrongf. Act, 24. IOWA, OREGON, and WASHINGTON,
under the construction of the courts, give a recovery for the benefit of the
estate, not the family, of the deceased, while NORTH CAROLINA, VIRGINIA,
and WEST VIRGINIA hold the action to be maintainable notwithstanding
that there are none of the relatives in existence for whose benefit the action is
primarily given.
Gen. St. 1888, 1008, 1009, 1383.
t McClain's Ann. Code, 3730-3732, 3734.
Pub. St. 1891, c. 191, 8-13.
Mill. & V. Code, 3130-3134.
10 Rev. St. 1883, c. 51, 08, 69; Id. c. 52, 7.
11 Pub. St. c. 112, 212.
12 Boston, C. & M. R. Co. v. State, 32 N. H. 215; Southwestern R. Co. v.
Paulk, 24 Ga. 356; Board Internal Improvement of Shelby Co. v. Scearce, 2
Duv. (Ky.) 576; Louisville Safety- Vault & Trust Co. v. Louisville & N. R.
Co. (Ky.) 17 S. W. 567; Carroll v. Railway Co., 88 Mo. 239.
? 165-166) RIGHT OF ACTION. 393
The Wrongful Act.
The various American statutes, which were all modeled on Lord
Campbell's act, in their qualification of the conduct resulting in
death, although differing widely in phraseology, with very few ex-
ceptions make use of the words "wrongful" and "negligence'' or
-"neglect." In the construction of these statutes, "wrongful act"
is universally given its ordinary, accepted meaning, and although
it includes, is not restricted to, malicious, willful, or intentional
acts. 13 It is, however, essential to the right of action that the
wrongful act should be of such a nature as would have given the
injured party the right of recovery, 14 and it is believed that this
essential element of the right of action exists even in those states
where the express condition is not embodied in the statute. 15 If
death is the result of an intentional act, that is, if the killing is
intentional, the determination of the foregoing element will de-
pend upon the excuse or justification which the defendant may be
able to prove. 16 If the death is the alleged result of negligence,
the question then becomes one of nonperformance of duty, to be
determined by the law applicable to the particular division of the
subject of negligence in which it falls.
Contributory Negligence.
It follows, as of course, that in such cases the defense of con-
tributory negligence is always open; 1T and this is true even under
statutes which do not expressly provide that the action is main-
is Baker v. Bailey, 16 Barb. (N. Y.) 54; McLean v. Burbank, 12 Minn. 530
<Gil. 438). And see Wells v. Sibley, 56 Hun, 644, 9 X. Y. Supp. 343.
i* Xeilson v. Brown, 13 R. I. 651; Martin v. Wallace, 40 Ga. 52; Wallace v.
annon, 38 Ga. 199.
is Tin . Death Wrongf. Act, 63.
is White v. Maxcy, 64 Mo. 552; Morgan v. Durfee, 69 Mo. 469; Fraser v.
Freeman. 56 Barb. (X. Y.) 234. The burden is not on plaintiff of proving his
<?ase beyond a reasonable doubt when self-defense is pleaded, March v. Walker.
48 Tex. 372; and the plea of self-defense does not cause the burden to shift,
Nichols v. Winfrey, 79 Mo. 544. Per contra, Brooks v. Haslam, 65 Cal. 421,
4 Pac. 399.
IT Even where the action is by the parent for the death of a minor child
employed without the parent's consent. Texas & P. Ry. Co. v. Carlton. 60
Tex. 397; Texas & X. O. Ry. Co. v. Crowder, 61 Tex. 262, 63 Tex. 502. 70 Tex.
222. 7 S. W. 709. Per contra, under employer's liability act. Code Ala. 1886,
3 2590, 2501; Williams v. Railroad Co., 91 Ala. 635, 9 South. 77.
394 DEATH BY WRONGFUL ACT. (Ch. 10
tainable only when the injured person might have maintained an
action, 18 and, a fortiori, where the statute provides for a survival
of the original cause of action. 19 And where the doctrine of com-
parative negligence prevails, the modification of the rule of con-
tributory negligence applies equally under the statutory action. 20
If, however, the action is for death by "willful neglect" under the
statute, the defense of contributory negligence will not lie. 21
Imputed Negligence.
The doctrine of imputed negligence has already been discussed. 22
In those states where this doctrine, as established in Hartneld v,
Roper, 23 is still adhered to in actions brought in behalf of injured
infants, it is equally available as a defense in all actions to recover
for the infant's death. 24 But the important distinction noticed in
the consideration of this subject 25 between actions brought for the
benefit of the child and those brought for the benefit of the parent
is Gay v. Winter, 34 Cal. 153; Noyes v. Railroad Co. (Cal.) 24 Pac. 927;
Bertelson v. Railway Co.. 5 Dak. 313, 40 N. W. 531; Rowland v. Cannon, 35
Ga. 105; Southwestern R. Co. v. Johnson, 60 Ga. 667; Berry v. Railroad Co.. 72
Ga. 137; Central R. Co. v. Thompson, 76 Ga. 770; Central R. & B. Co. v.
Kitchens, 83 Ga. 83, 9 S. E. 827; Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318;.
Pennsylvania R. Co. v. Lewis, 79 Pa. St. 33; Pennsylvania R. Co. v. Bell, 122
Pa. St. 58, 15 Atl. 561; Helfrich v. Railway Co., 7 Utah, 186, 26 Pac. 295.
i Quinn v. Railroad Co., 56 Conn. 44, 12 Atl. 97; Lane v. Railroad Co., 69
Iowa, 443, 29 N. W. 419; Newman v. Railway Co., 80 Iowa, 672, 45 N. W.
1054; Beck v. Manufacturing Co., 82 Iowa, 286, 48 N. W. 81; Knight v.
Railroad Co., 23 La. Ann. 462; Murray v. Railroad Co., 31 La. Ann. 490;
Weeks v. Railroad Co., 32 La. Ann. 615; Nashville & C. R. Co. v. Smith, 6
Heisk. (Tenn.) 174; Canning v. Railway Co. (Sup.) 50 N. Y. Supp. 506.
20 Chicago, B. & Q. R. Co. v. Triplett, 38 111. 482; Toledo, W. & W. Ry. Co.
v. O'Connor, 77 111. 391; Chicago & A. R. Co. v. Fietsam, 123 111. 518, 15 N. E.
169; Florida C. & P. R. Co. v. Foxworth (Fla.) 25 South. 338.
21 Louisville. C. & L. R. Co. v. Mahony's Adm'x, 7 Bush (Ky.) 235; Clax-
ton's Adm'r v. Railroad Co., 13 Bush (Ky.) 636; Louisville & N. R. Co. v.
Brice, 84 Ky. 298, 1 S. W. 483; Union Warehouse Co. v. Prewitt's Adin'r
(Ky.) 50 S. W. 964; Louisville & N. R. Co. v. Orr (Ala.) 26 South. 35.
22 See ante, pp. 61-74.
23 21 Wend. (N. Y.) 615, 34 Am. Dec. 273.
24 Philadelphia & R. R. Co. v. Boyer, 97 Pa. St. 91; Payne v. Railroad Co. r
39 Iowa, 523; Stafford v. City of Oskaloosa, 57 Iowa, 749, 11 N. W. 668; Ala-
bama G. S. R. Co. v. Burgess, 116 Ala. 509, 22 South. 913.
20 See ante, pp. 61-74.
165-166) EIGHT OF ACTION. 395
should be carefully observed in considering the question of con-
tributory negligence of the parent or guardian as a defense in ac-
tions to recover for the death of the infant. As has been already
stated, 26 in an action by the parent in his own behalf for injuries
to his minor child, the contributory negligence of the parent is a
good defense. At the present time this consideration is of the
more importance for the reason that in a very large majority of
cases brought to recover for the death of infants the parents are
the only persons entitled, under the statute, to the benefit of the
action. In such cases no valid reason can be assigned why the
contributory negligence of the parents should not operate as a bar
to the action, even if the administrator is the nominal plaintiff, and
such is undoubtedly the generally accepted rule. 27 In a Maryland-
case 28 the court observed in its decision that to allow recovery in
cases where the party entitled to the action was guilty of con-
tributory negligence would be to allow parties to take advantage
of their own wrongful or negligent conduct. In an Iowa case, 2 *
however, where the action was brought by the administrator for
the death of a child, in which the contributory negligence of the
parents was set up in defense, it was held that their negligence
would not defeat the action, the court saying: "* * * It is-
26 See ante. pp. 61-73.
27 Baltimore & O. R. Co. v. State, 30 Md. 47; Hurst v. Railway Co., 84 Mich.
539, 48 N. W. 44; Pennsylvania R. Co. v. James, *81 Pa. St. 194. In the
latter case the court says: "A distinction is taken between the case of a father
or mother bringing an action for the death of a child and a child bringing an
action for a personal injury. In the former case the contributory negligence
of the parent may be used in defense, while in the latter case the negligence of
an infant of tender years will not be available." Pittsburg, A. & M. Ry. Co. v,
Pearson, 72 Pa. St. 169; Philadelphia & R. R. Co. v. Long, 75 Pa. St. 257;
Pennsylvania R. Co. v. Lewis, 79 Pa. St. 33; Westerberg v. Railroad Co., 142
Pa. St. 471, 21 Atl. 878; Williams v. Railway Co., 60 Tex. 205, distinguishing:
Galveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64, in which case Hartfleld v,
Roper is distinctly repudiated. Same effect, Cook v. Navigation Co., 76 Tex.
353, 13 S. W. 475; Reilly v. Railroad Co., 94 Mo. 600, 7 S. W. 407: Koons v.
Railroad Co., 65 Mo. 592; St. Louis, I. M. & S. R. Co. v. Freeman, 36 Ark. 41;
Westerfield v. Levis, 43 La. Ann. 63, 9 South. 52.
28 Baltimore & O. R. Co. v. State, 30 Md. 47. And see Hurst v. Railway Co.,
84 Mich. 539, 48 N. W. 44.
29 Wymore v. Mahaska Co., 78 Iowa, 396, 43 N. W. 264. And see Walters-
v. Railroad Co., 41 Iowa, 71.
306 DEATH BY WRONGFUL ACT. (Ch. 10
c-laimed that, * * * since they inherited his estate, the rule
which would bar a negligent parent from recovering in such a case
in his own right ought to apply. But plaintiff seeks to recover in
the right of the child, and not for the parents. It may be that a
recovery in this case will result in conferring an undeserved benefit
upon the father, but that is a matter which we cannot investigate.
If the facts are such that the child could have recovered had his
injuries not been fatal, his administrator can recover the full amount
of damages which the estate of the child has sustained." The same
rule has been adopted in Virginia where the action was brought
by the father as administrator of the infant. 30 But where there
are persons entitled to the benefit of the action other than those
whose negligence has contributed to the injury, such negligence
is not a defense to the action. 31 In one of the Ohio cases cited 32
the court seems to have decided against the validity of the defense
of contributory negligence of a beneficiary under the action, on
the double ground that the suit was brought by the husband as
administrator, and was prosecuted for the benefit of the children
as well as the husband of the deceased. On commenting on the
decisions in the last-named states, Mr. Tiffany says: "So far as
the Ohio decisions rest on the ground that the contributory negli-
gence of one of the beneficiaries of the action cannot be permitted
to defeat it where the other beneficiaries are free from negligence,
their reasoning is unassailable. So far, however, as they rest on
the ground that the right of the administrator to maintain the
action depends upon exactly the same conditions that would have
determined the right of the party injured, the Ohio cases, in com-
mon with those in Iowa and Virginia, are open to the criticism that
they make the right of the party injured to maintain an action the
so Norfolk & W. R. Co. v. Groseclose's Adm'r, 88 Va. 267, 13 S. E. 454 (per
curiam): "Hence, when the facts are such that the child could have recovered,
had his injuries not been fatal, his administrator may recover, without regard
to the negligence or presence of the parents at the time the injuries are re-
ceived, and although the estate is inherited by the parents."
si Cleveland, C. & C. R. Co. v. Crawford, 24 Ohio St. 631; Davis v. Guar-
nieri, 45 Ohio St. 470, 15 N. E. 350; Consolidated Traction Co. v. Hone. 59
N. J. Law, 275, 35 Atl. 899; Wolf v. Railroad Co., 55 Ohio St 517, 45 N. E.
708.
sz Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350.
167) INSTANTANEOUS DEATH. 397
sole test of the right of the beneficiaries to recover damages for
his death, instead of treating it merely as one of the conditions of
their right." 33
SAME INSTANTANEOUS DEATH.
167. The period -within -which death results from the in-
jury does not affect the right of action under the
statute.
It is immaterial whether death is instantaneous, or ensues after
an appreciable interval. 1 The point was settled in an early New
York case 2 in the following terse language : "The provision settles-
the question, and leaves nothing for debate or doubt. No one would
question the right of the intestate in this case, if he had survived
the injury, to maintain an action for it. * * * The statute givea
the action to the personal representative of the individual injured
when the injury causes his death, and it makes no distinction be-
tween cases where the death was immediate or instantaneous and
where it was consequential." 8
Under statutes which provide for a survival of the common-law
cause of action, and which do not provide for the recovery of dam-
ages for an injury resulting in death, it becomes very material
whether death was or was not instantaneous. Thus, under the
Massachusetts statute, which provides "that the action for tres-
pass on the case, for damages to the person, shall hereafter sur-
vive, so that, in the event of the death of the person entitled to-
bring such action, or liable thereto, the same may be prosecuted
or defended by or against the executor or administrator, in the
as Tiff. Death Wrongf. Act, 71.
167. i Brown v. Railroad Co., 22 N. Y. 191; International & G. N. R. Co,
v. Kindred, 57 Tex. 491; Roach v. Mining Co., 7 Sawy. 224, 7 Fed. 698; Reed
v. Railroad Co., 37 S. C. 42, 16 S. E. 289; Belding v. Railroad Co., 3 S. D. 369,.
53 N. W. 750.
2 Brown v. Railroad Co., 22 N. Y. 191.
8 The remedy by indictment under the MAINE statute cannot be maintained,
for death resulting from negligence of a railroad corporation, if death was not
instantaneous. State v. Maine Cent. R. Co., 60 Me. 490; State v. Grand Trunk.
Ry. Co., 61 Me. 114. The opposite ruling is made under the MASSACHU-
SETTS statute. Com. v. Metropolitan R. Co., 107 Mass. 236.
398 DEATH BY WRONGFUL ACT. (Ch. 10
same manner as if he were living," it has been repeatedly held that,
if death was instantaneous, no action could be maintained.* And
under similar statutes in Maine and Kentucky the courts have
held that no right of action survives when death was instantaneous. 5
In Connecticut, 6 Iowa, 7 and Tennessee, 8 although the statutes pro-
vide for a survival of the action, the language of the enactments is
such that, under the construction placed upon it by the courts,
the action may be maintained notwithstanding the fact that death
was instantaneous.
SAME PROXIMATE CAUSE OF DEATH.
168. To maintain the action, it must appear that death
was the natural, proximate result of the wrongful
act, neglect, or default of the defendant.
To support this general proposition, no citations are necessary.
It is not sufficient, however, that death is merely hastened by the
injury. 1 But that other causes acted in conjunction with the in-
jury complained of will not necessarily defeat the action. 2 So, also,
SL recovery may be had for death caused by the concurrent negli-
4 Kearney v. Railroad Corp., 9 Gush. 108; Moran v. Rollings, 125 Mass.
"93. On failure of positive proof to the contrary, the presumption would seem
to be in favor of instantaneous death. Riley v. Railroad Co., 135 Mass. 292;
Corcoran v. Railroad Co., 133 Mass. 507. Death by suffocation not instanta-
neous. Npurse v. Packard, 138 Mass. 307; Pierce ^. Steamship Co., 153 Mass.
87, 26 N. E. 415. And see Bancroft v. Railroad Corp., 11 Allen, 34.
6 State v. Railroad Co., 60 Me. 490; Hansford's Adm'x v. Payne, 11 Bush
(Ky.) 380; Newport News & M. V. R. Co. v. Dentzel's Adni'r, 91 Ky. 42, 14
S. W. 958.
Murphy v. Railroad Co., 30 Conn. 184.
T Conuers v. Railway Co., 71 Iowa, 490, 32 N. W. 465, followed in Worden
v. Railroad Co., 72 Iowa, 201, 33 N. W. 629.
s Nashville & C. R. Co. v. Prince, 2 Heisk. 580, overruling Louisville & N.
R. Co. v. Burke, 6 Cold. 45, and followed in Fowlkes v. Railroad Co., 5 Baxt.
63; Haley v. Railroad Co., 7 Baxt. 239; Kansas City, Ft S. & M. R. Co. v.
Daughtry, 88 Tenn. 721, 13 S. W. 698. See, also, Matz v. Railroad Co., 85
Fed. 180; Perham v. Electric Co. (Or.) 53 Pac. 14.
168. i Jackson v. Railway Co., 87 Mo. 422.
a Louisville & N. R. Co. v. Jones, 83 Ala. 370, 3 South. 902.
<} 168) PROXIMATE CAUSE OF DEATH. 399
gence of several parties. 3 In general, the determination of the
cause of death is analogous to the determination of the proximate
cause in any action to recover for the negligence of the defendant.
Thus, if an independent cause intervene, sufficient to break the
causal connection, no recovery can be had for the death, just as no
recovery could be had for the injury, had death not resulted, and
the direct relation of cause and effect had not been established
between the alleged negligent act and the injury. 4 If, however,
the injury was in itself sufficient to cause death, it will be received
as the proximate cause, unless it is made to appear that death
must have ensued independently of the injury. 8
Where death results from neglect by the defendant of a statutory
duty, the action can still be maintained, provided the injured per-
son could have maintained an action, had he survived; 6 and in
such case the action can be maintained even if the statute giving
redress for the personal injury was enacted after the act creating
a right of action for wrongful death. 7
Apart from any right of action conferred by the so-called "civil
damage acts," there are well-considered cases which hold that an
action is maintainable when death results from liquor supplied by
defendant after decedent was in an advanced stage of intoxica-
tion. 8 These cases, however, proceed on the theory that in an ad-
vanced stage of intoxication the decedent was incapable of exer-
cising volition, and hence could not be guilty of contributory neg-
ligence. It is difficult to understand, however, why contributory
negligence should not be predicated on the act of the decedent in
s Consolidated Ice-Mach. Co. v. Keifer, 134 111. 481, 25 N. E. 799; Cline v.
Railroad Co., 43 La. Ann. 327, 9 South. 122.
4 Scheffer v. Railroad Co., 105 U. S. 249; Schoen v. Railroad Co. (Super. N.
Y.) 9 N. Y. Supp. 709. And see ante, pp. 9-33.
o Beauchamp v. Mining Co., 50 Mich. 163, 15 N. W. 65; Jucker v. Railway
Co., 52 Wis. 150, 8 N. W. 862.
e Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543; Nugent v. Vander-
veer, 39 Hun (N. Y.) 323; Becke v. Railway Co., 102 Mo. 544, 13 S. W. 1053.
And see Palmer v. Railroad Co., 112 N. Y. 234, 19 N. E. 678; Rodrian v. Rail-
road Co., 125 N. Y. 526, 26 N. E. 741.
7 Merkle v. Bennington Tp., 58 Mich. 156, 24 N. W. 776. And see Racho v.
City of Detroit, 90 Mich. 92, 51 N. W. 360. Per contra, All v. Barnwell Co.,
29 X. C. 161, 7 S. E. 58.
Fink v. Garman, 40 Pa. St. 95; McCue v. Klein, 60 Tex. 168.
400 DEATH BY WRONGFUL ACT. (Ch. 10
becoming intoxicated in the first instance, thus making the neg-
ligent or wrongful act of the defendant possible. When the action,
is brought under the "civil damage acts," the weight of authority
favors its maintenance, 9 although the contrary doctrine is also-
maintained. 10
The Action By Whom Brought.
It is not within the scope of the present discussion to consider
in detail the provisions of the statutes conferring this right of ac-
tion in the various states, nor to examine their peculiarities in ref-
erence to the circumstances in which the action can be main-
tained. 11
By the terms of Lord Campbell's act it is provided that the ac-
tion shall be brought by and in the name of the executor or ad-
ministrator, and most of the statutes modeled thereon contain the
same provision, or its equivalent, requiring the action to be brought
by the "personal representatives"; while a number of the statutes
provide that the action may be prosecuted by the parties for whose
benefit it is given. But, whatever may be the particular provision,
the action is maintainable only by the persons to that end ex-
pressly authorized by the statute. If the statute authorizes the
action to be brought by the executor or administrator, it cannot
be brought by the beneficiaries; 12 and, conversely, if the persons
authorized to sue are the beneficiaries of the action, it cannot be
Emory v. Addis, 71 111. 273; Hackett v. Smelsley, 77 111. 109; Flynn v,
Fogarty, 106 111. 263; Rafferty v. Buckman, 46 Iowa, 195; Brockway v. Patter-
son, 72 Mich. 122, 40 N. W. 192; Roose v. Perkins, 9 Neb. 304, 2 N. W. 715;
Mead v. Stratton, 87 N. Y. 493; Davis v. Standish, 26 Hun (N. Y.) 608; Mc-
Carty v. Wells, 51 Hun, 171, 4 N. Y. Supp. 672.
10 Barrett v. Dolan, 130 Mass. 366; Harrington v. McKillop, 132 Mass. 567;
Davis v. Justice, 31 Ohio St. 359; Kirchner v. Myers, 35 Ohio St. 85; Pegram
v. Stortz, 31 W. Va. 220, 6 S. E. 485.
11 For a full discussion of this branch of the subject, see Tiff. Death Wrongf.
Act, c. 3.
12 Davis v. Railway Co., 53 Ark. 117, 13 S. W. 801; Kramer v. Railroad Co.,
25 Cal. 434; Covington St. R. Co. v. Packer, 9 Bush (Ky.) 455; City of Chicago
v. Major, 18 111. 349; Hagen v. Kean, 3 Dill. 124, Fed. Cas. No. 5,899; Peru
& I. R. Co. v. Bradshaw, 6 Ind. 146; Nash v. Tousley, 28 Minn. 5, 8 N. W. 875;
Scheffler v. Railway Co., 32 Minn. 125, 19 N. W. 656; Wilson v. Bumstead, 12
Neb. 1, 10 N. W. 411; Worley v. Railroad Co., 1 Handy (Ohio) 481; Weidner
v. Rankin, 26 Ohio St 522; Goodwin v. Nickersou, 17 R. I. 478, 23 Atl. 12;
168) PROXIMATE CAUSE OF DEATH. 401
maintained by the executor or administrator. 13 It follows as a cor-
ollary that, where the right to sue is conferred on the personal
representatives, the executor or administrator alone can sue. 14 And
where the sole right to maintain the action is conferred on the
personal representatives, it is immaterial that the deceased was
a married woman, and that, had the action been brought in her
lifetime, the husband must have been joined, for the reason that
the condition of the statute that the act or neglect must be such
that the party injured might have maintained an action is merely
descriptive of the act or neglect, and not of the person by whom
the action could be maintained. 15 In those states where the juris-
diction of the probate court to appoint an administrator depends
upon the existence of assets of the deceased to be administered,
the question arises whether a claim for damages for his death con-
stitutes such assets. As such a claim, although enforceable by the
administrator, does not belong to the creditors of the estate, a
strict construction of the statutes conferring jurisdiction on the
probate court on this ground would deprive it of jurisdiction. And
it is so held in Indiana, 16 Kansas, 17 and Illinois. 18 In Iowa, 19 Min-
nesota, 20 and Nebraska 21 it has been held that the fact that this
right of action is given to the personal representatives implies the
right to appoint, if necessary, an administrator to enforce it.
Edgar v. Castello, 14 S. C. 20. Statutory provision not exclusive. Brown v.
Railway Co. (Wis.) 77 N. TV. 748; Ferguson v. Railroad Co., 6 App. D. C. 525.
is Miller v. Railroad Co., 55 Ga. 143; Gibbs v. City of Hannibal, 82 Mo. 143;
Hennessy v. Brewing Co., 145 Mo. 104, 46 S. W. 966.
i* Dennick v. Railroad Co., 103 U. S. 11; Ho well v. Commissioners, 121
N. C. 362, 28 S. E. 362; Fitzhenry v. Traction Co. (N. J. Sup.) 42 Atl. 416.
is Green v. Railroad Co., 31 Barb. (X. Y.) 260, affirming 16 How. Prac. (X. Y.)
263; Lynch v. Davis, 12 How. Prac. (N. Y.) 323, overruled; Whiton v. Railroad
Co., 21 Wis. 310; Dimmey v. Railway Co., 27 W. Va. 32; South & N. A. R.
Co. v. Sullivan, 59 Ala. 272. See Long v. Morrison, 14 Ind. 595.
is Jeffersonville R. Co. v. Swayne's Adm'r, 26 Ind. 477.
17 Perry v. Railroad Co., 29 Kan. 420.
is Illinois Cent. R. Co. v. Cragin, 71 111. 177; Marvin v. Transfer Co., 49
Fed. 436.
i Morris v. Railroad Co., 65 Iowa, 727, 23 N. W. 143.
20 Hutchins v. Railway Co., 44 Minn. 5, 46 N. W. 79.
21 Missouri Pac. Ry. Co. v. Lewis, 24 Neb. 848, 40 N. W. 401. And see
Hartford & X. H. R. Co. v. Andrews, 36 Conn. 213.
BAR.XEG. 2G
402 DEATH BY WRONGFUL ACT. (Ch. 10
Whether the authority of the administrator to bring the action
can be questioned in such collateral proceeding on the ground
that by reason of the nonexistence of assets the probate court has
no jurisdiction to make the appointment, is a matter which has
inot been clearly decided by the courts. 22 When the statute, on
the nonexistence of personal representatives, gives the right of ac-
tion to the "heirs at law," the term includes all persons entitled
to share in the proceeds; and, if the action is brought by one of
the heirs at law, all must be joined. 23 In general, under statutes
providing that the action shall be brought by the persons in inter-
est, it depends upon the requirements of the particular enactment
whether it is necessary to join all such persons. W T here the stat-
ute creating this cause of action does not expressly change the
common-law rule, the right of action abates upon the death of the
offending party. 2 *
S AME BENEFICI A.RIES.
169. The action cannot be maintained unless it is alleged
and proved that one or more of the persons entitled
to the benefit of the action survives.
The statutes requiring the action to be brought by the executor
or administrator in almost every instance provide that it shall bo
prosecuted for the benefit of certain specified members of the de-
ceased's family, and that the proceeds shall be enjoyed by them to
the exclusion of creditors of the estate. As the executor or ad-
22 Jeffersonville R. Co. v. Swayne's Adm'r, 26 Ind. 477; Illinois Cent. R.
Co. v. Cragin, 71 111. 177; Missouri Pac. Ry. Co. v. Lewis, 24 Neb. 848, 40
N. W. 401; Louisville & N. R. Co. v. Cuaffin, 84 Ga. 519, 11 S. E. 891. See
In re Hardy, 35 Minn. 193, 28 N. W. 219; Denver, S. P. & P. Ry. Co. v. Wood-
ward, 4 Colo. 1. In KANSAS the point has been decided in the affirmative.
Perry v. Railroad Co., 29 Kan. 420. But see, per contra, Holmes v. Railway
Co., 5 Fed. 523.
23 st: Louis, I. M. & S. Ry. Co. v. Needham, 3 C. C. A. 129, 52 Fed. 371.
2* Green v. Thompson, 2G Minn. 500, 5 N. W. 376; Hamilton v. Jones, 125
Ind. 176, 25 N. E. 192; Davis v. Nichols, 54 Ark. 358, 15 S. W. 880; Russell
v. Sunbury, 37 Ohio St. 372; Moe v. Smiley, 125 Pa. St. 136, 17 Atl. 228. And
cf. Pennsylvania Co. v. Davis, 4 Ind. App. 51, 29 N. E. 425; Hegerich v. Ked-
die, 99 N. Y. 258, 1 N. E. 787, overruling Yertore v. Wiswall, 16 How. Prac.
<JN. YO 8.
160) BENEFICIARIES. 403
ministrator, in his executive capacity, has no interest in the recov-
ery, 1 it follows that the action cannot be maintained unless it is
alleged and proved that one or more of the persons entitled to the
benefit of the action survives. 2 The fact that under a particular
statute the remedy is by indictment does not affect the rule. 3 Un-
der the peculiar provisions of the statutes of Virginia, 4 West Vir-
ginia, 5 and Xorth Carolina, 6 where the statute gives the benefit of
the action to the widow and next of kin, the provision is construed
in the alternative, and it is sufficient if either survives. 7 In those
109. i Leggott v. Railway Co., 1 Q. B. Div. 599, 45 Law J. Q. B. 557, 35
Law T. (X. S.) 334; Kramer v. Railroad Co., 25 Cal. 434; Lamphear v. Buck-
ingham, 33 Conn. 237; City of Chicago v. Major, 18 111. 349; Jeffersonville,
M. & I. R. Co. v. Hendricks, 41 Ind. 49; Stewart v. Railroad Co., 103 Ind.
44, 2 X. E. 208; Kansas Pac. Ry. Co. v. Cutter, 16 Kan. 568; Perry v. Railroad
Co., 29 Kan. 420; Dickins v. Railroad Co., 23 N. Y. 158; Yertore v. Wiswall,
16 How. Prac. (N. Y.) 28; Hegerich v. Keddie, 99 N. Y. 258, 1 X. E. 787; Brad-
shaw v. Railway Co., L. R. 10 C. P. 189, 44 Law J. C. P. 148, 31 Law T. (N. S.)
S47.
2 Lamphear v. Buckingham, 33 Conn. 237; Chicago & R. I. R. Co. v. Morris,
26 111. 400; Quincy Coal Co. v. Hood, 77 111. 68; Indianapolis, P. & C. R. Co.
v. Keely's Adm'r, 23 Ind. 133; Stewart v. Railroad Co., 103 Ind. 44, 2 N. E.
208; Clore v. Mclntire, 120 Ind. 262, 22 N. E. 128; Missouri Pac. Ry. Co. v.
Barber. 44 Kan. 612, 24 Pac. 969; Schwarz v. Judd, 28 Minn. 371, 10 N. W.
208; Barnum v. Railway Co., 30 Minn. 461, 16 X. W. 364; Serensen v. Rail-
road Co., 45 Fed. 407; Warren v. Englehart, 13 Xeb. 283, 13 X. W. 401; Dun-
hene's Adm'x v. Trust Co., 1 Disn. (Ohio) 257; Lilly v. Railroad Co., 32 S. C.
142, 10 S. E. 932; Louisville & X. R. Co. v. Pitt, 91 Tenn. 86, 18 S. W. 118;
"Westcott v. Railroad Co., 61 Vt. 438, 17 Atl. 745; Geroux's Adm'r v. Graves,
62 Vt. 280, 19 Atl. 987; Woodward v. Railway Co., 23 Wis. 400; Wiltse v.
Town of Tilden, 77 Wis. 152, 46 N. W. 234; Lucas v. Railroad Co., 21 Barb.
(X. Y.) 245; Chicago, R. I. & P. Ry. Co. v. Young (Xeb.) 79 X. W. 553.
3 Com. v. Eastern R. Co., 5 Gray (Mass.) 473; Com. v. Boston & A. R. Co.,
121 Mass. 36; State v. Grand Trunk Ry. Co., 60 Me. 145; State v. Gilmore, 24
N. H. 461; State v. Manchester & L. R. Co., 52 X. H. 528. And it is also im-
material that the action is brought in the name of the state. State v. Balti-
more & O. R. Co., 70 Md. 319, 17 Atl. 88.
* Baltimore & O. R. Co. v. Wightman's Adm'r, 29 Grat. 431, followed in
Matthews v. Warner's Adm'r, 29 Grat. 570; Baltimore & O. R. Co. v. Xoell's
Adm'r, 32 Grat. 394; Harper v. Railroad Co., 36 Fed. 102.
B Madden v. Railway Co., 28 W. Va. 610.
Warner v. Railroad Co., 94 X. C. 250.
City of Chicago v. Major, 18 111. 349; Oldfleld v. Railroad Co., 14 X. Y.
510; Quiii v. Moore, 15 X. Y. 432; Tilley v. Railroad Co., 24 X. Y. 471; Me-
404 DEATH BY WRONGFUL ACT. (Ch. 10
states where the husband does not inherit under the statute of de-
scent and distribution, it is held that he cannot claim the benefit of
the action, as being among "the next of kin." 8 The action may be
maintained for the benefit of a posthumous child of the deceased.*
Where the common-law rule that an action of tort does not survive
the death of the party in whose favor it existed prevails, the action,
for death does not survive the beneficiary, 10 unless it is preserved
by special enactment
Distribution.
Under the provision of a majority of the statutes in the United
States, the proceeds of the action are distributable in the propor-
tions provided by law for the distribution of the personal property
of an intestate, and, in the absence of any express provision by
statute, it is believed that this method of distribution would be
followed. Creditors of the estate of the deceased are very gener-
ally excluded, by the terms of the acts, from the distribution.
DAMAGES.
170. The damages recoverable are, in general, measured
by the pecuniary loss resulting to the beneficiaries
of the action from the death.
Although the phraseology employed by the various statutes, de-
scriptive of the damages which may be recovered, is marked by dif-
ferences and peculiarities, it is believed that the fundamental prin-
ciple is substantially the same in each instance; that the damages
Mahon v. City of New York, 33 N. Y. 642; Haggerty v. Railroad Co., 31
N. J. Law, 349.
s Dickins v. Railroad Co., 23 N. Y. 158; Warren v. Englehart, 13 Neb. 283,.
13 N. W. 401. But where he inherits under the statute, he is, for that reason,
held to be included. Steel v. Kurtz, 28 Ohio St. 191; Bream v. Brown, 5 Cold.
(Tenn.) 168; Trafford v. Express Co., 8 Lea (Tenn.) 96.
o The George & Richard, L. R. 3 Adm. & Ecc. 466, 24 Law T. (N. S.)
717, 20 Wkly. Rep. 245; Nelson v. Railway Co., 78 Tex. 621, 14 S. W. 1021.
10 Woodward v. Railway Co., 23 Wis. 400; State v. Railroad Co. (Md.) 17
Atl. 88; Frazier v. Railroad Co., 101 Ga. 77, 28 S. E. 662; Chivers v. Rogers,
50 La, Ann. 57, 23 South. 100; Huberwald v. Railroad Co., 50 La. Ann. 477,
23 South. 474; Schmidt v. Woodenware Co., 99 Wis. 300, 74 N. W. 797; Texas-
Loan Agency v. Fleming (Tex. Civ. App.) 46 S. W. 63.
170) DAMAGES. 405
are measured by the pecuniary loss resulting to the beneficiaries of
the action from the death. 1
It may be safely stated as the almost universal rule that the re-
covery must be confined to the pecuniary loss of the beneficiaries,
to the exclusion of any compensation for the loss of society by way
of solatium for their grief and wounded feelings; 2 and this rule
is followed irrespective of the occurrence of the word "pecuniary''
in the enactment. Almost equally general is the rule that punitive
or exemplary damages cannot be recovered, 3 although in a few
states such damages are recoverable under express provisions of
the enactments, notably in cases of "willful act or omission or gross
negligence of the defendant." *
170. i Tiff. Death Wrongf. Act, 153; Louisville & N. R. Co. v. Brown
<Ala.) 25 South. 609; Louisville & N. R. Co. v. Taafe's Adm'r (Ky.) 50 S. W.
850; Louisville & N. R. Co. v. Eakin's Adm'r (Ky.) 45 S. W. 529.
2 Illinois Cent. R. Co. v. Barron, 5 Wall. 95; City of Chicago v. Major, 18
111. 349; Chicago City Ry. Co. v. Gillam, 27 111. App. 386; Barley v. Railroad
Co., 4 Biss. 430, Fed. Cas. No. 997; Kansas Pac. Ry. Co. v. Cutter, 19 Kan.
83; State v. Baltimore & O. R. Co., 24 Md. 84; Mynning v. Railroad Co., 59
Mich. 257, 26 N. W. 514; Hutchins v. Railway Co., 44 Minn. 5, 46 N. W. 79;
Collins v. Davidson, 19 Fed. 83; Schaub v. Railroad Co., 106 Mo. 74, 16 S.
W. 924; Besenecker v. Sale, 8 Mo. App. 211; Anderson v. Railroad Co., 35
Neb. 95, 52 N. W. 840; Oldfield v. Railroad Co., 14 N. Y. 310; Tilley v. Rail-
road Co., 29 N. Y. 252; Steel v. Kurtz, 28 Ohio St. 191; Pennsylvania R. Co.
v. Zebe, 33 Pa. St. 318; Cleveland & P. R. Co. v. Rowan, 66 Pa. St. 393; March
v. Walker, 48 Tex. 375; Galveston, H. & S. A. Ry. Co. v. Matula, 79 Tex.
577, 15 S. W. 573; Wells v. Railway Co., 7 Utah, 482, 27 Pac. 688; Needham
v. Railway Co., 38 Vt. 294; Potter v. Railway Co., 21 Wis. 372; Cerrillos Coal
R. Co. v. Deserant (N. M.) 49 Pac. 807; Coley v. City of Statesville, 121
N. C. 301, 28 S. E. 482; Walker v. McXeill, 17 Wash. 582, 50 Pac. 518; Earth
v. Railway Co., 142 Mo. 535, 44 S. W. 778; Knoxville, C. G. & L. R. Co. v.
Wyrick, 99 Tenn. 500, 42 S. W. 434; Green v. Southern Pac. Co. (Cal.) 55
Pac. 577.
s See cases cited in section 170, note 1. Also Chicago & N. W. Ry. Co. v.
Whitton's Adm'r, 13 Wall. 270; Donaldson v. Railroad Co., 18 Iowa, 280;
Dwyer v. Railway Co., 84 Iowa, 479, 51 N. W. 244; Kelley v. Railroad Co.,
48 Fed. 663; Whitford v. Railroad Co., 23 N. Y. 465, 469; Pennsylvania R. Co.
v. Henderson, 51 Pa. St. 315; Southern Cotton Press & Mfg. Co. v. Bradley,
52 Tex. 587; Garrick v. Railroad Co., 53 S. C. 448, 31 S. E. 334.
* Sayles' Civ. St. Tex. art. 2901. See, also, Alabama G. S. R. Co. v. Bur-
gess, 116 Ala. 509, 22 South. 913; Cerrillos Coal R. Co. v. Deserant (N. M.) 49
Pac. 807.
406 DEATH BY WRONGFUL ACT. (Ch. 10
Since the action for death does not survive, but is created by
the statute, no recovery can be had for the mental or physical suf-
fering of the deceased. 8 By the same course of reasoning it would
seem that no recovery could be had for expenses attending the in-
jury, and incurred prior to the death, as nursing and medical at-
tendance, but they have been frequently allowed in actions by
the parents for the death of minor children. 6 -\ Funeral expenses are
generally held to be a legitimate element of damages, at least where
the obligation to pay them rests on the beneficiary. 7 The word
"pecuniary," however, must not be taken to designate those losses
only which can be computed on a money basis. As was observed
in an early New York case: "The word 'pecuniary' was used in
distinction to those injuries to the affections and sentiments which
arise from the death of relatives, and w r hich, though painful and
grievous to be borne, cannot be measured or recompensed in money.
It excludes, also, those losses which result from the deprivation of
the society and companionship, w r hich are equally incapable of be-
ing defined by any recognized measure of value." 8
o See cases cited in section 170, note 3; Florida Cent. & P. R. Co. v. Fox-
worth (Fla.) 25 South. 338.
Little Rock & Ft. S. Ry. Co. v. Barker, 33 Ark. 350; Pennsylvania Co. v.
Lilly, 73 Ind. 252; Rains v. Railway Co., 71 Mo. 164; Roeder v. Ormsby, 13
Abb. Prac. (N. Y.) 334, 22 How. Prac. (N. Y.) 270; Pennsylvania R. Co. v. Zebe,
33 Pa. St. 318; Pennsylvania R. Co. v. Bantom, 54 Pa. St. 495; Cleveland & P.
R. Co. v. Rowan, 66 Pa. St. 393; Lehigh Iron Co. v. Rupp, 100 Pa. St. 95; City
of Galveston v. Barbour, 62 Tex. 172; Sieber v. Railway Co. (Minn.) 79 N.
W. 95.
T Owen v. Brockschmidt, 54 Mo. 285; Murphy v. Railroad Co., 88 N. Y.
445, affirmed in 25 Hun (N. Y.) 311; Petrie v. Railroad Co., 29 S. C. 303,
7 S. E. 515; Southern Ry. Co. v. Covenia, 100 Ga. 46, 29 S. E. 219, 40 Lawy.
Rep. Ann. 253. Contra, Consolidated Traction Co. v. Hone, 60 N. J. Law, 444,
38 Atl. 759; Trow v. Thomas, 70 Vt. 580, 41 Atl. 052. The MINNESOTA
statute provides that out of the proceeds of the action "any demand for the
support of the deceased and funeral expenses duly allowed by the probate
court, shall be first deducted and paid." But the fund is subject only to ex-
penses consequential on the injury. State v. Probate Court of Dakota Co.,
51 Minn. 241, 53 N. W. 463.
Denio, J. f in Tilley v. Railroad Co., 24 N. Y. 471, 29 N. Y. 252.
170) DAMAGES. 40T
Dt-ath of Husband or Father.
The widow and minor orphan may recover for the loss of sup-
port which the deceased owed them respectively, 9 [and the measure-
of the damages is the amount which deceased would probably have-
earned for their benefit during his life, 10 and the accumulations
from his earnings which they might reasonably expect to inherit. 1 ^/ ,
The damages suffered by the child for loss of support must be con-
fined to his minority. 12 In addition to the wages or money in-
come earned by the deceased, it is proper to consider the daily
attention, service, and care bestowed on the family. 13 If the proof
of damage in the foregoing particulars is fairly substantial, the
court will rarely disturb a verdict for failure of detailed evidence. 14
Evidence regarding the number and ages of the minor children is.
Illinois Cent. R. Co. v. Weldon, 52 111. 290; Chicago, R. I. & P. R. Co. v.
Austin, 69 111. 426; Chicago & A. R. Co. v. May, 108 111. 288.
i o Pennsylvania R. Co. v. Butler, 57 Pa. St. 335; Pennsylvania Tel. Co. v.
Varnau (Pa. Sup.) 15 Atl. 624; Hudson v. Houser, 123 Ind. 309, 24 X. E,
243; Baltimore & O. R. Co. v. State, 24 Md. 271; Schaub v. Railroad Co. r
106 Mo. 74, 16 S. W. 924; Hogue v. Railroad Co., 32 Fed. 365; Shaber v.
Railway Co., 28 Minn. 103, 9 N. W. 575; Bolinger v. Railroad Co., 36 Minn. 418,
31 X. W. 856; Burton v. Railroad Co., 82 N. C. 504; Pool v. Railroad Co., 7
Utah, 303, 26 Pac. 654; Baltimore & O. R. Co. v. Wightman's Adin'r, 29 Grat.
(Va.) 431; Louisville & X. R. Co. v. Ward's Adm'r (Ky.) 44 S. W. 1112; Max-
well v. Railway Co., 1 Marv. 199, 40 Atl. 945.
11 Lake Erie & W. R. Co. v. Mugg, 132 Ind. 168, 31 N. E. 564; Catawissa R.
Co. v. Armstrong, 52 Pa. St. 282; Castello v. Landwehr, 28 Wis. 522; Lawson
v. Railway Co., 64 Wis. 447, 24 X. W. 618.
12 Baltimore & R. Turnpike Road v. State, 71 Md. 573, 18 Atl. 884; Balti-
more & O. R. Co. v. State, 33 Md. 542; Baltimore O. R. Co. v. State, 41 Md.
268.
is Bolinger v. Railroad Co., 36 Minn. 418, 31 X. W. 856; Florida Cent. &
P. R. Co. v. Foxworth (Fla.) 25 South. 338.
14 Bolinger v. Railroad Co., 36 Minn. 418, 31 X. W. 856; Board Com'rs
of Howard Co. v. Legg, 110 Ind. 479, 11 X. E. 612; Smith v. Railway Co.,
92 Mo. 359, 4 S. W. 129; Baltimore & O. R. Co. v. State, 24 Md. 271; Kelley
v. Railway Co., 50 Wis. 381, 7 X. W. 291; Dallas & W. Ry. Co. v. Spicker,
61 Tex. 427; Missouri Pac. Ry. Co. v. Lehruberg, 75 Tex. 61, 12 S. W. 838;
St. Louis, A. & T. Ry. Co. v. Johnston, 78 Tex. 536, 15 S. W. 104; Secord v.
Railway Co., 15 TJ. C. Q. B. 631. In the following cases the verdict, on the
evidence, was held excessive: Illinois Cent. R. Co. v. Weldon, 52 111. 290; Louis-
ville & X. R. Co. v. Trammell, 93 Ala. 350, 9 South. 870; Button v. Windsor,
34 U. C. Q. B. 4S7; Morley v. Railway Co., 16 U. C. Q. B. 504.
408 DEATH BY WRONGFUL ACT. (Ch. 10
of course, essential when they are beneficiaries ; J 5 and even when
the action is for the sole benefit of the widow such evidence has
been properly admitted, for the reason that she must be burdened
with their support. 16
Damages may be recovered in behalf of a minor child for loss
of support, and also for loss of education and such other conven-
iences and comforts as he might have reasonably expected to en-
joy if his parent had survived. 17 Moreover, it is quite generally
held that loss of the personal care, instruction, and discipline of the
parent is a proper element of damage. 18
Death of Wife.
For the death of his wife the husband is entitled to recover for
the loss of her services, and the measure of the damages is their
reasonable value. 19 And although the loss must be estimated, as
nearly as possible, on a pecuniary basis, the jury may consider not
only the ability of the deceased for usefulness and capacity to earn
money, 20 but the frugality, industry, attention, and tender solici-
tude of a wife and the mother of children; 21 and, in the absence
of direct proof of the foregoing facts, it is within the province of
IB Breckenf elder v. Railway Co., 79 Mich. 560, 44 N. W. 957.
is Tetherow v. Railroad Co., 98 Mo. 74, 11 S. W. 310; Boeder v. Railway Co.,
100 Mo. 673, 13 S. W. 714; Atchison, T. & S. F. R. Co. v. Wilson, 1 C. C. A.
25, 48 Fed. 57; Mulcairns v. City of Janesville, 67 Wis. 24, 29 N. W. 5G5;
Abbot v. McCadden, 81 Wis. 563, 51 N. W. 1079.
IT Pym v. Railway Co., 2 Best & S. 759, 10 Wkly. Rep. 737, 31 Law J.
Q. B. 249, affirmed in 4 Best & S. 396, 11 Wkly. Rep. 922, 32 Law J. Q. B.
377; Bradley v. Railroad Co., 122 N. C. 972, 30 S. E. 8.
isTilley v. Railroad Co., 24 N. Y. 471, 29 N. Y. 252; Board Com'rs of
Howard Co. v. Legg, 93 Tnd. 523; Stoher v. Railway Co., 91 Mo. 509, 4 S. W.
389; Dimmey v. Railroad Co., 27 W. Va. 32; Searle's Adm'r v. Railway Co., 32
W. Va. 370, 9 S. E. 248; Baltimore & O. R. Co. v. Wightman's Adm'r, 29
Grat. (Va.) 431; St. Louis, I. M. & S. Ry. Co. v. Maddry, 57 Ark. 306, 21 S. W.
472; May v. Railroad Co. (N. J. Sup.) 42 Atl. 163.
is Chicago & N. W. Ry. Co. v. Whitton's Adm'r, 13 Wall. 270; Chant v.
Railway Co., Wkly. Notes (Eng.) 1806, p. 134; Pennsylvania R. Co. v. Good-
man, 62 Pa. St. 329; Delaware, L. & W. R. Co. v. Jones, 128 Pa. St, 308,
18 Atl. 330.
20 Chicago & N. W. Ry. Co. \. Whitton's Adm'r, 13 Wall. 270.
21 Pennsylvania R. Co. v. Goodman, 62 Pa. St. 329.
170) DAMAGES. 409
the jury to make reasonable assumptions in the circumstances
shown. 22
Death of Minor Child.
For the death of his minor child a parent is entitled to recover
for loss of services during minority, 23 the measure of damages be-
ing the value of the services less the probable cost of support. 24
To justify such recovery, it is not essential that the child should
have been a wage earner, 25 or, in the United States, at least, capable
of performing any services; 26 and proof of services is, therefore,
unnecessary, 27 although proof of personal characteristics may be
shown to enhance damages; 28 and the jury may consider the serv-
ices of the child in the family, such as acts of kindness and atten-
tion, increasing the comfort of his parents. 29 The right of the
court to reduce or set aside excessive verdicts is reserved in these
as in other cases. 30
22 Chant v. Railway Co., Wkly. Notes (Eng.) 18G6, p. 134; Delaware, L.
& W. R. Co. v. Jones, 128 Pa. St. 308, 18 Atl. 330.
23 Little Rock & Ft. S. Ry. Co. v. Barker, 33 Ark. 350; Chicago v. Keefe, 114
111. 222, 2 X. E. 2G7; Illinois Cent. R. Co. v. Slater, 129 111. 91, 21 N. E. 575;
McGovern v. Railroad Co., 67 N. Y. 417; City of Galveston v. Barbour, 62 Tex.
172; Rains v. Railway Co., 71 Mo. 164; Pennsylvania R. Co. v. Zebe, 33 Pa.
St. 318; Caldwell v. Brown, 53 Pa. St. 453.
24 Rockford, R. I. & St. L. R. Co. v. Delaney, 82 111. 198; Rajnowski v.
Railroad Co., 74 Mich. 20, 41 X. W. 847; Pennsylvania R. Co. v. Lilly, 73
Ind. 252; Brunswig v. White, 70 Tex. 504, 8 S. W. 85.
25Qldfleld v. Railroad Co., 14 X. Y. 310; Bramall v. Lees, 29 Law T. Ill;
Condon v. Railway Co., 16 Ir. C. L. 415; Ihl v. Railway Co., 47 X. Y. 317;
O'Mara v. Railroad Co., 38 N. Y. 445; Houghkirk v. Canal Co., 92 X. Y. 219,
28 Hun (X. Y.) 407.
26 Ihl v. Railroad Co., 47 X. Y. 317; Oldfield v. Railroad Co.. 14 N. Y. 310;
O'Mara v. Railroad Co., 38 X. Y. 445; Houghkirk v. Canal Co., 92 X. Y. 219;
Ahern v. Steele, 48 Hun, 517, 1 X. Y. Supp. 259; Gorham v. Railroad Co., 23
Hun (X. Y.) 449.
27 Little Rock & Ft. S. Ry. Co. v. Barker, 39 Ark. 491; City of Chicago v.
Major, 18 111. 349; City of Chicago v. Scholten, 75 111. 468; City of Chicago v.
Hesing, 83 111. 204; Union Pac. Ry. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501;
Xagel v. Railway Co., 75 Mo. 653; Grogan v. Foundry Co., 87 Mo. 321;
Brunswig v. White, 70 Tex. 504, 8 S. W. 85.
28 City of Chicago v. Scholten, 75 111. 468.
2 Louisville, X. A. & C. Ry. Co. v. Rush, 127 Ind. 545, 26 X. E. 1010.
so Little Rock & Ft. S. Ry. Co. v. Barker, 33 Ark. 350; Chicago & A. R.
Co. v. Becker, 84 111. 483; Lake Shore & M. S. Ry. Co. v. Sunderland, 2 111.
410 DEATH BY WRONGFUL ACT. (Ch. 10
As the parent has no legal claim upon the services of the child
after his majority, the expectancy of such a benefit is not gener-
ally admitted as an element of damage for the death of a minor
child. 31 In some states, however, the damages are not limited to
the value of services during minority. 32
Loss of Prospective Gifts and Inheritances.
In addition to damages for loss of services and support, it is
within the scope of the act to recover for the loss of pecuniary bene-
fits of which a reasonable expectation existed. To entitle the plain-
tiff to a recovery for the loss of prospective gifts, it must, in gen-
eral, appear that, during his lifetime, the deceased conferred ma-
terial benefits, such as services, money, or other gifts, upon the
beneficiary, and that their continuance was a reasonable proba-
bility at the time of his death. 33 The measure of damages in such,
App. 307; Union Pac. Ry. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501; Chicago &
N. W. Ry. Co. v. Bayfleld, 37 Mich. 205; Cooper v. Railway Co., 66 Mich. 261 r
33 N. W. 306; Gunderson v. Elevator Co., 47 Minn. 161, 49 N. W. 65)4; Strutzet
v. Railway Co., 47 Minn. 543, 50 N. W. 690; City of Vicksburg v. McLain,
67 Miss. 4, 6 South. 774; Parsons v. Railway Co., 94 Mo. 286, 6 S. W. 464;
Hickrnan v. Railway Co., 22 Mo. App. 344; Telfer v. Railroad Co., 30 N. J.
Law, 188; Pennsylvania Coal Co. v. Nee (Pa. Sup.) 13 Atl. 841; Ross v. Rail-
way Co., 44 Fed. 44; Ewen v. Railway Co., 38 Wis. 613; Hoppe v. Railway
Co., 61 Wis. 359, 21 N. W. 227; Schrier v. Railway Co., 65 Wis. 457, 27 N. W.
167.
31 Little Rock & Ft. S. Ry. Co. v. Barker, 33 Ark. 350; St. Louis, I. M. &
S. Ry. Co. v. Freeman, 36 Ark. 41; State v. Railroad Co., 24 Md. 84; Cooper
v. Railway Co., 66 Mich. 261, 33 N. W. 306; Pennsylvania R. Co. v. Zebe, 33 Pa.
St. 318; Caldwell v. Brown, 53 Pa. St. 453; Lehigh Iron Co. v. Rupp, 100 Pa.
St. 95; Agricultural & Mechanical Ass'n v. State, 71 Md. 86, 18 Atl. 37.
82 Missouri Pac. Ry. Co. v. Peregoy, 36 Kan. 424, 14 Pac. 7; Gulf, C. &
S. F. Ry. Co. v. Compton, 75 Tex.- 667, 13 S. W. 667; Scheffler v. Railway Co.,
32 Minn. 518, 21 N. W. 711; Birkett v. Ice Co., 110 N. Y. 504, 18 N. E. 108;
Potter v. Railway Co., 22 Wis. 615.
ss Dalton v. Railway Co., 4 C. B. (N. S.) 296, 4 Jur. (N. S.) 711, 27 Law
J. C. P. 227; Fordyce v. McCants, 51 Ark. 509, 11 S. W. 694; Atchisou, T,
& S. F. R. Co. v. Brown, 26 Kan. 443; Cherokee & P. Coal & Mining Co. v.
Limb, 47 Kan. 469, 28 Pac. 181; Richmond v. Railway Co., 87 Mich. 374, 49-
N. W. 621; Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 293; Winnt v. Rail-
way Co., 74 Tex. 32, 11 S. W. 907; Pennsylvania R. Co. v. Adams, 55 Pa. St,
4'JO; Pennsylvania R. Co. v. Keller, 67 Pa. St. 300; North Pennsylvania R,
Co. v. Kirk, 90 Pa. St. 15; Lehigh Iron Co. v. Rupp, 100 Pa. St. 95; Hall v.
170) DAMAGES. 411
cases is the amount which deceased might reasonably have been
expected to contribute to the support of the parent during the lat-
ter's expectancy of life, not exceeding the expectancy of life of de-
ceased at the time of his death. 34 In a Minnesota case 35 the rule
is thus stated by the court: "The proper estimate can usually be
arrived at with approximate accuracy by taking into account the
calling of the deceased, and the income derived therefrom ; his
health, age, talents, habits of industry; his success in life in the
past, as well as the amount of aid in money or services which he
was accustomed to furnish the next of kin; and, if the verdict ia
greatly in excess of the sum thus arrived at, the court will set it
aside or cut it down."
Theoretically, an adult child may recover damages for the loss of
pecuniary benefits resulting from the wrongful death of the parent.
Railway Co., 39 Fed. IS; Missouri Pac. Ry. Co. v. Lee, 70 Tex. 496, 7 S. W,
857; Texas & P. Ry. Co. v. Wilder, 35 C. C. A. 105, 92 Fed. 953; Franklin v.
Railway Co., 3 Hurl. & N. 211, 4 Jur. (X. S.) 565; Hetherington v. Railway
Co., 9 Q. B. Div. 160.
a* West Chicago St. R. Co. v. Dooley, 76 111. App. 424. Recovery not per-
mitted. Sykes v. Railway Co., 44 Law J. C. P. 191, 32 Law T. (N. S.) 199 r
23 Wkly. Rep. 473; Demarest v. Little, 47 N. J. Law, 28; Atchison, T. & S. F.
Ry. Co. v. Brown, 26 Kan. 443; Houston & T. C. Ry. Co. TJ. Cowser, 57 Tex.
293; Winnt v. Railway Co., 74 Tex. 32, 11 S. W. 907. Application of rule,
see Richmond v. Railway Co., 87 Mich. 374, 49 X. W. 621; Baltimore & O. R.
Co. v. Xoell's Adm'r, 32 Grat. (Va.) 394; Little Rock & Ft. S. Ry. Co. v. Voss
(Ark.) 18 S. W. 172; Fordyce v. McCants, 55 Ark. 384, 18 S. W. 371; O'Calla-
ghan v. Bode, 84 Cal. 489, 24 Pac. 269; Chicago & A. R. Co. v. Shannon, 43-
111. 388; Illinois & St. L. R. Co. v. Whalen, 19 111. App. 116; Chicago & A.
R. Co. v. Adler, 28 111. App. 102; City of Salem v. Harvey, 29 111. App. 483,
affirmed in 129 111. 344, 21 X. E. 1076; Texas & P. Ry. Co. v. Lester, 75 Tex.
56, 12 S. W. 955; Missouri Pac. Ry. Co. v. Henry, 75 Tex. 220, 12 S. W. 828;
Webb v. Railway Co., 7 Utah, 363, 26 Pac. 981. In XEW YORK it is suffi-
cient to show the age, sex, condition, and circumstances of deceased and of the-
next of kin, leaving the jury to fix the pecuniary damage on this evidence.
Oldfield v. Railroad Co., 14 X. Y. 310; O'Mara v. Railroad Co., 38 X. Y. 445;
Houghkirk v. Canal Co., 92 X. Y. 219; Ahern v. Steele, 48 Hun, 517, 1 X. Y.
Supp. 259; and the same rule applies where the basis of damage is the loss-
of prospective gifts and inheritances, Tilley v. Railroad Co., 29 X. Y. 252;
Dickens v. Railroad Co., 1 Abb. Deo. 504; Lockwood v. Railroad Co., 98 X,
Y. 523; Lustig v. Railroad Co., 65 Hun, 547, 20 N. Y. Supp. 477; Bierbauer v.
Railroad Co., 15 Hun (X. Y.) 559, affirmed in 77 X. Y. 588.
35 Hutchins v. Railway Co., 44 Minn. 5, 46 X. W. 79.
412 DEATH BY WRONGFUL ACT. (Ch. 10
Cases, however, in which the facts warrant such recovery, are com-
paratively rare. 36 The principle and application of the rule re-
main unchanged where the decedent is a collateral relative of the
plaintiff. 87 In these cases the proof of the probability of future
benefits, had deceased lived, and the measure of damages in assess-
ing the loss caused by his death, do not vary from those already
stated. In Illinois Cent. R. Co. v. Barren, 38 Nelson, J., said: "The
damages in these cases, whether the suit is in the name of the in-
jured party, or, in case of his death, under the statute, by his legal
representative, must depend very much on the good sense and sound
judgment of the jury, upon all the facts and circumstances of the
particular case. * * * So, where the suit is brought by the
representative, the pecuniary injury resulting from the death to
the next of kin is equally uncertain and indefinite." Evidence of
the poverty, 89 bad health, 40 or other circumstance of the beneficiary,
is, in general, inadmissible upon the question of pecuniary loss.
One exception to this rule is sometimes recognized in actions by
parents for the death of minor children, when such evidence is held
material as bearing upon the probability of the bestowal of gifts
had deceased survived. 41
se Baltimore &. O. R. Co. v. State, 60 Md. 449; Id., 63 Md. 135; Petrie v.
olumbus & G. R. Co., 29 S. C. 303, 7 S. E. 515.
ST Anderson v. Railroad Co., 35 Neb. 95, 52 N. W. 840; Serensen v. Railroad
<Jo., 45 Fed. 407.
ss 5 Wall. 90. If the evidence does not show a probability that injured, had
he lived, would have accumulated anything, nominal damages only can be
awarded, Howard v. Canal Co., 40 Fed. 195; and, if the verdict is grossly out
of proportion to the probability, the verdict will be set aside, Demarest v.
Little, 47 N. J. Law, 28.
as Illinois Cent. R. Co. v. Baches, 55 111. 379; Chicago & N. W. Ry. Co. v.
Moranda, 93 111. 302; Chicago & N. W. Ry. Co. v. Howard. 6 111. App. 5G9;
Heyer v. Salsbury, 7 111. App. 93; Illinois Cent. R. Co. v. Slater, 28 111. App.
73, affirmed in 129 111. 91, 21 N. E. 575; City of Delphi v. Lowery, 74 Ind. 520;
Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74; Chicago & N. W. Ry. Co. v. Bay-
field, 37 Mich. 205; Hunn v. Railroad Co., 78 Mich. 513, 44 N. W. 502; Central
R. R. v. Rouse, 77 Ga. 393, 3 S. E. 307. But see, on the ILLINOIS rule, Penn-
sylvania Co. v. Keane, 143 111. 172, 32 N. E. 260.
40 Illinois Cent. R. Co. v. Baches, 55 111. 379; Benton v. Railroad Co., 55
Iowa, 496, 8 N. W. 330.
*i Potter v. Railway Co., 21 Wis. 372; Johnson v. Railway Co., 64 Wis.
425, 25 N. W. 223; Wiltse v. Town of Tilden, 77 Wis. 152, 46 N. W. 234; Staal
170) DAMAGES. 413
Evidence.
Standard life tables, as the Northampton, Carlisle, etc., are always
admissible for the purpose of showing the expectation of life of
deceased. 42 Interest cannot be computed by the jury upon the
assessed damages, 43 unless this right is expressly conferred by stat-
ute, as in New York. 44
In assessing the damages of the beneficiary it is not proper for
the jury to consider the fact that he has, by the death of deceased,
become possessed of other property, for it is a fair assumption that,.
in any event, such property would have ultimately belonged to the
beneficiary. 45 So, also, when the beneficiary receives money from
an insurance policy on the life of deceased, the fact cannot be con-
v. Railroad Co., 57 Mich. 239. 23 X. W. 795; Cooper v. Railway Co., 66 Mich.
261, 33 X. W. 306; Missouri Pac. R. Co. v. Peregoy, 36 Kan. 424, 14 Pac. 7;
International & G. N. R. Co. v. Kindred, 57 Tex. 491; City of Chicago v.
McCulloch, 10 111. App. 459; Illinois Cent. R. Co. v. Slater, 28 111. App. 73,.
contra; Annas v. Railroad Co., 67 Wis. 46, 30 N. W. 282; McKeigue v. Janes-
ville, 68 Wis. 50, 31 X. W. 298.
42 Donaldson v. Railroad Co., 18 Iowa, 280; Coates v. Railway Co., 62 Iowa,
486, 17 X. W. 700; Worden v. Railway Co., 76 Iowa, 310, 41 N. W. 26;
Louisville, C. & L. R. Co. v. Mahony's Adm'x, 7 Bush (Tenn.) 235; Cooper v.
Railway Co., 66 Mich. 261, 33 X. W. 306; Hunn v. Railroad Co., 78 Mich. 513,.
44 X. W. 502; Sellars v. Foster, 27 Xeb. 118, 42 X. W. 907; Sauter v. Railroad
Co., 66 X. Y. 50; Mississippi & T. R. Co. v. Ayres, 16 Lea (Tenn.) 725; San
Antonio & A. P. Ry. Co. v. Bennett, 76 Tex. 151, 13 S. W. 319. But they are
not conclusive; they are to be considered with other evidence in the case.
Scheffler v. Railway Co., 32 Minn. 518, 21 X. W. 711; McKeigue v. City of
Janesville, 68 Wis. 50, 31 N. W. 298; Georgia Railroad & Banking Co. v.
Oaks, 52 Ga. 410; Georgia R. Co. v. Pittman, 73 Ga, 325; Beerus v. Railway
Co., 67 Iowa, 435, 25 X. W. 693;. Deisen v. Railway Co., 43 Minn. 454, 45 X,
W. 864; Gulf, C. & S. F. Ry. Co. v. Compton, 75 Tex. 667, 13 S. W. 667; Sweet
v. Railroad Co. (R. I.) 40 Atl. 237; Galveston, H. & S. A. Ry. Co. v. Burnett
(Tex. Civ. App.) 42 S. W. 314.
43 Central R. Co. v. Sears, 66 Ga. 499; Cook v. Railroad Co., 10 Hun, 426
(before act of 1870).
44 Cornwall v. Mills, 44 X. T. Super. Ct. 45.
45 Terry v. Jewett, 78 X. Y. 338, 17 Hun, 395. It is error to permit plaintiff
to show that intestate left no property, Koosorowska v. Glasser (Super. Buff.)
S X. Y. Supp. 197; although cases are conceivable where this rule is equitable,.
Grand Trunk Ry. Co.. of Canada v. Jennings, 13 App. Gas. 800, 58 Law J-
P. C. 1, 59 Law T. (X. S.) 679.
414 DEATH BY WRONGFUL ACT. (Ch. 10
sidered in reduction of damages. 46 And it is, of course, immaterial
that benefits from independent sources had subsequently accrued
to the beneficiary. 47
Instructions to Jury, and Verdict.
Within broad limitations, the amount of the pecuniary loss is
within the discretion of the jury, and instructions to that effect are
proper. 48 The instruction, however, should include a definite charge
upon the measure of damages proper in the particular case, 49 con-
forming to the evidence 50 and the pecuniary injury to the benefi-
ciaries. 61
If the amount of the verdict is evidently excessive, the court may
make an alternative order that the plaintiff remit a part of the
sum awarded, or that a new trial be had. 52 It follows, as a corol-
lary, that the court may, in its discretion, set aside an inadequate
verdict, and grant a new trial. 53
46 Althorf v. Wolfe, 22 N. Y. 355; Kellogg v. Railroad Co., 79 N. Y. 72;
.Sherlock v. Ailing, 44 Ind. 184; Carroll v. Railway Co., 88 Mo. 239; North
Pennsylvania R. Co. v. Kirk, 90 Pa. St. 15; Baltimore & O. R. Co. v. Wightman,
2d Grat. (Va.) 431; Western & A. R. Co. v. Meigs, 74 Ga. 857; Galvestou,
H. & S. A. Ry. Co. v. Cody (Tex. Civ. App.) 50 S. W. 135.
47 Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350; Georgia Railroad &
Banking Co. v. Garr, 57 Ga. 277.
48 Illinois Cent. R. Co. v. Barren, 5 Wall. 90; Chicago & N. W. Ry. Co. v.
Whitton's Adm'r, 13 Wall. 270; Pennsylvania R. Co. v. Ogier, 35 Pa. St. 60;
City of Vicksburg v. McLain, 67 Miss. 4, 6 South. 774; Kansas Pac. Ry. Co.
v. Cutter, 19 Kan. 83.
4 Pennsylvania R. Co. v. Ogier, 35 Pa. St. 60; Pennsylvania R. Co. v.
Vandever, 36 Pa. St. 298; Catawissa R. Co. v. Armstrong, 52 Pa. St. 282.
oo Chicago & N. W. R. Co. v. Swett, 45 111. 197; Chicago & A. R. Co. v.
-Shannon, 43 111. 338; North Chicago Rolling-Mill Co. v. Morrissey, 111 111.
646; Chicago, M. & St. P. Ry. Co. v. Dovvd, 115 111. 659, 4 N. W. 368.
61 Chicago & A. R. Co. v. Becker, 76 111. 25; Chicago, B. & Q. R. Co. v.
Harwood, 80 111. 88.
62 Little Rock & Ft. S. Ry. Co. v. Barker, 39 Ark. 491; Central R. Co. v.
Crosby, 74 Ga. 737; Rose v. Railroad Co., 39 Iowa, 246; Hutchins v. Railway
Co., 44 Minn. 5, 46 N. W T . 79; Smith v. Railway Co., 92 Mo. 360, 4 S. W.
129; Dernarest v. Little, 47 N. J. Law, 28; Mclntyre v. Railroad Co., 37 N. Y.
287; McKay v. Dredging Co., 92 Me. 454, 43 Atl. 29. This rule is -followed
in WISCONSIN only when the illegal portion of the verdict is readily sever-
able, and hence cannot apply in actions for death. Potter v. Railway Co., 22
~Wis. 615.
es Mariani v. Dougherty, 46 Cal. 26; Wolford v. Mining Co., 63 Cal. 483;
171) PLEADING. 415
It would seem to be a logical conclusion that there could be no
recovery unless there was pecuniary loss, and this view is sustained
liy some courts. 54 In other states it is held that a negligent killing
necessarily implies damage, and hence the next of kin may always
maintain an action for at least nominal damages. 55
PLEADING.
171. In general it is sufficient if the complaint alleges facts
which bring the case fairly -within the statute, 1
without stating that the negligence of the defend-
ant was such that, had death not ensued, the per-
son injured might have maintained the action. 2
Negligence and Resultant Injury.
The allegations of negligence and the resultant injury to the de-
ceased are, subject to the ordinary rules of pleading, 'applicable
to all cases of personal injury.
E.cixtence of Beneficiaries.
As the action must be maintained for the benefit of some per-
son entitled thereto under the provisions of the act, the existence
James v. Railroad Co., 92 Ala. 231, 9 South. 335; Meyer v. Hart, 23 App.
Div. 131, 48 X. Y. Supp. 904; Connor v. City of New York, 28 App. Div. 186,
50 N. Y. Supp. 972.
5* Hurst v. Railway Co., 84 Mich. 539, 48 N. W. 44; Van Brunt v. Railroad
Co., 78 Mich. 530, 44 N. W. 321; Charlebois v. Railroad Co., 91 Mich. 59, 51
X. W. 812; McGown v. Railroad Co., So Tex. 289, 20 S. W. 80; Regan v. Rail-
way Co., 51 Wis. 599, 8 N. W. 292.
ss Chicago & A. R. Co. v. Shannon, 43 111. 338; Chicago & N. W. Ry. Co.
v. Swett, 45 111. 197; Quincy Coal Co. v. Hood, 77 111. 68; Quin v. Moore, 15
N. Y. 432; Ihl v. Railroad Co., 47 N. Y. 317; Lehman v. City of Brooklyn, 29
Barb. (N. Y.) 234; Atchison, T. & S. F. R. Co. v. Weber, 33 Kan. 543, 6 Pac.
877; Johnston v. Railroad Co., 7 Ohio St. 336; Kenney v. Railroad Co., 49
Hun, 535, 2 N. Y. Supp. 512; Korrady v. Railway Co., 131 Ind. 261, 29 N. E.
1069.
171. i Brown v. Harmon, 21 Barb. (N. Y.) 508; Kennayde v. Railroad
Co., 45 Mo. 255; White v. Maxcy, 64 Mo. 552; Westcott v. Railroad Co., 61
Vt. 438, 17 Atl. 745. If the action is based on foreign statute, the statute
must be pleaded. Vanderwerken v. Railroad Co., 6 Abb. Prac. (N. Y.) 239;
Chicago & W. I. R. Co. v. Schroeder, 18 111. App. 328.
2 Philadelphia, W. & B. R. Co. v. State, 58 \i.d. 372.
416 DEATH BY WRONGFUL ACT. (Ch. 10
of such person or persons must be alleged in the complaint, 3 al-
though it is not necessary to give their names,* unless this is specif-
ically required by the statute. 6
Action by Personal Representatives.
The complaint must allege the appointment of plaintiff as execu-
tor or administrator, when the statute requires the action to be
brought by the personal representatives of the deceased. 6 And a
general denial does not put in issue such appointment; such issue
must be raised by special plea. 7
Allegation of Damages.
In those jurisdictions which hold that the action is not main-
tainable unless the beneficiaries have suffered pecuniary loss, 8 the
complaint must contain allegations to that effect. 9 But in those
jurisdictions where nominal damages are allowed in the absence of
proof of actual loss, such allegations are unnecessary, and their
s Lamphear v. Buckingham, 33 Conn. 237; Chicago & R. I. R. Co. v. Mor-
ris, 26 111. 400; Quincy Coal Co. v. Hood, 77 111. 68; Indianapolis, P. & C. R.
Co. v. Keely's Adm'r, 23 Ind. 133; Stewart v. Railroad Co., 103 Ind. 44, 2
N. E. 208; Schwarz v. Judd, 28 Minn. 371, 10 N. W. 208; Serensen v. Rail-
road Co., 45 Fed. 407; Louisville & N. R. Co. v. Pitt, 91 Tenn. 86, 18 S. W.
118; Westcott v. Railroad Co., 61 Vt. 438, 17 Atl. 745; Woodward v. Railway
Co., 23 Wis. 400; Wiltse v. Town of Tilden, 77 Wis. 152, 46 X. W. 234; Chi-
cago, B. & Q. R. Co. v. Bond (Neb.) 78 N. W. 710; Nohrden v. Railroad Co. (S.
' C.) 32 S. E. 524; West Chicago St. R. Co. v. Mabie, 77 111. App. 176; Chicago,
B. & Q. R. Co. v. Oyster (Neb.) 78 N.-W. 359.
* Conant v. Griffin, 48 111. 410. See Quincy Coal Co. v. Hood, 77 111. 68;
Jeffersonville, M. & I. R. Co. v. Hendricks, 41 Ind. 48; Budd v. Railroad Co.,
69 Conn. 272, 37 Atl. 683.
5 MARYLAND and NEW JERSEY require this particularity.
o City of Atchison v. Twine, 9 Kan. 350; Hagerty v. Hughes, 4 Baxt. (Tenn.)
222; Chicago & A. R. Co. v. Smith, 77 111. App. 492.
7 Ewen v. Railway Co., 38 Wis. 613; Union Ry. & Transp. Co. v. Shacklet,
119 111. 232, 10 N. E. 896. And see Burlington & M. R, Co. v. Crockett, 17
Neb. 570, 24 N. W. 219.
a See ante, p. 404; Chicago, B. & Q. R. Co. v. Van Buskirk (Neb.) 78 N. W.
514; Erb v. Morasch (Kan. App.) 54 Pac. 323.
Hurst v. Railway Co., 84 Mich. 539, 48 N. W. 44; Regan v. Railway Co.,
51 Wis. 599, 8 N. W. 292. Although it would seem that, if the loss is clearly
deducible from the facts pleaded, it need not be specifically alleged. Kelley
v. Railway Co., 50 Wis. 381, 7 N. W. 291; Gulf, C. & S. F. Ry. Co. v.
Younger (Tex. Civ. App.) 40 S. W. 423.
171) PLEADING. 417
absence does not render the complaint demurrable. Thus, in an
Indiana case, a complaint which showed that the deceased left a
widow and infant children surviving was held good on demurrer,
although it did not directly allege that the beneficiaries sustained
actual damages, the court saying that, in legal presumption, the in-
fant children and wife are entitled to the services of a father and
husband, and that such services are valuable to them. 10
Amendments.
Provided the amendment is not so material as to state a new
cause of action, the declaration may be amended as in other ac-
tions, and, although made after the action is barred by the statute
of limitations, will relate back to the commencement of the suit; 11
as an amendment changing the relation of the injured party from
that of employe' to that of passenger, 12 or adding the allegation
that deceased left wife and children, 13 or alleging the provisions
of a foreign statute, 14 or adding new 15 or more particular 16 alle-
gations regarding the negligence of defendant. But when the
amendment contains a substantially new or different cause of ac-
tion, it will not be allowed. Thus, where a widow began the ac-
tion for the use of herself and children, and, after the expiration
of the period of limitation, sought to substitute the administrator
as plaintiff for the use of the widow, the court said that the fiction
of relation could not be applied to defeat the defense of the stat-
ute of limitations. 17
10 Korrady v. Railway Co., 29 N. E. 1069. But see, also, Haug v. Rail-way
Co. (N. D.) 77 N. W. 97, 42 Lawy. Rep. Ann. 664; District of Columbia v.
Wilcox, 4 App. D. C. 90. In Pennsylvania Co. v. Lilly, 73 Ind. 252, it was held
that in an action by a father for the death of a minor child, in order to recover
for loss of sen-ices beyond the date of the beginning of the suit, such damage
must be specifically pleaded.
11 Tiff. Death Wrongf. Act, IS".
12 Kansas Pac. Ry. Co. v. Salmon, 14 Kan. 512.
is South Carolina R. Co. v. Nix, 68 Ga. 572; Haynie v. Railroad Co., 9 I1L
App. 105.
14 Lustig v. Railroad Co., 65 Hun, 547, 20 N. Y. Supp. 477; South Carolina
R. Co. v. Nix, 68 Ga. 572.
is Harris v. Railroad Co., 78 Ga. 525, 3 S. E. 355.
IB Jeffersonville. M. & I. R. Co. v. Hendricks, 41 Ind. 48; Kuhns v. Railway
Co., 76 Iowa, 67, 40 N. E. 92; Moody v. Railroad Co., 68 Mo. 470.
17 Flatley v. Railroad Co., 9 Heisk. (Tenn.) 230. See, also, Lilly v. Railroad.
BAR.NEG. 27
418 DEATH BY WRONGFUL ACT. (Ch. 10
EVIDENCE.
172. In actions for death the proof of the case must, in
general, be made in the same manner as in any
other action the gist of -which is the negligence of
the defendant.
Character of Evidence.
Owing, however, to the fact that in many cases there were no
witnesses to the accident, and that the proof must be, in a large
measure, circumstantial, less fullness and precision is required than
where the injured person is alive, and able to testify. 1
Defendant as Witness.
It is a very general rule that in actions by or against executors
and administrators neither party can testify against the other; and
this rule prevails in many of the states in actions for death, even
where the common law, disqualifying the testimony of interested
parties, has been abrogated. This exclusion, however, is commonly
limited to testimony relative to transactions with or statements by
the testator or intestate. Where the action is brought directly in
the name of the beneficiary, the reason for the rule does not exist,
and the rule itself is held not to apply. 2 Thus, in Missouri, in an
action by the widow, it was held that the defendant was a com-
petent witness, although the statute provided that in actions where
one of the original parties to the contract or cause of action was
dead the other should not be allowed to testify in his own favor,
the reason being that the plaintiff was not suing on a cause of ac-
Co., 32 S. C. 142, 10 S. E. 932; Smith v. Railroad Co., 84 Ga. 183, 10 S. E.
602; Bell v. Railroad Co., 73 Ga. 520.
172. i Central R. Co. v. Rouse, 77 Ga. 393, 3 S. E. 307; Chicago, B. &
Q. R. Co. v. Gregory, 58 111. 272; Missouri Furnace Co. v. Abend, 107 111. 44;
Chicago & A. Ry. Co. v. Carey, 115 111. 115, 3 N. E. 519; McDermott v. Rail-
way Co. (Iowa) 47 N. W. 1037; Louisville & N. R. Co. v. Brooks' Adni'x,
83 Ky. 129; Maguire v. Railroad Co., 146 Mass. 379, 15 N. E. 904; Buesching
v. Gaslight Co., 73 Mo. 219; Galvin v. City of New York, 112 N. Y. 223, 19
N. E. 675; Phillips v. Railroad Co., 77 Wis. 349, 46 N. W. 543.
2 Mann v. Weiand, *81 Pa. St. 243; Wallace v. Stevens, 74 Tex. 559, 12
S. W. 283; McEwen v. 'Springfield, 64 Ga. 159. And see Hale v. Kearly, 8
Baxt (Tenn.) 50.
173) LIMITATION OF COMMENCEMENT OF ACTION. 419
tion to which the deceased was a party. 3 In Indiana 4 and Illinois,' 5
where the action is brought in the name of the executor or admin-
istrator, it is held that the defendant is disqualified as a witness:
in the former state, under a statute providing that in suits in which
an executor or administrator is a party, involving matters which oc-
curred during the lifetime of the deceased, where a judgment may
be rendered for or against the estate, any person who is a necessary
party to the issue or record, whose interest is adverse to the es-
tate, shall not be a competent witness against the estate; and in
the latter, under a statute excluding parties and persons inter-
ested from testifying in suits by executors and administrators.
LIMITATION OF COMMENCEMENT OP ACTION.
173. The time -within -which an action may be brought for
wrongful death is governed by the provisions of
the various statutes, perhaps a majority adopting
in this respect the substance of Lord Campbell's act
that "every such action must be commenced -within
twelve calendar months after the death of such de-
ceased person." In some states the time is limited
from the date of the wrongful act or injury, -while
in a few instances no special limitation is contained
in the statute, the period being determined by the
general statute on the limitation of actions. 1
The Limitation Absolute.
As the right of action is given subject to the limitation, the limita-
tion is an inseparable part of the right itself. "This is not strictly
a statute of limitation. It gives a right of action that would not
otherwise exist. It must be accepted in all respects as the statute
Entwhistle v. Feighner, 60 Mo. 214.
* Hudson v. Houser, 123 Ind. 309, 24 N. E. 243; Sherlock v. Ailing, 44 Ind.
184.
e Forbes v. Snyder, 94 111. 374; Consolidated Ice-Mach. Co. v. Keifer, 134
111. 481, 25 N. E. 799.
173. i DELAWARE, GEORGIA, IOWA, KENTUCKY, MICHIGAN, NE-
VADA, NORTH DAKOTA, RHODE ISLAND, SOUTH DAKOTA, TENNES-
SEE, and WASHINGTON.
420 DEATH BY WRONGFUL ACT. (Ch. 10
gives it." 2 A subsequent change in the period of limitation will not
work an extension of the time within which an existing right of action
may be enforced. 8 Since the time within which the suit may be
brought operates as a limitation of the created liability, the limitation
need not be pleaded, and, if it appears from the complaint that the
action was not brought within the time limited, it is demurrable. 4
It would seem to follow that no allegation would be sufficient to-
excuse delay in the commencement of the action, unless the language
of the particular statute contained special provisions for exceptions
and disabilities. This occurs in the statutes of Texas and Kentucky,
where the ordinary disabilities are made available in this class of
actions. 5 What constitutes a commencement of the suit must be
determined by the statutes regulating practice in different states. ft
Where the limitation is to a certain period "after the death" or
"after the act or omissions," there is no difficulty in deciding when
the statute begins to run. But certain of the limitations are sus-
ceptible of different meanings, and must then be construed with the
other provisions of the particular statute. Thus, under a statute
limiting the time "within one year after the cause of action shall have
arisen," it was held that the administrator must be appointed before
2 Taylor v. Coal Co., 94 N. C. 525, approved in Best v. Town of Kinston,
106 N. C. 205, 10 S. E. 997. And in The Harrisburg, 119 U. S. 199, 7 Sup. Ct.
140, Waite, C. J., observed: "The statute creates a new legal liability, with the
right to a suit for its enforcement, provided the suit is brought within twelve-
months, and not otherwise. The time within which the suit must be brought
operates as a limitation of the liability itself as created, and not of the remedy-
alone." And see Hill v. Town of New Haven, 37 Vt. 501.
s Pittsburgh, C. & St. L. R. Co. v. Hine, 25 Ohio St. 629; Benjamin v.
Eldridge, 50 Cal. 612. See Commonwealth v. Boston & W. R. Corp., 11 Gush.
(Mass.) 512; Commonwealth v. East Boston Ferry, 13 Allen (Mass.) 589.
* Hanna v. Railroad Co., 32 Ind. 113, approved in Jeffersonville, M. & I.
R. Co. v. Hendricks, 41 Ind. 48. And see George v. Railway Co., 51 Wis. 603,-
8 N. W. 374.
o Nelson v. Railway Co., 78 Tex. 621, 14 S. W. 1021. But where the chil-
dren are adults the statute begins to run against them at once. Paschal v.
Owen, 77 Tex. 583, 14 S. W. 203. And see Louisville & N. R. Co. v. Sanders,
86 Ky. 259, 5 S. W. 563.
e Under the IOWA Code the delivery of the notice to the sheriff, and not the
filing of the petition, is the commencement of the action. Ewell v. Railroad
Co., 29 Fed. 57. And see Parish v. Town of Eden, 62 Wis. 272, 22 N. W. 399.
173) LIMITATION OF COMMENCEMENT OF ACTION. 421
the cause of action arose and the limitation began to run. 7 But,
when the time was limited to a year "after the cause of action shall
accrue," it was held that the time began to run at the death, because
Ihe right of action was given by the statute directly to the beneficia-
ries, without the intervention of an administrator. 8 And a proviso
that the action must be begun "within two years" has been held to
mean within two years from the death. 9 Where the limitation of
this class of actions is left to be determined by the general statute
on limitations, no general rule can be laid down; reference must be
had to the decisions under the particular statute. Thus, in Iowa,
the general statute places a limitation of two years "after their causes
accrue" on "actions founded on injuries to the person," and the stat-
ute giving the action in case of death provides that "such action shall
be deemed a continuing one, and to have accrued to such representa-
tive or successor at the same time it did to the deceased if he had sur-
vived," and it is held that the time begins to run with the injury. 10
But tinder a similar limitation in Kentucky it would appear that the
time does not begin to run until the qualification of the adminis-
trator. 11
Where, by express provision of statute, a notice is required before
an action can be commenced against a municipality to recover for
personal injuries, it is at least questionable if the giving of the notice
is a condition precedent to the commencement of an action to re-
cover for death resulting from such injuries. In New Hampshire
it has been held that such notice is not necessary in case of death. 12
7 Andrews v. Railroad Co., 34 Conn. 57; Sherman v. Stage Co., 24 Iowa, 515.
The latter decision was made under the provision of the Code that such ac-
tions should be barred two years "after their causes accrued," which has now
been changed.
s Kennedy v. Burrier, 36 Mo. 128.
Hanna v. Railroad Co., 32 Ind. 113.
10 Ewell v. Railway Co., 29 Fed. 57. See, also, Sherman v. Stage Co., 22
Iowa, 556. So, also, in TENNESSEE. Fowlkes v. Railroad Co., 5 Baxt.
(Tenn.) 663.
11 Louisville & N. R. Co. v. Sanders, 86 Ky. 259, 5 S. W. 563. In the orig-
inal act the action was to be commenced within one year from the death, and
it was held that, unless the petition showed that the action was barred, the
statute must be pleaded. Chiles v. Drake, 2 Mete. (Ky.) 146.
12 Clark v. City of Manchester, 62 N. H. 577; Jewett v. Keene, 62 N. H. 701.
422 DEATH BY WRONGFUL ACT. (Ch. 10
And in Wisconsin it has been held that a failure to give a notice
within 90 days after the happening of the injury would not defeat
an action by the administrator for the death, where the death oc-
curred within 90 days after the happening of the injury. 13
is McKeigue v. City of Janesville, 68 Wis. 50, 31 N. W. 298. See Parish
v. Town of Eden, 62 Wis. 272, 22 N. W. 399.
174-175) NEGLIGENCE OF MUNICIPAL CORPORATIONS. 423
CHAPTER XI.
NEGLIGENCE OF MUNICIPAL CORPORATIONS.
174-175. Public and Private Corporations.
176. Public Corporations Definition.
177. Right of Action.
178. Liability for Injuries.
179. Alteration of Grades.
180. Acts of Officers or Agents.
181. Acts Ultra Vires.
182. Judicial or Legislative Duties.
183. Conflagrations and Destruction by Mobs.
184. Public Health and Sanitation.
185. Quasi Municipal Corporations.
PUBLIC AND PRIVATE CORPORATIONS.
174. Public corporations are created and exist solely in
the public interest, as fractional parts of the gen-
eral government.
175. Private corporations owe their existence, at least in
part, to the expectation of personal emolument.
Although the torts of private corporations form no part of the
present discussion, it is essential that the distinction between puh-
lic and private corporations be clearly drawn. Each is the creature
of the legislature, but their powers, duties, and liabilities are en-
tirely dissimilar. The essential distinction between the two classes
is this: The private corporation possesses, at least partially, as
the object of its existence, the advancement of private or personal
interests, while the public corporation can, by the very conditions
of its existence, entertain and foster no purpose which is not purely
public in its character. Moreover, the private corporation is called
into existence by the volition of the interested parties, assisted by
the legislature, or in pursuance of its acts passed in that behalf.
Public corporations are the passive offspring of the state, called into
being at its pleasure, and holding their entire interests and fran-
chises as the exclusive property and domain of the government itself.
424 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
In the case of the former the state enters into a contract, and, when
its terms have been assented to by the incorporators, their rights
are fixed and irrevocable, and cannot be impaired or abrogated by
subsequent legislation. 1 But the relation existing between the state
and a municipal or other purely public corporation is by no means
that of contract, and, if certain constitutional limitations are ex-
cepted, the power of control which the legislature may exercise over
it is practically unlimited. 2 In U. S. v. Baltimore & O. K. Co. 3 the
court says: "A municipal corporation, like the city of Baltimore,
is a representative not only of the state, but is a portion of its gov-
ernmental power. It is one of its creatures, made for a specific
purpose, to exercise within a limited sphere the powers of the state.
The state may withdraw these local powers of government at pleas-
ure, and may, through its legislature, or other appointed channels,
govern the local territory as it governs the state at large. It may
enlarge or contract its powers, or destroy its existence." *
PUBLIC CORPORATIONS DEFINITION.
176. For the purposes of this chapter, public corporations
are either
(a) Municipal corporations proper, voluntarily assuming
the responsibilities incident to the association, or
(b) Quasi municipal corporations, consisting of political
divisions, created for convenience, "without the ac-
tual consent of their constituents.
*
Municipal corporations, properly speaking, are voluntary associa-
tions to which an actual, expressed consent has been given by the
174-175. i Dartmouth College v. Woodward, 4 Wheat. 518; 1 Dill. Mun.
Corp. (3d Ed.) 52.
2 Dartmouth College v. Woodward, 4 Wheat. 518; Cheaney v. Hooser, 9 B.
Mon. (Ky.) 330; People v. Morris, 13 Wend. (N. Y.) 325; Inhabitants of Yar-
mouth v. Inhabitants of North Yarmouth, 34 Me. 411; Girard v. City of Phila-
delphia, 7 Wall. 1; Tinsman v. Eailroad Co., 26 N. J. Law, 148; City of Pater-
son v. Society for Establishing Useful Manufactures, 24 N. J. Law, 385;
City of Clinton v. Cedar Kapids & M. R. R. Co., 24 Iowa, 455; Sloan v. State,
8 Blackf. (Ind.) 361.
a 17 Wall. 322.
* See, also, cases collected in 1 Dill. Mun. Corp. (3d Ed.) 54, note.
177) RIGHT OF ACTION. 425
people affected. The charters or enabling acts of corporations of
this class confer upon them extended benefits and enlarged liabilities.
Quasi municipal corporations are merely political divisions of the
state, created for purposes of convenience in administering the gen-
eral government. They are created without the volition or con-
sent of the inhabitants of the territory involved, and are, therefore,
more restricted in their powers, rights, and responsibilities. Coun-
ties, townships, school districts, and the New England towns belong
to this class of corporations.")
RIGHT OF ACTION.
177. A private action may be maintained against a munic-
ipal corporation for injury resulting from negli-
gence in the performance of duties not essentially
public in character, and intended for the special
benefit of the locality and its inhabitants. 1
177. i City of Galveston v. Posnainsky. 02 Tex. 118. In this case Stayton,
J., says: "Persons or corporations that voluntarily assume and undertake the
performance of a work, even though it be quasi public in its character, ought
to be held to impliedly contract that they will exercise due care in its perform-
ance, and for a neglect in this respect should be liable for the resulting damage.
We do not wish, however, to be understood to assert that there is a contract
between the state and a municipal corporation accepting a charter, but simply
to assert that, when such a corporation accepts a charter, giving denned powers,
the law imposes the duty of faithfully exercising them, and gives an action for
misfeasance or neglect in this respect to any person who may be injured by
such failure of duty." Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781;
Thayer v. City of Boston, 19 Pick. (Mass.) 511; Con way v. City of Beaumont,
61 Tex. 10; Barnes v. District of Columbia, 91 U. S. 541: Weightmau v.
Corporation of Washington, 1 Black, 39; Supervisors Rock Island Co. v. U. S.,
4 Wall. 435; Chicago City v. Robbins, 2 Black, 418; Western College of
Homeopathic Medicine v. City of Cleveland, 12 Ohio St. 375; Simmer v. City
of St. Paul, 23 Minn. 408; Kobs v. City of Minneapolis, 22 Minn. 160; Reed
v. City of Belfast, 20 Me. 246; City of Logausport v. Wright, 25 Ind. 513; Han-
non v. St. Louis Co., 62 Mo. 313; Kiley v. City of Kansas, 87 Mo. 103; Noble
v. City of Richmond, 31 Grat. (Va.) 271; Oilman v. Town of-Laconia, 55 N. H.
130; Rowe v. City of Portsmouth, 56 N. H. 291; Meares v. Commissioners, 31
N. C. 73; Smoot v. Mayor, etc., 24 Ala. 112; Jones v. City of New Haven, 34
Conn. 1; O'Neill v. City of New Orleans. 30 La. Ann. 220; Wallace v. City of
Muscatine, 4 G. Greene (Iowa) 373; Kenworthy v. Town of Irouton, 41 Wis.
426 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Cb. 11
/ It is a general principle that municipal corporations are not liable
in private actions for omissions or neglect in the performance of
a corporate or governmental duty imposed on them by law, when
such city or other corporation derives no benefit therefrom in it
corporate capacity, junless, of course, such action is given by stat-
ute. 2 And it should be here observed that, to determine the ques-
tion of liability in any case, a true interpretation of the statutes un-
der which the corporation is created is absolutely essential, 3 and
in many instances the liability of a municipality depends exclusively
upon the statute. 4
As to what duties are public and governmental and what are
private or corporate duties, there is a great lack of harmony in the
courts, and the decisions do not furnish any clear basis of distinc-
tion. Judge Dillon says: B "This liability on the part of municipal
corporations springs, as we think, from the particular nature of
the duty enjoined, which must relate to the local or special interests
647; City of Helena v. Thompson, 29 Ark. 569; Western Saving Fund Soc.
of Philadelphia v. City of Philadelphia, 31 Pa. St. 175; Erie City v. Schwingle,
22 Pa. St. 384; Anne Arundel County Com'rs v. Duckett, 20 Md. 469; Hewison,
v. City of New Haven, 37 Conn. 475; Town of WaJtham v. Kemper, 55 111.
346; City of Springfield v. Le Claire, 49 111. 476; White v. Bond Co., 58 111.
298; City of Dayton v. Pease, 4 Ohio St. 80; Requa v. City of Rochester, 45-
N. Y. 129; Conrad v. Village of Ithaca, 16 N. Y. 158; Rochester White Lead
Co. v. City of Rochester, 3 N. Y. 463; Morey v. Town of Newfane, 8 Barb.
(N. Y.) 645; Frederick v. City of Columbus, 58 Ohio St. 538, 51 N. E. 35; City
of Belleville v. Hoffman, 74 111. App. 503; Vaughtman v. Town of Waterloo,
14 Ind. App. 649, 43 N. E. 470; Brink v. Borough of Dunmore, 174 Pa. St.
395, 34 Atl. 598; Mersey Docks & Harbour Board v. Penhallow, L. R. 1 H.
L. 93; Scott v. Manchester, 37 Eng. Law & Eq. 495.
2 Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781; Oliver v. City
of Worcester, 102 Mass. 489. And see cases cited in note 1, supra.
3 Snider v. City of St. Paul, 51 Minu. 466, 53 N. W. 763; Gibbs v. Docks r
3 Hurl. & N. 164; City of Detroit v. Putnam, 45 Mich. 263, 7 N. W. 815.
* Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547; Kollock v. City of
Madison, 84 Wis. 458, 54 N. W. 725; Stilling v. Town of Thorp, 54 Wis. 528,
11 N. W. 906; Roberts v. City of Detroit, 102 Mich. 64, 60 N. W. 450. And
the right to sue is subject to limitation in municipal charter requiring notice
of injury, and limiting time within which action may be brought. Nichols
v. City of Minneapolis, 30 Minn. 545, 16 N. W. 410; Morgan v. City of Des-
Moines, 54 Fed. 456; Berry v. Town of Wauwatosa, 87 Wis. 401, 58 N. W.
751. And, generally, see Bacon v. City of Boston, 154 Mass. 100, 28 N. E. 9,
e Dill. Muu. Corp. (4th Ed.) 967.
177) RIGHT OF ACTION. 42J
of the municipality, and be imperative, and not discretionary, legis-
lative, or judicial; and from the means given for its performance,,
which must be ample, or such as were considered so by the legisla-
tors, and not from the supposed circumstance that they received
and accepted their charters or grants of powers and franchises
upon an implied contract with the state that they would discharge
their corporate duties, and that this contract inures to the benefit
of every individual interested in its performance." Referring, how-
ever, to the distinction attempted to be drawn between negligence
of the servants of a town or city in the performance of a duty im-
peratively required and one voluntarily assumed by authority of the
statute, Mr. Justice Allen observes: 6 "In our opinion, this dis-
tinction does not affect the resulting liability. There are many pro-
visions of statute by which all municipal corporations must do cer-
tain things and may do certain other things, in each instance with
a view solely to the general good. In looking at these provisions in
detail, it is impossible to suppose that the legislature have intended
to make this distinction a material one in determining the question
of corporate liability to private actions. For example, towns must
maintain pounds, guide posts, and burial grounds, and may establish
and maintain hospitals, workhouses, or alinshouses. * * * In
all these cases the duty is imposed or the authority conferred for
the general benefit. The motive and the object are the same, though
in some instances the legislature determines finally the necessity or
expediency, and in others it leaves the necessity or expediency to-
be determined by the towns themselves. But when determined, and
when the service has been entered upon, there is no good reason
why a liability to a private action should be imposed when a town
voluntarily enters upon such a beneficial work, and withheld when
it performs the service under the requirement of an imperative law.' r
Although, as already stated, it is not possible to reconcile ah 1 the
decisions in actions where it has been sought to hold municipalities
responsible for injuries to persons or property sustained through
negligence or wrongdoing of the cities or their agents, it is believed
that most of the cases can be distributed into general classes, which
have come to be quite generally recognized.
e Tindley v. City of Salem, 137 Mass. 171.
428 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
LIABILITY FOR INJURIES.
178. A municipal corporation is liable
(a) When the act itself has a direct tendency, regardless
of the manner of performance, to injure property,
or is of such a nature that unskillful performance
will surely result in such injury; or
<b) When the act is undertaken voluntarily in anticipa-
tion of a direct profit to the corporation, including
those cases where the pecuniary interest to the cor-
poration consists in avoiding liability and expense,
and in economical construction and maintenance.
'When the Act Inevitably Results in Injury.
The municipality is liable to respond in damages to the person
whose property is injured when such injury is the direct and natural
result of the act complained of, and the act is not performed under
special legislative sanction. 1 Where the city of Milwaukee, under
special authority of the legislature, made certain harbor improve-
ments in a sufficiently skillful manner, but the natural tendency of
which was to injure plaintiff's property, no recovery was allowed. 2
A common instance of this class of cases is that of trespass com-
mitted by the city in entering, before condemnation, on private prop-
erty, for municipal purposes, as constructing a sewer. 3 This prop-
osition is elementary in character, and does not properly fall within
the subject under consideration, as it does not involve any ques-
tion of negligence. The performance of the act itself, however it is
done, must necessarily cause damage to the owner of the property.
178. i Proprietors of Locks & Canals on Merrimack River v. City of Low-
ell, 7 Gray (Mass.) 223 (discharging sewer and drains into plaintiff's canals);
Haskell v. New Bedford, 108 Mass. 208 (discharging filth by sewer into plain-
tiff's docks).
2 Alexander v. City of Milwaukee, 16 Wis. 247. In this case it would, at
least, seem debatable that the plaintiff was entitled to compensation under
the constitutional prohibition against the "taking" of property. See Punipelly
T. Canal Co., 13 Wall. 1GG.
s Hildreth v. City qf Lowell, 11 Gray (Mass.) 345; Ashley v. City of Port
Huron, 35 Mich. 296. Cf. Montgomery v. Gilmer, 33 Ala, 116, with Wilson
v. Mayor, etc., 1 Denio (N. Y.) 595.
178) LIABILITY FOR INJURIES. 429 s
Negligent Performance of Act Naturally Inducing Injury.
Closely bordering on acts of the foregoing class are those of such
a nature that their unskillful or negligent performance would nat-
urally result in injury to private property. Thus, in the construc-
tion of bridges over natural streams, it is evident that the failure
to make due provision for the passage of the water will inevitably
result in damage to those whose property shall be inundated in
consequence. The general law in such cases is thus stated by Shaw,
C. J., in a Massachusetts case: 4 "We take it to be well settled in
this commonwealth that in ah 1 cases where a highway, turnpike,
bridge, town way, or other way is laid across a natural stream and
water course it is the duty of those who use this franchise or priv-
ilege to make provision by open bridges, culverts, or other means
for the free current of the water, so that it shall not be obstructed
and pent up to flow back on private lands or public ways." It is-
held in many cases, and is sometimes stated to be the general law,
that municipalities are not liable for damage resulting from de-
fective plans of their agents or officers, but are liable only for dam-
ages resulting from the negligent execution thereof. 5 The argu-
ment is something as follows: The city must act through the agency
* Lawrence v. Inhabitants of Fairhaven, 5 Gray (Mass.) 110. Insufficient
and obstructed culvert, Parker v. City of Lowell, 11 Gray (Mass.) 353; Roch-
ester White Lead Co. v. City of Rochester, 3 X. Y. 463; Weigh trnan v. Wash-
ington Corp., 1 Black. 39.
5 Van Pelt v. City of Davenport, 42 Iowa, 308; Mills v. City of Brooklyn,
32 X. Y. 489; Lynch v. Mayor, etc., 76 N. Y. 61; Smith v. New York, 66-
X. Y. 295; Carr v. Xorthern Liberties, 35 Pa. St. 324; Child v. City of Bos-
ton, 4 Allen (Mass.) 41; Allen v. City of Boston, 159 Mass. 324, 34 N. E. 519;
Darling v. Bangor, 68 Me. 108; City of Kansas City v. Brady, 52 Kan. 297.
34 Pac. 884; Rozell v. City of Anderson, 91 Ind. 591; Johnston v. District
of Columbia. 1 Mac-key (D. C.) 427; City of Denver v. Capelli, 4 Colo. 25;.
Hardy v. City of Brooklyn, 7 Abb. (X. C.) 403; Collins v. City of Philadel-
phia, 93 Pa. St. 272; Mayor, etc., of Americus v. Eldridge, 64 Ga. 524; Spring-
field v. Spence, 39 Ohio St. 665; City of Aurora v. Love, 93 111. 521; Ford v.
Town of Braintree, 64 Yt. 144, 33 Atl. 633; Los Angeles Cemetery Ass'n v.
City of Los Angeles, 103 Cal. 461, 37 Pac. 375. But cf. City of Evansville
v. Decker, 84 Ind. 325; Aicher v. City of Denver, 10 Colo. App. 413, 52 Pac.
86; Knostman & Peterson Furniture Co. v. City of Davenport. 99 Iowa, 589,
68 N. W. 887; Bealafeid v. Borough of Verona, 188 Pa. St. 627, 41 Atl. 651.
Liability for failure to anticipate excessive rainfall, Hession v. City of Wil-
mington, 1 Marv. 122, 40 Atl. 749; City of Peoria v. Adams, 72 111. App. 662.
430 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
of others. If it uses due care in the selection of its officers, it has
discharged its duty, and is not chargeable for their negligent acts
or omissions; 6 the adoption of the plans of such officers being a
legislative or discretionary function. It is believed that this prin-
ciple is not supported by the weight of authority or by sound rea-
son. It must be remembered that, coupled with the powers dele-
gated to municipalities, there exist, in many instances, duties to
achieve certain tangible results. Where the power and the duty
are thus combined, the exercise of the function ceases to be legis-
lative or judicial, and becomes essentially ministerial in its char-
acter; and a failure to achieve the prescribed result may entail upon
the city a liability for consequent injury. 7 In many of the states,
where the rule exempting the city from liability resulting from the
adoption of defective plans is considered well established, the deci-
sions are at variance, or the earlier decisions approving the rule
have been modified or overruled. 8 Judge Dillon thus states the law
on this point : 8 "* * * The later cases tend strongly to estab-
lish, and may, we think, be said to establish, and, in our judgment,
rightly to establish, that a city may be liable on the ground of neg-
ligence in respect of public sewers solely constructed and controlled
by it, where, by reason of their insufficient size, clearly demon-
strated by experience, they result, under ordinary conditions, in
overflowing the private property of adjoining or connecting owners
Van Pelt v. City of Davenport, 42 Iowa, 308.
TBlyhl v. Village of Waterville, 57 Minn. 115, 58 N. W. 817; City of
Lansing v. Toolan, 37 Mich. 152; Conlon v. City of St. Paul, 70 Minn. 216,
72 N. W. 1073; City of Chicago v. Seben, 165 111. 371, 46 N. E. 244; Oliver
v. City of Worcester, 102 Mass. 489; Emery v. City of Lowell, 104 Mass. 13;
Merrifield v. City of Worcester, 110 Mass. 216; City Council of Augusta v.
Lombard, 99 Ga. 282, 25 S. E. 772; Boyd v. Town of Derry (N. H.) 38 Atl.
1005; Seaman v. City of Marshall (Mich.) 74 X. W. 484; Peck v. City
of Michigan City, 149 Ind. 670, 49 N. E. 800; City of Litchfield v. South-
worth, 67 111. App. 398; King v. City of Kansas City, 58 Kan. 334, 48 Pac.
.88; Ostrauder v. City of Lansing, 111 Mich. 693, 70 N. W. 332; Donahoe v.
City of Kansas City, 136 Mo. 657, 38 S. W. 571.
s Cf. Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822, with City of Kan-
sas City v. Brady, 52 Kan. 297, 34 Pac. 884. Cf. Van Pelt v. City of Daven-
port, 42 Iowa, 308, with Knostman & Peterson Furniture Co. v. City of Dav-
enport, 99 Iowa, 589, 68 N. W. 8S7.
2 Dill. Mun. Corp. (,5th Ed.) p. 1328.
178) LIABILITY FOR INJURIES. 431
with sewage; and that the principle of exemption from liability
for defect or want of efficiency of plan does not, as more fully stated
below, extend to such a case." And it is believed that the true
rule may safely be made even stronger than this, and require of the
municipality the exercise of reasonable care in the achievement of
a result of this character.
Ministerial Acts Anticipating Pecuniary Profit.
In the discharge of those duties and powers which are distinctly
public, appertaining to the municipality as a division of the gen-
eral government of the state, no liability attaches, 10 but municipali-
ties are not exempt from the liability to which other corporations
are subject for negligence in managing or dealing with property or
rights held by them for their own advantage or emolument. 11 This
principle is commonly illustrated in municipal construction and con-
trol of water works 12 and gas works. 13 And where the city rented
a public building, and a person was injured by falling into an exca-
vation negligently left open on the premises, it was liable. 14 So,
also, where the city owned and operated a toll bridge over the Sa-
vannah river, it was responsible for injuries received through its de-
fective condition. 15 Under the foregoing head will also fall that nu-
merous class of cases involving municipal liability where the pe-
cuniary gain reverting to the corporation is indirect; that is, where
it consists in avoiding liability and expense, and in economical con-
struction and maintenance. Even in the absence of special statute
creating liability, it is now generally held that a municipal corpora-
10 See "Legislative Duties," post, pp. 448-451.
11 Oliver v. City of Worcester, 102 Mass. 489; Child v. City of Boston, 4
Allen (Mass.) 41; Emery v. City of Lowell, 104 Mass. 13; Merrifield v. City of
Worcester, 110 Mass. 216; City Council of Augusta v. Lombard, 99 Ga. 282,
25 S. E. 772; Hill v. City of Boston, 122 Mass. 344; Mayor, etc., of New York
v. Bailey, 2 Denio (N. Y.) 433; Collins v. Inhabitants of Greenfield, 172 Mass.
78, 51 N. E. 454.
12 City of Philadelphia v. Gilmartiu, 71 Pa. St. 140; Smith v. City of
Philadelphia, 81 Pa. St. 38.
is Scott v. Mayor, etc., 37 Eng. Law & Eq. 495.
i* Oliver v. City of Worcester, 102 Mass. 489. And see Neff v. Inhabitants
of Wellesley, 148 Mass. 487, 20 N. E. 111.
is City Council of Augusta v. Hudson, 88 Ga. 599, 15 S. E. 678; Doherty
v. Inhabitants of Braintree, 148 Mass. 495, 20 N. E. 106.
432 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
tion having the exclusive control of the streets, 16 sidewalks, 17
bridges, and sewers 18 within its limits, or, at least, if the means
for performing the duty are placed at its disposal, 19 is obliged to
construct and use ordinary diligence to keep them in a reasonably
safe condition; 20 and if it unnecessarily neglects the duty, and in-
juries result to any person by this neglect, the corporation is liable
for the damages sustained. 21 The true conception of the basis of
this responsibility would seem to lie in considering duties of this
le Waggener v. Town o! Point Pleasant, 42 W. Va. 798, 26 S. E. 352; City
of Jacksonville v. Smith, 24 C. C. A. 97, 78 Fed. 292; Town of Worthington
v. Morgan, 17 Ind. App. G03, 47 N. E. 235; City of Dallas v. McAllister (Tex.
Civ. App.) 39 S. W. 173.
IT Village of Sciota v. Norton, 63 111. App. 530; Hutcbings v. Inhabitants
of Sullivan, 90 Me. 131, 37 Atl. 883; Town of Kentland v. Hagen (Ind. App.)
46 N. E. 43; City of Ord v. Nash, 50 Neb. 335, 69 N. W. 964. Ice on sidewalks.
City of Virginia v. Plummer, 65 111. App. 419; Huston v. City of Council
Bluffs, 101 Iowa. 33, 69 N. W. 1130; Ellis v. City of Lewiston, 89 Me. 60,
35 Atl. 1016; Stapleton v. City of Newburgh, 9 App. Div. 39, 41 N. Y. Supp.
96; Conklin v. City of Elmira, 11 App. Div. 402, 42 N. Y. Supp. 518; Town
of Boswell v. Wakley, 149 Ind. 64, 48 N. E. 637; Town of Williamsport v.
Lisk (Ind. App.) 52 N. E. 628.
is City of Chicago v. Seben, 165 111. 371, 46 N. E. 244; Donahoe v. City of
Kansas City, 136 Mo. >S7, 38 S. W. 571.
i Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284). In action to
recover damage caused by defective sewer, the financial inability of the city
to repair must be pleaded. Netzer v. City of Crookston, 59 Minn. 244, 61
N. W. 21. But see Hoyt v. City of Danbury, 69 Conn. 341, 37 Atl. 1051 (under
statute); Lord v. City of Mobile, 113 Ala. 360, 21 S. E. 366.
20 Byerly v. City of Anamosa, 79 Iowa, 204, 44 N. W. 359; Kellogg v.
Village of Janesville, 34 Minn. 132, 24 N. W. 359; Delger v. City of St. Paul,
14 Fed. 567; Clarke v. City of Richmond, 83 Va. 355, 5 S. E. 369; Albrittin
v. Mayor, etc., 60 Ala. 486; City of Denver v. Dunsmore, 7 Colo. 328, 3
Pac. 705; Grove v. City of Ft. Wayne, 45 Ind. 429; Saulsbury v. Village of
Ithaca, 94 N. Y. 27; Hiner v. City of Fond dti Lac, 71 Wis. 74, 36 N. W. 632;
Cleveland v. King, 132 L T . S. 295, 10 Sup. Ct. 90; Browning v. City of Spring-
field, 17 111. 143; Goldschmid v. City of New York, 14 App. Div. 135, 43 X.
Y. Supp. 447; City of South Omaha v. Powell, 50 Neb. 798, 70 N. W. 391;
Scanlan v. City of Watertown, 14 App. Div. 1, 43 N. Y. Supp. 618; City of
Decatur v. Besten, 169 111. 340, 48 N. E. 186; Graham v. Town of Oxford,
105 Iowa, 705, 75 N. W. 473; Hall v. City of Austin (Minn.) 75 N. W. 1121;
City of Guthrie v. Swan, 5 Okl. 779, 51 Pac. 562.
21 Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284); Mooney v. Bor-
ough of Luzerne, 186 Pa. St. 161, 40 Atl. 311, 42 Wkly. Notes Cas. 279.
1~S) LIABILITY FOR INJURIES. 433
class to be ministerial in their nature, and assumed by the corpora-
lion in consideration of the privileges conferred by its charter. 22
But negligence in the manner of construction and maintenance must
not be confused with an entire neglect or omission to construct;
for, when the power to make improvements of this nature is dis-
cretionary with the corporation, the failure to exercise the power
cannot be made the basis of liability. 23 Neither can an action of
this class be sustained against so-called "quasi municipal corpora-
tions,'' whose liabilitv is considered in another place. 24
r
If the financial inability of the city to construct and keep in re-
pair its various equipment is relied upon as a defense, it must be
pleaded. 25 There is no implied warranty as to the safe condition
of either the streets, sidewalks, bridges, or other works and ways
of a municipal corporation; nor is the latter liable to respond in
damages for every injury that is sustained by reason of defects ex-
isting therein. 20 The extent of the requirement is that the city use
reasonable care to secure the safety of persons who are in the exer-
cise of ordinary care and prudence. Thus, regarding the accumu-
lations of ice and snow upon sidewalks, although a few of the cases
are arbitrary and extreme, the consensus of the decisions does not
impose liability for a mere slippery condition, occasioned by ice or
snow, 27 but the accumulation must be of such quantity and nature
as to cause a virtual obstruction or impediment. 28
22 Hill v. City of Boston, 122 Mass. 344; Sawyer v. Corse, 17 Grat. (Va.)
230; City of Richmond v. Long's Adm'rs, 17 Grat. (Va.) 375, 379.
23 Wilson v. Mayor, etc., 1 Denio (X. Y.) 595; Lacour v. Mayor, etc., 3-
Duer (X. Y.) 406.
24 See post, pp. 4;Ht 157.
25 Xetzer v. City of Crookston, 59 Minn. 244, 61 N. W. 21. And see Hoyt
v. City of Danbury, 69 Conn. 341, 37 Atl. 1051. And it is no defense that
funds are lacking through failure to impose the legitimate tax for that pur-
pose. It must appear that it has exhausted its powers to raise revenue. Lord
v. City of Mobile, 113 Ala. 360, 21 South. 366.
ze Miller v. City of St. Paul, 38 Minn. 134, 36 N. W. 271.
27 Xason v. City of Boston, 14 Allen (Mass.) 508; Cook v. City of Milwau-
kee, 24 Wis. 270; City of Chicago v. McGiven, 78 111. 347; Stone v. Inhabit-
ants of Hubbardston, 100 Mass. 50; Broburg v. City of Des Moines. 63
Iowa, 523, 19 X. W. 340; Kinney v. City of Troy, 108 X. Y. 567, 15 X. E.
728; Smyth v. City of Bangor, 72 Me. 249; Henkes v. City of Minneapolis, 42
zs See note 28 on following page.
BAR.XEG. 28
434 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
Contributory negligence of the injured party is, of course, a good
defense, and although, ordinarily, a person who deliberately attempts
to pass over a place which he knows to be dangerous cannot recover
for injuries incurred thereby, 29 the rule is not absolute. Thus, one
may know of the defective condition of a sidewalk, and yet not be
guilty of negligence in attempting to pass over it, provided he exer-
cised care commensurate with the circumstances. 30 The weather
records of the United States signal service are competent evidence
Minn. 530, 44 N. W. 1026; Seeley v. Town of Litchfleld, 49 Conn. 134; Gros-
senbach v. City of Milwaukee, 65 Wis. 31, 26 N. W. 182; Borough of Mauch
Chunk v. Kline, 100 Pa. St. 119; Chase v. City of Cleveland, 44 Ohio St. 505,
9 N. E. 225; City of Chicago v. Richardson, 75 111. App. 198; Kleng v. City
of Buffalo, 156 N. Y. 700, 51 N. E. 1091; Peard v. City of Mt. Vernon, 158
N. Y. 681, 52 N. E. 1125; Hyer v. City of Janesville, 101 Wis. 371, 77 N.
W. 729; Newton v. City of Worcester, 169 Mass. 516, 48 N. E. 274; Wesley
v. City of Detroit (Mich.) 76 N. W. 104; City of Lynchburg v. Wallace, 95
Va. 640, 29 S. E. 675.
28 McLaughlin v. City of Corry, 77 Pa. St. 109; Savage v. City of Bangor,
40 Me. 176; Adams v. Town of Chicopee, 147 Mass. 440, 18 N. E. 231; Gill-
rie v. City of Lockport, 122 N. Y. 403, 25 N. E. 357; Huston v. City of Coun-
cil Bluffs, 101 Iowa, 33, 69 N. W. 1130; Ellis v. City of Lewiston, 89 Me.
60, 35 Atl. 1016; Walsh v. City of Buffalo, 17 App. Div. 112, 44 N. Y. Supp.
942; McGowan v. City of Boston, 170 Mass. 384, 49 N. E. 633; Waltemeyer
v. Kansas City, 71 Mo. App. 354; Thompson v. Village of Saratoga Springs,
22 App. Div. 186, 47 N. Y. Supp. 1032; Miller v. City of Bradford, 186 Pa.
St. 164, 40 Atl. 409; Salzer v. City of Milwaukee, 97 Wis. 471, 73 N. W. 20.
2 Hudon v. City of Little Falls, 68 Minn. 463, 71 N. W. 678; Town of
Salem v. Walker, 16 Ind. App. 687, 46 N. E. 90; Lane v. City of Lewiston,
91 Me. 292, 39 Atl. 999; Rogers v. City of Bloomington (Ind. App.) 52 N. E.
242; Barce v. City of Shenandoah, 106 Iowa, 426, 76 N. W. 747; Boyle v.
Borough of Mahanoy City, 187 Pa. St. 1, 40 Atl. 1093, 42 Wkly. Notes Cas.
423.
so Schwingschlegl v. City of Monroe, 113 Mich. 683, 72 N. W. 7; Culverson
v. City of Maryville, 67 Mo. App. 343; McPherson v. City of Buffalo, 13
App. Div. 502, 43 N. Y. Supp. 658; Manross v. City of Oil City, 178 Pa. St.
276, 35 Atl. 959; City of Highlands v. Raine, 23 Colo. 295, 47 Pac. 283;
Llchtenberger v. Incorporated Town of Meriden, 100 Iowa, 221, 69 N. W. 424;
Pox v. City of Chelsea, 171 Mass. 297, 50 N. E. 622; Gutkind v. City of El-
roy, 97 Wis. 649, 73 N. W. 325; Village of Coffeen v. Lang, 67 111. App.
359; Village of Noble v. Hanna, 74 111. App. 564; Graham v. Town of Oxford,
105 Iowa, 705, 75 N. W. 473; Chilton v. City of St. Joseph, 143 Mo. 192. 44
S. W. 766; City of Hillsboro v. Jackson (Tex. Civ. App.) 44 S. W. 1010; Gif-
fen v. City of Lewiston (Idaho) 55 Pac. 545.
178) LIABILITY FOR INJURIES. 435
on the question of the amount of precipitation of rain or snow, 31 .
us well as on questions of temperature and mean or normal condi-
tions. A city is under no obligation to light its streets unless its
charter expressly imposes the duty, although the fact as to whether
it is lighted or not may, in certain cases, have a material bearing
upon the question of negligence, for the manifest reason that a street
in a given condition may be reasonably safe if lighted, but dangerous
if unlighted. 32
As a general proposition, the duty is not incumbent upon a city
to place fences, rails, or barriers on the margins of its streets, 33
unless special circumstances make such action a reasonable precau-
tion. 34
Improper Occupation and Use of Streets.
As it is the general duty of the city to keep its streets and side-
walks in a reasonably safe condition, it follows that any obstruc-
tion, structure, or appurtenance placed or allowed to remain on or
near them by permission of the city, actual or implied, and which
renders their use dangerous, may impose liability on the munici-
pality, if injury results therefrom. 35 It is not necessary that an
obstruction in a highway should endanger any particular mode of
si Evanston v. Gunn, 99 U. S. 660.
32 Randall v. Railroad Co., 106 Mass. 276; Miller v. City of St. Paul, 38
Minn. 134, 36 N. W. 271; McHugh v. City of St. Paul, 67 Minn. 441, 70 N.
W. 5; City of Chicago v. McDonald, 57 111. App. 250; City of Freeport v.
Isbell, 83 111. 440; Oliver v. City of Denver (Colo. App.) 57 Pac. 729.
33 Murphy v. Gloucester, 105 Mass. 470; Puffer v. Orange, 122 Mass. 389;
McHugh v. City of St. Paul, 67 Minn. 441, 70 N. W. 5; O'Malley v. Borough
of Parsons (Pa. Sup.) 43 Atl. 384; Crafter v. Railway Co., L. R. 1 C. P. 300.
But as to passages by excavations, etc., see City of Chicago v. Gallagher,
44 111. 295.
34 Burnham v. City of Boston, 10 Allen (Mass.) 290; Blaisdell v. City of
Portland, 39 Me. 113; Drury v. Inhabitants of Worcester, 21 Pick. (Mass.)
44; City of Freeport v. Isbell, 83 111. 440; Hey v. City of Philadelphia, 81
Pa. St. 44; O'Leary v. City of Mankato, 21 Minn. 65; City of Chicago v.
Gallagher, 44 111. 295; Ray v. City of Poplar Bluff, 70 Mo. App. 252.
SB Callanan v. Oilman, 107 N. Y. 360, 14 N. E. 264; Yates v. Town of War-
renton, 84 Va. 337, 4 S. E. 818; State v. Merritt, 35 Conn. 314; Cohen v.
Mayor, etc., 113 N. Y. 532, 21 N. E. 700; State v. Berdetta, 73 Ind. 185; Com.
v. Blaisdell, 107 Mass. 234; State v. Woodward, 23 Vt. 92; City of Hender-
son v. Burke (Ky.) 44 S. W. 422.
436 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
public travel in order to be a defect subjecting a municipality to-
responsibility to one injured thereby. It is sufficient that the ob-
struction makes dangerous any mode of travel which the public has
a right to use. 36 But this responsibility does not attach when the
user is an improper one. 37 Thus, liability may rest on the city for
injuries caused by signs, awnings, sheds, or cornices, 38 and it is no
defense that the obstruction was placed there by a third person. 39
If, however, the obstruction has been authorized by act of the legis-
lature, it cannot constitute a nuisance. 40
A similar duty is imposed upon cities in regard to objects which,,
in their nature, are calculated to frighten horses. If such an object
is allowed to remain upon or near the street after its presence has
become known, or, in the exercise of reasonable diligence, should
have become known, to the authorities, the city will be liable for in-
juries resulting from fright thereby caused to horses ordinarily tract-
able. 41 In the various cases of liability before mentioned it is im-
material that the street where the injury occurred had not been
legally laid out or dedicated. If the city has treated the thorough-
86 Powers v. City of Boston, 154 Mass. 60, 27 N. E. 995. Bicycles, Wheeler
v. City of Boone (Iowa) 78 N. W. 909.
37 Racing, McCarthy v. Portland, 67 Me. 167; Sindlinger v. City of Kansas
City, 126 Mo. 315, 28 S. W. 857; playing, Blodgett v. City of Boston, 8 Allen
(Mass.) 237; Jackson v. City of Greenville, 72 Miss. 220, 16 S. W. 382.
3 s Drake v. City of Lowell, 13 Mete. (Mass.) 292 (awning); Grove v. City
of Ft. Wayne, 45 Ind. 429 (cornice); Wells v. City of Brooklyn, 9 App. Div.
61, 41 N. Y. Supp. 143 (show case); Chase v. City of Lowell, 151 Mass. 422,
24 N. E. 212; Bieling v. City of Brooklyn, 120 N. Y. 98, 24 N. E. 389; Bohen
v. City of Waseca, 32 Minn. 176, 19 N. W. 730 (awning); Jones v. City of
New Haven, 34 Conn. 1 (dead lirnb of tree).
so Caton v. City of Sedalia, 62 Mo. App. 227.
o Gushing v. City of Boston, 128 Mass. 330; Com. v. Capp, 48 Pa. St. 53 r
City of North Vernon v. Voegler, 103 Ind. 327, 2 N. E. 821.
4i McKee v. Bidwell, 74 Pa. St. 218; City of Chicago v. Hoy, 75 111. 530-
(dead animal); Gushing v. Bedford, 125 Mass. 526 (red drinking trough);
Smith v. Inhabitants of Wendell, 7 Cush. (Mass.) 498 (stones); Ouverson v.
City of Graf ton, 5 N. D. 281, 65 N. W. 676 (a threshing machine); City of
Mt. Vernon v. Hoehn (Ind. App.) 53 N. E. 654 (mowing machine in street).
But cf. Sparr v. City of St. Louis, 4 Mo. App. 573, where plaintiff was not al-
lowed to recover for injuries caused by his horse taking fright at a steam
street-mending machine. Lane v. City of Lewiston, 91 Me. 292, 39 Atl. 999.
178) LIABILITY FOR INJURIES. 437
fare as a public street, the duty to keep it in reasonably safe condi-
tion is imposed. 42
Giving Notice of Injury.
The provision, either by statute or charter, is now very general
throughout the United States that, prior to the commencement of
an action against the city to recover for personal injuries, a formal
notice, of varying requirements, shall be served upon the city. Such
provisions are constitutional, and compliance with their provisions
is a condition precedent to the right of action. 43 Nor can the mu-
nicipality waive this compliance. 44 But a substantial compliance
with the requirements of the provision is sufficient. 45 Jt would
seem that such compliance the giving of the notice should be
pleaded, 46 although in some states the failure to do so does not ren-
der the complaint demurrable. 47
It must be borne in mind, as modifying and applying to all that
has been said respecting the duties of municipalities regarding the
construction and care of their streets and sidewalks, that the city
42 Phelps v. City of Mankato, 23 Minn. 277; Manderschid v. City of
Dubuque, 25 Iowa, 108; Todd v. City of Troy, 61 X. Y. 506; Coates v. Town
of Canaan, 51 Vt. 131; Johnson v. City of Milwaukee, 46 Wis. 568, 1 N. W.
187; Steel v. Borough of Huntingdon (Pa. Sup.) 43 Atl. 398.
43 Kellogg v. City of New York, 15 App. Div. 326, 44 N. Y. Supp. 39; City
of Ft. Worth v. Shero (Tex. Civ. App.) 41 S. W. 704.
*4 Starling v. Incorporated Town of Bedford, 94 Iowa, 194, 62 N. W. 674.
45 Stedman v. City of Rome, 88 Hun, 279, 34 N. Y. Supp. 737; Coffin v.
Inhabitants of Palmer, 162 Mass. 192, 38 N. E. 509; Hughes v. City of Law-
rence, 160 Mass. 474, 36 N. E. 485. Cf. last case with Gardner v. City of
New London, 63 Conn. 267, 28 Atl. 42; Laue v. City of Madison, 86 Wis.
453, 57 N. W. 93; Carstesen v. Town of Stratford, 67 Conn. 428, 35 Atl.
276; Hutchings v. Inhabitants of Sullivan, 90 Me. 131, 37 Atl. 883. Insuffi-
cient notice, see Driscoll v. City of Fall River, 163 Mass. 105, 39 N. E. 1003;
Dolan v. City of Milwaukee, 89 Wis. 497, 61 N. W. 564; Van Loan v. Village
of Lake Mills, 88 Wis. 430, 60 N. W. 710; Kennedy v. City of New York,
18 Misc. Rep. 303, 41 N. Y. Supp. 1077; Kelley v. City of Minneapolis (Minn.)
79 X. W. 653; Lyons v. City of Red Wing (Minn.) 78 X. W. 868. Failure to
give notice excused. Barclay v. City of Boston, 167 Mass. 596, 46 X. E. 113;
but see Saunders v. City of Boston, 167 Mass. 595, 46 X. E. 98.
46 Pardey v. Incorporated Town of Mechanicsville, 101 Iowa, 266, 70 N.
W. 189.
47 Frisby v. Town of Marshall. 119 X. C. 570, 26 S. E. 251; Hawley v. City
of Johnstown, 40 App. Div. 5GS, 58 X. Y. Supp. 49.
438 NEGLIGENCE OF MUIs 7 ICIPAL CORPORATIONS. (Ch. 11
is liable only for negligence, and is held only to the exercise of
reasonable care in their construction and maintenance, and to rea-
sonable diligence in the discovery and remedy of defects. 48
ALTERATION OF GRADES.
179. In the absence of any express legislative provision,
a municipality is not liable for injuries to abutting
property, resulting from change of grade, repairs,
or improvement of streets, provided that the city
uses reasonable care and skill in the performance of
the work, and that it is authorized by statute. 1
In Keining v. New York, L. & W. Ry. Co., 2 Andrews, J., says:
''The cases of change of grade furnish apposite illustrations. They
proceed on the ground that individual interests in streets are subor-
dinate to public interests, and that a lot owner, although he may
have built upon and improved his property with a view to the exist-
ing and established grade of the street, and relying upon its con-
tinuance, has no legal redress for any injury to his property, how-
ever serious, caused by a change of grade, provided only that the
change is made under lawful authority. This, it is held, is not a
taking of the abutting owner's property, and the injury requires
48 Rapho Tp. v. Moore, G8 Pa. St. 404; Todd v. City of Troy, 61 N. Y.
506; Hume v. City of New York, 47 N. Y. 639; Dewey v. City of Detroit,
15 Mich. 307; Doulon v. City of Clinton, 33 Iowa, 397; Mayor, etc., of New
York v. Sheffield, 4 Wall. 189; City of Centralia v. Krouse, 64 111. 19.
179. i Callender v. Marsh, 1 Pick. (Mass.) "418; Fellowes v. City of New
Haven, 44 Conn. 240; Brown v. City of Lowell, 8 Mete. (Mass.) 172; City of
Reading v. Keppleman, 61 Pa. St. 233; City of Lafayette v. Spencer, 14
Ind. 399; .Radcliff's Ex'rs v. Brooklyn, 4 N. Y. 195; St. Peter v. Denison,
58 N. Y. 416; Talbot v. Railroad Co., 151 N. Y. 155, 45 N. E. 382; City of
Quincy v. .Tones, 7G 111. 231; Wakefleld v. Newell, 12 R. I. 75; Mitchell v.
City of Rome, 49 Ga. 29; Hovey v. Mayo, 43 Me. 322; Alden v. City of
Minneapolis. 24 Minn. 254; Skinner v. Bridge Co., 29 Conn. 523; In re
Ehrsam, 37 App. Div. 272, 55 N. Y. Supp. 942; McCray v. Town of Fairmont
(W. Va.) 33 S. E. 245. Per contra, City of Cincinnati v. Penny, 21 Ohio St.
499. And the doctrine has been qualified in Kentucky. City of Louisville
v. Mill Co., 3 Bush (Ky.) 416; Kemper v. City of Louisville, 14 Bush (Ky.)
87; City of Louisville v. Hegan (Ky.) 49 S. W. 532.
2 128 N. Y. 157, at page 165, 28 N. E. 642.
179) ALTERATION OF GRADES. 439
no compensation." A more simple explanation of the foundation
of this doctrine is thus given by Parker, C. J., in Callender v. Marsh: 3
"Those who purchase house lots bordering upon streets are supposed
to calculate the chance of such elevations and reductions as the in-
creasing population of a city may require in order to render the
passage to and from the several parts of it safe and convenient;
and, as their purchase is always voluntary, they may indemnify
themselves in the price of the lot which they buy, or take the chance
of future improvements, as they see fit. * * * Every one who
purchases a lot upon the summit or on the decline of a hiU is pre-
sumed to foresee the changes which public necessity or convenience
may require, and may avoid or provide against a loss. Neither
does the property right of the adjacent owner give him any right
of lateral support in the material of the street, even by prescrip-
tion. 4 The suitableness of the adopted grade is immaterial, and
will not be inquired into by the court. 15 When the charter of the
city provides for assessment of damage and condemnation before
the proposed change is undertaken, this constitutes a condition
precedent, and must be observed. 8
Pablic Buildings.
The principles governing the liability of cities for injuries occur-
ring by reason of defects in the construction and operation of pub-
lic buildings are in no way different from those which determine the
corporate liability in the performance of other public functions,
the proposition being that no private action, unless authorized by
express statute, can be maintained against a city for the neglect of
a public duty imposed upon it by law for the benefit of the public,
and from the performance of which the corporation receives no
s 1 Pick. (Mass.) 418, at page 431.
4 City of Quincy v. Jones, 76 111. 231. In Transportation Co. v. City of
Chicago, 9 U. S. 635, the court points out that this doctrine in no way de-
parts from the common law as to the right of lateral support, viz. that the
right of lateral support extends only to the soil in its natural condition, and
does not protect whatever is placed upon the soil, increasing the downward
and lateral pressure.
s Snyder v. President, etc., of Rockport, 6 Ind. 237; Roberts v. City of
Chicago, 26 111. 249.
e Hurford v. City of Omaha. 4 Neb. 336; Garraux v. City Council of Green-
ville, 53 S. C. 575, 31 S. E. 597.
440 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
profit or advantage. In Hill v. City of Boston 7 it was held that a
child attending the public school, in a school house provided by
the city, could not recover for injuries sustained by reason of the
unsafe condition of a staircase therein. Gray, C. J., delivering the
opinion of the court, concludes as follows: "But, however it may
be where the duty in question is imposed by the charter itself, the
examination of the authorities confirms us in the conclusion that
a duty which is imposed upon an incorporated city, not by the terms
of its charter, nor for the profit of the corporation, pecuniarily or
otherwise, but upon the city as the representative and agent of the
public, and for the public benefit, and by a general law applicable
to all cities and towns in the commonwealth, and a breach of which
in the case of a town would give no right of private action, is a
duty owing to the public alone; and a breach thereof by a city, as
by a town, is to be redressed by prosecution in behalf of the public,
and will not support an action by an individual, even if he sustained
special damage thereby."
ACTS OF OFFICERS OR AGENTS.
180. A municipality is liable for the conduct of its corpo-
rate agents or officers, acting -within their author-
ity, when the act complained of is one of misfea-
sance, or consists in neglect of an absolute corporate
duty.
The affairs of municipal corporations must necessarily be con-
ducted through the intervention of agents who are more or less
representative of the corporate government, according to the nature
of the duty they are required to perform. To render the munici-
^ 122 Mass. 344. See, also, Bigelow v. Inhabitants of Randolph, 14 Gray
(Mass.) 541; Howard v. City of Worcester, 153 Mass. 426, 27 N. E. 11; Snider
v. City of St. Paul, 51 Minn. 466, 53 N. W. 763; Schauf's Adm'r v. City of
Paducah (Ky.) 50 S. W. 42, City hall, Gullikson v. McDonald, 62 Minn. 278,
64 N. W. 812. City parks and squares, Sheehan v. City of Boston, 171 Mass.
29G, 50 N. E. 543. In the following cases, arising out of injuries suffered in
the use of public buildings, recovery was allowed, the duty involved not being
a purely public one: Ban-on v. City of Detroit, 94 Mich. 601, 54 N. W. 273;
Briegel v. City of Philadelphia, 135 Pa. St. 451, 19 Atl. 1038; Ivies v. City of
Erie, 169 Pa. St. 598, 32 Atl. 621.
180) ACTS OF OFFICERS OR AGENTS. 441
pality liable for the act of its agent, it is essential, in the first in-
stance, that the latter should be an officer of the corporation, duly
-authorized to perform the duty whose breach caused the injury;
and the breach must occur in the performance of a corporate duty,
or a power constitutionally conferred. Thus, if the act complained
of be ultra vires, no action will lie against the city, for municipal
corporations can be held liable for such tortious conduct only as
occurs in the exercise of some power or duty conferred or imposed
by law. 1 And not only must the act be within the power conferred
on the municipality, and duly authorized or ratified by it, but it
must be done in good faith, in pursuance of the general authority
with which the officer is clothed to act for the city. 2 Thus, a city
is not liable for the act of a tax collector in bringing a malicious
suit against a person, unless it has authorized or ratified such suit. 3
ISO. i Loyd v. City of Columbus, 90 Ga. 20, 15 S. E. 818; City of Orlando
v. Pragg, 31 Fla. Ill, 12 South. 308; City of Albany v. Cunliff, 2 N. Y. 165,
reversing 2 Barb. (N. Y.) 190; Browning v. Board, 44 Ind. 11; Haag v. Board,
60 Ind. 511; City of Pekin v. Newell, 26 111. 320; Stoddard v. Village of Sara-
toga Springs, 127 X. Y. 201, 27 N. E. 1030; Smith v. City of Rochester, 76 N.
Y. 50G; Morrison v. City of Lawrence, 98 Mass. 219; Schumacher v. City of
St. Louis, 3 Mo. App. 297; City of New Orleans v. Kerr, 50 La. Ann. 413,
23 South. 384; Reynolds v. Board, 33 App. Div. 88, 53 N. Y. Supp. 75; Smith
v. Major, 16 Ohio Cir. Ct. R. 3(52, 8 Ohio Dec. 649.
2 Noble Tp. v. Aasen (N. D.) 76 N. W. 990; Reynolds v. Board, 33 App.
Div. 88, 53 N. Y. Supp. 75; Davidson v. City of New York, 24 Misc. Rep. 560,
54 N. Y. Supp. 51. Thus, a town is not liable for the unauthorized acts of its
officers, although done colore officii. In an action against a town for dam-
ages caused by the acts of its officers, the complaint must allege that such
acts were within the scope of their authority. Kreger v. Bismarck Tp.,
59 Minn. 3, 60 N. W. 675.
s Horton v. Newell, 17 R. I. 571, 23 Atl. 910; Donnelly v. Tripp. 12 R.
I. 97; New York & Brooklyn Sawmill & Lumber Co. v. City of Brooklyn.
71 N. Y. 580; Ham v. Mayor, etc., 70 N. Y. 459; Goddard v. Inhabitants
of Harpswell, 84 Me. 499, 24 Atl. 958; Fisher v. City of Boston, 104 Mass.
87; Alcorn v. City of Philadelphia, 44 Pa. St. 348; Reilly v. City of Philadel-
phia, 60 Pa. St. 467; Sewall v. City of St. Paul, 20 Minn. 511 (Gil. 459); City
of Chicago v. Joney, 60 111. 383; City of Kansas City v. Brady. 52 Kan. 297,
34 Pac. 884. Liability for wrongful acts authorized by municipality. Commer-
cial Electric Light & Power Co. v. City of Tacoma (Wash.) 55 Pac. 219: Holl-
man v. City of Platteville, 101 Wis. 94, 76 N. W. 1119; City of Oklahoma
City v. Hill, 6 Okl. 114, 50 Pac. 242.
NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Cll. 11
Nor are police officers of a city its agents in such a sense as to ren-
der it liable for their wrongful acts. 4
No liability attaches to the corporation for the acts of its officers
or agents performed under direct authority conferred by a valid act
of the legislature. 5 But, though the legislature has authorized the
execution of the work, it does not thereby exempt those authorized
to perform it from the obligation to use reasonable care that no un-
necessary damage shall be done in the execution. 6
In determining whether the officer whose conduct is complained
of is a servant or agent of the corporation, or a public or state offi-
cer, regard must be had to the character of the duty with the per-
formance of which he is charged. To constitute an officer a cor-
porate agent, so that the maxim respondeat superior may apply to-
his acts, it is not sufficient that he holds his position through the
act of the corporation, or is retained and controlled at its pleasure;,
it is still further essential to the relation that the duties with
which he is officially charged should relate peculiarly and solely to
the interest and benefit of the municipality in its segregated char-
acter. Unless these tests apply, the town or city is exonerated
from liability for his acts on the ground that the wrongful act com-
plained of is not its act, but that of a person who is deemed to be
a public officer, existing under independent provision of law; as an
officer who, though appointed and paid by the city or town, and
though, perhaps, its agent or servant for other purposes, is yet held
not to sustain this relation in respect to the particular act in ques-
tion. 7 Thus, a municipal board of police is distinctly an agency of
* Woodhull v. City of New York, 76 Him, 390, 28 N. Y. Supp. 120; Coley
v. City of Statesville, 121 N. C. 301, 28 S. E. 482; Stinnett v. City of Sher-
man (Tex. Civ. App.) 43 S. W. 847; Craig v. City of Charleston, 78 111. App.
312.
5 Callender v. Marsh, 1 Pick. (Mass.) 418; Bellinger v. Railroad Co., 23-
N. Y. 42; Sprague v. City of Worcester, 13 Gray (Mass.) 193; Pontiac v.
Carter, 32 Mich. 164; Snyder v. Town of Rockport, 6 Ind. 237; Bartlett v.
Town of Clarksburg (W. Va.) 31 S. E. 918; Doty v. Village of Port Jervis,
23 Misc. Rep. 313, 52 N. Y. Supp. 57.
6 Mersey Docks & Harbour Board v. Gibbs, L. R. 1 H. I,. 93, 11 H. L. Gas.
686.
T City of Chicago v. McGraw, 75 111. 566; Backer v. Commissioners, 66 111.
App. 507; Kelly v. Cook (R. I.) 41 Atl. 571.
180) ACTS OF OFFICERS OR AGENTS. 44S
the state government, and not of the municipality, 8 and the chief
of a city police force is the officer of the state, and not of the mu-
nicipality where he is employed. 9
It was held that no liability attached to a municipal corporation
for negligence or misconduct of its officers in the following cases:
Members of the fire department, 10 board of health, 11 pound keeper, 12
city engineer, 13 board of public works, 14 superintendent of streets, 1 *
board of water commissioners, 16 road commissioners, 17 highway sur-
s People v. Mahaney, 13 Mich. 481; People v. Hurlbut, 24 Mich. 44; Com.
v. Plaisted, 148 Mass. 375, 19 X. E. 224; People v. McDonald, 69 N. Y. 362;
City of Chicago v. Wright, 69 111. 318; State v. Covington, 29 Ohio St. 102;
Elliott v. City of Philadelphia, 75 Pa. St. 347; Calwell v. City of Boone, 51
Iowa, 687, 2 N. W. 614; Bowditch v. City of Boston, 101 TJ. S. 16; Jolly's
Adm'x v. City of Hawesville, 89 Ky. 279, 12 S. W. 313; WoodhuU v. City of
New York, 150 X. Y. 450, 44 X. E. 1038; Gullikson v. McDonald, 62 Minn.
278. 64 N. W. 812.
Burch v. Hardwicke, 30 Grat. (Va.) 24. Xor is a city liable for the
act of police officer in killing a dog running at large contrary to ordinance.
Moss v. City Council of Augusta, 93 Ga. 797, 20 S. E. 653; Van Hoosear
v. Town of Wilton, 62 Conn. 106, 25 Atl. 457.
10 Hafford v. City of New Bedford. 16 Gray (Mass.) 297; Fisher v. City of
Boston. 104 Mass. 87; Lawson v. City of Seattle, 6 Wash. 184, 33 Pac. 347;
Wild v. City of Paterson, 47 N. J. Law, 406, 1 Atl. 490; Alexander v. City
of Vicksburg, 68 Miss. 564, 10 South. 62; Gillespie v. City of Lincoln, 35
Neb. 34, 52 X. W. 811; Dodge v. Granger, 17 R. I. 664, 24 Atl. 100; Fred-
erick v. City of Columbus, 58 Ohio St. 538, 51 X. E. 35.
11 Forbes v. Board, 28 Fla. 26, 9 South. 862; Bates v. City of Houston,
14 Tex. Civ. App. 287, 37 S. W. 383; Love v. City of Atlanta, 95 Ga. 129,
22 S. E. 29; Clayton v. City of Henderson (Ky.) 44 S. W. 667; Webb v. Board
(Mich.) 74 X. W. 734.
12 Rounds v. City of Bangor, 46 Me. 541. And see Summers v. Daviess Co.,
103 Ind. 262, 2 X. E. 725.
is Sievers v. City & County of San Francisco. 115 Cal. 648. 47 Pac. 687.
i* Kuehn v. City of Milwaukee, 92 Wis. 263, 65 X. W. 1030; Xorton v.
City of Xew Bedford, 166 Mass. 48, 43 X. E. 1034.
is Jensen v. City of Waltham, 166 Mass. 344, 44 X. E. 339; McCann v.
City of Waltham, 163 Mass. 344, 40 X. E. 20; Barney v. City of Lowell, 98
Mass. 570.
is Gross v. City of Portsmouth (X. H.) 33 Atl. 256. But see Bailey v.
Mayor, etc., 3 Hill (X. Y.) 531; Miller v. City of Minneapolis (Minn.) 77 X. W.
788.
IT Bryant v. Inhabitants of Westbrook, 86 Me. 450, 29 Atl. 1109; nor bridge
444 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
veyors, 18 police officers, 19 overseers of the poor, 20 assessors and col-
lectors, 21 selectmen, 22 board of aldermen, 23 and the city government
itself. 24 And it is, of course, immaterial whether the person com-
mitting the act was or was not a corporate agent, if the act itself
was unauthorized. 25
ACTS ULTRA VIRES.
181. Municipal corporations can be held liable for such tor-
tious conduct only as occurs in the exercise of some
power or duty conferred or imposed by law. If
the conduct be unauthorized by either charter or
statute, it cannot be the basis of a suit for damages
against the city. 1
Thus, cutting a ditch outside of the city limits is an act ultra
vires, for which the city is not liable to the owner of the premises
damaged. 2 Neither can a municipality commit libel. 3 Nor can the
tenders, Daly v. City & Town of New Haven, 69 Conn. 644, 38 Atl. 397. But
see Inman v. Tripp, 11 R. I. 520.
is Walcott v. Inhabitants of Swampscott, 1 Allen (Mass.) 101.
i Buttrick v. City of Lowell, 1 Allen (Mass.) 172.
*o City of New Bedford v. Inhabitants of Taunton, 9 Allen (Mass.) 207.
i Rossire v. City of Boston, 4 Allen (Mass.) 57.
22 Cushing v. Inhabitants of Bedford, 125 Mass. 526.
* Child v. City of Boston, 4 Allen (Mass.) 41.
2* Griggs v. Foote, 4 Allen (Mass.) 195.
25 Easterly v. Incorporated Town of Irwin, 99 Iowa, 694, 68 N. W. 919;
City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949; Fox v. City of Rich-
mond (Ky.) 40 S. W. 251; Gray v. City of Detroit, 112 Mich. 657, 71 N. W.
1107; Royce v. City of Salt Lake City, 15 Utah, 401, 49 Pac. 290.
181. i Stetson v. Kempton, 13 Mass. 272; Inhabitants of Norton v. In-
habitants of Mansfield, 16 Mass. 48; Cavanagh v. City of Boston. 139 Mass.
426, 1 N. E. 834; Mayor, etc., of City of Albany v. Cunliff, 2 N. Y. 105; Bar-
bour v. City of Ellsworth, 67 Me. 294; Smith v. City of Rochester. 76 N. Y.
506; City of Peru v. Gleason, 91 Ind. 566; Donnelly v. Tripp, 12 R. I. 97;
City of Chicago v. Turner, 80 111. 419; Cheeney v. Town of Brookfield, 60 Mo.
53; Boze v. City of Albert Lea (Minn.) 76 N. W. 1131; Hoggard v. City of
Monroe (La.) 25 South. 349; Brunswick Gaslight Co. v. Brunswick Village
Corp., 92 Me. 493, 43 Atl. 104.
2 Loyd v. City of Columbus, 90 Ga. 20, 15 S. E. 818; City of Orlando v.
Rowland v. Inhabitants of Maynard, 159 Mass. 434, 34 N. E. 515.
181) ACTS ULTRA VIRES. 445
wrongful act of a municipality be characterized as gross and will-
ful, so as to render it liable for vindictive damages; compensatory
damages alone can be recovered. 4 A fortiori, a municipal corpora-
tion cannot be legally negligent in the doing of an act which it was
unlawful for it to do; as, in placing or failing to place a railing upon
a bridge which was the property of the state. 5 The tendency of
recent decisions, however, is to impose liability upon the corpora-
tion whenever the negligent act, although in excess of the power
actually vested, falls within its general scope. Thus, where the city
attempted to avoid liability for negligence in the construction of a
certain sewer by claiming that its construction was an unlawful
act, upon which negligence could not be predicated, the court, in
overruling the point, said: "If it were ultra vires in such sense as
not to be within the scope of the corporate powers of the defend-
ant, the latter would not be answerable for the consequences re-
sulting from it, although the persons causing the work to be done
were its officers or agents, and assumed to act as such in doing it.
But that is not the situation presented here. It was legitimately
within the corporate power of the defendant to construct sewers,,
and it may be that in attempting to execute it the constituted au-
thorities went to some extent beyond the authority conferred upon,
the corporation and them as its officers, * * * and, thus act-
ing, the defendant may be chargeable with the injury to others re-
sulting from their failure to properly perform the duty which they
had assumed to discharge, although it may have been occasioned
by irregularity, or acts on their part in excess of authority." 8 And
Pragg, 31 Fla. Ill, 12 South. 368; Mayor, etc., of City of Albany v. Cunliff,
'2 X. Y. 105. reversing 2 Barb. (N. Y.) 190; Browning v. Board, 44 Ind. 11, 13;.
Haag v. Board, 60 Ind. 511; City of Pekin v. Newell, 26 111. 320; Stoddard v.
Village of Saratoga Springs, 127 N. Y. 261, 27 N. B. 1030; Smith v. City
of Rochester, 76 N. Y. 506; Morrison v. City of Lawrence, 98 Mass. 219;
Schumacher v. City of St. Louis, 3 Mo. App. 297. Location of pest house
within prohibited territory not ultra vires. Clayton v. City of Henderson
(Ky.) 44 S. W. 667.
4 City of Chicago v. Kelly, 69 111. 475; City of Chicago v. Langlass, 52 111.
256, 66 111. 361; Hunt v. City of Boonville, 65 Mo. 620. But see McGary v.
City of Lafayette, 12 Rob. (La.) 668, 4 La. Ann. 440.
s Carpenter v. City of Cohoes, 81 N. Y. 21; Sewell v. City of Cohoes, 75-
N. Y. 45.
e Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030,
446 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
the fact that licenses have been illegally granted has not, in sev-
eral instances, been held sufficient to defeat an action for damages
arising from negligence. 7 The principle upon which the immediately
foregoing decisions rest is agreeable to reason and equity. "It is
not just to confer upon corporate bodies the ability to manage prop-
erty and to engage in business enterprises, and then to restrict the
remedies of individuals, who are in no way put upon inquiry as to
the extent of these powers, to cases where the corporation has kept
strictly within its charter rights." 8
Respondeat Superior.
The general principles of this subject, as already considered', 9
apply equally when the municipality is one of the contracting par-
ties. It is therefore not intended to review the subject in this con-
nection, but merely to restate a few of the more important prin-
ciples as directly applied to municipal corporations.
The general rule is that the principle of respondeat superior does
not extend to cases of independent contracts, where the party for
whom the work is to be done is not the immediate superior of those
guilty of the wrongful act, and has no choice in the selection of
workmen, and no control over the manner of doing the work under
the contract. 10 There are, however, modifications of this general
rule; as when the character of the work to be done is intrinsically
dangerous, and the injury complained of is the direct and natural
result of its unskillful performance. 11 Thus, where the obstruction
or defect caused or erected in the street is purely collateral to the
work contracted to be done, and is entirely the result of the wrong-
ful acts of the contractor or his workmen, the rule is that the em-
ployer is not liable; but, when the obstruction or defect which oc-
casioned the injury results directly from the acts which the con-
See, also, Stanley v. City of Davenport, 54 Iowa, 463, 2 N. W. 1064, and 6 N. W.
706; Gordon v. City of Taunton, 126 Mass. 349. And cf. Bogie v. Town of
Waupun, 75 Wis. 1, 43 N. W. 667, with Houfe v. Town of Fulton, 34 Wis. 608.
i Cohen v. Mayor, etc., 113 N. Y. 532, 21 N. E. 700.
s Jones, Neg. Mun. Corp. 175.
See ante, c. 4.
10 Village of Jefferson v. Chapman, 127 111. 438, 20 N. E. 33.
11 City of Circleville v. Neuding, 41 Ohio St. 465; Carman v. Railroad Co.,
4 Ohio St. 399; Prentiss v. City of Boston, 112 Mass. 43; Boze v. City of
Albert Lea (Minn.) 76 N. W. 1131.
181) ACTS ULTRA VIRES. 447
tractor agrees and is authorized to do, the person who employs the
contractor, and authorizes him to do these acts, is equally liable to
the injured party. 12 The primary duty rests upon the city to keep
its thoroughfares in a reasonably safe condition for public travel;
and when a projected improvement, repair, or alteration necessi-
tates the tearing up or excavation of a street it cannot relieve itself
of this duty by placing the work in the hands of other parties. 13
"When the negligence of the contractor is collateral, and does not
involve the breach of a primary duty owed by the city, the former
alone is responsible. And it was so held in a case where the work
undertaken for the city involved the placing of a hydrant in college '
grounds. The contractors dug a ditch for this purpose, and negli-
gently left it unguarded, and it was held that no liability thereby
attached to the city. 1 * Where the city retains any material part
in the management or control of the work, or directs the manner
of its performance, it will not be relieved from liability for injuries
resulting from its negligent performance. 15 Of course, if the re-
12 Robbins v. City of Chicago, 4 Wall. 657; Prentiss v. City of Boston, 112
Mass. 43; City of Circleville v. Neuding, 41 Ohio St. 465; City of Logansport
v. Dick, 70 Ind. 65. A town that contracts with an individual for the repair
of a highway, including the destruction by fire of brush which has theretofore
been cut and piled, is not liable for damages to a third person, caused by
negligence of such contractor in burning the brush. Shute v. Princeton Tp.,
58 Minn. 337, 59 N. W. 1050.
is Turner v. City of Xewburgh, 109 N. Y. 301, 16 N. E. 344; City of Circle-
ville v. Neuding, 41 Ohio St. 465; Hincks v. City of Milwaukee, 46 Wis. 559,
1 N. W. 230; Brooks v. Inhabitants of Somerville. 106 Mass. 271; City of Har-
risburg v. Saylor, 87 Pa. St 216; Southwell v. City of Detroit, 74 Mich.- 438,
42 N. W. 118; Vogel v. City of Xew York, 92 N. Y. 10; Fowler v. Town of
Strawberry Hill, 74 Iowa, 644, 38 N. W. 521; Mayor, etc., of City of Balti-
more v. O'Donnell, 53 Md. 110; Mayor, etc., of City of Savannah v. Waldner,
49 Ga. 316; Todd v. City of Chicago, 18 111. App. 565; Grant v. City of Still-
water, 35 Minn. 242, 28 X. W. 660.
i* Harvey v. City of Hillsdale, 86 Mich. 330, 49 N. W. 141. See, also, Erie
School Dist. v. Fuess, 98 Pa. St. 600; Van Winter v. Henry Co., 61 Iowa, 684,
17 N. W. 94; City of Chicago v. Robbins, 4 Wall. 657, 2 Black, 418. But when
plaintiff, when using the highway, was injured through the negligence of a
contractor in firing a blast, it was held he could not recover. Heeringtou
v. Village of Lansingburgh, 110 N. Y. 145, 17 N. E. 728. Although this case
comes close to the dividing line, it does not conflict with the principle as
stated. Cf. Carman v. Railroad Co., 4 Ohio St. 399.
15 Kelly v. Mayor, etc., 11 N. Y. 432; City of Cincinnati v. Stone, 5 Ohio
448 NEGLIGENCE OF MUNrCIPAL CORPORATIONS. (Ch. 11
served control or direction is unimportant, or foreign to the causes-
leading up to the injury complained of, the question of liability will
not be thereby affected. 16 In line, also, with the general rule of
respondeat superior, it must appear that the tortious act committed
by the municipal employe", and sought to be charged to the corpo-
ration, was committed within the scope of the authority conferred
by the city. 17
There seems to be no valid reason why a municipal corporation
may not avail itself of the defense of fellow servant, under the same
rules and limitations which apply in the case of the individual em-
ployer. 18
JUDICIAL On LEGISLATIVE DUTIES.
182. No implied liability rests upon a municipal corpora-
tion for the misfeasance or nonfeasance of discre-
tionary powers -which are legislative or govern-
mental in character.
As already observed, governmental duties are those which are
assumed by the state for the general benefit and protection of all
its citizens. Their performance involves the exercise of a sover-
eign power> and the manner of the performance cannot be meas-
ured by the ordinary standard of reasonable care, which is the
criterion of individual conduct. If, therefore, in the exercise of
these governmental functions, which necessarily devolve upon every
community and municipality, a miscarriage occurs, whether through
omission or careless performance, the individual injured thereby can-
not maintain an action for damages against the derelict agency. 1
On this point Judge Dillon says: 2 "But the discretion, whatever
St. 38; City of St. Paul v. Seitz, 3 Minn. 297 (Gil. 205); Schumacher v. City
of New York (Sup.) 57 N. Y. Supp. 908.
IB Jones v. City of Liverpool, 14 Q. B. Div. 890.
17 Alcorn v. City of Philadelphia, 44 Pa. St. 348; Sherman v. City of Grena-
da, 51 Miss. 186; Waller v. City of Dubuque, 69 Iowa, 541, 29 N. W. 456.
is Conley v. City of Portland, 78 Me. 217, 3 Atl. 658; but a laborer placing
pipes in a trench dug by another set of employes is not a fellow sen- ant of the
latter, Wanamaker v. City of Rochester, 63 Hun, 625, 17 N. Y. Supp. 321.
182. i 2 Dill. Mun. Corp. (4th Ed.) 949; Jones, Neg. Mun. Corp. 27.
2 2 Dill. Mun. Corp. (4th Ed.) 966.
182) JUDICIAL OR LEGISLATIVE DUTIES. 449
its grounds, or precise boundaries or difficulties in its application,
is well established; and the latter class of corporations [municipal]
is considered to be impliedly liable (unless the legislation nega-
tives such liability) for wrongful acts done in what is termed their
private or corporate character, and from which they derive some
special or immediate advantage or emolument, but not as to such
acts done in their public capacity, as governing agencies, in the
discharge of duties imposed for the public or general (not corpo-
rate) benefit." 3
Discretionary Powers.
Where the exercise of public or legislative power conferred by
statute is discretionary, and not absolute, in character, no liability
can be based upon the failure or omission to exercise it.* Thus,
s See Western Saving Fund Soc. of Philadelphia v. City of Philadelphia,
31 Pa. St. 175, 189; Oliver v. City of Worcester, 102 Mass. 489; City of
Petersburg v. Applegarth's Adni'r, 28 Grat. (Va.) 321. For discussion of dis-
tinction between public and private functions of municipal corporations, see
opinion of Folger, J., in Maxniilian v. Mayor, etc., 62 N. Y. 160. See, also,
City of Galveston v. Posnainsky, 62 Tex. 118; Aldrich v. Tripp, 11 R. I. 141;
Crossett v. City of Janesville, 28 Wis. 420; Hannon v. St. Louis Co., 62 Mo.
313. And where an injury was received by reason of a defectively constructed
highway it was held a good defense that the manner of its construction was
authorized by legislature. Bedford v. Coggeshall, 19 R. I. 313, 36 Atl. 89.
* Fair v. City of Philadelphia, 88 Pa. St 309; Borough of Xorristown v.
Fitzpatrick, 94 Pa. St. 121; McDndo v . City of Chester, 117 Pa, St. 414,
12 Atl. 421; Lehigh Co. v. Hoffort, 116 Pa. St. 119, 9 Atl. 177; Cole v. Trus-
tees, 27 Barb. (N. Y.) 218; Clemence v. City of Auburn, 66 N. Y. 334; Hyatt
v. Trustees, 44 Barb. (X. Y.) 385; Seaman v. Mayor, etc., 80 X. Y. 239; Duke
v. Mayor, etc., 20 Ga. 635; Rivers v. Council, 65 Ga. 376; City of Aurora
v. Pulfer, 56 111. 270; Goodrich v. City of Chicago, 20 111. 445; City of Free-
port v. Isbell, 83 111. 440; Western College of Homeopathic Medicine v. City
of Cleveland, 12 Ohio St. 375; City of Dayton v. Pease, 4 Ohio St. 80; City
of Peru v. Gleason, 91 Ind. 566; City of Anderson v. East, 117 Ind. 126, 19
X. E. 726; Robinson v. City of Evausville, 87 Ind. 334; White v. Yazoo
City, 27 Miss. 357; Kelley v. City of Milwaukee, 18 Wis. 83; Hewison v.
City of New Haven, 37 Conn. 475; City of Detroit v. Beckman, 34 Mich.
125; Schattner v. City of Kansas, 53 Mo. 162; Kiley v. City of Kansas, 87
Mo. 103; Armstrong v. City of Brunswick, 79 Mo. 319; Reock v. Mayor, etc.,
33 N. J. Law, 129; Cole v. City of Xashville, 4 Sneed (Tenn.) 102; Lindholm
v. City of St. Paul, 19 Minn. 245 (Gil. 204); Ball v. Town of Woodbine, 61
Iowa, 83, 15 X. W. 846; Van Horn v. City of Des Moines, 63 Iowa, 447, 19
BAR.XEG. 29
450 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
the power is generally conveyed by its charter to the municipality
to make such improvements in opening and grading streets as it
may deem expedient, and as the interest of the public may require;
but if the corporation omit or neglect to take such action as open-
ing a street, no matter how urgent the circumstances may be, it
cannot be made liable therefor by reason of injuries resulting to an
individual. 5 So, also, no liability rests upon a municipal corpora-
tion for failure to abate a nuisance, 6 or to provide a proper supply
of water and apparatus for extinguishing fires. 7 And where the
municipality either fails to adopt by-laws and ordinances for proper
government and the protection of its citizens, or, having adopted
such by-laws, fails to enforce them, no liability arises from result-
ing injury. 8 Thus, although the city of Milwaukee had power, by
N. W. 293; Randall v. Railroad Co., 106 Mass. 276; McDonough v. Mayor,
etc., 6 Nev. 90; Fowle v. Council, 3 Pet. 398.
5 Collins v. Mayor, etc., 77 Ga. 745. See, also, Bauman v. City of De-
troit, 58 Mich. 444, 25 N. W. 391; Wilson v. Mayor, etc., 1 Denio (N. Y.)
595; City of Anderson v. East, 117 Ind. 126, 19 N. E. 726; Keating v. City of
Kansas City, 84 Mo. 415; Horton v. Mayor, etc., 4 Lea (Tenn.) 39; McDade
v. City of Chester, 117 Pa. St. 414, 12 Atl. 421; Daly v. City & Town of
New Haven, 69 Conn. 644, 38 Atl. 397.
e McCutcheon v. Homer, 43 Mich. 483, 5 N. W. 668; Armstrong v. City of
Brunswick, 79 Mo. 319; City of Ft. Worth v. Crawford, 64 Tex. 202; Tainter
v. City of Worcester, 123 Mass. 311; Ball v. Town of Woodbine, 61 Iowa,
83, 15 N. W. 846; Smoot v. Mayor, etc., 24 Ala. 112; Walker v. Hallock, 32
Ind. 239; Borough of Norristown v. Fitzpatrick, 94 Pa. St. 121; McDade v.
City of Chester, 117 Pa. St. 414, 12 Atl. 421; Kistner v. City of Indianapolis.
100 Ind. 210; Hill v. City of Boston, 122 Mass. 344; People v. City of
Albany, 11 Wend. (N. Y.) 539; Fowle v. Council, 3 Pet. 398; Leonard v. City
of Hornellsville (Sup.) 58 N. Y. Supp. 266.
T Tainter v. City of Worcester, 123 Mass. 311; Patch v. City of Covington,
17 B. Mon. (Ky.) 722; Vanhorn v. City of Des Moines, 63 Iowa, 447, 19 N. W.
293; Brinkmeyer v. City of Evansville, 29 Ind. 187; Wright v. Council. 78
Ga. 241; Eastman v. Meredith, 36 N. H. 284; Hafford v. City of New Bed-
ford, 16 Gray (Mass.) 297; Torbush v. City of Norwich. 38 Conn. 225; Ogg v.
City of Lansing, 35 Iowa, 495; Elliott v. City of Philadelphia, 75 Pa, St.
347; Frederick v. City of Columbus, 58 Ohio St. 538, 51 N. E. 35; Irvine v.
Mayor, etc. (Tenn. Sup.) 47 S. W. 419. Nor does any liability exist for the
negligence of a fire insurance patrol, Boyd v. Insurance Patrol, 113 Pa. St.
269, 6 Atl. 536; or of the board of fire commissioners, O'Leary v. Board, 79
Mich. 281, 44 N. W. 608.
Fowle v. Council, 3 Pet. 398, 409; McCrowell v. Mayor, etc., 5 Lea (Teiin.)
183) CONFLAGRATIONS AND DESTRUCTION BY MOBS. 451
its charter, to restrain the running at large of swine, yet a com-
plaint alleging special damages by reason of the council neglecting
to pass any ordinance upon that subject was held not to state a
cause of action. 9 Nor is a city liable for the failure of its officers
to suppress coasting; 10 nor for an improper or mistaken exercise
of discretion in the matter of legislative functions. And where in-
jury occurred by reason of a horse becoming frightened while being
driven along an adjoining street, by the firing of a cannon on the
common, under a license granted in pursuance of an ordinance,
the city was held not liable; the court saying: "The ordinance
set out in the declaration is not the exercise of an owner's author-
ity over his property, but is a police regulation of the use of a pub-
lic place by the public, made by the city under its power to make
needful and salutary by-laws, without regard to the accidental own-
ership of the fee." " Under the same principle, a municipality is not
liable for the suspension of an ordinance forbidding fireworks dur-
ing the time plaintiff's house was destroyed by fireworks negligently
used by boys. 12
CONFLAGRATIONS AND DESTRUCTION BY MOBS.
183. Although existing independently of any granted
power, cities, and even individuals, may, in cases
of urgent public necessity, assume the exercise of
certain discretions, and, if justified by the circum-
stances, no liability will be incurred for resultant
injury to private property.
685; Griffin v. Mayor, etc., 9 N. Y. 456; Lorillard v. Town of Munroe, 11 N.
Y. 392, 396; Kiley v. City of Kansas, 87 Mo. 103; Chandler v. City of Bay St.
Louis, 57 Miss. 327; City of Anderson v. East, 117 Ind. 126, 19 N. E. 726.
Kelley v. City of Milwaukee, 18 Wis. 83. And see, on same point, Levy
v. Mayor, etc., 1 Sandf. (N. Y.) 465, approved in Lorillard v. Town of Mun-
roe, 11 N. Y. 392.
10 City of Wilmington v. Vandegrift, 1 Marv. 5, 29 Atl. 1047.
11 Lincoln v. City of Boston, 148 Mass. 578, 580, 20 N. E. 329.
12 Hill v. Board, 72 N. C. 55. And generally, see City of Pontiac v. Carter,
32 Mich. 164; Griffin v. Mayor, etc., 9 N. Y. 456; Dewey v. City of Detroit,
15 Mich. 307; Grant v. City of Erie, 69 Pa. St. 420.
452 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
Thus, in case of conflagrations, when the necessity is urgent,
buildings may be destroyed to prevent the spread of the fire. The
maxim, "Salus populi suprema est lex," has thus been exemplified
from ancient times; Lord Coke saying in an early case: 1 "For
the commonwealth a man shall suffer damage; as, for the saving
of a city or town, a house shall be plucked down if the next be on
fire. This every man may do without being liable to an action."
In such cases no recovery can be had against the municipality in
the absence of statute or provision in the charter expressly creat-
ing such liability, it being held that such a destruction is not a
taking of private property for public uses. 2 And when such provi-
sion is made for compensation, to support a claim for property thus
destroyed it must appear that the circumstances clearly coincide
with the provisions of the enactment. 3
When private property is destroyed by mobs, no liability for com-
pensation rests upon the municipality, even if it has failed to take
ordinary measures for its protection under authority expressly con-
ferred for the purpose, 4 unless such remedy has been expressly
provided either by charter or by act of legislature. 8
183. i Mouse's Case, 12 Coke, 63; see, also, Maleverer v. Spinke, 1 Dyer,
35; Respublica v. Sparhawk, 1 Ball. (Pa.) 357; Taylor v. Inhabitants of Ply-
mouth, 8 Mete. (Mass.) 462; Neuert v. City of Boston, 120 Mass. 338; Smith
v. City of Rochester, 76 N. Y. 506; Bowditch v. City of Boston, 101 U. S. 16.
2 Field v. City of Des Moines, 39 Iowa, 575.
s Coffin v. Town of Nantucket, 5 Cush. (Mass.) 269; Ruggles v. Inhabitants
of Nantucket, 11 Cush. (Mass.) 433; Hafford v. City of New Bedford, 16 Gray
(Mass.) 297; Neuert v. City of Boston, 120 Mass. 338; Howard v. City and
County of San Francisco, 51 Cal. 52; McDonald v. City of Red Wing, 13 Minn.
38 (Gil. 25); Western College of Homeopathic Medicine v. City of Cleveland,
12 Ohio St. 375; Hayes v. City of Oshkosh, 33 Wis. 314. The right of recov-
ery by the property owner is not affected by the fact that the property was
insured, the insurance company becoming subrogated to the rights of the
assured. Mayor of City of New York v. Pentz, 24 Wend. (N. Y.) 668.
* Hart v. Bridgeport, 13 Blatchf. 289, Fed. Cas. No. 6,149; Western Col-
lege of Homeopathic Medicine v. City of Cleveland, 12 Ohio St. 375; Prather
v. City of Lexington, 13 B. Mon. (Ky.) 559; Chicago League Ball Club v. City
Of Chicago, 77 111. App. 124.
e Underbill v. City of Manchester, 45 N. H. 214; Russell v. Mayor, etc.,
2 Denio (N. Y.) 461; Campbell's Adm'x v. Council, 53 Ala. 527; Allegheny
Co. v. Gibson's Sons & Co., 90 Pa. St 297; City of Chicago v. Manhattan
184) PUBLIC HEALTH AND SANITATION. 453
PUBLIC HEALTH AND SANITATION.
184. The preservation of the health of the public by means
of proper measures for sanitation is like-wise a gov-
ernmental duty, resting upon the state, and not
upon the municipality; and, in the absence of spe-
cial provision by statute, no obligation to this end
rests upon any locality or municipality; and, even
if such obligation is assumed, and negligently car-
ried out, no liability -will result.
This is exemplified in the negligence of the properly constituted
"board of health to perform its special duties, no responsibility for
such negligent conduct resting upon the city. 1
-Cement Co., 178 111. 372, 53 N. E. 68; Salisbury v. Washington Co., 22 Misc.
Rep. 41, 48 N. Y. Supp. 122.
184. i Bryant Y . City of St. Paul, 33 Minn. 289, 23 N. W. 220. In this
case the plaintiff sought to charge the defendant for the misfeasance or neg-
ligence of the board of health or its agents in leaving a vault upon private
premises exposed and open after removing its contents, in consequence of
which plaintiff, without fault on her part, fell into the vault, and was in-
jured. In deciding the case the court says (page 293, 33 Minn., and page
221, 23 N. W.: "The question, then, presented for our consideration, is
whether the alleged negligence of the board created a corporate liability as
against the city. The duty is imposed by the legislature upon the board
of health, under the police power, to be exercised for the benefit of the public
generally. It is one in which the city corporation has no particular interest,
and from which it derives no special benefit in its corporate capacity. And
we think it clear that, as respects an agency thus created for the public
service, the city should not be held liable for the manner in which such serv-
ice is performed by the board. 2 Dill. Mun. Corp. (4th Ed.) 976, etc. It is
bound to discharge its official duty, not by virtue of its responsibility to the
municipality, but for the general welfare of the community, and no action
will lie against the city for the acts of the board, unless given by statute."
City of Richmond v. Long's Adm'rs, 17 Grat (Va.) 375. And see Fisher v.
City of Boston, 104 Mass. 87; Hayes v. City of Oshkosh, 33 Wis. 314; Max-
milian v. City of New York, 62 N. Y. 160; Ogg v. City of Lansing, 35 Iowa,
495; Welsh v. Village of Rutland, 56 Vt. 228; Tindley v. City of Salem, 137
Mass. 171; Condict v. Jersey City, 46 N. J. Law, 157; Smith v. City of Roch-
ester, 76 N. Y. 506; Webb v. Board (Mich.) 74 N. W. 734.
454 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
QUASI MUNICIPAL CORPORATIONS.
185. In a majority of states quasi municipal corporations
are not liable for failure to maintain high-ways and
bridges in a reasonably safe condition. But the de-
cisions are largely dictated by statutes, and do not
establish the foregoing rule on principle.
As already stated, 1 quasi municipal corporations are merely polit-
ical divisions of the state, created for purposes of convenience in
administering the general government. They are generally created
without the volition or consent of the inhabitants of the territory
involved, and are, therefore, more restricted in their powers, rights,
and responsibilities. Counties, townships, school districts, and the
New England towns belong to this class of corporations.
It is generally supposed and asserted to be the well-settled law
of this country that a clearly-drawn distinction exists between the
liability of chartered municipal corporations proper and that of
quasi municipal corporations, for negligence regarding the construc-
tion and maintenance of highways and bridges, 2 but a careful ex-
amination of the adjudicated cases discloses that they are by no
means entirely harmonious, and that the foregoing principle cannot
be thus broadly asserted. 3 If a defined locality is endowed by the
185. i See ante, p. 425.
22 Dill. Mun. Corp. (4th Ed.) 997. And see, also, Id. 1023b; Shear. &
R. Neg. (4th Ed.) 256, 289, citing Russell v. Men of Devon, 2 Term R. 667;
Weightman v. Washington, 1 Black, 39; Riddle v. Proprietors of Locks, 7
Mass. 169; Mower v. Inhabitants of Leicester, 9 Mass. 247; Beardsley v.
Smith, 16 Conn. 375; Jones v. City of New Haven, 34 Conn. 1; Baxter v.
Turnpike Co., 22 Vt. 123; Ball v. Town of Winchester, 32 N. H. 443, as ex-
plained and limited by Oilman v. Laconia, 55 N. H. 130; Eastman v. Meredith,
36 N. H. 284; Hill v. City of Boston, 122 Mass. 344; Board of Chosen Free-
holders of Sussex Co. v. Strader, 18 N. J. Law, 108; Cooley v. Chosen Free-
holders of Essex Co., 27 N. J. Law, 415; King v. St. Landry, 12 La. Ann. 858;
Tritz v. Kansas City, 84 Mo. 632; Pettit v. Board, 87 Fed. 768; Board Com'rs
Johnson Co. v. Reinier, 18 Ind. App. 119, 47 N. E. 642; Markey v. Queens
Co., 154 N. Y. 675, 49 N. E. 71, 39 Lawy. Rep. Ann. 46. And see, also, El-
liott, Roads & S. 42.
s Jones, Neg. Mun. Corp. 59. "Every independent corporate body upon
which is put the duty of repairing the highways within its limits should be-
185) QUASI MUNICIPAL CORPORATIONS. 45-3
state with the power to hold property, and exercise ministerial func-
tions thereover, the essential elements of a corporation exist, even
if the investment of authority is not made in express words of in-
corporation. 4 When to these corporate powers is coupled by stat-
ute the duty to keep in repair the highways within its districts,
the obligation and responsibility would seem to be complete; and
the English authorities are quite uniform to this effect. 5 Many of
the English cases further hold that an action to recover for in-
juries sustained by reason of negligence in the maintenance of a
highway can be maintained against a public corporation having
control thereof, although no such action is given by statute, 6 it be-
ing sufficient if the negligence emanates from a corporation capable
of being sued as such. 7 And the more recent English decisions hold
incorporated public trustees liable for negligence in the line of their
imposed duties. 8
Rule in the United States.
Although it may, perhaps, be fairly said that in the United States
the general rule exempts counties from a liability of the kind under
discussion, unless the liability is expressly imposed by statute, 9 yet
the weight of authority is by no means overwhelming, and, it is be-
answerable for any neglect to exercise reasonable care to keep them safe.
And it is ordinarily admitted that every such body is answerable to the public
for a neglect of this kind, and may be indicted therefor." Id. 60, citing Com.
Dig. tit. "Chiniin," 6, 3; Rex v. Inhabitants .of West Riding, 2 W. Bl. 685;
Russell v. Men of Devon, 2 Term R. GG7; Hill v. City of Boston, 122 Mass. 344.
4 See Adams v. Wise-asset Bank, 1 Greenl. (Me.) 361; Finch v. Board, 30
Ohio St. 37; Riddle v. Proprietors of Locks, 7 Mass. 169.
s Russell v. Men of Devon, 2 Term R. 667; Kent v. Board, 10 Q. B. Div. 118,
commenting on Russell v. Men of Devon; Hartnall v. Commissioners, 4 Best
6 S. 361, 33 Law J. Q. B. 39; Borough of Bathurst v. Macpherson, 4 App.
Cas. 256. For early English rule to same effect, see Jones, Neg. Mun. Corp.
16, citing Payne v. Partridge, 1 Show. 231; Steinson v. Heath, 3 Lev. 400;
Churchman v. Tunstal, Hardr. 162; Yielding v. Fay, Cro. Eliz. 569.
e Hartnall v. Commissioners, 4 Best & S. 361, 33 Law J. Q. B. 39.
7 Borough of Bathurst v. Macpherson, 4 App. Cas. 256.
s Mersey Docks v. Gibbs, 11 H. L. Cas. 686; Winch v. Conservators, L. R.
7 C. P. 458; Gilbert v. Trinity House, 17 Q. B. Div. 795; Smith v. Board, 3
C. P. Div. 423.
Hill v. Boston, 122 Mass. 344; Dunn v. Society. 46 Ohio St. 93, 18 N. E.
496; Weightman v. Washington, 1 Black. 39; Greene Co. v. Eubanks. SO Ala.
456 NEGLIGENCE OF MUNICIPAL CORPORATIONS. (Ch. 11
lieved, is constantly becoming less. 10 But when the duty to repair
highways admittedly rests upon a municipal corporation, even if it
be a so-called "quasi municipal corporation," no sound reason ap-
pears why it should not be liable for injuries resulting from a neg-
lect of this duty, and in many carefully considered cases it has been
so held. 11 In many of the states usually cited as sustaining the so-
called "general rule" denying the liability of quasi municipal corpo-
rations the duty of repairing highways does not rest upon the cor-
poration at all, 12 and in some instances, by statute, is placed upon
commissioners or other corporate officials. 13 In such cases it is
evidently impossible that liability, in the absence of an express pro-
vision of statute, should attach to the corporations themselves.
It is therefore evident that, in order to determine the liability
of a quasi municipal corporation in a given case, the local statutes
204; Covington Co. v. Kinney, 45 Ala. 176; Scales v. Ghattahoochee Co., 41
Ga. 225; Arnold v. Henry Co., 81 Ga. 730, 8 S. E. 606; Riddle v. Proprietors
of Locks, 7 Mass. 169; Baxter v. Turnpike Co., 22 Vt. 123; Abbett v. Board,
114 Ind. 61, 16 N. E. 127; Reardon v. St. Louis Co., 36 Mo. 555; King v.
Jury, 12 La. Ann. 858; Sutton v. Board, 41 Miss. 236; Symonds v. Supervisors,
71 111. 355; Board of Chosen Freeholders of Sussex Co. v. Strader, 18 N. J.
Law, 108.
10 Jones, Neg. Mun. Corp. 63, 64. And see Beardsley v. City of Hartford,
50 Conn. 529; City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705.
11 Rigony v. Schuylkill Co., 103 Pa. St. 382; Newlin Tp. v. Davis, 77 Pa.
St. 317; Rapho Tp. v. Moore, 68 Pa. St. 404; Mayor, etc., of Baltimore v.
Marriott, 9 Md. 160; County Com'rs Anne Arundel Co. v. Duckett, 20 Md.
468; Baltimore & Y. Turnpike Co. v. Crowther, 63 Md. 558, 1 Atl. 279. And
in OREGON, under statute. McCalla v. Multnomah Co., 3 Or. 424; Eastman
v. Clackamas Co., 32 Fed. 24. But cf. Sheridan v. Salem, 14 Or. 328, 12 Pac.
925; City of Denver v. Dunsmore, 7 Colo. 328, 3 Pac. 705, In IOWA the lia-
bility exists as to defective bridges. Wilson v. Jefferson Co., 13 Iowa, 181;
McCullom v. Black Hawk Co., 21 Iowa, 409; Chandler v. Fremont Co., 42
Iowa, 58. As to bridges, also, in INDIANA. Vaught v. Board, 101 Ind.*123;
Knox Co. v. Montgomery, 109 Ind. 69, 9 N. E. 590.
12 Greene Co. v. Eubanks, 80 Ala. 204; Sutton v. Board, 41 Miss. 236; Sy-
monds v. Board, 71 111. 355; Abbett v. Board, 114 Ind. 61, 16 N. E. 127;
Reardon v. St. Louis Co., 36 Mo. 555; King v. St Landry, 12 La. Ann. 858;
Scales v. Chattahoochee Co., 41 Ga. 225.
is In People v. Board Town Auditors of Esopus, 74 N. Y. 310, the court
says: "Commissioners of highways have, by the statute, the care and su-
perintendence of highways. * * * On the other hand, the town, in its
185) QUASI MUNICIPAL CORPORATIONS. 457
should be closely examined, and no case should be cited as sup-
porting a given rule until an examination of the statutes influ-
encing the decision has been made.
<x>rporate character, has no control over the highways. It cannot lay out a
highway, or discontinue one. It is not liable for failure to keep highways in
repair." And see Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. E. 268.
The liability hi New York is now Imposed on the municipalities by statute.
Laws 1881, c. 700.
TABLE OF CASES CITED.
A
Page
Abbett v. Board, 114 Ind. 61, 1C N. E. 127 456
Abbitt v. Railroad Co. (Ind. Sup.) 40 N. E. 40; 150 Ind. 498, 50 N. E.
729 55, 56
Abbot v. McCadden, 81 Wis. 563, 51 N. W. 1079 408
Abbott v. Bradstreet, 55 Me. 530 217, 277
Abeel v. Swann, 21 Misc. Rep. 677, 47 N. Y. Supp. 1088 375
Abel v. Canal Co., 103 N. Y. 581, 9 N. E. 325 102
128 N. Y. 662, 28 N. E. 663 102
Abrams v. Railway Co., 87 Wis. 485, 58 N. W. 780 239
Adarns v. Iron Cliffs Co., 78 Mich. 271, 288, 44 N. W. 270, 276 133, 136
v. Spangler, 17 Fed. 133 384
v. Steamboat Co., 151 N. Y. 163, 45 N. E. 369 270
v. Town of Chicopee, 147 Mass. 440, 18 N. E. 231 434
v. Wiscasset Bank, 1 Greenl. (Me.) 361 455
Adams Exp. Co. v. Darnell, 31 Ind. 20 .218, 283
v. Harris, 120 Ind. 73, 21 N. E. 340 249
v. Haynes, 42 111. 89 244, 258
v. Holmes (Pa. Sup.) 9 Atl. 166 249
v. Jackson, 92 Tenn. 326, 21 S. W. 666 23
v. Nock, 2 Duv. (Ky.) 562 257
v. Reagan, 29 Ind. 21 251
v. Stettaners, 61 111. 184 244, 249, 258
v. Wilson, 81 111. 339 293, 295
Agnew v. The Contra Costa, 27 Cal. 425 262
v. Corunna, 55 Mich. 428, 21 N. W. 873 18
Agricultural & Mechanical Ass'n v. State, 71 Md. 86, 18 Atl. 37 410
Ahern v. Steele, 48 Hun, 517, 1 N. Y. Supp. 259 409, 411
115 N. Y. 203, 22 N. E. 193 312
Aicher v. City of Denver, 10 Colo. App. 413, 52 Pac. 86 429
Aiken v. Railway Co., 68 Iowa, 363, 27 N. W. 281 293
Airey v. Merrill, 2 Curt. 8, Fed. Cas. No. 115 253
Akers v. Railroad Co., 58 Minn. 540, 60 N. W. 669 50, 307
Alabama G. S. R. Co. v. Anderson, 109 Ala. 299, 19 South. 516 32, 338
v. Burgess, 116 Ala. 509, 22 South. 913 394, 405
v. Coggins, 32 C. C. A. 1, 88 Fed. 455 80, 208
v. Davis (Ala.) 24 South. 862 116, 117, 145
v. Dobbs, 101 Ala. 219, 12 South. 770 63
v. Fulghum, 94 Ga. 571, 19 S. E. 981 103
v. Little, 71 Ala. 611 249
BAR.NEG. (459)
460 CASES CITED.
Page
Alabama G. S. R. Co. v. McAlpine, 75 Ala. 113 344
v. Sellers, 93 Ala. 9, 9 South. 375 180
v. Yarbrough, 83 Ala. 238, 3 South. 447 187
Alabama Mineral R. Co. v. Marcus, 115 Ala. 389, 22 South. 135 118
Alabama & T. R. Co. v. Kidd, 35 Ala. 209 .283, 288
Alabama & V. R. Co. v. Davis, 69 Miss- 444, 13 South. G93 59
v. Drummond, 73 Miss. 813, 20 South. 7 193, 194
v. Purnell, 69 Miss. 652, 13 South. 472 210
v. Searles, 71 Miss. 744, 16 South. 255 223
Alair v. Railroad Co., 53 Minn. 160, 54 N. W. 1072 248
Alaska Treadwell Gold-Min. Co. v. Whelan, 12 C. C. A. 225, 64 Fed. 462. . 37
Albertson v. Railroad Co., 48 Iowa, 292 62
Albion Lumber Co. v. De Nobra, 19 C. C. A. 168, 72 Fed. 739 176
Albrittin v. Mayor, etc., 60 Ala. 486 432
Alcorn v. City of Philadelphia, 44 Pa. St. 348. .441, 448
Alden v. City of Minneapolis, 24 Minn. 254 438
Alder v. Buckley, 1 Swan (Tenn.) 69 378
Aldrich v. Tripp, 11 R. I. 141 449
Alexander v. City of Milwaukee, 16 Wis. 247 428
v. City of Vicksburg, 68 Miss. 564, 10 South. 62 443
v. Greene, 7 Hill, 533 245
Alger v. City of Lowell, 3 Allen (Mass.) 402, 406 77
Aliiie, The, 25 Fed. 562 248
All v. Barnwell Co., 29 N. C. 161, 7 S. E. 58 399
Allan v. Steamship Co., 132 N. Y. 91, 30 N. E. 482 370
Allegheny Co. v. Gibson's Sons & Co., 90 Pa. St. 297 452
Allen v. City of Boston, 159 Mass. 324, 34 N. E. 519 429
v. Kirk, 81 Iowa, 658, 47 N. W. 906 383
v. Railroad Co., 106 Iowa, 602, 76 N. W. 848 336
L. R. 6 Q. B. 65 173
79 Me. 327, 9 Atl. 895 298
Allender v. Railroad Co., 37 Iowa, 264 178
Allerton v. Railroad Co., 146 Mass. 241, 15 N. E. 621 179
Ailing v. Railroad Co., 126 Mass. 121 271-273
Allison v. Railroad Co., 42 Iowa, 274 206
Allyn v. Railroad Co., 105 Mass. 77 82
Almond v. Nugent, 34 Iowa, 300 378
Alpern v. Churchill, 53 Mich. 607, 19 N. W. 549 359
Alston v. Herring, 11 Exch. 822 223
Althorf v. Wolfe, 22 N. Y. 355 154, 156, 414
Alton Building & Fire-Brick Co. v. Hudson, 176 111. 270, 52 N. E. 256 117
America, The, 6 Ben. 122, Fed. Cas. No. 282 84
8 Ben. 491, Fed. Cas. No. 283 218
American Contract Co. v. Cross, 8 Bush (Ky.) 472 270
American Exp. Co. v. Bank, 69 Pa. St. 394 294
v. Greenhalgh, 80 111. 68 297
v. Haire, 21 Ind. 4 387
v. Hockett, 30 Ind. 250 215
v. Lesem, 39 111. 313 284.
CASES CITED. 461
Page
American Exp. Co. v. Perkins, 42 111. 458 231
v. Sands, 55 Pa. St. 140 249-
r. Smith, 33 Ohio St. 511, 31 Am. Rep. 561 222, 234
American Merchants' Union Exp. Co. v. Scliier, 55 111. 140 258, 282
v. Wolf, 79 111. 430 2S2, 2S&
American Roofing Co. v. Packet Co., 5 Ohio X. P. 146 290
American S. S. Co. v. Bryan, 83 Pa. St. 446 271
American Strawboard Co. v. Railroad Co., 75 111. App. 420 354:
American Telephone & Telegraph Co. v. Bower, 20 Iiid. App. 32, 49 N. E.
182 14T
American Union Exp. Co. v. Robinson, 72 Pa. St. 274 283
Ames v. Jordan, 71 Me. 540 157
Amies v. Stevens, 1 Strange, 128 223
Anchor Line v. Dater, 68 111. 369 25&
Anderson v. Buckton, 1 Strange, 192 366.
v. Hayes, 101 Wis. 538, 77 N. W. 891 314, 316
v. Johett, 14 La. Ann. 614 388-
v. Lumber Co., 67 Minn. 79, 69 N. W. 630 48
v. Mills Co., 32 C. C. A. 143, 88 Fed. 944 107
42 Minn. 424, 44 N. W. 315 103
v. Mining Co., 16 Utah, 28, 50 Pac. 815 , 150
v. Morrison, 22 Minn. 274 87, 119-
V. Railway Co., 62 Fed. 46 195
93 Iowa, 561, 61 X. W. 1058 347
39 Minn. 523, 41 N. W. 104 141
35 Neb. 95, 52 N. W. 840 405, 412
19 Wash. 340, 53 Pac. 345 49, 307
v. Steamboat Co., 64 N. C. 399 354
Anderson & Nelson Distilling Co. v. Hair (Ky.) 44 S. W. 658 50, 304
Andrews v. Railroad Co., 34 Conn. 57 421
86 Iowa, 677, 53 N. W. 399 205
Angle v. Railroad Co., 9 Iowa, 487 293, 295
Anglin v. Railway Co., 9 C. C. A. 130, 60 Fed. 553 109
Annapolis & E. R. Co. v. Gantt, 39 Md. 115 352
Annas v. Railroad Co., 67 Wis. 46, 30 N. W. 282 413
Anne Arundel County Com'rs v. Duckett, 20 Md. 469 426
Anniston & A. R. Co. v. Ledbetter, 92 Ala. 326, 9 South. 73 286
Anthony v. Railroad Co., 27 Fed. 724 203
Applebee v. Percy, L. R. 9 C. P. 647 365
Appleby v. Railway Co., 54 Minn. 169, 55 N. W. 1117 198
Apsey v. Railroad Co., 83 Mich. 440, 47 N. W. 513 40
Arcade File Works v. Juteau, 15 Ind. App. 385, 40 N. E. 818, 44 N. E. 326. . 106
Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470 54, 57, 58
Ardesco Oil Co. v. Gilson, 63 Pa. St. 146, 150 140, 162:
Arkansas Midland Ry. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550. .187, 204, 206
Arkerson v. Dennison, 117 Mass. 407 117
Armstrong v. Bell (Ky.) 42 S. W. 1131 383
v. City of Brunswick, 79 Mo. 319 449, 45O
v. Express Co., 159 Pa. St 640, 28 Atl. 448 239, 266-
4G2 CASES CITED.
Page
Arnold v. Halenbake, 5 Wend. (.N. Y.) 33 216
v. Henry Co., 81 Ga. 730, 8 S. E. 606 456
v. Railroad Co., 83 111. 273 187, 212, 244, 252
Arrowsuiith v. Kailroad Co., 57 Fed. 165 Ib8, 189
Am v. Kailroad Co., 34 Iowa, 153 332
Ashland Coal, Iron & Railway Co. v. Wallace's Adiu'r, 42 S. W. 744 87, 147
Ashley v. City of Port Huron, 35 Mich. 296 428
Ashman v. Railway Co., 90 Mich. 567, 51 N. W. 645 137
Ashinore v. Transportation Co., 28 N. J. Law, 180 239, 253
Atchison, T. & S. F. R. Co. v. Brown, 26 Kan. 443 410, 411
v. Cross, 58 Kan. 424, 49 Pac. 599 336
v. Cupello, 61 111. App. 432 347
v. Dwelle, 44 Kan. 394, 24 Pac. 500 184
v. Gants, 38 Kan. 608, 17 Pac. 54 198
v. Grant, 6 Tex. Civ. App. 674, 26 S. W. 286 291
v. Henry, 57 Kan. 154, 45 Pac. 576 80
v. Holland (Kan. Sup.) 56 Pac. 6 330, 331
v. Huitt, 1 Kan. App. 788, 41 Pac. 1015 355, 357
v. McKee, 37 Kan. 592, 15 Pac. 484 147
v. Midgett, 1 Kan. App. 138, 40 Pac. 995 121
v. Moore, 29 Kan. 632, 644 132
v. Morgan, 31 Kan. 77, 1 Pac. 298 328
v. Mulligan, 14 C. C. A. 547, 67 Fed. 569 145
v. Myers, 11 C. C. A. 439, 63 Fed. 793 96, 145
v. Roach, 35 Kan. 740, 12 Pac. 93 181
v. Roemer, 59 111. App. 93 67
v. Rowan, 55 Kan. 270, 39 Pac. 1010 110
v. Smith, 28 Kan. 541 70
v. Wagner, 33 Kan. 660, 7 Pac. 204 91
v. Weber, 33 Kan. 543, 6 Pac. 877 175, 415
v. Wilson, 1 C. C. A. 25, 48 Fed. 57 408
Atchison & N. R. Co. v. Washburn, 5 Neb. 117, 121 239, 269
Atkinson v. Heer, 44 Ark. 174 382
v. Transportation Co., 60 Wis. 141, 18 N. W. 764 11, 16, 19, 26, 352
Atlanta Consol. St. Ry. Co. v. Bates, 103 Ga. 333, 30 S. E. 41 179
Atlanta Cotton Factory Co. v. Speer, 69 Ga. 137 146
Atlanta & C. Air-Line Ry. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550 71, 325
Atlanta & R. A. L. R. Co. v. Ayers, 53 Ga. 12 79, 80
Atlanta & W. P. R. Co. v. Grate Co., 81 Ga. 602, 9 S. E. 600 293
Atlantic & D. Ry. Co. v. Rieger, 95 Va. 418, 28 S. E. 590 328
Atlas Engine Works v. Randall, 100 Ind. 293 113, 119, 146
Attorney General v. Brown, 1 Wis. 522 380
Atwater v. Railroad Co., 48 N. J. Law, 5o, 2 Atl. 803 200, 201
Atwood v. Railway Co., 91 Me. 399, 40 Atl. 67 37
Auerbach v. Railroad Co., 89 N. Y. 281 200
Augusta Factory v. Barnes, 72 Ga. 217 146
Augusta & S. R. Co. v. McElmurry, 24 Ga. 75 46, 79
Aurora Branch R. Co. v. Grimes, 13 111. 585 310
Austin v. Railroad Co., 8 Best & S. 327, L. R. 2 Q. B. 442 191
CASES CITED. 463
Page
Austin v. Railroad Co., 172 Mass. 484, 52 N. E. 527 93
v. Steamboat Co., 43 X. Y. 75 24, 51
Aycrigg's Ex'rs v. Railroad Co., 30 N. J. Law, 460. . T 173
Ayers v. Railroad Co., 158 N. Y. 254, 53 N. E. 22 208
Ayers' Adm'x v. Railroad Co., 84 Va. 679, 5 S. E. 582 127, 150
Ayres v. Railroad Co., 71 Wis. 372, 37 N. W. 432 262
v. Railroad Corp., 14 Blatchf. 9, Fed. Gas. No. 689 253, 257
B
Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132 163
Babbitt v. Bumpus, 73 Mich. 331, 41 N. W. 417 372
Babcock v. Herbert, 3 Ala, 392 216
Bachelder v. Heagan, 18 Me. 32 349, 350
Backer v. Com'rs, 66 111. App. 507 442
Backhouse v. Sneed, 5 N. C. 173 226
Bacon v. City of Boston, 154 Mass. 100, 28 N. E. 9. 426
v. Steamboat Co., 90 Me. 46, 37 Atl. 328 209
Bahel v. Manning, 112 Mich. 24, 70 N. W. 327, 36 Lawy. Rep. Ann. 523. . 368
Baikie v. Chandless, 3 Camp. 17 373
Bailey v. Gray, 53 S. C. 503, 31 S. E. 354 301
v. Mayor, etc., 3 Hill (N. Y.) 531 443
v. Railroad Co. (Ky.) 44 S. W. 105 .' 207
Baird v. Morford, 29 Iowa, 531 377
v. Pettit, 70 Pa. St. 477^83 171
Bajus v. Railroad Co., 103 N. Y. 312, 8 N. E. 529 91
Baker v. Bailey, 16 Barb. (N. Y.) 54 393
v. Bolton, 1 Camp. 493 391
v. Brinson, 9 Rich. Law (S. C.) 201 220
v. City of Portland, 58 Me. 199 46, 76, 77
v. Holtpzaffell, 4 Taunt. 45 315
v. Lee, 49 La. Ann. 874, 21 South. 588 389
v. Railroad Co., 68 Ga. 699 146, 336
118 X. Y. 533, 23 N. E. 885 181
95 Pa. St. 211 117
48 S. W. (Mo.) 838 31, 85, 331, 332
v. Tibbetts, 162 Mass. 468, 39 N. E. 350 304
Baldwin v. Casella, L. R. 7 Exch. 325 365
v. Collins, 9 Rob. (La.) 468 256
V. Express Co., 23 111. 197 215, 282
v. Railroad Co., 50 Iowa, 680 96
v. Weed, 17 Wend. (N. Y.) 224 383
Bales v. Wlngfield, 4 Q. B. 580 381
Ball v. Railway Co., 83 Mo. 574 239
v. Town of Winchester, 32 N. H. 443 454
v. Town of Woodbine, 61 Iowa, 83, 15 N. W. 846 449. 450
Ballentine v. Railroad Co., 40 Mo. 491 236
Ballou v. Railway Co., 54 Wis. 257, 11 N. W. 559 96
464 CASES CITED.
Pag&
Baltimore City Pass. Ry. Co. v. Cooney, 87 Md. 261, 39 Atl. 859 38, 52
v. Kemp, 61 Md. 619, 18 Am. & Eng. R. Cas. 220 14
v. McDonnell, 43 Md. 534 67, 71
Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338 148-
Baltimore P. & C. R. Co. v. McDonald, 68 Ind. 316 183, 197
Baltimore Steam-Packet Co. v. Smith, 23 Md. 402 269-
Baltimore & O. R. Co. v. Adams, 10 App. D. C. 97 59
v. Anderson, 29 C. C. A. 235, 87 Fed. 413 339
v. Barger, 80 Md. 23, 30 Atl. 560 172
r. Baugh, 149 U. S. 368, 13 Sup. Ct 914 126, 127, 132, 142, 143, 145
v. Boteler, 38 Md. 568 77
v. Camp, 13 C. C. A. 233, 65 Fed. 952 99, 145
v. Campbell, 36 Ohio St 647 258, 293
v. Carr, 71 Md. 135, 17 Atl. 1052 192
v. Colvin, 118 Pa. St. 230, 12 Atl. 337 100
v. Few's Ex'rs, 94 Va. 82, 26 S. E. 406 339
v. Fitzpatrick, P.5 Md. 32 335
V. Griffith, 159 U. S. 603, 16 Sup. Ct. 105 330
v. Hellenthal, 88 Fed. 116, 31 C. C. A. 414 52
v. Kean, 65 Md. 394, 5 Atl. 325 51
v. McLaughlin, 19 C. C. A. 551, 73 Fed. 519 212
v. Mulligan, 45 Md. 486 51
v. Noell's Adm'r, 32 Grat. 394 403, 411
v. Norris, 17 Ind. App. 189. 49 N. E. 554 184
v. Schumacher, 29 Md. 168, 176 294
v. State, 24 Md. 271 407
30 Md. 47 62, 68, 395
33 Md. 542-554 51, 171, 332
41 Md. 268 407
60 Md. 449 208, 412
63 Md. 135 412
79 Md. 335, 29 Atl. 518 59
81 Md. 371, 32 Atl. 201 76
v. Sulphur Springs Independent School Dist, 96 Pa. St. 65 23, 221
v. Sutherland, 12 Ohio Cir. Ct R. 309 134
v. Talmage, lo Ind. App. 203, 43 N. E. 1019 338
v. Weedon, 24 C. C. A. 249, 78 Fed. 584 388
v. Whitacre, 35 Ohio St 627 44, 84
v. Whittaker, 24 Ohio St 642 88
v. Whittington's Adm'r, 30 Grat. (Va.) 805 103
T. Wightman's Adm'r, 29 Grat. (Va.) 431 403, 407, 408, 414,
Baltimore & O. S. W. Ry. Co. v. Alsop, 71 111. App. 54 326
v. Conoyer, 149 Ind. 524, 48 N. E. 352 328, 332
v. Crawford, 65 111. App. 113 252
v. Faith, 175 111. 58, 51 N. E. 807 32
v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106 249, 250
v. Then, 159 111. 535, 42 N. E. 971 68
v. Welsh, 17 Ind. App. 505, 47 N. E. 182 109
Baltimore & O. & C. R. Co. v. Rowan, 104 Ind. 88, 3 N. E. 627 89, 110
CASES CITED. 465
Page
Baltimore & P. R. Co. v. Jones, 93 U. S. 439, 442 2, 35
v. Mac-key, 157 U. S. 72, 15 Sup. Ct. 491 92, 9(j
v. Webster, 6 App. D. C. 182 68, 32<5
Baltimore & R. Turnpike Road v. State, 71 Md. 573, 18 Atl. 884 407
Baltimore & S. R. Co. v. Woodruff, 4 Md. 242 3u4
Baltimore & Y. Turnpike Co. v. Crowtlier, 63 Md. 558, 1 Atl. 279 456
Bamberger v. Railway Co., 95 Tenn. 18, 31 S. W. 163 62
Bancroft v. Railroad Co. (N. H.) 30 Atl. 409 108
v. Railroad Corp., 11 Allen (Mass.) 34 398
Bank of Kentucky v. Express Co., 93 U. S. 174 215, 286
Bank of New South Wales v. Owston, 4 App. Gas. 270 174
Banks v. City of Effingham, 63 111. App. 221 110
Banning v. Railroad Co., 89 Iowa, 74, 56 N. W. 277 37
Bansemer v. Railway Co., 25 Ind. 434 282, 288
Barabasz v. Kabat, 86 Md. 23, 37 Atl. 720 158
Barber v. Town of Essex, 27 Vt. 62 2
Barber Asphalt Pav. Co. v. Odasz, 29 C. C. A. 631, 85 Fed. 754 93
Barbo v. Bassett, 35 Minn. 485, 29 N. W. 198 117
Barbour v. City of Ellsworth, 67 Me. 294 444
Barce v. City of Shenandoah, 106 Iowa, 426, 76 N. W. 747 434
Barclay v. City of Boston, 167 Mass. 596, 46 N. E. 113 437
v. Clyde, 2 E. D. Smith (N. Y.t 95 28.',
Barden v. Felch, 109 Mass. 154 174
Barker v. Coflin, 31 Barb. (X. Y.) 556 198, 199
v. Railroad Co., 151 N. Y. 237, 45 N. E. 550 201
Barkman v. Railroad Co., 89 Fed. 453 182
Barley v. Railroad Co., 4 Biss. 430, Fed. Cas. No. 997 405
Barman v. Spencer (Ind. Sup.) 49 N. E. 9 50, 304, 316, 317
Barnard v. Leigh, 1 Starkie, 43 382
v. Poor, 21 Pick. (Mass.) 378 349
v. Ward, 9 Mass. 269 381
Barnes v. District of Columbia, 91 U. S. 541 425
v. Railroad Co., 47 La. Ann. 1218, 17 South. 782 65, 66
Barnes' Adm'r v. Ward, 9 C. B. 392 309
Barney v. City of Lowell, 98 Mass. 570 443
v. Prentiss, 4 Har. & J. (Md.) 317 256
v. Railroad Co., 126 Mo. 372, 28 S. W. 1069 40
v. Steamboat Co., 67 N. Y. 301 184, 192
Barnhart v. Railway Co., 97 Iowa, 654, 66 N. W. 902 342
Barnum v. Railway Co., 30 Minn. 461, 16 N. W. 364 403
v. Vandusen, 16 Conn. 200 362, 366
Barrett v. Dolan, 130 Mass. 366 400
v. Railroad Co.. 81 Cal. 296, 22 Pac. 859 201
45 N. Y. 628 25, 54, 57
Ban-on v. City of Detroit, 94 Mich. 601, 54 N. W. 273 440
v. Eldredge, 100 Mass. 455 279, 280, 288
Barrott v. Car Co., 51 Fed. 796 217
Barry v. Railroad Co., 92 N. Y. 289 326
Barter v. Wheeler, 49 N. H. 9 295
BAR.NEG.-30
466 CASES CITED.
Page
Earth v. Railway Co., 142 Mo. 535. 44 S. W. 778 405
Bartholomew v. Railroad Co., 53 111. 227 289
Bartlett v. Gaslight Co., 117 Mass. 533 20
v. Railway Co., 94 Ind. 281 235, 238
v. Town of Clarksburg (W. Va.) 31 S. E. 918. 442
Bartnik v. Railroad Co., 36 App. Div. 246,' 55 N. Y. Supp. 2G6 202, 204
Bartoushill Coal Co. v. Reid, 3 Macq. H. L. Gas. 266 130
Bass v. Railroad Co., 28 111. 9 354, 357
. 36 Wis. 450 185, 195, 196
39 Wis. 636 195
42 Wis. 654 195
Bassett v. Fish, 75 N. Y. 303 44
Bateman v. Railway Co. (Wash.) 54 Pac. 996 150
Bates v. City of Houston, 14 Tex. Civ. App. 287, 37 S. W. 383 443
v. Railroad Co., 84 Hun, 287, 32 N. Y. Supp. 337 337
v. Stanton, 1 Duer (N. Y.) 79 297
Batson v. Donovan, 4 Barn. & Aid. 21, 28. 231, 259, 260
Batterson v. Railway Co., 53 Mich. 125, 127, 18 N. W. 584 115, 116
Batton v. Railroad Co., 77 Ala. 591 207
Bauer v. Lyons, 23 App. Div. 205, 48 N. Y. Supp. 729 363
Baulec v. Railroad Co., 59 N. Y. 356 100
Bauruan v. City of Detroit, 58 Mich. 444, 25 N. W. 391 450
Baumbach v. Railway Co., 4 Tex. Civ. App. 650, 23 S. W. 693 288
Baxter v. Railroad Co., 41 N. Y. 502 332
v. Roberts, 44 Gal. 187 113
v. Turnpike Co., 22 Vt. 123 454, 456
Bayer v. Railroad Co., 68 111. App. 219 162
Bayley v. Railroad Co., L. R. 8 C. P. 148*. 1G8
Baylis v. Cycle Co. (City Ct. Brook.) 14 N. Y. Supp. 933 172
Bay Shore R. Co. v. Harris, 67 Ala. 6 66
Bealafield v. Borough of Verona, 188 Pa. St 627, 41 Atl. 651 429
Beall v. Athens Tp., 81 Mich. 536, 45 N. W. 1014 18
Beard v. Railroad Co., 79 Iowa, 518, 44 N. W. 800 222, 227, 233, 234
48 Vt. 101 208
Beardsley v. City of Hartford, 50 Conn. 529 456
v. Smith, 16 Conn. 375 454
Beattyville & C. .G. R. Co. v. Maloney (Ky.) 49 S. W. 545 343
Beauchamp v. Mining Co., 50 Mich. 163, 15 N. W. 65 309
Becher v. Railroad Co., L. R. 5 Q. B. 241 273, 274
Beck v. Evans, 16 East, 244 223, 238
v. Hood, 185 Pa. St. 32, 39 Atl. 842 32
v. Mfg. Co., 82 Iowa, 2SG, 48 N. W. 81 394
Becke v. Railway Co., 102 Mo. 544, 13 S. W. 1053 399
Beckwith v. Frisbie, 32 Vt. 559 23!5
v. Railroad Co., 54 Hun, 446, 7 N. Y. Supp. 719, 721 333
Bedell v. Railroad Co., 44 N. Y. 367 354
Bedford v. Railroad Co., 46 Mo. 456 357
Beebe v. Ayres, 28 Barb. (N. Y.) 275 200
Beehler v. Daniels, 18 R. 1.563, 29 Atl. 6 50
CASES CITED. 467
Page
Beehler v. Daniels, 19 R. I. 49, 31 Atl. 582 48, 306, 3U7
Beems v. Railway Co., 67 Iowa, 435, 25 N. W. 693 413.
Beers v. Railroad Co., 19 Conn. 566 86
Beesley v. Wheeler, 103 Mich. 196, 61 N. W. 658 136
Beeson v. Mining Co., 57 Cal. 20 14G
Beisiegel v. Railroad Co., 34 N. Y. 622 334, 340
Belcher v. Sheehan, 171 Mass. 513, 51 N. E. 19 382
Belden v. Car Co. (Tex. Civ. App.) 43 S. W. 22 278
Belding v. Railroad Co., 3 S. D. 369, 53 N. W. 750 397
Belfast v. Boon, 41 Ala. 50 229, 230
Belfast & B. Ry. Co. v. Keys, 9 H. L. Gas. 556 271, 272
Belger v. Dinsmore, 51 Barb. (N. Y.) 69 257
51 N. Y. 166 257, 258
Bell v. Railroad Co., 73 Ga. 520 418-
29 Hun (N. Y.) 560 86
v. Reed, 4 Bin. (Pa.) 127 222, 22S
iBellefontaine Ry. Co. v. Hunter, 33 Ind. 335 82, 331
v. Snyder, 24 Ohio St 070 62
Belief ontaine & I. R. Co. v. Schruyhart, 10 Ohio St. 116 344
v. Snyd-er, 18 Ohio St. 399 62
Bellemire v. Bank, 4 Whart. (Pa.) 105 387
Bellinger v. Railroad Co., 23 N. Y. 42, 47 317, 318, 442
Bellows v. Sackett, 15 Barb. (N. Y.) 96 303
Beuiis v. Railroad Co., 42 Vt. 375 342, 344
Ben Adams, The, 2 B*n. 445, Fed. Gas. No. 1,289 285
Benedict v. Schaettle, 12 Ohio St. 515 298
'fienett v. Steamboat Co., 6 C. B. 775 216, 292
Bengtson v. Railway Co., 47 Minn. '486, 50 N. W. 531 115
Benjamin v. Eldridge, 50 Cal. 612 420
v. Railway Co., 160 Mass. 3, 35 N. E. 95 75
133 Mo. 274, 34 S. W. 590 18
v. Shea, 83 Iowa, 392, 49 N. W. 989 388
Bennett v. Byram, 38 Miss. 17 235, 236
v. Button, 10 N. Y. 481, 487 254
T. Express Co., 83 Me. 236, 22 Atl. 159 233
12 Or. 49, 6 Pac. 160 283
V. Railroad Co., 102 U. S. 577 304
57 Conn. 422, 18 Atl. 668 209
133 N. Y. 563. 30 N. E. 1149 59
2 X. D. 112, 49 N. W. 408 1015
v. Transportation Co., 36 N. J. Law, 225 57
Benson v. Suarez, 43 Barb. (N. Y.) 408 312
Benton v. Railroad Co., 55 Iowa, 496, 8 N. W. 330 412
Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 449 27, 91, 93, 94, 96, 123
Berea Stone Co. v. Kraft, 31 Ohio St. 287 .134
Berg v. Parsons, 84 Hun, 60, 31 N. Y. Supp. 1091 162
v. Railroad Co., 30 Kan. 561, 2 Pac. 639 182, 291
70 Minn. 272, 73 X. W. 648 19. 43
v. Steamship Co., 5 Daly (N. Y.) 394 292, 293
468 CASES CITED.
Page
Bergen County Traction Co. v. Heitman's Adm'r (N. J. Err. & App.) 40
Atl. 651 64
Bergheim v. Railway Co., 3 C. P. Div. 221 279
Berlin Mills Co. v. Croteau, 32 C. C. A. 126, 88 Fed. 860 49, 307
Leruhard v. Railway Co., 68 Hun, 369, 22 X. Y. Supp. 821 323
Berniua, The, 13 App. Gas. 1; 12 Prob. Div. 58 57
Bernstein v. Railroad Co., 72 Hun, 46, 25 N. Y. Supp. 669 181
Berrigan v. Railroad Co., 131 N. Y. 582, 30 N. E. 57 102
Berry v. Cooper, 28 Ga. 543 220, 238
v. Railroad Co., 70 Fed. 193 85
72 Ga. 137 394
122 N. C. 100% 30 S. E. 14 280
44 W. Va. 538, 30 S. E. 143 252
v. Town of Wauwatosa, 87 Wis. 401, 58 N. W. 751 426
Bertelson v. Railway Co., 5 Dak. 313, 40 N. W. 531 394
Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S. E. 869. . .. 32, 89, 92
Berwald v. Ray, 8 Pa. Super. Ct 365, 43 Wkly. Notes Cas. 217 383
Besenecker v. Sale, 8 Mo. App. 211 405
Besozzi v. Harris, 1 Fost. & F. 92 361
Bessex v. Railroad Co., 45 Wis. 477 91, 150
Best v. Town of Kinston, 106 N. C. 205, 10 S. E. 997 420
Betts v. Trust Co., 21 Wis. 80 231
Beuhring's Adm'r v. Railway Co., 37 W. Va. 502, 16 S. E. 435 150
Biddiscomb v. Cameron, 35 App. Div. 561, 55 N. Y. Supp. 127 92
Biddle v. Bond, 6 Best. & S. 225 297
Bieling v. City of Brooklyn, 120 N. Y. 98, 24 N. E. 389 436
Bierbach v. Rubber Co., 14 Fed. 826, 15 Fed. 490 87
Bierbauer v. Railroad Co., 15 Hun (N. Y.) 559; 77 N. Y. 588 411
Big Creek Stone Co. v. Wolf, 138 Ind. 496, 38 N. E. 52 93
Bigelow v. Inhabitants, 14 Gray (Mass.) 541 440
Biggs v. Barb-Wire Co. (Kan. Sup.) 56 Pac. 4 49, 67, 306
Biilman v. Railroad Co., 76 Ind. 166 324, 352
Bingham v. Lamping, 26 Pa. St. 340 233
Binny v. Carney (Sup.) 46 N. Y. Supp. 307 309
Bird v. Brown, 4 Exch. 786 298
v. Cromwell, 1 Mo. 81 222, 223
v. Holbrook, 4 Bing. 628 308
v. Railroad Co., 99 Tenn. 719, 42 S. W. 451 239
Birge v. Gardner, 19 Conn. 506, 507 35, 68, 71, 82
Birkett v. Ice Co., 110 N. Y. 504, 18 N. E. 108 410
Birmingham v. Railroad Co. (Sup.) 14 N. Y. Supp. 13 206
Bisaillon v. Blood, 64 N. H. 565, 15 Atl. 147 71
Bischoff v. Railway Co., 121 Mo. 216, 25 S. W. 908 202
Bissell v. Railroad Co., 22 N. Y. 258 182
25 X. Y. 442 245. 252
Bizzell v. Booker, 16 Ark. 308 3, 367
Black v. Baxendale, 1 Exch. 410 235
v. Maitland, 11 App. Div. 188, 42 N. Y. Supp. 653 312
CASES CITED. 469
Paga
Black v. Railroad Co., Ill 111. 351 251
38 Iowa, 515 323
30 Neb. 197, 46 N. W. 428 23, 221, 225, 227
115 N. C. 667, 30 S. E. 713, 909 355
v. Transportation Co., 55 Wis. 319, 13 N. W. 244 239, 247, 249, 253
Blackburn v. Pacific Co. (Or.) 55 Pac. 225 332
Blackman v. Electric Co., 102 Ga. 64, 29 S. E. 120 146
Blackstock v. Railroad Co., 20 N. Y. 48 235
Blackstone v. Foundry Co., 170 Mass. 321, 49 N. E. 635 50, 306
Blagrave v. Waterworks Co., 1 Hurl. & N. 369 4
Blaine v. Railroad Co., 9 W. Va. 252 2
Blair v. Flack, 62 Hun, 509, 17 N. Y. Supp. 64 382
v. Railroad Co., 60 Mich. 124, 26 N. W. 855 156
66 N. Y. 313 188, 189
Blaisdell v. City of Portland, 39 Me. 113 435
Blake v. Dick, 15 Mont. 236, 38 Pac. 1072 317
v. Railroad Co., 70 Me. 60 97
18 Q. B. 93, 21 Law J. Q. B. 233 392
Blanchard v. Isaaca, 3 Barb. (N. Y.) 388 280
Bland v. Railroad Co., 55 Cal. 570 184
Blankenship v. Railroad Co., 94 Va. 449, 27 S. E. 20 51
Blatt v. McBarron, 161 Mass. 21, 36 N. E. 468 49
Blazenic v. Coal Co., 102 Iowa, 706, 72 N. W. 292 147
Blessington v. City of Boston, 153 Mass. 409, 26 N. E. 1113 163
Bliss v. South Hadley, 145 Mass. 91, 13 N. E. 352 71
Bliven v. Railroad Co., 36 N. Y. 403 232
Blodgett v. City of Boston, 8 Allen (Mass.) 237 436
Blomquist v. Railroad Co., 60 Minn. 426, 62 N. W. 818 133, 141
Blondin v. Quarry Co., 11 Ind. App. 395, 37 N. E. 812; 39 N. E. 200 93
Bloomingdale v. Railroad Co., 6 Lea (Tenn.) 616 298
Blossom v. Dodd, 43 N. Y. 264, 269 256
v. Griffin, 13 N. Y. 569 279
Blower v. Railway Co., L. R. 7 C. P. 655 223, 265
Bloyd v. Railway Co., 58 Ark. 66, 22 S. E. 1089 146
Blue v. Railroad Co., 117 N. C. 644, 23 S. E. 275 355
Blum v. Car Co., 1 Flip. 500, Fed. Cas. No. 1,574 217
Blumantle v. Railroad Co., 127 Mass. 322 273
Blumenthal v. Brainerd, 38 Vt. 402 216, 218, 239, 287
v. Railroad Co., 79 Me. 550, 11 Atl. 605 273
Blunt v. Aikin, 15 Wend. (N. Y.) 522 311
Blyhl v. Village of Waterville, 57 Minn, 115, 58 N. W. 817 430
Blyth v. Waterworks Co., 11 Law J. Exch. 781 9, 10, 23, 24
25 Law J. Exch. 213 2
v. Yopham, Cro. Jac. 158, 1 Rolle, Abr. 88 310
Ely the v. Railway Co., 15 Colo. 333, 25 Pac. 702 23, 221, 225, 227
Board of Chosen Freeholders of Sussex Co. v. Strader, 18 N. J. Law,
108 454. 456
Board of Com'rs of Boone County v. Mutchler, 137 Ind. 140, 36 N. E. 534 19, 56
470 CASES CITED.
Page
Board of Com'rs of Howard Co. v. Legg, 93 Ind. 523 408
110 Ind. 479, 11 X. E. 612 407
Board of Com'rs of Johnson County v. Reinier, 18 Ind. App. 119, 47 N. E.
642 454
Board of Internal Improvement of Shelby Co. v. Scearce, 2 Duv. (Ky.) 576.. 392
Boatwrlght v. Railroad Co., 25 S. C. 128 149
Boehl v. Railway Co., 44 Minn. 191, 46 N. W. 333 239
Boehm v. Combe, 2 Maule & S. 172, 174 279
v. Railway Co., 91 Wis. 592, 65 N. W. 506 185, 187
Boggs v. Lynch, 22 Mo. 563 100
Bogie v. Town of Waupun, 75 Wis. 1, 43 N. W. 667 44G
Bohen v. City of Waseca, 32 Minn. 176, 19 N. W. 730 436
Bohn Mfg. Co. v. Erickson, 5 C. C. A. 341, 35 Fed. 943 106
Bohrer v. Harness Co., 19 Ind. App. 489, 45 N. E. 668 162
Boice v. Railroad Co., 61 Barb. (N. Y.) 611 198, 199
Boland v. Railroad Co., 36 Mo. 484 67
Bolch v. Smith, 7 Hurl. & N. 736 51
Bolinger v. Railroad Co., 36 Minn. 418, 31 N. W. 856 407
Bolton v. Railway Co., L. R. 1 C. P. 431 298
Bomar v. Maxwell, 9 Humph. (Tenn.) 620, 621 270, 271
Bonce v. Railway Co., 53 Iowa, 278, 5 N. W. 177. 216
Bond v. Ward, 7 Mass. 123 385
v. Wilder, 16 Vt. 393 384
Bonner v. Bridge Co., 5 Pa. Super. Ct. 281 91
Bonnet v. Railway Co. (Tex. Civ. App.) 31 S. W. 525 99, 112
Boon v. The Belfast, 40 Ala. 184 229
Boorman v. Express Co., 21 Wis. 154 258
Booth v. Mister, 7 Car. & P. 66 156
v. Railroad Co., 73 N. Y. 38, 40 90, 98
140 N. Y. 267, 35 N. E. 592 166
Boothby v. Railroad Co., 90 Me. 313, 38 Atl. 155 327
Borough of Bathurst v. Macpherson, 4 App. Cas. 256 455
Borough of Mauch Chunk v. Kline, 100 Pa, St. 119 434
Borough of Nanticoke v. Warne, 106 Pa. St. 373 61
Borough of Norristown v. Fitzpatrick, 94 Pa. St. 121 449, 450
Boscowitz v. Express Co., 93 111. 523 222, 238
Boskowitz v. Express Co. (111.) 5 Cent. Law J. 58 244
Boston, The, 1 Low. 464, Fed. Cas. No. 1,671. ^ 284, 285
Boston v. Gray, 144 Mass. 53, 10 N. E. 509 317
Boston, C. & M. R. Co. v. State, 32 N. H. 215 392
Boston & Hingham Steamboat Co. v. Munson, 117 Mass. 34 320
Boston & L. R. Co. v. Proctor, 1 Allen (Mass.) 267 199
Boston & M. R. Co. v. Chipman, 146 Mass. 107, 14 N. E. 940 199
Boswell v. Barnhart, 96 Ga. 521, 23 S. E. 414 146
Bosworth v. Railway Co., 30 C. C. A. 541, 87 Fed. 72 291
v. Rogers, 27 C. C. A. 385, 82 Fed. 975 129
v. Walker, 27 C. C. A. 402, 83 Fed. 58 185
Bottoms v. Railroad Co., 114 N. C. 699, 19 S. E. 730 65, 71
JBowditch v. City of Boston, 101 U. S. 16 443, 452
CASES CITED. 471
Page
Bowdle v. Railway Co., 103 Mich. 272, 61 X. W. 529 205
Bowe v. Hunking, 135 Mass. 380 315
Bowen v. Railroad Co., 89 Hun, 594, 35 N. Y. Supp. 540 330, 336
Bower v. Peate, 1 Q. B. Div. 321 165
Bowers v. Railroad Co., 162 Mass. 312, 38 N. E. 508 138
158 Pa. St. 302, 27 Atl. 893 ; 199
Bowler & Burdick Co. v. Railway Co., 10 Ohio Cir. Ct. R. 272 273
Bowman v. Railroad Co., 37 Barb. (N. Y.) 516 343
v. Tallman, 2 Rob. (N. Y.) 385 374
v. Teall, 23 Wend. (N. Y.) 306, 309 216, 227, 236
v. Woods, 1 G. Greene (Iowa) 441 377
Boyce v. Fitzpatrick, 80 Ind. 526 95
Boyd v. Insurance Patrol, 113 Pa. St. 269, 6 Atl. 536 450
v. Spencer, 103 Ga. 828, 30 S. E. 841 199, 200
v. Town of Deny (X. H.) 38 Atl. 1005 430
Boylan v. Everett, 172 Mass. 453, 52 X. E. 541 362
v. Railroad Co., 132 U. S. 146, 10 Sup. Ct. 50 199
Boyle v. Borough of Mahanoy City, 187 Pa. St. 1, 40 Atl. 1093, 42 Wkly.
Xotes Gas. 423 434
v. Railroad Co., 39 Hun (N. Y.) 171 343
Boze v. City of Albert Lea (Minn.) 76 X. W. 1131 444, 446
Brabbits v. Railway Co, 38 Wis. 289 150
Bracey v. Carter, 12 Adol. & E. 373 371
Bradford City v. Downs, 126 Pa. St. 622, 17 Atl. 884 54
Bradley v. Fisher, 13 Wall. 335 380
V. Railroad Co., 2 Gush. (Mass.) 539 324
138 Mo. 293, 39 S. W. 763 148
62 X. Y. 99 102
122 X. C. 972, 30 S. E. 8 408
Bradshaw v. Railway Co., L. R. 10 C. P. 189, 44 Law J. C. P. 148, 31 Law
T. (X. S.) 847 403
135 Mass. 407 186, 198
Brad well v. Railway Co., 153 Pa. St. 105, 25 Atl. 623 77
Brady v. Railroad Co., 1 Hun (X. Y.) 378 346, 347
Bramall v. Lees, 29 Law T. Ill 409
Brann v. Railroad Co., 53 Iowa, 595, 6 N. W. 5 91, 147
Brannan v. Adams, 76 111. 331 79
Brannen v. Gravel-Road Co., 115 Ind. 115, 17 X. E. 202 59, 60
Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451 42, 161, 162, 166
Bransom's Adm'r v. Labrot, 81 Ky. 638 306
Brass v. Maitland, 6 El. & Bl. 470 369, 370
Brazil v. Peterson, 44 Minn. 212, 46 X. W. 331 171, 172
Bream v. Brown, 5 Cold. (Tenn.) 168 404
Breckenf elder v. Railway Co., 79 Mich. 560, 44 X. W. 957 408
Breen v. Railroad Co., 50 Tex. 43 200
Brehme v. Dinsmore, 25 Md. 328 238
v. Express Co., 25 Md. 328 257
Brehmer v. Lyman (Vt) 42 Atl. 613 50, 306
Breig v. Railway Co., 98 Mich. 222, 57 X. W. 118 121
472 CASES CITED.
Page
Brennan v. Railroad Co., 45 Conn. 284 73
v. Schreiner (Super. N. Y.) 20 N. Y. Supp. 130 166
Brent v. Haddon, 3 Cro. Jac. 555 311
Brevig v. Railway Co., 64 Minn. 168, 66 N. W. 401 159, 191
Brewer v. Railway Co., 97 Tenn. 015, 37 S. W. 549 121
Brezze v. Powers, 80 Mich. 172, 45 N. W. 130 50
Briant v. Railroad Co., 104 Mich. 307, 62 N. W. 365 355, 359
Brickell v. Railroad Co., 120 N. Y. 290, 24 N. E. 449 60
Bricker v. Railroad Co., 132 Pa. St. 1, 18 Atl. 983 195
Briddon v. Railway Co., 28 L. J. Exch. 51 236
Bridge v. Railroad Co., 3 Mees. & W. 244 35
Bridger v. Railroad Co., 25 S. C. 24 66
27 S. C. 456, 3 S. E. 860 69
Bridges v. Railway Co., L. R. 7 H. L. 213. . 180
Briegel v. City of Philadelphia, 135 Pa, St. 451, 19 Atl. 1038 440
Brien v. Bennett, 8 Car. & P. 724 177
Briggs v. Railroad Co., 148 Mass. 72, 19 X. E. 19 74
72 ?J. Y. 26 46
Brigham v. Bussey, 26 La. Ann. 676 386
Brink v. Borough of Dunmore, 174 Pa. St 395, 34 Atl. 598 426
Brinkman v. Bender, 92 Ind. 234 86
Brinkmeyer v. City of Evansville, 29 Ind. 187 45O
Brintnall v. Railroad Co., 32 Vt 665 29G
Briscoe v. Railway Co., 103 Ga. 224, 28 S. E. 638 37
Bristol & E. Ry. Co. v. Collins, 5 Hurl. & N. 969, 29 Law J. Exch. 41 295
Britton v. Railroad Co., 88 N. C. 536 '. 207
Broadwell v. Swigert, 7 B. Mon. (Ky.) 39 37, 58
Broburg v. City of Des Moines, 63 Iowa, 523, 19 N. W. 340 433
Brock v. Copeland, 1 Esp. 203 362
v. Gale, 14 Fla. 523 270
Brockway v. Express Co., 168 Mass. 257, 47 N. E. 87 254
v. Patterson, 72 Mich. 122, 40 N. W. 192 400
Broderick v. Depot Co., 56 Mich. 261, 22 N. W. 802 171
v. Railway Co. (Minn.) 77 N. W. 28 109
Brodeur v. Valley Falls Co., 16 R, I. 448, 17 Atl. 54 14
Bronson v. Railroad Co., 24 App. Div. 262, 48 N. Y. Supp. 257 56
v. Town of Southbury, 37 Conn. 199 68
Brooke v. Pickwick, 4 Bing. 218 256
v. Railroad Co., 15 Mich. 332 182
Brooks v. Haslam, 65 Cal. 421, 4 Pac. 399 393
v. Inhabitants, 106 Mass. 271 447
v. Railroad Co., 135 Mass. 21 86
Brossman v. Railroad Co., 113 Pa. St. 490, 6 Atl. 226 HO
Brown v. Bank (N. H.) 39 Atl. 336 32
r. Carpenter, 26 Vt. 638 361
v. City of Lowell, 8 Mete. (Mass.) 172 438
v. City of Syracuse, 77 Hun, 411, 28 N. Y. Supp. 792 67
v. Engineering Co., 166 Mass. 75, 43 N. E. 1118 158
y. Express Co., 15 W. Va. 812 220, 239-
CASES CITED. 473
Page
Brown v. Green (Del. Super.) 42 Atl. 991 365
v. Harmon, 21 Barb. (N. Y.) 508 415
v. Harris, 2 Gray (Mass.) 359 210
v. Kendall, 6 Cush. (Mass.) 292 12
v. Lester, 13 Smedes & M. (Miss.) 392 383
v. Marshall, 47 Mich. 576, 11 N. W. 392 370
v. Railroad Co., 4 App. Div. 465, 38 X. Y. Supp. 655 356
11 Cush. (Mass.) 97 198, 257
4 Fed. 37 196
7 Fed. 51, 65 186, 192, 195, 19<3
51 Iowa, 235, 1 N. W. 487 <, 185
38 Kan. 634, 16 Pac. 942 188
58 Me. 384 70
49 Mich. 153, 13 N. W. 494 2
22 Minn. 165 39, 330
31 Minn. 553, 18 N. W. 834 141, 149
64 Mo. 536 196
66 Mo. 588 186
18 Mo. App. 569 262
54 N. H. 535 288
22 N. Y. 191 397
32 N. Y. 597 325
19 S. C. 39 358
40 U. C. Q. B. 333 189
16 Wash. 465, 47 Pac. 890 202
54 Wis. 342, 11 N. W. 356 40
77 X. W. (Wis.) 748 401
v. Smith, 86 Ga. 274, 12 S. E. 411 156
v. Society, 47 Me. 275 304
Browning v. Board, 44 Ind. 11, 13 441, 445
v. City of Springfield, 17 111. 143 432
v. Hanford, 5 Hill (N. Y.) 588, 591 385
v. Railway Co., 2 Daly (X. Y.) 117 251
124 Mo. 55, 27 S. W. 644 151
Bruker v. Town of Covington, 69 Ind. 33 44
Brulard v. The Alvin, 45 Fed. 766 179
Brunner v. Telegraph Co., 151 Pa. St. 447, 25 Atl. 29 174
Brunswick-Balke-Collender Co. v. Rees, 69 Wis. 442, 34 N. W. 732 312
Brunswick Gaslight Co. v. Brunswick Village Corp., 92 Me. 493, 43 Atl.
104 444
Brunswig v. White, 70 Tex. 504, 8 S. W. 85 409
Brusch v. Railway Co., 52 Minn. 512, 55 N. W. 57 205
Bruty v. Railway Co., 32 U. C. Q. B. 66 269
Bryan v. Fowler, 70 N. C. 596 349
Bryant v. City of St. Paul, 33 Minn. 289, 23 N. W. 220 453
v. Inhabitants, 86 Me. 450, 29 Atl. 1109 443
v. Railroad Co., 56 Vt. 710 100
46 S. W. (Tex. Civ. App.) 82 59
v. Rich, 106 Mass. 180 170
474 CASES CITED.
Pa?e
Brydon v. Stewart, 2 Macq. 30 93
Buckalew v. Railroad Co., 112 Ala. 146, 20 South. GOG 145
Buckingham v. Vincent, 23 App. Div. 238, 48 N. Y. Supp. 747 156
v. Water Co., 142 Pa. St. 221, 21 Atl. 824 , 370
Buckland v. Express Co., 97 Mass. 124 215, 292
2 Redf . Am. Ry. Gas. 46 280
Buckley v. Cunningham, 103 Ala. 449, 15 South. 826 315
v. Gee, 55 111. App. 388 365
y. Leonard, 4 Demo (N. Y.) 500 364
v. Mfg. Co., 41 Hun (N. Y.) 450 119
v. Railroad Co., 161 Mass. 26, 36 N. E. 583 179
18 Mich. 121 287
Buckman v. Levi, 3 Camp. 414 281
Budd v. Railroad Co., 69 Conn. 272, 37 Atl. 683 416
Buddy v. Railway Co., 20 Mo. App. 206 288
Buel v. Railroad Co., 31 N. Y. 314. .'. 41
Buenemann v. Railway Co., 32 Minn. 390, 20 N. W. 379 208
Bueschirig v. Gaslight Co., 73 Mo. 219 418
Buffett v. Railroad Co., 40 N. Y. 168 182
Bulkley v. Cotton Co., 24 How. 386 227
v. Railroad Co., 27 Conn. 479: 343
Bundschuh v. Mayer, 81 Hun, 111, 30 N. Y. Supp. 622 363
Bunnell v. Bridge Co., 66 Conn. 24, 33 Atl. 533 43
v. Railway Co., 29 Minn. 305, 13 N. W. 129 98
13 Utah, 314, 44 Pac. 927 348
Bunting v. Railroad Co., 16 Nev. 277 35
Burch v. Hardwicke, 30 Grat. (Va.) 24 443
v. Railroad Co., 3 App. D. C. 346 185
Burdick v. Cheadle, 26 Ohio St. 393 314, 316, 317
Burgess v. Gray, 1 Man. G. & S. 578 161
Burke v. De Castro, 11 Hun (N. Y.) 354 156, 157
v. Ireland, 26 App. Div. 487, 50 N. Y. Supp. 369 162
v. Railroad Co., 49 Barb. (N. Y.) 529 63
7 Heisk. (Tenn.) 451 359
51 Mo. App. 491 187
v. Refining Co., 11 Hun (N. Y.) 354 128
Burlington & M. R. Co. v. Crockett, 17 Neb. 570, 24 N. W. 219 416
19 Neb. 138, 26 N. W. 921 98, 148
24 Am. & Eng. R. Cas. 390 98
v. Westover, 4 Neb. 268 353, 357
Burnell v. Railroad Co., 45 N. Y. 184 289
87 Wis. 387, 58 N. W. 772 109
Burnham v. City of Boston, 10 Allen (Mass.) 290 435
v. Jackson, 1 Colo. App. 237, 28 Pac. 250 377
v. Railroad Co., 63 Me. 298 185, 198
Burns v. Railroad Co., 4 App. Div. 426, 38 X. Y. Supp. 856 169
69 Iowa, 450, 30 N. W. 25 92
101 Mass. 50 82, 211
V. Bennett, 44 Pac. 1068 146
CASES CITED. 475
Page
Burns v. Steamship Co., 84 Ga. 709, 11 S. E. 493 112
Buroughes v. Bayne, 5 Hurl. & N. 296 297
Burroughs v. Railroad Co., 15 Conn. 124 353, 354
100 Mass. 2U 294, 295
Burrows v. Coke Co., L. R. 5 Exch. Cas. 67 54
Burtis v. Railroad Co., 24 N. Y. 269, 272 291
Burton v. Railroad Co., 82 N. C. 504 407
Burud v. Railroad Co., 62 Minn. 243, 64 N. W. 562 337
Burwell v. Railroad Co., 94 N. C. 451 223
Bus^h v. Railroad Co., 29 Hun (N. Y.) 112 57
Bush v. Brainard, 1 Cow. (N. Y.) 78 309, 310
v. Steinman (1799) 1 Bos. & P. 404 174
v. Wathen (Ky.) 47 S. W. 590, 599 362, 365
Bussruan v. Transit Co., 9 Misc. Rep. 410, 29 N. Y. Supp. 1066 182
Butler v. Heane, 2 Camp. 415 256
v. Hunter, 7 Hurl. & N. 826 166
v. Railroad Co., 3 E. D. Smith (N. Y.) 571 272
58 N. Y. Supp. (Sup.) 1061 "... 95
Button v. Railroad Co., 18 N. Y. 248 51, 83
Buttrick v. City of Lowell, 1 Allen (Mass.) 172 444
Bute v. Cavanaugh, 137 Mo. 503, 38 S. W. 1104 49, 309
Buxton v. Railroad Co., L. R. 3 Q. B. 549 206, 341
Buzzell v. Mfg. Co., 48 Me. 113 93, 94, 117, 120
Byerly v. City of Anamosa, 79 Iowa, 204, 44 N. W. 359 432
Byrne v. Morel (Ky.) 49 S. W. 193 '. 364
v. Railroad Co., 9 C. C. A, 666, 61 Fed. 605 157
83 N. Y. 620 .- 67
104 N. Y. 362, 10 N. E. 539 49, 327
Byrnes v. Palmer, 18 App. Div. 1, 45 N. Y. Supp. 479 374
C
Cable v. Railway Co., 122 N. 0. 892, 29 & E. 377 181
Cadden v. Barge Co., 88 Wis. 409, 60 N. W. 800 151
Cadwallader v. Railroad Co., 9 L. C. 169 270
Cahill v. Hilton, 106 N. Y. 512, 13 N. E. 339 123
v. Railway Co., 13 C. B. (N. S.) 818 273
Cairncross Y. Village of Pewaukee, 86 Wis. 181, 56 N. W. 648 19
Cairns v. Robins, 8 Mees. & W. 258 2S8
Calderon v. Steamship Co., 16 C. C. A. 332, 69 Fed. 574 250
Caldwell v. Brown, 53 Pa. St. 453 409, 410
v. Hunter, 10 Q. B. 69, 83 371
v. Railroad Co., 58 Mo. App. 453 332
v. Steamboat Co., 47 N. Y. 282 29, 204
Caledonia, The, 157 U. S. 124, 15 Sup. Ct 537 235
Callahan v. Bean, 9 Allen (Mass.) 401 66
v. Loughran, 102 Cal. 476, 36 Pac. 835 313, 315, 317
V. Warne, 40 Mo. 131 369
476 CASES CITED.
Pa?e
Callan v. Bull, 113 Cal. 593, 45 Pac. 1017 93
Callanan v. Oilman, 107 N. Y. 360, 14 N. E. 264 435
Callaway v. Sturgeon, 58 111. App. 159 358
Callender v. Marsh, 1 Pick. (Mass.) 418, 431 438, 439, 442
Calumet Electric St. Ry. Co. v. Van Pelt, 68 111. App. 582 08
Calvo v. Railroad Co., 23 S. C. 526 140
Calwell v. City of Boone, 51 Iowa, 687, 2 N. W. 614 443
Camden & A. R. Co. v. Baldauf, 16 Pa. St. 67 230
. v. Forsyth, 61 Pa. St. 81 292, 294
Cameron v. Express Co., 48 Mo. App. 99 174
Camp v. Hall, 39 Fla. 535, 22 South. 792 158
v. Steamboat Co., 43 Conn. 333 238
v. Wood, 76 N. Y. 92 304
Campbel v. Morse, 1 Harp. (S. C.) 468 222
Campbell v. Boyd, 88 N. C. 129 50
v. City of Stillwater, 32 Minn. 308, 20 N. W. 320 11
v. Harris, 4 Tex. Civ. App. 636, 23 S. W. 35 128
v. Mullen, 60 111. App. 497 82
y. Railroad Co. (Pa.) 2 Atl. 489 93
59 Mo. App. 151, 1 Mo. App. Rep'r, 3 344
Campbell's Adm'r v. Railroad Co. (Va.) 21 S. E. 480 331
Campbell's Adm'x v. Council, 53 Ala. 527 452
Candee v. Railroad Co., 21 Wis. 582, 589 182, 206, 292, 293
Candiff v. Railway Co., 42 La. Ann. 477, 7 South. 601 172
Canefox v. Crenshaw, 24 Mo. 199. 361
Canning v. Railway Co. (Sup.) 50 N. Y. Supp. 506 394
Cannon v. Lewis, 18 Mont. 402, 45 Pac. 572 42
Cantling v. Railroad Co., 54 Mo. 385 256, 271
Cantu v. Bennett, 39 Tex. 303 253
Cantwell v. Express Co., 58 Ark. 487, 25 S. W. 503 237
Capehart v. Railroad Co., 77 N. C. 355; 81 N. C. 438 251
Card v. Eddy, 129 Mo. 510, 28 S. W. 753, 979 148
Carey v. Railroad Co., 1 Gush. (Mass.) 475 391
Carletoii v. Steel Co., 99 Mass. 216 304
Carlile v. Parkins, 3 Starkie, 163 384
Carlisle v. Town of Sheldon, 38 Vt. 440 61
Carlson v. Railway Co., 21 Or. 450, 28 Pac. 497 149
v. Stocking, 91 Wis. 432, 65 N. W. 58 166
v. Telephone Exch. Co., 63 Minn. 428, 65 N. W. 914 105, 106
Carman v. Railroad Co., 4 Ohio St. 399 158, 167, 446, 447
Carmer v. Railway Co., 95 Wis. 513, 70 N. W. 560 336
Carpenter v. Blake, 60 Barb. (X. Y.) 488 376-378
v. City of Cohoes, 81 N. Y. 21 4, 445
v. Railroad Co., 97 N. Y. 494 la3, 324
Carr v. Northern Liberties, 35 Pa. St. 324 429
v. Railway Co., 7 Exch. 707 238
v. Schafer, 15 Colo. 48, 24 Pac. 873 223
Carrico v. Railway Co., 35 W. Va. 389, 14 S. E. 12 202
39 W. Va. 86, 19 S. E. 571 . 104
CASES CITED. 477
Page
Carrington v. Railroad Co., 88 Ala. 472, 6 South. 910 3G
Carroll v. Railroad Co., 13 Minn. 30 (Gil. 18) 7, 36, 52
88 Mo. 239 212, 414, 392
58 N. Y. 126 29, 189, 204
v. Telegraph Co., 160 Mass. 152, 35 N. E. 456 93
Carr's Ex'x v. Glover, 70 Mo. App. 242 374
Carson v. Railway Co., 96 Iowa, 583, 65 N. TV. 831 69
Carstesen v. Town of Stratford, 67 Conn. 428, 35 Atl. 276 437
Carter v. Peck, 4 Sneed (Tenn.) 203 182, 293, 295
v. Railroad Co., 42 Fed. 37 203
19 S. C. 20, 24 3
v. Towoe, 103 Mass. 507 19
Cary v. Railroad Co., 29 Barb. 35 182
Case v. Minot, 158 Mass. 577, 33 N. E. 700 316
v. Railroad Co., 59 Barb. (N. Y.) 644 357
75 Mo. 668 345
59 X. J. Law, 471, 37 Atl. 65 348
Casey v. Railroad Co., 6 Abb. N. C. (N. Y.) 104 67
v. Smith, 152 Mass. 294, 25 N. E. 734 70
Cassady v. Magher, 85 Ind. 228 78
Cassedy v. Stockbridge, 21 Vt. 391 76, 77
Cassidy v. Angell, 12 R. I. 447 84
v. Railroad Co., 9 Misc. Rep. 275, 29 N. Y. Supp. 724 205
Castello v. Landwehr, 28 Wis. 522 407
Castile v. Ford, 53 Neb. 507, 73 N. W. 945 383
Castle v. Duryee, 41 N. Y. 169, 32 Barb. (N. Y.) 480 367
Catawissa R. Co. v. Armstrong, 49 Pa. St. 186 36, 37, 128-130, 211
52 Pa. St. 282 407, 414
Cates v. Itner, 104 Ga. 679, 30 S. E. 884 146
Caton v. City of Sedalia, 62 Mo. App. 227 436
Cattaraugus Cutlery Co. v. Railroad Co., 24 App. Div. 267, 48 N. Y. Supp.
451 273
Caulkins v. Mathews, 5 Kan. 191 80
Cavanagh v. City of Boston, 139 Mass. 426, 1 N. E. 834 444
v. Dinsmore, 12 Hun, 465 173
Caverly v. McOwen, 123 Mass. 574 374
Cawfield v. Railway Co., Ill N. C. 597, 16 S. E. 703 205
Cawley v. Railway Co., 101 Wis. 145, 77 N. W. 179 323
ayf ord v. Wilbur, 86 Me. 414, 29 Atl. 1117 376
Cayzer v. Taylor, 10 Gray (Mass.) 274 2, 54
Central Pass. Ry. Co. v. Kuhn, 86 Ky. 578, 6 S. W. 441 207
Central R. Co. v. Bryant, 73 Ga. 722, 726 238
v. Crosby, 74 Ga. 737 414
v. De Bray, 71 Ga. 406 146
v. Feller, H4 Pa. St. 226 74, 336
v. Freeman, 66 Ga. 170 86
v. Green, 86 Pa. St. 427 19"
v. Hubbard, 86 Ga. 623, 12 S. E. 1020 40
V. Peacock, 69 Md. 257, 14 Atl. 709 l\2
478 CASES CITED.
Page
Central R. Co. v. Rouse, 77 Ga, 393, 3 S. E. 307 412, 418
v. Sears, 66 Ga. 499 413.
v. Smalley (N. J. Err. & App.) 39 Atl. 695 331, 335
v. Thompson, 70 Ga, 770 394
Central R. Co. of New Jersey v. Keegan, 160 U. S. 259, 16 Sup. Ct 269.. . l5
v. Van Horn, 38 N. J. Law, 133 180
Central Railroad & Banking Co. v. Bayer, 91 Ga. 115, 16 S. E. 953 296
v. Brantley, 93 Ga. 259, 20 S. E. 98 152
v. Chapman, 96 Ga. 769, 22 S. E. 273 Ill
v. Georgia. Fruit & Vegetable Exchange, 91 Ga. 389, 17 S. E. 904. . .292, 293
v. Kitchens, 83 Ga. 83, 9 S. E. 827 394
v. Newman, 94 Ga. 560, 21 S. E. 219 35, 52
v. Phillips, 91 Ga. 526, 17 S. E. 952 67
v. Phinazee, 93 Ga. 488, 21 S. E. 66 ; . 77
v. Roach, 64 Ga. 635 100-
v. Ryles, 84 Ga. 420, 11 S. E. 499. .: 104
Central Texas & N. W. Ry. Co. v. Bush. 12 Tex. Civ. App. 291, 34 S. W. 133 85
v. Nycum (Tex. Civ. App.) 34 S. W. 460 338
Central Trust Co. v. Railway Co., 26 Fed. 896 44
31 Fed. 246 60
65 Fed. 332 % 199
Central Vermont R. Co. v. Soper, 8 C. C. A. 34i, 59 Fed. 879 251
Cerrillos Coal R. Co. v. Deserant (N. M.) 49 Pac. 807 148, 40.>
Chaddock v. Tabor, 115 Mich. 27, 72 N. W. 1093 367
Chaffee v. Railroad Co., 104 Mass. 108 333.
35 Atl. (R. I.) 47. 339
Chamberlain v. Car Co., 55 Mo. App. 474 278
v. Railway Co., 133 Mo. 587, 33 S. W. 437, 34 S. W. 842 330
11 Wis. 238 188
Chandler v. City of Bay St. Louis, 57 Miss. 327 451
v. Fremont Co., 42 Iowa, 58 456
Chant v. Railway Co., Wkly. Notes (Eng.) 1866, p. 134 408, 409
Chapin v. Railway Co., 79 Iowa, 582, 44 N. W. 820 227
Chapman v. Railroad Co., 19 N. Y. 341 25, 57, 59
v. Reddick (Fla.) 25 South. 673 385
v. Rothwell, El., Bl. & El. 168 304
Chappell v. Gregory, 34 Beav. 250 315
Charlebois v. Railroad Co., 91 Mich. 59, 51 N. W. 812 161, 415
Charles v. Taylor, 3 C. P. Div. 492 129
Chase v. City of Cleveland, 44 Ohio St. 505, 9 N. E. 225 434
v. City of Lowell, 151 Mass. 422, 24 N. E. 212 436
v. Heaney, 70 111. 268 374, 388
v. Railroad Co., 24 Barb. (N. Y.) 273 39, 53
Chataigne v. Bergeron, 10 La. Ann. 699 367
Chattanooga, R. & C. R. Co. v. Liddell, 85 Ga. 482, 11 S. E. 853 209
Chattanooga S. R. Co. v. Daniel (Ala.) 25 South. 197 344
Chattock v. Bellamy, 15 Reports, 340 215
Cheaney v. Hooser, 9 B. Mon. (Ky.) 330 424
Cheeney v. Town of Brookfield, 60 Mo. 53 444
CASES CITED. 479
Page
Cheesman v. Exall, 6 Exch. 341 297
Cheetham v. Hampson, 4 Term R. 318 161, .311
Cheney v. Railroad Co., 16 Hun (N. Y.) 415 324, 326
11 Mete. (Mass.) 121 185, 200
Chenowith v. Chamberliu, 6 B. Mon. (Ky.) 60 38&
Cherokee & P. Coal & Mining Co. v. Limb, 47 Kan. 469, 28 Pac. 181 410
Cherry v. Railroad Co., 1 Mo. App. Rep'r, 253 182
Chesapeake, O. & S. W. R. Co. v. McDowell (Ky.) 24 S. W. 607 120
Chesapeake & O. R. Co. v. Radbourne, 52 111. App. 203 295
v. Smith (Ky.) 39 S. W. 832 86-
v. Steele, 29 C. C. A. 81, 84 Fed. 93 340
v. Yost (Ky.) 29 S. W. 326 5, 6
Chicago, B. & Q. R. Co. v. Bond (Neb.) 78 N. W. 710 416
v. Damerell, 81 111. 450 340
v. Dougherty, 110 111. 521 328
12 111. App. 181 326
V. Eggnwu, 59 111. App. 680 120
v. Gardiner, 51 Neb. 70, 70 N. W. 508 254
v. Grabliu, 38 Neb. 90, 56 N. W. 796 67
v. Gregory, 58 111. 272 418
v. Griffin, 68 111. 499 198
v. Gunderson, 74 111. App. 356 41
v. Harwood, 80 111. 88 340, 414
90 111. 425 328
v. Hazzard, 26 111. 373 205
v. Howard, 45 Neb. 570, 63 N. W. 872 148
v. Iowa, 94 U. S. 155 20O
v. Johnson, 103 111. 512, 521 3
53 111. App. 478 329
v. Kellogg, 54 Neb. 127, 74 N. W. 454 148
v. Landauer, 36 Neb. 642, 54 N. W. 976 205
v. Lee, 87 111. 4r,4 , 326
v. Levy, 160 111. 385, 43 N. E. 357 : 81
v. McGinnis, 49 Neb. 649, 68 N. W. 1057 116
v. Manning, 23 Neb. 552, 37 N. W. 462 220
v. Mehlsack, 131 111. 61, 22 N. E. 812 195
v. Oyster (Neb.) 78 N. W. 359 91, 102, 416
v. Spring, 13 111. App. 174 334
v. Thorson, 68 HI. App. 288 33O
v. Triplett, 38 111. 482 75, 394
v. Van Buskirk (Neb.) 78 N. W. 514 416
v. Yorty, 158 111. 321, 42 N. E. 64 324
Chicago City v. Robbins, 2 Black, 418 425
Chicago City Ry. Co. v. Dinsmore, 162 111. 658, 44 N. E. 887 32
v. Gillam, 27 111. App. 386 . 405
v. Pelletier, 134 111. 120, 24 N. E. 770 183, 197
v. AVilcox, 138 111. 370, 27 N. E. 899 62, 66, 71
Chicago Economic Fuel Gas Co. v. Myers, 168 111. 139, 48 N. E. 66 161
Chicago, K. & W. R. Co. v. Frazer, 55 Kan. 582, .40 Pac. 923 178
480 CASES CITED.
Page
Chicago League Ball Club v. City of Chicago, 77 111. App. 121 > 452
Chicago, M. & St. P. Ry. Co. v. Dowd, 115 111. G59, 4 N. W. 308 414
v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 4.62, 702 201
v. Ross, 112 U. S. 377, 5 Sup. Ct. 184 127, 132-, 142
v. Walsh, 157 111. 672, 41 N. E. 900 32, 338
v. West, 125 111. 320, 17 N. E. 788 129
Chicago, P. & St. L. Ry. Co. v. Lewis, 145 111. 67, 33 N. E. 900 202, 205
Chicago, R. I. & P. R. Co. v. Austin, 69 111. 426 407
v. Bell, 70 111. 102 76
v. Boyce, 73 111. 510 271
v. Collins, 56 111. 212 269
v. Fairclough, 52 111. 106 275, 289
v. Harmon, 12 111. App. 54 202
v. Hinds, 56 Ivan. 758, 44 Pac. 993 340
v. Houston, 95 U. S. 697 330
v. Kennedy, 2 Kan. App. 693, 43 Pac. 802 338
v. McBride, 54 Kan. 172, 37 Pac. 978 15, 352
v. Martin, 59 Kan. 437, 53 Pac. 461 205
v. Ohlsson, 70 111. App. 487 326, 336
v. Pounds, 27 C. C. A. 112, 82 Fed. 217 336
v. Sutton, 11 C. C. A. 251, 63 Fed. 394 20, 25, 26
v. Williams, 59 Kan. 700, 54 Pac. 1047 335
v. Witty, 32 Neb. 275, 49 N. W. 183 239
v. Young (Neb.) 79 N. W. 556 403
Chicago, R. I. & T. R. Co. v. Boyles, 11 Tex. Civ. App. 522, 33 S. W. 247. .. 205
Chicago, St. L. & N. O. R. Co. v. Abels, 60 Miss. 1017 220, 239, 249, 251
v. Moss, 60 Miss. 1003 220
Chicago, St. L. & P. R. Co. v. Holdridge, 118 Ind. 281, 20 N. E. 837 199
v. Williams, 131 Ind. 30, 30 N. E. 696 15
v. Wolcott, 141 Ind. 267, 39 N. E. 451 293
Chicago, St P., M. & O. Ry. Co. v. Brady, 51 Neb. 758, 71 N. W. 721 328
v. Lundstrom, 16 Neb. 254, 20 N. W.,200 148
Chicago, St. P. &' K. C. R. Co. v. Ryan, 62 111. App. 264 32
Chicago & A. R. Co. v. Addizoat, 17 111. App. 632 289
v. Adler, 28 111. App. 102 411
v. Anderson, 166 111. 572, 46 N. E. 1125 51
v. Arnol, 144 111. 261, 33 N. E. 204 181, 205
v. Becker, 76 111. 25 414
84 111. 483 336, 409
V. Blaul, 175 111. 183, 51 N. E. 895 S40
70 111. App. 518 333
v. Byrum, 153 111. 131, 38 N. E. 578 74, 202
v. Carey, 115 111. 115, 3 N. E. 519 418
v. Davis, 159 111. 53, 42 N. E. 382 222, 223
v, Dillon, 123 111. 570, 15 N. E. 181 326
v. Dumser, 161 111. 190, 43 N. E. 698 182
v. Fears, 53 111. 115 332
v. Fietsam, 123 111. 518, 15 N. E. 169 394
v. Glenny, 70 111. App. 510 . 356
CASES CITED. 481
Page
Chicago & A. R. Co. v. Gregory, 58 111. 226 21, 64
v. Grimes, 71 111. App. 397 236
v. House, 172 111. 601, 50 N. E. 151 135
v. Johnson, 116 111. 206, 4 N. E. 381 110
v. Kelly, 127 111. 637, 21 N. E. 203 130
75 111. App. 490 81
v. Maroney, 170 111. 520, 48 N. E. 953 90
v. May, 108 111. 288, 300 133, 136, 407
v. Means, 48 111. App. 396 74
v. Michie, 83 111. 427 46, 195
v. O'Bi-ien, 155 111. 630, 40 N. E. 1023 128, 134, 135
v. O'Xeil, 64 111. App. 623 325
v. Pennetl, 110 111. 435 357
v. Pillsbury, 123 111. 9, 14 N. E. 22 207
v. Randolph, 65 111. App. 208 183
v. Redmond, 70 111. App. 119 333
V. Robinson, 106 111. 142 328
9 111. App. 89 326
v. Scott, 42 111. 132 288
v. Shannon, 43 111. 388 411, 414, 415
v. Simms, 18 111. App. 68 251
v. Smith, 77 111. App. 492 416
v. Swan, 70 111. App. 331 135
v. Thompson, 19 111. 578 230, 231
v. Thrapp, 5 111. App. 502 237
v. Utley, 38 111. 410 346
v. Winters, 175 111. 293, 51 N. E. 901 179, 191
Chicago & E. 1. R. Co. v. Blair, 75 111. App. 659 347
v. Boggs, 101 Ind. 522 327, 328
v. Chancellor, 60 111. App. 525 176, 177
v. Garner, 78 111. App. 281 91
v. Maloney, 77 111. App. 191 109
v. Roberts, 44 111. App. 179 39
Chicago & E. R. Co. v. Bailey, 19 Ind. App. 163, 46 N. E. 688 356
v. Luddington, 10 Ind. App. 636, 38 N. E. 342 15, 352. 354.
Chicago & G. E. Ry. Co. v. Harney, 28 Ind. 28 63, 97
Chicago & G. T. Ry. Co. v. Kinnare, 76 111. App. 394 40
v. Stewart, 77 111. App. 66 208
Chicago & G. W. Ry. Co. v. Armstrong, 62 111. App. 228 91
Chicago & N. E. Ry. Co. v. Miller, 46 Mich. 532, 9 N. W. 841 74, 328
Chicago & N. R. Co. v. Donahue, 75 111. 106 39
v. Merrill. 48 111. 425 284
Chicago & N. W. R. Co. v. Barrie, 55 111. 226 342, 344, 345
v. Bayfield, 37 Mich. 205, 210 123, 127, 137, 410, 412
T. Carroll, 5 111. App. 201 193
12 111. App. 643 14
v. Chapman, 30 111. App. 504 5
v. Fillmore, 57 111. 265 208
v. Gillison, 173 111. 264, 50 N. E. 657 151
BAR.NEG.-31
482 CASES CITED.
Page
Chicago & N. W. R. Co. v. Hansen, 16G 111. 623, 40 X. E. 1071 * 335
v. Harris, 54 111. 528 346
v. Howard, 6 111. App. 509 412
v. Jackson, 55 111. 492 90
v. Kane, 50 111. App. 100 109
v. Moranda, 93 111. 302 412
108 111. 576 134, 133
v. Northern Line Packet Co., 70 111. 217. ... 295
v. People, 56 111. 365 295
v. Prescott, 8 C. C. A. 109, 59 Fed. 237 IS
v. Sawyer, 69 IU. 285 227
v. Simon, 160 111. 648, 43 N. E. 596 248, 256
v. Smedley, 65 111. App. 644 343
v. Snyder, 117 111. 376, 7 N. E. 604 130, 152
v. Swett, 45 111. 197 90, 94, 97, 414, 415
v. Taylor, 69 111. 461 102
v. Tuite, 44 111. App. 535 135
v. Ward, 61 111. 130 Ill
v. Whitton's Adm'r, 13 Wall. 270 405, 408, 414
v. Williams, 55 111. 185 195, 190
Chicago & R. I. R. Co. v. Fahey, 52 111. 81 182
v. McKean, 40 IU. 218 76, 330
v. Morris, 26 111. 400 403, 416
Chicago & W. I. R. Co. v. Flynn, 154 111. 448, 40 N. E. 332; 54 111. App. 387 103
v. Schroeder, 18 111. App. 328 415
Chickering v. Fowler, 4 Pick. (Mass.) 371 282, 284, 286
Chielinsky v. Hoopes & Townsend Co., 1 Marv. 273, 40 Atl. 1127 107, 116
Child v. City of Boston, 4 Allen (Mass.) 41 429, 431, 444
v. Hearn, L. R. 9 Exch. 183 27
Childrey T. City of Huntington, 34 W. Va. 457, 12 S. E. 536 IS
Chiles v. Drake, 2 Mete. (Ky.) 146, 154 367, 421
Chilton v. City of St. Joseph, 143 Mo. 192, 44 S. W. 766 434
Chittenden v. Crosby, 5 Kan. App. 534, 48 Pac. 209 381
Chitty v. Railway Co. (Mo. Sup.) 49 S. W. 868 41
Chivers v. Rogers, 50 La. Ann. 57, 23 South. 100 404
Chouteaux v. Leech, 18 Pa. St. 224 222, 223
Christenson v. Express Co., 15 Minn. 270 (Gil. 208) 215. 237
Christian v. Railway Co., 90 Ga. 124, 15 S. E. 701 171
Christie v. The Craigton, 41 Fed. 62. '. 219
v. Griggs, 2 Camp. 79 202. 204
Churchill v. Holt, 127 Mass. 165 54
Churchman v. Tunstal, Hardr. 162 455
Church of the Ascension v. Buckhart, 3 Hill (N. Y.) 193 302
Cicero & P. St. Ry. Co. v. Meixner, 160 111. 320, 43 N. E. 823 81
Cincinnati, H. & D. Ry. Co. v. Nolan, 8 Ohio Cir. Ct. R. 347 74
v. Spratt, 2 Duv. (Ky.) 4 295
v. Waterson, 4 Ohio St. 425 33
Cincinnati, H. & I. R. Co. v. Jones, 111 Ind. 259, 12 N. E. 113 340
Cincinnati, L, St. L. & C. R. Co. v. Cooper, 120 Ind. 469, 22 N. E. 340 183
CASES CITED. 483
Page
Cincinnati, N. O. & T. P. R. Co. v. Barker, 94 Ky. 71, 21 S. W. 347 15
v. Farra, 13 C. C. A. 602, 66 Fed. 496 337
v. N. K. Fairbanks & Co., 33 C. C. A. 611, 90 Fed. 467 223, 291
v. Palmer, 98 Ky. 382, 33 S. W. 199 147
v. Sampson's Adm'r, 97 Ky. 65, 30 S. W. 12 110
v. Vivion (,Ky.) 41 S. W. 580 202
Cincinnati, N. O. & T. P. Ry. Co.'s Receiver v. Webb (Ky.) 46 S. W. 11. . . 266
Cincinnati St. Ry. Co. v. Wright, 54 Ohio St. 181, 43 N. E. 688 60, 68
Cincinnati, S. & C. R. Co. v. Skillman, 39 Ohio St 444 184
Cincinnati & A. L. R. Co. v. McCool, 26 Ind. 140 288
Cincinnati & C. A. L. R. Co. v. Marcus, 38 111. 219 271
Cincinnati & Z. R. Co. v. Smith, 22 Ohio St. 227 342, 343
Citizens' Bank v. Howell, 8 Md. 530 387
v. Steamboat Co., 2 Story, 16, Fed. Gas. No. 2,730 215
Citizens' Loan, Fund & Savings Ass'n v. Friedley, 123 Ind. 143, 23 N.
E. 1075 373
Citizens' St. R. Co. v. Spahr, 7 Ind. App. 23, 33 N. E. 446 74
v. Sutton, 148 Ind. 169, 46 N. E. 462 42
Citron v. Bayley, 36 App. Div. .130, 55 N. Y. Supp. 382 303
City Council of Augusta v. Hudson, 88 Ga. 599, 15 S. E. 678 431
v. Lombard, 99 Ga. 282, 25 S. E. 772 430, 431
City of Albany v. Cunliff, 2 Barb. (N. Y.) 190; 2 N. Y. 165 4, 441
v. Railroad Co., 76 Hun, 136, 27 N. Y. Supp. 848 19
City of Anderson v. East, 117 Ind. 126, 19 N. E. 726 449-451
v. Hervey, 67 Ind. 420 86
City of Atchison v. King, 9 Kan. 550 18, 21
v. Twine, 9 Kan. 350 416
City of Aurora v. Love, 93 111. 521 429
v. Pulfer, 56 111. 270 449
City of Beatrice v. Reid, 41 Xeb. 214, 59 N. W. 770 164
City of Belleville v. Hoffman, 74 111. App. 503 426
City of Bloomington v. Perdue, 99 111. 329 76
City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949 444
City of Centralia v. Krouse, 64 111. 19 438
City of Champaign v. White, 38 111. App. 233 76
v. Cement Co., 178 111. 372, 53 X. E. 68 452
City of Chicago v. Gallagher, 44 111. 295 435
v. Hesing, 83 111. 204 409
v. Hoy, 75 111. 530 , 436
v. Joney, 60 111. 383 162, 441
v. Keefe, 114 111. 222, 2 N. E. 267 409-
v. Kelly, 69 111. 475 445
v. Langlass, 52 111. 256, 66 111. 361 445
v. McCulloch, 10 111. App. 459 '. . 413
v. McDonald, 57 111. App. 250 435
v. McGiven, 78 111. 347 433
v. McGraw, 75 111. 566 442
v. Major, 18 111. 349 62, 400, 403, 405, 409
v. O'Brennan, 65 111. 160 312
484 CASES CITED.
Page
City of Chicago v. Richardson, 75 111. App. 198 434
v. Robbins, 2 Black, 418, 4 Wall. 657 447
v. Scholten, 75 111. 468 409
v. Seben, 165 111. 371, 46 N. E. 244 430, 432
v. Starr, 42 111. 174 12, 67
v. Turner, 80 111. 419 444
v. Wright, 69 111. 318 44M
City of Cincinnati v. Penny, 21 Ohio St. 499 438
v. Stone, 5 Ohio St. 38 447
City of Circleville v. Neuding, 41 Ohio St. 465 446, 447
City of Clay Centre v. Jevons, 2 Kan. App. 568, 44 Pac. 745 24
City of Clinton v. Railroad Co., 24 Iowa, 455 424
City of Dallas v. McAllister (Tex. Civ. App.) 39 S. W. 173 432
City of Dayton v. Pease, 4 Ohio St. 80 426, 441)
City of Decatur v. Besten, 169 111. 340, 48 N. E. 186 432
City of Delphi v. Lowery, 74 Ind. 520 412
City of Denver v. Capelli, 4 Colo. 25 429
v. Dunsmore, 7 Colo. 328, 3 Pac. 705 432, 456
City of Detroit v. Beckman, 34 Mich. 125 449
v. Putnam, 45 Mich. 263, 7 N. W. 815 42i>
City of Evansville v. Decker, 84 Ind. 325 429
v. Senhenn, 151 Ind. 42, 47 N. E. 634 70
City of Ft. Worth v. Crawford, 64 Tex. 202 450
v. Shero (Tex. Civ. App.) 41 S. W. 704 437
City of Freeport v. Isbell, 83 111. 440 435, 449
City of Galveston v. Barbour, 62 Tex. 172 406, 409
v. Posnainsky, 62 Tex. 118 425, 449
City of Guthrie v. Swan, 5 Okl. 779, 51 Pac. 562 432
City of Harrisburg v. Saylor, 87 Pa. St. 216 447
City of Helena v. Thompson, 29 Ark. 569 426
City of Henderson v. Burke (Ky.) 44 S. W. 422 435
City of Highlands v. Raine, 23 Colo. 295, 47 Pac. 283 434
City of Hillsboro v. Jackson (Tex. Civ. App.) 44 S. W. 1010 85, 434
City of Huntingburg v. First (Ind. App.) 43 N. E. 17 82
City of Independence v. Slack, 134 Mo. 66, 34 S. W. 1094 161
City of Ironton v. Kelley, 38 Ohio St. 50 164
City of Jacksonville v. Smith, 24 C. C. A. 97, 78 Fed. 292 432
City of Jeffersonville v. McHenry (Ind. App.) 53 N. E. 183 70
City of Joliet v. Seward, 86 111. 402 55
City of Kansas City v. Brady, 52 Kan. 297, 34 Pac. 884 429, 430, 441
City of Lafayette v. Spencer, 14 Ind. 399 438
City of Lanark v. Dougherty, 153 111. 163, 38 N. E. 892 81
City of Lansing v. Toolan, 37 Mich. 152 430
City of Lebanon v. McCoy, 12 Ind. App. 500, 40 N. E. 700 147, 152
City of Lincoln, The, 25 Fed. 835, 839 286
City of Litchfield v. South worth, 67 111. App. 398 430
City of Logansport v. Dick, 70 Ind. 65 447
v. Wright, 25 Ind. 513 42.'.
City of Louisville v. Hegan (Ky.) 49 S. W. 532 438
T. Mill Co., 3 Bush (Ky.) 416 438
CASES CITED. 485
Page
City of Lowell v. Spaulding, 4 Gusli. (Mass.) 277 25, 312
City of Lynchburg v. Wallace, 95 Va. 640, 29 S. E. 675 434
City of Mt. Vernon v. Hoehn (Ind. App.) 53 N. E. 654 436
City of New Bedford v. Inhabitants, 9 Allen (Mass.) 207 444
City of New Orleans v. Kerr, 50 La. Ann. 413, 23 South. 384 441
City of North Vernon v. Voegler, 103 Ind. 327, 2 N. E. 821 43G
City of Oklahoma City v. Hill, 6 Okl. 114, 50 Pac. 242 441
City of Ord v. Nash, 50 Neb. 335, 69 N. W. 964 432
City of Orlando v. Pragg, 31 Fla. Ill, 12 South. 368 441, 444
City of Paterson v. Society, 24 N. J. Law, 385 424
City of Pekin v. McMahon, 154 111. 141, 39 N. E. 484 62. 67, 306, 307
v. Newell, 26 111. 320 441, 445
City of Peoria v. Adams, 72 111. App. 662 18, 42, 429
City of Peru v. Gleason, 91 Ind. 566 444, 449
City of Petersburg v. Applegarth's Adm'r, 28 Grat. (Va.) 321 449
City of Philadelphia v. Gilmartin, 71 Pa. St. 140 431
City of Pontiac v. Carter, 32 Mich. 164 451
City of Quincy v. Jones, 76 111. 231 438. 439
City of Reading v. Keppleman, 61 Pa. St. 233 438
City of Richmond v. Long's Adm'rs, 17 Grat. (Va) 375, 379 433, 453
City of St. Paul v. Seitz, 3 Minn. 297 (Gil. 205) 448
City of Salem v. Harvey, 129 111. 344, 21 N. E. 1076; 29 111. App. 483 411
City of Salina v. Trosper, 27 Kan. 545 77
City of South Omaha v. Powell, 50 Neb. 798, 70 N. W. 391 432
City of Springfield v. Le Claire, 49 111. 476 426
City of Sterling v. Schiffmacher, 47 111. App. 141 164
City of Tiffin v. McCormack, 34 Ohio St. 638 168
City of Vicksburg v. McLain, 67 Miss. 4, 6 South. 774 67, 410, 414
City of Virginia v. Plummer, 65 111. App. 419 432
City of Wilmington v. Vandegrift, 1 Marv. 5, 29 Atl. 1047 451
City & S. Ry. Co. v. Moores, 80 Md. 348, 30 Atl. 643 161, 164
Clack v. Supply Co., 72 Mo. App. 506 158, 171
Clapper v. Kells, 78 Hun, 34, 28 N. Y. Supp. 1018 316
Clardy v. Railroad Co., 73 Mo. 576 346
Clark v. Barnwell, 12 How. 272 216
v. Burns, 118 Mass. 275 217, 277
v. Chambers, 3 Q. B. Div. 327 11
v. City of Manchester, 62 N. H. 577 421
v. Foot, 8 Johns. (N. Y.) 421 349, 350
v. Fry, 8 Ohio St. 358 161
v. Geer, 32 C. C. A. 295, 86 Fed. 447 212
v. Hughes, 51 Neb. 780, 71 N. W. 776 148
v. Listen, 54 111. App. 578 94
v. Railroad Co., 69 Fed. 543 86
80 Hun, 320, 30 N. Y. Supp. 126 152
164 Mass. 434, 41 N. E. 666 333
39 Mo. 184 230
64 N. H. 323, 10 Atl. 676 46
91 N. C. 506 .184
486 CASES CITED.
Pace
Clark v. Railroad Co., 109 N. C. 430, 14 S. E. 43 3S
Clarke v. City of Richmond, 83 Va. 355, 5 S. E. 369 4.12
v. Gray, 6 East, 564 2.-.S
v. Needles, 25 Pa. St. 338 279
v. Pennsylvania Co., 132 Ind. 199, 31 N. E. 808 147
v. Railroad Co., 33 Minu. 359, 23 N. W. 536 3.J5
14 N. Y. 570 262, 2(56
Clarkin v. Biwabik-Bessemer Co., 65 Minn. 483, 67 N. W. 1020 50, 306, 307
Glaus v. Steamship Co., 32 C. C. A. 282, 89 Fed. 646 37
Claxton's Adm'r v. Railroad Co., 13 Bush (Ky.) 636 394
Claybaugh v. Railway Co., 56 Mo. App. 630 Ill
Claypool v. McAllister, 20 111. 504 216
Clayton v. City of Henderson (Ky.) 44 S. W. 667 443, 445
v. Hunt, 3 Camp. 27 256
Cleary v. Packing Co., 71 Minn. 150, 73 N. W. 717 82
Cleaveland v. Railroad Co., 42 Vt 449 352, 357
Cleghorn v. Railroad Co., 56 N. Y. 44 76
Cleland v. Thornton, 43 Cal. 437 350
Clemence v. City of Auburn, 66 N. Y. 334 449
Clendaniel v. Tuckerman, 17 Barb. (N. Y.) 184 283
Cleveland v. King, 132 U. S. 295, 10 Sup. Ct. 90 432
v. Railroad Co., 35 Iowa, 220 344
v. Steamboat Co., 68 N. Y. 300 193
89 N. Y. 627 204
125 N. Y. 299, 26 N. E. 327 *. . . 204
Cleveland, C., C. & I. Ry. Co. v. Asbury, 120 Ind. 289, 22 N. E. 140 6
v. Elliott, 28 Ohio St. 340 51, 338
v. Scudder, 40 Ohio St. 173 347
Cleveland, C., C. & St. L. R. Co. v. Adair, 12 Ind. App. 569, 39 N. E.
672, 40 N. E. 822 327
v. Brown, 20 C. C. A. 147, 73 Fed. 970 95
v. Case, 71 111. App. 459 358
v. Doerr, 41 111. App. 530 32
v. Martin (Ind. App.) 39 N. E. 759 92
v. Miller, 149 Ind. 90, 49 N. E. 445 330
v. Newlin, 74 111. App. 638 244
v. Patterson, 69 111. App. 438 266
v. Scantland, 151 Ind. 488, 51 N. E. 1068 359
v. Selsor, 55 111. App. 685 90
v. Smith, 78 111. App. 429 331
v. Tartt, 12 C. a A. 618, 64 Fed. 823 327
v. Ward, 147 Ind. 256, 45 N. E. 325, 46 N. E. 462 96
Cleveland, C. & C. R. Co. v. Bartram, 11 Ohio St. 457 197, 200
v. Crawford, 24 Ohio St. 631 83, 396
v. Keary, 3 Ohio St. 201 142
v. Terry, 8 Ohio St. 570 75, 332, 336
Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1 212
Cleveland & P. R. Co. v. Rowan, 66 Pa. St. 393 405, 406
Cleves v. Willoughby, 7 Hill (N. Y.) 83 315
CASES CITED. 48 /
Page
Cliff v. Railroad Co., L. R. 5 Q. B. 258 332
Clifford v. Cotton Mills, 146 Mass. 47, 15 N. E. 84 312
v. Dam, 81 N. Y. 52 314
Cline v. Railroad Co., 43 La. Ann. 327, 9 South. 122 399
Clore v. Mclntire, 120 Ind. 262, 22 N. E. 128 403
Clowdis v. Irrigation Co., 118 Gal. 315 365
Clyde v. Hubbard, 88 Pa. St. 357, 358 293, 294
v. Railroad Co., 69 Fed. 673 145
Clyne v. Holmes (N. J. Sup.) 39 Atl. 767 316
Coates v. Railway Co., 62 Iowa, 486, 17 N. W. 760 413
61 Mo. 38 352, 360
v. Town of Canaan, 51 Vt. 131 437
Cobb v. Howard, 3 Blatchf. 524, Fed. Cas. No. 2,924 210
Cochran v. Dinsmore, 49 N. Y. 249 219
v. Miller, 13 Iowa, 128 378
v. Railroad Co., 184 Pa. St. 565, 39 Atl. 296 42
Cochrane v. Little, 71 Md. 323, 18 Atl. 698 373
Cockerham v. Nixon, 33 N. C. 269 363, 364
Cockle v. Railway Co., L. R. 5 C. P. 457; L. R. 7 C. P. 321 180
Coffee v. Railroad Co. (Miss.) 25 South. 157 267
Coffin v. Inhabitants, 162 Mass. 192, 38 N. E. 509 437
v. Railroad Co., 64 Barb. (N. Y.) 379 235
v. Town of Xantucket, 5 Cush. (Mass.) 269 452
Cofield v. McCabe, 58 Minn. 218, 59 N. W. 1005 172
Coger v. Packet Co., 37 Iowa, 145 195
Coggs v. Bernard, 2 Ld. Raym. 909, 918 31, 218, 220, 229
1 Smith, Lead. Cas. 317 225
Cogswell v. Railroad Co., 6 Or. 417 75
Cohen v. Express Co., 45 Ga. 148 295
v. Mayor, 113 N. Y. 532, 21 N. E. 700 435, 446
v. Railroad Co., 14 Nev. 376 326
Cole v. City of Nashville, 4 Sneed (Tenn.) 162 449
v. Fisher, 11 Mass. 137 368
v. Goodwin, 19 Wend. (N. Y.) 251 245, 254, 260, 267
v. Railway Co., 105 Mich. 549, 63 N. W. 647 356
71 Wis. 114, 37 N. W. 84 121, 123
v. Trustees, 27 Barb. (N. Y.) 218 449
Colegrove v. Railroad Co., 6 Duer, 382 57
20 N. Y. 492 207
Coleman v. Railroad Co., 84 Ga. 1, 10 S. E. 498 211
25 S. C. 446 149
Coley v. City of Statesville, 121 N: G. 301, 28 S. E. 482 11, 405, 442
Colfax Mountain Fruit Co. v. Southern Pac. Co., 118 Cal. 648, 50 Pac.
775, 40 Lawy. Rep. Ann. 78 292
Colgrove v. Smith, 102 Cal. 220, 36 Pac. 411 164
Collenberg, The, 1 Black, 170 234
Collender v. Dinsmore, 55 N. Y. 200 293
Collett v. Railway Co., 16 Q. B. 984 . 189
'488 CASES CITED.
Page
Collins v. City of Philadelphia, 93 Pa. St. 272 429
v. Crimmins (Super. N. Y.) 31 N. Y. Supp. 860 93
v. Davidson, 19 Fed. 83 405
v. Inhabitants, 172 Mass. 78, 51 N. E. 454 431
v. Mayor, etc., 77 Ga. 745 450
v. Railroad Co., 10 Cush. (Mass.) 506 274
11 Exch. 790 290
5 Hun (X. Y.) 499 360
92 Hun, 563, 36 N. Y. Supp. 942 330, 338
v. State, 3 Ind. App. 542, 30 N. E. 12 383
Collyer v. Railroad Co., 49 N. J. Law, 59, 6 Atl. 437 95
Colonel Ledyard, The, 1 Spr. 530, Fed. Cas. No. 3,027 223, 231
Colorado Coal & Iron Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251 112, 146
Colorado Mortg. & Inv. Co. v. Rees, 21 Colo. Sup. 435/42 Pac. 42 304
Colorado M. Ry. Co. v. Naylon, 17 Colo. 501, 30 Pac. 249 146
Colt v. McMechen, 6 Johns. (N. Y.) 160 218, 225, 227
Colton v. Railroad Co., 67 Pa. St. 211 219
Columbus, C. & I. C. Ry. Co. v. Powell, 40 Ind. 37 194
v. Troesch, 68 111. 545 130
Columbus & I. C. Ry. Co. v. Farrell, 31 Ind. 408 180
Columbus & W. Ry. Co. v. Kennedy, 78 Ga. 646, 3 S. W. 267 218
v. Ludden, 89 Ala. 612, 7 South. 471 286, 287
Colvin v. Peabody, 155 Mass. 104, 29 N. E. 59 156
Combe v. Railroad Co., 31 Law T. (N. S.) 613 223
Comer v. Barfield, 102 Ga. 485, 31 S. E. 89 339
v. Railroad Co., 52 S. C. 36, 29 S. E. 637 266
v. Shaw, 98 Ga. 543, 25 S. E. 733 338
Commercial Bank v. Barksdale, 36 Mo. 563 386
v. Varnum, 49 N. Y. 269 386
Commercial Electric Light & Power Co. v. City of Tacoma (Wash.) 55
Pac. 219 441
Com. v. Blaisdell, 107 Mass. 234 435
v. Capp, 48 Pa. St. 53 436
v. East Boston Ferry, 13 Allen (Mass.) 589 420
v. Haines, 97 Pa. St. 228. 386
v. Lightfoot, 7 B. Mon. (Ky.) 298 384
v. McCoy, 8 Watts (Pa.) 153 382
v. Plaisted, 148 Mass. 375, 19 N. E. 224 443
v. Power, 7 Mete. (Mass.) 596 184, 192, 194
v. Railroad Co., 5 Gray (Mass.) 473 403
107 Mass. 236 397
108 Mass. 7 : 188. 190
112 Mass. 412 159
121 Mass. 36 403
129 Mass. 500 41
V. Railroad Corp., 11 Cush. (Mass.) 512 420
101 Mass. 201 323
v. Thompson, 6 Mass. 134 377, 378
Conant v. Griffin, 48 111. 410 416
CASES CITED. 489
Page
Conflict v. Jersey City, 46 N. J. Law, 157 453
v. Railway Co., 54 N. Y. 500 24, 225, 227, 294
Condon v. Railway Co., 16 Ir. C. L. 415 409
55 Mich. 218, 21 N. W. 321 291
Condran v. Railway Co., 14 C. C. A. 506, 67 Fed. 522 195
Congar v. Railroad Co., 24 Wis. 157 232
Conger v. Railroad Co., 6 Dner (N. Y.) 375 233, 236, 262
Congreve v. Morgan, 18 N. Y. 84 25
v. Smith, 18 N. Y. 79 314
Conkey v. Railway Co., 31 Wis. 619 291
Conklin v. City of Elmira, 11 App. Div. 402, 42 N. Y. Supp. 518 432
Conkling v. Railroad Co. (N. J. Err. & App.) 43 Atl. 606 330, 332
Conley v. City of Portland, 78 Me: 217, 3 Atl. 658 448
Conlon v. City of St. Paul, 70 Minn. 216, 72 N. W. 1073 430
Connecticut Mut. Life Ins. Co. v. Railroad Co., 25 Conn. 265 391
Connelly v. Rist, 20 Misc. Rep. 31, 45 N. Y. Supp. 321 20, 25
v. Woolen Co., 163 Mass. 156, 39 N. E. 787 Ill
Conner v. Railroad Co., .146 Ind. 430, 45 N. E. 662 82
Conners v. Hennessey, 112 Mass. 96 162, 166
v. Railway Co., 71 Iowa, 490, 32 N. W. 465 398
Connerton v. Canal Co., 168 Pa. St. 339, 32 Atl. 416 337
Connolly v. Davidson, 15 Minn. 519 (Gil. 428) 129
v. Ice Co., 114 N. Y. 104, 21 N. E. 101 Go
v. Poillon, 41 Barb. (N. Y.) 366, 41 N. Y. 619 117
v. Railroad Co., 158 N. Y. 675, 52 N. E. 1124 345
v. Warren, 106 Mass. 146 269, 271
Connor v. City of New York, 28 App. Div. 186. 50 N. Y. Supp. 972 415
v. Traction Co., 173 Pa. St. 602, 34 Atl. 238 52
Conolly v. Railroad Co., 4 App. Div. 221, 38 N. Y. Supp. 587 345
Conrad v. Village of Ithaca, 16 N. Y. 158 426
Conroy v. Iron W'orks, 62 Mo. 35 120
Consolidated Coal Co. v. Scheiber, 167 111. 539, 47 N. E. 1052 135
Consolidated Ice-Mach. Co. v. Keifer, 134 111. 481, 25 N. E. 799 399, 419
Consolidated Traction Co. v. Behr, 59 N. J. Law, 477, 37 Atl. 142 84
v. Hone, 59 N. J. Law, 275, 35 Atl. 899 396
60 N. J. Law, 444, 38 Atl. 759 406
v. Scott, 58 N. J. Law, 682, 34 Atl. 1094 66
v. Taborn, 58 N. J. Law, 1, 32 Atl. 685 186
Constable v. Steamship Co., 154 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed.
903 285, 286
Continental Trust Co. v. Railroad Co., 89 Fed. 637 353
Converse v. Transportation Co., 33 Conn. 166 280, 281, 292, 294
Conway v. City of Beaumont, 61 Tex. 10 425
v. Magill, 53 Xeb. 370, 73 N. W. 702 384
v. Railroad Co., 13 Misc. Rep. 53, 34 N. Y. Supp. 113 133
Cook v. City of Milwaukee, 24 Wis. 270 433
v. Gourdin, 2 Nott & McC. (S. C.) 19 222
v. Mfg. Co., 53 Hun, 632, 7 N. Y. Supp. 950 92
v. Navigation Co., 76 Tex. 353, 13 S. W. 475 395
490 CASES CITED.
Page
Cook v. Railroad Co., 10 Hun, 426 '. . 413
34 Minn. 45, 24 X. \V. 311 123
12 Reporter (Ala.) 356 41
97 Wis. 624, 74 N. W. 561 14, 20
Cookson v. Railway Co., 179 Pa. St. 184, 36 AtL 194 32
Coolbroth v. Railroad Co., 77 Me. 165 109
Cooley v. Chosen Freeholders of Essex County, 27 X. J. Law, 415 454
Coombs v. Cordage Co., 102 Mass. 572 21, 106, 107, 119
v. Purrington, 42 Me. 332 37
v. Reg., 26 Can. Sup. Ct 13 200
Cooney v. Palace-Car Co. (Ala.) 25 South. 712 270
Cooper, Ex parte, 11 Ch. Div. 68 298
y. Railroad Co., 44 Iowa, 134 102
66 Mich. 261, 33 N. W. 306 410, 433
24 W. Va, 37 90
Cope v. Cordova, 1 Rawle (Pa.) 203 282
Corbin v. American Mills, 27 Conn. 274 157
Corcoran v. Railroad Co., 6 C. C. A. 231, 56 Fed. 1014 155
133 Mass. 507 398
Cordell v. Railroad Co., 64 N. Y. 535 328
75 N. Y. 330 87
Cork v. Blossom, 162 Mass. 330, 38 N. E. 495 303
Corneilson v. Railway Co., 50 Minn. 23, 52 N. W. 224 52
Cornwall v. Mills, 44 N. Y. Super. Ct. 45 413
Corry v. Tate, 48 S. C. 548, 26 S. E. 794 383
Corwin v. Railroad Co., 13 N. Y. 42 340, 341, 345-347
Cosgrove v. Pitman, 103 Cal. 274, 37 Pac. 232 100
v. Railroad Co., 13 Hun (N. Y.) 329 330
Costa Coal Mines R. Co. v. Moss, 23 Cal. 323 216
Costello v. Judson, 21 Hun (N. Y.) 396 119
v. Railroad Co., 65 Barb. (N. Y.) 92 336
Couch v. Railroad Co., 22 S. C. 557 149
Coughtry v. Woolen Co., 56 N. Y. 124 129, 304
Cougle v. McKee, 151 Pa. St. 602, 25 AtL 115 94
Couls.on v. Leonard, 77 Fed. 538 145
Coulter v. Express Co., 56 N. Y. 585 41
County Com'rs of Anne Arundel Co. v. Duckett, 20 Md. 468 456
County Com'rs of Prince George Co. v. Burgess, 61 Md. 29 84
Coupe v. Platt, 172 Mass. 458, 52 N. E. 526 314
Coupland v. Hardingharn, 3 Camp. 398 311
Courtney v. Baker, 60 N. Y. 1 173
Covington Co. v. Kinney, 45 Ala. 176 456
Covington St. R. Co. v. Packer, 9 Bush (Ky.) 455 400
Coward v. Railroad Co., 16 Lea (Term.) 225 239, 249, 270
Cox v. Brackett, 41 111. 222 85
v. Burbidge, 13 C. B. (N. S.) 430 363
v. Foscue, 37 Ala. 505 224
v. Leech, 1 C. B. (N. S.) 617 371
V. Peterson, 30 Ala. 608 227
CASES CITED. 401
* Paga
Cox v. Railroad Co., 3 Post. & F. 77 223
170 Mass. 129, 49 N. E. 97 239, 250
123 N. C. 604, 31 S. E. 848 85
v. Road Co., 33 Barb. (N. Y.) 414 75
Coxon v. Railway Co., 5 Hurl. & N. 274 295
Coyle v. Iron (N. J. Sup.) 41 Atl. 680 96
v. Pierrepont, 33 Hun (N. Y.) 311 128
37 Hun (N. Y.) 379 157
Crabell v. Coal Co., 68 Iowa, 751, 28 N. W. 56 152
Craft v. Parker, Webb & Co., 96 Mich. 245, 55 N. W. 812 370
Crafter Y. Railway Co., L. R. 1 C. P. 300 435
Cragin v. Railroad Co., 51 N. Y. 61 234, 245, 253, 262, 266
Craig v. Ohildress, Peck (Tenn.) 270 221
v. City of Charleston, 78 111. App. 312 442
Craker v. Railroad Co., 36 Wis. 657 170
Crandall v. Transportation Co., 11 Biss. 516, 16 Fed. 75 27, 37
Craven v. Smith, 89 Wis. 119, 61 N. W. 317 109, 118
Graver v. Christian, 36 Minn. 413, 31 N. W. 457 151
Crawford v. Clark, 15 111. 161 286
v. Railroad Ass'n, 51 Miss. 222 294
v. Railroad Co., 26 Ohio St. 580 201
Grawshay v. Eades, 1 Barn. & O. 182 298
Craycroft v. Railroad Co., 18 Mo. App. 487 239
Creed v. Hartmann, 29 N. Y. 591 167
v. Kendall, 156 Mass. 291, 31 N. E. 6 72
Cremer v. Town of Portland, 36 Wis. 92 37
Crenshaw v. Ullman, 113 Mo. 633, 20 S. W. 1077 161, 163, 165
Crescent Tp. v. Anderson, 114 Pa. St. 643, 8 Atl. 379 58
Cresson v. Railroad Co., 11 Phila. (Pa.) 597 201
Crew v. Railway Co., 20 Fed. 87 97
Crittendon v. Wilson, 5 Cow. (N. Y.) 165 318
Crocker v. Railroad Co., 24 Conn. 249 169
Crockett v. Calvert, 8 Ind. 127 157
Croff v. Cresse, 7 Okl. 408, 54 Pac. 558 366
Croft v. Alison, 4 Barn. & Aid. 590 168
v. Steamship Co. (Wash.) 55 Pac. 42 209
Cronkite v. Wells, 32 N. Y. 247 280
Groom v. Railway Co., 52 Minn. 296, 53 N. W. 1128 206
Crosbie v. Murphy, 8 Ir. C. L. 301 373
Crosby v. Fitch, 12 Conn. 410 216, 224, 236
V. Hungerford, 59 Iowa, 712, 12 N. W. 582 382
V. Railroad Co., 88 Hun, 196, 34 N. Y. Supp. 714 337
69 Me. 418 198
Cross v. Guthery, 2 Root (Conn.) 90 391
v. Railway Co., 56 Mo. App. 664 193
Crossett v. City of Janesville, 28 Wis. 420 449
Crouch v. Railway Co., 14 C. B. 255, 284 216, 231
21 S. C. 495 84
Crowell Y. Thomas, 18 App. Div. 520, 46 N. Y. Supp. 137 133
492 CASES CITI:D.
Page
Crowhurst v. Board, 18 Alb. Law J. 514 '. . . 310
4 Exch. Div. 5 370
Crowty v. Stewart, 95 Wis. 490, 70 N. W. 558 379
Crystal Palace, The, v. Vanderpool, 16 B. Mon. (Ky.) 302 217, 277
Cuddy v. Horn, 46 Mich. 596, 10 N. W. 32 57, 207
Cuff v. Railroad Co., 35 N. J. Law, 17 1U1, 102, 166-
Culbertson v. Railroad Co., 88 Wis. 567, 60 N. W. 998 43
Culverson v. City of Maryville, 67 Mo. App. 343 434
Cumberland Val. R. Co. v. Myers, 55 Pa. St. 288 189'
Cunningham v. Los Angeles Ry. Co., 115 Cal. 561, 47 Pac. 452 100
v. Lyness, 22 Wis. 236 36, 86-
v. Railway Co., 115 Cal. 561, 47 Pac. 452 87
51 Tex. 503 129-
Curley v. Harris, 11 Allen (Mass.) 112, 121 97, 129
v. Hoff (N. J. Err. & App.) 42 Atl. 731 93
Curran v. City of Boston, 151 Mass. 505, 24 N. E. 781 425, 426
v. Mfg. Co., 130 Mass. 374 119-
Currier v. Association, 135 Mass. 414 304
v. Henderson, 85 Hun, 300, 32 N. Y. Supp. 953 157
v. Inhabitants of Lowell, 16 Pick. (Mass.) 170 25
Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421 161, 163
v. Mills, 5 Car. & P. 489 362, 365-
v. Railroad Co., 49 Barb. (N. Y.) 148 83
94 Ky. 573, 23 S. W. 363 201
18 N. Y. 534, 538 204
74 N. Y. 116 254, 274
Curtlss v. Railroad Co., 20 Barb. (N. Y.) 282 206
Cushing v. City of Boston, 128 Mass. 330 436
v. Inhabitants of Bedford, 125 Mass. 526 436, 444
Cusick v. Adams, 115 N. Y. 55, 21 N. E. 673 49, 50
Cutts v. Brainerd, 42 Vt. 566 292
Cuyler v. Decker, 20 Hun, 173 41
Czezewzka v. Railway Co., 121 Mo. 201, 25 S. W. 911 38
D
Daggett v. Shaw, 3 Mo. 264 218-
Dale v. Railway Co., 63 Mo. 455 118
Daley v. Railroad Co., 26 Conn. 591 36, 62
Dallas & W. R. Co. v. Spicker, 61 Tex. 427 84, 407
Dalton v. Railway Co., 4 C. B. (N. S.) 296, 4 Jur. (N. S.) 711, 27 Law J. C.
P. 227 4ia
v. Receivers, 4 Hughes, 180, Fed. Cas. No. 3,550 159
Daly v. City & Town of New Haven, 69 Conn. 644, 38 Atl. 397 444, 450-
v. Hinz, 113 Cal. 366, 45 Pac. 693 85
Dalyell v. Tyrer, El., Bl. & El. 899 157
28 Law. J. Q. B. 52 189
Dana v. Railroad Co., 50 How. Prac. (X. Y.) 428 291
92 N. Y. 639 . . 102
CASES CITED. 493
Page
Daniels v. Ballantine, 23 Ohio St 532 24
v. Ciegg, 28 Mich. 32 31
v. Railroad Co., 154 Mass. 349, 28 N. E. 283 307
Daniel's Adin'r v. Railway Co., 36 W. Ya. 397, 15 S. E. 162 150
Danville, L. & N. Turnpike Co. v. Stewart, 2 Mete. (Ky.) 119 57, 59
Darling v. Baugor, 68 Me. 108 429
v. Railroad Co., 121 Mass. 118 343
v. Railroad Corp., 11 Allen (Mass.) 295 294
Darrigan v. Railroad Co., 52 Conn. 285 146
Dartmouth College v. Woodward, 4 Wheat. 518 424
Dascomb v. Railroad Co., 27 Barb. (N. Y.) 221 338, 339
Davenport v. Ruckman, 16 Abb. Prac. (N. Y.) 341 336
10 Bosw. (N. Y.) 20, 37 313
37 N. Y. 568 75, 313, 336
Davidson v. City of New York, 24 Misc. Rep. 560, 54 N. Y. Supp. 51 441
v. Cornell, 132 N. Y. 228, 30 N. E. 573 122
T. Graham, 2 Ohio St. 131. '. 212
v. Gwynne, 12 East, 381 2:r>
v. Nichols, 11 Allen (Mass.) 514 19
v. Railroad Co., 171 Pa. St. 522, 33 Atl. 86 330
Davies v. Mann, 10 Mees. & W. 546 35, 39, 338
Davis v. Ferris, 29 App. Div. 623, 53 N. Y. Supp. 571 50, 305
v. Garrett, 6 Bing. 716 24, 27, 224
v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350 59, 61, 71, 396, 414
v. Houghtellin, 33 Neb. 582, 50 N. W. 765 173
v. Inhabitants of Dudley, 4 Allen (Mass.) 557 23
v. Justice, 31 Ohio St. 359 '. 400
v. Nichols, 54 Ark. 358, 15 S. W. 880 402
v. Railroad Co., 53 Ark. 117, 13 S. W. 801 400
105 Cal. 131, 38 Pac. 647 42
10 How. Prac. (N. Y.) 330 269
22 III 278 269-271
121 Mass. 134 209
20 Mich. 105 100
53 Mo. 317 193
89 Mo. 340, 1 S. W. 327 219, 222, 22(5
47 N. Y. 400 330
55 Vt. 84 150
66 Vt. 290, 29 Atl. 313 223, 256
58 Wis. 646, 17 N. W. 406 327
v. Standish, 26 Hun (N. Y.) 608 400
Dawley v. Car Co., 169 Mass. 315, 47 N. E. 1024 275
Dav, son v. Railroad Co., L. R. 8 Exch. 8 341
76 Mo. 514 251
Day v. Owen, 5 Mich. 520 191, 193, 194, 196
v. Ridley, 16 Vt. 48 220
v. Woodworth, 13 How. 363 7
Dayharsh v. Railroad Co., 103 Mo. 570, 15 S. W. 554 .' 148
Dealey v. Muller, 149 Mass. 432, 21 N. E. 763 66
494 CASES CITED.
Page
Bean v. Railroad Co., 129 Pa. St 514, 18 Atl. 718 58
v. Vaccaro, 2 Head (Term.) 488 28G
Dearborn v. Dearborn, 15 Mass. 316 375
De Camp v. Railroad Co., 12 Iowa, 348 169
Decker v. Railroad Co., 3 Okl. 553, 41 Pac. 610 184
181 Pa. St. 465, 37 Atl. 570 330
Deeds v. Railroad Co., 69 Iowa, 164, 28 N. W. 488 38
Defiance Water Co. v. Olinger, 54 Ohio St 532, 44 N. E. 238 304
De Forest v. Jewett, 88 N. Y. 264 116
Degnan v. Ransom, 83 Hun, 267, 31 N. Y. Supp. 966 377
De Graff v. Railroad Co., 76 N. Y. 125 118
De Grau v. Wilson, 17 Fed. 698 285
De loia v. Railroad Co., 37 App. Div. 455, 56 N. Y. Supp. 22 323
Deisen v. Railway Co., 43 Minn. 454, 45 N. W. 864 413
Deisenrieter v. Malting Co., 97 Wis. 279, 72 N. W. 735 10, 87
Delaney v. Railroad Co., 33 Wis. 67 327
Delaware, The, 14 Wall. 579 216
Delaware, L. & W. R. Co. v. Jones, 128 Pa. St. 308, 18 Atl. 330 408, 409
v. Reich (N. J. Err. & App.) 40 Atl. 682 307
v. Salmon, 39 N. J. Law, 299, 300, 309 19, 26, 27, 352
v. Toffey, 38 N. J. Law, 525 84
Delger v. City of St. Paul, 14 Fed. 567 432
Dells v. Stollenwerk, 78 Wis. 339, 47 N. W. 431 174
Delta Electric Co. v. Whitcamp, 58 m. App. 141 343
Del Valle v. The Richmond, 27 La, Ann. 90 277
Demarest, In re, 86 Fed. 803 306
Demarest v. Little, 47 N. J. Law, 28 411, 412, 414
Deming v. Railroad Co., 48 N. H. 455 237
v. Storage Co., 90 Tenn. 306, 17 S. W. 89 24
De Mott v. Laraway, 14 Wend. (N. Y.) 225 216, 281
Dempsey v. Chambers, 154 Mass. 330, 28 N. E. 279 159
Denman v. Railroad Co., 26 Minn. 357, 4 N. W. 605 78
Dennick v. Railroad Co., 103 U. S. 11 401
Denning v. Gould, 157 Mass. 563, 32 N. E. 862 94
Dennison v. The Wataga, 1 Phila. (Pa.) 468 210
Denny v. Railroad Co., 13 Gray (Mass.) 481 24, 221, 225
Densmore Commission Co. v. Duluth, S. S. & A. Ry. Co., 101 Wis. 563, 77
N. W. 904 223
Denver, S. P. & P. R. Co. v. Discoll, 12 Colo. 520, 21 Pac. 708 146
v. Woodward, 4 Colo. 1 402
Denver Tramway Co. v. O'Brien, 8 Colo. App. 74, 44 Pac. 766 14(3
v. Reed, 4 Colo. App. 500, 36 Pac. 557 179, 184
Denver, T. & Ft. W. R. Co. v. Smock, 23 Colo. 456, 48 Pac. 681 86
Denver, T. & G. R. Co. v. Robbins, 2 Colo. App. 313, 30 Pac. 261 16
Denver & B. P. Rapid-Transit Co. v. Dwyer, 20 Colo. 132, 36 Pac. 1106. . 38
Denver & R. G. R. Co. v. Andrews, 11 Colo. App. 204, 53 Pac. 518 204
v. Gustafson, 21 Colo. 393, 41 Pac. 505 155, 334
v. Nye, 9 "Colo. App. 94, 47 Pac. 654 343
v. Ryan, 17 Colo. 98, 28 Pac. 79 32
CASES CITED. 495
Page
Denver & R. G. R. Co. v. Sipes (Colo. Sup.) 55 Pac. 1093 90, 151
De Palacios v. Railway Co. (Tex. Civ. App.) 45 S. W. 612 191
Deppe v. Railroad Co., 36 Iowa, 52 147
Derby's Adm'r v. Railroad Co. (Ky.) 4 S. W. 303 7
Derk v. Railway Co., 164 Pa. St. 243, 30 Atl. 231 337
Derosia v. Railroad Co., 18 Minn. 133 (Gil. 119) 287
Derwort v. Loomer, 21 Conn. 245 203
Detroit & B. C. R. Co. v. McKenzie, 43 Mich. 609, 5 N. W. 1031 294
Detzur v. Brewing Co. (Mich.) 77 N. W. 948 23, 30a
Devato v. Barrels of Plumbago, 20 Fed. 510 284, 285
Devitt v. Railroad Co., 50 Mo. 302 95
Devlin v. Smith, 89 N. Y. 470 12&
Deweese v. Mining Co., 128 Mo. 423, 31 S. W. 110 105
Dewey v. City of Detroit, 15 Mich. 307 438, 451
v. Leonard, 14 Minn. 153 (Gil. 120) 349, 350
v. Railway Co., 97 Mich. 329, 56 N. W. 756 108, 137
Dewire v. Bailey, 131 Mass. 169 51
Dexter v. Railroad Co., 42 N. Y. 326 269, 270, 274
Dibble v. Brown, 12 Ga. 216, 217, 225, 226 216, 268, 269, 271, 272
Dice v. Locks Co., 8 Or. 60 179, 208
Dicken v. Coal Co., 41 W. Va. 511, 23 S. E. 582 49, 71
Dickens v. Railroad Co., 1 Abb. Dec. 504 411
Dickius v. Railroad Co., 23 N. Y. 158 403, 404
Dickinson v. Boyle, 17 Pick. (Mass.) 78 21, 24
Dkkson v. Railway Co., 71 Mo. 575 314
v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1 171
Dietrich v. Railroad Co., 71 Pa. St. 432 200
Dillard v. Railroad Co., 2 Lea (Tenn.) 288 252
Dimmey v. Railway Co., 27 W. Va. 32 401, 40&
Diniuny v. Railroad Co., 49 N. Y. 546 289
Disano v. Brick Co. (R. I.) 40 Atl. 7 91
District of Columbia v. Wilcox, 4 App. D. C. 90 417
Ditchett v. Railroad Co., 5 Hun (N. Y.) 165 77
Dixon v. Bell, 5 Maule & S. 198 368
v. Dunham, 14 111. 324 284, 286
v. Navigation Co., 15 .Ont. App. 647, 39 Am. & Eng. R. Gas. 425 273
v. Railroad Co., 109 Mo. 413, 19 S. W. 412 130
v. Yates, 5 Barn. & Adol. 340 297
Dlauhi v. Railway Co., 139 Mo. 291, 40 S. W. 890 339
Dobbins v. Railway Co., 91 Tex. 60, 41 S. W. 62 31, 307
Dodge v. Granger, 17 R. I. 664, 24 Atl. 100 443
v. Steamship Co., 148 Mass. 207, 19 N. E. 373 178
Doggett v. Railroad Co.. 78 N. C. 305 51
Doherty v. Inhabitants of Braintree, 148 Mass. 495, 20 N. E. 106 431
v. McLean, 171 Mass. 399, 50 N. E. 938 50, 304
Dolan v. Canal Co., 71 N. Y. 285 334
v. City of Milwaukee, 89 Wis. 497, 61 N. W. 564 437
Dolby v. Hearn, 1 Marv. 153, 37 Atl. 45 350
Dole v. Insurance Co., 51 Me. 465 229
496 CASES CITED.
Page
Donahoe v. City of Kansas City, 136 Mo. 657, 38 S. W. 571 148, 430, 432
Donaldson v. Haldane, 7 Clark & F. 762 374
1 v. Railroad Co., 18 Iowa, 280 405, 413
21 Minn. 293 82, 338
Donley v. Dougherty, 174 111. 582, 51 N. E. 714 120
Donnelly v. Bridge Co., 117 Gal. 417, 49 Pac. 559 146
v. Tripp, 12 R. I. 97 441, 444
Donovan v. Oil Co., 155 N. Y. 112, 49 N. E. 678 248
v. Railway Co., 65 Conn. 201, 32 Atl. 350 177
v. Transit Co., 102 Cal. 245, 36 Pac. 516, 517 161, 164
Dooner v. Canal Co., 164 Pa. St. 17, 30 Atl. 269 96
Doran v. Ferry Co., 3 Lans. (N. Y.) 105 194
v. Railway Co., 73 Iowa, 115, 34 N. W. 619 343
Dorman v. Ames, 12 Minn. 451 (Gil. 347) 313
v. Railroad Co. (City Ct. Brook.) 5 N. Y. Supp. 769 66
Dorr v. Navigation Co., 11 N. Y. 485 245
4 Sandf. (N. Y.) 136 241, 254
Dorrance's Adm'rs v. Com., 13 Pa. St. 160 381, 384
Dorsey v. Construction Co., 42 Wis. 583 114
Doss v. Railroad Co., 59 Mo. 27 211
Doty v. Village of Port Jervis, 23 Misc. Rep. 313, 52 N. Y. Supp. 57 442
Dougherty v. Steel Co., 88 Wis. 343, 60 N. W. 274 Ill, 122
Doughty v. Log-Driving Co., 76 Me. 143 133, 148
Douglas v. Railway Co., 100 Wis. 405, 76 N. W. 356 339
Douglass v. Railway Co., 91 Iowa, 94, 58 N. W. 1070 202
53 Mo. 473 231
v. Stephens, 18 Mo. 362 : 54, 173
Doulon v. City of Clinton, 33 Iowa, 397 438
Doupe v. Genin, 45 N. Y. 119 315
Dow v. Beidelman, 125 U. S. 680, 8 Sup. Ct. 1028 201
Dowd v. Railroad Co., 162 Mass. 185, 38 N. E. 440 138
84 Wis. 105, 54 N. W. 24 211
Dowell v. Navigation Co., 5 El. & Bl. 195 35, 37
v. Railroad Co., 62 Iowa, 629, 17 N. W. 901 109
Dowling v. Nuebling, 97 Wis. 350, 72 N. W. 871 316
Downes v. Bridge Co. (Sup.) 58 N. Y. Supp. 628 43
Doyle v. Kiser, 6 Ind. 242 270
v. Railroad Co., 27 C. C. A. 264, 82 Fed. 869 84
162 Mass. 66, 37 N. E. 770 190
166 Mass. 492, 44 N. E. 611 212
42 Minn. 79, 43 N. W. 787 108, 306, 307
Drake v. City of Lowell, 13 Mete. (Mass.) 292 436
v. Railroad Co., 80 Hun, 490, 30 N. Y. Supp. 671 103
Drax v. Scroope, 2 Barn. & Adol. 581 373
Drennan v. Grady, 167 Mass. 415, 45 N. E. 741 309
v. Smith, 115 Ala. 396, 22 South. 442 161
Drew v. Peer, 93 Pa. St. 234 171
v. Railroad Co., 51 Cal. 425 200
CASES CITED. 497
Page
Drisooll v. City of Fall River, 163 Mass. 105, 39 X. E. 1003 99, 100, 437
v. ^caiilon, 1G5 Mass. 348, 43 X. E. 100 158
D. R. Martin, Tlie, 11 Blatcbf. 233, Fed. Cas. Xos. 1,030, 4,092 184, 192, 194
Dnimuiond v. Southern Pac. Co., 7 Utah, 118, 25 Pac. 733 199
Drury v. Butler, 171 Mass. 171, 50 X. E. 527 373
v. Inhabitants of Worcester, 21 Pick. (Mass.) 44 435
Dryburg v. Milling Co., 55 Pac. 367 150
Dryden v. Railway Co., 60 Me. 512 199, 200
Drymala v. Thompson, 26 Minn. 40, 1 N. W. 255 91
Dublin Cotton-Oil Co. v. Jarrard (.Tex. Civ. App.) 40 S. W. 531 49
Dubuque Wood & Coal Ass'n v. City and County of Dubuque, 30 Iowa, 176 24
Dudley v. Smith, 1 Camp. 167 179
Duff v. Budd, 3 Brod. & B. 177 283
Duffy v. Thompson, 4 E. D. Smith (N. Y.) 178 269
Dufour v. Railroad Co., 67 Cal. 319, 7 Pac. 769 211
Dugal v. City of Chippewa Falls (Wis.) 77 X. W. 878 116
Dugan v. Bridge Co., 27 Pa. St. 303 ..320
Duggan v. Railroad Co., 159 Pa. St. 248, 28 Atl. 182 174
Duggins v. Watson, 15 Ark. 118 58
Duke v. Mayor, etc., 20 Ga. 635 449
Du Laurans v. Railroad Co., 15 Minn. 49 (Gil. 29) r 196
Dunham v. Rackliff, 71 Me. 345 100
Dunham Towing & Wrecking Co. v. Dandelin, 143 111. 409, 32 X. E. 258. .40, 41
Dunhene's Adni'x v. Trust Co., 1 Disn. (Ohio) 257 403
Dunlap v. Steamboat Co., 98 Mass. 371 271, 273
Dunn v. McXamee, 59 X. J. Law, 498, 37 Atl. 61 119
v. Railroad Co., 58 Me. 187 187, 188, 202, 203
v. Society, 46 Ohio St. 93, 18 X. E. 496 455
v. Steamboat Co., 58 Hun, 461, 12 X. Y. Supp. 406 275
Dunson v. Railroad Co., 3 Lans. (X. Y.) 265 225
Duntley v. Railroad Co., 66 N. H. 263, 20 Atl. 327 248
Durgin v. Express Co., 66 X. H. 277, 20 Atl. 328 247
Durgy Cement & Umber Co. v. O'Brien, 123 Mass. 12 298
Durham v. Musselrnan, 2 Blackf. (Ind.) 96 309
Durkin v. Sharp, 88 X. Y. 225 91
Dush v. Fitzhugh, 2 Lea (Tenn.) 307 42, 80
Dutton v. Gerrish, 9 Cush. (Mass.) 89 315
Duval v. Hunt, 34 Fla. 85, 15 South. 876 152
Duvall v. Railroad Co., 105 Mich. 386, 63 N. W. 437 337
Duvenick v. Railroad Co., 57 Mo. App. 550 253
Dwindle v. Railroad Co., 120 X. Y. 117, 24 X. E. 319 155
Dwyer v. Express Co., 82 W T is. 307, 52 X. W. 304 133, 151
v. Railway Co., 84 Iowa, 479, 51 X. W. 244 405
Dyer v. Munday (1895) 1 Q. B. 742, 14 Reports, 306 167
v. Railway Co., 71 X. Y. 228 41, 59, 325
Dyke v. Railway Co., 45 N. Y. 113 254
BAR.XEG. 32
498 CASES CITED.
E
Page
Eads v. Railway Co., 43 Mo. App. 536 175
Eagle v. White, 6 Whart. (Pa.) 505 282
Eagle Const. Co. v. Railroad Co., 71 Mo. App. 626 158
Eames v. Railroad Co., 98 Mass. 560 341, 342
Earhart v. Youngblood, 27 Pa. St. 331 365
Earing v. Lansingh, 7 Wend. (N. Y.) 185. 31
Earl v. Van Alstine, 8 Barb. (N. Y.) 630 361, 362
Earle v. Hall, 2 Mete. (Mass.) 353 300
Earnest v. Express Co., 1 Woods, 573, Fed. Cas. No. 4,248 230
Earp v. Faulkner, 34 Law T. (N. S.) 284 366
Eason v. Railway Co., 65 Tex. 577 129
Easterly v. Incorporated Town of Irwin, 99 Iowa, 694, 68 N. W. 919 444
East India Co. v. Pullen, 2 Strange, 690 219
Eastman v. Clackamas Co., 32 Fed. 24 456
v. Judkins, 59 N. H. 576 385
v. Mfg. Co., 44 N. H. 143 320
v. Meredith, 36 N. H. 284 450. 454
Bast Saginaw City Ry. Co. v. Bonn, 27 Mich. 503 67, 73
East St Louis Connecting Ry. Co. v. O'Hara, 49 111. App. 282; 150 111. 580,
37 N. E. 917 6
v. Reames, 173 111. 582, 51 N. E. 68 158
East Tennessee, V. & G. R. Co. v. Fain, 12 Lea, 35 80
v. Hall, 90 Ga. 17, 16 S. E. 91 18
v. Hesters, 90 Ga. 11, 15 S. E. 828 18
v. Hunt, 15 Lea (Tenn.) 261 288
v. Johnston, 75 Ala. 596 231, 23S
v. Kane, 92 Ga. 187, 18 S. E. 18 155
v. Lockhart, 79 Ala. 315 180
v. Selcer, 7 Lea (Tenn.) 557 344
v. Smith, 89 Tenn. 114, 14 S. W. 1077 149
Bast Tennessee & G. R. Co. v. Montgomery, 44 Ga. 278 293
v. Nelson, 1 Cold. (Tenn.) 272 235, 295
v. St. John, 5 Sneed (Tenn.) 524 76
v. Whittle, 27 Ga. 535 217
East Tennessee & V. R. Co. v. Rogers, 6 Heisk. (Tenn.) 143 292. 293, 29.1
East Tennessee & W. N. C. R. Co. v. Collins, 85 Tenn. 227, 1 S. W. 883. .. 149
Eastwood v. Mining Co., 86 Hun, 91, 34 N. Y. Supp. 196 102
Eaton v. Cripps, 94 Iowa, 176, 62 N. W. 687 39
V. Railroad Co., 11 Allen (Mass.) 500, 505 19, 25. 26, 54, 60, 206
59 Me. 520, 532, 534 161
129 Mass. 364 325
57 N. Y. 382 187, 191
v. Winnie, 20 Mich. 157 366
Eck v. Hocker, 75 111. App. 641 362
Eckert v. Transfer Co., 2 Mo. App. 36 168, 169
Eckles v. Railway Co., 72 Mo. App. 296 293
Eddy, The, 5 Wall. 481 285
CASES CITED 499
Page
Eddy v. Harris, 78 Tex. 661, 15 S. W. 107 210
v. Lafayette, 163 U. S. 456, 16 Sup. Ct. 1082 355
Eden v. Railroad Co., 14 B. Mon. (Ky.) 204 391
Edgar v. Castello, 14 S. C. 20 401
Edgerly v. Railroad Co. (N. H.) 36 Atl. 558 183
Edgerton v. O'Neil, 4 Kan. App. 73, 46 Pac. 206 80
Edison v. Railway Co. (Miss.) 23 South. 369 185
Edmondson v. Railway Co., 49 S. W. 200, 448 147
Kclsall v. Transportation Co., 50 N. Y. 661 253
Edward Hines Lumber Co. v. Ligas, 68 111. App. 523 128
172 111. 315. 50 N. E. 225 90
Edwards v. Bonner, 12 Tex. Civ. App. 236, 33 S. W. 761 357
v. Jones, 67 How. Prac. 177 156
v. Railway Co., L. R. 5 C. P. 445 173
81 Mich. 364, 45 N. W. 827 199
98 N. Y. 245 305
v. Sherratt, 1 East, 604 231
Efron v. Car Co., 59 Mo. App. 641 278
Egan v. Railroad Co., 12 App. Div. 556, 42 N. Y. Supp. 188 133
E. H. Fittler, The, 1 Low, 114, Fed. Cas. No. 4,311 284, 285
Ehnicke v. Porter, 45 Minn. 338, 47 N. W. 1066 120
E. H. Pray, The, 27 Fed. 474 298
Ehrgott v. Mayor, 96 N. Y. 264 14, 54
Ehrmann v. Railroad Co., 23 App. Div. 21, 48 N. Y. Supp. 379 64
Ehrsam, In re, 37 App. Div. 272, 55 N. Y. Supp. 942 438
Eichel v. Senhenn, 2 Ind. App. 208, 28 N. E. 193 40
Eichengreen v. Railroad Co., 96 Tenn. 229, 34 S. W. 219 159, 173
Eilert v. Railroad Co., 48 Wis. 606, 4 N. W. 769 326
Eingartner v. Steel Co., 94 Wis. 70, 68 N. W. 664 151
Eisenberg v. Railway Co., 33 Mo. App. 85 50
Elder v. Coal Co., 157 Pa. St. 490, 27 Atl. 545, 33 Wkly. Notes Cas. 333 19
Elkington v. Holland, 9 Mees. & W. 659 373, 374
Elkins v. Railroad Co., 115 Mass. 190 336
Ell v. Railroad Co., 1 N. D. 336, 48 N. W. 222 133, 149
Ellet v. Railway Co., 76 Mo. 518 86
Elliott v. Aiken, 45 N. H. 30 315
v. Carlson, 54 111. App. 470 49, 306, 307
v. City of Philadelphia, 75 Pa. St. 347 443, 450
v. Concord, 27 N. H. 204 26
v. Pray, 10 Allen (Mass.) 378 316
v. Railroad Co.. 53 Hue, 78, 6 N. Y. Supp. 363 198
v. Rossell, 10 Johns. (N. Y.) 1 216, 222
Ellis v. City of Lewiston, 89 Me. 60, 35 Atl. 1016 432, 434
v. Gas Consumers' Co., 23 Law J. Q. B. 42, 2 El. & Bl. 767 163
V. Railroad Co., 2 Hurl. & N. 424 35
2 Ired. (N. C.) 138 353
24 N. C. 138 357
Ellsworth v. Ellingson, 96 Iowa, 154, 64 N. W. 774 350
v. Railway Co. (Iowa) 63 N. W. 584 193
500 CASES CITED.
Page
Elmer v. Locke, 135 Mass. 575 151
Elinore v. Railroad Co., 23 Conn. 457 ". 292, 294
v. Sands, 54 N. Y. 512 198-
Ely v. City of Rochester, 26 Barb. (N. Y.) 133 320
v. Railroad Co., 88 Hun, 323, 34 N. Y. Supp. 739 102
v. Steamboat Co., 53 Barb. (N. Y.) 207 2Stt
Embry v. Railroad Co. (Ky.) 36 S. W. 1123 51
Emery v. City of Lowell, 104 Mass. 13 430, 431
v. Exposition, 56 Minn. 460, 57 N. W. 1132 50
Emiliusen v. Railroad Co., 30 App. Div. 203, 51 N. Y. Supp. 606 217
Emmerson v. Fay, 94 Va. 60, 26 S. E. 386 161
Emory v. Addis, 71 111. 273 400
Empire Transp. Co. v. Mining Co., 63 Pa. St. 14 212
v. Wallace, 68 Pa. St. 302 234
Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052 166-
England v. Railroad Co., 153 Mass. 490, 27 N. E. 1 180
English v. Canal Co., 66 N. Y. 454 186
Ennis v. Myers, 29 App. Div. 382, 51 N. Y. Supp. 550 31
Entwhistle v. Feighner, 60 Mo. 214 41
Erb v. Morasch (Kan. App.) 54 Pac. 323 416
Erdman v. Steel Co., 95 Wis. 6, 69 N. W. 993 121
Erickson v. Railroad Co., 41 Minn. 500, 43 N. W. 332 103
Erie City v. Schwingle, 22 Pa. St. 384 42ft
Erie Ry. Co. v. Wilcox, 84 111. 239 232, 238, 244, 295
Erie School Dist. v. Fuess, 98 Pa. St. 600 447
Ernst v. Railroad Co., 35 N. Y. 9 359
39 X. Y. 61 332
Evans v. Railroad Co., Ill Mass. 142 234, 262, 266
11 Mo. App. 463 200
Evansich v. Railway Co., 57 Tex. 126 69
Evanston v. Gunn, 99 U. S. 660 435
Evansville & C. R. Co. v. Duncan, 28 Ind. 441 193
v. Hiatt, 17 Ind. 102 85
v. Lowdermilk, 15 Ind. 320 330
v. Wolf, 59 Ind. 89 66
Evansville & I. R. Co. v. Gilmore, 1 Ind. App. 468, 27 N. E. 992 185
Evansville & R. R. Co. v. Barnes, 137 Ind. 306, 36 N. E. 1092 176
v. Maddux, 134 Ind. 571, 33 N. E. 345 171
Evansville & T. H. R. Co. v. Keith, 8 Ind. App. 57, 35 N. E. 296 280
Evarts v. Railroad Co., 56 Minn. 141, 57 N. W. 459 38
Everett v. Express Co., 46 Ga. 303 231
v. Flume Co., 23 Cal. 225 319
Ewald v. Railway Co., 70 Wis. 420, 36 N. W. 12 171
Ewan v. Lippincott, 47 N. J. Law, 192 128, 129. 148
Ewart v. Street, 2 Bailey (S. C.) 157 226, 228
Ewell v. Railway Co., 29 Fed. 57 420, 421
Ewen v. Railway Co., 38 Wis. 613 410, 416
Ewing v. Goode, 78 Fed. 442 376, 379
Express Co. v. Kountze, 8 Wall. 342 230
CASES CITED. 501
Pag*
Exton v. Railroad Co. (N. J. Sup.) 42 A. 486 207
Eyre v. Jordan, 111 Mo. 424, 19 S. W. 1095 317
F
Fabens v. Bank, 23 Pick. (Mass.) 330 387
Fahn v. Reichart, 8 Wis. 255 349, 350
Fair v. City of Philadelphia, 88 Pa. St. 309 449
Fairbank v. Haentzsche, 73 111. 236 113
Fairbanks v. Kerr, 70 Pa. St. 86 18
Fairchild v. Bentley, 30 Barb. (N. Y.) 147 363
Fairfax v. Railroad Co., 67 N. Y. 11 289
Fairmouut & A. S. P. Ry. Co. v. Stutler, 54 Pa. St. 375 181
Faison v. Railway Co., 69 Miss. 569, 13 South. 37 296
Fallen v. Boston, 3 Allen (Mass.) 38 323
Falls River & Machine Co. v. Car Co., 6 Ohio Dec. 85, 4 Ohio N. P. 26 278
Falvey v. Railroad Co., 76 Ga. 597 295
Faren v. Sellers, 39 La. Ann. 1011, 3 South. 363 147
Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028 50
Farmers' & Mechanics' Bank v. Transportation Co., 16 Vt. 52, 23 Vt.
186 260, 286
Farinington Mercantile Co. v. Railroad Co., 1G6 Mass. 154, 44 N. E. 131 ... 296
Faruham v. Railroad Co., 55 Pa, St. 53 219
Farrant v. Barnes, 11 C. B. (N. S.) 553 369
Farwell v. Railroad Co., 4 Mete. (Mass.) 49 124, 126
Fassett v. Roxbury, 55 Vt. 552 86
Fath v. Railway Co., 39 Mo. App. 447 104
F^aucher v. Wilson (N. H.) 38 Atl. 1002 220, 234
Faulkner v. Hart, 82 N. Y. 413 254, 287
44 N. Y. Super. Ct. 471 ' 216
v. Railway Co., 49 Barb. (N. Y.) 324 97
Fay v. Railway Co., 30 Minn. 231, 15 N. W. 241 91, 141
Feiber v. Telegraph Co. (Com. PI.) 3 N. Y. Supp. 116 284-
Feige v. Railroad Co., 62 Mich. 1, 28 N. W. 685 239, 258, 2S7
Feinberg v. Railroad Co., 52 N. J. Law, 451, 20 Atl. 33 227
Feinstein v. Jacobs, 15 Misc. Rep. 474, 37 N. Y. Supp. 345 316
Felder v. Railroad Co., 2 McMul. (S. C.) 403 79
Felice v. Railroad Co., 14 App. Div. 345, 43 N. Y. Supp. 922 106
Fell v. Railroad Co., 44 Fed. 248 185
Fellowes v. City of New Haven, 44 Conn. 240 438
Felska v. Railroad Co., 152 N. Y. 339, 46 N. E. 613 79
Felton v. Aubrey, 20 C. C. A. 436, 74 Fed. 350 68, 327
v. Railroad Co., 69 Iowa, 577, 29 N. W. 618 207
Fendersou v. Railroad Co., 56 N. J. Law, 708, 31 Atl. 767 90
Feneran v. Mfg. Co., 20 App. Div. 574, 47 N. Y. Supp. 284 170
Fenneman v. Holden, 75 Md. 1, 22 Atl. 1049 75
Fenner v. Railroad Co., 44 N. Y. 505 282, 287
Fera v. Child, 115 Mass. 32 315
502 CASES CITED.
Pagfr
Ferguson v. Railroad Co., 6 App. D. C. 523 401
77 Ga. 102 G9, 71
Fernandas v. Railroad Co., 52 Cal. 45 87
Ferren v. Railroad Co., 143 Mass. 197, 9 N. E. 608 93
Ferris v. Hernsheim (La.) 24 South. 771 9Q, 93-
Ferry v. Railway Co., 118 N. Y. 497, 23 N. E. 822 181
Field v. City of Des Moines, 39 Iowa, 575 452
v. Railroad Co., 32 N. Y. 339 356, 357
Fifield v. Insurance Co., 47 Pa. St. 166 229-
Filbert v. Canal Co., 121 N. Y. 207, 23 N. E. 1104 132, 133
Files v. Railroad Co., 149 Mass. 204, 21 N. E. 311 19O
Finalyson v. Milling Co., 14 C. C. A. 492, 67 Fed. 507 94
Finch v. Board, 30 Ohio St. 37 455-
Fink v. Garman, 40 Pa. St 95 399
Finley v. Langston, 12 Mo. 120 350>
v. Railway Co., 71 Minn. 471, 74 N. W. 174 61
Finn v. Railroad Corp., 102 Mass. 283 232
v. Railway Co., 86 Mich. 74, 48 N. W. 696 181
Finnegau v. Railway Co., 48 Minn. 378, 51 N. W. 122 179*
Finseth v. Railway Co., 32 Or. 1, 51 Pac. 84 208-
First Nat. Bank v. Railroad Co., 20 Ohio St. 259 275
v. Shaw, 61 N. Y. 283 253
Firth v. Iron Co., 3 C. P. Div. 254 310-
Fish v. Chapman, 2 Ga. 349 218, 260
v. Clark, 49 N. Y. 122 216-
v. Dodge, 4 Denio (N. Y.) 311 313
v. Kelly, 17 C. B. (N. S.) 194 374
Fisher v. City of Boston, 104 Mass. 87 441, 443, 453
v. Clark, 41 Barb. (N. Y.) 329 366-
v. Clisbee, 12 111. 344 216
v. Railway Co., 34 Hun (N. Y.) 433 17a
22 Or. 533, 30 Pac. 429 149-
39 W. Va. 366, 19 S. E. 578 206
V. Rankin, 78 Hun, 407, 29 N. Y. Supp. 143 161
v. Thirkell, 21 Mich. 1-20 314
Fisk v. Newton, 1 Denio (N. Y.) 45 224, 282, 283
Fitch v. Railroad Co., 45 Mo. 322 357, 359-
Fitch burg R. Co. v. Nichols, 29 C. C. A. 500, 85 Fed. 945 84, 202
Fitchburg & W. R. Co. v. Hanna, 6 Gray (Mass.) 539 279-
Fitzgerald v. Honkomp, 44 111. App. 365 , 133
v. Paper Co., 155 Mass. 155, 29 N. E. 464 114, 122
v. Railroad Co., 37 App. Div. 127, 55 X. Y. Supp. 1124 110
29 Minn. 336, 13 X. W. 168 63, 70-
v. Town of Weston, 52 Wis. 354, 9 X. W. 13 76, 83
Fitzhenry v. Traction Co. (N. J. Sup.) 42 Atl. 416 401
Fitzpatrick v. Mfg. Co. (N. J. Sup.) 39 Atl. 675 50, 306-
Flaherty v. Railway Co., 39 Minn. 328, 40 N. W. 160 207
Flanagan v. Asphalt Co., 37 App. Div. 476, 56 N. Y. Supp. 18 306
Flanders v. Meath, 27 Ga. 358 r <5>
CASES CITED. 503
Page
Flannagan v. Railway Co., 45 Wis. 98, 50 Wis. 462, 7 N. W. 337 94, 111
40 W. Va. 436, 21 S. E. 1028 150
FJansburg v. Basin, 3 111. App. 531 364, 365
Flatley v. Railroad Co., 9 Heisk. (Tenn.) 230 417
Fleet v. Uollenkerup, 13 B. Mon. (Ky.) 219 30, 370
Fleming v. Beck, 48 Pa. St. 309 13
Flemming v. Railroad Co., 49 Cal. 253 37, 335
Fletcher v. Braddick, 2 Bos. & P. (N. R.) 182 159
v. Railroad Co., 1 Allen (Mass.) 9 2, 323
108 U. S. 135, 18 Sup. Ct. 35 158, 324
v. Rylands, L. R. 1 Exch. 265, 279, L. R. 3 H. L. 330 319, 349
Flike v. Railroad Co., 53 N. Y. 54.9 98
Fliun v. Railroad Co., 1 Houst. (Del.) 469, 502 212, 238
Flint v. Transportation Co., 6 Blatchf. 158, Fed. Cas. No. 4,873 207
34 Conn. 554 173, 192
Flint & P. M. Ry. Co. v. Lull, 28 Mich. 510 347
v. Weir, 37 Mich. Ill 267
Flori v. City of St. Louis, 3 Mo. App. 231 61
Florida C. & P. R. Co. v. Foxworth (Fla.) 25 South. 338 394, 406, 407
Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 South. 714 191
Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 South. 506 36
Floyd v. Boyard, 6 Watts & S. (Pa.) 75 297
Flynn v. Fogarty, 106 111. 203 400
v. Hatton, 43 How. Prac. (N. Y.) 333 315
Fogarty v. Finlay, 10 Cal. 239 386
Foley Y. Horseshoe Co., 115 Cal. 184, 47 Pac. 42 146
v. Light Co., 54 N. J. Law, 411, 24 Atl. 487 112, 114, 116
v. Railway Co., 64 Iowa, 644, 21 N. W. 124 147
48 Mich. 622, 12 N. W. 879 107
Tollman v. City of Mankato, 35 Minn. 522, 29 N. W. 317 57
Fonda v. Railway Co., 71 Minn. 438, 74 N. W. 166, 168 101, 104
Fones v. Phillips, 39 Ark. 17 105
Fonseca v. Steamship Co., 153 Mass. 553, 27 N. E. 665 253, 258
Forbes v. Board, 28 Fla. 26, 9 South. 862 443
v. Snyder, 94 111. 374 419
Force v. Gregory, 63 Conn. 167, 27 Atl. 1116 377
Ford v. Mitchell, 21 Ind. 54 280
v. Monroe, 20 Wend. (N. Y.) 210 391
v. Pulp Co. (Mass.) 52 N. E. 1065 105
v. Railroad Co., 110 Mass. 240, 260 90, 91, 137, 138
v. Town of Braintree, G4 Yt. 144, 33 Atl. 633 429
v. Umatilla Co., 15 Or. 313, 16 Pac. 33 77
Fordyce v. Dillingham (Tex. Civ. App.) 23 S. W. 550 180
v. McCants, 51 Ark. 509, 11 S. W. 694 410
55 Ark. 384, 18 S. W. 371 411
Forrester v. Railroad Co., 92 Ga. 699, 19 S. E. 811 296
Ft. Scott, W. & W. Ry. Co. v. Sparks, 55 Kan. 288, 39 Pac. 1032 191, 196
Fortune Y. Trainor, 65 Hun, 619, 19 N. Y. Supp. 598 172, 174
Ft. Wayne, J. & S. R. Co. v. GildersleeYe, 33 Mich. 133 121
504 CASES CITED.
Page
Forward v. Pittard, 1 Term R. 27, 29, 33 218, 22G, 227, 229, 230
Fosburg v. Fuel Co., 93 Iowa, 54, 61 N. W. 400 90, 91, 93, 147
Foss v. Railway Co., 33 Minn. 392, 23 N. W. 553 211
Foster v. Bank, 17 Mass. 479 169
v. Peyser, 9 Cusli. (Mass.) 242 315
,v. Pusey, S Houst 168, 14 Atl. 545 14.6
v. Railway Co., 115 Mo. 165, 21 S. W. 916 148
Foulkes v. Railway Co., 4 C. P. Div. 267, 5 C. P. Div. 157 189
Fowle v. Council, 3 Pet. 398, 409 450
Fowler v. Railroad Co., 18 W. Va. 579 , 42, 84
v. Steam Co., 87 N. Y. 190 237
v. Town of Strawberry Hill, 74 Iowa, 644, 38 N. W. 521 447
Fowlkes v. Railroad Co., 5 Baxt. (Tenn.) 663 398, 421
Fox v. Buffalo Park, 21 App. Div. 321, 47 N. Y. Supp. 788 311
v. City of Chelsea, 171 Mass. 297, 50 N. E. 622 434
v. City of Richmond (Ky.) 40 S. W. 251 444
v. Jones (Tex. App.) 14 S. W. 1007 373
v. Railway Co., 118 Cal. 55, 50 Pac. 25 64
148 Mass. 220, 19 N. E. 222 234, 237
v. Sackett, 10 Allen (Mass.) 535 359
v. Thibault, 33 La. Ann. 33 386
Frace v. Railroad Co. (Sup.) 22 N. Y. Supp. 958; 143 X. Y. 182, 38 N. E. 102 358
Fraker v. Railway Co., 32 Minn. 54, 19 N. W. 349 141
France v. Railroad Co., 88 Hun, 318, 34 N. Y. Supp. 408 92
Francis v. Cockrell, L. R. 5 Q. B. 184 305
v. Railroad Co., 25 Iowa, 60 288
Francisco v. Aguirre, 94 Cal. 180, 29 Pac. 495 382
v. Railroad Co., 78 Hun, 13, 29 N. Y. Supp. 247 205
Frandsen v. Railroad Co., 36 Iowa, 372 147
Frank v. Railway Co., 57 Mo. App. 181 287
9 Pa. Super. Ct. 129 233
Frankford & B. Turnpike Co. v. Railroad Co., 54 Pa. St. 345 2, 353, 355
Frankhouser v. Cannon, 50 Kan. 621, 32 Pac. 379 383
Franklin v. Railway Co., 3 Hurl. & X. 211, 4 Jur. (X. S.) 565 411
37 Minn. 409, 34 X. W. 898 151
v. Smith, 21 Wend. (N. Y.) 624 387
Fraser v. Freeman, 56 Barb. (N. Y.) 234 393
v. Lumber Co., 45 Minn. 235, 47 N. W. 785 141
v. Schroeder, 163 111. 4,59, 45 N. E. 288 136
v. Tupper, 29 Vt. 409 349, 350
Frassi v. McDonald, 122 Cal. 400, 55 Pac. 139, 772 161
Frauenthal v. Gaslight Co., 67 Mo. App. 1 68
Fraysher v. Railway Co., 66 Mo. App. 573 345
Frazee v. Stott (Mich.) 79 X. W. 896 137
Frazier Y. Railroad Co., 101 Ga. 77, 28 S. E. 662 404
Frederick v. City of Columbus, 58 Ohio St. 538, 51 N. E. 35 426, 443, 450
v. Railroad Co., 37 Mich. 342 198
Fredericks v. Railroad Co., 46 La. Ann. 1180, 15 South. 413 49
Freedon v. Railroad Co., 24 App. Div. 306, 48 N. Y. Supp. 584 192
CASES CITED. 505
Page
freeman v. Newton, 3 E. D. Smith (N. Y.) 246 280
JFremantle v. Railroad Co., 10 C. B. (N. S.) 89 35G, 359
.Fremont, E. & M. V. R. Co. v. Waters, 50 Neb. 592, 70 N. W. 225 290
.French v. Aulls, 72 Hun, 442, 25 N. Y. Supp. 188 95
v. Railroad Co., 43 N. Y. 108 244
v. Railroad Co., 116 Mass. 537 327
v. Transportation Co., 134 Mass. 288 233
V. Vix, 143 N. Y. 90, 37 N. E. 612 166
Trick v. Railway Co., 75 Mo. 542, 595 31, 63, 66
Friedman v. McGowan (Del. Super.) 42 Atl. 723 365
v. Mathes, 8 Heisk. (Tenn.) 488 380
Friend v. Woods, 6 Grat (Va.) 189 227
Frier v. Canal Co., 86 Hun, 464, 33 N. Y. Supp. 886 356
Frink v. Coe, 4 G. Greene (Iowa) 555 203
v. Potter, 17 111. 406 203
v. Scovel, 2 Day (Conn.) 480 382
Frisby v. Town of Marshall, 119 N. C. 570, 26 S. E. 251 437
Fritz v. Light Co. (Utah) 56 Pac. 90 /. 91
v. Railroad Co., 22 Minn. 404 348
Frost v. Inhabitants, 12 Allen (Mass.) 85 75
v. Railroad Co., 10 Allen (Mass.) 387 305, 310
64 N. H. 220, 9 Atl. 790 307
Fuller v. Benett, 2 Hare, 402 56
v. Bradley, 25 Pa. St. 120 216
v. Jewett, 80 N. Y. 46 91
v. Railroad Co., 21 Conn. 557, 570 216
Fulton v. Railway Co., 17 U. C. Q. B. 428 201
Fultz v. Wycoff, 25 Ind. 321 366
Furman v. Railroad Co., 57 Iowa, 42, 10 N. W. 272; 62 Iowa, 395, 17 N.
W. 598; 68 Iowa, 219, 26 N. W. 83; 81 Iowa, 540, 46 N. W. 1049 232
IFurstenheirn v. Railroad Co., 9 Heisk. (Tenn,.) 238 182
G
Gaar, Scott & Co. v. Wilson, 21 Ind. App. 91, 51 X. E. 502 110
Gaffney v. Railroad Co., 15 R. I. 456, 7 Atl. 284 132, 149
Gage v. Tirrell, 9 Allen (Mass.) 299 216
Gahagan v. Aerinoter Co., 67 Minn. 252, 69 N. W. 914 156
v. Railroad Co., 1 Allen (Mass.) 187 335
Gaines v. Insurance Co., 28 Ohio St. 418 220, 239, 287
Galaviz v. Railroad Co. (Tex. Civ. App.) 38 S. W. 234 191, 196
Galena & C. U. R. Co. v. Fay, 16 111. 558. . .* 203
v. Loomis, 13 111. 548 340
Gallena v. Railroad Co., 13 Fed. 116 169
Galligan v. Mfg. Co., 143 Mass. 527, 10 N. E. 171 306
-Galloway v. Railway Co., 87 Iowa, 458, 54 N. W. 447. 3
56 Minn. 346, 57 N. W. 1058 324
<Jalveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64 G 7, 71, 395
506 CASES CITED.
Page
Galveston, H. & S. A. Ry. Co. v. Burnett (Tex. Civ. App.) 42 S. W. 314 4ia
v. Clark (Tex. Civ. App.) 51 S. W. 276 OS
v. Cody (Tex. Civ. App.) 50 S. W. 135 414
v. Croskell, 6 Tex. Civ. App. 160, 25 S. W. 486 25, 20-
v. Garteiser, 9 Tex. Civ. App. 456, 29 S. W. 930 *. . . .56, 32*
v. Gormley (Tex. Civ. App.) 27 S. W. 1051 90, 91
v. Henning (Tex. Civ. App.) 39 S. W. 302 99-
v. Kutac, 78 Tex. 473, 13 S. W. 327 61
v. McCrary (Tex. Civ. App.) 43 S. W. 275 11&
v. McMonigal (Tex. Civ. App.) 25 S. W. 341 19
v. Masterson (Tex. Civ. App.) 51 S. W. 1091 129-
v. Matula, 79 Tex. 577. 15 S. W. 573 405
v. Parsley, 6 Tex. Civ. App. 150, 25 S. W. 64 189-
v. Polk (Tex. Civ. App.) 28 S. W. 353 356-
v. Tuckett (Tex. Civ. App.) 25 S. W. 150 235-
v. Turner (Tex. Civ. App.) 23 S. W. 83 184
v. Wessendorf (Tex. Civ. App.) 39 S. W. 132 347
Galvin v. City of New York, 112 N. Y. 223, 19 X. E. 675 418-
Gambert v. Hart, 44 Cal. 542 372, 374, 375
Gandy v. Jubber, 5 Best & S. 485 313-
Gangawer v. Railroad Co., 168 Pa. St. 265, 32 Atl. 21 332
Ganley v. Hall, 168 Mass. 513, 47 N. E. 416 317
Gannon v. Railroad Co., 112 Mass. 234 128
Gardner v. City of New London, 63 Conn. 267, 28 Atl. 42 437
v. Friederich, 25 App. Div. 521, 49 N. Y. Supp. 1077 19, 25
v. Heartt, 3 Denio (N. Y.) 232, 236 2"
v. Northampton Co., 51 Conn. 143 178, 187, 194, 195
v. Railroad Co., 94 Ga. 538, 19 S. E. 757 178
150 U. S. 349, 14 Sup. Ct 140 151
v. Smith, 7 Mich. 410 347
Garland v. Towne, 55 N. H. 55 303
Gannon v. Inhabitants, 38 Me. 443 39, 5$
Garraux v. Council, 53 S. C. 575, 31 S. E. 597 439=
Garrett v. Railway Co., 36 Iowa, 121 8T
Garrick v. Railroad Co., 53 S. C. 448, 31 S. E. 334 405
Garside v. Navigation Co., 4 Term R. 581 280
Gartland v. Railway Co., 67 111. 494, 498 118, 130-
Gary v. Express Co. (Tex. Civ. App.) 40 S. W. 845 283-
Gashweiler v. Railway Co., 83 Mo. 112 288
Gass v. Railroad Co., 99 Mass. 220 291
Gates v. Ryan, 37 Fed. 154 285
v. State, 128 N. Y. 221, 28 N. E. 373 112"
Gatliffe v. Bourne, 4 Bing. (N. C.) 314, 329 284, 286
Gautret v. Egerton, L. R. 2 C. P. 371 211, 310-
Gavin v. City of Chicago, 97 111. 66 66-
Gay v. Winter, 34 Cal. 153 394
Gedney v. Kingsley, 62 Hun, 620, 16 N. Y. Supp. 792 378-
Gee v. Railroad Co., L. R. 8 Q. B. 161, 174 54
Geibel v. Elwell, 19 App. Div. 285, 46 N. Y. Supp. 76 6T
CASES CITED. 507
Page
Geiselman v. Scott, 25 Iowa, 86 379
Geismer v. Railway Co., 102 X. Y. 563, 7 X. E. 828 229, 235
General Steam Nav. Co. v. Navigation Co., L. R. 3 Exch. 330 159
Generous, The, 2 Dod. 322 221
George v. Railway Co., 57 Mo. App. 358 * 219
51 Wis. 603, 8 N. W. 374 420
George & Richard, The, L. R. 3 Adm. & Ecc. 466, 24 Law T. (X. S.) 717, 20
Wkly. Rep. 245 404
Georgia, C. & N. Ry. Co. v. Watkins, 97 Ga. 381, 24 S. E. 34 68
Georgia Pac. R. Co. v. Fullerton, 79 Ala. 298 36
v. Lee, 92 Ala. 262, 9 South. 230 6
Georgia R. Co. v. Cole, 68 Ga. 623 291
v. Pittman, 73 Ga. 325 : 415
Georgia Railroad & Banking Co. v. Forrester, 96 Ga. 428, 23 S. E. 416 296-
v. Garr, 57 Ga. 277 414
v. Keener, 93 Ga. 808, 21 S. E. 287 219, 249
v. McCurdy, 45 Ga. 288 180
v. Miller, 90 Ga. 571, 16 S. E. 939 146
v. Oaks, 52 Ga. 410 4ia
r. Rhodes, 56 Ga. 645 41
v. Smith, 128 U. S. 174, 9 Sup. Ct. 47 201
Geraty v. Stern, 30 Hun (X. Y.) 426 171
Gerhard v. Xeese, 36 Tex. 635 235
German v. Railroad Co., 38 Iowa, 127 .252, 262
Germania Ins. Co. v. The Lady Pike, 8 Am. Law Reg. (X. S.) 614, Fed. Cas.
Xo. 7.985 226
Geroux's Adm'r v. Graves, 62 Vt. 280, 19 Atl. 987 403-
Gheens v. Golden, 90 Ind. 427 86
G. H. Hammond Co. v. Mason, 12 Ind. App. 469, 40 N. E. 642 90
Gibbon v. Paynton, 4 Burrows, 2298 231, 259
Gibbons v. Railway Co., 155 Pa. St. 279, 26 Atl. 417 40
v. Williams, 135 Mass. 333 70
Gibbs v. City of Hannibal, 82 Mo. 143 401
v. Docks, 3 Hurl. & N. 164 426
v. Railway Co., 26 Minn. 427, 4 X. W. 819 324
v. Van Buren, 48 N. Y. 661 154
Giblin v. Steamship Co., 8 Misc. Rep. 22, 28 X. Y. Supp. 69 266
Gibney v. State, 137 X. Y. 1, 33 X. E. 142 18-
Gibson v. Culver, 17 Wend. (X. Y.) 305 282, 283, 286
v. Express Co., 1 Hun, 387 283
v. Leonard, 143 111. 182, 32 X. E. 182 50
v. Railroad Co., 30 Fed. 904 185
46 Mo. 163 117
63 X. Y. 449 109, 116-
v. Sullivan, 164 Mass. 557, 42 X. E. 110 93,
Gier v. Railway Co., 108 Gal. 129, 41 Pac. 22, 24 99
Giffen v. City of Lewiston (Idaho) 55 Pac. 545 434
Gilbart v. Dale, 5 Adol. & E. 543 218-
503 CASES CITED.
Page
Gilbert v. Gallup, 76 111. App. 526 384,
v. Railway Co., 160 Mass. 403, 36 N. E. 60 181
v. Trinity House, 17 Q. B. Div. 795 455
v. Williams, 8 Mass. 51 373
Gill v. Hoinrighausen, 79 Wis. 634, 48 N. W. 862 122
v. Middleton, 105 Mass. 477 313, 315, 317
v. Railroad Co., 42 Law J. Q. B. 89 220, 221
Gillam v. Railroad Co., 26 Minn. 268, 3 X. W. 353 345
Gillespie v. City of Lincoln, 35 Neb. 34, 52 X. W. 811 443
v. McGowan, 100 Pa. St. 144 31, 67, 309
v. Platt, 19 Misc. Rep. 43, 42 X. Y. Supp. 876 248
v. Railway Co., 6 Mo. App. 554 221
Gillett v. Ellis, 11 111. 579 226
Gilliam v. Railroad Co., 70 Ala. 268 172
Gilligan v. Railroad Co., 1 E. D. Smith (N. Y.) 453 63
Gillis v. Railroad Co., 59 Pa. St. 129 305
Gillrie v. City of Lockport, 122 X. Y. 403, 25 X. E. 357 434
Gillshannon v. Railroad Corp., 10 Cush. (Mass.) 228 190
Gilman v. Railroad Co., 13 Allen (Mass.) 433 99
v. Railroad Corp., 10 Allen (Mass.) 233 97
v. Town of Laconia, 55 N. H. 130 425, 454
Gilmore v. Carman, 1 Smedes & M. (Miss.) 279 . . . 227
v. Driscoll, 122 Mass. 199 301
v. Moore, 30 Ga. 628 385
Girard v. City of Philadelphia, 7 Wall. 1 424
Giraudi v. Improvement Co., 107 Cal. 120, 40 Pac. 108 42
Glase v. City of Philadelphia, 169 Pa. St. 488, 32 Atl. 600 303, 304
Glass v. Colman, 14 Wash. 635, 45 Pac. 310 313
Glassey v. Railroad Co., 57 Pa. St. 172 62
Gleason v. Amsdell, 9 Daly (X. Y.) 393 156
v. Boehm, 58 X. J. Law, 475, 34 Atl. 886 311, 316
v. Kellogg, 52 Vt. 14 374
v. Smith (Mass.) 51 X. E. 460 105
v. Transportation Co., 32 Wis. 85 196, 232, 256, 270, 275
Gleeson v. Railway Co., 140 U. S. 435, 11 Sup. Ct. 859 23, 165
Glenn v. Express Co., 86 Tenn. 594, 8 S. W. 152 251
Glover v. Mersman, 4 Mo. App. 90 302
v. Railroad Co., L. R. 3 Q. B. 25 11
Glushing v. Sharp, 96 X. Y. 676 325, 334
Goddard v. Inhabitants, 84 Me. 499, 24 Atl. 958. 441
v. Railway Co., 57 Me. 202 170
Godeau v. Blood, 52 Vt. 251 364
Godefroy v. Dalton, 6 Bing. 460, 467 372
v. Jay, 7 Bing. 413 371
Godley v. Hagerty, 20 Pa. St. 387 314
Goggin v. Railway Co., 12 Kan. 416 251
Goines v. McCandless, 4 Phila. (Pa.) 255 195
Golden v. Xewbrand, 52 Iowa, 59, 2 X. W. 537 172
v. Railroad Co., 187 Pa. St. 635, 41 Atl. 302, 43 Wkly. Xotes Cas. 106. . 327
CASES CITED. 509 1
Page
Goldey v. Railroad Co., 30 Pa. St. 242 219, 266-
Goldis v. Gately, 168 Mass. 300, 47 X. E. 90 382
Goldschmid v. City of New York, 14 App. Uiv. 135, 43 X. Y. Supp. 447. ... 432
Goldstein v. Railway Co., 46 Wis. 404, IX. W. 37 211
Good v. Railway Co. (Tex. Sup.) 11 S. W. 854 252:
Goode v. Martin, 57 Md. 606 364
Goodes v. Railroad Co., 162 Mass. 287, 38 X. E. 500 112, 115
Goodfellow v. Railroad Co., 106 Mass. 461 129
Goodman v. Xavigation Co., 22 Or. 14, 28 Pac. 894, 898 231, 296
v. Railway Co., 71 Mo. App. 460 248
Goodrich v. City of Chicago, 20 111. 445 449
v. Starr, 18 Vt. 227 382
v. Thompson, 44 X. Y. 324 224
Goodwin v. Xickerson, 17 R. I. 478, 23 Atl. 12 400
v. Railroad Co., 58 Barb. (X. Y.) 195 285
50 X. Y. 154, 10 Am. Rep. 457 284
Goold v. Chapin, 20 N. Y. 259 288, 291
Gordon v. City of Taunton, 126 Mass. 349 446
v. Railroad Co., 40 Barb. 546 177, 178
52 X. H. 596 198-
Gordy v. Railroad Co., 75 Md. 297, 23 Atl. 607 102
Gore v. Brazier, 3 Mass. 523 374
v. Transportation Co., 2 Daly (X. Y.) 254 275-277
Gorham v. Railroad Co., 23 Hun (X. Y.) 449 409
Gorham Mfg. Co. v. Fargo, 45 How. Prac. (X. Y.) 90 230
Gorman v. Railroad Co., 26 Mo. 441 ! 345
Gormully & Jeffery Mfg. Co. v. Olsen, 72 111. App. 32 91
Gorr v. Mittlestaedt, 96 Wis. 296, 71 X. W. 656 31
Gossler v. Schepeler, 5 Daly (X. Y.) 476 298-
Gothard v. Railroad Co., 67 Ala. 114 51, 52
Gottlieb v. Railroad Co., 29 Hun (X. Y.) 637, 100 X. Y. 462, 3 X. E. 344 96
Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822 430
v. Hill, 2 Hill (X. Y.) 623 238
v. McKenna, 86 Pa. St. 297 53
v. Schermer, 101 Iowa, 582, 70 X. W. 697 18, 20'
v. Woolen Co., 147 Mass. 315, 17 X. E. 531 370
Government St. R. Co. v. Hanlon, 53 Ala. 70 67, 70
Governor v. Carter, 10 X. C. 328 '. 384
v. Dodd, 81 111. 163 388
v. Powell. 9 Ala. 83 384
v. Wiley, 14 Ala. 172 388
Gowen v. Bush. 22 C. C. A. 196, 76 Fed. 349 145
Grace v. Adams, 100 Mass. 505 239, 256, 258
Graffam v. Railroad Co., 67 Me. 234 274
Graf ton, The, 1 Blatchf. 173, Fed. Cas. Xo. 5,655 286
Graham v. Davis, 4 Ohio St. 362 220
v. Town of Oxford, 105 Iowa, 705, 75 N. W. 473 32, 432, 434
Gram v. Railroad Co., 1 X. D. 252, 46 X. W. 972 16
Gramm v. Boener, 56 Ind. 497 376
510 CASES CITED.
Page
Granby v. Railroad Co., 104 Mich. 403, 62 N. W. 579 342
Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537 204
Grand Tower Mfg. & Transp. Co. v. Ullman, 89 111. 244 279
Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493 151
v. Ives, 144 U. S. 408, 12 Sup. Ct. 679 38
v. Richardson, 91 U. S. 454 359
v. Stevens, 95 U. S. 655 212
Grand Trunk Ry. Co. of Canada v. Jennings, 13 App. Cas. 800, 58 Law
J. P. C. 1, 59 Law T. (X. S.) 679 413
Grannis v. Branden, 5 Day (Conn.) 260 378
v. Cummings, 25 Conn. 165 349
Grant v. Baker, 12 Or. 329, 7 Pac. 318 84
v. City of Erie, 69 Pa, St. 420 451
v. City of Still water, 35 Minn. 242, 28 X. W. 660 447
v. Moseley, 29 Ala. 302 2
v. Varney, 21 Colo. 329, 40 Pac. 771 146
Graves v. Railroad Co., 29 App. Div. 591, 51 X. Y. Supp. 636 289
137 Mass. 33 247, 248
v. Thomas, 95 Ind. 361 309
Gray v. City of Detroit, 112 Mich. 657, 71 N. W. 1107. 444
v. Combs, 7 J. J. Marsh. (Ky.) 478 308
v. Harris, 107 Mass. 492. . 319
v. Jackson, 51 N. H. 9 291
v. Railroad Co., 11 Fed. 683 195
24 Fed. 168 59, 129
168 Mass. 20, 46 N. E. 397 158, 170
172 Pa. St. 383, 33 Atl. 697 335
v. Scott, 66 Pa. St. 345 42, 68
Greany v. Railroad Co., 101 N. Y. 419, 5 X. E. 425 87, 333, 335
Great Northern Ry. Co. v. Harrison, 10 Exch. 376 196
v. Shepherd, 8 Exch. 30, 14 Eng. Law & Eq. 367 231, 273
Great Western Ry. Co. v. Blake, 7 Hurl. & X. 987 182, 206
v. Crouch, 3 Hurl. & X. 183 297
v. Haworth, 39 111. 346, 353 3
v. Miller, 19 Mich. 305 183, 185
Green v. Railroad Co., 31 Barb. (X. Y.) 260, 16 How. Prac. (X. Y.) 263 401
11 Hun (N. Y.) 333 338
38 Iowa, 100, 41 Iowa, 410 280, 281
41 X. Y. 294 391
v. Sansom (Fla.) 25 South. 332 95
v. Southern Pac. Co. (Cal.) 55 Pac. 577 405
v. Thompson, 26 Minn. 500, 5 X. W. 376 402
Greene v. Railway Co., 31 Minn. 248, 17 X. W. 378 120, 121
Greene Co. v. Eubanks, 80 Ala. 204 455, 456
Greenland v. Chaplin, 5 Exch. 243 11, 27, 54
Greenleaf v. Railroad Co., 29 Iowa, 14 91
Green Ridge R. Co. v. Brinkman, 64 Md. 52, 20 Atl. 1024 16, 357
Greenwich Ins. Co. v. Packet Co., 4 O. L. D. 405 273
Gregory, The, 9 Wall. 513 59
CASES CITED. 511
Page
Gregory v. Railway Co., 100 Iowa, 345, 68 N. W. 532 197
Grey's Ex'r v. Trade Co., 55 Ala. 387 86
Gridley v. City of Bloomington, 68 111. 47 311, 312
Grieve v. Railway Co., 104 Iowa, 659, 74 N. W. 192 219, 250
Griffin v. Mayor, etc., 9 N. Y. 456 451
v. Railway Co., 124 Ind. 326, 24 N. E. 888 105
Griffith v. Cave, 22 Cal. 535 216
v. Railway Co., 98 Mo. 168, 11 S. W. 559 180
Griffiths v. Lee, 1 Car. & P. 110 218
v. Wolfram, 22 Minn. 185 130
Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62) 25, 26, 36, 45, 52
v. Foote, 4 Allen (Mass.) 195 444
Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756 366
v. Pennsylvania Co., 36 Fed. 72 176, 177
Grindle v. Express Co., 67 Me. 317 237
Grindley v. McKechnie, 163 Mass. 494, 40 N. E. 764 306
Grippen v. Railroad Co., 40 N. Y. 34 *. 36, 326
Griswold v. Railroad Co., 64 Wis. 652, 26 N. W. 101 211
Grive v. Dunham, 60 Iowa, 108, 14 N. W. 130 298
Grogan v. Express Co., 114 Pa. St 523, 7 Atl. 134 249
v. Foundry Co., 87 Mo. 321 409
v. Railway Co., 39 W. Va, 415, 19 S. E. 593 183
Gronstadt v. Witthoff, 15 Fed. 265 253
Grosenbach v. City of Milwaukee, 65 Wis. 31, 26 N. W. 182 434
Gross v. City of Portsmouth (N. H.) 33 Atl. 256 443
v. Railway Co., 73 111. App. 217 4
Grosvenor v. Railroad Co., 39 N. Y. 34 279, 281
Groth v. Washburn, 89 N. Y. 615 154
Grove v. City of Ft. Wayne, 45 Ind. 429 432, 436
Grover & Baker Sewing Mach. Co. v. Railway Co., 70 Mo. 672 294, 295
Grunberg v. Grant, 3 Misc. Rep. 230, 22 N. Y. Supp. 747 383
Guggenheim Smelting Co. v. Flanigan (N. J. Err. & App.) 41 Atl. 844 92
Guinney v. Hand, 153 Pa. St. 404, 26 Atl. 20 173, 174
Gulf, C. & S. F. Ry. Co. v. Calvert, 11 Tex. Civ. App. 297, 32 S. W. 246..150, 328
v. Campbell, 76 Tex. 174, 13 S. W. 19 196
v. Cash, 8 Tex. Civ. App. 569, 28 S. W. 387 347
v. Compton, 75 Tex. 667, 13 S. W. 667 410, 413
(Tex. Civ. App.) 38 S. W. 220 227, 280
v. Cunningham (Tex. Civ. App.) 30 S. W. 367 306, 307
v. Finley, 11 Tex. Civ. App. 64, 32 S. W. 51 103
v. Gatewood, 79 Tex. 89, 14 S. W. 913 225, 229, 235
v. Hamilton (Tex. Civ. App.) 42 S. W. 358 332
v. Higby (Tex. Civ. App.) 26 S. W. 737 202
v. Holder, 10 Tex. Civ. App. 223, 30 S. W. 383 231
v. Hughes (Tex. Civ. App.) 31 S. W. 411 234
v. Hume, 87 Tex. 211, 27 S. W. 110 235
v. Jackson, 12 C. C. A. 507, 65 Fed. 48 93, 94
v. Jagoe (Tex. Civ. App.) 32 S. W. 717 359
v. Johnson (Tex. Sup.) 50 S. W. 563 357
512 CASES CITED.
Page-
Gulf, C. & S. F. Ry. Co. v. Kirkbridge, 79 Tex. 457, 15 S. W. 495 185-
v. Kuenble (Tex. App.) 16 S. W. 177 185
v. Levi, 76 Tex. 337, 13 S. W. 191 218, 229, 234, 235
v. McGown, 65 Tex. 640 212, 239>
v. McWliirter, 77 Tex. 356, 14 S. W. 26 69-
v. Malone (Tex. Civ. App.) 25 S. W. 1077 296-
v. Morris, 67 Tex. 692, 4 S. W. 156 209
v. Pendry, 87 Tex. 553, 29 S. W. 1038 57, 59, 60*
v. Sain (Tex. Civ. App.) 24 S. W. 958 180>
v. Scott (Tex. Civ. App.) 27 S. W. 827 330-
v. Spence (Tex. Civ. App.) 32 S, W. 329 324
v. Stricklin (Tex. Civ. App.) 27 S. W. 1093 202
v. Styron, 66 Tex. 421, 1 S. W. 161 69-
v. Trawick, 68 Tex. 314, 4 S. W. 567 239, 250, 262
80 Tex. 270, 15 S. W. 568, 18 S. W. 948 279-
v. Warner, 89 Tex. 475, 35 S. W. 364 150>
(Tex. Civ. App.) 36 S. W* 118 92
v. Wells (Tex. Sup.) 16 S. W. 1025 149>
v. Wright, 10 Tex. Civ. App. 179, 30 S. W. 294 200
v. Yates (Tex. Civ. App.) 32 S. W. 355 25O
v. Younger (Tex. Giv. App.) 40 S. W. 423 416
Gulf, W. T. & P. Ry. Co. v. Abbott (Tex. Civ. App.) 24 S. W. 299 89
Gulf, W. & P. Ry. Co. v. Griffith (Tex. Civ. App.) 24 S. W. 362 292
Gullikson v. McDonald, 62 Minn. 278, 64 N. W. 812 440, 443
Gulliver v. Express Co., 38 111. 503 215, 282
Gumb v. Railway Co., 53 N. Y. Super. Ct. 466 323
Gum^ v. Railway Co., 52 Wis. 672, 10 N. W. 11 40-
Gunderson v. Elevator Co., 47 Minn. 161, 49 N. W. 694 410
Gunn v. Railroad Co., 37 W. Va. 421, 16 S. E. 628 63
42 W. Va. 676, 26 S. E. 546 51, 64, 65
Gusman v. Railroad Co., 49 La. Ann. 1264, 22 South. 742 118
Guthrie v. Railway Co., 51 Neb. 746, 71 N. W. 722 37
Gutkind v. City of Elroy, 97 Wis. 649, 73 N. W. 325 434
Guy v. Railway Co., 6 Ohio N. P. 3 184, 185
Gwinnell v. Earner, L. R. 10 C. P. 658 313, 314=
Gwyn v. Railroad Co., 85 N. C. 429 298
Gwynn v. Duffield, 66 Iowa, 708, 24 N. W. 523 370-
H
Haag v. Board, 60 Ind. 511 441, 445
Haas v. Railroad Co., 81 Ga. 792, 7 S. E. 629 229, 235
40 Hun (N. Y.) 145 109 1
41 Wis. 44 336
Haase v. Navigation Co., 19 Or. 354, 24 Pac. 238 195
Hackett v. Smelsley, 77 111. 109 40O
Hadji, The, 18 Fed. 459 248
20 Fed. 875 . . 286.
CASES CITED. 513
Page
Hadley v. Clarke, 8 Term R. 259 236
v. Railroad Co. (Ind. App.) -40 X. E. 935. : 87
v. Taylor, L. R. 1 C. P. 53 309
Haff v. Railway Co.. 14 Fed. 558 59
Hafford v. City of New Bedford, 16 Gray (Mass.) 297 443, 450, 452
Hagen v. Kean, 3 Dill. 124, Fed. Cas. No. 5,899 400
Hagerty v. Hughes, 4 Baxt (Tenn.) 222 416
Haggerty v. Railroad Co., 31 N. J. Law, 349 404
Haines v. Railroad Co., 29 Minn. 160, 12 N. W. 447 273
Haizlip v. Rosenberg, 63 Ark. 430, 39 S. W. 60 316
Hale v. Kearly, 8 Baxt. (Tenn.) 50 418
Haley v. Lumber Co., 81 Wis. 412, 51 N. W. 321, 956 161
v. Railroad Co., 7 Baxt. 239 398
21 Iowa, 15 52
Hall v. City of Austin (Minn.) 75 N. W. 1121 432
v. Railroad Co., 15 Fed. 57 186, 198
39 Fed. 18 411
13 Utah, 243, 44 Pac. 1046 52
v. Renfro, 3 Mete. (Ivy.) 52 216
Halliburton v. Railroad Co., 58 Mo. App. 27 108
Halliday v. Railway Co., 74 Mo. 159 293
Hallyburton v. Ass'n, 119 X. C. 526, 26 S. E. 114 42
Ham v. Canal Co., 142 Pa. St. 617, 21 Atl. 1012 184
v. Mayor, etc., 70 X. Y. 459 441
Hamilton v. Jones, 125 Ind. 176, 25 X. E. 192 402
v. McPherson, 28 X. Y. 72 53
v. Railroad Co., 51 X. Y. 100 200
54 Tex. 556 119
64 Tex. 251 211
Hamlin v. Railway Co., 1 Hurl. & N. 408 210
Hammond v. Railroad Co., 6 S. C. 130 188, 189
v. Town of Mukwa, 40 Wis. 35 25
Hance v. Railway Co., 56 Mo. App. 476 253
Hancock v. Railroad Co. (Ind. App.) 51 X. E. 369 5, 8
Hand v. Baynes, 4 Whart. (Pa.) 204 224
Hamlley v. Mining Co., 15 Utah, 176, 49 Pac. 295 151
Hankins v. Watkins, 77 Hun, 360, 28 X. Y. Supp. 867 368
Haiilon v. Ingram, 3 Iowa, 81 350
v. Railroad Co., 129 Mass. 310 46, 328
Hanna v. Railroad Co., 32 Ind. 113 420, 421
Hannibal R. Co. v. Swift, 12 Wall. 262 191, 194, 216, 217, 270
Hannibal & St. J. R. Co. v. Fox, 31 Kan. 586, 3 Pac. 320 147
v. Martin, 111 111. 219 178, 206
Hannigan v. Railway Co., 157 X. Y. 244, 51 X. E. 992 110
Hannon v. St. Louis Co., 62 Mo. 313 425, 449
Hanrathy v. Railway Co., 46 Md. 280 148
Hansen v. Railway Co., 105 Cal. 379, 38 Pac. 957 327
73 Wis. 346, 41 X. W. 529 203
Hansford's Adm'x v. Payne, 11 Bush (Ky.) 380 398
BAR.XEG. 33
514 CASES CITED.
Page
Hanson v. Beckwith (R. I.) 37 Atl. 702 317
v. Hammell (Iowa) 77 N. W. 839 107
v. Railway Co., 75 111. App. 474 172
Hard v. Railroad Co., 32 Vt. 473 150
Hardcastle v. Railroad Co., 4 Hurl. & N. 67 309
Hardenbergh v. Railway Co., 39 Minn. 3, 38 N. W. 625 193
Harding v. Railroad Co., 100 Iowa, 677, 69 N. W. 1019 348
Hardman v. Willcock, 9 Bing. 382 297
Hardy, In re, 35 Minn. 193, 28 N. W. 219 402
v. City of Brooklyn, 7 Abb. (N. C.) 403 429
v. Railroad Co., 57 N. J. Law, 505, 31 Atl. 281 128, 148
76 N. C. 5 98
Hargreaves v. Deacon, 25 Mich. 1 306, 310
Harkin v. Crumbie, 14 Misc. Rep. -139, 35 N. Y. Supp. 1027 316
20 Misc. Rep. 568, 46 N. Y. Supp. 453 317
Harmon v. Railroad Co., 7 Mackey, 255 40
Harmony v. Bingham, 1 Duer (N. Y.) 209, 12 N. Y. 99 237
Harold, The, 21 Fed. 428 128, 166
Harp v. The Grand Era, 1 Woods, 184, Fed. Cas. No. 6,084 293
Harpel v. Fall, 63 Minn. 520, 65 N. W. 913 315
Harper v. Railroad Co., 22 App. Div. 273, 47 N. Y. Supp. 933 59
36 Fed. 102 403
Harriman v. Baird, 6 App. Div. 518, 39 N. Y. Supp. 592 375
Harrington v. McKillop, 132 Mass. 567 400
v. McShane, 2 Watts (Pa.) 443 216, 284
r. Mining Co. (Utah) 53 Pac. 737 85
Harriott v. Plimpton, 166 Mass. 585, 44 N. E. 992 376, 377
Harris v. James, 45 Law J. Q. B. 545 314
v. McNamara, 97 Ala. 181, 12 South. 103 161
v. Packwood, 3 Taunt. 264 238
v. Railway Co., 78 Ga. 525, 3 S. E. 355 417
20 N. Y. 232 233, 262
15 R. I. 371, 5 Atl. 305 294
(R. I.) 16 Atl. 512 293
v. Stevens, 31 Vt. 79 176
v. Tenney, 85 Tex. 254, 20 S. W. 82 382
v. Uebelhoer, 75 N. Y. 169 59
Harrisburg, The, 119 U. S. 199, 7 Sup. Ct. 140 420
Harrison v. Brega, 20 U. C. Q. B. 324 388
v. Fink, 42 Fed. 787 184
v. Railroad Co., 3 Hurl. & C. 231 54
29 Law T. (N. S.) 844 327
74 Mo. 364 237
31 N. J. Law, 293 148
6 S. D. 100, 60 N. W. 405 344
Harsha v. Babicx, 54 111. App. 586 91
Hart v. Bridge Co., 80 N. Y. 622 87
v. Bridgeport, 13 Blatchf. 289, Fed. Cas. No. 6,149 452
v. Devereux, 41 Ohio St. 505 44
CASES CITED. 515
Page
Hart v. Frame, 6 Clark & F. 193 374
v. Park Club, 54 111. App. 480 50
v. Railroad Co., 13 Mete. (Mass.) 99 352
112 U. S. 331, 5 Sup. Ct. 151 247, 250
v. Windsor, 12 Mees. & W. 68 315
Hartan v. Railroad Co., 114 Mass. 44 181, 182
Hartfield v. Roper, 34 Am. Dec. 273, 21 Wend. (X. Y.) 615. .64, 70-72, 394, 395
Hartford & N. H. R. Co. v. Andrews, 36 Conn. 213 401
Hartleib v. McLane's Adm'rs, 44 Pa. St. 510 385
Hartley v. Harriman, 1 Holt, X. P. 617 364
Hartman v. Muelbach, 2 Mo. App. Rep'r, 956 158
Hartnall v. Com'rs, 4 Best & S. 361, 33 Law J. Q. B. 39 455
Hartwell v. Express Co., 5 Dak. 463, 41 X. W. 732 258
Hartzall v. Sill, 12 Pa. St. 248 318
Harvey v. City of Hillsdale, 86 Mich. 330, 49 X. W. 141 447
v. Railroad Co., 35 App. Div. 307, 55 N. Y. Supp. 20 323
74 Mo. 538 247, 250
88 X. Y. 481 98
23 X. Y. Wkly. Dig. 198 57
v. Rose, 26 Ark. 3 216
Haskell v. New Bedford, 108 Mass. 208 428
Haslam v. Express Co., 6 Bosw. (N. Y.) 235 283
Hass v. Steamship Co., 88 Pa. St. 269 129
Hasse v. Express Co., 94 Mich. 133, 53 X. W. 918 283
Hassen v. Railroad Co., 34 App. Div. 71, 53 X. Y. Supp. 1069 205
Hassenyer v. Railroad Co., 48 Mich. 205, 12 X. W. 155 75
Hastings v. Halleck, 13 Cal. 204 373, 375
v. Pepper, 11 Pick. (Mass.) 41 216
Hasty v. Sears, 157 Mass. 123, 31 X. E. 759 128
Hatch v. Dwight, 17 Mass. 289 318
Hathaway v. Railroad Co., 29 Fed. 489 42
92 Iowa, 337, 60 N. W. 651 95, 98, 147
51 Mich. 253, 16 X. W. 634 110
Hatt v. Xay, 144 Mass. 186, 10 X. E. 807 1 120
Hatton v. Holmes, 97 Cal. 208, 31 Pac. 1131 386
Haug v. Railway Co., 42 Lawy. Rep. Ann. 664 417
(X. D.) 77 X. W. 97 206
Haughey v. Hart, 62 Iowa, 96, 17 X. W. 189 309
Havens v. Railroad Co., 28 Conn. 69 201
Haver v. Railroad Co. (X. J. Err. & App.) 41 Atl. 916 170
Haverly v. Railroad Co., 135 Pa. St. 50, 19 Atl. 1013, 26 Wkly. Xotes Cas. 321 15
Ha verstick v. Railroad Co., 171 Pa. St. 101, 32 Atl. 1128 340
Hawcroft v. Railway Co., 8 Eng. Law & Eq. 362 193, 210
Hawke v. Brown, 28 App. Div. 37, 50 X. Y. Supp. 1032 166
Hawkes v. Smith, Car. & M. 72 218
Hawkins v. The Hattie Palmer, 63 Fed. 1015 283
V.Hoffman, 6 Hill (X. Y.) 586 268,271
v. Johnson, 105 Ind. 29, 4 X. E. 172 110
y. Railroad Co., 17 Mich. 57, 18 Mich. 427 222, 245, 253
516 CASES CITED.
Page
Hawkins v. Taylor, 56 Ark. 45, 19 S. W. 105 382
Hawley v. City of Johnstown, 40 App. Div. 568, 58 N. Y. Supp. 49 437
Hawyer v. Whalen, 49 Ohio St. 69, 29 N. E. 1049 161
Hay v. Cohoes Co., 2 N. Y. 159 174
v. Railroad Co., 37 U. C. Q. B. 456 44
Haycroft v. Railroad Co., 64 N. Y. 636 333
Hayden v. Mfg. Co., 29 Conn. 548 107
Hayes v. City of Oshkosh, 33 Wis. 314 452, 453
v. Colchester Mills, 69 Vt. 1, 37 Atl. 269 107, 119
v. Norcross, 162 Mass. 546, 39 N. E. 282 67, 69'
r. Railroad Co., Ill U. S. 228, 4 Sup. Ct. 369 .' 74
v. Smith, 8 Ohio Dec. 92 362, 363:
v. Wells, Fargo & Co., 23 Cal. 185 215, 231
Haynes v. Railroad Co., 3 Cold. (Tenn.) 222 102
Haynie v. Railroad Co., 9 111. App. 105 41T
Hays v. Ewing, 70 Cal. 127, 11 Pac. 602 375
v. Kennedy, 41 Pa. St. 378 219
v. Miller, 77 Pa. St. 238, 242 168
v. Railway Co.. 70 Tex. 602, 606, 8 S. W. 491 6
Hays' Adm'r v. Miller, 6 Hun (N. Y.) 320 350
Healey v. Lothrop, 171 Mass. 263, 50 N. E. 540 155
Healy v. Mayor, etc., 3 Hun (N. Y.) 708 77
Hearne v. Railroad Co., 50 Cal. 482 37
Heath v. Railway Co., 90 Hun, 560, 36 N. Y. Supp. 22 40
Heaven v. Fender, 11 Q. B. Div. 506 1
Heckman v. Evenson, 7 N. D. 173, 73 N. W. 427 87
Hector Min. Co. v. Robertson, 22 Colo. 491, 45 Pac. 406 49, 309
Hedges v. City of Kansas, 18 Mo. App. 62 61
v. Railroad Co., 49 N. Y. 223 285, 287
Hedin v. Railway Co., 26 Or. 155, 37 Pac. 540 63
Heeg v. Licht, 80 N. Y. 579 369
Heerington v. Village of Lansingburgh, 110 N. Y. 145, 17 N. E. 728 447
Hefferen v. Railroad Co., 45 Minn. 471, 48 N. W. 1 151
Hefferman v. Alfred Barber's Son, 36 App. Div. 163, 55 N. Y. Supp. 418. . 40'
Hegeman v. Railroad Corp., 13 N. Y. 9 29, 203, 204
Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787 402, 403
Heidt v. Minor, 113 Cal. 385, 45 Pac. 700 386
Heimann v. Railroad Co., 2 Daly (N. Y.) 117 251
Heine v. Railway Co., 58 Wis. 531, 17 N. W. 420 150-
Heim v. McCaughan, 32 Miss. 17 210
Helfrich v. Railway Co., 7 Utah, 186, 26 Pac. 295 394
Helliwell v. Railway Co., 7 Fed. 68 '... .223, 292
Hellman v. Holladay, 1 Woolw. 365, Fed. Cas. Xo. 6,340 270, 273
Helmke v. Stetler, 69 Hun, 107, 23 N. Y. Supp. 392 106
Hemphill v. Chenie, 6 Watts & S. (Pa.) 62 282
Hemsworth v. Gushing, 115 Mich. 92, 72 N. W. 1108 301
Henderson v. Railroad Co., 20 Fed. 430; 123 U. S. 61, 8 Sup. Ct. 60 275
v. Smith, 26 W. Va. 829 38f?
v. Stevenson, L. R. 2 H. L. Sc. 470 . 198-
CASES CITED. 517
Page
Hendrick r. Railroad Co., 170 Mass. 44, 48 X. E. 835 20<j
llendricken v. Meadows, 154 Mass. 599, 28 X. E. 1O54 42
Hendryx v. Railroad Co., 45 Kan. 377, 25 Pac. 893 195
Henion v. Railroad Co., 25 C. C. A. 223, 79 Fed. 903 116
Henkes v. City of Minneapolis, 42 Minn. 530, 44 X. W. 1026 433
Henline v. Reese, 54 Ohio St. 599, 44 N. E. 269, 56 Am. St Rep. 36 382
Hennessy v. Brewing Co., 145 Mo. 104, 46 S. W. 966 401
v. City of Boston, 161 Mass. 502, 37 X. E. 668 94
v. Railroad Co., 99 Wis. 109, 74 X. W. 554 32
Henry v. Dennis, 93 Ind. 452 45
v. Railroad Co., 50 Cal. 176 352
67 Fed. 426 44
139 Pa. St. 289, 21 Atl. 157 169
Hepburn v. City of Philadelphia, 149 Pa. St. 335. 24 Atl. 279 164
Herbert v. Southern Pac. Co., 121 Cal. 227, 53 Pac. 651 87
Herdler v. Range Co., 136 Mo. 3, 37 S. W. 115 90
Hermann v. Goodrich, 21 Wis. 543 286, 291
v. Mill Co., 71 Fed. 853 145
Hern v. Xichols, 1 Salk. 289 153
Hess v. Lupton, 7 Ohio, 216 310
v. Mining Co., 178 Pa. St. 239, 35 Atl. 990 14, 156
Hession v. City of Wilmington, 1 Marv. 122, 40 Atl. 749 429
Hetherington v. Railway Co., 9 Q. B. Div. 160 411
Hettchen v. Chipman, 87 Md. 729. 41 Atl. 65 107
Hewett v. Railway Co., 63 Iowa, 611, 19 X. W. 790 222, 225
Hewey v. Xourse, 54 Me. 256 350
Hewison v. City of Xew Haven, 37 Conn. 475 426. 449
Hewitt v. Eisenbart, 36 Xeb. 794. 55 N. W. 252 376, 377
v. Railway Co., 167 Mass. 483, 46 X. E. 106 63
Hey v. City of Philadelphia, 81 Pa. St. 44 435
Heyer v. Salsbury, 7 111. App. 93 412
Hibbard v. Railroad Co., 15 X. Y. 455 184, 196
Hickey v. Railroad Co., 14 Allen (Mass.) 429 334
Hickman v. Railway Co., 22 Mo. App. 344 410
Higginbotham v. Railway Co., 10 Wkly. Rep. 358 218
Higgins v. Butcher, Yel. 89 390
v. Dewey, 107 Mass. 494 349
v. Railroad Co.. 1 Marv. 352, 41 Atl. 86 52
36 Mo. 418 190, 196
v. Telegraph Co., 8 Misc. Rep. 433. 28 N. Y. Supp. 676 157
Hildreth v. City of Lowell. 11 Gray (Mass.) 345 428
Hill v. Allen, 2 Mees. & W. 283 374
v. Balls, 2 Hurl. & N. 299 366
v. Board, 72 X. C. 55 451
v. City of Boston, 122 Mass. 344 431, 433, 440, 450, 454, 455
v. Drug Co., 140 Mo. 433, 41 S. W. 909 105
v. Gust. 55 Ind. 45 86
v. Humphreys, 5 Watts & S. (Pa.) 123 283
v. Railroad Co., 60 Iowa, 196, 14 X. W. 249 294
518 CASES CITED.
Page
Hill v. Railroad Co., 144 Mass. 284, 10 N. E. 836 247, 248
158 Mass. 458, 33 N. E. 582 181, 205
66 Mo. App. 184 346
67 N. H. 449, 32 Atl. 766 345
63 N. Y. 101 199
v. Sturgeon, 28 Mo. 323 219
v. Town of New Haven, 37 Vt. 501 420
v. Winsor, 118 Mass. 251 11
Billiard v. Richardson, 3 Gray (Mass.) 349 300
Hillis v. Railway Co., 72 Iowa, 228, 33 N. W. 643 275, 277
Hillman v. Xewington, 57 Gal. 56 57
Hill Mfg. Co. v. Boston & L, R. Corp., 104 Mass. 122 291-293
Hincks v. City of Milwaukee, 46 Wis. 559, 1 N. W. 230 447
Hiner v. City of Fond du Lac, 71 Wis. 74, 36 N. W. 632 432
Hines v. Willcox, 96 Tenn. 148, 33 S. W. 914 313
Hinton v. Railway Co. (Minn.) 75 N. W. 373 220
Hipp v. Railway Co., 50 S. C. 129, 27 S. E. 623 288
Hirsch v. The Quaker City, 2 Disn. (Ohio; 144 287
Hirschsohn v. Packet Co., 34 N. Y. Super. Ct 521 269
Hirshberg v. Dinsmore, 12 Daly (N. Y.) 429 251
Hite v. Blandford, 45 111. 9 366
Hoadley v. Transportation Co., 115 Mass. 304 24, 225, 238, 253, 254
Hoag v. Railroad Co., 85 Pa. St. 293 10
Hoar v. Merritt, 62 Mich. 386, 390, 29 N. W. 15 136, 137
v. Railroad Co., 70 Me. 65 187, 191
Hobbs v. Railway Co., 49 Ark. 357, 5 S. W. 586 187
L. R. 10 Q. B. Ill 210
Hobdy v. Margotto, 4 Lack. Leg. News, 17 158
Hobson v. Railroad Co., 11 Pac. 545 145
Hoby v. Built, 3 Barn. & Adol. 350 371
Hocum v. Weitherick, 22 Minn. 152 84. 85
Hodge v. Railroad Co., 27 Hun (N. Y.) 394 346
Hodges v. Wheel Co. (Ind. Sup.) 52 N. E. 391 147
Hodgkins v. Railroad Co., 119 Mass. 419 149
Hoeger v. Railway Co., 63 Wis. 100, 23 N. W. 435 289
Hoff v. Railroad Co., 45 N. J. Law, 201 355
Hcffbauer v. Railroad Co., 52 Iowa, 342, 3 N. W. 121 184, 196
Hoffman v. Railroad Co., 67 Hun, 581, 22 N. Y. Supp. 463 334
56 Pac. (Kan. App.) 331 334
85 Md. 391, 37 Atl. 214 290
v. Water Co., 10 Cal. 413 32
Hofnagle v. Railroad Co.. 55 N. Y. 608 4
Hogan v. Railroad Co., 53 Fed. 519 123
Hoggard v. Monroe (La.) 25 South. 349 444
Hogue v. Railroad Co., 32 Fed. 365 407
Holden v. Coke Co., 3 C. B. 1 35
v. Railroad Co., 129 Mass. 268, 271 137
Holdridge v. Railroad Co.. 56 Barb. (N. Y.) 191 289
Hole v. Railroad Co., 6 Hurl. & N. 488 164, 165
CASES CITED. 519
Page
Holladay v. Kennard, 12 Wall. 254 229, 230
Holland v. Anthony, 19 R. I. 216, 36 Atl. 2 384
Holley v. Mix. 3 Wend. (X. Y.) 350 383
Hollis v. Brown, 33 Am. Law Reg. 114, 115, 159 Pa. St. 539, 28 Atl. 360 315
Hollister v. Xowlen, 19 Wend. (N. Y.) 234, 247. . .191, 216, 218, 231, 254-256, 267
Hollrnan v. City of Platteville, 101 Wis. 94, 76 N. W. 1119 441
Holman v. Kempe, 70 Minn. 422, 73 X. W. 186 141
Holmes v. Peck, 1 R. I. 242 372
v. Railroad Co., 97 Cal. 161, 31 Pac. 834 38
5 Fed. 523 402
L. R. 4 Exch. 254 129, 211
49 La. Ann. 1465, 22 South. 403 158
48 Mo. App. 79 5
v. Traction Co., 153 Pa. St 152, 25 Atl. 640 205
v. Wakefield, 12 Allen (Mass.) 580 185
Holt v. Whatley, 51 Ala. 569 85
Holton v. W T aller, 95 Iowa, 545, 64 N. W. 633 315
Holtzclaw v. Duff, 27 Mo. 392 288
Holtzman v. Hoy, 118 111. 534, 8 N. E. 832 379
Holyoke v. Railway Co., 48 N. H. 541 206
Holzab v. Railroad Co., 38 La. Ann. 185 207
Home Ins. Co. v. Railroad Co., 11 Hun (N. Y.) 182 353
Homer v. Everett, 47 N. Y. Super. Ct 298 304
Honegsberger v. Railroad Co., 2 Abb. Dec. (N. Y.) 378 63
Honey v. Railway Co., 59 Fed. 423 61
Honeyman v. Railroad Co., 13 Or. 332, 10 Pac. 628 271
Honner v. Railroad Co., 15 111. 550 130
Hood v. Railroad Co., 22 Conn. 1, 502 182, 292, 294
Hooker v. Railway Co., 76 Wis. 542, 44 N. W. 1085 50
Hooper v. Wells, Fargo & Co., 27 Cal. 11 218, 253
Hope v. Railroad Co., 40 Hun (N. Y.) 438 54
Hopkins v. Westcott, 6 Blatchf. 64, Fed. Cas. No. 6,692 248, 260, 270
Hoppe v. Railway Co., 61 Wis. 357, 359, 21 N. W. 227 63, 410
Hopping v. Quin, 12 Wend. (N. Y.) 517 374
Horton v. Mayor, etc., 4 Lea (Tenn.) 39 450
v. Newell, 17 R. I. 571, 23 Atl. 910 441
Hoth v. Peters, 55 Wis. 405, 13 N. W. 219 84
Hotiok v. Railway Co., 38 Fed. 226 195
Houfe v. Town of Fulton, 34 Wis. 608 446
Hough v. Railway Co.. 100 U. S. 213 84, SO, 91, 92, 117, 120, 132
Houghkirk v. Canal Co., 92 N. Y. 219 411
28 Hun (X. Y.) 407 409
Houlden v. Smith, 14 Q. B. 841 380
Hourigan v. Xowell, 110 Mass. 470 369
House v. Metcalf , 27 Conn. 631 313
Houseman v. Transportation Co., 104 Mich. 300, 62 X. W. 290 235
Houston v. Traphagen, 47 N. J. Law, 23 309
Houston, E. & W. T. Ry. Co. v. Xorris (Tex. Civ. App.) 41 S. W.
70S 41, 196, 204, 206
520 CASES CITED.
Page
Houston, E. & W. T. Ry. Co. v. Richards (Tex. Civ. App.) 49 S. W.
687 202, 204
v. Rogers (Tex. Civ. App.) 40 S. W. 201 210
Houston & T. C. Ry. Co. v. Arey (Tex. Civ. App.) 44 S. W. 894 199
v. Burke, 55 Tex. 323 239
v. Carson, 66 Tex. 345, 1 S. W. 107 51
v. Clemmons, 55 Tex. 88 19G
v. Conrad, 62 Tex. 627 109
v. Cowser, 57 Tex. 293 410, 411
v. Dotson (Tex. Civ. App.) 38 S. W. 642 180
v. Ford, 53 Tex. 364 199
v. Hampton, 64 Tex. 427 188
v. Laskowski (Tex. Civ. App.) 47 S. W. 59 325, 340
v. Moore, 49 Tex. 31 187, 191
v. Nixon, 52 Tex. 19 328
v. O'Neal (Tex. Civ. App.) 45 S. W. 921 85
v. Park, 1 White & W. Civ. Cas. Ct. App. 332 293
v. Patterson (Civ. App.) 48 S. W. 747 150
v. Pereira (Tex. Civ. App.) 45 S. W. 767 334
v. Reason, 61 Tex. 613 78
v. Rogers (Tex. Civ. App.) 30 S. W. 1112 328
v. Sgalinski (Tex. Civ. App.) 46 S. W. 113 32
v. Simpson, 60 Tex. 103 67
v. Smith, 52 Tex. 178 78
v. Stuart (Civ. App.) 48 S. W. 799 150
v. Sympkins, 54 Tex. 615 78
v. Washington (Tex. Civ. App.) 30 S. W. 719 193
Hovenden v. Railroad Co., ISO Pa. St. 244, 36 Atl. 731 335
Hovey v. Mayo, 43 Me. 322 438
Howard v. Canal Co., 40 Fed. 195 412
v. City and County of San Francisco, 51 Cal. 52 452
v. City of Worcester, 153 Mass. 426, 27 N. E. 11 440
v. Doolittle, 3 Duer (N. Y.) 464 315
v. Grover, 28 Me. 97 378
v. Railroad Co., 32 Minn. 214, 20 N. W. 43 325
Howard, The, v. Wissman, 18 How. 231 234
Howd v. Railroad Co., 50 Miss. 178 148
Howe v. Ohmart, 7 Ind. App. 32, 33 N. E. 466 18
v. Railroad Co., 62 Minn. 71, 64 N. W. 102 330, 337
Howell v. Com'rs, 121 N. C. 362, 28 S. E. 362 401
Hower v. Ulrich, 156 Pa. St. 410, 27 Atl. 37 171, 172
Howland v. Inhabitants, 159 Mass. 434, 34 N. E. 515 444
Hoy v. Sterrett, 2 Watts (Pa.) 327 318
Hoyle v. Laundry Co., 95 Ga. 34, 21 S. E. 1001 Ill
Hoyt v. City of Danbury, 69 Conn. 341, 37 Atl. 1051 432, 433
v. Jeffers, 30 Mich. 181 352
Hrebrik v. Carr, 29 Fed. 298 209
Hubbard v. Express Co., 10 R. I. 244 219, 229
v. Railroad Co., 162 Mass. 132, 38 N. E. 366 334, 337
CASES CITED. 521
Page
Huber v. Jackson & Sharp Co., 1 Marv. 374, 41 Atl. 92 90, 91, 109, 121
Huberwald v. Railroad Co., 50 La. Ann. 477, 23 South. 474 404
Hudon v. City of Little Falls, 68 Minn. 463. 71 N. W. 678 434
Hudson v. Houser, 123 Ind. 309, 24 N. E. 243 407, 419
v. Railway Co., 92 Iowa, 231, 60 N. W. 608 234. 239
123 Mo. 445, 27 S. \V. 717 335
Hudston v. Railroad Co., 10 Best & S. 504 271
Huff v. Ames, 16 Neb. 139, 19 N. W. 623 71
v. Ford, 126 Mass. 24 156
Hufford v. Railway Co., 53 Mich. 118, 18 X. W. 580 198, 199
Hughes v. City of Lawrence, 160 Mass. 474, 36 N. E. 485 437
v. Improvement Co., 55 Pac. 119 150
v. Macfie, 2 Hurl. & C. 744 70
v. Railway Co., 39 Ohio St. 461 161
Hughson v. Railroad Co., 2 App. D. C. 98 129
9 App. D. C. 98 190
Hulbert v. Railroad Co., 40 N. Y. 145 179, 208
Hulett v. Railroad Co., 67 Mo. 239 109
Hull v. Railway Co., 41 Minn. 510, 43 N. W. 391 239
Hume v. City of New York, 47 N. Y. 639 438
Humphrey v. Hathorn, 24 Barb. (N. Y.) 278 : 381, 382
Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711 273
v. Reed, 6 Whart. (Pa.) 435 216
Hunn v. Railroad Co., 78 Mich. 513, 44 N. W. 502 136, 412, 413
Hunnewell v. Taber, 2 Spr. 1, Fed. Cas. No. 6,880 223
Hunt v. City of Boonville, 65 Mo. 620 445
v. Gaslight Co., 1 Allen (Mass.) 343 53
v. Railroad Co., 14 Mo. App. 160 19, 26
Hunter v. Bridge, 29 C. C. A. 206, 85 Fed. 379 146
v. Caldwell, 10 Q. B. 69 , 375
v. Pelham Mills, 52 S. C. 279, 29 S. E. 727 319
v. Railway Co. (Mont.) 57 Pac. 140 328
Huntingdon & B. T. R. Co. v. Decker, 84 Pa. St. 419 97
Huntington v. Dinsmore, 4 Hun (N. Y.) 66, 6 Thomp. & C. (N. Y.) 195 257
v. Rumnill, 3 Day (Conn.) 390 375
Huntley v. Bulwer, 6 Bing. N. C. Ill 374
Huntress, The, 2 Ware, 89 (Dav. 82), Fed. Cas. No. 6,914 232
Huntress v. Railroad Co., 66 N. H. 185, 34 Atl. 154 340
Huntsinger v. Trexler, 181 Pa. St. 497, 37 Atl. 574 97
Hurford v. City of Omaha, 4 Neb. 336 439
Hurst v. Railroad Co., 49 Iowa, 76 171
84 Mich. 539, 48 N. W. 44 395. 415, 416
Hurt v. Railway Co., 94 Mo. 255, 7 S. W. 1 ISO, 181
Hurwitz T. Packet Co. (City Ct. N. Y.) 56 N. Y. Supp. 379 271, 289
Hussey v. The Saragossa, 3 Woods, 380, Fed. Cas. No. 6.949 218
Huston v. City of Council Bluffs, 101 Iowa, 33, 69 N. W. 1130 432. 434
Hutchings v. Inhabitants, 90 Me. 131, 37 Atl. 883 432, 437
v. Railroad Co., 25 Ga. 61 270, 271
Hutchins v. Railway Co., 44 Minn. 5, 46 X. W. 79 401, 405, 411, 414
522 CASES CITED.
Page-
Hutchinson v. guion, 28 Law J. C. P. 63, 5 C. B. (N. S.) 149 223
v. Railway Co. (1850) 5 Exch. 343 124
37 Minn. 524, 35 N. W. 433 232
Hutson v. King, 95 Ga. 271, 22 S. E. 615 49, 309-
Button v. Windsor, 34 U. C. Q. B. 487 407
Huyett v. Railroad Co., 23 Pa. St. 373 354
Hyatt v. Railroad Co., 19 Mo. App. 287 121
v. Trustees, 44 Barb. (N. Y.) 385 449-
Hyde v. Kiehl, 183 Pa. St. 414, 38 Atl. 998 383
v. Navigation Co., 5 Term R. 389 215, 227, 283
Hyer v. City of Janesville, 101 Wis. 371, 77 N. W. 729 434
Hygienic Plate Ice Mfg. Co. v. Railroad Co., 122 N. C. 881, 29 S. E. 575. .. 8T
Hysore v. Quigley, 9 Houst. 348, 32 Atl. 960 316
I
Idaho, The, 93 U. S. 575 29T
Idel v. Mitchell, 158 N. Y. 134, 52 N. E. 740 317
Ihl v. Railroad Co., 47 N. Y. 317 63, 64, 68, 72, 409, 415
Illick v. Railroad Co., 67 Mich. 632, 35 N. W. 708 116
Illidge v. Goodwin, 5 Car. & P. 190 11, 25, 27
Illinois Cent. R. Co. v. Able, 59 111. 131 180
v. Adams, 42 111. 474 222, 244
v. Andrews, 78 111. App. 80 .< 155, 158-
v. Axley, 47 111. App. 307 188
v. Baches, 55 111. 379 412
v. Barren, 5 Wall. 90, 95 405, 412, 414
v. Bauer, 66 111. App. 124 184
v. Beebe, 174 111. 13, 50 N. E. 1019 202, 212
v. Benton, 69 111. 174 323
v. Brelsford, 13 111. App. 251 234
v. Buckner, 28 111. 299 75, 33$
v. Carter, 62 111. App. 618 285
165 111. 570, 46 N. E. 374 283
v. Chambers, 71 111. 519 180
v. Copeland, 24 III. 332 182, 270, 293, 295
v. Cox, 21 111. 20 128-130
v. Cragin, 71 111. 177 76, 401, 402
v. Downey, 18 111. 259 169
v. Finnigan, 21 111. 646 54
v. Frankenberg, 54 111. 88 293, 295
v. Frelka, 110 111. 498 189, 211
v. Gilbert, 51 111. App. 404 93
v. Hall, 58 111. 409 232
v. Hilliard (Ky.) 37 S. W. 75 147
v. Hoffman, 67 111. 287 51, 211, 338
v. Hutchinson, 47 111. 408 78
v. Johnson, 34 111. 3S9 293, 295
v. Jones, 11 111. App. 324 91
CASES CITED. 523
Page
Illinois Cent. E. Co. v. Jones, 16 South. (Miss.) 300 148
v. Jonte, 13 111. App. 424 258
v. Kerr, 68 Miss. 14, 8 South. 330 292, 293
v. McCalip (Miss.) 25 South. 166 31
v. McClelland, 42 111. 355 354, 359
v. McCowan, 70 111. App. 345 135
v. McKee, 43 111. 119 348
v. Marlett, 75 Miss. 956, 23 South. 583 183, 196, 199
V. Mills, 42 111. 407, 408 353, 355, 357
V. Morrison, 19 111. 136 244
v. Phelps, 29 111. 447 343
V. Phillips, 49 111. 234 204
v. Head, 37 111. 484 212, 244
v. Scruggs, 69 Miss. 418, 13 South. 698 266
v. Slater, 129 111. 91, 21 N. E. 575 409
28 111. App. 73 412, 41S
v. Smyser, 38 111. 354 244, 279, 28O
v. Swearingen, 33 111. 289 347
v. Swisher, 53 111. App. 411 Ill
v. Taylor, 46 111. App. 141 181
v. Treat, 75 111. App. 327 208
v. Weldon, 52 111. 290 407
v. Whittemore, 43 111. 420 179, 184, 185, 201
Illinois & St. L. R. Co. v. Whalen, 19 111. App. 116 411
Ilott v. Wilkes, 3 Barn. & Aid. 304 30$
Imhoff v. Railway Co., 20 Wis. 344 179
Ince v. Ferry Co.. 106 Mass. 149 35
Independence Mills Co. v. Railway Co., 72 Iowa, 535, 34 N. W. 320 288
Indiana, B. & W. Ry. Co. v. Burdge, 94. Ind. 46 8
v. Craig, 14 111. App. 407 354
v. Greene, 106 Ind. 279, 6 N. E. 603 87
Indiana Car Co. v. Parker, 100 Ind. 181 146
Indiana Cent. Ry. Co. v. Hudelson, 13 Ind. 325 178
v. Mundy, 21 Ind. 48 212
Indiana, I. &. I. Ry. Co. v. Doremeyer, 20 Ind. App. 605, 50 N. E. 497 232
v. Snyder, 140 Ind. 647, 39 N. E. 912 147
Indiana Pipe-Line & Refining Co. v. Neusbaum, 21 Ind. App. 559, 52 N. E.
471 94
Indianapolis, B. & W. Ry. Co. v. Carr, 35 Ind. 510 41
v. Strain, 81 111. 504 245
Indianapolis, P. & C. R. Co. v. Keely's Adm'r, 23 Ind. 133 403, 416
v. Pitzer, 109 Ind. 179, 6 N. E. 310, 10 N. E. 70 206
v. Rinard, 46 Ind. 293 191
v. Shinier, 17 Ind. 295 348
Indianapolis Union Ry. Co. v. Ott, 11 Ind. App. 564, 35 N. E. 517, 38 X. E.
842 121
Indianapolis & C. R. Co. v. Cox, 29 Ind. 360, 95 Am. Dec. 640 258-
v. Parker. 29 Ind. 471 347
v. Rutherford, 29 Ind. 82 86
-524 CASES CITED.
Page
Indianapolis & C. R. Co. v. Townsend, 10 Ind. 38 % . 345
Indianapolis & St. L. R. Co. v. Galbreath, 63 111. 436 ". 326
v. Horst, 93 U. S. 291 84, 191, 202
v. Smith, 78 111. 112 326
v. Stout, 53 Ind. 143 326
Indiana Stone Co. v. Stewart, 7 Ind. App. 563, 34 N. E. 1019 38
Indiana & C. R. Co. v. Paramore, 31 Ind. 143 353
Ingalls v. Bills, 9 Mete. (Mass.) 1 29, 54, 203
Ingebretsen v. Steamship Co. (N. J. Err. & App.) 31 Atl. 619 148
Ingersoll v. Railroad Co., 8 Allen (Mass.) 438 209, 352
Ingwersen v. Rankin, 47 N. J. Law, 18 314
Inhabitants of Norton v. Inhabitants, 16 Mass. 48 444
Inhabitants of Plantation No. 4 v. Hall, 61 Me. 517 294
Inhabitants of Shrewsbury v. Smith, 12 Gush. (Mass.) 177 319
Inhabitants of Yarmouth v. Inhabitants, 34 Me. 411 424
Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653. . 37
Inman v. Tripp, 11 R. I. 520 444
International & G. N. Ry. Co. v. Anderson, 3 Tex. Civ. App. 8, 21 S. W.
691 236, 292
v. Bonatz (Tex. Civ. App.) 48 S. W. 767 151
v. Cooper, 88 Tex. 607, 32 S. W. 517 158
v. Davis (Tex. Civ. App.) 43 S. W. 54.0 188
v. Dunham, 68 Tex. 231, 4 S. W. 472 209
v. Eckford, 71 Tex. 274, 8 S. W. 679 180
v. Foltz, 3 Tex. Civ. App. 644, 22 S. W. 541 296
v. Gilmer (Tex. Civ. App.) 45 S. W. 1028 206
v. Halloren, 53 Tex. 46 23
v. Hynes, 3 Tex. Civ. App. 20, 21 S. W. 622 23, 236
v. Kindred, 57 Tex. 491 397, 413
T. Kuehn, 11 Tex. Civ. App. 21, 31 S. W. 322 36
v. Mclver (Tex. Civ. App.) 40 S. W. 438 14
v. Miller, 9 Tex. Civ. App. 104, 28 S. W. 233 158
v. Newman (Tex. Civ. App.) 40 S. W. 854 356
v. Parish (Tex. Civ. App.) 43 S. W. 1066 239
v. Ryan, 82 Tex. 565, 18 S. W. 219, 221 133, 149
v. Satterwhite (Tex. Civ. App.) 38 S. W. 401; 47 S. W. 41 211
v. Sipole (Tex. Civ. App.) 29 S. W. 686 150
v. Smith (Tex. Sup.) 14 S. W. 642 180
30 S. W. (Tex. Civ. App.) 501 106
v. Terry, 62 Tex. 380 180
v. Timmermann, 61 Tex. 660 357
v. Tisdale, 74 Tex. 8, 11 S. W. 900 235, 292, 293
v. Underwood, 62 Tex. 21 251
T. Welch, 86 Tex. 203, 24 S. W. 391 202
v. Wentworth, 8 Tex. Civ. App. 5, 27 S. W. 6SO 224, 226, 236
v. Wilkes, 68 Tex. 617, 5 S. W. 491 201
v. Wolf, 3 Tex. Civ. App. 383, 22 S. W. 187 296
T. Yarbrough (Tex. Civ. App.) 39 S. W. 1096 158
v. Zapp (Tex. Civ. App.) 49 S. W. 673 .151
CASES CITED. 525
Pagfr
Ionic, The, 5 Blatchf. 538, Fed. Cas. No. 7,059 231, 271
Irish v. Railway Co., 19 Minn. 376 (Gil. 323) 29
Iron Mountain R. Co. v. Dies, 98 Tenn. 655, 41 S. "W. 8GO 32
Iron R. Co. v. Mowery, 36 Ohio St. 418 40
Irvin v. Railway Co. (Tex. Civ. App.) 42 S. W. 661 a
Irvine v. Mayor, etc. (Tenn. Sup.) 47 S. W. 419 450
Isaacs v. Railroad Co., 47 X. Y. 122 170
Isaacson v. Railroad Co., 94 N. Y. 278 258, 291
Isabel v. Railroad Co., 60 Mo. 475 62, 63
Isabella, The, 8 Ben. 139, Fed. Cas. No. 7,099 257
Isbell v. Railroad Co., 27 Conn. 393 51, 338, 342, 343
Iseman v. Railroad Co., 52 S. C. 566, 30 S. E. 488 184
Isham v. Parker, 3 Wash. St. 755, 29 Pac. 835 372
Izett y. Mountain, 4 East, 371 238
J
Jackson v. City of Greenville, 72 Miss. 220, 16 S. W. 382 436
7. Railway Co., 23 Cal. 268 288
31 Iowa, 176 353, 354
87 Mo. 422 39&
118 Mo. 199, 24 S. W. 192 202
25 Vt. 150 343
43 W. Va. 380, 27 S. E. 278, 31 S. E. 258 150
v. Telephone Co., 88 Wis. 243, 60 N. W. 430 22, 24
Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665..217, 220-
Jacksonville S. E. Ry. Co. v. Southworth, 135 111. 250, 25 N. E. 1093 5
Jacksonville, T. & K. W. Ry. Co. v. Galvin, 29 Fla. 636, 11 South. 231 108-
v. Mfg. Co., 27 Fla. 1, 157, 9 South. 661 10
Jacobs v. Tutt, 33 Fed. 412 272, 289
Jacobus v. Railway Co., 20 Minn. 125 (Gil. 110) 190, 212
Jaffe v. Harteau, 56 N. Y. 398 315
Jagger v. Bank, 53 Minn. 386, 55 N. W. 545 100
James v. Christy, 18 Mo. 162 391
v. Griffin, 2 Mees. & W. 623 298
v. Railroad Co., 92 Ala. 231, 9 South. 335 415-
James' Adm'r v. McMinimy, 93 Ky. 471, 20 S. W. 435 166
Jamison v. Railroad Co., 55 Cal. 593 208
v. Weaver, 81 Iowa, 212, 46 N. W. 996 373
Jaques v. Mfg. Co., 66 N. H. 482, 22 Atl. 552 133, 148
Jardine v. Cornell, 50 N. J. Law, 485, 14 Atl. 590 186.
Jarnek v. Dock Co., 97 Wis. 537, 73 N. W. 62 151
Jefferson v. Jameson & Morse Co., 60 111. App. 587 316
165 111. 138, 46 N. E. 272 161
Jefferson R. Co. v. Cleveland, 2 Bush (Ky.) 468 287
Jeffersonville, M. & I. R. Co. v. Bowen, 40 Ind. 545 66
v. Hendricks, 41 Ind. 49 403, 416, 417, 420
v. Riley, 39 Ind. 5G8, 584 179, 206-
526 CASES CITED.
Page
Jeffersonville R. Co. v. Swayne's Adm'r, 26 Ind. 477 401, 402
Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518 365
v. Railroad Co., 56 Iowa, 546, 9 N. W. 884 42
Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. Xo. 7,258 192
v. Railroad Co., 33 App. Div. 635, 53 N. Y. Supp. 623 330
Jenkins v. McGill, 4 How. Prac. (N. Y.) 205 382
v. Railway Co., 41 Wis. 112 187
v. Turner, 1 Ld. Raym. 109 364
Jenkinson v. Carlin, 10 Misc. Rep. 22, 30 N. Y. Supp. 530 133
Jenks v. Fulmer, 160 Pa. St. 527, 28 Atl. 841 298
Jenney Electric Light & Power Co. v. Murphy, 115 Ind. 566, 18 N. E. 30 112
Jennings v. Iron Bay Co., 47 Minn. Ill, 49 N. W. 685 96
v. Railway Co. (Sup.) 5 N. Y. Supp. 140 252
93 Pa. St. 337 358
v. Van Schaick, 108 N. Y. 530, 15 N. E. 424 42
Jensen v. City of Waltham, 166 Mass. 344, 44 N. E. 339 443
v. The Joseph B. Thomas, 81 Fed. 578 18, 21, 151
v. Railroad Co., 102 Mich. 176, 60 N. W. 57 337
Jewell v. Railway Co., 55 X. H. 84 156
Jewett v. Keene, 62 N. H. 701 421
v. Olsen, 18 Or. 419, 23 Pac. 262 233
Joch v. Dankwardt, 85 111. 331 98
Joel v. Morrison, 6 Car. & P. 501 173
Johanson v. Fuel Co. (Minn.) 75 N. W. 719 170
Johnson v. Bank, 79 Wis. 414, 48 X. W. 712 151
v. Brice (Wis.) 78 N. W. 1086 388
v. City of Boston, 118 Mass. 114 129
v. City of Milwaukee, 46 Wis. 568, 1 X. W. 187 437
v. Improvement Co., 13 Wash. 455, 43 Pac. 370 85
v. Mining Co., 16 Mont. 164, 40 Pac. 298 91
v. Xavigation Co., 132 N. Y. 576, 30 N. E. 505 128
v. Patterson, 14 Conn. 1 308
V. Railroad Co., 104 Ala. 241, 16 South. 75 77, 185
6 Duer (N. Y.) 633; 20 N. Y. 64, 65 84, 322, 323
16 Fla. 623 200
90 Ga. 810, 17 S. E. 121. 234
61 111. App. 522 78
- 58 Iowa, 348, 12 N. W. 329 169
27 La. Ann. 53 51
63 Md. 106 179, 200
125 Mass. 75 179
43 Minn. 53, 44 N. W. 884 115
43 Minn. 207, 45 X. W. 152 341
67 Minn. 260, 69 N. W. 900 73
33 N. Y. 610 224, 291
7 N. D. 284, 75 N. W. 250 327
70 Pa. St. 357 21, 182
53 S. C. 303, 31 S. E. 212 211
2 Tex. Civ. App. 139, 21 S. W. 274 32
CASES CITED. 527
Page
Johnson v. Railroad Co., 36 W. Va, 73, 14 S. E. 432 150
64 Wis. 425, 25 N. W. 223 412
v. Railroad Corp., 46 N. H. 213 108, 199
v. Randall (Minn.) 76 N. W. 791 '382
v. Schlosser, 146 Ind. 509, 45 X. E. 702, 36 Lawy. Rep. Ann. 59 38b
v. Snuff Co. (N. J. Err. & App.) 41 Atl. 936 108
v. Spear, 76 Mich. 139, 42 N. W. 1092 128
v. Telephone Exch. Co., 48 Minn. 433, 51 N. W. 225 18, 19
v. Tow-Boat Co., 135 Mass. 209 138
Johnson's Adm'r v. Railway Co., 91 Va. 171, 21 S. E. 238 332
Johnson's Adm'x v. Railroad Co., 84 Va. 713, 5 S. E. 707 150
Johnston v. Davis, 60 Mich. 56, 26 N. W. 830 284
v. District, 1 Mackey (D. C.) 427 429
v. Railroad Co., 7 Ohio St. 336 415
Joliet Steel Co. v. Shields, 134 111. 209, 25 N. E. 569 130
Jolly's Adm'x v. City of Hawesville, 89 Ky. 279, 12 S. W. 313 443
Jones v. Boyce, 1 Starkie, 493 40
v. City of Liverpool, 14 Q. B. Div. 890 448
v. City of New Haven, 34 Conn. 1 425, 436, 454
v. Fay, 4 Post & F. 525, 526 378
v. File Co. (R. I.) 42 Atl. 509 121
v. Gilmore, 91 Pa. St. 310, 314 225
v. Glass, 35 N. C. 305 169
v. Granite Mills, 126 Mass. 84 91
v. Inhabitants, 10 Allen (Mass.) 18, 20 47
v. Lamon, 92 Ga. 529, 18 S. E. 423 383
y. Railroad Co., 107 Ala. 400, 18 South. 30 37
28 Hun (N. Y.) 364 88
36 Hun (N. Y.) 115 66
163 Mass. 245, 39 N. E. 1019 177
59 Mo. App. 137 346
125 Mo. 666, 28 S. W. 883 148, 190
70 N. C. 626 344
(La.) 26 South. 86 95
Y. Shaw (Tex. Civ. App.) 41 S. W. 690 91
v. Transportation Co., 50 Barb. (N. Y.) 193 289
v. Voorhees, 10 Ohio, 145 254
v. Vroom, 8 Colo. App. 143, 45 Pac. 234 377
Jonesboro & F. Turnpike Co. v. Baldwin, 57 Ind. 86 86
Jordan v. Railroad Co., 5 Gush. (Mass.) 69 270
v. Wyatt, 4 Grat. (Va.) 151 350
Jordin v. Crump, 8 Mees. & W. 782 308
Joslin v. Ice Co., 50 Mich. 516, 15 N. W. 887 173
Joy v. Morgan, 35 Minn. 184, 28 N. W. 237 373
Joyce v. Capel, 8 Car. & P. 370 157
v. Martin, 15 R. I. 558, 10 Atl. 620 313, 314
Jucker v. Railway Co., 52 Wis. 150, 8 N. W. 862 399
Judson v. Railroad Co., 158 N. Y. 597, 53 N. E. 514 330
v. Railroad Corp.. 4 Allen (Mass.) 520 280
528 CASES CITED.
Page
Judson v. Railroad Corp., 6 Allen (Mass.) 486 256, 26O
v. Railway Co., 63 Minn. 248, 65 N. W. 447 330, 337, 338
Jung v. Starin, 12 Misc. Rep. 362, 33 N. Y. Supp. 650 19, 25
Jungnitsch v. Iron Co., 105 Mich. 270, 63 N. W. 296 97
Justice v. Pennsylvania Co., 130 Ind. 321, 30 N. E. 303 146
K
Kain v. Smith, 80 N. Y. 458 102
89 N. Y. 375 118
Kaiser v. Hoey (City Ct. N. Y.) 1 N. Y. Supp. 429 251
v. McLean, 20 App. Div. 326, 46 N. Y. Supp. 1038 169
Kalbfleisch v. Railroad Co., 102 N. Y. 520, 7 N. E. 557 359
Kallman v. Express Co., 3 Kan. 205 219
Kammerer v. Gallagher, 58 111. App. 561 82
Kansas Cent Ry. Co. v. Fitzsimmons, 22 Kan. 686 69
Kansas City, Ft. S. & G. R. Co. v. Morrison, 34 Kan. 502, 9 Pac. 225. . .269, 280
Kansas City, Ft. S. & M. R. Co. v. Cook, 13 C. C. A. 364, 66 Fed. 115 328
v. Daughtry, 88 Tenn. 721, 13 S. W. 698 398
v. Hammond, 58 Ark. 324, 24 S. W. 723 102
v. McGahey, 63 Ark. 344, 38 S. W. 659 289
v. Patten, 3 Kan. App. 338, 45 Pac. 108 289
Kansas City, L. & S. R. Co. v. Phillibert, 25 Kan. 405 84
Kansas City, M. & B. R. Co. v. Burton, 97 Ala. 240, 12 South. 88 25
v. Crocker, 95 Ala. 412 145
v. Higdon, 94 Ala. 286, 10 South. 282 271
v. Holland, 68 Miss. 351, 8 South. 516 253
v. Lackey, 114 Ala. 152, 21 South. 444 35
Kansas City, St. J. & C. B. R. Co. v. Rodebaugh, 38 Kan. 45, 15 Pac. 899. . 258
v. Simpson, 30 Kan. 645, 2 Pac. 821 248, 219, 266
Kansas City & P. R. Co. v. Ryan, 52 Kan. 637, 35 Pac. 292 91
Kansas Pac. Ry. Co. v. Butts, 7 Kan. 308 353
v. Cranmer, 4 Colo. 524 51
v. Cutter, 16 Kan. 568 403
19 Kan. 83 405, 414
v. Miller, 2 Colo. 442 203
v. Nichols, 9 Kan. 235 262
v. Pointer, 14 Kan. 37 80
v. Reynolds, 8 Kan. 623 219, 261
17 Kan. 251 252
v. Salmon, 14 Kan. 512 417
Kansas & A. V. Ry. Co. v. Ayers, 63 Ark. 331, 38 S. W. 515 266
Karahuta v. Traction Co., 6 Pa. Super. Ct. 319 64
Karle v. Railroad Co., 55 Mo. 476 328
Karr v. Parks, 40 Cal. 188 64, 70
Kastor v. Newhouse, 4 E. D. Smith (N. Y.) 20 311
Katcham v. Newman (1894) 141 N. Y. 205, 36 N. E. 197 158
Kaufhold v. Arnold, 163 Pa. St. 269, 29 Atl. 883 118
CASES CITED. 529
Page
Kay v. Railroad Co., 65 Pa. St. 269, 277 63, 323
Y. Thomson, 10 Am. Law Reg. (X. S.) 594 378
Kayser Y. Lindell (Minn.) 75 N. W. 1038 306
Kean v. Chenault (Ky.) 41 S. W. 24 344
Y. Railroad Co., 61 Md. 154 78
Kearney Y. Railroad Corp., 9 Cush. (Mass.) 108 398
Keating Y. City of Kansas City, 84 Mo. 415 450
Y. Railroad Co., 3 Lans. (N. Y.) 469 208
Keats v. Machine Co., 13 C. C. A. 221, 65 Fed. 940 105
Keefe v. Railroad Co., 92 Iowa, 182, 60 X. W. 503. * 38, 52
Keegan Y. Railroad Co., 34 App. DiY. 297, 54 N. Y. Supp. 391 202
Keffe Y. Railway Co., 21 Minn. 207, 210 69, 70, 306, 307
Keightlinger Y. Egan, 65 111. 235 364, 365
Keith Y. Coal Co., 81 Ga. 49, 7 S. E. 106 146
Kelham Y. The Kensington, 24 La. Ann. 100 219
Keller Y. Railroad Co., 27 Minn. 178, 6 N. W. 486 180
Kellerman v. Railroad Co., 136 Mo. 177, 34 S. W. 41, 37 S. W. 828 252
Kelley Y. City of Columbus, 41 Ohio St. 263 309
Y. City of Milwaukee, 18 Wis. 83 449, 451
v. City of Minneapolis (Minn.) 79 N. W. 653 437
v. Railroad Co., 48 Fed. 663 405
50 Wis. 381, 7 N. W. 291 407, 416
53 Wis. 74, 9 N. W. 816 87
Kellogg Y. City of New York, 15 App. DiY. 326, 44 N. Y. Supp. 39 437
Y. Railroad Co., 79 N. Y. 72 334, 414
26 Wis. 223, 281 16, 355
v. Village of JanesYille, 34 Minn. 132, 24 N. W. 359 432
Kelly Y. Cook (R. I.) 41 Atl. 571 442
v. Mayor, etc., 11 N. Y. 432 447
v. Railway Co., 70 Mo. 604 87
112 X. Y. 443, 20 X. E. 383 207
Y. Transit Co., 95 Mo. 279, 8 S. W. 420 51
Kelsay Y. Railway Co., 129 Mo. Sup. 362, 30 S. W. 339 340
Kelsey Y. Barney, 12 N. Y. 425 2
KelYer v. Railroad Co., 126 X. Y. 365, 27 N. E. 553 345
Kernber v. Express Co., 22 La. Ann. 158 257
Keinper Y. City of LouisYille, 14 Bush (Ky.) 87 438
Kendall v. Brown, 86 111. 387 379
Keunard v. Burton, 25 Me. 39 37, 63
Kennayde Y. Railroad Co., 45 Mo. 255 415
Kennedy v. Burrier, 36 Mo. 128 421
v. City of Xew York, 18 Misc. Rep. 303, 41 X. Y. Supp. 1077 437
v. Iron Works, 12 Misc. Rep. 336, 33 X. Y. Supp. 630 133
v. Railroad Co., 74 Ala. 430 288
33 Hun CS T . Y.) 457 109
145 X. Y. 288, 39 X. E. 956 112
v. Ryall, 67 N. Y. 379 370
Kenney Y. Railroad Co., 49 Hun, 535, 2 N. Y. Supp. 512 415
70 Mo. 243 356
BAR.XEG 34
530 CASES CITED.
Page
Kenney v. Railroad Co., 125 N. Y. 422, 26 N. E. 626 213
Kent v. Board, 10 Q. B. Div. 118 455
Kentucky Cent. R. Co. v. Gastineau's Adni'r, 83 Ky. 119 6
Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010 67
Kenworthy 'v. Town of Irontown, 41 Wis. 647 425
Keokuk Northern Line Packet Co. v. True, 88 111. 608 179
Keown v. Railroad Co., 141 Mo. 86, 41 S. W. 926 89
Kepler v. Jessupp, 11 Ind. App. 241, 37 N. E. 655 372
Keppleman v. Railway Co. (Pa. Sup.) 42 Atl. 697 335
Ker v. Mountain, 1 Esp. 27 193
Kerns v. Railway Co., 94 Iowa, 121, 62 N. W. 692 103
Kerr v. Forgue. 54 111. 482 67, 69
v. Willan, 6 Maule & S. 150, 2 Starkie, 53 256
Kerrigan v. Railroad Co., 81 Cal. 248, 22 Pac. 677 181
Kerwhaker v. Railroad Co.. 3 Ohio St. 172 3
Kessler v. Railroad Co., 61 N. Y. 538 182
Ketcham v. Newman, 141 N. Y. 205, 36 N. E. 197 158, 165, 167
Khron v. Brock, 144 Mass. 516, 11 N. E. 748 165
Kibele v. City of Philadelphia, 105 Pa. St. 41 42
Kidder v. Barker, 18 Vt. 454 382
Kies v. City of Erie, 169 Pa. St 598, 32 Atl. 621 440
Kiley v. City of Kansas, 87 Mo. 103 425, 449, 451
Killien v. Hyde, 63 Fed. 172 41
Kimball v. Cushnmn, 103 Mass. 194 155
v. Railroad Co., 26 Vt. 247, 256 217, 254, 262
Kincaid v. Railway Co., 1 Mo. App. Rep'r, 543, 62 Mo. App. 365 24
Kinchlow v. Elevator Co., 57 Ivan. 374, 46 Pac. 703 68, 309
King v. City of Kansas City, 58 Kan. 334, 48 Pac. 88 430
v. Fourchy, 47 La. Ann. 354, 16 South. 814 373
v. Jury, 12 La. Ann. 858 456
v. Railway Co. (Minn.) 79 N. W. 611 52
66 N. Y. 181 161
v. Richards, 9 Whart. (Pa.) 418 297
v. St. Laundry, 12 La. Ann. 858 454, 456
v. Shepherd, 3 Story, 349, Fed. Cas. No. 7,804 221, 228
v. Woodbridge, 34 Vt. 565 257
Kingman v. Denison, 84 Mich. 608, 48 N. W. 26 298
Kingsley v. Railroad Co., 125 Mass. 54 276
Kingston v. Railway Co., 112 Mich. 40, 70 N. W. 315, 74 N. W. 230 77
Kinnare v. Railway Co., 57 111. App. 153 81
Kinney v. City of Troy, 108 N. Y. 567, 15 N. E. 728 433
v. Koopman, 116 Ala. 310, 22 South. 593 369
v. Onsted, 113 Mich. 96, 71 N. W. 482 50, 306
Kinnick v. Railroad Co., 69 Iowa, 665, 29 N. W. 772 234, 262, 266
Kinsley v. Railroad Co., 125 Mass. 54 276, 277
Kirby v. Ass'n, 14 Gray (Mass.) 249 303
Kirchner v. Myers, 35 Ohio St. 85 400
Kirk v. Railway Co., 59 Minn. 161, 60 N. W. 1084 285, 287
CASES CITED. 531
Page
liirkland v. Dinsmore, 2 Hun (X. Y.) 46, 4 Thonip. & C. (N. Y.) 304 257
G2 X. Y. 171 250. 258
Kissenger v. Railroad Co., 56 N. Y. 538 325
Kistner v. City of Indianapolis, 100 Ind. 210 4.50
Kite-hell v. Railroad Co., 6 App. Div. 99, 39 X. Y. Supp. 741 67
Kitteringham v. Railway Co., 62 Iowa, 285, 17 X. W. 585 19
Kittredge v. Bellows. 7 X. H. 399 381
v. Elliott, 16 X. H. 77 363, 364
Klauber v. Express Co., 21 Wis. 21 222, 231
Klein v. Jewett, 26 X. J. Eq. 474 208
Kleineck v. Reiger (Iowa) 78 X. W. 39 367
Kleng v. City of Buffalo, 156 X. Y. 700, 51 X. E. 1091 434
Klinker v. Iron Co., 43 W. Va. 219, 27 S. E. 237 87
Knahtla v. Railway Co., 21 Or. 136, 27 Pac. 91 149
Knapp, Stout & Co. v. McCaffrey, 178 111. 107, 52 X. E. 898 217
Kuauss v. Brua, 107 Pa, St. 85 313
Knight v. Abert, 6 Pa. St. 472 306, 309
v. Fox, 5 Exch. 721 166
v. Luce, 116 Mass. 586 .' 169
v. Railroad Co., 23 La. Ann. 462; 56 Me. 234; 13 R. I. 572
182, 206, 208, 209, 294, 394
Knisley v. Pratt, 148 X. Y. 372, 42 N. E. 986 48
Knoop v. Alter, 47 La. Ann. 570, 17 South. 139 303
Knostnian & Peterson Furniture Co. v. City of Davenport, 99 Iowa, 589, 68
X. W. 887 429, 430
Knott v. Railroad Co., 98 X. C. 73, 3 S. E. 735 294
Knowles v. Bullene, 71 Mo. App. 341 158, 171
v. Railroad Co., 102 X. C. 59, 9 S. E. 7 186, 201
Knox v. Railway Co. (Tenn. Sup.) 47 S. W. 491 149
Knox Co. v. Montgomery, 109 Ind. 69, 9 X. E. 590 456
Knoxville, C. G. & K R. Go. v. Wyrick, 99 Tenn. 500, 42 S. W. 434 405
Knoxville Iron Co. v. Dobson, 7 Lea (Tenn.) 367 149
Knupfle v. Ice Co., 23 Hun, 159; 84 X. Y. 488 46
Kobs v. City of Minneapolis, 22 Minn. 160 425
Koehne v. Railway Co., 32 App. Div. 4J.9, 52 X. Y. Supp. 1088 202
Kohn v. Lovett, 44 Ga. 251 308, 310
Kolb v. Carringtou. 75 111. App. 159 134
Kollock v. City of Madison, 84 Wis. 458, 54 X. W. 725 164, 426
Kolsti v. Railway Co., 32 Minn. 133, 19 X. W. 655 306, 307
Kolzem v. Railroad Co. (Com. PI.) 1 Misc. Rep. 148, 20 X. Y. Supp. 700 174
Koons v. Railroad Co.. 65 Mo. 592 69, 395
Koosorowska v. Glasser (Super. Buff.) 8 X. Y. Supp. 197 413
Korrady v. Railway Co., 131 Ind. 261, 29 X. E. 1069 415, 417
Krai v. Railway Co., 71 Minn. 422, 74 X. W. 166 181
Kramer v. Railroad Co., 25 Cal. 434 4.00, 403
Kreger v. Bismarck Tp., 59 Minn. 3, 60 X. W. 675 441
Kreider v. Turnpike Co., 162 Pa. St. 537. 29 Atl. 721 40
Kreig v. Wells, 1 E. D. Smith (X. Y.) 74 66
Kreis v. Railway Co., 131 Mo. 533, 33 S. W. 64 , . 339
532 CASES CITED.
Page
Kremer v. Express Co., 6 Cold. (Tenn.) 356 283
Krenzer v. Railway Co., 151 Ind. 587, 52 N. E. 220 52
Krish v. Ford (Ky.) 43 S. W. 237 301
Krueger v. Railway Co., Ill Ind. 51, 11 N. E. 957 146
68 Minn. 445, 71 N. W. 683 183
Kucera v. Lumber Co., 91 Wis. 637, 65 N. W. 374 6S
Kudik v. Railroad Co., 78 Hun. 492, 29 N. Y. Supp. 533 103
Kuehn v. City of Milwaukee, 92 Wis. 263, 65 N. W. 1030 443
Kulm v. Railroad Co., 42 Iowa, 420 338, 347
Kuhns v. Railway Co., 76 Iowa, 67, 40 N. E. 92. 417
Kuter v. Railroad Co., 1 Biss. 35, Fed. Gas. No. 7,955 273
Kyle v. Railroad Co., 10 Rich. Law (S. C.) 382 294
L
Lack v. Seward, 4 Car. & P. 106 37
Lackawanna & B. R. Co. v. Chenewith, 52 Pa. St. 382 189
Laclouch v. Towle, 3 Esp. 115 297
Lacour v. Mayor, etc., 3 Duer (N. Y.) 406 433
Lacy v. Kossuth Co., 106 Iowa, 16, 75 N. W. 689 379
Lafayette & I. R. Co. v. Adams, 26 Ind. 76 326
v. Shriner, 6 Ind. 141 343
Laffrey v. Grummond, 74 Mich. 186, 41 N. W. 894 275
Lafitte v. Railroad Co., 43 La. Ann. 34, 8 South. 701 173
La Flamrne v. Railway Co., 109 Mich. 509, 67 N. W. 556 347
Lago v. Walsh, 98 Wis. 348, 74 N. W. 212 151
Laicher v. Railroad Co., 28 La. Ann. 320 37, 75
Laidler v. Elliott, 3 Barn. & C. 738 372
Laird y. McGeorge, 16 Misc. Rep. 70, 37 N. Y. Supp. 631 315
Lake v. Milliken, 62 Me. 240 18, 26
Lake Erie & W. R. Co. v. Acres, 108 Ind. 548, 9 N. E. 453 191
v. Beam, 60 111. App. 68 345
v. Fix, 88 Ind. 381 198
v. Gossard, 14 Ind. App. 344, 42 N. E. 818 358'
v. Hatch, 6 Ohio Cir. Ct. R. 230 287
52 Ohio St. 408, 39 N. E. 1042 287
v. Holderman, 56 111. App. 144 358
v. Mackey, 53 Ohio St. 370, 41 N. E. 980 335
v. Maus (Ind. App.) 51 N. E. 735 305
v. Middleton, 142 111. 550, 32 N. E. 453 126
v. Mugg, 132 Ind. 168, 31 N. E. 564 407
V. Norris, 60 111. App. 112 342
v. Weisel, 55 Ohio St. 155, 44 N. E. 923 348
Lake Shore & M. S. Ry. Co. v. Anthony, 12 Ind. App. 126, 38 N. E. 831. .334, 337
V. Bennett, 89 Ind. 457 229, 235
V. Bodemer, 139 111. 596, 29 N. E. 692 36
v. Boyts, 16 Ind. App. 640, 45 X. E. 812 31, 59
V. Elson, 15 111. App. 80 328
V. Foster, 104 Ind. 293, 4 N. E. 22 281
CASES CITED. 533
Page
Lake Shore & M. S. Ry. Co. v. Greenwood, 79 Pa. St. 373 256
v. Hodapp, 83 Pa, St. 22 232
v. Hunter, 13 Ohio Cir. Ct. R. 441, 7 Ohio Dec. 206 134
v. Knittal, 33 Ohio St. 468 103, 109
v. Lamphere, 9 Ohio dr. Ct R. 263 134
v. Lavalley, 38 Ohio St. 221 102
v. McCormick, 74 Ind. 440 91, 92
v. Mclntosh, 140 Ind. 261, 38 X. E. 476 25, 61
v. Miller, 25 Mich. 274 55, 57, 60, 75, 76, 82
v. Orndorff, 55 Ohio St. 589, 45 X. E. 447 184
v. Perkins, 25 Mich. 329 265
v. Rosenzweig, 113 Pa. St. 519, 6 Atl. 545 199
v. Stupak, 123 Ind. 210, 229, 23 X. E. 246 100
v. Sunderland, 2 111. App. 307 409
Lakeside & M. R. Co. v. Kelly, 10 Ohio Cir. Ct. R. 322, 3 Ohio Dec. 319 356
Lake Superior Iron Co. v. Erickson, 39 Mich. 492 129
Lalor v. Railway Co., 52 111. 401 123
Lamb v. Railway Co. (Mo. Sup.) 48 S. W. 659 328
v. Transportation Co., 46 X. Y. 271 219, 294
Lamphear v. Buckingham, 33 Conn. 237 '. 403, 416
Lancaster v. Insurance Co., 92 Mo. 460, 5 S. W. 23 165
Lancaster Ave. Imp. Co. v. Rhoads, 116 Pa. St. 377, 9 Atl. 852 164, 165
Landon v. Humphrey, 9 Conn. 209 376, 378
Lane v. Atlantic Works, 107 Mass. 104 26, 51, 338
111 Mass. 136 11, 18, 45
v. City of Lewiston, 91 Me. 292. 39 Atl. 999 43-t, 436
v. Cotton, 12 Mod. 473 153
v. Cox [1S97] 1 Q. B. 451 316
v. Railroad Co., 69 Iowa, 443, 29 X. W. 419 394
31 Kan. 525, 3 Pac. 341 348
132 Mo. 4. 33 S. W. 645 77
Lang v. Railroad Co., 80 Hun, 275, 30 X. Y. Supp. 137 174
154 Pa. St. 342, 26 Atl. 370 23, 222, 228
v. Transportation Line (Mich.) 77 X. W. 633 116
Langan v. Railway Co., 72 Mo. 392 42, 211
Langstaff v. Stix, 64 Miss. 171, 1 South. 97 298
Laning v. Railroad Co., 49 X. Y. 521 94, 97, 120
Lansing v. Smith, 8 Cow. (X. Y.) 146 320
v. Stone, 37 Barb. (X. Y.) 15 351
Lapham v. Curtis, 5 Vt. 371 319
Lapp v. Guttenkunst (Ky.) 44 S. W. 964 301
Larich v. Moies, 18 R. I. 513, 28 Atl. 661 105
Larkin v. O'Neill, 119 X. Y. 221, 23 X. E. 563 49
v. Railroad Co., 166 Mass. 110, 44 X. E. 122 43
Larmore v. Iron Co., 101 X. Y. 391, 4 X. E. 752 48
Larson v. Railroad Co., 71 Minn. 438, 74 X. W. 166 104
v. Ring, 43 Minn. 88, 44 X. W. 1078 104
Larue v. Hotel Co., 116 Mass. G7 313
Lary v. Railroad Co., 78 Ind. 323 31
534 CASES CITED.
Page-
Last Chance Mining & Milling Co. v. Ames, 23 Colo. 167, 47 Pac. 382 91
Latorre v. Stamping Co., 9 App. Div. 145, 41 N. Y. Supp. 99 107
Laue v. City of Madison, 86 Wis. 453, 57 N. W. 93 437
LaughUn v. Railway Co., 28 Wis. 204 295, 296-
Lauter v. Duckworth, 19 Ind. App. 535, 48 N. E. 864 93, 151
Laverone v. Manglanti, 41 Cal. 140 361
Lawall v. Groman, 180 Pa. St. 532, 37 Atl. 98 372, 375-
Lawrence v. Inhabitants, 5 Gray (Mass.) 110 429
V. McGregor, Wright N. P. (Ohio) 193 224
v. Railroad Co., 29 Conn. 390 54
15 Minn. 390 (Gil. 313) 291, 294
v. Shipman, 39 Conn. 586 161
Lawson v. City of Seattle, 6 Wash. 184, 33 Pac. 347 443-
v. Conaway, 37 W. Va. 159, 16 S. E. 564 376, 377
v. Railway Co., 64 Wis. 447, 456, 24 X. W. 618 188, 407
v. Truesdale, 60 Minn. 410, 62 N. W. 546 109-
Lay y. Railroad Co., 106 N. C. 404, 11 S. E. 412 51
Learoyd v. Godfrey, 138 Mass. 315 304
Leary v. Railroad Co., 139 Mass. 580, 587, 2 N. E. 115 112, 123, 124
Leavenworth, L. & G. R. Co. v. Maris, 16 Kan. 333 287
Leavitt v. Railroad Co., 89 Me. 509, 36 Atl. 998 1C1
Le Barren v. Ferry Co., 11 Allen (Mass.) 312 216
Lechowitzer v. Packet Co., 6 Misc. Rep. 536, 27 N. Y. Supp. 140 258
Le Conteur v. Railroad Co., L. R. 1 Q. B. 54 27ft
Lee v. Gaslight Co., 98 N. Y. 115 85
v. Railway Co., 66 Iowa, 131, 23 N. W. 299 346
Leeson v. Holt, 1 Starkie, 186 238
Lefkowitz v. Railway Co. (Sup.) 56 N. Y. Supp. 215 323
Leggott v. Railway Co., 1 Q. B. Div. 599, 45 Law J. Q. B. 557, 35 Law T.
(N. S.) 334 403
Lehigh Co. v. Hoffort, 116 Pa. St. 119, 9 Atl. 177 449-
Lehigh Iron Co. v. Rupp, 100 Pa. St. 95 406, 410
Lehman v. City of Brooklyn, 29 Barb. (N. Y.) 234 66, 415
Leigh v. Railway Co., 36 Neb. 131, 54 X. W. 134 100
Leighton v. Sargent, 7 Fost. (X. H.) 460 376
Lemke v. Railway Co., 39 Wis. 449 287
Lemmon v. Railroad Co., 32 Iowa, 151 345
Lemon v. Chanslor, 68 Mo. 340 216
Lent v. Railroad Co., 120 X. Y. 467, 24 X. E. 653 178
Leonard v. City of Harnellsville (Sup.) 58 X. Y. Supp. 266 450'
v. Collins, 70 X. Y. 90 95
v. Kinnare, 174 111. 532, 51 X. E. 688 151
v. Whitcomb, 95 Wis. 646, 70 X. W. 817 2(!6
Lepnick v. Gaddis, 72 Miss. 200, 16 South. 213 304
Le Sage v. Railway Co., 1 Daly (X. Y.) 306 224
Lesan v. Railroad Co., 77 Me. 85 325, 340
Leslie v. City of Lewiston, 62 Me. 468 70
v. Pounds, 4 Taunt. 649 161, 312
Lester v. Railroad Co., 73 Hun, 398, 26 X. Y. Supp. 206 298-
CASES CITED. 53-J
Page
Levering v. Insurance Co., 42 Mo. 88 253
Levi v. Brooks, 121 Mass. 501 168
Levinson v. Railway Co. (Tex. Civ. App.) 43 S. W. 1032 199
Levy v. Mayor, etc., 1 Sandf. (X. Y.) 4(J5 451
Lewis v. Canal Co., 145 N. Y. 508, 40 N. E. 248 74
v. Car Co., 143 Mass. 267, 9 N. E. G15 217, 278
v. Dwinnell, 84 Me. 497, 24 Atl. 945 378
v. Ludwick. G Cold. (Tenn.) 368 229
v. Railroad Oo., 93 Ga. 225, 18 S. E. C50 199
5 Hurl. & N. 867 250, 251
L. R. 9 Q. B. 66 180
38 Md. 588 335
(JO N. H. 187 324
v. Samuel, 8 Q. B. 685 374
v. Seifert, 116 Pa. St. 628, 11 Atl. 514 132, 139, 140
v. Smith, 107 Mass. 334 216
Libby v. Ingalls, 124 Mass. 503 284
Lichtenberger v. Incorporated Town of Meriden, 100 Iowa. 221, 69 N. W.
424 434
Light v. Railway Co., 93 Iowa, 83, 61 N. W. 380 152
Lillibridge v. McCann (Mich.) 75 N. W. 288 87, 350
Lillis v. Railway Co., 64 Mo. 464 183, 185, 196
Lilly v. Railroad Co., 32 S. C. 142, 10 S. E. 932 403, 417
Limberger v. Westcott, 49 Barb. (N. Y.) 283 258
Liming v. Railroad Co., 81 Iowa, 246, 47 N. W. 66, 67.. 14, 19
Lin v. Railroad, 10 Mo. App. 125 296
Linen v. Mfg. Co., 143 Mass. 206, 9 N. E. 728 120
Lincoln v. City of Boston, 148 Mass. 578, 580, 20 N. E. 329 451
v. Walker, 18 Neb. 244, 20 N. W. 113 84
Lincoln Rapid-Transit Co. v. Nichols, 37 Neb. 332, 55 N. W. 872 40, 41
Lindeman v. Railroad Co., 42 Hun (N. Y.) 300 88, 334
Lindholm v. City of St. Paul, 19 Minn. 245 (Gil. 204) 449
Lindley v. Railroad, 88 N. C. 547 294
Lindsay v. Railroad Co., 68 Vt. 556, 35 Atl. 513 51
Lindsley v. Railway Co., 36 Minn. 539, 33 N. W. 7 218, 262
Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020 133, 141
Lineoski v. Coal Oo., 157 Pa. St. 153, 27 Atl. 577 94
Linfield v. Railroad Co., 10 Cush. (Mass.) 562 330
Link v. Railroad Co., 165 Pa. St. 75, 30 Atl. 820 334, 337
v. Sheldon, 136 N. Y. 1, 32 N. E. 696 378
Linnehan v. Sampson, 126 Mass. 506 41, 363
Linton Coal & Mining Co. v. Persons, 11 Ind. App. 264, 39 X. E. 214 94.
Liscomb v. Transportation Co., 6 Lans. (N. Y.) 75 '. 208
Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391 57, 59, 60
v. Railroad Co., 66 Me. 239 238
88 Wi9. 402, 60 N. W. 705 38. 52
Littlejohn v. Railroad Co., 148 Mass. 478, 20 X. E. 103 190, 209
Little Miami R. Co. v. Stevens, 20 Ohio, 415 133, 142
v. Washburn, 22 Ohio St. 324 . 291
536 CASES CITED.
Page
Little Miami R. Co. v. Wetmore, 19 Ohio St. 110 170
Little Rock, M. R. & T. R. Co. v. Corcoran, 40 Ark. 375 219
v. Harper, 44 Ark. 208 219
v. Talbot, 39 Ark. 523 253
47 Ark. 97, 14 S. W. 471 238
Little Rock Traction & Electric Co. v. Walker (Ark.) 45 S. W. 57 158, 169
Little Rock & Ft. S. Ry. Co. v. Barker, 33 Ark. 350 406, 409, 410
39 Ark. 491 414
v. Blewett (Ark.) 45 S. W. 548 330
v. Duffey, 35 Ark. 602 95
v. Lawton, 55 Ark. 428, 18 S. W. 543 211
v. Pankhurst, 36 Ark. 371 78
v. Voss (Ark.) 18 S. W. 172 411
Little Rock & M. R. Co. v. Barry, 28 C. C. A. 644, 84 Fed. 944 102
Livermore v. Railroad Co., 163 Mass. 132, 39 N. E. 789 340
Liverpool & G. W. Steam Co. v. Insurance Co., 129 U. S. 397, 9 Sup. Ct. 469 239
v. Suitter, 17 Fed. 695 285
Liverpool & L. & G. Ins. Co. v. McNeill, 32 C. C. A. 173, 89 Fed. 131 239
Livingston v. Adams, S Cow. (N. Y.) 175 318, 319
v. Railroad Co., 5 Hun (N. Y.) 562 236
Lloyd v. Business College, 13 Ohio Cir. Ct. R. 358, 7 Ohio Dec. 318 167
v. Railway Co., 128 Mo. 595, 29 S. W. 153, 31 S. W. 110 338
Locke v. Railroad Co., 15 Minn. 351 (Gil. 283) 342
Lockhart v. Lichenthaler, 46 Pa. St. 151, 159 25, 189
Lockwood v. Railroad Co., 98 N. Y. 523 411
55 Wis. 50, 12 X. W. 401 152
Loeb v. Peters, 63 Ala. 243 / 298
Loewer v. City of Sedalia, 77 Mo. 431 77
Logan v. McCahan, 102 Iowa, 241, 71 N. W. 252 388
v. Railroad Co., 116 N. C. 940, 21 S. E. 959 149
11 Rob. (La.) 24 274
Logwood v. Railroad Co., 23 Fed. 318 195
London & L. Fire Ins. Co. v. Railroad Co., 68 Hun, 598, 23 N. Y. Supp. 231;
144 N. Y. 200, 39 N. E. 79 279
Long v. Moon, 107 Mo. 334 161
v. Morrison, 14 Ind. 595 401
v. Railroad Co., 147 Pa. St. 343. 23 Ati. 459 227
Longmore v. Railway, 19 0. B. (N. S.) 183 209
Loomis v. Railway Co., 17 Mo. App. 340 293
v. Terry, 17 Wend. (N. Y.) 496 362, 364, 365
Looney v. McLean, 129 Mass. 33 51
Lopez v. Mining Co., 1 Ariz. 464, 2 Pac. 748 84
Lord v. City of Mobile, 113 Ala. 360, 21 S. E. 366 432, 433
Lords Bailiff-Jurats of Romney Marsh v. Trinity House, L. R. 5 Exch. 204 23
Lorenzo v. Wirth, 170 Mass. 596, 49 N. E. 1010 31
Lorillard v. Town of Munroe, 11 N. Y. 392, 396 451
Los Angeles Cemetery Ass'n v. City of Los Angeles, 103 Cal. 461, 37 Pac.
375 429
Losee v. Buchanan, 51 N. Y. 476 319
CASES CITED. 537
Page
Loughlin v. State, 105 N. Y. 159, 11 N. E. 371 132, 133
Louisville, C. & L. K. Co. v. Case's Adm'r, 9 Bush (Ky.) 728 57
v. Cavens' Adm'r, 9 Bush (Ky.) 500 147
v. Goetz's Adm'x, 79 Ky. 442 84, 86
v. Hedger, 9 Bush (Ivy.) 645 238
v. Mahan, S Bush (Ky.) 184 289
v. Mahony's Adm'x, 7 Bush (Ky.) 235 394, 413
v. Sullivan, 81 Ky. 624 78
Louisville, E. & St. L. Consol. R. Co. v. Utz, 133 Ind. 265, 268, 32 N. E.
881 103, 104
Louisville, N. A. & C. Ry. Co. v. Berkey, 136 Ind. 181, 35 N. E. 3 104
v. Buck, 116 Ind. 566, 19 N. E. 453 146
v. Cook, 12 Ind. App. 109, 38 N. E. 1104 179
v. Creek, 130 Ind. 139, 29 N. E. 481 61
v. Frawley, 110 Ind. 18, 9 N. E. 594 106, 119
v. Heck, 151 Ind. 292, 50 N. E. 988 147
v. Isom, 10 Ind. App. 691, 38 N. E. 423 147
v. Keefer, 146 Ind. 21, 44 N. E. 796 212
v. Lucas, 119 Ind. 583, 21 N. E. 968 180
v. McCorkle, 12 Ind. App. 691, 40 N. E. 26 358
v. Nitsche, 126 Ind. 229, 26 X. E. 51, 45 Am. & Eng. R. Gas. 532 13, 10
v. Rush, 127 Ind. 545, 20 X. E. 1010 409
v. Sears, 11 Ind. App. 654, 38 N. E. 837 66, 70
v. Snyder, 117 Ind. 435, 20 N. E. 284 29
v. Stephens, 13 Ind. App. 145, 40 N. E. 148 330, 337
v. Stommel, 126 Ind. 35, 25 N. E. 863 55
v. Wolfe, 128 Ind. 347, 27 N. E. 606 186
v. Wright, 18 Ind. App. 125, 47 N. E. 491 196
Louisville, N. O. & T. R. Co. v. Bigger, 66 Miss. 319, 6 South. 234 234, 266
v. Mask, 04 Miss. 738, 2 South. 300 180
v. Patterson, 09 Miss. 421, 13 South. 097 193
Louisville, N. & G. S. R. Co. v. Fleming, 14 Lea (Tenn.) 128 80
v. Harris, 9 Lea (Tenn.) 180 184, 199
Louisville Safety- Vault & Trust Co. v. Louisville & N. R. Co. (Ky.) 17 S. W.
567 36, 392
Louisville & A. R. Co. v. Ballard, 2 Mete. (Ky.) 77 344
Louisville & N. R. Co. v. Bell (Ky.) 38 S. W. 8 191, 212
v. Bowen (Ky.) 39 S. W. 31 344
v. Brantley's Adm'r, 96 Ky. 297, 28 S. W. 447 125
v. Brice, 84 Ky. 298, 1 S. W. 483 394
v. Brinckerhoff (Ala.) 24 South. 892 343
v. Brooks' Adm'x, 83 Ky. 129, 131 125, 418
v. Brown (Ala.) 25 South. 609 405
v. Brownlee, 14 Bush (Ky.) 590 238
v. Burke. 6 Cold. 45 398
v. Campbell, 7 Heisk. (Tenn.) 253 293, 295
v. Chaffin, 84 Ga. 519, 11 S. E. 891 402
v. Ciark's Adm'r (Ky.) 49 S. W. 323 340
v. Collins, 2 Duv. (Ky.) 114, 117 142, 147
538 CASES CITED.
Page
Louisville & N. R. Co. v. Com., 99 Ky. 663, 37 S. W. 79 1 195
v. Dalton (Ky.) 43 S. W. 431 35S
v. Donaldson (Ky.) 43 S. W. 439 172
v. Eakin's Adm'r (Ky.) 45 S. W. 529 405
v. Ellis' Adm'r, 97 Ky. 330, 30 S. W. 979 185
v. Garrett, 8 Lea (Tenn.) 438 184
v. Gidley (Ala.) 24 South. 753 224
v. Gower, 85 Tenn. 465, 3 S. W. 824 149
v. Guthrie, 10 Lea (lenn.) 432 11, 19
v. Hailey, 94 Tenn. 383, 29 S. W. 367 187
v. Hartwell, 99 Ky. 436, 36 S. W. 183 284
v. Johnson, 108 Ala. 62, 19 South. 51 185
27 C. C. A. 367, 81 Fed. 679 90
v. Jones, 83 Ala. 376, 3 South. 902 398
100 Ala. 263, 14 South. 114 296
v. Keller (Ky.) 47 S. W. 1072 208-
v. Kelsey, 89 Ala. 287, 7 South. 648 17
v. Keinper, 147 Ind. 561, 47 N. E. 214 11&
v. Kingman (Ky.) 35 S. W. 264 188, 189
v. Lahr, 86 Tenn. 335, 6 S. W. 663 149
v. Levi, 8 Ohio Dec. 373 248-
v. Ma'.one, 116 Ala. 600, 22 South. 897 359
v. Manchester Mills, 88 Tenn. 653, 14 S. W. 314 219
v. Meyer, 78 Ala. 597 295
v. Miller, 109 Ala. 500, 19 South. 989 355
v. Mitchell, 87 Ky. 327, 8 S. W. 706 &
v. Oden, 80 Ala. 38 287
v. Orr, 91 Ala. 548, 8 South. 360 103
26 South. 35 394
v. Pitt, 91 Tenn. 86, 18 S. W. 118 403, 416-
v. Ricketts (Ky.) 37 S. W. 952 208-
v. Sanders, 86 Ky. 259, 5 S. W. 563 420, 421
v. Semonis (Ky.) 51 S. W. 612 95
v. Stutts, 105 Ala. 368, 17 South. 29 152
v. Taafe's Adm'r (Ky.) 50 S. W. 850 405
v. Tennessee Brewing Co., 96 Tenn. 677, 36 S. W. 392 296-
v. Touart, 97 Ala. 514, 11 South. 756 23&
v. Trammell, 93 Ala. 350, 9 South. 870 407
v. Turner, 100 Tenn. 213, 47 S. W. 223 200
v. Vestal (Ky.) 49 S. W. 204 118
v. Wainscott, 3 Bush (Ky.) 149 342
v. Ward's Adm'r (Ky.) 44 S. W. 1112 407
v. Williams, 105 Ala. 379, 16 South. 795 348
v. Wynn, 88 Tenn. 320, 14 S. W. 311 218, 249, 250
Louisville & P. Canal Co. v. Murphy, 9 Bush (Ky.) 522 62
Louisville & St. L. Consol. R. Co. v. Gobin, 52 111. App. 565 71
Louth v. Thompson (Del. Super.) 39 Atl. 1100 84
Love v. City of Atlanta, 95 Ga. 129, 22 S. E. 29 44S
CASES CITED. 539
Page
Lovejoy v. Railroad Co., 125 Mass. 79 4. . . . . 115, 116
41 W. Va. 693, 24 S. E. 599 342
Loveland v. Burke, 120 Mass. 139 232
Levering v. Coal Co., 54 Pa. St. 291 226
Lovett v. Salem & S. D. R. Co., 9 Allen (Mass.) 557 338
Lovingston v. Bauchens, 34 111. App. 544 158
Lowe v. Railway Co., 89 Iowa, 420, 56 N. W. 519 102, 106
v. Salt Lake City, 13 Utah, 91, 44 Pac. 1050 49, 50, 309
Lowell Wire-Fence Co. v. Sargent, 8 Allen (Mass.) 189 215, 294
Lowery v. Ice Co., 26 Misc. Rep. 163, 55 N. Y. Supp. 707 70
v. Railway Co., 99 N. Y. 158, 1 N. E. 608 14, 357
Loyd v. City of Columbus, 90 Ga. 20, 15 S. E. 818 ' 441, 444
Lucas v. Railroad Co., 21 Barb. (X. Y.) 245 403
6 Gray (Mass.) 64 211
33 Wis. 41 187
Luce v. Railway Co., 67 Iowa, 75, 24 N. W. 600 147
Lucey v. Oil Co., 129 Mo. 32, 31 S. W. 340 Ill
Luck v. Zapp, 1 Tex. Civ. App. 528, 21 S. W. 418 383
Luebke v. Machine Works, 88 Wis. 442, 60 N. W. 711 119
Lufkin v. Zane, 157 Mass. 117, 31 N. E. 757 315
Lumley v. Mfg. Co., 20 C. C. A. 1, 73 Fed. 767 303
Lundberg v. Shevlin-Carpenter Co., 68 Minn. 135, 70 N. W. 1078 141
Lundy v. Railroad Co., 66 Cal. 191, 4 Pac. 1193 200
Luse v. Railway Co., 57 Kan. 361, 46 Pac. 768 181
Lustig v. Railroad Co., 65 Hun, 547, 20 N. Y. Supp. 477 411, 417
Luxf ord v. Large, 5 Car. & P. 421 37
Lyberg v. Railroad Co., 39 Minn. 15, 38 N. W. 632 120
Lygs v. Newbold, 9 Exch. 302 68
Lynch v. Allyn, 160 Mass. 248, 35 N. E. 550 105
v. Com., 16 Serg. & R. (Pa.) 368; 6 Watts, 495 373, 384
v. Davis, 12 How. Prac. (N. Y.) 323 378, 401
v. Mayor, etc., 76 X. Y. 61. 429
v. Nurdin, 1 Q. B. 29 25, 27, 68, 70
v. Railroad Co., 8 App. Div. 458, 40 N. Y. Supp. 775 206
16 C. C. A. 151, 69 Fed. 86 337
112 Mo. 420, 20 S. W. 642 73
90 N. Y. 77 173
v. Smith, 104 Mass. 52 G5, 68, 70, 72
v. Swan, 167 Mass. 510, 46 N. E. 51 317
Lynn v. Southern Pac. Co., 103 Cal. 7, 36 Pac. 1018 205
Lynx, The, v. King, 12 Mo. 272 222
Lyons v. City of Red Wing (Minn.) 78 N. W. 868 437
v. Merrick, 105 Mass. 71 362
V. Railroad Co., 57 N. Y. 489 39, 54
M
McAlister v. Railroad Co., 74 Mo. 351 233
McAllaster v. Bailey, 127 N. Y. 583, 28 N. E. 591 382
540 CASES CITED.
Page^
MoAndrew v. Whitlock, 52 N. Y. 40 2S6
McAndrews v. Burns, 39 N. J. Law, 117 1-18
McArthur v. Sears, 21 Wend. (N. Y.) 190 226
JMcBeath v. Railway Co., 20 Mo. App. 445 232
McBride v. Railway Co., 3 Wyo. 247, 21 Pac. 687 151
McCafferty v. Railroad Co., 61 N. Y. 178 166, 178
McCahill v. Kipp, 2 E. D. Smith (N. Y.) 413, 590 19, 25
McCalla v. Multnomah Co., 3 Or. 424 456
McCandless v. McWha, 22 Pa. St. 261 376
25 Pa. St. 95 379
v. Railroad Co., 45 Wis. 365 343
McCann v. City of Waltham, 163 Mass. 344, 40 N. E. 20 443
v. Pennsylvania Co., 10 Ohio Cir. Ct. R. 139, 3 Ohio Dec. 444 134
v. Railway Co., 96 Wis. 664, 71 N. W. 1054 348
McCarthy v. Muir, 50 111. App. 510 90
v. Mulgrew (Iowa) 77 N. W. 527 105
v. Portland, 67 Me. 167 436
v. Railway Co., 92 Mo. 536, 4 S. W. 516 66
9 Mo. App. 159 293
v. Shipowners' Co., L. R. Ir. 10 Exch. 384 98
McCarty v. Railroad Co., 30 Pa. St. 247 288
v. Wells, 51 Hun, 171, 4 N. Y. Supp. 672 400
McCaskill v. Elliot, 5 Strob. (S. C.) 196 364
McCauley v. Casualty Co., 16 Misc. Rep. 574, 38 N. Y. Supp. 773 156
v. Hutkoff, 20 Misc. Rep. 97, 45 N. Y. Supp. 85 1G8
v. Railway Co., 10 App. D. C. 560 90
McClallen v. Adams, 19 Pick. (Mass.) 333 377
McClarney v. Railway Co., 80 Wis. 277, 49 N. W. 903 151
McClary v. Railroad Co., 3 Neb. 44 11, 19, 24
McClellan v. Railway Co.. 58 Minn. 104, 59 N. W. 978 20, 25
McClelland v. Railway Co., 94 Ind. 276 78
McClung v. Dearborne, 134 Pa. St. 396, 19 Atl. 698 169
McClure v. Railroad Co., 34 Md. 532 179, 184, 185, 198
McConnell v. Lloyd, 9 Pa. Super. Ct. 25, 43 Wkly. Notes Gas. 245 364
v. Railroad Co., 86 Va. 248, 9 S. E. 1006 294
McCook v. Northup (Ark.) 45 S. W. 547 185, 193
McCormack v. Railroad Co., 18 App. Div. 333, 46 N. Y. Supp. 230 56
McCormick v. Railroad Co., 4 E. D. Smith (N. Y.) 181 270
McCoun v. Railroad Co., 66 Barb. (N. Y.) 338 157
McCoy v. Railroad Co., 44 Iowa, 424 262
v. Town of Westboro (Mass.) 52 X. E. 1064 138
v. Transportation Co., 42 Md. 498 238
McCracken v. Smathers, 122 N. C. 799, 29 S. E. 354 377
McCray v. Town of Fairmont (W. Va.) 33 S. E. 245 438
McCready v. Railroad Co., 2 Strob. (S. C.) 356 357
McCrowell v. Mayor, etc., 5 Lea (Teun.) 685 450
McCue v. Klein. 60 Tex. 168 399
McCullom v. Black Hawk Co., 21 Iowa. 409 456
McCullough v. Railway Co., 34 Mo. App. 23 279
CASES CITED. 541
Page
McCully v. Clarke, 40 Pa. St. 399 349-
McCurrle v. Pacific Co., 122 Cal. 558, 55 Pac. 324 205
McCutchen v. Homer, 43 Mich. 483, 5 N. W. 668 450-
McDade v. City of Chester, 117 Pa. St. 414, 12 Atl. 421 449, 450
McDaniel v. Railroad Co., 24 Iowa, 412 253, 266
McDerruott v. Railway Co. (Iowa) 47 N. W. 1037 418-
McDonald v. City of Red Wing, 13 Minn. 38 (Gil. 25) 452
v. Franchere, 102 Iowa, 496, 71 X. W. 427 158, 169
v. Railroad Co., 26 Iowa, 124 178-
v. Railroad Corp., 34 X. Y. 497 287
v. Savoy, 110 Mass. 49 100-
v. Snelling, 14 Allen (Mass.) 290 11
McDonald's Adm'r v. Railroad Co., 95 Va. 98, 27 S. E. 821 150
MacDonell v. Buffum, 31 How. Prac. 154 86
McDonnell v. Railroad Co., 35 App. Div. 147, 54 X. Y. Supp. 747 207
McDonough v. Gilman, 3 Allen (Mass.) 264 313-
v. Mayor, etc., 6 Xev. 90 450
v. Railway Co., 15 Wash. 244, 46 Pac. 334 150
v. Roat, 8 Kulp (Pa.) 433 369-
MacDougall v. Railroad Co., 63 Cal. 431 84
McDuffee v. Railroad Co., 52 X. H. 430 200
McDugan v. Railroad Co. (Com. PI.) 10 Misc. Rep. 336, 31 X. Y. Supp. 135. . 109-
McElligott v. Randolph, 61 Conn. 157, 22 Atl. 1094 146-
McElroy v. Railroad Corp., 4 Gush. (Mass.) 400 54
McEwen v. Springfield, 64 Ga. 159 418
McFadden v. Railway Co., 87 Cal. 464, 25 Pac. 681 61
92 Mo. 343, 4 S. W. 689 239, 250, 262'
McFarlan Carriage Co. v. Potter (Ind. Sup.) 52 X. E. 209 120-
53 X. E. (Ind. Sup.) 465 95, 9$
McFarlane v. Town of Sullivan, 99 Wis. 361, 74 X. W. 559 21
McFetridge v. Piper, 40 Iowa, 627 297, 298
McGarry v. Loomis, 63 N. Y. 104 66, 70, 72"
McGary v. City of Lafayette, 12 Rob. (La.) 668, 4 La. Ann. 440 445
McGeary v. Railroad Co. (R. I.) 41 Atl. 1007 89
McGhee v. Gaines, 98 Ky. 182, 32 S. W. 602 342
v. Guyn (Ky.) 32 S. W. 615 34&
v. Reynolds (Ala.) 23 South. 68 183, 196
McGill v. Rowand, 3 Pa. St. 451 270-
McGinnis v. Bridge Co., 49 Mich. 466. 13 X. W. 819 92, 123
McGonigle v. Canty, 80 Hun, 301, 30 X. Y. Supp. 320 93
McGovern v. Mfg. Co., 80 Ga. 227, 5 S. E. 492 146
v. Oil Co., 11 App. Div. 588, 42 X. Y. Supp. 595 50
v. Railroad Co., 67 X. Y. 417 67, 336, 409
McGowan v. City of Boston, 170 Mass. 384, 49 X. E. 633 434
v. Smelting Co., 3 McCrary, 393, 9 Fed. 861 118
McGown v. Railroad Co., 85 Tex. 289, 20 S. W. 80 415-
McGrath v. Railroad Co., 59 X. Y. 468 39
McGraw v. Railroad Co.. 18 W. Va. 361 225, 235
McGregor v. Brown, 5 Pick. (Mass.) 170 382;
542 CASES CITED.
Page
McGregor v. Kilgore, 6 Ohio, 358 210
McGrew v. Stone, 53 Pa. St. 436 10. 30
McGuerty v. Hale, 161 Mass. 51, 36 N. E. 682 109
McGuire v. Railroad Co., 46 La. Ann. 1543, 16 South. 457 52
v. Spence, 91 N. Y. 303 313
McGuirk v. Shattuck, 160 Mass. 45, 35 N. E. 110 93, 109
McHenry v. Railroad Co., 4 Har. (Del.) 448 210
McHugh v. City of St. Paul, 67 Minn. 441, 70 N. W. 5 435
v. Chicago & N. W. Ry. Co., 41 Wis. 78 353
Mclntosh v. Railway Co., 58 Mo. App. 281 Ill
Mclntyre v. Railroad Co., 163 Mass. 189, 39 X. E. 1012 90
37 N. Y. 287 414
McKay v. Dredging Co., 92 Me. 454, 43 Atl. 29 414
v. Railway Co., 35 N. Y. 75 326, 334
34 W. Va. 65, 11 S. E. 737 % 198-
McKean v. Railroad Co., 55 Iowa, 192, 7 X. W. 505 38
McKee v. Bidwell, 74 Pa. St. 218 82, 436
v. Nelson, 4 Cow. (X. Y.) 355 79
McKeigue v. City of Janesville, 68 Wis. 50. 31 X. W. 298 413. 422
McKenna v. Baessler, 86 Iowa, 197, 53 X. W. 103 19
v. Bedstead Co., 12 Misc. Rep. 485, 33 X. Y. Supp. 684 63
v. Paper Co., 176 Pa. St. 306, 35 Atl. 131 93
McKeon v. Railway Co., 20 App. Div. 601, 47 X. Y. Supp. 374 52
Mackey v. City of Vicksburg, 64 Miss. 777, 2 South. 178 67
Mackin v. Railroad Co., 135 Mass. 201 96
McKinley v. Railroad Co., 44 Iowa, 314 170
McKinney v. Jewett, 90 X. Y. 267 287
v. Xeil, 1 McLean, 540, Fed. Gas. Xo. 8.835 204
Macklin v. Steamboat Co., 7 Abb. Prac. X. S. (X. Y.) 229 275, 277
McKnight v. Construction Co., 43 Iowa, 406 147
McKone v. Railroad Co., 51 Mich. 601, 17 X. W. 74 211
McKune v. Railroad Co., 66 Cal. 302, 5 Pac. 482 146
McLarin v. Railroad Co., 85 Ga. 504, 11 S. E. 840 211
McLaughlin v. City of Corry, 77 Pa. St. 109 434
McLean v. Burbank, 12 Minn. 530 (Gil. 438) 393
v. Mining Co., 51 Cal. 255 133, 146
McLendon v. State, 92 Tenn. 520, 22 S. W. 200 382
McMabon v. City of Xew York, 33 X. Y. 642 404
v. Davidson. 12 Minn. 357 (Gil. 232) 7, 18, 25, 57
v. Mining Co., 101 Wis. 102, 76 X. W. 1098 151
v. Railroad Co., 39 Md. 439 70, 71
McMasters v. Railroad Co., 69 Pa. St. 374 286
McMillan v. Railroad Co., 46 Iowa, 231 67
16 Mich. 79, 110, 111 252, 254, 257, 259. 294
172 Pa. St. 523, 33 Atl. 560 184, 196
McMnllen v. Railway Co., 1 Mo. App. Rep'r, 230 98
McXamara v. Beck (Ind. App.) 52 X. E. 707 70
v. Railroad Co., 136 X. Y. 650. 32 X. E. 675 335
V. Milage of Clintonville, 62 Wis. 207, 22 X. W. 472 30
CASES CITED. 543
Page
McXamee v. Hunt, 30 C. C. A. 653, 87 Fed. 298 101
McNeil v. Ice Co. (Mass.) 54 X. E. 257 64
McXevins v. Lowe, 40 111. 209 376
McXown v. Railroad Co., 55 Mo. App. 585 331
McXulta v. Ensch, 134 111. 46, 24 N. E. 631 180
McXutt v. Livingston, 7 Smedes & M. (Miss.) 641 388
Macon & I. S. St. Ry. Co. v. Holmes, 103 Ga. 655, 30 S. E. 563 42
Macon & W. R. Co. v. Davis, 27 Ga. 113 79
McPhee v. Scully, 163 Mass. 216, 39 N. E. 1007 97, 138
McPherson v. City of Buffalo, 13 App. Div. 502, 43 N. Y. Supp. 658 434
JMrllae v. Railroad Co., 88 X. C. 526 199
Mc-Rickard v. Flint, 114 X. Y. 222, 21 X. E. 153. 48
Macrow v. Railway Co., L. R. 6 Q. B. 612 216, 269, 271
McTavish v. Railway Co. (N. D.) 79 N. W. 443 358
McVee v. City of Watertown, 92 Hun, 306, 36 N. Y. Supp. 870 64
McVeety v. Railway Co., 45 Minn. 268, 47 X. W. 809 196
McVoy v. Oakes, 91 Wis. 214, 64 X. W. 748 65
Macy v. Railroad Co., 35 Minn. 200, 28 X. W. 249 141
Madan v. Sherard, 73 X. Y. 329 259
Madden v. Railway Co., 28 W. Ya. 610 150, 403
Madden's Adm'r v. Railroad Co., 28 W. Va. 610 150
Madison & I. R. Co. v. Taffe, 37 Ind. 361, 364 323
Magiltou v. Railroad Co., 82 Hun, 308, 31 N. Y. Supp. 241 342
Maginnis v. Railroad Co., 52 N. Y. 215 326
Magner v. Baptist Church, 174 Pa. St. 84, 34 Atl. 456 49
Magnin v. Diusmore, 56 X. Y. 168 253, 258
62 X. Y. 35 230, 248, 260
70 X. Y. 410 245, 247
Magoon v. Railroad Co., 67 Yt. 177, 31 Atl. 156 335
Maguire v. Railroad Co., 115 Mass. 239 100
146 Mass. 379, 15 N. E. 904 418
Mahar v. Railway Co.. 19 Hun (X. Y.) 32 335
Mahon v. Burns, 13 Misc. Rep. 19, 34 X. Y. Supp. 91 44
Mahoney v. Dankward (Iowa) 79 N. W. 134 166
v. Dore, 155 Mass. 513, 30 N. E. 366 114, 124
v. Libbey, 123 Mass. 20 306
Maignan v. Railroad Co., 24 La. Ann. 333 287
Majestic, The, 9 C. C. A. 161, 60 Fed. 624 261
166 U. S. 375, 17 Sup. Ct. 597 219
Maleverer v. Spinke, 1 Dyer, 36 9, 452
Mali v. Lord, 39 X. Y. 381 109, 171, 173
Mallach v. Ridley (Sup.) 9 X. Y. Supp. 922 171
Mallory v. Railroad Co., 39 Barb. (X. Y.) 488 217
Malmsten v. Railroad Co., 49 Mich. 94, 13 X. W. 373 57
Malone v. Gerth, 100 Wis. 166, 75 X. W. 972 372
v. Railway Co., 65 Iowa, 417, 21 X. W. 756 147
Maloy v. Railway Co., 84 Mo. 270 44
Manchester, S. & L. R. Co. v. tVallis, 14 C. B. 213 341
Maucuso v. Kansas City, 74 Mo. App. 138 313
544 . CASES CITED.
Page
Manderschild v. City of Dubuque, 25 Iowa, 108 437
Mangam v. Railroad Co., 36 Barb. 230 36
38 N. Y. 455 64, 66
Mangan v. Atterton, L. R. 1 Exch. 239 70
v. Foley, 33 Mo. App. 250 156
Manhattan Rubber Shoe Co. v. Railroad Co., 9 App. Div. 172, 41 N. Y.
Supp. 83 283
Mauley v. Canal Co., 69 Vt. 101, 37 Atl. 279 330
v. Railroad Co. 18 App. Div. 420, 45 N. Y. Supp. 1108 335
Manly v. Railroad Co., 74 N. C. 655 67, 78
Mann v. Birchard, 40 Vt. 326 239
v. Canal Co., 91 N. Y. 495 97
v. Print Works. 11 R. I. 152 123
v. Weiand, 81 Pa. St. 243 418
Manning v. Railway Co., 166 Mass. 230, 44 N. E. 135 40
105 Mich. 260, 63 N. W. 312 Ill
Manross v. City of Oil City, 178 Pa. St. 276, 35 Atl. 959 434
Mansfield Coal & Coke Co. v. McEnery, 91 Pa. St. 185 140
Maples v. Railroad Co., 38 Conn. 557 201
Marble v. City of Worcester, 4 Gray (Mass.) 395 18
v. Ross, 124 Mass. 44 365
March v. Walker, 48 Tex. 372, 375 393, 405
Marean v. Railroad Co., 167 Pa. St. 220, 31 Atl. 562 112
Mariani v. Dougherty, 46 Cal. 26 414
Marietta & C. R. Co. v. Stephenson, 24 Ohio St. 48 343
Marion v. Railroad Co., 59 Iowa, 428, 13 N. W. 415 169
Mark v. Bridge Co., 103 M. Y. 28, 8 N. E. 243 39
v. Railway Co., 32 Minn. 208, 20 N. W. 131 211
Markey v. Queens Co., 154 N. Y. 675, 49 N. E. 71, 39 Lawy. Rep. Ann. 46. . 454
Marley v. Wheelwright, 172 Mass. 530, 52 N. E. 1066 317
Marquette v. Railroad Co., 33 Iowa, 562 195
Marsh v. Checkering, 101 N. Y. 396, 399, 5 N. E. 56 92, 121
v. Jones, 21 Vt. 378 362, 363
v. Whitmore, 21 Wall. 178 373
Marshall v. Express Co., 7 Wis. 1 283
v. Heard, 59 Tex. 266 , 314, 317
v. Railroad Co., 45 Barb. (N. Y.) 502 233
11 C. B. 655, 665 220, 221
Marsland v. Murray, 148 Mass. 91, 18 N. E. 680 71
Martin v. Courtney (Minn.) 77 N. W. 813 377
v. Iron Works, 31 Minn. 407, 18 N. W. 109 19, 20, 26
V. Railroad Co., 16 0. B. 179 35, 208
(Del. Super.) 42 Atl. 442 340
65 Fed. 384 145
L. R. 3 Exch. 9 '. 189
176 Pa. St. 444, 35 Atl. 183 330
51 S. C. 150, 28 S. E. 303 ' 86
v. Temperley, 4 Q. B. 298 159
v. Wallace, 40 Ga. 52 . 393
CASES CITED. 545
Page
Marvin v. Railway Co., 79 Wis. 140, 47 N. W. 1123 20
v. Transfer Co., 49 Fed. 436 401
Marx v. Steamship Co., 22 Fed. 680 233
Mascheck v. Railroad Co., 3 Mo. App. 600 66
Mascotte, The, 2 C. C. A. 400, 51 Fed. 606 2S5
Maslin v. Railway Co., 14 W. Va. 180 212, 239
Mason v. Keeling, 12 Mod. 332, 1 Ld. Raym. 606 309
v. Railroad Co., Ill N. C. 4S2, 16 S. E. 698 148
Massoth v. Canal Co., 64 N. Y. 524 88, 331
Mast v. Kern (Or.) 54 Pac. 950 149
Masterson v. Railroad Co., 84 N. Y. 247 59
Matchett v. Railway Co., 132 Ind. 334, 31 N. E. 792 112
Mather v. Rillston, 156 U. S. 391, 15 Sup. Ct. 464 106
Matteson v. Railroad Co., 62 Barb. (N. Y.) 364 91
Mattey v. Machine Co., 140 Mass. 337, 4 N. E. 575 71
Matthei v. Wooley, 69 111. App. 654 378
Matthews v. Bull (Cal.) 47 Pac. 773 85
v. De Groff, 13 App. Div. 356, 43 N. Y. Supp. 237 313
v. Warner's Adm'r, 29 Grat (Va.) 570 403
Mattimore v. City of Erie, 144 Pa. St. 14, 22 Atl. 817 37, 39
Mattise v. Mfg. Co., 46 La. Ann. 1535, 16 South. 400 148, 164
Mattison v. Railroad Co., 57 N. Y. 552 289
Matz v. Railroad Co., 85 Fed. 180 398
Matze v. Railroad Co., 1 Hun (N. Y.) 417 327
Mauran v. Insurance Co., 6 Wall. 1 229
Mauri tz v. Railroad Co., 23 Fed. 765, 21 Am. & Eng. R. Cas. 286, 292. .258, 269
Maying v. Todd, 1 Starkie, 72 .' . 238
Maxmilian v. City of New York, 62 N. Y. 160 449, 453
Maxwell v. Pike, 2 Me. 8 388
v. Railroad Co., 48 La. Ann. 385, 19 South. 287 223
1 Marv. 199, 40 Atl. 945 37, 52, 85, 407
May v. Burdett, 9 Q. B. 101 361
v. Inhabitants, 11 Mete. (Mass.) 442 85
v. Railroad Co. (N. J. Sup.) 42 Atl. 163 408
Mayes v. Railroad Co., 71 Mo. App. 140 330
Mayuard v. Railroad Co., 115 Mass. 458 341, 343
Mayor, etc., of Americus v. Eldridge, 64 Ga. 524 429
Mayor, etc., of City of Albany v. Cunliff, 2 X. Y. 165 444, 445
Mayor, etc., of City of Baltimore v. Holmes, 39 Md. 243 86
v. Marriott 9 Md. 160 456
v. O'Donnell, 53 Md. 110 447
v. Pendleton, 15 Md. 12 25
Mayor, etc.. of City of New York v. Bailey, 2 Denio (N. Y.) 433 431
v. Pentz, 24 Wend. (N. Y.) 668 452
v. Sheffield, 4 Wall. 189 ! 438
Mayor, etc., of City of Rome v. Dodd, 58 Ga. 238 79
Mayor, etc., of City of Savannah v. Waldner, 49 Ga. 316 447
Mead v. Stratton, 87 N. Y. 493 400
Meade v Railway Co., QS Mo. App. 92 19
. 35
546 CASES CITED.
Page
Mears v. Com'rs, 31 N. C. 73 423
Mechanics' Bank v. Bank, 6 Mete. (Mass.) 13 387
Medary v. Gathers, 161 Pa. St. 87, 28 Atl. 1012 312
Meddaugh v. Railway Co., 80 Hun, 620, 33 N. Y. Supp. 7tK5 337
Meehan v. Mfg. Co. (Mass.) 52 N. E. 518 138
Meeks v. Railroad Co., 52 Cal. 602 67, 70
Meenagh v. Buckmaster, 26 App. Div. 4.51, 50 N. Y. Supp. 85 59
Meibus v. Dodge, 38 Wis. 300 67
Meier v. Railroad Co., 64 Pa. St. 225 29
Mellen v. Morrill, 126 Mass. 545 314, 317
Mellor v. Railway Co., 105 Mo. 455, 16 S. W. 849 189
Meloche v. Railway Co. (Mich.) 74 N. W. 301 280
Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5 193, 195
v. Hembree, 84 Ala. 182, 4 South. 392 36
v. Jones, 2 Head (Tenn.) 517 78
v. Reeves, 10 Wall. 176 24, 219, 22.1
v. Whitfield, 44 Miss. 466 208
Memphis & L. R. Ry. Co. v. Stringfellow, 44 Ark. 322 180
Menominee River Sash & Door Co. v. Railroad Co., 91 Wis. 447, 65 N. W.
176 354, 357, 358
Menzell v. Railroad Co., 1 Dill. 531, Fed. Cas. No. 9,429 253
Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith (N. Y.) 115 292
Merchants' Dispatch Transp. Co. v. Bloch, 86 Tenn. 392, 6 S. W. 881. .215, 239
v. Furthmann, 149 111. 66, 36 N. E. 624; 47 111. App. 561 255, 256
V. Hallock, 64 111. 284 282, 288
v. Kahn, 76 111. 520 224
v. Leysor, 89 111. 43 25H
Merchants' Dispatch & Transportation Co. v. Cornforth, 3 Colo. 280, 281. .
212, 222, 223, 238
Mergenthaler v. Kirby, 79 Md. 182, 28 Atl. 1065 49
Merkle v. Bennington Tp., 58 Mich. 156, 24 N. W. 776 399
Merriam v. Railroad Co. 20 Conn. 354 279-281
Merrifield v. City of Worcester, 110 Mass. 216 430, 431
Merrill, In re, 54 Vt. 200 129, 189, 211
v. Grinnell, 30 N. Y. 594 267, 270
v. Railroad Co., 139 Mass. 238, 1 X. E. 548 177
Merritt v. Earle, 29 N. Y. 115 218, 226, 228
v. Hepenstal, 25 Can. Sup. Ct. 150 65
Merryman v. Railway Co., 85 Iowa, 634, 52 N. W r . 545 69
Mersey Docks & Harbour Board v. Gibbs, L. R. 1 H. L. 93, 11 H. L. Cas.
686 442, 455
v. Penhallow, L. R. 1 H. L. 93 426
Mershon v. Hobensack, 22 N. J. Law, 372 192, 227
Mertz v. Detweiler, 8 Watts & S. (Pa.) 376 379
Merwin v. Butler, 17 Conn. 138 283, 286
Mesic v. Railroad Co., 120 N. C. 489, 26 S. E. 633 332
Messenger v. Dennie, 141 Mass. 335, 5 N. E. 283 42
Metcalf v. Railway Co., 12 App. Div. 147, 42 X. Y. Supp. 661 64
Metropolitan Sav. Bank v. Manion, 87 Md. 68, 39 Atl. 90 312
CASES CITED. 547
' Page
Metz v. Railroad Co., 58 N. Y. 61 159
Metzger v. Scliultz, 16 Ind. App. 454, 43 N. E. 886 303, 304
Meuer v. Railway Co., 5 S. D. 568, 59 N. W. 945 244
Mexican Cent. Ry. Co. v. Lauricella, 87 Tex. 277, 28 S. W. 277 205
Mexican Xat. Ry. Co. v. Finch, 8 Tex. Civ. App. 409, 27 S. W. 1028 126
v. Musette, 86 Tex. 708, 26 S. W. 1075 18, 19
Meyer v. Hart, 23 App. Div. 131, 48 N. Y. Supp. 904 415
v. Lemcke, 31 Ind. 208 284
v. Railway Co., 4 C. C. A. 221, 54 Fed. 116 175, 205
Michaels v. Railroad Co., 30 N. Y. 564 24, 225, 227
Michaelson v. Brick Co., 94 Iowa, 725, 62 N. W. 15 112
Michigan Cent. R. Co. v. Austin, 40 Mich. 247 116
v. Boyd, 91 111. 268 256
v. Burrows, 33 Mich. 6 234, 236
v. Carrow, 73 111. 348 271-273
v. Coleman, 28 Mich. 440 208
v. Curtis, 80 111. 324 225
v. Hale, 6 Mich. 243 239, 254, 256, 257
v. Mfg. Co., 16 Wall. 318, 328 239, 257, 287, 294
v. Smithson, 45 Mich. 212, 7 N. W. 791 96
v. Ward, 2 Mich. 538 239
Michigan Southern & N. I. R. Co. v. Day, 20 111. 375 235, 281
v. McDonough, 21 Mich. 165 265
v. Shurtz, 7 Mich. 515 279
Middleton v. Fowler, 1 Salk. 282 267
Mierson v. Hope, 2 Sweeny (N. Y.) 561 233
Miles v. Railroad Co., 86 Hun, 508, 33 N. Y. Supp. 729 337
Millard v. Webster, 54 Conn. 415, 8 Atl. 470 298
Miller v. City of Bradford, 186 Pa. St. 164, 40 Atl. 409 434
v. City of Minneapolis (Minn.) 77 N. W. 788 443
v. City of St. Paul, 38 Minn. 134, 36 N. W. 271 433, 435
v. Hahn (Mich.) 74 N. W. 1015 382
v. Mansfield, 112 Mass. 260 288
v. Mariner's Church, 7 Me. 51 54
v. Martin, 16 Mo. 508 349, 350
v. Miller, 17 Ind. App. 604, 47 N. E. 338 82
v. Mining Co. (Utah) 55 Pac. 58 120
v. Navigation Co., 10 N. Y. 431 215, 227
v. Pendleton, 8 Gray (Mass.) 547 216
V. Railroad Co., 21 App. Div. 45, 47 N. Y. Supp. 285 96, 257, 751
55 Ga. 143 401
93 Ga. 630, 21 S. E. 153 179
81 Hun. 152, 30 N. Y. Supp. 751 337
144 Ind. 323, 43 N. E. 257 338
109 Mo. 350, 19 S. W. 58 148
1 Mo. App. Rep'r, 474 221, 237
125 N. Y. 118, 26 N. E. 35 312
v. Rinaldo, 21 Misc. Rep. 470, 47 N. Y. Supp. 636. 315
v. Southern Pac. Co., 20 Or. 285, 26 Pac. 70 149
548 CASES CITED.
Page
Miller v. Whelan, 158 111. 544, 42 N. E. 59 374-
v. Wilson, 24 Pa. St. 114 374
v. Woodhead, 104 N. Y. 471, 11 N. E. 57 41)
Milliman v. Railroad Co., 66 N. Y. 642 192
Mills v. City of Brooklyn, 32 N. Y. 489 42t>
v. Railroad Co., 1 Marv. 269, 40 Atl. 1114 85, 369
45 N. Y. 622 287
Millsaps v. Railway Co., 69 Miss. 423, 13 South. 696 129-
Miltimore v. Railway Co., 37 Wis. 190 227, 231
Milton v. Steamboat Co., 37 N. Y. 210 54
Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 475
10, 12, 16, 18, 221, 352
Minerly v. Ferry Co., 56 Hun, 113, 9 N. Y. Supp. 104 46
Minor v. Railroad Co., 21 App. Div. 307, 47 N. Y. Supp. 307 181
Minster v. Railway Co., 53 Mo. App. 276 56
Minter v. Railroad Co., 41 Mo. 503 270, 272
Mississippi Cent. R. Co. v. Mason, 51 Miss. 234 51
Mississippi Cotton Oil Co. v. Ellis, 72 Miss. 191, 17 South. 214 93
Mississippi & T. R. Co. v. Ayres, 16 Lea (Tenn.) 725 413
v. Gill, 66 Miss. 39, 5 South. 393 181
Missouri Coal & Oil Co. v. Railroad Co., 35 Mo. 84 280
Missouri Furnace Co. v. Abend, 107 111. 44 120, 418
Missouri, K. & T. Ry. Co. v. Bellows (Tex. Civ. App.) 39 S. W. 1000 347
v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 565 252
v. Edwards, 90 Tex. 65, 36 S. W. 430 307
v. McGlamory (Tex. Civ. App.) 34 S. W. 359 155
v. Meithvein (Tex. Civ. App.) 33 S. W. 1093 342
v. Miller, 8 Tex. Civ. App. 241, 27 S. W. 905 211
39 S. W. (Tex. Civ. App.) 583 211
v. Olive (Tex. Civ. App.) 23 S. W. 526 227
v. Shockman, 59 Kan. 774, 52 Pac. 446 70
v. Simmons, 12 Tex. Civ. App. 500, 33 S. W. 1096 193
Missouri, K. & T. Ry. Co. of Texas v. Dobbins (Tex. Civ. App.) 40 S. W. 861 49
v. Evans (Tex. Civ. App.) 41 S. W. 80 107
v. Hannig, 91 Tex. 347, 43 S. W. 508 3
49 S. W. (Tex. Civ. App.) 116 151
v. Murphy (Tex. Civ. App.) 35 S. W. 66 200
v. Rogers, 91 Tex. 52, 40 S. W. 956 41, 59
v. Webb (Tex. Civ. App.) 49 S. W. 526 3
Missouri Pac. Ry. Co. v. Barber, 44 Kan. 612, 24 Pac. 969 403
v. Bradshaw, 33 Kan. 533, 6 Pac. 917 346
v. Breeding (Tex. App.) 16 S. W. 184 29'J
v. Dwyer, 36 Kan. 58, 12 Pac. 352 147
v. Evans, 71 Tex. 361, 9 S. W. 325 183
v. Fagan, 72 Tex. 127, 9 S. W. 749 252
v. Geist, 49 Neb. 489, 68 N. W. 640 328
v. Grocery Co., 55 Kan. 525, 40 Pac. 899 287, 290
v. Harris, 67 Tex. '166, 2 S. W. 574 252
v. Henry, 75 Tex. 220, 12 S. W. 828 411
CASES CITED. 549
Page
Missouri Pac. Ry. Co. v. Ivy, 71 Tex. 409, 9 S. W. 346 191
v. Lee, 70 Tex. 496, 7 S. W. 857 83, 411
v. Lehmberg, 75 Tex. 61, 12 S. W. 838 407
v. Levi (Tex. App.) 14 S. W. 1062 225, 229, 236
v. Lewis, 24 Neb. 848, 40 X. W. 401 401, 402
v. Liveright (Kan. App.) 53 Pac. 763 273
v. McFadden, 154 U. S. 155, 14 Sup. Ct. 990 280
v. Mfg. Co., 79 Tex. 26, 14 S. W. 785 220
v. Moffatt (Kan. Sup.) 55 Pac. 837 340
Y. Nevill, 60 Ark. 375, 30 S. W. 425 229, 287
v. Peregoy, 36 Kan. 424, 14 Pac. 7 410, 413
v. Prewitt (Kan. App.) 51 Pac. 923 65
v. Railway Co., 31 Fed. 526 352
41 Fed. 316 60
v. Stevens, 35 Kan. 622, 12 Pac. 25 44
v. Williams, 75 Tex. 4, 12 S. W. 835 149
Mitchell v. Chase, 87 Me. 172, 32 Atl. 867 303
v. City of Rome, 49 Ga. 29 438
v. Com., 37 Pa. St. 187 385
v. Corbin, 91 Ala. 599, 8 South. 810 383
v. Crassweller, 13 C. B. 237 173
v. Motor Co., 9 Wash. 120, 37 Pac. 341 67
v. Railroad Co., L. R. 10 Q. B. 256 287, 288
34 Atl. (N. H.) 674 328, 329
100 Tenn. 329, 45 S. W. 337 87
M. M. Chase, The, 37 Fed. 708 233
Mobile & G. R. Co. v. Copeland, 63 Ala. 219 295
Mobile & M. R. Co. v. Ashcraft, 48 Ala. 15 41
v. Crenshaw, 65 Ala. 566 67, 84
v. Smith, 59 Ala. 245 145
Mobile & O. R. Co. v. George, 94 Ala. 199, 10 South. 145 145
v. Hopkins, 41 Ala. 486 212, 249
y. McArthur, 43 Miss. 180 180
v. Mfg. Co., 67 Miss. 35, 7 South. 279 296
v. Massey, 152 111. 144, 38 N. E. 787 135
v. Stinson, 74 Miss. 453, 21 South. 14 355, 359
v. Thomas, 42 Ala. 672 145, 203
Moe v. Smiley, 125 Pa. St. 136, 17 Atl. 228 402
Mohawk, The, 8 Wall. 153 227
Mohr v. Railroad Co., 40 Iowa, 579 288
Monahan v. City of Worcester, 150 Mass. 439, 23 N. E. 228 99, 100
Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. E. 268 456
Mouongahela Bridge Co. v. Kirk, 46 Pa. St. 112 320
Monongahela City v. Fischer, 111 Pa. St. 9, 2 Atl. 87 37
Montgomery v. Gilmer, 33 Ala. 116 428
v. The Port Adelaide, 38 Fed. 753 284
v. Railway Co., 24 App. Div. 454, 48 N. Y. Supp. 849 196
Montgomery Gaslight Co. v. Railway Co., 86 Ala. 372, 5 South. 735 3G
Montgomery & E. Ry. Co. v. Kolb, 73 Ala. 396 281
550 CASES CITED.
Page
Montriou v. Jeffreys, 2 Car. & P. 113 372
Moody v. City of New York, 43 Barb. (X. Y.) 282 313
v. McDonald, 4 Cal. 297 7
v. Railroad Co., 68 Mo. 470 417
Mooers v. Larry, 15 Gray (Mass.) 451 31
v. Railroad Co., 69 Minn. 90, 71 N. W. 905 343
Moomey v. Peak, 57 Mich. 259, 23 N. W. 804 42
Mooney v. Borough of Luzerne, 186 Pa. St 161, 40 Atl. 311, 42 Wkly. Notes
Gas. 279 432
Moon's Adm'r v. Railroad Co., 78 Va. 745 .150
Moore v. Henry, 18 Mo. App. 35 293
v. Mill Co., 55 Mo. App. 491 Ill
v. Railroad Co., 47 Iowa, 688 333
3 Mich. 23 227
85 Mo. 588 148
126 Mo. 265, 29 S. W. 9 43, 52
45 S. W. (Tex. Civ. App.) 609 182
v. Sanborne, 2 Mich. 519, 520 169, 173
v. Steel Co. (Pa. Sup.) 7 Atl. 198 314, 317
v. Steljes, 69 Fed. 518 315
Moore Lame Co. v. Richardson's Adm'r, 95 Va. 326, 28 S. E. 334 102, 150
Moran v. Car Co., 134 Mo. 641, 36 S. W. 659 307
v. Rollings, 125 Mass. 93 398
v. Railway Co., 48 Minn. 46, 50 N. W. 930 103
Morange v. Mix, 44 N. Y. 315 388
Moratzky v. Wirth, 67 Minn. 46, 69 N. W. 480 378
Morbach v. Mining Co., 53 Kan. 731, 37 Pac. 122. 121
Morch v. Railway Co., 113 Mich. 154, 71 N. W. 464 137
Moreland v. Leigh, 1 Starkie, 388 382
v. Railroad Co., 141 Mass. 31, 6 N. E. 225 207
Morey v. Town of Xewfane, 8 Barb. (X. Y.) 645 42G
Morgan v. Bowman, 22 Mo. 538 162
v. Bridge Co., 5 Dill. 96, Fed. Gas. Xo. 9,802 06, 84
v. City of Des Moines, 54 Fed. 456 426
v. Cox, 22 Mo. 373 367
v. Durfee, 69 Mo. 469 393
v. Iron Co., 133 X. Y. 666, 31 X. E. 234 102
v. Railway Co., 5 Best & S. 570, L. R. 1 Q. B. 149 130
Morganton Mfg. Co. v. Railway Co., 121 X. C. 514, 28 S. E. 474 296
Morgridge v. Telephone Co., 39 Atl. 328 149
Moriarty v. Railway Co., 64 Iowa, 696, 21 X. W. 143 345
Morier v. Railway Co., 31 Minn. 351, 17 X. W. 952 171
Morley v. Railway Co., 16 U. C. Q. B. 504 407
Morris v. Railroad Co., 68 Hun, 39, 22 X. Y. Supp. 666 77
45 Iowa, 29 38
65 Iowa, 727, 23 X. W. 143 401
v. Town of East Haven, 41 Conn. 252 100
Morrisey v. Hughes, 65 Vt 553, 27 Atl. 205 89
CASES CITED. 551
Page
Morrison v. Burnett, 56 111. App. 129 372
v. City of Lawrence, 98 Mass. 219 441, 445
v. Davis, 20 Pa. St. 171 24, 221, 225
v. Shelby Co., 116 Ind. 431, 19 N. E. 316 43
Morris & E. R. Co. v. Ayres, 29 X. J. Law, 393 288
v. Haslan, 33 X. J. Law, 147 75, 332
v. State, 36 X. J. Law, 553 353
Morrow v. Railway Co. (Minn.) 73 X. W. 973 99
v. Sweeney, 10 Ind. App. 626, 38 X. E. 187 305
Morse v. Slue, 1 Vent 190 229
Morton v. Railroad Co., 81 Mich. 423, 46 X. W. Ill 136
Moser v. Railroad Co., 42 Minn. 480, 44 X. W. 530 341
Moses v. Railroad Co., 24 X. H. 71, 91 239, 247, 254, 260, 261, 279
32 X. H. 523 286-288
Mosher v. Express Co., 38 Ga. 37 295
v. Railway Co., 23 Fed. 326 198
127 U. S. 390, 8 Sup. Ct. 1324 , 199
Moss v. Council, 93 Ga. 797, 20 S. E. 653 443
v. Jenkins, 146 Ind. 589, 45 X. E. 789 383
v. Johnson, 22 111. 633 93
Mote v. Railroad Co., 27 Iowa, 22 289
Motey v. Granite Co., 20 C. C. A. 366, 74 Fed. 155 10
Mott v. Ice Co., 73 X. Y. 543 173
Moulder v. Railroad Co., 1 Ohio X. P. 361 3
Moulton v. Inhabitants. 51 Me. 127 23
v. Railroad Co., 31 Minn. 85, 16 X. W. 497 249, 262, 266
Mt. Yernon Co. v. Railroad Co., 92 Ala. 296, 8 South. 687 279
Mouse's Case, 12 Coke, 63 452
Mower r. Inhabitants, 9 Mass. 247 454
Moynihan v. Hills Co., 146 Mass. 586-594, 16 N. E. 574 130, 133, 138
v. Whidden, 143 Mass. 287, 9 X. E. 645 66
Muckle v. Railway Co., 79 Hun, 32. 29 X. Y. Supp. 732 198
Muclgett v. Steamboat Co., 1 Daly (X. Y.) 151 275-277
Mulcairns v. City of Janesville, 67 Wis. 24, 29 X. W. 565 408
Muldoon v. Railway Co., 10 Wash. 311, 38 Pac. 995 191
Muldowney v. Traction Co., 8 Pa. Super. Ct. 335, 43 Wkly. Xotes Gas. 52. . 201
Mulhado v. Railroad Co., 30 X. Y. 370 181
Mulherrin v. Railroad Co., 81 Pa. St. 363 79
Mulholland v. Samuels, 8 Bush (Ky.) 63 387
Muller v. McKesson, 73 X. Y. 195 114
v. Pondir, 55 X. Y. 325 298
Mullett v. Mason, L. R. 1 C. P. 559 366
Mulligan v. Curtis, 100 Mass. 51 2 72
v. Railway Co., 36 Iowa, 181 256, 293, 295
129 X. Y. 506, 29 X. E. 952 173, 174
Mulvehill v. Bates, 31 Minn. 364, 17 X. W. 959 173
Mumford v. Brown, G Cow. (X. Y.) 475 315
Munch v. Railroad Co., 29 Barb. (X. Y.) 647 346
Muncie Pulp Co. v. Jones, 11 Ind. App. 110, 38 X. E. 547 94, 112
552 CASES CITED.
Page
Mundle v. Mfg. Co., 86 Me. 400, 30 Atl. 16 Ill, 112
Munger v. City of Sedalia, 66 Mo. App. 629 61
v. Railroad Co., 5 Denio (N. Y.) 255 341
4 N. Y. 349 37, 39, 340
Munn v. Baker, 2 Starkie, 255 238, 253, 256
Munns v. Loveland, 15 Utah, 250, 49 Pac. 743 382
Murch v. Railroad Corp., 29 N. H. 9 187
Murdock v. Inhabitants, 4 Gray (Mass.) 178 IS
v. Railroad Co., 137 Mass. 293 198
v. Walker, 43 111. App. 590 18, 19
Murphy v. Deane, 101 Mass. 455, 466 37, 82
v. Gloucester, 105 Mass. 470 4."..")
v. Holbrook, 20 Ohio St. 187 159
v. Hughes (Del. Super.) 40 Atl. 187 91, 97, 102
v. Pollock, 15 Ir. C. L. 224 98
v. Railroad Co., 30 Conn. 184 398
23 Fed. 637 195
2 Ir. (1897) 301 207
118 Mass. 228 183
88 N. Y. 146, 445 134. 406
45 Wis. 222 360
Murray v. Currie, L. R. 6 C. P. 24 129
v. Railroad Co., 31 La. Ann. 490 394
1 McMul. 385 124
v. Warner, 55 N. H. 546 281
Muscarro v. Railroad Co. (Pa. Sup.) 43 Atl. 527 330
Muschamp v. Railway Co., 8 Mees. & W. 421 182, 294
Musick v. Packing Co., 58 Mo. App. 322 148
Mutual Ins. Co. v. Tweed, 7 Wall. 44 351
Myers v. W. C. De Pauw Co., 138 Ind. 590, 38 N. E. 37 95
Mykleby v. Railway Co., 39 Minn. 54, 38 N. W. 763 185
Mynard v. Railroad Co., 71 N. Y. 180 245, 253, 262, 286
Mynning v. Railroad Co., 59 Mich. 257. 26 N. W. 514 405
Myrick v. Railroad Co., 9 Biss. 44, Fed. Cas. No. 10,001 293
1 Sup. Ct. 425 262, 290, 292, 294
Mytton v. Railway Co., 4 Hurl. & N. 614, 615 182
28 Law J. Exch. 385 .295
N
Nagel v. Railway Co., 75 Mo. 653 18. 69, 409
Nagle v. Railroad Co., 88 Pa. St. 35 66
Naglee v. Railroad Co., 83 Va. 707, 3 S. E. 369 209
Najac v. Railroad Co., 7 Allen (Mass.) 329 182
Nanson v. Jacob, 12 Mo. App. 125, 127 290
Nash v. Tousley, 28 Minn. 5, 8 N. W. 875 400
Nashua Iron & Steel Co. v. Railroad Co., 62 N. H. 159 38
Nashua Lock Co. v. Railroad Co., 48 N. H. 339 292, 295
CASES CITED. 553
Page
Nashville, C. & St. L. R. Co. v. Foster, 10 Lea, 351 149
v. Gann (Tenn. Sup.) 47 S. W. 493 11(3, 149
Nashville & C. R. Co. v. Carroll, 6 Heisk. (Tenu.) 347 149
v. David, 6 Heisk. (Tenn.) 261 221, 226
v. Estes, 10 Lea (Teiin.) 749 229, 232
v. Messino, 1 Sneed (Term.) 220 193, 206
v. Prince, 2 Heisk. (Tenn.) 580 39S
v. Smith, 6 Heisk. (Tenn.) 174 394
v. Sprayberry, 9 Heisk. (Tenn.) 852 182
Nason v. City of Boston, 14 Allen (Mass.) 508 433
National Fertilizer Co. v. Travis (Tenn. Sup.) 49 S. W. 832 149
Naugatuck R. Co. v. Button Co., 24 Conn. 468 292, 294
Nauruberg v. Young, 44 N. J. Law, 331-345 '. 315
Nave v. Flack, 90 Ind. 205 304.
Naylor v. Railway Co., 53 Wis. 661, 11 N. W. 24 112
Neal v. Gillett, 23 Conn. 437 36
v. Price, 11 Ga. 297 381
v. Railroad Co., 8 Jones, Law (N. C.) 482 283, 288
Needham v. Railroad Co., 37 Cal. 409 46, 51, 52, 342
38 Vt. 294 405
Neff v. Inhabitants, 148 Mass. 487, 20 N. E. Ill 75, 431
Neilson v. Brown, 13 R. I. 651 393
Nelliug v. Railroad Co., 98 Iowa, 554, 63 N. W. 404 152
Nelson v. Brewery Co., 2 C. P. Div. 311 312, 316
v. Car-Wheel Co., 29 Fed. 840 95
v. Railroad Co., 48 X. Y. 498 252
78 N. W. (Minn.) 1041 330
78 Tex. 621, 14 S. W. 1021 404, 420
88 Wis. 392, 60 X. W. 703 337
v. Shaw (Wis.) 78 N. W. 417 120
Nelson Business College Co. v. Lloyd (Ohio Sup.) 54 N. E. 471 169
Nesbit v. Town of Garner, 75 Iowa, 314, 39 N. W. 516 55, 60, 61
Nesbitt v. Lushington, 4 Term R. 783 229
Xetzer v. City of Crookston, 59 Minn. 244, 61 N. W. 21 432, 433
Neuert v. City of Boston, 120 Mass. 338 9, 452
Neutz v. Coke Co., 139 Ind. 411, 38 N. E. 324, 39 N. E. 147 147
Nevins v. Steamboat Co., 4 Bosw. (N. Y.) 225 198, 258, 271
New Albany Forge & Rolling Mill v. Cooper, 131 Ind. 363, 30 N. E. 294.161, 162
Newbold v. Mead, 57 Pa. St. 487 39
New Brunswick Steamboat & Canal Transp. Co. v. Tiers, 24 N. J. Law,
697 227, 228
Newdoll v. Young, 80 Hun, 364, 30 N. Y. Supp. 84 ' 62
Newell v. Smith, 49 Vt. 255 257
Newhall v. Vargas, 13 Me. 93 297
New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039 185
New Jersey Steam Nav. Co. v. Bank, 6 How. 343, 344, 382, 383
192, 238, 239, 254, 260, 286
Newlin Tp. v. Davis, 77 Pa. St. 317 456
554 CASES CITED.
Page-
Newman v. Railroad Co., 80 Iowa, 672, 45 N. W. 1054 394
52 N. J. Law, 446, 19 Atl. 1102 71
v. Schueck, 58 111. App. 328 374
New Orleans, J. & G. N. R. Co. v. Bailey, 40 Miss. 395 211
v. Hughes, 49 Miss. 258 133, 148
v. Hurst, 36 Miss. 660 180-
New Orleans Mut. Ins. Co. v. Railroad Co., 20 La. Ann. 302 238-
New Orleans, St L. & C. R. Co. v. Burke, 53 Miss. 200 '. 207
v. Faler, 58 Miss. 911 239
New Orleans & N. E. R. Co. v. McEwen & Murray, 49 La. Ann. 1184, 22
South. 675 32
v. Reese, 61 Miss. 581 166
Newport News & M. V. Co. v. Dentzel's Adm'r, 91 Ky. 42, 14 S. W. 958. .6, 398
v. Howe, 3 C. C. A. 121, 52 Fed. 362, 363 38, 125
Newport News & M. V. R. Co. v. Mendell (Ky.) 34 S. W. 1081 296
Newson v. Railroad Co., 29 N. Y. 383 211
Newton v. City of Worcester, 169 Mass. 516, 48 N. E. 274 434
v. Pope, 1 Cow. (N. Y.).109 31
New World, The, v. King, 16 How. 469 190>
New York Cent. R. Co. v. Lockwood, 17 Wall. 357 213, 239
New York Cent & H. R. R. Co. v. Fraloff, 100 U. S. 24. .230, 247, 267, 269, 27$
New York, 0. & St. L. R. Co. v. Blumenthal, 160 111. 40, 43 N. E. 809 191
v. Grossman, 17 Ind. App. 652, 46 N. E. 546 359-
v. Zumbaugh, 17 Ind. App. 171, 46 N. E. 548 34ff
New York, L. E. & W. R. Co. v. Burns, 51 N. J. Law, 340, 17 Atl. 630 190=
v. Steinbrenner, 47 N. J. Law, 161 57
New York, N. H. & H. R. Co. v. Blessing, 14 C. C. A. 394, 67 Fed. 277.. 336, 337
New York, P. & N. R. Co. v. Thomas, 92 Va. 606, 24 S. E. 264 355, 356-
New York & Brooklyn Sawmill & Lumber Co. v. City of Brooklyn, 71 N.
Y. 580 441
New York & E. R. Co. v. Skinner, 19 Pa. St. 298 34J.
New York & G. L. Ry. Co. v. Railway Co., 60 N. J. Law, 52, 37 Atl. 627. .. 87
New York & M. L. R. Co. v. Winans, 17 How. 30 209
Niagara, The, v. Cordes, 21 How. 7 221, 222
Nichols v. City of Minneapolis, 30 Minn. 545, 16 N. W. 410 426-
v. Smith, 115 Mass. 332 216
v. Winfrey, 79 Mo. 544 393
Nicholsburg v. Railroad Co., 11 Misc. Rep. 432, 32 N. Y. Supp. 130 41
Nicholson v. Railway Co., 3 Hurl. & C. 534 208
41 N. Y. 525 332
v. Willan, 5 East, 507 238
Niskern v. Railway Co., 22 Fed. 811 360
Nitro-Phosphate & O. C. Manure Co. v. Docks Co., 9 Ch. Div. 503 23, 2ft
Noble v. City of Richmond, 31 Grat. (Va.) 271 42.3
v. Railroad Co., 98 Mich. 249, 57 N. W. 126 202
4 Okl. 534, 46 Pac. 483 184
Noblesville & E. Gravel Road Co. v. Gause, 76 Ind. 142 171
Noble Tp. v. Aasen (N. D.) 76 N. W. 990 441
Nofsinger v. Goldman (Cal.) 55 Pac. 425 Ill
CASES CITED. 555
Page
Xohrden v. Railroad Co. (S. C.) 32 S. E. 524 416-
Nolan v. Railroad Co., 53 Conn. 461, 4 Atl. 106 44
70 Conn. 159, 39 'Atl. 115 102
41 X. Y. Super. Ct. 541 194
Noll v. Railroad Co., 163 Pa. St. 504, 30 Atl. 157 140
Nolton v. Railroad Corp., 15 X. Y. 444 188, 190
Nordyke & Marmon Co. v. Van Sant, 99 Ind. 188 90, 94, 97
Norfolk & P. R. Co. v. Ormsby, 27 Grat. (Va.) 455 71
Norfolk & W. R. Co. v. Adams, 90 Ya. 393, 18 S. E. G73 288
v. Ampey, 93 Ya. 108, 25 S. E. 226 90, 117
v. Brown, 91 Ya. 668, 22 S. E. 496 150
v. De Board's Adm'r, 91 Va. 700, 22 S. E. 514 327
v. Donnelly's Adm'r, 88 Va. 853, 14 S. E. 692 150
v. Groseclose's Adm'r, 88 Ya. 267, 13 S. E. 454 71, 178, 396-
v. Hoover, 79 Md. 253, 29 Atl. 994 99, 100, 148
v. Houchins' Adm'r, 95 Va. 398, 28 S. E. 578 132, 150
v. Irvine, 84 Va. 553, 5 S. E. 532; 85 Va. 217, 7 S. E. 233 272, 27
v. Marshall's Adm'r, 90 Va. 836, 20 S. E. 823 23
v. Xuekol's Adm'r, 91 Ya. 193, 21 S. E. 342 97
v. Shott, 92 Va. 34, 22 S. E. 811 188, 189-
v. Ward, 90 Va. 687, 19 S. E. 849 94
v. Wysor, 82 Va. 250 199-
Norris v. Kohler, 41 X. Y. 42 157
v. Litchfield, 35 X. H. 271, 277 46, 47
v. Railroad Co., 23 Fla. 182, 1 South. 475 226, 22T
39 Me. 273 .'.. 347
v. Warner, 59 111. App. 300 363
Norristown v. Moyer, 67 Pa. St. 355 25-
North Chicago Rolling-Mill Co. v. Johnson, 114 111. 57, 29 X. E. 186 134
v. Morrissey, 111 HI. 646 414
North Chicago St. R. Co. v. Cook, 145 111. 551, 33 X. E. 958 205
Northern v. Williams, 6 La. Ann. 578 286-
Northern Cent. R. Co. v. Husson, 101 Pa. St. 1 110
v. State, 29 Md. 420 2, 52, 54, 339^
Northern Pac. Coal Co. v. Richmond, 7 C. C. A. 485, 58 Fed. 756 126
Northern Pac. R. Co. v. Austin, 12 C. C. A. 97, 64 Fed. 211. 334
V. Charless, 162 U. S. 359, 16 Sup. Ct. 848 95, 145
7 U. S. App. 359, 2 C. C. A. 380, 51 Fed. 562 103
v. Craft, 16 C. C. A. 175, 69 Fed. 124 145
v. Everett, 152 U. S. 107, 14 Sup. Ct 474 108
v. Freeman, 174 U. S. 379. 19 Sup. Ct. 763 330
v. Herbert, 116 U. S. 642, 647, 650-653, 6 Sup. Ct. 590, 593
90, 96, 132, 137, 145
v. Mortenson. 11 C. C. A. 335, 63 Fed. 530 110
v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843 95
v. Poirier, 15 C. C. A. 52, 67 Fed. 881 90-
Northern R. Co. v. Page, 22 Barb. (X. Y.) 130 198, 201
v. Railroad Co., 6 Allen (Mass.) 254 291
-556 CASES CITED.
Page
North Pennsylvania R. Co. v. Heileman, 49 Pa. St. GO 82, 332
v. Kirk, 90 Pa. St. 15 8G, 410, 414
v. Mahoney, 57 Pa. St. 187 65, 71
v. Rehman, 49 Pa. St. 101 341
Northrup v. Assurance Co., 43 N. Y. 516 179
v. Railway Co., 37 Hun (N. Y.) 295 87, 335
Northwestern Fuel Co. v. Danielson, 6 C. C. A. 636, 57 Fed. 915-919 151
Norton v. City of New Bedford, 166 Mass. 48, 43 N. E. 1034 443
v. Railroad Co., 122 N. C. 910, 29 S. E. 886 339
v. The Richard Winslow, 67 Fed. 259 285
v. Sewall, 106 Mass. 143 369, 370
v. Yolzke, 158 111. 402, 41 N. E. 1085 68
Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 28 Atl. 32..161, 162
Norway Plains Co. v. Railroad Co., 1 Gray (Mass.) 263 216, 282, 288
Notara v. Henderson, L. R. 5 Q. B. 346, L. R. 7 Q. B. 225 222
Nourie v. Theobald (N. H.) 41 Atl. 182 109
Nourse v. Packard, 138 Mass. 307 398
Noyes v. Railroad Co., 24 Pac. (Cal.) 927 394
27 Vt. 110 216
v. Smith, 28 Vt. 59 89
Nudd v. Wells, 11 Wis. 407 235
Nugent v. Railroad Co., 80 Me. 62, 12 Atl. 797 117, 209
v. Smith, 1 C. P. Div. 19, 27, 423 215, 221
v. Vanderveer, 39 Hun (N. Y.) 323 399
Nunn v. Railroad Co., 71 Ga. 710 180
Nuss v. Rafsnyder, 178 Pa. St. 397, 35 Atl. 958 116
Nutt r. Railway Co., 25 Or. 291, 35 Pac. 653 91
Nutting v. Railroad Co., 1 Gray (Mass.) 502 294
Oakes v. Railroad Co., 20 Or. 392, 26 Pac. 230 271, 272
v. Spaulding, 40 Vt. 347 362
Oakland City Agricultural & Industrial Soc. v. Bingham, 4 Ind. App. 545,
31 N. E. 383 174
Oakland Ry. Co. v. Fielding, 48 Pa. St. 320 67
O'Bannon v. Express Co., 51 Ala. 481 280
O'Barr v. Alexander, 37 Ga. 195 372
Obert v. Dunn, 140 Mo. 476, 41 S. W. 901 301
O'Briant v. Wilkerson, 122 N. C. 304, 30 S. E. 126 382
O'Brien v. Capwell, 59 Barb. (N. Y.) 497 311, 315, 316
v. Dredging Co., 53 N. J. Law, 291, 21 Atl. 324 132, 148
v. McGlinchy, 68 Me. 552 72, 86
v. Railroad Co., 15 Gray (Mass.) 20 183, 185
80 N. Y. 236 1S4
O'Callaghan v. Bode, 84 Cal. 489, 24 Pac. 269 411
Ocean S. S. Co. of Savannah v. Way, 90 Ga. 747, 17 S. E. 57 230
Ochsenbein v. Shapely, 85 N. Y. 214 154, 168
CASES CITED. 657
Page
O'Connor v. Adams, 120 Mass. 427 86, 106, 123-
v. Andrews, 81 Tex. 28, 16 S. W. 628 313
v. Barker, 25 App. Div. 121, 49 X. Y. Supp. 211 133
v. Ditch Co., 17 Xev. 245, 30 Pac. 882 37
v. Railroad Co., 135 Mass. 352 68
27 Minn. 166, 6 X. W. 481 344
94 Mo. 150, 7 S. W. 106 45, 325
O'Donnell v. Pollock, 170 Mass. 441, 49 X. E. 745 362
v. Railroad Co., 59 Pa. St. 239 93, 190, 196
O'Dwyer v. O'Brien, 13 App. Div. 570, 43 X. Y. Supp. 815 316
O'Flaherty v. Railroad Co., 45 Mo. 70 63, 66
Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123 222, 239, 294
Og;.' v. City of Lansing, 35 Iowa, 495 450, 453
Ogle v. Jones, 16 Wash. 319, 47 Pac. 747 150
Ohio Yalley Railway's Receiver v. Lander (Ky.) 47 S. W. 344, 48 S. W. 145 195
Ohio & M. R. Co. v. Allender, 59 111. App. 620 191
v. Clutter, 82 111. 123 346-
v. Dunbar, 20 111. 624 217, 233, 262
V. Emrich, 24 111. App. 245 293
v. Hammersley, 28 Ind. 371 123
v. Muhling, 30 111. 9 183, 190
v. Xickless, 71 Ind. 271 86-
v. Selby, 47 Ind. 471 212, 23S
v. Shanefelt, 47 111. 497 355
v. Siinms, 43 111. App. 260 171
v. Stein, 140 Ind. 61, 39 X. E. 246 147
v. Tabor, 98 Ky. 503, 32 S, W. 168 249-
v. Yohe. 51 Ind. 181 232
Oil City Fuel-Supply Co. v. Boundy, 122 Pa. St. 449, 15 Atl. 865 37
Oil City Gas Co. v. Robinson, 99 Pa. St 1 27
Oil Creek & A. R. Ry. Co. v. Clark, 72 Pa. St. 231 200
Oldenburg v. Railroad Co., 124 X. Y. 414, 26 X. E. 1021 333
Oldfield v. Railroad Co., 14 X. Y. 310 403, 405, 409, 411
O'Leary v. Board, 79 Mich. 281, 44 X. W. 608 450
v. City of Mankato, 21 Minn. 65 435-
Oliver v. City of Denver (Colo. App.) 57 Pac. 729 435
v. City of Worcester, 102 Mass. 489 426, 430, 431, 449-
v. Railroad Co., 42 W. Va. 703, 26 S. E. 444 89
O'Loughlin v. Railroad Co., 87 Hun, 538, 34 X. Y. Supp. 297 98
Olson v. Railroad Co., 45 Minn. 536, 48 N. W. 445 191
Oinaha Fair & Exposition Ass'n v. Railroad Co., 42 Xeb. 105, 60 X. W. 330. . 300
Omaha St. Ry. Co. v. Martin, 48 Xeb. 65, 66 X. W. 1007 38, 52, 85-
Omaha & R. V. Ry. Co. v. Crow, 47 Xeb. 84, 66 X. W. 121 191
54 Xeb. 747, 74 X. W. 1066 148, 182
v. Krayenbuhl, 48 Xeb. 553. 67 X. W. 447 148
v. Martin, 14 Xeb. 295, 15 X. W. 696 49
v. Morgan (Xeb.) 59 X. W. 81 67
v. Talbot, 48 Xeb. 627, 67 X. W. 599 60
v. Wright, 47 Xeb. 886, 66 X. W. 842 342, 343
558 CASES CITED.
Page
O'Maley v. Gaslight Co., 158 Mass. 135, 32 X. E. 1119 48, 1_'4
O'Malley v. Borough of Parsons (Pa. Sup.) 43 Atl. 384 435
v. Railway Co., 43 Minn. 294, 45 N. W. 440 306, 307
O'Mara v. Canal Co., 18 Hun (N. Y.) 192 335
v. Railroad Co., 38 N. Y. 445 76, 336, 409, 411
Onderdonk v. Railway Co., 74 Hun, 42, 26 N. Y. Supp. 310 181
O'Neal v. Railway Co., 132 Ind. 110, 31 X. E. 669 108, 112
O'Neil v. Railway Co., 9 Fed. 337 91, 96
O'Neill v. City of New Orleans, 30 La. Ann. 220 425
v. Railroad Co., 60 N. Y. 138 279, 280
Onondaga County Bank v. Bates, 3 Hill (X. Y.) 53 386
Oppenheimer v. Express Co., 69 111. 62 249, 261
Orange County Bank v. Brown, 9 Wend. (N. Y.) 85, 114, 116
231, 260, 267, 270, 271
Orange & N. H. R. Co. v. Ward, 47 N. J. Law, 560, 4 Atl. 331 86
Orcutt v. Railroad Co., 45 Minn. 368, 47 N. W. 1068 191
Orman v. Mannix, 17 Colo. 564, 30 Pac. 1037 146
Ormsbee v. Railroad Corp., 14 R. I. 102 336
Ormsby v. Railroad Co., 2 McCrary, 48, 4 Fed. 170, 706 235, 251
O'Rourke v. Railroad Co., 44 Iowa, 526 38, 51
v. Tons of Coal, 1 Fed. 619 285
Orr v. Box, 22 Minn. 485 382
Ortt v. Railway Co., 36 Minn. 396, 31 N. W. 519 239
Osborn v. Ferry Co., 53 Barb. (N. Y.) 629 208
Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543 158, 369, 370, 399
v. Morgan, 130 Mass. 102 130
Ostrander v. City of Lansing, 111 Mich. 693, 70 N. W. 332 430
Otis v. Town of Janesville, 47 Wis. 422, 2 X. W. 783 39, 60
Otten v. Cohen (City Ct. X. Y.) 1 X. Y. Supp. 430 19
Ouimit v. Henshaw, 35 Vt. 604, 605 269, 272, 287, 289
Ouverson v. City of Graf ton, 5 X. D. 281, 65 X. W. 676 60, 436
Overby v. Railway Co., 37 W. Va. 524, 16 S. E. 813 38
Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74 412
Overland Mail & Express Co. v. Carroll, 7 Colo. 43, 1 Pac. 682 238
Overton v. Freeman, 11 C. B. 867 166, 167
Owen v. Brockschmidt, 54 Mo. 285 406
v. Railroad Co., 87 Ky. 626, 9 S. W. 698 251
Owens v. Railroad Co., 58 Mo. 386 344
Owings y. Jones, 9 Md. 108 313
P
Pacific, The, 1 Blatchf . 569, Fed. Gas. Xo. 10,643 193
Pacific Exp. Co. v. Darnell (Tex. Sup.) 6 S. W. 765 251
v. Foley, 46 Kan. 457, 26 Pac. 665 247
Pacific R. Co. v. Houts, 12 Kan. 328 80
Packard v. Earle, 113 Mass. 280 282
V. Getman, 6 Cow. (X. Y.) 757 280, 281
V. Taylor, 35 Ark. 402 228
CASES CITED. 559
Page
Paddock v. Railroad Co., 37 Fed. 841 175
Padgett Y. Railroad Co., 7 Kan. App. 736, 52 Pac. 578 82, 356, 350
Paducah & M. R. Co. v. Hoehl, 12 Bush (Ky.) 41 336
Page v. Bucksport, 64 Me. 51 13
v. Gushing, 38 Me. 523 383
v. Hodge, 63 X. H. 610, 4 Atl. 805 55
Paige v. Roeding, 96 Cal. 388, 31 Pac. 264 156, 157
v. Smith, 99 Mass. 395 216
Painter v. Mayor, etc., 46 Pa. St. 213 300
Painton v. Railroad Co., 83 N. Y. 7 118
Palmer v. Canal Co., 120 X. Y. 170, 24 N. E. 302 29, 203
v. Inhabitants, 2 Cush. (Mass.) 600 23
y. Lorillard, 16 Johns. (X. Y.) 348 236
v. McMaster, 10 Mont. 390, 25 Pac. 1056 383
v. Pennsylvania Co., Ill X. Y. 488, 18 X. E. 859 207
v. Railroad Co., 101 Cal. 187, 35 Pac. 630 225, 227
112 X. Y. 234, 19 X. K 678 325, 333, 399
Palmeri v. Railway Co., 133 X. Y. 261, 30 X. E. 1001 170, 174
Panton v. Holland, 17 Johns. (X. Y.) 92 301
Pantzar v. Mining Co., 99 X. Y. 368, 2 X. E. 24 117
Pardee v. Drew, 25 Wend. (X. Y.) 459 231, 267
Pardey v. Incorporated Town of Mechanicsville, 101 Iowa, 266, 70 N. W. 189 437
Parish v. Town of Eden, 62 Wis. 272, 22 X. W. 399 420-, 422
Paris, M. & S. P. Ry. Co. v. Xesbitt, 11 Tex. Civ. App. 608, 33 S. W. 280. . 355
38 S. W. 243 32
Park v. Railroad Co., 85 Hun, 184, 32 X. Y. Supp. 482 99
155 X. Y. 215, 49 X. E. 674 99
Parker v. Adams, 12 Mete. (Mass.) 415 332
v. Barnard, 135 Mass. 116 304
v. Canfield (Mich.) 74 X. W. 296 383
v. City of Cohoes, 10 Hun (X. Y.) 531 19
v. City of Lowell, 11 Gray (Mass.) 353 429
v. Flagg, 26 Me. 181 216, 218
v. James. 4 Camp. 112 230
v. Railroad Oo., 34 Iowa, 399 342, 344
69 Mo. App. 54 202
18 R. I. 773, 30 Atl. 849 149
30 Wis. 689 287
v. Sample, 11 Ind. App. 698, 39 X. E. 173 99
Parkhurst v. Johnson, 50 Mich. 70, 15 X. W. 107 106
Parlin & Orendorff Co. v. Dinfrouck, 65 111. App. 174 93
Parmalee v. Wilks, 22 Barb. (X. Y.) 539 237
Parmelee v. Fischer, 22 111. 212 269
v. Lowitz, 74 111. 116 216
v. McXulty, 19 111. 556 216
Parody v. Railway Co., 15 Fed. 205 120
Parrish v. Railroad Co., 28 Fla. 251, 9 South. 696 146
Parrot v. Wells, Fargo & Co., 15 Wall. 524 369
Parrott v. Dearborn, 104 Mass. 104 382
O60 CASES CITED.
Page
Parsons v. Hardy, 14 Wend. (N. Y.) 215 216, 218, 227, 235, 236-
v. Monteath, 13 Barb. (N. Y.) 353 227
v. Railway Co., 94 Mo. 286, 6 S. W. 464 41O
113 N. Y. 355, 21 N. E. 145 17$
Partenheimer v. Van Order, 20 Barb. (N. Y.) 479 107
Paschal v. Owen, 77 Tex. 583, 14 S. W. 203 420>
Passenger R. Co. v. Young, 21 Ohio St. 518 168
Pastene v. Adams, 49 Cal. 87 26, 45, 304
Patch v. City of Covington, 17 B. Mon. (Ky.) 722 450
Patrick v. Pote, 117 Mass. 297 38=
Patrie v. Railroad Co. (Idaho) 56 Pac. 82 345
Patscheider v. Railway Co., 3 Exch. Div. 153 289-
Patten v. Railway Co., 32 Wis. 524, 36 Wis. 413 208
v. Wiggin, 51 Me. 594 '. 377, 378
Patterson v. Clyde, 67 Pa. St. 500 219
v. Hemenway, 148 Mass. 94, 19 N. E. 15 42
v. Railroad Co., 4 Houst. (Del.) 103 88
76 Pa. St. 389 120
Patton v. Railway Co., 27 C. C. A. 287, 82 Fed. 979 87
96 N. C. 455, 1 S. E. 863 149
Patton's Adm'rs v. Magrath, Dud. (S. C.) 159 227
Paule v. Mining Co., 80 Wis. 350, 50 N. W. 189 122, 123
Paulmier v. Railroad Co., 34 N. J. Law, 151 54
Payne v. Partridge, 1 Show. 231 455
v. Railroad Co., 39 Iowa, 523 394
129 Mo. 405, 31 S. W. 885 37, 68
136 Mo. 562, 38 S. W. 308 338
v. Reese, 100 Pa. St. 301 87, 91
v. Rogers, 2 H. Bl. 350 .311, 312
Peach v. City of Utica, 10 Hun (N. Y.) 477 75, 336
Peake v. Buell, 90 Wis. 508, 63 N. W. 1053 50
Pearce v. The Thomas Newton, 41 Fed. 106 227
Peard v. City of Mt. Vernon, 158 N. Y. 681, 52 N. E. 1125 434
Pearson v. Duane, 4 Wall. 605 184, 192, 194
v. Railroad Co., 45 Iowa, 497 342, 343
Pease v. Railroad Co., 101 N. Y. 367, 5 N. E. 37 1S4
Peavy v. Railroad Co., 81 Ga. 485, 8 S. E. 70 183, 197
Peck v. City of Michigan City, 149 Ind. 670, 49 N. E. 800 430
v. Hurlburt, 46 Barb. (N. Y.) 559 382
v. Hutchinson, 88 Iowa, 320, 55 N. W. 511 376, 377
v. Martin, 17 Ind. 115 378
v. Railroad Co., 37 App. Div. 110, 55 N. Y. Supp. 1121 358
50 Conn. 379 61
70 N. Y. 587 195
v. Village of Batavia, 32 Barb. 634 4
v. Weeks, 34 Conn. 145 223
Peet v. Railroad Co., 20 Wis. 594 233
Pegram v. Stortz, 31 W. Va. 220, 6 S. E. 485 400
Peik v. Railway Co., 94 U. S. 164 201
CASES CITED. 561
Page
Feirce v. Oliver, 18 Ind. App. 87, 47 N. E. 485 86, 147
v. Partridge, 3 Mete. (Mass.) 44 381
v. Radderman, 77 111. App. 619 346
Pelky v. Palmer, 109 Mich. 561, 67 N. W. 561 377, 379
Pelton v. Railroad Co., 54 N. Y. 214 287
v. Schmidt, 104 Mich. 345, 62 N. W. 552 49, 50, 306, 307
Pemberton Co. v. Railroad Co., 104 Mass. 144, 151 239
Pendergast v. Express Co., 101 Mass. 120 294
Peniston v. Railroad Co., 34 La. Ann. 777. 208-
Penn v. Railroad Co., 49 N. Y. 204 262, 266
Pennewill v. Cullen, 5 Har. (Del.) 238 227
Pennington v. Railroad Co., 62 Md. 95 199
Pennington's Ex'rs v. Yell, 11 Ark. 212 374, 375
Pennoyer v. Willis (Or.) 32 Pac. 57 374
Pennsylvania Canal Co. v. Bentley, 66 Pa. St. 30 330-
Pennsylvania Cent. R. Co. v. Schwarzenberger, 45 Pa. St. 408 294
Pennsylvania Coal Co. v. Nee (Pa. Sup.) 13 Atl. 841 410
Pennsylvania Co. v. Bray, 125 Ind. 229, 25 N. E. 439 198
v. Davis, 4 Ind. App. 51, 29 N. E. 425 402
v. Ebaugh (Ind. Sup.) 53 N. E. 763 109
v. Gallagher, 40 Ohio St. 637 189, 211
v. Hoagland, 78 Iiid. 203 k 205
v. Keane, 143 111. 172, 32 N. E. 260 412
v. Kenwood Bridge Co., 170 111. 645, 49 N. E. 215 232
v. Krick, 47 Ind. 368 323-
v. Lilly, 73 Ind. 252 406, 417
v. Liveright, 14 Ind. App. 318, 41 N. E. 350 289
v. Marion, 123 Ind. 415, 23 N. E. 973 208
v. Miller, 35 Ohio St. 541 271, 273
v. Morel, 40 Ohio St. 338 335
v. Xewmeyer, 129 Ind. 401, 28 N. E. 860 205
v. Roney, 89 Ind. 453 41
v. Roy, 102 U. S. 451 29, 155, 203
v. Smith, 98 Ind. 42 S
v. Toorney, 91 Pa. St. 256 169
v. Whitcomb, 111 Ind. 212, 12 N. E. 380 133, 146
T. Whitlock, 99 Ind. 16. 16, 17, 19
v. Woodworth, 26 Ohio St. 585 188, 189
Pennsylvania R. Co. \. Adams, 55 Pa. St. 499 410
v. Aspell, 23 Pa. St. 147 205
v. Bantom, 54 Pa. St. 495 406
v. Barnett, 59 Pa. St. 259 324
v. Beale, 73 Pa. St. 504 83, 330
v. Bell, 122 Pa. St. 58, 15 Atl. 561 394
v. Butler, 57 Pa. St. 335 407
v. Connell, 112 111. 295 181, 182, 186i
v. Coon, m Pa. St. 430, 3 Atl. 234 323
v. Goodman, 62 Pa. St. 329 408
v. Henderson, 51 Pa. St. 315 208, 212, 405
BAR.XEG. 36
562 CASES CITED.
Page
Pennsylvania R. Co. v. James, 81 Pa. St. 194 395
v. Keller, 07 Pa. St. 300.. 410
v. Kerr, 62 Pa. St. 333 10, 352
v. Kilgore, 32 Pa. St. 292 181
v. Knight, 58 N. J. Law, 287, 33 Atl. S45 274
v. Langdon, 92 Pa. St. 21 196
Y. Lewis, 79 Pa. St. 33 ^594, 395
v. Lilly, 73 Ind. 252 409
v. Matthews, 36 X. J. Law, 531 2
v. Miller, 87 Pa. St. 395 219
v. Ogier, 35 Pa. St. 60 328, 414
v. Parry, 55 N. J. Law, 551, 27 Atl. 914 200
v. Price, 96 Pa. St. 256 188, 189
v. Railroad Co., 118 U. S. 290, 6 Sup. Ct. 1094 209
v. Rairordon, 119 Pa. St. 577, 13 Atl. 324 218
v. Snyder, 55 Ohio St. 342, 45 N. E. 559 41
v. Spicker, 105 Pa. St. 142 200
v. Vandever, 36 Pa. St. 298 414
v. Vandiver, 42 Pa. St. 3U5 169, 185
v. Weber, 76 Pa. St. 157 84
v. Zebe, 33 Pa. St. 318 394, 405, 406, 409, 410
Pennsylvania Tel. Co. v. Varnau (Pa.) 15 Atl. 624 42, 407
Penny v. Railway Co., 7 App. Div. 595, 40 X. Y. Supp. 172 66
34 App. Div. 10, 53 X. Y. Supp. 1043 158
People v. Bartels, 138 111. 322, 27 X. E. 1091 388
v. Board, 74 X. Y. 310 456
v. Butler, 74 Mich. 643, 42 X. W. 273 386
v. Chappell, 27 Mich. 486 367
v. City of Albany, 11 Wend. (N. Y.) 539 450
v. Colby, 39 Mich. 436 386
v. Eastwood, 14 X. Y. 562 7<3, 79
v. Gaynor, 33 App. Div. 98, 53 X. Y. Supp. 86 79
v. Hurlbut, 24 Mich. 44 443
v. McDonald, 69 X. Y. 362 443
v. Mahaney, 13 Mich. 481 443
V. Morris, 13 Wend. (X. Y.) 325 424
v. Roby, 52 Mich. 577, 18 X. W. 363 '. 169
Peoria Bridge Ass'n v. Loomis, 20 111. 235, 71 Am. Dec. 263 5
Peoria, D. & E. Ry. Co. v. Hardwick, 53 111. App. 161 108
Pepper v. Railroad Co., 105 Cal. 389, 38 Pac. 974 337
v. Southern Pac. Co., 105 Cal. 389, 38 Pac. 974 331
Pereira v. Railroad Co., 66 Cal. 92, 4 Pac. 988 .234, 237, 293
Perham v. Electric Co. (Or.) 53 Pac. 14 398
Perigo v. Brewing Co. (Ind. App.) 52 X. E. 462 147
Perionowsky v. Freeman, 4 Fost. & F. 977 378
Perkins v. Mossrnan, 44 X. J. Law, 579 363
V. Railroad Co., 29 Me. 307 342
47 Me. 573 294
24 N. Y. 96, 196, 197, 219 190, 204, 245
CASES CITED. 563
Page
Perley v. Railroad Co., 98 Mass. 414, 418, 419 352, 353
Perry T. Railroad Co., 29 Kan. 420 .401-403
v. Ricketts, 55 111. 234 90
v. Rogers, 157 X. Y. 251, 51 X. E. 1021 133
Pershing v. Railway Co., 71 Iowa, 501. 32 X. W. 488 203
Peru & I. R. Co. v. Bradshaw, 6 Ind. 140 400
Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598 49, 307
v. Rylands, 20 Pa. St. 497 209
Petersen v. Case, 21 Fed. 885 235
Peterson v. Mining Co., 50 Iowa, G73 147
Petrie v. Railroad Co., 42 X. J. Law, 449 198
29 S.' C. 303, 7 S. E. 515 406, 412
Pettit v. Board, 87 Fed. 7G8 454
Peverly v. City of Boston, 136 Mass. 366 39
Pfister v. Railroad Co., 70 Cal. 169, 11 Pac. 686 272
Phelps v.' City of Mankato. 23 Minn. 277 437
v. Xowlen, 72 X. Y. 39 301
v. Railway Co., 19 C. B. (X. S.) 321 271
Phifer v. Railway Co., 89 X. C. 311 239
Philadelphia City Pass. R. Co. v. Hassard, 75 Pa. St. 367 67, 206
Philadelphia, W. & B. R. Co. v. Anderson, 72 Md. 519, 20 Atl. 2 180
v. Hogeland, 66 Md. 149, 7 Atl. 105 57, 59
T. Keenan, 103 Pa. St. 124 92
v. Kerr, 25 Md. 521 46
v. Larkin, 47 Md. 155 186
v. Lehman, 56 Md. 209 235, 237
v. McCormick, 124 Pa. St. 427, 16 Atl. 848 180
v. State, 58 Md. 372 189, 211, 415
v. Stinger, 78 Pa. St. 225 2
v. Towboat Co., 23 How. 209 46
Philadelphia & R. R. Co. v. Boyer, 97 Pa. St. 91 394
v. Derby, 14 How. (U. S.) 468, 486 170, 190, 213, 305
v. Edelstein (Pa. Sup.) 16 Atl. 847 180
v. Hendrickson, 80 Pa. St 182 360
v. Huber, 128 Pa. St. 63, 18 Atl. 334 117
v. Killips, 88 Pa. St. 405 324
v. Long, 75 Pa. St. 257 62-64, 71, 395
v. Peebles, 14 C. C. A. 555, 67 Fed. 591 330, 337
v. Schultz, 93 Pa. St. 341 359
v. Spearen. 47 Pa. St. 300 67, 327, 336
T. Yeiser, 8 Pa. St. 366 353, 354
v. Yerger. 73 Pa. St. 121 353, 358
Philbrick v. City of Xiles, 25 Fed. 265 42
Phillips v. Brigham, 26 Ga. 617 224
v. Earle, 8 Pick. (Mass.) 182 230, 231, 280
v. Lamar, 27 Ga. 228 385
v. Michaels, 11 Ind. App. 672, 39 X. E. 669 119
v. Railroad Co.. 80 Hun, 404, 30 X. Y. Supp. 333 335
111 Mich. 274. 69 X. W. 496. . . 336
564 CASES CITED.
Page-
Phillips v. Railroad Co., 127 N. Y. 657, 27 N. E. 978 27
32 S. E. (N. C.) 388 177
78 N. C. 294 291, 294
77 Wis. 349, 46 N. W. 543 418
Pickard v. Smith, 10 C. B. (N. S.) 470 51, 31T
Pickens v. Railroad Co., 104 N. C. 312, 10 S. E. 556 184
Pickering v. Barkley, Style, 132 230'
v. Orange, 2 111. 338, 492 364
Pickett v. Railroad Co., 117 N. C. 616, 23 S. E. 264 339-
Pickford v. Railway Co., 8 Mees. & W. 372 193-
Piedmont Mfg. Co. v. Railroad Co., 19 S. C. 353 292-294
Pierce v. Conners, 20 Colo. 178, 37 Pac. 721 67
v. Gray, 63 111. App. 158 181
v. Michel, 1 Mo. App. Rep'r, 74 20, 27
v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302 240, 248
v. Steamship Co., 153 Mass. 87, 26 N. E. 415 .38, 398
v. Whitcomb, 48 Vt 127 305
Piette v. Brewing Co., 91 Mich. 605, 52 N. W. 152 161
Piggot v. Railroad Co., 3 C. B. 229 356, 357
Pindell v. Railway Co., 34 Mo. App. 675, 683 288
Pingree v. Railroad Co., 66 Mich. 143, 33 N. W. 298 232, 233
Pinkston v. Arrington, 98 Ala. 489, 13 South. 561 374, 375
Pinney v. Railroad Co., 19 Minn. 251 (Gil. 211) 287,
71 Mo. App. 577 32, 336
Piollet v. Simmers, 106 Pa. St. 95 46
Pitt v. Yalden, 4 Burrows, 2060 372
Pittsburgh, A. & M. Pass. Ry. Co. v. Caldwell, 74 Pa. St. 421 66, 73
Pittsburgh, A. & M. Ry. Co. v. Pearson, 72 Pa. St. 169 62, 63, 395-
Pittsburgh, C., C. & St. L. Ry. Co. v. Berryman, 11 Ind. App. 640, 36
N. E. 728 198
v. Lewis (Ky.) 38 S. W. 482 339'
v. Russ, 6 C. C. A. 597, 57 Fed. 822 186
v. Shaw, 15 Ind. App. 173, 43 N. E. 957 338
v. Sheppard, 56 Ohio St. 68, 46 N. E. 61 240
Pittsburgh, C. & St. L. Ry. Co. v. Adams, 105 Ind. 151, 5 N. E. 187. ..118, 123
v. Dewin, 86 111. 286 183
v. Hine, 25 Ohio St. 629 420
v. Hollowell, 65 Ind. 188 229, 235
v. Jones, 86 Ind. 496 359
v. Kirk, 102 Ind. 399, 1 N. E. 849 169
v. Krouse, 30 Ohio St. 222 179
v. Martin (Super. Ct. Gin.) 2 Ohio N. P. 353 178, 179
v. Morton, 61 Ind. 539 294
v. Nash, 43 Ind. 423, 426 288
v. Nelson, 51 Ind. 150 355
V. Smith, 26 Ohio St. 124 348
v. Stuart, 71 Ind. 500 340
v. Thompson, 56 111. 138 203
V. Vandyne, 57 Ind. 576 175, 192.
CASES CITED. 565
Page
Pittsburgh, Ft. W. & C. R. Co. v. Hazen, 84 111. 36 229, 235
v. Hinds, 53 'Pa. St. 512 192, 207
v. Krichbaum's Adm'r, 24 Ohio St. 119 88
v. Maurer, 21 Ohio St. 421 174
v. Methven, 21 Ohio St. 586 341
v. Powers, 74 111. 341 102
v. Vining's Adm'r, 27 Ind. 513 62, 70
Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. St. 306 10, 11
Pittsburgh & C. R. Co. v. Pillow, 76 Pa. St. 510 192, 207
Pixley v. Clark, 32 Barb. (X. Y.) 268 319
35 X. Y. 520 317, 318
Place v. Express Co., 2 Hilt. (X. Y.) 19 237
Plaisted v. Navigation Co., 27 Me. 132 227
Plank v. Railroad Co., 60 N. Y. 607 93
Platt v. Railway Co., 84 Iowa, 694, 51 N. W. 254 42
4 Thomp. & C. 406 179
Platte & D. Canal & Milling Co. v. Do well, 17 Colo. 376, 30 Pac. 68 73
Plattsmouth Water Co. v. Smith (Neb.) 78 X. W. 275 317
Platz v. City of Cohoes, 24 Hun (X. Y.) 101 61
Pleasants v. Railroad Co., 121 X. C. 492, 28 S. E. 267 149
Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138 195
Ploen v. Staff, 9 Mo. App. 309 314, 317
Ploof v. Traction Co., 69 Vt. 509, 41 Atl. 1017 71
70 Vt. 509, 41 Atl. 1017 63
Plummer v. Dill, 156 Mass. 426, 31 N. E. 128 50
v. Ricker (Tt.) 41 Atl. 1045 362
Poeppers v. Railroad Co., 67 Mo. 715 353
Pollard v. Railroad Co., 87 Me. 51, 32 Atl. 735 18
Pollett v. Long, 56 X. Y. 200 54
Poineroy v. Donaldson, 5 Mo. 36 216
v. Railroad Co., 172 Mass. 92, 51 N. E. 523 205
Pontiac v. Carter, 32 Mich. 164 442
Pool v. Railroad Co., 7 Utah, 303, 26 Pac. 654 407
Poole r. Railroad Co., 89 Ga. 320, 15 S. E. 321 205
Poor v. Sears, 154 Mass. 539, 28 N. E. 1046 56, 512
Pope r. Boyle, 98 Mo. 527, 11 S. W. 1010 312
Porter v. Hildebrand, 14 Pa. St. 129 269
v. Machine Co., 94 Tenn. 370, 29 S. W. 227 97.
v. The Xew England, 17 Mo. 290 210
v. Railroad Co., 20 111. 407 288
Porterfleld v. Humphreys, 8 Humph. (Tenn.) 497 262
Post v. Railroad Co., 14 Xeb. 110, 15 X. W. 225 199
Postal Tel. Cable Co. v. Brantley, 107 Ala. 683, 18 South. 321 159, 168, 169
v. Hulsey, 115 Ala. 193, 22 South. 854 145
v. Zopfi, 19 C. C. A. 605, 73 Fed. 609, 93 Tenn. 369, 24 S. W. G33 19
Potter v. Faulkner, 31 Law J. Q. B. 30 129
v. Gas Co., 183 Pa. St. 575, 39 Atl. 7 16
v. Railroad Co., 46 Iowa, 399 132, 147
20Wis. 533.. o
566 CASES CITED.
Page
Potter v. Railroad Co., 21 Wis. 372 405, 412
22 Wis. 615 410, 414
Potts v. Button, 8 Beav. 493 373-
Potulni v. Sauoders, 37 Minn. 517, 35 N. W. 379 168
Poucher v. Railroad Co., 49 N. Y. 263 178
Powell v. Construction Co., 88 Tenn. 692, 13 S. W. 691 161
v. Deveney, 3 Cush. (Mass.) 300 26, 159, 352
V. Mills, 30 Miss. 231 21ft
37 Miss. 691 234r
v. Railroad Co., 59 Mo. App. 626 326
32 Pa. St. 414 233, 262
Power v. Harlow, 57 Mich. 107, 23 N. W. 606 71
Powers v. City of Boston, 154 Mass. 60, 27 N. E. 995 436-
v. Davenport, 7 Blackf. (Ind.) 497 216, 224
Prairie State Loan & Trust Co. v. Doig, 70 111. 52 30O
Prather v. City of Lexington, 13 B. Mon. (Ky.) 559 452
Pratt v. Railway Co., 107 Iowa, 287, 77 N. W. 10U4 25
102 Mass. 557 294
Prendergast v. Compton, 8 Car. & P. 454 183-
Prendible v. Mfg. Co., 160 Mass. 131, 35 N. E. 675 94
Prentice v. Decker, 49 Barb. (N. Y.) 21 25S
Prentiss v. City of Boston, 112 Mass. 43 .25, 446, 447
Preston v. Railway Co., 98 Mich. 128, 57 N. W. 31 94
Pretty v. Bickmore, L. R. 8 C. P. 401 313, 314
Prevost v. Refrigerating Co., 185 Pa. St. 617, 40 Atl. 88 140-
Prewitt v. Railway Co., 134 Mo. 615, 36 S. W. 667 328
Price v. Powell, 3 N. Y. 322 285
v. Railroad Co., 77 Mo. 508 152
31 N. J. Law, 229 343
v. Simon (N. J. Sup.) 40 Atl. 689 16O
v. Water Co., 58 Kan. 551, 50 Pac. 450 67, 306
Prickett v. Anchor Line, 13 Mo. App. 436 289-
Priest v. Nichols, 116 Mass. 401 39
Priestley v. Fowler, 3 Mees. & W. 1 . .* 124
Pritchard v. Railroad Co., 7 Wis. 232 343
Prize Cases, The, 2 Black, 635 229, 230
Proctor v. Railroad Co., 72 N. C. 579 344
Proprietors of Locks & Canals on Merrimack River v. City of Lowell, 7
Gray (Mass.) 223 428
Prosser v. Railway Co., 17 Mont. 372, 43 Pac. 81 85
Pruitt v. Railroad Co., 62 Mo. 527 222, 225, 236
Prussak v. Hutton, 30 App. Div. 66, 51 N. Y. Supp. 761 369
Prybilski v. Railway Co., 98 Wis. 413, 74 N. W. 117 : . . 151
Puffer v. Orange, 122 Mass. 389 435
Pullman Car Co. v. Gardner, 3 Penny. (Pa.) 78 217, 278
Pullman Palace-Car Co. v. Adams (Ala.) 24 South. 921 85, 278
v. Freudenstein, 3 Colo. App. 540, 34 Pac. 578 217, 277, 278
v. Gavin, 93 Tenn. 53, 23 S. W. 70 278
v. Hall (Ga.) 32 S. E. 923 278
CASES CITED. 51)7
Page
Pullman Palace-Car Co. v. Laack, 143 111. 242, 32 X. E. 285 151
v. Lowe, 28 Xeb. 239, 44 X. W. 220 217
v. Pollock, G9 Tex. 120, 5 S. W. 814 217, 277, 278
v. Reed, 75 111. 125 186, 201
v. Smith, 73 111. 300 217, 278
79 Tex. 4(58, 14 S. W. 993 ISO
Pumpelly v. Canal Co., 13 Wall. 1GG 428
Purely v. Railroad Co., 87 Hun, 97, 33 X. Y. Supp. 952 333
Purl v. Railway Co., 72 Mo. 1G8 75
Purnell v. Minor, 49 Xeb. 555, 08 X. W. 1)42 31
v. Railroad Co., 122 X. C. 832, 29 S. E. 953 324
Puterbaugh v. Reasor, 9 Ohio St. 484 55
Putnam v. Railroad Co., 55 X. Y. 108 183, 192. 197, 207
Pye v. Faxon, 156 Mass. 471, 31 X. E. 040 164
Pyle v. Clark, 25 C. C. A. 190, 79 Fed. 744 59
Pym v. Railway Co., 2 Best & S. 759, 10 Wkly. Rop. 737, 31 Law. J. Q. B.
24.9; 4 Best & S. 396, 11 Wkly. Rep. 922, 32 Law J. Q. B. 377 408
Pyne v. Railroad Co., 54 Iowa, 223, 6 X. W. 281 147
Q
Quarman v. Burnett, 6 Mees. & W. 499 153, 174
Quill v. Telephone Co., 13 Misc. Rep. 435, 34 X. Y. Supp. 470 25
Quimby v. Railroad Co., 150 Mass. 365, 368, 23 X. E. 205 190
v. Vandt-rbilt, 37 X. Y. 300 182, 197, 210, 291
Quin v. Moore, 15 X. Y. 432 403, 415
Quincy Coal Co. v. Hood, 77 111. 68 403, 415, 416
Quincy Min. Co. v. Kitts, 42 Mich. 34, 3 X. W. 240 137
Quinn v. Construction Co., 46 Fed. 506 156, 157
v. O'Keeffe, 9 App. Div. OS, 41 X. Y. Supp. 116 79
v. Power, 87 X. Y. 535 154, 173
v. Railroad Co., 56 Conn. 44, 12 Atl. 97 394
Quintana v. Refining Co., 14 Tex. Civ. App. 347, 37 S. W. 369 91
Quirk v. Elevator Co., 126 Mo. 279, 28 S. W. 1080 39
R
Raben v. Railway Co., 73 Iowa, 579, 35 X. W. 645, 74 Iowa, 732. 34 X. W.
021 180
Racho v. City of Detroit, 90 Mich. 92, 51 X. W. 360 399
Radeliff's Ex'rs v. Brooklyn, 4 X. Y. 195 301, 438
Radley v. Railroad Co., L. R. 9 Exch. 71 37
Rafferty v. Buckman. 46 Iowa, 195 400
Rahilly v. Railway Co., 66 Minn. 153, 68 X. W. 853 199
Railroad Co. v. Androscoggin Mills, 22 Wall. 594 292, 293
v. Brown, 17 Wall. 445, 450 195. 209
v. Jones, 95 tf. S. 439 39
v. Leech, 41 Ohio St. 388 109
568 CASES CITED.
Page
Railroad Co. v. Marls, 1G Kan. 333 287
v. Pratt, 22 Wall. 123 291
v. Reeves, 10 Wall. 176 221
v. Stout, 17 Wall. 657 69
v. Walker, 11 Heisk. 383 80
Railsback v. Turnpike Co., 10 Ind. App. 622, 38 N. E. 221 105, 112
Rains v. Railway Co., 71 Mo. 164 406, 409
v. Simpson, 50 Tex. 495 380
Rajnowski v. Railroad Co., 74 Mich. 20, 41 N. W. 847 409
Ramsden v. Railroad Co., 104 Mass. 117 183
Rand v. Transportation Co., 59 N. H. 363 239
Randall v. Railroad Co., 106 Mass. 276 435, 450
109 U. S. 478, 3 Sup. Ct. 322 ., 116
v. Telegraph Co., 54 Wis. 140, 11 X. W. 419 40
Randolph v. Feist, 23 Misc. Rep. 650, 52 N. Y. Supp. 109 316
v. O'Riordon, 155 Mass. 331, 29 N. E. 583 59
Rangeley's Adm'r v. Railway Co., 95 Va. 715, 30 S. E. 386 332
Rankin v. Railroad Co., 55 Mo. 167 288
Ranlett v. Blodgett, 17 N. H. 298 381
Ranney v. Railroad Co., 59 111. App. 130 348
Ransom v. Halcott, 18 Barb. (N. Y.) 56 384
Rapho Tp. v. Moore, 68 Pa. St. 404 438, 456
Rapson v. Cubitt, 9 Mees. & W. 710 166
Rathbone v. Xeal, 4 La. Ann. 563 235
Rathbun v. Steamboat Co., 76 N. Y. 376 284
Ratte v. Dawson, 50 Minn. 450, 52 N. W. 965 31, 306
Rauch v. Lloyd, 31 Pa. St. 358 68, 335
Rawitzky v. Railroad Co., 40 La. Ann. 47, 3 South. 387 199
Rawson v. Holland, 59 N. Y. 611 235. 287, 294
v. Railroad Co., 48 X. Y. 212 197, 198, 258
Ray v. City of Poplar Bluff, 70 Mo. App. 252 164, 435
v. Traction Co., 19 App. Div. 530, 46 N. Y. Supp. 521 186
Rayner v. Mitchell, 2 C. P. Div. 357 173
Read v. Fire District (R. I.) 40 Atl. 760 161
v. Morse, 34 Wis. 315 355
v. Xichols, 118 N. Y. 224, 23 N. E. 468 17, 18
v. Railroad Co., 60 Mo. 199 219, 22.",
44 N. J. Law, 280 351
v. Spaulding, 30 N. Y. 630 225
Readhead v. Railroad Co., L. R. 2 Q. B. 412, 4 Q. B. 379 204
Reading Tp. v. Telfer, 57 Kan. 798, 48 Pac. 134 61
Reardon v. Card Co., 51 X. Y. Super. Ct 134 119
v. St. Louis Co., 36 Mo. 555 456
v. Thompson, 149 Mass. 267, 21 X. E. 369 49
Reaves v. Waterman, 2 Speer (S. C.) 197 227
Reber v. Tower, 11 Mo. App. 199 117
Redford v. Coggeshall, 19 R. I. 313. 36 Atl. 89 449
Redigan v. Railroad Co., 155 Mass. 44, 28 X. E. 1133 49
Redington v. Railway Co., 84 Hun, 231, 32 X. Y. Supp. 535 133
CASES CITED. 569
Page
"Redmond v. Steamboat Co., 46 N. Y. 578 285, 286
Red River Line v. Cheatham, 56 Fed. 248; 9 C. C. A. 124, 60 Fed. 517 109
Heed v. City of Belfast, 20 Me. 246 425
v. City of Madison, 83 Wis. 171, 53 N. W. 547 426
v. Darlington, 19 Iowa, 349 387
v. Express Co., 48 N. Y. 462 292, 294
v. Railroad Co., 56 Barb. (N. Y.) 493 206
100 Mich. 507, 59 N. W. 144 180
37 S. C. 42, 16 S. E. 289 397
" v. Steamboat Co., 1 Marv. 193, 40 Atl. 955 219
Heedie v. Railway Co. (1849) 4 Exch. 243 174
Reese v. Mining Co., 15 Utah, 453, 49 Pac. 824 87
v. Railroad Co., 42 W. Va. 333, 26 S. E. 204 108
Beeves v. French (Ky.) 45 S. W. 771 49, 307
v. Railroad Co., 92 Iowa, 32, 60 N. W. 243 337
30 Pa. St. 454 350
Keg. v. Bucknall, 2 Ld. Raym. 804 311
v. Longbottom, 3 Cox, Or. Cas. 439 76
v. Watts, 1 Salk. 357 311
Hegan v. Express Co., 49 La. Ann. 1579, 22 South. 835 266
v. Railway Co., 51 Wis. 599, 8 N. W. 292 415, 416
Hehm v. Railroad Co., 164 Pa. St. 91, 30 Atl. 356 128, 140
Reilly v. City of Philadelphia, 60 Pa. St. 467 441
v. Railroad Co., 94 Mo. 600, 7 S. W. 407 395
Heiner v. Jones (Sup.) 56 X. Y. Supp. 423 317
Tleining v. Railway Co., 128 N. Y. 157, 165, 28 N. E. 642 438
R. E. Lee, The, 2 Abb. (U. S.) 49, Fed. Cas. No. 11,690 277
Relf v. Rapp, 3 Watts & S. (Pa.) 21 230
Helyea v. Railroad Co., 112 Mo. 86. 20 S. W. 480 148
Renwick v. Railroad Co.. 36 N. Y. 133 75
Heock v. Mayor, etc., 33 N. J. Law, 129 449
Republican Val. R. Co. v. Fink, 18 Xeb. 89, 24 X. W. 691 24
Hequa v. City of Rochester, 45 N. Y. 129 426
Hespublica v. Sparhawk, 1 Ball. (Pa.) 357 9, 452
Reumping v. Wharton (Xeb.) 76 X. W. 1076 373
Hex v. Inhabitants, 2 W. Bl. 685 455
v. Long, 4 Car. & P. 398-423 378
v. Walker, 1 Car. & P. 320 76
v. Watts. 2 Esp. 675 320
Rexter v. Starin, 73 X. Y. 601 43
.Reynolds v. Board, 33 App. Div. 88, 53 X. Y. Supp. 75 443
v. Clarke, 2 Ld. Raym. 1399 303
v. Graves, 3 Wis. 416 376
v. Hindman, 32 Iowa, 146 52
V. Railroad Co., 16 C. C. A. 435, 69 Fed. 808 325
43 X. H. 580 297, 298
58 X. Y. 248 88, 340
2 Rose. X. P. Ev. 735 189
64 Vt. 66, 24 Atl. 134 106
570 CASES CITED.
Ehines' Adm'rs v. Evans, G6 Pa. St. 192 373
Rhyner v. City of Menasha, 97 Wis. 523, 73 N. W. 41 77, 85
Rice v. Hart, 118 Mass. 201 2SS
v. Railroad Co. (La.) 24 South. 791 G5
63 Mo. 314 212, 251
Rice & Bullen Malting Co. v. Paulsen, 51 111. App. 123 9O
Rich v. Basterfield, 4 C. B. 783 313, 314
Richards v. Connell, 45 Xeb. 517, 63 N. W. 915 30(5
v. Railroad Co., 20 111. 404 288
v. Westcott, 2 Bosw. (X. Y.) 589 ' 216
v. Willard, 176 Pa. St. 181, 35 Atl. 114 379
Richardson r. The Charles P. Chouteau, 37 Fed. 532. 292
v. Goddard, 23 How. 28, 39 285, 286
v. Railroad Co., 45 N. Y. 846 326
8 Rich. Law (S. C.) 120 79
61 Wis. 596, 21 N. W. 49 266
Richberger v. Express Co., 73 Miss. 161, 18 South. 922 170
Richmond v. Railway Co., 87 Mich. 374, 49 N. W. 621 410, 411
v. Steamboat Co., 87 X. Y. 240 284
Richmond City Ry. Co. v. Scott, 86 Va. 902, 11 S. E. 404 180
Richmond Locomotive Works v. Ford, 94 Va. 627, 27 S. E. 509 105, ISO-
Richmond Railway & Electric Co. v. Bowles, 92 Va. 738, 24 S. E. 388 204
Richmond & D. R. Co. v. Dickey, 90 Ga. 491, 16 S. E. 212 94
v. Finley, 12 C. C. A. 595, 63 Fed. 228 Ill, 123, 145
v. George, 88 Va. 223, 13 S. E. 429 .151
v. Medley, 75 Va. 499 '. 355, 359
v. Xorment, 84 Va. 167, 4 S. E. 211 150
v. Smith, 92 Ala. 237, 9 South. 223 180
v. Vance, 93 Ala. 144, 9 South. 574 6
v. White, 88 Ga. 805, 15 S. E. 802 23, 222
v. Williams, 88 Ga. 16, 14 S. E. 120 102:
86 Va. 165, 9 S. E. 990 150
Richmond & M. R. Co. v. Moore's Adm'r, 94 Va. 493, 27 S. E. 70 5O
Ricker v. Freeman, 50 N. H. 420 25, 26
Rickerson Roller-Mill Co. v. Grand Rapids & I. R. Co., 67 Mich. 110, 34 X.
W. 269 294
Riddle v. Proprietors of Locks, 7 Mass. 169 454-^56
Rider v. White, 65 X. Y. 54 365
Rigony v. Schuylkill Co., 103 Pa. St. 382 456
Riley v. Home, 5 Bing. 217 221
v. Railroad Co., 135 Mass. 292 398
v. Transit Co., 10 Utah. 428, 37 Pac. 681 64
Ritchey v. West, 23 111. 385 377
Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29 173
Ritger v. City of Milwaukee, 99 Wis. 190, 74 X. W. 815 60-
Ritz v. City of Wheeling (W. Va.) 31 S. E. 993, 43 Lawy. Rep. Ann.
148 49, 3CM>
Ritzman v. Railroad Co., 187 Pa. St. 337, 40 Atl. 875 330
Rivers v. Council, 65 Ga. 376 449>
. CASES CITED. 571
Page
River Wear Com'rs v. Adamson, 2 App. Cas. 743 2&
Rixford v. Smith, 52 N. H. 355 231, 262, 266-
Roach v. Mining Co., 7 Sawy. 224, 7 Fed. 698 397
v. Railroad Co., 93 Ga. 785, 21 S. E. 67 57, 60
Robbins v. Atkins, 168 Mass. 45, 46 N. E. 425 316-
v. City of Chicago, 4 Wall. 657 447
v. Jones, 15 C. B. (N. S.) 221, 240 314, 316, 317
Roberts v. City of Chicago, 26 111. 249 439-
.v. City of Detroit, 102 Mich. 64, 60 N. W. 450 426
v. Koehler, 30 Fed. 94 200, 267
v. Riley, 15 La. Ann. 103 238
v. Turner, 12 Johns. (N. Y.) 232 215
Robertson v. Miller, 40 Conn. 40 318
v. Railroad Co., 22 Barb. (N. Y.) 91 196-
Robinson v. Brennan, 90 N. Y. 208 384
v. City of Evansville, 87 Ind. 334 449
v. Cone, 22 Vt. 213, 224 68, 71, 73
v. McXeill, 18 Wash. 163, 51 Pac. 355 158
v. Mfg. Co., 143 Mass. 528, 10 N. E. 314 152-
v. Navigation Co., 20 C. C. A. 86, 73 Fed. 883 60-
v. Pioche, 5 Cal. 460, 461 77
v. Railroad Co., 48 Cal. 409 85, 15*
87 Me. 387, 32 Atl. 994 197
157 Mass. 224, 32 N. E. 1 205
66 N. Y. 11 f 59-
94 Wis. 345, 68 N. W. 961 174
v. Rockland, T. & C. St. Ry. Co., 87 Me. 387, 32 Atl. 994 183:
v. Southern Pac. Co., 105 Cal. 526, 38 Pac. 94, 722 200
v. Transportation Co., 45 Iowa, 470 292, 293-
v. Webb, 11 Bush (Ky.) 464 161
Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463 426, 429-
Rockford, R. I. & St. L. R. Co. v. Delaney, 82 111. 198 409-
Rodgers v. Railroad Co., 67 Cal. 607, 8 Pac. 377 24
150 Ind. 397, 49 N. E. 453 324
Rodney v: Railroad Co., 127 Mo. 676, 28 S. W. 887 148-
Rodrian v. Railroad Co., 125 N. Y. 526, 26 N. E. 741 399-
Roe v. Crimmins, 10 Misc. Rep. 711, 31 N. Y. Supp. 807 43-
Roeder v. Ormsby, 13 Abb. Prac. (N. Y.) 334, 22 How. Prac. (N. Y.) 270. .. 406-
Rogers v. City of Bloomington (Ind. App.) 52 N. E. 242 434
v. Leyden, 127 Ind. 50-53, 26 N. E. 210. . . '. 151
v. McDowell, 134 Pa. St 424, 21 Atl. 166 382
v. Overton, 87 Ind. 411 85
v. Railroad Co., 1 Allen (Mass.) 16 345
v. Steamboat Co., 86 Me. 261, 29 Atl. 1069 177, 178, 191
v. Wheeler, 2 Lans. (N. Y.) 486 216
43 X. Y. 598 216
52 N. Y. 262 279"
Rogers Locomotive & Machine Works v. Hand, 50 X. J. Law, 464, 14 Atl.
766 . . 148-
572 CASES CITED. .
Page
Rogers Locomotive & Machine Works v. Railroad Co., 20 N. J. Eq. 379 216
Rogstad v. Railway Co., 31 Minn. 208, 17 N. W. 287 211
Roll v. Railway Co., 15 Hun, 496 41
Rollings v. Levering, 18 App. Div. 223, 45 N. Y. Supp. 942 90
Rome R. Co. v. Sullivan, 14 Ga. 277, 282 288
25 Ga. 228 295
v. Wimberly, 75 Ga, 316 289
Romick v. Railway Co., 62 Iowa, 167, 17 N. W. 458 324
Rommel v. Schambacher, 120 Pa. St. 579, 11 Atl. 779 78, 171
Rood v. Railroad Co., 18 Barb. (N. Y.) 80 354
Rooney v. Carson, 161 Pa. St. 26, 28 Atl. 996 122
v. Cordage Co., 161 Mass. 153, 36 N. E. 789 92
Roose v. Perkins, 9 Neb. 304, 2 N. W. 715 400
Root v. Railroad Co., 83 Hun, 111, 31 N. Y. Supp. 357 223
45 N. Y. 524, 532 216, 291-293
v. Wagner, 30 N. Y. 9 381
Rose v. Railroad Co., 39 Iowa, 246 212, 414
58 N. Y. 217 103
106 N. C. 168, 11 S. E. 526 198
Rosenbaum v. Railroad Co., 38 Minn. 173, 36 N. W. 447 171
v. Shoffner, 98 Tenn. 624, 40 S. W. 1086 14, 309
Hosenfeld v. Railway Co., 103 Ind. 121, 2 N. E. 344 238, 247, 248, 253
Rosenfleld v. Express Co., 1 Woods, 131, Fed. Gas. No. 12,060 297
Uosenthal v. Davenport, 38 Minn. 543, 38 N. W. 618 388
Ross v. Railroad Co., 44 Fed. 44 410
5 Hun (N. Y.) 488 190
4 Mo. App. 583 289
49 Vt. 364 231, 232
Ross Case, 112 U. S. 377, 5 Sup. Ct. 184 148
Rossell v. Cottom, 31 Pa. St. 525 362
Rossire v. City of Boston, 4 Allen (Mass.) 57 444
Roswell v. Prior, 12 Mod. 635 161, 314
Roth v. Depot Co., 13 Wash. 525, 43 Pac. 641 71, 328
v. Railroad Co., 34 N. Y. 548 283, 287, 289
Rothe v. Railroad Co., 21 Wis. 256 82, 330
Rothenberger v. Milling Co., 57 Minn. 461, 59 N. W. 531 121
Rothschild v. Railroad Co., 69 111. 164 288
Roulston v. Clark, 3 E. D. Smith (N. Y.) 366 310
Rounds v. City of Bangor, 46 Me. 541 443
v. Railroad Co., 64 N. Y. 129 169
Houser v. Railway Co., 97 Mich. 565, 56 N. W. 937 199
Roux v. Lumber Co., 94 Mich. 607, 54 N. W. 492 '. 137
Rowe v. City of Portsmouth, 56 N. H. 291 425
Rowell v. Railroad Co., 64 Conn. 376, 30 Atl. 131 42
57 N. H. 132 353
Rowen v. Railroad Co., 59 Conn. 364, 21 Atl. 1073 36
Rowland v. Cannon, 35 Ga. 105 394
Rowley v. Bigelow, 12 Pick. (Mass.) 307, 313 298
v. Home, 3 Bing. 2 256
CASES CITED. 57 &
Page
Royce v. City of Salt Lake City, 15 Utah, 401, 49 Pac. 290 444
v. Guggenheim, 106 Mass. 201 315-
Rozell v. City of Anderson, 91 Ind. 591 429-
Rudder v. Koopman, 116 Ala. 332, 22 South. 601 369
Ruddock y. Lowe, 4 Fost. & F. 519, 521 378-
Rudgeair v. Traction Co., ISO Pa. St. 333, 36 Atl. 859 158.
Ruffner v. Cincinnati, H. & D. R. Co., 34 Ohio St. 96 358
Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct 832 201
v. Inhabitants, 11 Cush. (Mass.) 433 452
Rummell v. Dilworth, 111 Pa. St. 343, 2 Atl. 355 106, 123-
Runyan v. Railroad Co., 61 X. J. Law, 537, 41 Atl. 367 277
Ruppel v. Railroad Co., 167 Pa. St. 166, 31 Atl. 478 234, 235, 249-
Russell v. Mayor, etc., 2 Denio (X. Y.) 461 452
v. Men of Devon, 2 Term R. 667 454, 455-
v. Railroad Co., 32 Minn. 230, 20 X. W. 147 Ill
17 x. r. 134 i9a
v. Shenton, 3 Q. B. 449 311, 3ia
v. Sunbury, 37 Ohio St. 372 402
v. Tillotson, 140 Mass. 201, 4 X. E. 281. . .'. 121
Russell Mfg. Co. v. New Haven Steamboat Co., 50 N. Y. 121 285, 286-
Ruter v. Foy, 46 Iowa, 132 36
Rutledge v. Railway Co., 123 Mo. 121, 24 S. W. 1053; 27 S. W. 327 103
Ryan v. Ardis, 190 Pa. St. 66, 42 Atl. 372 87
v. Armour, 166 111. 568, 47 X. E. 60 .93, 105, 10T
v. Bagley, 50 Mich. 179, 180, 15 X. W. 72 137
v. Boiler Works, 68 Mo. App. 148 156:
v. Fowler, 24 N. Y. 410 89, 117
v. Railroad Co., 37 Hun (X. Y.) 186 6&
35 X. Y. 210 14, 16, 352
23 Pa. St. 384 19tt
65 Tex. 13 220
v. Tarbox, 135 Mass. 207 106-
Ryder v. Kinsey, 62 Minn. 85, 64 N. W. 94 303
Rylands v. Fletcher, L. R. 3 H. L. 330 2T
S
Sadowski v. Car Co., 84 Mich. 100, 47 X. W. 598 1ST
Sager v. Railroad Co., 31 Me. 228 212, 222
St. Anthony Falls Water-Power Co. v. Eastman, 20 Minn. 277 (Gil. 249). .82, 86-
St. Clair v. Railroad Co., 80 Iowa, 3O4, 45 X. W. 570 235
St. John v. Express Co., 1 Woods, 612, Fed. Cas. No. 12,228 231, 293
St. Joseph & G. I. R. Co. v. Hedge, 44 Xeb. 448, 62 X. W. 891 18
St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461 176, 187, 188-
St. Louis, A. & T. H. R. Co. v. Biggs, 53 111. App. 550 135
y. Manly, 58 111. 300 340
v. Montgomery, 39 111. 335 279
T. Stapp, 53 111. App. 600 34a
574 CASES CITED.
Page
St Louis, A. & T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711 191
v. Johnston, 78 Tex. 536, 15 S. W. 104 407
v. Mackie, 71 Tex. 491, 9 S. W. 451 198
v. Torrey, 58 Ark. 217, 24 S. W. 244 105
St. Louis Bridge Co. v. Miller, 138 111. 465, 28 X. E. 1091 27
St. Louis, I. M. & S. Ry. Co. v. Bland (Tex. Civ. App.) 34 S. W. 675 225
v. Freeman, 36 Ark. 41 395, 410
v. Gaines, 46 Ark. 555 146
v. Heath, 41 Ark. 476 235
v. Hopkins, 54 Ark. 209, 15 S. W. 610 23
v. Jones (Tex. Civ. App.) 29 S. W. 695 236
v. Knight, 122 U. S. 79, 7 Sup. Ct. 1132 279
v. Leigh, 45 Ark. 368 193
v. Maddry, 57 Ark. 306, 21 S. W. 472 18, 408
V. Murphy, 60 Ark. 333, 30 S. W. 419 279
v. Needham, 3 C. C. A. 129, 52 Fed. 371 402
11 C. C. A. 56, 63 Fed. 107 145
v. Rexroad (Ark.) 26 S. W % 1037 70
v. Rice, 51 Ark. 467, 11 S. W. 699 145
v. Rickman (Ark.) 45 S. W. 56 146
St. Louis Ins. Co. v. Railroad Co., 104 U. S. 146 294
St. Louis, K. C. & N. Ry. Co. v. Piper, 13 Kan. 376, 505 238, 292
St. Louis S. W. Ry. Co. v. Bishop, 14 Tex. Civ. App. 504, 37 S. W. 764 51
v. Franklin (Tex. Civ. App.) 44 S. W. 701 177
v. Griffith, 12 Tex. Civ. App. 631, 35 S. W. 741 177, 178
v. Henson, 61 Ark. 302, 32 S. W. 1079 146
v. Jagernian, 59 Ark. 98, 26 S. W. 591 91
v. Knight (Tex. Civ. App.) 49 S. W. 250 354
v. McCullough (Tex. Civ. App.) 45 S. W. 324 202
v. Milk Co., 74 111. App. 619 290
v. Nelson (Tex. Civ. App.) 44 S. W. 179 191
v. Rice, 9 Tex. Civ. App. 509, 29 S. W. 525 39
v. Russell, 64 Ark. 236, 41 S. W. 807 344
v. White (Tex. Civ. App.) 34 S. W. 1042 187
St. Louis, V. & T. R. Co. v. Bell, 81 111. 76 69
St. Louis & C. R. Co. v. Hardway, 17 111. App. 321 289
St. Louis & S. P:. R. Co. v. Dorman, 72 111. 504 262
v. Smuck, 49 Ind. 302 253
St. Louis & S. F. Ry. Co. v. Christian, 8 Tex. Civ. App. 246, 27 S. W. 932 ... 63
v. Gill, 54 Ark. 101, 15 S. W. 18 201
v. Hoover, 3 Kan. App. 577, 43 Pac. 854 354
v. Sherlock, 59 Kan. 23, 51 Pac. 899 249
v. Stevens, 3 Kan. App. 176, 43 Pac. 434 80, 359
v. Traweok, 84 Tex. 65, 19 S. W. 370 42
v. Tribbey, 6 Kan. App. 467, 50 Pac. 458 239, 266
v. Weaver, 35 Kan. 412. 11 Pac. 408 147
St Mary's Woolen Mfg. Co. v. Glycerine Co., 14 Ohio Cir. Ct. 522, 7 Ohio
Dec. 582 369
St Peter v. Denison, 58 N. Y. 416. . . 438
CASES CITED. 575
Page
Salem-Bedford Stone Co. v. O'Brien, 12 Ind. App. 217, 40 N. E. 430 39, 44
Sales v. Stage Co., 4 Iowa, 547 216
Salisbury v. Hercheuroder, 10G Mass. 458 21, 23, 303
v. Washington Co., 22 Misc. Key. 41, 48 N. Y. Supp. 122 453
Salmon Falls Mfg. Co. v. The Tangier, 1 Cliff. 396, Fed. Cas. No. 12,266. .. 284^
Salter v. Railroad Co., 88 N. Y. 42 86
Salters v. Canal Co., 3 Hun (N. Y.) 338 92
Saltonstall v. Stockton, Taney, 11, Fed. Cas. No. 12,271 191
Salzer v. City of Milwaukee, 97 Wis. 471, 73 N. W. 20 434.
Samullian v. Machine Co., 168 Mass. 12, 46 N. E. 98 157
Sau Antonio & A. P. Ry. Co. v. Adams, 6 Tex. Civ. App. 102, 24 S. W. 839.. 188
v. Baruett, 12 Tex. Civ. App. 321, 34 S. W. 139 252
v. Bennett, 76 Tex. 151, 13 S. W. 319 413
v. Bergsland, 12 Tex. Civ. App. 97, 34 S. W. 155 335
v. Bowles (Tex. Civ. App.) 30 S. W. 89 150
v. Brooking (Tex. Civ. App.) 51 S. W. 537 93
v. Harding, 11 Tex. Civ. App. 497, 33 S. W. 373 150
v. Jazo (Tex. Civ. App.) 25 S. W. 712 67
v. Keller, 11 Tex. Civ. App. 569, 32 S. W. 847 149
v. Lynch, 8 Tex. Civ. App. 513, 28 S. W. 252 187
v. McDonald (Tex. Civ. App.) 31 S. W. 72 149
v. Newman (Tex. Civ. App.) 43 S. W. 915 258
v. Peterson (Tex. Civ. App.) 49 S. W. 924 31
v. Reynolds (Tex. Civ. App.) 30 S. W. 846 150
v. Robinson, 79 Tex. 608, 15 S. W. 584 '.205
v. Taylor (Tex. Civ. App.) 35 S. W. 855 150
Sanders v. Young, 1 Head (Tenn.) 219 216
{Sanderson v. Frazier, 8 Colo. 79, 5 Pac. 632 84
Sandham v. Railroad Co.. 38 Iowa, 90 30
Sanford v. Oil Co., 118 N. Y. 571, 24. N. E. 313 128
v. Railroad Co., 23 N. Y. 343 35, 169, 185, 186
2 Phila. (Pa.) 107 191
Sanner v. Railway Co. (Tex. Civ. App.) 43 S. W. 533 150
Santee, The, 2 Ben. 519, Fed. Cas. No. 12,328 251
Sarch v. Blackburn, 4 Car. & P. 297 362, 365
Sauerborn v. Railroad Co., 69 Hun, 429, 23 N. Y. Supp. 478 329
Saulsbury v. Village of Ithaca, 94 N. Y. 27 432
Saunders v. City of Boston, 167 Mass. 595, 46 N. E. 98 437
v. Perkins, 140 Pa. St. 102, 21 Ati. 257 385
v. Southern Pac. Co., 13 Utah, 275, 44 Pac. 932 191
Sauter v. Railroad Co., 66 N. Y. 50 54, 413
Savacool v. Boughton, 5 Wend. (N. Y.) 170 382
Savage v. City of Bangor, 40 Me. 176 434
Savannah, F. & W. Ry. Co. v. Guano Co., 103 Ga. 590, 30 S. W. 555
23, 222, 228
v. Harris, 26 Fla. 14.8, 7 South. 544 294
v. Pritchard, 77 Ga, 412, 1 S. E. 261 23i
v. Quo, 103 Ga. 125, 29 S. E. 607 172
Savannah, G. & N. A. R. Co. v. Wilcox, 48 Ga. 432 233
576 CASES CITED.
Page
Savannah, S. & S. R. Co. v. Bonaud, 58 Ga. 180. . 21O
Savannah & W. R. Co. v. Phillips, 90 Ga. 829, 17 S. E. 82 161, 165
Sawyer v. Corse, 17 Grat. (Va.) 230 433-
v. Dulany, 30 Tex. 479 205
v. Railroad Co., 37 Mo. 24 203-
27 Vt. 370 129-
v. Sauer, 10 Kan. 466 SO
Sayward v. Carlson, 1 Wash. St. 29, 23 Pac. 830 150-
Scales v. Chattahoochee Co., 41 Ga. 225 456-
Scanlan v. City of Watertown, 14 App. Div. 1, 43 X. Y. Supp. 618 432.
Scanlon v. Railroad Co., 147 Mass. 484, 18 N. E. 209 117
Scarborough v. Railway Co., 94 Ala. 497, 10 South. 316 161
Schacherl v. Railway Co., 42 Minn. 42, 43 N. W. 837 74
Schanda v. Sulzberger, 7 App. Div. 221, 40 N. Y. Supp. 116 315
Schattner v. City of Kansas, 53 Mo. 162 449-
Schaub v. Railroad Co., 106 Mo. 74, 16 S. W. 924 405, 407
Schauf's Adm'r v. City of Paducah (Ky.) 50 S. W. 42 440-
Scheffer v. Railroad Co., 105 U. S. 249 11, 16, 18, 19, 399
Schemer v. Railway Co., 32 Minn. 125, 19 N. W. 656 400*
32 Minn. 518, 21 N. W. 711 410, 413-
Schell v. Bank, 14 Minn. 43 (Gil. 34) 302
Schepers v. Railroad Co., 126 Mo. 665, 29 S. W. 712 177
Scherer v. Mfg. Co., 86 Hun, 37, 33 N. Y. Supp. 205 135
Scheu v. Benedict, 116 N. Y. 510, 22 N. E. 1073 285
Schieffelin v. Harvey, 6 Johns. (N. Y.) 170 229-
Schierhold v. Railroad Co., 40 Cal. 447 76
Schlereth v. Railway Co., 115 Mo. 87, 21 S. W. 1110 148
Schliermann v. Typewriter Co., 11 Misc. Rep. 546, 32 N. Y. Supp. 748 119-
Schmidt v. Railroad Co., 26 App. Div. 391, 49 X. Y. Supp. 777 205
23 Wis. 186 67
90 Wis. 504, 63 N. W. 1057 280
v. Woodenware Co., 99 Wis. 300, 74 X. W. 797 404
Schmitt v. Drouet, 42 La. Ann. 1064, 8 South. 396 386
Schneekloth v. Railway Co., 108 Mich. 1, 65 X. W. 663 347
Schneider v. Railway Co., 99 Wis. 378, 75 N. W. 169 10, 332
Schoen v. Railroad Co. (Super. N. Y.) 9 N. Y. Supp. 709 399
Schofield v. Railway Co., 8 Fed. 488 42
114 U. S. 615, 5 Sup. Ct 1125 340-
School Dist. in Medfield v. Railroad Co., 102 Mass. 552 212, 239
Schopman v. Railroad Corp., 9 Gush. (Mass.) 24 182, 189, 206
Schotsmans v. Railroad Co., 2 Ch. App. 332 29S
Schrier v. Railway Co., 65 Wis. 457, 27 X. W. 167 410
Schroeder v. Railroad Co., 5 Duer (X. Y.) 55 292
47 Iowa, 375 147
103 Mich. 213, 61 X. W. 663 137, 140
Schulz v. Railway Co., 57 Minn. 271, 59 X. W. 192 103-
Schulze-Berge v. The Guildhall, 58 Fed. 796 255, 256
Schumacher v. City of Xew York (Sup.) 57 X. Y. Supp. 968 448
v. City of St. Louis, 3 Mo. App. 297 441, 445
CASES CITED. I I
Page-
Schwartz v. Gilmore, 45 111. 455 302
v. Shull (W. Va.) 31 S. E. 914 18, 87, 91
Schwarz v. Judd, 28 Minn. 371, 10 N. W. 208 403, 416
Schwingschlegl v. City of Monroe, 113 Mich. 683, 72 N. W. 7 434
Scott v. Hunter, 46 Pa. St. 192 21, 24
v. Manchester, 37 Eng. Law & Eq. 495 420
v. Mayor, etc., 37 Eng. Law & Eq. 495 431
Y. Province, 1 Pittsb. R. (Pa.) 189 284
v. Railway Co., 144 Ind. 125, 43 X. E. 133 198
72 Miss. 37, 16 South. 205 342
v. Shepherd, 2 W. Bl. 892, 3 Wils. 403 18
Y. Simons, 54 N. H. 426 315
Scotten v. Fegan, 62 Iowa, 236, 17 N. W. 491 386
Scovill v. Griffith, 12 N. Y. 509 234
Scribner v. Kelley, 38 Barb. (N. Y.) 14 361
Scudder v. Crossan, 43 Ind. 343 378, 379
Seabrook v. Hecker, 2 Rob. (X. Y.) 291 302
Seaman v. City of Marshall (Mich.) 74 N. W. 484 430
v. Koehler, 122 N. Y. 646, 25 N. E. 353 56
v. Mayor, etc., 80 N. Y. 239 449
Seamans v. Railroad Co., 174 Pa. St 421, 34 Atl. 568 34.0
Searle v. Parke (N. H.) 34 Atl. 744 167
Searles v. Railroad Co., 101 N. Y. 661, 5 N. E. 66 358
Searle's Adm'r v. Railway Co., 32 W. Va. 370, 9 S. E. 248 40S
Sears v. Lydon (Idaho) 49 Pac. 122 382
v. Railroad Co., 14 Allen (Mass.) 433 210-
Seaver v. Railroad Co., 14 Gray (Mass.) 466 93, 190<
St<comb v. Nutt, 14 B. Mon. (Ky.) 324 29S
Second Nat. Bank of Momnouth v. Gilbert, 174 111. 485, 51 X. E. 584 383
Secord v. Railway Co., 5 McCrary, 515, 18 Fed. 221 53
15 U. C. Q. B. 631 407
Seeley v. Town of Litchfield. 49 Conn. 134 434
Segura v. Reed, 3 La. Ann. 695 284, 28G
Selden v. Canal Co., 24 Barb. (X. Y.) 362 317
Selfridge v. Lithgow, 2 Mass. 374 381
Seligman v. Armijo, 1 X. M. 459 229
Sellars v. Foster, 27 Xeb. 118, 42 X. W. 907 413
Seltzer v. Saxton, 71 111. App. 229 367
Selvege v. Railway Co., 135 Mo. 163, 36 S. W. 652 366
Serensen v. Railroad Co., 45 Fed. 407 403, 412, 416
Sessengut v. Posey, 67 Ind. 408 303
Severy v. Railway Co., 6 Okl. 153, 50 Pac. 162 332
Sevier v. Railroad Co., 61 Miss. 8 180-
Sewell v. City of Cohoes, 75 X. Y. 45 445
v. City .of St. Paul, 20 Minn. 511 (Gil. 459) 441
Sexton v. Xevers, 20 Pick. (Mass.) 451 384
Seybolt v. Railroad Co., 95 N. Y. 562 188, 189-
Seymer Y. Town of Lake, 66 Wis. U51, 29 N. W. 554 76, 77
BAR.XEG.-37
578 CASES CITED.
Page
Seymour v. Greenwood, 7 Hurl. & N. 355, 6 Hurl. & N. 359 168
v. Newton, 105 Mass. 272 298
v. Railway Co., 3 Biss. 43, Fed. Cas. No. 12,685 208
69 Vt. 555, 38 Atl. 236 327
Shaber v. Railway Co., 28 Minn. 103, 9 N. W. 575 407
Shackt v. Railroad Co., 94 Tenn. 658, 30 S. W. 742 230, 231
Shadd v. Railroad Co., 96 N. C. 968, 21 S. E. 554 149
Shadford v. Railway Co., Ill Mich. 390, 69 N. W. 661 91
Shanny v. Androscoggin Mills, 66 Me. 420, 426. 91, 148
Sharp v. Lamy (Sup.) 55 N. Y. Supp. 784 383
Sharrer v. Paxson, 171 Pa. St. 26, 33 Atl. 120 177
Shartle v. City of Minneapolis, 17 Minn. 308 (Gil. 284) 432
Shaw v. Craft, 37 Fed. 317 61
v. Railway Co., 18 Law J. Q. B. 181, 13 Q. B. 347 223
40 Minn. 144, 41 N. W. 548 274
v. Sheldon, 103 N. Y. 667, 9 N. B. 183 109
Sheehan v. City of Boston, 171 Mass. 296, 50 N. E. 543 440
v. Prosser, 55 Mo. App. 569 148
v. Railroad Co., 91 N. Y. 232 102
166 Pa. St. 354, 31 Atl. 120 332, 337
Sheff v. City of Huntington, 16 W. Va. 307 86
Sheffield v. Telephone Co., 36 Fed. 164 61
Shehan v. Cornwall, 29 Iowa, 99 365
Shelbyville L. B. R. Co. v. Lewark, 4 Ind. 471 211
Shelbyville R. Co. v. Railroad Co., 82 Ky. 541 290
Sheldon v. Railroad Co., 29 Barb. (N. Y.) 226; 14 N. Y. 218 356
v. Sherman, 42 N. Y. 484 319
Shelton v. Railroad Co., 29 Ohio St. 214 198
v. Transportation Co., 59 N. Y. 258 257
Shenk v. Propeller Co., 60 Pa. St. 109 286, 288
Shepard v. Railroad Co., 35 N. Y. 641 347
Sheridan v. New Quay Co., 4 C. B. (N. S.) 618 297
v. Railroad Co., 36 N. Y. 39 205
v. Salem, 14 Or. 328, 12 Pac. 925 456
Sherley v. Billings, 8 Bush (Ky.) 147 170
Sherlock v. Ailing, 44 Ind. 184 414, 419
Sherman v. City of Grenada, 51 Miss. 186 448
v. Iron- Works Co., 2 Allen (Mass.) 524 53
v. Railway Co., 34 Minn. 259, 25 N. W. 593 117
64 N. Y. 254 285
y. Stage Co., 22 Iowa, 556 421
24 Iowa, 515 421
v. Steamship Co., 26 Hun, 107 223
v. Wells, 28 Barb. (N. Y.) 403 215
Sherrill v. Shuford, 32 N. C. 200 381
Sherwood v. Fischer, 3 Hun (N. Y.) 606 154
Shields v. Yonge, 15 Ga. 349 391
Shindelbeck v. Moon (Ohio Sup.) 17 Am. Law Reg. 450 311
32 Ohio St. 264.. . 317
CASES CITED. 579
Page
Shipley v. Fifty Associates, 101 Mass. 251 303
Shippy v. Village of Au Sable, 85 Mich. 280, 48 N. W. 584 71
Shirk v. Railroad Co., 14 Ind. App. 126. 42 N. E. 656 338
Shoemaker v. Kingsbury, 12 Wall. 369 176
Short v. Bohle, 64 Mo. App. 242, 2 Mo. App. Rep'r, 1103 363
Showalter v. Fairbanks, Morse & Co., 88 Wis. 376, 60 N. W. 257 121
Shriver v. Railroad Co., 24 Minn. 506 -. 220, 231
Shulz v. Griffith, 103 Iowa, 150, 72 N. W. 445, 40 Lawy. Rep. Ann. 117. .363, 365
Shute v. Princeton Tp., 58 Minn. 337, 59 X. W. 1050 166, 447
Sibilrud v. Railroad Co., 29 Minn. 58, 11 N. W. 146 357
Sibley v. Railroad Co., 32 Minn. 526, 21 N. W. 732 352
Sickles v. Ice Co., 80 Hun, 213, 30 N. Y. Supp. 100 44
Siddall v. Jansen, 168 111. 43, 48 N. E. 191, 39 Lawy. Rep. Ann. 112 306
Sieber v. Railway Co. (Minn.) 79 N. W. 95 406
Sievers v. City and County of San Francisco, 115 Cal. 648, 47 Pac. 687 443
v. Lumber Co., 151 Ind. 642, 50 N. E. 877 89
Silberstein v. Railroad Co., 52 Hun, 611, 4 N. Y. Supp. 843 66
Sills Y. Brown, 9 Car. & P. 601, 606 36
Silver v. Hale, 2 Mo. App. 557 236
Simmer v. City of St. Paul, 23 Minn. 408 425
Simmonds v. Railroad Co., 52 Conn. 264 353
Simmons v. Railway Co., 2 App. Div. 117, 37 N. Y. 532 343
Simon v. Henry (N. J. Sup.) 41 Atl. 692 369
Simon-Reigel Cigar Co. v. Battery Co., 20 Misc. Rep. 598, 46 N. Y. Supp. 416 311
Simons Y. Monier, 29 Barb. (X. Y.) 419 156
Simons' Adm'r v. Railway Co., 96 Va. 152, 31 S. E. 7 328
Simpson v. City of Keokuk, 34 Iowa, 568 54
v. Hand, 6 Whart. (Pa.) 311 58
v. Railroad Co., 5 Lea (Tenn.) 456 357
Sindlinger v. City of Kansas City, 126 Mo. 315, 28 S. W. 857 436
Singer Mfg. Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct 175 158, 161
Sioux City & P. R. Co. v. Smith, 22 Neb. 775, 36 N. W. 285 148
v. Stout, 17 Wall. 657 67
Skinner v. Bridge Co., 29 Conn. 523 438
v. Hall, 60 Me. 477 294
v. Railroad Corp., 1 Cush. (Mass.) 475 N 391
y. Railway Co., 5 Exch. 787 189
Slater v. Chapman, 67 Mich. 523, 35 N. W. 106 137
v. Jewett, 85 X. Y. 61 102, 127, 132
v. Railway Co., 71 Iowa, 209, 32 N. W. 264 60
29 S. C. 96, 6 S. E. 936 219, 220, 226
Slattery v. O'Connell, 153 Mass. 94, 26 N. E. 430 71
Sleade v. Payne, 14 La. Ann. 453 286
Sleeper v. Railroad Co., 58 N. H. 520 86
v. Sandown, 52 X. H. 244 75, 336
Slight v. Gutzlaff, 35 Wis. 675 314
Sloan v. State, 8 Blackf. (Ind.) 361 424
Slocum v. Fairchild, 7 Hill (X. Y.) 292 254
Slomau v. Railroad Co., 6 Hun, 546; 67 X. Y. 208 270, 273
580 CASES CITED.
Page
rflossen v. Railroad Co., 60 Iowa, 215, 14 X. W. 244 357
Sly v. Finch, Cro. Jac. 514 385
Small r. Railroad Co., 55 Iowa, 582, 18 N. W. 437 26, 352
Sumllman v. Whilter, 87 111. 545 192
Smaltz v. Boyce, 109 Mich. 382, 69 N. W. 21 15t>
Smedis v. Railroad Co., 88 N. Y. 13 337, 338
Sniedley v. Railway Co., 184 Pa. St. 620, 39 Atl. 544 202
Smeltz v. Railroad Co., 186 Pa. St. 364, 40 Atl. 479 336-
Smith v. Board, 3 C. P. Div. 423 455
v. Car Works, 60 Mich. 501, 27 X. W. 662 113, US
v. City of Philadelphia, 81 Pa. St. 38 431
v. City of Rochester, 76 N. Y. 506 9, 441, 444, 445, 452, 45
y. Day, 86 Fed. 62 50, 306
V. Express Co., 108 Mich. 572, 66 N. W. 479 248-
v. Fletcher, L. R. 7 Exch. 305 319
v. Heineman (Ala.) 24 South. 364 384
v. Inhabitants, 7 Cush. (Mass.) 498 436-
v. Iron Co., 42 N. J. Law, 467 106-
v. Judkins, 60 N. H. 127 381
v. Major, 16 Ohio Cir. Ct R. 362, 8 Ohio Dec. 649 441
v. Munch, 65 Minn. 256, 68 N. W. 19 175
y. New York, 66 N. Y. 295 429-
v. Pelah, 2 Strange, 1264 365-
v. Potter, 46 Mich. 263, 9 N. W. 273 136
v. Railroad Co., 88 Ala. 538, 7 South. 119 ISO-
91 Ala. 455, 8 South. 754 23, 221, 224, 226
12 Allen (Mass.) 531 233, 266
43 Barb. (X. Y.) 225 296
90 Fed. 783 68, 327
84 Ga. 183, 10 S. E. 602 418
88 Hun (X. Y.) 33 59
. 141 Ind. 92, 40 N. E. 270 332, 337
25 Kan. 738 70
L. R. 6 C. P. 21 10, 12
87 Me. 339, 32 Atl. 967 330
92 Mo. 359, 360, 4 S. W. 129 148, 407, 414
82 Minn. 1, 18 N. W. 827 177
35 N. H. 356 84, 85, 345
44 N. H. 325 273
19 N. Y. 127 129
24 X. Y. 222 245
64 N. 0. 235 219, 239
29 Or. 539, 46 Pac. 136, 780 178
30 S. W. (Ky.) 209 337
91 Wis. 503, 65 X. W. 183 151
L. R. 6 C. P. 14 1
v. Shepherd, Abb. Shipp. (13th Ed.) p. 459 228
v. Sherwood Tp., 62 Mich. 159, 28 N. W. 806 18-
v. Spitz, 156 Mass. 319, 31 X. E. 5 174
CASES CITED. 581
Page
Smith v. Traders' Exchange, 91 Wis. 360, 64 N. W. 1041 165
v. Transportation Co., 89 Hun, 588, 35 N. Y. Supp. 534 93
v. Webster, 23 Mich. 298 174
v. Wildes, 143 Mass. 556, 10 N. E. 446 75
Smitha v. Railroad Co., 86 Tenn. 198, 6 S. W. 209 251, 252
Snioot v. Mayor, etc., 24 Ala. 112 425, 450
v. Railroad Co., 67 Ala. 13 133, 145
Smothers v. Hanks, 34 Iowa, 286 376, 377
Srnyrl v. Niolon, 2 Bailey (S. C.) 421 227
Smyth v. City of Bangor, 72 Me. 249 433
Snider v. City of St. Paul, 51 Minn. 466, 53 N. W. 763 426, 440
v. Express Co., 60 Mo. 376 257
Snow v. Provincetown, 120 Mass. 580 76
Suyder v. Railway Co., 11 W. Va, 14 359
v. Town of Rockport, 6 Ind. 237 439, 442
Soeder v. Railway Co., 100 Mo. 673, 13 S. W. 714 408
Sopherstein v. Bertels, 178 Pa. St. 401, 35 Atl. 1000 84
Soumet v. Express Co., 66 Barb. (N. Y.) 284 257
South Bend Iron Works v. Larger, 11 Ind. App. 367, 39 N. E. 209 48
South Bend Mfg. Co. v. Liphart, 12 Ind. App. 185, 39 N. E. 908 .'.20, 25
South Carolina R. Co. v. Nix, 68 Ga. 572 184, 417
South Chicago City Ry. Co. v. Adamson, 69 111. App. 110 37
Southcote v. Stanley, 1 Hurl. & N. 247 50, 51, 314
South Covington & C. St. Ry. Co. v. Herrklotz (Ky.) 47 S. W. 265 65, 71
v. Ware, 84 Ky. 267, 1 S. W. 493 40
Southern Cotton Press & Mfg. Co. v. Bradley, 52 Tex. 587 405
Southerns v. Howe, 2 Rolle, 5-26 157, 167
Southern Exp. Co. v. Armstead, 50 Ala. 350 283
v. Bank, 108 Ala. 517, IS South. 664 251
v. Caldwell, 21 Wall. 264 250, 251
v. Caperton, 44 Ala. 101 251
v. Crook, 44 Ala. 468, 469 212, 230
v. Everett, 37 Ga. 688 231, 283
v. Glenn, 16 Lea (Tenn.) 472, 1 S. W. 102 229, 250
v. Hess, 53 Ala. 19 295
v. Hunnicutt, 54 Miss. 566 250, 251
v. Kaufman, 12 Heisk. (Tenn.) 161 232
v. Moon, 39 Miss. 822 249
v. Newby, 36 Ga. 635 215, 259, 280
v. Shea, 38 Ga. 519 295
v. Womack, 1 Heisk. (Tenn.) 256 225, 230
Southern Kan. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817 186
Southern Pac. Co. v. McGill (Ariz.) 44 Pac. 302 145
v. Ryan (Tex. Civ. App.) 29 S. W. 527 150
Southern Pac. Ry. Co. v. Johnson (Tex. App.) 15 S. W. 121 236
v. Maddox, 75 Tex. 300, 12 S. W. 815 249
Southern Ry. Co. v. Barlow, 104 Ga. 213, 30 S. E. 732 199
v. Covenia, 100 Ga. 46, 29 S. E. 219, 40 Lawy. Rep. Ann. 253 406
v. Kendrick, 40 Miss. 374 180
582 CASES CITED.
Page
Southern Ry. Co. v. Kinchen, 103 Ga. 186, 29 S. B. 816 284
v. Mitchell, 98 Tenn. 27, 40 S. W. 72 181
v. Prather (Ala,) 24 South. 836 334
v. Pugh, 97 Tenn. 624, 37 S. W. 555 80
v. Watson, 104 Ga. 243, 30 S. E. 818 80
v. Wideman (Ala.) 24 South. 764 168, 170
South Florida R. Co. v. Rhodes, 25 Fla. 40, 5 South. 633 197
Southwell v. City of Detroit, 74 Mich. 438, 42 N. W. 118 447
Southwestern R. Co. v. Felder, 46 Ga. 433 28S
v. Hankerson, 61 Ga. 114 79
v. Johnson, 60 Ga. 667 394
v. Paulk, 24 Ga. 356 392
v. Singleton, 66 Ga. 252 187
South & X. A. R. Co. v. Henlein, 52 Ala. 606 220, 232, 249, 262
56 Ala. 368 238
v. Sullivan, 59 Ala. 272 401
Sowden v. Mining Co., 55 Cal. 443 110
Spade v. Railroad Co., 172 Mass. 488, 52 N. E. 747 170, 206
Spann v. Transportation Co., 11 Misc. Rep. 680, 33 N. Y. Supp. 566 236
Sparr v. City of St. Louis, 4 Mo. App. 573 436
Spartan, The, 25 Fed. 44, 56 286
Spaulding v. Railway Co., 30 Wis. 110 351, 355, 357
Spellman v. Rapid-Transit Co., 36 Neb. 890, 55 N. W. 270 202
Spelman v. Iron Co., 56 Barb. (N. Y.) 151 106
Spence v. Schultz, 103 Cal. 208, 37 Pac. 220 165
Spencer v. Lovejoy, 96 Ga, 657, 23 S. E. 836 199
v. Railroad Co., 29 Iowa, 55 38
Spinner v. Railroad Co., 67 N. Y. 153 341, 345, 346
Splittdorf v. State, 108 N. Y. 205, 15 N. E. 322 49
Spofford v. Harlow, 3 Allen (Mass.) 176 46
v. Railroad Co., 128 Mass. 326 200
Spohn v. Dives, 174 Pa, St. 474, 34 Atl. 192 , . . 301
Spokane & P. Ry. Co. v. Holt (Idaho) 40 Pac. 56 62
Spooner v. Mattoon, 40 Vt. 300 31
Spoue v. Hemmingway, 14 Pick. (Mass.) 1 161
Sprague v. Baker, 17 Mass. 586 374
v. City of Worcester, 13 Gray (Mass.) 193 442
v. Railway Co., 34 Kan. 347, 8 Pac. 465 238, 251
52 X. Y. 637 . . 287
v. Smith, 29 Vt. 421 216
Spray v. Ammerman, 66 111. 309 364
Springfield v. Spence, 39 Ohio St. 665 429
Springfield Consol. Ry. Co. v. Welsch, 155 111. 511, 40 N. E. 1034 67, 68
Sprong v. Railroad Co., 60 Barb. (N. Y.) 30 83
Sprow v. Railroad Co., 163 Mass. 330, 39 N. E. 1024 330, 337
Sprowl v. Kellar, 4 Stew. & P. (Ala.) 382 228
Squire v. Railroad Co., 98 Mass. 239 239, 247, 248
Staal v. Railroad Co., 57 Mich. 239, 23 N. W. 795 412
Stackus v. Railroad Co., 7 Hun (N. \ .) 559 330
CASES CITED. 583
Page
Stacy v. Bank, 12 Wis. 629 387
Stafford v. City of Oskaloosa, 57 Iowa, 749, 11 X. W. 668 60, 394
Stahl v. City of Duluth, 71 Minn. 341, 74 X. W. 143 141
Standard Oil Co. v. Bowker, 141 Ind. 12, 40 N. E. 128 54
v. Helmick, 148 Ind. 457, 47 X. E. 14 120
Standish v. Steamship Co., Ill Mass. 512 201
Stanley v. City of Davenport, 54 Iowa, 463, 2 N. W. 1064, 6 X. W. 706 446
Stannard v. Ullithorne, 10 Bing. 491 373, 374
Stanton v. Railroad Co., 91 Ala. 382, 8 South. 798 18
Staples v. Schmid, 18 R. I. 224, 26 Atl. 193-196 169, 174
Stapleton v. City of Newburgh, 9 App. Div. 39, 41 N. Y. Supp. 96 432
Starling v. Incorporated Town of Bedford, 94 Iowa, 194, 62 N. W. 674 437
Starr v. Railway Co., 67 Minn. 18, 69 N. W. 632 212
State v. Berdetta, 73 Ind. 185 435
v. Boughton, 58 Mo. App. 155 386
v. Campbell, 32 N. J. Law, 309 183, 184, 199
v. Chovin, 7 Iowa, 204 196
v. Covington, 29 Ohio St. 102 443
v. Dalton, 69 Miss. 611, 10 South. 578 383
v. Gilmore, 24 N. H. 461 403
v. Herod, 6 Blackf. (Ind.) 444 384
v. Kinney, 34 Minn. 311, 25 X. W. 705 169, 185
v. Koontz, 83 Mo. 323 383
v. Lindsay, 73 Mo. App. 473 383
v. Malster, 57 Md. 287 132
v. Merritt, 35 Conn. 314 435
v. Meyer, 2 Mo. App. 413 386
v. Moore, 31 Conn. 479 308
v. O'Xeill (Mo. Sup.) 52 S. W. 240 382
v. Overton, 24 N. J. Law, 435, 441 196-198
v. Plass, 58 Mo. App. 148 386
v. Powell, 44 Mo. 436 54
v. Probate Court, 51 Minn. 241. 53 X. W. 463 406
V. Railroad Co. (Md.) 17 Atl. 88 404
24 Md. 84 405, 410
70 Md. 319, 17 Atl. 88 403
60 Me. 145 403
60 Me. 490 397, 398
61 Me. 114 397
76 Me. 357 83
71 Mo. App. 385 271
52 X. H. 528 403
v. Smith, 78 Me. 260, 4 Atl. 412 57, 157, 167
v. Spokane St. Ry. Co., 19 Wash. 518, 53 Pac. 719 217
v. Woodward, 23 Vt. 92 435
Stebbins v. Railroad Co., 54 Vt. 464 36, 54
Stedman v. City of Rome, 88 Hun, 279, 34 N. Y. Supp. 737 437
Steel v. Borough of Huntingdon (Pa. Sup.) 4.3 Atl. 398 437
T. Burkhardt, 104 Mass. 59 47
584 CASES CITED.
Page
Steel v. Kurtz, 28 Ohio St. 191 404, 405
v. Railway Co., 107 Mich. 516, 65 N. W. 573 333
Steele v. McTyer's Adm'r, 31 Ala. 667 216
v. Railway Co. (Wash.) 57 Pac. 820 330
v. Townsend, 37 Ala. 247 220
Steers v. Steamship Co., 57 N. Y. 1 219, 247, 271
Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102 112
Steinhofel v. Railway Co., 92 Wis. 123, 65 N. W. 852 338
Steinke v. Match Co., 87 Wis. 477, 58 N. W. 842 151
Steinmetz v. Kelly, 72 Ind. 442 35
Steinson v. Heath, 3 Lev. 400 455
Steinweg v. Railway Co., 43 N. Y. 123 223, 355
Stell, Ex parte, 4 Hughes, 157, Fed. Gas. No. 13,358 324
Stenberg v. Willcox, 96 Tenn. 163, 33 S. W. 917 313
Stendal v. Boyd (Minn.) 75 N. W. 735 307
Stephens v. City of Macon, 83 Mo. 345 84
v. Doe, 73 Cal. 27, 14 Pac. 378 146
Stephenson v. Duncan, 73 Wis. 404, 41 N. W. 337 116
v. Hart, 4 Biiig. 476, 484 283
Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987 48, 312
Stetler v. Railway Co., 46 Wis. 497, 1 N. W. 112 27, 129
49 Wis. 609, 6 N. W. 303 96
Stetson v. Kempton, 13 Mass. 272 444
Stevens v. Armstrong, 6 N. Y. 435 60
v. Nichols, 155 Mass. 472, 29 N. E. 1150 49, 50
v. Railway Co., 67 Mo. App. 356 31
v. Walker, 55 111. 151 372
Stevenson v. Gelsthorpe, 10 Mont. 563, 27 Pac. 404 378
Steves v. Railroad Co., 18 N. Y. 422 339
Stewart v. City of Nashville, 96 Tenn. 50, 33 S. W. 613 85
v. Ferguson, 34 App. Div. 515, 54 N. Y. Supp. 615 90, 133
v. Gracy, 93 Tenn. 314, 27 S. W. 664 279, 280
v. Railroad Co., 103 Ind. 44, 2 N. E. 208 403, 416
21 Ind. App. 218, 52 N. E. 89 .- 252
1 McCrary, 312, 3 Fed. 768 294
77 N. W. (Mich.) 643 331, 335
90 N. Y. 588 170
40 W. Va. 188, 20 S. E. 922 108-110
Stickney v. Munroe, 44 Me. 195 314
Stierle v. Railway Co., 156 N. Y. 70, 50 N. E. 419 202
Stiff v. McLaughlin, 19 Mont. 300, 48 Pac. 232 ' 381
Stiles v. Davis, 1 Black, 101 232, 233
v. Geesey, 71 Pa. St. 439 37
v. Railroad, 65 Ga. 370 211
Stilling v. Town of Thorp, 54 Wis. 528, 11 N. W. 906 426
Stillson v. Railroad Co., 67 Mo. 671 335
Stimson v. Railroad Co., 98 Mass. 83 271
Stinnett v. City of Sherman (Tex. Civ. App.) 43 S. W. 847 442
Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030. .441, 445
CASES CITED. 5S5
Page
rStoeckman v. Railroad Co., 15 Mo. App. 503 83
.Stoher v. Railway Co., 91 Mo. 509, 4 S. W. 389 408
Stokes v. Railroad Co., 107 N. C. 178, 11 S. E. 991 208
.Stoll v. Mining Co. (Utah) 57 Pac. 295. .. 99
.Stone v. Hills, 45 Conn. 44 173
v. Hunt, 94 Mo. 475, 7 S. W. 431 86
114 Mo. 66, 21 S. W. 454 42
v. Inhabitants, 100 Mass. 50 433
v. Jackson, 16 C. B. 199 310
v. Railroad Co., 171 Mass. 536, 51 N. E. 1 20, 87
115 N. Y. 104, 21 N. E. 712 66
v. Railroad Corp., 19 N. H. 427 166
v. Rice, 58 Ala. 95 286
v. Trust Co., 116 U. S. 307, 16 Sup. Ct. 334, 388, 1191 201
v. Waitt, 31 Me. 409 281
:Stoneman v. Railway Co., 52 N. Y. 429 270
Storey v. Ashton, L. R. 4 Q. B. 476 173
Storr v. Crowley, 1 McClel. & Y. 129 282, 283
Storrs v. City of Utica, 17 N. Y. 104 164, 174
-Stott v. Harrison, 73 Ind. 17 374
Stough v. State, 88 Ala. 234, 7 South. 150 378
Stover v. Inhabitants, 51 Me. 439 54
Strader v. Railroad Co., 157 N. Y. 708, 52 N. E. 1126 129
.Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634 158, 171
Strand v. Railway Co., 67 Mich. 380, 34 N. W. 712 183
Straus v. Railroad Co., 75 Mo. 185 52, 181
Strauss v. Mfg. Co., 23 App. Div. 1, 48 N. Y. Supp. 425 133
Strawbridge v. Bradford, 128 Pa. St. 200, 18 Atl. 346 66
:Street v. Inhabitants, 105 Mass. 82 61
Street Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333 , 179
Stringham v. Stewart, 100 N. Y. 516, 3 N. E. 575 151
Stroble v. Railway Co., 70 Iowa, 555, 31 N. W. 63 147
Strodtman v. Menard Co., 56 111. App. 120 372
Strong v. Railway Co., 94 Iowa, 380, 62 N. W. 799 103
Struck v. Railway Co., 58 Minn. 298, 59 N. W. 1022 337
Struckmeyer v. Lamb, 64 Minn. 57, 65 N. W. 930 374
:Strudgeon v. Village of Sand Beach, 107 Mich. 496, 65 N. W. 616 54
Strutzel v. Railway Co., 47 Minn. 543, 50 N. W. 690 410
Stuart v. Hawley, 22 Barb. (N. Y.) 619 349, 350
v. Machiasport, 48 Me. 477 70, 77, 83
Stubbs v. Scene's Adm'r, 37 Ala. 627 372
Stucke v. Railroad Co., 50 La. Ann. 172, 23 South. 342 151
9 Wis. 202 52
Sturges v. Society, 130 Mass. 414 162, 163
Sturgis v. Railway Co., 72 Mich. 619, 40 N. W. 914 209
v. Robbins, 62 Me. 289 349
Styles v. Railroad Co., 118 N. C. 1084, 24 S. E. 740 38, 52
.Sue, The, 22 Fed. 843 195
(i CASES CITED.
Pag&
Sullivan v. Mfg. Co., 113 Mass. 396 113
v. Railroad Co., 62 Conn. 209, 25 Atl. 711 146-
148 Mass. 119, 18 N. E. 678 183, 197
112 N. Y. 643, 20 N. E. 509 128, 129-
30 Pa. St. 234 54
v. Thompson, 99 Mass. 259 283
Sullivan's Adm'r v. Bridge Co., 9 Bush (Ky.) 81 37
Sultana, The, v. Chapman, 5 Wis. 454 285-
Summers v. Daviess Co., 103 Ind. 262, 2 N. E. 725 443
Sunderland v. Westcott, 2 Sweeny (N. Y.) 260 258-
Sunney v. Holt, 15 Fed. 880 9
Supervisors Rock Island Co. v. U. S., 4 Wall. 435 425
Surrey, The, 26 Fed. 791 .' 286
Sutherland v. Ingalls, 63 Mich. 620, 30 N. W. 342 169
Sutton v. Board, 41 Miss. 236 456-
Suydam v. Moore, 8 Barb. (N. Y.) 358 156-
Swainson v. Railway Co., 3 Exch. Div. 341 130
Swanson v. City of Lafayette, 134 Ind. 625, 33 N. E. 1033 105-
Sweeney Y. Envelope Co., 101 N. Y. 520, 5 N. E. 358 91, 121
Sweeny v. Murphy, 32 La. Ann. 628 156-
v. Railroad Co., 10 Allen (Mass.) 368 69, 305, 325, 333
Sweet v. Barney, 23 N. Y. 335 215
v. Railroad Co., 87 Mich. 559, 49 N. W. 559 115
40 Atl. (R. I.) 237 4ia
Swetland v. Railroad Co., 102 Mass. 276 233, 234
Swift v. Railroad Co., 123 N. Y. 645, 25 N. E. 378 327
Swindler v. Hilliard, 2 Rich. Law (S. C.) 286 216, 220
Swinfen v. Chelmsford, 5 Hurl. & N. 890 372
Swinyard v. Bowes, 5 Maule & S. 62 387
Swoboda v. Ward, 40 Mich. 420 87
Swords v. Edgar, 59 N. Y. 28 312
Sykes v. Railway Co., 44 Law J. C. P. 191, 32 Law T. (N. S.) 199, 23
Wkly. Rep. 473 411
Symns v. Schotten, 35 Kan. 310, 10 Pac. 828 298-
Symonds v. Board, 71 111. 355 450
v. Sup'rs. 71 111. 355 456
Szathmary v. Adams, 166 Mass. 145, 44 N. E. 124 311
T
Tainter v. City of Worcester, 123 Mass. 311 450
Talbot v. Railroad Co., 151 N. Y. 155, 45 N. E. 382 43S
Talbott v. Transportation Co., 41 Iowa, 247 253
Tally v. Ayres, 3 Sneed (Tenn.) 677 31, 367
Tarbell v. Railroad Co., 34 Cal. 616 193, 194
v. Shipping Co., 110 N. Y. 170, 17 N. E. 721 286-288-
Tarry v. Ashton, 1 Q. B. Div. 314 165, 303, 311
CASES CITED. 587
Page
Taylor v. Canal Co., 113 Pa. St. 162, 8 Atl. 43 327
v. Coal Co., 94 N. C. 525 420
v. Gorman, 4 Ir. Eq. 550 373
v. Inhabitants, 8 Mete. (Mass.) 4G2 452
v. Insurance Co., 37 N. Y. 275 32O
v. Mfg. Co., 140 Mass. 150, 3 N. E. 21 42
143 Mass. 470, 10 N. E. 308 109
v. Marble Co., 99 Ga. 512, 27 S. E. 768 146
v. Pennsylvania Co., 50 Fed. 755 202
v. Plumer, 3 Maule & S. 562 297
v. Railroad Co., 39 Ark. 148 .. 23&
45 Cal. 323 ' 12
L. R. 1 C. P. 385 235, 23$
48 N. H. 304 20$
174 Pa. St. 171, 34 Atl. 457 356
Taylor, B. & H. Ry. Co. v. Warner (Tex. Civ. App.) 31 S. W. 66 165
Tefft v. Wilcox, 6 Kan. 46 377
Telfer v. Railroad Co., 30 X. J. Law, 188 326, 410-
Tellman v. Plock, 21 Fed. 349 285
Tenney v. Tuttle, 1 Allen (Mass.) 185 10O
Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 18 Am. & Eng. R. Cas.
234 14, 180
v. Mansberger, 12 C. C. A. 574, 65 Fed. 196 145
Terrell Compress Co. v. Arrington (Tex. Civ. App.) 48 S. W. 59 150-
Terry v. Jewett, 78 N. Y. 338, 17 Hun, 395 413
v. Railroad Co., 13 Hun (N. Y.) 359 200
Tetherow v. Railroad Co., 98 Mo. 74, 11 S. W. 310 40&
Tewksbury v. Bucklin, 7 N. H. 518 362
Texas Cent. Ry. Co. v. Lyons (Tex. Civ. App.) 34 S. W. 362 89-
Texas, etc., R. Co. v. Capps, 16 Am. & Eng. R. Cas. 118. 271, 272
18 Cent. Law J. 211 270-
Texas Loan Agency v. Fleming (Tex. Civ. App.) 46 S. W. 63 304, 404
49 S. W. (Tex. Sup.) 1039 312
Texas Midland R. Co. v. Hooten (Tex. Civ. App.) 50 S. W. 499 357
v. Tidwell (Tex. Civ. App.) 49 S. W. 641 33&
Texas Pac. Ry. Co. v. Land Co. (Tex. Civ. App.) 49 S. W. 253 359
Texas & N. O. R. Co. v. Bingle, 91 Tex. 287, 42 S. W. 971 120
41 S. W. (Tex. Civ. App.) 90 150-
v. Crowder, 61 Tex. 262; 63 Tex. 502; 70 Tex. 222, 7 S. W. 709 39
v. Demilley (Tex. Civ. App.) 41 S. W. 147 196
v. Echols, 87 Tex. 339, 27 S. W. 60, 28 S. W. 517 103
v. Powell, 13 Tex. Civ. App. 212, 35 S. W. 841 200-
v. Tatman, 10 Tex. Civ. App. 434, 31 S. W. 333 103, 150
Texas & P. R. Co. v. Adams, 78 Tex. 272, 14 S. W. 666 296-
v. Alexander (Tex. Civ. App.) 30 S. W. 1113 180
v. Barnhart, 5 Tex. Civ. App. 601, 23 S. W. 801 29$
v. Barrett, 166 U. S. 617, 17 Sup. Ct 707 90-
v. Best, 66 Tex. 116, 18 S. W. 224 211
v. Black, 87 Tex. 160, 27 S. W. 118 188-
,588 CASES CITED.
Page
Texas & P. R. Co. v. Bond, 62 Tex. 442 184
v. Brown, 11 Tex. Civ. App. 503, 33 S. W. 146 338
v. Buckalew (Tex. Civ. App.) 34 S. W. 165 203
v. Carlton, 60 Tex. 397 393
v. Cody, 166 U. S. 606, 17 Sup. Ct. 703 338
v. Curlin, 13 Tex. Civ. App. 505, 36 S. W. 1003 3, 60
v. Dennis, 4 Tex. Civ. App. 90, 23 S. W. 400 199, 200
v. Ferguson, 9 Am. & Eng. R. Cas. 395 271
v. Fletcher, 6 Tex. Civ. App. 736, 26 S. W. 446 71
v. Gorman, 2 Tex. Civ. App. 144, 21 S. W. 158 3
v. Hamilton, 66 Tex. 92, 17 S. W. 406 29
v. Humphries (Tex Civ. App.) 48 S. W. 201 170
v. Jones (Tex. Civ. App.) 39 S. W. 124 207
v. Lester, 75 Tex. 56, 12 S. W. 955 411
v. Lively, 14 Tex. Civ. App. 554, 38 S. W. 370 38, 52
v. Mansell (Tex. Civ. App.) 23 S. W. 549 180
v. Morrison's Faust Co. (Tex. Civ. App.) 48 S. W. 1103 270
v. Mother, 5 Tex. Civ. App. 87, 24 S. W. 79 67
v. Murphy, 46 Tex. 356 2
T. Neill (Tex. Civ. App.) 30 S. W. 369 337
v. Parrish, 1 White & W. Civ. Cas. Ct. App. 942 293
v. Payne (Tex. Civ. App.) 38 S. W. 366 219, 254
v. Phillips, 91 Tex. 278, 42 S. W. 852 68
v. Reed, 88 Tex. 439, 31 S. W. 1058 149
v. Rogers, 6 C. C. A. 403, 57 Fed. 378 108
v. Ross, 7 Tex. Civ. App. 653, 27 S. W. 728 356
v. Scoville, 62 Fed. 730, 34 Am. Law Reg. 120 ' 170
v. Scrivener (Tex. Civ. App.) 49 S. W. 649 345
v. Smith, 14 C. C. A. 509, 67 Fed. 524 108
v. Thompson, 17 C. 0. A. 524, 70 Fed. 944 91
v. Wilder, 35 C. C. A. 105, 92 Fed. 953 411
v. Williams, 10 C. C. A. 463, 62 Fed. 440 172
v. Woodall, 2 Willson Civ. Cas. Ct. App. 471 324
v. Woods, S Tex. Civ. App. 462, 28 S. W. 416 18
Texas & St. L. R. Co. v. Young, 60 Tex. 201 45
Thayer v. City of Boston, 19 Pick. (Mass.) 511 425
v. Railroad Co., 93 Mich. 150, 53 X. W. 216 42
Theleman v. Moeller, 73 Iowa, 108, 34 N. W. 765 147
Thirteenth & F. St. Pass. Ry. Co. v. Boudrou, 92 Pa. St. 475 42
Thiry v. Malting Co., 37 App. Div. 391, 56 N. Y. Supp. 85 157
Thorn v. Pittard, 10 C. C. A. 352, 62 Fed. 232 145
Thomas v. City of New York, 28 Hun (N. Y.) 110 86
v. Express Co. (Minn.) 75 N. W. 1120 232
v. Kenyon, 1 Daly (N. Y.) 132 53
v. Lancaster Mills, 19 C. C. A. 88, 71 Fed. 481 222, 239
V. Railroad Co., 63 Fed. 200 236, 239
93 Iowa, 248, 61 N. W. 967 - 328
103 Iowa. 649, 72 N. W. 783 51
L. R. 5 Q. B. 22G 206
CASES CITED.
Page
Thomas v. Railroad Co., 72 Mich. 355, 40 N. W. 463 1ST
14 U. C. Q. B. 389 271
101 U. S. 71 209-
v. Railroad Corp., 10 Mete. (Mass.) 472 216, 282
v. Winchester, 6 X. Y. 397 370
Thompson v. Banking Co., 54 Ga. 509 84
v. Bowie, 4 Wall. 463 100
v. Edward P. Allis Co., 89 Wis. 523, 62 X. W. 527 10T
v. Inhabitants, 7 Pick. (Mass.) 188 75
v. Railroad Co., 70 Minn. 219, 72 X. W. 962 85
51 Mo. 190 81
22 Mo. App. 321 251
110 X. Y. 636, 17 X. E. 690 324, 325, 328-
v. Rapid-Transit Co., 16 Utah, 281, 52 Pac. 92 38, 52, 67
v. State, 3 Ind. App. 371, 28 X. E. 996 .382
v. Truesdale, 61 Minn. 129, 63 X. W. 259 199-
v. Village of Saratoga Springs, 22 App. Div. 186, 47 N. Y. Supp. 1032. . 434
Thorogood v. Bryan, 8 C. B. 115 56, 57, 61
Thorp v. Minor, 100 X. C. 152, 13 S. E. 702 173
v. Railroad Co., 61 Vt. 378, 17 Atl. 791 19
Thorpe v. Railroad Co., 76 X. Y. 402 155
Thuringer v. Railroad Co., 82 Hun, 33, 31 N. Y. Supp. 419 26, 303-
Thurston v. Railroad Co., 4 Dill. 321. Fed. Gas. Xo. 14,019 192-194
Thyng v. Railroad Co., 156 Mass. 13, 30 X. E. 169 151
Tibbetts v. Railroad Co., 62 Me. 437 166
Tierney v. Railroad Co., 85 Hun, 146, 32 X. Y. Snpp. 627 129-
33 Minn. 311, 23 N. W. 229 141
76 X. Y. 305 233
Tift v. Jones, 52 Ga. 538 53
Tigress, The, Brown & L. 45 298
Tilley v. Railroad Co., 24 X. Y. 471, 29 X. Y. 252 403, 405, 406, 408, 411
Tillman v. Fletcher, 78 Tex. 673, 15 S. W. 161 382"
Tilton v. Railroad Co., 169 Mass. 253. 47 X. E. 998 331
Timlin v. Oil Co., 126 X. Y. 514. 27 X. E. 786 314
Tindley v. City of Salem, 137 Mass. 171 427, 453-
Tinker v. Railroad Co., 71 Hun, 431, 24 X. Y. Supp. 977 174
Tinsman v. Railroad Co., 26 X. J. Law, 148 424
Tissue v. Railroad Co., 33 Alb. Law J. 284 113-
112 Pa. St. 91, 3 Atl. 667 89-
Titcomb v. Railroad Co., 12 Allen (Mass.) 254 24
Tobias v. Railway Co., 103 Mich. 330, 61 N. W. 514 337
166 Pa. St. 354, 31 Atl. 120 340
Tobin v. Cable Co. (Cal.) 34 Pac. 124 38
v. Railroad Co., 59 Me. 183 211
Todd v. City of Chicago, 18 111. App. 565 44T
v. City of Troy, 61 X. Y. 506 ' 437, 438
v. Cochell, 17 Cal. 97 319"
v. Flight. 9 C. B. (X. S.) 377 313, 314
v. Havlin, 72 Mo. App. 565 158-
-690 CASES CITED.
Page
Todd v. Eailroad Co., 3 Allen (Mass.) 18 190
Toledo, P. & W. R. Co. v. Bray, 57 111. 514 342
v. Conroy, 68 111. 560 200
v. Endres, 57 111. App. 69 356
v. Merriman, 52 111. 123 293
v. Pindar, 53 111. 447 352, 355
Toledo, W. & W. R. Co. v. Apperson, 49 111. 480 206
v. Beggs, 85 111. 80 5, 196
v. Brooks, 81 111. 245 46, 195, 196
v. Fredericks, 71 111. 294 110
v. Grable, 88 111. 441 66
v. Grush, 67 111. 262 208
v. Hamilton, 76 111. 393 222
v. Hammond, 33 Ind. 379, 382 269, 270
v. Harmon, 47 111. 298 325
v. Ingraham, 77 111. 309 117
v. Maine, 67 111. 298 324
v. Muthersbaugh, 71 111. 572 11
v. O'Connor, 77 111. 391 394
v. Thompson, 71 111. 434 222
Toledo & C. S. Ry. Co. v. Eder, 45 Mich. 329, 7 X. W. 898 345
Toledo & O. C. Ry. Co. v. Dages, 57 Ohio St. 38, 47 N. E. 1039 272
Toledo & W. Ry. Co. v. Goddard, 25 Ind. 185 55, 332
Tompkins v. Railroad Co., 66 Cal. 163, 4 Pac. 1165 57, 207
Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255 2, 35, 348
Toncray v. Dodge Co., 33 Neb. 802, 51 N. W. 235 388
Toomey v. Sanborn, 146 Mass. 28, 14 N. E. 921 50
Torbush v. City of Norwich, 38 Conn. 225 450
Torpey v. Williams, 3 Daly (N. Y.) 162 270
Torpy v. Railway Co., 20 U. C. Q. B. 446 189
Totten v. Phipps, 52 N. Y. 354 316
Tourtellot v. Rosebrook, 11 Mete. (Mass.) 460 349, 350
Towanda Coal Co. v. Heeman, 86 Pa. St. 418 174
Tower v. Railroad Co., 7 Hill (N. Y.) 47 218, 277
Townley v. Railroad Co., 53 Wis. 626, 11 N. W. 55 327
Town of Albion v. Hetrick, 90 Ind. 545 57, 86
Town of Boswell v. Wakley, 149 Ind. 64, 48 N. E. 637 432
Town of Centerville v. Woods, 57 Ind. 192 26
Town of Kentland v. Hagen (Ind. App.) 46 N. E. 43 432
Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. 452 59, 60
Town of Monroe v. Lumber Co. (N. H.) 39 Atl. 1019 319
Town of Salem v. Walker, 16 Ind. App. 687, 46 N. E. 90 87, 434
Town of Waltham v. Kemper, 55 111. 346 426
Town of Williamsport v. Lisk (Ind. App.) 52 N. E. 628 432
Town of Worthington v. Morgan, 17 Ind. App. 603, 47 N. E. 235 432
Towns v. Railway Co., 55 Am. Rep. 54)8, 37 La. Ann. 632 147
21 N. H. 364 342
Townsend v. Railroad Co., 56 N. Y. 295, 301 185, 186, 198
v. Wathen, 9 East, 277 310
CASES CITED. 591
Page
Townshend v. Gray, 62 Vt 373, 19 Atl. 635 378
Toy v. Railroad Co. (Sup.) 56 X. Y. Supp. 182 248
Trafford v. Express Co., 8 Lea (Tenn.) 96 404
Transfer Co. v. Kelly, 36 Ohio St. 86 57
Transportation Co. v. City of Chicago, 99 U. S. 635 439
Trask v. Railroad Co., 63 Cal. 96 146
v. Shotwell, 41 Minn. 66, 42 N. W. 699 48
Trent Xav. Co. v. Ward, 3 Esp. 127 226, 228
Trezona v. Railway Co., 107 Iowa, 22, 77 N. W. 486 183, 196, 199
Trimble v. Machine Works, 172 Mass. 150, 51 X. E. 463 138
v. Railroad Co., 39 App. Div. 403, 57 X. Y. Supp. 437 272
Trinity & S. Ry. Co. v. O'Brien (Tex. Civ. App.) 46 S. W. 389 208, 363
Tritz v. Kansas City, 84 Mo. 632 454
Trotter v. Furniture Co. (Tenn. Sup.) 47 S. W. 425 121
Trout v. Railroad Co., 23 Grat. (Va.) 619 343
Trow v. Railroad Co., 24 Vt. 487 51, 82, 338
v. Thomas, 70 Vt. 580, 41 Atl. 652 63, 406
Troxler v. Railway Co., 122 X. C. 902, 30 S. E. 117 151
Trustees of Village of Canandaigua v. Foster, 156 X. Y. 354, 50 N. E. 971. . 311
Tubervil r. Stamp, 1 Salk. 13 349
Tucker v. Bradley, 15 Conn. 46 381
v. Duncan, 9 Fed. 867 , 42
v. Railroad Co., 11 Misc. Rep. 366, 32 X. Y. Supp. 1 223
124 X. Y. 308, 26 X. E. 916 66
Tuel v. Weston, 47 Vt. 634 158
Tuff v. Warman, 2 C. B. (X. S.) 740 51, 338
5 C. B. (N. S.) 573 35
Tuller v. Talbot. 23 111. 357 203
Tunnel v. Pettijohn, 2 Har. (Del.) 48 263
Tupper v. Clark, 43 Vt. 200 364
Turner v. Buchanan, 82 Ind. 147 40
v. City of Xewburgh, 109 X. Y. 301, 16 X. E. 344 447
v. Craighead, 83 Hun, 112, 31 X. Y. Supp. 3G9 364
v. Haar, 114 Mo. 335, ?1 S. W. 737 23
v. Lumber Co., 119 N. C. 387, 26 S. E. 23 106
v. Railroad Co., 20 Mo. App. 632 295
40 W. Va. 675, 22 S. E. 83 119
v. Thomas, 71 Mo. 596 309
Tutein v. Hurley, 98 Mass. 211 11
Tuttle v. Railway Co., 122 U. S. 189, 7 Sup. Ct. 1166 116
Tutwiler v. Railway Co., 95 Va. 443, 28 S. E. 597 356
Twombly v. Leach, 11 Cush. (Mass.) 397 377, 378
Twomley v. Railroad Co., 69 N. Y. 158 41
Tj ler v. Ricamore, 87 Va. 466, 12 S. E. 799 23
Tyly v. Morrice, Carth. 489 259
Tyson v. Railroad Co., 61 Ala. 554 145
592 CASES CITED.
u
Page-
Ule-ry v. Jones, 81 111. 403 361
Umback v. Railway Co., 83 Ind. 191 91
Underbill v. City of Manchester, 45 N. H. 214 452
Underwood v. Hewson, 1 Strange, 596 367
v. Waldron, 33 Mich. 232 51, 338-
Unger v. Railway Co., 51 N. Y. 497 2
Union Brass Mfg. Co. v. Lindsay, 10 111. App. 583 313
Union Exp. Co. v. Graham, 26 Ohio St. 595 212, 220, 239-
v. Ohleman, 92 Pa. St. 323 283
Union Mfg. Co. v. Morrissey, 40 Ohio St. 148 120
Union Pac. R. Co. v. Callaghan, 6 C. C. A. 205, 56 Fed. 988 18, 19-
v. Doyle, 50 Neb. 555. 70 N. W. 43 132, 148
T. Dunden, 37 Kan. 1, 14 Pac. 501 409, 410
v. Ericson, 41 Neb. 1, 59 N. W. 347 94
v. Evans, 52 Neb. 50, 71 N. W. 1062 208
v. Fort, 17 Wall. 554 123
v. Jarvi, 3 C. C. A. 433, 53 Fed. 65 94
v. Lapsley's Adni'r, 2 C. C. A. 149, 51 Fed. 174 60
v. Lipprand, 5 Kan. App. 484, 47 Pac. 625 87
v. McCollum, 2 Kan. App. 319, 43 Pac. 97 15
v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619 306
v. Mitchell, 56 Kan. 324, 43 Pac. 244 185
v. Nichols, 8 Kan. 505 195, 196
v. Rainey, 19 Colo. 225, 34 Pac. 986 238
v. Ray, 46 Neb. 750, 65 N. W. 773 359
v. Rollins, 5 Kan. 167, 182 80
v. Sue, 25 Neb. 772, 41 N. W. 801 208
v. Vincent (Neb.) 78 N. W. 457 290
v. Young, 57 Kan. 168, 45 Pac. 580 70
Union Railway & Transit Co. v. Schacklett, 19 111. App. 145 207
Union Ry. & Transp. Co. v. Shacklet, 119 111. 232, 10 N. E. 896 416
Union Show Case Co. v. Blindauer, 75 111. App. 358 96
Union Steamboat Co. v. Knapp, 73 -111. 506 282, 285
Union S. S. Co. v. Claridge [1894] App. Cas. 185, 6 Reports, 434 157
Union Stock-Yards Co. v. Conoyer, 41 Neb. 617, 59 N. W. 950 85
v. Goodwin (Neb.) 77 N. W. 357 96
Union Warehouse Co. v. Prewitt's Adm'r (Ky.) 50 S. W. 964 394
U. S. v. Railroad Co., 17 Wall. 322 424
United States Exp. Co. v. Backman, 28 Ohio St. 144 215, 220, 239, 249
v. Haines, 67 111. 137 295
v. Hammer, 21 Ind. App. 186, 51 N. E. 953 283
v. Harris, 51 Ind. 127 '. 250
v. Keefer, 59 Ind. 263 284
v. Kountze, 8 Wall. 342 222
v. McCluskey, 77 111. App. 56 37
v. Root, 47 Mich. 231, 10 N. W. 351 237
CASES CITED. 593
V
Page-
Vail v. Railroad Co., 63 Mo. 230 227
Vale v. Bliss, 50 Barb. (N. Y.) 318, 358 309 1
Van Bergen v. Van Bergen, 3 Johns. Ch. (N. Y.) 282 318-
Van Brunt v. Railroad Co., 78 Mich. 530, 44 N. W. 321 415
Van Buskirk v. Roberts, 31 N. Y. 601 182, 198, 210
Vandenburgh v. Truax, 4 Denio (N. Y.) 464 54, 352
Vanderplank v. Miller, 1 Moody & M. 169 57
Vanderwerken v. Railroad Co., 6 Abb. Prac. (N. Y.) 239 415
Vandewater v. Railroad Co., 74 Hun, 32, 26 N. Y. Supp. 397 326, 329
135 N. Y. 583, 32 N. E. 636 324, 325
v. Williamson, 13 Phila. (Pa.) 140 387
Van Dusan v. Railway Co., 97 Mich. 439, 56 N. W. 848 201
Van Dusen v. Letellier, 78 Mich. 492, 44 N. W. 572 137
Vanduzer v. Railway Co., 58 N. J. Law, 8, 32 Atl. 376 345
Van Hoosear v. Town of Wilton, 62 Conn. 106, 25 Atl. 457 443
Van Horn v. City of Des Moines, 63 Iowa, 447, 19 N. W. 293 449, 450
v. Kermit, 4 E. D. Smith (N. Y.) 453 269, 275, 289
v. Railway Co., 63 Iowa, 67, 18 N. W. 679 340
Vankirk v. Railroad Co., 76 Pa. St. 66 200, 201
Van Leuven v. Lyke, 1 N. Y. 515 361, 363
Van Lien v. Mfg. Co., 14 Abb. Prac. (N. S.) 74 35
Van Loan v. Village of Lake Mills, 88 Wis. 430, 60 N. W. 710 437
Van Natta v. PoAver Co., 133 Mo. 13, 34 S. W. 505 68
Van Pelt v. City of Davenport, 42 Iowa, 308 429, 430
Van Santvoord v. St. John, 6 Hill (N. Y.) 157 294
Van Skike v. Potter, 53 Neb. 28, 73 N. W. 295 376
Van Steenburgh v. Tobias, 17 Wend. (N. Y.) 562 167
Van Winter v. Henry Co.. 61 Iowa, 684, 17 N. W. 94 447
Varnum v. Martin, 15 Pick. (Mass.) 440 373.
Vaughan v. Railroad Co., 3 Hurl. & N. 743 359, 360
5 Hurl. & N. 679, 687 3, 354
Vaught v. Board, 101 Ind. 123 456
Vaughtman v. Town of Waterloo, 14 Ind. App. 649, 43 N. E. 476 426
Veazie v. Railroad Co., 49 Me. 119 25
Vedder v. Fellows, 20 N. Y. 126 196
Veeder v. Village of Little Falls, 100 N. Y. 343, 3 N. E. 306 4
Veerhusen v. Railway Co., 53 Wis. 689, 11 N. W. 433 345
Vennall v. Garner, 1 Comp. & M. 21 37
Verdell v. Commercial Co., 115 Cal. 517, 47 Pac. 364 107
Verner v. Sweitzer, 32 Pa. St. 208 215, 216
Vick v. Railroad Co., 95 N. Y. 267. 93, 190
Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458 236
Vidette, The, 34 Fed. 396 298
Village of Coffeen v. Lang, 67 111. App. 359 434
Village of Culbertson v. Holliday, 50 Neb. 229, 69 N. W. 853 87
Village of Jefferson v. Chapman, 127 111. 438, 20 N. E. 33 44S
BAR.NEG. 38
594 CASES CITED.
Page
Village of Noble v. Hanna, 74 111. App. 564 434
Village of Orleans v. Perry, 24 Neb.' 831, 40 N. W. 417 37
Village'of Sciota v. Norton, 63 111. App. 530 432
Vincett v. Cook, 4 Hun (N. Y.) 318 46
Vinton v. Railroad Co., 11 Allen (Mass.) 304 175, 183, 192, 197
Virginia & T. R. Co. v. Sayers, 26 Grat. (Va.) 328 212, 239
Voegeli v. Granite Co., 49 Mo. App. 643 168
Vogel v. City of New York, 92 N. Y. 10 447
Voight v. Railway Co., 79 Fed. 561 '. 188
Von Wallhoffen v. Newcombe, 10 Hun (N. Y.) 236 373
Vorbrich v. Mfg. Co., 96 Wis. 277, 71 N. W. 434 120
Vose v. Railway Co., 2 Hurl. & N. 728 189, 211
Voss v. Car Co., 16 Ind. App. 271, 43 N. E. 20, 44 N. E. 1010 278
Vreeland v. Railroad Co., 109 Mich. 585, 67 N. W. 905 330
Vrooruan v. Lawyer, 13 Johns. (N. Y.) 339 363
W
Wabash Paper Co. v. Webb, 146 Ind. 303, 45 N. IS. 474 91
Wabash R. Go. v. Brown, 152 111. 484, 39 N. E. 273 244, 249
v. Harris, 55 111. App. 159 255, 256
v. Jones, 53 111. App. 125 67
v. Kelley (Ind. Sup.) 52 N. E. 152 89
v. Kingsley, 177 111. 558, 52 N. E. 931 195
v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932 97
v. Perbex, 57 111. App. 62 347
Wabash, St. L. & P. Ry. Co. v. Deardorff, 14 111. App. 401 109
v. Jaggerman, 115 111. 407, 4 N. E. 641 293
v. Locke, 112 Ind. 404, 14 N. E. 391 11
v. Shacklet, 105 111. 364 57, 86
Wabash Western Ry. Co. v. Brow, 13 C. C. A. 222, 65 Fed. 941 98
Wachsmuth v. Crane Co. (Mich.) 76 N. W. 4.97 96
Waco Artesian Water Co. v. Cauble (Tex. Civ. App.) 47 S. W. 538 32
Wade v. Lumber Co., 20 C. C. A. 515, 74 Fed. 517 217
v. Power Co., 51 S. C. 296, 29 S. E. 233 41
v. Wheeler, 3 Lans. (N. Y.) 201 279
Waggener v. Town of Point Pleasant, 42 W. Va. 798, 26 S. E. 352 432
Wagner v. Haak, 170 Pa. St. 495, 32 Atl. 1087 1G9
v. Railway Co., 97 Mo. 512, 10 S. W. 486 188
Wahl v. Shoulders, 14 Ind. App. 665, 43 N. E. 458 82
Wakefield v. Newell, 12 R. I. 75 438
Walcott v. Inhabitants, 1 Allen (Mass ) 101 444
Wald v. Railroad Co., 162 111. 545, 44 N. E. 888 23, 226, 274.
Waldele v. Railroad Co., 4 App. Div. 549, 38 N. Y. Supp. 1009 333
Waldron v. Railroad Co., 1 Dak. 351, 46 N. W. 456 270, 272
Walker v. Boiling, 22 Atl. 294 "90
v. Gillett, 59 Kan. 214, 52 Pac. 442 147
v. Hallock, 32 Ind. 239 450
CASES CITED. 595
Page
Walker v. Herron, 22 Tex. 55 366
v. Johnson, 28 Minn. 147, 9 N. W. 632 168
v. Lumber Co., 86 Me. 191, 29 Atl. 979 43
v. McXeill, 17 Wash. 582, 50 Pac. 518 405
v. Railway Co., 15 Mo. App. 333 199
v. Westfield, 39 Vt. 246 84
v. Wonderlick, 33 Neb. 504, 50 N. W. 445 382
Wall Y. Town of Highland, 72 Wis. 435, 39 X. W. 560 42
Wallace v. Cannon, 38 Ga. 199 393
v. City of Muscatine, 4 G. Greene (Iowa) 373 425
v. Express Co., 134 Mass. 95 35, 47
v. Mayor, etc., 2 Hilt. (X. Y.) 440 7
v. Stevens, 74 Tex. 559, 12 S. W. 283 418
Waller v. City of Dubuque, 69 Iowa, 541, 29 N. W. 456 448
v. Railway Co., 59 Mo. App. 410 25
1 Mo. App. Rep'r, 56 20
Wallingford v. Railroad Co., 26 S. C. 258, 2 S. E. 19 219
Wain v. Beaver, 161 Pa. St. 605, 29 Atl. 114 373
Walpole's Adm'r v. Carlisle, 32 Ind. 415 374
W'alrath v. Redfleld, 11 Barb. (X. Y.) 368 7
W T alsh v. City of Buffalo, 17 App. Div. 112, 44 N. Y. Supp. 942 434
v. The H. M. Wright, 1 Xewb. 494, Fed. Cas. Xo. 17,115 275, 277
v. Railroad Co., 171 Mass. 52, 50 X. E. 453 328, 332, 333
27 Minn. 367, 8 X. W. 145 109
145 X. Y. 301, 39 N. E. 1068 49, 50, 69, 306, 307
42 Wis. 23 175, 210
v. Sayre, 52 How. Prac. (X. Y.) 335 378
Waltemeyer v. Kansas City, 71 Mo. App. 354 434
Walter v. Railroad Co., 6 App. D. C. 20 32
Walters v. Light Co. (Colo. App.) 54 Pac. 960 40, 67
v. Railroad Co., 41 Iowa, 71, 76 62, 63. 73, 395
Walthers v. Railway Co., 72 111. App. 354 208
Walton v. Booth, 34 La. Ann. 913 370
Wanamaker v. City of Rochester, 63 Hun, 625, 17 X. Y. Supp. 321 448
Ward v. Brown, 64 111. 307 362
v. Fibre Co., 154 Mass. 419, 28 N. E. 299 155
V. Mfg. Co., 123 X. C. 248, 31 S. E. 495 87
v. Railway Co., 85 Wis. 601, 55 N. W. 771 77
v. Yanderbilt, 4 Abb. Dec. (N. Y.) 521 210
v. Weeks, 7 Bing. 211 11
Warden v. Greer, 6 Watts (Pa.) 424 234
v. Railroad Co., 137 Mass. 204 117
Warn v. Railroad Co.. 80 Hun, 71, 29 N. Y. Supp. 897 102
Warner v. Chamberlain, 7 Houst 18, 30 Atl. 638 364
v. Pacific Co., 113 Cal. 105, 45 Pac. 187 170
v. Railroad Co., 22 Iowa, 166 274
44 X. Y. 465 100, 326
94 X. C. 250 403
v. Transportation Co., 5 Rob. (X. Y.) 490 231
596 CASES CITED.
Page
Warren v. Englehart, 13 Neb. 283, 13 N. W. 401 403, 404
v. Railroad Co., 8 Allen (Mass.) 227 54, 178, 208, 334
59 Mo. App. 367, 1 Mo. App. Rep'r, 37 342, 34a
Warren Bank v. Bank, 10 Gush. (Mass.) 582 387
Wash v. Mead, 8 Hun (X. Y.) 387 303
Washington, The, and The Gregory, 9 Wall. 513 5
Washington S. Ry. Co. v. Lacey, 94 Va. 460, 26 S. E. 834 31
Washington & G. R. Co. r. Gladmon, 15 Wall. 401 67, 84
v. Harmon's Adm'r, 147 U. S. 571, 13 Sup. Ct. 557 181, 205-
v. Hickey, 5 App. D. C. 436 41
v. Patterson, 9 App. D. C. 423 177, 179
Wasmer v. Railroad Co., 80 N. Y. 212 44
Waterbury v. Railroad Co., 17 Fed. 671 188, 190, 191
104 Iowa, 32, 73 N. W. 341 208-
Water Co. v. Ware, 16 Wall. 566 174
Waters v. Fuel Co., 52 Minn. 474, 55 N. W. 52 161
v. Railroad Co. (N. J. Sup.) 43 Atl. 670 356-
Watkins v. Railroad Co., 21 D. C. 1 182
Watkinson v. Bennington, 12 Vt. 404 381
v. Laughton, 8 Johns. (N. Y.) 213 229
Watson v. Duykinck, 3 Johns. (N. Y.) 335 210.
v. Muirhead, 57 Pa. St. 161 373, 374
v. Railroad Co., 92 Ala, 320, 8 South. 770 179
3 Eng. Law & Eq. 497 295
66 Iowa, 164, 23 N. W. 380 211
42 Minn. 46, 43 X. W. 904 202
58 Tex. 434 94
Watt v. Railroad Co., 23 Nev. 154, 44 Pac. 423 354, 355
46 Pac. 52 356
Watts v. Hart, 7 Wash. 178, 34 Pac. 423 91
Way v. Railway Co., 64 Iowa, 48, 19 N. W. 828 196, 199
Weaver v. Ward, Hob. 134 367.
Webb v. Board (Mich.) 74 N. W. 734 443, 453
v. Railroad Co., 49 N. Y. 420 14, 15, 351
97 N. C. 387, 2 S. E. 440 149
7 Utah, 363, 26 Pac. 981 130, 411
Webber v. Piper, 38 Hun (N. Y.) 353 121
Weber v. Railroad Co., 20 App. Div. 292, 47 N. Y. Supp. 7 162
54 Kan. 389, 38 Pac. 569 335
58 N. Y. 451 323, 325, 330
Webster v. Quimby, 8 N. H. 382 382
v. Railroad Co., 161 Mass. 298, 37 N. E. 165 178
38 N. Y. 260 54, 57
v. Symes, 109 Mich. 1, 66 X. W. 580 : 14:
Weed v. Earner, 45 N. Y. 344 283
v. Barney, 45 N. Y. 344 283, 288
v. Bond, 21 Ga. 195 374
v. Railroad Co., 17 X. Y. 362 210
19 Wend. (X. Y.) 534 270, 293-
CASES CITED. 597
Page
Weed v. Village of Ballston Spa, 76 N. Y. 329 44
Weeks v. Railroad Co., 32 La. Ann. 615 394
72 N. Y. 50, 56 275
Wehmann v. Railway Co., 58 Minn. 22, 59 N. W. 546 252, 291
Weick v. Lander, 75 111. 93 27, 45
Weidner v. Rankin, 26 Ohio St. 522 400
Weightman v. Corporation of Washington, 1 Black, 39 425, 429, 454, 455
v. Railway Co., 70 Miss. 563, 12 South. 586 205
Weiller v. Railroad Co., 134 Pa. St. 310, 19 Atl. 702 249
Weintz v. Kramer, 44 La. Ann. 35, 10 South. 416 386
Weir v. Express Co., 5 Phila. (Pa.) 355 250, 251
Weise v. Smith, 3 Or. 445 320
W T eisser's Adm'rs v. Denison, 10 N. Y. 68 56
Weitzman v. Railroad Co., 33 App. Div. 585, 53 N. Y. Supp. 905 63
Welch v. Railroad Co., 41 Conn. 333 238
v. Wesson, 6 Gray (Mass.) 505 46
Weldon v. Railroad Co., 3 App. Div. 370, 38 N. Y. Supp. 206 60
43 Atl. (Del. Sup.) 156 68
Welfare v. Railway Co., L. R. 4 Q. B. 693 314
Wellcome v. Inhabitants, 51 Me. 313 25
Weller v. Railway Co., L. R. 9 C. P. 126 180
Welles v. Hutchinson, 2 Root (Conn.) 85 388, 389
Wellman v. Borough of Susquehanna Depot, 167 Pa. St. 239, 31 Atl. 566. .. 18
v. Miner, 19 Misc. Rep. 644, 44 N. Y. Supp. 417 155
Wells v. City of Brooklyn, 9 App. Div. 61, 41 N. Y. Supp. 143 436
v. Coe, 9 Colo. 151, 11 Pac. 50 / 146
v. Express Co., 55 Wis. 23, 11 N. W. 537, 12 N. W. 441 297
v. Navigation Co., 8 N. Y. 375 245
v. Railroad Co., 25 App. Div. 365, 49 N. Y. Supp. 510 177
24 N. Y. 181 245
7 Utah, 482, 27 Pac. 688 , 405
v. Sibley, 56 Hun, 644, 9 N. Y. Supp. 343 393
v. Steamship Co., 4 Cliff. 228, Fed. Gas. No. 17,401 232
Wells & French Co. v. Gortorski, 50 111. App. 445 112
Welsh v. Parrish, 148 Pa. St. 599, 24 Atl. 86 155, 161
v. Railroad Co., 10 Ohio St. 65 218, 233, 245, 262
v. Village of Rutland, 56 Vt. 228 453
v. Wilson, 34 Minn. 92, 24 N. W. 327 382
Welty v. Railroad Co., 105 Ind. 55, 4 N. E. 410 55, 348
Wenona Coal Co. v. Holmquist, 152 111. 581, 38 N. E. 946 126
Wentz v. Railway Co., 3 Hun (N. Y.) 241 199
Wertheimer v. Saunders, 95 Wis. 573, 70 N. W. 824 316
Wesley v. City of Detroit (Mich.) 76 N. W. 104 434
West v. The Berlin, 3 Iowa, 532 227
v. Martin, 31 Mo. 375 r 36
v. The Uncle Sam, 1 McAll. 505, Fed. Gas. No. 17,427 210
Westbrook v. Railroad Co., 66 Miss. 560, 6 South. 321 67, 71
Westchester & P. R. Co. v. Miles, 55 Pa. St. 209 191, 194, 195
598 CASES CITED.
Page
West Chicago St. R. Co. v. Dooley, 76 111. App. 424 411
v. Dwyer, 57 111. App. 440 135
v. Feldstein, 169 111. 139, 48 N. E. 193 87
v. Mabie, 77 111. App. 176 416
v. Schenker, 78 111. App. 592, 43
v. Walsh, 78 111. App. 595 180
Westcott v. P'argo, 61 N. Y. 254, 542 249, 258
v. Railroad Co., 61 Vt. 438, 17 Atl. 745 403, 415, 416
Westerberg v. Railroad Co., 142 Pa. St. 471, 21 Atl. 878 395
Westerfield v. Levis, 43 La. Ann. 63, 9 South. 52 71, 395
Western Coal & Mining Co. v. Berberich, 36 C. C. A. 364, 94 Fed. 329 95
Western College of Homeopathic Medicine v. City of Cleveland, 12 Ohio
St. 375 425, 449, 452
Western Maryland R. Co. v. Kehoe, 86 Md. 43, 37 Atl. 709 339
Western Ry. Co. v. Harwell, 97 Ala. 341, 11 South. 781 296
Western Ry. of Alabama v. Walker, 113 Ala. 267, 22 South. 182 203
v. Williamson, 114 Ala. 131, 21 South, 827 84
Western Sav. Fund Soc. of Philadelphia v. City of Philadelphia, 31 Pa. St.
175, 189 426, 449
Western Transp. Co. v. Barber, 56 N. Y. 544 . . '. 297
v. Downer, 11 Wall. 129 219
v. Newhall, 24 111. 466 281
Western Union Tel. Co. v. Apple (Tex. Civ. App.) 28 S. W. 1022 86
Western & A. R. Co. v. Adams, 55 Ga. 279 146
v. Cotton Mills, 81 Ga. 522, 7 S. E. 916 231, 253, 290
v. McElwee, 6 Heisk. (Tenn.) 208 293, 295
v. Meigs, 74 Ga. 857 414
v. Rogers, 104 Ga. 224, 30 S. E. 804 68
v. Young, 81 Ga. 397, 7 S. E. 912 66
West Mahanoy Tp. v. Watson, 112 Pa. St. 574, 3 Atl. 866 11
116 Pa. St. 344, 9 Atl. 430 19
Weston v. Railroad o., 73 N. Y. 595 304
42 N. Y. Super. Ct. 156 208
Westville Coal Co. v. Milka, 75 111. App. 638 116
v. Schwartz, 177 111. 272, 52 N. E. 276 135
Weymire v. Wolfe, 52 Iowa, 533, 3 N. W. 541 77, 79
Whalen v. Gaslight Co., 151 N. Y. 70, 45 N. E. 363 43, 82
v. Railroad Co., 58 Hun, 431, 12 N. Y. Supp. 527 334
114 Mich. 512, 72 N. W. 323 102
75 Wis. 654, 44 N. W. 849 66
Whaley v. Bartlett, 42 S. C. 454, 20 S. E. 745 149
Wheatley v. Railroad Co., 1 Marv. 305, 30 Atl. 660 146, 151
Wheeler v. Brant, 23 Barb. (N. Y.) 324 363
v. City of Boone (Iowa) 78 N. W. 909 436
v. City of Worcester, 10 Allen (Mass.) 591 25
Wheeling & L. E. Ry. Co. v. Koontz, 15 Ohio Cir. Ct. R. 288 298
Wheelock v. Railroad Co., 105 Mass. 203 333
Whelan v. Railroad Co., 38 Fed. 15 60
Whelton v. Railway Co. (Mass.) 52 N. E. 1072 116, 138
CASES CITED. 599
Page
Wherry v. Railway Co., 64 Minn. 415, 67 X. W. 223 335
White v. Bond Co., 58 111. 298 426
v. France, 2 C. P. Div. 308 51
v. Humphrey, 11 Q. B. 43 '. 288
v. Jameson, L. R. 18 Eq. 303 315
v. Maxcy, 64 Mo. 552 393, 415
v. Mitchell, 38 Mich. 390 298
v. Railroad Co., 136 Mass. 321 325
19 Mo. App. 400 295
30 N. H. 188 348
115 N. C. 631, 20 S. E. 191 N 189
v. Reagan, 32 Ark. 281 374
v. Southern Pac. Co. (Cal.) 54 Pac. 956 331
v. Wmnisimmet Co., 7 Gush. (Mass.) 155, 156 216, 231
v. Yazoo City, 27 Miss. 357 449
Whitehead v. Anderson, 9 Mees. & W. 518 298
Whitesell v. Hill (Iowa) 66 N. W. 894 m 377, 379
Whitesides v. Russell, 8 Watts & S. (Pa.) 44 219
White Water R. Co. v. Butler, 112 Ind. 598, 14 N. E. 599 180
Whitford v. Railroad Co., 23 X. Y. 465, 469 405
Whitmore v. Bowman, 4 G. Greene (Iowa) 148 216
v. The Caroline, 20 Mo. 513 270
v. Paper Co., 91 Me. 297, 39 Atl. 1032, 40 Lawy. Rep. Ann. 377 316
Whitney v. Car Co., 143 Mass. 243, 9 X. E. 619 217, 278
v. Gross, 140 Mass. 232, 5 X. E. 619 100
y. Lee, 8 Mete. (Mass.) 91 31
y. Preston, 29 Xeb. 243, 45 X. W. 619 383
Whitney & Starrette Co. v. O'Rourke, 172 III. 177, 50 X. E. 242 118
Whiton y. Railroad Co., 21 Wis. 310 401
Whitsett v. Slater, 23 Ala. 626 381
Whittaker v. City of Helena, 14 Mont. 124, 35 Pac. 904 60
y. Coombs, 14 111. App. 498 105
Whittington y. Pence (Ky.) 38 S. W. 843; 47 S. W. 877 383
Wibert y. Railroad Co., 12 X. Y. 245 235, 236
Wichita Yal. Ry. Co. v. Swenson (Tex. Civ. App.) 25 S. W. 47 294
Wichita & W. R. Co. y. Dayis, 37 Kan. 743, 16 Pac. 78 80
Wiegand y. Railroad Co., 75 Fed. 370 258
Wiggett y. Fox, 11 Exch. 832 129
Wiggins Ferry Co. y. Railroad Co., 73 Mo. 389 293
Wightman y. Railway Co., 73 Wis. 169, 40 X. W. 689 199
Wilcox y. Parmelee, 3 Sandf . (X. Y.) 610 224, 292
v. Railroad Co., 88 Hun, 263, 34 X. Y. Supp. 744 337
39 X. Y. 358 82, 340
11 Tex. Civ. App. 487, 33 S. W. 379 191
Wild v. City of Paterson, 47 N. J. Law, 406, 1 Atl. 490 443
v. Railroad, 171 Mass. 245, 50 X. E. 533 359
Wilde v. Transportation Co., 47 Iowa, 247 256
Wilder v. Railroad Co., 65 Me. 332 347
y. Stanley, 65 Vt. 145, 26 Atl. 189 19, 25
600 CASES CITED.
Page
Wilds v. Railroad Co., 29 N. Y. 315, 328 330
Wiley v. Railroad Co., 76 Hun, 29, 27 N. Y. Supp. 722 65
Wilkinson v. Fairrie, 1 Hurl. & C. 633 305
Willard v. Newbury, 22 Vt. 458 25
v. Pinard, 44 Vt. 34 37
Willcox v. Hines, 100 Tenn. 524, 45 S. W. 781 314
100 Tenn. 538, 46 S. W. 297 315
Willet v. Railroad Co., 114 Mich. 411, 72 N. W. 260 326
Willetts v. Railroad Co., 14 Barb. (N. Y.) 585 73
Willey v. Inhabitants, 61 Me. 569 13
Williams v. Branson, 5 N. C. 417 .- 216
v. East India Co., 3 East, 192 369
v. Gibbs, 6 Nev. & M. 788 371
v. Gill, 122 N. C. 967, 29 S. E. 879 172
v. Grant, 1 Conn. 487 218, 222, 227
v. Hodges, 113 N. C. 36, 18 S. E. 83 298
v. Irrigation Co., 96 Gal. 14, 30 Pac. 961 163, 164
v. Mercer, 139 Mass. 141, 29 N. E. 540 383
v. Moray, 74 Ind. 25 85
v. Nally (Ky.) 45 S. W. 874 379
v. Packet Co., 3 Cent. Law J. 400 275, 277
v. Railroad Co., 91 Ala. 635, 9 South. 77 393
2 Mich. 259 35, 343
119 Mo. 316, 24 S. W. 782 91
60 Tex. 205 62, 395
54 Pac. (Utah) 991 213
v. Vanderbilt, 28 N. Y. 217 210
v. Webb, 22 Misc. Rep. 513, 49 N. Y. Supp. 1111; 27 Misc. Rep. 508,
58 N. Y. Supp. 300 278
Willis v. Armstrong Co., 183 Pa. St. 184, 38 Atl. 621 18
v. City of Perry, 92 Iowa, 297, 60 N. W. 727 86
v. Publishing Co. (R. I.) 38 Atl. 947 18
v. Railway Co., 62 Me. 488 238
120 N. C. 508, 26 S. E. 784 187
122 N. C. 905, 29 S. E. 941 51, 102
Willmott v. Railway Co., 106 Mo. 535, 17 S. W. 490 205
Wilmot v. Howard, 39 Vt 447 377
Wilson v. Bumstead, 12 Neb. 1, 10 N. W. 411 400
v. City of Troy, 60 Hun. 183, 14 N. Y. Supp. 721, 135 N 7 . Y. 96, 32 N.
E. 44 164
v. Hamilton, 4 Ohio St. 722, 723 216, 231, 262, 266
v. Jefferson Co., 13 Iowa, 181 456
v. Linen Co., 50 Conn. 433 93, 146
v. Mayor, etc., 1 Denio (N. Y.) 595 428, 433, 450
v. Olano, 28 App. Div. 448, 51 N. Y. Supp. 109 50, 304
v. Railroad Co., 94 Cal. 166, 29 Pac. 861 288
21 Grat. (Va.) 654, 671 182, 239
56 Me. 60 274
26 Minn. 278, 3 N. W. 333 41, 202
CASES CITED. 601
Page
Wilson v. Railroad Co., 37 Minn. 326, 33 N. W. 908 121
97 X. Y. 87 245
132 Pa. St. 27, 18 Atl. 1087 66
51 S. C. 79, 28 S. E. 91 128, 149
v. Returning Co., 163 Mass. 315, 39 N. E. 1039 105
v. Road Co., 83 Ind. 326 86
v. Russ, 20 Me. 421 372
v. Tucker, 3 Starkie, 154 373
v. White, 71 Ga. 506 163
v. Young, 58 Ark 593, 25 S. W. 870 382
Wiltse v. Town of Tilden, 77 Wis. 152, 46 N. W. 234 403, 412, 416
Winborne v. Mitchell, 111 N. C. 13, 15 S. E. 882 385
Winch v. Conservators, L. R. 7 C. P. 458 455
Winey v. Railway Co., 92 Iowa, 622, 51 N. W. 218 331
Wing v. Railroad Co., 1 Hilt. (X. Y.) 641 222
Wink v. Weiler, 41 111. App. 336 171
Winkler v. Fisher, 95 Wis. 355, 70 X. W. 477 158
Winn v. City of Lowell, 1 Allen (.Mass.) 177 75, 336
Winnt v. Railway Co., 74 Tex. 32, 11 S. W. 907 410, 411
Winpenny v. City of Philadelphia, 65 Pa. St 136 320
Winship v. Enfield, 42 X. H. 197 83
Winslow v. Railroad Co., 42 Vt. 700 287
Winters v. Railway Co., 99 Mo. 509, 12 S. W. 652 71
Wise v. Morgan (Tenn. Sup.) 48 S. W. 971 63, 65, 66, 369
Wiseman v. Booker, 3 C. P. Div. 184 341
Wiswell v. Doyle, 160 Mass. 42, 35 X. E. 107 67, 72
Witbeck v. Holland, 45 X. Y. 13 282
v. Schuyler, 44 Barb. (X. Y.) 469 280
Witherley v. Canal Co., 12 C. B. (X. S.) 2, 8 35
Withers v. Railway Co., 3 Hurl. & X. 969 23-25
Witsell v. Railway Co., 120 X. C. 557, 27 S. E. 125 204
Witting v. Railway Co., 101 Mo. 631, 14 S. W. 743 219
Wolf v. Express Co., 43 Mo. 421 222
v. Railroad Co., 55 Ohio St. 517, 45 X. E. 708 396
v. Water Co., 10 Gal. 541 32
Wolfe v. Dorr, 24 Me. 104 381
v. Mersereau, 4 Duer (X. Y.) 473 160
v. Railway Co., 97 Mo. 473, 11 S. W. 49 297
Wolff Mfg. Co. v. Wilson, 46 111. App. 381 25
Wolford v. Mining Co., 63 Cal. 483 414
Wolski v. Knapp, Stout & Co. Company, 90 Wis. 178, 63 X. W. 87 106
Wonder v. Railroad Co., 32 Md. 411 95, 148
Wood v. Bartholomew, 122 X. C. 177, 29 S. E. 959 85
v. Clapp, 4 Sneed (Tenn.) 65 376
v. Cobb, 13 Allen (Mass.) 58 155
v. Crocker, 18 Wis. 345 218, 287
v. Graves, 144 Mass. 365, 11 X. E. 567 383
v. Heiges, 83 Md. 257, 34 Atl. 872 91
T. Railroad Co., 49 Mich. 370, 13 X. W. 779 181
602 CASES CITED.
Page-
Wood v. Railroad Co., 52 Mich. 402, 18 X. TV. 124 109
118 X. C. 1056, 24 S. E. 704 252
42 S. W. (Ky.) 349 207
27 Wis. 541 291
v. Village of Andes, 11 Hun (X. Y.) 543 76, 77
Woodbridge v. Marks, 17 App. Div. 139, 45 N. Y. Supp. 156 362
Woodhull v. City of Xew York, 76 Hun, 390, 28 X. Y. Supp. 120 442
150 X. Y. 450, 44 X. E. 1038 443
Woodman v. Railroad Co., 149 Mass. 335, 21 X. E. 482 : 161, 163
v. Tufts, 9 X. H. 88 318
Woodruff v. Bowe, 136 Ind. 431, 34 X. E. 1113 50
Woodruff Sleeping & Parlor & Coach Co. v. Diehl, 84 Ind. 474 217
Woods v. Devin, 13 111. 746 269
Woodson v. Railway Co., 21 Minn. 60 353
Woodward v. Aborn, 35 Me. 271 21, 23
v. Railroad Co., 1 Biss. 403, Fed. Cas. Xo. 18,006 291, 292
23 Wis. 400 403, 404, 416
Woolf v. Beard, 8 Car. & P. 373 37
v. Chalker, 31 Conn. 121 363-305
Woolheather v. Risley, 38 Iowa, 486 7
Wooster v. Railway Co., 74 Iowa, 593, 38 X. W. 425 51
Worden v. Railroad Co., 72 Iowa, 201, 33 X. W. 629 398
76 Iowa, 310, 41 X. W. 26 413
Worlds v. Railroad Co., 99 Ga. 283, 25 S. E. 646 109-
Worley v. Railroad Co., 1 Handy (Ohio) 481 400
Wormell v. Railroad Co., 79 Me. 397, 10 Atl. 49 114, 115, 123, 14S
Worinley v. Gregg, 65 111. 2ol 363
Worth v. Edmonds, 52 Barb. (X. Y.) 40 54, 227
Worthington v. Mencer, 96 Ala. 310, 11 South. 72 73, 74
Wright v. Brown, 4 Ind. 95 51, 338
v. Caldwell, 3 Mich. 51 280, 281
v. City of St. Cloud, 54 Minn. 94, 55 X. W. 819 53-
v. Clark, 50 Vt. 130 367
v. Council, 78 Ga. 241 450
v. Def rees, 8 Ind. 298 380
v. Railroad Co., 4 Allen (Mass.) 283 62
28 Barb. 80 90
78 Cal. 360, 20 Pac. 740 194
18 Ind. 168 341
25 X. Y. 562 98
122 X. C. 852, 29 S. E. 100 190
123 X. C. 280, 31 S. E. 652 90, 97
v. Southern Pac. Co., 14 Utah, 383, 46 Pac. 374 151
Y. Telegraph Co., 20 Iowa, 195 53
v. Wilcox, 19 Wend. (X. Y.) 343 169
Wuotilla v. Lumber Co., 37 Minn. 153, 33 X. W. 551 120
Wurdemann v. Barnes, 92 Wis. 206, 66 X. W. Ill 37G
Wyckoff v. Ferry Co., 52 X. Y. 32 21G
Wyld v. Pickford, 8 Mees. & W. 443 238-
CASES CITED. GUo-
Page
Wylie v. Birch, 4 Q. B. 566 381
Wyllle v. Palmer, 137 N. Y. 248, 33 N. E. 381 156, 157
Wyman v. Railroad Co., 34 Minn. 210, 25 N. W. 349 183, 185, 200
Wymore v. Mahaska Co., 78 Iowa, 396, 43 N. W. 264 71, 395
Wynn v. Allard, 5 Watts & S. (Pa.) 524 76-
Wynne v. Haight, 27 App. Div. 7, 50 N. Y. Supp. 187 315-
Y
Yahn v. City of Ottumwa, 60 Iowa 429, 15 N. W. 257 61
Yarnell v. Railroad Co., 75 Mo. 575 78
113 Mo. 570, 21 S. W. 1 205, 211
Yates v. Brown, 8 Pick. (Mass.) 23 159
v. Iron Co., 69 Md. 370, 16 Atl. 280 148-
v. Squires, 19 Iowa, 26 171
v. Town of Warrenton, 84 Va. 337, 4 S. E. 818 435-
Yazoo & M. V. R. Co. v. Whittington, 74 Miss. 410, 21 South. 249 344
Yeaton v. Railroad Corp., 135 Mass. 418 94, 111
Yeomans v. Navigation Co., 44 Cal. 71 ..188, 189-
Yerkes v. Sabin, 97 Ind. 141 218
Yertore v. Wiswall, 16 How. Prac. (N. Y.) 8, 28 402, 403
Yielding v. Fay, Cro. Eliz. 569 455
Yoakum v. Dryden (Tex. Civ. App.) 26 S. W. 312 280
Yorton v. Railway Co., 54 Wis. 234, 11 N. W. 482 198
Youmans v. Paine, 86 Hun, 479, 35 N. Y. Supp. 50 16
Young v. Harvey, 16 Ind. 314 309
v. Mason, 8 Ind. App. 264, 35 N. E. 521 37S
v. Railway Co., 80 Ala. 100 297
46 Fed. 160 151
25 South. (La.) 69 185
50 X. E. (Mass.) 455 177
115 Pa. St. 112, 7 Atl. 741 182
z
Zachery v. Railroad Co., 74 Miss. 520, 21 South. 246 192
75 Miss. 746, 23 South. 434 192
Zeigler v. Railroad Co., 52 Conn. 543 129, 189, 211
Ziegler v. Com., 12 Pa. St. 227 388
Zimmer v. Railroad Co., 7 Hun (N. Y.) 552 328-
Zimmerman v. Railroad Co., 71 Mo. 476 : 51
Zinn v. Steamboat Co., 49 N. Y. 442 285
Zintek v. Mill Co., 6 Wash. 178, 32 Pac. 997 150
9 Wash. 395, 37 Pac. 340 133
Zoebisch v. Tarbell, 10 Allen (Mass.) 385 305, 310
INDEX.
[THE FIGURES REFER TO PAGES.]
A
ACCEPTANCE,
carrier's liability as dependent on acceptance, 280, 281.
ACT OF GOD,
as proximate cause, 21-25.
as defense, 22.
effect on liability of passenger carrier for deviation or delay, 210, 225,
tests, 225, 226.
release from liability where loss occasioned by act of God, 225-229.
as excusing nondelivery of goods, 299.
AGENCY,
negligence of agent imputed to principal, 55.
relation as basis for master's liability to third persons, 155-160.
liability of carrier for wrongful acts of agents and employe's, 207.
connecting carrier as agent of initial carrier, 292.
authority of carrier's agent to make through transportation contract, 295,
assurance of safety of crossing by railroad agent as justifying omission-
to look and listen, 333, 334.
liability of municipality for acts of officers or agents, 440 did.
AMENDMENT,
see "Pleading."
of pleadings in action for death, 417.
ANIMALS,
care required of hirer of horse, 31.
duty of carrier to supply water to animals, 222, 223.
carriers of live stock as common carriers, 261-265.
inherent pernicious character as affecting care at hands of carrier, 265 r
266.
injuries to trespassing animals by hidden dangers, 310.
cattle upon railroad track as trespassers, 340, 341.
liability of railroad for wanton and willful injury to animals, 342, 343.
contributory negligence of owner of cattle injured by railroad, 346-348,
not trespassing when crossing railroad on highway, 348.
BAR.NEG. (605)
606 INDEX
[The figures refer to pages.]
ANIMALS Continued,
liability of owner for damages by animals ferae naturae, 360-362.
of one in control of animals, 362.
domestic animals defined, 363.
necessity that owner of domestic animal have notice of dangerous pro-
pensity, 363.
sufficiency of evidence to establish vicious propensity, 363, 364.
caveat emptor applies to sale of infected animals, 366.
liability of owner for communicating diseases, 366.
right of owner to keep diseased animals on his own premises, 366.
APPLIANCES,
duty of master as to furnishing, 90-97.
APPORTIONMENT,
of damages in concurring negligence, 26.
ARRESTS,
liability of master for malicious arrests, 171, 173.
ASSAULTS,
liability of master for assaults of servant, 170-172.
carrier may refuse to carry one intending to commit, 192.
ASSENT,
notice limiting carrier's liability must receive shipper's assent, 254-259.
what constitutes assent, 255, 256.
shipper having actual notice bound by reasonable rules of carrier without
express assent, 259-261.
ASSUMPTION OF RISK,
by one with knowledge of danger, 43.
in saving one's life or property, 43.
ATTACHMENT,
of goods in carrier's possession, validity of writ, 233.
ATTORNEYS,
knowledge of law required, 371-375.
diligence required in examination of titles, 374.
negligence in preparing and recording instruments, 374.
liability for negligence where services were gratuitous, 374.
more favorable result except for negligence must be proved, 375.
B
BAGGAGE,
acceptance of baggage check as assent to conditions limiting liability, 258,
259.
obligation of carrier to carry, 267.
INDEX. 607
[The figures refer to pages.]
BAGGAGE Continued,
what constitutes, 268-271.
custom and usage as determining character, 271, 272.
necessity of passenger's ownership. 273, 274.
necessity that passenger accompany baggage, 274.
liability for loss as affected by custody, 275-278.
sleeping-car company not liable for loss, 278.
passenger allowed reasonable time for removal, 289.
BAILEE,
care where bailment for benefit of bailor, 31.
care where bailment for mutual advantage, 31.
railroad company bailee for hire where consignee not prompt in removing
freight, 287.
sheriff as bailee for forthcoming of goods levied on, 384, 385.
BARGEMEN,
as common carriers, 215.
BILL OF LADING,
acceptance by shipper as assent to conditions, 256, 257.
necessity of reading by shipper, 257.
as severable contract, 261.
BILLS AND NOTES,
protest by notaries public, 386.
BLINDNESS,
as affecting contributory negligence, 74-76.
BOILERS.
master's liability for injuries caused by explosion, 154.
BOOK AGENTS,
right of carrier to refuse admission to train, 192.
BRIDGES,
contributory negligence of one using bridge with knowledge of unsafe
condition, 43.
risk of brakeman as to low bridges, 110.
liability of municipality for injuries, 431, 432.
of quasi municipal corporation, 454-457.
BURDEN OF PROOF,
see "Evidence."
of contributory negligence, 81-84.
where action based on failure of master to prescribe rules, 103.
as to losses on through transportation contract, 295, 296.
as to cause of fire in action against railroad, 356.
In actions for malpractice, 378, 379.
608 INDEX.
[The figures refer to pages.]
c
CANAL COMPANIES,
as common carriers, 215.
GARB,
degree with reference to extraordinary natural occurrences, 24.
degrees, 27-33.
slight care, 31.
ordinary care, 31.
great care, 32.
construction of dams, 32.
test of requisite care, 33.
degree of care required of plaintiff, 38.
test of ordinary care, 38.
degree required where terror caused by defendant's negligence, 40.
as to trespasser or licensee, 48-50.
of passenger, 58.
of child by parent, 63.
of child, 64, 65.
of lunatics and idiots, 73.
physical condition as determining degree, 74-76.
required of master as to appliances and places for work, 90-97.
as to inspection and repairs, 95.
duty of servant to observe care to avoid injury, 114.
duty of master as to instructions to minor, 119.
requisite in ejecting passenger, 185.
highest degree of care for safety of passenger, 201.
duty of carrier as to protection of goods injured by excepted cause, 221,
as to baggage on arrival at destination, 289.
degree required as to excavations by adjoining landowners, 301, 302.
of occupant towards those coming upon premises, 303.
of owner of premises as to visitors, licensees, and trespassers, 304-307.
of occupant of private and secluded grounds as to trespassers, 310.
degree of care exacted in operating railroad, 205, 321, 322.
as to furnishing stational facilities, 207-209.
ordinary care of railroad to prevent injuries to persons, 323, 324.
degree proportioned to danger, 325-328.
duty of travelers at railroad crossing to look and listen, 329-336.
traveler at obscured crossing need not alight and investigate, 334, 335.
required of railroad as to animals on or near tracks, 342-344.
by railroad as to equipment, 354, 355.
required of bearer of loaded firearms, 367, 368.
in transportation of explosives, 369.
INDEX. 609
[The figures refer to pages.1
CARE Continued,
required of attorneys, 371-375.
of physicians and surgeons, 375-378.
of officer in making sale, 384.
CARRIERS OF GOODS,
see "Carriers of Passengers"; "Railroads."
identification of shipper with carrier, 56.
doctrine of Thorogood v. Bryan, 56, 57.
definition and essential characteristics, 214-217.
as insurer, 217, 218.
not insurer against loss caused by act of shipper, 230-233.
liability as dependent on custody, 218.
burden of proof in action for loss or injury, 219, 220.
duty as to care of goods under excepted risk, 221.
liability as bailee for hire as to excepted risk, 222.
duty as to equipment, 223.
exemption from liability where loss occasioned by act of God or public
enemy, 225-230.
duty of carrier to avoid loss by public enemy, 230.
duty of shipper to acquaint carrier with nature of shipment, 230.
not liable for loss occurring through exercise of public authority, 232.
duty to ascertain validity of writ for goods, 232.
not an insurer against loss arising from inherent nature of shipment, 233.
liability for delay as dependent on contract, 234, 235.
preservation of goods during delay, 236.
contracts limiting liability of carrier of goods, 237-261.
right to contract limiting amount of liability, 247-250.
right to limit time for making claim for damages, 250, 251.
contracts to be strictly construed, 253, 254.
assent of shipper to reasonable rules of carrier, 259-261.
carriers of live stock as common carriers, 261-265.
care of live stock as affected by nature of animals, 265, 266.
obligation of passenger carrier to carry baggage, 267.
liability for loss of baggage as affected by custody, 275-278.
as dependent on complete delivery, 279, 280.
as dependent on acceptance by carrier, 280.
termination of liability by delivery to consignee, 282-290.
carrier by water not required to make personal delivery, 284-286'.
reasonable time for removal of goods shipped by water, 285.
rules governing delivery same with carriers by sea as on inland waters,
286.
termination of liability as dependent on placing car in position for un-
loading, 288.
by arrival at station and transfer to warehouse, 288.
BAR.NEG.--39
610 INDEX.
[The figures refer to pages.]
CARRIERS OF GOODS-Continued,
passenger allowed reasonable time for removal of baggage, 289.
termination of liability by delivery to connecting carrier, 290-296.
sufficiency of delivery to connecting carrier to terminate initial carrier's
liability, 290, 291.
liability for transportation over line of connecting carrier, 291-296.
contract for through transportation raised by implication, 292.
excuses for nondelivery, 296-299.
degree of care in transportation of explosives, 369.
CARRIERS OF PASSENGERS,
see "Carriers of Goods"; "Railroads."
contributory negligence of carrier, 58.
duty to protect passengers, 170.
definition, 175, 176.
construction train as carrier, 176.
significance of term "common carrier," 176.
commencement of relation, 176-178.
attempt to board train by direction of carrier's servants as creating
relation, 178.
purchase of ticket as constituting one a passenger, 178.
termination of passenger relation, 178-186.
arrival of passenger at destination, 178-180.
transfer to connecting carrier, 181, 182.
ejection of passenger, 183, 184.
continuance of relation while in station at destination, 179.
duty of carrier to announce station, 180.
not required to assist passenger to alight, 180.
passenger injured while alighting at place remote from platform on an-
nouncement of station, 180.
limitation of liability on through ticket, 181, 182.
carrier on whose line injury occurred liable, regardless of contract with
first carrier, 182.
through tickets, 182.
right of carrier to eject passenger, 183-186.
ejection for failure to pay fare, 183.
ejection for drunkenness, profanity, and indecent language, 183.
effect of tender of fare to prevent ejection, 184.
ejection of passenger for vending merchandise on train, 184.
must be made at a suitable place, 185.
resistance not essential to maintenance of action for wrongful ejection, 186.
passengers, definition, 186.
right to designate trains for carriage of passengers, 186-189.
freight trains as passenger carriers, 187, 188.
furnishing vehicles or motive power as fixing liability to passenger, 189.
INDEX. 611
[The figures refer to pages.]
CARRIERS OF PASSENGERS-Continued,
employes as passengers, 189, 190.
liability for injuries to gratuitous passengers, 190, 191.
duty to accept passengers, 191, 192.
prepayment of fare as condition precedent to passenger relation, 193.
right to refuse to sell tickets where accommodations exhausted, 193.
right to classify passengers, 194.
compensation in advance as condition of contract, 200.
stopover privileges, 200.
uniformity of rates, 200.
duty to furnish change, 201.
equipment of trains, 202, 203.
latent defects in equipment, 203.
liability for unavoidable dangers, 204.
risks assumed by passenger, 205.
liability for negligence of connecting carrier, 206, 207.
liability for wrongful acts of agents, fellow passengers, and others, 207.
liability of lessees and trustees for injuries to passengers, 209.
duty as to stational facilities, 207-209.
liability for delay, 210.
injuries to persons not passengers, 210, 211.
duty to persons accompanying passengers to trains, 211.
right to limit liability for negligence denied, 212, 213.
ATTLE,
see "Animals."
CAVEAT EMPTOR,
rule applies to purchase of infected animals, 366.
CHILDREN,
see "Parent and Child."
when sui juris, 66.
machines and attractive places, 69.
care required of tenant towards children, 305, 306.
playing with strange dog not contributory negligence, 365.
posthumous child as party to action for death by wrongful act, 404.
CIVIL RIGHTS,
Carrier may provide separate compartments for colored passengers, 195.
CLAIMS,
right of carrier to regulate manner of making claim for damages, 230, 251.
CLASSIFICATION,
Right of carrier to classify passengers, 194.
CLERKS OF COURT,
ministerial officers, and liable for negligent performance of duty, 387-389.
612 INDEX.
[The figures refer to pages.]
COLLISION,
see "Railroads."
as excuse for delay in delivery of goods, 236.
care required of railroad to prevent collision with traveler, 322-329.
COMPARATIVE NEGLIGENCE,
doctrine, 79-81.
COMPENSATION,
as essential to contract of carriage, and may be demanded in advance, 200,
for carriage of passenger must be uniform, 200.
CONCURRING NEGLIGENCE,
joint and several liability, 21.
application to municipal torts, 25.
apportionment of damages where acts are separable, 26.
relative importance of different acts disregarded, 26.
of master with fellow servant, 146-151.
CONNECTING CARRIERS,
see "Carriers of Goods"; "Carriers of Passengers."
termination of passenger relation by transfer to connecting carrier, 181,.
182.
liability under through tickets, 182.
liability for negligence of connecting carrier, 206, 207.
defined, 290.
sufficiency of delivery to connecting carrier to terminate liability of initial 1
carrier, 291.
contract for through transportation may be raised by implication, 292.
English rule making initial carrier liable for through carriage, 294, 295-
authority of agents to make through contract, 295.
presumptions and burden of proof, 295, 296.
CONTAGIOUS DISEASES,
carrier may refuse to carry one affected, 192.
CONTRACTS,
liability of carrier for breach for failure to furnish accommodation to pas-
senger, 193.
ticket as evidence of contract with passenger, 197-200.
carrier's liability for delay as dependent on special contract, 234-237.
limiting liability of carrier of goods, 237-261.
consideration to support carrier's contract limiting liability, 252, 253.
limiting liability to be strictly construed, 253.
lex loci contractus determines validity of contract limiting liability, 253,.
254.
bill of lading as severable contract, 261.
INDEX. 613
[The figures refer to page*.]
CONTRIBUTORY NEGLIGENCE,
definition, 34.
general rule, 35.
not available in action for willful tort, 35.
must proximately contribute to injury, 36.
defendant's failure to avoid consequences of injured party's negligence, 37.
degree of care required of plaintiff, 38.
plaintiff's knowledge of danger as prerequisite, 41.
assumption of risk where knowledge of danger, 43.
obligation to anticipate danger or negligence, 44.
legal status of plaintiff as affecting his contributory negligence, 45-50.
illegality of plaintiffs conduct as contributory negligence per se, 46.
available as defense where defendant fails to observe statute, 48.
breach of legal duty by defendant as relieving plaintiff from contributory
negligence, 48.
relative time of plaintiff's negligence as affecting his right to recover, 51-
54.
plaintiff's negligence after accident, 53.
of third persons, 54-74.
rule where misconduct of third party a defense, 55.
of carrier of goods to defeat recovery against third person, 66.
application to carrier of passengers, 58-60.
of husband not chargeable to wife, 60.
imputed negligence, 61-74.
of children, 64-72.
lunatics and idiots, 73.
physical condition as an element, 74.
Intoxication as evidence, 76-79.
doctrine of comparative negligence, 79-81.
burden of proof, 81-84.
pleading, 85.
evidence admissible under general denial, 86.
as question of fact, 86-88.
any evidence entitles defendant to instruction, 88.
effect of master's negligence concurring with that of fellow servant, 146-
151.
of traveler at railroad crossing, 337-340.
failure of railroad to observe statutory duty does not change rule as to
contributory negligence, 338.
<Iuty of railroad on timely discovery of one on crossing, 338, 339.
of owners of cattle injured by railroad, 346-348.
railroad fires, 358-360.
injuries caused by domestic animals, 365.
as defense in actions on municipal torts, 434.
614 INDEX.
[The figures refer to pages.]
CONTROL,
one in control of dangerous animal liable for injuries, 362.
CONVERSION,
liability for conversion committed at direction of master, 157.
CO-OPERATING CAUSE,
effect on proximate cause, 19, 20.
CORPORATIONS,
. distinction between public and private corporations, 423, 425.
CREDITORS,
of deceased excluded from distribution of recovery for death, 404.
CRIMINAL LAW,
negligence as including both heedlessness and rashness, 7.
CRIMINALS,
carrier may refuse to carry criminals as passengers, 192.
CUSTOM AND USAGE,
as determining whether given article is baggage, 271, 272.
D
DAMAGES,
as logical consequence of negligence, 8.
"damnum absque injuria," 9.
"injuria" and "damnum" distinguished, 9.
apportionment in concurring negligence, 26.
plaintiff's negligence after accident, effect on amount, 53.
measure in action against attorney for negligence, 375.
for death measured by pecuniary loss to beneficiaries, 404-415.
funeral expenses as element in actions for death, 406.
mental or physical sufferings not an element in action for death, 406.
recoverable for death of wife or child, 408-410.
loss of prospective gifts and inheritances as damages for death, 410-412.
excessive, province of court, 414.
municipality not liable for vindictive damages, 445.
DAMNUM,
distinguished from "injuria," 9.
DAMS,
construction with reference to extraordinary floods, 25.
care required in construction, 32.
breaking as act of God, 227.
right of riparian owner to construct and maintain dam, 318, 319.
DANGER,
knowledge of danger by plaintiff as prerequisite to defense of contrib-
utory negligence, 41.
INDEX. 615
[The figures refer to pages.]
DANGER Continued,
assumption of risk by one having knowledge of danger, 43.
known dangers assumed by servant, 111.
unusual dangers not assumed by servant, 113.
assumption by servant of unknown defects or dangers, 117.
effect on risk by servant of newly-discovered dangers, 117.
effect of promise to repair on risk assumed by servant, 120.
compliance with express orders as lessening risk assumed by servant,
122.
liability of carrier for unavoidable dangers, 204.
of occupant of premises for hidden dangers, 308-310.
care by railroad to prevent injuries at crossings proportioned to danger,
325-328.
DANGEROUS PREMISES,
general duty of owner, 302, 303.
removal of buildings partially destroyed by fire, 302.
construction of buildings to prevent accumulation of ice and snow,
303.
as to overhanging objects, 303.
DEAFNESS,
as affecting contributory negligence, 74-76.
duty of increased vigilance at railroad crossing, 336.
DEATH BY WRONGFUL ACT,
no right of action for under common law, 390-392.
Lord Campbell's act, 390-397.
adoption by American states, 392.
"wrongful act" denned, 393.
defense of contributory negligence open, 393, 394.
doctrine of imputed negligence applicable, 394-397.
time of death does not affect right of action, 397, 398.
to maintain action death must be proximate result of negligence, 398-400.
parties to actions, 400-^02.
necessity of allegation and proof of survival of beneficiary, 402-^04.
action may be maintained for posthumous child, 404.
damages recoverable, 404 415.
loss of support recoverable by wife or child, 407, 408.
loss of prospective gifts and inheritances as element of damages, 410-
412.
insurance received may not be considered in reduction of damages,
413, 414.
amount within discretion of jury. -41-1.
duty of court where finding of jury excessive, 414.
instructions, 414.
pleading negligence and resulting injury, 415.
616 INDEX.
[The figures refer to pages.]
DEATH BY WRONGFUL ACT Continued,
complaint must allege appointment where action brought by personal
representative, 416.
existence of beneficiaries must be pleaded, names not necessary, 416.
allegations of damages in complaint, 416, 417.
amendments of pleading, 417.
character of evidence, 418, 419.
limitation of action for death by wrongful act, 419-422.
notice as prerequisite to action, 421, 422.
DEFECTS,
latent defects, duty of carrier of passengers to inspect, 203.
DEGREES OF CARE,
see "Care."
DEGREES OF NEGLIGENCE,
no degree of negligence, 33.
DELAY.
liability of passenger carrier for delay, 210.
where loss occasioned by act of God, 224, 225.
In absence of special contract, carrier obligated to ordinary diligence,
234, 235.
where special contract for delivery at specified time, obligation absolute,
234, 235.
excuses for delay in delivery of goods by carrier, 235, 236.
DELEGATION,
master may not avoid liability by delegation, 142.
DELIVERY,
complete delivery as essential to commencement of carrier's liability, 279,
280.
place of delivery of goods to carrier, 280.
personal delivery to consignee as terminating carrier's liability, 282-284.
essentials of personal delivery of freight, 283.
delivery of C. O. D. consignment, 284.
personal delivery not required of carrier by water, 284-286.
of freight by railroad companies, 286-288.
excuses for nondelivery of freight, 296-299.
superior adverse claim, 297.
stoppage in transitu, 297, 298.
excepted perils, 299.
DEVIATION,
liability for deviation where injury caused by act of God, 224, 225.
DILIGENCE,
due diligence as to notice to consignee of arrival of consignment, 285.
required of railroad as to repairs of fences, 345.
INDEX. 617
[The figures refer to pages.]
DISCRIMINATION,
as to railroad fares prohibited, 200.
DISORDERLY PERSONS,
right of carrier to refuse to carry, 192.
DISTRIBUTION,
of recovery for death by wrongful act, 404.
creditors of deceased excluded, 404.
DOGS,
see "Animals."
liability for injury in separating fighting dogs, 12.
vicious dogs, injuries by, ,361.,. 362.
DRUGGISTS,
High degree of care in dealing in or handling poisons, 369.
DURESS,
liability of one under duress, 21.
DUTY,
see "Care."
legal duty as element of negligence, 3, 4.
breach of moral duty as actionable negligence, 4.
of carrier of goods as to preservation of goods during delay, 236.
of persons at railroad crossing to stop and listen, 329.
E
EARTHQUAKE,
as act of God, 226.
EQUIPMENT,
see "Carriers of Goods"; "Carriers of Passengers"; "Fires"; "Railroads."
EVIDENCE,
of intent admissible only on plea of malice, 8.
intoxication proved by nonexperts, 79.
burden of proof of contributory negligence, 81-84.
proof of contributory negligence under general denial, 86.
as to incompetency of fellow servant, 99.
incompetency of fellow servant not proof of negligence, 100.
admissibility of private rules of master in action by stranger, 104.
burden as to excepted causes in case of loss or injury to freight, 219, 220.
sufficiency to establish liability on carrier's contract for through trans-
portation, 292-294.
presumptions and burden of proof as to losses on through transportation
contract, 295, 296.
burden as to cause of fire in actions for injuries caused by railroad fires,
356.
618 INDEX.
[The figures refer to pages.]
EVIDENCE Continued,
presumptions where fire set out by locomotive, 357, 358.
sufficiency to establish knowledge of animal's propensity by owner, 363.
negligence of attorney may not be proved by opinion of another attorney,
375.
burden in actions for malpractice, 378, 379.
burden as to exercise of discretion by sheriff in making levy, 384.
expectancy tables as evidence in actions for death, 413, 414.
character of evidence in action for death, 418.
defendant as witness in action for death, 418, 419.
weather records as evidence on question of rain or snow, 434, 435.
EXCAVATION,
degree of care in making, 31.
right of adjoining landowners to sink foundations, 301, 302.
tenant's liability for injuries caused by excavations, 308-310.
EXEMPT PROPERTY,
sheriff liable for sale of, 383.
EXPECTANCY TABLES,
as evidence in action for death, 413, 414.
EXPLOSIVES,
negligence in keeping may be predicated upon quantity stored, 368.
degree of care in keeping and using proportionate to danger, 368, 369,
EXPRESS COMPANIES,
as common carriers, 215.
express messengers as passengers, 188.
EXPRESS RECEIPTS,
subject to same rules as bills of lading on acceptance by shipper, 257-
F
FARES,
see "Carriers of Passengers."
FELLOW SERVANTS,
duty of master as to selection and retention, 97-101.
evidence of incompetency, 99.
risk from negligence of fellow servant, 124-152.
reason for doctrine, 125--128.
definition impracticable, 127.
community of service, 128.
common employment as test, 129.
New York doctrine, 133.
rule in Ohio, 134.
repairers of machinery as fellow servants, 137, 138.
foreman and laborers, 141.
INDEX. 619
[The figures refer to pages.]
FELLOW SERVANTS Continued,
rule in federal courts, 142-145.
duty of hiring competent servants, 147.
applicability of doctrine to municipalities, 448.
FENCES,
see "Railroads."
common-law fence regulations as to animals, 341.
liability of railroad for injuries to stock as affected by failure to fence,
345-348.
sufficiency of fence, 346.
FERRIES,
as common carriers, 215.
FIREARMS,
as baggage, 269.
care required of bearer of loaded firearms, 31, 367, 368.
FIRE DEPARTMENT,
city not liable for negligence of members, 443.
FIRES,
proximate cause as applied to prairie fires, 14.
joint liability where injury caused by independent fires, 20.
proximate cause where union of independent fires, 20.
negligence gist of liability for fires, 349, 353.
one setting out fire for legitimate purpose required to use ordinary care r
349, 350.
proximate damage, 351-353.
where fire accidentally set out, liability tested by defendant's degree of
care, 351.
duty of railroad to equip locomotives with spark arresters, 354, 355.
to remove combustibles from right of way, 355, 356.
presumption of negligence where fire set out by locomotive, 357, 358.
not contributory negligence for owner of land adjacent to railroad to use-
same for any legitimate purpose, 359.
right of city to destroy buildings to prevent spread of fire, 447, 448.
FLOODS,
construction of dams with reference to floods, 25.
as act of God, 226.
FRAUD,
master liable for fraud committed by servant at his direction, 157.
FRUITS,
duty of carrier to protect from frost 223.
carrier not liable for decay of fruits, 234.
620 INDEX.
[The figures refer to pages.]
G
<3AMBLERS,
carrier may refuse transportation, 192.
-GAS WORKS,
liability for injuries where gas works controlled by city, 431.
GIFTS,
loss of prospective gifts and inheritances as damages in action for death,
410-412.
GRADES,
liability of city for alteration, 438, 439.
H
HACKMEN,
care as to hackmen bringing passengers to station, 211.
as common carrier, 215.
HEALTH,
duty of municipalities as to sanitation, 453.
HEEDLESSNESS,
distinguished from "malice," as element of negligence, 5-8.
HIGHWAYS,
railroad crossing need not be a highway, 327.
liability of quasi municipal corporation for maintenance, 454-457.
HUSBAND AND WIFE,
contributory negligence of husband not chargeable to wife, 60.
husband not next of kin, 404.
recovery for death of husband, 407, 408.
death of wife, 408, 409.
I
ILLEGAL CONDUCT,
as negligence per se, 46.
ILLINOIS,
fellow-servant doctrine, 134.
carrier of goods may contract against ordinary, but not gross, negligence,
237, 244.
IMPUTED NEGLIGENCE,
definition, 61.
contributory negligence of parent, 62-73.
negligence of parent not imputed to child, 70.
limitation of New York rule, 72.
application to death by wrongful act, 394-397.
INDEX 621
[The figures refer to pages.]
INADVERTENCE,
as element of negligence, 5.
INDECENT LANGUAGE,
right of carrier to eject passenger for using, 183.
INDEPENDENT CONTRACTOR,
definition, 160.
master's liability dependent on care in selection, 162.
where subject-matter unlawful, 163.
where duty imposed by general law, 164, 165.
"INEVITABLE ACCIDENT,"
as proximate cause, 21-25.
as defense. 22.
INFANTS,
liability for negligence, 21.
duty of master as to warning minor servant of dangers, 106, 107.
injuries by carrier to child carried free, 191.
INFIRM PERSONS,
degree of care of decrepit passenger, 205.
of infirm persons at railroad crossing, 336.
decrepitude as affecting contributory negligence, 74-76,
INNKEEPER,
sleeping-car company not an innkeeper as to passengers' effects, 216, 278,
INSANE PERSONS,
liability for negligence, 21.
rule governing children as to contributory negligence applicable to, 73.
INSPECTION,
master's duty, 95.
duty of careful inspection of roadbed, 206.
INSURANCE.
may not be considered to reduce damages for death by wrongful act, 413,
414.
INSURER,
carrier of passengers as insurer, 203.
in absence of special contract, carrier of goods an insurer, 217.
reason for rule holding carrier as insurer, 220.
not insurer against loss caused by act of shipper, 230-233.
INTERVENING CAUSE,
as proximate cause of injury, 17.
infants, insane persons, and persons under duress, 21.
INTOXICATION,
not conclusive evidence of contributory negligence, 76-79.
care of drunken trespassers, 78.
622 INDEX.
[The figures refer to pages.]
INTOXICATION Continued,
proof by nonexpert witnesses, 79.
right to eject drunken passenger, 183.
to accept intoxicated person as passenger, 192.
care required of carrier as to intoxicated persons, 206.
civil damage acts, 400.
sale to decedent while in advanced state of intoxication, 399, 400.
J
JEWELRY,
as baggage, 270, 271.
K
KNOWLEDGE,
of danger by servant as not requiring warning. 106, 107.
effect of employ^ remaining in service after knowledge of defect, 116.
necessity that owner of domestic animal have notice of harmful propen-
sity, 363.
proof of owner's knowledge of condition of diseased animals, 363-365.
L
LAMENESS,
as affecting contributory negligence, 74-76.
LAMPS.
liability for injuries from overhanging lamps and other objects, 303.
LANDLORD AND TENANT,
injuries on leased premises where landlord has contracted to repair, 311-
313.
occupant primarily liable for injuries to third persons, 311-315.
joint liability where premises defective at time of renting, 313-315.
liability of landlord to tenant for injuries, 315-317.
as affected by contract to repair, 315, 316.
as affected by want of safe access to rented property, 316, 317.
LATERAL SUPPORT,
right of adjoining landowner to sink foundations, 301, 302.
LESSEE,
see "Landlord and Tenant."
lessees and trustees as passenger carriers, 209.
LIBEL,
municipality cannot commit, 444.
LICENSE,
acquiescence by railroad to establish railroad crossing, 327.
INDEX. 623
[The figures refer to pages.]
LICENSEE.
degree of care towards licensee, 50, 304-307.
LIGHTNING.
as act of God, 226.
LIMITATION OF ACTION,
for death by wrongful act, 419-422.
LIMITATION OF LIABILITY,
on through ticket, 181, 182.
prevailing doctrine denial of right to limit liability for negligence, 212.
carrier may limit liability except for negligence, 237-243.
Illinois permits stipulation against ordinary, but not gross, negligence,
237, 244.
New York permits stipulation against servant's, but not master's, neg-
ligence, 237, 244-246.
right of carrier of goods to contract limiting amount of liability, 247-250.
right of carrier to limit, by contract, time for making claim, 250, 251.
consideration to support contract, 252, 253.
contracts limiting liability to be strictly construed, 253, 254.
notices limiting liability must be assented to by shipper, 254-259.
what constitutes assent, 255, 256.
acceptance of ticket, baggage check, and receipts as assent to condi-
tions limiting liability, 258.
LOCOMOTIVES,
duty of railroad to equip locomotives with spark arresters, 354, 355, 358.
M
MACHINERY,
attractive to children, 69.
duty of master as to minor servants, 119.
repairers of machinery as fellow servants, 134.
defects in, contributory negligence of fellow servant not available as
defense, 151.
liability where machinery operated by lessor's servants, 157.
MALICE,
heedlessness distinguished from, 5-8.
where not pleaded, direct proof inadmissible, 8.
MALPRACTICE.
see "Attorneys"; "Physicians and Surgeons."
negligence of attorneys, 371-375.
amount actually lost by attorney's negligence measure of damages, 375.
more favorable result to client except for negligence must be proved, 375.
negligence of physicians, 375-378,
624 INDEX.
[The figures refer to pages.]
MALPRACTICE Continued,
burden of proof same as in other negligence actions, 378, 379.
specific allegation of negligence need not be set out, if facts sufficient, 379>,
MARRIED WOMEN,
see "Husband and Wife."
MA SSACHUSETTS,
. fellow-servant doctrine, 137.
MASTER AND SERVANT,
negligence of servant imputed to master, 55, 56.
duty of master as to care of servant, 89-108.
as to appliances and places for work, 90-97.
existence of relation, 92, 93.
duty to provide safe place for work, 93, 94.
of inspection and keeping in repair, 95.
of master as to selection of servants, 97-101.
as to number of servants. 98.
as to rules and regulations, 101-104.
warning and instructing servants, 105.
knowledge of danger by servant, 106.
risks assumed by servant, 108.
ordinary risks within knowledge, 108.
known dangers assumed, 111.
unusual dangers not assumed, 113.
unknown defects or dangers, 117.
newly-discovered dangers, 117.
effect of employ^ remaining after knowledge of defect, 116.
of promise to repair on risk assumed by servant, 120.
of compliance with express orders on risk assumed by servant, 122.
negligence of fellow servant, 124-152.
reason for fellow-servant doctrine, 125-128.
community of service as basis of relation of fellow servant, 128.
employ^ temporarily loaned, 128.
common employment as test of fellow servant, 129.
volunteer as servant, 129.
doctrine of vice principal, 131-142.
duty of employing competent servants, 148-151.
servant's own negligence as proximate cause of injury, 152.
master not liable where negligence concerns matters foreign to general
business, 153, 154.
where business is transacted by independent contractor, 153, 160.
liability dependent on agency relation of servant, 155-160.
on wrong being committed within scope of servant's business, 155-160.
relationship as basis for master's liability to third persons, 155-160.
in determining relation, question of choice important, but not decisive, 156.
INDEX. 62-5
[The figures refer to pages.]
MASTER AND SERVANT Continued,
effect of hiring out servant, 150, 157.
fraud, nuisance, trespass, and conversion committed under direction of
master, 157.
liability where leased machinery operated by lessor's servants, 157.
implied authority of servant to commit tort, 159, 160.
"independent contractor" defined, 160.
liability for negligence of contractor dependent on care in selection, 162.
where subject-matter unlawful, 163.
where duty imposed by general law, 164, 165.
liability for tort dependent on commission within scope of servant's em-
ployment, 167-171.
liability as affected by acts of servant for master's benefit, 168.
torts outside hours of employment, 171.
independent torts of servant, 172-174.
payment of fare by railroad employe as creating passenger relation, 190.
knowledge of servant of vicious propensity of animal as knowledge of
master, 365.
applicability of doctrine of respondeat superior to municipal torts, 446-
448.
municipality may invoke doctrine of fellow servant, 448,
MERCHANDISE,
as baggage, 270, 272, 273.
MICHIGAN,
fellow-servant doctrine, 136.
MINNESOTA,
fellow-servant doctrine, 140.
MOBS,
as excuse for delay in delivery of goods, 235.
liability of municipality for property destroyed by mobs, 452.
MONEY,
as baggage, 270.
MUNICIPAL CORPORATIONS,
'definition, 424, 425.
quasi public corporations, 425.
action against for negligence, 425-427.
distinction between corporate and governmental duties, 426, 427.
liability where act inevitably results in injury, 428.
where negligent performance of act naturally induces injury, 429-431.
for ministerial acts anticipating pecuniary profit, 431.
failure to make improvements not basis of liability, 433.
improper occupation and use of street, 435437.
notice of injury as prerequisite to action, 437, 438.
BAR.NEG. 40
626 INDEX.
[The figures refer to pages. 5
MUNICIPAL CORPORATIONS Continued,
alteration of grades, 438, 439.
injuries caused by defects in public buildings. 439. 440.
liability for conduct of officers or agents, 440 ill
acts ultra vires, 441, Hi 118.
municipality cannot commit libel, 444.
vindictive damages not recoverable against city, 445.
applicability of doctrine of respondeat superior to municipal torts, 446-448.
destruction of buildings to prevent spread of fire, 447, 448.
applicability of doctrine of fellow servant, 448.
liability for acts within legislative or judicial functions, 448-451.
no liability for failure to exercise discretionary power, 449-451.
liability for property destroyed by mobs, 452.
N
NAVIGABLE WATERS,
see "Riparian Rights" ; "Waters and Water Courses."
rights of riparian owner and navigator reciprocal, 319, 320.
impeded navigation as excuse for delay in delivery of goods, 236.
NEGLIGENCE,
definition, 1.
essential elements, 3-9.
"willful negligence," use of term unfortunate, 5.
distinction between negligence and willful tort, d.
"gross negligence," 7.
use of term in criminal law, 7.
no degrees, 33.
right to limit liability for negligence to passenger denied, 212, 213.
right of carrier to contract exempting from liability for negligence, 237-261.
general rules of negligence govern ownership and occupation of laud, 300,
301.
violation of statute requiring giving of signals by railroad at crossing as
negligence, 328, 329.
gist of liability for injuries by fires, 349.
presumption of negligence where fire set out by locomotive, 357, 358.
gist of liability for injuries by dangerous animals, 361, 362.
liability of municipal corporations, 425427.
NEW YORK,
doctrine of fellow servant, 133.
carrier of goods may contract against negligence of servant, 237, 244-246.
NOTARIES PUBLIC,
liability for negligence, 385.
nature of oflice, 385, 386.
duties as to protest of notes and bills, 386.
INDEX. 627
[The figures refer to pages.]
NOTICES,
notice of carrier limiting liability must receive shipper's assent, 254-259.
notice to consignee of arrival of freight, 285.
notice of arrival of baggage not required, 290.
as prerequisite to action for death by wrongful act, 421, 422.
notice of injury as prerequisite to action against city, 437, 438.
NUISANCE.
liability for nuisance committed under direction of master, 157.
liability to third persons as between landlord and tenant, 314, 315.
failure to abate not ground for action against city, 450.
OFFICERS,
governmental officers responsible to public at large, 379, 380.
liability of ministerial officers for negligence. 380, 381.
liability for unlawful acts, 382, 383.
municipal liability for acts of officers or agents, 440-444.
OHIO,
fellow-servant doctrine, 134.
P
PARENT AND CHILD,
see "Children."
degree of care of child required of parent, 63.
negligence of child, 64.
doctrine of imputed negligence applicable to death by wrongful act, 394-
397.
loss of support and education as damages in action for death by wrongful
act, 407, 408.
damages recoverable for death of minor child, 409, 410.
PASS,
fraudulent user of pass a trespasser, 196.
PASSENGER,
see "Carriers of Passengers."
PEDDLERS,
right of carrier to refuse admission to its trains to peddlers, 192.
PENNSYLVANIA,
fellow-servant doctrine, 139.
doctrine of superior and subordinate not recognized, 140.
PERILS,
see "Danger."
care required of one in terror from real or fancied peril, 40.
excepted perils as excusing nondelivery of goods by carrier, 209.
628 INDEX.
[The figures refer to pages.]
PHYSICIANS AND SURGEONS,
degree of skill required of physician, 375-378.
actionable negligence predicated on incorrect diagnosis, 376.
different "schools" of medicine not recognized as such in courts, 377.
rules regulating practice of medicine as within police power, 378.
pleading and evidence in suits for malpractice, 379.
pre-existing bodily condition and failure to follow directions as defense
In malpractice, 379.
PIRATES,
as public enemies, 230.
PLEADING,
specific plea of malice essential to admission of evidence of intent, 8.
contributory negligence, 85.
proof of contributory negligence under general denial, 86.
specific allegation of negligence not required, if facts sufficient to show
malpractice, 379.
necessity of allegation and proof of survival of beneficiary hi action for
death, 402-^04.
in action for death by wrongful act, 415417.
amendments of pleading in action for death, 417.
POISONS,
high degree of care required of those dealing in or handling poisons, 369.
POSTAL CLERKS,
as passengers, 188.
PRESUMPTIONS.
see "Evidence."
losses on through transportation contract, 295, 296.
failure to give warning signals, 339, 340.
of ordinary care by one approaching a crossing, 340.
of negligence where fire set out by locomotive, 357, 358.
PRINCIPAL AND AGENT,
see "Agency."
PROCESS.
duty of carrier to ascertain validity of writ before surrendering goods,
232.
care required of officer in service, 381.
duty of sheriff as to return on writ, 381, 382.
PROFANITY,
carrier may eject passenger for profanity, 183.
PROXIMATE CAUSE,
defined, 9.
that consequence of act ought to have been foreseen as test, 10, 11.
INDEX. 629
[The figures refer to pages.]
PROXIMATE CAUSE Continued,
test of negligence not test of proximate cause, 12.
application to railroad fires, 14.
causal connection, 15-17.
intervening or co-operating cause, 17.
application to union of independent fires, 20.
infants, insane persons, and persons under duress, 21.
irresponsible agent as cause, 21.
"inevitable accident" and "act of God," 21-25.
contributory negligence as proximate cause, 36.
servant's own negligence as proximate cause, 152.
to relieve carrier where loss occasioned by act of God, such cause must
be proximate, 228.
negligent fires, 351-353.
to sustain action against notary for negligence, 387.
for death by wrongful act, 398-400.
PUBLIC BUILDINGS,
injuries by reason of defects, liability of municipality, 439, 440.
PUBLIC ENEMY,
defined, 219.
carrier not an insurer against losses caused by, 229.
Q
<2UASI MUNICIPAL CORPORATION,
see "Municipal Corporations."
defined, 425, 454.
liability for failure to maintain highways and bridges, 454-457.
R
RAILROADS,
jumping from train to escape collision as contributory negligence, 4.
care in operation of trains at crossings, 31.
contributory negligence of one terrified by sudden appearance of train, 41.
risks assumed by car couplers, 110, 111.
liability for negligence of independent contractor, 164, 165.
liability for assault of brakemau, 168, 169.
construction train as passenger carrier, 176.
roadbed and tracks as part of equipment, 206.
liability to trespasser for injuries where a failure to comply with stat-
ute, 307.
degree of care exacted in operating, 205, 321, 322.
care required to avoid collision with person on track, 322-329.
degree of care to prevent injuries proportioned to danger, 325-328.
failure to give statutory signals at crossing as negligence, 328, 329.
630 INDEX.
[The figures refer to pages.]
RAILROADS Continued,
duty of traveler at obscured crossing, 331, 334, 335.
traveler at crossing not relieved from duty to look and listen by failure of
signal, 332, 333.
assurance of safety of crossing by agent as justifying omission to look and.
listen, 334.
care required of infirm persons at railroad crossing, 336.
contributory negligence of traveler at crossing, 337-340.
liability for wanton and willful injuries to animals, 342, 343.
duty after discovery of animals on or near track, 343, 344.
liability for injuries to stock as affected by failure to fence, 345-348.
negligence gist of liability for fire set out by railroad, 353.
degree of care required as to fires set out by railroad, 353-300.
duty to equip locomotives with spark arresters, 354, 35o.
duty to remove combustibles from right of way, 355, 356.
RECEIVERS,
liable to extent of funds for negligence, 159.
not servants of corporation. 159.
railroad receivers as common carriers, 215.
RECORDS,
liability of register of deeds as to record of instruments, 388.
REGISTER OF DEEDS,
ministerial officer, and liable for negligent performance of duty, 387-389.-
REPAIRS,
effect of promise to repair on risk assumed by servant, 120.
landlord's liability as affected by contract to repair, 312.
REPUTATION,
as evidence of incompetency of fellow servant, 99.
RIOTS,
rioters not public enemies, 229.
RIPARIAN RIGHTS,
construction and maintenance of dams, 318.
rule in United States, 318.
in navigable waters, 319, 320.
RISKS,
assumed by servant, 108-145.
distinction between risk and condition, 111.
of unknown defects or dangers by servant, 110.
dangers assumed by passenger, 205.
RULES AND REGULATIONS,
duty of master to make and promulgate, 101-105.
private rules of master as affecting strangers, 104.
INDEX. 631
[The figures refer to pages.]
RULES AND REGULATIONS Continued,
of carrier requiring purchase of ticket by passenger, 194.
right of carrier to make and enforce reasonable rules and regulations, 196.
s
SANITATION,
municipality not liable for failure to adopt proper sanitary measures, 453.
SCIENTER,
see "Knowledge."
SEWERS,
liability of municipality for injuries, 432.
SEX,
as affecting contributory negligence, 74-76.
SHERIFFS AND CONSTABLES,
liable in damages to process creditor for failure to exercise diligence, 381-
385.
liability for sale of exempt property, 383.
duty of sheriff as to sufficiency of levy, 383, 384.
as to sales, 384.
officer as bailee, 384, 385.
liability for escape of prisoner, 385.
SIDEWALKS,
see "Municipal Corporations."
liability of municipality for injuries, 432.
SIGNALS,
violation of statute requiring railroad signals at crossings as negligence,
328, 329.
failure to give signals does not relieve traveler from duty to look and
listen at crossing, 332, 333.
presumptions from failure to give warning signals, 339, 340.
SIGNS,
liability for injuries from overhanging signs, 303.
SLEEPING-CAR COMPANY,
not a common carrier, 216.
liability for loss of occupant's baggage, 216, 278.
SNOW AND ICE,
heavy snowfall as excuse for delay in delivery of goods, 236.
duty of builder to prevent accumulation of ice and snow, 303.
rule as to liability of city for accumulation in streets, 433.
snowstorm as act of God, 227.
SPEED,
duty of engineer to slacken on approaching crowded crossing, 326.
632 INDEX.
[The figures refer to pages.]
SPRING GUNS,
see "Traps."
STATION,
intending passenger entering depot entitled to rights of passenger, 176-
178.
passenger relation continues while passenger in station at destination, 179,
duty of carrier to announce, 180, 205.
as to stational facilities, 207-209.
care required of persons not passengers in station, 210.
STATUTES,
failure of defendant to perform duty required, effect on defense of con-
tributory negligence, 48.
liability for negligence of independent contractor where obligation imposed
by statute, 165.
STEAMBOATS,
liability for unanticipated accident, 204.
not required to make personal delivery of freight, 284-286.
STOPPAGE IN TRANSIT,
as excuse for nondelivery, 297, 298.
STORAGE,
charge by carrier for delay by consignee in removing freight, 288.
STREET RAILROADS,
see "Carriers."
STREETS,
see "Municipal Corporations."
liability of municipality for injuries on street, 432.
rule as to snow and ice, 433.
liability of city for improper occupation and use of street, 435, 437.
SUBCONTRACTORS,
master's liability for negligence of subcontractor, 166.
SUNDAY,
removal of freight by consignee on Sunday, not required, 285.
SUPERINTENDENCE,
immaterial in determining fellow-servant relation in federal court, 142.
SURGICAL INSTRUMENTS,
as baggage, 270.
T
TENDER.
tender of fare by passenger to prevent ejection, 184.
TERROR,
care required of one in terror caused by defendant's negligence, 40.
INDEX. 633
[The figures refer to pages.]
THEATER,
rights of patron to protection, 170.
TICKETS,
not prerequisite to passenger relation, 193.
user of false ticket on train a trespasser, 195.
as evidence of contract for carriage of passenger, 197-200.
provisions in tickets binding on passenger, 199, 200.
acceptance of railroad ticket as assent to condition limiting liability, 258 r
259.
TIME-TABLES.
sufficiency of publication of notice of change of time, 210.
as part of contract of passenger transportation, 210.
TOOLS,
duty of master as to furnishing, 90-97.
inspection and repair by master, 95.
as baggage, 269.
TORTS,
contributory negligence not a defense to willful, 35.
implied authority of servant to commit, 159.
master's liability dependent on commission within scope of servant's em-
ployment, 167-171.
liability for servant's tort as dependent on hours of employment, 171.
for independent tort of servant, 172-174.
liability of carrier for injuries by fellow passenger, 207.
TRAPS,
occupant of premises liable for injuries caused by setting out spring,
guns, 308.
TRESPASSERS,
plaintiff as trespasser, 48.
not a passenger, 195.
user of false ticket on train a trespasser, 195.
care required of occupant of premises towards trespassers, 307.
cattle upon railroad track as trespassers, 340, 341.
cattle crossing railroad on highway not trespassers, 348.
injuries to trespasser by domestic animals, 365.
TRUSTEES,
liability of lessees and trustees as carriers of passengers, 209.
u
ULTRA VIRES,
liability of city for acts ultra vires, 441, 111 118.
684 INCEX.
[The figures refer to pages.]
V
VALUATION,
by shipper as limiting liability for loss, 247-250.
VICE PRINCIPAL,
see "Fellow Servant."
defined, 131.
test of fellow-servant relation, 131-142.
rules for determining in various states, 133-146.
statutory definition in Minnesota, 141.
VISITORS,
care required of occupant of premises towards visitors, 304-307.
VOLUNTEER,
as servant, 129.
w
WAR,
essential to constitute relation of public enemy, 229.
WAREHOUSEMEN,
incomplete delivery to carrier as creating warehouseman relation, 279.
WATERS AND WATER COURSES,
see "Navigable Waters"; ''Riparian Rights."
rights of riparian owners, 317-320.
construction and maintenance of dams, 318, 319.
WATERWORKS,
liability of city for injuries in construction of waterworks, 431.
WEATHER RECORDS,
evidence on question of snow or ice, 434, 435.
WHARVES,
duty of carrier by water as to maintenance of wharves, 209.
WITNESSES,
see "Evidence."
defendant as witness in action for death, 418, 419.
WEST PUBLISHING CO.. PRINTERS AND STEREOTYPEBS, ST. PAUL, MINK.
C649b
|A
This series is to comprise elementary treatises on all the principal
subjects of the law. The books are made on the same general plan,
in which certain special and original features are made prominent.
These are:
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subject. This part is distinguished typographically by being printed
in large black type, and these black-letter paragraphs, running through
the book, constitute a complete, though concise, synopsis of the law
of the subject. Like the syllabus of a case, this affords a bird's-eye
view of the whole and its parts, and will be found useful by the lawyer
who wishes to refresh his memory of the outlines of this branch of the
law.
2. A Commentary, being a more extended presentation of the top^
ics in the leading analysis, distinguished by being set in different type.
The typographical separation of these two parts enables the examiner
to obtain, in the first place, a general, comprehensive grasp of the sub-
ject as a whole, and of the relation of one part to another, and, by re-
reading in connection with the more extended commentary, to fix the
details clearly in mind.
3. Notes, in still different type, containing a copious citation of
authorities, including the leading and most important cases. These
are so distinguished as to still further illustrate the principles.
PRICE, $3.75 PER VOLUME, INCLUDING DELIVERY.
WEST PUBLISHING CO., St. Paul, Minn.
f ornfiooff
f)trti6oofl of
(prof. Cfarfee (p. (Jtorfon.
THIRD EDITION: By FRANCIS B. TIFFANY.
TABLE OF CONTENTS.
Chapter I.
OF NEGOTIABILITY SO FAR AS IT RE-
LATES TO BILLS AND NOTES : Cover-
ing the origin, purpose, and indicia of nego-
tiability, distinction between negotiability
, and assignability, and payment by negotia-
ble instrument.
Chapter II.
OF NEGOTIABLE BILLS AND NOTES,
AND THEIR FORMAL AND ESSEN-
TIAL REQUISITES : Covering definition,
form, and essentials, the order, the promise,
specification of parties, capacity of parties,
delivery, date, value received, and days of
grace.
Chapter III.
ACCEPTANCE OF BILLS OF EXCHANGE :
Covering the various kinds of acceptance,
and the rules relating thereto.
Chapter IV.
INDORSEMENT : Defining and explaining the
various kinds of indorsements, and showing
their requisites and effect.
Chapter V.
OF THE NATURE OF THE LIABILITIES
OF THE PARTIES : Covering liability of
maker, acceptor, drawer, indorser, rights and
liabilities of accommodation and accommo-
dated parties, estoppel and warranties, and
damages for breach.
Chapter VI.
TRANSFER : Covering definition, validity, and
various methods of transfer, and status of
overdue paper.
Chapter VII.
DEFENSES AS AGAINST PURCHASER
FOR VALUE WITHOUT NOTICE : Cov-
ering the subject generally and fully.
Chapter VIII.
THE PURCHASER FOR VALUE WITH-
OUT NOTICE: Explaining who is, and
discussing consideration, good faith, notice,
overdue paper, presumption, and burden of
proof, etc.
Chapter IX.
OF PRESENTMENT AND NOTICE OF DIS-
HONOR : Covering presentment for accept-
ance and for payment, dishonor, protest, no-
tice of dishonor, waiver, etc.
Chapter X.
CHECKS : Covering generally the law relating
to checks.
APPENDIX: The Negotiable Instruments
Law.
1 VOL. 553 PAGES S3.75, DELIVERED.
WEST PUBLISHING CO., St. Paul, Minn.
C649-U
(2)
(0e ^ornBoofi JJeriee.)
of riminaf
. . Cfarft, Jft.,
Author of a "Handbook of the Law of Contracts."
SECOND EDITION: By FRANCIS B. TIP, ANY.
TABLE OF CONTENTS.
CHAPTER I.
DEFINITION OF CRIME : The nature of crime
and ground of punishment.
CHAPTER II.
CRIMINAL LAW : How the criminal law is pre-
scribed; the common law: statutes, and the
powers of state and federal legislatures.
CHAPTER III.
CLASSIFICATION OF CRIMES: As treason, fel-
onies, misdemeanors, etc. ; merger of offenses.
CHAPTER IV.
THE MENTAL ELEMENT IN CRIME: Con-
sidering the will, intention, motive, and crim-
inal intention or malice.
CHAPTER V.
PERSONS CAPABLE OF COMMITTING CRIME:
Covering also exemption from responsibility,
and discussing infancy, insanity, drunkenness,
ignorance or mistake of law or of fact, provo-
cation, necessity and compulsion, married wo-
men and corporations.
CHAPTER VI.
PARTIES CONCERNED: Covering effect of
joining in criminal purpose, principles in first
and second degrees, accessories before and
after the fact, terms "aider and abettor" and
"accomplice. "
CHAPTER VII.
THE OVERT ACT: Covering also attempts, so-
licitation and conspiracy.
CHAPTER VIII.
OFFENSES AGAINST THE PERSON: Cover-
ing homicide, murder, and manslaughter, with
consideration of the different degrees, acci-
dent, self-defense, etc.
CHAPTER IX.
OFFENSES AGAINST THE PERSON (Contin-
ued) : Covering abortion, mayhem, rape, sod-
oiny, seductiou, assaults, false imprisonment,
kidnapping, abduction.
CHAPTER X.
OFFENSES AGAINST THE HABITATION:
Covering arson and burglary.
CHAPTER XI.
OFFENSES AGAINST PROPERTY: Covering
larceny, embezzlement, cheating at common
law and by false pretenses, robbery, receiving
stolen goods, malicious mischief, forgery, etc.
CHAPTER XII.
OFFENSES AGAINST THE PUBLIC HEALTH,
MORALS, ETC. : Covering nuisances in gen-
eral, bigamy, polygamy, adultery, fornication,
lewdness, etc.
CHAPTER XIII.
OFFENSES AGAINST PUBLIC JUSTICE AND
AUTHORITY: Covering barretry, obstruct-
ing justice, embracery, prison breach, mispri-
sion of felony, compounding crime, perjury,
bribery, misconduct in office, etc.
CHAPTER XIV.
OFFENSES AGAINST THE PUBLIC PEACE:
Covering dueling, unlawful assembly, riot,
affray, forcible entry and detainer, libels on
private persons, etc.
CHAPTER XV.
OFFENSES AGAINST THE GOVERNMENT:
Covering treason and misprision of treason.
CHAPTER XVI.
OFFENSES AGAINST THE LAW OF NA-
TIONS: As piracy.
CHAPTER XVII.
JURISDICTION: Covering territorial limits of
states and United States, jurisdiction as deter-
mined by locality, federal courts and the com-
mon law, jurisdiction conferred by congress,
persons subject to our laws, etc.
CHAPTER XVIII.
FORMER JEOPARDY: In general.
1 VOL. 45O PAGES. $3.75 DELIVERED.
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f
. &. Cfotft,
Author of a " Handbook of Criminal Law."
CHAPTER I.
CONTRACT IN GENERAL: Covering its defi-
nition, nature,, and requisites, and discussing
agreement, obligation, promise, void, voidable,
and unenforceable agreements, and the essen-
tials of contract, etc.
CHAPTER II.
OFFER AND ACCEPTANCE: Covering im-
plied contracts, necessity for communication
and acceptance, character, mode, place, time,
and effect of acceptance, revocation, and lapse
of offer, etc.
CHAPTER III.
CLASSIFICATION OF CONTRACTS: Cover-
ing contracts of record and contracts under
seal, and their characteristics.
CHAPTER IV.
REQUIREMENT OF WRITING: Covering also
statute of frauds, and discussing promise by
executor, promise to answer for another,
agreements in consideration of marriage and
in relation to land, and agreements not to be
performed within a year, sufficiency of memo-
randum, etc.
CHAPTER V.
CONSIDERATION: Covering the necessity for
consideration, its adequacy, reality, and legal-
ity, failure of consideration, etc.
CHAPTER VI.
CAPACITY OF PARTIES: Covering political
and professional status, infants, insane and
drunken persons, married women, and corpo-
rations.
CHAPTER VII.
REALITY OF CONSENT: Covering mistake,
misrepresentation, fraud, duress, and undue
influence.
CHAPTER VIII.
LEGALITY OF OBJECT: Covering unlawful
agreements in general, agreements in viola-
tion of positive law and those contrary to pub-
lic policy, effect of illegality, conflict of laws,
etc.
CHAPTER IX.
OPERATION OF . CONTRACT : Covering the
limits of the contractual relation, assignment
of contracts, whether by act of parties or by
operation of law, joint and several contracts,
etc.
CHAPTER X.
INTERPRETATION OF CONTRACT: Cover-
ing the rules relating to evidence, proof of
document, rules of construction, penalties and
liquidated damages, etc.
CHAPTER XI.
DISCHARGE OF CONTRACT: Covering dis-
charge by agreement, by performance, by
breach, by impossibility of performance, by
operation of law, etc., and remedies on breach
of contract.
CHAPTER XII.
AGENCY: Covering the creation of the relation,
its effect and determination, the capacity,
rights, and liabilities of the parties, etc.
CHAPTER XIII.
QUASI CONTRACT: Covering obligations cre-
ated by law upon which an action ex contractu
will lie without proof of contract in fact, in-
cluding judgments, obligations imposed by
statute, acts of parties, etc.
1 VOL., 932 PAGES, $3.75 DELIVERED.
WEST PUBLISHING CO., St. Paul, Minn.
Of)
Juries.)
f
Common
SECOND EDITION.
TABLE OF CONTENTS.
Chapter I.
FORMS OP ACTION : Covering the nature and
classification of actions, real, personal, and
mixed actions, assumpsit, special and general,
debt, covenant, account or account rendered.
Chapter II.
FORMS OF ACTION (Continued): Covering
trespass, trover, case, detinue, replevin, eject-
ment, writ of entry, forcible entry and detain-
er, etc.
Chapter III.
THE PARTIES TO ACTIONS: Covering actions
in form ex contractu and ex delicto, and the
consequences of misjoinder or nonjoinder of
parties plaintiff or defendant.
Chapter IV.
THE PROCEEDINGS IN AN ACTION: Cover-
ing process, the summons, writ of attachment,
appearance, the declaration, demurrer, and va-
rious pleas, amendments, etc., the verdict, and
proceedings after the verdict, the judgment,
and proceedings thereafter to the writ of exe-
cution.
Chapter V.
THE DECLARATION: Statement of cause of
action in general; form of declaration; es-
sential averments of declaration in special as-
sumpsit or on common counts, in debt, cove-
nant, account, case, detinue, trover, trespass,
replevin, ejectment, and trespass for mesne
profits after ejectment.
Chapter VI.
THE PRODUCTION OF THE ISSUE: Discuss-
ing the rules, and covering the demurrer, the
pleadings, the traverse, forms of the general
issue and of the special traverse, protesta-
tions, exceptions, issues in fact and law, etc.
Chapter VII.
MATERIALITY IN PLEADING: Covering the
general rule, variance, limitation of traverse,
etc.
Chapter VIII.
SINGLENESS OR UNITY IN PLEADING : Cov-
ering the rules in general, duplicity, immate-
rial matter, inducement, protestation, conse-
quences of duplicity and of misjoinder, plea
and demurrer, etc.
Chapter IX.
CERTAINTY IN PLEADING: Covering the
venue, time, quantity, quality, and value,
names of persons, shovwing title and author-
ity, with subordinate rules, and special re-
quirements in different stages.
Chapter X.
CONSISTENCY AND SIMPLICITY IN PLEAD-
ING : Covering insensibility, repugnancy, am-
biguity, argumentative pleadings, pleadings
in alternative, positive statements, legal effect,
conf ormance to precedent, commencement and
conclusion.
Chapter XI.
DIRECTNESS AND BREVITY IN PLEADING:
Covering the rules generally, departure, pleas
amounting to general issue, surplusage, etc.
Chapter XII.
MISCELLANEOUS RULES: Covering con-
formance to process, alleging damages and
production of suit, order of pleading, defense,
plea in abatement, dilatory pleas, etc.
APPENDIX: Forms.
This book embodies such of the rules and principles of Common-Law Pleading as are still
recognized and applied in this country. A knowledge of the common-law system is of advantage, if
indeed, it is not essential, to a thorough understanding of both code and equity pleading.
ONE VOLUME, 615 PAGES, $3.75, DELIVERED.
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(5)
(gfocft,
Author of Black's Law Dictionary, Treatises
on Judgments, Tax Titles, etc.
Jjjeconfc (Sbifton.
TABLE OF CONTENTS.
Chapter I.
DEFINITIONS AND GENERAL PRINCIPLES:
Considering the meaning of "Constitutional"
and "Unconstitutional;" written and unwrit-
ten constitutions, bills of rights, right of revo-
lution, political and personal responsibilities,
etc.
Chapter II.
THE UNITED STATES AND THE STATES:
Considering the nature of the American
Union, sovereignty and rights of the states
and of the people, form of government, the
Federal Constitution, etc.
Chapter HI.
ESTABLISHMENT AND AMENDMENT OF
CONSTITUTIONS: Containing an historical
introduction, and considering the establish-
ment and amendment of the Federal Constitu-
tion and of State Constitutions.
Chapter IV.
CONSTRUCTION AND INTERPRETATION OF
CONSTITUTIONS: Considering the office
and duty of the judiciary in this direction.
Chapter V.
THE THREE DEPARTMENTS OF GOVERN-
MENT: Considering the division, limitations
on the departments, political and judicial
questions, etc.
Chapter VI.
THE FEDERAL EXECUTIVE: Considering
the election, qualifications, impeachment,
compensation and independence of the Presi-
dent, his oath of office, veto power, pardoning
and military power, and treaty-making power;
racancy in offlcej the cabinet, appointments
to office, presidential messages, diplomatic re-
lations, authority to convene and adjourn con-
gress, execute the laws, etc.
Chapter VII.
FEDERAL JURISDICTION: Considering the
jurisdiction, powers and procedure of Federal
courts, removal of causes, the United States
and the states as parties, etc.
Chapter VIII.
THE POWERS OF CONGRESS: Considering
the constitution, organization and government
of congress, its powers, and the limitations
thereon.
Chapter IX.
INTERSTATE LAW, as determined by the Con-
stitution: Considering its general principles,
the privileges of citizens, interstate extradi-
tion, public acts and judicial proceedings, etc.
Chapter X.
REPUBLICAN GOVERNMENT GUARANTIED.
Chapter XI.
EXECUTIVE PO\\ER IN THE STATES.
Chapter XII.
JUDICIAL POWERS IN THE STATES: Con-
sidering the system of courts, judges, juris-
diction, process and procedure.
Chapter XIII.
LEGISLATIVE POWER IN THE STATES : Con-
sidering the organization and government of
legislature, limitation and delegation of legis-
lative powers, enactment of laws, etc.
Chapter XIV.
THE POLICE POWER: Considering the police
power as vested in congress and in the states,
and its scope and limitations.
Chapter XV.
THE POWER OF TAXATION: Considering
the purposes of taxation, independence of
Federal and State governments, limitations on
power, taxation and representation, etc.
Chapter XVI.
THE RIGHT OF EMINENT DOMAIN: Defini-
tion and nature of the power, constitutional
provisions, authority to exercise, public pur-
pos3, appropriation to new uses, etc.
Chapter XVII.
MUNICIPAL CORPORATIONS: The nature,
control, powers, officers and by-laws of mu-
nicipal corporations, etc.
Chapter XVIII.
CIVIL RIGHTS, AND THEIR PROTECTION
BY THE CONSTITUTION: Considering
rights in general, liberty, due process of law,
vested rights, trial by jury, etc.
Chapter XIX.
POLITICAL AND PUBLIC RIGHTS: Consider
ing citizenship, right of suffrage, freedom ol
speech, right of assembly and petition, etc.
Chapter XX.
CONSTITUTIONAL GUARANTIES IN GRIM
INAL CASES: Considering trial by jury,
rights of accused, jeopardy, bail, ei post facto
laws, habeas corpus, etc.
Chapter XXI.
LAWS IMPAIRING THE OBLIGATION OF
CONTRACTS: Considering the obligation
and the impairment ot the contract, power of
legislature to contract, remedies on contracts,
etc.
Chapter XXII.
RETROACTIVE LAWS: Considering the validity
of retroactive statutes, curative statutes, etc.
1 VOL., 740 PAGES, $3.75, DELIVERED.
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ertee.)
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QXortnan Better.
TABLE OF CONTENTS.
Chapter I.
NATURE AND DEFINITION OF EQUITY.
Chapter II.
PRINCIPLES DEFINING AND LIMITING JU-
RISDICTION : Considering jurisdiction over
crimes, adequate legal remedy, complete re-
lief, and multiplicity of suits.
Chapter III.
THE MAXIMS OF EQUITY: Definition and
classification of maxims ; the enabling and re-
strictive maxims.
Chapter IV.
THE DOCTRINES OF EQUITY: Considering
estoppel, election, satisfaction, performance,
and conversion.
Chapter V.
THE DOCTRINES OF EQUITY (CONTINUED) :
Considering conflicting rights of purchasers,
assignees, notice, bona fide purchasers, priori-
ties, etc.
Chapter VI.
THE DOCTRINES OF EQUITY (CONTINUED):
Considering penalties and forfeitures, liqui-
dated damages.
Chapter VH.
GROUNDS FOR EQUITABLE RELIEF: Con-
sidering accident, mistake, fraud, etc.
Chapter VIII.
PROPERTY IN EQUITY TRUSTS: Covering
definition, history, and classification of trusts,
charitable trusts, duties and liabilities of trus-
tees, remedies of cestui que trust, etc.
Chapter IX.
PROPERTY IN EQUITY MORTGAGES,
LIENS, AND ASSIGNMENTS.
Chapter X.
EQUITABLE REMEDIES : Covering accounting,
contribution, exoneration, subrogation, and
marshaling.
Chapter XI.
EQUITABLE REMEDIES (CONTINUED): Cov-
ering partition and settlement of boundaries.
Chapter XII.
EQUITABLE REMEDIES (CONTINUED): Cov-
ering specific performance, and considering
enforceable contracts, grounds for refusing re-
lief, etc.
Chapter XIII.
EQUITABLE REMEDIES (CONTINUED): Cov-
ering injunctions, and considering their juris-
dictional principles, classes of cases where
remedy may be used, etc,
Chapter XIV.
REFORMATION, CANCELLATION, AND
QUIETING TITLE.
Chapter XV.
ANCILLARY REMEDIES : Covering discovery,
bills to perpetuate testimony, interpleader,
receivers, etc.
I VOL., 474 PAGES, $3.75, DELIVERED.
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^omfiooft JJertes.)
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of a "I>anc6oo8 of Crimmaf &at," ano a
"ano6ooft of Contracts"
TABLE OF CONTENTS.
Chapter I.
JURISDICTION : Covering courts of criminal ju-
risdiction and venue.
Chapter II.
APPREHENSION OF PERSONS AND PROP-
. ERTY : Covering arrest in general, warrants,
extradition, searches and seizures of property,
and taking property from prisoner.
Chapter HI.
PRELIMINARY EXAMINATION, BAIL, AND
COMMITMENT: Covering right to release on
bail, hub -as corpus, the recognizance, release
of sureties, etc.
Chapter IV.
MODE OF ACCUSATION: Covering the Indict-
ment and presentment, information, coroner's
inquisition, time of prosecution, and nolle
prosequi, etc.
Chapter V.
PLEADING THE ACCUSATION: Covering
form of indictment in general, the commence-
ment, and the statement of offense and descrip-
tion of defendant.
Chapter VI.
PLEADING THE ACCUSATION (Continued):
Covering allegation of intent, knowledge, etc. ;
technical terms; second or third offense; set-
ting forth writings; description of property
and persons ; ownership.
Chapter VII.
PLEADING THE ACCUSATION (Continued):
Covering statement of time and place.
Chapter VIII.
PLEADING THE ACCUSATION (Continued):
Covering indictments on statutes.
Chapter IX.
PLEADING THE ACCUSATION (Continued):
Covering duplicity, joinder of counts and par-
ties, election, conclusion of indictment, amend-
ment, aider by verdict, etc.
Chapter X.
PLEADING AND PRpOF: Covering variance
and conviction of minor and higher offense.
Chapter XI.
MOTION TO QUASH: Covering also arraign-
ment, demurrer, and pleas of defendant.
Chapter XII.
TRIAL AND VERDICT: Covering time and place
of trial, custody and presence of defendant,
bill of particulars, the counsel, judge and jury,
arguments and instructions, etc,
Chapter XIII.
PROCEEDINGS AFTER VERDICT: Covering
motion in arrest of judgment, sentence, new
trial, writ of error, etc.
Chapter XIV.
EVIDENCE: Covering facts in issue, motive,
res gestae, other crimes, declarations, confes-
sions, character, burden of proof, witnesses,
etc.
Chapter XV.
HABEAS CORPUS.
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Author of "Tiffany on Death by Wrongful Act"
TABLE OF CONTENTS.
Chapter I.
FORMATION OF THE CONTRACT: Covering
the capacity of parties, who may sell, the thing
sold, mutual assent, form, and price.
Chapter II.
FORMATION OF THE CONTRACT (Continued) :
Covering the statute of frauds.
Chapter III.
EFFECT OF THE CONTRACT IN PASSING
THE PROPERTY: Covering sales of specific
chattels, unconditional sales, conditional sales,
sale on trial or approval, and sale or return.
Chapter IV.
EFFECT OF THE CONTRACT IN PASSING
THE PROPERTY (Continued) : Covering sales
of chattels not specific, appropriation of property
to the contract, reservation of right of disposal,
etc.
Chapter V.
MISTAKE, FAILURE OF CONSIDERATION,
AND FRAUD : Shovying the effect of mistake,
failure of consideration, and fraud generally,
frauds on creditors, the delivery necessary as
against creditors and purchasers, etc.
Chapter VI.
ILLEGALITY : Covering sales prohibited by the
common law, by public policy, and by statute;
the effect of illegality, and the conflict of laws.
Chapter VII.
CONDITIONS AND WARRANTIES: Covering
conditions and war ranties generally.
Chapter VIII.
PERFORMANCE: Covering fully delivery, the
buyer's right of examination, acceptance, and
payment.
Chapter IX.
RIGHTS OF UNPAID SELLER AGAINST THE
GOODS: Covering the seller's lien, stoppage
in transitu, and the right of resale.
Chapter X.
ACTION FOR BREACH OF THE CONTRACT:
Covering the various remedies of the seller and
of the buyer.
\ Volume, 356 Pages. $3.75, Delivered.
WEST PUBLISHING CO., St. Paul, Minn.
Juries.)
<>f Jttf ernafionaf
Acting Judge Advocate,
United States Army.
TABLE OF CONTENTS.
INTRODUCTION.
Covering the definition, source, and nature of In-
ternational Law.
Chapter I.
PERSONS m INTERNATIONAL LAW: Cov-
ering states, their loss of identity, various unions
of states, de facto states, belligerency and recog-
nition thereof, and equality of states.
Chapter II.
THE COMMENCEMENT OF STATES FUNDA-
MENTAL RIGHTS AND DUTIES: Covering
the commencement and recognition of new
states, effect of change of sovereignty, the fun-
damental rights and duties of states, etc.
Chapter III.
TERRITORIAL PROPERTY OF A STATE:
Covering modes of acquiring property, boun-
daries, territorial waters, etc.
Chapter IV.
TERRITORIAL JURISDICTION: Covering ex-
territoriality, sovereigns and diplomatic agents
and their immunities, vessels, right of asylum,
alienage, responsibility for mob violence, extra-
dition, jurisdiction beyond state limits, etc.
Chapter V.
JURISDICTION ON THE HIGH SEAS AND
UNOCCUPIED PLACES: Covering nature of
jurisdiction, jurisdiction over merchant ships,
piracy, privateers, letters of marque, slave
trade, etc.
Chapter VI.
THE AGENTS OF A STATE IN INTERNA-
TIONAL RELATIONS: Covering public diplo-
matic agents and consuls, and matters relating
to them.
Chapter VII.
INTERVENTION : Covering the subject gener-
ally.
Chapter VIII.
NATIONALITY: Covering citizenship, allegi-
ance, expatriation, naturalization, etc.
TREATIES:
Chapter IX.
Covering the subject generally.
Chapter X.
AMICABLE SETTLEMENT OF DISPUTES:
Covering mediation, arbitration, retorsion, re-
prisals, embargo, pacific blockade, etc.
Chapter XI.
INTERNATIONAL RELATIONS IN WAR:
Covering the subject of war generally, includ-
ing the kinds, causes, and objects of war.
Chapter XII.
EFFECTS OF WAR AS TO PERSONS: Cov-
ering the relations of enemies, noncombatants,
privateers, prisoners of war, and the subjects of
ransom, parole, etc.
Chapter XIII.
EFFECTS OF WAR AS TO PROPERTY:
Covering contributions, requisitions, foraging,
booty, ransom, and other questions in regard
to property.
Chapter XIV.
POSTLIMINIUM: The right and its limitations
defined and explained.
Chapter XV.
MILITARY OCCUPATION: Covering the defi-
nition, extent, and effect of occupation, and the
duties of an occupant.
Chapter XVI.
MEANS OF CARRYING ON HOSTILITIES:
Covering the instruments and means of war,
spies, etc.
Chapter XVII.
ENEMY CHARACTER: Covering enemies gen-
erally, domicile, houses of trade, property and
transfer thereof, etc.
Chapter XVIII.
NON-HOSTILE RELATIONS: Covering com-
.mercia belli, flags of truce, passports, safe-con-
ducts, truces or armistices, cartels, etc.
Chapter XIX.
TERMINATION OF WAR: Covering the meth-
ods of termination, uti possidetis, treaties of
peace, conquest, etc.
Chapter XX.
OF NEUTRALITY IN GENERAL: Neutrality
defined and explained.
Chapter XXI.
THE LAW OF NEUTRALITY BETWEEN BEL-
LIGERENT AND NEUTRAL STATES: Cov-
ering the rights, duties, and liabilities of neutral
states.
Chapter XXII.
CONTRABAND : Covering the subject generally.
Chapter XXIII.
BLOCKADE : Covering the subject generally.
Chapter XXIV.
VISIT AND SEARCH, AND RIGHT OF AN-
GARY: Covering those subjects generally.
APPENDIX.
Giving in full, as in no other single work, the In-
structions for the Government of Armies of the
United States in the Field (Lieber) ; Papers Car-
ried, or that Ought to be Carried, by Vessels in
Evidence of their Nationality; The Declaration
of Paris; The Declaration of St. Petersburg;
The Geneva Convention for the Amelioration of
the Condition of the Sick and Wounded of Ar-
mies in the Field ; The Laws of War on Land,
(Recommended for Adoption by the Institute of
International Law at Oxford, Sept. 9, 1880) ; and
The Brussels Conference.
1 VOLUMH. 500 PAGES. S3. 75, DELIVERED.
WEST PUBLISHING CO., ST. PAUL, MINN.
(10)
f
of
(Bbtrtn (&. Safari), (&. (ttt.,
Professor of the Law of Torts in the Minnesota University Law School.
TABLE OF CONTENTS.
PART I. IN GENERAL.
Chapter I.
GENERAL NATURE OF TORTS : Covering the
law adjective and law substantive, distinctions
between torts and crimes, common-law obliga-
tions and remedies, how and why liability at-
taches for torts, the mental element, connec-
tion as cause, damnum and injuria, common-
law, contract and statutory duties, etc.
Chapter II.
VARIATIONS IN THE NORMAL RIGHT TO
TO SUE: Covering exemptions based on
privilege of actor, as public acts of states, of
judicial and executive officers, etc., and private
acts authorized by statute or common law,
variations based on status or conduct of plain-
tiff, etc.
Chapter HI.
LIABILITY FOR TORTS COMMITTED BY OR
WITH OTHERS: Covering liability by con-
cert in action or joint torts, and liability by
relationship, as husband and wife, landlord
and tenant, master and servant, partners, etc.
Chapter IV.
DISCHARGE AND LIMITATION OF LIABILI-
ITY FOR TORTS: Covering discharge or
limitation by voluntary act of party and by
operation of law.
Chapter V.
REMEDIES: Covering statutory and common-
law remedies, judicial and extrajudicial reme-
dies, damages, etc.
PART II. SPECIFIC WRONGS.
Chapter VI.
WRONGS AFFECTING SAFETY AND FREE-
DOM OF PERSONS: Covering false impris-
onment, assault and battery, and the defenses,
as justification and mitigation.
Chapter VII.
INJURIES IN FAMILY RELATIONS: Cover-
ing the family at common law. master and
servant, parent and child, husband and wife.
Chapter VHI.
WRONGS AFFECTING REPUTATION: Cover-
ing libel, slander, and slander of title, together
with the defenses.
Chapter IX.
MALICIOUS WRONGS: Covering deceit, mali-
cious prosecution, abuse of process, interfer-
ence with contract, conspiracy, etc.
Chapter X.
WRONGS TO POSSESSION AND PROPERTY:
Covering the nature of possession and its ob-
jects, trespass, waste, conversion, etc.
Chapter XI.
NUISANCE: Covering kinds of nuisance, as pub-
lic, private, and mixed, continuing and legal-
ized, parties to proceedings against, remedies,
etc.
Chapter XII.
NEGLIGENCE: Covering the duty to exercise
care, what is commensurate care, common-law,
contract and statutory duties, damages, con-
tributory negligence, etc.
Chapter XIII.
MASTER AND SERVANT: Covering master's
liability to servant for negligence, master's
duty to servant, assumption of risk by serv-
ant, various kinds of risks, fellow servants,
vice principals, etc.
Chapter XIV.
COMMON CARRIERS: Covering the subject
generally.
2 VOLS. 1,328 PAGES. $7.50, DELIVERED.
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(11)
of ....
anb
a-
QX, ui r> AH/iDranri I I 01 A^u- AUTHOR OF BLACK'S LAW DICTIONARY. AND TRE
DY Pi. wMlvlr'tJtiL.L-L. Dl_MOI\, TISES O.M co \ISTITUTIONAL LAW, JUDGMENTS, ET
TABLE OF CONTENTS.
Chapter I.
NATURE AND OFFICE OF INTERPRE-
TATION: Covering definition of terms, ob-
ject of interpretation, rules of construction,
and office of judiciary.
Chapter II.
CONSTRUCTION OF CONSTITUTIONS:
Covering method and rules of construction,
construction as a whole, common law and pre-
vious legislation, retrospective operation, man-
datory and directory provisions, preamble and
titles, extraneous aids, schedule, stare decisis,
etc.
Chapter III.
GENERAL PRINCIPLES OF STATUTORY
CONSTRUCTION: Covering literal and eq-
uitable construction, scope and purpose of the
act, casus omissus, implications in statutes,
meaningless statutes, errors, misprints, sur-
plusage, interpolation of words, etc.
Chapter IV.
STATUTORY CONSTRUCTION; PRE-
SUMPTIONS: Covering presumptions against
exceeding limitations of legislative power, un-
constitutionality, injustice, irrepealable laws,
implied repeal of laws, etc., presumptions as
to public policy, as to jurisdiction of courts,
etc.
Chapter V.
STATUTORY CONSTRUCTION; WORDS
AND PHRASES. Covering technical and
popular meaning of words, commercial and
trade, general and special, relative and qual-
ifying, and permissive and mandatory terms;
conjunctive and disjunctive particles, adopted
and re-enacted statutes, computation of time,
etc.
Chapter VI.
INTRINSIC AIDS IN STATUTORY CON-
STRUCTION: Covering construction as a
whole, context, title, preamble, interpretation
clause, etc.
Chapter VII.
EXTRINSIC AIDS IN STATUTORY CON-
STRUCTION: Covering admissibility of ex-
trinsic aids, statutes in pari materia, con-
temporary history, construction and usage,
journals of legislature, opinions of legislators,
etc.
Chapter VIII.
INTERPRETATION WITH REFERENCE
TO COMMON LAW: Covering statutes af-
firming, supplementing, superseding or in
derogation of, common law.
Chapter IX.
RETROSPECTIVE INTERPRETATIOl
Covering definition, constitutional consider
tions, vested rights, remedial statutes, ar
statutes regulating procedure.
Chapter X.
CONSTRUCTION OF PROVISOS. EXCE1
TIONS, AND SAVING CLAUSES: Co
ering the subject generally.
Chapter XI.
STRICT AND LIBERAL CONSTRUCTIOI
Covering penal and remedial statutes, sta
utes against common right, against fraud
and of limitation, legislative grants, revem
and tax laws, etc.
Chapter XII.
MANDATORY AND DIRECTORY PROV
SIGNS: Definitions and rules covering tl
subject generally.
Chapter XIII.
AMENDATORY AND AMENDED ACT!
Covering construction of amendments and <
statute as amended, identification of act to 1
amended, amendment by way of revision, el
Chapter XIV.
CONSTRUCTION OF CODES AND R]
VISED STATUTES: Covering constructs
as a whole, reference to original statute
change of language, previous judicial constru
tion, etc.
Chapter XV.
DECLARATORY STATUTES: Covering de
nition and construction in general.
Chapter XVI.
THE RULE OF STARE DECISIS AS A1
PLIED TO STATUTORY CONSTRU*
TION: Covering the general principle, r
versal of construction, federal courts follow
ing state decisions, construction of statutes
other states, etc.
Chapter XVII.
INTERPRETATION OF JUDICIAL DEC
SIGNS AND THE DOCTRINE OF PRE<
EDENTS: Cofering the nature of prec
dents; dicta; stare decisis; the force of prec
dents as between different courts; the law <
the case, etc.
1 VOLUME. 5O9 PAGES. $3 75, DELIVERED.
- ST. PAUL, MINIS
WEST PUBLISHING CO.,
C775
|)orn6oo8 Juries.)
f
Q0aifmen(0 anb Carriers*
TABLE OF CONTENTS.
Chapter I.
IN GENERAL: Covering definition and gen-
eral principles common to all bailments;
classification of bailments.
Chapter II.
BAILMENTS FOR SOLE BENEFIT OF
BAILOR: Covering depositum and man-
datum, creation, rights and liabilities of
parties, termination, etc.
Chapter III.
BAILMENTS FOR BAILEE'S SOLE BEN-
EFIT: Commodatum, creation, rights and
liabilities of parties, termination, etc.
Chapter IV.
BAILMENTS FOR MUTUAL BENEFIT-
PLEDGES: Covering definition of pledge,
creation, title of pledger, rights and liabil-
ities of parties before and after default, ter-
mination, etc.
Chapter V.
BAILMENTS FOR MUTUAL BENEFIT-
HIRING: Locatio or hiring defined: estab-
lishment of relation; rights and liabilities
of parties; hiring of things for use: hire of
labor and services; warehousemen; wharf-
ingers; safe-deposit companies; factors, etc.;
termination of relation, etc.
Chapter VI.
INNKEEPERS: Innkeeper defined; who are
guests; commencement of relation; duty
to receive guest; liability for guests' goods;
lien; termination of relation; liability as
ordinary bailee, etc.
Chapter VTI.
CARRIERS OF GOODS: Common carriers,
essential characteristics; when liability at-
taches; discrimination; compensation; lien;
liability as insurers and as ordinary bailees;
carriers of live stock; carriers of baggage;
contracts and notices limiting liability; ter-
mination of liability; connecting carriers.
etc.; post-office department; private car-
riers.
Chapter VIII.
CARRIERS OF PASSENGERS: Who are
passengers; when liability attaches; duty
to accept passengers; furnishing equal ac-
commodations: ticket as evidence of pas-
senger's rights; right to make regulations;
injuries to passengers; contracts limiting
liability; termination of liability; ejection
from vehicle: connecting carriers, and cov-
ering the subject generally.
Chapter IX.
ACTIONS AGAINST CARRIERS: Actions
against carriers of goods and carriers of
passengers: parties: form of action; plead-
ing; evidence; damages.
1 VOLUME. 675 PAGES. 83.75, DELIVERED.
i>orn6oo6
(Bfemenf arg
(gg Wdffer enfon ^mtflj,
Instructor in the Law Department of the University of Michigan,
TABLE OF CONTENTS.
Part I-ELEMENTARY JURISPRUDENCE.
CHAPTER I.
NATURE OP LAW AND THE VARIOUS SYSTEMS:
Moral, divine, municipal, international, mari-
time and martial law.
CHAPTER IT.
GOVERNMENT AND ITS FUNCTIONS: Covering
sovereignty, the state, the constitution, and the
forms and functions of government generally.
CHAPTER HI.
GOVERNMENT IN THE UNITED STATES: Its
general character, sovereignty, distribution of
powers, citizenship, etc.
CHAPTER IV.
THE UNWRITTEN LAW: The Roman, the Canon
and the Common law.
CHAPTER V.
EQUITY: Nature and jurisdiction of equity; max-
ims.
CHAPTER VI.
THE WRITTEN LAW: Relation to unwritten law;
statutory law in general.
CHAPTER VII.
THE AUTHORITIES AND THEIR INTERPRETA-
TION: The rank of authorities, rules of inter-
pretation, statutory construction, etc.
CHAPTER VHI.
PERSONS AND PERSONAL RIGHTS: Legal
rights, wrongs and remedies, rights in rem and
in personam, status, personal security, liberty,
property, constitutional guaranties, etc.
CHAPTER IX.
PROPERTY: Covering, ownership and possession;
the Feudal system; corporeal and incorporeal,
real and personal, property; fixtures, etc.
CHAPTER X.
CLASSIFICATION OF THE LAW: Substantive
and adjective, public and private law, etc.
Part II THE SUBSTANTIVE LAW.
CHAPTER XI.
CONSTITUTIONAL AND ADMINISTRATIVE LAW:
Written and unwritten constitutions, essentials
and construction of constitutions; administra-
tive law, etc.
CHAPTER XII.
CRIMINAL LAW: Covering its general nature,
criminal capacity, classification of crimes, pun-
ishment, etc.
CHAPTER XIII.
THE LAW OF DOMESTIC RELATIONS: Cover-
ing marriage and its incidents, parent and child,
guardian and ward, master and servant, etc.
CHAPTER XIV.
CORPOREAL AND INCORPOREAL HEREDITA-
MENTS: Covering the subject generally.
CHAPTER XV.
ESTATES IN REAL PROPERTY: Classification,
estates In possession and in expectancy; free-
holds and estates less than freehold; estates in
severally, in joint tenancy and in common; ab-
solute and conditional, legal and equitable es-
tates ; etc.
CHAPTER XVI.
TITLES TO REAL PROPERTY: Covering title by
descent and by purchase, classification and
forms of deeds, etc.
CHAPTER XVTI.
PERSONAL PROPERTY: Real and personal chat-
tels, ownership of personal property, acquisition
of title, etc.
CHAPTER XVin.
SUCCESSION AFTER DEATH: Testate and intes-
tate succession, escheat, executors and adminis-
trators, etc.
CHAPTER XIX.
CONTRACTS: Definition, validity and classification
of contracts, quasi contracts, etc.
CHAPTER XX.
SPECIAL CONTRACTS: Covering contracts of
sale, bailments, negotiable contracts, suretyship,
insurance, etc.
CHAPTER XXL
AGENCY: Covering the subject generally.
CHAPTER XXII.
COMMERCIAL ASSOCIATIONS: Covering part-
nerships, joint stock companies, voluntary asso-
ciations, corporations, etc.
CHAPTER XXIIL
TORTS: Covering the nature and elements of torts,
proximate and remote cause and specific torts.
Part III THE ADJECTIVE LAW.
CHAPTER XXIV.
REMEDIES: Extralegal and legal, penal and civil,
common law and equitable, ordinary and extraor-
dinary remedies.
CHAPTER XXV.
COURTS AND THEIR JURISDICTION: Covering
the subject generally.
CHAPTER XXVI.
PROCEDURE: In general; outlines of common
law, equity, code, and criminal procedure.
CHAPTER XXVII.
TRIALS: Early forms, trial procedure, evidence.
1 VOL. 367 PAGES. $3.75, DELIVERED.
WEST PUBLISHING CO., ST. PAUL, MINN.
C1112 U4)
Aeries.)
of
Of
Author of "Bailments and Carriers. 1
TABLE OF CONTENTS.
CHAPTER I.
DEFINITIONS AND GENERAL PRINCIPLES:
Definition, nature and theory of damages;
wrong and damage; analysis of legal wrongs;
classification of damages.
CHAPTER H,
NOMINAL DAMAGES: Definition and general na-
ture.
CHAPTER m.
COMPENSATORY DAMAGES: Definition; proxi-
mate and remote consequences; direct and con-
sequential losses; avoidable consequences; cer-
tainty of damages; profits; entirety of demand;
past and future losses; elements of compensa-
tion; aggravation and mitigation of damages;
reduction of loss; injuries to limited Interests,
etc.
CHAPTER IV.
BONDS, LIQUIDATED DAMAGES AND ALTERNA-
TIVE CONTRACTS: Covering the subject gen-
erally.
CHAPTER V.
INTEREST: Definition: as a debt and as damages;
interest on liquidated and unliquidated de-
mands; on overdue paper, contract and stat-
ute rate; compound Interest; etc.
CHAPTER VI.
VALUE: Definition; how estimated; market value;
pretium affectionis; value peculiar to owner;
time and place of assessment; highest Interme-
diate value ; etc.
CHAPTER VII.
EXEMPLARY DAMAGES: In general; when re-
coverable; liability of principal for act of agent;
etc.
CHAPTER VTII.
PLEADING AND PRACTICE: Allegation of dam-
age, the ad damnum, form of statement, prov-
ince of court and jury, etc.
CHAPTER IX.
BREACH OP CONTRACTS FOR SALE OP GOODS:
Damages In action by seller for non-acceptance
and non-payment; damages in action by buyer
for non-delivery, breach of warranty, and as for
conversion.
CHAPTER X.
DAMAGES IN ACTIONS AGAINST CARRIER:
Carriers of goods, refusal to transport, non-
delivery, Injury In transit, delay, consequential
damages; carriers of passengers, injuries to
passenger exemplary damages, mental suffering,
delay, wrongful ejection, etc.
CHAPTER XI.
DAMAGES IN ACTIONS AGAINST TELEGRAPH
COMPANIES: Actions by sender and by receiv-
er; proximate and certain, remote and specula-
tive damages; notice of purpose and importance
' of message; cipher messages; avoidable conse-
quences; exemplary damages; etc.
CHAPTER XII.
DAMAGES FOR DEATH BY WRONGFUL ACT:
Pecuniary losses; mental suffering: exemnlary
damages; Injury to deceased; medical and fu-
neral expenses; meaning of pecuniary, care and
support, prospective gilts and inheritances; in-
terest as damages; discretion of jury; nominal
damages, etc.
CHAPTER XIII.
WRONGS AFFECTING REAL PROPERTY: Dam-
ages for detention of real property; trespass;
nuisance; waste; contract to sell real property,
breach by vendor or vendee; breach of cove-
nants, etc.
CHAPTER XIV.
BREACH OF MARRIAGE PROMISE: In general,
compensatory damages, exemplary damages, etc.
1 VOL. 476 PAGES. $3.75, DELIVERED.
WEST PUBLISHING CO., St. Paul, Minn.
Cllll (15)
fjornfiooft
of
Saw of (Keaf
(Bdrf .
TABLE OF CONTENTS.
Chapter I.
WHAT IS REAL PROPERTY: Real and
personal property, fixtures, equitable conver-
sion, personal interests in land.
Chapter II.
TENURE AND SEISIN.
Chapter III.
ESTATES AS TO QUANTITY PEE SIM-
PLE: Classification of estates, freehold,
fee-simple, creation, right of user and aliena-
tion.
Chapter IV.
ESTATES AS TO QUANTITY (Continued)-
ESTATES TAIL: Classes, origin, crea-
tion, incidents, duration, tenant in tail aft-
er possibility of issue extinct, estates tail in
the United States, quasi entail.
Chapter V.
ESTATES AS TO QUANTITY (Continued
CONVENTIONAL LIFE ESTATES:
Life estates, creation, conventional life es-
' tates, incidents, estates per autre vie.
Chapter VI.
ESTATES AS TO QUANTITY (Continued)
LEGAL LIFE ESTATES: Estate during
coverture, curtesy, dower, homestead, fed-
eral homestead act.
Chapter VII.
ESTATES AS TO QUANTITY (Continued)
LESS THAN FREEHOLD: Estates for
years, letting land on shares, tenancies at
will, tenancies from year to year, letting of
lodgings, tenancies at sufferance, licenses.
Chapter VIII.
ESTATES AS TO 'QUALITY ON CONDI-
TIONON LIMITATION: Estates on
condition, estates on limitation, base fees.
Chapter IX.
ESTATES AS TO QUALITY (Continued)-
MORTGAGES: Parties, nature, form,
rights and liabilities of mortgagor and mort-
gagee, assignment of the equity of redemp-
tion, -assignment of the mortgage, priority
of mortgages and other conveyances, regis-
tration, discharge of a mortgage.
Chapter X.
EQUITABLE ESTATES: Statute of nsef
classification of trusts, express, implied
resulting, constructive, incidents of equita
ble estates, charitable trusts.
Chapter XI.
ESTATES AS TO TIME OF ENJOYMEN r
FUTURE ESTATES: Reversions, poss:
bilities of reverter, remainders, rule in She!
ley's Case, future uses, springing uses
shifting uses, executory devises, incident
of future estates.
Chapter XII.
ESTATES AS TO NUMBER OF OWNER!
JOINT ESTATES: Joint tenancies, ter
ancles in common, estates in coparcenarj
estates in entirety, estates in partnership
incidents of joint estates, partition.
Chapter XIII.
INCORPOREAL HEREDITAMENTS
Easements, creation, classification, inci
dents, destruction, rights of way, highways
light and air, lateral and subjacent sup
port, party walls, easements in water, prof
its a preiidre, rents, franchises.
Chapter XIV.
LEGAL CAPACITY TO HOLD AND CON
VEY REALTY: Infants, persons of un
sound mind, married women, aliens, corpc
rations.
Chapter XV.
RESTRAINTS ON ALIENATION: Re
straints imposed by law, restraints in favo
of creditors, restraints imposed in creatio;
of estate.
Chapter XVI.
TITLE: Acquisition of title by state and pri
vate persons, grant from state, conveyan
ces, common-law conveyances, conveyance
under statute of uses, modern statutory con
veyances, registered titles, requisites o
deeds; covenants for title, seisin, agains
incumbrances, warranty, further assurance
estoppel, adverse possession, accretion, de
vise, descent, judicial process; conveyance
under licenses, under duress; tax titles, em
ineut domain.
1 VOL. 589 PAGES. $3.75, DELIVERED.
WEST PUBLISHING CO., St. Paul, Minn.
C1191a d6)
Aeries.)
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atx> of (persona anb omcetic Q&cfaftoner,
n$g TEaifer C.
TABLE OF
PART I.
HUSBAND AND WIFE.
Chapter I.
MARRIAGE: Covering definition and essen-
tials; capacity of parties; reality of con-
sent; formalities in celebration; annul-
ment and avoidance; validating acts; con-
flict of laws, etc.
Chapter II.
PERSONS OF THE SPOUSES AS AP-
FECTED BY COVERTURE: Covering
rights inter se; crimes and torts of married
women; crimes and torts as between hus-
band and wife; torts against married wo-
men; actions for alienation of affections;
crim. con., etc.
Chapter III.
RIGHTS IN PROPERTY AS AFFECTED
BY COVERTURE: Covering wife's earn-
ings; wife's choses in action and in posses-
sion; wife's chattels real; administration
of wife's estate; equitable and statutory
separate estate; community property; cur-
tesy; dower; estates by the entirety, etc.
Chapter IV.
CONTRACTS, CONVEYANCES, ETC.,
AND QUASI-CONTRACTUAL OBLI-
GATIONS: Covering, inter alia, husband's
liauility lor wife's necessaries, antenuptial
debts, and funeral expenses; wife as a sole
trader; wife as husband's agent; convey-
ances, sales, and gifts by the wife, etc.
Chapter V.
WIFE'S EQUITABLE AND STATUTORY
SEPARATE ESTATE: Covering their
nature; jus disponendi; power to charge by
contract, etc.
Chapter VI.
ANTENUPTIAL AND POSTNUPTIAL
SETTLEMENTS: Covering the subject
generally, including marriage as a consid-
eration; the statute of frauds; validity
against creditors and purchasers, etc.
Chapter VII.
SEPARATION AND DIVORCE: Covering
agreements for separation; jurisdiction to
grant divorce; grounds for divorce; de-
fenses in actions for divorce; legislative di-
vorce, etc.
PART II.
PARENT AND CHILD.
Chapter VIII.
LEGITIMACY. ILLEGITIMACY, AND
ADOPTION: Covering legitimacy of chil-
dren; adoption of children; status of illegiti-
mate children.
CONTENTS.
Chapter IX.
DUTIES AND LIABILITIES OF PAR-
ENTS: Maintenance, protection, and edu-
cation of child; allowance out of child's
estate; child as parent's agent; parent's lia-
bility for crimes and torts of child, etc.
Chapter X.
RIGHTS OF PARENTS AND OF CHIL-
DREN: Right to custody; service and
earnings of child; correction of child;
emancipation of children; action by parent
for injuries to child; gifts, contracts, and
conveyances between: advancements; duty
to support parent; domicile of child, etc.
PART III.
GUARDIAN AND WARD.
Chapter XI.
GUARDIANS DEFINED SELECTION
AND APPOINTMENT: Covering natural
guardians; testamentary guardians; statu-
tory guardians; guardians by estoppel;
guardians of insane persons; guardians ad
litem, etc.
Chapter XII.
RIGHTS, DUTIES, AND LIABILITIES OF
GUARDIANS: Right to custody and serv-
ices of ward; maintenance of ward; change
of ward's domicile; management of ward's
esta.te; foreign guardians; inventory and
accounts; compensation of guardian; trans-
actions between guardian and ward, etc.
Chapter XIII.
TERMINATION OF GUARDIANSHIP
ENFORCING GUARDIAN'S LIABILI-
TY: Covering the subject generally.
PART IV.
INFANTS, PERSONS NON COMPOTES
MENTIS, AND ALIENS.
Chapter XIV.
INFANTS: Covering contracts of infants, in-
cluding ratification and disaffirmance: lia-
bilities for necessaries, etc.; capacity to
hold office, to make a will, and as witness-
es; liability for torts and crimes; infants
as parties to actions, etc.
Chapter XV.
PERSONS NON COMPOTES MENTIS
AND ALIENS: Covering insane and
drunken persons, their contracts, their lia-
bility for torts and crimes and testament-
ary capacity, etc.
PART V.
MASTER AND SERVANT.
Chapter XVI.
CREATION AND TERMINATION OF RE-
LATION: Remedies for breach of con-
tract; rights and duties and liabilities inter
se and as to third persons, etc.
C1243
1 VOLUME. 589 PAGES. $3.75, DELIVERED.
WEST PUBLISHING COMPANY, ST. PAUL, MINN.
(17)
(3n *0e gornfiooft
f\ treatise on
of.
By Simon Greenkaf groswell.
Author of "Electricity,"
"Patent Cases," etc.
TABLE OF CONTENTS.
Part I. DEFINITIONS AND DIVISION OF SUBJECT.
Chapter I.
DEFINITIONS AND DIVISION OF SUBJECT: Ex-
ecutors and administrators defined; analysis of
book.
Part II. APPOINTMENT AND QUALIFICATIONS.
Chapter II.
APPOINTMENT IN COURT: Necessity of adminis-
tration; necessity of appointment by court; ju-
risdiction; conclusiveness of decrees of probate
courts, etc.
Chapter III.
PLACE AND TIME OF APPOINTMENT AND REQ-
UISITES THEREFOR: Place of appointment;
property necessary to give jurisdiction; time limit
for application.
Chapter IV.
WHO MAY CLAIM APPOINTMENT AS EXECU-
TOR: Designation in will; appointment by dele-
gation; executor of executor; non-assignability
of office.
Chapter V.
WHO MAY CLAIM THE RIGHT TO ADMINISTER:
Principle which governs the right; order of pre-
cedence; creditors; preferences among kindred
etc.
Chapter VI.
DISQUALIFICATIONS FOR THE OFFICE OF EX-
ECUTOR OR ADMINISTRATOR: Infants, mar-
ried women, idiots, lunatics, convicts, corpora-
tions; poverty and insolvency: absolute and dis-
cretionary incompetency, etc.
Chapter VII.
ACCEPTANCE OR RENUNCIATION: Express or
implied renunciation.
Chapter VIII.
PROCEEDINGS FOR APPOINTMENT OF EXECU-
TORS AND ADMINISTRATORS: In general.
Chapter IX.
SPECIAL KINDS OF ADMINISTRATIONS: Admin-
istration cum testamento annexo; de bonis non;
during minority; pendente lite; public adminis-
trator; executor de son tort, etc.
Chapter X.
FOREIGN AND INTERSTATE ADMINISTRATION:
Validity of foreign wills; territorial limit of va-
lidity of letters; principal and ancillary adminis-
tration; conflict of laws; comity, etc.
Chapter XI.
JOINT EXECUTORS AND ADMINISTRATORS: Na-
ture of estate; rights, powers and liabilities; rem-
edies between, etc.
Chapter XII.
ADMINISTRATION BONDS: Covering the subject
generally.
Part III. POWERS AND DUTIES.
Chapter XIII.
INVENTORY APPRAISEMENT NOTICE OF AI
POINTMENT: Covering the subject generally.
Chapter XIV.
ASSETS OF THE ESTATE: What are assets; flj
tures; emblements; animals; ownership at time c
death, etc.
Chapter XV.
MANAGEMENT OF THE ESTATE: Rights and lie
bilities of executors or administrators; collectio
and investment of assets, taxation, etc.
Chapter XVI.
SALES AND CONVEYANCES OF PERSONAL Ol
REAL ASSETS: Covering sales in general, sale
of land to pay debts, power to mortgage, etc.
Chapter XVII.
PAYMENT OF DEBTS AND ALLOWANCES IN
SOLVENT ESTATES: Covering priority of debt;
widow's allowance, expenses of funeral and las
illness, costs of administration; presentation an
allowance of claims, insolvent estates, etc.
Chapter XVIII.
PAYMENT OF LEGACIES: Legacies subordinate t
debts; ademption and abatement of legacies
priority between legacies and contingent, futur
or unknown debts; payment of legacies, interest
etc.
Chapter XIX.
DISTRIBUTION OF INTESTATE ESTATES: Ordei
time and mode of distribution; rights of husband
widow and next of kin, right of presentation
payment of distributive share, etc.
Chapter XX.
ADMINISTRATION ACCOUNTS: Time and manne
of accounting, charges and allowances In account
commissions and compensation, etc.
Part IV. TERMINATION OF OFFICE.
Chapter XXI.
REVOCATION OF LETTERS REMOVAL RESIQ
NATION: Covering the subject generally.
Part V. REMEDIES.
Chapter XXII.
ACTIONS BY EXECUTORS AND ADMINISTRA
TORS: Power to sue before probate or grant o
letters; survival of actions; actions in persona
and representative capacity, etc.
Chapter XXIII.
ACTIONS AGAINST EXECUTORS AND ADMIN
ISTRATORS: Survival of actions; particular lia
bilities: attachment and garnishment; judgments
executions and other proceedings; order of liabil
Ity of assets; suits on bonds, etc.
Chapter XXIV.
STATUTE OF LIMITATIONS SET-OFF: Genera
and special statute of limitations, set-off, etc.
Chapter XXV.
EVIDENCE AND COSTS: Covering the subjeoi
generally.
i Vol. 696 Pages.
$3-75. Net, Delivered.
C1395
Okst Publishing Co., St. Paul, Minn,
(18)
Corpotaftotw*
By Wn. L. CLARK, Jr.,
Author of "Criminal Law," "Criminal Procedure," and "Contracts."
TABLE OF CONTENTS.
Chapter I.
OF THE NATURE OF A CORPORATION:
Definition and creation; limited powers; attri-
butes and incidents; corporation as a person,
citizen, etc. ; kinds of corporations, etc.
Chapter II.
CREATION AND CITIZENSHIP OP CORPO-
RATIONS: Covering the subject generally, in-
cluding power to create; general and special
laws; ratification of claim to corporate exist-
ence; agreement between corporation and state
acceptance of charter; agreement between
corporators and corporation ; purpose of incorpo-
ration; corporate name, residence, and citizen-
ship of corporation ; extension of charter ; proof
of corporate existence, etc.
Chapter III.
EFFECT OF IRREGULAR INCORPORATION:
Corporations de facto ; estoppel to deny corpo-
rate existence; liability of stockholders as part-
ners.
Chapter IV.
RELATION BETWEEN CORPORATION AND
ITS PROMOTERS: Liability for expenses and
services of promoters; liability on contract by
promoters; liability of promoters to corporation
and stockholders, etc.
Chapter V.
POWERS AND LIABILITIES OF CORPORA-
TIONS: Express and implied powers; con-
struction of charter; power to hold realty; con-
tracts and conveyances, etc.
Chapter VI.
POWERS AND LIABILITIES OF CORPORA-
TIONS (Continued) : The doctrine of ultra vires.
Chapter VII.
POWERS AND LIABILITIES OF CORPORA-
TIONS (Continued): Responsibility for torts
and crimes ; contempt of court.
Chapter VIII.
THE CORPORATION AND THE STATE:
Charter as a contract; police power of the state ;
power of eminent domain; repeal and amend-
ment of charter; taxation of corporation.
Chapter IX.
DISSOLUTION OF CORPORATIONS: How ef-
fected; equity jurisdiction; effect of dissolu-
tion, etc.
Chapter X.
MEMBERSHIP IN CORPORATIONS: Capital
stock and capital; nature of corporate shares;
certificates of stock ; subscriptions to stock; re-
lease and discharge of subscriber, etc., covering
the subject generally.
Chapter XI.
MEMBERSHIP IN CORPORATIONS (Contin-
ued) : Right to inspect books and papers; right
to vote; profits and dividends; increase of cap-
ital; preferred stock ; watered and bonus stock;
action by stockholders for injuries to corpora-
tion ; expulsion of members, etc.
Chapter XII.
MEMBERSHIP IN CORPORATIONS (Contin-
ued) : Covering transfer of shares.
Chapter XIII.
MANAGEMENT OF CORPORATIONS OFFI-
CERS AND AGENTS: Powers of majority of
stockholders; by-laws; stockholders' meetings;
election and appointment of officers and agents:
powers and liabilities of officers and agents; re-
moval of officers and agents, etc., covering the
subject generally.
Chapter XIV.
RIGHTS AND REMEDIES OF CREDITORS:
Relation between creditors and the corporation,
covering, inter alia, property subject to execu-
tion ; assets as a trust fund for creditors; fraud-
ulent conveyances; assignment for benefit of
creditors; preferences; dissolution, injunction,
and receivers; relation between creditors and
stockholders, covering, inter alia, statutory lia-
bility of stockholders; contribution between
stockholders, etc. ; relation between creditors
and officers, covering preferences to officers who
are creditors ; statutory liability of officers.
Chapter XV.
FOREIGN CORPORATIONS: Covering the sub-
ject generally.
APPENDIX.
The logical conception of a corporation.
i Volume. 740 pages. $3.75, net, delivered.
West Publishing Co,, St. Paul, Minn.
C1479 (19)
JgornBooft
>f
of
djeorae.
**
TABLE OF CONTENTS.
Chapter I.
DEFINITION AND ESTABLISHMENT OF
RELATION: What constitutes a partner-
ship; tests of intention; sharing prqfits ; pro-
moters of corporations; defective corpora-
tion; delectus personarum; subpartnerships;
holding out, etc.
Chapter II.
KINDS OF PARTNERSHIPS AND PART-
. NERS: Classification of partnerships and
partners; universal, general, and special part-
nerships; limited partnerships; joint-stock
companies; mining partnerships; trading
and nontrading partnerships, etc.
Chapter III.
CHARACTERISTIC FEATURES OF
PARTNERSHIPS: Legal and mercantile
view of a firm; partnership name; partner-
ship property; partnership capital; shares in
partnerships, etc.
Chapter IV.
IMPLIED RIGHTS AND LIABILITIES IN-
TER SE: Participation in management;
rights and powers of majority; duty to ex-
ercise care, skill, and good faith; right to
compete with firm; compensation for serv-
ices; interest on balances; partner's lien;
division of profits, etc.
Chapter V.
ARTICLES OF PARTNERSHIP: Purpose
and effect; rules of construction; usual
clauses in articles, etc.; covering the subject
generally.
Chapter VI.
RIGHTS AND LIABILITIES AS TO
THIRD PERSONS: Express and implied
authority of partner to bind firm; particu-
lar powers; liability of partners to third
persons; incoming partners; assumption of
debts; rights in firm and separate property.
etc.
Chapter VII.
ACTIONS BETWEEN PARTNERS: Actio
on partnership claim or liability, at law, i
equity, or under the code; actions bet wee
firms with a common member; actions q
individual . obligations; equitable actions i
general; accounting and dissolution; sp<
cific performance; injunction; receivers, eti
Chapter VIII.
ACTIONS BETWEEN PARTNERS AN]
THIRD PERSONS: Parties in actior
by and against partners; effect of changt
in firm; disqualification of one partner 1
sue; action in firm name, etc.
Chapter IX.
DISSOLUTION: Causes of dissolution; par
nerships for a definite and indefinite tim<
causes subject to stipulation ; causes not sul
ject to stipulation; causes for which a con:
will decree a dissolution; consequences <
dissolution as to third persons and as 1
partners.
Chapter X.
LIMITED PARTNERSHIPS: Covering tl
subject exhaustively, including, inter ali
definition and establishment of relatioi
general and special members; certificat
contribution of general and special partner
name; sign; rights and liabilities; wit]
drawal, alteration, and interference; insc
vency; termination of relation; change fro
limited to general liability; actions, etc.
Chapter XI.
JOINT-STOCK COMPANIES: Definitional
nature; transfer of shares; powers of mer
bers and officers; rights and liabilities; a
tions, etc.
I Volume, 616 pages. $3.75, net, delivered.
West Publishing Co,, St. Paul, Minn.
C1471 (20)
($ 1E)anb6oo8 of
genj. 3.
Author of " Shipman's Common-Law Pleading."
TABLE OF CONTENTS.
Chapter I.
EQUITY PLEADING IN GENERAL: Cov-
ering nature and scope of pleadings in eq-
uity
Chapter U.
PARTIES: Giving general rules, and covering
classification of parties as necessary, proper
but not indispensable, formal, and parties
with separable interests; parties complain-
ant and respondent; joinder, etc.
Chapter III.
PROCEEDINGS IN AN EQUITABLE
SUIT: Indicating the steps usually taken
and the method of procedure, as the bill,
appearance, proceedings on default; the
modes of defense, by disclaimer, demurrer,
plea, or answer; the replication; interlocu-
tory proceedings, as amendment, injunc-
tions, production of documents, interven-
tion; the evidence, hearing, and decree; the
correction, reversal, or enforcement of de-
crees, etc.
Chapter IV.
BILLS IN EQUITY: Covering definition and
classification, and discussing original bills,
and bills not original, with a summary of
the general rules covering the bill, etc.
Chapter V.
THE DISCLAIMER: Definition, nature, and
use.
Chapter VI.
DEMURRER: Definition; form of demurrer,
and grounds therefor; orders sustaining or
overruling demurrer, etc.
Chapter VII.
THE PLEA: Definition, nature, and office of
pleas, grounds for pleas, their form, support-
ing answers, etc.
Chapter VIII.
THE ANSWER: Nature and office, substance
and effect, of the answer, and the character-
istics thereof.
Chapter T3E,
THE REPLICATION.
644 PAGES. $3.75, NET, DELIVERED.
WEST PUBLISHING CO., St. Paul, Minn.
C1630 ( 21 >
^etiee.)
of
of
Author of "Common-Law Pleading," etc.
TABLE OF CONTENTS.
CHAPTER I.
INTRODUCTORY : Definitions; origin, place
and function of the law of evidence, etc.
CHAPTER II.
JUDICIAL NOTICE: The doctrine in general;
facts which may or must be noticed.
CHAPTER III.
QUESTIONS OF LAW AND QUESTIONS
OF FACT: Definitions; province of court
and jury.
CHAPTER IV.
BURDEN OF PROOF: Burden of proof never
shifts; burden of proceeding may shift; ver-
dict, etc.
CHAPTER V.
PRESUMPTIONS: Presumptions as rules of
law; prima facie, conclusive, spurious, and
conflicting presumptions.
CHAPTER VI.
ADMISSIONS: Direct and indirect admissions;
admissibility; civil and criminal cases; ef-
fect of admission, etc.
CHAPTER VII.
CONFESSIONS: Defined; voluntary or under
influence; may be explained; evidence there-
from, etc.
CHAPTER VIII.
MATTERS EXCLUDED AS UNIMPOR-
TANT, OR AS MISLEADING, THOUGH
LOGICALLY RELEVANT: Logical and le-
gal relevancy, rule excluding; classification
of matter; proof of diverse matters consid-
ered.
CHAPTER IX.
CHARACTER: General rule; when material;
how proved, etc.
CHAPTER X.
OPINION EVIDENCE: Matter of opinion dis-
tinguished from matter of fact; general rule;
exceptions: matters forming subject of ex-
pert opinion, etc.
CHAPTER XL
HEARSAY: General rule; exceptions; real
and appaient; classes of statements admit-
ted because of the difficulty of other proof.
CHAPTER XII.
WITNESSES: Rules excluding witnesses; per-
sons excluded; privilege distinguished from
disqualification; privileged persons.
. CHAPTER XIII.
EXAMINATION OF WITNESSES: Ordinary
method: refreshing memory; direct and
cross examination; leading questions; im-
peaching witness, etc.
CHAPTER XIV.
WRITINGS: Brst evidence rule; production of
documents; authentication of documents;
proof of handwriting; evidence affecting the
contents of documents, etc.
CHAPTER XV.
DEMURRERS TO EVIDENCE: Definition;
when joinder compelled; final form, etc.
1 vol. 480 pages. $3.75, net, delivered.
WEST PUBLISHING CO., St. Paul, Minn.
C1887 (22)
f
QSg (Jttorfon Q&arrot6, @-. Q&
TABLE OF CONTENTS.
Chapter I.
DEFINITION AND ESSENTIAL ELE-
MENTS : Considering also proximate
cause ; efficient, intervening, or co-operating
cause, etc.
Chapter II.
CONTRIBUTORY NEGLIGENCE: Defini-
tion and general rule ; degree of care ; as-
sumption of risk and legal status of plain-
tiff ; plaintiff's negligence ; negligence of
third persons ; imputed negligence ; phys-
ical condition as an element ; evidence,
pleading, and questions of fact.
Chapter III.
LIABILITY OF MASTER TO SERVANT:
Duty of master, as to appliances, selecting
servants, rules, etc. ; limitation of master's
duty ; ordinary risks, known dangers, fel-
low servants ; concurrent and contributory
negligence.
Chapter IV.
LIABILITY OF MASTER TO THIRD PER-
SONS : Relationship ; independent con-
tractor ; willful torts of servants, and inde-
pendent torts.
Chapter V.
COMMON CARRIERS OF PASSENGERS:
The relation of passenger and carrier ; ter-
mination of relation ; who are passengers ;
the contract, ticket, compensation, etc.
Chapter VI.
CARRIERS OF GOODS: Definition; liabili-
ty for loss or damage : liability for delay ;
contracts limiting liability in special states ;
limiting time and manner of making claims ;
construction of limiting contracts ; actual
notice ; special classes of goods, as live
stock and baggage ; beginning and termina-
tion of liability ; excuses for nondelivery.
Chapter VH.
OCCUPATION AND USE OF LAND AND
WATER : Duties, general rule : lateral
support ; dangerous premises ; landlord and
tenant, and condition of rented premises ;
water courses ; dams ; obstruction of navi-
gable streams, etc.
Chapter VIII.
DANGEROUS INSTRUMENTALITIES :
Railroads ; degree of care exacted ; signals ;
care required of persons ; collisions with
persons and with animals ; fires ; inten-
tional, accidental, and railroad fires ; ani-
mals ; communicating disease ; firearms, ex-
plosives, poisons, etc.
Chapter IX.
NEGLIGENCE OF ATTORNEYS. PHYSI-
CIANS, AND PUBLIC OFFICERS:
Negligence of attorneys ; damage essential
to liability ; negligence of physicians ; bur-
den of proof, evidence, pleading, etc. ; negli-
gence of public and governmental officers,
ministerial officers, sheriffs and constables,
notaries public, clerks of court, and registers
of deeds.
Chapter X.
DEATH BY WRONGFUL ACT : Right of ac-
tion ; instantaneous death, proximate cause
of death, beneficiaries ; damages ; pleading
and evidence ; limitation of commencement
of action.
Chapter XI.
NEGLIGENCE OF MUNICIPAL CORPO-
RATIONS : Public and private corpora-
tions ; right of action ; liability for inju-
ries ; alteration of grades ; acts of officers
or agents ; acts ultra vires ; judicial or leg-
islative duties ; conflagrations and destruc-
tion by mobs ; public health and sanitation ;
quasi municipal corporations.
1 VOL. 634 PAGES. $3.75, DELIVERED.
WEST PUBLISHING CO., St. Paul, Minn.
.23)
f
Editor 3d Edition Collier on Bankruptcy, Co-Editor American Bankruptcy Reports,
Eaton and Greene's Negotiable Instruments Law, etc.
TABLE OF CONTENTS.
ORIGIN AND HISTORY: Showing distinc-
tion between law and equity, equity juris-
diction in the United States, etc,
GENERAL, PRINCIPLES GOVERNING
THE EXERCISE OF EQUITY JURIS-
DICTION: Covering adequate remedy at
law, multiplicity of suits, etc.
MAXIMS: With a separate discussion of
each.
PENALTIES AND FORFEITURES: Cov-
ering rules governing the determination as
to liquidated damages or penalty, statutory
penalties and forfeitures, etc.
PRIORITIES AND NOTICE: Covering
equal and superior equities, notice, etc.
BONA FIDE PURCHASERS WITHOUT
NOTICE: The doctrine and its applica-
tion.
EQUITABLE ESTOPPEL: Essential ele-
ments, operation of estoppel, etc.
ELECTION: The doctrine and its applica-
tion; ascertainment of values, etc.
SATISFACTION AND PERFORMANCE:
Satisfaction of debts, of legacies, of por-
tions, etc.; parol or extrinsic evidence, etc.
CONVERSION AND RECONVERSION:
The doctrine; effect of conversion; total or
partial failure of purposes.
ACCIDENT as a ground of equitable relief.
MISTAKE as a ground of equitable relief.
FRAUD as a ground of equitable relief; ac-
tual and constructive fraud, etc.
EQUITABLE PROPERTY: Trusts gener-
ally; express trusts, etc.
Resulting and con-
IMPLIED TRUSTS:
structive trusts, etc.
TOWERS, DUTIES, AND LIABILITIES
OF TRUSTEES: Acceptance; breach of
trust; accounts, etc.
MORTGAGES: The common-law and equi-
table doctrines as to mortgages and pledges.
EQUITABLE LIENS: Arising from consid-
erations of justice, from charges by will or
deed, etc.
ASSIGNMENTS: Of choses in action, pos-
sibilities and expectancies, etc.
REMEDIES SEEKING PECUNIARY RE-
LIEF: Contribution, exoneration, defense,
etc.
SPECIFIC PERFORMANCE: Contracts
for same, defenses, variance, etc.
INJUNCTION: Classification, with discus-
sion.
PARTITION, DOWER, AND ESTABLISH-
MENT OF BOUNDARIES: Jurisdiction,
procedure, etc.
REFORMATION, CANCELLATION, AND
CLOUD ON TITLE: Parties, evidence,
statute of frauds, etc.
ANCILLARY REMEDIES: Rules respect-
ing discovery, examination of witnesses, in-
terpleader, receivers, etc.
1 volume, 734 pages. $3.75 delivered.
WEST PUBLISHING CO., St. Paul, Minn.
C3661
(24)
f
(gg (goBerf (St.
, (ttt. (&.
TABLE OF CONTENTS.
The Origin and History of the Admiralty, and
its Extent in the United States.
Admiralty Jurisdiction as Governed by the Sub-
ject Matter.
General Average and Marine Insurance.
Bottomry and Respondentia ; and Liens for
Supplies, Repairs, and Other Necessaries.
Stevedores' Contracts, Canal Tolls, and Tow-
age Contracts.
Salvage.
Contracts of Affreightment and Charter Parties.
Water Carriage as Affected by the Barter Act
of February 13, 1S93.
Admiralty Jurisdiction in Matters of Tort.
The Right of Action in Admiralty for Injuries
Resulting Fatally.
Torts to the Property, and Herein of Collision.
The Steering and Sailing Rules.
Rules as to Narrow Channels. Special Circum-
stances, and General Precautions.
Damages in Collision Cases.
\ r essel Ownership Independent of the Limited
Liability Act.
Rights and Liabilities of Owners as Affected by
the Limited Liability Act.
The Relative Priorities of Maritime Claims.
A Summary of Pleading and Practice.
APPENDIX.
1. The Mariner's Compass.
2. Statutes Regulating Navigation, Including:
(1) The International Kules.
(2) The Rules for Coast and Connecting
Inland Waters.
(3) The Dividing Lines between the High
Seas and Coast Waters.
(4) The Lake Rules.
(n) The Mississippi Valley Rules.
(G) The Act of March 3, 1899, as to Ob-
structing Channels.
3. The ( Limited Liability Acts. Including:
(1) The Act of March 3, 1831, as Amended.
(2) The Act of June 26, 1SS4.
4. Section 941, Rev. St., as Amended, Regulat-
ing Bonding of Vessels.
5. Statutes Regulating Evidence in the Federal
Courts.
6. Suits in Forma Pauperis.
7. The Admiralty Rules of Practice.
1 volume, 503 Pages. S3 75 delivered.
WEST PUBLISHING CO., St. Paul, Minn
CE662
(25)
of
o
f (prittcipaf
Author of Death by Wrongful Act, Law of Sales, etc,
TABLE OF CONTENTS.
Part I. IN GENERAL.
Chap.
I. Introductory Definitions.
II. Creation of the Relation of Principal and Agent Appointment
III. Same (continued) Ratification.
IV. What Acts Can be Done by Agent Illegality Capacity of Parties-
Joint Principals and Agents.
V. Delegation by Agent Subagents.
VI. Termination of the Relajtion.
VII. Construction of Authority.
Part II. BIGHTS AND LIABILITIES
BETWEEN PRINCIPAL AND THIBD
PERSON.
VIII. Liability of Principal to Third Person Contract
IX. Same (continued).
X. Admissions by Agent Notice to Agent.
XI. Liability of Principal to Third Person Torts and Crimea.
XII. Liability of Third Person to Principal.
Part HI. BIGHTS AND LIABILITIES
BETWEEN AGENT AND THIBD PER-
SON.
XIII. Liability of Agent to Third Person (including parties to contracts).
XIV. Liability of Third Person to Agent.
Part IV. BIGHTS AND LIABILITIES
BETWEEN PRINCIPAL AND AGENT.
XV. Duties of Agent to Principal.
XVI. Duties of Principal to Agent.
Appendix.
WEST PUBLISHING CO., St. Paul, Hirm
(26)
3E)orn8oo8 Aeries*
THE ALBANY LAW JOURNAL, in a recent review of one of the volumes of the
Hornbook Series, writes :
"So much has been written upon the merits-of the Hornbook Series that anything additional
may seem superfluous; yet we cannot refrain from commenting, in passing, upon the general utility,
merit, and scope of the series. * * * The series is of untold value to the practicing lawyer,
enabling him to find and refresh his mind in an instant upon any fundamental principle or variation
therefrom of which he may be in doubt, and furnishing an ever-ready and convenient digest of the
law. "
This emphasizes the fact, which has also been practically recognized by the
members of the bar who have examined the volumes issued under this name, that,
although low in price, they are not, in consequence, cheap books. They are elemen-
tary in the sense that they deal with the elementary branches of law, but they are
not by any means elementary in the sense that they fail to give the compre-
hensive handling which the practitioner, as distinguished from the law student, re-
quires. In planning the style and character of this series, the controlling idea
was that any principle of law could be stated in simple and intelligible terms, if the
man who made the statement understood the principle, and knew how to express
himself. It was to some extent an attack upon the old theory that a certain amount
of obscurity in a legal document heightened the effect of learning. It was main-
tained, instead, that any legal principle could be stated in simple and intelligible
terms, and each separate branch of the law, if carefully studied with this in view,
could be mapped out so that the fundamental principles involved could be shown in
an orderly sequence, and in their relation to each other. The soundness of the
theory has been shown by the success of the Hornbook Series. The several vol-
umes have been prepared by different authors, carefully chosen from the field
of legal writers, with the object of securing thorough and expert treatment of the
particular subject assigned in each instance. The method of presentation was at first
considered a novel one, but has now become so well known, through the seventeen
works issued, that the Albany Law Journal could refer to it in the terms quoted at
the beginning of this notice. The books have been found so exact in statement, so
convenient in arrangement, and so unmistakably clear in style, that they have been
adopted as the basis of instruction in over seventy law schools. At the same time,
they have been found by practitioners to be exactly the kind of book that a prac-
titioner needs to have on his desk for current reference. He presumably knows
the law, yet he often desires to refresh his memory regarding some special branch
before he takes up a case involving questions relating to it, and for that purpose
the arrangement of black-letter paragraphs for the statement of principles is pecul-
iarly convenient. At the same time, the exceptions and modifications of these
principles are stated in a different type, so that it is possible for him to go into de-
tails of any question when he desires to do so. The authorities are grouped in
notes at the foot of the page, and their completeness is evidenced by such testi-
mony as the following:
"I found upon page 58 of this small volume [Clark's Criminal Law], in a small compass, a
statement of the divergent views, and a collation of the authorities pro and con [on a certain ques-
tion], all contained in a more condensed and satisfactory form than I have found in any other
treatise." Hon. J. M. Dickinson, Asst. U. S. Atty. Gen.
"I found in Clark's Criminal Procedure, under 'Jurisdiction,' authorities regarding the ques-
tion of asportation, for which I had on a previous occasion spent months of patient search. Fetter
on Equity has also already paid for itself many times over." U. S. G. Pitzer, Prosecuting Attorney,
Martinsburg, W. Va.
C1328-6 (2<")
i: