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THE

LAW OF NEGLIGENCE

IN NEW YORK.

BEING ALL THE REPORTED CASES IN NEGLIGENCE
AND KINDRED SUBJECTS IN THE COURT
OF LAST RESORT OF THE

STATE OF NEW YORK.
(To Jan. Ist, 1895.)

CONDENSED, CODIFIED, CLASSIFIED.

BY

JOHN BROOKS LEAVITT,

OF THE NEW YORK BAR.

NEW YORK:
THE DIOSSY LAW BOOK COMPANY,
Publishers.

1895.
Ab,

CorvricutT, 18953

  

BY

Joun Brooxs Leavirt.

HFN
5315
AS

LYS

PRESS OF
HENRY I. CAIN,
35 AND 37 VESEY STREET,
NEW YORK.
TO MY WIFE.
PREFACE.

‘ The conventional apology for taxing the patience and purse

of the profession by a new law-book on an old subject is as
‘unnecessary as itis threadbare. Ifthe book will be of any use,
the apology is superfluous ; if not, it is an aggravation of the
offence and should enhance the damages. Any desire of the
-author to pay a debt to his profession is no palliation. We
would prefer to let the debt remain unpaid, rather than be put
to the trouble of examining into the validity of the tender.

That which the lawyer needs, all that he wants, in addition
to books of reports and treatises by master minds, is a digest
on some plan that will enable him to find the trail of a “case
in point” without tedious search. The foremost men of the
bar, who can give us learned disquisitions, in which their own
opinions are no less valuable than those in the reports, do not
often turn their attention to writing law-books. Many so-called
text books are only valuable in so far as they partake of the
nature of digests. They are seldom read; their pages are turned in
the hope of chancing upon some pertinent decision, which has
hitherto eluded the eye of the weary searcher after precedents.
The tendency nowadays seems to be, not so much to discover
the principle upon which a case should hang, as to array a
mass of authorities, whose facts bear some resemblance, how-

_ever slight, to the one in hand.* Arguments, in large cities at
least where hurry is king and superficiality queen, are apt to
become mere games of match-penny. So true is this in New
York, that we do not exchange our briefs until the last moment,

 

* Witness the long lists of authorities in the briefs of counsel in our Court
of Appeals’ reports. It will be found, on looking them up, that many of
them have no relevancy whatever to the points which they are cited to sus-
tain. It was once said of one counsel, whose vicarious energy by means of
law students in his office resulted in making his briefs very mountains of
seeming industry, that the heaviest labor the Court of Appeals had to per-
form, was the taking down from their shelves the numerous books which he
cited in the effort to find a case which bore on the point.
vi PREFACE.

 

for fear of letting our opponent see the names of the authorities
by means of which we hope to snatch a favorable decision from
a bewildered court. Do we not often hear of men keeping pet
cases in reserve to spring them at the last moment in the Court of
Appeals? Authorities which bear against their positions are sel-
dom discussed upon. general term briefs. If they are not well
known, it is preferred to take the chance that they may escape
the notice of the opponent or the court, rather than run the risk
of bringing to their attention a decision which may be held to
be fatal.

Much talk is heard of an overcrowded appellate court and
of the necessity of adopting some plan of relief. Little is
said of the causes which produce so many appeals. Those
causes have their roots in the courts below. One of them
is the failure to require an exchange of authorities in
advance of an argument. Our practice carefully prevents
surprises as to questions of fact. The cause of action and
the defense must be fully disclosed in the pleadings. Upon
motions affidavits must be served. Buta state, whose reports
are the most numerous and bewildering ofall, lags behind sister
states in adopting a plan to prevent surprises upon questions
oflaw. If counsel were to be required to disclose their law,
just as they must disclose their facts, in advance of the contest,
our courts would not be so often compelled to spend time in
escaping from a labyrinth of conflicting or irrelevant authorities,
in which they have become lost through the guidance of inde.
fatigable, if not discriminating, counsel. Arguments would be
what they are supposed to be, aids to the court ; not what they
so often are, hindrances. * .

 

* Since the above was written, a rule has been promulgated by the Court
of Appeals requiring an exchange of points in advance of the argument, and
forbidding the submission of additional ones except upon request of the
court itself. It were well ifa similar exchange were required upon appeals
and motions in the lower courts. The effect would be not only to keep dis-
cussions to the points involved, but also to turn our briefs, falsely so-called
now, into briefs in fact, skeletons of the argument, whose office is simply
to refresh the memory. Oral arguments would regain their proper place in
our judicial system. Complaints, which lawyers are sometimes heard to
make against some (not all) of the General Terms, that they manifest
‘weariness at counsel’s speech, and indulge in speech of their own not
always in whisper, would disappear with the causes which produce them.

The custom of putting on the briefthe argument, 27 extenso, exists because
‘it is felt that the court, though it may not listen, will read. The court nature
PREFACE. vil

As the maddening number of reports in this state has
developed the necessity for mad search after precedents,
so there must be evolved better methods for finding
them. A text-book, which is not of sufficient rank to be
appealed to as an authority, which is padded with wearisome
quotations, repeated over and over again in different parts of
the book, affording too evident traces of an unlawful partner-
ship between scissors and glue-pot, not always disclosed by
quotation marks, is not of very much, thoughit is of some, use.
The digests would be all-sufficient, if the cases given under the
different headings were more logically arranged, and the state-
ment of the points ruled so accurately couched that one could
safely cite them. Most of our digests, however, are like guide-
posts which, while they point in the right direction, often
contain misleading directions.*

Now, if in this condition of things our law writers were to
direct their efforts, not those of youthful assistants but their own,
toa patient digesting of the decisions, so as to get at and state

 

ally sees no reason, why it should listen to that which it must afterwards
read. The bar blames the bench for yawning, the bench replies that the bar
is prosy. If counsel, apprized beforehand ofall the authorities to be cited,

were tocome to the hearing with the intention of meeting the real points in
dispute, fewer authorities would be cited, the court would be spared the
loss of time involved in looking up irrelevant cases, and in the great major-
ity of appeals it could render a decision on the spot. There are compara-
tively few cases in which a first impression of an argument is corrected by
deliberation. Ashort, pithy, oral cpinion, hot from the brain of an experi-
enced judge, who has really been taking in the arguments of counsel, would
usually be just as correct, and in the long run, far more satisfactory than
any elaborated essay which may afterwards be handed down as the result
of ‘‘taking a case under advisement.’* Our General Terms write too many
and too long opinions. If proof of this assertion is needed, outside of the
opinions themselves, it is found in the fact that they are seldom referred to
in the Court of Appeals, either by counsel on the argument, or by that court
in its decisions.

* It is but fair to the able editor of our great digest in New York, to
whom every lawyer in the state is so deeply indebted and without whose
valuable work intelligent practice of the law would be well-nigh impossible,
to remember that no one man can digest all the cases inthis state, and that
assistants in such an undertaking can not, in the very nature of things, be
men of sufficient experience to qualify them hurriedly to extract and cor-
rectly to state the rulings in every decision, It is no reflection upon any one,
who attempts to digest the whole law, to say that no lawyer can safely cite
any case from a digest without verifying it by personal examination.
vill PREFACE.

the exact points by which each is differentiated from every other,
thereby showing the true value and bearing of each, and toa
collating and arranging of them in systematic ways, andto an
indexing of them upon several independent methods, so that no
case could elude us, and we could lay our hands upon what.
we want without much trouble or search, using the time in
studying, which we now take in looking for cases, they would
confer a lasting benefit upon a grateful fraternity. With the
treatise for a discussion of principles, the report for authority,
the digest as a guide-post, the profession would be amply
equipped for all legal encounters.

It is with the hope that the plan, upon which this book is
composed, will commend itself as a useful one, even though its
execution be faulty, that it is put forth. It is the expansion of
a trial brief of the author—if without loss of modesty he may
use so dignified a name in regard to a book. which is little more
than a compilation. He hopes that an arrangement of author-
ities, in a way which he has found enables him to thoroughly
prepare for the trial of an “accident” suit at short notice, will
be of assistance to others.

As the plan of this work is novel, it may not be out of place
to mention how it originated.

It so happened that during the last contest over the adoption
of the civil code, which happily for the welfare of the people
of this state was finally defeated, the present writer in an open
letter to the author of that code asking for information upon
certain points which were material in forming a right judgment
as to its utility, put this question: Why was it that in a code,
which professed to be a complete embodiment of our common
law, the topic of negligence had been so strangely ignored?
It was suggested that the abstract question as to the advisability
of statutory codification might be put at rest, if a concrete code
were produced capable of sustaining the positions of those
who advocated statutory codification; that that was the test
evidently intended by the Constitution of 1846; and further
that the usefulness of such a code ought not to be determined
a priort by an ignorant set of legislators rather than a@ josterior?
by an experienced set of lawyers. It then occurred to the
writer that it might be worth while to attempt to emphasize the
point, by a codification of the law of negligence, which the
civil code then under discussion wholly failed to do. Ifsucha
PREFACE. ix

 

codeshould grow into daily use, that fact would demonstrate that
a code of platitudes ,is insufficient, and that statutory codifica-
tion is unnecessary.

Now, it is obvious that any undertaking, purporting to be a
comprehensive statement of the common law or any branch of
it, whether called a code or not, should be accompanied by a
citation of every ruling upon the subject, whether it supports or
is in conflict therewith, so that the mistakes of the codifier may
be easily detected. Hence, nota single case should be omitted,
be its value great or small; even those which have been over-
tuled or ignored or have become obsolete should be given, as
well as those which have been limited or distinguished. Ifthe
codifier wishes to be of substantial service, he must not put
forth that which in his opinion ought to be the law, but confine
himseif to the humbler task of condensing that which is the law;
and he should provide the means by which his utterances may
be judged, his errors.and shortcomings exposed.

Tue Pian oF THE Boox.—In Part I, all the cases have been
given chronologically.* The purpose is three-fold; to enable
the advocate in court to have a ready means of ascertaining the
exact points decided in any case which his adversary may cite;
the brief-maker in his office to speedily verify the rulings adduced
in support of the sections of the code, and find what cases are like
his own in their facts; the student to trace the development of the
law ofnegligencestepbystep. It is to be remembered that this
branch of the law is virtually a growth of the last fifty years.
New kinds of motive power, the spread of machinery, the code
of practice which sanctioned contingent fees, all coming about
the same time, concurred in producing a vast array of suits,
more in number than in any other topic ofthelaw. No system-
atic correlation of them has heretofore been made. When this
book was started, ten years ago, the Court of Appeals reports

 

* Aslight exception should be noticed. The cases taken from the official
reports have been given in the order of their sequence in those reports, so that
they may be referred to without being obliged to look them up inthe table of
cases, This has necessitated a departure from thechronological order as to
some decisions of the Commission of Appeals and Second Division, andas to
the ‘Memorandum decisions” in the later volumes. The year, however, in
which each case was decided is stated,at the top ofthe page. . The cases in
the unofficial reports have. been placed among the others.in their chro-
nological order a can readily be found oF consulting the special index of
them (see, page 2;). : eg
x PREFACE.

 

had not reached the hundredth volume. During this decade
the negligence cases decided by it nearly equal in number
those of the preceding seventy-five years.

In Part II, the cases have been topically arranged, in order
to afford a method of testing the accuracy of the sections of the
code, to supply its deficiences, and to arrange the author-
ities so that he who consults them may know that he has seen
all that bear on any given point.

In Part III, the cases have been classified with the intent,
more fully there explained, of enabling the busy practitioner to
find analogous cases with ease and celerity.*

In this way, the law of negligence so far as it has been
declared in this state, is brought under view. If the project has
been properly carried out, a trial brief can quickly be made up
in any case by referring to the sections. and rulings under them,
by means of their numbers.}

If the sections of the code are inaccurate or insufficient, the
rulings from which they are collected will disclose the fact.
An error in stating a ruling will be discovered upon examina-
tion of the case itself in Parr I, where the facts on which it is
based are set forth, together with the disposition made by the
court at each stage of its progress. It is, therefore, obvious
that no negligence of the author can injure the careful reader,
unless it exists in a mistake in a statement of facts.{ Against
such, the author must put in the plea, that while he has tried

 

* The law of negligence, more than any other topic, may be said to have
been built up through the application of analogies. The question usually
is, ought a man to be deemed to have been careless? The wealth of deci-
sions is now such that the question can generally be answered by the
statement that in such and such a case, under such and such circumstances
so and so was held to have been, or not to have been, negligent.

{ To facilitate reference to the various rulings of the courts, indepen-
dently of the sections of the code, under which they are grouped, they have
been numbered separately.

tf If anything tends to foster humble-mindedness, it is the discovery of the
mumerous mistakes, which one makes in wriling a law-book. Poor human
nature is, however, so constituted, that we see those of others more easily
than those of our own, At the time of Queen Victoria's jubilee one of Eng-
land’s judges, in composing the address on behalf of the judiciary, inserted
the phrase ‘“‘ conscious as we are of our own short comings.” One of his
brethren demurred to it, and said he was not conscious of his, and if he
were, he would not be so foolish as to say so; whereupon another reterted,
«« make it to read, conscious as we are of each other’s short comings.”
PREFACE. xt

 

 

to exercise even more than ‘‘the care of an ordinarily prudent
man,” he is not an insurer.

Tue Cases Setecrep.—Only those which have gone to the highest
courtareincluded. To have given those, which went no further
than the General Term, would have unduly swelled the bulk of
the book. The number ofreversals in this class of actions has been
very large. Among those in which opinions were written by the
Court of Appeals there have been nearly as many reversals as
affirmances, (The figures are, Aff. 521, Rev. 431.) This per-
centage is reduced by the affirmances without opinion, but is
still so large as to make it expedient, in a work of this kind, to
adopt the rule of exclusion just mentioned.

The ‘‘memorandum decisions” in the Court of Appeals re-
ports, in which no opinions were published have also been
omitted. The statement ‘‘judgment affirmed, all concur, no
opinion,” does not, at least it is so believed in the profession,
necessarily mean that the law as laid down by the General
Term is approved as well as its judgment affirmed. This is
especially the truth in negligence suits. A feeling has grown
up among us that an affirmance sometimes indicates doubt as
well as conviction ; sometimes is granted where, although it is
on the whole apparent that justice has been done, it would be
difficult to uphold the judgment against an attack upon a tech-
nical point, which would have to be met if an opinion were
written. Although the wisdom and propriety of such a custom
may not be open to question, it is obvious that its existence pre-
vents any text-writer from accepting as finally adjudicated law,
a decision of a general term thus affirmed. The safe course to
adopt is to assume as to every case where the Court of Appeals
wrote no opinion, that the opinion below presents nothing of
value for a work of this kind, because no one off the bench can
decide whether its reasoning is so sound as to need no further
elucidation, or so incorrect as to render it impossible of refuta-
tion without upsetting an equitable conclusion.

At the outset it was intended only to include cases growing
out of bodily injuries. It was soon found that this would be a
very inadequate treatment of the subject of negligence. In
broadening the scope of the work a fresh difficulty was met, in
that by including some cases others could not be logically ex-
cluded. These, in turn, necessitated the dragging in of others.
So it comes to pass that there will be tound here a number of
xii PREFACE.

——

decisions, which cannot be said to have any business in a
work on negligence, if negligence is to be regarded as it usually
has been, a tort; also others, which will not be thought to have
any right here at all, whether negligence is a tort or a breach
of contract. As tothese latter the writer, if called to plead at the
bar of logic, might possibly defend himself upon some shadowy
ground, but his best course is to throw himself upon the mercy of
his rigorously critical reader and consent that if the latter’s
sense of the due relation of things is offended by the presence
of a case which ought not to be here, he has the writer’s
consent to its being torn out in mitigation of damages for the
purchase price. He will only urge that as the examination of
every decision from Johnson down was necessary for the purpose
of discovering all the rulings upon negligeuce, it was simply
impossible to adhere to any rigid line of demarkation. He is
troubled far more by the fear that some case, which should be
included, has escaped his eye.

Tue PurasroLocy oF THE Hrap—Notrs.—The head-notes have
been the author’s chief care, and are now the subjects of his.
most anxious solicitude. To condense into short propositions,
which shall mix in due proportion the necessary ingredients of
fact and law contained in a decision, is a task, the attempt
to perform which will make one very charitable towards our
court reporters.

It was because the head-notes in the reports are so unsatis-.
factory that he was obliged to attempt the construction
of new ones for his own _ use. Propositions which
have been settled for many years are often placed in the syllabus
as the rulings in the cause. The court, in its argument, happens.
to state certain postulates in pithy sentences, and straightway,
some youthful assistant of the reporter, to whom perhaps they,
are,new, is struck by them as being an excellent statement of.
principles in an important branch of the law of negligence, draws.
a blue pencil round them, and directs the printer to set them up,
in brevier at the head of the case. Little effort is made to state
the.exact point ruled. :

The use of the phrases, negligence ger se, negligence in law, -
and ,inecessarily negligent, decreases as the book goes on. It:
is one of the evidences of the evolution of this subject.. A body:
of rules, some one of which will be applicable to almost any
coneeivable set of circumstances, is now in existence. In the
PREFACE. xili

 

earlier cases, when the rulings were but few, it was always
‘borne in mind that the jury had settled the question as one of
fact. That is now lost sight of to a great extent. It is negligent
for a passenger to attempt to get on or off a moving train un-
less impelled by some motive other than one of-his mere
convenience, The courts have definitely so decided. No jury
can make it a careful thing to do. It is negligent for a carrier
‘to start his conveyance with a jerk while a passenger is getting
‘on or off. This has been finally adjudicated. No jury can
undo that holding. So with many other rules. That which,
‘thirty years ago, was a question of fact is now a question of law.*
Rulings upon such points need no longer to contain the phrases
above mentioned.
Vacue or Cases.—No attention has been paid to the consideration
whether a decision was unanimous.{ This book professes to be a
‘code of the law, not as theauthor thinks it ought to be, butasithas
‘been declared to be. Therefore the relative value of cases and
their weight is not within its purview. In a few instances
-queries have been suggested in notes.
Osrtrr Dicra.—These have been rigidly excluded. However
“valuable they may often be, however sound, they ought never-to
be relied upon as authority. Confusion of thought, which in turn is
the cause of many errors, arises from the fact thatsufficient regard
is not paid to the exact point ruled, nor sufficient study given
to extract it from the opinion. Not only in many instances are
there shovelled into head notes well settled propositions, which
have become landmarks, but passages from opinions which are
wholly oddter.t
Corninc Worps.—In two or three instances words have been
coined for the reason that in technical matters, new words should
be made, if thereby the use of phrases can be avoided.

 

* See note to 2 2 of the Code, (p. 486,) .

+ In Lahrzv. Met. El. R. R. Co., 104 N. Y., 268, a strong attempt was
made to obtain a reconsideration of the rule in Story’scase upon the ground
that it was by a divided court. See opinion of Ruger, C. J., as to the
authority of opinions by divided courts.

{¢ For the troubles that come from confounding oditer dicta with rulings
see note to Bartlett v. Crozier, 17 Johns., 438. (Part I, p. 4.) See also
opinion of Earl, C. J. in Roch. Lantern Co, v. Stiles &c. Co., 135 N. Y., at
p. 214. ‘*This brief review of the cases in this court shows that the
inconsiderate dictum in Kellogg v. Thompson, has borne a small progeny
of dicta—all in conflict with what was actually and deliberately decided in
Stoddard v. Whitney, and we must now reaffirm the doctrine of that case.’
xiv PREFACE.

The author wishes to make grateful acknowledgment of his
obligations to his friends, Messrs, Robert F. Wilkinson, of
Poughkeepsie, and S, C. T. Dodd and Boudinot Keith, of New
York, for careful and valuable criticisms of portions of the proof
sheets. He is indebted also to Mr.‘George W. Sauer, one of the
librarians of the Bar Association, for accurate assistance in the
work of verification and arrangement.

The hope is entertained, that even if the book be found
wanting as a correct embodiment of the law of negligence in
this state, it will be of use to the profession in the humbler
capacity of guide-book to pertinent authorities. Should the
plan of the work commend itself, it might be well if some one
were to codify the law of evidence in the same way. Indeed it
were worth while for the bar to consider whether it would not
be advisable to select a council of lawyers to make a complete
voluntary codification of our common law so far (only so far)
as it has been authoritatively declared by our highest court. It
can not be denied that such an undertaking, if well carried out,
would be of great use. In that way would be attained all the
advantages, which the codophile ardently claims for statutory
codification, without the attendant evils, which the codophobe
so truly predicts.
CONTENTS.

TABLE OF CASES. PAGE,

Indexed under Plaintiffs’ names.__. _.._...2.22... 22.0 ee eeceeneceeeeee Xi
“ ‘© Defendants’ ** _.o oo. 8 ek ee ce cee ee cece cece ee xl
PART I~THE CASES CONDENSED. (1810-1895) .......-------- 1-483
PART T1—THE CASES CODIFIED jo.cc005 coacoicawnoer saseocas 485-734

PART IJI—THE CASES CLASSIFIED..__........2.-.-.---------735-786

PART ONE,
EISTOF REPORTS Jos scene cdteuld cowddddudieddacdodsedaecessoncdwacdsioes J
SPECIAL INDEX of cases in unofticial volumes ....-...:--.---.----..---- 2
GASES: CONDENSED! 36 fo ode oboe oe ein oe tears ee Bh sonata iranian re eeenen 3
PART TWO.
REMARKS ON STATUTORY CODIFICATION... 222.20 220- ence eee e eee ee ees 484g
xvi CONTENTS.

CHAPTER I. PAGE,
(§§ 1-34)

GENERAL PRINCIPLES..._..-.------------eceeeee aisiduadicciemeceasees 485-493

CHAPTER II.

(§§ 35-148)
CauUSATIVE NEGLIGENCE ____.._------- eee eee eee Nitta r ie Soak 494-605
TiTwe I.
ANG States no CGechutnst cen behets hee aah oe ene tet ONS 494
Tite II.

Municipal Corporations. __... 22.2222. 12.22 cece ee eeeecee tence eee 498

TITLE III.
Quasi-Municipal Bodies, Boards, Public Officers, Public Contractors 514

Tite IV.

Individuals, and herein of Corporations................ w2e-- 520-606

Article 1.

Article I,

Common Carriers,
A.—Of Passengers
B.— “© Goods...

wr tte ree ce ee eee eee eee 543

Article III.
Travellers on and Occupants of the Highway... 2.2.2.0 oo 560

Article IV.

Owners of Real Property, and herein of Lessees and Licensees 572

Article V,

Miscellaneous Defendants : 589
ConrTeEnTs. XVIF

 

CHAPTER III. PAGE,
(§§ 149-197)
ConTRIBUTORY NEGLIGENCE ___.._...-.-...----- Hseimicetene «e+. ---607-640
TITLE I.

IntGeneral 22s coc6Saces aes sesesseeiaes Secawcneseaduseeaeceddece (O07,

Tire II.
in Detail. sc2sssssssasds Soecceteaens ete cvarscre waeiereeieieeeroass 609-638

Article I, ‘
MORVANS oes cies onic baisdicesinrcwiahasmeeaeeceee e@aewdiees tenes cs. 009

Article IT.
Passengers ..__... DLececneee ka Gewese ees ene -- 615

Article ITl,
Travellers at Railroad Crossings... ....2.....2+.ceeeee.------- 620

Article lV.
Travellers along the Highway._._........--.-..- Seseencsnntie O25

Article V.
Owners of Real Property and herein of Lessees and Licensees. 629

Article VI,
Miscellaneous Plaintiffs. .... 2.2.02. eee eee ee eee ee ee 631

- Tire HI.

Imputed Negligence...) 122-22. 22-22 ee ee eee eee ee eee tenes 638

CHAPTER IV.

($§ 198-203)
(QUESTIONS ‘OF FACT 5.02 siccieiciene aie ie Saws ewacnine nwa sen mea tiewcciecenic 641

CHAPTER V.
(§§ 204-206)

DEFENSES, and herein of Immaterial Matters._ ........--2--.2--..---. 655
Xvili ConrTENTS.

CHAPTER VI. PAGE.

(§§ 207-213)
DAMAGES ......--..---- cbs Wialanera orarsvecvelSicsesaS Rice Sibleinieiseres Maren: disiceees

CHAPTER VII.

(§§ 215-228)
EVIDENCE 32225. a 5ete cc avaebecce cud su ood oe we ceiceiemecusemiseeseesesea ce O7%

CHAPTER VIII.
(§§ 229-231)
‘CAUSES. Socenasencd siete aioe apcee MEERA mAME ee Sees ee eeenciaeweaee one 704

CHAPTER IX.

PARTIES,
PLEADING, _( (9§:232=243) uc .ccunecaien netic ciciciewienebeine wt es coceec tes 709

|
Practice, |

CHAPTER X.
MISCELLANEOUS SUBJECTS.
Abatementiyc cosine Sos eee wee cee BAe ee ie eee eee 721
ASSIS ria DIY pace csctst cin cease areimrcrsiziesaranstciapesehararch ceeiater ornare parca areas 721
Constitutional Questions...... 000.00... c ee ee eee eee eee cee 722
Contract Or Torts. cig staat oer tails wisi sega iscinetommeeaned wan 722
INJUNCHOR so. 2acccwcooses Sos smereiiewe ancloerls Jamelaudte Bae ecielns 722
JiAPAS CIC TIONS 5 S555 5 sccpermce psec hel Sessan cha sine tae heaeshecsonbhes aise wea oe 723
INGUICE a 22 ee oe eaters erecta a enn oth oS Sigs sstre ae earl 723
IN WIS ANC oy iste yes te estes at ey cynic itv ehestater as ches esl ote ea kal dave ces 724

Ordinances a2. 8 yi sce ahd ced Secee een ccumaeaee baw ee wee eabeey oa 24
Pay mentirs: 0.2252 aitaki naam vb mocela since wee ak croneehae eee Ue 725
Presentment of Claims.._._..2. 002.0. 0202 -o eee eee eee eee eee 725
RECOVERY OVEN 2... (oR aca se Fa st nia-omae nemieccenincauee de gee deen's 720
Res adjudicata.. 22.2... Lo ee ce ee ee ee ee ee ee ee cee eee 724
Satisfaction (skp. oa tociuiecne: ansinueauendenbeancocwemad duce: 28
Statutory Causes of Action.......000...0 00.0222 eee eee eee 728

Illustrations.

Rulings reported too late for Classification.
Abatement. Notice.
Causes. Owners of Pers. Prop.
Damages. ae “Real
Defenses, Pleading.
Evidence. Practice,
CONTEXTS. xix

 

PART THREE.

PAGE,

Crass A.

Plaintiffs... 22 sc: sccccooeatadets, beseceice, Sdacanete kes aidedinatescer 737
Crass B.”

Defendants. 23) oe coe eee ie a re einen baeeeee Cees cee 738
Crass C

Accidents—mainly, .. 2. 10. . .. eee eee ee ee ee ee ee eee ee wee eene wes 739
Crass D,

Under contraction fo. 606 wodesiwseacecsac ec sces scm tewses weecenciowe 763
Crass E

Werdicts ois cots ii cove cise cs tc sascteeweswevedeswenteeds weenesiss 766
Crass F.

Statutes_.._.... a Fake Seen neha datierciralsiale bh nib Dale esa DG esinicianadiesiwe wisele & 782

INDEX. (See also page 2)......22.-2--eeeeee eee esunats mace sites 787
TABLE OF CASES.

.A.—PLAINTIFFS’ NAMES.
B.—DEFENDANTS’ “«

 

A.—PLAINTIFFS’ NAMES.

Abbott wv. Johnst. &c. Co., 229, 526
Abel v, Del. & Hud. C. Co., 311, 426
533, 534, 612, 648

Acer z. Westcott, 107, 638
Achesonv. N.Y, C. & H. &c. Co., 167
Ackert v. Lansing, 160, 584
Adair v. Brimmer, 211, 601
Adolph wv. Cent. Pk. &c. Co., 179, 221
565, 628

Ahern v. Steele, 363, 577, 588
Akerslootz. Sec.Ave. &c.Co. 438, 552
Albert v. Sweet, 364, 588, 652
Albertiv.N. Y:Lake E.&c.Co. 374, 666
675, 690, 692, 696

Alden v. N. Y. Cent. &c.Co., 45, 549
Alexander v. Greene, 8, 605, 660, 696
Alexander v. Roch. &c. Co., 423, 706

Allan zw. State S, S. Co., 440, 555
604, 722
Allen v, Fourth Nat. Bk., 157, 637

Allen wv. Merch. Nat. Bk., 7; 593, 665
Allen v. Sackrider, 74
Allen v. Suydam, ‘7, 5901, 674
Allen v. Williamsb. Sv. Bk., 192, 594

Allison v. Vill.of Middlet.-304, 688, 717 |:

Althorfz, Wolfe, _ 36, 578
Amer: Ins. Co. v. Bryan, ' 7, 680
Amer. Ins. Co. v. Ogden, 6, 634

Anderson v. Rome &c.:Co., 135, 694
Anthony wv. Leeret,
Appel 4. Buff. &c: Co., 347, 611
Appleby v. Erie Co.'S, Bk., ‘168, 594

321, 534 |.

Archer v.N.Y.N.H.&c.Co. 325,551,701
Arct. F. Ins, Co, v. Austin, 192, 635
640, 727

Arnoldz. Del. & Hud.C.Co., 406, 539
Atl. Dock Co. » City of B’klyn, 73, 131
Atl. Dock Co. v. The Mayor, 131, 258
663

Att’y Genl. v. Cont’1Ins.Co., 275, 602
Atwater v. Vill. of Canandaigua, 404
| Austin y. Hudson Riv.R.R.Co, 42, 582
Austinv.N.J.Steamb.Co. 94, 571, 635
Ayrault v. Pacific Bk., 112, 593, 597
Ayres v. Vill. of Ham., 432, 512

| Babbage v. Powers, 430, 567, 686
| Babcock v, Fitchburg &c.Co., 469, 680
Babcock v. Lake Sh.&c.Co., 118, 557
. Bahrenburgh z. B’klyn &c. Co., 145>
! 571, 653, 706°
Bailey v.RomeW.&c.Co.465, 535, 703
Baird wv. Daly, 147, 190, 665, 690
697, 700, 723!
Baird v, Gillett, 109, 699
| Bajus v. Syr. B. &c. Co., 310, 538, 705
Baker v. Manhattan R. Co., 370, 553
618, 676, 718
' Baldwin v, City of Oswego, 58, 503
| Baldwin v. U.S. Tel: Co., 105, 676
Ballou v. State of N, Y., 346, 497
Bk. of N. Y. v. Bk. of Ohio, 50, 593
| Bank of Osw. wv. Doyle, 265, 592

 

| Bank of Utica v. McKinster, 5, 593
TABLE oF CasEs.

 

xxii
Bank of Utica v. Smedes, 5, 592
Barber v, Abendroth, 307, 577

Barkerv. N.Y.Cent.Co. 42, 547, 694

Barker v. Paulson, 371, 666, 688
Barker v, Savage, 103, 564, 627
Barmon vz, Lithauer, 83, 636
Barnes v. Keene, 440, 669, 695
Barrett v. Smith, 425, 571

Barrett v. Third Ave. &c. Co., 104
555» 663; 728

Barry v. N.Y.C.& H.&c.Co., 270, 568
585, 625

Barthol. v.N. Y.C.&H.&c.Co. 308, 553

Bartlett v. Crozier 4, 518
Bartlett v. McNeil, 161, 719
Barton v. City of Syr., 68, 501, 506

511, 656
Barton v. Govan, 371

Bassett v. Fish, 216, 517, 597, 649
Baulec v. N.Y.& Harl.&c.Co.158, 535
Baxter v. Troy & B. &c. Co., 91, 624
Beach v. Raritan & D. B. &c. Co., 76

592, 599
Becht v. Corbin, 272, 680
Beck v. Carter, 188, 577
Bedell v. Long Isl. &c. Co., 99, 581
687, 699

Beisiegel v. N.Y.Cent. &c. Co., 62, 86
96, 569, 645, 670, 686, 694, 724
Belger v. Dinsmore, 124, 557
Bellingery N.Y.Cent.&c.Co., 37, 583
Belton v. Baxter, 134, 153, 627
Bendetson wv. French, 106, 596
Benedict v. State of N. Y., 388, 496
Bennerv. Atl. Dredg.Co. 453, 519, 582
Bennett wv. Garlock, 228, 602, 666
Bennett v. Whitney, 276, 516, 713
Benzing v. Steinway,
Bernardov.Rens. & Sar.&c.Co., 16
36, 567, 621, 642, 643

Berrig.v.N. Y.Lake E. &c.Co. 437, 534
Bertholf v. O’Reilly, 211, 672, 722
Besel v. N.Y.C. & H. &c. Co., 195, 530
$33» 536

Bidelman v. State of N. ¥., 341, 496
Bielingz. City of B’klyn, 386, 512, 657
Bills v. N. Y. Cent. &c. Co., 133, 240
Birkett v. Knick. Ice Co., 342,653
671, 675

303, 611, 614,

 

Birmingh.v, Roch.&B.Co.460, 549, 564
Bishop zw. Vill. of Goshen, 389, 720
Bissell v. Mich.South.&c.Co., 35, 659-
Bissell v N. Y. Cent. &c.Co., 43, 659
Bissell v. Torrey, 165, 591, 599
Black v. B’klyn &c. Co., 334; 650, 718
Black Riv. Bk. v. Page, 99, 633
Blackstock v.N.Y .&Erie&c.Co.32, 558
Blaechinska v, Howard Miss. 431, 670
Blair v. Bartlett, 214, 728
Blair v. Erie R. Co., 182, 660
Blaiserv.N.Y.Lake E.&c.Co. 343, 623

646
Blake v. Ferris, 13, 528
Blanchard v.N.J.Steamb.Co. 1§7, 608

635
Blanchard v. Wst.Un. Tel.Co. 163, 566

Blatz v. Rohrbach, 366, 682
Blauvelt, Zz re, 435, 602
Blossom v. Dodd, 95, 559, 559

Bly v. Vill. of Whitehall, 390, 512, 626

Bohn v. Havemeyer, 357, 614
Boldt v. N.Y.Cent.&c. Co. 31, 531

612, 731
Bond wv. Smith, 353» 567, 627

Booth v. Bost. & Alb. &c.Co , 133, 187

205, 530, 534, 684
Booth v.Rome, W.&0. &c. Co.468, 582

Borden v. Del. L.& W. ‘* 439, 683
Bossout v. Rome, W.&0O. ‘* 434, 719
Bostwickv. Balt. & O. « 104
Bostwick v. Von Voorhis, 267, 632

Bowenv.N.Y.Cent. &c.Co., 30, 680

682, 703
Bowen v. State of N. Y., 330, 497
Bowman v. Tallman, 89, 604.

Boyce v. Manh. R.Co., 376, 649, 654
Boyle v. N.Y. Lake E. &c.Co. 363, 580

720
Brace v. N, ¥. Cent. &. Co., 46, 579
Bradley v. Buff.N.Y. Ǥ 60, 579
Bradley v. N.Y.Cent.&c.Co,, 168, 613
Brady v. Manhattan R. Co., 418, 698
Brasselv.N.Y.C.& H.&c.Co., 242, 619

Breen v. ss ‘© 338, 685
Breese v. U.S. Tel. Co., 113, 556

. 559, 682
Breil v. City of Buffalo, 481, 733

Brennan v. Gordon, ,

378, 54t
TaBLe oF CasEs.

xxiii

 

Brewer v.N.Y. Lake E.&c.Co.400, 660
Briant v. Trimmer, 108, 716
Brice v. Bauer, 332, 598, 700
Brick v. Roch., N.Y.&c.Co., 287, 536

Brickell v.N.Y.C.&H. ‘“ 388, 623
Brickner v. N.Y.Cent. ‘ 120, 535
Briggsv.N.Y.C.&H. ‘202, 581, 675
Brinckerhoff v. Bostwick, 253, 321

600, 716
Brookfield v. Remsen, 76, 517, 658

Brooklyn (City of) v. B’klyn &c. Co.,
II, 726
Brooks v. Buff.& N.F.&c.Co., 22, 622
Brooks v. Schwerin, 135, 647, 670
Brophy v. Bartlett, 334, 643
Brownv. Buff. &St.L. &c.Co.34, 59, 724
Browny, Cayuga &S, ‘
Brown v,. Mohawk &H. * 8,10, 583,691
Browny, N,Y.Cent. ‘ 55, 567, 624
640, 692
Brown v.N.Y.Cent.&c.Co.60, 544, 555
Browning v. Hanford, 9, 517
Bruen z. Gillet, 360, 600
Brusso v. City of Buff., 265, 506, 510
627, 715
Bryant v. Town of Rand..447, 509, 648
657, 692
Bucher z. N. Y.C.&H.&c.Co., 286, 553
650
Buckley v. Gutta Percha &c. Co., 353
541, 614
Buelv.N.¥.Cent.&c.Co., 53, 555, 609
617, 618, 689
Buff. (C. of)v. Holloway, 15, 713, 726
Buft.&H.Tnp.Co.zv.C.of Buff. 156, 505
Buffett. Tr. & Bost. &c. Co., 87, 546
551, 659
Bulger v. Albany Ry. Co., 93, 570
Bullock v.Mayor of N.Y. 295, 644, 648
Bunnell zv. Stern, 395, 605
Burke wv. Witherbee, 290, 684
Burnell v. N. Y. Cent.&c.Co., = 103
Burnham v. Butler, 53, 647
Burrows v. Erie R. Co., 173, 618
Burtisv. Buff. & St. L. &c. Co., 4!
Bushbyv.N.Y.LakeE. ‘* 328, 538
Butlerv. Gl. Falls &c. St. “ 392, 616
Butler v. Manhattan R. Co., 480, 732
733

21, 583.

 

Butler v, Smalley, 300, 602
Butler v. Townsend, 413, 537, 539, 542
Button v. Hudson R.&c.Co., 301, 608
679, 681. 717

Byrne v.N.Y.C.& H.&c.Co., 240, 274
314, 569, 645, 652

Byrnes v. City of Cohoes, 184, 509
Byrnesv.N.Y.Lake E.&c. Co. 352, 534

717
Cahill v. Hilton, 324, 613
Cain v. City of Syracuse, 278, 507
Caldwell v. Murphy, 19, 692, 696

Caldwelly.N.J.Steamb. Co., 109, 550

658, 659, 674
Calliganv.N.Y.C.&H.&c.Co. 160, 66%
/ 725
Cameron v, Seaman, 192, 300, 602
Camp v. Wood, 219, 577

Campbellv. Perkins, 18, 598, 662, 722
Canfield v. Balt.& O.&c.Co., 213, 274
Card v. Manhattan R. Co., 313, 616
Cardot v. Barney, 172, 526, 602
Carlsonv.Oc. St.Nav.Co., 483, 558
Carlson v. Phoenix Bri. ‘‘ 444, 450, 540
Carpenter v. Blake, 123, 211, 603, 637

665, 675, 699
Carpenter. Bost.&A.&c.Co. 285, 549
Carpenter v. Carpenter, 43 5, 602
Carpenter wv. City of Cohoes, 233, 510
Carpenter v.East. Tr. Co.201, 652, 690
Carpenterv.N. Y.N.H.&c.Co. 400, 554

Carry. N. Y.C. & H. “© 164, 646
Carrollv. Stat. Isl. ‘© 151, 547
22, 551, 722

Casey v. N.Y.C. & H.&c.Co., 227, 646
Castle v. Duryea, 58, 518, 637

Catlin v, Adirondack Co., 235, 492

713, 719, 722
Cavin v. City of B’klyn, 386, 715
Cesar v. Karutz, 162, 586

Chamberlain v. West. Tr. Co., 98, 557
Champion v. Bostwick, 6, 548, 712
Chapman v. Erie R. Co., 139, 535
Chapmanv.N.Y.&N.H.&c.Co.32, 640

Chapmany.N.Y.Cent. “ 56, 527
Chapman z. Rose, 142, 638
Charlock v. Freel, 408, 519, 658

Chase v. Belden, 314, 572
XxXiv

Chipman v.Palmer, 224, 583, 676, 713

Chisholm wv. State,
Chrystal v. Tr.&Bost.&c.Co., 319, 404

470, 627, 682 ©

i 687, 706 .
City of B’klynz. B’klyn&c.Co.111, 726 |

City of Buff. v. Holloway, 15, 713, 726

City of Roch. v. Campbell, 398, 578
725, 727
City of Roch, v. Montgomery 202, 657
727, 728
Claflin v. Meyer, 215, 592, 680
Clancy wv. Byrne, 142, 587, 588

Clapperz. Town of Waterf., 436, 507 .

: 644, 701 |
Clark v. Brown, 6, 579
Clark v, Dillon, 285, 714

Clark v. Eighth Av.&c.Co.69, 617, 649
Clark v. Miller, 138, 518
Clark v. Union Ferry Co., 65, 128, 550

558, 605, 634 ©

Clarke. Roch. &Syr. &c. Co., 24
Cleghorn wv. N.Y. C. & H. &c. Co., 141

674, 696
Clemencew. City of Auburn, 182, 507
Cleveland v. N.J. Steamboat Co., 189

262, 407, 551, 553

Clews v.Bank of N.Y.&c.Ass.261, 321 |
355» 594, 653, 065

Clifford v. Dam, 233, 626, 679, 714
Cochran v. Dinsmore, 116
Cocks wv. Haviland, 403, 601
Coddington v,B’klyn Cross T. &c.Co.

Coghlan v. Dinsmore,
Cohenv. Dry D.E,B. &c.Co., 191, 528
Cohenv. MayorofN.Y., 353, 425, 503
Cohn, /n re, 225, 600
Cole v. N.Y.Cent.&c.Co.114, 549, 685
Colegrovev.N,Y.&N.Hav.&c.Co., 33
; 667, 712
Coleman v. Sec. Av.&c.Cv.360, 618,619
Collins v. Burns, 170, 592
Collins a, N.Y.C.& H. &c.Co., 338, 691
698, 699

Colt v. Sixth Ave, &c. Co., 120, 552
Com.Bk.of Alb, v.Ten Eyck, 114, 597
Com. Bank v. Varnum, 117, 597
Condictv, Grand Trunk R. Co., 137
Cone v. DLL.&W.&c.Co. 234, 395, 532

304, 555 |
75. 591, 665 |

 

Tasie oF Cases,

Congreve v.Morgan, 29, 662, 664, 724
Congreve wv. Smith, 29, 528, 567
Conn,F.Ins.Co. v. Erie R.Co. 208, 663

727

esi tiie ava Bes Co. 474, 555
731

Connelly v.N.Y.C.&H.&c.Co.255, 621
628

Connolly v. Knick. Ice Co., 355, 617
/ 632, 661
Conrad. Vill. of Ithaca, 25, 315
428, 505

Cook v. Lowry, 278, 603

Cookv, N. ¥. Cent. &c. Co., 75, 719
Coon wv. Knap, 17, 702
Coony, Syr. & Utica &c. Co., 14, 530
Coonley v.eCity of Albany, 441, 510
Cooper v. East. Tr, Co., 212, 572, 605
Coppinszv.N, Y.C.& H.&c.Co.395, 532
535

Corbett v. 23d St. R. Co., 359, 721
Corcoran v, Del.L.&W.&c.Co.416, 534
718

Corcoran vw. Holbrook, 159, 537, 542
Corcoran z, Vill. of Peekskill,330, 701
Cordellv.N. Y.C. & H.&c.Co. 177, 195
217, 229, 565, 569, 622, 645, 661
Cornell, Jz re, 342, 600, 676
Corwin v. N. Y, & Erie &c. Co., 22
+ 579, 634

Cosgrovev. N. Y.C. & H. &c.Co., 249
é 708
Cosgrove v.. Ogden, 116, 528, 653
Cosulich v.Stand, Oil Co.394, 687, 699

Cott v. Lewiston &c. Co.,,: 70, 584
Coughlinz. N. Y. C..& H..&c. Co, 200
604, 721

Coughtry wv. Globe Woolen Co., 141
529, 599

Coulter z, sea: Merch.Un.Exp.Co. 145
i 571, 609

et auiey: v. Baker, 161, 528
Covert v. Cranford, 471, 519, 584
eee ; 595, 676

Coxv., N. Y.C. & H. &c. Co., 172, 721
Crabb vw. Young, : 269, 601
Cragin 7. N. ¥. Cent. &c, Co., 123
Craigheadz,B’klyn City «. sor: 549

4

553» 697
TaBLe oF CasEs.

XXV

 

Cranstonv.N.Y.C.&H.&c.Co.312, 718
Crawford v. West Side Bank, 296, 633
Creed v. Hartmann, 50, 529, 626, 662
Cregan v. Marston, 415, 540
Creginv. B’klyn Cross T. &c Co., 215

239, 721
Crispin v. Babbitt, 234, 303, 521, 531

Crist v. Erie R. Co., 155, 699
Crocheronz. North Sh.S.1.F.Co., 146

550, 697
Crocker v. Knick. IceCo., 271, 571
Croft v. Williams, 256, 601

Crouse v. First Nat. Bank, 462, 593
Crown v,Orr, 469, 541
Culhanev.N.Y.C.&H.&c.Co. 162, 258

568, 645, 688
Cullen v, Del.& Hud.Can.Co, 354, 623
Cullenv. Nat. Sheet Met.R.Co.354, 614
Cullen v. Norton, 412, 532
Cumingv. B’klyn C.&c.Co., 336, 671
Cumming v. ‘“ f 317, 639
Cummins v. City of Syr., 299, 627
Cunningham v. Bay St.&c.Co.273, 588
Curran v, Warren Chem. & M. Co., 69

584, 630, 681
Curry v. City ofsBuffalo, 456, 664, 715

. 726
Curtis v. Del. L. & W. &c, Co., 210
Curtis v.Roch.& S.&c.Co, 31, 671, 682
Cusick v. Adams, 361, 577
Cutting v. Marlor, 226, 528, 603

Dale v. Del. L. & W. &c. Co., 208, 700
Dalzell v Long Isl. ss 386
Danav.N.Y.C.&H. “ = 271, 612
Danaher v. City of B’klyn, 384, 503
Danielsv. Stat. Isl. &c. Co., 408, 570
706

Davenport, B’klyn C,&c.Co. 299, 616
Davenport v. Ruckman, 76, 511, 567
587, 632, 647
Davidson v. Cornell 443, 537; 614, 693
Davisv. N. Y.C. & H. &c.Co. 110, 624

Davisv.N.Y,LakeE. ‘ 344, 715
Day v.Flushing N.S.&c. * 218
Dean, Jn re, 247, 600, 622

Debevoise v.N. Y.L.E.&c.Co.289, 729
De Forest v. City of Utica, 193, 669

 

DeForest v. Jewett, Rec’r,255,536, 612
De Graffv. N.Y.C. & H. &. Co., 219

539, 614
Delafield v.Un.Ferry Co, 128, 572, 635

Demarest v. Flack, 423, 597
Dennerleinv. Dennerlein, 347, 638
Denny v. Manhattan Co., 9, 591
De Peyster v. Clarkson, 5, 602
Derrenbacher v. Leh. Vall.&c.Co, 252
599

De Vauv. Penn.& N.Y.&c.Co, 431, 538
684

Devlin v. Smith, 261, 413, 523, 529
549, 542, 595

Dexter v. Syr. B.& N. Y. &c.Co., 93
Deyo v.N. Y.Cent. &c.Co. 57, 549
Dickinsyv, ‘* “38, 52, 552
650, 671, 672, 675

Dickinson v. MayorofN.Y., 271, 506
664

Dickson v.B’way & 7th Ay.&c.Co. 111
Dickson v. McCoy, 83, 598
Dingley v. Star Knitting Co., 454, 684
Dininny v. N.Y. & N.Hav.&c.Co, 118
Disherv, N.Y.C.& H.&c.Co; 277, 684
Ditchettv.Spuy.Duyv. ‘* 186, 580
587

Diveny v.City of Elmira,127, 512, 724
Dixon v. B’klyn C.&N.&c.Co. 296, 548
565, 616

Dobbins v. Brown, 383, 708
Dobieckiv.Sharp, Rec’r,254, 548, 616.
Dolan v. Del.& H.C.Co. 199, 569, 646:
Dolan v,Newb.D,& C.&c. Co, 391, 580:
587, 662, 663.

Dollard v. Roberts, 430, 586, 630, 671
Donahue v. State of N. Y., 348, 497
Donnegan v. Erhardt, 385, 536.
Donnelly v. B’klyn C.&c.Co. 335, 628:
‘640.

Donnelly v, City of B’klyn, 391, 664
Donovany, Board of Educ., 245, 516:
Donovan wv. McAlpin, 245, SIT
Dorman v.B'way &c.Co.,374, 586, 686
Dorrv. NewJers.S.N.Co., 20, 556, 559
Dorrity v. Rapp, 204, 582
Dougan v. Champlain Tr.Co. 140, 550
697, 700, 723

Doupe v. Genin, 102, 586
XXVi

Dowlingv.N, Y.C.&H.&c.Co.264, 652
Downszv. N. Y. Cent. ‘ 107. 146
552, 639, 693, 699

Doyle v.N.Y.Eye & Ear Inf., 232, 690
692, 700

Doyle v.Penn.& N.Y.&c.Co., 467, 647
Doylev. Rect.&c.of Trin.Ch: 382, 589
Drake v. Gilmore, 130, 729
Draper v. Del. & Hud. C. Co., 375
Drew vz. Sixth Av. &c. Co. 72, 639, 671
Drew v. Se ee 44, 552
Drinkwater v, Dinsmore, 231, 695
Driscoll v.New.& R.Lime&C.Co., 77
581, 651

Dubois wv. City of Kingst.305, 512, 626
Du Bois v. Decker, 431, 603, 637
Dudley v. Parker, 444, 707
Durkin v. Sharp, Rec’r, 255, 542, 708
Duryeav. Mayor, 170, 505, 583
Dutch. Co. Mut.Ins.Co, v. Hachfield,
206, 638

Dwight v.Elm.C.&N.&c.Co., 443, 676
Dwinellev.N.Y.C.&H. “ 386, 554
Dye v. Del. L.& W.  ** 432, 698
Dyerv. Erie R.Co., 199, 609, 645, 718

Dykev. a 101, 148, 673
Earle v, Earle, .273, 601
Eastman v. State of N. Y., 417
Eaton v. Del. L. & W.&c.Co., 147, 546

731
Eaton wv. Erie R. Co., 127, 646
Eckertv. LongIsl. &c. Co., 96, 609

Edgerton v.N.Y.&Harl. ‘* 82, 616, 713
Edwardsv. ‘“ ‘© 288, 577
Eggleston v.Col.Turnp.Co., 235, 566
Ehbrgottv.Mayor of N.Y.280, 513, 670
695, 696, 714

Eldridge v, Atlas S.S.Co., 453, 613
Ellis v, N.¥.Lake E, &c.Co., 279, 395
532, 538

Elmore v, Sands, 137, 547, 595
Elwoodv. West.Un.Tel.Co., 103, 559
Ely v. Superv.of Niag.Co. 70, 629, 707
Emblerv. Town of Wallkill, 443, 608
628, 713

Engel v, Eureka Club, 460, 529
English v. Brennan,” 164, 577, 597
Eppendorfv.B’klynC.&c.Co, 191, 650
699

 

‘TaBLE OF CASES.

Erickson v. Smith, 89, 702, 705
Ernst v. Huds. Riv. &c. Co., 43, 62

81, 646
Erwin v.Neversink S.Co.254, 572, 636
Etheringtonv.Prsp,Pk.&c.Co.257, 673
Evans v. City of Utica, Ig1, 629
Evarts v. Kiehl, 306, 517

Fairfax v.N. ¥.C.& H.&c.Co., 183, 206
Fallon v, Cent. Pk.N.& E.&c. 174, 259
639

Farley v. McConnell, 130, 519
Farm.& M.N.Bk.v. ErieR.Co, 203, 727
Faucett v. Nichols, 176, 596, 681, 698
Fayerweather v. Phenix Ins. Co., 377
560, 665

Feeney v. Long Isl. &c. Co., 365, 570
647, 669, 671

Fenton v. Sec. Av. &c. Co., 416, 633
Ferguson v. Hubbell, 285, 527, 581
587, 692

Ferov. Buff. & St.L.&c.Co.35, 580, 630
Ferris v. Un. Ferry Co., 71. 551, 618
Ferry v. Manhattan R. Co,, 378, 659
Field v. N. Y. Cent. &c. Co., 55, 363
690, 699

Filbert v. Del. & Hud.C.Co., 393, 537
Filer (W.T.)v. N.Y.C.&c,Co. 114, 671
Filer(H.M.)v. ‘115, 144
158, 188, 286, 350, $53

; 618, 642, 650, 670

Fillo v. Jones, 84, 690, 701
Finnellv. Del.L.&c.Co., 428, 537, 612
Finnerty v. Prentice, 218, 541
First Nat. Bk. v. Fourth Nat. Bk., 224
261, 593. 675, 728

First Nat. Bk.v.Ocean Nt.Bk. 163, 594
Fisher v. Vill.of Cambr., 448, 509, 627
Fiske v. Bailey, 124, 584
Fitzpatrick v. Slocum, 260, 516
Fleckenstein v.Dry D.&c.Co.322, 565
570

Flikev .Bost.&Alb,&c.Co., 44, 133, 150
187, 205, 206, 245, 321, 530, 535
Flinnv.N. Y.C.&H .&c,Co. 471,581,687
Flood v. West. Un. Tel. Co., 438, 537
Floyd v. Erie R.Co., 101, 673
Flynn v.Cnt.R.R.of N.J. 476, 585, 723
Folmsbee wv. City of Amsterd., 473

505, 582
TaBLE OF CasES.

xxvii

 

¥Fordv.Lake Sh. &c.Co., 374, 403, 533

538
Ford v. Monroe, 185, 673
Fracev.N.Y.Lake E.&c.Co., 478, 732

733
Francisv.N.Y.Steam Co. 358, 619, 628

Frank v. Chem, Nat. Bk., 241, 633
Frank v. Lanier, 266, 638
Fraser v. Freeman, 97, 526

Fredenburg v. North. Cnt, &c.Co., 359
611, 649
French v. Bf. &Erie &c.Co.84, 556, 686

French v. Donaldson, 148. 519, 647
French v. Vix, 478, 530, 595
Fuller v. Jewett, 133, 229, 537

Fulton Fire Ins. Co. v. Baldwin, 77

: 518, 720
Furmanz. Un. Pacific&c. Co., 325
Furst v. Second Av. &c. Co., 204, 693

Gabrielson v. Waydell, 455, 527, 599
Gage v. Vill. of Hornellsville, 326, 715
Galev. N.Y. C. & H. &c. Co., 222, 565
Galvin v. Mayor of N.Y. 348, 532, 644
657, 697, 708

Gardinier v.N.Y.C.&H.&c.Co. 313,683
Gardner v. Heart, 10, 582
Garlinghouse v. Jacobs, 48, 516
Garratt v. Vill. of Canand., 457, 508
Gates v. Preston, 90, 727
Gatesv. State of N. Y., 424, 722, 723
Gearnsz. Bowery Sav. Bk., 457, 594
Geismerv. Lake Sh. &c. Co., 308, 558
Genetw. Del. & Hud. C. ‘* 9459, 587
Germ. F. I. Co. v. Memphis &c.. 203
Getty v. Town of Hamlin, 421, 701
Gibney v. State, 460, 609, 706
Gibson v. Erie R. Co., 172, 255. 536
612

Gilbert v. Beach, 26
Gillespie v.City of Newb.136, 510. 628
Gillrie v. C. of Lockport, 394, 512, 698
Ginna v. Sec. Ave. &c. Co., 187, 617
Glasierzv. T. of Hebron, 436, 510, 697
Gleadell v. Thomson, 143
Glushing v. Sharp, Rec’r, 283, 622
Golllotel v. Mayor of N. Y., 250, 664
Goldberg v. N.Y.C. & H. &c. Co.. 449
553. 685

 

Gonzalesv.N, Y.&Harl.&c.Co, 80, 92

619

Goodfellow v. Mayor of N.Y. 295, 644
657

Goodrich v. N. Y.C. & H. &c.Co., 365
538, 649
Goodwinv. Balt. & O. &c. Co., 122
Goold v. Chapin, 33

Gorham z. Vill.of Cooperst., 161, 513
Gorton z. Erie R. Co., 104, 622
Gottlieb v.N.Y.,L. E.&c,Co. 298, 538
Gould vw, Booth, 180, 516
Grant v. Penn.N.Y.C. &c.Co.451, 708
Gravillev.N.Y.C.&H,Co. 318, 719
Gray v. City of B’klyn, go, 656, 722
Gray v.Sec. Av. &c.Co., 179, 635, 720

Greanyv.LongIsl. *“ 302, 646
: 688, 702
Green wv. Clarke, 21

Green v, Hudson Riv.&c.Co., 64, 671

. Griffin v.MayorofN.Y., 19, 513, 628

Grippenv. N.Y.Cent. &c.Co., 86, 568

608, 622, 704
Griswold v.N.Y.C.&H.&c.Co.361, 690
Grosvenor v.N.Y.C. sf 81
Groth v. Washburn, 262, 571

Guillaumev. Gen. Transp. Co., 298
Guillaumev. Hamb.A.Pack.Co., 92
Guitermanv.Liv.N.Y.&P.S.5.** 238
Gumbz, 23d St. &c. Co., 358, 669, 695

714

Hackfordyv. N. ¥.C. & H.&c.Co. 134
642, 713

Hagar v. Clark, 225, 599

Hagenlocherv.Cn.Isl.&c.Co.292, 693
Haggerty v. B’klynC, ‘ 167, 695
Hahnke vw. Friederich, 468, 598, 687

Haight v. BrisBin, 280, 297, 601
Hale v. Smith, 227, 680
Haley v.sEarle, 51, 608, 635
Hall v. Germain, 437, 797, 729

Hallahan v, N.Y.Lake E. &c. Co., 305

698
Ham vw. Mayor of N. Y., 197, 504
Hamilton v. McPherson, 46
Hamilton. Third Av.&c.Co.131, 674
Hance v.Cayuga & Sus. “ 45, 634
Hancock v, Rand, 274, 596
rxvili

Hankins v. N.Y. Lake E, &c.Co., 475
522, 531, 532

Hannon wv. Agnew, 282, 518
Hardy wv. City of B’klyn, 263, 657
Harley v. Buffalo Car Mfg. Co.,- 472
540, 691

Harr v.N.Y.C. & H. &c, Co., 360, 536
Harriganv.City of B’klyn383, 386, 715
Harrington v. City of Bnffalo, 393, 705
Harrington v, Keteltas, 269, 601
Harris v. Northern Ind. &c. Co., 33

Harris v. Panama &c. Co., 156, 695
Harris v. Perry, 2590, 588
Harris v. Tumbridge, 237, 591
Harris v. Uebelhoer, 214, 608, 632

652, 680

Hart v. Direct U.S.Cable Co., 248, 707
Hart v. Grennell, 394, 605
Hart v.Hud.Riv.Br.Co., 232, 240, 643
644, 679, 691, 717

Hart v. Naumburg, 399, 540, 612
Hart v. Rensselaer & S, &c. Co., 16
703, 712

Hartwig v. Bay St.S.&L.Co., 382, 611
Harty v.Cent.&c.Co.of N.J., 94, 585
586, 623, 630, 731

Harvey v.N. Y.C.& H.&c.Co. 257, 535
Hathorn wv. Ely, 46
Havens v. Erie R. Co., 90, 624
Hawley v.North.Cent.R.Co. 236, 648
Hay v. Cohoes Co., 10, 581
Haycroft v.Lake Sh. &c.Co., 178, 646

Hayesv. Bush & D.Mfg.‘* 308) 541
Hayesv. Consol. Gas ‘* 481, 734
Hayes uv. 42d St. &c. 284,679,685
Hays v. Miller, 194, 581, 643

Hazmanv. Hob.Land & Imp.Co., 121

551, 619, 706
Heacock v.State of N.Y. 320, 495, 583
Heaney v.Lg.Isl.&c.Co. 347, 569, 625
Hedges v. Hud.Riv.&c.Co., 116, 660
Heeg v. Licht, 232, 589, 724
Heganv. Eighth Av, &c.Co., 24, 564

Hegemanv. Western ‘ 22, 444

450, 540, 549
Hegerich v. Keddie, 293, 721
Heinemann w, Heard, 169, 679

Henry v.Stat.Isl. &c.Co., 234, 536, 538
684

 

TasBLe oF Cases.

Herrington v, Vill. of Lansingb., 341

505
Hexamer v. Webb, 301, 529, 566
Hibbard v.N.Y.& E.&c.Co., 25, 547

Hickenbottom v. Del. L. &c.Co., 393

669, 690, 695
218, 292, 308, 318
439, 524, 540, 541
Hickok zv. Vill.of Plattsburgh, 26, 509
Higgins v.Waterv. T.&c.Co. 105, 547

Hickey v Taaffe,

Hildreth v. City of Troy, 300.
Hilly. Ninth Av. &c. Co., 337, 682
Hill v, Syr. B. ss 207

Hilsenbeck v. Guhring, 439, 587, 634
Hinds v. Barton, 43, 580, 662, 699
Hinesv, City of Lockport,55, 122, 513
Hoagv. N.Y.C, & H. &c.Co., 345, 640:
646.

Hoffman(Henry)v.N. Y.C.&H &c.Co.
248, 259, 528, 731

Hoffman (John) vz. N.Y.C.& H. &c.Co,
217, 548, 619

Hoffman zw Un, Ferry Co., 109, 117
125, 128, 190, 572, 635, 652

Hofnagle wv. N.Y.C. & H, &c.Co., 140:
645, 707

Hogan zy, Cent, Park &c.Co., 405, 633.
Hogan wv. Smith, 4II, 539
Holbrook v. Utica & Schen.&c.Co, 20
548, 642

Holden v, N. Y.Cent.&c.Co., 138
Holsapplev.Rome,W. ‘ 246, 558
Homer v. Everett, 268, 585, 651
Honegsbergerv.Sec,Av.&c.Co., 52
632

Horey v. Vill. of Haverstraw,4o1, 509:
Houghkirk v. Del. &H.C.Co,, 269, 569:
Hover wv, Barkhoof, 97, 516, 692
Hoyt v. Long Isl, &c. Co., 150, 689:
Hoyt v.N.Y.Lake E. ‘* 377, 699, 718
Hubbell v. City of Yonkers, 315, 510
Hudson v Ocean $.S.Co.0f S.342, 612
Huerzelerv.Cent.C.T.&c.C0.466, 653
Hughes». Merc.Mut. Ins.Co.,139, 596:
Hulbert v.N.Y.Cent.&c.Co., 87, 548

650
Hulett v, Swift, 56, 596
Hume vw Mayor of N.Y., 112, 210

507, SIL
TaBLE OF CASES.

Hun z. Cary, 235, 600, 665
Hunt v. Mayor of N.Y., 337, 508
Huntv.Mich.So.& N.Ind.&c.Co., 73
Hunter v.Cooperst.&S.V. “115, 350

413, 616, 617

Hunter v. N.Y. Ont, &c.Co., 369, 536
682

Hussey v. Coger, 351, 530, 531

Hutson v. Mayor of N.Y.,
Hyatt v. Taylor,

18, 512
92, 596

Thl wv. 42d St.&c.Co., 110, 130, 632

653, 673,-675
Indig v, Nat City Bk., 230, 593
Ingallsbee v. Wood, 56, 596

‘Trelandzv. Osw. H.&S.P1.R.Co. 23, 566

643
Irvine v. Wood, 124, 588
Irwin v. N.Y.C. & H.&c.Co., 160
Isaacsv. Third Av. “e 108, 206

528, 554
Isaacsonv.N.Y.C.& H.&c.Co., 275

Isham v. Post, 470, 591
Ivory v.Town of Deer Park, 367, 447
507, 509, 511
Jacksonv,.Sec.Av.&c.Co., 109, 259
547, 648

Jaffe v, Harteau, 144, 586
Jaquiss v. Hagner, 204, 604
Jenks v. Quinn, 461, 489
Jenney v. City of B’klyn, 387, 507
583, 687

Jenningsv. Grand Tr. R, of C., 420

Jennings v. Van Schaick, 333, 527
567, 661

Jetterv.N. Y.& H.&c.Co., 53, 59, 57!
599. 652, 724

Jewhurstv. City of Syracuse,331, 512
Johnson v. Belden, 108, 633
“Johnson v. Friel, 123, 519

Johnson v. Hud. Riv. &c.Co., 32, 642
Johnson v. Netherl.Am. ‘* 381, 447

533

Jones v. Morgan, 263, 592.
Judson v. Vill. of Olean, — 370, 504
: 531, 539
Jutte v. Hughes, 184, 583

 

xxix

Kaarev. TroySteel & IronCo.466, 614
Kain vw. Smith, 231, 260, 526, 602

613. 649, 713
Kalbfleischv.Long Isl, &c.Co.307, 630

Kanev, N. ¥. N. Hav. “© 441, 647
671, 718
Kaveny v. City of Troy, 333, 512

Keane v. Vill. of Waterford, 429, 653
688
Keating v.N.Y.Cent.&c.Co, 120, 552

Keegan v. Western ee 16, 37

537, 679
Keeney v.Grand Tr.&c.Co., IIE
Keller v.N.Y.Cent. a 38, 550

552, 642, 643, 695
Kellogg v.N.Y.C.&H.&c.Co., 228, 622

675, 696
Kellogg v. Sweeney, 106, 719
Kelly v. Doody, 369, 527
Kelly v. Long Isl. &c, Co., 112, 645

Kelly v. Manhattan R. Co., 350, 548
Kelly v. Mayor of N. Y., 20, 504
Kelly v.N.Y.&Sea B.&c.Co. 336, 685
Kelly v. Tilton, 66, 508
Kelsey wv. Barney, 21, 571
Kelverv.N.Y.Chic.&St.L &c.Co. 414
579, 635, 662

Kennedy v. Mayor of N.Y., 207, 509
576

Kennedy v.Roch.&B.&c.Co. 432, 693
Kennedy v. Ryall, 185, 526
Kenney v. N.Y.C.&H.&c.Co. 409, 660
Kenyon zw. ee ‘6 222, 156
586

Kern v. DeCastro & D.&c Co. 406, 540

Kerr v. Mount, 48, 599
Kesselv. Butler, 133, 566, 670, 694
Kiley v. West. Un. Tel. Co., 337

Kilroy v. Del. & Hud.C Co., 391, 533

Kimball v Connolly, 67, 707
King v. MacKellar, 276, 603
King v N.Y.C.&H.&c.Co., 181, 205

529, 595, 599 691, 702

Kinney wv. City of Troy, 333, 512
Kirkpatrick v.N.Y.C, & H.&c.Co. 228
537, 694

Kissenger v.N.Y.Harl.&c.Co. 144, 569
624

Knight v.N.Y.Lake E.&2.Co. 291, 580
SEX

Knowlton v.Prov.& N.Y.S.S.Co., 131
Knupfle v. Knick. Ice Co., 243, 725
Kosmak v. Mayor of N.Y. 372, 511
‘Kranz v. Long Isl. &c.Co., 396, 537
Kummel v. Germania Sav.B.421, 594
Kunz @. City of Troy, 314, 644, 653

La Croy v. N.Y. Lake E. &c.Co. 446
534, 612, 658

Lafflin v. Buff.& Southw.&c.Co. 323
549, 553» 697

Lake v. McElfatrick, 465, 603
Lambv, Camden & A. &c. Co., 106
‘ 558, 680
Lambert z. Stat. Isl. &c. Co., 194, 635
Lamming v. Galusha, 456. 715
‘Landers v. Stat. Isl. &c. Co., 132, 723
‘Lane v. Town of Hancock, 476, 486
501, 511

‘Lanigan v. N, Y. Gas L. Co., 198, 629
Laning v. N. Y. Cent. &c. Co. 118

535, 648
Lannen v. Alb. Gas L. Co., 100, 605
629, 707
Larkin v. O’Neill, 384, 605

‘Larmore v, Crown P. I. Co., 301, 585
Laubheim v. De K.N. St. M., 327, 685
‘Lawrence v. Am. Nat. Bk., 136, 637
Ledyard v. Jones, 16, 517, 674
Lee v. Troy Cit. Gas L. Co., 286, 629

635 714
Lee v. Vacuum Oil Co., 416, 719, 721
‘Leeds v. Metrop, Gas L.Co., 263, 695
Lehr v. Steinw.& H.P.&c.Co. 380, 618

649, 651
Lent v. Howard, 258, 603
Lentv.N. Y.C.& H.&c,Co.389, 650, 651
Leonard v. Collins, 193, 536, 542, 613
Leonardz. Col. St. Nav.Co., 240, 729
Leonard v. N.Y.A.& B.&c,Tel.Co., 92

608, 674
Levy v. Great West. &c. Co. 114, 622
Lewisv.N.Y.LakeE. ‘* 398, 569
Lewis v. State of N. Y., 280, 495, 497
Lilly v. N. Y.C. & H. &c. Co. 329, 530

539» 705
Link v. Sheldon, 458, 604, 654, 689
693, 700
Linkhauf v. Lombard, 462, 598

 

TaBLeE oF CasES,

Litchfield v. White, 15, 600
Littlewood v. Mayor of N.Y. 131, 258

663, 728
Livingston v, N.Y.C. & H.&c.Co., 223

Lloyd wv. Mayor of N. Y., 13, 495
503, 512
Locke v. State, 470, 495, 496

Lockwood v. N,Y.Lake E. &c.Co. 289.

676, 695
Loeb uv, Hellman, 239, 5901
Loftus v. Union Ferry Co., 243, 548
685, 697

Lond. &c. Ins.Co. v.Rome &c.Co. 482
Loop wv. Litchfield, 93, 596, 606-
Lorillard v. Town of Monroe, I9, 504.

Losee v. Buchanan, 126, 589
Losee v. Clute, 93, 126, 597
Loughlin v. State of N.Y., 319, 497

Lowery v. B’klyn & N.&c.Co.218 565
Lowery v, Manhattan R. ‘* 292, 706
Lowery v. West. Un. Tel. ‘* 162, 707

Luby v. Hud. Riv. &c. ** 27, 694.
Lynch zw. McNally, 207, 637
Lynch v. Mayor of N.Y., 218, 510

Lyon wv. Manhattan R. Co., 474, 716

Lyons z. Erie R. Co., 148, 666, 673.

675, 696
McAlpin v. Powell, 195, 586:
McAndrew v. Whitlock, 129
McCabe v. Fowler, 243, 601

McCafferty v.Spuyt. Duyv. &c.Co. 165
529, 582
477s 577; 694-
708, 720
McCall v. N.Y. Cent.&c.Co,, 138, 623.

McCaldin v. Parke,

McCann wv. Sixth Ave. ‘* 373, 632
McCarragher v. Rogers, 390, 649-

691, 698
McCarthy wv. City of Syr., 105, 501

503, 506, 511, 629, 662
McCarthy v. Lake Sh. &c.Co. 222, 644.

McClain v.B’klyn City “ 366, 570

648, 690°
McCormack v.Pennsyl. + 291
McCosker v. Long Isl. «* 241, 531
McCotter v. Hooker, 18

McCue v. Nat. Starch Mfg.Co. 472, 541
McDonald v.Long Isl.&c. 368, 553

618, 619
TABLE OF CAsEs.

xxxi

 

McDonald v. Mallory, 225, 729
McDonald », State, 417, 691, 692
McDonald wv. Western &c. Co., 61
McDougall z. State of N. Y., 336, 663
McGaffin v. City of Cohoes, 210, 722
McGarry v. Loomis, 171, 567, 639
McGovern w. Cent. Vt. &c.Co. 397, 648
649

McGovern v.N.Y.C. & H.&c.Co., 185
645, 652, 672, 673

McGrath v. N. Y. C. & H. &c. Co., 158
172, 624, 661, 702, 725

McGuire v. Spence, 266, 626, 632
McIntyre v. N.Y.Cent.&c.Co.,74, 650
McKeever v. N.Y.C. & H. &c.Co., 258
688

McKinney z. Gr. St. &c.Co., 314, 692
McKinney v. Jewett, Rec’r, 263
McMahon v. Mayor &c., 57, 511, 639
673, 729

McMahon. Sec. Av.&c.Co., 215, 565
McNally v. City of Cohoes, 419, 506
723

McNamarav. N.Y.C.& H. &c.Co , 459
647

McPaddenv. N.Y.Ct.&c.Co., 101, 549
McQuigan z. Del.L. ‘© 395, 426
611, 702, 716

McRickard v. Flint, 356, 605, 630, 718
McSherry ~. Vill. of Canandaigua, 428
506, 512, 724

Maas wv. Mo.K.& T.&c.Co., 238, 600
Macauley v. Mayor of N.Y., 188, 656
Mackay v,N.Y.Cent.&c.Co., 63, 624

Madan z. Sherard, 207°
Madden v.N.Y,C.& H.&c.Co.112, 621
Maginnis v. Bs 129, 568, 621
Magnin v. Dinsmore, 142, 168, 197

Maher v.Cnt.P.N.& E.&c.Co. 183, 632

Mahlerv.Norw.& N.Y.Tr. ‘* 64, 723
729

Mailler v. Expr.Prop. Line, 166, 572
635, 697

Mairsv. Manh. R. E, Ass., 262, 583
Mali wv. Lord, 83, 525
Malone v. Hathaway, 174, 542

Manahan v. Steinw.& H.P.&c.Co 411
686

Mangam7z.B’klyn &c.Co. 81, 486, 639

 

Mannv. Del.&Hud.&.Co.205, 267, 535
Manning v. Hogan, 227, 526, 683, 703
Manning. Pt. Hen. I. O.Co,, 268, 673

719
Mark v. Hud.Riv. Bridge Co., 309, 731

Marsh wv. Chickering, 302, 539, 611
Marsh v. Hand, 388, 527, 587
-Marstaller v. Mills, 479, 732

Martin v. Dry D.E.B. &c.Co., 269, 723
Martin v. Farnsworth, 119, 526, 598
Martinv. N.Y.N H. &c.Co., 312, 693
Martin z. Pettit, 371, 567

Massothv. Del. & H. C. Co., 177, 681

718, 725

Masterson v.N. Y.C.& H. &c.Co., 242
565, 640

Masterton. Vill. of Mt. Vernon, 152
508, 670, 695

Matter of Att’y Gl.v.Contl.L.1.Co- 275
Matteson v.N.Y. Cent. &c.Co. 65, 689

692

Mattesonv. N. Y.C. & H. &c. Co., 149
220

Mattisonv. N.Y.Cent. —“* 149, 220
Maverickv. Eighth Ave. ‘ 72
552, 697, 703

Maximilian v. Mayorof N.Y. 169, 504
Maxson z. Del. L.& W.&c.Co. 351, 664
Mayor of Alb. v. Cunliff, 10, 502, 509
603, 712
9; 503
505, 583
Mayor of Troy v. Troy & L. &c. Co.,
119, 661, 726, 727

Mead v. Stratton, 251, 588, 662, 672
Mehanv.Syr.B.& N.Y.&c.Co.209, 648

Mayor of N.Y. z. Bailey,

Meheganv.N.Y.C.&H. ‘ 411, 621
Mentzv.SecondAve. ‘ 53, 88
570, 626

Merc. Mut. Ins. Co. v.Calebs, 33, 726
Merrick v. Van Santvoord, 59, 597
Merritt v. Earle, 48
Merritt v. Fitzgibbons, 307, 571
Merritt v. Todd, 37, 636
Metcalf v. Baker, 149, 669, 670, 719
Metz. v. Buff. C. & P. &c.Co., 150, 526
Michaelsv. N. Y. Cent. &c.Co. 51, 558
Millard v. Brown, 64, 674, 696
Miller v. LongIsl. &c. Co., 200
Xxxil

TABLE oF CASES.

 

Miller v, OceanS.S.Co., 375, 553
685, 701
Miller v. Steam Nay. Co., 19, 558, 706
Miller v. Woodhead, 316, 587
Millimany.N.Y.C.& H.&c.Co. 183, 553
Mills v. City of B’klyn, 55, 503, 511
Milnorv.N.Y. New Hav. &c. Co., 132
Miltonz. H. Riv. Steamb. Co. 73, 635
Minick wv, City of Troy, 238, 628, 713
Mitchell v. N.V.C.& H.&c.Co.178, 622
Moebus v. Herrimann, 331, 627
Moeller v. Brewster, 438, 613
Monk v. Town of New Utrecht, 316
507, 508, 516

Montgom. Co.Bk. v. Alb. City Bk , 15
591, 593, 712
137, 661, 679
244, 249, 272
578, 725
Moore v. Goedel, 61, 630, 687
Moore v. Palmer, 381

Moody v. Osgood,
Moore v. Gadsden,

Moore v. Westervelt, 34, 45,517
Morange v. Mix, 98, 604, 681
Morgan w. Crocker, 170, 592, 731

Morgan v. Hud. Riv.O. &1.Co., 452

534, 684
Moriorty v. Bartlett, 294, 721
Morrell v. Peck, 256, 627, 700
Morris v. Brown, 346, 519

Morrisv. N.Y.C.& H.&c.Co., 326, 554
Morrisonv.B’way & 7thAv.&c.Co.429

650, 651

Morrison v. Erie R. Co., 143, 609
639, 650

Morrisonv. N.Y.C & H. &c. Co., 173
681

Morton v. Thurber, 246, 529
Motelz. Sixth Ave. &c. Co., 294, 632
Mott wv. Consumers Ice Co., 208, 716
Mowrey v Cent. City R’y, 128, 652

Moyerv.N.Y.C. & H.&c.Co., 256, 584

Moylanv,SecondAv. ** 425, 552
616
Moynahan v. Wheeler, 372, 571

‘Mulhadov, B’klyn City &c, Co,51, 552

618, 7or
Mullen v. St. John, 149, 682
Muller v. McKesson, —206, 332, 530
598, 637

. Murphy z. Bost.& Alb. ‘“

 

Mulligan v. N.Y.C R.&c.Co., 427, 554
Mungerv.Tonawanda ‘‘ 13, 586, 731
253, 538
Murphy wv. City of B’klyn, 290, 381
‘ 506, 511, 578
Murphy v. Comm’rs of Emig. 47, 516
525

Murphy v.N Y.C & H.&c.Co.256, 379
533» 539: 613, 673

Murphy v. Orr, 280, 571
Murray v. N, Y. Cent.&c.Co., 85, 579
724

373» 5395 542, 663
675

Mynardzv. Syr. B.& N.Y. &c. Co., 198

Murray zv, Usher,

Nash v. N.Y.C, & H. &c. Co. 410, 623
Nat. Bk. of Com.v. Nat. Merch. Bk. Ass,
139, 637

Negus wv. Becker, 479, 733
Nelson v. Vill. of Canisteo, 296, 512
Neu uv. McKechnie, 279, 666, 674, 706
Neubauerzv.N Y.Lake E &c.Co., 303
531

N.J.Steamb.Co.v.Mayor, 340, 652
N.Y. & BLS.&L. Co.v. City of b’klyn,
202, 506, 576

N.Y. Lake E. &c, Co. v. Atl. Ref. Co.,
427, 595, 629, 633, 706

Newall v. Bartlett, 358, 577
Newson wv. N. Y. Cent. &c. Co. 49, 584
630

Nicholas v. N. Y.C. & H. &c. Co., 260
Nichols zv. Sixth Ave. &c. Co., 78, 552
: 617

Nicholson zv. Erie R. Co., 91, 585, 622

Nims v. Mayor of Troy, 159, 508
Nivenv. City of Rochester, 223, 511
643, 656
Nolan v, B’klyn City & N.&c.Co., 248
617, 685
Nolan v. King, 285, 566, 567
Nolton v. Western &c. Co., 25, 546
658, 722

Noonan v. City of Albany, 229, 583
Norris v. Kohler, 89, 571, 682, 701
Northrop z, Syr, B. & N.Y. &c.Co., 72

O’Brien vw. Fitzgerald, 479, 734
TABLE oF CASES.

OceanicS.N.Co,v.Comp.Tr.Esp., 454
577) 727
246, 528
628, 685
Odellv. N.Y. C. & H. &c. Co. 388, 611
Odell v. Solomon, 294, 588, 605, 662
Ogley wv. Miles,
O'Hagan z. Dillon, 219, 697
Oldenburgzv.N.Y.C.& H.&c. 402, 647
Oldfieldv. N.Y. &Harl.&c.Co , 23, 38

Ochsenbein v. Shapley,

695, 696, 713
Olive v. Whitney Marble Co., 310
527, 533, 687
Olmsted v. Dennis, 225, 518, 676

O'Mara v. Hudson Riv. &c. Co., 80
567, 653, 686, 695

O’Neilv. Dry D.E.B. &c.Co., 427, 565
692
O’Neillv. N.Y.Ont. & W. &c. Co., 63
143, 363, 376, 581, 690, 699, 705
Ormiston z. Olcott, 243, 601, 602, 603
Ouderdirk v. Cent. Nat. Bk., 385, 594
Owenv. Hudson R. &c.Co., 65, 608

Pack v.Mayor of N.Y. 12, 16, 504, 688
Page v. Krekey, 461, 600, 665
Paine v. Vill. of Delhi, 364, 722
Painton v, North.Cent.R.Co. 237, 538

539

Pakalinsky v.N.Y.C. & H.&c.Co., 236
621, 624

Palmer v. Dearing, 272, 651

Palmer zv. Del. & Hud. C. Co.387, 650
Palmer v. Holland, 126, 591
Palmer v. Lorillard, 3
Palmerv. N.Y.C.&H.&c.Co., 349, 624
Palmer zv. Pennsylvania Co., 346, 548

Palmeriv. Manhattan R.Co., 448
546, 554, 699

Pantzar v. Tilly FosterI. M. Co., 293
536, 613

Pardee v. Fish, 162, 636
Parker v. Conner, 273, 604, 638
Parker v. Stroud, 289, 636, 663
Parrott v. Knick. Ice Co., 106, 572
635

Parsons v.N.Y.C.&H.&c.Co., 352, 551
619, 659

Pattison v. Syr. Nat. Bk., 230, 594

466, 541

 

xxxiii

Pauley v. Steam Gauge & L.Co., 434

537, 658
Paulitschyv.N.Y.C.& H. &c.Co.306, 553
Paynev. Troy & Bost.&c.Co., 239, 645
Pearsallv. West.Un.Tel.Co. 4o1, 557

559, 661
Pease v. Smith, 166, 636, 665
Peil v. Reinhart, 420, 586, 630
683, 700

| Penn v. Buff. & Erie &c, Co., 115, 133

People v. Ames, 65, 517
People ex re? Chamberlain z, Forrest,
282, 518
People ex ref Loomis v. B'd of T..Aud.
216, 510
People ex ref McMillan v. Board of

Superv., 459, 731
People ex ref Nash v. Faulkner, 328

517

Perkinsz. N. Y. Cent. &c.Co., 40, 487
642, 649

Perkins v. State of N. Y., 483, 496

Pettengill v. City of Yonkers, 369, 513
Phelps v. Wait, 50, 571, 712
Phillipsv.N. Y.C.& H.&c.Co.,422, 640
: 686, 707
Phillips v.Rens, & Sar.&c.Co.115, 616
Phillips v. Terry, 72, 690
Pierrepont (Town of) v. Loveless, 203
529, 564, 572, 724

Piperv. N.Y.C. & H. &c. Co., 145, 540
Planky N. Y.C. & H. &c.Co. 164, 536

612, 614
Platez.N. ¥.Cent. &c.Co., 76, 727
Platty. Richm. Y.R.  ‘“ 332
Platz v. City of Cohoes, 258, 513
Ploedterll v. Mayor, 140

Polerz. N.Y.Cent.&c. Co,26, 579, 651
Pollett v. Long, 143, 363, 708
Pomfrey v. Vill. of Saratoga Spr., 315
512, 698, 725

Port Jervis (Vill.of) v. First Nat. Bk.,
282, 727

Potterv. N.Y.C.& H. &c.Co., 458, 530
534, 535

Pouchery N.Y.Cent.&c.Co., 116 660
Poulin v. B’dway & 7th Ave. &c. Co.,

167, 552
Powell v. Myers, 7
XXXIV

TaBLe or Cases.

 

Powelly. N.Y.C.& H.&c.Co., 340, 623
Powers v. Manhattan R. Co., 387, 674
Powers v.N. Y.Lake E.&c, Co.288, 611
613

Prendegastv, N.Y.C.& H.&c. Co, 156
568, 580, 586, 632, 653

Price v. Oswego & S.&c. Co., 122
Probst v. Delamater, 297, 703
Purcell v, Jaycox, 157, 528

Purdy v.N.Y.&N.Hav.&c.Co.166, 580 -

Purdy v.Rome,W.&O. &c. Co.407, 658
Purvis v. Coleman, 34, 595, 634
Putnam v. B’dway & 7th Ave. &c.Co.,

138, 547, 554
Quilty v. Battie, 455, 595, 598, 663
Quimby v. Vanderbilt, 28, 548, 550
Quin vw. Moore, 24, 675, 688, 721
Quinlan v. Welch, 470, 589
Quinn wv. Power, 251, 528

Race v. Union Ferry Co., 464, 549
Radcliff’s Exr. v,Mayor of B’klyn, 13

505, 582
Radway v. Briggs, 73 576
Ramaley v. Leland, 97, 596

Ransom vy. N.Y, & Erie &c.Co. 24, 669
Rathbone. N.Y.C. & H. &c. Co., 468

559
Rathbun. North. Cent. Ry. Co., 123
663
Rawson v. Penn-&c. Co., 113
Raynor v. Selmes, 130, 636
Read wv. Nichols, 363, 376, 705

Read v. Spaulding. 52
Redmond. Liv. N.Y. & P. 8. Co., 107
Reed v. Mayor of N.Y., 286, 715
Reed v.N.Y.Cent.&c. Co. 104, 693, 700
Reed v. State of N. Y., 332, 495, 583
663

Rehberg wv. Mayor of N. Y., 266, 295
657, 701, 725

Reichel uv. N.Y.C.& H. &c.Co0.433, 537
Reid v. Mayor of N. Y., 467, 503, 509
Reid v. Terwilliger, 368, 674
Reining v. City of Buffalo, 306, 715
Reiss v. N. Y. Steam Co. 423, 605, 687
Rembe v. N.Y.Ont. & W. &c. Co., 309
566, 625

 

Remington v. Walker, 294, 601
Renwick uv. N.Y.Cent.&c.Co., 69, 624
Requa wz. City of Roch., 102. §09, 513

683, 724
Rexford v.State of N.Y., 320, 495, 496
Rexter v. Starin, 209, 643
Reynolds v, N.Y.C. & H. &c. Co., 152

681
Riceman v. Havemeyer, 244, 683
Richardson v. N.Y. Cent. &c.Co., 105
568.
Ridellv. N. Y.C, & H. &c. Co., 210:
Rider v. White, 178, 598

Rima vz. Rossie Iron Works, 389, 643
715, 716°

Ring v. City of Cohoes, 224, 422, 513
: 656, 707

Riordan v, Ocean S. S. Co., 405, 536
682

Rittenhouse v. Ind. Line of Tel., 98
676, 687

Roach z, Flush. & N. S. &c. Co., 154
645, 688

Roberts v. Johnson, 154, 551, 689, 713
Roberts uv. Stuyv. Safe Dep. Co., 396

; 592
Robertson v. National 8. S. Co., 466
557

Robinson v. Chamberlain, 60, 77, 518
Robinson v. Chittenden, 192
Robinson v. N.Y.C. & H. &c. Co., 180
422, 640

Robinson v. Ocean, St. Nav. Co., 349
722, 723

Roche vz. B’klynC. & N. &c. Co., 320
693

Rochester (City) v, Campbell, 398
578, 725, 727

Rochester (City) v. Montgomery, 202
657, 727, 728

Roch. White Lead Co. v.City of Roch,
Rodrian v, N.Y.N.H. & H.&c.Co., 409
623

Roemer v. Striker, 473, 529, 582, 696
714

Rogers v. Wheeler, 97, 526, 603
Rollins v, Farley, 299, 582

Rose. Bost. & Alb. &c.Co , 151, 530
TABLE oF CASES.

Rose v. Hawley, 728
Rothz. Buff. & St. L. &c. Co., 62
Rounds. Del. L.&W.&c.Co., 174, 528

, 733
Rosebrooks v. Dinsmore, 72

* Rourkew. White Moss Coll. Co., 381
Russell v. Hud. Riv, &c. Co., 28, 532
Russell v, Vill. of Canastota, 289, 657
Russell Mfg.Co. 7. N.H.S.B.Co., 121
Ryall v. Kennedy, 185, 526, 597, 619
Ryan z. Fowler, 4l, 536
Ryan v. Manhattan R.Co., 392, 549

Ryanv.N.Y.Cent. &c.Co., 63, 363

581, 705
Ryan v. Wilson, 251, 587
St. Peter v. Denison, 153, 581
Salter v. Utica & B. &c. Co., 160, 215

247, 253, 609, 622, 623
624, 625, 700, 702, 719

Salt Springs Nat Bk. v. Sloan, 457
633, 654
Saltus Jz re, 75, 600

Sammon v. N.Y.& Harl.&c.Co, 169
539, 613

Sanford v. Eighth Av.&c.Co., 38, 547
Sanford v. Standard Oil Co., 380, 447
532, 533

Saulsbury vz. Vill. of Ithaca, 275, 428
% 512

Sauterv.N. Y.C.&H.&c.Co., 180
552, 666, 675, 704

Sayre v. State of N. Y., 397, 496
Scarft v. Metealf, 327, 527, 597, 599
Schermerhorn v, Hud.Riv.&c.Co., 78
580

Scheu v. Benedict, 367
Schild v. Cent. Pk. &c. Co., 448, 566
Schmidt v. Steinw. & H. P.R. Co. 445
570, 628

Schneider v.Sec. Av. &c.Cu., 451, 645
691

Schoenwald v. Met. Sav.Bk., 148, 594
Schultz v. Third Ave. &c.Co.259, 554
693, 714

Schwerin v. McKie, 124, 592, 681
Schwierv.N.Y.C.& H.&c.Co, 264, 568
686, 702
238, 322
558, 691

Schwinger v, Raymond,

 

XXXV

Scott v. Pennsylv. &c. Co., 433, 616

623, 630
Seaman v. Koehler, 396, 640, 701
Seaman v. Mayor of N. Y., 230, 509

519; 577
Searles vy, Manhattan R. Co., 303. 309.
451, 708
Second Nat. Bk. v Burt, 273. 598

Seeley v. N.Y.C.& H.&c.Co., 304, 309

708
Seifert v. City of B’klyn, 300, 507
Selden v. Del. & Hud. C. Co., 50, 583
Sewell v, Allen, 5

Sewell v, City of Cohoes, 212, 648

656, 700
Sexton v. Zett, 99 567, 661
Seybel v Nat. Curr. Bk., 135, 638

Seybolt v.N.Y. Lake E.&c.Co.279, 660:

679.

Seymour v. Vill. of Salamanca, 462
59, 657

Shaw v. Jewett, Rec’r, 248, 622
Shaw v. Sheldon, 313, 542, 611, 658
Shea v. Sixth Ave. &c.Co., 169, 528

Sheehan v, Edgar, 155, 571, 627, 669.
670, 694, 695, 696:

Sheehan v, N. Y.C.& H. &c. Co., 267
271, 533

Sheehy w. Burger, 170, 571, 648
Sheldon v. Hud. Riv. &c.Co., 23, 55
699

Sheldon v. Sherman, 94, 589
Sheltonv. Merch. D T. Co., 157
Shepard wv. Buff. N. Y.&c.Co., 66, 414
579, 634, 635, 662

Sheridan v. B’klynC.& N. &c.Co., 68
552, 617

Sherman v. Del. L.&W.&c.Co.,325, 694.
Shermanz. Roch. &Syr. &c.Co., 28

53!

Sherman. Hud. Riv. &c, Co., 176
Sherry v.N. Y¥.C.& H. &c.Co., 317
646.

Shields v. " . “© 44g, 612
Shipman vz. Bk. of StateofN.Y., 413.
633

Shipsey v. Bow, Nat. Bk., 159, 593
Shook wv. City of Cohoes, 335, 644
Silberstein v. Houst.St. &c.Co., 372
661, 705,
Xxxvi

Silliman v. Lewis, 117, 572, 635

Silsby Mfg. Co. v. State, 483, 496
Simmons v. Everson, 401, 224, 578

7133
Simmons v. Law, 67
Sipple v. State of N. Y., 293, 496

Slater v. Jewett, Rec’r, 205, 244, 531

. 534

Slater v. Mersereau, 175, 529, 675
681 6096

Sloanv. N. Y. Cent.&c.Co., 102, 692
Sloane v. Elmer, 175, 717
Slocum v, Fairchild, 8

Sloman v. Great West. R. Co., 184

559, 660, 686

Smedis v. B’klyn & R.B. &c. Co., 252
622

Smith v. Brit. & N. Am. S. P. Co., 247
554

Smith v. City of Rochester, 221, 503
Smith v. Mayor of N. Y., 182, 511
Smith v. N, Y. Cent. &c.Co., 4o, 659

Smith v. N.Y.C.& H. «382, 682
793

Smithy N.Y.& Harl. 32, 532
549, 706

Smithv.N.Y.&Osw.M. ‘ 170, 565
580, 662

Smith v. Rathbun, 213. 714
Smith v. Smith, 452, 637

Solomon wv. Manhattan R. Co., 311

313, 616
Spencer wz. State, 458, 496, 698
Spier v. City of B’klyn, 464, 508

Spinnerv.N.Y.C.&H, &c.Co., 183, 580

635
Splittorff v. State of N. Y., 331, 497
627
Spoonerv. B’klyn C.&c.Co., 134, 609
619

Spoonerz. Del. L. & W.&c Co., 360
‘ 586, 645, 716, 731
Sprongv. Bost. & Alb. &c. Co., 150

187, 610
Staalv. Grand St.& Newtown &c.Co.,

329, 671
Staatsv. Hud. Riv. &c.Co., 67, 579
Stackus v. N.Y.C.&H.&c.Co.228, 643
Starbird v. Barrons, 79, 951 703

 

 

TaBLE oF CASES.

Steers v. Liverp.N. Y.& P.S.S.Co.,147
Steinweg v. Erie R. Co., 95, 558
Sterger v. Van Sicklen, 445, 585, 587
Stevens v. Armstrong, 14, 578
Steyes v. Osw.& Syr.&c.Co., 31, 622
Stewartv.B’klyn Cross T, &c.Co., 264
554
Stewart v. Morss, 220, 604
Stewart v. Stone, 421, 592, 682 .
Stillwellv. N.Y.Cent. &c.Co., 57, 693
Stilwell v. Priest, 246, 716
Stinson v, N.Y. Cent. &c. Co., 54, 584
659, 660
Stoddard v. Vill. of Saratoga Springs,
419, 722
Stonev.Dry D. E.B. & B, &c.Co., 362
652, 680, 717
Stone v. State, 463, 495, 496, 697
Stone v. Western Transp.Co., 79, 531
589
Storrs v. City of Utica, 27, 504
Stouterv. Manhattan R, Co., 422, 689
Stringham v. Hilton, 344, 350, 531

538, 540
Stringham v, Stewart, 5, 298, 350
611, 721
Stroher z. Elting, 283, 713

Strohm v, N.Y. Lake E. & W. &c. Co.,
281, 322, 689

Stuberv McEntee, 474, 537, 613, 728
Sturm, Atl. Mut. Ins. Co., 171, 640
Sullivan v.Tioga&e.Co., 351, 533. 608
Sutherland zv, Troy & Bost. &c. Co.,
410, 613, 684, 705

Sutton v.N.Y.C.& H.&c.Co., 181, 585
Svenson v. Atl.MailS.S.Co., 147, 533
683

Swarthout. N. J. Steamb. Co.. 113
659, 669

Sweeney v. Berl.& J. Envel. Co., 302
538, 611

Swiftv. Pacific Mail S. S, Co., 323
Swift v. Stat. Isl. R. T. &c. Co., 400

585, 632, 652
Swords w. Edgar, 157, 576
Sylvester v. Crohan, 464, 636

Taber v. Del. L. & W. &e.Co 201, 649
650
TABLE OF CasEs.

XXXVI

 

Tallman v.Syr.B.&N.Y.&c.Co.85, 579
Tannerv.N.Y.C.& H. 334
Tarbell v. Royal Exch. Sh. Co., 341
Taylor v. Atl. Mut. Ins. Co., 74, 598
Taylor v. B’klyn El.&c.Co., 385, 719
Taylor v. City of Cohoes, 318, 326
735

Taylor v. City of Yonkers, 319, 326
432, 512, 704

Teetsv. Vill. of Middletown, 326, 719
Terry v. Jewett, Rec’r, 226, 551, 650

675

Thomas v. Henges, 437, 577
Thomas v, Winchester, 14, 606, 707
Thompson v. Fargo, 115
Thompson v.N. Y.C.& H.&c.Co., 343
569, 622

Thorpe v.N.Y.C.& H.&c.Co.,221, 526
547, 55°

Thurber v.Harlem Br.M.& F.&c.Co.,
53, 163, 570, 608 632, 652

Tice v. Munn, 277, 670, 675
Tierney v.N.Y.C, & H.&c.Co., 220
Tilley v. Hudson Riv. “6 42, 48
672, 674, 695

Timlin v.Stand.OilCo., 414, 587, 588
Tinney v. Bost.& Alb.&c.Co. 130, 535
684

Tisdale v. Del. & Hud.C. Co., 366, 701
Titusv.Pres &c.Gr.West. Trnp.Road,
165, 526

Toddz.City of Troy, 166,394,512,724
Toles v. Adee, 242, 636
Tolman v, Syr. B.& N.Y. &c. Co., 287
388, 625, 634, 717

Tonev. Mayor of N.Y., 195, 504
Totten v. Phipps, 129, 586, 651
Tousey v. Roberts, 357, 630, 651

Town of Pierrepont v. Loveless, 203
529, 564, 572, 724
Townsend uv. N.Y.C. & H.&c.Co., 143

547, 674
Tozer v. N.Y.C.& H. &c.Co., 322, 689
Tracy v. Kuntz, 112

Tracy v.Troy & Bost. &c. Co., 80, 580
Traversv. Eighth Ave. &c. Co., 75
716, 717

Tremain v. Cohoes Co., 10, 581, 662
664

 

Tucker v.N.Y.C.& H.&c.Co., 401, 633
/ 681
Turner (Geo.D.) v.City of Newburgh
341, 513

Turner (Julia) v. City of Newburgh,
338, 505, 513, 644, 657, 689

Twogood v. Mayor of N.Y., 305, 694.
724

Twomley v. Cnt.Pk.N,& E.&c.Co, 190
609, 698

Ulrich v.N. Y.C.& H.&c.Co., 329, 660
Unger v, 42d St.&c.Co., 126, 570, 688

717
Union Nat. Bk.v.Sixth Nat.Bk.96, 637
Uransky v. Dry Dock &c.Co.,376, 670

: 714

Urquhart v. City of Ogdensburg, 265
284, 507

Valentine v. Austin, 402, 638
Van Buskirk v. Roberts, 54, 550

Vanderbilt v. Richm Trnp.Co.12, 525°
Vanderwiele v. Taylor, 179, 583
Vandewater v.N.Y.& N.E.&c.Co.,457

569
Van Leuven v, Lyke, 10, 598
Vann wv. Rouse, 277, 587

Van Rensselaer v. Alb.& W.S.&c.Co.
168, 589

Van Schaick v. Hud. Riv. &c, Co., 96
619

Van Wycklen w. C. of B’klyn,378, 691
Veeder ». Vill. of Little Falls,297, 513
Vick v. N.Y.C. & H, &c. Co., 278, 532
Victory v. Baker, 184, 585,
Vill. of Port Jervis . First Nat.Bk. 282
727

Viner v.N.Y.Alex.G.& W.S.S.Co.,121
Voak v. North.Cent. &c.Co., 216, 568
Vogel v.Mayor of N.Y., 268, 505, 510
529

Volans v. Owen, 211, 672
Volkmar v. Manhattan R. Co., 453
566, 680, 686, 689, 702

Vosburgh v. Lake Sh.& M.S. &c. Co.,
276, 536

Vroman v, Rogers, 442, 636
XXXVili

TABLE OF CasEs.

 

Waffle v. N.Y.Cent. &c.Co., 131, 583

Waitev.N.Y.C.&H. + 343
Waldelev. <“ sc 278, 312
693

Wall v. Buff.Water Works Co.,29, 714
Wallace v. Cent. Vermont &c Co , 463

611, 614, 697, 703
Wallace v. Vacuum Oil Co., 424, 716
Walsh v.Mayor of N.Y., 281, 504, 509
Walsh v, Trustees of N. Y.& B’klynBr.

281, 327, 515, 516
Ward. Atl. & Pac. Tel.Co., 198, 566

731
Ward vw. N, Y. Cent. &c. Co., 107
Ward v. Vanderbilt, 47, 550
Warner:z. Erie R. Co., 83, 536

Warner v. N.Y.Cent.&c.Co., 100, 130
564, 568, 681, 700, 718
Wasmer v. Del.L.& W.&c.Co. 230, 565

609, 725

Watson v. City of Kingston, 355, 506
702

Watsonv. 42d St. &c. Co., 273, 664

Webbv. Rome, W.&O. &c. Co., 117

581, 705

Webberzv. Herk. & M. St. &c.Co., 339
664

Webber z. Piper, 339, 539

Weberv.N.Y.C,& H.&c.Co , 153, 186
568, 623, 644, 688
Webster v, Hud. Riv. &c.Co., 79, 640

Websterv. Rome, W.& 0.‘ 362. 555
608, 619

Weed v.N.Y.& Harl. ‘f 50, 716
Weed v. Panama “28, 550
658

Weed v. Vill. of Ballston Spa.220, 513
626

Weeks v.N.Y.N.H.& Hart, &c., 202
554

Weet v. Vill. of Brockport,26, 428, 511
Wehle v. Conner, 171, 193, 658, 675
Weilv, Dry D. E. B. &c. Co., 383, 640
Weisser v. Denison, 19, 242, 633
Welch v. N. Y. Cent. &c.Co. 133, 646

Wells v, as “39, 659
Wells v. Steam Navig. Co., 8,9, 12

17, 605, 660
Welsh v. Germ. Am Bk., ‘208, 633

 

 

Welsh z, Wilson, 300, 566
Wendell v. Mayor of Troy, 85, 508
Wendellv.N.Y.C.& H.&c.Co.267, 632
Wenzlick v. McCotter, 250, 578
Werle v. Long Isl. &c. Co., 291, 617

685

Westcott v. Fargo, 167, 557, 714

’ Weston v. City of Troy, 465, 626, 680

Westonv.N.Y.Elev. &c. Co., 209, 548
Weyerhauser v. Dun, 296, 591, 653
Wheeler, Oc. St. Nav. Co., 406, 558
Whelan wv. Lynch, 163, 676, 701
Whitakerv. Eighth Ave, &c. Co., 125
526, 565, 694

White v. Old Dom, S. S. Co., 308, 475
606

White v. Wittemann Lith.Co. 439, 541
614

Whiteh.Tr’p.Co. v. N. J.Steamb. Co.,
125, 572, 635, 669, 670, 695

Whitford v. Panama &c.Co., 39, 729
Whiting v. City Bank of R., 224, 593
Whitney v. Cammann, 462, 602
Whitney v. Martine, 257, 604
Whitney v. Town of Ticonder., 418
511, 566, 714

Whittaker v. Del. & Hud. C, Co., 415
535, 649

Whitworth v. Erie R. Co., 250
Wibertv.N.Y, & Erie &c. Co., 20, 558

Wiedmer v. N.Y Elev. ‘* 359, 570
686
Wilcox v. Rome, W.&0O. * 82, 623

Wilds v. Hud. Riv. “al, 49, 622
Wilkins v. Earle, 98, 106, 596, 688, 699
Willets v. Hatch, 440, 603
Williams v, Del. L. & W. &c. Co., 370
422, 614

Williams v. Hays, 480, 732, 733
Williams v. Vanderbilt, 47, 550, 669
Willis v. Long Isl. &c. Co., 62, 617
618

Willy v. Mulledy, 225, 586, 630
Wilmerding v. McKesson, 311, 601
Wilson v. City of Troy, 455, 504, 644
670

Wilson v. Knapp, 197
Wilsonv. N.Y. C & H. &c. Co.,, 283
Wintringham wv. Hayes, 481, 732
TaBLe oF CasEs.

XXxix

 

Witbeck v. Holland, 101, 559
Wiwirowski v. Lake Sh. & M.S.R.Co.,
403, 683, 717

Wohlfahrt 7. Beckert, 270, 606, 689
Wolf z. Kilpatrick, 300, 587
Wolfkiel v. Sixth Ave.&c.Co., 77, 552
642, 649

Woodv.N.Y.C,& H.&c.Co., 196, 651
793

Woodard v.N.Y.Lake E.& W.&c.Co.,
324, 623

Wooden v, West.N. Y.& P.&c.Co., 412
673, 730

Woodman z. State of N. Y., 420, 497
Wooley v. Grand St. & Newt. &c. Co.,
237, 565, 628, 698

Woolley v. Baldwin, 304, 518
Wooster v. 42d St. &c. Co", 122, 200
565, 664

 

Worster v. 42d St. &c. Co., 122, 200
565, 661, 664, 680

Wrightv. N. Y. Cent. &c. Co., 44, 205
530, 535s 612

Wright v. Sanders, 70, 566
Wyckoff v. Queens Co. Ferry Co.,
128, 550, 558, 605

Wylde v. North.R.R. of N.J., 132, 552
618, 713

Wyllie v. Palmer, 401, 527
Wynnv. Cnt.Pk. N. & E. &c. Co., 450

22, 551, 555, 650, 731

Youngv.N.Y.Lake E.&c. Co. 328, 624
Young v. West. Un. Tel.Co., 178

Zimmerzv. N.Y,.C.& H.&c.Co.463, 557
673
Zinn vw. N. J. Steamboat Co., 118
 

 

xl TasBLE oF CasEs,
B.—DEFENDANTS’ NAMES,
(For Citations of pages, see previous Table. See page 738.)
Sub nom.,
GOVERNMENTAL.
The State. Villages.
Counties, Quasi-Mun. Bodies.
Towns. Public Officers.
Cities.
MERCANTILE &c,
Carriers. Corporations (cont’d.)
By Rail. Ice Co's,
Elev. R. R. Ins,“
Rec’rs of ‘ Iron ‘+
Steam « Manuf. Co’s,
Street #6 Oil ay
“6 Stage. Road s6
“ Vessel. Miscell.
Ferry Boat. Individuals.
pee es : Assignees.
. Ship. Contractors.
ie oe Executors,
- oo Innkeepers.
TEES Officers of Co’s,
Corporations (Miscell.) Trustees.
Banks. Warehousemen.
Gas Co’s, Miscell.
The State.

The State ads. ‘ Ballou | The State ads, McDonald
“s sé Benedict es ae McDougall
‘ ae Bidelman sie we Perkins
ee ae Bowen ae as Reed
a ae Chisholm we a Rexford
ee es Donahue “e «s Sayre
ee oe Eastman “s “8 Silsby Mfg. Co.
es fs Gates He se Sipple
“ - Gibney es ee Spencer
“ “ Heacock ee ou Splittorff
“ “ Lewis se ee Stone
“ a Locke “s a Woodman

Loughlin
 

‘TaBLE or Cass. xli
j Counties.
Cayuga ads, The People | Niagara ads. Ely
Towns.
Deer Park ads. Ivory | New Utrecht ads, Monk
Hamlin Getty | Randolph <e Bryant
Hancock Lane | Ticonderoga ‘“' Whitney
Hebron Glasier | Walkill ee Embler
Monroe , Lorillard | Waterford es Clapper
Cities.

Albany ads. Coonley | Lockport ads. Gillrie
ss “ Cunliff ee e Hines.

“ “ Noonan | Newburgh «“ Gillespie:
Amsterdam “ Folsmbee es fe Turner
Auburn ba Clemence | New York “ Atlantic Dock Co,
Brooklyn, ‘“ . Atlantic Dock Co. ts ie Bayley
AOS cae _ Bieling a 7 Bullock

es as ' Cavin ns i Cohen

fe ee Danaher “ a Dickinson

ad 7 ’ Donnelly “ “ Duryea

ss se Gray “ #s Ehrgott

ss se Hardy es ae Galvin

« es Harrigan at ee Goillotel’

ss es Jenney a a Goodfellow

ts as Mills tf “f Gritfin

as a Murphy a << Ham

as « NLY.& B. Saw M. Co. # Hume

us “ Radcliff's Exrs ‘s fs Hunt

as “ Siefert * ee Hutson

* es Spier “s « Kelly
Buffalo se Breil ss te Kennedy
te fe Brusso as “ Kosmak

“e «« Buff. & H. Tpk. Co. ts “ Littlewood

ee ae Curry fs ee "Lloyd

ne st Harrington gs = Lynch

“ “ Reining se ss Macauley-
Cohoes' “ Byrnes “ #s McMahon.
ch ee Carpenter as fs Maximilian.

. ') 6“ McGaffin “ ‘.  -N. J. Steamb. Co.

te se McNally “ “ Pach:
“ ' “ Platz “s “ Ploedterll*
oo! “ Ring “ “ Rehberg"

“ 66 : Sewell “ec “a Reed:

“ és ‘Shook “os “ Reid!

“ “ » Taylor ae ae Seaman
Elmira ss Diveny a as Smith
Kingston “ Dubois es att ’ Tone
se ‘s Watson oe cs Twogood

 
xlii

New York ads.

“é ee
Ogdensb’gh «
Oswego cs
Rochester ‘+

oe oe
“e oe
ce oe
Syracuse “
ac “e
ee ce
ee sé
oe “e

Troy eC

cid 4c

Ballston Spa
Brockport
Cambridge
Canandaigua

os
‘

“cc

Canastota
Canisteo
Cooperstown
Delhi

Goshen
Hammondsport
Haverstraw
Hornellsville
Ithaca

Board of Ed.

ss T’n Aud, oe

Agnew
Ames
Baldwin
Barkhoof
Booth
‘Conner
Connolly
Crozier
Dennis
Faulkner
Fish
Forrest
Hanford

TaBLe OF CasEs.

Cities—continued.

Vogel | Troy ads.
Walsh “ re
Urquhart ss +f
Baldwin es “
Niven ee as
Roch. Wh. L. Co. re
Requa ee «6
Smith “ ss
Barton | Utica se
Cain ” es
Cummins
Jewhurst | Yonkers ee
McCarthy “ ee
Hildreth s ee
Kaveny
Villages.
ads. Weed | Ithaca
fa Weet | Lansingburg
ee Fischer | Little Falls
ue Atwater | Middletown
se Garratt ee
es McSherry | Mt. Vernon
se Russell | Olean
fe Nelson | Peekskill
or Gorham | Plattsburgh
ae Paine | Salamanca
a Bishop | Saratoga Sp.
- Ayres ee
ey Horey | Waterford
‘ Gage | Whitehall
£6 Conrad
Quasi-Municipal Corp.
ads. Donovan { Com’rs of Emig.

People

 

 

Trustees of Bridge <«‘

Public Officers.

ads, Hannon
a People
ee Woolley
as Hover
s Gould
ee Wehle
s Kimball
se Bartlett
ae Olmsted
" People ex rel
pe: Bassett

re People ex re/
se Browning

Jacobs
Jones
Kiehl
McAlpin
Miller
Mix
Peck
Remsen
Slocum
Westcott
Westerwelt

Whitney

Kinney
Kunz
Minick
Nims
Todd
Wendell
Weston
Wilson
De Forest
Evans
Storrs
Hubbell
Pettengill
Taylor

ads. Saulsbury
ve Herrington
a Veeder
se Allison
ee Teets
“ Masterton
ic Judson
ef Corcoran
ee Hickok
a Seymour
es Pomfrey
ee Stoddard
es Keane
ce Bly

ads. Murphy

Walsh

ads. Garlinghouse

a8 Ledyard
ok Evarts
ae Donovan
ee Clark
ey Morange
re Morrell
ss Brookfield
ee Fitzpatrick
oF Acer
eC Moore
a Bennett
Taste oF Caszs.

xliii

 

Common Carriers.

All cases against corporations or individuals, who follow the occupation of
carrier are inserted here, without regard to the question whether they are
sued on a transaction growing out of that relation,

Brooklyn
Manhattan

Of Erie R. R,

Jewett

“cc

“ce

ee

«

ee

Balt. & Ohio

sé

Boston & Alb.

“

ads.

“c

“ce

oe

“6

«e

oe

ads.

ce

Brooklyn & R. B.
Buffalo C. & P.

&
ce
ee
ee
oe

“te

& Erie

N.Y.& Erie

N.Y.& Phil.

&N.F.

ads.

By Rail.
(1) Elevated R. R.

Taylor
Baker
Boyce
Brady
Butler

Card
Connelly
Ferry
Kelly
Lowery

Manhattan

ee

N.Y.

“

(2) Receivers of R. R.
OF Long Is. R. R.

De Forest
Fuller.
McKinney
Shaw
Slater
Terry

Corbin
Erhardt
Sharp

“ce

Miscell,
Barney
Smith

(3) Steam R, R.

Bostwick
Canfield
Goodwin
Booth
Carpenter
Flike
Murphy
Rose
Sprong
Tinney
Smedis
Metz
French
Penn
Bradley
Shepard
Appel

Brooks

 

Buffalo & Southw. ads.

“« &S.L.

ee ee

oe we

“e oe
Camden & A.

‘Cayuga & S.

+e

ads.

ads.

se
“ec
“

ads.
a

‘CentralofN.J.

“cc

‘Central Vt

ee

‘Coney Isl. & B. boa
\Cooperstown&s, V. *
‘Del. & Hud. C.Co, «

Lyon
Palmeri
Powers
Ryan
Searles:
Solomon
Stouter
Volkmar
Weston
Wiedmer

Becht
Donnegan
Dobiecki
Durkin
Glushing

Cardot
Kain

Lafflin
Brown
Burtis
Fero

Roth
Lamb
Brown
Hance
Flynn
Marty
McGovern
Wallace
Hagenlocher
Hunter
Abel
Arnold
Cullen
Dolan
xliv

TasLeE or Cases.

 

Del.& Hud.C.Co, :ads.:

“ ‘.
Lise
ti
of
“6
us
“
“oe
és les
“6

Del. Lack, & W.

Elmira C, & U.
Erie

; ON
ae :
<a“ y

ue

ee

Steam R. R,—continued.

Draper
Filbert
Genet
Houghkirk
Kilroy
‘Mann
Massoth
Palmer
Selden
Tisdale
Whittaker
Borden
Cone
Corcoran
Curtis
Dale

Dye
Eaton
Finnell

“cc

a
“
ae
“oe

oe

“

' « Hickenbottom

McQuigan
Maxson
Rounds

Sherman
Spooner

- Taber
Wasmer
Williams
Dwight
Blair
Burrows

’ Chapman
“© Con.F.Ins.Co.
a“ Christ
Dyer
Dyke
» Eaton

“se ats

ads, F. & M.Nat.Bk.

16

ae

an?

‘Floyd ©

Gibson

-Gorton | _

Havens

> Lyons -

Morrison

: Nicholson
Steinweg
Warner
Whitworth

See also N.Y, Lake E.& W.R.R.Co,

 

Fitchburg

‘ads,

Flushing & N. S, .“

“oe
Grand Trunk

Great Western
ty

Hudson River

“

ae
oe
se

sort
se”
ae

Babcock
Day.
_ Roach.
Condict
Jennings
Keeney
Levy
Sloman
Austin’
Button
Ernst
Green
Hedges.
Johnson
Luby
Oo” Mara
Owen
Russell
Schermerhorn
Sheldon.
Sherman .
Staats
Tilley
Van Schaick
Webster
Wilds.

(See also N. Y. Cent. & H.R.)
Lake Sh.& M.S. ads.

Lehigh Valley ©
Lewiston
Long Island

y

Babcock
Ford
Geismer
Haycroft :
McCarthy
Vosburgh
‘Wiwirowski''
Derrenbacher
' Cott
Bedell
Dalzell
Eckert
Feeney
Greaney '
Heaney '
' Hoyt
Kalbfleisch
~ Kelly
Kranz
McCosker
McDonald
 

 

TaBLe oF CasEs. xlv
Steam R, R.—continued.

LongIsland ~ ads; | Miller ‘| N. Y. Central ‘.zds.') \.: Murray
as ee ‘Werle , ae “6 Newson
es 7 Willis : ee fae Perkins

Memphis&C. “ Germ.F.1.Co. ! “ “ Plate

‘Mich. Southern = ¢* ‘Bissell ; eed se > Poler

“&NI Hunt . seu “s Poucher
Missouri K.& T.’ « Maas : Be “se Reed
Mohawk & H. ‘Brown : a“ “ Renwick

_ Newburgh D.&C. * Dolan : eee ae Richardson

N.Y. Central ¢ « Alden | fea se Ryan
és Taek Barker es “ Sloan
se es Beisegel ss ees Smith
s ee Bellinger | fé fs Stillwell
se Sf Bills sf “ Stinson
ee ee Bissell , eg ts Waffle
se oe Boldt 6c. ce Ward
re e Bowen ca ss Warner
fe a Brace ' st & Welch
ee ce Bradley ee 8s Wells
es a Brickner * ef es Wright
“ 6c Brown | N.Y.Cent.& H.R. * Acheson
es es Buel : nt se Barry
as es Burnell ‘ se «© Bartholomew
es “ Chapman : sg ce Besel
6s & Cole: ae « Brassel
ss es Colegrove * ee §s Breen
#6 ae “ Cook: cs “ Brickell
6 fe Cragin : “ ee Briggs
“ ee Deyo! “ ce Bucher
#6 ee Dickens } a us Byrne
sf ee Downs ! a a Calligan
“6 “ Field. “ ac Carr
“ & Filer, W. T.: u pats Casey
“ « EH M:! “ ee Cleghorn
se “ Grippen : fe a6 Collins
ce oe Grosvenor’ ts st Connelly
“ ee "Holden. is a ‘Coppins
at ee ’ Hulbert: a Cordell
« “ Keating. “ “ Cosgrove
© fs Keller as tf Coughlin
ee es Laning, a os Cox
ef st * McCall: ss # Cranston
oe £8 McIntyre: a fe ‘Culhane
ae a McPadden’ 8 i. Dana
és ee ‘Mackay ee) se Davis
46 “6 ‘Matteson sey te De Graaf
se sf Mattison, se ae » Disher
as ee Michaels’ 166 wigict ‘Dowling
xlvi TABLE OF CASES.

Steam R, R.—continued.

N.Y.Cent.& H.R. ads. Dwinelle | N.Y.Cent.& H.R. ads, Paulitsch
ae st Fairfax es at Phillips
as ae Flinn a ee Piper
“c “ Gale | “ me Plank
ae ae Gardinier ae “e Potter
at ae Goldberg se a Powell
“e at Goodrich ef a Prendegast
ae ss Graville ae st Rathbone
“ “ Griswold “ as Reichel
ee ee Hackford we ae Reynolds
#s ae Harr as ee Ridell
ais “ Harvey ae “ Robinson
te es Hoag ce we Sauter
&s “© Hoffman (H.) ae as Schwier
se Be ts (J-) as ee Seeley
ae as Hofnagle ae as Sheehan
“ se Irwin “s a Sherry
ss as Isaacson £6 te Smith
ss se Kellogg ss a Spinner
ee ae Kenney ae ee Stackus.
se ss Kenyon ee ne Sutton
es se King | se ss Tanner
ie Bes Kirkpatrick we ee Thompson
“ se Lent’ ee as Thorpe
ee «6 Lilly . “ ea Tierney
“ “ Livingston se es Townsend
ae fe McGovern ss ae Tozer
66 as McGrath “ es Tucker
“ “ McKeever : au es Ulrich

4 “ McNamara : “ we Vick
ee ee Madden ae se Waite.
ts € Maginnis as es Waldele
“ oe Masterson ss se Weber
ee ss Matteson, “ a Wendell
us s Mehegan “ “s Wilson
“a A Milliman “a ee Wood
“ 7 Mitchell “6 ae ‘Zimmer
“ “ Morris (See also Hudson River.)
ws Morrison | N.Y.Chic.&St.L. ads. Kelver
s ss Moyer |} N.Y. & Erie “« Blackstock
“ ae Murphy “ as Corwin
ss a Nash “ “ Hibbard
“ “ Nicholas “ “ Ransom
- es Oaell # ce Wibert
“ as Oldenburg | N.Y. & Harlem « Baulec
as ‘ Pakalinsky oo “ Edgerton
a es Palmer as ee Edwards

 

“ “ Parsons “ “ Gonzales.
TABLE OF CaSES. xlvii

 

N.Y.& Harlem = ads.

“a of

(See also Erie.)
N.Y. &N.E., ts
N.Y. & New Hav. ‘*

“ “c
“ 6c
v7 &“

sc a“

N.Y.N.H. & Hart. “

N.Y. Ont. &W. “

“ac “cc

ac “sé

N.Y.& Osw.Mid. ‘“

Steam R. R.—continued.

Jetter
Kissenger
Oldfield
Sammon
Smith
Weed
Alberti
Berrigan
Blaiser
Boyle
Brewer
Bushby
Byrnes
Davis
Debevoise
Ellis
Frace
Gottlieb
Hallahan
Hankins
Hoyt
Knight
La Croy
Lewis
Lockwood
Neubauer
Powers
Seybolt
Strohm
Woodard
Young

Vandewater
Chapman
Colegrove

Dininny
Milnor
Purdy
Archer
Carpenter
Kane
Martin
Rodrian
Weeks
Hunter
O'Neill

Rembe -

Smith

 

N. Y. & Rock. B. ads. Mulligan
N.Y. &Sea Beach “ Kelly
North. Cent. as Fredenburg
my - Hawley

es e Painton

“ ce Rathbun

oc ce Voak
Northern Ind. se Harris
Northern of NJ.‘ Wylde
Oswego & Syr.  ** Price
iY as Steves
Panama ae Harris
et “6 Weed

ee “ Whitford
Pennsylvania a McCormack
“ “ Palmer

ae af Rawson

£6 as Scott
Penn.&N.Y.C.  ** De Vau
ee ae Doyle

a “ Grant

Rarit. & Del. Bay ‘ Beach
Rens. & Sar. - Bernhard
“ce “6 Hart

a “ Phillips
Richm.Y.R.&C. ‘ Platt
Roch. C. & B. ae Alexander
ee ‘© Birmingham

ee ns Kennedy
Roch.N.Y.& Penn.“ Brick
Roch. & Syr. a Clark
“ oF Curtis

we ae Sherman
Rome, W. &O. ‘* Anderson
sé ue Bailey

“ ve Booth

se A Bossout

ee es Holsapple

ss se Lond. &c. Co.

“ o Purdy

ce “ Webb

“ “ Webster

# ee Wilcox
Spuy.Duy.& P.M. “* Ditchett
se < McCafferty
Staten Island i Carroll
se ee Henry

“ i Lambert
) xl viii

Staten Island ads,
Stat. Isl R.T.  «&

‘ “cs

Syr.Bing & N.Y, * &

Syracuse & Utica «
Tioga te
Tonawanda a
Troy & Boston ‘

Albany
Albany & W, S. -
B’way of B’klyn “

“ & 7th Ave, ‘

Brooklyn es
Brooklyn City «

B’klyn Crosstown *
“se oe

“a 6

Brooklyn H.P.&c: «*
Brooklyn& N.  «

6e » 66

Central City
Cent. Crosstown ‘

ads.
‘* Van Rensselaer

TasLe oF Cases.

Steam R, R.—continued.

Landers
Daniels
Swift
Bajus
Dexter
Hill
Mehan
Mynard
Northrup
Tallman
Tolman
Coon
Sullivan
Munger
Baxter

 

Troy & Boston ads,
ce ee
ee ce
ee “

” ce 66

Troy & Lans. ss

Union Pac. ss

Utica & Bl. Riv. ‘+
“« &Schen,

Western <6
ee ae

oc ee

“cc 77

West.N. Y.& Penn,

(4) Street R. R,

Bulger

Dorman’

Dickson
Morrison
Poulin
Putnam

Mangam ,

Black

City of B’klyn
Craighead
Cuming
Cumming
Davenport
Donnelly

McClain |

_Mulhado

Spooner °

Coddington

Cregin ©

Stewart ©
Bahrenburgh |

Dixon

Eppendorf ,

Haggerty
Lowery
Nolan
Roche
Sheridan
Mowrev
Huerzeler

 

Cent.Pk.,N.&E.R.ads.

Dry Dock E.B.&B. «

“ 66

Glen Falls &c. + «©
Grand St. &c. “

ce cc

«se “cc

Harlem B, M. & F; ««

Buffett
Chrystal
Payne
Sutherland
Tracy
Mayor of Troy
Furman
Salter
Holbrook
Hegeman
Keegan
McDonald
Nolton
Wooden

Adolph
Fallon
Hogan
Maher
Schild
Twomley
Wynn
Cohen
Fleckenstein
Martin
O'Neil
Stout
Uransky
Weil
Clark
Hegan
Maverick
Sanford
Traver
Whitaker
Hayes

i Th}
Unger
Watson
Wooster
Worster
‘Butler
McKinney
Staal
‘Wooley
i. .. Thurber
TabLe oF Cases,

xlix

 

Street R. R.—continued,

 

 

' Herkimer &M. ads. i. °. Webber , Sixth Ave, - ads..> Colt
: Houston, W. & P. «¢ Silberstein ee we Drew
Johnstown &c.Co. * Abbott ee He McCann
Ninth Ave. ° te Hill oD . “ee Motel
Prospect P. &C.1. iEtherington fee ce Nichols
Second Ave. ‘¢ 5  Akersloot ee ne Shea
fe i te Coleman Cee as Wolfkiel
fe at Fenton | Steinway & H. P. ‘ Lehr
es ES Furst ce ee Manahan
ee fe Ginna es es Schmidt
es eae Gray | Third Ave. re Barrett
ef «¢ Honegsberger coy > ee Hamilton
es ght Jackson ss OE ee Isaacs
sf if ;McMahon gs Sn’ Schultz
es fs Mentz | Twenty-third Sti .t4.. Corbett
“ $e Moylan : “ce “ Gumb
es e Schneider |! Watervliet T.& R. * ~ Higgins
By Stage.
Bostwick ads, Champion | Knap 1 adse. : Coon
Johnson ¥e Roberts | Murphy Caldwell
: 1 ‘
By Water. . ‘
; (1) Ferryboat. oe
Companies. : Union Ferry Co. ads. Clark
_Hoboken L. & I. ads. Hazman oe * » Delafield
North Shore fe Crocheron es oO Ferris
Queens Co. ge Wyckoff ite eee Hoffman
Richmond Turnp. ‘‘ Vanderbilt we fe Loftus
Stat.Is.R.R. =“ Lambert ¥ rae Race
“ «6 Landers Individual.
4 Power ads. 1’ Quinn
(2) Steamboat. ‘

Companies. N. J. Steamb. ads. Whitehall T. Co,
‘Columbia St. Nav. ads. Leonard fe EO MEE ES Zinn
Eastern Trans. e Carpenter | Norwich & N. Y. T. ads. Mahler
| 4 s “e ' Cooper | Steam Nav. _ ee Miller
Express Prop. Line ‘ Mailler . cee “ Wells

Hudson River St. ¢ ’«! Milton ° __ Individuals.
Lake Champlain T. ‘ Dougan | Allen : ads, Sewall
Neversink St.” & Erwin | Barney te Kelsey
N. H. Steamb. ads. Russell Mfg..Co. | Chapin fF Goold
N. J. Steamb. ., ‘ + .y, ¢: Austin; | ‘Earle gees © heh oh salaley
“ se Blanchard : | Hooker Be McCotter
“ 8 “Caldwell. | Myers 1.) ° ‘ft - Powell
‘s . * (Cleveland : ‘Smith + ie fee Erickson
6 , 6 Dorr; | Torrey. “ i Bissell
a 6e Swarthout ' Whitlock - - McAndrew
1 TaBie oF CASES.

 

(3) Steamship.

Companies. Oceanic S. N. ads, Carlson
Atlantic Mail ads. Svenson ss «Robinson
Atlas ‘se Eldridge es «© Wheeler
British & N.A.R.M.S.P. ads. Smith | Old Dominion a White
Comp. Trans.Esp. ads. Ocea.S.N.Co. | Pacific Mail sy Swift
De Koningl.Ned.S.M. ads. Laubheim | Prov. & N. Y. ‘© Knowlton
Gen’l Transp. «¢ Guillaume | Royal Exch, Ship. es Tarbell
Hamburg Am. Packet ‘* Guillaume | State a Allan
Liverpool, N9Y,&P. ‘* Guiterman Individuals.
. ** Redmond | Kennedy ads, Ryall
7 7 Steers | Law “ Simmons
National ; “ Robertson | Mallory “ McDonald
Netherlands Am. S.N. ‘* Johnson | Roberts “ Van Buskirk
N.Y. Alex. & GW.“ Viner | Vanderbilt “ Quimby
Ocean of Savannah ** Hudson oe “ Ward
ss ef Miller “ “ Williams
«Riordan

(4) Miscell. Vessels.

 

Austin ads, Arctic F, I. Co. | Knapp: ads. Wilson
Barrons: ae Starbird | Lewis ee Silliman
Belden as Chase | Lorillard cs Palmer
Benedict ‘s Scheu | McPherson ee Hamilton
Bryan “American Ins.Co. | Metcalf ae Scarff
Calebs “ Merc.Mut. ‘ Ogden ‘© Amer. Ins. Co,
Chittenden Ks Robinson | Perkins ae Campbell
Clark “s Hagar | Sackrider ae Allen
Clarke ee Green | Starin as Rexter
Daly “ Baird | Uebelhoer “6 Harris
Earle “ Merritt | Waydell ss Gabrielson
Ely as Hathorn | Western Transp. ‘ Chamberlain
Fairchild ae Slocum as se Stone
Greene as Alexander
Of Express Matter.
Amer. Mer. Un. Ex. ads. Coulter | Fargo ads. Thompson
Dinsmore # _Belger ee a Westcott
se ss Cochran | Holland ws Palmer
as ss Coghlan ss “s Witbeck
“ ss ‘Magnin | Merch, Dis. T. Co. * Shelton
“ ‘© Rosebrooks | Sherard ss Madan
Dodd oe Blossom “ Spaulding a Read
Of Messages.
Atl. & Pac. Tel. ads. Ward | West. Un. Tel. ads. Blanchard
Direct U.S.Cable =“ Hart at ss Elwood
Indep.LineofTel. ‘* Rittenhouse . a pee
N. Y. & Alb. &c. 4 Leonard ‘“ is en
United States as Baldwin “s “ Pearsall
“ & Breese = ss Young
TABLE oF CasEs. ti

 

Corporations (Miscell.)

Banks.

Albany City ads. Mont, Co. Bk.
American Nat. ‘* Lawrence
Bk. of N.Y.&c. Clews
Bank of Ohio “Bank of N. Y.
Bk. of St. of N.Y. ‘* Shipman
Bank of Utica es McKinster
ae ae Smedes
Bowery Nat. st Shipsey
ue Sav. 7 Gearns
Central Nat. as Ouderdirk
Chemical Nat. #¢ Frank
City Bank of R. “ Whiting
Erie Co. Sav. “ Appleby
First Nat. — He Crouse

First Nat.B,of P.J.‘' Vill. of Pt. Jervis

Fourth Nat. ae Allen
se ‘« First Nat. Bank
German Am. Welsh
Germania Sav. ‘ Kummel
Manhattan Co. ‘ Denny
Merchants’ ue Allen
Metrop. Sav. a Schoenwald
National City Indig
«Currency ‘' Seybel

Nat.Mer.Bk.Ass. ‘‘ Nat. Bk. of Com.

Ocean Nat. ‘« First Nat. Bk.

Pacific 5 Ayrault

Sixth Nat. ‘¢ Union Nat. Bk.

Syracuse Nat, ‘“ Pattison

West Side as Crawford

Williamsb. Sav. ‘‘ Allen
Gas. Co’s

Albany G.L, ads. Lannen

Consol. Gas es Hayes

Metropol. Gas L. “ Leeds

N.Y. Cs Lanigan

TroyCitizens‘* ‘* Lee
Lee Co’s.

Consumers’ ads. Mott

Knickerbocker ‘ Birkett

sf a Connelly

sf $e Crocker

“ a Knupfle

Parrott

 

Ins. Co's.
Atlantic Mut. ads. Sturm
me mt Taylor
Cont. Fire et Att’y Gen.
Merc. Mut. aS Hughes
Phoenix “ Fayerw.
Iron Co’s.
Crown Pt. ads. Larmore
Hud. Riv. &ce. Morgan
Port Henry es Manning
Rossie Ir. Works “ Rinn
Tilly Foster es Pantzar
Troy Steel & Ir. ‘* Kaare
Manuf. Co's.
Bay St.Shoe & Leath. ads. Cunningh.
p as . Hartwig
Berl. &J. Envel. as Sweeney
Buffalo Car Mfg “ Harley
Bush & Denslow ss Hayes
DeC, & D. Sug. Ref. « Kern
Globe Woolen s Coughtry
Gutta Percha &c. a Buckley
Natl. Sheet Metal es Cullen
“Starch es McCue
New. & R. Lime &c. ‘‘ Driscoll
Star Knitting a Dingley
Steam Gauge& L. *' Pauley
Warr. Chem. & M.  “ Curran
Whitney Marble “f Olive
| Witteman Lithogr. ‘ White
Oil Co's.
Atlantic Ref. ads. N.Y.,Lake E.&c.
Standard ws Cosulich
ce “8 Sanford
$6 ae Timlin
Vacuum ss Lee
“ ee Wallace
Road Co’s.
Oswego Plank ads Ireland
Col, Turnpike “ Eggleston
GW. “ ce Titus
Richm. ae Vanderbilt
lii Tasie or CasEs.

 

Miscell.
Adirondack ads. Collin :
Atl. DredgingCo. | * Benner :
-Buft. Water Works ‘* Wahl |
Cohoes nee Hays °
“ ¢6 Tremain |
Eureka Club a Engel |
How. Mission <‘ — Blaechinska
Individuals.
Assignees.
Cohn ln re
‘Cornell ‘
Dean “* :
White ads. Litchfield
Contractors.
(1) Public.
Baldwin ads. Fulton &c. Co.
Barton ws Hinds
Belden ef Johnson
Brown ss Morris ,
Chamberlain es Robinson
‘Cranford se Covert
Denison ss St. Peter
Donaldson ss French
Freel es Charlock
se sf Johnson
Hogan a Manning
Holloway “City of Buffalo
McConnell es Farley -
Montgomery ** City of Rochester
(2) Private.’
Farley ads. Rollins -
Hartman “ Creed '
King : Nolan -
Mersereau te Slater -
Morgan eS Congreve:
Smith “ Congreve :
“s se Devlin ,
Sweet ue Albert ‘
Vix es French‘
“Executors. i
Blauvelt Jz re ae?
_Brimmer ads. ° Adair ;
-Brisbin st Haight |
Carpenter aes Carpenter:

 

Hud.Riv.Bridge ads. Hart
eg? ce Mark
Manh, Real Est. ~< Mairs
N.Y. Eye & Ear Inf. “ Doyle
N. Y. Steam: es Francis
sf ame Reiss
Phoenix Bridge “ Carlson
Stuyv. Safe Dep. ‘ Roberts
Trinity Church =“ Doyle
Earle ; ads. Earle
Fowler 2 fe McCabe
Haviland es Cocks
Keteltas #4 Harrington
McKesson 6 Wilmerding
Saltus Jz re
Walker sf ‘Remington
Williams: as Croft
Young o Crabb
Iun-Keepers.
Bailey ads, Fiske
Coleman me Purvis
Dam *e , Clifford
Earle a Wilkins
Everett ue Homer
French. ce 2g Bendetson
Leland a Ramaley
Nichols OS _ Faucett
Rand —« Hancock
Stratton. fe Mead
Sweeney e Kellogg
Swift ee Hulett
Taylor a Hyatt
Webb ee Hexamer
Wood! cs Camp
cet “ Ingallsbee
: Officers and Directors of Co's.
Bostwick ads. Brinckerhoff
Burt “© Second Nat. Bk.
Cary Pants Hun
Denison ae Weisser
Fitzgerald 4 . O'Brien
Lombard 7 Linkhauf
Marlor “ Cutting
Rathbun “ Smith

Van Voorhis ee Bostwick
‘PaBLE OF CasES.

laid

 

Trustees. ‘
Cammazin ads, Whitney
Clarkson a De Peyster
Garlock «e Bennett
Gillett “ Bruen
Howard: “ Lent
Lowry as Cook
Mackellar as King
Mills ae Marstaller
Olcott “ “Ormiston
Seaman se Cameron
Smalley at Butler
Wheeler “se Rogers
Warehousemen,
Burns ads. Collins
Doyle ‘« Bk. of Oswego
McKie Ag Schwerin
Meyer ts Claflin
Morgan # Jones
Miscellaneous.
Abendroth ads. Barber
Adams «s Cusick
Adee . Toles
Armstrong ee Stevens
Austin “A Valentine
Babbitt nee Crispin
Baker - ae Courtney
“ ee Metcalf
se a Victory:
Bartlett ae : Blair
ce “af Brophy
“ : “as Moriarty
“ 7 Newall:
Battie - age Quilty
Bauer “68 Brice
Baxter ' Bie Belton:
Beach aes i. Gilbert’
Becker cise «Negus
Beckert us Wohlfart' |,
Blake ~ Mae Carpenter
Brennan + a English
Brewster v4 Moeller
Briggs mas ‘Radway
Brown © Ba Clark
“ oe Dobbins
sere va ri Millard
Buchanan ee ‘ Losee

Burger ‘ Sheehy:

Butler!

oe
Byrne
Campbell
Carter
Chickering
Clute —
Coger

| Collins
f Conner

Cornell’
Crocker
Crohan
Dearing
Dechert
Delamater
Dennerlein

. Dillon

. Dinsmore
’ Doody

Dun

' Duryea

Edgar

oe.
Elmer
Elting
Everson
Farnsworth
Ferris
Fish
Fitzgibbons

. Flack

Flint

’ Fowler’

' Freeman
. Friederich
: Gadsden

' Galushai

 

Genin '
Germain
Gillett -
Gillmore
Goedel
Gordon
Govan
Grennell
Guhring
Hachfield

Burnham
Kessel
Clancy
City of Roch.
Beck
Marsh
Losee
Hussey
Leonard
Parker
Davidson
‘Morgan
Sylvester
*- Palmer
Dubois
Probst
Dennerlein
Clark
O’Hagan
Drinkwater
Kelly
Weyerhauser
Castle
Sheehan
Swords
Sloane
Stroher
Simmons
Martin
‘Blake
~Pardee
Merritt
Demarest
McRickard
Ryan
Fraser
Hahnke
Moore
Lamming
Doupe
Hall

Baird
Drake
Moore
Brennan
Barton
Hart
Hilsenbeck
Dutch.&c, Co.
 

 

liv TaBLe or CasEs.

Hagner ads. Jaquiss | Marston ads. Cregan
Hand ee Marsh | Martine se Whitney
Harteau ee Jaffe | Miles “s Ogley
Hatch es Willets | Miller ss Hays
Hathaway ws Malone | Moore ee Quin
Havemeyer ce Bohn | Morss ef Stewart
$9 “e Riceman | Mount fe Kerr
Hayes ‘¢  Wintringham | Mulledy ss Willy
Hays as Williams | Munn #8 Tice
Heard és Heinemann | Naumburg ss Hart
Heart aS Gardner | Nichols fs Read
Hellman ge Loeb | Norton oe Cullen
Henges os Thomas | Ogden ne Cosgrove
Herrmann e Moebus | O'Neil ee Larkin
Hilton ee Cahill | O'Reilly #8 Bertholf£
ee es Stringham | Orr ae Crown
Holbrook Be Corcoran se a Murphy
Hubbell ck Ferguson | Osgood ee Moody.
Hughes i Jutte | Owen e Volans
Jaycox ef Purcell | Page “ Black Riv. Bk,
Jones cs Fillo |. Palmer te Chipman
Karutz ee Cesar “ ee Wyllie
Keddie ee Hegerich | Parke a McCaldin
Keene ee Barnes | Parker as Dudley
Kilpatrick os Wolf | Paulson es Barker
Koehler te Seaman | Perry Harris
Kohler ee Norris | Pettit sf Martin
Krekey eS Page | Phipps cs Totten
Kuntz te Tracy | Piper . Weber
Lanier fe Frank | Post “ Isham
Lansing fs Ackert | Powell .o McAlpin
Leeret s¢ Anthony | Powers a6 Babbage
Licht ss Heeg | Prentice ae Finnerty
Litchfield ts Loop | Preston a Gates
Lithauer ss Barmon | Priest ms Stilwell
" Long ts Pollett | Quinn “6 Jenks
Loomis “6 McGarry | Rapp ae Dorrity
Lord as Mali | Raymond sie Schwinger
Loveless “ T’n of Pierrep. | Reinhart £6 Peil
Lyke fs Van Leuven | Roberts ¥: Dollard
Lynch if Whelan 7 fe Tousey
McCotter e Wenzlich | Rogers *¢ — McCarragher
McCoy fs Dickson ne ae Vroman
McElfatrick ef Lake | Rohrbach “ Blatz
McEntee es Stuber | Rose ce Chapman
McKechnie s Neu | Rouse a Vann
McKesson £6 _ Muller | Ruckman es Davenport
McNally Es Lynch, | St. John of Mullen
McNeil “ Bartlett | Sanders “ Wright
 

TABLE oF CasEs. lv

Sands ads. Elmore | Ten Eyck ads. Comm’! Bk.
Savage a Barker | Terry es Phillips
Schwerin ss Brooks | Terwilliger i Reid
Selmes fs Raynor | Thomson es Gleadell
Shapley se Ochsenbein | Thurber fe Morton
Sheldon ss Link | Tilton ee Kelley
as se Shaw | Todd ef Merritt
Sherman e Sheldon | Townsend «s Butler
Sloan ‘© Salt Spr. N. Bk. | Trimmer a Briant
Smith sf Barrett | Tumbridge ss Harris
«e as Bond | Usher se Murray

“e a Hale | Van Santvoord ‘‘ Merrick

#8 ss Hogan | Van Schaick ss Jennings

we ee Pease | Van Sicklen as Sterger
ise fe Smith | Varnum fs Comm’! Bk.
Solomon as Odell | Wait es Phelps
Spence ES McGuire | Washburn se Groth
Steele ee Ahern | Welch fs Quinlan
Steinway ee Benzing | Wheeler a Moynahan
Stern ee Bunnell | White ss Rider
Stewart “ Stringham | Wilson f Ryan
Stone sf Stewart se §6 Welsh
Striker ss Roemer | Winchester fs Thomas
Stroud. ef Parker | Witherbee ss Burke
Suydam ee Allen | Wolfe 6 Althorp
Taaffe es Hickey | Wood ss Irvine
Tallman ee Bowman | Woodhead es Miiler
Taylor we Vanderwiele | Zett ss Sexton

 
 

 
PART FIRST.

THE CASES CONDENSED.

Being all the reported cases in Negligence and kindred sub-
jects inthe Court of Errors and Court of Appeals of New York,
arranged in chronological order, with a concise statement of
the material facts, and of the exact points by which each case
is differentiated from every other.

REPORTS FROM WHICH THEY ARE TAKEN.

Official, Johnson. Unofficial, Howard's App, Cases.
Cowen, ae Practice.
Wendell. Keyes.

Till, Abbott’s Practice.
Denio. New Cases.
N. Y. a Crt. App. Dec.

The Transcript Appeals (7 vols.) contain nothing on the subject in
hand which is not reported in some one of the above books.

Silvernail’s Reports, out of some hundred cases on the subject, have
only three or four in which his report is any fuller than that in the regular
series.

Where the same decision is reported several times, the official report
only is cited, except that in a few instances it has been pieced out bya
reference to an unofficial report. As between unofficial reports of the same
2 Cases CONDENSED, {1819.

 

cause, with a few exceptions only that one is cited which gives the best ac-

count of it. (Abbott’s Crt. App. Dec. having been used in preference to
any other.)
Tue Cases FRoM THE OrriciaL Reports,

Johnson, 1806—1823 begin at page 2

Cowen, 18231827 pee TESS “Tees

Wendell, 1828—1841 Re) ee Ae aos

Hill, 1842—1844 ci “ce “ 8

Denio, 1845—1846 ft ERS ig

N. Y., 1847—1894 oh) ETS

The cases from, the unofficial reports are placed among the
others in chronological order, and will be found at the follow-

 

ing pages:
How. App. Cases. paGE. | Abb. Crt. App. Dec. PAGE,
Brownv M.& H R.R. Co. 8 (2d vol.)
P ~ Erickson v Smith, 89
Fillo v Jones, 8
Heese French v Buff. & E.R-R.Co. 84
Bowman v Talman, 89 G City of B’kl
Ernst v Hud. R.R.R.Co., 43 Tere bee, yu 9°
Green 7 Hud. R.R.R.Co. 64
GonzalesyN.Y.& H.  ‘* 92
Honegsberger v 2d Av. ‘“ 52
Keyes, Jetterv N. Y.& H.R.R.Co. 59
Atlant. Dock Co. v B’klyn, 73 Keller v N.Y. C. ee 38
Wright v Sanders, 70 Kelly v Tilton, 66
‘Abie Pe Kimball v Connolly, 67
Beisegel v N.Y.C.R.R.Co. 96 | Abb. Crt. App. Dec.
d vol.
Abb. New Cases, rev ae 75
Stringham v7 Stewart. 35° Mentz wv 2d Ave. R. R. Co. 88
Abb. Crt. App. Dec. Murriyo N.Y.C.  & 85
Northrup v Syr. &c. ‘ 72
(1st vol.) Phillips » T “
Baldwin wv City of Oswego, 58 Dene 2 Eth ys 7
Barmon v Lithauer, 83 Abb. Crt. App. Dec.
Bernardy R.&S.R.R. Co. 36 (4th vol.)
Brookfield v Remsen. 76 Rosebrook vw Dinsmore, 72
BrooksvB.& N.F.R.R. Co, 22 Simmons v Law, 67
Castle v Duryee., 58 Staats v Hud. R. R. R. Co. 67
Coghlan v Dinsmore, 75 Tallman vw Syr. & N. « 85
Cook v N. Y.C. R. R, Co. 75 Traverzv 8thAve. « 75
Dickins v es 52 Ward v Vanderbilt, 47
Drew v Sixth Ave. ‘“ 72 Wendell v Mayor of Troy, 85
1819. ] Casrs ConDENsED. 3

 

THE HEAD NOTES,

The true office of the syllabus is in danger of being forgotten
in this state. As once understood, it was to present in a care-
fully thought out, compactly worded, proposition the rule of
the case. Such no longer seems to be the plan upon which
our head notes are composed. Isolated sentences from the
opinion, which state merely by way of argument well known
principles, settled for many years, are hastily made to stand as
points decided for the first time: Or, a body of ill-digested
facts is pitch-forked into the syllabus, a ‘‘He/d” clapped on as
a tail, and that is called a head note! In several instances of
late, two solid pages of facts in fine type will be found served up
to the profession as the syllabus. It may not be very gracious
to say these things in cold print, but the evil is a growing
one and will only be stopped by serious outcry. Let not our
official reporters be wholly blamed. Under the pressure of
placing a mass of cases speedily before the profession, they
should not be criticised if their head notes are not as carefully
worked up as in days of more leisurely methods. It is also to
be borne in mind that the art of syllabizing is most difficult,
how difficult no one can tell till he has tried it. This task, with
what success remains to be seen, the writer has attempted in
this book. He is painfully conscious that lie has notereached
his ideal, and that having preached to others, he himself may
be a castaway. :

Accuracy and brevity are easily sacrificed on each other's
altars.

PALMER v LORILLARD. 16 Johns, 348.

Defts in error shipped tobacco by vessel of plffs in error,
vessel put to sea, unable to proceed on voyage by reason of a
blockade, put back to port ; later, on demand of goods by shipper
in order to transport them by land to destination, half freight
demanded accompanied by refusal to deliver unless paid; ves-
sel sunk at wharf few days after, from storm and freshet, tobacco
spoilt.

Action, assumpsit on bill of lading, negligence averred.
feild (1) pliffs could not recover in assumpsit under verdict
4 Cass CoNnDENSED. [1820.

 

negativing negligence, (2) had no cause of action, contract of
affreightment not dissolved by blockade, carrier had right to
keep goods so as to carry it out, justified in refusal to deliver
unless whole freight tendered.

Nore.—-As one of the objects of this undertaking is to trace the evolution
of the law of negligence in this state, it became necessary to mention this,
the pioneer case, as well as all others, against carriers to recover damages
for failure to deliver, or delay in delivering, freight, baggage, express par-
cels, telegrams, etc. Limitations by contract of the common law liability
of the carrier having been declared in the Dorr and other cases, not
to be against public policy, the ingenuity of the carrier (and learned coun-
sel) has been exerted to minimize his liability by skilfully devised clauses
concealed in minute type and buried in broad columns. To keep pace with
that, the ingenuity of the shipper (possibly his counsel also,) has been taxed.
to the utmost. The result of this rivalry for fifty years has been an exten-
sion of the law of negligence in an unexpected direction. The student of
the philosophy of law will find much to interest him in observing the steps,
by which that which originally pertained to the law of tort pure and simple,
has come to be inextricably interwoven into the law of contract. For a
fuller explanation of the presence in this book of many decisions which
might not unreasonably be thought to have nothing to do with ‘cases in
negligence” see Preface.

 

. BARTLETT v CrozieR. 17 Johns, 439.

An inferior public officer charged with the duty of repairing highways and
bridges out of specific funds to be collected by him, but being under
the general directions of a superior, is not liable for damages resulting
from an omission to repair a particular bridge.

Piff's mare injured by falling through bridge claimed to have
been negligently allowed by deft to get out of repair; deft
Overseer of Highways, charged with duty of expending money
collected by him for fines in improving roads and bridges in his
district; statute cast on Commissioners of Highways duty of
repairing roads and bridges; overseer to work under their
directions, with no independent duty except in single instance
of expending fines as stated ; no proof of sufficiency of fines.
(Verdict for plff. in Common Pleas. Writ of error on ground,
declaration insufficient to maintain action. Affirmed in Supreme
Court. Reversed in Court of Errors. )

Note.—This case has often been cited in support of other propositions

than that given in the head note. But it really decides nothing else. In
the preface to this book, it is said that all statements of the law which are’
1824-83. ] Cases CoNDENSED. 5

 

obiter dicta, have been rigidly rejected. If an illustration of the wisdom of
this is needed, it will be found in the remarks of Earl J. upon the opinion
of Chancellor Kent in above case, in Hover v. Barkhoof, 44. N, Y. 119. See
also note to Stringham v. Stewart, 100 N, Y, 516,

Bank OF Utica v. SMEDES. 3 Cow., 662.

‘The holder ofan endorsed note who endorses it to a bank for collection
may recover from it the damages he sustains through its neglect to take
steps to charge the endorser if the maker fails to pay.

DEPEYSTER v. CLARKSON. 2 Wend., 77.

A trustee who neglects to keep the trust funds properly invested, is charge-
able with interest commencing six months after his receipt of the monies,

SEWALL v. ALLEN. 6 Wend., 335.

Plff entrusted a package of bank bills to master of a steam-
boat, belonging to a corporation, the charter of which made its
stockholders, of whom defendants were eight, liable individually
as common carriers for the transportation of goods, wares, and
merchandise; master's instructions were not to carry money
(bills?), but an usage had grown up for masters to carry it, and
charge a compensation as their own perquisite; specie was
carried as freight for which the company charged a fixed rate.
Held, defts not liable.

BANK oF Utica v. McKinster. 11 Wend. 473.

Where a debtor transfers an endorsed note to his creditor as collateral
security and the latter gives it to a bank to collect, and the bank fails to
properly charge the endorser upon its non-payment, the debtor may
recover from the bank directly the damages sustained by such neglect.
6 Cases CONDENSED, [1837-38

 

CHAMPION v. Bostwick, 18 Wend. 175.

Where several connecting carriers join in making a through route and
divide the fares received for passage over the whole route, all are an-
swerable for the negligence of the servants of any one.

One of defts in error, wife of the other, thrown from wagon
by collision with stage coach owned by one of the plffs in
error and negligently driven by his driver; the three plffs in
error ran a line of stage coaches between two cities dividing
the route into three sections, each taking a section and furnish-
ing his own stage, horses and driver for that section ; the fares
taken from passengers were, after deducting tolls, divided
among them in proportion to the number of miles of each
section.

(Verd. $800.—New trial denied in Supreme Court im danc—
Aff. in Court of Errors.)

CLARK v. BROWN. 18 Wend. 213.

The parties to this cause were neighbors; Clark’s cattle passed
from his farm to Brown’s through a defective fence, ‘‘ate so
much unripe corn there growing as to kill them”; Clark called
in the fence viewers, who awarded damages to Clark, who
sued in justice’s court on their certificate; Brown denied
liability to repair the fence; Clark recovered in justice’s court,
Brown removed cause to Com. Pleas. Verdict there directed
for Clark ; Supreme Court reversed for want of jurisdiction in
fence viewers to appraise such damages; being affirmed in
Court of Errors by an equally divided court, ‘‘the judgment of
affirmance cannot be considered as settling the law.”

Am. Ins. Co. v. OGDEN. 20 Wend., 287.

The negligence of a master of a vessel resulting in rendering her unsea-
worthy does not preclude a recovery on a policy of insurance for a loss
not due to such neglect.
1838-41. ] Cases CONDENSED. 7

 

ALLEN v. SUYDAM. 20 Wend., 321.

A person who undertakes to collect an unaccepted draft must use due
diligence to present it within a reasonable time for acceptance,

While the damages for neglect to present a draft for acceptance are prima
facie, its amount, they may be mitigated by showing that the draft would
not have been accepted if duly presented, and that the dra-ver was
insolvent when it was drawn.

ALLEN v. MERCHANT’S BANK, 22 Wend., 215.

A bank receiving a bill of exchange for collection in another state is liable
for any damages resulting from the neglect of its correspondent in such
other state to take due steps to give notice of non-acceptance,

Where a bank receives a bill of exchange for collection in another state, it
is not excused because the failure of its correspondent to give notice of
non-acceptance was due to the fact that by the law of such other state
notice of non-acceptance was not necessary.

Only a general usage and practice among banks, or general understanding
among merchants, showing that in such cases the banks undertaking to
collect such bills of exchange were not to be held liable for neglect of
correspondents, or an express contract, can operate to excuse the bank
for such neglect.

Am. Ins. Co. v. BRYAN. 26 Wend., 563.

Where goods are stolen from a vessel, the burden of proof is not on the in-
sured, in an action on a policy insuring against loss by theft and
barratry, to show that the masters and mariners were not neglectful of
their duties,

POWELL v. Myers. 26 Wend., 591.

Son of deft in error, a minor, passenger on steamboat of
plffs in error, master stated in his presence to a companion
baggage safe on board over night, steamboat arrived about ro
p. m.; some passengers stayed on boardali night, the son left
on arrival, the companion stayed; in the morning a written
order was presented to the master for trunk, the companion
said trunk left in his charge, master said the messenger had an
order, companion said, very well; trunk delivered, order forged;
soon after son called for the'trunk. ed, carrier liable.
8 Cases ConDENSED. [1842-44

 

Brown v. Monawk & H. R. RB. Co. 1 How. App. Cas. 66,
and see page 52.

Railroad companies must not build their bridges across rivers so as to cast
upon neighboring land the water or ice of expectable freshets.

SLOCUM v. FAIRCHILD. 7 Hill, 292.

Piffs goods lost through negligence of person in charge of
vessel on lake, goods em roude via canal and lake by a transport-
ation line, an association composed of owners of canal boats
and lake vessels, contract.for transportation entire, carrier had
given notice of restriction of liability. Hed (1) owners of canal
boats and lake vessels jointly liable; (2) An exception of
danger of the lake does not exempt from loss by negligence;
(3) common carrier cannot restrict his liability by notice.

ALEXANDER v. GREENE. 7 Hill, 533.

Acontract of towage at owner's risk does not release the tower from damages
occasioned by his gross negligence.

_  Plff's canal boat towed by deft’s steamboat under contract

“at the risk of the masters and owners thereof”; master
remained in partial charge of her; through negligence of deft’s
pilot on the towing boat, she was injured.

(Nonsuit.—New trial denied by Sup. Court.—Rev. and new
tri. ord.)

Notr.—It should be stated that the Court of Errors was not agreed on
the grounds of reversal, and would not vote on the question whether defts
were common carriers, see page 574; but the foregoing seems to be the rule
of the case, so far as it can be collected from the fact of reversal.

It may be interesting to quote from the contemptuous remarks of Bronson
J. in regard to this decision, in Wells v. Steam Navig, Co. 2 N. Y. 204, a
similar case. He had been a member of the Supreme Court whose non-
suit had been reversed by this ‘* Multitudinous Court” as he calls it. “But
what particular point or principle of law was decided by the court, or what

amajority of the members of the court thought upon any particular
.
a

1845-46. ] Cases CONDENSED. 9

 

question of law, no one can tell. Itappears by the reporter’s head note
that he could not tell; and from his note at the end of the case, it is
apparent that the court itself could not tell ——The case is not authority for
anything ; it could only have been reported for the purpose of.preserving
the reasons of those who delivered opinions.”” When, however, Wells 2,
Steam Navig. Co. came up.again, in the Court of Appeals, 8 N, Y. 375, the
rule was held to be as above stated.

THE Mayor &c. oF N. Y. v. BAILEY. 2 Den., 433.

It is the duty of owners of real property, municipal as well as private, to
keep their premises in such condition as that they shall not be the
cause of injury to aneighbor’s property in ways that common prudence
should foresee.

Where a public work is being carried on for the benefit of a municipality by,
commissioners appointed pursuant to authority from the Legislature,
the municipality is not liable for the negligence of such persons or their

servants.

Defts (in error) dam and other property on Croton River de-
stroyed during a freshet by flood poured on it from the breaking
of a dam constructed for the benefit of the City under acts of
Legislature, through water commissioners appointed by the
Governor ; freshet no higher than should have been anticipated
as probable, City’s dam not constructed so as to be sufficient to
resist it.

(Verdict $62,888. 73.—Aff. by Supreme Court.—Aff. by Court
of Errors.)

BROWNING vt. HANFORD. 5 Den., 586.

The neglect of a sheriff to take into his own possession goods levied upon
by him under execution renders him liable for any loss of them by fire.

 

Denny v., THE MANHATTAN Co. 5 Den., 639.

Where an agent neglects to perform a duty, which by contract his principal
owes to third persons, who are thereby injured, their remedy is against
the principal and not the agent.
10 Cases CONDENSED, . [1847-49.

 

Brown v. MonHawk & H.R. R. Co. 1 How. App.
Cas. 123, and see page 52.

1st Appeal. (Court of Errors) 1 How. App. Cas. 66.

In an action to recover damages resulting from flooding due to the negligent
construetion of a bridge, it is not admissible to ask of a witness not an
expert, how the embankment could have been constructed so as to
protect the neighboring property.

Van LEUVEN v Lykke. 1N. Y., 515.

The owner of a domestic animal is only liable for damages which it
inflicts through viciousness known to him, or while it is trespassing.
PIff had judgment in justice’s court for damages for loss of

calf, eaten by deft’s sow; declaration did not allege that sow

was trespassing, nor that defts had knowledge of any vicious-
ness of the sow.
(Judg. aff. in Com. Pleas——Rev. in Sup. Court——Aff. )

GARDNER v. HEART. 1 .N. Y,, 528.

A person in taking away a hill on his own lot must not do it so negligently
that it will slide on to his neighbor’s lot.

Pff's land, vacant city lots, injured by a slide from deft’s ad-
joining land, due to a negligent undermining ofa hill on it;
Piff's proof as to his title defective.

(Verd. for plff—Aff. in Sup. Court—Rev. new trial granted
because of failure to prove title. )

 

Hay v. THE Conors Co. 2 N. Y., 159.

An owner of land is responsible for the injury done to a neighbor’s prop-
erty by stones being thrown upon it by blasting, irrespective of the
question whether the blasting was done negligently.

Or,

In an action to recover damages to property by stones being thrown

upon it by blasting on adjoining property, a plaintiff need not show that
the blasting was done negligently.
1849. ] : Cases ConDENSED. 11

 

Pltf’s house injured by blasting, deft excavating canal on its
own land, stones from blast thrown on _ plff's house; no
evidence that the blasting was negligently done.

(Non-suit—Rev. by Sup, Crt.—Aff. )

TREMAIN v. THE COHOES Co. 2.N. Y., 163.

In an action to recover damages to one’s property by stones being thrown
upon it by blasting on adjoining land, evidence on the part of defendant
that the blasting was carefully done is immaterial where there is no
claim for exemplary damages.

Plffs house injured by blasting as in preceding case; deft
offered to show blasting carefully done, excluded, no claim
for exemplary damages.

(Verd. for plff—Rev. in Sup. Ct.—Rev. Judg, on Verd. Aff.)

Tur Mayor &c, OF ALBANY v. CUNLIFF. 2.N. Y., 165.

Where a municipality builds a bridge without having any legal authority
to do so, it is not answerable for the damages resulting frum its neglect
to build it properly.

Or,

A municipality constructing a bridge without authority is under no duty
to build it properly.

An architect or builder is only answerable to his employer for his negligent
construction of a private building.

Plff below injured by the falling of a bridge leading across a
basin in deft’s city, bridge built by city by contract, fell because
negligently constructed; built under act of Legislature void be-
cause not passed by*two third vote; bridge had passed into
hands of private corporation for which the city had built it.
Injury, thigh broken.

(Verd. $5009.—Judg. on verdict in Sup. Crt.—Reversed, new
trial granted.)

Note.—The grounds of the principal opinion are stated in the first two
head notes, They would hardly be followed now. Later cases hold that
while a municipality may not be bound to open a street, or build a sewer,
it it does do so, it must do it properly. The third head note is taken from
the opinion of Bronson J. and seems to be the one on which the reversal
should be sustained.
12 Cases ConpENSED. [1849_50,

WELLS v. STEAM NAVIGATION Co. 2 N. Y., 204,

 

Persons engaged in the business of towing are not common carriers.
Persons engaged in the business of towing may make contracts to tow at
owner's risk. ‘

Plff's canal boat, while being towed injured through deft’s
negligence ; towed under contract at the owner's risk ; Circuit
Court ruled out evidence offered by deft to show it had not
been negligent, on ground it was common carrier, and could.
nct exempt itself from liability as common carrier by proving
absence of negligence.

(Verd. for Plff.—Motion for new trial denied in Sup. Crt.—
Rev., new tri. ord.)

VANDERBILT v. RICH. TURNPIKE Co. 2N. Y., 479.

A corporation is not responsible for a willful trespass committed by its
president or other agent by means of its property which is in his charge,
but which it has not authorized to be so used.

Plff’s boat injured by being run into by deft’s boat, collision
intentional on part of captain of deft’s boat, deft’s a
abetting him.

(Verd. for Plff—Aff. in Super. Ct.—Rev. new tri. ord. )

ROCHESTER WHITE LEAD Co., v. Crry or Rocu.
3.N. Y., 463.

A municipality constructing a public work with authority is under a duty to

build it properly.

Plff's property injured by failure of deft’s culvert to carry off
a flood of rain; culvert negligently cone eieteay built by deft
under power be its charter.

(Report for Plff—Jdg. in Sup. Court.—Aff.)

Pack v, Toe Mayor &c, or N.Y. 3. Y., 489.

PIff's son, boy of eight, injured in a blast on deft’s street,
died; only question was as to the admissibility of evidence of
deft’s alderman under the existing law, § 399 of then code.

{Verd. $1,000.—Aff. at Gen. Term. — Rev. new tri. ord.}
1850-51. ] CasEs CONDENSED. 13

 

RADCLIFF’s Ex.v. THE Mayor Wc. OF B’KuyN. 4N. Y., 195.

Where a municipality, in grading a street, does so carefully, it is not liable
for the damages sustained by an adjoining owner resulting from his
land sliding into the street.

MuNGER v. TONAWANDA R. BR. Co. 4N. Y., 349.

Where cattle are trespassing on another’s property the latter owes no duty
to their owner to take care not to injure them.
Plff's cattle escaped from his premises, strayed on deft’s track,
negligently killed by train.
(Non-suit.—Aff. at Gen. Term, —Aff.)

Nors,--This case arose before the act as to fencing.

BuaAkeE v. Ferris. 5 N. Y., 48

Where a person contracts with another to do a lawful thing, retaining no
supervision or control over the manner of carrying out the contract, he
is not liable for the negligence of the contractor in doing such thing.
Plffs horses and carriage driven into unfinished sewer in

New York City, being built for defts by a contractor, who negli-

gently failed to guard the sewer as required by his contract ;

permit to defts from the street commissioner provided that the
licensees should cause proper guards and lights to be placed to
prevent accidents, and should be answerable for any damages
or injuries happening to any person ; an inspector was appoint-
ed by the street commissioner; inspector made the contract
with the contractor to do the work according to specifications
in commissioner’s office ; defts did not know contractor, gave
him no orders.

(Verd. for Plff.—Aff. at Gen. Term.—Rev. new tri. ord.)

Luoyp v. THe Mayor &c. or N.Y. 5 N. Y., 369.

A municipality possessing private powers as owners of property, as well as
governmental powers, owes to persons lawfully pursuing their vacations
the duty of carrying out the former powers with due care,

A municipality must duly guard excavations in its streets,
14 Cases CoNnENSED. {1851-52:

 

PIff’s horse killed, driven at a walk in deft’s street, dark night, °
fell into hole; hole dug the day before by directions of city’s
officer in charge of sewers, left open without a light.

(Verd. for Plff.—Aff. at Gen. Term.—Aff.)

Norte,—Attention is called to the opinion of Foot J. as a pithy, terse,
comprehensive statement of the law. It leaves nothing unsaid, yet says
it allin two pages. There would be much less uncertainty in the adminis.
tration of justice, if judicial opinions were more often limited to concise
declarations of the principles of law which govern thecase in hand, instead
of being elaborated into philosophical and refined treatises.

Coon v. Syracuse & Utica R. R. Co. 5 N.Y., 492.

A master, not at fault himself, is not responsible for an injury to one ser-
vant through the negligence of a co-servant.
PIff, servant of deft, on hand car, run down by stake train, no
fault of his own, negligence of co-servant.
(Nonsuit.—Aff. at Gen. Term.—Aff.)

THOMAS v. WINCHESTER. 6 N.Y., 397.

A seller of a poisonous drug owes to every person, into whose hands it may
lawfully come as a medicine, a duty not to label it with the name of a
harmless drug. 3 /

PIff, poisoned by dose of belladona, taken for dandelion;
latter prescribed by her physician ; bought from druggist as
dandelion ; taken by him from jar so labelled, jar and contents
bought by him from another druggist, latter boughtit from deft;
deft bought the belladona, put it in jar, labelled jar dandelion ;
extracts resembled each other, but could be distinguished by
persons acquainted with them. Injury, sickness.

_.(Verdict $800.—Aff. at Gen. Term.—Aff.)

STEVENS v. AnMSTRONG. 6N. Y., 435.

An owner of premises bordering on a street is not liable to a passer-by for
a negligent use of his property. by one who is not his servant.

PIff passing along street in front of deft’s store, hit by falling

 

 

 
1852.] CasEs CONDENSED. 15

 

box ;. box sold by defts, purchaser sent his porter to get it;
porter used defts’ fall and tackle with their consent, negligent
while lowering. Injury, to head.

(Verd. $450.—Aff. at Gen. Term.—Rev., new tri. ord.)

LITCHFIELD v. WHITE. 7 N. Y., 488.

An assignee for the benefit of creditors is chargeable forloss of the assigned
estate resulting from his negligence.

Mont, Co. Bx. v. ALBANY City Bk. 7N. Y., 459.

When two banks have undertaken the collection of commercial paper, one
acting as agent for the other, which in turn is the agent immediately
employed by the holder, they are not jointly liable to the holder for negli-
gence in such undertaking.

The remedy of the holder of commercial paper, to recover damages result-
ing from negligence in its presentment or protest on the part of a bank
to whom it was sent for collection by the bank whom he had employed,
is only against the latter, and not against the latter’s agent.

Or,

A bank which isemployed by another bank to collect commercial paper,
placed by the holder in the latter’s hands for that purpose, owes no duty
to the latter in respect thereto, but only to its immediate employer.

.

Crry oF BUFFALO v. HoLttoway. 7.N. Y., 493.

A municipality, which fails to require in its contract with a contractor for a
public improvement that he shall properly guard the same to prevent in-
juries to passers by, cannot recover over from him damages it has had
to pay a passer-by for injuries sustained through the absence of a guard.

An allegation of duty in a complaint i is of no avail, unless from the rest of
the complaint the facts necessary to raise the duty can be collected.

Plff having paid a judgment against it for damages sustain-
ed by a person in falling into an unguarded excavation for a
sewer in its street, sued deft, to recover the amount; deft the
contractor with plff, to build the sewer; complaint alleged it
was deft’s duty to guard the excavation, did not allege that it
was provided in the contract that he should do so. Dem. to
compl’t no cause of action.

(Judg. for PIff. on dem.—Rev. at Gen. Term, Judg. for deft.—

Aff.)
16 Cases CONDENSED. [1852-53

 

Lepyarp v. Jones. 7 N. Y., 550.

The neglect of a sheriff to return an execution on or before its return day
renders him liable forits amount.

In anaction against a sheriff to recover damages for his neglect to return an
execution on or before its return day, evidence that the judgment isstill
collectible is not admissible in mitigation of damages.

Hart v. Rens. & Sar. KR. R.Co. 8 N. Y., 37.

When two carriers combine torun through trains over their roads, selling
tickets for continuous passage, proof of delivery of baggage to the first
company is sufficient to sustain an action for its loss against the other.

KEEGAN v. WESTERN R. RB. Co. 8 N. Y., 175.

A master owes to his servant a duty to repair his machine after notice that
it has become defective and dangerous.

The burden is noton a plaintiff to show absence of contributory negligence
on his part.

Plff, fireman on deft’s locomotive; it exploded, out of order
and dangerous, deft knew it; Referee did not find that plff.
knew it. Injury, scalding.

(Rep. for plff $3,500.—Aff. at Gen. T.—Aff.)

NorE.—-As it 1s the aim of this book to show the exact points decided in
each case, it is properto give the second head-note. The court meet the
point that the plaintiff must have known of the danger (which is a reasonable
supposition in the absence of evidence that he did not), by saying that the
referee did not find it and the court could not presume it. Now our courts
would hold that if it did not appear that he did not know, no cause of
action would be made out. The development of the law on this point is
interesting. The law nowis that a plaintiff must show absence of con-
tributory negligence, but it has been reached through several stages, one
of which was, if it does not appear from his case that he was negligent, it
is enough, and now he must show he was not. For one of these stages,
see Bernard v. Rens. & Sar. R. R. Co. 1 Abb. C. A. D, 131,

Pack v. THE Mayor &c. oF N.Y. 8N. Y., 222.
(ist Appeal. 3.N. Y., 489.)
A clause in a contract for work that the contractor shall conform the work
to such further directions as shali be given him by the other party doves

not operate to make the latter liable as a master for the negligence of
the contractor’s servants employed and paid by him,
1853] Casks CONDENSED. 17

 

Plffs house and family injured by negligent blasting by ser-
vants of a contractor while grading a street under contract with
deft.; contract contained nothing making the contractor the
city’s servant unless found in a clause that the contractor should
conform the work to such further directions as should be given
by deft’s street commissioner and one of its surveyors.
Injury, son killed, wife cut and bruised.

(Verd. $1062.50.—Aff. at Gen. T.—Rey., new tri. ord.)

WELLS v. STEAM NAVIGATION Co. 8 N. Y., 375.
(Ist Appeal. 2N. Y., 204.)

Acontract to tow at owner's risk does not release the tower from the
damages occasioned by his gross negligence.

On new trial, court charged in substance that the contract to
tow at owner's risk did not free deft from liability for the gross
negligence of its servants.

(Verd. for Plff.—Aff. at Gen. T.—Aff.)

NotTE.—The use of the word ‘‘ gross’’ should be observed. It should be
remembered that these cases were decided before the arbitrary and fanciful
distinction between ‘‘gross’’, ‘ordinary’ and ‘slight’ negligence was
done away with, in favor of the rational definition that negligence is the
want of care required by the circumstances. The care required may be
great or small.

Hence an accurate statement of the rule at the present time, would be;
a contract to tow ‘‘at owner’s risk” does not exempt the tower from res-
ponsibility for negligence in carrying it out.

Coon v. Knap. 8N. Y., 402.

Where damagesare paid for an accident before recovery from it, anda receipt
is given reciting that such payment is in full for the damages sustained,
parole evidence is inadmissible to show that the accord and satisfaction
so expressed in the receipt was conditional and not absolute,

PIff, passenger in deft’s stage, upset, leg broken; while re-
covering deft offered settlement, paid her and her sister (injured
at same time) $40, took receipt from both for $40 “‘in full for
damages done to us by the stage accident of 13th of June last”;
evidence was admitted that at the time the payment was agreed
on, plff told deft that she would not take #40 in full unless she
18 Cases CoNnDENSED. [1853.

 

should be able to walk within three months ; did not recover so
soon ; court charged that if jury found that there was a condi-
tion attached to the receipt that the $40 was not to be in full
unless plff got well in three months, and deft agreed to that,
the receipt did not bar the action, and they could award her such
compensation for the injury as they found she sustained, de-
ducting the $40.
(Verd, $340—Aff. at Gen. T.—Rev. new tri. ord.)

CAMPBELL v. PERKINS. 8N. Y., 430.

Persons who are common carriers of passengers for hire are liable as such
for the loss of baggage carried by their vessel even though at the time
their vessel and crew were running under charter party with another
carrier from whom the passenger had bought his ticket.

An action against a common carrier for loss of passenger’s baggage is an
action arising on contract.

Piff, passenger, baggage lost while being carried on deft’s
boat ; deft’s had chartered it to another person who had sold
the ticket to plff over his own line and chartered deft’s boat for
that special trip ; deft’s servants had full management of boat.

McCorter v. HOOKER. 8 N. Y., 497.

Action against carrier for neglect to transport goods from New
York to Chicago in the fall, goods not delivered until spring.
‘Question as to when navigation closed for winter, and as to ad-
mission of agents and as to parole evidence of contract.

Hutson v. THE Mayor &c. oF N, Y. 9 N. Y., 163.

It is the duty of a municipality when any excavation is made in its street,
to see that the rest of the street, if not closed, is kept safe for passage.

PLff injured internally by falling of carriage, in which she
was riding, into a chasm in deft’s street ; excavation made the
year before for Harlem railroad, space between its edge and
curb six to twelve feet, gully washed making it dangerous for
carriage to pass ; no contrib. neglig. by her.

(Verd. $645.50—Aff. at Gen. T.—Aff.)
1853-54. | Cases CoNDENSED. 19

 

GRIFFIN v. THE Mayor &c. oF N.Y. 9N. Y., 456.

A municipality is not liable for damages resulting from obstructions in its
streets not placed there by it, and of which it has no notice,
It is negligent to unnecessarily drive over an obstruction in a street.

Plff attempted to pass a carriage in deft’s street, pile of
rubbish, room for one vehicle to pass, drove over pile, upset ;
tubbish put there by citizen in violation of ordinance, not shown
deft had notice of it.

(Nonsuit.—Aff. at Gen. T.—Aff.)

WEISSER v. DENISON. 10N., Y., 68.

A depositor owes his bank no duty to examine his returned vouchers with
the view to discover any forgery.

MILLER v. STEAM Naviac. Co. 10N. Y., 431.

A sudden gust of wind diverting the course of a distant fire so as to drive
the flames in the direction of and upon goods in transit is not to be con-
sidered as an act of God which excuses the carrier for their loss.

LORILLARD v. TOWN OF Monroe. 11 N. Y., 392.

A town is not the superior of its assessors and collectors of taxes so as to be
responsible for their mistakes whereby a taxpayer is made to pay too
much for taxes.

 

CALDWELL v. MugpHy. 11N. Y., 416.

When inability to work at one’s trade is one of the elements of damage, and
the defense claims that the injured person had not sought work, it is ad-
missible to show that his circumstances were such that he would prob-
ably have been engaged in work, if not disabled.

Evidence that an injured person has complained after an accident is ad-
missible.

Plff, passenger in deft’s stage, injured in negligent upset;
evidence admitted to show that plff’s circumstances were such
that he would probably have been engaged in laboring as a
carpenter if he had not been disabled by his injuries, deft hav-
20 Caszs ConDENSED. (1854-55.

 

ing claimed that his being without work was because he had not
sought it; evidence that since his accident plff had invariably
complained admitted. Injury, bruises.

(Verd. $625—Aff. at Gen. T.—Aff.)

+

Kevzy v. THe Mayor &c, or N. Y. 11 N. Y., 432.

A clause in a contract for work, that the contractor shall do the work under
the directions and to the entire satisfaction of the other party, does not
operate to make the latter liable as a master for the negligence of the
contractor’s servants employed and paid by him.

Plff's horse injured, negligent blast, deft’s street being opened,
deft made usual contract with contractor, clause in contract
“‘the work to be done under the direction and to the entire
satisfaction” of city official.

(Verd. for plff—Aff. at Gen. T.—Rev. new trial ord.)

Dorr v. N. J. STEAM Nav. Co. 11 N. Y., 485.

Acommon arrier may limit by contract its liability for injury to goods in
transit,

HOLBROOK v. Utica & SCHEN.R. R. Co. 12 N.Y., 236.

A railroad company owes to its passengers a duty to see that there are no
obstructions on its premises which may penetrate the windows of
passing trains.

When negligence may or may not be inferred from a set of circumstances,
it is a question of fact for the jury.

Plff, passenger in deft’s train, elbow on window sill, broken
by something which struck side of car, brushing against other
passengers at other windows, marking side of car, did not
appear what it was, except train was passing stationary car
which had swinging door at side.

(Verd. $800.—Aff. at Gen. T.—Aff.)

WIBeERT v. N. Y. AnD ERIE R. R. Co. 12 N. Y., 245.

It is not negligence for a railroad company to fail to transport freight in the
usual time, where resources are taxed beyond their capacity by an un-
usual amount of freight.
1855. ] Cases ConDENSED. 21

 

Plffs butter shipped from Buffalo to New York over deft’s
road, usual time six days, could be done in three, took fourteen ;
reason unusual quantity of merchandise delivered to deft at
B. for N. Y., more than it could transport at once; road in
good order, and as many trains run as could be with safety ;.
price of butter fell during the long transit.

(Report for deft.—Aff. at Gen. T. —Aff.)

 

GREEN v. CLARKE. 12 N. Y., 343..

Action by forwarder against carrier for failure to deliver goods.
Question as to effect of judgment in favor of carrier in a prior
action brought by the owner. edd, a bar.

KELSEY v. BARNEY. 12 N. Y., 425.

Navigators are not required to use the utmost possible care to avoid colli-
sions at sea, but to use the care which the circumstances reasonably
require.

Plff’s vessel aground in Cleveland harbor, mouth of Cuyahoga
river, harbor made by two long piers two hundred feet apart ;
while aground, night time, run into by deft’s steamer, plff’s
vessel not being discovered till too late; deft’s had never heard
of a vessel grounding there before ; the court declined to charge,
if officers of deft’s vessel could have seen plff’s vessel soon
enough to have enabled them to have stood off and avoid
collision bound to do so at their peril; charged, to entitle plff
to recover must show negligence in management of deft’s boat.
which occasioned the injury.

(Verd. for defts.—Aff. at Gen. T.—Aff.)

 

Brown v. Cayuca & 8. R.R Co. 12N. Y., 486.

A railroad company in bridging streams under legislative authority must
do so carefully so as not to cause the water to overflow.

A railroad company succeeding to the rights and road of a former company,
which has negligently bridged a stream so as to cause the water to
overflow, is responsible for maintaining the nuisance.
22 Cases CONDFNSED. [1855.

 

HEGEMAN v. WESTERN R. R. Co. 13 N. Y,, 9.

A common carrier is bound to furnish its passengers with a vehicle for their
carriage free from defects discoverable by due diligence, even though
only discoverable during its manufacture.

It is the duty ofa common carrier of passengers to adopt approved safety
appliances which are in general use.

Plff, passenger, injured, car ran off track through breaking of
axle ; break due to latent defect not discoverable by external
examination, but discoverable in the process of its manufacture;
axle made by manufacturer, safety beam in use on other roads
to guard against injuries from such causes, not adopted by
deft. Injury, hip dislocated.

(Verd. $9900. - Aff. at Gen. T.—Aff.)

Query. Is this case to be deemed to be overruled by implication in the.
Wynn case, 133 N. Y.,575? And see Carroll v, S.1I.R.R.Co., 58 N.Y., 126.

Corwin v. N. Y. & Erte R. R. Co. 13 N. Y., 42.

Under § 44 of the general railroad act of 1850, the negligence of an owner
of cattle, in allowing them to stray, is no defense to a railroad company
which has failed to maintain fences as thereby lequired.

Under that act the duty to maintain fences and cattle guards is due to every
owner of cattle whether an adjoining owner or not.

Plff's cattle strayed on deft’s track, injured; deft had not
complied with requirements of § 44 of general railroad act of
1850 as to fences; did not appear how cattle got on to track.
The decision proceeded on the assumption that they got on
from adjoining land (not belonging to plff) straying from high-
way on which plff had allowed them to run at large.

(Verd. for Plff—Rev. at Gen. T.—Rev. judg. on verd. aff.)

BROoKS v. BUFF. AND Nr1aG. Fas R. R. Co.
1 Abb. Crt. App. Dee., 211.

It is contributory negligence to stop a wagon on a railroad track.

PIff run over by train at deft’s crossing lived near by, knew
time train passed, stopped his team on the track, without look-
ing for train, which he might have seen.

(Verd. $900.—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
for deft.)
1856. } Cases ConpEnsep. 23

 

 

TRELAND v. Os. H. AND S. PL. R. Co. 13N.Y., 526.

It is the duty of a plank road company when changing a highway into a
plank road, to doso in such a manner as to permit public travel in
safety while the change is being made.

Plff thrown from his wagon, driving along highway which
under Plank Road Law of 1847 deft changing into plank road;
deft had left road at the place where newly graded track div-
erged from the path formerly traveled on, in such condition as
would be likely to mislead travelers, induce them to take old,
unsafe, instead of new, safe course. Injury to spine.

(Verd. $1500—Aff. at Gen. T.—Aff.)

SHELDON v. Hup. Riv, R.R. Co. 14.N. Y., 218.

In support of an allegation that a fire has been kindled by sparks from a
passing locomotive, it is enough, after evidence tending to exclude any
other origin of the fire, to show that defendant’s]ocomotives on other oc-
casions have emitted sparks sufficient to produce the fire in question.
Piff's house set on fire, as he claimed, by sparks negligently

allowed to escape from deft’s locomotive; gave evidence tend-
ing to exclude probability of fire having been kindled by other
means; evidence to show that deft’s engines passing near, on
other occasions emitted sparks and coals, which fell further
from track than his house, excluded.

_ (Non-suit.—Aff. at Gen. T.—Rev. new tri. ord.)

OLDFIELD v. N, Y. & HARLEM R.R. Co. 14.N. Y., 310,

In an action under the death act of 1847, proof need not be given that
the next of kin sustained actual pecuniary loss.

Under a complaint containing a general averment of defendant’s negligence,
evidence of negligence of any kind which will warrant a recovery is
admissible.

Plff's intestate, child of seven, killed, run over in street by
deft’s car, drawn by horses, driver talking to others, driving at
fast trot; complaint contained no averment as to in what
negligence consisted, simply general averment of deft’s neglig-
ence; no evidence given as to actual pecuniary loss by next of
kin.

(Verd. $1300.—Aff. at Gen. T.—Aff.)
24 Cases CoNDENSED. [1856-57.

 

CLARKE v. Rocu, & Syr. R.R. Co. 14. N. Y., 571.

Plff's horses injured 7 ¢ransifu, not caused by any occurence
incident to carriage of animals; could have been prevented by
due care on carrier’s part. Held, liable.

HEGAN v. EIGHTH AVE. R. BR. Co, 15 N. Y., 380.

There is no greater obligation for a vehicle meeting a street car to turn to
the right than to the left.

Or,

Where one of two vehicles meeting on a highway is a car traveling ona
track, the act requiring meeting vehicles to turn to the right, does not
apply to either.

Plffs cart driving south along deft’s easterly track, its car
coming up same track at what was admitted to be an unsafe
rate of speed for a city street; plaintiff turned out to left, car
struck cart, plaintiff thrown out. ‘Injury, bruises.

(Verd. $400.—Aff. at Gen. T.—Aff.)

Ransom v.N. Y. & Erte R.R. Co. 15 N. Y., 415.

An injured person may recover damages for the bodily pain and suffering
caused by the injury.

Plff passenger injured in collision of deft’s trains, court
charged that jury might among other things award damages for
his bodily pain and suffering. Internal injuries, partly para-
lyzed, permanent.

(Verd. $14000.—Aff. at Gen. T. —Aff.)

QUIN v. Moore. 15 N. Y., 432.

The infancy of a person negligently killed does not require that the damages
awarded under the death act shall only be nominal.

Under the Code as it existed in 1857 next of kin were competent as witnesses
in an action under the death act.

The interest of the next of kin in the damages recoverable under the death
act is assignable,

Plffs intestate, boy of 12, died from dose of morphine,
negligently sold to his mother by deft’s clerk, instead of quinine
for which she asked; mother's testimony admitted, had assigned
all her interest as next of kin.

(Verd. $200.—Aff. at Gen. T.—Aff.)
1857. } Casrs CONDENSED. 25

Nouton v. WESTERN R. R, Co. 15 N. Y., 444.

It is unnecessary to decide whether an action to recover damages resulting
from another’s negligence is on contract or in tort, as all such actions
presuppose some obligation or duty violated.

Where there is anything in the circumstances to create a duty either to an
individual or the public, any neglect to perform that duty from which
injury arises is actionable.

Acommon carrier, undertaking to carry a person without compensation is,
in the absence at least of an express agreement exempting it, liable to
such person for injuries sustained through its negligence.

‘Piff, mail agent, carried by deft under contract with U. S. for
transportation of the mails and plff; while in deft’s car taking
care of mails, injured by car running off track through deft’s
negligence.

(Dem. no cause of action, overruled.—Aff. at Gen. T.—Aff.)

HIBBARD v. N. Y. & Erte R. R.Co. 15N. Y., 455.

A regulation made by a railroad company requiring passengers to exhibit
their tickets whenever requested and directing ejection from their cars
of those who refuse to do so is a reasonable and proper one.

Action for damages for ejecting a passenger who, having once
exhibited his ticket, refused to do so when again requested by
the conductor.

(Verd. $1000,—Aff. at Gen. T.—Rev. new tri. ord.)

CONRAD v. TRUSTEES OF VILLAGE OF ITHACA.
16 N. Y., 158.

Where an officer of a municipal corporation is charged with the duty of
maintaining its roads and bridges, the corporation is responsible for the
manner in which he performs that duty.

Plff’s shop carried away by flood by reason ofnegligent man-
ner in which trustees of village erected bridge over creek; deft
a municipal corporation, the village a separate road district,
its trustees commissioners of highways therein, charged with
duties of such officers.

(Verd. for plff, excep. in first inst. at Gen. T.—Judg. for plff

-at Gen. T.—Aff.)
26 Cases CoNnDENSED. [1856-57

 

 

WEET v. TRUSTEES OF VILLAGE OF BROCKPORT.
16 N. Y., 161 (Note.}

A villaye corporation is liable for the damages resulting from the
negligence of its trustees, acting as commissioners of highways to repair
its sidewalk,

Plff, at night fell into unguarded hole in platform, constitut-
ing a continuation of the village’s sidewalk, so as to connect it
with a bridge across canal ; platform built by order of village
trustees, left partially unplanked and unguarded over night.

(Nonsuit. Nonsuit set aside at Special Term, Selden J.
delivering an opinion, which in June 1856, on deciding Hickok
v. Trustees of Village of Plattsburgh, was adopted by the Court
of Appeals as a correct exposition of the law; hence the publi-
cation here. )

HIcKoK v. TRUSTEES OF VILLAGE OF PLATTSBURGH.
16 N.Y., 161 (Note).
When a citizen digs a ditch in its street, the municipality knowing of it
must not leave it open and unguarded.

PIff fell into ditch in public alley, in deft’s village, night
time, ditch dug by citizen several months before, allowed by
village trustees to remain open and unguarded, knowingly.
See statement of facts in 15 Barb. 427.

(Nonsuit.—Aff. at Gen. Term.—Rev., new tri. ord. )

Opinion of Selden J. in Weet case, supra, adopted as gov-
erning above facts.

 

POLER v. N. Y, CentraL R. RB. Co. 16 N. Y., 476.

A contract between a railroad company and an adjoining owner in regard
to its maintaining fences along its track does not in the absence of an

express agreement, relieve the company from the requirements of the
statute on the subject,

Whether an adjoining owner was negligent in omitting to notify a railroad
company of the defective condition of its fences and gates is a question
of fact.

Plff's horses killed on deft’s track, deft failed to maintain
proper gates and cattle guards along its road through plff’s farm
as required by statute, horses strayed; by agreement with plff
on deeding a strip of his farm to deft’s grantor, it was to con-
1858. ] Cases CONDENSED. 27

 

struct two crossings, one with cattle guard, and alsoa sufficient
fence; def’t succeeded to this obligation, contract silent as to
gates ; plff had knowledge gate out of order, did not notify
deft, but himself took precaution to keep it closed, insufficient;
court refused to charge that if the gate was defective and plff
knew it, and allowed his horses to remain in the lot he was
negligent ; also refused to charge that if he secured the gate im-
properly, it was negligence; it charged if he were guilty of
negligence, he could not recover.

(Verd. for Plff. excep. at Gen. T.—Judg. for PIff. at Gen. T.—
Aff.)

GILBERT v. BEACH. 16N. Y., 606.

Piffs, tenants in a store, goods in cellar damaged by water
from adjoining lot, on which defts were building, spout to roof
constructed so as to turn water into area between the buildings,
from which it overflowed into cellar. Mistrial.

Srorrs v. Crry oF Utica. 17 N. Y., 104.

A municipal corporation, making a contract for an excavation in its street,
containing no requirement for guarding it, is liable for the damages
resulting to passers-by from the contractor's failure to properly guard it.
Plff drove at night into unguarded excavation in deft’s street,

dug by contractor for a sewer, city’s contract with him con-

tained no provision for guarding it. Internal injuries.
(Verd. $400.—Aff. at Gen. T.—Aff.)

Lupy v. Hupson Riv. R. R. Co. 17 N. Y., 181.

Aservant’s statement, not accompanying a negligent act, but given after
it as an explanation of it is not admissible against his master.

Plff run against by deft’s car drawn by horses in a street,
was allowed to prove that just after the accident driver arrested,
and on being asked why he did not stop, said brake out of
order. Injury, cut, wounded, teeth knocked out.

(Verd. $2000.—Aff. at Gen. T.- Rey. new trial.)
28 ‘Cases CONDENSED. [1858.
RUSSELL v. Hupson Riv. R. BR. Co. 17 N. Y., 134.

Where a servant, who is carried by his master to and from his work without
charge, is by the terms of the agreement to render service in the man-
agement of the conveyance, he is a co-servant with all the others so
engaged. :

PIff day laborer on deft’s gravel train, injured by negligence
of the engineer while being taken on the train to his work, he
and other laborers carried free to and from their work, brakes
were to be worked by them. Injury, head wounded, and con-
tusions.

(Verd. $225, subj. to opin. of Gen. T.—Judg. for Plff at Gen.
T.—Rev. new tri. ord.)

SHERMAN v. Rocn. & Syr. R.R.Co. 17 N. Y., 153.

Servants of unequal grade, engaged in a common undertaking for the
master, are fellow-servants.

Plff's intestate, brakeman on deft’s train under orders of its
conductor and engineer, injured in an accident resulting from
train being run by them negligently at a dangerous place.

(Dem. to complaint sustained—Aff. at Gen. T.—Aff.)

QUIMBY v. VANDERBILT. 17 N. Y., 306.

Action for damages for failure to transport passenger from
N. Y. to San Francisco, unreasonable delay at Nicaragua, three
tickets for successive portions of the journey bought in N. Y.
from one agent. Question was whether deft who only owned
the line from N. Y. to Isthmus of Nicaragua but was the prin-
cipal of the agent who sold the tickets, could be considered
under the circumstances as having made a contract for whole
trip. Held, facts sufficient to warrant jury in finding one con-
tract.

WEED v. Panama R. R. Co. 17 N. Y., 362.

In an action against a common carrier for breach of contract to carry, it is
no defense that the failure to carry was due to the willful act of the
carrier's servant.
1858, ] Cases CONDENSED. 29

 

PIff passenger on deft’s train, health injured through illness
due to wilful detention of the train all night at a switch by its
conductor without cause.

(Verd. $2000. excep. at Gen. T.—Excep. overruled, Judg. for
PIffi—Aff. )

CONGREVE v. SMITH. 18 N. Y., 79.

He who without permit from municipal authorities interferes with safe
passage along a sidewalk is liable for the damages resulting therefrom.

Where a person contracting for an act which will obstruct a sidewalk, omits
to obtain permission to do so, the fact that an injury resulting from such
obstruction occurred through the act of the contractor does not shield
him from liability therefor. ‘

PIff an infant, injured by breaking of flag-stone covering
excavation in sidewalk in front of deft’s house, in which plff
lived with his father, house built by contract, contractor sub-
contracted as to setting the flag-stone, stone not strong enough;
no license from the city for the excavation was proved. Injury,
leg amputated.

(Verd. $650.—Aff. at Gen. T.—Aff.)

CONGREVE v. MorGAN. 18N. Y., 84.
Where an injury results from a nuisance in a highway, it is immaterial
whether negligence caused the nuisance.

This case was similar to the last one, damages for personal
injury arising in same manner and at same time, defts the
same, joint owners of the house; a further question arose, on
the point that defts had no notice that the stone was unsafe,
and were not negligent in not suspecting it. Injury, leg
amputated.

(Verd. $700.—Aff. at Gen. T.—Aff.)

WALL v. BUFF. WATER WorkKS Co. 18 N. Y., 119.
A denial of an allegation that an accident happened to plaintiff without his
fault, is a denial of the accident as well as freedom from fault.

Plffs complaint alleged that without any fault on his part he
fell into a ditch in a street negligently left open by deft; its
30 Cases ConpDENSED. [1858.

 

answer denied ‘‘that the plaintiff without any fault or want of
care on his part did fall therein”; on the trial evidence was given
that plaintiff was found near the ditch with his leg broken, but
none that he had fallen in; deft’s motion for nonsuit denied on
ground that its answer admitted the fact of plaintiff having so
fallen.

(Verd. $1000,—Aff. at Gen. Term.—Rev. new tri. ord.)

~N

Button v. Hupson RIveR R.R. Co. 18 N.Y., 248.

It is error to charge that negligence of a plaintiff, to prevent a recovery
must have directly contributed to the injury.

To maintain such an action, it belongs to the plaintiff to prove aftirmatively
the absence of negligence on the injured person’s part contributing proxi-
mately to the injury.

In the absence of proof of any circumstances importing negligence on the
injured person’s part, such negligence can not be presumed.

Plffs intestate run over in city street by deft’s car driven by
horses, faster than four miles an hour, had been drinking, left
dramshop a few minutes previously, found on track, head on
one rail, legs across the other, driver claimed did not see him
in time to stop; court charged negligence of intestate to prevent
recovery must have directly contributed to the injury; refused
to charge, it belonged to plaintiff in order to maintain the action
to establish affirmatively that the intestate was not guilty of
negligence.

(Verd. $5000.—Aff. at Gen. Term.—Rev. new tri. ord.)

Bowen v. N.Y. Cent. R. R. Co. 18 N. Y., 408.

When an accident happens toa public conveyance, the presumption in favor
of an injured passenger is that it is due to the negligence of the carrier.
A common carrier can only rebut the presumption that an injury to its pas-’
senger from an accident to its conveyance was due to its negligence, by
showing that the accident occurred from circumstances against which

human prudence and foresight could not guard.

Piff passenger, injured by car jumping track, turning over;
engine struck a cow, dragged her hundred feet, but case does
not show that to be the cause of accident. Injury, various
bruises, cuts, etc.

(Verd. $400,—Aff. at Gen. T. —Aff.)
1858-59. | Casgs CONDENSED. 31

 

STEVES v. OSWEGO & SyRACUSE R.R. 18 N. Y., 422.
Failure to look up and down a railroad track before crossing is negligence.

PIff injured while crossing deft’s track, omitted to look, fur
cap over ears, whistle blown, bell not rung.
(Nonsuit, excep. at Gen T.—Judg. for Deft.—Aff.)

Boupt v. N. Y. Cent R.R. Co. 18 N. Y., 432.

A servant engaged in constructing a new track, and one engaged in run-
ning a train on it, are co-servants within the rule as to non-liability of
master to one servant for damages occasioned through the negligence of
another.

A servant run over while walking along the master’s track to his work is to
be regarded, if rightly there, as engaged in the discharge of his work, or
if not-so regarded, then as a trespasser.

Plff laborer aiding in construction of new track alongside of
old one, no trains had run on it, walking along on it to work one
morning overtaken and run over by train using it because old
track temporarily obstructed. Injury, foot amputated.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

CurTIS v. ROCHESTER & Syr. R. RB. Co. 18 N. Y., 534.

The mere fact that an accident occurs to a passenger is not of itself pre-
sumptive evidence of negligence of the carrier.

Where it appears that an accident occurs from any disarrangement or dis-
placement of the track or car of a railroad company the presumption of
negligence at once arises.

Damages cannot be awarded for future bodily pain which the injured
person is only likely to suffer. ;

Damages may be awarded for future bodily pain and suffering when it is
reasonably certain that they will necessarily result.

PIff passenger, train ran off track at switch, uncertain whether
switch deranged or rails spread, no evidence of any visible de-
fect; ulcer resulted, not healed at time of trial; court charged
fact of this accident occurring itself presumptive evidence of
negligence ; also jury might take into consideration bodily pain
and suffering plff. likely to suffer, then modified it, future
damages only be awarded when it is reasonably certain that
they will necessarily result.

(Verd. $4,500.—Aff. at Gen. T.—Aff.)
32 Cases ConDENSED. [1859.

 

Sura v. N. Y. & Haruem R. R. Co. 19 N. ¥., 127.

Where a person is injured by the negligent act of defendant’s servant, it is
immaterial that the latter was acting pursuant to a contract by defendant
with the master of the injured person.

As to improved appliances, follow Hegeman case.

As to proximate cause, follow Winchester case.

Piffs intestate, engineer on train of New Haven road, which
near N. Y. ran over deft’s track; killed through negligence of
deft’s switchman at switch at point of track used by both com-
panies ; switch inferior in safety to another kind generally
adopted in its place for that reason on other roads.

(Verd. $5000.—Aff. at Gen. T.—Aff.)

CHAPMAN v. N.Y. & New Haven R.R.Co. 19 N.Y., 341.

The rule as to imputed negligence does not apply to passengers in railroad
cars.

PIff passenger on train of N. Y. & Harlem R. R. Co. injured
in collision between that train and deft’s train, due to negligence
of both companies. Injury, shoulder dislocated, spine and
wrist injured.

(Verd. $6500.—Aff. at Gen. T.—Aff.)

 

Buackstock v N.Y. & Erie R.R.Co. 20N. Y., 48.

Delay in delivery of goods; due to unjustifiable strike of en-
gineers. He/d, no defense, on the ground that carrier’s failure to
transport is no more excused by wilful misconduct, than by
neglect, of servants.

JOHNSON v HUDSON Riv. R. R. Co. 20 N. Y., 65.

Where a person is found injured so that he cannot explain how, and the
cirumstances permit of an explanation which is sufficient, if accepted, to
acquit him of negligence, the case should be sent to the jury.

Plffs testator found on deft’s track in city street, injured by
train passing over him, had been driving home at night along
that street going north, sewer excavation extended across the
1859. | Cases CONDENSED. 33

 

street, his cart found on sidewalk near south bank of excavation,
horse tied; no lights on deft’s train, nor bells on horses draw-
ing it, going fast, water on rails deadened sound, horses could
be heard short distance, deceased not intemperate, sober when
started for home ; plff's theory was that deceased being unable
to drive across the sewer on that side of the street left his cart,
was crossing track to find passage on other side, when struck,
injury, death. .
(Verd. $4,000.—Aff. at Gen. T.—Aff. )

MERCANTILE Mut. Ins. Co. v CALEBS. 20 N. Y., 173.

Piff insured shipper on goods injured while being carried by
deft, whose contract with shipper exempted him from damages ;
plff paid loss. Meld, could not recover from carrier.

Harris v NorTHERN IND. R.R. Co. 20 N. Y., 232.

Plffs cattle transported by deft, cars too low for cattle to
stand upright, iron staples inside against which they were
rubbed, train needlessly detained sixteen hours, cattle not al-
lowed to be removed so as to be watered, reduced in flesh, value
impaired. Questions, as to shipper’s knowledge of the defects
of the car, and as to amount of damages, arising on various re-
quesis to charge.

GooLp v CHAPIN. 20 N. Y., 259.

Plffs goods transported by defts as carriers under agreement
to forward them at end of its line by another carrier to destina-
tion; deft did not deliver them to such other carrier, but put
them on a barge owned by him to facilitate trans-shipment, and
during unreasonable delay of second carrier to remove them,
after notice and promise to do so, they were burned. eld,
deft liable, relation as carrier of the goods not ended.

CoLEGROVE vN. Y. & N. H.R. BR. Co. 20N. Y., 492.

A person injured through the concurrent negligence of two persons may
sue both in one action,
34 Cases CONDENSED. [1860.

 

A railroad company can claim no exemption under § 46 of the general rail-
road law, as to passengers riding on the platform of cars, where it under-
takes to carry in any one car more persons than it can accommodate
with seats and who have no opportunity before the train is under way
to find seats ‘in other cars. "

Plff passenger on train of one deft, injured in a collision be-
tween it and train of the other deft, both negligent; he was
standing on the platform, car crowded, no seat, train started
before he had opportunity to findseat in other car. Injury, ankle
fractured.

(Verd. $450.—Aff. at Gen. T. —Aff.)

Moors v WESTERVELT. 21 N. Y., 103.

The mere failure of a sheriff to remove property levied on by him from the
position in which he finds it, is not by itself negligence on his part.
Action against a sheriff for damages to plaintiff's coal; plain-

tiff brought replevin against master of schooner for the coal,

deft levied on it, by consent of schooner’s captain left it on
board in keepers custody pending justification of plffs
sureties ; captain requested keeper to allow him to move the
vessel to south side of pier for greater security in case of storm,
keeper refused, storm came up during night, vessel sank, posi-
tion unsafe, vessel on south side sustained no injury ; court held
no question of fact except amount of damages.

(Verd. for plffi—Aff. at Gen. T.—Rev. new tri. ord.)

Purvisv COLEMAN. 21N. Y., 111.

Where a guest negligently omits to avail himself of the place provided by
the innkeeper for the safe keeping of his money, he can not hold the
latter liable for its loss.

Personal notice to a guest of a place to keep valuables is equivalent to post-
ing notice in his room.

BROWN v BUFFALO & Svravre LINE RB. BR. Co.
22, N. Y., 191.

Violation of acity ordinance is not alone evidence of carelessness sufficient
to charge a defendant with the consequences of an accident which would
not have occurred except for such violation.

Or,

Violation of a city ordinance is not in itself evidence of negligence.
1860. } Cases ConDENSED. 35

 

Plffs intestate, riding in wagon drawn by another, killed in-
stantaneously at deft’s crossing by its train running in a city
at a speed in excess of that allowed by an ordinance passed
under authority of the Legislature; court refused to charge
that if the deceased was instantaneously killed, the action could
not be maintained ; it charged that if the deceased and the
driver were free from fault, and the injury occurred while deft’s
train was running in violation of the ordinance and the injury
was occasioned by or would not have occurred except for such
violation, deft was liable.

(Verd. $4,500.—Aff. at Gen. T.—Rev. new tri. ord.)

Fero v THE BUFFALO & STATE LINE R. RB. Co.
22.N. Y., 209.

A railroad company is bound to use the utmost care to prevent sparks from
its locomotives setting fire to houses in villages along its tracks.
An owner of a house near a railroad track is not bound to see that its doors
are kept shut so as to keep sparks from locomotives from blowing in.
Plffs house burned by sparks blown through an open door
from deft’s locomotive standing on track in front of the house
30 ft. off; it was of most approved construction then in use
with respect to precautions against escape of sparks, had
brought in a freight train to station on regular time, station in
a village, plffs house a hotel, to itan addition was in process of
erection; a mason employed on the addition just before fire saw
sparks blowing towards house, saw open door in the addition,
did not close it, sparks blew in, ignited shavings on floor.
Court charged that when trains. are running in villages, near
buildings, and wind blowing, company bound to use utmost
care to prevent setting houses on fire.
(Verd. for Plffi—Aff. at Gen. T.—Aff.)

 

BISSEL v. MicH1Gan Soutu. R. R. Co. 22 N. Y., 258.

Where a corporation other than municipal, while carrying ona business
which its charter does not warrant, negligently injures a person, the plea
of ultra vires is no defense.

Or,

Where a corporation, engaged in transporting passengers in a state other

than that where it was chartered, negligently injures such passenger in

such other state, it cannot set up w/ira vires asa defense, or
36 Cases CONDENSED. [1860,

A corporation chartered to carry passengers in one state, and undertaking
to carry them beyond it, owes them the same duty to carry them safely
in the one state as in the other.

Or,

Ultra vires ig nota shield for negligence by a corporation.

Plff, passenger on a train used by both deft companies, one
deft was a Michigan, the other an Indiana corporation; they
managed their roads as one, under a business name, and
continued the line on to Chicago, in Illinois; while train in
Illinois, negligent collision occurred between it and train on a
crossing road; neither deft had charter in Illinois; defense
was that under the charters they did have respectively,
neither had right to operate road in Illinois, that act wlra ures,
Injury, leg broken.

(Report $2,500.—-Aff. at Gen. Term.—Aff.)

ALTHORE v. WOLFE. 22 N. Y., 355.

Where snow and ice are shoveled off a roof on to a passer-by on the side-
walk, the owner of the house who has given general directions to his
servant to have the roof cleared, is answerable for the damages, whether
the actual shovelling was done by the servant or some one else at the
servant’s suggestion.

Plff’s intestate, passing along sidewalk in front of deft’s
house, killed by snow and ice, shoveled from deft’s roof, fall-
ing on him ; deft had ordered servant to clear the roof, servant
asked friend to help him, did not appear whether ice which fell
on deceased was shovelled by servant or friend ; court charged
that servant had right to employ assistance if necessary, in ab-
sence of specific instructions as to manner of removing snow;
refused to charge, that if servant employed other man without
authority of deft, and injury to deceased resulted from acts of
latter, deft not liable; other refusals, but this the only question
argued.

(Verd. $3,500.—Aff. at Gen. T.—Aff.)

BERNHARD». RENS & Sar. R. R. Co. 1 Abb. C. A. D., 131.

An error in judging that one has time to rescue one’s property from 4
railroad track in front of a slowly moving locomotive is not necessarily
negligent.
1861, ] Cases CoNnDENSED. 37

 

A person in charge of a locomotive, moving through a city, must keep his
eye on the track ahead of the engine, even though it is moving slowly,
and the bell is rung.

Piff's intestate killed by deft’s locomotive passing slowly by
station platform in heart of a city; he had alighted from train
on another railroad, walked along platform to street crossing,
high wind, military display, noise and bustle, hat blew off on to
deft’s track, deceased went in pursuit, struck by cow catcher,
clothing caught, struggled to get loose, dragged under wheel ;
if person in charge of engine had been looking on track ahead
of engine, would have seen the struggle and could have
stopped engine before it ran over him ; bell rung.

(Verd. $4,000 —New trial at Spec. T.—Rev. at Gen, T.
Judg. ord. on verd.—Aff.)

Nore.—Selden J. says, if it appears from plff’s evid. he was guilty of
neg. he should be nonsuited; also, ‘‘Itis not easy to suppose a case in
which tne court would be warranted in holding as matter of law, that negli-
gence was proved.”’ This is one of the steps in the change of the lawas to
burden of proof pointed out in note to Keegan v. Western R. R. Co.,
3N. Y., 175-

MERRITT v. Topp. 23 N. Y., 28. ’

The holder of a note payable on demand does not discharge an endorser
by mere neglect to demand it.

BELLINGER v. N. Y. Cent. R. R. Co. 23 N. Y., 42.

Where a person interferes with a water course, under authority of law, he
is not responsible for the resulting damages unless he commits a faultin
the manner of doing it.

Piff's land overflowed by water from creek, during freshets,
overflow due to railroad embankment constructed under legis-
lative sanction, evidence of plaintiff tended to show embank-
ment and bridge not constructed with suitable care ; objection
sustained to question to deft's expert, ‘‘ were the embankment
and the bridges carefully and skilfully constructed with refer-
ence to the creek?” Court charged, railroad company had legal
right to build its road in its present location, but, in building it,
was bound to exercise due care, company not bound to insure
<gainst any possible contingency, but bound to see openings
sufficient for any freshet which might reasonably be expected.
38 CasEs CONDENSED. [1861.

 

(Ground of rejecting above question at trial did not appear ; at
Gen. Term, judgment affirmed on ground that the sole question
was whether overflow of plffs land occasioned by embankment.
See page 47.) «

(Verd. for PIff—aAff. at Gen. T.—Rev. new tri. ord.)

Notr.—The point decided by the court, (p. 47), is given in the head
note. eld to arise on the exception to the sustaining of the objection to
above question. The proposition that a witness may not be asked whethera
thing was carefully done, that being the issue to be tried, does not seem to
have occurred to any one, unless indeed that was the ground of the trial
Judge on excluding the question.

Dicxkins v. N. Y. Cen. R. R. Co. 23 N. Y., 158.

Damages sustained by a husband through loss of services of his wife con-
sequent upon her death are not part of the damages to the next of kin
contemplated by the Death Act.

Plff's intestate, wife, killed by deft’s negligence; as part of the
damages sustained by next of kin, he was allowed to recover
damages for loss of service sustained by him as husband of
deceased.

(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord.)

SANFORD v. EigHTH Avg. BR. R.Co. 23 .N. Y., 343.
A common carrier ejecting a person from the conveyance for non-payment
of fare must not do so in a negligent manner.

Plff's intestate wrongfully refused to pay his fare on deft’s
car, conductor ejected him without stopping the car, fell on
snow-bank, rolled under car, run over, killed.

(Verd. $4,250.—Reyv. at Gen. T.—Rev. judg. on verd. aff. )

 

KELLER v. N. Y. Cent. R. B.Co. 2 Abb. C. A. D., 480.

As to proof of damages, Oldfield v. N. Y. & H.R.R.Co., 14.N. Y., 310 fol-
lowed.

It is negligence to run an express train at full speed past a station when a
way train is stopping to discharge passengers.

It is negligence not to give passengers a reasonable time to alight.

When a train is discharging passengers at a station and an express train is
coming up atfullspeed ona track, between which and the station the way
train is, due precautions must be taken to see that passengers alight
from the way train on the station side of it.
1861-62. | Cases CoNDENSED. 39

 

Evenif the facts, uponan issue of negligence, arenot in dispute, where they

are fairly susceptible to differentinferences, it is for the jury to draw them.

Plff's intestate, passenger, run over by express train, had just
alighted from way train at station, station had not been an-
nounced, way train made hurried stop, station on north side of
track, deceased and her daughter (also killed, see Dickins z.
same deft, 1 Abb., C. A. D., 504), had time to get off it started
up; they got off on south side, were crossing next track when
express train, going at 40 miles an hour, came by on it, and
struck them ; they were not acquainted with the locality, had
no reason to apprehend express train, due precautions to keep
passengers from getting off south side of track not taken; a
witness of deft having stated how long the way train had
stopped, was asked whether the train had stopped ample time
for all the passengers to get off, including these ladies, ex-
cluded ; no evidence of specific damages sustained by next of
kin.

(Verd. $1,700.—Aff. at Gen. T.—Aff.)

WHITFORD v. PANAMA R. R. Co. 23 N. Y., 465.

Yhe Death Act of this State does not apply to cases where the transactions
occurred in a foreign country.

Plff’s intestate killed through deft’s negligence in Panama,
Central America; no foreign death act pleaded; demurrer, no
cause of action. The complaint does not appear to have
averred positively that the death as well as the injury took
place at Panama, but it is inferable that it did; the complaint
says ‘‘shortly afterwards died”.

(Dem. sustained,—Aff. at Gen. T.—Aff.)

Note. —As it does not absolutely appear that the death took place in
Panama, the words ‘‘ transaction occured ”’ are used in the head note, they
being the words in which the leading opinion at its end states the rule. It
is believed that there is no case passing upon the liability of a negligent
defendant, where, after receiving the injury in another jurisdiction, the
injured party comes into this State and dies here.

WELLS v. N. Y. CENTRAL R. R. Co. 24 N. Y., 181.

A clause in a free pass exempting the carrier from damages to the
passenger from the negligence of its servants is not against public policy.
Or,
40 Cases CONDENSED. [ 1862.

 

A common carrier may by contract exempt itself from liability to a free

passenger for damages occasioned by negligence of its servants.
The distinction between ‘‘ gross” and ‘‘slight’’ negligence is illusory.

Plff passenger injured through deft’s negligence while riding
free, pass stated ‘‘the person accepting this free ticket assumes
all risks of accidents and expressly agrees that the company
shall not be liable under any circumstances, whether of
negligence of agents or otherwise, for any injury to the person,
or for any loss or injury to the property of the person using
this ticket”. Case tried on agreed state of facts, deft admitted
its negligence. Court found “gross” negligence, court of
appeals held it must read finding as if ‘‘ gross” omitted. Injuries
to face and head.

(Finding $750.—Rev. at Gen. T. new trial ord.—Aff, Judg.
absol. agst. plff.)

Perkins v. N. Y. CenTRAL R. RB. Co. 24 N. Y., 196.

When a railroad pass exempts the carrier from responsibility for the negli-
gence of its servants, it means what it says, gross negligence as well as
slight.

The distinction between gross negligence and slight negligence is one of
fact, not law.

Plff's intestate, passenger, killed through deft’s negligence,
while riding free, pass was in same form as in last case (Wells
v. same deft); court charged that if there was such a degree of
negligence as to amount to gross or culpable negligence such
as would subject the trackmaster to indictment for manslaughter
had he been owner of the road, deft liable (reading statute as
to manslaughter in 4th degree.)

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Smitn v. N. Y. CENTRAL RB. R. Co. 24.N. Y., 222.

Plff's intestate, passenger, killed through deft’s negligence
riding on deft’'s train to take care of hogs, contract in writing
for transportation of self and hogs was, 2 car loads hogs $67
per car, carried ata reduced rate in consideration of the owner's
assuming certain specified risks in respect to safety of hogs,
‘persons riding free to take care of the stock do so at their own
risk of personal injury from whatever cause ;” deceased fur-
1862. ] Cases CoNDENSED. 41

nished with drover’s pass. ‘‘ Pass ——in charge of cars of stock
on account of—, takes all the responsibility as to the injury
of himself or stock.” Court charged jury to find for plff if
death caused by gross negligence.

(Verd. $5,000, excep. at Gen. T.—Excep. overrul. at Gen. T.
judg. ord. on verd.—Aff. )

Note.—No rule can be laid down as to therule of this case; the aftirmance
was by 4to3; of the four, one opinion was in flat contradiction to the case
just decided of Perkins, two were on the ground that deceased was not a
gratuitous passenger, and clause was agst public policy, andthe other was
inconsistent with opinion of same judge in Perkins case. The following is
suggested asa rule growing out of the fact of the affirmance :

A recovery for damages to a passenger from negligence may be had,
not-withstanding the contract under which he rides contains aclause exempt-
ing the carrier therefrom, if such contract is one providing for the trans-

portation of freight for hire, and the passenger is to look after it during
transit.

Burtis v. BuFF. & 8. Line R. R. Co. 24 N. Y., 269.

Neglect to deliver goods within three days, special contract
for delivery within that time over connecting roads to a point
outside of the State. Question as to effect of Chap. 270, Laws
-of 1847, in regard to liability of connecting roads.

RYAn v. FowuER. 24N. Y., 410.

The master owes a duty to his servants to keep his premises in a safe
condition for their use.

PIff, girl of 14, in deft’s employ, leg broken by fall of privy
in his factory, had become insecure through defects deft should
have known.

(Verd. $1,750.—Rev. at Gen. T.—Rev. Judg. Aff.)

WIups v. Hupson River R. R.Co. 24N. Y., 430.

It is negligent to approach a railroad track rapidly without looking fora
train, and without stopping.

Plff's intestate run over at deft’s crossing in city street; he
approached the track without looking for the train, at such
speed as to be unable to stop his horse; deft was negligent.

(Verd. $4,000.—Aff. at Gen. T.—Rev. new trial ord.)
42 Cases CONDENSED. [1862.

 

TILLEY v, Uupson Rrv. R. R. Co. 24 N. Y., 471.

The chance that her children as next of kin may receive on the death and
intestacy of their father, the husband, an estate increased by her earnings
can not be considered in estimating the pecuniary loss sustained by next
of kin of a married woman. .

Loss of maturnal nurture and education is a pecuniary loss to the next of kin,

‘Evidence of the occupation of the deceased is admissible.

Pff's intestate, his wife, killed in negligent collision on deft’s
road, he a carpenter, she attended household, took care of five
children, four minors, also made shirts, carrying this business
on for husband ; court charged plff not entitled to recover any
damages resulting to him as husband, that loss of deceased’s
earnings was husband’s loss; if he should have retained her
earnings till his death, they would pass in absence of a will to
the children and the jury might estimate the fair pecuniary value
of that chance.

(Verd. $4000.—Aff, at Gen. T.—Rev. new tri. ord.)

BaRKER v. N. Y, Cent. R.R. Co. 24 N. Y., 599,

If a passenger remains on a train after it has passed a station where he
should have changed cars for the place to which he had bought a ticket,
and refuses to follow the conductor’s instructions to take a train back
from the nextstation, he may be ejected if he will not pay additional fare
for carriage on the train where he insists upon remaining.

The written report of a conductor as to time of arrival of a train ata station
made pursuant to the carrier’s regulations is admissible in evidence ina
controversy between the carrier anda passenger, upon the theory that the
business of a railroad company ‘‘is a sort of public business and their
employees a kind of public officers.”’

AUSTIN v. HUDSON RIVER R. R. Co. 25 N. Y., 334.
An owner of land, when making an excavation on it, owes a duty to thead-
joining owner to make it ina careful manner.
A lessee, injured by a negligent excavation on adjoining land, may recover
the resulting damages.

Plff's, lessees of certain premises, adjoining those of deft, the
latter in making excavations on its own premises did it so neg-
ligently as to injure a house built by plffs on theirs,

(Verd. for plffs.—Aff. at Gen. T.—-Aff.)
1862. } Cases CONDENSED. 43

 

ernst v. Hupson Riv. R. R. Co. 24 How. Pr., 97.

Plff's intestate killed at deft’s crossing.

(As the statement of facts in this report is said by Porter J. in
35 N. Y., p. 21, on the next appearance in the Court of Appeals
of this much tried case, to be “essentially erroneous” it can
subserve no good purpose, to resurrect the opinion of the Court
of Appeals upon this its first appearance there, especially
as it was not reported in the regular series.)

BIssELL v. NEw YORK Cent. R. R. Co. 25 N. Y., 442.

A common carrier may lawfully contract to exempt itself from liability for
its negligence in consideration of carrying a person and his property at
reduced rates.

Plffs intestate negligently killed on deft’s road, riding on cat-
tle train, under agreement by which deft was to transport his
cattle at reduced rate, he accompanying them without extra
charge, under provision, ‘‘ the persons riding free to take charge
of the stock do so at their own risk of personal injury from
whatever cause.”

(Verd. $5000.—Aff. at Gen. T.—Rev. new tri. ord. }

Hinps v. Barton. 25 N. Y., 544.

In an action for negligent firing of a building by sparks from a steam
engine, evidence of the distance at which other fires had been kindled by
sparks from the same engine is admissible.

If the management of asteam engine is negligent, it is immaterial that the
engine is constructed and managed in the usual way.

Plff's house burned by sparks from a stack of steam dredge
near by, allowed to escape by negligent management of deft ;
evidence was received that at other times, sparks from this stack
at distances greater than that of fire in question had caused fires;
court declined to charge that if deft’s dredge was constructed
in the form generally adopted and used for the purposes to:
which such dredges are generally applied, and it was used and
applied in the ordinary manner and with the usual guards and
precautions adopted by persons using them, there then had been
no such negligence as would render the defts liable; but
44 Cases CoNnDENSED. [1862,

 

it charged if the jury found that defts were guilty of actual
negligence in the use of the dredge, and by means thereof had
fired plff’s property, he could recover.

(Verd. for Plff.—Aff. at Gen. T.—Aff.)

$

Wricut v. N. Y. Cenrran R.R. Co. 25 N.Y, 562.

The master is not liable to one servant for the damages resulting to him from
another servant’s disregard of prudence in carrying out the master’s
regulations.

A superintendent, who details one servant to take another’s place to meet
an emergency occasioned by sickness, is not doing master’s duty within
the rule requiring masters to employ competent servants.

The risk of collision under the running regulations is assumed by servant.

PIff, brakeman, injuredin collision at night, between two
trains, single track, collision due not to improper time table, nor
to incompetency of engineer but to his negligent disregard of
running regulations and ordinary rules of prudence (p. 569);
regular engineer sick, he detailed to take his place, not familiar
with this part of road, told manager who detailed him not suffi-
ciently acquainted with it to take train over at night, othérwise
competent, knew other train was to switch at station to lethim
pass, without stopping if had time, saw other train, thought it was
stationary, in fact switching, both trains ahead of time, he ap-
proached at high speed, without assuring himself other train
was where it should have been to permit him to do so, collision
result of reckless speed, not of ignorance of road. Injury, leg
broken, &c.

(Verd. $2500.—Aff. at Gen. T.—Rev. new tri. ord.)

Norte. -—‘‘Had he caused the trains to berun short handed, it ‘would have
been an act of negligence on the part of one of the servants of the company,
for the consequences of which defendants would not have been liable to
their other employees,” per AllenJ. This illustration is interesting in view
of the subsequent decision in the Flike case exactly the other way, and

still more interesting in view of the fact that the Flike case is slowly
becoming overruled.

 

Drew v. SIXTH AVE. R. R. Co. 26 N, Y., 49.

A street car company is liable for the damages resulting from the negligence

of its employe while assisting a child in getting on board by the front
platform.
1862-63. | Cases CONDENSED. 45

It is not negligent in law for a parent to send a boy of eight years of age
to school without a protector.

A parent suing for loss of services through negligence can recover
prospective damages.

Plff’s son, 8 years old, run over by deft’s horse car; on his
way to school, car came up, did not stop, snow on ground,
brakeman assisting driver, seized boy to lift him on front plat-
form, boy slipped from grasp, fell on track, wheel crushed. foot,
amputated ; plff kept store, boy assisted, and went errands.
Injury, foot amputated.

(Verd. $2,500.—Aff. at Gen, T.—Aff.)

ALDEN v. N. Y, CENTRAL R. R. Co. 26 N. Y., 102.

A common carrier is an insurer to its passengers of the road-worthiness of
its vehicles.

Plff passenger, injured by deft’s car derailed by broken axle,
unusually cold day, iron brittle, small crack in axle, so covered
by the wheel undiscoverable without taking wheel off, axle un-
safe. Injury, back, neck, head and hand injured.

(Verd. $1,150. Aff. at Gen. T.—Aff.)

Hance v. Cayuca & Sus. R. R. Co. 26N. Y., 428.

Negligence of an owner of cattle in allowing them to escape from his con-
trol and stray on a track is an answer to an action to recover damages
for the negligence of a railroad company in omitting to keep its cattle
guards in proper condition.

Piff’s cow, escaping from his control through his negligence
and straying on to deft's track across a cattle guard upon snow
which deft negligently omitted to remove, was run over by its
locomotive.

(Judg. for plff in Justice’s court.—Reversed in County Court.
—Reversal reversed in Supreme Court.—Reversal of Sup. Crt.
reversed in Court of App. and reversal of County Crt. aff.)

Moore v. WESTERVELT. 27 N. Y., 234.
1st Appeal. 21N. Y., 103.

A sheriff is not an insurer of goods in his custody as sheriff.
The question litigated on this trial was whether a sheriff is
46 Cases CONDENSED. [1863.

 

an insurer of goods in his custody, or a bailee; court charged
in effect, duty of sheriff to take such steps to insure the safety
of the coal as a prudent man would have been expected to take
as to his own coal; and refused to charge that the sheriff was
bound to take more than ordinary*care of the coal.

(Verd. for Deft.—Aff. at Gen. T.—Aff.)

Brace v. N. Y. Cent. R. R. Co. 27 N. Y., 269.

The statute (Laws of 1850, chap. 140, § 44) requiring railroad companies
to maintain cattle guards ‘‘at road crossings ’’ was intended to include
streets as well as roads.

The fact that railroad company has cainavedl a'cattle guard at a street in
deference to complaints of citizens against it as a nuisance is no defense
to an action under the statute to recover damages resulting from a failure
to maintain such guard in compliance therewith.

Piff’s horse killed by deft’s locomotive, got on to track from
highway, no cattle guard; had been one, village had grown up
along highway so that it had become a street, inhabitants com-
plained to deft against cattle guard as a nuisance, deft
removed it.

(Verd. directed for Plffi—Aff. at Gen. T.—Aff. )

HAMILTON v. MCPHERSON. 28N., Y., 72.

Neglect by carrier to deliver oats within agreed time. Became
heated and mouldy; if properly cared for by plff’s agents, would
not- have been injured. edd, carrier not liable.

HATHORN v. Evy. 28 N. Y., 78.

Action by carrier for freight on flour ; counterclaim, damages
for injury to it from wetting ; agreement that plff would allow
it to remain on board ninety days after arrival at destination ;
after such arrival consignee refused to receive it, remained on
board, collision with another vessel, not due to plff’s negli-
gence, boat sprung a leak. Held, agreement did not continue
against plff a liability as carrier.
1863.] Cases CONDENSED. AT

 

MORPHY v. COMMISSIONERS OF EMIGRATION.
98 N.Y., 134.

The doctrine of respondeat superior does not apply to the commissioners
of emigration in the case of the loss of an emigrant’s baggage at Castle
Garden.

Or,

The commissioners of emigration are not the superiors of persons licensed
by them to transport emigrants’ baggage.

Plff, an emigrant, trunk delivered from ship to tug chartered
by defts; checks given to her by person on the tug, taken to
Castle Garden, there lost ; defts acted as commissioners of emi-
grants under various statutes, not engaged in the transportation
of emigration, only licensed others to carry it on.

(Verd. for plff.Rev. new tri. ord.—Aff. Judg. absol. for
defts. ) ,

WILLIAMS v. VANDERBILT. 28 N. Y., 217.

It is the duty of a common carrier, in case his means of transportation fail
him, to use all reasonable care and diligence to provide other means.

Time lost by a passenger through an unreasonable failure of a common
carrier to forward him on his journey, his expenses, the cost of continu-
ing his journey, or his return if necessary, sickness occasioned thereby,
and the expense thereof, are all items of recoverable damage.

Plff's health injured, and he put to expense, by deft’s failure
to forward him on his journey ; contract by deft to carry him
from New York to San Fran. via Nicaragua, by particular
steamers; on arriving at N. the Pacific steamer found to be
wrecked ; deftneglected to forward plaintiff by another steamer,
court charged it was deft’s duty to provide another vessel with
care and diligence, and if he failed to do so, plff entitled to

recover.
(Verd. $850.—Aff. at Gen. T.—Aff.)

WARD v. VANDERBILT. 4 Abb. C. A, D., 521.
(S. C. 1 Keyes, 70.)
Facts substantially like those in Williams against same deft
28 N. Y., 217, and questions the same.
48 Casrs CONDENSED. (1864,
Kerr v. Mount. 28 N. Y., 659.

Where process issued in an action is set aside for irregularity, the party in
whose favor it was is~ued is liable for any injury to goods levied on
under it, resulting from the negligence of the sheriff.

cs

MERRITT v. EARLE. 29 N. Y., 115.

Plff on Sunday made a contract to ship horses by deft’s boat;
boat ran upon a mast of sunken vessel. Ae/d, not due to
inevitable accident; liability imposed by law, hence carrier not
relieved because contract made on Sunday.

TILLEY v. Hupson River R. R. Co. 29 N. Y.; 252.
(lst Appeal. 24N. Y., 471.)

In considering the damages sustained by next of kin regard must be paid to
the duties owing to them by the deceased, and the likelihood that those
duties would have continued through their lives to be properly per-
formed but for death.

Only new question as to measure of damages.

Piff allowed to prove, under objection, that deceased, in
addition to performing household duties, made shirts for a
dealer, taught her children, instructed them in household
affairs, nursed them in sickness, was member of church, super-
intendent of Sunday school, took part in church exercises,
exhorted at meetings; court eharged that in estimating the
damages, jury had right to consider her children’s loss in refer-
ence to intellectual, moral, physical training and such instruc-
tions as can only proceed from a mother, and to consider the
business and other capacities of the mother to discharge her
duties to her children, and that the damages were not limited
to periods of infancy, but extended through their lives.

(Verd. $5000.—Aff. at Gen. T.—Aff.)

 

GARLINGHOUSE v. JACOBS. 29 N. Y,, 297.

Where commissioners of highways have not sufficient funds to repair all
the highways under their care, negligence can not be predicated of their
failure to repair one rather than another,
1864. | Cases CONDENSED. 49

 

Plff's stage and horses injured by the falling of a bridge belong-
ing totown, of which defts were com’rs of highways; they
had allowed bridge to remain unsafe after notice, had funds
enough to repair this bridge, but not enough to repair all the
bridges in their district.

(Report in favor of defts.—Aff. at Gen. T.—Aff.)

WILbDs v. Hup. R. R. Co. 29 N. Y., 315.
(1st Appeal. 24 N. Y., 480.)

Facts as before.
(Non-suit.—Aff. at Gen. T.—Aff.)

Note.—Hogeboom J. who had granted the non-suit, was on the bench in
the Court of Appeals at this time. He wrote a dissenting opinion holding
that he himself had been in error in granting the non-suit, all the other
judges concurring in holding that he had been right.

Newson v. N. Y. Centrau R.R.Co. 29 N. Y., 383.

When a person is engaged in transferring freight from a car on a side track
to his wagon at a spot designated by the company’s agent, the company
owes him a duty not to run a locomotive on an adjacent side track, if
near enough to frighten his horses,

It is not contributory negligence for a person engaged in transferring
freight from a car on aside track to his wagon, at a spot designated by
the company’s agent, to allow his horses to remain attached to the
wagon, even though there is another side track near, and he has been
warned of danger.

Piffs intestate died from injuries received while endeavoring
to control his team of horses, frightened by a locomotive back-
ing down ona side track near them, while he was unloading
for his employers gravel from deft’s car on another track ata
point near freight depot designated by deft’s agent; team be-
tween the two tracks, space fifteen feet wide; while taking
previous load, horses frightened in similar way, had controlled
them ; had been warned by flagman place dangerous. ‘

(Verd. $2000.—Aff. at Gen. T.—Aff.)
50 Cases CoNDENSED. (1864.

 

CREED v. HarTMann, 29 N, Y., 591

It is not negligent for a passer-by to walk over boards bridging an excava.
tion on a sidewalk.

Where an excavation in a highway is dug without license from the proper
authorities, the fact that it was dug by a contractor does not shield the
person for whom it was dug from liability for damages resulting from it.

Piff passing along sidewalk, injured by breaking of boards
bridging excavation; deft member of firm of contractors hav-
ing contract with owner of lots to do mason work in the erec-
tion of houses on them; sub-contractor agreed with them to
excavate the sidewalk and to prevent all accidents by due care;
no license from city authorities shown. Injury, leg broken.

(Verd. $600, excep. in first inst. at Gen. T.—Judg. ord. for
plff.—Aff. )

WeeED v. N. Y, & Hartem R.R. Co. 29 N. Y., 616.

Action to recover damages for diversion of stream by con-
struction of deft’s road through plff’s farm ; only question one
of practice.

Bank oF N. Y. ». Bank or On10. 29 N. Y., 619.

The neglect of cashier of a bank to limit his endorsement as cashier ona
transfer of a note to an agent for collection only, whereby the agent has
the apparent jus disponendi of the note, is the negligence of the bank.

 

SELDEN v. Det. & Hup. Can. Co. 29 N. Y., 634.

Action for damages to land from enlargement of deft’s canal
for which plff had given license, no proof that in following the
license deft had been negligent.

(Verd. for deft.— Aff. at Gen. T.—Aff. )

Held, to be same in principle as Bellinger case, 23 N. Y., 42.

 

PHELPS v. Walt. 30 N. Y., 78.

To drive suddenly and rapidly into a street without looking to see if any
one is crossing it, is negligent.
1864.] Cases ConDENSED. 51

 

Master and servant may be joined in an action to recover damages result-
ing from the servant's negligence.

Plff crossing street with due care, run over by horse and
wagon, driven by one deft, belonging to the other, coming into
street from a yard, driver’s attention engrossed, drove out sud-
denly and rapidly. Injury, shoulder broken, wrist sprained, &c.

(Report for $375.—Aff. at Gen. T.—Aff.)

HALEY v. EARLE. 30 N. Y., 208.

Negligence which does not contribute to an injury is not contributory
negligence.

Plff's barge in tow by deft’s steamer, sunk by latter’s neglig-
ence, no one at barge’s helm ; court charged absence of helms-
man not material if it did not contribute to the injury.

(Verd. for plff.—Aff. at Gen. Term.—Aff.)

MULHADO v, B’KLYN City R. R. Co. 30 N. Y., 370.

In the absence of notice to the contrary, it is not negligent for a passenger
to alight from the front platform of a street car which has fully stopped.

A passenger’s notice to a car driver to stop the car, is, if obeyed, as effect-
ual as notice to the conductor, to protect him while alighting.

It is not error for the trial court to allow a party to exhibit the injured part
of his body to a surgeon in the presence of the jury.

PIff thrown to the ground by sudden starting of deft’s car, as
he was alighting from front platform, car having come to full
stop, notice to stop given by plff to the driver, no notice
to passengers not to get off front platform was shown; plff.
allowed to show his arm to a surgeon in presence of jury. In-
jury, left arm broken, head injured.

Verd. $900.—Aff. at Gen. T.—Aff.)

MicHakEts v. N. Y.C.R. BR. Co. 30 N. Y., 564.
If an “att of God” is relied on to excuse a carrier for injury to goods.in
transit, he must show that his own negligence did not assist.
Plff's goods injured by an expectable freshet and against
which deft by use of reasonable care might have guarded.
52 Cases ConDENSED. (1864.

 

Reap v. Spauupine. 30 N. Y., 630.

Goods injured by ‘‘act of God,” would have escaped if car-
rier had forwarded with diligence. Held, liable.

a

Dicxinsv. N. Y. 0. R. R. Co. 1 Abb. ©. A.D., 504.
(S. C. 1 Keyes, 23.) (Ist Appeal. 23 .N. Y., 158.)

Arailroad company must take due precautions to see that its passengers.
may alight from its trains with safety at stations.

Whether a passenger, is guilty of negligence in alighting from a train, at a
station, which is not announced, and to which he is a stranger, and when
a hurried stop is made, is a question of fact.

Where in a death case, there is no evidence of actual damage to the next of
kin, it is nevertheless for the jury, not the court, to say whether only
nominal damages shall be awarded.

Piff’s intestate, passenger, run over by express train while
leaving deft’s way train at station, station on north side of
track, village on south side, not announced, the way train be-
hind time, hurried stop, she stranger to the place, got off south
side, no precautions taken to see that deceased should alight
with safety, deceased left husband, no children, next of kin
brothers, sisters, nephews and nieces ; court refused to charge
that plff could only recover nominal damages, also refused to
charge that there was no evidence of pecuniary injury to next
of kin, and that relation of brother and sister did not raise pre-
sumption of pecuniary loss ; charged that ‘‘the only damages
the jury can give in this action, if they find for plaintiff, are
such as they shall deem a fair and just compensation not
exceeding $5000, with reference to the pecuniary damages
resulting from the death of Mrs. Dickens to her next of kin ;”
also charged whether more than nominal damages, and if so,
how much were questions for jury.

(Verd. $ 500. —Aff. at Gen. T.—Aff. )

HONEGSBERGER v. SEC. AVE.R.R.Co. 2 Abb. 0.A.D.,378.
(S.C. 1 Keyes, 570.)

PIff's son, boy of 6, run over by deft’s car, while crossing the

street on way home from school unattended, car driver at the
1865. ] Cases CoNDENSED. 53

moment talking to passenger, face turned from horses, did not
see the boy ; court charged boy not “to be held to the same
degree of caution, foresight and discretion that would be ex-
acted from an adult.”

(Verd. for plffs expenses.—Aff. at Gen. T.—Rev. new tri.
ord. )

Note.—As this judgment was not reversed upon the ground that the father
was negligent as matter of law, in allowing a boy of six to go to school unat-
tended, nor yet on the ground that it appeared that the boy himself had
been guilty of negligence, but upon a charge which would now be held to
be entirely sound, it can do no good to state the rule of this case. Its rule,
that infants must exercise the same degree of care as adults of ordinary
prudence, is not the law of this state, and was substantially repudiated
(sub stlentio) the following year in the Jetter case, same vol. p. 458, andin
Mentz and Thurber cases.

BuEu v. N. Y. Cent. R.R. Co. 31 N. Y., 314.

It is negligent to allow a collision between two trains going in opposite di-
rections on the same track. ‘

It is not negligence for a passenger to attempt to leave a car in order to
escape an impending collision.

The statutory notice prohibiting passengers from riding on car platforms,
does not apply to acase where the passenger is justifiably on the plat-
form. s

Expert evidence that an injury is permanent is admissible.

PIff injured while trying to escape from deft’s car, in order to
avoid an impending collision with train approaching on same
track, had gotten partly through car door, one foot on platform,
when collision occurred; those who remained in their seats
uninjured ; notice up prohibiting passengers from standing or
riding on platform, and that safety required them to keep their
seats; expert evidence as to permanence of injury allowed.
Injury, leg broken.

(Verd. $4,450.—Aff. at Gen. T.—Aff.)

 

BuRNHAM v. BUTLER. 31 N. Y., 480.

Whether due care has been used in trying to pass another vehicle on the
road, or in refusing to yield passage, is a question of fact.
54 CasEs' CONDENSED. [1865.

 

Plff injured in an upset of his sleigh in collision with runaway
horse and sleigh coming up behind him, runaway caused by
upset of latter sleigh due to rivalry between drivers of two
sleighs still further behind, one attempting to pass the other,
the latter trying to prevent the passing, in the course of which
one of the rival sleighs dashed against a sleigh in front, which,
striking a snow bank upset, frightening the horse, and on its
driver letting go the reins he ran against plff's sleigh: plff sued
rival drivers as the cause of his injury. Injury, nose cut, sleigh
and horse injured.

(Judg. by Justice of Peace $30.—Rev. by County Court.—Aff.
by Gen. T.—Rev. justice’s judg. aff.)

VaN BUSKIRK v. ROBERTS. 31 N. Y., 661.

PIff passenger, deft common carrier, neglected ‘to ‘transport
plaintiff with due diligence resulting in his sickness, and other
damage.

(Verdict $g00.—Aff. at Gen. T.—Aff.)

Quimby v Vanderbuilt 17 N. Y., 306, followed.

STINSON v. N. Y. CENTRAL R. R.Co. 32N, Y., 333.

A common carrier owes to a shipper while in the act of loading a car,
the duty not to move the car without warning,

An agreement by a shipper of animals, tu load and unload the stock at his
own risk, applies only to injury to the stock.

Loading stock on a car is not partofa journey soas to come within a clause
on a pass exempting a carrier from injuries to persons riding free to
take care of the stock.

Piff's intestate, while putting his horses and buggy on deft’s
car, killed by its train without warning backing against the
car; by the contract of carriage deceased agreed to load the
stock at his own risk, and that persons riding free to take
charge of it, were to do so at their own risk of personal injury
from whatever cause.

(Verd. $2,500.—Aff. at Gen. T. —Aff. )
1865. } Cases ConDEnSED. 55

 

Frevp v. N.Y. Cenrrau R. R.Co. 32N Y., 339.

Evidence that locomotives can be constructed so as not to scatter coals of
fire, and that if they do, they are out of order, followed by evidence that
coals are scattered on a track, is admissible to show improper construc-
tion or management.

As to fire on former occasions, rule in Sheldon case, 14 N. Y., 218, reaf-
firmed,

Plffs cord wood on land adjoining deft’s track burned by fire
spreading from the track, on which engines were run which
scattered coals, some having no screens on the fire-pan to re-
tain the coals; evidence that deft’s engines droppcd coals at
times prior to the fire in question was admitted; also of experts
that they could be constructed so as to avoid scattering coals,
and must be out of order if they do.

(Verd. for plff.— Aff. at Gen. T.— Aff.)

MILLS v. CiTy OF BROOKLYN. 32 N. Y., 489.

A municipality is not bound to provide sufficient sewers to carry off all
the rain which may fall within its boundaries.

Plif's house and lot injured by flooding, sewer built by deft,
insufficient to carry off rain.
(Verd. for plffiAff. at Gen. T.—Rev. new tri. ord.)

Nore.—In Hines v. City of Lockport, 50 N. Y., 236, Rapallo, J., states the
general rule as decided by this case to be as follows :

Where power is conferred upon a municipal corporation to make public
improvements and keep them in repair, the duty to make them is gzasz
judicial and discretionary, for a failure to perform which no action lies.

 

Brown v. N. Y. Cent. R. R. Co. 32 N. Y., 597.

It is negligence for a railroad company to make a running switch without
warning at a village crossing.

It is not negligence for a person approaching a railroad crossing to fail to
anticipate that a train which has just passed may be followed by de
tached cars,

Evidence of complaints of pain by an injured person after action begun
are admissible.

The rule as to imputed negligence applies to a passenger in a public stage.
56 Cases CoxDENSED. [1865.

 

Plff injured at deft’s crossing in village, riding in stage, train
making a running switch, front part of train had passed by,
also the car to be switched ; stage driver having watched that
car till it passed, started up without looking in the other direc-
tion, drove on the track, when the Tear part of the train, which
had been hidden by houses and shrubbery, came upon him;
whipped up but not in time to avoid collision ; evidence allowed
of complaints by plaintiff of headache since the injury and
after action begun, she having testified not so troubled before.
Injury, contusion of head causing injury to sight and constant
headache

(Verd. $500.—Aff. at Gen. T.—Aff.)

Nore,—The court charged that if the driver was negligent, ple could not
recover, Court of Appeals, holding this charge was correct, discuss the

driver’s negligence. Hence it is not’ oézter, but the rule as to imputed
negligence has been pretty well eaten away by later cases,

CHAPMAN v, N. Y. Cent. R. R, Co. 33 N. Y., 369.

Ifit is part of a servant’s duty to have an oversight of his master’s property
during hours belonging to himself,adjusting what may be amiss, his master
is responsible for the servant’s negligent use of such property for his own
purposes in his own time.

Plff's horses killed by deft’s train; strayed on track through
open bars in fence, bars left open by deft’s servant after driv-
ing through, servant on his own business after his day’s work
for deft was over, but it was his duty if at any time he saw
anything amiss to fix it.

(Verd. for plff—aAff. at Gen. T.—Aff.)

Hoert v. Swirt., 33 N, Y., 571.

An innkeeper is liable for the loss of a guest’s property burned in a fire at
his inn whether it is a negligent fire or not.

°

INGALLSBEE v. Woop. 33 N. Y., 577.

An innkeeper is not responsible as innkeeper, however he may be as bailee
for hire, for the safe keeping of a horse left at his stable by one who is
net a guest.
1865. } Cases CONDENSED. 57

 

McManon v. THE Mayor &c. oF N.Y. 33 N. Y., 642.

It is negligence in a municipality to construct a sidewalk over a deep hole,
without filling it up,

The negligence of the parents of an intelligent boy of eleven years is im-
material.

To entitle legal representatives to recover under the ‘‘ Death Act,” it is not
indispensable that the deceased should leave him surviving botha widow
and next of kin.

Plff's intestate, boy of 11, on deft’s sidewalk, killed by its
caving in; city’s workmen were filling up a well-at the curb,
which extended under the sidewalk, had not put up any guards,
nor given notice sidewalk dangerous ; there was no evidence
of any negligence on part of boy’s parents: court refused to
charge, if jury believed that negligence of either parent con-
tributed to his death, deft entitled to verdict; also refused to
charge, deft entitled to verdict inasmuch as there cannot be a
recovery by a representative of an infant unless there be a
widow and next of kin of him surviving.

(Verd. $2333.—Aff. at Gen. T.—Aff.)

Deyo v. N, Y, CENTRAL R, R. Co. 34N, Y,, 9.

A common carrier is not responsible to its passengers for the damages re-
sulting from an accident due to trespass, unknown and not expectable.
PIff passenger, injured through train running off track, night,

spreading of rails, due to removal of spikes by trespassers, just

before passage of train, without deft’s knowledge.
(Nonsuit—Aff. at Gen. T.—Aff.)

STILLWELL v. N, Y. CENTRAL R, R. Co, 34 N, Y,, 29.

The declaration of an injured person’s wife made at the time of an accident
that the defendant was not guilty of negligence can not be treated as an
admission of the fact by him.

Plff injured in same accident as that in Brown agst same
deft, 32 N. Y.,597. Same state of facts proved; deft sought to
distinguish it by reason of a declaration by plffs wife at the
time that deft was free from negligence. Injury, bruises and
internal injuries.

(Verd. #1,016.—Aff. at Gen. T.—Aff.)
58 Casns CONDENSED. [1865.

 

BALDWIN v. Crry OF OSWEGO. 1 Abb. C. A. D., 62.

Where the officials of a city, having the power, by assessing land benefitted
by an improvement, to raise the necessary funds to pay the contractor
for making such improvement, neglect to make the necessary assess.
ment,an action will lie in favor of the contractor against the city to re-
cover the damages sustained thereby.

CASTLE v. DuRYBA. 1 Abb. C. A. D,, 327.
(S.C. 2 Keyes, 169.)

It is not negligent for a person to watch a military drill when not apprised
that an order may be given to the soldiers to fire.

It is negligent for a militia officer drilling soldiers in the presence of spec-
tators to order his men to fire when their guns are pointed towards the
spectators, even though he has previously taken precautions that their
guns shall not be loaded with ball.

A militia officer, who orders the soldiers under his command at drill to fire
as a partof the drill whereby a spectator in range of the guns is wounded
by a ball, is guilty of trespass, without regard tu the precautions that
were taken by him and his subordinate officers against the guns being
loaded with ball.

suit by husband and wife; wife spectator of military drill,
accidentally shot; deft colonel of seventh regiment, state mil-
itia, summer encampment, pursuant to orders of superiors,
paraded, under deft’s orders, spectators present outside line of
picket guard ; just previous to parade one company had been
firing at a target; in some cases guns did not go off, caps only
exploding ; precautions had been taken and orders issued by
deft before the parade to have all the guns unloaded, during
the parade deft personally gave orders to fire; deft was not re-
quired by any public duty to cause his men to discharge their
firearms at all, while people were within range; court refused
to charge that it was negligent in plff to attend the parade; it
charged that the question for the jury was whether deft in giv-
ing orders to fire in the manner he did, under all the attend-
ing circumstances was or was not guilty of negligence, or
whether he omitted to give any order or take any precaution
which under the circumstances he should have given or
taken.

(Verd. $1,500.—Aff. at Gen. T. —Aff.)

NoTE.—Although the trial court sent the case to the jury as one merelyof

negligence, and the Court of Appeals affirmed the judgment on that ground,
it went further and held that defendant was liable in trespass, Denio, C. J.,
1865-66. ] Cases ConDENSED. 59

 

saying, ‘‘the case does not arise out of negligence, for the injury was di-
rect and immediate, and not consequential.’? Hence the third rule is given
as the law of the state upon a very important question.

JETTER v. N.Y. & Har. R.R.Co. 2 Abb. C.A.D., 458.
(S.C. 2 Keyes, 154.)

It is negligence to drive a vehicle into a street round a corner at a rapid
rate of speed.

Whether it is negligent for the attendant of a deaf child to allow it to dart
ahead at a street crossing where no vehicles are in sight is a question of
fact.

A person who uses another’s vehicle is responsible for its fitness for the use
to which it is put.

Piff’s daughter, a girl of 6, deaf, partly dumb, run over by
car on deft’s track at street crossing, was accompanied by ser-
vant; as they came to the crossing, plff ran a little in advance;
the car belonged to another company, brake out of order, in
use by deft, driven out of its depot, round curve into centre of
street with horses on the run in violation of city ordinance pro-
viding that cars should not turn curves faster than a walk, nor
travel on streets at faster rate than 6 miles an hour: court re-
fused to charge that it was negligence on plffs part to permit
the child, suffering under such a deprivation, to be in the street
without protection; also, that defts were not liable for any de-
fect in the brake ; charged, plff's right to recover depended on
whether he has satisfactorily established that the child was in-
jured through the negligence of deft or servants, and that there
was no neglect on his part, or which is the same thing, that
there was no neglect of the child directly contributing to the in-
jury. Injury, arm amputated.

(Verd. $1,000.—Aff. at Gen. T.—Aff.)

NoTe.—Brown v. Buffalo St. L. R. R., 22 N. Y., 191 is said to stand on
doubtful ground as to ordinance.

MERRICK v. VAN SANTVOORD. 34N. Y., 208.

The facts that a foreign corporation was organized to do business in this
state, and that its existence inits native state is merely formal, do not
operate to make its officer or stockholder in this state liable for its neg-
ligence committed in this state.
60 CasEs CONDENSED. ; (1866.

 

Plff's assignor’s canal boat injured through negligence of
steamboat towing it, steamboat owned by Steam Navigation
Co., of Connecticut and deft Brainard jointly ; the Steam Nav-
igation Co., while foreign corporation in form, was organized
to do business in this state; deft Van Santvoord’s testator was
officer and stockholder in it.

(Finding for plff—Aff. at Gen. T.—Rev. new tri. ord. as to
Van Santvoord ; aff. as to Brainard.)

ROBINSON v. CHAMBERLAIN. 34N. Y., 389.

A contractor employed by the state pursuant to law to keep its highway
in proper condition for travel is answerable in damages to any one
specially injured through his neglect to do so.

Plffs canal boat injured through neglect of deft to keep canal
lock in repair, deft public contractor under contract with canal
commissioners to keep in repaira section of state canal.

(Nonsuit—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
agst. deft.)

 

Brown v N. Y. Cent. R. R. Co. 34N. Y., 404,

A railroad company owesa duty to its passengers not to run its train at
speed when a cow is grazing so near the track as to afford likelihood of a
collision.

PIff passenger, train thrown off track through running against
a cow ; cow grazing at side of track in full sight of engineer for
some distance off; train continued at full speed, cow crossed
the track as it came up.

(Nonsuit.—Aff. at Gen. T.—Rev. and new tri. ord.)

NotE.—This would hardly be held to be law now. Heavy engines and

high rates of speed are thought to lessen such dangers; at most it would be
a question of fact.

 

BRADLEY v. Burr., N.Y. & E.R. B.Co. 34N. Y., 427.

The convenience of the public in resorting to its depot is no reason why a
railroad company should omit at a road crossing near its depot to comply
with the statute as to maintaining cattle guards,
1866. ] Cases CONDENSED. 61

 

Plff's horse killed by deft’s engine, strayed on the track from
highway through want of cattle guard: reason there was none
was that it was near depot, near which were several roads, and
the railroads “ were left open for convenient access to said depot
for the public.” Referee found defts not bound under the
circumstances to maintain a cattle guard at that place.

(Non-suit.—Rev. at Gen. T.—Aff. judg. absol. against deft.)

McDonaLp v. WesTERN R. R. Co. 34 N.Y., 497.

Plffs goods destroyed by fire, deft an intermediate carrier ;
instead of delivering them to next carrier stored them at end of
own route without notice to connecting carrier. Held liable.

Moore v. GOEDEL. 34N. Y., 527,

Evidence that an overflow of water to a lower floor occupied by the plaintift
was caused by a derangement of water fixtures in the part of an upper
floor occupied by defendant is not sufficient to warrant an inference of
negligence by the latter, where his possession is not exclusive of that of
another tenant, and it does not appear that the derangement was due to
any act of his.

Where the tenant of that part of a building in which is situated a stop-cock
toshut the water off from the whole building undertakes to shut the water
off at night for the protection of all the tenants from the consequence of
an overflow, his failure to shut it off is negligence, which prevents any
recovery by him for damages resulting from such an overflow.

Plffs goods on first floor injured by overflow due to derange-
ment of water fixtures in closet on third floor; plffs tenants
on first floor and cellar; defts sub tenants as to part of
third floor including closet of tenants of second and third floors ;
defts possession not exclusive of latter, only aright to store
goods and do business in business hours; no evidence derange-
ment due to defts, nor that closet was used by them ; previous
overflow from same cause; to prevent recurrence tenants of
second and third floors had becn in the habit of going to plff's
cellar to shut water off at night from whole building ; plffs ob-
jected, promised to shut it off themselves, neglected to do so
on night in question.

(Verd. for defts.—Aff. at Gen T.—Aff.)
62 Cases ConDENSED. (1866.

Rots v. Burr. & St. L. KR. KR. Co. 34 N. Y., 548.

Plff passenger, left baggage at end of journey in deft’s pos-
session over night ; depot burned accidentally. Held not liable.

 

s

BEISEGEL v. N. Y. Cent. R. R. Co. 34 N. Y., 622.

Whether precautions observed by a traveller on approaching a railroad
crossing are sufficient under the circumstances is a question of fact.

PIff crossing deft’s tracks in Rochester, after stopping to look
and listen, saw and heard no train, vision obstructed by lines
of cars on two of the tracks, hit by rapidly running engine,
from which no warning was given. oo

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

WILLIS v, Lone Isuanp R. R. Co. 34 N. Y., 670.

Ti is not contributory negligence for a passenger to ride on the platform
when the company fails to furnish him with a seat.

A passenger is not bound to go from car to car in search of a seat while the
train is moving so fast as-to make it hazardous to do so.

A passenger is not obliged to take on himself the decision of the question
whether a seat is improperly occupied.

Plff passenger, injured in accident occurring through negli-
gence of engineer; was riding on car platform, all seats inside
occupied by passengers except two, one full of luggage, the other
by the superfluous bulk ofa stout man spreading over, conductor
made no attempt to clear these seats for plff nor did he inform
plff of vacant seats in other cars. Injury, both legs lacerated
and bruised.

(Verd. $3100.—Aff. at Gen. T.—Aff.)

Ernst v. Hupson Riv. R. R. Oo. 35 N. Y., 9.
(1st Appeal. 24 How. Pr., 97.)
Whether the precautions observed by a traveller on approaching a railroad

crossing are careful enough under the circumstances is a question for the
jury.
1866. } Caszs CoNDENSED. 63

 

Or,
When a traveller approaching a railroad crossing observes some precau-
tions, it is for the jury to say whether he was negligent in crossing.

Piff’s testator, while crossing deft’s track, killed by a loco-
motive, bell not rung, whistle not blown, flagman absent; de-
ceased shown to have used some precautions in approaching
track.

(Nonsuit.—Aff, at Gen. T.— Rev. new tri. ord.)

Mackay v. N.Y. Cent. R, R. Co. 35 N. Y., 75.

Where a railroad company has itself obstructed the sight of its track at a
crossing, it is not negligence for a traveller to drive up to the tracks
slowly without stopping.

Plif's intestate, killed by deft’s train, driving over crossing
slowly, windy day, snow blowing, piles of wood placed by
deft obstructed sight of approaching train in time to stop, no
signals given.

(Verd. $4500.—Aff. at Gen. T.—Aff.)

Notr.—Upon the question of contributory negligence, what difference
can it make that the company erected the obstruction? Yet the court lay
stress on this (See p. 79). It would seem thatif there is anything at a cross-
ing to prevent sight along the track, a prudent man would feel it all the
more necessary to stop and listen.

RyYAn v. N. Y. Cent. R. BR. Co. 35 N. Y., 210.

A negligent fire on one’s own land is not the proximate cause ofa fire on a
neighbor's land resulting from the heat and sparks of the first fire.

In a populous city one neighbor is not liable to another forthe consequences
of a fire communicated to the latter house from that of the former, even
though the first fire was the result of negligence.

Plff’s house in a city, burned, took fire from heat and sparks
from burning shed on deft’s property, latter set on fire through
deft’s negligence.

(Nonsuit.—Aff. at Gen. T.—Aff.)

NotTEe.—While both rules are stated in the opinion as ground for the de-

cision, it is believed that the first ground no longer obtains as law in this
state. See note to O’Neill case, 115 N.Y., 579.
64 Cases CONDENSED. [1866.

 

MILLARD v. BRowN. 35 N. Y., 297.

Where a plaintiff seeks to enhance the damages for a personal injury by
showing circumstances of aggravation, defendant has the right to give
evidence tending to exculpate him from personal misconduct or reckless-
ness. .

Where negligence is: of such a character as to amount to misconduct or
recklessness a jury may give exemplary damages.

PIff passer-by, fell into unguarded excavation in sidewalk, in
front of deft’s premises, night, excavation there several months,
had been guarded by a fence, fence thrown down; evidence
that deft had dug hole for sidewalk cellar of house he was
building, and that building was delayed on account of dispute
with next owner as to boundary line excluded ; court charged
might give plff exemplary damages if satisfied deft guilty of
gross negligence in leaving cellar in exposed and dangerous
condition. Injury, arm crippled.

(Verd. $700.—Aff. at Gen. T.—Rev. new tri. ord.)

MABLER v. Norwich & N, Y. TRAN. Co. 35 N. Y., 352.

The death act of this state has no extra-territorial force.
The waters of Long Island Sound to the centre line are within the jurisdic-
tion of this state,

Plff's intestate drowned through deft’s negligence at a point
in Long IslandSound two miles east of Sands Point, and within
a mile of Long Island shore, i. e., on that side of the centre line
of the Sound.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

GREEN v. Hup. Riv. R. R.Co. 2 Abb. C. A. D., 277.
(S.C. 2 Keyes, 294. )

A husband can not maintain an action for damages for loss of services of
his wife resulting from her death,
Plff’s wife killed through deft's negligence ; he sued for dam-
ages for loss of service ; deft demurred, no cause of action.
(Dem. sustained.—Aff. at Gen. T.—Aff.)
1866. } Cases CONDENSED. 65

 

THE PEOPLE v. AMES. 35 .N, Y., 482.

A sheriff-is not guilty of negligence in failing to collect an execution out of
property levied on by him where the judgment creditor has not tendered
him a bond of indemnity after a sheriff's jury has on due notice to the
creditor found the title to it not to be in the judgment debtor.

CLARK v. Unton Ferry Co. 35 N, Y., 485.

It is not negligent in an owner of a young and skittish horse to take it on
board of a ferryboat.

A ferry company is bound to maintain its guard-chains in proper condition
to keep animals from going overboard.

Plffs horse, young, timid, frightened on deft’s ferryboat ;
chain gave way, through a defect, horse fell overboard,

drowned.
(Verd. for plffi—Aff. at Gen. T.—-Aff.)

Marrrson v. N. Y. Centr. R. R. Co. 35 N. Y., 487.

Expressions of pain by an injured person, to a physician examining him
with a view of giving evidence are admissible.

Opinions of physicians as to the cause of symptoms they observe in an in-
jured person are admissible.

Opinions of physicians as to the probable duration of the effects of an in-
jury are admissible.

Plff's wife, passenger on deft’s train, injured by train being
thrown from track through its negligence; court allowed evi-
dence of expressions of pain made by her while being examined
by physicians with the view of their testifying in the suit, also al-
lowed their opinions as to the cause of the injury, and its prob-
able duration. Injury, bruises and internal injuries, injury to
health, &c.

(Verd. $1,623.—Aff. at Gen. T.—Aff.)

OwEN v. Hupson Riv. R. R. Co. 35 N. Y., 516.

It is no answer toa charge vf contributory negligence, that an injury could
have been prevented, if defendant’s appliances had been in order.
Piff's stage injured in collision with deft’s freight cars;
court virtually charged that plff might recover though their
66 CasEs CONDENSED. [1866.

 

driver's negligence contributed to the injury, if the car brakes
were not in good order.

(Verd. for plffs.—Rev. at Gen. T. and new tri. ord. Aff and
judg. absol. for deft.)

SHEPARD t. Burr., N. Y.& E.R.R.Co. 35 N.Y., 641.

It is not negligent to pasture cattle on a farm contiguous toa railroad which
the company has neglected to fence as required by law.

Acceptance from a railroad of its covenant to fence one side of its road is
not a release of the obligation under the statute to fence the other side.

The release of one railroad company from its obligation under one statute
to maintain one half of a division fence, does not operate in favor of
another company, whose track parallels the first one, from its obligation
under a subsequent statute to maintain the whole fence,

Plffs cattle killed by deft’s train, pastured in fields along
track, not fenced; deft’s road and N. Y. Central ran through
plffs farm, north and south, deft’s road being the easterly one;
cattle strayed from westerly field over Central tracks on to deft's
track, there being no fence on either side of Central tracks;
grantor of plff had deeded to Tonawanda railroad, predecessor
of the Central, its roadway, releasing it, its successors and as-.
signs from all liability forever to fence along its line; at time
of deed, railroads only bound to maintain one half of division
fences ; afterwards act passed requiring railroads to fence both
sides ; after latter acts plff granted to defts its roadway through
his farm, it agreeing to maintain fence on easterly side.

{Nonsuit.—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
agst. deft.)

KELLEY v. Tinton. 2 Abb, C. A. D., 495.
(S. C. 3 Keyes, 263.)

The owner of a dog, known by him to be vicious, must, as to third persons
lawfully on his premises, see that he is properly secured.

Plff entering deft’s premises for purposes of trade and by in-
vitation, bitten by deft’s dog, known by deft to be vicious ;
dog was fastened, sprang at plff, broke his leather collar which
was old and worn.

(Verd. $486.75.—Aff. at Gen. T.—Aff.)
1866. ] Caszs CoNDENSED. 67

 

KIMBALL v. CONNOLLY. 2 Abb. C. A, D., 504.
(S. C. 3 Keyes, 57.)

The negligence of a county clerk in failing to return a lien by judgment on
a search, is not the proximate cause of damages arising from a sale of
the property under the lien suffered to take place through ignorance of
its existence,

Plff’s testatrix put in a search for incumbrances upon certain
of her.real estate to deft, county clerk; he failed to return a
lien by judgment against a former owner ; on the faith of the
certificate, a loan was effected by a mortgage on the premises;
the judgment not being known, its amount was not deducted
from the proceeds of the mortgage and it remained unpaid; the
premises were afterward sold under execution and day for re-
demption passed without the deceased’s knowledge; plft com-
promised with the purchaser, paid for a reconveyance, and sued
deft: to recover the amount so paid as the damages sustained
by his negligence.

(Judg. for plff.—Rev. by Gen. T. new tri. ord.—Aff. judg. absol.
agst. plff.) ‘

Smumons v. Law. 4 Abb. OC. A. D., 241.

Plff’s goods shipped from one seaport to another by a route
which included transportation across an isthmus, not delivered;
question was as to construction of bill of lading in regard to
whether deft was carrier or forwarder as to the passage of the
isthmus, on the ground that if the latter actual negligence must
be shown. Aedd, carrier as to whole route.

Staats v. Hup. Riv. R.R. 4 Abb. ©. A. D., 287.
(S. C. 3 Keyes, 196.)
A statute requiring railroad companies to build and maintain gates as well
as fences along their road, applies to a railroad company organized be-

fore the statute whose charter requiredit to buildand maintain fences, but
was silent as to its building gates.

Plffs horse run over by deft’s train, escaped from pasture
through gate out of repair; under deft’s charter (Laws of 1846,
ch. 216), it was obliged to erect a fence along its road, but not
required to build gates, but adjoinins owners were permitted to
68 CasEs CONDENSED. [1867,

 

erect gates in this line of fence to be kept in repair by the per-
sons using them ; subsequently by the general railroad laws of
1850, ch. 140, and by subsequent act, 1854, ch. 282, all railroad
companies obliged to build gates as well as maintain them in
repair. i

(Nonsuit.— Aff. at Gen. T.—Rev. new tri. ord.)

SHERIDAN v. BROOKLYN City & Newtown R. R. Co.
36 N. Y., 39.

It is not negligent in a boy to ride on the front platform of a street car,
when pushed there by a crowd of which he has become a part through
giving up his seat by the conductor’s orders.

It is negligent for the driver of a street car not to obey the signal to stop,
Plff's intestate, boy of 9, gave up seat in crowded car to adult

passenger by conductor's orders, crowded out on to front plat-

form, rule forbidding riding on front platform not being en-
forced, thrown off by passenger rushing to get off, driver not
obeying signal to stop, run over, died.

(Verd, $2500,—Aff. at Gen. T,—Aff.)

Barron v. Ciry oF Syracuse. 36N. Y., 54.

A municipal corporation, whose charter requires it to keep its sewers in re-
pair, is liable for the damages to adjoining property resulting from its
failure to doso, whether it has notice of the defect or not.

Where a citizen has connected his drain with a city sewer under permission
from the proper official, his failure to notify another official ‘of the fact, is
no defense to an action against the city for damages resulting from a set-
back of sewage through such drain due to the sewer being out of neat

Piffs property in his cellar injured by set-back of sewage
through a drain from his premises into deft’s sewer, drain con-
structed by plff under permission of deft’s street superintendent,
plff did not give to city clerk notice of his intention to, build it,
as required by ordinance; deft had omitted to keep the sewer
in repair as required by its charter, hence the set-back. ,

(Rep. for plff—Aff. at Gen. T.—Aff.) Bes !
1867. } Cases CONDENSED. 69

 

RENWICK v. N. Y. Cent. R. R. Co, 36 N. Y., 132.

The fact that a traveller approaching a railroad crossing does not select the
best spot to stop and look for a train is not conclusive against him on the
question of his negligence in crossing the track.

Plff’s intestate (dying after trial) run over at deft’s crossing,
no signal given of train approaching; he stopped at some dis-
tance from the track, looked, listened, seeing nothing, hearing
nothing, went on ; had he stopped nearer the track might have
seen train. Injury, head cut and body bruised, and two horses
killed.

(Verd. $1600,—Aff. at Gen. T.—Aff.)

CLARK v. HIGHTH AVE. R. R.Co. 36 N.Y., 135.

It is not negligent for a passenger to ride on the front steps of a crowded
street car with the consent of the conductor.
‘Whether it is negligent for a driver of a street car not to slow up whena
horse attached to a vehicle ahead is unmanageable is a question of fact.
Plff riding on front platform steps of deft’s car, with assent
of conductor collecting his fare, car crowded; knocked off in
collision with a horse and cart, horse unmanageable more or
less, car driver did not slow up as he might have done to avoid
the chance of collision. Injury, ankle injured.
(Verd. $450.—Aff. at Gen. T.—Aff.)

CURRAN v. WARREN CHEM. & Mre.Co. 36N. Y., 153.

It is negligent for a workman, working in a place where poisonous gas is
likely to accumulate, to prevent its proper ventilation.

The fact that a person meets his death on another’s premises does not cast
upon the latter the burden of satisfactorily explaining it. :

Piff’s intestate killed by inhaling poisonous vapours in boiler
on deft’s premises, he repairing it as servant of boiler makers ;
deft manufacturing chemical oils, ventilator attached to boiler
to allow escape of gases, safety of any one in the boiler required
ventilator to be kept open; deceased had directed it to be
closed ; gas having accumulated while he absent at dinner, on
re-entering the boiler to continue his work, he fell dead ; court
charged, deceased having met his death on deft’s premises,
burden on it to explain.
70 Cases CoNDENSED. [1867.

(Verd. $1,500.—Rev. at Gen. T. new tri, ord.—Aff. judg.
absol. for deft. )

*

WRIGHT v. SANDERS. 3 Keyes, 323.

A lot owner who digs post-holes for a fence along a sidewalk must guard
them.

PIff passerby, night, stepped into unguarded post-holes dug’
by deft along line of his property at edge of sidewalk. Injury,
knee-pan broken.

(Report $200.—Aff. at Gen. T.—Aff.)

Cott v. Lewiston R. R, Co. 36 N. Y., 214.

A railroad company which, in the construction of its road, necessarily di-
verts a stream of water from its natural channel, owes a duty to adjoin-
ing owners to restore the stream to, and preserve it in its former state of
usefulness as nearly as practicable without burdening them with the
expense of its preservation.

Ey v. BOARD OF SUPERVISORS OF Niac. Co.
36 N. Y., 297.

The neglect of an owner to notify the sheriff of an attempt to destroy his
property, does not prevent a recovery under the riot act of 1855, where
the owner is taken into custody at the time he learns of the attempt.

Keeping a bawdy house is not the proximate cause of its destruction by the
«virtuous citizens.”

PIff's assignor’s house and furniture destroyed by fire in con-
sequence of riot; she did not know of any threat to destroy
her property nor of the attempt until destruction was under way,
she was taken into custody by police, confined till it was over,
her houses were bawdy houses ; evidence that they were resort
for thieves and murderers, that policeman had been found mur-
dered near by, and great exasperation and excitement were
caused among the people of vicinity excluded. By Laws of
1855, chap. 428, providing for compensation to person whose
property is destroyed in consequence of riots, it is provided
that such person must notify the sheriff of facts brought to his -
1867. ] CasEs CONDENSED. WW

 

knowledge showing threat or attempt to destroy it; she gave
no such notice.
{Verd. for plffi—Aff. at Gen. T. —Aff.)

FERRIS v. UNION FERRY Co. 36N. Y., 312.

It is negligent for the managers of a boat to give the signal to passengers
to land, before the boat is fully secured to its place.

Itis not negligent for passengers on a boat to rely on the signal from its
managers that they may land.

Plff, passenger, leaving deft’s ferryboat, boat not fully secured
to bridge but left so as toswing and cause space to open and
close between boat and bridge; opened as plff stepped off, she
fell; deft’s servant had let down the guard chain as a signal
that it was proper to land; plff was attempting to do so with
others, some having preceded her. Injury, knee-cap injured.

(Verd. $400.—Aff. at Gen. T.—Aff.)

MAVERICK v. EIGHTH AVE. R. R. Co. 36 N. Y., 378.

A street car company must not stop its car for a passenger to get off. when
a vehicle is so close behind it and coming up at such a rate of speed as
to make acollision probable.

_ Evidence of a practice between street car and fire companies whereby a
street car is to be stopped or started on signal from the person in charge
of a fire company’s vehicle is admissible to show negligence in the car
conductor in disregarding a signal whereby a collision results.

PIff, passenger, car followed by hook and ladder truck run-
ning to fire, rapidly overtaking car ; on one side of street were
coming some vehicles, on other side car on other track ; plff
wanted to get off, overtaking truck about twenty feet behind;
deft’s conductor notwithstanding signal from person in charge
of the fire truck to go on, stopped car, told plff to come on, hur-
ried her with hands on her shoulder on to platform where she.
was hit by ladder on truck; this almost instantaneous, fire truck
could. not turn out on either side without hitting car in ques-
tion, or the other car on track ; evidence admitted of practice
and understanding between railroad and fire companies as to
movements of cars on signals from those in charge of fire trucks.
Injury, right hand crushed, finger amputated, wound in chest,

(Verd. $1,000.—Aff. at Gen. T.—-Aff )
72 Cases CoNDENSED. [1867.

 

PHILLIPS v. TERRY. 3 Abb. C. A. D., 607.
(S. C. 3 Keyes, 313.)

In an action to recover damages for overflowing a neighbor’s land, it is
competent to ask an expert how much a given field could yield per acre.

Also competent, to ask plaintiff how long the water was in going off before
the obstruction was built.

Also, to ask surveyor how much more land would be overflowed at a given

height of water.

ROSEBROOKS v. DINSMORE. 4 Abb. C. A. D., 118.

Demand of the delivery of express matter made by the censignee at a place
other than the agreed place of delivery is sufticient to support an action
forfailure to deliver it, where the carrier can not take it to the agreed
place, and on taking it to such other place, the agent at the agreed place
authorizes the consignee to demand it at the place it has reached.

Goods shipped from New York to Harper’s Ferry in 1862
reached Sandy Hook, on the opposite side of the river, where
demand was made under authorization of deft’s agent at Harper’s
Ferry, delivery refused because no way bill sent, afterwards
made to wrong person.

 

Drew v. SixtH AVE., R.R.Co. 1 Abb. 0. A. D., 556.
(S. C. 3 Keyes, 429.)

PIff passenger, boy of 8, injured while boarding deft’s car.

For details of accident, see Drew agst. same deft, 26 N. Y., 49;

suit by mother for loss of services. Injury, foot amputated.
(Verd. $5,000.—Aff. at Gen. T.—Aff.)

Nortarvp v. SYRACUSE B. & N.R. RB. RB. Co.
3 Abb. O. A. D., 386.

When a consignee of goods does not reside in the place of delivery, the
carrier’s liability ceases to be that of carrier and becomes that of ware-
houseman upon lapse of a reasonable time after their arrival, even
though no notice thereof is sent to the consignee.
1867. ] Cases CONDENSED. 73

 

ATLANTIC Dock Co, v, City OF B’KLYN. 3 Keyes, 444.

PIff recovered a verdict for damages done to its property by a
mob. Property consisted of a pier and a dredging machine.
The dredging machine was lying at the pier, and was in fact
within the limits of the city of New York. No question was
raised, however, on that at the trial, and the verdict included
both items of damage. Mention is only made of this case, be-
cause the same plaintiff sued the City of New York for the same
damages to the same dredging machine, and recovered against
it also. See 53 N. Y. 64. The explanation being that that
suit was prosecuted in the interest of deft here on assignment
of the claim.

Hunt v. Micu. 8. & N.Inp. R.R.Co. 37 N. Y., 162.

Plff’s books injured, wet on journey from Indiana to New Jer-
sey, over deft’s road and connecting roads; at Toledo, deft
delivered them to next carrier, and received receipt from it for
goods in good order ; no other evidence that they were so, or
where they were injured. Heid, deft liable.

 

Miuron v. Hup. Riv. SteAmMBoAT Co. 37 N, Y., 210.

The placing of a canal boat in an improper place in a tow does not relieve
its crew from care in her management.

Plff's canal boat being towed by deft’s steamer from Albany
to N. Y. under contract that it was to be placed in a certain
part of the tow between two other boats; deft failed to so
place it inthe tow, owing to which and to negligence of plff’s crew
in managing the boat, she lost some of her cargo, washed over-

board.
(Report for plffi—aAff.—Rev. new tri. ord.)

 

Rapway v. Brices. 37 N. Y., 256.

A lessee of a pier who agrees to keep it in a safe condition is liable for the
damages resulting to any one on the pier from its unsafe condition.

Plff’s horse, unmanageable on pier leased from city by deft ;
string pieces only two inches high, horse backed off, drowned ;
74 Cases CONDENSED. (1867.

 

by lease, deft had right to collect wharfage, not to demand
fees for use of surface of the pier, was to keep pier in safe con-
dition especially the string pieces ; ruled at trial no possession
shown in deft.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

TAYLOR v. ATLANTIC Mut, Ins. Co. 37 N. Y., 275.

The owner of a ship sunk ata wharf owes no duty to the lessee of the
‘wharf to remove her.

Plff lessee of wharf, at which a ship while moored sank
on taking fire, defts, insurance companies, insuring certain in-
terest in ship, to whom the owner of those interests had aban-
doned her as a total loss, also the owners of the uninsured in-
terests ; plff claimed right to recover wharfage for the ship as
lying at his pier, also dainages for loss of wharfage due to deft’s
negligence in failing to remove her.

(Verd. dir. for deft.—Aff. at Gen. T.—Aff.)

McIntyre v. N. Y.Cent, R. R. Co. 37 N. Y., 287.

Whether it is negligent in passenger to pass from one car to another on a
moving train in search of a seat under a brakeman’s instructions is a
question of fact.

Plff’s intestate, killed while passing from one car to another
on deft’s moving train in the night to get a seat under the in-
structions of its brakeman.

(Verd. $3, 500.—New trial ordered at Gen. Term for excessive

damages, unless plaintiff would remit $2,000, and that being
done, aff.—Aff. )

ALLEN v. SACKRIDER. 37N. Y., 341.

Plff’s grain injured by wetting while on deft’s sloop, not due
to want of care; sloop not engaged in the business of trans-
porting goods for the public. Hed, special carrier, not liable.

 
1867, } Cases CONDENSED. 75

 

CoGHLAN v. DINSMORE Pres. &c. 1 Abb. C. A. D., 375.
(S.C. 4 Tr. App., 386.)
An express company which undertakes to collect a note and protest it if
not paid is liable for damages in case it fails to do so.
The solvency of the maker is not a defence to an action to recover damages
for discharging an endorser by a failure to properly protest a note.

Cook v. N. Y. Cent. R. R. Co. 1 Abb. C. A. D., 432.
(S. C. 3 Keyes, 476.)

Where the evidence as to whether either party is negligent is contradictory,
a non-suit can not be sustained on the ground that the weight of evidence
is with the defendant.

Plff’s intestate killed at deft’s city crossing, deft’s train back-
ing; according to plffs evidence, no signals given, flag-man ab-
sent, no warning given, view of train cut off by houses and fence,
train going faster than allowed by city ordinance ; according to
deft’s evidence, signals were given, train not going faster than
allowed, and deceased warned.

(Non-suit.—Aff. at Gen. T. on ground that weight of evidence
was with deft, and hence court’s duty to non-suit or direct
verdict for deft.—Rev. new trial ord.)

In RE Sattus. 3 Abb. C. A. D., 243.

An executor who negligently fails to obtain an adequate price for property
sold by him may be charged on an accounting with the amount it was
actually worth at the time of the sale.

TRAVERv. EIGHTH AVENUER. R. Co. 4 Abb. C. A. D., 422.
(S. C. 3 Keyes, 497; 6 Abb. Pr. N. S., 46.)

A suit may be prosecuted by a married woman in her maiden name if no

objection to it is taken in the answer.

In an action by a minor to recover damages sustained through another’s
negligence, the erroneous admission of evidence of what the minor has
earned is cured by a charge that as the loss of earnings had been recov-
ered by the parent, they could not be by the child.
16 CasEs ConDENSED. [1867-68,

 

Plff, passenger, injured through negligence of deft. Injury
occurred when she was 18; her mother sued and recovered for
loss of service; after the injury plff married; suit brought in
maiden name; no objection to it in answer ; evidence of amount
of her earnings per week before injury admitted; court charged,
mother having recovered for the loss of earnings, plff could not,
Injury, head cut, spine injured.

(Verd. $2500.—Aff. at Gen. T.—Aff.)

BROOKFIELD v. REMSEN. 1 Abb. C. A. D., 210.
(S. C, 4 Tr. App., 278.)

The return by a sheriff of an execution a few days after its return day is no
defence to an action against him for damages for neglecting to return it
within the time.

BEACH v. RAR. & DEL. BAY R. BR. Co. 37 N. Y., 457.

A hirer of personal property, who has hired it for one purpose, and uses it
for another, during which it is lost, is liable to the owner for its value
independent of any question as to whether such loss occured through his
negligence.

PLATE v. N. Y. Cent. R. R. Co. 37 N. Y., 472.

In an action to recover damages for a flooding of land, a judgment recov-
ered in a former action for prior damages from a prior flooding due to
the same cause is res adjudicata as to the defendant's liability.

DAVENPORT v. RUCKMAN, & AN’R. 37 N. Y., 568.

It is negligent in a municipal corporation to allow the existence of an un-
guarded excavation in a sidewalk.

A landlord who lets premises in a dangerous condition, he agreeing to
repair them, is responsible to third persons for the damages resulting
from such condition.

Whether it is negligent for a person with defective eyesight to walk in the
streets is a question of fact. .
1868. ] Cases ConDENSED. 7

 

PIff whose sight was defective, fell into an unguarded excav-
ation in sidewalk of the municipal deft’s street, in front of
house owned by deft Ruckman, built on leased land; excava-
tion permanent, once guarded by railing, removed long previ-
ously ; R. had leased the premises to a tenant, and had agreed
to put the premises in repair, but had not. Injury, ribs broken
and various external injuries.

(Verd. $1,000, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
ord. on verd.—Aff. )

DRISCOLL v. NEWARK & ROSENDALE L. & C. Co.
37 N. Y., 637.

It is the duty of a person blasting on his own land to give warning to
passers-by.

Whether it is negligent for a person to pass by a quarry, where blasting is
carried on, by an accustomed route, is a question of fact.

PIff intestate passer-by on foot-path crossing land of his em-
ployers, and of deft’s, killed while going home to dinner by
blast from deft’s quarry; no warning given by defts.

(Verd. $800.—Aff. at Gen. T.—Aff.)

FULTON FIRE Ins. Co. v. BALDWIN. 37 N. Y., 648.

A cause of action for injury to personal property through negligence is
assignable.
Robinson v. Chamberlain, 34 N. Y., 389, followed.

Plff subrogated by assignment on payment of loss to rights of
insured owner of canal boat injured in state canal through deft’s
failure as public contractor to keep the canal in good navigable
condition. Demurrer to complt. no cause of action.

(Dem. sustained.—Aff. at Gen. T.—Rev. and judg. for plff’s -
with leave to defts to plead over.)

WOLFKIEL v. SixtH AVE. R. R. Co. 38 N. Y., 49.

When the ‘issue of negligence depends on inferences to be deduced from a
variety of circumstances in regard to which there is room for fair difter-
ence of opinion among intelligent men, itis a matter of right to have a

: submitted to a jury.
73 Cases CoNnDENSED. (1868.

 

When a passenger is boarding a street car, the person who controls its
starting should look to see if there is any one else to get on before it
starts.

Plff while boarding deft’s street car in front where were seats
for passengers, was injured by the starting up of the car; the
deft’s evidence at best made it a question of doubt whether the
driver had been guilty of negligence in so starting; the car had
stopped on a hail; a companion of plaintiff had got on just
ahead of him, driver claimed he did not know there were two
to get on. Injury, foot crushed.

(Verd. $1,808.50,—Aff. at Gen. T.—Aff.)

ScHERMERHORN v. Hup. R. R. R.Co. 38 N, Y., 103.

An act requiring a railroad to maintain a fence along its tracks, and by its
terms applicable to existing railroads where not inconsistent with their
charters, does not impose a liability on a railroad company to maintain
a fence at places where its road is constructed ina river, if a clause reliev-
ing it to that extent is in its charter.

Piff’s cattle killed by deft’s train, swam or forded from an
island in Hudson River across the intermediate water and got
on to track ; under deft’s charter, Laws of 1846, Chap. 216, § 24,
it was relieved from obligation to maintain ferice where its road
is constructed in the river; general railroad act of 1848, Chap.
140, § 42, required railroad companies to maintain fences along-
side of their tracks applied to existing roads where not inconsistent
with charter.

(Judg. in Justice Court for plff.—Aff. in Co. Court.—Rev. by
Sup. Court.— Aff.)

 

NIcHOLs v. SIXTH AvE.R.R.Co. 38 N. Y., 131.

It is not negligence in a passenger on a street car, after notifying the per
son in its charge to stop, to get on the step, so as to get off when the car
comes to a stop.

It is negligence in a driver, after slowing down a street car, to start it up,
instead of stopping it, while a passenger is carrying out his notified in
tention of getting off.

PIff, passenger, thrown off. deft’s street car, had notified driver
to stop, no conductor, driver had, slowed down from trot. to
1868. } Cases CONDENSED. 79

 

walk, plff standing on step, waiting to alight, thrown off by
sudden start of car, horse going on trot instead of stopping.
Injury, flesh torn from hip and back causing loss of control of
bowels.

(Verd, $2500,—Aff, at Gen, T.—Aff.)

STARBIRD v. BARRONS. 38 N. Y., 230.

Dispute between carrier and shipper. Carrier sued for freight
and damages to his boat for delay occasioned by deft; latter
counter-claimed for damages to cargo ; contest over facts.

STONE v. WESTERN TRANSP. Co. 38 N. Y., 240.
A person who boards another’s horses under a contract with their owneris

not a fellow-servant of another who is employed by the owner to take
care of them.
The fact that a person taking care of horses for their owner is boarded
under contract with their owner by a person who under the same con-
- tract boards the horses does not make him the servant of the latter per-

son.
To puta lantern on a beam ina haymow while using a pitchfork near by

is negligent.

Plff's hay wagon and other property destroyed by fire ina
barn in his possession due to the negligence of a person hired
by deft to take charge of its horses for the winter; plff having
agreed with deft to stable them for the winter and furnish neces-
sary food, straw, water, lamps, oil, and to board a man in case
defts required a man to take care of the horses ; said man was
hired by deft to take care of the horses, caused the fire by put-
ting lantern on beam in hayloft instead of hanging it on peg
provided by plff for the purpose, knocked it off with pitch-fork.

(Verd. for plffi—Aff. at Gen. T.—Aff.)

WEBSTER v. Hupson Riv. R. R. Co. 38 N. Y., 260.

The rule as to imputed negligence does not apply toa common carrier’s
passengers. ‘
80 Casrs CONDENSED. . [1868,

 

Plff passenger in a railroad train, crossing deft’s tracks, in-
jured in a negligent collision of deft’s train with train he was
in; court declined to charge that if the negligence of the per-
sons in charge of train plaintiff was in contributed to his injury,
he could not recover. Injury, to spine, &c,

(Verd, $1800.—Aff. at Gen, T.—Aff.)

Tracy v. Troy & Boston R. BR. Co. 38 N. Y., 433.

A railroad company operating another road is bound to see that fences and
guards are erected along it.

Plff's cow killed by deft’s locomotive on track belonging to
the Troy Union R. R. Co.,no fence or cattle guards; Troy Union
R. R. Co. a corporation organized under special act, for use of
railroad companies running trains through Troy, owned no
rolling stock, paid no dividends, supported by assessments on
companies using its tracks, its passenger house and other pro-
perty belonging to them ; deft forever entitled to use the road,
the track at place of collision continuation of deft’s line of road.

(Judg. for plff. in Justice’s court.—Nonsuit in County Court.
—Aff. at Gen. T.—Rev. judg. of Justice aff.)

GONZALES v. N. Y.& Hartem R. R. Co. 38 N. Y., 440.

It is negligent for a passenger, on alighting from a train on the side of the
opposite track to omit to look for a.train he knows is due about that time
on that track.

Plff’s intestate, passenger on deft’s train, got off before it had
come to a stop at his station, on side of the other track, killed
ly being caught under the wheels of one of its cars, while try-
ing to avoid express train, which he knew was due at that sta-

ion within one minute of time his own train due; court re-

‘ised to charge that it was his duty to look in the direction
* .m which the express was due.

(Verd, $4000,—Aff. at Gen, T.—Rev. new tri. ord.)

O'Mara v. Hupson Riv. R. R. Co. 38 N. Y., 445.

Absence of statutory signals at a crossing is evidence of negligence.

lt is negligent to allow an engine to be run at street crossings in charge of

a fireman only. \
1868. ] Cases CONDENSED. 81

It is a question of fact whether it is negligent for a parent to allow a boy of
eleven years of age to cross a railroad track alone.

Proof of the value of services of a boy as old as eleven years is not
necessary in a death case.

Plffs intestate, boy of 11, sent on errand by parent, having
waited at deft’s crossing for train to pass, was struck by deft’s
engine, run by firemen only, ringing no bell, blowing no whis-
tle, going in an opposite direction on next track; only question
on motion for nonsuit.

(Verd. $1500.— Aff. at Gen T.—Aff.)

MANGAM v. BROOKLYN R. R. Co. 38 N. Y., 455.

The omission of a parent of an infant to prevent its escape from immediate
supervision is not necessarily negligent.

Piff, boy of 4, injured through deft’s negligence ; only ques-
tion was as to parent’s negligence; the child had been at rear
of home in sister's sight, only way in which he could have got-
ten into the street was through front window four feet from the
floor out of which it did not appear he had ever before attempted
to get. ;

(Nonsuit.—Rev. new tri. ord. at Gen. T.—Aff. judg. absol.)

GROSVENOR v. N, Y. Cent. R. R. Co. 39 N. Y., 34.

Pliff left a cutter on platform of deft’s depot for shipment pur-
suant to agreement, did not notify freight agent it was there,
train passing, caught it, broke it. Held, deft not liable, relation
of carrier not begun.

Brunet v. Hupson Riv. R. BR. Co.. 39 N. Y., 61.

1st Appeal, 24 How, Pr. 97.
Qd 35 N. Y., 9.

This was an appeal after fourth trial, facts same as those in
35 N. Y., 9. (See page 63 of 39 N. Y.)
(Verd. $5,000.—Aff. at Gen. T.—Aff.)
82 Cases CONDENSED. (1868.

 

Note.—The following statement may be interesting.

1855, Deceased killed.

1859, Ist trial, nonsuit.

1860, New trial granted by Gen. T.

1861, 2d trial, Verd, $2,500.

1862, New trial granted by Court of Appeals. 24 How Pr., 97.
1865, 3d trial, nonsuit,

1866, New trial granted by Court of App., 35 N. Y., 9.

1867, 4th trial Verd. $5,000,

1868, Finally aff. by Court of App. 39N. Y., 61.

EDGERTON v, N.Y. & HarteM R. Co. 39-N. Y., 227.

A general averment in a complaint that an injury was sustained through
defendant's negligence is sufficient.

Where a vehicle of a common carrier, though not designed to carry passen-
gers, is used for that purpose, it is not negligence for a passenger to ride
in it.

Plff passenger, injured while riding in deft’s caboose at-
tached to freight train, caboose principally for deft’s em-
ployes, but passengers carried in it for hire also ; caboose ran
off track; complaint contained a general averment that plff
was injured through deft’s negligence, in addition to an allega-
tion specifying the particular act of negligence, which latternot
proved. Injury, contusions of head and knee.

(Verd. $4,500.—Aff. at Gen. T.—Aff.)

>

“Wiucox v. Romz, WATER. & Oc. R. BR. Co. 39 N. Y., 358.

A person walking along a railroad track at a street crossing has no right to
assume from the absence of the signals required at crossings that a train

is not coming up behind him.

Plff's intestate, walking in or alongside of deft’s track, with-
in the bounds of a city street, at a crossing struck by locomo-
tive going in same direction, 12 to 15 miles an hour, no statu-
tory signals given on approaching the crossing ; had deceased
looked: behind him, would have seen engine; no obstruction to
vision for fifty rods.

(Verd. $1,500. —Aff. at Gen. T.—Rev. new tri. ord.)
1868. ] Cases ConDENSED. 83

‘Mattv. Lorp. 39 N. Y., 381,

A master is not liable for a falsc arrest of a person instigated by his ser-
vant without his authority express or implied.

Dickon v. McCoy. 39N. Y., 400.

The factthat a horse kicked up his heels from a playful disposition only,
and not from viciousness, is no defense to an action for damages for neg-
ligence in allowing him to run at large.

PIff, child of ten, kicked by deft’s horse, turned looseina city
street; deft knew horse to be of playful disposition prone to
kick up his heels when unattended. Injury to cheek-bone.

(Verd. $500.—Aff. at Gen. T.—Aff.)

WARNER ¥, ERIE Ratbway Co. 39 N. Y., 468.

A master, who has erected a structure properly, employed skillful agents to
supervise itfrom. time to time, applying such tests as custom and experi-
ence have prescribed, and has no notice of any defects therein, is not re-
sponsible to his servant for injuries received from its fall on account of
gradual decay,

Or,

A master who,erects a structure properly, and has it duly inspected, and
has no notice of any defects has exercised all the care towards his ser-
vants that the law exacts,

Or,

Where a railroad bridge, properly erected, and duly inspected falls from
gradual decay, in order to hold the master responsible for damages re-
sulting to aservant from its fall, it must appear that the master had
knowledge or notice that its decay was such as to render it unsafe.

PIff's intestate, baggage man on deft’s train, killed by
bridge falling as train passed over; bridge fell from decay;
properly constructed, duly inspected, nothing discovered ;
court left it to jury to say whether deft’s board of directors were
negligent in not discovering its decayed condition.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

BaRMON v. LITHAUER, 1 Abb. ©. A. D., 99.
(S. C. 4 Keyes, 317.)

The neglect of an endorser of a note, who has paid the amount due on it toits
holdur on the promise to surrender it, to give notice of a suit upon it by
athird erson into whose hands it has passed, precludes him from recov-
ering from the former holder the amount for which he may be cast in
j-tenent in such suit.
84 Caszs CONDENSED. (1868.

 

Finto v. Jones. 2 Abb., OC. A. D., 12).
(S. C. 4 Keyes, 328.)

Expert evidence that other explosions of fireworks were caused by sponta-
neous combustion is not relevant upon the question whether an explosion
in suit was caused by spontaneous combustion.

Expert evidence that a certain kind of fireworks called by the same name as
those of defendant’s are liable tospontaneouscombustion is not relevant
to prove that those of defendant’s exploded from that cause, in the ab.
sence of evidence that both were composed of the same material.

A letter to a city official calling attention to the dangerous contents of a
man’s store is not admissible in an action to recover damages forinjuries
caused by anexplosion in such store.

Plff’s testator burned by fire caused by explosion of fireworks
in deft’s store, died; was tenant of upper part of building ;
deft had “colored signal lights”; to sustain theory of sponta-
neous combustion of them and that keeping them in cities was
dangerous, it was proved that deft had stated to his insurers
that the fire was caused by their spontaneous combustion ; also
evidence admitted of twofires in same city 12 years before, and
opinion by expert that their cause was spontaneous combus-
tion, alsoas to another fire 10 years before from same cause,
such prior fires not in stores of deft ; also evidence that 2 years
after fire in question, same colored signal lights bought at an-
other place were composed of materials liable to spontaneous
combustion {did not appear that they were composed of same
materials as deft’s); also that City Fire Marshal: had a few
months prior to firc in question received an anonymous letter, di-
recting his attention to deft’s store as containing dangerous
fireworks subjecting neighborhood to peril in case of explosion;
city ordinance forbade keeping the fireworks in question ; there
was no evidence of negligence in handling the fireworks.

(Verd. $5,000.—Rev. at Gen. T. new tri. ord. —Aff. judg.
absol. for deft.)

FRencu v. Burr. & ERIE R.R.Co, 2 Abb. ©. A. D., 196.
(S. C. 4 Keyes, 108.)
Where goods are carried at owner's risk, evidence that they were injured

in a railroad accident does not warrant an inference that the injury was
due to the carrier's negligence.
1868. } CasEs CONDENSED. 85

 

Murray v. N. Y. Cent. R. R, 3 Abb. ©. A. D,, 339.
(S. C. 4 Keyes, 274.)

A railroad company is not made by the statute as to fencing an insurer of
the proper condition of fences along its tracks.

The fact that laborers in the employ of a railroad company passed a place
in a fence within a fewdays after it had gotten out of repair willnot justify

a finding of notice to the company of the defect.

Plff's horse killed by deft’s train, had escaped from adjacent
pasture through gate, erected by deft at a farm crossing, gate
out of repair, loosed from hinges for four days, fixed up by
plff’s tenant as well as he could, no notice to deft of condition
of gate, other than that which might be implied by reason of
some of its laborers having passed the gate during the four
days. (Laws of 1854, chap. 282, Laws of 1850, chap. 140.)

(Verd. for plffiaff. at Gen. T.—Rev. new tri. ord.)

TALLMAN v. Syr., B. & N. Y.R.R,Co. 4 Abb. C.A.D., 351.
(S. C. 4 Keyes, 128.)

The meaning of the railroad act as to fencing, requiring railroad companies
to maintain fences of the height and strength of a division fence required
by law, is that they shall maintain them of sufficient height and strength
to prevent cattle getting on their tracks.

Plff’s cattle run over by train, strayed on track through de-
fective fence; the statute required the company to maintain
fences ‘‘of the height and strength of a division fence required
by law”; there is no statute prescribing the height and strength
of division fences. a of

(Verd. for plff—Aff. at Gen. T.—Aff.)

WENDELL v. Mayor & C.or Troy. 4 Abb. C. A. D., 563.
(S. C. 4 Keyes, 261.)

When a property owner constructs a drain through a street to connect with
a sewer, under permission from the municipality, the latter must see
that it is properly constructed.

PIff fell into drain excavated by property owner in deft’s
street to connect with sewer under resolution of common coun-
cil, which provided that it should be done under direction of
deft’s commissioner; drain had been filled up, earth rounded
86 Cases CONDENSED. {1869.

 

over, and it appeared in proper condition, in reality not done
properly; when plff drove over it, it caved in; no one on
deft’s part saw that it was properly constructed ; court left it to
jury to say whether drain built by consent of deft, charged that
the resolution was evidence of its consent, and that it was duty
of common council to send competent officer to see drain
properly constructed. Injury, to spine and back.
(Verd. $5,000.—Aff. at Gen. T.—Aff.)

BEISEGEL v. N. Y. CenTRAL R. R. Co. 40N. Y., 9.
1st Appeal, 34 N. Y., 622.

The omission of a railroad company to station a flagman at a crossing is.
not in itself negligence.

An omission to station a flagman at a crossing, where trains are run at a
greater rate of speed than at other crossings, may be evidence of negli-
gence in running trains at that crossing at such greater rate of speed,

Proof of a man’s earnings near the time of an injury is admissible as an
element of damage.

Questions on new trial; (1) PIff allowed to show amount of
his earnings at his trade. (2) Deft having omitted to keep a
flagman at the crossing, court charged to the effect that the
jury could find deft guilty of negligence solely on the ground
of such omission. Injury, one leg amputated, other leg broken.

(Verd. $10,000, subj. to opin. of Gen. T.—Judg. ord. on
verd. at Gen. T.—Rev. new tri. ord.)

Grippen v.N. Y. Cenrrau RB. R. Co. 40 N. Y., 34.

The failure of a railroad company to ring a bell on a backing train at any
other place than its locomotive is not negligence.

An injury must be caused not merely essentially but solely by the neglig-
ence of defendant.

If a person by looking can avoid an injury, his omission to look is
negligence.

Plf's intestate killed while crossing deft’s tracks at Troy, in
sleigh, stormy night, trotting ; deft’s engine and six cars back-'
ing, foremost car hit end of sleigh; disputed as to whether bell
was rung ; court charged, '‘the object of the requirement of the

‘ringing of the bell is to give notice to travellers and perhaps
others, of the approach of the train ; the bell should be rung un-
1869 ] Casrs ConDENSED. 87

 

der such circumstances, as that it may be heard and give the
requisite notice ; otherwise the object of the requirement is not
complied with ;” refused to charge that plff could not recover
unless the death of the intestate was solely caused by the
wrongful act, neglect or default of deft, changing the word
‘‘solely” to “essentially” and then charging the proposition ;
also refused, ‘‘if the deceased could have seen the approaching
train by looking in the direction of it, before he reached the
crossing and in time to have avoided the collision, and omitted
to do so, such omission was negligence.”
{Verd. $4,000,—Aff. at Gen. T.—Rev. new tri. ord.)

Huueert v. N. Y. CENTRAL R. BR. Co. 40 N. Y., 145.

It is the duty of a railroad company to keep that portion of its premises,
which is used by passengers with its consent for boarding or alighting
from trains, in a safe condition.

Whether a passenger is guilty of contributory negligence in boarding a
train under circumstances which but for the implied assent of the com-
pany would render him negligent, is, where such assent exists, a.
question of fact.

PIff’s intestate, original plf, passenger, carried past Rochester
while asleep at night under promise of conductor; on
awaking conductor refused to stop, said at Newark saul
take train and get back.sooner than by walking ; his train stop-
ped for water west of station; the other train, an express, was
taking water east of station; trains did not always stop at
station after taking water, passengers often boarded them at
tank; ticket office not open, no light except from the trains,
nobody around station or tracks; he walked from one train to
the other, fell into excavation, seriously injured. Injury, wrist
sprained, cuts, bruises.

(Verd. $1500.—Aff. at Gen. T.—Aff.)

Nore. —The statement in the report that the verdict was $5,000 is a
misprint.

 

Burrert v. Troy & Boston R. R. Co. 40N. Y., 168.

Ifa railrcad company undertakes to transport passengers by conveyances
other than its trains, it owes them the same duty of care in such trans-

portation.
88 Cases CONDENSED. [1869,

 

It is immaterial to the question as to the duty of care to a passenger whether
a contract to transport a passenger is wira vires.

A person who takes a place in a common carrier’s conveyance intending to
pay fare when required to do so isa passenger, and as such entitled to
protection.

PIff injured in negligent upset of stage hired by deft to carry
passengers between its station and a village; plff intending to
take deft’s tain boarded the stage at the village having no
ticket, but expecting to buy one at the station; driver had tickets
to sell, passengers generally bought them at the station. Injury,
shoulder dislocated.

(Verd. $450.—Aff. at Gen. T.—Aff,)

Mentz v.SEconD AVE. R. R. Co. 3 Abb. C. A. D., 274.

The failure to look for an approaching car is not contributory negligence,
when a person has ample time to cross in front of it, but for an unexpect-
able accident.

In crossing a track a person is not bound to anticipate his stumbling
upon it.

It is negligent for a driver of a carin acity street to turn his back to the
track ahead.

If a person crossing a track ahead of a car falls on the track, the driver
must use the greatest care to avoid injuring him.

PIff, boy of 8, run over, had started to cross street, stumbled
on deft’s track; fell, knee hurt; had difficulty in rising; car came
along at sapid rate, thirty to forty feet off when he fell, driver
talking with back to horses, did not stop; plff trampled by
horses before he could get up; had not looked before starting
to cross street; court refused to charge, that the fact that
pliff did not before attempting to cross the track look up
or down the street to see if car approaching was negligence ;
also that the fact of plff having fallen on the track does not
affect the question of deft’s negligence, unless accompanied by
evidence that the driver actually saw him on the track in time
to stop the car; also that the jury must be satisfied that if the
driver had seen him the car could have been stopped by the
driver in the exercise of ordinary care in time to prevent the
collision. Injury, arm amputated.

(Verd. $4,500.—Aff. at Gen. T.—Aff.)
1869. } Cases CONDENSED. 89

ERICKSON v. SmMitH, 2 Abb. C. A. D., 64.

A certificate of inspection of a steamboat is evidence only of the fact that
she has been inspected according to law, and is not evidence that she
was at the time in a fit state to carry passengers.

Anexplosion of a steamboat is the proximate cause of the death of a
passenger who is drowned, either by falling overboard while with due care
seeking a place of safety, or by rushing overboard unable to bear the
pains of wounds and in belief that they are fatal.

PIff’s intestate, passenger on deft’s boat, boiler exploded, she
terrified, ran from her companions, dead body found in the
river; certificate of inspection of boat admitted as evidence
only of fact of inspection and not of other facts stated in it; in-
spector who inspected boiler not called; court charged, if de-
ceased scalded so that she apprehended she was fatally injured,
and unable to bear the pain rushed overboard impelled by
feeling that pain would be lessened, or if under ieasonable
apprehension of danger, in attempting to reach place of safety
she without her fault fell overboard, might find death caused
by explosion.

(Verd. $3,000.—Aff. at Gen. T.—Aff. )

Bowman v. TALLMAN. 40 How. Pr., 1.

Where a question of law has not been authoritatively decided in the court
oflast resort, andis not free from difficulty, it is not negligence in an
attorney at law to give professional advice at variance with the opinion
of a lower court.

Norris v. KoHuER. 41 N. Y., 42.

It is negligent to leave horses unfastened in a public street.

When personal property in use by one person is proved to have been owned
by another, the inference is warranted that such use was on behalf of the
the latter.

Or,

Itis a warrantable presumption that personal property is being used on
behalf of its owner.

Plff's intestate killed in city street by runaway team, left un-
fastened, owned by deft, in charge of two persons engaged in
peddling pies ; did not appear who carried on pie business ; on
wagon’s side was painted “ Mrs. Hopkins’ pie bakery,” on its
90 Cases CONDENSED. [1869,

 

rear was deft’s name, no connection shown between Mrs. Hop-
kins and deft, nor that deft was in the pie business.
(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

 

GATES v. PRESTON. 41 N. Y., 113.

An action against a physician to recover damages for malpractice is barred
by a judgment in favor of the physician against the plaintiff on a com-
plaint to recover for the value of the servicés which constituted the alleged
malpractice, even though recovered in a justice’s court on default after
the action for malpractice had been begun.

GRAY v. CITY oF BRooKLYN. 2 Abb. C.A.D., 267.
(S. C. 10 Abb. Pr. N.S., 186.)

An act of the Legislature relieving a city from liability in damages for
any nonfeasance or misfeasance of its officers is constitutional.

Under the charter of the City of Brooklyn as amended in 1862 an action to
recover damages resulting from the negligence of the city’s officials in con-
structing a sewer will not lie.

Plff’s premises injured by overflow due to negligent construc-
tion of deft’s sewer; by an amendment of deft’s charter it had been
provided that it should not be liable in damages for any nonfea-
sance or misfeasance on part of its common council, or any
officers of the city or appointees ofits common council, of any
duty imposed upon them by “the act”; the amending act im-
posed no duties, but the Act amended did, and it was clear that
the object of the amendment was to exonerate the city from
liability on account of.omissions or misconduct of its officers, a
liability therefor being imposed on the officers themselves,

(Nonsuit.—Aff. at Gen. T.—Aff.)

HAVENS v. Erte Rattway Co. 41 N.Y.296.

Omission to give the statutory signals ona railroad train approaching a
crossing does not excuse a person about to cross from the duty of look-
ing and listening so as to ascertain whether a train is coming.

Or,

A person on approaching a railroad crossing should look and listen for
trains.

Or,
1869-70. ] Cases CONDENSED. 91

 

The failure of a railroad company to sound the statutory signals on its train
when approaching a crossing, does not excuse the failure of the traveller
about to cross, from looking and listening for trains.

Piff's intestate, killed at deft’s crossing, no bell rung nor
whistle blown ; court charged that the deceased was not bound
to stop and look up and down the track unless the signals were
given, and if he heard no signals, he would have the right to
assume that there was no train within eighty rods of the cross-
ing ; refused to charge that if deceased could when within ten
rods of the crossing, have seen the train nearly a mile off and
omitted to look, could not recover.

(Verd. $1,300, excep, at Gen. T.—Excep. overrul, atGen. T.
judg. ord. for plff_—Rev. new tri. ord.)

BAXTER v. TROY AND Boston R. R. Co. 41 N. Y., 502.

Omission to give the statutory signals on a railroad train when approaching
a crossing does not excuse a person from exercising ordinary prudence
in approaching the crossing.

Plff injured at deft’s crossing, did not hear train, did not look
for it, no bell rung nor whistle blown; court in effect refused
_ to charge that an omission of deft to give the statutory signals

did not relieve plaintiff from the duty of exercising ordinary
prudence on approaching the crossing. Injury, back and face
and head bruised.

(Verd. $600.—Aff. at Gen. T.—Rev. new tri. ord.)

NICHOLSON ¥. ERIE Rattway Co. 41 N. Y., 525.

The tacit permission of a railroad company to the public to cross its tracks
at other places than the highways does not impose any duty on it of
protecting persons while crossing.

The need of protecting one’s face against a storm is no excuse for crossing
a railroad track without looking up and down it.

PIff’s intestate killed while crossing a branch track of deft on
premises of Iron Co.; not an employee of either co., persons
were in habit of crossing it without objection from either
co.; unusually high wind started some cars, brakes left
unset, custom usually to set them; deceased might have seen
the cars had he looked, but was holding his hat down to shield
92 Cases CoNDENSED. [1870.

 

his face; court charged, it was deft’s duty to set the brakes or
otherwise fasten the cars when left in the Iron Co’s yard.
(Verd, $1800. —Aff. at Gen. T.—Rev. new tri. ord.)

LEONARD v, N. Y, ALB. & Burr. B, M. Tet. Co.
41 N. Y., 544.

The failure of an injured person to take a step, which if taken would have
reduced the damages, but which he in good faith supposed it was too late
to take, is not negligence, nor can it be taken as mitigation of damages.

Mistake in telegram. Question mainly as to measure of
damages.

GUILLAUME v. HAMBURGH & AM. PACKET Co.
42 N.Y., 212.

Deft’s mate delivered plff’s goods to a person not empowered
by plff to receive them , bill of lading contained clause exempt-
ing carrier from all loss or damages from act or neglect of pilot,
master or marines. Ae/d, deft liable.

Hyatt v. Taytor. 42 N, Y., 258.

The immunity which the Innkeeper’s Act gives to an innkeeper who posis
in his guest’s room a notice that the latter’s money, jewels and ornaments
may be deposited in a safe in the office, extends to all that the guest
brings, whether for personal convenience or traveling expenses.

GONZALES v. N. Y. & H. R. R.Co. 39 How. Pr., 407.
(Ist Appeal, 38 N.-Y., 440.)

New facts, deceased’s eye sight impaired, brakeman before
deceased left car, called out ‘‘allout for Mt. Vernon”’ also in
“many other particulars”, p. 412.

As the opinion on this appeal is nothing but a labored
attempt to avoid the force of the reversal in 38 N. Y., 440, itis not
deemed of any use to formulate a rule, especially in view of
the disagreement of learned judges as pointed out in the note
at p. 426.

(Non-suit.—Aff. at Gen. T.—Rev. new tri. ord.)
1870. ] Casrs CONDENSED. 93

 

DEXTER». Syk., Binge. &N. Y.R. R. Co. 42 N. Y., 326.

Plff's trunk lost, in it was cloth belonging to another person;
carrier held liable for value of plffs property, but not for the
cloth.

Loop v. LITCHFIELD. 42 .N. Y., 351.

The rule as to sales of deadly poisons does not apply to the sales of de-
fective machines not necessarily dangerous.

Or,

4. manufacturer of a defective machine not necessarily dangerous, sold by
him to a purchaser with notice of the defect, is not liable for damages
resulting from its use by a third person.

Piff’s intestate killed by bursting of a balance wheel used
with circular saw, borrowed by him from a neighbor; defts
manufacturers of wheel, sold it to the neighbor calling his atten-
tion to a visible defect, defect painted over and wheel in use
four years.

(Verd. $800.—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
for deft. }

NotEe.—This is an illustration of the wisdom of not going beyond the facts
and generalizing. Suppose a manufacturer of a steam boiler, knowing
that there is a defect in it which renders it likely to explode when used,
sells it for use in a populous place. Ought he to escape a liability for
damages resulting to third persons from an exfectable explosion? This
case does not answer that question. Does Losee v. Clute, 51 N. Y., 494,
do so convincingly ?

BULGER v. ALBANY Ry. Co. 42 N. Y., 459.

A driver of a horse car is not obliged to keep a constant watch on each side
of the car so as to see that no one is injured by a lateral collision.

Plff’s intestate, girl of 2, killed by deft’s horse car, permitted
by mother to go into street from her store, wandered off; a per-
son saw her leave the curbstone, run towards the track, when
the car passed between him and the child; he said if driver had
seen the child he could have stopped and he thought he might
have seen it when it left the sidewalk ; driver testified he was
on lookout, did not see the child ; a boy testified that the horses
and fore part of the car had passed without any collision ;
street narrow.

(Nonsuit.—Aff. at Gen. T.—Aff.)
94 Cases CONDENSED. [1870.

 

Harty v. Cent. R. R. Co.0oF N. J. 42 N. Y., 468.

The statutory duty of railroad companies to give warnings of .their trains
at crossings is owing to travellers on the highway, not to persons walking
on their tracks.

A railroad company is under no duty to give warning of an approaching
train to a person stepping on its track so unexpectedly as not to give
time for the warning.

It is negligent to step on a railroad track without looking for trains.

Piff's intestate killed by deft’s train; was walking along one
track at a place where deft had impliedly licensed certain
workman in neighboring slaughter house to go, when to avoid
an oncoming train, he stepped on the other track and just as he
did so was struck by a train coming from the other direction,
must have seen it ifhe had looked; New Jersey railroad act
requires whistles to be blown and bells rung at least three hun-
dred yards from crossings; deceased struck near a crossing,
signals not given.

(Verd. $2,750.—Rev. at Gen. T. new tri. ord.— Aff. judg. absol.
for deft.)

‘SHELDON v. SHERMAN. 42 N. Y., 484,

A person whose property is, without his fault, borne upon the lands of
another by inevitable accident, suchas a flood, may elect either to abandon
it, or to reclaim it.

If he abandon it, he is not liable to his neighbor for the injury which the
latter may sustain.

Ifhe reclaims it, he must pay his neighbor for such damages.

AUSTIN v. NEW JERSEY STEAMBOAT Co. 43 N, Y., 75.

‘Failure of a boat aground to make answering signals to another boat about
to pass is not contributory negligence.

Where a collision on water is due to a mistake of the channel by the col-
liding boat, a prior similar mistake by the other boat through which she
grounded, is not negligence which contributes to the collision.

Supposition of a change of a channel is not sufficient to excuse an at-
tempt to pass on one side when the channel really requires passage to
be made on the other.

Plff’s boat in a tow, got aground in Hudson river, steered too
far to the east in the mistaken idea that the channel had shifted

during the winter, navigating season just opened ; deft’s steam-
boat under same mistake as to shifting of channel, signalled
1870. ] Cases CONDENSED. 95

 

intention to pass to the east, tow steamer gave no answering

signals ; while attempting to so pass bow of deft’s boat struck a

sand hummock, sheered so as tocollide with plff’s boat; deft’s-

boat knew plff’s boat aground, should have gone to the west.
(Report for plff.i—Aff. at Gen. T.—Aff.)

STEINWEG v. THE ERIE Ratuway Co, 43 N. Y., 123.

A carrier of goods owes no duty to a shipper, who has taken the risk of fire,
to adopt all contrivances for safety against fire known to science before
they have become generally known and in use.

Plff’s goods, while being carried by deft, under bill of lading
releasing it from liability for damage by fire, destroyed by fire
kindled by sparks from locomotive; plff gave evidence as to
appliances, by means of which locomotives consume theirown
sparks, no evidence as to their being in general use; court
charged that if locomotive can be constructed so as to prevent
emission of sparks, and deft neglected so to construct its loco-
motive, it was liable because there is an obligation on the
carrier to use every precaution and adopt all contrivances known
to science to protect the goods carried by him.

(Verd. for plff.—Aff. at Gen. T.—Rev. new tri. ord.)

STARBIRD v. BARRONS. 43N. Y., 200.
(Ist Appeal. 38N. Y., 230.)

New trial granted on ground of exclusion of evidence to sus-
tain counterclaim.

Biossom v. Dopp. 43 N. Y., 264.

Plff’s baggage lost by baggage express company, receipt for
it contained an exemption clause, given when train running
fast at night, light in car nearly out, plff did not read it. Held,
deft liable, clause not part of contract.
96 Cases CONDENSED, [1870-71.

BEISEGEL v. N.Y. Cent. R. R. Co. 14 Abb. N.S., 29.

{ist Appeal. 34N. Y., 622.)
(Qnd « 40 “ 9)
Where view ofa track is obscured at a crossing by standing cars, anda per-
son going over, as soon as he clears them, looks up and down, there being
a number of tracks, it is a question of fact whether he was negligent.
Violation of a city ordinance is evidence of negligence,

 

On the last trial, it appeared there were 5 tracks, 5 ft. between
each track, view of one of them obstructed by standing cars;
plff on passing the cars, and going over the space, looked up
and down; while looking in one direction, struck by engine
going in other, faster than city ordinance allowed; court
charged if engine running faster than ordinance permitted, it
was some evidence of negligence.

(Verd. $12,000.—Aff. at Gen. T.—Aff.)

Unton Nav. Bu. v. SixtH Nat. Bk. 43 N. Y., 452,

In an action to recover money paid under mutual mistake of fact, it is no
defence that the mistake was due to negligence of the plaintiff.

Eckert v Lone Istanp R. RB. Co. 43 N.Y., 502.

It is not negligent fora person to put himself in danger when his object is
to save human life.

Plff's intestate run over by deft’s locomotive, running at rapid
rate in thickly populated neighborhood without signals, engine
backing ; deceasedrushed on track to save life of a child on the
track, had time to throw the child clear, not able to get clear
himself.

(Verd. $3,500.—Aff. at Gen. T.-—Aff.)

VAN SCHAICK v. Hupson Riv. R. R.Co. 43 N. Y., 527.

A passenger who without inducement from a railroad company stands on the
track behind a car, does so at his own risk.

Plffintestate, run over by deft’s car on side track ; had gotten
off from caboose of freight train at round house, with other pas-
1871. ] Cases CONDENSED. 97

 

sengers according to custom, walked up main track towards
the station in their company, stepped behind detached freight
cars on side track (from personal necessity), while standing
there, cars pushed by a train backing against them.

(Verd. $5,coo.—Aff. at Gen. T.—Rev. new tri. ord.)

RAMALEY v. LELAND. 43 N. Y., 539.

A guest's watch, worn and used by him in the ordinary manner, is neither a
jewel nor an ornament within the meaning of the innkeeper’s act ex-
empting the innkeeper from responsibility for such articles when he posts
the notice as provided for by the act.

FRASER v. FREEMAN. 43 N. Y., 566.

Where a servant, while aiding lis master to resist an entry of a person on
the master’s land, kills him, the master is not liable under the Death
act, if the servant deliberately intended to kill him.

ROGERS v. WHEELER. 43 N. Y., 598.

A trustee for bond-holders under a railroad mortgage who has bid in the
road on foreclosure, and is operating itfor their benefit, is to be regarded
as a common carrier of the goods shipped over it.”

Plft’s goods burned in transit; defts trustees of bond-holders,
mortgage had been foreclosed, and they under direction of
court, had bid in and were at the time operating the road for
benefit of the bond-holders.

(Dem. to answer so alleging, sustained. —Aff. at Gen. T.—
Aff.)

Hover v. BARKHOOF. 44 N. Y., 113.

Commissioners of Highways, having funds in hand or under their control
to repair a bridge, are liable to an individual for the damages specially
sustained by him from a negligent omission to repair it.

A person charged with a negligent omission to make a highway safe, can not
be allowed to testify that he believed he had used all the means necessary
to its safety.

Piff’s horse and wagon injured by falling of a bridge culpably
out of repair; defts were com’rs of highways charged with
98 Cases CONDENSED. (1871.

 

duty of repairing bridges, had funds or means of getting funds
to do so, knew bridge out of repair, concluded to let it remain
with slight repairs until the following spring, and then rebuild
it. A question to one of defts whether he believed they had
made use of all the means necessary to the safety of the bridge
excluded.

(Verd. for plffi—Aff. at Gen. T.—Aff.)

WILKINS v. HARLE. 44 N. Y., 172,

The innkeeper is liable under the innkeeper’s act for whatever amount is
deposited with him by his guest, although not informed of the amount.
Upon the issue as to the amount of money left with an innkeeper bya guest,
it is admissible to show that the guest was shortly before in possess.
ion of similar sums.

A juryis not bound to discredit a party’s evidence because he is contra-
dicted in one or more important particulars about which he can not be
deemed simply mistaken,

RITTENHOUSE v. INDEP. LINE oF TEL. 44 N. Y., 263.

The failure of a telegraph company to transmit a message as received is
evidence of negligence.

Where a telegram, as incorrectly transmitted, contains directions to buy
stock, and during the time spent in obtaining a correct message, the stock
rises in price, the measure of damages is the amount of such rise.

CHAMBERLAIN v, Waist. TRANS. Co. 44 N, Y., 305.

‘The provisions of the Act of Congress of March 3, 1851, that the owner of a
vessel shall not be liable for loss or damage to any goods or merchandise
shipped or taken on board any vessel by reason of fire occuring on such
vessel, unless caused by the design or neglect of the owner, extend to
ordinary baggage of passengers.

MoranGeEv. Mix. 44N. Y., 315.

A tax searcher is responsible for the damages occasioned by his failure to
return an assessment on the premises mentioned in the search, levied
against the person who owned them at the time the proceedings for the
assessment were begun, even though he did not own them when the
assessment was confirmed, and the assessment had to be made to: the
“owner or occupant.” . 5s
1871. } Cases CoNnDENSED. 99

 

In an action against a searcher for liens against real estate to recover
damages for failure to return a lien, ifthe searcher desires to avail him-
self of the fact that the plaintiff is protected against loss by covenants in
his deed, the burden of proof is on him to show that a remedy exists,
which is available to plaintiff and to which he should resort.

BEDELL v. Lone IsuanD R. R. Co. 44 N. Y., 367.

Railroad companies must have spark arresters on their dummy engines as,
well as on other locomotives.

Evidence of the emission of sparks from an engine, which have on prior oc-
casions set fire to adjacent property, is admissible to prove negligence in
using it.

Escape of large sparks continuously from an engine warrants the inference
of negligence in its management or construction.

Plff's house set on fire by sparks from deft’s dummy engine,
its spark arrester removed a few weeks prior to this fire, large
sparks were proved to have been emitted and carried a dis-
tance, and to have set on fire fences and buildings. Spark
arresters on dummy engines not in common use.

(Verd. for plff._—aAff. at Gen. T.—Aff. )

SEXTON v. ZeTT. 44 N. Y., 430.

It is negligent to leave an excavation in a sidewalk open at night without
taking any precautions to warn passers-by.

Permission of city authorities to dig a ditchin the highway is immaterial
in a case where an injury results from the negligent way in which it is
done.

PIff fell into ditch on sidewalk, night, right leg broken, ditch
several feet deep dug by deft opposite his premises, left un-
guarded, unlighted; evidence of permission from city authorities
to dig the ditch excluded as immaterial.

(Verd. $2,250.—Aff. at Gen. T.—Aff.)

Buack RIVER BANK v. PaGE. 44 N, Y., 453.

Mere delay of a creditor to comply with the request of a surety to enforce
. the security held by him from the principal debtor, which does not amount
to gross negligence whereby the value of the security is impaired, will not

discharge the surety. % : ,
100 Cases CONDENSED. (1871.

 

LANNEN v. ALBANY Gas Ligut Co. 44 N. Y., 459.

A gas company whose interest it is to discover whether a leak of gas in the
customer’s house is on its side of the meter must conduct carefully any
investigation it makes as to the whereabouts of the'leak.

Negligence of a house owner causing a leak in his gas-pipe is not the
proximate cause of an explosion caused by lighting a match during an
investigation as to the whereabouts of the leak.

Plff injured by explosion of gas in cellar of her father’s house,
caused by negligent lighting of a match by deft’s servant sent
by it without charge to investigate whereabouts of a leak, of
which deft had upon its request been notified, any loss of gas
being its loss if occurring below its meter; evidence that the
leak was caused by her father’s negligence excluded. Injury,
thigh broken.

(Verd. $2,000 excep. at Gen. T.—Excep. overruled at Gen.
T. judg. ord. on verd.—Aff.)

Warner v. N.Y. Cent. R. R.Co. 44 .N. Y., 465,

A railroad company owes no duty to travellers on country roads to run its
_ trains slowly at crossings.
A railroad company has the right of way at crossings.
In an action to recover dainages occurring through negligence it is not to be.
presumed that plaintiff was free from fault.
Upon an issue whet):er a flagman signalled at a crossing, evidence that heis
a man of intemperate habits is inadmissible.

PIff injured at deft’s crossing, country road; main question de-.
cided arose on charge of court to the effect (1) high rate of
speed at country crossings is fault of railroad company subject-
ing it to responsibility for damages to citizens who may be in-
jured at the crossings; (2) railroad company has no superior
tight of way at its crossings; (3) plff would be presumed free from
fault ifnothing else appeared in the case; another question arose
on admission of evidence that deft’s flagman was ot intemperate
habits and his intemperance was known to deft, the issue being.
whether he warned plff. Injury, hip broken and abdomen
ruptured.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)
1871.) Cass CONDENSED, 101

 

McPappeEN v. N. Y. Cent. R. R. Co. 44 .N. Y., 478.

‘To warrant a recovery by a passenger, in a railroad train for damages
received in accident caused by the breaking of a rail, he must show that
the break was caused by a discoverable defect in the rail, or that the
company was negligent in not discovering the break. -

PIff passenger, injured through car running off track, because
of broken rail, track inspected an hour before the accident:
another train had passed safely over a few minutes before,
locomotive of plffs train also, no cause for breaking of rail
shown other than that the morning was very cold, time when
break occurred not shown.

(Non-suit.—Rev. at Gen. T. new tri. ord.—Rev. judg. ord. on
non-suit.)

WITBECK v. HOLLAND, 45 N, Y., 13.

Express companies must make diligent effort to make personal delivery of
express packages.

Dyke v. Erte Rattway Co. 45 N. Y., 113.

The laws of another state limiting the amount of damages recoverable
against railroad companies for personal injuries occurring in such state
do not apply to an action brought in this state by a passenger for an
injury so occurring, where he was travelling on a ticket bought in this
state for carriage between two points in this state and the passing through
such other state was an incident of such carriage.

Plff passenger, upon ticket bought in this state for carriage
between two points in this state, injured in an accident happen-
ing at a point on deft’s road in Pennsylvania; by statute of
Penn. recoveries for personal injuries against railroad com-
panies were limited to $3,000, Injury, legs broken and bruises.

(Verd. $35,000.—Aff. at Gen. T.—Aff.)

FLoypD v. ERIE Ratitpway Co. 45 N. Y., 118.

Same facts as Dyke case. Injury, various bruises on head

and body.
(Verd. $15,000.—Aff. at Gen. T.—Aff.)
102 Cases CONDENSED. [1871.

 

DourE v. GENIN. 45 N. Y,, 119.

A landlord is under no duty to a lessee of part of a building to repair
another part injured by fire.

Plff tenant of part of deft’s building, roof burned; deft
omitted to repair it, plff’s goods injured ; lease contained clause
providing for cessation of rent in case of fire, but no clause
requiring landlord to repair.

(Verd. for plffi.—Rev. new tri. ord.—Aff. judg. absol. against

pif.)

SLoAN v. N, Y. Cent. R. R. Co. 45 N. Y., 125.

It is inadmissible to ask a plaintiff's physician whether at the time he treated
her for her injury she had venereal disease.

Plf injured in railroad accident; only question was as to
whether a collateral statement of deft's witness was properly
impeached ; also whether it was proper to ask of plff’s physician
on the cross, whether she had venereal disease while he treated
her; excluded. Injury, various body injuries and burns, causing
chronic female diseases, &c.

(Verd. $12,000.—Aff. at Gen. T.—Aff.)

Requa v. Ciry or Rocwester, 45 N, Y., 129.

An ordinance of a municipality providing that all streetsand alleys opened for
five years shall become streets and alleys for all purposes and that the
common council shall have the same authority over them as over those laid
out by it, is an acceptance of such an alley, dedicated by its owner, soas to
make the municipality bound to keep such alley in safe state for travel.

A municipality having permitted a construction in its highway designed
to facilitate its use, is bound to maintain the same in safe condition.

Existence of a defect in a highway for two weeks is sufficient to authorize
an inference that the public authorities had notice thereof,

PIff thrown out of his wagon through removal of plank from
bridge across a gutter between deft’s street and an alley, which
was once a private alley, owner had dedicated it to city, city
passed ordinance’ that alleys opened for five years (this was)
should become public ways for all purposes; did not appear

‘that the city had built the bridge, it had graded down the street
rendering a bridge necessary, bridge built by some one; not
shown by whom plank removed, had been gone about two
1871. ] Casts CONDENSED. 103

 

weeks ; piffs sight imperfect.. Injury, hip, knee and ankle,
bruised, sprained and broken.

(Verd. $500, excep. at Gen. T.—Excep. overrul. at Gen. T.,
judg, ord. on verd.—Aff.)

BURNELL v. N. Y. Cent. R, R, Co. 15 N. Y¥., 184.

Plff passenger, checked trunk by deft’s road to N. Y.; deft at
Albany delivered it to Hudson River Road, which brought it
to N. Y.; plff gave check to expressman, who neglected to go
for it for two days ; trunk then missing. eld, deft liable.

BARKER v. Savaen. 45 N. Y., 191.

Foot passengers when crossing streets have no superior right of way over
vehicles.

A foot passenger going over the crosswalk of a street is bound to look out
for vehicles in either direction.

Plff.crossing city street at crosswalk, without looking either
way for vehicles, run down by wagon driven at moderate
speed by one deft, belonging to the other deft; driver when twelve
feet off shouted to plff, she did not hear him on account of
her hood; court charged that a person on foot crossing a street
had the right of way, and was not bound to look either way
for vehicles. Injury, leg amputated.

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

Etwoop v. Wsst. UNION Tei. Co. 45 N. Y., 549.

Telegraph companies must not transmit messages to the effect that a per-
son is worthy of credit, without taking care to ascertain that the message
is really authorized by the apparent sender.

Deft’s telegraph operator transmitted to plffs a message pur-
‘porting to come from the cashier ofa bank that the bank would
pay checks of one McCarthy; message was written in deft’s
office by McCarthy, operator knew it and knew McCarthy by
‘name; McCarthy same day presented check to plffs on the bank;
plffs on faith of telegram paid him $10,000. :
104 Cases CONDENSED. (1871.

 

Reep v. N. Y. Cent. R. BR. Co. 45 N. Y., 574,

Statements as to his health made by an injured person are inadmissible.
Evidence that a railroad company has laid new ties at other places than
that of an accident and subsequently thereto is inadmissible.

PIff passenger, injured through car being thrown from track ;
evidence allowed of plff's statements as to his health, also of
deft laying new ties on its road at places other than that of
the accident and subsequently. Injury, bruises on head and body.

(Verd. $4,000.—Aff, at Gen. T.—Rev. new tri. ord.)

BARRETT v. THIRD AVE. R. R. Co. 45 N. Y., 628.

A carrier of passengers is bound to stop his vehicle, if he can, so as to avoid
a threatened collision.

Payment by one wrong-doer of a sum of money in an action against two,
upon no other agreement than that the action shall be discontinued, is
no defense to a subsequent action against the other.

Piff's leg injured in a collision between deft’s car and a freight
car of Harlem R. R. Co.; had sued both companies in former
action, discontinued on Harlem company paying $100, not
shown that such payment was made in accord and satisfaction,
but only on discentinuance ; only two questions brought up by
exceptions, as to the effect of the payment, and on charge that
if deft’s driver saw the freight car in time to break up and avoid
the collision he was bound to do so.

(Verd. $2,000.--New tri. ord. on case at Spec. T.—Rev. judg.
ord. on verd. at Gen. T.—Aff )

Gorton v. ERIE RAILWAY Co. 45N. Y., 660.
It is negligence fora person to crossa railroad track without lookirgalong it.
Plff injured at deft’s crossing by locomotive, no signals given;
had he looked up the track before crossing, he would have seen
it in time to avoid it. Injury, jaw-bone broken.
(Verd. $1,000, Aff at Gen. T.—Rev. new tri. ord.)

Bostwick v. BAuT. & Onto R. R. Co. 45 N. Y., 712.

Plff made verbal contract with deft’s agent for carriage of his
goods ; afterwards delivered the goods, took depot receipts, sent
them toagent to get billof lading, same sent after goods shipped,
contained clause of exemption which plff did not notice. Held
not binding.
1871.} Cases CONDENSED. 105

 

Baupwin v. U.S. TEu.Co. 45 N. Y., 744.

Mistake in message—connecting lines, not partn2rs—measure
of damages.

RICHARDSON v. N. Y. Cent. R. BR. Co. 45. N. Y., 846.

If the situation at a crossing is such that ringing the bell and sounding the
whistle are not sufficient to warn travellers of an approaching train, the
railroad company must adopt other precautions.

Plff driving over deft’s crossing, after exercising due care,
stopping, looking, listening; horses and wagon injured,
by its train, not seen because of a cut anda watch house, not
heard because of falling water near by; at the crossing the
railroad was on an embankment ten feet above the natural
level, highway being carried up over the embankment ; bell
rung and whistle sounded. (Report for Plff.—Aff. at Gen. T.— Aff.)

HIGGINS v. WATERVLUIET T, & R.R.Co. 46 N. Y., 28.

A carrier is answerable for the act of its conductor in ejecting a passenger
from its car under the mistaken belief that he was drunk and disorderly.

Ejectment of passenger by conductor of horse car, claimed to
be drunk and disorderly, proved not to be. (Verd. $567.27.—
Aff. at Gen, T.—Aff.)

McCarrny v. Ciry of Syractse. 46N. Y., 194.

The owner of the land under a street has the right to excavate the soil
under it, and occupy the space so long as he does not interfere with the
public right of way.

A municipal corporation, if charged with the duty of keeping its structures
in repair, is bound to exercise a reasonable degree of watchfulness in
ascertaining from time to time their condition.

Or,

Where the dilapidation of a structure of a municipal corporation is such that
itis an ordinary result of its use, and would be discovered on inspection,
the corporation is liable for the damages resulting therefrom.

Or,

Where the dilapidation of a structure of a municipal corporation is such
that it is an expectable result of its use, and is discoverable on inspection,
notice of an actual dilapidation is not necessary to fix upon the corpora-
tion a liabilty for the resulting damages.

Plffs goods in basement under si‘ewalk injured bv a sct-
‘back in a sewer caused by an vbstruction from the falling dow a
106 Cases ConDENSED. (1871.

 

of some bricks ; the city officials had no knowledge of this ob-

struction, but it could have been discovered on inspection ; by

its charter, the city was under the duty to repair its sewers; the

owner of the premises owned the land under the sidewalk.
(Report for plff.—Aff. at Gen. T.—Aff.)

BENDETSON v. FRENCH. 46 N. Y., 266.

Where the loss of a guest’s valuables occurs on the eve of his departure at
such a time that if they had been deposited with the innkeeper under the
innkeeper’s act, they would have been returned to him, the act does not
operate to relieve the innkeeper on the ground that no deposit was
made,

 

Lams v. Cam. & Ams. RB. KR. & T. Co. 46 N.Y., 271.

The exemption of a carrier in a bill of lading from loss by fire does not ap-
ply where the fire occurs through its negligence, but in such a case the
burden of proof is on the shipper to show negligence,

KELLOGG v, SWEENEY. 46 N. Y., 291.

When a guest loses gold coin he is entitled to a judgment for gold against
the innkeeper, /

WILKINS v. EARLE. 46 N. Y., 358.
S. C., 42, How Pr., 255.
(Ist Appeal, 44N. Y., 172.)
(Question this time only one of practice.]

 

PARROTT v. KNICKERBOCKER Ick Co. 46N. Y., 361.

A sailing vessel drifting with the tide in a river is not bound to anchor soas
to lessen the risk of collision with steamboats,
Steamboats must keep clear of drifting vessels, as well as those at anchor

or sailing,

Piff's sloop injured in collision with deft’s steamboat, night,
clear, lights set, sloop drifting, momentary puff of air threw her
boom to eastward, canted bow to westward, had no steerage
‘way, run into by deft’s boat, which had headed towards her
1871. ] Cases ConDENSED. ‘107

 

for several miles, had not changed her course, when puff struck
sloop too near to avoid collision.

(Rep. for plff_—Rev, at Gen. T, new tri. ord.—Rev. Judg. on
Rep. Aff.)

Notr.—The general term reversed this judgmenton the facts,and the Court

of Appeals, looked into the evidence to see whether the report was against
the evidence so as to entitle the gen. term to set aside, and held it was not,

 

ACER v. WESTOOTT. 46 N. Y., 384.

A person searching a title is not negligent in failing to examine a contract
mentioned in a recital of a deed which states that the deed is made pur-
suant to such contract.

REDMOND v. LIVERPOOL, N. Y. & P.S.Co. 46 N. Y.,578.

Upon carrier’s duty to consignee as to the delivery of im-
ported goods liable to duty 1 under revenue laws.

Warp v. N. Y. Cent. R. BR. Co. 47 N. Y,, 29.

Failure to carry goods in reasonable time—measure of dam-
ages,

Downs v. N. Y. Cent. R. R. Co. 47 N. Y., 83.

It is not negligent for a parent when traveling to allow a son of twelve years
of age to leave the parent’s presence and ride in another car.

When a train stops at a station, it must not be started up with a jerk before
passengers have had a reasonable opportunity to get off.

Evidence that negotiations for a settlement were pending is admissible to
explain delay in bringing suit.

The declarations of an injured person justafter an accident, in his own favor,
are not admissible to contradict other declarations made at the same
time to other persons and not in the course of the same conversation.

PIff boy of 12, passenger, traveling with mother, gave up his
-seat to a lady, went into smoking-car with mother’s permission;
when train stopped at station, started to return to his mother,
while alighting from car, was thrown off and under it by a
sudden jerk; deft proved delay of several years in bringing
‘suit, plff allowed to show that during these years there were
108 Cases ConDENSED, [1871.

 

negotiations fora settlement ; deft gave evidence of declara-
tion of plif at time of injury inconsistent with his account as a
witness, plff allowed to show by another witness that in a con-
versation with him, not connected with that proved by deft,
but on same occasion, he had made a statement similar to his
account as a witness. Injury, left arm amputated.

(Verd. $7,000.—Aff. at Gen T.—Rev. new tri. ord. on admis-
sion of plff’s declaration in his own favor.)

Briant v. TRimMER, 47 N. Y., 96.

A general objection to a question to a physician, whether he can state the
probable result of an injury, does not raise the point that it calls for‘his
opinion as to possible results.

PIff injured in collision on highway, due to deft’s negligence ;
physician was asked ‘‘can you state as to the probable result
and extent of the injury,” objected to generally, objection
overruled. Injury, back and side bruised.

(Verd. $383.41.—Aff. at Gen. T.—Aff.)

Isaacs v. THIRD Avg. R. R. Co. 47 N. Y, 122.

PIff, passenger, kicked off car by conductor while alighting.
As theCourt of Appeals have since definitely said that this case
was erroneously decided, giving as the reason that ‘‘the mind
of the court was not called to the fact that the rule” applied
had nothing to do with the facts to which it was applied (go
N. Y., p. 594): it is not necessary to state the rule of this case,
Injury, leg broken.

(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord.)

JOHNSON v. BELDEN. 47 N. Y., 130.

When a common carrier, under obligation to deliver freight with all reason-
able diligence, finds himself confronted by a danger of navigation, which
may result in injury to his vessel, but which he believes he may safely
pass, it is not necessarily negligent for him to proceed.

Plffs canal boat, while going through lock of Chenango
canal, injured by giving way of the lock due to its being out of
1872.) | Cases CONDENSED. 108

 

repair, no lock tender at hand, lived a mile or so off; plif tend-
ed lock himself as other captains did, knew its condition, but
thought he could get through safely; deft the contractor for
that section, bound to keep the lock in repair, and a lock tender
on hand to tend it; the lock tender whose duty it was to be
there knew of its condition. ,

(Report for plffi—Aff. at Gen. T.—Aff.)

Horrman v. Union Ferry Co. 47 N. Y., 176.

The failure of one traveler to follow a law of the road does not justify an-
other traveler for an omission to do what he can to avoid an expectable
collision.

Piff's boat run down in a fog in New York harbor about 5 p.
m. by deft’s ferry boat, was in a tow, the towing tug had usual
lights for tugs in N. Y. harbor, but not the lights required by act
of Congress; the boats were discernible 300 yards off, tug reversed
its engines, had ferryboat done same collision avoided.

(Nonsuit, exc. at Gen. T.—Exc. overrul. at Gen. T. judg. ord.
for deft.— Rev. new tri. ord.)

BarRD v. GILLETT. 47 N. Y., 186.

In an action against a physician for malpractice, evidence that he has not
_ presented any bill is inadmissible. ‘

 

JACKSON v. SECOND AvE. R. R, Co 47 N. Y., 274.

Where a carrier’s conductor is acting under the carrier’s orders to eject pas-
sengers from its conveyance who refuse to pay a specified fare, it is an-
swerable for anything he does in carrying out the orders, if the fare is
illegal, and if the fare is legal, it is answerable for any excessive zeal on
the partof the conductor.

Whether an act of a servant was wilful and malicious or was mistakenly
conceived by him to bea necessary use of force to carry out his master’s
orders is a question of fact.

CALDWELL v. N. J. SreampBoat Co. 47 N. Y., 282.

A carrier of passengers is bound to use the utmost skill, care and foresight
in ascertaining and adopting new improvements for its vessels so as to
secure additional protection.
110 Cases CONDENSED. {1872.

 

The custom of skilful manufacturers is not conclusive upon the question
whether the requisite amount of care has in particular case been used in
making a vessel safe for the carriage of passengers.

A carrier of passengers is bound to employ any means which science has
demonstrated and made known to be useful and effective in avoiding or
remedying defects in the construction of fts vessel, although such means
are not generally used.

While failure to comply with the provisions of law subjects a common
carrier to the charge of negligence, his compliance therewith does not
necessarily relieve him from such a charge.

Corporations are not exempt from the law as to punitive damages.

PIff passenger, scalded and permanently injured in explosion
of boiler on deft’s boat. As there were some twenty-five spe-
cific requests to charge, as to each of which the court charged as
requested or declined or charged with a modification, and as
there were a number of exceptions to the charge as made and
as it was on the questions raised by them the appeal turned, it
may be deemed sufficient to say that the points on which this
case was decided may be reduced to five and are comprised in
the rules above given.

(Verd. $20,000.—Aff. at Gen. T.— Aff.)

IHL v. 42d AND GR. St. Fer. R. R. Co. 47 N. Y., 317.

Negligence can not be predicated of the act of a child on sud juris.

Whether it is negligent in a child’s parent to intrust it to the care of an older
child in the public streets is a question of fact.

Absence of proof of special damage resulting to next of kin from a death
does not require a verdict of nominal damage.

Damages resulting to next of kin from a death are to be awarded by the
jury upon a consideration of the age and sex of the deceased, the civcum-
stances and condition of life of the next of kin and such other facts
existing at the time of the death or trial as are material.

Piff's intestate, boy of 3, sent by his mother with another
child of 9 on an errand necessitating crossing deft’s track,
while crossing it, he fell, horses attached to deft’s car struck
him, wheels ran over him. driver not looking.

(Verd. $1,800—Aff. at Gen. T.—Aff.) |

 

Davis v. N. Y. C. Anp H. R. R. R. Co. 47 N. Y., 400.

The fact, that the situation at a railroad crossing is such that a traveler in a
conveyance can not see nor hear an approaching train unless he gets
out and goes to the track, dues not make it incumbent upon him to do so.
1872. ] Cases CONDENSED. 111

 

Plff's intestate killed at deft’s crossing, its negligence con-
ceded ; the question was whether he was bound to get out of
his wagon and go to the track to look for a train, the situation
at the crossing being-such that he could not see nor hear an
approaching train from his wagon.

(Non-suit, exc. at Gen. T.—Exc. sustain. at Gen. T. new tri.
ord.—Aff. judg. absol. for plff.)

Crry oF BROOKLYN v. BROOKLYN Crry R. R. Co.
47 N. Y., 475.

Plff mulcted in damages ($7,000) by a citizen injured while
driving along its highway, wagon precipitated into a hole of
some days standing within line of deft’s track , deft under con-
tract with plff to keep street between its tracks in repair.

(Non-suit, because of certain clauses in the contract which
as they involve law of contract need not be stated here.—Rev.
at Gen. T. and new tri. ord.—Aff. judg. absol. for plff.)

DICKSON v. B’way & 7TH AVE. BR. R.Co. 47 N. Y., 507.

Plff's intestate, passenger, the original plff, injured through
deft’s negligence, no question of law in the case. Injury, leg
and ankle fractured.

(Verd. $3,000.—Rev. at Gen. T. new tri. ord.—App. dism.)

KEENEY v. GRAND TRUNK R. R. Co. 47 N. Y., 525.

Plff shipped cattle under contract containing exemption
clauses as to negligence and transportation by any particular
train, or within any certain time; on the journey the cars con-
taining them were side-tracked for two or three days, where they
could not be unloaded nor fed, nor watered; some died, others
injured. Held, deft liable. on theory that it was not a mere
act of negligence, but abandonment of intention to perform

contract.
113 Cases ConDENSED. [1872.

 

AYRAULT v. PaciFIc BANK, 47 N. Y., 570.

A bank receiving a bill or note for collection, whether payable at its counter

' or elsewhere, is liable for any neglect of duty by which any of the parties

to it are discharged, whether of its officers and immediate servants or

other agents of the bank or its agents or its correspondents ur agents

employed by such correspondents.

A notary which a bank employs to present a note is its agent.

A direction by a holder of a note, to protest it if not paid, does not by legal
implication establish a special contract limiting the liability of the bank
to a mere agency to employ a ndtary to protest it.

(

Humes v. Tas Mayor etc. of N. Y. 47 N. Y., 639.

A municipal corporation is not an insurer against injury occasioned by the
falling of a structure projecting over the highway.

PIff injured by fall of awning erected by property owner over
deft’s sidewalk; awning had been injured and repaired, fell
under heavy weight of snow. Injury, thigh broken.

(Verd. $12,000.—Aff, at Gen. T.—Rev. new tri. ord.)

. KELLY v. Lone Isutanp R. R. Co. 47 N. Y., 657.

Plff injured at deft’s crossing, only question of fact. Injury,
leg amputated.
(Verd. $5,000.—Aff. at Gen. T.—Aff.)

 

Tracy v. Kuntz. 47 N. Y.,, 663. e.

Piff's intestate, original plff, crossing street, deft’s servant
negligently drove against her. _ Question of contributory negli-
gence not raised by the exceptions. Injury, leg and ankle
crushed and lacerated—causing “sloughing” of flesh from shin
bone.

(Verd. $1,000.—Aff. at Gen. T.— Aff. )

 

MADDEN v. N.Y. Cent. & H. R.R. Oo. 47 N.Y., 665,

If a person at a railroad crossing sees a train approaching and _ notwith-
standing goes upon the track, he is chargeable with negligence.
1872.] CasEs CoNDENSED. 113

 

Or,
It is negligence in a person at a railroad crossing to go upon the track
when an approaching train is seen by him.

Plff’s intestate killed at deft’s crossing ; court refused tocharge
that ifthe jury believed that if the deceased saw the train ap-
proaching before she reached the track and notwithstanding
went upon the track where she was hit, she was chargeable
with negligence.

(Verd. $2,000.—Aff. at Gen. T.—Rev. new tri. ord.)

BREESE v. U.S, Tet. Co, 48 N. Y., 132.

A telegraph company is not an insurer.

A telegraph company may limit its liability on a message by notice duly
brought to the sender’s knowledge.

The sender of a telegram may be presumed to know and assent to a condi-
tion printed on blanks, which have been in his possession for some time,

SwarrHour v. N. J. StEAMBOAT Co. 48 N, Y., 209.

An inspection of a steamboat boiler and a certificate by a U. S. inspector
that it comes up to the requirements of the Acts of Congress do not ex-
onerate the owner from his common law liability to respond for negli-
gence in having a boiler-on his boat which is really unsafe.

A person injured through another’s negligence is entitled to recover what
in the judgment of the jury he should receive tor his bodily sufferings.

Plff passenger, injured in boiler explosion on deft’s boat ; due
to escape of steam, result of improper fastening of part of boiler;
there had been for years an improved mode of fastening, if
adopted no explosion ; deft proved boiler had been inspected in
compliance with Acts of Congress (July 7, 1838, and Aug. 30,
1852), and it came up to requirements of those acts in opinion
of inspector; court charged plff entitled to recover what in
their judgment he should receive for his bodily sufferings. In-
jury, head, neck, face and hands scalded and burned.

(Verd. $2,000.—Aff. at Gen. T.—Aff.)

RAwson v. PENN. R. R. Co. 48 N. Y., 212.

Baggage lost, exemption clause on ticket not read by plff, no
attention called to it when bought. edd, clause no defense.
114 Cases CoNDENSED. [1872.

CoMMERCIAL BANK OF ALBANY v. TEN EYCcK.
48 N. Y., 305.

The delivery up by the cashier of a bank to a responsible debtor of a por-
tion of collateral pledged to the bank for a loan by direction of the bank's,
president is not, in the absence of notice that there is collusion between,
the president and the debtor, an act of negligence on the part of the

cashier,

The neglect of a cashier to inquire of responsible brokers to whom the
bank’s securities have been sent by him for sale whether they have been
sold, and to take steps to have them pay over such proceeds, is not

actionable negligence,

Levy v. GREAT WESTERN R. R. Co. 48 N. Y., 675,

Plff. injured at deft’s crossing ; she negligent under rule in
Gorton v. Erie R. Co., 43 N. Y., 660. Injury, two ribs broken,
right lung injured permanently, scalp lacerated, ankle and leg
injured and foot bruised.

(Verd. $3,500. Aff. at Gen. T.—new tri. ord.)

CoLk v. N. Y. Cent. R. R. Co. 48 N. Y., 679.

The mere fact that a rail broke does not warrant a finding that a passenger,
injured by a car running off the track in consequence thereof, was
injured through the carrier’s negligence.

Or,

A carrier by railroad is not an insurer of passengers against damages by
reason of broken rails.

Plff, pasenger injured in wreck of car, ran off track in con-
sequence of broken rail, no evidence showing any negligence
on deft’s part. Injury, part of nose cut off, head, back, &c.
bruised, spine injured, leg contused, abscess ensuing.

(Verd. $3,000.—Aff. at Gen. T,—Rev. new tri. ord.)

Fizer (W, T.) «, N. Y. Centr. R. R. Co. 49 N. Y,, 42.

A husband is entitled to recover damages for future as well as past loss of
services of his wife.

Plff’s wife injured while alighting from deft’s train ; the only
question was whether plaintiff was entitled to recover for loss
of services in future.

(Verd. $3,000—Aff. at Gen. T.—Aff. )
1872. ] Cases ConDENSED. 115

 

Finer (H. M.) v. N. Y. Cexr. R, R. Co. 49 N. Y., 47.

Where alleged contributory negligence of the person injured is induced
by an act of the defendant, it is a question of fact whether such
person was negligent.

Loss of power to earn money is not an item of damage to a married woman
unless she is actually engaged in business or labor on her own account.
PIff, passenger injured while alighting from deft’s train at a

station; train did not stop, moved slowly past station, plff

waiting on platform, another passenger got off safely, brake-
man told plff she had better get off, they were not going to
halt any more, train started with increased motion but still
moved slowly; in attempting to get off her clothing caught on
steps, fell, permanently disabled. Injury, shock, back bruised,
resulting in abscess, loss of earning power.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Norz.—See Hunter case, 112 N. Y., 371.

PHILLIPS v. RENSSELAER & Sar. KR. KR. Co. 49 N.Y., 177.

It is negligent for a passenger to attempt, without sufficient reason, to board

a train before it has come to a stop.

Plff injured while attempting to board deft’s train before it
had come to a stop.

(Nonsuit.—Rev. at Gen, T. new tri, ord.— Rev. judg. on
nonsuit.)

THompson v. Farco. 49 N.Y., 188.

Express package lost, plff consigner, not its owner. Held, no
tight to sue.

PENN v. BUFFALO & Erte R. BR. Co. 49 N. Y.. 204.

Plff’s cattle died and injured in transit, train detained by snow
storm, deft declined to build platform so they could be un-
loaded, fed and watered. Held, not liable under exemption
clause in contract,
116 CasEs CONDENSED. [1872.

 

HEDGES v. HUDSON River R, R. Co. 49 N. Y., 223,

Where a consignee is notified by the carrier of the arrival of the goods, he
cannot excuse his neglect to remove them within a reasonable time by
the plea that his own affairs required his attention to be given to other
matters.

.

COCHRAN v. DINSMORE, 49 N. Y., 249.

Express package lost, exemption clause in receipt, against
loss unless by fraud or negligence. Held, burden of proof on
plff to show loss from such cause.

COSGROVE v. OGDEN. 49 N. Y., 255.

That an injury is due to a servant’s disregard of his master’s instructions
as to the manner of doing his work is no ground for relieving the master
from liability for damages resulting from his negligently doing the work.

Whether it is negligent to allow a child of six years to play unattended ina
retired street is a question of fact.

PIff, boy of 6, while playing unattended in a quiet city street,
injured by falling of timber from a pile of lumber on sidewalk,
placed there by deft’s superintendent who had been instructed
by defts not to pile the lumber at that place, which was nearly
opposite plff's house, more than a block from deft’s lumber yard;
superintendent had entire charge of removing and piling deft’s
lumber. Injury, nose broken, scalp torn.

(Verd. $450,—Aff. at Gen. T.—Aff.)

PoUCHER v. N, Y. Cent. R. R. Co. 49 N. Y., 263.

After stock have been loaded on a train about to start, and the person, who
is to take charge of them under the provisions of a drover’s pass, is
about to take passage thereon, the journey is to be deemed to have
begun so as to make the exemption clause of the pass apply,

Plff struck by stick of wood thrown from tender of a freight
train on which he was to take passage to tend his sheep trans-
ported under a contract by which he agreed to “take all the risk
of personal injury from whatever cause, whether of negligence
of deft, its agents or otherwise”, he having a drover’s pass which
provided that its acceptance should be considered “waiver of
1872, ] Cases ConDENSED. 117

 

all claims against the company for personal injury received
while on the above train.” Injury, foot broken.

(Verd. $500 subj. to opin. of Gen. T.—Judg. directed on verd.
at Gen. T.—Rev. new tri. ord.)

COMMERCIAL BANK v. VARNUM. 49 N. Y., 269.

A notary, to whom a bill is given tocollect, is not bound to demand payment
in person in any place where there is general custom for notaries to
make such demand through their clerks.

If a bank gives to its notary a bill with directions to make demand and
protest upon the wrong day, whereby a party to it is discharged, it can
not recover from him its damages for the mistake.

‘Or,

A notary, even though a lawyer, owes no duty toa bank which gives hima
note to collect, to make demand and protest on the right day when the
bank makes a mistake and directs him to make demand and protest on
the wrong day. ,

SILLIMAN v. Lewis. 49 N. Y., 379.
Hoffman v. Union Ferry Co., 47 N. Y., 176, followed.

Plff’s barge being towed, at rear of tow, had light indicating
being at anchor, had no light as required by Act of Congress, run
into by deft’s schooner, which, at a point near enough to discover
that the barge was not at anchor but was being towed, changed
her course, and attempted to pass between the barge and other
boats in tow under circumstances which the jury might have
found rendered such attempt unnecessary and negligent.

(Non-suit.—Aff. at Gen. T.—Rev. new tri. ord.)

WEBB v. ROME, WATERT. & OG. R, R. Co. 49 N. Y., 420.

ignition of property on adjoining premises is not a remote consequence of
a fire on one’s own land, where it is communicated by agencies which
would naturally do so.

A negligent fire is not an accidental fire within the meaning of the statutes
of Anne and George as to accidental fires.’
Plffs woodland burned in a time of drought by fire communi-

cated from a fence between it and deft’s track, fire conducted to
118 Cases CONDENSED. 1872.

 

fence by rubbish on deft’s land from ties on its track set on fire
by coals dropped during strong wind from an engine out of

order.
(Verd. for plfi—Aff. at Gen. T.—Aff.)

ZINN v. N. J. STEAMBOAT Co, 49 N. Y., 442.

Plff consignee of goods; deft made no due effort to find or
notify him, stored the goods which fell in value. e/d, carrier
liable for loss.

BaBcock v. LAKE SHORE & M.S. BR. B. Co. 49 N-Y., 491.

The common law liability of a succeeding carrier may not be limited by a
prior carrier by virtue of a contract between the latter and the shipper
limiting his own liability over his own route and making him a forwarder
only. :

Or,

A shipper, who contracts with a carrier to have his goods carried to the end
of the latter's route and then forwarded by another carrier, does not by
virtue of a clause in the contract limiting the common law liability of
the first carrier thereby empower the latter to limit that of the next
carrier.

Lanine v. N. Y. Cent. BR. R. Co. 49 N. Y., 521,

A master owes a duty to his servant to discharge another servant who has.
to his knowledge become incompetent.

Where the 1 aster has indicated to his servant an intention to discharge an-
other servant who has become incompetent, it is a question of fact
whether it is negligent for the former to remain in the master’s employ.

Piff, employee of deft, injured by fall of improperly con-
structed scaffold put up under directions of its’ foreman, latter
drunk at the time; took to drink after entering its employ, his
habits had become known to deft’s employing agent who had
told plff if foreman did not do better would discharge him. In-
jury, both legs broken and spine injured.

(Verd. $10,000.—Aff. at Gen. T.—Aff.)

Dininyy v. N. Y. & NEw Hav. RB. R. Co. 49 N. Y., 546.

Baggage stolen during night ; on arrival of train, plff tried to
get it promptly, baggage master gone ; that evening wagon sent
1872.] Cases CONDENSED. 119

 

for it; while baggageman was getting it out of depot, man drove
off, no other conveyance could be found, baggage master con-
sented to keep it till morning. eld, deft liable.

MARTIN v. FaRNSwWoRTH. 49 N. Y., 555.

A charterer of a vessel does not become the superior of her pilot, by virtue
simply of a chartering by his agent under a special authority to charter
her on the best terms he can, which terms include paying the pilot.

Or,

In the absence of a special agreement, either in person or by authority toan
agent to make a special agreement, making a charterer of a vessel with
her master, crew and pilot liable for injuries to her resulting from the
negligence of those managing her, the charterer is not the superior of
any of the persons managing her.

Plffs boat sunk through negligence of a pilot in charge
of her, she having been chartered for deft by deft’s agents;
pilot was found by plff, taken to deft’s agents who hired him;
agents authority from deft to charter boat was to hire it on the
best terms they could; the hiring was of the boat with master
and crew and equipments at an agreed rate per hour, plff
hiring and paying the crew, furnishing all supplies except coal,
for which deft was to pay, deft was also to pay for the cost of
pilot.

(Verd. for plffi—Rev. at Gen. T.—new tri. ord.—Aff. judg.
absol. for defts. )

Mayor &c OF Troy v. Troy & Lans. R. R. Co.
49 N. Y., 657.

A reservation, in a license to lay tracks inastreet, of a right to revoke it
on the licensee’s failure to comply with an agreement to keep the streets
safe for passage, does not affect the liability of the licensee for damages
sustained by thelicensor by reason of the licensee’s failure to keep that.
agreement,

Where a person has agreed to save another harmless from results of his neg-
ligence, a judgment roll in an action against the former for damages re-
resulting from such negligence, is conclusive against the latter, where he:
has been given opportunity to defend the prioraction.

PIff, sustained damages by the recovery against it of a judg-
ment of $3,825, in favor of a passer-by on its street, whose
sleigh was overturned by being precipitated from the top of
120 CasEs CONDENSED. (1872.

 

snow bank along the sides of deft’s tracks into an excavation
made by deft by clearing away the snow along its track and
leaving iton the sides; deft had a license to lay its track on
plff’s street provided it should remove all snow between, and for
18 inches outside of, its track and afford safe and unobstructed
passage for vehicles ; in default common council had a right
to revoke license ; judgment roll admitted as conclusive on deft,
it having been given notice of prior suit and opportunity to
defend.
(Verd, for plff,—Aff. at Gen, T.—Aff.)

Cout v. SixtH AVE. R.R. Co. 49 N. Y., 671,

Rule as to giving passenger reasonable time to alight followed.

Plff, passenger, injured while alighting from deft’s car; it
started on signal from conductor before she was entirely free
from it, feet had reached the ground, but her dress being caught
she was thrown down. Injury, neck of hip joint broken, per-
manently crippled. ,

(Verd. $5,500.—Aff. at Gen. T.—Aff.)

BRICKNER v. N. Y. Cent. R. R. Co. 49 N. Y., 672.

Piff’s intestate killed in same accident as that in Laning agst,
same deft, 49 N. Y., 521. The statement ‘‘ case reported below
2 Lansing 506” is not strictly accurate in that it is the report of
a reversal of a nonsuit from which deft did not appeal,

(Verd. $3,000.—Aff. at Gen. T.—Aff.)

Keatine v. N. Y. Cent. BR. BR. Co. 49 N. Y., 673.

A place where passengers are allowed to get on and off trains is to be con-
sidered as a station in determining whether a train is negligently
started. :

Plff, passenger, injured by sudden starting of deft’s train,
while boarding it on the other side from station ; passengers

living in that part of the village where plff lived were accus-
tomed to getting on and off trains on that side with knowledge
1872. ] CasEs ConDENSED. 121

 

of, and without objection from deft’s employees ; train started
without signal or examination to see if any one was getting on,
Injury, loss of arm.

(Verd. $5000.—Aff. at Gen. T.—Aff.}

VINER v. N.Y. ALEX. G. & W.S. 8S. Co. 50 N.Y., 23,

Plff sued in conversion, merchandise -shipped by deft’s line,
consigned to plffs order, deft delivered it to a person who
showed a letter written by plff to him containing this clause,
“the roll sent you to-day (day of shipment) you will find very
good quality.” Held a question of fact whether by plff’s negli-
gence, defis were justified in delivering the property.

HaAzMAN v. Hos. Land & Imp. Co. 50N. Y., 53.

It is the duty of a ferry company to so fasten its boat on landing, that horses
shall not have to step up to get off.

Injury to a passenger on a crowded ferryboat from a horse falling in an
endeavor to step up from the boat to the bridge is not a remote result of
the omission to lower the bridge to the level of the boat.

It is not negligence in a passenger on a crowded ferryboat to stand on the
stringer which separates the carriage and passenger ways.

Piff, passenger oni deft’s ferryboat, standing in a crowd on
stringer between passenger and carriage ways, injured by horse
falling while stepping from boat to bridge which had not been
lowered to level of. deck of boat, eight inches higher. Injury,
leg broken.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

Russet Mec. Co. v. N. H. Svs. Co. 50 N, ¥., 121.

Plff's goods, on deft’s wharf at journey’s end destroyed by
fire, originating on the wharf; deft had no apparatus for putting
out fires ; plff in habit of shipping by deft’s boats, and calling
for them on arrival of boat without notice from carrier of arrival.
Held, notice of arrival not necessary; also question of fact
whether deft negligent.
122 Cases ConpENsED, (1872.

 

Goopwin v. Batt. & Onto R.R. Co. 50 N. Y., 154.

Plff’s goods shipped over deft's road, arrived, notice of arrival
given plff as consignee; unloaded on wharf, he removed part,
not all; injured by rain. Meld deftsnot liable, custody trans-
ferred to plff.

WORSTER v. 42D AND GRAND ST. F. R. R, Co. 50 N. Y.203.

A street-car company, which maintains its track in a street, must see that
the street between the rails of its track is safe for passage.

In an action against a street-car company to recover damages resulting to
a passer-by from an unsafe condition of the street between the rails of its
track, the burden of proof is not upon the plaintiff to show that the
defendant had notice of its condition, either actual or constructive.

PIffs horse injured by stepping into hole in deft’s track; no
evidence that deft knew of the hole or that it had existed long
enough to imply knowledge.

(Nonsuit.—Aff. at Gen T. of Marine Court.—Rev. at Gen, T.
of Com. Pl., new tri. ord.—Aff. judg. absol. for plff.)

Price v. OsweGo & Syr. R. KR. Co. 50 N. Y., 213.

Deft without requiring evidence of identity delivered to a
stranger, goods which had been fraudulently ordered from
plff by such stranger in a fictitious name, and shipped in such
fictitious name. eld, deft liable.

Hrvsus v. Crry oF Lockport. 50N. Y., 236.

The duty of a municipal corporation, empowered to repair its streets, to
keep them in repair is a ministerial one, for a negligent omission to
perform which an action lies by a party injured thereby.

Piff fell at night in hole in deft’s cross-walk, in dangerous con-
dition long time, plainly to be seen; deft’s charter constituted
its common council commissioners of highways with power to
repair streets, cross-walks, etc., with power to raise funds and
assess for highway labor.

(Nonsuit.—Rev, at Gen. T. new tri. ord.—Aff. judg. absol.
for plff.)
1872.] Cases CONDENSED. 123

 

RatTHBun v. NortH. Cent. R. R. Co. 50 N, Y., 656.

The fact that a railroad company incorporated in another state has property
in this state and a managing agent and office herein, does not enable it to
claim the benefit of our statute of limitations.

PIff, passenger, injuredin accident due to negligence of deft ;
deft a Penn. corporation, had property in this State, and man-
aging agent with office herein ; accident occurred more than
6 years before bringing action; stat. of lim. pleaded: plff
demurred, dem. overrul. ; Gen. Term reversed order, sustained
demurrer, case then tried before court without jury.

(Finding $2,5co.—Aff. at Gen. T.—Aff.)

JOHNSON v. FRIEL. 50 N. Y., 679.

It is the duty of a public contractor when replacing the soil of a highway
to anticipate and provide for the natural effect of rain upon earth exca-
vated and replaced.

Piff's horses and carriage injured by driving into a hole in
street of a city ; deft public contractor, had contract with city
to construct sewer, had completed sewer portion of distance,
including place in question, refilled street, paved and apparently
restored it to former condition, two weeks before; hard rain
came, washed out hole where earth replaced; horses and
carriage fell in that night ; no guard nor lights.

(Verd. for Plff.—Aff. at Gen. T.—Aff. )

CARPENTER v. BLAKE. 50 N. Y., 696.

In an action against a surgeon for malpractice itis material whether at the
time he treated the patient he was or was not reputed to be, or was or
was not, a skillful surgeon.

CRAGIN vt. N. Y. Cent. R. BR. Co. 51 N. Y., 61.

PIff shipped hogs over deft’s road, he assuming risk of in-
juries from heat ; some of them died from effect of heat, result-
ing from deft’s negligence in not watering nor cooling them by
wetting. Held, deft not liable.
124 Cases CONDENSED. [1872.

 

FISKE ¢t. BAILEY. 51 N. Y., 150.

A keeper of a boarding house owes a duty to his boarders to keep the ap-
proaches to the rear part of the house safe for them to pass over, if they
cannot get in by the customary door.

Plff, a boarder in deft’s boarding house, fell into cistern on
premises first night, cistern under path around house, flagging
over it taken up, cistern left uncovered ; plff on returning went
first to door out of which she had gone, unable to gain access
to house by it, went round house to find another entrance fell
in. Injury, concussion of spine.

(Verd. $275.—Aff. at Gen. T.—Aff.)

BELGER v. DINSMORE. 51N. Y., 166.

In the absence of fraud, concealment or improper practice, the legal pre-
sumption is that an exemption clause contained in a receipt given for
express matter is known and assented to by the party receiving it.

Plff's trunk expressed, lost ; in deft’s receipt was a clause that
in case of loss, holder should not demand more than fifty dol-
lars at which article valued unless otherwise expressed.

ScHWERIN vt. McKig. 51 N, Y., 180.

Where a warehouseman relies upon burglary as an answer to the inference
of negligence arising from the non-delivery of goods stored with him, he
must make a case fairly warranting the inference that the goods were
lost in that way.

The means taken by other warehousemen to guard goodsstored with them
are not the measure of care which a warehouseman is bound to take.

The fact that a warehouse is a bonded warehouse does not relieve the
warehouseman of the duty of taking proper care of goods stored init.

 

Irvine tv Woop. 51 N. Y., 224,

The fact that a person, who uses an improperly constructed coal hole in a
sidewalk, is a tenant of the building to which it belongs, ignorant of the
defect, does not excuse him from liability toa passer-by for damage result-
ing therefrom.

Plff fell into a coal hole in sidewalk in front of house leased
by defts; cover was smooth cast iron plate lying flat on pave-
1873. ] Cases ConDENSED. 125

 

ment without any fastening, plff stepped on its edge, turned
under his foot; deft’s evidence to prove that the cover was de-
fectively constructed, that they were not aware it was out of
order, excluded ; it appeared that they used it. Injury, to knee-
joint, &c. ,

(Verd. $5.500.—Aff. at Gen. .T.—Aff.)

WHITAKER v. Eigutu Avy. R. R. Co. 51 N. Y., 295.

That law of the road in the Revised Statutes, making owners of vehicles
for transportation of persons on public highways liable for all damages
occasioned by the willful act of their drivers, does not apply to owners of
steet cars, running on tracks.

Declarations of a servant, after an accident and not accompanyingit, are not
admissible against the master.

PIff, injured by deft’s street car, willfully driven against him ;
declaration of the driver after car had passed on, showing will-
fulness admitted. Injury, wrist broken, knee bruised, causing
Open sores.

(Verd. $2,500, exc. at Gen. T.—Exc. overrul. at Gen. T.
Judg. on verd.—Rev. new tri. ord.)

WHITEHALL TRANSP. Co.v. N. J. STEAMB, Co. 51 N, Y., 369.

Rule in Hoffman case 47 N. Y., 176, followed.
The value of the use of an injured article lost while it is being repaired isa

proper item of damage.
Interest on the amount spent in repairing an injured article is a proper item

of damage.

Piff’s canal boat in tow by its propeller, latter having no lights
as required by law, was sunk by deft’s steamboat on a moon-
light night; steamboat sighted the tow two miles off, collision
occurred through sudden sheer of deft’s boat tothe east; among

‘items of damage was value of use of boat during time spent on
repairing her, also interest on cost of repairs.

(Verd. for Plff.—Aff. at Gen. T.—Aff. )
126 Casres CONDENSED. [1873.

PALMER vt. HOLLAND, TrEAS. AM. Exp. Co. 51 N. Y., 416,

An express company, which undertakes to present to the maker a prom-
issory note for payment, ata place beyond its own line without informing
the holder that its line does not extend to such place, is liable for dam-
ages, resulting to the holder from the neglect to presentit of anothercom-
pany to which it has delivered the note for the purpose of carrying out its
contract with the holder, :

LOsEE v. BUCHANAN. 51N. Y., 476.

A person operating on his own premises, without negligence, asteam boiler,
is not liable for damages to adjoining property from its explosion by rea-
son of a defective construction of which he had no knowledge or notice.

Plff’s building damaged by explosion of boiler on adjoining
premises, belonging to corporation of which defts were trustees
and agents, no negligence in its operation’ was proved; court
charged in effect that defts were responsible for any defects in
the construction of the boiler which they knew or ought to have
known and for any negligence in the use of the boiler which
could be attributed to them,

(Verd. for plffi—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
for deft.)

LOsEE v. CuuTE. 51N. Y., 494.

Manufacturers of steam boilers owe no duty to the public to construct their
boilers properly.

Plffs building damaged by explosion’on adjoining premises °
of a boiler, improperly constructed by defts out of poor iron;
defts knew it was to be used by its purchaser near dwellings
and stores in a village; tested by purchaser, accepted, used
for three months prior to explosion, during which time defts
had nothing to do with it. ,

(Nonsuit.—Aff. at Gen. Term.—Aff. )

UNGER v. 42D AND Gr. St. F.R.R.Co. 51 N, Y., 497.

A street car company is no more bound than any other owner of vehicles
to adopt in the construction of its cars the best methods which human

skill and ingenuity have brought into use to prevent accidents to pedes-
trians.
1873.] Cases CONDENSED. 127

 

Where the defendant’s explanation of an accident, which, if true,
exculpates it from the charge of negligence, is not improbable, is proved
by a disinterested witness, and is uncontradicted, it is the duty of the
court to direct a verdict for the defendant.

Piff passing along street, run over by deft’s horses broken
loose from its car; car had stopped to take on passengers, two
drunken men passed in front, struck one ofthe horses, pulled
reins out of driver’s hands, horses backed, got loose, ranaway;
hook by which whiffle-trees attached to car broken, but not so
as to impair its usefulness, nor was it shown that,this defect
contributed to horses getting loose ; it was shown that if a pin
had been used to keep the whiffle-trees in the hook, they would
not have slipped off; whiffle-trees attached in the usual way ;
the evidence as to cause of horses’ fright given by the driver
anda policeman. Injury, ankle broken.

(Verd. $5,000, new tri. ord, at Spec. T.—Order Aff. at Gen.
T.— Affi. judg. absol. for deft.)

Diveny v. Ciry oF Exmirna. 51N. Y., 506.

Plff, walking along plank sidewalk in deft’s street, loose plank
sprang up, tripped him ; deft’s charter made it duty of its com-
mon council to make and repair its streets and walks. Injury
to private parts and abdomen.

(Verd. $1,c00,—Aff. at Gen. T.—Aff.)

Rule in Hutson, Conrad and other cases followed.

EATON v. ERIE Ratbway Co. 51N. Y., 544.

Whether it is negligent for a traveler to go over a crossing behind a train
whose locomotive is a long way off, after he has been advised that the
train may back at any moment and he has stopped a while to see if it
does, is a question of fact.

Plff’s horse and wagon injured at deft’s crossing in city street ;
he had stopped; a brakeman, not appearing to be such, had cau-
tioned him that a train standing near might back up at any
time ; he waited a few minutes, then started, while leading his
horse across train backed; locomotive 1000 feet off, conflict as to
whether whistle was blown, bell was not rung ; court refused to
128 .Cases CONDENSED. [1873.

 

charge that if whistle was blown and plff was advised not to
pass, the deft not liable.
(Verd. for Plff.—Aff. at Gen. Term.—Aff. )

 

Mownrey v. CENTRAL City Rattway. 51 N. Y., 666.

Whether it is negligence in a boy to attempt to board the front platform of
a moving street car, in obedience to orders from some one at the rear is
a question of fact.

Plff, boy of 13, attempted to board moving street car in front,
ordered to get on at rear, went, ordered by some one to go to
the front, doing so, slipped on snow bank, fell under car; leg
crushed.

(Nonsuit.—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
agst. deft.)

DELAFIELD v. UNION FERRY Co. 51 N. Y., 671,

Plff’s canal boat, about sundown, no light on it, being drawn
across deft’s ferry slip as its boat left opposite slip, run into by
latter boat, which paid no attention to cries of boatmen, light
enough to see it.

(Verd. for plff._—Aff. at Gen. T.—Aff.)

Rule in Hoffman case followed (47 N. Y., 176).

WYCKOFF v. QUEENS Co. Ferry Co. 52.N. Y., 32.

Plff’s horse and buggy, in his own care on deft’s ferryboat,
horse frightened by whistle to start, rushed forward, chain at
end of boat either not up or an insufficient guard, horse and
buggy went overboard.

(Verd. for plff.—Aff. at Gen. T.—Aff.)

Rule in Clarke v. Union F, Co. followed (35 N. Y., 485).

Note,—Court of Appeals overrule the ground on which the Gen. T. af-

firmed, that a ferry company is chargeable as a common carrier for absolute
safety.
1873. ] Casrs ConpENSED, 129

 

McANDREW v. WHITLOCK. 52 N. Y., 40.

Plffs goods shipped by deft’s steamer, arrived, goods perish-
able, had to be discharged on a fine day, deft was so notified,
arranged with consignee to be discharged on a day certain, if
fine ; day rainy, consignee not on hand, but deft went on dis-
charging, goods injured. edd, deft liable.

Macrnis v. N. Y. Cent. & Hup. R. R. R. Co.
52 N. V., 215.

A train approaching a crossing so slowly that its motion is imperceptible is
to be considered as stationary for the purpose of determining whether a
person is negligent in crossing ahead of it.

To back a train through a public street at night without a light at the rear,
or giving some warning of its movement, is negligence.

Tostart up suddenly, without warning, a train slowly moving through a
public street at night without a light is negligence.

Piff’s intestate killed at deft’s crossing; train backing down
track in a street so slowly that just before she started to cross
no motion was perceptible ; as she was crossing, brakes releas-
ed, steam applied, train sprang back, struck her; night, no light
at rear of train, no warning of starting up.

(Verd. $3,500.—Rev.} at Gen. T. new tri. ord.—Rev. judg. ord.
on verd.)

 

’

TorreN v. Poiprs. 52 N, Y., 354.

Whether it is negligent for a person familiar with premises, in which there
is a hatchway usually closed at a particular hour, to go upon the same
after that hour in the dark without a light, is a question of fact.

It is negligent for a landlord to leave opeh over night a hatchway in the
hall of his building which is usually closéd.

Plff’s intestate killed by falling at night about nine o'clock
through open hatchway in hall of deft’s building, of second
floor of which he was tenant; deft’s habit was to shut hatchway

about six o’clock.
(Verd. $5,000.—Aff. at Gen. T.—Aff.)
130 Cases CONDENSED. (1878.

 

DRAKE v. GILMORE. 52 N. Y., 389.

Under Death Act, amendment of 1870, which excluded pend-
ing actions, upon an accounting in Surrogate’s Court by an
administrator who had collected damages for the negligent killing
oftheintestate, prior to amendment of Death Act, (chap. 78, laws
of 1870), husband claimed to share therein as next ofkin. Held, the
amendment gave him no status, as it excluded pending actions,

WARNER v. N. Y, Cent. R. R. Co. 52 N. Y., 437.

Piff thrown out of carriage and injured by deft’s train at cross-
ing ; whether bell rung and whistle blown was disputed. In-
jury, thigh bone fractured, abdomen ruptured.

(Verd. at first $6,000, and shanged by jury after being polled
to $7,000.—Aff. at Gen. T.— Aff.)

NoTr.—The question discussed by the court was as to right of jury to
change verdict after having separated upon agreeing on a sealed verdict.)

Raynor v. SELMES. 52 N. Y., 579.

A puaintiff in an action to foreclose a mortgage, whose negligence in omit-
ting to make the owner of the equity a party necessitates a resale of the
premises, must pay the expenses of such resale,

FaRuey v. McConneuu. 52 N. Y., 630.

Piff’s intestate, boy of 5, fellin sewer left unguarded, defts
contractors building it.

(Verd. $500.—Aff. at Gen. T.—Aff.)

Rule in Ihl case, 47 N. Y., 317, applied.

 

TrnnEY v. Boston & Aus. BR. R. Co. 52 N. Y., 682.

The facts that a regular employee is absent, and his place is supplied without
the master’s knowledge by another employee whose knowledge of the
other's duties is not so great, are not sufficient to warrant an inference of
negligence in the master in providing an incompetent servant, or in fail-
ing to provide enough servants.
1873. | Cases CONDENSED. 131

Plff’s intestate fireman, engine engaged in hauling freight cars
into deft’s yard, performed one trip switches right, went off for
more cars; on return ran off track, switch misplaced while gone,
regular switchman absent, place taken by man employed about
round house without knowledge of deft’s agent, had acted as
switchman before; no evidence was incompetent, he did not
know of displacement of switch.

(Nonsuit.—Aff. at Gen. T.—Aff.)

 

WAFFLE v. N. Y. Cent. R. R. Co. 53 .N. Y., 11.

An owner of land upon a water course may by means of ditches collect the
surface water on his premises and discharge it into the stream.

HAMILTON v. THIRD AVE. R. R. Co. 53 N. Y., 25.

PIff passenger, ejected improperly, but in good faith. Court
charged, exemplary damages might be awarded. Held, nota
case for exemplary damages.

(Verd. $500.—Aff. at Gen. T.—Rev. new tri. ord.)

ATLANTIC Dock Co. v. THE Mayor. 53 N. Y., 64.

A cause of action ex delicto is not extinguished by the recovery and satisfac-
tion of a judgment, for the full amountof the damages claimed, against a
stranger, in no wise joined in liability with defendant.

NotE.—This case is only inserted because of its possible bearing-—in con-
nection with that of same plff agst. City of B’klyn, 3 Keyes, 444, for same
injury—upon the question of former recovery in negligent cases, Being
a case sui generis, it might not be easy to find at need. And see note to
Littlewood v. The Mayor, 89 N. Y., 24.

KNOWLTON v. Prov. & N. Y. 8.8. Co. 53 .N. Y., 76.

Plff's goods destroyed by fire, through deft’s negligence, deft
libeled ship under Act of Congress of 185 (9 Stat. at Large, 635),
limiting liability of ship owncr where loss not caused by his

iesiyn or neglect,‘and then «' ‘aiy-d injunction in U. S. Court
132 Casrs CONDENSED. [1873.

 

agst. plffs proceeding in this case. Motion in that suit by plff
to vacate injunction denied; deft obtained in this case order
staying plffs proceedings herein. Held, error; also, plffs not
estopped by their motion in U. S. Court to vacate the injunction
from questioning in this case its validity.

WYLDE v. NORTHERN R, R. Co. oF N. J. 53 N.Y., 156.

It is negligent for a railroad company to bring its trains to a stop at a depot
so suddenly as to throw passengers off their balance.

It is not negligent for a passenger, when a train is nearing a depot, to rise
from his seat before it stops, so as to prepare for leaving it.

Where two companies are jointly interested in running a train, both are
liable for the damages occasioned by its negligent management.

Plff, passenger on train run in interest of both deft companies,
train had entered depot, locomotive detached, cars struck bumper
atend of track with such force as to throw plff down, he having
risen from his seat to button his coat preparatory to leaving,
standing waiting for train to stop. Injury, ribs broken, back
injured.

(Verd. $15,000.—Aff. at Gen. T.—Aff.)

Minor v. N. Y. & N. H. BRB. R. Co. 53 N. Y., 363,

Piffs baggage destroyed by fire while in possession of a con-
necting road in another state, deft a corporation of such other
state had obtained permission of our Legislature to extend its
line into this state ; had sold plff a ticket with two coupons, one
over its own road, and the other over the connecting road,
trains not continuous. By laws of deft’s home state contract
for carrying passengers beyond line of its road ulira wires,
Held, deft bound in this state, without reference to its liability
in other state, but not liable in this case, because it acted only
as agent of other road.

LANDERS v. STATEN IsLAND R. R. Co. 53 N. Y., 450.

Action for damages to a passenger killed by steam boiler ex-
plosion on ferryboat; only question one of jurisdiction of city
court of Brooklyn.

(Verd. $5,000.—Aff. at Gen. T.—Rev. compl. dism.)
1873. ] Cases CoNDENSED. 133

 

FLIKE v. Boston & AuB.R. BR. Co. 53 N. Y., 549.

A railroad company owes a duty to its servants to have its trains suffici-
ently manned when started.

Plff’s intestate, fireman on deft’s freight engine killed in colli-
sion between it and some cars of a freight train ahead, cars had
broken loose and run back on a heavy grade; accident due to:
dispatching the train from its starting point without a sufficient
number of brakemen; one of the crew had overslept himself,
andthe train had been sent off in disobedience of aruleasto the
number to go out with each train. ;

(Verd. $5,000, exc. to be heard at Gen. T.—Exc. overru. at

- Gen. T. judg. ord. on verd.—Aff.)

Note.—In 80 N. Y., p. 53, Andrews]. says, ‘‘ the rule of the Flike case was
that a railroad company is bound to see that its trains are sufficiently
manned when started.” In 73 N. Y., p. 42, the rule was said tobe, “Itis
negligent to start a train without sufficient help.”” In deference to these
expressions, the rule is quoted as stated in the head-note, and nothing is

‘said about the liability of the master for a servant’s disregard of his rules,
as it might conflict with other cases. See note to the Booth case.

BIuLus v, N. Y. Cent. R. R. Co. 53N. Y., 608.

Same questions substantially as in Penn. v, B, & E. R. R. Co.
49 N. Y., 204.

WELCH v. N. Y. Cent. R. R. Co. 53.N. Y., 610.

PIff's intestate killed at deft’s crossing; whether guilty of con-
tributory negligence held to be a question of fact.
(Verd. $3,500.—Aff. at Gen. T.—Aff.)

KESSEL v. BUTLER. 53 N. Y., 612.

An improperly constructed platform in a sidewalk is a nuisance notwith-
standing its approval by the city authorities.

Evidence of the amount of an injured person’s earnings prior to his injury
is admissible on the question of damages.

Plff, passer-by on sidewalk, night, ran against improperly
constructed platform on the sidewalk, erected by deft in front
of her premises ; evidence that the street commissioner gave
134 Cases CONDENSED. (1873.

 

her permission to erect the platform and approved of it after-
wards excluded; evidence as to how much plff made at his
trade prior to injury admitted. Injury, shoulder blade dis-
located. 7

(Report $500.—Aff. at Gen. T.—Aff.)

Hackrorp v. N.Y. 0. & H.R. BR. RB. Co. 53 N. Y., 654.

Where the alleged facts claimed to constitute contributory negligence de-
pend on the credibility of witnesses, or on inferences to be drawn from
circumstances as to which men might well differ, it is a question of fact
whether the injured person was negligent.

In cases of nice distinctions, where the question of contributory negligence
was submitted to the jury, and its verdict has been sustained at the Gen-
eral Term, the burden is on him whoalleges error to show it with reason-
able certainty. :

Piff's intestate, killed by train at deft’s crossing, the issues,
whether the bell was rung, whistle sounded and deceased guilty
of negligence, depended on conflicting testimony and involved
nice distinctions. The opinion substantially lays down the
rules given above.

(Verd. $2,500.—Aff, at Gen. T.—Aff.)

NotEe,—The truisms in the head notes are only inserted because the case
may prove valuable as a precedent in a similarly close case.

SPOONER v. BROOKLYN Orry R. R.Co. 54 N. Y., 230.

It is not negligent for a passenger to ride on a part of the vehicle where
there is more danger of an injury, if the carrier is in the habit of allowing
passengers to ride there.

Plff, passenger, standing on foot-board at side of deft’s sleigh,
where passengers were allowed to ride when sleigh was full,
injured by collision with another sleigh, collision could have
been avoided by due care on part of deft’s driver.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

BELTON v. Baxtur. 54 N. Y., 245,

It is negligent for a person to attempt to cross a street ahead of two vehi-
cles moving at different rates of speed, upon nice calculations of chances.
1873. ] Cases CONDENSED. 135

 

PIff undertook to cross a city street in front of a rapidly
moving street car, and a still more rapidly moving cart of deft;
he calculated he could cross in front of car, before cart got up;
miscalculated, after had passed the horses of the car he was
struck by deft’s horse or cart, its driver not having been able to
see him on account of the car. Injury, three ribs broken.

(Verd. $1,000—Aff. at Gen. T.—Rev. new tri. ord.)

SEYBEL v. NATIONAL CURRENCY Bank. 54 N. Y., 288.

While the negligence of a purchaser for value of unmatured negotiable
paper may be so gross as to be evidence of bad faith, it is not of itself
sufficient to defeat his title.

ANDERSON v. ROME, WATER. & OG. R,R. Co. 54.N.Y., 334.

Where after an accident a servant of the defendant puts out of the way an
incriminating bit of evidence, it is not admissible to prove the reason he
gave for so doing.

PIff, passenger, injured by train running off track, due to break-
ing of rail, flaw discoverable by proper inspection ; on cross ex.
of deft’s foreman, who had been called to testify to good condi-
tion of track and had not discovered flaw, he said one of deft’s
workmen 6 months after the accident had told him that he had
thrown away the piece of rail containing the flaw; the witness
was then compelled to state the reason which the other gave
for so doing, viz., he thought he might as well put it out of the
way; deft called this employe who said he had done so, but that
noone told him to doso. Injury, spine and head injured, com-
pletely paralyzed and helpless and sight and hearing impaired,
also senses of touch, taste and smell.

(Verd. $12,500.—Aff. at Gen. T.—Rev. new tri. ord.)

BROOKS v. SCHWERIN. 54N. Y., 343.

Whether a person crossing a street at night with some precautions is careful

enough isa question of fact.
Whether a person driving along a street at night at six to seven miles an

hour is negligent in so doing is a question of fact.
136 " Cases ConpeENszD. [1873.

 

Where a married woman, who takes charge of her family, earns money in
addition by days work away from home, it mav be taken into account in
estimating the damages she sustains through another’s negligence.

Plff, while crossing street at night run over by deft’s rapidly
driven horse and wagon ; she had started to cross street ahead
ofa car, but on nearing the track, thought there was not time,
stopped to let car pass, looked up and down street saw no
vehicles: just as car passed, she was about to move on, deft’s
wagon came up from same direction; plff a married woman,
took charge of her family at home, worked out in day time,
earning $1.25 per day ; court refused to charge, that plff could
not recover for value of her time and services as belonging to
husband. Injury, 6 ribs broken and splintered, back injured,
causing a tumor.

(Verd. $1,000.—Aff. at Gen. T.—Aff.)

LAWRENCE v. AM. Nav. BK. 54N. Y., 432.

The negligence of a person in making a payment under a mistake of fact
does not defeat his action to recover the money so paid.

Or,

Ina suit torecover money paid under mistake of fact the negligence of the
plaintiff in making the mistake is no defense.

GILLESPIE v. Ciry or NewBuren. 54N. Y., 468.

A traveler while seeking to avoid an accident from a known cause is not
held to as high a degree of watchfulness as usual for unknown defects in
the highway.

PIff, driving a horse, which had never been near an engine,
at railroad crossing came in sight of one, stopped to see if it
would cross the street or back on switch, horse grew excited,
plffhad to turn, cramped his wagon to right in order to turn horse
to left away from engine, it went through a break in guard-rail,
felldown an embankment on road-side; he was prevented by his
wagon-top from seeing that guard-rail was broken, but could
have discovered the fact if he had turned round in his seat, or
put his head out and looked round. Injury, leg broken.

(Verd. $1,240.—Rev. at Gen. T. new tri. ord.—Rev. judg.
ord. on verd,)
1873. ] Cases CONDENSED. 137

 

Moopy v. Osaoopv. 54 N. Y., 488.

The proposition, that if the evidence is equally consistent with the absence
as with the existence of negligence in defendant, the plaintiff can not re-
cover, is simply the same as the proposition that the burden of proof is
on plaintiff.

So long as a person when crossing a street looks up and down it, it is im-
material whether he knows it is a street on which fast driving is indulged.

Plff, about six o’clock at night alighted from a street car on
an avenue where fast driving was indulged in, looked up and
down it, saw no vehicles, started for sidewalk, knocked down
by deft’s sleigh, which had turned into the avenue four blocks
off, together with another sleigh, both going at three minute
gait; after charging the jury correctly as to the burden of proof,
and as to negligence of either side, the court refused request of
deft, if the evidence of the case is equally consistent with the
absence of as with the existence of negligence in the defendant
plff can not recover; also, that from the place of plff's residence
and her going up and down in said cars the jury had a right to
presume that she was acquainted with the rate of speed at which
vehicles were accustomed to travel on that part ofthe ave. In-
jury, eye-brow lacerated, side bruised, shock.

(Verdict $2,500.—Aff. at Gen. T.—Aff.)

Convict v, GRAND Trunk R. R. Co. 54N. Y¥., 500.

Plff's goods destroyed by negligent fire in deft’s depot at end
of its line, while awaiting transhipment over other roads, deft
had contracted to ship them through, but did not do so because
if would not submit to demand of other roads for increased
compensation. Shipping contract contained clause exempting
deft from loss by fire, and also for losses beyond its own line.
Held, deft liable. g

ELMORE v. SanpDs. 54N. Y., 512,

PIff ejected from train by deft a conductor, had bought ticket
on which printed ‘‘good this date only,” and date stamped;
kept ticket several days, then attempted to use it, refused to pay
fare, put off. Held, rightly so.
138 Cases CONDENSED. [1878.

 

Cuark v. Mituer. 54N. Y., 528.

A supervisor of a town who neglects to present to the county board of
supervisors a property owner’s claim for damages assessed for laying out
a highway through his land must himself respond in damages.

”

McCaut v. N. Y. Cent. R. RB. Co. 54N. Y. 642.

Where a person with knowledge of the proximity of various railroads,
allows his driver to drive rapidly in a covered vehicle, without taking any
precautions or thought as to railroad crossings, he is negligent.

Piff's intestate thrown from a carriage, struck by engine at
deft’s crossing near Buffalo, killed ; deft’s negligence conceded;
track crossed the road at an acute angle, train and carriage
going same direction, driver and deceased lived within a few
miles, knew there were railroads all about, not aware of this
crossing, did not know how near to it, covered carriage, driving
about eight miles an hour, not thinking of railroad, heard
rumbling sound, did not know whether it was the falls, looked
round, saw nothing, saw track within few feet, slapped horses
with reins, they started across track on gallop, first knew of
train being near on striking of the carriage by the engine, when
first saw track so near could not stop before crossing.

(Verd. $4,000.—Aff, at Gen. T.—Rev. new tri. ord.)

Hoven v. N. Y. Cent. BR. R. Co. 54 N. Y., 662,

Plffs poultry not transported with diligence from Syracuse
to Albany, frozen and thawed, evidence allowed of condition on
arrivalin N. Y. as tending to show its condition {a Albany six
days before, also market price in N. Y. at date nf /ts urrival three
days late in Albany. Held, proper.

Putnam v. Bway & SEVENTH AVE. R. R. Co. 55 N.Y., 108.

The fact that a passenger may have drunk to excess will not in every case
justify his expulsion from a public conveyance.

A common carrier is not liable for the damages inflicted upon one passenger
in an assault by a drunken passenger, where it was not committed under

such circumstances as to fairly forewarn the carrier of its likelihood.
Or,
1873. } Cases ConDENSED. 139

 

It is not negligent in a common carrier to fail to protect a passenger from
an assault by a drunken passenger, where there was nothing to excite
suspicion that the assault would be made.

Pliffs intestate, passenger, after alighting from deft’s car, and
while assisting others to do so, was killed by another passenger,
who, being drunk, had insulted him in the car, but had subsided
into quietness on the order of the conductor, and remained so
for a long distance, but when deceased left the car, jumped off
to make the assault.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

 

Nat. BK. oF Com. v, Nat. MercH. BK. Ass. 55 N. Y., 211.

Money paid under a mistake of fact may be recovered, however negli-
gent the party paying may have been in making the mistake, unless
the payment has caused such a change in the position of the other party
that it would be unjust to require him to refund.

HuGuHes v. MERCANTILE Mot. Ins. Co. 55 N. Y,, 265.

Where a person applies for insurance on one vessel and the insurer insures
another, the mere negligence of the insurer’s agent in not discovering
which was the vessel sought to be insured will not charge the insurer
with a liability for an insurance which he did not in fact make,

CHAPMAN v. ERIE RaItway Co. 55 N. Y., 579.

A master has the right to rely on a presumption of continuance, as to the
good character and proper qualifications once existing in his servant,
until he has notice of a change, or of facts which should put him on

inquiry.

Plff’s intestate, engineer of deft, killed through the negligence
of train despatcher, who, competent when employed, had
become incompetent through drink, this known to the superin-
tendent ; court charged, ‘‘if after a competent person is em-
ployed for such a duty, his habits become such that it is unsafe
to trust him any longer in that capacity, the company are bound
to use through the proper officers, such reasonable care and
diligence in ascertaining what the man is, after heis employed,
as they would be in his original employment.”

(Verd. $5,752.47.—Aff. at Gen. T.—Rev. new tri. ord.)
140 Cases CONDENSED. {1873.

 

HornaGue v. N.Y. C. & H.R, BR. BR. Co. 55 N, Y., 608.

‘When a work is being done by a contractor under contract, the other party
agreeing to furnish the necessary appliances, a deficiency in the number
of the appliances is not the proximate cause of an accident due to a negli-
gent use of the appliances occasioned by such deficiency.

Plff's intestate, carpenter of deft, killed by falling arch in
culvert, was removing one of the centers before sufficient time
given to mortar to set, removal made under orders of deft’s
foreman of carpenters, who, when the culvert was partially
done, in order to move the centers forward, so as to proceed
with the work, was requested to remove them by the contractor,
who was building the culvert under contract with deft, the latter
furnishing the centers, which it was claimed were not suf-
ficient in number.

(Verd. $2,600.—Aff. at Gen. T.—Rev. new tri. ord.)

PLOEDTERLL v. THE Mayor &c. or N. Y. 55N. Y., 666.

PIff injured by falling in the dark over a stone stretching half
across deft's sidewalk, placed over a hole in a culvert in the
street and left for some months in that position. Injury, leg
broken. :

(Verd. $5,000,—Aff. at Gen. T.—Aff.)

(No rule can be extracted from this case, because there was no exception
to raise the point sought to be urged as ground of error.)

DouGaAN v. CHAMPLAIN TRANSP. Co. 56 N. Y., 1.

The cause of action given by the Death Act of this state is not, in the case
of a maritime tort, one of exclusive admiralty jurisdiction.

The act of Congress limiting the liability of ship owners to the value of the
ship and freight does not deprive the courts of this state of jurisdiction
to try a cause of maritime tort.

Omissions to enclose a space between the gangway railing and deck of a
steamboat is not negligence, where the steamboats in that locality have
been so constructed for years, and no accident on account thereof ever
befell before, or was apprehended.

Evidence that a defendant after an unforeseen accident changed arrange-
ments, which had made the accident possible, is not admissible to prove
negligence in allowing them to be as they were.

Plffs intestate, passenger on deft’s steamboat on Lake
Champlain, came through door on deck, gust of wind blew off
1874. ] Cases CONDENSED. 141

 

hat, tried to recover it, deck icy, slipped, fell, rolled through
open space under railing across gangway, drowned; railing 3
ft. high, supported by stanchions in centre, space under railing
and for 4 ft. each side of stanchion open, railing and stanchion
in position for traveling, nothing out of order, boats built this
way usually, run for many years, no such accident occurred
before or ever thought of ; evidence that after the accident the
space was boarded up excluded.
(Nonsuit.—Aff. at Gen. T.—Aff.)

CLEGHORN v.N. Y.C.& H.R. R.R.Co. 56 N. Y., 44.

Evidence that an act of negligence was reckless and of a criminal nature is
relevant on the question of exemplary damages.

An award of exemplary damages is not to depend on the jury’s view of a
defendant’s conduct, but upon the fact whether that conduct has been of
such nature as to make such an award permissible.

Piff, passenger injured through negligence of deft’s switch-
man; evidence was admitted that he was at the time intoxi-
cated, was of intemperate habits, this was known to the station
agent, who had authority to discharge him ; court charged that
the jury were at liberty to award exemplary damages as they
thought the case called for, depending on the conduct of deft.
Injury to back and chest.

(Verd. $10,000.—Aff. at Gen. T.—Rev. new tri, ord.)

CoUGHTRY v. GLOBE WOOLLEN Co. 56 N. Y., 124.

He who furnishes a structure to a contractor for use on his own premises,
owes a duty to the contractor’s employees who are to use it, to have it
properly constructed.

Plffs intestate working on a scaffold, in the employ of a con-
tractor, who was putting a new cornice on deft’s wall under a
contract which required deft to furnish scaffold if necessary ,
was killed by its fall, scaffold negligently constructed by
deft.

(Nonsuit —Aff. at Gen. T.—Rev. new tri. ord.)
142 Cases CONDENSED. [1874,

 

CLANCY v. BYRNE. 56 N. Y., 129.

Ifa landlord lets premises in good order and does not obligate himself to
his tenant to keep them so, he does not owe any duty to any one else to
do so.

The fact that a person, who as to the actual dtcupant of premises, isa land.
lord under no duty to make repairs, is himself a tenant under an obliga.
tion to his own landlord to make repairs, imposes upon him no duty to
any one else to do so.

Or,

A tenant of premises under obligation to his landlord to keep them in good
repair, who has sub-let them in good order to a sub-tenant, without
obligating himself to keep them so, owes no duty to any one but his own
landlord to keep them in repair.

Plff’s horse fell through rotten plank in pier leased by defend-
ant from owner several years before, and at once re-let by him
to a tenant who was in possession at time of accident; deft had
agreed with his landlord to make ordinary repairs such as
patching, his landlord to make repairs of extraordinary nature,
such as fe-planking whole of pier; it did not appear that
deft had agreed with sub-tenant to keep pier in repair; there
was no evidence that the pier was dangerous at time let to
deft and by him sub-let to sub-tenant,

(Verd, for Plff_—Aff. at Gen, T.—Rev, new tri, ord.)

CHAPMAN v. Rose. 56 N. Y., 137.

Negligence of a purchaser of commercial paper for value, however gross, is
not sufficient to deprive him of the character of a dona fide holder.

As against a dona fide holder of commercial paper, it is not enough for the
maker to show fraud and that he did not know what he was signing, with-:
out going further and showing that he was not guilty of negligence.

MAGNIN v. Dinsmore. 56 N. Y., 168.

PIff’s express matter worth $1, 5v0, shipped over deft’s line, box
shown to have been picked up empty some months after ship-
ment, no explanation of non-delivery given, receipt contained
clause of exemption against various risks, but silent as to deft’s
negligence, also clause deft not liable for over $50 if value not
stated ; no value was stated. Held, question of fact whether
deft negligent, and if negligent, the $50 clause did not apply.
1874. ] Cases CONDENSED. 148

 

GLEADELL v. THomson. 56 N. Y., 194.

PLff sued for freight on goods shipped by his vessel, bill of
lading contained clause of exemption from liability for negli-
gence of pilot, master or mariners, goods discharged on plff’s
pier, consignee notified, proceeded to protect goods from storm
by tarpaulins, one of which was forcibly taken from him by
piffs agent. edd, plff liable on counterclaim for damages.

POLLETT v. Lone. 56 N. Y., 200.

Where an injury would have been the result of negligence, without the aid
of an intermediate concurring cause, the existence of such an interme-
diate cause does not operate to make the first cause a remote one.
Action to recover damages consequent for breaking of two

dams resulting from the breaking of deft’s dam situated further

up same stream, which was out of repair, and unable to with-
stand the force of a freshet, which was expectable; court
charged as to the lower dam, to the effect that plff could not
recover for damages to it, if the breaking of the intermediate
dam concurred with the breaking of deft’s dam in causing such
lower dam to break, on the ground that an intermediate cause
had concurred in effecting the result.

(Verd. for deft new trial at Spec. T.—Rev. & judg. on verd.
ord. at Gen. T.—Rev. ord. for new tri. aff.)

See note to O’Neil case, 115 N. Y., 579.

TOWNSEND v.N. Y.C.& H.R.R.R.Co. 56 N. Y., 295.

A master is not liable for exemplary damages for an act of his servant which
would not subject the servant to such damages if the action were against
him.

Ifa passenger is obliged to take two trains to reach his destination, he is
not exonerated from an obligation to produce a ticket on the second train
or pay his fare, even though the conductor of the first train has
improperly taken from him his through ticket.

(Verd. $500.—Aff. at Gen. T.—Rev. new tri. ord.)

MorRIson v. ERIE Ratwway Co. 56N. Y., 302.

Where a person, balancing an expectable danger against an actual incon-
venience, decides to run the risk of the former, he can not visit the conse-
quences upon him whose negligence caused his dilemma,

The negligence of the father must be imputed to a child, where he is
carrying it, when the accident hapfens
144 Cases CONDENSED. [1874.

 

Plff, passenger, girl of 12, her father took her in his arms,
jumped from train, after it had negligently started up from a
station without giving passengers time to alight; he fell, her
foot crushed ; he had had time to deliberate what to do, on the
train starting up. Injury, foot broken and crushed.

(Verd. $500,—Aff, at Gen. T.—Rey. new tri. ord.)

Notre.—Attention should be called to the skillful way in which this case
and the Filer case are handled in opinion of Folger J., at p. 306,

The opinions in these cases show that the fundamental principle on which
many negligence cases practically rest is, that the foresight of a person
in a dangerous emergency is passed on by the aftersight of twelve men ina
safe box, or of seven men on a dignified bench.

They show, that if the seven men are certain, then the question
of the negligence of the injured person is one of law, to be determined by
them. If they are doubttul, it is a question of fact which ought to have
been determined by the twelve other men.

 

JAFFE v, HARTEAU. 56 N. Y., 398.

A landlord who is ignorant of the unsafe condition of a boiler in premises
let by him, is not liable for the damages resulting from its explosion.

Plff injured by explosion of boiler in her kitchen, part of
premises rented by her husband from deft’s tenant; deft had
built the house, had no knowledge or reason to suspect that
the boiler was improperly constructed ; explosion claimed to be

due to lack of a safety valve.
(Nonsuit.—Aff. at Gen. T,—Aff.)

 

Kissinerr v. N. Y. & HARLEM R. R. Co. 56 N. Y., 538.

If a railroad company does station a flagman at a crossing, travellers have
the right to assume that they may safely cross, when he fails to warn
them not to cross,

PIff struck by deft’s locomotive at street crossing, backing
down, obscured by box cars on side track, flagman failed to
warn plff; bell not rung. Injury, bruised on head and body
and loss of horse.

(Verd. $993.—Aff. at Gen. T.—Aff.)
1874, }- Cases CONDENSED. 145

 

Cou.ter v. Am. Mmrcu. Un. Ex. Co. 56 N, Y., 585,

Driving rapidly on sidewalks is not allowable.
It is not negligent{for a person, in endeavoring to escape immediate
danger, to act instinctively and without calm deliberation,

Piff injured by striking her head against the wall of a building,
jumped out of way of deft’s horse and wagon, driven rapidly
up behind her on the sidewalk; she sprang away without look-
ing to see whether she really was in danger ; court charged that
if it appeared that horse and wagon was so distant that she had
time to look around without jumping she was bound to do so,
but if they were so close that she had no time, and instinctively
jumped on side to avoid immediate danger, she was justified in
so doing. Injury to face.

(Verd. $175.—Aff. at Gen. T.—Rev. new tri. on a question of
evidence, the correctness of the charge being upheld.)

PIPER v. N. Y.C. & H. R. R. R. Co. 56 N. Y., 630.

The rule requiring the master to adopt asafety device in general use does
not require him to do so, in a case where by reason of special circum-
stances the device will not insure safety.

PIff’s intestate, engineer, killed; engine ran off track through
misplaced switch. Switch a common switch, formerly a patent
switch had been there, which in most places is safer than a
common switch, but had been there found to be unsafe by reason
of the grade, had been replaced by switch in question as being
safer.

(Nonsuit.—Aff. at Gen. T.—Aff.)

 

BAHRENBURGH Vv. B’KLYN Orty H. P. & P, P. RB. BR. Co.
56 N. Y., 652.

It is the duty of the driver of a vehicle in a city street to keep his attention
on the street in front of him.

The negligence of the parent of a child in allowing it to escape from his
custody is not a proximate cause ofan injury to the child during such
escape, where it has gotten into the custody of another person.

‘Whether it is negligent to allow a boy of three years to ride on the end of a
wagon seat is a question of fact.
146 Cases ConpENSED. [1874.

 

PIff, boy of 3, run over by deft’s car, had escaped from home
with his sister 6 years old, asked their father’s clerk driving a
wagon for a ride, took them up on seat, plff at end, while cross-
’ ing deft’s track, plff jostled off, fell on track in front of car, 25
feet off, driver did not see him, nothing to prevent him seeing,
several persons shouted to driver, car could have been stopped
in 10 or 12 feet. Injury, right arm amputated and right thigh
fractured.

(Verd. $2,500,—Aff. at Gen. T.—Aff.)

‘CROCHERON v. NORTH SHORE STarT. Is. F. Co. 56 N. Y., 656.

It is not negligent for a common carrier to fit up his vehicle in the same
manner as similar vehicles are usually fitted, and which experience has
not shown to be unsafe. :

Or,

It is not negligent for a common carrier to cover steps in its boats with
brass plates in the manner usually done in boats, when experience has
not shown it to be unsafe,

Plff, passenger, slipped on stairway of deft’s ferryboat, steps
covered with brass plates, corrugated save where they turned
over the edges, there smooth, plff slipped on smooth part, stairs
furnished in same manner as best river boats and American sea-
going steamers; the ferryboat had been used a year, carrying
1000 passengers per day, no such injury ever before; there was
evidence that this mode of covering steps was the best in use.
Injury, leg and ankle fractured.

(Verd. $3,350.—Aff. at Gen. T.—Rev. new tri. ord.)

Downs v. N. Y. Cent. R. R. Co. 56 N. Y., 664.
(Ist Appeal, 47 N. Y., 83.)

No new questions except one as to conversation between plff
and mother, not material here.
(Verd. $11,500.—Aff. at Gen. T.—Aff.)
1874, ] Cases ConDENSED. 147

 

SLEERS v, LIVERPOOL, N. Y. & P.S. 8. Co. 57 NLY,, 1.

Piff's baggage lost by deft’s negligence, ticket provided deft
not liable in any sum for loss of baggage unless by negligence
of deft, and not in any event beyond ¢50 unless bill of lading
or receipt signed specifying the articles and value. eld, deft
only liable for $50.

SVENSon v, ATLANTIC Mat 8.8. Co. 57 N. Y., 108.

Evidence that a man is working on a vessel owned and managed by the
defendant warrants the inference that he is in the latter’s service.

Where two masters set their servants to work in co-operation upon one job
each is responsible to the servants of the other for the negligence of his
own servants.

Or, .

Persons working on the same job, but under pay and orders of different
masters are not fellow-servants.

PIff employed on a lighter lightering deft’s steamer, alongside,
struck by bale thrown without warning on to the lighter’s deck
by one of the men on the steamer engaged in the work of
unloading it, could have seen plff hadhe looked, but was engaged
in talking. Injury, leg broken and internal injuries.

(Verd. $2,250.—Aff. at Gen. T.—Aff.)

 

Barrp v. DAty. 57N. Y., 236.

State courts have jurisdiction over actions for negligence on navigable
waters.

Want of privity is no ground for exemption from a liability for damages
resulting to one man through the negligence of another while carrying
out a contract made with a third,

Or,

Want of privity is no defense to an action for negligence.

Piff's cattle, in transport on a scow under contract with owner
of scow, drowned through negligence in management of deft’s
tug towing the scow under contract with owner of the latter.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

Eaton v. DEL. L. & W. RK. R. Co. 57 N. Y., 382.

A person riding in a caboose of a freight train at the invitation of its cone
ductor given in defiance of the company’s instructions is unlawfully on
the train.
148 CasEs CONDENSED. (1874.

 

A common carrier owes no duty of care to persons unlawfully on its trains,

Plff injured while riding free in caboose of deft’s coal train
upon invitation of its conductor, who told him deft needed
brakeman, and if he would go with the train to a certain place,
he the conductor would try to get him employed ; deft’s em-
ployees were forbidden to allow passengers to ride in its
cabooses, this regulation not posted in them, plff had no know-
ledge of it. Injury, body burned and disfigured.

(Verd. $5,000.—Aff. at Gen. T.-—Rev. new tri. ord.)

ScHOENWALD v. MrT. Sav. Bk. 57 N. Y., 418.

Under a rule duly printed in its deposit book, that all payments made to
persons presenting the deposit book shall be deemed good payments to
the depositor, a bank is not negligent in making a payment to a person
so presenting a book, ,

Lyons v. Erte Rattway Co. 57 N. Y., 489.

Dyke case (45 N. Y., 113) followed as to effect of Penn. statute,

In rebuttal of a claim that the plaintiff has retarded his own recovery by
careless behavior, he may show that he acted as he did under his physi-
cian’s advice.

Piff, passenger, injured in Pennsylvania, in which state
recoveries in such cases are limited to $3,coo: deft claimed that
plff's recovery was retarded by his improperly taking exercise,
whereupon plff proved he had taken exercise under his physi-
cian’s advice. Injury, arm broken, spine displaced and internal
injuries.

(Verd. .$20,000.—Aff, at Gen. T.—Aff.)

FRENCH v. DONALDSON. 57 N. Y., 496.

A person who has contracted to keep a highway in repair, and to pay all
damages resulting from his failure to do so, is responsible in damages
to a person injured through such a failure, without regard to the fact that
an official of the state had not thought the repair necessary.

Whether it is negligent to take a number of horses over a bridge is a
question of fact, where the bridge would be strong enough to support the
number if it were in proper repair.
1874. } Cases CoNnDENSED. 149

 

Plffs horses drowned, fell into canal, going over bricge
timbers, rotten ; deft had contracted to keep it in repair, clause
in contract, pursuant to chap. 836, laws of 1866, requirmg him
to pay all damages arising to any person by reason of his negli-
gence, default or misconduct, and by laws of 1867, chap. 577,
it was enacted that contractors should keep the bridges in good
and safe condition; evidence, that the superintendent had
ordered all repairs to be done which in his judgment were
necessary, excluded.

(Verd. for plffi—Aff. at Gen. T.—Aff.)

MarTtison v. N. Y. Cent. R. R. Co, 57 N. Y., 552,

Plff's baggage delivered to wrong person ; plff had at end of
journey told baggage master she wished to leave her trunk a
few days, he replied not allowed to do so, could not keep
baggage with checks on, but if she gave check up, it would be
safe, which she did. He/d, deft not liable.

MULLEN v, ST. JOHN. 57 N. Y., 567.
A presumption that the fall of a building was due to the negligence of its

owner arises from the mere fact of its fall.

PIff passing along sidewalk, injured by fall of deft’s building,
no cause of fall shown; court charged that the jury might
presume negligence from the fact of the fall. Injury, arm dis-
located and scalp wound.

(Verd. $1,350.—Aff. at Gen. T.—Aff.)

Mertcarr v. BAKER. 57 N. Y., 662.

‘The loss incurred by a professional man in his practice is a proper item of
damage.

Expense for medicine is a proper item of damage.

The words ‘‘with great force and violence”’ do not import that an act found

to be negligent was wilful.

Plff, a physician, upset in buggy, in collision with deft's cart,
negligently driven by deft’s servant with great force and violence;
evidence of amount of his earnings, and of expense for medicine
was allowed. Injury, hips injured and bowels inflamed.

(Report $1,600. —Aff. at Gen. T. —AIL)
150 CasEs CONDENSED.’ [1874.

 

Hoyt v. Lone IsuanpD R. R. Co. 57 N. Y., 678.

A newspaper reporter, however expert his editor may think him to be in
assigning the causes of railroad accidents, must not seriously expect to
be accepted as such by the courts. s ‘

Piff’s testator, original plff, passenger; car thrown from track,
broken rail, issue was whether rail defective, or cut maliciously
by unknown person ; newspaper reporter’s evidence as an expert
on the cause of the breaking of the rail excluded, his qualifica-
tions as an expert being his examining into dozens of railroad
accidents during 20 years for the purpose of reporting the
probable cause. Injury, collar bone broken, hand and legs
lacerated, head crushed, sight impaired.

(Verd. $15,000.—Aff. at Gen. T.—Aff.)

Sprone v. Boston & ALB. R. R. Co. 58 N, Y., 56.

In the absence of instructions to the contrary, it is not negligent for a head
brakeman on a freight train to ride on the engine when his duties do not
call him elsewhere and the custom, known to his superiors, is to ride
there.

Plff’s intestate killed in same accident as that of the Flike
case, (53 N. Y., 549); the only question in this case which was
not in that, grew out of fact, deceased on engine. at time of
collision, was head brakeman ; deft’s printed rules provided that
no brakeman should leave his post or be in a car when train
was moving, did not define the post; was not shown that
deceased knew of the rules, was shown that brakemen frequently
rode on deft’s engines, usual custom for head brakeman to do
so, with knowledge and acquiescence of train despatcher and
ass’t superintendent.

(Verd, $5,000, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
ord. on verd.—Aff. )

Merz v. Burr. Corry & P.R. BR. Co. 58 N. Y., 61.

A corporation, whose property and franchises have passed into the posses-
sion of an assignee by virtue of hostile legal proceedings, is not the
superior of the persons engaged in carrying on the business.

Piffs intestate, passenger, killed while riding on a train
operated by assignee of deft; deft had built and operated the
1874. } Cases ConDENSED. 151

road, which prior to the accident had passed into hands of an
assignee in involuntary legal proceedings; had been sold to
holders of rst mortg. bonds, pending proceedings to confirm
the sale, the accident occurred.

(Verd. $5,281.02.—Rev. at Gen. T. new tri. ord.—Aff. judg.
absol. for deft.)

CARROLL v. STATEN ISLAND R. R. Co. 58 N. Y., 126.

The gravamen of an action against a common carrier to recover damages
for a personal injury is the breach of the duty imposed by law upon com-
mon carriers of passengers to carry them as safely as human skill or
foresight can accomplish, and it exists independently of contract.

Carrying a greater pressure of steam in a boiler than is allowed by the
inspectors of boilers under the act of Congress is negligence.

When a common carrier carries passengers on Sunday, of whose purpose
in travelling it is ignorant, it owes the same duty of care to those unlaw-
fully, as to those lawfully, travelling.

Plff, passenger on deft’s boat, on Sunday, for pleasure, in-
jured by explosion of boiler, caused by pressure of steam greater
than the amount allowed by the U. S. inspectors, appointed
under act of Congress, and a weakness in the boiler due to
latent crack not known, not discoverable by highest skill or
foresight ; did not appear that deft knew plff traveling for pleas-
ure. Injury, hands burned and scalded, head, lungs and body
injured.

(Report $2,250.—Aff. at Gen. T.—Aff.)

Note,—No one will doubt, after reading the opinion, that it is immaterial

whether the carrier knows of the traveller's purpose. Yet the case does not
goso far. Hence the rule is limited to the exact point in the case.

Ross v. Boston & AuB. R. R. Co. 58 N. Y., 217.

Arailroad company is not answerable to its servants for the damages
resulting to them from the negligent starting of its trains from its depot
only a few minutes apart, in the absence of proof that it has failed
to adopt proper rules on the subject.

Plff's intestate, brakeman on deft’s freight train, killed in a
collision due to three of deft’s freight trains having been negli-
gently sent out of its depot only 3 or 4 minutes apart; it was
not shown by what direction they started so nearly together,
nor that the company had failed to prescribe proper and safe
152 Cases CoNnDENSED, [1874.

rules for despatching them, nor that the improper starting was
not due to a fellow-servant.

(Verd. $3,500, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
ord. on verd.—Rev. new tri. ord.)

 

REYNOLDS v. N. Y. C. & H.R. R. BR. Co. 58 N. Y., 248.

No presumption exists, in the absence of proof, that an injured person
was exercising due care at the time of the injury.

Pliff’s intestate, intelligent boy of 13 years, living near deft’s
crossing, accustomed while going to school near by, to cross it
4 times a day, was last seen alive about 100 ft. from the track
going home from school at noon, while a freight train was
passing on the farthest track; before it had gotten fully by a
passenger train came from the opposite direction on the track
nearest him ; after the trains had passed, he was found dead in
the cattle guard between the tracks, and it appeared that he
was struck by the passenger engine, no whistle blown, nor bell
tung ; day clear, little wind, tracks and road nearly at right-
angles ; from point ten ft. from track, passenger train could
have been seen 750 ft, off.

(Verd. $300.—Aff. at Gen. T.—Rev. new tri, ord.)

MASTERTON v. VILLAGE OF MT. VERNoN. 58N.Y., 391.

A municipal corporation having power by its charter to give permits to lot
owners to make excavations in its streets owes no duty to the public to
see that a street is at once made safe after such an excavation has been

Bybenes of past profits in a business, the nature of which is such that the
profits are more uncertain than those of a professional kind, is inadmis-
sible.

Plff injured by being thrown from his wagon through its sink-
ing into an excavation in deft’s street made by an adjacent lot
owner under its permission so as to connect his drain with its
sewer, it having under its charter power to construct sewers,
and give lot owners such permits ; excavation improperly filled
up by lot owner, not shown that deft’s officials knew of the hole
thus left, nor how long it had been there ; court charged that the
act of the lot owner was the act of deft, and if the former
was negligent, the latter was liable ; evidence as to past profits
1874. ] Cases ConpDENSED. 153

 

of plff's business in which the profits were uncertain was
admitted. Injury, leg broken.
(Verd. $6,000.—Aff. at Gen. T—Rev. new tri. ord.)

Baton v. BAXTER. 58 N. Y., 411.
(1st Appeal, 54.N, Y., 245.)

If a person has time to cross a street-car track ahead of a car, the fact that
there is a vehicle being driven on the track behind the car, does not
necessarily render him negligent in crossing ahead of the car.

Plff claimed that the following evidence madea different case
from that on the first trial; he watched the cart following the
street car on the track as long as he could, did not think it
possible for it to get round the car in so short a time, did not
know where the cart was when he lost sight of it, did not
suppose it would turn out and catch him up.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

St. PETER v. DENISON. 58 N. Y., 415

A person setting off a blast is bound, either to adopt such precautions as will
prevent missiles from reaching a person lawfully pursuing his business
on adjoining premises, or to give him timely notice to enable him to

escape.

Plff injured by fall upon him of earth and stone thrown up by
blast on adjoining land, being excavated for canal by deft
under contract with state. Plff had no notice that blast was to
be set off. Injury, right shoulder broken and permanently
crippled.

(Report for $550.—Aff. at Gen. T.—Aff.)

Weer v. N.Y. C. & H.R. BR. RB. Co. 58 N.Y.,, 451.

A railroad company is not bound to take precautions by which persons at
its crossings shall be prevented from crossing when trains are approach-
ing.

A railroad company is not bound to exercise the utmost care and diligence
and use all the means and measures of précaution which the highest
prudence can suggest and which are in its power to employ, to prevent
injuries to persons at its crossings.
154 Cases CONDENSED. [1874.

 

When it is necessary, as in most cases it is, to determine what a person of
ordinary care and prudence would be likely to do under the circum.
stances proved, and it involves more or less of conjecture, a nonsuit is
not proper.

Plff struck by backing train while driving across deft’s crossing
at night, seven tracks, trains standing on some, obscuring
others, flagman stationed there by day, withdrawn at six o’clock;
plff stopped, looked, saw no light, signal or flagman, heard no
whistle or bell, did not see the backing train, obscured by cars,
till just as he was hit; ifa man swinging a lamp had been on
rear car could have been seen by plff who could and would
have stopped; deft gave evidence to show that there was a man
on the rear car swinging a lantern, who warned plff to stop ;
court charged jury in language which is negatived in first two
tules above given. Injury, skull fractured, spine injured,

(Verd. $2, 200,—Aff. at Gen. T,—Rev. new tri. ord.)

ROBERTS v. JOHNSON. 58 N. Y., 613.

The starting of a stage while a passenger is alighting is, in the absence of
proof as to the cause, evidence of negligence on the carrier’s part.

A person injured by the negligence of several persons may sue all, or one,
or any number of them.

The fact that a physician has retired from active practice does not render
him incompetent as an expert.

PIf passenger, in defts’ stage, while alighting was thrown
down by its sudden starting; defts’ gave no evidence to show
that the starting was due to anything beyond their control ;
some but not all of the stage owners were joined as defts; a
physician retired from active practice was allowed to give
evidence as an expert. Injury, cartilege of knee ruptured, and
shock.

(Verd. $5,000,—Aff. at Gen. T.—Aff.)

Roacw v. FuusHine & N.S, R. BR. Co. 58 N. Y., 626.

When two witnesses swear they did not hear a whistle or a bell at acrossing,
and six swear they did, it is a question of fact for the jury even though
the wind was blowing away from the two.
1874. ] Cases ConDENSED.? 155

 

Plff struck by deft’s train at crossing ; dispute as to ringing
bell and blowing whistle, two witnesses for plff, six for deft,
wind blowing away from plff not towards him. Injury, shoulder,
side, wrist and hand injured.

(Verd. $500.—Aff. at Gen. T.—Aff.)

 

SHEEHAN v. EpGar. 58 N. Y., 631,

It is negligent for a person to drive rapidly along a street without looking
out for passers-by.

It is not negligent for a person crossing a wide street to stop on the cross-.
walk to let a vehicle go by.

Evidence of the continuing effect of an injury to the time of trialis admissible.

Evidence of the expenses of an illness consequent on an injury is admissible.

Evidence of loss of wages due to an injury is admissible.

Plff crossing an avenue, stopped on crossing to let truck go
by, run over. by deft’s horse and wagon rapidly driven diag-
onally across the avenue, driver not seeing her, nor hearing her
cry to stop; evidence of continuing effect of injury to time of
trial, expenses, loss of wages, allowed. Injury, leg injured and
bruised, causing running sore.

(Verd. $1,500.—Aff. at Gen. T.—Aff.)

Crist v. ER1E Ratuway Co. 58 N. Y., 638.

In an action to recover damages to property near a railroad by fire, evidence.
that passing engines were in the habit of showering sparks further than
the property burned is competentto warrant the inference that the fire in
question was thus caused.

PlA’s barn burned, near deft’s track, plff was allowedto prove
that engines passing along deft's track emitted sparks and coals
which fell further from the track than the barn was; his
evidence tended to show that there was no probability that the
barn was set on fire by any other cause than that of escaping
sparks and coals through a defective spark-arrester; deft’s.
evidence to show probability the other way.

(Verd. for plffi—Aff. at Gen. T.—Aff )
156 Cases CoNDENSED. (1874.

 

BurraLo & H. TURNPIKE Co. v. City oF BUFFALO.
58 N. Y., 639,

‘The fact that work is being done by acontractor does not relieve a munici-
pality from responsibility for damages resulting from a negligent doing of
it, where such negligence is that of one of its own officials under whose
direction the work is done, as well as that of the contractor.

Plf’s bridge destroyed through negligence of contractor and
city surveyor ; it was being moved under deft’s authority for the
purpose of making alterations in it so as to enlarge it under an
old agreement with plff (there having been various arrangements
proposed under and outside of an act of the Legislature in regard
to it). Moving done by a contractor under direction of city sur-
veyor.

(Rep. for plff.— Aff. at Gen. T.—Aff.)

PRENDEGAST vv, N. Y.C. & H.R. R.R. Co. 58 N. Y., 652.

An infant of two years of age is not capable of negligence.

Whether the custodian of a child is negligent, who,’while engaged in work,
withdraws attention from the child for a few moments, is a question of
fact.

A railroad company is not bound to fence against children.

It is not negligent for a railroad company to allow its locomotive to be run
by a fireman alone, if he is competent.

It is not negligent in a railroad company to run over an unseen child at a
spot where it was not bound to anticipate that the child might be.

Plf’s intestate, child of two, escaped from the mother’s
custody at home she having, while engaged in her work, with-
drawn her attention a few moments; got on to deft’s track through
deft's defective fence, run over by engine in charge ofa fireman
only, who was competent, but whose attention was occupied
by looking for a switch signal; no bell rung nor whistle sounded.

(Verd. $120.—Rev. at Gen. T. new tri. ord.—Aff. judg absol.
agst plff.)

Norr.--For a case of similar facts see Kenyon v. same deft. 76N. Y., 607.

HARRIS v. PANAMA R. R. Co, 58 N. Y., 660.

Plff's race horse killed in transit through deft’s negligence, no
market value for horses in Panama, but there was in San
Francisco, to which horse bound. Aedd, evidence of value in
latter place proper, and jury could use it in determining value.
1874. ] Cases CoNDENSED. 157

 

ALLEN v. FourTH Nat. Bang. 59 N. Y., 12.

The neglect of a person, on paying forged commercial paper, to use due
diligence in inspecting itand giving notice of the forgery, which neglect
would operate to the prejudice of the person receiving the payment, if
required to refund, will defeat an action against such person to recover
the amount so paid.

Sworps v. EpGar. 59 N. Y., 28.
An owner of a public pier owes a duty to the public not to letitin an unsafe
condition.

Piff’s intestate, longshoreman, killed by the breaking down
of a pier, on which he was working, unloading a steamer, pier
owned by defts, let by them in an unsafe condition to the
steamship company which had covenanted to keep it in repair,
failed to do so.

(Verd. $3,500.—Aff. at Gen. T.—-Aff.)

‘SHELTON v. MERCHANTS Dis. TR. Co. 59 N. Y., 258.

Plffs goods shipped over deft’s line, destroyed by fire while
awaiting transhipment at end ofits line. Had been ordered by
plff of a firm where shipped, which latter shipped them under
same conditions as it did its own goods, as to deft’s non-
liability for loss beyond end of its own line; goods unloaded
by deft at end of its own line on Sunday, no proof that by law
of state where done this was unlawful. ed, deft not liable.

PURCELL v. JAYCOX. 59 N. Y., 288.

Where a carman has general authority to receive and cart goods consigned
to another person, the latter is responsible for his negligence in caring for
them.

BLANCHARD t. N. J. STEAMBOAT Co. 59 N. Y., 292.

Plff's steamboat while towing on Hudson river run down by
deft’s steamboat.

The case reaffirms the rule as applied in the prior cases
that negligence which does not contribute to aninjury is not
contributory negligence.

(Verd. for plff_—Aff. at Gen. T. —Aff.)
158 Cases CONDENSED. (1874-75,

 

FILer v. N. Y. Cent. R.R. Co, 59 N. Y., 351.
: (ist Appeal. 49N. Y., 47.)

‘When the following of another person’s direction is relied on to answer the
charge of contributory negligence, it must be shown that the injured
person had reason to suppose that such’other person had better means of
knowledge as to whether it would be safe to follow such direction,

On the new trial it was in dispute whether plff was told to
‘get off by brakeman, or by a passenger ; the court charged that
it was immaterial whether it was a brakeman or a passenger.

(Verd. $11,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Baugec r. N.Y. & HaruEM R. R.Co. 59 N.Y., 356.

Negligence in retention of a negligent servant cannot be predicated of a
master, who investigates a charge of alleged negligence on such servant's
part, and, on its appearing doubtful whether such servant, who had been
in hisemploy for years, or another, had been guilty, retains the former.

‘Or,

When aretention of a servant is after an investigation by the master of
the conduct of such servant in a case, where the question of negligence
causing a prior accident Jay between such servant and another, the
evidence doubtful, the servant had been in his employ for years, and the
master had decided to retain him, it is not a negligent retention.

PIff’s intestate, fireman, killed through switchman’s negligence
in signaling that a switch had been changed, when it had not;
the only evidence to show negligence in deft in retaining in its
employ an incompetent switchman was that a few months
before a similar accident happened at same switch; blame rested
either on this same switchman or another employee; after
investigation by deft’s proper officer to ascertain which was at
fault he retained the switchman in question, who had been in
‘deft’s employ several years.

(Nonsuit,—Aff. at Gen. T.—Aff.)

McGratu v.N.Y.C.& H.R.R.R.Co. 59 N. Y., 468.

The absence of a flagman at a railroad crossing where one is usually sta-
tioned does not excuse a traveller from using his senses to discover an
approaching train.

‘Or,

‘The absence of a flagman at a railroad crossing where one is usually sta-
tioned is not to be taken by a traveller as an assurance that no train is
approaching.
1875 ] Cases CONDENSED. 159

 

Piff injured at deft’s crossing ; only question, whether absence
of a customary flagman at the crossing was admissible to excuse
plif for inattention ; court admitted the evidence of his absence,
and charged that such absence was an excuse. Injury, bruises
on back and limbs.

(Verd. $2,000 exc, at Gen. T.—Exc. overrul. at Gen. T. judg.
ord. on verd.—Rev. new tri. ord.)

SHIPsEY v. BowERY NATIONAL BANK. 59 N. Y., 485.

A bank which negligently fails to discover the loss in transit of a check,
which it has, under agreement with the holder, forwarded for collection,
whereby the holder suffers loss through the failure of the maker before a
duplicate can be obtained, must make good the loss.

Nims v. THe Mayor &c. oF Troy. 59N. Y., 500.

Where a sewer is altered by a private person under permission of the muni-
cipal authorities, it is the duty of the latter to see that the alteration is
properly made.

Plffs premises injured by failure of deft’s sewer to carry off
water accumulating after a heavy rain ; sewer had been altered
under authority of Com. Council, capacity reduced, choked by
debris; alteration by a citizen upon petition and consent of
city, which afterwards paid the expense.

(Report for plff—Aff. at Gen. T. modified.—Aff. )

CoRCORAN v. HOLBROOK. 59 N. Y., 517.

{f the master allows his employees to ride on a freight elevator, he is bound
to see that it is safe.

A master who delegates to a servant the performance of duties which the
master owes to his servants does not thereby escape responsibility for
the way in which those duties are performed.

Piff employee in deft’s mill, riding on freight elevator, out of
repair, injured by its fall, defts not managing mill in person,
manager had knowledge of elevator’s condition, employees
allowed to ride. Injury, leg fractured and finger broken.

(Report $1,000.—Rev. at Gen. T, new tri. ord—Rev. judg.
on report aff. )
160 Cases CONDENSED. (1874.

 

SALTER v. Utica & Bu. Riv. R. BR. Co. 59 N.Y., 631.

It is not negligent for a traveller to cross a track with his ears wrapped up
to protect them from the cold, unless he would thereby be prevented from
hearing an approaching train.

Wrapping reins arcund one’s body is not contributory negligence, if its only
effect is to prevent escape from, and not to cause, an accident.

Evidence that a railroad company has purchased a building, which obscures
a track at a crossing, is inadmissible.

Plff's intestate killed at deft’s crossing, driving, cold day, ears
covered, train behind time, no bell rung nor whistle blown,
hotel near track obscured the train, evidence admitted that
hotel recently been bought by deft, evidence excluded that
deceased had reins wrapped round his body.

(Verd. $3,875.—Aff. at Gen. T.—Rev. new tri. ord. on the
admission of evid. as to purchase of hotel; exclusion of evid.
as to wrapping of reins upheld.)

ACKERT v. LANSING. 59 N. Y., 646.

A mill owner owes a duty to persons lawfully on his premises to have the

mill and its appliances reasonably safe.

PIff while at deft’s saw mill under invitation was injured by a
plank, handled by deft, being caught in the saw and whirled
against him ; similar accident had happened a few days before
to deft’s knowledge. .

(Nonsuit.—Aff. at Gen. T. —Rev. new tri, ord.)

CALLIGAN v. N.Y.C.& H.R. R.R.Co. 59 N. Y., 651.

An ordinance limiting the speed of railroad trains at certain places in a city
is immaterial when the accident occurs at another place.

Piff’s intestate killed at deft’s crossing, city street, ordinance
limiting speed of train at other places in the city admitted, train
traveling faster than such limit.

(Verd.$1,250—Aff. at Gen. T.—Rev. new tri. ord.)

Irwin v N.Y. C.& H.R. BR. R. Co. 59 N. Y., 653.

Plff’s trees frozen while in transit over ‘“‘ White Line,” beyond
deft’s road ; deft and other toads associated together in run-
1874-75. ] Cases CoNnDENSED. 161

 

ning a fast freight line, called ‘‘White Line,” receipt pro-
provided that deft was not to be liable for any damage by any
other carrier. eld, deft not liable.

GORHAM v. TRUSTEES OF VILL. OF COOPERSTOWN.
59 N. Y., 660.

The mere existence of an obstruction in a street is not sufficient to chargea
municipality with a liability for damages resulting therefrom to a passer-
by.

Plff driving in a sleigh along deft’s street, pitched out through
sleigh striking a stick of timber covered with snow ; notshown
how or when it was put there, nor that the village authorities
knew or had notice of it.

(Nonsuit.—Aff. at Gen. T.—Aff.)

CourtTNEY v. BAKER. 60N, Y., 1.

It is within the scope of any servant’s employment to see that his master’s
property is not stolen, even though the master employs a watchman
specially for that purpose,

Plff longshoreman, loading cotton on cart on deft’s pier,
injured by falling on him of a bale thrown over by deft’s clerk,
who was taking measures to see that deft’s property was not
stolen; deft had a watchman for that purpose. Injury, leg
broken and dislocated.

(Verd. $1,500.—Rev. at Gen, T. new tri. ord., order of
reversal did not state that it was on a question of law.—App.
dismissed for want of jurisdiction.)

Notre.—The Gen. Term reversed on the ground that the clerk was not
acting in the scope of his employment. The Court of Appeals hold he was,
but the opinion is really oditer because of the dismissal on the ground above

stated. It has been concluded however to state the rule of the opinion as
the rule of the case.

BARTLETT v. McNzEIL. 60N. Y., 53.

Pliff injured, out of state, through deft’s negligence, deft non-
resident, summons served by publication, default, assessment of
damages by sheriff's jury, plff obtained warrant in supple-
162 Casrs CONDENSED. [1875.

 

mentary proceedings for ‘“ unjust refusal to apply property in
satisfaction of the judgment,” deft arrested, gave bond for
appearance for examination, plff’s motion for day to be fixed for
same denied. Held rightly so, judgment not valid.

CULHANE v. N. Y. C. & H. BR. RB, R. Co. 60 N. Y., 133.

Where an ordinance forbids blowing of whistles on locomotives within a
city’s limits, a railroad company is under no obligation to warn travellers
at street crossings in any other way than by ringing the bell.

As against disinterested evidence that a bell was rung ata crossing, evidence
that none was heard does not create a conflict of evidence justifying a
submission to the jury of the question whether it was rung.

Plff's horse killed at deft’s crossing, in city, no flagman nor
watchman at crossing, city ordinance forbade blowing whistle
in city limits ; plff’s witnesses testified that they heard no bell;
deft’s witnesses, four, two of whom disinterested, testified it
was rung; court referred in its charge to absence of flagman ;
refused to charge that deft was not required to give any actual
notice whatever of the approach of the engine beyond ringing
the bell.

(Verd. for plff.—Aff. at Gen. T.—Rev. new tri. ord.)

Lowery v. West Un. TEL. Co. 60 N. Y., 198.

Plff received a message through deft asking him to transmit
to sender $5000; sender had really asked for only $500; plff
sent the $5000 per express, which proved to be too great a strain
on the other’s honesty and he absconded. edd deft’s negli-
gence not the proximate cause of plff’s loss.

CrEsaR v. Karurz. 60 N. Y., 229.

An owner of a house, which is to his knowledge infected by a contagious
disease, must not rent it without informing the tenant of the fact.

PARDEE v. Fiso. 60N. Y., 265.

The holder of a certificate of deposit does not discharge an endorser by
mere neglect to present it for payment.
1875. } Caszs ConDENSED. 163

 

First Nav. BANK v. OCEAN Nat. Bank. 60 N. Y., 278.

A bank is not responsible for the safe-keeping of a customer’s securities
placed in its vaults by its officers without special authority of the
directors.

‘THURBER v. HARLEM B. M. & F.R.R. Co. 60 N. Y., 326.

Ifa driver of a vehicle can, by stoppingit, avoid doing an injury to a person
crossing the street in front of it, he is bound tostop.

The degree of care, the omission of which would constitute negligence, is
to be graduated according to the age and capacity of the individual from
whom it is required.

The degree of care called for from a child in a given case is a question of
fact to be determined by the circumstances of that case.

Piffa boy of 9, going to school, ran across deft’s track in
front of car, knocked down by one of the horses, run over by
car, latter going at rate of 6 miles up grade, under control of
driver, who, by reasonable vigilance, could have seen plff and
stopped car in time to prevent the accident. Injury, right leg
amputated and thigh fractured, left leg badly injured.

(Verd. $10,000.—Rev. at Gen. T. new tri. ord.—Rev. Judg. on
verd. aff.)

WHELAN v. LyncH. 60N. Y., 469.

Deft a factor, in possession of plff’s goods, plff instructed him
to sell them, neglected to do so. Held, measure of damages,
value of goods at time order given, and within reasonable time
thereafter, and not highest price between then and the trial ;
also, newspaper quotations of prices not evidence thereof.

BLANCHARD v. WEST. UN. TEL. Co. 60 N. Y., 510.

Telegraph wires in navigable streams must be laid on the bed of the
stream,

Plff's steamboat while passing over deft’s cable, improperly
laid in the Hudson River at Albany was caught by it, and
injured.

(Findings by court for plff.—Rev, at Gen. T, new tri. ord.—
Rev, judg. on findings aff.)
164 Cases CONDENSED. (1875.
Puank v. N. Y.C. & H.R. BR. RB. Co. 60 N.Y., 607.

A railroad company owes a duty to its brakemen to see that the places where
they shall be ordered by its conductors to couple cars shall be safe.

It is not negligent for a brakeman to couple cars while in motion.

The knowledge of a brakeman of the unsafe condition of a place where heis
ordered to couple cars is not, where he is required to couple the cars while
in motion, to be presumed to be so present in his mind as to make him
guilty of contributory negligence in obeying the orders.

Piff’s intestate, brakeman coupling cars in motion at night
under conductor's orders; injured by stepping into sluiceway
under track, of which he had knowledge, plank laid across it.

(Nonsuit.—Rev. at Gen. T. new tri. ord.— Aff. judg. absol.
agst. deft.)

ENGLISH Vv. BRENNAN. 60 N. Y., 609.

No duty rests upon a property owner who does not own the sidewalk in front
of his premises to remove a nuisance thereon not created by himself.

A member of a club, who is not a party to the tortious acts of a fellow
member in carrying on the club, is not responsible for them.

Or,

A member of a club owes no duty to any one to keep his fellow-members
from negligent acts in carrying on the club.

Piff's intestate, killed by falling of a decayed pole in a side-
walk opposite deft’s premises, deft’s deed did not include the
sidewalk, pole not erected by him, fall due to weight of a banner
placed on it by order of a committee of a club which rented the
premises from deft, deft a member of the club, but had nothing
to do with raising the banner.

(Nonsuit.—Aff. at Gen. T.—Aff.)

Carr v. N, Y.C.& H. R.R. R. Co. 60N.Y., 633.

Whether it was negligent for a traveller ata crossing to fail at night to see

an approaching train, when he took precautions to look for one, is @
question of fact.

Piffs horse injured at deft’s crossing, driven across at night,
plff observed care in approaching the track, stopped, waited for
a train from the east, looked west, vision obstructed by build-
ing, looked again as he got near the track, saw nothing, but
while crossing struck by train from west moving rapidly, no
signals given.

(Verd. for plff.—Aff. at Gen. Term.—Aff. )
1875-74. } Cases CONDENSED. 165
BISSEL v. ToRREY. 60N. Y., 635.

A charterer of a vessel, whose agreement with her owner is that he is simply
to pay the latter a stipulated sum per trip, and the owner is to employ
and pay the crew and manage the vessel, is not responsible for the negli-
gence of the crew in its management.

A general agent of the owner of a vessel is not responsible for the negli-
gence of the crew in its management.

Piff's canal boat in a tow, sunk through negligence of those
in charge of the towing steamboat, latter owned by a corpora-
tion, of which deft White was a stockholder also general agent;
White chartered her to deft Torrey for towing boats between
Albany and N. Y. Torrey contracted with plff to tow the boat
in question; the steamboat company retained possession and
control of her, employed and paid the men, receiving from
Tarrey so much per trip.

(Nonsuit.—Aff. at Gen. T.—Aff.)

McCaFFERTY v. SPUYTEN Duyvit & P. M. BR. BR. Co.
G1 N. Y., 178.

Where a contract, necessitating blasting in its performance, contains a
clause that the contractor is to pay all damages from blasting, the other
party is not responsible for the damages resulting to a neighbor’s property
from negligent blasting.

The rule that a contractor’s servants are to be considered as the servants
of the other party to the contract only as to illegal acts, which must be
done to carry out the contract, applies to the case of a railroad company
constructing its road by contract.

Plff’s property injured by careless blasting by a sub-contractor
of a contractor who was constructing a railroad near his premises
under a contract with deft, which contained a clause that the
contractor should be responsible for all damages from blasting.

(Nonsuit.—Rev. at Gen. T. new tri. ord.—Rev. judg. on

nonsuit aff. )

Trirus v. PRESIDENT & . GREAT WEST. TURNPIKE ROAD.
61 N. Y., 237.

Acorporation is responsible for the damages sustained by a holder of
spurious stock, apparently valid but obtaining that appearance only
through the fraud of one officer and the negligence of another.
166 Cases CoNnDENSED. (1874-75,

 

MAILLER v. Exp. PROPELLER LINE. 61 N.Y., 312.

Placing a sailing vessel in peril from a steamer by tacking is not negligence
when done to avoid a river’s bank and the steamer is not seen.
The failure of a steam vessel to keep out of the way of a sailing vessel, if
she can, is negligence.
Evidence of prior accidents, in which witnesses have been, is admissible.
Plff's sloop injured in collision with deft’s propeller on Hudson.
river ; sloop on tacking first discovered the propeller when too.
late to avoid acollision, had to tack because of river bank ; the
propeller saw the sloop,‘and could have avoided her by passing
to the west, but carelessly attempted to pass to the east, sloop
kept on her course; plff was allowed to cross-examine deft’s
witness as to other accidents. ,
(Report for plff.—Aff. at Gen. T.—Aff.)

Purpy v. N. Y. & New Hav. R. R. Co. 61 N. Y., 353,

Ifa foreign railroad corporation extends its track into this state, it must
fence it in obedience to the requirements of our statute.

PEASE v. SMITH. 61 N. Y., 477.

The defense of contributory negligence is not available against an owner
of stolen property in an action against an innocent purchaser for its
conversion.

Topp v. Ciry or Troy. 61 N. Y., 506.

A municipal corporation charged with the duty of keeping its streets im
repair is liable to a passer-by for the damages sustained by falling on ice
concealed by snow which had remained on its sidewalk long enough for
the city officials to have become apprised of its existence.

Plff’s intestate (dying after judg.) passer-by on deft’s sidewalk
fell on ice concealed by snow; its charter required the com-
mon council to keep the streets in repair, street much traveled,
easy to observe, ice there long enough to have been seen by
many persons. Injury, thigh fractured.

(Verd. $1,000.—Aff. at Gen. T. Aff.)
1875. ] Cases CONDENSED. 167

 

WesroorT v. Farao. 61 N. Y., 542.

A clause in an express receipt, that the carrier will not be liable for any loss
if the claim is not presented within thirty days from the accruing of the
cause of action, is in the nature of a umitation to be availed of by answer,
rather than a condition precedent to be avoided in the complaint.

A clause in an express receipt, that the express company shall not be liable
for any loss of a package for over fifty dollars unless the value thereof
was stated, does not include a loss occasioned by the company’s negli-
gence.

4 Pounin v. Bway & 77H Ave. R. BR. Co. 61 N. Y., 621.

Itis the duty of a carrier of passengers to give them a reasonably safe
opportunity: to alight from its vehicles.

PIff passenger, alighting, thrown down as she put foot on the
ground, through conductor starting the car, hoopskirt catching
on anailin platform. There were ten requests of deft’s which
were refused ; they are not digested because of their hair-split-
ing nature and the court’s evident discountenance of the practice
of submitting craftily prepared requests in the hope that they
will be refused rather than charged. The opinion does not seem
to affirm or deny their correctness, but rather to ignore them.
Injury, leg and hip injured, also internal injuries causing four
miscarriages.

(Verd. $2,500.—Aff. at Gen. T.-—Aff.)

Haaeerty ¢. BKLYN City & N.R.R. Co. 61 N. Y., 624.

A witness of an accident can not be asked whether in his opinion anything

could have been done to avert it. <

Piff run over by deft’s car; only point, eye-witness of it was
asked if in his opinion anything could have been done by the
conductor to prevent the accident, excluded. Injury, foot
amputated.

(Report for $3.000—Aff. at Gen. T.—Aff.)

ACHESON v. N. Y.C.& H.R. B.R.Co. 61 N. Y., 652.

Action for damages for negligent delay in transportation of
plff's goods, usual running time twenty hours, time taken eleven
days ; deft gave evidence delay occasioned by accumulation of
168 Casrs ConDENSED. [1875.

 

freight beyond its capacity to carry; plff in rebuttal showed
several instances where goods in same month carried between
same places in an average time of less than two days. Held,
question of fact.

APPLEBY ¥v. ERIE County Sav. BK. 62N. Y., 12.

Notwithstanding a rule of a savings bank that the possession of its pass-
book is sufficient to warrant payment to the person possessing it, the bank
owes a duty to its depositor not to be negligent in making such a
payment. .

MAGNIN v, DinsMoRE. 62 N. Y., 35.
(Ist Appeal. 56 .N. Y., 168.)

The question on the new trial was whether the omission of
plff to disclose the value of the package was fraud on deft;
court refused to so charge. New trial granted on that ground,
and also on charge as to measure of damages.

VAN RENSSELAER v. ALB. & WESTS. RB. BR. Co. 62.N. Y., 65.

Aneasement may becreated by agreement, whereby anegligently constructed
embankment may be maintained by one neighbor near another’s line.

BraDuey v. N, Y. Cent. KR. R Co, 62 N. Y., 99.

Where, by agreement, the master is to warn the servant of approaching
danger, it is not negligent for the servant to omit to be on the lookout.

Plff employed by deft’s foreman to scrape snow from deft’s
track under special circumstances within his authority, foreman
agreeing to warn pli of approaching trains, failed to do so, plff
did not look relying on foreman’s promise. Injury, ankle dis-
located, hip, head and shoulders injured, also 2 horses killed
and wagon smashed.

(Verd. $2,000.—Aff. at Gen. T.—Aff.)
1875. ] Cases CoNnDENSED. 169

 

MAXIMILIAN v. THE Mayor &c. oF N. Y. 62.N. Y., 160.

A municipal corporation is not answerable for the negligent acts of an
employee of a department of such corporation, which is created by the
Legislature not for the purpose of managing the corporation’s pruperty,
but of providing for the general welfare of the citizens.

Plffs intestate run over by an ambulance negligently driven
by an employee of the Commissioners of Public Charities and
Corrections of the City of New York.

(Nonsuit.—Aff. at Gen. T.—Aff.)

Sura v. SixtH Ave. KR. R. Co. 62 N. Y., 180.

' A street car company is responsible for the act of a conductor in throwing
off from the platform of a car a person, who in crossing the street passes
over the platform of the car because it is obstructing the crossing.

SamMMon v. N.Y. & HarteM Rk. R.Co. 62 N.Y., 251.

It is not negligent for a servant to bein a spot where his duties call him.

A slight defect in an appliance, easily remedied by care on the part of the
person who uses it, is not such a defect as to make the master liable for
an injury occurring to one servant through the omission of another to
use such care,

Plff’s intestate, flagman, stretching chains over crossing, run
over by car on side track put in motion by another car which
had become detached from a passing freight train owing to an
insecure switch, the insecurity consisting in the pin which should
hold the lever of the switch in place being too large for the hole;
switch was new, before it was put in, the switch tender had
held the former lever himself, or used a crowbar, might have
done so on this occasion, but did not.

(Nonsuit.—Aff. at Gen. T.—Aff.)

HEINEMANN v. HEARD. 62 N. Y., 448.

In an action to recover damages for negligence the burden of proof never
shifts from the plaintiff.

This was an action against a factor or agent to recover
damages for his neglect to buy when he should have done so,
170 Cases CONDENSED. (1875.

 

SHEEHY vt. BuRGER. 62 N.Y., 558.
A person conveying anything in a wagon in a city street which projects
out at the rear, is bound, on turning, to see that it does not sweep against
a passer-by.
Whether a passer-by in a city street is negligent in failing to observe any-
thing projecting from the rear of a passing vehicle is a question of fact.
Plff stepping down from sidewalk to cross a street, struck by
timber dragging on ground extending from deft’s cart, cart
turned at the moment, swept timber against plff who did not
observe the timber dragging behind in time to avoid it.
(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

DuRYEA v. THE MAYor &c. oF N. Y. 62 .N. Y., 592.

Ifa city grants land under water with the privilege of filling earth in, it must
not construct adjacent sewers so as to wash away earth thus filled in.

MoreGan v. CROCKER. 62 N. Y., 626.

Negligence cannot be predicated of an omission to provide against the
action of an unprecedented storm.

Plff's cows kept in deft’s cattle-yard in Buffalo near the lake;
yard ordinarily used for such purpose, proper yard, in case of
flood liable to be overflowed, never had been to depth suffici-
ent to endanger the cattle; storm of unprecedented violence
arose suddenly, during the night, lake overflowed, drowned

cows.
(Verd. for plffiAff. at Gen. T.—Rev. new tri. ord.)

CoLuiss v. Burns. 63 N. Y., 1,

A warehouseman is responsible for a loss from a negligent delivery of
property in his charge to a person not authorized by the person, by whom
it is stored, to receive it,

SmirH v. N. Y. anp Osw. Min, R. RB. Co. 63 N. Y., 58.

The grant to a railroad company of a strip of land through a farm, for pur-
poses of its road without reservation or exception, is not a waiver of its
statutory obligation to maintain a farm crossing.
1875. ] Cases CONDENSED. 171:

The omission to replace planks taken up from a railroad crossing, with the
result of leaving deep holes, is negligence.

Plff injured at farm crossing, on her farm, her grantor had
conveyed strip of land to deft without reservation or exception;
deed to plff reserved right of way to deft, farm crossing made
by deft; after heavy fall snow, deft’s servants took up crossing
planks, leaving deep holes, plff crossing in a cutter thrown out;
court charged deft guilty of negligence in taking up the crossing
if did not at once replace it. Injury, shoulder dislocated.

(Verd. $185 exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
ord. on verd.—Aff. ) /

Sturm v. ATLANTIC Mut. Ins. Co. 63 N. Y., 77.

The negligence of the master of a vessel, whereby it is lost, is not imputable
to its charterer, so as to prevent him from recovering an insurance on
his cargo.

Or,

A charterer of a vessel whose goods are lost through the negligence of its
master is not the superior of the master, so as to be precluded from
recovering the insurance on the gouds.

MoGarry v. Loomis. 63N. Y,, 104.

It is a nuisance to maintain a hole ina sidewalk into which steam is dis-
charged.

It is only in cases where a child non sui juris has done or omitted something
which would be regarded in an adult as negligence, that the conduct of
its parent in respect to the degree of.care exercised over the child
becomes material.

Plff, boy of 14, playing on sidewalk, fell into hole in side-
walk, scalded by hot water and steam discharged in the hole
from a pipe under the sidewalk coming from deft’s planing mill.
Injury, legs scalded.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

WEBHLE tv. CONNER. 63N. Y., 258.

The failure of a sheriff to return an execution within sixty days is not
justified by the receipt by him of an attachment against the execution
creditor.
172 CasEs CONDENSED. (1875-76.

 

Carport v. BARNEY. 63 N. Y., 281.

An assignee or receiver of a railroad company is not personally responsible
for the damages resulting from the negligence of the subordinates
operating the road.

Plff's testator, passenger on a railroad which had been owned
by a bankrupt corporation, deft .its assignee and receiver ;
deceased killed through negligence of superintendent and others.

(Verd. $2,500 exc. at Gen. T.—Ex. sustain. at Gen. T new
tri. ord. —Aff. judg. absol. agst plff.)

Cox v. N. Y. Cent, & H. BR. R. R. Co. 63 N. Y,, 414.

A stipulation, pending an action to recover damages for injuries, that in case
the plaintiff dies before final judgment, the cause of action shall survive
operates to prevent its abatement.

Or,

Abatement of causes by death may be prevented by agreement as well as
by statute.

Note.—This is a far-reaching decision, but it seems never to have been
availed of by contract outside of suit.

Gipson tv. ERIE RAtWway Co. 63 N. Y., 449.

A master owes no duty to his servant to make alterations in his property
to secure greater safety from apparent danger.

If a servant, of his own volition and without any necessity connected with
his duties, puts himself in a place of danger, he does so at his own risk.

Plffs intestate, conductor of a freight train, climbing on top
of car, train moving, struck by projecting roof, of station; it did
not appear that it was any part of his duty to get on top of the
train, nor that his doing so at the time had any necessary con-
nection with his duties; he was well acquainted with the
station.

(Verd. $1,400.—Aff. at Gen. T. —Rev. new tri. ord.)

 

McGrata v. N.Y. Cent. & H.R.R.R. Co. 63 N. Y., 522.

Evidence of the absence ofa flagman ata railroad crossing, where one is usually
stationed, is admissible as one of the attendant circumstances, bearing

upon the question whether the defendant was at the time runningits train
negligently.
1876-75. ] Cases CONDENSED. 173

The fact that the track belonged to another company, by which a flagman
at a crossing is employed, is immaterial upon the question whether a
defendant’s train was negligently run at such crossing.

A city ordinance requiring a flagman to bestationed at every street crossing
is admissible against a railroad company, which though not owning the rail-
road, or having anything to do with employing the flagman, runs its trains

over the road.

Plff struck by deft’s train at a street crossing, track belonged
to another company ; evidence excluded that flagman usually
stationed there was absent, also of city ordinance requiring
flagman to be stationed at every crossing excluded.

(Verd. for deft, exc. at Gen. T.—Exc. overrul. at Gen. T.
judg. ord. on verd.—Rev. new tri. ord.)

BurRROWS v. ERIE RAttbway Co. 63 N.Y., 556.

A passenger alighting from a moving train under no other impulse than the

desire not to be carried past his station, does so at his own risk.
Or,

The desire of a passenger, duly warned against getting off a moving train,
not to be carried past his station is not sufficient excuse for his alighting
from the train after it has started without giving him time to get off.
PIff passenger, injured while alighting from moving train, it

had stopped at her station, but started before she could get

out to the platform ; she had only a few moments before read
notice posted in car that passengers must not get on or off cars
while in motion; she was not induced to get off by any act of
deft. Injury, hip and back injured.

(Verd. $500, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
ord, on verd.—Rev. new tri. ord.)

Morrison v.N. Y. Cent. & H.R.R.R.Co, 63 N. Y,, 643.

In a death case, in the absence of direct evidence of negligence on the part
of the deceased, it may be presumed in his favor that he was desirous of
preserving himself from injury.

Plff’s intestate, boy of 14, struck by deft’s train while driving
over crossing; the circumstances of the case, not given in the
report, are stated to bear out the rule given above. The
question probably arose on the charge.

(Verd. $2,000,—Aff. at Gen. T.—Aff.)

a
174 Cases CONDENSED. [1876.

 

MALONE v. HaTHaway. 64N,Y., 5,
‘Where a master employs a competent person to keep his premises in a safe

condition, he is not liable to a servant for the damages resulting from the
negligence of such person in performing that duty.

Piff's intestate, employe in deft’s brewery, killed by falling of
a tub, support broke, had become decayed, decay not visible ;
deft’s superintended their own business, employed competent
carpenter to keep their place in good repair, about a year before
he had put in new and sound supports, the negligence claimed
was, the failure to examine the support.

(Verd. $3,500.—Aff. at Gen. T.—Rev. new tri. ord.)

FALLon v. CENT. PARK, N. & E.R. R.R. Oo. 64.N. Y., 13.

It is not negligence in a mother of a young child of atractable nature, upon
directing it to go into another part of the home, to fail to watch that it
does not go into the street.

Plff boy of 5, run over by deft’s car, through negligence of
driver, had been at home with mother in tenement house,
mother went into adjoining room, telling him to go into
yard at rear of house, instead of which, he went into the street;
in five minutes after mother left the room he was injured; had
not been known to go into street alone before, was tractable.
Injury, both legs cut off.

(Verd. $7,500.—Aff, at Gen. T.—Aff.)

Rovunps v. Deu. Lack. & W.R. BR. Co. 64N. ¥,, 129,

When a master instructs his servant as to who shall be allowed to ride on
his conveyance, he is responsible for the manner in which the servant
puts persons off, where the servant does so with the intention of carrying
out the instructions.

In ejecting a trespasser from one’s premises it must be done with reason-
able care for his bodily safety.

The fact that in carrying out his master’s orders a servant acts maliciously,
does not excuse the master from re ponsibility for the manner of per-
formance. :

Or,

The fact that the servant joins malice with obedience, does not excuse the

master from responsibility for the manner of carrying out his master’s
orders.
1876. ] Cases ConDENSED. 175

 

Plff a boy stealing ride on platform of baggage car kicked
off by brakeman, who was under orders not to allow any one
except train hands to ride on the car, train was backing, plff put
off at wood pile, against which he fell, rolled under train; court
refused to charge that if brakeman acted maliciously, deft was
not liable, had charged that if he was not acting under orders,
deft was not liable. Injury, leg amputated.

(Verd. $5,000,—Aff. at Gen. T.—Aff.)

SLATER v. MERSEREAU. 64N. Y., 138.

A clause in a contract for the erection of a building, providing that it shall
be done to the satisfaction and under the direction of an architect, does not
take from the contractor the control and direction of the work.

Where a defendant claims in mitigation of damages that an increase of them
was due to the negligence of a third person for which he is not respon-
sible, the burden is on him to show how much of the damage was
produced by his negligence, and how much by that of such third person,
and if he fails to do so he is liable for the whole.

PLff's'‘goods damaged by water, collected during a rain, from
adjoining premises upon which deft was erecting a building
under contract with owner, by which he was to erect the build-
ing in a good and workmanlike manner to the satisfaction and
under the direction of the architect; deft had a sub-contract
with a mason, by which latter was to do the mason work, con-
Struct vault and sidewalks, and do cutting of walls after other
workmen as deft should direct ; part of flow of water on plffs
premises due to negligence of deft in failing to direct the mason
to make certain cuttings in a wall for a pipe to carry off rain
from the roof, part due to negligence of the mason in con-
structing the vault and sidewalks in such a way as-to permit
tain to flow from the street into the cellar, where the two over-
flows from the roof and street united, thence soaking into plff’s

premises.
(Report for plff.Aff. at Gen. T.—Aff.)

SLOANE v. ELMER. 64 N.Y., 201.

Where the liability of a defendant turns on the question of his ownership of
a colliding vehicle, it is not error to refuse to charge upon the question
whether the driver thereof was his servant.
176 Cases CONDENSED. [1876.

 

Pliffs wife injured in a collision between his carriage and
another one owing to the negligence of the coachman driving
the latter ; the principal issue at the trial was whether the latter
carriage was owned by deft or his daughter, and the evidence
was such that the question whether the coachman was the
servant of the deft or of his daughter turned on the ownership of
the carriage ; the court having charged that plaintiff could not
recover if deft did not own the carriage, refused to charge that
if the coachman was not deft’s servant, but was the daughter's,
a verdict could not be found for plff. Injury, arm of wife
broken.

(Verd. $1, 500.—Rev. at Gen. T. new tri. ord.—Rev. judg. on
verd. aff.)

SHERMAN v. Hupson Riv. R. R. Co. 64 N. Y., 254.

Suit to recover damages for negligent delay in delivering
cotton to consignee, consigned from the west to “Bryan
Sherman”, so named in bill of lading; when deft received it
from prior carrier, name changed on papers to Ryan Sherman ;
deft changed name in its books to Ryan & Sherman, made no
effort to find any consignee except Ryan & Sherman; real con-
signee, Bryan Sherman, inquired after the goods, could get no
information for some time; when mistake discovered and
delivery made, market price had fallen. Held, deft liable for
difference, and for warehouse charges.

Faucerr v. NicHous. 64 .N. Y., 377.

Negligence in an innkeeper under the innkeepers’ act may consist in facili-
tating the commission of arson.

Where the issue in an action against an innkeeper for loss of guest's goods
by fire is whether the fire was an incendiary one, evidence of an incen-
diary attempt in the same neighborhood on the same night is admis-
sible,

Under the innkeeper’s act, (chap. 658, laws of 1866) the burden of proof is on
the innkeeper to show that a fire was of incendiary origin and that he
was not negligent.

Or,

Where a guest is suing an innkeeper for loss of his property by fire in the
inn, the burden of proof under the innkeepers’ act (chap. 658, laws of 1866),
is not on the guest to show that the fire was incendiary and the innkeeper
negligent.
1876, | Cases CONDENSED. v7

 

MassoraH v, Deu. & Hun. Can. Co, 64 N, Y., 524.

There is no presumption of law that a person about to crossa railroad track
in a vehicle driven by another fails to look for a train.

It is not error for a court to express its opinion that a railroad company is
guilty of negligence in driving its train through a city faster than the rate
allowed by ordinance, where the question is left to the jury to decide as
one of fact.

It is an open question in this state whether the violation of a municipal
ordinance is, upon the question of negligence, to be regarded as a viola-
tion of a statute.

Plffs intestate killed at deft’s crossing, in a city, riding on
load of hay, driven by another, train travelling faster than
allowed by ordinance, no whistle blown, nor bell rung, scattered
buildings partially obstructed view of track, there were points
on the street where sight of track, up and down, could be had;
when near the track the horses started up suddenly, could not
be checked, no evidence whether deceased looked for a train,
driver did ; court refused to charge that it was to be presumed
that deceased did not look; expressed opinion that deft was
negligent in driving its train through the city faster than rate
allowed by ordinance but left the question to jury to decide.

(Verd. $ 4,000. —Aff at Gen. T.—Aff.)

CorDELLv.N Y. Cent, & H.R, BR. BR. Co. 64 N. Y., 535.

A farm road recently changed by the public authorities into a highway, is
nota ‘traveled public road’’ within the meaning of the act requiring
railroad companies on approaching such to ring bells and sound whistles,
where the provisions of chap. 62 of the laws of 1853 as to notice to the
company of such change have not been complied with.

Piffs intestate, killed at farm crossing by train, no whistle
blown, no bell rung, crossing part of farm road recently
changed into highway laid out that year, used as such bya
few persons, fences and gates not yet removed; whether deft
had been served with notice of the construction of the highway
pursuant to Laws of 1853, chap. 62 disputed; court charged that
failure to ring bell, and sound whistle at this crossing was
negligence.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)
178 Cases CONDENSED. (1876-75.

 

HAYCROFT v. LAKE SHORE & Micu. Souts RB. R. Co.
64 N, Y., 636.

It is a question of fact whether a person is negligent, who, crossing railroad
tracks on a city crossing, looks for trains both ways, stops between two,
tracks fora train to go by on a further track, and is struck by a train on
an intermediate track from behind, which gave no warning and was not
seen.

PIff crossing deft’s tracks, on street crossing, five tracks, had
crossed two, looking both ways, stopped between 2d and 3d
tracks within a foot of latter, for train to pass on 5th track,
struck by tender of backing locomotive on third track, which
had given no signal of its approach.

(Nonsuit—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
for plff.)

MIToHELL v. N. Y. Cent. & H.R, R. BR. Co. 64.N. Y., 655.

It is negligent for a person, who can see an approaching train, and does not
have the attention distracted, to step on a track in front of it.

Or,

A person, who with nothing to distract attention steps on a railroad track in
front of an approaching train, which can be seen, takes the risk.

Plff's intestate killed at deft’s crossing, had crossed two tracks,
was stepping on third, struck by engine, nothing to obstruct
her view nor distract her attention.

(Nonsuit.—Aff. at Gen. T.—Aff.)

 

" Rwer v. WHITE, 65,N. Y., 54.

The fact that an attack by a dog is the first one which the dog has been
known to make, does not excuse his owner from responsibility for the
resulting damages where the owner knew he was of vicious disposition.

Youne v. WEstT. UNIoN TEL. Oo. 65 N. Y., 163.

Suit for neglect to transmit telegram correctly; blank furnished
to plff for message contained as one of the terms of transmis-
sion the clause, deft not liable for damages in any case unless
claim presented within sixty days after message sent ; no claim
presented within said time, except an incorrect claim to an em-
1875.] Cases ConpDENSED. 179

 

ploye who stated he had no authority to receive it; plff’s
messenger took it back and tore it up. Held, clause binding as
part of the contract, and that pltf could not recover.

 

VANDERWIELE v. TAYLOR. 65 N. Y., 341.

An owner of a city lot is not bound to connect it with the sewer.so as to
prevent its natural drainage on to his neighbor’s lot.

ADOLPH v. CENT. PARK, N. & E.R. R. RB. Co. 65N. Y., 554.

Street-cars have not a right of uninterrupted way along their tracks, but
must give vehicles ahead of them a reasonable opportunity to turn out of
their way.

Or,

Vehicles may be driven along the street-car tracks if due regard is paid to
the paramount right of way belonging to the car.

Plff while turning his wagon out of deft’s tracks to make way
for its car, was injured in collision with the car, which was
going rapidly, driver not having his horses under complete
control, plff not getting out of the way in time, and the car not
being slowed up in time.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

GRAY v. SECOND AVE. R. R. Co. 65 N. Y., 561.

Itis negligent for a person in charge of a carriage and horses at a standstill
in a street not to watch the street.

Plff's carriage injured in runaway, horses frightened by snow-
plough sweeping by on deft’s track; it was standing at hack
stand next to sidewalk, in charge of driver, driver standing on
sidewalk near open door of carriage, reading newspaper, not
holding reins, did not observe approach of plough, a driver of
another carriage near by saw plough approaching, went to
his horses’ heads; court refusing to nonsuit, charged that the
only damages recoverable, if deft was found negligent, were
those sustained from mud and snow flung through open door.

(Verd. 6 cts.—Aff. at Gen. T.—Aff. on the ground that
the only error, if any, was i+ efusal to nonsuit.)
180 Cases ConDENSED. [1876.

 

Ropinson v. N. Y. C, & H. R. BR. R. Co. 66 N. Y., 11.

The negligence of a person managing a vehicle cannot be imputed as con-
tributory negligence to an occupant of it, where there is no relation of
master and servant, or principal and agent, between them.

Plff injured at deft’s crossing, through its negligence, was
riding in a buggy, upon its owner’s invitation ; court charged
that if deft was negligent, and plff was free from negligence
herself, she was entitled to recover, although the driver might
have been negligent. Injury, arm broken.

(Verd. $1,750.—Aff. at Gen. T.— Aff.)

SAUTER v. N. Y. C. & H. BR. R.R. Co. 66 N. Y., 50.

The sudden jerking of a train, while a passenger is rightfully passing out of
the car to alight, is negligence.

When death is certain to result from an injury, unless prevented by proper
medical treatment, improper medical treatment causing death is not to
be regarded as making the former its remote cause.

Plff's intestate, passenger, passing out of car to alight at a
station, injured by sudden jerking of train, causing her fall,
strangulated hernia resulted, certain to end in death unless
relieved by surgical operation; operation had, in which a mis-
take—demonstrated at post moriem—was made, causing death ;
court charged that if death were produced by the mistake of
the surgeon, deft was not liable.

(Verd. $4,000.—Aff. at Gen. T.—Aff.)

Nore.—Under the charge, it must be taken that the jury found that death
was not produced by any mistake of the surgeon. The ruling in the second
head note would therefore, strictly speaking, be an obiter dictum, but for
the fact that if the law were not so, the verdict should have been set aside
as against the law as laid down by the court.

GouLD v. Boorn. 66 N. ¥., 62.
Commissioners of highways are not liable for the, “neglect of their
“predecessors. i

Commissioners of highways when grading a highway owe’ no duty to ad-
joining owners to provide a channel for drainage of surface water. 3
1876. ] Cases CONDENSED. 181

 

Kine v. N. Y. C.& H. BR. R.R. Co. 66 N. Y., 181.

The owner of a machine, furnished by him to another for the latter’s use,
owes no duty to the latter’s servants to keep it in repair, in the absence
of any agreement to do so.

The owner of a machine, furnished by him to another for the latter’s use
under an agreement to keep it in repair on being notified of its need of
repair does not, in the absence of such notice, owe to the latter’s servants
who have no knowledge of the agreement any duty of keeping it in
repair.

Plff, employe of a contractor, unloading rails from a boat to
a car on deft’s track, injured by breaking of a hook on deft’s
derrick, derrick furnished for this purpose in good condition by
deft to contractor, whose contract with deft was to unload the
rails for so much per rail, deft to furnish the derrick; duty of
repairing the derrick was disputed, deft claiming that it was to
repair on notice of need by contractor, and no notice given ;
court charged that in absence of any agreement as to repair,
deft was bound to repair, if the agreement were as deft claimed,
and no notice given, yet it was liable if plff had no knowledge
of the agreement. Injury to head, impairing sight and hearing.

(Verd. $4,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Sutton v. N. ¥Y. Cent. & H. RB. BR. R. Co. 66 N. Y., 248.

A railroad company owes no duty to persons, having a license to cross its
tracks at a point not on the highway, to keep the brakes of detached cars
on side tracks, where the grade isslight, set soasto keep them stationary.

Pliff’s intestate killed at a path-crossing, path nota public way,
but used by public under implied license from deft, was run
over by some freight cars ‘‘ kicked” from a train on to aswitch,
brakeman failed to properly set the brakes before leaving them,
slight grade, ran back, being started by jarring of ground by
passing train, deceased waiting for train to pass, stepped back
on the switch without noticing the freight cars bearing down on
him ; no instance of a car thus running back on this switch had
been known before, daily practice to ‘‘kick” the cars off upon
it, customary to set the breaks before leaving them.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)
182 Cases CONDENSED. (1876.

 

SmitH v. Tae Mayor, &c., or NEw York. 66 N. Y., 295.

A municipal corporation is not liable for the damages resulting from the
overflow of a sewer due to a casual obstruction, where it is pruperly
built and in good repair. ‘
Plffs premises flooded by overflow of deft’s sewer, caused by

stoppage, from sand and refuse washed into it from the street

by unusually heavy shower ; sewer properly constructed, not
out of repair.

(Nonsuit.—Aff. at Gen. T.— Aff.)

Notr.—Suppose the theory had been presented that the city was negli-
gent in not keeping its street free from this accumulation of sand and
refuse, and that such clogging of the sewer was an expectable result of an
expectable rain.

BLaAir v. ERIE RAILway Co. 66N. Y., 313.

A contract to carry a person free, assuming no liability in the matter, is not
sufficient to free a carrier from liability for the consequences of its
negligence.

Plff's intestate riding on deft’s train as express messenger, in
place of regular messenger, killed in negligent collision; contract
between deft and deceased’s employer, contained clause that
the railway company would carry free of charge the express
company’s money safes, contents and messengers, assuming
no liability whatever in the matter.

(Verd. $4000, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
ord. on verd.—Aff.)

CLEMENCE tv. CITY OF AUBURN. 66N. Y., 334.

Constructing a sidewalk in a city street witha grade so steep that passers-by
are likely to slip on it, is, where the natural grade does not require it,
negligence.

Plff injured while passing along deft’s sidewalk, at a spot
where grade had been changed, different levels, connected by
stone on steep slant, covered by light fall of snow, she slipped.
on it.

(Nonsuit.—Rev. at Gen, T. new tri. ord.—Aff. judg. absol.
agst. deft.)
1876. ] Cases ConpDENSED. 183

 

MILLIMAN v. N.Y. C.& H.R. R.R. Co. 66 N. Y., 642.

A common carrier owesa duty toa drunken passenger not to jerk its train
‘while he is getting off at station where it has stopped.

Plff passenger, intoxicated, passing out of deft’s car at a
station after it had stopped, thrown down by sudden jerking of
train. Injury, arm cut off, two ribs broken, head and thigh:
injured.

(Verd. $5,000.—Aff. at Gen. T.

 

Aff.)

Farrrax v. N. ¥.C. & H.R. R,R. Co. 67 N. Y., 11.

Plffs baggage carried by deft to journey’s end, placed in its
baggage room, seen two days after, missing when called for on
third day; did not appear there had been any burglary,
orlarceny, or other baggage missing. He/d, prima facie evidence
of negligence, deft liable as warehouseman.

Mauer v, Cent, P., N. & E.R. R.R.Co. 67 N, Y., 52.

Itis not negligent in young boy to get on the front platform of a street-car
in obedience to the directions of its driver.

Piff, boy of 10, passenger, was getting on front platform of
deft’s street-car, in obedience to directions from driver, injured by
starting of car, through driver whipping the horses. Injury,
foot amputated.

(Verd. $5,800.—Aff. at Gen. T.—Aff.)

 

SPINNER v. N. Y. C. & H. RB. B. R. Co. 67N. Y., 153.

Where a farm-gate, erected by a railroad company under the statute to
enable a farmer to pass to a portion of his farm beyond the tracks, is used
during the day by the company and its customers for its and their con-
venience, the company must see that it is closed when the day’s busi-
ness is done.

Negligence cannot be imputed to an owner of cattle merely from the fact
that his cattle have escaped from his well-fenced field.
184 CasEs ConDENSED. [1876.

 

Byryes v. CITY oF CoHors. 67 N. Y., 204,

Where the necessity for drainage is created by the act of a municipality, the
rule that it is not liable for an omission to supply drainage does not
apply.

A municipality must not construct its guttérs so that they will cast water
on an adjoining lot.

SLOMAN v. GREAT WEST. Ry. Co. 67 N. Y., 208.

The owner of merchandise, checked as baggage upon a ticket of another
person, may recover from the carrier for its loss where the carrier has at
the time notice that it is not baggage and receives an extra compensation
for carrying it.

Where at the time a passenger checks trunks, the carrier has notice
that they do not contain baggage, and charges and receives compensation
for carrying them, a contract to carry them as freight may be inferred.

The negligence of the carrier is in such a case immaterial.

Plffs son, commercial traveler for his father, checked as
baggage trunks containing samples of plffs merchandise,
baggage master had notice that they did not contain ordinary
personal baggage, lost through “gross negligence.” Recovery
sustained.

 

JuTtTe v. HucHEs. 67 N. Y., 267.

A person, who does anything on his own premises, which results inaccumu-
lating water thereon, must take steps to prevent such accumulation from
draining on to his neighbor’s land.

VicTorY v. BAKER. 67 N. Y., 366.

An owner of land is under no duty to persons, who enter his premises by
entrances through which he does not invite them, to have excavations in
them guarded,

Or,

Though a person may enter private premises on business by permission,
yet if he enter through forbidden entrances and by reason thereof falls
into an excavation, a recovery may not be had for the resulting damages.

Or,

A man has the right to decide how other persons may enter his premises,
and he need only make them safe for those who enter as he directs.

PIff's intestate, killed by falling into a saltpetre vat on deft’s
premises, had come under instructions of his employer to pay a
bill latter owed to defts, proper entrance for persons on busi-
1876.]° Cases ConDENSED. 185

 

ness was in front at main door of building, where was sign ‘“‘no
admittance except on business”; other doors of entrance
had sign ‘‘no admittance”; at main door, a person was
usually in attendance to admit persons on business ; deceased
crossed a canal atrear of premises, entered by a door, through
which deft’s workmen were in the habit of going—other persons
also occasionally—walked along passage at side of vat, passage
wide and light.
(Verd. $3,250.—Aff. at Gen. T.—Rev. new tri. ord.)

RYALL v. KENNEDY. 67 N. Y., 379.

(Erroneously reported as Kennedy v. Ryall.)
The master of a ship is the superior of all persons in the service of the
ship.
It is not negligent in a passenger on a ship to take herchildren back to their
cabin shortly after a fumigation, if directed to do so by the steward in
charge.

Plff's intestate, child of five, passenger on board steamship,
of which deft was a captain, died from drinking poison out ofa
panniken; ship boarded at quarantinein N. Y. harbor by health
officer, who ordered all the passengers out of steerage cabins on
deck, smallpox on board, ship fumigated, poisonous substance
distributed in cabins and steerage, put in the basins and passen-
gers’ pannikens, about an hour after health officer left steward
ordered deceased’s mother with her children back to their cabin,
shortly after drank out of a panniken which the steward had
neglected to cleanse.

(Nonsuit.—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
agst. defts. )

McGovern v. N. Y. ©. & H.R. B,R. Co. 67 N. Y., 417.

Whether it is negligent for a child of tender age to omit to look for a train
at a crossing depends on the circumstances.
Whether itis negligent to back an engine, whose tender obscures the track,
over acity crossing at the rate of eight miles an haur, is a question of fact.
When the administrator of a minor is the person who would be entitled to
the minor’s services until majority, he may if he so elects recover
damages for loss of service as part of the pecuniary loss to the next of kin
_. (on the assumption that Ford v. Monroe, 20 Wend, 210 was correcfly
decided).
186 Cases CONDENSED. [1876.

 

Plffs intestate, boy of 8, going to school, killed at deft’s
crossing, had waited for freight train to go by on further track,
as its rear reached the centre of the street, he started across an
intervening track by a diagonal snow path, struck by a backing
engine, view of track in that direction obstructed by house
close to track, flagman near by gave no warning, coal on
tender piled so high as to prevent view of track by engineer,
engine going eight miles an hour, could not be stopped readily
when backing because sand-pipes not placed to advantage
for backing, deceased omitted to look along track before
stepping on it, crossing in a populous part of city; plff was
deceased’s father as well as adm’r ; deft’s counsel requested this
charge: ‘‘inasmuch as the father is entitled to the services of his
son until he becomes of age, the earnings which he might have
made during his minority are not to be considered ;” refused.

(Verd. $2,500.—Aff. at Gen. T.—Aff.)

Notz.—The matter in parentheses in the second head-note is an element
in this rule, because the courtexpressly bases its ruling on that assumption.
Whether a father can recover for loss of service by reason of death of his

child, as held in Ford v. Monroe, was not up here for review, the counsel's
request having assumed that he could.

DITCHETT v. SPUYTEN Duyvit & P. M. BR. R. Co.
‘67 N. Y., 425

A landlord who has let his premises in good condition is not responsible for
the neglect of his tenants to keep them so.

The provisions of the general railroad act as to fencing were not intended
for the protection of travelers along adjacent highways.

PIff's intestate, passing along avenue, dark night, fell into rail-
way cut, fence guarding it out of repair, railroad belonged to
deft, but was leased by it to another company, latter had
allowed the fence to get out of repair ; court refused to charge
that if the omission to maintain the fence was on the part of
deft’s lessee, it was not liable.

(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord. )

 

WEBER v. N. Y. ©. & H.R.R.R. Co. 67.N. Y., 587.
(Ist Appeal. 58N. Y. 451.)
A jury is under no duty to find that signals were given at a crossing, because

affirmative evidence that they were given is only opposed by evidence of
witnesses that they did not hear them.
1876. ] CaSES CONDENSED. 187

When a man is crossing several tracks, and has stopped and listened and
heard no sounds of an approaching train, his omission on reaching a
particular track to look for a train on it is not necessarily negligent,

During the charge, court stated it had no doubt that the
signals were given at the crossing as testified to; some wit-
nesses had sworn that bell rang, others that they did not hear
it, although in position to hear ; court refused to charge that it
was duty of jury to find that the bell was rung; plff testified
that on approaching the crossing he stopped, listened, heard no
bell, whistle, nor rumble of train, nor anything threatening, and
went on; court left to jury the questions whether he could have
seen the train, whether he should have looked, whether negli-
gent in not looking; refused to charge, that if by the ordinary
use of his faculties he could have ascertained the approach of
a train before he reached the fourth track, his omission to doso
was negligence.

(Verd, Snes, at Gen, T.—Aff.)

Boots v. Bost. & AuB. KR. R. Co. 67 N. Y., 593.

Negligence in sending out too quickly a train to follow another train can
not be inferred in the absence of evidence as to how much time elapsed
between their departures.

PIff injured in same accident as that of the Flike case, 53 N.
Y., 549; Sprong case, 58 N. Y., 56. PIff engineer on the fol-
lowing train; court sent case to jury with instructions among
other things, to find for plffif they found deft guilty of negli-
gence “in sending the train upon which plff was engineer to
follow too quickly the preceding train”; no evidence of time
actually elapsing between departure of the two trains. Injury,
back and leg injured.

(Verd. $5,000.—Aff, at Gen. T.—Rev. new tri. ord.)

Ginna v. SECOND AVE. R. R. Co. 67 N. Y., 596.

It is not negligent for a passenger to ride with the assent of the conductor
on the platform of a crowded street-car.
A passenger riding on the platform of a street-car is not bound to hold on

“to the railing.
188 Cases CONDENSED. {1876-77.

 

Plff's intestate, riding on the platform of deft’s car, without
objection from conductor, who took his fare, car crowded, thrown
off by violent jolt due to negligent driving, did not appear that
he had hold of the railing. “

(Verd. $3,000.—Aff. at Gen. T.—Aff.)

Macav.ey v. Mayor &c. or NEw YORK. 67 N. Y., 602.
The fact that a horse gets fora moment out of the control of his driver as a

result of a defendant’s negligence, does not relieve the defendant from

liability for damages occurring to the horse while thus out of control.

Plffs horse drowned, driver on pier, half of pier owned by

deft, horse frightened at seeing water through hole in deft’s half
pier out of repair, backed up against the string piece which
being decayed gave way, horse and cart overboard.

(Verd. for plff.—Aff. at Gen. T.—Aff.)

Nore.—Upon the point so often urged by codifiers that judge-made law
is ex post facto, (which they mistakenly claim that a code would avoid) it will
be interesting to read this language of the court in referring to one of the
requests to charge, ‘‘To have made the request conform to our views as
herein expressed, it should have asked, etc.”

Finer v. N. Y. Cent. BR. R. Co. 68 N. Y., 124.
(Ist Appeal. 49.N. Y., 47).
(2d * 59 ‘* = 851).
No change in the facts.
(Verd. $12,000,.—Aff. at Gen. T.—Aff.)

BeEcK v. CARTER. 68 N. Y., 283.

If a person allows his premises to be used by the public as a highway, he is
under the duty of keeping them safe for travel.

Ory
He must guard any excavations that he may make in them.

Plff at night fell into unguarded excavation made by deft’s
testator (the original deft) in an open space in front of hotel,
which stood at corner of an alley, open space used by public
with his consent as a highway, for several years, called Ex-
change Place. Injury to side and leg.

(Verd. $351.—Aff. at Gen. T.—Aff.) >
1877. ] Cases ConpENsED. 189

 

CLEVELAND v. NEW JERSEY St. Co., 68 N. Y., 306,

A common carrier is not bound to foresee and guard against the results of
the conjunctive occurrence of incidents, no one of which in itself would
have been sufficient to produce an injury to a passenger.

Or,

When fastenings for safety on a common carrier’s ,vehicles are tampered
with by an unauthorized person, the carrier is not liable for the result
when happening before discovery.

Or,

It is not negligent to allow. a steamboat to leave her dock before the gang-
way opening has been secured.

Plff fell overboard from deft’s steamboat; boat had left dock,
gate to close the gangway opening had been put in place, mate
was getting the stanchion to support it, some persons in
trying to get ashore fell overboard, cry raised, rush of passen-
gers to that side, plff was pressed against the gate, it gave way,
having been lifted out of place by some unauthorized person.
Injury to chest and side.

(Report $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Notre.—The head-notes have been stated in the alternative, because it is
difficult to say what this decision really holds. A great deal of criticism is
indulged in against reporters, in which the author has joined, because in the
syllabus, they so often state the facts, andadd ‘“‘Held”, &c. Ifanything could
justify this practice, it would be found in cases of difficulty, where it is
hard to say exactly what was decided, beyond the fact that the defendant
was not liable on the facts.

The only negligence found by the referee was in leaving the gangway
opening without full and proper protection after the boat had left her dock,
that is, that she ought not to have left her dock before the guard at the
gangway had been securely fastened. The reversal necessarily implied
that it was notnegligence to thus leave the dock. The court, however, does not
discuss that propositionatall. But because theseveral factors in this accident,
mate getting the supporting stanchion, persons trying to leap ashore fall-
ing in water, rush of passengers, some excited passenger lifting the guard-
rail out of place, presumably to save life, plaintiff pressed against it and
pushed in the water, because these things never concurred before in
producing an injury, and were not expectable, the. carrier was not guilty of
negligence in not foreseeing them!!! Against such logic few verdicts could
stand. Who can foresee how any accident is going to happen?

If the mate had not gone to get the stanchion, and the boat had proceeded
on her way, and hours afterwards plaintiff had fallen overboard, because
the guard had given way, being insecurely fastened, certainly an inference
of negligence would be warranted. :

A boat is bound to have proper guard:rails. Herice the question was, was,
she negligent in leaving her dock before she had had her guard-rails securely :
fastened so as to prevent any accidents to passengers by‘its giving way. (In

125.N. Y., 299, this point is passed on.)
190 Cases CONDENSED. (1877.

Horrman v. Unton Ferry Co. 68 N. Y., 385.
(Ist Appeal. 47 N. Y., 176.)

Whether it is more prudent for a vessel caught in a fog in a harbor to lie to
or proceed cautiously is a question of fact,

Facts as before, except (1) additional evidence to show a de-
parture from law of the sea, on which there was a conflict of
evidence, which was left to jury, (2) a fog came up as plff’s boat
passed through the harbor.

(Verd. for plf._—Aff. at Gen. T.—Aff.)

Bairp v. Daty. 68 N. Y., 547,
(Ist Appeal. 57 N. Y., 236.)

Evidence of defendant’s actions after an accident as showing greater care,
is not admissible to prove that a want of care produced the accident.

Upon the issue of scawor‘niness of a boat, evidence of its former sinking
is admissible.

Upon the issue ©. ,»eawortuiness of a boat, expert evidence that she was
unfitted and unsafe for the service in which she was engaged is admissible.

On new trial, plff was allowed to show, after the accident
deft towed at less rate of speed; deft not allowed to show that
the boat had sunk several times before, this on issue of unsea-
worthiness ; deft not allowed to give expert opinion that she
was not seaworthy.

(Verd. for plff.—Aff. at Gen. T.—Rev. new tri. ord.)

TWOMLEY v. CENT. PARK N.& E.R. R. R. Co. 69 N.Y., 158.

When a person, confronted by impending danger, chooses a means of
escape, which persons of ordinary prudence might choose, the fact that
he would not have been injured, if he had remained still, does not prove
him to have been negligent in endeavoring to escape.

Where several persons are confronted by impending danger, what they do,
in endeavoring to escape it, is admissible to show what was deemed

prudent to be done.

Plff, passenger, injured in jumping from deft’s car in order
to escape an apparently imminent collision between it and an
express train, in front of which the car driver was negligently
attempting to cross; other passengers jumped also; it turned
1877. | Caszs ConDENSED. 191

out that plif would not have been hurt had he remained in the
car, asit pot over safely, engineer reversing his engine. Injury,
leg broken.

(Verd. $5,000.—Aff. at Gen. T.— Aff.)

Evans v, Ciry oF UTiIca. 69 N. Y., 166.
It is not negligent for a person to walk carefully on ice on a sidewalk.

Plff fell on deft’s sidewalk, night, slipped on ice, using care
of person of ordinary prudence. Injury, leg broken.
(Verd. $2,000.—Aff. at Gen. T.—Aff.)

CoHEN v. Dry Dock BE. B. & B. R, R.Co. 69 N. Y., 170.

A master who puts a servant in a place of trust or responsibility or commits
to him the management of his business or the care of his property, is
responsible for an injury inflicted by the servant upon another person
through lack of judgment, or discretion, or infirmity of temper or under
the influence of passion, aroused by circumstances and the occasion.

Or,

A master is responsible for a willful injury inflicted by a servant, when it is
dorie in a heat of passion to further the master’s business.

PIff driving his buggy on deft’s track, upset by car driven
against it, its progress blocked by other vehicles, car driver lost
his temper at being detained, and desiring to make up lost-
time, told plff if he did not get off the track, he would get him
off, and started up his horses.

(Nonsuit.—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
agst deft.)

 

Eprenporr v. B’KLYN Crry & N.R. R.Co. 69 N. Y., 195.

It is ordinarily a question of fact whether itis negligent for a person to
board a slowly-moving street-car.

Evidence that a person has been in the habit of jumping on cars while in
motion is inadmissible in an action for an injury received while so doing.

Piff passenger, boarding deft’s open car, by platform at its

side, driver slowed up, did not stop, car moving slowly, while
plff was getting on, driver though looking at him let go the
192 CasEs CoNDENSED. [1877.

 

brake, car started up with jerk, causing plff’s foot to slip, and

get under car; proof that plff was in the habit of jumping on

deft’s cars while in motion excluded. Injury, foot crushed.
(Verd. $1,500.—Aff. at Gen T.—Aff.)

ALLEN v. WILLIAMSBURGH SAV. BK. 69 N. Y., 314,

When a person presenting a depositor’s book at a savings bank to draw
money is of a different sex from that of the depositor named therein, a
bank which has promised to use its best efforts to prevent fraud must
not pay the money without inquiry.

CAMERON v. SEAMAN. 69.N. Y., 396.

The neglect of trustees of a manufacturing corporation to file their annual
report within twenty days after the first of January, does not subject
them to the penalty for failing to make, publish and file it within twenty
days, where it was made within that time, and published and filed within
a reasonable time thereafter.

Arotic Frre Ins. Co. v. AusTIN. 69 N. Y., 470.

An insurance company, which has paid a loss insured against, is subrogated
to the right of action of the insured against a person whose negligence
caused the loss.

It is negligent for the master of a boat to omit to place a light on her at
night.

The negligence of the master of a boat in her management is imputable to

‘the owner of her cargo in an action to recover for damages caused to
the cargo by the negligence of another.

PIff insured cargo of corn on canal boat, towed by deft’s
tug, run into by another tug of deft, night, no watch on canal
boat, nor light, towage contract provided that the towing was
done at risk of owner of canal boat; plff paid the loss.

(Verd. for plff—Aff. at Gen. T.—Rev. new tri. ord.)

ROBINSON v, CHITTENDEN: 69 N. Y., 525.

Suit fornon-delivery of trunk shipped by deft's vessel ; vessel
chartered by others for the voyage, to be victualled, manned,
sailed at owner’s expense, charterer’s freight clerk gave pif
1877. ] Cases CONDENSED. 193

 

receipt for trunk, no bill of lading given, not entered on mani-
fest, nothing to show master that it was distinguishable from
other part of cargo, which was consigned to consignees of
charterer ; on arrival at destination trunk delivered to the con-
signees of the charterers. He/d, owners of vessel not liable.

WEHLE v. CONNER. 69 N. Y., 546.

In an action against a sheriff for neglect to return an execution within sixty
days, it is a mitigation of damages that he had during its life received an
attachment against the execution creditor. (1st Appeal, 63 N. Y., 258.)

DeForest v. Crry oF Utica. 69 N. Y., 614.

Evidence of the condition of premises a few days after an accident is
admissible.

Expert evidence that any increase of pain at child-birth was due to a mal-
position of the child, which might have been a result of the accident, is
admissible.

PIff fell on sidewalk, out of repair, evidence of its condition
two days after the accident admitted; plff was pregnant when she
fell, she felt, as she expressed it, as if her ‘‘inwards turned
upside down”; expert evidence admitted, increased pain at child-
birth due to mal-position of the child which might have been
caused by the fall. Injury, ankle sprained and increased pain
at childbirth.

(Verd, $1,000.—Aff. at Gen, T.—Aff.)

LEONARD v. CoLuins. 70 N. Y., 90.

A person is not bound to do everything he can to prevent an accident.
A servant cannot rely upon his master’s promise to give warning if he sees
anything which shows that the promise has been broken.

Pliff’s intestate, killed by fall of earth, employe of deft, remov-
ing bank of earth, frozen at top, deceased working at bottom,
top partially overhanging, was told by deft that the bank would
not be cut away for half an hour; relying on that he continued
working; a few minutes after, deft in violation of promise or-
dered top to be cut away, fell; court charged that if deft could
194 Cases CONDENSED. [1877.

 

have done anything that could have prevented the accident, he
should have done it; refused to charge thatif the deceased saw
men on the bank cutting it down he could not recover on the
theory that he had no warning.

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

LAMBERT tv. STATEN ISLAND R. R. Co. 70 N. Y., 104.

Sail boats are not vessels within the provisions of the New York statute,
and harbour regulations as to vessels exhibiting lights and anchoring at
nignt,

The omission of a boat, at anchor, to cut the anchor rope to avoid a collision
is not necessarily negligent.

Pliffs intestate drowned, was in open sail-boat, anchored at
night off Governor’s Island, in track of deft’s ferryboat, which
proceeding at unusual rate of speed ran her down, deceased
knew he was in ferry track, lantern on seat in front of mast,
seen six hundred feet off by passengers on the boat; deceased
did not cut his anchor rope; harbor master’s regulations
provided that no vessel should be anchored within certain
limits, there was evidence that the sailboat was anchored
within them; court refused to charge that ifshe was so anchored
plff could not recover; Laws of 1829, chap. 314, extended to
the place in question the provisions of the Rev. Stat. requiring
masters of vessels anchoring at night to lower their peak
and show light in rigging 20 feet above deck, sailboat had no
deck, no rigging 20 feet high; court refused to charge that if
the failure to exhibit a light 20 feet above deck contributed to
the accident must find for deft.

(Verd. $3,000.—Aff. at Gen. T.—Aff.)

Hays v. MILLER. TON. Y., 112.

‘Whenever men of ordinary prudence and discretion might differ as to the
character of an act under the circumstances of the case, the question
whether it was a negligent act is one of fact.

A person who burns his fallow land in a negligent manner is liable for the
damages resulting to a neighbor from the fire spreading on to the latter’s
land.
1877. | Cases ConDENSED. 195

CorpDELL v. N, ¥.C. & H. R. R. R. Co. 70 N. Y., 119.
(Ist Appeal. 64.N. Y., 535.)

It is not negligent for a railroad company to place anything near its cross-
ing which obstructs the view of its track.

Or,

Obstructions to the view of the track at a railroad crossing are only material
upon the questions whether the company and the injured person have
each used due care at the crossing, the one in the management of its
train, the other in attempting to cross.

 

The new question on this appeal was upon the judge’s charge,
leaving to the jury to say whether it was negligent in the deft
to pile the debris so near its track at a crossing used by the
public that a person could not see a train until it was upon him,

(Verd. $5,000.—Aff. at Gen, T.—Rev. new tri. ord.)

McALPIN v, POWELL. 70N. Y., 126.

A landlord is under no obligation to keep the fire escapes of his tenement
house safe for any other purpose than escape in case of fire.

Plff’s intestate, boy of 10, killed by falling through trap-door
of fire-escape of deft’s tenement; boy’s father rented the floor,
occupied room opposite fire escape as a workshop, servant of
father working there, had charge of boy, permitted him to sit
on the window-sill with feet resting on fire-escape platform,
trap-door held in place by piece of wire and string, its hinges
having rusted, gave way; the fire escape not intended to
be, nor was, used as a balcony, children were not accustomed
to go on it.

(Verd, $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Tone v. THE Mayor &c. or N.Y. 70 N. Y., 157.

The City of New York is not answerable for the negligence of the members
of the Board of Revision and Correction in failing to confirm an assess-
ment.

BesEx v. N. Y. ©. & H. R.R. BR. Co. 70 N. ¥., 172.

A railroad company having employed a sufficient number of trainmen to
handle its trains, is under no obligation to see that they are attending to
their duty.

Or,
196 Cases CoNDENSED. [1877.

 

A railroad company is under no obligation to a car repairer, repairing cars
of a train on its repair track according to custom, to take measures to
protect him from accident by the descent against him of other cars.

Or,

The negligence, if any, in failing to station a brakeman at the rear of that
portion of atrain which is being removed from another portion left
standing for repair, is that of a co-servant.

Plff’s intestate, a car repairer, killed while repairing car at
end of train of forty-nine cars, run at end of trip as usual on to
repair track for inspection and such repairs as could be done
on the track; repaired cars, disconnected from rest of train,
were being drawn off by an engine, coupling pin broke, grade
descending, cars ran back against those left behind, deceased
under one of latter, run over ; the negligence claimed was not
enough brakemen to run train from repair track, and no brake-
man at rear of departing cars, who if there, could have stopped
the fugitive cars ; it was not claimed that deft had failed to em-
ploy enough brakemen nor that those whose duty it was to
attend to this business were unskillful.

(Verd. $4,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Woop v. N.Y. C. & H. BR. R. R.Co. TON. Y., 195.

Whether an engineer of a train which has the right of way at a crossing of
two railroads was guilty of negligence in failing to comply with a signal
to stop, intended for him, but which he might have thought was intended
for a train which did not have the right of way, is a question of fact.

Failure to obey a rule which was made to prevent an accident is admissible
on the question whether an accident was the result of negligence.

Plff's intestate, engineer on Alb. & Sar. Railroad, killed in a
collision between his train and deft’s train at a crossing of the
two tracks ; by agreement between the companies, deft’s trains
were to come to full stop before crossing, the others had right
of way without stopping ; deft’s rules provided that all its trains
were to stop, and engineer not relieved from blame if he failed
to stop even though ordered to do so by the conductor ; a depot
of the Alb. & Sar. road at the point, its agent was in deft’s em-
ploy as telegraph operator and flagman, he knew deceased's
. train, behind time, to be approaching ; dett’s train slowed up
to stop, flagman signalled it by white flag to proceed, which it
did ; discovering deceased’s train approaching, flagman went
1877. | Cases CONDENSED. 197.

 

up the Alb. & Sar. track and waved red flag for latter train to
stop, then returned to the crossing and waved white flag again
for deft’s train to proceed, deceased’s train not stopping he
waved red flag to both, too late to prevent collision.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

MAGNIN v. Dinsmore. 70 N. Y., 410.

(Ist Appeal. 53 N. Y., 652. On ques. of practice only.)
(2d Appeal. 56N. Y., 168.)
(3d 62 * 35.)

No new facts. Court charged that in no event was plff en-
titled to more than $50 and interest. edd, that the neglect or
other act which will deprive the carrier of the benefit of a con-
tract for limited liability fairly made for the carriage of goods,
must be more than mere omission of ordinary care.

Ham v. THE Mayor &c. of N. Y. 70 N. Y., 459.

The municipality of New York City is not responsible for the negligence
of officials appointed by its Department of Public Instruction.

Or,

It is not the superior of the officials in its Department of Public In-
struction.

Plff's stock in trade in wareroom, injured by foul water running
on it, from defectively constructed water closets in upper part
of same building occupied as a school, under lease by Board of
Education of City of New York, that Board had been a corpora-
tion, its powers and duties had become, by Laws of 1871, chap.
574, § 7, vested in the Department of Public Instruction, created
thereby as a branch of the government of such city.

(Verd. for plff excep. to be heard at Gen. T.—Excep. sus-
tained at Gen. T. new tri. ord.—Aff. judg. absol. agst plff.)

WILson v. Knapp. 70N. Y., 596.

Plffs barque injured in negligent collision with ferryboat
owned by deft’s testator; main question was whether plff was
‘owner or not.
198 Casrs CoNDENSED. (1877.

 

Lanican v. N. Y. Gas Lieut Co. TIN. Y., 29.

Striking a light in ‘a cellar in which gas is known to escape and which has.
been closed several days, warrants a finding of negligence, even though
prior visits with a light have not resulted in an explosion.

Piff's goods damaged by explosion of gas in his cellar,. deft
had supplied the gas, on notice from plff had discontinued it,
removed meter, undertaken to close service pipe, negligent,
gas escaped, plff notified deft, it promised to fix it, failed to do
so, plff sent servants into cellar to tap a barrel, cellar closed
for five days, lighted match, explosion; cellar had been visited
with light before while gas escaped, no explosion followed.

(Rep. for deft, finding of fact plff guilty of contrib. neg.—
Rey. at Gen. T. new tri. ord.—Rev. judg. on rep. aff.)

Warp v. ATLANTIC & Pac. Tex. Co. 71 N. Y., 81.

A telegraph company is not bound so to make or manage its line as to.
guard against storms of unusual severity, the occurrence of which could
not be reasonably expected.

Plff’s intestate, the original plff injured by fall of deft’s tele-
graph pole after storm of unusual force; whether pole originally
defective, or had become so by decay was left to jury as a dis-
puted question of fact; court refused to charge, “that deft was
not bound so to make or manage the line as to guard against
storms of unusual severity, the occurrence of which could not
be reasonably expected.” Injury, shock and nervous prostration.

(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord.)

(NoTE.—Whether a company is bound to have its poles safe against
storms, which though unusual, can be reasonably expected is not decided by
this case. In stating the rule of this case, the language of the request, the
denial of which required the reversal, has been followed. Every winter

severe storms occur. What is the measure of a company’s duty as to.
such?

MYNARD v. SyRAcusE, Bina. & N. Y. R. BR. Co.
71 N. Y., 180.

Piffs steer lost while in eons through deft’s negli-
gence ; contract of shipment contained clause releasing deft
‘‘from all claims, demands and liabilities of every kind and
character whatsoever for or on account of or connected with
1877. ] Caszs ConDENSED. 199

 

any damage or injury to or loss of said stock or any portion
thereof, from whatsoever cause arising.” Held, loss through
deft’s negligence not included and deft liable.

DYER v. ERIE RaILway Co. 71 N. Y,, 228.

Jumping from a wagon to avoid imminent danger is not necessarily

negligent.
It is error to leave to a jury to say what signals of an approaching train

should have been given to a traveller at a crossing in a particular case.

Plff injured at deft’s crossing, in a village, riding at rear of
wagon, on invitation of driver; buildings intercepted view of
train, which had been standing, began to back over crossing
without warning; horses frightened by blowing off of steam,
became unmanageable; plff was thrown, or jumped off of
wagon, injured by the backing train; court charged that
the jury were to decide what signals should have been given
by deft. Injury, foot injured.

(Verd. $1,000 exc. at Gen. T.—-Exc. overrul, at Gen. T. judg.
ord, on verd.—Rev. new tri. ord.)

Doan v. DEL. & Hup. Can, Co. TIN. Y., 285.

Where a flagman is stationed by a railroad company at a crossing to warn
travellers of approaching trains, his omission to properiy perform such
duty is imputable to the company as negligence.

Where a traveller takes some precautions at a railroad crossing, which
betoken care on his part, thé question whether he has taken due care is
one of fact.

Piff injured at deft’s crossing, city street, houses built up to
line of street, obscured view of track except in front, long train
on one track extended across street, except it had been parted
to allow passage, cars on next track obstructed view of ‘third
track, on which train coming ten miles an hour, which could
not-be seen until plff drove upon the track ; he had looked for
train, saw none, listened for signals, heard none, noise in street,
looked for flagman usually stationed there by deft, as required
by city’s ordinance, saw none, did not stop, drove on, struck by
train. Injury, leg broken and hip injured.

(Verd. $2,000.—Aff. at Gen. T.--Aff.)
200 Cases ConDENSED. [1877.

 

MILLER v. Lone IsuaAnpD R. R. Co. 71 N. Y., 380.

Piff’s timbered land and lands of others whose claims were
assigned to him, set on fire by a passing engine on deft’s road.
The question was as to the title to the land.

CouGHuinv. N, Y. Cent. & H. R.R.R.Co. 71 N.Y., 443.

The rule as to non-assignability of interest in a claim for damages has been
superseded as to attorneys by § 66 of Code.

An attorney cannot agree to render services and advance disbursements in
a suit as inducement to a person to place the claim in his hands for
suit.

Plff injured through deft’s negligence; an attorney went to
him and to induce him to put the claim in his hands for
prosecution agreed not only to render services but also to ad-
vance all the money needed to carry on the suit; after suit
brought deft settled with plff, pleaded settlement in bar. (This
was before § 66 of present Code giving attorneys a lien on
claims for torts as well as contracts, but as §§ 73 and 74 of
present code are in substance the same as in former code, the
case is not obsolete.)

(Rep. for deft.—Rev. at Gen. T. new tri. ord,—Rev. judg. on
report aff.)

Notr.—What is here condemned is done all the time, especially in
accident cases, attorneys having ‘‘runners,”’ who run after injured persons,
with coat-tails flying in the wind and cards in extended hand. Lawyers
who will not break the law, nor dishonor their profession and themselves,
are placed at serious disadvantage. Is there to be no end of this? Will

the courts or our bar associations do nothing to break up practices which
are lowering the moral tone of the bar?

WoostTER «. 42D St, So. R. R. Co. 71 N. Y., 471.

The year allowed by § 405 of the Code (old Code § 104) within which to
begin an action, after a reversal in a former action without granting anew
trial, runs from the final decision on the last appeal.

Plff's horse injured through deft’s negligence; eight years
before action begun had sued in City Court, complaint dis-
missed, Com. Pleas had reversed nonsuit, but could not under
then existing provisions of law grant a new trial; deft had ap-
1877-78. ] Cases CONDENSED. 201

 

pealed to Court of Appeals where reversal was affirmed; pres-
ent action brought within one year from last decision, but not
within one year from decision by Com. Pleas.

(Verd. directed for deft—Rev. at Gen. T. new tri. ord. —Aff.
judg. absol. agst. deft.)

TABER v. DEL., LACK. & WEst. KR. R. Co. 71 N.Y., 489.

Where a train on a dark night overshoots an announced station, it is a
question of fact whether the omission of the trainmen to announce to
passengers that it is to back is negligence.

Whether a passenger, who knows that a train is reaching his station, is
justified on a dark night in supposing when it stops that it has reached
the spot where he is to alight, is a question of fact,

Plff passenger, her station announced, train slowed up,
passengers got up to get out, among them plff, she had not
heard the announcement, knew the station less than a mile
from last one, train overshot station, came to a stop, a moment
later without any announcement it started back, threw plff
down, she being in the act of alighting supposing the stop was
at the station, dark night. Injury, head and face lacerated and
left arm cut off.

(Verd. $9,000, exc, atGen. T.—Exc. overrul, atGen, T. judg.
ord. on verd.—Aff.)

CARPENTER v. EASTERN TRANSP. Co. 71N. Y., 574.

Whether due care has been used in properly mooring a vessel, so as to with-
stand an expectable flow of ice, is a question of fact.
An expert cannot be allowed to say whether in his opinion the injured party
omitted to do anything which he might have done to avoid the injury.
Plff's canalboat sunk in collision on its way up the Sound
towed by one of deft’s tugs, moored over night to wharf at Port
Morris, deft’s tugs moored to east of it, sterns to east, insuf-
ficiently moored to withstand ice, which on turn of tide would
come down on them from the east, with wind as well as tide;
when it came, moorings gave way, tugs ran into boat; a wit-
ness for deft was not allowed to answer whether in his opinion
as a canal boatman the plffin any way neglected to do any-
thing which he might have done to save his boat.
(Verd. for plff.—Aff. at Gen. T.—Aff.)
202 Cases CONDENSED. [1878.

 

N, Y. & BKLYN SAwmiItt & LumsB. Co. v. Crry or
BKiLYN. 71N. Y., 580.

Where the Legislature directs the common council of a city to rebuild at the
city’s expense a dock to a water way, which does not appear to be a public
highway, which had been negligently constructed by commissioners ap-
pointed by the Legislature, the municipality is not liable for the damages
sustained by an adjacent property owner by reason of the failure of the
common council to rebuiid such dock.

Briees v.N. Y. Cent. & Hup. R. R.R. Co. 72 N. Y., 26.

A person who negligently allows sparks to escape from a stove-pipe erected
in violation of a city ordinance, whereby a neighbor’s house near by is
set on fire, is liable for the damages.

The amount of insurance on property negligently burned is not admissible
in mitigation of damages in an action against the person whose negli-
gence caused the injury.

Plff’s ice-house burned by sparks from a stove-pipe placed

by deft in switchman’s watch-house, in violation of city ordin-
ance; evidence that it was insured excluded. (Verd. for plff—aAff)

 

WEEKS v. N. Y., N. Hav. & Hart. R. R. Co. 72N.Y., 50.

A common carrier is under no duty to protect its passenger from the rob-
bery of valuable securities, which he may choose to carry on his person
during his journey.

PIff, passenger, bonds stolen from him in deft’s car; car un-
attended by any trainman, being driven through streets of a
city; robbers jumped aboard, robbed plff, jumped off. (Verd. for
plff. exc. at Gen.T. —Exc. sust. at Gen. T., new tri. ord —A¥. judg.
absol. agst. plff.)

 

City oF RocHEstER +. MonrGomEry. 72 N. Y., 65.

A judgment against a negligent person is, in an action by him for recovery
over against another, only conclusive on the latter as to matters which
might have been urged against its recovery.

A municipality does not, by entering into a contract for the erection of a

building thereby give a license to violate its ordinances as to placing
obstructions on its streets.
Or,

The entering into a contract by a municipality, for the erection of a building
fronting on one of its streets, does not zfs facto license the contractor to
violate its ordinances as to obstructions of streets.
seseeaan

1878. J Cases ConDENSED. 203.

 

Plff mulcted in damages in an action by a passer-by in its
street for an injury due to obstructions placed there by deft.
while erecting a building under contract with plff, deft had been
given notice of the suit against plff, and that he would be
called on to indemnify it against any judgment therein.

(Report for plff—Aff. at Gen. T.—Aff.)

GERMANIA FIRE Ins. Co. v. MEmMpHis & C. R. R. Co.
72 N. Y., 90.

A shipper’s goods destroyed by fire while in transit over deft’s.
toad, plff paid loss, took assignment of claim from shipper,
bill of lading not read by shipper, contained exemption from.
loss by fire. He/d, shippers are bound to examine bills oflading,
and if they accept them without objection, cannot claim ignor-
ance of contents, and that such a clause exempts carrier unless.
fire occurred through its negligence.

Farmers’ & M. Nat. B’K v, Erte Rway Co. 72 N. Y., 188.

Plff made advances to an apparent shipper of wheat over deft’s.
road upon a bill of lading negligently made out by deft to such
shipper, it having notice of the true owner; true owner had
obtained advances on same wheat from another bank ; plff sold
the wheat for reimbursement; the other bank sued plff for con-
version and recovered ; plff then sued deft for damages for its.
negligence, using the record in the other case (notice of which
had been given to deft) as evidence. e/d, deft liable.

TOWN OF PIERREPONT v. LOVELESS. 72 N. Y., 211.
Floating logs down rivers is not unlawful.
Owners of logs, floated down a river under contract, are not responsible for
the damages occurring through the contractor’s negligence.

Pliff’s bridge over Racket River injured by a jam of logs, defts
owners, in severalty, of mills along the river, owned logs
in severalty, made separate contracts with contractors for
driving logs down the river; contractors massed the logs.
for floating, distributed them at the several mills, injury occured
through contractor’s negligence, business in itself not injurious
204 Cases ConDENSED. [1878.

 

to bridges, no evidence as to ownership of logs injuring bridge.
(Report for plff.—Aff. at Gen. T.—Rev. new tri. ord.)

*

Dorrity v. Rapp. 72 N. Y., 307.

‘Under chap. 6 of Laws of 1855, it is not the duty of a person, whose wall is
endangered by an excavation on his neighbor’s lot more than ten feet
below the curb, to tender to his neighbor the license therein provided for,
but it is the duty of his neighbor to apply for it.

As between the owner of a lot, on which an excavation more than ten feet
below the curb is being made, and his contractor, the duty rests upon the
owner to make application to his neighbor for the license provided for by
chap. 6, Laws of 1855.

Furst rv. SEconD AVE. R.R. Co. 72 .N. Y., 542.

If a witness has not given any evidence that care was taken to avoid an
accident, evidence that at the time he said it was not is inadmissible.
Plff a child run over by deft’s car; conductor, witness for

deft, testified, inside car collecting fare; on cross, denied having

said to third person if driver looking would not have run over

the child ; plff allowed to prove by such third person that the

conductor had said so ; conductor had not testified that driver

did look. Injury, arm amputated, internal and bodily injuries.
(Verd. $5,000,—Aff. at Gen. T.—Rev. new tri. ord.)

 

JAQUISS v. HAGNER. 72 N. Y., 605,
He who is his own lawyer has a fool for his client.

PIff put into hands of deft’s as attys for suit a claim for money
loaned, on which they obtained judgment, but not collection ;
they did not before judgment obtain any lien on the debtor’s
property ; it did not appear from the complaint, or on the
trial that the attys could have procured such a lien by notice

of lis pendens, or attachment or could have obtained an order
of arrest.

(Verd. for defts—Aff. at Gen. T.—Aff)

Note.—The explanation of this action, and this appeal, lies in the fact as
appears in the report that the plaintiff conducted it himself.
1878. ] Cases CONDENSED. 205.

Kine v. N. Y. Centr. & Hup. R. R. R. Co. 72 N. Y.. 607.
(1st Appeal. 66N. Y., 181.)
It is allowable to exhibit to the jury a broken piece of the appliance, the
breaking of which caused the injury.

A witness may be asked if he can see any defect in a broken piece of an ap-
pliance in evidence.

Facts sarne as before ; only new questions, (1) piece of the
broken hook allowed to be shown to jury ; (2) plffs counsel
was allowed to ask a witness if he could not see crosscracks
on the broken piece, (3) a question as to the proper extent of
cross-examination.

(Verd. $4,275.—Aff. at Gen. T.—Aff.)

Boots v. Bost. & ALB. R. R. Co. 73 N. Y., 38.
(Ist Appeal. 67. Y., 593.)

A railroad company owes a duty to its servants to see that its rule, as to
sending out its train with a certain number of men for a crew, is obeyed.

(Verd. $7,500.—Aff. at Gen. T.—Aff. )

The only questions arose on certain requests to charge
evidently prepared as a forlorn hope, for the purpose of evading
the rule in the Flike case or re-opening it for discussion; court
states, nothing new presented ; among the points, was one to
the effect that the negligence in starting the train with insuf-
ficient help was not the deft’s negligence, but that of the co-ser-
vant who started the train, in failing to obey deft’s rule that
trains should start with a certain number.

Notr.—It should be noted that in 91 N. Y., at p. 501, the court say that
the rule of this case was that ‘‘no matter whose immediate negligence it
was to start the train without sufficient brakemen, it was in law the riegli-
gence of the defendant.”

But with all due deference, we beg to suggest that that is not the point in

‘the cases growing out of this accident, The company had made arule, as
to the number of the crew who should go out with its trains, this rule was
disobeyed, the train was started by an employee with a brakeman missing,
The question here presented (one which does not seem to have been urged
in the Flike case) was, whether, the company having made a rule on the
subject, the failure to obey it was the negligence of a servant, or its own;
and the affirmance of the judgment in face of the request necessarily means

‘ that a railroad company is bound to see this particular rule is obeyed, The

_ dictum of Allen, J., in Wright case (see note to that case),.and the holding

of the court in Slater v. Jewett, cannot be reconciled with this ruling, not-
206 Cases ConDENSED. [1878.

withstanding the labored reasoning, in the latter, of Folger, J., in vain at-
tempt to distinguish them. The fate of the Isaac’s case must soon over-
dake the Flike and Booth decisions.

FarrFax v. N.Y. Cent. & H. BR. R. BR. Co. 73 N. Y., 167,
(1st Appeal. 67N. Y., 11.)

On new trial it appeared that plff had not gone by same route
aas his baggage ; he and his baggage traveled together part of
the way, and then separated, he going by the route his ticket
called for, and his baggage through the mistake of one of the
‘carriers on the route being sent over deft’s line, although by the
marks on the check deft might have known it was to be carried
by another route; plff ignorant of mistake, demanded his bag-
gage of deft as soon as he had reason to believe deft had it;
in the portmanteau were thirty-ninesovereigns which jury found
were reasonable amount under the circumstances for plff’s jour-

ney. Held, deft liable as warehouseman for full amount of
loss.

MULLER v. McKesson. 73 N. Y., 195.

-A person who knowingly keeps a vicious animal must secure him at his
peril.

In an action for damages committed by a vicious animal, acts of the plaintiff
if they are to be taken as a defence, must be such as would establish that
the plaintiff with knowledge of the amimal’s character voluntarily brought
the injury upon himself.

‘The fact, that a vicious animal has been enabled to inflict an injury on
a servant through the negligence of a co-servant, is no defence to the

master.
Plff bitten by deft’s dog. The facts are sufficiently disclosed

in the head notes. Injury, leg, arm and thigh injured by bites,
shinbones and teeth by falling.

(Verd. $1,500.—Aff. at Gen. T.—Aff.)

Durcuess Co. Mut. Ins. Co.v. HACHFIELD. 73 N. Y., 226.

-Mere negligence in the purchaser of negotiable securities is not sufficient
to defeat his title.
1878, ] CasEs CONDENSED. 207

 

MapDAN v. SHERARD. 73 N. Y., 329.

Plff delivered his trunk check to agent of deft’s express com-
pany, received receipt entitled “ domestic bill of lading,” which
contained exemption clause limitating liability to $100 ; circum-
stances like those in Blossom v. Dodd. eld, plff had right to
suppose it was a mere receipt, and that if he had no notice
that it was intended to subserve any other purpose, his omission
to read it-was not fer se negligence.

LyncuH v. McNaury. 73 N. Y,, 347.

Ordinary familiarities with a dog running loose, without knowledge of its
viciousness, do not constitute acts warranting the inference that a person
voluntarily brought upon himself its attack.

HILL v. SYRACUSE, Binc. & N.Y. R.R.Co. 73 N. Y.,351.

Suit for damages for delay of two months in shipment of
wool, price meantime fallen ; before delivery of it to deft its
agent said would be shipped within,two weeks ; when delivered,
and bill of lading given, plff did not read it, more than to notice
whether weights correctly stated ; contained clause of exempt-
ion against damages for delay. Held, parole agreement could
not be resorted to to vary terms of bill of lading, which bound
plff whether read by him or not, and deft not liable.

KENNEDY v. THE Mayor &c., oF N.Y. 73 N. Y., 365.

A pier owner must have string-pieces on his pier to protect restive as well
as docile horses.

Piff’s horse and cart backed off deft’s dock, no string-piece,
horse became unmanageable, plff made every effort to save
him.

(Nonsuit on opening.—Aff. at Gen. T.—Rev. new tri. ord.)
208 Cases CONDENSED. {1878.

 

Connecticut Fire Ins. Co. v. Erte R. Co. 73N. Y , 399.

An insurance company, which has paid the owner for property destroyed by
fire due to another’s negligence, may recover from the latterthe amount
it has been obliged to pay.

Settlement with the wrong-doer by the owner of property, destroyed by a
fire due to former’s negligence, does not affect the right of an insurance
company, on paying the amount ofits policy to the owner, to recover the
amount from the wrong-doer, when the insured reserved all claims against

the company.

WELSH v. GERMAN AM. BANK, 73N. Y., 424.

A depositor in a bank owes no duty to his bank to examine his returned
checks with a view to the detection of forgeries in their endorsements.

DALE v. Dex., Lack. & West. R. KR. Co. 73 N.Y,, 468.

Evidence of ordinary betterments on railroads, months after an accident, is
not admissible to show negligence as the cause of such accident.

Plff passenger, arm broken, hit by bridge, over which
car passing, bridge wooden, plff allowed to prove few
months after accident bridge replaced by iron one, distance
from track to truss greater than in old bridge, new trusses did
not come up as high as sills of car windows, this evidence to
show old bridge considered by deft too narrow for safety.
Injury, arm broken.

(Verd. $2,000,—Aff. at Gen. T.—Rev. new tri. ord.)

Morr v. ConsummR’s Ick Oo. 73 N. Y., 543.
An opinion of a plaintiff's witness and a statement in a defendant’s answer

read in evidence by plaintiff, that an injury was caused by the willful act of
the defendant’s servant, will not justify a nonsuit,

Plff injured by upset of his carriage by deft’s ice wagon ; one
of plff's witnesses gave it as his opinion that deft’s driver pur-
posely drove against the plff’s carriage, afterwards qualified it
by saying he could not tell; plff’s counsel read the evidence
deft’s answer, containing an admission (so called) that the up-
setting had been done by its driver “willfully.”

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)
1878. ] Casrs ConpENSED. 209

 

MEHAN ¢. SYRACUSE, Bing. & N.Y.R.R. Co. 73 N.Y., 585.

Whether an engineer,running (driving?) an engineon arailroad track, hashad
thereby sufficient opportunity to become acquainted with defects in the
tracks making it unsafe, is a question of fact.

Plff's intestate, engineer, killed, engine ran off track, track
badly out of repair; court charged if deceased knew or ought
to have known the real nature of the defects plff could not

recover.
(Verd. $4,500.—Aff. at Gen. T.—Aff.)

Weston v. N. Y. EuEv.R. R. Co. 73 N. Y., 595.

A railroad company is bound to see that its platforms at stations are so far
safe from ice that passengers, using the ordinary care of persons not
apprised of danger, will not slip.

Plff passenger, slipped, though using care, on ice allowed to
accumulate on deft’s uncovered platform, across which passen-
gers had to go from waiting-room to reach trains ; other pas-
sengers slipped at same place; court charged, deft bound to
be on the alert to make its platforms safe in cold weather,
either by removing the ice or putting sand or ashes on it, and
while not bound to keep them so that passengers could not slip,
it was bound to keep them so that persons using ordinary care
which people use when not apprized of danger, would not slip;
refused to charge to effect deft not bound to use more care than
one who permitted the public by a bare license to go upon his
premises. Injury, leg broken.

(Verd. $9,000.—Aff. at Gen. T.—Aff.)

REXTER v. STARIN. 73N. Y., 601

Whether itis negligent for a man to put himself in peril to save his property ,
from apprehended damage, it not being certain that he will himself be
injured, is a question of fact.

PIff injured in collision between his canal boat and deft’'s tug;
boat moored to dock, plff on dock, saw tug coming, negligently
managed, collision imminent, went on his boat to do what he
could to save it, struck by timber torn off in the crash. Injury,

leg broken.
(Verd. $3,000.--Aff. at Gen. T.—Aff.)
210 Cases CONDENSED. (1878,
RIpDELL v. N. Y. Cent. & Hup. R.R.R.Co. 73 N.Y., 618.

Simply a question whether plff had sufficient interest in a boat,
injured by fire through deft’s negligence, to maintain the action.

 

*

Curtis v. DEt., Lack. & WEstT. R. R. Co. 74 N. Y. 116.

Plff's baggage, arriving at destinaton in this state, from an-
other state, lost here through deft’s negligence ; plff not on train
which carried it, but wife and children were ; trunks contained
paraphernalia of wife, paid for by plif, no evidence of gift by
him to wife, law of state where baggage checked limited liability,
Held, p\ff could recover full amount, law of other state did not

apply.

Hume v. THE Mayor &c., or N.Y. T4N. Y., 264.
(1st Appeal, 47 N. Y., 639).
A municipality must not permit an obviously dangerous covering over a
sidewalk to remain.

Shown on new trial, awning, a wooden one, defectively con-
structed, defect obvious, required no expert to discover it, had
existed long time, enough to warrant inference of construc-
tive notice to city officials of its dangerous condition.

(Verd. $18,385.—Rev. at Gen. T. new tri. ord—Rev. judg. on
verd. aff.)

McGarrin v. Ciry of Conors. 74 .N. Y., 387.

An action against a municipality to recover damages for negligence is not
an action on a contract, obligation or liability express or implied.

Plff injured through deft’s neglect to keep its sidewalk in
repair, charter provided ‘‘no action against the city on a con-
tract, obligation or liability express or implied shall be com-
menced except in one year after the cause of action shail have
accrued”; action not begun within a year after accident
Injury, shock causing miscarriage,

(Report, $3,000—Aff, at Gen. T.—Aff.)
1878. ] Cases ConDENSED. 211

 

BERTHOLF v. O’Retuty. 74 .N. Y., 509.
The civil damage act, laws of 1873, chap. 646, is constitutional.

Plff's ‘horse died from overdriving by plff's minor son while
intoxicated with liquor bought from deft’s tenant, to whom deft
had let his premises with knowledge that intoxicating liquor
was to be sold on them.

(Verd. for plff.—Aff. at Gen. T.—Aff.)

VOLANS v. OWEN. 74N. Y.,, 526.

Under the civil damage act, diminution of one’s income, or loss of property,
does not constitute an injury to means of support, if sufficient is left for
support.

Piff's minor son, while intoxicated by liquor sold to him by
deft, fell and injured himself, thereby subjecting plff to'medical
expenses, and loss of son's services on his farm; no evidence
that son’s services were necessary to plff’s support, or
diminished plff’s means so as to make them inadequate to his
support.

(Verd. for plff. —Aff. at Gen. T.—Rev. new tri. ord.)

ADAIR v. BRimMMER. 74 N. Y., 539,

Where an executor by his negligence suffers his co-executor to receive and
waste the estate, when he has the means of preventing it by proper care,
he is liable to the beneficiaries for the estate thus wasted.

Or,

An executor owes to the beneficiaries under a will the duty not to allow a
co-executor to receive and waste the estate, when he has the means of
preventing it by proper care.

CARPENTER v. BLAKE. 75 N. Y., 12.
(Ist Appeal. 50N. Y., 696).

A patient suing a physician for malpractice may be asked if he relied on
what the physician told him.

Ifa patient sustains injury through negligent treatment of a physician, sub-
sequent negligence of the patient, or of another physician, forms no bar
to the action, but goes simply in mitigation of damages.
212 Cases CONDENSED. [1878,

 

Plff fell from horse, dislocated elbow, deft, a physician, operated
on arm, ordinary case, no cure resulted, crippled probably for
life ; issue of negligence wholly one of fact; question to plff
whether she relied on what deft told her as to condition of her
arm allowed ; court refused to charge if plff guilty of any negli-
gence in management of arm, through fault of her attending
surgeon after deft ceased to have charge of case, or without
such fault of the surgeon, and such negligence contributed in
any material degree to produce present bad condition of arm,
deft not responsible.

(Verd. $1,200.—Aff. at Gen. T.—Aff.)

SEWELL v. Ciry oF Conors. 75 N. Y., 45.

The fact, that the opening of a street by a municipality was without right,
does not excuse it from the duty of maintaining it in a safe condition,
Whether a vehicle of unusual but not extraordinary dimensions is a proper

one to be driven along astreet is a question of fact.

Evidence, that an obstruction on a city street, opened without right, was
removed under resolution of the city council a few days after an accident
caused by it, is competent for the purpose of showing that the city at the
time of the accident assumed to maintain the street as such. ,

Plff driving a circus wagon ten feet high on deft’s street,
crushed against tramway across street ten feet above it, turned
a corner into the street, looked back to see if hind wheel would
clear corner, looked ahead, saw tramway, unable to stop in
time ; street had been a strip of land, with tramway on it, be-
longing to the state, along canal, graded and paved as a street
about a year previous under resolution of city council; evidence
admitted of resolution of council two days after accident to
remove it, was removed. Injury, shoulder and ribs broken,
head and scalp injured, also internal injuries.

(Verd. $7,coo.—Aff. at Gen. T.—Aff.)

CooPER v. EASTERN TRANSP. Co. 75N. Y., 116.

Where steamboats have vessels in tow, itis the duty of the persons managing
them to exercise due care in their management, whether such care requires
an observance or departure from the general rules of navigation or not,
and irrespective of their force if the contest were between themselves.
1878. ] CasEs CONDENSED. -218

 

Plff’s intestate killed in collision on Hudson river, between a
canal boat, on which she was, in tow by tug of the deft com-
pany, and a schooner in tow by tug of deft Austin; one tug sig-
nalled the other to go to the right, then signalled it to go to the
left; rules of navigation require vessels meeting head on to go
to the right, or to the left—if deemed unsafe to go to the right
—after signal as provided for that emergency ; court charged
that persons managing the respective tugs were bound to exer-
cise proper care and diligence in the management of their
vessels, whether such care required an observance or departure
from the general rules or not, and irrespective of their force if
the contest were between themselves.

(Verd. $4,000 agst. both, appeal by deft co.—Aff. at Gen. T.
—Aff.)

Note.—In this case it was deemed safer to follow the language of the
charge, but its meaning translated into simpler phrase seems to be this:

The amount of care, which a steamboat with a tow, on meeting another

steamboat with atow, is bound to observe toward both tows is more
than a mere blind obedience to the general rules of navigation.

SMITH v. RATHBUN. 75 N.Y., 122.

Suit against director and vice-president of bank for negligently
allowing its cashier to misappropriate its funds. The question
involved was merely one of practice in regard to power of
referee to allow an amendment of a pleading on condition that
the other party be permitted to demur to it as amended.

CANFIELD v. BALTIMORE & O. R. R. Co. 75 N. Y., 144.

Plff shipped several boxes of goods over deft's road and a
connecting road, to New York, packages delivered to consignee;
after one or two days, on being opened some articles which had
been packed in one of the boxes missing, discovery then made
that box had been opened and nails redriven, no evidence
whether this was done while box in possession of deft or its
connecting road, or of the consignee. He/d, insufficient to
establish liability of deft.
214 Cases ConDENSED. [1878.

 

Buarr v. BARTLETT. 75 N. Y., 150.

A judgment in favor of a person ina suit brought by him to recover the
value of his services is, though on default, ves adjudicata upon the ques-
tion whether he was negligent in their rendition.

’

Plffs arm negligently treated by deft, a physician; deft proved
a judgment.in prior suit in Justice’s Court in his favor against
plff for $28, brought to recover value of same services, plff
had put in an answer, withdrawn it, judg. by default.

(Verd. $1,000.—Rev. at Gen. T. new tri. ord.— Aff. judg. absol-
agst. plif.)

Harris & UEBELHOER. 75 N. Y., 169.

Whether a change of the course of a vessel,on being hailed at night, whereby
a collision occurs, which would have been avoided if she had kept on ee
course, was negligent, is a question of fact.

It is not negligent to do that which persons are in the habit of doing with
safety and without imminent peril.

It is not negligent for a blind man to row a boat under the direction of an
experienced person, who is not blind. »

The burden is not on a vessel, which does show a light, to prove that the
light conformed to the requirements of law.

Piff’s intestate, drowned, crossing Buffalo river in scow with
her husband and a boy, run down by deft’s tug, husband
sculling, blind, she his guide, their business required them to
cross river several times a day, he sculled, she watched, directed
him to right or left as occasion required, clear night, stars
shining, objects visible on water hundred feet off, tug coming
down river 4 miles an hour, husband hailed it, scow nearly
passed across tug’s course, latter without slackening speed
steered towards scow, if kept on would have cleared it, scow
carried light; act of Congress provided that a light shall be
carried by such craft as should be prescribed by Board of In-
spectors, no proof what the Board had prescribed; court
declined to charge that if the scow had no light as prescribed
by the act, it was evidence on the question of negligence of
deceased.

(Verd. $1,000.—Rev. at Gen. T. new tri. ord—Rev. judg. on
verd. aff.)
1878. ] Cases CONDENSED, 215

 

CREGIN v. BROOKLYN Cross T. R. R. Co. 75 N. Y., 192,
A cause of action in favor of a husband for loss of services of his wife
through another’s negligence survives the husbarid’s death.

This action was originally brought by a husband to recover
for loss of services of wife, injured through deft’s negligence;
pending it, he died, motion by his adm’r to continue action.

(Order entered continuing action in name of plff as adm’r.—
Aff. at Gen. T.—Aff.)

McMagon v. Second Avs. R.R. Co. 75 N. Y,, 231.

A person, under contract with a municipality to keep any portion of its
streets in repair, is bound to keep such portion safe for passage over a
lawful excavation dug by the municipality or by its permission for a pur-
pose fairly within view of the parties when the contract was made,

Pltf injured in upset of his truck, driving along deft’s track,
wheels of one side on rail, wheels of other side foot beyond
other rail, and between it and other track; house owner with
city’s permission had made an excavation under the tracks,
notified deft thereof, deft under contract with city to ‘‘ pave the
streets in and about the rails in a permanent manner and keep
the same in repair”, deft laid a bridge across the trench, bridge
insufficient. Injury, arm lacerated.

(Verd. $2,000.—Aff. at Gen. T.—Aff.)

CLAFLIN v. MEYER, 75 N.Y, 260.

Where the presumption of negligence onthe part of a warehouseman,
arising from demand and neglect to deliver, is met by evidence of theft,
the burden is on the plaintiff to show that the warehouseman was negli-
gent in guarding the things stolen.

SALTER v. UTIcA & Buack Riv. R. KR. Co. 15 N.Y., 2738.
(Ist Appeal. 59N. Y., 631.)
Approaching a railroad crossing at such speed as to be unable to stop or turn
one’s horses aside, before actually going on the track, is negligence.

At the second trial, the court refused to charge that it was
negligence if deceased approached the crossing at such speed
as to be unable to stop or turn his horses aside before actually
going on the track,

(Verd. $5,009.—Aff. at Gen. T.—Rev. new tri. ord.)
 

216 Cases ConDENSED. [1878.
Bassett v. Fish. 75 N. Y.. 303. .

Whether a person is sufficiently acquainted with a dangerous spot in a place
where he works to make it negligent to fall into it is a question of fact.

A member of a corpqrate body upon which a duty rests is not liable individ-
ally for the neglect by the body of its duty, where he was not specially
charged with its performance.

Plff school teacher, injured by stepping into hole in school
room floor, with which not familiar, duties called her to another
part of building, had seen hole once three weeks before ; deft’s
trustees of a Union Free School District organized under laws
of 1864, chap. 555, the force of which was to create a corpora-
tion, of which defts members; it related to the school district
property, teachers and scholars, only as such. Injury, leg
broken.

(Verd. $5,509 exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
directed for plff.—Rev. new tri. ord.)

PEOPLE .EX REL LOOMIS v. BOARD OF TOWN AUDITORS.
75 N. Y., 816.

A town is not liable for the negligence of the Commissioner of Highways
of such town in failing to keep its highways in repair.

Relator recovered judg. agst Commissioner of Highways, of
town of Little Valley, for injuries sustained by her through his
neglect to keep in repair a bridge, part of highway of said town;
execution returned unsatisfied ; she requested deft to audit and
allow judgment as a town charge, refused, alternative man-
damus obtained.

(Order quashing writ.—Aff. at Gen. T.—Aff.)

Voak v. NortH. Cent, R. R. Co. 75 N. Y., 320.

The omission to sound the statutory signals when a train is eighty rods
from a crossing renders the railroad company liable for the injuries
resulting to a traveller from his horse’s-fright at a train appearing at the
crossing unannounced,

Or,

The frightening of horses at railroad crossings by the sudden appearance
of trains unannounced is one of the mischiefs intended to be prevented
by the requirement that the train must announce its coming by signals
eighty rods off,
1878. ] Casgs CONDENSED, 217

 

Plff thrown out of buggy by sudden turning of her horse,
frightened by loud blast of whistle of deft’s locomotive at a
crossing, no signal of its approach given eighty rods off, as
required by Laws 1854, chap. 282 §7; owing to obstructions
of view, plff had not discovered train until she was within three
rods of track, could not thereturn round, backed her horse three
rods, when train rushed past, with shriek of whistle. Injuries,
bruises, &c.

(Verd. $2,000.—Aff. at Gen, T.— Aff.)

CorDELL v. N.Y. Cent. & H.R. R.R. Co. 75 N.Y., 830.

(Ist Appeal. 64N. Y., 585).
(Qa « 70 « 119).
(Verd. $5,000.—Aff. at Gen. T.--Rev. new tri. ord.)
Note.—The reversal was upon the oft-repeated ground that a non-suit
should have been granted, because it appeared that deceased was well

acquainted with the locality, and could have seen the train in time to have
avoided it.

HorrMan (Joun) v. N. Y. Cenr. & H. RB. RB. BR. Co.
75 N. Y., 605.

It is the duty of a railroad company to provide a convenient passage
through snow from its depot to the highway.

If a railroad company fails to provide a convenient passage through snow
from its depot to the highway, a passenger may, in using the track as a
convenient path of exit, presume that one part of the track is as safe as
another, and as much for the use of passengers.

Whether placing a cattle-guard in a highway is negligence is a question
of fact.

Piff’s intestate, passenger, run over by gravel train near depot;
had alighted from passenger train at depot, path from depot to
highway 70 feet off, on which snow 2 feet decp, snow shovelled
off of the tracks ; after her train gone by, proceeded to cross the
tracks diagonally to highway, stepped into cattle-guard filled
up with snow even with track, struck before she could extri-
cate herself, would have had time to cross the track but for
falling into cattle-guard, latter extended into highway, and she
was in highway when struck.

(Nonsuit.—Rev. at Gen. T., new tri. ord.—Aff, judg. absol.

agst. defts. )
218 Cases CONDENSED. [1878-79.
Day vr. Fuusaine N.S. & C.R. R. Co. 75 N. Y., 610.

Piff's intestate, killed at deft’s crossing ; had ample oppor-
tunity to see approaching train in time to avoid it.
(Verd. directed for deft.—Aff. at Gen. T.—Aff.)

 

FINNERTY ¢t. PRENTICE. 15 N. Y., 615,

Plff a minor in deft’s employ, at work at a machine; the
question was whether he had been properly instructed as to the
danger incurred (see opin. of Peckham J., in Hickey v. Taafe,
105 N. Y., at p. 36). Injury, arm amputated.

(Verd. $1,000.—Aff. at Gen. T.—Aff.)

Note.—Opinion for affirmance was not concurred in by a majority of the
court.

Lowery v. BROOKLYN Orry & N. RB. R. Co. 76 N. Y., 28.

A street car company, having a license to run on the track of another com-
pany on making,and paying for, the necessary switches, and having laid the
switches properly, does not succeed to any obligation which the other com-
pany may be under of keeping the street at such places in repair.

Piff passing over a crosswalk, thrown down, caught his foot
in a switch connecting deft’s track with that of another com-
pany, flange of switch two inches above surface of crosswalk,
originally level with it, flagstones had sunk and worn away ;
deft laid the switch under permission from the other company,
latter under contract with the city to keep the street in repair
within its tracks and for three feet each side, no agreement be-
tween the two companies that deft should do more than make and
pay for all switches necessary'to avail itself of the license to use
the other company’s tracks ; court charged thatit was the duty of
deft to keep the crosswalk on a safe level with the grade of the
switch, Injury, knee fractured.

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

Lynou v. THE Mayor &c. oF N. Y. 76 N. Y., 60.

A municipality, in grading its streets, owes no duty to adjoining properly
owners to provide means for carrying off surface water from the street so
as to prevent it draining on to their property.
1879. } CasEs CoNnDENSED. 219

 

Plff owned a lot in deft’s city, deft caused grade of avenue to
be raised twenty feet above the surface of adjoining land, neg-
lected to provide any means of carrying off rain water which
fell on the avenue so raised, or to prevent it draining on adjoin-
ing lands.

(Nonsuit.—Aff. at Gen. T.—Aff.)

Camp v. Woop. 76N. Y., 92.

A person letting a hall for entertainment is bound to see that none of the
approaches to it are connected with places which are dangerous.

Plff at night, fell off an unguarded piazza of deft’s inn, door
opened on it from hall of second floor; on third floor was a hall
which deft let for entertainments ; on night in question, hallhad
been thus let, plff had paid a fee to go in, left about eleven,
under influence of liquor, descended to second floor, walked out
the door supposing it to be the street door, went to the end of
piazza, fell off. Injury, leg broken.

(Verd. $350, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
ord. on verd.—Aff.)

DeGrRaaF v. N.Y.C.& H.R.R.R.Co. 76 .N. Y., 125.

A master is under no duty to furnish his servants with appliances which
will not break in the using, where injury from such breaking is not
expectable.

A minor old enough to work as a brakeman is old enough to assume the
risks of such an employment.

Plff, a minor, brakeman, thrown from freight car through
breaking of a chain ofa brake he was turning ; no evidence to
show how or why chain broke, nor as to any defect in it; plff
had used same brake three times before on same trip, such
chains often broke, no injury ever resulted before. Injury, left
hand and right foot cut off.

(Verd. $5,550.—Rev. at Gen. T. new tri. ord.—Aff. judg.
absol. agst. plff. )

O’HAGAN v. Ditton. 76 N, Y., 170.

Evidence that another person has recovered a judgment for damages due
to the same cause is inadmissible.
220 Cases ConDENSED. ({1879.

 

Piff fell into excavation made by deft in a city street, left
unguarded, evidence admitted of another person injured by
same cause having recovered a judgment. Injury, jaw broken
and tip of spine fractured.

(Verd. $2,000, —Aff at Gen. T.—Rev. new tri. ord.)

TrerNeEY v. N. Y.C. & H.R. R.R. Co. 6 N. Y., 305.

Plffs cabbages frozen in transit through deft’s neglect to
transport them in a continuous journey; car containing them
switched on to side track, en route, and blocked by other cars,
accumulating on the switch. Held, defts liable.

WEED v. VILLAGE OF BALLSTON SpA. 76 N. Y., 329.

A passer-by is not bound to keep in mind a defect in a highway which he
may notice in passing.

The rule, as to the liability of municipal corporations for damages to the
citizen from defective streets, applies to villages whose charters give
power to trustees to appoint overseers of highways and to require the in-
habitants to aid in repairing streets.

Plff drove into excavation in deft’s street at night, dug with-
out permit by property owner, who left it insufficiently guarded,
and without light, remained so long enough to have been, and
was, seen by some of deft’s trustees; trustees had power
under deft’s charter to call on the inhabitants to aid in repairing
the streets, and to appoint overseers of highways with power
of assessment ; plff familiar with the street, had seen the ex-
cavation during the day. Injury to hip (to wagon $75).

(Report $750.—Aff. at Gen. T.—Aff.)

Matteson v. N. Y.C.& H.R. R.R. Co. 76 N. Y., 381.
(ist Appeal. 57 N. Y., 552.)

On new trial, the facts differed in some material respects from
those disclosed on the first trial. .The court left it to the jury to
say, whether there was a delivery by deft to plif of the missing
trunk at the time she gave up her checks to the baggage

master, and they found there was not. eld, question of fact
rather than of law.
1879. } Cases CONDENSED. a 221

 

TaorPs v. N. Y. C. & H. BR. R. BR. Co. 76 N. Y¥. 402.

Where a parlor-car owned by one corporation isrun as a part of a train
belonging to another company, the porter of the parlor car is to be con-
sidered as servant of the latter in ejecting a person, who refuses to pay
extra fare because there were no seats in the coaches,

A passenger may sit in a parlor-car without paying extra fare, if seats in
the coaches are filled.

PIff passenger, finding no seat in coach, went into drawing-
room car, owned by another company, refused to pay for
drawing-room car seat, on ground no seat in coaches, said
would leave drawing-room car when he could get seat in coach;
porter of car in employ of drawing-room ear company, tried
to eject him from the car ; action for assault.

(Verd, $1,000.—Aff, at Gen, T.—Aff.)

SmirH v. Ciry OF ROCHESTER. 76N. Y. 506.

A municipal corporation owes no duty to see that its property, used in a
public celebration which it has authorized, is carefully managed.

PIff carefully crossing deft’s street, night, run over by deft’s
hose cart, driven rapidly, carelessly, to arendezvous of deft’s fire
engines for a parade in celebration of centennial, under resolu-
tion of common council to celebrate same by sports and fire-
works; charter empowered deft to organize fire dept, and regu-
late sports and exhibitions of fireworks.

(Nonsuit on opening, exc. at Gen. T.—Exc. overrul, at Gen.
T. judg. ord. for defts.—Aff )

 

ApoLpH v. CENT. Park N. & E.R. R. BR. Co. 76 N.Y., 530.
(Ist Appeal. 65 N. Y., 554.)

A person, driving in a street-car track, is not bound to be so solicitous of
keeping out of the way of cars coming up behind him, that he cannot give
due heed to the road in front of him and at his side.

Or,

A Been driving on a street car track is bound to keep out of the way of
on-coming cars where he can do so consistently with giving due heed tu
the road in front of him and at his side. :

Or,

He is not bound, if he can not.
222 Cases CONDENSED. [1879.

 

Facts as before. The question on this appeal turned on the
charge. Injury, hip joint injured, scalp wound, various internal
and external injuries.

(Verd. $5,000.—Aff. at Gen. T.—Aff,)

Note.—lIt is difficult to ascertain what was the exact point decided in this
case. The opinion of Folger, J., which was for reversal, is called the
“opinion of the court,’’ but the judgment was affirmed. Two judges con-
curred with Folger, J. for reversal. Three judges dissented from Folger, J.
and were for affirmance. Church, C.J., concurred with Folger, J. in his
law, but disagreed with his construction of the charge, holding that the
charge meant substantially what Folger, J. held the law to be. The head-
notes are (diffidently) suggested as the rule of the case, to be collected from
the fact of affirmance, rather than from the reasons given.

McCartuy v. LAKESHORE & M.8.R.R.Co. 76 NLY., 592.

Plff injured at deft’s crossing; only question was whether the
place where the accident happened was a public highway.
feild to be a question of fact. Injury, leg broken.

(Verd. $1,250.—Aff. at Gen. T.—Aff. )

GALE v. N. Y.C. & H.R. BR. R. Co. 76 N. Y., 594.

It is the duty of a railroad company to keep its crossings safe for the passage
of travellers.

Plff thrown from his wagon, wheel broke, struck rail of deft’s
track at crossing, plank had become decayed, worn down so
that the rail projected. Injury, hip and thigh-bone broken and
knee broken.

(Verd. $14,000.—Aff. at Gen T.—Aff.)

 

Kenyon v. N.Y. C.& H.R, R.R.Co. 76 N, Y., 607.

PIff boy of 3, run over by deft’s train. Injury, knee broken, face
and head lacerated, eyes injured. The statement in the report,
1879. ] Cases CONDENSED. 223

 

“reported below 5 Hun, 479” is incorrect if intended to refer to the
decision at Gen. Term from which this appeal was taken. That
was a decision granting a motion for a new trial ona case. The
facts on that trial were very similar to those in the Prendegast
case, 58 N. Y., 652. The present appeal was after the new
trial.

(Verd. $600,—Aff at Gen. T.—Aff.)

NIVEN v. CITY OF ROCHESTER. 76 N. Y., 619.

Whether a person, admittedly using some caution, has used enough is a
question of fact.

A provision in a municipal charter requiring. lot owners to keep sidewalks
in good repair does not warrant a municipality in relying on a pre-
sumption that this has been done.

The fact that Commissioners of Public Works are constituted by law in a
city to look after its streets, does not relieve the municipality from
responsibility for their condition,

Plff's wife, walking dark night on deft’s sidewalk, knew it
was out of repair, walking carefully, picking her way, not
thinking particularly of the walk, stepped into a hole she did
not know about, was injured ; in deft’s charter it was provided
that lot owners should keep sidewalks in good repair, and if
they did not, city might at their expense; absolute control of
streets given to deft; by subsequent act, commissioners of
public works were required to be appointed, who were made
commissioners of highways and given charge of the streets.
Injury to wife, ankle sprained.

(Verd. $1,600.--Aff.—at Gen, T.—Aff.)

 

Livrineston v. N. Y.0.& H.R.R.R.Co. 76N. Y., 631.

Delay in transporting of plffs cheese, market price falling
meantime; shipped by a road connecting with deft; delay
occurred at the point where the two roads connected ; deft
received the way-bills from the other road, but failed to take
charge of the freight in the car which contained the freight
referred to in way-bills, such car being damaged. Held, question
of fact whether delay unreasonable.
224. Cases CONDENSED. (1879;

 

CHIPMAN t. PALMER, 77 N. Y., 51.

Where different persons pollute a stream ina similar way, but independently
of each other and not jointly, each is only liable to respond for the
damages caused by himself.

Note.—See Simmons v, Everson, 124 N. Y., 319.

Rine v. City oF CoHors. 77 N. Y., 83.

It is not negligence for a municipality to maintain in its streets hydrantsset
in the curb, with nozzles projecting a short distance over the gutter.

When two causes combine to produce an injury, both proximate, the one
culpable, the other not, the defendant is not liable unless it appears that
the injury would not have been sustained but for the culpable cause.

It is no defense to an action for damages sustained by a traveller, by reason
of an unsafe highway, that his horse was running away.

Or,

Municipal corporations must keep their streets reasonably safe for run-
aways.

Plff injured through his sleigh hitting nozzle of deft’s hydrant,
horse running away ; hydrant set in curb, nozzle stretched out
over gutter 4 inches, opposite hydrant was an ash-heap eleven
feet wide; as ash-heap was reached a wagon narrowed the pas-
sage; in avoiding the wagon, the nozzle was struck; referee
found deft guilty of negligence in permitting ash-heap to remain
in street, and maintaining a hydrant with nozzle projecting into
the street, and that such negligence caused the injury; did not
find that the injury would not have happened but for the ash
heap. Injury, nose broken and various contusions.

(Report $1,500.--Aff. at Gen. T.—Rev. new. tri. ord.)

First Nat. BANK v. FourtH NAt, BANK. 77 N. Y., 320.

A bank undertaking the collection of commercial paper must, if it receives
a check in payment of it, present the check for payment as soon as with
reasonable diligence it can.

A bank is only liable in nominal damages for negligence in failing to
collect commercial paper, where it appears that any of the parties to it
are liable and are solvent.

WHITING v, Ciry BANK OF R. 17 N. Y., 363.

A bank negligently discharges an endorser, if it assumes itself to pay a note
sent to it for collection.
1879. } Cases CONDENSED. 225

 

OLMSTED v. DENNIS. 77 N. Y., 378.

A person, who loses a claim against a municipality through the negligence
of a public official in failing to take the necessary steps to make the
obligation a valid one, may recover its amount from the officer himself.

A person is not damaged by the failure of a public official to obey the law,
where it is not too late to have such failure rectified.

McDonaLp v. Mauuory. 77N, Y., 546,

Under the Death Act of this state an action may be maintained in this state
against the citizen owners of a domestic vessel to recover damages for
negligently causing the death of a citizen upon such vessel while on the
high seas.

Plffs intestate, a citizen of New York, killed through negli-
gence of deft’s servants while on board deft’s vessel on the high
seas, they being citizens of this state, and the vessel belonging
to the port of New York. Demurrer, no jurisdiction, no cause
of action.

(Dem. sustained.—Aff. at Gen. T.—Rev. and dem. overruled.)

HaGarR v. CLARK. 78 N. Y., 45,

Where the hiring of a ship for a voyage is really a mere contract of affreight-
ment rather than a charter party, the owners are liable to the hirers for
damages sustained by them through the negligence of her engineer.

Or,

Under such circumstances, the engineer is the servant of the owner not of
the hirers.

In RE Coun. 78N. Y., 248.

The neglect of an assignee for benefit of creditors to take steps to arrest the
sale of the assigned property under execution upon a prior judgment,
which he has reason to believe is fraudulent, is cause for his removal.

WILLY v. MULLEDY. 78 N. Y., 310.

A landlord, who fails to supply for his tenants the means of escape from
fire prescribed by law is liable for the damages resulting therefrom,

A person hiring roums in a tenement house has the right to suppose that it
possesses the means of escape from fire prescribed by law.
226 Cases CONDENSED. [1879.

 

Knowledge gained by a tenant after moving into a tenement house, that it
has not the means of escape from fire required by law, will not defeat an
action for damages sustained thereby, where it does not appear that a
reasonable time within which to move has elapsed.

Piff’s intestate, smothered in a fire in deft’s tenement house,
which had no fire escape nor ladder to the roof scuttle as re-
quired by law, to absence of which her death was due; she had
moved in a few days previously with her husband, it did not
appear that at the time of the hiring she knew of the defects
stated, nor that a reasonable time to move had elapsed after a
discovery ; court refused to charge that if deceased knew of
absence of fire escape plff could not recover.

(Verd. $1,137.—Aff. at Gen. T.—Aff.)

TERRY v. JEWETT AS ReEc’R, &c, 78 N. Y., 388.

When a train stops at a station to receive passengers, trains must not pass
on the track between it and the station.

Whether it is negligent for a passenger to cross a track at a station without
looking in order to take a train on the next track, which has stopped to
receive him, is a question of fact.

The fact that the deceased has left property, which goes to the next of kin,
cannot be considered in mitigation of damages.

Pliff’s intestate, passenger, was crossing deft’s track at a sta-
tion to take a passenger train on the track beyond, not looking
for trains on the immediate track, killed by freight train which
was endeavoring to pass the station without waiting for pas-
sengers to take the passenger train which had just come up;
plff as next of kin of the deceased became entitled to her
property, court refused to charge that the jury could take this
into account in estimating the damages.

(Verd. $4,000.—Aff. at Gen. T.—Aff.)

 

Curtine v. Martor. 78 N. Y,, 454.

Where the trustees of a bank fail to exercise proper supervision over its

officers, whereby loss results to a pledgor of securities pledged by him to
it, the bank is responsible for the loss.
1879. ] Cases ConDENSED. 227

 

HALE v. SmitH. 78N. Y., 480.

‘Where the issue is whether an animal has been injured through defendant's
negligence or its own viciousness, the burden is on the plaintiff to show
that it was not vicious.

Plffs horse and wagon injured, runaway, question was
whether due to deft’s negligence, or viciousness of horse ; court
charged that the burden of proof was on plff to show horse not
vicious.

(Verd. for deft.—Aff. at Gen. T.—Aff.)

CasBy v. N.Y. 0. & H.R. RB. R. Co. 78 N. Y., 518.

Where a person crossing railroad tracks is on the alert against danger from
a train on one of the tracks, a presumption of continuance of alertness
against danger from a train on another track exists sufficiently to make
the question of his negligence one of fact.

Plff's intestate killed, crossing deft’s track in city street in
‘front ef its yard, had paused to await the passing of a train, on
going on was struck by engine rapidly backing out of yard,
without warning, flagman usually stationed there absent.

(Verd. $4,500.—Aff. at Gen. T.—Aff.)

Mannine v. HoGan. 78 N. Y., 615.

One who takes an assignment of the money to grow due on a contract for
work, and then does the various things which a person would do to carry
the contract out, stands in the relation of master to the men doing the
work. :

Employment as a servant upon a job is sufficiently proved by showing
that the servant’s name is on the pay roll of the job and that he has
received money for work done by him on it.

Plff's intestate, working on improperly built scaffold on a
public building, killed by its fall, work being done under con-
tract with city; before the work was begun, the contractor had
assigned to deft all the moneys to fall due under the contract,
deft was carrying out the contract for his own gain, the con-
tractor acting as his foreman, latter denied he had employed
‘the deceased, deceased was on pay roll, had. received waure

(Verd. $5,000.— Aff. at Gen. T.—Aff.)
228 CasEs CONDENSED. [ 1879-80.

 

Ke.ioae v. N.Y, ©. & H.R.R.R.Co. 79 N.Y., 72.

It is not necessarily negligent for a traveller driving on a highway to omit to

"stop on approaching a railroad crossing.

The fact that the deceased had his life insured is not admissible in mitiga-
tion of damages. -

Piff’s intestate killed at deft’s crossing, had driven on it at
slow trot, without stopping, was seen looking for train then
due from the north, was struck by train from the south, running
rapidly, no bell rung; wind blowing from the north, track ina
cutting, highway also, trains due at the time both ways, de-
ceased lived near by, familiar with the running of the train; had
his life insured.

(Verd. $3,000.—Rev. at Gen. T. new tri. ord.—Rev. judg. on
verd. aff.)

KIRKPATRICK v. N.Y.C, & H. RB. B. R.Co. 79 N. Y., 240.

A railroad company must furnish locomotives fit and proper for use by
employees.

Unless the reason of the discharge by a party of a witness on the other side
from his employ was communicated to the witness, evidence of the reason
is inadmissible.

Pliff’s intestate, fireman killed by explosion of deft’s locomo-
tive, not in fit state for use, evidence that a witness for plff had
been discharged for drunkenness excluded, the witness having
testified that he had not been, and deft making no claim that
such a reason had been communicated to him.

(Verd, $1,000,—Aff. at Gen. T.—Aff.)

BENNETT v. GARLOCE. 79 N.Y., 302.

The negligence of a trustee of real estate, whereby an estate by adverse
possession is gained by another, estops the beneficiaries.

Or,

The fact that it was through the negligence of its trustee ‘that an estate was
gained by adverse possession, does not enable the beneficiaries to avoid
such title.

Srackus v. N.Y.C. & H.R.R.R.Co. 79 N.Y., 464.

Whether one, who takes some measures to avoid danger, did all that an

ordinarily prudent person would do under the circumstances is a ques-
tion ef fact.
1880. ] Cases CONDENSED. 229

 

Plff injured at deft’s crossing, took measures to discover an
approaching train, but as it turned out, not sufficiently.
(Nonsuit.—Aff. at Gen. T. —Rev, new tri. ord.)

Noonan v. Crry oF ALBANY. 79N. Y., 470.

An owner of land upon a water course may not collect the surface water
on his premises and discharge it into the stream, when by so doing it
will be filled beyond its natural capacity.

SrEwart v. Morss. 79 N. Y., 629.
Neglect of attorney, alleged as counterclaim in action for
services,
No facts found as to alleged negligence.

CorDELL v. N. Y.C. & H.R.R.R.Co. 79 N.Y., oe
(Ist Appeal. 64.N. Y., 535.)
(and “ 70 =‘ 119.)
(grd *s 75 ** 380.)

(Verd. $5,000.—Aff. at Gen. T.—Aff).

ABBOTT v. JOHNSTOWN G. & K. Horse R. Co.
80 N. Y., 27.

Ifa railroad is leased without legislative authority, the corporation making
the lease is to be regarded as the superior of those operating the road.
Plffs intestate killed by horse car, driver negligent, road

owned by the deft company, leased by it to the deft Decker

for a term of years, latter operating it at time of accident; no
statute authorizing lease.
(Nonsuit as to deft Co.—Aff. at Gen. T.—Rev. new tri. ord.)

FULLER v. JEWETT, AS Rec’r, &c. 80 N. Y., 46

The negligence of servants who repair the master’s machinery is, as to other
classes of servants, the master’s negligeace.
230 Cases CONDENSED. (1880.

 

' Plff’s intestate, killed by explosion of locomotive, on railroad
of which deft was receiver, engine out of repair, had been sent.
to repair shops, owing to negligence of repairers, the defects
causing the explosion not discovered.

(Verd. $3,500.—Aff. at Gen. T.—Aff.)

PATTISON v. SYRACUSE NAT’L Bank. 80N. Y., 82. -

A national bank is liable for the loss of a special deposit through negli-
gence.

Inpia v. National Crry BanKx. 80N. Y., 100.

It is not negligent for a bank, which has received for collection a note pay-
able at a bank in another place, to send by mail the note to such bank for
payment.

WasMer vt. D., Lack. & W.R. R. Co. 80 N. Y,, 212.

Placing one’s self in danger to save one’s property in an emergency is not
necessarily negligent.

The running of a train in a city faster than the rate allowed by the city’s
ordinance is evidence of negligence. ;

It is negligent for a railroad company to lay its rails in city streets above
the surface without any arrangement to allow wagons to pass over them
easily. d

Plff’s intestate killed while trying to rescue his horse and
wagon from deft’s train travelling on a track in a street
faster than rate allowed by ordinance, rails raised four inches
above surface of street, no filling to allow vehicles to cross
easily ; intestate on sidewalk, horse frightened by a train,
dashed across track in diagonal direction, hind wheels of
wagon catching on rail, sliding along, track laid under permis-
sion which required the street to be restored to such a state as
not unnecessarily to impair its usefulness.

(Verd. $1,250—Aff. at Gen. T.— Aff.)

SHAMAN t. THE Mayor, &., or N.Y. 80 N.Y., 239.
A city is under no obligation to keep the navigable waters, on which it is:
situated, safe from obstructions.
1880. ] Cases CONDENSED. 231

 

Ownership by a city ofa pier does not cast upon it the duty of keeping the
watees near the pier free from obstructions placed there by others.

The owner ofa pier is not liable for damages resulting from an obstruction
to navigation by one of its spiles falling away from it, in the meee nice of
notiee that such obstruction exists.

Piff's tug injured by running on spiles in Hudson River, driven’
ia front of deft’s pier by steamship company, lessee of pier,
spiles had fallen away from pier; deft had no notice actual or

constructive that they were dangerous to navigation.
(Nonsuit.—Aff. at Gen. T.—Aff).

DRINKWATER v. DINSMORE. 80 N. Y., 390.

Where loss of wages is relied on as an item of the damages, it is admissible
for a defendant to show that the wages have been paid.

Plff injured by deft’s negligence, loss of wages claimed as
item of damage, evidence given by him of such loss; on his
cross ex. he was asked if he had not been paid his wages
during time he was laid up, excluded. Injury, leg broken.

(Verd. $1,000,—Aff. at Gen. T.—Rev. new tri. ord.)

Karin rv. SmitH. 80 N.Y., 458.

The fact that a person, who operates a railroad as a lessee under a lease, is
a receiver of a connecting railroad, and entered into the lease as such
receiver under permission of the court, doesnot relieve him from personal
responsibility as the lessee of such road.

It is not necessary to join all the lessees of a railroad in a suit for damages
fer negligence, even though they have leased it as receivers of a con-
neeting road.

Plff injured by defective appliance belonging to plant of a rail-
road in this state leased to the impleaded deft and another, they
being receivers of a connecting railroad in another state, they
leased road in question (under permission of their court), agreed
in lease to save lessor harmless from all claims for negligence ;
plffa workman on leased road; on the opening of counsel, it was
conceded by deft’s counsel that plff was in deft’s employ as
carrying on said road, not otherwise, and that a case existed to
go to jury if the liability of the impleaded deft (other receiver
lessee not served) was the same as if he were sole proprietor
and operator of the road.
232 Cases CONDENSED. [1880.

 

(Nonsuit on opening of counsel on the ground that both
receivers should have been sued.—Aff. at Gen T. repudiating
that ground, ground of affirmance being that deft was not plff's
master, but was acting in an official capacity by authority
of court.—Rev. new tm, ord).

Here v. Licut. 80N. Y., 579.

If a person keeps gunpowder in a place or under circumstances where it
would be likely in case of explosion to injure neighboring dwellings, he is
liable for the damages done by an explosion, without regard to the question
whether the explosion was due to negligence.

Keeping gunpowder on one’s own premises, in a place or under circum.
stances where it would be likely in case of explosion to injure neighbor-
ing dwellings, isa nuisance.

Plffs dwelling house injured by explosion of powder maga-
zine on deft’s premises ; court charged that jury must find for
deft, unless they found that he carelessly and negligently kept
the gunpowder on his premises:

(Verd. for deft.—Aff. at Gen. T,—Rev. new tri. ord).

Harr v. Hupson Riv. Bripge Co. 80 N. Y., 622.

In an action to recover damages for negligence, to justify a nonsuit’ the
facts must be so clear against the plaintiff that there is no room for doubt.
Plff's intestate fell through open draw on deft’s bridge,

drowned, there was evidence as to negligence and contributory

negligence, as to which the Court of Appeals comment is
embodied in the rule given above.

(Nonsuit.—Aff, at Gen. T.—Rev. new tri. ord).

Dove v. N. Y. Eye & Ear Inr. 80 N.Y., 631.
In an action for malpractice, it is permissible to ask the physician whether
he used the best ability and skill he possessed.
In an action for malpractice, it is competent for the defense to prove the
professional standing of the physician charged with the malpractice.
Action for damages for injury to plffs eyes producing blind-
ness, alleged to have been due to negligence of the surgeon defts
1880. Cases ConDENSED. 233

in employ of the infirmary deft ; question to one of the sur-
surgeon defts, ifin treating plff he used the best ability and skillhe
possessed allowed ; evidence showing the professional standing
of the surgeons admitted.

(Verd. for defts.—aff. at Gen. T.—Aff.)

 

CARPENTER v. City oF CoHoEs. 81 N. Y., 21.

Where a bridge and its approaches situated within the limits of a city and
used by the public as a highway in continuation of the city’s road belongs
to the state, the city is under no duty to keep it safe for travel.

Or,

A municipality is under no duty to keep safe for travel a bridge and its
approaches, used by the public as a highway in continuation of a public
road, which while within its boundaries, belongs to the state.

Plff's horse and wagon fell over side of an unguarded steep
approach to a bridge over the Erie canal, bridge was a change
bridge for use of draft horses, tow path changing sides; bridge and
its approaches owned by the state, used by the public as a high-
way across the canal in continuation of a road belonging to
defendant, the place of the accident being within the city limits,
the approach steep, slippery with ice, out of repair.

(Report for deft.—Aff. at Gen. T.—Aff.)

CLIFFORD v. Dam. 81N. Y., 52.

Where the maintaining of that which without a permit from the proper
authorities would be a nuisance is sought to be justified by a permit, the
permit must be pleaded, and also that its terms were complied with and
the structure properly made and maintained. :

In an action to recover damages resulting from a nuisance, it is not
necessary for a plaintiff to prove his freedom from contributory negli.
gence,

A person in walking along a sidewalk is not bound to take especial care
as to coal holes,

PIff injured by falling into deft’s coal hole in sidewalk in front
of his hotel; under a defense of general denial, deft sought to
show that the coal hole had been made under permit from city
authorities ; excluded because not pleaded. Injury to leg.

(Verd. $600.—Aff. at Gen. T.—Aff.)
234 Casts CONDENSED. [1880:

Cons v. Dex., Lack. & W. R. R. Co. 81 N. Y¥., 206.

The fact that negligence of « co-servant cooperated with that of the master
- in causing an injury to a servant, does not excuse the master.

Plff car examiner, examining deft’s car, jammed between it
and another, latter had been standing near by, attached to
engine, engine started up in consequence of steam escaping
into cylinder through leaky valve, defect known to superin-
tendent and master mechanic, not to plff; engineer had left his
engine, might have prevented the starting up, by opening
cylinder cocks. Injury, body and ribs crushed, internal injuries,

(Verd. $2,000.—Aff. at Gen. T.—Aff.)

Hewhy v. Staven Is. R. R. Co. 81 N. Y., 373,

The starting of a train, while an employe is boarding it, is not, in an action
between master and servant, evidence that the master has been negligent
in providing safe appliances.

A railroad company is not bound to use the best kind of brakes on its dirt
trains.

The omission to send out aconductor with a dirt train is immaterial, where
it does not appear that his presence would have prevented the injury.

Plff laborer on deft’s dirt train, injured by starting of the
train while he was getting on it in obedience to call of engineer,
cause of the start not shown, train standing on a grade, not all
the brakes were set, presumably only two, brakes not the best
in use, but such as were used on dirt trains; no conductor to
train but it did not appear that his absence caused or contributed
to the injury. Injury, hand and two ribs broken.

(Verd. $550.—Aff. at Gen, T.—Rev. new tri, ord.)

CRISPIN vr. BABBITT. 81 N. Y., 516.

The general business manager ofan employer, tu whom is confided the care
of the business in the employer’s absence, is to be regarded asa fellow-
servant with other employees as to those acts of service, which do not
come within the scope of his duties as general manager.

Piff servant lifting fly-wheel of deft’s engine off its centre, in-
jured through the careless letting on of steam and starting of
wheel by deft’s superintendent, latter deft’s business and finan-
cial manager, deft living in another place, rarely visiting his
works; court charged that such superintendent only stood in the
1880. ] Cases CONDENSED. 235.

 

master’s place in respect to those duties which the master had.

confided to him as such; refused to charge that as to any other

acts or duties performed by him in and about deft’s works, he.

was not to be regarded as deft’s representative standing in his.

place, but as a fellow-servant of plff. Injury, arm amputated.
(Verd. $10,000.—Aff. at Gen. T.—Rev. new tri. ord.)

CATLIN v. ADIRONDACK Co. 81 N. Y., 639.
(S.C. 11 Abb., N. C., 377.)
The liability of a common carrier for non-delivery of goods, intrusted to

him for carriage may be enforced by an action either on contract or in
tort at the option of the pleader.

Plff'sued deft for loss of goods shipped as freight; nonsuit,
judgment against plft for costs: Execution against his person
set aside on ground that his complaint was on contract ; order
reversed at Gen. T.; order of Gen. T. reversed, order of Spec.
T. aff,; opinion of Spec. Term adopted by Court of Appeals, in,
which Potter J. holds as stated in head note.

Hun v, Cary. 82 N. Y,, 65.

Trustees and directors of savings banks are bound to exercise such care in.
the management of its affairs as men of common prudence would ordi-
narily exercise in their own affairs.

The fact that a trustee or director of a bank acts gratuitously, does not.
permit him to act negligently.

 

EGGLESTON v, COLUMBIA TURNPIKE Co. 82 N. Y., 278.
Material placed by the road side for its repair, in such a way as to frighten.
horses driven past it, is an obstruction to safe passage on the highway.

Or,

Leaving material for repairing a highway, piled along its side in sucha way-
as to frighten horses, is, after notice of its tendency to frighten them,
negligence.

PIff driving over deft’s bridge, injured through his horse taking”

tright at a pile of stones in the road and springing over the
bridge ; stones piled by deft week before for repair of bridge,
‘236 Cases CONDENSED. [1880.

 

had frightened horses, few days before accident deft notified of
its dangerous character. Injury, side, back and leg bruised,
(horse. and wagon to extent of $920).

(Rep. $1,178—Aff. at Gen. T.—Rev. new tri. ord. solely on
point of error in admitting hearsay evidence.)

Haw.ey v. Nortu. Cent. R. Co. 82 N. Y., 370.

Where an engineer, in seeking to charge a railroad company for negligence
in omitting to maintain a safe road-bed, seeks to escape a counter charge
ef negligence in himself running over it, it is a question of fact whether
he was guilty thereof, where it appears that he did so by express orders,
under a promise to repair, and that others had run over it without injury.

Plff, engineer, injured by overturning of engine by reason of
‘bad condition of road, had been assured that it would soon be
repaired, expressly ordered to make the trip on which was hurt;
-did not appear conclusively that he knew how badly road out
of repair, nor that the danger great, others had run over it with-
out injury; only question made by appellant was as to contrib.
neg. Injury, scalded and foot crushed.

(Verd. $1,000,—Aff. at Gen. T.—Aff.)

PAKALINSKY v. N.Y. C0. & H.R. R.R. Co. 82 N. Y., 424.

-A person, who ventures across a track in front of an approaching locomotive,
even though itis far enough off to give him time to cross, takes the risk of
any detention on the way.

‘Or,

Omission to ring a bell at a crossing, or give other statutory or customary
signals of an approaching locomotive, is not negligence as to a person
who sees it coming.

Plff crossing deft's track at a crossing, engine backing down,
night, no light, no bell rung nor whistle blown, customary flag-
man not at post, engineer did not see plff, plff saw engine
‘approaching, would have had time to cross, but caught his foot
between rail and planking, could not get it out before engine
upon him. Injury, leg amputated.

(Verd. $2,000.—Aff. at Gen. T.—Rev. new tri. ord.)
1880, ] Cases CONDENSED. 23T

 

Parnton v. NortH. Cent. R. Co. 83 N. Y., 7.

A railroad company owes a duty to its servants to see that the eye-bolts on
its brake-rods are large enough to stand the strain of applying the
brakes,

Or,

A master owes a duty to his servant to see that one part ofan appliance is
strong enough to stand the strain when another part is put in operation.

Plff brakeman, thrown from car while applying brake, eye-
bolt broke, defectively welded, too small to stand strain ; not.
shown that deft knew of defective weld, nor that it could have
been discovered by inspection; it could have been discovered
by its maker, not shown whether deft made or bought it,
or whether there had been any omission to test the brake
before use; it appeared on deft’s evidence that larger eye~
bolts had been used since, did not break so much. Injury,
arm amputated.

(Verd. $5,250.—Rev. at Gen, T. new tri, ord,—Rev. judg,
on verd., aff.)

HARRIS v. TUMBRIDGE. 83 N. Y., 92.

A stock broker who is operating in stocks for the benefit of a customer
must act with reasonable care.

Woo.ey wv. GRAND St. & NEWTOWN 8. R.Co. 83 N.Y., 121.

Knowledge that a street is unsafe for travel does not necessarily make one
negligent in going through it, if care is observed in so doing.
T,

A traveller is not bound to bear in mind every unsafe place in a highway so
as to be sure to avoid it,

Evidence of prior accidents at the same spot in a highway is relevant to
show that it is unsafe.

Switches in tracks on public streets must be so placed and maintained that
travellers, using due care, may pass over them safely.

PIff injured by upset of his sleigh, it struck against a switch
on deft’s track, negligently laid, or suffered to become higher
above the level of the street than was safe ; deft was to maintain
its tracks properly ; plff knew of the switch, was proceeding
carefully, though not having in mind its exact spot, covered
with snow, evidence admitted of prior accidents at this place.
Injury, shoulder dislocated and arm permanently injured,

(Verd. $1,500,—Aff. at Gen. T.—Aff.)
‘238 Cases ConDENSED. (1880-81.

SCHWINGER v. Raymond. 83 N. Y., 192.

.A shipper’s consent that his goods may be carried on deck does not relieve
the carrier from the consequences of his own neglect to cover them from
the rain. %

Suit by carrier to recover freight, counter-claim by shipper,
-damages to goods, by reason of not being protected from rain,
being carried on deck by agreement with shipper. /e/d, counter-
‘claim recoverable.

Maas v. Missouri, K. & T. RB. R. Co. 83 N.Y., 223.

‘The failure of an obligor on a bond, which contains a clause making his
liability conditional on an authentication thereof by a trustee, to notify
the public of the fact that it has been stolen, does not constitute negligence
so as to make him liable to a person into whose hands the bond has come

_by purchase in good faith in reliance upon an apparent authentication,
which was in reality forged.

GUITERMAN v. LIVERPOOL, N. Y. & Part. 8. 8. Co.
83 N. Y., 358.

Plff's goods injured in transit, by water leaking into ship
through dead-light torn out by chafing against ship’s sides of a
collier loading her with coal during squall in river, had left dock,
was at anchor to finish loading and receive coal for voyage ; ex-
‘pert allowed to testify what in his opinion should under the cir-
‘cumstances have been done by the persons in charge of the
‘steamship. Held, error, There was also a question of fact as to
whether a pilot on board under compulsory act had exclusive
‘control so as to exonerate deft from liability.

MINIcK v, Crry oF TRoy. 83N. Y., 514.

It is immaterial that a complaint in an action against a corporation for neg-
ligence claims a less sum than that stated in the claim presented under its
charter to its comptroller.

“The rule as to the care which a traveller on the highway must observe is
no greater than this, that he must observe it as he goes along with ordi-
nary prudence such as ordinarily prudent persuns would use under the
same circumstances,

‘Or,

“The rule as to the care which a traveller on the highway must observe is
not so severe as this, that if an unsafe place may be seen by ordinary
exercise of his eyes, ae to avoid it is negligence.
1881-80. ] Cases ConDENSED. 239

 

Plff thrown, out of wagon, driven by her son, wheel ran in
hole foot deep in deft’s street ; in her statement of claim to deft’s
comptroller, as required by its charter, she claimed $10,000, in
her complaint $5,000 ; court charged that if in the use of ordinary
prudence, such as ordinarily prudent persons would use under
the circumstances, the hole ought to have been discovered, plff
could not recover ; refused to charge thatif the hole might have
been seen by plff or her son, and readily avoided by ordinary
exercise of their eyes, failure to avoid it was negligence. Injury,
arm broken at elbow and wrist.

(Verd. $4,500.—Aff. at Gen. T.—Aff.)

PAYNE v. Troy & Boston R. R. Co. 83 N. Y., 572.

Whether it is negligent for a railroad company to allow the space between
the plank and the rail at a crossing to be wider than is absolutely necessary
for the passage of trains is a question of fact.

Plff's mare, driven slowly over -deft’s crossing, in city street,
hind foot caught between planking and rail, which were an inch
further apart than was necessary, plank slightly higher than rail,
crossing thus differed from other crossings.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

CREGIN v. BROOKLYN CROSSTOWN R. R. Co. 83 N.Y., 595.

A right to recover damages for loss of a wife’s society does not survive the
husband’s death.

PIff’s intestate brought this suit to recover damages for loss of
services of his wife, due to injuries from deft’s negligence,
pending suit husband died; plff as administrator continued
action ; court charged that plff could recover for deceased’s loss
of comfort of wife’s society as well as for his expenses and loss
of service.

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

 

a“

Loxrs v. HELLMAN. 83N. Y., 601.
In the absence of express agreement an agent only owes to his principal
reasonable skill and ordinary diligence in the discharge of the duties of
his agency.
240 Cases CONDENSED. [1881.

 

Byrne v. N. Y. C. & H. BR. BR. R. Co. 83.N. Y., 620.

Whether an infant, using some care, used the care which the circumstances
called for from one of its age, is a question of fact.

Piff, girl of 10, struck at deft’s crossing, by train backing, 8
miles an hour; she testified she looked both ways, did not see
the train tiil too late to escape ; her mother had told her to look
both ways at the crossing ; when six feet from track she could
see 270 feet in direction train came.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

Biuts v. N. Y. Cent. & H. R. BR. R. Co. 84 N. Y., 5.
(Ist Appeal. 53 .N. Y., 608.)

Issue on second trial was whether deft unreasonably refused to
place the cars where plff could himself unload them. Held
question of fact whether it was negligence for deft to omit to send
an engine from another station, even though 40 miles away, to
draw cars in sucha place, if train engine disabled ; also question
of fact as to conductor’s negligence in trying to drive train
through the flood instead of waiting for it to subside.

LEONARD v. COLUMBIA STEAM Nav.Co. 84 N. ¥., 48,

An action to recover damages for negligently causing death in another state
is maintainable in this state by an administrator appointed here, if there
is in such other state a death act similar to our own.

Pliff's intestate killed by explosion of boiler on deft’s steamer
in Connecticut ; ‘‘death act” in that state, similar in purpose to
that in this state; letters of administration not taken out in
Conn, but in New York.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

Hart v. Hupson Riv. BRIDGE Co. 84N. Y., 56.
(1st Appeal. 80 N. Y., 622.)

On an issue whether a drawbridge was properly guarded for the protection
of passengers when the draw was opened, it is admissible to prove by an
expert what is customary on drawbridges in that respect.

It is not admissible toask an expert whether a particular kind of precaution
against accidents is a proper one.
1881. ] Cases CONDENSED. 241

In the absence of direct proof as to how a person walked off the end of a

drawbridge, if it appears that a stop-gate was lowered to within two and.
a half feet of the floor, no recovery can be had.

It is not enough to prove facts from which either the adndiudten of negli-
gence or the absence of negligence may with equal fairness be drawn, but
the burden is upon the plaintiff to satisfy the jury that there was no con-
tributory negligence on the part of the injured person.

Plff’s intestate found in Hudson River ; when last seen alive,
she was crossing deft’s bridge in the evening, about time draw
opened, no one saw her, splash heard like something falling in
water, bridge had a way for foot-passengers, railing on each
side, stop-gate at each end of draw, let down by windlass when
draw open, men at gates signalled by whistle from engine when
to let them down; issue of fact whether gate was lowered;
expert evidence not customary to have gates of any kind on
drawbridge admitted; on cross of expert, question by plff
whether it was proper to have drop-gates on footway when
draw open excluded ; court charged if gate not entirely closed
but its bottom 2% feet from bridge floor, plff could not recover;
also charged, it is not enough to prove facts from which either
the conclusion of negligence or the absence of negligence may
with equal fairness be drawn but the burden of proofis’ on the
plaintiff to satisfy the jury that there was no contributory neg-
ligence on the part of the deceased,

(Verd. for deft. exc. at Gen.: ‘T.—Exc. overrul. atGen. T. judg.
ord. on verd.—Aff.)

1

McCosksr v Long Isuanp R. R. Co. 84 N.Y., 77.

A yard-master of a railroad and an employee engaged under his directions
in moving a broken car to the repair shop, are fellow-servants.

Plff’s intestate, employee, attaching a chain to a car under
direction of deft’s yard-master, ‘bumper of car broken, chain
being attached so that car could be hauled into repair shop,
yard-master negligently signalled engineer to back engine in-
testate crushed.

(Verd. $5,000.—Aff.at Gen, T.—Rev. new tri. ord.)

FRANK v. CHEMICAL Nat. BANK. 84 N. Y., 209.
A depositor owes no duty to his bank to so conduct an seinen of his:
returned vouchers as will necessarily lead to a discovery that some of
them are forged.
242 Cases CoNDENSED, (1881.

 

Note.—This case should, in tendency at least, be taken asa limitation of
Weisser v. Denison, and if the opinion of Andrews J. on page 213 is to be fol-
lowed, it may some day be held that where a bank periodically balances its
depositor’s bank book and returns him the paid checks, the depositor owes
it a duty to look them over. And yet, how is the depositor to be able to
tell whether a payee’s endorsement is genuine? On the other hand, 1, by
a timely examination of his vouchers, he can save the bank from u loss,
why should he not in all fairness be bound to do so?

TOLES v. ADEE. 84 N. Y., 222,

The neglect of a plaintiff, after due request by the surety of an arrested de-
fendant, to enter judgment and take the defendant in execution when he
could do so discharges the surety.

BRASSEL v. N. Y. C, & H. R.R. R. Co. 84 N. Y., 241.

A passenger who alights from a train at the invitation of the company is
not bound to be on the lookout for trains coming upon tracks which he
must cross to get away.

Or,

A passenger who alights from a train at the invitation of the company at a
place where there is no depot, has the same right to be protected from
passing trains as he would have at a depot.

Plff's intestate, passenger, trains stopped to let off passengers,
no Station there, twenty tracks, deceased was assisting an old
lady, no way to get away but to cross the tracks, started to
cross, struck by a train, behind time, might have seen it, if she
had looked ; court refused to charge that her omission to look
was negligence.

(Verd, $2,000.—Aff. at Gen. T.—Aff.)

Masterson v, N .Y.0. & H.R. RB. B. Oo. 84 N.Y, 247.

A railroad company is not relieved from liability for damages resulting
from an unsafe crossing by the fact that a street-car company whose
tracks cross at the same spot is also under a duty to keep the crossing
safe.

The negligence of the driver of a conveyance is not to be imputed to one
who is riding in it upon invitation and not controlling the driver.

Plff's intestate, riding in a wagon by invitation, fore wheel
plunged into rut in deft’s crossing, crossing of city street, in
1881. ] Cases CONDENSED. 243

 

dangerous condition, street-car track over it, street-car company
was to keep street between its rails in good repair, deft was to
keep the crossing safe, driver not under deceased’s control,no
evidence that he drove into rut wilfully, deceased thrown head-
long from the seat by the jolt.

(Verd. $4,000.—Aff. at Gen. T.—Aff.)

McCase v. FowLER. 84N. Y., 314.

It is not negligent for an executor to leave negotiable bonds belonging to
the estate in the custody of a person of good reputation and responsibility,
in whose possession the testator placed them.

ORMISTON v. OLCOTT. 84 N. Y., 339.

It is not negligent for a trustee to accept a security not within the jurisdic-
tion of the court, if it is the only way to secure the estate.

‘The rule that an executor is liable for the negligence of a co-executor
applies as well where the executors are also trustees.

An executor or trustee is not necessarily negligent because he omits to fore-
close a mortgage when it is due. :

Lorrus v. UNION FERRY Co. 84N. Y., 455.

The fact that a small child might slip through an opening in a guard-rail of
a bridge, is not enoug by itself to admit of an imputation of negligence
in the bridge owner fur maintaining the rail in that condition, where it is
shown that vast numbers of passengers, adults and children, have for
years passed by such guard-rail in safety.

Plff's intestate, boy of 6, fell through open space in railing at
side of landing bridge at deft's ferry pier, space 6 feet long, 22
inches high ; forty millions of persons passed annually over
deft's ferries, guard-rails similar to one in question.

(Verd. $2,500.—Rev. at Gen. T. new tri. ord. —Aff, judg. absol.
agst. plff.)

KNurFLE v. KNICKERBOCKER Ice Co. 84 N. Y., 488.
Violation of a city ordinance is not by itself negligence.
Or,
A city ordinance is not of itself sufficient to give a cause of action toa party
injured by an act in violation of its terms.
244 Cases CONDENSED. (1881,

 

Plff's intestate, boy of 5, run over by deft’s ice wagon,
mules attached to it starting up while left by its driver alone in
violation of city ordinance; court charged that the violation of
the ordinance was necessarily negligence.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

NoTe.—See language of Danforth J. as to this case, in Moore v. Gadsden,
93 N. Y., p. 17.

RICEMAN v. HAVEMEYER. 84 N. Y., 647.

Where no evidence is given as to how a person has fallen into an excava-
tion, of whose existence he was aware, freedom from contributory
negligence cannot be inferred.

Or,

Where a plaintiff gives no evidence from which absence of contributory
negligence can be inferred, he must be nonsuited.

Piff’s intestate fell into a tank full of hot syrup while passing
along a lighted passage 214 ft. wide, between two tanks, had
passed over it several times, no one saw the accident.

(Verd. $2,125.—Aff. at Gen. T.—Rev. new tri. ord.)

SLATER v. JEWETT AS REc’R. 85 N. Y., 61.

After a train has started a railroad company is under no duty to its train
hands to see that its rules‘as to the management of its trains are obeyed.

Piff's intestate, employe, killed in collision between two trains
on deft’s railroad; deft had promulgated proper rules and regul-
ations for management of trains, which provided for running of
trains by general time tables, but in certain cases were to move
by telegraphic orders of a train despatcher communicated to
operators at stations and by them handed to engineers, who
receipted for them; collision occurred through concurring negli-
gence of operator and conductor, former gave latter an order,
reported had performed his duty, conductor receipted for the
order in engineer’s name, forgot to give it to engineer, the order
was to stop, but the engineer not receiving it proceeded with
train, collision with intestate’s train resulted. .

(Verd. $3,500, exc. at Gen. T.—Exc. overrul. at Gen. T.
judg. ord. on verd.—Rev. new tri, ord.)
1881. ] Cases CONDENSED. 245

 

Note.—The author has given much care in an attempt to state the rule of
this case so that it shall not conflict with that of the Flike case. With what
‘success remains to be seen. In that case, the company’s rule was that the
trains should start with a certain number of men. Its train despatcher dis-
obeyed the rule and sent the train off with an insufficient crew. It was
held that that was the master’s negligence. In this case the rule was that
certain telegraphic orders were to be given to the engineer. Its operator dis-
obeyed the rule, and handed the order to someone else. It was held that
that was not the master’s negligence. The only distinction then between
the cases is, that the one involved a rule as to starting a train, the other a
rule as to its management while under way. Query, is this a distinction
on principle?

DONOVAN v. BOARD OF EDUCATION OF City oF N. Y.
85 N. Y., 117.

The Board of Education inthe City of New York is not responsible for dam-
ages resulting from the negligence of those in charge of, or repairing, the
public schools.

PIff, pupil in public school, fell into excavation in yard of
ward school, left uncovered by janitor or workmen making re-
pairs ; janitor and workmen employed by ward trustees, not by
deft; deft organized to exercise purely public functions, agency
for public good, possessing no treasury, receiving no private
corporate benefit from the functions and powers conferred on it.

(Nonsuit.— Aff. at Gen. T.—Aff.)

See next case.

DONOVAN v. MCALPIN ET AL. 85 N. Y., 185.

A school superintendent whose duty is to superintend the repairs to
public school buildings is not the superior of workmen employed by the
school trustees to make repairs.

Ward trustees of public schools, acting gratuitously for the public are not
responsible for the negligence of persons employed by them to do things
which they are not personally bound to do.

Same accident as in preceding case. One deft in this case
was a school superintendent, duty to superintend repairs to
public school buildings, whether he acted gratuitously does not
appear; the other defts were ward trustees of public schools,
‘duty to keep school property, and to authorize needful repairs
within certain limits; acted gratuitously ; it was assumed that
none of defts had been personally negligent, but that the negli-
gence was that of workmen employed by the trustees to make
repairs.

(Nonsuit.—Aff. at Gen. T.—Aff. )
246 Cases CONDENSED. {1881.

 

OCHSENBEIN v. SHAPLEY. 83 N, Y., 214,

Reckless disregard by a servant of his master’s instructions as to the way of
doing a thing is not sufficient to warrant the inference that the servant
was acting outside the scope of his employment.

A passer-by on a street, who stops out of curiosity to observe something
going on, and is warned of danger, cannot be said as matter of law to be
free from negligence.

PIff injured by explosion of deft’s boiler, being tested in a
street ; defts had instructed their superintendent to test it up to
one hundred and fifty pounds for a customer; he, out of bravado
tested it beyond one hundred and ninety-eight carelessly, and
it burst; plif a passer-by, stopped out of curiosity; he and
others warned of danger by the superintendent, remained, others
went away ; court refused to leave to the jury, the questions
whether the superintendent was acting in the line of his em-
ployment, and whether plff was negligent. Injury, head and
face cut, rib fractured, arms scalded.

(Verd. $2,c00, order on case and exceptions denying new
trial.—Aff. at Gen. T.—Rev. new tri. ord. on last ground, af-
firming first.)

Morton v. THURBER. 85 N, Y., 550.

The fact that an owner of property, on which building operations are
being carried on by contractors, employs an agent to overlook their work
and give them instructions, does not operate to make the owner liable for
damages resulting from the negligence of the contractors in the absence
of evidence showing that such injury was the result of the instructions.

STILWELL v. PRIEST. 85 N. Y., 649.

Plff while walking in street, injured by deft’s bill-board being
blown against him, negligently erected. Question was whether
all of the defendants were interested in erecting and maintain-
ing the bill-board ; this depended on a contract between them.
Held, order for its inspection within discretion of court below.

HOLSAPPLE v. RoME Wat, & Oc. R. R. Co. 86 N. Y., 275.

A common carrier owes to ashipper, whose property it carries under a con
tract exempting it from liability for damages by fire, the duty of supplying
its train with proper appliances to put fires out.
1881.] Cases CONDENSED. 247

 

Plffs sheep burned in transit, had contracted to release deft
from liability for injuries to them caused by burning of hay,
straw or other material used for feeding them or otherwise;
exemption from liability for negligence; injury due to deft’s
neglect to supply train with proper appliances to extinguish
fire. Recovery sustained.

In RE DEAN. 86N. Y., 398.

An assignee for benefit of creditors is guilty of negligence if he pays any
expenses on property of the assignor which is mortgaged for more than
its value.

SALTER v. Utica & Buack Riv. R. R.Co. 86N. Y., 401.

(Ist Appeal. 59N. Y., 631.)
(Qa « 7 «© 278.)

Question as to whether interest to be added to the verdict
from time of death under chap. 78 of Laws of 1870 should be
seven per cent. the rate at time of death, or six per cent, under
Laws of 1879, chap. 538, in force when verdict was rendered.
Held, six per cent. proper rate.

Surry v. BRitisH & N. AM. S. P..Co. 86 N. Y., 408.

When through the negligence of a common carrier a passenger is frightened
into a state of helplessness, the carrier owes a duty of protecting such
passenger from harm occurring while and because helpless.

Plff steerage passenger, berth above her fell through deft’s
negligence, commotion produced, she thought ship sinking.
became helpless, removed from berth, placed on her feet, unable
to control herself, thrown by ship's rolling against a door,
fainted; picked up by steward placed in wet place while berth
being repaired. Injury to back.

(Verd. $2,000.—Aff. at Gen. T. —Aff.)
248 CasEs CONDENSED. (1881.

 

SHaw v. JEWETT AS REC’R. 86N. Y., 616.
A traveller approaching a railroad crossing is not bound to do more than

make all reasonable effort to see a train that a prudent man would make
in like circumstances. *

Plff injured by deft’s train at street crossing, bell not sounded,
error claimed in charge, which is substantially incorporated in
the rule here given. Injury to back and head, wife hurt, died,
horse killed, wagon demolished.

(Verd. $2,360.—Aff. at Gen. T. Aff.)

Hart v. Direct U.S. CaBne Co. 86 N, Y., 633.

The negligence of a telegraph company in erroneously transmitting a mes-
sage, which as delivered to it is an unintelligible jargon, is not the proxi-
mate cause of a loss occasioned by the receiver of the message acting
upon his own interpretation as to what it means,

HorrMan (Henry) v. N.Y. 0.& H.R. R.R.Co. 87N. Y., 25.

A brakeman on a train has implied authority to remove trespassers
from it.

The fact that a carrier’s servant, having authority to remove trespassers
from its trains, removes a trespasser in an illegal manner, does not exon-
erate the carrier from liability for the-damages occasioned thereby.

Plff, boy, kicked by deft’s conductor or brakeman off steps of
moving train while stealing a ride; general railroad law pro-
vides that a passenger refusing to pay may be put off the train
by the conductor ata usual stopping place, or near any dwell-
ing house on stopping the train; deft’s regulations authorized its
conductors to remove persons not paying, he to be governed
in so doing “by the provisions of law,” no proof of any express
authority of that kindin a brakeman. Injury, leg amputated.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

NouaN v. BR’LYN City & N.R.R. Co. 87 N.Y., 63.

It is not negligent for a passenger to ride on the front platform of a street
car, if no notice is posted up forbidding it, and the carrier permits it.

Inference of negligence in the management of a street car may be drawn
from its driver’s sudden stopping of the horses, and inability to apply the
brake for a necessary stop.
1881. } CasEs CONDENSED. 249

 

Plff, passenger, riding on front platform of deft's street-car,
smoking, his fare taken by conductor, thrown off by a jerk to
car, occasioned by one of the horses plunging under a sudden
blow of whip by driver, brake-chain failed to work, car ran
over him ; deft had notice posted forbidding passengers to get
on or off front platform, silent as to their riding on it, deft’s
custom to permit riding on it. Injury, leg amputated.

(Verd. $3,000.—Aff. at Gen. T.—Aff.)

Moore v. GADSDEN. 87 N. Y., 84.

It is not negligent for a householder to permit water dripping from his
premises to drain over the sidewalk into the gutter.

Plff slipped on ice on sidewalk in front of deft’s premises,
formed of melted snow, dropping on it from the steps of deft’s
house, sidewalk being graded, so as to discharge into the gutter
“water thus dripping, no ordinance proved ; court charged ver-
dict might be found for plff if the ice in question was the result
of water flowing from melting snow, or rain running from deft’s
premises upon the sidewalk. Injury, wrist broken.

'(Verd. $800.—Aff, at Gen. T.—Rev. new tri. ord.)

Cosgrove v. N.Y. Cent. & H. BR. RB. R.Co. 87 N. Y., 88.

Damage occurring through the sudden unmanagebleness of one’s horse,
caused by the unheralded approach of a train shooting out of a cut near
acrossing, is to be deemed due to the neglect to give the signals rather
than to the conduct of the animal.

Plffs intestate killed at deft’s crossing by engine, statutory
- signals not given, riding in wagon on invitation of driver, driver
was seen on approaching the crossing pulling on the horse,
when suddenly the ‘engine shot out of a cut without warning,
horse became unmanageable, plunged ahead, brought wagon
directly in front of engine.

(Nonsuit.—Aff. at Gen. T,—Rev. new tri. ord.)
250 Cases CONDENSED. [1881-82.

 

WENZLICK v. McCorter. 87 N. Y., 122.

It is not a nuisance to allow water coming from a roof through a pipe to be
discharged over the sidewalk, in the absence of an ordinance prohibit-
ing it. <
Plff slipped on ice on sidewalk in front of deft’s premises,

formed from accumulation of water coming from porch on

adjoining premises down through a pipe on deft’s house just at
the dividing line, both houses built by a;ccommon owner with
similar porches, the pipe carrying off water from both porches,
deft on buying his house disconnected the pipe from his own
porch, suffered it to remain and carry off the water from the
other porch. Injury, ankle fractured.

(Verd. $2,000.—Aff. at Gen. T.—Rev. new tri. ord.)

WHITWORTH v. ERIE R’way Co. 87 N. Y., 413.

Plff’s cotton destroyed in fire of deft’s freight depot, commu-
nicated by high wind from its passenger depot, separated from
the other by navigable slip 80 feet wide; origin of fire not shown;
cotton being carried by deft as intermediate carrier for despatch
co. with whom plffhad contracted for whole journey, bill oflading
containing exemption clause as to fire. Held, deft entitled to
benefit thereof, also evidence insufficient to show negligence on
its part, or of improper delay in delivery to next carrier.

GoILLOTEL v. THE Mayor &o. or N.Y. 87 N. Y., 441.

Plff injured through neglect of deft to keep its sidewalk in
repair. Cause of action accrued in March 1873, action began
March 1877 ; when it accrued the statute of limitations then in
force as to such actions was six years; such statute made
changes in prior statutes, contained saving clause, that such
changes should not extend to causes of action which had already
accrued ; in 1876 an amendment to it was made, shortening the
time of such action as this to one year. Held, saving clause
applied and action not barred. Injury, knee-pan broken.

(Verd. $500, set aside, nonsuit.—Aff. at Gen. T.—Rev. new
tri. ord.)
1882. ] @asEs ConDEnseED. 251

 

Ryan v. Winson. 87 N. Y., 471.

A landlord owes no duty to the emloyees of his tenant to see that the leased
premises are safe for their use,

Plff employee of deft’s tenant, caught by revolving shaft, shaft
upright, extending from bottom of building up through each
floor to give power to each floor, shaft unguarded, neara parti-
tion, plff passing between the two; her employer had hired the
floor of deft, with the shaft in its unguarded condition, and had
then himself erected the partition ; plff offered to show that the
erdinary construction of such shafts required them to be
guarded, that the shaft had no connection with the power
rented to her employer, that the unguarded shaft was danger-
ous, and its construction defective ; excluded.

(Nonsuit.—Aff. at Gen. T.—Aff.)

MEAD v. STRATTON. 87 N. Y., 493.

The death of.an intoxicated man as the result of his intoxication is an injury
to the means of support of his wife where she is dependent on him for
support,

A married woman, who permits her husband to sell liquor on her premises,
is liable under the civil damage act for the damage resulting from intoxi-
cation caused by such sale.

The fact, that the owner gave her husband her consent to carrying. on the
business of selling liquor on her premises before the civil damage act was
passed, is immaterial where she did not stop it afterwards.

Piffs husband, intoxicated by liquor sold to him by one deft
at a hotel owned by the other and permitted to be occupied with
knowledge that liquor was to be sold; found dead in buggy,
head hanging between body and wheel so that it had been
beaten by the wheel; deft owner had bought the hotel before
civil damage act passed, had allowed her husband the other
deft, after act passed, to continue to sell at the bar, she running
the hotel.

(Verd. $1,150.—Aff. at Gen. T.—Aff.)

QUINN v. PowER. 87 N. Y., 535.

When a servant is employed to transfer passengers for hire across a river
in a ferryboat, his actions in transferring a person, riding free without his
master’s knowledge, from the ferryboat to a boat in the river are within
the scope of his employment. :
252 Cases CONDENSED. [1882.

 

Or,

The fact that a person is being carried free without the knowledge of the
master does not as to third persons operate to make the action of the
servant in transferring such free passenger from a ferryboat to another
boat during a trip, one which is not within the scope of his employment.
Plff’s intestate drowned, collision between deft’s ferryboat and

canal boat on which he was, boat part of a tow, those in charge

of ferryboat were engaged in transferring to a boat in the tow

a person whom they had carried free, without knowledge or con-

sent of deft,

(Verd, directed for deft.—Aff. at Gen. T.—Rev. new tri. ord.)

DERRENBACHER v. LEH. VALLEY R. R. Co. 87 N. Y., 636,

The mere fact, that a defendant is the owner of a vessel which is being
loaded by other persons, is not sufficient to make such defendant
responsible for defective appliances used in the loading.

Or, ;

Such fact casts upon him no duty to see that the appliances used in such
loading are safe,

Plff engaged in loading ore on to deft’s cars, injured by fall of
tub attached to derrick, latter used to discharge ore from canal
boat into deft’s cars at Perth Amboy, rope defective, pier not
owned by deft, loading not done by deft, not shown that deft
owned or furnished the derrick, or employed the men working
it. Injury, foot amputated,

(Verd. $3,c00.—Aff. at Gen. T.--Rev. new tri. ord. )

SMEDIS v. BRookiyn & Rock. B. R.R. Co. 88 N.Y., 13.

The failure of a person at a crossing to look or listen for an approaching
train is only to be deemed negligent, when, if he had looked or listened,
he would have seen or heard the train. :

PIff's intestate killed at deft’s crossing, or near it;.deft and
another co. had tracks in city avenue, deft’s train was coming
in one direction, down grade, dark night, no headlight, no bell
rung, no whistle sounded, no noise, steam shut off; train of other
co. coming from opposite direction, had headlight, sounded
signals, made great noise; deceased was seen to look towards
latter train, crossed in front of it, deft’s train reached the cross-
ing first, deceased found dead near it

(Verd. $3,250.—Aff. at Gen. T.—Aff.)
1882. | CasEs CONDENSED. 253

SALTER v. Utica & Buack Riv. R. R. Co. 88 N. Y,, 42.

(Ist Appeal. 59N. Y., 631.)
(2d 7 75 ‘* 273.)
(3d * 86 *“ 401.)

It is not necessarily negligent to approach a railroad crossing in a heavily.
loaded sleigh on a slow trot down a slight grade on an icy day.

Great speed of a railroad train at a crossing, while not in itself necessarily
negligent, may in connection with other circumstances tend to establish
negligence in the management of the train.

A person, who in a situation of danger pursues a course which persons of
prudence and self-possession would adopt under the same circumstances,
is not negligent in so doing.

On the last trial‘two additional facts were shown, (1) that
until the deceased was within 21 ft. of the track he could not
see the approaching train; an opening 230 ft. back allowing a
glimpse only of the track, but deceased not at that point of the
highway, when deft’s train at that point of the track, (2) near the
track there was a slight descent to the track, road being icy and
load heavy, deceased could not stop after seeing the train, could
not turn to side because of snow bank; only thing left him, after
ineffectual attempt to stop, which he made, was to jump, in
doing which he met his death; court charged that the great
speed in the train was not necessarily negligent, but in con-
nection with other facts and circumstances might tend to estab-
lish it, also if course pursued by deceased was one which
persons of prudence and self-possession would adopt under
the same circumstances, he was not negligent.

(Verd. $4,500.—Aff. at Gen. T. —Aff.)

BRINCKERHOFF v. Bostwick. 88 N.Y., 52.

Directors of banks are liable for the loss of the bank’s funds through their
neglect and inattention to their duties.

Murpny v. Bosroy & ALB. BR. R. Co. 88 N. Y., 146,

The rule of masters’ liability for an injury toa servant from a defective
machine, does not apply to servants who while repairing a machine are
injured by each others’ negligence.
254 Cases CONDENSED. (1882.

 

Plff’s intestate, employe, repairing deft’s engine at machine
shop, killed by explosion due to negligence of co-servant in
failing to detect weakness in the boiler, the engine having
been sent to the repair shop under the deft’s rules for examina-

tion and repairs.
(Nonsuit,—Aff. at Gen. T,—Aff.)

ERWIN v. NEVERSINK St. Co. 88 N. Y., 184.

itis negligent for one vessel to attempt to pass another in a manner not
allowed by the authorized rules of navigation.
It is not negligent for a vessel to omit to watch for danger from behind.

Piff's intestate, engineer on small propeller, drowned by his
boat sinking, run into by deft’s steamboat, latter trying to pass
former in Hell Gate in disobedience of rules of navigation
authorized by United States, also by this State; deft’s boat had
signalled intention to pass, signal not answered because not
heard; deft’s boat, assuming that it had been heard and failure
to answer meant acquiescence, tried to pass; the smaller boat,
not intending to go through the Gate, but up the Harlem river,
changed her course at the moment without knowing deft’s boat
was behind,

(Verd. $5,000.—Aff. at Gen. T.—Aff,)

 

DoBIECKI v, SHARP AS REC’R. 88 N. Y.. 203.

A railroad company must not construct its cars and station platf rms so
that the car projects over the platform.

A passenger is not bound to guard himself against an improper construc-
tion of a railroad company’s car or platform of which he has no knowl-
edge.

Plff’s intestate, passenger, standing on platform of station on
Long Island R.R. of which deft receiver, struck by passing car,
so constructed as to project over the platform a few inches.

(Verd. $1,500.—Aff. at Gen. T.—Aff. )
1882. } Cases CoNnDENSED. 255

 

DURKIN v. SHARP AS Rec’r. 88 N. Y., 225.

Where an injury results from one of two causes, one of which inculpates
and the other exculpates the defendant, it is for the jury to say which is
the producing cause.

A railroad company owes to its employees, not only the duty to inspect
its tracks, but to inspect them properly.

Or,

The judgment of a track inspector that the track is safe, is not ves adjudi-
cata against an employee.

Plff's intestate, engineer, Long Island R. R. deft receiver,
killed by derailment of engine, due to defective condition of
track or breaking of flange of driving-wheel because of un-
discoverable flaw; evidence sufficient to warrant court in sub-
mitting to jury which was the cause, charging that if latter was
the cause, deft not liable; refused to charge if track inspected
within reasonable time prior to accident by competent inspector
and by him adjudged safe, plff could not recover.

(Verd $5,000.—Aff. at Gen. T.—Aff.)

DEFOREST v. JEWETT AS REc’R. 88 N. Y., 264.

PIff’s intestate, car coupler, Erie Railway, deft receiver, killed
coupling cars in freight yard, drained by open sluices, in plain
sight, running under the tracks between the ties, had worked in
yard two years, knew of the sluices, stepped into one, fell
under moving train.

(Nonsuit.—Aff. at Gen. T.—Aff.)

The court say this case is indistinguishable from Gibson z.
Erie R. Co., 63 N. Y., 449.

ConNELLY v. N. Y. C. & H. RB. BR. R, Co. 88 N. Y., 346.

He who would emulate the chicken in foolishly shooting from one side of
the highway to the other in front of a fast travelling vehicle, must, like
the chicken, take the risk.

Plff’s intestate killed by train at deft’s crossing, was driving
team, could have seen train half mile off, could have stopped
his horses, on observing the train near him whipped up his
horses, tried to get over in front of it.

(Verd. $1,0co.—Aff. at Gen. T. —Rev. new tri, ord.)
256 CasEs CoNDENSED. [1882.
Moyer v. N. Y. C. & H.R. BR. R. Co. 88 N. Y., 351.

A railroad company is not liable for damages to an adjoining proprietor
resulting from the overflow of the water of a stream caused by the neces-
sary and proper elevation of its road-bed not in the channel of the stream,
but upon its own land. 7

 

Crorr v. WILLIAMS. 88 N. Y., 384.

It is not negligence in an executor to allow his co-executor to retain the
proceeds of a sale of the trust estate, even though the co-executor is
insolvent and the payment is made in presence of both,

MorRRELL v. Peck. 88 N. Y., 398.

It is not necessarily negligent for a foot passenger in crossing a bridge to
walk on an unguarded side rather than on a foot-way obstructed by snow.

Evidence that Commissioners of Highways repaired a highway immediately
after an accident is admissible to show possession by them of sufficient
funds, so as to afford ground for the inference of negligence, in failing to
make the repairs sooner.

Plffs intestate, who died after judgment, fell from bridge,
which it was duty of defts, as Commissioners of Highways, to
keep safe for travel, side he fell from unprotected by guard-rail,
foot passenger-way on other side duly railed but obstructed by
snow, he walked in driveway, stepped to unguarded side to
allow wagon to pass; evidence was allowed that next day defts
erected railing on that side, this to show their control of bridge
and possession of funds. Injury to back and ankle.

(Finding for $1,000,—Aff. at Gen. T.—Aff.)

Murpuy v. N. Y.C.& H.R. R.R. Co. 88N. Y., 445.

Where a person for whose benefit an action may, be maintained under the
Death Act, is legally liable to pay for the funeral expenses of the person
killed, the amount is recoverable in such action.

Or,

In an action under the Death Act, the funeral expenses of the deceased may
be recovered if the person for whose benefit the action is prosecuted was
legally liable to pay them.

Plff's intestate, passenger, killed by deft’s negligence, funeral
expenses paid by plff deceased’s husband, allowed as item of

damage.
(Verd. $4,000.—Aff. at Gen, T.—Aff.)
1882. ] Cases ConDENSED. 257

 

Harvey v. N. Y.C.& H.R. BR. R. Co. 88 N. Y. 481.

The fact that the master has negligently employed an inexperienced servant
or overworks him, is immaterial, if the injury to a fellow-servant results
not from such servant’s inexperience or overwork, but only from en
fulness.

Plff’s intestate, fireman, killed, engine thrown off track, open
switch, left open through carelessnes of switchman, latter in-
competent, inexperienced, also his duties had become too oner-
ous for him to perform properly, by reason of deft’s discharge
of three out of six employees at that point ; it appeared on plff's
case, that the switchman’s leaving the switch open, was not
due to inexperience or overwork, but entirely to forgetfulness.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Notre.—The decision in this case seems to be controlled by the principle,

that the negligence relied on by the plaintiff must have been the cause
of the injury.

WHITNEY v. MARTINE. 88 N. Y. 535.

It is negligence in an attorney, employed to invest money on bond and mort-
gage, toinvest it in smallsums secured by bonds, the obligors of which
are insolvent, and by mortgages on real estate upon which there are
already mortgages for a large amount.

ETHERINGTON v. Pros. Park & ©. I. R. R. Co.
88 N. Y., 641.

In an action under the Death Act, a charge to the jury that a verdict for the
plaintiff must be for the pecuniary injury, the amount of whichshould be
in their good judgment, subject to the limit placed by the statute, is not
erroneous.

Plff's intestate, a child, negligently killed by deft in public
street; the only questions on appeal were upon the charge, (1)
as to a remark of the court which if erroneous was cured by
charging a request of the appellant, (2) court charged, that the
amount of the verdict must be for the pecuniary injury, the
amount of which should be in the good judgment of the jury,
subject to the limit placed by the statute.

(Verdict $1,500.—Aff. at Gen. T.—Aff.)
258 Cases CONDENSED. [1882.

 

McKeever v. N. Y. C. & H.R. R. R. Co. 88 N. Y., 667.
Rule in Culhane case, 60 N. Y., 133, applied.

Piffs intestate killed by deft’s train at crossing, issue was
whether signals given, deft’s witnesses testifying positively that
they heard them, plffs witnesses not testifying that they were
not given but that they did not hear them.

(Nonsuit.—Aff, at Gen. T.—Aff.)

LitTLEWoop v. THE Mayor &o. oF N. Y. 89 N. Y., 24,

Where a person injured by the negligence of another obtains in his lifetime
a recovery of damages for the injury, and afterwards dies from the effects
of the injury, his personal representatives cannot maintain an action for
damages for causing his death.

Or,

Recovery by the injured person in his lifetime of his damages from the
wrongdoer is a bar to an action against that wrongdoer under the Death
Act.

Piff’s intestate injured through deft's negligence, death result-
ed; 1n his lifetime he had sued deft for same injury, recovered
judgment, paid.

(Nonsuit exc. at Gen. T.—Exc. overrul. at Gen. T. judg. ord.
for deft. —Aff. )

Nore the use of the words ‘that wrongdoer” in this rule. It might be
that if there were two several wrongdoers, only one of whom had been sued
by the deceased, a recovery against the other might be permitted to the per-
sonal representatives under the rule laid down in Atlantic Dock Co. v. The
Mayor, 53 N. Y., 64. :

Hence the necessity in stating the rule, to take note of the fact that
it was the same wrongdoer who had been sued in the prior action.

Lent v. Howarp. 89 N. Y., 169.

If a trustee, holding trust funds for investment, neglects for over six months
to invest them, he. is chargeable with interest unless he can justify the
delay.

PLatz v. Ciry OF Conons. 89 N. Y., 219.

A municipality must keep its streets in a safe condition for travelling on
them by Sabbath breakers, as well as for those travelling lawfully.
Or,
1882. ] Cases ConDENSED. 259

As the rain falls on the just as well as on the unjust, so must a municipality
keep its streets sate for the unjust as well as the just.

Plff injured while riding in carriage, upset, pile of dirt left by
deft in the way from an excavation it made in its street, driver
not negligent, accident on Sunday, plff violating Sunday law.
Injury, hip injured.

(Verd. $4,000.—Aff. at Gen. T.—Aff.)

ScHuttz v. THIRD Avge. R. R. Co. 89 N. Y., 242.

A verdict for an amount greater than that stated in the cause of action as
the amount of,the damages can be sustained under § 722 of the code allow-
ing amendments to sustain a judgment.

As to main question, rule in Rounds case, 64 N. Y., Hoffman, 87 N. Y.,
Jackson, 47 N. Y., and other cases reiterated.

Plff passenger, thrown from deft’s car by conductor, com-
plaint stated three causes of action, damage alleged in each
$1c,000, judgment demanded $20,cco; evidence as to state-
ments out of court by witness for plff which on his cross he had
denied making, excluded. Injury, both arms, two ribs, one leg
and collar bone broken.

(Verd. $15,000.—Aff. at Gen. T.—Rev. new tri. ord. because
of exclusion of above evid.)

Harris v. Perry. 89 N. Y., 308.

Where there are several occupants of a building governed by the law as to
trap-doors at each floor in elevator shafts, each is only bound to see that
he himself closes the trap-door after his own use of the elevator.

PIff fell down elevator shaft, from basement to subcellar,
building in New York City occupied by defts and another firm
as tenants, defts leased four upper floors, other firm the first
floor, basement and sub cellar; each had common use of ship-
ping room in basement, with use of elevator ; by Laws of 1874,
chap. 547, § 5, it is provided, there shall be in buildings in N. Y.
City trap-doors in elevator shafts at each floor as may be
directed and approved by superintendent of buildings which
shall be kept closed at all times except when elevator in actual
use by occupants of building; plff lawfully in shipping room,
stepped to elevator shaft to call up to defts; had done so on
260 Cases CONDENSED. [1882

 

previous occasions, did not know shaft went to sub cellar, dark,
hatchway open, fell in ; no evidence that elevator had been last
used by defts nor that trap-door left open by them. Injury, two
ribs broken, injuries to head and brain impairing sight, shock.

(Verd. $5,000, exc. at Gen. T —Exc. overrul. at Gen. T. judg.
ord. for plff.—Rev. new tri. ord.)

FITzPATRICK v. SLOCUM ET AL. 89 N. Y., 358.

The duty of a public officer to maintain streets and bridges in good repair
and safe for travel does not include a duty to protect travellers from an
unsafe condition of the highway produced by opening a drawbridge over
the operation of which they have no control.

Plff fell between sidewalk and drawhridge over canal, in
Brooklyn, defts commissioners of city works, on salary, duty
to keep sidewalks, streets and bridges in safe condition ; bridge
built by special com’rs, turned over to city in same condition as
when built; guards stationed to keep persons from walk-
ing off when draw open; City Police Board was to and did
appoint keeper of bridge, no persons appointed to guard the
street when draw open; bridge-keeper had notified deft’s
ass't engineer place was dangerous, two accidents having
occurred.

(Nonsuit.—Aff. at Gen. T.—Aff.)

Nicuonasv. N. Y.C.& H.R. R. BR. Co. 89 N. Y., 370.

PIff's trees lost by deft’s negligent delay in transit; shipping
contract contained exemption clause against ‘‘damage occa-
sioned by delays from any cause or from change of weather.”
fleld, damage from negligent delay not included.

Karn v. Smiru. 89 N, Y., 375,
(Ist Appeal. 80N. Y., 458.)

‘The fact that a servant can see a defect in a machine is not enough as
matter of law to charge him with the risk of using it, if he did not know
that it was a dangerous defect.
1882. | Cases CONDENSED. 261

 

‘Whether the use by a servant of a defective machine in a hurried manner
to get through work by a certain hour, when, while seeing the defect, he
does not know that it is a dangerous one, is negligent, is a question of fact.

On the second trial proof was, plff a carpenter, directed by
foreman to assist in loading car wheels on a car by means of
jigger, cars rolled up inclined plane made by two rails from track
to car, jigger out of order, in ways plff could see, but of the
effects thereof he did not know; foreman knew it was unsafe,
but ordered its use, plff and the others were hurrying to get
through, handled jigger roughly, it fell, let down wheels, which
Tan against plff.

(Nonsuit.—Rev. at Gen. T. new tri. ord—aAff. judg. absol.
agst. defts.)

First NATIONAL BANK v. FourtH Nat. Br. 89N. Y., 412.
(Ist Appeal. 77 N. Y., 320.)

Where the negligence of a bank in the collection of a foreign draft has re-
sulted in damages to the holder, the judgment of a court of competent
jurisdiction, in an action in another state by the holder against the drawer,
that the latter is discharged, is conclusive in this state against the bank
as to the amount of damages resulting from its negligence.

CLEWS v. BANK oF N.Y. BANKING Ass’n. 89 N. Y.. 418.

PLff on faith of statement of deft’s teller that a certification of
a draft on it was good, accepted it in payment of bonds; draft
had been endorsed by payee, mailed to payee, failed to reach
him, some one else had presented it to deft, had it certified, then
raised the amount, changed date, offered it to plff, who asked
deft’s teller if certification was good ; deft had in fact been noti-
fied by the endorsee he had not received it, and payment had
been stopped. Held that in absence of evidence of negligence
or bad faith, deft not estopped by teller’s statement.

DEVLIN v. SuitH. 89N., Y., 470.

A master, by delegating to a competent contractor the duty of providing a
safe appliance for the use of his servants, escapes responsibility to his
servants for the insecurity of the appliance.
262 CasEs CONDENSED. [1883.

 

Where a person contracts to furnish to another an appliance to be used by
the latter’s servant, he owes a duty to the latter to see that it is safe for
such use...

Plff's intestate killed by breaking of improperly constructed
scaffold; deft Stevenson scaffold builder, built it under contract
with deft Smith to enable latter to carry out contract to paint
dome of public building; deceased, in Smith's employ, was.
washing dome when it broke.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord. as to Steven-
son, aff. as to Smith. }

Marrs v. MANHATTAN R. E. Assoc. 89 N. Y., 498.

A permit to make an excavation in a street does not protect the excavator
from liability to an adjoining owner for damages from water cast upon
his premises by reason of the excavation, even though he was not guilty
of any negligence.

PIff’s assignor’s goods injured by flow of water collected on
adjoining premises by reason of an excavation in the street
made by deft under vermit of city authorities ; court refused to »
submit to the jury the question whether deft was negligent.

(Verd. for plff.—Aff. at Gen. T.—Aff. )

GROTH v. WASHBURN. 89 N. Y., €15.

Piff crossing a street, run over by deft’s carriage negligently
driven by his servant in his business. Injury, face lacerated.

(Verd. $550.—Aff. at Gen. T.—Aff.)

No question of law.

CLEVELAND v. N. J. STEAMBOAT Co. 89 N. Y., 627.
(ist Appeal. 68 N. Y., 306.)

On second trial plff sought to show that the gate itself and not
merely the top rail, had not been put in place; court sent that
issue to the jury, but this submission was held to be error be-
cause that the gate had been put in place was established by
“uncontradicted evidence.” Injury, general injuries to health

. caused by submersion, appeared more serious than on first trial,

(Verd. $5,000.—Aff. at Gen. T —Rev. new tri. ord.)
1882. ] Cases CONDENSED. 263

 

JONES v. MorGan. 90N. Y., 4.

A warehouseman who lets a portion of his warehouse to a person for the
storage of goods must use due care to see that they are not stolen.

LEEDS v. Met. Gas Licgut Co. 90N. Y., 26.

To entitle an injured person to recover compensation for loss of time,
evidence of its value must be given.

Plff injured by explosion of gas in his cellar which had
escaped from a break in deft’s main ; only question on appeal
was on charge that compensation for lost time could be award-
ed ; no evidence of its value had been given, nor of any facts
on which estimate could be based. Injury, body and head
burned, hair burnt off and both hands permanently injured,
shock. ;

(Verd. $7,500.—Aff. at Gen. T.—Rev. new tri. ord.)

-McKINNEY v. JEWETT AS ReEc’R. 90 N. Y., 267.

Plff's hams shipped over deft’s road under bill of lading prov-
iding carrier not liable as carrier while goods were at any sta-
tion awaiting delivery, and that they must be removed during
business hours ; they arrived on a Thursday ; plff was told for
two days had not arrived; on Saturday afternoon, too late for
removal, notice of arrival given to plff; removed them Monday
morning. Held, defts liable as carrier, goods not awaiting de-
livery until notice of arrival given, and reasonable opportunity
afforded to remove them.

Harpy v. Crry oF Brooxiyy. 90N. Y., 435.

An act providing that a municipality shall not be liable in damages for any
misfeasance of its officers does not exempt it from responsibility for a
failure to keep its streets in proper condition, where that duty is not
plainly devolved upon such officers and a remedy given against them for
nonfeasance.

PlIff's property injured by a nuisance caused by negligent con-
struction of deft’s sewer; its charter provided that it should not
be liable in damages for any misfeasance ofits common council
264 Cases CoNDENSED. (1882.

 

or officers, but cid not specially devolve upon any particular
officer any duty as to the matter in hand.
(Verd. for plff—Aff. at Gen. T.—Aff.)

ScHwikr v. N.Y. C. & H. R. KR. KR. Co. 90N. Y., 558.

Failure to stop a locomotive, which could have been stopped in time to
prevent an accident, is evidence of negligence,

Even if in a special case, failure to ring a bell ata crossing is not charge-
able against a railroad company as negligence, yet it may be considered
by the party as bearing upon the defendant’s conduct.

Plff boy of 4, run over by deft’s engine at street crossing, was
seen by engineer, who could have stopped engine in time, but
did not; no question of contributory negligence raised; court
left to jury to say whether the fact that the bell was rung or
not, made any difference on the question of deft’s negligence.
Injury, foot amputated.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

STEWART v. B’KLYN Crosstown R. R.Co. 90 N. Y., 588.

A common carrier must protect its passengers from assault by its servants.

Plff passenger on deft’s car; assaulted while on it by deft’s
driver.
(Nonsuit.—Aff. at Gen. T. Rev. new tri. ord.)

Dow.ine v. N. Y. 0. & H. R. R. R. Co. 90 N. Y., 670.

Whether an infant of tender years was personally guilty of negligence is a
question of fact.

Plff a girl of 9, struck at crossing by deft’s tender, latter over-
lapped the track about 2 feet, no bell rung, no flagman at
crossing ; plff looked one way for train, view in the other direc-
tion, whence engine came, ol:structed by shop of deft which
was on the street about 4 feet from track. Injury, leg and toe
of other foot amputated.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)
1882-83. | Cases CONDENSED. | 265

 

BRUSSO v. CITY OF BUFFALO. 90N. Y., 679.

Where an excavation is made in acity street under contract with the city or
a department thereof, it is immaterial, upon the question of the city’s
liability for damages from its dangerous condition, that the city had no
notice of such condition.

A municipality is as much bound to keep the roads within its limits safe
for travel as it is the streets.

A claim for damages resulting from a negligent excavation in a street under
contract with a department of a city government is not within an act re-
quiring claims ‘‘ growing out of the department”’ to be presented to that
department.

Foot passengers are not bound to cross a street on the crosswalk.

Piff fellinto unguarded excavation in highway within city
limits, night, was not crossing on crosswalk, excavation dug
under direction of deft water department by a contractor under
contract therewith; under Laws of 1870, chap. 519, claims
against deft, growing out of the water dept must be presented
to the Water Board for examination ; this claim not so presented;
deft had no notice of the dangerous condition of the excavation.
Injury, hernia.

(Verd. ¢2,000.—Aff. at Gen. Term.—Aff.)

BANK OF OswEGO v. DoYLE. 91N. Y., 32.

A warehouseman is liable for the loss occasioned by an innocent mistake
on his part in delivering goods to a person not entitled to receive them,

URQUHART v. CITY OF OGDENSBURG. 91 N. Y., 67.

A municipality owes no duty to the public to see that the plans upon which
its public works are constructed are safe.

PIff slipped on ice formed on deft’s sidewalk, sidewalk built
according to plan, sloped considerably so as to be unsafe;
court charged that if common council having charge of sidewalk
had considered in advance what would be a proper walk to
construct at this place, deft would not have been Hable for con-
structing a walk of this kind, but that no action had been taken
on it, and it declined to charge that deft could not be held
liable for any fault in the plan of the work. Injury, leg broken,

(Verd, $1,500,—Aff. at Gen. T.—Rev. new tri. ord.)
266 Cases CONDENSED. (18838.

 

Frank v. LANIER. 91 N, Y., 112.

Mere delay of the purchaser of a forged note in detecting the forgery is not
negligence which prevents his recovery of the purchase money.

Renperc v. Tarn Mayor &c. of N.Y. 91N. Y., 187,

Evidence of a regulation of adepartment of a city government prescribing
the height to which bricks may be piled in the streets is admissible in an
action against the municipality for damages occasioned by a fall of a pile
of bricks erected above such height.

The fact, that a policeman charged with the duty of reporting nuisances
might properly assume that a permit had been obtained for a pile of
bricks which he sees in a street, does not excuse the municipality from a
liability for damages resulting from its fall due to its Leing increased to
an unpermitted height.

Plff digging excavation in deft’s street for private corporation,
injured by fall of pile of bricks negligently piled in the street to
an unsafe height by person tearing down building, no permit
obtained for the piling, permits provided for by charter, police
board charged with duty of removing nuisances in streets and
enforcing ordinances, policeman whose duty was to report such
things saw pile reach forbidden height in time to have had it
removed; plff offered to show by superintendent of buildings,
having supervision of permits for piling brick that there was a
uniform regulation prescribing the height of such piles and that
erection of pile in question was forbidden, excluded.

(Nonsuit.—Aff. at Gen. T. —Rev. new tri, ord.)

Note. —A perusal of the case will show the difficulty of stating concisely
the exact point on which it turned.

McGuire v. Spence. 91N. Y., 303.

Children may play on sidewalks.
A person is not bound to be on guard against dangerous places in a side-
valk.

riff, a girl of 14, playing on sidewalk in front of deft’s
premises, fell into uncovered area in sidewalk, Injury, genital

organs cut, causing hemorrhage, permanent injury.
(Verd. $870.—Aff. at Gen. T.—Aff.)
1883. } Cases CoxDENsED, 267

 

SHEEHAN «. N.Y. C.& H.R. RR Co. 91 N. Y¥., 332.

?
A master must see that the rules he adopts for the conduct of his lusiness
are adequate for its safe conduct.

PIff’s intestate, fireman, injured in collision between deft’s
trains; his train was running “ wild” (i.e. not on time-table but
by special orders); deft’s rules prescribed method of ordering
its movements, rules were obeyed, obedience brought train
into collision with regular train, for whose guidance under such
circumstances deft had failed to provide proper rules, leaving
the regular train’s guidance under a general order, latter not
specific enough to provide carefully for its being followed.
Injury to head and spine.

(Verd. $8,500 —Rev. at Gen. T. new tri. ord.—Reyv. judg.
ord. on verd.)

Bostwick cv. VAN Voorals. 91 N. Y., 353.

The failure of directors of a bank to inform persons, about to become
sureties for the cashier, uf omissions of duty uf the latter which do not
affect his moral character or official integrity, is not such negligence as to
discharge the sureties.

WENDELL «. N. Y¥.C. & H.R, RR Co. 91 N. Y., 420.

It is negligent in a boy, intelligent enough to know the danger, to dart
across a track in front of an approaching train seen by him to be near.
Piff’s intestate, boy of 7, killed at deft’s city crossing; bright,

well acquainted with locality, warned of danger of passing in

front of trains, darted across track in front of train, of which
he had full knowledge, eluding a flagman who tried to stop him,
slipped, fell.

(Verd.—$1,200—Aff. at Gen. T.—Kev. new tri. ord.)

Mann v. Dev. & Hup. C. Co. 91 N. Y., 495.

Negligence of a co-servant in ordering another servant tu do work for which
he was employed, but which he is not fit to do, does not relieve the
master from responsibility for negligence in employing such incompetest
servant.
268 Cases CONDENSED. (1883.

 

PIff’s intestate, engineer of freight train, killed in collision due
to improper signalling by incompetent brakeman, proper signal
was torpedo, he ignorant about torpedoes, had scarcely any
experience as brakeman, had been employed few days before
as extra man, was selected by conductor to signal the other
train.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

HloMER v. EVERETT. 91 N. Y., 641.

An owner of premises, inviting another upon them, owes a duty to him to
guard an excavation or else to warn him of its existence,

Whether it is negligent for a person to fall into an excavation on private
premises, of which he had no knowledge, is a question of fact,

PIff machinist repairing engine in cellar of deft’s hotel, stepped
into uncovered hole filled with hot water; of which hadno knowl-
edge. Injury, leg and foot scalded.

(Verd. $9,500,—Aff. at Gen. T. —Aff.)

MANNING v. Port HENRY IRON ORE Co. 91 N. Y., 664.

Upon entering judgment on a verdict for a negligent killing, interest must
under the Death Act, be added to the verdict and inserted in the judgment,
even though the jury included interest as an item of damage in their

verdict.

Plff's intestate killed by deft’s negligence, jury included inter-
est in their verdict ; clerk on entering judg. added to the verdict
the amount of interest under the Death Act, motion made to
strike from the judgment the amount soadded. Denied.

(Verd. $3,000.)

 

Vogert v. THE Mayor &cC, of N.Y. 92 N, Y., 10.

A person, who employs a contractor to do work not in its naturea nuisance,
but which becomes so by reason of the manner in which the contractor
has performed it, becomes responsible for the nuisance, if he accepts the
work in that condition.

Where a city contractor, in the execution of a contract for grading a street,
makes excavations in it, whereby surface water is turned upon adjoining
lots and abandons the work, the municipality 1s liable to the lot owner for
the damages sustained by him, if the city neglects to availitself ofa clause

in the contract permitting it upon such abandonment to take charge of
the work.
1883. ] Casrs ConDENSED. 269

 

HARRINGTON v. KETELTAS. 92 N. Y., 40.

An executor must not allow the statute of limitations to run against a col-
lectable debt due to the estate, which becomes known to him in time to
prevent it.

CRABB v. YOUNG. 92N. Y., 56.

A provision in a will, that the executor shall not be liable for any loss to the
estate except such as occurs through his wiliful default, misconduct or
neglect, excuses the executor from any loss from negligence that is not
willful.

Martin v. Dry Dock & BE. B. & B.R.R. Co. 92 N. Y., 70.

A surrogate, on issuing letters of administration for the purpose of suit under
the Death Act, may without statutory authority limit in them the adminis-
trator’s power to bringing suit only.

Piff’s intestate killed through deft’s negligence, surrogate in
granting letters of administration issued them to plff, only to
sue, not to collect, this prior to the act authorizing surrogates to
issue limited letters, Laws of 1881, chap. 535.

(Verd. $4,100,—Aff. at Gen. T.—Aff. )

HovuGHgEIrK v. Det. & Hup. C. Co. 92 N. Y., 219.

A railroad company owes no duty to thé ‘public to station a flagman at a
crossing.

Piffs intestate, girl of 6, killed by train while being driven
across deft’s tracks at a point on deft’s premises where she had
a right to cross on payment of toll ; no flagman there, court left
it to the jury to say whether under the circumstances deft was
bound to have a flagman there.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Notr.—The General Term gave as a reason for refusing to set aside the
verdict as excessive that the opinions of the Court of Appeals made itimpos-
sible for the General Term to say that a verdict in death cases is excessive.

No such ground was stated in the order. The Court of Appeals at p. 224
repudiates the notion that its opinions involve a surrender of the right of the
Gen. Term to set aside such verdicts.
270 Cases CONDENSED. (1883.
Barry v. N. Y. 0. & H. BR. R. BR. Co. 92 N. Y., 289,

Where a railroad company permits the public to use a private crossing, it
owesa duty to the public to exercise reasonable care in moving its trains
at such crossing. 2

When a train is backing down upon a crossing, and no employee is
at the rear, ringing the beil on the engine at the other end is not sufficient
notice of the approach.

An omission to notice a train backing toward a crossing is not negligent
under these circumstances, where it and another train havecome up from
the opposite direction on another track, it has passed the crossing, and
while the following train is still approaching the crossing giving signals,
it switches on to the other track and backs without any other warning than
a ringing of the bell on the engine at its other end.

Or,

Itis not negligent fora boy to fail to notice that a train, which has passed
acrossing in front of him, has switched on to the other track, and
is backing down on the crossing without any warning other than by the
bell on the engine at the other end, when his attention is held by another
train which was following the first on the first track. t

 

PIff’s intestate, boy of 10, killed while crossing deft’s tracks at
a point where adjoining owners had right of way, and the public
had for 30 years been in the habit of crossing; train backing
without signals, in charge of brakeman on platform between two
cars, couldn’t see; train had crossed crossing, going other way,
switched on another track, and was backing, freight train had
been following it when moving forward and when it switched
on to the other track the freight train approached the crossing
giving the required signals ; court refused to charge that if the
bell was rung on backing train deft was not bound to give any
other warning.

(Verd. $3,000.—Aff. at Gen. T.—Aff.)

WOHLFAHRT ¥. BECKERT. 92 N. Y., 490.

When the seller of a medicine verbally warns its purchaser that it is poison-
ous and the latter takes the medicine in violation of verbal directions, 2
failure to write ‘‘ poison’’ on the bottle containing it does not make the
seller answerable for causing the purchaser's death.

The testimony of a druggist’s clerk, that his employer gave to a purchaser
verbal warning that a medicine was poisonous, is not disinterested.

PIff's intestate died from effects of dose of a mixture given

him by deft, a druggist, without a prescription; deceased
wanted ‘black draught,” by mistake ordered ‘‘ black drops,”
1883. ] CasEs ConpensED. 271

 

former harmless, latter poisonous if more than 12 drops taken;
word “poison” not written on bottle, deft’s clerk, by deft’s
direction, made up the medicine, gave it to deceased, he testi-
fied that deft had warned deceased of its nature and not to take
more than Io or 12 drops.

(Verd. directed for deft., exc. at Gen. T.—Exc. sustained at
Gen. T. new tri. ord.—Aff. judg. absol. agst. deft. on second
ground.)

DICKINSON v. THE Mayor &c. of N. Y. 92.N. Y., 584.

Mere negligence in failing to remove a temporary obstruction in its street
does not of itself constitute a nuisance so as to render the municipality
liable for maintaining a nuisance.

An action against the City of New York to recover damages,for a personal
injury resulting from negligence must be beguh within three years from
the time when the’right arises to make a demand on the comptroller for
payment.

Piff injured by negligent failure of deft to remove ice and
snow from cross-walk, Jan., 1877. In April, 1881, claim pre-
sented to comptroller; deft pleaded that more than three years
had elapsed since cause of action accrued, and plff’s right to
present the claim necessary to entitle her to maintain action was
complete more than three years before suit was begun ; plff de-
murred to answer.

(Dem, sustained.—Rev. at Gen. T. dem. overruled.—Aff.)

Dana v. N.Y. 0.&H.B.R.R.Co. 92. Y., 639.

Knowledge by a servant of the master’s rules does not cast upon the ser-
vant the risk of danger arising out of a situation which those rules failed
to provide for.

Piff’s intestate, killed in same accident as that in Sheehan case
(91 N. Y., 332); the only element in this case absent from that
was that the deceased being an engineer knew of the regula-
tions by which trains were run on telegraphic order.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

CROCKER v. KNICKERBOCKER IcE Co. 92 N. Y., €52.

It is not negligent to drive a team at a lively trot in a city street.
272 Cases CoNDENSED. [1883,

 

Plff run over by deft’s wagon, no evidence to show negli-
gence except that driver-was driving team on a ‘“‘lively trot”.
(Nonsuit.—Aff. at Gen. T.—Aff.)

BrEcuT v. CORBIN AS REc’R. 92 N. Y., 658.

If a person crossing a track could have seen an approaching train in time
to avoid it, the burden is on the plaintiff to show that such person did look
in that direction.

Piff's intestate, killed by deft’s engine, was crossing diagon-
ally Atlantic ave., B’klyn, along which track laid; if had looked,
must have seen engine in time to avoid it.

(Verd. $3,500.—Aff, at Gen. T.—Rev. new tri. ord.)

*

PALMER v. DEARING. 93N. Y., 7.

Whether itis negligent fora tenant to descend a stairway, relying on the
supposition that a landlord’s promise to have a dangerous place in it
repaired has been fulfilled, is a question of fact.

Plff, tenant of deft, occupied upper story in tenement, while
descending caught foot in hole in oilcloth on stairway, fell,
knew of hole, took no particular precaution, supposed place
had been repaired according to promise of deft’s agent day or
two before. Injury, to spine, miscarriage.

(Verd. $3,500.—Aff. at Gen. T.—Aff.)

 

Moore v. GADspDEN. 93N. Y., 12.
(Ist Appeal. 87 N. Y., 84.)

The failure of a householder to obey a city ordinance requiring him to
remove ice and snow from his sidewalk does not subject him to liability

to a passer-by for damages resulting from his slipping on ice and snow left
thereon.

New evidence on second trial, city ordinance against allowing
water to flow over sidewalk, and requiring householders to
remove ice and snow therefrom. Injury, wrist broken,

(Verd. $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)
1883. ] Cases CoNDENSED. 273
EARLE v. EARLE, 93 N. Y., 104.

Executors or trustees, who permit a third person to manage and control
the estate, are responsible for his negligent management thereof.

 

PARKER v. CONNER. 93 N, Y., 118.

A purchaser of property from an insolvent debtor owes to the latter’s cred-
itors no duty of active diligence requiring him to suspect or investigate the
motives of the debtor in making the sale.

SeconD Nar’, Bank v. Burt. 93 N. Y., 233.

The failure of a bank cashier to consult its discount committee as required
by the by-laws is not a negligent: omission of official duty, where the
members of the committee hold no meetings and sytematically absent
themselves from their duties.

CUNNINGHAM v. Bay STATE SHOE & LEATHER Co.
93 N. Y., 481,

One who uses premises of another without controlling them owes no duty
to persons not in his service to make them safe.

Plff, repairing penitentiary in employ of contractor, was
injured by falling into elevator shaft, elevator being at the
moment at one of the upper stories in charge of convict whose
services with those of other convicts were hired to deft under
contract with Kings Co. for the manufacture of shoes by deft
on the premises ; deft made no change in the premises, prison
authorities remained in possession and control of them, subject
to deft’s right to use them in such manufacture.

(Nonsuit.—Aff. at Gen. T. —Aff.)

WATSON tv. FORTY-SECOND Sv. &. BR. BR. Co. 93. N.Y., 522.

Only involved a question whether the one year limitation
under Laws of 1876, chap. 431, sec. 7, or the three years of sec.
383 of the code governed this particular case. Pltf injured Apr.
18, 1877, began suit Jan. 15, 1880; about the time the “new
code” went into effect there were questions of that sort, of no
permanent interest. Injury, head and side bruised.

(Verd, $2,500.—Aff. at Gen. T.—Aff.)
274 Cases CONDENSED. [1883.

 

CANFIELD v. BALT. & O. BR. R. Co, 93 N. Y., 532.
(Ist Appeal. 75 N. Y., 144.)

(The report erroneously states that the appeal was from an
order of the Gen. T., which affirmed a judgment in favor of
plffs entered on a verdict. The plffs were appellants).

On the second trial, the plff gave evidence to rebut any infer-
ence that the missing goods might have been abstracted from
the box during the three days it remained unopened in the cus-
tody of the consignees ; evidence also was given to show that
more time was taken in transit than was usual. Court say
“Had it not been for the rulings of the court below in this case
we should have considered the law to have been settled beyond
controversy that proof of the non-delivery of property by a
bailee upon demand unexplained makes out a prima /facte case of
negligence against such bailee in the care and custody of the
thing bailed and in the absence of any evidence on his
part, excusing such non-delivery presents a question of fact as
to the negligence of the bailee for the consideration of the jury.”
New trial granted.

Hancock v. Rann. 94 N. Y., 1.

An innkeeper, who has not posted in his room the notice as prescribed by
the innkeeper’s act, is liable for the loss of property ofan army officer who
while making an agreement to occupy the room for a definite time does so
on the proviso that everything is satisfactory, ‘and he is not sooner ordered
away on military duty.

Or,

An army officer, who makes an agreement with an innkeeper to occupy a
room for a definite time on the proviso that everything is satisfactory and
he is not in the meantime ordered away on military duty, isa guest within
the technical meaning of that word.

ByRneE v. N. Y.C. & H.R. R.R. Co. 94N. Y., 12.

An alley, unused by the public for travelling across a railroad-track, is nota
travelled public street within the meaning of the railroad act requiring
signals to be given at crossings thereof.

PIff injured at alley crossing; train omitted statutory signals,
no public travel on the alley across the track, alley ended at a
creek just beyond the track, no bridge over creek, dedicated as
1883. | CasEs CONDENSED. 275

 

an alley by owner of a tract cut up into lots, streets andalleys.
Injury, leg amputated. :
(Verd. $6,coo.—Aff. at Gen. T.—Rev. new tri. ord.)

SAULSBURY t. VILLAGE OF ITHaca. 94 .N. Y., 27.

Even though a municipality may not have constructed a sidewalk, yet if it
has notice that it is unsafe, and has power under its charter to make it
safe, it is bound to do so.

PIff passing along deft’s sidewalk over bridge over excavation,
no guard or railing to bridge, fell into excavation ; sidewalk not
built by deft; under its charter its trustees were made commis-
sioners of highways, with power to construct and repair side-
walks ; deft had notice of dangerous condition of place in ques-
tion, Injury to body, and stomach, incurable hernia.

(Report $1,000.—Rev. at Gen. T. new tri. ord.—Rev. judg.
on report aff.)

MArter oF AtTr’y GEN. v. Cont. Lire Ins. Co.
94 N. Y., 199.
Negligence by a receiver in regard to the sale of assets of the estate does

not give the purchaser the right to have the sale confirmed by the
court.

Isaacscn v. N. ¥. CO. & H.R. R.R. Co. 94.N. ¥., 278,

Plff's baggage lost in transit, had ticket from New York to
New Orleans over ‘‘ Mobile route,” applied at N. Y. to deft’s bag-
gage-master to check baggage under ticket to New Orleans by
that route, ticket examined by latter, baggage checked, plif
pocketed checks without reading them; they were in fact checks
over another route, and letters and abbreviations on them so
indicated; deft’s road formed part of both “ routes.” At
end of its road it delivered the baggage to the next carrier on
the route indicated on the checks, and not to the next carrier on
the Mobile route; baggage lost. eld, (1) plff not negligent in
failing to examine his checks, at least for jury to say, (2) deft
bound by its baggage-master’s undertaking to check by Mobile
route, (3) courts may take judicial notice of the system of check-
276 Cases CONDENSED. [1883-84.

 

ing baggage by railroad companies, and of the general practice
as to through passengers having tickets over various roads
operated as connecting lines.

BENNETT v. WHITNEY. 94N. Y., 302.

Where in the body of the complaint there are allegations showing an inten-
tion 'to charge a defendant as an individual, the addition of his official
title after his name does not have the effect to make the suit one against
him in his official capacity, if the word ‘‘as’’is omitted between name
and title.

A street commissioner who has been negligent in the performance of an
official duty is personally liable for the resulting damages.

Piff fell into unguarded, unlighted excavation in a city street,
deft was street commissioner, excavation under his charge ; in
the title of the action, there was added to his name his official
title, word ‘‘as” left out. The complaint contained allegations
showing intentions to sue him as an individual, question was in
which capacity he was sued. Held as an individual. Injury, |
nose cut, rib broken, hands, legs and body bruised, slight rup-:
ture, also horse and wagon seriously injured.

(Verd. $750.—Aff. at Gen. T.—Aff.)

Kine v. MACKELLAR. 94 N. Y., 317.

The negligent taking by a trustee of insutticient security upon an invest-
ment of trust funds, is no ground for recovery by the person who entrusted
them for investment, upon a complaint alleging a conversion of the funds
by the trustee.

‘VOSBURGH v. LAKE SHORE & M.S. R.R.Co. 94.N. Y., 374.

A railroad company, when it buys a bridge already in use, constructed on
an unsafe plan, must see that it is made safe for its servants to pass over.
Plff brakeman, injured by fall of bridge, while train passing

‘over it, bridge constructed on unsafe plan by anothercompany,

used by it several years, road bought by deft, defects of bridge

ascertainable by proper inspection, not made. Injury, shoulder

and several ribs broken, chin, legs and arm badly burned.
(Verd. $5,000.—Aff. at Gen, T.—Aff.)
1884-83. ] Cases CONDENSED. 277
VANN v. Rouse. 94N. Y., 401.

Action on guaranty for rent. Counterclaim for damages,
assigned by tenant to surety, damages due to flow of water
from part of building under control of lessor, due to defective
water pipes, which lessor after notice neglected to repair.
eld, that a clause in the lease, that if tenant should abandon
premises, rent due or to become due was to becollectible, was not
to be construed as a waiver by the tenant of the benefits of the
statute releasing lessees from liability for rent after injuryto the
building.

 

TIcE v. Munn. 94N. Y., 621.

When the injured party is an invalid, the negligent party must answer for
all the consequences, without regard to the fact that they have been
aggravated by an imperfect bodily condition.

‘Or,

The fact, that the damages resulting from defendant’s negligence are in-
creased by reason of the ill health of the injured person, affords no reason
why the defendant should not make good the whole damage.

PIff injured by deft’s negligence, in ill health at the time ; deft
asked court to charge, if plff in debilitated unhealthy condition,
and the injuries received were more lasting and serious by
reason thereof, deft only liable for such consequences as would
have resulted if plff in good health, refused; charged if by
reason of a delicate condition of health the consequences of a
negligent injury are more serious still, fur those consequences
the deft is liable although aggravated by an imperfect bodily
‘condition. Injury, shoulder dislocated, .

(Verd. $2,100—Aff, at Gen. T.—Aff.)

DisHER v. N, Y. C. & H.R. RB. R. Co. 94 N. Y., 622.
‘The mere breaking of an appliance when in use by a servant does not war-
rant the inference that it was defective and known by the master to be so.
Or, ‘

Mere proof that a servant was injured by the breaking of an appliance is
not sufficient to cast a liability for the resulting damages upon the master.
PIff brakeman, thrown from moving train by breaking of

brake-wheel, no evidence that the wheel was defective and

known by deft to be so. Injury to abdomen and spine.

(Verd, $3,000.—Aff. at Gen, T.—Rev, new tri, ord.)
278 Cases CONDENSED. [1884.

 

CAIN v. Crry OF SYRACUSE. 95 N. Y., 83.

A municipal corporation is not a guarantor to the individual citizen of the
absolute safety of the walls within its limits,

Plff’s intestate killed by falling wall on adjoining lot, fell
about a week after fire had destroyed building, leaving wall
standing ; under deft’s charter common council had power by
resolution to compel the owners of unsafe walls to make them
safe, or take them down, to require the removal of nuisances.
from lots, and to punish owners’ disobedience by fine and im-

prisonment,
(Nonsuit.—Aff. at Gen. T.—Aff.)

Cook v. Lowry. 95 N. Y., 1038.

Where a trustee is negligent commissions may be disallowed,

Vick v. N.Y. C. & H.R. RR. Co. 95 N. Y., 267.

Where the contract between master and servant includes the free transport-
ation by the master of the servant toand from his work, the master is.
not answerable to such servant for damages resulting from the negligence
of other servants in so transporting him.

Piff's intestate, employe, riding on deft’s train, negligent col-
lision, injured, died ; was foreman in deft’s shop at Buffalo, lived
at Rochester, riding from one place to other, contract of service
was, deft to pay him a fixed price per hour for the work, and
transport him from home to work and back without charge.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

WALDELE vt. N. Y. 0. & H.R. R. BR. Co. 95 N. Y., 274,

A declaration by the injured person as to the way in which the accident
occurred, made shortly afterwards, and not as a part of the occurrence:
itself. is not part of the res gestae.

Plif's intestate, crossing deft’s track, injured by train, died;
evidence of his declaration as to how accident happened made

half hour afterwards, admitted.
(Verd $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)
1884. ] Cases CoNDENSED. 279

 

Evuis v. N. Y., LAKE Erie & W. R. R. Co. 95 N. Y., 546.

A railroad company owes a duty to its servants to see that the buffers on
the cars composing the trains are so placed that they will serve their
purpose,

A master’s own negligence is not excused by the concurring negligence of
a co-servant.

Plf’s intestate, brakeman, while riding on caboose killed in
collision with an overtaking train; as train came up tried to
escape from caboose to next car, the two cars jammed together,
he caught between, jamming due to buffers not being opposite
each other.

(Nonsuit.—Aff. at Gen. T.— Rev. new tri. ord.)

SEYBOLT v. N. Y., LAKE Erin & W.R. R. Co.
95 N. Y., 562.

A plaintiff in a negligence suit is not bound to make out his case beyond all
reasonable doubt.

When a common carrier is required by law to transport any one without
charge, the latter’s involuntary acceptance of a pass, containing a stipula-
tion against liability for damages, does not operate as a forfeiture of the
right to recover them.

Piff’s intestate, U. S. mail agent, engaged in his duties on
deft’s train, killed by train being thrown from the track through
negligence in setting switches ; had a pass issued by deft on
requisition of U. S. Superintendent of mail service ; U. S. statute
provided that every railroad company carrying mail should
carry without extra charge the person in charge thereof; on
back of pass was clause of exemption from liability for dam-
ages ; court refused to charge that. if on the whole evidence
there was reasonable doubt as to deft’s negligence, verdict
should be for deft.

(Verd. $1,500,—Aff. at Gen. T.—Aff.)

Nev v. McKecuyin. 95 N. Y., 632.

Under the civil damage act it is immaterial that the act of the intoxicated
person which causes the injury to the plaintiff was not an expectable

consequence of the intoxication.
If the seller of liquor, which causes intoxication, has no license, the injured

party may recover exemplary damages.
280 CasEs CoNDENSED. [1884.

 

Piff’s father murdered his wife and committed suicide while
intoxicated from liquor sold by defts ; plff, youth of 15, depend-
ent on his father ; defts had no license ; court submitted to jury
the question of exemplary damages.

(Verd. $600,—Aff. at Gen. T.—Aff.) >

Morpny v. Orr. 96N. Y., 14.

Drivers of vehicles are bound to look out for foot passengers at cross-walks.

PIff boy of 4, run over on cross-walk by deft’s.wagon, driver
could have seen him if sufficiently observant. Injury, leg am-

putated.
(Verd. $2,500.—Aff. at Gen. T.—Aff.)

Lewis v. State OF N, Y. 96 N.Y., 71.

The state of New York has not made itself liable by any statute for the
negligence or misfeasance of its agents in supplying with defective
appliances its prisoners serving sentences of hard labor.

Plff prisoner in State Reformatory, injured while carrying
molten lead in ladle, ladle defective, had called attention of

overseer to defect.
(Claim dismissed.—Aff. )

HaIcut v. BRISBIN. 96 N. Y., 132.

Where a will directs an executor to sell real estate for the best price in his
best judgment, it is not negligent for the executor to omit to sell it,
where there is no demand for it, and real estate in the neighborhood has
depreciated in value,

farcorr v. Tae Mayor &c. or N.Y. 96 N. Y., 264.

The City of New York is responsible for the condition of the streets in the
“ Annexed District.’’

Evidence of the amount of an injured person’s earnings for several years
prior to the injury is admissible,

Under a complaint alleging bodily injury as the result of negligence,
evidence of the permanency of the injury is admissible.

The enhancement of the damages through exposure to bad weather is,
where such exposure is one of the direct consequences, a proper item for
compensation.
1884. ] Cases ConpENSED. 281

Plff drove into ditch in deft’s street, in part of city called
“Annexed District”, axle broke, fell over dash-board 3; another
carriage procured, his horses harnessed to it; spine injured,
exposed to rain during delay, drove home in wet clothes ;
special verdict that spinal difficulties result both of falling over
dash-board, and exposure, that it was reasonably prudent for
him to remain in rain in street and drive home in wet clothing,
that the exposure increased injury ; under Act of Annexation
control and maintenance of streets in annexed district was
placed in department of Public Parks ; plff a book canvasser,
evidence of earnings for several years past admitted.

(Verd. $25,000.—Rev. at Gen. T. new tri. ord.—Rev. judg.
on verd. aff.)

 

Srroum v. N. Y. LAKE Eris & W. R. RB. Co. 96 N. Y., 305.

Itis not as to what may, but what with reasonable certainty will, result
from an injury, that evidence by an expert is admissible.

PIff injured through deft’s negligence ; expert allowed to state
what permanent results might follow. Injury to body and head,
head crushed and scalp lacerated, epilepsy resulting,

(Verd. $9,500.—Aff. at Gen, T.—Rev. new tri. ord.)

WALSH v. TRUSTEES OF N. Y. & B’KLYN BRIDGE.
96 N. Y., 427.

Trustees appointed by the Legislature to build a structure for a municipality
to be owned by it, are not responsible for the negligence of their em-
ployees engaged in the work.

PIff passing along street under the bridge while it was being
built under deft’s charge, hit by a plank dropped through care-
lessness of workman on bridge; defts appointed trustees by
Legislature to build the bridge as agents for Cities of N. Y. and
B’klyn ; demurrer, no cause of action.

(Dem. sustain.—Aff. at Gen. T.—Aff.)

NotEe.—See Walsh v. The Mayor, 107 N. Y., 220,
282 CasEs CONDENSED. (1884.

 

HANNON v. AGNEW. 96 N. Y., 459.

Where there are no data from experience on which to found a judgment as
to the number of men necessary to guard a public way, a public officialis
not bound to foresee how many will be needed.

Failure by a public official to exercise a power ofappointment of policemen
to guard a public way is nota negligent omission of duty, if he has allowed
a subordinate to appoint them.

PIf crossing over bridge between N. Y. and Brooklyn caught
in a crowd, thrown down, injured; defts trustees of bridge,
appointed by Legislature to build it, had power to appoint ade-
quate police force and to regulate same for the protection of
persons crossing (complaint alleged that they were guilty of
personal neglect of official duty, in failing to appoint an adequate
police force, and in failing to regulate the same) , 44 policemen
had been appointed irregularly, by bridge superintendent, not
by trustees, bridge had been opened a few days, 22 policemen
in attendance at one time, no evidence to show that it could
have been foreseen that that was insufficient number; calamity
appeared to be due to panic.

(Nonsuit.—Aff. at Gen. T. of city court.—Aff. at Gen. T. of
Com, Pleas.—Aff.)

THE PEOPLE EX REL CHAMBERLAIN v, FORREST.
96 N. Y., 544.
‘Where assessors of personal property for purposes of taxation have neglected

to correct an error in the roll before the expiration of the time allowed by
law for its completion, they cannot correct it at all.

VILLAGE OF Port JERVIS v. First N. B. oF PorT JERVIS.
96 N, Y., 550.

Plff having paid a judgment recovered against it for damages
sustained by a person having fallen into an improperly guarded
excavation in its street made by defendant under license from
plff, sought recovery over; deft’s president had verbal notice of
the prior suit and the probable liability of deft to plffin case of
a recovery therein and took part in the defense of that suit ;
judgment roll in former suit admitted in evidence.

(Verd. for plff.—Aff. at Gen. T.—Aff.)

Nothing new.
1884. ] Cases CONDENSED. 283.

 

GLUSHING v. SHARP AS REC’R. 96 N. Y., 676.

It-is not negligent for a person to drive on to a railroad crossing without:
at the moment looking for a train, when thirty feet back he had looked and
the gateman by raising*the gate after a train had passed, gives him anassur-
ance of safety.

Plff's horse killed at deft’s crossing in a city, when 30 feet
off at a spot where plff's view of the track was somewhat
obstructed, a train having just passed, he had looked both
ways, seeing no train, the gateman raising the gate, he drove.
on; struck by train going other way, statutory signals omitted.

(Verd. for plff—Aff. at Gen, T.—Aff.)

Wiuson v. N, Y.C. & A. BR. R.R. Co. 97 N. Y., 87.

_ Plff’s horses injured in transit, shipped under contract releasing:
deft from liability from damages resulting from negligence of its
servants, or which should be occasioned by insecurity of its.
cars ; the horses were transported in a grain car, out of repair,

sufficient for use for which intended, unsafe for live stock ; it
did not appear but that deft had on hand proper cars, so that
the injury might have been caused by negligence of deft’s ser-.-
vants in selecting insecure car. Held, p\ff could not recover.

STROHER v. ELTiInG. 97 N. Y., 102.

Where two persons engage ina joint undertaking, each is responsible for
the other’s negligence in carrying it on.

PIff run over by team of horses negligently driven by one:
who had contract with deft under which deft furnished the
team and equipments for carriage of persons, the other to drive
and collect fares, proceeds to be divided between them. Injury,.
contusions of both legs and body.

(Verd. $629.—Aff. at Gen. T.—Aff.)
"284 Cases CONDENSED. (1884,

 

URQUHART v. CITY OF OGDENSBURGH. 97 N, Y., 238.
(Ist Appeal. 91N. Y., 67.)

-Acquiesence by municipal authorities in an unauthorized change by a lot
owner in the plan of a sidewalk, theretofore adopted by then, is not to be
deemed an adoption by them of a new plan, so as to bring an action for
damages resulting from its defect within the rule that the adoption of a
plan is so far a matter of discretion that an action will not lie fordamages
resulting from a faulty plan.

Shown on new trial that a change in the grade, and recon-
struction of walk, made by lot owners, was not a substantial
building of new walk on old plan, and that it was this material
change that made walk unsafe ; court refused to charge that an
unauthorized change whereby the walk was made unsafe might,
after reasonable time for notice,make deft liable as for negligence;
also refused to charge mere sufferance of a negligent repairing
could not be presumed to have become a deliberate adoption of a
new plan without some authoritative act of the city officials.
(The foregoing is as exact an abstract of the requests to charge,
as regard for the rules of grammar, which they violated, will
allow).

(Verd. for deft.—Aff. at Gen. T.—Rev. new tri. ord.)

HAYES v. FortTy-SECOND St. &c. R. R. Co. 97 N. Y., 259.

The mere fact that a passenger is thrown off the platform of a car on its
starting up after a stop, is not sufficient evidence that it was negligently
started.

A plaintiff must prove something which warrants the inference of negli-
gence on the defendant’s part, and not leave his case upon facts just as
consistent with care and prudence as with the opposite.

Plff passenger, on front platform of deft’s street-car, it stopped
‘to take on passengers, they got onin front, he stepped down on
the step to make way for them, while stepping back was thrown
off by sudden movement of car on starting up, no evidence
that horses were not started in careful manner. Injury, head
injured, two fingers amputated.

(Verd. $800.—Aff. at Gen. T.—Rev. new tri. ord.)

NotE.—Would the same result have been reached, if plaintiff had based
‘his claim, not on an inference that the start must have been negligently
made because it threw him off, but on the ground that it was negligent to
start at all until he had regained a place of safety, which he had temporarily
relinquished to accommodate the carrier in gaining passengers?
1884-85, ] Cases ConDENSED. 285.

 

CLARK v. Ditton. 97 N. Y., 370.

Plff’'s wife fell into excavation in street made by deft, left un-
guarded ; question on appeal was whether allegation in com-
plaint that it was made by deft was sufficiently denied in the
answer. Injury to knee-pan.

(Verd. $5,125—Aff. at Gen. T.—Aff.)

CARPENTER v. Boston & ALBANY R. R. Co. 97 N. Y., 494.

A railroad company must not allow mail bags to be thrown from its cars on
to station platforms where passengers are standing.

Plff, passenger, on station platform waiting for train, it came
in, mail car passed him, mail clerk threw out mail bag, struck
plff, injury serious ; usual thing for mail clerk to throw out the
mail bag in this way, deft knew it.

(Nonsuit.—Aff. at Gen. T.—Rev new tri. ord.)

FERGUSON v. HUBBELL. 97 N, Y., 507.

A person who lets his lands on shares agreeig to pay the tenant a specified
sum per acre for clearing so much of the land as the tenant should choose
to clear, is not answerable for the damages sustained by a neighbor from
a fire negligently kindled by the tenant in clearing the land.

Evidence by farmers as experts as to the proper time to burn fallow land is
inadmissible.

NOLAN v. Kine. 97 N. Y., 565.

In building a temporary bridge over an excavation in a sidewalk, the builder
is under no obligation to make it as safe as the sidewalk, but he fulfils his
duty if he makes it reasonably safe and free from peril to persons crossing
it with such ordinary prudence as such a structure requires.

Piff slipped and fell while stepping down steps of temporary
bridge over excavation in sidewalk, made by deft under permit
of city authorities, bridge two or three steps above sidéwalk ,
court charged, deft under liability to have bridge constructed in
such manner that plff would not be subjected to any more per-
sonal risk than if sidewalk there instead of bridge, also, if bridge
less safe than sidewalk would have been and if plff exercised
care which reasonably prudent persons would exercise in pass-

ing over a sidewalk should find for plff; refused to charge if
&
286 Cases CONDENSED. (1884-85.

 

bridge and steps constructed in reasonably safe, proper, manner,
plff could not recover. Injury, knee-pan fractured.
(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord.)

a

REED v. THE Mayor &c. oF N. Y, 97 N. Y., 620.

‘The amount of damages claimed in the statement of claim presented to the
comptroller under Laws of 1873, chap. 335, § 105, is not an essential part
of the claim required to be so presented.

Motion by plff to amend complaint in action to recover dam-
ages for personal injury, by increasing amount toa sum beyond
that stated in his claim presented to deft’s comptroller under
Laws of 1873, chap. 335, § 105.

(Granted at Spec. T.—Rev. at Gen. T. for want of power.—
Rev. remitted to Gen. T. to exercise discretion in reviewing
Spec. T. order.)

LrE v. Troy Citizen’s Gas Licur Co. 98N. Y., 115.

It is not necessarily negligent to close for the night a building containing
living beings when a smell of gas is noticed, if a leak, from which gas has
escaped, has just been repaired.

-An averment in a complaint that an injury was caused by defendant's negli.
gence, necessarily implies that there was no contributory negligence by
plaintiff, and a special averment that there was none is not necessary,

Plff's horse suffocated in his barn by gas, leak in pipe under
‘barn due to deft’s negligence ; leak had been repaired by deft
before plff closed his barn for the night, he however noticed
a smell of gas; no allegation in complaint of absence of contri-
-butory negligence on plff’s part ; court refused to charge, if plff
had reason to believe gas escaping and knew danger of escaping
gas, and left horse there without providing for the danger,
thinking the escape of gas not sufficient to do damage, he could
not recover.

(Verd. for plff—aAff. at Gen. T.—Aff.)

Bucuer v. N. Y.C. & H.R. R.R. Co. 98 N. Y., 128.

Rule in Filer case followed,

tis a question of fact whether it is negligent for a passenger under the
conductor’s inducement to get offa slowly moving train, which on arriving
at his station does not stop.
1885. ] Cases CONDENSED. 287

 

Plff, passenger, when train arrived at station to which he had
bought ticket, did not stop, usually stopped, only slowed up,
conductor notified him to get off, while attempting to do so,
injured.

(Nonsuit—Aff. at Gen. T.—Rev. new tri. ord.)

ToLMAN v, SYRACUSE BinG. & N. Y. R. RB. Co.
98 N. Y., 198.

He who travels when under the influence of liquor takes the risk arising
from the fact that he is under its influence.

Or,

If the only thing on which a plaintiff relies to meet the burden of proof as
to contributory negligence is intoxication, he should be nonsuited.

Or,

It is negligent for a man to travel when so far-under the influence of liquor
that his power to perceive danger is dulled.

Plff's intestate killed by deft’s train at crossing, no signals
given, road approached track at acute angle, view of track unob-
structed for one thousand feet, at crossing unobstructed for half
a mile, night dark, head light on engine visible long distance,
deceased had been drinking, seemed dull, horse gentle, sleigh,
road near crossing bare of snow.

(Verd. $5,100,—Aff, at Gen. T,—-Rev. new tri. ord.)

Brick v. Rocu., N. Y. & Poxn R.R. Co. 98 N. Y., 211.

Track repairers on railroads do not come within the protection of the rule
that the master owes a duty to his servants to keep the place where they
work safe. ;

Plff's intestate, laborer, killed while riding on construction
train, track dilapidated, deceased with others engaged in re-
pairing it under directions of general foreman whose duty it
was to see tracks kept clear of frozen mud at crossings,
neglected to do so, train ran off track.

(Verd. $5,000, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
on verd.—Rev. new tri ord.)
288 Cases CONDENSED. [1885.

 

Epwarps v. N. Y. & HarguEmM R. KR. Co. 98 N, Y., 245.

A lessor, who is ignorant of the fact that his building is unsafe for the pur-
pose of accomodating a crowd at an exhibition to be given by his tenant,
is not responsible to a spectator for damages resulting from the insecurity
of the building.

PIff injured by fall of gallery at ‘‘Gilmore’s Garden” a build-
ing in N. Y. owned by deft, let to atenant for walking match;
plff spectator, gallery fell because crowded and persons kept
time with feet to music, no evidence that deft knew gallery un-
safe for an expectable crowd.

(Nonsuit._Aff. at Gen. T.—Aff.)

Nore.--But as the gallery fell because of the rythmic tramp of many feet,
and as the Court of Appeals stood four to three as to the above rule, it may
be safer to say that all this case really stands for, is this ;

A lessor of a building used for public gatherings is under no obligation to
the public, resorting to it on invitation of his tenant, to see that it is secure
enough to stand the shock occasioned by a non-expectable freak of a large
crowd.

Powers v. N. Y., LAKE Erte & W. R. R. Co. 98 N. Y., 274.

It is negligent to endeavor to escape from an on-coming train by fleeing
before it on a hand-car, instead of lifting the hand-car off the track.

If a machine furnished by the master for the servant’s use breaks, and the
servant instead of notifying the master thereof, continues to use the
machine by the aid of some device of his own, he takes the risk of its
sufficiency.

Or,

When a machine furnished by the master for the servant’s use breaks, itis-
negligence in the servant to omit to inform the master thereof.

Plffs intestate, employe, killed, thrown from hand-car on
which he and other laborers were endeavoring to make a
distant switch to escape an on-coming train, instead of remov-
ing the car to the other track as was usually done; one of the
handles to walking beam broken, crowbar used instead; one
end projected four feet from socket, other end foot and half;
usual number of men to work handle 3; to escape train, 5
worked, with all force they could; crowbar worked in that way
wrenched lever on beam, broke it, deceased thrown under car.

(Nonsuit, exc. at Gen. T.—-Exc. sustained at Gen. T. new tri.
ord.—Reyv. nonsuit sustained. )
1885. }, Caszs CONDENS D. 289

 

DEBEVOISE v, N. Y., LAKE Erie & W. R. R. Co.
98 N. Y., 377,

The Death Act of this state does not create any right of action for a negli-
gent killing out of the state.

PIff’s intestate killed through deft’s negligence, in New Jersey,
no proof of any statute in that state giving right of action.
(Nonsuit.— Aff. at Gen. T.—Aff.)

PARKER v. STROUD. 98 N. Y., 379.

The neglect of the holder of an endorsed promissory note, payable on
demand at a specified place, to make such demand within six years from
its date, does not operate to give the endorser a defence under the statute
of limitations.

RUSSELL v. VILLAGE OF CANASTOTA. 98 N. Y., 496,

It is no defense to a municipal corporation that it has taken some of the
steps necessary to have lot owners repair its sidewalk pursuant to its
ordinance, if it does not follow the matter up and see that the walk is
repaired.

‘Plff tripped on board walk on deft’s sidewalk, out of repair ;
under its charter deft’s duty to keep sidewalks in good order;
had notice of t!.:s walk’s condition, had served, pursuant to
ordinance, notice on lot owners to repair it, served on different
owners not same time, intervals between, no apparent reason
for service in that way, walk remained untouched by owners
or by deft. Injury to spine and side, abscess following.

. (Verd. $1,500.—Aff. at Gen. T.—Aff.)

Looxwoop v. N. Y., LAKE ERtr & W. R. BR. Co.
98 N. Y., 523.

It cannot be said that because the children of a person, killed through an-
other’s negligence, are living aw:.y from the home of the deceased: and
supporting themselves, they have not sustained pecuniary damage
through his death.

Evidence that the child of a person killed through another’s negligence has
no property is admissible.
290 Cases CoNDENSED. _ (1885,

 

Plff’s intestate killed through deft’s negligence, 67 years old,
children all adults, all but one supported themselves, lived
away, had no property ; court refused to charge that where
children are of full age, living away from the home of the de-
ceased, and are supporting themselves, no such pecuniary loss
has been sustained by them as can be recovered in this action ;
also refused, if jury find from the evidence such a state of facts
existed here, they cannot include in their amount any pecuniary
damage resulting to them.

(Verd. $3,000.—Aff. at Gen. T. —Aff.)

BURKE v. WITHERBEE. 98 .N. Y., 562.

The mere detachment of one appliance from another, whereby a servant is
injured, is not sufficient to warrant an inference of negligence against the
masterin not having them properly attached, where it appears that the
attachment was in the usual manner, and had been used in safety for
years,

Plff's intestate, employe, killed while working in deft’s mine;
ore carran down steep grade against him; car raised and
lowered by means of wire cable, with heavy iron hook at end,
which was attached to car by being placed on an iron bail
at end of car; in some way unexplained, hook became detached
from bail while car descending ; plff claimed that hook should
have been fastened to bail by bolt and key, or by a socket, or
a clevis with bolt and key, so hook could not have slipped off;
hook had been used in same way several years, same method
in other mines; car so attached had made 50,000 trips; hook
never slipped off before.

(Verd. $800.—Aff. at Gen. T.—Rev. new tri. ord.)

Mourpay v. Crry OF BROOKLYN. 98 N. Y., 642.

An excavation fifty feet from a highway is not near enough to be within the
rule as to excavations on private premises near highways.

The rule as to excavations on private premises near highways does not
apply to excavations on private premises near high water mark on the
sea shore,

A municipal corporation is not liable for damages to a passer-by due’ to a

sewer on private property being out of repair, where it has no notice of
the defect.
1885. ] Caszs CONDENSED. 291

 

Piff's intestate, boy of 6, drowned in deft’s sewer, fell through
hole in it, at a point on private property 50 feet from the high-
way near high water mark of Gowanus bay; deft had no notice
of hole.

(Verd. $1,000,—Aff. at Gen. T.—Rev. new tri. ord.)

WERLE v. LonG Istanp R. R. Co. 98 N. Y,, 650.

It is not necessarily negligent for a passenger to stand on the car platform,
when he has been invited by a railroad company to board its train, and
on doing so finds no seat.

The failure of a railroad company to provide a safe place for a passenger to
ride on a train, for which it has sold him a ticket and which has stopped
to take him up, is evidence of negligence.

Plff’s intestate, passenger, train crowded, not finding seat on
boarding train at regular station, where ticket sold for passage
on this train, stood on platform, thrown from it by sudden
lurch at a curve, train’s speed being increased ; died.

(Verd. $1,250.—Aff. at Gen. T.—Aff.)

Kyicut v. N.Y., LAKE Erie & W.R.R. Co. 99 N. Y., 25.

The failure of a railroad company to maintain its fences along its tracks as
required by the statutes (of 1850, chap. 140, and 1854, chap. 282) does not
render it liable for injuries which animals may do to themselves by stray-
ing on its tracks.

Plff's colt strayed on highway, thence to land along canal,
thence through gap in deft’s fence on its track, pursued by
plff, ran on deft’s bridge, fell between ties, broke its legs; act
requiring railroad co.’s to maintain fences provides that for
their failure they shall be liable for damages which shall be
done by engines or agents to cattle and horses.

(Verd. for plff., set aside at Spec. T. new tri. ord.—Rev. at
Gen. T. judg. ord. on verd.—Rev., ord. of Spec. T. aff.)

McCormack v. PENN. Cent. R. R. Co. 99 N. Y., 65.

(ist Appeal. 49 N. Y., 303.)
(Qd « 80“ 353.)
292 Cases CONDENSED. [1885.

 

The facts on the former trial ‘‘ were in some material respects
different from those now appearing,” but not as to matters
making further mention of the case necessary in this book.

¥

HAGENLOCHER v. Coney Is. & B. R. R. Co. 99 N. Y., 136.

Although an injured person is a witness, the exclamations of pain made by

her at the time of the injury may be proved and used to corroborate

. other evidence and to give a more particular or vivid description of her
condition.

PIff, passenger, injured through deft’s negligence, was witness
in her own behalf, evidence by another witness that just after
the injury plff made exclamation of pain, admitted. Injury,
ankle sprained.

(Verd. $2,500.—Aff. at Gen. T.—Aff.)

Lowery v. MANHATTAN Ratbway Co, 99 N.Y., 158.

The fact that a driver of a runaway horse, in trying to stop him causes.
him to deflect from his course, whereby he runs over*a passer-by, whom
he would not have run over unless so deflected, does not operate to make.
the cause of the runaway a remote cause in producing that particular injury,

Plff, passer-by on sidewalk in street traversed by deft’s
elevated road, fire fell from its locomotive on to horse attached
to wagon, drawn underneath track, horse ran away, driver in
trying to stop him turned him against curb, up which, however,
wagon went and struck plff. Injury, concussion of brain,
collar-bone broken, scalp wounds and contusions,

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

HICKEY v. TAAFFE. 99 N. Y., 204.

The Children’s Protective Act (Laws of 1876, chap. 122) only applies to em-
ployments either vicious in themselves or those which partake of the
character of amusement, and has no application to productive industries,
or useful or necessary business or occupation.

Piff, girl under 16, employed in deft’s steam laundry, hand

crushed between rollers used for ironing collars; chap. 122 of
Laws of 1876, “act to prevent wrongs to children,” provides,
1885. ] Cases CoNnDENSED. 293

 

any person who employs child under 16 years in any business,
exhibition or vocation, injurious to the health, or dangerous to
the life or limb, of such child; court charged that if in the
opinion of the jury the employment of plff involved such risk
to her as to bring her avocation within the meaning of the
term “dangerous to life or limb”, she might recover.

(Verd. $950.—Aff. at Gen. T. —Rev. new tri. ord.)

HEGERICH v. KEDDIE. 99 N. Y., 258.

‘The cause of action given by the Death Act (Laws of 1847, chap. 450, Code
§ 1902) in favor of next of kin abates upon the death of the wrong doer.
Plff’s intestate, killed by negligence of deft’s testator, suit
brought on theory that a suit for damages sustained by next
of kin does not abate under the Death Act; deft demurred, no
cause of action, against deft, abatement.
(Dem. sustain.—Rev. at Gen. T. dem, overrul.—Rev., judg. of
Spec. T. aff.)

SIPPLE v. THE StaTE, 99 N. Y,, 284.

The state is answerable for the damages to an adjoining proprietor resulting
from an overflow upon his lands through a break in its canal, due to the
negligence of a lock-tender in omitting to take proper care of a lock.

PANTZAR v. TILLY Foster I. M. Co. 99 N. Y., 368.

Mine owners must protect their workmen from the consequences of rifts
opening in the rocks of their mine.
A miner has the right to rely upon his employer protecting him from falling
rocks, while prosecuting his work in ignorance of any special danger.
Plff, working under cliff in deft’s mine, injured by fall of rock
from cliff separated from body of cliff by a crack which had
slowly increased in width, superintendent had notice of the
danger, had instituted experiments to see if crack was widening,
found it was, no precautions were taken to support the rock
while deft’s workmen worked below it, superintendent had full
control over mine with ample power to take precautions
which would have prevented the accident. Injury, one leg and
half of foot amputated, other leg broken.
(Verd. $12,000.—Aff. at Gen. T.—Aff.)
294 Cases Conpenszn. [1885.

 

REMINGTON v. WALKER. 99 N. Y., 626.

The neglect by one executor to perform a duty imposed by a will upon
several executors, to set apart and properly invest a legacy, is not excused
by his having left it to his co-executors to perform.

More. v. Sixta Ave. R. R. Co. 99 N. Y., 632.
S. C., 2 How. Pr. N. S., 30.

A boy of eight, who tries to get across a track in front of a street-car which
he sees near by and approaching rapidly, is guilty of negligence.

PIff, boy of eight, run over by deft’s car while crossing the
street, had one foot on rail, saw horses, heard bell ring, car
coming fast 9 ft. off, thought he could get across, tried to,
failed. Injury, leg amputated.

(Verd. $10,000.—Aff. at Gen. T.—Rev. new tri. ord.)

ODELL v. SOLOMON. 99 N. Y., 635.

Where a person is injured upon leased premises, which are not in a safe
condition, it is immaterial that the lessee agreed to keep them in good
repair, if it does not appear that he was negligent in failing to discover
and remedy the defect.

Piff passing through store owned by some of the defts,
leased to the others, injured by falling of window sash; in the
lease the lessees covenanted to keep the premises in good
repair; sash was defective, but there was no evidence that the
lessees were negligent in failing to discover and remedy the
defect.

(Nonsuit as to lessors, report agst. lessees, no appeal by plff.
from nonsuit.—Judg. agst. lessees aff. at Gen. T.—Rev. new
tri. ord.) ;

Moriorty v. BARTLETT. 99 N. Y., 651.

The causes of action created by the civil damage act abate upon the death
of the defendant.
1885. ] ‘ Cases CONDENSTD. 295

 

REHBERG v. THE Mayor &c. or N. Y. 99 N, Y., 682,
(Ist Appeal. 91N.Y., 187.)

When the issue is whether a permitted obstruction in a street exceeds the
lawful limits of the permit, and is therefore a nuisance, the question must
be decided by an appeal to the ordinance, rather than toa regulation of
a department of the municipality.

On second trial plff called deft’s Superintendent of Incum-
brances, offered to show that there was a uniform regulation in
the department prescribing height of brick piles in streets; ob-
jected to on ground that the ordinance of the Common Council
was the proper way to prove it, sustained,

(Verd. for deft, or nonsuit—Aff. at Gen. T.—Aff.)

BULLOCK v. THE Mayor &c. or N. Y. 99 N. Y., 654.

Nhether a person in passing over an unsafe sidewalk, knowing its condition
and using some care, was guilty of negligence is a question of fact.

Whether a sidewalk is maintained in a reasonably safe condition for public
use is a question of fact.

Piff, passer-by. on deft’s sidewalk, sidewalk for some time
torn up, changing grade, for convenience of passers-by contrac-
tor had put small piece of flagging several inches apart, while
plff, stepping from one to other, made mistep, fell.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord. )

GOODFELLOW v. THE Mayor &c. or N. Y. 100 N. Y., 15.

Whether a depression of eight inches in a cross-walk is unsafe is a question
of fact.

It is no defense to a suit against a municipality to recover damages result-
ing from an unsafe street, that its inspecting officer did not think it was
unsafe, and therefore did not report it for repair.

Piff fell on deft’s crosswalk, stone misplaced, more than a
year, depression of eight inches, ordinance required policeman
on duty to inspect crosswalk, inspection embracing this walk
made, policeman did not observe this defect.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri ord.)
296 Cases CoNnENSED. ° (1885.

 

CRAWFORD v. WEST Sipe Bang. 100 N. Y., 50.

It is not negligent for a depositor to draw and leave with a clerk his
check dated ahead to the order of his clerk, for the purpose of having him
draw the money therein on the day of its date in case of the employer’s
absence on that date. :

NELSON v. THE VILLAGE OF CANISTEO. 100 N. Y., 89.

A village, on becoming incorporated under the Village Act, must remedy
defects theretofore existing in its highways.

Plff stumbled over hatchway, projecting into deft’s sidewalk,
had been so for several years and prior to deft’s incorporation
as a village under Village Act of 1870, chap. 291. Injury, leg
and shoulder injured.

(Report $550.—Aff. at Gen. T.—Aff.)

WEYERHAUSER v. Don. 100N. Y., 150.

A mercantile agency, undertaking to make collections throughout the
country by means of local attorneys, is answerable for the negligence of
an attorney employed upon terms known only to itself.

Whether an attorney at law was negligent in taking.a renewal note with
endorsements, which were evidently written before the insertion by the
maker of a special agreement in its body, is a question of fact, where
there is any evidence of acts on the part of the owner of the former
note, which might give rise to the inference that such owner had held the
maker out to the attorney as having authority from the endorsers to insert
such agreement.

Drxon v. B’KLYN City & Newtown R. R. Co.
100 N. Y.. 170.

When a street car company removes snow from its tracks, it must not leave

it in dangerous piles along the tracks.
It is not necessarily negligent for a passenger to walk between a snow pile

and aslowly moving car for the purpose of getting on its front platform,

Plff sought to board deft’s street-car at rear platform, crowded,
went to front platform, car moving slowly, while passing along
side of car slipped on bank of snow, thrown up by deft’s snow
plow and sweeper three feet high, sloping toward track; carran
over him. Injury, leg amputated.

(Verd. $9,000.—Aff. at Gen. T.—Aff.)
1885. ] CasEs CoNDENSED. 297

 

Haicut v. BrisBrn. 100 N. Y., 219.

An executor who has been negligent in selling real estate, which under the
will he was directed to sell, must answer for the loss sustained.

PROBST v. DELAMATER. 100 N. Y., 266.

In an action by a servant against a master for damages. resulting from the
use of an unsafe appliance, evidence that the servant having the charge of
the operation was intoxicated is admissible.

PIff employee, injured by fall of box, through breaking of rope
used in its hoisting, rope old, defective, evidence that engineer
in charge of hoisting was intoxicated, admitted. Injury, leg
broken, head and back injured.

(Verd. $2,000.—Aff. at Gen. T.—Aff.)

VEEDER v. VILLAGE OF LITTLE FAuyus, 100 N. Y. 3438.

Where passage along a street is dangerous by reason of something over
which the municipality has no control, it is not negligent for it to omit to
erect a barrier against the danger, if the barrier itself might be a source
of danger to the traveller.

Piff's intestate, driving along deft’s street, at night, drove on
to a retaining wall erected by the state along towpath of Erie
Canal, thrown into canal, drowned; deft had appropriated a
strip of land belonging to the state between its own property
and the wall for part of its road, had not erected any railing on
the wall; to have erected a railing on its own land would have
narrowed the street at one point to less than 7 feet; court
charged, deft had no right to build a barrier on the state wall
unless permitted by the state; refused to charge that ifa railing
outside of the state property would be dangerous to the
travelling public deft was not negligent in failing to build a

guard there.
(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)
298 Cases CONDENSED. [1885.

Gorrures v. N. Y. LAKE Erie & W. R. R. Co,
100 N, Y., 462.

Where a railroad company receives from another road for transportation on
its own road a car so constructed as to be unsafe for its servants to handle,
and this unsafe condition is discoverable by ordinary inspection and
easily remedied, it owes a duty to its servants to put the car in safe
condition before transporting it.

Plff injured while coupling cars on deft’s road, bumpers of
insufficient size, cars not owned by deft, came loaded from an-
other road, placed in its train, in good repair, defect one of con-
struction, easily discoverable, easily remedied by nailing addi-
tional strips of wood on bumpers of sufficient thickness to afford
adequate protection to brakeman. Injury, collar bone and ribs
broken, side crushed, eye sight impaired, right eye destroyed.

(Verd. $5,000. —Aff. at Gen. T.—Aff.)

GUILLAUME v. GEN. TRANSP. Co. 100 N. Y., 491.

Plff’s gold shipped to him under oral contract by his agent,
to whom, two days after, deft sent bill of lading containing mis-
take in plff’s name, (reversing first and last name) and a clause
that shipper consented to its conditions ; agent did not return
bill of lading; deft sent duplicate to consignee in the wrong
name, which, falling in a third person’s hands, who claimed to
be such consignee, enabled him to obtain the gold. eld, deft
liable ; where goods have actually been shipped under an oral
contract the subsequent receipt of a bill of lading and neglect
of shipper to point out errors therein do not preclude him from
showing the oral contract,

STRINGHAM v. StEwarT. 100 N. Y., 516.

Plff employe, fell down deft’s elevator shaft, was engaged in
pulling a van off the elevator on to a platform in upper floor of
deft’s barn, was on the platform, engineer without orders or
warning suddenly applied the power, elevator ascended to the
top of the shaft, cable broke, elevator fell carrying the plff
down with it; elevator for freight, had no safety clutches and
was not constructed as one should be for carrying passengers,
plff had ridden up in the elevator with his load.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)
1885. ] Cases CONDENSED. . 299

 

Notr.—The discussion in the Court of Appeals turned on the question
whether plff was negligent in riding up, the deft’s counsel having admitted
on the trial that the elevator was not a proper one for carrying passengers.
But as the accident did not happen to plaintiff while riding on it, or because
he had ridden on it, but would have occurred if he had walked up, the hold-
ing that it is not necessarily negligent in a servant to ride on a freight
elevator with the master’s permission is really an obiter dictum.

RO.uuINs v. FARLEY. 100 N. Y., 620.

Piff's house injured by explosion of dynamite cartridges used
by deft for blasting, negligently placed in contact with hotsteam-
pipe.

(Verd. for plff.—Aff. at Gen. T.—Aff.)

(Only a question whether evidence sufficient to sustain verdict.)

DAVENPORT 0, BROOKLYN Crry R. R. Co. 100 N. Y., 632.

It is negligent for a passenger fo attempt to board a street-car on the side
next the other track in plain sight of a car approaching on it and not far
off,

Plff passenger boarding deft’s street-car on side next other
track, struck by its car coming up on the other track, saw the
car some distance off.

(Nonsuit.—Aff. at Gen. T.— Aff.)

Cummins v. Crry oF Syracuse. 100 N. Y., 637.

It is negligent for a person ina strange place on a dark night to attempt
to retrace his way over a bridge, without the light and guide which he had
on going over it the first time which are still at his disposal,

PIff walked through unguarded place in deft’s bridge mid-
night, fell into creek, strange city ; had crossed the bridge with
a friend who knew locality and had lantern, was returning,
without friend who was to follow in a moment; disregarding
friend's question where he was going, went on, glimmer on the
water from a light ahead deceived him, thought it was street,
walked off. Injury, scalp wound, right thigh fractured, back
bruised.

(Verd. $3,000.—Aff. at Gen. T.—Aff.)
300 Cases CONDENSED. (1885-86.

 

BUTLER v. SMALLEY. 101 N. Y., 71.

The neglect of trustees of a manufacturing corporation, to state in the aggre-
gate of indebtedness in their annual report certain of its liabilities, does
not, in the absence of bad faith, even though they knew of the liabilities,
subject them to the penalty for filing a false report.

Also, rule in Cameron z, Seaman, 69 N. Y., 396, re-affirmed.

SIEFERT v. CITY OF BROOKLYN. 101 N. Y., 136.

Where it appears during the building of a public work that the original plan
upon which it is being built is defective, and that the carrying it out will
result in injury to neighboring owners, if the municipality persists in
carrying out the plan, it is liable for the damages resulting to a property
owner.

Plff's property injured by reason of insufficient sewer.

¢

WOLF v. KILPATRICK. 101 N. Y., 146.

The owner of leased premises, who is not under agreement with his tenant
to keep them in repair, is not responsible to passers-by on the sidewalk for
damages sustained through its getting out of repair during such tenancy.

Pléf fell into coal hole in sidewalk of deft’s premises, occupied
by tenants, during such occupancy stone supporting coal hole
cover was broken by strangers, deft knew nothing of it, was not
under agreement to repair. Injury to hip and thigh.

(Verd. $1,700.—Aff. at Gen, T.—Rev. new tri. ord.)

HILDRETH v. City oF TRoy. 101 N. Y., 234.

Plff injured through deft’s negligence in failing to keep its
street in safe condition. Injury, back sprained, head bruised.

(Verd. $1,800.—The only question on appeal was one arising
ona challenge toa juryman.—Aff. at Gen. T.—Rev. new tri. ord.)

WELSH v. WILSON. 101 N, Y., 254.

It is lawful to obstruct a sidewalk temporarily by placing skids across it over
which to remove one’s goods.

A person lawfully obstructing a sidewalk temporarily is under no obligation
to furnish an absolutely safe passagé-way around the obstruction.
1833. } Cases CONDENSED. 301

 

Piff slipped on steps in front of deft’s store, stepping over them
to get round skids temporarily placed by deft across sidewalk
in order to remove goods from store to truck.

(Nonsuit.—Aff. at Gen. T.—Aff.)

HEXAMER v. WEBB. 101 N. Y., 377.

The rule of non-liability for a private contractor’s negligence applies to the
case of a mechanic employed to repair a building, although no price for
his work is agreed upon, where he is free as to how and by whom he will
make the repairs.

Or,

Mechanics employed to do repairs in their own way, by their own servants,
and without stipulated price for their work, are to be considered as con-
tractors for whose negligence in carrying out a lawful contract the other
party is not responsible.

A city ordinance prohibiting goods, wares, merchandise or any thing
being hung on the front of a building does not apply toscaffolds hung for
the purpose of repairing the building.

PIff, passing along sidewalk, struck by planks falling from scaf-
fold suspended on deft’s hotel, used by workmen of a roofer,
latter employed by deft to make repairs under eaves of hotel,
contract with roofer was to do the best he could, no price
named, hotel separated from sidewalk by area 15 feet wide;
ordinance prohibited hanging goods, wares, merchandise or any
thing in front of a building at a greater distance than one foot,
scaffold wider.

(Nonsuit.—Aff. at Gen. T.—Aff. )

LARMORE v. CRowN Point Iron Co. 101 N. Y., 391.

The duty of keeping one’s machine in due repair is not a duty which is
owing to a person who comes uninvited upon one’s premises.

Or,

A person who goes upon the land of another without invitation to secure
employment from its owner, is not entitled to indemnity from such
owner for an injury received from a defective machine on the premises
not obviously dangerous, which he happens to pass.
302 Cases CONDENSED. [1886.

 

PIff went on deft’s premises in search of work, struck by a
lever, flew out of place on deft’s machine for raising ore from its
mines, machine had gotten out of repair, deft had omitted to
repair it, and to make proper inspection of it. Injury, both legs
broken. :

(Verd. $1,800.—Aff. at Gen. T.—Rev. new tri. ord

Marsa v. CHICKERING. 101 N. Y.. 396,

Where an appliance furnished by the master for the servant’s use is a simple
one, any defects in which are fully understood by the servant, the servant
takes the risk of such defects.

Plff, employee, lighting lamps in front of deft’s premises by ail
of ladder, ladder slipped on sleet, had no spikes below, nor
hooks above, plff had called superintendent’s attention to defi-
ciency, latter promised to have hooks and spikes put on. Injury,.
leg broken.

(Verd. $4,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Greavey v. Lone Isvanp R. BR. Co. 101 N. Y., 419

The testimony of passengers on a train that they did not hear any signals on
approaching a crossing is admissible.

When there is any evidence, direct or inferential, of care on the part of a per-
son approaching a railroad crossing, to look for a train, the question
whether he was negligent in crossing is one of fact.

PIff injured by deft’s train at crossing, had stopped, used some
care in looking for train ; evidence from passengers on the train
that they did not hear any signals and were so situated that they
might have heard signals if given, admitted. Injury, skull frac-
tured, paralyzed in both legs and left side.

(Verd. $6,000.—Aff. at Gen T.—Aff.)

SWEENEY v. BERLIN & Jones Env. Co. 101 N. Y., 520.

Where a machine furnished by a master for his servant’s use is, though old-
fashioned, not of defective construction, nor out of repair, and the absence
of a suggested appliance for safety does not make its use with care
absolutely dangerous, the servant, using it with full knowledge, assumes
the risk of such use.
1886. ] Cases CONDENSED. 303

 

A master owes no duty to his servants to discard old-fashioned machines
for new ones, or to put new safety appliances on the old ones, where they
are not of defective construction and their use, with care, is not absolutely
dangerous.

Plff, employe, injured while tending deft’s machine, properly
constructed, not out of repair, might have been made safer for
his use, if a contrivance he suggested had been adopted by
deft, spoke to deft about it, latter said if he did not like to tend it,
could leave; plff asked him to have improvement put on it,
was referred to deft’s machinist, latter said would do it when
had time; none of the machines of this style had plff’s contriv-
ance, were old-fashioned, safe ordinarily, tended by plff for
several years. Injury, hand crushed, forefinger and thumb cut
off.

(Verd, $500.—Aff. at Gen. T.—Rev. new tri. ord.)

BENZING v. STEINWAY & Sons. 101 N. Y., 547.

A servant does not assume the risk of the safety uf a platform furnished
by his master, where its defect is not apparent and he is told it is safe.
Plff, employee, injured by breaking of platform, on which he

was ordered to get by deft’s foreman, who called him away

from work for which he had been employed, and in response to

an inquiry from plff replied that the platform was safe ; defec-

tively constructed, plff had no opportunity to discover this.
(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

NEUBAUER v. N. Y. LAKE ERIE & W. R. RB. Co..
101 N. Y., 607.
PIff, employe, injured through carelessness of foreman,

(Nonsuit.—Aff. at Gen. T.—Aff.)
Crispin v. Babbitt, 81 N. Y., 516, reaffirmed.

SEARLES v. MANHATTAN R’way Co. 101 N. Y., 661.

“Where an accident may have happened from one of two causes, as to only
one of which negligence can be predicated, and there is no proof as to
which was the cause, the plaintiff should be nonsuited.
304 Cases CONDENSED. {1886.

 

Piff, passer-by on sidewalk, eye injured by cinder from deft’s
engine on elevated road, must have escaped from smoke-stack
or ash-pan; the appliances to arrest sparks were the best known
and skillfully made; it did not appear where the cinder came
from, but it was conceded if from smoke-stack, deft not liable ;
claimed ash-pan out of repair, no proof of this nor that the
cinder came from it.

(Verd. $600.—Aff. at Gen. T.—Rev. new tri. ord.)

Nore.—See rule in Seeley case, 102 N. Y., 719.

ALLISON v. VILLAGE OF MIDDLETOWN. 101 N. Y., 667.

The fact that an injured person in locating. the spot where the accident
occurred makessome inconsistent statements, one of which, if true, shows
that the defendant is not liable, does not require a nonsuit.®

PIff slipped on ice on deft’s sidewalk; on her direct she testified
that she slipped on the sidewalk, afterward gave number of
feet from the curb where she fell, also number of feet from steps
of house; both of these statements could not be correct; if one
was correct, she fell on the sidewalk, if the other, she did not.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

WOOLLEY v. BALDWIN. 101 N. Y., 688.

The mere failure of a county treasurer to collect a bond and mortgage in his
hands as such is not negligence.

CODDINGTON v. B’KLYN Crosstown R.R. Co. 102 N. Y., 66.

A carrier of passengers, on crossing a steam railroad track, is bound to use
the utmost skill and foresight.

Plff, passenger, riding in street-car, car struck by locomotive
at a crossing; court charged that if the plff had satisfied the
jury that the accident could have been avoided by human fore-
sight, by the utmost skill and foresight on part of deft, it was
liable. Injury to leg and side, shock.

(Verd, $1,750.—Aff. at Gen. T.— Aff.)
1886. ] CasEs CONDENSED. 305

 

HALLAHAN v. N. Y. LAKE ERIE & W. R. RB. Co.
102 N. Y., 194.

Evidence of a confusion among the other passengers on a train, concurrent
with an injury to one of them, is admissible, in an action by that one
against the carrier, as part of the res gestae,

Plff's elbow resting on sill of open window of deft’s car,
struck by arm of mail crane; evidence that confusion was pro-
duced among the passengers by noise on the outside of the car
admitted. Injury, arm broken.

(Verd. $5,000.—Aff. at Gen. T.—Aff. )

Twoaoon.v. THE Mayor &c. of N. Y. 102 N. Y., 216.

Report by a policeman, in the usual course of duty according to a city
ordinance and police regulations, to his superior officer of an unsafe
condition of a sidewalk, is sufficient to charge the municipality with notice
thereof,

PIff slipped on snow and ice suffered to accumulate on deft’s
sidewalk, around city park, patrolman had reported its condi-
tion to his superior as required by ordinance and regulations of
police department; court charged this not in itself sufficient to
charge city with notice.

(Verd. for deft.—Aff. at Gen. T.—Rev. new tri. ord.)

Dvusotls v. Ciry or Kinestox, 102 N. Y., 219.

It is negligent for any one running along a sidewalk not to avoid a stepping-
stone of whose existence he knows.

Or,

lf a person running along a sidewalk is so full of the object of his run as to
forget the existence of an obstruction he knows of, he takes the risk of
injury from it.

It is not negligent in a municipality to maintain stepping-stones on its side-
walk for the convenience of persons alighting from vehicles.

Pliff fell over stepping stone on deft’s sidewalk in front of Post
Office, at the curb for convenience of persons alighting from
vehicles, he knew it was there, was running to a fire; five per-
sons had been injured at same stone. Injury, muscles of leg
ruptured.

(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord.)
306 Cases CoNDENSED. [1886.

 

Pavuitscn v. N. Y. Cent. & H.R. BR. R. Co. 102 N. Y., 280.

A railroad company is not bound to hold its train so that a belated passen-
ger may get on board.

Or,

After reasonable opportunity has been given for passengers to leave or board
a train at a station and the signals to start it have been given, a railroad
company is not bound to hold its train so that a belated passenger may
get on board. °

Pliff, passenger, boarding train, she was belated, after all
passengers who wished to do so had gotten off or on, and sta-
tion platform was vacant, drop platforms on cars raised,
conductor signaled to engineer to start, she appeared, tried to
get on, train started ; court refused to charge, when the people
who desired to stop at the station had left the train, and the
persons who were then on the station platform had entered the
train, deft had the right to raise the drop platforms and start
the train; the court charged this with this qualification,
provided that they had given each person having a right to
enter on that train as a passenger, the opportunity to get on
board. Injury, foot amputated.

(Verd. $12,500.—Aff. at Gen. T.—Rev. new tri. ord.)

Evarts v. Kizau. 102 N. Y., 296.

A justice of the peace is not answerable as for negligence in failing to decide
a case within the statutory time,

REINING v. City OF BUFFALO. 102 N, Y., 308.

When the charter of a municipal corporation provides that no action shall
be brought against it until after a presentment of the claim to its common
council, it means what it says.

Plff sued for damages sustained by unlawful erection in deft’s
street; deft’s charter provided no action should be brought
against it until expiration of 40 days after claim presented to
common council; complaint contained no allegation of such
presentment : demurrer, no cause of action.

(Dem. sustain.—Aff. at Gen. T.—Aff.)
1886. ] Cases ConDENSED. 307

 

MERRITT v. Firzarppons. 102 N. Y., 362,
Under an ordinance allowing vehicles to occupy sidewalks for business
purposes, the animal by which it is drawn is included.

Plff, passer-by, slipped on coal hole cover, fell under horse
standing on sidewalk, horse raised his foot, put it down on
plffs ankle breaking it, horse gentle, one of team attached to
truck, belonged to deft who had a store at the place, street nar-

_ row, car track in it near sidewalk, city ordinance provided that
in such cases vehicles might during business hours occupy so
much of the sidewalk as might be necessary, provided sufficient
space were left in it for passage of pedestrians; plff relied on
ordinance prohibiting horses on sidewalks. Injury, leg broken.

(Verd. $600.—Aff. at Gen. T.—Rev. new tri. ord.)

Query.—If piff, instead of relying on an ordinance which could not apply
because of the exception created by another ordinance, had relied on the
theory that the coal hole cover, worn by time, made the sidewalk unsafe,
could she not have recovered ?

BARBER v. ABENDROTH. 102 N. Y., 406.

A dock owner, who knows that at low tide the bottom is dangerous for the
mooring of vessels at one part of his dock, must inform a person lawfully
mooring at its dock of the danger. ;

Plffs boat arrived at midnight at deft’s dock with cargo of
sand, ordered by him; plff asked his watchman where to
moor, watchman replied did not know, plff asked where last
boat landed, watchman pointed, plff moored there, tide fell,
boat rested on bottom at both ends, depression under centre,
causing boat to settle in centre, injured ; deft knew of danger-
ous condition of the bottom.

(Verd. for plff.—Aff. at Gen. T.—Aff.)

KALBFLEISCH v. LonG Isuanp R. BR. Co. 102 N. Y., 520.

It is not negligent for a person to have inflammable material on his
' premises near a railroad track.

Plff's building destroyed by fire, kindled by sparks from deft’s
engine, spark arrester out of order ; building leased, tenant had
varnish factory, engine passed as benzine was being used to
thin varnish, benzine giving off vapor, readily took fire.

(Verd. for plff—Aff, at Gen. T.—Aff.)
308 Cases CONDENSED, (1886,
GEISMER v. LAKE SHORE & M.S. RB. R. Co. 102 N. Y., 563.

Acommon carrier of goods is excused for a delay in forwarding goods,
which is due to riotous strikers, who, by intimidation of remaining em-
ployees, prevent them from moving its trains.

 

Hayes v. Bus & DENSLOW Mayr. Co. 102.N. Y., 648.

Pliff’s son, lad of 15, employee, fingers caught between dies of
stamping machine, court charged in substance same as had
been charged in Hickey v. Taafe, 99 N. Y., 204, Injury, finger
amputated.

(Verd. $250.—Aff. at Gen. T.—Rev. new tri. ord.)

WHITE v. OLD Domtnton 8. 8. Co. 102 N. Y., 660.

It is negligent for a tower to take a tow to sea in the face of a storm blowing
toward shore, after notice thereof given by the cautionary signals of the
signal service.

See note to Connelly v. Manhattan R, Co., 142 N. Y,, 377.

BARTHOLOMEW v. N. Y. Cent. & H. R. BR. R. Co.
102 N. Y., 716.

It is negligent management of a railroad train when, after a station has
been announced to passengers and the train has slowed down, so that to
persons of ordinary intelligence, it appears to have stopped, and passen-
gers are about to alight, it is allowed to be jerked or started suddenly
without warning.

Plff passenger, her station announced, train stopped as she
supposed; she went on platform to get off, sudden jerk of train
threw her from the platform ; court charged that if when she
stepped on platform, the train had stopped, or appeared to per-
sons of ordinary intelligence to have stopped, the announce-
ment of the station having been made, and a sudden jerk threw
her off, the deft was liable. Injury, left foot amputated. ;

(Verd. $10,000.—Aff. at Gen. T.—Aff.)
1886. | Cases CoNnDENSED. 309
SEELEY v. N. Y. Cenv. & H. R. R. RB. Co. 102 N. Xa TID,

Where an injury may have come from out of two causes, one of which is
inculpatory, and the other is exculpatory of defendant, it is for the jury
‘to say which was the cause.
Or,
Where a spark may have escaped from an engine in good order, or from an
engine in bad order, it is for the jury to say which engine it came from.

 

Plffs barn, near deft’s track set on fire by sparks ; two of
deft’s locomotives passing about the time of the fire were
properly provided with fire-screens ; a short time prior to the
fire, others had passed with defective fire-screens.

(Verd. for plff.—Aff. at Gen. T.—Aff.)

NoTE.—See, however, Searles case, 101 N. Y., 661.

Rempe v, N. Y. Ont. & West. R. R. Co. 102 N. Y., 721.

When a crossing is being constructed over a railroad track, any temporary
crossing must be made reasonably safe for temporary use.

It is not negligent for a traveller to attempt to cross an unsafe temporary
railroad crossing, which appears to be safe on the side he approaches,
and which the workmen building it aid him to cross.

Piff injured by upset of his wagon, horse ran away, frightened
while crossing deft’s track, track being built across highway,
top of rails and planking between them about 11 inches above
the road, temporary planks to facilitate crossing overlaid on
ends of ties, with a plank aslant from tie ends to road; plff
asked deft’s workman when he could get across, foreman replied
as soon as he could; reply not heard by plff, who, crossing
appearing safe, went ahead; foreman told one of his men to
lead horse over, did so; while going down other side horse,
skittish, took fright from wheel coming down too suddenly.
Injury, contusion of shoulder, arm disabled, shock.

(Verd. $500.—Aff. at Gen. T.—Aff.)

Marx v. Hupson Riv. BRIDGE Co. 103 N. Y., 28.

The fact, that one’s own property is imperiled without right by the property
of another, does not give to the owner of the former any right to remove

the latter in a reckless manner.
310 Cases CoNDENSED. [1886.

 

Plff's ferryboat caught by floating ice, driven against deft’s
bridge, deft’s superintendent, in endeavoring to remove it,
pulled it by main force through the bridge without plff’s con-
sent, in face of warning it would bring down the bridge, span
of bridge fell, crushed boat. :

(Verd. for plff.—Aff. at Gen. T.—Aff.)

OLIVE v. WHITNEY MARBLE Co. 103.N. Y., 292.

The owner of a boiler bought from its makers under guaranty owes no
duty to the servants of the latter, who are sent to repair it, beyond that of
notifying them of any defects, which have come or ought to have come
to his knowledge.

Where work upon one man’s property is being done under contract by
another man, and the owner of the property lends one of his servants to
assist the other under such other’s directions, the owner is not responsible
to the latter for the negligence of such servant while so engaged.

Or,

When a master lends a servant to assist another person, and entirely
under the latter’s directions, in doing work under contract on the master’s
property, the master is not responsible to the other for the negligence of
such servant while so engaged.

When a boiler explodes while being repaired, and there is no proof as to
the cause of its explosion, inference of negligence on the part of its owner
cannot be drawn.

Or,

The inference of negligence, which arises against the owner of a boilerfrom
the mere fact of its explosion, does not arise when the explosion happens
while it is being repaired.

Plff’s testator killed by explosion of boiler, owned by deft;
makers had sold it a few months before on guaranty, had
just been repaired by makers, was being tested, servant of
makers directing the testing; deceased, also servant of makers,
assisting; deft’s engineer, also killed, had fired up boiler, did not
appear at whose request, presumably at deceased’s request.

(Nonsuit—Aff. at Gen. T.—Aff.)

Basus v. SYRACUSE, Bine. & N.Y. RB. B. Co. 103 N.Y., 312.

A railroad company owes no duty to its employees to furnish locomotives
which are adequate to draw its cars.
" * * 1886. ] Cases CONDENSED. 311

 

Though the control over a locomotive may be lessened because a throttle
valve is defective, the defect is not the proximate cause of an injury result-
ing from its not being stopped in time, where the signal to stop was not
seen by the engineer in time, and when seen was promptly obeyed.

PIff, yard master, run over, was shifting cars, yard engine
stalled on grade, wishing to uncouple some cars, ordered
engineer to back, engine backed slowly, went between moving
cars to uncouple, foot caught in brake beam, signalled to stop,
signals not seen nor heard by engineer until dragged fifty feet,
then seen, engine stopped within five feet, too late, foot
crushed; engine’s flues foul, main steam valve leaked,
throttle valve leaked, leak of throttle valve lessened control
over engine, but this not cause of injury, as it was stopped
within five feet after plff's signals were seen; the other defects
did not lessen control, only diminished horse power, engine
originally 80-horse power, by reason of foul flue and leak of
steam valve reduced to 70. Injury, leg amputed.

(Verd. $7,000.—Aff, at Gen. T.—Rev. new tri. ord.)

WILMERDING v. McKEsson. 103 N. Y., 329.

_An executor must not allow the estate’s moneys received by his co-executor
to be usedin the business of the co-executor’s firm.

One executor is not liable for the act of his co-executor in hypothecating for
his own use, without the former’s knowledge, securities belonging to the
estate.

SOLOMON rv. MANHATTAN Rattway Co. 103 .N. Y., 437.
A passenger, who, after the train has started, attempts to board it in spite of

the opposition of the guard, does so at his own peril.

Piff’s intestate, passenger, attempted to board train after it
had started ; platforms of station and car on a level, gate on car
platform closed against him by the guard, clung to car, carried
against water-pipe, only foot from where he got on. Injured
fatally.

(Nonsuit.—Aff. at Gen. T.—Aff.)

ABEL v, DEL. & Hup. C. Co. 103 N. Y., 581.

It is the duty of the master to adopt and promulgate proper rules for the
protection of his servants while engaged in their work.
312 Cases ConDENSED, [1886.

The fact that servants agree among themselves upon certain rules for their
own protectionin prosecuting their work, does not absolve the master

from his duty to adopt and promulgate proper rules.

It is not negligent for aservant to prosecute his work in reliance upon rules
for protection agreed upon between him and some ot his fellow-servants,
though not to his knowledge brought to the notice of all the servants who
may, if those rules are not followed, cause him injury.

Plff's testator, employe, repairing deft’s car on a siding, killed
by backing of an engine against it; deft had not promulgated
any rules for the protection of its car repairers under such cir-
cumstances ; its employees had, as among themselves, adopted
a rule for protection in such cases, but it did not appear to be
generally known among deft’s engineers.

(Nonsuit, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
for deft.—Rev. new tri. ord.)

 

CRANSTON v. N. Y.C.& H,R.R.R. Co. 103 N. Y., 614.

Plff’s intestate, killed at deft’s crossing ; case turned on state-
ment by court to jury who had come into court stating could
not agree, that he could not take the statement, saying that ‘‘no
juror ought to remain entirely firm in his own conviction one
way or another until he has made up his mind beyond all question
that he is necessarily right and the others necessarily wrong.”

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Martin v. N. Y., N. Hav. & Harrrorp R. BR. Co.
103 N. Y., 626,

Plff intestate, employe, uncoupling cars, injured, dicd; his
declarations, as he was being carried away from under the car,
that he had pulled out the pin, made a grab for the car, nothing
to grab, admitted. ,

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord. )

Waldele case. 95 N. Y., 274, re-affirmed.
1886. | Cases ConDENSED. 313

 

SuHaw tv. SHELDON. 103 N. Y., 667.

A servant, who knowingly works near an insufficiently guarded machine,
the danger from which is obvious, assumes the risk.

Where a servant, having knowledge of a danger, declines a master’s profler
to guard him against it, the master is freed from responsibility about it.
Piff’s intestate, foreman of rollers in deft’s rolling mill, stepped

on iron tube near uncovered rollers, foot slipped off and be-

tween revolving coupling of rolls, died from injury; court
charged, if jury believed evidence of deft’s superintendent that
he asked deceased if he wanted couplings covered and latter
declined the precaution, it was a circumstance for them to con-
sider upon the question of the assumption of consequent dam-
ages by deceased,

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

CARD v. MANHATTAN Raitway Co. 103 N. Y., 670.

Piffs testator killed while endeavoring to board deft’s moving
train.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Rule in Solomon case, 103 N. Y., 437, reaffirmed.

GARDINIERV.N. Y.C. & H.R, R.Co. 103.N. Y., 674.

Where a dead body is found on a-railroad track beneath an insufficiently
guarded bridge of a highway, and there is no evidence as to how it got
there, other than the fact that the injury causing death was, in the opinion
of the attending physician, such that it might have come from a fall from
the bridge, or from acar, or from a blow, an inference that the deceased
came to his death by a fall from the bridge is not permissible.

Plff's intestate found dead on deft’s track, under highway ;
deft had constructed bridge to carry highway over the tracks,
not protected by sufficient guard; physician testified injury
causing death was such as might have come from falling from
the abutment, or from a car, or by a blow; no evidence that
deceased fell from or was on bridge, or was seen on road going
towards bridge,

(Verd. $1,750.—Aff. at Gen, T,—Rev. new tri. ord.)
314 CasEs CONDENSED. ({1887.

 

CHASE v. BELDEN. 104 .N. Y., 86.

If asteam yacht is navigating ariver under a coasting license, she must
carry the lights prescribed for coasting vessels.

Collision between deft’s. yacht and ,another vessel, at night,
yacht without light.

Kunz v. Crry or Troy. 104 N. Y., 344.

Whether the presence onasidewalk of an unlawful obstruction for four days
was sutticiently long enough for the city authorities to become apprized
thereof and remove it, is a question of fact.

Whether it is negligence in an attendant of a child of tender years, to leave
it for a few moments on a sidewalk in a busy street with a caution not to
go far away, is a question of fact.

Piffs intestate, boy of 5, on sidewalk of deft’s busy street,
left by his father for a moment with an injunction not to go far
away, played withtwo other children round a long counter on
the sidewalk, put there four days before by a neighboring saloon-
keeper, left tilted, insecure, fell over on boy ; injured, died.

(Nonsuit.—Aff, at Gen. T.—Rev. new tri. ord.)

McKinney v. GRAND St. &o. K. R. Co. 104 N. Y., 352.

When, in an action, the seal of secrecy placed by the law upon the lips of a
physician is once broken by his patient, the patient can not in that’ action
replace it by a new one.

Plff injured through defi’s negligence, the physician who
attended her professionally was called by deft as a witness, his
testimony on plff’s objection excluded; on a former trial of this
action plff had called him as a witness in her behalf and he had
testified fully as to her condition as learned by him by attend-
ing her. Injury to shoulder, internal injuries causing spitting
of blood.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

ByryeE v. N. Y.C.& H.R.R,R.Oo. 104 N. Y., 362.

(1st Appeal, 83 N. Y., 620).
(Qd * 94 « 12).
1887. ] Cases CONDENSED. 315

 

Whether, when arailroad train is approaching a crossing, which, while not a
public crossing, is used by the public with the company’s consent, itis a
sufficient warning of its approach to ring the bell, is a question of fact.

Facts substantially same as on first appeal.
(Verd. $7,500.—Aff. at Gen. T.—Aff.)

HUBBELL vt. Crry oF YONKERS. 104 N. Y., 434.

A municipality owes no duty to occupants of vehicles to have guard-raifs.
placed along an embankment which is separated from the roadway by a
wide sidewalk. :

A municipal charter empowering a common council to compel railings to be
placed at ‘ exposed places” in the streets does not, so far as occupants of
vehicles are concerned, impose any duty on the municipality to see thata
railing is placed along an embankment which is separated from a roadway
by a wide sidewalk.

Piff riding in wagon on deft’s street, driven by another, horse
shied at bicycle, driver could not control him, darted over curb
across sidewalk ten feet wide, fell down unguarded embank-
ment dragging wagon with occupants after him ; charter gave
council ‘power to compel railings to be put up at “ exposed
places” in the streets. Injury, shoulder joint sprained, side
bruised.

(Verd. $675.—Aff. at Gen. T.—Rev. new tri. ord. )

 

PoMFREY v. VILLAGE OF SARATOGA SPRINGS.
104 N, Y., 459.

Rule in Conrad and other cases, reaffirmed.

In an action against a municipal corporation for damages through neglect.
to keep its sidewalks clear of ice and snow, its ordinance requiring house.
holders to remove ice and snow from their sidewalks is not immaterial to
show that the municipal authorities are aware that accumulations of ice and
snow on sidewalks are dangerous. (Nor is it necessary, adds the court.)

It is admissible to show that a similar accident has happened at the same
spot from the same cause prior to the accident in suit.

Plff slipped on ice and snow suffered to accumulate on deft’s
sidewalk, which with drippings from a barn had risen so as to
form embankment three feet above ground, two and a half feet
higher than snow on sidewalk each sideof barn, been there two
weeks ; deft empowered by charter to regulate and repair side-
316 CasEs CONDENSED. [1887.

 

walks, and to raise money to doso; ordinance imposing penal-
‘ties on persons who should neglect to keep their sidewalks free
‘from ice and snow, admitted ; evidence by witness of fall at
same spot prior to plff’s fall admitted. Injury to spine.

(Verd. $8,000.—Aff. at Gen. T.—Aff.)

MILLER v. WOODHEAD. 104 N. Y., 471.

Mtoe by a landlord to a tenant, to use an unlet portion of his premises
for a specified purpose, casts no duty upon him to see that that portion is
safe for visitors of his tenants to tumble upon.

Piff, boy of 3, tumbled out of window in deft’s tenement
‘house, fell on or through skylight in roof foot below the window,
skylight had been covered by screen, screen old and rotten,
‘removed by deft, not replaced by new one; boy brought by his
mother on a visit to deft’s tenant, to whom, room he fell from, had
been let by deft with the right for her to go on the roof to hang
‘clothes, but with caution not to let children go on it; boy’s
mother had gone for a moment into another room, tenant
remaining in it, but only caught sight of escaping boy as he
-disappeared through window. Injury, skull fractured.

(Verd. $500.—Aff. at Gen. T.—Rev. new tri. ord.)

Monk v. Town oF New Utrecat. 104N, Y., 552.

-Neither Highway Commisssoners nor towns having. their liabilities, are
responsible for an error in judgment in repairing one highway rather than
another, when for lack of funds they have not money enough to make
both safe for travel.

‘When a highway is unsafe by reason of its being constructed on a defective
plan, adopted by commissioners over which a town has no control, it is not,
under Laws of 1881, chap. 700, made responsible for injuries arising
therefrom.

Plf wandered off sidewalk in deft’s town, rolled down
‘embankment at its side, intoxicated ; Laws of 1881, chap. 700,
provided that towns should be liable for injuries occurring in
highways in cases where the ‘‘ Commissioners of Highways of
said towns are now by law liable therefor”; no evidence how the
Commissioners of Highways of deft were supplied with funds
for repairs ; there was evidence that all received had been spent,
1887. ] Cases CoNDENSED. 317

 

not sufficient for ordinary repairs of all the roads and bridges ;
highway in question laid out under laws 1869, chap. 670, which
provided for laying out of highways in Kings Co. by certain
com’rs who, among other things decided as to the grades, the
defect in question being one of plan adopted by them before the
town had anything to do with the matter; court charged that
if jury found that the great necessity was to keep the actual bed.
of roadways safe, com’rs right in spending the money in so
doing, but if more important to guard the highway, then they
were wrong. Injury, leg dislocated. :
(Verd. $500. Order at circuit for nonsuit after verd.—Rev. at
Gen. T. judg. directed on verd.—Rev. judg. on nonsuit aff.)

SHERRY v. NVY.C. & B.R.R. BR. Co. 104.N. Y., 652.

When a person is not negligent in starting to cross a number of tracks, and.
while crossing is suddenly without warning confronted by danger
from an approaching train under circumstances likely to produce con
fusion of mind, it isa question of fact for the jury to say whether a quick-
ening of pace for advancing, rather than a stopping and retreating, is
negligent.

Plff's intestate, struck by train at village crossing, statutory
signals not given, train rounded a curve, obscured by box cars
standing on track, six tracks, high wind prevailing, mill near by
making noise; suddenly caught in place of danger without
warning, calling for instant determination, deceased quickened.
her pace, so as to cross ahead of train, but failed.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

CUMMING v. BROOKLYN City R. R. Co. 104 N. Y., 669.

Where a child of tender years has exercised the care which a person of
mature years should exercise, any negligence of its parent in allowing it
to go at large is immaterial.

Plff, girl of 5, crossing deft’s track, struck by dummy engine,
no signals given on approaching crossing, a train had stopped
on crossing in violation of city ordinance, plff had waited until
it went on, her view of dummy obscured by this train, plff her-
self exercised due care, mother negligent in permitting her. to
be at large. Injury, leg amputated.

(Verd. $10,000.— Aff. at Gen. T.—Aff.)
318 Cases CoNnDENSED. (1887,
GRaAVILLE v. N.Y. C. & H.R.R.R.Co. 104 N. Y., 674.

Where a plff recovers an award of less than $500, for damages for negligence
to which is added interest, which makes his total award exceed such sum,
the judgment entered thereon is appealable to the Court of Appeals,

 

Hickey v. TAAFFE. 105 N.Y., 26.
(ist Appeal. 99 N. Y. 204.)

The master’s negligent failure to warn an employee of immature years of
the dangerous character of a machine, which. such employee is to tend,
becomes immaterial when the employee is otherwise informed of and
understands the danger.

The removal by a master of an additional safeguard from a dangerous:
machine, placed on it by him as an experiment and found not to work
well, is not negligence.

Additional facts ; finger caught in button hole of collar, collar
had been started in under roller, hand drawn in; plff had been at
work tending this machine several weeks, dangerous machine,
not instructed by deft as to danger, but otherwise informed,
understood it fully ; machine in good order, on same plan as
large number of others, stopped by taking off belt at a point in
rear of roller, plff sat in front of rollers; deft had put a lever on
to stop it which was worked some distance off, lever found not
to work well, removed some time before plf{f began to tend
machine, did not appear that any of such machines were made
with such levers.

(Verd. $3,300.—Aff. at Gen. T.—Rev. new tri. ord.)

TaYLor v. Crry or Conors. 105 N. Y., 54.

A statute prescribing that no costs shall be inserted in any judgment
against municipal corporations, where the claim on which it is founded
was not presented to the chief fiscal officer of the corporation before suit
brought, does not apply to claims for damages from negligence.

Plff had a verdict for $2,000 damages, caused by defi’s negli-
gence; question was whether plff entitled to costs under Laws
of 1859, chap. 262, § 2, which provided that no costs should be
inserted in any judgment against municipal corporations, where
claim on which judgment founded not presented to chief fiscal
1987. Cases CoNDENSED. 319

 

otticer, before suit brought ; plff’s claim not so presented, costs
taxed by clerk.

(Order denying retax.—Rev. at Gen, T. retax. granted,--Rev.
order of Spec. T. aff.)

LOUGHLIN v. STATE OF N.Y. 105 N. Y., 159.

The rule as,to the non-liability of the master for an injury to one servant
through the negligence of another, applies to the state when sued under
chap. 321 of Laws of 1870.

Claimant, employee of state, digging clay from bank, loading
it on a boat, injured by fall of overhanging earth loosened by
boat captain also in employ of state; captain after loosening it
negligently set plff to work under it. Injury, leg bruised, para-
lysis of hip.

(Award $1,200.--Rev. remitted to Board of Claims for
rehearing. )

CHRysTAL v. TRoy & Boston R. RK. Co. 105 N. Y., 164.

‘The fact that a locomotive was not stopped in time to avoid running over
an infant straying on the track, is not sufficient evidence of negligence, in
the absence of anything to show that the engineer ought to have seen the
child sooner than he did, or did not stop as soon as he could after dis-
covering that it was heedless of the danger.

Plff, infant of 17 months, having walked for two months, run
over by deft’s train, track adjoined his house, mother had left
him in room going to sleep, had put a chair across doorway,
he got away somehow, wandered on to track, engineer did not
see himin time to stop fully, front wheels went over him. Injury,
two fingers and foot amputated.

(Verd. $8,000.—Aff. at Gen. T.—Rev. new tri. ord.)

TAYLOR v. CITY OF YONKERS. 105 N. Y., 202.

A municipality is entitled to a reasonable time to remove ice from its side-
walk, after the failure of the adjoining lot owner to comply with an ordi-
nance requiring him to remove it.

Aslightincline of a sidewalk, due to debris negligently suffered by a
municipality to accumulate, cannot be presumed to be the proximate
cause of a slip by a passer-by on ice covering it.

Ors,
320 Cases CONDENSED. [1887.

 

The negligent suffering of debris to accumulate upon a sidewalk, whereby
its surface becomes slightly inclined, cannot be presumed to be the prox-
imate cause of a passer-by slipping on ice formed thereon.

PIff slipped on ice on deft’s sidewalk, ice formed over night
from rain, deft had negligently allowed sand and gravel to
accumulate on sidewalk from overhanging bank on adjoining
lot, making incline towards curb, inch to the foot, no proof
plffs fall due to icy walk being on incline, Injury, hip broken.

(Verd. $1,420.—Aff, at Gen. T.—Rev. new tri. ord.)

REXFORD v. STATE OF N, Y. 105 N. Y., 229.

A claim against the state, for an injury sustained while crossing an unsate
canal bridge by a captain of a canal boat following his boat by land to
rejoin her, is not a claim arising from damages resulting from navigation
of the canal.

Claimant injured while crossing bridge over state canal,
was navigating canal boat on state canal, stopped at Syracuse
to discharge freight, sent boat on, started along berme bank of
canal to rejoin it, came to bridge standing close to water, to
pass it had to climb abutment; to facilitate climbing it state had
provided irons fastened in the stones to serve as ladder rungs,
stone to which one iron was attached loose, been loose for year,
fell out under his grasp ; act of 1870 chap. 321, in providing for
filing of claims for damages sustained from canals contains
proviso, ‘‘act shall not extend to claims arising from damages:
resulting from the navigation of the canals.”

(Claim dismissed.—Rev. remitted for rehearing.)

HEAcocK v. SraTE OF N.Y. 105 N. Y., 246.

It is negligent to build the banks of a canal of loose earth, not puddled nor
made tight, so that water leaks through them on to adjoining property.

ROcHE v. BROOKLYN Crry & Newrown R. R. Co.
105 N. Y., 294.

Declarations by an injured person of suffering from pain, made long after
the injury to a person who is not a physician, are inadmissible,
1887. ] Caszs CONDENSED. 321

 

PIff passenger, injured through deft’s negligence; her state-
ments that she suffered from pain made long after to a person
not a physician admitted. Injury to arm, shock.

(Verd. $2,000—Aff, at Gen. T,--Rev. new tri. ord.)

 

CLEWS v. BANK or N. Y. Nat. Bx. Ass’n. 105 N.Y., 398.
(Ist Appeal. 89N. Y., 418.)

Whether it is negligent for a paying-teller to answer an inquiry as to the
validity of a certification without referring to the bank books, which would
have disclosed an alteration in date and amount, isa question of fact.

 

BRINCKERHOFF v. BOSTWICK. 105 N. Y., 567.

An action by a stockholder of a corporation against its directors to call them
to account for damages sustained by the corporation by reason of various
acts of negligence and misconduct is an equitable action, in which they
are not entitled as of right to a trial by jury.

ANTHONY v. LEERET. 105 N. Y., 591.

When a master promulgates a sufficient rule for the purpose of protecting
his servants against an unsafe place in his premises, he is not responsible
to a servant for the damages sustained by him through the violation of
that rule by another servant.

Or,

A servant assumes the risk of his co-servants obeying the master’s duly
promulgated rules.

Plff employee, fell through trap-door in passageway in deft’s
establishment negligently raised from below by fellow-servant
against deft’s rules, plff knew of the trap-door, also of the rule.
Injury, spine injured, causing paralysis of legs, bowels and
bladder.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Query.—Is this decision to be considered as overruling in effect the Flike
case?
322 Cases CONDENSED. (1887.

 

Tozer v. N. Y. 0. & H. R. RB. R. Co. 105 N. Y., 617.

PIff injured through deft’s negligence at its crossing ; evi-
dence as to ulterior consequences which might ensue or be ap-
prehended, admitted. Injury to head (brain affected), arm and
leg. ,

‘(Verd. $8,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Rule in Strohm case 96 N. Y., 305, re-affirmed.

ScHWINGER v. RaAyMonpD. 105 N. Y., 648.
(Ist Appeal. 83N. Y., 192.)

Whether goods on deck were properly covered so as to protect them from
rain is not a matter for expert evidence.

FLECKENSTEIN v. Dry Dock, E. B. & B. R. R. Co.
105 N. Y., 655.

A street-car must not be carelessly driven against a vehicle which has been
running ahead of the car on the track, and is being driven off to give it
the right of way.

Or, ,

Street-cars have no exclusive but only a paramount right of way along their
tracks.

Plff injured while turning off deft’s track out of way of car,
driver of car carelessly drove it against his wagon; court charged,
deft had no exclusive, but did have paramount right to use its
tracks, persons driving in streets not absolutely bound to keep
off or get off the car tracks, must in reasonable manner respect
company’s paramount right, and if they do so, and without fault
areinjured through carelessness chargeable to owner of track,
law gives aremedy. Injury, collar-bone dislocated, groin and
head injured, hearing impaired.

(Verd. $1,0co.—Aff. at Gen T.—Aff.)
1887. ] Cases CONDENSED. 323

 

LAFFLIN v. BUFFALO & SOUTHWESTERN R. R. Co.
106 N. Y., 136.

In constructing platforms for passengers to alight upon from its cars, a
railroad company is only bound to exercise ordinary care to make it
reasonably adequate and safe for the purpose to which it is devoted,
keeping in view the dangers attending its use.

Where a platform at a station has been used for many years by thousands
of passengers night and day without danger, its maintenance is not negli-
gence.

A railroad company is not bound at properly constructed stations to
provide a person to assist passengers to alight.

Piff, passenger, alighted from carat station, night, missed foot-
ing, fell between; distances between side of car and platform of
station 11 in., car platform above ground 4% ft., station plat-
form above ground 3 ft., lower step of car 8 in. below station
platform and 19 in. from its line, second step 4 in. below, 26 in.
from; plff stepped from second step, did not hold railing, did
not look to see station platform, failed to reach it; night-light
from car, station windows, conductor’s lantern, platform
visible, platform not out of repair nor improperly constructed,
only claim was it was too far off, not further from track than
exigencies of road required, had existed for many years, used
by thousands, no one ever hurt there before. Injury, hip
dislocated, rib broken, womb displaced.

(Verd. $2,000, —Aff. at Gen. T.—Rev. new tri. ord.)

Swirr v. Pactric Main 8.8. Co. 106 N. Y., 206.

Action by shipper of whale oil for damages for negligence of
deft, the Panama R. R. Co. in transporting it; contract by defts
joint; bill of lading delivered after oil had left Aspinwall in vessel
for N. Y., differed from original contract, which was special.
Heid, (1) that two carriers, having continuous route may jointly
contract for shipment over it, (2) jointly liable for each other’s
negligence in transportation, (3) in absence of proof of accept-
ance by shipper of bill of lading in place of prior contract,
latter must prevail, (4) if contract to be considered as
made by the steamship co. alone for whole route, defts then
severally liable, the railroad co. as common carrier on general
principles and steamship co. on the special contract.
324 Cases CONDENSED. [1887.

 

Wooparpn vr. N. Y., LAKE ERIE & WEstT. R. R. Co.
106 N. Y., 369.

When a person is going over a railroad crossing, he must not allow a train
passing on a further track to engross his attention, so that he fails to look
for a train approaching on a nearer track.

Or,

It is no excuse for a person’s failure at a railroad crossing to look for a
train approaching on a track near to him, that his attention is diverted
by a train passing on a track beyond.

Plff’s intestate killed at street crossing, by coal car, ‘ kicked”
from train; when he was ten feet from track he might have
seen it forty feet off had he looked, his attention was diverted
to a train passing on a track beyond.

(Verd. $4,000.—Aff. at Gen. T.—Rev. new tri. ord.)

CASILL v. Hinton. 106 N. Y., 512.

A servant, who undertakes to doa hazardous thing in his master’s business,
without his master’s directions, by methods not sanctioned by him, and
with instruments not provided by him for such a purpose, does so at his
own risk.

Plff employee, requested by fellow-servant to remove revolv-
ing belt from shaft on to nails driven into scantling near shaft,
so as to stop it,in order to relace its ends; ends joined by leather
strings, worn out; hazardous thing, not necessary to relace
belts while machinery in motion, could have been done at noon
intermission, or machinery could have been stopped a moment
on superintendent’s order; plff ascended ladder, placed right
arm round beam near his head to steady him, seized belt with
left hand, failed to lift it, tried again, hand entangled in belt,
arm torn off, strain broke ladder, he found lying on floor uncon-
scious, broken parts of ladder around him, arm near by, no
one saw accident (that the accident occurred in this way rests
partly on inference, which the court at p. 521 says is ‘‘irresis-
tible”), ladder not furnished by defts for this use, accident not

attributable to its use, plff knew his attempt was dangerous.
Injury, as above.
(Verd. $7,250.—Aff. at Gen. T.—Rev. new tri, ord.)
1887, ] Cases CONDENSED. 325

 

SHERMAN v. DEL, Lack. & W.R.R. Co. 106 N. Y., 542.

A statement by a servant of the defendant just after an accident, that it was
due to his fault, is not admissible as part of res gestae.

Piff passenger, walking along aisle of car, fell over board
stretched across, resting on seats, used by brakeman to reach
ceiling lamps ; on cross-examination of brakeman, was asked
by plffs counsel what conversation had had with plff, answered
none; was then asked if he did not state to plff that he had for-
gotten to move the board back to its place, and that it was his
fault, answered no; plff re-called, testified brakeman had said
it was his fault. Injury, leg injured, rupture,

(Verd. $1,200.—Aff. at Gen. T.—Rev. new tri. ord.)

FURMAN v. Unton Pac. R. R. Co. 106 N, Y., 579.

Deft received from a prior carrier peanuts marked ‘“ Y” for
shipment to Denver, Col., no bill of lading accompanied them,
but a transfer sheet, with entry ‘‘Consignee Y Hup Zucca
Bros. ;” bill of lading issued to shipper by prior carrier stated
“marked Y, order notify Zucca Bros.;” deft’s way-bill con-
tained destination, but no consignee named; deft delivered
them to Zucca Bros. at Denver who produced no bill of lading,
who had no interest in them, and who had refused to honor
draft attached to bill of lading mailed by shipper, which papers
had been returned to shipper. ed, that on failure to deliver
the goods to shipper’s assignee on demand, deft liable for con-

version.

ARCHER v. N. Y,, N. H, & H. BR. R. Co. 106°N. Y., 589.

To bring without notice at an improper rate of speed up to a depot into the
neighborhood of outgoing passengers a train, he cars of which are so
constructed as to overlap the platform provided for passengers, is negli-
gence.

Where an injury occurs in another state through the management of a
train, the statutes of that state regulating the running of trains are ad-
missible on the question whether the train was negligently run.

Plff passenger, alighted from a train ata union depot in Hart-

ford, Ct., was standing on platform at side of depot arranging
for a cab, run over by deft’s train on a track so close to the plat-
326 Caszs ConDENSED. (1887.

 

form that the cars overlapped it; evening dark, plff did not

know of the track did not see train, no signal given, improper

rate of speed; statutes of Connecticut relating to running of

trains admitted. Injury, skull fractured, arm amputated.
(Verd, $19,500.—Aff. at Gen, T.—Aff.)

TEETS v. VILLAGE OF MIDDLETOWN. 106 N,Y., 651.

Piff injured through deft’s negligence in not removing obstruc-
tion in one of its streets. Injury to shoulder, hip and spine.
(Verd. $3,000.—Aff. at Gen. T.—Aff.)

Notre.—The only question was as to exclusion of testimony on cross-exam-
ination of a witness, going only to his credibility, his testimony on the
direct being entirely immaterial. :

GAGE v. VILLAGE OF HORNELLSVILLE. 106 N.Y., 667.

Question of costs under § 3245 of Code. Injury, knee sprained.
Report $356.
(Taylor v. City of Cohoes, 105 N. Y., 54, followed.)

Morris v. N. Y.C. & H.R. BR. RB. Co. 106 N. Y., 678.

It is not negligent in a railroad company to omit to remove from a rack
over a seat in its car a parcel, whose bulk and weight is not such as
should call the trainmen’s attention to it, or which if noticed by them, is
not so apparently placed in a dangerous position as to require removal.

Or,

A railroad company is not bound to remove from the racks above the seats.
in its cars packages placed there by passengers, unless they are obviously
improper for carriage in such places,

PIff passenger, clothes wringer in rack over his seat fell on
him; partly wrapped up, put there by another passenger. Injury,
head cut.

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)
1887.] Cases CoNDENSED. 327

 

ScaRFF v. METCALF. 107 N. Y., 211.

Unless there has been such a demise of a vessel as to take from her owners
all control of her, they are liable for the damages sustained by a seaman
in consequence of the neglect of the master to furnish proper medical care,

When a seaman is injured at sea and the ship’s master is advised by a phy-
sician at a calling port that surgical treatment should not be delayed be-
yond a certain day, it is the duty of the master to put the man ashore for
such treatment, when the chances are that the ship will not reach her
home port within the time named by the physician.

Piff, mate on deft’s ship, injured while on duty, when ship
reached a port in Cuba surgeon consulted ; surgeon advised
master surgery needed, dangerous to carry mate to New York
without an operation, if adelay exceeding 12 days would be in-
volved, plff would better be removed to shore; plff requested
removal and provision made for him as usual in such cases,
master refused, kept him on board, landed him in New York
more than twenty days after doctor’s warning, amputation of
le, necessary because of delay; master part owner, sailed
vessel on shares, arrangement such that he did not have abso-
lute control to exclusion of other owners. Injury, disease of leg
developed into aneurism of artery, amputation necessary.

(Verd. $1,500.—Aff. at Gen. T.—Aff.)

WatsH ¢. THE Mayor &c. or N.Y. 107 N. Y., 220.

The cities of New York and Brooklyn are liable for the damages resulting
to a passer-by from the negligence of workmen on their bridge.

Same accident as that in Walsh v. Trustees, 96 N. Y., 427.

Plff walking under N. Y. & Brooklyn bridge, workman on it
carelessly let a plank fall, struck plff; both cities sued; New
York demurred, no cause of action.

(Dem. overruled.—Aff. at Gen. T.—Aff.)

LAUBHEIM v, DE KONINGLYKE NEDERLANDSCHE
StoomBoor MatrscHapry. 107 N.Y., 228.
The fact that the treatment of a person injured atsea by asurgeon on board
the ship for an injury not ordinarily requiring amputation has so resulted

that amputation is necessary, is not by itself sufficient evidence of mal-
practice.
328 CasEs CoNDENSED. [1887.

 

PIf passenger, fell on board ship, fractured knee-cap, treated
by surgeon on board in deft’s pay; after landing amputation of
leg found necessary; no evidence that ship’s surgeon was an
incompetent man ; plff’s experts declined to say that his treat-
ment under the circumstances was bad.

(Nonsuit.—Aff. at Gen. T.—Aff. )

Busupy v. N. Y., LAKE Erte & W.R.R.Co. 107 N.Y., 374.

A railroad company which has allowed its car to be loaded by the shipper,
owes a duty to its servants to see that the shipper has loaded it properly
for transportation.

Piff, brakeman, on duty on freight train, going round curve,
stake holding lurnber on platform car gave way, load fell off
carrying him with it; car furnished by deft to shipper, loaded
by shipper, stakes provided by shipper, placed in sockets on side
of car to hold load on, stake defective.

(Nonsuit.—Rev. at Gen. T. new tri. ord.—Aff. judg. absol.
agst. deft.)

THE PEOPLE EX REL NASH v. FAULKNER. 107 N. Y., 477.

It is not negligent in a surrogate to deposit money of an estate in good faith
with a private banker in good standing and credit, pending proceedings
to determine the parties entitled thereto.

Youne v, N. Y., LAKE ERIE & W.R.R. Co. 107 N. Y., 500.

A person is not relieved from the necessity of a vigilant use of his own
senses to secure his own safety at a railroad crossing because he assumes
thata railroad employee, who happens to be stationed there at the moment,
is there to give warning to travellers, such employee being really a brake-
man and being there to couple on signal a train which has been parted
to let travellers through.

Plff struck by deft’s engine at a crossing, had passed over
one track between two parts of a freight train, which had been
divided so as to let travellers through, piff was walking fast,
stepped beyond the divided train, looked one way but not the

other, on stepping on next track struck by engine coming from
latter direction; brakeman of deft near the opening to couple
1887-88. | CasEs CoNnDENSED. 329

 

the divided train when signalled, not there to warn persons,
plff did not know he was a brakeman. Injury, leg broken and
head and arms lacerated.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Linty v. N. Y. C. & H.R. KR. R. Co. 107 N. Y., 566.

Where, by reason of the master’s defective appliance, a servant is unable
to extricate himself from a perilous place, and sustains an injury, the fact
that he was placed in peril through the negligence of a co-servant does
not operate to excuse the master.

Or,

Where a servant is placed in peril through the negligence of a co-servant,
from which, however, he could extricate himself if the master’s appliance
is in proper order, and because it is not he is injured, the defective appli-
ance is the proximate cause of the injury, rather than the co-servant’s
negligence.

Plff, employe, while climbing up a car engine bumped into
it, jar threw him off, car pushed plff quite a distance and finally
ran over him, car brakes out of order, had they been in order
and set, the car would only have moved about five feet and
would not have run over him,

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

STAAL v. GRAND St. & Newtown R.R.Co. 107 N. Y., 625.

In the absence of evidence as to the earning capacity of an injured person,
future pecuniary loss cannot be considered by the jury as an item of
damage.

Plff, passenger, injured while alighting from deft’s car; no
proof as to his circumstances, age, skill, what he had earned,
or could earn ; court charged could recover for future pecuniary
loss. Injury, hip joint fractured, permanent.

(Verd. $2,650.—Aff. at Gen. T.—Rev. new tri. ord.)

Uuricu v. N. Y. C. & H. R. RK. R. Co, 108 N. Y., 80.

When a person is travelling under a pass containing the usual agreement
of assumption by him of all risk of accident, his purchase of a seat in a
drawing-room car does not nullify such agreement,
330 Cases ConDENSED. [1888.

 

Plff riding on deft’s train on pass, by which he agreed to
assume all risks of accident whether by negligence of deft’s ser-
vants or otherwise ; rode in drawing-room car on special ticket
which he paid for; injured in an accident occurring through
deft’s negligence. Injury, head and face scalded.

(Verd $1,600.—Aff. at Gen. T.-~Rev. new tri. ord.)

Query.—If the accident had been due to the fact that the parlor car was
not roadworthy, would the agreement on the pass have exempted defendant?
If so, could plaintiff have looked to the parlor car company? Take the
case of a passenger travelling on a pass, who pays for a dinner ina dining-
car, and is injured in an accident resulting from its un roadworthiness. It
would seem.as if a payment for special privileges ought to entitle the
person, while in the enjoyment of them, to immunity from injury arising
from the failure to furnish those privileges in a safe manner.

CoRCORAN v. VILLAGE OF PEEKSKILL, 108 N. Y., 151.

In an action against a municipality to recover damages sustained on ac-
count of an unsafe sidewalk, it is not admissible to prove that after the
accident the house owner made the sidewalk safe.

Or,

Evidence that a house owner put a railing round an area in his sidewalk
after a person fell into it, is not admissible in an action to recover the
damages by such person against the municipality.

PIff fell into area in front of dwelling house on deft’s street,
guard round area only a low stone parapet foot high ; evidence
that after accident owner of house built a fence round the area,
admitted. Injury to spine.

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

BowEN v. STATE OF N. Y. 108 N. Y., 166.

Claims of next of kin under the Death Act, resulting from management of
canals, are included among the claims recoverable against the state under
chap. 321 of Laws of 1870.

Pliff's intestate, fell ‘through insecure railing of bridge over
state canal, drowned.
(Award. $1,500.—Aff. )

 
1888. } Cases CONDENSED. 331

 

SPLITTORF v, STaTE OF N. Y. 108 N. Y., 205,

The state owes no duty to the public to see that its bridges over canals are
safe for public use, when they were not built for the public use, and only
used by the public through sufterance.

It is negligent for a person who knows that a state bridge was not built
for public use and any crossing of it by the public is on sufterance, to
assume that it is in fit condition for safe passage at night.

Piffs intestate walked off partly open swing bridge over state
canal, dark night ; state had not built bridge for use by public,
no attendant ever in charge of it at night, public in habit of
crossing it by sufferance ; deceased lived near by, knew loca~
tion, structure and its purposes.

(Claim dismissed.—Aff.)

JEWHORST v. CITY OF SYRACUSE. 108 N. Y., 303.

Ifa municipality chooses to permit an unsafe plank walk to remain partly-
on its own sidewalk proper and partly on the land of an adjoining owner,
without anything to mark the dividing line, it is under thesame liabilities.
for damages to travellers over one part as over the other.

Plff walking along deft’s plank sidewalk, fell, sidewalk unsafe
for over a year, had been laid by property owner along his line,
so that part of it was on his own property, part on city’s side-
walk proper, nothing to mark the dividing line ; when plff was.
‘injured she was in fact on the adjoining land, not on the city’s
part, but she did not know it was not the city’s. Injury, ankle.
broken.

(Report $1,500.—Aff. at Gen. T.—Aff.)

MogEbvUs v. HERRIMANN, 108 N. Y., 349.

Foot passengers when crossing streets, are not bound to go over crosswalks,
but may cross where they please.

A person crossing a street is not held to the same duty as matter of law to
look both ways as when crossing a track,

Plff’s child, boy of 7, crossing street, knocked down by horse
driven by deft’s servant, was not crossing on the crosswalk ;
court refused certain requests to charge which assumed that.
it was negligence if the boy did not look up and down the street.
lefore crossing. Injury to limbs and body, stricture.

(Verd. $3,500.—Aff. at Gen. T.—Aff.)

4
332 Cases CoNnDENSED. [1888,
Piatt v. RicHMonpD Y. R. & C. RK. BR. Co. 108 N. Y., 358.

Cotton burned in transit, bill of lading given in South Caro-
lina, contained clause exempting deft from liability for loss by
fire, also carrier entitled to benefit of,insurance ; statute in South
Carolina forbidding common carriers within the state from
limiting liability by notice or contract; no proof fire due to
deft’s negligence, fire did not take place in South Carolina; insur-
ance company paid loss, took assignment of shipper’s claim
against deft, assigned it to plff. eld, (1) burden of proof as to
negligence on plff. (2) South Carolina statute did not prevent
deft from limiting its liability out of that state, (3) clause in bill
of lading as to insurance operated to relieve deft of all liability
on payment of the loss by the insurance company.

 

REED v. STATE OF N. Y. 108 N. Y., 407,

‘The state is liable under chapter 321 of the Laws of 1870 for the damages
resulting to an adjoining owner by reason of water percolating through a
bed of coarse gravel, negligently left exposed during the construction of
a state reservoir.

‘The collecting of a large body of water into a reservoir having a porous
and gravelly soil, without taking adequate precaution to keep it from
percolating into the adjoining owner’s property, is an act of negligence.

‘The injuries in such a case being inflicted from time totime, the statute of
limitations does not begin to run at the time of the building of the re-
servoir.

Plff's property damaged through water percolating through a
dam negligently built by the state.

BRICE v. BAUER. 108 N. Y., 428.

Rule in Mullen v. McKesson followed (73 N. Y., 195).

An offer of a wrong-doer to pay an injured person a certain sum per week
or to pay a doctor’s bill is admissible, if not made in compromise oraccom-
panied by a statement that was to be considered as confidential.

PIff bitten by deft’s dog, ferocious, vicious, kept by deft
chained, got loose in some way, went on plff's premises ;
evidence that deft said would pay plff $5 a week and doctor's
Dill admitted, no evidence that it was in compromise or confi-
dential. Injury, both arms bitten.

(Verd. $500,—Aff. at Gen. T.—Aff.)
1888. ] Cases CONDENSED. 333.

 

JENNINGS v, VAN SCHAICK. 108 N. Y., 530.

A permit by the proper municipal authorities to construct a coal hole in a
sidewalk does not give any right to let the hole remain uncovered.

The owner of an apartment house, who retains some control over itthrough
a janitor employed to look after it, is answerable for the damages resulting
to a passer-by from an improperly guarded coal hole in the sidewalk.

Owners of apartment houses are answerable for the neglect of theirjanitors
to keep their coal holes shut.

Or,

Janitors of apartment houses are agents of the landlords, not of the tenants,
as to the duty of opening and closing coal holes when tenants’ coalis being
delivered.

Pliff, passer-by, fell in coal hole in sidewalk in front of deft’s
apartment house, coal hole constructed under permit; plff though
letting apartments to various tenants retained general possession
and control through janitor; duty of janitor to open coal hole for,
and close it after, delivery of coal ordered by tenants ; janitor
had neglected to close it. Injury to side, back and legs.

(Verd. $4,000.—Aff. at Gen. T.—Aff.)

Kinney vr. Crry oF Troy. 108 N. Y., 567.

Something more than a slippery sidewalk must be shown to enable a per-
son, who has slipped on it, to recover from the municipality damages for a
fall.

PIff slipped on ice on sidewalk, not uneven, froze over night
after thaw, sidewalk in safe condition before. Injury, arm
broken.

(Verd. $1,000,—Aff. at Gen. T.—Rev. new tri. ord.)

Kaveny v. Ciry oF Troy. 108 N. Y., 571.

The duty of a municipality to keep its sidewalks reasonably clear from ice
does not require it in continuously severe weather to remove from its
sidewalk day by day the ice formed over night from the drippings of im-
properly guarded eaves of houses.

PIff slipped on ice on sidewalk, formed from drippings or
overflow from eaves of house, weather severe, had been so

fora month, Injury, arm broken.
(Verd. $2,541.—Aff. at Gen. T.—Rev. new tri. ord.)
‘B34 Cases CONDENSED. [1888.
Tanner v. N. Y.C. & H. R.R, BR. Co, 108 N. Y., 623.

Plff's goods burned in transit; bill of lading contained exemp-
‘tion clause against loss by fire ; plff gave evidence tending to
‘show fire communicated from freight house to car containing his
goods standing on track; freight house set on fire by sparks
from a defective engine. eld, question of fact (1) whether fire
due to that cause, (2) whether deft negligent in leaving the car
standing on windy day near the freight house, which was
wood, and roof of which had frequently caught fire from sparks
from passing locomotives. Judgment on verdict in plff’s favor
-affirmed.

 

Broeny v. BARTLETY. 108 N. Y., 632.
(S.C. 1 Silv. 575.)

‘Where, upon the plaintiff's evidence, different inferences may be drawn, one -
of which inculpates, and the other exculpates the defendant, the question
is one of fact for the jury.

Piff injured while using a defective truck, had brought a horse
‘to a dock where deft’s goods were being carted, under an
arrangement between deft and a truckman, which left it doubt-
ful whether the truckman was deft’s servant or an independent
‘contractor ; the truckman had hired the horse from a livery
man, who sent plff with it, plff remained, and was set at work
with the truck by deft’s foreman, who supposed he was one of
‘the truckman’s men : two questions arose on the plff's evidence,
(1) whether the truckman had hired the plff as driver with the
horse, or whether plff was a mere volunteer; (2) whether the
truckman who hired him, if hired he was, was a contractor, or
-a servant of deft.

(Nonsuit.—Aff. at Gen. T. —Rev. new tri. ord.)

BLACK v. BKLYN Crry R, R. Co. 108 N. Y., 640.

In an action to recover damages received while boarding a car, it is error
to leave to the jury to say whether the driver of another car of the
defendant, which happened to be passing, did his whole duty, in the ab-
sence of proof that he managed it in any other way than the circumstances
required.
1888. ] Cases CONDENSED. 335

 

PIff, passenger, injured while boarding car; another car of
defts on opposite track was. passing ; no proof that driver of
latter car managed it in any respect other than the circum-
stances required ; court left it to jury to say whether he did his
whole duty. Injury, upper and lower jaw bones fractured,
other injuries to face and head.

(Verd. $4,000.—Aff. at Gen. T.—Rev. new tri. ord.)

SHOOK wv. CITY OF COHOES. 108 N. Y., 648.

Whether the failure of a city’s street superintendent to require the removal
of dirt, which he sees thrown upon a sidewalk from an excavation, was
negligent is a question of fact.

Or,

Whether it was negligent for a superintendent of streets to omit to require
the removal of dirt, thrown upon a sidewalk from an excavation seen by
him, is a question of fact.

PIff slipped on sidewalk, made muddy by earth thrown up by
adjoining owner on digging trench and post holes along line of
lot ; disputed whether the earth had so remained for ten days
or two days, deft’s superintendent of streets present during
time, whatever it was, saw what was done; it did not appear
there was any necessity for throwing dirt on sidewalk rather
than on lot ; court refused to charge if dirt thrown up on Friday
before the Sunday on which accident occurred, deft not guilty of
negligence. Injury, thigh broken.

(Verd. $3,000—Aff. at Gen. T.—Aff.)

DONNELLY v, B’KLYN City R. R. Co. 109 N. Y., 16.

It is negligent for a person to drive along the track of a street railroad
when a dummy engine is expected on it.

When a person is riding in a vehicle driven by another, with whom he is
pursuing an undertaking in common, the negligence of the driver must be
imputed to him.

Plff riding in wagon driven by another along deft’s track in
city street, midnight, driver turned out of that track into next
one to pass a wagon, saw train coming on latter drawn by
dummy, tried to turn out, wheel jammed, collision, plff injured;
plff and driver engaged in common undertaking, plff made no
336 Cases CONDENSED. (1888.

 

objection to driver turning into other track, both accustomed to

travel over this way, knew locality, were expecting train.

Injury, ankle sprained, leg and shoulder bruised, eye cut.
(Verd. $2,000O—Aff. at Gen. T.—Rev. new tri. ord.) —

Key v. N. ¥. & Sea Beacn R. KR. Co. 109 N. Y., 44.

A broken hook ona stanchion at the side of a railroad observation car is
not so obviously dangerous, as that its mere presence is, of itself, suffi-
cient evidence of negligence in allowing it to be there.

PIff, passenger, on alighting from deft’s open or observation
car, clothing caught on broken hook in stanchion used to fasten
side curtains in rainy weather, thrown to ground, no evidence
when hook was broken, side curtains of such cars usually
fastened that way, millions of passengers carried yearly in such
cars, no such accident before, cars inspected at end of every
trip, hooks if broken replaced. Injury, wrist broken.

(Verd. $1,000. —Aff. at Gen. T.—Rev. new tri. ord.)

McDovuGaAL. v. StaTE OF N. Y. 109 N, Y., 73.

Claim for damages from negligence of state officers in charge
of Erie Canal, held barred by lapse of time under the constitu-
tion.

CUMING v. BROOKLYN Ciry R. R. Co. 109 N. Y., 95.

In an action by a parent for loss of services of a child injured through
another’s negligence, the estimated expense of a surgical operation be-
lieved by an expert to be necessary is not admissible as an item of
damage.

Plft’s son, injured through deft’s negligence ; plft the mother,
father dead, action for loss of service ; evidence that surgical
expenses would have to beincurred during the child’s minority,
and that expense of operation would be $300, admitted. Injury
to son, leg amputated.

(Verd. $5,500.—Aff. at Gen. T.—Rev. new tri. ord.)
1888. ] CasEs CONDENSED. 337

 

Hunt v. Toe Mayor &c. or N.Y. 109 N. Y., 134.

A municipality is not answerable to a passer-by for the damages sustained
by him from an explosion in pipes under its streets, not laid by itself, and
where it does not appear that on giving its permit to lay them it had
omitted to prescribe proper regulations for, or to exercise due super-
vision over, such laying.

Piff, passer-by, injured by explosion at manhole in deft’s
street, manhole of steam heating co., explosion appeared to be.
of gas accumulated in it; so far as appeared from plff’s evi-
dence all the precautions which seemed necessary were taken
to make the work of laying steam heating pipes under due
permit in the street safe.

(Nonsuit.—Aff. at Gen. T.—Aff. )

Kinny v. West. Un. TEL. Co. 109 N. Y., 231.

Plff sent a telegram, not delivered, he damaged ; written by
him on one of deft’s blanks, with which he was familiar, had
often read the words at the bottom “ read the notice and agree-
ment at the top”; that contained a clause exempting deft
from liability for non-delivery of any unrepeated message,
whether happening by deft’s negligence or otherwise; the blank
was mutilated when offered in evidence, jury found it was so
when used, but there was no evidence of that; there was enough
to show that deft was not responsible for an unrepeated mes-
sage. Held, deft not liable, Telegraph Co’s not common car-
riers, this a reasonable regulation for transaction of business.

Hiny v. NintH Ave. R. R. Co. 109 N. Y., 239.

When the shaft of a vehicle pierces through the front panel of a rapidly-
driven street-car, the presumption is that the car driver was negligent in
the management of the car.

Piff, passenger, riding in deft’s street car, driven at unusual
speed, was struck by pole or shaft of a truck which crashed
through the front panels of the car.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)
338 Cases ConDENSED. (1888.

 

Connins v. N. Y. C. & H. R. RB. B. Co. 109 N. ¥., 243.

Where the contention is whether property was set on fire by sparks from
the defendant’s locomotive or from that of another company which passed
by about the same time, evidence by a person familiar with the two en-
gines as to which was in the habit of emitting the most sparks is admissible.

Evidence that six months after a fire, produced by sparks from one of two
locomotives, sparks of large size were emitted from one of them is inad-
missible without proof that it was in the same condition.

Piff’s property set on fire by sparks from locomotive; deft’s
road and Erie road ran parallel at this point ; deft’s locomotive
passed just before the fire, also one on Erie track; plff
claimed sparks came from deft’s engine, deft claimed came
from Erie engine; evidence as to comparative excellence
of spark arresters on both roads admitted; evidence by
deft’s engineer that he had seen Erie engine emit a stream of
sparks admitted; evidence by same engineer that Erie engine
did throw out more sparks and started more fires than his own,
according to his own observations excluded ; evidence that six
months after fire in question same engine of deft emitted large
sparks admitted without proof that its condition was sameas at
time of fire.

(Verd. for plff.—Aff. at Gen. T.—Rev. new tri. ord.)

Breen v. NN. Y.C. & H.R. BR. R. Co. 109 N. Y., 297.

Where a passenger ina railroad car, sitting by an open window, is struck by
something from a passing freight train, and it appears that one of the cars
of the freight train was out of repair in a way that might have caused the
injury, the inference of negligence on the part of the company is
permissible.

Plff, passenger, window of car open, elbowrested on window
sill, but within |the car, as freight train passed something on it
struck arm, smashed it; as freight train passed a station just
before, a car door on that side of it was seen to be swinging
from the car, up and down, quickly. Injury, elbow broken.

(Verd. $6,000.—Aff. at Gen. T.—Aff.)

 

 

TURNER (Julia) v, Crry or NEwpurGH. 109 N. Y., 301.

A municipality must see that a crosswalk, relaid after removal for an exca-
vation, is properly relaid.
1888. } Cases ConDENSED. 339

The fact that a municipality has not accepted a contractor’s work ona street,
is no ground of defence to an action for damages sustained by his leaving:

it in an unsafe condition, where it has allowed the street to be opened for.
travel.

Or,

Opening a street for travel is equivalent to accepting a contractor’s work,
so far as obligation to the public to keep the street safe for travel is con-
cerned,

Where an unsafe condition of a street has existed for a week, itis a question
of fact whether it is sufficient to charge the city with knowledge of it.

A physician who has examined an injured person may be asked his opinion
as to the cause of the injury.

A physician who has examined an injured person may be asked his opinion
as to the permanence of the injury.

Plff fell on deft’s crosswalk, fall due to loose stone improp-
erly relaid after excavation by contractor for a sewer, his work
had not been accepted; stone loose for a week, crosswalk open
for travel ; physicians allowed after examination of plff to say
whether in their opinion plff's physical condition resulted from
a fall, also as to permanence. Injury, two ribs broken.

(Verd. $3,500.—Aff. at Gen. T.—Aff.)

WEBBER v. HERKIMER &O. STREET R. R. Co. 109 N.Y., 311.

The fact that a complaint in setting forth a cause of action to recover dam-
ages for negligence pleads it as arising ex contractu does not make the

case one in which to apply the six year limitation as to actions on
contract.

Or,
In actions to recover damages suffered through negligence, the three years
limitation in § 383 of the Code applies without regard to the fact that the

complaint is on contract.

Complaint to recover damages for injuries received by plff,
passenger on deft’s car, injured through negligence pleaded ex
contractu, breach of contract laid in 1879, action begun 1883;
answer pleaded statute of lim. under subdiv. 5 of § 383 of Code
(3 years).

(Verd. directed for deft.—Aff. at Gen. T.—Aff.)

»

WEBBER v. PIPER. 109 N. Y., 496.

A master who furnishes tools to take the place of other tools which become
dangerous through use, is not bound to see that the old tool, when it
becomes worn out, is replaced by another.
340: Cases CoNnDENSED. [1888.

 

A saw is not a defective tool merely because it is dull.

Or,

A master who furnishes his servants with spare circular saws to take the
place of other saws when they become dull, is not bound to see that the
old saws are replaced by the new ones.

PIff, employe, injured while using dull circular saw; deft had
supplied spare saws to be used while dull ones being sharpened,
put them in charge of servant who had charge of machinery
and its repair, his duty to reset and sharpen saws when neces-
sary; latter notified by plff saw dull, was asked for another, re-
plied no time to sharpen then, go on with work, would be
attended to at noon; plff went on, before noon accident

occurred.
(Nonsuit.—Aff. at Gen. T.—Aff.)

Powe. v. N. Y, C. & H. R. R. R. Co. 109 N. Y., 613.

It is negligent in a traveller, on nearing at a fast gait, ina driving snow
storm, a railroad crossing where he knows trains frequently pass, to
approach and go over it without slackening his pace.

PIff injured by train at crossing, no signals given, he was travel-
ling at rate of ten miles, driving snow storm, knew that trains
frequently passed that place, approached and crossed without
slackening his horse’s speed.

(Nonsuit.—Aff. at Gen. T.—Aff.)

New JERSEY St. Co. v. Tae Mayor &c, or N. Y.
109 N. Y., 621,

Whether it is negligence to moor heavy boats to the spiles of a pier is a4
question of fact.

Piff’s pier in N. Y. City injured through scows and boats of
deft’s street cleaning dept being moored to its spiles ;
court refused to charge that it was an improper use of the pier
to moor heavy boats to its spiles and deft liable for any injury
thereby.

(Verd. for deft.—Aff. at Gen. T.—Aff.)
1888. } Cases CONDENSED. “341

 

 

TURNER (Geo. D.) v. Crry or NewBurGH. 109 N. Y., 637.

Suit by husband for loss of services ; for injuries to wife, see
her suit, 109 N. Y., 301.
(Verd. $1,000.—Aff. at Gen. T.—Aff.)

HERRINGTON v. VILLAGE OF LANSINGBURGH.
110 N. Y., 145.

Damages resulting from the noise of an explosion, from a negligent blast in
“an excavation by a contractor in a public street under a contract witha
municipality whereby the contractor is to pay for all damages done by
the blasting, are not recoverable from the municipality.

Plff injured while attempting to control his horses frightened
by blasting in deft’s street, excavation for sewer by public con-
tractor, contract provided that all damages from blasting should
be paid by contractor; if negligence caused injury in question, it
was that of the contractor.

(Nonsuit.—Aff. at Gen. T.—Aff.)

TARBELL v, RoYAL Ex. Sarerine Co. 110 N.Y., 170.

Consignees of tea shipped by deft’s steamer failed for three
days to remove it from the wharf, during which time part was
removed without their authority ; deft’s clerk against its orders
sometimes allowed goods to be taken by customers without
receipting for them, when he knew them, had taken no receipts
for the missing portion. He/d, deft not liable as carrier, but
liable as warehouseman for negligence in care of the goods.

BIDELMAN AS SUPERVISOR v. THE State. 110 N. Y., 232.

The state is liable to a town, under chap. 321 of the Laws of 1870, for the
expenses of repairing a highway bridge injured by a flood from a break
in its canal due to the negligence of agents of the state.
342 Cases CONDENSED. (1888,

 

IN RE CORNELL, ASSIGNEE. 110 N. Y., 351.

The negligent omission of an assignee for the benefit of creditors to assail a
fraudulent transfer of property, made by the assignor prior to the assign-
ment, is a breach of trust which can be reached upon his accounting.

The measure of damages against a negligent assignee for benefit of creditors,
where he has failed to bring suits he ought to have brought, is not neces-
sarily the amount he could have recovered, but the amount of the actual.
loss sustained. :

BIRKETT v. KNICKERBOCKER IcE Co. 110 N. Y., 504.

Whether it is negligence for parents to allow a child of four years to play
unattended on a sidewalk, when it has noother place for exercise and they
have no one to take charge of it, is a question of fact.

In estimating the compensation to be made under the Death Act to parents.
as the next of kin ofa child, a jury is not bound to confine its considera-
tion to the child’s minority.

Or,

In an action to recover damages for the negligent killing of a young child,
the next of kin of whom are its parents, defendant is not entitled to a
ruling that the plaintiff is only entitled to nominal damages.

Plff's intestate, girl of 41% years fatally injured by deft’s ice
wagon carelessly driven against her in city street; lived in
populous neighborhood, no inclosed place for children, allowed
by parents to go on sidewalk to play ; instructed by them not to
cross street, disobeyed ; court refused to rule plff only entitled
to nominal damages.

(Verd. $1,500.—Aff. at Gen. T.—Aff.)

Hunpson v. Ocean 8.8. Co. or 8. 110 N. Y., 625.

A servant takes the risk that proper appliances, provided by the master,
will be properly applied or used by his servants.

Piff, employe, thrown into water by fall of skid, engaged with
others in putting freight on deft’s steamship by truck wheeled
from dock over skid ; skid in good order, slipped owing to in-
attention of those at work to changing its fastenings as tide fell,
or to swell caused by some passing vessel.

(Nonsuit.—Aff. at Gen. T.—Aff.)
1888. } Cases ConDENSED. 343

Waltsé v. N.Y. C. & H.R. BR. R. Co. 110 N. Y., 635.
(S.C. 2 Silv., 85.)

Action for damages resulting from negligent delay in delivery
of a boiler.

 

(No reason appears from the report in ‘‘Silvernail’’ why heshould not have
rested content with its burial as a mem. case in the regular series. It may
not be amiss to take this opportunity to say that out of some fifty
*“memoranda”’ cases of negligence in the regular series, which have been
reprinted years after in ‘‘ Silvernail,” for the reason as stated on his title
page, ‘‘not reported in the official series’’, there are only three or four
which are given at any greater length than in the official series. The others
have simply been transferred bodily to ‘‘Silvernail” exactly as they appear in
the regular series, with the exception of the head notes, and insome instances
even the head notes themselves have been appropriated in defiance of the

copyright, )

THomMpPsoNn v. N. Y.C. & H. R.R.R. Co. 110 N.Y., 636.

A person, who on approaching a railroad crossing has looked both ways, and
whose attention at the last moment is diverted, is not guilty of negligence,
if at the moment of crossing he fails to look again.

Sounding the statutory signals on a train approaching a crossing does not
give the railroad company the right to run its trains at crossings in popul-
ous neighborhoods at whatever rate of speed it pleases.

Or,

Notwithstanding the fact that the statutory signals to be given by trains
approaching crossings are in fact given, arailroad company must not run
its trains at improper rates of speed in thickly populated districts.

Piff’s horses killed by deft’s train at crossing, proper signals
given, running at great rate of speed, thickly populated
surburban district, driver looked both ways until at the moment
before crossing attention diverted to boy just in front of his

horses.
(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

BLAIsER v. N. Y., LAKE Erie & W. BR. RB. Co.
110 N. Y., 638.
Peculiar situations of fact need special rules of law.
PIff injured at deft’s crossing.
(Nonsuit,—Aff. at Gen. T.—Rev. new tri. ord.)

Note.—The crossing in question was at Buffalo. So many are the
accidents which occur ‘there because of the presence of numerous and
S44 Caszs CONDENSED. [1888,

 

bewildering parallel tracks of various roads, and the absence of bridges
over them, so similar are the facts in each, giving rise to the question
whether an unfortunate citizen, who has to get from one part of the city to
another, and wishes to do so without going by way of the country, used due
care in watching for the kaleidoscopic trains dashing up and down with
dizzying rapidity, that it will not be profitable to give the facts of this case
on which the court held that this plaintiff was not in law negligent,

IE the Court of Appeals were to lay down a general rule that so long as
the railroad companies omit to bridge these dangerous labyrinths, they must
respond in damages to every citizen who attempts to get over, without
regard to whether he was negligent or not, such a rule could be well
defended on the grounds of public policy. The rule which bars a negli-
gent plaintiff from a recovery for the damages resulting from another’s
negligence is a rule which rests for its defence to some extent on the ques-
tion ofexpediency. In such a state of affairs as exists at Buffalo, it might
be expedient to make an exception when it would save many a life and limb,

The head note is not to be taken asa statement of the rule of the decision,
but merely as a corollary from the reversal.

Davis v. N. Y., Lake Erie & W.R.R.Co. 110N. Y., 646.
(S. C. 15, Civ. Pro. Rep. 62.)

Amending a complaint to recover damages for negligence sustained by a
servant from an unsafe locomotive, by adding an allegation that the fuel
for it was unfit, is not changing the cause of action,

Or,

An amendment of a complaint in an action to recover damages for negli.
gence, adding additional specifications of negligence in producing the
injury complained of, does not change the cause of action.

Plff engineer, complaint alleged injury resulting from deft's
negligence in furnishing him with a defective locomotive,
whereby explosion of gas occurred in fire box ; motion made at
Spec. T. to amend complaint by inserting allegation that coal
furnished by deft for use in engine unfit.

(Motion granted.—Aff. at Gen. T.—Dismissed. )

 

STRINGHAM v. Hinton. 111 N. Y., 188.
(Ist Appeal. Sub om. Strincuam v. Stewart, 100 N. Y., 516.)

When an appliance or machine not obviously dangerous has been in daily
use for a long time, and has uniformly proved adequate, safe and con-

venient, its use may be continued without the imputation of imprudence
or carelessness. c
1888. ] Cases CoNnDENSED. 345

 

Where an injury happens to a servant through the carelessness of a co-ser-
vant in managing an elevator, the fact that it has no safety clutches which,
if on it, would have arrested its fall and prevented the injury, does not
operate to make the master liable.

Or,

A master is not bound to put safety clutches on his freight elevators.

Additional facts ; concession on first trial, elevator not proper
one for carriage of persons not repeated ; deft showed it was
of the kind in common use in hotels, breweries and public build-
ings for such purposes, had been in daily use for several years,
proved safe. It had no safety clutch to arrest its descent in
case rope broke; the accident occurred through the engineer's
mistake or carelessness in starting it. Original deft died after
verdict. Injury, thigh and both legs broken, contusions, chest
and arm bruised.

(Verd. $42,500.--Aff. at Gen. T.—Rev. new. tri. ord.)

 

Hoac v. N. Y.C.& H.R. R.R. Co. 111 N. Y., 199.

Rule in Robinson v. N. Y. Cent. R. R. Co. 66 N. Y., 11, as to imputed
negligence, extended so as to include husband and wife.

Whether a woman, who is being driven over a railroad crossing by her hus-
band, was negligent in allowing herself to be driven in front of an
approaching train, in plain sight, is a question of fact.

In the absence of evidence as to whether a person protested against being
driven over a crossing in front of an approaching train, itis for the jury
to say whether or not a protest was made, and if they find it was not, then
to say whether such person was under the circumstances negligent in re-
maining silent.

Plff’s intestate, killed at deft’s crossing, was being driven by
her husband, passenger train, gave no signals, could have been
seen, husband had stopped before crossing freight track seven
feet; nothing proved as to manner of accident except horse seen
jumping to getacross, did escape, husband as well as wife killed.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

Nore.—This case may well be thought to have put an end to the absurd
rule of the common law as to imputed negligence. If the negligence of the
driver of a vehicle is not to be imputed to his wife, who is riding with
him, why should it ever be imputed to anybody else, except when the driver
is under such person’s orders ?
346 Cases CONDENSED. [1888.

 

Morris v, Brown. 111 N. Y., 318.

A contractor, obligated to provide facilities for an inspection of his work by
an inspector for the other party to the contract, is not liable for the
damages resulting to the inspector from the negligence of his servant in
the management of a car, upon whicli the inspector rides to the scene
of inspection, which car was not one of the facilities the contractor was
bound to or did afford for the purposes of the inspection.

Plff's intestate, inspector under Aqueduct Commissioners of
tunnel being excavated by defts under contract with the Com'rs,
killed while riding into tunnel to inspect it; defts agreed to
afford all facilities for inspection; not necessary toride in, usual
way was to walk, grade descended, cars to carry debris out ran
on track, descending by gravitation, descent regulated by cable
and brake attached to cable drum ; deceased had ridden before
on this trip, deft’s servant omitted to attach cable to car,
descent not controlled, deceased thrown off; his riding was
without deft’s knowledge.

(Verd. $3,300.—Aff. at Gen. T.—Rev. new tri. ord.)

PALMER v. PENNSYLVANIA Oo. 111 N. Y., 488.

A railroad company is not bound to make immediate and continuous re-
movals of snow and ice, gathering to slight extent on the platforms of its
cars while in transit,

PIff passenger, slipped on platform of deft’s car, leg broken,
had ridden in the car all night, sleet gathered on platform dur-
ing night, to slight extent, not removed at time of accident, 5
a.m. Injury, leg broken.

(Verd. $1,215.—Aff. at Gen. T.—Rev. new tri. ord. )

 

BaLLov v. STATE OF NEw YorK. 111 N. Y., 496.

The state owes to abutting owners the same duty of repair that a city does,
when it undertakes to maintain for canal uses a sewer in a public street.

Or,

If the state undertakes to maintain for canal uses a sewer in a city street,
into which abutting owners are allowed to drain their property, it must
keep the sewer in repair,

Plff’s property injured by set-back from state sewer ; the state
in order to give outlet for water from a weigh-lock in its canal
1888-89. } Cases CONDENSED. 347

 

had taken up a city sewer in a street and replaced it by its own
sewer, in which, by arrangement with the state’s agents, plain-
tiffs drains emptied as theretofore into city sewer; the state
failed to keep this sewer in repair.

(Award agst claimant.—Rev. new hearing ord.)

DENNERLEIN v. DENNERLEFIN. 111 N. Y., 518.

Where real estate is sold at auction under a decree in partition, which de-
scribes it by metes and bounds, it is negligent for a purchaser to rely,
for the number of acres it contains, upon the statement in a hand-bill
which omits the boundary lines, and merely describes the tract as the
farm of such an one, containing so many acres, when he can obtain full
and accurate information as to the real number upon proper inquiry.

APPEL v. BUFFALO, N. Y. & Parva. R. R. Co.
111 N. Y., 550.
The danger of catching one’s foot in a frog is an obvious risk for a switch-
man.

Plff's intestate, switchman in deft’s yard, uncoupling cars,
caught foot in frog, run over, killed ; if frog had been ‘‘ blocked ”
(by inserting wooden blocks between the converging rails con-
stituting the frog) foot would not have been caught; deft did
not block its frogs, not shown that it was usual on railroads to
do so.

(Verd. $4,590.90. —Aff. at Gen. T.—Rev. new tri. ord.)

HEANEY v. LonG Isuanp R. KR. Co. 112 N. Y., 122.

To cross arailroad -ack in a cloud of smoke is negligence.

The fact that a place where the public cross a railroad track laid along a
street and fenced in is enveloped in smoke, imposes no duty upon the
company to give warning of an approaching train.

Plffs intestate, struck by deft’s train running on track laid
along city street ; deft authorized by statute to operate ‘its road
in such street subject to such regulations as common council
might prescribe; no violation of regulations shown ; tracks
fenced in with openings at intervals; intestate crossed at one
of these in a cloud of smoke left by a train just passed, struck
348 Cases CONDENSED. {1889.

 

by train going other way; no signals given on avproaching
crossing, none required by regulations.
(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

 

Donanvus v. STATE OF NEw York. 112 N. Y., 142.

The fact that the state has allowed the public for a number of years to use

as a highway a surface of earth covering timbers and planks over a canal

feeder, casts no duty on it to maintain it in a safe condition for such use.

Claimant fell into feeder of canal in a city, feeder covered
with timbers and planks, earth to depth of several feet laid on
top, used by public twenty years as a street, never laid out as
such, timbers rotted, gave way with claimant.

(No award.—Aff. )

GALVIN v. THE Mayor &c. or N.Y. 112 N.Y., 223.
Where one person is injured through the negligent act of another, the fact

that the negligence of a third, engaged with the first in 2 common under-

taking, contributed to the injury, does not exempt the second from the
consequences of his own negligence.

Or, :

Where two persons are engaged as fellow-servants of a common master in
carrying out his contract with another person, and one of them is injured
through the concurring negligence of his fellow-servant and of such
other person, the negligence of such fellow-servant does not exempt the
other person from the consequences of his own negligence.

Evidence of a custom which would call a person rightfully to a spot where
he is injured and where he had no right to be but for the custom, is
admissible to account for and excuse his being there.

Where a plaintiff's evidence does not show affirmatively a want of care on
the part of an injured person, and is quite consistent with due care, it is
error to nonsuit.

Plff’s intestate, killed by fall of deft’s grating of hatchway,
hatchway in sidewalk at court house, coal delivered through it,
grating thrown back to allow dumping of coal, dangerous posi-
tion, liable to inflict injury, unless fastened back by hook or
some contrivance, same inadequate ; deceased coal driver, de-
livering coal for city contractor, grating lifted up to allow driver
ahead of him to dump coal, deceased was descending through
hatchway when grating fell on him; evidence that he had to
go into basement to get receipt for load excluded; nothing else
to show that he was rightfully where he was when hit.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

 
1889. j Cases CONDENSED. 349

 

Pater v. N.Y. C. & H.R.R. RB. Co. 112 N. Y., 234.

When gates at a railroad crossing, erected under Laws of 1884, chap. 439;
are open, it is so far an assurance to the traveler that no trains are
approaching as to lessen the necessity on his part of vigilance to discover
for himself an approaching train.

Piff’s intestate, run over at deft’s crossing by a car engine
(locomotive and car combined) carrying its superintendent, en-
gineer and fireman at the rear, superintendent in front directing
the engineer by means of a signal when to make the statutory
signals on approaching crossings, engineer not able to see
ahead except by leaning out of side window; at crossing in
question deft had erected gates (see Laws 1884, chap. 439, § 3)
gates open, flagman absent; statutory signals not given ;
appearance of engine car such that it'could not at first sight be
told which way it was designed to go.

(Verd. $1,819.21.—Aff. at Gen. T.—Aff.)

Ropinson v. OCEANIC St. Nav. Co. “112 N. Y., 315.

An aclion to recover damages under the Death Act is an action in tort.

Since the enactment of § 1780 of the Code of Civil Procedure, our courts
have no jurisdiction of an action by a non-resident against a foreign cor-
poration to recover damages resulting from negligence, where the cause
of action sounds in tort and arose without the State.

Plffs intestate, passenger, died from injuries received from
a negligent collision between two of deft’s ships within the
limits of Great Britain ; deceased was non-resident of this State ;
plffalso non-resident; Lord Campbell’s act in England similar to
our Death Act.

(Order entered after answer vacating summons and dismissing
complaint for want of jurisdiction under § 1780 of Code—Rev.
at Gen, T.—Rev. order aff.) ‘

Notr.—As to what power the Legislature had to deprive the Supreme
Court of its jurisdiction over such acase, admitted by the opinion in above
suit to have once existed —see page 322 —nothing is said. This action was
begun in the Superior Court. But as the opinion makes no distinction be-
tween actions 1n the Supreme and other courts, the rule is worded as above,
although, strictly speaking, it is odéter dictum as to the Supreme Court.

And see Flynn v. Cent. R. R. of N. J., 142 N. Y., 439.
350 Cases CoNDENSED. (1889.

 

STRINGHAM v. STEWART. 22 Abb., N.C,, 281.

Section 764 of the Code, providing that an action shall not abate after
verdict, does not apply where the judgment is reversed.

(Deft’s name should be Hilton.) .

Motion to correct remittitur which granted new trial (decision
so granting reported sub nom. Stringham v. Hilton, 111 N. Y.,
188), by striking out order for new trial, original defendant
having died pending the appeal. Granted.

HUNTER v. COOPERSTOWN & Susq. VAuL. R. R. Co.
112 N. Y., 371.

Where a train is moving slowly past a station at which it should stop, the
notification of its conductur to a passenger to get on if he is going, does
not acquit the passenger of negligence in endeavoring to get on, in the
absence of any impelling reason other than one of slight inconvenience
in having to go by a later train.

Piff's intestate, passenger, killed while boarding moving train
at station, train moving at from 4 to 6 miles an hour, as it came
up to station conduetor said tojump onif going, platform of pas-
senger station joined on to platform of freight depot, latter plat-
form 2 or 3 ft. higher than other, connected by steps ; deceased
standing 3 or 4 ft. off, started to jump on, in some way caught
against end of freight platform.

(Verd. $3,500.—Aff. at Gen. T.—Rev. new tri. ord.)

Note.—There seems to be a difference between getting on and getting
offa train, which moves slowly past a station without stopping. (See Filer

case, 49 N. Y., 47.) The proximity of the freight platform in the Hunter
case may have made the difference, however.

KELLY v. Mannatran R. Oo. 112 N. Y., 443.

The omission of a railway company to clear the approaches to the stations

early in the morning from sleet gathered during the night, is not negli-
gence.

Piff’s intestate, passenger, fell on deft’s stairway leading from
station to street, coated with sleet during night, not removed at
time of accident, between 5 and 6 A. M.; died from injuries.

(Verd. $2,500.—Aff, at Gen. T.—Rev. new tri. ord.)
1889. ] Cases ConDENSED. 351
Maxson v, DEL, Lack. & W.R.R.Co. 112 N. Y., 559.

Actions for loss of service through negligence must be brought within three
years from the time the cause of action accrued.

Plff’s wife injured through deft’s negligence, suit for loss of
service, not brought within 3 years from time cause of action
accrued, this pleaded by deft, demurrer by plff.

(Dem. sustained.—Aff. at Gen. T.-Rev. dem, overrul.)

Hossgy v. CoGer. 112 N. Y., 614.

Where the master has employed a sufficient number of servants for an
undertaking, and placed them under a superintendent’s orders, the negli-
gence of the latter in detailing an insufficient number of men to do a par-
ticular thing in the general undertaking is the negligence of a co-servant
and not that of the master.

Or,

When the master has employed enough men for his work and put them
under a superintendent’s orders, he is not bound to see that the superin-
tendent details a sufficient number of them for particular parts of the work.

Plff's intestate, original plff, employe, while in a steamer’s
hold, hatch fell on him; deft repairing the steamer, employed
superintendent to directrepairs, hatchway being removed under
his orders, heavy, did not order enough of the men there to lay
hold of it, slipped from grasp. Injury, leg broken.

(Verd. $2,000.—Aff. at Gen. T.—Rev. new tri. ord.)

SULLIVAN v. Tioga R. R. Co. 112 N. Y., 6438.

When a railroad company lets to another company the use, conjointly with
itself, of its yard with attendance by its servants, such servants and the
servants of the tenant company are not fellow-servants.

It 1s not necessarily negligent for a person to refuse to have his injured leg
amputated, even though it would improve his chance of life.

PIff's intestate, run over by deft’s engine through negligence
of engineer, in the yard of another company, deft leasing right
to use the yard in common with other co. ; intestate in employ
of other co. was removing ashes from pit in track ; amputation
of leg advised by physician, intestate refused, died from injury;
physician testified amputation would have improved chances of
life, but there had been cases where amputations, though
advised, had -been refused and limb and life saved.

(Verd. $2,600.—Aff. at Gen. T.—Aff.)
352 Cases CoNDENSED. (1889.

 

Byrwus v. N.Y., Lake Erte & W.R.R. Co. 113 N-Y., 251,

A railroad company which has provided by adequate rules for the perform:
ance of its duty to see that its cars are properly loaded for transit, is not
answerable to one servant for the consequences of another servant’s
failure to obey the rule. :

A motion to dismiss a complaint, on the ground that no negligence of the
defendant is proved, is specific enough to raise any question as to negli-
gence on his part. »

Plff's intestate, brakeman, coupling loaded freight car to
freight train, engine on main track pushed car from switch to
main track by means of stake; deceased got on car to brake it
up, lumber improperly loaded by shipper; could not get at
brake, car bumped into train so violently as to displace lumber,
caught by it, fatally injured ; duty of station master to inspect
car when loaded, proper inspection would have disclosed im-
properloading. (The defendant’s motion to dismiss was simply
on the ground that no negligence of the master was proved.) ©

(Verd. $5,000.—Aff..at Gen. T.—Rev. new tri. ord.)

Parsons v. N,Y.C. & H.R. R.R.Co. 113 N. Y., 355.

It is negligent to run a train pasta station at a rapid rate when a passenger
train has stopped to discharge and receive passengers.

The fact that at the moment of passing a station the engineer of a locomo-
tive cannot control it, does not excuse the company from the consequences
of its fast running at such a place.

When a train stops ata station, a passenger, going beyond it, may alight
from it if he chooses and cross any adjacent track in reliance on the pre-
sumption that a train will not approach on it at a rapid rate of speed.

PIff’s testator, passenger, got off from train at a station to see
some one, intended to return to train, crossed next track on side
away from station, in station yard, struck by freight engine
backing through, 25 miles an hour, in violation of deft’s rules,
engine had been hidden by a curve and a bridge; claimed by
deft, its lever had been reversed so as to slow down, but had
slipped back, struck-engineer, disabled him from holding it in
position ; evidence given to show that such an accident could
not occur except through a defective appliance,

(Verd. $2,5300.—Aff. at Gen. T.—Aff.)
1889. ] Cases CoNDENSED. 353

 

Bonp v. SMitH. 113 N. Y , 378.

An excavation at the rear of a store, bordering on an alley not a thorough-
fare, bounded at each end by buildings extending to the line of the alley
and divided from the alley by a wall seven inches high and two feet wide,
is notso imminently dangerous as to be a nuisance.

Freedom from contributory negligence is not shown, when a plaintiff simply
shows that a deceased person knowing the locality fell at night into an
area bordering on an alley, the alley not being a thoroughfare, and the
area being bounded at its ends by high*walls, and on its sides along the
alley by a wall seven inches high and two feet wide.

Plff's intestate, night watchman, fell into area between alley
and rear of store owned by one deft rented by the others, alley
no thoroughfare, closed at one end, area entirely on deft’s
premises, 3 feet wide, extended full width of lot, bounded at
each end by walls of adjacent stores and on side along the alley
by a wall with coping 2 feet wide and 7 inches above the alley;
deceased’s duty to watch the adjacent stores on same side of
alley, had been doing so on various nights for 3 weeks, found
lying in the area, no evidence as to how he came to fall in.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

‘

CoHEN v. THE Mayor &c. oF N.Y. IBN. Y., 532.

A municipality must be regarded as maintaining a nuisance, when, in viola-
tion of the statute against obstructions in its streets, it grants for com-
pensation a permit to store a private wagon in a street.

Or,

A municipality, which grants for compensation a permit to store a private
wagon in a public street in violation of the statute forbidding obstructions
of itsstreets, maintains a nuisance,

Pliff's intestate, passing along deft’s sidewalk, thills of wagon
fell on him, injuries resulted in death ; wagon stored in street
under permit from deft for compensation, no authority existed
in deft to grant such permit, obstruction of its street forbidden

by statute.
(Verd. directed for deft—Aff. at Gen. T.—Rev. new ir. ord.)

BUCKLEY v. GuTTA PERCHA & R. Mre.Co. 113 N. Y., 540.

Itis not negligent for a master to put a boy at work at a machine having
cogs.
354 Casts Conpansen, [1844

 

A boy eet to de something ona machine, which is not dangerous in ited, wor
beyond his powers, takes the risk of slipping while doing the work,

PU, employee, boy of 12, fixing screw to fasten cylinder to
machine having come, in motion, nota dangerons job, slipped,
threw out hand to save himself, it ot into coys, crushed; piff
not warned io keep bis hands out of the cops, Tujury, fogcer
amputated, finger lacerated,

(Verd, $1,200.--Affh. at Gen, T—Kev. new tri, ord.)

Conan ¢. Din & Hop. Gas. Go, ION. Y., 667,

“Shes fate that itis Sunday, and trains seldom sun, and that one's bere: Ie
youny and Will net stand, and thats wagon can not easily We turned ats
particular spot, do not excuse a traveller for bearing down on a cromshng
With widackened speed and without looking.

Vis intestate strack by enyine at crossing, nu signals given,
he was driving, did not slacken his speed, did not Jook, bad be
looked could have seen engine, Sunday, traing seldorn ray that
day, if he had seen it could not without difhculty have turned
his waren, horse youny would not have stood,

(Sonsuit Kev, at Gen. J. new tri. ord. Kev. nonenit affy

 

CULLEN t= NATIONAL Sines Myra ii. Co. WANLY., 44.

Sis negligent for a bey to place his fingers ander a die in diwbedience of
his master’s rule duly made known, and in the abyunce of any reason
theretor other than a desire to vet through an allotted task more quickly.

PIf, csnployee, boy of 17, tending press, fingers crushed ly
fall of dis, die worked Uy trewlle, out of order, sometionns fell
without application of treadle; at moment die fell, pif trying
to push plate of fin from press with bis hand instead of stick,
stick provided by deft, rule posted on press, forbidding esnployes
to put hands under press onder any crcoumetances, pif knew of
rile; ne reason to break rule other than desire to finish an
allotted task for the day by an early hour, Injury, te fingers
amputated, two fingers crippled.

(Verd, §1,.7%, Aff, at Gen, I —Rev. new tri, ord)
188i), } Casts ConDENSED. 355

OLuws +. BANK or N.Y. Nat. BK. Ass’n. 114.N. Y., 70.
(Ist Appeal. 89N. Y., 418.)
(4d * 106 * 398.)

Jury having found the act negligent as a question of fact un-
aler rule on former appeal, Court of Appeals held evidence
warranted the finding.

 

Watson ¢. Orry OF KINGSTON. 114.N. Y., 88.

In constructing a wall along the side of a street, which is cut along the side
ofa hill, a municipality is under no duty to an owner of property on the
lower side to 30 construct the wall that water, which before would have
flowed on to such property, will no longer do so,

Tf the circumstances attending the building by « municipality of a wall are
such that it is not bound to build a wall of masonry, its building of a dry
wall, which allows water to flow through, is not evidence of a negligent
construction of the wall.

CONNOLLY &. KNICKERBOCKER Ion Co. 114 N.Y., 104.

A person on the platform of a street-car is not bound to be on the lookout
for collisions with other vehicles.

Violation by a child of the statute of 1880, chap. 585, prohibiting children,
who are not passengers, from riding on strect-car platforms, dues not
necessarily establish negligence on its part, where if is on the platform by
invitation of the conductor express or implied.

‘The defense that a person, injured in a collision between a street-car and a
wagon, was riding on the car platform, is not available to the owner of
the wagon.

PIA, boy of 7, injured in collision between street-car and deft’s
wagon, had turned switch for strect-car, was standing on its
platform waiting for promised penny from conductor, wagon,
rapidly driven from opposite direction, was not turned out
Sufliciently to allow end of car to clear it as it swung on the
switch, plff did not see wagon coming, nor look; by Laws of
1880, chap. 585, it is provided that no minor child not a
passenger shall be allowed on car platforms. Injury, leg
broken,

(Verd. $2,000,—Aff. at Gen. T,—Aff.)
356 Cases CONDENSED. {1889.

 

McRIcKARD v. FurintT. 114 N, Y., 222.

(Ist Appeal. 97N. Y. 641.)

It is not an error to charge that failure to ‘comply with a statutory require.
ment is prima facie evidence of negligence, where the circumstances of
the case are submitted to the jury so as to leave to them the question as
one of fact.

Owners of stores, which apparently have several entrances from the street,
must indicate in some appropriate way by which entrance outsiders should
come in, if any one of the apparent entrances is not really intended as
such.

It is not necessarily negligent for a person lawfully entering a building by
an entrance apparently a proper one, to fail to discover that it is really
an entrance to an elevator shaft.

Or,

Where a building apparently has several entrances from the street, a person
on lawful business has the right to assume that any one of them is a
proper entrance.

Piff entered deft’s factory in New York City on business
through what he thought was main entrance, several doors
from the street, appearances such that the place he entered might
easily be mistaken for an entrance door; fell down elevator-
shaft, did not see it, might have had he looked, not apprehending
any such thing, his glance was casual, not sufficient to take in
real situation, saw flooring ahead and walked on without stop-
ping ; Laws of 1874, chap. 547, provide that elevator-shaft in
said city shall be protected by railing and trap-doors on each
floor to be kept closed when elevator not in actual use ; elevator
in question not being used at the time; court charged that a
failure to comply with this law was prima facie evidence of
negligence, but charged it as an abstract proposition of law, and
not so as to treat the question of deft’s negligence as one of law.
Injury, back and legs injured.

(Verd. $2,000—Aff. at Gen. T.—Aff.)

NoTE.—The question as to plff’s contributory negligence, on which a
nonsuit had been granted which had been reversed on a former appeal,
was so referred to in the opinion on this appeal, as to make unnecessary
a mention of the former appeal in its regular order in this book. It was
published as a ‘‘mem. case,” and as there was nothing in the report to

indicate that it was a ‘negligence case,” it fell under the rule of exclusion
referred to in the preface. 7 :
1889. | Cases CONDENSED. 357

 

BouN v. HAVEMEYER. 114N. Y., 296.

A servant who is employed to work in a bin to keep an orifice at its bottom
clear so that its contents may run through, assumes the risk of injury from
a sudden subsidence of its contents, which he knows may happen at any
moment,

Piff, employee, clearing orifice in bottom of sugar bin, orifice
for sugar to run through, clogged, plff dug sugar away
with shovel, poling it down with pole, caught in sudden
subsidence of sugar, injured on being hauled out; bin long in
use, not out of repair, clogging of sugar usual thing, known to
piff, his duty to clear it in way he had done this time; plff made
requests to charge refused, not passed on by appellate court
because case ought not to have gone to jury at all.

(Verd. for deft.—aff. at Gen. T.—Aff.)

Tousry v. RoBerts. 114 N. Y., 312.

A jury may determine whether an owner of an apartment house should have
exercised such supervision over itas to prevent a young unauthorized boy
from acting so as to create the impression on tenants that he wasin fact a
servant of the owner.

A person is not bound to notice whether an elevator is at the floor of
entrance, where he is invited to enter it by the act ot the person in charge
of it.

PIff, tenant in deft’s apartment house, fell into elevator shaft,
street hallway not sufficiently lighted, door to shaft opened
from hallway; as plff was passing, a boy, brother of elevator
boy, who often ran the elevator but was not in deft’s employ,
threw open the door as an invitation to enter, she went through
without looking, fell to basement, elevator being in fact at an
upper story ; court charged that though the boy was not deft’s
servant yet it was a question for the jury, whether the defts
should not have exercised such supervision over the building
as to make it impossible for him to do acts from which the
tenants might have derived the impression that he was a ser-
vant. Injury, bruises on head and body, eye blackened, uterine
injuries and shock.

“(Verd. $2,500.—Aff. at Gen. T.—Aff).
358 Cases CONDENSED. [1889.

Francis v. NEw York STEAM Co. 114N. Y., 380.

Allowing one’s elbow to protrude beyond a street-car window is not, as to
one who erects an obstruction in a street, necessarily negligent.

Pliff, riding in street-car, arm broken by contact with structure
erected by deft to guard excavation in street, structure 3 inches
from car ; whether plff’s elbow outside car window or resting
within sill disputed ; court charged that its being outside would
not defeat recovery, unless it was negligent to let it be out;
refused to charge that if it was extended so that it came in
contact with the object, plff guilty of contributory negligence
and could not recover. Injury, arm broken. ,

(Verd. $500.—Aff. at Gen, T.—Aff.)

 

NEWALL v. BARTLETT. 114 N. Y., 399.

Plff, servant of steamship company owning steamship moored
at deft’s dock, carried trunk down gangway; while setting it
down on dock injured by fall of door of the dock warehouse,
insecurely fastened, it fell on being hit with astud; a member of
deft’s firm (since deceased) had been notified of insecurity of the
door. Injury, back and spine injured.

(Verd, $2,000.—Aff. at Gen. T.—Aff.)

Nothing new.

GUMB v. TWENTY-THIRD St. R.R.Co. 114N.Y.,, 411.

Proof of the amount of money that the injured person has had to pay to
another person to do his work is not admissible as an item of damage
unless specially averred. .

Proof of the amount of a physician’s bill is not admissible, without showing
its payment or the value of the services.

Plff injured through deft’s car being negligently driven against
wagon which he was driving ; under general allegation of dam-
age by reason of being prevented from going on with his.
business, he was allowed to prove payment to two men to.
work in his place; also how much his physician’s bill was.
without showing its payment. Injury, leg bruised and contused.

(Verd. $500.—Aff. at Gen. T,—Rev. new tri. ord).
1889. | Cases CoNnDENSED. 359

 

WIEDMER v. N.Y. ELEv.R.R.Co. 114 N.Y., 462.

A railroad company is under no obligation to the public to prevent minute
cinders from escaping from its locomotives, even though it runs them
in the public streets of a crowded city.

Or,

The escape of a minute cinder from a locomotive, running on an elevated
track in a street, is not in itself evidence of negligence on the part of its
owner.

PIff walking in street, eye injured by small cinder from loco-
motive on deft’'s elevated road in a crowded city.
(Verd. $2,000.—Aff. at Gen. T._Rev. new tri. ord.)

 

CoRBETT v. TWENTY-THIRD St. R’way Co. 114.N. Y., 579.

An order of the General Term, reversing a judgment ona nonsuit and
ordering a new trial is not a decision, which under § 764 of the Code oper-
ates to prevent the abatement of an action to recover damages for per-
sonal injury.

Action for personal injury, plff nonsuited, appealed, General
Term, granted new trial; deft appealed to Court of Appeals
from order ; plif died before last appeal heard ; motion made by
adm’r to revive suit. (Denied). ,

FREDENBURG v. NORTHERN CENT. R.R. Co. 114.N. Y., 582.

A servant newly employed, and unacquainted with the locality where he is
set to work at night, does not assume the risks thereof, which, however
obvious in the daytime, are to him unknown.

Or,

Whether a servant newly employed has used due diligence to make himself
acquainted with the obvious dangers of the employment is a question of
fact.

Piff, employe, arm crushed while coupling cars after being
weighed, injury due to coupling being done over cattle guard
too near the scales to be safe; night dark, plff recently employed,
not acquainted with the locality where set at work. Injury,

arm amputated.
(Verd. $4,000.—Aff. at Gen. T.—Aff)
360 CasEs CONDENSED, [1889.

 

CoLEMAN v. SEcoND AVE. R. BR. Co. 114 .N. Y., 609.

A passenger on a street car, who, without necessity, voluntarily leaves his
seat and puts himself in a position outside the car, in consequence of
which he receives an injury, is chargeable with contributory negligence.

Or,

A common carrier owes no duty to protect a passenger from the conse-
quences of his own action in voluntarily and without necessity swinging
his body beyond the side of its vehicle.

Plff, passenger, open car, got up to change seat, his reason
being the seat crowded, to do so passed along step at side of
car ; head hit against pillar of elevated railroad, 20 to 24 inches
from the car; request to charge that if jury believed that plff
left his seat unnecessarily and voluntarily and while car in mo-
tion and without requesting driver to stop, and when upon the
step of the car he swung himself outside of the line of the step
of the car and while so doing came in contact with the column
of the elevated railway, deft was entitled to a verdict, refused.
Injury to head and rib.

(Verd. $981.—Aff. at Gen. T.—Rev. new tri. ord.)

Harrv. N. ¥.C. & H.R. BR. BR. Co. 114.N. Y., 623.
(Opinion in full. 2 Silv. 260.)

A railroad company must keep the space between its tracks in its yards safe
for its car-couplers to work in, while coupling cars.

Piff, car-coupler, run over while coupling cars at night in
deft’s yard, gutter between tracks with depressions in it, of
which he did not know, caused him to slip. Injury, leg ampu-
tated. .

(Verd. $6,000,—Aff at Gen. T.—Aff. )

BRUEN vt. GILLET. 115 N. Y., 10.

A trustee who turns over to his co-trustee any of the trust funds, must not
neglect to see that his co-trustee properly disposes of them.

SPOONER v. Den., Lack. & W.R.R. Co. 115 N.Y,, 22.

Whether a railroad crossing, the edges of the planks of which are not bev-
eled, is negligently constructed is a question of fact.
1889. | Cases CONDENSED. 361

 

It is the duty of a locomotive engineer on seeing a person on the track and
not moving therefrom but signalling to him as the locomotive approaches,
to stop the train if he can, before it reaches such person.

A person who steps upon a railroad track to save human life is not a tres-
passer.

An action brought by a person as guardian of an infant under fourteen
years of age upon aright of action in favor of such infant is well brought.
PIff sued as guardian of an infant under fourteen, girl, warned

some other children to get off deft’s track, train in sight, they.

not heeding, she stepped on track to put them off, foot im-

prisoned between rail and plank of crossing, waved her arms

to the train, engineer saw her soon enough to have stopped,
proceeded, stopped when too late, engine ran over her foot ;
plank of crossing not beveled, but edge straight, beveled edges
on side nearest rail, usual manner of constructing plank cross-
ings; court charged that an engineer may prudently assume
that persons on the track will step off as the train approaches,
and he is not negligent in acting on that assumption except
when they are persons apparently not capable of taking care of
themselves such as very young children and persons lying
helpless on the track ; refused to charge that the engineer had
a right to act on the assumption that the girl would step aside.
Injury, leg amputated.
(Verd. $20,000.-—Aff. at Gen, T.—Aff.)

\

Cusick v, ADAMS. II15N. Y., 55.

The owner of a private bridge, which the public uses by his sufterance, but
from which use he derives no advantage, is not bound to maintain it in
safe condition.

PIff fell through hole in bridge over Mohawk River, built by
deft to connect an island owned by him with City of Cohoes,
no part of it rested on highway, had been used by public by
deft’s sufferance, not permission, deft not advantaged by such
public use. Injury to hand.

(Verd. $500.—Aff. at Gen. T.—Rev. new tri. ord.)

GRISWOLD v. N. Y. ©. & H. R. R. R.Co, 115 N. Y., 61.

The opinion of a medical expert as to the probabilities of the recovery of an
injured person is admissible.
362 Casrs CONDENSED. [1889.

 

Plff injured ‘through deft’s negligence; medical witnesses
allowed to give opinion as to the probabilities of her recovery.
Injury, hip injured, partly paralyzed, concussion of spine,
urinary trouble.

(Verd. $2, ooo—Aff. at Gen. T.—Aff.)

NotTe.—Finch, J., says ‘‘a diagnosis is little more than a guess enlight-
ened by experience.”’

Stone v. Dry Dock E. B.& B. R, R. Co. 115 N. Y., 104.

Unless it is clear that a child of tender years is saz juris, it is for the jury to.
say whether it acted with the degree of prudence that might reasonably
be expected under the circumstances from a child of its years.

The burden is on the plaintiff to show that a child is zon sui juris, when its.
acts are such as would be negligent in persons of mature years.

In an action to recover damages for injuries sustained by an infant, the
point that its parents were negligent is not presented by a motion fer a
nonsuit on the ground of contributory negligence.

Plff, girl of seven, crossing street, run over by deft’s street-car
driver being engaged in looking into car, having increased
speed after plaintiff left sidewalk, car being then 50 ft. off, 12 ft.
from sidewalk to track; in moving for nonsuit no question of
negligence on part of parent was presented,

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

WEBSTER v. RoME, W. & OG. R. KR. Co. 115 N. Y., 112.

Riding in a baggage car does not bar a passenger’s recovery for injuries
received while so riding, unless it contributed to them.

It is the duty of a railroad company to secure its cars on side tracks, so that
any expectable wind will not blow them on to the main track,

Plff, passenger, left seat in coach to smoke in baggage car,
injured in collision with empty car standing on track, deft’s.
explanation of its presence on main track was that it had been
blown thereby the wind from side track ; court charged if plff’s
presence in baggage car contributed to his injury, could not
recover. Injury, collar bone fractured, back bruised.

(Verd. $4,500.—Aff. at Gen. T.—Aff.)
1889. ] _______ Cases Convensep. 363.

AHERN v. STEELE, 115 N. Y., 203.
A remainder man who succeeds to real estate subject to a valid out-standing

lease, is not responsible for the continuance of a nuisance created thereon
during the existence of the precedent estate, without notice thereof,

PIff's intestate, a boy of six, drowned, fell through hole in
pier ; deft’shad become owners of the pier at the death of their
mother under will of grandfather, which created trust during
mother’s life ; pier had gotten out of repair during existence of
trust; while in that condition let to a tenant with provision in
lease that landlord might enter to repair, but was not to be
obliged to repair; lease outstanding when defts became own-
ers ; defts had no notice of defective state of pier.

‘Verd. $4, 500.—Aff. at Gen. T.—Rev. new tri. ord.)

 

O'NEILL v. N.Y., O. & W. RB. R. Co. 115 .N. Y., 579.

Rule in Field v, N, Y. C., 32 N. Y., 339, re-affirmed.

It is negligent for a railroad company to allow dry brush and other com-
bustible material, easily set on fire by sparks from its engines, to accumu-

_ late along its tracks.

The fact that afire reaches plaintifi’s property over intervening land fur-
nishes no new cause to which the injury can be ascribed.

Or,

The fact that a fire reaches plaintiff's property over intervening land does
not make the original cause of the fire a remote cause.

Plffs woodland set on fire by fire on ground between it and
deft’s track, communicated from brush along the track fired by
sparks from deft’s engine, spark arrester out of order or im-
properly constructed; dry brush and other combustible material
allowed by deft to accumulate at side of its track.

(Verd. for plffiAff. at Gen. T.—Aff.)

Notr.—Although Danforth, J., does notesay that the Ryan case is anala.
gous, yet in view of the ruling in Pollett v. Long, 56 N. Y., 200, as well as in
this, may it not be fairly taken that, one of the rulings in the Ryan case is
no longer law in this state? On what principle can a distinction be made
to turn upon the ownership of the intervening land? But see Reed case,
118 N. Y.; 224.

Boye v. N. Y., LAKE Erte & W.R.R.Co. 115 N. Y., 636.

Plff’s intestate’s horses killed by deft’s engine, strayed on track
through broken fence.
364 Cases CONDENSED. [1889.

 

(Verd. for plffii—Rev. at Gen. T. on question of fact.—Aff.
judg. absol. agst. plff.)

Notr.—The court says there was no error of law at the trial, that there was
no evidence that the horses were killed by the reckless, wanton or malicious
conduct of deft’s engineer, and hence there was no basis for a recovery.

 

PAINE v. VILLAGE OF DELHI. 116 N.Y., 224.

An injunction will not lie to restrain the doing ofa'thing on the ground that
it is going to be negligently done, and damage will ensue.
Or,
Negligence is not one of the subjects of equitable jurisdiction.
Action to enjoin deft doing a thing on ground it was going to
do it negligently.

ALBERT v. SWEET. 116 N.Y., 363.

Whether the failure of an engineer on a locomotive to notice that his track
is obstructed, when the obstruction does not rest on the rails, but hangs
several feet above them and is not conspicuous, is negligence, isa ques-
tion of fact.

When railroad tracks of different owners cross each other and permission
is given by oneto the other for the latter’s cars to cross the former’s track,
the latter must not allow a car to stand so as to obstruct the former’s
track, whether he expects a train on it or not.

Or,

When railroad tracks of different owners cross each other, license to one for
cars to cross the track of the other, gives no right to the former to allow
his cars to stand so as to obstruct the track of the other, even though no
train is expected.

Piff, engineer on locomotive of one co., injured in jumping
from his engine to escape collision with car on a crossing track
of another co., flat car standing on crossing track, and _project-
ing over his own track ; crossing track being built by defts as
contractors for other co., permission given them by plff's em.
ployer to cross its tracks with construction trains, also time
tables ofits trains given; deft’s servants had backed construction
train so that end of last car hung over plff’s co’s track; on start.
ing construction train ahead car uncoupled, before it could be
coupled and drawn on, plff’s train travelling ahead of time on
special orders of which defts not apprised, appeared in sight,
1889. ] Caszs CoNDENSED. 365

deft’s servants signalled it to stop; as soon as he saw the
signal, plff, to whom the track had appeared clear, tried to stop,
not stopping in time jumped. Injury, foot and ankle crushed
and broken.

(Report $4,600.—Aff. at Gen. T.—Aff.)

FEENEY v, Lone Isuanp R. R, Co. 116 N. Y., 875.

When a railroad company has gates at its crossings, it must operate them
so as not to injure persons properly passing through them.

Whether it is negligent for a person crossing a railroad track under gates, to
omit to observe whether the further gate is stationary, the nearer one
being so, is a question of fact.

Where it is reasonably certain that medical attention to an injured person
will be needed in the future, the expense thereof for the future as well as
the past, may be considered by the jury without any evidence of the value
thereof.

Piff, crossing deft’s track at street crossing, defended by gates,
had passed through gate on one side, struck by gate as it
descended on the other side, gateman bringing it down more
rapidly than usual, night, raining, plff had umbrella up, before
entering on track observed passage clear, after entering did not
look to see if further gate remained stationary ; evidence that
future medical services would be necessary; no evidence of
value of medical services given ; court charged that the expense
of her recovery, past and future, might be included in verdict.
Injury, concussion of spine.

(Verd. $700.—Aff. at Gen. T.—Aff.)

GoopricH v. N. Y.C. & H.R. BR. R. Co. 116 N. Y., 398.

It is the duty of a railroad company, on receiving a strange car for transit
on its road, to see that it is in a fit state for safe coupling to its own train.

Whether the failure of a brakeman to discover, where he has but an instant
in which to do so, that a bumper on a moving car he is about to couple
to another will pass under the bumper of the latter, and allow his hand
holding up the coupling link to be crushed between the dead woods of the
cars, is negligent, is a question of fact.

Piff, brakeman, hand crushed while coupling car of another
co. to deft’s cars, bumper of strange car out of order, hung down,
lower than bumper of home car, plff thought by raising end. of
366 CasEs CONDENSED. 25 (1889.

 

the link, it would enter the higher bumper; bumpers are placed
against springs, and where a car approaches slowly as was
the case here, they receive the shock without giving way enough
to allow the dead woods to meet ; in this instance the defective
bumper on the strange car hung so low as to pass under the
other; plffs hand, holding up the link, crushed between the
dead woods; defts had crooked links for coupling cars with
bumpers of unequal heights.
(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

TISDALE v. DEL. & Hup. C. Co. 116 N. Y., 416.
‘The pleadings may be read to the jury.

Piff, passenger, injured in wreck of deft’s train, bridge broke
as train passed over ; plff’s counsel was allowed to read plead-
ingstothe jury. Injury, spine injured, head lacerated, arm and
leg injured, permanently crippled.

(Verd. $13,000.—Aff. at Gen. T.—Aff.)

Buatrz v. Romrpacw. 116 N. Y., 450.

Evidence that a person drank beer sold by defendant, without proof as to
what kind of beer it was, is not sufficient to warranta finding that 1n intox-
ication which followed resulted from that sale.

Plff's husband, while intoxicated, committed suicide; the only
evidence to connect deft with the intoxication was the fact that
he spent the evening preceding his death in deft’s saloon and
there drank two or three glasses of beer ; court charged that he
drank in deft's saloon intoxicating liquor.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

McCAIN v. BROOKLYN City R. R. Co. 116N. Y., 459.

A street car company must so arrange its cars as to allow reasonable oppor-
tunity for persons to cross the street. ‘

‘Whether a person attempting to cross a street crowded with street«cars,
who uses some care, was negligent in failing to observe the approach of a
car behind him, is a question of fact.

The opinion of a medical expert that certain Auecine? consequences will
follow from.an injury is admissible.
1889. ] Cases Convenai uv 367

 

Pltf while crossing street knocked down by horses attached to
deft’s street-car; several of its cars were following each other
closely, occupying the street, plff watched to cross safely, got
behind and followed a car coming from switch on to main track,
struck by horses of a car he had not observed coming from
another switch on main track behind him, they having been
whipped up by driver who saw plff but made no effort to avoid
him; medical experts allowed to state that in their opinion
certain consequences would follow as a result of the injury.
Injury, shock, leg and back injured, inflammation of the sciatic
nerve.

(Verd. $6,000.—Aff. at Gen. T.—Aff.)

Ivory v. Towy oF DEER Park. 116 N. Y., 476.

Where a road is used for public travel for many years, and the town author-
ities recognize and treat it as a highway, they must keep it safe for travel
as a highway.

It is the duty of town commissioners, having the means to do so, to guard
highways at curves, when they have knowledge that there is an excava-
tion near by, so situated that a traveller at night not acquainted with the
curve would by: pursuing a straight course be likely to plunge into it.

‘The fact that commissioners of a town have no money in hand to make a
highway safe, is no excuse for neglect to do so, where they have the
power by law to raise the money.

Plff driving at night over road in deft’s town at a curve,
which he did not know of, continued straight ahead, plunged
into unguarded excavation 11 feet from beaten track ; road not
laid out as provided by statute, but recognized and used as
highway many years, excavation there eleven years; deft’s
toad commissioners had expended their funds, but had power
under various laws to raise money to keep the highway safe,
application of which in their discretion ; suit brought under
chap. 700 Laws of 1881. Injury, shoulder dislocated.

(Verd. $500.—Aff. at Gen. T.—Aff.)

Scuev v. BENEDICT. 116 N. Y., 510.
Plff shipped malt by deft’s canal boat; bill of lading gave
consignees right to inspect it as it was taken from the boat
before accepting it; consignees began to unload, accepted a
368 Cases ConDENSED. (1889.

 

portion, their men did not appear again for seven days, during
which a Sunday, a holiday, and one or two rainy days inter-
vened ; defts neglected to take proper care of it, damaged ; con-
signees refused to accept it. Held, (1) whether consignees
proceeded with due diligence, question of fact, (2) only such
portion as passed inspection was accepted, (3) as to remainder
defts bound to take proper care of it; if consignee refused or
neglected to take it away in reasonabletime, carrier should store
it in safe place.

REID v. TERWILLIGER. 116 N. Y., 530.

Exemplary damages are not recoverable under the Civil Damage Act except
upon proof of aggravating circumstances.

Piff’s husband’s death due to intoxicating liquor sold to him at
an hotel owned by the appealing deft; the other deft, the tenant,
had been requested by plff not to sell liquor to her husband ;
not shown that appellant knew of this; court charged exem-
plary damages might be awarded against both.

(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord.)

McDowatp v. Lone Isuanp R. R. Co. 116 N, Y., 546.

When a passenger is using reasonable diligence to get off a trainata station,
it must not be started until he has gotten off,

A passenger is not bound to notify the conductor of his intention to get
offa train at a station. :

A passenger, using due diligence to get off a train at a station, is not bound
to observe whether the conductor sees him.

A passenger, alighting from a train at a station, is not bound to keep hold of
the car-rail till he reaches the ground.

Plff, passenger, when train stopped at his station, he got up,
went out of front door of car near which he had sat, as he was
stepping off last step of platform let go of railing, was thrown to
ground by sudden start of car without warning; did not seek
conductor to inform him of purpose to leave car, nor did he see
that his movement to get off was not observed by conductor ;
court charged that if the jury believed his story he was entitled
toa verdict. Injury, foot crushed, amputated,

(Verd. $8,000 —Aff. at Gen. T.—Aff.)
1889. } Cases CONDENSED. 369

PETTENGILL vt. City OF YONKERS. 116 N. Y., 558.

Plff, driving in deft’s street, dark night, upset by heap of rock
and dirt thrown out from trench for water pipe, dug by con-
tractors under contract with deft’s water commissioners, trench
and heap there two months, unguarded, unlighted; water board
a dept of deft, not independent body. Injury, bruisesandshock,
causing miscarriage, nervous prostration,

(Verd. $10,000,—Aff. at Gen. T,—Aff. )

Nothing new.

KELLY v. Doopy. 116 N. Y., 575.

The fact that a person is to be benefitted by the performance of a contract
between two other persons, by reason whereof he interests himself to
send a person applying for work to one of the parties to the contract,
does not make him responsible for the way in which the work is done.

Plff fell into unguarded trench in sidewalk, dug by a casual
laborer under direction of a plumber, who had contract with
owner to plumb the house, trench necessary to complete con-
tract ; rent of house pledged to deft for debt of owner to him,
interested thereby to have water connection made, as tenant
threatened to move out if not done; the “casual” had applied
to deft for work and deft sent him to the plumber, having told
the latter he would get some one to finish the job for him; plff
knew of trench but her attention was distracted at the moment.
Injury, to pelvis, hip broken, mb broken.

(Verd. $5,000. —Aff. at Gen. T. ~Rev. new tri. ord )

Hunter v..N. Y., Onr, & W.R. R. Co. 116 N. Y., 615.

Arailroad company must.notify its brakemen on freight trains of the
existence of an arch in its tunnel, which reduces the height inside below
the height at the ends.

Where a verdict can only have been given on the theory that a person must
have been eight feet high, the appellate court must, in the absence of
evidence of his height, take judicial notice that he was not that height,
even though the jury saw him.

Or,

A verdict which can only be sustained on the theory that a person was
eight feet high, must in the absence of evidence so showing, be reversed,

even though. the jury saw him.
Or,
370 Cases CoNDENSED. [1889.

 

In the absence of evidence that a person was eight feet high, an appellate
court cannot assume that he was, even though the verdict could only
have been given on that theory and the jury saw the person.

Plff, brakeman, sitting on top of freight car, going through
tunnel, tunnel at beginning 20 feet high, further in an arch
reduced height to 15 feet 9 inches from the rail, 4 feet 7 inches
from the top of car on which plff sat; he testified sat on car,
knew no more; he was found on the track foot crushed, gash
in forehead; no other theory of accident offered than head cut
by arch ; no evidence of his height; court charged that if ‘plff
was sitting down it was for jury to say whether his head would
reach to that height. Injury, leg amputated.

(Verd. $6,000.—Aff, at Gen. T.—Rev. new tri. ord.)

WILLIAMS v. Det., Lack. & W. R.R. Co. 116 N.Y., 628.

A brakeman on a freight train must bear in mind the bridges under which
he knows his train is to pass.

Piff, brakeman, on top of freight train, struck by bridge,
passed under it daily, in plain sight as train approached, nothing
occurred to divert his attention, turned his back to go to rear of
train. Injury, shoulder and collar bone displaced, concussion
of brain, body and head badly bruised.

(Verd. $4,900.—Aff. at Gen. T.—Rev. new tri. ord.)

JUDSON v. VILLAGE OF OLEAN, 116 N. Y., 655.

The rule that the master is bound to provide safe appliances for his servants’
use, does not extend to the case of an appliance constructed by them-
selves to facilitate their work.

Or,

The master is not liable for damages sustained by one servant from the
negligence of a co-servant in constructing a scaffold for their joint use in
prosecuting the work.

Plff, employed by a mason who was superintending for deft
the construction of a chimney on engine house being built by
deft, mason authorized to employ such laborers as he chose;
plff and another man in mason’s employ constructed scaffold
for use on chimney, other man insufficiently nailed the scaffold,
gave way under plff. Injury tospine, causing paralysis of legs.

(Verd $4,000.—Aff. at Gen. T.—Rev. new tri. ord.)

4
1889. } Cases CONDENSED. 371

 

BARTON v. GOVAN. 116 N. Y., 658.

Plff broke his leg, deft a physician, treated it negligently.
Injury, crippled permanently.
- (Verd. $850.—Aff. at Gen. T.—Af£)

‘‘Nothing of general interest”.

BARKER v. PAULSON. 116 N. Y., 660,

It is immaterial that a plaintiff locat +s his accident at the wrong spot, if he
does so honestly, and it was due to defendant’s negligence.

Piff’s, foreman for mason, having mason contract on building
being erected by defts, fell on staircase in basement, tem-
porary treads negligently removed by defts, staircase broken
by platform, disagreement as to whether accident occurred on
upper or lower flight; court charged if jury believed deft’s
witnesses as to spot where accident occurred, must find for
deft’s ; refused to charge that if jury found plff honestly mistaken
as to spot where he fell, and if his fall was caused by deft’s
negligence, he was entitled to recover,

(Verd. for deft.—Aff. at Gen. T.—Rev. new tri. ord.)

Marvin v, Pettir. 117 N. Y., 118,

A house-owner who takes due precaution to cover an outside approach
from the sidewalk to his cellar and has his house patrolled by a watch-
man, is not chargeable with negligence in allowing the approach to be
uncovered, when the cover is removed without his authority or
knowledge while the patrol is at a different part of his round.

Piff’s intestate (dying pending appeal), passing along side-
walk, fell down steps leading up from cellar of deft’s house in
area between house and sidewalk, extending into sidewalk 18
inches ; he had diverged tu one side to pass some men, stepped
into the opening, eyesight defective ; deft had leased cellar to
tenant then in possession, had provided a grating to cover cellar-
way, had a watchman to patrol outside of building instructed to
see that the cover was kept down ; watchman was at the time
of accident on his round, cov 7 had becn in place, before round
372, Casks ConDENSED.- ; (1889,

completed some one removed it, out of place when deceased.
went by, night. Injury, head, body and limb contused.

(Verd. $2,000.—Aff, at Gen. T.—Rev. new tri. ord.)

Note.— The complaint did not allege that deft maintained a nuisance,
the case was not tried on that theory, but the question made was whether
deft was negligent.

MoyYNAHAN v. WHEELER. 117 N. Y., 285.

It is not negligent to lead through the streets a cow, which is not known
by her owner to be vicious or unruly.

PIE, injured by deft’s cow, cow being led through city street,
attacked by dogs, escaped from keeper, ran away, ran over
plff, no proof that cow was known by deft to be vicious or
unruly. Injury, leg broken.

(Verd. $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)

SILBERSTEIN v. Houst., West St. & Pav. F. R, R. Co. .
117 N. Y., 293.

Where the issue is whether a person has been negligently run over by a
street-car, the fact that ice onits track is due to the company’s negligent
failure to remove it is immaterial.

Plff, crossing deft’s street car tracks, slipped on ice, run over
by deft’s car moving at unusual rate of speed; evidence
admitted of no fall of rain or snow during two days previous,
object being as claimed by plff, to impute negligence to deft in
failing to remove snow and ice from its tracks. Injury, arm,
amputated, internal injuries.

(Verd. $15,000.—Aff. at Gen. T.—Rev. new tri. ord.)

KosMak v. THE Mayor &c. or N.Y. 117 N.Y.,, 361.

A municipality is not bound to maintain as a public sewer a private drain.
which it purchases,

PIffs premises flooded by sewage from deft’s sewer owing to:
an obstruction in drain emptying into sewer; drain constructed:
in deft’s street as private drain by adjoining owner, ran past:
piffs house ; such adjoining owner conveyed his premises:
including his private drain ‘to deft; plff, under permission of»
1889. ] Cases CONDENSED. 373

 

deft and payment of license fee, made a drain connecting his
premises with this drain; water from Brooklyn bridge discharged
into latter drain; no evidence that deft had adopted this drain
as a public sewer; deft had been notified by plff of the

obstruction,
(Verd for deft.—Aff. at Gen. T.—Aff.)

McCann v. SixtH AvE. R. BR. Co. 117 N. Y., 505.

‘The act of a Woy in leaping from a car platform, without looking, into the
street in front of an approaching car, when doing so to avoid being
kicked oft by the conductor, is not necessarily negligent, even though
he may have been technically a trespasser on the first car.

PIff, boy, crossing street, way blocked by deft’s car at cross-
ing, jumped on platform to avoid truck, conductor kicked at him,
leaped off to avoid kick, landed in centre of other track,
knocked down by horses of deft’s car going other way, moving
at rapid unusual rate, plff did not look before leaping.

(Verd. directed for deft.—Aff. at Gen. T.—Rev. new tri. ord.)

Murray v. USHER. 117 N.Y., 542.

A sudden development of insecurity in an appliance furnished by a master
for his servant’s use will not excuse the master, if the failure to ascertain
the defect beforehand was attributable to want of proper inspection.

When a master delegates to a servant the duty of inspection and repair of
the appliances for the use of co-servants or places where they work, he
does not thereby escape the responsibility incumbent on him of seeing
that they are kept safe for servants’ use.

Payment of an injured person’s support after an accident is not a bar to an
action to recover the damages sustained by the next of kin for his death,
unless it was paid under an agreement with him that it was to be in
liquidation of the damages he sustained.

Nor is it any mitigation of the damages to the next of kin.

Plff's intestate, employee, died from injuries received from
falling of defective platform, deft’s superintendent negligently
omitted to inspect and repair it; evidence that defts had paid
for deceased’s support from time of injury to death, also funeral
expenses, excluded; eourt charged that sudden development of
374 Cases CONDENSED. [1889.

 

insecurity of platform would not excuse the defts if failure to
ascertain defect beforehand was attributable to want of proper or
competent inspection.

(Verd. $1,650.—Aff. at Gen. T.—Aff.)

Nore.—The Court of Appeals has defined a scaffold to be an appliance
rather than a place to work. As it may be doubtful whether the platform

in question should be considered as a scaffold, or as a floor, the second.
nead-note has been stated in terms both of appliance and place,

Forp v. LAKE SHorE & M.S8.R.Co. 17 N. Y., 638,

A master owes no duty to his servants to see that his vehicles are properly
loaded, other than to promulgate proper rules in that respect.

Plff's intestate, switchman, killed by timber falling from
passing-car; car a proper one, fall due to. negligence of deft’s
servant in loading it.

(Verd. $4,000.—Aff. at Gen. T.— Rev. new tri. ord.)

' Dorman v. BRoapway R. R. Co. oF BROOKLYN.
117 N, Y., 655.

No negligence can be imputed to a railroad company where the death of a
person is solely due to his being run over because of his accidental fall
upon its track.

Plff’s intestate, accidentally fell on deft’s railway, and was.

killed by a train,
(Verd. $2,500. =e at Gen. T. —Rev, new tri. ord.)

 

ALBERTI v. N.Y., LAKE Erte & W.R.R.Co. 118 N.Y.,77.

In answer to evidence on the part of the defense that an injured person has.
not been properly treated, it may be shown that he was too poor to employ
a skillful physician.

The calling by a patient of his physician asa witness on his behalf is.
waiver of his privilege under §§ 833 and 834 of the Code.

It is competent to ask a medical expert what is the natural and ordinary
result of an injury.

PIff, passenger on deft's train, injured through its negligence,
* struck by broken glass, muscle of leg contracted, legs drawn up
against body, he made helpless ; after evidence by deft that
1889-90, } Cases ConDENSED. 375

 

his physician had not had experience in treating injuries like this,
and that a physician in N.Y.,a recognized authority in such cases,
had not been employed, plff was allowed to prove dependence
on his earnings for support of self and wife ; evidence by plff’s
physician as to his condition allowed, deft objecting on ground
of prohibition in §§ 833, 834 of Code, plff’s counsel stating that
as plff’s atty he waived privilege ; another physician of plaintiff
allowed to state what in his opinion would be the result of the
disease in natural, ordinary course. Injury, ribs broken, con-
cussion of spine, loss of use of legs. Incurable.
(Verd. $25,000.—Aff. at Gen. T.—Aff.)

DRAPER v. DEL. & Hup. ©. Co. 118 N. Y., 118.
Piff’s household goods shipped over deft’s road, destroyed by
fire, while in car near freight depot at end of journey ; been
there a number of days; bili of lading gave deft right to store
them or leave them in car, with liability only as warehouseman,
no evidence as to origin of fire, nor of negligence of deft, in
failing to save car fromit. Judg. for deft affirmed.

MILLER v. OCEAN S.S. Co, oF SAVANNAH. 118 N. Y., 199,

When a ship is being warped to a dock, its officers should warn passengers
to stand away from the hawser.

The breaking of one of the appliances used to warp a ship to a dock
is, as to an injured passenger, sufficient to warrant an inference either
of negligence in its use or of its want of fitness.

Evidence of the immediate replacing of a broken appliance by another,
which does not break is admissible, on the question of defendant’s negli-
gence, to show that there was existing at hand adequate means of accom-
plishing what was to be done.

Plff, passenger, standing with other passengers on deck in
usual place awaiting landing, ship being warped to dock, usual
to warn passengers to stand away from near hawser, not
warned, hawser passed through a block, then went at right
angles, block held in place by stick used as toggle (pin placed
in eye of block or bolt to keep it in place), when power applied
stick broke, hawserrecoiled, upset plff ; after stick broke capsten
bar used as toggle, stood strain ; officers knew injury might
result to passengers if appliances eave way. Injury, compound
fracture of leg. :

(Verd. $8,000.—Aff. at Gen. T.—Aff.)
|

376 Caszs CONDENSED. (1890.

 

READ v. NICHOLS. 118 N. Y., 224.

Where a negligently-caused fire spreads from one man’s premises to
another’s, and then to another’s, and so on, the negligence resulting in
the first fire is not the proximate cause of the burning of the last house.

Plff's house burned by fire, spreading from an adjoining
building, communicated from another building in turn from
another, and that from another, the last being set on fire by
sparks from deft’s smoke stack ; evidence of the value of the
house first mentioned excluded on ground that any negligence
of deft was not proximate cause ; upona second issue whether
another building of plff’s set on fire at same time by escaping
sparks, was burned through deft’s negligence, case sent to jury.

(Verd. for deft,—Aff. at Gen. T.—Aff.)

See note to O’Neil case, 115 N. Y., 579.

URANSEY v. Dry Dock E. B.& B.R.R.Co. 118 N. ¥., 304.

Loss of earnings are not recoverable as special damages by a married
woman, injured through negligence, where there is'no allegation in the
complaint that her earnings belong to her rather than to her husband.

Plff, injured through deft’s negligence; evidence admitted of
amount of her earnings and loss during recovery ; married
woman ; no allegation in complaint that she was carrying on
business on her own account, or was for any reason entitled to
her earnings. Injury to face and head cut, miscarriage caused.

(Verd. $750.—Aff.at Gen, T.—Rev. new tri. ord.)

Boyce v. MANHATTAN R’way Co. 118 N. Y., 314.

Whether a railroad company is guilty of negligence in allowing a passenger
to alight from its train at night and unwarned at a spot where there is a
space a foot wide between the platforms of the car and the station, is a
question of fact. :

Whether a passenger alighting from'a train is guilty of negligence in
stepping into a vacant space between the platforms of the car and the
station, the existence of which is unknown to him and is hidden from
his view by preceding passengers, is a question of fact.

PIff, passenger, stepped into space between platform of car
and station on elevated road, station on a curve, car at a tan-
gent, middle of car within inch or two of platform, ends of ¢ar
1890.] Casrs CoNDENSED. 377

 

fourteen inches off, night, light on platform some distance off,
passengers getting off ahead hid the gap between the platforms,
no warning of it given, plff never there before. Injuries to
body, causing shock and spinal irritation.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

FAYERWEATHER Vv. PHENIX INs. Co. 118 N. Y, 324.

A shipper whose goods are shipped under a bill of lading, which provides that
the carrier shall have the benefit of any insurance effected upon them, and
are lost through the carrier’s negligence, cannot recover. the insurance
upon them under a policy which provides that the insurer shall be
subrogated to all claims against the carrier, and that the insured shall
make no agreement with the carrier to cut off his right of action
against the latter.

Hoyt v. N. Y., Lake Erie & W.R.R.Co. 118 N. Y., 399.

Where an issue is whether an upset of a wagon was due to defendant’s
' negligence or to a defect in the wagon, it is admissible to show that the
day after the accident the wagon came near being upset through a disar-
rangement of its contrivance designed to prevent an upset. '
It is erroneous to charge that error of judgment is not negligence, without
the qualification that the judgment exercised must be that of a man of
ordinary prudence.

Plff, driving farm wagon loaded with straw over deft’s cross-
ing, wagon on a turn, hind wheel went into hole ai side of
planking, load slipped off, plff went with it, injured in. the fall;
evidence in support of deft’s theory wagon out of order was
offered, that next day on turning while loaded it came near
being upset by bolster dropping down behind the hound (bolster
and hound being a contrivance to prevent farm wagons from
upsetting on curves), excluded; court charged jury not to
understand that contributory negligence means any error of
judgment, and that mere error of judgment as to what particular
part of the crossing plff would drive over could not be called
negligence, Injury, leg broken.

(Verd. $5,000.—Aff. at Gen. T. —Rev. new tri, ord.)
378 Cases CONDENSED. [1890.

 

VAN WYCKLEN v. CITY OF BROOKLYN. 118 N. Y., 424.

Upon an issue whether the water of a stream has been diverted by means
of driven wells several hundred feet from it, it is not admissible to ask
an expert his opinion as to whether it was possible for the wells to take in
water from the stream. ‘

BRENNAN v. GORDON. 118 N. Y., 489.

The master’s own knowledge of the duties an inexperienced servant is set
to do, is not the measure of the amount of instruction in regard to them,
which the master is bound to see that such servant receives, but he is
bound to provide a competent instructor and to see that such instructor
properly instructs.

Or,

A master is bound to see that an inexperienced servant is properly
instructed in his duties, without regard to the master’s own knowledge of
them.

Plff, running deft’s elevator, injured by its fall, inexperienced;
issue was whether another employee had heen designated by
deft as plff's instructor, and if so, whether he had properly
performed that duty; court charged if jury found that plff
Was put under instruction of a competent instructor and that
the instructor was as well acquainted as deft with the nature
and character of the services about which he undertook te
instruct, plff could not recover.

(Verd. for deft.—Aff. at Gen. T. —Revy. new tri. ord. )

FERRY v. MANHATTAN R’way Co. 118 N. Y., 497.

The excellence of a defendant’s rule for, or method of, doing its business is
immaterial where the issue is whether a stranger interfered with the
carrying out of such rule or following such method, and the circum-
stances are such that if he did interfere defendant was not negligent.

PIff, passenger, getting off deft’s train thrown down by
sudden starting of train with a jerk; deft’s system of starting
its trains was through signals by means of bell-rope trans-
‘mitted from rear brakeman to next one, and so on to conductor
on first car, and by him to engineer, each man pulling the rope
as signal to next ; plff got off rear car, its brakeman said he
gave no signal, btakervan on next car said he received signal,
it was claimed that a passenger had caught hold of bell- -rope to
1890. } CasEs CONDENSED. 379

 

steady himself; court charged if train started by passenger
deft not negligent, if not, it was; refused to charge, no proof
of any vice in the system of communicating the signals, jury
not to consider the question, no evidence that the method of
fixing bell-rope was not the best, and jury not to consider it.
Injury, spine and hip injured, ulceration of womb.

(Verd. $10,000.—Aff. at Gen. T.—Aff. )

Mourpny v. N, Y. C. & H.R.R.R.Co. 118 N.Y., 527.

It is negligent to shunt cars down a track’ against a car which it is known
is being repaired.
The omission of a car-repairer to set the brakes on cars which he is repair-
ing is not necessarily negligent.
Plff; repairing car of R. W. & O. R. R. Co., on its track, arm
crushed between its bumper and that of car next to it, forced
_together by being struck by unattended car shunted from deft’s
track by deft’s servants from a switch several hundred feet off
connecting deft’s track with track in question ; conductor of
‘deft’s train from which car shunted knew plff was at work, plff's
danger flag on car ahead could be seen from the switch ; plff
had not set brakes on cars where he was working; by rule of
plff’'s co. duty of station agent to set brakes on cars standing at
_stations to prevent being blown on main track, grade, up grade
to main track. Injury, arm broken.
(Verd $1,000.—Aff. at Gen. T.—Aff.)

,

BAKER v. MANHATTAN R’way Oo. 118 N. Y., 533.

Starting a train while a passenger is in the doorway of a car waiting for a

chance to get off is negligence.
It is not negligent for a passenger, if the brakeman neglects to open the

car door when the train is drawing up to his station, to open the door
himself and stand in the doorway ready to get off.

Ifa party is entitled to recover nominal damages, it is not error to refuse to
charge that he is not entitled to recover any damages.

Plff, passenger, finger injured, door of deft’s car swung to,
she standing in doorway waiting for guard to open gate of car
at her station, train had stopped, guard absent from post, she
opened door herself, did not swing it back over catch, guatd
380 Cases CoNDENSED. [1890,

 

signalled train to start, motion of car swung door, caught her
finger; teacher in public school, also of music, could not strike
piano key with injured finger, necessary to play in giving
lessons, no evidence of salary as school teacher, nor earnings
as music teacher ; court charged ‘nothing could be allowed
specially for these items, refused to charge that there was no
evidence on which jury could give damages for loss of time as
music teacher, and no evidence that she had suffered damages
by being absent from school, and they could give no damages
for such absence “except as charged.” Injury, finger mangled
and part cut off.

(Verd. $500.—Aff. at Gen. T.—Aff.)

LEHR v. STEINWAY & HUNTER’S Pt. R. R. Co.
118 N. Y., 556.

Whether a carrier is negligent in taking on board his conveyance more
passengers than can be conveniently accommodated is a question of
fact.

Whether a passenger, in riding on the front platform of a crowded car with
the assent of the conductor, is negligent is a question of fact.

A passenger, by surrendering a seat in a crowded car to one less able than
himself to stand, does not contribute to an injury which he would not
have received if he had been seated.

PIff, passenger, on front platform, one foot on step, car
crowded, forced off by surging of passengers, fell under car,
run over, leg amputated ; had entered car with invalid wife,
’ given seat to her, had gone to rear platform, more crowded
than front, went to that in company with conductor who made
no objection ; more passengers taken on than could be conve-
niently carried. Injury, leg amputated.

(Verd. $5,000,—Aff. at Gen. T.—Aff.)

SANFORD v. STANDARD O1n Co. 118 N. Y., 571.

A master who hires to another a machine and a servant to tend it under
orders from the servant of the other, is responsible for the damages result-
ing to such other servant from the negligence of the machine tender in
failing to obey the directions given by suchservant.

Or,
1890. ] Casrs CONDENSED, 381

 

A person in charge of a drum on a dock, the use of which with such person
to manage itis let by the dock owner to a stevedore for the loading of a
vessel at the dock under contract with her master, is not a fellow-servant
of the servant of the stevedore.

PIff, servant of firm ofstevedores, engaged by master of vessel
to load it with oil at deft’s dock ; his employers hired from deft
steam power, drum and drum-man for aid in loading, drum used
to regulate the hoisting of barrels from dock to deck and lower-
ing them in hold, drum man on dock to obey signals for raising
and lowering barrels, signals given by gangway man on deck,
who guided barrels from ship’s side to hatchway, plff was
gangway man; owing to drum-man’s negligence in obeying
plff’s signals, plff was knocked into the hold by an unexpected
barrel coming up ship’s side and swinging against him; court
charged that deft was drum-man's master and responsible for
his negligence. Injury, ribs and other bones broken and dislo-
cated, rupture, permanent.

(Verd. $2,000.—Aff. at Gen. T.—Aff.)

NoTE.—It is often said that in no two cases are the facts exactly alike. As
proof of the proverb that every rule has an exception, see the Johnson case,
132 N. Y., 576, and the still more strikingly similar one of Moore v. Palmer,
51 J. P., 196 (English Court of Appeal). A statement of the facts in the
latter would be absolutely the same as that given above, even down to such
an immaterial detail as the barrel being an oil barrel. Nothing is different
except the names of the parties. The author is indebted to the respondent’s
counsel in the Sanford case for the reference to the English one. It is
worth remarking that both of these high courts had before them the case of
Rourke v. White Moss Colliery Co., Eng. L. Rep. Com. Pleas Div., vol. 2,
p. 205, rejected it as inapplicable, and reached the same conclusion as to
defendant’s liability. In nothing is the old adage, that circumstances alter
cases, so well verified as in negligence law. There are probably nowhere in
the books a group of cases so nearly ‘‘on all-fours,’’-as are the four just
mentioned, in principle.

Murpuy v. City oF BRooKLYN. 118 N. Y., 575.
(Ist Appeal. 98 N. Y., 642.)

The semblance of a path leading from a highway, in the direction of an
excavation on private premises, and the absence of a cross-bar from the

- fence at that point, are not sufficient to cast upon the owner a duty, which

+ would not otherwise exist, to guard the excavation so that persons will
not fall into it. .
382 Cases CONDENSED. ° (1890.

 

New evidence, that for 10 or 12 feet from the highway there
was a seeming path, in the direction of the hole, also the cross-
bar of the fence where deceased entered was down.

(Nonsuit.—Aff. at Gen. T.— Aff.) ‘

SmirH v. N.Y. C. & H.R. R.R.Co. 118 N. Y., 645.

Evidence that an appliance has become worn is not sufficient proof that it
is not fit for its purpose.

Plff, employee, injured in collision between locomotive in which
riding and unattended freight car which during night had been
blown by wind on to main track from siding where it had been
left over night, brake having been set; plffs only proof that
brake was defective was that the brake slide had worn thin, did
not prove it would not hold. Injury, body crushed, spine in-
jured, permanently crippled.

(Verd. $15,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Hartwie v. Bay State 8S. & L. Co. 118 N. Y., 664.

A person who is attending a defective press, should not attempt to adjust
the thing to be pressed while the press is in motion, or by putting his
hand on the top of such thing when he may do so by putting his hand on
its side.

PIff, employee, injured while working at defective press; while
in motion, attempted to adjust a mold, put his finger on top of
mold, might have put it at side. Injury, hand crushed, finge.
amputated.

(Verd. $600. —Aff. at Gen. T.—Rev. new tri. ord.)

e
DoY.e v. REcTOR &c. or Trinity CHurcH. 118 N.Y. dik

Suit for services in sinking artesian well. Questien way
whether defts were liable to pay for certain damage, caused by
explosion of torpedo in the well which turned on che question
whether exploding the torpedo at a certain poir was negligent.

(The case here turned on error in admitting hearsr y evidence, and not

submitting to the jury a question of fact as to agency. Upon the new trial,
no issue of negligence appears to have been made see 133 N. Y., 372).
1890. } Cases CONDENSED. 383°

Wet v. Dry Dock BE. B. & B. RB. RB. Co. 119 N.Y., 147.

The rule that the parent of a child of tender age must protect it from
danger to whichits own want of experience may subject it, does not
require the parent to suspend his business and keep the child, when at
home, every moment under his eye. .

 

Pliff, girl of 2, run over by deft’s one horse car driven at a
gallop, driver looking back at boys on rear platform, no con-
ductor ; she had been in care of father in his bakery, street door
left open on account of heat, had gone behind counter, father
supposed her still there, while he was making entries in his
books she escaped into street, not out of his sight more than
two minutes.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

HARRIGAN v. CIty oF BRookutyn, 119 N. Y., 156.

A provision in a municipal charter, declaring that no action shall be main-
tained against the municipality unless it appears in the complaint that
the claim has been presented to one of its officers for adjustment, does
not apply to actions ex delicto.

Piff's complaint stated cause of action to recover damages
resulting from deft’s negligence; no allegation in it that the
claim duly verified had been presented to comptroller and 30
days had elapsed ; in deft’s charteras amended chap. 583, Laws
1888, is provision, no action to be maintained against deft unless
it appears in complaint that 3odays have elapsed since the claim
on which the action was founded had been presented in detail,
duly verified, to the comptroller for adjustment; deft demurred,
no cause of action.

(Demurrer sustained. *—Aff.* at Gen. T.—Aff.)

*So says the report. This must be incorrect, Either the demurrer was
overruled at Spec. Term, and affirmance had at Gen. T.; or it was sustained
at Spec. T. and reversal was had at Gen. T.; because the Gen. T. was
affirmed in the Court of Appeals, and the decision there was that the com-
plaint was sufficient.

DoBBINS v. Brown. 119 N. Y., 188.

When upon the evidence an injury may have occurred from one of several
causes, only one of which inculpates the defendant, a plaintiff should be
nonsuited, if he does not give evidence to negative each of the others as
the producing cause.
884 Cases ConpENsEn. [1890:

Piff's intestate, in deft’s.employ, killed by fall while being
lowered with other workmen in bucket down shaft ; one of the
‘survivors testified, when half way down something came from
above, knocked him out of bucket; this was the only direct evi-
dence as to way accident occurred; cable found broken ata point
20 feet above bucket, also dummy yoke broken in three pieces,
bucket and portion of chain supporting dummy yoke also found;
no evidence that these appliances were defective ; court charged
jury authorized to infer that the accident might have happened
from the accidental stoppage of dummy yoke or follower and
its sudden fall on. the bucket.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

LARKIN v, O"NEIL. 119 N. Y., 221

The omission to put brass plates or rubber pads on a stair-case in a store is
not negligent.
The placing of a lay figure on a broad staircase in a store is not negligent.

PIff, customer of defts, fell while descending stairway in his
store, stairway built by competent builder, risers 714 inches,
tread 10%, steps 15 feet long, wall one side, railing the other,
carpet in middle, 9 feet wide ; on uncarpeted part of a step next
to railing was a lay figure for exhibiting children suits, no brass
plates nor rubber pads on steps. Injury, teeth knocked out, head
and body bruised.

(Verd. $1,600,—Aff. at.Gen. T.—Rev. new tri. ord.)

i

_ DANAHER v. Ciry OF BRooKLYN. 119 N, Y., 241
A municipality, in the absence of a notice of impurity of the water in its

wells, isainder no duty to make from time to time an analysis for the pur-

pose of ascertaining whether it is pure.

Plff's intestate died from typhoid dysentery caused by drink-
ing unwholesome water from deft’s public well; water limpid,
cold, agreeable to-taste, impurity detectable only by analysis,
well had existed many years, used without injury to any one
down to 1882; in August of that year, several persons who
-drank from it beeante sick; impurity claimed to be due to its
being supplied by surface water percolating through deleterious
1890.] Cases CONDENSED. 385,

 

substances ; no evidence that well or its pump improperly con-
structed or out of repair, or water unwholesome from any defect
or external exposure which could have been avoided by reason-
able care, nor that anybody did anything to make water
impure.

(Nonsuit.—Aff. at Gen. T.—Aff.)

OUDERKIRE ¢. CENT. Nat. BK. 119 N. Y., 263.

A bank which holds the securities of its customers for safe keeping, must
take due precautions to identify and protect them from misappropriation
by its officers or clerks.

DONNEGAN v. ERHARDT AS REc’R. 119 N. Y,, 468..

A railroad company owes a duty to its train servants to keep the fences
along its track in such repair that collisions between its train and animals
straying from adjoining property may not happen.

Or,

The duty of a railroad company to keep the fences along its track in repair
exists not only to protect the animals on adjoining premises, but to pro-
tect its train servants from the consequences of collisions between its
trains and straying animals.

PIff, brakeman in employ of deft receiver of railroad company,
injured in wreck of train caused by running over a horse stray-
ing on track through a fence which deft had omitted to keep in
repair. Injury, rupture.

(Verd. $1,000.—Rev. at Gen. T.—Rev. judg. on verd. aff.)

TAYLOR v. BROOKLYN Ex. R. R. Co. 119 N. Y., 561.

Money paid into court, as a tender in satisfaction of damages in an action
of tort, belongs to the plaintiff even though unaccepted by him, and
though on the trial the verdict is in favor of the defendant.

Complaint to recover damages for negligence; under order so
allowing, deft brought into court $200 as tender in liquidation of
damages, and $65 costs to date of tender; not accepted by plff;
verd. for deft.

(Order directing payment of the money to plff'— Aff. at Gen.
T.— Aff.)
386 Cases CONDENSED. [1890.

 

DALZELL v. LonG IsuAnD R.R. Co. 119 N. Y., 626.

Plff, passenger, only question on trial as to amount of dam-
ages. No exception in the record.
(Verd. $10,000. —Aff. at Gen. T.—App. dismissed. )

Cavin v. Crry or BROOKLYN. 119 N. Y., 630.
(S. C. 24 Abb. New Cas. 279.)

Same question as in Harrigan v. City of Brooklyn, 119 N. Y.,
156. :

BIELING vr. City oF BRookLyn. 120 N. Y., 98.

A municipal corporation must see that awnings over its sidewalks are safe.

A charter of a municipal corporation which provides that it shall not be
responsible for nonfeasance of its officers as to any duty imposed upon
them by it, only relieves the corporation from responsibility for their
negligence in a case where a plain duty is by it imposed upon them to do,
or not to do, a particular thing.

Plff, passer-by on sidewalk, injured by fall of awning, unsafe,
improperly constructed in violation of ordinance, covered with
snow long enough to warrant inference of notice to city
authorities ; under deft’s charter, Laws of 1873, chap 863, tit.
19, § 27, it is provided that deft shall not be liable in damages
for any misfeasance, or nonfeasance of the common council, or
any officer of the city or appointee of the common council of
any duty imposed upon them or any or either of them by the
provisions of the act, or of any other duty enjoined upon them
or any or either of them as officers of government by any pro-
visions of the act, the remedy of an aggrieved party to be by
mandamus or other proceeding or actions against such officer ;
care of streets by this charter placed in control of a commis-
sioner. @

(Nonsuit.—Rev. at Gen. T. new tri. ord—Aff. judg. absol.
agst. deft.)

 

DWINELLE v. N. Y.C. & H.R. R.B.Co. 120 N. Y. 11%.

A railroad. company is responsible to a passenger for an unprovoked assault
upon him by a porter of a sleeping car, whatever ‘may have been the
latter’s motive, and notwithstanding that it neither owns the sleeping car,
nor hires nor pays the porter.
1890 ] Cases ConDENSED. 387

 

JENNEY v. CITY oF BRooKLYN. 120 N, Y., 164.

A municipal corporation is not an insurer against damages from works of
its‘ construction.

Evidence that a hydrant on a water-main in a public street had in some
unknown way been removed, leaving the water to gush out, is not suffi-
cient to support an action against the municipality to recover damages to
adjoining property by reason of being flooded.

Evidence that a hydrant on a water-main is found removed and the water
gushing out is not sufficient to warrant the inference that it was negli-
gently constructed or negligently connected with the main.

Pliffs property injured by streams of water from deft’s water
pipe from which fire hydrant had in some unknown way been re-
moved ; not shown by plff hydrant improperly constructed,
was shown by defendant it was not; court left it to jury to say
whether it was so or not.

(Verd. for plff.—Aff. at Gen. T.—Rev.)

Nore.—The plaintiff does not appear to have invoked the principle that a
person who collects water on his own premises must keep it there, or let it
flow off only in such a way as not to injure a neighbor’s property. See
‘cases collected in Part II, under the subject of duties to one’s neighbors,

PALMER tv, DEL, & Hup. C.Co. 120 N. Y., 170.
Whether a common carrier’s system of inspecting its vehicles is sufficiently
careful is a question of fact.

Plff, passenger, struck in eye by end of bell-rope drawn rap-
idly through car, locomotive broke loose from train, spindle of
draw-bar on forward end of first car broke, defective ; did not
appear whether flaw was produced in its manufacture, or from
use on car, discoverable in either case, in the latter by taking
out draw-bar in shop, not customary to do so often, had been in
use two years ; court left to jury to say whether deft failed to
perform its duty in not taking bar out of car and by proper
means inspecting it with a view to ascertain whether it was in
suitable condition for use. Injury, sight impaired.

(Verd. $5,000. —Aff. at Gen. T. —Aff.)

 

Powers v, MANHATTAN R’way Co. 120 N.Y., 178.

"The neglect of a railroad company to institute condemnation proceedings
before taking possession of a person’s property, and before the trial of an
action brought by such person to recover damages therefor, does not
entitle the jury upon such trial to give exemplary damages.
388 Cass CONDENSED. [1890.

 

BENEDICT v. THE STATE. 120 N. Y., 228.

Damages to land from an overflow, caused by a permanent dam erected by
the state for canal purposes, are not recoverable under chap. 321 of the
Laws of 1870, as damages resulting from, negligence in the management
of the state’s canals.

BRICKELL v. N. Y. C. & H.R. BR. KR. Co. 120 N. Y., 290.

When a person riding in a vehicle has equal opportunity with its driver to.
ascertain and avoid expectable dangers, the fact that he is being driven
does not excuse his failure to take such precautions as are open to
him.

Pliff, riding in buggy, which, with driver, hired by him, injured
by train at crossing, approached it at brisk trot, wind blowing,
buggy-top raised, train could have been seen by both, nothing
intercepted view on coming off a bridge one or two hundred feet
from crossing, plff acquainted with locality.

(Nonsuit.—Aff. at Gen. T,—Aff.)

MarsH v. HAND. 120N. Y., 315.

A person who lets his farm on shares is not responsible for injuries done
by a vicious animal belonging to the farmer.

ODELL v. N.Y, C. & H. BR. R. R, Co. 120 N. Y., 323.

If a servant having notice that the master’s machine is out of order, places
his hand upon it so that it may be injured by a start which may happen
because of the defect, he is guilty of negligence.

Piff, employe, injured by unexpected starting of machinery
while changing saws, start occasioned by defect in starting
apparatus, whether plff continued to use it with knowledge
of defect an issue ; court refused to charge if plff knew or had
notice machine out of order, and with this knowledge placed
his left hand on the saw, placing his hand on the saw with this
knowledge and under the circumstances constituted contribu-
tory negligence, and could not recover. Injury, fingers ampu-
tated.

(Verd. $5,500.—Aff. at Gen. T.-— Rev. new tri. ord.)
1890. } Cases ConDENSED. 389

 

BisHoP v. VILLAGE OF GOSHEN. 120 N. Y., 337.

Pliff, slipped on ice on deft’s sidewalk, water could not flow
off, grating on drain to carry it off covered with snow thrown
on it by deft’s servants on cleaning cross-walk near by. Injury
‘to hip.

(Verd. $3,500.—Aff. at Gen. T.—Aff.)

Only question was whether jury had been misled by admit-
tedly irrelevant charge.

Rima v. ROSSIE 1RON Works. 120 N. Y., 433.

When a person is seeking escape from impending danger and is delayed,
whether he is negligent in getting away is a question of fact.

If it appears at the trial of an action that the plaintiffs an infant, a nonsuit
is not necessary, but the court can thenand there appoint a guardian nunc
pro tunc, and amend the pleadings accordingly.

PIff, employe, shoving car into position, thrown against him,
another car ran against it, latter was being drawn up inclined
plane, broke loose from drawing cable, ran back, its draw-bar
cracked, of which deft’s mine boss had notice ; plffhad warning
of descending car, while taking only means of escape, foot
slipped on ice, struck before could recover himself; at trial it
appeared plff infant, deft moved for nonsuit, court made order
appointing guardian unc pro func as of date previous to suit,
and amending pleadings. Injury, leg broken, great toe ampu-
tated, foot injured, head and arm bruised.

(Verd. $2,400.—Aff, at Gen. T.—Aff.)

Lent v. N. Y. C. & H.R. BR. R. Co. 120N. Y., 467.
‘Whether a conductor is negligent in prematurely crying out ‘-all aboard”?

is a question of fact.

‘Whether a passenger is negligent in complying with a conductor's premature
cry of ‘all aboard” is a question of fact.

Plff, passenger, fell between two cars, stepping from one tothe
other at depot ; train crowded, conductor said, put on another
car, st@od with other passengers at end of car, other car backed
up, when cars touchd, conductor said ‘‘all aboard,” passengers
ahead of her stepped to other car, draw-heads failed to catch, car
receded several feet, not perceived by plff, dark; failure of
draw-heads to catch not due to defect, but to curve in track.
Injury, spine and leg injured, nervous prostration.

(Verd, $1,000—Aff. at Gen. T.—Aff.)
390 CasEs CONDENSED. . [1890.

 

Buy vr. VILLAGE OF WHITEHALL. 120 N.Y., 506.

It is not negligent for a person, using care, to pass along at night a sidewalk
covered with water.
Sidewalks must not be left unguarded, when, covered with water.

Or, .
It is negligence in a municipality after notice to leave its sidewalks covered:

with water and unguarded.

PIff, stepped from sidewalk into deep gutter, sidewalk covered
with water, night, used care; deft’s commissioner had that after-
noon cleaned gutter from snow and ice, failed to remove an
obstruction preventing water from running into sewer. Injury,
two ribs broken, ruptured.

(Report $2,900.—Aff. at Gen. T.—Aff.)

McCaRraAGHER ¢. Rogers. 120 N. Y., 526.

Whether it is negligent for a boy to continue to work at a machine, after
knowledge that it is defective and dangerous, is a question of fact.

Evidence of a former accident from a machine is admissible when given to.
show defect in the machine and knowledge thereof by its owner. :

It is not admissible to ask a witness whether a person was acting in a care.
less manner,

Plff, employe, boy of 13, sitting on table, tending deft's
machine, foot caught in machine, table suddenly thrown up
from sockets on which it rested by some irregular action of
machine ; machine and accompanying table in use 8 years,
during which same upsetting occurred twice, last one 3 months
prior to one in suit, at which another boy hurt; deft knew of
that; other boy testified to his accident; witness for deft testified
plff informed of other boy’s injury ; question to witness of deft.
excluded, whether plff generally careless and whether acting in
a careless manner at time of accident ; court refused to charge,
if machine dangerous or defective, and plff had knowledge
thereof and deft not guilty of actual negligence, plff could not
recover ; charged such the rule as to adults, and it applied to
minors with qualification law does not require same mature
judgment from them as from adults and whether negligent for
a boy to go on and work after he knew of defect was for jury.
Injury, leg amputated.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)
1890. ] Cases CONDENSED. 391

 

Doan v. NewsureH D. & ©. R. R. Co. 120 N.Y, 571,

The statute as to fencing by railroad companies does not apply to a case
where an open space in front of a building near the track. has been ieft
unfenced, under agreement between the company and the owner of the
building, so that access may be had to it,

The fact that an injury is committed by an engine which, though running
on defendant’s track, is not owned by it, does not excuse a defendant where
it retains possession of its tracks.

Or,

A railroad company which leases the right to another company to run trains
over its tracks under its own regulations is, so far as third parties are con_
cerned, to be considered as the owner thereof.

Plff's horses killed by engine belonging to a railroad company
which leased from deft right to run trains over its road under
deft's regulations ; horses standing in open space near deft’s
depot, harnessed to wagon from which plffs servant was
delivering flour at a mill; space between mill and track 50 feet,
about 4 feet of it belonged to mill owner, rest to deft, conveyed
by former owner of mill to deft under agreement that it should
be kept unfenced to allow access to mill; track was fenced ex-
cept in front of mill; horses frightened by train, ran across space,
on to track in front of it.

(Verd. directed for plff.—Aff. at Gen. ‘T.—Rev. new tri. ord.)

DONNELLY v. Ciry OF BROOKLYN. 121 N. Y,,

The neglect of a city, to make assessments for benefits in sone a street,
is not the basis of a right of action in a property owner to recover an
award for damages for property taken.

Question was as to what statute of limitations governed.

Kitroy v. Devt. & Hup. C. Co. 121 N. Y., 22.

A person managing a guy-rope of a vessel discharging cargo at a port,
where it is the custom for the guy-rope to be managed by the captain,
and who was directed to do so by the captain, is not a fellow-servant of
an employee of the stevedore who unloads the cargo under contract with
its purchaser.

PIff, in employ of stevedore unloading coal from deft’s boat,

injured through negligence of boy put in charge of guy-rope
temporarily by captain of the boat; coal had been sold by
392 Casrs CONDENSED. [1890.

 

deft, bill of lading specified delivery to be ‘‘alongside”, pur-
chasers had employed stevedore; custom of port (N. Y.) and
of deft’s boats for captain to handle guy-rope during process of
hoisting and transferring coal from bgat to dock. Injury, com-
pound fracture of skull.

(Verd. $5,000.—Aff. at Gen. T.— Aff.)

BUTLER v. GLENS FAuLs &¢. ST. R. R. Co. 121 N. Y., 112.

It is not necessarily negligent for a person to attempt to get on the front
platform of a moving street-car.

Piff attempted to get on front platform of deft’s moving street-

car. Injury, foot crushed.
(Verd. $1,000.—Aff. at Gen. T.—Aff.)

Ryan v. MANHATTAN Raitway Co. 121 N, Y., 126.

It is not negligent for a railroad company to allowa space of eight inches to
exist between the platforms of a car and station, whena curve in its track
at the spot requires such space to be left and the station was located at
that place for the public convenience.

Plff, passenger, stepped into open space 8 inches wide
between platforms of car and station, elevated road, station
had been placed at that place for public convenience, track
curved, platform of station curved to follow line of track, curve
convex to sides of cars, space between platform of station and
car at its €entre 3 or 4 inches, as narrow as prudence allowed,
space between platform of station and ends of car had to be 8
inches; platforms on a level; court refused to ‘charge, if jury find
the space between platforms of car and station not more than 8
inches wide where plff stepped in, it was not negligent for deft
to have such space, and plff could not recover ; court left this to
jury as question of fact. Injury, ankle sprained, leg bruised
and cut.

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord. )
1890. ] Cases CONDENSED. 393

 

HARRINGTON v. CITY OF BUFFALO. 121 N. Y., 147.

The failure for several weeks to remove snow from a sidewalk is not the
proximate cause of an accident from slipping on ice, formed the night
before out of slush resulting from warm weather prevailing for several
days previous.

Piff fell on ridge of ice on deft’s sidewalk, formed night before
out of siush, snow had fallen several weeks before, not entirely
removed, melted, slush for four days previous to accident.
Injury, hip bone fractured.

(Verd, $750.—Aff. at Gen. T.—Rev. new tri. ord.)

Fingpert v. Det. & Hup. C. Co. 121 N. Y., 207.

When the place where the servant is at work, being usually safe, is tempo-
rarily rendered unsafe by a fellow-servant’s failure to obey the master’s
instructions, the rule as to unsafe places does not apply.

Plff, car coupler, fell into hole between tracks, uncovered,
hole was a pit, in which was a wheel carrying cable for cars on
inclined plane, safe when covered ; frequently necessary to re-
move covering to make repairs, instructions duly given to replace
cover when repairs done; at this time cover removed for repairs,
co-servants failed to replace it. Injury, arm amputated.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

 

HICKENBOTTOM v. DEL. Lac. & W. R. R. Co. 122 N.Y., 91.

When a person’s injury required amputation ofa limb, it is admissible to show
that he has sensations of pain, so to speak, in the amputated limb.

A physician may be asked whether after amputation patients ever experi-
ence pain, so to speak, in the amputated limb.

Plff, passenger, boarding train, thrown from step by train’s
sudden start with jerk, fell under car; testified that after amputa-
tion of arm‘and down to trial continued to feel pains seemingly
in amputated arm and hand ; physician testified such pains not
the rule but frequently happened. Injury, arm amputated, face
badly cut, side bruised, ‘‘seat wasted away.”

(Verd. $25,000.—Aff. at Gen. T.—Aff.)
394 Cases ConDENSED. {1890.

 

CosuLIcH v. STANDARD OIL Co. 122 N. Y., 118.

Negligence producing an explosion can not be inferred merely from the
fact of the explosion, when it occurs on private property.

Or,
As a general rule negligence is not to be inferred from the mere fact of an

explosion.

Or,

The rule ves ipsa loguitur does not apply to a case of an explosion other than
those in the vehicles of common carriers.

Or,

Where one man’s property is damaged by an explosion occurring on his
neighbor’s land, negligence as a cause of the explosion can not be in-
ferred merely from the explosion itself.

Plff's vessel set on fire by burning oil thrown on it by explo-
sion of a lighter near by filled with oil, lighter moored at deft’s
wharf, set on fire by burning oil flowing into it through pipe
from deft’s refinery in vicinity, refinery still exploded, cause of
explosion not shown.

(Verd. for plffi—Aff. at Gen. T.—Rev. new tri. ord.)

Harr v. GRENNELL. 122N. Y., 371.

A shopkeeper is under no duty to his customers to keep the passage-ways at
the back of his shop, where they are not invited, free of obstructions.
Plff tripped over truck in deft's store, went to make purchase,
truck in passage-way at rear of store, salesman went there to
fill plff's order, plff without invitation followed him. Injury,
arm broken, knee cut.
(Verd. $1,900.—Aff. at Gen. T.—Rev. new tri. ord.)

 

GILLRIE v. City oF Lockrorr. 122 N. Y., 403.

Rule in Tedd case, 61 N. Y., 506, reaffirmed.
In an action arising out of a fall on ice on a sidewalk out of repair, evidence
of a fall at the same place by another person two years before is inadmis-

sible.

PIff slipped on mound of ice on sidewalk, gutter across sidewalk
out of order, water from pipe of adjoining house could not flow
off, froze ; evidence admitted that two years before another per-
son had slipped on ice at same place, no evidence gutter then
out of order. Injury, arm broken, wrist dislocated.

(Verd. $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)
1890. }. Cases CONDENSED. 395

‘BUNNELL Vv. STERN. 122 N. Y., 539.

 

 

- Itis the duty of shopkeepers to take care of customers’ articles, which they
lay one side while trying on garments.

PIff, customer, laid aside her cloak in deft’s store while trying
on a garment, deft’s saleswoman failed to look after it, stolen.
(Verd. for plff.—Aff. at Gen. T.—Aff.)

Coppins v. N. Y. C. & H, R. R. R. Co. 122 N. Y., 557.

Rule in Cone case, 81 N. Y., 206, and Ellis, 95 N. Y., 546, as to concurring
negligence of co-servant applied.

A servant who habitually neglects his duty is an incompetent servant
within the meaning of the rule requiring masters to employ competent
servants.

Piff, brakeman, injured by derailment of train, switchman
neglected to close switch; duty of latter not only to close
switches, but to examine them before trains passed and then to
signal trains, switchman in the habit of leaving post, habit
known to his superiors ; engineer of derailed train negligent in
not observing open switch. Injury, leg broken, head and breast
injured.

(Verd. $13,5c0,—Reduced at Gen. T. and as’mod. aff.—Aff.)

McQuican v. Dev. Lack. & W. R. R. Co, 122 N. Y., 618.

A person who steps upon a defective cover of a hole, knowing of the defect,
is negligent.

Plff, head brakeman, injured by slipping of cover to man-hole
on tender, stepped on it while passing from engine to car, cover
an iron plate having had circular plank 2 in. thick, called a
lining, on under side, of less diameter than hole, plank kept cov-
ering from slipping, cover had lost this plank; in issue whether
plff knew of loss, part of his duty to remove and replace it when
tender filled with water at tank; court charged that if plif
knew of cover being out of repair, it was for jury to say whether
he was negligent in stepping on it; refused to charge that if
plff knew lining was off, it was negligent for him to step on the
cover. Injury of private nature, stricture.

(Verd. $5,0c0.—Aff. at Gen. T.—Rev. new tri. ord.)
396° CasEs CONDENSED. [1890.

 

SEAMAN v, KOEHLER. 122 N, Y., 646.

It is sufficient proof of ownership of a vehicle that a person’s name 1s
printed on it, and that it has near the time in question left his premises
with his goods for delivery to his customers.

‘The negligence ofa driver of a street-cat, is not to be imputed to its con-
ductor, where it does not appear that the driver is under the conductor's
directions as to the car’s management, other than in obeying signals to
stop and go on when taking on and letting off passengers.

Piff, conductor on open street-car, injuredin collision between
car and ale wagon, on which was printed name of deft’s brew-
ing firm; it had left deft’s brewery twice that day loaded with
ale barrels, was engaged on second delivery at time of collision;
driver negligent ; relation between plff and driver of street-car
not shown except driver under orders of plff as conductor as to
stopping to let off or take on passengers, not shown driver gen-
erally under plffs orders as to managing the car otherwise ;
court charged that negligence of street-car driver could not be
imputed to plff. Injury to chest, rupture.

(Verd. $1,000.—Aff. at Gen, T.—Aff.)

Kranz v. Lone IsuAnp BR. BR. Co. 123 N.Y,, 1.

‘Where a master digs a trench for his servant to work in, he must see that
the servant is protected from its sides caving in.

Piff's intestate, 18 years of age, employee, ordered to clean
water-pipes, pipes under ground; deft’s section-man and laborers
-dug trench to get at them, afterwards deceased entered trench,
while working at pipes, earth caved in, suffocated him.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri, ord.)

ROBERTS v. STUYVESANT SAFE Dep. Co. 123 N, Y., 57.

‘When the property of a customer is demanded from a safe deposit company
under color of legal process, it must take such care in examining the process
and resisting the taking of property not described therein, and reclaim-
ing itif taken, as a prudent and intelligent man would do, if demand were
made upon him of such property under a claim of right without legal
process.
1890. } CasEs ConDENSED. 397

 

McGovERN v. CENT. Vr. R. R. Co. 123 N. Y., 280.

Where the place in which a master requires a servant to work is necessarily
unsafe, it is for the jury to determine whether the master has adopted all
reasonable precautions to shield him from the danger he is exposed to in
working there.

Whether a servant is negligent in working in a dangerous place, when the
master has failed to adopt all the reasonable precautions he might adopt
for his safety, is a question of fact,

Piff’s intestate, bin-cleaner in deft’s grain-elevator, to clean out
grain bins, bins had sloping sides terminating in hopper, grain
would sometimes stick to sides when sliding down, discharge
of grain would cease from this or other causes, deceased’s duty to
enter bin and clean it out, bins originally entered from top, deft
substituted trap-door near bottom, provided no rules for safety
of bin-cleaners; on occasion in question bin had ceased dis-
charging, deft superintendent ordered deceased to enter and
clean it, did so, found grain stuck on side too high up to reach,
fellow-workmen said not safe, better get out and get at it from
top, started to go out, ordered by superintendent to call deceased
out, did so, but grain had started preventing his escape,
smothered him.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

SAYRE v. THE STATE OF New York. 123 N. Y., 291.

Claimant’s land damaged by overflow from canal due to de-
fective construction of embankment. Question was as to measure
of damages.

CRAIGHEAD v. BROOKLYN City R. BR. Co. 123 N. Y., 391.

A railroad company is not bound to so construct its tracks that it will be
impossible for a passenger, while standing on the step at the side of an
open car, to be struck by another car.

A railroad company is under no obligation to its passengers to warn them
of the danger of riding on the step of an open car.

Plff, passenger, on step at side of deft’s open car; struck by
car of deft going in opposite direction, seventeen inches of space
between them, persons often stood in the space between the
tracks at this spot while cars passed, open cars in use for 20
398 Cases CONDENSED, [1890.

 

years, no such accident ever before. Injury, foot crushed, ribs
pressed in, arm wrenched, contusions of head and body.
(Verd. $1,000—Aff. at Gen. T.—Rev. new tri. ord.)

*

Ciry oF ROCHESTER vt. CAMPBELL. 123 N. Y., 405.

A municipality, mulcted in damages at the suit of a passer-by, occasioned
by its neglect to keep its sidewalk in repair, can not recover over from the
adjoining lot owner, even though by the municipality’s charter the duty
is imposed upon him to keep the sidewalk in front of his lot in repair.

Or,

Abutting owners incur no liabilities, other than for prescribed penalties, to
individuals or municipalities for damages arising from their failure to keep
the sidewalks in front of their premises in good repair, even though the
municipality’s charter imposes upon them the duty to do so.

‘Piff, mulcted in damages in suit of passer-by on sidewalk in-
jured by stepping into hole in its sidewalk opposite a lot owned
by deft’s testator; deft’s notified of that suit, represented by
counsel on its trial; in plf’s charter was clause, ‘‘it shall in all
cases be the duty of the owner of every lot or piece of land in
said city, to keep the sidewalks adjoining his lot or piece of
land in good repair, andalso to remove and clear away all snow
and ice or other obstruction from such sidewalk” ; charter also
provided remedy for lot owners’ neglect, viz., plff's superin-
tendent given power to repair after neglect by owner for five
days after written notice, and power to collect expenses thereof
from owner; deft’s testator omitted to keep the sidewalk in
repair, whereby such passer-by was injured, no allegation in com-
plaint that the lot owner had been notified by plffs superinten-
dent to repair sidewalk, nothing said about it in opinion; deft
demurred, no cause of action. .

(Demurrer sustained—Rev. at Gen. T. dem. overrul.— Rev.
judg. of Spec. T. Aff.)

 

Lewis v. N. Y. Lake Erte & W. R.R. Co. 123 Nz Y., 496.

‘Trains must approach public crossings with due care, whether there is any
statute in existence regulating such approach or not.

A railroad crossing on a road which has been travelled by the public for
twenty years, and kept in repair or taken in charge by the public author-
ities, is a public crossing.
1890. j CasEs CONDENSED. 399

 

PIiff, injured by train at crossing, no signals given as required
by Laws of 1854, chap. 282, road used as public highway for
twenty years, kept in.repair by and taken in charge of the public
authorities ; statute of 1854 imposing on railroad companies
duty of signals at crossings had been repealed, and when the
accident happened (May 1888) there was no statute making it the
duty of railroad co. to give such specified signals ; court in its
charge assumed as matter of !aw the existence of such duty and
submitted question of its performance; charging that highway
may be established by user; deft’s counsel excepted on ground
that crossing was not public, and asked court to charge that
‘the statutory duty of blowing a whistle or ringing a bell at
road crossings only applies to public highways, and that it
does not apply to the highway crossing in this case” ; court
charged that it did not apply to private crossings. Injury to
knee joint, deforming leg and foot.

(Verd. $3,000.—Aff. at Gen. T.—Aff.)

Hart v. Naumpure. 123 N. Y., 641,

When a master, on providing an elevator for his servant’s use, furnishes
one which, with its equipments, is of the most approved kind and pattern
for the purpose to which it is applied, and has it carefully looked after
and inspected, he has done all that the law exacts.

Where a servant knows of the irregular action of an appliance he is using,
he takes the risks of the results thereof.

PIff, employee, riding on deft’s freight sidewalk elevator, with
deft’s permission, elevator of same kind as others in general use,
built by manufacturers of approved pattern, inspected by them
every three months, no defect known to defendants; suspension
chains longer than necessary, wound irregularly about drum,
one of them slipped over on to the shaft, tipping the elevator up,
plf fell out, fell to bottom of shaft, plff knew that the chains
wound irregularly. Injury, right thigh fractured, fore-arm
broken, muscles of back lacerated, scalp wound.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)
400 Cases CONDENSED. [1890-91.

 

Swirt v. Stat. Isu. KR. T.R.R.Co. 123 N. Y., 645.

When railroad companies permit persons to use pathways across their
tracks as crossings, they must see that their trains observe due care in

approaching them.
When an infant is shown to have used some care, it is a question of fact
whether it used all that its age and the circumstances required,

Pliffs daugter, girl of 15, injured by train at private crossing,
crossing ina village licensed by deft’s acquiescence, train run-
ning at high rate of speed, said she looked both ways, waited for
train on one track, saw no other train then, crossed, struck by
another train, engineer of which saw her, gave no signal nor
slacked speed. Injury, skull fractured, collar bone and two ribs
broken.

(Verd. $575.—Aff. at Gen. T.—Aff.)

CARPENTER v. N. Y. New Hav. & H.R. RB. Co. 124.N. Y. 53.

A railroad company, which runs sleeping-cars on its road with sections
separated from the aisle only by curtains, owes a duty toits passengers to
have an employee continually on the watch in the aisle while they are
asleep.

BREWER v. N. Y. LAKE ERIE & W.R.R.Co. 124N. Y., 59.

When a messenger of an express company is being carried by a railroad
company pursuant to a contract between the companies, of which he has
no knowledge, the railroad company’s duty to him to carry him safely is
not absolved by a clause in the contract whereby all the risks of such
carriage are assumed by the express company.

Piff's intestate, a messenger of an express co., traveling on
deft’s road pursuant to contract between express co. and deft,
killed through deft’s negligence; there was a provision in the
contract between the companies whereby the messengers and
certain express matter, &c., were to be carried by the railroad
co. free of charge, ‘‘and in consideration of such free carriage
saic express company hereby assumes all transportation risks
and other liabilities whatsoever arising in respect thereof, and
agrees to fully indemnify and protect the railway company
therefrom”; not shown that the deceased had any notice of this
contract.

(Verd. $4,000.—Aff. at Gen. T.—Aff.)
1891. ] Cases CONDENSED. 401

 

PEARSALL v. West. UN. Tet. Co. 124 N.Y, 256.

A telegraph company cannot limit its common law liability for negligence
by a mere notice.

The sender of a telegram is not bound by what the telegraph company
may choose to print upon its message blanks, unless he knows the
contents or his attention is called thereto at the time he sends a message,

HOREY v. VILLAGE OF HAVERSTRAW. 124 N. Y., 273.

A municipality is under no duty to keep in a fit state for travel that part of
a street which, though laid out as a street, has never been used as such
and has been fenced off for more thansix years.

Piff, fell into excavation in what he claimed to bea street in
deft’s village, the street had been laid out, but never opened or
worked, part of it had been used by the public as a highway ;
spot where excavation made never used, fenced olf, could only
be reached from private property. Injury, leg broken.

(Verd. $450.—Aff. at Gen. T.—Rev. new tri. ord.)

Tucker v. N. Y.C.& H R,R.R. Co. 124 N.Y, 308.

An infant twelve years old is to be presumed tu be sui juris.

Plff’s intestate, boy of 12, killed at street crossing by deft’s
locomotive; high rate of speed, no signals, flagman absent ;
nine tracks at the place; only evidence that he looked was that
he stopped on one track and while shifting bag from one
shoulder to other, resting it on bumper of freight car, his face
was turned in direction from which engine coming on next
track but one, engine visible.

(Verd. $2,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Simmons v. Everson. 124.N. Y., 319.

The failure of the several owners of adjoining premises to remove or sup-
port their respective portions of a continuous front wall, left standing
after a fire and evidently unsafe, renders them all responsible for the
damages resulting from its fall, without inquiry as to whose wall it was
which directly produced the damage.
402 CasEs CONDENSED. (1891.

 

Plff's intestate, passer-by on sidewalk, killed by fall of front
wall of three houses left standing after fire, which destroyed three
adjoining stores owned in severalty by the three defendants ;
partition walls partly left standing; front walls continuous;
soon after fire front wall began to lean towards street, none of
defts removed or supported his own part of it, month after fire
it gave way near point where united with partition wall of two
of defts carrying down entire front and part of both partition
walls; none of the material from the walls of the other deft fell
on deceased ; all the walls so unsafe as to be public nuisance.

(Finding $5,000.—Aff. at Gen. T.— Aff.)

VALENTINE v. AUSTIN. 124 N. Y., 400.

The neglect of a purchaser of land to search the papers in a judgment roll,
in an action in which a notice of /is pendens was filed, is immaterial, where
the judgment dismissed the complaint and directed a cancellation of the
notice,

OLDENBURG v. N. Y. C. & H. KR. RB. R. Co. 124. N. Y., 414.

When a person is crossing railroad tracks at a street crossing, the gates
being raised after a train has gone by and the gateman shouting to go on,
and while paying attention to his steps, is struck by an engine which was
hidden from his view by cars standing on a track close to where
he passes, it is a question of fact whether he is negligent in failing, after
‘clearing the end of the standing cars, to discover the engine and stop in
time to prevent being struck,

Pliff’s intestate killed by locomotive going east at street cross-
ing ; gates closed by train going west, raised, gateman on
further side shouted to go ahead, a team went on, deceased also;
3 main tgacks to cross, middle track occupied by cars up to
crossing, obscuring sight of further main track down which
engine backing, only few seconds after train had gone by, gate-
man began to lower gate, shouted to deceased, latter paid no
attention, looking down at crossing which was rough, space
between car on middle track and engine only 3 ft., struck by
latter and rolled under; only question raised, contributory
negligence.

(Verd. $2,5co.—Aff. at Gen. T.—Aff.)
1891. ] Cases CONDENSED, 403

WIwIRowskl v. Laks SHore & Mica. 8. R, Co.
124 WN. Y., 420.
‘Where two persons are crossing railroad tracks, the fact that one of them
lovked for a train and saw nothing, is not sufficient to warrant the infer-
» ence that the other was free from contributory negligence.
When the circumstances point as much to the negligence of the deceased
as to its absence, or point in neither direction, a nonsuit should be
granted.

Piff's intestate run over at street crossing by backing engine
al veht, walking with wife, crossing several tracks, she looked
wh n first approached the tracks, but there was no evidence
tha: she looked on reaching track in question, was walking
dire. tiy behind deceased, no evidence that he looked at all.

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

'
ne i

Cooks v. HAVILAND. 124N. Y., 426.

Mere passivity in one executor, whereby he allows a co-executor to manage
the estate and thereby misappropriate the same, is not actionable negli-
gence.

Forp v. LAKE SHORE & Micu, 8. R. Co. 124 N. Y., 493. |
(ist Appeal. 117N. Y., 638.)

It is not sufficient for a railroad company tv promulgate a general rule as
to all freight that its employees must see that it is safely loaded, but if a
special kind of freight needs certain things to be done in order to make
it safe tor transit, a special rule must be made requiring those things to
be done.

On former appea! no question whether deft guilty of negli-
gence in failing to establish proper rule for loading lumber on
cars, court had charged in its favor on point that it was not
called on to establish safer mode than that shown, verdict not-
withstanding for plf. On second trial new evidence on this
point as follows; only rule of deit on subject was employees
required ‘‘to attend to the loading of all freight, whether loaded
by station men or by shippers, to see that it is safely stored and
so that it can not fall off the cars”; deft furnished stakes, its
witness testified knew stakes were necessary to secure lumber,
had not been used in this instance because distance lumber
404 Cases CONDENSED. {1891.

 

carried was short; on other railroads a verbal rule existed that
lumber must be secured by stakes and stays across top in all
cases no matter what distance was, no such rule on deft’s road,
no such instruction given to employees; special findings by jury,
among them, car improperly loaded, cause of intestate’s death,
he free from negligence, deft failed to provide sufficient rule
with respect to the loading of cars with lumber, including
the car from which lumber fell, which if faithfully observed,
would have given reasonable protection to its employees.
(Verd. $5,000.—Aff. at Gen. T.—Aff.)

CurystaL v. Troy & Boston R, KR, Co. 124 N. Y., 519.
(Ist Appeal. 105 N. Y., 164.)

The omission of an engineer to sound the statutory signals on his engine,
when near a crossing, is not the cause of an injury to an escaped infant,
where the situation is such that the signals if sounded would not have
directed the attention of its custodian to its danger.

On the new trial there was evidence to show statutory signals
not given 80 rods from the crossing ; it appeared that if they
had been given, the warning would not in the language of the
court ‘‘have been available for the protection of the infant”, it
being too young to understand it, and its mother's care over it
not being dependent on her attention being called to the train
by such signals.

(Verd. $4,875.—Aff. at Gen. T.—Rev. new tri. ord.)

ATWATER v. TRUSTEES OF VILLAGE OF CANANDAIGUA.
124 N. Y., 602.

Though by the complaint the action was to recover damages
for an alleged negligent construction of a cofferdam, whereby
plff's land was damaged by a set-back of water, there was no
proof of negligence, and the case turned upon other questions
not material here.
1891. ] Casrs ConpDENSED. 405

HOGAN v. Cent. PARK, N. & E.R. R. RB. Co. 124.N. Y., 647.

Plff's intestate, boy of 12, killed by falling under one of deft’s
cars, which could have been seen, jumped from another car
while stealing a ride, and upon being approached by the driver
ina menacing Manner.

A reversal was granted for obvious error in refusals to charge,
as well as for remarks calculated to excite prejudice in the
jury’s mind against deft. Nothing new.

(Verd. $1,600.—Aff. at Gen. T —Rev. new tri. ord.)

Note.—If it is worth while to formulate a rule for this case, it might be
stated as follows : where a boy of twelve years of age isstealing a ride ona
horse-car, and the person in charge of it, without using violence, makes a
feint as if to put him off, and the boy heedlessly jumps off just in front of a
car which he might have seen approaching, he is negligent.

 

RIORDAN v. OCEAN S.8. Co. oF S. 124 N. Y., 655.

When a person is riding on an elevator, and receives an injury because
some portion of his body gets beyond the elevator platform, and there is
no evidence to show how or why it got beyond, it can not be presumed
that he had not omitted the precautions which a prudent man would take
in the presence of a known danger.

A master is under no duty to employ a servant to take care that other
servants while riding on freight elevators are not injured.

Piff's intestate, employe riding on deft’s freight elevator up
from hold of vessel, caught between elevator and combing of
hatch, received injuries from which died ; two other men and
two barrels on elevator, ample room all three men to stand on
it and clear the hatch, no evidence:given to show how he came
to be outside of the edge of elevator platform so as to be caught
under combing of hatch, elevator in good order ascended
slowly ; no gangway man at hatch to signal winchman to raise
and lower elevator, deceased had signalled to hoist, court
charged ‘‘if the deceased was rightfully on the elevator at the
time of his injury, in the absence of the testimony of an eye
witness of the accident, the jury may assume that he received
his injury in the performance of his duty and had not omitted
the precautions which a prudent man would take in the.
presence of a known danger.”

(Verd. $2,750.—Rev. at Gen. T, new tri. ord.—Aff. judg. absol.

agst. plff.)
406 Cases CONDENSED. {1890-91.

 

ARNOLD v. DEL. & Hup. C. Co. 125 N. Y., 15.

To those servants who are employed to handle defective appliances for
purposes of repairs, the master owes no duty to see that precautions,
usually adopted to make them less dangerous in handling, are in each case
observed.

Plff, employe, duty to take disabled cars out of train and have
them drawn on to cripple track for repairs, was coupling
cars in yard so that a disabled car might be set aside for repairs,
was injured through broken draw-head on it, defect obvious,
custom in yard to prop up broken draw-heads to make couplings.
meet, omitted on this car,

(Nonsuit.—Aff. at Gen. T. —Aff.)

KERN v. DECastro & D. Suc. Rer. Co. 125 N. Y., 50.

A master is not bound to put safety appliances on a freight elevator, where:
his servants are excluded from it, and from the elevator shaft.

Plff, employe, injured through fall of freight elevator,
no safety appliance, not used for riding, only for carrying upa
bucket suspended beneath platform on a rail, its wheels resting
in notches in rail, notches worn smooth, wheels slipped out,
wedged platform against side of elevator-shaft, engineer released.
platform without first taking slack of cable up round cable-drum,
slack accumulated on stoppage of platform, latter fell, broke
cable and pulling wheel, part of broken wheel while falling down
‘shaft, deflected in some way, shot out at third floor struck plif
on back of head; had slipped out of notches and wedged
platform before, but so seldom as to only indicate carelessness
in operation ; deft had no notice that notches had worn down.
Injury, skull fractured.

(Verd#$5,000.—Aff, at Gen. T.—Rev. new tri. ord.)

WHEELER v. OCEANIC STEAM Nav. Co. 125 N. Y., 155,

Section 4281 of the U. S. Rev. Stat. was not intended to permit an owner
of a vessel to refuse to account for the articles therein enumerated when
shipped under the circumstances therein specified, but only to relieve
him from his common law liability as an insurer of them.
1891.1 CasEs CONDENSED. 407

 

PIff, passenger, delivered to deft along with trunks a box of
portraits, box of such appearance as to indicate it did not con-
tain ordinary baggage, not entered on bill of lading ; deft failed
to deliver it or explain its loss ; endeavored to shield itself from
liability under § 4281 of U. S. Rev. Stat. which provides, that if
any shipper of certain articles, among them pictures, shall lade
the same as freight or baggage without giving owner of vessel
notice of true character, and having same entered on bill of lad-
ing “ master and owner of such ship or vessel shall not be liable
as carriers thereof in any form or manner.”

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

Purpy v. Rome, W. & Oc. R. R. Co. 125 N. Y., 209.

A paper signed by a servant already in employment and without any
promise by the master of continuance of employment, or threat of dis-
charge, in which the servant agrees that the master shall not be liable in
any case to such servant for any injury by reason of the master’s negli-
‘gence, is nota bartoan action by the servant against the master to
recover damages for such an injury.

Plff, employe, injured through deft’s negligence; after had
been in its employ some time, was asked to and didsign paper,
reciting in consideration of employment and compensation to
be paid therefor, and agreeing ‘‘that in no case shall the said
railroad campany be liable to said J. R. Purdy for any damages
or injury to the person or property of the said J. R. Purdy, by
Teason of the negligence of the said railroad company”; no
promise of continuance of employment, no threat of discharge
made. Injury to back, liver, stomach and chest.

(Verd. $5,000.—Aff. at Gen. T.—Aff. )

CLEVELAND v. N. J. STHAMBOAT Co. 125 N. Y., 299.
(1st Appeal. 68 N. Y., 306.)
(2d — 89N. Y., 627.)

It is not negligent as to passengers to start a steamboat before the
gangway has been closed.
The new point on this trial was the claim made by the plff
that the deft was negligent in not closing the gangway before
‘408 Casts CONDENSED. [1891.

 

‘the boat started, (a claim that in starting the boat before closing
the gangway the deft’s servants disobeyed its standing orders
‘was held by court not to have been proved.)

(Verd. $3,000.—Aff. at Gen. T.—Rgv. new tri. ord.)

CHARLOCK v. FREEL. 125 N. Y., 357.

It is not a ground to relieve a contractor from liability for damages resulting
to a passer-by ona sidewalk from the negligence of his workman in leav-
ing a hole in it unguarded, that the contractor’s work on the sidewalk was
not the subject of a special contract, but was done under directions of
the city authorities by virtue of a clause in a contract for other work,
which reserved to the city the power to vary or extend the same.

PIff, fell at night into hole in sidewalk, left by deft’s workman
unguarded ; deft a contractor, building sewer under contract
with city, contract reserved to city power to vary and extend
the work during its progress, engineer to fix price of additional
work ; after sewer put in street, deft was directed to raise its
grade at intersection with another, did so, left sidewalk flagging
disarranged, rain caused a hole, deft failed to have it guarded.
Injury, elbow dislocated.

(Verd. $1,750.--Aff. at Gen. ‘I’. —Aff.)

Daniuns v. Sraven Is. R. T. BR. BR. Co. 125 N. Y., 407.

The mere request by municipal authorities to a railroad company to erect
gates at street crossings imposes, under Laws of 1884, chap. 439, no duty
on the company to do so,

Absence of a headlight on a locomotive is not the proximate cause of an
accident to a passer-by at a crossing, if the train is visible without it.

PIff's intestate killed at deft’s crossing in a village, village
authoriti& had requested deft to erect gates, but had not ob-
tained order of court upon application under chap, 439, Laws
1834 ; flagman there shouted to deceased “train coming”, latter
deaf, did not stop, growing dark, train had passed other way few
seconds before, headlight lighted, no headlight on train which

‘struck deceased, but it was perfectly visible, not running at ex-
cessive speed, court left to jury tosay whether absence of head-
light caused the accident. ;

(Verd, $3,500,—Aff. at Gen. T,—-Rev. new tri. ord.)
1891. ] Cases ConpDiNSED. 409

 

Kenney v. N.Y. C. & UR. BR R. Co. 125 N. Y., 422.

General language, in a contract for the carriage of persons, releasing the
carrier from any liability for damage to them, does not exempt the carrier
from liability for the negligence of its servants.

Or,

lf a carrier, in contracting for the carriage of persons, wishes to relieve
itself from liability for the negligence of its servants, it must do so by

unmistakable language. }

Plff’s intestate, express messenger on deft’s train, killed through
its negligence, travelled under contract between R. R. Co. and
Express Co. containing clause, the railroad company “‘hereby
expressly released from and guaranteed against any liability for
any damages done to the agents of the party of the second part,
whether in their employ as messenger or otherwise.”

(Verd. $4,000.—Aff. at Gen. T.—Aff.)

Roprian v. N. Y. New Hav. & H.R. RB. Co. 125 N. Y., 526.

When a person approaches a railroad crossing, the existence of an inter-
vening ditch and the fact that a train is passing on a further track,
constitute no excuse for a failure to look for a train on the nearer track.
Pliff's intestate killed by deft’s train at street crossing, familiar

with it, approached track with shawl over head and ears, no

evidence that she looked up and down track, or stopped or
listened, only evidence being that she appeared to look directly
in front-of her; track free to observation at least 7oo ft from
any point within 8 ft of track, her attention may have been
diverted by train passing on further track from which she was
in no danger, or by ditch across street 2 ft from track, or by both.
(Verd, $5,000,—Aff. at Gen, T.—Rev, new tri, ord.)
Norre.—The first half of the opinion is taken up with a statement of
what the court itself calls postulates. Vet these have been transferred
bodily to the head-note as new points decided. It seems to have become
the custom in the later volumes of the Court of Appeals reports to lengthen
the head-notes, and put into them a good part of the opinion. Rulings
which have been made years ago and have become well settled and alluded
to as such in the opinion, are repeated in the head-notes, of case alter case,
as if they were new and but just decided. If the statement of facts may
be conveniently condensed into a few words, ending in a formula. ‘for
other material facts see the opinion,” and if the opinion can be copied into
_the head-notes, what need is there to have a skilled lawyer as a reporter?

Much labor would be saved to the profession if the facts in every case were

carefully digastes ts in the statement of facts, and its rule formulated in the

head-note.
410 Cases CoNDENSED. [1891.
Nasu v. N.Y. C. & H.R. BR. R. Co. 125 N. Y., 715.

The rule that persons must not approach crossings on a trot applied.

PIff injured at private crossing, when 35 ft from it allowed his
horse to trot to and upon the trackystruck by train; atany point
within 25 ft of track it could have been seen for half a mile,
Injury to hip and knee, scalp wound, side contused.

(Verd. $2,000.—Aff. at Gen. T.—Rev. new tri. ord.)

 

SUTHERLAND v. TRoy & Boston R. R. Co. 125 N. Y., 737,

The fact that a telegraph operator was only seventeen years of age does
not by itself warrant an inference of his incompetency.

If a collision between two railroad trains would not have happened had the
engineer of one of them not been running ata forbidden rate of sped,
his doing so contributed to it, so far as injury to himself is concerned,
even though the direct cause of the collision was a mistake of a telegraph
operator.

Plff's intestate, freight engineer, killed in collision between
his train (belated) and another going in opposite direction,
one track road. [The statement of the facts in the report is not
only obscure and incomplete, but evidently inaccurate, but it
has not been thought necessary to examine the appeal book in
order to state them exactly, because the points on which the
appeal was decided render it unnecessary] ; plff claimed thatthe
accident was due to mistake of telegraph operator in taking in
red flag at his station, and that he was incompetent; only
proof to sustain allegation of incompetency was that he was
but little over 17 years old; he had had a year’s experience,
had been 3 months at the station in question discharging his
duties satisfactorily, had been employed on recommendations of
a manager of a telegraph co. and train dispatcher of another
railroad, was shown to be conversant with rules and a “first-class
operatore’ also young men generally better operators than
older men; this evidence not controverted by plff; deceased
was running at 35 miles an hour, when rules required only 15,
had he been running on schedule time he would have been com-
pelled to stop at station in question to wait for a passenger
train to pass him, and would not have met the colliding train ;
collision due to taking in of red flag and his traveling at forbid-
den speed.

(Verd. $3,000—Aff. at Gen, T.—Rev. new tri. ord.)
1891. | CasEs CONDENSED. 411

 

Manauan 0. Steinway & OH. P. R.R. Co. 125 N. Y., 760.

The evidence of a boy of twelve years of age run over by a horse-car, that
he saw it coming and had time to cross the track in front of it, is not suffi-
cient to warrant the inference that the speed of the car was increased
after he started to cross.

PIff, boy of 12, run over by deft’s ‘‘ bobtail” car while cross-
ing track in front of it, he testified saw car and had time tocross
track; only claim of negligence on deft’s part was that driver
had accelerated motion of car as plff crossed, no testimony that
horse was whipped up or speed quickened, court refused to
charge that there was no evidence that speed of horse was
increased. Injury to feet and leg, tumor.

(Verd, $2,500,—Aff, at Gen. T,—Rev. new tri. ord.)

Mernecan v. N. Y. 0. & H.R. R.R. Co. 125 N. Y., 768.

' The general rule applied, to cross a track in plain sight of an approaching
train is negligent. 2
PIff’s intestate killed by train at street crossing, train in plain
sight, backing down, deceased either did not look or heedlessly
attempted to cross. :
(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Hogan v. Smira. 125 N. Y.,, 774.

Where servants for their own convenience build a structure for doing their
work, it is not the master’s duty to see that it is properly built.

Plffs intestate, longshoreman in employ of deft, a stevedore
loading vessel with flour ; in the square of the hatch above hold
workmen had laid plank and built upon it with bags of flour
what is called a ‘‘stool,” upon which four men stood and
received the flour lowered to them in slings, and then delivered
it to other men, who stowed it away ; customary for the long-
shoremen to extend planks on which ‘‘stool” constructed to
‘some distance outside of it, that precaution omitted, deceased
struck by descending load, killed by falling into hold ; if plank
laid in usual manner life saved; deceased’s fellow-servants built
stool fof own convenience in doing their work, deft supplied
sufficient plank.

(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord.)
Al2 Casrs CoxDENSED. [1891.

 

CuLLEN v. Norton. 126 N. Y., 1.

The negligence of a foreman of a quarry in superintending the operations
of blasting in it, whereby a servant is injured, is the negligence of a
fellow-servant, not of the master. ;

Or,

An owner of a quarry, having furnished a safe place to work in and
proper appliances for blasting and a competent foreman, owes no duty to
his servants to see that his foreman carefully superintends the operations
of blasting.

a

PIff's intestate, laborer in deft’s. quarry, drilling rock for blast-
ing under foreman’s directions, 11 holes drilled, charged fuse
attached, fired. only 10 exploded, foreman examined unex-
ploded hole, found fuse unconsumed, failed to remove it, next day
foreman put men drilling holes within 2 ft of undischarged hole,
ordered deceased to drill below it, exposed fuse, in some way
ignited charge, explosion, rock cast out, fell on deceased, killed
him.

(Verd. $1,250. —Aff. at Gen. T.—Rev. new tri ord.)

‘WoopEN tv. WESTERN N.Y. & Penn. R. R. Co. 126 N. Y., 10.

Where a statute of another state gives to a widow a cause of action to
recover damages for negligently causing her husband’s death in that
state, the widow may sue in this state to recover the same.

Where under astatute of another state, which gives to a widow the right
to recover, for negligently causing her husband's death in that state,
damages unlimited in amount, a widow brings such an action in thisstate,
her recovery is limited to the amount recoverable under the Death Act
of this state.

Piffs husband killed through deft’s negligence, in Pennsyl-
vania, deft a New York corporation with portion of its road in
Penn., plff appointed in Erie co., N. Y., adm’x of deceased’s
estate, deceased left his widow and 3 children him surviving ;
statute in Penn. allows action in such case by widow, sum
recovered to go to widow and children in proportion they would
take of personal property, damages unlimited, statute otherwise
similar to our Death Act. Suit not brought by plff in her re-
presentative capacity. Demurrer, no cause of action.

(Dem. overruled. —Aff. at Gen. T.—Aff.)
1891. } Cases CONDENSED. 413

 

HUNTER v. COOPERSTOWN & Susq. Va. R. R. Co.
126 N, Y., 18.

(Ist Appeal. 112 N. Y., 371.)

Where a passenger, who is in a safe position and under no stress of
circumstances, attempts to get on a train which is moving, no matter how
slowly, and the situation is obviously such that a mis-step may have
serious results, he is guilty of negligence.

New fact, train going only 2 miles an hour instead of 4 to 6,
as proved on former trial.
(Verd. $5,000.—Aff, at Gen. T.—Rev. new tri. ord.)

BUTLER v. TOWNSEND. 126 N. Y., 105.

A scaffold is not a place but an appliance.

Rule in Devlin wv. Smith, 89 N. Y., 470, as to non-liability of master for
defective scaffold built under contract, applied.

The fact that a master, whose servants are to use a scaffold built under con-
tract, directs his foreman to see that it is safe, does not render him liable
for damages resulting from its being unsafe.

Plff’s intestate, caulker in deft’s employ, killed by breaking of
a staging erected around hull of vessel which he was caulking ;
staging erected by a gang of men called ‘“‘lumpers” under
direction of foreman, foreman had contracted with defts to do
the work of ‘‘lumpers” on the vessel at so much per sheet of
metal run on, this included the erection of the staging, foreman
had power to employ and discharge men, defts had nothing to do
with the men, were to furnish the materials for the staging and
pay for the whole work of the “lumpers” at the rate above
stated, the planks which broke had been examined, condemned
and marked as unsafe, but through negligence of one of the
“lumpers” was used; defts had directed their own foreman to
look after safety of the scaffold.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri, ord.)

SHipman v. BANK OF STATE OF N.Y. 126N. Y., 318.

The failure of a depositor in a bank to discover that his confidential clerk
is obtaining money from his bank by means of forgeries of endorsements
of checks drawn by him is not necessarily negligent. ’

‘
414 Cases CoNDENSED. ' [1891.

 

KeELvVER v. N. Y. Caic. & St. L. BR. BR. Co, 126 N. Y., 365,

Rule in Shepard v. Buffalo, N. Y., &c. 35 N. Y., 641, re-atfirmed.

In an action to recover damages for killing cattle, which have strayed from
an adjoining farm on to the unfenced tracks of a railroad company and
thence on to the unfenced adjacent tracks of the defendant, ‘evidence, that
the space between the tracks of the two companies was not wide enough
to make it safe for passengers and employes to have a fence there, is
irrelevant.

Piffs cattle strayed from adjoining farm, over tracks of two
‘other roads, on to deft’s tracks and were killed by engine on
latter ; at spot in question five companies had ‘parallel tracks,
deft’s in the centre, no fences between deft’s tracks and the next
ones on either side, only seven feet between such tracks, leaving
space of only three feet between passing trains, no fences be-
tween farm ahd tracks. of other co., nothing to’ prevent cattle
from straying from farm on tracks; evidence that it would have
been dangerous ‘to passengers and employees for deft to have
erected a fence betweén its own tracks and those of the next
road excluded.

(Verd. for plff.—Aff at Gen. T.—Aff.)

Nore. —This case illustrates how much unnecessary work the Court of
Appeals does in its desire tu do justice.io litigants. The court consumes
three pages of its opinion on a point which had already been decided 25
years before, as to the duty of parallel roads in regard to fencing. Why
repeat that work?

TIMLIN v. STANDARD OIL Co. 126 N. Y., 514.

A lessor, who knowingly lets premises in -a dangerous condition, is
responsible for the damages resulting from such condition.

A lessee leasing premises, which are in adangerouscondition, is notrespon-
sible for the damages resulting therefrom, unless he had knowledge
thereof,or time enough has elapsed after the letting for him to have
acquired such knowledge by the exercise of reasonable diligence.

Plff's intestate, working on railroad track, killed by falling
wall on adjoining premises, wall 111 ft. long, 60 ft. of it fell,
easterly wall of a shed used at the time for storing oil, had been
out of plumb and dangerous for years, premises let by owner
to deft the Acme Oil Co., deft the Standard Oil Co. admitted
that it had been owner of the lease from its execution, and that
its liability was to be determined as if its name was in lease, no
1891. ] Cases CONDENSED. 415

 

evidence of any assignment or sub-lease to it ; northern half of
premises being part where wall fell sub-let by Standard and
Liscomb Oil Co. to defts Murphy & Liscomb; officers of
Standard Oil Co. knew or ought to have known at the time of
dangerous condition; no evidence that Murphy & L. knew or
had notice of it.

(Verd, $5.000.—Aff, at Gen. T.—Aff. as to corporation defts,
Rev. new tri. ord. as to individual defts.)

WHITTAKER v. DEL. & Hup. ©. Co. 126 N. Y., 544.

A master must not allow the rules which he has adopted to fall into

disuse.

Whether under a rule which says that all stations must be approached
cautiously, the running of ‘an engine into a railroad yard at seven miles
an hour on a dark and foggy night was such want of care and caution, as
contributed to a collision with a standing engine, having no light that
could be seen, is a question of fact.

Plff's intestate, fireman on freight train running into yard
ahead of time under orders, night dark and foggy, killed in
collision with engine standing awaiting orders on main track;
deft’s rule was, engines while awaiting orders, not to.stand on
main track ; it was shown that for atleasta year, deft’s engineer
had been in habit of disobeying this rule, freight train running
into yard at seven miles an hour, rule was that “all engineers
must approach and pass all stations cautiously, whether they
are to stop or not.”

(Nonsuit.—Rev. new tri. ord. at Gen. T.—Aff judg. absol.
agst. deft.)

CREGAN v. MARSTON. 126 N. Y., 568,

Where the appliances furnished by the master are of simple character,
quickly wearing out, and the master keeps on hand an ample supply of
them for the servant's use upon call by him, heis not bound to keep daily
watch to see that when such an appliance becomes worn out, it shall at

once be replaced by another.

Plff’s intestate, employee, killed by fall of bucket of coal, while
loading coal on vessel by aid of derrick, rope broke; detts fur-
nished proper ropes, bought large quantity, cut it up in lengths,
called falls, kept them in dry store room under lock and key;
416 CasEs CONDENSED. [1891.

when new fall needed, word sent to office, at once supplied,
life of fall 14 to 29 days, no telling just how long, might be
sound in morning and become frayed and dangerous before
night, workmen could tell when new fall needed, they examined
the fall daily, custom of engineer speciaily to do so, had ex-
amined fallin question day or two before, thought it safe; court
charged duty of master to watch rope and its changes of condi-
tion, engineer his deputy for that purpose, and negligence of
engineer ifit existed, was that of master.
(Verd $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

LEE v. Vacuum O1L Co. 126 N. Y., 579.

This was a controversy as to an attorney’s lien, growing out
of a settlement by deft with p/ff, made subject to the lien, after
judgment upon a verdict of $5,000 for negligently causing death
of plff’s intestate, her husband.

Fenton v. Seconp AVE. R. RB. Co. 126 N. Y., 625.

If a boy suddenly darts across a street railroad track ahead of a moving
car, he takes the risk of getting over ahead of it.

Pliffs intestate boy of ten, run over by deft’s street-car be-
tween the crossings of a cross street; as car came up, boy darted
from northwest corner diagonally to southeast corner, stumbled
on westerly rail, fell on track twenty feet ahead of horses, going
six miles an hour, brakes not applied until horses struck boy,
no evidence that by exercise of all the vigilance that law requires
of drivers under such circumstences, driver could, after boy fell,
have agrested car in time.

(Verd. $3,200.—Aff, at Gen. T.—Rev. new tri. ord.)

Corcoran v. DEL. Lack. & Wsst. R. R. Co. 126N. Y., 673,

The fact, that rules do, not contain a specific prohibition against doing a
certain thing, does not make them amenable to the criticism of being insuf-
ficient, if such prohibition can be fairly gathered from them.
1891. ] CasEs CONDENSED. 417

 

When a servant of a railroad company is injured in a collision between two
cars, on one of which he is at work, it beingstationary, itis error to refuse
to charge that if the cause of the accident was the act of another servant,
in having the switch opened and letting the other car come in contact
with that car, he knowing that the plaintiff had gone to the car to repair
it, the plaintiff can not recover.

PIff, car repairer, at work repairing car on repair switch, had
red flag out ; through negligence of assistant yard-master, who
knew he was there, another car was sent on to the switch, col-
lided with car being repaired, plff injured ; among deft’s rules,
were, ‘‘men repairing cars must see for themselves that they
are protected by a flag when under and between thecars,” “a
red flag by day, red light or fire on track by night indicates
danger; on perceiving such, the engineer shall immediately stop
his train before passing such signal,” “all employees of the co.
are expected and required in all cases to exercise greatest care
and watchfulness to prevent injury or damage to person or prop-
erty: vigilance and watchfulness insure safety, in all cases of
doubt adopt the safe course;” another provided that every em-
ployee must acquaint himself with rules and keep a copy, gave
directions where to get them and how new ones were promul-
gated; it was left to jury to say whether rules insufficient in not
in terms prohibiting moving of cars upon the one where red
flag was ; court refused to charge that if cause of accident was
act of assistant yardmaster, knowing that plff had gone to this
car to repair it, in having switch opened and letting the other
car come in contact with it, plff can not recover. Injury, leg
crushed,

(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

McDONALD v. STATE OF NEw York. 127 N. Y,, 18.
EastMAn v. SAME.

A witness may not be asked whether he left a bridge safe for the ordinary
uses of a highway bridge.

When a bridge has been changed, an expert can not be asked whether a
load of a particular weight was an excessive one for the bridge as origi-
nally constructed.

(Two cases arising out of same accident, tried together)
Claimants injured by fallof bridge over state canal, were rolling
two heavy mill stones over it, united by axle-tree so short that
they were only 21 inches apart, bridge gave way; bridge erected

.
418 Cases CONDENSED. [1891.

five years before, original construction changed a few months
before and one of the persons making the change was allowed
to testify that he left the bridge safe for the ordinary purpose of
a highway; a bridge builder was allowed to testify that stones
like those in question were an exceSsive load, too large for the
bridge to carry as originally constructed.

(Award against claimants—Rev. new hearing directed).

 

Wurryey v. TOWN oF TICONDEROGA. 127 N. Y., 40.
A highway, in which a road scraper has been carelessly left over night, is a

defective highway.

An answer, which denies the allegations of a complaint except as therein
admitted, and goes on to allege that due care was used in doing a certain
thing alleged in the complaint to have been negligently done, is to be
construed as admitting the fact that the thing was done, and as denying
only the imputation of negligence. 7

Pliff, driving at night in street of village in deft’s town, thrown
out of cart in collision with another vehicle due to deft’s road
scraper having been left in the street; ‘‘the several towns in
this state shall be liable to any person suffering the same, for
all damages to a person or property by reason of defective high-
way or bridges in such towns, in cases which the commissioner
or commissioners of highways of said towns are now by law
liable therefor, instead of such commissioner or commissioners
of highways.” Laws 1881, ch. 700, 1; complaint alleged that
highway com’rhad carelessly placed and left scraper inhighway;
answer alleged he had used due care in placing and leaving it
pleadings put in evidence, Injury, concussion of spine, leg
paralysed.

(Verd. $2,200.—Aff. at Gen. T.—Aff.)

e
Brapy v. MANHATTAN RaItway Co. 127N. Y., 46.

Evidence of similar accidents at other places under defendant’s control is
not admissible to show the dangerous character of the place in question
without proof of similarity of the places.

Or,

Similarity of conditions as well as of accident is necessary to the admissi-
bility of evidence of other accidents at other places under defendant’s
control.

Or,
1891. ] Cases ConDENSED. 419,

 

If, for the purpose of showing that a carrier is negligently maintaining a
dangerous place at a station, it is sought to show that similar accidents to
the one in question have occurred at other stations, similarity of condi-
tions as well as of accident must first be shown.

PIff, passenger, fell between platforms of car and station
while alighting, evidence of similar accidents at other station
admitted to show that the space between the platforms was un-
safe and dangerous to passengers, and to charge defts with
notice thereof, but the conditions were not similar, the space
being wider and the time of day not the same. Injury, leg
‘broken, womb injured.

(Verd. $5,000.—Aff. at Gen. T. —Rev. new tri. ord.)

 

‘

STODDARD v. VILLAGE OF SARATOGA SPRINGS.
127 N. Y., 261.
A municipal corporation may be enjoined from continuing to maintain an

outlet to a sewer, so negligently located as to cast sewage upon adjoining
premises.

McNALLY v, Crry oF Conors. 127 N. Y,, 350.
When a statute says that a municipality shall not be liable for damages sus-
tained by reason of its highways being unsafe, unless its officials have
actual notice of its condition at least a day before the accident, it means
what it says.

PIff, passer-by, slipped on ice on deft’s sidewalk; charter
amended by chap. 183, Laws 1881, provided that City of Cohoes
not liable for any damage on account of any street, highway,
bridge, culvert, sidewalk or crosswalk in said city being out of
Tepair, unsafe, dangerous or obstructed by snow, ice or other-
wise unless actual notice thereof given to common council or
street superintendent 24 hours previous to such damage; no
evidence that common council or street superintendent had any
actual: knowledge of the ice in question ; ice had been on walk
for three weeks, covered with ashes, superintendent had a few
days before seen it in this condition, after that rain fell, froze,
and ice on which plff slipped thereby formed.

(Nonsuit.—Aff. at Gen. T.—Aff.)

Norsg. —The City of Cohoes has, as appears by the reports, been the most
negligently administered city in allthe state. It seems to have found a
new way of escaping the penalty, by making the law to wink at the care-
lessness of its officials.
420 CasEs CONDENSED. (1891.

 

PEIL v. REINHART. 127 N. Y., 381.

The landlord of a tenement house must keep its halls and general stairways
in suitable condition for safe passage by his tenants.

A tenant in a tenement house is not bound to stop using the general stairway
because there are holes in the carpet.

It is a reasonable presumption that the stair carpet in a tenement house is
in the same condition in the morning that it was the evening before.
Piff, tenant of room in deft’s tenement house, foot caught in

hole in carpet on general stairway, fell; evening, hall lighted ;

carpet in holes for months, deft notified, promised to remove it,
plff knew of its condition ; evidence of condition of stair carpet
on following morning admitted. Injury, arm, shoulder and
back injured, miscarriage, womb injured, shock, impairing sight.

(Verd. $500.—Rev. at Gen. T. new tri. ord.—Rev. judg. on
verd. aff.)

WOODMAN v. STATE OF NEw York. 127 N. Y., 397.

When the state directs a canal to be abandoned, sold and conveyed, if it
permits the bridges over it to remain after the abandonment, it must keep
them in fit state for travel until the sale or conveyance.

Claimant, driving load of hay over bridge of state canal,
injured by fall of bridge, due to breaking of decayed beam,
negligently used in construction of bridge; by Laws of 1877,
chap. 404, it was provided, that part of canal should be aban-
doned after May ist, 1878, act contained provisions for selling
and conveying it to adjacent owners provided latter would
release state from all obligations to maintain bridge and from
liability for damages arising from abandonment, also that no
person should have any claim by reason of the abandonment
or discontinuance of canal ; accident happened in 1880, no sale
or conveyance had under the act. Injury to head and face,
nose bgoken, spine injured, sight impaired, ($310 for medical
expenses and injury to horse and wagon.)

(Award $2,310.—Aff.)

JENNINGS v. GRAND TRUNK R’way or C. 127 N. Y., 438.

Potatoes shipped over deft’s road to a point beyond its line,
under through contract ; carrier beyond deft’s line neglected to
deliver all, delayed delivery of the rest; agreement in bill of
1891. } CasEs CONDENSED. 421

 

lading exempting carrier for delay generally, but silent as to
exemption for delay occasioned by negligence; before shipment,
‘contract as to through rates made by letters; at time of ship-
ment shipper’s agent not specially authorized thereunto, signed
shipping bills on deft’s blanks, purporting to be requests that
deft receive the property subject to terms thereon stated, which
limited deft's common law liability ; shippers had no knowledge
of these shipping bills, knew of general custom of railroad com-
panies to require them and that they contained terms and
‘conditions ; bills of lading sent by defts to shippers after goods
hhad gone on. Report of referee in plff’s favor affirmed.

KuMMEL v. GERMANIA SAVINGS BANK. 127 N. Y,, 488.

Ifa savings bank is negligent in paying its depositor’s money to a stranger,
who presents his passbook, it is not protected by a clause in the passbook
which provides that it shall not be responsible for payments to a person
who presents the book. :

-Or,

A Tule in a savings bank passbook, providing that it shall not be respon-
sible for any fraud committed on its officers in producing the passbook
and drawing money without the knowledge or consent of the owner, does
not relieve the bank from the duty of using care in making payments.

STEWART v. STONE. 127 N. Y., 500.

‘The mere fact that property in possession of a bailee was destroyed by fire,
does not warrant a presumption that he was negligent in its care.

Getty v. TOWN OF HAMLIN. 127 N. Y., 636.
Rule as to inadmissibility of subsequent acts applied.

Piff, driving on to deft’s bridge, went over embankment, not
guarded, cave in at approaches due to retaining wall out of
repair; evidence admitted as to what highway com's did to fix
bridge after the accident. Injury, head and shoulder injured,
concussion of brain.

(Verd. $2,000.—Aff. at Gen. T. Rev. new tri. ord.)
422, Cases ConDENSED. (1891.

WILLIAMS v. DEL. Lack. & W. R. BR. Co. 127 N. Y.. 643.

Plff injured through deft’s negligence. Injury, hand ampu-
tated.

(Verd. .$4,000,—Rev. at Gen. T. new tri. ord.—App. dis-
missed. )

No question but one of practice.

 

Puuuiies v. N. Y. OC. & H. R. RB. R. Co. 127 N. Y., 657.

The mere fact that a rein broke in an effort to control a frightened horse is
not evidence that it was a defective one.

Rule in Ring case, 77 N. Y., 83, as to two causes applied.

Rule in Robinson case, 66 N. Y., 11, as to negligence of driver not imput-
able to passenger, applied.

PIff injured by being thrown from wagon driven by another
over deft’s crossing, gates each side of tracks, wagon had passed
through one gate, crossed tracks, horse under other gate, gate
lowered hit his back frightened him, became unmanageable,
rein broke, horse turned, upset wagon; court refused to charge
‘if the proximate cause of the injury of the plff was the break-
ing of a defective rein, the plff is not entitled to recover”, also
refused two other requests, but recalled jury and charged them.
Injury to spine.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

STOUTER v, MANHATTAN R. Co. 127 N. Y., 661.

A physician, who has attended an injured person, may state his opinion that"
an absgess, which formed some three months after, was a result of the
injury.

Plff, passenger, injured in collision of her car with engine on
side track ; physician who had attended her day after injury
allowed to state that after birth of child 3 months after injury,
abscess in breast formed, caused pain, had to be lanced, was in
region where plff was bruised by accident and near fractured.
rib, and in his opinion abscess caused by that bruise.

(Verd. $8,000.—Aff. at Gen, T.—Aff. )
1891, ] Cases CONDENSED. 423

 

ALEXANDER v. ROCHESTER 0. & B. R. RB. Co. 128 N.Y., 13.

High speed at which a street-car is driven is not the proximate cause of an
injury to a passenger, resulting from the unexpected act of a driver ofa
vehicle on the other track in suddenly turning out of it when abreast of
the car.

PIff, passenger, struck by end of lumber on lumber wagon
penetrating side of street-car, wagon had approached on oppo-
site track, when abreast of car its driver suddenly turned out,
ends of boards swung against car, car was being driven at rapid
rate, driver happened to see wagon turning, braked up at once.
Injury, concussion of spine.

(Verd. $8,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Reiss v. N. Y. Srzram Co, 128 N. Y., 103.

A person who furnishes steam in a building for the purposes of heat and
motive power through pipes from a central reservoir or station, is not an
insurer against damage from escaping steam,

The mere fact, that an appliance for the furnishing of steam in a building
gave way, does not warrant an inference of negligence in providing a
defective appliance.

Plffs’ goods injured by steam escaping from service valve in
deft’s steam pipes through which steam was furnished by deft
to the building in which plffs were tenants, pipes put in by
deft, connection made and tested on a Saturday, store closed till
following Tuesday, on which day soon after opening of store
bonnet on service valve blew off allowing steam to escape,
valve bought of manufacturers of high repute, no evidence of
any defect or want of care in its manufacture, no such accident
had happened before in deft’s business, no evidence of negli-
gence except by way of inference from fact of bonnet being
blown out.

(Verd. for plff.—Aff. at Gen. T.—Rev. new tri. ord.)

 

DEMAREST v. FLACK. 128 N. Y., 205.

Plff, while riding on a toboggan slide belonging to the
“« America’s Winter Carnival Co.”, injured through negligence ot
424 CasEs CONDENSED. (1891.

 

its employees. The question was whether defts were to be
considered as partners or stockholders of a corporation formed
in another state.

(Nonsuit—Aff. at Gen. T.—Aff.) 7

GATES v, STATE OF NEw York. 128 N. Y., 221.

A claim for damages which had been mailed to the canal appraisers, but not
received, and which had never been filed in their office, was not included
in the transfer to the Board of Claims of claims pending before the Board
of Canal Appraisers.

An act of the Legislature authorizing the Board of Claims to make an award
on aclaim, which had not been filed in the proper office within the time
within which suits as to such matters between private citizens must be
brought, is unconstitutional.

Claimant, a laborer upon state canal, repairing bridge upon
it, bridge gave way from structural weakness ; by the act then
in existence the canal appraisers had jurisdiction to hear and
determine such claims against the state, but the proceeding had
to be begun by filing a claim in their office, claim mailed to
canal appraisers within two years of time of accident, not
received, no claim filed; 9 years after accident legislature
passed act directing Board of Claims to hear this claim and
award in like manner as though claim filed within time now
provided by law.

(Award agst. claimant. —Aff. )

 

WALLACE t, Vacuum O11 Co. 128 N. Y., 579.

When a medical expert is asked to give his opinion, “from what he has learned
of acas€ in all ways,” asto whether ‘‘a certain trouble from an injury is
likely to improve,’’ an objection to the question which is only general, and
which fails to point out that it calls for an opinion based upon knowledge
not solely derived from the facts in evidence, and also for a statement of
possible consequences, is not available on appeal.

Plff injured by explosion of naphtha, which had leaked into
city sewer from defective pipe of deft;his physician was allowed
to testify that in his opinion “trouble of heart and spinal trouble
not likely to improve”; this was in answer to a question for his
1891.] Cases CONDENSED. 425

 

opinion based on age of plff, and history of his case, ‘‘ and
what you have learned of itin all ways.” Injury, head, face,
arms, shoulders burned.

(Verd. $14,100.—Aff. at Gen. T.—Aff. )

Moy.ay v. Second Ave, R. R. Co. 128 N. Y., 583.

It is not negligent for a man in good health and unencumbered to attempt
to enter a slowly moving street-car.

It is not negligent for the persons in charge of a street-car to omit to bring
it to a full stop, in order to take on a man in good health and unen-
cumbered.

If there is peril from a passing vehicle in boarding a slowly moving street-
car, the passenger takes the risk,

PIff, passenger, injured while boarding slowly moving street-
car, open car, conductor had signalled to stop, slacked up, did
stop, nearly stopped, plff got on near center, started up fast,
before he got inside of car hit by hub of truck, plff 26 years old.
Injury to back, causing chronic pleurisy.

(Verd. $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)

CoHEN v. THE Mayor &c, oF N. Y. 128 N. Y., 594,
(Ist Appeal. 113 N.Y., 532.)

No new question.
(Verd. $4,583.33.—Aff. at Gen. T.—Aff. with ro per ct. dam.)

BARRETT v. SMITH. 128 N. Y., 607.

A driver of a vehicle must not drive at a rapid rate through a crowd of children

within a few feet of a wall along a street where there is no sidewalk.

Plff, girl of four, hit by horse of deft’s truck, driven along
avenue faster than ordinance allowed; several children had
gathered at high wall on side of avenue to watch a bird, no
sidewalk, children could be seen several blocks off, driver drove
within 3 or 4 feet of the wall, children scattered, plff frightened
took wrong way to escape.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)
426 Cases CONDENSED. [1891.

 

ABEL v. Deu. & Hup. C, Co. 128 N. Y., 662.
(ist Appeal. 103 N. Y., 581.)

In providing for the safety of a car-repairer while at work on cars ona
tracle, a railroad company should make a, proper rule governing the taking
down of the danger signal as well as the putting it up.

In considering whether a master has properly provided for the safety of his
servants by adequate rules, a jury is not bound to find a particular rule
to be adequate or inadequate because some other master has adopted or
rejected it.

New evidence related to deft’s rules to protect car-repairers
and what was done under them; there was rule that red flag
meant danger, no rule charging any particular employee with
duty of putting up red flag when repairers at work on cripple
track, nor of taking it down; the flag which had been up to
protect deceased was taken down by some one, by whom not
shown ; rules of other companies as to protecting repairers put
in evidence ; court charged in effect jury to determine in view
of evidence and of rules of other companies whether deft had
discharged its duty and were not to find a rule proper or
improper because some other company had adopted or
rejected it.

(Verd. $3,000.—Aff. at Gen T.—Aff.)

McQuican vr. Dev. Lack. & W. R. R. Co. 129 N. Y., 50.

There is no power in the court to compel the plaintiff.in a suit to recover
damages for a physical injury to submit to « surgical examination of his
person.

Or,

In a suit to recover damages for a physical injury, the court has no power to
compel the plaintiff to submit to a surgical examination of his person.

Action to recover damages for physical injuries resulting from
negligence.

Moti8n by deft for an order to compel plff to submit to a sur-
gical examination of his person by surgeons appointed by the
court with a view of enabling them to testify as to the existence
and extent of the alleged injury, and for the appointment of a
receiver, under whose directions such examination should be
had.

(Motion denied.—Aff. at Gen. T.—Aff.)

Nore.—Such examination can now be had. See amendment of 1893, to
§ 873 of the Code. ’ ;
1891-92. ] CasEs CONDENSED. 427

O’NzIL v. Dry Dock E. B. & B. R. R. Co.
129 N. Y., 125.

Evidence by a driver of experience stating the distance within which under:
given circumstances, a one-horse vehicle can be stopped, is competent
but its admission is not to be encouraged. E

A street-car at a crossing has no right of way over a vehicle coming down
the other street.

 

Piff, passenger, injured in collision between car and a truck,
due to concurring negligence of both defts ; evidence on behalf
of deft railroad co, by an expert, a truckman of large experience
in driving, to the effect that a truck under the circumstances in
question could be stopped within 3 or 4 ft, admitted .against
objection of individual deft, the truck owner ; car was crossing
and truck was going up a street ; court refused to charge on
behalf of railroad co. that the car in crossing the street had the
right of way, which truck-driver was bound to respect. Injury,
teeth knocked out, face injured, arm, shoulder, side and hip
bruised and sprained ; shock, deafness ensuing.

(Verd. agst both ¢1,000.—Aff. at Gen. T.—Aff.)

Muuuiaan v. N. Y. & Rock. B. R. RB. Co. 129 N. Y., 506.

The arrest by a police officer, with the aid of a carrier’s ticket agent, of a
passenger on suspicion of his having given a counterfeit bill to the ticket
agent is not, in the absence of authority by the carrier, a breach by the
carrier of any duty to the passenger.

Plff, passenger, arrested by police officer on mistaken
suspicion of having given a counterfeit bill to deft’s ticket agent.
in payment for ticket, agent assisted in arrest, no authority from
deft to do so; supposed bill to be bad, took it to aid police.

(Verd. $1,000.—Aff. at Gen, T.—Rev. new tri. ord.)

N. Y. Lake Erte & W.R. BR. Co. v. THE ATLANTIC REF. Co.
129 N. Y,, 597.

When a shipper of freight unloads his own freight from a car on a switch,
the carrier is not bound, as between himseJf and the shipper, to see that
the shipper leaves the car in a safe state for travel on its ‘main track.

A railroad company is not bound to keep a watchman at a switch where
freight is being unloaded for building operations going on near by.
428 Cases CONDENSED. [1892.

 

Where lumber has been safely transported on a flat car, partially unloaded,
and left in an insecure condition over night, the fact that a flat car was
used rather than a regular lumber car, is not the proximate cause of an
accident resulting from the lumber being blown on to the main track,

Piff's express train wrecked in collision with lumber blown
on to main track from car on siding ; lumber belonged to deft,
had been loaded by it on plffs car, transported by plff to its
destination, partially unloaded by deft, left in loose, insecure
condition over night, storm came up, blew it on to main track,
plffs express train ran into it about midnight ; evidence that
the plff had no watchman at this siding where building of oil
tanks going on ; also that plffs car in which lumber transported
was not a lumber car excluded. :

(Verd. for plff.—Rev. at Gen. T. new tri. ord.—Rev. judg. on
verd. aff.)

McSuHprery vr. TRUSTEES OF VILLAGE OF CANANDAIGUA.
129 N. Y., 612.

Rules in Conrad and Weet cases in 16N. Y., 158, 161, in Salisbury case, 94
N. Y., 27, and others applied.

if the trustees of a village, who by statute are made the commissioners of
highways for the village, appoint another person as street commissioner
to superintend and examine the streets, notice to him of a defect is
notice to the corporation,

Plff, injured by fall through defective grating in deft’s side-
walk; it was claimed by deft that under its original charter its
trustees were under no obligation to repair its sidewalks, but
however that might be, by laws of 1854, chap. 352, it was provided
that deft’s trustees should be commissioners of highways, and
among other things have power to repair sidewalks; it was
shown that a person who was employed by the trustees to ex-
amine the streets, and who was called the street commissioner of
the village had knowledge of the defect in question. Injury, foot
sprained.

(Verd. $1,500.—Aff. at Gen. T.—Aff.)

 

FINNELL v. Deu. Lack. & W. R. R. Co. 129 N. Y., 669.

A railroad company owes no duty to its employees to ballast its tracks so as
to make them safe for brakemen to walk on while coupling cars.
1891. ] CasEs CONDENSED. 429

 

It is negligent for a brakeman in coupling cars to walk on a track behind

a backing engine.

Plff, brakeman, injured while coupling car on branch track,
engine backing slowly under his directions, got down from
tender, walked on track, behind it, taking link out of draw-head,
track not ballasted, caught foot between two ties, wheels of
tender went over his legs, day time, track in full sight, no neces-
sity to have walked on track. Injury, both legs amputated.

(Verd. $8,500.—Aff. at Gen. T.—Rev. new tri. ord.)

Morrison v. BROADWAY & 7TH AVE. R, RB. Co.
130 N. Y., 166.

Whether » man seventy years of age was negligent in attempting to board
a street-car, before it had fully stopped for him to get on, is a question of
fact.

Whether the starting of a street-car before a passenger has had full oppor-
tunity to get on was negligent, is a question of fact.

PLff, passenger, injured while attempting to board deft’s car, 70
years old, signalled car to stop in crowded street, car slacked
up, did not fully stop, horses walking, plff took hold of rail,
put his foot on step, driver let brake go, car started with
a jerk, plff's foot thrown off step, he dragged some distance,
holding on to rail, carried nothing in his hand. Injury to
muscles of right arm, permanent.

(Verd. $5,000.—Aff. at Gen. T.—Aff.)

KEANE v. VILLAGE OF WATERFORD. 130N. Y., 188.

The fact that a medical expert testified that he has never known a fall to pro-
duce a certain disease, does not make it error to submitto a jury the
question whether a fall has produced it, oth -r experts testifying that it
might, and the injured person having the symptoms after and not before
the accident.

PIff, passer-by at night, slipped on ridge of ice formed on side-
walk, several inches high, been there a week, formed from snow
of two snow storms unremoved; after accident plff found to
have symptoms of certain disease, in regard to which, medical
experts differed as to whether it ever came from a fall, had none
430 Cases CONDENSED. (1891.

 

 

of the symptoms before, the court left it to the jury whether the
fall was the cause. Injury to spine, wound on head.
(Verd. $2,600—Aff. at Gen. T.—Aff.)

*

DoLLARD v. KOBERTS. 130 N. Y., 269.

A landlord of a tenement house is bound to keep the ceilings of the hall-
ways in repair.

A girl in a tenement house, in which the ceiling of the hallway is loose and
likely to fall, is not bound to keep this continually in mind, while passing
under it.

A parent may recover for prospective as well as past loss of services of
a child.

Pliff's daughter 14 years, injured by fall of plaster from ceiling
of hallway in deft’s tenement house, hallway on ground floor,
plff and family lived on top floor, hallway their only means of
access to their rooms; water had leaked through, plaster had
fallen, struck daughter before; deft’s agent, who collected deft’s
rents and attended to repairs, had been told of this, had promised
to repair ceiling ; evidence showed loss of services likely to con-
tinue. Injury, concussion of brain and spinal cord, shock, sight
impaired.

(Verd. $1,118. —Aff. at Gen. T.—Aff.)

BABBAGE v. POWERS. 130N. Y., 281.

‘Where a vault under a sidewalk has existed for several years with the knowl-
edge and acquiescence of the city officials having charge of the street,
permission to construct it must be conclusively inferred.

Plff, passer-by, injured by fall into vault under sidewalk, flag-
stones broke under his weight, admitted that deft was not
negligent, no express consent from city authorities to construct
vault shown, the city authorities had known vault was being
built and had acquiesced in its existence for nine years.

(Nonsuit.—Aff. at Gen. T.— Aff.)
1891. ] Cases CONDENSED. 431

 

DuBois v. DECKERT. 130 N. Y., 325.

Failure by a patient to obey his physician’s instructions does not relieve the
physician from the consequences of previous unskillful treatment.

A physician, who is paid to treat the poor without charge to them, does not
render them gratuitous services,

A physician, who renders professionalservices to a person, is bound todoso
with skill and knowledge, without reference to the fact whether there is
any contract relation between them.

Plff’s foot crushed, immediate amputation needed, taken to
city almshouse; deft physician of almhouse paid by city, negli-
gently postponed amputation, then amputated above ankle joint,
gangrene set in, then amputated at knee joint; through omis-
sion to save flap enough to cover end of leg, did not properly
heal, bone protruded; after second amputation plff did not obey
all deft's instructions; court refused to charge ‘‘if plff did not
obey the deft’s instructions and this contributed to an aggrava-
tion of the injury the plff cannot recover;” also refused to charge
that as deft treated plff gratuitously only liable for gross negli-
gence,

(Verd. $800.—AIl. at Gen. T.—Aff.)

BLAECHINSKA v. Howarp Mission &c. 130 N. Y., 497.

When the wages which a married woman is earning at the time of an acci-
dent are paid to her by her husband, she is not entitled to recover them
as part of the damages sustained by her.

Or,

When the wages which a married woman is earning at the time of an acci-
dent are paid to her by her husband, her loss of them through her injury
does not constitute a part of her damages.

Plffs arm broken by fall over broken cover of deft’s coal hole,
husband gave her $5.00 and $6.00 a week, for doing the house-
work and working for him as seamstress in his business as
tailor; court. charged that plff, if she recovered at all, was en-
titled to recover for loss of wages. Injury, arm broken.

(Verd. $500—Aff. at Gen. T.—Rev new tri. ord.)

De Vau ve. PENN. & N.Y. CaAnau & R, BR. Co. 130 N. Y., 632.

Improper construction cannot be predicated of a new kind of a machine,
merely because it does not always work as it was designed to do.
432 Cases CONDENSED, [1891.

 

Piff, employee, struck by dirt plow as it fell over side of deft’s
dirt cars; plow used to shove dirt off the cars by pulling plow over
the cars by means of locomotive, it struck a stone wedged be-
tween two cars went up and over little way, the plow had no
defect in its construction shown, nor want of repair; court left
it tojury to say whether it was properly constructed. Injury,
arm and wrist broken and crushed, shoulder dislocated, body

and ribs bruised.
(Verd. $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)

KENNEDY t. ROCHESTER City & B. R. R. Co. 130 N. Y., 654.

Declarations of pain made by an injured person after leaving the scene of
the accident are not part of res gestae and, if not made to a physician in
consultation, are inadmissible.

Piff, passenger, boarding car, fell to ground through its
starting with sudden jerk; evidence of declaration of pain to
plff's sister after her return home that day admitted. Injury
to head and side, shock.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri, ord.)

AYRES vt. VILLAGE OF HAMMONDSPORT. 130 N. Y., 665.

Piff stepped on new ice covering old ice on sloping sidewalk.
Facts held to be similar to those in Taylor v. City of Yonkers
105 N. Y., 202, and rule of that case applied. Injury, concus-
sion of spine, chronic sprain of back.

(Verd. $1,100.—Aff, at Gen. T.—Rev. new tri. ord.)

Dye v. Dex. Lack. & W. R. R. Co. 130 N. Y., 671.

Where the issue is whether aservant knowingly takes dangerous employ-
ment, evidence on his behalf of prior similar accidents in such employ-
ment is inadmissible.

Piff, employe, injured while coupling cars, deadwoods did
not meet, overlapped; this usual occurrence on deft’s road ;
some of its cars had no deadwoods at all, coupling of them
dangerous, cars received from other roads differing in height
1891-92.] Cases ConDENSED. 433

 

and construction ; plff as member of switching gang at deft’s
yard had been engaged in this work of coupling and uncoupling
their cars for months, in employ of deft for years ; evidence
admitted that similar accidents had occurred on deft’s road
prior to one in question. Injury, hip crushed.

(Verd. $1,500.—Aff. at Gen. T.—Reyv. new tri. ord.)

Scott v. PENNSYLVANIA R. R. Co. 130 N, Y., 679.

It is negligent for a person to walk by the side of a railroad track, within
the sweep of a train, which he knows is due at the place, without looking
to see, or if it is foggy without listening to hear, whether it is coming.

Or,

Walking by the side of a railroad track, and within the sweep ofa train known
to be due, is negligence. ‘

Piff, walking between two tracks, hit by express train coming
up behind, foggy morning, half hour before sunrfse, had crossed
two tracks, looked both ways just before did so, on reaching
space between second and third tracks turned and walked along
near enough third track to be hit, did not look again before
doing so, heavy overcoat with collar turned up about neck and
ears, knew train was due, others heard rumble of coming train.
Injury, thigh and arm broken, permanently crippled.

(Verd. $14,000.—Aff. at Gen. T.—Rev. new tri. ord.)

REICHEL v. N. Y. C. & H. R. BR. R. Co. 130 N. Y., 682.

It is not negligent for a railroad company to make a watering place for its
locomotives so near an ashpit, that in watering, they stand over the pit.

Or,

A railroad company owes no duty to shovelersin its ashpits between tracks,
not to make a watering place so near the ashpit that locomotives in watering
will stand over the pit,

Plff, employee, struck by engine while shoveling in ashpit in
track near roundhouse, water-plug near by, engines accus-
tomed to take water and get rid of ashes at same time, engine
in question approached with only one man on it, helper had
just gotten off and was walking, engine approached ashpit
without ringing bell; plff saw it coming, tried to escape but
caught while climbing out, co-laborer in pit lay down in it and
434 Cases ConnENSED. _ [1892.

 

was unhurt; court left to jury to say whether it was a negli-
gent construction of deft’s tracks to put water-plug so near
ashpit, that stopping place of engines was over the ashpit.
Injury, leg amputated.

(Verd. $3,000, exc. at Gen. T.—Exc. overrul. at Gen. T. judg.
ord, on verd.—Rev. new tri. ord.)

Bossour v. RoME W. & Oa. R. R. Co. 131 N. Y., 37.

Where an assessment of damages has been had pursuant to a judgment
absolute against defendant, the only way to get rid of an improper award
of damages is by motion to set it aside.

Piff injured through deft’s negligence ; a nonsuit had been
granted at a trial, judgment on which had been reversed anda
new trial granted at Gen. Term; deft appealed from that
order to Court of Appeals, where order had been affirmed and
judgment absolute rendered against deft; an assessment of
damages was then had; verd. $10,000; on which judgment
was entered, from which deft appealed to Gen. Term, and on
affirmance, to the Court of Appeals.

Motion to dismiss appeal granted.

PAULEY vt. STEAM GUAGE AND LANTERN Co. 131 N. Y., 90.

A master is under no duty to his servants employed in his factory to provide
for escape from it in case of fire, in any other way than by stairways,
unless such duty is enjoined by statute.

Where a statute enjoins upon a factory owner the duty of providing other
specified means of escape from fire than stairways, and provides for the
appointment of inspectors to enforce its requirements, the factory owner
is under no duty to his employees to provide all the means of escape
directed by the statute, if, with the approval of the inspector, he
erects an equivalent.

Defects in carrying out the requirements of the act requiring fire escapes to
be placed on certain factories are not material, where the inspector has
given his approval of the work as done, and there is no proof thatanem-
ployee met his death because of them,

Plff's intestate, employee, burned in fire in deft’s factory,
cause of fire unknown, destroyed factory, number of em-

ployees unable to escape ; factory five stories high, had elevator,
stairways and two fire-escapes, constructed to comply with
1892. } Cases CONDENSED. 435

 

Laws of 1887, chap. 462, approved by inspectors ; did not have
a stationary ladder on inside from upper story to the roof, but
instead, one of the fire-escapes, instead of stopping at the upper
floor was continued on to the roof, under approval of inspector;
there was a chute leading from a court into the basement under
one of the fire-escapes, but the proof showed that deceased
could not have met his death by dropping from the fire-escape
into the chute and being returned into the building; blinds on
the windows when opened impeded but did not prevent escape
by the fire-escape, one man escaped that way, no proof una
others failed to because of the open blinds.

(Nonsuit.—Rev. new tri, ord at Gen. T.—Rev. judg. on non-
suit aff. ) ,

Note.—Rule two is a correct statement of what is really ruled in this
opinion, though the opinion itself does not specifically go so far. On page 96
it suggests that the ladder required by the statute, if provided would have
been ‘‘an utterly unavailable means of escape.’’? But may it not be asked,
if this is not putting the burden of proof on the wrong party? Ought it to
rest on the personal representative of an employee, burned ina fire, to prove
that if the statute had been complied with he would have escaped? If the
employer chooses to provide a substitute, ought not the burden to rest on
him to justify it by showing that it was sufficient ? ;

CARPENTER v. CARPENTER. 131 N. Y., 101.

‘Where, through the neglect of an executor in charge of real estate to pay
interest on a mortgage out of rents and profits received by him, and pur-
suant to a collusive arrangement between the mortgagee and some of the
legatees of the same, a sale has been had to one of them undera judg
ment of foreclosure, the same may be set aside at the suit of an injured
legatee.

In RE Buavvetr. 131 N. Y., 249.

Anexecutor is not guilty of negligence in permitting a co-executor to receive
aid re-invest proceeds of the sale of real estate, where such co-executor
has a life estate in the whole’ estate, and is donee of a power to sell such
of it, as she may desire.
436 Cases ConDENSED. [1892.

 

CLAPPER v. TOWN OF WATERFORD. 131 N. Y., 382.

Under chap. 700 of Laws of 1881, making towns liable for damages to any
' person by reason of defective highways in those cases where commission-
ers of highways were liable at the time it was passed, the town is not liable
for injuries sustained in consequence of a defective highway, if its com-
missioner had no funds in hand to repair it, even though its supervisor
had the necessary funds and had not given them to the commissioner

after demand.

Evidence that a few days after an accident due to a defective highway the
commissioner of highways repaired it, is not relevant upon the issue
whether he had funds to do so at the time of the accident.

Whether a commissioner of highways performs his full duty to obtain funds
to repair them, by contenting himself with demanding them from the town
supervisor, is a question of fact.

PIff sprained her ankle by stepping into a hole in plank, portion
of crosswalk over gutter in deft’s street; deft’s com’r of high-
ways had failed to discover or repair it, had no funds; super-
visor had funds, com’r had demanded them from him, but had
not instituted legal proceedings to get them ; evidence admitted
that a few days after the accident com’r was seen repairing the
walk.

(Verd. $500.—Aff. at Gen. T.—Rev. new tri. ord.)

GLASIER v. TOwN OF HEBRON. 131 N. Y., 447.

A town is not bound to put a guard-rail along an embankment on a country
road, which is so guarded by trees that no one can drive off except by
turning at right angles into a narrow break of the tree line, where the
highway has existed in this condition for many years, and no accident
from driving off has ever occurred before.

Piff driving in sleigh along deft’s highway, horse frightened at
a barrel*tumbling out of an approaching sleigh, turned square
round and backed plff off the highway at right angles down
steep embankment into a pond, where she was nearly drowned;
no guard-rail along embankment, trees along it, with narrow
openings or breaks, down which it would be possible for a
vehicle to get only by horse turning at right angles; highway
so for fifty years, no such accident before. Injury, legs and
body frozen by immersion in water, shock.

(Verd. $2z,000.—Aff. at'Gen. T.—Rev. new tri, ord.)
1892. ] Cases ConDENSED, 437

 

THOMAS v. HENGES. 131 N. Y., 453.

If'a person, who owns only part of adock, licenses its use without informing
the licensee that he has no right to the use of the whole of it, he owes a
duty to such licensee, and the persons using the dock under him, tosee
that the whole dock is safe for them.

Piff’s intestate, killed by falling of a derrick on a dock, part
of dock owned by deft, rest by third person, derrick on latter’s
part, not erected by deft, nor did he receive profit for its use,
unsafe, dangerous ; deft let use of dock to a tenant for unload
ing stone at so much per load, nothing said to tenant as to third
party’s ownership of part of dock, boats usually moored along-
side of deft’s part; for aught tenant or those delivering stone
under him knew to contrary, they had right to suppose deft
had possession of and control over whole dock.

(Verd. $2,400.—Aff. at Gen. T.—Aff.)

HALL v. GERMAIN. 131 N. Y., 536.
Under the Civil Damage Act, if an agent, who lets premises for the owner,

knows that liquor is to be sold on them, his knowledge is imputable to the
owner. ;
Where intoxication of a person results in an injury specified in the Civil
Damage Act, the sale of any liquor, which contributes in the slightest
degree to such intoxication, is, under that act, the proximate cause of the

injury. :
Piffs husband’s death caused by intoxication produced in
whole or in part by liquor sold to him by one deft on premises
leased from another deft, as agent for their owner, the third deft.
(Verd. $1,000.—Aff. at Gen. T.—Aff.)

BERRIGAN v. N. Y., LAKE Erte & W. R. R. Co.
131 N. Y., 582.
A railroad company is under no duty to promulgate a rule that danger
signals shall be given when a car is being coupled.
Plff’s intestate, brakeman, died from injuries received while
coupling cars atnight on a siding; only negligence claimed was
omission, of deft to promulgate a rule applying the rule as to
438 CasEs CONDENSED. [1892.

 

signals on crippled cars: to cars while being coupled; no
evidence any such rule in use anywhere else, or that it would
have prevented the accident.

(Verd. $750.—Aff. at Gen. T.—Rev. new tri. ord.)

AKERSLOOT v, SECOND AVE. R. R. Co. 131 N. Y., 599.

A street-car conductor must see that a passenger lawfully entering the caris
in a place of safety before he signals the driver to proceed.

PIff, boy of 5, passenger, in charge of attendant, got on steps
at side of deft’s open cars, as they got on to topmost step and
before they got inside of car, conductor signalled driver to start,
car started with jerk, plff fell off, rolled under car, leg crushed,
Injury, leg amputated.

(Verd. $2,000.—Aff. at Gen. T. —Aff.)

FLOOD v. WESTERN Un. TEL. Co. 131 N. Y,, 603.

A telegraph company owes no duty to its linemen to see that the cross-arms.
on its poles are strong enough to bear their weight.

Plffs intestate, lineman, sitting on cross-arm of telegraph
pole, hammering, it gave way, killed by fall; cross-arm six
years old, inspected when put up, of usual material, size and
strength ; no evidence of any defect for purpose intended.

(Verd. $3,500.—Aff. at Gen. T.—Rev. new tri. ord.)

MOELLER v. BREWSTER. 131 N. Y., 606,

An empl®yee, who does his work in a way against which he is warned as
dangerous, does it at his own risk.

Piff’s intestate, employee, radiator tester, defts manufacturer
of steam heating apparatus, was peening a radiator (7. e.. ham-
mering on it to close small holes), holes discoverable by turn-
ing steam on; warned not to peen until steam turned off, liable
to explosion; did not wait, while hammering with steam on radi-
ator exploded.

(Verd. $1,500,—Aff. at Gen. T.—Rev. new tri. ord.)
1892. ] Cases CONDENSED. 439

 

WHITE v. WITTEMANN Lita. Co. 131 N. Y., 631.

Rule in Hickey v. Taaffe, 105 N. Y., 26, reaffirmed.

The fact, that there is no guard on a dangerous machine as required by the
act to protect minors, imposes no liability on the employer, in a case where
the minor, knowing of its absence, and of the danger, voluntarily
meddles with it. ;

Plff, boy of 13, employee in deft’s factory, duty to take papers
from bottom of big machine, in so doing exposed to no danger;
machine being cleaned by another employee, not in motion,
latter requested plff to pull out lever at side to start it, did so
with right hand, placing at same time his left hand on cogs of
wheels, two fingers crushed; court charged that any failure
to guard the machine as required by Chap. 462 of Laws of
1887, was immaterial ; also any omission to instruct plff did not
impose liability provided plff knew by experience or observa-
tion of the nature of the machine and dangers to be appre-
hended from it.

(Verd. for deft.—Aff. at Gen. T.—Aff.)

BorDEN v. DEL., Lack. & W. R. R. Co. 131 N. Y,, 671.

A defective car in a freight train, its uncoupling from the tender while in
transit, the finding of the dead body of the fireman between the rails at
about the place where the car became uncoupled, are not sufficient
to warrant the inference that a servant came to his death through his
master’s, and without his own, negligence.

PIiff’s intestate, fireman freight train, coal car out of repair,
taken on at astation during night, next to tender, shortly after
leaving station train parted between tender and that car,
coupled again, train proceeded, soon after deceased missed, train
stopped, search made, body found between the rails at about
the place where train uncoupled.

(Nonsuit.—Aff. at Gen. T.—Aff.)

HILSENBECK v. GUHRING. 131 N. Y., 674.

An owner of a tenement house is under no duty to his tenants nor to their
guests to keep the door to the cellar locked or lighted, or the platform at
the head of the cellar stairs railed.
440 Cases ConDENSED. (1892.

 

A guest of a tenant of a tenement house, who goes rambling round it in the
dark in an endeavor to find a closet whose whereabouts he does not know,
takes the risk of going through a door, which he thinks leads to the closet
of which he is in search.

PIff, visiting tenant of deft, tumbled down cellar stairway of
tenement house, two doors in hall of first story, one to water-
closet where he was bound, other to cellar; late in afternoon of
dark day, did not know exact location of closet door, saw a door
slightly open, supposed it the closet, openedit, stepped on toa
platform at head of cellar stairs, no rail on opposite side,
stepped off. Injury, compound fracture of leg, permanently
crippled.

(Verd. $2,000.—Aff. at Gen. T.—Rev. new tri. ord.)

BARNES v. KEENE. 132 N. Y., 13.

If a parent gives up his business to nurse an injured child, evidence both
of the value of the business given up and of the services as nurse
is not admissible.

Piff's daughter, 8 years old, injured in deft’s elevator through
negligence of operator; plff was earning under contract as
theatrical manager $50 a week, gave it up to nurse his daughter,
he having had experience as a nurse; evidence given as to value
of services as a trained nurse.

(Verd. $1,500.—Aff. at Gen. T.—Rev. new tri. ord.)

Nore.—In suit by daughter to recover her damages (mem. case, 115 N. Y.,
638) the verdict was $3,500; both arms broken, head injured.

WILLETS vt. Hatou. 132 N. Y,, 41.

A pledgeé of warehouse receipts for perishable property owes no duty to
the pledgor to take measures to prevent its decay from causes not pro-
ceeding from his own acts.

ALLAN v. State §, 8. Co. 132 N. Y., 91.

The gist of an action to recover damages for giving a poisonous medicine by
mistake is negligence.
1892. ] Cases CoNnDENSED. 441

 

A carrier of passengers by sea, which is under, and has performed, the duty
of employing upon its ship a duly qualified physician and supplying
medicine for a voyage properly packed and labelled, and having it in-
spected according to statute, owes no duty to a passenger to see that the
physician keeps the medicine in such a way as to lessen the chances of
mistake by such physician in giving it out. 7

Plff, passenger, injured by taking dose of calomel furnished
to her by physician on deft’s ship in mistake for quinine which
she had asked for; deft an English corporation, carried physician
under ‘‘ Passenger’s Act” of Great Britain which imposed upon
ship companies a duty to employ on board ship a duly qualified
physician and to provide supply of medicines properly packed
and labelled; act complied with including inspection as it
required ; when plff applied for the quinine, on evening of
second day out the ‘‘Surgery ” where medicine kept was in dis-
order ; court left it to jury to say whether “Surgery” in such
condition of confusion as to show that deft did not use ordinary
care in providing medicines and properly labelling them or left
them open so that a mistake was liable to occur. Injury,
mercurial poisoning causing inflammation and decay of jaw,
gums and teeth.

(Verd. $12,500.—Aff. at Gen. T.—Rev. new tri. ord.)

CoonLeEY v. Crry oF ALBANY. 132 N. Y., 145.

Mere permissive language in a statute, giving a municipal corporation the
right to remove obstructions ina navigable stream, does not create a duty
for it to do so.

Kane v. N. Y., N. H. & H.R. R. Co. 1382 N. Y., 160.

Where gates at a crossing are raised as an invitation to the traveller to
cross after a train has gone by, whether he was negligent in doing so in
front of another train approaching is a question of fact, where it does not
conclusively appear that he could have seen the train in time to avoid it.

Where the condition of the plaintiff at the time of the trial is such that the
jury can infer that he has not fully recovered, they can award prospective
damages,

Where there is no issue as to whether a bell was rung or whistle blown at
a crossing, it is not error for the court to refuse to charge that under the
repealing act, chap. 593, Laws of 1886, there was no obligation to make
such signals on approaching a crossing.
442 Cases CONDENSED, [{1892.

 

Plff injured at deft’s crossing, night, gates closed as he
approached, he stopped, eastbound train passed, gates raised hy
gateman, plff drove on, before got over gates lowered, escape
impossible, struck by west bound express; did not conclusively
appear that when he started acr ss he could have seen the west
bound train, his view being obstructed by the east bound ‘train
and a mound of rocks ; there was evidence from which the jury
might infer plff wot fully recovered at time of trial; court
charged plff had to recover for the injuries sustained and jury
could look to future as well as past; refused to charge deft not
bound to ring bell or blow whistle. Chap. 282, Laws of 1854,
as to giving signals at crossings repealed by chap. 593, Laws
of 1886. Injury to arm, hip, knee and head.

(Verd. $2,000.—Aff. at Gen. T.—Aff.)

VROMAN v. ROGERS. 132 N, Y., 167.

When the issue is as tv whether a boat’s sinking at a dock was due to the
unsafe condition of the bottom, on which she rested at low tide, and it
appears that she had been moored there for several days during which
she had rested on the bottom at low tide, her owner is not relieved from
the necessity of examining to see whether the bottom is safe by a state-
ment from the dock owner that it is safe.

Plffs boat sunk at deft's dock ; plff had leased wharfage upon
deft's representation that place so let was safe and had six feet
of water at low tide, boat drew six feet, bottom sloping away
from dock, boat laid there ten days, and had rested on bottom
to plff's knowledge; issue was whether she broke from fastenings
and turned over because of unsafe condition of bottom; court
charged if jury found bottom unsafe and it the cause of injury,
then to find whether deft negligent, and plff free from contributory
negligence ; refused to charge, if deft made statement place all
right plff had right to rely on that statement and it relieved him
from necessity of making personal examination ; charged might
consider this a question of negligence.

(Verd. for deft—Aff. at Gen. T.—Aff.)

’
1892. ] Cases CONDENSED. 443.

 

Dwieut v. Evra, Cort. & U. R. R. Co. 132 N.Y., 199.

Where the damage done to a neighbor's land by a negligent fire resulted in
the destruction of his fruit trees, the measure of damages is the difference.
‘in the value of the land before and after the injury, and not the value of.
the trees themselves at the time they were burned.

EMBLER v. TOWN OF WALKILL. 132 N. Y., 222.

Where a defendant gives evidence to show that a danger was not obvious to
its agent whose duty it would be to remove it, it can not claim that the
plaintiff was as matter of law guilty of negligence in not avoiding it.

The fact, that a town’s commissioners of highway were elected at an elec-
tion in which votes were given for them by voters in a part of the town
afterwards incorporated as a city, affords no reason why the city should be.
joined as party defendant in an action against the town to recover
damages resulting from the commissioner’s negligence.

PIff riding on load of hay on deft’s road, back to driver, swept
off by overhanging limb, deft’s commissioners had been elected.
at an election in which electors voted who resided in a part of
the town afterwards incorporated as a city ; the commissioners.
testified had never noticed the overhanging limb, knew nothing
about it; question as to com'r’s negligence not presented by any
exception ; only question, as to negligence of plff or driver ; also.
whether the said city should not have been joined as deft.
Injury to spinal column, wound under eye.

(Verd. $6,000,—Aff. at Gen. T.—Aff.)

DAVIDSON v. CORNELL. 132 N. Y., 228.

In building a structure, the master owes a duty to his workmen to adopt
such a method of securing it as to prevent its falling apart.

Where a structure is being erected by methods which are not sufficient to.
prevent its falling apart, a servant is not guilty of negligence in working:
upon it, if his knowledge of the method is not sufficient to apprize him of
its defect.

Where statements by an injured person to a physician as to the extent of
his injury are made in the course of an examination for the purpose of
enabling the physician not to treat him but to testify for him, they are not
admissible even though the patient himself testifies to the truth of them.

Piff, employe, injured by fall, falling with “traveller” and girders.
from elevated track in construction by defts ; evidence showed
444 Cases ConDENSED. [1892.

 

that defts did not adopt a safe method of construction and that
plffs knowledge of it may not have been such as to advise him
of the danger; evidence admitted that during an examination -
by doctor for the purpose of testifying, plff told the doctor had
not been able to have sexual intercourse since the accident ; plff
testified to the fact. Injury, concussion of spine, paralysis.
(Verd. $2,500,—Aff. at Gen. T.—Rev. new tri. ord. on third

ground. )

CARLSON v. PHOENIX BRIDGE Co. 132 N. Y., 273.
The rule in Hegeman v. Western R. R. Co., 13 N. Y., 1, does not apply to
appliances furnished by a master for his servant’s use.

Or,
A master is not an insurer to his servant of the quality of the material
used in the manufacture of an appliance for the servant’s use.

‘Or,

Where an appliance furnished by the master to the servant is made from
material bought by the master from a reputable dealer as the best in the
market, the master is not responsible for a break in it due to a defect in
the material not discoverable by inspection or by any test which will not
destroy its usefulness for the purpose for which it was bought,

Plff, employe, injured by fall of girder being raised in position
on an elevated track in construction by deft; fall due to break-
ing of a hook; break due to a defect not discoverable by inspec-
tion nor in the making of the hook ; hook was in use for months,
together with others, all made by deft from a bar of iron
purchased by it from reputable dealers as “best refined”, being
the best grade in the market; quality of the bar might have
been ascertained by a test, by cutting and bending, which, if
applied to that part used in the hook in question, would have
injured it, and if applied to the bar, would only have disclosed
the defect if applied to that particular part of the bar.

(Nonsuit.—Aff. at Gen. T.—Aff.)

DUDLEY v. PARKER. 132 N. Y., 386.

‘The sale of liquor to one person, who gives it to another, who is made drunk
by it, and while so injures a third, is not the cause of the injury under
the Civil Damage Act.

Or,

‘The sale of liquor to one person, is not the proximate cause of intoxication
of another person to whom the former gives it.
1892. ] Cases CONDENSED. 445.

 

Plff injured by upset of her carriage recklessly run into by a
buggy driven by a person intoxicated upon liquor given to him
by a person who had been riding with him and had for the pur-
poses of the trip bought the liquor from deft; there was no
evidence that the drunken person whose act caused the injury
was a party to the sale by deft of the liquor to the other person.
Injury, body, head, limbs and abdomen bruised, hemorrhages
of womb.

(Verd. $5,000,—Rev. at Gen. T, new tri. ord.—Aff. judg.
absol. for deft.)

STERGER v. VAN SICKLEN. 132 N. Y., 499.

The owner of a city house and lot owes no duty to his neighbor to keep his
back stoop in safe condition.

The agreement of a landlord with his tenant to repair a back stoop of a city
house does not cast upon the landlord any duty to do so as to a neighbor.

Piff injured by breaking of step of back stoop of deft’s house
in a city ; deft had let house to tenant, stoop decayed, deft had
agreed to repair it; plff lived next door, opening in division
fence, through which plff’s children accustomed to go in deft’s
yard to play, plff went through opening to get children, then
into house, while returning down steps, one gave way.

(Nonsuit.—Aff. at Gen. T.—Aff.)

Nore.—The language of the decision would include cases not covered by
the facts, The rule given is limited to the facts. It would seem that if the
stoop had been the front one, and plaintiff, to reclaim her children, had
gone upon it, rung the bell, gone in, gotten her children, and on returning
by this, the proper way for strangers to obtain entrance, had been injured,
she could have recovered. Supposeitto have been a farmhouse in the
country where the usual way is for strangers to go to the back door, could
she not have recovered? Allowing children to play in one’s yard is
surely an equivalent to an invitation to their mother to come and get them

 

when she wants them.

Scamipt v. Sternway & Hunters Port R. Co.
132 N. Y., 566.

A person, who on reaching an obstruction in a street, stops his vehicle to
see whether he can pass it, it not being clear whether he can, spends a
moment in examining it with aid of two others and on being signalled
by one of them to go on, does so slowly, does what any other
man would have done, and negligence can not be predicated of his act
because his vehicle does happen to hit the obstruction.
AAG Cases CONDENSED. (1892.

 

Plff working in a trench for sewers in street alongside of
deft’s track, injured by fall of piéce of sewer-pipe knocked down
by deft’s car; pipe formed part of barrier being erected around
‘the excavation, another car had just passed without hitting,
driver of car in question stopped, conductor looked and thought
car could pass, foreman of the contractor digging the sewer
‘signalled to driver to come on, which he did, slowly passed two
pipes, struck the third. Injury to hip and side, causing chronic
inflammation of joint, permanently disabled.

(Verd. $4,000. —Aff. at Gen. T.—Rev. new tri. ord.)

La Ornoyv.N. Y., CAKE ERIE & W.R. R. Co. 132N. ¥., 570.

-Althouzh a master may owe to an employee a duty to guard him bya duly
promulgated rule from an expectable danger, and may fail to perform that
duty, yet if the employee's own experience tells him what to do to avoid it,
he cannot visit upon the employer the consequences to himself of his
failure to do what his own experience dictated.

‘Where an injury to an employee is due to his failure to obey a rule published
in a book vy the master for the use of his employees, the fact that the
master has not furnished the book to that particular employee is imma-
terial, if he knew of its existence, had access to it, and knew it contained
the rules for his guidance.

“Or, :

‘The failure by a master to place in the hands of his employee a book of rules
for his guidance is immaterial where the employee knows of the book, has
access to it, and knows that it contains the rules for his guidance,

PIff, brakeman, injured in wreck of runaway coal train, run-
away due to down grade and defective brakes ; plff brakeman
for several years, knew the place in question, also knew the
danger of runaway if brakes out of order, also knew that brakes
of coal trains were liable to get out of order while train in
transit; deft’s rules required brakeman to test brakes before
‘starting, no inspection of them was had either before starting
nor at a station near the down grade where train stopped for
two hours, rules printed in a book which contained instructions
as to duty of brakeman, book not furnished by deft to plff, but
-he knew of it, had it in hand, read one rule in it, “only one”,
knew there was printed in it ‘‘the duty of each man.” Injury
‘to groin spine and ribs,

(Verd. { 3,500,—Aff. at Gen. T.--Rev. new tri. ord.)
1892. } Cases ConDENSED. 447,

 

JOHNSON v. NETHERLANDS AM, St. Nay. Co.
132 N. Y., 576.

Piff, gangway man employed by stevedores, engaged in
unloading deft’s ship, injured under circumstances which as
affecting deft’s liability are in all essential particulars identical
in principle with those in the case of Sanford v. Standard Oil
Co., 118 N. Y., 571. Injury, two fingers amputated.

(Verd. $700.--Aff. at Gen. T.— Aff.)

Bryant v. TOWN OF RANDOLPH. 133 N. Y., 70.

‘Rule in Ivory v. Town of Deer Park, 116 N. Y., 476, reaffirmed,

The fact that a railroad company has left a highway in an unsafe condition,
after constructing its track across it, does not justify the highway com-
missioners in lea ving it in that condition.

Or,

‘The fact, that the statute imposes upon railroad companies constructing
tracks across highways the duty of restoring the highway to a safe condi-
tion, does not relieve the highway commissioner from his duty to see that
the highway at that point is safe for travel.

‘Whether the place occupied by a driver on a loaded vehicle was the proper
place for him to occupy is a question of fact.

When an issue of negligence arises upon such an every day question of fact
as the proper place for a driver on a loaded wagon, improperly admitted
opinions of witnesses on the point cannot prejudice either party.

Plff's intestate killed by up-set of his loaded wagon down
embankment of deft’s highway ; embankment made by railroad
company, track crossed highway 12 feet above grade, highway
raised to grade of track, narrow, approached and left track on
curve, no guard rail; deft’s com’r had attempted to improve it,
made it more dangerous, railroad company ought to have made
highway safe, no steps had been taken to compel it nor had
deft’s com’rs made place safe; had the funds to do so; plff’s
wagon loaded so that if sat near brake, could only see his
horses’ ears, might have sat nearer front and operated brake by
rope, opinion of two witnesses admitted that where he sat was
a proper place ; had been heavy rain, gravel under wheels gave
way, narrow place, wagon sagged down, then overturned,
deceased careful driver.

(Verd. $1,044.16.—Aff, at Gen T.—Aff.)
448 Cases CONDENSED. [1892.

 

PALMERI v. MANHATTAN R. Co. 133N. Y., 261.

A common carrier is responsible for the false arrest of a passenger made
by its ticket agent on a charge that the passenger had passed a counterfeit
when purchasing a ticket.

Evidence that a plaintiff is an habitual litigant is inadmissible.

PIff, passenger, detained by station agent upon charge of
having giving him a counterfeit on purchase of ticket, put his
hand on her to stop her till policeman, he had sent for, came,
latter not coming let her go; evidence on plff’s cross examina-
tion that she was an habitual litigant excluded. Injury, nervous
prostration,

(Verd. $650.—Aff. at Gen. T.—Aff.)

ScHILD v. Cent. Park, N. & H. BR. R. Co, 133 N. Y., 446.

A street-car company must not only construct, but must maintain, its track
so that the rails shall be level with the street.

PIff, passer-by, broke knee-cap, stumbled over rail of deft’s
track, rail when laid ten years before even with street; at time
of accident above the level of street. Injury, knee-cap broken.

(Verd. $600.—Aff. at Gen, T.—Aff.)

FISHER v. VILLAGE OF CAMBRIDGE. 133 N. Y,, 527

Ifa village builds a foot-bridge alongside of a highway-bridge in such a
manner as to seemingly form a part thereof and to lead persons to believe
that they may properly drive thereon, it must make it strong enough to
make good its appearance.

A foot-bridge built along a highway-bridge, and not presenting the appear-
ance of a mere foot-bridge, is not a sidewalk within the meaning of § 652
of the Pepal Code or of an ordinance prohibiting driving upon asidewalk..

Plff injured by fall of bridge over which he was driving, bridge
one bridge in appearance, three in reality; centre bridge owned °
by town, built before deft’s incorporation, in effect a continua-
tion of village-street ; after deft’s incorporation, it built on each
side a foot-bridge, so constructed as that all three looked like
one bridge, only line of demarkation being that the village
bridges were one plank lower than the town -bridge; persons
were accustomed to drive over the side bridges as well as the
1892. ] Cases CONDENSED. 449

 

highway bridge ; plff did not know that the side bridges were
foot-bridges only, did know built for pedestrians to cross, and
knew one part of the bridge under supervision of one set of
men, another under. another set, knew it from seeing different
sets working on it, did not know side bridges not so strong;
side bridges were continuation of sidewalks of village street;
plff drove on to village sidewalk to get his wagon near platform
of store for a load; to get back on to street liad to drive on side
bridge which gave way ; village ordinance against driving on
sidewalk, also Penal Code, § 652.
(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

SuHrmips v. N. Y.C.& H.R. BR. R. Co. 133 N. Y.,.557.

Where an employee has the selection of an appliance to use in his master’s
work from a number of good and bad ones, he takes the risk of his own
selection of one which he knows is defective.

PIff’s intestate, brakeman in charge of coal cars and chute in
deft’s yard, while on a loaded car trap gave way, he went
through with the coal, injured so he died; knew the car was
out of order, and that it was his duty not to use it, but to send
it to shop for repairs, had the selection of cars to use and could
have taken a good one.

(Verd. $2,300.—Aff. at Gen. T.—Rev. new tri. ord.)

GOLDBERG v. N. Y.C. & H.R. KR. R. Co. 133 N. Y., 561.

Negligence can not be predicated of the management of a train at a station
from the mere fact that it runs over a passenger, who has alighted from
another train, passed behind the latter and on to the track where he is
run over.

Plff, passenger, injured by one train, after leaving another train
at station, his own train had discharged its passengers, started
off, obscured his view of the approaching train and its engineer's
view of him, latter train moving slowly in full control and in no
way disobeying rules or proceeding carelessly ; for his own
convenience plff crossed the track instead of departing from
the station by the way deft had provided ; circumstances
were such that the only negligence that could be predicated ot
deft would be in not stopping on seeing him, but the finding
450 Cases CONDENSED. (1892.

 

that the plff was not negligent necessarily freed deft, for if he
could not see the train coming its engineer could not see him.
Injury, collar bone and four ribs broken, lungs injured.

(Verd. $1,000.—Aff. at Gen. T. —Rev. new tri. ord.)

Wynn v. Cent. Park, N.& E.R. RB. BR. Co. 133 N. Y., 575.

Failure on a sudden emergency to do the best, that afterthought shows
could have been done to avoid an accident, is not necessarily negligent,
The failure of a driver of a street-car, whose brake-chain break3 on a down
grade, to shout to the car ahead, or to turn his horses to one side to drag
his runaway car off the track, so as to avert collision with the car ahead,
is not negligence.

Where minute inspection cf a brakechain would reveal a flaw, and only a
general inspection is given, it is a question of fact whether the inspection
given was negligent.

Piff, passenger, injured in collision, car on down grade, driver
to check its speed applied brake, brakechain broke, horses un-
manageable, car ran down by its own weight, collided with
car standing on track, plf{f thrown from seat; an expert for deft
testified that in the case of a wrought iron link it was not
possible for the external appearance of the iron to be without a
flaw and yet a flaw exist in the centre ; chain in question a new
one; no evidence that deft had inspected chain link by link,
deft's inspector only looked whole chain over and tested it by
winding it up several times ; court left to jury to say whether
deft wasgegligent in its inspection, also whether driver managed
the car with the requisite care and skill. Injury, contusion of
abdomen, rupture, shock.

(Verd. $5,000. —Aff. at Gen. T.—Rev. new tri. ord.)

NorE.—Under the rule in Hegeman case, 13 N. Y, 9, which has not been
directly overruled as to passengers, though held not to apply as to servants
(Carlson v. Phoenix Bridge Co., 132 N. Y., 273,) no such question as that in
the third head note could be sent to the jury. As the plff does not seem
to have invoked that rule, it is not supposed that it is overruled.
1892. } Cases CONDENSED. 451

 

SCHNEIDER v. SECOND AVE. R.R. Co. 133 N, Y., 583.

Where a collision occurs between two street-cars on crossing tracks, which
might have been averted if the driver of one of them had seen the other
in time and slackened speed, it is for the jury to say whether he was
negligent in his management of his car.

Where an issue is whether there wasa sufficient inspection, it is inadmissible
to allow an expert to say there was not.

Piff, passenger on car of deft the Second Ave. R. R, Co., in-
jured in collision between it and car of deft the Houston W. 8.
& P. R. R. Co.; tracks of first co. run north and south,. of other,
east and west ; Second Ave. car going south at six miles an
hour, other car going east ; driver of first did not slack up on
approaching cross track and when near it whipped up and tried
to pass in front of other car; claimed he did not see it, might
have seen it had he looked; other company joined as deft on
claim of negligence in inspecting running gear of car, brake-
rod broke by reason of a flaw in the iron, car could not be
stopped, deft proved it had been inspected that morning ;
‘Second Ave. Co. deft called expert to show that the inspection
as testified to would not have revealed the flaw; his statement
was received that the inspection as testified to was not an
adequate way for examining the brake-rod. Injury, ribs broken,
spinal column injured, permanently disabled.

(Verd. $15,000.—Aff. at Gen. T.—Aff. as to Second Ave. Co.,
rev. new tri. ord. as to the other Co.)

Grant v, Penn & N, Y. Canau & R. R, Co. 133 N. Y., 657.
Rule in Searles v. Manhattan R, R. Co., ror N. Y. 661, applied.

'

Plff, employee, injured in fall of coal cars off end of trestle ; at
work on one of three cars standing on trestle, two other cars
being pushed on trestle by engine to which they were attached
by adraw-bar slightly bent; on approaching the three stationary
cars, engine was stopped, draw-head of first car to which draw-
bar attached broke, the two cars ran into the standing cars,
pushed them off the trestle ; the plff's evidence left the cause of
the breaking of draw-head doubtful, might have been due to
latent defect in iron which no inspection would have disclosed;
452 Casgs CoNDENSED. [1892.

 

there was no evidence that it was due to the bend in the draw-
bar. Injury to hip, kneejoint, spine and chest contused, shock,
sight impaired, permanent injuries.

(Verd. $5,000.—Aff. at Gen. Kev new tri. ord.)

MoreGan v. Hupson Riv. Org & Iron Co. 133 N. Y., 666.
The failure to adopt rules is not evidence of negligence unless it appears
from the nature of the business, in which the servant is engaged, that the

_ master in the exercise of reasonable care should have foreseen the
necessity of such precautions.

Or,

A master is not bound to provide by rules against the danger of his work-
man being run over, while working with unnecessary zeal under a car
to clear the track for the car’s passage.

Or,

An injured servant can not claim that his injury was due to his master’s
negligent omission to promulgate proper rules, if he does not suggest the
rule which would have prevented the accident,

Plff, employee, fingers crushed under wheel of ore car, track
ran along ore kilns, down grade, cars loaded with ore at kilns,
wheels blocked during loading, ore spilled over on to track,
deft provided employees with rake and had directed them to use
take, or force car over the ore to rake it out; on occasion in
question plff used rake, then crawled under car used fingers, told
fellow-workmen to look out for him, they promised they would,
somebody removed the block, car started off, ran over plff’s
hand ; admitted by plff deft not negligent as to providing safe
place, or tools or competent workmen, or in stationing person
on track to watch out for plff; only negligence claimed was
omission “to provide and promulgate rules and regulations for
the guidance and government of the men engaged in and about
the dangerous work aforesaid”; court left to jury to say whether
there was a negligent omission to promulgate rules ; plff made
no suggestion as to what rule should have been adopted. In-
jury, part of hand amputated.

(Verd. $1,000. —Aff. at Gen. T.—Rev. new tri. ord.)

 

Smita v. SMirH. 134 N. Y., 62.
Where the execution of a deed is obtained by fraudulent representations as
to its contents, an omission to read it before execution is not such negli-'
. gence as to defeat an action to set it aside,’
1892. ] Casrs CoNnDENSED. 453

 

BENNER v. ATLANTIC DRepaine Co. 134 N. Y., 156.

Where damage, done to adjoining property by blasting, is the result merely
of shaking of the earth or pulsations of the air, and not by casting any-
thing on it, the person blasting is not responsible therefor in the absence
of negligence.

A public contractor, prosecuting a public work under due authority from the
state, is not liable to a private citizen for any resulting damage, if he is
not negligent.

Plffs house injured by shaking of the earth under it, and
pulsations of the air, due to blasting in the adjacent waters of
Hell Gate; blasting done by deft under contract with U. S.
Gov't, for the benefit of commerce; nothing thrown on plff's
premises, no negligence proved.

(Verd. for plffi—Aff. at Gen. T.—Rev. new tri. ord.)

ELDRIDGE v. ATLAS 8.8. Co. 134 N. Y., 187.

The rule that a servant who knowingly operates a defective machine is
guilty of contributory negligence (or assumes the risk), does not apply
to sailors who are subject to punishment for disobedience of orders.

PIff, a sailor, injured by getting his finger caught in cogs ofa
winch on deft’s ship which he was ordered to operate, coy-
wheels not guarded ; he knew of the risk, also knew that punish-
.ment would follow if he disobeyed orders to operate it; had to
choose between present punishment with possible hope of
remote justification—if order unlawful—and customary obedi-
ence to orders with the hope that by care he would escape.
Injury, fingers of one hand amputated.
(Verd. $3,750.—Aif. at Gen. T.—Aff.)

VOLKMAR v. MANHATTAN R. Co. 134 N. Y., 418.

A railroad company whose track is over a highway must keep itsstructures
in such repair that things do not fall from it on to passers-by underneath.

Or,

The fall of a portion of the structure of an elevated road on to the highway
beneath is sufficient evidence of negligence on its owner’s part in not
maintaining the structure in a safe state.

The evidence of an employee is not sufficiently disinterested to permit the
court to take a case from the jury when it rests only on his testimony.
A person who claims that he was injured by the negligent fall of a missile

is not bound to produce the missile at the trial. s
454 Cases CONDENSED. f1892.

 

Plff driving under elevated road, hit by iron plate and piece
of broken bolt ; fell from structure, bolt 14 inches long passed
through stringer, held up the plate by means of nut at its end,
broke two inches from the nut ; deft’s track-walker testified duty
to go over track, inspect all bolts, Keep them tight, had done
so in present instances during the month preceding; bolt not
produced,

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

OcEANIC STEAM Navy. Co, v. COMPANIA TRANSAT.
Espanoua. 134N. Y., 461.

The sub-lessee of a public pier is bound to maintain it in good repair.

The rule as to recovery over by a person who has been cast in judgment
for the negligence of another applies to judgments of the United States.
courts as well as our own.

PIff cast in judgment in U. S. court in favor of stevedore in-
jured while loading vessel at pier leased by it from N. Y, City,
lease provided it should erect sheds ; it did so, sheds had sliding
doors at sides, to admit of loading vessels lying alongside; plff
sublet pier to deft, accident occurred while ship being loaded
under permission of deft; doorand fastenings in good repair when
let by plff to deft, fall dueto disrepair; deft was notified of the suit
against plff, but did not defend it. Verdict in such suit $2,000.

(Nonsuit, exc. at Gen. T. —Exc. overrul. at Gen. T. and judg,
ord. on nonsuit.—Rev. new tri. ord.)

e

DINGLEY v. STAR KniTTING Co, 134 N. Y., 552.

Where a machine is started and stopped by pushing a belt off from a loose
pulley omtoa tight one, and wice versa, the mere fact that after its being
stopped by sliding the belt on to the loose pulley, it in some way gets
started again by the belt getting back on to the tight one, will not warrant
an inference that there was a deféct which caused the start.

Plff's son, employee, injured while cleaning waste from deft’s
machine, had stopped it by shifting belt fom tight pulley to
loose one, while under the machine cleaning out waste, it
started, caught his hand; on prior occasion, machine hud
started after running the belt off from tight pulley tu louse, no
1892.1 ; CasEs CONDENSED. 455

 

defect pointed out, machine of usual kind, start might have been
caused by failure to get the belt entirely off from tight pulley to
loose, in which case it might have been carried back again after
an interval.

(Nonsuit.—Aff. at Gen. T.—Aff.)

GABRIELSON v. WAYDELL. 135 N.Y., 1.

fhe owner of a vessel is not answerable for the damages resulting froma
willful assault upon a seaman by the master.

WILson v. City OF Troy. 135 N.Y., 96.

Where a city under due authority of law requires that lateral connections
between the public mains in itsstreets and adjoining lots shall be made by
its own workmen under the direction of its superintendent, the fact that
it is re-imbursed the cost by the person applying to have the connection
made, does not operate as matter of law to make such person, and not the
city, the master of the workmen.

Interest on the amount of the value of property diminished by negligence
may be allowed by the jury.

Piff's assignor’s horse fell into excavation in deft’s street ;
night ; excavation made in order to conduct water from street
main into private house; owner of house contracted with
plumber to do the work; pursuant to provisions of deft’s charter
and ordinance thereunder, plumber was obliged to apply to
superintendent of waterworks for men to open the trench; he
directed city’s laborers to do so; deft paid them, the plumber
repaying the money to the city ; court left to jury to say whether
the plumber or the city was master of the workmen; charged
that interest might be allowed.

(Verd. for plff.—Aff. at Gen. T.—Aff.)

Quiuty v. BaTtiz. 135 N. Y., 201.

A married woman must not allow her husband’s vicious dog to remain on
her premises.
Or,
Where a married woman knowingly harbors a vicious dog on her premises,
the fact, that it belongs to her husband who is living on them as the head
-of the family, is no defense.
456 Cases CoNDENSED. {1892.

 

-A husband is not liable for the tort of ‘his wife in knowingly keeping a
vicious dog on her premises, even though the dog belongs to him.

PIff bitten by dog belonging to the husband deft, kept by him
on premises of his wife, the other deft, with her approval; she
paid the expenses of the household, she knew of dog’s ferocity
there was no evidence that husband had anything to do with
her property or knew of dog’s viciousness, he was sought to be
held only on ground of liability for wife’s torts. Injury, leg
bitten, erysipelas.

(Verd. agst both defts $600.—Aff. at Gen. T.—Rev. as to
husband, aff. as to wife.)

LAMMING v. GALUSHA. 135 N, Y., 239.

In an action for maintaining a nuisance in constructing and operating a
steam railroad in a public highway without authority, brought by the
owner of lands injuriously affected by the road and where property rights
are invaded thereby, in which plaintiff demands an injunction and dam-
ages, he may also join a cause of action for a personal injury, sustained
by his being thrown from his wagon, while driving along the highway on
which the railroad was constructed, in consequence of his horse being
frightened by a passing train and escaping from his control,

(Demurrer for mis-joinder of two causes of action over:
ruled at Spec. T.—Rev. dem. sustained at Gen. T.—Rev. judg.
of Spec. T. aff.)

Curry v. City oF BUFFALO. 133 N. Y., 366.

Under chap. 572 of Laws of 1886 no action against any city having fifty
thousand inhabitants or over can be maintained unless it is commenced
within one year after the cause of action has accrued, nor unless notice

of intention to begin itis served upon the law officer of the city within six
months thereafter.

Plff injured through deft's negligence in allowing its sidewalk
to get out of repair, presented her claim to city clerk and comp-
troller as required by provisions of § 7, title 3, chap 519 of Laws
1870 as amended by § 8, chap. 479 of Laws of 1886, but did
not give notice of intention to begin action as required by § 1
of chap. 572 of Laws of 1886, which provides, infer alia, that no
-action to recover damages for negligence against the Mayor,
Alderman andCommonalty ofany city having 50,coo inhabitants
1892. } Cases CONDENSED. 457

 

or over, shall be maintained unless notice of intention to sue is
filed with its law officer within 6 months after cause o action
accrued.

(Nonsuit.—Aff. at Gen. T.—Afl)

QuERY.—Why require such a notice to be given ?

Sat Sprines Nat. Bank v. SLOAN. 135 N. Y., 371.

Where the liability of the guarantor of the collection of a note depends upon
due diligence being used by the creditor in collecting it out of the maker,
and such collection can only be made by means of proceedings to set
aside a general assignment by the maker, whether the creditor has used
due diligence in attacking the assignment is a question of fact. :

GARRATT v. TRUSTEES OF VILLAGE OF CANANDAIGUA.
135 N. Y., 436.

Where a statute provides fora public improvement by municipal authorities,
and does not prescribe the plan or details of the work, by means of which
the end is to be accomplished, but leaves it to the judgment of the
persons empowered to do it, if they act in good faith the corporation is
not responsible for the consequences of their erroneous judgment in the
adoption of a faulty plan. ;

Plff sued to restrain deft from permitting waters of a lake to
overflow his land, such overflowing being the result of the
adoption by its trustees of a plan for constructing a system of
sewage and reclaiming swamp lands, under statute authority.
Injunction refused.

GEARNS tv. BOWERY SAVINGS BANK. 135 N. Y., 557.
Savings banks, in paying out money to persons presenting a depositor’s
pass-book, must exercise due care in seeing that the payment 1s made to
a person entitled to receive it.

VANDEWATER v. N. Y., & N. E. R. R. Co. 135 N. Y., 583.

_By reason of the repeal of the provisions of the several railroad acts requir-
_ing railroad companies to blow whistles and ring bells at highway
crossings, it is no longer negligence per se for them to omit to do so. .
458 Cases CONDENSED. [1892.

 

Piff's intestate killed at farm crossing ; highway 2000 feet off,
no whistle blown nor bell rung at highway crossing; court
charged that deft was bound to do this, and as to the repeal of
§ 39 of general railroad act (Laws of 1850, chap. 140) and §421
of Penal Code, making it a misdemeanor for engineer to omit
such signals, that jury could find verdict just the same as they
could before the repeal.

(Verd. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

SPENCER v. THE STATE. 135 N. Y, 619.

Upon an issue whether an overflow upon claimant’s land has been caused
by a defective dam built by the state across a creek, it is admissible for
the state to show that obstructions, created by bridges and railroad
embankments below said land, hindered the discharge of the waters of the
creek.

Link v. SHELDON. 136 N. Y., 1.

The test of malpractice is not the existence of gross culpability, but the
absence of proper care.

Where an accused physician has been succeeded by another in treating a
patient, it is one of the issues to be tried by the jury whether any bad
results came from the latter’s treatment.

Complaints of pain made by the plaintiff to a succeeding physician during
treatment, are admissible in an action against the prior physician for
malpractice.

In an action for malpractice, it is not competent to ask an expert whether
he could trace any of the bad results, which followed, to an omission ofa
particular kind of treatment.

In an action for malpractice, it is not admissible for the defendant to state
the results of treatment by himself of similar cases.

Suit against physician for negligent treatment of broken arm,
resultinggin deformity, &c., of the same.
(Verd. $4,000, —Aff. at Gen. T.—Aff.)

Porter v.N. Y.C.& H.R. R.R.Co. 136 N. Y., 77.

The failure of a brakeman to be upon freight cars which are being shunted is,
in the absence of proof that the master had not promulgated a proper
rule on the subject, not the negligence of the master.
1892-93. | Cases CoNnDENSED. 459

 

Plffs intestate, car inspector, while inspecting bumpers be-
tween two cars in deft’s yard crushed by impact of two other
cars shunted on to the track where they were standing, no
brakeman on the shunted cars to control their movements, no
proof of insufficient number of servants or of failure to promul-
gate proper rules.

(Ver. $5,000.—Aff. at Gen. T.—Rev. new tri. ord.)

Query. Is not this another one of the cases which necessarily overrule
Flike’s case?

PEOPLE EX REL v. BOARD OF SUPERVISORS. 136 N. Y., 281.

Neglect to enforce a right furnishes no ground for the application of the
principle of subrogation.

GENET v. Det. & Hup. ©. Co. 136 N.Y., 593.

A tenant, in mining coal on demised premises, must not negligently de-
stroy the mine.

McNamara v. N. Y. C. & H. BR. R. BR. Co. 136 N. Y., 650.

Whether a person was guilty of negligencé in crossing a track, just after a
train had passed which had left a trail of smoke, is a question of fact,
where it is shown that she was in full possession ot her faculties, the flag-
man was absent, she looked both ways, there was a curve in the track,
and no signal of approach was given by the engine, which was moving
rapidly.

PIff’s intestate, young woman in full possession of faculties,
killed at deft’s crossing, struck by tender of engine backing at
high speed, no bell rungnor whistle blown, flagman was absent;
as she approached track a train was passing, she stopped till it
passed, looked both ways, went on, curve in track prevented full
view, smoke emitted from engine that had passedsettled on track,
one of plff’s witnesses testified that smoke prevented deceased
from seeing objects approaching ; the witness himself saw the
backing engine, did not testify he was prevented by smoke from
seeing objects; deceased nearer track than he, her opportunities
as good as his to see.

(Verd. $5,000.—Rev. at Gen. T., new tri. ord.—Rev. judg. on

verd. aff.)
-460 CasEs CONDENSED. [1893.

 

Gipney v. THE State. 137 N.Y., 1.

The negligence of the state in leaving an opening in its bridge unguarded,
so that a child may fall through, is the proximate cause of the death of its
parent who is drowned upon plunging in to save it.

-It is not contributory negligence for a parent to plunge into the water to
save his child.

Plff’s intestate drowned in an attempt to save his child, which
had fallen through an opening which the stateehad negligently
left in a bridge over its canal, he plunged in after his child.
(Award $5,000.—Aff.)

Note,—It appears from the appeal book that there were two cases heard
“wgether, the second being by plaintiff as administrator of the child.
-Award, $2,500. (137 N. Y., 529.) oe

BIRMINGHAM v ROCHESTER City & B. R. R, Co.
137 N. Y,, 13,

‘Where a bridge across a canal, which intersects a city street, is, with the
state’s permission, used as a part of the street, it is to be considered as a
highway for the purpose of determining the rights of travellers thereon.

A common carrier of passengers, whose roadbed is along a publichighway,
is not answerable for the damages resulting to its passenger from a defect
in the highway, as to which it had neither knowledge nor notice ofanything
to suggest danger.

Plff, passenger, injured while car passing over bridge over
state canal; bridge built by state, maintained by state, but sub-
stantially regarded as a partofacity street, which was intersected
by the canal]; iron stirrup on the bridge, defectively welded, defect
though discoverable by the maker during manufacture, not dis-
coverable by any one using bridge either in wagon or car, stirrup
gave way, broke through roof of car, fell on plff. Injury to back
and spine.
(Verd$3,500-—Aff, at Gen. T.—Rev. new tri. ord.)

ENGEL v. EUREKA CLuB. 137 N. Y., 100.

The ruleas to the non-liability ofan ownerof premises for a contractor’s negli-
gence in performing a contract in regard to them, applies to the case of the
negligent taking down of a wall, which was safe enough as it stood, and
would not necessarily have fallen if taken down properly.
- 1893. ] Cases CONDENSED. 461

 

Piff's intestate killed by falling of wall on adjoining premises
owned by deft; wall old, out of repair, but safe enough; fall due
to negligence of a contractor who was taking it down under,a
contract with deft for repair of the building, its fall not a neces-
sary result of carrying out the contract.

(Nonsuit, exc. in first instance at Gen. T.—Exc. sustained at
Gen. T., new tri. ord.—Rev. judg. ord. on nonsuit.)

JENKS v. QUINN. 137 N. Y., 223.

A person cannot be charged with an omission to perform a duty, which he
may owe to his neighbor to save him fro... unnecessary loss, unless he has
actual knowledge of the facts out of which the duty springs. :

Or,

Any rule, that one man owes a duty to another tosave him from unnecessary
loss, can only be applied where he has knowledge of the facts out of which
the duty springs.

Although this action was for damages for breach of a covenant
for quiet enjoyment in a deed, it is thought that the general prin-
ciple, announced as above stated, may be of service in the law
ot negligence.

WYLLIE v. PatMER. 137 N. Y., 248.

A vendor of fireworks, who sends with them persons to take charge of the
display under the purchaser’s instructions, is not answerable for their
negligence in setting them off.

PIff, spectator of display of fireworks, injured by horizontal
discharge of fire rocket due to negligence of a youth in setting
it off; fireworks furnished by the defts under contract with a
committee, under which they were also to send a man to take
charge of the display, they sent him and the youth also, both
of whom in setting off the fireworks were under the orders of
the committee,

(Nonsuit.— Aff. at Gen. T.—Aff.)

 

' Pace v. KREKEY. 137'N. Y., 307.
Where the execution of a contract other than a negotiable instrument is obs
tained by fraud, the party executing it is not liable upon it even to an
: innocent third party who has acted on faith of it, unless he was guilty. of
negligence in its execution. : ,
462 Cases ConDENSED.. [1893.

 

WHITNEY v, CAMMANN. 187 N, Y., 342.

The neglect of trustees of a manufacturing corporation to file their annual
report is not excused by the fact that they made it, and gave it to an officer

of the company to file, who omitted to do so.
*

Seymour v. VILL. OF SALAMANCA. 137 N. Y., 364.

Defects in proceedings bya municipality, under the statute, to condemn
lands for street purposes, even if sufficient to make the proceedings
void as to persons whose land is sought to be taken, afford no ground to
excuse the municipality from a duty to maintain the street in fit state for
travel.

Where a municipality takes proceedings to condemn land for street pur-
poses, and before all the steps have been taken to put itin fit state for
travel, it permits the public to use it continually as a street, it is answer-
able for the damages to a passer-by resulting from its being allowed to
remain in an unsafe condition.

Plff, passer-by, slipped into a hole in plank sidewalk of deft’s
street, which had formerly been a private way; deft claimed that
it had not been legally laid out asa street, by reason of a failure
on the part of its trustees to follow’the provisions of the act for
that purpose; also that although steps had been taken by deft to
open the street, and 1t had been in use for some time as such, it
had not been so far opened as to impose any duty on it to
maintain it in a safe condition. Injury, concussion of spine,
shoulder hurt, limbs partially paralyzed.

(Verd. $5,500.—Aff. at Gen. T.— Aff. )

 

Crouse v. First Nat Bx. 137 N. Y., 383.

Where a bank undertakes the presentment and collection of a sight draft
for a debt, of which protest is waived, and the drawee accepts it verbally,
promising to pay the following week, the bank is not under any duty to
use the same diligence in itscollection asin the case of regularcommercial
paper.

 

LINKHAUF v. LOMBARD. 137 N. Y., 417,

Where the officers of a corporation engage it in business transactions which
are ultra vires, their neglect to obtain from its board of directors formal
authority for such transactions does not make them personally liable-upon
contracts made in the course of the same.
1893. ). CasEs CONDENSED. 463
ZimMER v. N. Y.C.& H.R.R. BR. Co. 137 N. Y., 460.

Anagreement with a carrier to transporta horse at reduced rates in consider-
ation of his being valued at a specific sum in case of death or injury,
precludes the shipper from recovering any larger sum.

 

STONE v. THE STATE. 138 N. Y., 124

The state, when changing a river channel while constructing a canal, is
under no obligation to maintain a guard bank in good repair so as to
protect lands, which would have been flooded to as great an extent if the
channel had not been changed.

Where two persons not in privity with each other are injured by the same
act of another, a judgment against the latter in favor of one of them,
establishing such act to have been negligent as to him, is not admissible
in an action against the same defendant by the other person.

See note to this case in Part II.

WALLACE v. Cent. VT. R. R. Co. 188 N. Y., 302.

If a brakeman’s duty calls him to be on the top of a train watching to see’
that it does not break in two in going round a curve, he is not bound to
to bear constantly in mind the exact locality of the train with reference

to bridges.

The fact that a tell-tale of a bridge is out of order is to be takeninto account
in determining whether a brakeman on top of a train was negligent in
allowing himself to be hit by the bridge.

It is admissible to show the usual distance of tell-tales from raiiroad bridges.

Plff, brakeman, struck by low bridge while discharging his
duty on top of freight train, knew of existence of bridge, but
had not been on road long time, and at the moment was en-
gagedat his post, facing rear of train, watching as bound todo
to see if it broke in two, the train being long, and there being a
double curve at this point rendering its breaking more likely ;
tell-tale had been erected at the bridge pursuant to requirements
of chap. 439, Laws of 1884, but was out of order; this tell-tale
was only 51 feet from bridge, evidence by plffs witness, what
was usual distance excluded.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)
AG4 CasEs CONDENSED. -[1893.

 

SYLVESTER v, CROHAN. 138'N. Y., 494.

Where the drawee of a sight draft deposits it in his own bank on the day of

_its receipt, it is presented before noon on the next day, and that being on
Saturday and a half holiday, itis again presented on the following Monday,
and notice of protest i is sent to the drawer on that day, no negligence in
presentment or giving notice of protest is committed.

Rack v. Union Ferry Co. 138 N. Y., 644.

Itis not negligent in a ferry company to allow its landing bridge to be ona
different level from that of its boat. ae:

PIff, passenger, fell while passing from ferry bridge to ferry-
boat; she claimed that one was eighteen inches higher than the
other, not as the result of her observation, at the time, but only
_as an inference from the severity of her fall ; no other evidence
on that point; there was evidence on both sides that some dif-
ference in level between the bridge and boat was inevitable ;
also on deft’s part that all its ferries were managed in same
way, millions of passengers carried yearly, no such accident
before. Injury, head cut, spine and legs injured, causing in-
flammation of nerves, permanent.

(Verd. $2,500,—Aff. at Gen. T.—Rev. new tri. ord.)

SPIER v. CITY OF BROOKLYN, 139 N. Y., 6.

Where a mayor is authorized by ordinance to grant a permit to do an act,
which may or may not be a nuisance according as 1t is done in one or
another part of the city, and he by mistake of judgment grants permis-
sion for the act to be done in a locality where it is a nuisance, the munici-
pality is answerable for the special damages sustained by a citizen there-
from,

PIff’s house set on fire by a rocket, which entered its window;
fireworks were being discharged at a political meeting at the
junction of two narrow and built-up streets under permit’ from
deft’s mayor, pursuant to an ordinance which while generally
prohibiting explosion of fireworks in the city limits, provided
that it should not extend to fire works exhibited by a person
authorized by permit of the mayor; deft’s mayor had given per-
mit to exhibit them at spot in question, which by reason of the
streets being narrow, and built up made it a nuisance.

(Findings for plff—Aff.. at Gen. T.—Aff.)
1893. | Cases CONDENSED. 465

 

WESTON v. CiTy oF TROY. 139 N. Y., 281.

In an action to recover damages resulting from slipping on ice on a side-
walk, plaintiff must give some evidence of care in passing over it.

Piff, passer-by, slipped on ice on deft’s sidewalk, ridge formed
by discharge of water from a conductor on adjacent building,
ridge several inches high, two or three feet wide, covered with
light snow, but visible as a dangerous obstruction, no evidence
given by plff to show she had been careful in passing over it.
Injury, leg broken.

(Verd. $1,500—Aff. at Gen. T.—Rev. new tri. ord.)

BaILey v. ROME, WATER. & OG. R.R. Co. 139 N. Y., 302.

A master must see that his rules for inspecting his machinery so as to keep
it safe for servant’s use are carried out.

Where the issue is whether an inspection of a brake on a train has been made
at astation pursuant to the company’s rules, it is admissible to show that
several brakes on the same train were out of order when the train left the

station.

Plff, brakeman, applied brake, rod came out, he thrown off,
injured, due to pin in bottom of rod to hold it in place being
out, no evidence how long, its absence could not be detected
by person working the brake, but due inspection would have
disclosed its absence; there was evidence to show pin not in rod
when train had left a place where, under deft’s rules, inspection
should have been made and that the failure to discover the
defect was due to omission to inspect the car properly at such
place ; evidence other brakes in defective condition when train
left same place excluded.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)

LAKE v. MCELFATRICK. 139 N. Y., 349.

In an action by the owner of a building against an architect to recover dam-
ages, alleged to have been sustained in its building by reason of defects in
his plan, it is necessary to show not only that the plan was defective, but

also that it was followed.
466 Cases CoNnDENSED. {1893.

 

Kaare v. TRoY STEEL & Iron Co. 139 N. Y., 369,

An employee who wheels a barrow in the dark over a narrow platform, in
which he knows a depression has been worn, when he might havea lightif£
he wanted it, assumes the risk of falling off.

Plff, employee, fell off platform, while wheeling wood in wheel-
barrow at night, platforrn narrow, had depression in it at edge
of adjoining planks worn by wheelbarrows, unlighted; plff had
been wheeling over it for some time, knew of hole, deft had
furnished torches for use of workman. Injury, leg broken, in-

ternal injuries. ,
(Verd. $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)

ROBERTSON v. NATIONAL 8. 8. Co. 139 N, Y., 416.

Where goods are shipped under a bill of lading, which calls for shipment per
named steamer to an intermediate port and thence by transshipment to
place of destination, and the bill of lading contains a clause of exemption
from various perils including perils of land transit, and the shipper knows
that the said steamer never goes as far as the intermediate port, but that
it is customary for her to carry freight only part of the way and then to
forward it by land to the intermediate port, there is no such deviation in
the stipulated route as to override the exemption clauses, and render the
carrier liable as insurer.

OGLEY v. MILES. 139 N. Y., 458.

A boy of sixteen, working with a buzz saw and fully apprised of its dangers,
can not saddle upon his employer the damages resulting from its cutting
off his fingers, merely because the latter did not warn him of the danger.

PIff, boy of 16, employee, while sawing wood with buzz saw
had fingers cut off, had not been specially informed by defts
how to work buzz saw, or as to its dangers; knew the opera-
tions of the saw, had had sufficient experience in other factories
to know ité danger. Injury, hand amputated.

(Verd. $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)

 

HUERZELER v. CENTRAL Cross T. R. R. Co. 139 N.Y., 490.

Whether a parent is negligent, in allowing a child of tender years to play
upon the sidewalk in front of the house ‘on a warm evening, is a question
of fact.
1893. ] Caszs ConDENSED. 467

 

PIf’s intestate, a girl of.5, run over by deft’s car, allowed by
parents in warm evenings to play on sidewalk of street, where
they lived, wandered to another sidewalk with other children,
started to cross street to avoid a drunken man, car thirty-five
feet off, driver halloed to them, they began to run, car overtook
them.

(Verd. $2,000.—Aff. at Gen. T.—Aff.)

Rep v. THE Mayor &c. of N.Y. 139 N.Y., 534.

Where the legislature provides that a municipal corporation or a quasi-
municipal corporation shall succeed to all the liabilities of another, and that
all claims for damages resulting from negligence which theretofore might
be prosecuted against the latter shall be prosecuted against the former, it
does not mean to include a claim arising before the passage of the act.

PIff, passenger, on car over N. Y. & Brooklyn bridge, injured
by negligence of person in charge of car; suit brought 1890;
act passed 1891 (chap. 128, Laws t8gt), providing that there-
after neither city should be liable for any matter growing out of
the bridge, trustees to succeed to all liabilities of the two cities,
and all claims for damages for negligence which theretofore
might be presented against the cities or either of them should
be prosecuted against bridge trustees and they should be liable
in their corporate capacity. Injury, wrist broken, muscles of
back sprained.

(Verd. $3 000.—Aff. at. Gen. T.—Aff. with ten per cent.

penalty.)

Dov Le v. PENN. & N. Y. Canau & R. R. Co.
139 N. Y., 637.

Whether a person, having crossed twenty-four railroad tracks at night, and
seeing a head-light on a train, was negligent in not discovering that it
was on a track she was about to cross, the existence of which she did not
know, rather than upon another track, as she supposed, is a question of
fact.

Plff struck by train at night while crossing deft’s track, no
bell, no whistle, moving fast, plffhad crossed twenty four tracks
of other roads, the one in question about 250 feet off from the
main body of tracks, she ignorant of its existence, no indication
ofit, unacquainted with locality, saw head- -light, but thought it
468 Cases CONDENSED. [1893.

 

was moving along an embankment, didn’t know was coming
where she was. Injury, body and limbs bruised, sciatic nerve
injured, permanently crippled.

(Verd. $5,000 set aside at Spec. T. on question of law.—
Ord. aff. at Gen. T.—Rev. judg. ord. on verd.)

Norte.—This is another of the many accidents growing out of the maze of
tracks at Buffalo, and as to which we submit the rule ought to be that until
the railroads build foot-bridges over or tunnels under them, the rule as
to contributory negligence should be relaxed.

RaTHBONE v. N.Y. 0. & H.R. R.R. Co. 140 N. Y., 48.

Plff's statuary packed in box, broken in transit through deft’s
negligence ; shipping receipt contained exemption clause, deft
not responsible for statuary unless at time of shipment shipper
delivered mem. stating character of articles, value etc., and paid
extra price for carriage, also marble only taken at owner's risk
of fracture; no such mem. given, but deft orally notified of
contents of box. MHe/d, nonsuit error, 3 questions for jury as
to whether (1) deft had waived the mem., (2) plff guilty of
fraudulent concealment, (3) deft negligent.

HAHNKE v. FRIEDERICH. 140 N. Y., 224.

Scienter of an owner as to viciousness of his dog may be inferred from the fact
that he bought and used him as a watch-dog and kept him chained and
muzzled.

e
Boots v. RoME, Water. & OG. R. R.Co. 140 N. Y. 267.

A person is not answerable to his neighbor for damage resulting to the
neighbor’s house from blasting on his own premises, where he uses due
care, the blasting is necessary to effect what he wishes to accomplish and
no missiles are thrown upon the neighbor’s premises.

Or,

Damage done to a neighbor’s house by the jarring of the ground or concus-
sion of air, due to blasting carefully done on adjoining premises, is
damnum absque injuria.
1893. ] Cases CONDENSED, 469

 

Plff's house injured by jarring of ground or concussion of air
produced by deft’s blasting on its own premises, blasting was
the only mode of removing the rock, it was conducted with
due care; nothing was thrown upon plff's premises.

(Verd. for plff.—Aff. at Gen. T.—Rev. new tri. ord.)

Bascock v. Fircupure R. R. Co. 140 N. Y., 308.

‘Where a person seeks to recover damages alleged to flow from a negligent
escape of sparks from an engine, on the ground that a new kind of spark-
arrester has come into general use, he must show that the new kind is
less liable to cause fires than the old.

Plff's intestate killed in explosion of powder mill, 200 feet from
deft’s road; at time of explosion train passing emitted large
volumes of smoke, no witness saw any sparks, no evidence any
doors or windows in mill open through which sparks could get,
no proof spark-catcher on engine out of order, old-fashioned
kind, gone out of use on some roads for economical reasons,
not because new ones safer.

(Verd. $3,000. —Aff. at Gen. T.—Rev. new tri. ord.)

Nore.—As the majority of the court did not agree except as to one ground
of reversal, only that has been formulated into a rule.

Crown v. ORR. 140 N. Y., 450.

The rule that the master is answerable for his omission to give a minor
instructions how to work at a dangerous machine, and as to the danger
to be apprehended from it, does not apply to a case where the minor is*
told by a foreman to do something else at a machine which he was not
employed to do, and the risk of doing which was obvious to him.

Or,

Where a minor is employed to tend a machine in a particular way, which is
not dangerous, and a foreman tells him to do something else, the danger
of which is obvious and known to him, he assumes the risk.

PIff, employee, youth of 19, employed to stand in front of plan-
ing machine, and take off the dressed lumber, not required to
operate it, or handle it, cautioned against meddling with its
operation ; ordered by foreman to hang wood in front of knives,
while doing so, hand caught, was not given instruction how to -
doit, or as to danger. Injury, part of arm amputated.

(Verd. $5,000—Aff. at Gen. T.— Rev. new tri. ord.)
470 Cases CONDENSED. (1894.

 

Locks v. THE STATE. 140 N. Y., 480.

A claim for damages resulting from an injury to a captain of a canal boat,
occurring while navigating his boat on a state canal, and caused by the
carelessness of the state’s servants in lowering a canal bridge while his
boat was passing under it, is a claim arising from ‘damages resulting
from the navigation of the canals.”

Plff's intestate, captain of canal boat, navigating state canal ;
boat passing under lift bridge, bridge tender negligently lowered
it, scraped along top of cabin, came down, caught on tiller,
caught captain between it and cabin. Injury resulted in death.

(Claim dismissed.—Aff.)

IsHaM v. Post. 141 N. Y., 100.

A broker, even when acting gratuitously in the business of dealing in
securities as agent for a principal, must not neglect to exercise the skill
and knowledge which he holds himself out to possess.

 

QUINLAN v. WELCH. 141 N. Y., 158.

Fiff’s father run over, walking on a track, intoxicated from
liquor sold by deft’s tenant, who sold liquors on deft’s premises
with deft’s knowledge ; plff an infant, born day father died or
day before, did not appear which; only questions, (1) whether
proof sufficient to maintain action, (2) whether chap. 646, Laws
1873, repealed by chap. 403, Laws 1892, (3) whether question
as to right of a subsequent born infant to maintain action was
raised by the record.

(Verd. $500,—Aff, at Gen. T.—Aff.)

CHISHOLM v. THE Stat. 141 N. Y., 246,

Where a hole in a highway is not obvious, anda passer-by at night, who does
not see ifor know of it, falls into it, the presumption may be made that
he was proceeding carefully,

Plff fell at night in a hole in the highway ; state was replac-
ing an iron for a wooden bridge over canal; approaches to it
had to be widened, approach to one end of bridge left ungraded
for several days after everything else completed, hole carelessly
lett by state’s agents unguarded ; plff ignorant of hole; no
direct evidence that he was proceeding carefully.

(Award, $1,550.—Aff.) Injury, ribs broken, et al.
1894. } CasEs CONDENSED. 471

 

CoveRT v. ORANFORD. 141 N. Y., 521.

Where the bed of a stream is interfered with by a contractor, under contract
with its owner, in a manner intended to be temporary and not intended
to be unlawful, and the result is not only a temporary diminution of a
neighbor’s water supply, but its permanent loss through an underground
drainage which, though not expectable, was the result of such interfer-
ence, the contractor is not liable for the damages resulting from such
permanent loss, but only for the injury sustained during the temporary
interruption of the flow of the stream.

Piff's pond injured by excavation made by defts in construct-
‘ing aqueduct under contract with city of Brooklyn; built on
city’s land; its line crossed stream which supplied plffs pond
a mile below; defts diverted stream temporarily, excavated
trench below its bed, during which water in pond was lowered ;
on conduit being built and covered with earth, bed of stream
was restored to original state, but its water passed by under-
ground drainage through the earth into the conduit and was
lost to plff; this result not expectable.

(Verd. for plff for all his damage.—Aff. at Gen. T.—Rev. new
tri. ord.)

Fun v. N. Y. 0. & H.R. R.R. Co. 142 N. Y., 11.

The ground on which a railroad company is to be held liable for the burning
ofa neighbor's house by fire, communicated by sparks from its passing
engines, is negligence in not preventing their escape by means of the
best mechanical contrivances in known practical use,

A railroad company is not bound to adopt new contrivances to prevent the
escape of sparks from its engines until it has had time for trial and
experiment.

In determining whether a railroad company is negligent in not placing on
its engines a new contrivance to prevent the escape of sparks as rapidly
as it ought to do, after it has concluded to adopt it, regard must be paid
to expense, convenience, the operation of its road, and other matters
connected with such a change.

Isolated instances of the escape of sparks, larger than a spark arrester in
good order would prevent, are not enough to warrant an inference that a
fire in question was due to the company’s negligence, in the absence of
evidence to connect them with such fire, or of evidence that the company
did not have a proper system of inspection of its spark arresters, or failed
to repair them at its first opportunity.

Plffs house burned by fire communicated by sparks from
deft’s passing engines ; house ina city, within few feet of track,
steep grade, heavy showers of sparks emitted from deft’s
472 Cases CONDENSED. [1894.

 

engines while pulling and pushing trains up it; necessary and
inevitable in its management of its business under its charter;
had often set fire to plffs house, finally burned it; deft used
best spark arrester in general use down to four years before fire,
then began to adopt a new kind, improvement on old, first on
passenger, then on freight engines; no evidence was given as
to expense or difficulty in making the change, or that deft was
negligent in not making it faster, nor any evidence that any
spark arresters were out of order, beyond a few isolated
instances, that on a few occasions sparks had been emitted
larger than a spark arrester in proper condition would permit,
no proof they had set house on fire.

- (Verd. for plff—aff. at Gen. T.—Rev. new tri. ord.)

HARLEY v. BUFFALO Car Mra. Co, 142 N. Y., 31.

Upon an issue whether an appliance furnished by a master for his servants’
use was suitable and safe for the purpose, the opinion of an expert as to
the safety and fitness of appliances of that kind is not admissible.

Negligence can not be predicated as to a master for supplying his servant
with a defective appliance, merely upon proof that there are in the market
several kinds thereof, as to the respective merits of which experts differ.

Plff, employee, injured-by breaking of a belt while machinery
running, splices fastened by a fastener which gave way ; several
kinds of fasteners in the market, all liable to break; kind in
question in general use; experts differed as to which kind was
best, number of experts gave kind in question the preference;
evidence admitted’ of opinions by experts that the kind in
question were not safe. Injury, eye destroyed.

(Verd. $3,000.—Aff. at Gen, T.—Rev. new tri. ord.)

McCus v. Nat. Starcu Mre. Co. 142 N. Y., 106.

When a master employs a day laborer to tend a machine at a particular
placein a particular manner, which is perfectly safe to do, heis not bound to
warn him against the danger of repairing it while in motion, when it gets
out of order at a different place.

Plff, employee, injured while undertaking to adjust master’s
machinery which had gotten out of order, had not been employed
1894. } Cases CONDENSED. 473

 

for any such purpose; the negligence charged in complaint
was the omission to furnish plff with safe place to work and
safe machinery to operate; court ruled at close of evidence no
such case made out, but left it to jury to say whether deft had
negligently omitted to warn plff, unskilled in use of the
machinery, of the danger:incident to its use, and to instruct
him how to adjust it when out of order; no objection made this
ground not within the complaint ; what plff had been employed
to do was simple and safe, had been doing it for three years;
deft employed machinist to make repairs when necessary ; plff
a volunteer in doing what he did, the danger whereof consisted
in his doing it while machinery in motion, could have had
machinery stopped. Injury, arm mashed, finger broken,
permanent.
(Verd. $3,000.—Aff. at Gen. T.—Rev. new tri. ord.)

FoLMSBEE v. CITY OF AMSTERDAM. 142 N. Y., 118.

When an abutter owns to the centre of the street, the municipality may not
interfere with its grade, when once established, except in accordance
with specific statutory provisions.

Plff's house injured by change of grade in street-made by deft;
plff owned to centre of street, change not made in accordance
with provisions of deft’s charter; former grade had existed for
forty years, houses built conforming to former grade, sidewalks
also on former grade.

(Rep. for plff for damages and vacating assess. for benefits. —
Aff. at Gen. T.—Aft.)

ROEMER v. STRIKER. 142 N. Y., 134.

In an action by one neighbor against another to recover damages to former’s
house resulting from negligent blasting on latter’s premises, the defendant
may, under a general denial, introduce an agreement with 4 contractor
for the purpose of showing that he is not responsible.

Plffs house injured by negligent blasting during excavation
for cellar on adjoining premises belonging to deft; written
contract between deft and a contractor, whereby latter agreed

to excavate cellar, admitted ; not pleaded.
(Nonsuit.—Aff. at Gen. T.—Af..)
474 CasEs CONDENSED. (1894.

 

Srusiur v. McENTER. 142 N. Y., 200.

A release, upon a settlement of a claim for damages to the next of kin for
negligently causing the death of another, given in advance of the issuance
of letters of administration by a person who is not one of the next of kin,
is not a bar to an action to recover such damages, even though the person
who signed the release becomes one of the administrators, and the money
so paid was used by the next of kin for the funeral expenses.

It is not necessarily negligent for a servant, under his master’s orders, to
work in a trench, whose sides have not been protected from caving in.

Plff’s intestate, employee, killed while working in trench under
deft’s orders, caved in through deft’s neglect to shore up ; after
his death, before letters of administration issued, deft paid to
deceased’s brother-in-law $400, who gave a receipt stating,
payment was for all expenses caused by such death, adding,
‘and further, that I shall have no further claim whatsoever
against Mr. McEntee”; money used by the family to pay
funeral expenses and for cemetery lot. Subsequently, letters of
administration issued to plffs, one of whom was the person who
signed such receipt.

(Nonsuit.— Aff. at Gen. T.—Rev. new tri. ord.)

Lyon v. MANHATTAN RaItway Co. 142 N. Y., 298.

Chap. 721 of Laws of 1893, amending § 873 of the Code of Procedure, does
not confer upon the court the power to require a plaintiff to submit toa
physical examination, except in connection with, and as a part of, al oral
examination as a party before trial.

Piff, passenger, injured while travelling on deft’s train; dett
obtained order requiring her to appear before referee and submit
herself to a physical examination as to her injury by two
medical experts, in presence of such women as she might select,
but not in presence of the referee unless she chose; she
appealed from the order; Gen. T. reversed the order upon the
ground stfted in the head-note,—Aff.

CONNELLY v. MANHATTAN Ratuway Co, 142N. Y., 377.

Negligence, in not suspending entirely the running of its trains during an
unprecedented storm, cannot be predicated of a railroad company, when
the storm had been unheralded, had apparently abated somewhat in its
fury, and many passengers were seeking transportation.
1894. ] Casrs CoNnDENSED. 475

 

Plff, passenger. injured in collision between two trains on
deft’s road; about 7 o’clock on the morning of an unprecedented
storm, popularly called in this state ‘‘the blizzard”; rain
followed by snow with high wind all night, abated somewhat
towards morning ; weather forecast of day before had given no
indication of unusual storm ; many passengers at deft’s stations
desiring to go down that morning; plffs contention, z/er aha,
was that deft was negligent in not stopping its trains entirely
in such weather; court refused to charge that the evidence
did not justify a finding that deft should not have operated its
railway at all at the hour when the accident occurred, left it to
jury to say whether it was negligent to do so. Injury, to spine,
permanent.

(Verd. $20,0co.—Mod. at Gen. T., and as mod. aff.—Rev. new
tri. ord.)

NotE.—Is not this one of those cases where a suit may be defended by a
question? How could the carrier be convicted of negligence in carrying
passengers under such circumstances, and at the same time the passengers
be acquitted of negligence in consenting to be carried ?

This case is interesting as marking the progress which has been made in
the science of weather prediction. The forecasts of the weather bureau
may now in our courts be taken account of in determining whether a person
was negligent. And see White v. Old Dominion S. S. Co., 102 N. Y., 660.

Hangs v. N.Y., LAKE ERiE & W.R.R.Co. 142, N.Y., 416.

A train despatcher, in giving telegraphic orders for the movement of trains,
is the a/ter ego of the master, and his negligence in giving such orders is
that of the master.

Or,

When trains are being run under telegraphic orders emanating from the
master’s headquarters, it is part of the master’s duty to see that the orders
thus given will properly protect the, servants who obey them.

Plff, fireman on deft’s freight train, injured in collision with
another freight train; both behind time, were being run from
opposite directions under telegraphic orders of a train
despatcher, who negligently gave orders to each of such a tenor
as that obedience to them would necessarily result in bringing
them into collision ; it so turned out.

(Nonsuit.—Aff. at Gen. T.—Rev. new tri. ord.)
476 Cases CONDENSED. (1894.

 

Fuynn v. Cent. R. BR. oF N. J. 142 N. Y., 439.

There is no rule of law that if a person invites another to come upon
premises which he owns and controls, he is responsible for any injury
which ensues to such person when not negligent.

Or, s

An owner of premises, or a person in control of them, is not an insurer of
the safety of those whom he may invite to come upon them,

Notwithstanding the provisions of § 263 of the Code of Civil Procedure, the
Superior Court of the City of New York continues to have jurisdiction of
an action by a resident of this state against a foreign corporation, the
provisions of that section, in so far as they seek to restrict its jurisdiction,
being unconstitutional.

Plff, while working in third person’s employ on deft’s premises,
caught between two of deft’s cars; was engaged in transferring
grain from elevator lying at deft’s pier to car standing on its
track on pier; cars on an intermediate track had been separated
to make a passageway for the purpose; while plff passing
between them, cars negligently forced together ; court charged,

rule of law is that if a person invites another to come upon his

premises which he’ controls, he is responsible for any injury
which ensues, if the injured person is not negligent ; accident
occurred in another state, deft a foreign corporation, plff a
resident of this state, not a resident of New York City, suit
brought in Superior Court of that city. Injury, ribs and arm
broken.

(Verd. $2,500.—Aff. at Gen. T.—Rev. new tri. ord.)

Notr.—But see Robinson v, Oceanic St. Nav. Co., 112 N. Y., 315, as to
jurisdiction.

LANE v. Town oF Hancock. 142 N. Y., 510.

Where a town has several hundred miles of roads within its limits, many
of them in mountainous parts, its commissioners of highways are not
guilty of negligence in failing to observe the fact that a log fender, placed
on the edge of a mountain rozd in the woods, has had its utility asa
fender impaired by an accumulation of earth on the road-bed which has,
in the lapse of time, raised its surface nearly to the top of the fender.

Piff’s intestate, killed in an upset of sled over retaining wall
at side of deft’s road; mountain road in the woods, log fender
on top of wall, in process of time had ceased to be effectual asa
fender owing to accumulation of dirt in road, which, with snow
at this time, had brought surface of road nearly to level of top
of fender; at spot in question there was slant of road towards
1894, ] Cases ConDENSED. 477

 

fender, condition of road not changed in eight years ; intestate
being driven down the mountain on load of logs resting on two
bob-sleds, rear sled slid on snow and ice, went over embank-
ment, logs fell on her; 230 miles of roads in the town, 80 of
which along dugways and up steép ravines, 169 plank bridges,
several hundred sluices; no actual notice to deft’s highway
commissioners of condition of place in question shown.

(Verd. $1,000.—Aff. at Gen. T.—Rev. new tri. ord.)

McCauDIN v. PARKE. 142 N. Y., 564.

Where a plaintiff seeks to recover upon two grounds, one of negligence for
breach of a general duty, the other for breach of a special contract, and
it is left to a jury to find a verdict on either ground, and it does not appear
from the record on which ground a verdict for the plaintiff was based, the
judgment must be reversed unless both grounds can be sustained.

Where a charter party is silent as to guaranteeing a certain depth of water
in the approaches to a wharf, the mere statement by the wharfinger that
the dock is to be dredged, and that there will be a certain depth of water
in the approaches to it, can not be taken as a guarantee thereof.

A wharfinger is »nly bound to use ordinary care to make the approaches to
his wharf reasonably safe.

Or,

A wharfinger is not an insurer of the safety of vessels in coming to his wharf.

Pifi’s steamship injured while approaching deft’s wharf by
striking rock at bottom of river; many vessels had gone to
wharf at all stages of tide, all other approaches safe, rock never
heard of before ; diver, who located rock, gave opinion rock not
part of river bottom, but had fallen there ; defts had had basin in
front of wharf dredged out; did not appear that the rock was
then in the ordinary approach to the wharf, or that they had
any control of that part of river where it was ; plff testified,
during negotiations for charter party deft said were making
arrangements to have dock dredged out, would give his steamer
16 feet at all stages of tide, charter party silent as to this; plff
claimed to recover both on ground of negligence in allowing
rock to be in approach to wharf, also on ground of contract to
give such 16 feet; court submitted case to jury on both grounds,
charging that if they found for plff on either, he entitled to
verdict.

(Verd. for plff.—Aff. at Gen. T.—Rev. new tri. ord.)
478 Cases CONDENSED. [1894.

 

FRENCH v. Vix. 143 N. Y., 90.

A clause in a contract with an owner for the building of a house, that the
contractor shall be accountable for any damage that may be done to the
person or property of a neighbour, does not subject the contractor to any
liability to the neighbour for damages resulting from negligent blasting by
a sub-contractor, with whom the contractor made a lawful contract for
excavating rock on the premises.

Piffs house injured by negligent blasting on adjoining prem-
ises, did not appear injury caused by missiles ; deft’s contractors
had agreed with owner of latter to build house thereon, defts to
be ‘‘accountable for any damage that may be done to the
property or person of any neighbor”; defts made sub-contract
with third person for rock and earth excavation, latter agreeing
to assume all responsibility for loss and damage to person or
property while doing it, and save defts harmless; negligence
was that of sub-contractor.

(Verd. for plff, exc. at Gen. T.—Exc. sust. at Gen. T., new tri.
ord —Aff. judg. absol. agst. plff.)

FrRAcE v. N. Y., LAKE Erie & W.R. BR. Co,, 143 N.Y., 182.

Negligence can not be predicated of the adoption by a railroad company of
one kind of spark-arrester in place of another, where it appears that both
kinds are in general use, and it is mere matter of opinion which is better
than the other

Where the burning of one building, by its catching fire from another on the
same premises, is the natural and direct result of an act which caused the
burning of the first building, a recovery may be had for the second
building, as well as the first.

PLff's barn and hotel burnt, barn set on fire by sparks from
passing engine of deft, hotel caught from barn; court left to
jury to say whether deft was negligent in adopting a particular
kind of spark-arrester, the evidence being that there were two
kinds in general use, one the diamond stack spark-arrester, (the
one used in the Flynn case, 142 N. Y., 11) and the straight stack
spark-arrester the one used in this case, and no evidence that
one was better than the other ; court also virtually (see opinion)
left to the jury to say ‘“‘ whether the burning of the hotel were
not the natural and direct result of the sparks from the engine.”

(Verd. for both barn and hotel,—Aff. at Gen. T.—Rev. new
tri. ord.)
1894. ] CasEs CoNDENSED: 479

 

Notr.—In view of the second ruling in this case, the formal overruling
of the main ground of decision in the Ryan case can not be far distant.
The fact that the buildings successively burned were on the same land can
not make any differentiation in principle so far as the rule of proximate
cause is concerned. (See note to O'Neil case, ante p. 363.)

Necvus v. BECKER, 143 N. Y., 303.

Where a party wall was built to serve as a wall for higher buildings than at
first erected and one owner afterwards carries it up to the anticipated
height, he is not answerable for the damages resulting to his co-owner
from the fall of the higher part, in the absence of evidence that such fall
was due to negligence.

Piffs house injured by the fall upon it of a wallin process of
construction for deft by a contractor, upon a party wall belong-
ing to both parties; party wall had been built for higher
building than at first put up ; no negligence in construction of
the continuation wall alleged or proved.

(Verd. dir. for PIff—Aff. at Gen. T.—Rev. nonsuit ord.)

NoTE.—This case is substantially an authority for the proposition that if
the fall had been due to negligent construction by a contractor (as in the
Eureka Club case it was due to negligent demolition) the rule of non-
liability of the owner would have been applied

O'BRIEN v. FITZGERALD, 143 N. Y., 377.

Action by plff as receiver of a bank, to recover, against its
directors damages for various acts of negligence ; complaint
showed that defts had not been directors during same periods,
did not allege necessity of any accounting, nor that defts were
severally liable for separate misconduct; demurrer different
causes of action affecting different defendants improperly joined
cause of action being at law.

(Dem. overrul.—Aff. at Gen. T.—Rev. dem. sust.)

MARSTALLER v. MILLS, 143 N. Y., 398.

A cause of action against a domestic business corporation to recover dam-
ages resulting from its negligence does not abate upon its dissolution, but
survives against its trustees which hold its property for distribution
Complaint to recover for loss of services of son due to negli-

gence of a domestic business corporation which had been
480 . Cases ConDENSFD. (1894.

 

dissolved prior to this action, and whose property had come
into hands of defts as trustees for purposes of distribution under
the Corporation Laws, (Laws of 1892, Chap. 687, § 30, chap,
691, § 5); demurrer, abatement.

(Dem. overrul.—Aff. at Gen. T.—Aff.)

BUTLER v. MANHATTAN R. Co., 143 N.Y, 417.

The loss to a husband of a chance of offspring, involvedin a particular mis-
carriage, is not anelement of the damages sustained by the husband
through loss of services of his wife by reason of another’s negligent act,
which produced such miscarriage.

A discourteous remark, which a negligent servant may make in answer toan
expostulation against his carelessness, is not part of the res gestae,

Plffs wife injured by negligence of deft’s guard in closing
upon her a gate of its car while she was on the car platform at
the moment of boarding its train ; pregnant at the time, had been
a few weeks, miscarriage a result ; evidence admitted that upon
her exclamation of pain at the blow of the gate guard said, “‘go
to hell, shut up”; court charged jury might include ‘‘ any dam-
ages arising from the injury and resulting in depriving the
plaintiff of prospective offspring.”

' (Verd. $2;250.—Aff. at Gen. T.—Rev. new tri. ord.)

WILLIAMS v. Hays. 143 N. Y., 442.

Insanity is not a defense to an action to recover damages resulting from
that which, in a sane man, would have been negligence.
When a part owner of a vessel sails her on shares, he is answerable to his
co-owners for the consequences of his omission to take due care of her.
Piff's assignor, an ins. co,, having paid a loss upon a policy
of insurance upon an interest of part owners in a vessel, lost at
sea thrqugh failure of her master, the deft, and crew to take
the proper steps to prevent her drifting ashore in a storm, sued
as assignee of a cause of action resulting to such part owners
from such negligence; deft also part owner, but sailed her as
master on shares, had absolute control of her as if had chartered
her; defense insanity at time of occurrence; no evidence insan-
ity the result of exhaustion due to prior efforts to save her; court
charged, if insane not responsible.
(Verd. for deft.—Aff. at Gen. T.—Rev. new tri. ord.)
1894. ] CasEs ConDENSED. 481

 

Note.—The opinion of Earl, J, marks another stage in the development
of the law of negligence. The measure of negligence, hitherto accepted, is
repudiated. The test (wholly illusory, as pointed out in the note to § 2 of
the code, infra page 486,) is no longer to be the care which an ordinarily
prudent man would bestow under the circumstances.

In place of such a man, we are to take ‘‘an abstract or deal man of
ordinary mental and physical capacity and ordinary prudence.’’ Such a
man, however, must be, in the nature of things, a conception of the court
rather than of the jury, In fact, it has been by the measure of the stature
of such a man that the Court of Appeals has for many years been really
testing questions of negligence. Now that it has been authoritatively
announced, there will be less trouble over these cases, In other words, the
amount of care which a man onght to take in a given case, isa question of
law, not fact. It may now be said that §§ 3, 4, 5 and 6 of the code
(pp. 488-9) stand on definite, positive, authority.

HAYES v. CONSOLIDATED Gas Co. 143 N. Y., 641.

The remedy foran erroneous denial of an unopposed motion for a prefer-
ence on the calendar, is by mandamus, not appeal.

Plffs intestate killed, as was alleged through deft’s negli-
gence ; she claimed a preference on the calendar as administra-
trix and sole plff ; motion not opposed by deft.

(Mo. denied.—Order aff. at Gen. T.—App. dism. )

WINTRINGHAM v. HAYES. 144N. Y., 1.

Proof of the condition of an article at the time of its delivery to a bailee,
of the nature of injuries subsequently happening to it, and that they were
not the result of ordinary wear and tear makes outa prima facie case of
negligent custody on the part of the bailee.

Action for work on yacht, counterclaim for negligent care of
her. Counterclaim dismissed by referee upon erroneous exclu~
sion of evidence. Held as above. ;

BREIL v. Ciry oF Burrato. 144 N., Y., 163.

Where a lot-owner is filling in his lot, and using the street as a place of

temporary deposit of the dirt, which he appears to be removing as it is

“deposited, no presumption may be indulged in as against the municipality
that he will leave any of the dirt in the street over night.
482 Cases CONDENSED. (1894.

 

Constructive notice to a municipality of the existence in its street of a pile
of dirt which should be lighted over night can not be inferred, where the
pile was made upon the same day and the circumstances were not such
as to warrant a presumption that it would be left there over night.

Piff's carriage upset in driving at night over pile of dirt in
deft’s street; pile not guarded nor lighted; dirt drawn by house-
holder to fill up lot, deposited temporarily in street to be
wheeled into lot, deposited in street faster than wheeled off;
three or four days so spent; no proof that all the dirt left in street
on any one day not drawn off before nightfall except on the
day preceding night of accident; no proof that deft had actual
notice of the pile. Injury, bruises, face disfigured.

(Verd. $1,750.—Aff. at Gen, T.—Rev. new tri. ord.)

Lonpon & Lane. Fire Ins. Co. v, RomE, Wat. & OG.
R.R.Co. 144.N. Y., 200.

Plff’s hay burned in deft’s freight house, after delivery for im-
mediate shipment but before transportation begun; the shippers
were to load the hay on the cars; the delay in loading not due
to them, but to neglect of deft to furnish cars. Heid, deft liable
as common carrier.

e
THE FOREGOING ARE ALL THE CASES TO JAN. 1, 1895,

(with the exceptions noted below.)

The exceptions just referred to are as follows :

(1) Cases which may be reported as “mem. decisions” in Volume 144,
when it appears as a bound volume. One such instance will be, Alexander
v. Rochester C. & B. R. R. Co. (1st Appeal, 128. Y., 13.) It was decided

in Nov. 1894, but does not appear among the ‘‘mem.,” decisions in 143
N. Y.
1894. ] CasEs CONDENSED. 483

 

(2) Two cases, which were left out at first, as not coming within the scope
of the work, but which were afterwards found to have some bearing under
§ 36 of the code, and which are cited on page 496 of Part IL

Silsby Mfg. Co, v. The State, 104 N. Y., 562.
Perkins vu. “ 113. ** ~— 660.

They well illustrate the difficulty, to which allusion has been made in the
preface, of rigidly adhering to any line of demarcation, or principle of
selection.

(3) Another case left out for the same reason as the last, but which has
been inserted with others, under Baggage in Class E of Part III, to
make good the claim there made that it is a complete list of the cases under
those headings.

Carlson v. Oceanic S, S. Co., 109 N. Y., 359.

It should also be noted, that the rulings in the cases from Volumes 143 and
144 N. Y., (which were obtained from time to time from the “Advance
Pamphlets”) do not, exceptin one instance, appear in Part II under the

- subjects to which they belong, for the reason that they were published after
those portions of the code were printed. They therefore have been grouped
under appropriate headings at the end of the Code, suéxom., Miscellaneous.

END OF PART L
484. Cass ConDENSED. [Norts.
NorEs. ]

CasEs CONDENSED.

 
484d

Cases CONDENSED.

-[Nores.
Norers] Cases CoNDENSED. é 484e

 
484d Cases CoNDENSED. [Nores.

 
-NotEs. | Cases CONDENSED. 484e
484f CasEs CONDENSED. [Nores.

 
PART SECOND.

A CODE OF NEGLIGENCE.

AND KINDRED SUBJECTS.

Being an attempt to codify the law of negligence and con-
nected topics, as it exists in the State of New York, so far as
declared by its highest court, prefaced by a few remarks-upon,

THE ADVISABILITY OF STATUTORY CODES.

In the state of New York we are able to view the subject of
codification not only from the standpoint of theory, but also
from that of knowledge. We have had a two-fold experience,
one of an actual code of remedies, the other of a tentative code
of rights.

If there still remains within the confines of the state a lawyer
of mature years, who regrets the failure of the attempt to turn
our common law into statute law, his regret will cease if he
will compare the law of negligence as it existed in the reports
with that law as laid down in the proposed civil code at the
-various stages of its chequered career. These comparisons can
easily be made by means of the cases collected in Part I of
this book. When the ‘‘Draft of a Civil Code for the State of
New York, as prepared by the Commissioners of the Code and
submitted to the Judges and others for Examination prior to
484h CasEs CoDIFIED.

 

Revision by the Commissioners” was published in 1862, there
had been about a hundred different rulings on points in negli-
gence in our court of last resort. What were the deliverances
of that code upon this subject? Less than half a dozen in num-
ber, and those with one exception were platitudes.

Such was the sorry performance of him, the sounding phrase
of whose manifesto had been that all the law ought to be putin
one book, in order that the general public might be able to find
it without the aid of lawyers who, of course, (so he said), would
oppose any attempt to make plain the mysteries by which they
throve. After much opposition the civil code was in 1879
finally passed by the Legislature. During the intervening years
our Court of Appeals had been engaged in ‘developing this
branch of the law and several hundred more rulings in negli-
gence had been made. What account did the code as thus
passed by the Legislature, take of those declarations of the law?
None whatever. Itignored them. On reading it no one would
have supposed that the law of negligence had made any pro-
gress whatever, or was in any way different from what it had

_been years before, No lawyer could have appealed to it for light.
lf any citizen, captured by the specious plea above stated,
‘should have consulted itin 1879, he would not have been able to
‘obtain any more information from it than he would in 1862
have gained. If the governor had not vetoed it, we should
have had placed upon the statute book an enactment, which,
professing to be a full and complete codification of the law,
-would have been false to its professions in several hundred -in-
stances in one branch of the law alone. In 1886 it was again
pressed for passage upon the avowed claim that it had been
.changed so as to conform it to existing law. What had it, as
so changed, to say of the two or three hundred additional rul-
ings which had been made in our highest court upon the subject
since thegdate of its veto? Nothing whatever. It ignored them.
Upon reading it no one would have supposed that our Court of
Appeals had been in session during those seven years, Let us
suppose that in 1886 it had been enacted. In view of the hun-
dreds of rulings in negligence since then, it would now have
been still more out of joint with the law of negligence. Yet it
would have been a statute, professing to contain all the law.

Let us make a broader supposition and ask a more comprehen-
sive question. Suppose it had been enacted in 1862 as first pro-
CasEs CopIFIED. 4847

 

posed, In how many of the thousand law suits, which have been
important enough to require opinions in the Court of Appeals since
that time, would the code have been of any use, or even cited?
Not in a single instance. Its pages may be ransacked in vain
for asingle statement which would have shed a single ray of
light upon a single controversy. This is a demonstration,
ocular as well as mathematical, of its absolute futility so far as
the law of negligence is concerned.

But the argument does not stop here. Itis a fair inference
that the same paucity of useful law existed throughout the whole
book. The experience of thirty years corroborates the infer-
ence. Has that code grown into general use as a treatise on
the law? Isit ever referred to in court as a clear, accurate
statement of thelaw? [s it consulted by lawyers in libraries?
What we lawyers want is the law of the controversy that
occupies our attention, the principle which will guide ourselves.
and the courts to right conclusions. We have no prejudices.
We will take help from any source; we will resort to Justinian
or to Blackstone, to the Bible or the Koran, to any age, to any
country, to any writer, if only we can bring something to bear
which will help to win our client’s cause. Vet, here at hand
there has been for thirty years an easily consulted book, which
makes the wonderful claim that it contains the common law of
our state in plain, perspicuous propositions. The profession
knows of its existence. Ifit is a correct statement of’ the law,
it does not need any legislative sanction. It is in our libraries,
Why is itnot used? Its unworn binding, its fresh pages, as clean
now as a generation ago, are sufficient evidence that it can shed
no light upon actual.controversies. Nolawyer would ever have
seriously thought of putting forth the civil codeas a law book for
the use of his professional brethren.* Is there any magical
potency in the words ‘‘be it enacted?”

* The following passage from the opinion of Finch, J. in Webber, Piper,
109 N, Y., at p. 499, demonstrates that it is absolutely impossible to make
a useful code on the plan of the defunct Civil Code. ‘* The line of division
between the duty of the master to furnish and maintain safe and adequate
machinery, and that of the operative to handle it with prudence and care,
is difficuit to define by any general description, but is quite obvious, when
each case as it arises comes under consideration.”

As history has been said to be philosophy teaching by examples, so law
may be said to be justice learned from examples. Any comprehensive
statement of general principles must, if it is to be of any use whatever, be
supplemented by a statement of exceptions, qualifications, limitations.
1n other words must be accompanied by every ruling that has been made.
It follows necessarily that a few bald propositions, whether put forth as a
law book or enacted as a statute, will serve no useful purpose.
484; Cases CoDIFIED.

 

Take in the second place our experience of the Code of Pro-
cedure of 1848 and the Code of Civil Procedure of 1876, under
which the lawyers of two generations have had the misfortune
to practice at great cost to themselves and their clients. It is
sufficient to appeal to the general feeling all over the state that
we must get rid of our code of procedure, and put inits place a
simple practice act with the routine of practice provided for by
appropriate rules of court, which shall not be continually
changed by politicians at the beck and call of special interests
in particular suits.

It has been claimed by the author of the code of : ‘3 that he
should not be held responsible for the monstrum horrendum of
1876. He may be truthtully acquitted from the charge of being
its father, but he surely was its ancestor. The code which he
begat, begat in turn the present one. The latter is the logical
result of the former. Once the principle was established of
minute legislative interference with the manner in which justice
is administered, and the result, which has followed, was as
sure to follow as that which came from the opening of Pandora’s
box. Granted that it was well to have remedies, whether legal
or equitable, administered by the same court; granted that it
was wise to abolish all the various complicated forms of action;
granted that it was proper to have pleadings contain a concise
statement of the facts (although it is a very serious question
whether the slovenly pleadings, which now are the fashion, are
any improvement over the technical pleadings of former years);
granted that it was best to allow interested parties to testify in
their own behalf, and that testimony should be taken in equity
suits as in those at law; it did not need a code to effect these
reforms. The general testimony of the profession is, that we
have had enough of codes. As the end of the first half of the
present century saw the beginning of the code system, so it is
generally, hoped that the end of the second half will witness its
abolishment. It has grown to be a common nuisance, and
should be abated.

Lastly, let us look at the subject, for a moment, from a theo-
retical point of view. If a new nation, new in fact or made
over by revolution, wants to determine the general principles
of law by which it shall be guided, it may be well for it to enact
a comprehensive statement of them, by means of the applica-
tion of which controversies between its citizens shall be
CasEs CoDIFIED. 4844

 

determined. But to claim that a nation, with a past worthy of
being preserved, should deliberately throw away that past and
say that it shall not be appealed to for authoritative light, is the
part of foolishness rather than of wisdom. This is exactly what
is done, wittingly or unwittingly, by the advocates of a civil
code. Only three courses are open in enacting a code of rights ;

(1) To differentiate all the cases and put the result into fifty
books—which no one proposes to do and which would be absurd
as a statute however convenient and useful as a digest ;

(2) To enact a code of platitudes with a provision that no
book of reports should be cited in court ever thereafter—which
would be equally absurd and not at all convenient ;

(3) To enact a code of platitudes with permission, express or
tacit, to appeal to the old books—which would render the new
code a dead letter, absolutely useless to any judge, lawyer,
client or other citizen, of no avail whatever except to provoke
litigation over its meaning.

The argument against a statutory codification of the law of
tights may be reduced to a dilemma from which there can be
no escape. To enact it before it has been approved by experi-
ence is a dangerous experiment. To enact it after it has been
so sanctioned is a piece of supererogation.

We may well want a code, using the word as meaning ‘‘a
re-statement of the principles of existing law in a systematic
form.” Surely we ought not to desire a code, if by that is meant
‘‘a body of statute law, intended to supersede all other law
within its scope.” We do need a careful, comprehensive digest of
the law of our state as laid down in our highest court, so accur-
ately compiled that its propositions may be cited with safety.

The enactment into a statute of such a digest is unnecessary.
A statute which falls short of it is worse than useless,
A841 Casts CopIFIED.

 

{In view of the fact that there is, on the part of those who
have in charge the present revision of our statutes, a scarcely
concealed intention to make a code, so far as possible under the
guise of “ General Laws,” it should ever be borne in mind that the
definitions of the word code, on the preceding page—taken from
the Century Dictionary— serve to make clear the fallacy which
underlies all the arguments in support of a statutory codification
of the common law. The word is used at different stages of
the argument in two different senses, as if, however, it always
meant the same thing. When contending in favor of the utility
of codification, its advocates mean ‘‘a re-statement of the
principles of existing law in a systematic form,” Having
established the need of an accurate digest, and called it a code,
they then claim that it should be made authoritative. But in
urging its enactment as a statute they use the word in its other
sense, as if they had proved the necessity of ‘‘a body of statute
laws intended to supersede all other law within its scope.”
The words of that able jurist, Esek Cowen, written seventy years
ago in a note upon the carrier case of Platt v. Hibbard, 7 Cow.,
497, will be recalled with interest, in the light of our fifty years
of sad experience with codes. ‘‘Every practical science, and
indeed even the most simple mechanic trades, must have
separate professors. You cannot codify mankind into adepts,
even at building their own habitations, much less in a science
which has put in full requisition the powers of a Hardwicke
and a M&nsfield.”]
GEN. Prin. ] CasEs CopIFIED. 485

 

A CODE OF NEGLIGENCE.

(AND KINDRED SUBJECTS.)

CHAPTER IT.

GENERAL PRINCIPLES.

§1. Every man owes to his fellow-man a duty to see that
his fellow-man does not suffer injury through his negligence.

Or, every man owes to every other man the duty of being careful
not to do an injury to his person or his property.

Inattention is, superficially speaking, the gist of negligence, even as
intention is usually the gravamen of trespass. The distinction is often
made that the one is asin of omission, the other of commission, Of late
years, however, the courts and text writers speak, per force, of negli-
gence as a positive act. The phrase, actionable negligence, easily
prepares the way for another phrase, causative negligence. It is
said that a man must not negligently injure another, also that negli-
gence caused the injury. This is as strictly accurate in thought as it
is in law, and the general rule of duty to one’s neighbor might be
put as follows: Every man owes to his fellow-man a duty of care to
this extent, that he must not injure him either through intention or
inattention. Thus stated, the exact difference between the human
law and the Divine clearly appears, The one is two-fold, the other
three-fold in its nature. The state says you must take care not to
injure your neighbor, either by intention or neglect. Christ teaches.
that our care for our neighbor must extend to active aid. The
state says you must not wound him. He says, if you find him by
the wayside, wounded by some one else, you must tend him. This
we would do, if we did to others what we would have tnem do to
us. Inthe evolution of the law, we are slowly, haltingly, but surely
approaching the time when the law of the land will add the third ele-
ment, succor, as a part of one’s duty to his neighbor. Negli-
gence will become synonomous with neglect, and the duty will be
enjoined that one must not neglect his neighbor. Weare now, it would
seem, in the second stage of this development. At the present time, a
plaintiff would be nonsuited, who should sue to recover damages, for
that, he being set on by thieves and found by the defendant wounded
486 CasES CODIFIED. [Cuap. I.

 

by the wayside, the defendant passed by on the other side and neglected
to succor him, whereby he sustained further damage, to wit, etc. The
very idea is silly, some one will say. Is it more absurd than many of
the actions in this book would have seemed to the lawyers ot centuries
ago? They knew of the law of trespass, but never heard of suing for
damages for mere negligence. Even Coggs v. Bernard is not yet two
hundred years old, Canany one say in what yearit was first held that
the lord of the manor, going forth on his war horse, must pay
damages for carelessly riding over a yokel on the king’s highway ?
Take our Death Act, hardly half a century old. It is not now ridiculous
for a son to claim damages for the negligent killing of his father, But
suppose the father lies wounded by the wayside, slowly bleeding to
death, and a passer-by, although he sees that if the wound is staunched
life may be saved, goes on his way and, through his neglect.to give
succor, death ensues. Surely the difference in principle is not so great
as to require one to affirm that an action by the son to recover damages
for such neglect will always be as ridiculous as it would be now. May
it not be safely maintained that our common law is developing in the
direction of the Divine law? Is it not along this line of thought that
we may look for the solution of some of ourso-called ‘+ labor problems ”’
and other social questions? The phrase which isso much used inthe law
of late, ‘‘ breach of duty,’’ has great possibilities. The law is beginning
to embrace a wider conception than formerly of our duty to our neigh-
bor. Demagogues and ignorant men will freely accept a suggestion that
the employer owes a duty to the employee. They must not forget that -
it involves the correlative idea of duty on the part of the emnloyee to
the employer.

p _§ 2. Negligence is the omission to use that degree of care,
which the circumstances require.
Or, negligence is the omission to use the degree of care which the law
requires. Or, negligence is a breach of the duty of attention to others,
An accurate, concise, comprehensive definition of negligence can
not at this stage of our progress be given. The most that can be done
is to attempt to suggest something which may serve as a conven-
tional expression. Negligence, like fraud, eludes definition. Facts
rather than law, are in each the main ingredients, so it is always
said. We may easily see that an act is fraudulent, or is negligent,
even though we can not adequately define the words. ‘‘Courts and
juridioal writers have often attempted to give a comprehensive defi-
nition of the term negligence as used in the law. But no definition has
yet been given, and it is obvious that none can be given, accurate and
comprehensive enough to apply to the varying facts and circumstances
of every case,”’ (Lane v. Town of Hancock. 142 N. Y. 510, per O’Brien,
J., at page 516.) Grover, J., defines it as follows: ‘Legal negligence
is the omission of such care as persons of ordinary prudence exercise
and deem adequate to the circumstances of the case.” (Mangam v.
Brooklyn R. R. Co., 38 N. Y., at page 437.)
The State has undertaken to set the seal of authority upona definition,
so far as its criminal law is concerned. ‘Each of the terms, ‘neglect,’
Gen, Prin. } Caszs Copiriep. 487

 

‘negligence,’ ‘negligent’ and ‘negligently,’ imports a want of such
attention to the nature or probable consequences of the act or omission
as a prudent man ordinarily bestows in acting in his own concerns.”
(Penel Code, § 718, subdiv. 1). But the State is no more happy in its
attempt than any one else. Its definition does not define. I[t aims to
give us an exact rule or méasure, by which we may test an act or
omission, which, on examination, turns out to be as variable as the rule
in equity, which depended on the length of the chancellor’s foot.
Moreover, it is incorrect in adopting an inaccurate test, even considered
as a question of fact; because the average prudent man is much more
careless in regard to his own concerns than he has any right to be as to
those of another. He often says to himself, if I choose.to take a risk,
itis my own affair. This he has no right to do, when the welfare of.
another is concerned.

The word might, however, be more susceptible of definition, if we
were to import into it more of law, and less of fact than has hitherto
been accepted in theory. In practice that is what has actually been
done, as will appear upon reflection. The phrases, ‘‘persons of ordi-
nary prudence,” ‘‘an ordinarily prudent man,” are a survival of that
fanciful division by the lawyers of olden times, who delighted in nice
distinctions, under which all negligence was to be putin one of three
classes, slight, ordinary, or gross. This division as a legal one hasbeen
repudiated in this State (/erkins v. MY. Cent. R. R. Co., 25 N.Y.,
496). Since then we have had no legal test at all) We have, however,
continued to use the phrases. They served very wellso long as courts
did not undertake to decide as a question of law whether the act in con-
troversy was or was not anactof an ordinarily prudent person. Since,
however, the courts have been obliged from motives of public policy, to
restrict the province of the jury, and decide as questions of law whether
certain acts are or are not negligent, this phrase should be discarded
from definitions, however useful it may still be in charges to juries.
If the question is to be whether an act was the act of a person of or-
dinary prudence, it is clear that consistency with our continuance of
the system of trial by jury demands thata jury’s verdict on sucha point
must stand as final, to be set aside only on the ground that it is against
the weightof evidence. That position would necessarily oust the Court
of Appeals of most of its jurisdiction in these cases. That court, as
a court forthe correction of errors of law, can not review the decisions
of the lower court upon questions of fact. But that is exactly what it
has been doing for forty years, and increasingly of late, if negligence
is properly defined in such terms. It is, therefore, obvious that the
phrases ‘ordinary prudence,” ‘‘the prudence of an ordinary person,”
should not be used as legal tests. The lawsaysa man must be care-
ful not to injure his neighbor. He owes tu his neighbor an active
duty, an intention to do him no harm, In his relations to his neigh-
bor he must not only have nv ivtention to do him evil, but he must
not lapse into a state of inattention to his welfare. He owes to his
fellow-man a duty of attention. He must not neglect that duty. The
degree of attention, of care, varies. not as a question of fact, but as one
A488 CasEs CopIFIED. [Cuap. I.

 

of law, according to the relation which the two persons bear to each
other. That degree hascome, after a long struggle, to be considered
as a question of law—not, as above pointed out, avowedly so, but tacitly
so, and it may be added, necessarily and properly. The question
now is really one of law whetherin a given case the care, which the ver-
dict establishes was used, was the degree of care which the circumstan-
ces required. This proposition does not invade the province of the jury
to settle controverted questions of fact, or to draw inferences of fact from
the evidence. It preserves to the court that which is essentially the
province of the court. A jury may determine whether a pint, or a quart
or a gallon measure was or was not used, It is for the court to say
which measure ought to have been used. If there is doubt on the point,
it becomes one of those mixed questions of fact and law which so often
arise. In other words, let us define negligence, not as importing a
question of fact as to how much care a prudent man ordinarily bestows
upon his own concerns—an utterly illusory, futile inquiry—but as
involving one of law, the amount of care which he ought to bestow
upon the concerns of others as well as his own.

The foregoing theory is offered, very diffidently, in the hope that it
may contribute something little though it be,toa settlement of that much
debated and difficult subject, the respective spheres of court and jury in
negligence suits. It has been said many times in the last decade that our
court of last resort has taken upon itself to decide as matter of law that
which is essentially fact. Such isnotthecase. It has been evolving, de-
veloping, elaborating, a great branch of jurisprudence, the law of duty.
Fifty years ago this topic was in its infancy. The cases in our highest
court involving it were less than thirty innumber. The age of machinery
came in, and in the last fifty years, over a thousand suits have gone to
that court of sufficient importance to require written opinions,

It would seem as if the time had come to apply the process of induc-
tion, rather than that of deduction. The various isolated rulings as to
whether this act or that is actionable negligence or not, is contributory
negligence or not, are so many data, from which general principles may
be gathered and stated. The most important of these are: (1) tliat the

| degree of care which, in a given situation, ought to be used, is a ques-
tion of law; (2) whether it was used is a question of fact.

For these reasons the next four sections have been formulated, not
as being propositions which will be at once accepted as correct postu-
latesp but as an enunciation of principles, which reflection will show
are involved in the decisions, and which will come to be generally re-
ceived, in proportion as we discard the zz nudbiéus theory of law, and
adopt the rational theory that jurisprudence is a science, that it is
not one of the ‘‘exact sciences,’’ and that law is a growth, a result of
processes of evolution.

b §3- The degree of care which a person ought to usein a
given situation is a question of law.

; § 4. Whether a person has used the degree of care, which
I he ought to have used, is a question of fact.
Gen. Prin. ] CasEs CopIrIED. 489

 

§ 5. Ifitis clear that a person has used the degree of care,
which he should have used, or if it is clear that he has not |
used it, there is no question of fact to be sent to the jury so far
as his negligence is concerned.

§ 6. Ifitis doubtful whether a person has used the degree
of care which the law requires, the question of his negligence
becomes a mixed question of law and fact.

§ 7. Where there is anything in the circumstances to create |
a duty either to an individual or the public, an omission to per-
form that duty is negligence.

§ 8. A person cannot be charged with an omission to per-
form a duty, which he may owe to his neighbor to save him
from unnecessary loss, unless he has actual knowledge of the
facts out of which the duty springs.

Or, any rule, that one man owes a duty to another to save him from
unnecessary loss, can only be applied where he has knowledge of the
facts out of which the duty springs. (See Fenks v. Quinn, 137 NV. Y.,

at p. 229.)

$9. Negligence may be:
(1.) Causative [or, Actionable].
(2.) Concurring.
(3-) Contributory.
(4.) Imputed.

§ 10. Causative negligence is that negligence on the part of |
one person which directly causes injury to another.

§ 11. Concurring negligence is that negligence on the part of
one person, which co-operates with the negligence of another
in producing injury to a third.

§ 12. Contributory negligence is that negligence on the part \
of an injured person, without which the negligence of another Ae
Bt :

ld not have caused the injury. erage ose

would no ve cau njury teagan tt
§ 13. Imputed negligence is that negligence on the part of a
third person, which under certain circumstances must be re-

garded as contributory negligence of the person injured.

§ 14. Requisite care means:
(1.) In connection with causative negligence, the care \
which the law requires to be exercised by one
person towards another.
490 CasEs CODIFIED. [Cuap. I.

 

(2.) In connection with contributory negligence, the
care which a person should take to avoid the risk
of being injured.

/ (3-) In connection with imputed negligence, the care
which a person should take of others in his
charge.

Is it not true that contributory negligence also involves breach of
duty? Has any man a right negligently to injure himself? He may
not commit suicide. He has no right to deprive himself of a limb, an
arm, a finger, aneye. That were to detract from his ability to serve
the state in time of war, or tosupport himself in time of peace. He is,
in truth, a steward of his own body, He has been put into this world,
by no volition of his own, toserve some great purpose. He meets duty
at every turn of his pathway through life. He is a trustee of his own
powers. Hedidnot create them. He is entitled to no credit if heisa
man of great intellect, nor to blame if he is not. He may possess ten
talents or only one. His duty is to do the best with that which is
entrusted to him. He has a trust estate, which he must properly
invest. He is, therefore, just as much under a duty not to injure
himself by carelessness as by intent. He has no more right to be
reckless in his own concerns, than he has in those of his neighbor.
Contributory negligence is, consequently, a breach of duty, equally
with actionable negligence. Upon this theory the law of this state in re-
fusing to make contributory negligence a defence, and in compelling
a plaintiff to show freedom from it, may beamply vindicated. If he
has been guilty of it, he has been guilty of a breach of duty, the remedy
for which is against—himself !

§ 15. The fact that negligence is concurring does not prevent
lit from being actionable.

* §16. No person is answerable for the negligence of another
‘unless the relation of principal and agent exists between them.

§ 17. Where two persons occupy the relation to each other

of principal and agent in the doing of a thing, the negligence

of the agent in the doing of that thing is to be regarded as the
negligence of his principal.

§ 18. Omission to perform a duty enjoined by statute is neg-
ligence in those cases where it would be if the duty existed at.
common law.

§ 19. Omission to perform a duty enjoined by a municipal
ordinance is not negligence per se, but is evidence of negli-
gence.
Gen. Prin. ] Cases CopIFIED. 491

§ 20. Failure on a sudden emergency to do the best, that
atterthought shows could have been done to avoid an accident, |
is not necessarily negligence.

§ 21. Where the negligence consists in failing to exercise
foresight, the same test in respect of the negligence of each,
should be applied to both the injuring and the injured person, if
both have had equal opportunities of knowledge in regard to
what should have been foreseen.

Or, where the determination whether one man has been guilty of
actionable negligence, and another of contributory negligence, turns
upon the same or a similar want of foresight, or upon any other omis-
sion of the same kind in both persons, one can not be acquitted, if the

other is convicted, of negligence, provided that they had equal knowledge
or opportunities for observation.

§ 22. The duty of care owing by men to each other does not
extend so far as that a man is bound to do everything he can
to prevent an accident.

§ 23. A person who is guilty of causative negligence is re-\
sponsible for the damages directly resulting therefrom,

§ 24. Negligence, when contributory and also when imputed,

prevents the recovery of damages for causative negligence.

§§ 23 and 24 might properly be stated as one proposition; a per-
son whois guilty of causative negligence, is answerable for the damages
directly resulting therefrom to a person who is not guilty of contribu-
tory negligence, and to whom no negligence of a third person is to be
imputed. In such cases causative negligence is not actionable.

Or, a person cannot recover damages in a negligence suit against
another except upon evidence which acquits himself, and convicts the
other, of negligence.

§ 25. The injury herein spoken of may be:
(1.) Bodily injury.
(2.) Injury to property.
(a) Tangible property,
(b) Rights of action,
(c) Loss of services of a child or wife.
(d) Pecuniary loss to a widow or next of kin.

§ 26. When the injury sustained is a bodily injury, the cause
of action does not survive the death of either person.
“~§ 27. When the injury sustained is injury to property, the
cause of action survives the death of either person.
492 Cases CopIFIED. [Cuap. I,

 

§ 28. When the injury sustained is loss of another's services,
the cause of action survives the death of such other person, but
recovery can only be had for the loss of the services during

such other’s life time.
*

§ 29. When the injury sustained by a person through an-
other’s negligence results in his death, a pecuniary loss is con-
sidered to result to his next of kin, or widow or to both, as the
case may be.

§ 30. Any breach of duty which an individual owes to an-
other, or to the public, is, where it consists merely of an omission
to do his duty, negligence, whether the duty arises out of con-
tract express or implied, or otherwise.

It has not yet been decided whether a suit by a passenger to recover
damages for an injury resulting from negligence in transporting him is
asuit ex delicto or ex contractu. (See chap. X, sub nom. Contract or Tort.)

A suit against a carrier to recover damages for the loss of a trunk,
may be declared on either as a tort or as a breach of contract at the
election of the pleader. (Catlin v. Adirondack Co, 81 N. Y., 639.)

A person who allows his sidewalk to become unsafe through neglect

to keep it in repair, cannot, with accuracy, be said to commit a
nuisance.

In view of these propositions, the following sections with which this
chapter concludes, may have place in a work on negligence.

§ 31. Ifa person’s neglect is a breach of duty to the public,
and is a continuing one, such person is guilty of a nuisance.

§ 32. Ifa person’s neglect is a failure so to use his own as
not to injure his neighbor, he is guilty of trespass.

§ 33. Where inattention to the rights of one’s fellow-man
is so gross as to involve an intention to injure him, the offense
is trespass.

§ 34. Ig those cases where a duty is not only enjoined by
law but grows out of a contract, the person injured may seek to
enforce it in an action, either ex contractu or ex delicto as he
prefers.

Query.—If his complaint concisely states the facts constituting his
cause of action, as our Code of Procedure requires, how is the court to
ascertain his preference? As the distinction between law and equity has
been done away with, so far as the necessity for different forms of action
and a different tribunal is concerned, which necessarily involves the
ultimate extinction of the difference between law and equity as
Gen. Prin. ] Cases CopIFIED. 493

 

separate systems of jurisprudence, and as the question in every suit is,
upon a given state of facts, what are a party’s rights, and what is the
remedy to be applied for an invasion of them, so, may it not be said
that the distinction between actions ex contractu and ex d_licto, so
far as it concerns the kind of action, is vanishing? Afterall, is not
every suit a suit to obtain redress for some breach of duly? Would it
not tend to simplify the practice of law, if instead of speaking of
legal rights and equitable rights, of actions on contract and in tort,
we should use the simple phrase, breach of duty as all-embracing,
and. then direct our attention to this one question, upon the state
of facts agreed upon, or if disputed, found by a jury, what were
the duties of the respective parties? We would thus rise to a higher
conception of the principle on which the law as to rights and
remedies rests. We would get nearer to. those two commandments
upon which hang, said the Divine Teacher, all the law and the
prophets,

Cross REFERENCES,

See Chap. II, Causative Negligence ; Chap. III, Contributory
Negligence ; Chap. IV, Questions of Fact; Chap. V, Defenses ;
Chap. VI, Damages ; Chap. VII, Evidence; Chap. X, Miscell.
Subj. sub, nom. Abatement, Contract or Tort, Nuisance, Trespass.

In Title I of Chapter III, on contributory negligence, will be
found certain general principles which would seem to be
applicable in weighing the conduct of a defendant, as well as
that of a plaintiff. They have, however, been omitted here, as
they have not yet been so applied, and it is not the author's
object to do more than endeavour to generalize as to points
actually decided.
494 Cases CoDIFIED. | (Cuap. II.

 

CHAPTER II.

CAUSATIVE NEGLIGENCE.
TITLE 1.—THE on

§ 35. There is no remedy against the State for any negligence
of its servants, unless it is specifically provided by statute.

§ 36. The State has provided by statute for the recovery in
a special court of claims of damages resulting from the negli-
gence or other conduct of its servants in the building, main-
taining or management of its canals, or anything connected
therewith, other than the navigation thereof.

§ 37. The State has not, by any general act, consented that
it should be made liable for claims for damages for negligence
other than as stated in the last section.

§ 38. In determining the validity of a claim against the
state, the same rules of law are to be applied as if the contro-
versy were between individuals.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS.

Court of Claims. Bridges over Canals,
Percolations. ° ’ Sewers.

Overflows. Liability to Servants.
Diverting Water Death Claims,

Court of Claims.

(1) The Board of Claims has jurisdiction ‘‘to hear, audit, and determine
all private claims against the state which shall have accrued within two years
prior to the time when such claim is filed, except claims barred by any
existing statute, and to allow thereon such sums as should be paid by the
state.” (Laws of 1883, chap. 205, §.7, as am. by Laws of 1884, chap. 60, § 4.)

(2) ‘*All the jurisdiction and power to hear and determine claims against
the state formerly possessed by the canal appraisers and the State Board
of Audit is hereby vested in the Board of Claims.”” (/@. part of § 13, as am.
by § 8 of same am, act.)

(3) The canal appraisers had jurisdiction to hear and determine all claims
against the state for damages resulting ‘‘from the canals of the state, or
from their use and management, or resulting or arising from any negligence
or conduct of any officer of the state having charge thereof, or resulting
or arising from any accident or other matter or thing connected with the
Caus. NEc. ] Cases CODIFIED. 495

 

canals,’’? to be proved in the same manner as if the claim were against an
individual, and provided that it was not a claim ‘‘arising from damages
resulting from the navigation of the canals.’’ (Laws of 1870, chap. 321, § 1.)

(4) The State Board of Audit had ‘power to hear all private claims
and accounts against the state,’”” except such as were heard by the canal
appraisers, (Laws of 1876, chap. 444, § 2.)

As to any claim for damages, resulting from negligence other than
that mentioned above, it would seem to be necessary, and such is the
practice, to obtain the passage of a special act referring the claim to
the Board of Claims. It was said in exford v. State, 105 NM. Y., at p.
231, that the act of 1876 giving the Board of Audit authority ‘‘to hear
all private claims’’ did not enlarge the liability of the state. Again, in
Stone v. State, 138 WN. Y., at p. 131, it was said that the jurisdiction of
the Board of Claims to hear the claim in question, if it existed, was con-
ferred by § 13 of the act of 1883. In Locke v. State, 140 NV. Y., at p. 482,
it is stated that the state’s assent tu be sued ‘applies only to a limited
class of claims arising from the use or management of the canals,
(Zews of 1870, chap. 321).”’

In no case which has fallen under the author’s notice, has there been
any discussion of § 7 of the act of 1883. If the state intended to allow
her citizens to prosecute all just claims against her in open court, and
not force them to submit to a denial of justice on the one hand, or to
blackmail by members of her legislature on the other, in what more
comprehensive language could she announce that intention, than by
words, in which, without limitation or proviso, she confers upon a court
specially created the ‘‘jurisdiction to hear, audit, and determine all
private claims againsi the state which shall have accrued within two
years prior to the time when such claim is filed”? Public policy cer-
tainly favors such a construction. (See opinion of Foote J. in ZLioyd v.
The Mayor, 5 N. Y., at p. 375-)

For a reference to various statutes prior to the act of 1870 bearing
upon the subject of claims against the state, see brief of counsel in
Lewis v. State,96 N. Y.,71. See also note on ‘‘ Remedies against the

. State”, 16 4b, New Cas, 437.

Percoiations.

(5) It is negligent to build the banks of a canal of loose earth, not puddled
nor made tight, so that water leaks through them on to adjoining property.
(Heacock v. State, 105 N. ¥., 246.)

(6) The state is liable under chapter 321 of the Laws of 1870 for the
damages resulting to an adjoining owner by reason of water percolating
through a bed of coarse gravel, negligently left exposed during the construc-
tion of a state reservoir, (Reed v. Szate, 108 NV. Y., 407.)

Overflows.

(7) The state is answerable for the damages to an adjoining proprietor
resulting from an overflow upon his lands through a break in its canal, due
496 Cases CopIFIED. (Cuap. II.

to the negligence of a lock-tender in omitting to take proper care of a lock.
(Sipple v. State, 99 NV. Y., 284.)

(8) The state is liable to a town, under chapter 321 of the Laws of 1870,
for the expenses of repairing a highway bridge injured from a break in a
canal owing to the negligence of agents of the state. (Bidelmanas Super.
vu. State, 110 NM. Y., 232.

(9) Damages to land from an overflow, caused by a permanent dam
erected by the state for canal purposes, are not recoverable under chap. 321
of the Laws of 1870, as damages resulting from negligence in the manage-
ment of the state’s canals. (Benedict v, State, 120 N. Y., 228. see Perkins v.
Same, 113 NV. Y., 660.)

(10) A person, whose land has been damaged by an overflow from a
canal, due to a defective construction of its embankment, may recover his
damages from the state. (Sayrev. State, 123 MV. Y., 291.)

(11) Upon an issue whether an overflow upon claimant’s land has been
caused by a defective dam built by the state across a creek, it is admissible
for the state to show that obstructions, created by bridges and railroad
embankments below said land, hindered the discharge of the waters of
the creek. (Spencer v. State, 135 NV. Y., 619.)

(12) The state, when changing a river channel while constructing a canal,
is under no obligation to maintain a guard-bank in guod repair so as to
protect lands, which would have been flooded to as great an extent if the
channel had not been changed. (Stone v. State, 138 NV. Y., 124.)

Diverting Water of Streams.

(13) In diverting the waters of a stream for the use of its canal, the state
must not divert more than is necessary for that purpose. (Silsby Mfg.
Co. v. State, 104 NV. Y., 562.)

(14) The state is not the sole judge as to how much of the waters of a
stream is necessary for its canal. (/d.)

Bridges Over Canals.

(15) A claim against the state for an injury sustained while crossing an
unsafe canal bridge by a captain of a canai boat, following his boat by
land to rejoin her, is not a claim arising from damages resulting from
navigation ofthe canal. (Rexford v. State, 105 N. Y., 229.) “3

(16) A claim for damages resulting from an injury to a captain of a canal
boat, occurring while navigating his boat on a state canal, and caused
by the carelessness of the state’s servants in lowering a canal bridge
while his boat was passing under it, is a claim arising from damages
resulting from the navigation of the canals. (Lockey. The Stale, 140 N.
Y., 480.)

(17) The state owes no duty to the public to see that its bridges over
canals are safe for public use, when they were not built for the public
Caus. Nze, ] Cases CopIFIED. 497

 

use, and are only used by the public through sufferance. (S#/ittorf v.
State, 108 NV. Y., 205.)

(18) The fact that the state has allowed the public for a number of years
to use as a highway a surface of earth covering timbers and planks over
a canal feeder. casts no duty on it to maintain it in a safe condition for
such use. (Donahue v, State, 112 NV. Y., 142.)

(19) When the state directs a canal to be abandoned, sold and conveyed,
ifit permits the bridges over it to remain after the abandonment, it must
keep them in fit state for travel until the sale or conveyance. (Woodman
v. State, 127 N. ¥., 397.)

Sewers as Canal Outlets.

(20) If the state undertakes to maintain a sewer in a city street, for
canal purposes, into which abutting owners are allowed to drain their
property, it must keep the sewer in repair, (Sadlou v. State, 111 M. Y.,

496.)

Liability to Servants.

(21) The state has not made itself liable by any statute for the negligence
or misfeasance of its agents in supplying with defective appliances its
prisoners serving sentences of hard labor. (Lewis v. State, 96 NV. Y., 71.)

(22) The rule as to the non-liability of the master for an injury to one
servant through the negligence of another, applies to the state when sued
under chap. 321 of Laws of 1870. (Loughlin v, State, 105 N. Y., 159.)

Death Glaims.

(23) Claims of next of kin under the Death Act, resulting from manage-
ment of canals, are included among the claims recoverable against the
state under chap. 321 of Laws of 1870. (Bowen v, State, 108 NV. Y., 166.)

Cross REFERENCES.

Under the rule, that actions against the state are subject to
the same rules as actions against individuals, all the cross
reference that need be made here is a general one to those parts
of the Code which treat of masters, owners of property, and
other relations which the state may bear in a litigation, and of
the rules of evidence, etc., which should be applied therein.
498 Cases CopDIFIED. (Cuap. IL.

 

(Chap. []—continued.)
TITLE Il.—MunicipaAL CoRPORATIONS.

§ 39. The municipal corporations of the state are counties,

towns, cities and villages.

Counties are not usually considered to be municipal bodies. In this
state, however, as both counties and towns are not merely guest, but
full corporations, it is not improper to classify the former as well as the
latter as municipalities. Both are possessed of corporate powers of local
self government. Certainly according to the derivation of the word, a
county is as much a municipality as a town, ora city. Counties are so
styled in the County Law. (Laws of 1892, chap. 686, § 2.)

§ 40. A municipal corporation, as a part of the government
of the state, owes no specific duty to the individual citizen to
exercise its governmental powers, or perform its governmental

functions, either properly or at all.
Or, a municipal corporation is not answerable in damages toa citizen
for any omission to exercise, or forany negligence in the exercise of, its
governmental powers.

§ 41. A municipality, as an owner of property, owes to every
citizen who is lawfully pursuing his affairs, the duty of manag-
ing that property with a due regard to his safety.

§ 42. A municipality’s duty to make public improvements
falls under the category of governmental functions, and for the
failure to make them, no civil action is maintainable,

§ 43. The adoption of a plan for a public improvement is to
be regarded as the performance of a governmental function.

§ 44. Where, however, a plan adopted by the municipal
authorities isso defective that it could not have been adopted in
good faith, the municipality is liable for any special damages
resulting to a citizen from the carrying out of such a plan.

§ 45. As«nunicipality is bound to see that its public improve-
ments are properly made according to the plans.

§ 46. A municipality is bound to see that its public works
are maintained in a safe condition fit for the use intended,
provided it has been invested with power to obtain the neces-
sary funds to do so.

§47. Highways—including therein alleys, roads, streets,
sidewalks, bridges—public parks, public buildings, piers, or
Caus. NEc. ] Cases CopIFIED. 499

 

other places of public resort within the control of a municipality,
sewers and anything else constructed, erected, maintained,
owned by or leased to a municipality for public purposes, fall
within the rule in the last section, that is to say, they must be
kept by the municipality in a safe state for public travel or
resort.

§ 48. Navigable streams do not come within the rule of the
last section.

§ 49. The duty of keeping sidewalks and crosswalks safe for
passage includes the duty of removing therefrom, snow, ice,
water, or any other obstructions to safe travel, within a reason-
able time after notice, actual or constructive, of the existence
thereof upon the same.

§ 50. The duty of keeping the public ways safe for travel
extends to all hours of the day, all days of the week, all seasons
of the year, and is owing to every citizen, whether in the full
possession of his faculties or otherwise, whether adult or.infant,
provided such citizen is in the lawful pursuit of his affairs.

§ 51. Whether an alien permanently residing, or temporarily
sojourning, in this state can be considered as a citizen for the
purpose of having the protection of the rule in the last section,
and if at all, how far he is entitled to the care of the municipality,
has not been the subject of decision in this state. ,

QueEry.—Are aliens ever injured upon our highways? Are any of the
numerous plaintiffs in negligence suits against municipalities aliens?
Has the question ever been raised? Certainly if an alien has declared
his intention of becoming a citizen, he is for all such purposes to be
deemed such. But it might be plausibly urged that a foreigner must
take our streets as he finds them. On what theory can it be said that
we owe any duty to foreigners? If indeed we invite them here, ex-
pressly or impliedly, we may owe them some duty. Perhaps in sucha
case the rule as to the duty of an owner of land who invites another
upon it, might properly be applied.

§ 52. A municipality is not an insurer of the safety of the
condition of its highways or public places. its liability being
based on its negligence except in those cases where it main-
_ tains a nuisance. ,

§ 53. . If a municipality gives a permit toa citizen to make
an excavation in its highway, it is bound to see, not only that
the terms thereof adequately provide for the protection of other
500 CasEs CoDIFIED. [Cuap, IT.

citizens using the highway, but that such terms are duly fol-

lowed by the excavator, and the highway restored to a safe
state afterwards.

The exact measure of its duty in us respect has not yet been settled.

§54. The rule, respondeat vuperion, applies to municipal cor-

porations,
See Art. I of Tit. IV, Masters.

§ 55. When the powers or duties of a municipal corporation
are, by statute, parcelled out in whole or in part to different
boards, which are themselves corporations, or quasi-corporations,
and have the power of appointing and discharging employees
independently of the municipality itself, the latter is not the
superior of such employees.

§ 56. A municipality is not freed from liability for a failure
to keep its highways safe for travel, merely by reason of an im-
position by statute upon a special officer or board, of the duty
to do so.

§ 57. The rule that a person is not the superior of the ser-
vants of a person with whom he contracts for the proper doing
of a lawful thing, applies in favor of a municipality, which con-
tracts with a public contractor to construct. a highway sewer,
or other public improvement, provided that, where the contract
is one involving interference with an existing highway, the
municipality requires in it that the contractor shall duly guard
the rest of the highway.

§ 58. Therule, sic wlere tuo, ut akenum non laedas, applies to

municipal corporations.
See Art. IV of Tit. IV, Owners.

§ 59. Therule in the last section does not include grading
its streets or sidewalks, unless the municipality attempts, with-
out following prescribed requirements, to alter a grade already
established, and generally acquiesced in by abutters.

§ 60. Where a nuisance in a highway is neither created, nor
authorized by a municipality, any liability on its part for the
maintenance thereof, only begins after it has received notice,
actual or constructive, of the existence thereof,

Query.—Would it not be a more satisfactory way to get at the liabil-
ity of a municipality in regard to nuisances not of its own creation, to
put it upon two grounds? (1.) If it fails to discover the existence
of the nuisance within a reasonable time, it is guilty of negligence.
Caus. Nee.]  - Cases CopiFIEp. 501

 

(2) If after actual discovery it fails to abate the nuisance, it is guilty of
maintaining it. Are we strictly logical in putting the liability, as we
now do in the first case, upon the doctrine of constructive notice? We
say that the municipality has been maintaining a nuisance, although it
had, in fact, no knowledge of its existence, when it has existed long
enough to have fallen under the notice of its officers. We put it on the
ground that the municipality must be deemed to have had knowledge,
because it ought to have hadit. Their neglect to see it is then at the
bottom of the fiction as to constructive notice. Why not abolish the fiction
and put the liability directly upon the ground of negligence? The fiction
sometimes gives rise to confusion, See Lanev.Town of Hancock, 142 N_Y.,
at p. 519, where this language is used: ‘‘could a jury reasonably find
that such a defect in the road for the time mentioned, without actual
notice, was actionable negligence, under all the circumstances of the
case?” True, this was not spoken of a nuisance. But it is cited
for the sake of illustrating the point that the doctrine of con-
structive notice as usually stated rests upon something which neces-
sarily engenders confusion of thought. Read the above sentence as if,
instead of the words, ‘‘without actual notice,’”’ it were ‘‘upon con-
structive notice merely,” and it will prove that the fiction is not a
convenient one. If we do away with the whole doctrine of constructive
notice, whether as applied to nuisances or defects, and base the liability
of a municipality for damages arising from a nuisance or a defect in its
highway, of which it is ignorant in fact, upon the ground of negligence
in discovering it, we will not only free ourselves from an inconvenient,
illogical fiction, but will find a ground upon which Barton v. City of
Syracuse, and McCarthy v, the same, may stand, without being out of
harmony with subsequent decisions.

§ 61. When a highway gets out of repair, the liability of the
municipality for resulting damages only attaches as to those
damages which are sustained after it has received notice, actual
or constructive, of the defect.

§ 62. When a public work is of such a character, that its
becoming unsafe or defective is inseparable from its use and is
an expectable thing, the municipality is liable for the damages
resulting therefrom, irrespective of the question of notice.

This seems to be the rule to be drawn from the Barton and McCarthy
sewer cases, which are still cited. But wherein does a highway differ
from a sewer in that respect? Why should a city be held to a liability,
which almost equals that of an insurer, as to damages to property from
sewers out of order, which are underground, and not easily gotten at,
and only be held toa liability for negligence after notice, actual or con-
structive, as to damages to the person from a defective highway, on
top of the ground, and easily inspected? Is it not to be expected that a
highway will get out of repair? If, as suggested in the preceding
note, the’ theory of notice is entirely abrogated, and a theory of
liability, for maintaining a nuisance after discovery, and for negligence
5U2 Casss CopIFIED. (Cuap. II.

 

in failing’ to discover it, is adopted instead, there need not be that dis-
agreement between some of the decisions, which certainly now exists.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS:

References to Statutes, : Highways.
In General. What are.
Respondeat Superior. Alleys.
In general. Bulges:
Docks, Piers, Wharves.
Contractors. Drainage.
Special officials. Drains.
As Neighbors. Embankments.
Notice. Grading.
Pande, Navigable Streams.
Roads.
Not Insurers. Sewers.
Plans. Sidewalks.
Permits. Streets.

 

References to Statutes.

(24) Counties are municipal corporations empowered to hold property,
realand personal. (1 Nev, Sta’. 364, $1. Gen. Mun.Law, $1. County Law, § 2.)

(25) Towns are municipal corporations empowered to hold property, real
and personal. (1 Rev. Stat. 337, $1. Gen. Mun, Law, § 1. Town Law, § 2.)

(26) ‘* Every town shall be liable for all damages to person or property
sustained by reason of any defect in its highways or bridges existing because
of the neglect ofany commissioner of highways of such town.”’ ( Zhe Highway
Law, first part of § 16, and see Laws of 1881, chap. 700, § 1.)

(27) The duties of commissioners of highways are defined by statute.
(See Birdseye’s Kev. Stat. See also The Highway Law, also Town Law.)

(28) As there is no general act for the incorporation of cities, the
particular charter of each city must be examined to ascertain the duties
~with which it has been charged.

(29) Villages may be chartered under a general law, but special charters
sare still sogommon that it is not safe to rely on the general act. (Laws of
4870, chap. 291, and subseg. am.)

(30) The cities of New York and Brooklyn are no longer liable for any
damages sustained upon the suspension bridge known as the New York
and Brooklyn bridge. (Laws of 1891, chap. 128, § 7.)

En General.

(31) Where a municipality builds a bridge without authority to do so, it
is not answerable for the damages resulting from its neglect to build it
properly. (Zhe Mayor v. Cunliffe, 2 N. Y., 165.)
Cavs. Nec.] Cases Coprrmp. bus

 

(32) A municipality constructing a public work with authority is under a
duty to build it properly. (Rochester White Lead Co, w. City of Rochester, 3
N. ¥., 463.)

(33) A municipality possessing private powers as owners of property, as
well as governmental powers, owes to persons lawfully pursuing their
vocations the duty of carryingout the former powers with duecare, (L/oyd
wv. The Mayor &c,, of New York, 5 N. Y., 369.)

(34) Where power is conferred upon a municipal corporation to make
public improvements and keep them in repair, the duty to make them is
quasi-judicial and discretionary, for a failure to perform which no action
lies. (ANUs v City of Brooklyn, 32 N. Y, 489.)

(35) A municipal corporation, if charged with the duty of keeping its
structures in repair, 1s bound to exercise a reasonable degree of watchful-
ness in ascertaining from time to time their condition.

(36) Where the dilapidation of a structure ofa municipal corporation 1s such
that it is an ordinary result of its use, and would be discovered on inspec-
tion, the corporation is liable for the damages resulting therefrom, (McCarthy
uv. City of Syracuse, 46 N. Y., 194.)

(37) A municipal corporation owes no duty to a citizen to see that its
property, used in a public celebration which it has authorized, is carefully
managed or controlled. (Smith uv, City of Rochester, 76 N.Y, 506.).

(38) A municipality, in the absence of a notice of impurity of the water
in its wells, is under no duty to make from time to time an analysis for
the purpose of ascertaining whether it is pure. (Danaher v. City of
Brooklyn, 119 MN. Y., 241.)

(39) Where the legislature provides that a municipal corporation or a
quasi-municipal corporation shall succeed to all the liabilities of another,
and that all claims for damages resulting from negligence which there-
tofore might be prosecuted against the latter shall be prosecuted against the
former, it does not mean to include a claim arising before the passage of the
act. (Reid v. The Mavor, &c., of N. Y., 139 NV. Y., 534-)

Respondeat Superior.
({2 General.)

(40) Where a public work is being carried on for the benefit of a muni-
cipality by commissioners appointed pursuant to authority from the Legis-
lature, the municipality is not liable for the negligence of such persons
ortheir servants. (Mayor &c. of N. Y. v. Bailey, 2 Den., 433-)

(41) Where the officials of a city, having the power, by assessing land
benefitted by an improvement, to raise the necessary funds to pay the
contractor for making such improvement, neglect to make the necessary
assessment, an action will lie in favor of the contractor against the city to
recover the damages sustained thereby. (Baldwin City of Oswego. 1 Abb.,
C, A. D , 62.)
504 Cases ConiFIEp. (Cuap. II.

 

(42) A town is not the superior of its assessors and collectors of taxes so
as to be responsible for their mistakes whereby a taxpayer is made to pay
too much for taxes. (Lorillard v. Town of Monroe, 11 N. Y, 392,)

(43) A municipal corporation is not answerable for the negligent acts of
an employee of a department of such corporation, which is created by the
Legislature not for the purpose of managing the corporation’s property,
but of providing for the general welfare of the citizens. (Maximilian v.
The Mayor &¢., of N. Y., 62 M. Y., 160,)

(44) The City of New York is not answerable for the negligence of the
members of the Board of Revision and Correction in failing to confirm an
assessment. (Zone v. The Mayor &c., of N. V.,70 MN. Y., 157.)

(45) The municipality of New York City is not responsible for the
negligence of officials appointed by its Department of Public Instruction. Or,

(46) It is not the superior of the officials in its Department of Public In-
struction. (amv. The Mayor, 70 N.Y., 459. See Walsh v. Mayor, 107 N.
Y., 220, Bridges, infra.)

(47) The master is not liable for damages sustained by one servant from
the negligence of aco-servantin constructing a scaffold for their joint use
in prosecuting their work. (fudson v. Village of Olean, 116 WN. Y., 655.)

(48) Where a city under due authority of law requires that lateral connec-
tions between the public mains in its streets and adjoining lots shall be
made by its own workmen under the direction of its superintendent, the
fact that it is re-imbursed the cost by the person applying to have the
connection made, does not operate as matter of law to make such person,
and not the city, the master of the workmen. (Wilson v. City of Troy, 135
NV. Y., 96.)

(See also Art. I of Tit. JV, Masters, same heading.)

(Contractors.)

149) A clause in a contract for work that the contractor shall conform the
work to such further directions as shall be given him by the other party
does not operate to make the latter liable as a master for the negligence
of the contractor’s servants employed and paid by him. Pack v. The Mayor
&c., of New York, 8 N. Y., 222.) :

(50) A clause in a contract for work, that the contractor shall do the work
under the @irections and to the entire satisfaction of the other party, does
not operate to make the latter liable as a master for the negligence of the
contractor’s servants employed and paid by him. (Kelly v. The Mayor &c.,
of New York, 11 N. Y., 432.)

(51) A municipal corporation, making a contract for an excavation in its
street, containing no requirement for guarding it, is liable for the damages
resulting to passers-by from the contractor’s failure to guard it properly.
(Storrs uv. City of Utica, 17 N. Y., 104.)

(52) The fact that work is being done by a contractor does not relieve a
municipality from responsibility for damages resulting from a negligent
Caus. Nee. } Casts CopiFiep. 505

 

doing of it, where such negligence is that of one of its own officials under
whose direction the work is done, as well as that of the contractor. (Buff,
& H. Turnpike Co, v. City of Buff., 58 N. Y., 639.)

(53) A person who employs a contractor to do work not in its nature a
nuisance, but which becomes so by reason of the manner in which the
contractor has performed it, becomes responsible for the nuisance, if he
accepts the work in that condition. (Vogel v, the Mayor &c., of New York, 92
4X. Y., 10.)

(54) Opening a street for travel is equivalent to accepting a contractor’s
work, so far as obligation to the public to keep the street safe for travel
is concerned. (Turner v. City of Newburgh, 109 N. Y., 301.)

(55) Damages resulting from the noise of an explosion, from a negligent
blast in an excavation by a contractor in a public street under a contract
with a municipality whereby the contractor is to pay for all damages
done by the blasting, are not recoverable from the municipality. (Herring-
ton v. Village of Lansingburgh, 110 N. Y., 145.)

See also Art. Lof Title IV, Masters, same heading.

(Special Officials charged.)

(56) Where an officer of a municipal corporation is charged with the duty
ef maintaining its roads and bridges, the corporation is responsible for
the manner in which he performs that duty. (Conrad v. Trustees of Village
of Ithaca, 16 N’. ¥., 158.)

See also Title I/I, Public Officers ; also chap. V, Defenses.

As Neighbours.

(57) It is the duty of owners of real property, municipal as well as private,
to keep their premises in such condition as that they shall not be the cause
of injury to a neighbor’s property in ways that common prudence should
foresee. (The Mayor &c., of N. Y. v. Bailey, 2 Den., 433.)

(§8) Where a municipality, in grading a street, does so carefully, it is not
liable for the damages sustained by an adjoining owner resulting from his
land slidinginto the street. (Radcliff’s Ex.v. The Mayor Sc., of Brooklyn,
44M. Y, 105.)

(59) When an abutter owns to the centre of the street, the municipality
may not interfere with its grade, when once established, except in accord-
ance with specific statutory provisions. (Folmsbee v. City of Amsterdam, 142
4M. Y., 118.) ,

(60) Ifa city grants land under water with the privilege of filling earthin,
it must not construct adjacent sewers so as to wash away earth thus filled
in. (Duryea v. The Mayor &c. of N. Y., 62 NV. Y., 592.)

(61) Where the Legislature directs the common council of a city to rebuild
at the city’s expense a dock to a waterway, which does not appear to be a
public highway, which dock had been negligently constructed by commis-
sioners appointed by the Legislature, the municipality is not liable for the
5°6 Cases CopIFIFD. (Cuap. II.

 

damages sustained by an adjacent property owner by reason of the
failure of the common council to rebuild such dock. (MV. ¥. & Bkiyn Saw-
mili & Lumb. Co. v. City of Bhlyn, 71 N. Y., 580.)

(62) The rule as to excavations on private premises near highways does
not apply to excavations on private premises near high-water mark.on the
sea-shore. (Murphy v. City of Brooklin, 8 N Y., 642.)

(63) An excavation fifty feet from the highway is not near enough to be
within the rule as to excavations on private premises near highways.
(Murphy v. City of Brooklyn, 98 MN. Y., 642.)

(64) In constructing a wall along the side of astreet, which is cut along
the side of a hill, a municipality is under no duty to an owner of property
on the lower side so to construct the wall that water, which before would
have flowed on to such property, wiil no‘longer do so. (Watson v. City of
Kingston, 114 N. Y., 38.)

See also Art. IV of Title IV, Owners of Property, sub nom, Neighbours.

Notice.

(65) A municipal corporation, whose charter requires it to keep its sewers
in repair, is liable for the damages to adjoining property resulting from
its failure to do so, whether it has notice of the defect or not. (Barton v.
City of Syracuse, 36 NM. Y., 54. McCarthy v. Same, 46 WV. Y., 194.)

(66) Where the dilapidation of a structure of a municipal corporation is
such that it is an expectable result of its use, and is discoverable on in-
spection, notice of an actual dilapidation is not necessary to fix upon the
corporation a liability for the resulting damages. (A/cCarthy v. City of
Syracuse, 46 N. Y., 194.)

(67) Where an excavation is made in a city street under contract with the
city or a department thereof, it is immaterial, upon the question of the city’s.
liability for damages from its dangerous condition, that the city had no
notice of such condition. (Brusso v. City of Buff., 90 NV. Y., 679.)

(68) Mere negligence in failing to remove a temporary obstruction in its
street does not of itself constitute a nuisance so as to render the munici-
pality liable for maintaining a nuisance. (Dickinson v. The Mayor &c., of
N.Y., 92 . V., 584.)

(69) Whe" a statute says thata municipality shall not be liable fordamages
sustained by reason of its highways being unsafe, unless its officials have
actual notice of its condition at least a day before the accident, it means.
whatitsays. (M@cNally v. City of Cohoes, 127 N. Y., 350.)

- (70) If the trustees of a village, who by statute are made the commis-
sioners of highways for the village, appoint another person as street
commissioner to superintend and examine the streets, notice to him of a
defect is notice to the corporation. (McSherry v. Village of Canandaigua, 129
WN. Y., 612.)

And see Chap. X, Miscel, Subj., sub nom, Notice.
Caus. NEG. ] Cases CopIFIED. 507

 

Funds.

(71) Neither highway commissioners nor towns having their liabilities,
are responsible for an error in judgment in repairing one highway rather
than another, when for lack of funds they have not money enough to make
bothsafe for travel. (‘ifonk v. Town of New Utrecht, 104 N. Y., 552.)

(72) The fact that commissioners of a town have no money in hand to
make a highway safe, is no excuse for neglect to do so, where they have the
power by law to raise the money, (lvory v. Town of Deer Park, 116 N. Y.,
476.)

(73) Under chap. 700 of Laws of 1881, making towns liable for damages to
any person by reason of defective highways in those cases where commis-
sioners of highways were liable at the time it was passed, the town is not
liable for injuries sustained in consequence of a defective highway, if its
commissioner had no funds in hand to repair it, even though its supervisor
had the necessary funds and had not given them to the commissioner after
demand. (Clapper v. Town of Waterford, 131 N. Y.,.382.)

Not Insurers.

(74) A municipal corporation is not an insurer against injury occasioned
by the falling of a structure projecting over the highway. (Hume v. The
Mayor &c.,0f N. Y¥.,47.N. Y., 639.)

(75) A municipal corporation is not a guarantor to the individual citizen of
the absolute safety of the walls within its limits. (Caz v. City of Syracuse,
95 WV. Y., 83.)

(76) A municipal corporation is not an insurer against damages from works
of its construction. (Henney v. City of Brooklyn, 120 N. Y., 164.)

Plans.

(77) Constructing a sidewalk in a city street with a grade so steep that
passers-by are likely to slip on it, is, where the natural grade does not require
it, negligence. (Clemence v. City of Auburn, 66 NV, Y., 334.)

(78) A municipality owes no duty to the public to see that the plans
upon which its public worksare constructed are safe. (Urquhart v, City of
Ogdensburg, 91 N. Y., 67.)

(79) Acquiescence by municipal authorities in an unauthorized change by
alot owner in the plan of a sidewalk, theretofore adopted by them, is not
to be deemed an adoption by them of a new plan, so as to bring an action
for damages resulting from its defect within the rule that the adoption of a
plan is so far a matter of discretion that an action will not lie for damages
resulting from a faulty plan. (Urquhart v. City of Ogdensourg, 97 N. Y., 238.)

(80) Where it appears during the building ofa public work that the original
plan upon which it is being built is defective, and that the carrying it out
will result in injury to neighboring owners, if the municipality persists in
carrying out the plan, it is liable for the damages resulting to a property
owner. (Siefert v City of Brooklyn, 101 N. Y., 136.)
508 Cases CODIFIED (Cuap. II.

 

(81) When a highway is unsafe by reason of its being constructed on a
defective plan, adopted by commissioners over which a town has nocontrol,
it is not, under Laws of 1881, chap. 700, made responsible forinjuries arising
therefrom. (Monk v. Town of New Utrecht, 104 N. Y., 552.)

(82) Where a statute provides for a publie improvement by municipal au-
thorities, and does not prescribe the plan or details of the work, by means
of which the end is to be accomplished, but leaves it to the judgment of
the persons empowered to do it, if they act in good faith the corporation is
not responsible for the consequences of their erroneous judgment in the
adoption of a taulty plan, (Garratt v. Trustees of Village of Canandaigua,
135 WV. Y., 436.)

Permits.

(83) When a property owner constructs a drain through,a street to connect
with a sewer, under permission from the municipality, the latter must see
that it is properly constructed. (Wendell v. Mayor &*c. of Troy, 4 Abb. C.
A.D), 5632)

(84) A municipal corporation having power by its charter to give permits
to lot owners to make excavations in its streets owes no duty to the public
to see that a street is at once made safe after such an excavation has been
made. (Afasterson v. Village of Mt. Vernon, 58 N. Y., 391.)

(85) Where a sewer is altered by a private person under permission ofthe
municipal authorities, it is the duty of the latter to see that the alteration is
properly made. (Mims v. The Mayor &c. of Troy, 59 N. Y., 500.)

(86) A municipality is not answerable to a passer-by for the damages sus-
tained by him from an explosion in pipes under its streets, not laid by
itself, and where it does not appear that on giving its permit to lay them it
had omitted to prescribe proper regulations for, or to exercise due supervi
sion over, such laying. (Hunt v. The Mayor &c. of N. Y., 109 N. Y., 134.)

(87) A municipality, which grants for compensation a permit to store a
private wagon in a public street in violation of the statute forbidding obstruc-
tions of its streets, maintains a nuisance. (Cohen v. The Mayor &c. of
N. Y., 113 WM. Y., 532, 128 WV. Y., 594.)

(88) Where a mayor is authorized by ordinance to grant a permit to do an
act, which may or may not be a nuisance according as it is done in one or
another part of the city, and he by mistake of judgment grants permission
for the acto be done in a locality where it is a nuisance, the municipality
is answerable for the special damages sustained by a citizen therefrom.
(Spier v. City of Brooklyn, 139 N. Y., 6.)

Highways.
& v (What are.)

(89) An ordinance of a municipality providing that all streets and alleys
opened for five years shall become streets and alleys for all purposes and
that the common council shall have the same authority over them as over
those laid out by it, is an acceptance of such an alley, dedicated by its
Caus. Nee. } Cases CopIFIEp. 509

 

owner, so as to make the municipality bound to keep such alley insafe state
fortravel. (Reguav, City of Rochester, 45 N. Y., 129.)

(90) Where a road is used for public travel for many years, and the town
authorities recognize and treat itasa highway, they must keep it sfe for
travelasa highway. (lvory v. Town of Deer Park, 116 N.Y., 476, Bryant v.
Town of Randolph, 133 N. Y., 70.)

(91) A municipality is under no duty to keep in a fit state for travel that
part of a street which, though laid out as a street, has never been used as
such and has been fenced off for more than six years. (Horey v. Village
of Haverstraw, 124 N. Y., 273.) é

(92) Where a municipality takes proceedings to condemn land for street
purposes, and before all the steps have been taken to put it in fit state for
travel, it permits the public to use it continually as astreet, it is answerable
for the damages to a passer-by resulting from its being allowed to remain

vin an unsafe condition. (Seymour v. Village of Salamanca, 137 N. Y., 364.)

And see Art. L// of Tit. IV, same heading, also Chap. V, Defenses.
(Alleys.)

(93) When a citizen digs a ditch in its alley, the municipality, knowing of
it, must not leave it open and unguarded. (Hickok v. Trustees of Village of
Flattsburgh, 16 N. Y., 161, note.)

(Briages.)
(94) A municipality constructing a bridge without authority is under no
duty to buildit properly. (Zhe Mayor v. Cunliff, 2 N. Y., 165.)

(95) The cities of New York and Brooklyn are liable for the damages
resulting to a passer-by from the negligence of workmen on their bridge.
(Walshv. The Mayor &c, of N. ¥., 107 WN. Y., 220.) (Superseded by Laws
1891, chap. 128, Reid v. Mayor, 139 NV. V.. 534.)

(96) Ifa village builds a foot-bridge alongside of a highway-bridge in
such a manner as seemingly to form a part thereof and to lead persons to
believe that they may properly drive thereon, it must make it strong enough
to make good its appearance. (Fisher v. Village of Cambridge, 133 NV. Y., 527.)

(Docks, Piers, Wharves.)
(97) A pier owner must have string-pieces on his pier to protect restive as
well as docile horses. (Kennedy v. The Mayor &c. of N. Y., 73 N. Y., 365.)

(98) Ownership by a city of a pier does not cast upon it the duty of. keep-
ing the waters near the pier free from obstructions placed there by others.
(Seaman v. The Mayor, 80 N. Y., 209.)

(Drainage.)
(99) Where the necessity for drainage is created by the act of a munici-

pality, the rule that it is not liable for an omission to supply drainage does
not apply. (Byrnes v. City of Cohoes, 67 N. Y., 204.)

(Ico) .A municipality must not construct its gutters so that they will cast

_water on an adjoining lot, (/d.)
510 CasEs CODIFIED. (Cuap. IT.

 

(101) A municipality, in grading its streets, owes no duty to adjoining
property owners to provide means for carrying off surface water from the
streetso as to prevent it draining on to their property. (Lynch v. The
Mayor &c, of N. Y.,76N. Y., 60.)

(102) Where a city contractor, in the exeoution of a contract for grading a
street, makes excavations in it, whereby surface water is turned upon
adjoining lots and abandons the work, the municipality is liable to the lot
owner for the damages sustained by him, if it neglects to avail itself of a
clause in the contract permitting it upon such abandonment to take
charge of the work. (Vogelv. The Mayor, 92 N. Y., 10.)

(Drains, see Sewers.)

(Embankments.)

See Gillespie v. City of Newburgh, 54 .N. Y., 468, Chap. III, Cont. Neg.,
sub, nom. Travellers,

(103) A municipality is under no duty to keep 'safe for travel a bridgeand
its approaches, used by the public as a highway in continuation of a public
road, which, although within its boundaries, belongsto thestate. (Carpenter
wv. City of Cohoes, 81 N. Y., 21.)

(104) A municipality owes no duty to occupants of vehicles to have guard-
rails placed along an embankment which is separated from the roadway by
a wide sidewalk. (Hubbell v. City of Yonkers, 104 NV. Y., 434-)

(105) A municipal charter empowering a common council to compel rail-
ings to be placed at ‘‘exposed places’’ in the streets does not, so far as
occupants of vehicles are concerned, impose any duty on the municipality
to see that a railing is placed along an embankment which is separated
from a roadway by a wide sidewalk. (/d.)

(106) A town is not bound to put a guard-rail along an embankment ona
country road, which is so guarded by trees that no one can drive off except
by turning at right angles into a narrow break of the tree line, where the
highway has existed in this condition for many years, and noaccident from
driving off has ever occurred before. (Glasier v. Town of Hebron, 131 N.
¥., 447.)

(Grading, see ‘‘As Neighbors,’’ supra.)
(Navigable Streams.)

(107) A city is under no obligation to keep the navigable waters, on which

it is situated, safe from obstructions, (Seaman v. The Mayor, 80 N.Y., 230.)

(108) Mere permissive language in a statute, giving a municipal corpora-
tion the right to remove obstructions in a navigable stream, does not
create a duty forittodoso, (Coonley v. City of Albany, 132 N.Y, 145.)

(Xoads.)

(109) A town is not liable for the negligence of the Commissioner of High-
ways of such town in failing to keep its highways in repair. (People ex rel
Loomis v. Board of Town Auditors, 75 N. Y., 316.)

(This was prior to the act of 1881.)

(110) A municipality is as much bound to keep the roads within its limits
safe for travel as itis the streets. (Brusso v. City of Buffalo,go N. Y., 679.)
Caus. Nze. ] CasEs CopDIFIED. 511

 

 

(111) It is the duty of town commissioners, having the means to do so, to
guard highways at curves, when they have knowledge that there is an
‘excavation near by, so situated that a traveller at night not acquainted
with the curve would by pursuing a straight course be likely to plunge
into it. (/vory v. Town of Deer Park, 116 N. Y., 476.)

(112) A highway, in which a road scraper has been carelessly left over
night, is a defective highway. (Whitney v. Town of Ticonder., 127 NV. Y., 40.)

(113) Where a town has several hundred miles of roads within its limits,
many of them in mountainous parts, its commissioners of highways are not
guilty of negligence‘in failing to observe the fact that a log fender, placed
on the edge of a mountain road in the woods, has had its utility as a fender
impaired by an accumulation of earth on the road-bed which has, in the
lapse of time, raised its surface nearly to the top of the fender. (Lane vz.
Town of H., 142 N. Y., 510.)

(Sewers.)

(114) A municipality is not bound to provide sufticient sewers to carry off
all the rain which may fall within its boundaries. (A@//s v. City of Brooklyn,

32 N. ¥., 489.)

(115) Sewers must be kept in repair, see Barton v. City of Syracuse,
McCarthy v. same, supra sub. nom, Notice.

(116) A municipal corporation is not liable for the damages resulting from
the overflow of a sewer due to a casual obstruction, where it is properly
builtand in good repair (Smith v. The Mayor &c. of N.Y., 66 N. Y., 295.)

(117) A municipal corporation is not liable for damages to a passer-by due
to its sewer on private property being out of repair, where it has no notice
of the defect. (Murphy v. City of brooklyn, 98 NV. Y¥., 842.)

(118) A municipality is not bound to maintain as a public sewer a private
drain which it purchases. (KXosmakv. The Mayor, 117 N. Y., 361.)

(Sidewalks .)

(119) A village corporation is liable for the damages resulting from the
negligence of its trustees, acting as commissioners of highways, in repairing
its sidewalk. (Weet vu. Trustees of Vill. of Brockp., 16 N.Y., 161. Note.)

(120) It is negligence in a municipality to construct a sidewalk over a
deep hole, without filling it up. (A/ceMahon v. The Mayor, 33 N. Y., 642.)

(121) It is negligent in a municipal corporation to allow the existence of an
unguarded excavation in a sidewalk. (Davenport v. Ruckman & Mayor &c.,
37 NV. Y., 568.)

(122) A municipality must not permit an obviously dangerous covering
over a sidewalk to remain. (Hume v. The Mayor &c.of N. Y.,74N. Y¥.,
264, 47 WV. Y., 639.)

(123) A provision in a municipal charter requiring lot owners to keep side-
walks in good repair does not warrant a municipality in relying on a
presumption that this has been done. (Miven v. City of Roch., 76 N. Y., 619.)
512 Casrs CopDIFIED. [Cuap. II.

 

(124) Even though a municipality may not have constructed a sidewalk,
yetif it has notice that it is unsafe, and has power under its charter to
make it safe, itis bound to do so, (Saudsbury.v. Vill, of Ithaca, 94 N. Y., 27.)

(125) A village, on becoming incorporated under the Village Act, must
remedy defects theretofore existing in its highways. (Melson v. The Village
of Canisteo, 100 NV. Y., 89.)

(126) It is not negligent in a municipality to maintain stepping-stones on
its sidewalks for the conveuience of persons alighting from vehicles.
(Dubois v, City of Kingston, 102 N. Y., 219.)

(127) Ifa municipality chooses to permit an unsafe plank walk to remain,
partly on its own sidewalk proper, and partly on the land of an adjoining
‘owner, without anything to mark the dividing line, it is under the same
liabilities for damages to travellers over one partas over the other. ( Fewhurst
v. City of Syracuse, 108 N. Y., 303.)

(128) A municipal corporation must see that awnings over its sidewalks
aresafe. (Bieling v. City of Brooklyn, 120 NV. Y., 98.)

(129) It is negligence in a municipality after notice to leave its sidewalks
covered with water and unguarded. (Bly v. Vill. of Whitehall, 120 N.Y., 506.)

(130) A municipal corporation charged with the duty of keeping its streets
in repair is liable to a passer-by for the damages sustained by falling on ice
concealed by snow which had remained on its sidewalk long enough for
the city officials to become apprised of its existence. (Zoddv. City of Troy,
61 NV. Y.. 506, Gillrie v. City of Iockport, 122 N. Y., 403.)

(131) Something more than a slippery sidewalk must be shown to enable
a person, who has slipped on it, to recover from the municipality damages
fora fall. (Ktsney v. City of Troy, 108 NV. Y, 567.)

(132) The duty of a municipality to keep its sidewalks reasonably clear
from ice does not require it in continuously severe weather to remove from
its sidewalk day by day the ice formed over night from the drippings of
improperly guarded eaves of houses. (Kavenyv. City of Troy, 108 N.Y., 571.)

(133) A municipality is entitled to a reasonable time to remove ice from its
sidewalk, after the failure of the adjoining lot owner to comply with an
ordinance requiring him to remove it. (Zaylor vu. City of Vonkers, 105 N.
Y., 202. Ayers v. Village of Hammondsport, 130 N.Y., 665.)

See also Diveny v. City of Elmira,51 N. Y., 506. Pomfrey v. Village of
Saratoga Springs, 104 N. Y., 459. McSherry v. Trustees of Village of
Canandaigua, 129 NV. Y., 612, as to ice and snow.

(Streets.)

(134) A municipality must duly guard excavations inits streets. (Lloyd v.
The Mayor &c., of N. ¥.,5 N. Y., 369.)

(135) It is the duty of a municipality when any excavation is made in its
street, to see that the rest of the street, if notclosed, is kept safe for passage.
Hutson v. The Mayor &c. of N. Y.,9 N. ¥., 163.)
Caus. Nee. ] — Cases CoDIFIED. 513

 

(136) A municipality is not liable for damages resulting from obstructions
in its streets not placed there by it, and of which it has no notice. (Griffin
v. The Mayor & ct. of N. Y.,9 N. ¥., 456.)

(137) A municipality having permitted a construction in its highway
designed to facilitate its use, is bound to maintain the same in safe condi-
tion. (Regua v. City of Rochester, 45 N. Y.. 129.)

(138) The duty of a municipal corporation, empowered torepair its streets,
to keep them in repair is a ministerial one, for a negligent omission to per-
form which an action lies by a party injured thereby. (Hines v. City of
Lockport, 50 N. Y., 236.

(139) The mere existence of an obstruction in a street is not sufficient to
charge a municipality with a liability for damages resulting therefrom to a
passer-by. (Gorhamv. Trustees of Vill. of Cooperst., 59 N. Y., 660.)

(140) The rule as to the liability of municipal corporations for damages to
the citizen from defective streets, applies to villages whose charters give
power to trustees to appoint overseers of highways and to require the
inhabitants to aid in repairing streets. (Weedv. Vill. of Balist., 76 N. Y., 329.)

(141) It is not negligence for a municipality to maintain in its streets
hydrants set in the curb, with nozzles projecting a short distance over the
gutter. (Ring v. City of Cohoes, 77 N. Y., 83.)

(142) A municipality must keep its streets in a safe condition for travelling
on them by Sabbath breakers, as well as for those travelling lawfully.
(Platz v. City of Cohoes, 89 N. Y., 219.)

(143) The City of New York is responsible for the condition of the streets
in the ‘‘Annexed District.”” (Zhrgott v. The Mayor, 96 N. Y., 264.)

(144) Where passage along a street is dangerous by reason of something
over which the municipality has no control, it is not negligent for it to omit
to erect a barrier against the danger, if the barrier itself might be a source
of danger to the traveller. (Veeder v. Village of Little Falls, 100 N. Y., 343 )

(145) A municipality must see that a crosswalk, relaid after removal foran
excavation, is properly relaid. (Zurner, Fuia, v. City of Newburgh, 109 N.
Y., 301. Turner, Geo. D., v. City of Newburgh,109 N. V., 637.)

See also Pettengill vu. City of Yonkers. 116 N. Y., 558.

Cross REFERENCES.

See Title III, Public Officers; Title IV, Art. 1, Masters; Id.
Art. 1V, Owners; Chap. III, Cont. Neg.; Chap. IV, Ques. of Fact;
and other chapters as to various questions common to actions
against municipalities and other defendants ; also Chap. X,
sub. nom. Notice.
514 Cases CopDIFI£D. [Cuap. II.

 

(Chap. [[—continued.)

TITLE II1.—Quasi-MunIciPAL Bopigs, BOARDS, PUBLIC OFFICERS,
PuBLIC CONTRACTORS.

§ 63. Whether a quasi-municipal corporation, such as a
board, or department of a city government, invested with cor-
porate powers and rights of property, is answerable for the
negligence of persons employed by it, has not yet been directly
adjudicated.

§ 64. A judicial officer is not answerable in damages for any
negligence in the discharge of his judicial duties.

§ 65. Where a judicial officer is invested with ministerial
duties, he is, in the discharge of the latter, to be treated as an
administrative officer.

§ 66. An administrative officer who acts contrary to, or
neglects to act in accordance with, his official duty, is answer-
able in a civil action for the resulting damage to any private

citizen.
Or: Administrative officers owe to every citizen a duty to perform
their official duties properly.

§ 67. A charge ofnon feasance cannot be maintained against
a public officer, where an expenditure of money was necessary
to enable him to perform the duty, if he did not have sufficient
funds in his possession, or the power to get them.

§ 68. Militia officers must not, when on parade, give orders
to their soldiers which are likely to result in injury to spectators,
bi ta due warning thereof to the latter.

§ 69. A public officer, whose action in a ministerial capacity
is one of the necessary steps towards enabling a citizen to
obtain payment of a valid claim, owes to that citizen a duty to
take that action. :

§ 70. A public contractor, who contracts to keep a highway
in good repair, owes to every citizen who has lawful occasion
to use it, the duty to keep it safe for travel.
Caus, Nec. ] Cases CopIFIEp. 515

 

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS:

References to Statutes. ' Sheriffs.

Boards. Militia Officers.
Com’rs of Highways. Inferior Officers.
School Officers. Miscellaneous Officials,
Judicial Officers. Public Contractcrs.

References to Statutes.

(146) The duties of administrative officers are too numerous to admit of
recital here. Moreover, changes are being made in the revision of the
generallaws now going on. (See The General Municipal Law, The County
Law, The Town Law, The Highway Law, etc., Collins’ Supplement of
General Laws, vols. V and VI of the 8th Ed. of Rev. Stat.)

(147) Commissioners of Highways were for ten years exempt froma direct
liability to the citizen for damages sustained by reason of defective highways
or bridges, and their liability therefor was only to the town which had been
mulcted in damages on account thereof. (Laws of 1881, chap. 700, §§ 1 and 3;
repealed by § 180 of The Highway Law.)

(148) A sherift who fails to return a mandate as therein directed is liable
to the party aggrieved for the damages sustained by him. (Code Civ. Pro. §
102—am'd by Laws of 1877, chap. 416.)

(149) Since 1891 the trustees of the New York and Brooklyn bridge are
liable in ‘‘their corporate capacity’’ (whatever that may mean) for any
damages growing out of negligence in the management or care of the bridge.
{Laws of Tor, chap. 128, § 7.)

This act is an excellent specimen of the carelessness with which
statutes are drawn. It is useless for our profession to throw
the blame upon ‘‘ignorant legislatures.” We must bear it. The
“ignorant legislator’’ usually gets a lawyer to draft his bill. If acoach-
and-four can be driven through any act of Parliament, it may well be
asked through what law books and grammars do the draftsmen of our
statutes gallop? Take the following sentence in this act, italicized to
emphasize the question just asked. ‘* All claims and demands growing
out of the bridge, upon contract and for negligence and for wrongs, which
heretofore might be prosecuted against the two cities or either of them,
shall be prosecuted against the trustees of the New York and Brooklyn
bridge, and ¢hey shall be liable therefor, in ¢#e¢v corporate capacity.”

The draftsman not only seeks to re-classify choses in action, as claims
upon contract, for negligence, and for wrongs, but he has a turn for
metaphor. The bridge is a legal herbarium. Negligence is a seed,
which some trustee sows upon the bridge. Watered by an accident,
tended by the zealous care of a contingent fee, it sprouts up as a claim.
Interestingspectacle to contemplate, the seeds of contracts, of negligence
and of wrongs growing out of a bridge!!!

There are no words creating a corporation in the act, and in Walsh v.
The Trustees of the N. Y. & Brooklyn Bridge, 96 N. Y., 427, it was held
that the original act of 1875 did not constitute the trustees a corporation.
516 Casts CopDIriEp, (Cuap, IT.

 

What, then, is the meaning and effect of the phrase, that the trustees
shal) be liable in their corporate capacity? A trustce inay be liable
individually, or in his capacity asa trustee, but how can any man be
liable in a corporate capacity unless he is a corporation solv? Is the
use, or rather the misuse, of these words to have the result of necessi-
tating an inference that the Legislature intended tocreate a corporation,
although there isnot another word in the act from which such intention
can be gathered?

Eoards.

(150) The doctrine of respondeat superior does not apply to the commis-
sioners of emigration in the case of the loss of an emigrant’s baggage at
Castle Garden, (Murphy v. Commissioners of Emigration, 28 N. Y., 134).

(151) The Board of Education in the city of New York is not responsible
for damages resulting from the negligence of those in charge of, or re-
pairing, the public schools. (Donovan v. Board of Ed., 85 N. Y., 117.)

(152) Trustees appointed by the Legislature to build a structure for a
municipality to be owned by it, are not responsible for the ncgligence of
their employees engaged in the work. (Walshv. Trustees of N. Y. & Bhiyn
Bridge, 96 NV. Y., 427.)

Commissioners of Highways.

(153) Where commissioners of highways have not sufficient fundstorepair
all the highways under their care, negligence can not be predicated of their
failure to repair one rather than another. (Garlinghouse v. Facobs, 29 N.
Y., 297.)

(154) Commissioners of highways, having funds in hand or under their
control to repair a bridge, are liable to an individual for the damages
specially sustained by him from a negligent omission to repair it. (Hover
v. Barkhoof, 44 N. Y., 113.)

(155) Commissioners of highways are not liable for the neglect of their
predecessors. (Gould v. Booth, 66 N. Y., 62.)

(156) Commissioners of highways when grading a highway owe no duty to
adjoining owners to provide a channel for drainage of surface water. (/d.)

(157) The duty of a public officer to maintain streets and bridges in good
repair and safe for travel does not include a duty to protect travellers from
an insalg condition of the highway produced by opening a drawbridge,

over the operation of which they have no control. (/étapatrick v. Slocum et
al, 89 MV. Y., 358.)

» (158) Highway commissioners are not responsible for an error in judgment
in repairing one highway rather than another, when for lack of funds they

have not money enough to make both safe for travel. (Monk v, Town of
New Utrecht, 104 NM. Y., 552.)

(159) A street commissioner who has been negligent in the performance of

an official duty is personally liable for the resulting damages. (Bennett v,
Whitney, 94 N. Y., 302.)
School Officers.

(160) A school trustee, who has not been charged by the board of which he
isa member with the performance of a duty of the board, is not liable
individually for the neglect of the board to perform ils duty. (Bassett v,
Fish, 75 NV. ¥., 303.)

Caus. Nuc. ] Cases Copiriin, 517

(161) Ward trusices of public schools, acting gratuilously for the public
are not responsible for the negligence of persons employed by them to
do things which they are not personally bound todo, (Monowiny. AlcAlpin,
85 VM. ¥., 185.)

(162) A school superintendent whose duty is to superintend the repairs to
public school buildings is not the superior of workmen employed by the
schoo] trustees lo make repairs. (/d.)

Judicial Officers.

(163) A justice of the peace is not answerable as for negligence in failing to
decide a cise within the statutory time, (Zvarts v. Kiehl, 102 N. Y., 206.)

(164) It is not negligent in a surrogate to deposit money of an estate in
good faith with a private banker in good standing and credit, pending pro-
ceedings to determine the parties entitled thereto. (The People ex rel Nash
wv, Faulkner, 107 N. ¥., 477.)

Sheriffs.

(165) ‘The neglect of a sheriff to take into his own possession goods levied
upon by him under exccution renders him liable for any loss of them by fire.
(Browning v. Hanford, 5 Den. 586.)

(166) The neglect of 1 sheriff to return an execution on or before its return
day renders him liable for its umount. (Ledyard v. Fones,7 N. ¥., 550.)
(If he could not have collected it the burden is on him to show it, in
which case the damages are, under General Term decisions, only
nominal.)

(167) The return by a sheriff of an execution a few days after ils return
day is no defence to an action against him for damages for neglecting
to return it within the time. (Brookficld v. Remsen, 1 Abb. C. A. D., 210.)

(168) The mcre failure of a shcriff to remove property, levied on by him,
from the position in which he finds it, is not by itself negligence on his
part. (Atvore v. Westervelt, 21 N. ¥., 103.)

(169) A sheriff ig not an insurer of yoods in his custody as sheriff. (AZoore
v. Westervelt, 297 N. Y., 234.)

(170) A sheriff is not guilty of negligence in failing to collect an execution
out of property levied on by him, where the judgment creditor has not
tendered him a bond of indemnity after a sheriff's jury has on due notice
to the creditor found the {iile to it not to be in the judgment debtor. (7%e
People v, Ames, 35 N. \., 482.)
518 Casges CoDIFIED. [Cuap. II.

 

Militia Officers.

(171) It is negligent fora militia officer, drilling soldiers in the presence of
spectators, to order his men to fire when their guns are pointed towards the
spectators, even though he has previously taken precautions that their guns
shall not be loaded with ball. (Castle v. Duryea, 1 Abb., C. A. D., 327.)

(172) A militia officer, who orders the soldiers under his command at drill
to fire as a part of the drill, whereby a spectator in range of the guns is
wounded by a ball, is guilty of trespass, without regard to the precautions
that were taken by him and his subordinate officers against the guns being
loaded with ball. (Zd.)

Inferior Officers.

(173) An inferior public officer charged with the duty of repairing high-
ways and bridges out of specific funds to be collected by him, but being
under the general directions of a superior, is not liable for damages result-
ing from an omission to repair a particular bridge. (Bartlett v. Crozter, 17

Fohns, 439.)

Miscellan2ous Officials.

(174) A supervisor of a town, who neglects to present to the county board
of supervisors a property owner’s claim for damages assessed for laying out
a highway through his land, must himself respond in damages. (Clark v.
Miller, 54 N. Y., 528.)

(175) A person, who loses a claim against a municipality through the neg-
ligence of a public official in failing to take the necessary steps to make the
obligation a valid one, may recover the amount from the officer himself.
(Olmsted v. Dennis, 77 N. Y., 378.)

(176) Failure by a public official to exercise a power of appointment of po-
licemen to guard a public way is not a negligent omission of duty, if he has
allowed a subordinate to appoint them. (Hannon v. Agnew, 96 NV. Y., 439-)

(177) Where there are no data from experience on which to found a judg-
ment as to the number of men necessary to guard a public way, a public
official is not bound to foresee how many will be needed. (/2.)

(178) Where assessors of personal property for purpose of taxation have
neglected to correct an error in the roll, beforethe expiration of the time
allowed by law for its completion, they cannot correct it at all. (Zhe People
ex rel Chamberlain v. Forrest, 96 N. Y., 544.)

(179) The mere failure ofa county treasurer to collect a bond and mort-
gage in his hands as such is not negligence. (Woolley v. Baldwin, 101 N.Y.,
688.)

Public Contrac. .

(180) A contractor employed by the state pursuant to law to keep its high-
way in proper condition for travel is answerable in damages to any one
specially injured through his neglect todoso. (Robinson v. Chamberlait,
34. V., 389. Fulton Fire Ins. Co. v. Baldwin., 37 N. Y., 648.)
Caus. Nzc. ] Caszs CopIFIED. 519

 

 

(181) Itis the duty of a public contractor,when replacing the soil of a high-
way, to anticipate and provide for the natural effect of rain upon earth
excavated and replaced. (Fohknson v. Friel, 50 N. Y., 679.)

(182) Must guard excavations forsewers. (Farley v.McConnell,52 N. Y.,630.)

(183) A person who has contracted to keep a highway in repair, and to pay
all damages resulting from his failure to do so, is responsible in damages
to a person injured through such failure, without regard to the fact that an
official of the state had not thought the repair necessary. (French v.
Donaldson, 57 N. Y., 496.)

(184) A contractor, obligated to provide facilities for an inspection of his
work by aninspector for the other party to the contract, is not liable for the
damages resulting to the inspector from the negligence of his servant in the
management of a car, upon which the inspector rides to the scene of in-
spection, which car was not one of the facilities the contractor was bound
to or did afford for the purposes of the inspection. (Morris v. Brown, 11t
N. Y., 318.) >

(185) Itis not a ground to relieve a contractor from liability for damages
resulting to a passer-by on a sidewalk from the negligence of his workmen
in leaving a hole in it unguarded, that the contractor’s work on the sidewalk
was not the subject of a special contract, but was done under direction
of the city authorities by virtue of a clause in a contract for other work,
which reserved to the city the power to vary or extend thesame. (Carlock
wu. Freel, 125 N. Y., 357.)

(186) A public contractor, prosecuting a public work under due authority
from the state, is not liable to a private citizen for any resulting damage, if
he is not negligent. (Benner v. Atlantic Dredging Co., 134 MV. Y., 156.)

(187) Where the bed of a stream is interfered with by a contractor, under
contract with its owner, in a manner intended to be temporary and not
intended to be unlawful, and the result is not only a temporary diminution
ofa neighbor’s water supply, but its permanent loss through an under-
ground drainage which, though not expectable, was the result of such
interference, the contractor is not liable for the damages resulting from
such permanent loss, but only for the injury sustained during the temporary
interruption of the flow of thestream. (Covert v. Cranford, 141 XN. V., 521.)

See also next Title, Masters, sé zom. Contractors.

Cross REFERENCES.

See next Title, Art. I, Master, sub om. Resp. Super.; Art. IV,
Owners, sub nom.. Neighbours ; Chap. I!I, Contrib, Neg.; Chap.
IV, Ques. of Fact; Chap. V, Defences, and subsequent chapters.
520 Cases CopIFIED. (Cuap. IT.

 

(Chapter I1—continued.)

TITLE IV.— INDIVIDUALS, AND MEREIN OF CORPORATIONS.
a
ARTICLE I,—MASTERS.

§ 71. The actsof an agent in carrying on an undertaking
on behalf of a principal, under the latter’s instructions, general
or specific, direct or through another, are, whether in obedience
or disobedience to such instructions, considered in law to be
the acts of the principal himself, as to every person except fel-
low-servants in the same undertaking.

Or: Respondeat superior.

Itis well to bear in mind, that the reason for the rule that the princi-
pal must answer is found in the almost identical maxim, gui facit per
alium facit per se. (The former is used more particularly in actions ex
delicto, the latter in those on contract, Broom’s Legal Maxims, § 43.) If
the rule is stated in the terms of the text, itis evident that a master’s
liability to third persons for the negligence of his servants, is not really
an exception to the general rule that one man is not answerable for the
misdoing of another, The master is held liable for the act of his ser-
vant because itis his own act. If theact of a sérvant, for which he is

sought to be charged can not be considered as his act, he cannot be
held.

§ 72. Where two or more masters join in a common under-
taking, each retaining the direction and control of his own ser-
vants, the acts of the respective servants in carrying on the
work, are to be considered as the acts of their respective mas-
ters.

§ 73. Where a master hires or lends a servant to another per-
son, under whose direct instructions the servant is to pass, but
in whose work he is really doing the work of his own master,
his acts in so doing are to be considered as the acts of the
latter.

§ 74. A person who contracts with another person to havea
lawful thing donein alawful manner, free from his own instruc-
tions as to the way in which it shall be done, is not to be
regarded as a principal who is doing a thing by means of an
agent.

Or: One party to a lawful contract is not answerable for the manner
in which itis performed by the other party or his servants, where he

neither gives, nor has the right to give, any instructions as to the way in
which it shall be performed.
Caus. NEG, ] Caszs CopIFIED. 521

 

§ 75. Therule as to non-liability for the negligence of a con-
tractor does not apply where the subject matter of the contract
involves doing something, which is only lawful when permission
is obtained, and no provision is made in the contract for getting
the permission.

§ 76. The master is not responsible to one of his servants for
the negligence of a fellow-servant, unless the latter was at the

time occupying as to the former,.the place of the master.

Or in other words, was the a/ter ego of the master.

If the theory on which a master can be held liable to one servant for
the negligence of another were steadily remembered, the difficulties of
this much disputed subject would be greatly lessened,

The liability of a master to a servant, or to an outsider, for his own
negligence falls under the general rule that every man is answerable
for his own acts. His liability to an outsider for his servant’s negli-
gence is based on the rule that the act of his servant is his act. Upon
what, then, should hang a liability to oneservant for the act of another ?
It “‘does not depend upon the doctrine of respondeat superior’? (per
Rapallo, J., 2% Crispin v. Babbitt, 81 N. Y., at p. 520). The reason of
that rule prevents any such dependence, The master is liable to an
outsider for the act of a servant or the joint act of several, because it is
the master’s act guoad him. He is not liable to otherservants for such an
act, because itis not his act guoad them. How can the things which
they do for him be considered, as between the doers of them, to be
his acts? There is no reason why they should be. Viewed in this
way, there would seem to be no necessity for the phrase so often
used, as a refuge in close cases, that the servant assumes the risks of
such and such a thing. Ifa man is injured through the negligence of
another man, justice demands that he obtain redress from that other
man, and from no one else, unless he can find some one, who occupied
as to the wrongdoer the position of a person, of whom it must be said
that the act of the wrongdoer was his act. The injured man can not
find such a person in his own master, except in a case where the master
has put the wrongdoer into his own place. Where, owing his servant
some special duty, he has sought to perform it through the wrongdoer,
his liability is, not for the negligence of the wrongdoer, but for his own.
He owes to his servant a special duty by virtue of the relation existing
between them. Any plea on his part that he attempted to perform it
through a servant, who neglected to do it, is immaterial. It indeed
proves the charge that he has not performed his duty. Performance of
one’s duty can not be proved by showing a delegation of that duty to
some one else, who has not performed it. Duty can not be perfurmed
negligently. A negligent attempt to perform duty is no performance
at all.

It this reasoning is sound there is nothing left, in stating the law as
to masters, but to state what duties the master is held to owe to his
servants, and also when a servant is to be considered as the alter ego
of the master.
522 CasEs CopIFIED. [Cuap. IT.

 

§ 77. A-servant is, as to a fellow servant, tobe considered
as the alfer ego of the master in the following cases :

(1) When the master is a corporation, and the duties.
which such servant performs are things which, when the
master is an individual, are usually done by himself.

(2) When the master invests the servant with the general
control or superintendence of his business, or of a general
department thereof.

(3) When the master invests the servant specially with
authority to take his place in a particular matter, or to
perform acts, which are in their nature acts requiring
obedience by the other servants to his instructions, as
instructions not emanating merely from such servant as
a superior servant, but from the master himself.

The foregoing section is put forth very hesitatingly. No compre-
hensive statement of the rule of a/ter ego has fallen under the author’s
notice. Itis easier to say in a particular instance that a servant was or
was not acting in the master’s place.

It is often said that a servant is a/ter ego, when he is performing
master’s duties. In the strict sense of the word duty, that does not

include all cases. (See the last case on this subject, Hankins v. N. Y,
Lake Erie & W. R. R. Co., 142 N. Y., 416.) \

§ 78. The rule as to the liability of the master to one ser-
vant for the negligence of another servant, who is acting as his.
alter ego, only extends to the actions of such servant in that
capacity.

§ 79. A master owes to each of his servants the following
duties :

(1) He must promulgate for their guidance and pro-
tection adequate rules for the proper transaction of his
business.

(2) He must see that his rules do not fall into general
disuse. ,

*(3) He must have minors and inexperienced servants
‘instructed as to any dangers in the work they are
employed to do, as to which they are uninformed.

(4) He must employ servants who are competent to do
what they are employed to do.

(5) He must discharge a servant who becomes incom-
petent

(6) He must employ a sufficient number of servants to
do his work properly and safely.
Caus. NEc. ] Cases CopIFIED. 523

 

(7) He must provide as safe a place for his servants to
work in as is compatible with the work he employs them
to do. :

(8) He must, when providing. them with machines,
tools, or other appliances to work with, see that they are
in good order, and as safe for the work in hand as proper
care for his servants’ safety can make them.

§ 80. A master must teach his apprentice the art or mystery
of the trade or craft to which the apprentice has been indentured,
and provide him with suitable board, lodging and medical
attendance.

§ 81. Sailors must be provided with such medical attendance
as the master of the vessel can himself give, or obtain when in
harbor.

§ 82: A master cannot escape responsibility for the non-per-
formance of a duty he owes to his servant, by delegating that
duty to a servant.

§ 83. The rule as tonon-liability for a contractor's negligence
applies in favor of a master, who has contracted with an out-
sider for the furnishing of a machine, tool, or other appliance
for the use of his servants.

It may be that the cases, as a whole, do not go quite so far as here
stated, but certainly, Devlin v. Smith, standing by itself seems to war-
rant the proposition. Query; Is there any reason in principle for a dis-
tinction between delegating a master’s duty to a servant and delegating
it to a contractor?

§ 84. The rule as to the promulgation of adequate rules does
not require the master to provide against every conceivable
accident which may happen to his servants,

§ 85. Therule as to safe places, proper machinery, tools,
and appliances does not apply in favor of those servants whom
the master employs to keep the same in good repair.

§ 86. The rule as to defective machines does not require the
master to discard machines of an antiquated pattern for new
ones with improved safety devices, but it does require the
master, when providing a new machine for his servant's use, to
provide one with such latest improvements for the safety of

those who use it as are in general use.
It cannot be considered as settled whether a master is bound to apply

new safety devices upon old machines.
524 Cases CopIFIED. [Cuap, II.

 

If a machine were antiquated, and very dangerous. and the new
device weresimple, easily applied, and inexpensive, it would probably
be held that a proper regard for the safety of a fellow-man would
require it to be applied.

§ 87. A servant who waives theseperformance by his master
of a duty which the latter owes to him, cannot afterwards hold
the master liable for the consequences of its non-performance.

§ 88. The master is not an insurer as to the due performance
of his duties to his servants.

§ 89. Notice to the master, express or constructive, of a
necessity to promulgate a new rule, or to discharge a servant
who has become incompetent,or to repair his premises, machines,
tools, or appliances, is an element of liability on his part for a
breach of such duties.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS:

 

References to Statutes. Master’s Duties—continued,
Respondeat Superior. As to sulfic. no. of serv.
Scope of Employment. ‘safe place,
Contractors, &c. ‘© defective machines,
Co-servants. ee ee vehicles. *
Liability for. ‘¢ loading ee
Who are. ““ managem.of ‘
Concurring Negligence of. . ‘© tools and appliances.
Transportation of. “safety es
Serv. of Different Masters. Minors.
Master’s Duties. Inexperienced Servants.
As to rules. Delegation of Mast.’s Duty.
“* seeing rules obeyed. Vigilance of Master.
‘« competent serv. Waiver by Servant.

References to Statutes.

(188) As the trades unions have been short-sighted enough to drive out the
apprentice system, there is no one’s convenience to subserve in quoting
verbatim the statutes as to apprentices. (Laws of 1871, Chap. 934. See also
Rev, Stat ¥

(189) Persons engaged in providing amusements must not employ children
under the age of sixteen ‘‘in any practice, exhibition or place dangerous or
injurious to the life, limb, health or morals of the child.” (Zaws of 1876,
chap. 122, Penal Code, § 292.)

If the case were to arise, it would probably be held that flickey v,
Taafe does not prevent this section of the Penal Code from applying
where a master employs, to tenda dangerous machine, a child so young
as to make the mere fact of such employment a highly improper thing
for the master to do.
Caus. Nze. ] Cases CopIFIED. 525

 

(190) As the scaffold act in all probability does not impose any additional
liability upon an employer civifiter, only a reference need be made to it,
(Laws of 1885, chap. 314, am. by Laws of 1891, chap. 214.)

(I9t) As the excise law, forbidding the employment and retention of
intemperate servants in certain capacities, in all probability does not impose,
any additional liability upon an employer cividiter, only a reference need
be made to it. (Laws of 1857, chap. 628, § 31, of 1892, chap. 401.)

(192) There are two acts forbidding railroad companies to exact more than
acertain number of hours of labor from employees operating their roads.
(See Laws of 1886, chap. 151, Laws of 1887, chap. 529 )

(193) See also ‘‘an act to regulate the employment of women and children
in manufacturing establishments, and to provide for the appointment of
inspectors to enforce the same,” which, as afterwards amended, probably
applies in some respect to places where only men are employed. It fixes
hours of labor for minors, age at which they may be employed, (13 years,
16 in certain cases) provides that hoisting shafts and well holes shall be
properly enclosed, elevator ways provided with trap doors at each floor to
be opened and closed by: the elevator in its passage, stairways to be
guarded, factory doors to open outward where practicable, and not to be
fastened during working hours, fire escapes to be provided, automatic
shifters or other mechanical contrivances for the purpose of throwing on or
off belts or pulleys to be furnished ‘‘in the discretion of the inspector,’’ no
girl under 21, or boy under 18 to be allowed to clean machinery in motion,
gearing and belting to be provided with proper safeguards, also proper
separate closets for females. (Laws of 1886, chap. 409, am. by Laws of 1887,
chap. 462.)

(194) There is an interesting ‘‘act for the moral protection of messenger
boys,” which may possibly give some right of action for damages. (Laws
of 1887, chap. 532.)

(195) Seats must be furnished by masters for the use of female employees.
(Laws of 1881, chap, 298.)

Query —Suppose a girl sustains serious injury to her health from the
failure to comply with this act, could she recover damages upon the
theory that this is a statutory construction of the phrase ‘‘safe place to
work in,” so far as females are concerned?

Respondeat Supe. ior.

(196) A corporation 1s not responsible fora willful trespass committed by
its president or other agent by means of its property which is in his charge,
but which it has not authorized to be so used. (Vanderbilt v. Richmond
Turnpike Co., z N. V., 479-)

(197) The commissioners of emigration are not the superiors of persons
licensed by them to transport emigrants’ baggage. (Murphy v. Com. of
Emig., 28 NV. Y., 134-)

(198) A master is not liable for a false arrest of a person instigated by his
servant without his authority express orimplied. (Mali v. Lord, 39 W. Y.,
381. Seealso Art. IZ, sub nom, Arrests.).
526 Cases CoDIFIED. [Cuap. IT.

 

(199) Where a servant, while aiding his master to resist an entry of a per-
son on the master’s land, kills him, the master is not liable under the Death
Act, if the servant deliberately intended to kill him. (Fraser v. Freeman,
43 4. Y., 566.)

(200) A trustee for bond-holders undera railroad mortgage who has bid in
the road on foreclosure, and is operating it for their benefit, is to be
regarded as a common carrier of the goods shipped over it. (Rogers v.
Wheeler, 43 N. Y., 598.)

(201) A charterer of a vessel does not become the superior of her pilot, by'
virtue simply of a chartering by his agent undera special authority to char-
ter her on the best terms he can, which terms include paying the pilot.
(Martin v. Farnsworth, 49 N.V., 555. See also Art.V., Misc. Defts., sub nom.
Charterers, Owners of Vessels, Agents; also Tit. III. of Chap. L11., Imput, Neg.)

(202) The law of the road in the Revised Statutes, making owners of
vehicles for transportation of persons on public highways liable for all
damages occasioned by the willful act of their drivers, does not apply to
owners of street-cars running on tracks. (Whittaker v. Eighth Ave. R. R. Co.
51 WM. Y., 295.)

(203) A corporation whose property and franchises have passed into the
possession of an assignee by virtue of hostile legal proceedings. is not the
superior of the persons engaged in carryingon the business. (Metz v. Buff,
Corry & P. R. R. Co., 58 NV. Y., 61.)

(204) Assignees and receivers of railroad companies-are not personally
responsible for the damages resulting from the negligence of subordinates
operating the road. (Cardotv. Barney, 63 N.Y., 281. See also Art.V., Mise.
Defts., sub nom. Recetvers.)

(205) A corporation is responsible for the damages sustained by a holder of
spurious stock, apparently valid, but obtaining that appearance only through
the fraud of one officer and the negligence of another. (7Z2tus v. President
&c. Great West. Turnpike Road, 61 N. Y., 237.)

(206) The master of a ship is the superior of all persons in the service of
the ship. (Ryallv. Kennedy, 67 N.Y., 379. LErroneously reported as Kennedy
v. Ryall.) : ,

(207) As to passengers, a railroad company is the superior of porters of
parlor cars of other companies. (Thorpe v. N.Y. C. R. R. Co., 76 N. Y., 402.)

(208) One who takes an assignment of the monev to grow due ona contract
for work,@nd then does the various things which a person would dato carry
the contract out, stands in the relation of master to the men doing the
work. (Manning v. Hogan, 78 N. Y., 615.)

(209) If a railroad is leased without legislative authority, the corporation
making the lease is tobe regarded as the superior of those operating the
road. (Abbott v. Foknstown G. & K. Horse R. Co., 80 N. ¥., 27.)

(210) The fact that a person, who operates a railroad as a lessee under a
lease, is a receiver of a connecting railroad, aid entered into the lease as
such receiver under permission of the court, does not relieve him from per-
sonal responsibility as the lessee ofsuch road, (Kainv. Smith, 80 N.Y’, 458.)
Caus. Nec.] Cases CopIFIED. 527

 

(211) A person who lets his lands on shares agreeing to pay the tenant a
specified sum per acre for clearing so much of the landas the tenant should
choose to clear, is not answerable for the damages sustained by a neighbor
from a fire negligently kindled by the tenant in clearing the land. (Ferguson
v. Hubbell, 97 N. Y., 507. See also Marsh v. Hand, 120 N. Y., 315, Art. IV.,
sub nom. Lessors.)

(212) The owner of a boiler bought from its makers under guaranty owes
no duty to the servants of the latter, who are sent to repair it, beyond that
of notifying them of any defects which have come or ought to have come
to hisknowledge. (Olive v. Whitney Marble Co., 103 N. Y., 292.)

(213) Unless there has been such a demise of a vessel as to take from her
owners all control of her, they are liable for the damages sustained by a
seaman in consequence of the neglect of the master to furnish proper
medical care. (Scarfv. Metcalf, 107 N. Y., 211.)

(214) The owner of a vessel] is not liable in damages for wilful assaultupon
a seaman by the master on the high seas. (Gadrielson v. Waydell, 135 N.
Y., 1.)

(215) Janitors of apartment houses are agents of the landlords, not of the
tenants, as to the duty of opening and clusing coal-holes when tenants’ coal
is being delivered, (Hennings v. Van Shaick, 108 N. Y., 530.)

(216) The fact that a person is to be benefitted. by the performance of a
tontiact between two other persons, by reason whereof he interests him-
self to send a person applying for work to one of the parties to the contract,
does not make him responsible for the way in which the work is done.
(Kelly v. Doody, 116 N. Y, 575.)

(217) A vendor of fireworks, who sends with them persons to take charge
of the display under the purchaser’s.instructions, is not answerable for their
negligence in setting them off. (Wylie v. Palmer, 137 N. Y., 248 )

See Titles I, II, II], and the other articles of this Title, especially Art. V,
Misc. Deft’s, also Chap. III, Vand X; also Scope of Employment, ix/ra.
Examples will be found in all these places where persons in special
circumstances have been held answerable or not answerable for the acts
of others.

Scope of Employment.

The subject, scope of employment, is so closely connected with re-
spondeat superior, that most of the cases in the one, fall under the other.
There are, however, some that may be more easily classified under the
one than the other, although the dividing line is that of a shadow.

(218) If it is part of a servant’s duty to have an oversight of his master’s
property during hours belonging to himself, adjusting what may be amiss,
his master is responsible for the servant's negligent use of such property for
his own purposes in his own time. (Chapmanu. NW. Y. Cent, R. R. Co., 33
XN. Y., 369. ,
528 Cases ConiFIED. (Cuap. II.

 

(219) The rule that a servant, who speeds his master’s departing guestby
kicking her off his vehicle, is not acting within the scope of his employment
was soon overruled. (/saacs v. Third Avenue R. R. Co., 47 N. Y., 122)

(220) A street car company is responsible for the act of a conductor in
throwing off from the platform of a car a person, who in crossing the street
passes over the platform because it is obstructing the crossing. (Skheav.
Sixth Ave. R. R. Co., 62 N. Y., 180.)

(221) That an injury is duc toaservant’s disregard of his master’s instruc-
tions as to the manner of doing his work is no ground for relieving the
master from liability for damages resulting from his negligently doing the
work. (Cosgrove v. Ogden, 49 N. Y,, 255.)

(222) Where a carman has general authority to receive and cart goods
consigned to another person, the latter is responsible for his negligence in
caring for them. (Purcell v. Faycox, 59 N. Y., 288.)

(223) Itis within the scope of any servant’s employment to see that his
master’s property is not stolen, even though the master employs a watch-
man specially for that purpose. (Courtney v. Baker, 60 N. Y., 1.)

(224) The fact that the servant joins malice with obedience, does not
excuse the master from responsibility for his manner of carrying out his
master’s orders. (Rounds v. Del. L. & W.R R. Co., 64 NM. Y., 129.)

(225) The fact that a carrier’s servant, having authority to remove tres-
passers from its trains, removes a trespasser in an illegal manner, does not
exonerate the carrier, from liability for the damages occasioned thereby.
(Hoffmanv. N.Y. C.& H.R. R. R. Co., 87 N. Y., 25.)

(226: A master is responsible for a willful injury inflicted by a servant,
when it is done in a heat of passion to further the master’s business. (Cohen
wv. Dry Dock E. B. & B. R. R. Co ,69 N. Y., 170.)

See also Cutting v. Marlor, 78 N. V., 451, Title V, sub xom. Banks.

“© «¢ Ochsenbein v. Shapley, 85 N. Y., 314.

(227) The fact that a person is being carried free without the knowledge
of the master, does not as to third persons operate to make the action of
the servant in transferring such free passenger from a ferrpboat to another
boat during a trip, one which is not within the scope of his employment.
(Quinn v. Power, 87 N. Y., 535.)

See Resp. Super. supra.

Contractors and Their Servants.

(228) Where a person contracts with another to do alawful thing, retaining
no supervision or controlover the manner of carrying out the contract, he
is not liable for the negligence of the contractor in doing such thing. (Blake
uv. Ferris, 5 N. Y., 48.)

(229) Where a person contracting for an act which willobstructa sidewalk,
omits to obtain permission to do so, the fact that an injury resulting from
such obstruction occurred through the act of the contractor does not shield
him from liability therefor. (Congreve v. Smith, 18 N. Y., 79.)
Caus. Nae. ] Cases CoDIFIED. 529

 

(230) Where an excavation in a highway is dug without license from the
proper authorities, the fact that it was dug by a contractor does not shield
the person for whom it was dug from liability for damages resulting from
it. (Creed v. Hartmann, 29 N. Y., 591.)

(231) He who furnishes a structure to a contractor for use on his own
premises, owes a duty to the contractor’s employees who are to use it, to
have it properly constructed. (Coughtry v. Globe Woollen Co., 56 NV. Y., 124.)

(232) The rule that a contractor’s servants are to be considered as the ser-
vants of the other party to the contract only as to illegal acts, which must
be done to carry out the contract, applies to the case of a railroad company
constructing its road by contract. (McCafferty v. Spuyten Duyvel & P. M.
R. R. Co., 61 M. Y., 178.)

(233) A clause in a contract for the erection of a building, providing that
it shall be done to the satisfaction and under the direction of an architect,
does not take from the contractor the control and direction of the work.
(Slater v. Mersereau, 64 N. Y., 138.)

(234) Owners of Iogs, floated down a river under contract, are not respon-
sible for the damages occurring through the contractor’s negligence. (Zow
of Pierrepont v. Loveless, 72 N. Y., 211.)

(235) The fact that an owner of property, on which building operations are
being carried on by contractors, employs an agent to overlook their work and
give them instructions, does not operate to make the owner liable for dam-
ages resulting from the negligence of the contractors in the absence of evi-
dence showing that such injury was the result of the instructions. (AZorton
u. Thurber, 85 .N. Y., 550.)

(236) Where a person contracts to furnish to another an appliance to be
used by the latter’s servant, he owes a duty to the latter to see that it is safe
for such use. (Devlin v. Smith, 89 N. Y., 470. See also King v. N.Y. C. &
H.R, R. R. Co., 66 N. Y., 181.)

(237) A person who employsa contractor to do a work not in its nature a
nuisance, but which becomes so by reason of the manner in which the con-
tractor has performed it, becomes responsible for the nuisance, if he
accepts the work in that condition. (Vogelv. The Mayor, 92 N. Y., 10.)

(238) Mechanics, employed to do repairs in their own way, by their own
servants, and without stipulated price for their work, are to be considered
as contractors for whose negligence in carrying out a lawful contract the
other party is not responsible. (Hexamer v. Webb, 101 N. Y., 377-)

(239) The rule as to the non-liabilty of an owner of premises for a contract-
or’s negligence in performing a contract in regard to them, applies to the
case of the negligent taking down of a wall, which was safe enough as it
stood, and would not necessarily have fallen if taken down propetly: (EZngel
uv, Eureka Club, 137 NV. Y., 100.)

‘

(240) As to admissibility of agreement with contractor. under general
denial, see Chap. VII., Evidence. (Roemer v. Striker, 142 N. ¥., 134.)
530 Cases CopiFIED. [Cuap. II.

 

(241) Contractor not liable for sub-contractor’s negligence in blasting.
(French v. Vix, 143 N. Y., 90.)

See also Tit. Il., Pub. Contr.; also Art. V. of Tit. IV., Misc. Deft., sed
nom, Contractors.

Co-Servants.
(Liability to Servant for Acts of Fellow-servant.)

(242) A master, not at fault himself, is not responsible for an injury to
one servant through the negligence of aco-servant. (Coon v. Syracuse &
Utica R. R. Co.,5 N. Y., 492.)

(243) The master is not liable to oneservant for the damages resulting to
him from another servant’s disregard of prudence in carrying out the
master’s regulations. (Wrightv. NV. Y. Central R. R. Co., 25 N. Y., 562.)

(244) The master is liable for negligence of a train-starter in sending
out a train with an insufficient crew. (Fike v. Bost. & Alb. R. R. Co., 53
N.Y., 549. But see next two subdivisions.)

(245) A railroad company is not answerable to its servants for the dam-
ages resulting to them from the negligent starting of its trains from its
depot only a few minutes apart, in the absence of proof that it has failed
to adopt proper rules on the subject. (Mose v. Boston & Alb. R. R. Co.,
58 MW. Y., 217.)

(246) Negligence in sending out a train to follow too quickly after
another train cannot be predicated from the mere fact of collision, and in
the absence of evidence as to how much time elapsed between their de-
partures. (Booth v. Bost. & Alb. R. R. Co., 67 N. ¥., 593+)

(247) The negligence, if any, in failing to station a brakeman at the rear
of that portion of a train which is being removed from another portion
left standing for repair, is that of a co-servant. (Besel vu. MV. C. & i.
RR. RB. Co., 70 N. Y., 171.)

(248) The negligence of a brakeman in failing to be at his post upon freight
cars when being shunted is not the negligence of the company. (otter v.
N.YV.C.& H.R. R. R. Co. 136 NM. Y., 77.)

(249) When the master has employed enough men for his work and put
them under a superintendent’s orders, he is not bound to see that the super-
intendent@etails a sufficient number of them for particular parts of the work.
(Hussey v. Coger, 112 NV. Y., 614.)

(250) The fact that a vicious animal has been enabled to inflict an injury
on aservant through the negligence of a co-servant, is no defence to the
master. (Muller v. McKesson, 73 N. Y., 195.)

(251) Where by reason of the master’s defective appliance, a servant is
unable to extricate himself from a perilous place, and sustains an injury,
the fact that he was placed in peril through the negligence of a co-servant
does not operate to excuse the tnaster. ee vu NY.C.& H.R. RR. Co.,
107 WV. Y., 566.)
Caus. Nec. ] Casgs CoprFIep. 531

 

(252) Where an injury happens to a servant through the carelessness of a
co-servant in managing an elevator, the fact that it has no safety clutches
which, if on it, would have arrested its fall and prevented the injury, does
not operate to make the master liable. (Stringham v. Hilton, 111 N. Y., 188.)

(253) The master is not liable for damages sustained by one servant
from the negligence of a co-servant in constructing a scaffold for their use
in prosecuting the work. (Fudsonv. Vill. of Olean, 116 N. ¥., 655.)

(254) When trains are being run under telegraphic orders emanating from
the master’s headquarters, it is part of the master’s duty to see that the
orders thus given will properly protect the servants who obey them.
(Hankins v. N. Y., Lake Erie & W. R. R. Co., 142 N. Y., 416. See Slater
case, infra.)

(Who are Co-servants, and Who Alter Ego of Master.)

(255) Servants of unequal grade, engaged in a common undertaking for

master, are fellow-servants. (Sherman wv. Roch & Syr.R.R.Co., 17 N. ¥.,153.)

(256) The fact that the injured servant is under the orders of the one by
whose negligence he is injured does not take the case out of the rule as to
the master’s non-liability to one servant for the negligence of a co-servant.
(Shermanv. Roch. & Syr. R. R. Co., 17 N. ¥,, 153-)

(257) A servant engaged in constructing a new track, and one engaged in
Tunning a train on it, are co-servants within the rule as to non liability of
master to one servant for damages occasioned through the negligence of
another. (Boldt 7 MN. Y. Cent. R. R. Co., 18 NX. Y., 432-)

(258) A person who boards another’s horses under a contract with their
owner is not a fellow-servant of another who is employed by the owner to
take care of them. (Stone v. Western Transp. Co., 38 V. ¥.. 240.)

(259) The fact that a person taking care of horses for their owner is boarded
under contract with their owner by a person who, under the same contract,
boards the horses, does not make him the servant of the latter person.
(Stone v. Western Transp. Co., 38 N. Y., 240.)

(260) The general business manager of an employer, to whom is confided
the care of the business in the employer’s absence, is to be regarded as a
fellow-servant with other employees as to those acts of service which do not
come within the scope of his duties as general manager. (Crispin «. Babbitt,
81 A. ¥., 516.)

(261) A yard-master of a railroad and an employee engaged under his
directions in moving a broken car to the repair shop, are fellow-servants.
(McCosker v. Long Island R. R. Co., 84 .N. ¥., 77.)

(262) A foreman is aco-servant. (Newbauer v. \.¥., Lake Erie & W.
RR. Co., 101 NM. ¥. 607.)

(263) Where the master has employed a sufficient number of servants for
an undertaking, and placed them under a superintendent’s orders, the neg-
ligence of the latter in detailing an insufticient number of men to doa par-
ticular thing in the general undertaking is the negligence of a co-servant
and not that of the master. (Hussey v. Coger, 112 NW. ¥., 614.)
- 532 CasEs CopIFIED. [Cuap. IE,

 

(264) A person in charge of a drum on a dock, the use of which with such
person to manage it is let by the dock owner toa stevedore for the load-
ing of a vessel at the dock under contract with her master, is not a fellow-
servant of the servants of the stevedore. (Sanford v. Stand. Oil Co., 118

NV. ¥, 571.) »

(265) The negligence of a foreman of a quarry in superintending the
operations of blasting in it, whereby a servant is injured, is the negligence
of a fellow-servant, not of the master,

Or,

An owner of a quarry, having furnished a safe place to work in and
proper appliances for blasting and a competent foreman, owes no duty to
his servants to see that his foreman carefully superintends the operations
of blasting. (Cud/en v, Norton, 126 N. Y., 1.)

(266) A train despatcher, in giving telegraphic orders for the movement of
trains, is the alter ego of the master, and his negligence in giving such
orders is that of the master. (Hankins v. N. Y., Lake Erie W.R.R.,
Co., 142 V. Y., 416.)

(Concurring negligence of co-servant.)

(267) The fact that negligence of a co-servant co-operated with that of the
master in causing an injury to a servant, does not excuse the master. (Cone
v. Del., Lack. & W. R. R.Co., 81 N. Y., 206.)

(268) A master’s own negligence is not excused by the concurring negli-
gence ofaco-servant. (Z/lis v. N. Y. Lake Evie & W. R. R. Co., 95 NV. Y.,
546.)

See also Galvin v. The Mayor, 112 N. Y., 223.

(269) Rule in Cone case, 81 N. Y., 206, and Ellis, 95 N. Y., 546, as to
concurring negligence of co-servant applied. (Coppins v. N. Y. C. & Aud-
son R. R. R. Co., 122 N. Y, 557.)

(Transportation of.)

(270) Where a servant, who is carried by his master to and from his werk
without charge, is by the terms of the agreement to render service in the
management of the conveyance, he is a co-servant with all the others so
engaged, (Russell v. H. R. R. R. Co. 17 M. Y. 134.)

(271) Where the contract between master and servant includes the free
transpomtation by the master of the servant to and from his work, the
master is not answerable to such servant for damages resulting from the
negligence of other servants in so transporting him. (Vick vu. N.Y. C. &
HR. R. R, Co., 95 N. Y., 267.)

Servants of Different Masters.

(272) Where a person is injured by the negligent act of defendant's ser-
vant, itis immaterial that the latter was acting pursuant to a contract by
defendant with the master of the injured person. (Smith v. N.Y. & Harlem
RR. Co., 19 NM. ¥., 127.)
Caus. Nec. ] Cases CopIriEp. 533

 

(273) Persons working on the same job, but under pay and orders of
different masters are not fellow-servants. (Suenson v. Atlantic M.S. S.
Co.,57 NV. Y., 108.) '

(274) Where work upon one man’s property is being done under contract
by another man, and the owner of the property lends one of his servants
to assist the other under such other’s directions, the owner is not responsi-
ble to the latter for the negligence of such servant while so engaged,
(Olive v. Whitney Marble Co., 103 N. Y., 292.)

(275) When a railroad company lets to another company the usé, conjoint-
ly with itself, of its yard with attendance by its servants, such servants and
the servants of the tenant company are not fellow-servants. (Sud/ivan v.
Tioga R. R. Co., 112 N. Y., 643.)

(276) A person managing a guy-rope of a vessel discharging cargo at a
port, where it is the custom for the guy-rope to be managed by the captain,
and who-was directed to do so by the captain, is not a fellow-servant of an
employee of the stevedore who unloads the cargo under contract with its
purchaser. (Kilrov v. Del. & Hud. C. Co,, 121 N. Y., 22.)

‘(277) A master who hires to another a machine anda servant to tend it
under orders from the servant of the other, isrésponsible for the damages
resulting to such other servant from the negligence of the machine tender in
failing to obey the directions given by such servant. (Sanford v. Standard
Oi Co, 138M. V., 571. Foknsonv. Neth, Am, St. Nav. Co., 132 V.Y., 576.)

Master’s Duties.
(As to Rules.)

(278) A railroad company is under no obligation to a car repairer, repair-
ing cars of a train on its repair track according to custom, to take measures

to protect him from accident by the descent against him of other cars.
(Beselv. NM. VY. C. & H.R. Rk. R. Co., 70 N. ¥., 171.)

(279) A master must see that the rules he adopts for the conduct of his
business are adequate for its safe conduct. (Sheehanv. NV. VY. C.& H.R,
RR. Co., 91 N. Y., 332.)

(280) It is the duty of the master to adoptand promulgate proper rules for
the protection of his servants while engaged in their work. (Adel v. Del, &
Hud. C. Co., 103 NM. Y., 581.)

(281) The fact that servants agree among themselves upon certain rules
for their own protection in prosecuting their work, does not absolve the
master from his duty to adopt and promulgate proper rules. (/d.)

(282) A railroad company must provide by rule against cars being
shunted down a track against a car which is being repaired. (Murphy v.
N.Y. Cent. & H.R. R. R. Co., 118 N. Y., 527.)

(283) It is not sufficient for a railroad company to promulgate a general
Tule as to all freight that its employees must see that it is safely loaded, but
if a special kind of freight needs certain things to be done in order to make
itsafe for transit, a special rule must be made requiring those things to be
done. (ford v. Lake Shore & Mich. S. R. Co., 124 N. Y., 493.)
534 CasEs CopIFIED. (Cap. IT.

 

(284) The fact that rules do not contain a specific prohibition against
doing a certain thing, does not make them amenable to the criticism of
being insufficient, ifsuch prohibition can be fairly gathered from them,
(Corcoran v. Del., Lack. & West. Rk. R, Co., 126 N. Y., 673.)

(285) In providing for the safety of a car-repairer while at work on cars on
a track, a railroad company should make a properrule governing the taking
down of the danger signal as well as the putting it up. (Adel v. Del. &
Hud. C. Co., 128 N. Y., 662.)

(286) A railroad company is under no duty to promulgate a rule that
danger signals shall be given when a car is being coupled. (Berrigan v.,
N. Y«., Lake Erie & W.R. R. Co., 131 NM. Y., 582.)

(287) Where an injury to an employee is due to his failure to obey a rule
published in a book by the master for the use of his employees, the fact
that the master has not furnished the book to that particular employee is
immaterial, if he knew of its existence, had access to it, and knew it con-
tained the rules for his guidance. (Lacroy v. N. Y., Lake Erie & WR. R.
Co., 132 MV. Y., 570.)

(288) A master is not bound to provide by rules against the danger of his
workman being run over, while working with unnecessary zeal under a car
to clear the track for the car’s passage. (Morgan v. Hud. Riv. Ore & J. Co.,
133 4. Y., 666.)

(289) An injured servant can not claim that his injury was due to his
master’s negligent omission to promulgate proper rules, if he does not
suggest the rule which would have prevented the accident, (/.)

See also Potter v. N.Y. C.& H.R. R. R. Co., 136 M. Y., 77.

‘

(As to Seeing Rules Obeyed.)

(290) A railroad company owes a duty to its servants to see that its rule,
as to sending outits train with a certain number of men for a_ crew is
obeyed. (Booth v. Bost. & Alb. R. R. Co., 73 N. Y., 38.)

(291) After a train has started a railroad company is under no duty to its
train hands to see that,its rules as to the management of its trains are
obeyed. (Slater v. Fewett, 85 N. Y., 61.)

(292) When a master promulgates a sufficient rule for the purpose of
oe his servants against an unsafe place in his premises, he is not
responsible to a servant for the damages sustained by him through the
violation of that rule by another servant.

Or,

A servant assumes the risk of his co-servants obeying the master’s duly

promulgated rules. (Avthony v, Leeret, 105 M. Y., 591.)

(293) A railroad company which has provided by adequate rules for the
performance of its duty to see that its cars are properly loaded for transit,
is notanswerable to one servant for the consequences of another servant’s
failure to obey the rule. (Byrnesv. NV. Y., Lake Erie & W. R. R. Co,, 113
XN. Y., 251.)
Caus. Nxe. ] Cases CoDIFIED. 535

 

(294) A master must not allow the rules which he has adopted to fall into
disuse. (Whittaker v. Del. & Hud. C. Co., 126 N. Y., 544.)

(295) The failure of a brakeman to be upon freight cars which are being
shunted is not, in the absence of proof that the master had not promulgated
a proper rule on the subject, the negligence of the master. (Potter v. N.

Y.C.& H.R. RR. Co., 136 NM. Y., 77.)

(296) A master must see that his rules for inspecting his machinery so as
to keep it safe for servant’s use are carried out. (Badley v. Rome, Water, &
Og. R. R. Co., 139 NV. Y., 302.)

(As to Competent Servants.)

(297) A superintendent, who details one servant to take another’s place to
meet an emergency occasioned by sickness, is not doing master’s duty
within the rule requiring masters toemploy competent servants. (Wright
wv. N.Y. cent. R. R. Co., 25 WN. Y., 562.)

(298) A master owes a duty to his servant to discharge another servant,
who has to his knowledge become incompetent. (Laning v. MV. Y. Cent.
R. PR. Co., 49 N. Y., 521. Brickner v. N.Y. Cent. R. R. Co., 49 N. Y., 672.
See Tenney v. Bost. & Alb. R. R. Co., 52 N. Y., 632.)

(299) A master has the right to rely on a presumption of continuance, as
to the good character and proper qualifications once existing in his servant,
until he has notice of a change, or of facts which should put him on
inquiry. (Chapman v. Evie Railway Co., 55 N. Y., 579.)

(300) Negligence in retention of a negligent servant cannot be predicated
ofa master, who investigates a charge of alleged negligence on such ser-
vant’s part, and, on its appearing doubtful whether such servant, who had
been in his employ for years, or another, had’ been guilty, retains the
former. (Baulecv. NV. VY. & A, R. R. Co., 59 NM. V., 356.)

(jot) The fact that the master has negligently employed an inexperienced
servant or overworks him, isimmaterial, if the injury to a fellow-servant
results not from such servant’s inexperience or overwork, but only from
forgetfulness. (Harvey v. NV. Y. C. & H. R. R. R. Co., 88 NV. Y., 481.)

(302) Negligence of a co-servant in ordering another servant to do work
for which he was employed, but which he is not fit to do, does not relieve
the master from responsibility for negligence in employing such incom-
petent servant. (Mann v. Del. & Hud. C. Co,,91 N. Y.5 495.)

(303) Aservant who habitually neglects his duty is an incompetent servant
within the meaning of the rule requiring masters to employ competent
servants. (Coppinsv. N. Y.C.& H.R. R. R, Co., 122 N. Y., 557-)

(As to Sufficient Number of Servants.)

(304) A railroad company owes a duty to its servants to have its trains
sufficiently manned when started. (Fike v. Bost. & Alb. R. R. Co. 53 N.

Y., 549.)
536 Cases CopIriEp. [Cuap. IT.

 

‘ (305) A railroad company having employed a sufficient number of train-
men to handle its trains, is under no obligation to see that they are
attending to their duty. (Beselv. N.Y. C.& H.R. R. R. Co., 70 N. Y., 171.)

(306) The omission tosend out a conductor with a dirt train is immaterial,
where it does not appear that his presence would have prevented the
injury. (Henry v. Stat. fs. R. R. Co., 81 M. V., 373-)

(307) A master is under no duty to employ a servant to take care that
other servants while riding on freight elevators are not injured. (Riordan v.
Ocean S. S. Co. of S., 124 WV. Y., 655.)

(As to Safe Place to Work.)

(308) The master owes a duty to his servants to keep his premises in a safe
condition for their use. (Ryan v. Fowler, 24 NV. Y., 410.)

(309) A master, who has erected a structure properly, employed skillful '
agents to supervise it from time tu time, applying such tests as custom and
experience have prescribed, and has no notice of any defects therein, is
not responsible to his servant for injuries received from its fall on account
of gradual decay. (Warner v. Erie Railway Co., 39 NV. Y., 468.)

(310) A railroad company, when it buys a bridge already in use, con-
structed on an unsafe plan, must see that it is made safe for its servants to
pass over. (Vosburgh v. Lake Shore & M.S. R. R. Co., 94 NV. ¥., 374.)

(311) Arailroad company owes a duty to its brakemen to see that the
places where they shall be ordered by its conductors to couple cars shall be
safe. (Plankv. N. Y.C.& H.R. R. R. Co., 60 N. ¥., 607.)

(312) A master owes no duty to his servant to make alterations in his
property to secure greater safety from apparent danger. (Gibson v. Erie
Railway Co., 63 NV. V., 449; De Forest v. Fewett, 88 N. Y., 264.)

(313) Track repairers on railroads do not come within the protection of
the rule that the master owes a duty to his servants to keep the place where
they work safe. (Brick v. Roch., N. Y. & Penn, R. R. Co., 98 N. ¥., 21.)

(314) Mine owners must protect their workmen from the consequences of
rifts opening in the rocks of their mine. (Pantzar v. Tilly Foster I. M. Co.,
99 V. Y., 368, and see Leonard v. Collins, 79 N. Y., 90.)

(315) Agrailroad company must keep the space between its tracks in its
yards safe for its car-couplers to work in, while coupling cars. (Harr v. N.
VC& ARR. RCo. 14 NM. Y., 623.) .

(316) A railroad company must notify its brakemen on freight trains of the
existence of an arch in its tunnel, which reduces the height inside below the
height at the ends. (Hunter v. NV. V., 0. & W. R. R. Co., 116 N. Y., 615.)

(317) A railroad company owes a duty to its train servants to keep the
fences along its track in such repair that collisions between its train and
animals straying from adjoining property.may not happen. (Donneganv.
Erhardt, 119 N. Y., 468.) oy
Caus. Nzc. } Cases CopIFIED. 537

 

(318) When the place where the servant is at work, being usually safe, is
temporarily rendered unsafe by a fellow-servant’s failure to obey the
master’s instructions, the rule as to unsafe places does notapply. (Fi/bert
uv. Del. & Hud. C. Co,, 121 N. Y., 207.)

(319) Where a master puts his servant to work inatrench, he mustsee that
the servant is protected from caving in of its sides. (Avanz v. Long Island
RR. Co., 123 N.Y. 1. Stuber v. McEntee, 142 NV. Y., 200.)

(320) Scaffolds are not places, but appliances. (Butler v. Townsend, 126
NV. Y., 105, txfra, sub. nom. Appliances. Query.—Are elevators places or
machines ?)

(321) A railroad company owes no duty to its employees to ballast its
tracks so as to make them Safe for brakemen to walk on while coupling
ears. (Finnellv. Del. Lack. & W. Rk. R. Co., 129 MV. Y., 669.)

(322) A railroad company owes no duty to shovelers in its ashpits between
tracks, not to put a watering place so near the ashpit that locomotives in
watering will stand over the pit. (Retchellv. N.Y. C.& H.R. R. R. Ca,
130 WV. Y., 682.)

(323) A master is under no duty to hisservants employed in his factory to
provide for escape from it in case of fire, in any other way than by stair-
ways, unless such duty is enjoined by statute. (Fauley v. Steam Guage and
Lantern Co., 131 N. ¥., 90.)

(324) Where a statute enjoins upon a factory owner the duty of providing
other specified means of escape from fire than stairways, and provides for
the appointment of inspectors to enforce its requirements, the factory
owner is under no duty to his employees to provide all the means of escape
directed by the statute, if, with the approval of the inspector, he erects an
equivalent. (/2.)

(325) A telegraph company owes no duty to its linemen to see that the
‘cross-arms on its poles are strong enough to bear their weight. (Flood v.
Western Un. Tel, Co., 131 NM. Y., 603.)

(326) In building a structure, the master owes a duty to his workmen to
adopt such a method of securing it as to preventits falling apart. (Davidson
wv. Cornell, 132 NV. Y., 228.)

(As to Defective Machines.)

(327) A master owes to hisservant a duty to repair his machine after notice
that it has become defective and dangerous. (Keegan vu. Western Rk. R. Co.,
8M. Y., 175.)

(328) If the master allows his employees to ride on a freight elevator, he
is bound to see thatitis safe. (Corcoran v. Holbrook, 59 NM. Y., 517.)

(329) A railroad company must furnish locomotives fit and proper for use
by employees. (Kirkpatrick uv. N. Y.C. & H.R. R. R. Co., 79 N. Y., 240.)

(330) The negligence of servants who repair the master’s machinery, is,as
to other classes of servants, the master’s negligence. (Fuller vu. Fewett, as
Ree’r, &¢., 80 NV. Y., 46.)
538 CasEs CopiFigp. (Cuap. II.

 

(331) The rule of masters’ liability for an injury to a servant from a
defective machine, does not apply to servants, who while repairing a
machine are injured by each other’s negligence. (Murphy v. Boston & Alb.
R. R. Co., 88 N. Y., 146.)

(332) A master owes no duty to his servants to discard old-fashioned
machines for new ones, or to put new safety appliances on the old ones,
where they are not of defective construction and theiruse, with care, is not
absolutely dangerous, (Sweeney v. Berlin & Fones Env. Co., 101 NV. Y., 520.)

(333) A railroad company owes no duty to its employees to furnish loco-
motives which are adequate to draw its cars. (Bajus uv. Syr., Bing. & N. Y,
R. R. Co., 103 N. Y., 312.)

(334) Whenan appliance or machine not obviously dangerous has been in
daily use for a long time, and has uniformly proved adequate, safe and
convenient, its use may be continued without the imputation of imprudence:
or carelessness. (Stringham v. Hilton, 111 NV. Y., 188.)

(335) Improper construction cannot be predicated of a new kind ofa
machine merely because it does not always work as it was designed to do.
(DeVau v. Penn. & N.Y. Canal & R. R. Co., 130 NM. Y., 632.)

(As to Defective Vehicles.)

(336) A railroad company is not bound to use the best kind of brakes on
its dirt trains. (Henry v. Stat. Isl. R. R. 7o., 81 N.Y. 373-)

(337) A railroad company owes a duty to its servants to see that the eye-
bolts on its brake-rods are large enough to stand the strain of applying the
brakes. (Paintonv. North, Cent. R. Co., 83 N. Y., 7.)

(338) A railroad company owes a duty toitsservants to see that the buffers
on the cars composing the trains are so placed that they will serve their
purpose. (Zllisv. N. Y., Lake Erie & W.R.R. Co. 95 N. Y., 546.)

(339) Where a railroad company receives from another road for transport-
ation on its own road a car so constructed as to be unsafe for its servants
to handle, and this unsafe condition is discoverable by ordinary inspection
and easily remedied, it owes a duty to its servants to put the car in safe
condition before transporting it. (Gottlebv. N. Y., Lake Erie & W.R. R.
Co., 100 MV. Y, 462.)

(340) It is the duty of a railroad company, on receiving a strange car for
transit oits road, to see that it is in a fit state for safe coupling to its own
train. (Goodrichy. N.Y. C.& AR. R. R. Co., 116 N. Y., 398.)

(As to Loading Vehicles.)

(341) A railroad company which has allowed its car to be loaded by the
shipper, owes a duty to its servants to see that the shipper has loaded it
properly for transportation. (Bushbyv. N. Y., Lake Erie & W.R. R. Co.,
107 WV. Y., 374.)

(342) A master owes no duty to his servants to see that his vehicles are
properly loaded, other than to promulgate proper rules in that respect.
(Ford uv. Lake Shore & M.S. RB. Co., 117 N. ¥., 638.)
Caus. Nze. | Cases CopIFIED. 539

 

(As to Management of Vehicles.)

(343) It is negligent to shunt cars down a track against a car which it is
known is being repaired. (Murphy v. N.Y.C.& H.R.R.R.Co., 118 M. Y.,527.)

(As to Tools and Appliances.)

(344) A slight defect in an appliance, easily remedied by care on the part
of the person who uses it, is not such a defect as to make the master liable
for an injury occurring to one servant through the omission of another to
use such care. (Sammonv. N.Y. & Harl. R. R. Co., 62 NM. Y. 251.)

(345) A master‘is under no duty to furnish his servants with appliances
which will not break in the using, where injury from such breaking is not
expectable. (DeGraafv, NV. Y. C.& H. R. R. Rj Co., 76 N. Y., 125.)

(346) A master owes a duty to his servant to see that one part of an appli-
ance is strong enough to stand the strain when another part is put in
operation. (Painton v. North. Cent. R. Co., 83 N. Y., 7.)

(347) Where an appliance furnished by the master for the servant’s use is
a simple one any defects in which are fully understood by the servant, the
servant in using it takes the risk of such defects. (Marsh v. Chickering, 101
N. Y., 396.).

See also Lilly v. N.Y. C. & H.R. RR. Co., 107 NV. Y., 566, supra, sub. nom.
Co-servants.

(348) A master who furnishes tools to take the place of other tools which
become dangerous through use, is not bound to see that the old tool, when
it becomes worn out, isreplaced by another. (Webber v. Piper, 109 NV. Y.,496.)

(349) A saw is not a defective tool merely because itis dull. (/¢.)

(350) A master who furnishes his servants with spare circular saws to take
the place of other saws when they become dull, is not bound to see that the
old saws are replaced by the new ones. (/@.)

(351) The rule that the master is bound to provide safe appliances for his
servants’ use, does not extend to the case of an appliance constructed by
themselves to facilitate their work. (Hudson v.Vill, of Olean, 116 NV. Y., 655.)

(352) A sudden development of insecurity in an appliance furnished by a
master for his servant’s use will not excuse the master, if the failure to
ascertain the deféct beforehand was attributable to want of proper
inspection. (AMfurray v. Usher, 117 NM. V., 542.)

(353) To those servants who are employed to handle defective appliances
for purposes of repairs, the master owes no duty to see that precautions,
usually adopted to make them less dangerous in handling, are in each case
observed, (Arnold v. Del. & Hud. C. Co., 125 MV. Y., 15.)

(354) Where servants for their own convenience build a structure for
doing their work, it is not the master’s duty to see that it is properly built.
(Hogan v, Smith, 125 NM. Y., 774.)

(355) A scaffold is not a place but an appliance. (Butler v. Townsend, 126
N. ¥., 105.)
'540 Caszs CopIFIED, [Cuar. IT,

 

(356) The fact that a master, whose servants are to use a scaffold built
under contract, directs his foreman to see that it is safe, does not render
him liabie for damages resulting from its being unsafe. (/#.)

And see Devlin v. Smith infra, Delegation of Duties.

(357) Where the appliances furnished by the master are of simple character,
quickly wearing out, and the master keeps on hand an ample supply of
them for the servant’s use upon call, he is not bound to keep daily
watch to see that when such an appliance becomes worn out, it shall at
once be replaced by another. (Cregan v. Marston, 126 NV. Y., 568.)

(358) The rule in Hegeman v. Western R. R. Co., 13 NM. Y., 1, does not
apply to appliances furnished by a master for his servant's use.
Or,

A master is not an insurer to his servant of the quality of the material
used in the manufacture of an appliance for the servant’s use.
Or,

Where an appliance furnished by the master to the servant is made from
material bought by the master from a reputable dealer as the best in the
market, the master is not responsible for a break in it due to a defect in the
material not discoverable by inspection or by any test which will not destroy
its usefulness for the purpose for which it was bought, (Carlson v. Phenix
Bridge Co., 132 N. Y., 273.)

(359) Negligence can not be predicated as to a master for supplying his
servant with a defective appliance, merely upon proof that there are in the
market several kinds thereof, as to the respective merits of which experts
differ. (Harley v. Buff. Car Mfg. Co., 142 N. Y., 31.)

(ds to Safely Appliances.)

(360) The rule requiring the master to adopt a safety device in general use
does not require him to do so, in a case where by reason of special circum-
stances the device will not insure safety. (Piper v. MV. V. C.& A. R. R. R,
Co., 56 NV. Y., 630.)

(361) The removal bya master of an additional safeguard froma dangerous
machine, placed on it by him as an experiment and found not to work well,
is not negligence. (Hickey v. Taafe, 105 V. ¥., 26.)

(362) A master is not bound to put safety clutches on his freight elevators.
(Stringham. Hilton, 111 N. Y., 188.)

(363) When a master, on providing an elevator for his servant’s use,
furnishes one which, with its equipments, is of the most approved kindand
pattern for the purpose to which itis applied, and has it carefully looked
after and inspected, he has done all that the law exacts. (Hart v. Naumburg,
123 WV. Y., 641.)

(364) A master is not bound to put safety appliancesona freight elevator,
where his servants are excluded from it, and from the elevator shaft. (Kern
v. DeCastro & D. Sug. Ref. Co., 125 N. Y., 50.)
Cavs. Nre. |] Casrs CoDIFIED. 541

 

Minors.
(See Finnerty v. Prentice, 75 N. Y., 615.)

(365) The Children’s Protective Act (Laws of 1876, chap. 122) only applies
to employments either vicious in themselves or those which partake of the
character of amusement, and has no application to productive industries,
or useful or necessary business or occupation. (Hickey v. Taaffe, 99 NV. V.,
204. Hayes v, Bush & Denslow Manf. Co., 102 N. Y., 648.)

(366) The master’s negligent failure to warn an employee of immature

. years of the dangerous character of a machine, which such employee is to

tend, becomes immaterial when the employee is otherwise informed of and

understands the danger. (Mickey v. Taaffe, 105 NM. Y., 26. Whitev, Witte-
mann Lith, Co., 13% N. Y., 631.)

(367) It is not negligent for a master to put a boy at work at a machine
having cogs. (Buckley v. Gutta Percha & R. Mfg. Co., 113 NV. Y., 540.)

°368) The fact that there is.no guard on a dangerous machine as required
by the act to protect minors, imposes no liability on the employer, in a case
where the minor, knowing of its absence, and of the danger, voluntarily
meddles with it. (White v. Wittemann Lith. Co., 131 NM. Y., 631.)

(369) A boy of sixteen, working with a buzz saw and fully apprised of its
dangers, can not saddle upon his employer the damages resulting from its
cutting off his fingers, merely because the latter did not warn him of the
danger. (Ogdey v. Miles, 139 NV. Y., 458-)

(370) The rule that the master is answerable for his omission to give a
minor instructions how to work at a dangerous machine, and as to the dan-
ger to be apprehended from it, does not apply to a case where the minor is
told by a foreman to do something else at a machine which he was not
employed to do, and the risk of doing which was obvious to him. (Crown
wv. Orr, 140 NV. Y., 450.) :

Inexperienced Servants.

(371) The master’s own knowledge of the duties an inexperienced servant
is set to do, is not the measure of the amount of instruction in regard to
them, which the master is bound to see that such servant receives, but he
is bound to provide a competent instructor and to see that such instructor
properly instructs. (Brennan v. Gordon, 118 NW. Y., 489.)

(372) When a master employs a day laborer to tend a machine at a par-
ticular place in a particular manner, which is perfectly safe to do, he is
not bound to warn him againstthe danger of repairing it while in
motion, when it gets out of order at a different place. (McCue v. Nat.
Starch Mfg. Co., 142 N. Y., 106.)

See also Chap. III, Cont. Neg., sud nom, Servants.
542 CasEs CODIFIED. (Cuap, II.

 

Delegation of Master’s Duties.

(373) A master who delegates to a servant the performance of duties which
the master owes to his servants does not thereby escape responsibility for
the way in which those duties are performed. (Corcoran v. Holbrook, 59
N. Y., 517.) *

(374) Where a master employs a competent person to keep his premises in
a safe condition, he is not liable to a servant for the damages resulting from
the negligence of such person in performing that duty. (Malone v. Hatha-
way, 64 NV. Y., 5.)

(375) A railroad company owes to its employees, not only the duty to
inspect its tracks, but to inspect them properly.

Or,

‘The judgment of a track inspector that the track is safe, is not res adjudi-

cata against anemployee. (Durkin uv. Sharp, 88 N. Y., 225.)

(376) A master, by delegating to a competent contractor the duty of
providing a safe appliance for the use of his servants, escapes responsibility
to his servants for the insecurity of the appliance. (Devlin v. Smith, 89 N.

¥., 470.)

(377) Rule in Devlin v. Smith, 89 N. Y., 470, as to non-liability of master
for defective scaffold built under contract, applied. (Butler v. Zownsend,
126 WV. Y., 105.)

(378) When a master delegates to a servant the duty of inspection and
repair of the appliarfces for the use of co-servants or places where they
work, he does not thereby escape the responsibility incumbent on him of
seeing that they are kept safe for servant’s use. (Murray v. Usher, 117 N.

Y., 542.)

Vigilance.
(379) A masteris not bound to do everything he can to prevent an accident
(Leonard v. Collins, 70 N. ¥., 90.)

Waiver by Servant.

(380) Where a servant, having knowledge of a danger, declines a master’s
proffer to guard him against it, the master is. freed from responsibility
aboutit. (Shaw v, Sheldon, 103 N. Y., 667.)

Cross REFERENCES.

For other illustrations see the cases cited under the other
articles of this title, and the other titles of this chapter, in many
of which the acts giving rise to the controversy were acts of
servants of the various defendants. They are not ricntianed
under this article, as they did not turn upon questivas +f .naster
and servant.
Caus. Nzc. ] Cases Copirizp. 543

 

(Chap. II, Tit. 1V—Continued.)

ARTICLE II.—COMMON CARRIERS,

A.—Of Passengers.

§ 90. A common carrier of passengers owes to his passengers
the following duties.

(1) To keep his premises, where they take and leave his
conveyances, in fit condition for them to do so safely.

(2) To keep his conveyances in which they travel roadworthy.

(3) To keep the roadbed, along which they travel and the
premises at its side, so far as the same are under his control,
safe for travel. ;

(4) To use reasonable diligence in ridding his premises and
conveyances of ice and snow, if their presence imperils his
passengers’ safety.

(5) To adopt the latest appliances for the safety of his
passengers, which are well known and in general use in his line
of business. :

(6) To give his passengers reasonable opportunity to safely
get on and off from his conveyances while at a full stop.

(7) To give them seats in his conveyances.

(8) To protect his passengers from any expectable un-
provoked assault from co-passengers or third persons.

(9) Toinsure his passengers against unprovoked assaults
by his servants.

QueERy.— How would it be in the case of an assault by a servant who
suddenly becomes insane?

(10) To carry his passengers to their destination with reason-
able diligence and in safety.

§ 91. In the management of his conveyance the degree of
care which the carrier must use varies according to the dangers
to which the passenger may be exposed, and his own power
of control over the forces which he adopts to propel his
conveyance.

- §92. Acarrier may limit by contract, express or implied,
but not by mere notice, his liability to a free passenger for the
negligence of his servants.
544 Casrs CopIFIED, [Cuap. IT.

§ 93. Whether the carrier may limit his liability to a free
passenger for his own negligence, is an open question in this
state.

Nor is it decided whether the carrier may limit his liability toa paying
passenger for his servant’s acts. The word limit does not mean ex-
tinguish, it isa word of limited scope. The public policy of fifty years
ago, when it was first decided in a general way that he might limit by
contract his liability, was the public policy at a time when the carrier was
a person of limited power, and the travelling public limited in its desire
to travel. Railroads were competing with horses. Thespeed of travel was
solimited, that it was supposed to be dangerous to go fast. It was negli-
gent to run fast if a cow were grazing near the track. (Brown v. N.Y.
Cent. R. R. Co, infra.) Now our ‘‘limited trains ‘tare run at unlimited
speed. The public must travel. It is obliged to go by rail. It has no choice.
The parties in contracting do not stand on equal ground. The carrier.
has become all powerful. He dictates legislation. He owns legislators.
What our public policy requires at the present time is something the
courts have yet to decide.

§ 94. The carrier is not an insurer of the safety of his
passenger, (except as to assaults by his servants.)

§ 95. Whether an action by a passenger against a carrier to
recover damages for a breach of the latter’s duty as carrier is an
action ex contractu or ex delicio is not settled, except that it is
held to be immaterial.

The very fact that a decision of this point has always been avoided,
and that it can be evaded on the ground of immateriality, shows that
the distinctions between such actions is arbitrary and illogical. A man
who fails to keep his contract is guilty of a breach of duty equally with
one who fails to avoid his neighbour’on the highway. The difference
is in degree, not in kind.

§ 96. From the moment the relation of carrieranc passenger
is entered upon to the moment it ends, the carrier is answerable
for all the consequences to the passenger from the willful
misconduct or negligence of the persons employed by him in
the execution of the contract which he has undertaken towards
the passenger.

§ 97. The carrier's duty to travellers on Sunday is the same
as to those on other days without regard to the purpose of their
journey.

§ 98. When a person enters the premises of the carrier with
‘the intention to pay for and take passage in his conveyance, in
the manner prescribed by his reasonable regulations, the
relation of carrier and passenger begins.
Caus. Nzze. ] CasEs CopIFIED. 545

 

§ 99. A passenger who refuses to comply with the reason,
able regulations prescribed by the carrier for the orderly and
safe conduct of his business, may be ejected from his premises,
in a careful manner and without more violence than is necessary
to accomplish the object.

§ 100. Wherea carrier sells through passage over the lines of
himself and several connecting carriers, whether by one ticket
for all of them, or aseparate ticket for each, he is answerable for
the damages sustained by the passenger upon any part of the
journey, in the same manner as if he owned the whole route.

§ 101. A person who, without intention of paying for his pas-
sage, obtains entrance in the carrier’s conveyance, or goes upon
his premises without his permission, express or implied, is a tres-
passer who may besummarily ejected from the carrier’s premises,

Perchance these pages may fall under the eye of some socialist
or anarchist, just landed from a foreign shore, with confused notions of
the meaning of the phrase: ‘‘this is a free country.” It were well that
he should be told, what even our own citizens sometimes forget, in
regard to the law of the land, that the conveyances and the premises of
railroad companies do not belong to the public, and that no citizen,
who is not intending to be dona fide a passenger, has the right to enter
the trains or depots, or even to go upom the tracks of a railroad
company without its consent.

This should ever be borne in mind when riotous strikes are raging.

COLLECTED FROM THE FOLLOWING DECISIONS,
GROUPED UNDER THESE HEADINGS:

References to Statutes. Carrier’s Duties. (Continued.)
The Relation. (4) Management of Boats.
Free Passengers. (5) Passengers getting on or off.
Sunday ae (a) Stages.
Ejection of “ (b) Street-cars.
Several Carriers. (c) Trains.
Carrier’s Duties. As to Assistance.
As to Premises, &c. « «* Foresight.

“* «* Road-bed. s¢ « Warning.

‘* « Vehicles. se se Arrest.

“« « Diligent Carriage. «¢ «© Protection.

«« « Seating. (1) From Assault.

«« «Safe Carriage. (2) ‘ Robbery.

(1) Management of Trains. (3) ‘ Doctors.

(2) ee “* Stages. (4) ‘ Storms.

 

(3) 6 “« Street cars. (5) ‘* Collisions.
546 Cases CoDIFIED. [Cuap. IT.

 

References to Statutes.

The various statutes passed from time to time looking to the protection
of passengers have had but little part to play in the development of the
law on this subject, and a bare reference to them is all that can be
needed. ; .

(381) Horses of carrier's carriage must not ‘be left untied. (1 Rev.
Stat. 696, §5, Highway Law of 1890, Chap. 568, § 160.)

(382) Carrier liable for willful act of driver. (/¢. § 6. Ja. § 161.)

(383) Carrier must not employ servants in any way connected with the
moving power who drink intemperately. (1 Rev. Stat. 695, § 2. Highway
Law, § 158. Excise Law of 1892, Chap. 401, § 39, and see that of 1857, Chap.
628, § 31.)

(384) In regard to emigrants. (/aws of 1848, Chap. 219, § 2.)

(385) Prohibiting passengers riding on platforms of cars. (Laws of 1850,
Chap. 140, § 46. Rarlroad Law of 1890, § 53, am. ix 1892.)

(386) In regard to carriers by boat. (See Birdseye’s Rev. Stat., sub nom.
Navigation. )

(387) In regard to liability for injuries on sleeping and parlor cars, run hy
one, owned by another co. (Laws of 1858, Chap. 125, § 4. R. RK. Law of
1890, § 41, az. in 1892.)

(388) Regulating starting, stopping of trains, also as to gates on elevated
railroads. (Laws of 1881, Chap. 399. The R. R. Law of 1890, §§ 138, 139.)

The Relation.

(389) A person who takes a place in a common carrier’s conveyance in.-
tending to pay fare when required to do so is a passenger, and as such
entitled to protection. (Buffett v. Troy & Bost. R. R. Co., 40 .N. Y., 168.)

(390) A common carrier owes no duty of care to persons unlawfully on its
trains. (Zatonv. Del., Lack. & W. R. R. Co., 57 N. Y., 382.)
See infra, sub nom, Ejection.

(391) When the relation of carrier and passenger is once entered upon, the
carrier is answerable for all consequences ‘to the passenger of the willful
, misconduct or negligence of the person employed by it in the execution of
the contract which it has undertaken towards the passenger. (Palmeri v,
Manhattan R. Co., 133 NM. Y., 261.)

e

Free Passengers.

(392) A common carrier, undertaking to carry a person without compen-
sation is, in the absence atleast of an express agreement exempting it, liable
to such person for injuries sustained through its negligence. (Nolton v.
Western R. R. Co., 15 NM. Y., 444, and see Chap. V, Defenses, sub nom.
Exemptions. ) ; ‘

(393) Where there is anything in thd circumstances to create a duty either
to an individual or the public, any neglect to perform that duty from which
injury arises is actionable. (/@.) :
Caus. NEc. | Cases CODIFIED. 547

 

Sunday.

(394) When a common carrier carries passengers on Sunday, of whose
purpose in travelling it is ignorant, it owes the same duty of care to those
unlawfully, as to those lawfully, travelling. (Carroll v. Staten Isl. R. R. Co.,
58 WV. Y., 126.)

Ejection of Passengers,

(395) A regulation made by a railroad company requiring passengers to
exhibit their tickets whenever requested and directing ejection from their
cars of those who refuse to do so is a reasonable and proper one. (Aibbard
uv. N.Y. & Erie R. R. Co., 15 NM. Y., 455.)

(396) A common carrier ejecting a person from the conveyance for non-
payment of fare must not do so ina negligent manner. (Sanford v. Eighth
Ave, R. R. Co., 23 N. Y., 343-)

(397) Ifa passenger remains on a train after it has passed a station where
he should have changed cars for the place to which he had bought a ticket,
and refuses to follow the conductor’s instructions to take a train back from
the next station, he may be ejected ‘if he will not pay additional fare for
carriage on the train-where he insists upon remaining. (Barker v. N. V.
Cent. R. R. Co., 24M. ¥., 599.)

(398) Where a carrier’s couductor is acting under the carrier’s orders to
eject passengers from its conveyance who refuse to pay a specified fare, it
is answerable for anything he does in carrying out the orders, if the fare is
illegal, and if the fare is legal, it is answerable for any excessive zeal on the
part of the conductor. (Fackson v. Second Ave. R. R. Co., 47 N. V., 274.)

(399) Where a passenger proffers a ticket stamped as only good ona day
different from the date of the proffer, and refuses to pay his fare, he may
be put off the train. (Zémore v. Sands, 54 N. V., 512.)

(400) The fact that a passenger may havedrunk to excess will notin every
case justify his expulsion from a public conveyance, (Putnamv. Bway &
Second Ave. Rk. R. Co., 55 NV. Y., 108.)

(401) A carrier is answerable for the act of its conductor in ejecting a
passenger from its car under the mistaken belief that he was drunk and
disorderly. (Higgins v. Watervliet T, & R. R. Co., 46 NM. Y., 23.)

(402) If a passenger is obliged to take two trains to reach his destination,
he is not exonerated from an obligation to produce a ticket or pay his fare,
even though the conductor of the first train has improperly taken from him
his through ticket. (Zowmnsendv. N. V.C.& H.R. KR. R. Co., 56 NV. V., 295.)

(403) Where a parlor-car, owned by one corporation is run as a part of a
train belonging to another company, the porter of the parlor-car is to be
considered as servant of the latter in ejecting a person, who refuses to pay
extra fare because there were no seats in the coaches. (Zhorpev. N.Y. C.
& H.R. R.R. Co., 76M. ¥., 402.)
548 CasEs CopIFIED. [Cuape. II:

 

Several Carriers.

(404) Where several connecting carriers join in making a through route,
and divide the fares received for passage over the whole route, all are
answerable for the neghgence of the servants of any one. (Champion v.
Bostwick, 18 Wend., 175.) A

(405) Where through transportation is contracted for with a ticket agent of
a carrier, and through payment made to him, the fact that he gives to the
passenger several tickets of connecting carriers including his principal, does
not operate to prevent the latter from being considered as having madean
entire contract for the whole route. (Quimby v. Vanderbilt, 17 N. Y., 306.)

Garriers’ Duties.
(As to Premises, Depots, Platforms, &*¢.)

(406) A railroad company owes to its passengers a duty to see that there
are no obstructions on its premises which may penetrate the windows of
passing trains. (Holbrook v. Utica & Schen. R. R. Co., 12 N. Y., 236.)

(407) It is the duty of a railroad company to keep that portion of its prem-
ises, which is used by passengers with its consent for boarding or alighting
from trains, in a safe condition. (Audbert v. N. Y. Central R. R. Co., 40
NV. Y., 145.)

(408) A railroad company is bound to see that its platformsat stations are
so far free from ice, that passengers using the ordinary care of persons not
apprised of danger, will not slip. (Weston v. N. Y. Elev. R. R. Co., 73
N. ¥., 595-)

(409) It is the duty of a railroad company to provide a convenient passage
through snow from its depot to the highway. (Hoffman (Fohn) uv N.Y. Cent.
& H.R. R. R. Co., 75 N. Y., 605.)

(410) When a street-car company removes snow from its tracks, it must
not leave it in dangerous piles along the tracks. (Dixon v. B’hkiyn City &
NV. R. R. Co., 100 NM. Y., 170.)

(411) A railroad company is not bound to make immediate and continucus
removals of snow and ice, gathering to slight extent on the platforms of its
cars while in transit. (Palmer v. Pennsylvania Co., 111 NV. ¥., 488.)

(412) The omission of a railway company to clear the approaches to its
station early in the morning from sleet gathered during the night, is not
negligenge. (Kelly v. Manhattan R. Co., 112 N. Y., 443.)

(413) The fact that a small child might slip through an opening in a guard-
rail of a bridge is not enough by itself to admit of an imputation of negli-
gence in the bridge owner for maintaining the rail in that condition, where
it is shown that vast numbers of passengers, adults and children, have for
years passed by such guard-rail in safety. (Loftus v. Union Ferry Co., 54
NV. ¥., 455.)

(414) A railroad company must not construct its cars and station platfo ns
so that the car projects over the platform. (Dobiecki v. Sharp as Recr, 88
WV. Y., 203.)
Caus. Nkc. ] CasEs CopIFIED. 549

 

(415) A railroad company must not allow mail-bags to be thrown from its
cars on to station platforms where passengers are standing. (Carpenter v.
Boston & Albany R. k. Co., 97 N. Y., 494.)

(416) In constructing platforms for passengers to alight upon from its cars,
a railroad company is only bound to exercise ordinary care to make it
reasonably adequate and safe for the purpose to which it is devoted, keep-
ing in view the dangers attending its use. (Lafiin v. Buffalo & Southwestern
RR. Co., 106M. Y., 136.)

(417) It is not negligent for a railroad company to allow a space of eight
inches to exist between the platforms of a car and station, when a curve in
its track at the spot requires such space to be left and the station was
located at that place for the public convenience. (Ryan v. Manhattan Rail-
way Co., 121 NV. Y., 126.)

(418) A railroad company is not bound toso construct its tracks that it will
be impossible for a passenger, while standing on the step at the side of an
open car, to be struck by anothercar. (Craighead v. Brooklyn City RK. R.
Co., 123 NV. Y., 391.)

(419) It is not negligent in a ferry company to allow its landing bridge to
be on a different level from that of its boat. (Race w. Union Ferry Co., 138
NV. Y., 644.)

(As to Road-bed.)

(420) A common carrier is not responsible to its passengers for the dam-
ages resulting from an accident due to trespass on its track, unknown and
not expectable. (Deyov. N. VY. Cent. R. R. Co.. 34 N. Y., 9-)

(421) To warrant a recovery by a passenger in arailroad train for damages
received in accident caused by the breaking of a rail, he must show that
the break was caused by a discoverable defect in the rail, or that the
company was negligent in not discovering the break. (McPaddenv. N. Y.
Cent. R. R. Co., 44 N. ¥., 478.)

(422) A carrier by railroad is not an insurer of passengers against damages
by reason of broken rails. (Cole v. MV. Y. Cent. Rk. R. Co., 48 N. V., 679.)

(423) A common carrier of passengers, whose road-bed is along a public
highway, is not answerable for the damages resulting toits passengers from
a defect in the highway, as to which it had neither knowledge nor notice of
anything to suggest danger. (Birmingham v. Roch. City & B. R. R. Co., 137
N. Y., 13.) .
(As to Vehicles, &c.)

(424) A common carrier is bound to furnish its passengers with a vehicle
for their carriage free from defects discoverable by due diligence, even
though only discoverable during its manufacture. (Hegeman uv. West. R. R.
Co., 13 NV. Y., 9.)

(425) It is the duty of a common carrier of passengers to adopt approved
safety appliances which are in general use. (Hegemanv. West. R. R. Co.,
13M. ¥., 9. Smithu.N. Y. & Harlem R. R. Co., 19 NV. V., 127.)

(426) A common carrier is an insurer to its passengers of the road-worthi-
ness of its vehicles. (A/den v. NV. Y. Cent. R. R. Co., 26 N.Y., 102. Lenored.)
550 Cases CopIFIED. [Cuap. II.

 

(427) A ferry company is bound to maintain guard-chains in proper con-
dition to keep animals from going overboard. (Clarke v. Union Ferry Co.,
35 NV. Y., 485. Wyckoff v. Queen’s County Ferry Co., 52 N. Y., 32.)

(428) A carrier of passengers is bound toemploy any means which science
has demonstrated and made known to be tseful and effective in avoiding or
remedying defects in the construction of its vessel, although such means are
not generally used. (Caldwellv, N. F. Steamb. Co., 47 N. Y., 282.)

(429) A carrier of passengers is bound to use the utmost skill, care and
foresight in ascertaining and adopting new improvements for its vessels
so as to secure additional protection to passengers. (Caliwell uv. N. F.
Steamboat Co., 47 NV. Y., 282.) ,

(430) Omission to enclose a space between the gangway railing and deck
of a steamboat is not negligence, where the steamboats in that locality
have been so constructed for years, and no accident on account thereof
ever befell before, or was apprehended. (Dugan v. Champlain Transp. Co.
56 WV. Y., 1.)

(431) It is not negligent for a common carrier to fit up his vehicle in
the same manner as similar vehicles are usually fitted, and which experi-
ence has not shown to be unsafe. (Crocheron v. North Shore Stat. Is. F. Co,
56N. Y., 656.)

(As to Diligent Carriage.)

(432) In an action against a common carrier for breach of contract to
carry, it is no defense that the failure to carry was due to the willful act
of the ‘carrier’s servant. (Weedv. Panama R. R. Co.. 17 N. Y., 362.)

(433) It is the duty of a common carrier, in case his means of transport-
ation fail him, to use all reasonable care and diligence to provide other
means. (Williams v. Vanderbilt, 28 N. Y., 217.)

See also Ward vw. Vanderbilt, 4 Abb., C. A.D. 521. Van Buskirk v, Roberts,
31M. ¥., 661. Quimby v. Vanderbilt, 17 N. Y., 306.

(As to Seating.)

(434) A passenger may sit ina parlor-car without paying extra fare, if seats
in the other coaches are filled. (Zhorpev.N. VY. C.& H. #.R. R. Co., 76
WV. Y., 402.)

(As to Safe Carriage.)

®
(1) Management of Trains at Stations.

(435) Itis negligent to run an express train at full speed past a station
when a way train is stopping to discharge passengers. (Keller v. N. Y.
Cent. R. R. Co,, 2 Abb., C, A. D. 480.)

(436) When a train is discharging passengers at a station and an express
train is coming up at full speed on a track, between which and the station
the way train is, due precautions must be taken to see that passengers alight
from the way train on the station side of it, (Keller v. N.Y. Cent. R. R. Co.,
2 Abb., C. A. D. 480.)
Caus. NE. ] Cases CoDIFIED. 551

 

(437) When a train stops ata station to receive passengers, trains must not
pass on the track between it and the station. (Zerry v. Fewett as Ree’r,
&c., 78 NM. Y., 338.)

(438) To bring without notice at an improper rate of speed up to a depot
into the neighborhood of outgoing passengers a train, the cars of which are
so constructed as to overlap the platform provided for passengers, is
negligence. (Adrcherv. NV. Y., N. A. & AR. R. Co., 106 NV. Y., 589.)

(439) It is negligent to run a train past a station at a rapid rate when a
passenger train has stopped to discharge and receive passengers. (Parsons
vu N.Y. C& ARR. R. Co, 113 N. Y., 355-)

(2) Of Stages.
(440) If a railroadcompany undertakes to transport passengers by convey-

ance other than its trains, it owes them the same duty of care in such trans-
portation. (Buffett v. Troy & Bost. R. R. Co., 40N. Y., 168.)

(3) Of Street-Cars.,

(441) Failure on a sudden emergency to manage a street-car as well as
afterthought would show it could have been done, in order to avoid anacci-
dent, is not necessarily negligent. (Wynn v. Cent. Pk &c. RR. Co., 133
N. Y., 573-)

(4) Of Boats.

(442) It is negligent for the managers of a boat to give the signal to pas-
sengers to land, before the boat is fully secured to its place. (Ferris uv. Union
Ferry Co., 36 N. Y., 312.)

(443) It is the duty of a ferry company so to fasten its boat on landing, that
horses shall not have to step up to get off. (Hazman v. Hob. Land & Imp.
Co., 50 NV. Y., 53.)

(444) Carrying a greater pressure of steam in a boiler than is allowed by
the inspectors of boilers under the act of Congress is negligence. (Carrol/
v. Stat. Isl. R. R. Co., 58 N. Y., 126.)

(445) When fastenings for safety on a common carrier’s vehicles are tam-
pered with by an unauthorized person, the carrier is not liable for the results
when happening before discovery. (Cleveland v. N. F. Steamboat Co., 68 WV.

Y., 306, 89 WV. Y., 627, 125 WV. Y., 299.)

(446) It is not negligent as to passengers to start a steamboat before the
gangway has been closed. (/d.)

(5) While Passengers Getting On or Off.
a.—Stages.

(447) The starting of a stage while a passenger is alighting is, in the ab-
sence of proof as to the cause, evidence of negligence on the carrier's part.
(Roberts uv. Fohnson, 58 N. Y., 613.)

6.—Street-Cars.

(448) A street-car company is liable for the damages resulting from the
negligence of its employee while assisting a child in getting on board by the
552 Casrs CopIFIED. [Cuap. II.

 

front platform. (Drew v. Sixth Ave, R. R. Co., 26 NV. Y., 49, and see Drew
v. Sixth Ave. R. R. Co.,1 Abb. C. A. D., 556. S.C. 3 Keyes, 429-)

(449) A passenger’s notice toa car driver to stop is, if obeyed, as effectual
as notice to the conductor, to protect him while alighting. (Mu/hado v.
Bhlyn City R. R. Co., 30 MN. ¥., 370.)

(450) It is negligent for the driver of a street-car not to obey the signal to
stop. (Sheridan v, Bhiyn City & Newt. R. R. Co. 36 NV. Y., 39-)

(451) A street-car company must not stop its car for a passenger to get off,
when a vehicle is so close behind it and coming up at such a rate of speed
as to make a collision probable. (Maverick v. Eighth Ave. R. R. Co., 36N.

¥., 378.)

(452) When a passenger is boarding a street-car, the person who controls
its starting, should look to see if there is anyone else to get on before it
starts. (Wolfkeil v. Sixth Ave. R. R. Co., 38M. Y., 49.)

(453) It is negligence in a driver, after slowing down a street-car, to start
it up, instead of stopping it, while a passenger is carrying out his notified
intention of getting off. (Michols vu, Sixth Ave. R. R. Co., 38 N. Y., 131.)

(454) Where the passenger alighting is a female, opportunity must be given
her to gether dress clear. (Colt v. Sixth Ave. R. R. Co., 49 M. Y., 671.
Poulinv. Bway & 7th Ave. R. R. Co., 61 N. Y., 621.)

(455) It 1s not negligent for the persons in charge of a street-car to omit to
bring it to a full stop, in order to take on a man in good health and unen-
cumbered. (Moylan v. Second Ave. R, R. Co., 128 N. Y., 583.)

(456) A street-car conductor must see that a passenger lawfully entering
the car is in a place of safety before he signals the driver to proceed.
(Akersloot v. Second Ave. R. R. Co., 131 N. Y., 599.)

c.—Trains.

(457) A railroad company must take due precautions to see that its passen-
gers may alight from its trains with safety at stations. (Dickins v. N. Y. C.
R. Rk. Co., 1 Abb. C. A. D., 504.)

(458) It is negligence not to give passengers a reasonable time to alight
fromatrain, (Keller v. N.Y. Cent. R. R. Co., 2 Abb. C. A. D., 480.)

(459) When a train stops at a station, it must not be started up with a jerk
before passengers have hada reasonable opportunity to get off. (Downs v.
N.Y. Ceng. R. R. Co., 47 N. V., 83, 56 MV. Y., 664.)

(460) A place where passengers are allowed to get on and off trains is to be
considered as a station in determining whether a train is negligently
started. (Keating v. N. Y. Cent. R.R. Co., 49 N. Y., 673.)

(461) It is negligent for a railroad company to bring its trains to a stop ata
depot so suddenly as to throw passengers off their balance. (Wylde v.,
Northern R. R. Co. of N. F., 53 N. Y., 156.)

(462) The sudden jerking of a train while a passenger is rightfully passing

out of the car to alight, is negligence. (Sauter v. V. V.C.& A. R.R.R. Co.
66. Y., 50.) : :
Cavs. NEG, ] CasEs CoDIFIED. 553

 

(463) A common carrier owes a duty to a drunken passenger not tojerkits
train while he is getting off at astation where it has stopped. (A@i/liman v.
N.Y. C.& HR. RR. Co., 66 N. Y., 642.)

(464) Trains must be brought toa full stop. (Filer v. N.Y. Cent. R. R.
Co.. 49 NV. ¥., 47. Buckerv.N. VC. & H.R. RR. Co.,98 N. Y., 128.)

(465) A railroad company is not bound to hold its train so that a belated
passenger may get on board.
Or,

(466) After reasonable opportunity has been given for passengers to leave
or board a train at a station and the signals to start it have been given, a
railroad company is not bound to hold its train so that a belated passenger
may get on board. (Paulitschu. N. Y.C. & H.R. R. R. Co., 102M. Y. 280.)

(467) It is negligent management of a railroad train when, after a station
‘has been announced to passengers and the train has slowed down, so that
to persons of ordinary intelligence, it appears to have stopped, and
passengers are about to alight, it is allowed to be jerked or started suddenly
without warning. (Bartholomewv. N.Y. C. & H.R. R. R, Co., 102 N. Y. 716.)

(468) When a passenger is using reasonable diligence to get off a trainat a
station, it must not be started until he has gotten off. (McDonald v. Long
dsl. R. R. Co., 116 N. Y., 546.)

(469) Starting a train while a passenger is in the doorway ofa car waiting
for a chance to get off is negligence. (Baker v. Manhattan R. Co., 118 NV. Y.,
533-)

(470) Negligence can not be predicated of the management of a train ata
station from the mere fact that it runs over a passenger, who has alighted
from another train, and passed behind the latter and on to the track where
heisrun over. (Goldbergv. N.Y. C.& H.R. R. R. Co., 133 NM. Y. 561.)

(As to Assistance.)

(471) A railroad company is not bound at properly constructed stations to
provide a person to assist passengers to alight. (Laflinv. Buff. & Southwest.
RR. Co., 106 MV. Y., 136.)

(As to Foresight.)

(472) A common carrier is not bound to foresee and guard against the
results of the conjunctive occurrence of incidents, no one of which in itself
would have been sufficient to produce an injury to a passenger. (Cleveland
wv. New Fersey St. Co,, 68 N. Y., 306.)

See Storm and Wind, zxz/ra.

(As to Warning.)
(473) A railroad company is under no obligation to its passengers to warn

them of the danger of riding on the step of an open car. (Craighead v, B'klyn
City R. R. Co., 123 NM. Y., 391.)

(474) When a ship is being warped to a dock, its officers should warn
passengers to stand away from the hawser. (Miller v. Ocean S, S. Co., 118
N. Y., 199.)
554 Cases CODIFIED. [Cuap. II.

(As to Arrest Of.)

(475) The arrest by a police officer, with the aid of a carrier’s ticket agent,
of a passenger on suspicion of his having given a counterfeit bill to the
ticket agent is not, in the absence of authority by the carrier, a breach by
the carrier of any duty to the passenger. (Muliganv. N. Y. & Rock. B. R.
R. Co., 129 MN. Y., 506.)

(476) A common carrier is responsible for the false arrest of a passenger
made by its ‘ticket agent on a charge that the passenger has passed a.
counterfeit when purchasing a ticket. (Palmeri v. Manhattan R. Co., 133 N.
Y., 261.)

(As to Protection.)

(1) From Assaults, &c.

(477) A common carrier is not liable for the damages inflicted upon
one passenger in an assault by a drunken passenger, where it was not
committed under’such circumstances as fairly to forewarn the carrier of
its likelihood.

Or,

(478) It is not negligent in a common carrier to fail to protect a passenger
from an assault by a drunken passenger, where there was nothing to
excite suspicion that the assault would be made. (Futnam v. B’way &
Seventh Ave. R. R. Co., 55 N. Y., 108.)

(479) Acommon carrier must protect its passengers from assault by its.
servants. (Stewart v. Bklyn Crosstown R. R. Co., 90 N. Y., 588, formally
overruling Isaacs’ case; Schultz v. Third Ave. R. R. Co., 89 MN. Y,, 242-)

(480) When through the negligence of a common carrier a passenger is.
frightened into a state of helplessness, the carrier owesa duty of protecting
such passenger from harm occurring while and because helpless. (Smith v.
British & N. Am. S. P.Co., 86 WM. Y., 408.)

(481) A railroad company is not bound to remove from the racks above the
seats in its cars packages placed there by passengers, unless they are
obviously improper for carriage in such places. (Morris vu. N. Y.C. & HF.
R. RR. Co., 106 N. Y,, 678.)

(482) A railroad company is responsible toa passenger for an unprovoked
assault upon him by a porter of a sleeping-car, whatever may have been
the latter’s motive, and notwithstanding that it neither owns the sleeping-
cars, nor hires nor pays the porter. (Dwinelle v. N. Y. C.& AR. RR.
Co., 120 MN. Y., 117.)

(2) From Robbery.

(483) A common carrier is under no duty to protect its passenger from the
robbery of valuable securities, which he may choose to carry on his person
during his journey. (Weeks v.N. Y., N. Hav. & H.R. R. Co.y72 N. ¥., 50 )

(484) A railroad company, which runs sleeping-cars on its road with
sections separated from the aisle only by curtains, owes a duty to its
passengers to have anemployee continually on the watch in the aisle while
theyareasleep. (Carpenter v. N. Y., New Hav. & H.R. R. Co., 124 N.Y., 53°)
Caus. NE«. ] Caszs CopIFIED. 555

 

(3) From Doctors.

(485) A carrier of passengers by sea, which is under, and has performed,
the duty of employing upon its shipa duly qualified physician and supplying
medicine fora voyage properly packed and labelled, and having it inspetted
according to statute, owes no duty to a passenger to see that the physician
keeps the medicine in such a way as to lessen the chances of mistake by
such physician in giving it out. (Alan v. State S. S. Co., 132 N. Y., 91.)

(4) From Storm and Wind.

(486) It is the duty of a railroad company to secure its cars on side tracks,
so that any expectable wind will not blow them on to the main track.
(Webster v. Rome, W. & Og. R. R. Co., 115 N. Y., 112.)

(487) Negligence in not suspending entirely the running ofitstrains during
an unprecedented storm, cannot be predicated of a railroad company, when
the storm had been unheralded, had apparently abated somewhat initsfury,
and many passengers were seeking transportation. (Connelly v. Manhattan
Railway Co., 142 N. Y., 377.)

(5) From Collisions.

(488) It is negligent to allow a collision between two trains going in
opposite directions on the same track. (Buel v. MV. Y. Cent. R. R. Co., 3%
NV. Y., 34.)

(489) A railroad company owes a duty to its passengers not to run its train
at speed when a cow is grazing so near the track as to afford likelihood of a
collision. (Brown vu. N. Y. Cent. R. R. Co., 34 NM. Y., 404.)

(490) A carrier of passengers is bound to stop his vehicle, if he can, so as
to avoid a threatened collision.‘ (Barrett v. Third Ave. R. R. Co. 45 N. Y.,
628.)

(491) A carrier of passengers, on crossing a steam railroad track, is bound
to use the utmost skill and foresight. (Coddington v. B’klyn Crosst. R. #', Co.,
102 WV. Y., 66.)

(492) The failure of a driver of a street-car, whose brake-chain breaks on
a down grade, to shout to the car ahead, or to turn his horses to one side to
drag his runaway car off the track, sv as to avert collision with the car
ahead, is not negligence. (Wynn v. Cent. Park, N.& E.R. R. R. Co., 133

NV. Y., 575.)
A.—Of Goods. .

§ 102. A common carrier may limit by contract, express or
implied, but not by notice, his common law liability as an
insurer of goods carried by him.

§ 103. Ifthe liability of a common carrier has been limited
by a contract, which does not specifically exempt it from liability
for negligence, it is answerable for negligence, even though the
language of the limitation is comprehensive enough to include
such an exemption.
556 Cases CoDIFIED. (Cuap, IT.

Or: Acarrier can not limit its liability for damages resulting from
negligence by any phrase, however general or comprehensive, which
does not use the word, negligence.

§ 104. The plaintiff's cause of action under a contract such as
that mentioned in the last section is a cause of action for

negligence, which he must aver and prove.
Qurry.—As the gist of such an action is negligence, should the rules
as to the duty of the carrier to passengers apply so far as their subject
matter will allow ?

§ 105. In the carriage of animals, the liability of the carrier,
as to such injuries as happen to them by virtue of their being
animals, is not that of insurer, but for negligence only.

§ 106. The liability of a telegraph company in the transmission
of messages is not that of an insurer of their correctness, but for
negligence only.

COLLECTED FROM THE FOLLOWING DECISIONS,
GROUPED UNDER THESE HEADINGS:

Limiting Liability. Duty under Limited Liability.
By Contract. Miscellaneous.
‘* Statute. List of Cases.

Limiting Liability.
(By Contract.)

(493) A common carrier may limit by contract its liability for injury to
goods in transit. (Dorrv. NV. F. Steam Nav. Co.,11 NV. Y., 485.)

(494) Where goods are carried at owner's risk, evidence that they were
injured in a railroad accident does not warrant an inference that the injury
was due to the carrier’s negligence. (French v, Buff. & E. R, R. Co., 2 Abb.
C. A. D., 196.)

(495) An exemption clause in a receipt for baggage given by an express
agent toa ffaveller on board a train, under circumstances which would not
fairly apprize him of its existence therein, is inoperative. (Blossom v. Dodd.
43 WV. Y., 264.)

(496) A telegraph company may limit its liability on a message by notice
duly brought to the sender’s knowledge. (Breese v. U. S. Tel, Co., 48 N. Y,,
132.)

(497) The sender of a telegram may be presumed to know and assentto a
condition printed on blanks, which have been in his possession for some
time. (/d.)
Caus. NEc. ] CasEs CopIFIED. 557

 

(498) The common law liability of asucceeding carrier may not be limited
by a prior carrier by virtue of a contract between the latter and the shipper
limiting his own liability over his own route and making him a forwarder
only.

Or,

A shipper who contracts with a carrier to have his goods carried to the
end of the latter’s route and then forwarded by another carrier, does not
by virtue of a clause in the contract limiting the common law liability of
the first carrier thereby empower the latter to limit that of the next
carrier. (Badcock v. Lake Shore & M.S. R. R. Co., 49 N. V., 491.)

(499) In the absence of fraud, concealment or improper practice, the legal
presumption is that an exemption clause contained in a receipt given for
express matter is known and assented to by the party receiving it. (Belger
uv. Dinsmore, 51 N. Y., 166.)

(500) A clause in an express receipt, that the express company shall not
be liable for any loss of a package for over fifty dollars unless the value
thereof was stated, does not include a loss occasioned by the company’s
negligence. (Westcott v. Fargo, 61 NV. Y., 542.)

(501) A telegraph company cannot limit its common law liability for
negligence by a mere notice. (Pearsall v.West. Un. Tel. Co., 124 N.Y., 256.)

(502) The sender of a telegram is not bound by what the telegraph
company may choose to print upon its message blanks, unless he knows
the contents or his attention is called thereto at the time he sends a
message. (//.)

(503) An agreement with a carrier to transporta horse at reduced rates in
consideration of his being valued at a specific sum in case of death or
injury, precludes the shipper from recovering any largersum, (Zimmer v.
N.Y.C.& H, R. R. Co., 137 N. Y., 460.)

(504) Where goods are shipped under a bill of lading, which calls for
shipment per named steamer to.an intermediate port and thence by trans-
shipment to place of destination, and the bill of lading contains a clause of
exemption from various perils including perils of Jand transit, and the
shipper knows that the said steamer never goes as far as the intermediate
port, but that it is customary for her to carry freight only part of the way
and then to forward it by land to the intermediate port, there is no such
deviation in the stipulated route as to override the exemption clauses, and
render the carrier liable as insurer. (Robertson. Nat'l S.S.Co.,139 WV. Y.,416.)

(By Statute.)

(505) The provisions of the Act of Congress of March 3, 1851, that the
owner of a vessel shall not be liable for loss or damage to any goods or
merchandise shipped or taken on board any vessel by reason of fire occuring
on such vessel, unless caused by the design or neglect of the owner, extend
to ordinary baggage of passengers. (Chamberlain v. West. Transp, Co.. 44
N. Y., 305.)
558 Cases CoDIFIED. [Cuap. II,

 

(506) Section 4281 of the U. S. Rev. Stat. was not intended to permit an
owner of a vessel to refuse to account for the articles therein enumerated
when shipped under the circumstances therein specified, but only to relieve
him from his common law liability as an insurer of them. (Wheeler v.
Oceanic Steam Nav. Co., 125 NV. Y., 155, and see Carlson v. Oceanic Steam
Nav. Co., 109 NV. Y., 359.)

Duty under limited liability.

(507) A carrier of goods owes no duty to a shipper, who has taken the risk
of fire, to adopt all contrivances for safety against fire known to science
before they have become generally known and in use. (Steinweg v. Erie
Railway Co., 43 N. Y., 123.) ,

(s08) The exemption of a carrier in a bill of lading from loss by fire does
not apply where the fire occurs through its negligence, but in such a case
the burden of proof is on the shipper to show negligence. (Laméd v. Cam, &
Amb. R. R. & T. Co., 46 N. Y., 271.)

(509) A shipper’s consent that his goods may be carried on deck does not
relieve the carrier from the consequences of his own neglect to cover them
from the rain. (Schwinger v. Raymond, 83 N. Y., 192.)

(510) A common carrier owes to a shipper, whose property it carries under
acontract exempting it from liability for damages by fire, the duty of
supplying its train with proper appliances to put fires out. (Holsapple v.
Rome, Wat. & Og. R. R. Co., 86 N. Y., 275.)

Miscellaneous.

(511) A sudden gust of wind diverting the course of a distant fire so as to
drive the flames in the direction of and upon goods in transit is not te be
considered as an act of God which excuses the carrier for their loss. (Miler
v. Steam Navig. Co.,10N. Y., 431.)

(512) It is not negligence fora railroad company to fail to transport freight
in the usual time, where its resources are taxed beyond their capacity by
an unusual amount of freight. (Wibert v. NV. V. and Erie R. R. Co., 12M
V., 245.)

(513) A carrier’s failure to transport goods is no more excused by the
wilful misconduct, than by the neglect, of servants. (Blackstock v. N.Y,
& Erie R. R. Co., 20 N. ¥., 48.)

(514) Acommon carrier of goods is excused for a delay in forwarding
goods, which is due to riotous strikers, who, by intimidation of remaining
employees, prevent them from moving its trains, (Getsmer v, Lake Shore &
M.S. R. R. Co., 102 NV. Y., 563.)

(515) If an ‘‘act of God’’ is relied on to excuse acarrier for injury to goods
in transit, he must show that his own negligence did not assist. (Michaels
v.N. Y.-C. R. R. Co., 30 NV. Y., 564.)

(516) Ferry companies must have proper guard-chains or gates, to keep
animals from going overboard. (Clarke v. Union ferry Co., 35 N. Y., 485,
Wychoff v. Quecns Co, F. Co., 52 N. ¥., 32, Other cases as to animals, z#/ra.)
Caus. Nxc.] CasEs CODIFIED. 559

 

(517) Telegraph companies must not transmit messages to the effect that a
person is worthy of credit, without taking care to ascertain that the message
is really authorized by the apparent sender. (Z/wood v. West. Un. Tel. Co.,
45 ¥. ¥.. 549.)

(518) A telegraph company is not an insurer. (Breese v. U. S. Tel. Co., 48
NV. Y., 132.)

(519) Express companies must make diligent effort to make personal
delivery of express packages. (Witbeck v. Holland, 45 N. Y., 13.)

(520) The owner of merchandise, checked as baggage upon a ticket of
another person, may recover from the carrier for its loss where the carrier
has at the time notice that it is not baggage and receives an extra compen-
sation for carrying it. (Sloman v. Great West. R. R. Co., 67 N. Y., 208.)

List of Cases.

As bills of lading, express receipts and telegraph blanks usually
contain a mass of matter printed in fine type, and in exasperatingly
wide columns, where may be hidden and not easily found various
exemption clauses, which the carrier’s customer would never suspect
were there, and could not understand, even if able to decipher them, it
would be travelling too far afield to give a further digest of the cases on
this subject. It would also be a work of supererogation in view of the
book of Mr. Everett P. Wheeler, Modern Law of Carrier, where the
subject is so ably treated. For convenience of reference, a list of them
is given in Part III of this book, under these headings:

Animals iz transitu.

Goods ‘ us
(1) Delays.
(2) Loss by fire.
(3) Other injury to or loss of.
(4) Disputes as to deliveries.
(5) Miscellaneous,

Baggage.

Express parcels.

Telegrams.

For Special Carriers, see Art. V, Miscell. Def’ts.

The author ventures to suggest that it follows from the cases,
especially from Plossom v. Dodd, supra, Pearsallv. West. Un. Tel. Co.,
supra, and also Rathbone v. N.V.C.& H.R. R. RR, Co., 1440 N.Y,
48, that in every instance where fine type, broad columns, and intricate
expression in a bill of lading, illustrate the truth of Talleyrand’s motto,
that language is to conceal thought, a question of fraud may fairly be
raised, and an issue on it sent tothe jury. The following section is
submitted as embodying a corollary from these decisions. It is to be
remembered that when in Dorrv. N. F. Steamboat Co. the court said it
was not against public policy for the carrier to limit his liability by con-
tract, it did not decide that he could do so by fraud, trick and device.

In this connection, it will be interesting to recall the way in which
not long ago a merchant lost a right of action by means of two
560 Cases Conirien. [Cuap. IT.

independent devices, the one of a carrier, the other of an insurance
company. Each had hid away in small type and broad columns a clause
referring to the other, of which clauses the shipper-insurer never heard
until after his goods had been burned 7» transitu. These clauses were
so shrewdly worded that the unfortunate owner, who lost his goods,
could not recover from either compatiy. (See Fayerweather v. Phenix

ins. Co., 118 NV. Y, 324, supra, p. 377.)

§ 107. When the contract for the shipment of goods is
upon a printed blank, prepared by the carrier, and which
has been so arranged that exemption clauses, limiting his
common law liability, are wrapped in such involved phraseol-
ogy, and printed in such fine type and broad columns, that the
fact that they are there, is not likely to be noticed by the
shipper, or if noticed their meaning is not likely to be clearly
understood by him, it is a question of fact whether by the use
of such a blank, the carrier intended to entrap the shipper into
making a different contract from the one intended, and if he
did, such exemption clauses are wholly inoperative and void.

Quare.—See preceding note.

(Chap. IT, Til. 1V—Continued.)
ARTICLE III.—TRAVELLERS ON, AND OCCUPANTS OF, HIGHWAYS.

§ 108. The highways of this state are travelled public roads,
streets, sidewalks, public alleys, navigable streams, and certain
rivers used for the purpose of floating logs and lumber.

§ 109. The right to travel upon the highway includes the
tight of stopping upon it for a reasonable time, dependent upon
the purpwse for which the stop is made.

§ iro. The right of moving one’s goods upon the highway
includes the right to leave such goods stationary upon the
highway a reasonable time.

§ 111. An adjoining owner has the right to temporarily
obstruct passage along the highway by digging excavations in
it or placing building material upon it, provided he obtains the
proper permit therefor.
Cans. Nica. | Casts Copietin, Gl

8irr2, Whether the leyislature can, without closing a biphway,
authorize gach permanent occupation and use of a highway by
a railroad company as completely destroys its dee is a highway,
has uot yet been settled in (his state,

$113. Mvery person in using the highway must do so in i
careful manner, and only to a reasonable extent, and with duc
regard lo the righbs of every other person,

84. Where railroad tracks are laid on, over or under the
highway, (heir owners must sec thal they are so laid and main-
tained as not to iatertere with safe travel by the public.

8415, Railroad companion have the right of way for their
trains al Crossinyprs.

8116.) Drivers of vehicles other than street cars mast keep to
the riplt of each other, except that upon meetings a streetcar,
the driver of another vehich: may pass on cilher side of the car.

Sar, ‘There is no right of way for streetcars other Uhiuns that
of passage alony their (racks as free and unobstructed as the
traffic in the street around them will reasonably permit.

$118. ‘There is no more right of way for vehicles tu a lipeh-
way than for foot-passenpers,

Sig. There is no right of way at all for vehicles upon side-
walks, excepl thal of passage across them from private promises,
or under ordinance permittinge them to go upou the sidewall
under special circumstances,

The words without authority’ are Incorrectly used in § 652 of the
Pond! Code, Uf they are used inany other sense (han unlawfully, they
are inoperative.

The fact thal there happens to be a sidewalle In the way can uot
operate to durn the right fo drive to the highway from private
promises filo something dependent apon ao official's perminslon,

8120, Vehicles must not be stored in the highway even
under perdit of municipal authorities,

§i2t, Arvailroad company, vpon whose tracks trains are ran,
must adopt sufficient means to warn (travellers at crossings of
approaching: traiis,

8122. Arailroad company must nol run {ts trains al rapid
rates of speed over public crossings in thickly populated places,
which are not pruned by grates,
562 Cases CoDIFIgD. [Cuap. IT.

 

§ 123. Where crossings, though really private, are by
general consent and usage treated as public crossings, they are
to be considered as such for the purpose of determining the duty
of the railroad company in regard to the management of its
trains in approaching them.

§ 124. A railroad company is not bound, unless required to
do so by order of court pursuant to the statute in such case
made and provided, to station a flagman, or erect gates, at
crossings, but its failure to do so may be taken into account in
determining whether a particular train on approaching a
crossing was negligently managed.

§ 125. Ifa railroad company does station a flagman or erect
gates at a crossing it must see that he properly perform his
duty to warn travellers of trains, and that the gates are duly
used for their protection.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS:

References to Statutes. Management of Vehicles &c.
What are Highways. of Trains.

Right of Way. ‘« Street-cars.

Tracks along, over, across. ‘« other Vehicles,
Telegraph Lines. “«* Animals.
Obstructions, ‘* Vessels.
Excavations. “* of Rafts.

References to Statutes.

(521) ‘*All lands which shall have been used by the public as a highway
for the period of twenty years or more, shall be a highway, with the same
force and effect as if it had been duly laid out and recorded as a highway,
and the commissioners of highways shall order the overseers of highways
to open all such highways to the width of at least two rods.” (The Highway
Law, § 100; similar provision in 1 Rev, Stat. 521.)

(522) Ev@ry highway not opened and worked within six years from its
dedication, and every highway not travelled or used as a highway for six
years shall cease to be a highway. (The Highway Law, § 99.)

(523) ‘‘ Whenever any persons travelling with any carriages shall meet
on any turnpike road, or highway, the persons so meeting shall
seasonably turn their carriages to the right of the centre of the road,
so as to permit such carriages to pass without interference or interruption,
under the penalty of five dollars for every neglect or offense, to be
a by the party injured.” ( Zhe fiighway Law, § 157, 1 Rev, Stat. 695,

1.)
Caus. NEc. ] CasEs CopIFIED. 563

 

It was thought that this amusingly cumbrous way of enacting the
law of the road, that drivers of carriages when meeting others must
drive to the right, might be given here as an illustration of the invincible
argument against a statutory codification of our common law, that
statute law is always badly worded, and usually breeds more doubt
than it allays. Can any one conceive any purpose for enacting and
re-enacting the above penalty of five dollars except to engender strife,
as to whether it is a statutory liquidation of the damages ?

(524) Owners of carriages running for the conveyance of passengers are
liable for the willful as well as negligent acts of their drivers while driving
their carriages, (/d. § 161, &. S. § 6.)

(525) Carriages in this state, so far as the law of the road is concerned,
include ‘‘stagecoaches, wagons, carts, sleighs, sleds, and every other
carriage or vehicle used for the transportation of persons and goods or of
either of them, and bicycles, tricycles, and all other vehicles propelled by
manumotive or pedomotive power.” (/d. 3 162, XR. S. § 7.)

(526) Rivers on which logs and lumber are rafted are recognized as public
highways. (Laws of 1880, chap. 533. See Laws 1891, chap. 385, excepting
certain rivers.)

(527) Railroad companies when constructing their roads, across any high-
way or watercourse, must ‘‘restore the stream or watercourse, street,
highway, plankroad and turnpike thus intersected or touched to its former
state, or to such state as not unnecessarily to have impaired its usefulness.”
(Laws of 1850, chap. 140, § 28, sub-div. 5. See Laws of 1853, chap. 62. Rail-
road Law of 1890, § 32.)

(528) Railroad companies musi, except in cities and villages, erect and
maintain ‘‘across each traveled public road or street where the same is
crossed by the railroad on the same level” boards on which shall be painted
the words ‘‘ Railroad crossing, look out for the cars.” (/¢.§ 40. Railroad
Law of 1890, § 33. See also &. R. Law of 1850.)

This act has been in existence for nearly fifty years, and it may be
safely said that there is nowhere in the whole state any such sign
“‘across’’ any road. Is placing it at the side of the road an equivalent?
Had the railroads obeyed the statute, they might have been successful
in many a ‘‘crossing” suit, for under this provision, it is clear that the
legislature meant that the traveller who should pass under such a
notice, should take the risk of crossing in all cases where due heed to
its warning would have saved him from injury. Many a case has been
sent to the jury, which must have been dismissed, if the statutory
reminder had been ‘‘across ”’ the highway.

(529) The provisions of the general railroad act (Laws of 1850, chap. 140, §
39) requiring that a bell shall be rung on each locomotive ‘at the distance
of at least eighty rods from the place where the railroad shall cross any
travelled public road, or street, and be kept ringing until it shall have
crossed such road or street,”’ and that a steam whistle shall be sounded ‘‘at
least eighty rods from the place where the railroad shall cross any such
road or street, except in cities, and be sounded at intervals until it shall
have crossed such road or street,’? and making the company “liable for all
AGL CasEs CODIFIED, [Cuap. IT,

 

damages which shall be sustained by any person by reason of such neglect,”
have been repealed. (Laws of 1886, chap. 593, § 1, p- 25.)

(530) Any person acting as engineer, driving a locomotive, who fails to
ring the bell or sound the whistle, as set forth in the last paragraph, is guilty
of a misdemeanor. (Fenal Code, § 421.) *

(531) A railroad company may be required to station flagmen or erect
gates at crossings by an order of the supreme court, or county court, ‘‘ upon
the application of the local authorities,’’ (whatever that may mean) to the
court on ten days notice, and after a refusal or neglect by the company to
comply with a request of ‘‘such local authorities’? todoso. (Laws of 1884,
chap. 439, § 3. Railroad Law of 1890, § 33.)

The first was entitled ‘‘an act for the better protection of life and
property upon the railroads of this state, to promote the safer and better
management of steam railroads.’’ It is a convenient act, and should be
consulted in suits against railroad companies by travellers on the
highway, as well as by passengers and servants. It is, however, open
to question whether it really strengthens any litigant’s case to recover
damages for an injury sustained at a crossing.

(532) Under the act entitled ‘‘an act to create a board of railroad commis-
sioners and to define and regulate the powers and duties” the railroad
commissioners are given certain powers over the railroads, which may
affect suits to recover damages where neglect to comply with their direc-
tion can be urged as the proximate cause of an injury. (Laws of 1882, chap.
353-) \

(533) The various provisions of the statute law as the laying out, use or
occupation of highways and the duties of officials in regard to the same are
too numerous to be given here, (See The Highway Law of 1890, and
amendments to same.)

What are Highways.

(534) Where a bridge across a canal, which intersects a city street, is, with
the state’s permission, used as a part of the street, it is to be considered as
a highway for the purpose of determining the rights of travellers thereon.
(Birmingham v. Rochester City & B. R. R. Co., 137 N. ¥., 13:)

(535) Floating logs down rivers is not unlawful. (Town of Pierrepont v.
Loveless, 72 N. Y., 211.)
And seg Title II, Municipalities, supra sub. nom. same heading.

Right of Way.

(536) Where one of two vehicles meeting ona highway is a car travelling
on a track, the act requiring meeting vehicles to turn to the right, does not
apply to either. (Heganv. Eighth Ave. R. R. Co., 15 N. ¥., 380. )

(537) A railroad company has the right of way at crossings. (Warner v.
N.Y. Cent. R. R. Co., 44 NW. Y.z, 465.)

(538) Foot-passengers when crossing streets have no superior right of way
over vehicles. (Barker v. Savage, 45 N. Y., IgI.)
Caus. NEc. ] Cases CopiFIED. 565

 

(539) As to willful act of driver of street-car in asserting maliciously a
right of way for his car. (Whitaker v. Eighth Ave. R. R, Co., 51 N. Y., 295.)

(540) Vehicles may be driven along the street-car tracks if due regard is
paid to the paramount right of way belonging to the car. (Adolph v. Cent.
Park N.& E.R. R. R. Co., 65 N. Y., 554.)

(541) Street-cars have no exclusive, but only a paramount right of way
along their tracks. (Fleckenstein v. Dry Dock, &c. R. R. Co., 105 N. Y., 655.)

(542) A street-car at a crossing has no right of way over a vehicle coming
down the other street. (O'Neil v. Dry Dock E. B. & B, R. R. Co., 129
M. Y., 125.)

Tracks Along, Over, Across.

(543) A street-car company, which maintains a track in a street, must
see that the street between the rails of itstrack is safe fur passage. (Worster
uv, 42d & Grand St. F. R. R.Co., 50 NV. Y., 203.)

(544) The omission to replace planks taken up from a railroad crossing
with the result of leaving deep holes is negligence. (Smith v. N. Y. & Osw.
Mid, R. R. Co., 63 N. Y., 58.)

(545) It is not negligent for a railroad company to place anything near its
crossing which obstructs the view of its track. (Cordell v. N. V.C.& H.
RR. R. Co., 70 NV. Y., 119.)

(546) A person, under contract with a municipality to keep any portion of
its streets in repair, is bound to keep such portion safe for passage over a
lawful excavation dug by the municipality or by its permission fora purpose
fairly within view of the parties when the contract was made. (AfcMahon v.
Second Ave. R. R. Co., 75 N. ¥., 231.)

(547) A street-car company, having a license to run on the track of another
company on making and paying for the necessary switches, and having laid
the switches properly, does not succeed to any obligation which the other
company may be under of keeping the street at such places in repair.
(Lowery v. B’klyn City & N. R. R. Co., 76 NV. Y., 28.)

(548) It is the duty of a railroad company to keep its crossings safe for the
passage of travellers. (Gale v. NV. Y.C.&@ H.R. R. R. Co., 76M. Y., 594.)

(549) It is negligent for a railroad company to lay its rails in city streets
above the surface without any arrangement to allow wagons to pass. over
them easily. (Wasmer v. Del., L. & WR. R. Co., 80 N. Y., 212.)

(550) Switches in tracks on publicstreets must be so placed and maintained
that travellers, using due care, may pass over them safely. (Wooley v. Grand
St. & Newt. R. R. Co., 83 N. Y., 121.)

(551) A railroad company is not relieved from liability for damages
resulting from an unsafe crossing by the fact that a street-car company
whose tracks cross at the same spot is also under a duty to keep the crossing
safe, (Masterson v. N.Y. C.& H.R. R. R. Co., 84M. V., 247.)

(552) When a street-car company removes snow from its tracks, it must
not leave it in dangerous piles along the tracks. (Dixon v. Bhiyn City &
Newtown R, R. Co., 100 N. Y., 170.)
566 CasEs CoDIFIED. (Cuap. II.

 

(553) When a crossing is being constructed over a railroad track, any
temporary crossing must be made reasonably safe for temporary use.
(Rembe v. N. Y., Ont., & West. R. R. Co., 102 NV. Y., 721.)

(554) A street-car company must not only construct, but must maintain, its
track so that the rails shall be level witli the street. (Schild v. Cent. Park, N.
& E.R. R. Co., 133 N. Y., 446.)

(555) A railroad company whose track is over a highway must keep its
structures in such repair that things do not fall from it on to passers-by
underneath. (Volkmar v. Manhattan R. Co,, 134 WV. Y., 418.)

Telegraph Lines.

(556) Telegraph wiresin navigable streams must be laid on the bed of the
stream. (Blanchard v. West. Un, Tel. Co., 60 N. Y., 510.)

(557) A telegraph company is not bound so to make or manage its line as
to guard against storms of unusual severity, the occurrence of which could
not be reasonably expected, (Wardv,. At. &. Pac. Tel. Co., 71 N. Y., 81.)

see also Art. IV., Owners of Real Prop., sab xom., Abutters.

Obstructions.

(558) It is the duty of a plank road company when changing a highway
into a plank road, to do soin such a manner as to permit public travel in
safety while the change is being made. (/reland v. Osw. &c, P. R. Co., 13
NV. Y., 526.)

(559) An improperly constructed platform in a sidewalk is a nuisance,
notwithstanding its approval by the city authorities. (Kessel v. Butler, 53
NV. Y., 612.)

(560) Material placed by the roadside for its repair, in such a way as to
frighten horses driven past it, is an obstruction to safe passsge on the
highway.

Or,

Leaving material for repairing a highway, piled along its side in such
a way as to frighten horses,*is, after notice of its tendency to frighten them,
negligence. (L£yggleston v. Columbia Turnpike Co., 82 N. Y., 278.) See Whit-
ney v. Town of Ti., 127 N. Y., 40.

(561) It is lawfulto obstruct a sidewalk temporarily by placing skids across
it over which to remove one’s goods. (Welsh v. Wilson, 101 N. Y., 254.)

(562) A person lawfully obstructing a sidewalk is under no obligation to
furnish an absolutely safe passage-way around the obstruction. (/d.)

(563) A city ordinance prohibiting goods, wares, merchandise or anything
being hung on the front of a building does not apply to scaffolds hung for
the purpose of repairing the building. (Hexamer v, Webb, 101 N. Y., 377.)

See also Volan v. King, nextsub-div.; also Art. IV., Owners of Real Prop.,
sub nom., Abutters.

Excavations.

(564) A lot-owner who digs post-holes for a fence along a sidewalk must
guard them. (Wright v. Sanders, 3 Keyes, 323 )
Caus. NEG. ] Cases CopIFIED. 567

 

(565) He who without permit from municipal authorities interferes with
safe passage along a sidewalk is liable for the damages resulting therefrom.
(Congreve v. Smith, 18 N. Y., 79.)

(566) As to areas in sidewalks, see Davenport v. Rudman, 37 N. Y., 568,
Art. IV., Owners of Real Prop., sub xom., Landlord.

(567) It is negligent to leave an excavation in a sidewalk open at night
without taking any precautions to warn passers-by. (Sexton uv. Zett, 44 N. Y.,
430.)

(568) It is a nuisance to maintain a hole in a sidewalk into which steam is
discharged. (McGarry v, Loomis, 63 N. Y., 104.)

(569) In building a temporary bridge over an excavation ina sidewalk, the
builder is under no obligation to make it as safe as the sidewalk, but he
fulfils his duty if he makes it reasonably safe and free from peril to
persons crossing it with such ordinary prudence as such structure requires.
(Nolan v. King, 97 N. Y., 565.)

(570) A permit by the proper municipal authorities to construct a coal-hole
in a sidewalk does not give any right to let the hole remain uncovered.
(Pennings v. Van Schaick, 108 N. Y., 530.)

(571) An excavation at the rear of a store, bordering on an alley nota
thoroughfare, bounded at each end by buildings extending tothe lineof the
alley and divided from the alley by a wall seven inches high and two feet
wide, is not so imminently dangerous as to bea nuisance. (Sond v. Smith,
113M. ¥., 378.)

(572) A house-owner who takes due precaution to cover an outside
approach from the sidewalk to his cellar and has his house patrolled by a
watchman, is not chargeable with negligence in allowing the approach to
‘tbe uncovered, when the cover is removed without his authority or
knowledge while the patrol is at a different part of his round. (Martin v,
Pettit, 117 N. Y., 118.)

As to vaults see Batbage v. Powers, 130 N. Y., 281; Chap. V, Defenses ;
Chap. VII, Evidence.

See also, Owners, Art. IV, sab xom., Abutters.

Management of Vehicles and Vessels &c.
(Of Trains.)
(1) At Public Crossings.

(573) A person in charge of a locomotive, moving through a city, must
keep his eye on the track ahead of the engine, even though it is moving
slowly, and the bellis rung. (Bernhard v. Rens. & Sar. R. R. Co., 1 Abb.
C. A. D., 131.)

(574) Itis negligence tor a railroad company to make a running switch

without warning at a village crossing. (Brown uv, NV. Y. Cent. R. R. Co., 32
N. Y., 597+)

(575) It is negligent to allow. an engine to be run at street crossings in
charge of a fireman only. (O'Mara v, Hudson Riv. R, R. Co., 38M. Y., 445.)
568 Cases CODIFIED. (Cuap. IT.

 

(576) It is not negligent for a railroad company to allow its locomotive to
to be run by a fireman alone, if he is competent. (Prendegastv. N. Y. C.
& H.R. R. R. Co., 58 NV. Y., 652. Not a crossing case.)

(577) The failure of a railroad company to ring a bell on a backing train
at any other place than its locomotive is not’negligence. (Grippenv. NV. Y.
Central R. R. Co., 40 N. Y., 34+)

(578) A railroad company owes no duty to travellers on country roads to
tun its trains slowly at crossings. (Warnerv. N. Y. Cent. R. R. Co., 44 N.
Y., 465.)

(579) Ifthesituation at a crossing is such that ringing the bell and sounding
the whistle are not sufficient to warn travellers of an approaching train, the
railroad company must adopt other precautions. (Richardson v. N. Y. Cent.
R. R. Co., 45 WV. Y., 846.)

(580) To start up suddenly, without warning, a train slowly moving
through a public street at night without a light, is negligence. (Maginnis v.
NYC. & AR. R.R. Co., 52 N. ¥., 215.)

(581) To backatrain through a public street at night without putting a light
at the rear, or giving some warning of its movement, is negligence. (J/d.)

(582) A railroad company is not bound to take precautions by which
persons at its crossings shall be prevented from crossing when trains are
approaching. (Weberv. VN. V.C.& H.R. R.R.Co., 58 NV. Y., 451.)

(583) A railroad company is not bound to exercise the’ utmost care and
diligence and use all the means and measures of precaution, which the
highest prudence can suggest and which are in its power to employ, to
prevent injuries to persons at its crossings. (/d.)

(584) Where an ordinance forbids blowing of whistles on locomotives
within a city’s limits, a railroad company is under no obligation to warn
travellers at street crossings in any other way than by ringing the bell.
(Culhanev.N.V.C.& H.R. R. R. Co., 60 M. ¥., 133.)

(585) The omission to sound the statutory signals when a train is eighty
rods from a crossing renders the railroad company liable for the injuries
resulting to a traveller from his horse’s fright at a train appearing at the
crossing unannounced.

Or,

The frightening of horses at railroad crossings by the sudden appearance
of trains urfannounced is one of the mischiefs intended to be prevented by
the requirement that the train must announce its coming by signals eighty
rods off. (Voak v. North. Cent. R. R. Co. 75 N. Y., 320.)

See Schwier v. N. Y.C.& A. R. R. R. Co., 90 XN. ¥., 558, chap. VII,
Evidence, s#b nom., Inferences.

(586) When a train is backing down upon a crossing, and no employee is
at the rear, ringing the bell on the engine at the other end is not sufficient
notice of its approach. (Barry v. VM. V.C.& H.R, R. R. Co.,92 NV. Y., 289.)

(587) Notwithstanding the fact that the statutory signals to be given by trains
approaching crossings are in fact given, a railroad company must not run
Caus. NEG. ] Cases CoDIFIED. 569

 

its trains at improper rates of speed in thickly populated districts. (Thompson
uN. YC. & HR. R. R. Co, 110 N. Y., 636.)

(588) The fact that a place, where the public cross a railroad track laid
along a street and fenced in, is enveloped in smoke, imposes no duty upon
the company to give warning of an approaching train. (Heaney v, Long Isl.
RR. Co., 112 NM. Y., 122.)

(589) Trains must approach public crossings with due care, whether there
is any statute in existence regulating such approach or not. (Lewis v. WV.
Y. Lake Erie S W. R. R. Co., 123 NV. Y., 496.)

(590) By reason of the repeal of the provisions of the several railroad acts
requiring railroad companies to blow whistles and ring bells at highway
crossings, it is no longer negligence fer se for them to omit to do so.
(Vandewater v. N.Y. & N. E.R. R. Co., 135 N. Y., 583-)

(2) What is a Public Crossing.

(591) A farm road recently changed by the public authorities into a high-
way, is nota ‘‘travelled public road’? within the meaning of the act requiring
railroad companies on approaching such to ring bells and sound whistles,
where the provisions of chap. 62 of the laws of 1853 as to notice to the
company of such change have not been complied with. (Cordell v. M. Y.
Cent. & H.R. R. R. Co., 64. N. Y., 535-)

(592) Analley, unused by the public for travelling across a railroad-track,
is not a travelled public street within the meaning of the railroad act
requiring signals to be given at crossings thereof. (Byrnev. N. V.C.& A.
KR. RR. Co., 94M. Y., 12.)

(593) A railroad crossing on a road which has been travelled by the public
for twenty years, and kept in repair or taken in charge by the public author-
ities, isa public crossing. (Lewis v. NV. Y. Lake Erie& W. R. R. Co., 123
N. Y¥., 496.)

(3) Of Trains at Private Crossings.

(See Title 1V, Owners of Prop. sub nom., Railroads.)

(4) Flagmen.

(594) The omission of a railroad company to station a flagman at a cross-
ing is not in itself negligence. (Beisegelv. NV. Y. Central R. R. Co., 34 N.
Y., 622. 40M. Y., 9.)

(595) Where a flagman is stationed by a railroad company at acrossing to
warn travellers of approaching trains, his omission to properly perform such
_ duty is imputable to the company as negligence. (Dolan v. Del. & Hud.
Can, Co., 71 N. Y., 285.)
(596) A railroad company. owes no duty to the public to station a flagman
atacrossing. (Houghkirk v. Del. & Hud, C. Co.,92 N. Y., 219.)

(597) If a railroad company does station a flagman at its crossing it is
answerable for his neglect to warn travellers of trains. (A‘ssingerv. N. Y.
& H.R. R. Co., 56 NM. Y., 538.)
570 Cases CopIFIED, [Cuap, II.

 

(5) Gates.

(598) When a railroad company has gates at its crossings, it must operate
them so as not to injure persons properly passing through them, (Feeney
v. Long Isl. R. R. Co., 6M. ¥., 375:)

*

(599) The mere request by municipal authorities to a railroad company to
erect gates at street crossings imposes, under Laws of 1884, chap. 439, no
duty on the company to doso. (Daniels v. Staten Isl, Kk. 7. KR. R, Cov, 125,
MV. Y., 407.)

(6) Miscellaneous.

(600) A railroad company is under no obligation to the public to prevent
minute cinders from escaping from its locomotives, even though it runs
them in the public streets of a crowded city. (Wiedmer v. N. Y. Elev. BR. BR.
Co, 114 MV. Y., 462.)

(Of Street-Cars.)

(601) It is negligent for a driver of a carin a city street to turn his back to.
the track ahead. (Alentz v. Second Ave, R. R, Co., 3 Abb. C. A, D., 274.)

(602) If a person crossing a track ahead of a car falls on the track, the driver
must use the greatest care to avoid injuring him, (/d,)

(603) A driver of a horse-car is not obliged to keep a constant watch on
each side of the car so as to see that no one is injured by a lateral collision.
(Bulger v, Albany Ky. Co., 42 N. Y., 459-)

(604) A street-car company is no more bound than any other owner of
vehicles to adopt in the construction of its cars the best methods which
human skill and ingenuity have brought into use to prevent accidents to
pedestrians, (Unger v. 42d and Gr. St, FL A. KR. Co, 51M ¥., 497.)

(605) Ifa driver of a vehicle can, by stopping it, avoid doing an injury to
a person crossing the street in front of it, he is bound to stop, (7hurdr wv,
Harlem B, M.& F, RR, Co. 60 NM. Y., 326.)

(606) A street-car must not be carelessly driven against a vehicle which has
been running ahead of the car on the track, and is being driven off to give
it the right of way. (Fleckenstein v. Dry Dock, Z. B, & B, R. RK. Co., 105,
N. Y., 655.) :

(607) A sffeet-car company must so arrange its cars as to allow reasonable
opportunity for persons to cross the street. (J/cClain v. Brooklyn City K. RB.
Co,, 116 MV. Y., 459.)

(608) A person who, on reaching an obstruction in a street, stops his.
vehicle to see whether he can pass it, it not being clear whether he can,
spends a moment in examining it with aid of others, and on being signalled
by one of them to go on, does so slowly, does what any other man woukt
have done, and negligence can not be predicated of his act because his
vehicle does happen to hit the obstruction. (Schmidt v, Ste(nway G» Hunters
Point R, Co., 132 N. Y., 566.)
Caus. NE«. ] CasEs CopIFIED. 571

 

(Of other Vehicles.)

(609) It is the duty of the driver of a vehicle in a city street to keep his
attention on the street in front of him. (Bahkrendurgh v. Bkiyn City H. P. &
PLP. RR. Co., 56.N. Y., 652.)

(610) Drivers of vehicles are bound to look out for foot-passengers at
cross-walks. (Murphy v. Orr, 96 N. Y., 14.)

(611) A person conveying anything in a wagon in a city street, which
projects out at the rear, is bound, on turning, to see that it does not sweep
against a passer-by. (Sheehy v. Burger, 62 N. Y., 558.)

See Groth v,. Washburn, 89 N. Y., 615.

(Of Animats.)

(612) It is negligent to leave horses unfastened in a public street. (Morris
v. Kohler, 41 N. Y., 42.)

(613) It is not negligent to lead through the streets a cow, which is not
known by her owner to be vicious or unruly. (Moynahan v. Wheeler, 117
NV. Y., 285.)

(Driving rapidly.)

(614) It is negligence to drive a vehicle into a street around a corner at a
rapid rate of speed. ( Fetter v. NV. Y. & Har. R. R. Co., 2 Abb. C. A. D., 458.
S.C. 2 Keyes, 154.)

(615) To drive suddenly and rapidly into a street without looking to see if
any one is crossing it, is negligent. (Phelps v. Wait, 30 N. V., 78.)

(616) It is negligent for a person to drive rapidly along a street without
looking out for passers-by. (Sheehan v. Edgar, 58 N. Y., 631.)

(6t7) Itis not negligent to drive a team at a lively trot in a city street.
(Crocker v. Knickerbocker Ice Co., 92 NV. Y., 652.)

(618) A driver of a vehicle must not drive at a rapid rate through a crowd
of children within a few feet of a wall along a street where there is no side-
walk. (Barrett v. Smith, 128 MN. Y., 607.)

(Driving on Sidewalks.)

(619) Driving rapidly on sidewalks is notallowable. (Coulter v. Am, Merch.
Un. Ex. Co., 56M. Y., 585.)

(620) Under an ordinance allowing vehicles to occupy sidewalks for busi-
ness purposes, the animal by which it is drawn is included. (Merritt v.
Fitzgibbons, 102 N. Y., 362.)

(Of Vessels.)

(621) Navigators are not required to use the utmost possible care to avoid
collisions at sea, but to use the care which the circumstances reasonably
require. (Kelsey v. Barney, 12 N. V., 425.)

(622) Supposition of a change of a channel is not sufficient to excuse an
attempt to pass on one side when the channel really requires passage to be
made on the other. (dustin v. NM. F. Steamboat Co., 43 N. Y., 75.)
572 Caszs CoDIFIED. [Cuap. IT.

 

(623) Steamboats must keep clear of drifting vessels, as well as those sailing
oratanchor. (Parrott v. Knickerbocker Ice Co., 46N. Y., 361.)

(624) The failure of one traveiler to follow a law of the road does not justify
another traveller for an omission to do what he can to avoid an expectable
collision. (Hofmann v. Union Ferry Co.,47 N. Y., 176. Silliman v. Lewis,
49 NV. Y., 379. Whitehall Transp. Co.v. N. F. Steamb. Co., 51 MN. Y., 369.
Delafield v. Union Ferry Co., 51 N. Y., 671.)

(625) It is negligent for one vessel to attempt to pass another in a manner
not allowed by the authorized rules of navigation. (Zrvin vu. Neversink St,
Co., 88 NV. ¥., 184.)

(626) The failure of a steam vessel to keep out of the way ofa sailing
vessel, if she can, is negligence. (Matllerv. Exp. Propell. Line, 61 N. Y.,
312.)

(627) The amount of care which a steamboat with a tow meeting another
steamboat with a tow is bound to observe toward both tows is more than a
mere blind obedience to the general rules of navigation. (Cooper v. Eastern
Transp, Co., 75 N. Y., 116.)

(628) If a steam yacht is navigating a river under a coasting license, she
must carry the lights prescribed for coasting vessels. (Chase v. Belden, 104.
N. Y., 86.)

(Of Rafts.)
See Town of Pierrepont v. Loveless, 72 N. Y., 211, supra, sub, nom, What are
Highways.

Cross REFERENCES.

See Tit. I, The State, Tit. II, Municipalities, Tit. III, Pub.
Officers, in this Chap.; also Art. IV, Owners, in this Tit., also
Chap. III, Cont. Neg.; also chapters on Ques. of Fact, Defenses,
Damages, Evidence.

(Chap. IT, Tit. [V—Continued. )

ARTICLE IV.—OwneErs oF REAL PROPERTY.
INCLUDING LESSEES AND LICENSEES.

§ 126. It is the duty of owners of real property, municipal as
well as private, to keep their premises in such condition as that
they shall not be the cause of injury to neighbours’ property in

ways that common prudence should foresee.
Or, Sic utere tuo, ut alienum non laedas,
Caus. Nes. | Caszs CopIFIED. 573

 

§ 127. The measure of duty which an owner of real property
who allows his premises to be resorted to by the public, or lets
them for that purpose, owes to the public to have them safe for
public resort, is not yet settled in this state.

§ 128. If anowner of private premises, expressly or impliedly
invites another upon them, such owner owes a duty to him to
see that he shall not be injured through any danger concealed
from or not expectable by him.

§ 129. Landlords, who let their premises to tenants in good
order, are not responsible for the damages resulting to third
persons from the neglect of their tenants to keep them so, in
the absence of an agreement that the landlord shall make
repairs.

§ 130. Landlords, who let their premises to tenants in bad
order, are responsible for damages resulting therefrom to third
persons, without regard to the obligation between them and
their tenants as to which shall make repairs.

§ 131. A landlord must not rent a house infected with a
contagious disease, without informing the tenant thereof.

§ 132. Landlords, who rent apartments in houses, must keep
the hallways and stairways in good condition for safe passage
and provide and maintain fire-escapes safe for the purpose of
escape from fire.

§ 133. Owners of apartment houses, who for tenants’ con-
venience provide devices of such a kind that negligent use of
them by tenants converts them into nuisances in the highway,
are responsible as for nuisance to passers-by for the conse-
quences of such negligent use by tenants.

§ 134. The duties of lessees in regard to real property leased
to them are:
(1) As to each other, those of neighbours.
(2) As to their landlords, those which arise out of the
contract of letting.
(3) As to third persons, those of owners of the prop-
erty, as to everything within their control.

§ 135. The duties of abutters on the highway are:
(1) They must guard all excavations on their own
premises which are near the highway.
574 Cases CopIriED. [Cuap. II

 

(2) They must not interfere with the highway in front
of their premises, except under due permit from the proper
municipal authorities.

(3) They must prevent anything falling from their
premises upon passers-by.

(4) They must make safe, and keep in good repair, any
flagging, planking or other material which they may
have used to facilitate passage along the sidewalk.

§ 136. An abutter is not responsible to a passer-by for any
damages resulting from the condition of his sidewalk, unless
that condition is the result of his active interference with the
sidewalk.

§ 137. An abutter is not responsible to the municipality for
the condition of his sidewalk, beyond the fine which it imposes
upon him for his failure to obey its ordinances,

§ 138. In addition to the general rule stated in the first section
of this article, neighbours are under the following special duties
to each other for the violation of which they are responsible in
damages, without regard to their negligence:

(1) To erect division fences.

(2) To keep their cattle from straying.

(3) To guard excavations near division lines, in a case
mentioned in the Excavation Act.

(4) When blasting or digging, to keep missiles from
flying, or earth from sliding, on another's land.

(5) When collecting water in large quantities, to see
that it does not escape so as to injure the property of
others.

(6) When collecting surface water, not to allow it to
drain on to a neighbour's land, or into a stream beyond
its natural capacity to carry it off.

(7) Neither to divert water courses, nor use the water
thereof so as to materially deplete the stream.

§ 139. When one of two neighbours is a railroad company,
the duty of erecting division fences, which in other cases rests
upon both, is exclusively upon the company as to all lands
along its tracks.

§ 140. Railroad companies must also maintain cattle-guards
at highway crossings, and necessary farm gates in their fences.
Caus, Nk. ] Cases CopIFIED. 573.

 

§141._ The duty of a railroad company to fence its tracks is
a duty which is owing to all owners of animals,whether owners
of adjoining land-or not, but it is not a duty to any one except
an owner of an animal, or its own servant, or a passenger.

§ 142. An owner of land in kindling a fire on it must be
careful not to allow it to spread to his neighbour's land.

§ 143. Anowner of land owes no duty of care to a trespasser
upon it, man or animal, except under the statute as to fencing.

§ 144. A person who goes on to another's land for the purpose
of saving life is not a trespasser.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS:

1st.—References to Statutes.

2nd.—Quasi Public Premises,

Piers, Docks, Wharves. | Thoroughfares, Halls, &c.

3d.—Private Premises.

As Abutters on Highways. As to Persons coming on,
Obstructions of. By Invitation or Permission.
Excavations in. Crossing Railroads.

se near, Without Permission.
Sidewalks. As to Animals.

As Neighbours. Questions growing out of relation
Fences, of Land. and Ten,

Fires. Lessors.

Blasting. Lessees.
Digging near Line. Remainder men.
Water, flooding, draining, &c. Licensees,

««  disch. into streams, Under Civ. Dam, Act.
Streams. Miscellaneous,

References to Statutes.

(629) The statutory duties and rights of abutters in regard to sidewalks
are sufficiently disclosed in the cases given below, for the purposes of this.
work. (For specific statutes see 7he Highway Law of 1890, also Birdseye’s
Rev, Stat. sub. nom, Highways, also Sidewalks.)

(630) Each of the adjoining owners of land ‘shall make and maintain a
just and equitable portion of the division fence between them ”’ in all cases.
where each of such adjoining lands shall be cleared or improved. (Zhe
Town Law of 1890, § 100, 1 Rev. Stat. 353, § 30, as am. see Birdseye’s Ed.
1155-)

(6302) As to duties under Building Laws, see Chap. X.
576 Cases CopImFIED. (Cuap. IT.

 

(631) Where an adjoining owner is a pipe-line company, it need not fence
its lands, but if it does not, it has not all the rights of an owner of land
against trespassers, (Laws of 1878, chap. 203,§35, and see Birdseye's Stat,
sub, nom., Pipe Line Co’s, 2227.)

(632) Where an adjoining owner is a railroad company, it must fence, on
both sides of its track at its own expense, and maintain gates at farm cross-
ings and cattle-guards at road crossings, except where the owner of the
adjoining land has received a sum of money as compensation for fencing,
but if he fails to erecta fence, the company must. (Laws of 1850, chap. 140,
$44. Laws of 1854, chap 282, §§ 8,9. The Railroad Law, Laws of 1890, chap.
565, § 32, am. by Laws of 1891, chap. 367, and by Laws of 1892, chap. 676.)

(633) Lessees of railroads must maintain fences. (Laws of 1864, chap. 582,
§2. The Railroad Law, § 32.)

(634) ‘*A person who negligently sets fire to his own woods, by means
whereof the property of another is endangered, or who negligently suffers
any fire upon his own land to extend beyond the limits thereof is guilty of
a misdemeanor.” (Penal Code § 413, see also Birdseye’s Stat. sub nom., Fires.)

(635) Where, in a city, a person in excavating on his own land digs more
than ten feet below the curb, he must support his neighbour’s house, if
given the necessary license to do so by his neighbour. (Zaws of 1855,
chap. 6.)

(636) An owner of land who lets his land knowing that liquor is to be sold
thereon by his tenant is answerable for the damages resulting from the
intoxication of a person to whom liquor is given or sold on such premises.
{Civil Damage Act. See chap. X, Miscell. Subj. sub. nom., Civ. Dam. Act.)

(637) Notice not to sell liquor to a person is now a condition precedent to
a cause of action to recover damages resulting from his intoxication. (Zx-
cise Law of 1892, § 40; also, Laws of 1892, chap. 401, § 2.)

(638) Persons who furnish scaffolds or ladders for work on their buildings,

must see that they are safe. (Laws of 1885, chap. 314, am. by Laws of 1891,
chap, 214.) See also Chap. X, sub. nom., Statutory Causes.
QUAS) PUBLIC PREMISES,

Piers, Docks, Wharves.

(639) A lessee of a pier, who agrees to keep it in a safe condition, is liable
for the damages resulting to any one on the pier from its unsafe condition.
(Radway v. Briggs, 37 N. Y., 256.)

(640) An owner of a public pier owes a duty to the public not to let it in
an unsafe condition. (Swords v. Edgar, 59 N. Y., 28.)

(641) Where the legislature directs the common council of a city to rebuild
at the city’s expense a dock to a waterway which does not appear to be a
public highway, which had been negligently constructed by commissioners
appointed by the Legislature, the municipality is not liable for the damages
sustained by an adjacent property owner by reason of the failure of the
‘common council to rebuild such dock. (MV. V. & B’hlyn S. & L. Co. v. City
of Bklyn, 71 N. Y., 580.)

_ (642) A pier owner must have string-pieces on his pier to protect restive
as well as docile horses. (Kennedy v. The Mayor &c. of N. V., 73 N. Y., 365.)
Caus. Nxc. ] Cases CoDIFIED. 577

 

(643) The owner of a pier is not liable for damages resulting from an
obstruction to navigation by one of its spiles falling away from it, in the.
absence of notice that such obstruction exists. (Seaman v. The Mayor, 80
NV. Y., 239.)

(644) A dock owner, who knows that at low tide the bottom is dangerous
for the mooring of vessels at one part of his dock, must inform, a person
lawfully mooring at its dock of the danger. (Barber v. Abendroth, 102 N. Y.,406.)

(645) As to liability of pier owner for unsafe door. (Mewal/v. Bartlett, 114
NV. Y., 399-)

(646) As to liability of remainder man for unsafe condition of pier
occurring during life estate. (Ahern v. Steele, 115 NV.Y., 203, infra, sub nom.,
Remainder-men.)

(647) If a person, who owns only part of a dock, licenses its use without
informing the licensee that he has no right to the use of the whole of it, he
owes a duty to such licensee, and the persons using the dock under him, to
see that the whole dock is safe for them. (Thomas v. Henges, 131 NV. V., 453.)

(648) The sub-lessee of a public pier is bound to maintain it in good
repair. (Oceanic Steam Nav.Co.v. Compania Transatl. Espanola, 134 N. Y.,461.)

(649) A wharfinger is only bound to use ordinary care to make the
approaches to his wharf reasonably safe.

Or,

A wharfinger is not an insurer of the safety of vessels in coming to his

wharf. (MécCaldin v. Parke, 142 NV. Y., 564.)

Thoroughfares, Halls, &c.

(650) If a person allows his premises to be used by the public as a high.
way, he is under the duty of keeping them safe for travel.
Or,

He must guard any excavations that he may make in them. (Beck v,
Carter, 68 N. Y., 283.)

(651) A person letting a hall for entertainment is bound to see that none
of the approaches to it are connected with places which are dangerous.
(Camp v. Wood, 76 N. Y., 92.)

(652) A lessor, who is ignorant of the fact that his building is unsafe for
the purpose of accomodating a crowd at an exhibition to be given by his
tenant, is not responsible to a spectator for damages resulting from the
insecurity of the building. (Zdwardsv. N. Y. & Harlem R. R. Co., 98 N.
V., 245.)

(653) The owner of a private bridge, which the public uses by his suffer-
ance, but from which use he derives no advantage, is not bound to maintain
it in safe condition. (Cusick v. Adams, 115 N. V., 55.)

PRIVATE PREMISES.
As Abutters on Highways.
(Obstructions of.)

(654) No duty rests upon a property owner who does not own the side.
walk in front of his premises to remove a nuisance thereon not created by
himself. (Zuglish v. Brennan, 60 N, Y., 609.)
578 Cases CopiFIep. (Cuap. II.

 

For other cases of obstructions by property owners see Art. III, supra
sub, nom., Obstructions.
(Excavations in.)

See Art. III, sab. nom., Excavations.
*

(Excavations Near.)

(655) The rule as to excavations on private premises near highways does
not apply to excavations on private premises near high-water mark on the
sea-shore. (Murphy v, City of Bklyn, 98 N. Y., 642.)

(656) An excavation fifty feet from a highway is not near enough to be
within the rule as to excavations on private premises near highways. (/d.)

(657) The semblance of a path leading from a highway, in the direction of
an excavation on private premises, and the absence of a cross-bar from the
fence at that point, are not sufficient to cast upon the owner a duty, which
would not otherwise exist, to guard the excavation so that persons will not
fallintoit. (Murphy v. City of Bhiyn, 118 N. Y., 575.)

(Sidewalks in General.)
(658) It is not negligent for a householder to permit water dripping from

his premises to drain over the sidewalk into the gutter. (Moore v. Gadsden,
87 NM. Y., 84.)

(659) It is not a nuisance to allow water coming from a roof through a pipe
to be discharged over the sidewalk in the absence of an ordinance
prohibiting it. (Wenzlick v. McCotter, 87 N. Y., 122,)

(660) The failure of a householder, to obey a city ordinance requiring him
to remove ice and snow from his sidewalk, does not subject him to liability
to a passer-by for damages resulting from his slipping on ice and snow left
thereon. (Moore v. Gadsden, 93 N. Y., 12.)

(661) An abutting owner is not liable to a municipality for the damage
recovered from it by a passer-by, occasioned by his neglect to keep the
sidewalk in front of his lot in repair, even though by the municipality’s
charter the duty of so doing 1s imposed upon him, (City of Rochester v.
Campbell, 123 N. Y., 405.)

(Sidewalks— Things Falling On.)
(662) An owner of premises bordering on astreet is not liable to a passer-by

for a negligent use of his property by one who is not his servant. (Stevens
uv. Armspyong, 6M. Y., 435.)

(663) Where snow and ice are shoveled off a roof on to a passer-by on the
sidewalk, the owner of the house, who has given general directions to his
servant to have the roof cleared, is answerable for the damages, whether
the actual shoveling was done by the servant or some one else at the
servant's suggestion. (Althorf v. Wolfe, 22 N. Y., 355-)

(664) The faijure of the several owners of adjoining premises to remove or
support their respective portions of a continuous front wall left standing
after a fire and evidently unsafe, render them all responsible for the damages
resulting from its fall without regard to whose wall it was which produced
the damage. (Simmons v. Everson, 124 MV. Y., 319.)
Caus. Nez. ] Cases CopIFIEp. 579

 

As Neighbours.
‘ ( Fences.)

See Clark v. Brown, 18 Wend., 213.

(665) A railroad company is not made by the statute as to fencing an
insurer of the proper condition of fences along its tracks. (Murray v. N. Y.
Cent. R. R. Co., 3 Abb. C. A. D., 339-)

(666) A statute requiring railroad companies to build and maintain gates
in the fences along their road, applies to a railroad company organized
before the statute where its charter required it to build and maintain fences,
though silent as to its building gates. (Staats v. Hud. Riv. R. R. Co., 4 Abo.
C. A. D., 287.)

(667) The meaning of the railroad act as to fencing, requiring railroad
companies to maintain fences of the height and strength of a division fence
required by law, is that they shall maintain them of sufficient height and
strength to prevent cattle getting on their tracks. (Zall/manv. Syr., B. &
NV. Y. RR. Co., 4 Abb. C. A. Dz, 351.)

(668) Under the act the duty to maintain fences and cattle-guards is due
to every owner of cattle whether an adjoining owner or not. (Corwin v. N.
Y. & Erie R. R. Co., 13 N. Y.. 42.)

(669) A contract between a railroad company and an adjoining owner in
regard to its maintaining fences along its track does not,in the absence of
an express agreement, relieve the company from the requirements of the
statute on the subject. (Polerv. NV. Y. Cent. R. R. Co., 16 N. Y., 476.)

(670) The statute requiring railroad companies to maintain cattle-guards
‘at road crossings’? was intended to include streets as well as roads.
(Brace v. N. Y. Cent. R. R. Co., 27 N.Y, 269.)

(671) The fact that a railroad company has removed a cattle-guard at a
street in deference to complaints of citizens against it as a nuisance, is no
defence to an action under the statute to recover damages resulting from a
failure to maintain such guardin compliance therewith. (/d.)

(672) The convenience of the public in resorting to its depot is no reason
why a railroad company should omit at a road crossing near its depot to
comply with the statute as to maintaining cattle-guards. (Bradley v. Buff.,
N.Y. & E.R. R. Co., 34. NV. Y., 427.)

(673) Acceptance from a railroad of its covenant to fence one side of its
road is not a release of the obligation under the statute to fence the other
side. (Shepard v. Buff., N.Y. & E.R. R. Co., 35 N. Y¥., 641.)

(674) The release of one railroad company from its obligation under one
statute to maintain one-half of a division fence, does not operate in favor of
another. company, whose track parallels the first one, from its obligation
under a subsequent statute to maintain the whole fence. (/7.)

(675) Rule in Shepard case, 35 N. Y., 641, as to liability of parallel roads
in regard to fencing re-affirmed, (Kelver v. N. Y., Chic, & St. L. R. R. Co.,
126 XV. Y., 365.)

(676) An act requiring a railroad company to: maintain a fence along its
tracks, and by its terms applicable to existing railroads where not incon-
sistent with their charters, does not impose a liability on a railroad
580 CasEs CoDIFIED. [Cuap. IT.

 

company to maintain a fence at places where its road is constructed in a
river, if a clause relieving it to that extent is in its charter. (Schermerhorn
v. Hud. R. R. R. Co., 38 N. Y., 103.)

(677) Arailroad company operating another road is bound to see that
fences and guards are erected along it. (Zracy v. Troy & Boston R. R. Co.,
38M. ¥., 433-)

(678) A railroad company is not bound to fence against children. (Pren-
degast v. N.Y. C. & H.R. RR. Co., 58 NV. Y., 652.)

(679) Ifa foreign railroad corporation extends its track into this state,
it must fence it in obedience to the requirements of our statute. (Purdy v.
N.Y. & New Hav. R. R. Co., 61 M. V., 353-)

(680) The grant to a railroad company of a strip of land through a farm,
for purposes of its road without reservation or exception, is not a waiver of
its statutory obligations to maintain a farm crossing. (Smithu. NV. Y. &
Osw. Mid. R. R. Co., 63 N. Y., 58.)

(681) Where a farm gate, erected by a railroad company under the statute
to enable a farmer to pass to a portion of his farm beyond the tracks, is used
during the day by the company and its customers for its and their
convenience, the company must see that it is closed when the day’s
business is done. (Spimnerv. N.Y.C.& H.R. R. R. Co., 67 N. Y., 153.)

(682) The provisions of the general railroad act as to fencing were not
intended for the protection of travellers along adjacent highways. (Ditchett
v. Spuyten Duyvil & P. M. R. R. Co., 67 N. Y., 425.)

(683) The failure of a railroad company to maintain its fences along its
tracks as required by the statutes (of 1850, chap. 140, and 1854, chap, 282)
does not render it liable for injuries which animals may do to themselves by
straying onits tracks. (Anight v.N. Y.,Lake Erie & W.R.R.Co., 99 WV. Y.,25.)

(684) The statute as to fencing by railroad companies does not apply to a
case where an open space in front of a building near the track has been left
unfenced, under agreement between the company and the owner of the
building, so that access may be had toit. (Dolan v. Newburgh D. & C. R.
KR, Co., 120 N. Y., 571.)

(685) Where a verdict for the killing by an engine of horses, which had
strayed on a track through a broken fence, had been set aside by the
Gen. Term on a question of fact, its order was affirmed with judgment abso-
jute against Pjaintiff, the court holding that there was no error of law at the
trial, that there was no evidence that the horses were killed by the reckless,
wanton, or malicious conduct of deft’s engineer, and hence there was no
basis for a recovery. (Boyle v. N. Y., Lake Erie & W.R.R. Co., 115 MN.
Y., 636.)

(Fires.)

(686) A railroad company is. bound to use the utmost care to prevent
sparks from its locomotives setting fire to houses in villages along its
tracks. (Ferov. The Buff. & State Line R. R. Co., 22 N. Y., 209.)

See Hinds v. Barton, 25 N. Y., 544, Chap. VII, Evidence, sud. nom., Other
Acts.
Caus. Nuc. } Cases CopIFIED. 581

 

(687) In a populous city one neighbour is not liable to another for the
consequences of a fire communicated to the latter ‘house from that of the
former, even though the first fire was the result of negligence, (Ryan v. N.
Y, Cent. R. R. Co., 35 N. Y., 210.)

(688) A negligent fire is not an accidental fire within the meaning of the
statutes of Anne and George as to accidental fires. (Webb v. Rome, W. &
Og. R. R. Co., 49 N. Y., 420.) ;

(689) Railroad companies must have spark arresters on their dummy
engines as well as on other locomotives. (Bedell v. Long [sland Rh. R. Co.,
.44 WV. Y., 367.)-

(690) A person who burns his fallow land in a negligent manner is liable
for the damages resulting to a neighbor from the fire spreading to the
latter’s land. (Hays v. Miller, 70 N. Y., 112.)

(691) A person who negligently allows sparks to escape from a stove-pipe
erected in violation of a city ordinance, whereby a neighbor’s house near
by is set on fire, is liable for the damages. (Briggs v. N.Y. C.& A. R. RP.
R. Co., 72 N. Y., 26.)

See Ferguson v. Hubbell, 97 N.Y., 507, Art. I., Masters sa, 20m., Resp. Sup.

(692) It is negligent for a railroad company to allow dry brush and other
combustible material, easily set on fire by sparks from its engines, to
accumulate along its tracks. (O'Neill v. N. Y., 0. & W. RR. Co., 115 MN.
Y., 579.)

(693) The ground on which a railroad company is to be held liable for the
burning of a neighbour’s house by fire, communicated by sparks from its
passing engines, is negligence in not preventing their escape by means of
the best mechanical contrivances in known practical use. (Flinn v. NV. Y.
C. & H.R. R. R. Co., 142 N. Y., 14.)

(694) A railroad company is not bound to adopt new contrivances to
prevent the escape of sparks from its engines until it has had time for trial
and experiment as to their excellence. (/d.} k

(695) In determining whether a railroad company is negligent in not
placing on its engines as rapidly as it ought to do, after it has concluded to
adopt it, a new contrivance to prevent the escape of sparks, regard must be
paid to expense, convenience, the operation of its road, and other matters
connected with such a change. (/d.)

(Blasting.)

(696) An owner of land is responsible for the injury done to a neighbour’s

property by stones being thrown upon it by blasting, irrespective of the

question whether the blasting was done negligently. (Huy v, The Cohoes
Co.,2 NV. Y.,159. Seealso Tremain v. Same, 2 N. Y., 163.)

(697) It is the duty of a person blasting on his own land to give warning
to passers-by. (Driscoll v. Newark & Rosendale L. & C. Co., 37 N. ¥., 637-)

(698) A person setting off a blast is bound, either to adopt such precautions
as will prevent missiles from reaching a person lawfully pursuing his
business on adjoining premises, or to give him timely notice to enable him
toescape. (S¢. Peter v. Denison, 58 N. Y., 416.)
582 Cases CoDIFIED. (Cuap. IT.

 

(699) Where a contract, necessitating blasting in its performance, contains
a clause that the contractor is to pay all damages from blasting, the other
party is not responsible for the damages resulting to a neighbour’s property
from negligent blasting. (McCafferty v. Spuyten Duyvil & P. M. RR. Co.,
61 MN. Y., 178.) .

(700) It is negligent to place dynamite cartridges in contact with hot
steam-pipes. (Collins v. Farley, 100 N. Y., 620.)

%

(7o1) A person is not answerable to his neighbour for damage resulting to
the neighbour's house from blasting on his own premises, where he uses due
care, the blasting is necessary to effect what he wishes to accomplish and
no missiles are thrown upon the neighbour’s premises,

Or, /

Damage done to a neighbour’s house by the jarring of the ground o
concussion of air, due to blasting, carefully done on adjoining premises, is
damnum absque injuria. (Booth v. Rome, Water. & Og. R. RK, Co. 140. N. ¥.,
267.)

(702) Where damage done to adjoining property by blasting, is the result
merely of shaking of the earth or pulsations of the air, and not by casting
anything on it, the person blasting is not responsible thereforin the absence
of negligence. (Benner v. Atlantic Dredging Co., 134 N. Y., 156.)

(703) As to admissibility of agreement with contractor for blasting, see
Chap. VIL., Evid. (Aoemer uv, Striker, 142 NV. Y, 134.)

(Digging Near Division Line.)

(704) A person in taking away a hill on his own lot must not do it so
negligently that it will slide on to his neighbour’s lot. (Gardner v. Heart,
iM. Y., 528.)

(705) Where a municipality, in grading a street, does so carefully, itisnot
liable for the damages sustained by an adjoining owner from his land
sliding into the street. (Radcliffe’s Ex’r v. The Mayor, 4 N. Y., 195; and see
Folmsbee v, City of Amsterd, 142 N. Y., 118.)

(706) An owner of land, when making an excavation on it, owes a duty to
the adjoining owner to make it in a careful manner. (Austin v. Hudson
River R. R. Co., 25 NM. Y., 334.) |

(707) A lessee, injured by a negligent excavation on adjoining land,
may recover the resulting damages, (/d.)

(708) Utider chap. 6, of Laws of 1855, it is not the duty of a person, whose
wallis endangered by an excavation on his neighbour’s lot more than ten
feet below the curb, to tender to his neighbour the license therein provided
for, but it is the duty of his neighbour to apply for it. (Dorrity v. Rapp,
72 N. Y., 307.) '

(709) As between the owner of a lot, on which an excavation more than
ten feet below the curb is being made, and his contractor, the duty rests
upon the owner to make application to his neighbour for the license provided
for by chap. 6, Laws of 1855. (/d.)

As to grading streets, see Tit. IJ, Municipalities.
Caus. NEe. | CasEs CopIFIED. 583

 

(Pater —Flooding or Draining on Land.)

(710) Ifa person collects water in a large body on his own land, he is
responsible fox thedamage to a neighbour’s property if it escapes in a flood.
{Mayor v. Bailey, 2 Den., 433.)

(711) If a city grants land under water with the privilege of filling it in, it
must not construct adjacent sewersso as to wash away the earthso filledin.
(Duryea v. The Mayor, 62 N. Y., 592.)

(712) An owner of a city lot is not bound to connect it with the sewer so as
to prevent its natural drainage on to his neighbour's lot. (Vanderwiele v.
Taylor, 65 N. Y., 341.)

(713) A person, who does anything on his own premises, which results in
accumulating water thereon, must take steps to preventsuch accumulation
from draining on to his neighbour's land. ( Futte v. Hugh.s, 67 N. Y., 267.)

(714) A permit to make an excavation in a street does not protect the
excavator from liability to an adjoining owner for damages from water cast
upon his premises by reason of the excavation, even though he was not
guilty of any negligence. (Marrs v. Manhattan R. &. Assoc., 89 NV. Y., 498.)

(715) Thecollecting of a large body of water into a reservoir having a
porous and gravelly soil, without taking adequate precaution to keep it from
percolating into an adjoining owner’s property, is an act of negligence.
(Reed v, The State, 108 N. Y., 4073 see also Heacock v. Same, 105 NV. Y., 246.)

(716) As to water collected by a municipality in mains, (Henney v. City of
Brooklyn, 120 AN’. Y., 164.)

(Vater—Drainage into Streams.)

(717) An owner of land upon a water course may by means of ditches
collect the surface water on his premises and discharge it into the stream.
{Waffle v. N.Y. Cent. R. R. Co., 53 N. Y., 11.)

(718) An owner of land upon a water course may not collect the surface
water on his premises and discharge it into the stream, when by so doing it
will be filled beyond its natural capacity. (Noonan v. Cily of Albany, 79

NV. Y., 470.)
See also Chipman v. falmer, 77 N. Y., 51, Chap. VIL, Damages.

(Streams—Interference With.)

(719) Railroad companies must not build their bridges across rivers so as
to cast upon neighbouring land the water or ice ‘of expectable freshets,
(Brown v. Mohawk & H. R. R. Co,, 1 How. App. Cas,, 66, and see page 52.)

(720) A railroad company in bridging streams under legislative authority
must do so carefully so as not to cause the water to overflow. (brown v.
Cayuga & S. R. R. Co., 12 N. Y., 486.)

(721) A railroad company succeeding to the rights and road of a former
company, which has negligently bridged a stream so asto cause the water
to overflow, is responsible for maintaining the nuisance. (/d.)

(722) Where a person interferes with a water course, under authority of
law, he is not responsible for the resulting damages unless he commits a
fault in the manner of doing it. (Bellinger v. N.Y. Central R. R. Co., 23
N. Y.,42, Selden v. Del. & Hud. Can. Co., 29 NV. ¥., 634.)
584 Cases CODIFIED. (Cuap. Il.

 

(723) A railroad company which, in the construction of its road,
necessarily diverts a stream of water from its natural channel, owes a duty
to adjoining owners to restore the stream to, and preserve it in its former
state of usefulness as nearly as practicable without burdening them with the
expense of its preservation. (Cott v. Lewtston R. R. Co., 36 WV. V., 214.)

(724) A railroad company is not liable for damages to an adjoining pro-
prietor resulting from the overflow of the water of a stream caused by the
necessary and proper elevation of its road-bed not in the channel of the
stream, but upon its own land. (Moyer v. NV. Y. C. & H.R. R. R. Co., 88
M. ¥., 351.)

(725) Where the bed of a stream is interfered with by a contractor, under
contract with its owner, in a manner intended to: be temporary and not
intended to be unlawful, and the result is not only a temporary diminution of
a neighbour’s water supply, butits permanent loss through an underground
drainage which, though not expectable, was the result of such interference,
the contractor is not liable for the damages resulting from such permanent
loss, but only for the injury sustained during the temporary interruption
of the flow of the stream. (Covert v. Cranford, 141 NM. Y., 521.)

The general rule of liability of an owner for permanent damages, is
recognized in the case just cited, and substantially reaflirmed, hence its.
insertion in this article.

See also Tit. L, TheState. Sus. xom., Diverting Water of Streams.

As to Persons Coming On.
; (By Invitation or Permission, )

(726) Asto burden of proof in case of person found dead on another's
land, see Curran v. Warren Chem, Mfg. Co., 36 N. Y., 153, Chap. VIL.,
Evid., sab. nom., Burden of Proof.

(727) When a person is engaged in transferring freight from acar on aside-
track to his wagon at a spot designated by the company’s agent, the company
owes him a duty not to run a locomotive on an adjacent side-track, if near
enough to frighten his horses. (Mewsonv. M. Y. Central R. R. Co., 29 N.Y,
383.)

(728) A common carrier owes to a shipper, while in the act of loading a
car, the duty not to move the car without warning. (Stinson v. NV. Y. Cent.
R. R. Co., 32M. Y., 333.)

(729) A keeper of a boarding-house owes a duty to his boarders to keep
the appr@aches to the rear part of the house safe for them to pass over, if
they cannot get in by the customary door. (Fiske v. Bailey, 51 N. Y., 150.)

(730) A mill owner owes a duty to persons lawfully on his premises to
have the mill and its appliances reasonably safe. (Ackert v. Lansing, 59
XN. Y., 646.)

(731) An owner of land is under no duty to persons, who enter his
premises by entrances through which he does not invite them, to have
excavations in them guarded,

Or,

Though a person may enter private premises on business by

permission, yet if he enter through forbidden entrances and by reason
Caus. NEG. ] Casrs CopiFIEp. 585

thereof falls into an excavation, a recovery may not be had for the resulting
damages.
Or,

A man has the right to decide how other persons may enter his
premises, and he need only make them safe for those who enter as he
directs. (Victory v, Baker, 67 N. Y., 366.)

(732) An owner of premises, inviting another upon them, owes a duty to
him to guard an excavation, or else to warn him of itsexistence. (Homer v.
Everett, 91 NM. Y., 641.)

(733) The duty of keeping one’s machine in due repair is nota duty which
is owing to a person who comes uninvited upon one’s premises.
Or,

A person, who goes upon the land of another without invitation to
secure employment from its owner, is not entitled to indemnity from such
owner for an injury received from a defective machine on the premises not
obviously dangerous which he happens to pass. (Larmorev. Crown Point
fron Co., 101 NV. Y., 391.)

(734) The owner of a city house and lot owes no duty to his neighbour to
keep his back stoop in safe condition. (Sterger v. Van Sicklen, 132 N. Y.,
499.)

(735) There is no rule of law that if a person invites another to come
upon premises which he owns and controls, he is responsible for any injury
which ensues to such person, except that which ensues from the latter’s own
negligence. (Flynn v. Cent. R.R.of N. F., 142 N. Y., 439.)

See also Title V., Miscell. Defts., sad. xom., Shopkeepers.

(Crossing Ratlroads.)

(736) The tacit permission of a railroad company to the public to cross
its tracks at other places than the highways does not impose any duty on it
of protecting persons while crossing. (Micholson v. Lrie Railway Co., 41
N. Y,, 525.)

(737) A railroad company owes no duty to persons, having a license to
cross its tracks at a point not on the highway, to keep the brakes of
detached cars on side-tracks, where the grade is slight, setso as to keep them
stationary. (Suttonuv. N.Y. Cent. & H.R. R. R. Co., 06 N. Y., 243.)

(738) Where a railroad company permits the public to use a private
crossing, it owes a duty to the public to exercise reasonable care in moving
its trains at such crossing. (Barryv. N.Y.C.& AR: Rk. RR. Co, 92 MV. Y.,
289.) .

(739) When railroad companies permit persons to use pathways across
their tracks as crossings, they must see that their trains observe due care in
approaching them. (Swift v. Stat. sl. R. T. R. R. Co., 123 M. ¥., 545.)

(Without Permission, or as Trespassers )

(740) A railroad company is under no duty to give warning of an
approaching train toa person stepping on its track so unexpectedly as net
to give time for the warning. (Harty v. Cent. Rk R. of N. F, 42M. Y.,,
468.)
586 Cases CopIFIED. © [Cuap, IT.

 

(741) The statutory duty of railroad companies to give warning of their
trains at crossings is owing to travellers on the highway, not to persons
walking on their tracks. (/@.)

(742) It is not negligent in a railroad company to run over an unseen child
ata spot where it was not bound to anticipate that the child might be.
(Prendegast v. N.Y. C. & H.R. R.R. Co., 58.N. ¥., 052. Kenyonv. N.Y. C-
& H.R. R.R. Co., 76 N. ¥., 607.)

(743) A person who steps upon a railroad track to save human life is not
atrespasser. (Spooner v. Del., L. & W.R. R. Co., 115 N. Y., 22.)

(744) Itis the duty of a locomotive engineer on seeing a person on the
track and not moving therefrom, but signalling to him as the locomotive
approaches, to stop the train if he can, before it reachessuch person. (/d.)

(745) No negligence can be imputed to a railroad company where the
death of a person is solely due to his being run over because of his accidental
fall upon its tracks. (Dorman v, Broadway R. R. Co. of Brooklyn, 117 N. Y.,

655.)

As to Animals Trespassing.

(746) Where cattle are trespassing on another’s property the latter owes
no duty to their owner to take care not to injure them. (Munger v. Tona-
wanda R. R. Co., 4 NV. Y., 349-)

Questions growing out of Relation of Landlord
and Tenant-

(See also Art. I, Masters, sud. nom., Resp. Sup.)

(Lessors to Lessees.)

(747) A landlord is under no duty to a lessee of part of a building to repair
another part injured by fire. (Doupev. Genin, 45 WV. Y., 119.)

(748) {tis negligent for a landlord to leave open over night a hatchway
in the hall of his building which is usually closed. (Totten v. Phipps, 52
NV. Y., 354.) ;

(749) A landlord, who is ignorant of the unsafe condition of a boiler in
premises let by him, is not liable for the damages resulting from its explo-
sion. (Jaffe v. Harteau, 56 NV. Y., 398.)

(750) An owner of a house, which is to his knowledge infected by a
contagious disease, must not rent it without informing the tenant of the
fact. (Cesar v. Karutz, 60 N. Y., 229.)

(751) Aglandlord is under no obligation to keep the fire-escapes of his
tenement-house safe for any other purpose than escape. in case of fire.
(McAlpin v, Powell, 70 WN. Y., 126.)

(752) A landlord who fails to supply for his tenants the means of escape

from fire prescribed by law is liable for the damages resulting therefrom.
(Willy v. Mulledy, 78 N. Y., 310.)

(753) The landlord of a tenement-house must keep its halls and general
stairways in suitable condition for safe passage by his tenants. (Feil v.
Reinhart, 127 N. Y., 381.)

(754) A landlord of a tenement-house is bound to keep the ceilings of the
hallways in repair. (Dollard v. Roberts, 130 N. Y., 269.)
Caus. NEc. ] Casks CopIFIED. 587

 

(755) As to neglect of landlord to repair in suit for rent. (Vann v. Rouse,
94 MV. Y., 401.)

(Lessors to Third Persons.)

(756) A landlord,who lets premises in a dangerous condition, he agreeing
to repair them, is responsible to third persons for the damages resulting
from such condition. (Davenporty. Ruckman, 37 N. Y., 568.)

(757) Ifa landlord lets premises in good order and does not obligate him-
self to his tenant to keep them so, he dves not owe any duty to any one else
todoso. (Clancy v. Byrne, 56 N. Y., 129.)

(758) A landlord, who has let his premises in good condition is not
responsible for the neglect of his tenants to keep them so. (Ditchett v.
Spuyten Duyvil & P.M. R. R. Co., 67 N. Y., 425.)

(759) A landlord owes no duty to the employees of his tenant to see that
the leased premises are safe for their use. (Ayan v, Wilson, 87 NV. Y., 471.)

(760) The owner of leased premises, who is not under agreement with
his tenant to keep them in repair, is not responsible to passers-by on the
sidewalk for damages sustained through its getting out of repair during
such tenancy. (Wolf v. Kilpatrick, 101 N. Y., 146)

(761) A license by a landlord to a tenant, to use an unlet portion of his
premises for a specified purpose, casts no duty upon him to see that that
portion is safe for visitors of his tenants to tumble upon. (Aéiller v.
Woodhead, 104 N. Y., 471.)

(762) A person who lets his farm on shares is not responsible for injuries
done by a vicious animal belonging to the farmer. (A/arsh v, Hand, 120 NM.
Y., 315. See also Ferguson v. Hubbell, 97 N. Y., 507.)

(763) A railroad company which leases the right to another company ta
run'trains over its tracks under its own regulations is, so far as strangers
are concerned, to be considered as the owner thereof. (Dolan v. Newburgh
D.& C. R. R. Co,, 120 NM. Y., 571.)

(764) A lessor, who knowingly lets premises in a dangerous condition, is
responsible for the damages resulting from such condition. (7imlinv.
Standard Oil Co., 126 N. Y., 514.) 5

(765) An owner of a tenement-house is under no duty to his tenants nor
to their guests to keep the door to the cellar locked or lighted, or the plat-
form at the head of the cellar stairsrailed. (Hilsenbeck v. Guhring, 131 N.
¥., 674.) ;

(766) The agreement of a landlord with his tenant to repair a back stoop
of a city house does not cast upon the landlord any duty to do so as to a
neighbour. (Serger v. Van Sicklen, 132 N. Y., 499.)

As to liability of lessor under Civ. Dam. Act, see Chap. X, Misc. Subj.,
sub. nom., Civ. Dam. Act.

(Zessees to Lessors.)

(767) A tenant, in mining coal on demised premises, must not negligently
destroy the mine. (Genet uv. Del. & Hud. C. Co, 136 WV. Y., 593.)
588 Cases CoDIFIED. [Cuap. IT.

 

(Lessees to Third Persons.)

(768) The fact that a person, who uses an improperly constructed coal-
hole in a sidewalk, is a tenant of the building to whichit belongs, ignorant
of the defect, does not excuse him from liability to a passer-by for damage
resulting therefrom. (Irvine v. Wood, 51 NY, 224.) '

(769) The fact that a person, who as to the actual occupant of premises is
a landlord under no duty to make repairs, is himself a tenant under an
obligation to his own landlord to make repairs, imposes upon him no duty
to any one else to do so.

Or,

A tenant of premises under obligation to his landlord to keep them in
good repair, who has sub-let them in good order to a sub-tenant, without
obligating himself to keep them so, owes no duty to any one but his own
landlord to keep them in repair. (Clancy v, Byrnes, 56 WV. Y., 129.)

(770) Where there are several occupants of a building governed by the
law as to trap-doors at each floor in elevator shafts, each is only bound to
see that he himself closes the trap-door after his own use of the elevator.
(Harris v. Ferry, 89 N. Y., 308.)

(771) Where a person is injured upon leased premises, which are not in
a safe condition it is immaterial that the lessee agreed to keep them in good
repair, if it does not appear that he was negligent in failing to discover and
remedy the defect. (Odellv. Solomon, 99 N. Y., 635 )

See also Art. V, Misc. Defts. sud, 2om., Snopkeepers,

(772) A lessee leasing premises which are in a dangerous condition, is
not responsible for the damages resulting therefrom, unless he had knowl-
edge thereof, or time enough has elapsed after the letting for him to have
acquired such knowledge by the exercise of reasonable diligence. (Zimlin
v. Standard Oil Co., 126A. Y., 514.)

Remainder-Men.

(773) Aremainder-man who succeeds to real estate subject to a valid
out-standing lease, is not responsible for the continuance of a nuisance
created thereon during the existence of the precedent estate, without notic
thereof. (Ahern v. Steele, 115 NV. Y., 203.) :

Licensees.

(774) One who uses premises of another without controlling them owes
no duty tospersons not in his service to make them safe. (Cunningham v.
Bay State Shoe & Leather Co., 93 N.Y., 481.)

(775) When railroad tracks of different owners cross each other, license
to one for cars to cross the track of the other, gives no right to the former
to allow his cars to stand so as to obstruct the track of the other, even
though no train is expected. (Albert v. Sweet, 116 WV. ¥., 363.)

Under Civil Damage Act.

(776) A married woman who permits her husband to sell liquor on her
premises, is liable under the Civil Damage Act for the damage resulting from
intoxication caused by such sale. (Mead v, Stratton, 87 N. Y., 493.)
Cavs Nes.) Casrs CopIFIED. 589

See also Quinlun v. Welch; 141 N. Y., 158, and Chap. X, Misc. Subj., sd.
nom., Civ. Dam. Act,

Miscellaneous.
(777) To put a lantern ona beam ina haymow to give light while using
apitchfork near byisnegligent. (Stone v, Western Transp. Co., 38 NV. Y., 240.)

(778) A person whose property is, without his fault, borne upon the lands
of another by inevitable accident, such as a flood, may elect either to
abandon it, or to reclaim it. (Sheldon v. Sherman, 42 N. ¥., 484.)

Tf he abandon it, he is not liable to his neighbour for the injury
which the latter may sustain. (/d.) |
If he reclaims it, he must pay his neighbour for such damages. (/d.)

(779) A person operating on his own premises, without negligence, a
steam boiler, is not liable for damages to adjoining property from its
explosion by reason of a defective construction of which he had'no knowl-
edge or notice. (Loseev, Buchanan, 51 N. Y., 476.)

(780) An easement may be created by agreement, whereby a negligently
constructed embankment may be maintained by one neighbour near
another’s line. (Van Rensselaer v. Alb. & West. S. R. R. Co., 62 N. V., 65.)

(781) Ifa person keeps gunpowder in a place or under circumstances
where it would be likely in case of explosion to injure neighbouring
dwellings, he is liable for the damages done by an explosion, without
regard to the question whether the explosion was due to negligence. (Heeg
v. Licht, 80 NV. Y., 579.)

(782) Question between owner and contractor as to liability to pay for
damages caused by explosion of torpedo in sinking an artesian well, (Doyle
uv, Rector &¢. of Trin. Church, 118 N. Y., 678.)

Cross REFERENCES.

See Tit. I, The State; Tit. II, Municipalities ; also Cnap. IV,
Ques. of Fact; Chap. V, Defenses ; Chap. X, Statutory Causes.

(Chap. IT, Tit. [V—Continued.)
ARTICLE V.—MISCELLANEOUS DEFENDANTS,

§ 145. Professional men owe to persons, to whom they give
professional services, the duty of bringing to the performance of
such services a reasonable amount of knowledge and skill in
regard to the same, and of using all the available knowledge
and skill they possess without regard to whether such services
are gratuitous.
590

Cases ConiFieEb.

[Cuap. IT.

 

§ 146.
duties :

Persons occupying trust relations owe the following

(1) As to the beneficiaries, they must manage the trust
property carefully and economigally, making investments
only in such ways as the law allows, and endeavoring to
produce the best return consistent with safety to the

principal.

(z) As to third persons they are under the same
duties ia managing the trust estate as if they were the

beneficial owners as well as legal.

§ 147.

Bailees of personal property owe the following duties:

(1) As to the owner they must take due care of the
property while in their charge.

(2) As to third persons, they are under the same duties
in regard to its use, as if they were its owners.

§ 148. Pledgees of personal property must take due care of it.
No further generalization of the rules of duty growing out of the
cases in this article can well be given. Special rules in special relations

will be found under the different appropriate headings.

The difficulty

in drawing the line between negligence as a tort, and negligence as a

breach of contract is emphasized here.

Some of the cases so clearly

involve mere breaches of contract, the traces of any element of ‘‘negli-
gence’’ in them are so faint, that 1f the author is criticised for their
insertion in such a work, he must stand mute, or at most repeat his
plea that he should be pardoned for inability to trace the boundary line

of a shadow.

THE RELATIONS HEREIN MENTIONED ARE THOSE OF:

Agents.

Agistors.

Architects,

Assignees.

Attorneys. (See Lawy.)
Bailees.

Banks.

Brokers.

Builders. @

Captains. (See Mast.)
Cashiers.

Charterers.

Club Members.
Collectors,
Conductors,
Consignees.
Contractors.
Directors.

Doctors. (See Phys )

 

Executors,
Express Co’s.
Ferry -
Gas “
Hirers.
Husbands.
Innkeepers
Insurers.
Lawyers.
Manufacturers.
Masters of Vessels.

Members of Corp., &c.

Notaries.

Obligors.

Officers.

Owners of Pers. Prop.
Parties.

Persons in Trust Rel.
Physicians.

 

Pledgees.
Protessional Men.
Purchasers.
Purveyors.
Receivers.
Reporters.

Safe Dep. Co’s,
Savings Banks.
Searchers.

Sellers. (See Vend.)
Shopkeepers.
Special Carriers.
Steam Co’s.
Stockholders.
Tow-ers.

Trustees.

Users of Pers. Prop.
Vendors,
Warehousemen.
Caus. Nge. ] Cases CODIFIED. 591

 

Agents.

(783) A person who undertakes to collect an unaccepted draft must use
due diligence to present it within a reasonable time for acceptance. (Allen
v. Suydam, 20 Wend., 321.) ‘

(784) Where an agent neglects to perform a duty, which by contract his
principal owes to third persons, who are thereby injured, their remedy is
against the principal and not the agent. (Denny v. 7he Manhattan Co., 5
Den., 639.)

(785) The remedy of the holder of commercial paper, to recover damages
resulting from negligence in its presentment or protest on the part of a bank
to whom it was sent for collection by the bank whom he had employed, is
only against the latter, and not against the latter’s agent. (Mont. Co. Bk.
v. Alb. City Bk., 7 N. Y.. 459.)

(786) An express company, which undertakes to collect a note and protest
it if not paid, is liable for damages in case it fails to do so. (Coghlan v. Dins-
more, Pres., &¢., 1 Abb., C. A. D. 3755 S.C. 4 Tr. App. 386.)

(787) An express company, which undertakes to present to the maker a
promissory note for payment, at a place beyond its own line without
informing the holder that its line does not extend to such place, is liable
for damages resulting to the holder from the neglect to present it of another
company to whic it has delivered the note for the purpose of carrying out
its contract with the holder. (Palmer v. Holland, Treas, Am. Exp, Co., 51
NV. Y., 416.)

(788) A general agent of the owner of a vessel is not responsible for the
negligence of the crew in its management. (Sissel v. Torry, 60 N. Y., 635.)

(789) A stock-broker who is operating in stocks for the benefit of a
customer must act with reasonable care. (Harris v. Tumbridge, 83 NV. Y., 92.)

(790) In the absence of express agreement an agent only owes to his prin-
cipal reasonable skill and ordinary diligence in the discharge of the duties
of hisagency. (Loeb v. Hellman, 83 N. Y., 601.)

(791) A mercantile agency, undertaking to make collections throughout
the country by means of local attorneys, is answerable for the negligence
of an attorney employed upon terms known only toitself. (Weyerhauser v.
Dun, 100 N. Y., 150.)

(792) A broker, even when acting gratuitously in the business of dealing
in securities as agent for a principal, must not neglect to exercise the skill
and knowledge which he holds himself out to possess, (/sham v. Post, 141
N. Y., 100.)

For Banks as collecting agents see Banks.

Agistors,. (See Bailes.)
Architects, (See 7rofesstonal fen.)
Assignees . (See Persons in Trust Relations.)
Attorneys in Fact. (See Agents.)

sf at Law. (See Lawyers.)
592 Cases CoDIFIED. {Cuap. II.

 

Bailees. (Warehousemen.)

(793) The means taken by other warehousemen to guard goods stored
with them are not the measure of care which a warehouseman is bound to
take. (Schwerin v. McKie, 51 V., Y., 180.)s

(794) The fact that a warehouse is a bonded warehouse does not relieve
the warehouseman of the duty of taking proper care of goods stored in it.
(Za.)

(795) A warehouseman is responsible for a loss from a negligent delivery
of property in his charge to a person not authorized by the person, by whom
it is stored, to receive it. (Collins v. Burns, 63 N. ¥., 1.)

(796) Where the presumption of negligence on the part of a warehouse-
man arising from demand and neglect to deliver is met by evidence of theft,
the burden is on the plaintiff to show that the warehouseman was negligent
in guarding the things stolen. (Claflin v. Meyer, 75 N. Y., 260.)

(797) A warehouseman who lets a portion of his warehouse to a person for
the storage of goods must use duecare to see that they are not stolen, (Jones
v .Morgan, 90 XN. Y., 4.)

(798) A warehouseman is kiable for the loss occasioned by ‘an innocent
mistake on his part in delivering goods to a person not entitled to receive
them. (Bank of Oswego v. Doyle, 91 N. Y., 32.)

See also Tit. IV, Art. JI, Common Carriers of Goods.

(Miscellaneous.)

(799) A hirer of personal property, who has hired it for one purpose, and
uses it for another, during which use it is lost, is liable to the owner for its
value independent of any question as to whether such loss occurred through
his negligence. (Beachv. Raritan & Del. Bay R. Rk. Co., 37 N. ¥., 457.)

(800) A keeper of a cattle-yard is not bound to protect cattle in his care
against the consequences of an unprecedented storm. (Morgan v. Crocker,
62 WV. Y., 626.)

(So1) When the property of a customer is demanded from a safe deposit
company under color of legal process, it must take such care in examining
the process and resisting the taking of property not described therein, and
reclaiming it if taken, as a prudent and intelligent man would do, if demand
were made upon him of such property under a claim of right without legal
process. @Xoderts v. Stuyvesant Safe Dep. Co., 123 N. ¥., 57.)

See also, Banks.

See also, Stuart v. Stone, 127 MV. Y., 500, Chap. VII, Evidence, sub. nom.,
Presumptions.

Banks. ’
(As Collecting Agents.)

(802) The holder of an endorsed note who endorses it to a bank for collec.
tion may recover from it the damages he sustains through its neglect to take

steps to charge the endorser if the maker fails to pay. (Bank of Utica v.
Smedes, 3 Cow., 662.)
Caus. NEc. ] CasEs CopIFI£D. 593

 

(803) Where a debtor transfers an endorsed note to his creditor as collateral
security and the latter gives it to a bank to collect, and the bank fails to
properly charge the endorser upon its non-payment, the debtor may recover
from the bank directly the damages sustained by such neglect. (Bank of
Utica v. McKinster, i1 Wend., 473.)

(804) A bank receiving a bill of exchange for collection in another state is
liable for any damages resulting from the neglect of its correspondent in
such other state to take due steps to give notice of non-acceptance. (Adlen
v. Merchants’ Bank, 22 Wend., 215.)

(805) When two banks have undertaken the collection of commercial
paper, one acting as agent for the other, which in turn is the agent immedi-
ately employed by the holder, they are not jointly liable to the holder for
negligence in such undertaking. (Mont. Co. Bk. v. Albany City Bk. 7 N. Y.
459-)

(806) The neglect of a cashier of a bank to limit his endorsement as cashier
on a transfer of a note to an agent for collection only, whereby the agent
has the apparent jus disponendi of the note, is the negligence of the bank.
(Bank of N. Y. v. Bank of Ohio, 29 N- Y., 619.)

(807) A bank receiving a bill or note for collection, whether payable at its
counter or elsewhere, is liable for any neglect of duty by which any of the
parties to it are discharged, whether of its officers and immediate servants
or other agents of the bank or its agents or its correspondents or agents
employed by such correspondents. (Ayraudt v. Pacific Bank, 47 N. Y., 570.)

(808) A direction by a holder of a note, to protest it if not paid, does not
by legal implication establish a special contract limiting the liability of the
bank to a mere agency to employ a notary to protest it, (/d.)

(809) A bank which negligently fails to discover the loss in transit of a
check, which it has, under agreement with the holder, forwarded for collec-
tion, whereby the holder suffers loss through the failure of the maker before
a duplicate can be obtained, must make good the loss. (Shipsey v. Bowery
National Bank, 59 N. Y., 485.)

(810) A bank undertaking the collection of commercial paper must, if it
receives a check in payment of it, present the check for payment as soon as
with reasonable diligence it can. (First Nat. Bank v. Fourth Nat. Bank, 77
XN. Y., 320.)

(811) A bank negligently discharges an endorser, if it assumes itself to
pay a note sent toit for collection. (Whiting v. City Bank of R.,77 N. Y.,
363-)

(812) It is not negligent for a bank, which has received for collection a
note payable at a bank in another place, to send by mail the note to such
bank for payment. (Judig v. National City Bank, 80 NV. Y., 100.)

(813) Where a bank undertakes the presentment and collection of a sight
draft for a debt, of which protest is waived, and the drawee accepts it
verbally, promising to pay the following week, the bank is not under any
duty to use the same diligence in its collection as in the case of regular
commercial paper. (Crouse v. First Nat'l Bk., 137 WV. Y., 383.)
594 Cases CopIFIED. (Cuap. IT.

 

(814) As to negligence in regard toa certification. (Clews v. Bk. of N.Y.,
&«., 89 NM. V., 418; 105 /d., 398; 114 /d., 70.)

(As Batlees.)

(815) A bank is not responsible for the safe-keeping of a customer’s
securities placed in its vaults by its officers without special authority of the
directors. (first Nat. Bank v, Ocean Nat, Bank, 60 N. Y., 278.)

(816) A national bank is liable for the loss of a special deposit through
negligence of its officials. (Pattison v. Syracuse Nat'l Bank, 80 N. Y., 82.)

(817) A bank which holds the securities of its customers for safe-keeping,
must take due precautions to identify and protect them from misappropri-
ation by its officers or clerks. (Ouderkirk vu. Cent. Nat. Bk., t19 NV. Y., 263.)

(Savings Banks.)
(818) Under a rule duly printed in its deposit-book, that all payments
made to persons presenting the deposit-book shall be deemed good payments

to the depositor, a bank is not negligent in making a payment to a person
‘so presenting a book. (Schoenwald z. Met. Sav. Bk., 57 N. Y., 418.)

(819) Notwithstanding a rule of a savings bank that the possession of its
pass-book is sufficient to warrant payment to the person possessing it, the
bank owes a duty to its depositor not to be negligent in making such a
payment. (Appleby v. Erie County Sav. Bk., 62 N. Y., 12.)

(820) When a person presenting a depositor’s book at a savings bank to
draw money is of a different sex from that of the depositor named therein,
a bank which has promised to use its best efforts to prevent fraud must not
pay the money without inquiry. (Allen v. Williamsburgh Sav. Bk., 69 N.
¥., 314.)

(821) If a savings bank is negligent in paying its depositor’s money to a
stranger, who presents his pass-book. it is not protected by a clause in the
pass-book which provides that it shall not be responsible for payments toa

person who presents the book. (Kummelv. Germania Savings Bank, 127 N.
Y., 488.) :

(822) A rule in a saving bank’s pass-book, providing that it shall not be
responsible for any fraud committed on its officers in producing the pass-
book and drawing money without the knowledge or consent of the owner,

‘does not relieve the bank from the duty of using care in making payments,
(d.)

(823) a es banks, in paying out money to persons presenting a deposi-
tor’s pass-book, must exercise due care in seeing that the payment is made
to a person entitled to receive it. (Gearns v. Bowery Savings Bank, 135 W.
¥., 557+)

Brokers, (See Agents.)

Builders. (See 47chitects.)

Captains, (See Masters of Vessels.)

Cashiers, (See Officers.)

Charterers of Vessels, (See Owners of Pers.. Prop.)
Caus. Nec. ] Cases CopIFIED. 595

 

Club Members, (See Members of Corporations, &c.)
Collectors, (See 4gents.)

Conductors.
See Elmore v. Sands, 54 N. Y., 520.

Consignees.
(824) Consignees, who unload their own freight from cars, must, if they

leave any portion of the load on a car, see that it is safely secured. (™. Y.,
Lake E. & W. R. R. Co. uv. Atl. Ref. Co., 129 N. Y., 597.)

Contractors.
(Public.—See Tit. IIL)
(Private.)

(825) The owner of a machine, furnished by him to another for the latter’s
use under an agreement to keep it in repair on being notified of its need of
repair, does not, in the absence of such notice, owe to the latter’s servants
who have no knowledge of the agreement any duty of keeping it in repair.
(Kingv. N.Y. C.& H.R. R. R. Co,, 66 N. V., 181.)

(826) Where a person contracts to furnish to another an appliance to be
used by the latter’s servants he owes a duty to suchservants tosee that it is
safe for such use. (Devlin v. Smith, 89 N. Y., 470. See Scaffold Act, zzfra,
sub nom., Owners.)

-(827) As to liability of contractor to adjoining owner for interfering with
stream, see Art. IV, supra, sub. nom., Watercourses. (Covert v. Cranford, 141
N. Y., £21.)

(828) A clause in a contract with an owner for the building of a house,
that the contractor shall be accountable for any damage that may be done
to the person or property of a neighbour, does not subject the contractor-to
any liability to the neighbour for damages resulting from negligent blasting
by asub-contractor. (French v. Vix, 143 N. Y., 90.)

Directors. (See ?ersons in Trust Relations.)
Doctors, (Gee refessional Men.)

Executors. (See ersous in Trust Relations.)
Express Co’s. (See Collectors, also Common Carriers.)

Ferry Co’s. (See Special Carriers.)
Gas Co’s, (See Purveyors.)
Hirers of Pers. Prop. (See Owners of Misc. Things, infra.)
Husbands.

(829) A husband is not liable for the tort of his wife in knowingly keeping
a vicious dog on her premises, even though the dog belongs to him. (Qué/ty
v. Battie, 135 N. Y., 201.)
Innkeepers. (See also Chap. X, sud. nom., Statutory Causes.)

(830) Personal notice to a guest of a place to keep valuables is equivalent
to posting a notice in his room. (Purvis v. Coleman, 21 N. Y., 111.)
596 CasEs CODIFIED. (Cuap. II.

(831) An innkeeper is liable for the loss of a guest’s property burned ina
fire at his inn, whether it is a negligent fire or not. (Mudett v. Swift, 33 M.
Y., 571.)

(832) An innkeeper is not responsible as innkeeper, however he may be
as bailee for hire, for the safe keeping gf a horse left at his stable by one
who is nota guest. (/ngadlsbee v. Wood; 33 N. Y., 577.)

(833) The immunity which the Innkeepers’ Act gives to an innkeeper who
posts in his guest’s room a notice that the latter’s money, jewels and orna-
ments may be deposited in a safe in the office, extends to all that the guest
brings, whether for personal convenience or travelling expenses. (yat/ v.
Taylor, 42 N. Y., 258.)

(834) A guest’s watch, worn and used by him in the ordinary manner, is
neither a jewel nor an ornament within the meaning of the Innkeepers’
Act. (Ramaley v. Leland, 43 N. Y., 539-)

(835) The innkeeper is liable under the Innkeepers’ Act for whatever
amount is deposited with him by his guest, although not informed of the
amount. (Wilkins v. Earle, 44 N. Y., 172.)

(836) Where the loss of a guest’s valuables occurs on the eve of his
departure, atsuch a time that if they had been deposited with the innkeeper
under the Innkeepers’ Act, they would have been returned to him, the act
does not operate to relieve the innkeeper on the ground that no deposit was
made. (Sendetson v. French, 46 NV. Y., 266.)

(837) Negligence in an innkeeper under the Innkeepers’ Act may consist
in facilitating the commission of arson. (faucett v. Nichols, 64 NV. Y., 377.)

(838) An innkeeper, who has not posted in his room the notice as prescribed
by the Innkeepers’ Act, is liable for the loss of property of an army officer
who, while making an agreement to occupy the room for a definite time,
does so on the proviso that everything is satisfactory, and he is not sooner
ordered away on military duty.

Or,

An army officer, who makes an agreement with an innkeeper to occupy
a room for a definite time on the proviso that everything is satisfactory
and he is notin the meantime ordered away on military duty, is a guest
within the technical meaning of that word. (Hancock v. Rand, 94 N. ¥Y., 1.)

Insurers.

(839) Where a person applies for insurance on one vessel and the insurer
insures another, the mere negligence of the insurer’s agent in not dis-
coveriffg which was the vessel sought to be insured will not charge the
insurer with a liability for an insurance which he did not in fact make.
(Hughes v, Mercantile Mut. Ins. Co., 55 N. Y., 265.)

Lawyers. (See Professional Men.)
Manufacturers.

(840) A manufacturer of a defective machine not necessarily dangerous,
sold by him to a purchaser with notice of the defect, is not liable for

damages resulting from its use by a third person. (Loop v. Litchfield, 42
XN. Y., 351.)
Cavs. Nzc. ] Cases Copiriep. 597

(841) Manufacturers cf steam boilers owe no duty to the public to con-
struct their boilers properly. (Loseev. Clute, 51 N. Y., 494-)

Masters of Vessels.

See Ryall v. Kennedy, 67 N. Y., 379; Art. 1, Masters, sub. nom., Resp. Sup.

(842) When a seaman is injured at sea and the ship's master is advised
by a physician at a calling port that surgical treatment should not be
delayed beyond a certain day, it is the duty of the master to put the man
ashore for such treatment, when the chances are that the ship will not
reach her home port within the time named by the physician. (Scarf v.
Metcalf, 107 N. Y., 211.)

Members of Corporations, Clubs, Boards, &c.

(843) The facts that a foreign corporation was organized to do business in
this state, and that its existence in its native state is merely formal, do not
operate to make its officer or stockholder in this state liable for its negligence
committed in this state. (Merrick v. Van Santvoord. 34 N. Y., 208.)

(844) A member of a club, who is not a party to the tortious acts of a
fellow-member in carrying on the club, is not responsible for them. (Znglish
v. Brennan, 60 N. Y., 609.)

(845) A member of a corporate body upon which.a duty rests is not liable
individually for the neglect by the body of its duty, where he was not
specially charged with its performance. (Bassett v. Fish, 75 N. Y., 303.)

See Demarest v, Flack, 128 N. Y., 205.

Notaries.

(846) A notary whom a bank employs to present a note for payment is its
agent. (Ayrault vu. Pacific Bk., 47 N. Y., 570.)

(347) A notary, to whom a bill is given to collect, is not bound to demand
payment in person in any place where there is general custom for notaries
to make such demand through their clerks. (Commercial Bank v, Varnum,
49 WV. Y., 269.)

(848) A notary, even though a lawyer, owes no duty to a bank which gives
him a note to collect, to make demand and protest on the right day when
the bank makes a mistake and directs him to make demand and protest on
the wrongday. (/2.)

Obligors. (Se Parties.)

Officers.
(Of Munic. Corp.—See Tit. III, Pub. Of.)
(Of Militia.—See Tit. III, Pud. OF.)
(Of Private Corporations.)

(849) The delivery up by the cashier of a bank to a responsible debtor of
a portion of collateral pledged to the bank for a loan by direction of the
bank’s president is not, in the absence of notice that there is collusion
between the president and the debtor, an act of negligence on the part of the
cashier. (Commercial Bank of Albany v. Ten Eyck, 48 N. Y., 305.)

(850) The neglect of a cashier to inquire of responsible brokers to whom
the bank’s securities have been sent by him for sale whether they have been
598 Cases CODIFIED. [Cuap. II.

 

sold, and to take steps to have them pay over such proceeds, is not
actionable negligence. (/d.)

(851) The failure of a bank cashier to consult its discount committee as
required by the by-laws is not a negligent omission of official duty, where
the members of the committee hold no meetings and systematically absent
themselves from their duties. (Second Nat'l Bank v, Burt, 93 N. Y., 233.)

(852) Where the officers of a corporation engage itin business transactions
which are wdtra vires, their neglect to obtain from its board of directors
formal authority for such transactions does not make them personally liable
upon contracts made in the course of the same, (Linkhauf v. Lombard,

rar ¥., ary.)

Owners and Users of Personal Praperty.
(Of Animadls.)

(853) The owner of a domestic animal is only liable for damages which it
inflicts through viciousness known to him, or while it is trespassing. (Vax
Leuven v. Lyke, i N. Y., 515.)

(854) The owner of a vicious dog, known to him to be such, must, as to
third persons lawfully on his premises, see that he is properly secured.
(Kelley v. Tilton, 2 Abb, C. A. D., 495.)

(855) The fact that a horse kicked up his heels from a playful disposition
only, and not from viciousness, is no defense to an action for damages for
negligence in allowing him to run at large. (Dickon v. McCoy, 39 V.Y., 400.)

(856) The fact that an attack by a dog is the first one which the dog has
been known to make, does not excuse its owner from responsibility for the
‘resulting damages where the owner knew he was of vicious disposition.
(Rider v. White, 65 NV. Y., 54.)

(857) A person who knowingly keeps a vicious animal must secure him
at his peril. (Muller v. McKesson, 73 N. Y., 195. Brice v. Bauer, 108 N.Y.,
428.)

(858) A married woman must not allow her a vicious dog to
remain on her premises. (Quilty v, Battie, 135 NV. Y., 201.)

'

(859) Scéenter of owner as to viciousness of his may be inferred from
‘the fact that he bought and used him as a watch-dog and kept him chained
and muzzled. (Hahnke v. Friederick, 140 NV. Y., 224.)

(Of Vessels.)

ae Owners of vessels, carrying passengers. (See Chap. V, Defenses,
Campbell v. Perkins, 8 N. Y., 430.)

(861) The owner of a ship sunk at a wharf owes no duty to the lessee of
the wharf to remove her. (Taylor v. Atlantic Mut. Ins. Co., 37 N. Y., 275+)

(862) In the absence of a special agreement, either in person or by
authority to an agent to make a special agreement, making a charterer of a
vessel with her master, crew and pilot, liable for injuries to her resulting from
the negligence of those managing her, the charterer is not the superior of
any of the persons managing her. (Martin v. Farnsworth, 49 WV. Y., 555.)

(863) A charterer of a vessel, whose agreement with her owner is that he
is simply to pay the latter a stipulated sum per trip, and the owner is to
Caus, NEG. } Caszs CopiFIEp. 599

 

employ and pay the crew and manage the vessel, is not responsible for the
negligence of the crew in its management. (Bisse/ v. Torrey, 60 NV. Y., 635.)

(864) Where the hiring of a ship for a voyage is really a mere contract of
affreightment rather than a charter party, the owners are liable to the hirers
for damages sustained by them through the negligence of her engineer. ©
Or,

Under such circumstances, the engineer is the servant of the owner,
not of the hirers. (Hagan v. Clark, 78 N. Y., 45.)

(865) The mere fact that a defendant is the owner of a vessel which is
being loaded by other persons, is not sufficient to make such defendant
responsible for defective appliances used in the loading.

Or,

Such fact casts upon him no duty to see that the appliances used in

such loading are safe. (Derrenbacher v. Leh. Valley R. R. Co., 87 N.Y., 636 )

(866) Unless there has been such a demise of a vessel as to take from her
owners all control of her, they are liable for the damages sustained by a
seaman in consequence of the neglect of the master to furnish proper medical
care. (Scarffv. Metcalf, 107 NV. Y., 211.)

(867) The owner of a vessel is not answerable fur the damages resulting
from a willful assault upon a seaman by the master. (Gabrielson v. Waydell,
135 WV. Y., 1.)

(868) Owners of vessels, lying ator near wharves in New York harbor, on
which is stored petroleum in quantities exceeding ten thousand gallons,
must not allow on board such vessels any fire or light of any kind without
permission of the wharfinger. (Laws of 1879, chap. 324.)

(Of Miscellaneous Things.)

. (869) A person who uses another’s vehicle is responsible for its fitness for
the use to which itisput. (fetterv. VW. Y. & Har. R. R. Co., 2 Abb. C. A.
D., 458.)

(870) A hirer of personal property, who has hired it for one purpose, and
uses it for another, during which it is lost, is liable to the owner for its value
independent of any question as to whether such loss occurred through his
negligence. (Beach v. Rar. & Del. Bay R. R. Co., 37 N. Y., 457.)

(871) He who furnishes a scaffold to a contractor for use on his own
premises, owes a duty to the contractor’s employees who are to use it, to
have it properly constructed. (Coughtry v. Globe Woolen Co., 56 N. Y., 214.)

(872) The owner of a derrick, furnished by him to another for the latter’s
use, owes no duty to the latter’s servants to keep it in repair, in the absence
ofany agreement todoso, (Kinguv. NV. Y.C.& A.R.R.R.Co., 66 M. Y., 181.)

(873) As to owners of scaffolds, ladders, &c. (Laws of 1885, chap. 314,
am, by Laws of 1891, chap. 214. See Art. IV, Owners of R. P.)

Parties.
ce (Zo Actions.)

(874) Where process issued in an action is set aside for irregularity, the
party in whose favor it was issued is liable for any injury to goods leviedon
under it, resulting from the negligence of the sheriff. (Kerr v, Mount, 28 NV.
¥., 659.)
600 Cases CoDIFIED. [Cuap. II.

 

(Zo Lustruments.)

. (875) The failure of an obligor on a bond, which contains a clause making
his liability conditional on an authentication thereof by a trustee, to notify
the public of the fact that it has been stolen, does not constitute negligence
so as to make him liable to a person into ‘whose hands the bond has come by
purchase in good faith in reliance upon an apparent authentication, which
was in reality forged. (Maas v. Missouri, K. & T. R. Co., 83 N. Y., 223.)

(876) Where the execution of a contract other than a negotiable instrument
is obtained by fraud, the party executing it is not liable upon it even to an
innocent third party who has acted on faith of it, unless he was guilty of
negligence in its execution. (Page v. Krekey, 137 MV. Y., 307.)

Persons in Trust Relations.
(Assignees.)

(877) An assignee for the benefit of creditors is chargeable for loss
of the assigned estate resulting from his negligence. (Litchfield v. White, 7
N. Y., 438.)

(878) The neglect of an assignee for the benefit of creditors to take steps
to arrest the sale of the assigned property under execution upon a prior
judgment which he has reason to believe is fraudulent, is cause for his
removal. (Jz re Cohn, 78 N. Y., 248.)

(879) An assignee for benefit of creditors is guilty of negligence if he pays
any expenses on property of the assignor which is mortgaged for more than
its value. (Jz ve Dean, 86 N. Y., 398.)

(880) The negligent omission of an assignee for the benefit of creditors to
assail a fraudulent transfer of property, made by the assignor prior to the
assignment, is a breach of trust which can be reached upon his accounting.
(Z1 re Cornell, Assignee, 110 N. Y., 351.)

(881) An assignee for benefit of ereditors, who turns over to his co-
assignee any of the trust funds, must not neglect to see that hisco-assignee
properly disposes of them. (Bruen v. Gillet, 115 N. Y., 10.)

See also, Receivers, infra.

(Directors.)

(882) Trustees and directors of savings banks are bound to exercise such
care in the management of its affairs as men of common prudence would
ordinarily exercise in their own affairs. (Hun v. Cary, 82. Y., 65.)

(883) Directors of banks are liable for the loss of the bank’s funds through
their neglect and inattention to their duties. (Brinckerhoff v. Bostwick, 88
NV. Y., 52.)

(884) An action by a stockholder of a corporation against its directors to
call them to account for damages sustained by the corporation by reason of
various acts of negligence and misconduct, is an equitable action, in which
they are not entitled as of right to a trial by jury. (/@., 105 WV. Y., 567.)

(Zxecutors.)

(885) An executor, who negligently fails to obtain an adequate price for
property sold by him, may be charged on an accounting with the amountit
was actually worth at the time of the sale. (are Saltus, 3 Abd, C.A.D., 243.)
Caus. Ne. | Cases Copirrep. 601

(886) Where an executor by his negligence suffers his co-executor to
receive and waste the estate, when he has the means of preventing it by
proper care, he is liable to the beneficiaries for the estate thus wasted.

Or,

An executor owes to the beneficiaries under a will the duty not to
allow a co-executor to receive and waste the estate, when he has the means
of preventing it by proper care. (Adair v. Brimmer, 74 N. Y., 539.)

(887) Itis not negligent for an executor tu leave negotiable bonds belonging
to the estate in thecustody of a person of good reputation and responsibility,
in whose possession the testator placed them. (McCabe v. Fowler,84 N. Y.,314.)

(888) The rule thatan executor is liable for the negligence of a co-executor,
applies as well where the executors are aiso trustees. (Ormiston v. Olcott, 84
WV. ¥., 339-)

(889) It is not negligence in an executor to allow his co-executor to retain
the proceeds of a sale of the trust estate, even though the co-executor is
insolvent and the payment is made in presence of both. (Croft v. Williams,
88 WV. V., 384.)

(890) An executor must not allow the statute of limitations to run against
a collectable debt due to the estate, which becomes known to him in timeto
prevent it. (Harringtonv Keteltas, 92 N. Y., 40.)

(891) A provision in a will, that the executor shall not be liable for any loss
to the estate except such as occurs through his willful default, misconduct
or neglect, excuses the executor from any loss from negligence that is not
willful. (Cras v. Young, 92 N. Y., 56.)

(892) Executors or trustees, who permit a third person to manage and
control the estate, are responsible for his negligent management thereof.
(Earle v. Earle, 93 N. Y., 104.)

(893) Where a will directs an executor to sell real estate for the best price
in his best judgment, it is not negligent for the executor to omit to sell it,
where there is no demand for it, and real estate in the neighborhood has
depreciated in value. (Haight v, Brisbin, 96 N. Y., 132.)

(894) The neglect by one executor to perform a duty imposed by a will
upon several executors, to set apart and properly invest a legacy, is not
excused by his having left it to his co-executors to perform. (Xemington v,
Walker, 99 N. Y., 626.)

(895) An executor who has been negligent in selling real estate, which
under the will he was directed to sell, must answer for the loss sustained.
Haight v. Brisbin, 100 N. Y., 219.)

(896) An executor must not allow the estate’s monies received by his co-
executor to be used in the business of the co-executor’s firm. (Wilmerding
uv. McKesson, 103 NV. Y., 329.)

(897) One executor is not liable for the act of his co-executor in hypothe-
cating for his own use without the former’s knowledge, securities belonging
to the estate. (/Z.)

(898) Mere passivity in one executor, whereby he allows a co-executor to
manage the estate and thereby misappropriate the same, is not actionable
negligence. (Cocks v. Haviland, 124 N. Y.. 426.)
602 Casxs CODIFIED. (Cuap, IL

 

(899) Where, through the neglect of an executor in charge of real estate to
pay interest on a mortgage out of rents and profits received by him, and
pursuant to a collusive arrangement between the mortgagee and some of
the legatees of the same,asale has been had to one of them under a
judgment of foreclosure, the same may be set aside at the suit of an
injured legatee. (Carpenter v. Carpenter, 131 N. Y., 101.)

(g00) An executor is not guilty of negligence in permitting a co-executor
to receive and re-invest proceeds of the sale of real estate, where such co-
executor has a life estate in the whole estate, and is donee of a power to sell
such of it as she may desire. (/z ve Blauvelt, 131 NV. Y., 249.)

( Receivers.)

(got) An assignee or receiver of a railroad company is not personally
responsible forthe damages resulting from the negligence of the subordinates
operating the road. (Cardot v. Barney, 63 N. Y., 281. See Kain v. Smith,
80 WV. Y., 458.)

(902) Negligence by a receiver in regard to the sale of assets of the estate
does not give the purchaser the right to have the sale confirmed by the
court. (Matter of Atty. Gen. v. Cont. Life Ins. Co., 94 NV. Y., 201.)

See also Art. I., Masters, sub nom., Resp. Sup.

See also Assignees, supra.

Trustees of Corporations.)

(903) The neglect of trustees of a manufacturing corporation to file their
annual report within twenty days after the first of January, does not subject
them to the penalty for failing to make, publish and file it within twenty
days, where it was made within that time, and published and filed within a
reasonable time thereafter. (Cameron v. Seaman, 69 N. Y., 396.)

(904) The neglect of trustees of a manufacturing corporation, to state in
the aggregate of indebtedness in their annual report certain of its liabilities,
does not, in the absence of bad faith,even though they knew of the
liabilities, subject them to the penalty for filing a false report. (Butler v.
Smalley, 101 NV. Y., 71.)

(905) Rule in Cameron v. Seaman, 69 N. Y., 396, re-affirmed, (Butler
uv. Smalley, 101 N. Y., 71.)

(906) The neglect of trustees of a manufacturing corporation to file their
annual report is not excused by the fact that they made it, and gave it to an
officer gf the company to file, whoomitted to do so. (Whitney v. Cammann,
137 WV. Y., 342.)

(Trustees for Individuals.)

(907) A trustee who neglects to keep the trust funds properly invested, is
chargeable with interest commencing six months after his receipt of the
monies. (DePeyster v. Clarkson, 2 Wend., 77.)

(908) The negligence of a trustee of real estate whereby an estate by
adverse possession is gained by another, estops the beneficiaries. (Bennett
v. Garlock, 74 N. Y., 302.)

(909) It is not negligent for a trustee to accept a security outside of the
jurisdiction of the court, if it is the only way to secure the estate. (Ormiston
vu, Olcott, 84 N. Y., 339.)
Caus. Nze, ] Cases CopiFIEp. 603

 

(910) An executor or trustee is not necessarily negligent because he omits
to foreclose a mortgage when itis due. (/d.)

(911) If a trustee, holding trust funds for investment, neglects for over six
months to invest them, he is chargeable with interest unless he can justify
the delay. (Lentv. Howard, 89 N. Y., 169.)

(912) The negligent taking by a trustee of insufficient security upon an
investment of trust funds, is no ground for recovery by the person who
entrusted them for investment, under a complaint alleging a conversion of
the funds by the trustee. (King v. Mackellar, 94 N. Y., 317.)

(913) A negligent trustee is not entitled to commissions. (Cook v. Lowry,
95 ¥. ¥., 103.)
(Trustees for Bondholders.)

(914) A trustee for bondholders under a railroad mortgage who has bid in
the road on foreclosure, and is operating it for their benefit, is to be regarded
as a common carrier of the goods shipped over it. (Rogers v. Wheeler, 43
N. Y., 598.)

(Trustees of Municipal Bodies. See Pub. Off., Title [/1.)
Physicians, (See Professional Men.)
Pledgees.

(915) Where the trustees of a bank fail to exercise proper supervision over
its officers, whereby loss results to a pledgor of securities pledged by him to
it, the bank is responsible for the loss. (Cutting v. Marlor, 78 N. Y., 454.)

'(916) A pledgee of warehouse receipts for perishable property owes no
duty to the pledgor to take measures to prevent its decay froin causes
not proceeding from his own acts. (Willets v. Hatch, 132 NV. Y., 41.)

Professional Men.
(Architects. )

(917) An architect or builder is only answerable to his employer for his
negligent construction of a private building. (Mayor of Alb. v. Cunliffe, 2
MW. Y., 165.)

(918) In an action by the owner of a building against an architect to re-
cover damages, alleged to have been sustained in its building by reason of
defects in his plan, it is necessary to show not only that the plan was
defective, but also that it was followed, (Lake v. McElfatrick, 139 NV. Y., 349.)

(Doctors.)

(919) In an action against a surgeon for malpractice it is material whether
at the time he treated the patient he was or was not reputed to be, or was:
or was not, a skillful surgeon. (Carpenter v. Blake, 50 NV. Y., 696.)

(920) A physician who renders professional services to a person, is bound
to do so with skill and knowledge, without reference to the fact whether
there is any contractual relation between them. (Dudois v. Dechert, 130 WV.
Y., 325.)

(921) A physician who is paid to treat the poor without charge to them,
does not render them gratuitous services. (/z.)
604 Cases CopIFIED. [Cuap. II.

(922) The test of malpractice is not the existence of gross culpability, but
the absence of proper care, (Linkv. Sheldon, 136 N. V., 1.)

 

(923) The gist of an action to recover damages for giving a poisonous
medicine by mistake is negligence. (4/an v. State S. S. Co., 132 WV. Y., 91.)

(Lawyers.)

(924) Where a question of law has not been authoritatively decided in
the court of last resort, and is not free from difficulty, it is not negligence
in an attorney at law to give professional advice at variance with the
opinion of a lower court. (Bowman v. Tallman, 40 How. Pr., 1.)

(925) An attorney cannot agree to render services and advance disburse-
ments in asuitas an inducement to a person to place a claim in his hands
for suit. (Coughlinv. N. V.C. & H.R. R. R. Co., 71 NV. Y., 443.)

(926) He who is his own lawyer has a fool for his client. (aguiss v.
Hagner, 72 N. Y., 605.)

(927) It is negligence in an attorney, employed to invest money on bond
and mortgage, to invest itin small sums secured by bonds, the obligors of
which are insolvent, and by mortgages on real estate upon which there are
already mortgages for a large amount. (Whitney v. Martine, 88 WV. Y., 535-)

See Notaries,

See Stewart v. Morss, 79 N. Y., 629.

Purchasers.

(928) A purchaser of property from an insolvent debtor owes no duty
to the latter’s creditors, of active diligence requiring him to suspect or
investigate the motives of the debtor in making the sale. (Parker v. Conner,
93 4. ¥., 118.)

Purveyors. (See Special Carriers.)
Receivers, (See fersons in Trust Relations.)

Reporters.

(929) It is the duty of reporters of judicial decisions to state what judg-
ment was rendered at eachstage of the action, to give a concise statement
of the material facts therein, and to embody in terse propositions the exact
points ruled,

Safe.Deposit Companies, (See Bailes.)
Savings Banks, (See Zanés.)
Searchers.

(930) A tax searcher is responsible ‘for the damages occasioned by his
failure to return an assessment on the premises mentioned in ‘the search,
levied against the person who owned them at the time the proceedings
for the assessment were begun, even though he did not own them when
the assessment was confirmed, and the assessment had to be made to the
“owner or occupant.” (“orange v. Mix, 44 N.Y, 315.)

Sellers. (See Vendors.)
Caus. Nec. ] CasEs CopIFIED. 605

 

Shopkeepers.

(931) Owners of stores, which apparently have several entrances from the
street, must indicate in some appropriate way by which entrance outsiders
should come in, if any one of the apparent entrances is not really intended
assuch. (McKickard v. Flint, 114 N. Y., 222.)

(932) The omission to put brass plates or rubber pads on a stair-case
in a store is not negligent. (Larkin v. O'Neil, 119 NV. Y., 221.)

(933) The placing of alay figure on a broad stair-case in a store is not
negligent. (/d.)

(934) A shopkeeper is under no duty to his customers to keep the
passage-ways at the back of his shop, where they are not invited, free
of obstructions. (Hart v. Grennell, 122 N. Y., 371.)

(935) It is the duty of shopkeepers to take care of customers’ articles,
which they lay one side while trying on garments. (Bunnell v. Stern, 122
WN. ¥., 539-)

See also Odell v. Solomon, Art. IV., sub. nom., Lessees.

Special Carriers.
( Purveyors.}

(936) A gas company whose interest it is to discover whether a leak of
gas in the customer’s house is on its side of the meter must conduct
carefully any investigation it makes as to the whereabouts of the leak.
(Zannen v. Albany Gas Light Co., 44 NV. Y., 459.)

(937) A person who furnishes steam in a building for the purposes of
heat and motive power through pipes from a central reservoir or station
is not an insurer against damage from escaping steam. (Reiss v. M. Y,
Steam Co., 128 N. Y., 103.)

(Ferry Companies as to Animals in Owner's Charge.)

(938) A ferry company is bound to maintain its guard-chains in proper.
condition to keep animals from going overboard. (Clarkv. Union Ferry
Co., 35 NV. Y.,485. Wyckoff v. Queens Co. Ferry Co., 52 N. Y., 32.)

(Tow-ers.)

(939) A contract of towage at owner’s risk does not release the tow-er from
damages occasioned by his gross negligence. (Alexander v. Greene, 7 Hill,

533-)
(940) Persons engaged in the business of towing are not common
carriers. (Wells v. Steam Navigation Co., 2 N. Y., 204.)

(941) A contract to tow at owner’s risk does not release the tow-er from
the damages occasioned by his gross negligence. (/@.,8 M. Y., 375.)

(942) The amount of care which a steamboat with a tow meeting another
steamboat with a tow is bound to observe toward both tows is more than
a mere blind obedience to the general rules of navigation. (Cooter v,
Eastern Tr. Co., 75 N. Y., 116.)
606 Cases CODIFIED. [Cuape. II.

 

(943) Itis negligent for a tow-er to take a tow tosea in the face of a storm
blowing toward shore, after notice thereof given by the cautionary signals
of the signal service. (White v. Old Dominion S. S. Co., 102 N. Y., 660.)

Steam Cos, (See Purvyors.) |
Stockholders. (See Members of Corporations &c.)

Tow-ers. (See Special Carriers.)
Trustees, (See Persons in Trust Relations.)

Users of Pers. Prop. of Others. (See Owzers.)

Vendors.

(944) A seller of poisonous drug owes to every person into whose hands
it may lawfully come as a medicine, a duty not to label it with the name
of aharmless drug. (Zhomas v, Winchester, 6 N. Y., 397.)

(945) The rule as to sales of deadly poisons does not apply to the sales of
defective machines not necessarily dangerous, (Loop v. Litchfield, 42 N. Y.,
351)

(946) When the seller of a medicine verbally warns its purchaser that it
is poisonous and the latter takes the medicine in violation of verbal
directions, a failure to write ‘‘ poison”’ on the bottle containing it does not
make the seller answerable for causing the purchaser’s death. (Wohlfahrt
v. Beckert, 92 N. Y., 490.) As to liquor, see Chap. X, sud. nom., Stat. Causes.

Warehousemen. (See Zailes.)

Cross REFERENCES.

As to defendants not mentioned in the foregoing article, see
the following titles and articles of this chapter:
For Boards, see Tit. III.
“* Common Carriers, see Tit. IV, Art. II,
“« Lessees, see Tit. IV, Art. IV.
‘* Masters, see Tit. IV, Art. L
“* Municipalities, see Tit. II.
‘© Occupants of the Highway, see Tit. IV, Art. III.
a ee “© Real Prop., see Tit. IV, Art. IV.
“ OWners « « Pe Fee Pane ree
** Quasi Mun. Bodies, see Tit. III.
“* The State, see Tit. I.
‘* Users ofthe Highway, see Tit. IV, Art. IIT.
** Users of Real Prop., see Tit. IV, Art. IV.
“« Wharfingers, see Tit. IV, Art. IV.
Cont. Ne. ] Cases CopiFIED. 607

 

CHAPTER III.

CONTRIBUTORY NEGLIGENCE.
TITLE I.—In GENERAL.

§ 149. A person, who assented to an act, can not claim that
he suffered damage by reason of it.

Or: Volenti non fit injuria.

§ 150. A person is deemed to have assented to an injury
when his own negligence contributed to it.

) Or: The rule, volenti non fit injuria, applies to the case of a pened
who charges that an injury, to which his own negligence contributed,
was caused by the negligence of another person.

§ 151. Negligence on the part of one person can not, inlaw,
be said to have resulted in injury to another, if any negligence
on the part of the latter contributed to that injury.

Under the rule in this state that contributory negligence in ‘‘negli-
gence”’ suits is not matter of defense but goes to the cause of action,
and that a plaintiff must prove that negligence on defendant’s part,
and no negligence on his own part, produced the injury, the statement
of the principle, which leads to that rule, should be made in some such
language as that just given. It may be given in several ways: Negli-
gence of a defendant is not actionable, where negligence of the plaintiff
contributed to the injury: Ifa person’s own negligence contributes to
his injury, no negligence on the part of the defendant, however much
it may have really concurred in producing the injury can, in law, be
said to have caused it: In order that an injury may be an actionable
une, it must have been caused solely by the negligence of a person or
persons other than the one injured: Where negligence on the part of
two persons concurs in producing an injury to either, it is damnum
absque injuria.

§ 152. It is not negligent to put one’s self in danger to save
human life.

§ 153. Itis not necessarily negligent for a person to place
himself in danger, when he wishes to save property, or acts from
any other commendable motive.

§ 154. The degree of care, which a person should use to avoid
being injured, depends upon his age and capacity, upon the
situation which requires action, upon the time within which
action must be taken, and upon the expectable results thereof..

§ 155. Greater care is required from adults than from children,
from persons of intelligence than from the feeble minded, in
608 Cases CopIFIED. [Cuap. III.

 

situations of obvious danger than in those where it is not
apparent, when there is ample time to deliberate than when
there is not, and when the expectable consequences from mis-

taken action are serious than when they are not.
This section is inserted upon the theory that the degree of care to
be used is a question of law rather than of fact.

§ 156. When a person is confronted by danger from both of
two lines of action, one of which he must take, his choice of
either is not negligent.

§ 157. When a person is confronted by danger from one
course, and merely slight inconvenience from another, it is
negligent for him to pursue the former course.

§ 158. A man mustdo that which, in all reason he can, to avoid
an injury to himself, or to persons under his care.

COLLECTED FROM THE FOLLOWING DECISIONS : .

In General.
(947) Negligence of a plaintiff, to prevent a recovery need not directly
contribute to the injury. (Button v. Hudson Riv. R. R. Co., 18 N. Y., 248.)

(948) An injury must be caused not merely essentially but solely by the
negligence of defendant. (Grippenv. N. Y. Cent. R. R. Co., 40 NM. V., 34.)

(949) Negligence which does not contribute to an injury is not contri-
butory negligence. (Haley v. Earle, 30 N. Y., 208; Blanchard v. N. F. St,
Co., 59 NV. Y., 292; Webster v. Rome, W. & Og. R.R. Co., 115 M. Y., 112.)

(950) It is no answer toa charge of contributory negligence, that an injury
could have been prevented, if defendant’s appliances had been in order,
(Owen v. Hudson Riv. R. R. Co., 35 NV. Y., 516.)

(951) The failure of an injured person to take a step, which if taken
would have reduced the damages, but which he in good faith supposed it
was too late to take, is not negligence. (Zeonard v. N. Y., Alb, & Buff.
E. M. Tel. Co., 41 M. Y., 544.)

(952) The degree of care, the omission of which would constitute negli-
gence, is to be graduated according to the age and capacity of the individual
from whom it is required. (Zhurberv. Harlem Bridge, M. & F. R. R. Co.,
60 NV. ¥, 326.)

(953) It is not negligent to do that which persons are in the habit of doing
with safety and without imminent peril. (Harris v. Uebclhoer, 75 N. Y., 169.)

(954) It is not necessarily negligent for a person to refuse to have his
injured leg amputated, even though it would improve his chance of life.
(Sullivan v. Tioga R. R. Co., 112 MV. Y., 643.)

(955) Where a defendant gives evidence to show that danger from an
obstacle was not obvious to its agent whose duty it would be to remove the
obstacle, it cannot claim that the plaintiff was as matter of law guilty of
negligence in not avoiding it. (Ambler v. Town of Walkill, 132 N. Y., 222.)
Cont. Nuc. ] Cases CODIFIED. 609

 

Choice.

(956) It is not negligent to attempt to jump from a train in order to escape
acollision. (Buelv, NM. Y. Cent. R. R. Co., 31 N. Y., 314.)

(957) Where a person balancing an expectable danger against an actual
inconvenience, decides to run the risk of the former, he can not visit the
consequences upon him whose negligence caused his dilemma, (Morrison
v. Erie Railway Co., 56. Y., 302.)

(958) Itis not negligent for a person, in endeavoring to escape immediate
danger, to act instinctively and without calm deliberation. (Coulter v.
Am. Merch. Un, Ex. Co., 56 N. Y., 585.)

(959) When a person, confronted by impending danger, chooses a means
of escape, which persons of ordinary prudence might choose, the fact that
he would not have been injured, if he had remained still, does not prove
him to have been negligent in endeavoring to escape. (Zwomley v. Cent.
Park, N. & E, R.R. R. Co., 69 N. ¥., 158.)

(960) Jumping from a wagon to avoidimminent danger is not necessarily
negligent. (Dyer v. Erie Railway Co., 71 N. Y., 228.)

(g61) A person, who in a situation of danger pursues a course which
persons of prudence and self-possession would adopt under the same
circumstances, is not negligent in so doing. (Salter v. Utica G& Bl, Riv. R.
&. Co., 88 NM. Y., 42.)

Saving Life or Property.

(962) It is not negligent for a person to put himself in danger when his
object is to save human life. (Zckert v. Long Lsland R. R. Co., 43 N. Y.,
502.)

(963) Placing one’s self in danger to save one’s property in an emergency
is not necessarily negligent. (Wasmer v. Del., Lack, & W.R. R. Co., 80
NV. Y., 212.)

(964) A person who steps on a railroad track to save human life is not a
trespasser. (Spooner v. Del. L. & W. R. R. Co., 115 NM. Y., 22.)
This must stand upon the theory that the right of property in land is
only a conventional right.

(965) It is not contributory negligence for a parent to plunge into the
water to save his child. (Gibney v. The State, 137 NV. Y.,1.)

(Chap. [1[—Continued.)
TITLE IL—In DETAIL.
ARTICLE I.—SERVANTS,

§ 159. Employees assume all the risks of theiremployment,
except those which arise out of the master’s own negligence.
610 Caszs CopiFIEp. [Cuap. III.

 

§ 160. While an employee has, in the absence of knowledge
to the contrary, the right to rely upon a presumption that the
master has seen to it that the place where he works is safe, the
machines he tends and the tools and appliances he works with
in good order, his co-servants competent and sufficient in
number, and that proper and sufficient rules for the conduct of
the master’s business with safety to himself so far as may be,
have been promuigated, and their observance required by the
master, yet if in any of these particulars an employee knows
that the reverse is the fact, or if he has knowledge of anything
which ought fairly to apprize him thereof, he works at his own
tisk, if he continues to work without any assurance from the
master that proper steps will be taken for his protection.

§ 161. The law as to how far the servant may rely on the
master’s promises, which are not followed by speedy perform-
ance, is not yet settled.

§ 162. The law as to how far the servant assumes the risk of
other servants breaking the master’s rules can not be considered
as settled until the conflict between the rule in Flike’s case, and
that in Slater’s case, is ended.

§ 163. The fact that a person is in the service of another
affords no reason why he should be less vigilant than otherwise
for his own safety, as to matters which he can control.

§ 164 The alternative between obeying orders or losing
employment is to be taken into account in determining whether
a servant has been negligent in continuing to work with knowl-
edge of some failure on the part of the master to perform his
duty, which endangers such servant.

COLLECTED FROM THE FOLLOWING DECISIONS,

\ GROUPED UNDER THESE HEADINGS :
Unsafe Places. Reliance on Master.
| ae Obedience.
ools and Appliances. Disobedience,
Rules. Knowledge.
Deing Dangerous Things. Memory.
Omitting Precautions. Minors.

Unsafe Places.

(966) In the absence of instructions to the contrary, it is not negligent for
a head brakeman on a freight train tu ride on the engine when his duties
do not call him elsewhere and the custom, known to his superiors, is to
ride there. (Sfrong v. Boston & Aut. K. R. Co., 58. ¥., 56.)
Cont. Nuc. } Cases CopDIFIED. 611

 

(967) Seméble. It is not contributory negligence for an employee to ride
ona freight elevator. (Stringham v. Stewart, 100 NM. Y..516. See note to
this case on page 299.)

(968) A servant does not assume the risk of the safety of a platform
furnished by his master, where its defect is not apparent and he is told it
issafe. (Benzing uv. Steinway & Sons, 101 NV. Y., 547.)

(969) The danger of catching one’s foot in a frog is an obvious risk for
aswitchman. (dppelv. Buffalo, N. Y. & Phila. R. R.Co., 111 WN. Y., 5500)

(970) A servant newly employed, and unacquainted with the locality
where he is set to work at night, does not assume the risks thereof, which,
however obvious in the daytime, are to him unknown. (Fredenburg v.
Northern Cent. R. R. Co., 114M. Y., 582.)

(971) A person who steps upon a defective cover of a hole, knowing of
the defect, is negligent. (MZcQuigan v. Del., Lack. & W.R. R. Co., 122 NM. Y.,
618.)

(972) The fact that a tell-tale of a bridge is out of order is to be taken
into account in determining whether a brakeman on top of a train was
negligent in allowing himself to be hit by the bridge. (Wallace v. Cent. Vt.
R. RR. Co., 138 M. Y., 302.)

Machines.

(973) When amachine furnished by the master for the servant’s use breaks,
it is negligence in the servant to omit to inform the master thereof.
(Powers uv. N.V., Lake E, & W. RL R. Co., 98 N. Y., 274.)

(974) Where a machine furnished by the master for his servant’s use is,
though old-fashioned, not of defective construction, nor out of repair, and
the absence of a suggested appliance for safety does not make its use with
care absolutely dangerous, the servant, using it with full knowledge,
assumes the risk of such use. (Sweeney v. Berlin & Fones Env. Co,, 101
N. Y., 520.)

(975) A servant, who knowingly works near an insufficiently guarded
machine, the danger from which is obvious, assumes the risk. (Shaw v.
Sheldon, 103 NV. Y., 667.) 7

(976) A person who is attending a defective press, should not attempt
to adjust the thing to be pressed while the press is in motion, or by putting
his hand on the top of such thing when he may do so by putting his hand
onitsside. (Hartwig v. Bay State S, & L.Co., 118 NM. Y., 664.)

(977) If a servant having notice that the master’s machine is out of order,
places his hand upon it so that it may be injured by a start which may
happen because of the defect, he is guilty of negligence. (Odel/v. NV. Y.C.
& H.R. R. R. Co., 120 N. Y., 323.)

Tools and Appliances.

(978) Where an appliance furnished by the master for the servant’s use
is asimple one, any defects in which are fully understood by the servant,
the servant takes the risk of such defects. (Marsh v. Chickering, 101 N. Y.,

396.)
612 Cases CopIFIED. [Cuap. III.

 

(979) Where a servant knows of the irregular action of an appliance he
is using, he takes the risks of the results thereof, (Hart v. Naumburg, 123
4. Y., 641.)

(980) Where an employee has the selection of an appliance to use in his
master’s work from a number of good and bad ones, he takes the risk of
his own selection of one which he knows is defective. (Shiéedds v. N. ¥. Cy
& If. Rk. RR. Co., 133 M. Y., 557-)

(981) A servant takes the risk that proper appliances, provided by the
master, will be properly applied or used by his servants, (Hudson v. Ocean
S. 8. Co. of S., 110 MV, V., 625.)

Rules.

(982) The risk of collision under running regulations is assumed by
the servant. (Wrightv. N. Y. Cent. R. R. Co., 25 N. V., 562.)

(983) Knowledge by a servant of the master’s rules does not cast upon
the servant the risk of danger arising out of a situation which those rules
failed to provide for. (Dana v. NV. Y. C.& H.R. R. R. Co., 92 N. Y., 639.)

(984) It is not negligent for a servant to prosecute his work in reliance
upon rules for protection agreed upon between him and some of his fellow-
servants, though not to his knowledge brought to the notice of all the
servants who may, if those rules are not followed, cause him injury.
(Abel uv, Del. & Hud. C. Co., 103 N. Y., 581.)

(985) Although a master may owe to an employee a duty to guard him by
a duly promulgated rule from an expectable danger, and may fail to perform
that duty, yet if the employee’s own experience tells him what to do to
avoid it, he cannot visit upon the employer the consequences to himself
of his failure to do what his own experience dictated. (Le Croyv. MW. Y.,
Lake Erie & W. R. R. Co., 132 NV. Y., 570.)

(986) Where an injury to an employee is due to his failure to obey a
rule published in a book by the master for the use of his employees, the
fact that the master has not furnished the book to that particular employee
is immaterial, if he knew of its existence, had access to it, and knew it
contained the rules for his guidance. (/@.)

Doing Danrcerous Things.

(987) Aservant run over while walking along the master’ s track to his
work is to be regarded, if rightly there, as engaged in the discharge of his
work, or if not so regarded then asa trespasser. (Boldt v. N. Y. Cent. R.
R. Co., 8 NV. ¥., 432.)

(988) It is not negligent for a brakeman to couple cars while in motion,
(Plank v. N.Y. C. & A. R. R. R. Co., 60 N. Y., 607.)

(989) A brakeman coupling cars near sluices takes the risk. (DeForest v.
Fewett as Rec’r, 88 N. Y., 264.)

(990) It is negligent for a brakeman in coupling cars to walk on a track
behind a backing engine, (Finwellv. Del., L. & W.R. R. Co., 129 N.Y., 669.)
(991) If a servant, of his own volition and without any necessity connected

with his duties, puts himself in a place uf danger, he does so at his own
visk. (Gibson v. Erie Railway Co. 63 NV. Y., 449.)
Coxt. NEG. ] Cases Copirircp. 613

 

(992) It is negligent to endeavor to escape from an on-coming train by
fleeing before it on a hand-car, instead of lifting the hand-car off the track.
(Powersv. N. Y., Lake Erie & WR. R. Co., 98 N. Y., 274.)

(993) A servant, who undertakes to do a hazardous thing in his master’s
business, without his master’s directions, by methods not sanctioned by
him, and with instruments not provided by him for such a purpose, does so
athis own risk. (Cahill v. Hilton, 106 MN. Y., 512.)

(994) An employee, who does his work in a way against which he is
warned as dangerous, does it at his own risk. (Moeller v. Brewster, 131 N.
Y., 606.)

Omitting Precautions.

_ (995) The omission of a car-repairer to set the brakes on cars which he
is repairing is not necessarily negligent. (Murphy v. N.Y. C. & H.R. R.
R. Co., 18 MN. Y., 527.)

Reliance on Master.

(996) Where, by agreement, the master is to warn the servant of approach-
ing danger, it is not negligent for the servant to omit to be on the look-
out. (Bradleyv. N.Y. Cent, R. R. Co., 62 N. ¥., 99.)

(997) A servant cannot rely upon his master’s promise to give warning if
he sees anything which shows that the promise has been broken. (Leonard
u. Collins, 70 N. Y., 90.)

(998) A miner has the right to rely upon his employer protecting him
from falling rocks, while prosecuting his work in ignorance of any special
danger. (Pantzarv. Tilly Foster I. M. Co., 99 N. Y., 368.)

Obedience.

(999) It is not negligent for a servant to bein a spot where his duties
callhim. (Sammon v. NV. Y. & H.R. R. Co., 62 N. ¥., 251.)
* (1000) The rule that a servant who knowingly operates a defective machine
is guilty of contributory negligence (or assumes the risk), does not apply
to sailors who are subject to punishment for disobedience of orders.
(Eldridge v, Atlas S. §. Co., 134 N. Y., 187.)

(1001) It is not necessarily negligent for a servant, under his master’s
orders, to work in a trench, whose sides have not been protected from
caving in. (Stuber v. McEntee, 142 N. Y., 200.)

Disobedience.

(1002) If a collision between two railroad trains would not have happened,
had the engineer of one of them not been running at a forbidden rate of
speed, his doing so contributed to it so far as injury to himself is concerned
even though the direct cause of the collision was due to a mistake of a
telegraph operator. (Sutherland v. Troy & Boston R. R. Co., 125 NV. Y., 737.)

Knowledge.

(1003) The fact that a servant can see a defect in a machine is not enough
as matter of law to charge him with the risk of using it, if he did not know
that it was a dangerous defect. (Kain v. Smith, 89 N. Y., 375.)
614 Casrs CopDIFIED. (Cuap. III.

(1004) A servant is not bound to examine a platform where he is set to
work, to see if it is safe, where it is apparently so. (Benzing v. Steinway &
Sons, 101 NV. Y., 547.)

(1005) A servant who is employed {o work in a bin to keep an orifice at
its bottom clear so that its contents may run through, assumes the risk of
injury from a sudden subsidence of its contents, which he knows may
happen atany moment. (Bohn v. Havemeyer, 114 N. Y., 296.)

(1006) Where a structure is being erected by methods which are not suffi-
cient to prevent its falling apart, a servant is not guilty of negligence in
working upon it, if his knowledge of the method is not sufficient to apprize
him of its defect. (Davidson v, Cornell, 132 N. Y., 228.)

(1007) An employee who wheels a barrow in the dark over anarrow plat-
form, in which he knows a depression has been worn, when he might have
a light if he wanted it, assumes the risk of falling off. (Kaarev, Troy Steed
& Iron Co., 139 WV. Y., 369.)

Memory.

(1008) The knowledge of a brakeman of the unsafe condition of a place
where he is ordered to couple cars is not, where he is required to couple the
cars while in motion, to be presumed to be so present in his mindas to make
him guilty of contributory negligence in obeying the orders. (Plank v. N.
¥.C.&@ H.R. R. R. Co., 60 N. Y., 607.)

(1009) A brakeman on afreight train must bear in mind the bridges under
which he knows his train is to pass. (Williams v. Del., Lack, & W.R.R,
Co., 116 NV. Y., 628.)

(1010) Ifa brakeman’s duty calls him to be on the top of a train watching
to see that it does not break in two in going round a curve, he is not bound
to bear constantly in mind the exact locality of the train with reference to
bridges. (Wallace v. Cent. Vt. R. R. Co., 138 N. Y., 302.)

Minors.

(1011) A minor old enough to work as a brakeman is old enough to assume
‘the risks of such an employment. (DeGraafv. M. Y. C. & H.R. R. R.Co.,
"76M. Y., 125.)

; (10%) A boy set to do something on a machine, which is not dangerous in
itself, or beyond his powers, takes the risk of slipping while doing the work,
(Buckley v. Gutta Percha & R. Mfg. Co., 113 N. V., 540.)

(1013) It is negligent for a boy to place his fingers under a die in
disobedience of his master’s rule duly made known, and in the absence of
any reason therefor other than a desire to get through an allotted task more
quickly. (Czdlen v. National Sheet Metal R. Co., 114 NV. Y., 45 )

(1014) The failure of a master to guard a machine as required by the
statute cannot be availed of by a meddlesome minor. (White v. Witteman
Lith, Co., 131 N. ¥., 631.) : 1
Cont. NEG. | Cases CopIFIED. 615

 

Cross- REFERENCES.

See various subdivisions under Art. I of Tit. IV, of Chap. II,
Masters ; also Art. VI, of this title, Miscel. Plffs.; also Chap.
IV, Ques. of Fact ; also Chap. V Defences.

(Chap. LIL, Tit. [I—Continued.)
ARTICLE II—PASSENGERS.

§ 165. Passengers, in placing themselves in the care of a
carrier, must not allow themselves to feel that they may rely
upon his care, so far as to forget that care is also required from
them.

§ 166 Passengers must not, in an eager desire to get to their
destination, thrust themselves into danger.

§ 167. Passengers must obey the reasonable regulations of
the carrier, duly made known to them,

§ 168. Itis negligent for a passenger to ride unnecessarily
upon a car platform, or in a baggage, wood or freight car in
violation of the printed regulations of the carrier, duly posted.

§ 169. It is negligent for a passenger to walk upon oralonga
railroad track, except whereit is necessary for him to do so in
the accomplishment of his journey.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS:

References to Statutes. Seats.

Before Getting On. Preparing to Get Off.
Risk as to Vehicle. Getting Off.

Getting On. After Getting Off.
Riding on Platform. Miscell. Acts.

References to Statutes.

(1015) “No railroad corporation shall be liable for any injury to any pas-.
senger while on the platfarm of a car, or in any baggage, wood or freight
car, in violation of the printed regulations of the corporation, posted up at
the time in a conspicuous place inside of the passenger cars, then in the
train, ifthereshall beat the time sufficient room for the proper accommo-
dation of the passenger inside such passenger cars.” (‘+ Zhe Railroad Law,”
Laws of 1890, Chad. 565, § 53, unaff. by Am. of Laws of 1892, Chap. 676. .
For original act, see Laws of 1850, Chap. 140, § 46. See also Penal Code, §.
426, and Laws of 1878, Chap. 261.) yk
616 Cases CopIFIED. (Cuap. ITT.

 

(1016) ‘* No person other than those connected with or employed upon the
railroad shall walk upon or along its track or tracks, except where the same
shall be laid across or along streets or highways, in which case he shall not
walk upon the tracks unless necessary to cross the same.” (/d.)

Before Getting On.

(1017) It is not necessarily negligent for a passenger to walk between asnow.
pile and a slowly-moving car for the purpose of getting on its front platform.
(Dixon v. Brklyn City & Newtown R. R. Co., 100 MN. Y., 170.)

(1018) Walking by the side of a railroad track, and within the sweep of a
train known to be due, is negligence. (Scot/ v. Penn, R. R. Co, 130 NV. Y.,

679.)
Risk as to Vehicle.

(1019) Where a vehicle of a common carrier, though not designed tocarry_
passengers, is used for that purpose, it,is not negligence for a passenger to
rideinit. (Zdgertonv. N. Y. & Harlem R. R. Co., 39 NV. Y., 227.)

(1020) A passenger is not bound to guard himself against an improper con-
struction of a railroad company’s car or platform of which he has no
knowledge. (Dobiechi v. Sharp, 88 N. Y., 203.)

Getting On.

(1021) It is negligent for a passenger to attempt to board a street-car on
the side next the other track in plain sight of a car approaching on it and not
far off. (Davenport v. Brooklyn City R. R. Co., 100 NV. Y., 632.)

(1022) It is not necessarily negligent for a person to attempt to get on the
front platform of a moving street-car. (Butlerv. Glens Falls Gc. St. R. R,
Co., 121 NV. Y., 112.)

(1023) It is not negligent fora man in good health and unencumbered to
attempt to enter a slowly-moving street-car. (.Woylan v, Second Ave. R. R.
Co., 128 N. Y., 583.)

(1024) If there is peril from a passing vehicle in boarding a slowly-moving
street-car, the passenger takes the risk. (/d.)

(Street-cars.)

( Trains.)

(1025) It isnegligent for a passenger to attempt, without sufficient reason, to
board a train before it has come toastop. (/Aillips vu. Renselaer & Sar. R.
R. Co.#49 N. Y., 177.)

(1026) A passenger, who, after the train has started, attempts to board it in
spite of the opposition of the guard, does so at his own peril. (Solomon v.
Manhattan Railway Co., 103 N. Y., 437. Card v. Manhattan Railway Co., 103
XV. Y., 670.)

(1027) Where a train is moving slowly past a station at whichitshould stop,
the notification of its conductor to a passenger to get onif he is going, does
not acquit the passenger of negligence in endeavoring to get on, in the
absence of any impelling reason other than one of slight inconvenience in
having to go by a latertrain. (Hunter v. Cooperstown & Susg. Vail. R, R.
Co., 112 N. Y., 371.)
Cont. NEc. | Cases CODIFIED, 617

 

(1028) Where a passenger, who is in a safe position and under nostress of
circumstances, attempts to get on a train which is moving, no matter how
slowly, and the situation is obviously such that a mis-step may have serious
results, he is guilty of negligence, (/d., 126 V. Y,, 18.)

Riding »n Platform.

(Street-cars.)

(1029) It is not negligent in a boy to ride on the front platform of astreet-car,
when pushed there by acrowd of which he has become a part through giving
up his seat by the conductor’s orders. (Sheridan v. Brooklyn City & New-
town R. R, Co., 36 N. Y., 39.)

(1030) It is not negligent for a passenger to ride on the front steps of a
crowded street car with the consent of the conductor. (Clark v, Eighth Ave.
R.R. Ca,, 36 NM. V., 135.)

(1031) Itis notnegligence in a passenger on a street-car, after notifying the
person in its charge to stop, to get on the step so as to get off when the car
comestoastop. (Mchols v. Sixth Ave. R. R. Co., 38 N. Y., 131.)

(1032) It is not negligent for a passenger to ride with the assent of the
conductor on the platform of a crowded street car. (Ginna v. Second Ave.
R. R. Co., 67 NM. Y., 596.) :

(1033) A passenger riding on the platform of a street-car is not bound to
hold on to the railing. (Zd.)

(1034) It is not negligent for a passenger to ride on the front platform ofa
street-car, if no notice is posted up forbidding it, and the carrier permits it,
(Nolan v, Bklyn City & N. R. R. Co., 87 NV. Y., 63.)

(1035) A person on the platform of a street-car is not bound to be on the
lookout for collisions with other ‘vehicles. (Connolly v. Knickerbocker Ice Co.,
114M. ¥., 104.)

(Zrains.)

(1036) A railroad company can claim noexemption under § 46 of the general
railroad law, as to passengers riding on the platform of cars, where it
undertakes to carry in any one car more persons than it can accommodate
with seats, and who have no opportunity before the train is under way to
find seats in other cars. (Colegrovev. N.V.&@N. H.R. R. Co., 20 N.Y., 492.)

(1037) The statutory notice prohibiting passengers from riding on car
platforms, does not apply to a case where the passenger is justifiabiy on the
platform. (Buelv. N.Y. Cent. R. R. Co., 31 NM. Y., 314-)

(1038) It is not contributory negligence for a passenger to ride on the plat-
form when the company fails to furnish him with a seat. (W#tlis v. Long
Isl. R. R. Co., 34. NV. Y., 670.)

(1039) [tis not necessarily negligent for a passenger to stand on the car
platform, when he has been invited by a railroad company to board itstrain,
andon doing so finds no seat. (Werle v. Long Isl. R. R. Co., 98 NV. Y., 650.)

Seats.
(1040) A passenger is not obliged to take on himself the decision of the
_ question whether a seat is improperly occupied. (Willis v. Long Ist. R. R.
Co, 34 NW. Y., 670.)
618 Cases CopIFIED. [Cuap, IIT.

 

(1041) A passenger is not bound to go from car to car in search of a seat
while the train is moving so fast as to make it hazardous to do so, (/.)

(1042) A passenger on a street-car who, without necessity, voluntarily
leaves his seat and puts himselfina position outside the car, in consequence
of which he receives an injury, is chargeable with contributory negligence.
(Coleman v. Second Ave. R. R. Co., 114 M. Y., 609.)

(1043) A passenger, by surrendering a seat ina crowded car to one less
able than himself to stand, does not contribute to an injury which he
would not have received if he had been seated. (Lehy v. Steinway & HF,
Ft, R, R. Co., 118 MN. Y., 556.)

Preparing to Get Off.

(1044) It is not negligent fora passenger to attempt to leave a carin order
to escape an impending collision. (Buelv. NV. Y, Cent. R. R. Co., 31 M. Y.,
314-)

(1045) It is not negligent for a passenger, when a train is nearing a depot,
to arise from his seat before it stops, so as to prepare for leaving it.
(Wylde v. Northern R. R. Co., 53.N. Y., 156.)

(1046) A passenger is not bound to notify the conductor of his intention to
get off a train at a station. (McDonald v. Long Ist. R. R. Co., 116 N.Y., 546.)

(1047) It is not negligent for a passenger, if the brakeman neglects to
open the car door when the train is drawing up to his station, to open
the door himself and stand in the doorway ready to get off. (Baker v,
Manhattan R. R. Co., 118 N. Y., 533-)

Getting Off. (From Boats.)

(1048) Itis not negligent for passengers ona boat to rely on the signal from
its managers that they may land. (Ferris v, Union Ferry Co., 36 N.Y., 312.)

(From Street.cars.)

(1049) In the absence of notice to the contrary, it is not negligent for a
passenger to alight from the front platform of a street-car which has
fully stopped. (Mulhado v, B'klyn City R. R, Co., 30 N. Y., 370.)

(1050) A passenger’s notice to a car driver to stop the car is, if obeyed, as
effectual as notice to the conductor, to protect him while alighting. (/d.)

(From Trains.)

(105m) When the following of another person’s direction is relied on to
answer the charge of contributory negligence, it must be shown that the in-
jured person had reason to suppose that such other person had better means
of knowledge as to whether it would be safe to follow such direction,
(Filer v. N.Y. Cent. R. R. Co., 59 N. V., 351; 68 /d., 124.)

(1052) A passenger alighting from a moving train under no other impulse
than the desire not to be carried past his station, does so at his own risk.
(Burrows v. Erie Railway Co., 63 N. Y., 556.)

(1053) A passenger using due diligence to get oft a train ata station is not
bound to observe whether the conductor seeshim. (McDonald v. Long Isl.
KR. R. Co., 116 N. Y., 546.)
Cort. Nc. ] Cases CopiFizp. 619

 

(1054) A passenger, alighting from a train at a station isnot bound to keep
hold of the car-rail till he reaches the ground. (/¢.)

After Getting Off.

(1055) It isnegligent for a passenger, on alighting from a train on the side
of the opposite track to omit to look for a train he knows is due about that
time on that track. (Gonzales v. N. Y.& Harlem R. R. Co., 38 N. Y., 4403
see S, C., and Appeal, 39 How. Pr., 407.)

(1056) A passenger, who without inducement from a railroad company
stands, after alighting, on the track behind a car, does so at his own risk.
(Van Schaick v, Hudson Riv. R. R. Co., 43 N. Y., 527.)

(1057) Ifa railroad company fails to provide a convenient passage through
snow from its depot to the highway, a passenger may, in using the track as
a convenient path of exit, presume that one part of the track is as safe as
another, and as much for the use of passengers. (Hoffmanv. N. Y. Cent. &
H.R. R. R. Co., 75 N. Y., 605.)

(1058) A passenger whoalights from a train at the invitation of the company
is not bound to be on the lookout for trains coming upon tracks which he
must cross to getaway. (Bvrasselv.N. V.C.& HR. RR. Co., 84. N. Y.,
241.)

(1059) A passenger who alights from a train at the invitation of the com-
pany ata place where there is no depot, has the same right to be protected
from passing trains as he would have at a depot. (/d.)

Miscellaneous Acts.
(Moving Round.)

(1060) It is not negligence in a passenger on a crowded ferryboattostand
on the stringer which separates the carriage and passenger ways. (Yazman
v. Hob. Land & Imp. Co., 50 N. Y., 53.)

(1061) It is not negligent ina passenger on a ship to take her children back
to their cabin shortly after a fumigation, if directed to do so by the
steward in charge. (Ayallv. Kennedy, 67 N. Y., 379.)

(1062) When a train stops at a station, a passenger, going beyond, may
alight from it ifhe chooses and cross any adjacent track in reliance on the
presumption that a train will not approach on it at a rapid rate of speed.
(Parsons v. N.Y. C. & H.R. RR. Co., 113 N. Y., 355-)

(1063) Riding in a baggage car does not bar a passenger’s recovery for

injuries received while so riding, unless it contributed tothem, (Websterv.
Rome, W. & Og. R. R. Co., 115 N. Y., 112.)

(Body Partly Outside.)

(1064) It is not negligent for a passenger to ride on a part of the vehicle where
there is more danger of an injury, if the carrier isin the habit of allowing
passengers to ride there. (Spooner v. Brooklyn City RB. R. Co., 54 NV. Y., 230.)

(1065) Allowing one’s elbow to protrude beyond a street-car window is not,
as to one who erects an obstruction in a street, necessarily negligent.
(Francis v. New York Steam Co., 114 N. Y., 380.)
620 Cases CoDIFIED. [Cuape. IIT.

 

(1066) A common carrier owes no duty to protect a passenger from the
consequences of his own action in voluntarily and without necessity swing-
ing his body beyond the side of its vehicle. (Colemanv. Second Ave. R. R.
Co., 114 WV. Y., 609.

‘
Cross REFERENCES.

See various subdivisions under Art. II of Tit, IV, of Chap. IL,
Carriers ; also Chap. IV, Ques. of Fact; also Chap. V, Defenses.

(Chap. III, Tit. [7—Continued. )
ARTICLE IIJ—TRAVELLERS AT RAILROAD CROSSINGS.

$170. Persons, who are travelling on travelled public roads,
must bear in mind that they can not travel far in the settled
portions of the state without coming to railroad crossings, and
that they should look out for them.

$171. The amount of watch for railroad crossings, which a
traveller should keep up, depends upon the locality or upon his
knowledge of the existence of railroads in the vicinity.

$172. A traveller, upon approaching a crossing, although not
bound in all cases to stop, whether walking or driving, must °
take reasonable precautions to ascertain whether a train is
approaching.

§ 173. The traveller must cross in a straight line without
stopping or going along the track.

§174. Whenatrain is approaching acrossing, and the traveller
on the highway sees it, or would see it if he took reasonable

precautions to do so, and yet proceeds, he takes the risk of
getting over safely.

§ 175. Where there is a maze of railroad tracks, and there is
neither tunnel under nor bridge over them, and the traveller is
put to the alternative either to risk crossing, or else to go a long
distance out of his way, he may proceed without being amenable

to the charge of negligence if, as he reaches each track, he uses
due care before going upon it.

§ 176. Where a railroad company has erected gates at a
crossing, or stationed a flagman, or adopted any other method

of warning persons of approaching trains, the traveller may
relax his vigilance in looking out for trains.
Cont. Nec.] Casrs CODIFIED. 621

 

§ 177. While the traveller may assume, when a gate is raised,
or a flagman signals him to come on, or in case any other
method of warning adopted by the railroad company fails to
give notice of trains, that it is safe to cross, yet he may not so
far rely upon that assumption as to pay no heed to an approach-
ing train, or give no thought to look for one.

§ 178. No act of a railroad company, unless it prevents the
traveller from using his senses to discover danger, or lures him
into a fancied security, will excuse his neglect to look out for
himself.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS: :

References to Statutes. Driven by Another.
Crossing in Sight of Trains. Several Tracks.

Looking or Failing to Look. Walking along Tracks.
Failure to Keep Looking. Company’s Acts as Excuse.
When Driving. Miscell. Acts,

a

References to Statutes.
(1067) Persons must not walk along tracks. (The Railroad Law, § 53, cited
in preceding art.)

Crossing in Sight of Train.

(1068) An error in judging tnat one has time to rescue one’s property from
a railroad track in front of a slowly-moving locomotive is not necessarily
negligent. (Bernhard v. Rens. & Sar. R. R. Co., 1 Abb. C. A. D., 131.)

(1069) If a person at a railroad crossing sees a train approaching and not-
withstanding goes upon the track, he jis chargeable with negligence.
(Madden v. N. VY, Cent. & H. R. R. Co., 47 N. Y., 665.)

(1070) A train approaching a crossing so slowly that its motion is imper-
ceptible is to be considered as stationary for the purpose of determining
whether a person is negligent in crossing ahead of it. (Maginnis v. N.Y.
Cent, & Hud. R. R. R. Co., 52 N. Y., 215.)

(1071) A person, who ventures across a track in front of an approaching
locomotive, even though it is far enough off to give him time to cross, takes
the risk of any detention on the way. (Pakalinskyv. N.Y. C.& H.R. R.
R. Co., 82 MV. V., 424.)

(1072) He who would emulate the chicken in foolishly shooting from one
side of the highway to the other in front*of a fast-travelling vehicle, must,
like the chicken, take the risk. (Connelly v. N.V.C.&H. R. R. R. Co., 88
XW. Y., 346.)

(1073) The general rule applied, to cross a track in plain sight of an
approaching train is negligent. (A/ehegan v. N. V.C.& A. RR. RK. Co., 125
4M. Y., 768.)
622 Cases Conirimp. (Cnap. III.

Looking, or Failing to Look.

(1074) Failure to look up and down a railroad track before crossing is negli-
gence, (Sferes vu. Oswego S&* Syracuse B. RIB NM. ¥., 422.

(1075) Ifa person by looking can avoid an injury, his omission to look is
negligence. (Grippenv. N.Y. Cont, RR. Co. OM. Vy) 24.)

(1076) The need of protecting one's face against a storm: is no excuse for
crossing a railroad (rack without looking up and down it, (Michelson vu,
“erie Railway Co,, 41 N. Y., 525+)

(1077) Tis negligence fora person to cross a railroad (rack without looking
along it, (Gorton v. “rie Ruitway Co., 45 Ne ¥., 660, Leny o, Great Western
RK. Co, 48 N. Y., 675.)

(1078) A person, who, with nothing to distract his attention, sleps ou arails
road track in front of an approaching train, whieh can be spoen, tales the
risk. (Mitchel v. N.Y, Cont. & HR, BR, Co0., OF Me Vy 655.)

(1079) Rule re-iterated, (Cordello, N.Y Co IKK BK Co, 75 MM,
330. Day v. Hlushing, N. SiS CR. KR, C0, 75 N,V, 610.)

(1080) A traveller approaching a railroad crossing is not bound to do more
than make all reasonable effort to see a train that a prudent man would
make in like circumstances. (Shaw vu, Jewell as Aecr, 80 N,V, 016,)

(1081) The failure ofa person al acrossing to look or listen for an approach.
ing train is only to be deemed negligent, when, if he had looked or listened,
he would have seen or heard the train, (Swedis uv. Brooklyn & Kock BR,
R. Co., 88. N. Y., 13+)

Failure to Keep Looking.

(1082) Itis net negligent for a person to drive upon a railroad crossing
without at the moment looking for a (train, when thirty feet back he had
looked and the gateman by raising (he pate affer a drain had pissed, gives
him an assurance of safety. (Glishing a, Sharp as Wee'r, 96 NM. ¥', 070.)

(1083) A person, who, on approaching a railroad crossing has looked both
ways, and whose allention at the last moment is diverted, is not guilly of

negligence, if at the moment of crossings he fails to look again. (Thompson
uN YC & IL RR. RK, Co. 0 N. Y., 636.)

When Driving.

(1084) It is contributory negligence to stop a wagon on a railroad track,
(Brooks, Buff. and Niag. Halls K. &. Co, 1 Abb. Ct, App, Dec., 211,)

(1085) It is negligent to approach a railroad track rapidly without looking
fora train, and without stopping. (Wilds v, //udson River BR. KN, Co., 24 NV
¥., 430; 2a M. 3, 315.)

(1086) Approaching a railroad crossing al such speed as to be unable to stop
or Lurn one's horses aside, before actually going on the track, is negligence,
(Salier v, Utica & Black Riv, R. BR. Co., 75 N. Y., 273.)

(1087) Tt is not necessarily negligent fora traveller driving ona highway

to omit to stop on approaching a railroad crossing, (Avedon vw. N.Y. C, &
SKK. KR, C0.,79 Nv V., 72.)
Cont. Nec. } Cases CODIFIED. 623

 

(1088) It is not necessarily negligent to approach a railroad crossing ina
heavily-loaded sleigh on a slow trot down a slight grade on an icy day.
(Salter v. Utica & Black Riv. R. R. Co., 88 N. Y., 42.)

(1089) It is negligent in a traveller, on nearing at a fast gait. ina snow
storm, a railroad crossing where he knows trains frequently pass, to
approach and drive over it without slackening his pace. (Powell uv. N. Y.
C.&@ H.R. R. R. Co., 109 N. Y., 613.)

(109c) The facts that it is Sunday, and trains seldom run, and that one’s
horse is young and will not stand, and that a wagon can not easily be
turned at a particular spot, do not excuse a traveller for bearing down ona
crossing with unslackened speed and without looking. (Cullen v. Del. &
Hud. Can. Co., 113 N. Y., 667.) 3

(1091) The rule that persons must not approach crossings on a trot applied.
(Nashu. N.Y. C.& HR. R. R. Co., 125 NM. Y., 715.)

Driven by Another, (474 see Jmputed Neghgence.)
(1092) Where a person with knowledge of the proximity of various railroads,
allows his driver to drive rapidly in a covered vehicle, without taking any

precautions or thought as to railroad crossings, he is negligent. (McCall v.
N.Y. Cent. R. R. Co., 54 N. ¥., 642.)

(1093) When a person riding in a vehicle has equal opportunity with its
driver to ascertain and avoid expectable dangers, the fact that he is being
driven does not excuse his failure to take such precautions as are open to
him. (Brickellv. N. Y. C. & H.R. R. R. Co., 120 N. Y., 290.)

Several Tracks.

(1094) When a man is crossing several tracks, and has stopped and listened
and heard no sounds of an approaching train, his omission on reaching a
particular track to look for a train on it is not necessarily negligent. (Weber
vu. NY, C.& H.R. R. R. Co., 67 N. V., 587.)

(1095) It is no excuse for a person’s failure ata railroad crossing to look for
a train approaching on a track near to him, that his attention is diverted by
a train passing onatrack beyond. (Woodard. N. Y., Lake Erie & West.
R. R. Co., 106 N. Y., 369.)

(1096) Peculiar situations of fact need special rules of law. (Blaiser v. NV.
Y., Lake Evie & W.R. R. Co., 110 N. Y., 638.)

(1097) When a person approaches a railroad crossing, the existence of an
intervening ditch and the fact that a train is passing on a further track,
constitute no excuse for a failure to look for a train on the nearer track.
(Rodrian v. N. Y., New. Hav. & H.R. R. Co., 125 N. Y., 526.)

Walking Along Tracks.

(1098) A person walking along a railroad track at a street crossing has no
right to assume from the absence of the signals required at crossings that a
train is not coming up behind him. (Wilcox v. Rome, Water. & Og. R. R.
Co., 39 MV. Y., 358.)

(1099) It is negligent to walk onarailroad track without looking for trains.

“(Harty v. Cent. R. R. Co. of N. F., 42 N. VY, 468, Seealso Scott v. Penn. R.
R, Co., 130 MV. Y., 679. - not crossing cases )
624 Cases CoDIFIED. (Cuap. III.

 

Company’s Acts as Excuse.

(1100) Where a railroad company has itself obstructed the sight of its track
atacrossing, it is not negligence for a traveller to drive up to the track
slowly without stopping. (Mackay v. NV. Y. Cent. R. R. Co., 35 N. Y., 75.)

(t101) The failure of a railroad company to sound the statutory signals on
its train when approaching a crossing, does not excuse the failure of the
traveller about to cross, from looking and listening for trains. (Havens v.
Erie Railway Co., 41 N. Y., 296.)

(1102) Omission to give the statutory signals on a railroad train when
approaching a crossing does not excuse a person from exercising ordinary
prudence in approaching the crossing. (Baxter v. Troy & Boston R. R. Co.,
4... ¥., 502. Pakalinskyv. N.Y. C.& H.R. R.R. Co., 82M. V., 424.)

(1103) Ifa railroad company does station a flagman at a crossing, travellers
have the right to assume that they may safely cross, when he fails to warn
them not tocross. (Aissingerv. N. VY. & H.R. R. Co., 56 N. V., 538.)

(1104) The absence of a flagmanat a railroad crossing where one is usually
stationed is not to be taken by a traveller as an assurance that no train is
approaching. (McGrathyv. N. Y.C.& H.R. R. R. Co., 59 N. V., 468.)

(1105) A person is not relieved from the necessity of a vigilant use of his
own senses to secure his own safety at a railroad crossing because he
assumes that a railroad employee, who happens to be stationed there at
the moment, is there to give warning to travellers, such employee being
really a brakeman and being there to couple.on signal, a train which has’
been parted to let travellers through. (Young v. NV. Y., Lake Erie & W. R.
R. Co., 107 NM. Y., 500) :

(1106) When gates at a railroad crossing, erected under the Railroad Law
are open, it is so far an assurance to the traveller that no trains are
approaching as to lessen the necessity of vigilance on his part to discover
for himself an approaching train. (Palmer v. N. Y.C.& AR. RR. Co.,
12M. Y., 234.)

Miscellaneous Acts.

(1107) It is not negligence for a person approaching a_ railroad crossing to
fail to anticipate that a train which has just passed may be followed by
detached cars. (Brownv. NV. Y. Cent. R. R. Co., 32 NM. Y., 597.)

(1108) The fact that a traveller approaching a railroad crossing does not
select thg best spot to stop and look for a train is not conclusive against him
on the question of his negligence in crossing the track. (Renwick v. NV. Y,
Cent. R. R. Co., 36 NV. Y., 132.)

(1109) The fact that the situation at a railroad crossing is such that a
traveller in a conveyance can not see or hear an approaching train unless he
gets out and goes to the track, does not make itincumbent upon him to doso.
(Davis v. N. ¥. C.& H.R. R. R. Co., 47 N. Y., 400.)

(t110) It is not negligent for a traveller to cross a track with his ears
wrapped up to protect them from the cold, unless he would thereby be
prevented from hearing an approaching train. (Sader v. Utica & Bl. Riv.
RR. Co.. 59 NM. Y., 631.)
Cont. NEc. ] CasEs CopIFIED. | 625

 

*

(1111) Wrapping reins around one’s body is not contributory negligence.
if its only effect is to prevent escape from, and not tocause, anaccident. (/d.)

(1112) An omission to notice a train backing toward a crossing is not
negligent under these circumstances, where it and another train have come
up from the opposite direction on another track, it has passed the crossing,
and while the following train is still approaching the crossing giving signals,
it switches on to the other track and backs without any other warning than
a ringing of the bell on the engine atits otherend. (Barry v. NV. Y.C.&
H. R. R. R. Co., 92 N. Y., 289.)

(1113) Itis not negligent for a boy to fail to notice that a train, which has
passed a crossing in front of him, has switched on to the other track, and is
backing down on the crossing without any warning other than by the bell
on the engine at the other end, when his attention is held by another train
which was following the first on the first track. (/@.)

(1114) It is negligent for a man to travel when so far under the influence of
liquor that his power to perceive danger is dulled. (Tolman v. Syr., Bing.
& NY. R. R. Co., 98 N. ¥., 198.)

(1115) It is not negligent for a traveller to attempt to cross an unsafe tem-
porary railroad crossing, which appears to besafeon the side he approaches,
and which the workmen building it aid him to cross. (Rembev. M. Y., Ont.
& West. R. R. Co., 102 NV. V., 721.)

(1116) To cross a railroad track in a cloud of smoke is negligence. (Heaney
v.L. I. R. R. Co., 112 N. Y., 122.)

Cross REFERENCES.

See subdivisions under Art. III, of Tit. IV, of Chap. II, Occu-
pants of Highways; also Chap. IV, Ques. of Fact; also Chap.
V, Defenses.

(Chap. III, Tit, [I—Continued.)
ARTICLE IV.—TRAVELLERS ALONG HIGHWAYS.

§ 179. Persons who pass along the highway have the right to
assume that it is in a fit condition to allow them to do so with
safety. ;

§ 180. A traveller on the highway may not act upon an
assumption that it is safe, if he knows, or is fairly warned by its

condition, or in any other way, that it is not safe.

§ 181. Where the unsafe condition of the highway is a
nuisance, the question of the contributory negligence of the
traveller is matter of defense.
626 Cases CopiFIED. (Cuap. IIL.

 

§ 182. Persons driving in vehicles, must, on meeting a
vehicle other than a street-car, turn to the right.

§ 183. The fact that there is no right of way in streets for
vehicles other than street-cars, affords no reason why a foot-
passenger should not, when walking in a street, use greater care
to avoid danger than when on the sidewalk.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS.
GROUPED UNDER THESE HEADINGS:

References to Statutes. Over Bridges.

On Sidewalks. Driving.

In Streets or Roads. Riding.

In Alleys. Notice of Danger.

References to Statutes.
(1117) Law of the Road. (See Art. IIL, of Tit. LV, of Chap. [1.)

(1118) Law of the Sea. (See /d., also Art. VI, of this Title, Miscell. Piffs.)
On Sidewalks.

(1119) Itis not negligent for a passer-by to walk over boards bridging an
excavation ona sidewalk, (Creed v. Hartmann, 29 N. Y., 591.)

(1120) It is not negligent for a person to walk carefully on ice on a side-
walk. (vans v. City of Utica, 69 N. Y., 166.)

(1121) A passer-by is not bound to keep in mind a defect in a highway
which he may notice in passing. (Weed v. Village of Ballston Spa, 76 N. Y.,
329-)

(1122) A person in walking along a sidewalk is not bound to take especial
careas tocoal-holes. (Cliffordv. Dam, 81 N. Y., 52.)

(1123) A person is not bound to be on guard against dangerous places in a
sidewalk. (McGuire v. Spence, 91 N. Y., 303-)

(1124. If a person running along a sidewalk is so full of the object of his
run as to forget the existence of an obstruction he knows of, he takes the
risk of injury from it. (Dubois v. City of Kingston, 102 N. Y., 219.)

(1125) It is not negligent for a person, using care, to pass at night along a
sidewalk covered with water. (Bly v. Village of Whitehall, 120 N. V., 506.)

(1126) Ta an action to recover damages resulting from slipping on ice on

a sidewalk, plaintiff must give some evidence of care in passing over it,
(Weston v. City of Troy, 139 N. Y., 281.)

In Streets or Roads,

(1127) The failure to look for an approaching car is not contributory negli-
gence, when a person has ample time to cross in front of it, but for an
unexpectable accident. (AMentz v. Second Ave. R. R. Co., 3 Abb. C. A. D., 274.)

(1128) In crossing a track a person is not bound toanticipate his stumbling
upon it. (/d.)
Cont. NEG. } Cases CopIFIED. 627

 

(1129) A foot-passenger going over the crosswalk of a street is bound to
look out for vehicles in either direction. (Barker v. Savage, 45 N. Y., 191.)

(1130) It is negligent fora person to attempt to cross a street ahead of two
vehicles moving at different rates of speed, upon nice calculations of
chances. (Belton v. Baxter, 54 V. Y., 245.)

(1131) Ifa person has time to cross a street-car track ahead of a car, the
fact that there is a vehicle being driven on the track behind the car, does not
necessarily render him negligent in crossing ahead of the car. (/a., 58
NM. Y., 411.)

(1132) It is not negligent fora person crossing a wide street to stop on the
crosswalk to let a vehicle go by. (Sheehan v. Edgar, 58 WV. Y., 631.)

(1133) Foot-passengers are not bound to cross a street on the crosswalk.
(Brusso v. City of Buffalo, 90 N. Y., 679.)

(1134) Foot-passengers when crossing streets are not bound to go over
crosswalks, but may cross where they please. (Moebus v. Herrimann, 108
N. Y., 349-)

(1135) A person crossing a street is not held to the same duty as matter of
law to look both ways as when crossing a track. (/d.)

(1136) Where a hole in a highway is not obvious, and a passer-by at night,
whodoes not see it or know of it, falls into it, the presumption may be made
that he was proceeding carefully. (Chisholm v. The State, 141 N. Y., 246.)

In Alleys.

(1137) Freedom from contributory negligence is notshown, when a plaintiff
simply shows that a deceased person knowing the locality, fell at nightinto
an area bordering on an alley, the alley not being a thoroughfare, and the
area being bounded at its ends by high walls, and on its sides along the
alley by a wall seven inches high and two feet wide. (Bond v. Smith, 113.
NV. Y., 378 )

Over Bridges.

(1138) It is not necessarily negligent for a foot-passenger in crossing a
bridge to walk on an unguarded side rather than on a foot-way obstructed
by snow. (Morrell v. Peck, 88 N. Y., 398.)

(1139) It is negligent for a person in a strange place ona dark night to
attempt to retrace his way over a bridge, without the light and guide which
he had on going over it the first time which are still at his disposal.
(Cummins v. City of Syracuse, 100 N. Y., 637.)

(1140) It is negligent for a person who knows thata state bridge was not
built for public use and any crossing of it by the public is on sufferance, to
assume that it is in fit condition for safe passage at night. (Splittorfv. The
State, 108 N. Y., 205.)

(1141) A foot-bridge built along a highway-bridge, and not presenting the
appearance of a mere foot-bridge, is not a sidewalk within the meaning of
§ 652 of the Penal Code or of an ordinance prohibiting driving upon a side-
walk. (Fisher v. Viil. of Cambridge, 133 N.Y, §27-)
628 Casrs CopiFrEp. {Cuap. III,

 

Driving.

(1142) It is negligent to drive unnecessarily over an obstruction in a street.
(Griffin v. The Mayor,9 N. Y., 456.)

(1143) A traveller while seeking to avoid an accident from a known cause is
not held to as high a degree of watchfulness as usual for unknown defects in
the highway. (Gillespie v. City of Newburgh, 54 N. Y., 468.)

(1144) Vehicles may be driven along the street-car tracks if due regard is
paid to the paramount right of way belonging to the car. (Adolph v. Cent.
Lark, N. & E, R. R. Co., 65 N. V., 554.)

(1145) Aperson driving ina street-car track, is not bound to be so solicitous
of keeping out of the way of cars coming up behind him, that he cannot
give due heed to the road in front of him and at his side. (/d@., 76 WV. Y,
530-)

(1146) Knowledge that a street is unsafe for travel does not necessarily
make one negligent in driving through it, if care is observed in so doing.
(Wooley v. Grand St. & Newtown R. R. Co., 83 N. Y., 121.)

(1147) A traveller is not bound to bear in mind every unsafe place ina
highway so as to be sure to avoid it. (/7.)

(1148) The rule as to the care which a traveller on the highway must observe
is no greater than this, that he must observe it as he goes along with ordi-
nary prudence such as ordinarily prudent persons would use under the same
circumstances. (Afinick v. City of Troy, 83 N. Y., 514.)

(1149) It is negligent for a person to drive along the track of a street rail-
road when a dummy engine is expected on it. (Donnelly v. B’hlyn City R.
R. Co., 109 WV. Y., 16.)

(1150) As to amount of care in passing anything. (Schmidt v. Steinway &
Hunters Pt. R. R. Co., 132 NV. Y., 566.)

Riding.

(See Connelly v. Knickerbocker Ice Co., 114 N. Y., 104, and Francis v. N.Y.
Steam Co., 114 NV. Y., 380, under Art. II of this title, sud. nom., Riding on
Platforms, and Miscell. Acts.)

Notice of Danger.

(3151) A passer-by on a street, who stops out of curiosity toobserve some-
thing going on, and is warned of danger, cannot be said as matter of law to
be free from negligence, (Ochsenbein v. Shapley, 85 N. Y., 214.)

(1152) Where a defendant gives evidence to show that a danger was not
obvious to its agent whose duty it would be to remove it, it can not claim
that the plaintiff was as matter of law guilty of negligence in not avoiding
it. (EZmbler v, Town of Walkill, 132 N. Y., 222.)

Cross REFERENCES,

See Art. III of Tit. IV of Chap. II, Highways; also Chap, IV,
Ques, of Fact, Chap. V, Defenses.
Cont. Nze. ] Cases CopIFIED. 629

 

(Chap. LI, Tit. LI- Continued.)

ARTICLE V.—OWNERS AND LESSEES OF REAL PROPERTY
AND HERIIN OF LICENSEES.

§ 184. Owners of real property and tenants thereof must use
due care to avoid injury to their property.

§ 185. A neighbour is not bound to take active steps to protect
his property from fire from his neighbour's land.

§ 186. It is not negligence in an owner of land to excavate
under a highway in proximity to a sewer.

§ 187. It is not necessarily negligent in a tenant of a portion
of a building to continue to use the building after the failure of
the landlord to do his duty in putting it in a safe condition.

§ 188. Persons coming upon real property by invitation or
permission are only held to such a degree of care as should
make them watchful against known or expectable danger.

COLLECTED FROM THE FOLLOWING DECISIONS,
GROUPED UNDER THESE HEADINGS :

Owners. Tenants.
Neighbours. Persons coming on,
Owners.

(1153) The neglect of an owner to notify the sneriff of an attempt to destroy
his property, does not prevent a recovery under the Riot Act of 1855, where
the owner is taken into custody at the time he learns of the attempt. (ZZ
v. Board of Supervisors of Niag. Co., 36 N. Y., 297-)

(1154) Negligence of a house-owner causing a leak in his gas-pipe is nota
proximate cause of an explosion caused by lighting a match during an
investigation as to the whereabouts of the leak. (Lannen v. Alb. Gas Light
Co., 44 N. Y., 459.)

(1155) The owner of the land under a street has the right to excavate the
soil under it and occupy the space so long as he does not interfere with the
public right of way. (McCarthy v. City of Syracuse, 46 N. Y., 194.)

(1156) Striking a light ina cellar in which gas is known to escape and which
has been closed several days, warrants a finding of negligence, even though
prior visits with a light have not resulted in an explosion. (Lanigan v. N.
Y. Gas Light Co., 71 N. Y., 29.)

(1157) As to closing stable over night, after noticing smell of gas. (Lee v.
Troy Cit. Gas Light Co., 98 N. Y.. 115.)

(1158) A railroad company is not bound to keep a watchman at a switch

where freight is being unloaded for building operations going on near by.
(MW. ¥., Lake Evie W.R.R Co. v, Allantic Ref. Co. 129 N. Y., 597.)
630 CasEs CopDIFIED. [Cuap. III.

Neighboars.

(1159) An owner of a house near a railroad track is not bound to see that
its doors are kept shut so as to keep sparks from locomotives from blowing
in. (Ferov. Buff. & State Line R. R. Co., 22 4. Y., 209.)

(1160) It is not negligent for a person to have inflammable material on his
premises near a railroad track, (Kalbfleisch v, Long Istand R R. Co., 102 N.

Y., 520.)

Tenants.

(1161) Where the tenant of that part of a building in which is situated a
stop-cock to shut the water off from the whole building undertakes to shut
the water off at night for the protection of all the tenants from the conse-
quence of an overflow, his failure to shut it off is negligence, which prevents
any recovery by him for damages resulting from such anoverflow. (Moore
uv. Goedel, 34. N. Y., 527.)

, (1162) A person hiring rooms in a tenement house has the right to suppose
that it possesses the means of escape from fire prescribed by law. (Willy v.
Mulledy, 78 N. Y., 310.)

(1163) Knowledge gained by a tenant after moving intoa tenement house,
that ithas not the means of escape from fire required by law, will not
defeat an action for damages sustained thereby, where it doés not appear
that a reasonable time within which to move has elapsed. (/d.)

(1164) A tenant in a tenement house is not bound to stop using the general
stairway because there are holes in the carpet. (Peilv. Reinhart,127 NV. Y.,381.)

(1165) A tenant in a tenement house, in which the ceiling of the hallway is
loose and likely to fall, is not bound to keep this continually in mind, while
passing underit. (Dollard v, Roberts, 130 NV. Y., 269.)

(1166) As to guests of tenants, see Art. VI, Miscel. PIffs., sub. xom., Guests.

Persons coming on.

(1167) It is not contributory negligence for a person engaged in transfer-
ring freight from a car on a side track to his wagon, at aspot designated by
the company’s agent, to allow his horses to remain attached to the wagon,
even though there is another side track near, and he has been warned of
danger. (Mewsonv. NV. Y. Cent. R. R. Co., 29 N. Y., 383.)

(1168) It is negligent for a workman, working in a place where poisonous
gas is likely to accumulate, to preventits proper ventilation. (Curran v.
Warren Chem, & Mfg. Co., 36M. Y., 153.)

(1169) Where a building apparently has several entrances from thestreet, a
[person on lawful business has the right to assume that any one of them isa
iproper entrance. (McRickard v, Flint, 114 N. Y., 222.)

(1170) A person is not bound to notice whether an elevator is at the floor
of entrance where he is invited to enter it by the act of the person in charge
of it. (Zousey v. Roberts, 114 NV. Y., 312.) ;

(1171) It is negligent for a person to walk by the side of a railroad track,
within the sweep of a train, which he knows is due at the place, without
looking to see, or if it is foggy without listening to hear, whether it is
coming. (Scott v, Pennsylvania R. R. Co., 130 N. Y., 679. See also Harty
tase, 42 N. Y., 468.)
Coy. Nuc. j Cases CODIFIED. 631

 

Cross REFERENCES,
See Art. IV of Tit. IV of Chap. II, Owners; also Chap. IV,
Ques. of Fact, Chap. V, Defenses.

(Chap. III, Tit. I[—Continued.)
ARTICLE VL- MISCELLANEOUS PLAINTIFFS.
§ 189. The degree of care required from children, who are
sui juris, depends upon their age and capacity.
§ 190. Blind persons are not necessarily negligent if they
travel in charge of others, or even unattended.

§ 191. Drunken persons assume the risk which grows out of
the fact that they are drunk (unless, perhaps, their condition is
the result of drugged liquor.)

§ 192. ‘The degree of care required from an owner of personal
property to protect it from injury,.depends upon the kind of
property.

$ 193. Owners of vessels should observe the usual methods
of protecting their vessels from collisions with others.

Here, as in the article on Miscellaneous Defendants, in the second
chapter, it is obvious that any further attempt to generalize from speci-
fic cases would be futile. It should also be noted that, for convenience
sake, no distinction.has been made in regard to whether the negligence
is matter of defense. See note to Chap. V.

COLLECTED FROM THE FOLLOWING STATUTES AND DECISIONS,
GROUPED UNDER THESE HEADINGS:

References to Statutes. Owners
Banks. of Animals.
Blind Persons. “6 Vehicles.
Captains. (See Mast. of V.) © Vessels.

Children.

Common Carriers.
Creditors.

Customers.

Depositors.

Directors. A
Drunken Persons.

Guests.

Holders of Notes,

Insane Persons.

Insured.

Licensees.

Makers of Notes.

Masters of Vessels.
Mistaken Pers. (See Parties,

 

“© Com, Paper.
‘¢ Other Property.

Parties
to Actions.

** Instruments.
‘© Mistakes.

Patients.

Persons in Miscell. Situations.
Entering Stores, &c.
Saving Life or Prop.
Watching Parades.
Injured by Animals.

Purchasers.

Sailors.

Too ants.
632 Cases CopDIFIED. [Cuap. III.

References to Statutes.

(1172) The Statutes of the U. S. and of this state as to the law of the sea
are sufficiently set forth in the cases herein cited.

(1173) Children must notsteal rides on street cars or railroad trains. (Zaws
of 1880, chap. 585. It is not believed that this act has been repealed, unless.
possibly by implication, by Pez. Code § 426.)

Banks.

(1174) The failure of directors of a bank to inform persons, about to become
sureties for the cashier, of omissions of duty of the latter which de not
affect his moral character or official integrity, is not such negligence as to
discharge the sureties. (Bostwick v. Van Voorhis, 91 N. Y., 353-)

Blind Persons.

(1175) It is not negligent for a blind man to rowa boat under the direction
of an experienced person, who is not blind. (Harris v. Uebelhoer, 75 N. Y.,
169. See also Davenport v. Ruckman, 37 N. Y., 568.)

Children.

(1176) Negligence can not be predicated of the act of ajchild nox saz juris.
(dhl v. 42d and Gr. St. Fer. R. R. Co., 47 N. ¥.y 317-) '

(1177) An infant of two years of age is not capable of negligence.
(Prendegast v. N.Y. C. & H. R. R. Co., 58 N. Y., 652.)

(1178) As to degree of care from children. (Thurber v. Harlem Br., M, &
F. R. R. Co., 60 N. Y., 326. Swiftv. Stat. Isl. R. T. R. R. Co., 123 N. Vy
645.—Honegsberger v. Sec. Ave. R. R. Co., 2 Abb. C. A. D., 378, not law.)

(1179) It is not negligent in a young boy to get on the front platform of a
street car in obedience to the directions of its driver. (Maher v, Cent. P.,
N.& E.R. RR. Co., 67 N. Y., 52.)

(1180) Children may play on sidewalks. (McGuire v. Spence, g1 NV. Y., 303.)
(1181) It is negligent in a boy, intelligent enough to know the danger, to

dart across a track in front of an approaching train seen by him to be
near. (Wendellu. N.Y. C.& H.R. R. R. Co., 91 N. Y., 420.)

(1182) A boy of eight, who tries to get across a track in front of a street-
car which he sees near by and approaching rapidly, is guilty of negligence.
(Motel v. Sixth Ave. R. R. Co., 99 N. ¥., 632.)

(1183) Violation by a child of the statute of 1880, chap. 585, prohibiting
children, who are not passengers, from riding on street car platforms,
does not necessarily establish negligence on its part where it is on the

platform by invitation of the conductor, express or implied. (Connolly ».
Knickerbocker Ice Co., 114 N. Y., 104.) -

(1184) The act of a boy in leaping from a car platform, without looking,
into the street in front of an approaching car, when doing so to avoid
being kicked off by the conductor, is not necessarily negligent, even though
he may have been technically a trespasser on the first car. (McCann v
Sixth Ave. R. R. Co., 117 NM. Y¥., 505.)
Cont. Nec. ] Cases CopiFizp. 633

 

(1185) An infant twelve years oldis to be presumed to be sui juris. (Tucker
uv. N.Y.C.& H.R. R. R. Co., 124 N. Y., 308.)

(1186) Ifa boy suddenly darts across a street railroad track ahead of a
moving car, he takes the risk of getting over ahead of it. (fenton v. Second
Ave, R. R. Co., 126 NM. Y., 625.)

(1187) Where a boy of twelve years of age is stealing a ride on a horse-
car, and the person in charge of it, without using violence, makes a feint
as if to put him off, and the boy heedlessly jumps off just in front of a
car which he might have seen approaching, he is negligent. (Hogan v. Cent.
Park, N. & E.R. R. R. Co., 124 N. V., 647.)

(1188) As to negligence of minors, when servants. See Art. I, Servants.

Common Carriers.

(1189) When a common carrier, under obligation to deliver freight with
all reasonable diligence, finds himself confronted by a danger of navigation,
which may result in injury to his vessel, but which he believes he may
safely pass, it is not necessarily negligent for him to proceed. (Yohuson v.
Belden, 47 N. V., 130.)

See also Lake Erie Gc. Co. v. Atl. Ref. Co., 129 N. Y., 597; Art.V, Owners.

Credit rs.

(1190) Mere delay of a creditor to comply with the request of a surety to
entorce the security held by him from the principal debtor, which does not
amount to gross negligence whereby the value of the security is impaired,
will not discharge the surety. (Black River Bank v. Page, 44 N. Y., 453. See
also Salt Sp. Mat. Bank v. Sloan, 135 N. V., 371.)

Customers, (See Persons Entering Stores.)

Depositors.

(1191) A depositor owes his bank no duty to examine his returned vouchers
with the view to discover any forgery. (Weisser v. Denison, 10 N. Y., 68.)

(1192) A depositor in a bank owes no duty to his bank to examine his
returned checks with a view to the detection of forgeries in their
endorsements. (Weishv. German Am. Bank, 73 N. Y., 424.)

(1193) A depositor owes no duty to his bank so to conduct an examination
of his returned vouchers as will necessarily lead to a discovery that some
of them are forged. (frank v. Chemical Nat. Bank, 84 N. ¥.. 209.)

(1194) It is not negligent fora depositor to draw and leave with a clerk his
check dated ahead to the order of his clerk, for the purpose of having him
draw the money therein on the day of its date in case of the employer's
‘absence on that date. (Crawford v. West Side Bank, 100 N. Y., 50.)

(1195) The failure of a depositor ina bank to discover that his confidential
clerk is obtaining money from his bank by means of forgeries of endorse-
ments of checks drawn by him is not necessarily negligent. (Shipman v.
Bank of St. oj N. Y., 126 N. Y., 318.)

Directors. (See #avks.)
634 CasEs CopIFIED. (Cap. IIT.

 

Drunken Persons.

(1196) He who travels when under the influence of liquor takes the risk
arising from the fact that he is under its influence. (7olman v. Syracuse,
Bing. & N.Y. R. R. Co., 98 N. Y., 198.)

Guests.

(1197) Where a guest negligently omits to avail himself of the place pro-
vided by the innkeeper for the safe keeping of his money, he cannot hold
the latter liable for its loss. (Purvis v. Coleman, 21 N. Y., 111.)

(1198) A guest of a tenant of a tenement house who goes rambling round
it in the dirk in an endeavor to find a closet, whose whereabouts he does
not know, takes the risk of going through a door which he thinks leads to
the closet he isin search of. (Ai/senbeck v. Guhring, 131 NV. Y., 074.)

Holders of Notes. (S¢¢ Owners of Com. Paper.)

Insane Persons.

There do not seem to be any actions in behalf of insane persons.
Are the insane never injured? Have they no rights, or are they wiser
than their sane brethren in refusing to go to law? These are questions
as to which the lovers of contingent fees would seem to have been
guilty of grave contributory negligence. They have scoured the
hospitals and the jails, but have neglected to send their runners to the
insane asylums.

Insured Persons.

(1199) The negligence of a master of a vessel resulting in rendering her
unseaworthy does not preclude a recovery on a policy of insurance for a
loss not due to such neglect. (dm. Ins. Co. v. Ogden, 20 Wend., 287.)

Licensees, (See Art. V, Owners of Real Property.)
Makers of Notes. (See Parties.)
Masters of Vessels. (See /sured. Also next title.)
Owners. 3

(Of Animals.)

(1200) Under § 44 of the General Railroad Act of 1850, the negligence of an
owner of cattle, in allowing them to stray, is no defense to a railroad
sue which has failed to maintain fences as thereby required. (Corwin
uv. NY. & Erie R. R. Co., 13 N. Y., 42.)

(1201) Negligence of an owner of cattle in allowing them to escape from
his control and stray on a track is an answer to an action to recover
damages for the negligence of a railroad company in omitting to keep

its cattle-guards in proper condition. (Hance v. Cayuga & Sus. R. R. Co.,
26 NV. Y., 428.)

(1202) It is not negligent in an owner of a young and skittish horse to take
it on board of a ferfyboat. (Clark v. Union ferry Co., 35 N. Y., 485.)

(1203) It is not negligent to pasture cattle on a farm contiguous to a rail-
road which the company has neglected to fence as required by law.
(Shepard uv, Buff., N.Y. & E.R. hb. Co., 35 N. ¥., 641.)
Cont. Nze. ] Cases CopIFIEb. 635.

 

(1204) Same as in Shepard v. Buffalo, N. Y., &c., R. R. Co., 35 N. Y., 641.
(Keluer v. N. Y., Chic. & St. L. R. R. Co., 126 M. Y., 365.)

(1205) Negligence cannot be imputed to an owner of cattle merely from
the fact that his cattle have escaped from his well-fenced field. (Spinner v.
N.Y.C.&@ H.R. RR. Co., 67 N. Y., 153.)

(1206) It is not necessarily negligent to close for the night a building con-
taining animals when a smell of gas is noticed, if a leak, from which
gas has escaped, has just been repaired. (Lee v. Troy Citizens’ Gas Light
Co., 98 NV. Y., 115.)

(Of Vehicles.)

(1207) It is negligent for a person in charge of a carriage and horses at a
stan-1-still in a street not to watch the street. (Gray uv. Second Ave. R. R. Co.,
65 NV. Y., 561.) See Common Carriers, supra.

(Of Vessels.—Lights )

(1208) The failure of a vessel to show the lights required by law, is not
negligence which contributes to a collision with another vessel, if the
former was in fact seen by the latter in time to be avoided. (Hoffman v.
Omon Ferry Co., 47 N. Y., 176. Silliman v, Lewis, 49 N. Y.,379. Whitehall
Tr.Co.v. N. F. St. Co., 51 MN. Y., 369. Delafield v. Un. Ferry Co., 51 N. Y.,
671.)

(1209) It is negligent for the master of a boat to omit to place alight on her
atnight. (Arctic Fire Ins. Co. v. Austin, 69 N. Y., 470.)

(1210) Sail-boats are not vessels within the provisions of the New York
statute and harborregulations as to vessels exhibiting lights and anchoring
atnight. (Lambert v, Staten Island R. R. Co., 70 N. Y., 104.)

(Of Vessels.—Miscell.)

(1211) Negligence which does not contribute to an injury is not contribu-
tory negligence. (aley v. Earle, 30 N. Y., 208. Blanchardv N. F. St. Co.,
59 ¥. V., 292.) ‘

(1212).The placing of a canal boat in an improper place in a tow does not
relieve its crew from care in her management. (A&@i/ton v. Hud. Riv. Steam-
boat Co., 37 N. Y., 210.)

(1213) Failure of a boat aground to make answering signals to another
boat about to pass is not contributory negligence. (dustin v. Mew Fersey
Steamboat Co,, 43 N. Y., 75.)

(1214) Where a collision on water is due to mistake of the channel by the
colliding boat, a prior similar mistake by the other boat through which she
grounded is not negligence which contributes to the collision. (/d.)

(1215) A sailing vessel drifting with the tide in a river is not bound to
anchor so as to lessen the risk of collision with steamboats, (/arrott v.
Knickerbocker Ice Co., 46 N. V., 361.)

(1216) Placing a sailing vessel in peril from a steamer by tacking is not
negligence when done to avoid a river’s bank and the steamer is not seen.
(Mailer v. Exp. Propeller Line, 61 N. Y., 312.)

(1217) The omission of a person in charge of a boat, at anchor, to cut the
anchor rope to avoid a collision is not necessarily negligent. (Lambert v.
Stat, Ist. R. R. Co., 70 N. ¥., 104.)
636 Cases CoDIFIED. [Cuae. ITI.

 

(1218) It is not negligent for persons sailing a vessel to omit to watch
for danger from behind. (Erwin v. Neversink St. Co., 88 N. Y., 184.)

(1219) When the issue is as to whether a boat’s sinkingat a dock was due
to the unsafe condition of the bottom, on which she rested at low tide, and
it appears that she had been moored there for several days during which
she had rested on the bottom at low tide, her owner is not relieved from the
necessity of examining to see whether the bottom is safe by a statement
from the dock owner thatitis safe. (Vromanv. Rogers, 132 N. Y., 167.)

See also Insured Persons, supra. Also Common Carriers, supra.

(Of Commercial Paper.)

(1220) The holder of a note payable on demand does not discharge an
endorser by mere neglect to demand it. (Merritt v. Todd, 23 N. Y., 28.)

(1221) The holder of a certificate of deposit does not discharge an
endorser by mere neglect to present it for payment. (Fardee v. Fish, 60
N. Y., 265 )

(1222) The neglect of the maker of a note, who has paid the amount due
on it to its holder on the promise to surrender it, to give notice of a suit upon
it by a third person into whose hands it has passed, precludes him from
recovering from the former holder the amount for which he may be cast in
judgment in such suit. (Barmon v, Lithauer, 2 Abb. C. A. D., 99. S.C. 4
Keyes, 317.)

(1223) The neglect of the holder of an endorsed promissory note payable
on demand at a specified place, to make such demand, within six years from
its date does not operate to give the endorser a defense under the statute of
limitations, (Farkerv. Stroud, 98 NV. Y., 379.)

(1224) Where the drawee of a sight draft deposits it in his own bank on the
day of its receipt, and it is presented before noon on the next day, and that
being on Saturday and a half holiday, it is again presented on the following
Monday, and notice of protest is sent to the drawer on that day, no negli-
gence in presentment or giving notice of protest is committed. (Sy/vester
vu. Crohan, 138 NV. Y., 494.)

(Other Property.)

(1225) The defense of contributory negligence is not available against an
owner of stolen property suing an innocent purchaser for its conversion.
(Peasg v. Smith, 61 N. Y., 477.)

Parties.
(To Actions.)

(1226) The neglect of a plaintiff, after due request by the surety of an
arrested defendant, to enter judgment and take the defendant into
execution when he could do so discharges the surety. (Toles v. Adee, 84 N.
V., 222.)

(1227) A plaintiff in an action to foreclose a mortgage, whose negligence
in omitting to make the owner of the equity a party necessitates a re-sale of
the premises, must pay the expenses of such re-sale. (Raynor v. Selmes, 52

WW, Y., 579.)
Cont. Nzc, } Cases CopirFiep. 637

 

(To Deeds.)

(1228) Where the execution of a deed is obtained by fraudulent representa-
tions as to its contents, an omission to read it before execution is not such
negligence as to defeat an action to setit aside. (Smith v. Smith, 134 MW. V.,
62.)

(Zo Mistakes.)

(1229) In an action to recover money paid under mutual mistake of fact, it
is no defense that the mistake was due to negligence of the plaintiff. (Union
Nat. Bh. v. Sixth Nat.Bk., 43 N. ¥., 452.)

(1230) The negligence of a person in making a payment undera mistake of
fact does not defeat his action to recover the mney: so paid. (Lawrence v,
Am. Nat. Bk., 54 N. Y., 432)

(1231) Money paid under mistake of fact may be recovered, however
negligent the party paying may have been in making the mistake, unless
the payment has caused such a change in the position of the other party
that it would be unjust to require him to refund. (Mat. Bk. of Com. v. Nat.
Merch. Bk. Ass,, 55 N. Y., 211.)

(1232) The neglect of a person, on paying forged commercial paper, to use
due diligence in inspectingit and giving notice of the forgery, which neglect
would operate to the prejudice of the ‘person receiving the payment, if
required to refund, will defeat an action against such person to recover the
amount so paid. (Allen v. Fourth Nat. Bank, 59 N. Y., 12.)

Patients.

(1233) Ifa patient sustains injury through negligent treatment by a phy-
sician, subsequent negligence of the patient, or of another physician forms
no bar to the action. (Carpenter v. Blake, 75 NV. Y., 12.)

(1234) Failure by a patient to obey his physician’s instructions does not

:Telieve the physician from the consequences of previous unskillful treatment.
(Dubois v, Deckert, 130 N. Y., 325-)

Persons in Miscell. Situations.
(Entering Stores, &c. See Art. V.)
(Saving Life or Property. See Tit. 1)
(Watching Parades.)

(1235) It is not negligent for a person to watch a military drill when not
apprised that an order may be given to the soldiers to fire. (Castle v.
Duryea, 1 Abb. C. A. D., 327. S.C. 2 Keyes, 169.)

(niured by Animals.)

(1236) In an action for damages committed by a vicious animal, acts of
the plaintiffif they are to be taken as a defence, must be such as would
establish that the plaintiff with knowledge of the animal’s character
voluntarily brought the injury upon himself. (A/udler v. McKesson, 73 N.
¥., 195.)

(1237) Ordinary familiarities with a dog running loose, without knowledge
of its viciousness, do not constitute acts warranting the inference that a

persoo voluntarily brought upon himself its attack. (Lynch v. McNally, 73
MV, 347.)
638 Cases CopIFIED. [Cuap. ILI.

 

Purchasers.

(1238) While the negligence of a purchaser for value cf unmatured nego-
tiable paper may be so gross as to be evidence of bad faith, it is not of itself
sufficient to defeat his'title. (Seydel v. National Currency Bank, 54 N. Y., 288.)

(1239) Negligence of a purthaser of commercial paper for value. however
gross, is not su‘ticient to deprive him of the character of a dona fide holder.
(Chapman v. Kose, 56 NM. Y., 137.)

(1240) As against a Jona fide holder of commercial paper, it is not enough
for the maker toshow fraud and that he did not know what he was signing,
without going further and showing that he was not guilty of negligence. (Zz.)

(1241) Mere negligence in the purchaser of negotiable securities is not
sufficient to defeut his title. (Dutchess Co. Mut. Ins. Co. v. Hachfield, 73 N.
Y., 226.)

(1242) Mere delay of the purchaser of a forged note in detecting the
forgery is not negligence which prevents his recovery of the purchase
money. (frank vu, Lanier, 91 NV. Y., 112.)

(1243) A purchaser of property from an insolvent debtor owes to the latter’s
creditors no duty of active diligence requiring him to suspect or investigate
the motives of the debtor in making thesale. (Parkerv Conner, 93 N. Y., 118.)

(1244) Where real estate is sold at auction under a decree in partition,
which describes it by metes and bounds, it is negligent for a purchaser to
rely, forthe number of acres it contains, upon the statement in a hand
bill which omits the boundary lines, and merely describes the track as the
farm of suchan one, containing so many acres, when he can obtain full
and accurate information as to the real number upon proper inquiry.
(Dennerlein v. Dennerlein, 111 N. Y., 518.)

(1245) A person searching a title is not negligent in failing to examine a
contract mentioned in a recital of a deed which states that the deed is made
pursuant to such contract. (deer v. Westcott, 46 N. Y., 384.)

(1246) The neglect of a purchaser of land to search the papers in a judg.
ment roll, inan action in whicha notice of /is pendens was filed, is immaterial,
where the judgment dismissed the complaint and directed a cancellation of
the notice. (Valentine v. Austin, 124 NV. Y., 400.)

Sailors, (See Art. I, Servants.)
Tenants. (See Art. V, Owners &c.)
* Cross REFERENCES,
See references at end of prior Articles of this title.

 

(Chap. ITT. —Continued.)
TiTLe Ill.—Impurep NEGLIGENCE.
§ 194. When a child is non sui juris any negligence of the
parent or other custodian in allowing it to get into a situation
where it is likely to be injured must be imputed to the child.
Cont. Nec. ] Cases CopIFI£D. 639

 

§ 195. The rule in the last section does not apply where the
child itself does not do anything which would be negligence in a
person of mature years.

§ 196. The rule requiring parents and custodians to watch
young children and guard them from danger does not require
ceaseless and incessant vigilance.

Or, the parent is riot an insurer against the child’s escape from his
control, but is only held to a reasonable degree of vigilance.

§ 197. The rule that the negligence of the driver of a vehicle
must be imputed to every other person riding init, is now limited
to cases where the driver is the agent of the other person as to
the very act of driving.

COLLECTED FROM TAK FOLLOWING DECISIONS,
GROUPED UNDER ‘THESE HEADINGS =

Parents. Common Carriers.
Drivers of Private Vehicles. Masters of Vessels.
Parents.

(1247) It is not negligent in law for a parent to send a boy of eight years
ofage to school without a protector. (Drew v. Sixth Ave. Rk. R. Co., 26 N.
¥., 49.)

(1248) The negligence of the parents of an intelligent boy of eleven years
isimmaterial. (A/ceMahon v. The Mayor, 33 N. Y., 642.) ;

(1249) The omission of a parent of an infant to prevent its escape from
immediate supervision is not necessarily negligent. (MWangamv. Brioklyn C.
R. Co., 38 NV. Y., 455.)

(1250) It is not negligent for a parent when travelling to allow a son of
twelve years of age to leave the parent’s presence and ride in another car,
(Downs v. N. Y. Cent. R. R. Co., 47 N. Y., 83.)

(1251) The negligence of the father must be imputed to a child, where he
is carrying it, when the accident happens. (Morrison v. Erie Railway Co.,
56. Y., 302.)

(1252) It is only in cases where a child ox sui juris has done or omitted
something which would be regarded in an adult as negligence that the
conduct of its parent in respect to the degree of care exercised over the
child becomes material. (McGarry v. Loomis, 63 N. Y., 104.)

(1253) It is not negligence in a mother of a young child of a tractable
nature, upon directing it to go into another part of the home, to fail to watch
that it does not go into the street. (Fallon v. Cent. Fark, N.& E.R. RR.
Co., 64.M. Y., 13)

(1254) Where a child of tender years has exercised the care which a person
of mature years should exercise, any negligence of its parentin allowing it
to goat large is immaterial. (Cumming v. Brooklyn City R. R. Co., 104 N
Y., 669 )
640 CasEs CoptiriED. [Cuae. III.

 

(1255) The rule that the parent of a child of tender age must protect it
from danger to which its own want of experience may subject it, does not
require the parent to suspend his business and keep the child, when at
home, every moment under hiseye. (Weilv. Dry Dock, E. B.& B. RR.
Co., 119 NM. Y., 147.) ‘

Drivers of Private Vehicles.

(1256) The negligence of a person managing a vehicle cannot be imputed
as contributory negligence to an occupant of it, where there is no relation
of master and servant, or principal and agent, between them. (odinson v,
N.Y. C.& H.R. RR. Co., 66 NM. Y., 11.)

(1257) The negligence of the driver of a conveyance is not to be imputed
to one who is riding in it upon invitation and not controlling the driver.
(Mastersonv. N. VY. C.& H.R. R. R. Co., 84. N. Y., 247.)

(1258) When a person is riding ina vehicle driven by another, with whom.
he is pursuingan undertaking in common, the negligence of the driver must
be imputed to him. (Donnelly v. Bhiyn City R. R. Co., 109 N. Y., 16.)

(1259) Rule in Robinson v. N.Y. Cent. R.R. Co., 66M Y., 11, as to im-
puted negligence, extended so as to include husband and wife. (Hoag v. MV.
VC&@ ARR. R. Co, 11M. Y., 199.)

(1260) Rule in Robinson case, 66 N. Y., 11, applied. (Phidigsu. NM. Y.C.
& H.R. R. R. Co., 127 NV. Y., 657.)

Common Carriers.

(1261) The rule as to imputed negligence does not apply to passengers in
railroad cars. (Chapmanv. New Haven R. R. Co., 19 N. Y., 341.)

(1262) The rule as to imputed negligence applies toa passengerin a public
stage. (Brown. N. Y. Cent. R. R. Co., 32 N. Y., 597.)

(1263) The rule as to imputed negligence does not apply to a common
carrier’s passengers. (Webster v. Hudson Riv. R. R. Co., 38 NV. Y., 260.)

(1264) The negligence of a driver of a street-car is not to be imputed to
its conductor where it does not appear that the driver is under the con-
ductor’s directions as to the car’s management, other than in obeying sig-
nals to stop and go on when taking on and letting off passengers. (Seaman
uv. Koehler, 122 N. Y., 646.)

Masters of Vessels.

(1265) Te negligence of the master of a vessel, whereby it is lost, is not
imputable to its charterer, so as to prevent him from recovering an
insurance on his cargo. (Sturm v. Atlantic Mut. Ins, Co., 63 N. Y., 77.)

(1266) The negligence of the master of a boat in her management is
imputable to the owner of her cargo in an action to recover for damages
caused to the cargo by the negligence of another. (Arctic Fire Ins, Co. v.
Austin, 69 NV. Y., 470.) See also Tit. II, Art. VI, s#b. 20m., Insured.

Cross REFERENCES.

See Chap. IV, Ques. of Fact ; also Chap. V, Defenses,
Ques. Fact. ] Cases CopIFIED. 641

 

CHAPTER IV.

QUESTIONS OF FACT.

§ 198. In theory, the question whether a person nas been
guilty of negligence is primarily a question of fact.

§ 199. Virtually, however, the question of a person’s negli-
gence has become primarily a question of law.

§ 200. If upon a full review of the facts, as settled by the
jury, the appellate court is of opinion that it is clear that upon
the facts a party, whether plaintiff or defendant, was negli-
gent, the question is considered to be one of law.

§ 201. If the appellate court is doubtful, then the question is
considered to be one of fact.

§ 202. It follows from the foregoing rules that if the trial
court is of opinion that it is clear that either party has been
guilty of negligence, it should rule accordingly as matter of law,
and if it is doubtful, it should send the case to the jury to be
decided as a question of fact.

The qualification at the end of the note to § 2 (sugra, p. 488) applies
to the foregoing sections. They are not put forth as propositions
which have been formally adjudicated. Theorize as we may, however,
the conclusion can not be avoided, and must some day be announced,
that most questions as to negligence involve law rather than fact. It has
been said that our courts have too often invaded the province of the
jury. What is true is, that they have too often allowed the jury to
invade their own province. Instead of charging a jury, ‘‘if you find
that such a thing was done, then I charge you that it was a negligent act,
and you should find a verdict for the plaintiff,” (or the defendant as the
case may be), the court usually charges, ‘‘if you find that such an act
was negligent, then I charge you that you must find a verdict for the
plaintiff” (or the defendant as the case may be.) No verdict of a jury
can convert a careful act intoa careless one, or vice versa. In other
words, it is inherent in the very nature of our system of administering
justice, that questions of negligence are questions of law and not fact,
in all cases, except in those where there is fair ground for difference of
opinion. Such must be left to the jury as the only tribunal which can
settle them,

§ 203. The length of time necessary to enable the rule as to
constructive notice to be applied is usually a question of fact.
642 Cases CopIFrEp. [Cuap. IV.

 

COLLECTED FROM THE FOLLOWING DECISIONS,
GROUPED UNDER THESE HEADINGS:

In General. Masters.
Nonsuit. Servants.
Notice. . Carriers.
Highways. Passengers.
What are. ; Real Property.
Municip. Defts. Owners of.
Railroad Crossings. Tenants and Others on.
(1) R. R. Co’s. Tracks crossing each other.
(2) Persons. Owners of Vessels.
Travellers along. Children.
(1) Defts. Imputed Negligence.
(2) Plffs. Miscellaneous.

In General.

(1267) It is not easy to suppose a case in which the court would be war-
ranted in holding as matter of law, that negligence was proved. (Bernhard
vu. Rens. & Sar. R. R. Co., 1 Abb. C. A. D. 131, per Selden J.)

(1268) Even if the facts, upon an issue of negligence, are not in dispute,
where they are fairly susceptible to different inferences, it is for the jury to
draw them. (Keller v, NM. Y. Cent. R. R. Co., 2 Abb. C, A. D., 480.)

(1269) When negligence may or may not be interred from a set of circum-
stances, it is a question of fact for the jury. (Holbrook v. Utica & Schenec,
RR. Co., 12 MV. Y., 236.)

(1270) Where a person is found injured so that he cannot explain how,
and the circumstances permit of an explanation which is sufficient, if
accepted, to acquit him of negligence, the case should be sent to the jury.
(Fohnson v. Hudson Riv. R, R. Co., 20 N. ¥., 65.)

(1271) The distinction between gross negligence and slight negligence is
one of fact, not law. (Perkins v. N. Y. Cent. R. R. Co., 24M. V., 196.)

(1272) When the issue of negligence depends on inferences to be deduced
from a variety of circumstances in regard to which there is room for fair
difference of opinion among intelligent men, it is a matter of right to have
it submitted toa jury. (Wolfkielv. Sixth Ave. R. R. Co.,38 N. Y., 49.)

(1273) Where alleged contributory negligence of the person injured is in-
duced by an act of the defendant, it is a question of fact whether such
person was negligent. (Filer_v. N.Y. Cent. R. R, Co., 49 N. Y., 47.)

(1274) Where the alleged facts claimed to constitute contributory negli-
gence, depend on the credibility of witnesses, or on inferences to be drawn
from circumstances as to which men might well differ, it is a question of

fact whether the injured person was negligent. (Hackfordv. N. Y. C. &
Hf. R. R. Co.. 53 N. Y., 654.)

(1275) In cases of nice distinctions, where the question of contributory
negligence was submitted to the jury, and its verdict has been sustained at

the General Term, the burden is on him who alleges error to show it with
reasonable certainty. (/d.)
Quszs. Fact. J Cases CopIFIED. 643

 

(1276) Whenever men of ordinary prudence and discretion might differ as
to the character of an act under the circumstances of the case, the question
whether it was a negligent act is one of fact. (Hays v. Miller, 70 N. Y., 112.)

(1277) Whether it is negligent for a man to put himself in peril to save his
property from apprehended damage, it not being certain that he will
himself be injured, is a question of fact. (Rexter v. Starin, 73 N. Y., 601.)

(1278) Whether a person admittedly using some caution, has used enough
is a question of fact. (Mvenv. City of Rochester, 76 N. Y., 619 )
(1279) Whether one, who takes some measures to avoid danger, did all that

an ordinarily prudent person would do under the circumstances, is a
question of fact, (Stackusv. M. Y.C.& H.R. R. R. Co., 79 WV. Y., 464.)

(1280) Where, upon the plaintifi’s evidence, different inferences may be
drawn, one of which inculpates, and the other exculpates the defendant, the
question is one of fact for the jury. (Brophy v. Bartlett, 108 NV. Y., 632.)

(1281) When a person is seeking escape from impending danger and is
delayed, whether he is negligent in getting away is a question of fact.
(Rima v, Rossie Iron Works, 120 N. Y., 433-)

(1282) <‘It by no means necessarily follows because there is no conflict in
the testimony, that the court is to decide the issue between the parties as a
question oflaw. The fact of negligence is very seldom established by such
direct and positive evidence that it can be taken from the consideration of
the jury and pronounced upon as matter of law. On the contrary, it is
almost always to be deduced as an inference of fact from several facts and
circumstances disclosed by the testimony, after their connection andrelation
to the matter in issue have been traced,and their weight and force considered.
In such cases the inference cannot be made without the intervention of a
jury, although all the witnesses agree in their statements, or there be but
one statement, which is consistent throughout. Presumptions of fact, from
their very nature, are not strictly objects of legal science, like presumptions
of law.” (lreland v. Oswego, H. & S. Pl. Road Co., 13 N. Y., at p. 533,
per T. A. Johnson J.)

(1283) ‘The question of negligence in all cases involves a question of fact;
and it is only where the question of fact is free from all doubt, that the
court has a right to apply the law without the action of ajury.” (Kellrv.
NV. Y. Cent. R. R. Co., 2 Abb, C. A. D., at p. 483, per Mason J.)

(1284) ‘‘When either the facts or the inference to be drawn from them are
in any degree doubtful as to the question of negligence, it is the duty of the
judge to submit the matter to the jury under proper instructions as to the
law.” (/d.)

(1285) It is not enough to prove facts from which either the conclusion of
negligence or the absence of negligence may with equal fairness be drawn,
(Hart v. Hud, Riv, Br. Co., 84 N. Y., 56.)

Nonsuit.

(1286) If it appears from plaintiff's evidence that he was guilty of negli-
gence, he should be nonsuited, (Bernhard v. Rens. & Sar. hk. R. Co, t
Abb. C. A. D., 131.)
644 Casres CODIFIED. [Cuap. IV.

 

(1287) When it is necessary, as in most cases it is, to determine what a
person of ordinary care and prudence would be likely to do under the
circumstances proved, and it involves more or less of conjecture, a nonsuit
is not proper. (Webber v. N. Y.C.& A. RR. R. Co, 58 4. Y., 451.)

(1288) In anaction to recover damages for negligence, to justify a nonsuit,
the facts must be so clear against the plaintiff that there is no room for
doubt. (Hart. v. Hud. Riv. Br. Co., 80 N. Y., 622.)

(1289) Where a plaintiff’s evidence does not show affirmatively a want of
care on the part of an injured person, and is quite consistent with due care,
itis error to nonsuit. (Galvin v. The Mayor, 112 N. Y., 223.)

See also Chap. VII, Evid., sud. xom., Burden of Proof, Presuinptions,
Inferences; Chap. VIII, Causes. :

Notice.

(1290) Whether the presence on a sidewalk of an unlawful obstruction for
four days was sufficiently long enough for the city authorities to become
apprized thereof and remove it, is a question of fact. (Kunz uv. City of Troy,
104 WV. Y., 344.)

(1291) Where an unsafe, condition of a street has existed for a week, it isa
question of fact whether it is sufficient to charge the city with knowledge
of it. (Turner v. City of Newburgh, 109 NV. Y., 301.)

See Chap. X, Miscell. Subj., sd. nom., Notice.

Highways. (Whale
(1292) Question of fact as to whether a certain road was a highway.
(McCarthy v. Lake Shore & M.S. R. R. Co., 76 M. ¥., 592.)

(Municipal Deft’s.)

(1293) Whether a sidewalk is maintained in a reasonably safe condition
for public use is a question of fact. (Bullock v. The Mayor, 99 NV. Y., 654.)

(1294) Whether a depression of eight inches in a cross-walk is unsafe is a
question of fact. (Goodfellow v. The Mayor &c. of N. Y., 100 N. Y., 15.)

(1295) Whether the failure of a city’s street superintendent to require the
removal of dirt, which he sees thrown upon a sidewalk from an excavation,
was negligent, is a question of fact. (Shook v. City of Cohoes, 108 V. Y., 648.)

(1296) Whether a commissioner of highways performs his full duty to obtain
funds to repair them, by contenting himself with demanding them from the

town supervisor, is a question of fact. (Clapper v. Town of Waterford, 131
NV. Y., 382.)

(1297) Where a city under due authority of law requires that Jateral con-
nections between the public mains in its streets and adjoining lots shall be
made by itsown workmen under the direction of its superintendent, the pay
of whom isto be borne by the person applying to have the connection, itis
a question of fact whether such person or the city is the master of the
workman. (Wilson v. City of Troy, 135 N. Y., 96.)
Ques. Fact. ] Cases CoDIFIED. 645

 

(Railroad Crossings.)
(1) Railroad Companies.
See Kelly v. Long Island. R. R. Co., 47 N. Y., 657.

(1298) When two witnesses swear they did not hear a whistle or a bell at
a crossing, and six swear they did, it is a question of fact for the jury, even
though the wind was blowing away from the two. (Roach v. Flushing &
N.S. RR. Co., 58M. Y., 626.)

(1299) As against disinterested evidence thata bell was rung at a crossing,
evidence that none was heard does not create a contlict of evidence,
justifying a submission to the jury of the question whether it was rung.
(Culhanev. N. Y.C.& H.R. R. R. Co., 60M. ¥., 133 )

(1300) Whether it is negligent to back an engine, whose tender obscures
the track, over a city crossing at the rate of eight miles an hour, is a
question of fact. (McGovern uv. N. Y.C.& H.R. R. R. Co., 67 N. Y., 417.)

(1301) The question in cases of accidents at crossings is, did the com-
pany and the injured person each use due care the one in the management
of its trains, the other inattempting to cross. (Cordellv. NV. Y. C. & H.R.
RR. Co., 70 NM. Y., 119.)

(1302) It is error to leave to ajury to say what signals-of an approaching
train should have been given to a traveller at a crossing in a particular
case. (Dyer v. Erie R. Co.,71 N. Y, 228.)

(1303) Whether placing a cattle-guard in a highway is negligence is a
question of fact. (Hoffmany, N. V. C. & H.R. R. R. Co., 75 N. Y., 605.)

(1304) Whether it is negligent for a railroad company to allow the space
between the plank and the rail at a crossing to be wider than is absolutely
necessary for the passage of trains is a question of fact. (Payne v. Troy &
Boston R. R. Co., 83 N. V., 572.)

(1305) Whether, when a railroad train is approaching a crossing, which,
while not a public crossing, is used by the public with the company’s con-
sent, it is a sufficient warning of its approach to ring the bell, is a question
of fact. (Byrne v. VN. Y. C.& H.R. R. R. Co., 104 N. Y., 362.)

(1306) Whether a railroad crossing, the edges of the planks of which are not
bevelled, is negligently constructed is a question of fact. (Spooner v. Del.,
Lack. & W.R. R. Co., 15 WN. Y., 22.)

(1307) Where a collision occurs between two street-cars on crossing tracks,
which might have been averted if the driver of one of them had seen the
other in time and slackened speed, it is for the jury to say whether he was
negligent in his management of his car. (Schneider v. Second Ave, R. R.
Co., 133 MV. V., 583.)

(2) Persons.

(1308) Whether precautions observed by a traveller on approaching a
railroad crossing are sufficient under the circumstances is a question of
fact. (Beisegelv..N. Y. Cent. R. R. Co., 34 N. Y., 622.)

(1309) Where view of a track is obscured at a crossing by standing cars,
and a person going over, as soon as he clears them, looks up and down,
there being a number of tracks, it is a question of fact whether he was
negligent, (/¢., 14 44d. NV. S., 29.)
646 CasEs CopIFIED. (Cuap. IV.

 

(1310) When a traveller approaching a railroad crossing observes some
precautions, itis for the jury to say whether he was negligent in crossing.
(Ernst v. Hudson Riv, R. R. Co. 35 NM. Y., 9.)

(1311) Whether a person killed at a crossing was guilty of contributory
negligence, held to be a question of fact. (Welch v. N. Y. Cent. R. R. Co.,
53 MV. ¥,, 610.)

(1312) Whether itis negligent for a travellerto go overa crossing behinda
train whose locomotive is a long way off, after he has been advised that the
train may back at any moment and he has stopped awhile to see if it does,
is a question of fact. (Zatonv. Erie Railway Co., 51 N. Y., 544.)

(1313) Whether it was negligent fora traveller at acrossing to fail at night
to see an approaching train, when he took precautions to look for one, is a
question of fact. (Carrv. N. Y.C.& A. R. R. R. Co., 60 N. Y., 633.)

(1314) It is a question of fact whether a person is negligent, who, crossing
railroad tracks on a city crossing, looks for trains both ways, stops between
two tracks for a train to go by on a further track, and is struck by a trainon
an intermediate track from behind, which gave no warning and was not
seen. (Haycroftv. Lake Shore & Mich. South. R. R. Co., 64 N. Y., 636.

(1315) Where a traveller takes some precautions at a railroad crossing,
which betoken care on his part, the question whether he has taken duecare
isone of fact. (Dolan v. Del. & Hud. C. Co., 71 N. Y., 285.)

(1316) Where a person crossing railroad tracks is on the alert against
danger from a train on one of the tracks, a presumption of continuance of
alertness against danger from a train on another track exists sufficiently to
make the question of his negligence one of fact. (Caseyuv. N.Y. C.& 4H.
R. RR. Co., 78 NM. V., 518.)

(1317) When there is any evidence, direct or inferential, of care on the part
of a person approaching a railroad crossing, to look for a train, the question
whether he was negligent in crossing is one of fact. (Greany v. Long Ls/,
&, R. Co., 101 NV. Y., 419.)

(1318) When a person is not negligent in starting to cross a number of
tracks, and while crossing is suddenly, without warning, confronted by dan-
ger from an approaching train under circumstances likely to produce
confusion of mind, it is a question of fact for the jury to say whether a
quickening of pace for advancing, rather than a stopping and retreating, was
negligent. (Sherry v. N.Y. C. & H.R. R. R. Co, 104 N. Y., 652.)

(1319) In a place where there is a maze of tracks. (Blaiser v. NV. Y., Lake
E. & W. RR. Co., 110 WN. ¥., 638.)

(1320) Whether a woman, who is being driven overa railroad crossing by
her husband, was negligent in allowing herself to be driven in front of an
approaching train, in plain sight, is a question of fact. (Hoag v. M. Y.C.
& HR. RR. Co. 11 M. Y., 199.)

(£321) In the absence of evidence as to whether a person protested against
being driven over a crossing in front of an approaching train, it is for the
jury to say whether or not a protest was made, and if they find it was not,

then to say whether such person was under the circumstances negligent in
remaining silent. (Zd.)
Quzs. Fact. ] CasEs CoDIFIED. 647

 

(1322) Whether it is negligent for a person crossing a railroadtrack under
gates, to omit to observe whether the further gate is stationary, the nearer
one being so, is a question of fact. (Feeney v. Long Isl. R. R. Co., 116 N.
¥., 375.)

(1323) When a person is crossing railroad tracks at a street crossing, the
gates being raised after a train has gone by and the gateman shouting to go
on, and while paying attention to his steps, is struck by an engine which
was hidden from his view by cars standing on a track close to where he
passes, it is a question of fact whether he is negligent in failing, after
clearing the end of the standing cars to discover the engine and stop in
time to prevent being struck. (Oldenburguv. N. Y.C.& H. R. R. R. Co.,
124 MV. Y., 414.)

(1324) Where gates at a crossing are raised as an invitation to the traveller
to cross after a train has gone by, whether he was negligent in doing so in
front of another train approaching is a question of fact, where it does not
conclusively appear that he could have seen the train in time to avoid it.
(Kanev. N. YV., N. H. & H.R. R. Co., 132 MN. Y., 160.)

(1325) Whether a person was guilty of negligence in crossing a track, just
after a train had passed which had left a trail of smoke, is a question of
fact, where it is shown that she was in full possession of her faculties, the
flagman was absent, she looked both ways, there was a curve in the track,
and no signal of approach was given by the engine, which was moving
rapidly. (McNamarav. N. Y.C.& H.R. R. R. Co., 136 N. Y., 650.)

(1326) Whether a person, having crossed twenty-four railroad tracks at
night, and seeing a headlight on a train, was negligent in not discovering
that it was on a track she was about to cross, the existence of which she did
not know, rather than upon another track, as she supposed, is a question of
fact. (Doylev. Penn. & N. Y. Canal & R. R. Co., 139 NV. ¥., 637.)

(Travellers Along.)
(1) Defendants.

(1327) Whether due care has been used in trying to pass another vehicle
on the road, or in refusing to yield passage, isa question of fact. (Burnham
wv. Butler, 31 NM. Y., 480.)

(1328) Whether a person driving along a street at night at six to seven
miles an hour is negligent in so doing is a question of fact. (Brook v.
Schwerin, 54 N. Y., 343-)

(2) Plaintiffs.

(1329) Whether it is negligent for a person with defective eyesight to walk
in the streets is a question of fact. (Davenport v. Ruckman, 37 NV. Y., 568.)

(1330) Whether a person crossing a street at night with some precautions
is careful enough is a question of fact. (Brook v. Schwerin, 54 NV. Y., 343.5

(1331) Whether it is negligent to take a number of horses over a bridge is
aquestion of fact, where the bridge would be strong enough to support the
number if it were in proper repair. (French v, Donaldson, 57 N. Y., 496.)
648 Cases CODIFIED. [Cuap, IV.

 

(1332) Whether a passer-by ina city street was negligent in failing to observe
anything projecting from the rear of a passing vehicle is a question of
fact, (Sheehy v. Burger, 62 N. Y., 558.)

(1333) Whether a person in passing over an unsafe sidewalk, knowing its
condition and using some care, was guilty of negligence, is a question of
fact. (Bullock v. The Mayor &. of N. Y., 99 NM. Y., 654.)

(1334) Whether a vehicle of unusual but not extraordinary dimensions is a.
proper one to be driven along a street is a question of fact. (Sewall v. City
of Cohoes, 75 N. Y., 45-)

(1335) Whether a person, who used some care in attempting to cross a street
crowded with street-cars, was negligent in failing to observe the approach
ofacar behind him, isa question of fact. (AfcClain uv. B’hkiyn City R. R. Co.,
116 WV. Y., 459.)

(1336) Whether the place occupied by a driver on a loaded vehicle was the
proper place for him to occupy, is a question of fact. (Bryant v. Town of
Randolph, 133 N. Y., 70.) :

Masters.
(1337) Whether an act of a servant was wilful and malicious or was mis-
takenly conceived by him to be a necessary use of force to carry out his

master’s orders is a question of fact. (Fackson v. Second Ave. R. R. Co., 47
N. Y., 274.)

(1338) Where the place in which a master requires a servant to work is
necessarily unsafe, it is for the jury to determine whether the master has
adopted all reasonable precautions to shield him from the danger he is
exposed to in working there. (A/ceGovernv. Cent. Vt. R. R. Co., 123 NV. Y., 280.)

(1339) In considering whether a master has properly provided for the safety
of his servants by adequate rules, a jury is not bound to find a particular
rule to be adequate or inadequate because some other master has adopted.
or rejected it. (Adel v. Del. & Hud, C. Co., 128 NM. Y., 662.)

Servants.

(1340) Where the master has indicated to his servant an intention to dis-
charge another servant who has become incompetent, it is a question of
fact whether it is negligent for the former to remain in the master’s employ.
(Lanitg v. N. Y. Cent. R. R. Co., 49 N. Y., 521.)

(1341) Whether an engineer, running (driving?) an engine on a railroad
track, has had thereby sufficient opportunity to become acquainted with
defects in the tracks making it unsafe, is a question of fact. (dMéehan v.
Syracuse, Bing. & N.Y. R. R. Co. 73 N- Y., 585.)

(1342) Where an engineer, in seeking to charge a railroad company for
negligence in omitting to maintain a safe road-bed, seeks to escape a
counter charge of negligence in himself running over it, it is a question of
fact whether he was guilty thereof, where it appears that he did so by
express orders, under a promise to repair, and that others had run over it
withoutinjury. (Haw/ey v. North. Cent. R. Co., 82 N. Y., 370.)
Ques. Fact. ] CasEs CoDIFIED. 649

 

(1343) Whether the use by a servant of a defective machine in a hurried
manner to get through work by a certain hour, when, while seeing the
defect, he does not know that it is a dangerous one, was negligent, is a ques-
tion of fact. (Kain v. Smith, 89 N. Y., 375.)

(1344) Whether a person is sufficiently acquainted with a dangerous spot
in a place where he works to make it negligent to fall into it is a question
of fact. (Bassett v. Fish, 75 N. Y., 303.)

(1345) Whether aservant, newly employed, has used due diligence to make
himself acquainted with the obvious dangers of the employment is a ques-
tion of fact. (Fredenburg v. North Cent, R. R. Co., 114 M. Y., 582.)

(1346) Whether the failure of a brakeman to discover, where he has but an
instant in which to do so, that a bumper on a moving car he is about to
couple to another will pass under the bumper of the latter, and allow his
hand holding up the coupling link to be crushed between the dead-woods ef
the cars, is negligent, isa question of fact. (Goodrichu. N. Y.C.& Hf. R.
RR. Co, 116 NM. Y., 398.)

(1347) Whether it is negligent for a boy to continue to work ata machine,
after knowledge that it is defective and dangerous, is a question of fact.
(McCarragher v. Rogers, 120 N. Y., 526.)

(1348) Whether a servant is negligent in working in a dangerous place,
when the master has failed to adopt all the reasonable precautions he might
adopt for his safety, is a question of fact. (AdeGovern v. Cent. Vt. R. R. Co,
123 WV.. ¥., 280 )

(1349) Whether under arule which says that all stations must be approached
cautiously, the running of an engine into a railroad yard at seven miles an
hour on a dark and foggy night was such want of care and caution, as con-
tributed to a collision with a standing engine, having no light that could be
Seen, is a question of fact. (Whittaker-v. Del. & Hud. C. Co., 126. Y., 544.)

Carriers.

(1350) Whether it is negligent for a driver of a street-car not to slow up
when a horse attached to a vehicle ahead is unmanageable is a question of
fact. (Clark v. Eighth Ave. R. R. Co., 36 N. V., 135-)

(1351) As to issue of negligence of carrier, in starting a car while passen-
ger is getting on, depending on inferences, see In General, supra. ( Wolfkiel
wu. Sixth Ave. R. R. Co., 38 N. Y., 49.)

(1352) Where a train on a dark night overshoots an announced station, it
is a question of {act whether the omission of the trainmen ‘to announce to
passengers that itis to back is negligence. (7Zader v. Del, Lack, & West.
RR, Co., 71 N. ¥., 489.) :

(1353) Whether a railroad company is yuilty of negligence in allowing a
passenger to alight from its train at night and unwarned at a spot where
there is a space a foot wide between the platforms of the car and the station,
isa question of fact. (Boyce v. Manhattan R’way Co., 118 NV. Y., 314.)

(1354) Whether a carrier is negligent in taking on board his conveyance
more passengers than can be conveniently accommodated is a question of
fact. (Lehr v. Steinway & Hunter's Pt. R. R. Co., 118 MV. ¥., 556.)
650 Cases CoDIFIED. (Cuap. IV.

 

(1355) Whether a conductor is negligent in prematurely crying out ‘‘alk
aboard” is a question of fact. (Lentuv. M. ¥. C.& H.R. R. R. Co., 120 XM.
Y., 467.)

(1356) Whether a common carrier’s,system of inspecting its vehicles is

sufficiently careful is a question of fact. (Palmer v. Del. & Hud. C. Co., 120
NV. Y., 170.)

(1357) In anaction to recover damages received while boarding a car, it is
error to leave to the jury to say whether the driver of another car of the
defendant, which happened to be passing, did his whole duty, in the
absence of proof that he managed it in any other way than the circum-
stances required. (Black v. B’kiyn City R. R. Co., 108 N. Y., 640.)

(1358) Whether the starting of a street-car before a passenger has had full
opportunity to get on was negligent, is a question of fact. (Morrison v,
Bway & Seventh Ave. R. R. Co., 130 NV. Y., 166.)

(1359) Where minute inspection of a brake-chain would reveal a flaw, and
only a general inspection is given, it is a question of fact whether the
inspection given was negligent. (Wynn v. Cent. Park, N. & E.R. RR.
Co., 133 WY. Y., 575-)

Passengers.

(1360) Whether a passenger is guilty of negligence in alighting from a traim
at a station, which is not announced, and to which he is a stranger, and
when a hurried stop is made, is a question of fact. (Dickinsv. N. Y. Cent.
R. R. Co., 1 Abd, C. A. D., 504.)

(1361) Whether it is negligent in a passenger to pass from ome car to
another on a moving train in search of a seat under a brakeman’s instruc-
tions 1s a question of fact. (A/clntyre uv. N. Y. Cent. R. R. Co., 37 N. Y., 287.)

(1362) Whether a passenger is guilty of contributory negligence in boarding
a train under circumstances which, but for the implied assent of the com-
pany, would render him negligent, is, where such assent exists, a question
of fact. (Hulbert v. NV. Y. Cent. R. R. Co., 40 NM. Y., 145.)

(1363) It is ordinarily a question of fact whether it is negligent fora person
to board a slowly.moving street-car. (Eppendorf v. Bkiyn City & N. R. R.
Co., 69 V. Y., 195.)

(1364) Whether a passenger, who knows that a train is reaching his station,
is juStified on a dark night in supposing when it stops that it has reached

the spot where he is to alight, is a question of fact. (Zaber v. Del, L.& W.
R. R. Co., 71M. Y., 489.)

(1365) Whether it is negligent for a passenger to cross a track at a station
without looking in order to take a train on the next track which has stopped.
to receive him, is a question of fact. (Jerry v. Hewett, 78 N. Y., 338.)

(1366) Itisa question of fact whether it is negligent for a passenger under
the conductor’s inducement to get off a slowly-moving train, which on
arriving at his station does not stop. (Bucherv. N.Y. C. &@ H.R. R. R.

Co., 98 N. Y., 128; Filer v. M. V. Cent. R. R. Co., 49 NM. ¥., 47; but see Mor-
vison v. Erie R. Co., 56 N. Y., 302.)
Ques. Fact. ] Cases CopIFIED. 651

 

(1367) Whether a passenger alighting from a train is guilty of negligence
in stepping into a vacant space between the platforms of the car and the
station, the existence of which is unknown to him and is hidden from his
view by preceding passengers, isa question of fact. (Boyce v. Manhattan
R. Co, u8 NM. Y., 314.)

(1368) Whether a passenger is negligent in complying with a conductor’s
premature cry of ‘‘all aboard” is a question of fact. (Lentv. VM. ¥. C. &
H.R. R, R. Co, 120M. Y., 467.)

(1369) Whether a man seventy years of age was negligent in attempting to
board a street-car, before it had fully stopped for him to get on, is a question
of fact. (Morrison v. Broadway & Seventh Ave. R. R. Co., 130 NV. Y., 166.)

(1370) Whether a passenger, in riding on the front platform of a crowded
car with the assent of the conductor, is negligent is a question of fact.
(Lehr v, Steinway & Hunters Pt. R. R. Co., 18 M. Y., 556.)

Pr .
Real Property aan

(1371) Whether an adjoining owner was negligent in omitting to notify a
railroad company of the defective condition of its fences and gates is a
question of fact. (Polerv. N. Y. Cent. R. R. Co., 16M. Y., 476.)

(1372) A jury may determine whether an owner of an apartment house
should have exercised such supervision over it as to prevent a young
unauthorized boy from acting so as to create the impression on tenants that
he was in fact a servant of the owner. (TZousey v. Roberts, 114 N. Y., 312.)

(Tenants and others.)

(1373) Whether it is negligent for a person to pass by a quarry, where
blasting is carried on, by an accustomed route, is a question of fact.
(Driscoll v. Newark & Rosendale L. & C. Co., 37 N. Y., 637.)

(1374) Whether itis negligent for a person familiar with premises, in which
there is a hatchway usually closed at a particular hour, to go upon the same
after that hour in the dark without a light, is a question of fact. (7often v.
Phipps, 52 N. Y., 354.)

(1375) Whether it is negligent for a person to fall into an excavation on
private premises, of which he had no knowledge, is a question of fact,
(Homer v. Everett, 91 N. Y., 041.)

(1376) Whether it is negligent for a tenant to descend a stairway, relying
on the supposition that a landlord’s promise to have a dangerous place in it
repaired has been fulfilled, is a question of fact. (Palmer v. Dearing, 93 N.
¥.,7-)

(Tracks crossing each other.)

(1377) Whether an engineer of a train, which has the right of way at a
crossing of two railroads, was guilty of negligence in failing to comply with
a signal to stop, intended for him, but which he might have thought was
intended for a train which did not have the right of way, is a question of
fact. (Woodv. N.Y. C. @ H.R. R. R. Co., 70 N. Y., 195-)
652 Cases CopIFIED. (Cuap. IV.

 

(1378) Whether the failure of an engineer on a locomotive to notice that
his track is obstructed, when the obstruction does not rest on the rails, but
hangs several feet above them and is not conspicuous; is negligence, is a
question of fact. (Albert uv. Sweet, 116 WV. Y., 363.)

Owners of Vessels.

(1379) Whether it is more prudent for a vessel caught in a fog ina harbor
to lie to or proceed cautiously is a question of fact. (Hoffman v. Union Ferry
Co., 68 MV. Y., 385.) ,

(1380) Whether due care has been used in properly mooring a vessel, so as
to withstand an expectable flow of ice, is a question of fact. (Carpenter v.
Llastern Transp. Co., 71 N. V., 574)

(1381) Whether a change of the course of a vessel, on being hailed at night,
whereby a collision occurs, which would have been avoided if she had kept
on her course, was negligent, is a question of fact. (Harris uv. Uebelhoer, 75
WV. Y., 169.)

(1382) Whether it is negligence to moor heavy boats to the spiles of a pier
is a question of fact. (Mew Fersey St. Co. v. The Mayor &c. of N. Y¥., 10g
N. ¥., 621.) :

Children.

(1383) Whether it is negligence in a boy to attempt to board the front
platform of a moving street-car, in obedience to orders from some one at
the rear is a question of fact. (AZowrey v. Central City Railway, 51 N.Y., 666.)

(1384) Whether it is negligent for a child of tender age to omit to look for
a train at a crossing depends on the circumstances. (McGovernv. N. YG
& H.R. R. R. Co, 67 N. Y., 417.)

(1385) The degree of care called for from achild in a given case is a ques-
tion of fact to be determined by the circumstances of that case. ( Zhurber
v. Harlem Bridge, M. & F. R. R. Co., 60 N. Y., 326.)

(1386) Whether aninfant, using some care, used the care which the circum-
stances called for from one of its age, is a question of fact. (Byrne v. N. Y.
C.& H.R. R. R. Co., 83 NM. Y., 620.)

(1387) Whether an infant of tender years was personally guilty of negligence
is a question of fact. (Dowling v. N. Y. C. & H.R. R. R.Co., g0N. Y., 670.)

(1388) Unless itis clear that a child of tender years is sui juris, it is for the
jurygto say whether it acted with the degree of prudence that might reason-
ably be expected under the circumstances from a child of its years. (Stone
v. Dry Dock, E. B.& BR. R.Co., 15 N. Y., 104.)

(1389) When an infant is shown to have used some care, it is a question of
fact whether it used all that its age and the circumstances required. (Swift
v. Stat. Isl. R. T, R. R. Co., 123 NV. Y., 645.)

Imputed Negligence.

(1390) Whether it is negligent for the attendant of a deaf child to allow
it to dart ahéad at a street crossing where no vehicies are in sight is a
question of fact. (Fetter v. N. Y. & Har. R. R. Co., 2 Abb. C. A. Da, 458.)
Ques. Fact. ] CasEs CODIFIED. 653

 

(1391) It is a question of fact whether it is negligent for a parent to allow
a boy of eleven years of age to cross a railroad track alone. (O'Mara v.
Hudson Riv. R. R. Co., 38 N. Y., 445.) ,

(1392) Whether it is negligentin a child’s parent to intrust it to the care of
‘an older child in the public streets is a question of fact. (Jh/v. 42nd St. &
Gr. St. F. R. R. Co., 47 N. Y., 317.)

(1393) Whether it is negligent to allow a boy of three years to ride on the
end of a wagon seat is a question of fact. (Bahrenburgh v. B’klyn City, H.
P.& P.P. R. R. Co., 56M. Y., 652.)

(1394) Whether it is negligent to allow a child of six years to play
unattended in a retired street is a question of fact. (Cosgrove v. Ogden, 49
NV. Y., 255-)

(1395) Whether the custodian of a child is negligent, who, while engaged
in work, withdraws attention from the child for a few moments, is a question
of fact, (Prendegastv. N. V. C.& H.R. R. R. Co, 58 N. Y., 652.)

(1396) Whether it is negligence in an attendant of a child of tender years,
to leave it for a few moments on a sidewalk in a busy street with a caution
not to go faraway, isa question offact. (Kunzv. City of Troy, 104 N. Y., 344.)

(1397) Whether it is negligence for parents to allow a child of four years to
play unattended on a sidewalk, when it has no other place for exercise and
they have no one to take charge of it, is a question of fact. (Birkett v.
Knickerbocker Ice Co., 110 N. Y., 504.) ;

(1398) Whether a parent is negligent, in allowing a child of tender years to
play upon the sidewalk in front of the house on a warm evening, is a ques-
tion of fact. (Huerzeler v. Central Cross T, R. R. Co., 139 NV. Y., 490.)

Miscellaneous.

(1399) Whether an attorney-at-law was negligentin taking a renewal note
with endorsements, which were evidently written before the insertion by
the maker of a special agreement in its body, is a question of fact, where
there is any evidence of acts on the part of the owner of the former note,
which might give rise to the interence that such owner had held the maker
out to the attorney as having authority from the endorsers to insert such
agreement. (Weyerhauser v. Dun, 100 WV. Y., 150.)

(1400) Whether itis negligent for a paying-teller to answer an inquiry as
to the validity of a certification without referring to the bank books, which
would have disclosed an alteration in date and amount, is a question of
fact. (Clews v. Bank of N, Y. Nat. Bk. Ass'n, 105 N. Y., 398.)

(1401) The fact that a medical expert testified that he has never known a
fall to produce a certain disease, does not make it error to submit to a jury
the question whether a fall has produced it, other experts. testifying that it
might, and the injured person having the symptoms after and not before
the accident. (Keane v. Village of Waterford, 130 N. Y., 188.)

(1402) Where the liability of the guarantor of the collection of a note
depends upon due diligence being used by the creditor in collecting it out of
654 Cases CoDIFIED, [Cuap. IV.

the maker, and such collection can only be made by means of proceedings to
set aside a general assignment by the maker, whether the creditor has used
due diligence in attacking the assignment isa question of fact, (Salt Springs
Nat. Bank v. Sloan, 135 N. ¥., 371.)

(1403) Where an accused physician ‘has been succeeded by another in
treating a patient, it is one of the issues to be tried by the jury whether any
bad results came from the latter’s treatment. (Link v. Sheldon, 136 N.Y., 1.)

Cross REFERENCES,

See Chap. VII, Evidence, sub. xom., Presumptions, Inferences,
Burd. of Proof, Non-Suit ; Chap. VIII, Causes ; Chap. X, Miscell.
Subj., sud. nom., Notice.
Devens. ] Cases CoDIFIED. 655

 

CHAPTER V.

DEFENSES.

AND HEREIN OF IMMATERIAL MATTERS,

§ 204. ‘The claim that a plaintiff has contributed to his own
injury by his own negligence is to be alleged and proved as an
affirmative defense in all actions except those where negligence
of the defendant is the gravamen of the cause of action.

See §§ 214-5, also 238-9.

§ 205. That a passenger was travelling on a free pass
according to the terms of which he assumed all risk of injury is
a defense in favor of the carrier, where the injury was the result
of the negligence of its servants.

Whether public policy allows the carrier to exempt itself against its:
own negligence, even as to free passengers, is still an open question,

§ 206. Payment by one of two wrong-doers, who did not act
jointly in inflicting an injury, does not operate in favor of the
other, if it was not accepted as a payment in full.

It was not intended to gather here all the rulings pertaining to ques-
tions of defense, but only those which would most likely be looked for
in the first instance in a chapter on defenses. There are many deci-
sions on such questions, and as to whether certain things are material,
which more properly belong to the main chapters, on causative and.
contributory negligence, and will readily be found therein under appro-
priate headings. As between a logical arrangement and a convenient
one for reference, the author has not hesitated to choose the latter.
One of the chief purposes of his undertaking is to facilitate the search.
for that elusive thing ‘‘a case in point.’? As the cases year by year
are becoming more and more differentiated the search grows harder,
and logic must give way to convenience. This statement is also made:
as an answer—the only answer that he can make— to the criticism that:
rulings similar in principle are not always placed together. He has
believed that the convenience of the ptofession would be better sub-
served by the arrangement adopted. When there is such a multitude
of cases in a single branch of the law, no system can be found, which
will enable the practitioner, even by the shrewdest detective work, to
get at once upon the trail of a case in point. It is often a wearisome
search, only ended at the trial when the case turns up in the hands of
the adversary. With a classification, according to the relations which.
the parties to the litigation bore to each other at the time the injury
occurred, strictly followed out, this code becomes a trial brief. More-
over whether a principle, which has been laid down as to one relation,
656 CasEs CoDIFIED. [Cuap. V.

 

shall be applied to another depends upon the law of analogy. Hence
there is after all no logical reason why similar rulings in regard to
different relations should be thrown together, simply because they have
been held to be analogous.
THE CASES COLLECTED IN THIS CHAPTER ARE
GROUPED UNDER THESE HEADINGS:

 

Municipalities. _ Payment.
aa fala Statute of Limitations.
Public Off., and Contractors. In General.
Masters. One Year.
Carriers. Two Years.
In General. Three Years.
* Ultra Vires. Contracts of Limitation.
Passes. Nui
As to Shippers. uisances
Miscell. Presentment of Claims.
Highways. Former Adjudication.
Permits. _ Miscellaneous,
Pe ee nee Gratuitous Services.
Owners i Commercial Paper.
Fencing. Other Contracts.
Miscell. “Matters.
Municipalities.

(In Actions Against Municipalities.)

(1404) Under the charter of the City of Brooklyn, as amended in 1862, an
action to recover damages resulting from the negligence of the city’s
officials in constructing a sewer will not lie. (Gray v. City of Bhkiyn, 2 Abd,
C. A. D., 267.)

(1405) Where a citizen has connected his drain with a city sewer under
permission from the proper officials, his failure to notify another official of
the fact, is no defense to an action against the city for damages resulting
from a setback of sewage through such drain due to the sewer being out of
repair. (Barton v. City of Syracuse, 36 N. Y., 54.)

(1406) The fact that a horse gets for a moment out of the control of his
driver as a result of a defendant’s negligence, does notrelieve the defendant
from liability for damages occurring to the horse while thus out of control.
(Mafhuley v. Mayor &c. of New York, 67 N. Y., 602.)

(1407) The fact that the opening of a street by a municipality was without
right does not excuse it from the duty of maintaining it in a safe condition.
(Sewell v. City of Cohoes, 75 N. Y., 45.)

(1408) The fact that Commissioners of Public Works are constituted by law
in acity to look after its streets, does not relieve the municipality from
responsibility for their condition. (Miven v. City of Rochester, 76 N. Y., 619.)

(1409) It is no defense to an action for damages sustained by a traveller,

by reason of an unsafe highway, that his horse was running away. (Ring
uw. City of Cohoes, 77 N. Y., 83.)
Derens. | Cases CopIFIED. 657

 

(1410) An act providing that a municipality shall not be liable in damages
for any misfeasance of its officers, does not exempt it from responsibility for
a failure to keep its streets in proper condition, where that duty is not
plainly devolved upon such officers and a remedy given against them for
nonfeasance. (Hardy v. City of Brooklyn, go WM. Y., 435.)

(1411) The fact that a policeman charged with the duty of reporting
nuisances might properly assume that a permit had been obtained for a pile
of bricks which he sees in the street, does not excuse the municipality from
aliability for damages resulting from ifs fall due to its being increased to an
unpermitted height. (Rehberg uv. The Mayor, 91 N. Y., 137.)

(1412) It is no defense to a municipal corporation that it has taken some
of the steps necessary to have lot-owners repair its sidewalk pursuant to its
ordinance, if it does not follow the matter up and see that the walk is
repaired. (Russell v. Village of Canastota, 98 N. Y., 496.)

(1413) 1t is no defense to a suit against a municipality to recover damages.
resulting from an unsafe street, that its inspecting officer did not think it was
unsafe and therefore did not report it for repair. (Goodfellow v, The Mayor,
100 WV. Y., 15.)

(1414) The fact thata municipality has not acceptedacontractor’s work on
a street is no ground of defense to an action for damages sustained by his
leaving it in an unsafe condition, where it has allowed the street to be
opened for travel. (Turner v. City of Newburgh, tog N. Y., 301.)

(1415) Where one person is injured through the negligent act of another,
the fact that the negligence of a third, engaged with the first in a common
undertaking, contributed to the injury, does not exempt the second from
the consequences of his own negligence. (Galvinv. The Mayor &c. of N.
V., 112 WM. Y., 223.)

(1416) A charter of a municipal corporation which provides that it shall not
be responsible for nonfeasance of its officers as to any duty imposed upon
them by it, only relieves the corporation from responsibility for their negli-
gence ina case where a plain duty is by it imposed upon them to do, or not
to do, a particular thing, (Bieling v. City of B’klyn, 120 N. Y., 98.)

(1417) The fact that the statute imposes upon railroad companies con-
structing tracks across highways the duty of restoring the highway to a
safe condition, does not relieve the highway commissioner from his duty to
see that the highway at that point is safe for travel. (Bryant v. Town of
Randolph, 133 N. Y., 70.)

(1418) Defects in proceedings by a municipality, under the statute, to
condemn lands forstreet purposes, even if sufticient to make the proceedings
void as to persons whose land is sought to be taken, afford no ground to
excuse the municipality from a duty to maintain the street in fit state for
travel. (Seymour v, Vill. of Salamanca, 137 N. Y., 364.)

See Tit. II of Chap. II; also Highways and Statutes of Limitations, infra,
also Chap. X, Misc. Subj., sad. xom., Recovery over and Presentation of
Claims.

(Za Actions by Municipalities.)

(1419) Amunicipality does not, by entering into a contract for the erection
of a building thereby give a license to violate its ordinances as to placing
obstructions on its streets. (City of Rochester v. Montgomery, 72 N. Y., 65.)
658 Cases CopIFIED. [Cuap. V.

 

Public Officers and Contractors.

(1420) The failure of a sheriff to return an execution within sixty days is
not justified by the receipt by him of an attachment against the execution
creditor, (Wehle v. Connor, 63 MV. Y., 258, see also Brookfield v. Remsen, 1
Abb. C. A, D., 210.) :

(1421) It is not a ground to relieve a public contractor from liability for
‘damages resulting to a passer-by on a sidewalk from the negligence of his
workmen in leaving a hole in it unguarded, that the contractor’s work on
the sidewalk was not the subject of a special contract, but was done under
directions of the city authorities by virtue of a clause ina contract for
other work, which reserved to the city the power to vary or extend the
same. (Charlock v. Freel, 125 N. Y,, 357.)

See Title III of Chap. II.

Masters.

(1422) A servant may waive the performance by the master of his duty to
such servant. (Shaw v. Sheldon, 103 VV. Y., 667.)

(1423) A paper signed by aservant already inemploymentand without any
promise by the master of continuance of employment, or threat of discharge
in which the servant agrees that the master shall not be liable in any case
to such servant for any injury by reason of the master’s negligence, is not
a bar to an action by the servant against the master to recover damages for
such aninjury. (Purdy v. Rome, W. & Og. R. R. Co., 125 NV. Y., 209.)

(1424) Defects in carrying out the requirements of the act requiring fire
escapes to be placed on certain factories are not material, where the in-
spector has given his approval of the work as done, and there is no proof
that an employee met his death because of them. (Pauley v. Steam G. & L.
Co., 131 NV. ¥., 90.)

(1425) The failure by a master to place in the hands of hisemployeea book
of rules for his guidance is immaterial where the employee knows of the
book, has access to it, and knows that it contains the rules for his guidance,
(Lacray v. N. Y., Lake Erie & W.R. R. Co., 132.N. ¥., 570.)

See Art. I of Tit. IV of Chap. II, Masters, sud. nom., Resp, Super., Scope
of Emp., and Co-servants,

Carriers.
(Z2 General.)

(1426) It is no defense against an action by a passenger to recover
damages for negligence that the carrier agreed to carry him without
compensation. (oltonv. Western R. R. Co., 1 5. V., 444. See Passes, infra.)

(1427) It is no defense in an action by the passenger for damages for a
breach of the contract to carry, that it was due toa willful act of the carrier’s
servant. (Weed v. Panama R. R. Co., 17 N. Y., 362.)

(1428) The custom of skillful manufacturers is not conclusive upon the
question whether the requisite amount of care has in a particular case

been used in making a vessel safe for the Carriage of passen
ers. (Cald-
wellv. N. F. Steamb. Co., 47 NV. Y., 282.) ah : “
Derens. | Cases CopiFrEep. 659

 

(1429) While failure to comply with the provisions of law subjects a
common carrier to the charge of negligence, his compliance therewith does
not necessarily relieve him from such a charge. (/d.)

(1430) An inspection of a steamboat boiler and a certificate by a U. S.
Inspector that it comes up to the requirements of the Acts of Congress do
not exonerate the owner from his common law liability to respond for
negligence in having a boiler on his boat which is really unsafe. (Swarthout
uv. N. F, Steamboat Co., 48.N. Y., 209.) :

(1431) The fact that at the moment of passing a station the engineer of a
locomotive cannot control it does not excuse the company from the
consequences of its fastrunning at such a place. (farsons v. N. Y. C. &
H.R. R. R, Co., 113 NM. Y., 355.)

(1432) The excellence of a defendant’s rule for, or method of, doing its
business is immaterial where the issue is whether a stranger interfered with
the carrying out ofsuch rule or following such method, and the circumstances
are such that if he did interfere defendant was not negligent. (Ferry v.
Manhattan R’way Co., 118 N. Y., 497.)

(Ultra Vires.)

(1433) Where a corporation other than municipal, while carrying on a
business which its charter does not warrant, negligently injures a person,
the plea of ultra vires is no defense. (Bissell v. Michigan South, R. R.-Co.,
22 NV. Y., 258.)

(1434) Itisimmaterial to the question as to the duty of care to a passenger
whether a contract to transport a passenger is ultra vires. (Buffett v. Troy
& Boston R. R. Co., 40 NV. Y,, 168.)

(Passes.)

(1435) A clause in a free pass exempting the carrier from damages to the
passenger from the negligence of its servants is not against public policy.
(Wells v. N. Y. Central R. R. Co., 24 N. Y., 181.)

(1436) When a railroad pass exempts the carrier from responsibility for
the negligence of its servants, it means what it says, gross negligence as
wellasslight. (Perkins v. N. Y. Central R. R. Co., 24 N. Y., 196.)

(1437) A recovery for damages to a passenger from negligence may be
had, notwithstanding the contract under which he rides contains a clause
exempting the carrier therefrom, if such contract is one providing for the
transportation of freight for hire and the passenger is to look after it during
transit. (Smithv. N. Y. Cent. R. R. Co., 24 N. Y., 222.)

(1438) A common carrier may lawfully contract to exempt itself from
liability for negligence in consideration of carrying a person and his
property at reduced rates. (Bisse//v. New York Cent. R. R. Co.,25 NV. Y., 442.)

(1439) Loading stock on a car is not part of a journey so as to come within
a clause in a pass exempting a carrier from injuries to persons riding
free to take care of the stock. (Stinson v. N. Y. Cent. R. R. Co., 32 NV. Y.,

333-)
660 Cases CopDIFIED. [Cuap. V.

 

(1440) After stock have been loaded on a train about to start, and the
person, who isto take charge of them under the provisions of a drover’s
pass, is about to take passage thereon, the journey is to be deemed to have
begun so as to make the exemption clause of the pass apply. (Poucher v.
N. Y. Cent. R. R. Co., 49 N. Y., 263.)

(1441) A contract to carry a person free, assuming no liability in the
matter, is not sufficient to free a carrier from liability for the consequences
of its negligence. (Blair v. Erie Railway Co., 66 N. Y., 313.)

(1442) When acommon carrier is required by law to transport any one
without charge, the latter’s involuntary acceptance of a pass, containing a
stipulation against liability for damages, does not operate as a forfeiture
of the right to recover them. (Seybolt uv. NV, Y., Lake hrie & WR. R. Co., 95
4. Y., 562.)

(1443) Whena personis travelling under a pass containing the usual agree-
ment of assumption by him of all risk of accident, his purchase of a seat in
a drawing-room car does not nullify such agreement. (Ulrichu. MY. Cy
& H.R. R.R. Co., 108 N. Y., 80.) :

(1444) When a messenger of an express company is being carried by a
railroad company pursuant to a contract between the companies, ot which
he has no knowledge, the railroad company’s duty to him to carry him
safely is not absolved by a clause in the contract whereby all the risks of
such carriage are assumed by the express company. (Brewer v. NV. Y., Lake
Erie & W.R. R. Co., 124 N. Y., 59-)

(1445) General language, ina contract forthe carriage of persons, releasing
the carrier from an; liability for damage to them, does not exempt the carrier
from liability for the negligence ofits servants. (Kennev.N. Y.C.&
Rk. R. R. Co., 125 N. Y., 422.) y

See Art. II of Tit. IV of Chap. II, Carriers, sud. zom., Of Passengers.

(As to Shippers.)

(1446) An agreement by ashipper of animals, to load and unload the stock
at his own risk, applies only to injury to the stock. (Stimsonv. NV. Y. Cent.
BP. #. Co., 32 N. Y., 333-)

(1447) Where a consignee is notified by the carrier of the arrival of the
goods, he cannot excuse his neglect to remove them within a reasonable
time by the plea that his own affairs required his attention to be given to
other matters. (Hedges v. Hudson River R. R. Co., 49 N. Y., 223.)

(1448) Where at the time a passenger checks trunks, the carrier has notice
tha? they do not contain baggage, and charges and receives compensation
for carrying them, the fact that a loss of them occurs through negligence is
immaterial. (Sloman v. Great West, R. R. Co., 67 N. Y., 208.)

See Art. II of Tit. IV of Chap. II, Carriers, sad. zom., Of Goods.

(Other Cases agst. Carriers.)
(1449) A contract of towage at owner’s risk does not release the tow-er for

damages occasioned by his gross negligence. (Alexander v. Greene, 7 Hill,
533, Wells v. Steam Nav, Co.,8 N. Y., 375.)

(1450) Persons engaged in the business of towing may make contracts to
tow at owner's risk. (Wells v. Steam Nav. Co., 2 N. Y., 204.)
Devens. ] Cases Copirirp. 661

 

(1451) A telegraph company cannot limit its common law liability for
negligence by a mere notice. (Pearsall v. West. Un. Tel. Co., 124. Y., 256.)
' And see Reference at end of last subdivision. Also last Art. of same Tit,
Misc. Def., sub. nom., Spec. Carriers.

‘Highways. ee

(1452) Permission of city authorities to dig a ditch in the highway is imma-
terial in a case where an injury results from the negligent way in which it
isdone. (Sexton v. Zett, 44 NV. Y., 430)

(1453) A reservation, in a license to lay tracks in a street, of a right to
revoke it on the licensee’s failure to comply with an agreement to keep the
streets safe for passage, does not affect the liability of the licensee for dam.
ages sustained by the licensor by reason of the licensee's failure to keep
thatagreement. (Mayor Svc. of Troy v. Troy & Lans. R. R. Co., 49 N. Y.,
657.)

(1454) A permit by the proper municipal authorities to construct a coal-
hole in a sidewalk does not give any right to let the hole remain uncovered.
(Jennings v. Van Schaick, 108 N. Y., 530.)

As to inference of granting of permit, see Chap. VII, Evid., sué.
nom., Inferences.
(2. R. Crossings.)

(1455) An ordinance limiting the speed of railroad trains at certain places
in a city is immaterial when the accident occurs at another place. (Calligan
wu NV.C& &.R. R. Co., 59 NV. Y., 651.)

(1456) The fact that the track belonged to another company, by which a
flagman at acrossing isemployed, is immaterial upon the question whether
a defendant’s train was negligently run at such crossing. (McGrath v. N. Y.
C.& H.R. R. R. Co., 63 MV. Y., 522.)

(1457) Obstructions to the view of the track at a railroad crossing are only
material upon the questions whether the company and the injured person
have each used due care at the crossing, the one in the management of its
train, the other in attempting to cross. (Cordellv.N. Y.C.&@ H.R. RR.
Co., 70 N. ¥., 119.)

(Miscell.)

(1458) Want of knowledge of an unsafe condition of its track is no defense
toa street-car company to a charge of negligence in not repairing it.
(Worster v. Forty-second St. &c. R. R. Co., 50 N. Y., 203.)

_ (1459) So long as a person when crossing a street looks up and downit, it
is immaterial whether he knows it is a street on which fast driving is
indulged. (Moody v. Osgood, 54 NV. Y., 488.)

: (1460) That a person, injured ina collision between a street-car and a
wagon, was riding on the car platform, is not available to the owner of the
wagon asa defense. (Connolly v. Knickerbocker Ice Co., 114 N. Y., 104.)

:, (1461) Where the issue is whether a person has been negligently run over
by a street-car, the fact that ice on its track is due to the company’s
negligent failure to remove it is immaterial. (St/berstein v. Houst., West St.
& Pav, F. R. R. Co., 117 Nz ¥., 293.)
662 Cases CoDIFIED. [Cuap. V.

 

oO é
MULES ( Fencing.)

(1462) Acceptance from a railroad of its covenant to fence one side of its
road is not a release of the obligation under the statute to fence the other
side. (Shepard v. Buff. N. Y. & Erie R. R. Co., 35 N. Y., 641.)

(1463) The grant to a railroad company of a strip of land through a farm
for purposes of its road without reservation or exception is not a waiver of
its statutory obligation to maintain a farm crossing. (Smith v. N.Y. & Os.
Mid. R. R. Co., 63 N. Y., 58.) ,

(1464) The fact that an injury is committed by an engine, which though
running on defendant’s track, is not owned by it, does not excuse defendant
where it retains possession of its tracks. (Dolan v, Newburgh, D. & CR. R,
Co., 120 NV. Y., §71.)

(1465) Inan action to recover damages for killing cattle, which have
strayed from an adjoining farm on to the unfenced tracks of a railroad com-
pany and thence to the unfenced adjacent tracks of the defendant,
evidence that the space between the tracks of the two companies was not
wide enough to make it safe for passengers and employes to have a fence
there, is irrelevant. (Kelverv. N. V., Chic, & St. L.R. R, Co., 126M. Y., 365.)

See Art. IV of Tit. [V of Chap. II, Owners, sad. zom., Fences.

(Miscell.)

(1466) Itis no defense in behalf of an owner ofa vessel engaged in carrying
passengers and managed by his own servants, that at the time a passenger
thereon loses his baggage the vessel is under charter to another carrier.
(Campbe.lv. Perkins, 8 N. Y., 430.)

(1467) In an action to recover damages to one’s property by stones being
thrown upon it by blasting on adjoining land, evidence on the part of
defendant that the blasting was carefully done is immaterial where there is
no claim for exemplary damages. (Z7remain v. The Cohoes Co.,z NV. Y., 163.
See Congreve v. Morgan, 18 NV. Y., 84, infra.)

(1468) If the management of a steam engine is negligent, it is immaterial
that the engine is constructed and managed in the usual way. . (Hinds v.
Barton, 25 N. V., 544)

(1469) Where an excavation in a highway is dug without license from the
proper authorities, the fact that it was dug by a contractor does not shield
the person for whom it was dug from liability for damages resulting from
it. (Creed v. Hartman, 29 N. Y.. 591.)

(g470) The owner of the land under a street has the right to excavate the
soil under it, and occupy the space so long as he does not interfere with the
public right of way. (McCarthy v. Cily of Syracuse, 46 N. Y., 194.)

(1471) The fact that a married woman gave her husband her consent to
carrying on the business of liquor selling on her premises before the Civil
Damage Act was passed is immaterial where she did not stop it afterwards.
(Mead v. Stratton, 87 N. Y., 493.)

(1472) Wherea person isinjured upon leased premises, which are not ina
safe condition, it is immaterial that the lessee agreed to keep them in good
repair, ifit does not appear that he was negligent in failing to discover and
remedy the defect. (Odell v. Soiomon, 99 WV. Y., 635.)
DEFENS. | Cases CopIFIED. 663

 

 

(1473) The fact that an injury is committed by an engine which, thougb
running on defendant's track, is not owned by it, does not excuse a
defendant where it retains possession of its tracks. (Dolan v. Newburgh, D.
& CR. R. Co., 120 MV. Y., 571.)

(1474) Where a married woman knowingly harbors a vicious dog on
her premises, the fact that it belongs to her husband who is living on them
as the head of the family, is no defense. (Quilty v. Battie, 135 WV. Y., 201.)

Payment.

(1475) Payment by one wrong-doer of asum of money in anaction against
two, upon no other agreement than that the action shall be discontinued, is
no defense to a subsequent action against the other. (Barrett v. Third Ave.
RR. Co., 45 NM. Y., 628.)

(1476) A cause of action ex delicto is not extinguished by the recovery and
satisfaction of a judgment, for the full amount of the damages claimed,
against a stranger, in no wise joined in liability with defendant. (Atlantic
D. Co.v. The Mayor, 53 N. Y., 64.)

(1477) Settlement with the wrong-doer, by the owner of property destroyed
by a fire due to former’s negligence, does not affect the right of aninsurance
company, on paying the amount of its policy to the owner, to recover the
amount from the wrong-doer, when the insured reserved all claims against
the company. (Conn. Fire Ins. Co.v. Erie R. Co.,73 NV. V., 399.)

(1478) Where a person injured by the negligence of another, obtains in his
lifetime a recovery of damages for the injury, and afterwards dies from the
effects of the injury, his personal representatives cannot maintain an action
for damages for causing his death. (Littlewood v. The Mayor &c. of N. Y.,
89 WV. Y.,.24)

(1479) Payment for an injured person’ssupport after an accident, is nota
bar to an action to recover the damages sustained by the next of kin for his
death, unless it was paid under an agreement with him that it was to be in
liquidation of the damages he sustained. (Murray v. Usher, 117 N. ¥., 542.)

See Chap. X, Misc. Subj., swb. zom., Satisfaction.

Statute of Limitations.
(fz Gen:zral.)

(1480) The fact that a railroad company incorporated in another state has
property in this state and a managing agent and office herein, does not
enable it to claim the benefit of our statute of limitations. (Rathbun v. North,
Cent. R. R. Co., 50 N. V., 656.)

(1481) The neglect of the holder of an endorsed promissory note, payable
on demand at a specified place, to make such demand within six years from
its date, does not operate to give the endorser a defence under the statute
oflimitations, (Purker v. Stroud, 98 N. Y., 379.)

(1482) The injuries to adjoining property from water percolating through
a reservoir, negligently built by the state, being inflicted from time to time,
the statute of limitations does not begin to run at the time of the building
of the reservoir. (Recd v. The State, 108 NV. Y., 407.)

(See McDougall v. State of N. Y., tog NM. Y., 73.)
664 Cases Copirimp. [Cuap. V.

(1483) The neglect of a city to make assessments for benefits in widening
astreet, is not the basis of a right of action in a property owner to recover
an award for damages for property taken. (Question was as to whatstatute
of limitations governed. Donnelly v. City of Brooklyn, 121 N. Y., 9.)

(1484) Construction of temporary statute. (Goillotel v. The Mayor, 87 X..
Y., 441, Watson v, Forty-second St. Gc. R. R. Co., 93 N. Y., 522.)

(One Year.)

(1485) The yearallowed by § 405 of the Code (old Code § 104) within which
to begin an action, after a reversal in a former action without grantinga new
trial, runs from the final decision on the last appeal.’ (Wooster v. 42d St. &
Grand St. Ferry R. R. Co., 71 N. Y., 471.)

(1486) Under chap. 572 of Laws of 1886, no action against any city having
fifty thousand inhabitants or over, can be maintained, unless it is commenced
within one year after the cause of action has accrued, nor unless notice of
intention to begin it is served upon the law officer of the city within six
months thereafter. (Curry v. City of Buffalo, 135 NV. Y., 366.)

See Chap. X, Misc. Subj., sab. zom., Presentment of Claims.

( ZwoeYears.)

(1487) Against villages. (Laws of 1870, Chap. 291, § 9, as am. by Laws of
1889, Chap. 440.)

(Three Years.)

(1488) An action against the City of New York to recover damages for a
personal injury resulting from negligence must be begun within three years
from the time when the right arises to make a demand on the comptroller
for payment. (Dickinson v. The Mayor, 92 N. Y., 584—changed to one year
by act of 1886, see Curry case, supra.) ,

(1489) Actions for loss of service through negligence must be brought

within three years from the time the cause of action accrued, (Maxson v.
Del., Lack. & W.R. R. Co., 12 N. Y., 559.)

(1490) The fact that a complaint in setting forth a cause of action to
recover damages for negligence statesit as arising ex contructu, does not
make the case one in which to apply the six year limitation as to actions
on contract. (Webberv. Herkimer &c. Street R. R. Co., 109 N. Y., 311.)

Contracts of Limitation. Sce Chap. IX, Pleading, sud, nom,
Ans,

Nuisance.

(1491) Where an injury résalts from a nuisance in a highway, it is imma
terial whether negligence caused the nuisance. (Congreve v. Morgan, 18 N.
¥., 84. See 7remain v. Cohoes Co., 2 N. Y., 163, supra, also Chap, X.)

Presentment of Glaims. See Chap. X, Misc. Subj.

Former Adjudication. oa
Derens. | Cases CopiFizp. 665

 

Miscellaneous Matters.
(Gratuitous Services.)

(1492) The fact that a trustee or director of a bank acts gratuitously, does
not permit him to act negligently. (Hunv. Cary, 82 NV. Y., 65.)

See Art. V of Tit. 1V of Chap, II, Miscell. Deft., sud. xom., Professional
Men.

(Commercial Paper.)

(1493) Where a bank receives a bill of exchange for collection in another
state, itis not excused because the failure ofits correspondent to give notice
of non-acceptance was due to the fact that by the law of such other state
notice of non-acceptance was not necessary. (Adlenv. Merchant's Bk., 22
Wend., 215.)

(1494) Only a general usage and practice among banks, or general under-
standing among merchants, showing that in such cases the banks
undertaking to collect such bills of exchange were not to be held liable for
neglect of correspondents, or an express contract, can operate to excuse the
bank for such neglect. (/d.)

‘ (1495) The solvency of the maker is not a defense to an action to recover
damages for discharging an endorser by a failure to properly protest a
note. (Coghlan v. Dinsmore, 1 Abb. C. A. D., 375.)

(1496) Certification of check. (Clews v. Bank of N. Y. Banking Ass'n, 89
N. Y., 418.)

(Other Contracts.)

(1497) Under policy of insurance, providing for subrogation of loss due to
carrier’s negligence. (Fayerweather v. Phoenix Ins. Co., 118 M. Y., 324.)

(1498) Where the execution ofa contract other than a negotiable instrument
is obtained by fraud, the party executing it is not liable upon it even to an
innocent third party who has acted on faith of it, unless he was guilty of
negligence in its execution. (Page v. Krekey, 137 N. Y., 307.)

(Other Matters.)

(1499) Want of privity is no ground for exemption from a liability for dam-
ages resulting to one man through the negligence of another while carrying
outa contract made with a third. (Bairdv. Daly, 57 N. Y., 236.)

(1500) The defense of contributory negligence is not available against an
owner of stolen property in an action against an innocent purchaser for its
conversion. (Feasev. Smith, 61 WV. Y.. 477.)

(1501) Inanaction against a surgeon for malpractice it is material whether
at the time he treated the patient he was or was not reputed to be, or was
or was not, a skillfulsurgeon. (Carpenter v. Blake, 50 N. Y., 696.)

(1502) If a patient sustains injury through negligent treatment of a physi-
cian, subsequent negligence of the patient, or of another physician, forms
no bar to the action. (/¢.)
666 Cases ConiFIED. [Cuap. V.

(1503) The fact that it was through the negligence of its trustee that an
estate was gained by adverse possession, does not enable the beneficiaries to.

avoid such title. (Bennett v. Garlock, 79 N. Y., 302.)

(1504) Under the Civil Damage Act it,is immaterial that the act of the
intoxicated person which causes the injury to the plaintiff was not an
expectable consequence of theintoxication. (Weuv. McKechnie, 95 NV. Y., 632.).

(1505) It is immaterial that a plaintiff locates his accident at the wrong
spot, if he does so honestly, and it was due to defendant’s negligence.
(Barker v. Paulson, 116 N. Y., 660.)

(1506) Improper medical advice or treatment is not a defense in behalf of
.the person whose negligence rendered medical aid necessary. (Alberti v.
N. Y«, Lake Evie & W. RR. Co., 118 N. Y.,°77, Lyons v. Erie R. Co., 57 N.
Y., 489, Sauter v. N. Y. Cent. R. R. Co., 66 NM. Y., 50.)

Cross REFERENCES,

See Chap. II, Caus. Neg.; Chap. III, Cont. Neg.; Chap. IX,
Pleadings ; Chap. X, Misc. Subj.
_Damacgs. ] CasEs CopIFIzD. 667

 

CHAPTER

DAMAGES.

§ 207. Any one, who sustains damages to person or property
from the causative negligence of another, may recover the same,
prospective as well as past.

§ 208. The damages sustained, whether past or prospective,
can only be recovered in one action.

§ 209. Where a bodily injury is sustained by a wife, child, or
apprentice, the husband, parent, or master, as the case may be,
may recover for loss of services in addition to arecovery by the
person injured.

Whether a master can maintain a suit for loss of services of a
servant not an apprentice, and not working under an agreement as

_ to time, is doubtful. Even if he could, in a case where the servant

’ had by contract time still to serve, there would be a question as to the

measure of damages, for the master might be able to replace the
servant by another equally competent. But suppose the case of a
professional person rendering services as an employee, and noteasily
replaced. If such a person were a wife also, it might be a costly
thing for a carrier to injure her when travelling, as three separate
suits might be maintained, growing out of one injury.

§ 210. The mother of an injured child may sue for loss of

service where the father is dead, or, if he is not living with her,
when the child is under her care and custody.

§ 211. The items of damages’ for a bodily injury are pain and
suffering, and also, when specially pleaded, expenses for phy-
sicians, medicine, nursing, loss of time or money, whether past
or prospective, and any other pecuniary injury which may result
therefrom.

§ 212. Where the injury is 6 a widow or next of kin through
causing death, the recovery cannot exceed five thousand dollars,
whether the death occurred in: this state, or in a state whose
death act allows recovery of al larger sum, except that interest
on the amount of the verdict from the time the injury occurred
to the time of trial must be added.

As this book is going through the press, a clause abolishing the
$5,000 limit is being debated in! the constitutional convention. The
author has ventured to suggest ' 40 one of the delegates that in the
668 Cases CoDIFIED. [Cuapr. VI.

 

proposed amendment there should be a clause empowering the court
to pass upon the propriety of all contingent fee agreements in such
cases. It is true that the constitution is not the place forit. Neither is
it for the amendment.

It would bea monstrous injustice to allow the 50 per cent. scale,
now in force by those, who make a specialty of this ‘‘ business,’ to
be applied to the increased verdicts, which are to be expected if this
amendment is carried. Indeed, it were well if all contingent fee
agreements were to be made by statute subject to the approval of
the court wherever a suitor requests it. There is little doubt but that
an unconscionable agreement cannot now be enforced. But the
trouble is that the adviser whose duty it is to tell the client that it
can not be, isthe very person whose interest it is not to tell him. Right
here is the difficulty about contingent fee agreements. It is not that
they are wrong in themselves, or even improper. No lawyer ought to
refuse to take the poor man’scase. If he takesit, itis right that he should
be paid out of the recovery. It is also right and eminently fair that he
should receive an increased compensation for the risk of getting no
payment atall. The vice, as in so many other cases, is in the abuse,
not the use. The abuse could be corrected, if there were some require-
ment of law, under which every suitor should be informed that his
agreement with his lawyer for a contingent fee is subject to the
approval of the court, if he wishes to invoke the court’s views.

$ 213. In estimating the pecuniary damages sustained in a
case mentioned in the last section, medical expenses, funeral
expenses, and loss of parental care, nurture and instruction,
intellectual and moral, may be taken into account.

COLLECTED FROM THE FOLLOWING DECISIONS,
GROUPED UNDER THESE HEADINGS :

Items of Damage.
Pain and Suffering.
” Expenses.
(1) In General.
(2) For Physicians.
(3) For Medicine.
(4) For Nurses.
(5) ToSupply Place,
Loss. ;
(1) Of Time.
(2) Of Use.
(3) Of Earnings,
(4) Prof. Earnings.
(5) Of Profits.
Interest.
Exposure.
Invalids.

 

Prospective Damages.
To the Injured Person.
To Husbands.

To Parents.
To Children.

Special Acts,

Apprentice Act,

Law of Koad.

Civil Damage Act,
Death Act—Our Own.
Other Death Acts.

Limitation by Contract.

Exemplary Damages.

Mitigation of Damages.

Nominal Damages.

Miscellaneous.
Damaces. | Cases CopDIFIED. 669

Items of Damage.
(fain and Suffering.)

(1507) An inj ured person may recover damages for the bodily pain and
suffering caused by theinjury. (Ransom v. N. V., & Erie R. R. Co., 15 NW.
Y., 415.)

(1508) A person injured through another’s negligence is entitled to recover
what, in the judgment of the jury, he should receive for his bodily sufferings.
(Swarthout v. N. F. Steams, Co., 48 NV. Y., 209.)

(1509) Increased pain at childbirth due to an injury isan item. (De Forest
v. City of Utica, 69 N. Y., 614.)

(1510) Fancied pain in an amputated limb is an item. (Aickenbottom v, D.
L.& W. RR. Co., 122 MN. Y., 91.)
(Expenses.)
(1) In General.

(1511) Expenses of a sickness are items. (Williams v. Vanderbilt, 28 N.
Y., 217, Sheehan v. Edgar, 58 N. Y., 631.)

(2) For Physicians.

(1512) Physicians reasonable bills are items. (Gumébv. 23d St. R. R. Co,
114 WV. V., 411, Feeney v. Long Isl. R. R. Co., 116 NM. Y., 631.)

(3) For Medicine.

(1513) Expense for medicine is a properitem. (Metcalf v. Baker, 57 N.
Y., 662.)

(4) For Nurses.

(1514) So as to nurses. (Barnes v. Keene, 132 NM. Y., 13-)

(5) To Supply a place.
(1515) So as toa supply of one’s place. (Gumb v. 23d St. Co., supra.)

(Zoss.)
(1) Of Time.

(1516) Time lost by a passenger through an unreasonable failure of a
common carrier to forward him on his journey, his expenses, the cost of
continuing his journey, or his return if necessary, sickness occasioned
thereby, and the expense thereof, are all items of recoverable damage.
(Williams v. Vanderbilt, 28 N. Y., 217.)

_(2) Of Use.

(1517) The value of the use of an injured article lost while it is being
Tepaired, is a proper item of damage. (Whitehall Tr. Co.v. N. F. Steamb.
Co., 51 NM. Y., 360.)
670 Cases CoDIFIED. (Cuap. VI.

 

(3) Of Earnings.

(1518) The amount of wages lostisan item. (Beisiegel v. N. Y. Cent. &.
R. Co., 40 NV. Y., 9, Kessel v. Butler, 53 N. Y., 612, Sheehanv. Edgar, 58 N.
Y., 631.)

.

(1519) Loss of power to earn money is not an item of damage to a married
woman unless she is actually engaged in business or labor on her own
account. (Filer vu. NV. Y. Cent. R. R. Co., 49 N. Y., 47.)

(1520) Where a married woman, who takes charge of her family, earns
money in addition by days work away from home, it may be taken into
accountin estimating the damages she sustains through another’s negligence,
(Brook v. Schwerin, 54 N. Y., 343.)

(1521) Loss of earnings are not recoverable as special damages by a
married woman, injured through negligence, where there is no allegation in
the complaint that her earnings belong to her rather than to her husband,
(Uransky v. Dry Dock, FE. B. & B. R. R. Co, 18 NM. Y., 304.)

(1522) When the wages which a married woman is earning at the time of
an accident are paid to her by her husband, her loss of them through her
injury does not constitute a part of her damages. (Slaechinska v. How.
Mission, 130 NM. Y., 497.)

1523) As to fluctuating earnings. (k%rgottv. The Mayor, 96 N. Y., 264.
523 g gs & yor, 9 » 264.)
(4) Professional Earnings.

(1524) The loss incurred by a professional man in his practice is a proper
item of damage. (Metcalfv. Baker, 57 N. Y., 662.)

(5) Of Profits.
(1525) As to profits. (Masterson v. Vill. of Mt. Vern., 58 N. Y., 391.)

(Znterest.)

(1526) Interest on the amount spent in repairing an injured article is a
proper item of damage. (Whitehall Tr. Co.v. N. F. Steamboat Co., 51 N,
(1527) Interest on the amount of the value of property diminished by neg.

ligence may be allowed by the jury. (Wilson v. City of Troy, 135 N. Y., 96.)
As to interest in death cases, see Death Act, infra.

® (Exposure.)

(1528) The enhancement of the damages through exposure to bad weather
is, where such exposure is one of the direct consequences, a proper item
for compensation. (Zhrgottv. The Mayor, 96 N. Y., 264.)

Invalids.

(1529) When the injured party is an invalid, the negligent party mus(
answer for all the consequences, without regard to the fact that they have
been aggravated by an imperfect bodily condition, (Zice v. Munn 04 XM,
Y., 621.) ( ;
Damacss. ] CasEs CopIFIzD. 671

Prospective Damages.
(To the Injured Person.)

(1530) Damages cannot be awarded for future bodily pain which the
injured person is only likely to suffer. (Curtis v. Roch. & Syr. R. R. Co., 18
NW. Y., 534-)

(1531) Damages may be awarded for future bodily pain and suffering when.
it is reasonably certain that they will necessarily result. (/d.)

(1532) In the absence of evidence as to the earning capacity ofan injured
person, future pecuniary loss cannot be considered by the jury as an item
of damage. (Staalv. Grand St, & Newt. R. R. Co., 107 N. Y., 625.)

(1533) Where it is reasonably certain that medical attention to an injured
person will be needed in the future, the expense thereof for the future as
wellas the past, may be considered by the jury without any evidence of
the value thereof. (/eeney v. Long Island Rk. R. Co., 116 NV. Y., 375.)

(1534) Where the condition of the plaintiff at the time of the trial is such
that the jury can infer that he has not fully recovered, they can award
prospective damages. (Kanev. NV. Y., N. H. & H.R. RB. Co., 132 N. V., 160.)

See also, Earnings, Professional Earnings, and Profits, supra; also, Chap.
VII, Evid., sud. xom., Opin. of Experts.

(Zo Husbands.)

(1535) Damages sustained by a husband through loss of services of his
wife consequent upon her death are not part of the damages to the next of
kin contemplated by the Death Act. (Dickins v. N. Y. Cent. Rk. R. Co., 23
N. Y., 158.)

(1536) A husband is entitled to recover damages for future as wellas past
loss of services of his wife. (Filer v. N. Y. Cent. R. R. Co., 49 N. Y., 42.)

(1537) A husband can not maintain an action for damages for loss of services
of his wife resulting from her death. (Green v, Hud. Riv. R. R. Co., 2 Abb.
C. A. D., 277.)

See Chap. X, sud. nom., Death Act.

(To Parents.)

(1538) A parent suing for loss of services through negligence can recover
prospective damages. (Drew v. Sixth Ave. R. R. Co., 26 N. Y., 49.)

(1539) Inan action by a parent for loss of services of achild injured through
another’s negligence, the estimated expense of asurgical operation believed
by an expert to be necessary is not admissible as an item of damage.
(Cuming v. Bhiyn City R. R. Co., 109 NV. Y., 95.)

(1540) A parent may recover for prospective as well as past loss of services
ofachild. (Dollard v. Roberts, 130 N. Y., 269.)

(1541) Inestimating the compensation to be made under the Death Act to
.parents as the next of kin of a child, a jury is not bound to confine its con-
sideration to thechild’s minority. (Birkett v. Knickerbocker Ice Co., 110 M.

Y., 504.)
672 Cases CopIFIED, [Cuap, VI.

 

(1542) Where parent as administrator is suing for death of child.
(McGovern vu. N. Y. C, Ge. R. R, Co , 67 N. Y., 617, infra, sub, nom., Death

Act.) s
(To Children.)

(1543) Loss of maternal nurture and education is a pecuniary loss to
children. (Ziley v. Hud. Riv. R. R. Co., 24 MN. Y., 471.)

(1544) In considering the damages sustained by next of kin, regard must
be paid to the duties owing to them by the deceased, and the likelihood that
those duties would have continued through their lives to be properly
performed, but fordeath. (/d@., 29 MV. Y., 252.)

Special Acts. (tpivontice 2)

(1545) Damages not exceeding $1,000, and not less than $100, may be re-
covered by parent or guardian of an apprentice for his use, againsta master
who has failed to teach him the mysteries of his art or craft. (Laws of 1871,
chap. 934, § 5)

st (Law of Road.)

(1546) A person who does not obey the law of the road to turn to the right
must forfeit five dollars to the personinjured. (The Highway Law, see note
to § 159.)

(Civil Damage Act.)

(1547) Under the Civil Damage Act, a recovery may be had ‘‘ for all dam-
ages sustained and for exemplary damages.” (Laws of 1873, chap. 646, § 1;
see chap. X, Miscel. Subj , sub, nom,, Civil Dam. Act.)

(1548) Damages resulting from injury to a horse by reason of his being
overdriven by an intoxicated person are recoverable under the Civil Damage
Act. (Bertholf v. O' Reilly, 74 N. Y., 509.)

(1549) Under the Civil Damage Act, diminution of one’s income, or loss
of property, does not constitute an injury to means of. support, if sufficient
is left for support. (Volans v. Owen, 74 N. Y., 526.)

(1550) The death of an intoxicated man as the result of his intoxication is
an injury to the means of support of his wife where she is dependent on
him for support. (dAfead v. Stratton, 87 N. V., 493.)

See all the cases under this act cited in Part III, sub xom., Intoxication.

e (Death Act—Our Own.)

(1551) At present the award for damages for negligently causing death is
limited to $5,000. (Code of Civ. Pro., § 1904, Orig, Death Act, Laws of 1847,
chap. 450.) After Jan. 1st, 1895, unlimited, Const. of 1895.

(1552) To the amount awarded must be added interest from the time of the
death. (Same § of Code, Orig, Act, Laws of 1870, chap. 78.)

(1553) Damages sustained by a husband through loss of services of his
wife consequent upon her death are not part of the damages to the next of

kin contemplated by the Death Act. (Dickins v. NV. V. Cent. R. R. Co., 23
NV. Y., 158.)
Damacts, | Cases Coprriep. 673

 

(1554) To entitle legal representatives to recover under the ‘‘ Death Act,”
it is not indispensable that the deceased should leave him surviving both a
widow and next of kin. (McMahon v. The Mayor, 33 NV. Y., 642.)

(1555) Damages-resulting to next of kin from a death are to be awarded by
the jury upon a consideration of the age and sex of the deceased, the cir-
cumstances and condition of life of the next of kin and such other facts
existing at the time of the death or trialas are material. (/h/v. q2d St. &
Gr. St. F. R. R. Co., 47 N. Y., 317.)

(1556) When the administrator. of a minor is the person who would be
entitled to the minor’s services until majority, he may, if he so elects,
recover damages for loss of service as part of the pecuniary loss to the next
of kin—on the assumption that Ford v. Monroe, 20 Wend., 210, was correctly
decided. (MeGovernuv. N. Y.C.& HH. R. R. R. Co., 67 N. V., 417.)

(1557) Where a person for whose benefit an action may be maintained under
the Death Act, is legally liable to pay for the funeral expenses of the person
killed, the aount is recoverable in such action. (Murphy v. N. Y. C. &
H.R. R. R. Co., 88 N. Y., 445.)

(1558) In an action under the Death Act, a charge tothe jury that a verdict
for the plaintiff must be for the pecuniary injury, the amount of which
should be, in their good judgment, subject to the limit placed by the statute,
is noterroneous. (Liherington v. Pros. P. & C.f. R. R. Co., 88 NV. Y., 641.)

(1559) Upon entering judgment ona verdict for a negligent killing interest
must, under the Death Act, be added to the verdict and inserted in the judg-
ment, even though the jury included interest as an item of damage in their
verdict. (Manning v. Port Henry Ir. Works, 91 N. Y., 665.)

(Other Acts.)

(1560) The laws of another state limiting the amount of damages recover-
able against railroad companies for personal injuries occurring insuch state
do not apply to an action brought in this state by a passenger for an injury
so occurring, where he was travelling on a ticket bought in this state for
carriage between two points in this state and the passing through such other
state was an incident of such carriage. (Dyke v. Erie Railway Co.. 45 N. Y.,
113, Floyd v. same, Id., Lyons v. same, 57 N. ¥., 489.)

(1561) Where under a statute of another state, which gives to a widow the
right to recover for negligently causing her husband’s death in that state
damages unlimited in amount, a widow brings such an action in this state,
her recovery is limited to the amount recoverable under the Death Act of
this state. (Wooden v. Western N. Y. & Penn. R, R. Co., 126 N, Y., 10.)

Limitation of Damages by Contract.

(1562) Amount of recoverable damages to property may be limited by
contract. (Zimmerv. N. Y.C. & H.R. R. R. Co., 137 NV. Y., 460.)
See also Chap. I, Tit. IV, Art II, Carriers, sub xom., Of Goods.
674 CasEs COopiFIED. [Cuap. VI.

 

Exemplary Damages.

(1563) Where negligenceis of sucha character as to amount to misconduct
or recklessness, a jury may give exemplary damages. (Millard v. Brown, 35
NV. Y., 297.)

(1564) Corporations are not exempt from the law as to punitive damages,
{Caldwell v. N. F Steamboat Co., 47 N. Y., 282.)

(1565) If a passenger is ejected improperly, but in good faith, itis not a
case for exemplary damages. (Hamilton v. Third Ave. RR. Co., 53 WV. V., 25.)

(1566) An award of exemplary damages is not to depend on the jury’s view
of a defendant’s conduct, but upon the fact whether that conduct has been
of such nature as to make such an award permissible. (Cleghorn v. N. Y.
C.& Hk. R. R. Co., 56 N. Y., 44.)

(1567) A masteris not liable for exemplary damages for an actof his servant
which would not subject the servant to such damages if the action were
against him. (Zownsendv. NV. V. C.& H. RR. Co., 56 N. Y., 295-)

(1568) If the seller of liquor, which causes intoxication, has no license, the
injured party may recover exemplary damages. (Mew v, McKechnie, 95 N.
Y., 632.)

(1569) Exemplary damages are not recoverable.under the Civil Damage
Act except upon proof of aggravating circumstances. (eid v. Terw*lliger,
116 WV. Y., 530-)

(1570) The neglect of a railroad company to institute condemnation pro-
ceedings before taking possession of a person’s property, and before the
trial of an action brought by such person to recover damages therefor, does
not entitle the jury upon such trial to give exemplary damages. (/owers v.
Manhattan R. Co., 120 N. Y., 178.)

Mitigation of Damages.

: (1571) While the damages for neglect to present a draft for acceptance are
prima facie its amount, they may be mitigated by showing that the draft
would not have been accepted if duly presented, and that the drawer was
insolvent when it was drawn. (Allen v. Suydam, 20 Wend., 32.)

(1572) In an action against a sheriff to recover damages for his neglect to
return an execution on or before its return day, evidence that the judgment
is still collectible is not admissible in mitigation of damages. (Ledyard v.
Fones, 7 N. Y., 550.)

(1573) The chance that her children as next of kin may receive on the death
and intestacy of their father, the husband, an estate increased by her earn-
ings can not be considered in estimating the pecuniary loss sustained by
next of kin of a married woman. (TZidleyv, Aud. Riv. R. R. Co.,24.N. V., 471.)

(1574) The failure of an injured person to take a step, which. if taken, would
have reduced the damages, but which he in good faith supposed it was too
late to take, can not be taken as mitigation of damages. (Leonardv. N. Y.,
A. & BE. M. Tel. Co., 41 M. Y., 544.)
Damacss. ] Cases CODIFIED. 675

 

(1575) As to retarding recovery by carelessness, or improper medical
treatment. (Lyons v. Erie R. R. Co., 57 N. Y., 489, Sauter v. N. V. Cent. R.
R. Co., 66 M. V., 50.)

(1576) In an action against a sheriff for neglect to return an execution
within sixty days, itis a mitigation of damages that he had, during its life,
received an attachment against the execution creditor. (Wehle v. Connor,
69 W. ¥., 546.)

(1577) The amount of insurance on property negligently burned is not
admissible in mitigation of damages in an action against the person whose
negligence caused the injury. (Briggs v. VW. Y.C.& H.R. R. R. Co., 72
4M. Y., 26.)

(1578) The fact that the deceased had his life insured is not admissible in
mitigation of damages. (Kellogg uv. N. Y.C.& H.R. R.R. Co.,79 N. Y., 72.)

(1579) Neglect of a patient to obey a physician’s instructions and neg-
ligence of a subsequent physician mitigate the damages in an action against
the former physician. (Carpenter v. Blake, 75 N. Y., 12.)

(1580) The fact that the deceased has left property, which goesto the next
of kin, cannot be considered in mitigation of damages. (7erry v. Fewett,
78. Y., 338.)

(1581) The fact that the damages resulting from defendant’s negligence
are increased by reason of the ill heaith of the injured person, affords no
reason why the defendant should not make good the whole damage. (TZice
v. Munn, 94 N. Y., 621.)

(1582) The fact that an injured person’s support after an accident was
paid, does not go in mitigation of the damages sustained by his next of kin
in case he dies. (Murray v. Usher, 117 N. Y.. 542.)

(1583) An injured person is not bound to get the best medical advice.
(Albertiv. NV. Y., Lake Erie & W. R. R. Co., 118 N. Y., 77.)

See Chap. VII, Evid., sud. nom., Burd. of Proof. (Slater v. Mersereau, 64
NM. Y., 138.)

Nominal,

(1584) The infancy of a person negligently killed does not require that the
damages awarded under the Death Actshall only be nominal, (Quin v,
Moore, 15 N. V., 432. Birkett v. Knick. Ice Co., 110 NM. Y., 504.)

(1585) Absence of proof of special damage resulting to next of kin from a
death does not require a verdict of nominal damage. (/A/v. 42d St. & Gad.
St. FR. R. Co., 47 NV. Y., 317-)

(1586) Where, in a death case, there is no evidence of actual damage to the
next of kin, itis nevertheless for the jury, not the court, to say whether
only nominal damages shall be awarded. (Dickins v. NM. V.C. R. R. Co., t
Abb. C. A. D., 504.)

(1587) A bank is only liable in nominal damages for negligence in failing to
collect commercial paper, where it appears that any of the parties to it are
liable and are solvent. (First Nat. Bk. v. Fourth Nat. Bk., 77 N. Y., 320.)
676 CasEs CoDIFIED. [Cuar. VI.

 

' (1588) It cannot be said that because the children of a person killed through
another’s negligence, are living away from the home of the deceased and
supporting themselves, they have not sustained pecuniary damage through
his death. (Lockwood v. N. Y., Lake Erie & W. RR. Co,, 98 N. ¥., 523-)

(1589) If a party is entitled to recover nominal damages, it is not error to
refuse to charge that he is not entitled to recover any damages. (Baker v.
Manhattan R. Co., 118 N. Y., 533-)

Miscellaneous.

(1590) Wherea telegram, as incorrectly transmitted, contains directions to
buy stock, and during the time spent in obtaining a correct message, the
stock rises in price, the measure of damages is the amount of such rise.
(Rittenhouse v. Indep. Line of Tel., 44 N. Y., 263.)

See Baldwin v. U. S. Tel. Co., 45 NV. Y., 744.

(1591) Where a factor neglects to sell goods, their value about the time
the order to sell was given isthe measure of damages. (Whelan v. Lynch, 60
NV. Y., 469.)

(1592) Where different persons pollute a stream in a similar way, but
independently of each other and not jointly, each is only liable to respond
for the damages caused by himself. (CAipman v. Palmer, 77 N. Y., 51.)

(1593) A person is not damaged by the failure of a public official to obey the
law, where it is not too late to have such failure rectified. (Olmsted v.
Dennis, 77 N. Y., 378.)

(1594) The measure of damages against a negligent assignee for the benefit
of creditors, where he has failed to bring suits he ought to have brought, is
not necessarily the amount he could have recovered, but the amount of the
actual loss sustained. (Jz re Cornell, 110 NV. Y., 351.),

(1595) Where the damage done to a neighbour’s land by a negligent fire,
resulted in the destruction of his fruit trees, the measure of damages is the
difference in the value of the land before and after the injury, and not the
value of the trees themselves at the time they were burned. (Dwight v.
Elmira, Cort. & U. R. R. Co., 132 N. ¥., 199.)

(1596) The damages which a contractor is answerable for to a neighbour,
who interferes with the bed of a stream under a lawful contract with the
owner of the land, are only such as result from its temporary diversion.
(Covertey, Cranford, 141 N. Y., 521.)

Cross REFERENCES.

See Chap. VII, Evidence, szb mom., Burden of Proof, Opin. of
Experts ; Chap. IX, Pleadings ; Chap. X, Miscel. Subj., sub nom.,
Statutory Causes of Action.
EvIpENcE. ] Cases CopDIFIED. 677

 

CHAPTER VII.

EVIDENCE.

§ 214. In actions to recover damages resulting from negli-
gence, the burden of proof is on the plaintiff to show absence of
contributory negligence on the part of the injured person, as
well as the existence of negligence on the part of the defendant.

§ 215. In actions other than those mentioned in the last
section, the burden is on the defendant to establish that the
negligence of the plaintiff, or other injured person, contributed
to produce the damage in question.

§ 216. The burden of proof never shifts.

§ 217. Therule, ves ipsa loguttur, applies in cases where the
occurrence, on account of which it is claimed that the inference
of negligence arises, is one which does not ordinarily happen
when requisite care has been used.

This section will not be accepted as an accurate generalization of the
cases, without serious question. It is believed, however, that it will be
found, on careful deliberation, to present the principle upon which the
well considered cases must, in the last analysis, be differentiated.

§ 218. Upon the question whether a person was negligent,
no presumption is to be made either way, the question being
entirely one of proof by that party upon whom the burden rests.
_ § 219. Evidence of other occurrences prior to or contempor-
aneous with the one in suit is only admissible when its tendency
is to prove or disprove a negligent quality in the act in
controversy. ;

§ 220. Evidence of subsequent acts of a defendant is inad-
missible to characterize the act in controversy, but may be
admitted if relevant upon the question of the defendant’s respon-
sibility for that act.

§ 221. No person, expert or otherwise, can be allowed to
state his opinion whether his own or another’s act was or was
not negligent.

§ 222. Subject to the rule in the last section, expert evidence
is admissible as to the cause or result of an injury.

§ 223. The exclamations of pain of a person at the time of
receiving an injury, and when under treatment for it by a
physician, are admissible.
i78 CasEs CoDIFIED. {Cuap. VII.

 

§ 224. Neither the statements of an injured person, nor of a
iervant of the defendant, as to how or why an accident
iccurred, even though made a few moments thereafter, are
idmissible as part of the res geséae.

§ 225. An exhibition of a machine or appliance, or of a part
hereof, which has caused an injury, and the exhibition of the
Sart of a person’s body which was injured, may be made to the
ury, but can not be compelled, except pursuant to some statute.

§ 226. Where knowledge by a person of the existence of any
hing is a necessary element of a charge of negligence against
iim, knowledge thereof may be inferred from proof that it has
‘xisted long enough for the person to have become actually
nformed of it, under a proper administration of his affairs.

§ 227. Evidence of the damages, which necessarily or
iaturally flow from a negligent act, is admissible without
pecial averment in the complaint.

§ 228. Special damages can not be proved if they have not
een pleaded. :

COLLECTED FROM THE FOLLOWING DECISIONS,
GROUPED UNDER THESE HEADINGS :

Burden of Proof.
When on Plaintiff.
(1) As to Contrib. Neg.
(2) ** ** Other Matters.
When on Defendant.
Presumptions.
As to Plaintifts.
As to Defendants.
“© Miscel. Facts.
Inferences as to Neg. &c.
As to Contrib. Neg.
From Several Facts.
As to Employment.
EF Notice.
Between Mast. & Serv.
(1) Incomp, Serv.
(2) Machines,
(3) Appliances.
(4) Rules.
Between Mast. & Third Pers,
‘© Carrier & Pass,
«6 ‘© & Shipper.
“ Travell. on Highway.
‘© Neighbours.
Against Owners.
+8 Purveyors, &c.

 

Discrediting a Party.
Conflict of Evid,
As to Signals.
Other Cases,
Interested Evid.
Opinions.
Of Experts:
(1) Who Are.
(2) Physic. as to Cause.
Q@) ‘se « Results.
(4) ‘* Miscell.
(5) Other Experts.
Of Others.
(1) Non-Experts.
(2) Parties or Incrim, Pers.
Matters of Common Exper.
Privileged Communications,
Declarations.
Ot Injured Person.
(1) As to Pain.
(2) ‘* ** Accident.
Of Wife.
** Witness.
‘© Servant.
Written,
Miscell.
Evinence. |

Cases CopIFIEp. 679,

 

Damages.
As to Wages &c.

(4) Happ’ of Other Accid.
(5) Miscell, Acts.

In Death Cases. Fires.

Miscell. Items. Acts of PIff.

Permanence. re Deft:

In Rebuttal. (1) Before Accident.

“« Mitigation. (2) After Ke

As to Exemplary. Ownership. .

As to Admissibility and Effect Of Pleadings &c. (Writings.)

of Certain Things. Ocular Evid.

Under Pleadings. Parole ‘
Res Inter Alios, In Crossing Cases.
(1) Judg. Rolls. Between Neighbours.

 

(2) Custom. as Carriers & P. or Serv.
(3) Freedom fr. Accid. se Mast. & Serv.
Burden of Proof.

(When on Plaintiff.)
(1) As to Freedom from Cont. Neg.

(1597) The burden is not on a plaintiff to show absence of contributory
negligence on his part. (Keegan v. Western R. R. Co., 8 N. Y., 15.)

(1598) To maintain such an action, it belongs to the plaintiff to prove
affirmatively the absence of negligence on the injured person’s part contri-
buting proximately to the injury. (Button v, Hudson Riv, KR. R. Co., 18 N.
Y,, 248 )
~ (1599) The proposition, that if the evidence is equally consistent with the
absence, as with the existence, of negligence in defendant, the plaintiff can
not recover, is simply the same as the proposition that the burden of proof
is on plaintiff. (Moody v. Osgood, 54 N. Y., 488.)

(1600) In an action to recover damages for negligence the burden of proof
never shifts from the plaintiff. (Azinemann v. Heard, 62 NV. Y., 448.)

(1601) Inan action to recover damages resulting from a nuisance, it is not
necessary for a plaintiff to prove his freedom from contributory negliger.ce.
(Clifford v. Dam, 81 N. Y., 52.)

(1602) It is not enough to prove facts from which either the conclusion of _
negligence or the absence of negligence may with equal fairness be drawn,
but the burden is upon the plaintiff to satisfy the jury that there was no
contributory negligence on the part of the injured person. (Hart v. Hudson
hiv. Br. Co., 84M. V., 56.)

(1603) A plaintiff in a negligence suit is not bound to make out his case
beyond all reasonable doubt, (Seyboltv. N. Y., Lake E. & W. R. R. Co.,
95 NV. Y., 562.)

(1604) A plaintiff must prove something which warrants the inference of
negligence on the defendant's part, and not leave his case upon facts just as
consistent with care and prudence as with the opposite. (ayes v, Forty,
second St. &c. R. R. Co., 97 M. Y., 259.)

‘
680 CasEs CopIFIED. [Cuap, VII.

(1605) Inanaction to recover damages resulting from slipping on ice ona
sidewalk plaintiff must give some evidence of care in passing over it.
(Weston v. City of Troy, 139 N. Y., 281.)

(2) As to Other Matters.

(1606) Where goods are stolen from a'vessel, the burden of proof is not on
the insured, in an action on a policy insuring against loss by theft and
barratry, to show that the masters and mariners were not neglectful of
their duties. (Am. Ins. Co. v. Bryan, 26 Wend, 563.)

(1607) The exemption of a carrier in a bill of lading from loss by fire does
not apply where the fire occurs through its negligence, but in such a case
the burden of proof is on the shipper to show negligence. (Zam. v. Cam.
& Amb. R, R. Co., 46 N. Y., 271.)

(1608) In an action against a street-car company to recover damages resulting
to a passer-by from an unsafe condition of the street between the rails of its
track, the burden of proof is not upon the plaintiffto show that the defendant
had notice of its condition, either actual or constructive. (Worster v. 42d &
Gr. St. F. R. R. Co., 50 N. Y., 203.)

(1609) The burden is not on a vessel, which shows a light, to prove that
the light conformed to the requirements of law. (Harris v. Uebelhoer, 75
XN. Y., 169.)

(1610) Where the presumption of negligence on the part of a warehouse-
man, arising from demand and neglect to deliver, is met by evidence of
theft, the burden is on the plaintiff to show that the warehouseman was
negligent in guarding the things st@len. (Claflin v. Meyer, 75 N. Y., 260.)

(1611) Where the issue is whether an animal has been injured through
defendant’s negligence or its own viciousness, the burden is on the plaintiff
to show that it was not vicious. (Hale v. Smith, 78 N. Y., 480.)

(1612) If a person crossing a track could have seen an approaching train
in time to avoid it, the burden is on the plaintiff to show that such person
did look in that direction. (Becht v. Corbin, 92 N. Y., 658.)

(1613) The burden is on the plaintiff to show thata child is nom sui juris,
when its acts are such as would be negligent in persons of mature years.
(Stone v. Dry Dock, E. B. & B. R. R. Co., 15 WM. ¥., 104.)

(1614) A person, who claims that he was injured by the fall of an article,
is not bound to produce it at the trial. (Volkmar v. Manhattan R. Co., 134
NM. Y., 418.)

(16g5) Where a person seeks to recover damages from an alleged negligent
escape of sparks from an engine having an old kind of spark-arrester, on
the ground that a new kind of spark-arrester has come into general use, he
must show that the new kind is less liable to cause fires than the old.
(Babcock v. Fitchburg R. R. Co., 140 N. Y., 308.)

(When on Deft.)

(1616) Acommon carrier can only rebut the presumption that an injury to
its passenger from an accident to its conveyance was due to its negligence,
by showing that the accident occurred from circumstances against which
human prudence and foresight could not guard. (Bowenv. W. Y. Cent. R.
R. Co., 18 N. Y., 408.)
EVIDENCE. | CasEs CoDIFIED. 68}

 

(1617) The fact that a person meets his death on another’s premises does
not cast upon the latter the burden of satisfactorily explaining it. (Curran
wv. Warren Chem. & Mfg. Co., 36 N. Y., 153.)

(1618) In an action against a searcher for liens against realestate to recover
damages for failure to return a lien, if the searcher desires to avail himself
-of the fact that the plaintiff is protected against loss by covenants in his
deed, the burden of proof is on him to show that a remedy exists, which is
available to plaintiff and to which he should resort. (Morangev. Mix, 44 NV.

Y., 315.)

(1619) Where a warehouseman relies upon burglary as an answer to the
inference of negligence arising from the non-delivery of goods stored with
him, he must make a case fairly warranting the inference that the goods
were lostin that way. (Schwerin v. McKie, 51 N. Y., 180.)

(1620) Where a defendantclaimsin mitigation of damages that an increase
of them was due to the negligence of a third person for which he is not
responsible, the burden is on him to show how much of the damage was
‘produced by his negligence, and how much by that of such third person,
and if he fails to do so he is liable for the whole. (S/ater v. Mersereau, 64
NV. Y., 138.)

(1621) Under the Innkeepers’ Act, (chap. 658, Laws of 1866) the burden of
proof is on the innkeeper to show that a fire was of incendiary origin and
that he was not negligent. (Faucett v. Nicholls, 64 N. Y., 377.)

See next Subdiv., Presumptions.

Presumptions. (As to Plaintiffs.

(1622) In the absence of proof of any circumstances importing negligence
.on the injured person’s part, such negligence can not be presumed. (Button
v. Hud. Riv. R. R, Co,, 18 N. Y., 248.)

(1623) No presumption exists, in the absence of proof, that an injured
‘person was exercising due care at the time of the injury. (Reynolds uv. N.
V.C.@H.R.R. R. Co., 58 NM. Y., 248.)

(1624) In an action to recover damages occurring Binet negligence it is
not to be presumed that plaintiff was free from fault. (Wasmer v. N. Y.
Cent. R. R. Co., 44 N. Y., 465.)

(1625) In a death case, in the absence of direct evidence of negligence on
‘the part of the deceased, it may be presumed in his favor that he was
desirous of preserving himself frominjury. (Morrisonv. N. VY. C. & H.
RR. Co., 63 N. ¥., 643.)

(1626) There is no presumption of law that a person about to cross a rail-
road track in a vehicle driven by another fails to look for a train. (Massoth
vu. Del. & Hud. C. Co., 64 N. Y., 524.)

(1627) An infant twelve years. old is to be presumed to be sai juris.
(Tucker v. N.Y. C. & H.R. RR. Co., 124 N. Y., 308.)

(1628) When a person is riding on an elevator, and receives an injury
because some portion of his body gets beyond the elevator platform, and
‘there is no evidence to show how or why it got beyond, it can not be
682 Cases CoprFiED. [Cuar. VII.

 

presumed that he had not omitted the precautions which a prudent man
‘would take in the presence of a known danger. (Riordan v. Ocean S. S. Co.
of S., 124 NM. ¥., 655.)

(1629) Where an injury occurs to a passer-by from a defect in a highway,
the presumption may be made that he was proceeding carefully. (Chisholm
uv. State, 141 VV. Y., 246.)

(As to Defts.)

(1630) When an accident happens to a public conveyance, the presumption
in favor of an injured passenger is that itis due to the negligence of the
carrier. (Bowen v, NV. Y. Cent. R. R. Co., 18 NV. ¥., 408.)

(1631) The mere fact thatan accident occurs to a passenger is not of itself
presumptive evidence of negligence of the carrier. (Curtis v. Roch, & Syr.
R. RK. Co., 18 M. Y., 534.)

(1632) Where it appears that an accident occurs from any disarrangement
or displacement of the track or car of a railroad company the presumption
of negligence at once arises, (Zd.)

(1633) When the shaft of a vehicle pierces through the front panel of a
rapidly-driven street-car, the presumption is that the car-driver was negli-
gentin the management of the car. (Ail/v. Ninth Ave. R. R. Co., 1og WV,
Y., 239.)

(1634) The mere fact that property in possession of a bailee was destroyed
by fire, does not warrant a presumption that he was negligent in its care.
(Stewart uv. Stone, 127 N. Y., 500.)

(As lo Miscell. Facts.)

(1635) Itisa warrantable presumption that personal property is being used
on behalf ofits owner. (Morris v. Kohler, 41 N. Y., 42.)

(1636) A sender of a telegram ona telegraph blank may be presumed to.
know of the contents of the printed portion. (Breese uv. U. S. Tel, Co., 48 N.
Y., 132.) :

(1637) A presumption that the fall of a building was due to the negligence
of its owner arises from the mere fact of its fall. (Mullen v. St. Fohn, 57
M. ¥., 567.)

re Evidence that a person drank beer sold by defendant,{without proof
as to what kind of beer it was, is not sufficient to warranta finding that an
intoxication which followed resulted from that sale. (Blatz v. Rohrbach,
116 WV. Y., 450.) :

(1639) In the absence of evidence that a person was eight feet high, an
appellate court cannot assume that he was, even though the verdict could
only have been given on that theory and the jury saw the person. (Hunter
uM. Y., Og. & WR. R. Co, 116M. Y,, 615.)

(1640) That an appliance has become worn is not sufficient to raise a
presumption that it is not fit for its purpose. (Smithv. N. ¥.C.& AR. R.
R. Co., 118 N. Y., 645.)
EvIpENCcE. | Cases CoDIFIED. 683

(1641) It is a reasonable presumption that the stair carpet ina tenement
house is in thé same condition in the morning that it was the evening
before. (Peil vu, Reinhart, 127 N. Y., 381.)

And see next subdivision, Inferences.

Inferences as to Negligence, and Matters held
to be Evidence thereof.
(As to Freedom from Cont. Neg.)

(1642) Where no evidence is given as to how a person has fallen into an
excavation, of the existence of which he was aware, freedom from con-
tributory negligence cannot be inferred,

Or,

Where a plaintiff gives no evidence from which absence of contributory
negligence can be inferred, he must be nonsuited. (Riceman v. Havemeyer,
34 WV. Y., 647.)

(1643) Where two persons are crossing railroad tracks, the fact that one of
them looked for a train and saw nothing, is not sufficient to warrant the
inference that the other was free from contributory negligence.
(Wiwirowski uv. Lake Shore & M.S. R. Co., 124 N. Y., 420.)

(From Several Facts.)

(1644) Where a dead body is found on a railroad track beneath an insuffi-
ciently-guarded bridge of a highway, and there is no evidence as to how it
got there, other than the fact that the injury causing death was, in the
opinion of the attending physician, such that it might have come from a
fall from the bridge, or from a car, or from a blow, an inference that the
deceased came to his death by a fall from the bridge is not permissible.
(Gardinierv. N. VY. C.& H.R. R. R. Co., 103 NM. V., 674.)

(1645) A defective car in a freight train, its uncoupling from the tender
while in transit, the finding of the dead body of the fireman between the
rails at about the place where the car became uncoupled, are not sufficient
to warrant the inference that a servant came to his death through his
master’s, and without his own, negligence. (Bordenv. Del., L. & W. R.
R. Co., 131 MV. Y., 671.)

(As to Employment.)

(1646) Evidence thata man is working on a vessel owned and managed by
the defendant warrants the inference that he is in the latter’s service.
(Svenson v., Atlantic Mail S. S, Co., 57 N. Y., 108.)

(1647) Employment asa servant upon a job is sufficiently proved by
showing that the servant’s name is on the pay-roll of the job and that he has
received money for work done by him onit. (Manning v. Hogan, 78 N. Y.,

" 615.)
(Of Notice.)

(1648) An inference that a person has received actual notice of the existence
of anything may be inferred from the fact that it has existed long enough
for him to have become aware of it under a proper administration of his
affairs, (Requa v. City of Roch., 45 N. Y., 129, and see other cases cited tm
Chap. X, Misc. Subj., sub. nom., Notice.) ;
@>
wm
~

CasEs CoDIFIED. {Cuap. VII,

 

(Between Master and Servant.)
(1) Incompetent Servants.

(1649) The facts thata regular employee is absent, and his place is supplied
without the master’s knowledge by another employee whose knowledge of
the other’s duties is not so great, are not sufficient to warrant an inference
of negligence in the master in providing an incompetent servant, or in fail-
ing to provide enough servants. (7Zinney v. Bost. & Alb. R. R. Co., 52 NV.
Y., 632.)

(1650) The fact that a telegraph operator was only seventeen years of age
does not by itself warrant an inference of his incompetency. (Sutherland v.
Troy & Bost. R. R. Co., 125 NM. V., 737.)

(2) Machines,

(1651) Improper construction cannot be predicated of a new kind of
a machine because it does not always work as it was designed to do.
(DeVauv. Penn. and N. V.C.& H.R. R. Co., 130 N. Y., 632.)

(1652) Where a machine is started and stopped by pushing a belt off froma
loose pulley on to a tight one, and wice versa, the mere fact that after its
being stopped by sliding the belt on to the loose pulley, it in some way gets
started again by the belt getting back on to the tight one, will not warrant
an inference that there was a defect which caused the start. (Dingley v.
Star Knitting Co., 134 NV. V., 552.)

(3) Appliances.

(1653) The starting of a train while an employee is boarding it, is not, in an
action between master and servant, evidence that the master has been
negligent in providing safe appliances. (Henry v. Staten Is. R. R. Co., 81
N. Y., 373-)

(1854) The mere breaking of an appliance when in use by a servant does
not warrant the inference that it was defective and known by the master to
beso. (Disherv. N.Y. C.& H.R. R. R. Co., 94 N. Y., 622.)

(1655) The mere detachment of one appliance from another, whereby a
servant is injured, is not sufficient to warrant an inference of negligence
against the master in not having them properly attached, where it appears
that the attachment wasin the usual manner, and had been used in safety
for yeuts. (Burke v, Witherbee, 98 N. Y., 562.)

(4) Rules.

(1656) Negligence insending out too quickly a train to follow another train
can not be inferred in the absence of evidence as to how much time elapsed
between their departures. (Booth v. Bost. & Alb. R. R. Co., 67 N. Y., 593.)

(1657) The failure to adopt rules is not evidence of negligence, unless it
appears from the nature of the business, in which the servant is engaged,
that the master in the exercise of reasonable care should have foreseen the

necessity of such precautions. (Morgan v. Hud. Riv. O. & J. Co., 133 NV. Y.,
666.)
EVIDENCE. ] Cases Copiriep. 685

 

(Between Master and Third Person.)

(1658) Reckless disregard by a servant of his master’s instructions as tothe
way of doing a thing is not sufficient to warrant the inference that the servant
was acting outside the scope of his employment. (Ochsenbein v, Shapley, 85
NM. Y.,; 214.)

(Between Carrier and Passenger.)

(1659) The mere fact that a rail broke does not warrant a finding that a
passenger injured by a carrunning off the track in consequence thereof,
was injured through the carrier’s negligence. (Cole v. NV. Y. Cent. R. R. Co.,
48 WV. Y., 679.)

(1660) The fact that a small child might slip through an opening in a guard
rail of a bridge, is not enough by itself to admit of an imputation of negli-
gence in the bridge owner for maintaining the rail in that condition, where
it is shown that vast numbers of passengers, adults and children, have for
years passed by such guard-railin safety. (Loftus v. Union Ferry Co., 84
WM. ¥., 455.)

(1661) Inference of negligence in the management of a street-car may be
drawn from its driver’s sudden stopping of the horses, and inability to apply
the brake for a necessary stop. (Nolanv. B’klyn City & N. R. P. Co., 87
XM. Y., 63.)

(1662) The mere fact thata passenger is thrown off the platform of acaron
its starting up after a stop, is not sufficient evidence that it was negligently
started. (Hayes v. Forty-second St. &c. R. R. Co., 97 N. V., 259.)

(1663) The failure of a railroad company to provide a safe place for a
passenger to ride on a train, tor which it has sold him a ticket and which
has stopped to take him up, is evidence of negligence. (Werle v. Long sl.
R. R. Co., 98 NV. Y., 650.)

(1664) The fact that the treatment of a person, injured atsea, by a surgeon
on board the ship for an injury not ordinarily requiring amputation has so
resulted that amputation is necessary, is not by itself sufficient evidence of
malpractice. (Laubheim v. De Kon. Ned. Stoomboot My., 107 N. Y., 228.)

(1665) A broken hook on a stanchion at the side of a railroad observation
caris not so obviously dangerous, as that its mere presence is, of itself,
sufficient evidence of negligence in allowing it tobe there. (Kelly v. NM. Y.
& Sea Beach R. R. Co., 109 N. Y., 44.)

(1666) Where a passenger in a railroad car, sitting by an open window, is
struck by something from a passing freight train, anditappears that one of
the cars of the freight train was outof repair ina way that might have caused
the injury, the inference of negligence on the part of the company is
permissible. (Sreenv. N. Y. C. @ H.R. R. R. Co,, 109 NW. Y., 297.)

(1667) The breaking of one of the appliances used to warp aship toa dock
is, as to an injured passenger, sufficient to warrant an inference either of
negligence in its use or of its want of fitness. (Adler v. Ocean S. S. Co. of
S., 118.4. ¥., 199.)

(1668) Negligence cannot be predicated of the management of a train at a
station from the mere fact that it runs over a passenger who has alighted
‘from another train, passed behind it, and on to the track where he is run
over. (Goldbergu.N. Y.C.& H.R. RR. Co., 133. Y., 561.)
686 Cases CopIFiED. [Cuap. VII.

 

(Between Carrier and Shipper.)

(1669) Where goods are carried at owner’srisk, evidence that they were
‘njured in a railroad accident does not warrant an inference that the injury
was due to the carrier’s negligence. (French v. Buff. & Erie Rk. R. Co., 2
41bb. C. A. D., 196.)

(1670) Where at the time a passenger checks trunks, the carrier has notice
hat they do not contain baggage, and charges and receives compensation
or carrying them, a contract to carry them as freight may be inferred.
Sloman v. Great West. R. R. Co., 67 N. Y., 208.)

See also Chap. II, Tit. IV, Art II, Carriers, sud xom., Of Goods.

(Between Travellers on or Users of Highways.)

(1671) Absence of statutory signals ata crossing is evidence of negligence.
O’ Mara v. Hudson Riv. Rk. R. Co., 38 N. Y., 445.)

" (1672) An omission to station a flagman at a crossing, where trains are run
ita greater rate of speed than at other crossings, may be evidence of neg-
igence in running trains at that crossing at such greater rate of speed.
Beisiegelv. N. Y. Cent. R. R. Co., 40 NV. Y., 9.)

(1673) Failure to stop a locomotive, which could have been stopped in time
o prevent an accident, is evidence of negligence. (Schwierv, NV. Y. C. &
7. RR. R. Co., 90 NM. ¥., 558.)

(1674) The escape of a minute cinder from a locomotive, running on an
‘levated track in a street, is not in itself evidence of negligence on the
vartofits owner. (Wiedmerv. N. Y. Elev, R. R. Co., 114 N. Y., 462.)

(1675) No negligence can be imputed toa railroad company where the
leath of a person is solely due to his being run over because of his acci-
lental fall upon its track. (Dorman v. Broadway R. R. Co. of Bhiyn, 117 N.
V., 655.)

(1676) The evidence of a boy of twelve years of age run over by a horse-
ar, that he saw it coming and had time to cross the track in front of it, is
.ot sufficient to warrant the inference that the speed of the car wasincreased
fter he started to cross. (Manahanv, Steinway & H. P. R. R. Co., 125 N.
V., 760.)

(1677) The mere fact that a rein broke in an effort to control a frightened
iorse #s not evidence that it was a defective one. (Phillips uv. N. V. C. &
7... R. R. Co., 127 N. Y., 657.)

(1678) Where a vault under a sidewalk has existed for several years with
he knowledge and acquiescence of the city officials having charge of the
treet, permission to construct it must be conclusively inferred. (Badsage
. Powers, 130 NV. Y., 281.)

(1679) The fall of a portion of the structure of an elevated road on to the
ighway beneath is sufficient evidence of negligence on its owner’s part in
\ot maintaining the structure in a safe state. (Volkmar v. Manhattan R. Co.,
34 MW. Y., 418.)
EvIDENCE. | CasEs CopIFIED. 687

 

(Between Neighbours.)

(1680) Evidence that an overflow of water to a lower floor occupied by the-
plaintiff was caused by a derangement of water fixtures.in the part of an
upper floor occupied by defendant is not sufficient to warrant an inference
of negligence by the latter, where his possession is not exclusive of that of
another tenant, and it does not appear that the derangement was due to his
act. (Moore v. Goedel, 34 N. Y., 527.)

(1681) Escape of large sparks continuously from an engine warrants the
inference of negligence in its management or construction. (Bede// v. Long
Isl. R. R. Co., 44 N. Y., 307.)

(1682) The fact that a locomotive was not stopped in time toavoidrunning
over an infant straying on the track, is not sufficient evidence of negligence,
in the absence of anything to show that the engineer ought to have seen the
child sooner than he did, or did not stop assoon as he could after discovering
that it was heedless of the danger. (Chrystal v, Troy & Bost. R, R. Co., 105
N. Y., 164.)

(1683) Isolated instances of the escape of sparks, larger than a spark-
arrester in good order would prevent, are not enough to warrant an infer-
ence that a fire in question was due to the company’s negligence, in the
absence of evidence to connect them with such fire, or of evidence that the
company did not havea proper system of inspection of its spark-arresters or
failed to repair them at its first opportunity. (Flmnv. MVC. & AR. R.
R. Co., 142 MN, Y., 11.)

See Presumptions, Burden of Proof, supra; also Chap. VIL, Causes, sub

nom., Nonsuit.
; (Against Owners.)

(1684) The inference of negligence, which arises against the owner of a
boiler from the mere fact of its explosion, does not arise when the explosion
happens while it is being repaired. (Olive v. Whitney M. Co., 103 NV. Y., 292.)

(1685) Negligence producing an explosion can not beinferred merely from
the fact of the explosion, when it occurs on private property. (Cosulich v.
Standard Oil Co., 122 NV. Y., 118.)

(1686) Evidence that a hydrant on a water-main is found removed and the
water gushing out is not sufficient to warrant the inference that it was neg-
ligently constructed or negligently connected with the main. (Yenney v.City
of Bhklyn, 120 NV. Y., 164.)

(1687) Sctenter of an owner as to viciousness of his dog may be inferred
from the fact that he bought and used him as a watch-dug and kept him
chained and muzzled. (Hahnke v. Friederich, 140 N. Y., 224.)

(Against Purveyors or Other Carriers.)

(1688) The failure of a telegraph company to transmit a message as
received is evidence of negligence. (Rittenhouse v. Indep. Line of Tel., 44
NV. Y., 263.) :

(1689) The mere fact that an appliance for the furnishing of sleamin a
building gave way, does not warrant an inference of negligence in providing
a defective appliance. (Reiss uv. NV. Y. Steam Co., 128 N. Y., 103.)

See the heading, As to Admissibility, &c., iz/fra.
88 Cases CopiFIED. (Cuap. VIL.

 

Jiscrediting a Party.

(1690) A jury is not bound to discredit a party’s evidence because he is
ontradicted in one or more important particulars about which he cannot be -
eemed simply mistaken. (Wilkins v. Earle, 44 N. Y., 172.)

(1691) The fact that an injured person in locating the spot where the
ccident occurred makessome inconsistent statements, one of which if true
hows the defendant is not liable, does not require a nonsuit. (4éison v.
ill. of Middletown, 101 N. Y., 667.)

(1692) It is immaterial that a plaintiff locates his accident at the wrong
pot if he does so honestly, and it was due to defendant’s negligence,
barber v. Paulson, 116 NV, Y., 660.)

Jonflict of Evidence.
(As to Signals at Crossings.)

(1693) Two witnesses for plaintiff did not hear, six for defendant did hear,
rind blowing from plaintiff towards train, sufficient conflict. (Roach v.
lushing & N.S. R. R. Co., 58 N. ¥., 620.)

(1694) As against disinterested evidence that a bell was rung ata crossing,
vidence that none was heard does not createa conflict of evidence justifying
submission to the jury of the question whether it was rung. (Cudhane v,
7VC& ARR. BR. Co., 60M. Y., 133, MeKeeverv. N.Y. C. & AR,
2». R. Co., 88 WV. ¥., 667.) :

(1695) A jury is under no duty to find that signals were given at a crossing,
ecause affirmative evidence that they were given is only opposed by
vidence of witnesses that they did not hear them. (Weberv, N.Y. C. &
7. RR. R. Co., 67 NV. Y., 587.)

(1696) The testimony of passengers ona train that they did not hear any
ignals on approaching a crossing is admissible. (Greany v. Long Js. R. RB.
‘0., 101 M. ¥., 419.)

(Other Cases.)

(1697) Where the defendant's explanation of an accident which, if true,
xculpates it from the charge of negligence, is not improbable, and is proved
y a disinterested witness, and is uncontradicted, it is the duty uf the court
» direct a verdict for the defendant. (Unger v. Forty-second St. &c. R. R.
v., 51M. ¥., 497.)

(1698) The fact that a medical expert testified that he has never knowna
all pr8duce a certain disease, does not make it error tosubmit to a jury the
uestion whether a fall has produced it, other experts testifying that it
right, and the injured person having the symptoms after and not before
he accident. (Keane v. Vill. of Waterford, 130 N. Y., 188.)

interested Evidence.

(1699) As to admissibility of evidence of aldermen in suit against a city
nder § 399 of the old Code. (Packv. The Mayor, 3 N. ¥., 489.)

(1700) Under the Code, as it existed in 1857, next of kin were competent as
vitnesses in an action under the Death Act. (Quinn v. Moore, 15 N. Y., 432.)
EvmvEnck. | CasEs CopImFIED. 689

 

(1701) The testimony of a druggist’s clerk, that his employer gave to a
purchaser verbal warning that a medicine was poisonous, is not disin-
terested. (Wohlfahrtv. Beckert, 92 N. Y., 490.)

(1702) The evidence of an employee is not sufficiently disinterested to
permit the court to take a case from the jury, when it rests only on his
testimony. (Volkmar v. Manhattan R. Co., 134 N. Y., 418.)

Opinions. (or Bape)

(1) Who are,

(1703) A newspaper reporter, however expert his editor may think him to
be in assigning the causes of railroad accidents, must not seriously expect
to be accepted as such by the courts. (foytv. L. 1. Rk. R. Co., 57 WN. Y., 678.)

(1704) The fact that a physician has retired from active practice does not
render him incompetent as an expert. (Roberts v. Fohnson, 58 N. Y., 613.)

(2) Of Physicians, as to cause.

(1705) Opinions of physicians as to the cause of symptoms they observe in
an injured person are admissible. (Matteson v. N. Y. Cent. R. R. Co., 35. N.
Y., 487.)

(1706) Expert evidence that any increase of pain at child-birth was due
to a malposition of the child, which might have been a result of the acci-
dent, is admissible. (De Forest v. City of Utica, 69 N. Y., 614.)

(1707) A physician who has examined an injured person may be asked
his opinion as to the cause of the injury. (Zurner v. City of Newburgh,
109 MV. ¥., 301.)

(1708) A physician who has attended an injured person, may state his
opinion that an abscess, which formed some three months after, was a
result of the injury. (Stouter v. Manhattan R. Co., 127 N. Y., 661.)

(1709) In an action for malpractice, it is not competent to ask an expert
whether he could trace any of the bad results which followed, to an
omission of a particular kind of treatment. (Link v, Sheldon, 136 NM. Y., 1.)

(3) Of Physicians, as to Results.

(1710) Expert evidence that an injury is permanent is admissible. (uel
uw. N.Y. Cent. R. R. Co., 31M. Y., 314.)

(1711) Opinions “of physicians as to the probable duration of the effects
of an injury are admissible. (Matteson v. N. VY. Cent. R. R. Co., 35 NV. Y.,
487.)

(1712) It is not as to what may, but what with reasonable certainty will
result from an injury, that evidence by an expert is admissible. (Strohm v.
N. Y., Lake E. & W. R.R.Co., 96 N. Y., 305; Tozerv.N YC. & ARR,
R. Co., 105 NV. Y., 617.)

(1713) A physician who has examined an injured person may be asked
his opinion as to the pe.manence of the injury. (Zurner v. City of New~-
burgh, 109 N. Y., 301.)
390 Cases CODIFIED. (Cuapr. VII.

 

(1714) The opinion of a medical expert as to the probabilities of the
-ecovery of an injured person is admissible. (Griswold v. N.Y. C.& #.
RRR, 115 M. Y., 61.)

(1715) The opinion of a medical expert that certain specified consequences
will follow from an injury is admissible, (d¢cClain v. Bhlyn City R. R.
Co., 116 WM. Y., 459.)

(1716) It is competent to ask a medical®expert what is the natural and
ordinary result of aninjury. (Alberti v. N. Y., Lake EL & WR, R. Co.,
117 WV. Y., 77.) ;

(4) Of Physicians—Miscell.

(1717) In an action for malpractice, it is permissible to ask the incrimin-
ated physician whether he used the best ability and skill he possessed. (Is
this opinion or fact?) (Daylev N. Y. Lye & Ear Inf., 80 N. ¥., 631.)

(1718) A physician may be asked whether after amputation patients ever
experience pain, so to speak, in the amputated limb. (//ckenbotiom v. Del.,
L.& WR. R. Co., 122 N. Y., 91.)

(5) Of Other Experts.

(1719) Expert evidence that other explosions of fireworks were caused by
spontaneous combustion is not relevant upon the question whether an
explosion in suit was caused by spontaneous combustion, (Fidlo uv. Foues,
2 Abb. C. A. D., 121.)

(1720) Expert evidence that a certain kind of fireworks called by the same
name as those of defendant’s are liable to spontaneous combustion is not
relevant to prove that those of defendant’s exploded from that cause, in
the absence of evidence that both were composed of the same material.
(Zd.)

(1721) In an action to recover damages for overflowing a neighbour’s land,
it is competent to ask an expert how much a given field could yield per
acre. (Phillips v. Terry, 3 Abb. C. A, D., 607, S. C. 3 Keyes, 313.)

(1722) Also competent, to ask plaintiff how long the water was in going
oft before the obstruction was built. (/@.)

(1723) Also, to ask surveyor how much more land would be overflowed at
a given height of water. (J/d.)

(1724) Evidence that locomotives can be constructed so as not to scatter
coalsbf fire, and that if they do, they are out of order, followed by
evidence that coals are scattered on a track, is admissible to show improper
construction or management of them. (field vu. MV. Y. Cent. R. R. Co., 32
M. Y., 3393; O'Neill. N. V., 0. & W. R. R. Co., 115 NV. ¥., 579.)

(1725) Upon the issue of seaworthiness of a boat, expert evidence that
she was unfitted and unsafe for the service in which she was engaged is
admissible. (Baird v. Daly, 68 N. Y., 547.)

(1726) An expert cannot be allowed to say whether in his opinion the
injured party omitted to do anything which he r.ght have done, to avoid
the injury. (Carpenter v. Eastern Transp. Co., 71 N. ¥., 574.)
EVIDENCE. | Cases CopIFIED. 691

 

(1727) Upon an issue whether a drawbridge was properly guarded for the

_ protection of passengers when the draw was opened, it is admissible to

prove by an expert what is customary on drawbridges in that respect.
(Hart v. Hudson Riv. Bridge Co., 84 N. Y., 56.)

(1728) It is not admissible to ask an expert whether a particular kind of
precaution against accidents is a proper one. (/u.)

(1729) Whether goods on deck were properly covered so as to protect
-them from rain is not a matter for expert evidence. (Schwinger v.
Raymond, 105 N. Y., 648.)

- (730) Upon an issue whether the water of a stream has been diverted

by means of driven wells several hundred feet from it, it is not admis-
sible to ask an expert his opinion as to whether it was possible for the
wells to take in water from the stream. (Van Wycklen v. City of Brooklyn,
118 WV. Y., 424.)

(1731) When a bridge has been changed, an expert can not be asked
whether a load of a particular weight was an excessive one for the bridge
as originally constructed. (McDonald v. The State, 127 N. Y., 18.)

(1732) Where an issue is whether there was a sufficient inspection, it is
inadmissible to allow an expert to say there was not. (Schneider v. Second
Ave. R. Rk. Co., 133 NV. Y., 583.)

(1733) Upon an issue whether an appliance furnished by a master for his
servants’ use was suitable and safe for the purpose, the opinion of an
expert as to the safety and fitness of appliances of that kind is not
admissible. (Harley v. Buffalo Car Mfg. Co., 142 N. Y., 31.)

(Of Others.)
(1) Non-experts.

(1734) In an action to recover damages resulting from flooding due to the
negligent construction of a bridge, it is not admissible to ask of a witness
not an expert, how the embankment could have been constructed so as to
protect the neighbouring property. (Brown v. Mohawk & H. R. R. Co, 1
flow. App. Cas., 123.)

(1735) A witness of an accident can not be asked whether in his opinion
anything could have been done toavestit. (Haggerty v. Bhkiyn City & N.
k. R. Co., 61 M. Y., 624.)

(1736) A witness may be asked if he can see any defect ina broken piece
of an appliance in evidence. (King v. M. V.C.& H.R. R. R. Co., 72 N. Y.,
607.)

(1737) Where the contention is whether property was set on fire by sparks
from the defendant’s locomotive or from that of another company which
passed by about the same time, evidence by a person familiar with the two
engines as to which was in the habit of emitting the most sparks is
admissible. (Collins v, N. V.C.& H.R. R. R. Co., 109 WV. Y., 243.)

(1738) It is not admissible to ask a witness whether a person was acting
ina careless manner. (McCarragher v. Rogers, 120 N, Y., §26.)
692 Cases CopIFIED. (Cuap. VII.

 

(2) Parties or Incriminated Persons.

(1739) A person charged with a negligent omission to keep a highway
safe, can not be allowed to testify that he believed he had used all the
means necessary to its safety. (Hover v. Barkhoof, 44 N. Y., 113.)

(1740) A professional man may be a&ked if he used all his skill. (Doyle v.
N.Y. Eye & Ear Inf., 80 N. Y., 631, supra.) .

(1741) A witness can not be asked whether he left a bridge safe for the
ordinary uses of a highway bridge. (McDonald v. State, 127 N. Y., 18.)

(Matters of Common Experience.)

(1742) Evidence by farmers as experts as to the proper time to burn fallow
land is inadmissible. (Ferguson v. Hubbell, 97 N. Y., 507.)

(1743) Evidence by a driver of experience stating the distance within
which under given circumstances, a one-horse vehicle can be stopped, is
competent, but its admission is not to be encouraged. (O'Neil v. Dry Dock,
£. B.& B. R. R. Co., 129 NM. ¥., 125.)

(1744) When an issue of negligence arises upon such an every day ques-
tion of fact as the proper place for a driver to sit on a loaded wagon, im-
properly admitted opinions of witnesses on the point cannot prejudice either
party. (Bryant v. Zown of Randolph, 133 N. ¥., 70.)

Privileged Communications.

(1745) It is inadmissible to ask a plaintiff's physician whether at the time
he treated her for her injury she had venereal disease. (Sloan v. N. Y.
Cent, R. R. Co., 45 NV. Y., 125.)

(1746) When, in an action, the seal of secrecy placed by the law upon the
lips of a physician is once broken by his patient, the patient can not in
that action replace it by a newone. (McKinney v. Grand St., @c., R. R.
Co., 104 NM. Y., 352.)

(1747) The calling by a patient of his physician as a witness on his behalf
is a waiver of his privilege under §§ 833 and 834 of the Code. (Alberti v.
XN. Y., Lake Erie WR. R. Co, 118 N. ¥., 77.)

Declarations.
e (Of Injured Person.)

(1) As to Pain.

(1748) Evidence that an injured person has complained of pain after an
accident is admissible. (Caldwellv. Murphy, 11 N. Y., 416.)

(1749) Evidence of complaints of pain by an injured person after action
begun are admissible. (Brown v. N. V. Cent. R. R. Co., 32 N. Y., 597-)

(1750) Expressions of pain by an injured person, to a physician examining

him with a view of giving evidence are admissible. (Matteson v. N. Y. Cent.
RR. Co., 35 N. Y., 487.)
Evipence. } Cases CopIFIED. 693

 

(1751) Where statements by an injured person to a physician as to the
extent of his injury are made in the course of an examination for the pur-
pose of enabling the physician not to treat him but to testify for him, they
are not admissible even though the patient himself testifies to the truth of
them. (Davidson v. Cornell, 132 N. Y., 228.)

(1752) Statements as to his health made by an injured person are inad-
missible. (Aeedv. MW. Y. Cent. R. R. Co., 45 N. Y., 574)

(1753) Although an injured person is a witness, the exclamations of pain
made by her at the time of the injury may be proved and used to corrobor-
ate other evidence, and to give a more particular or vivid description of her
condition, (Hagenlocher v. Coney Island R. R. Co., 99 N. Y., 136.)

(1754) Declarations by an injured person of suffering from pain, made long
after the injury, to a person who is not a physician, are inadmissible,
(Roche v. Bhiyn City & N. R. R, Co., 105 NV. Y., 294.)

(1755) Declarations of pain made by an injured person after leaving the
scene of the accident are not part of ves gestae and, if not made to a physi-
cian in consultation, are inadmissible. (Kennedy v. Roch. City & B. R. R.
Co., 130 MV. Y., 654.)

(1756) Complaints of pain made by the plaintiff toa succeeding physician
during-treatment, are admissible in an action against the prior physician
for malpractice. (Link v. Sheldon, 136 NV. Y., 1.)

(2) As to Accident.

(1757) The declarations of an injured person just after an accident, in his
own favor, are not admissible to contradict other declarations made at the
same time to other persons and not in the course of the same conversa-
tion. (Downs v. N. Y. Cent. R. R. Co. 47 N. V., 83.) \

(1758) A declaration by the injured person as to the way in which the
accident occurred, made shortly afterwards, and not as a part of the occur-
rence itself, is not part of the ves gestae. (Waldelev. N. V.C.& H.R. R.
R. Co., 95 N. V., 274; Martinv. N. Y., N. Hav, & Hart. R. R. Co., 103 N
Y., 626.)

(Of Wife.)

(1759) The declaration of an injured person’s wife made at the time of an
accident that the defendant was not guilty of negligence can not be treated
as an admission of the fact by him. (Sti//wellv. N. Y. Cent. R. R. Co., 34
N. Y., 29.)

(Of Witness.)

(1760) If a witness has not given any evidence that care was taken to
avoid an accident, evidence that at the time he said it was not, is inadmis-
sible. (Furst v. Second Ave. R. R. Co., 72 N. Y., 542.)

’ (4761) As to contradicting witness by statements made out of court.
(Schultze uv. Third Ave. R. R. Co., 89 N. Y., 243.)
694 Cases CoDIFIED, [Cuap. VII.

 

(Of Servant.)

(1762) A servant’s statement, not accompanying a negligent act, but given
afterwards as an explanation of it, is not admissible against his master.
(ZLauby v. Hudson Riv. R. R, Co.,17 N. Y., 131.)

(1763) Declarations of a servant, after an accident and not accompanying
it, are not admissible against the master. (Whittaker v. Eighth Ave. R. R.
Co., 51M. Y., 295.)

(1764) Where after an accident a servant of the defendant puts out of the
way an incriminating bit of evidence, it is not admissible to prove the
reason he gave for so doing. (Anderson v. Rome, Water. & Og. R. R. Co.,
54™. ¥., 334.)

(1765) Astatement by a servant of the defendant just after an accident,
that it was due to his fault, is not admissible as part of ves gestae. (Sherman
v. Del., L. & WR. R, Co., 106 NV. V., 542.)

(Written.)

(1766) The written report of a conductor as to time of arrival of a train at
a station made pursuant to the carrier’s regulations is admissible in evidence
in a controversy between the carrier and a passenger, upon the theory that
the business of a railroad company ‘is asort of public business and their
employees a kind of public officers.” (Barker v. N. Y. Cent. R. R. Co., 24
XN. Y., 599-)

(1767) A report by a policeman, in the usual course of duty according to
acity ordinance and police regulations, to his superior officer, of an unsafe
condition of a sidewalk, is sufficient to charge the municipality with notice
thereof. (Zwogoodv. The Mayar &c. of N. Y., 102 N. Y., 216.)

(Miscell.)

(1768) Unless the reason of the discharge by a party of a witness on the
other side from his employ was communicated to the witness, evidence of
the reason is inadmissible. (Atrkpatrickv. NV. Y. C.& H.R. R. R. Co., 79
MV. Y., 240.)

(1769) Where a charter party is silent as to guaranteeing a certain depth
of water in the approaches to a wharf, the mere statement by the wharfinger
that the dock is to be dredged, and that there will be a certain depth of
water in the approaches to it, can not be taken as a guarantee thereof.
(McCaldin v. Parke, 142 N. Y., 564.)

®

Damages. ;
(Wages, Earnings, Profits.)
(1770) Proof of a man’s earnings near the time of an injury is admissible as
an element of damage. (Beisiegel v. NV. Y. Cent. R. R. Co.,40 NV. Y¥., 9.)
(1771) Evidence of the amount of an injured person’s earnings prior to his
injury is admissible on the question of damages. (Kesse/v. Butler, 53 N.
Y,, 612.)

(1772) Evidence of loss of wages due to an injury is admissible. (Sheehan
v. Edgar, 58 NV. Y., 631.)
EVIDENCE, | Cases CopIFIED. 695

 

(1773) Where loss of wages is relied on as an item of the damages, it is
admissible for a defendant to show that the wages have been paid. (Drink-
water uv. Dinsmore, 80 N. Y., 390.)

(1774) Evidence of the amount of an injured person’s earnings for several
years prior to the injury is admissible. (Zhirgottv: The Mayor, 96 N. Y., 264.)

-(1775) Evidence of past profits in a business, the nature of which is such

that the profits are more uncertain than those of a professional kind, is
inadmissible. (Masterton v, Vili. of Mt. Vern., 58 N. Y., 391.)

(fn Death Cases.)

(1776) In an action under the Death Act, proof need not be given that the
next of kin sustained actual pecuniary loss. (Oldfelav. N. Y. & Harlem
RR. Co., 14M. ¥., 310, Kellerv. N.Y. Cent. R. R. Co., 2 Abb. C. ALD., 480.)

(1777) Evidence of the occupation of the deceased is admissible. (7idey
wv. Hudson Riv. R. R. Co., 24 N. Y., 471.)

(1778) Proof of the value of services of a boy as old as eleven years is
not necessary in a death case. (O’Marav. Hudson Riv. R. R. Co., 38 N.

Y., 445.)

(1779) Evidence that the child of a person killed through another’s negli-
gence has no property is admissible. (Lockwoodv. N. Y., Lake Erie & W.
R. R. Co., 98 NV. Y., 523.)

(Miscell. Items.)

(1780) The value of the use of an injured article lost while it is being
repaired is a proper item of damage. (Whitehall Tr. Co. v. N. $. Steamb.
Co., 51 MV. Y., 369.) ‘

(1781) Interest on the amount spent in repairing an injured article is a
properitem of damage. (//.)

(1782) Evidence of the expenses of an illness consequent on an injury is
admissible. (Sheehan v. Edgar, 58 NV. Y., 631.)

(1783) Market value in other places. (Harrisv. Panama R. R. Co., 58 N.
Y., 660.)

(1784) To entitle an injured person to recover compensation for loss of
time, evidence of its value must be given. (Leeds v. Met. Gas Light Co., 90
N. Y., 26.)

(1785) Proof of the amount of money that the injured person has had to
pay to another person to do his work is not admissible as an item of dam-
age unless specially averred. (Gumbv. Twenty-third St. R. R. Co., 14M.
Y., 411.)

(1786) Proof of the amount of a physician’s bill is not admissible, without
showing its payment or the value of the services. (Jd.)

(1787) When a person’s injury required amputation of alimb, it is admis-
sible to show that he has sensations of pain, so to speak, in the amputated
limb. (Hickenbottom v. Del., L. & W. R. R. Co., 122 N. Y., 91.)

(1788) If a parent gives up his business to nurse an injured child, evidence
both of the value of the business given up and of the services as nurse
is not admissible. (Barnes v, Keene, 132 N. Y., 13.)
696 CasEs ConIFIED. {Cuap. VII.

(Of Permanency.)

(1789) Evidence of the continuing effect of an injury to the time of trial
is admissible. (Sheehan v. Edgar, 58 NV. Y., 631.)

(1790) Under a complaint alleging bodily injury as the result of negli-
gence, evidence of the permanency ‘of the injury is admissible. (Zhrgott
v. The Mayor, 96 N. Y., 264.) See Opinions.

(In Rebuttal.)

(1791) When inability to work at one’s trade is one of the elements of
damage, and the defense claims that the injured person had not sought
work, it is admissible to show that his circumstances were such that he
would probably have been engaged in work, if not disabled. (Caldwell v.
Murphy, 11 N. ¥., 416.)

(1792) In rebuttal ofa claim that the plaintiff has retarded his own recovery
by careless behavior, he may show that he acted as he did under his
physician’s advice. (Lyons v, Evie Railway Co., 57 N. Y., 489. )

(1793) In answer to evidence on the part of the defense that an injured
person has not been properly treated, it may be shown that he was too
poor to employ a skillful physician. (AMerti v. NV. Y., L. Erie& WLR. R.
Co., 118 NM. Y., 77.)

(ln Mitigation.)

(1794) The fact that the deceased had his life insured is not admissible
in mitigation of damages. (Kelloggv. N. V.C.& H.R. R.R. Co., 79 M. Vy
72.

vs Burden of Proof. (Slater v. Mersereau, 64 N. Y., 138.)

(As to Exemplary.)

(1795) Where a plaintiff seeks to enhance the damages for a personal
injury by showing circumstances of aggravation, defendant has the right
to give evidence tending to exculpate him from personal misconduct or
recklessness. (Millard v. Brown, 35 N. Y., 297.)

(1796) Evidence that an act of negligence was reckless;and of a criminal
nature is relevant on the question of exemplary damages. (Cleghorn v. NV.
V.C.& A. RR, R. Co., 56M. Y., 44.)

And see Chap. VI, Damages.

Admissibility or Effect of Certain Things.
(Under Pleadings.)

(1997) It has been said that where a plaintiff has alleged special acts of
negligence he is confined to proof of them. (Alexander v. Greene, 7 Hill, at
P- 539.)

(1798) Under a complaint containing a general averment of defendant’s
negligence, evidence of negligence of any kind which will warrant a
recovery is admissible. (Oldfield uv, NV. Y. & Har. R. R. Co., 14 NW. Y., 310.)

(1799) Inan action by one neighbour against another to recover damages
to former’s house resulting from negligent blasting on latter’s premises, the
defendant may, under a general denial, introduce an agreement with a con-

tractor for the purpose of showing that he is not responsible. (oemer v.
Striker, 142 N. Y., 134.)
EvIpENCcE. ] Cases CopIFIED. 697

 

(Res inter alios acta.)
(1) Judgment Rolls.

(1800) A judgment against a town for damages resulting from the negli-
gence of its highway commissioner is not evidence of his negligence in an
action over against him by the town to recoverits amount. (Highway Law
of 1890, § 17.)

(1801) Evidence that another person has recovered a judgment for dam-
ages due to the same cause is inadmissible. (O’ Hagan v. Dillon, 76 N. Y.,
170.)

(8802) Where two persons notin privity with each other are injured by the
same act of another, a judgment against the latter in favor of one of them,
establishing such act to have been negligent as to him, is not admissible in
an action against the same defendant by the other person. (Stout v. The
State, 138 NV. Y., 124.)

See Chap. X, Misc. Subj., sd. zom., Recovery over.

(2) Custom.

(1803) Evidence of a practice between street-car and fire companies
whereby a street-car is to be stopped or started on signal from the person
‘in charge of a fire company’s vehicle is admissible as evidence of negligence
in disregarding a signal, whereby a collision results. (Maverick v. Eighth
Ave. R. R. Co., 36 N. Y., 378.)

(1804) Evidence of a custom which would call a person rightfully to a spot
where he is injured and where he had no right to be but for the custom, is
admissible to account for and excuse his being there. (Galvin v. The Mayor,
112 MV. Y., 223.)

(1805) It is admissible to show the usual distance of tell-tales from bridges
over railroads. (Wallace v. Cent. Verm. R. R. Co., 138 N. Y., 302.)

(3) Freedom from Accident.

, (1806) Evidence that no such accident ever happened before is admissible.
‘(Dougan v. Champlain Transp. Co., 56 N. Y.,1, Crocheron v. North Shore &c.
F. Co,, 56 NV. Y., 656, Loftus v. Union Ferry Co., 84 .N. ¥., 455, Craighead v.
‘Bhiyn City R.R.Co., 123 N.Y., 391, Glasier v. Town of Hebron, 131 N.Y., 447.)
(1807) Where a platform at a station has been used for many years by
thousands of passengers night and day without danger, its maintenance is
not negligence. (Laflinv. Buff. & Southwest. R. R. Co., 106 N. Y., 136.)

(4) Happening of Other Accidents.

The rule allowing evidence that no such accident ever happened
before, in aid of a denial of negligence, naturally gave rise to a rule
allowing evidence of prior similar accidents to sustain a charge of
negligence. It is open to serious question whether such evidence ought
to beallowed in either case, because it tends to create tou many issues.

(1808) Evidence of prior accidents, in which witnesses have been, is
admissible. (Mailler v. Exp. Propell. Line, 61 N. Y., 312.)

(1809) Upon the issue of seaworthiness of a boat, evidence of its former
_ Sinking is admissible. (Baird v. Daly, 68 MN. Y., 547.)
698 CasEs CoDIFIED. (Cuap. VII.

 

(1810) Evidence of prior accidents at the same spot in a highway is relevant
to show that it is unsafe. (Wooley v. Grand St.& Newt. R.R.Co., 83 N.Y.,121.)

(1811) It is admissible to show that a similar accident has happened at the
same spot from the same cause, prior to the accident in suit. (Pom/frey v.
Vill. of Saratoga Spr., 104 N. Y., 459.)

(1812) Where the contention is whether property was set on fire by sparks.
from the defendant’s locomotive or from that of another company which
passed by about the same time, evidence by a person familiar with the two
engines as to which was in the habit of emitting the most sparks is admis-
sible. (Collinsv. N.Y. C.& H.R. R. R. Co., 109 NM. Y., 243.)

(1813) Evidence of a former accident from a machine is admissible when
given to show defect in the machine and knowledge thereof by its owner.
(Mc Carragher v. Rogers, 120 N. Y., 526.)

(1814) In an action arising out of a fall on ice on a sidewalk out of repair,
evidence of a fall at the same place by another person two years before is.
inadmissible. (Gi/rie uv. City of Lockport, 122 N. Y., 403.)

(1815) If, for the purpose of showing that a carrier is negligently maintaining
a dangerous place at a station, it is sought to show that similar accidents to
the one in question have occurred at other stations, similarity of conditions
as well as of accident must first be shown. (Brady v. Manhattan Railway Co.,
127 MV. Y., 46.) ©

(1816) Where the issue is whether a servant knowingly takes dangerous
employment, evidence on his behalf of prior similar accidents in such
employment is inadmissible. (Dye v. D.,L. & W. R. R. Co., 130 N. Y., 671.)

(5) Miscellaneous Acts.

(1817) Where the issue in an action against an innkeeper for loss of guest’s
goods by fire is whether the fire was an incendiary one, evidence of an
incendiary attempt in the same neighbourhood on the same night is admis-
sible. (Faucett v, Nichols, 64 N. Y., 377:)

(1818) Where several persons are confronted by impending danger, what
they do in endeavoring to escape it isadmissible in order to show what was
deemed prudent to be done. (Twomley v. Cent. Ph., N.& E.R. RR. Co.,
69 M. Y., 158.)

(1819) Evidence of a confusion among the other passengers on a train,
concurrent with an injury to one of them, is admissible, in an action by

tha, one against the carrier, as part of the res gestae, (Hallahanv. N.Y.,L.
Erie & W.R. R. Co., 102 N. Y., 194.)

(1820) Upon an issue whether an overflow upon a claimant’s land has been
caused by a defective dam built by the state across a creck, it ig admissible
for the state to show that obstructions created by bridges and railroad
embankments below said land hindered the discharge of the waters of the
creek, (Spencer v, The State, 135 N. Y., 619.)

See also Fires, Acts of Plff., Acts of Deft., infra,

(Fires.)

(1821) In support of an allegation that a fire nas been kindled by sparks
from a passing locomotive, it is enough, after evidence tending to exclude
Evinence. ] Cases CopIFIED. 699

 

any other origin of the fire, to show that defendant’s locomotives on other
occasions have emitted sparks sufficient to produce the fire in question,
(Sheldon v. Hud, Riv. R. R. Co., 14 N, V., 218, Fieldv. N.Y. Cent. R. R. Co.,
32 MV. Y., 339, O'Neil v. N. Y., Ont. & W.R. R. Co., 115 NV. Y., 579.)

(1822) In an action for negligent firing of a building by sparks from a steam
engine, evidence of the distance at which other fires had been kindled by
sparks from the same engine is admissible. (Hinds v, Barton, 25 NV. Y, 544.)

(1823) Evidence that coals have been scattered ona track, is admissible to
show improper construction or management. (Field v, N.Y. Cent. R. R. Co.,
32. ¥., 339.)

(1824) Evidence of the emission of sparks from an engine, which have on
prior occasions set fire to adjacent property, is admissible to prove negli-
gence in using it. (Bedell v. Long Isl. R. R. Co., 44 WV. Y., 367 )

(1825) In an action to recover damages to property near a railroad by fire,
evidence that passing engines were in the habit of showering sparks further
than the property burned is competent to warrant the inference that the fire
in question was thus caused. (Crist v. Erie Railway Co., 58 NV. Y., 638.)

(1826) Evidence that six months after a fire, produced by sparks from one
of two locomotives, sparks of large size were emitted from one of them is
inadmissible without proof that it was in the same condition. (Collins v.
N.Y. C.& H.R. R. R. Co., 109 N. Y., 243.)

(1827) An explosion on a neighbour’s premises is not sufficient evidence
of negligence in causing a spreading fire. (Cosulich v. Standard Oil Co., 122
MV. Y.<, 118.)

(Acts of Plaintiff.)

(1828) Upon the issue as to the amount of money left with an innkeeper
by a guest, it is admissible to show that the guest was shortly before in
possession of similarsums. (Wilkins v. Earle, 44 N. Y., 172.)

(1829) In an action against a physician for malpractice, evidence that he
has not presented any bill is inadmissible. (Baird v. Gillett, 47 N.Y., 186)

(1830) Evidence that negotiations for a settlement were pending is admis-
sible to explain delay in bringing suit. (Downs v. N. Y. Cent, R. R. Co., 47
N. Y., 83.)

(1831) Evidence that a person has been in the habit of jumping on cars
while in motion is inadmissible in an action for an injury received while so
doing. (Zppendorf v. Bhiyn City & N. R. R. Co., 69 N. Y., 195.)

(1832) A patient suing a physician for malpractice may be asked if he

*relied on what the physician told him. (Carpenter v. Blake, 75 N. Y., 12.)

(1833) Where an issue is whether an upset of a wagon was due to defend-
ant’s negligence or to a defect in the wagon, it is admissible to’ show that
the day after the accident the wagon came. near being upset through a
disarrangement of its contrivance designed to prevent an upset. (Hoyt v.
N. Y., Lake Erie & W. R. R. Co., 18 NV. ¥., 399.)

(1834) Evidence that a plaintiff is an habitual litigant is inadmissible,
Palmeriv. Manhattan R. Co., 133 WV. Y., 261.)
700 Caszs CopIFIED. [Cuap. VII.

 

(Acts, &xc., of Defendant or Other Person.)
(1) Before Accident.

(1835) Upon an issue whether a flagman signalled at a crossing, evidence
that he is a man of intemperate habits is inadmissible. (Warner v. N. Y.
Cent. R. R. Co., 44 N. Y., 465.)

(1836) Evidence that a railroad company had purchased a building, which
obscures a track at a crossing, is inadmissible. (Salter v. Utica & Bl. Riv,
R. R. Co., 59 NM. Y., 631.)

(1837) In an action for malpractice, itis competent for the defense to
prove the professional standing of the physician charged with the mal-
practice. (Doyle v. N. Y. Eye & Ear Inf., 80 N. Y., 631.)

(1838) An offer of a wrong-doer to pay an injured person a certain sum per
week or to pay a doctor’s bill is admissible, if not made in compromise or
accompanied by a statement that it is to be considered as confidential.
(Brice v. Bauer, 108 N. Y., 428.)

(1839) In an action for malpractice, it is not admissible for the defendant
to state the results of treatment by himself of similar cases. (Link v.
Sheldon, 136 N. Y., 1.)

(2) After Accident.

(1840) Evidence that a railroad company has laid new ties at other places
than that of an accident and subsequently thereto is inadmissible. (Reed
uw. N.Y. Cent. R. R. Co., 45 NV. Y., 574)

(1841) Evidence that a defendant after an unforeseen accident changed
arrangements, which had made the accident possible, is not admissible to
prove negligence in allowing them to be as they were. (Dugan v. Champlain
Transp. Co., 56 N. Y., 1.)

(1842) Evidence of defendant’s actions after an accident as showing
greater care, is not admissible to prove that a want of care produced the
accident. (Baird v. Daly, 68 N. Y., 547.)

(1843) Evidence of the condition of premises a few days after an accident
is admissible. (DeForest v. City of Utica, 69 N. Y., 614. Petl v. Reinhart,
127 \. ¥., 381.) :

(1844) Evidence of ordinary betterments on railroads, months after an
gis ie is not admissible to show negligence as the cause of such
accident, (Dalev. D., LZ, & W.R. R, Co., 73 N. Y., 468.)

(1845) Evidence that an obstruction on a city street, opened without right,
was removed under resolution of the city council a few days after an
accident caused by it, is competent for the purpose of showing that the city
at the time of the accident assumed to maintain the street as such. (Sewall
v. City of Cohoes, 75 N. Y., 45.)

(1846) Evidence that the Commissioners of Highways repaireda highway
immediately after an accident is admissible to show possession by them of
of sufficient funds, so as to afford ground for the inference of negligence, in
failing to make the repairs sooner. (Aforrel/ v. Peck, 88 NV. Y., 398.) :
EvIpENCE. ] Cases CopIrIEp. 701

(1847) In an action against a municipality to recover damages sustained on
account of an unsafe sidewalk, it is not admissible to prove that after the
accident the house-owner made the sidewalk safe. (Corcoran v. Village of
Peekskill, 108 N. Y., 151.)

(1848) Evidence of the immediate replacing of a broken appliance by
another, which does not break is admissible, on the question of defendant’s
negligence, to show that there was existing at hand adequate means of
accomplishing what was to be done. (A@idler v. Ocean S.S. Co. of S., 118 N.
¥., 199.)

(1849) Rule as to inadmissibility of subsequent acts applied. (Getty v.
Town of Hamlin, 127 N. Y., 636.)

(1850) Evidence that a few days after an accident due toa defective high-
way, the commissioner of highways repaired it, is not relevant upon the
issue whether he had funds to do so at the time of the accident. (Clapper
wv. Town of Waterford, 131 N. Y., 382.)

(Ownership.)

(1851) When personal property in use by one person is proved to have been
owned by another, the inference is warranted that such use was on behalf
of the latter. (Morris v. Kohler, 41 N. Y., 42.)

(1852) Itis sufficient proof of ownership of a vehicle that a person’s name
is printed on it, and that it has near the time in question left his premises
with his goods for delivery to his customers. (Seaman v. Koehler, 122 NV. V.,
646.)

(Pleadings and Other Writings.)

(1853) The pleadings may be read to the jury. (Zisdale v. Del. & Hud. C,
Co., 116 NV. Y., 416.)

(1854) Newspaper quotations of prices are not admissible as evidence of
values. (Whelan v. Lynch, 60 N. Y., 469.)

(1855) Evidence of a regulation of a department of a city government
prescribing the height to which bricks may be piled in the streets is admis-
sible in an action against the municipality for damages occasioned by a fall
of a pile of bricks erected above such height. (Rehberg uv. The Mayor, ot N.
V., 137.)

(1856) Where an injury occurs in another state through the management
of atrain, the statutes of that state regulating the running of trains are
admissible on the question whether the train was negligently run. (Archer
uN. Y.,N. H. & H.R. R, Co., 106 MW. ¥., 589.)

(1857) A letter to a city official calling attention to the dangerous contents

ofa man’s store is not admissible in an action to recover damages for
injuries caused by an explosion in such store. (fidlov. Fones, 2 Abb. C. A,
Dz, 121.)
See also Judg. Rolls, supra.
(Ocular Evidence.)
(1858) It is not error for the trial court to allow a party to exhibit the

injured part of his body to a surgeon in the presence of the jury. (M/u/hado
u, City of Brooklyn, 30 N. Y., 370.)
702 Cases CopDIFIED. [Cuap. VII.

 

(1859) It is allowable to exhibit to the jury a broken piece of the appliance,
the breaking of which caused the injury. (Kingv. N. Y. Cent. & Hud, R.
R. R. Co., 72 NM. Y., 607.)

(1860) A person who claims that he was injured by the negligent fall of a
missile is not bound to producesit at the trial. (Volkmar v. Man. R. Co.,
134 MV. Y., 418.)

(1861) There is no power in the court to compel the plaintiff in a suit to
recover damages for a physical injury to submit toa surgical examination
of his person. (AfcQuigan v. Del., Lack. & W. R. R. Co., 129 M. Y., 50.)

For the subsequent act of 1893 allowing it in certain cases, see Chap.
IX, Practice.
(Parole.)

(1862) Where damages are paid for an accident before recovery from the
injury, and a 1eceipt is given reciting that such payment is in full for the
damages sustained, parole evidence is inadmissible to show that the accord
andsatisfaction so expressed in the receipt was conditional and not absolute.
(Coon vu. Knap, 8 N. Y., 402.)

(Zn Crossing Cases.)

(1863) Evidence of the absence of a flagman at a railroad crossing, where
one is usually stationed, isadmissible as one of the attendant circumstances,
bearing upon the question whether the defendant was at the time running
its train negligently. (McGrathv. N. Y. Cent. & H.R. R. R. Co., 63 NV. Y.,
522.)

(1864) Great speed of a railroad train at a crossing, while not in itself
necessarily negligent, may in connection with other circumstances tend to
establish negligence in the management of the train. (Salter v. Utica & Bl.
hiv. Rk. R. Co., 88 N. Y., 42.)

(1865) Even if in a special case, failure to ring a bell at a crossing is not
chargeable against a railroad company as negligence, yet it may be con-
sidered by the party as bearing upon the defendant’s conduct. (Schwier v.
N.Y.C.& H.R. RR. Co., 90M. ¥., 558.)

(1866) The testimony of passengers on a train that they did not hear any
signals on approaching a crossing is admissible. (Greaney v. Long Island
R. &. Co., 101 NV. ¥., 419.)

(Between Neighbours.)

(867) If the circumstances attending the building by a municipality of a
wall are such that it is not bound to build a wall of masonry, its building of
a dry wall, which allows water to flow through, is not evidence of a negli-
gent construction of the wall. (Watson v. City of Kingston, 114 N. Y., 88.)

(Between Carriers and Passengers or Shippers.) a

(1868) A certificate of inspection of a steamboat is evidence only of the fact
that she has been inspected according to law, and is not evidence that she
was at the time in a fit state to carry passengers. (Erickson v. Smith, 2 Abo,
C. A. D., 64.)
Evivence. | Casres CopIFIED. 703

 

(1869) When two carriers combine to run through trains over their roads,
selling tickets for continuous passage, proof of delivery of baggage to-the
first company is sufficient to sustain an action for its loss against the other.
(Hart v. Rens, & Sar. R. R. Co., 8 N. Y., 37.)

(1870) A common carrier can only rebut the presumption that an injury to
its passenger from an accident to its conveyance was due to its negligence,
by showing that the accident occurred from circumstances against which
human prudence and foresight could not guard. (Bowen v. N. Y. Cent. R.
R. Co., 18 N. ¥., 408.) i

(1871) Evidence of a practice between street-car and fire companies
whereby astreet-car is to be stopped or started on signal from the person in
charge of a fire company’s vehicle is admissible to show negligence in the
car conductor in disregarding a signal whereby acollision results. (A/averick
v. Eighth Ave, R. R. Co., 36 .N. ¥., 378.)

(1872) Evidence to sustain counterclaim of negligence in suit for freight.
(Starbird v. Barrons, 43 N. Y, 200.)

(Between Master and Servant.)

(1873) Failure to obey a rule which was made to prevent an accident is
admissible on the question whether an accident was the result of negligence.
(Woody. N.Y. C. & H.R. R. R. Co,, 70 N. Y, 195.)

(1874) Employment as a servant upon a job issufficiently proved by show-
ing that the servant’s name is on the pay-roll of the job and that he has
received money for work done by him on it. (Manning v. Hogan, 78 N. Y.,
615.)

(1875) In an action by a servant against a master for damages resulting
from the use of an unsafe appliance, evidence that the servant having

- charge of the operation was intoxicated is admissible. (Probst v. Delamater,
100 V. Y., 266.)

(1876) Evidence that an appliance has become worn is not sufficient proof
that it is not fitfor its purpose. (Smithy. N. Y.C.&@ H.R. RR. Co., 118
N. Y., 645.)

(1877) The fact that a tell-tale of a bridge is out of order is to be taken into
account in determining whether a brakeman on top of a train was negligent
in allowing himself to be hit by the bridge. (Wallace v. Cent. Vt. R. R. Co.,
138 MV. Y, 302.) ,

(1878) Where the issue is whether an inspection of a brake on a train has
been made ata station pursuant to the company’s rules, it is admissible to
show that several brakes on the same train were out of order when the train
leftthe station. (Bailey v. Rome, Wat. & Og. R. R. Co., 139 M. Y., 302.)

Cross REFERENCES.

See Chap. VIII., Causes, Chap. IX., Practice, sub nom., Non-
suit; Chapter X., Miscell. Subj., sub nom., Statutory Causes,
Ordinances, Notice, Res adjudicaia.
704 Cases CopIFIED. [Cuap. VIII.

 

CHAPTER VIII.
CAUSES.

§ 229. In determining whether a person has been guilty of
causative or contributory negligence, only the proximate cause
of the injury can be considered.

Or: Causa proxima non remota spectatur.

§ 230. Where it appears upon the plaintiffs evidence that the
injury proceeded from two causes, one of whichinculpates the
defendant, and the other does not, it is not yet settled whether
the plaintiff should be nonsuited, or whether it should be sent to
the jury to determine which was the cause.

Or: It is not yet settled whether a case should be taken from or left
to the jury, where the plaintiff's evidence leaves it doubtful whether the

injury complained of was the result of a cause which inculpates, or of a
cause which exculpates the defendant as to the charge of negligence.

§ 231. Intermediate causes, concurring in producing an injury,
do not operate to make aprior cause a remote one, if the injury,
in whole or in part, would have happened without them.

COLLECTED FROM THE FOLLOWING DECISIONS,
GROUPED UNDER THESE HEADINGS.

Proximate and Remote. Proximate and Remote, (cont’d.)
In General. Travellers on Highways.
Ice and Snow. Under Civil Damage Act.
Fires. Miscellaneous.
Master and Servant. Several Causes.
Carrier and Passenger. Intermediate Causes.
Carrier and Shipper. Nonsuit,

Proximate and Kemote Causes.
(Za General.)
(1879) An injury must be caused not merely essentially but solely by the
negligenge of defendant. (Grigpenv. N. Y. Cent. R. R. Co., 40 N. ¥., 246)
(1880) When death is certain to result from an injury, unless prevented by
proper medical treatment, improper medical treatment causing death is not

to be regarded as making the former its remote cause. (Sauterv. N.Y. C.
& HR. RR. Co. 66 N. V., 50.)

(“ce and Snow.)

(1881) ‘A slight incline of a sidewalk, due to debris negligently suffered by
a municipality to accumulate, cannot be presumed to be the proximate

cause of a slip by a passer-by on ice covering it. (Zaylor v. City of Yonkers,
tog NW. Y.. 202.)
‘AUSES. | Cases CopIFIED. 705

 

(1882) When the issue is whether a person has been negligently run over
y astreet-car, the failure of the company to remove ice from the street
etween its tracks cannot be regarded as a cause of the injury. (Szlberstei
. Houst., W. St. & P. FR. R. Co, 117 NM. Y., 293-)

(1883) The failure for several weeks to remove snow from a sidewalk is
ot the proximate cause of an accident from slipping on ice, formed the
light before out of slush resulting from warm weather prevailing for several
lays previous. (Harrington v. City of Buffalo, 121 N. Y., 147.)

(Fires.)

(1884) A negligent fire on one’s own land is not the proximate cause of a
ire on a neighbour's land resulting from the heat and sparks of the first fire.
Ryanv. N. Y. Cent. R. R. Co., 35 N. Y., 210.)

(1885) Where a fire is carried by visible agencies rather than by the wind
the cause isnot remote. (Webb v. Rome, Water, S& Og. R. R. Co., 49 NV. Y.,;
#20 )

(1886) The fact that a fire reaches plaintiff’s property over intervening land
does not make the original cause of the fire a remote cause. (O'Neill v, NV.
¥.,0. & W.R. R. Co, 115 N. Y., 579.)

(1887) Where a negligently-caused fire spreads from one man’s premises to
another’s, and then to another’s, and so on, the negligence resulting in tne
first fire is not the proximate cause of the burning of the last house. (ead
v, Nichols, 118 N. Y., 224)

(Master and Servant.)

(1888) Though the control over a locomotive may be lessened because a
throttle-valve is defective, the defect isnot the proximate cause of an injury
resulting from its not being stopped in time, where the signal to stop was
not seen by the engineer in time, and when seen was promptly obeyed.
(Bajus v. Syr., Bing. & N.Y. R. R. Co., 103 M. Y., 312.)

(1889) Where a servant is placed in peril through the negligence of a co-
servant, from which, however, he could extricate himself if the master’s
appliance is in proper order, and because itis not he is injured, the defective
appliance is the proximate cause of the injury, rather than the co-servant's
negligence. (Lillyv. N. V.C.& ARR. R. Co.. 10; -V. V., 566.)

(1890) If a collision between two raiiroad trains would not have happened
had the engineer of one of them not been running at a forbidden rate of
speed, his doing so contributed to it, so far as injury to himselfis concerned,
even though the direct cause of the collision was a mistake of a telegraph
operator. (Sutherland v. Troy & Bost. R. R. Co., 125 N. Y., 737-)

(Carrier and Passenger.)

» (1891) An explosion of a boiler on a steamboat is the proximate cause of
the death of a passenger, who is drowned, either by falling overboard while
with ‘due care seeking a place of safety, or by rushing overboard unable to
bear the pains of wounds and in belief that they are fatal. (Zvickson v. Smith,
2 Abb. C. A. D., 64.) =
706 Cases CopIFIED. (Cuap. VIII.

 

(1892) The negligence of a switchman whereby atrain isderailed, through
which injury ensues to a passenger is the proximate cause of the injury.
(Smith v. N. VY & Harlem R. R. Co., 19 N. Y., 127.)

(1893) Injury to a passenger on a crowded ferryboat froma horse falling, in
an endeavor to step up from the boat to the bridge is not a remote result of
the omission to lower the bridge to the level of the boat. (Hazmanv. Hob.
Land & Imp. Co., 50 N. Y., 53.)

(1894) High speed at which a street-car is driven is not the proximate cause
of an injury to a passenger, resulting from the unexpected act of a driver of
a vehicle on the other track in suddenly turning out of it when abreast of the
car. (Alexander v. Rochester C. & BR. R. Co., 128 NM. Y., 13.)

(Carrier and Shipper.)

(1895) A sudden gust of wind diverting the course of a distant fire so as to
drive the flames in the direction of and upon goods in transit is not to be
considered as an act of God which excuses the carrier for their loss. (A@il/er
wv. Steam Navig. Co., 10 N. Y., 431.)

(1896) Where lumber has been safely transported on a flat-car, partially
unloaded, and left in an insecurecondition over night, the fact that a flat-
car was used rather than a regular lumber car, is not the proximate cause of
an accident resulting from the lumber being blown on the main track, (MM
Y,, Lake Erie & W. R. R. Co., uv. Atlantic Ref. Co., 127 N. Y., 597)

(Travellers on Highways.)

(1897) The negligence of the parent of a child in allowingit to escape from
his custody is nota proximate cause of an injury to the child during such
escape, where it has gotten into the custody of another person, (Bahrenburgh
v, Bhiyn. City, H. P.& P. P.R.R. Co., 56M. Y., 652.)

(1898) The fact that a driver of a runaway horse, in trying to stop him
causes him to deflect from his course, whereby he runs over.a passer-by,
whom he would not have run over unless so deflected, does not operate to
make the cause of the runaway a remote cause in producing that particulat
injury. (Lowery v. Manhattan Railway Co., 99 N. Y., 158.)

(1899) The omission of an engineer to sound the statutory signals on his
engine, when near acrossing, is not the cause of an injury to an escaped
infant, where the situation is such that the signals if sounded wouldnot have
directed the attention of its custodian to its danger. (Chrystal v. T) roy &
Boston R. R. Co., 124 N. V., 519.)

(1900) Absence of a headlight on a locomotive is not the proximate cause of
an accigent to a passer-by at a crossing, if the train is visible without it,
(Daniels v, Staten Isl. R. T. R. R. Co., 125 N. Y., 607.)

(1g01) The negligence of the state in leaving an opening in its bridge
unguarded, so that a child may fall through, is the proximate cause of the
death of its parent who is drowned upon plunging in to save it. (Gibney v.
The State, 137 N. Y¥., 1.)

(Under Civil Damage Act.)

(1902) Under the Civil Damage Act it is immaterial that the act of the in-
toxicated person which causes the injury to the plaintiff was notan expectable
consequence of the intoxication. (Meu v. McKechnie, 95 N. Y., 632.)
AUSES, ] Cases CODIFIED. 707

 

(1903) Where intoxication of a person results in an injury specified in the
Civil Damage Act, the sale of any liquor, which contributes in the slightest
jegree to such intoxication, is, under that act, the proximate cause of the
injury. (Hall v. Germain, 131 N. Y., 536.)

(1904) The sale of liquor to one person, is not the proximate cause of
intoxication of another person to whom the former gives it. (Dudley v.
Parker, 132 N. Y., 386.)

(Miscellaneous.)

(1905) The negligence of a county clerk in failing to return a lien by judg-
ment on a search, is not the proximate cause of damages arising from a sale
of the property under the lien suffered to take place through ignorance of
its existence. (Kimball v. Connolly, 2 Abb, C. A. D., 504.)

(1906) The negligent act of a vendor of a poisonous drug in misnaming it
on its label is the proximate cause of injury to a person who buys it from
an intermediate vendor. (Thomas v. Winchester, 6 N. Y., 397.)

(1907)Keeping a bawdy-house is not the proximate cause of its destruction
by the ‘‘ virtuous citizens.” (Zi v. Board of Superv., 36 N. Y., 297.)

(1908) Negligence of a house-owner causing a leak in his gas-pipe is not
the proximate cause of an explosion caused by lighting a match during an
investigation as to the whereabouts of the leak. (Lannen v. Albany Gas
Light Co., 44 NV. Y., 459.)

(1909) When work is being done by a contractor under contract, the other
party agreeing to furnish the necessary appliances, a deficiency in the
number of the appliances is not the proximate cause of an accident which
is due to a negligent use of the appliances occasioned by such deficiency. '
(Hofnagelv. N. ¥. C. & H.R. R. R. Co. 55 N. Y., 608.)

(1910) The negligence of a telegraph company, in delivering a telegraphic
request for a loan of $500 as a request for $5000, is not the proximate cause
ofa loss of the money by the receiver of the message, whose compliance
with the request as received results in so great a strain on the borrower’s
honesty thathe absconds. (Lowery v. West. Un. Tel. Co., 60 NV. Y., 198.)

(1911) The negligence of a telegraph company in erroneously transmitting
a message, which as delivered to it is an unintelligible jargon, is not the
proximate cause of a loss occasioned by the receiver of the message acting
upon his own interpretation as to whatits means. (Hart v. Direct U. S.
Cable Co., 86 NV. Y., 633.)

Several Causes.

(1912) When two causes combine to producean injury, both proximate, the
one culpable, the other not, the defendant is not liable unless it appears
that the injury would not have been sustained but for the culpable cause.
(Ring v. City of Cohoes, 77 N. Y., 83.)

(1913) Rule in Ring case, as to two causes applied. (Phillips v. N.Y. C.
& H.R. RR. Co., 127 M. Y., 657.)
708 CasEs CoDIFIED. (Cuap. VIII.

 

(1914) Damage occurring through the sudden unmanageableness of one’s
horse, caused by the unheralded approach ofa train shooting out of a cut
near a crossing, is to be deemed due to the neglect to give the signals
rather than to the conduct of the animal. (Cosgrove v. N. Y. Cent. & H. R.
R. R. Co., 87 N. Y,, 88.) -

(1915) Where an injury results from one of two causes, one of which
inculpates and the other exculpates the defendant, it is for the jury to say
which is the producing cause. (Durkin v. Sharp as Ree’r, 88 N. Y., 225 )

(1916) Where an accident may have happened from one of two causes as
to only one of which negligence can be predicated, and there is no proof
as to which was the cause, the plaintiff should be nonsuited. (Searles v.
Manhattan R’way Co.,101 NV. Y., 661.)

(1917) Where an injury may have come from one of two causes, one of
which is inculpatory, and the other is exculpatory of defendant, it is for the
jury to say which was the cause. (Seeley v. NV. Y. Cent. @ H.R. R. R. Co.,
102 WV. Y,, 719.)

(1918) When upon the evidence an injury may have occurred from one of
several causes, only one of which inculpates the defendant, a plaintiff should
be nonsuited, if he does not give evidence to negative each of the others
as the producing cause. (Doddins v. Brown, 119 NV. Y., 188.)

(1919) Rule in Searles v. Manhattan R. R. Co., 101 N. Y., 661, applied.
(Grant v, Penn, & N.Y. Canal & R. R. Co., 133 N. Y., 657.)

(1920) Where a plaintiff seeks to recover upon two grounds, one of negli-
gence for breach of a general duty, the other for breach of a special
contract, and it is left to a jury to find a verdict on either ground, and it
does not appear from the record on which ground a verdict for the plaintiff
was based, the judgment must be reversed unless both grounds can be
sustained. (M:Caldin v. Parke, 142 N. Y., 564.)

Intermediate.

(1921) Where an injury would have been the result ofnegligence, without
the aid of an intermediate concurring cause, the existence of such an inter-
mediate cause does not operate to make the first cause a remote one.
(Pollett v. Long, 56 N. Y., 200.)

Nonsuit.

(1922) Where a plaintiff's evidence does not show affirmatively a want of
care 6n the part of an injured person, and is quite consistent with due care,
it is error to nonsuit. (Galvin v, The Mayor, 112 N. Y., 223.)

See Chap. IX, Practice, sud, nom., Nonsuit.

Cross REFERENCES,

See Chap. IV, Ques. of Fact; Chap. VII, Evidence, sud. nom.,
Burd. of Proof, Presumptions, Inferences, Conflict of Evid.,
Miscell. Rulings; Chap. IX, Practice, sub. nom., Nonsuit.
 

Par. Px. Pr. ] Cases CoDIFIED. 709
CHAPTER IX.

PARTIES.—PLEADING.—PRACTICE.

§ 232. Where several parties are guilty of a joint act of negli-
gence, or of several acts of negligence, by which an injury
results to another person, all, or any number of them, may be
sued in one action.

§ 233. The neglect of an agent to perform properly a con-
tract with his principal, whereby his principal is rendered liable
to a third person, does not give the latter any cause of action
directly against the agent.

§ 234. Asimple averment in a complaint that the plaintiff
sustained an injury through the negligence of the defendant
presents a complete cause of action.

§ 235. Any damages which do not necessarily flow from the
injury mentioned in the complaint, must be specially pleaded.

§ 236. Whenever the presentation of a claim for damages
against a municipality is required by statute to be made to an
officer thereof before suit, the fact that it was so presented and
that all the formalities prescribed were complied with must be
‘specially pleaded in the complaint.

§ 237. In demanding damages in a complaint, no regard need
be paid to the amount, which may have been named as the
‘damages, in the statement of a claim presented to an officer of
a municipality.

Where damages are unliquidated there can be no good reason under
our code practice why any specific sum should be named at all ina
complaint. A demand of judgment forsuch sum as to the court and jury
seems proper, meets all the requirements of § 481 of the Code of Civil
Procedure. It is ‘‘ademand of the judgment to which plaintiff supposes
himself entitled.””, He can not’very well suppose himself to be entitled
toany more than the jury under the approval of the court will give him.
Why notsay so? Asitis impolitic to make demands of small sums, so
it is unnecessary to name fabulous amounts.

§ 238. In actions to recover damages for causative negligence,
it is not necessary for a defendant in his answer to allege .that
the injury mentioned in the complaint was due to the negli-
gence of the plaintiff.
710 Cases CopIFIED. [Cuap. IX,

 

§ 239. In actions other than those referred to in the last sec-
tion, contributory negligence of the plaintiff, in order to be
relied on, must be specially averred.

§ 240. Where a permit or an ordinance, or other special
matter, is relied upon by either party it must be specially
pleaded.

There is some question whether in a local municipal court, an ordin-
ance of the municipality in which it is situated needs to be pleaded.

§ 241. Although under a complaint, which specifically
describes the negligence complained of, the plaintiff is limited
to proof of that which is so set out, an amendment, allowing
proof of any other act of negligence, does not change the cause
of action, so long as it has to do with the same injury.

One is at a loss to understand why complaints in negligence suits are
so often drawn as if the pleader were living fifty years ago and drafting
a billin chancery. Anticipation and avoidance are seldom necessary
in actions at law. The less surface a sail presents in a squall, the less
likely is a boat to be capsized. The simpler a complaint is, the less the
plaintiff has to prove, and the more he can prove, if it is comprehensive
enough. Indefiniteness must of course be avoided, but that can not be
taken advantage of by the defendantatthetrial. In these days of steno-
graphy andtypewriting the length of our pleadings, and other law papers,
is simply appalling. It is open to serious question whether these inven-
tions are not labor-increasing devices, It may save timein the beginning
fora hurried lawyer to rattle offa rambling tale to a stenographer, endorse
it as a complaint, have it served without much further thought, and
trust to luck and the right of amendment to get through atthe trial. But
when the time of others in reading it, before trial, at the trial, on appeal,
and in discussing its meaning, is considered, it is easily seen that a
careful, studious, drafting of a pleading by the pleader himself, so as to
aver what is necessary and to omit what is superfluous, saves time in
the end. Unless we take care the art of pleading—and ir is an art still,
the codophiles notwithstanding—will become a lost art. It were well if
‘some of our profession should turn their attention to this branch of prac-
tice, and make it a specialty. The idea so prevalentin this state fifty years
ago, when the mistake about codes was first made, that all the law could
‘be put into one book, that anybody could read it as he ran, thatlawyers
“were unnecessary evils, that it was nothing to toss off a pleading, has
cost the people of this state untold sums of money. One of the
reasons why our judicial force, larger than that of England is unable to
keep up with the litigation of a state which has less than one-fourth
of England’s population, is because of oursystem. Practice under our
miserable code, instead of being simple is most complex and confusing.
Our jury system, in our chief city at least, has been very badly
managed. The majority of our suits in:the same city are tried by
inexperienced men, (that is to say untrained for that work), Tocrown
Par. Pr. Pr. ] Cases CopiFIEp. 711

 

all, instead of putting upon the bench men, who by experience
are able to minimize the difficulties thus hinted at, our local poli

ticians too often select as candidates men—of ability it will be freely
admitted, but men—who have to spend the first few years of their terms
in gaining on the bench the experience they never had at the bar. And
yet we wonder why we have to overwork our Court of Appeals! We
spend time in devising schemes to lessen its labor in correcting errors,
when we ought to spend time in planning a system under which fewer
errors would be committed.

§ 242, A cause of action to recover damages for an injury

arising from, may be joined with one in equity to enjoin the
continuance of, a nuisance.

§ 243. The court may, upon granting an order for the
examination of a plaintiff in an action to recover damages for
personal injuries, direct that the plaintif submit to a physical
examination by one or more surgeons.

COLLECTED FROM TIIE FOLLOWING STATUTES AND DECISIONS
GROUPED UNDER THESE HEADINGS:

References to Statutes. Practice (cont'd.)

Parties. At Trial.

Pleadings. : (1) Objections.
Complaint. (2) Amendment.
Answer. (3) Nonsuit.
Amendment. (4) Direction of Verd.

Practice. (5) Charge,
Presentment of Claims. (6) Verdict.

Joinder of Causes. After Trial.
Before Trial. On Appeal.

References to Statutes.

(1923) As the contest, between the counsel for the elevated railroads and
the lovers of contingent fees,in regard to the physical examinationofa plaintiff
‘tin a suit to recover damages for a personal injury,”’ is still going on, and
the law is to be changed each year in all probability, no more than a refer-
ence to the statutes so far passed is advisable. (Laws of 1893, Chap. 721,
amending § 373 of Code of Civ. Pro., Laws of 1894, Chap. 428.)

This act affords an amusing illustration of the absurdity as well as
danger and expense of statutory codification of common law and
practice. Will it be believed that under this act the court is vested with
the power to order a physical examination of a plaintiff in a libel suit
a crim. con. case, or one for malicious prosecution? When the drafts-
man used, and the legislature adopted, the words “ personal injury,” it
was no doubt meant to refer only to bodily injuries. It was probably
forgotten that some sapient codifier had years before put upon the
statute book a legislative definition of the words. ‘‘Personal injury,’*
712 Cases CopIFIED. [Cuap, IX.

 

is no longer a synonym in law for bodily injury, but ‘includes libel,
slander, criminal conversation, seduction and malicious prosecution;
also an assault, battery, false imprisonment, or other actionable injury
to the person of the plaintiff or of another.” (Code of Civ.
Procedure, § 3343, subdiv.g.) The Legislature of ourstate, by express
enactment vests in acourtthe power, in a suit for crim. con. to compel
a physical examination of the husband !

Are the codophiles blind, that they will not see that the power to
change the fundamental law by craftily-worded, ignorantly, or carelessly
drawn amendments to “‘section so and so of a code,”’ is an invincible ar-
gument against statutory codification? The law as to jury trials in:
equity cases was surreptitiously changed a few years ago in theinterest,
of the elevated railroads by a deftly worded amendment to a section of
the Code, which slipped through the Legislature unnoticed. If the pur-
pose of the act had been expressed in its title the attempt would have,
been detected, exposed and frustrated. There are many similar instances.

(1924) The highway law, the general act for the incorporation of villages,.
and amendments thereto, the special acts for the incorporation of cities, and
the amendments thereto, contain provisions requiring claims against towns,
cities and villages, for damages from negligence to be presented to some
official or board of the corporation. They are too numerous and too dis-
similar to admit of recital here. (See next reference.)

(1925) For an absurd statute barring actions against cities having more
than 50,000 inhabitants unless notice of intention to sue is filed with its law
officer, see Chap. X, Misc. Subj., sud zom., Presentment of Claims. (Laws
1886, Chap. 572.) i

t
Parties.

(1926) Where several connecting carriers join in making a through route
and divide the fares received for passage over the whole route, all are
answerable for the negligence of the|servants of any one. (Champion v.
Bostwick, 18 Wend., 175.)

(1927) A builder of a private building is only answerable to his employer
for its negligent construction. (Mayor v. Cunliffe, 2.N. Y., 165.) ’

 

(1928) The remedy of the holder of commercial paper, to recover damages:
resulting from negligence in its presentment or protest on the part of a
bankto whom it was sent for collection by the bank whom he had employed,
is only against the latter, and not against the latter’s agent. (Mont. Co. Bk,
vw. Alb. City Bl, 7 N. Y., 459.) .

(1929) When two companies combine to run through trains over their roads
selling tickets for continuous passage, proof of delivery of baggage to the

first company is sufficient to sustain an action for its loss against the other.
(Hart v. Rens. & Sar, R. R. Co., 8 N. Y., 37.)

(1930) A person injured through the concurrent negligence of two persons
may sue both in one action. (Colegrovev. VN. V. & N. H.R. R. Ca., 20 N,
Y., 492.)

_ (1931) Master and servant may be joined in an action to recover damages
resulting from the'servant’s negligence. (Phelpsv. Wait, 30 N. V., 78.)
Par. Pi. Pr.] CasEs CoDIFIED. 713

(1932) Where two companies are jointly interested in running a train,
both are liable for the damages occasioned by its negligent management.
(Wylde v. Northern R. R. Co., 53 N. Y., 156.)

(1933) A person injured by the negligence of several persons may sue all,
or one, or any number of them. (Roberts v, Fohnson, 58 N. Y., 613.)

(1934) It is not necessary to join all the lessees of a railroad ina suit for
damages for negligence, even though they have leased it as receivers of a
connectingroad. (Katz v. Smith, 80 NV. Y., 458.)

(1935) Where two persons engage ina joint undertaking, each is responsible
for the other’s negligence in carrying it on. (Stroherv. Elting,97 N. Y., 102.)

(1936) The failure of the several owners of adjoining premises to remove
or support their respective portions of a continuous front wall, left standing
after a fire and evidently unsafe, renders them all responsible for the
damages resulting from its fall, without inquiry as to whose wall it was
which directly produced the damage. (Simmons v. Everson, 124 N. Y., 310.
See Chipman v. Palmer, 77 N. Y., 51, Chap. VI, Damages.)

(1937) The fact that a town’s commissioners of highway were electedatan
election in which votes were given for them by voters in a part of the town
‘afterwards incorporated as a city, aftords no reason why the city should be
joined as party defendant in an action against the town to recover damages
-resulting from the commissioner’s negligence, (Zmébler v. Town of Walkill,
“132 NV. Y., 222.)

leadings.
= = (Complaint.)

(1938) An allegation uf duty in a complaint is of noavail, unless from the
rest of the complaint the facts necessary to raise the duty can be collected.
(City of Buffalo v. Holloway, 7 N. Y., 493-)

(1939) Under a complaint containing a general averment of defendant’s
negligence, evidence of negligence of any kind which will warrant a
recovery is admissible. (Oldfield v. N. Y. & Harlem R. R. Co.,.14 NV. Y., 310.)

(1940) A general averment in a complaint that an injury was sustained
through defendant’s negligence is sutticient. (Zdgertonv. N. Y. & Harlem
R. R. Co., 39 MN. Y., 227.)

(1941) An allegation that plaintiff was free from contributory negligence is
not necessary. (Hackford vu. N. Y. Cent. R. R. Co., 53 WV. Y., 654.)

(1942) It is immaterial that a complaint in an action against a municipality
for negligence claims a less sum than that stated in the claim presented
under its charter toits comptroller. (Afinick v. City of Troy, 83 N. Y., 514.)

(1943) As to election between declaring on contract or in tort, see Chap.
X, Misc. Subj.,.sub. nom., Contr. or Tort. (Collinv. Ad. R. R. Co., 81 N.
¥:, 639. Also-§ 34, of this code.)

(1944) Where in the body of the complaint there are allegations showing an
intention to charge a defendant as an individual, the addition of his official
title after his name does not have the effect to make the suit one against him
in his official capacity, if the word ‘‘as’’ is omitted between uname and.
title. (Bennett v, Whitney, 94 NM. Y., 302.)
714 Casrs CoDIFIED. [Cuap. 1X.

 

(1945) Under a complaint alleging bodily injury as the result of negligence
evidence of the permanency of the injury is admissible. (Hhryott v. The
Mayor, 96 N. Y., 264.)

(1946) An averment ina complaint that an injury was caused by defendant’s
negligence, necessarily implies that there was no contributory negligence
by plaintiff, and a special averment that there was none is not necessary.
(Lee v. Troy Citizens’ Gas L. Co., 98 N. Y., 115.)

(1947) Proof of the amount that the injured person has had to pay another to
do his work is not admissible as an item of damage unless specially averred.
(Gumb vu. Twenty-third St. R. R. Co., 114 M. Y., 411.)

(1948) Loss of earnings is not recoverable as special damages by a married:
woman, injured through negligence, where there is no allegation in the
complaint that her earnings belong to her rather than to her husband.
(Uransky v. Dry Dock, E. B. & BR. R. Co., 118 N. Y., 304.)

(Answer)

(1949) A denial of an allegation that an accident happened to plaintiff
without his fault, is a denial of the accident as well as freedom from fault.
(Wallv. Buffalo Water Works Co., 18 N. Y., 119.)

(1950) A clause in an express receipt, that the carrier will not be liable for
any loss if the claim is not presented within thirty days from the accruing of
the cause of action, is in the nature of a limitation to be availed of by
answer, rather than a condition precedent to be avoided in the complaint.
(Westcott v. Fargo, 61 N. Y., 542.)

(1951) As to sufficiency of denial. (Clark v. Dillon, 97 NV. Y., 370.)

(1952) Where the maintaining of that which without a permit from the
proper authorities would be a nuisance is sought to be justified by a permit,
the permit must be pleaded, and also that its terms were complied with and
the structure properly made and maintained. (CUffordv. Dam, 81 N. Y., 52.)

(1953) An answer, which denies the allegations of a complaint except as
therein admitted, and goes on to allege that due care was used in doinga
certain thing alleged in the complaint to have been negligently done, is to
be construed as admitting the fact that the thing was done, and as denying
only the imputgtion of negligence. (Whitney v. Town of Ticonderoga, 127
NV. Y., 40.)

(1954) It is not necessary in an answer to plead affirmatively that a wrong-
doer was a contractor and not a servant of defendant. (Roemer v. Striker,
142 V. Y., 134.)

(Amendments.)

(1955) A verdict foran amount greater than that stated in the cause of action
as the amount of the damages can be sustained under § 722 of the code
allowing amendments to sustain a judgment. (Schultz v. Third Ave. R. R.
Co., 89 N. Y., 242.)

(1956) As to power of referee. (Smith v. Rathbun, 75 N. Y., 122.)

(1957) Claim of damages may be increased beyon 1 amount claimed when
presented to a municipality’s official. (Zrgott v. The Mayor, 96 N. Y., 264.)

.
Par. Pu. Pr.] CasEs CODIFIED. _ 715

 

(1958) An amendment of a complaint in an action torecover damages for
negligence, adding additional specifications of negligence in producing the
injury complained of, does not change the cause of action. (Davis v. NV. ¥.,
Lake Erie W. R. R. Co., 110 N. Y., 646.)

(1959) As to amending pleadings at trial, izfre, sub nom. At Trial. (Rima
v. Rossie Iron Works, 120 N. Y., 433.)

Practice. :
(Presentment of Claims.)

(1960) A claim for damages resulting from a negligent excavation in astreet
under contract with a department of a city government is not within an act
requiring claims ‘‘ growing out of the department”’ to be presented to that
department. (Brussov. City of Buff, 90 N. Y., 679.)

The soil in departments does not seem to be as fertile for claims as
that on bridges. See note to the statute in regard to claims ‘‘ growing
out of bridges,’’ Chap. II, Tit. IIT.

(1961) The amount of damages claimed in the statement of claim presented
to the comptroller under Laws of 1873, chap. 335, 2 105, is not an essential
part of the claim required to be so presented. (Reed v. The Mayor &c. of
N. Y., 97 N. ¥., 620.)

(1962) When the charter of a municipal corporation provides that nuaction
shall be brought against it until after a presentment of the claim to its
common council, it means what it says. (Reining v. City of Buffalo, 102 N.
¥., 308 )-

(1963) A statute prescribing that no costs shall be inserted in any judgment
against municipal corporations, where the claim on which it is founded is
not presented to the chief fiscal officer of the corporation before suit
brought, does not apply to claims for damages from negligence. ( Taylor vw
City of Cohoes, 105 N. Y., 54. Gage v. Village of Hornelisville, 106 NV. Y., 667.)

(1964) A provision in a municipal charter, declaring that no action shall
be maintained against the municipality unless it appears in the complaint
that the claim has been presented to one of its officers for adjustment, does
not apply to actions ex delicto. (Harrigan v. City of Brooklyn, 119 N. Y., 156.
Cavin v. City of Brooklyn, 119 N. Y., 630.)

(1965) As to filing notice of intention tosue. (Curry v. City of Buff., 135
N. Y., 366.) .

See Chap. X, sub. nom., same heading.

(foinder of Causes.)

(1966) In an action for maintaining a nuisance in constructing and operating
a steam railroad in a public highway without authority, brought by the
owner of lands injuriously affected by the road and where property rights
are invaded thereby, in which plaintiff demands an injunction and damages,
he may also join a cause of action for a personal injury, sustained by his
being thrown from his wagon while driving along the highway on which the
railroad was constructed, in consequence of his horse being frightened by a
passing train and escaping from his control. (Lamming v. Galusha, 135 M.

Y., 239-)
‘716 Cass CopirirD. [Crav, IX.

 

(Before Trial.) ;

(1967) A suit may be prosecuted by a married woman in her maiden name
if no objection to it is taken in the answer. (7raver v. Eighth Ave. RR.
Co., 4 466. C. AL D., 422.

(1968) Question of practice in an action ta recover damages for diversion
of stream by construction of deft’s road through pls farm, (Weed vu MW.
¥Y. & Harlem BR, R. Co., 29 N. ¥., 616.)

(1969) Question as to inspection of contract in action where pl, while
walking in street, was injured by deft's negligently erected bill-board being

‘blown against him, (S¢ilwell uv, Priest, 85 N. ¥., 649.)

(1970) An action by a stockholder ofa corporation against its directors to

‘call them to account for damages sustained by the corporation by reason of
various acts of negligence and misconduct is an equitable action, in which

‘they are not entitled as of right to trial by jury. (Brinckerhoff. Bostwick,
1o5 MV. ¥., 567.)

(1971) There is no power in the court to compel the plaintifTin a suit to
‘recover damages for a physical injury to submit to a surgical examination
‘ofhis person. (MeQuigan v. Del., Lack. & WR. B®, Co., 129 N. Y., 50.)

(1972) Chap. 721 of Laws of 1893, amending § 873 of the Code of Procedure,
does not confer upon the court the power to require a plaintiff to submit to

‘a physical examination, except in connection with, and as a part of, an oral
examination as a party before trial. (Lyon v. Manhattan Railway Co., 142
N. Y., 298.)

(At Trial.)
(1) Objections,

(1973) A general objection to a question to a physician, whether he can
state the probable result of an injury, does not raise the point that it calls for
his opinion as to possible results. (Briant v, Trimmer, 47 N. Y., 96.)

(1974) When a medical expert is asked to give his opinion, ‘from what he
has learned of a case in all ways,”’ as to whether “a certain trouble from an
injury is likely to improve,’”? an objection to the question which ig only
general, and which fails to point out that it calls for an opinion based upon
knowledge not solely derived from the facts in evidence, and also for a
statement of possible consequences is notavailable on appeal. (Wadlacev,
Vacuum Oil Co., 128 NV. ¥., 579.)

(2) Amendment.

(1975) If it appears at the trial of an action that the plaintiff is an infant, a
nonsuit is not neccessary, but the court can then and there appoint a guardian
nunc pro tun@and amend the pleadings accordingly, (Asa v. Nossie Iron

Works, 120 N. Y., 433-)
(3) Nonsuit.

(1976) An opinion of a plaintiff's witness and a statement ina defendant's
answer read in evidence by plaintifl, thatan injury was caused by the willful
act of the defendant’s servant, will not justify a nonsuit. (Mott v. Con.
sumer’s Ice Co., 73 N. Y., 543.)

(1977) An action brought by a person as guardian of an infant under
fourtecn years of age upon a right of action in favor of such infant is well
brought. (Spooner v. Del, L, & IV. RR. Co. 115 NM. Y¥., 22.)
Par. Pr. Pr.] Cases CopIFIeD. 717

 

(1978) In an action to recover damages for negligence, to justify anonsuit
the facts must be so clear against the plaintiff that there is no room for
doubt. (Hart v. Hudson Riv. Bridge Co., 80 N. Y., 622.)

(1979) In the absence of direct proof as to howa person walked off the end
of a drawbridge, if it appears that a stop-gate was lowered to within two and
a half feet of the floor, no recovery can be had. (/d., 84 WV. Y., 56.)

(1980) If the only thing on which a plaintiff relies to meet the burden of
proof as to contributory negligence is intoxication he should be nonsuited.
(Tolman v. Syr., Bing. & N.Y. R. R. Co., 98 N. Y., 198.)

(1981) The fact that an injured person in locating the spot where the
accident occurred makes some inconsistent statements, one of which, if true,
shows that the defendant is not liable, does not require a nonsuit. (Adlison
wu. Village of Middletown, 101 NV. Y., 667.)

(1982) A motion to dismiss a complaint, on the ground that no negligence
of the defendant is proved, is specific enough to raise any question as to
negligence on his part. (Byrnes v. N.Y., Lake Erie & W.R.R. Co., 13.
¥., 251.)

(1983) In an action to recover damages for injuries sustained by an infant,
the point that its parents were negligent is not presented by a motion for a
nonsuit on the ground of contributory negligence. (Stone v. Dry Dock, Ey
B.& B. RR. Co., ug M. Y., 104.)

(1984) When the circumstances point as much:to the negligence of the
deceased as to its absence, or point in neither direction, a nonsuit should
be granted. ( Wiwirowskiv. Lake Shore & M.S. R. R. Co., 124 4. Y., 420.)

For other cases as to nonsuit see Chap. VII, Evid., and Chap, VIII, Causes,
sub nom., Nonsuit ; also Chap. V, Defenses. 7

(4) Direction of Verdict.

(1985) Where the defendant’s explanation of an accident, which, if true,
texculpates it from the charge of negligence, is not improbable, is proved,
by adisinterested witness, and.is uncontradicted, it is the duty of the court
to direct a verdict for the defendant. (Unger v. Forly-second St. R. R. Co.,

51M. Y., 497.)
(5) Charge.

(1986) In an action by a minor to recover damages sustained through
another’s negligence, the erroneous admission of evidence of what the
minor has earned is cured by a charge that as the loss of earnings had been
recovered by the parent, they could not be by the child. (raver v. Eighth
Ave. R. R. Co., 4 Abb. C. A. D., 422.)

(1987) It is error to charge that negligence of a plaintiff, to prevent a
recovery must have directly contributed to the injury. (Button v. Hudson
River R. R. Co. 18 NV. Y., 248.)

(1988) Where the liability of a defendant turns on the question of his
ownership of a colliding vehicle, it is not error to refuse to charge upon the
question whether the driver thereof was his servant. (Sloane v. Elmer, 64
NV. Y., 201.)

)
718 Cases CODIFIED. [Cuae, IX.

 

(1989) It is not error for a court to express ifs opinion that a railroad com-
pany is guilty of negligence in driving its train through a city faster than
the rate allowed by ordinance, where the question is left to the jury to-
decide as one of fact. (Massoth v. Del. & Hud. C. Co., 64 NV. Y., 524.)

(1990) It is error to leave to a jury to say what signals of an approaching
train should be given in a particular case to a traveller at a crossing. (Dyer
v. Erie R. Co., 71 N. Y., 228.)

(1991) It is error to charge that ‘*no juror ought to remain entirely firm
in his own conviction one way or another until he has made up his mind
beyond all question that he is necessarily right and the others necessarily
wrong.’’ (Cranstonv. N.Y. C.& H.R. R. R. Co., 103 NV. Y., 614.)

(1992) In an action to recover damages received while boarding a car, it is
error to leave to the jury to say whether the driver of another car of the
defendant which happened to be passing did his whole duty, in the absence
of proof that he managed it in any other way than the circumstances
required, (Black v. Brooklyn City R. R. Co., 108 N. Y., 640.)

(1993) It is not an error to charge that failure to comply with a statutory
requirement is prima facie evidence of negligence, where the circumstances
of the case are submitted to the jury so as to leave to them the question as
one of fact. (McRickard v. Flint, 114 NV. Y., 222.)

(1994) It is erroneous to charge that error of judgment is not negligence,
without the qualification that the judgment exercised must be that of a man
of ordinary prudence. (Hoyt v. NV. Y., Lake Erie & W. R. R. Co., 18M. Y.,

399: )

(1995) If a party is entitled to recover nominal damages it is not error to
refuse to charge that he is not entitled to recover amy damages. (Baker v,
Manhattan R. Co., 118 NM. Y., 533-)

(1996) When a servant of a railroad company is injured ina collision
between two cars, on one of which he is at work, it being stationary, it is
error to refuse to charge that if the cause of the accident was the act of
another servant, in having the switch opened and letting the other carcome
in contact with that car, he knowing that the plaintiff had gone to the car to
repair it, the plaintiff can not recover. (Corcoran v. Del., L.& W. R. R. Co.,
126 V. Y., 673.)

(1997) Where there is no issue as to whether a bell was rung or whistle
blown at a créssing, it is not error for the court to refuse to charge that
under the repealing act, (chap. 593, Laws of 1886,) there was no obligation to
make such signals on approaching a crossing. (Kanev. NV. Y.,N.. & H.
R. R. Co., 132 NM. Y., 160.)

See Chap. If, III and IV for the main questions which arise on charges.

(6) Verdict.

(1998) A jury may change its verdict upon reassembling after having
separated upon agreeing on a sealed verdict. (Warner v. N. Y. Cent. R. R.
Co., 52 NV. Y., 437.)
Par. PL. Pr. | Cases CopIFiED. 719

 

(After Trial, )

(1999) When a guest loses gold coin he is entitled to a judgment for gold
against the innkeeper. (Kellogg v. Sweeney, 46 N. Y., 291.)

(2000) A judgment in a negligence suit upon a verdict rendered by «
sheriff's jury upon assessment of damages where the only service of the
summons on the defendant was by publication {s not valid. (Bartlett v.
McNeil, 60 N. Y., 53.)

(2001) If in a case where a plaintiff may sue on contract or in tort to
recover damages for negligence, he elects to sue on contract, he can not be
arrested on a judgment against him'for costs. (Catlin v. Adir. Co., 81 N.
Y., 639.)

(2002) As to case upon question of amountof interest on verdict in a death
case, where death occurred prior to change of rate of interest, and the
trial after. (Salter v. Utica & Bi, Riv, R. R. Co., 86 N. Y., 401.)

(2003) Upon enteringjudgment on a verdict for a negligent killing, interest
must under the Death Act, be added to the verdict and inserted in the judg-
ment, even though the jury included interest as an item of damage in their
verdict. (Manning v. Port Henry lron Ore Co., 91 N. Y., 664.)

(2004) Money paid into court, as a tender in satisfaction of damages in an.
action of tort, belongs to the plaintiff even though unaccepted by him, and
though on the trial the verdict is in favor of the defendant. (7aylor v.
Brooklyn El. R. R. Co., 119 N. Y., 561.)

(2005) Controversy as to an attorney’s lien—settlement by deft with plft
subject to the lien, after judgment on verdict for negligently causing
death. (Lee v. Vacuum Oil Co., 126 NV. Y., 579.)

(20c6) Where anassessment of damages has been had pursuant toa judg-
ment absolute against defendant, the only way to get rid of an improper
award of damages is by motion to set it aside. (Bossout v. Rome, W. & Og.
R. R. Co., 131 NM. Y., 37.)

(On Appeal.)

(2007) Where the evidence as to whether either party is negligent is con-
tradictory, a non-suit can not be sustained on the ground that the weight of
evidence is with the defendant. (Cooku, M. Y. Cent. R. R. Co., 1 Abb. C. A.
D., 432-)

(2008) The words ‘“‘ with great force and violence ’’ do not import that an
act found to be negligent was willful. (Metcalf v. Baker, 57 N. Y., 662.)

(2009) Where a plaintiff recovers an award cf less than $500, for damages
for negligence, to which is added interest, which makes his total award exceed
such sum, the judgment entered thereon is appealable to the Court of
Appeals. (Gravillev. N. Y.C.& H. R. R. R. Co., 104 NV. Y., 674.)

(2010) An erroneous exclusion of testimony on across examination which
only goes to the credibility of the witness is not ground for reversal, where
his testimony in chief was immaterial. (7¢ets v. Vill. of Middletown, 106 NV.
Y., 651.)
720 Cases CopiFIEp. [Cuap. IX.

(2011) Where a jury has not been misled by an irrelevant charge, there is
no ground of reversal. (Bishop v. Village of Goshen, 120 N. Y., 337-)

(2012) Where a plaintiff seeks to recover upon two grounds, one of negli-
gence for breach of a general duty, the other for breach of a special contract,
and it is left to ayury to find a verdict on either ground, and it does not
appear from the record on which ground a verdict for the plaintiff was
based, the judgment must be reversed unless both grounds can be
sustained. (McCaldin v. Parke, 142 N. Y., 564.)

(2013) Where a general term reversed a judgment in plaintiffs favor upon
a question of fact, its order was affirmed in the Court of Appeals upon the
‘ground that no error of law had been committed at the trial, and there was
no ground for a recovery. (Boyle v. N. Y., Lake Erie & W.R. R. Co.,
115 WV. Y., 636.)

(2014) The court will not reverse a judgment on a verdict for nominal

damages merely because a non-suit should have been granted. (Gray v.
Second Ave. R. R. Co., 65 M. Y., 561.)

Cross REFERENCES,

See Chap. V, Defenses; Chap. VI, Damages; Chap. VII,
Evidence ; Chap. X, Miscel. Subj.
Misc. Sugj. ] Cases CopIFIED. — S13 od 721

CHAPTER X.

MISCELLANEOUS SUBJECTS.
Abatement. Presentment of Claims.
Assignability, Recovery over.
Constitutional Questions. Res Adjudicata.
Contract or Tort. Satisfaction.
Injunction, Statutory Causes.
Jurisdiction. Civil Dam. Act.
Notice. Death Act.
Nuisance. Other Acts.
Ordinances. Trespassers.
Payment. Miscellaneous.

Abatement.

(2015) Abatement of causes of action by death may be prevented by
agreement as well as by statute, (Coxrv. MV. Y. Cent. & H.R. R. R. Co.,
63 MN. Y., 414.)

(2016) A cause of action in favor of a husband for loss of services of his
wife through another’s negligence survives the husband’s death. (Cregiz
v. Brooklyn Crosstown R. R. Co., 75 NV. Y., 192.)

(2017) A right to recover damages for loss of a wife’s society does not
survive the husband’s death. (/¢., 83 WV. Y., 595. See also Chap. VI, Dam.
ages, sub nom., Loss of Services.)

(2018) The cause of action given by the Death Act (Laws of 1847, chap.
450, Code § 1902) in favor of next of kin abates upon the death of the
wrong-doer. (Hegerich v. Keddie, 99 N. Y., 258.)

(2019) The causes of action created by the Civil Damage Act abate upon
the death of the defendant. (Moriorty v. Bartlett, 99 N. Y., 651.)

(2020) Section 764 of the Code, providing that an action shall not abate
after verdict, does not apply where the judgment is reversed. (Stringham
v. Stewart, 22 Abb. N. C., 281.)

(2021) An order of the General Term, reversing a judgment on a nonsuit
and ordering a new trial, is not a decision, which, under § 764 of the Code,
operates to prevent the abatement of an action to recover damages tor
personal injury. (Corbett v. Twenty-third St. R’way Co., 114 NV. Y., 579.)

Assignability.

-(2022) The interest of the next of kin in the damages recoverable under
the Death Act is assignable. (Quinn v. Moore, 15 N. Y., 432.)
, (2023) A cause of action for injury to personal property through negli-
gence is assignable. (Fulton Hire Ins. Co. v. Baldwin, 37 N. Y., 648.)

(2024) The rule as to non-assignability of interest in a claim for damages
thas been superseded as to attorneys by § 66 of Code. (Coughlin v. N. Y.
Cent. H. R. R. R. Co., 71 N. Y., 443. See also Lee v. Vacuum Oil Co.,
126 WV. Y., 579.)
722 Cases CopiFIED. [Cuap. X.

 

Constitutional Questions.

(2025) An act of the Legislature relieving a city from liability in damages
for any nonfeasance or misfeasance of its officers is constitutional. (Gray
v. City of Brooklyn, 2 Abb. C. A. D., 267.)

(2026) The Civil Damage Act, (Laws of 1873, chap. 646), is constitutional.
(Bertnolf v. O' Reilly, 74 N. Y., 509.)

(2027) An act of the Legislature authorizing the Board of Claims to make
an award on a claim, which had not been filed in the proper office within
the time within which suits as to such matters between private citizens
must be brought, is unconstitutional. (Gates v. The State, 128 WN. Y., 221.)

Contract or Tort.

(2028) An action against a common carrier for loss of passenger’s baggage
is an action arising on contract. (Campbell v. Perkins, 8 N. Y., 430.)

(2029) The liability of a common carrier for non-delivery of goods
intrusted to him for carriage, may be enforced by an action either on con-
tract or in tort at the option of the pleader. (Catlin v. Adirondack Co., 81
XV. Y., 639.)

(2030) It is unnecessary to decide whether an action to recover damages
resulting from another’s negligence is on contract or in tort, as all such
actions pre-suppose some obligation or duty violated. (Nolton v. Western
R. R. Co., 15 M. Y., 444.)

(2031) The gravamen of an action against a common carrier to recover
damages for a personal injury is the breach of the duty imposed by law
upon common carriers of passengers to carry them as safely as -human skill

or foresight can accomplish, and it exists independently of contract. (Carroll
v, Staten Island R. R. Co., 58 NV. Y., 126.)

(2032) An action against a municipality to recover damages for negli-
gence is not an action on a contract, obligation or liability express or
implied. (McGaffin v. City of Cohoes, 74 N. Y., 387.)

(2033) An action to recover damages under the Death Act is an action
in tort. (Kobinson vu. Oceanic St. Mav. Co., 112 N. Y., 315.)

Action against carrier for negligently causing a passenger’s death.
‘That this is a cause of action for a tort is too clear for reasonable
dispute ’’ per Earl J. at p. 321.

(2034) The gist of an action to recover damages for giving 2 poisonous
medicine in mistake is negligence. (Al/an v. State S. S. Co., 132 N. Y., 91-)

Injunction.

(2035) An injunction will not lie to restrain the doing of a thing on the
ground that it is going to be negligently done, and damage will ensue.
(Paine v. Village of Delhi, 116 N. Y., 224.)

(2036) A municipal corporation may be enjoined from continuing to main.
tain an outlet to a sewer, so negligently located as to cast sewage upon
adjoining premises. (Stoddard v. Village of Saratoga Springs, 127 N. Y., 261.)

See Chap. IX, Practice, sub. xom., Joinder.
Misc. Susy. ] Cases CoprFtep. 723

 

Jurisdiction.
(2037) The waters of Long Island Sound to the centre line are within the
jurisdiction of this state. (Wahler v. Norwich & N. Y. Tr. Co., 35 NV. Y., 352-)

(2038) Question as to jurisdiction of City Court of Brooklyn. (Landers v.
Staten Island R. R. Co., §3 NV. Y., 450.)

(2039) The cause of action given by the Death Act of this state is not,
in the case of a maritime tort, one of exclusive admiralty jurisdiction.
(Dougan v. Champlain Transp. Co., 56 NV. Y., 1.)

(2040) The Act of Congress limiting the liability of ship-owners to the
value of the ship and freight does not deprive the courts of this state af
jurisdiction to try a cause of maritime tort. (/d.)

(2041) State ¢ourts have jurisdiction over actions for negligence on
navigable waters. (Baird v. Daly, 57 N. Y., 236.)

(2042) A surrogate, on issuing letters of administration for the purpose
of suit under the Death Act may without statutory authority limit in them
the administrator’s power to bringing suit only. (Martin v. Dry Dock, E.
B.& B. R. R. Co., 92 N. Y., 70.)

(2043) Since the enactment of § 1780 of the Code of Civil Procedure, our
courts have no jurisdiction of an action by a non-resident against a foreign
corporation to recover damages resulting from negligence, where the cause
of action sounds in tort and arose without the State, (Robinson v. Oceanic
St. Mav. Co., 112 MV. Y., 315.)

(2044) Notwithstanding the provisions of § 263 of the Code of Civil Pro-
cedure, the Superior Court of the City of New York continues to have
jurisdiction of an action by a resident of this state against a foreign corpor-
ation, the provisions of that section, in so far as they seek to restrict =
jurisdiction, being unconstitutional. (Alyn v. Cent, R. R. of N. F.,

NV. Y., 439-)

(2045) A claim for damages which had been mailed to the canal
appraisers but not received, and which had never been filed in their office,
was not included in the transfer to the Board of Claims of claims pending
before the Board of Canal Appraisers. (Gates v. State of New York, 128 NV.
Y., 221.)

For jurisdiction to order physical examination of plaintiff see Chap. IX,
Practice.

For jurisdiction of Board of Claims see Chap. II, Art. I, The State.
Notice. (Onder Statutes.)

(2046) Notice to a seller of liquor not to sell or give liquor is now a con-
dition precedent toa right of action under the Civil Damage Act. (Zxcise
Law of 1892, chap. 401, § 40, also Laws of 1892, chap. 403, § 2.)

(2047) Notice to carrier that his servant has been intoxicated while in
active service is a condition precedent to an action for damages, so far as
it is based on the statute. (Zxcise Law of 1892, § 39-)

(2048) The City of Cohoes has obtained passage of an act preventing the

application of the doctrine of constructive notice in actions against it.
(McNally v. City of Cohoes, 127 N. Y., 350.)
“124 Cases CopiFIED. [Cuap. X.

 

(Zo Employees.)

(2049) The fact that laborers in the employ of a railroad company passed
a place in a fence within a few days after ithad gotten out of repair will
not justify a finding of notice to the company of the defect. (Murray v. N.
Y. Cent. R. R. Co., 3 Abb. C. A. D., 339-)

(2050) Report by a policeman in the usual course according to a city
ordinance, and police regulations to his superior officer, of an unsafe condi-
tion of asidewalk, is sufficient to charge the municipality with notice
thereof. (Twogoodv. The Mayor &c. of N. Y¥., 102 N. ¥., 216.)

(2051) If the trustees of a village, who by statute are made the commis-
sioners of highways for the village, appoint another person as street com-
missioner to superintend and examine the streets, notice to him of a defect
is notice to the corporation. (McSherry v. Trustees of Vill. of Canandaigua,
129 WV. Y., 612.)

(Constructive Notice.)

(2052) Existence of a defect ina highway for two weeks is sufficient to
authorize an inference that the public authorities had notice thereof. (Regua
wu. City of Rochester, 45 N. Y., 129.)

(2053) Two months. (Diveny v. City of Elmira, 51 N. Y., 506.)

(2054) Four or five days are sufficient. (Zoddv. City of Troy, 61 N. Y.,
507,—number of days given in report below, 61 Bard.)

See also Chap. VII, Evid., sud. zom., Notive. Other cases, involving
notice or knowledge as ingredients of negligence, both causative and con-
tributory, will be found in Chapters II and III. See also Chap. V.

Nuisance.
(2055) Where an injury results from a nuisance in a highway, it is imma-

terial whether negligence caused the nuisance. (Congreve v Morgan, 18 N.
¥., 84.)

_ (2056) To float logs down rivers is not unlawful. (Zown of P. v, Loveless,
72 N. Y., 211.) .

(2057) Keeping gunpowder on one’s own premises, in a place or under
circumstances where it would be likely in case of explosion to injure neigh-
boring dwellings, isa nuisance. (Heeg v, Licht, 80 NV. Y., 579.)

For other cases in Nuisance see Chaps. II and III.

. .
Ordinances.

(2058) Violation of a city ordinance is not alone evidence of carelessness.
sufficient to charge a defendant with the consequences of an accident which
would not have occurred except for such violation. (Brown v. Buff. & St.
Line R. R. Co., 22 N. ¥., 191.)

(2059) The last case said to stand on doubtful ground as to ordinances.
{ Fetter v. N. Y. & Har. R. R. Co., 2 Abb. C. A. D., 488.)

(2060) Violation of a city ordinance is evidence of negligence, (Benieee
uv. N.Y. Cent. R. R. Co., 14 Abb, Pr, N. S., 29.)
Misc. Susy. ] Cases CoDIFIED. 725

 

(2061) An ordinance limiting the speed of railroad trains at certain places
‘in a city is immaterial where the accident occurs at another place. (Calligan
ve N.Y. C.& H.R. RR. Co. 59 N. Y., 651.)

(2062) A city ordinance requiring a flagman to be stationed at every street
crossing is admissible against a railroad company, which, though not owning
the railroad, or having anything to do with employing the flagman, runs
its trains over the road. (A&Grathv. N. V.C.& H.R. R. R. Co., 63 N. Y.,
522.)

(2063) It is an open question in this State whether the violation of a
municipal ordinance is, upon the question of negligence, to be regarded like
a violation of astatute. (Massoth v. Del. & Hud. C. Co.,64 N. V., 524.)

(2064) The running of a train in acity faster than the rate allowed by the
city’s ordinance is evidence of negligence. (Wasmer v. Del., L. & W. R. R.
Co., 80 N. Y., 212.)

(2065) Violation of a city ordinance is not by itself negligence. (Knupfle
vu. Knickerbocker Ice Co., 84 N. Y., 488.)

(2066) The failure to obey an ordinance as to removal of ice and snow
from a sidewalk, does not subject a householder to liability to a passer-by
for damages from slipping thereon. (Moore v. Gadsden, 93 N. Y.,12. See

City of Roch. v. Campbell, 123 N. Y.,-405, infra Recovery over.)

(2067) When the issue is whether a permitted obstruction in a street
exceeds the lawful limits of the permit, and is therefore a nuisance, the
question must ‘be decided by an appeal to the ordinance, rather than to a
regulation of a department of the municipality. (Rehberg vu. The Maya &c.
of N. ¥., 99 NV. ¥., 652.)

(2068) In an action against a municipal corporation for damages through
neglect to keep its sidewalks clear of ice and snow, its ordinance requiring
householders to remove ice and snow from their sidewalks is notimmaterial
to show that the municipal authorities are aware that accumulations of ice
and snow on sidewalks are dangerous. (Nor is it necessary, adds the
court.) (Pomfrey v. Vill. of Saratoga Sp., 104 N. Y., 459.)

Payment. (See Satisfaction.)

Presentment of Claims.

(2069) A suit against a village must be preceded by a filing of the claim
with the village clerk, or its presentation to the Board of Trustees within one
year from the time it accrued. (Laws of 1870, chap. 291, § 9, as am, by Laws
of 1889, chap. 440. The special charter, if any, of a particular village should
be examined.) —

(2070) A suit against a town must be preceded by the presentation of a
verified statement of the cause of action to the supervisor of the town
within six months after it accrued, and can not be brought until fifteen days
after such presentation. (Zhe Highway Law of 1890, § 16.)

(2071) A suit against a city must in most cases be preceded by a presen-
tation of the claim to its financial or other officer, and a request for its
‘adjustment. (Consult the various charters. As to New York City, see Con-
solidation Act of 1882, § 1104.)
“726 Cases CopIFIep. [Cuar. X.

 

(2072) ‘*No action against the Mayor, Aldermen and Commonalty of any
city in this state Rasang fifty thousand inhabitants or over, for damages for
personal injuries,” shall be maintained ‘* unless notice of the intention to
commence such action and of the time and place at which the injuries were
received shall have been filed with the counsel to the corporation or other
proper law officer thereof, within six months after such cause of action shall
have accrued.”” (Laws of 1886, chap. 572. Curry v. City of Buff, 135 N.Y.,
366.)

This act is a specimen of the tricky legislation, which is so prevalent,
and which will become ‘the favorite method of winning law-suits, if,
enamoured of codes, we shall ever turn our common law into statute
law. It is said that it was slipped through the Legislature in order to
enable the corporation counsel's office in a certain city ‘‘to make a
record’ of success in the defense of negligence suits. The way the act
was indexed in the Session Laws helped to conceal its existence from
the profession, and the result was a large crop of non-suits. To require
any intending litigant to announce an intention to sue otherwise than
by suit is absurd. To require him to announce that intention to the
law officer of a city, when he must also file his claim with its financial
officer is laughable. The inspiration of this senseless piece of legislation
is betrayed by the use of the words ‘‘ Mayor, Aldermen and Common-
alty.” There is, it is believed, but one city in this state against which
actions are maintained under any such corporate name.

See also Chap. IX, Practice, se’. mom., same heading; also Chap. V,
Defenses, sab, nom , Stat. of Lim.

Recovery Over.

(2073) A town, mulcted in damages for neglect of its highway commis-
sioners, may recover over from them the amount of the judgment therefor.
(Mighway Law, § 17.)

(2074) A municipality, which fails to require in its contract with a con-
tractor for a public improvement that he shall properly guard the same to
prevent injuries to passers-by, cannot recover over from him the damages it
has had to pay a passer-by for injuries sustained through the absence of a
guard. (City of Buff. v. Holloway, 7 N. Y., 493.)

(2075) An insurer, who has paid a shipper’s loss, can not recover over
from the carrier, 1f the loss was included in an exemption clause in the
bill of ladin®. (dere. Ins. Co. v, Calebs, 20 N. Y., 173.)

(2076) Plaintiff, mulcted in damages for defect in highway between car-
tracks, nonsuited because of certain clauses in its contract with defendant.
(City of Bhkiyn v. Bklyn City R. R. Co., 47 N. Y., 475.)

(2077) A reservation, in a license to lay tracks, of the right to revoke it
on the licensee’s failure to comply with an agreement to keep the streetsafe
for passage, does not affect the right of the municipality to recover damages
resulting from the licensee's failure to keep the agreement. (Mayor v. Troy
& Rens. R. R, Co., 49 N. Y., 657.)
Misc. Susy. ] Cases CopIFIED. 727

 

(#78) An insurance company, which has paid a loss insured against, is
subrogated to the right of action of the insured against a person whose
negligence caused the loss. (Arctic Fire Ins. Co, v. Austin, 69 N. Y., 470.)

(2079) Where a carrier negligently makes out a bill of lading to the wrong
person, one who has been mulcted in damages at the suit of another who
has made advances thereon, may recover over from the carrier. (Farmers?
& M. Nat. Bk, v. Erie R. Co., 72 N. Y., 188.)

(2080) A municipality does not, by entering into a contract for the erec-
tion of a building, thereby give a license to violate its ordinances as to
placing obstructions on its streets, so as to prevent a recovery over from the
contractor for damages recovered from it by a passer-by, (City of Roch. v.
Montgomery, 72 N. Y., 65.)

(2081) A case of recovery over uf damages resulting to a municipality by
reason of an improperly-guarded excavation. (Vill. of P. Ferv. v. First N.
B. of P. Ferv., 96 N. Y., 550.)

(2082) An insurance company, which has paid the owner for property
destroyed by fire due to ariother’s negligence, may recover from the latter
the amount it has been obliged to pay. (Conn. Fire Ins. Co. v. Erie R. Co.,
73 NV. ¥., 399.)

(2083) A municipality, mulcted in damages at the suit of a passer-by,
occasioned by its neglect to keep its sidewalk in repair, can not recover
over from the adjoining lot-owner, even though by the municipality’s
charter the duty is imposed upon him to keep the sidewalk in front of his
lotin repair. (City of Rochester v. Campbell, 123 N. V., 405.)

(2084) The rule as to recovery over by a person who has been cast in
judgment for the negligence of another applies to judgments of the United
States courts as well as our own. (Oceanic St. Nav. Co.v. Compania Tr. Esp.,
134 WV. W., 461.)

As to admissibility of judgment roll in prior action, see Chap. VII, Evid.,
sub, nom., that heading.

Res Adjudicata.

(2085) In an action to recover damages for a flooding of land, a judg-
ment recovered in a former action for prior damages from a prior flooding
due to the same cause is res adjudicata as to the defendant’s liability. (Plate
w. N.Y. Cent. R. R. Co., 37 N. Y., 472.)

(2086) An action against a physician to recover damages for malpractice
is barred by a judgment in favor of the physician against the plaintiff on a
complaint to recover for the value of the services which constituted the
alleged malpractice, even though recovered in a justice’s court on default
after the action for malpractice had been begun. (Gates v. Preston, 41 N.Y.,
113.)

(2087) Where a person has agreed to save another harmless from results
of his negligence, a judgment roll in an action against the former for dam-
ages resulting from such negligence, is conclusive against the latter, where
he has been given opportunity to defend the prior action. (Mayor v. Troy
& Lans. R, R. Co., 49 N. ¥., 657.)
728 Casgs CoDIFIED. [Cuap. X.

 

(2088) A judgment against a negligent person is, in an action by him for
recovery over against another, only conclusive on the latter as to matters.
which might have been urged against its recovery. (City of Rochester v.
Montgomery, 72 N. Y., 65.)

(2089) A judgment in favor of a person in asuit brought by him to recover
the value of his services is, though on default, res adjudicata upon the ques-
tion whether he was negligent in their rendition. (Blair v. Bartlett, 75 N.

Y., 150.)

(2090) Where the negligence of a bank in the collection of a foreign draft
has resulted in damages to the holder, the judgment of a court of competent
jurisdiction, in an action in another state by the holder against the drawer,
that the latter is discharged, is conclusive in this state against the bank as.
to the amount of damages resulting from its negligence. (First Wat. Bk. v.
Fourth Nat, Bk., 89 N. Y., 412.) .

(2091) A judgment against a plaintiff, upon the ground that he had
neglected to perform some preliminary act necessary to perfect his cause
of action, such as giving a notice, is not a bar to a second action begun
after the performance of such act. (Rose v. Hawley, 141 N. Y., 366.)

As to admissibility of judgment rolls see last heading,

Satisfaction.
_ (2092) ‘* The rule is that a party receiving injury from the wrongful acts of
others is entitled to but one satisfaction, and that an accord and satis-
faction by, or a release, or other discharge by the voluntary act of the
party injured, of one of two or more joint tort feasors, is a discharge
ofall.” (Barrett v. Third Ave. R. R. Co., 45 N. Y., 628. Per Allen ¥. at p.
635.)

Note the force of the word ‘joint’? in connection with the decision

in Atlantic Dock case, cited in Chap. V, sud. nom., Payment.

(2093) Recovery by the injured person in his lifetime of his damages from
a wrong-doer is a bar to an action against that wrong-doer under the Death
Act. (Littlewood v. The Mayor, 89 N. Y., 24. See note, szpra, p. 258.)

(2094) A release upon a settlement of a claim for damages to the next of
kin for negligently causing the death of another, given in advance of the
issuance of letters of administration by a person who is not one of the next
of kin, is not a bar to an action to recover such damages, even though the
person who signed the release becomes one of the administrators, and the
money so paid was used by the next of kin for the funeral expenses, (Studer
v. McEntee, 142 N. Y., 200.)

See Chap. V, Defenses, sud. xom., Payment,

Statutory Causes of Action,
(Civil Damage Act.)
‘(2095) Husbands, wives, children, parents, guardians, employers, or other

persons, who are injured in person, property or means ot support by any
intoxicated person or in consequence of the intoxication of any person may
Misc. Susy. ] Cases CopIFIED. 729

 

recover all the damages sustained, and exemplary damages in proper cases,
against the person who by sale or gift of intoxicating liquor, has caused the
intoxication in whole or in part, and also against the owner of the premises
where it is sold if he rents them or permits their occupation with knowledge
that intoxicating liquor is to be sold therein. (Laws of 1873, chap. 646, ‘8 I,
—virtually nullified by acts requiring notice not to sell as a condition
precedent, see Notice, supra.)

(2096) Under the Civil Damage Act, if an agent, who lets premises for the
owner, knows that liquor is to be sold on them, his knowledge is imputable
tothe owner. (Hallv. Germain, 131 NV. Y., 536.)

A list of the cases under this act will be found in Part III, (sud. 2om.,
Intoxication.) In this Part they have been classified according to the
rulings made in them.

(Death Act.)

(2097) ‘‘ The executor or administrator of a decedent who has left him or
her surviving a husband, wife or next of kin,.. may maintain an action to
recover damages for a wrongful act, neglect or default by which the
-decedent’s death was caused, against a natural person who, ora corporation
which, would have been liable to an action in favor of the decedent by
reason thereof, if death had not ensued. Such an action must be commenced.
within two years.’’ (Code of Civil Procedure, § 1902. Original act as to
widow and next of kin, Laws of 1847, chap. 450; as to husband Laws of 1870,
chap. 78.)

An enactment as to rights is placed in a code of remedies!!!

(2098) The Death Act.of this state does not apply to cases where the
transaction occurred in a foreign country. (Whitforav. Panama R. R. Co.,
23 XN. Y., 465.) :

(2099) To entitle legal representatives to recover under the Death Act, it
is not indispensable that the deceased should leave him surviving both ‘‘a
widow and next of kin.” (McMahon v. The Mayor, 33 N. Y., 642.)

(2100) The Death Act of this state has no extra-territorial force. (Mahler
v, Norwich & N. Y. Tran. Co., 35 N. ¥., 352.)

(2101) A husband, not being next of kin of his wife, had not, prior to the
amendment of the Death Act, by Laws of 1870, chap. 78, any interest in a
judgment recovered under it. (Drake v. Gilmore, 52 N. Y., 389.)

(2102) Under the Death Act of this state an action may be maintained in
this state against the citizen owners of a domestic vessel to recover dam-
ages for negligently causing the death of a citizen upon such vessel while on
the high seas. (McDonald v. Mallory, 77 N. Y., 546.)

(2103) An action to recover damages for negligently causing death in
another state is maintainable in this state by an administrator appointed
here, ifthere is in such other state a Death Act similar to our own,
{Leonard v. Columbia Steam Nav. Co., 84 N. Y., 48.)

(2104) The Death Act of this state does not create any right of action for
a negligent killing out of the state. (Debevoisev. NV. ¥., Lake Erie & W.
R: R. Co., 98 N. ¥., 377.)
730 Cases CopIFIED. [Cuap. X.

 

(2105) Where a statute of another state gives to a widow a cause of action
to recover damages for negligently causing her husband’s death in that
state, the widow may sue in this state to recover the same. (Wooden v,
Western N. Y. & Penn. R. R. Co., 126 WV. Y., 10.)

(Other Acts.)

(2106) Owners, lessees, proprietors and managers of hotels exceeding two
stories in height must place in every lodging-room above the ground floor
a rope or other better appliance for use as a fire-escape securely fastened,
and.also a printed notice that it is there. (Laws of 1887, chap. 720.)

(2107) The common law liability of innkeepers for guest’s property
destroyed by fire in out-buildings is abrogated in cases ‘‘ where it shall
appear that such loss or destruction was the work of an incendiary and.
occurred without the fault or negligence of such innkeeper.” (Laws of
1866, chap. 658.)

(2108) The Innkeepers’ Act of 1855, lessening their common law liability,,
was amended in 1883. (Laws of 1883, chap. 227.)

(2109) In New York City the following duties are imposed upon owners.
of buildings: (1) to place such trap-doors at each floor in elevator-
shafts as the superintendent of buildings shall direct; (2) to provide
certain tenement-houses, factories, hotels, office and other specified build-
ings with such fire-escapes, alarms and doors as such superintendent shall
direct; (3) to follow certain other requirements in building too numerous to.
admit of mention here, neglect to obey which may (possibly) give aright of
action to any one who can show that he has thereby sustained injury.
(Building Laws of New Vork City, Laws of 1871, chap. 625, §§ 16, 28 &c., as
am. by Laws of 1874 chap. 547, §§ 5, 7 &c., merged in The Consolidation Act,
Laws of 1882, chap. 410, The Building Laws have doubtless been
attended by the fate which overtakes all our statutes ; either they were so
badly drawn in the first instance that they had to be amended, or else they
were distasteful to some particular person, whose influence was sufficient.
to get them changed.)

Other statutes, under which causes of action may arise, will be
found in the various titles and articles of Chap. II, szb. zom., Refer-
ences to Statutes, or in the cases cited in that chapter. A list of
all statutes cited is given. (See Part III.) It is not practicable to give
a refergnce to every statute which creates or bears upon a cause
of action growing out of negligence. The general rule is that
omission to perform a duty enjoined by any statute is actionable
negligence in those cases where it would be if the duty existed at
common law (szpra, § 18). Inthe Penal Code may be found various
provisions which may create or affect a right of action for negligence.
The same is true of many other acts, to enumerate which could sub-
Serve no material purpose. It can not be necessary to trace their
devious history, or to attempt in a book (which can not be changed as
easily as acts of the legislature) to state what the statute law of this.
state is on any one point, at any one time.
Misc. Suzy. Cases CopIFIED. 731

 

Trespassers.

(2110) Where cattle are trespassing on another’s property the latter owes
no duty to their owner to take care not to injure them. (Munger v.
Tonawanda R. R. Co., 4 N..Y., 349.)

(2111) A servant run over while walking along the master’s track to his
work is to be regarded, if rightly there, as engaged in the discharge of his
work, or if not so regarded, then as a trespasser. (Boldtv. N. Y. Cent. R.
R. Co., 18 NY Y., 432.)

(2112) The statutory duty of railroad companies to give warnings of their
trains at crossings is owing to travellers on the highway, not to persons
walking on their tracks. (Harty v. Cent. R. R. of N. F., 42 N. Y., 468.)

(2113) A person riding in a caboose of a freight train at the invitation of
its conductor given in defiance of the company’s instructions is unlawfully
on the train. (Eaton v. Del., L. & W.R. R. Co., 57 N. Y., 382.)

(2114) A common carrier owes no duty of care to persons unlawfully on
its trains. (/d.)

(2115) In ejecting a trespasser from one’s premises it must be done with
reasonable care for his bodily safety. (Rounds v. Del., L. & W. R. R. Co.,
64.V. Y.,129. Hoffmanyv. N. Y.C. & H.R. R. R. Co., 87 N. Y., 25.)

(2116) When a master instructs his servant as to who shall be allowed to
ride on his conveyance, he is responsible for the manner in which the ser+
vant puts persons off, where the servant does so with the intention of
carrying out the instructions. (/d.)

(2117) A person who steps upon a railroad track to save life is not a
trespasser. (Spooner v. Del, Lack, & W. R. R. Co., 115 XN. Y., 22.)

Miscellaneous.

(Some illustrations of General Principles.)

(2118) Negligence can not be predicated of an omission to provide against
the action of an unprecedented storm. (Morgan v. Crocker, 62 N. Y., 626;
Ward v. All. & Pac. Tel. Co., 71 N. Y., 81; Connellyv. Manhattan R. Co., 142
N. Y., 377-)

(2119) The fact that one’s own property is imperiled without right by the
property of another, does not give to the owner of the former any right to
remove the latter in a reckless manner. (M/arkv. Hudson Riv. Bridge Co.,
103 WV. ¥., 28.)

(2120) Failure on a sudden emergency to do the best that afterthought
shows could have been done to avoid an accident is not negligence. (Wynn
v. Cent. Ph. &c. R.R. Co., 133 N. ¥., 575.) )

(2121) Neglect to enforce a right furnishes no ground for the application
of the principle of subrogation. (People ex rel v. Board of Supervisors, 136
NM. Y., 281.)
732 CasEs CoDIFIED. [Cuap. X.

 

(Rulings from 143 and 144 NV. Y. published too late for insertion
in proper places.)

ON THE FOLLOWING SUBJECTS:

°

Abatement. » Notice.

Causes. : Owners of Pers. Prop.
Damages. fe “ Real“
Defenses. Pleading.

Evidence. Practice,

(1) Abatement.
Chap. X, p. 721, (2021a.)

(2122) A cause ofaction against a domestic business corporation to recover
damages resulting from its negligence does not abate upon its dissolution,
but survives againstits trustees which hold its property for distribution,
(Marstaller v. Mills, 143 NV. Y., 398.)

(2) Causes,
Chap VIII, sué xom., Fires, p. 705, (1887a.)

(2123) Where the burning of one building, by its catching fire from an-
other on the same premises, is the natural and direct result of an act which
caused the burning of the first building, a recovery may be had for the
second building, as well as the first. (Fracev. VM. VY. Lake E.& W. R. R.
Co., 143 WV. Y., 182.)

(3) Damages.
Chap. VI, p. 671, (1537a) or p. 676, (1596a.)
(2124) The loss to a husband of a chance of offspring, involved in a par-
ticular miscarriage, is not an element of the damages sustained by the
husband through loss of services of his wife by reason of another’s negligent

act, which produced such miscarriage. (Butler v. Manhattan R. Co., 143
N. Y., 417.)

(4) Defenses.
Chap. V, p. 666, (1506a.)

(2125) Insanity is not a defense to an action to recover damages resulting
from that which, in a sane man, would have been negligence. (Wiliams v,
Hays, 143 M Y., 442.)

(5) Evidence.

Chap. VII, swb nom., Presumptions, p. 682, (1634a) also Miscell. Defts,
sub nom., Bailees, Chap. II, p. 592, (801a.)

(2126) Proof of the condition of an article at the time of its delivery to
a bailee, of the nature of injuries subsequently happening to it, and that
they were not the result of ordmary wear and tear, makes out a prima facie

case of negligent custody on the part of the bailee. Wintringh
ae a ( nghamv. Hayes,
Misc. Susy. ] Cases CopIFIED. 733

 

Chap. VII, sus xom. Presumptions, p. 683, (1641a.)

(2127) Where a lot-owner is filling up his lot and using the street as a

_ place of temporary deposit of the dirt, which he appears to be removing as

it is deposited, no presumption may be indulged in as against the municip-

ality that he will leave any of the dirt in the street over night. (Brei/ v.
City of Buffalo, 144 N. Y., 163.)

Chap. VII, sub zom. Declarations, p. 694, (1765a.)

(2128) A discourteous remark, which a negligent servant may make in
answer to an expostulation against his carelessness, is not part of the ves
gestae. (Butler v. Manhattan R. Co., 143 N. Y., 417.)

/

(6) -Notice.
Chap. X, p. 724,-(2054a.)

(2129) Constructive notice to a municipality of the existence in its street
ofa pile of dirt, which should be lighted over night, can not be inferred,
where the pile was made the same day and the circumstances were not
such as to warrant a presumption that it would be left there over night.
(Breil v. City of Buffalo, 144 N, Y., 163.)

(7) Owners of Pers. Prop.
Chap. II, Art. V of Tit. IV, p. 599, (868a.)

(2130) When a part owner of a vessel sails her on shares, he is answer-
able to his co-owners for the consequences of his omission to take due care
ofher. (Williams v. Hays, 143 N. Y., 442.)

(8) Owners of Real Prop.
Chap. II, Art. IV of Tit. IV, p. 581, (695a.)

(2131) Negligence can not be predicated of the adoption by a railroad
company of one kind of spark-arrester in place of another, where it appears
that both kinds are in general use, and it is mere matter of opinion which
is better than the other. (Fvacev. NV. V., Lake Erie & W. R. R. Co., 143 WV.
Y,, 182.)

p- 582, (703a.)

(2132) Where a party wall was built to serve as a wall for higher buildings
than at first erected and one owner afterwards carries it up to the anticip-
ated height, he is not answerable for the damages resulting to his co-owner
from the fall of the higher part, in the absence of evidence that such fall
was due to negligence. (Megus v. Becker, 143 N. Y., 303.)

See note to this case in Part I, as to liability of owner for contractor’s
negligent cor.struction of a wall.
734 Cases CopDIFIED. [Cuap. X.

(9) Pleading.
Chap. IX, p. 714, (1948a.)
(2133) As to complaint being demurrable where it seeks to hold several
directors liable for various acts of negligence, they not having been direc-

tors during co-terminous periods and the complaint not showing any neces-
sity for an accounting. (O'Brien v. Fitegerald, 143 N. Y., 377.)

(10) Practice.
Chap. IX, p. 716, (1972a.)

(2134) The remedy for an erroneous denial of an unopposed motion for a
preference on the calendar is by mandamus, not by appeal. (Hayes v.
Consol, Gas Co., 143 N. Y., 641.

END OF PART If,
PART THIRD.
THE CASES CLASSIFIED.

Being an arrangement of them mainly for the purpose of
bringing together all which are similar in their facts, even asin
Part II all are correlated which involve similar questions of
law.

This part is therefore only an index.

There is no one system of indexing or classifying negligence
cases, which will insure the practitioner against some pertinent
authority eluding his most careful search. Four things are to.
be considered in looking for precedents—the relation borne by
the plaintiff to the controversy, that borne by the defendant,
the cause of the injury, and the amount of the damage.

No severely logical system of classification will enable the
trial lawyer to know that he has found all the cases which bear
upon his own. That which has escaped him may be the very
one which contains a differentiation that may make or mar his
success.

If a client consults him in regard to an accident which hap-
pened at a coal hole, it may not be highly logical to look for
the law as to such cases under the head of “coal hole,” but it
is very convenient. If aman is injured by an explosion, it may
excite ridicule to be asked to look for cases under ‘‘ Explo-
sions.” The critic’s laughter, however, ought to turn to thank-
736 Casrs CLASSIFIED.

 

fulness, if he finds the authorities he wants.* Logic must give
way to convenience.

The classes are as follows : ;

Class A.—Plaintiffs’ Relations.
‘© B,—Defendants’’ «“
“« C,—Accidents mainly.
«© D,—Under Contract only.
‘¢ E.—Verdicts.
‘* F.—Statutes cited.

It is to be borne in mind that the same case may properly be
placed, and will often be looked for, under different headings.
Choice had to be made between a rather complex system of cross
references and an undue swelling of the bulk of the index with-
out any corresponding increase in its value. As the aim of the
author has been to avoid ‘ padding,” and to make his work as
concise and compact as possible, he chose the former method.

 

* It is admitted that this index is fashioned somewhat on the plan of that,
one, in which the reader found, ‘‘ Best, Chief Justice, his great mind,’’ and
on turning to the text, read, ‘‘Chief Justice Best said he hada great mind
tocommit the witness for contempt of court.’’ But it is believed that by its aid
the practitioner can find the trail of “a case in point,’’ among the many
decisions in two hundred different volumes, with less difficulty than in any
other way. He who is unwilling to sacrifice logic to convenience is referred
to the index to Part II.
Crass A. }

Casrs CLASSIFIED. oe | 8T

CLASS A—PLAINTIFFS.

The persons, whose law-suits are mentioned in this book,

Bailors. :
Blind Persons.
Cestui-que-Trustent.
Children.
Clients.
Common Carriers.
Creditors.
Customers.
Depositors.
Drunken Persons,
Guests.
Husbands.
Insured Persons.
Lessees.
Licensees,
Miscell. Persons,
Next of Kin.
Owners.

Of Real Prop.

“© Pers.‘

(See also pp. 590, 606, 631.)

 

belong to one of the following classes :

Parents.
Parties.
To Actions.
** Contracts,

Passengers.
Patients.
Pledgors.
Purchasers.
Sailors,
Servants.
Shippers.
Spectators.
Tenants.

Travellers on Highways,
At Crossings.
Passers-by.

Trespassers.

Widows.
738 Cases CLASSIFIED. [Crass B.

 

CLASS B.—DEFENDANTS.

The defendants in these actions belong to some one of the
classes named in Art. V of Tit. IV of Chap. IL (See pp. 590,
606.)

They are further classified according to their occupations in
the Table of Cases, sud nom., Defendants’ Names.

This has been done for the double purpose of facilitating the search for
a particular case, and of affording a point of departure for. an inquiry in
the domain of Comparative Negligence. What railroad companies are
most careful of their passengers? What municipalities are most negligently
administered? What masters take most pains to protect their servants?
A glance at this table will show how many suits have heen brought against
various kinds of defendants, which have gone to the highest court, (not
counting the cases in which no opinion was given.) It willalsoreveal what
companies, or municipalities, or masters have not been sued.

It would not be fair to the respective railroad companies to draw inferences
in regard to their comparative negligence merely on the basis of that table
of cases. But as to the municipalities of the state, with our general
knowledge of their size, we can, by aid of this table,-form some idea as to
which is most mismanaged, so far as the safety ofits highwaysis concerned.
The contest is evidently between the cities of Troy and Cehoes. All things
considered, the latter is probably the most negligent in the care of its streets,
This inference is corroborated by the fact that the authorities of that
municipality, to save it from the consequences of their neglect, have
obtained the passage of an act abrogating as to it the doctrine of constructive
notice of defects in highways. All that its officials now have to do, in order
to save their city from being mulcted in damages for their neglect to keep
its streets in repair, isto make their tours of inspection with eyes blindfolded,
or noses in the air. Since the passage of the act, the number of suits
against that city has decreased. It would he interesting to ascertain
whether the number of accidents to her citizens has iuereased.
AccripEnts. }

é
CasEs CLASSIFIED.

739

 

CLASS C.—ACCIDENTS MAINLY.

Causes, occasions or scenes of accidents or other occurrences
or transactions, resulting in bodily injuries, or injuries to real
property, or to visible personal property.

There will also be found in this class a few cases which do not involve
such injuries, but which, for convenience of reference, are placed here.
(See, for example, the headings, Arrest, Malpractice.)

Alleys. (See Areas, Crossings,
Excavations.)

Animals.
Dogs.

Kelly uv. Tilton, 2 Abb.C.A.D., 495
Rider v. White, 65 N.Y. 54
Muller v. McKesson, 73 ‘ 195
Lynch v. McNally, 73.“ 347
Brice v. Bauer, 108 =‘ 428
Quilty v. Battie, 135 ‘¢ 201
Hahnkev. Friederich, 140 ‘* 224

Other Animals,

VanLeuven vz. Lyke, IN. Y.515

Dickson v.McCoy, 39 ‘‘ 400
Moynahan wv, Wheeler, 117 ‘ 285
Marsh v. Hand, 120 ‘ 315

(See also Collisions, Frights, Run-
aways, Runovers.)

Appliances.
Miscellaneous.
Kain v. Smith, 80N. Y. 458
i o 89 ** 375
Lewis v, The State, 96 ** FI
Brophyv. Bartlett, 108 ** 632

DeVau v. Penn. &c.Co.,130 ‘ 632
Shields v. N.Y.C. ** ‘ 133 ‘* 557
(See also Belts, Bolts, Brakes,

Bumpers, Chains, Derricks, Draw-
Bars, Falling Things, Hooks, Lad-
ders, Machines, Pipes, Platforms,
Reins, Ropes, Scafiolds, Switches,
Tools, Wheels.)

 

Areas.

Davenportv. Ruckman, 37 N. Y. 568
McGuire v. Spence, gl 303
Corcoran v. Vill.of P., 108 ‘* 151
Bond v. Smith, 1130 378
Martin uv. Pettit, m7 118

(See also Excavations, Holes.)

Arrests.

Of Passengers.
Mulliganv. N.Y. &c. Co,, 129 N.Y. 506
Palmeri v.Man. R. “ 133 ‘ 261

Miscellaneous.

Mali v. Lord, 39 N. Y. 381

Ash-pits.

Holes, Unsafe Places.)

(See Excavations,

Assaults.
On Passengers.

Isaacs v. Third &c. Co. 47 N.Y. 122
Putnam v.B’way ‘“* “ 55 ‘* 108
Schultz v.Third ‘ ‘ 89 * 242
Stewart v.B’klyn ** * go ‘ 588
Dwinellev.N.Y.C.‘* “120 “ 117
Miscellaneous,
Shea v, Sixth &c,Co. 62 N.Y. 180
Rounds w.Del. “ ‘ 64 “ 129
Hoffman v.N.Y.C. “ 87 ‘ 25
Gabrielsonv. Waydell, 135 ‘ I

(See also Ejection of Pass.)
 

740 Casrs CLASSIFIED. [Crass C,
Awnings. Blown by Wind. (See
Hume v. The Mayor,  47N. Y. 639 Wind.)

ac oe 74 be 264 Blows.
Bieling v, City of B., 120 ‘* 98

Bags. (See Missiles.)
Bales.
B -rrels.
Bell Ropes. (See Struck By.)

Belts.
Cahill v. Hilton, 106 N. Y. 512
Ilarley wv. Buff. &c. Co., 142 ‘f 31

Berths. (See Falling Things.)
Bins, (See Caving in.)
Blasting.

Persons injured.

(See Missiles.)

(See Falling Things.)

(1) On Highways,

Pack v. TheMayor, 3N.Y. 489
os 4“ 8 222
Herrington v. Vill. of L.,110 ‘* 145

(2) On Priv. Prem,

Driscoll v, Newark &c,Co. 37 N.Y. 637

St.Peterv. Denison, 58 ** 416
(3) Servants.
Cullen wv, Norton, 126N.Y. 1

Real Prop. Injured.

Hay uv. Cohoes Co, 2.N.Y, 159
Tremain vw. **  * 2 163
McCafferty v, Spuyten‘* 61 “ 178
Doyle v, Rector &c. 118“ 678
Benner wv, Atl, Dr.Co.134 ** 156
Booth uv. Rome&e.'* 140“ 267
Roemer @v.Striker, 142 “ 134
French — v, Vix, 143 ** 90
Pers. Prop. Injured,
Kelly v. The Mayor, 11 N.Y. 432

Blindness.

Davenport v, Ruckman, 37 N.Y, 568
Harris v. Uebelhoer, 75 ‘* 169

Blocks. (See Falling Things.)

 

Gardinier v,N.Y.C.&c,Co, 103 N. Y.674
(See also Struck By.)

Board Walks. (See Plank

Walks.)
Boilers. (Sce Explosions.)
Bolts. (See Brakes, Falling
Things.)
Boxes. (Sce Falling Things.)
Brakes.
Ic Graafv. N.Y,.C.&c.Co. 76 N.Y, 125
Henry v,Stat.Is.** “ 81 ‘* 373
Painton v. Nort.C.* ‘ 83 7
Disher v.N.Y.C.‘ * 94 ‘ 622
Lilly uw #F “107 566
Smith wv “oe rB 645
Wooden vw. Western'* ‘126 '* 10
Wynn vu. Cent.Pk,** 1330 “575
Bailey v.Rome ‘* ‘*139 ‘ 302

Breaking Things. (5ce
Dams, Defective Things, Flag-
stones, Privys.)

Bricks. (See Falling Things.)

Bridges.

k. RB. and Landing,
(1) Passengers Injured,
Perkins v.N.Y.C.&c.Co, 24.N.Y, 196

Ferris v.Un, Ferry ‘* 36 “* 312
Cardot . v. Barney, 63° «281
Loftus v.Un. Ferry 84 “ 455
Tisdale v. Del.&H.C.*' 116 ** 416
Birmingham. Roch. * 137 ** = 13
Race v,Un.Ferry “ 138 '* 644

(2) Servants Injured.
Warner v.Erie K. Co., 39N.Y. 468

Vosburghw, L. Sh. &c.Co, 94 '* 374
Williams vw. Del... © 6116 §* 628
sb ‘6 “6 66 66 127 “es 643

Gates uv. The State 128 «
Wallace v,Cent.Vt. ‘138 «

221
302
 

AccDENTs, ] Cases CLASSIFIED. 741
Highway aud Canal. Bursting Wheels. (See

Bartlett —_~. Crozier, 17 Johns. 439 Wheels.)

Conrad

v. Vill. of Ith., 16N. Y. 158
Garlinghouse v. Jacobs, 29 ‘+ 297

Hover 4. Barkhoof, 44 “ 113
French 2. Donaldson, 57‘ 496
People v.Bd.of Town Aud.75 “316
Morrell 2. Peck, 88 ** 398
Fitzpatrick v. Slocum, 89 ** 358
Cummins v.City of S., 100 “ 637
Rexford v. The State. 105 « 229
Bowen vw s 108 ** 166
McDonald ». ag 27 * 18
Eastman vw. ss 127 * 18
Woodman vw. ue 127 ‘© 307
Getty v. TownofH.127 ** 636
Fisher v. Vill. of C. 1330 527
Gibney v. The State, 137.“ I
Locke a es 140 ** 480
Toll.

Hartz. Hud. Riv. Br. Co. 80 N.Y. 622

oe “ce 84 “ce 56
Eggleston zv. Col. Tpke. ** 82“ 278
Hannon ». Agnew, 96 * 439

Over Excavations,
Creed v, Hartman, 29N.Y. 591
Saulsbury v. Vill.ofIth., 94 ‘ 27
Nolan v. King, 97 ‘* 565
Over Gutters.
Requa v. City of R., 45 N.Y. 129
Private.
Mayor = vz. Cunliffe, 2NLY. 165
‘Splittorff v, The State, 108 “ 205
Donahue v. ss rI2 ‘* 142
Cusick v. Adams, m5 55
Miscell.

Buff. &c. Co. v. City of B. 58 N.Y. 639 |
(See also Falling Things.) '

‘Buildings. (See Falling Things) :
Bumpers. (See Coupling Cars.)

‘Burns. (See Appli., sud, nom., ;
_, Miscell.; also Fires.)

Bursting Pipes.

(See
Pipes.

 

Canals, (See Bridges, Locks.)
Carpets. “(See Stairways.)

Carriers’ Premises.
(See Collisions, Runovers, Explo-
sions, Fires.)

Cars, (See Collisions, Coupling,
Runovers, Vehicles )

Cattle. (See Animals.)
Cattle Guards. (See Fences.)

Caving in.
Earth,
McMahonv. The Mayor, 33 N.Y. 642

Leonard vw. Collins, jo ** go
Pantzarv. Tilly F.&c.Co. gg ‘* 368
Loughlin v. The State, 105 ‘* 159

Kranz v. Long Is.&c.Co. 123 ** I

Stuber ~. McEntee, 142 ** 200
Sugar, Wheat, Se.

Bohn v. Havemeyer,  114.N.Y. 206

McGovern z.C. Vt. &c.Co.123 ‘+ 280

Chains, (See Brakes )
Cinders.
Cisterns.

Clothing Caught.
Colt v. Sixth Ave. &c,Co. 49 N.Y. 671

(See Falling Things.)
(See Tanks. )

Pouliny. Bway ‘“ ‘ 61 '* 621
Kelly v.Sea Beach ‘* ‘10g ‘* 44
Coal. (See Falling Things.)
Coal Holes.

Irvine v. Wood, 5I N.Y. 224
Clifford) wv. Dam, 8r 52
Wolf v. Kilpatrick, ror ‘* 146
Merritt v. Fitzgibbon, 102 ‘* 362
Jennings v. VanSchaick 108 ‘ 530
Blaechinskav. How.Mis.130 ‘ 497

Coals. (See Falling Things.)

Coffer-Dams.
Atwater vw. Trustees &c. 124 N.Y. 602
| Garratt -v. EG % 135 ‘' 436
 

742 Cases CLASSIFIED. [Crass C.
Collisions. Bissell v. aS ee MMs -
On Water. Wells 9. N.Y.C. nr 24. : 181
(1) Passengers Injured or Drowned Te v. H. Riv. : - : as
‘ ee be 9 ‘
Mahler’ v. Norw.&c.Co. 35 N.Y. 352 | Bissell v.N.Y.C. 25 © gage
‘Quinn — v, Power, 87 ** 535 Buel yw € 8 8 ay 4 ary
Strohm v.N.Y.L.E. “ 96 “ 305 Willis v.L. Is. “ © 34 © 670
Robinson v. Ocean.&c.‘* 112 ** 315 Webster v. H.Riv.« « 38 “ 260
(2) Other Persons. Drake v.Gilmore, 52 ‘* 389
Lambertz, Stat.Is.&c.Co. 7oN,Y. 104 | Cleghorn vw, N.Y.C.&c.“* 56 “ 44
Rexter v.Starin, 73 «** 6or | Blair v.Erie RR. *¢ 66 * 313
Cooper v.East.Tr. “ 75 ‘* 116 | Coughlin v, N.Y.C.&c.% 71 ‘* 443
Harris v,Uebelhoer, 75 ‘ 169 } Ulrich eo e108 BO
Erwin wv, Nevers.St. «* 88 “ 184 | Maxon Del. L.«* ‘112 “559
(3) Real Prop. Injured. oe eee he . Bee,
‘Town of P.v. Loveless, 72 N.Y. 211 pera etn 7
: : - Kenney v.N.Y.C.&c.‘125 “ 422
N.J.St. Co. v. The eee 109 621 Susur oalenh, of San @ ey
(4) Vessels Injured. Lyon ee Fe © 6T42 © 208
Vanderbilt v. Kichm.T.Co. 2N.Y. 479 Connelly v. « ee Tgn 397
Kel uv. Barney, I2 ‘* 42 i
nahh uN. J St Co. 43. oe thery; Int)
" Seis te ce E; Wright vu. N.Y.C.&c.Co.25 N.Y. 562
Parrott v. Knick. Ice‘ 46 361 Flike a BAL 53 54g
Hoffman v. Un. Ferry ** 47 “ 176 Chapman v. Erie“ “+ 53“ 579

o 66 “6 68 OS 385
Silliman v. Lewis, 49 ‘* 379
Martin v.Farnsworth, 49 ** 555
Whiteh.T.Co. v.N.J.S.Co.51 “369
Delafield v. Un. Ferry “ 51 * 671

Baird v. Daly, 57 ‘* 236

“e “e 68 « 547
Blanchard v. N.J.St.Co. §9 ‘+ 292
Mailler v. Exp. Pr.Line61 ‘ 312
Wilson. v, Knapp, 7o ‘* 506
‘Carpenter v. East. Tr.Co. 71“ 574

Mark v, Hud, Riv. Br. «103 * 28
“Chase v. Belden, 104 “ 86
(See also Towing.)

(5) Freight Injured.
~Art.F.Ins.Gp. v. Austin, 69 N.Y. 470
See also Class D.

On Land.
(1) Between Trains.

(Pass. inj.)
‘Green v, Hud. &c Co 2 Abb.C,A.D.277
Ransom. v, N.Y.E.&c,Co. 15 N.Y. 415
Chapman v.NewH.* “ 19 « 341
Coiegrovev. N.Y N.H.“ 20 * qg2

 

Sprong w.B.& Al. * 58 «© 56
Rose SOs BSE ES. BB es ory
Booth UW fF 46 86 G7 88 593

“cc 7 66 4c 73 38
Slater v. Jewett, 8 “61
Sheehan v.N.Y.C. “ gt “ 332
Mann vy. DI&H.« “ of “ 4Q5
Dana vw N.Y.C. * * g2 ** 639
Vick we 8 th 46 gg 8 Bby
Ellis v.N.Y.L.E.** 95 * 546
Debevoisev. « “98 § 377
Smith v. NLY.C.&c.“' 118 645
Sutherlandy. Tr.&B.* “125 + 737
Whittaker v. DL&H.“ 126 «* 544
Hankins v.N.Y.L.E. ‘142 « 416

(Other Pers. Inj.)

Eaton v. Del. L.&c.Co.57 N.Y. 382
Wood v.N.Y.C.* 70 Ig
Albert v. Sweet, 116 “363,

(2) Between Trains and St. Cars,
Twomley v. Ct.Pk.&c.Co.69 N.Y. 158
Watson v.4qgzd + & 93‘ 522
Coddington, B'lyn* “102 «* 66

Freight-cars driven in streets by
horses are classified as street-cars.
AccIDENTS. ]

CasEs CLASSIFIED.

743

 

(3) Between Trains and Oth. Veh.
NotTe.—

Flagmen cases marked *

Gate fe ss

For flagmen and gate questions in
cases of persons run over at cross-
‘ings see Run-overs.

(Driver or his Prop. Inj.}
Brooks z. Bff.N.&c.Co.1 Ab,C.A.D. 211
Ernstv. H.Riv. ‘+ ‘> 24 How. Pr. 97

: 35 N.¥.- 9
“ce 66 39 “ec 61

ce be

‘ “e

Brownz. Bff &31.L.&c.Co. 22 ‘' I91
Wilds ov. H.Riv. *© ** 24 © «430

o SSE Eg “B85
“Mackay uv N.Y.C.** §§ 35 “75
Owen ow. TiRivs'* 35 ' S16
Grippen v.N.Y.C.“ ** go “34
*Warmer v. ‘* ‘ % 44 * 465
Richardsonv. “ ** ** 45 ‘* 846
Davis DO SE EE AT EE 400
Eaton v.Erie ‘© * 51 ** Saq
Warner v.N.Y,C.* “ 52 ‘* 437
Weber wv “58 S45
Salterv. Ut.&BLRv.* ‘* 59 “* 631

7 es see 75. 273

sé ce S666 86 ££ Aor

«ce ss se ce BQ ee 42
Culhane z7.N.Y.C.‘* “* Go “ 133
Carr aw © © 6 * 633
*Dolan vo, DIL&H. “ 7E f 285
Kellogg w.N.Y.C.° “ 7g ‘* 72
Stackus v7 ‘“ * ** 7g ‘* 464
Connelly 7 “ ‘ ** 88 ** 346
4Glushing v. Sharp, g6 ‘* 676
Tolman z. Syr.B. “* “ 98 * 198
Powell g.N.Y.C.** “109 ‘* 613
Thompsonz. “ ‘ “110 “ 636
Cullen ov. DIL&H. “113 ** =667
Nash v. N.Y.C.** S125 ** 715
¢Kane vw. N.Y.N.H.‘'132 “160

(Pers Driven Inj.)

Brown = a. N.Y.C,&c.Co.32 N.¥. 597
Stilwell » “ “ * 34 “f 2g
McCall oo. “ § ** 54 %* 642
Massoth v. DIL&H.‘* ** 64 “ 524
Robinson v. N.¥.C.‘* * 66 ‘* IT
Cosgrove a ‘= “ * 87 88
Donnelly v. B’klyn“* “10g ‘* 16

 

Hoag) wv. N.Y.C.&c.Co.113 N.Y. 199
Brickell 7 <‘ * “120 ** 290
Phillips ov “ ** “127 ** 657

(See also Fright of Horses, Run-
aways, Runovers.)

(4) Between Street-Cars.

Barrett v. Third&c.Co. 45 N.Y. 628
Martin v.DryD.“ ‘© 92 ** Jo
McKenneyv. Gr. St.‘* ‘‘104 ‘* 352
Roche v. B’klyn** “105 ** 294
Wynn wv. Ct Pkt £133 ** 575
Schneider wv. Second** ++ 133 ** 583
(5) Betw. St. Cars and Oth. Veh.
(Pass. Inj.)
Clark v. Eighth&c.Co.36 N.Y. 135
Maverick v ‘* * * 36 ** 378
Hill v. Ninth ‘* ‘*10g ‘* 239
Uransky v.DryD.* “118 * 304
Alexanderv. Roch. © “128 ** 43
O’Neil wv. DryD.© “*129 ‘* 125
(Other Pers. Inj.)

Hegan vz. Eighth&c,Co. ee - 380
Adolph zv.Ct. Pk. ** * 65 554

“ - 88 96 ** 530
Cohen uv. Dry D.‘* “ 69 ** 170
Fleckenstein v. “ ‘ “105 ‘* 655
Connelly v. Knick.Ice‘* i114 ** 104
Gumb v.23d &e. “¢1rg oS 4It
Seaman v. Kohler, 122 ‘* 646
Alexanderz. Roch, &c. 128 “ 13

(Vehicle Inj.)

Owen wv. H. Riv. &c. Co, 35 N.Y. 516
(6) B -t v-en Misc. Vehicles.

' Champi«: Jostwick, 18 Wend. 175
| Burnham «. butler, 31 N.Y. 480
Briant vz. Trimmer, 47 “ 96
Spooner zw. B’klyn&c.Co%54 ‘ 230
Metcalf v. Baker, 57 ** 662
Sloane v. Elmer, 64 ‘* 201
Moit v. Cons.IceCo. 73 ‘* 543
’ Tice vz. Munn, 094 ‘* 621
Whitney v. TownofTi.127 ‘* 40
Dudley a. Parker, 132 ‘* 386

" (7) Between Trains and Persons.
(8) « St.Cars oy

| (9) s Vehicles ‘+ ee
See Runovers, Derailment.
744

Gontagious Diseases.
Cesar 7. Karutz, 60 N.Y., 229.

Counters, (See Falling Things.)

Coupling Cars.
Plank 7. N.Y.C.&c.Co0.60 N.Y. 607

De Forest v. Jewett, 88 * 264
Gottlieb vw. N.Y.L.E. “100 462
Bajus wv, Syr. BL st ** 103 f+ 342
Martin v.N.Y.N.H. ‘103 ‘+ 626
Appel v. BAN.Y. ‘arr © 550
Byrnes v. N.Y.L.E. 1130 f* 251
Fredenburg v.North.C.*‘114 “582
Warr wu NYC &c.** 11g‘ 623
Goodrich wv * ** © 116 ** 398
Filbert =v. DIL.&H.'S “121 *! 207
Arnold) =v, DL&H. “125 15
Purdy v. Rome “¢ ‘125 ** 209
Williams v. DIL.“ 8127) 643
Finnell ov. * “129 '* 669
Dye @, FEN STS NG OFT
Berrigan v.N,Y.L.E. ‘131 ‘582
Covers. (Sce Coal Holes, Slip-

ping.)
Cows, (See Animals.)
Crossings.

Defective.

Smith vw. N.Y.Os.&c.Co. 63 N.Y. 58
Gale v.N.Y.C.  * * 76 ** 594
Payne wv. Troy&B.‘* “ 83. “ 572
Rembe v.N.Y.Ont.‘* ‘102 721
Spoonery.Del. L. “11g 22
Hoyt v,N.Y.L.E ‘118 “ 399

(See also Road-beds.)

Trains at,

(See Collisions, Runovers.)
Crosswalks.
Hines v. City of L. | 50 N.Y. 236
Lowery v. B’klyn&c.Co, 76 '* 28
Goodfellowyv.,Mayor, 100 “ 15
Turner v,CityofN. 109 ‘* 301

4e ae 109 om 637
Schild — v. Ct. Pk.&c.Co.133 ‘+ = 446

‘(See also Obstructions, Run-overs.)

Culverts.
Roch. W.L.Co. v.City of R. 3 N.Y. 463

Casrs CLASSIFIED.

 

[Qi ass CY

 

Carves, (See Excavations, sud.
nom., Near Highway, also Tracks.)

Dams, (Se Water.)

Danger, Avoiding. (See
Jumping. )

Dangerous Places. (See
Unsafe Places.)

Decay. (Sce R.R. Bridges, sud.
nont., Serv. injur,, also Private
Bridges. also Timbers.)

Defective Things. (See
Appliances, Blindness, Boilers,
Bridges, Canals, Crossings, Elev-
ators, Embankments, Excavations,
Fences, Fire-escapes, Highways,
Machines, Platforms,PrivatePrem,,
Public Prem., Quasi Pub, Prem.,
Roads, Roadbeds, Scaftolds, Side-
walks, Streets, Tools, Tracks, Un-
safe Places, Vehicles, Vessels.)

Delays.
\ Of Passengers.

Ward. Vanderbilt, 4 Abb.C.A.D, 521
‘Quimby wv. * 17 N.Y. 306

Weed v. Pan’a &c.Co. 17 '* 362
Williams v. Vanderbilt, 28 ‘ 217
‘Van Buskirk wv. Roberts, 31 ‘* 661

Of Aid to Servants.
Scarff v. Metcalf, 107 N.Y. 211

For Delay of Freight, see Class D.

Depots, (See Excavations, Plat-
forms, Struck By.)

Derailment. ''

Passengers injured,
Hegemanv, West. &c.Co, 13N.Y. 9

Bowen v. N.Y.C. © © 18 408)
Curtis vw. Roch.S.t¢ 18 534
Whitford v.Pan’a ‘ '* 23°" 465
Smith v.N.Y.C. 1 © 240 222
Alden wv. «6 COO 26 Og
Deyo i ANS EE AEE. Lig
Brown wf 34g te god

Matteson, {fH Rte
Edgerton v. N.Y .&Ilar. 39 4

487
227
ACCIDENTS. |

Cases CLASSIFIED.

745

 

McPaddenv.N.Y.C.&c.Co.44.N VY. 478
Dyke v. Erie “ ‘45 * 4153
Floyd uw * AE EE ag. SE ES
Sloan wv. NLY.C. 86 45 125)
Reed DW 8 EE gg ME BFA,
Cole uw © EAB se 679:
Rathbun vw. Nrth.C.‘* ** 50 * 656
Andersonv. Rome W. “ 54 * 334.
Lyons v.Erie &c.** 57 ‘* 489;
Hoyt vw L.Ish “S57 ** «678
Metz v. Buff.C. « * 58 * 61°
‘Brewer v.N.Y.IL.E. “124 “ 59.

Serv. Injured,
Sherman v. Roc.S.&c.Co.17 N.Y. 153}
Tinney .v. Bst.&A.'' ** 52 “ 632:
‘Piper v, N.Y.C. “+ 56 630:
\Baulec v.N.Y.&H“ ** 59 “* 356°
Mehan~ z..Syr.B. “ “ 730 §* 585;
Durkin v.Sharp “ * 88 " 225,
Harvey v.N.Y.C. * 88 © 481!
Brick v.Roch. ‘ * 98 * 241:
Donneganv. Erhardt, 119 ‘ 468.
Coppins v. N.Y.C. * 122 557.
“LaCroy v.N.Y.L.E, ‘(132 ‘* 570°

Mail Agents, Inspectors, &c.

Nolton zw. West. &c.Co. 15 N.Y. 444 |
Seybolt wv. N.Y.L.E. “ 95 ‘* 562)
Morris v. Brown, Wr * 318,

Train injured.
N.Y.L.E.&c.v.A.Ref.Co. 129 N.Y. 597!
See Runaway Trains and Cars. :

Derricks. (See Falling Things. )
Dirt. (See Mud, Piles, Rubbish.) :
‘Disease, (See Contag. Disease.) ,

Ditches, (See Excavations,
Trenches, Water.) :

Diverting Water. (Sc;

Water.)
Docks. (See Unsafe Pl.,
Dog «, (See Animals.) i

Doors. (See Falling Things, ;
Struck Ly, winging Things.)

Drainage. (See Water.)
Drains. (See Sewers.)

Piers.)

 

Draw-Bars.
Grant v. Penn. &c. Co. 133 N.Y. 657

Dress Caught. (See Cloth-

ing Caught.)
Drifting Things.
42 N.Y. 484

92. 8 Bry
v. Hud.&c.Co. 103 ‘* = 28

Sheldon vz. Sherman.
TownofP.v. Loveless,
Mark

Driving. (See Overdriving,
‘Excavations, Holes, Embank-
ments, Unsafe’ Places.)

Drowned. (See Collisions,
Explosions, Guard Rails.)

Drunkards. (See Intoxica-

tion.)
Dynamite. (See Explosions.)
Earth. (See Caving in.)
Ejection of Passengers.

Hibbard v. N.Y.E.&c Co.15 N.Y. 455
Sanford v. Eighth «* ‘ 23 “* 343
Barker v.N.Y.C. ‘* “ 24 ‘* 599
Higgins v. Watervliet“ 46 ** 23
Jackson v. Second &c.‘* 47 ‘* 274
Hamiltonv. Third ‘* “ 53 ** 25
Elmore v. Sands, 54 “* 512
Townsendv. N.Y.C.* ‘ 56 ‘* 295
-Cox v. 6 6 63 ATA
Thorpe vv ‘ ‘* “ 76 ‘* 402
(See also Assaults.)
Elevated Roads. (See
Falling Things. )
Elevators.
Corcoran v. Holbrook, 59 N.Y. 517
Brennan v. Gordon, 118 « 489
Hart v. Naumburg, 123 ** 641
Riordan v.Oc,S.$8.Co., 124 ‘ 655
Kern v. DeCast.&c. 125 ** 50
Barnes 2. Keene, 132 ** (43
(See also Elev. Shafts.)
Elevator Shafts. (See

Shafts.)
746

Embankments.

Gillespie v. City of N., 54.N.Y. 468

Van Rens.v. Alb.W.&c.Co.62  “ 65
Carpenterz. City of C., 81 ‘* 21
Veeder v.Vill.of L., 100 “ 343
Hubbell v. City of Y, 104 ** 434
Monk v. TownofU., 104 “ 552
Getty .v. ‘‘ofHam.127 “ 636
Glasier v. “ ‘‘Heb. 131 ‘* 447
Bryant wv “*R., 133 “ 70
Lane wv. ‘© Han. 142 ‘ 510
(See aiso Water.)
Exravations.
In Roads,
Brusso v, City of B., 90 N.Y. 679

in Streets.
Wendcllv. The Mayor 4 Ab.C.A.D. 563

Blake v. Ferris, 5N.Y. 48
Lioyd v. The Mayor, § ‘ 369
City of B. v. Holloway, 7 ‘© 493
Hutson v. The Mayor, g « 163
Hickok v. Vill. of Pl, 16 “ 161
Storrs v.City of U., 17 “ 104
Wall v. Buff. &. Co. 18 ** 119
Farley v. McConnell, 52 * 630
Mastersonz. Vill. of Mt.V. 58 « 301
McMahonv. Second&c.Co.75 * 231
O’Hagan v. Dillon, 76 ** 170
Weed v. Vill. of B., 76 329
Minick v.CityofT., 83 « 514
Bennett v. Whitney, 94 ** 302
Ehrgott wv The Mayor, g6 * 264
Clark z. Dillon, 97 ‘* 370
Hovey v. Vill.of Hav.124 273
Wilson v. City of Tr., 135 «« 96
© In Sidewalks,
Millard v. Brown, 35 N.Y. 297
Sexton v. Zett, 44 "* 430
Kelly v. Doody, 116 “575
Mcsherry v. Vill. of Can. 129 ‘* 612
See also Bridges over Excav.
Quast Pub. Prem.
Beck v. Carter, 68 N.Y. 283
Donovan v. Board of Ed.,85 «+ 117
is v. McAlpin, 85 * 185

CasEs CLASSIFIED.

 

 

 

[Crass C.

Near Highway.
Wright v.Sanders, 3 Keyes, 323
Ditchett v. Spuyt.&c.Co. 67 N.Y. 425

Murphy v.City of B., 98 “ 642

a - 118 ** 575
Ivory v. Town of D.P., 116 “ 476
Hovey v. Vill. of Hav. 124 ‘* 273

Carrter’s Prem.
Austin v. H.Riv.&c.Co.25 N.Y. 334
Hurlburt v. N.Y.C. «© “ go * 145
Hoffman vy ‘ § * 75 * 605
Priv, Prem.

Gardner v. Heart, IN.Y. 528
Dorrity vw. Rapp, 72 ‘** 307

See also Areas, Caving in, Cisterns,
Grading, Falls, Highways, Holes,
Unsafe Places, Tanks, Vats.

Explosions.
Boiler,
(1) Pass. Injured.

Erickson v.Smith, 2Abb.C.A.D, 64
Caldwell v. N.J. St. Co., 47 N.Y. 282

Swarthoutz. #s 48 ‘© 209
Landers v, St. Is. &c.Co. 53 ‘* 450
Carroll wv. ‘ 6 ee 58 FS 26
Leonard v. Col.St.Nv.*+ 84 « 48

(2) Serv. Injured.
Keegan y. West. &c. Co. 8N.Y. 175

Kirkpatr. v, N.Y.C. +* 79 ‘* 240

Fuller vw. Jewett, 80 «* 46

Murphy v.B.& Als + 88 «& 146

Davis v. N.Y.LkK.E.‘* 110 646
(3) Tenants Injured.

Jaffe v. Harteau, 56N.Y. 398
(4) Others Injured.
Ochsenbein v. Shapley, 85 N.Y. 214
Olive v. Whitney M. Co. 103 ‘* 292
(5) Prop. Injured.

Losee =v. Clute, SI N.Y. 474

ee v. Buchanan, 51 « 476
Dynamite.
Rollins v. Farley, I00N.Y. 620

Fireworks, (See Powder.)
 

AccIDENTS. ] Cases CLASSIFIED. TAT
Gas. While riding on Street-cars.
Lannen v. Alb.GasL.Co.44N.Y. 459 (Children.)
Lanigan v. N.Y. “ ** ‘© 71 “ 29 | Sheridan vz. B’klyn &c.Co. 36N.Y. 39
Le » fe He “ 7
eds v. Mut * go 26 (Adults.)
Hunt v. The Mayor, 109 ‘* 134 y
See supra, Boilers, 110 “ 646 Ginna w. Beeuidite Co, 07 N.Y. 596
(See also Suffocation.) ae = east ee 2 ace
Stel ac ee
wise: ehr v. Steinway ‘II 556
Fillo v. Jones, 2 Abb.C.A.D. 121 Preparing to get off Street-cars.
Heeg _v. Licht, 8oN.Y. 579 Nichols uv. Sixth &c. Co. 38N.Y.131
ne v. Palen, 137 ** 248 Getting off Street-cars.
Spicer w.CityofB., 139 “ 6] Traverv. Eighth&c.4Abb.C.A D. 422
Babcock v. Fitchb.&c.Co.140 “« 308 | Mulhado v. B’klyn &c.Co. 30 N.Y. 370
(See also Fires.) Dickson wv. B’way ‘“* ‘ 47 ‘* 507
Locomotive. (See Boiler.) Cregin v.Biklyn “ “ 75 ‘* 192
be . oe sek 8 be
Naptha. : : : 3 ad
Leew. Vacuum &c. Co. 126N.Y.579 Getting on Trains.
Wallacev. © ** 128 ‘ 679 Phillips wv. Rens. &S. &c. 49 N.Y. 177
. Keating v.N.Y.C.&c.Co.4g ‘* 673
. ; Oil Tanks. Eppendorf v. B’klyn “* “¢ 69 ‘195
osulich vw, Stand.&c.Co.,122N.Y. 118 | paulitsch v. N.Y. ‘* ‘“‘102 ‘* 280
Steamboats. (See Boiler.) Solomon vw. Manh, ‘* “303 ‘* 437
Steam Radiators. Card e's oe ‘ Meg. % 676
Moeller v. Brewster, 131 N.Y. 606 Hunter v.Coop.&S. “112 ** 371
(See also Bursting Pipes, Wheels.) a ‘ eee aS
: Lent v. N.Y.C.&c. ‘120 ‘* 467
Factories, (See Fires, Unsafe | Hickenbottomy. DIL. ‘122 ‘ 9h
Places.) (See Gates.)

Failure to Fence. (See

Fences.)

Falling Things. (See Falls.) |

Falls. Of Persons.

(1) Of Passengers.
Getting on Street-cars.
(Children. )

Drew v.Sixth &c.Co.1 Abb.C.A.D.556

oe Bis oe AE 26N.Y. 49
Maher vz. Ct. Pk.&c.Co.67 ‘* 52
Akerslootv. Second ‘* **131 ‘* 599

(Adults.)

Wolfkiel 'v. Sixth &c.Co. 38N.Y¥. 49
Hayes v.42d “ ‘* 97 ‘* 259
Butler v.GlensFalls&c.1z1 ‘“* 112
Moylan v.Second ‘ 128 * 583
Morrison v. B’way&c.Co.130 * 166
Kennedy v. Roch. “ * 130 ‘* 654

 

While Riding on Trains.

| McIntyre v. N.Y.C.&c.Co. 37 N.¥. 287

Werle v.LongIs.‘* “* 98 ‘+ 650
(See also Lent case, last subdiv.)

Preparing to get off Trains,

| Wylde #. North. &c.Co, 53 N.Y. 156
| Sauter w.N.Y.C. ** ** 66 ‘ 50
Milliman wv ‘* «6 66 642
Taber v.Del.L. “ ** 71 ‘* 489
Ferry v.Manh. “ ‘118 ‘* 497

Getting off Trains.
(Children.)
Downsv. N.Y. C. &c. Co. 47N.Y. 83

“cs “ec 6 66 56 sc 664.
(Adults.)

Filer v. N.Y.C.&c.Co.49N.Y. 7

6 ee sé he 59 “es 351

66 ‘6 co ce 68 6 124

Hagenl. v. Con.Is.* “* 99 ‘* 136
“Tas

Bartholomew sr. N.Y.C.Co.102N.Y.716
se 8S EG Se 6
116 ** 546

Griswold
“MeDonaldz. Long Is.

Between Car and Station
Platforms.
Laflin e But &e.Co.106 N.Y. 130
vw. Manh. ss rr 344
we ps Fe ab

sor os 4o

Boyce
Ryan w

Brady wos of

Getting off or on Stages
or Cable-Cars.

Roberts 7. Johnson, 5S N.Y. 613
Reid =v The Mayor, 30% §34
(2) Of Servants.

Powers v.N.Y.L-E.&c. oS N.Y. 274;
Bushby  @. “S107 3 374
(3) Of Passers-By.

McGaltin «. City of ©.  74N.Y. 387 |
Hildreth  v. ©  Troior ** 234
Taylor Rs “C. 10h 54
Curry wv * BL 135) ** 366;

(See Highways. )

(4) Of Licensees, '

Camp 7. Wood, FON.Y. 92
Miller 7. Woodhead, log 470 |
Hart ». Grennell, te “© 371

(5) Of Drunken Persons.
Volans 7. Owen, 74 N.Y.
See also,

526

Appliances, Ice and Snow,
Areas, pe ing,
Assaults, adders,
Llows, Obstructions,
Breaking Things, Platforms,
Cisterns, Vrivys,
Clothing Caught, Ropes,

Coal Holes, Kun Overs,
Collisions,@ Shatts,

Slipping,
Struck By,
Stumbling,
Tanks,
Thrown Down,
Thrown Off,

Coupling Cars,
Draw-bars,
Drowned,
Elevators,
Embankments,
Excavations,

Flagstones, Trucks,
Grades, Unsite Places,
Guard-Rails, Upsets,
Hatchways, Vats,
‘Highways, Vehicles,
Holes, Vessels,

Casvs CLASSIFTED,

 

[Crass C,

OF Things.
(1) Buildings or Walls.
Hofnagel =. NV .C.X¢.C0.55 NY, 608

Mallen) «St. John, 57 *t SO7
Cain m City of Syr., 05 8 SS
Edwards 2. NSYL&IE ke, a8 245
Simmonss. Everson, roy Bag
Timlin ¢.Stand.OilCo.120 51g
Engel om EurekaClub 13700‘ 100
Negus v, Becker, 1y3 0 303

(2) From Buildings to Highways.
(Boxes, Ice, Planks.)
Stevens 7 Armstrong, 6 N.Y. 435

Althorf v. Wolfe, a3 355
Walsh v. Trof Bridge, 00 427
Hegerichs, Keddie, on th 258
‘Hexamerr, Webb, Or ** 397
Walsh =v The Mayor, 107 * 220

(3) From Elev. Roads to Highway,
(Cinders, Coals, Bolis.)
Lowery wv, Manh.&e.Co, 90 N.Y. 158

Searles wv. “oo TOR * 664
Wiedmerz, NYEL «11g © 402
Volkmar v, Manh.&e.*! 13g 68 gS
(4) Piles in Highways,
(Timber, Brick.)
Cosgrove vy, Ogden, 49 NY. 255
Rehberg 7. The Mayor, gt * 137
as es 99 © O52

(5) Miscell. in Highways.
(Counter, Pipe.)
v. City of Troy tog N.Y, 344
Schmidt v, Steinway Xe. 13206 566

Kunz

(6) On Shipboard.
(Horse, Berth, Tub, Skid, Match,
Block, Barrel.)
Hazman 7, Hob, L.&e.Co.50 N.Y. 53

Smith 2, British «8 So © 4o8
Derren 7, Leh, VIL 6 87 + 636
Mudson 7. Ocean S.S. iio 025
Ilussey ov, Coger, tit Og
Sanford o, Stand, Oi 18 4 574

Kilroy om DL&IL&e. rar ag
Johuson vw. Neth, + “132 576
_ ACCIDENTS, ]

(7) On Carrier’s Premises. |
(Parcel, Lumber.) :

‘Morris v. N.Y.C.&¢.Co. 106 N.Y. 678
Ford v. LakeSh.** * 117. ** 638

‘e “ 124 ¢* 493

ee Ge

(8) On Docks.
(Skid, Dour, Derrick.)
Hudson v. Ocean $.S.Co.110 N.Y. 625
‘Newall v. Bartlett, 114 ‘% 399
Thomasv. Henges, 131 453 :

(9) On Other Prem,
(Privy, Tub, Sash, Grating, Plaster.) |
Ryan v. Fowler, 24N.Y. 410
Malone vz. Hathaway: 64
Odell v.Solomon, -99 ‘* 635 |
Galvin v.Thé Mayor, 112 223 ©
‘Dollard .w. Koberts; 130 “
For fall of
Bell-ropes, see Struck by.

Earth, “* Caving in.
Gallery, * Buildings.
‘ Grain, “ Cavingin. ‘°
Missiles, ‘© Missiles.
Rock, “ Caving in.
_ Ropes, “© Ropes.
Shafts, *¢ Poles.
Sugar, “« Caving in.
Tel. Poles, ‘* Poles.
Thills, - “ «
Fences, Cattle-Guards,
Gates.
Private. i

Clark v. Brown, 18 Wend. 213

‘

Ratlroad.
(1) Cattle or Horses run over or
otherwise hurt.
Murray wv. N.Y.C.&c.3 Ab.C.A.D. 4307
Staats wv. H.Riv. ** 4 cs 287 1
Tallmanv. Syr.B. ‘* 4 ee 351"

q
4
t
‘
‘

‘Munger v. Tonaw.&c.Co. 4N.Y. 349 |
Corwin wv. N.Y.Er.‘* ‘* 130 S42
Poler v.N.Y.C. 16 476)
Hance v.Cayuga ‘‘ ** 26 ‘* 428
Brace uv. N.Y.C. “¢ “ 27 269:
.Chapmany. ‘“ =‘ * 33°" 369.
‘Bradley v. BELN.Y.“ ** 34 * 427,
Shepard wv. ce HORE 3g he Gar
. Schermerh.v.H.Riv. “ ‘* 38 ‘103:
Tracy v.Tr.&B.“ “ 38 “ 433:

Cases CLassIFIED.

.Purdy

269 |

 

‘ ie

-u. N.Y.N,H.Co., Bes 53
-Spinner v.N.Y.C.&c:** 67 153
“Knight . v N.Y.LKE.“ 99 ‘9 25
Boyle v. st “115 ** 636
Dolan v.Newb. “ “120 “ 571
Kelver -v.N.Y.Ch.** 126 “ 365

(2) Servants injured. /

Donnegan v. Erhardt, 119 N.Y. 468

(3) Infants injured.
Prendegastv. N.Y.C.&c. 58N.Y. 652
Kenyon vw. “ ‘* 76 % 607

(4) Others injured.

Ditchett v. Spuyt. D. &c. 67 N.Y. 425
Ivory v. Town of D.' 116 ** 476
( See Excavations, Guard-rails. ae

Ferryboats. (See Vessels.)

Fires.
Persons Burned,

(1) Passengers.

McDonald v.'Mallory, 77N.Y.546
(2) Servants,
Pauley vz. St. G. &c. Co. 131 N.Y. go

(See Appliances, Lewis case.)

(3) Tenants.

Willy v. Mulledy,. 78N. Y. 310

Real Prop. Burned.
_ (1) Houses and Barns.
Sheldon v. H.Riv.&c.Co. 14N.Y. 218

‘Fero v. B.&S.L.e§ 22 209
Hinds wv. Barton, 25 “ 544
Ryan v.N.Y.C. ‘* ** 35° ‘* «210
Bedell v.Long Is.“ ‘* 44 ‘* 367
Crist v.Erie  * 58 ‘* 638
Briggs v.N.Y.C.&c.Co.72 ‘ 26
Conn.F.1.Co. v.Erie** “* 73 ‘* 399
- Kalbfleischv. L.Isl‘* ‘*102 “ 520
Seeley v.N.Y.C. ‘* ‘*102 ‘ 7I9
Read wv. Nichols, 118 “* 224
Spier v.CityofB. 139 ‘“ 9
Flinn wN.Y.C. &c. ‘142 6 OIE
Frace v. ‘* LkE. “143 “* 182
Ti
(2) Woodland &e,

Weld e NV ENE Co. a NUYV Ato
Webb oe Rome of qa th qe
Vays oe Miller, i
Miller oe bys dahot os gar ake
Perpusones Llabboll, op ' Qap
Cote ey NYE ag th ogy
O' Neth es NY OR Worry ht Vta
Dwinht ae Phot teagan toe

Porvndd Od) Apia.
(At ane,

Hulett es Swilt,
Tayalabeo ec, Wood, Aye

ASNAV get
877

Waneott oe. Nichola, Op Ty
(2) Vearela,

Riddell) e NYE Seo. 7a NV as
Cosulich es Stand. OU uss 8 as
(3) Mineett.

Brown oe. Hanford, \ Den. y8o

Stone oe Woets Pr Co. gk NAV, ge
Stewart ey Stone, ey ot ga
(Seo Baphoadoia Alio Chaaa t),)
Fivo-hscapos. (eo titeh

waryry “Prape Door)
Flagmon, (see Collinions,

Runoveri)

Flagpoles. (See Polen, )

Flagstones,
Conptove ce, Sivith, WN. yy
a» e Movin, Rot Sy

Nabbage ve Power,
Flooding. (sve Water.)
Floors.

Uhieer )
Froshets, (Seo Waters
Frights of Horses.

hyo toa

(fee Thales, Unrate

Novely ow. Kohler, AUN. ge
CUllemplo eCity ob N., yy ot! qos
Dyor veoliide &eCocge 338
Vonle ow Netlog eae
Vyrplont. Coll ple Ra gS

Conproven, NVIE Se, By ORS
Lowery @ Minh gg 448

Rombo ow XN WoOut) ea gan

(Casts Ch Assir ie

 

Cras Cy

Roevringeor Vall atl VO NAV bay

Philp es NAVE NE CO ayy
(lamer ew Powe at ll age hh gy
Tariidigy es Gatiedia, aa ay.

(Seo abto Cooma, Wunawie )
Gallorys. (Seo Balling: Plage)
Ganyways. chee Voreiols,)

Gas,
thon)

Gatag. (eo Collenona Vonees,
Runovers, Strack Uy)
Grados ot Sidewalks,
Clemence eCity ot An OO NV. bet
Urquibandtes Onan th Oy
ve ee uv? a ays
Grading.
Ciardiner ey Pbeart, UN. yas
Radelitle ey Pho Mayer go" tay
Voliuvabee e. Villot Au igs ou as

Grain, (Seo Caving in)

Gratinga. (oo Malling Things,
Mateolweaya.)

Guard-Rails.

eC hamph Wena Nv 4

(hee Eyptowioue, Satie:

Donic

Clowolauiles NSE Co. AR yao
sy u Ryo 037
ny . me Vy sun

Cumyp ® Wood, yoy ys

Kare @ Pray des tye yoy

(eoccaba Hideo, Maabaahaeute,
Vacuvattonn, Moneon, Toto.)

Guards.
Cauatat vatta.)

(See Cadthe Ciara,

Gutters, (hoe Welder, leo and

Hnow.)
Halla, (deo Unite Mle.)
Hatohwaya.

Potton es Plitpposy

Ha N.V, 34

MeAlptiae Powell, yy 8 16
Anthony eo beard, 10§ "yd
Meshory oe Vil ob. aaa Oia

(See nlaa Shette.)
AccIDENTs. }

Cases CLASSIFIED.

 

Highways.

See,
Areas, Obstructions,
Awnings, Piers,
Blasting, Poles,
Bridges, Projections,
Canals, Rubbish,
Coal-Holes, Runaways,
Collisions, Runovers,
Crossings, Sewers,
Cross- Walks, Slipping,
Embankments, Steps,
Excavations, Streams,
Explosions, Stumbling,
Falls, Switches,
Grades, Thrown Down,
Hatchways, ~ OFF,
Holes, Tracks,
Ice and Snow, Wagons,
Jumping, Water,
Mud, Wrecks.
Hit By Things. (See

Struck By.)
Holes.
Wright «Sanders, 3 Keyes 323
Weet z. Vill. of Br., 16N.Y.161
City of Br. v-B’klyn C.&c. 47 ‘* 475
Worster 7. Forty-Sec. ‘550 ** 203
Hines v.City of L. 50 ‘+ 236
Johnson _v.Freel, 50 ‘* 679
McGarry 7.Loomis, 63 °° 104
Wooster v.Forty-Sec.&c71 ‘* 471
Bassett v.Fish, 75 ‘* 303
Gvillotel v.The Mayor, 87 °° 441
Littlewood v. “ 8 24
Homer v. Everett, gt ‘* 641
Bullock v.The Mayor,g9 ~ 654
Gage ».Vill. of H. 106 ‘+ 667
Harring. v.City of B. 119 * 156
Filbert v.Del.&H.&c.121  '* 207
McQuigan 7 Del. L. &c. 122) ** 618
City of R. vCampbell, 123) ** 405
Charlock v.Freel, 125 “* 357
Chisholm v.The State, 141 ‘* 246

(See also Carpets, Caving in, Coup_
jing Cars, Crossings, Cross-walks,
Excavations, Falls, Plank-walks,
Stairways.)

 

751

Hooks.
King v.N. ¥.C. &c.Co. 66N.Y.181
oe wo. ee “ 72 se 607
Burke v.Witherbee, 98 ‘* 562
Kelly v.Sea B’ch&c.Co.tog ‘* 44

Carlson v. Phoenix Br.Co.132 ** 273

Horses.
Things. )

(See Animals, Falling

Hydrants., (See Obstructions. )

Ice and Snow,
(1) On Highways.

Todd v.City of Tr., 61N.Y.506
Clemencev. “ ‘* Aub., 66 ‘* 334
Evans 2. ‘ ** Utica, 69 ‘* 166
Moore v. Gadsden, 87 «84
" uv - 93 ‘“* 12
Wenzlick v. McCotter, 87 ss 123
Urquhart. City of Og., 91 ‘* 67
C 7 97“ 238
Dickinson v. The Mayor, 92 ‘* 584
Reid a ts 97 +‘* 620
Allison v, Vill. of Mid. tor ‘ 667
Twogoodv. The Mayor, 102 ** 216
Pomfrey v. Vill. ofSar., tog ‘* 459
Taylor v.Cityof Y., 105 ‘“ 202
Kinney v. “! Tr, 108 ‘* 567
Kaveny v7. * “© 108 * 571
Bishop v. Vill. of Go., 120 ‘+ 337
Harringt. wv City of Buff. 121 ‘S147
Gillrie v. © L., 122 ‘ 403
McNally 7 ‘* Co.,127 ‘* 350
Keane v. Vill. of Wa., 130 ** 188
Ayres v. “% H., 130 ‘* 665
Weston v.City of Tr., 139 ‘* 281

(2) On Carrier’s Premises.
Mowrey v. Cent.City R. 51 N.Y. 666

Weston v.N.Y.EI.&c.Co.73 “ 595

Dixon v.Bklyn ** ‘**100 * I70

Palmer v.Penn. *' ‘rrr ** 488

Kelly v.Manh. ** ‘412 ** 443

Impure Water, (See
Water.)

Infection. (See Contagious.
Diseases.)
 

‘752 CasEs CLASSIFIED, [Cuass C.

Insecure Loads. (See | Lay-figures, (See Obstruc-
Vehicles.) tions Stairways.)

Intoxication. | Leaks, (See Gas, Pipes, Water.)

(Civ. Dam. Act.)

Bertholf v. O’Reilly, 74.N.Y. 509 |
“Volans v. Owen, 74 ** 526
Mead  v. Stratton, 87 ** 493
Neu v. McKechnie, 95 ‘ 632
Moriarty wv. Bartlett, 99 ‘* 651
Blatz v Rohrbach, 116 ‘* 450
Reid v. Terwilliger, 116 ‘* 530-
Hall v, Germain, 131 ‘ 536
Dudley vz. Parker, 132 ** 386.
Quinlan wv. Welch, 14r ** 158°
Miscell,

“Warner v.N.Y.C.&c.Co. 44.N.Y. 465

-Laning wv. ‘f fee’ ag ** 52r,
Bricknery. “ se Ag © 672
Chapmanyv.Erie ‘ *' §5 ‘ 579
Millimanz. N.Y.C. * ** 66 « 642.
-Tolman vw. Syr. #98 198
Monk v.TownofN.U.104 “ 552

Jerks. (See Falls, Runover.)

Jumping.
From moving Train,
Morrisonz. Erie &c.Co. 56N.Y. 302

Burrows v. ‘ e630 ff 556

Bucher v.N.Y.C. “ “ 98 * 128

Albert v. Sweet, 116 ** 363
Miscell.

Coulter v. Am.M.U.E.Co. 56 N.Y. 585

“Twomley v. Ct.Pk.&c. “ 69 “* 158

Dyer v.Erie ‘* Jr ‘* 228

Killing. (See Murder.—Accid-
ents resulting in death classified
with thée not so terminating.)

Ladders.

Marsh v.Chickering, ror N.Y. 396
Rexford v. The State, 105 * 229
Cahill v. Hilton, 106“ 512
Landslides.

Gardiner v. Heart, IN.Y. 528
Van Rens. v. Alb.&W.Co.62 '* 65 .

 

Life, (See Saving Life.)
Loads, (See Insecure Loads.)

Locks.

Places.)

(See Canals, Unsafe

Logs. (See Drifting Things.)

Lumber. (See ‘Falls, Piles,
Sweeping Things, Vehicles.)

Machines, and Machinery.

Serv. Injured.
(1) Minors.

Finnerty v. Prentice, 75. N.Y. 615
Hickey v. Taaffe, 99 ‘* 204

6e ce 105 ce 26
Hayes v. Bush &c.Co.102 ‘* 648
Buckley v. GuttaP.‘* “113° “* =§40

Cullen v.Nat.Sheet ‘11g “ 45

McCarragherv. Rogers, 120 ‘* 526
White vw, WittemanCo.131 ‘* 631
Dingley v.StarKn.Co. 134 ‘ 552
Ogley zu. Miles, 139 ** 458
Crown v. Orr, 140 ‘* 450
Marstaller v, Mills, 143 ‘* 398
(2) Other serv.
Crispin v, Babbitt, 81 N.Y. 516
Ryan — v, Wilson, 87 ** 471
Sweeney v. Berlin &J.Co.101 | * 520
Shaw v. Sheldon, 103 ** 667
Cahill _v. Hilton, 1c6 ‘* 512
Hartwig v. BaySt.&c.Co.118 ** 664
Odell wv. N.Y.C. * 120 323
Eldridge v, AtlasS.S. 134 + 187
Harley wv. Buff &c. “142 31
McCue wv. Nat. Starch‘*r42 * 106
Mise. Persons.
Ackert v. Lansing, 59 N.Y. 646
Larmorev.CrownPt.&c.1or ** 391

Mail-bags. (See Missiles. )

Malpractice.

Of Architects. .
Lake v. McElfatricix, 139 N.Y. 349
ACCIDENTS. }

CasEs CLASSIFIED.

153

 

: Of Doctors.
Gates v. Preston, 4IN.Y. 113
Baird v. Gillett, 47“ «186
Carpenter”, Blake, 50 ‘ 696 |
. 75“ 12 |
Blair v. Bartlett, 75 ‘* 150
Doyle v.N.Y.Eye&E.Inf.80 “ 631 -
Laubheim v. De Kon.&c.107. “228
Barton _v. Govan, 116 658 —
Dubois v.Decker, 130 ‘ 325
Allan v.StateS.S.Co. 132 ‘ of
Link v. Sheldon, 136“ I
Of Lawyers.
Bowman z. Tallman, 40 How.Pr. 1
Jaquiss v.Hagner, 72N.Y. 605
Stewart v. Morss, 79 <* 629
Whitney v.Martine, 88 “ 535
Weyerhauserv.Dun, 100 “ I50

Medicines, (See Poisons.)
Messages, (See Mistakes.)
Mills, (See Private Prem.)

Mining. (See Caving in, Ex-
cavations,)

Missiles.
(Bale, Stick, Mailbag.)
Poucher v. N.Y,C.&c.Co. 49 N.Y. 263

Svenson v, At.Mail ‘* “* 57 ‘ 108
Courtney v, Baker, 60 “« 1
Carpenterz.B,&Al.&c.Co.97_ ‘* 494

Mistakes, (See Class D.)

Mobs.

Atl. Dock Co.v.City of B. 3 Keyes, 444
Ely v. Superv.of Niag.Co. 36 N.Y. 297
Atl. D. Co. v. The Mayor, 53 64

Mud. (See Obstructions.)

6s

Mud-Serapers. (See Ob-
$tructions, Piles.)

Murder.

Fraser v. Freeman, 43 N.Y. 566

Navigable Streams. (See
Obstructions, Wires.)

 

Obstructions.
On Highways.
(1) On Land.
(in streets, causing upsets, colli-
sions, or runaways, such as Dirt, ©

Hydrants, Piles, Projections over
Curb, Rails above Level, Rubbish,

Scrapers, Snow-banks, Stones,
Timbers, &c.)
Griffin. v.TheMayor, 9N.Y.456
Ploedt. z. re 55‘ 666
Gorham z. Vill. of Coop.59 ‘+ 660
Cityof R.v. Montgomery, 72 ‘* 65
Lowery v. B’klyn &c. Co.76 “ 28
Ring v.City of Co., 77 ‘ 83
Drinkw. v.Dinsmore, 80 ‘* 390
Wooley wv. GrandSt. &c. 83 ‘* 121
Platz v. City of Co., 89 ** 219
Reining v.City of B., 102 “ 308
| Teets vw. Vill. of M. 106 ‘* 651
Whitney v. TownofTi.,127 ‘* 40
| Schild 7. Ct.Pk.&ic.Co.133 “446
Breil v.City of B. 144 “ 163

(See also Highways.)

(On Sidewalks, causing passers-
by to slip, stumble or fall, such as
Mud, Platforms, Hatchways, Skids,
Stepping-Stones, Water.)

Kessei v. Butler, 53. N.Y. 612
Nelson z. Vill.ofCanis,too “ 89
Welsh zw. Wilson, IOI ‘© 254
Dubois wv. City of K., 102 “ 219
Shock vw “ C., 108 “ 648
Bly v. Vill. of W., 120 “ 506

(See also Highways.),

(2) In Water.
(Dangers to navigation, such as

| Wrecks, Tel. Wires, Spiles, Un-

even Bottoms, &c.

' Merritt v. Earle, 29N.Y. 115
Blanchard v. West.Un.Co.60 ‘* 510
Seaman w.The Mayor, 80 ‘ 239
Barber © v.Abendroth,1o2 ‘ 406

| Cooley « v. CityofAlb. 132 ‘* 145
Vrooman v.Rogers,) 132 ‘* 167
McCaldin ». Parke, 142 ‘* 564
154

On Private Premises.

(To safe passage in Aisles.)
Sherman v. Del. L.&c,Co.1c6N.Y. 542
Hart v.Grennell, 122 ‘* 371

(See also Private Prem., Stairways,
Stores.)
Oil, (See Explosions, Fires.)
Over-driving.
Bertholf v. O’Reilly, 74.N.Y. 509

Over-flows, (See Water.)
Parades, (See Shooting.)

Parcels, (See Falling Things.)

Passing Things. (See
Struck By.)

Percolations. (See Water.)

Piers.

Radway vw. Riggs, 37 N.Y. 256

Clancy vw. Byrne, 56 “ 129

Swords -v. Edgar, 59 “628

Macauley v. The Mayor, 67 ‘ 602
Kennedy v. ee 73‘ 365
Ahern vw. Steele, 115,‘ 203
Cavin v.City of Br., 119 ‘ 630
Ocean. &c.v.Co. Tr. Esp.134 “* 461

(See also Falling Things, Holes,

Obstructions, Unsafe Places, Colli-
sions.)

Pigs. (See Animals.)

Piles. (See Falling Things, Ob-
structions.)

Pipes. (See Falling Things,

Steam-pjpes, Water.)
Place:, (See Unsafe Places.)
Plank-Roads and Walks.

Ireland v, Osw. &c.Co. 13 N.Y. 526
Diveny v.City of EL, 51 ‘ 506
DeForestv, * “U., 69 ‘ 614
Niven 4.“ “Ry, 76 “ 619
Russell v. Vill.ofCanis. 98 “ 496

Jewhurst v. City of Syr., 108 ** 303

CasEs CLASSIFIED.

[Cxass C.

Clapper v. Town of H. 131 N.Y.382
Seymour . Vill. of Sal. 137 ‘* 364
(See also Falls, Holes.)

Planks. (See Falling Things.)

Plaster. (° “ ‘o~)

Platforms, (See Falls, Holes,
Obstructions, Scaffolds. )

Poisons.

Thomas wv. Winchester, 6N.Y. 397
Quin v. Moore, 1S ff 432
Ryall uv. Kennedy, 67 ‘* 379
Wohlfahrt z. Bickert, 92 ‘* 490
Allen v. St.L.5.5.Co., 132 of

(See also Gas, Suffocation, Impure
Water.)

Poles. Falling.

(Such as Flag, Telegraph, Thills.)
English 7. Brennan, 60 N.Y. 609

Ward v. At.&P.Tel.Co.71 ** 84
Flood v. West Un.‘* “131 603
Cohen v. The Mayor, 113 ‘* 532

2 se 128“ 504

Colliding.
(Such as in vehicles meeting or turn-
ing with loads projecting. )
Sheehy v. Burger, 62 N.Y. 558
Hill v. Ninth &c.Co. 10g“ 239
Alex. v.Roch. ‘© ‘ 128 « 13

Private Crossings (See

Runovers )
Private Premises. (See
Bridges, Excavations, Falling

Things, Holes, Machines, Stores,
Tools, Unsafe Places.)

Privys. (See Falling Things.)

Projections, (See Obstruc-

tions.)

 

| Public Crossings. (See

Collisions, Runovers.).
AccIDENTS. |

Cases CLASSIFIED.

 

Public Premises. (See
Highways, Piers, Unsafe Places.)

Quasi Public Premises.
(See Bridges, Carrier’s Premises,
Unsafe Places.)

Rafts.
Logs.)

(See Drifting Things,

Railings, (See Guard-rails.)

Railroads. (See

Roadbeds, )

Bridges,

Rails. (See Bridges, Guard-rails.)

66

(See Cross-walks, Ob-

structions, Switches.)

Rain, (See Storms, Water.)

Reins.
Phillips v. N.Y.C.&c. 127 N.Y. 657
Rescuing.
Persons.
Eckert v. Longs, &c.Co.43 N.Y. 502
Spooner v. Del.L. “ ‘*1r15 * = 22
Gibney v. The State, 137 ‘ I
Property.
Bernhard, Rs.&S.1 Abb.C.A.D. 131
Rexter _v. Starin, 73 N.Y. 601

Wasmer v. Del.L.&c. 80 ‘* 212

Rigging. (See Ropes, Scaffolds.) |

Roadbeds, |

Meehan v.Syr B.&c.Co,73 N.Y. 585
Wasmer v.Del.L.&c. 80 ‘“ 212
Hawley v.North. “ 82 ‘* 370
Payne v.Tr.&B.« 83 “ 572
Mastersonv.N.Y.C. “ 84 ‘ 247
Spooner v.Del.L. “ 115 ‘ 22
Hoyt v.N.Y.L.E.&c.118 ‘* 399

(See Crossings, Derailment, Run-
offs.)

Roads.
Rocks.

(See Highways.)

(See Caving in.)

 

755

Ropes.
Derrenb. v. Leh. Vall.&c. 87 N.Y. 636
Probst v.Delamater,100 ‘‘ 266
Neubauerzv. N.Y,L.E.&c.tor ‘* 607
Miller vw. OceanS,S.**118 ** 199
Palmer v. Del.&H.&c.120 “ 170
Kilroy v.Del.&H. ‘121 «22
Cregan v.Marston, 126 ‘“ 568
Rubbish. (See Obstructions.)
Run-against, (See Colli-
sions, Runovers. )
Run-aways:.

Florses.

Newson v.N.Y.C.&c.Co. 29 N.Y. 383

Gray  v.Second “ * 65 *« 561
Hale v. Smith, 78 * 480
(See also Bridges, Collisions,

Fright of Horses, Run-overs.)

Trains or Cars,
Lacroy v.N.Y.L.E.&c. 132N.Y.570
Wynn v.Cent.Pk. “ 133 ‘* 575
(See also Collisions, Derailment,
Run-overs, Wrecks.)

Run-off, (See Derailment.)
Run-overs, (See also Colli-
‘sions.)

(It is hoped that the sin of coining
this word may beoverlooked in its
convenience. Some ancient soul
coined ** runaway,’’ a modern one
‘trun-out.’”? Some person must
begin. Why not ‘‘runover?” It
was arunaway. It was a runover.
He was a passer-by.)

By Street-Cars.
(Including herein Freight-Cars
drawn by Horses.)
(Children.)

Honegsv. Sec. &c. 2 Abb.C.A.D. 378
Jetterv. N.VY.&H.2 “ 458
Mentzv.Second ‘3 ie 274
Oldfield v. N. Y. & H.&c. 14.N.Y. 310
“756

Cases CrasstFiep.

[Crass c

 

ae

Tucker v. N-Y.C.

 

reg) 308 | Lewis)... aNVLE © 123 6.

1

Mangam v. B’klyn &e. Co. 38N. Y.455.) 3 (Adults, )
Bulger: v. Albany “* “* 42 “ 459 "| Bernhardv. R.S.&c.1Abb.C. A.D. 135
‘Thi vaed “a7 “317 | Cooke. N.Y.C. 1 x 432
Bahrenb.v. Bklyn “ * 56 ‘* 652 | stoves v, Osw. &Syr &c. 18N.Y. 422
Thurberv. Harlem ** * 60 “3260 *Beisegela N.Y.C.&c.Co.34 “ 622
Fallon v.Cnt.Pk. ‘* ‘* 64 ‘* = 13° “ ai ht “6 Qo 9
Furst v. Second * 72 ‘* 542: ze v. © + I4Abb.N.S. 29
Ethering.7.Pros.Pk.“« * 88“ O41 1 Renwicky.N.Y.C. “ Co.36N.V. 132
Motel wv.Sixth ‘ “ gg ‘ G32 | Wilcox v.Rome ‘ 39 ‘ 368
‘Stone =v. Dry D. * “115 1041 Favens v7, Erie 1 ¢* * 41 2096
McCann z. Sixth eerr7 505 f Baxter, v. Troy&B.** * 41‘ 502
Weil =v DryD. “ “119 * 147 | Nicholsonv.Etie “41 « 525
Hogan a. Cnt.Pk. tia 647 - Warner v.N.Y.C. ** ** 44 ‘* 465
Manahanz.Steinw, “ “125 ‘ 760'| Goon vy. Erie 45 * 660
Fenton wv.Second ‘“* 126 ‘ 625 Kelly vw. LongIs.** «* 47 “ 657
Huerzel.v. Cnt. Cr. ‘* “139 “* ae Madden v.N.Y.C.' © 47 665
: | Lev v. Gt.West,*© #6 48 ** 67
i (Adults.) © Maginnis o.N.V.C. CE Cine. FE -
Luby —-v. H.Riv.&c.Co.17N.Y.131 | Welch 2. © & 83% 610
Button v.  ‘ «18 © 248) Hackfordy, «  * * 53 ** 654
Johnson vy, ©“ * 20 65 | *Kissingery.N.Y.H.«* «© 56 « 538
Whitakerv.Eighth “ “ 51 ‘* 295 | *Weber’ v.N.Y.C. ‘ * 58 «& 451
Unger vw. 42d se 66 Sa 407 “ vw “ee 67 6 587
Haggerty v. B’klyn ** ‘* 61 ‘* 624 | Roach v.Flushing‘* “ 58 ‘ 626
Abbott v.Johnst. « “ 80 “ 27 | *McGrathy.N.Y.C.** “ 59 468
McClain vy. B’klyn ** ‘116 * 459 erry 46 «e663 6 BOD
Silberst. v. Houst. “ ‘117 ‘* 293 Calliganv. « Hoe gg bey
Dorman v. Bway “ ‘117 ‘* 655 | Haycrofty.LakeSh. “ 64 ‘ 636
; wee Mitchell v.N.Y.C. «© “* 64 ** 655
By Trains. Day v.Flushing’* ‘* 75 “ 610
‘(x) At Public Crossings. McCarthy v. Lk.Sh.  * 76“ 592
NotTe.—Flagmen cases marked *. | Casey v.N.Y¥.C. ** ** 78 &* 518
! ' Gate “ ae }. | Pakalinskyv. ‘* «Bop gpa
(For flagmen and gates in cases of | Shaw . vu. Jewett, 86 ‘ 616
collision between vehicles and | Smedis v. Bkn.&c,** 88 13
. trains at crossings, see collisions.) | McKeever v, N.Y.C. ‘* 88 ‘ 667
‘ (Children.) Becht. | v. Corbin, 92 ‘* 658
O'Mara v.H.Riv.&c.Co.38 N.Y. 445 | Waldele v. N.Y.C. 95 ee omg
Reynoldsv. N.Y,C, « * 58, 248 Lockwood ». N.Y.LE. & 98 «© 523
Morison vy, |“ * * 63. 643 Greaney , uv. Long Is. ‘101 “* 419
McGoverny. ‘ § 67 * 4iy Cranston v. N.Y.C, &c, ** 103 ‘* 614.
Schwier v. ** = go “ 558 | Sherry v. N.Y.C. “104% 652
Dowling v.  **  & * go! 670 | Tozer. v FoR) 6 619
Wendell v © ** gt * 420 | Woodwardv.N.Y.L.E. ‘106 * 369
*Houghk.v.Del.&H.** “ 92 * 219) Young ov. r07 B00
Barry “7. N.V.C. & © ga: «6 289 | Blaiser vw TIO 638
Cumming v. B’klyn * ‘104 ee Heaney., v, Long Is. ‘¢ 112 '* 122
Cuming x = “109 gg Palmer =v. N.Y.C. ‘fara “234

. 496
AccIDENTs. |

Caszs CLASSIFIED.

757

 

fOldenb.v.N.Y.C.&c.Co.124 N.Y. 414

Wiwiro, v.Lake Sh. ‘124 ‘* 420
+Daniels v. Stat. Is. “¢125 ‘* 407
Rodrian v. N.Y.N.H. ‘125 ‘* 526
Mehegan v. N.Y.C. “125 “ 768
McNamara v. N.Y.C. ‘6136 ‘ 650
Doyle v. P.&N.Y. ‘139 “ 637

(2) At private crossings, alleys,
paths, farms, etc.

(Children.)
Byrne v. N. Y.C. &cCo. 83 N.Y. 620

oe UV a6 “ce os 94 rf 12

se og, te “Tog 362
*Houghk.v.Del.H.‘* ‘* g2 ‘* 219
Barry v.N.Y.C. “© ‘© 92 “ 289
Swift wS. 1. ee 6 230 645

(Adults.)

Cordell v.N.Y.C. 64 * 535
Ss v. os jo ‘* Ig

“ce Ue oe 75 ce 330

ec uv, “cs 79 ce 636
Sutton v. “ 66‘ 243
Vandewater v.N.Y.&N.E. 135 ‘© 583

(3) At other places.

(Passengers before getting on.)
Terry wv. Jewett, 78 ** 338
Scott v. Penn.&c Co. 130 ‘ 679

(Passengers after getting off.)

Kellery.N.Y.C.&c,Co.2Ab.C, A. D.480
Dickens 7. a 23 N.Y. 158
6 v. 1 Abb. C.A.D. 506
Gonzales v. N.Y.&Har. 38 N.Y. 440
a vy. *  * 39 How. Pr.407
VanSchaickv.H.R.&c.Co. 43 N.Y. 527

Hoffman v.N.Y.C.** 6°75 ** 605
Brassel v. ‘ ‘* * 84 ‘* 241
Murphy wv “ ‘ 88 * 445
Archer 7. N.Y.N.H.‘+ ‘106 “589
Parsons wv. N.Y.C. “ “113 ‘* 355
Goldberg vw ‘* te 467330 (6 561

(For.accidents to persons while get-
ting on or off cars, see Falls of
Persons.)

 

(Servants—while repairing cars.) |

Besel v.N.Y.C.&c.Co.70 N.Y. 171
McCork wv. LE.“ * 84 (77
Abel v. Del.L. ** ‘103 ** 581

es ow “6728 662
Murphy v.N.Y.C.** **118 ** 527
Corcoran v. Del. L. ** “126 “ 673

(Servants—while inspecting cars.)
Cone v. Del, L.&c,Co.81 N.Y. 206
Potter wv. N.Y.C. ‘* “136 * (77

(Servants—Miscellaneous. )
Coon v. Syr.U, &c.Co. 5 N.Y. 492

Russell v. Hud.R.* * 17.‘ 134
Boldt v. N.Y.C.* 18 432
Sammon v. N.Y.H.“ “ 62 “ 251
- Bradley v. N.Y.C. “* ‘* 62 ** = 99
Rima ~ v. Rossie ‘* ‘120 433
Reichel v. N.Y.C. ° ‘130 ‘ 682
Borden wv. Del. L. ** “131 ‘* 678
Morgan v. H.R.OreCo.133 ‘‘ 666
(See also Appliances, Coupling

Cars, Falls.)

(Other persons.)
Including children, trespassers, &c.
Stinson v.N.Y.C.&c,Co.32 N.Y. 333

Nicholsonv. Erie ‘“ ‘* 41 ‘** 525
Harty wv. C.R. of N.J. 42 “ 468
Eckert v. L. I. &c.Co.43 ‘* 502
Prendegastv.N.¥.C.** ** 58 ‘* 652
Kenyon #7 “ “ * 76 ‘ 607
Chrystal v.Tr.&B.«¢ “105 ‘ 164

“cc wu eo 6G 124 et 519
Sullivan vw. Tioga‘* “112 * 643
Scott v, Penn. ‘* ‘*130 ‘* 679
Quinlan =v. Welch, 14r ** 158
Flynn v. Cent.&c.Co.142 “439

By miscellaneous vehicles,
(Children. )
Knupfle v. Knick. Ice Co. 84. N.Y. 488

Murphy z. Orr, g6 “14
Moebus v. Herriman, 108 ‘' 349
Birkett v. Knick.IceCo.110 ‘* 504
Barrett v. Smith, 128 ‘* 607
(Adults.)
Phelps v. Wait, 30N.Y. 78
Norris _v. Kohler, 41 “© 42
Barker v. Savage, 145 ‘* 191
Tracy wv. Kuntz, 47 ‘** 663
 

758 Casrs CLassmrigp. [Crass C,
Belton v. Baxter, 54N.Y.245 | Set-back. (See Sewage.)
& Vv. 58 “ 4tr .
Water.

Brook. Schwerin, 54 “ 343 Sewage. (See Sewers, Water.)
Moody v. Osgood, 54“ 488 | Sewers.
Sheehan v. Edgar, ga O3r Banton v.City of Syr. 36N.Y. 54
Maximil. v. The Mayor, 62 ‘* 160 McCarthy 7 wa 46“ 194
Smith v.CityofR. 76 ‘* 506 Nims v, The Mayor, 59 ‘ 500
Groth v. Washburn, 89 ‘ 615 Duryea ». 6 62 * so2
Crocker v. Knick.IceCo.92 ‘* 652 Smith a, ia 66 * 295
Stroher v. Elting, 97 “102 | Hardy v.Cityof Br., 90 ‘ 435
(See also, Appliances, Blows, Brakes, Murphy 2. a 98 * 642

Clothing caught, Collisions, Coup. es a so 118 ‘575

ling Cars, Falls of Persons, Sietere @, i lor “136

Fences, Ice and Snow, Jumping, Ballou v.The State, 111 *' 496

Timber-ends.) Kosmak v. The Mayor, 117 ‘* 361
Sash, (See Falling Things.) Stoddard yv. Vill. of Sar. 127‘ 261

Saving Life. (See Rescuing.)
ee Prop. “ et
Saws.

Ackert v. Lansing, 59 N.Y. 646
Webberv. Piper, 1og ‘* 4096
Ogden v. Miles, 139 ‘* 458

Scaffolds, Platforms, ‘Stools”
aoe.

Laning vw, N.Y.C,&c.Co. 49N.Y. 521

Bricknery, ‘“ * 4g “ 672

Coughtry v. Globe W, “* 56 * 124
Manning v. Hogan, 78 * 615
Devlin uv. Smith, 89 ‘* 470
Benzing v.St’way&Sonsior ‘+ 547
Neubauerv.N.Y.L.E.&c.101 ‘* 607
Judson v. Vill.of Ole. 116 ** 655
Murray  v. Usher, 117 ** 542
Hogan vw. Smith, 125% 774
Butler v. Townsend, 126 ** 105
Davidson v. Cornell, 132 * 228
Kaarev. apey St. &1.Co.139 * 369
Scalding.

Homer v, Everett, ot N.Y. 641

(See Burns, Fires, Holes.)
Scrapers. (See Obstructions.)
Searches.  (Sce Mistakes.)

Seats, (See Ejection of Pass,
Falls sué nom, While Riding on
Trains.)

 

(See also Culverts, Excavations,
Flooding.)

Shafts.

Harris v. Perry, 89 N.Y. 308

Cunningh. v. Bay St. &c. 93 ‘* 481

Stringhamv. Stewart, 100 ‘* 516
as v. Hilton, rr «188

ae v, Stewart 22 Abb.N.C.281

McRickardz, Flint, 114.N.Y, 222

Tousey v. Roberts, 114 6 312
(See also Hatchways.)

Shafts, Revolving. (See
Machinery.)

Shafts, Wagon, (See Thills.)

Shops. (See Stores.)
Shooting.

Castlev. Duryea, 1 Abb.C.A.D. 327
Sidewalks. (See Highways.)
Skids. (See Falls.)
Skylights. (See Falls.)
Slipping. (See Bridges,

Coal-Holes, Coupling Cars, Falls,
Ice and Snow, Stairways.)

Smoke. |
Heaney v.Long Isl.&c.Co, 112N, Y.122
Swift v. Stat. Is. «* 123 « 645

| Snow. (See Ice and Snow.)
 

AccIDENTs. ] Casks CLASSIFIED. 759
Snowbanks. Gee Obstruc- | Storm, (See ‘Wind and
tions.) Storm.”)
For Freight injured, see Class D.
Sows. (See Animals.) t . , Be
Streets, (See Highways, Un-

Sparks. (See Cinders, Fires.)
Spiles. (See Obstructions.)

Splinters.
Taylor v, B’klyn El.Co. 119 N.Y. 561

Stages. (See Falls, Up-sets,
Vehicles.) :

Stairways.
Crocheron zv, NorthSh. &c.56 N.Y. 656

Palmer v.Dearing, 93 “ 7
Barker v.Paulson, 116 ‘* 660
Larkin —_v. O’Neil, Ifg ‘* 227
Taylor v BilynELCo.11g9 “ 561
Peil v. Reinhart, 127 ‘* 381
Hilsenbeckv. Guhring 135 ‘ 674
Sterger v. VanSicklen, 132 ‘* 499

(See also Falls, Holes, Ice and
Snow, Unsafe Places.)

Starts of Cars, Stages. (See
Falls.)
Starts of Machinery. (See

Machines.)

Steam.
Reiss v. N.Y.Steam Co, 128 N.Y. 103
(See Scalding, Explosions, Holes )

Steamboats. (See Vessels.)

Steam Pipes. (See Explo-

sions, Steam.)

Steps. (See Falls, Stairways.)

Sticks. (See Missiles.)

Stones. (See Falls, Obstruc-
tions.)

Stools. (See Platforms.)
Stoops. (See Steps.)

Stores. (See Falls, Obstruc-
tions, Stairways.) ,

 

 

safe Places.)

Struck (by Miscell. Things,
moving or stationary.)

Passengers.

(1) By Passing cars.

Dobiecki v. Sharp, 88 N.Y. 203
Davenp.v.B’klyn&c.Co,100 * 632
Black wv. * «© JOB ** «640
Craighead z. * sets Tag ff 391

(2) Elbows struck.
Holbrook v. Ut.&S.&c.Co.12 N.Y. 236

Dale v. Del. L. ** ** 73 +. 468
Hallahan v.N.Y.L.E. ‘f102 ** 194
Breen uv. N.Y.C.&e.**109 ‘* 297
Francis v,N.Y.St.* “114 ‘* 380

(3) By Ropes.
Miller v. Ocean s.S.Co. 118N.Y. 199
Palmer v. Del & H. ‘* 120 ‘'* 170

(4) Miscell.
Columns, Doors, Gates.
Weber. v. Herk.&c.Co.109 N.Y. 313

Colemanyv. Sec. ‘ ‘* 114 ‘* 605
Feeney v.Longls.“ ‘* 116 ‘* 379
Baker v.Manh. “ * 118 ‘ 537
Butler vw * se ee pag 8 Ary,

(See also Collisions, Missiles, Tim-

ber-ends. )
Servants,

By Roofs, Bridges.

Gibson w.Erie &c.Co, 63N.Y.449
Hunter v. N.Y.Os. ‘* “116 ‘ 678
Williamsv. Del. L. ** 6116 ++ 625
HE ie HE te eeyam 6 1643
Wallace v.Cnt.Vt. “ 138 ‘ 302
Others. a

Sewell w.CityofCo. 75N.Y.45

Francis, s¢pra, Elbows struck.

Embler v. Town of W. 132N.Y. 222
(See also Collisions, Explosions, Fall.
ingThings, Run-overs, Timber-ends. )

Stumbling. (See Fails,
Obstructions, Slipping.)
CasEs CLASSIFIED.

[Crass C.

 

760

Subsiding of Grain. (See
Caving in.)

Suffocation.

Curran v. Warren Ch. &c. 36 N.Y. 153

Lee v.TroyCit. ‘ 98 “ 115

(See also Caving in.)

Swinging Things. (See
Struck by.)
Sweeping Things.
Timber-ends.)

Switches. (See Appliances,
Obstructions, Rails.)

Tanks, Vats, Cisterns.

51 N.Y.150
67 “cc 366
te 647

Telegrams. (See Mistakes.
Class D,)

(See

Fiske v. Bailey,
Victory v. Baker,
Riceman v. Havemeyer, 84

Telegraph woles. (See
Poles.)
Telegraph wires. (ce

Obstructions. )

Theft.
Passenger's property.
Weeks v, N.Y.N.H.&c.Co.72 N.Y. 50

Carpenterv. ‘ cE EE 2h ES 153
Guests’ property.

Purvie v. Coleman, 21N.Y.111
Hyatt v. Taylor, 42 ‘ .258
Ramaley v.Leland, 43 ‘ 539
Wilkins —_v, Earle, 44 ‘“* 172

“ce vy 46 “e 358
Bendetson v. French, 46 ‘* 266
Kellogg” v.Sweeny, 46 ‘ 291
Hancock v. Rand, 94 “ I

Customers’ property.

Bunnell — v. Stern, 122 N.Y. 539
Bailors’ property.
Schwerin v. McKee, 51 N.Y. 180
Claflin uv. Meyer, 75 ‘* 260
Jones v. Morgan, go ‘ I

Freight. (See Class D.)

 

Thills.

Thrown Down. (See Cloth-
ing caught, Falls, Hooks, Upsets.)

Thrown Off. (See Clothing
caught, Falls, Hooks, Upsets.)

(See Poles.)

Timber, Rotten. (See Decay.)

Timber-Ends.
sub nom, Colliding.)

(See Poles,

Toboggan Slides. (ce

Unsafe Places.)

Tools. (See Appliances, Saws.)
Towing.
Alexander v. Greene, 7 Hill 533
Wells, v. St. Nav. Co. 2N.Y. 204
“cr uv, “cc © QB ce 375
Haley v. Earle, 30 «208
Merrick v. Van Santv. 34 ‘* 208
Milton v. Hud. R. St.37 “210
Bissell uv. Torrey, 60 ** 635
White v. Old Do.&c.Co.102 ‘* 660

(See also Collisions.)

Tracks, (See Car coupling,
Derailment, Obstructions, Rails,
Roadbeds.)

Trains. (Sce Collisions, Derail-

ment, Runaways, Runovers,
Vehicles.)
Trap-doors. (See Falls,

Hatchways, Shafts.)

Trenches.
Excavations.)

(See Caving in,

Trestles.
Platforms.)

(See Draw-bars,

Trucks, (See Falls, Obstruc-
tions, Stores, Vehicles.

Tubs. (See Falling Things, Vats.)

Tunnels, (See Struck by.)
 

ACCIDENTS. ] CasEs CLASSIFIED. 761
Unsafe Places. Vessels.
Private Premises. Clark ov. Un. F’y Co. 35 N.Y. 485

Ryan v. Fowler, 24. N.Y. 410
aAckert v. Lansing, 59 ‘* 646
Ryan v, Wilson, 87 “ 471
Larmore v.Cr.Pt.&Co. 101 ‘ 391
Demarest v. Flack, 128 ‘* 205

Canal Locks.
Robinson v.Chamberlain 34.N.Y. 389

FultonF.1I.Co. v. Baldwin 37 ‘* 648
Johnson vw. Belden, 47. ‘* 130
See also, Excavations, Scaftolds,
Ash-pits, Falls, Shops,
Bridges, Flagstones, Sidewalks,
Coalholes, Highways. Stairways,
Coupling carsHoles, Streets,
Crossings, Mines, Tracks,

Crosswalks. ObstructionsTunnels,

Depots, Plank walks, Vehicles,
Elevators, Roadbeds, Vessels.
Upsets.

Coon v. Knapp, 8 N.Y. 402
Caldwell v. Murphy, ir ‘* 416

Buffet v. T’y B.&c.Co. 40 ‘* 168
Voak v. North. C. 75 ‘* 320
Rembe v.N. Y.Ont. 102 ‘* 721
Breil uv. City of B., 144 ‘ 163

{See also Collisions, Embankments,
Excavations, Holes, Obstructions.)

Vats, (See Tanks,)

Vehicles.

Defective.
Powers v.N.Y.L.E.&c.Co.98 N.Y. 274
Brophy v. Bartlett, “708 «+ 632
Hoyt v.N.Y.L.E.&c.118 “ 399

{See also Appliances, Brakes, Col-
lisions, Coupling Cars, Derail-
ments, Explosions, Falls, Ice and
Snow, Stairways. )

Improperly Loaded.
Bushbyv.N.Y.L.E.&c.Co.107N. ¥.374
Ford v.LakeSh. * 117 ‘ 638

“c D. se “ 124 * 493

 

Wyckoffv. Qu.Co.F.Co, 52 “ 32

(See also Explosions, Falls, sé.
nom., Of Things on Shipboard,
Guard-rails, Wrecks.)

Wagons. (See Collisions, Run-
overs, Vehicles.)

Wagon Shafts. (See Poles.)

Walls. (Sce Falling Things. )

Water.
Drainage.

(1) On to adjoining land.

Vanderwielev. Taylor, 65 N.Y. 341
Gould vz, Booth, 66 ** 62
Byrnes v.City of Co, 67 ‘* 204
Jutte v. Hughes, 67 ‘* 267
Lynch v. The Mayor, 76 ‘* 60
Vogel vz, He gz ‘* 10
Watson v. CityofK. 114 “ 88
(2) In to streams,
Waffle v.N.Y.C.&c.Co.53 N.Y. 11

Chipman z. Palmer, 77“ 51
Noonan wv.City of Alb. 79 ‘* 470

Diverting Streams,
Weed wv. N. Y.&H.&c.Co. 29 N.Y. 616

Cott v. Lewiston, 36 214
SilsbyMfg.Co, v.State, 104 ‘* 562
Van Wycklen v.C.of B.118 ‘* 424
Covertv. Cranford, 14r ‘* §21

Drinking Water.
Dannaher z. City of Br. 119 N.Y. 241

Over fiows.
(1) Dams, breaking or overflowing.

The Mayorv. Bailey, 2 Den. 433
Pollett v. Long, 56N.Y. 200
Perkins v.The State,113 ‘* 660
Benedict vv. as 120 ‘* 228
Spencer vz. fe 135 ‘* 619

(2) Flooding from R. R.
Embankments, &c.
Brownv.Moh.&c.Co.1How.App.C.66

“oy, Tn 4 ag 123
"762

Cases CLASSIFIED.

[Crass C.

 

Phillipsv. Terry, 3 Abb,C.A.D. 607
Brown vw. Cayuga&c.Co,12 N.Y, 486
Bellingerv. N.Y.C. “ ** 23 42
Plate Di EE OME ME AS Ae
Moyer vw ‘ ‘ * 88 * 351

(3) Flooding from Canal Works.

Sipple v. The State, 99N.Y. 284
McDougall z. ef 10g. ** 73
Bidelman v. “8 Ilo ‘f 232
Sayre v. a 123 ‘* 291
Stone v. 138 “ 124
(4) Flooding from Municipal
Improvements (so-called. )
Conrad w. Vill. of Ith. 16N.Y.158
Paine v. “ ‘ Del, 116 ‘* 224
Atwater v) “ ‘* Can. 124 ‘* 602
Garrett vu. ** © 135 ‘© 436

(See also Defective Pipes, infra
(8)-)
(5) Flooding Sidewalks.
Bly v. Vill. of Wh. 120N.Y. 506

(6) Sewers. '
Gray v. City of Br. 2 Abb.C.A.D. 267

Mills v. se 32.N.Y. 489
Barton vu, CityofSyr., 36 ** 54 |
McCarthy v. ts 46 ‘* 194
Smith v, The Mayor, 66 ‘* 295
Kosmak vw, ts 117 ** 361
(See also Sewers, page 758.)
(7) Rain.
Gilbert wv. Beach, 16 N.Y. 606
Doupe_ v. Genin, 45 ‘ Ii9
Slater v.Mersereau, 64 ‘* 138
Morton v. Thurber, 85 “* 550
(See eg Miscell., izfra (9).)

(8) Defective Pipes, &c.
Moore v. Goedel, 34. N.Y. 527
Ham v. The Mayor, 7O ** 459
Vann zw. Rouse, 94 “ 401

Jenny v. City of Br. 120 * 164

(9) Miscell.
Mairsv. Manh. R. E. Ass. 89 N.Y. 498
(See also Rain, supra (7).)

 

Percolating.
Selden  v. Del.H.&c.Co. 29 N.Y. 634
Heacockv. The State, 105 ‘* 246
Reed wz ee 108 ‘° 407
,(See also Storms.)

Wells. (See Caving in.)
Wheat. “ 7
Wheels, Bursting.
Loop v. Litchfield, 42 N.Y. 351
Wind and Storm.
Moore’ v. Westerwelt, 21 N.Y. 103

“ee “ce 27 “ec 234
Nicholson v. Erie &c.Co, 41 ‘* 525
English v, Brennan, 60 ** 609
Morgan vw. Crocker, 62 ‘* 626
Sturm v. At.Mut.Ins.Co.63 “ 77
Ward v.At.&P.Tel. “ 71 ** 81
Stilwell v. Priest, 85 ‘* 649
White v.Old Dom.&c.Co.102  ** 660
Websterv.Rome “ ‘115 “ 112
Smith v.N.Y.C. '¢ «© 118 «645
N.Y.L.E-&c.zv, Atl. Ref.‘¢ 129 ‘597
Connolly v.Manh.&c. “142 “ 377
Williams v. Hays, 143 ‘+ 442

(See Class D. for Freight injured.)

Window-Sash, (See Falling
Things.)

Wires. (See Obstructions.)

Wrecks.

Of Vessels.
Merritt v. Earle, 29 N.Y. 115
Taylor v. At.Mut.Ins.Co.37_ «275
Marks v.H.Riv.Br. ‘103 ‘ 28
Williams v. Hays, 143 © 442

Of Trains.
N.Y.L.E.&c.v.At.Ref.Co.129N. Y.597
(See Collisions, Derailments, b-
structions, Timber.)

Wringers. (See Parcels )
Freicut, &c, ] Caszs CLASSIFIED. 763

 

CLASS D.—UNDER CONTRACT ONLY.

A classification of cases involving questions of negligence
arising only in actions ex contractu.

In this list there have been inserted nothing but cases upon contracts for
carriage of animals, goods, express parcels and telegrams. Questions
growing out of the relations of executors, bailees and other trust or
contractual relations will be so easily found under their appropriate headings
in Chaps. IT and III (see pp. 590, 631) and other chapters, that their repetition
here is unnecessary.

All the cases falling under the headings mentioned on page 559 are given,
whether they involve negligence or not, for the reason that decisions as to
negligence undersuch contracts very often depend upon the effect of prior
opinions as to the meaning of a clause in a bill-of-lading, ticket, express
receipt or telegraph blank.

fhe student who wishes to master the subject needs therefore to be
directed to all the cases.

Here is an illustration of the truth of the theory suggested in the note to
§ 34 of the Code, (p. 492) that the common law distinction between contract
and tort is not well founded, in so far as it rests upon the assumption that
the guilt of him who commits a tort differs in kind, rather than in degree,
from the guilt of him who breaks his promise.

The very fact that our courts have not been able sharply to pass upon the
question whether a suit against a carrier by a passenger to recover damages
for an injury while travelling, is ex contractu or ex delicto, (see note to § 30,
p. 492, and cases cited in Chap. X, sad zom., Contract or Tort), the fact that
they sometimes say it is both, and also the fact that under definite written
contracts, such as bills-of-lading, questions of negligence keep cropping up,
andare treated, sometimes as ex delicto, sometimes as ex contractu, these things
demonstrate beyond a peradventure that the ancient distinction of the com-
mon law between tort and contract can no longer be maintained. Sharp
lines, which may be easily drawn in simple states of life are impossible
when civilization grows complex. In ascertaining what is a man’s duty toa
fellow-man, it is really immaterial whether it grows out of his general social
relations, or special contractual relations. He must pertorm that duty. He
must be punished if he fails to performit. Itis only when the guantum of
punishment is to be determined, that we need to concern ourselves with
the guantum of guilt.

There is a still wider view of the subject. Law should be regarded
from the standpoint of duties rather than that of rights. We smile now at
Blackstone’s fanciful division of his commentaries, into rights and wrongs,
rights of persons and.rights of things, As the world grows in moral consci-
ousness, it is felt that instead of being most anxious about obtaining our
rights from others, we should be most concerned about performing our
Cuties to others. When the time comes, as in the evolution of morality 1t
will, in which men will be solicitous to do their duty to others, there will
be no trouble about their obtaining their rights from others.
764

Casrs CLASSIFIED.

[Crass D.

 

Perhaps, it is not too much to indulge in a forecast, that if the twentieth
century shall have its great text writer, as the seventeenth had its Coke, the
eighteenth its Blackstone, and the nineteenth its Kent, he will treat of duty.
He will need to have more than merely legal training for so compreheisive

a theme.

It would include man’s relations to his Creator on the one

hand, and to the brute creation on the othér, as well as. to his fellow-man.
Science is beginning to join hands with religion and jurisprudence in

demonstrating that man has sprung from a Divine Source.

The next cen-

tury will doubtless witness the argument for such an origin clinched by

Science.

«‘A Commentary on the Law of Duty.”

THE HEADINGS ARE AS FOLLOWS:

Animals.
Gouds.
Delays.
Loss by Fire.
Other Injury to
or Loss of.

Animals.

Clarke
Harris wv. N.Ind.* ‘* 20
Keeney v.Gr.Tr. ‘! ‘ 47

Penn v, Buft. & E.“* 49
Cragin v.N. ¥.C. “ 51
Bills vy N.Y.C. * 53

se uv. “ “6 84
Baird wv. Daly, 57
Harris v. Panama Co.58
Maynard v. Syr. B. “71
Wilson v.N.Y.C. ‘ 97
Zimmer v. N.Y.C. ‘137
Goods.

Delays.

McCotter wv. Hooker
Wibert vw. N.Y.E.&c.Co.12
Blackstocke. ‘<< ‘© 20
Burtis v. Buff. ‘© 24
Hanulton vw. McPherson 28
Read v, Spaulding 30
Starbird v, Barrows 38
ce UY, ce

43
v.N. ¥.C.&c.Co.47

Ward

Holden vy. “ © 54
Irwin vw “ «59
Acheson wz. si 6k GT

os

8N.Y.

6c

‘6

6c

“cs

“ce

v. Roch. &c.Co.14.N.Y. 571

232
52
204
61
608
5
236
660
180
87
460

497
245

48
269

72
630
230
200

29
662
653
652

 

Goods (contin’d).
Disputes as to Deliv.
Miscellaneous.

Baggage.

Express Parcels.

Telegrams.

Sherman

Hill v. Syr.B.&c.Co.73*
Tierney v.N.Y.C.% 76 «
Livingstonev. ‘© ‘ 76
Nicholas v. fh Ef Bq) “fs
Geismer v. AG 02, Se
Waite VY se EE onto) “BS
Jennings wv. Gr.Tr. * 127 ‘¢
Robertson v. Nat.SS.‘* 139

Loss by Fire,

Miller v. 8. Nav.Co, 10oN.Y
Dorr vw N.J.Ste mr
Goold v. Chapin 20

McDonald wv. West.&c.Co.34 **

Steinway v.Erie “ 43 «
Rogers v. Wheeler 43
Lamb wv. Camd.&c.Co.46  «

Babcock v. LakeSh.‘* 49 +
Rus’1IM.Co. v.N.H.St.** 50
Knowlton wv. Prov. “© 53 «
Condict v.Gr.Tr. ** 54 *
Shelton v. Mer. D.‘* 59 «€
G.F.Ins.Co.v, Mem, “ 72 «&
Holsapplev. Rome « 86 «
Whitworth v. Erie «* 87 «©
Platt v. Rich. “ 108 «€
Tanner v.N.Y.C. ** 108 «
Draper v. Del.&H.¢ 118 «&

L.&L.F.In.Cow.R. « 144 «

When that day is reached, then may come the crowning treatise,

v. Hud.R.Co.64.N.Y, 254

351
305
631
370
563
635°
438
416

+431

485
259
497
123
598
271
491
12I
76
500
258
go
275
413
358
62
118
200
 

Northrup v. $.B.Co.3Abb.C.A.D. 386

Green v. Clarke, 12 N.Y. 343
Guillaume v.Ham.&c.Co.q2 ‘* 212
Redmond. Liverp. “ 40 ‘ 578
Hedges v.H.Riv. “ 49 ‘' 223
Zinn v.N.J.Stb. *§ 49 “ 442
Viner v.N.Y.AL “ 50 ‘S23
Price v. Osw.&S8.Co. 50 ‘* 213
Gleadell v.Thomson, 56 ‘ 194
Canfield v.B.&O.&c.Co.75 ‘* 144

oe oe ee 68 93 oe 532
McKinney vz. Jewett, go ‘* 267
Guillaumev.Gen.Tr.Co.100 ‘* 491
Furman vz. Un.Pac. &c. ‘106 ‘* 579
Tarbell v. Roy.Ex. ‘* “110 ‘* 170

Miscellaneous.

Am.Ins.Co.z, Bryan, 26N.Y. 563

Simmons v. Law, 4Abb.C.A.D. 241
Farm. &c.Co.v.Erie&c.Co.72 N.Y. 188

Catlin v. Adirondack ‘ 81 “ 639
Baggage.
Powell vw. Myers, 26 Wend. 591

Hart v. Rens. & $. &c.Co. 8N.Y. 37

 

 

 

 

 

Express Parcels.

Rosebr.v. Dinsm., 4 Abb.C.A.D.

Witbeck v. Holland, 45N.Y.
Thompson v. Fargo, 49 ‘“
Cochran v. Dinsmore, 49 ‘
Belger v. 6 5r
Magnin ». ee 56 *
“ee “e 62 6
oe ee 70 “
Westcott v. Fargo, 6r

Telegrams.

Leonard v. N.Y.A.&c.Co.41 N.Y,

Rittenhouse v. Ind.L.ofT. 44
Baldwin v.U.S.Tel. “* 45
Elwood v.W.Un.T.‘ 9 45
Breese v.U.S.Tel. “ 48
Lowery v. W.Un.T.Co. 60
Young wv. s «65
v.D.U.S.C. 86

Hart
Kiley v.W.Un.T.* 109
Pearsall v. wo 124

Freicut, &c. | CasEs CLASSIFIED. 165
Injury to, or loss of, fromother causes. Campbell v, Perkins, 8N.Y- 430
Palmer v. Lorillard 16 Johns 348 Murphy v.Com’rsofEm.28 ‘134
Sewall a Alien A Wendaeg | ROME. webs Geteds Sas
Am.Ins.Co. v. Ogden 20 * 287 Dexter v.Syr.B. “ 42" 326
Slocum.  % Haivehild » Hills | Dieser Podd, 43 ‘* 264
French v.B, & E. Co.2Abb.C.A.D.196 Chamberl. v. West.Tr.Co.44 ** 305
Hathorn _v. Ely DBN.Y. 78 | Burnell  N.Y.C. &c.s 45 “184
Michaels NVC Meeps | Rosen Peo, ae ae
Hunt v. Mich.S.“ 37 ‘* 162 McCormack vy.“ ** 4g“ 303
Allen v.Sacrider 37 ‘* 341 7 1) SES ae
Grosven. v.N.Y.C.&c.Co.39 “ 34 | p; a Eg 65
Bostwick wv.Balt.&O.° 45 ‘* 712 nated oe ENE . 49 : 546
Babcock v.LakeSh.‘* 49 ‘ 491 - nor % e 7 53 363
Goodwin v.B.&0.&c.4¢ 50 ‘* 154 ena iverp.&c. “ 57 I
McAndrew v. Whitlock 52 ‘ 40 Matson v.N.Y.C. “ * 57 § 552
Schwinger v. Raymond 83 ‘ 192 | 5. ‘ a : 76 ; 381
‘sc v. «cc 105 ** 648 oe uU. ‘ 67 s II
Giuterm.z.Liverp.&c.Co,83 ‘* 358 S| : ue me Ty aay
Salk Gea MO gone od | ee Oe 208
Scheu v. Benedict 116 ** 510 ream v. Chittenden, 69 a 525
Wheeler v.Ocean &c.Co.125 ‘155 a an, @, Skerard, 73 329
Rathbone v. N.Y.C.* 140 “ 48 urtis wv. Del.L. &c.Co.74 ‘116
Isaacson v.N.Y.C, ‘* “ 94 ‘* 278

Disputes as to Deliveries. Carlson v. Oceanic'* **109 * 359

118

13
188
249
166
168

35
410
542

544
263
744
549
132
198
163
633
231
256
766 CasEs CLASSIFIED. [Cxass E.

 

Omitted from ‘‘ Miscellaneous” on preceding page.

Merc. M. Ins. Co. wv. Calebs, 20 N. Y., 173
Merritt v. Earle, 29 ‘ IIS
Artic FireIns.Co. v, Austin, 69 ‘* 470

CLASS E.—VERDICTS.

A classification of bodily injuries, and the amounts awarded
therefor.

(1) The verdicts have been obtained from the appeal books in those
instances where the amount is not stated in the report.

(2) These verdicts, having run the gauntlet of the General Term, must be
accepted as neither excessive nor inadequate.

Now that the $5,000 limit in death cases has been abolished, verdicts
for causing death can not well be appealed to for purposes of comparison,
except perhaps in cases of very young children.

It was said by the Supreme Court in Houghkirk v. Del, & Hud. C.
Co. that the opinions of the Court of Appeals had made it impossible
for the Supreme Court to say that a verdict in any death case was
excessive. The Court of Appeals repudiated the notion that its opinions
involve any surrender of the right of the General Term to set aside such
verdicts. (See Part I, p. 269, note.) :

(3) In comparing their amounts, it should be remembered that medical
and other expenses often enter into them.

(4) The numbers in the left hand column are the pages of Part I, where
the verdicts are stated. The numbers in the right hand column are the
verdicts.
 

VERDICTS. | Casrs CLASSIFIED. 167
GROUPED UNDER THE FOLLOWING HEADINGS :
I.—BODY OF ANOTHER.
Death. Loss of Services

Man. |

Woman, |

Child. Servant.

II.—BODY OF PLAINTIFF.
st. Parts injured.
Abdomen. Foot. Nose.
Arm. Groin. Pelvis.
Ankle, Hand. Priv. Parts.
Back. Head. Ribs.
Brain. Hip. Shoulder,
Cheek Bone. Internal Inj. Side.
Chest. Jaw. Skull.
Collar Bone. Joint. Spine.
Ear. Knee. Teeth.
Elbow. Leg. Thigh.
Eye. Lungs. Toe.
Face. Neck. Womb.
Finger. Nerve. Wrist.
Miscellaneous.
2d. Nature of Injury.

Abscess. Epilepsy. Rupture.
Amputation. Erysipelas. Scalds.
Bitten. Frozen. Sight impair.
Breaking Bones. Health impair. Shock.
Bruises. Hearing ‘ Sores.
Burns. Inflammation. Sprains.
Child-birth, Miscarriage. Stricture.
Contusions. Nervous Pros. Tumor.
Crippled. Pain at Child Birth. Ulcer.
Cuts. Paralysis. Urinary.
Disabled. Pleurisy. Uterine Inj.
Dislocation. Poisoned. Miscellaneous.

J,—VerpIcTs For InJuRigs TO Bopy oF ANOTHER.

Death. See next page.
 

 

 

 

768 CasEs CLASSIFIED, (Crass E.
Death. Of Man.

139, $5,752.47 | 94, 405, $2,750.00
151, 5,281.02 | 140, 351, 2,600.00
287, 5, 100,00 | 54, 134, 172, 194, 297, 313,

30. 32, 40, 41, 43, 81, 83, 348, 350, 352, 374, 402,

84, 97, 129, 132, 133, 403, 2,500.00

139, 159, 181, 195, 197, 437, 2,400.00

215, 217, 227, 229, 241,

254, 255, 268, 287, 312, 449, 2,300.00

313, 352, 3535 384, 402, 244, 2,125.00

404, 411, 413, 413, 415, 49, 2,000.00

416, 458, 459, 460, 5,000.00 349, 1,819.21
347, 45599-99 | go, 1,800. 00
425, 4583-33 | 313, 1,750.00
355 63, 209, 253, 4,500.00 374, 1,650.00
38, 4,250.00 69, 1,600.00
be 4,100.09 | 70, 82, 186, 254, 279, 330,

33: 37, 41, 80, 87, 177, 182, 368, 411, 438, 1,500.00

196, 243, 324, 374, 400, :

409, 4,000.00 | 172; 1,400.00
160, 3,875.00 | 91, 1,300.0.)
36, 96, 133, 152, 157, 174, 230, 291, 412, 1,250 00

230 244, 272, 350, 408, 251, 1,150.00
ee : ope 447, 1,044.16
18 : 2e2 2 eee 228, 255 437, 1,000.00

5+ 252, 3,250. 77, 93, 290, 800.00
120. 177, 188, 194, 228, 257, 8

268, 278, 278, 290, 312, 439, 750.00

366, 410, 426, 469, 3,000,00 | 47, 500.00

Of Woman,
48, 240, 409, 459, 5,000.00 | 38, 1,500 00
227, 4,500.00 | 160, 1,250.00
42, 180, 213, 226, 256, 4,000.00 | 226, 1,137.00
74, 129, 3,500.00 | 214, 477, 1,000.00
89, 3,000.00 | 280, 600 00
113, 242, 2,000. 00 52, 500,00
39; 1,700,00
Of Child.
(1) Over ten.
416, 3,200.00 | 405, 1,600,00
270, s 3,000.00 | 81, 1,500.00
$7, 2,333.00 | 195, 1,900.00
173, 401, 2,000,00 | 152, 800 09
(2) Under ten.

269, 5,000.00 | 257, 342, 1,500.00
363, 4,500.00 | 23, 1,300.00
244, 3,000.00 | 267, 1,200.00
68, 186, 243, 460, 2,500.00 | 291, 1,000.00
467, 2,000.00 | 130, 500.00
110, 1,800.00 | 156, 120.00
 

VervIcTs. | Cases CLASSIFIED. 769
Loss of Services.
Wife.
114, (Her back bruised, Shock) $3,000.00.
239, 2,500.00
248, (Killed : Husband hurt also) 2,360. 00
480, (Miscarriage) 2,250.00
223, (Her ankle sprained) 1,600, 00
176, (Her arm broken) 1,500.00
341, (“ ribs « ) 1,060.00
17, (Bruised : Son killed) 1,062,50
Child,
336, (Son’s leg amputated) 5,500.00
440, (Son’s arm broken) 1,500.00
Servant.

No such action seems to have been brought in this State. (See note to §

209 of the Code, page 667.)

II.—VERDICTs FOR INJURIES TO BoDy OF PLAINTIFF.

1st.—Parts Injured.

Abdomen.

See Back.
‘* Internal Injuries.
“« Spine, sub nom., Miscell.

Ankle.
Broken,
127, $5,000 | 331,
250, 2,000 | 34,
Sprained,
138, (Head injured)
302, (Leg bruised)
292,
336, (Leg and shoulder bruised, eye cut)
193, (Increased pain at child-birth)
436,
Miscellaneous.
168, (Head, shoulder and hip injured and horses killed)
69,

(See also, Back, Hip, Leg, Ribs.)

1,500
450

4,000
3,000
2,500
2,000
1,000

500

2,000
450
 

 

770 CasEs CLASSIFIED. [Crass E.
Arm.

Both Arms.

(1) Broken.

259, (Collar bone, leg and ribs broken) $15,000
440, (Head inj.) 3,500
(2) Miscell.

332, (Bitten) 500

(See also Burns, Leg, Ribs.)
One Arm.
(1) Amputated.

146, $11,500 | 121, 393, 469, 5,000
235, 10,000 | 88, 4,500
324, 7:250 | 359; 4,C00
108, 7,000 | 59, 218, 1,000
237) 5,250 :

393, (Face cut, side bruised, ‘‘seat wasted away ’’) 25,000
372, (Internal injuries) 15,000
204, ( oe “ ) 5,000
201, (Head and face injured) 9,000
183, (Head and thigh injured, ribs broken) . 5,000
146, (Thigh broken) 2,500

(See also Skull.)
(2) Broken.

305, $5,000 | 180, 1,750
239, 4,500 | 333, 379, 1,0c0
333; 2,541 | 358, 431, 500
208, 2,000

394, (Knee cut) 1,900
432, (Shoulder and wrist dislocated, body bruised) 1,000
394, (Wrist dislocated) 1,000
51, (Head injured) goo

‘(See also Ribs, Spine, Thigh, Loss of Services.)
(3) Dislocated or otherwise hurt.

429, e (Muscles permanent. injur.) 5,000
458, (Broken arm improp. healed) 4,000
473, (Finger broken) 3,000
215, 2,000
321, (Shock) 2,000
442, (Head, hip and knee injur.) 2,000
149, (Head injur.) 1,350
214, 1,000
64, 700

420, (Sightimp. Shoulder, Back and Womb inj., Shock, Miscarriage) 500

(See also Brain, Foot, Leg, Shoulder, Spine.)
Vexpicts. } CasEs CLASSIFIED.

 

T7
Back.
188, (Abscess, shock) $12,0C0 00
158, (Cr s by 11,C00,00
115, (#8 $6.) 5,000.00
141, (Chest injured) 10,000.00
205, (Legs injured) 7,500.c0
187, c soy 5,000.00
358, (s vo) 2,000.00
367, ce «* Infl. Sci. Nerve) 6,000.co
407, (Chest and stomach injured) 5,000.00
3335 (Legs and side injured) 4,000.00
19, (Hip inj., Control of Bowels lost, ) 2,500.00
159, Legs bruised) 2,006.00
247, 2,000.00
300, (Head bruised) 1,800 co
45; . (Head, neck and hand injured) 1,150.00
425, (Pleurisy) 1,060.00
256, (Ankle injured) 1,000.00
108, (Side bruised) 383.41
236, (Side and legs bruised)* 258.00

(See also, Arm, Collar Bone, Head, Hip, Leg, Nose, Ribs, Spine, Thigh,

Wrist.)

Brain, Concussion of

322, (Arm and leg injured)
292, (Coll. bone broken)
260, (Sight imp., ribs broken, shock)
370, (Coll. bone and shoulder dislocated)
421, (Shoulder injured)
430, (Spine inj., Sightimp.)
Cheek-bone.
335; $4,000 | 83
104, 1,000 | (See also, Spine.)
Chest.
(See Back, Finger, Internal Injur., Leg, Side, Spine.)
Collar-bone.
Broken.
150, (Head crushed, hands and legs injured, sight imp.)
362, (Back sprained)
Dislocated.
322, (Head and groin injured, hearing imp.)
(See also, Arm, Brain, Eye, Rib, Skull.)
Ear.

(See, Collar-bone, Head, Hearing impaired, Teeth.)

.

8,000
5,000
5,000
4,900
2,000
1,118

500

15,000
4,500

1,000
o 6

 

772 Casks CLassutin. [Crass F.
Elbow.
Broken,
338, $6,000 | 20, #800
Dislocated.
408, 1,750 | 202, 1,200

Eye, Destroyed or Sight impaired.

387, $5,000 | 359, 2,000
472, 3,000 | 304 600
29h, (Collar-bone and ribs broken, sight impaired.) 5,000
(See also, Ankle, Brain, Knee.)
Face.
(See Arm, Head, Side, Spine, Nature of Inj. sd. nom., Bruises, )
Finger. Several Fingers.
388, (Several ump.) ; 5,500
453, a 3750
354) (One, amp,, one licera,) 1,200
354 (Two, amp. and two crippled) 1,000
284, «u ue “head inj.) Koo
303, ( “a “a a ae ot ) 500
447, (« ae, 700

(See also, Foot.)
One Huger.
(1) Amputated,.

71, (iland crushed, chest inj.) 1,000
382, 000
380 500
308 250

(2) Broken.
(See Arm, Leg.)

Foot. ae
elmputated, wee
306, $12,500 | 72,264, ? 5,000
308, 10,000 | 31,607,252, 3,000:
368, 8,000 | 45, 2,500
183, 5.800 | 431, 800
319, (Two Fingers also) 8,000
404, a eg 4,875
* Hroken,
365, $4,600 | 117, 144, 500
Crushed,
78, $1,808.50 | 392, 1,000
192, 1,500
230, (Sealded also) 1,000
398,  (Contus, of head and body, body inj, and arm wrenched,) 1,000
Sprained,
428, 1,500 | 199, 1,000

(See alay, Leg, Knee, )
VERDICTS. |

CasEs CLASSIFIED. 773

 

Groin.

(See, Collar-bone, Spine.)

Hand.

(See Burns, Collar-bone.)

422,
219,

318,
293,
234,

Both Hanas.
One Hand.
(rt) Amputated.
4,000 | 452,466 $1,000
(Foot also) 5,550
(2) Miscellaneous.
3,300 | 361, 500.00
950 | 66, 486.75
(Ribs broken also.) 550.00

(See also, Back, Finger, Shoulder.)

Head.

101,
104,
144,
432,
82,

205,
181,
326,
2735
3575
248,
372;
360,
376,
49,

gl,

56,

28,

262

Bruises, Cuts, Sc.

(Body bruised) 15,000
( “se “e ) 4,000
(. nD 993
(Side inj., Shock) 5,000
(Knee inj.) 4,500
(Sight and hearing imp.) 4,275
a 4,000
2,500
(Side bruised) 2,500
(Body bruis,, shock, uterine injury) 2,500
(Back inj., Wife killed) 2,360
(Leg bruised) 2,000
(Rib broken) 981
(Miscarriage) 750
750
(Back inj.) 600
(Sight imp., headaches) 500
225

Miscellaneous.
$550 | 145 175

(See also, Cheek-bone, Ear, Eye, Face, Jaw, Nose, Skull, Teeth.—Also,
Ankle, Arm, Back, Collar-bone, Finger, Foot, Internal injuries, Leg, Knee,
Rib, Spine, Thigh.—Also Burns.)

Broken.
$5,500 | 320, 1,420
2,650 | 393, 750
(Knee and Thigh also) 14,000
(Rib broken, Pelvis inj.) 5,000
(Knee and Ankle Spr.) 500
 

774 Casrs CLASSIFIED. [Crass E.
Dislocated.

22, $9,900
323, (Rib broken, Womb displ.) 2,000
Miscellaneous,

259, $4,000 | 433, 1,500
389, 3,500 | 220, , 675
440, (Side inj. Infl. of Joint, disabled) 4,000
410, (Knee inj., head and side bruised) 2,000
300, (Thigh inj.) 1,700
149, (Bowels infl.) 1,600
173, (Back inj.) 500

(See also, Ankle, Arm, Back, Internal inj. Leg, Spine.)
Internal Injuries. Riis
130, (Thigh broken) 7,000
100, Co C 5,000
450, (Contus. of abdom., shock) 5,000
390, (Ribs broken) 2,900
381, Gas «« and dislocated) 2,000
265, 2,000
325, (Leg inj.) 1,200
385, 1,000
396, (Chest inj.) 1,000
2755 (Body inj.) 1,000
Stricture. ;
395, (Private parts inj.) 5,000
3315 (Limbs and body inj.) 3,500.
‘ Abdomen.

445, (Head, body and legs inj., hem. of ‘omit 5,000
"127, (Private Parts inj.) 1,000
266, ( 46 6c 66 ) 870
Poisoned.
44t, $12,500 | 24, 200

14, 800

Miscellaneous,

24, (Paralysis) 14,000.00
222, (Head inj., hip joint inj.) 5,000.00
314, (Shoulder inj.) 3,000.00
167, (Leg and hip inj., 4 miscarriages) 2,500 00
65, (Bruises) 1,623.00
57) ( “ ) 1,016,00
18, 645.50
27, 400. fey

(See also, Arm, Back, Foot, Head, Hip, Leg, Nose, Rib, Skull, Spine,

Wrist.

Jaw.

See, Spine, sub nom., Miscellaneous.,

Also, Health, Inflam mations.)
 

Veroicts. } Cases CLASSIFIED. 115
Joint.
See, Hip, sab xom., Miscellaneous.
Knee.
Broken,
218, $2,500 | 250, $500
286, 1,500 79, 200
448, 600
223, (Head and eyes inj.) 600
(See also, Hip.)
Miscellaneous,
125). , $5,500 | 71, 400
285, 5.125 | 326, 356
154, (Shock, also) 5,000
399, (Leg and foot deformed.) 3,000
(See also, Arm, Head, Hip, Spine, Wrist.)
Les. Both Legs.
(1) Both amputated.
429, $8,500 | 280, 2,500
174, 7,500
(2) One amputated.
293, (Foot also of other leg, latter also broken) .. 12,000
96, (Other leg broken) ee, 12,000
86, ( “ 6G 66 ) ead 10,000
163, ‘6 « inj. Thigh broken) 10,000
264, (Toe of other foot amp.) 5,000
i (3) Broken.
118, (Spine inj.) fly 10,000
101, , (Also bruises) » 3,500
4il, , (Feet inj., tumor) 2,500
302, ‘ 1,800
(4) Miscellaneous.
436, (Frozen, Body also,’ Shock) 2,000
283, ; (Body inj.) |. , 629
(See also, Back, Collar-bone, Internal inj., Skull, Nose, Spine, Ribs,
Thigh.)
One Leg. ~ reed
(1) Amputated.
361 $20,000 | 249, 434 3,000
294, 317) 10,000 | 103, 2,500
206, 9,000 | 236, 438, 2,000
315, 7,500 | 327, 3,500
311, 7,000 | 29, joo
275, oe 379, 6.000 | 29, ea 650

112, 175, 248, 3805 390, 5.000 (9
776 Casns CLassirinn, [Crass 1.

 

(2) Broken.

209, $9,000 | 41,

153, 6,000 | 108, 161, 265, 465,
121, 140, 191, 377, §,000 | 222,

53 41450 | 136,

302, 4,000 | 346,

210, 3,500 | 30, 231, 372,
209, 3,000 | 50, 307,

36, 44, 2,500 | 401,

99, 2,250 | 210,

191, 351, 355) 2.000 | 18,

395) (Head and breast inj.)
375, (Compound fracture)
440, ae i

419, (Womb injured)

146, (Ankle bro.)

1, (oh te)

329, (Head and arms inj.)
389, (Head and arma inj., [vot inj., big toe amp,)
147, (Internal injuries)
466, (es 48 >)
207, (Head and back inj.)
199, (Hip inj.)

159, (Finger broken)

(See also, Arma.)
(3) Dislocated, or olherwise injured

62, $3,100 | 161, 305,

417, 3,000 | 233,

104, 2,000 | 317, 358,

304, (Side inj. shock)

206, (Arm, thigh, and shin-boneg inj.)
155» (Hip paralyzed)

319,

112, (Ankle inj.)

456, (Iirysipelaa)

296, (Shoulder inj.)

(See also, Ankles, Brain, Head, Internal inj, Knee, i ae )

Lungssy Sce Ribs.
Neck. See Back, Collar-bone,
Nerve. See Bruises, Shock, Spine.

Nose.

224, $1,500 | 54,

116, 450

114, (Spine, back and legs bruised)
276, (Rib broken, body and lege Pee

(See also, Spine.)

$1,750
1,500:
1,250
1,240
1,215
1,000
600
450
359
340
13,500
8,000
2,000
5,000
35350
3,000
3,000
2,409
2,250
1,00
2,000
2,000
1,000

1,500:
600
500

1,750:

1,500

"1,509

1,200

1,009
600
550

30

3,000
750
‘VERDICTS. ] CasEs CLASSIFIED, 77

 

Pelvis. See Hip.
Private Parts. See Internal Inj,
Ribs Broken.

132, (Back inj.) | $15,000
422, (Bruises, Abcess) 8, 000
212, (Head and shoulder inj. internal injuries) 7,000
276, (Legs and arms &c, burned) 5,000
339 ’ ' 3,500
114, * (Lung inj., head, ankle and legs inj.) 3,500
476, (Arm broken) 2,500
246, (Head cut, arms scalded) 2,000
234, (Body inj., intern, inj.) 2,000
470, (Head, body and legs inj.) 1,550
775 (Internal inj.) 1,000
136, (Back inj., tumor) 1,000
450, (Collar bone bro., lung inj.) 1,000
135) 1,000

(See also, Arm, Brain, Face, Eye, Hand, Head, Hip, Internal Inj., Nose,
Skull, Spine.)

Shoulder.
Broken.

153) (Permanently crippled) 550
51, (Wrist sprained) 375
Dislocated.

277, $2,100 | 88, 450
134, 367, oo | 171, 185
237, (Arm perm. inj.) ’ 1,500

(See also, Arm, Brain, Spine.)

Miscelianeous,

315, (Side bruised) 675
309, (Arm inj., shock) 500
155, (Side, wrist and hand inj.) 500

(See also, Ankle, Arm, Brain, Internal Inj, Leg, Ribs, Spine.)
Side.
137, (Eyebrow lacerated, shock) 2,500
189, (Chest inj.) 1,000
188, (Leg ‘ ) 351

(See also, Arm, Back. Eye, Head, Hip. Leg, Shoulder Skull.)
Skull Fractured.
392, 406, $5,000 | 316, \ ‘ 500
326, (Arm amp.) 19 500
281, (Body hurt, epilepsy) 9,500
302, (Legs and side paralyz.) ; 6,000
187, (Spine injur.) 3,000
154, (Cs oe) 4,200

400, » (Coll. bone and two ribs broken) 575
778 Cases CLASSIFIED. ' [Crass E.

 

Spine.
Concussion of.

423, $8,000 | 124, $275
365, 700

375, (Lost use of legs, nibs bro.) 25,000
462, : (Shoulder inj., legs paralyz.) 5,500
444, : : (Paralysis) ‘ 2,500:
418, ( se ) 2,200
362, ; ( zs Hip inj., Urinary trouble) 2,000.
432, 2 (Back sprained, chronic) 1,100.

Miscellaneous. we

281, $25,000 422, 5,000
4755 20,000 | 330, 2,500:
316, 8,000 | 80, 1,800
148, (Arm bro., internal inj.) | 20,000
451, (Ribs bro., disabled) 15,000
382, 0 Pave 8 OF » (Bodycrushed, “* ): 15,000:
366, ; (Arm and leg crippled) ‘ 13,000
135, (Head injur.) 12,500.
267, Gs <7) : 8,500:
430, ast ey 2,600
76, Ge " ) 2,500:
379, (Hip inj., ulc. of womb) 16,000:
32, (Should. and wrist dislo.) 6,500
‘443, (Face injur.)- 6,000
377; (Shock) 5,000
452, (Shock, knee, chest and hip inj., sight me) 5,000:
321, (Paralysis) 5,000
379, Crak. C) 4,000:
86, (Back injur.) 5,000:
460, Ca ao) 3,500
358, GRRL Boy 2,000
446, aoyon 7 4 (Groin and ribs inj.) ' scat te 3,500
272, (Miscarriage) 3,500
326, (Shoulder and hip injur.) 3,000.
277, (Abdomen injur.) 3,000
464, (Head cut, legs inj., infl. of nerves) 2,500
220, en (Jaw broken) 2,c00
420, ‘+ + (Head inj., nose bro., sight imp.) gn 2,000
289, (Side inj., abscess) 1,500
389, (Leg inj., nerv. pros.) 1,000

(See also, Brain, Leg, Nose, Skull.)

Teeth.
27, ? (Cuts &c.) 2,000:
384, (Bruises) * 1,600

427, (Bruises, sprains, shock, deafness) 1,000
Vervicrs. | Cases CLASSIFIED. 779

 

Thigh Broken.

210, $18,385 | 335, $3,000

112, 12,000 | 100, 2,00

I, 5,000 | 166, 1,0coO

345, (Both legs also, bruises) 42,500 ‘
433» (Arm broken, crippled) 14,000

399, («8 ‘« head and. back injur.) 5,000

299, (Head and back injur.) 3,000

(See also, Arm, Hip, Internal Injur., Leg.) ,
e
Toe. See Leg. yt

Womb. See Arm, Head, Hip, Internal Inj., Leg, Miscarriage.

Wrist.
Broken.
272,336, ro $1,000 | 249,» é 800
467, (Back sprained also) 3,000
125, (Knee bruised, open sores) : 2,500
Dislocated. ss :

(See Arm, Spine.) oe
Sprained. -

 

87, (Various cuts and bruises)’. -- 1,500,
(See also, Shoulder.) i a

Miscellaneous. i:

386; $10,000°| 22, goo

123, 2,500 | 6, ; , 800°

23, 1,500 | 20, wig Cp os 625

12, ie SS es “1,000 15,. 450-

 

2d. Nature of ane
Abscess. See Back, Rib, Spine. pa
Amputation. See Arm, Finger, Foot, Leg, Toe.
Bitten. See Arm, Hand, Leg.

Breaking Bones. See Ankle, Arm, Cheek-bone, Collar-bone,
Elbow, Finger, Foot, Hand, Hip, Jaw, Knee, Leg, Pelvis, Rib, Shoulder, -

Thigh, Wrist. peers EEE
Bruises. ‘
217, 2,000 | 24, 30, 400
465, (Sciatic nerve injur., crippled) 5,000,
482, (Face disfigured) 1,750"

(See also, Face, Head, Internal Injur., Ribs, Teeth, Thigh, Wrist.) ‘

 
780 CasEs CLASSIFIED. [Crass E.

 

Burns.

110, $20,000 | 148, I71, $5,000
425, 14,100 | ‘16, 3,500
102, 12,000 | 151, 2,250
268, 9,500 | 113, 2,000
263, 7509 | 330, 1,600

Child-birth. See Miscarriage, Pains.
Contusions, See Bruises.

Crippled, See Disabled.
Cuts. See Head, Skull, Teeth, Wrist,

Disabled. See Bruises, Hip, Shoulder, Spine, Teeth, Thigh, Wrist,
Miscellaneous,

Dislocations. See Ankle, Arm, Collar-bone, Elbow, Hip, Leg,
Shoulder.

Epilepsy. See Skull.
Erysipelas, See Leg.
Frozen, See Leg.
Health Impaired,

262, $5,000 | 54, goo
408, 3,000 | 47, 850
29, 2,000

(See also, Internal Injur.)

Hearing impaired. See Collar-bone, Ear, Head, Teeth.

Inflammations.
Of Bowels, See Hip.
6c Joint, “cc “c
‘© Nerves, ‘« Spine,

“* Sciatic Nerve,‘* Back, Bruises,
Miscarriage, See Arm, Head, Internal Inj., Shock, Spine, Wife, Loss
of Services of.}-
Nervous Prostration, See Shock, Spine.
Pain (at child-birth increased.) See Ankle.
Paralysis. See Internal Inj., Leg, Skull, Spine,
Pleurisy. See Back.
Poisoned, See Internal Inj.

Rupture. See Internal Inj.
Scalds, See Burns.
VERDICTS. | Casrs CLASSIFIED. 781

 

Shock,

369, (Causing nervous pros.) $10,000
1 98, ( sé 6 ce ) Ty 5 00
448, ( 6 be oe ) 650
210, Es oe miscarriage) 3,000

(See also, Arm, Back, Brain, Head, Internal Injur., Knee, Leg, Shoulder,
Side, Spine, Teeth, Wife, Loss of Services of.)

Sight impaired. See Eye.

Sores, See Wrist.

Sorains. See Ankle, Foot, Teeth, Wrist.
Stricture, See Internal Inj.
Tumor, See Leg, Rib.

Uleer. See Miscellaneous.

Urinary Trouble. See Spine.

Uterine Injury. See Arm, Head, Hip, Internal Inj., Leg, Spine,
Womb, ,

Miscellaneous.

31, (Ulcer resulting) 4,500.00
58, (Wounded by being shot) 1,500.00
371, (Crippled) 850.00
66, (Bitten by dog) 486.75

(See also Bitten.)
782 CasEs CLASSIFIED. {Cass F,

 

CLASS F.—STATUTES.

A classification of the various statutes herein cited.

It should be noted that it does not fall within the limits set for this book
to give a complete list of all'acts which affect, or might be claimed to affect,
suits “‘in' negligence. i (See note on p. 730). This is therefore called a
classification of the statutes herein cited. In the main’ they are those which
have been the subject of judicial mention. It is true that there are here
some acts under which no litigation has as yetarisen. They were referred
to in Part IJ, more for the purpose of adducing some curiosities of legisla-
ture, than in the belief that they would have much material bearing upon
suits, At the same time they may have a potentiality in the way of support-
ing a cause of action. Take, forexample, the act requiring certainemployers
to provide seats for females. It might be that a young girl, ignorant of the
danger to her health from continuous standing, could ‘maintain an action
for damages against an employer who had neglected to comply with the act.

GROUPED UNDER THE FOLLOWING HEADINGS.
I. —STATUTES OF NEW YORK.

Revisep Statutes, |
Original Ed.
Birdseye’s Ed.

CopEs.

Code of Civ. Procedure.

mynd cee Proceduré:’ ”

’ Penal Code.

SEssion Laws.

Ist in regard to
The State.
Counties.
Towns.
Cities.
Villages.
Miscell.
2nd in regard to,

Apprentices.
Bridges.
Building.
Children.
cK il Damage.
Contractors (Pub.)
Crossings.
Death.
Education.

 

Session Laws (cont'd. )
Elevated Railroads,
Elevators.
Emigrants.-

Employees.

- Evidence.
Excise.
Factories.

Fires. fF 0eh) 1°
Fire-Escapes,
Highways.
Innkeepers.
Interest.
Intoxication.
Mobs.

Pipe Lines.
Plankroads,
Public Instruction.
Rafting,
Railroads.
Scaftolds.
Sidewalks.
Sunday.
Vessels.

Miscell,

'

I.—OF U. S. AND VARIOUS STATES.

U.S. REv. Stat.
«  $STAT. AT LARGE,
ConNECTICUT,

New JERsEy.
PENNSYLVANIA,
GREAT Britain.
 

 

STATUTES. ] CasEs CLASSIFIED. 783
I.—STATUTES OF NEW YORK.
REVISED STATUTES,
Original Edition. Birdseye’s Edition.
Vol. Page. Cited on Page. | “ ub nom., Title of. Cited on Page.
I, .. 337, § 1, 502 | Fires, 576
364, “ 502 | Highways, 575
“ 521, 562 | Navigation, 546
“e 695, ** 562, | Pipe Line Co’s, 576
“e 695, § 2, 546 | Sidewalks, 575
“ 696, § 5, 546 | (For Sunday Law in Rev. Stat. see
se 696, § 6, 546, 563 | Sunday, tx/ra.)
es 696, § 7, 563°
é
CODES.
Civil Procedure. Code of Procedure
Section. { . Subject. “Cited on Page. : (ahas Old Code.)
66, Attorneys, 200, 721, | Section. Subject. Cited on Page.
73> “ 200° 94, Stat. of Lim., 273
74, “ 200! 94, co 250
102, Sherifts, 515, | 104, ge tt 200, 264.
263, Jurisdiction, 723-| 399, Evidence, 12, 24
"383, - Stat. of Lim.; © 273, 339.
405, 2 206, 664 | Penal Code.
431, Complaints, 799 || Section. Subject. Cited on Page
722, Amendments, 257, 714' | 292, Employm. of Child. 524
764,. .' Abatement, 350, 359,721! | 413, Fires, 564
833, Evid. of Clergym., 374,375'| 421, Signals. at Cross’gs, 458, 564
334, «6 Phys., 374, 375 |' 426, Rid’g on Fr. Trains, 615, 632
873, Physical Exam.,426,711,716.| 652, Driv’g on Sidewalk, 448, 449
1780, Foreign Corp,, 349, 723' | 718, Defin. of Neg., 487
1902, Death Act, 293, 721, 729°
1904, 6s 672:
3245, Costs, 326
3343» Definitions, 7i2
 

 

784 Cases CLASSIFIED. [Crass F.
SESSION LAWS,
(1) In regard to,
The State. Cities cont'd.
Laws of. Chap. Subject. Citedon Page. | Lawsof. Chap. Subject. Cited on Page.
1866, 836, Canals, 149 | 1881, 183, © Cohoes, 419
1867, 577, ee 149 | 1855, 6, New York, (see Build-
1870, 321, as 319, 320, 330 ing Laws.)
332, 341, 388 | 1871, 574, te 197
495,496,497 | 1871. 625, 7 730
1876, 444, " 495 | 1873, 335. 286, 715
1877, 404, i 420 | 1873, 613, sé 281
1883, 205, CourtofCl., 494,495 | 1874, 547, “s (see Build-
1884, 60, oo 494 ing Laws.)
i 1882, 410, €e 725, 730
Counties. 1886, 572 * 456, 664, 712, 726
1869, 670, Roads, 317 | 1891, 128, & 502
686, 8 ;
189% ee Ee ae ae (See also Miscell. ¢#fra.)
(See also Miscell. infra.)
Towns. :
1881, 700, Roads, 316, 418, 436 Villages.
500, 507,508 | 18:4, 352, Canandaigua, 428
515. -| 1870, 291, Gen. Charter, 296, 502
1890, 569, Town Law, 502,515, 575 66
See also Miscell. infr ee
(Se iscell. a.) 1889, 440, Am.of “ 664, 725.
Cities. (See also Miscell. next heading.)
1855, 6, Brooklyn, (see Build-
ing Laws.)
1862, 63, ee 90, 656
1873, 863, te 386 | Miscellaneous,
1888, 583, as 383
1891, 128, ee so2 1839, 262, Costs agst. Mun., 318
1870, 519, Buffalo, 265, 456 1892, 685, Gen.Mun. Law, 502, 515
1886, 479, ee 456 (See also Highway Law, ix/ra.)
(2) Laws in regard to,
Apprentices, Bridges.
Laws of. Chap. Cited on Page- | Laws of. Chap. Cited on Pag .
1871, 934, 524, 672 | 1891, 128, 467, 502, 509, 515

(See also Highways, Towns, Cities,
Villages, Railroads.)
 

STATUTES. ] Cases CLASSIFIED.. 785
Building. Factory.
Laws of. Chap. Cited on Page. Laws of. Chap, Cited on Page.
1855, 6, 204, 576, 582 | 1886, 400, 525
1871, 625, 730 | 1887, 462,. 435, 439, 525
1874, 547, 259, 356, 730 (See also Building Laws.)
1882, 410, (Consol, Act.) 730

Fires, See Penal Code, Vessels.
Children.
1876, 122, 292, 524, s41 | F'ire-Escapes. Sce Building
1880, 585, 355, 632 Laws, Innkeeper’s Acts.

(See also Employees.)

Civil Damage, See Intoxi-
cation.

Contractors, Public.
See Laws of 1866, sud nom,, The
State, supra.

Crossings, See Railroads.

Death.

1847, 459, 24, 97, 257, 268

269, 293, 672, 721
722, 723, 729.

1870, 78, 130, 247, 672, 729

Education. See Public In-
struction.

Elevated Railroads.

1881, 399, 546

Elevators, See Bulding Laws.

Emigrants.
1848, 210, 546
Employees.
(1) Female.
1881, 298, 525 |
'(2) Messenger Boys.
1887, 532, 525

(See Penal Code, Factory Act,
Scaffold Act.)

Evidence. Sce Codes.

Exeise. See Intoxication.

 

Highways.
1890, 568, 502, 515, 516, 546
562, 563, 564, 575

672, 697, 725, 726

Innkeepers Acts.

1855, 421, 92, 97, 98, 106
596, 681, 730
1866, 658, 176, 681, 730
1883, 227, 730
1887, 720, 730
Interest.
1879, 538, 247
Intoxication.
1857, 628, 525, 546
1873, 646, (Civ. Dam.”) 211, 470
576, 588, 672. 721
722, 723, 728, 729
1892, 401, (“Excise”) 525, 546,
: 576, 723
1892, 403, 723
Mobs.
1855, 428, jo
Pipe Lines.
1878, 203, 576
Plank Roads.
1847, 398, 23
Public Instruction.
1864, 5555 216
Rafting.
1880, 533, 563
1891, 385, 563
 

 

786 Cases CLASSIFIED.. [Crass F.
Railroads. Scaffolds,
Laws of. Chap. Cited on Page. | Laws of. Chap. Cited on Page.
1846, 216, (Spec. Charter) 67, 78 | 1885, 314, 525, 576, 595, 599
1847, 270, 41 | 1891, 214, 525, 576, 595, 599
1848, 140, (Gen. Law) 78 : 2
1850, 140,( ‘ ‘© ) 22, 34, 46,68
= ee 2 = Sidewalls, See Penal Code,
3, 570, 500, O15 wie ‘ M L
1853, 62, (Crossings) 177, §63, 569 Cities, Villages, Highway Law.
1854,  282,(Gen. Lawam.) 68, 83
217, 291, 399, 442
1858, 125, (Sleeping Cars) 546 Sunday. :
1864, 582, (Gen. Law am.) 576 | x Rev. Stat. 675, § 66, 48, 151, 259
1878, 261, (Riding on Pl.) 615
1882, 353, (R. R. Comm’rs) 564
ee 439, (Gates) 349, 463,564 | Vessels.
1886, 151, (Hours of labor 525 met
; 1829, 314, (Lying to) 194
86. Cr I, 442, :
reer ae ene % : ve 1879, 324, (Oil on) 599
1887, 529, Hours of Labor) 525
1890, 565, (‘Railroad Law”’) 546 f
563, 576, 615, 621 | Miscellaneous.
1891, 367, (Railr. Lawam.) 576 | 1881, 535, As to Surrog., 269
1892, 676,( “ ‘* *) 576, 615 For Am. to Codes see Code.
II.—OF U. S. AND VARIOUS STATES. ie
U.S. Rev. Start, ConNECTICUT,
§ 4281, Liabil. of Own. of Death Act, ; 240
Vessels, 406, 407, 558 NEw JERSEY.
' Gen. R. R. Act, 94
PRIOR STATUTES, PENNSYLVANIA,
1838, Insp. of Boilers, 113 | Limiting damages, 101
1852, se 113. | Death Act, 412
1851, Liabil. of Own. of GreaT BRITAIN,
Vessels, 98, 131, 557 | Passenger Act, 441
e

THE END,
INDEX.

The figures refer to the pages.

As the cases in Part One are repeated.in Parts Two and Three, the latter
serve as indices to the former, except in a few instances which are

here indexed.

For words indicating causes, scenes or occasions of accidents, which are
not found in this index, see Class C in Part III (p. 739).

Abatement. 491, 492, 721, 732 |
Note on preventment of by
contract, 172
Abutters. 560, 573, 577.
Accidental Shooting (Note), 58 :
Accidents.
Classification of, 739

Note on the rule as to proof
of similar,

See Evidence.
Accord. See Satisfaction.
Actionable Negligence.

See Negligence.
Acts of Legislature.
* See Statutes.
Acts of Parties. See Evidence.
Adjudication, Former.

See Kes adjudicata.
Administrative Officers.

697

514

 

Admissions. See Declarations.
Adults, Degree of care of, 607 .
Afterthought. 491
Agents. 490, 520, 591
See also Principal.
Agistors. See Bailees.
Aliens. Suits by, (Note), 499
Alleys. 498, 509, 627
Alter Ego.
Notes on, 521, 522
See Masters.
Amendment of Pleadings. 713

Animals.
Management of, in Highway, 571
Trespassing, 586
Contrib. Negligence, 637
Cases against Carriers of, 764
See also Owners of.
Answer. See Pleading.
Antiquated Machines, 523
Appeals. See Court of. :
Apphances. 522, 523, 524, 539, 540
543, O11
See also Carrier, Master, Con-
tributory Negligence.
Appraisers, Canal.
Jurisdiction of, 494
Apprentices. Damages to.
See Damages.
Architects. 591
Arrangement of Cases.
Notes on, 590, 655
See also Preface.
Arrest, of Passengers, 554

See also Respondeat Superior.

Assaults, on Passengers, 554
Assessors, Public, 518
Assignability,

of Causes of Action, 721
Assignees. 5901
Assistance,

of passengers, duty of carrier

as to, 553
of one’s neighbour, (Note), 485
 

788 Inprx, [ REFRRENCRS
Attorney and Client, 596 Limitation of duty of, 491
Audit, Board of, 494 By Carriers, Masters &c. See
those subjects,
Carriage, Safe, of Passenger, 550
Baggage, Cases in regard to, 765 ; Carrier and Passenger.
Bailee, 591, 592 Duties of (see below), 543
Bailment. Sce Bailee, Evidence. } Degree of care required, 543
Bailor, 5092 Limitation of liability, 543) 544
Banks, 592, 632 Not insurer, 544
Beneficiaries. See Trustees. Contract or tort, 544.
Bills of Lading, The relation of, 544, 546
Tricky, liability of carrier Sunday travellers, 544) 547
under, 560 Ropgulations, 545
Notes on fraudulent arrange- Through tickets, 545, 548
ment of contents of, 4, 559 Trespasscrs, 545
Blasting, 581 References to Statutes, 540
Blind Persons, 632, 647 Free Passengers, 546
Board of Audit, (Stite), 4940 Ejection of « 547
Board of Claims, 494 Several carriers, 548
Boarding. Carrier’s duties, 548
Carrier's conveyances, 616 As to Premises, &c., 548
Notes on rule as to, 284, 350 “ Road-bed, 549
Boards, (Public), 500, 514, 516 “Vehicles, 549
Boats. Sce Vessels. ‘ Diligent carriage, 550
Bodily Injury, 491, 711 “Seating, 550
Bridges, ‘« Safe carriage, 550
Liability of State, 496 (1) Managem, of Traina, 550
“, Municipalities, 498 (2) “ Stages, 551
502, 509 (3) xe St-cars, 551
“ Com'rs of Highw., 516 (4) us Boats, 551
“ Inferior Officers, 518 (5) Passengers getting on
Contributory Negligence as to, 627 or off, 551
Brokers, 594 (a) Stages, 551
Builders, 594 (b) Street-cars, 551
Building Laws, 730 (c) Trains, 552
See also Statutes. As to Assistance, 553
Burden of Proof. “Foresight, 553
Note on, 16, 435 “Warning, 553
See Evidence, “Arrest, 554.
* “Protection, 554
(1) From Assault, 554
Canal Appraisers, 494. (2) ‘* Robbery, 554
Canals, (3) ‘* Doctors, $55
Negligent management of, 494 (4) ‘ Storms, 555
Captains, (5) ‘ Collisions, 555
See Masters of Vegsels. See also Causes, Defenses,
Care, Evidence, (685~702), Imputed
Degree of,to be used, 486-488, 607 Negligence, Passes, Ques.
Requisite care, definition of, 489 tions of Fact,

 
 

ARE TO PAGES. ] INDEX. 789
Carrier and Shipper. Charterers, 502, 594
Limitation of liability, 555 | Children, 633, 638, 639, 667
By contract, 556 See also Contributory Negli-
‘ state, 557 gence, Damages, Imputed
Negligence in such case, 556 Negligence, Questions of
Liability on fraudulent bills of Fact.

lad. &c. suggested section, 560

Duty under lim. liabil., 558
Miscell., 558
Animals 2” transitu, 559, 764
Goods So 559
(1) Delays, 764,
(2) Loss by fire, 764

(3) Otherinjury to,or loss of, 765
(4) Disputes as to deliveries, 765

(5) Miscellaneous, 765, 766
Baggage, 765
Express parcels, 765
Telegrams, 765

See also Causes.
“© Evidence (686)
Note on liability under tricky

bill of lading, 559
Carriers, Special, 559
Cashiers, 594

Causative Negligence,
See Negligence.

Causes,
In general, 704
Proximate and remote, 704
In general, 704
{ce and snow, 704
Fires, 705, 732
Master and servant, 705
Carrier and passenger, 705
Carrier and shipper, 706

Travellers on highways, 706
Under Civil Damage Act, 706

Miscellaneous, 707
Several causes, 707
Intermediate causes, 708
Nonsuit, 708
Statutory, 728, 729
Assignability of rights of

action, 721

Cestuis-que-Trustent.

See Beneficiaries.
Charge. See Practice.

 

Note on liability of master for
employing, at dangerous

machines, 524
Choice, 608, 609
Circumstances. note on non-

expectable combination of ex-
pectable occurrences, 189
Cities, 498

Civil Damage Act, 588, 728
See also Damages, Owners,
Miscellaneous Subjects.

Claims,
Against the State, 494
ee Municipalities, Pre-
sentment of, 725
See Defences, Practice.
Classification, :
Of Plaintiffs, 737
“ Defendants, 738
“ Accidents, 739

Cases against carriers of
animals, goods, baggage,

parcels, telegrams, 763
“ Injuries and verdicts, 766
‘¢ Statutes, 782.
Clients.
See Attorney and Client.
Club Members, 595,

Coal Hole Covers,
Note on liability for those
worn smooth, 307
Codes, of Procedure, &c.
See Statutes.

Codification.
Remarks on, 484g
Notes on, 188, 481, 484g, 563, 711

See also Preface.
Cohoes, City of.
Note:on unusual carelessness

of its officials, 419, 738
Coincidence.

Note on a striking, 381

Collectors, 595
 

790 InpeEx. [ REFERENCES
Collisions. See Carriers, Of Owners of real prop , 629
Combination. ‘* Lessees us 629
Non-expectable, of expectable ‘Licensees on ‘ 629
occurrences, (Note), 189 ‘* Miscellaneous plaintiffs, 631

Commercial Paper.
See Defenses, Owners of,
Prom. Notes.
Com'rs of Highways, 515, 516
ve ‘“*« Schools, 517
Common Carriers, 543, 633
See Carricr and Passenger.
5 Ae “Shipper.
Communications, Privileged,
See Mvidence,
Comparative Negligence, 738
.Competent Servants, 522, 524, 535
See Masters.
Complaint. Sec Pleading,
Concurring Negligence, 524, 532
See also Masier, Negligence,
Conductors, 595
Conflict of Evidence.
See Evidence,

Connecting Carriers, :
see Carriers,

Consignees, 9.

Constitutional Questions, yao

See also‘ Jurisdiction.
Constructive Notice.
See Notice.

Contingent Fees (Notes), 200, 634
667

Contractors.
Public, 504, 514, 515, 518
Private, 595, 733

See also Defenses, Masters,
Municipalities, Resp. Super,

Notes as to, 479, 523
‘Contract or Tort, 492, 544, 722

Notesn, 492, 544, 763
Contracts.

Of Limitation of Liability,

See: Defenses, Damages,
Contributory Negligence.

In General, 491, 607
Of Servants, 609
‘ Passengers, 615

“ Travellers at crossings, 620
oy “ along highways, 625

 

Notes on, 475, 490, 491, 607

See also Defenses, Negligence,
Questions of Fact,

Corporations,
See‘Carrivrs, Masters, Muni-
cipalitics, &c.
Co-Servants,
See also Masters.
Costs. See Statutes.
Counties, 498
Court of Appeals,

Note on causes of overbur-
dened calendar, (see also
Preface), 710

Review of facts, 107, 364

See also Practice.

Court of Claims.
See Board of Claims,

Court of Errors.
“ Multitudinous,” (Note), 8
See also Jurisdiction,

521, 522, 524, 530

Courts. See Jurisdiction,
Creditors, 633

Crossings, 561, 562, 585
Noles, 63, 343, 468, 563
See Causative Negligence,

Contributory Negligence,

Defenses, Evidence, Ques-
tions of Fact,
Crosswalks, 499
See Causative Negligence,

Contributory Negligence,
Ilighways,
Custodians. ,
Of Children, See Imputed
Negligence.

Of Property. Sve Bailes,
Custom, See Evidence,
Customers, 633

Damages.

In General, 491, 667
 

 

ARE TO PAGES. ] INDEX. 791
Items of Damage, 669 |.Defendants.
Pain and Suffering, 669 Classification of, 738
Expenses, 669 | Defenses.
(1) In General. 669 In General, 655
(2) For Physicians, 669 Municipalities, 656
(3) ‘ Medicine, 669 Actions against, 656
(4) ‘* Nurses, 669 ; ‘© by, 657
(5) To supply place, 669 Public off., and contractors, 658
Loss. Masters, 658
(1) Of Time, 669 Carriers, 658
(2) ** Use, 669 In General, 658
(3) ‘* Earnings, 670 Ultra vires, 659
(4) ‘* Prof. Earnings, 670 Passes, 659
(5) ‘* Profits, 670 As to shippers, 660
OE Services, 671, 732 Miscell., 660
Interest, 670 Highways, 661
Exposure, 670 Permits, 661
Invalids, 670 R. R. Crossings, 661
Prospective damage, 671 Miscell., 661
To the injured person, 671 Owners, 662
‘© Husbands, 671, 732 Fencing. 662
“ Parents, 671 Miscell., 662
‘¢ Children, 672 Payment, 663
Special acts, 672 Statute of limitations, 663
Apprentice Act, 672 In general, 663
Law of road, 672 One year, 664
Civil Damage Act, 672 Two years, 664
Death Act—our own, 672 Three years, 664
Other Acts, 673 Contracts of limitation, 664
Limitation by contract, 673 Nuisance, 664
Exemplary damages, 674 Presentment of claims, 664
Mitigation of damages, 674 Former adjudication, 664
Nominal damages 675 Miscellaneous, 665
Miscellaneous, ; 675 Gratuitous services, 665
See also, Evidence, Pleadings. Commercial paper, | 665
Danger, Escaping from, 608 Other contracts, 665
Dangerous Acts, 612 “ matters. 665
See Servants. Fdanthse : 732
gai, oh Definitions, 485-492
See Damages, The State, Loss Note on, 486
of Service. Delegation,
Declarations. See Evidence. Of master’s duty, 523 524, 542
Defective, Demand of Damages.
Appliances, 523, 524, 539 See Pleading.
Machines, 523, 524, 537 | Demurrer. See Pleading.
Places, 523, 524, 536 | Depositors, 633
Tools, 523, 524, 539 Note on neglect of, to examine
Aehicies: 524, 538 returned checks, 242
See also Masters, Municipalities, | Depots, : 548
Owners. Despatchers, Train, 532
 

 

792 INDEX. [REFERENCES
Diagnosis. Of Public contractors, 514
Definition of, by Finch J., 362. “66 officers, 514
Digging near Line. 582 ** R. R. companies as neigb., 574
See Excavations.] es ae State, 494
Diligence of Carrier, 543, 550 | , 10 avoid danger, 490
Directors, 595, 633 Note on duty of succour, 485,
Disobedience. See also Negligence.
Of servants, 613
; s pass., see Regulations. wings,
Diverting Water, 496 See Damages, Evidence.
See Neighbours. Ejection of Passengers, 547
Docks, 509, 576 | Elevator Shafts.
See Municipalities, Owners of See Building Laws.
Real Estate. Embankments, 510
Doctors, 555, 603 | Emergency.
Drainage, 509 Failure to do best under, 491, 731
See Municipalities, Owners of Employees.
Real Estate, See Servants.
ea Note as to seats for female, 525,
Draining, 510 .
See Owners of Real Estate. Equivalents, ;
i For statutory requirements,
Drains, 510 (Note), 435
See Owners of Real Estate. Escape from danger, 608
Driven by others, 622 See Contrib. Negligence.
See Imputed Negligence. Evidence.
Drivers, 639, 640 In general, 677
See Imputed Negligence, Burden of proof, 679
Driving, 571, 626, 628 When on plaintiff, 679
Driving over crossings, 622 (1) As to contrib, neg., 679
Drum-man, 532 (2) ‘* other matters, 680
Drunken Persons, 634 When on defendant, 680
See also Civil Dam. Act, Presumptions, 681
as Intoxication, in Class As to plaintiffs, 681
C, of Part III, 752 ‘« defendants, 682, 732, 733
Duty. ‘© miscel. facts, 682
In general, 485 Inferences as to negligence, &c. 683
Breach of, 492 As to contrib, negligence, 683
Law of, 485 From several facts, 683
#€ «& (Notes on), 485, 490, 763 As to employment, 683
Neglecg to perform, 489 Of notice, 683, 733
Of Boards, 514 Between master and servant, 684
‘« Carriers of passengers, 543 (1) Incompetent servant, 684
«4 «s goods, 555 (2) Machines, 684
‘« Lessees of real prop., 573 (3) Appliances, 684
‘ Licenseeson *' 573 (4) Rules, 684
“ Masters, 520 Between mast. & third pers., 685
‘* Miscellanéous persons, 589 ‘carrier & pass., 685
‘« Municipalities, 498 ye ‘ & shipper, 686
“ Neighbours, 574 “© Travell. on highw., 686
‘** Owners of real property, 572 ‘« Neighbours, 68,

ere
 

ARE TO PAGES. | INDEX. 793
Against owners, 687 Ownership, 7O1
se purveyors, &c., 687 Of pleadings &c. (writings), 7or1
Discrediting a party, 688 Occular evid., 701
Conflict of evidence, 688 Parole‘ 702
As to signals, 688 In crossing cases, 702
Other cases, 688 Between neighbours, 702
Interested evidence, 688 ‘carriers & p. or serv., 702
Opinions, 689 “ mast. & serv., 703
Of experts, 689 In cases of bailment, 733
(1) Who are, 689 Notes on,

(2) Physic. as to cause, 689 Burden of proof, 16
(3) fs ‘results, 689 Diagnosis, 362

(4) ‘© miscell., 690 Inferences against both par-
(5) Other experts, 690 ties or neither, 475, 491
Of others, 691 Opinions of experts, 38
(1) Non-experts, _ 691 Proof as to similar accidents, 697
(2) Parties orincrim. pers., 692 Res tpsa loguitur, 677

Matters of common exper., 692
Privileged communications, ~ 692

Declarations, 692

Of injured person, 692

(1) As to pain, 692

(2) ‘ accident, 693

Of wife, 693

‘© witness, 693

‘* servant, 694, 733

Written, 694

Miscell., 694

Damages, 694

As to wages &c., 694

In death cases, 695

Miscell. items, 695

Permanence, 696

In rebuttal, 696

‘* mitigation, 696

As to exemplary, 696
As to admissibility and effect

of certain things, 696

Under pleadings, 696

Res inter alios, 697

(1) Judg. Rolls, 697

(2) Custom, 697

(3) Freedom fr. accid., 697

(4) Happ’g of other accid., 697

(5) Miscell. acts, 697

Fires, 697

Acts of plff., 699

“ deft., 700

(t) Before accident, 700

(2) After as 700

 

Evolution of law of negligence.

Notes, 4, 16, 60, 485, 763
Examination, Physical, 711
See Statutes.
Excavations,
In highways, 560, 566, 578
Near ‘¢ 578
‘division line, 582
See Highways, Municipalities,
Owners.
Exclamations.
See Declarations.
Executors, 595

Exemplary Damages.

See Damages, Evidence.
Exemptions.

See Limitation of Liability.
Expenses.

See Damages, Evidence.

Experts. See Evidence.
Note on expert evidence, 38
Explosions.
Note on liability for, of boilers
in populous places, 93
Express Companies, 595
«Parcels, 559.
Cases against carriers of, 765

Fact. See Questions of.
Review of in Courtof Appeals,
(Notes), 107, 364
794

INDEX.

[REFERENCES

 

Factory Act.

See Masters, Owners of Real
Prop., Miscellaneous Sub-
jects, Statutes.

Father. See Parent.
Feeble-mind.

Degree of care from persons of, 607
Fellow-Servants,

See Co-servants, Servants.
Female Employees,

See Servants.

Note on seats for, 525
Fences. See Neighbours.
Ferry Companies, 595
Note on liability as common
carriers, 128

Fire-Alarms. See Build. Laws, 730
Fires.
See Causes, Evidence, Neigh-

bours.
Fire-Escapes, 730
Flagmen. See Crossings.
Also Part III, Class C,
Flike Case.
Notes on, 44, 133, 205, 245, 321, 459
Flooding, 583
See The State, Municipalities,
Neighbours.
Foreman, 531, 532
Foresight, 491, 553
Notes on, 475, 491

Former Adjudication.

See Defenses, Res adjudicata.
Fraud.

In arranging contents of bill

of lading, (Notes on), 4, 559
Freight. :
Cases against carriers of, 764
Free Passengers, 546
Free SefVices. See Defenses.
Funds, 507

See Defenses, Municipalities.

Gas Companies, 595
Gates. See Crossings.

See Part III, Class C.
Goods.

Moving on highway, 560,

See also Carrier and Shipper.

 

Governmental Functions,

Neglect to perform, 498
Grading, 500
Gratuitous Services.

ssee Defenses.
‘Gross ’’ Negligence, (Note), 17
Guardians.

See Imputed Negligence.
Guests.

See Innkeeper and Guest.

Halls, 577

Head-Notes. See Reporters.
Appropriation of, 343

Highways."
Abutters on, 577
Alleys, 509
Bridges, 509
Docks, 509
Drainage, 509
Drains 510
Embankments, 510

Excavations in or near, 560, 578
Municipalities’ duties as to, 498

Navigable streams, 510
Obstructions, 577
Occupants of, 560
Repairs of, 501
Roads, 510
Sewers in, 511
Sidewalks, Sur, 578
Streets, 512
Travellers along, 560
What are, 508, 564

See also Defenses, Municipal-
ities, Questions of Fact,
Travellers, Abutters.

Note on law of road 222
Hirers (of pers. prop.), 595
Holders of Notes.

See Prom. Notes.

Hotels,

See Fire-Escapes, Innkeepers.
Husbands

As Deft’s, 5905

Damages to, 671, 732

See Damages, Evidence, Loss
of Serv.
ARE TO PAGES. |

InpDEx.

 

Ice and Snow.
Duty of municipalities to re-

move; 499
Duty ofcarrier to remove, 543, 548
‘© © househ’r ‘ see

Owners, Recovery over.
See Contributory Negligence.
Immaterial Matters.
See Defenses.
Improvements, Latest.

See Appliances, Carrier,
Master.
Imputed Negligence, 491, 638
Notes, 56, 345

See also Negligence, Ques. of Fact.

Inexperienced Servants, 522, 524
541
Infants. See Minors.
Degree of care from, 607
Note on negligence of, 53
Inferences. See Evidence, Notice.
Notes on, 475, 491
Inferior Officers, (public), 515, 518
Injunction, 722
Injuries.
Various kinds of actionable,
enumerated, 491, 492
Classification of, 766
Innkeeper and Guest, 595, 634, 730
Insane Persons, 607, 634
Notes on, 481, 634
Insanity as a Defense, 732
Inspection, (Note), 450
Insurers.
Carriers, not, 544, 556
Masters, as 524
Municipalities, ‘‘ 507
and see those titles.
Insurers and Insured, 596, 634

Interest. See Damages.
Interested Evidence.
See Evidence.
Interference with Streams, 496, 583
See Drainage.
Intermediate Causes.
See Causes.
Intoxication.
See Damages, Owners, Ven-
dors (also Part III, Class C, 752)

 

795
Judgment Rolls, See Evidence.

Judicial Officers, 514, 517

Jurisdiction, 494, 723
Notes on,

Of Buard of Claims, 495

“¢ Superior Court, 349, 476

‘“‘ Supreme ‘ 349
Knowledge.

Of facts, necessity of, 489

‘¢ servants, see Servants.
See also Contrib. Negligence, 613
ss Memory, Notice.

Landlord and Tenant, 573, 586, 587
629, 630, 638
See also Owners of Real Prop.

Law of Road, 561, 626
Note on, 222
See Damages, Right of Way.

Lawyers, 596

Legislation.

Notes on,
Slovenly, 515, 563, 711, 715, 730
Tricky, 419, 726
Lessees, 573, 587, 629, 630

See Contrib. Neg., Owners of
Real Prop., Tenants.

Lessors, 573. 586
Liability.
Of Carriers, Masters, Muni-

cipalities. The State &c.,

see those titles.
Of carrier under tricky bill of

lading, 560
Limitation of, see Limitations,
Notes on,

Of abutters for damages

from smooth coal-hole

covers, 307
** ferry co’s as carriers of

animals, 128
‘“‘lessors of places of

' public resort, 288

‘« manufacturers for explo-
sions of defective boil-
ers in populous places, 93
 

796 INDEX. [ REFERENCES
Of masters, in general, see Manager, 531
Masters, See also, Alter Ego, Co-
‘¢ masters empl. children Servant.
at dangerous machines, 524 | Manufacturers, 506

‘* municipalities to aliens, 499
a 7 collecting
water indefective pipes, 387
* See also Municipalities,
‘* owners of private prem., 445
Licencees, 573, 584, 629, 630, 634
See also Owners of Real Prop.
Life, Saving of, 607, 609
Limitation.
Contracts of, see Defenses,
Statutes « « “
Of damages, ‘‘ Damages.
‘‘ liability of carriers, 543, 544
555, 556, 557, 655
Notes on limitation of liability,
41, 339, 544, 559

Loading of Vehicles, 524, 538
Loss.
Of Earnings, ]
“ Profits, — |
« Time, | See Damages.
** Use, J
Loss of Services, 491, 492, 667
See also Damages.
Note on,
Loss of, in death cases, 186
ee servants, 667
Machines, 523, 524, 537, 611

Antiquated, 523
See Contrib. Neglig., Master.
Malpractice.

Of architects, : ;

“ doct®rs, ae Professional

** lawyers, Men.
Management.

Of animals, 571

** boats, 551

** rafts, 572 |

** stages, 551

‘* street-cars, 551, 570

“« trains, 550, 567

‘“* vehicles, misc.,

524, 538, 571

 

Note on liability of, for explo-
sions of defective boilers in

populous places, 93
Master.

In general, 520
References to statutes, 524
Respondeat superior, 525
Scope of employment, 527
Contractors &c., 528
Co-servants, 530
Liability for, 530
Who are, 531
Concurring negligence of, 532
Transportation of, 532
Serv. of different masters, 532
Master's duties, 533
As to rules, 533

“© seeing rules obeyed, 534

‘¢ competentserv., 535

“ suffic. no. of serv., 535

‘© safe place, 536

‘© defective machines, 537
ad ue vehicles, 538

“loading Be 538
‘¢ managem. of ‘‘ 539
** tools and appliances, 539
‘“s safety se 540
Minors, 541
Inexperienced servants, 541
Delegation of master’s duty, 542
Vigilance of master, 542
Waiver by servant, 542
See also The State. Muni
cipalities,
Notes on,
Alter ego, 521, 522
Delegation of duty to con-
tractors. 523
Resp, super., 520, 521
Seats for females, 525

Masters of Vessels, 597, 639, 640, 733
Maxims.
Proxima non remota causa
spectalur, 704,
Res ipsa loguitur, 677
ARE TO PAGES, |

InDEx.

797

 

Respondeat superior, 500, 503, 502

521, 524, 525
Sic utere tuo ut non alienum
laedas, 509, 572
Volentt non fit.injuria, 607
Maze of Tracks. See Crossings.
' Note on, 343
Members of Clubs, Corpora-
tions &c., 595
Medicine.
See Expenses, Poison.
Memory, 614, 626, 628

See Contrib, Neg., Knowledge,
Notice. Servants, Travellers.
Militia Officers, 514, 518

Minors, 522, 524, 541, 614
* See also Children, Masters,
Servants,
Miscarriage. See Damages.
Miscellaneous,
Defendants, 589, 590, 606
Officials. 515, 518
Plaintiffs, 631
Subjects, 721, 730
Abatement, 721, 732
Assignability, 721
Constitutional questions, 722
Contract or tort, 722
Injunction, 722
Jurisdiction, 723
Notice, 723
Nuisance, 724
Ordinances, 724
Payment, 725
Presentment of claims, 725
Recovery over, 726
Res adjudicata, 727
Satisfaction, 728
Statutory causes, 728
Civil Dam. Act, 728
Death Act, 729
Other acts, 729
Trespassers, 731
Various rulings, 731
Mistakes, 637
See also Telegrams,
Mistakes,

Of witnesses as to location.
See Evidence, Discrediting a
‘party.

 

 

Mitigation of Damages,

See Damages, Evidence.
Mixed Questions of law and fact, 489
Mother.

Suit by for loss of services, 667

Municipalities.

In general. 498-502
References to statutes, 502
In general, 502
Respondeat superior, 503

In general, 503
Contractors, 504
Special officials, 505
As neighbors, 505
Notice, 506
Funds, 507
Not insurers, 499, 507
Plans, 507
Permits, 508

Highways, : 508
What are, 508
Alleys, 509
Bridges, 509
Docks, Piers, Wharves, 509
Drainage, 509
Drains, 510
Embankments, 510
Grading, 510
Navigable streams, 510
Roads, 510
Sewers, Sir
Sidewalks, 5Ir
Streets, 511

Notes on,

Liability, when building
without authority, II

Liabil, for defective sewers
and defective highways,

rules in, compared, 5o1
Liabil. for clogged sewers, 182

i “ escaping water

collected in pipes, 387

The most carelessly managed
municip. in the state, 419, 738
Tricky legislation in regard
to cities, 726
See also Defenses, Evidence,
Miscellaneous Subj., Prac-
tice, Questions of Fact.
 

798 InDEx,. [ REFERENCES
Navigable Streams, 499, 510 Foresight, 475, 491
Navigation of Canals, 494 “Gross”, 17
See Contributory Negligence, Imputed, 56, 345
Ques. of Fact. Infants, 53

Negligence.

Ln general, 485-493
Definition of, 486, 487
Evolution of law of, 488
Question of law rather than

fact, 488

Actionable or causative,

Of the State, 494
‘* municipalities, 498

‘* quasi mun. bodies, pub.
officers, pub. contr., 514

‘* masters, 520
‘“* carriers of passengers, 543
- . goods, 555
‘« travellers on highway, 560
** occupants of es 560
“* owners of real prop., 572
“« lessees ‘ es 572
“licensees on ¢ 588
‘* miscell. defendants, 589

See also these various heads
for sub headings.
Contributory negligence,

In general, 607
Of servants, 609
‘© passengers, 615

‘* travellers at crossings, 620
“s ss along highw., 625

‘* owners of real prop., 629
“lessees ‘* . 629
“licensees on « 629
“ miscell. plaintiffs, 631

See also these various heads
for sub headings.

Lmputed Negligence,
In general, 638
Of pardhts, 639
‘ drivers of private veh., 640
““ common carriers, 640
‘* masters of vessels, 640
Notes on, :
Comparative, 738
Contributory, 490, 607
Definition of, 486 |

Evolution of law of, 4, 16, 60
485, 763

 

Question of law’ rather than
fact, 37, 144, 481, 486, 641

See also Defences, Pleadings,
Questions of Fact.

+

Neighbours.
Duties of, 574, 579; 733
Contrib. neg. of, 629, 630

The state as a neighbour. See
The State.
Municipalities as, see Muni-
cipalities.
Owners of real prop. as, see
Owners of Real Prop.
R. R. Co’s as, see Owners of
Real Prop.
Next of Kin.
See Assignability, Damages,
Death Act, Pecuniary Loss.
Nominal Damages.
See Damages.
Nonsuit, 643, 716
See Evidence, sud mom., Burd.
of Proof, Practice, Miscell.

Subj.
Notaries, 597
Notice.
Of facts out of which duty
springs, 489, 731
Constructive,
Inferences, 683
Ques, of fact, 641
Abolished as to city of
Cohoes, 733
Length of time, 724, 733
See Inferences.
Note on, 500
Duty to give,
Of passenger to carrier, 618
** serv. to master, 611
Inferences of, 683, 724
Of Danger, 628
Ques. of fact, 127, 641, 644
To carriers
By passenger, 618

Of intox. of serv., 723
 

ARE TO PAGES. | INDEX. 799
To masters, Municipality and citizen,
In general, 524 Of obstruction, 19, 161, 481
Of defects, 537 ‘* excavation, 26
“* incompetency of serv., 535 ‘* defect in highway, 305
‘« intoxication of serv., 535, 723 s ‘« sewer, 68, 105
Servant must give of need 290, 314, 419, 476
of repair, 611 “ice on sidewalk, 166
To municipalities, ‘« impurity ot water, 384
In general, 500, 501 “ riot, 7O
Of defects or obstructions Owners of Property,
in highways, 127, 501 Personal,
506, 508, 511, 512, 513, 733 Defective fences, 26, 85
‘“« nuisance, 500 Defective, 181

To policeman, sufficient, 266, 657

To owners of pers. prop. lent
to another, defects in, 181

‘’R. R. Co’s of laying out

of highway, 569
“« servants, 610-614
‘© street-car Co’s, of condi-
tion of track, 680
“ travellers, of defects in
highway, 625
“« vendors of liquor, 723
See also Defences, Knowledge,
Memory, Negligence.
Special index of cases in Part
f, involving questions of
noltee,
Carrier and passenger,
Of defects, 22, 45, 101
To stop, 51, 78
Not to ride on platf., 53, 248
Carrier and shipper,
Of arrival, 72, 121, 122
‘** contents, 184
“* defective car, 33
** shipment, 81
To second carrier, 33, 61
Civil Dam. Act, 368, 437
Innkeeper,
To guest, 34, 92, 97» 274
Landlord and tenant,
Of defective boiler, 144
es ee gallery, 288
mA we premises, 414
Master and servant,
To repair, 16, 406

Of defective premises, 41, 83
209, 237, 276, 277
‘« incompetency, 139

 

Viciousness of animals, 10
178, 206, 207, 372, 455, 468
Real,
Defective flagstone, 29
Railroad Co’s,
Of defective fences, 26, 85
“construction of high-

way, 177
Restriction of liability by, 8, 113
401
Users of highway,
Of defect in, 122, 235
Miscellaneous,
Of claims, 65
“* collusion, 114
“ protest, 7, and see
Banks, Agents.
‘* suit, 83, 456
Nuisance, 492, 500, 625, 724

See Defenses, Notice.
Nurses. See Expense.

Obedience, 524, 534, 613, 615
See Master, Passenger, Servant.
Obiter Dicta.

Notes on, 4, 161, 180, 299
See also Preface.
Obligors, 597
Obstructions.
At crossings, 624

In highways,
See Notice.
Occupants, of Highways,

See Travellers.
Ocular Evidence.
See Evidence.

566, 577, 733

560
 

800 INDEX. [REFERENCES
Officers. Fires, 580, 733
Public, 514 Blasting, 581
Administrative, 514 Digging near line, 582
Assessors, 518 Water, flooding, draining,
Commissioners of highways, 516 &c., 583
Inferior, 518 Water, disch. into streams, 583
Judicial, 517 Streams, 583
Militia, 518 As to persons coming on, 584, 630
Miscellaneous, 518 By invitation or permis-
School, 515 sion, 584
Sheriffs, 517 Crossing railroads, 585
- Supervisors, 518 Without permission, 585
Private, (t. c. of corporations), 597 As to animals, 586

See also Defenses,
Old Machines. See Machines.
Opinions. See Evidence.
Notes on,
Lengthy opinions of courts,
(see also Preface), 13, 414

Curious instance of a judge
in Court of App. wrongly
overruling his prior opin-
ion as Sup. Court judge, 49

Ordinances, 490, 724
Note on, 59
Overflow.
Canal, : 495

See also Municipal., Owners
of Real Prop.

Owners.
Of personal property,

Of animals, 598, 634
‘* com. paper, 636
‘* miscellaneous prop., 599, 636
‘* vehicles, 635

‘* vessels,

Of real property,
In general, 572, 629
References to statutes, 575
Quasi public premises, 576

Piers docks, Wharves, 576
Thoroughfares, halls, &c., 577

598, 635, 732, 733

Private premises, 577
As abutters on highways, 577
Obstructions of, 577
Excavations in, 578
fe near, 578
Sidewalks, 578

As neighbours, 579; 630, 733
Fences, 579

 

Questions growing out of
relation of landlord and

tenant, 586
Lessors, 586
Lessees, 587, 630

Remainder men, 588
Licensees, 588
Under Civ. Dam. Act, 588
Walls falling, 733
Miscellaneous, 588.

See also Defenses, Evidence,
Questions of Fact.

Notes on,
liability of owners of, 445
s ‘* lessors of public
resorts, 288

Ownership. See Evidence of.

Pain. See Damages, Evidence.
Parcels, Express.
Cases against carriers of, 765°
See Express Co’s.

' Parent.

Negligence of, imputed,

See Loss of Service.
Parole Evidence.

See Evidence.

638, 639

Parties.
To actions, 599, 636, 709, 712
“ instruments, 600, 637
‘¢ mistakes, 637
Acts of. See Evidence.

Party, Discrediting, when wit-
ness, see Evidence,
 

ARE TO PAGES. ] INDEX. 801
Passengers. Piers, (see Docks), 498, 509, 576
Negligence of, Plaintiffs, Classification of, 737
References to statutes, 615 | Plans, 498, 507
Before getting on, 616 | Platforms.
Risk as to vehicle, 616 See Contributory Negligence.
Getting on, 616 As unsafe places, see Master,
Riding on platform, 617 Carrier.
Seats, 617 | Pleadings, 709, 713.
Preparing to get off, 618 Notes on,
Getting off,. 618 Demand of damages, 709
After getting off, 619 Prolixity of, 710
Miscell. acts, 619 As evidence, see Evidence,
See also Carrier and Pass., Demurrer by directors, 734.
Defenses, Ques. of Fact. Pledgor and Pledgee, 590, 603
Passers-by. Poison.
See Highways, Travellers on See Malpractice, Vendors.
Highway. Practice.
Passes, 655 In general, 709
Notes on, 41, 330, 544 Presentment of claims, 715
Paths, 585 Joinder of causes, 715
Patients, (see Phys. and Patient), 637 Before trial, 716
Payment, 655, 663 Pref. on cal., 734
See Satisfactlon, At trial, 716
Pecuniary Loss. See Injury. (1) Objections, 716
Percolations, 495 (2) Amendment, 716
Penal Code. See Codes. (3) Nonsuit, 716
Permanency, of Damages. (4) Direction of Verd., 717
See Damages, Evidence. (5) Charge, 717
Permits, 499, 508, 568 (6) Verdict, 718
See also Defenses. After trial, 719
Personal Injury. On appeal, 719
See Physical Examination. Note on review of facts in
*¢ Note on act as to. 7M Court of Appeals, 107, 364
Personal Property. Precautions, 613,
Owner of. See Owners. Presentment of Claims against
Removal of, reckless, 731 municipalities. See Defenses,
Persons. Practice, Misc. Subj.
In miscellaneous situations. 637 | Premises.
“« trust relations, 600 Of the State, Municipalities,
Physical examination of plain- Carriers, Owners of real
tiffs, see Examination. prop., ste those titles.
See also Defendants, Plaintiffs. Presumptions, 681, 732, 733
Physical Examination. bee Evidence.
See Examination, Evidence. Principal and Agent, 499 591
Physician and Patient, 603, 637 See Masters.

See Evidence.
Physicians.
As experts, see Evidence.

Bills of, as damages,
Expenses, Evidence.

see

 

Private Crossings, (see also

crossings), 585
Privileged Communications,

See Evidence.
Privity, Want of, 665
 

802 INDEX. [REFERENCES
Procedure. Questions of Fact.
Code of, In general, 641, 643
«© Civil, See Cordes, Nonsuit, 643
Professional Men, 589, 603 Notice, 644
Profits, Loss of. Highways, 644
See Damages, Evidence. “What are, 644
Prolixity of Pleadings. Municip. defts., 644
See Pleadings. Railroad crossings, 645
Promissory Notes, Holders of, 634 (1) R. R. co’s, 645
See also Com. Paper. (2) Persons, 645
Property, Saving, 607, 609, 731 Travellers along, 647
See Owners of Pers. Prop. (1) Defts., 647
as “Real * (2) Pifts., 647
Prospective Damages. Masters, 648
See Damages. Servants, 648
Protest, Neglect to give Notice Carriers, 649
of. (See Agents, Banks.) 7 Passengers, 650
Protection by Carrier. Real Property, 651
See Carrier. ' Owners of, 651
Protection by Master. Tenants and others on, 651
See Master. Tracks crossing each other, 651
Proxima non remota &c., 704 Owners of vessels, 652
Proximate Cause. See Causes. Children, 652
Public. Imputed negligence, 652
Buildings. See Municipalities, Miscellaneous, 653
Contractors, ‘* Contractors. Notes, 37, 144, 481, 486, 488, 641

Crossings. ‘* Crossings.
Improvem. ‘* Municipalities,
The State.
Officers. See Officers.
Parks. ‘* Municipalities,
Premises, ‘‘ se
“ Quasi. ee “cc
Resorts. ‘“ «« Lessors.
Works. ae at
See also The State, Owners of
Real Prop.
Purchasers, (see also Vendors), 604
638

Purveyorg, (see also Evidence), 604

Quasi-Municipal Corporations, 500

514

““ Public Premises, (see
Owners), 576, 577
Questions, Constitutional, 722

See also Jurisdiction.

 

Questions of Law and Fact,
(mixed), 488
Qui Facet per alium &c.
See Master.

Rafts, Management of, 572
Railroad Companies,
As carriers. See Carriers.
‘* neighbours,** Owners of
Real Prop.

Railroad Laws, See Statutes.
Real Property. See Owners of,
Receivers,

In general, 604
Of R.R. co’s. See Carriers,
Recovery over, 726
Regulations of Carrier, 545
See Rules.
Relation of Carrier and Pas-
senger, 544, 546
Release, See Satisfaction, Waiver.

Reliance on Master. (See Ser-
vant), 613
 

ARE TO PAGES. | InDEx. 803

Remainder-Men, 538 As to proof of similar accidents, 697

Removal of another’s Property, 731 “* res ipsa, log., 677

Remote Causes, 588 “resp. super, 520, 521
: ‘© liability of owners of

Repairs: rivate prem 445

Of highways. See Highways. © qatie ak tc

“Mase iability of lessors of

By masters, Bove public resorts, 288

Reporters, (see also Experts), 604
Notes,
Duty of law reporters, (see
also Preface), 3, 189, 266, 409
Appropriating head-notes, 343

Res adjudicata, (see also De-

fenses) 727
Rescuing persons or property, 607
609, 637

Res Gestae.

See Declarations, Evidence.
Res inter alios. See Evidence.
Res ipsa loquitur.

(Note), 677
Respondeat superior, 500, 503, 520
521, 524, 525
Review of Facts.
Notes on, 107, 364
See also Questions of Fact.
Riding, 628
Right of Way, 561, 564, 626

Rights of Action, enumerated, 491
Risk.
Of servants.
Servants.
Of passenger.
Passengers.
Road, Law of, 561, 626
Road-bed, 543, 549
See also Carriers, Masters.
Roads, 498, 510, 626
See also Municipalities.
Robbery of Passenger, 555
Rule, Notes on,

See Masters,

See Carriers,

In Flike’s case, 44, 133, 205
245, 321, 459

ee Ryan’s &s 63, 363, 376
479

As to boarding moving vehicl.
284, 350

As to delegation of master’s
duty to contractors, 523

 

liability of municipal-
ities, for defective sew-
ers and highways, 501
Rules, 522, 533, 612
See also Contributory Neg.,
Maxims, Masters, Regula-
tions, Servants.

Ryan Case, Notes on, 63, 363, 376

479

Safe Carriage, (see Carrier), 543, 550
Safe Deposit Co’s,
See Bailees.

Safe Place, (see also Carrier,
Master, Municip., Owners,
Servants), 523, 524, 536

Safety. Appliances.

See Appliances, Master.

Sailors, 638
Satisfaction, 728
Notes on, 131, 258

Saving Life or Froperty.
See Rescuing.
Savings Banks, 604
Scope of Employment.
See Masters.
School Trustees and other offi-

cers, 517, 518
Searchers, 604.
Seats.

In cars, 543, 550, 617

For female employees, See

Statutes.
Sellers. See Vendors.
Servants.
Contributory neghigence of,
In general, 609
Unsafe places, 610
Machines, 611
Tools and appliances, 611
Rules, 612
 

804 : INDEx. [REFERENCES
Doing dangerous things, 612 Overflows, ; 496
Omitting precautions, 613 Diverting water, 496
Reliance on master, 613 Bridges over canals, 496
Obedience, | 613 Sewers, 497
Disobedience, 613 Liability to servants, 497
Knowledge, 613 Death claims, 497
Memory, 614 | Stations, 548
Minors, 614 | Statutes.

See also Masters, Municipal- In general, 490
ities, Questions of Fact, Boards, 515
Defenses, The State, Building, 730

Note on suits for loss of ser- Carriers, 546, 615
vices of, BBY Children, 632

Sea, Law of, 572,626 | Civil Dam. Act, 558

Services. Classification of, 548, 782

Gratuitous, Crossings, 621

See Defenses. ; Death Acts, 672, 728

** also Loss of Services. Employers, 521

Several enone. ; Factories, 730

Note on possibility of three, 667 Fires, (see Penal Code).

Several Carriers, ; 548 Fire-Escapes, 730

Several Defendants. See Parties. Highways, (see also Muni-

Sewers, 497, 511 cipalities), 562

Notes, — Innkeepers, 730
ee ee 182 | Law of road, 561, 626

n between rules ‘
Ge INHIB Way eamdsewers, 501 2 o eA 2 572, 626
3 Limitation. See Defenses.

Sheriffs, 515, 517 >

Shippers. Masters. See Employers.

See Carriers and Shippers, Musicipatiiies, aCe
Consignees, Defenses. Owners of real prop., 575) 577

Shooting. Passengers, 546, 615

Note on accidental, 58 Public officers, 515

Shopkeepers, (see also Lessees, The State, 494

Defenses), 605 Trap-doors for elev. shafts, 730

Sic utere tuo &c., 500, 572 Various states, 673, 729

Sidewalks, 498, 511, 626 See also Class F, Part III, 782

Slovenly Legislation. Notes on,

Notes on. See Legislation. + Slovenly statutes, 515, 563, 711

Snow. gee Ice and Snow.

Special Carriers, (see also
Purveyors), 599, 605
Spectators, 637
Speed of Trains, (see also
Crossings), 561
Stages, Management of, SII
State, The.
In general, 494
- Court of Claims, 494
Percolations, 495

 

715

Tricky ee 712, 726
Substitutes for statutory

requirements, 435

Statutory Causes of Action.
See Statutes.

Notes on, 730, 782, (Class F.)}
Steam Companies, . 606
‘Stockholders, 606
Storms, 555, 731

Note on foresight as to, 475
 

ARE TO PAGES. | INDEX. 805
Streams. Towns, 498
Navigable, 499 See also Highways, Muni-
Interference with, 583 cipalities.
‘See also Neighbours. Tracks.
Street-Cars, Management of, 551 Across highways, 565
Street Commissiones, 516 Along me 565
Streets, 498, 512, 626 Over ts 565
See also Abutters, Comm’r of Several, 623
Highways, Municipalities, Walking along, 623, 731

Travellers.

Subrogation, (see Recovery

aver), 731
Substitutes for statutory re-

quirements, (Note), 435
Succour, Duty of.

(Note). 485 |
Sufficient No. of Servants, 522, 524

535

Sunday, Travelling on, 544, 546, 547

Note as to, I5I
Superintendents, 531

See Alter ego, Co-Servants,
Superintendents of Schools, 517
Supervisors, 518
Supply of one’s place.

See Damages.

Surrogates.
Jurisdiction of, 723
See Public Officers.

Survival of Causes of Action.
See Abatement.

Syllabus. See Reporting.
Telegrams, 559
Cases against carriers of, 765
Telegraph Lines, 566
Tenants.
See Landlord and Tenant,
Lessees.
Theft. See Robbery of Pass.
Thoroughfares, 577
Tickets, Through, (see Car-
riers), 545. 548

Time, Loss of. See Damages.
Tools, 523, 524, 539, 611
Tort. See Contract or Tort.
Tow-ers, 606

 

See also Crossings, Owners of
Real Prop.
Train Despatcher, 532
Trains, Management of, 550, 551
; 552, 567
See also Crossings.
Transportation.
Of freight. See Carrier and
Shipper.
Of passengers,
and Pass.
Of servants. See Master.
Trap-Doors.
See building Law.

Travellers on
and the highway.
Occupants of

See Carrier

Duties of in general, 560
References to statutes, 562
What are highways, 564
Right of way, 564
Tracks along, over, across, 565
Telegraph lines, 566
Obstructions, 566
Excavations, 566
Management of vehicles &c,, 567
Of trains, 567

‘* street-cars, 570

‘* other vehicles, 571

** animals, 571

“ vessels, 571

* rafts, 572

Contrib. neglig. of,
At crossings,
In general, 620
References to statutes, 621
Crossing in sight of trains, 621
Looking or failing to look, 622
Failure to keep looking, 622
When driving, 622
Driven by another, 623
 

806 InveEx.
Several tracks, 623 Management of on highway,
Walking along tracks, 623 Of trains, ; 567
Company’s acts as excuse, 624 ‘¢ street-cars, 570
Miscell. acts, 624 ** other, 571
Along highway, sPassenger’s risk as to, 616
In general, 625 See also Owners of Pers. Prop.
References to statutes, 626 | Vendors, 606, 638
On sidewalks, 626 | Verdicts.
In streets or roads, 626 Classification of, 766
In alleys, 627 Notes on amounts of, 82, 269, 766
Over bridges, 627 | Vessels.
Driving, 628 | ° Management of, 551
Riding, ’ 628 Owners of, 598
Notice of danger, 628 See also Carriers, Owners of
Sunday, 544, 547 Pers. Prop.
Note on, Ist | Vigilance.
oS 2 mega Doren Of master, : 524, 542
ence, Highways, Muni- : : ;
cipalitics, Questions of Fact. pie REPS neS
TeeenAee 492 illawes, (see also Municipalities) 498
PERSP AREEES, Volenti non fit &c., 607
Persons, 545, 585, 731
Animals, ; 586 Waiver.
a oe eae is By passenger, (see Passes), 659
Tricky Legislation. S Sefvanh 504, 642, eS

See Legislation.

Truisms.
Notes on, 134, 257
Trustees, 590, 606
ts school, * 517

Ultra vires. See Defenses.
Unsafe Places.
See Carriers, Masters, Muni-
cipalities, Owners, TheState.

Also Passengers, Servants,
Travellers.

Users

Of the highway. See Occup.,
Travellers.

Of pefsonal property, 606
See Bailees, Hirers.

Vehicles.
Carriers’, 543) 540, 706, 731
Drivers of, (imp. neg, of), 639, 640
Masters’,

Defective, 524, 538
Loading, 524, 538
Management of, 524, 538

 

Walking along track, 623, 731
Warehousemen, (see Bailees), 606
Warning.

Of passenger, : 553,
‘* servant. See Masters,
Railroad Law.
Watching Parades, 637
Water, 496, 499, 583

See The State, Municipalities,
Neighbours, Owners.
Note on collecting water in

defective pipes, * 387
Way, Right of, ‘561
Warfingers.

See Owners of Real Prop.
Wharves, 576

Seealso Docks, Municipalities,
Owners of Real Prop.
Widow. See Death Act.
Wife, Damages to, 667
Works, Public.
See Public Improvements.

Yard Master, (see Co-Servant), 533